By: Laura Montaño
Since the covid-19 health crisis and the consequent economic crisis began, around the world a spotlight has been placed on private companies due to their responsibility in human rights violations. The pandemic has had a major impact on vulnerable communities, specifically those affected by development projects and this has been seen in increased conflicts related to inequality, violence, militarization and, surveillance. Civil society organizations are watching the behavior of these companies and are monitoring the international policies implemented in relation to companies’ coronavirus response, specifically in Latin America, but also in other regions of the planet.
Often when faced with social-environmental conflicts, we only think about two stakeholders: the State and the community. This is due to the fact that, historically, the international community has maintained this dual perspective in relation to human rights. However, there are other many stakeholders who influence the impacts, decisions and how conflicts develop. In addition to the aforementioned parties, there are national or international private companies, national or multilateral banks, and others from the non-public or social sphere. In 2011, the United Nations Human Rights Council broke this duality and accepted, by means of resolution 17/4, the Guiding Principles on Business and Human Rights.
The Guiding Principles created an international reference point for States, companies (national and transnational), and civil society with a direct or indirect relationship with commercial and business activities. The United Nations grouped 31 principles under the following three pillars:
States have the obligation to protect human rights from possible impacts from third parties, including companies.
The companies have the responsibility to respect human rights, as an enforceable “global standard of conduct” applicable to all companies.
It is necessary to act proactively regarding the risks and impacts that individuals undergo due to a companies’ activities and facilitate access to reparation mechanisms.
Currently, the guiding principles are understood to be voluntary for both States and companies. Since they were developed, civil society organizations have promoted the creation of a treaty to regulate the obligations included in the principles on human rights to guarantee their effectiveness. If the principles for companies and their relationship with human rights were understood as a binding treaty for the States, they would no longer be a behavior model and would become be part of the countries’ constitutional block. That is to say, they would guide national policies concerning corporate responsibility on human rights.
On the other hand, although these principles represent a notable advance, their approach is problematic. In the principles, companies are understood as a stakeholder that does not affect, in a differential manner, different communities. That is to say, it doesn’t recognize the intersectional nature of cultures. On this matter, Colombia’s Mesa de Empresas y Derechos Humanos (Companies and Human Rights Roundtable) calls for the incorporation of differential approaches (ethnic, gender, minorities, migratory condition, condition of disability, etc.) in the principles and an express intersectional approach, with a focus on the impacts for women and children, as an interpretation and implementation criterion. The roundtable highlights that inequality impacts different stakeholders differently, according to their identity. This is why it is essential to guarantee a differential approach in the principles and policies that look to mitigate the impacts generated by companies. Similarly, these sectors highlight the importance of including invisibilized sectors, such as small-scale farmer communities, the rights of nature, and the collective dimension of human rights.
In Colombia, when you talk about companies and human rights, the conversation stems from the repeated abuses and violations of rights and liberties that have affected communities, nature, and territories with the involvement of national and transnational companies. These infringements have had a deep-seated impact on the Colombian social conflict. The repeated civil society demands in response to these situations has increased visibility on the relationship between companies and human rights in the national public agenda, nevertheless, the government commitment to implement the principles is not yet clear.
For example, Colombia decided to implement the Guiding Principles on Business and Human Rights using governmental action plans. In 2015, the process began to develop the Plan Nacional de Acción sobre Derechos Humanos y Empresa (National Action Plan on Human Rights and Companies) (2015-2018). This plan was constructed in line with the National Human Rights Strategy 2014-2034. Currently, there is an updated proposal for the National Action Plan. The following elements of the plan are particularly noteworthy:
The mining-energy, agribusiness, and road infrastructure sectors are a priority in the plan due to the high-level of social conflict in relation to impacts on human rights and the environment.
Regarding civil society participation, multi-actor dialogue spaces must be created to prevent or mitigate adverse impacts derived from business activities.
The development of mechanisms and instruments for the practical implementation of due diligence in human rights will be promoted within companies and public entities.
Judicial and administrative mechanisms for access to remedies, as well as mechanisms for non-judicial remedies, will be strengthened.
The Mesa de Empresas y Derechos Humanos made statements in 2015 and 2019 about the National Action Plan on Human rights and Companies. The main gaps and problems identified are as follows:
Before writing the Plan –both the original and its updated version– prior, free, and informed consultation processes were not carried out with ethnic groups, nor was the text broadly consulted with civil society organizations and groups and communities from the regions where these conflicts are deep-seated and historic.
Meetings to share the Plan in different cities throughout the country is not equivalent to a true participation process, as the government disregarded multiple complaints on human rights, labor, and environmental violations and abuses related to company actions in the energy, agribusiness, mining, gas, coal, oil, and infrastructure sectors, among others.
The document is still not publicly available on the Presidential Human Rights Adviser’s website.
The text wasn’t preceded by a baseline to analyze sociopolitical and territorial contexts and the effectiveness of public policies on this issue. The aforementioned contexts indicate serious violations of individual and collective rights and fundamental liberties, as well as negative impacts on nature.
The Plan continues to omit the perspective that companies cause, in effect, harm to the environment and people’s sources of livelihood.
Additionally, although it was presented as an action plan, it lacks the definition of concrete actions and those of the entities responsible for its implementation. That is to say, it is impossible to identify a public policy in the plan to guarantee the protection of human rights.
Also, the focus of the text is not oriented to address human rights violations and abuses related to business conducts: its aim is to improve the “advantages for business investors” and it does take pause to recognize business actions that result in the persecution of and attacks against social leaders and defenders of land, territory, and the environment. This demonstrates how a policy that must be focused on human rights, was written to favor businesses.
However, human rights violations related to business conducts are not only due to the non-compliance of national laws and judicial rulings. To continue with this mindset is to ignore the social complexities resulting from the presence of large companies in territories with an absent State.
In Colombia, social-environmental conflicts are penetrated by multiple contexts and situations that lead to an intensification of human rights violations. Communities need adequate knowledge and analysis tools to denounce and exercise their rights in the territories, allowing them to prevent and mitigate impacts. Nevertheless, communities cannot continue to be held responsible for the protection of and guarantees for their fundamental rights. It is the Colombian State’s obligation to promote the collective construction of a public policy for Businesses and Human Rights and it must do so by means of an effective participation process, with clear and equal conditions and guarantees for the victims of these impacts. And it is the State’s obligation to guarantee an effective action plan to protect human rights in response to company actions.
Humans Rights Watch. Development Finance for Covid-19 Crisis Should Uphold Human Rights. (2020) Taken from: https://www.hrw.org/news/2020/05/18/development-finance-covid-19-crisis-should-uphold-human-rights
 United Nations Guiding Principles on Business and Human Rights. (2011) UN
 Declaración pública de las organizaciones no gubernamentales ambientales, sociales, de desarrollo y de derechos humanos. December 2019. Consulted on June 18, 2020 in https://coeuropa.org.co/declaracion-publica-de-las-organizaciones-no-gubernamentales-ambientales-sociales-de-desarrollo-y-de-derechos-humanos/