This week has been a big one in the world of corporate accountability, with the release of the US Supreme Court opinion in Kiobel v. Royal Dutch Petroleum on Wednesday. I encourage my fellow lawyers (and anyone else) to read the opinion, and also to peruse some of the thoughtful commentary on what happens next. In terms of future litigation, this piece by Roger Alford outlines the advantages of transnational tort litigation as a legitimate alternative to lawsuits under the Alien Tort Statute (now presumed dead for international human rights cases). Having contributed to an amicus curiae brief on the case, the ruling is a personal disappointment for me, but I strongly believe that we have yet to exhaust the creativity of the international legal community when it comes to holding corporations accountable for human rights abuses.
While civil lawsuits are critically important to provide victims with redress (an essential component of the Protect, Respect, Remedy Framework which girds the UN Guiding Principles), I tend to focus on prevention of these harms in the first place by working with corporations to address their human rights impacts prior to undertaking projects with potential human rights risks. That being said, I openly acknowledge that this forward-looking approach is insufficient to address the many instances where corporate behavior has already caused harm to a population. As an illustration of a grave situation where a corporation has refused to address the obvious human rights impacts of its operations (despite its statements to the contrary), one need look no further than the situation at the Cerrejón mine in La Guajira, Colombia, which I would like to share with you here.
Cerrejón’s operations are located in La Guajira, a semi-desert region in the northeast of Colombia. Its principal open-pit coal mine is co-owned and operated by BHP Billiton, Xstrata, and Anglo-American, and produces 32 million tons of coal annually. As a result of its mining operations, which have been ongoing in the region for 30 years, at least 30 indigenous and Afro-Caribbean communities have been displaced, destroyed, or disappeared. Up to 13,000 hectares of forest have been destroyed, causing displacement of wildlife and permanent damage to the natural ecosystem. New illnesses never before seen in the region have arisen and become endemic. Of the 10,000 workers employed at the mine, 60% work as subcontractors and are denied the right to form and join trade unions, a core labor right under international law. Evidence of bribery and blackmail has been discovered implicating the companies in a plan to influence the reform of local land use laws, as well as evidence of attempted bribes to community leaders to silence their opposition to the companies’ plan to divert the Ranchería river. When the Ministry of the Interior announced an investigation into these bribery allegations, the river diversion project was promptly suspended, and remains so today. Still, the damage is widespread, affecting the very fabric of these communities and resulting in a grave socio-economic crisis in La Guajira.
For its part, Anglo American has just released its 2012 Sustainability Report, in which Chairman Sir John Parker has this to say: “To be able to make meaningful change, we have to be prepared to engage, and understand what really matters to people living near our operations.” Sadly, these words ring empty in light of the situation in La Guajira.
The purpose of this post is to bring awareness to the situation in La Guajira, and to encourage us all once again to be mindful of our actions as investors and consumers. While I have never before professed to being an environmentalist, the situation in La Guajira has made clear to me that the connection between environmental damage and human suffering is direct and immediate. It is not an attenuated problem that we will shoulder our grandchildren with; it is an urgent contemporary issue that is devastating communities and individuals at this very moment. As long as we remain dependent on fossil fuels, suffering of the type seen in La Guajira will perpetuate unless and until we can secure new norms of corporate behavior that eliminate human rights abuses.
I remain committed to working with corporations proactively to prevent these abuses from occurring, but I also see the need for alternative advocacy strategies, as I mentioned in my previous post. In light of the Kiobel ruling and the persistent disconnect between Anglo American’s corporate PR and the actual situation in La Guajira, I urge us all to think creatively about how we can continue to advocate for change.