Seeking Justice: Access to Remedy for Corporate Human Rights Abuse 1009293249, 9781009293242

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seeking justice Seeking Justice: Access to Remedy for Corporate Human Rights Abuse explores victims’ varying experiences in seeking remedy mechanisms for corporate human rights abuse. It puts forward a novel theory about the possibility of productive contestation and explores governance outcomes for victims of corporate human rights abuse across Latin America. This foundation informs three pathways that victims can use to press for their rights: working within the institutional environment, capitalizing on corporate characteristics, and elevating voices. Seeking Justice challenges common assumptions in the governance gap literature and argues instead that greater democratic practices can emerge from productive contestation. This book brings to bear tough questions about the trade-offs associated with economic growth and conflicting values around human dignity – questions that are very salient today, as citizens around the globe contemplate the types of democratic and economic systems that might better prepare us for tomorrow. Tricia D. Olsen is Associate Professor and Associate Dean at the University of Denver’s Daniels College of Business and holds a joint appointment at the Josef Korbel School of International Studies. Olsen’s work on human rights, political economy, business ethics, and transitional justice has been supported by the National Science Foundation, USAID, and Fulbright, among others.

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GLOBALIZATION AND HUMAN RIGHTS The series provides unique and multidisciplinary perspectives on the interface of the global economy and human rights. It offers space for exploring the challenges of globalization, the role of human rights in framing and shaping regulation and politics, and, more critically, whether human rights are a mere product or legitimation of globalization. Series Editors Malcolm Langford César Rodríguez-Garavito Forthcoming Books in the Series Jeremy Perelman, The Rights-ification of Development: Global Poverty, Human Rights, and Globalization in the Post-Washington Consensus

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Seeking Justice access to remedy for corporate human rights abuse TRICIA D. OLSEN University of Denver

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Shaftesbury Road, Cambridge cb2 8ea, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781009293242 doi: 10.1017/9781009293280 © Tricia D. Olsen 2023 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published 2023 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Olsen, Tricia D., author. title: Seeking justice : access to remedy for corporate human rights abuse / Tricia D. Olsen, Associate Professor, Daniels College of Business, Korbel School of International Studies, University of Denver. description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2022. | Series: Globalization and human rights | Includes bibliographical references and index. identifiers: lccn 2022039956 (print) | lccn 2022039957 (ebook) | isbn 9781009293242 (hardback) | isbn 9781009293259 (paperback) | isbn 9781009293280 (epub) subjects: lcsh: Corporation law–Latin America–Criminal provisions. | International law and human rights–Latin America. | Remedies (Law)–Latin America. | Liability for human rights violations–Latin America. | Tort liability of corporations–Latin America. | Social responsibility of business–Law and legislation–Latin America. classification: lcc kg574 .o47 2022 (print) | lcc kg574 (ebook) | ddc 342.808/5–dc23/eng/2 0221101 LC record available at https://lccn.loc.gov/2022039956 LC ebook record available at https://lccn.loc.gov/2022039957 isbn 978-1-009-29324-2 Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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To Ysa, Owen, Claire, William, Peace, Zoe, Charles, Addie, and Wren With love and hope for all that is to come.

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Contents

page ix

List of Figures

xi

List of Tables Preface and Acknowledgments

xiii

List of Abbreviations

xvii

1

Human Rights in the Corporate Context: The Challenge of Accountability

1

2

Varieties of Remedy: How Contestation Shapes Governance

25

3

The Corporations and Human Rights Database

47

4

How Contestation Shapes Access to Judicial Remedy Mechanisms

68

How Contestation Shapes Access to Non-Judicial Remedy Mechanisms

110

Does It Work? How Contestation Shapes Democratic Practices

143

Conclusion: Implications of the Varieties of Remedy Approach

166

5

6

7

Appendices

177

Appendix A: Corporations and Human Rights Database Coding Guide (Abridged)

179

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Contents

Appendix B: Data and Models for Chapter 4 – Data Sources and Operationalization Appendix C: Data and Models for Chapter 5 – Data Sources and Operationalization Appendix D: Data and Models for Chapter 6 – Data Sources and Operationalization References Index

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187 197 207 227 259

Figures

1.1 2.1 3.1 3.2 3.3 3.4 3.5 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 4.11 5.1 5.2

Schema of varieties of remedy approach page 19 Pathways to remedy, general description 39 Categories of corporate human rights abuse 55 Subcategories of physical integrity abuse 57 Corporate human rights violations, by industry 58 Access to remedy for corporate human rights violations 60 Access to remedy, by violation type 61 Complex corporate structure of Pluspetrol (SOMO Fact Sheet, March 2020) 74 Criminal and civil trials over time 78 Civil trials and criminal trials in Latin America 80 Model visualization, varieties of remedy pathways for judicial remedy 91 Marginal effect, rule of law 92 Marginal effect, firm foreign headquarters 93 Marginal effects of profit margin on trial activity 96 Marginal effects of profit margin  foreignness on civil trial activity 97 Marginal effect of size on civil trials and of foreignness and size on criminal trials 99 Model visualization of interaction effects, varieties of remedy pathways for judicial remedy 104 Marginal effect of NGO support on civil trials and of INGO support on criminal trials 105 Model visualization, varieties of remedy pathways for nonjudicial remedy 129 Marginal effect, rule of law 129

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5.3 5.4 5.5 6.1 6.2 6.3 6.4 7.1

List of Figures

Marginal effects for state-led non-judicial remedy in corporate characteristics pathway Marginal effects for size and state-led and corporate-led NJ remedy Marginal effects for INGO and state-led NJ remedy and for NGO*Past Abuse and state-led NJ remedy Marginal effect of allegations on respect for human rights Marginal effect of trials on respect for human rights and empowerment Marginal effect of civil and criminal trials on empowerment and respect for human rights Marginal effect of non-judicial remedy and state-led non-judicial remedy on respect for human rights Pathways to remedy, specific findings

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131 135 137 156 157 159 160 168

Tables

4.1 4.2 5.1 5.2 6.1 6.2

Access to judicial remedy: hypotheses, variables, and expected effect page 81 Access to judicial remedy: hypotheses and findings 108 Access to non-judicial remedy: hypotheses, variables, and expected effect 125 Access to non-judicial remedy: hypotheses and findings 140 An empirical examination of agonism: hypotheses, variables, and expected effect 153 An empirical examination of agonism: hypotheses and findings 161

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Preface and Acknowledgments

Capitalism – and the businesses and states that help form it – has created incredible global wealth and lifted individuals out of poverty at an unprecedented rate. And yet, these systems are also at the heart of severe human rights abuses; not all have benefited equally. When I go to the grocery store, I wonder who picked my food and what the labor conditions were like as they did so. Were they exposed to harmful pesticides? Did they have a safe place to sleep and enough to eat? Were they paid a fair wage? The computer upon which I type contains “rare earths,” some of which may have been mined by children the age of my own. The initial impetus of this research was to shed light on the human cost of our economic system. Yet, as I began to document these abuses, through the creation of the Corporations and Human Rights Database (CHRD), my focus shifted. At its core, this is a book that urges policymakers, academics, corporate leaders, consumers, and community members to consider the type of capitalism – and, frankly, the type of world – of which we want to be a part. Daly and Townsend (1993) pithily stated, “When something grows it gets bigger. When something develops, it gets different” (p. 267). Addressing business and human rights necessarily requires us to distinguish between economic growth for the sake of growth, and development for the sake of change. My personal aspiration is that this research helps us understand the causes, consequences, and – most importantly – potential paths forward for a world with integrity, one in which individuals around the globe can improve their prospects and those of future generations. This book is about people who, after some reflection, realized that something must be done. This book is about people who, despite intimidation, threats, and scarce resources, worked to make their claims heard. This book is, at times, about people who recognized the wrongdoing of which they were a

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Preface and Acknowledgments

part and who sought to make it right. I hope, in some way, this book inspires you to make things right. Small or large, we all have a part to play in doing so. Though this book is an academic exercise and draws on my academic expertise and training – I have long been a student of Latin America, political economy, and business ethics – the book has transformed, somewhat unexpectedly, into a cathartic exercise, as well. Over the past decade, our world has experienced democratic backsliding and the abandonment of norms I took for granted when the project began. While I did not anticipate finding hope in this book, I did. There is hope in the courage individuals exhibit when speaking out about wrongdoing; there is hope when state leaders uphold the rule of law and bring into focus the importance of promoting a type of development that does not disregard human rights, but instead allows them to flourish; and there is hope in corporate leaders who insist that their colleagues treat fellow human beings with dignity and embrace contestation as an opportunity to learn or change, rather than something to silence or repress. I am so very grateful to numerous individuals and institutions that supported me and this research over the past decade. First, I thank my colleagues at the University of Denver’s Daniels College of Business and the Korbel School of International Studies. The support I received from Daniels is a testament to its dedication to business ethics and the public good. Thank you to Corinne Lengsfeld, Paul Olk, Brent Chrite, and Vivek Choudhury for the institutional support you provided to make this work come to life. I would also like to thank our business school librarian, Esther Gil, who early on managed to secure a much-needed database, among many other sources, with incredible ease and speed. I have also grown as a scholar and benefited tremendously from an intellectually stimulating community at the University of Denver and beyond. This project began through conversations Leigh Payne and I had with a member of the UN Working Group on Business and Human Rights. I am grateful to Leigh as a coauthor, collaborator, mentor, and friend. I also owe a tremendous amount of gratitude to Deborah Avant for her willingness to talk through the theoretical framing for the book and her generosity in giving critical, constructive feedback on various chapter drafts. I am grateful for her friendship and her unwavering ability to always find a way forward. Thank you to Christine Lamberson, with whom I have done countless writing sessions across hemispheres and time zones over the years; thank you for your steadfast encouragement along the way. Finally, I cannot express the deep gratitude I have for Laura Bernal-Bermúdez. Laura spent countless hours working on the creation of the CHRD, answered numerous questions about the legal

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xv

intricacies of specific cases or procedures across Latin America, and, perhaps most importantly, has been a dear friend through it all. Thank you to Alvin Camba, Oliver Kaplan, Annie Snelson-Powell, and Harry Van Buren for providing helpful feedback on various parts of the manuscript. Numerous conversations with the following individuals have required me to sharpen my own thinking, methodological approach, and greatly helped make the book what it is today: Kathleen Rehbein, Judith Schrempf-Stirling, Jack Strauss, and Michelle Westermann-Behaylo. I am so fortunate to have a broader community of friends and colleagues from graduate school, who not only provided valuable feedback but with whom I could also commiserate. Thank you to Leticia Bode, Geoff Dancy, Michael Dougherty, Evgeny Finkel, Courtney Hillebrecht, Kelly Jones, Erika Robb Larkins, Margaret Lee, Andrew Reiter, and Becky Schewe. There were many occasions, as well, that I reflected on conversations I had with the faculty at UW-Madison as a graduate student; particular thanks to Scott Gehlbach, Mark Copelovitch, and Aseema Sinha. Thank you to the Department of Business Ethics and Legal Studies, as well as other friends and colleagues at the University of Denver for your encouragement and, at times, much-needed levity: Melissa Akaka, Daniel Baack, Naaz Barma, Rebecca Galemba, Rachel Epstein, Pat Perrella, and Lisa Victoravich. I thank Tom Randall, my editor at Cambridge University Press, and César Rodríguez-Garavito and Malcolm Langford, the Globalization and Human Rights series editors, for their support for this project. Anonymous reviewers provided valuable feedback, for which I am very grateful. The manuscript is stronger as a result, though, all errors are my own. I would also like to acknowledge financial and institutional support I received while conducting this research. Seed money for the pilot project came from the University of Denver’s PROF grant and Faculty Research Funds. This funding was instrumental in later securing the National Science Foundation grant (#1921229), which allowed my team to expand beyond Latin America to create a global database. My sincere gratitude to Chris Avery, the Founder of the Business and Human Rights Resource Center (BHRRC); Mauricio Lazala Leibovich; and Eniko Horvath, with whom I first met in London in 2013. They were open-minded about the creation of the CHRD and supportive throughout. The BHRRC’s support to this work has continued under their current Executive Director Phil Bloomer, Senior Digital Officer Alex Guy, and the BHRRC’s Latin American Researcher Amanda Romero Medina, to each of whom I am very grateful. Thank you to the National Museum of Mexican Art who graciously allowed me to use the woodblock print displayed on the cover by Carlos Córtez, La Lucha Continua

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(The Struggle Continues). Córtez was Chicago-based artist and political activist who spent his life bringing injustices to light. It is an absolute honor to have his work alongside mine. Moreover, I have had the great pleasure of working with outstanding students over the length of this project, including Kathryn Babeneau, Giulia Bova, Amanda Camilotti, Abbey Dahlman, Amelia Didier, Ciara Fernandez Faber, Sarah Boykin Fort, Brandon Goldstein, Gerrit Grande, Matthew Griffin, Kaetlin Henderson, Janet Hernandez, Savannah Hilderbrand, Laura Hosman, Scott Leistiko, Adaku Marizu, William Mateo, Gabriel Martinez, Ben Migdal, Megan Morrell, Brittny Parsells-Johnson, Heather Randall, Jacob Sorber, Jacqueline Stephenson, Megan Takeda, Tess Wasocwicz, Grace Whittle, Tori Wyman, and Tom Zolot. A special thanks to Hasib Nasirullah, for helping to build an incredible research team (during a pandemic, no less!). I conducted the research and wrote this book while also wearing many other hats. I am very grateful for the friendship and support of my Denver “family”: Joan Winn, Rick Ball, Chase and Jess Schmitt, Liz Drogin, Anna Jennett, Scott Weigel, Carrah Torrence, David Babich, and Anna Jones. My thanks to “old” friends for inspiring me through their own work: Amy Cole, Kevin DeGraw, Diana Salgado, and Margie Sollinger. The initial draft of this manuscript was written while on a sabbatical in Chile; I have a tremendous amount of gratitude to the dear friends we made, who welcomed us with open arms: Paula Rudnick, Fran Caceres, Sanne Edeling, Jörg Meyer, and Candy Tatiana Ramírez Velasco. Finally, I owe an enormous thank you to my family. My parents always said they wanted me and my siblings to do well and work hard, but, importantly, did not place constraints on what that meant. I am so appreciative for the foundation and freedom they provided. I am grateful for my siblings, Bill and Christie, who are amazing individuals; I am fortunate to (still!) learn from them and to be influenced by their values, work ethic, outlook, and intellect. My thanks to Marty, my brother-in-law, for his encouragement and frank advice on navigating academia, and to my in-laws, Bonnie and Larry Fowler, for their enduring interest in, and appreciation for, this work. My deepest gratitude goes to John: I am in awe of your generosity and positivity. Thank you for your unconditional support throughout this project and, more importantly, for sharing this life with me.

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Abbreviations

AHOMAR AIDA APGIG ASOCAB ATS BAES BHRRC CAO CEDAAT

CETESB CHRD CNDH CODESEDH

CONAGUA CONAMURI

Associação dos Homens do Mar (Seafarers’ Association) Asociación Interamericana para la Defensa del Ambiente (Interamerican Association for Environmental Defense) La Asamblea del Pueblo Guaraní de Itika Guasu (Assembly of the Guaraní People of Itika Guasu) Asociación de Campesinos de Buenos Aires (Peasants Association of Buenos Aires) Alien Tort Statute Baterías de El Salvador (El Salvador Batteries) Business and Human Rights Resource Center Compliance Advisor Ombudsman Centro de Diagnóstico y Alternativas para Afectados por Tóxicos (Diagnostic and Alternatives Center for People Affected by Toxins) Companhia Ambiental do Estado de São Paulo (Environmental Company of the State of São Paulo) Corporations and Human Rights Database Comisión Nacional de los Derechos Humanos (National Commission for Human Rights) Comité para la Defensa de la Salud, la Ética, y los Derechos Humanos (Committee for the Defense of Health, Ethics, and Human Rights) Comisión Nacional del Agua (National Water Commission) Organización de Mujeres Campesinas e Indígenas Conamuri (Organization of Peasant and Indigenous Women) xvii

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xviii

CONAPRED ECLAC EDLC ESG FENACO

FPIC FREDICON GDP IACHR IBAMA

IFC IGO ILO INCODER INGO KLD MARN MCP MINEM MPT MSI MST MTE NCP NGO OECD

List of Abbreviations

Consejo Nacional para Prevenir Discriminación (National Council to Prevent Discrimination) Economic Commission for Latin America and the Caribbean Environmental Defender Law Center ESG Environmental, Social, and Governance Federación de Comunidades Nativas del Río Corrientes (Federation of Native Communities of the Corrientes River) free, prior, and informed consent Frente de Defensa de los Intereses del Cono Norte (Front for Development and Integration of the North Cone) gross domestic product Inter-American Commission for Human Rights Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis (Brazilian Institute of Environment and Renewable Natural Resources) International Finance Corporation Institute on Governance International Labor Organization Instituto Colombiano de Desarrollo Rural (Colombian Institute of Rural Development) international non-governmental organization Kinder, Lydenberg, and Domini Ministerio de Ambiente y Recursos Naturales (Ministry of Environment and Natural Resources) Movimiento Campesino Paraguayo (Paraguayan Peasant Movement) El Ministro de Energía y Minas (Ministry of Energy and Mines) Ministério Público do Trabalho (Public Ministry of Labor) multi-stakeholder initiative Movimento dos Trabalhadores Rurais Sem Terra (Landless Workers’ Movement) Ministério do Trabalho e Empresas (Ministry of Labor and Business) National Contact Point non-governmental organization Organization for Economic Cooperation and Development

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List of Abbreviations

OEFA OEIWG OHCHR OSINERGMIN

PDPMM

PUINAMUDT SEAM SEC SERNA SINDPESCA-RJ

SITRAP SUNTRACS

TRC UN UNCTC UNDRIP UNGPs VPs

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Organismo de Evaluación y Fiscalización Ambiental (Agency for Environmental Assessment and Enforcement) Open-Ended Intergovernmental Working Group Office of the High Commissioner on Human Rights Organismo Supervisor de la Inversión en Energía y Mineria (Supervisory Agency for Investment in Energy and Mining) El Programa de Desarrollo y Paz del Magdalena Medio (Program for Development and Peace of the Magdalena Medio) Observatorio Petrolero de la Amazonía Norte (Petroleum Observatory of the Northern Amazon) Secretaría del Ambiente (Secretariat of the Environment) Securities and Exchange Commission La Secretaría de Recursos Naturales y Ambiente (Secretary for Natural Resources and the Environment) Sindicato dos Pescadores Profissionais e Pescadores Artesanais (Professional and Traditional Fishermen Trade Union of the State of Rio de Janeiro) Sindicato de Trabajadores de Plantaciones Agrícolas (Agricultural Plantations Workers Union) Sindicato Único Nacional de Trabajadores de la Industria de la Construcción y Similares (National Union of Construction Workers) South African Truth and Reconciliation Commission United Nations UN Commission on Transnational Corporations UN Declaration on the Rights of Indigenous Peoples UN Guiding Principles Voluntary Principles on Security and Human Rights

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1 Human Rights in the Corporate Context The Challenge of Accountability

Society may subsist, though not in the most comfortable state, without beneficence; but the prevalence of injustice must utterly destroy it. —Adam Smith (1759, p. 64)

It might be surprising that a book about business-related human rights abuses would begin with a quote from Adam Smith, the so-called “father of economics” or “father of capitalism.” Yet, capitalistic systems are rife with challenges for human wellbeing; Smith knew this. Even before he wrote his best-known The Wealth of Nations (1776), he had already published a book 17 years earlier titled The Theory of Moral Sentiments (1759). While others have explored his seemingly paradoxical texts,1 the quote above is an important admonition that the “father of capitalism” thought deeply about the ways in which (informal) rules of morality and (formal) rules of the market keep one’s self-interests in check and ensure individual rights are respected. Smith understood the fundamental idea that for a society to function, economic relationships need to foster individuals’ opportunity to thrive and that, without such, the public order may be at risk. Smith’s first book, like this one, is about how people engage with one another when individual rights come into conflict with economic activity. Both books underscore the importance of redress or justice for wrongdoing and, quite significantly, the great danger for our existing political and economic systems if we allow injustices to persist. Consistent with Smith’s observations, human exploitation is ubiquitous in our modern economy. This exploitation constitutes human rights abuses when it violates the standards that recognize and protect the basic freedoms and dignity that all humans are guaranteed by virtue of being human (e.g. physical integrity rights, political and civil rights, as well as economic, social, 1

See Otteson (2002); Roberts (2015).

1

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Seeking Justice

and cultural rights).2 Many people may think of human rights abuses as an unusual, worst-case scenario in business. Yet, individuals are regularly injured, trafficked, enslaved, forcibly displaced, or killed in the corporate context. Recent examples include enslavement of migrant workers across agricultural communities in Argentina; over 4,500 employees working in a sweatshop in Peru, some of whom were dismissed for trying to form a union; and forced displacement of communities by paramilitary forces in Colombia on behalf of a palm oil company. Claims such as these are widespread, suggesting that businesses abuse, neglect, or fail to protect the basic human rights of workers and communities. Such human rights abuses occur in a context of increasing interest in, and activism around, improving corporate human rights conduct. The challenge of improving corporate behavior is frequently summarized by scholars and policymakers as the need to close the “governance gap,” or the oft-cited idea that states are weak relative to large, multinational enterprises that span the globe. In response to this gap, there has been a marked rise in internationaland industry-specific voluntary initiatives, monitoring bodies, and global campaigns. Such efforts have attempted to redress human rights abuses and mitigate future occurrences by engaging states, firms, and civil society to address concerns about corporate misconduct. Initiatives include well-known multi-stakeholder efforts like the Extractive Industry Transparency Initiative or the Kimberley Process and newer efforts, such as the Equitable Food Initiative. In 2011, the United Nations (UN) Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights (UNGPs) to improve companies’ respect for human rights, including a framework for remedy provision, when human rights are not respected. A decade later, the UN Working Group on Business and Human Rights launched the “UNGPs 10+” project to assess what has been done and create a road map for the next decade of work on business and human rights.3 That human rights abuses can occur is well understood, but what happens – and to whom – is not well explained by existing perspectives. The governance gap does not explain the wide variation in victims’ access to remedy mechanisms, defined as judicial or non-judicial efforts that seek to redress corporate wrongdoing. From the examples above, Adecco Argentina and Manpower – the human resources companies in Argentina that provided staffing services for Monsanto contractors – denied enslaving migrant workers and stated that 2

3

A more detailed explanation as to how human rights are defined in this analysis is provided in Chapter 3. See OHCHR (2021b).

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Human Rights in the Corporate Context

3

they comply with “all applicable regulations relating to agricultural work” (La Voz 2011). A Monsanto spokesperson vowed the company has always “respected human rights” (Associated Press 2012). Even so, victims did not have access to remedy. On the other hand, in Peru, one of the world’s largest fashion retailers, Inditex (Industria de Diseño Textil, S.A.) engaged in negotiations with labor representatives, other buyers, and its supplier, Topy Toy, where employees endured sweatshop conditions. Inditex’s code of conduct requires suppliers to sanction worker exploitation and meet local and international labor laws (Just Style 2007). As such, Inditex led a negotiation in which all parties agreed to what labor representatives called a “historic agreement” that allowed employees to form a union and reinstated ninety-three employees who were wrongfully dismissed (CCOO 2007). And, in the final example, a Colombian court convicted five palm oil company employees in October 2014, and in June 2017 convicted a majority shareholder of the company, Antonio Nel Zuñiga-Caballero, for colluding with paramilitaries in the forcible displacement of Afro-Colombian communities (Ballvé 2009; El Espectador 2017).4 The focus of this book, thus, is to explore and understand the variation in access to remedy mechanisms for corporate human rights abuse. As I argue, the business and human rights literature, in general, needs to adopt a more victim-centered approach to better understand access to remedy mechanisms and the possibilities of improved democratic practices through claim-making. This book asks the following fundamental questions: Why do victims have access to remedy mechanisms in some instances and not others? More specifically, when corporations are confronted with allegations of past abuse, what characteristics of the contestation (e.g. who is involved and in what context?) explain governance outcomes (e.g. why do some victims have access to judicial or non-judicial remedy mechanisms while others do not)? And to what end does contestation about businesses’ respect for human rights have positive spillover effects for democratic practices in the long term?

4

Upon the initial 2014 ruling, the defendants appealed by arguing that they did not directly inflict harm on those who were forcibly displaced (e.g. they had no weapons and did not injure anyone). The court upheld the initial ruling and, what is more, the same tribunal revoked a lower court’s decision and convicted Zuñiga-Caballero, due to his direct links with the paramilitary, a member of which owned the company, Urapalma SA (El Espectador 2017). As described in Payne, Pereira, and Bernal-Bermúdez (2020), the innovation in this case was the broader interpretation of the crime of forced displacement to convict company employees and recognize the rights of internally displaced people to return to lands occupied by private actors (p. 261).

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Seeking Justice puts forward a novel argument: I develop the “varieties of remedy” approach, which explains when and why victims are likely to obtain access to remedy mechanisms for corporate human rights abuses. This approach explores how specific characteristics of non-violent contestation – who is involved and in which institutional context it occurs – shape the governance of corporate wrongdoing, or access to remedy mechanisms. Every day, victims around the world confront corporate actors for various ills and do so to seek remedy for those abuses. Some victims confront small- or medium-sized locally owned businesses while others confront large multinationals for their role in wrongdoing, including forced labor, environmental destruction, or death. Some victims confront corporate actors in countries with weak institutional frameworks and disregard for rule of law, while others bring these claims to light in countries with more robust institutions. Acts of claim-making are sometimes supported by local non-governmental organizations (NGOs) while other claims are broadcast by international non-governmental organizations (INGOs). Some victims gain access to judicial or non-judicial remedy mechanisms, but many victims are ignored or, worse, further victimized. What unifies all of them, however, is that they engage in non-violent contestation to gain access to remedial mechanisms for corporate wrongdoing. The arguments and analysis in this book seek to shed light as to when and why those efforts are more or less likely to work in democratic contexts. To begin, the book challenges the widely accepted governance gap narrative.5 The governance gap proves to be a useful heuristic to motivate action at the international level, as indicated by the creation of, and a groundswell of activism around, the UNGPs. Yet, it has numerous shortcomings. It overlooks the policies (e.g. neoliberalism) that prompted policymakers and human rights advocates to advocate for improved corporate respect for human rights. A somewhat myopic focus on the governance gap has also led policymakers, scholars, and human rights advocates to pay little heed to local efforts to obtain access to remedy mechanisms for victims. In short, the governance gap framing casts aside the complexity of the business and human rights space.

5

Scholars argue that rulers have incentives to maintain, or even weaken, state apparatuses for personal gain (Reno 1997), but this idea has yet to be developed in the context of the governance gap. Instead, the governance gap relates more closely to how state and society scholars depict a “weak state” or, quite simply, that states do not have the capacity to hold corporate actors to account. Though beyond the scope of the book, the arguments herein suggest that the governance gap framing, at best, ignores the paradoxical quality of the state (e.g. not a monolith) or, worse, deteriorates both the practice and image of the state (Migdal 2001), thereby exacerbating the issue at hand (see Olsen and Bernal-Bermúdez 2023 for a study of economic complicity, or state-sponsored abuses in the corporate context).

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The theoretical contribution developed here tells a new story. It draws together two streams of political theory – pragmatism and agonism – to make sense of the simultaneous, complicated, and dynamic nature of domestic-level efforts to provide access to remedy mechanisms for corporate human rights abuse. Pragmatism – distinct from its more common use (e.g. pragmatic action or, even, Ruggie’s (2006, 2010) “principled pragmatism”) – is an approach that allows for knowledge to evolve, rather than assume it is immutable, waiting to be discovered. My use of pragmatism is ontological (the origins of our knowledge about the world) and not epistemological (the ways in which we know about the world), though the latter is making a resurgence in international relations scholarship.6 Pragmatism-as-ontology avoids the dualisms and parsimony that define much of the political science scholarship (see Pratt 2016 for a thorough review). Pragmatism is not precise, by design, in that it embraces “complexity, intersubjectivity, and contingency in social relations” (Gould and Onuf 2009, p. 27). This approach upends the way mainstream analyses have, thus far, understood the governance gap and access to remedy. Pragmatism leaves open the possibility that while there may be similarities in corporate human rights violations, local contingencies make a parsimonious theory in this domain unlikely. In other words, we learn the value of stepping away from the false dichotomy of “gap or no gap” and begin to investigate the multiple, sometimes circuitous, ways in which victims may access remedy mechanisms, while also discovering that new claims continue to emerge. The second stream of political philosophy upon which I draw is agonism. Agonism is a philosophical orientation that stresses the central role of contestation in democratic contexts and underscores that contestation can be productive, leading to greater institutional legitimacy. This literature challenges traditional notions of consensus through deliberation and, instead, integrates confrontation into an understanding of institutional change and democratic endurance. Taken together, pragmatism as an ontology encourages the reader to consider an alternative approach to much of the mainstream BHR literature, by questioning the parsimony of the governance gap narrative and considering the complexity of the business and human rights landscape. Meanwhile, agonism encourages the reader to consider the potentially productive role of non-violent contestation. This theoretical framework is a key contribution of this book, as the governance gap narrative risks prioritizing parsimony over precision – even

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See Bauer and Brighi 2002; Sil and Katzenstein 2010.

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when the latter reveals multiple, possibly circuitous or synonymous pathways. These literatures are discussed at length in the next chapter. This foundation sets the stage for the book’s second contribution, which is the development of the varieties of remedy approach. The name of this approach is a play on – and, quite possibly, a needed complement to – Hall and Soskice’s (2001) Varieties of Capitalism, in which the authors compare how variation in actors’ engagement shapes national economies. Alternatively, this book compares how actors’ engagement and the institutional context shapes access to varieties of remedy for some of the more serious ills of capitalism (e.g. corporate human rights abuse). While Hall and Soskice (2001) illustrate how institutional infrastructure facilitates a nation’s comparative advantage, the elaboration of the “varieties of remedy” approach improves our understanding as to how the characteristics of contestation (e.g. claimmaking) shape governance outcomes (e.g. access to judicial or non-judicial remedy efforts).7 Thus, by building on research in political science, management, and human rights, the varieties of remedy approach develops three potential pathways to remedy efforts: Institutional Strength, Corporate Characteristics, and Elevating Voices. These pathways, described later, challenge assumptions associated with the governance gap. They also contribute to related sets of scholarship that seek to address corporate human rights abuse, but only apply what we know about states’ respect for human rights to the corporate context (Risse, Ropp, and Sikkink 2013; Bauer 2011), or consider the legal responsibility firms might face for human rights abuses (Martin and Bravo 2016; Karp 2014; Bird, Cahoy, and Prenkert 2014; Deva and Bilchitz 2013; Gatto 2011). Instead, this book takes a victim-centered approach through which “remediation turns into one of the most important, if not the most important element, of corporate responsibility because it addresses the plight of those who have already suffered harm” (Schrempf-Stirling, Van Buren, and Wettstein 2022 pp. 26–27). To answer the questions posed here I utilize unique, newly collected data, the Corporations and Human Rights Database (CHRD), which is the third

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Chapter 2 includes an in-depth discussion of governance, which is defined as “the traditions, institutions and processes that determine how power is exercised, how citizens are given a voice, and how decisions are made on issues of public concern” drawn from the Institute on Governance (IOG). Other scholars’ research corroborates this definition (Amin and Hausner 1997; Avant, Finnemore, and Sell 2010; Newman 2001; Pierre 2000), which departs from the traditional notion of bureaucratic administration, previously used in governance research.

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contribution of this research.8 My team and I created the CHRD, which includes over 1,300 allegations of corporate human rights abuse across Latin America from 2000 to 2014.9 Importantly, the dataset includes a broad range of corporate human rights abuse: physical integrity (i.e. murder, disappearance, illegal detention, torture); development (i.e. exploitation of land, license to operate); environment (i.e. water, air, land contamination); health (i.e. health consequences of corporate activity); and labor (i.e. child labor, substandard working conditions). The empirical chapters systematically and longitudinally explore allegations of corporate human rights violations in the modern era, which is a relatively understudied phenomenon (Payne, Pereira, and BernalBermúdez 2020; Wright 2008). The data facilitate new learning about victims’ access to remedy, which is of great import and interest to practitioners and scholars.10 For example, in 2014 the UN launched an Access to Remedy Project which is aimed at “continuing the work to facilitate the sharing and exploration of the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses” (United Nations OHCHR 2014). And yet, existing business and human rights scholarship tends to focus on single firms (Reygadas 2003; Taylor 2004; Wheeler, Fabig, and Boele 2002), particular countries (Hamann et al. 2009; Chesterman 2008; Santoro 2000), and small-N comparisons of firms or business sectors (Chandler 1998; Drimmer 2010; Handelsman 2003; Woolfson and Beck 2003). Anecdotal evidence alone can result in uninformed decisions or policy.11 The CHRD avoids that pitfall. 8

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In this book “corporation” is used interchangeably with “business,” “firm,” or “company,” and defined as the group of individuals who legally engage in commerce with the goal of making a profit. Note that the data used in this book are a subsample of the data included in the CHRD, which covers all countries in the world between 2006 and 2018. I am grateful to the University of Denver for initial seed grants for this project and, ultimately, the National Science Foundation (Award ID #1921229) for making the data collection possible. This analysis, however, began with the pilot project of the CHRD, which focused on Latin America. Thus, this book analyzes those countries that transitioned to democracy since the so-called “third wave” of democratic transitions or were already democratic: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, and Uruguay. Microstates (those with a population under one million) were omitted from this analysis because consistent information from other data sources was unavailable. See, for example, the OHCHR’s recent work on access to remedy: “Accountability and Remedy Project: Improving accountability and access to remedy in cases of business involvement in human rights abuses.” www.ohchr.org/EN/Issues/Business/Pages/ OHCHRaccountabilityandremedyproject.aspx Note that this book does not address whether such mechanisms make the victim whole. Though that line of inquiry would be a valued and welcomed contribution to the literature, this book helps us understand when victims have access to such remedy mechanisms – a

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Seeking Justice unlike many books about political economy, business ethics, or business and human rights, narrows in on the act of contestation, whereby actors express an alternative vision to the status quo or articulate a social criticism about the conduct of others to seek remedial mechanisms for, in this case, corporate wrongdoing. Contestation is a fruitful focus because it is the source of both interesting variation and important pathways to remedy. Institutional scholars, for example, might focus on the rules or norms (structure) to determine whether they facilitate access to remedy. Those studying collective action or contentious politics (agency) might focus only on the people who bring these claims to bear. Neither approach would be satisfactory here because, as I argue, greater respect for human rights in the corporate context is not only about structure or agency, but something much more complex. A focus on contestation, however, accomplishes two things: first, it facilitates a deeper look at who participates and in what context; it allows us to build a more robust understanding as to when it is more or less likely to shape governance outcomes while recognizing the multiple ways in which this may occur. Second, contestation brings into focus the foundational and fundamental need to recognize the irresoluteness and continuity of discord. The perennial nature of contestation has consequences not only for communities living in the sphere of influence of corporations but also for the longevity and health of our political and economic systems, generally. In summary, this book provides a novel theoretical framework with which to understand the relationship between contestation and governance in the business and human rights arena. Below, I situate the book by outlining the business and human rights agenda and current policy discussions in this arena. Next, I introduce the varieties of remedy approach, which is empirically examined throughout the book, to develop a multilevel perspective that identifies three key pathways to judicial and non-judicial remedy mechanisms. Contrary to narratives about the governance gap, this book uncovers how contestation-level dynamics create pathways to governance outcomes – institutional strength, corporate characteristics, and elevating voices. Using unique data to test hypotheses in the literature, this book presents new findings and provides the first systematic study of access to remedy in the contemporary business and human rights context. The overall framing supports an exploration of how local forces of contestation shape access to remedy, whether provided by states or corporations, and what that foundational and necessary step to subsequently understand whether remedy addresses the harms and satisfies victims’ needs. In other words, this project lays the foundation for future work assessing the quality and effectiveness of such remedy mechanisms.

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might mean for enhancing the future protection of the most vulnerable in our global economy. Finally, I provide an overview of the book and end with a brief discussion of the broader implications of the varieties of remedy approach.

the business and human rights agenda Historically, most human rights research has been concerned with states’ respect for human rights in post-transition or post-conflict settings. Today’s human rights regime began in the post-WWII era with the adoption of the Bill of Human Rights in 1948 and codification of such norms through international or regional accountability bodies. Around the globe, the wrongdoing of past state-sponsored human rights abuses has been recognized and, at times, those individuals have been held to account (Finnemore and Sikkink 2001; Olsen, Payne, and Reiter 2010). While a new norm for state respect for human rights has been established, respect for human rights in the corporate context continues to evolve. Today, an increased focus on business actors as perpetrators of human rights abuse has been driven by multiple factors. First, multinational enterprises have more power and influence today than ever before. Some companies’ assets are larger than the GDP of the countries in which they work. For example, General Motors produces more revenue ($135 billion) than the GDP of Hungary ($129 billion) where GM opened a plant in 1991. Were Walmart a country, its revenues would have made it the 10th largest GDP globally in 2016 (World Economic Forum 2016). A study by Global Justice, a UK-based non-profit organization, found that the world’s top ten corporations have a combined revenue of more than the combined 180 “poorest” countries in the world, which include Ireland, Indonesia, Israel, Colombia, Greece, South Africa, and others (Global Justice 2016).12

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Those outside of the firm often assume economic power leads to political power; indeed, some of the corporate political activity literature confirms this intuition (on bargaining see Schuler, Rehbein, and Cramer 2002; Schuler 1996; on lobbying see Drope and Hansen 2006; Hillman et al. 2004; Schuler and Rehbein 1997). Even so, I find this view in stark contrast with the firmperspective as depicted in the strategy literature, where firms operate in a highly competitive environment in which risks lurk around every corner (see discussion in Chapter 4). Again, in the spirit of a pragmatic approach, it turns out both are true – as we will see in Chapters 4 and 5, some corporate characteristics are correlated with impunity while other characteristics, from the corporate perspective, make them at greater risk for accountability. Uncovering this nuance is essential to improving victims’ access to remedy.

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A second and related point is that many external stakeholders – consumers, civil society organizations, and policymakers – expect improved corporate behavior in general, and seek to apply human rights norms to the corporate context, more specifically. For example, in the United States, Soule (2009) documents that citizens increasingly aim to elicit change from corporations by pressuring them directly. Scholars have documented how repeated confrontations by civil society through boycotts or protests make firms more receptive to such challenges and improve corporate conduct (McDonnell, King, and Soule 2015). Policymakers have also played an important role in creating “soft law” or voluntary mechanisms, such as the Extractive Industry Transparency Initiative, among others (Knudsen and Moon 2017). More recent efforts include more detailed reporting requirements or direct regulation. For example, the United States Congress passed the Dodd-Frank Act in 2014, which included provision 1502, requiring firms to disclose whether they procure minerals from the Democratic Republic of the Congo.13 In addition, the UK’s Modern Slavery Act of 2015 strengthened and reformed existing laws about human trafficking and modern slavery to reduce occurrence and to prosecute those involved.14 In 2017, France adopted a law on the corporate duty of vigilance which requires large French companies to publish an annual “vigilance plan” that is meant to both identify risks and prevent severe human rights and environmental impacts due to company operations. In 2021, the Netherlands adopted legislation to combat child labor in Dutch companies’ supply chains. In the same year, Germany adopted the Act on Corporate Due Diligence Obligations in Supply Chains, which requires companies to systematically identify and address human rights and environmental risks in their own business operations and in those of their first-tier suppliers.15 In 2022, the Norwegian Transparency Act took their legislation a

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In 2017, the United States’ Securities and Exchange Commission stated it would suspend enforcement of the due diligence and audit requirements of 1502. Even so, companies are still required to file disclosures about the source of materials in their products. Perhaps more concerning, however, is recent research questioning the effectiveness of this supply chain transparency effort (Stoop, Verpoorten, and van der Windt 2018). Some observers have expressed frustration with the slow progress of the UK Modern Slavery Act, which was passed in 2015. An NGO, After Exploitation, shows that only one-third of modern slavery victims were referred through the National Referral Mechanism (Bulman 2022). Moreover, non-profit and political leaders are concerned that the Nationality and Borders Bill, passed in 2022, will further limit victims’ access to support. Scholarly research highlights the slow progression, as well (see Mantouvalou 2018). Importantly, the legislation includes clauses for special litigation and outlines that firms may be fined up to 2 percent of their average annual turnover if they do not take remedial action or implement an appropriate remedial action if a violation is found within their direct supplier.

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step further than other countries have by requiring companies to account for the human rights and labor practices of direct suppliers, as well as those vendors or subcontractors who make up the entire supply chain. It is limited in some respects, though. While citizens “will be entitled to request information from companies, and the Norwegian consumer authority may issue injunctions and fines for non-compliance. . .victims of human rights abuses will regrettably still not have the right to seek remedy in court” (ECCJ 2021). On the heels of this upward trend in domestic legislation, the European Commission proposed mandatory due diligence legislation in February 2022 (Abnett and Strupczewski 2022).16 If adopted this law would oblige approximately 13,000 European Union (EU) firms and 4,000 non-EU firms to assess their supply chains for environmental and human rights risks and mitigate them when and if they do occur (Bruneau et al. 2022).17 As a result of increased pressure and legal obligations, businesses are beginning to understand the importance of human rights. Many scholars argue that when firms engage directly or indirectly in human rights violations, the firms put their own future at risk. The costs of malfeasance may involve reputational or operational risks, costs associated with legal liability, and possibly loss of consumer or investor confidence (Bernstein 2008). Many observers followed a series of cases against Royal Dutch Shell in Nigeria and the United States for the hanging of Ken Saro-Wiwa and eight other activists who protested the company’s environmental pollution in the Niger Delta. Ultimately, the company settled out of court fourteen years later (Pilkington 2009), though Esther Kiobel and three other women whose husbands were killed in 1995 are still seeking justice (Amnesty International 2022).18 And,

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McCorquodale and Nolan (2021) provide a comprehensive discussion about human rights due diligence, how it has been applied to date, and its relevance for various areas of law. Many other examples exist that are indirectly related to business and human rights. Since 1996, Belgian TNCs and Belgian subsidiaries of foreign companies have been required to report on their social performance in their annual accounts. As of 2001, Australia required corporations listed in the Australian stock exchange and other investment firms to complete an annual corporate social responsibility report. And, also as of 2001, nationally listed French companies are required to submit a corporate sustainability report, which should include information on “how they will ensure that subcontractors and subsidiaries comply with ILO’s core conventions” (Abrahams 2004: 35). In Argentina, Law 2594 of the City of Buenos Aires requires companies with over 300 employees to report on their social and environmental performance (Legislatura de la Ciudad Autónoma de Buenos Aires 2007). While the widows of the Nigerian activists are still seeking justice for the murder of their spouses (Amnesty International 2022), Shell has been found responsible for oil spills in the region. In 2021 the Hague Court of Appeal found the Shell Petroleum Development Company of Nigeria responsible for oil spills and resulting harm. The Court also found the company violated its duty of care regarding operations overseas; this is the first time a Dutch court has

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twenty-six years after the Bhopal disaster, in 2010, Indian courts found seven executives of Union Carbide India Limited guilty of criminal negligence (Press 2010). Cases brought to courts in the United States against the parent company, Union Carbide Corporation, however, were dismissed (Lakshman 2016). More recently, in January 2019, Vale’s stock price plummeted after news of a catastrophic tailings dam collapse in Minas Gerais, Brazil, which killed 270 people. The company lost nearly $19 billion or a quarter of its market value and, in February 2020, Brazilian state prosecutors charged the former CEO, Fabio Schvartsman, and fifteen others involved in the collapse with homicide (Nogueira 2019; Pulice 2022). In April 2022, the United States’ Securities and Exchange Commission sued Vale for fraudulently misleading investors, governments, and communities about the safety of its dams in Southern Brazil. Together, these trends have created a space in which human rights norms are increasingly applied to business. The following section offers a broader historical context for business and human rights. It provides a primer as to how today’s business and human rights agenda was developed and what this trajectory tells us about the potential challenges and opportunities for victims’ access to remedy mechanisms.

The Promotion of Voluntary Mechanisms and the Challenges of Hard Law Since the early 1970s, worldwide initiatives have attempted to curb corporate human rights abuses. In 1974, the UN established the Commission on Transnational Corporations (UNCTC). The UNCTC created a code of conduct that, while not explicitly about human rights, sought to outline best practices with regard to international trade, treatment of foreign enterprises, and dispute settlement efforts. The UNCTC only produced a series of drafts and was discontinued in 1992. Other initiatives during the 1970s were also voluntary in nature. In 1976, the Organization for Economic Co-operation and Development (OECD) issued Guidelines for Multinational Enterprises. A year later, in 1977, the International Labor Organization published the Tripartite Declaration of Principles Concerning Multinational Enterprises. The Sullivan Principles, which are codes of conduct that were widely adopted by U.S.-based corporations to put economic pressure, on South Africa to end held a parent company based in the Netherlands accountable for wrongdoing abroad. Observers note that this opens the door for more corporate accountability cases in Dutch courts; a lawyer for Friends of the Earth Nigeria, Chima Williams, stated, “Now the oil companies will know they cannot continue to act with impunity. And that a day will come when they will be held accountable for their misdeeds” (Peltier and Moses 2021).

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its apartheid, and the Foreign Corrupt Practices Act in the United States – also adopted in 1977 – were also part of the effort to change the norms and standards for global business. While the UNCTC and the Sullivan Principles were considered important catalysts in ending the apartheid regime of South Africa, overall these initiatives failed to create widely agreed-upon sets of standards that would transform expectations and business practices (Sagafi-nejad and Dunning 2008, p. 118). By the late 1990s and early 2000s, efforts to promote both hard law (e.g. international regulatory frameworks) and soft law (e.g. voluntary actions) were underway. In the 1990s, the UN gathered a group of five independent experts to draft a code of conduct for transnational corporations, which became the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (hereafter the “Draft Norms”). The Draft Norms set out human rights standards for companies and drew heavily from existing international law in civil, political, economic, social, and cultural rights that addressed issues from labor concerns to environmental issues to consumer protection. The breadth of the Draft Norms, however, was met with both trepidation and strong opposition by businesses and governments, alike. The main point of controversy was that the Draft Norms placed direct, legal responsibility on corporations as “organs of society,” a term that is employed in the Universal Declaration of Human Rights. The Draft Norms also included implementation mechanisms (monitoring, reporting, and verification) and stipulated obligations of corporate financial redress for wrongdoing. Pushback came from the private and public sectors. Businesses, in general, opposed binding regulation on corporate conduct, including international law. The International Chamber of Commerce and the International Organization of Employers actively lobbied against the Draft Norms (Mantilla 2009, p. 288). State leaders in some developing countries questioned their capacity to enforce such a regulatory framework. Others suggested that the political will to do so would be weak; many developing country leaders would struggle to hold companies accountable for wrongdoing given the state’s reliance on companies for much-needed economic growth and investment. Developed states were hesitant to sign on to hard law mechanisms that would challenge state sovereignty through extraterritoriality procedures. And, one might imagine, state leaders in more developed states would have been likely to face significant pushback to enforcement, as well. And so, in April 2004, amidst this political backlash, the UN Commission on Human Rights set the Draft Norms aside, declaring they “had not been requested by the commission and thus, would not be considered” (Mantilla 2009, p. 286).

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Meanwhile, voluntary initiatives and multi-stakeholder initiatives (MSIs) proliferated.19 In 2000, UN Secretary-General, Kofi Annan launched the Global Compact, a voluntary mechanism to facilitate discussions and best practices for corporations. The Global Compact promotes “shared values and principles” for state and non-state actors alike and represents one of the first efforts to encourage non-state actors to explicitly commit to respecting human rights. To date, the Global Compact has 16,537 members, of which 6,214 are companies (UN Global Compact). Industry-specific initiatives have also become popular. In 2000, the Voluntary Principles on Security and Human Rights (VPs) were published, providing guidelines to assess risk associated with employing or dealing with private and public security forces. The VPs were signed by governments, key international NGOs, and more than fifteen large multinationals working primarily in the extractive industry. The Extractive Industry Transparency Initiative, established in 2003, facilitates greater openness between member companies and states with regard to revenues generated from large-scale extractive projects. In an effort to reduce corruption and bribery, states and companies agree to publicly disclose payments associated with large-scale extraction projects. The Kimberley Certification Scheme, established the same year, is another industry-specific initiative established to reduce the flow of illicit diamonds fueling conflicts in Sierra Leone, Angola, and the Democratic Republic of the Congo, among other countries.20 Nonetheless, voluntary initiatives have fallen short. A 2020 report by MSI Integrity, a watchdog organization for multi-stakeholder initiatives, does not mince words: “MSIs are not effective tools for holding corporations accountable for abuses, protecting rights holders against human rights violations, or providing survivors and victims with access to remedy” (p. 4). This summary highlights the long history of voluntary efforts associated with improving corporate conduct – and why many are left wanting more. This discussion also illustrates the challenges that arise when seeking to create binding international law to hold firms accountable for violating human

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Kirkebø and Langford (2018) document nearly 100 different standards that have been adopted since 1976 in the business and human rights context; they find that voluntary initatives have changed over time and find a modest increase in commitments to more substantive standards over time. See also Erika George’s (2021) book, which argues for a more holistic approach to improving corporate respect for human rights in which she sees greater potential, as well, for “soft” law. Numerous MSIs exist, over forty of which are catalogued in a database created by MSI Integrity and the Duke Human Rights Center at the Kenan Institute for Ethics, see: https://msi-database .org/

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rights and informs the subsequent formation of business and human rights policy.

Business and Human Rights Today When the Draft Norms were discarded amid the lack of support from key state and corporate actors in 2004, many within the UN were concerned that the business and human rights agenda might be abandoned completely. Kofi Annan appointed Harvard Professor John Ruggie as the Secretary-General’s Special Representative for Business and Human Rights to revive the discussion. Ruggie, who also spearheaded the Global Compact, consulted with businesses, states, and civil society organizations to try to formulate a set of standards and principles that outlined all actors’ responsibilities to ensure greater respect for human rights in the corporate context. In June 2011, Ruggie’s work culminated in the UN Human Rights Council’s unanimous endorsement of the UN Guiding Principles on Business and Human Rights. The UNGPs – the principal document for today’s business and human rights agenda – outlines principles that describe the role and responsibilities of business, the state, and civil society in aiming to reduce human rights violations by corporate actors and to improve access to remedy for victims of such abuse. The three pillars of the UNGPs are: 1) the state duty to protect human rights; 2) the corporate responsibility to respect human rights; and 3) access to remedy mechanisms for victims of business-related abuse (UNGPs 2011). While many celebrated the passage of the UNGPs, others expressed concern.21 The UNGPs, for example, have been described as the “lowest common denominator” (Blitt 2012). Others note that without formal accountability mechanisms, the UNGPs will not be effective in creating a significant improvement in corporations’ respect for human rights and redress when abuses do occur. One scholar writes that “the Guiding Principles provide no sanction whatsoever for companies that fail to fulfill their responsibility for tracking and reporting adverse human rights impacts in their business activities” (Footer 2015, p. 52). Some argue the UNGPs are a step backward. Prior to assuming a position on the UN Working Group on Business and Human Rights, Surya Deva wrote that the UNGPs have been viewed as having “the

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To be clear, in his final presentation to the Human Rights Council, Ruggie (2011a) noted that the Council’s endorsement of the UNGPs was only the beginning of a much longer process, thereby explicitly recognizing that much more work was left to be done to implement and build upon all three pillars.

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effect of rolling back the legal concretization of corporate human rights obligations” (2013, p. 80). As of this writing, a new set of actors are seeking to create an internationally binding treaty on business and human rights.22 Though early in the process, many of the same challenges the Draft Norms faced in the 1990s are reemerging today in response to recent treaty efforts. While voluntary mechanisms continue to proliferate, hard law remains a quandary due to entrenched interests among other issues, making international, legal accountability efforts challenging to implement. As the Business and Human Rights Resource Center reported, 2020 UN treaty negotiations saw increasing polarization between states regarding specific provisions like mandatory due diligence, protection of migrant workers, as well as access to justice (BHRRC 2020). As shown in this brief summary of the various attempts to shape business conduct, only moderate success has been achieved, if that. This is, perhaps, because of the disconnect between global conversations and local action. Rodríguez-Garavito (2017) aptly makes this point: The dominant debates at the UN level – such as those on the implementation of the UN Guiding Principles on Business and Human Rights and the future of the ongoing discussion within the intergovernmental working group tasked by the UN Council with developing a treaty on BHR – do feel oftentimes a world away from litigation, campaigning or fieldwork on human rights violations stemming from corporate practices. . . (p. 2)

Beyond the UNGPs, most of the global governance initiatives are centered around “do no harm,” rather than redressing past abuses or ensuring victims have access to remedy mechanisms, which is the focus of this study. The UNGPs stand out in this sense by including access to remedy. Prior to her appointment to the UN Working Group on Business and Human Rights, Anita Ramasastry wrote that corporate responsibility is “a core obligation of companies to respect human rights wherever they operate, to do no harm and when harm is caused to provide a meaningful remedy to victims” (2015,

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In 2014, the UN Human Rights Council adopted a resolution by Ecuador and South Africa to create an open-ended intergovernmental working group (IGWG) on Transnational Corporations and Other Business Enterprises with respect to human rights. The group’s mandate is to elaborate an international legally binding instrument for such organizations and, as of October 2022 (OHCHR 2022), the third revised draft was still being discussed by the IGWG. While the third draft has made some marked improvements, the European Union, United States, China, Japan, Israel, and the United Kingdom are participating in ways they have not before. At the time of this writing, it is too soon to tell what their participation will mean for the treaty’s fate.

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p. 240). Even so, some lament that the third pillar – access to remedy – is the “forgotten pillar” (McGrath 2015). Schrempf-Stirling, Van Buren, and Wettstein (2020, p. 26) call remediation a “blind spot” while the title of an OECD Watch report pithily summarizes their findings about redress: “Remedy is Rare” (Remedy Remains Rare 2015). Despite numerous efforts to improve corporate respect for human rights, we know very little about why some victims have access to remedy mechanisms while others do not. This book seeks to fill this void by uncovering three pathways to remedy mechanisms, as described below.

introducing the varieties of remedy approach The next chapter lays out the theoretical foundation of this book and how it engages the literature in depth. Here, I provide a brief introduction to the varieties of remedy approach, which draws from pragmatism and agonism. Pragmatism allows us to accept the complexity and simultaneity of multiple pathways to remedy mechanisms, while agonism brings into focus the perpetually contested nature of business and human rights. Pragmatism is making a resurgence in political science scholarship, as it helps make sense of complex, multifaceted, dynamic areas of inquiry, like this one. First, pragmatism recognizes that social transformation is a fluid process that involves the ongoing interaction of actors and their environment. A focus on action can incorporate local actors – victims, their advocates, and businesses – more meaningfully than the governance gap narrative does. Second, pragmatism recognizes the multiplicity, and possible simultaneity, of pathways to remedy efforts. Finally, pragmatism allows for moments of equilibrium; however, it recognizes that outcomes may be suboptimal and that new solutions may emerge. In sum, this perspective facilitates an analysis of local actors’ interactions with one another with a focus on action (e.g. reflexive innovation), a multiplicity of pathways, and suboptimal equilibria (Dewey 1927). However, scholarship on pragmatism provides only a tacit role for confrontation, despite its central observation that actors continually shape one another. Pragmatism does not have a full-fledged account of how contestation occurs. To address this gap, I draw on agonism, which is a philosophical orientation that stresses the irreducibly contested nature of democracy (Honig 2007; Mouffe 2013). In contrast with Habermasian notions of deliberative democracy, which assume consensus will be achieved through deliberative processes, agonism recognizes “the multiplicity of voices that a pluralist society encompasses, and the complexity of the power structure that such a

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network might imply” (Mouffe 2013, p. 757). Agonism recognizes the perpetual contest of democracy and – importantly – theorizes about the affirmative dimension of that contestation. Agonism scholars note that who participates in confrontation is also political. “Agon thus does not occur between co-citizens but between first- and second-class citizens, between those whom are included and those excluded” (Schaap 2009). In this sense, agonistic thought makes explicit the power and inequality of democratic politics so as “to bring them to the fore, to make them visible so that they can enter the terrain of contestation” (Schaap 2006). Adopting an agonistic lens shifts our attention toward democratic or institutionalized pathways for confrontation (e.g. access to non-judicial or judicial remedy mechanisms). Agonism is pertinent to the inquiry at hand, as it focuses on who participates and, importantly, how such contestation can improve the legitimacy of democratic institutions and associated practices. Agonism recognizes the multiplicity of voices and the complexities of power differentials. Honig (1993, p. 15) writes that to “affirm the perpetuity of the contest is not to celebrate a world without points of stabilization; it is to affirm the reality of perpetual contest, even within an ordered setting, and to identify the affirmative dimension of contestation.” In sum, instead of lamenting the inherent tensions and perceived instability of contestation, agonism suggests that institutions that flourish will be those that manage to absorb contestation in a productive manner. Bringing these literatures into discussion provides the foundation for framing questions about business and human rights in terms of contestation and governance. In other words, how does the context (institutional strength), the characteristics of those making the claim (victims or those advocating on their behalf ), and to whom such a claim is made (large/small, foreign/domestic firms, profitable/unprofitable) shape access to remedy efforts? In the case of business and human rights, an agonistic perspective can still promote access to remedy for human rights abuses, but it pushes against the strong desire to “find” the right balance between states and markets or to identify a specific model adopted through consensus. Instead, the varieties of remedy approach requires an understanding of how contestation can be constructively incorporated into democratic, non-violent processes. The task, then, “is not to eliminate passions nor to relegate them to the private sphere in order to render rational consensus possible, but to mobilize those passions toward the promotion of democratic designs. Far from jeopardizing democracy, agonistic confrontation is in fact [democracy’s] very condition of

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figure 1.1. Schema of the varieties of remedy approach

existence” (Mouffe 1999, pp. 755–756). In other words, the ultimate test is whether a democracy can absorb contestation.23 I build on this call by exploring three specific pathways to remedy. The pathways, described in brief here – Institutional Strength, Corporate Characteristics, and Elevating Voices – represent efforts to address contestation in the business and human rights context (see Figure 1.1). Institutional Strength: Shaping Incentives to Engage in Remedy Efforts. The first pathway explores agonism’s observation that institutional capacity to absorb contestation is critical to the longevity of democratic regimes. Scholarship on democratic transitions in Latin America highlights the fundamental role that rule of law plays in shaping democratic consolidation and respect for human rights, generally. Strong legal structures play dual roles; they can serve as a deterrent and can also serve to identify clear standards and norms about remedy for human rights abuses, including issues such as labor violations or lack of consultation with local communities. Subsequent chapters illustrate that strong rule of law correlates with access to judicial remedy mechanisms while victims are more likely to have access to state-led nonjudicial remedy mechanisms in contexts with weak rule of law. Respect for rule of law, however, has no effect on corporate-led non-judicial remedy efforts. 23

Note that issues associated with corporate human rights abuse and access to remedy are likely more acute in non-democracies. This is a crucial aspect to explore, but is beyond the scope of this study, which focuses on access to remedy mechanisms in varying levels of democratic contexts.

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Corporate Characteristics: Accountability Efforts Despite Corporate Power. The second pathway assesses the characteristics of who engages in the contestation and focuses on the resources and capacity of firms. The governance gap narrative generally assumes that firms are likely to enjoy impunity, yet the data provide a more nuanced story. While profits protect foreign firms from judicial accountability, high profit margins are associated with more accountability efforts for domestic firms. Moreover, foreign firms do not always enjoy impunity; large foreign firms are more likely to face criminal charges than their smaller counterparts. The pathway to non-judicial remedy is more likely for victims of firms that are large, profitable, or have a previous record of human rights abuse. The characteristics of the firm engaged in contestation shape access to remedy mechanisms in ways unanticipated by the existing literature. Elevating Voices: Remedy through Reflexive Innovation. The third pathway centers on the role civil society can play in facilitating access to remedy mechanisms by using their local expertise, practicing reflexive innovation, and amplifying victims’ voices. In particular, the business and human rights literature assumes a productive role for NGOs and INGOs in shaping access to remedy for victims of business-related human rights abuse. Such actors seek to augment victims’ voices that might otherwise be excluded, as agonistic scholars suggest. The varieties of remedy approach highlights local knowledge and local action; when victims have the support of domestic NGOs, they are more likely to access judicial processes. With NGO support, victims are more likely to access non-judicial remedy mechanisms when the firm has a history of abuse. However, INGOs are negatively associated with access to judicial remedy and have no effect on access to non-judicial remedy mechanisms. This finding relates back to the important role local actors play in agonistic contestation and in shaping victims’ access to remedy mechanisms. Structure of the Book The remainder of the book is organized as follows. In Chapter 2, I take a deeper dive into the literatures on pragmatism and agonism to illustrate how, when combined, they provide the intellectual framing and underpinnings of the varieties of remedy approach. While pragmatism highlights the need to analyze the dynamics between local actors, their advocates, and the firms involved in the abuse, agonism asserts that non-violent contestation and confrontation could have a potentially positive role. With this foundation, I develop the varieties of remedy approach, exploring how contestation

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(e.g. claim-making) shapes governance outcomes (e.g. access to judicial or non-judicial remedy mechanisms). Three pathways are discussed in greater depth in Chapter 2 – Institutional Strength, Corporate Characteristics, and Elevating Voices – and tested empirically in subsequent chapters. In Chapter 3, I present the CHRD by exploring patterns and trends with descriptive data to illustrate the variation in access to remedy. The CHRD includes over 1,300 allegations of corporate human rights abuse between 2000 and 2014. Chapter 3 explains how my team and I created the CHRD, which is the first systematic database on contemporary corporate human rights abuses and access to remedy. This chapter discusses the data collection process and includes descriptive statistics on key details about the claim, corporate responses, and associated judicial and non-judicial remedy efforts included in the database. Chapter 3 will familiarize the reader with the data, discuss verification processes, and provide a basic landscape of how the CHRD informs business and human rights in democratic countries across Latin America. Chapter 4 provides the first empirical assessment of the pathways developed earlier in the book. It focuses on access to judicial remedy mechanisms, defined as any processes initiated in the court of law. In it, I ask: how does confrontation shape governance outcomes in terms of access to legal remedy efforts? I draw from political science and legal scholarship on the logic of deterrence to illustrate how Institutional Strength represents an important pathway to judicial remedy mechanisms. I develop the Corporate Characteristics pathway by engaging with political economy and management scholarship to explain the ways in which firm-level characteristics associated with resources and capacity (e.g. foreignness, profitability, and size) explain variation in access to judicial remedy. Finally, this chapter explores the Elevating Voices pathway by drawing from the human rights scholarship, which illustrates how civil society support (e.g. NGO or INGO involvement) can amplify claims and shape governance outcomes. Using case studies from the CHRD, this chapter also provides rich illustrations of victims’ access to judicial remedy mechanisms. Chapter 5 presents the same pathways but draws on different scholarship, as non-judicial remedy mechanisms represent a much broader set of administrative or mediation-based activities that can be initiated by state or non-state actors. This chapter explores the Institutional Strength pathway by assessing how the rule of law influences access to non-judicial remedy. To inform the mechanisms that drive the Corporate Characteristics pathways, this chapter draws from slack resource theory, which suggests that when firms have extra resources to do good deeds, they will do so. Other scholars explore how firm size can also shape firm involvement in such activities; larger firms are more vulnerable to civil society pressure and, thus, may be more likely to

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engage in non-judicial remedy mechanisms as a result. Finally, I further develop the Elevating Voices pathway by exploring the contentious politics literature, which theorizes on the importance of local actors pressuring state or corporate actors to incite change. Detailed vignettes provide concrete illustrations of victims’ efforts to access non-judicial remedy mechanisms. Engaging directly with agonistic thought, Chapter 6 asks whether contestation about corporate human rights abuses, over the long term, shapes democratic practices more broadly. What is clear is that agonism requires confrontation to be incorporated or integrated into democratic institutions. As Mouffe (2000) states, “Modern democracy’s specificity lies in the recognition and legitimation of conflict” (p. 103). What is less clear, then, is what type of confrontation could have a positive effect on democratic practices. This chapter empirically tests this relationship. It finds that contestation improves measures of respect for human rights and civic empowerment. That is, without any formal or informal response, simply speaking out and making abuses known improves respect for human rights, generally. The data also illustrate that, there is a positive cumulative effect of trials over time, regardless of the outcome, which demonstrates the importance of reflexive innovation, as emphasized in pragmatic thought. In addition, there is a positive, cumulative relationship between respect for human rights and non-judicial remedy efforts, but this finding is driven by non-judicial remedy efforts that are stateled. Corporate-led non-judicial remedy efforts, however, do not fulfill the agonistic vision; those mechanisms are not associated with improvements in democratic practices over the long term. Finally, the conclusion provides an overview of the argument and findings, which together call for a departure from the more traditional narrative around the governance gap. Instead, this research illustrates that while impunity does exist, there are many more efforts to hold corporations accountable than the governance gap narrative would suggest. The varieties of remedy approach focuses on the real shortcomings associated with governing in the corporate context. I argue that, as Smith recognized, we must have a more just approach to business conduct. As such, greater attention must be paid to the ability to engage with an adversary, absorb contestation, and explore creative solutions to find a better path forward. This concluding chapter also addresses the generalizability of this work and shares some areas of future research.

broader implications An improved understanding of access to remedy is of great import for the lived experiences of those facing such abuse. Agonism brings into focus how the

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business and human rights context serves as a microcosm for thinking about the future quality and, quite possibly, the endurance of democratic institutions. As illustrated by each claim in the CHRD, the gains promised by democratic systems and free markets have not arrived quickly enough. This analysis highlights the conditions under which contestation can create more productive outcomes, as the contours of market economies and democracies continue to be drawn.24 For individuals and victims of corporate human rights abuse, this research outlines what type of confrontation will lead to remedy mechanisms. For firms seeking to better promote remedy for human rights abuses and wrongdoing, this research proposes a new understanding that might make their engagement in remediation efforts more meaningful. For policymakers and advocates, this research highlights local efforts to improve access to remedy and shows where democratic institutions should be strengthened to deliver greater access to remedy for victims of business-related abuse. For advocates of human rights, the findings herein have important implications for the type of involvement by NGOs and INGOs needed; not all participation is the same and some involvement can stymie, rather than support, access to remedy. In addition to the specific context of victims’ access to remedy for corporate wrongdoing, more is at stake. At its core, this book delves into the contestation around the type of economy or the type of market that citizens want. It brings to bear tough questions about the trade-offs associated with economic development and the conflicting values around economic growth. Keohane (2002) notes that “the choice is not globalization or not, but relatively legitimate globalization with a measure of democratic and pluralistic external accountability over powerful entities, and illegitimate globalization without such accountability” (p. 27). As economic power has shifted from the state to private actors, the achievements made around states’ respect for human rights only have value if private actors are held to such expectations as well. Each event, each confrontation analyzed here, represents a moment at which the contours of what is acceptable or unacceptable begin to take shape.

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There is, of course, a robust literature on contentious politics that explores how social mobilization (e.g. demonstrations, strikes, and civil disobedience) shapes government policy (see Chenoweth and Stephan 2011; Tarrow 1996; Tilly and Tarrow 2015). The exploration here is distinct in two ways: first, this analysis focuses on how individuals make their claims heard by corporations and/or the state; second, the notion of contestation has a broader definition and wider scope. Contestation may well fit into definitions of contentious politics – certainly there are strikes and protests associated with the abuses explored in this text – but, as used here, it can also fall well outside of those bounds. Contestation can include publicizing one’s grievances, participating in negotiations, or filing a claim with the state for corporate wrongdoing.

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Seeking Justice presents a study of contestation and governance by exploring access to remedy mechanisms for corporate human rights abuse. To be clear, I do not argue that contestation will always result in accountability; there are numerous instances in which victims have no access to remedy mechanisms. However, without access to remedy in some portion of contested events, the strength and longevity of political and economic systems may suffer. For example, trust in political and economic institutions could dwindle as victims of corporate human rights abuses sense there is no institutionalized outlet for their concerns to be addressed. Without sufficient avenues for contestation, civil society and economic actors may abandon this collective, democratic experiment, altogether. In short, civil society may begin to disengage from accountability efforts and, instead, opt for more violent means of protest, while economic actors, questioning the profitability of projects that face persistent, violent conflict, may simply close their doors. Smith understood the gravity of this point, as well: “Justice. . .is the main pillar that upholds the whole edifice. If it is removed, the great, the immense fabric of human society, that fabric which to raise and support seems in this world, if I may say so, to have been the peculiar and darling care of Nature, must in a moment crumble into atoms” (1759, p. 64). Without justice, in short, there is no wealth of nations. In sum, for democracy to thrive, contestation needs to occur in a way that promotes democratic values – even in the corporate context. If contestation has an outlet – if pathways to remedy mechanisms are clear and accessible – it can facilitate the type of reflexive innovation and experimentation that pragmatic and agonistic scholars suggest is fundamental for the creation, strength, and endurance of democratic institutions. It can also facilitate more meaningful participation by rights holders and other local stakeholders. “The challenge of institutional imagination, therefore, cannot be met but by privileging the excluded as actors and beneficiaries of new forms of global politics and legality” (Santos and Rodríguez-Garavito 2005, p. 9). Seeking Justice, in short, identifies pathways for productive contestation by victims of corporate human rights abuses while also addressing whether such instances could prompt an opportunity to facilitate what Honig (1993) calls the “affirmative dimension of contestation” (p. 15). This book informs how confrontation can shape governance in productive ways; it facilitates our understanding, and creation, of democratic designs that can harness discord in a productive manner.

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2 Varieties of Remedy How Contestation Shapes Governance

The current literature and policy discussions about the governance gap, in contrast to the varieties of remedy approach, would lead us to believe that companies are able to commit abuses due to their increased economic power and the relatively weak institutional environments in which they work. States, the logic goes, are unable to hold corporate actors accountable because they do not have the capacity nor the political will to do so. Thus, companies enjoy impunity because they are above the law either due to their economic prowess or because of complex jurisdictional challenges. Multinational and foreign enterprises, in particular, are able to circumvent the law by conducting business in one set of countries, maintaining their headquarters elsewhere, and, quite possibly, utilizing a network of subsidiaries to further distance themselves from any legal responsibility. In other words, this narrative suggests that the governance gap is alive and well. However, the empirical evidence suggests a more nuanced story. In Paraná, Brazil, for example, about 150 members of the La Via Campesina, an international organization of peasant movements, were occupying contested land used by Swiss biotech firm Syngenta.1 A group of approximately forty armed men employed by Syngenta’s security company, NF Segurança, opened fire on the encampment, killing Valmir “Keno” Mota de Oliveira, a leader of the Landless Workers’ Movement (Movimento dos Trabalhadores Rurais Sem Terra, MST), and injuring eight others (Amnesty International 2008). A judge described the incident as “a massacre disguised as repossession of property” and confirmed that specific leaders of the Landless Workers’ Movement were targeted in the attack. While the company claimed the attack was carried out on the orders of landowners – not the company – the judge

1

CHRD unique ID: 101SYG0007.

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ruled against them (Direitos 2015). An appeals court recognized that the peasants should not have trespassed, but it upheld the ruling; Judge Wellington Emanuel Coimbra de Moura noted that the company “took action without seeking legal authorities” (Ghisi and Petry 2018). The court upheld the 2015 decision of the lower court, when Judge Pedro Ivo Moreiro condemned Syngenta’s attack, stating: “While trespassing is reprehensible and illegitimate, it is not the case to act on one’s own and impose death penalty on occupiers, but to seek legal means to solve the conflict. After all, in the legal system, taking arbitrary actions for personal reasons is a crime” (Ghisi and Petry 2018). Syngenta paid damages to those who were injured and the families of those who were killed; the company also returned the land to its rightful owners. Other allegations are met with non-judicial remedy mechanisms, which capture a broad array of remedy efforts that occur outside of the judiciary. For example, the Argentinean labor authorities investigated and later accused Nidera, a leading seed producer and distributor, of holding at least 130 seasonal workers in forced labor-like conditions in San Pedro, a province of Buenos Aires (La Nación 2011; Sjödin 2012).2 Judicial remedy efforts were attempted but, ultimately, unsuccessful.3 Instead, OECD Watch, a non-governmental organization (NGO), in coordination with a group of Argentine and Dutch NGOs, filed a complaint with Nidera’s corporate office in the Netherlands.4 Together, the company and OECD Watch participated in negotiations, led by the Netherlands’ National Contact Point. The parties agreed to a number of steps to address the concerns at the site in Argentina. Members of OECD Watch visited the site approximately one year later and confirmed that Nidera had complied with the terms of the agreement (OECD Watch 2011). Certainly, corporate impunity occurs as well. A textile company in Guanajuato, Mexico, for example, transported female employees from China, only to hold them hostage under forced labor conditions (Crónica 2008).5 The employees were allowed to leave the premises for only two hours per week, were required to work 17–18-hour days, and were fined and/or given less food if production quotas were not met (Crónica 2008). Mexico’s National Commission for Human Rights (Comisión Nacional de Derechos Humanos, CNDH) contacted the textile company about these claims. Yet, after various 2 3

4

5

CHRD unique ID: 101NID0007. The National Labor Ministry submitted a formal request to a local court to investigate and open a case against Nidera. However, the judge denied the request to investigate, thereby precluding all judicial proceedings (La Nación 2011). The formal complaint can be found on the OECD Watch website: https://complaints .oecdwatch.org/cases/Case_220/961/at_download/file. CHRD unique ID: 201KBL0008.

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interactions with the CNDH, the company simply dismantled their operations and disappeared “from one day to the next” (Crónica 2008). While numerous instances of business-related abuse are left unchecked, the CHRD illustrates that there is greater variation in victims’ access to remedy than the oft-cited governance gap narrative would suggest. Corporations are confronted by victims, human rights advocates, state actors, and even domestic or international NGOs to redress abuses. Victims seek access to judicial remedy mechanisms in hopes of obtaining remedy in the court of law. Government, private enterprises, or victims and their advocates also initiate non-judicial remedy mechanisms. In short, governance efforts – either formal or informal, by state actors, business, or civil society – are employed to respond to confrontation about corporate human rights violations. I argue that the governance gap imprecisely describes the business and human rights landscape. Scholarship about the governance gap emphasizes its implacable nature; yet, I do not find evidence of a governance gap that is seemingly “omnipresent” (Rasche 2010, p. 502), “critical” (Fasterling and Demuijnck 2013), or persistent (Simons and Macklin 2014, p. 16).6 Such accounts “turn a diagnosis of states in developing countries as weak and/or undemocratic into a reason to push them to the background of the theory” (Bartley 2018, p. 41). Although an effective heuristic in some circles, the governance gap misdiagnoses the problem. Contrary to the notion of a governance gap, which does not consider the multiplicity of factors that shape victims’ access to accountability, I argue that corporate strength is often the result of state policy and not an unintended consequence. In short, corporate strength is a feature of our current global economy, not a bug. Neoliberal economic policies adopted throughout the developing world in the 1970s and 1980s intentionally strengthened the role of private enterprises. Meanwhile, the tendency to overlook the origins of today’s political economy enables policymakers and corporate leaders to miss more appropriate, accessible, or even feasible means of improving access to remedy for human rights abuses in the corporate context. Legal scholar and former member of the UN Working Group on Business and Human Rights, Surya Deva, argues it is “too simplistic to identify one 6

Domestic actors are notably absent from much of the business and human rights literature. Classic political economy scholarship, for example, explores how domestic agency shapes the adoption or implementation of global rules or regimes (Frieden 1991; Milner 1997; Rogowski 1989). Other scholars have extended and built upon these themes. For instance, Olsen and Sinha’s (2013) discussion of “relative divergence” emphasizes the need for a greater focus on the linkages and interests of domestic actors to understand the implementation, or lack thereof, of global norms. Nem Singh and Camba (2020), in a related vein, explore how the variation in domestic governing coalitations influences the adoption of global regulatory norms in the mining industry.

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variable [e.g. the governance gap] as the root cause of a complex problem which is caused by several factors. Making such an assumption is problematic because this might result in all remedial efforts focusing on something which is not the sole or even main contributing cause of the problem” (2011, p. 119). Case in point: many business and human rights policy efforts are largely focused at the international level (e.g. the UNGPs, or the current discussion of a business and human rights treaty), rather than recognizing and bolstering efforts by local actors to hold businesses to account.7 Two streams of political philosophy – pragmatism and agonism – provide the theoretical foundation for the varieties of remedy approach developed throughout the book. This chapter begins by discussing the shortcomings of the governance gap to highlight the need for a new perspective that more adequately engages with the complexity of the confrontation–governance nexus explored here. Next, I outline the varieties of remedy approach and illustrate its ability to better elucidate the business and human rights landscape than existing explanations. In particular, this approach takes into account the complex processes, the multitude of actors involved, and the foundational role confrontation plays in access to governance or remedy mechanisms. The varieties of remedy approach emphasizes the role confrontation plays in governance outcomes. As discussed at the end of the chapter, agonism points to the cumulative role confrontation may have in improving political processes and strengthening democratic practices.

mind the gap: uncovering assumptions and oversights The governance gap – and the proposed or realized initiatives to fill or reduce it – dominates the business and human rights scholarship and policymaking efforts. Well over a decade ago, Ruggie wrote: The root cause of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and the impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge. (2008b, para. 3)

7

While domestic regulatory efforts are increasing, particularly in Europe (see the discussion in Chapter 1), the overarching policy efforts for business and human rights have been broadly focused at the global level.

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Many others have echoed this narrative. Lukas and coauthors lament the “wide discrepancy” that “exists between the de facto power relations and the insufficient international legal instruments to regulate and control corporate behavior” (2016, p. 5). Simons and Macklin (2014) argue that not only does a governance gap exist, but that it will likely result in greater human rights abuses (p. 16). Even recently, the Working Group’s “stocktaking” report about the UNGPs’ first decade references how “the ‘governance gaps’ that created the need to develop the UNGPs still allow too many instances of businessrelated abuses” to occur (2021, p. 5). Yet, many victims do have access to remedy mechanisms. In fact, 65 percent of the allegations in the database are associated with some type of remedy effort. Victims in 31 percent of allegations have access to judicial remedy, victims in 25 percent have access to non-judicial remedy, and 9 percent of allegations of abuse use both mechanisms; Chapter 3 explores these trends in greater detail. Though one would hope all victims have access to remedy, these numbers do not reflect the pervasive gap described in the literature. To inform why victims don’t have access to remedy, in short, this book explores why they do. To begin, I discuss some of the assumptions and oversights inherent in the governance gap narrative. First among the existing assumptions mentioned in brief in Chapter 1, the governance gap suggests that states have become weak or lack the capacity to govern, when, in fact, the literature illustrates that all kinds of states are capable of shaping the behavior of economic actors. For example, the state and society literature informs us of states’ strength and omnipotence. In classic texts, the state is depicted as an independent actor that governs through rules and institutions (Krasner 1984; Linz and Stepan 1978). The state’s autonomy and ability to shape (or reshape) non-state actors is of central concern. The literature identifies how different types of states have the capacity to affect social and economic systems: welfare states (Hall and Soskice 2001), corporatist states (Collier and Cardoso 1979; Malloy 1976), bureaucratic authoritarian states (O’Donnell 1988), and others; each is capable – through an admittedly wide variety of means – of influencing corporate actors. More specifically, canonical studies in the political economy of development literature document examples across time and space about the state’s ability to organize private actors to its benefit (Chaudhry 1993; Katzenstein 1977). Evans (1995) highlights the importance of state linkages with specific industrial sectors in explaining development outcomes of the so-called Asian Miracles in East Asia. Berger’s (1983) account highlights how the French government sought to regulate the private sector behavior by creating “corporative organizations.” Those organizations relied on the state for collective

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identification, which made them susceptible to changes in the state’s political landscape. Schneider’s (2004) research illustrates that incentives and resources offered by the state explain the organization of Latin American business associations. More recent work highlights the multiplicity of fragmented and overlapping economic policies that states have adopted through the years to shape the economic system and actors therein. In response to the 2009 economic crisis, Grabel (2017) describes the emergence of an “unruly pragmatism,” which she calls “productive incoherence.” This literature indicates the persistent and varied ways states – whether they are weak or strong, small or large, developed or developing – affect corporate behaviors in differing contexts. As an extension to the political economy of development literature – and in contrast to the governance gap’s notion that corporate strength has overpowered the state – I argue that corporate strength was an explicit goal of state policy, not an unintended consequence. It was a foreseen outcome of economic reforms that were adopted across Latin America and the developing world. Neoliberal reforms in the 1970s and 1980s, solidified through the Washington Consensus of the early 1990s, required states to step out of the way of private companies. In other words, minimal governance was part and parcel of US-backed policies that were intended to launch the developing world forward on a path of economic prosperity through free trade and deregulation. As many Latin American countries transitioned to democratic rule, previously nationalized industries were privatized to promote foreign direct investment. Most of the region’s leaders adopted neoliberal policies, thereby replacing import substitution industrialization policies with a more marketoriented approach. These policy changes were a partial response to the 1982 debt crisis and subsequent conditions of loan packages from international financial institutions, like the World Bank and International Monetary Fund. Such “structural adjustments” led to a vast influx of private funds during the early 1990s, primarily from Western Europe, Japan, and the United States, which climbed from only $13.4 billion in 1990 to $57 billion in 1994 (Skidmore and Smith 2001, p. 60).8 The irony, of course, is that it was the promulgation of a specific set of policies that led to greater privatization, less regulation, increased globalization, and, thus, increased autonomy – and power – of private actors. However, while this economic shift took hold, there were no coordinated, simultaneous efforts to create parallel systems capable of dealing with the 8

The region has only recently seen a decline in FDI, as flows slowed globally and investors shied away from investing in countries with more left-wing leaders, or what was the rise and fall of the so-called pink tide – referencing those elected politicians who rejected neoliberalism and adopted more socially progressive policies – across much of the region in the late 1990s and early 2000s.

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negative externalities of large, global, private entities. Dewey (1927) aptly notes that today’s institutions are the residue of yesterday’s problems. The international human rights regime is no exception. The Declaration of Human Rights and other founding documents were written in the aftermath of horrific state-sponsored human rights abuse (e.g., the Holocaust and WWII) and, thus, directly targeted state actors. Those writing about the governance gap underestimate “the significance of the fact that international (human rights) law was traditionally concerned with protecting human rights against state action and not against private corporate actors” (Deva 2011, p. 118). Allied forces created the United Nations and began to construct international human rights and customary law in the aftermath of WWII. The emphasis, then, was to create an international legal system in which states’ duty was to ensure that state and nonstate actors respect human rights, without a specific focus on private enterprise. As such, “international law and human rights law have principally focused on protecting individuals from violations by governments” (Weissbrodt 2005, p. 59).9 Thus, policymakers and scholars have focused overwhelmingly on creating parallel structures for private enterprise at the global level, while overlooking both the domestic policies that facilitate corporate abuse and the ways in which local actors continually seek accountability. What is missing also from the scholarship, generally, is a serious consideration of the confrontation itself: What is the nature of the claim? Who is involved? And how does the confrontation amplify specific voices? In short, extant work does not adequately explain the empirical record. It does not reflect the type of claim, who committed the abuse, or how the nature of confrontation might shape corporate or state behavior and, thus, victims’ access to remedy mechanisms. Without a better understanding of the variation in access to remedy, current policy efforts may be ineffective. In sum, the governance gap literature (perhaps inadvertently) establishes a false ideal of governance. In framing the issue as a gap, it indicates that it might easily be filled, if only those involved tried harder or found the right combination of governance mechanisms. As Bartley (2018) writes, the governance literature in general portrays “poor and middle-income countries as little more than empty spaces waiting to be filled” (pp. 43–44).10 In framing it as a global issue, the governance gap narrative overlooks the incredible effort local

9 10

See also Steiner, Alston, and Goodman (2008); Fitzgerald (2005). Bartley, alternatively, describes them as “crowded spaces” (p. 45) and aims to better understand how transnational governance is implemented and its intersection with domestic governance efforts. While Bartley focuses on the role private companies play in this process, he questions how and whether private regulation can improve labor and environmental practices.

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actors have made to seek corporate accountability. Moreover, this perspective ignores the rich history that brought us here: states engaging in protecting citizens from state-sponsored abuses and the creation of an economic system meant to empower corporate actors.

the varieties of remedy approach: how contestation shapes governance A Pragmatic Lens This section presents the varieties of remedy approach, while also outlining the structure and findings of the book. First, I illustrate how pragmatism offers an improved lens with which to understand the business and human rights landscape; I then outline how agonism–together, with pragmatism–provide the intellectual framework for the varieties of remedy approach. Next, I share a more thorough explanation of the multiple pathways associated with access to remedy mechanisms–institutional strength, corporate characteristics, and elevating voices. Finally, I end by discussing another facet of agonism, which suggests that contestation can lead to institutional strengthening, and how it motivates the final empirical analysis of the book. Political science scholarship (Pratt 2016; Ralph and Gifkins 2017) increasingly draws on pragmatism as an ontology in that it facilitates engaging in complex, dynamic areas of inquiry. Pragmatism is useful in this context for three key reasons, explored below: (a) it recognizes that social transformation is endogenous to actors and their environment; (b) it encompasses the coexistence of multiple, even contradictory, logics; and (c) it allows for equilibrium outcomes while recognizing they may be suboptimal and temporary. In short, pragmatism allows for the contradictions and tensions between economic development and human rights promotion as victims seek to access remedy for corporate wrongdoing. Pragmatism began as a reaction to the prevailing philosophical ideology of the late nineteenth century, which reflected absolutist approaches to abstract conceptions about truth and reality. Alternatively, pragmatism is a philosophy of practice. Charles Sanders Peirce, William James, John Dewey, and others argued that knowledge and practice were the basis of our conception of truth. Pragmatism seeks to understand the dynamic nature of an action, its endogenous effect on knowledge, and, quite likely, future actions. First, pragmatism which originated in the 1870s but became popular in the twentieth century, focuses on “organism–environment transactions”

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(Pratt 2016) and was inspired by the evolutionary ideas developed by Darwin (1859) that took hold in the late-1800s. Though not explicitly pragmatist, a stream of management scholarship employs an evolutionary approach to treat the external environment as an endogenous factor – for example, in understanding adaptation, how organizations are shaped by the external environment (DiMaggio and Powell 1983; Thornton, Ocasio, and Lounsbury 2012), and, by extension, institutional contexts (Aldrich et al. 2008; Foster and Metcalfe 2001; Olsen 2017). Others, of course, have also embraced the endogeneity of actors and their environment, recognizing that they both shape and are shaped by the other (Migdal 2001; Sinha 2018). In a similar vein, the varieties of remedy approach highlights how actors engage with, affect, and are affected by institutions as they seek to obtain judicial or non-judicial remedy. Many of the examples discussed in later chapters illustrate how actors learn and innovate as they either pursue remedy mechanisms or push against them. While the governance gap downplays local actors and overlooks how their interaction with firms shapes both knowledge and future actions of both parties, a pragmatic lens allows for the incorporation of local actors more meaningfully by explicitly theorizing about the ongoing interaction, experimentation, and learning between parties of the contestation. Second, pragmatism accepts the possibility and coexistence of multiple logics given the complexity and multitude of actors involved in dynamic landscapes – like those associated with allegations of business and human rights abuse. Popa, Guillermin, and Dedeurwaerdere (2015) argue that pragmatism provides a model for integrating different types of knowledge together to address complex problems or those that are “characterized by uncertainty, instability, uniqueness, and value conflict” (p. 47). What is missing from the traditional narrative is that norms both restrict and regulate what actors can do, which, in turn, will generate strategic actions to shape such norms. Scholars have explored the adoption, diffusion, or implementation of a particular norm (Risse-Kappen et al. 1999; Risse, Ropp, and Sikkink 2013) while not addressing the simultaneous strategic action taking place to erode its effect. In short, the scholarship on norms fails to consider the coexistence of multiple logics and, importantly, how norm diffusion and norm erosion coexist simultaneously. This means one must hold both the pursuit of, and tension between, economic growth and greater respect for human rights in tandem. Alternatively, pragmatism embraces both processes, recognizing the simultaneous but potentially contrasting logics of both norm promotion and norm erosion. Rather than answering when the morally principled begin and the

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instrumental or strategic end, pragmatism sidesteps motivation and assesses the outcomes of actions. Business leaders may engage in public initiatives to support human rights, even though their operations are rife with abuse. Similarly, victims may be seeking access to remedy through state-based nonjudicial mechanisms or judicial processes, while the state policies to pursue economic growth might increase corporate human rights abuse. Thus, pragmatism offers a lens through which we can understand how actors may be promoting a certain set of norms about respect for human rights, while others within that organization or outside of it might engage in strategic actions to change or shift norms around access to remedy. Third, pragmatism recognizes suboptimal outcomes as opportunities that can generate new solutions through action and reflexive innovation. As Frankel Pratt (2016) argues, “In a pragmatist view of action, then, the focus is on how these transactions and innovations generate change and stability alike, and how the creative process grants subjects the capacity to alter their worlds” (p. 514). Given the fluidity and dynamism of knowledge through experimentation and innovation, pragmatism recognizes that, though equilibria may be achieved, such equilibria may be suboptimal. Indeed, suboptimal outcomes are almost necessary for actors to put reflexive innovation and creativity into action. De Sousa Santos and RodríguezGaravito (2005) emphasize the “fervent experimentation and institutional creativity at the grassroots level” (p. 2). Without setbacks, as it were, actors would not adapt nor be motivated to try new approaches. Along these lines, Ruggie referred to the passage of the UNGPs as the “end of the beginning” (Ruggie 2011). As a framework, pragmatism allows us to make sense of suboptimal outcomes, unintended consequences, and short-term equilibria. On one hand, envisioning the business and human rights landscape in this way highlights the potentially unending struggle ahead, and on the other, it underscores the importance of fomenting incremental advances when they do occur.11

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There are limitations, of course, to pragmatism – notably, its tautological nature may be unsatisfiying to those who seek a parsimonious explanation for the world’s wonders. I aim to strike a middle ground by using pragmatism as an ontology that opens our eyes to solutions that are not immediately obvious by considering a longer-term, possibly circuitous perspective on contestation and governance efforts for corporate wrongdoing. As Pratt (2021) writes, “by accepting the pragmatist view of action, reserachers are more likely to pay attention to the ways actors grapple with challenges and recreate both themselves and their worlds through discovering new ways of doing things” (p. 4). This perspective facilitates an exploration of the varieties of remedy by drawing from the more mainstream literature while also recognizing its transient nature in the shifting landscape of business and human rights.

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In addition to outlining the tenets of pragmatic thought, this discussion also sheds light on the tacit role of confrontation for many pragmatist thinkers. Pragmatists observe that actors and institutions are endogenous and will continually shape one another. Dewey notes “[b]y its very nature, a state is ever something to be scrutinized, investigated, searched for. Almost as soon as its form is stabilized, it needs to be remade” (1927, p. 31–32). Yet, we know this is neither a fluid process nor one that is void of resistance. I argue it is necessary to draw out the role of confrontation more explicitly to better understand how contestation shapes governance outcomes. That suboptimal or even temporary outcomes are part of a pragmatic approach necessarily indicates that some actors’ preferences are not met or are only met for a short while and then need to be reformulated or renegotiated again. In other words, confrontation and contestation form a fundamental, but tacit, aspect of pragmatic thought. Here, then, I build on pragmatic thought by drawing insights from agonism to help construct the intellectual framework for the varieties of remedy approach.

An Agonistic Lens While pragmatism highlights the important role of learning and experimentation, it stops short of theorizing about the role of contestation and its implications for governance outcomes. This is somewhat surprising, given democratic institutions are the context in which pragmatist scholars envision the public to engage in innovative action and knowledge creation (Knight and Johnson 2011). Though it is an underlying tenet of pragmatism, contestation only plays a tacit role. And yet, what of pragmatism in the face of confrontation? Pragmatic inquiry “does not somehow magically dissolve political conflict, but rather helps to illuminate and deepen our understanding of our own and others’ beliefs, values, and interests” (Ansell and Geyer 2017, p. 154). As such, greater inquiry is needed as to how actors’ participation in contestation shapes governance outcomes. As a philosophical orientation that stresses the undeniably contested nature of democracy, agonism helps fill this void. Agonistic scholars have taken issue with a Habermasian view of deliberative democracy, which assumes consensus will be achieved through deliberative processes.12 As Mouffe (2005) argues, 12

Note that others have begun to highlight how deliberative democracy and agonism can be complementary (Dawkins 2015; Brand, Blok and Verweij 2020) and that deliberative democracy, in practice, is less focused on consensus than its theoretical origins may suggest (Curato et al. 2017, p. 31). For example, the task of deliberative democracy to promote mutual

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“[i]nstead of trying to design the institutions which, through supposedly ‘impartial’ procedures, would reconcile all conflicting interests and values, the task for democratic theorists and politicians should be to envisage the creation of a vibrant ‘agonistic’ public sphere of contestation where different hegemonic political projects can be confronted” (p. 3). Agonism also recognizes how actors’ values, beliefs, and perspectives can come together to address complex issues over time. As such, Honig (2007) writes that to “affirm the perpetuity of the contest is not to celebrate a world without points of stabilization; it is to affirm the reality of perpetual contest, even within an ordered setting, and to identify the affirmative dimension of contestation” (Honig 1993, p. 15). From this quote we can recognize the two key tenets of agonism: perpetual contest and the affirmative dimension of that contestation. Agonism addresses and builds on the shortcomings of pragmatism by bringing confrontation into focus. First, it highlights how seeking remedy for corporate human rights violations is a form of perpetual contest; the very act of making such events known, or making them heard, is necessary to generate awareness or a response from state or corporate actors. Adopting an agonistic lens also shifts our attention toward democratic or institutionalized pathways for confrontation. In the business and human rights context, an agonistic perspective underscores the importance of providing pathways – formal and informal, judicial and non-judicial – for contestation that, in turn, seek to facilitate access to remedy mechanisms and improve corporate respect for human rights. Second, rather than lamenting the tension inherent in confrontation, agonism acknowledges that even with the establishment of norms or legitimate organizational fields, preferences change, and new tensions emerge. Convergence on particular ideas or behaviors may take longer to achieve, and even then, preferences can shift, thereby igniting new phases of contestation. The agonistic perspective recognizes that contestation is perennial, understanding or to integrate diverse forms of knowledge are not too dissimilar from notions of agonistic respect and calls to embrace pluralism. They could be considered complementary from a temporal perspective, as well. One might consider that the contestation inherent in agonism is a precursor to deliberative practices and processes, when the latter are unattainable. For example, Martin Luther King, Jr. (1963) wrote from his prison cell in the Birmingham jail, “Too long has our beloved Southland been bogged down in the tragic attempt to live in monologue rather than dialogue.” Non-violent action – or contestation – was necessary to arrive at a place and space in which dialogue might occur. Exploring the relationship between agonism and deliberative democracy, however, is beyond the scope of this project. Instead, this book engages in agonism to emphasize the perpetual nature of contestation and the affirmative potential of that type of engagement – not for deliberation, per se – but for broader institutional strengthening, as argued by agonistic scholars.

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never-ending. In the business and human rights landscape, an agonistic outlook cautions against the tendency to seek a single solution that can be adopted through consensus. Agonism, instead, focuses on the ways in which contestation can be absorbed, which, in turn, can strengthen democratic institutions, a line of thought further explored later in the chapter. Unpacking How Contestation Shapes Governance: Pathways to Remedy Two streams of agonistic scholarship drive the empirical analysis throughout the book, which is based on exploring the varieties of remedy approach. The first body of agonistic scholarship emphasizes the importance of a) the quality of the institutions and b) who has access to them. The second stream begins to theorize how contestation can shape existing institutions over time. Pragmatism and agonism do not tell us which characteristics of contestation matter. In this section, I draw from related literatures to inform which factors shape governance outcomes. That is, how does claim-making in the business and human rights space shape access to governance outcomes, namely judicial or non-judicial remedy mechanisms? Multiple Pathways: Victims’ Access to Remedy Mechanisms Agonism underscores the idea that who participates in confrontation is political. In contrast to traditional deliberative democracy scholarship, agonistic thought makes explicit the power and inequality of democratic politics so as “to bring them to the fore, to make them visible so that they can enter the terrain of contestation” (Mouffe 2000, pp. 34–35). Early agonistic scholars, such as Jacques Rancière and others, highlighted that agonism must be a process through which previously excluded groups are included in some fashion. While Mouffe says that institutions must adapt to incorporate conflict, she also notes that those institutions must address the claims of those who were previously or traditionally excluded. Agonistic thought, in this sense, makes some important claims about who gets to participate.13 The empirical analyses included in Chapters 4 and 5 seek to better understand how the characteristics of the claim (e.g. type of abuse, by whom, and in what context) shapes governance (e.g. access to remedy mechanisms). Questions of power and exclusion are particularly relevant in the business and human rights space. A 2016 report by the Interamerican Association for Environmental Defense (Asociación Interamericana para la Defensa del 13

Agonsim, however, falls short in what is described elsewhere as the “technology of engagement” (Olsen and Van Buren unpublished manuscript).

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Ambiente, AIDA) noted that “the asymmetry of power between companies and affected people, among other factors, makes access to justice difficult in the Americas” (AIDA 2016). Instances in which there is no access to remedy reiterate the pervasiveness of this issue, and these instances have important implications for the quality and future of institutions for which no outlet for contestation exists. Yet, the variation outlined at the outset of this chapter illustrates that victims, at times, do have access to remedy mechanisms. The characteristics of the confrontation – where the claim is made (e.g. institutional strength), who makes the claim (e.g. victims or those advocating on their behalf ) and against whom (e.g. large/small, foreign/domestic, profitable/unprofitable firms) – shape access to remedy in ways the extant literature would not predict. While each chapter delves into literatures relevant for the remedy mechanism of interest (e.g. Chapter 4 on judicial remedy and Chapter 5 on non-judicial remedy), I argue that access to remedy mechanisms is best understood through three pathways: Institutional Strength, Corporate Characteristics, and Elevating Voices. Here, I provide a brief description of each pathway as it relates to the varieties of remedy approach. Note that in Chapters 4 and 5, however, more specific findings will be shared based on the empirical analysis therin. For now, the discussion serves to provide the contours of each pathway in broad strokes, as depicted in Figure 2.1. Institutional Strength. Democratic institutions set the stage for both agonism and pragmatism literatures, as they require existing institutions to be the setting in which contestation and reflexive innovation may occur. Thus, the varieties of remedy approach implies that access to remedy is tightly linked to the institutional strength of the country in which remedy is sought. The literature explored in Chapter 4 suggests rule of law can serve as a deterrent effect (Nagin 1998, 2013; Matsueda, Huizinga, and Kreager 2006) – by engaging companies (or their competitors) in costly legal battles – while also outlining norms and standards for corporate respect for human rights. Greater respect for rule of law will be associated with greater access to judicial remedy. This pathway, however, deviates from assumptions made within the literature about corporate conduct and non-judicial remedy in the context of weak institutional environments, as explored in Chapter 5. When rule of law is weak, other facets of the state come into the fold; victims are more likely to access state-led non-judicial remedy in contexts of weak rule of law. Given the deterrent effect is absent in countries with weak rule of law, corporate actors are unlikely to engage in non-judicial remedy provision. This pathway challenges recent research which suggests that when states are weak, corporations are likely to step into the fold to provide public goods and services (cf Scherer

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figure 2.1. Pathways to remedy, general description

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and Palazzo 2007, 2011). The varieties of remedy approach, alternatively, highlights that the judiciary will act when rule of law is respected, but that other state-based administrative bodies are more likely to provide non-juducial remedy in countries with fragile institutions and weak rule of law. Capitalizing on Corporate Characteristics. The second pathway in the varieties of remedy approach illustrates how corporate characteristics shape access to remedy. The intellectual framing provided by agonism and pragmatism emphasizes the power dynamics associated with contestation but is not clear as to what type of firm would be more or less likely to engage in, or face, remedy efforts. The varieties of remedy approach considers corporate resources and capacity, noting that these characteristics can both facilitate a firm’s ability to avoid accountability efforts while also making them more vulnerable targets. When a firm is foreign, it will be less likely to face judicial remedy because of jurisdictional issues outlined above. Profitability will also buffer firms from judicial action. Political economy explanations would suggest that more profitable firms are more likely to be politically connected. Other scholars may point out that with additional “slack” or profits, the firm can also employ legal resources to avoid judicial processes. This pathway illustrates that a firm’s size, however, will make it more likely to face judicial action, both because larger firms have greater reach (e.g., more potential claims to be made) and greater visibility. With regards to non-judicial remedy, this pathway shows that larger firms will be more likely to engage in corporate-led non-judicial remedy because they have the capacity to do so. State actors, however, will be more likely to engage profitable firms in state-led non-judicial remedy efforts, as firms have the resources to engage in roundtable dialogues, respond to state-led inquiries, or engage in administrative processes that may result in fines. The findings in subsequent chapters have important implications for a burgeoning literature that seeks to understand the tendency of firms to be simultaneously “responsible” and “irresponsible” (Herzig and Moon 2013; Kotchen and Moon 2011; Strike, Gao and Bansal 2006; Andreopoulos, Arat and Juviler 2006), sometimes through “organized hypocrisy” (Lim and Tsutsui 2012), especially in contexts of institutional complexity (Greenwood 2011). The Capitalizing on Corporate Characteristics pathway is supported by the literature in general terms, but the findings in this study add considerable nuance. The varieties of remedy approach illustrates that a firm’s resources and capacity can work differently in terms of a firm’s propensity to be held accountable for wrongdoing through judicial processes or non-judicial. Rather than writing off firms as powerful and victims as weak, the varieties of remedy approach adds more nuance and supports the notion that victims

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can incite remedial action by their private or public counterparts. Agonism suggests that “[w]hat liberal democratic politics requires is that the others are not seen as enemies to be destroyed, but as adversaries whose ideas might be fought, even fiercely, but whose right to defend those ideas is not to be questioned” (Mouffe 2013, pp. 6–7). By identifying some of the pathways to judicial and non-judicial remedy, the varieties of remedy approach begins to uncover the contexts under which such agonistic engagement, might occur. Elevating Voices. The final pathway centers on the role of civil society and its ability to amplify victims’ claims, help them navigate local processes, and thus, pressure firms and states to engage in remedy mechanisms. Agonism, in particular, makes explicit the power differential between firms and victims, as participation in contestation is political. Chapter 3 discusses the great threat many human rights defenders, especially in Latin America, face in making these claims known. As Cedric Dawkins writes, “It defies reason that a fair discourse around ideas can occur when large power asymmetries enable one party to dominate the discussion” (2015, p. 10). Thus, this analysis explores the role supporting organizations – domestic as well as international NGOs – may play in elevating victims’ voices or in creating countervailing power mechanisms (Rodríguez-Garavito 2017, p. 24) when facing corporate or state actors. In the context of business and human rights, NGOs and INGOs seek to augment the voices of those who may not have the necessary networks to make their claims heard. The varieties of remedy approach highlights the importance of local knowledge through reflexive innovation. While INGOs may seek to elevate local voices by publicizing corporate wrongdoing or engaging corporations in conversation, the varieties of remedy approach recognizes that INGOs often have many audiences and varied objectives. INGOs may bring broader awareness to the claim, but doing so will be unlikely to result in greater access to remedy for victims. Local NGOs, alternatively, may provide muchneeded expertise to facilitate victims’ navigation of, and access to, administrative or judicial proceedings. Local knowledge, in the varieties of remedy approach, will be associated with improved access to remedy mechanisms because it is victim-centered. Involvement by domestic NGOs facilitates access to remedy mechanisms, whereas the amplification of these abuses from afar is a form of naming and shaming that can be quickly forgotten. The elevating voices pathway, in short, highlights the power differentials that are foundational to these claims, and thus, highlights the importance of local knowledge which can facilitate reflexive innovation, creativity, and improved access to remedy.

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Building Institutions: An Empirical Test of Agonism Finally, agonism theorizes about the value of contestation and argues that the act itself can build or strengthen democratic institutions when they allow individuals to make claims or grievances: “The achievement of democracy is to transform a relation of antagonism into one of agonism” (Schaap 2009, p. 3). Agonistic thought places less of an emphasis on how the contestation or confrontation ends, which is applicable to this analysis in that it provides the foundational step understanding the value of accessing remedy mechanisms, rather than focusing on the outcomes of remedy efforts. Agonism avoids a focus on outcomes because as one conflict is resolved, another emerges. Mouffe “steers a course between de-politicization (in the form of a hegemonic consensus) and over-politicization (in the form of the violent eruption of antagonism)” (Schaap 2009, p. 3). What is implicit for pragmatists and explicit for agonistic thought is that the act of confrontation heard through productive democratic designs, among others can lead to improved democratic processes. As Schaap (2009) writes: Crucially, agonistic politics is always also fundamentally concerned with the staging or representation of political claims: it is concerned with transforming the context in which political claims can be heard by an audience as arguments that have a claim on them. And it is with this transformation of the political context in terms of which conflict is represented that a break is enacted with an existing social and/or legal order. (Schaap 2009, p. 3)

As this passage illustrates – for all agonists – the most important aspect of confrontation may not be that each specific claim is addressed, but that the overall political procedures and processes are altered. These ideas resonate as one considers other key political shifts that have occurred within democratic states in which agonistic confrontation led to political transformation over long periods of time and with numerous, even ongoing, setbacks (e.g. suffrage, labor, or civil rights, among others). While the pathways explained earlier facilitate the exploration of the variation in access to remedy mechanisms (Chapters 4 and 5) or the how of agonism, an empirical assessment of whether agonism “works” – the so what of agonism – remains: regardless of its outcome, does confrontation facilitate democratic strengthening through improved democratic practices, such as respect for human rights and enhanced civic engagement? In Chapter 6, I engage with this aspect of agonistic thought and ask: over time, does claim making or access to governance mechanisms (e.g. judicial or non-judicial remedy) influence a country’s democratic practices? Is there a broader effect, in other words, of addressing human rights abuses in the corporate context? If

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so, which processes – claim making, formal, or informal remedy mechanisms – are most likely to improve democratic outcomes? I find that the act of making one’s claim known, cumulatively over time, is positively associated with improved measures of respect for human rights. Moreover, trials for corporate human rights abuse have a positive correlation with broad measures of respect for human rights and civic empowerment, which has been supported in other contexts (Dancy et al. 2019). However, not all governance mechanisms are equal; I find that non-judicial remedy mechanisms only have a positive effect on respect for human rights when they are led by state actors; corporate-led non-judicial remedy mechanisms have no discernible effect on democratic practices. These findings have important implications for agonism. If certain governance mechanisms improve rights and strengthen democratic practices more than others, all actors – business leaders, policymakers, and civil society – need to think more carefully about the types of acceptable responses to claims of corporate human rights violations. In short, some institutional designs, or governance responses to wrongdoing, are better than others. As Schaap (2009) notes, some agonistic scholars may express an “unwarranted optimism. . .[which] is evident in the thematization of political struggle as a play of difference in which there are no losers, the assumption that conflict will sustain plurality and cultivate respect rather than polarize and entrench group identities and the lack of institutional protections against the disintegrative tendencies of agonism” (p. 3). This passage emphasizes that while the analysis illustrates that the central tenet of agonism holds – contestation creates greater rights protections and civic engagement – there are scope conditions around the type of governance mechanism that will positively affect the enduring process of building and strengthening democratic institutions. These findings suggest that even when claims are heard, some governance mechanisms (judicial action and state-led non-judicial remedy mechanisms) have positive spillover effects while others (corporate-led non-judicial remedy mechanisms) have no long-term effect on existing disparities. Schaap characterizes Mouffe’s thinking as one that “serves to defuse potential antagonisms by providing a legitimate outlet for political grievances” (Schaap 2009, p. 1). This analysis begins to shed light on which outlets are more likely to do so. Yet, agonism and pragmatism tell us that how victims, their advocates, states, and firms, respond to setbacks is another key component of the varieties of remedy approach. Dewey writes that “life is interruptions and recoveries” (1927/1954, pp. 178–179). Pragmatism makes innovation foundational, while agonism emphasizes the crucial role of experimentation, especially in newly contested areas, such as business and human rights.

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In a more qualitative fashion, there are numerous instances throughout the book that outline how experimentation in confrontation can ultimately shape governance outcomes. In particular, some scholars point to the notion that agonistic experimentation can be unconventional. In the context of business and human rights, Norval (2009, p. 164) writes about the novel act of applying the eighteenth-century, US federal law, the Alien Tort Statute (ATS) to an unprecedented case by the Khulumani Support Group against companies which did businesses in apartheid South Africa. In so doing, the conventional is challenged, as political space is reconfigured by identifying a new subject and giving voice to those previously excluded. The case was ultimately dismissed in 2016, in part, due to the substantially reduced scope of the ATS under new rulings from the United States Supreme Court, discussed further in Chapter 4. Such a response highlights an important point: reflexive innovation is not limited to one side or the other. As illustrated throughout the book, the varieties of remedy approach embraces this tension and the “value of struggle in sustaining freedom and plurality. [. . .] The agon is celebrated as a never-ending play of differences, which resists the homogenizing drive for social unity, enabling plurality to flourish” (Schaap 2009, p. 1).

conclusion This book explains how contestation about human rights abuses shapes access to remedy mechanisms. It also explores whether such confrontation, or the “never-ending play of differences” (Schaap 2009, p. 1) has long-term effects on democratic practices. This research utilizes a pragmatic framework and embraces the complexity of seeking justice for corporate human rights abuses, while building on the agonistic observation about the importance of confrontation for democratic societies. The existing approach to business and human rights has an almost myopic focus on the governance gap, which at a minimum is misleading, and at worst creates policies that will improve neither governance nor narrow the gap. As aptly stated by Avant, Finnemore, and Sell: The assumption that the global political system is constituted by unitary, instrumental states and structured by the distribution of power among them has made an analyst’s life easy. It strips away the many pesky and distracting sideshows on the world scene. It makes the very messy world ‘legible’ and comprehensible to both scholars and policymakers, facilitating grand theory for the former and statecraft for the latter (Scott 1998, p. 1–18). The risk, of course, for analysts, policymakers, and citizens is that simplification gets things wrong and is a poor guide to comprehension and action. (2010, p. 4)

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In an effort to not fall prey to this trap, my analysis has begun by identifying multiple pathways, rife with discord and contestation, that may or may not change the status quo. One might think of this as an empirical inquiry into Polanyi’s (1944) double movement, or the tension between economic liberalism and what he calls “the principle of social protection, aiming at the conservation of man and nature as productive organization” (p. 136). The varieties of remedy approach developed here seeks to better understand the process in Block’s depiction of the double movement as the “uneasy and fluid hybrid that reflects the shifting balance of power between. . .contending forces” (2000, p. 1). This is not to say accountability always prevails or that impunity is uncommon. Instead, this analysis requires shifting our perspective to one of confrontation and governance in an effort to better understand when victims have access to judicial or non-judicial remedy mechanisms. This is the messy work of democracy, and, possibly to the astonishment of many corporate leaders, the messy work of capitalism, as well. A pragmatic approach, as expressed later on, captures this notion: “Steady, incremental change through the democratic process, with all its confusions and imperfections, is the political expression of this philosophical creed. These ideas, moderate, meliorist, democratic, and sensitive to the idea that no perfect reconciliation . . . can be attained” (Kloppenberg 1986 in Joas 1993, p. 7). While political, economic, and social changes have empowered new actors in new ways, impunity for corporate wrongdoing does not necessarily persist in all cases. Instead, what this analysis shows are a series of pathways that seek to achieve accountability for victims of corporate human rights abuse. While the pathways to remedy outlined here exist today and could be built upon, a pragmatic orientation underscores that these pathways, too, may change – for better or for worse. Access to remedy is not a linear process, and as the narratives throughout the subsequent chapters illustrate, often require multiple attempts. In other words, reflexive innovation and experimentation are part and parcel of this story. Confrontation also plays a central role. By integrating the role of nonviolent conflict and confrontation into discussions of governance, this research offers a new outlook and perhaps a more positive perspective on the struggle to improve corporate respect for human rights and victims’ access to remedy in the Global South. The struggle continues, though perhaps its severity will ebb and flow. One might hope that in a decade or two a book such as this does not catalogue the many lives lost seeking better living conditions for themselves and their community. One might hope that there are fewer large-scale environmental disasters reported; fewer instances of slave labor; fewer instances of forced

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displacement. It is paramount to recognize that the pathway to improved respect for such rights is winding, and though difficult to accept, it does not “end.” Yet, this is not discouraging. While impunity may prevail at times, institutional legitimacy can be gained through contestation, as actors learn and innovate from one period to the next. The varieties of remedy approach reminds us that confrontation and contestation make democratic practices stronger; indeed, they are integral to the struggle.

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3 The Corporations and Human Rights Database

The idea for this project emerged when a member of the UN Working Group on Business and Human Rights met with me and my colleague, Professor Leigh Payne at Oxford University, to inquire about creating a database of corporate human rights abuses. I had been part of numerous database-creation efforts for other projects, and this was of particular interest, given my previous work in political economy, human rights, and transitional justice (Dancy et al. 2019; Gehlbach, Finkel, and Olsen 2015; Olsen, Payne, and Reiter 2010). Though it would be an enormous undertaking, we were intrigued as the data would facilitate theory-building and evidence-based policymaking for business and human rights, an area with no systematic data on allegations of abuse and access to remedy mechanisms. We gathered some seed funding, hired a team of students from our respective universities, and got to work.1 While Dr. Payne and her co-authors, Laura Bernal-Bermúdez and Gabriel Pereira, shifted their focus to historic corporate accountability and transitional justice (Payne, Pereira, and Bernal-Bermúdez 2020; Payne, Bernal-Bermúdez, and Pereira 2022), I continued to work on creating contemporary allegations of corporate human rights abuse – the Corporations and Human Rights Database – with funding from the University of Denver, and later, the National Science Foundation.2 Since that time, my team and I have created a global database – with over 5,500 allegations of corporate human rights abuse from

1

2

The pilot project data for Latin America was originally funded by the University of Denver’s PROF Fund, Faculty Research Fund, Internationalization Grant; Professor Payne and I also received support from British Academy and the University of Oxford, which supported this work and other data collection efforts related to business and human rights (See BernalBermúdez 2017; Payne, Pereira, and Bernal-Bermúdez 2020). Award Number #1921229, 2019–2022, “Business and Human Rights: Explaining Variation in Justice and Remedy for Corporate Human Rights Violations.”

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around the world.3 The analysis here, however, draws on the data from Latin America (hereafter, I refer to the Latin American data as the CHRD), which constitute the basis for the analysis included in the subsequent chapters.

The Corporations and Human Rights Database The CHRD fills important empirical gaps, as no systematic data about corporate human rights abuse and access to remedy exist to date. First, most of what we know about business and human rights comes from single firms, particular countries, or small-N comparisons of firms or business sectors. While some recent research and advocacy work has sought to buck the trend,4 data on business and human rights, historically, is quite limited. Policymakers and academics alike lament the lack of systematic, longitudinal data in this area. Key stakeholders call for “robust and accurate statistics [to] establish the vital benchmarks and baselines that translate our human rights commitments into targeted policies” (Pillay 2013). The UN Working Group on Business and Human Rights wrote that “Research in the field of business and human rights lacks comprehensive data on the number and nature of complaints against companies for their adverse impacts and the effectiveness of the bodies tasked with investigating and remediating those impacts” (UN Working Group Report 2015, para 88; see also De Felice 2015; Ruggie 2013). And, a recent review article stated that “[f]uture research on the role and relationship between state and business is not only needed with regard to harm avoidance in general but also with regard to providing remedy” (Schrempf-Stirling, Van Buren, and Wettstein 2022, pp. 27–28). The CHRD seeks to fill these gaps. Second, most research on firms focus on large, publicly traded corporations – a majority of which have their headquarters in the United States or Western Europe (e.g. the Fortune 500). Such biased samples skew our understanding and perspective about the occurrence of, and state and corporate responses to, corporations’ human rights violations. The CHRD addresses this limitation by including small, medium, and large firms, as well as those that are publicly traded or privately held. The CHRD data for Latin America, for example, span a diverse set of nearly 1,075 unique firms (while the global 3

4

For more information on the Corporations and Human Rights Database and related work, see: www.bhrlab.com Schrempf-Stirling and Wettstein (2017), for example, collect information on 40 corporate foreign direct liability cases. Other research, as noted later in the chapter, use proprietary databases on environmental, social, and governance (ESG) performance, but those databases offer minimal information on corporate human rights abuses and access to remedy, specifically.

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database includes over 3,300 firms).5 The benefit of a more comprehensive sample is that the CHRD allows for a more complete picture of allegations of corporate human rights abuse. The CHRD’s focus on a broad set of firms presents an opportunity to learn about how firms of different sizes, varying profitability, and diverse headquarter locations (in Latin America and around the world) respond to, or address, corporate human rights violations in the context of emerging or developing economies.6 In short, the CHRD is necessary for data-driven approaches to key questions – questions that are unanswerable with qualitative or small-N datasets – in the political economy, business ethics, and human rights literature. To date, claimants, businesses, and institutions of justice and remedy rely on anecdotal evidence, or data focusing on a particular industry or world region, to determine their plan of action. This limitation renders higher costs, inefficiencies, and, quite possibly, a greater likelihood of harm to individuals. This chapter describes the case selection and data collection methodology for the CHRD. In addition, it outlines descriptive data that highlight the patterns of corporate human rights abuse across the region, sectors, and over time. Finally, the chapter explores the variation in remedy mechanisms found in the database to motivate the analysis in subsequent chapters. The descriptive data shared here uncover important nuances that contribute to our knowledge of corporate human rights abuses and responses to those abuses.

A Focus on Latin America The CHRD contains data on all countries in Latin America from 2000–2014, which includes non-democratic countries and microstates (those with populations under one million). This analysis, however, focuses on only those countries that transitioned to democracy since the so-called “third wave” of democratic transitions or were already democratic.7 Given the relatively 5

6

7

The CHRD uses a victim-centered approach and includes the name of the company that victims use in their claims. While global supply chains are often long and complex, the company listed in the CHRD is the company against which the claim was made. While the database includes information on regional courts and commissions, those are not explicitly included in the analysis here because those bodies only hear claims made against states, not companies. Analyzing whether states are prompted to act, however, to hold corporations accountable as a result of rulings or recommendations by regional bodies would be an important area of inquiry for future research. Those countries included in the analysis for this book are Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, and Uruguay. Microstates were omitted from this analysis because consistent information from other data sources was unavailable.

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recent democratization of many Latin American countries and, thus, variation in institutional strength, the region is an interesting, and important, one in which to assess corporate human rights behavior and access to remedy. This is, in part, because many countries are grappling with the often-competing norms of economic growth and respect for human rights. Latin American countries share a unique historical past. A majority of countries in the region experienced some type of democratic transition since 1980 with Colombia embarking on its transition most recently. At the turn of the century, Latin American citizens across the region began to elect leftist leaders. Party leaders with strong labor support, for example, emerged in Brazil (Lula and later Dilma from the Worker’s Party) and Argentina (Néstor Kirchner and later, Cristina Fernández de Kirchner) while leaders with further leftist policies were elected in Bolivia (Evo Morales) and Venezuela (Hugo Chávez). Such changes – especially with support from labor – might suggest a strengthened environment for respect for human rights in the region. Yet, as the CHRD shows, corporate human rights abuse remained relatively constant as these leaders, on average, also aggressively promoted economic growth. Economically, the region’s institutions were also shaped by neoliberal reforms associated with the “Washington Consensus,” a set of policy recommendations supported by prominent economists and financial institutions, such as the IMF and the World Bank, that were promoted in developing countries, generally, and much of Latin America, in particular. Privatization, liberal trade policies, and increased foreign investment marked the economic agenda of nearly every country in the region. As many institutional or military dictatorships went back to the barracks and democratic leaders assumed power, previously nationalized industries were suddenly for sale. Countries that had been relatively closed, economically, vied for foreign direct investment and capital inflows as they sought to enter the global economic stage. This legacy has important implications for the prospects of improved business conduct around human rights issues in the region. Latin America, in general, has experienced economic growth, but with increased inequality. As discussed in Chapter 6, such inequality has led to widespread social movements that question, if not reject, neoliberalism and its associated free-market reforms (see MacNaughton and Frey 2018; Silva 2009). Latin America is not alone in this trend. In the conclusion of the book, I offer insights into how these findings are generalizable to other regions of the world that are also struggling to address the contestation that arises when the sometimescompeting norms of economic growth and human rights come into play.

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the corporations and human rights database: methodology The CHRD includes information on the type of corporate human rights violation, when and where the violation took place, and whether additional groups were involved in reporting the violation or advocating for remedy (e.g. community members, employees, NGOs, INGOs, government, media, religious organization, or other). The database is the first systematic effort, to my knowledge, to track information on remedy efforts associated with corporate human rights abuse. The CHRD includes judicial activity (whether legal processes were initiated, whether a trial began, dates, and court levels, in addition to the final judgment, if any) and non-judicial activity (what type, which actor initiated the non-judicial activity, who participated, and the ultimate outcome, if any). I provide more detailed explanations of the data later, but first describe the sample of allegations included in the database. The CHRD is comprised of data on violations of corporate human rights abuse across Latin America. The sample of corporate human rights abuse is drawn from an online news archive hosted by the Business and Human Rights Resource Center (BHRRC), which is the most comprehensive collection of newspaper articles and reports on business and human rights (Wright 2008; Bernaz 2016). To date, the BHRRC employs numerous Latin American-based researchers and has over 128,000 links to news articles, press releases, and nonprofit reports on its website. While the CHRD team drew its sample of corporate human rights abuse from the BHRRC, for each event, we scoured numerous publicly available primary and secondary sources to complete a custom coding tool that allowed my team to gather additional data on details of the abuse, the victims, corporate or state responses, and any judicial or non-judicial remedy mechanisms associated with the violation. These data were collected using survey software that allowed for validation and logic checks to minimize user error. Since additional detail was generally available in Spanish- or Portugueselanguage news sources, the team used LexisNexis and Google searches to access this information in local news sources and other global news outlets. The CHRD team referenced approximately 4,000 sources in creating the database. The data analyzed in this book includes allegations of corporate human rights violations that occurred over a fifteen-year period (2000–2014) which total over 130,000 datapoints about 1,300 instances of abuse.8 The database 8

In our codebook, of which an abbreviated version is available in Appendix A, there are approximately 100 questions per allegation that our team answered to gather the most comprehensive data possible.

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starts in 2000 because that is the year the BHRRC began its archive. This timing, however, is beneficial in that it allows us to observe corporate behavior over fifteen years, which covers periods of global economic growth, recession, and recovery. The temporal lag is also by design, as judicial and non-judicial activity is often initiated years after the violation occurs and can take many more years to conclude. Were the data to contain allegations that occurred more recently, the sample would be right-censored; it would appear victims did not have access to remedy mechanisms, where in some cases those processes are just beginning to unfold. The unit of analysis for the CHRD is a corporate abuse allegation, or an instance in which a group or individual makes a claim about a corporate human rights abuse.9 I organized the data in this way to facilitate others’ use of it; scholars or policymakers can aggregate the data by firm, country, or by issue area. Victims may name multiple companies in their grievance (e.g. multiple companies involved in an oil spill); likewise, there are cases in which multiple grievances are made toward one company (e.g. a company has engaged in forced labor and pollutes nearby water sources). For the purposes of this book and the analyses included in Chapters 4 and 5 the unit of analysis is the corporate abuse allegation, as the objective is to explore why some victims have access to remedy mechanisms, while others do not. In Chapter 6, however, I assess the cumulative effect of contestation over time and use country-year as the unit of analysis. The empirical evaluation of access to remedy combines the CHRD with a commercial data source on firms, Orbis,10 and publicly available state-level data. Each of the data sources used is discussed in the respective chapters and further detail is provided in chapter-specific appendices. An abridged codebook for the CHRD is included in Appendix A.

9

10

To determine the named company for each allegation, we adopted a victim-centered approach. If victims named both the subsidiary and the parent company, for example, we would include the subsidiary as the target of the allegation and would note the parent company information in our data collection. In complex supply chains, victims or their advocates sometimes name the supplier and its buyer, in which case we employed the following logic. If the allegation is primarily against the buyer, we listed the buyer. However, if the allegation is against the supplier with multiple buyers implicated, as well, we created an allegation for the supplier and the buyer, to capture different company responses. We also include a variable indicating that such allegations are related to one another. While many databases have information on publicly held firms, Orbis is one of the largest providers of global firm-level data on publicly and privately held firms (see https://orbis.bvdinfo .com). The specific Orbis data used in the analyses is discussed in the appendices.

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Other Data Considerations While the BHRRC is the most comprehensive online archive of corporate human rights abuse, one might be concerned about underreporting or bias. The BHRRC, and the newspapers or organizations upon which it relies, may focus on large, globally recognized brands over smaller firms, and thus underreport violations of less notable firms. Despite my concerns about underreporting and bias, I found that the BHRRC covered more allegations for more firms across more countries than existing secondary literature and existing data sources. While there are other data sources on corporate social responsibility and irresponsibility, the coverage is limited and not nearly as comprehensive as the BHRRC. Proprietary databases, such as Sustainalytics, Asset4, or Kinder, Lydenberg, and Domini (MSCI KLD),11 include aggregate measures about corporate social responsibility and sometimes include information on controversies or concerns. This coverage, relative to the CHRD, is spotty and provides only the most cursory summary, if any, of the event. Other efforts, like the Corporate Human Rights Benchmark, rely primarily on company disclosure and only include fewer than 150 large companies. Importantly, no existing database includes remedy mechanisms for specific instances of abuse. Bias in coverage was also a concern. Early in the project, the team conducted two country-specific comparisons in which researchers recreated the CHRD, but only using domestic news sources. From this process, we estimate the BHRRC includes approximately 85 percent of the cases; that is the CHRD team identified 15 percent more cases than the BHRRC. This differential is likely the result of a historically smaller staff and fewer resources and has likely diminished as the BHRRC team has grown. Of course, some claims never come to light – the proverbial dog that doesn’t bark. No study on criminal activity or corporate wrongdoing can escape the limitation that some claims are never made or never come to light. Crimes for which the victim may face retribution, such as rape or sexual assault cases, are known to be underreported; claims of workplace abuses are also known to be underreported,

11

Kinder, Lydenberg, and Domini (KLD, now the MSCI KLD 400), which originated in 1990, marks one of the earliest efforts to begin quantifying corporate social responsibility and irresponsibility of US-based firms. Since then, other proprietary datasets have improved these efforts. Sustainalytics captures aggregate scores on ESG performance for 11,000 companies across 138 industries. They also include data on “controversial events,” though the coverage is spotty and the descriptions are cursory. Thomson Reuters’ Asset4 data provides the most detailed data but focuses on in-depth measures of a firm’s human rights policies and practices of 6,500 public companies worldwide, rather than firm behavior.

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for fear of retaliation. Even so, the CHRD represents the best possible way to move forward with a more systematic inquiry, into this important topic. It facilitates progress in our understanding of patterns and trends of corporate human rights abuse. In addition, all of the analyses included in the appendices include controls to take into account factors associated with the abuse, when it took place, and the country or industry in which it occurred. In contrast to concerns about underreporting, others may wonder about overreporting of abuses. Some may worry that the violations included in the database are unsubstantiated or false. I offer three points to consider. First, the BHRRC, to avoid libel lawsuits, vets each incident to ensure its validity prior to including it in their online archive. BHRRC employees, located around the globe, rely on reputable news sources with high journalistic integrity. Second, the CHRD team triangulated the violations curated by the BHRRC by searching for additional information on each incident, again, using only reputable news sources (e.g. LexisNexis Academic or non-English sources found through Google searches) and/or legal claims or court decisions that are archived online. Using multiple sources further validates the allegations included in the CHRD. Finally, it is important to underscore that such incidents are not made without risk – human rights advocates and victims are increasingly vulnerable, especially in developing countries. In 2021 alone, more than 358 human rights defenders were murdered globally, 251 of whom were in Latin America (Frontline Defenders 2021). Murders related to environmental and indigenous land rights are particularly acute. Two winners of the prestigious Goldman environmental prize, for example, were murdered in Latin America – Isidro Baldenegro López, a leader of the Tarahumara community in Mexico and Berta Cáceres, a Honduran indigenous leader – despite their peaceful efforts to raise awareness against illegal mining and the hazards of an internationallyfinanced hydroelectric dam, respectively (Lakhani 2018).12 Moreover, Reporters Without Borders highlight the seemingly constant threats, some deadly, journalists face across the globe (Reporters Without Borders 2019). Those who bring such incidents to light, in other words, often take great risks in doing so.

12

More recently, Bruno Pereira, an expert of, and activist for, Brazilian indigenous populations, and Dom Philliips, a British journalist, were murdered in the Brazilian Amazon by illegal poachers. While there was no formal enterprise associated with these murders, their murders brought international attention to the criminal – and commercial – activity in the region (O Globo 2022).

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Abuse

55

29%

Environment

26%

Labor

19%

Development

15%

Health

11% 0%

5%

10% 15% 20% 25% 30% 35%

figure 3.1. Categories of corporate human rights abuse (%)

the chrd: human rights violations and remedy mechanisms The descriptive data here are drawn from the sample used in subsequent chapters; when microstates and non-democratic states are removed, this analysis includes 1,007 allegations of corporate human rights abuse across sixteen countries in Latin America.13 The CHRD focuses on five types of violations: physical integrity abuse, development, environment, health, and labor. Subcategories of abuse are included in Appendix A. Since one violation could possibly fall into numerous categories (e.g. protests over labor abuses and environmental pollution), only one senior coder completed the coding for the primary abuse category. Other team members then collected additional information about each violation. The types of abuse are shown in Figure 3.1 and described in greater depth here: Physical Integrity Abuse. Allegations of physical integrity abuse include the most egregious instances of human rights abuse. There are eight subcategories of abuse: disappearances or abduction, arbitrary detention, death, forced/child labor or human trafficking, forced displacement, rape or sexual abuse, torture, or intimidation or threats to carry out any of these physical integrity violations. Figure 3.1 illustrates that physical integrity abuses account for over one in four violations (29 percent). Environment. The second set of allegations includes those events in which the company is alleged to have polluted or exploited some natural resource. The subcategories for environmental abuses are organized in terms of the resource that was allegedly polluted, including: water contamination; air 13

I also removed those instances in which the enterprise was state-owned or in which the abuse was committed by the state, but on behalf of the corporation. These subsets of data will undoubtedly result in interesting analyses, but are beyond the scope of this project, which seeks to understand victims’ access to remedy for human rights violations conducted by firms.

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contamination; land contamination/erosion; or the general destruction of natural resources. Figure 3.1 shows that environmental violations account for roughly one-quarter of all violations (26 percent). Labor. The third set of allegations designates those violations of specific labor rights, which can be categorized in the following way: prison labor; denial of freedom of association or the right to unionize; denial of freedom of expression (specifically around labor organization); failure to meet basic labor standards; or discrimination. Nearly one in five (19 percent) violations fall into this category. Development. The fourth set of allegations broadly refers to violations of economic or social rights associated with development, including: denial of access to basic needs; destruction of local economies; displacement (without force, but against the will of the individuals); lack of investment in/exploitation of local economies; encroachment or exploitation of indigenous land or property; no right to prior consultation; denial of freedom of expression or denial of freedom of association (not associated with labor-specific issues). Fifteen percent of the violations involve issues specific to development. Health. Finally, the CHRD also includes allegations in which the company is alleged to have negatively impacted the health of individuals and violated their right to health. The subcategories for health include access to medicine or health problems, incorporating those that are attributed to pollution. Approximately, one in ten (11 percent) violations are related to negative health effects of corporate conduct. Figure 3.2 provides a closer look at the physical integrity abuses in the CHRD. Of the 291 violations of physical integrity, the bulk are related to human trafficking, child labor, or forced labor. Many of these cases originate in the agriculture or apparel and textile industries. The Brazilian Ministry of Labor, for example, raided a cattle ranch where it found that 180 workers were kept in slavery, including ten children (Agence France-Presse 2010).14 In 2007, Agrícola Paredes, a vegetable producer in Culiacán, Mexico, was found to have engaged in child labor when an eight-year-old child, David Salgado, who was working for the company, was killed by a company truck at the property (Hawley 2008; La Redacción 2007).15 The next category, death and disappearance, captures those events in which one or more person was killed or “disappeared.” Some cases may involve workplace negligence, in which case an employee is killed due to unsafe working conditions. Many of these violations, however, involve the death or 14 15

CHRD unique ID: 101LMA0010. CHRD unique ID: 101AGP0007.

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Trafficking

40%

Death & Disappearance

36%

Threats

25%

Beating

23%

Displacement

12%

Other

5%

Unlawful Detention

4%

Rape

2%

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

figure 3.2. Subcategories of physical integrity abuse (%). Note that while a violation has only one primary category, as indicated in Figure 3.1, it may fall into more than one subcategory as shown here. Thus, the percentages here exceed 100.

disappearance of individuals who oppose the company’s operations or practices. Montana Exploradora, a subsidiary of the Canadian company Goldcorp and the company that operates the Marlin Mine in Guatemala, was involved in the June 2007 murder and decapitation of Pedro Miguel Cinto, who lived near the mine and participated in protests against the mine.16 Byron Lionel Bámaca Pérez and Marco Tulio Rodríguez, who had been laid off by the mine, disappeared in May 2007 under suspicious circumstances and the company is implicated in their unlikely death (Rodríguez 2008).17 In Honduras, Carlos Roberto Flores, a community leader who opposed the construction of a hydroelectric dam in Gualaco, was killed by armed guards who were hired by Energisa, S.A., the company that operates the dam (Graham 2001).18 In a similar case, Blackfire Exploration, a Canadian company operating a barite mine in Chiapas, Mexico, was involved in the murder of Mariano Abaca, an indigenous leader who opposed the mine 16

17 18

An organization called Breaking the Silence reported that Mr. Cinto’s body was found and when authorities found his head in a neighboring community “they communicated the find through the mining company to the family, an act which was perceived to be a threat and a warning to those who dared to protest the mine” (Maritimes – Guatemala Breaking the Silence Network 2008). CHRD unique ID: 1407MON0008. CHRD unique ID: 2701EGI0001.

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58 100%

7% 11%

90%

17%

80%

33%

9%

70%

32%

3% 12% 0%

19%

60% 50%

10%

40%

21%

30%

51%

45%

20% 30%

10% 0%

Extractives Abuse

Development

Apparel/Textiles

Agriculture Environment

Health

Labor

figure 3.3. Corporate human rights violations, by Industry (%)

(García 2013).19 The remaining categories in Figure 3.2 include threats of physical integrity abuse, beating or torture, forced displacement, unlawful detention and rape. Allegations also vary substantially across industries. While 26 industries and 167 subindustries are included in the CHRD (see Appendix A), the three most common industries are the extractive industry (314 violations or 31 percent), agriculture (207 violations or 21 percent), and apparel and textile (137 violations or 14 percent). Figure 3.3 highlights the types of violations within each industry. In the extractive industry, environmental incidents are the modal category (approximately one in three) followed by nearly equal violations in physical integrity abuse and development (one in five for each). One in five claims is about development, which is indicative of corporate-community conflicts, lack of prior consultation or controversial use of indigenous land or property. In agriculture, the second most common industry in the CHRD, physical integrity is the modal category, comprising 45 percent of the violations. For apparel and textiles, physical integrity abuse comprises 51 percent and of the allegations, the highest of the three industries. Labor abuses make up 33 percent of abuses in apparel and textiles, due to its labor-intensive structure.

The Varieties of Remedy Approach The focus of this book, however, is to explore how contestation shapes governance outcomes for human rights violations. It asks: how do the 19

CHRD unique ID: 1704BLC0002.

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characteristics of contestation (type of abuse, who makes the claim, and to whom) shape governance outcomes (judicial remedy, non-judicial remedy, or nothing at all)? In short, the goal is to explore the variation in victims’ access to remedy. This analysis provides fundamental insights into the processes through which victims of corporate human rights abuse are able to make their grievances, be heard, and at times, have their grievances addressed. While the seemingly ubiquitous nature of allegations may not be surprising, the findings on victims’ access to remedy provide interesting and novel insights into the pathways associated with access to remedy. Today’s guiding framework on business and human rights – the UNGPs – seeks to encourage states and businesses to do what they can to avoid abuse, but when it does occur, remedy must be provided. Remedy falls into two, basic camps: judicial and non-judicial remedy processes. The CHRD includes data on any judicial action taken because of the claim including an investigation initiated by the judicial branch or any trial activity (initiated, for example, but dismissed). For judicial action, the database also captures whether the claim has reached an outcome and the nature of the outcome (e.g. criminal sentence, civil ruling, out-of-court settlements, dismissal).20 For each judicial action, the data include the year in which proceedings began, the last known action, and the jurisdiction in which the court activity took place. The other category of remedy is non-judicial remedy (e.g. roundtables, multistakeholder initiatives, restitution), which holds a prominent place in international business and human rights policy discussions and is a key component of the third pillar of the UNGPs.21 Non-judicial remedy can be initiated by any actor, but the majority are either state-sponsored (e.g. remedy processes established through ombudsperson offices or state administrative offices, for example) or corporate-led (e.g. negotiation tables, formal agreements with community members) efforts. For non-judicial remedy, the database includes the year in which the non-judicial remedy mechanism began, who initiated it, who participated, and outcomes, if any, associated with it (e.g. fines, restitution, apologies, guarantees of non-repetition). Chapters 4 and 5 provide more in-depth and sophisticated analyses of access to the varieties of remedy approaches. Here, I offer some simple, though illuminating, trends from the CHRD about access to remedy across the region. Figure 3.4 illustrates that victims of nearly one-third (31 percent) of

20

21

Note that all countries in Latin America, except Guyana, have civil law systems; this is discussed further in Chapter 4, which focuses on access to judicial remedy. In 2014 the UN’s OHCHR initiated an “Accountability and Remedy Project” (ARP), which aims to strengthen the third pillar and remedy effectiveness. See: https://www.ohchr.org/EN/ Issues/Business/Pages/OHCHRaccountabilityandremedyproject.aspx.

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31%

35%

Judicial Non-judicial Both None

9% 25% figure 3.4. Access to remedy for corporate human rights violations (%)

all corporate human rights abuses have access to some type of judicial proceedings (315 of 1,007 allegations). Judicial action primarily includes civil, constitutional, or criminal proceedings; it also includes administrative proceedings that occur within the judiciary.22 Not all judicial activity, of course, results in a trial. Of the 315 instances of judicial action, just over half (168) went to trial. Of those cases, 110 were heard in civil court, while another 38 became part of a criminal investigation and trial. Two allegations involved both civil and criminal judicial proceedings.23 Non-judicial remedy occurs in 25 percent of allegations of corporate human rights abuse, while 4 percent have both judicial and non-judicial grievance mechanisms. Of the 256 nonjudicial remedy mechanisms in the dataset, approximately 40 percent of them are state-based mechanisms while 30 percent are initiated by corporations.24 These findings alone are quite interesting, as the broad discussion around the governance gap in Chapter 1 would suggest that judicial activity in response to corporate human rights abuse is rare – especially in the Global South. If the assumed status quo is no access, the CHRD tells a different story. These data show that citizens and states are making a concerted effort to hold companies accountable – states, corporations, and civil society are engaging in

22

23

24

Administrative proceedings might include investigations by the court, for example. Note that the analysis in Chapter 4, however, focuses on access to trials and not the broader category of judicial action. Regional courts were included in the description of judicial action but are not analyzed here. This is because victims or their advocates can only make claims against states in regional courts; the grievance usually involves the state not fulfilling its duty to hold corporations to account. Moreover, this book focuses on the vastness of domestic-based efforts seeking to remedy corporate wrongdoing. Future research on regional courts or commissions would be a welcomed addition to the business and human rights scholarship. The remainder of the non-judicial remedies were initiated by other groups, such as community organizations and/or victims, INGOs (e.g. OECD Watch, the Worker Rights Consortium), or international organizations (e.g. the ILO). None of these categories alone was large enough, however, to warrant analysis in subsequent chapters.

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80% 70% 60%

23%

50% 40%

6% 24%

28%

30% 19%

30% 20%

9%

1%

4%

15%

12%

1% 2%

10% 0%

20%

7%

Physical Integrity Development Judicial Action, No Trial

18%

13%

21% 6%

5% Environment Civil Trial

Health Criminal Trial

Labor NJ Remedy

figure 3.5. Access to remedy, by violation type (%). The first column, for example, shows that a total of 49 percent of physical integrity abuses had some type of response; the remainder (51%, not shown) had no response at all.

formal and informal efforts to redress corporate human rights violations. The variation in access to remedy – why some victims have access while others do not – is worth greater inquiry. The rate at which victims have access to remedy varies somewhat by violation type, as shown in Figure 3.5. This figure illustrates whether victims or their families have access to judicial and/or non-judicial remedy and also distinguishes between civil and criminal actions. While the overall rate of judicial action is surprisingly similar across different violation categories, the type of judicial action varies in interesting ways. The state is more likely to initiate criminal action in cases of physical integrity abuse (9 percent, 71 of 291 allegations) with relatively less civil action (4 percent, 26 of 291 allegations). In contrast, the remaining allegations are more often met with civil trial activity, ranging from 13 percent (34 of 260 allegations) of environmental claims to 19 percent of health claims (20 of 108 allegations).25 Interestingly, victims have access to non-judicial remedy mechanisms relatively evenly across violation types (the uppermost portion of each bar in Figure 3.5). The rate at which victims have access to non-judicial remedy mechanisms ranges from

25

Given this variation, all models in Chapters 4 and 5 control for physical integrity abuse.

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20 percent of labor claims (38 of 191 allegations) to 30 percent of environmental claims (79 of 260 allegations). When allegations are advanced to a formal trial, however, the CHRD shows that impunity is not always the case; some corporations or their representatives are held accountable and face costs for wrongdoing. In civil cases, 40 percent of the victims involved were awarded damages (45 of 112 cases). In criminal cases, a guilty verdict was determined at the same rate – 40 percent of the time – though with far fewer trials, overall (17 of 42 cases). Importantly, these are not all concentrated in the same country, further justifying the need for the varieties of remedy approach and a more robust analysis of the factors associated with access to such mechanisms. Taking a closer look at these cases illustrates that such outcomes occur in a variety of countries. Civil damages were awarded in eight countries (Argentina, Brazil, Chile, Colombia, Costa Rica, Honduras, Mexico, and Peru), though the majority (26 claims) are from Argentina. Guilty verdicts in criminal cases are rare, though they are found in five countries (Argentina, Bolivia, Chile, Colombia, and Paraguay), with the bulk, interestingly, from Colombia (11 cases). Admittedly, these numbers are small. However, as outlined earlier in the book, many observers would expect complete impunity and no accountability. The CHRD, in contrast, illustrates that accountability efforts are underway in unexpected contexts and, thus, deserve our attention. Non-judicial remedy is used at a similar frequency across violation types, though the nature of non-judicial remedy can vary substantially, as mentioned earlier. The UNGPs provide a wide-ranging description of non-judicial remedy in an effort to allow victims, states, and corporations the opportunity to address wrongdoing in a way that might best suit their needs. Some nonjudicial remedy mechanisms, for example, may be initiated by administrative branches of the government that seek to address the claim at hand. For example, in Brazil, tax auditors from the Ministry of Labor and Employment (Ministério do Trabalho e Empresas, MTE) and the Public Ministry of Labor (Ministério Público do Trabalho, MPT) and the Federal Police conducted an inspection of DuPont Pioneer’s corn plantations in the Joiviânia municipality in June of 2010 (Hashizume 2013; ComunicarSe 2013).26 An employee had reported his complaint to the Federation of Agricultural Workers in the State of Goiás. At the plantation, government officials found nearly 100 workers in slave-like conditions who were offered work and transported to rural farms with no way of returning to the city

26

CHRD unique ID: 101DUO0009

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(Ply 2010). “These workers slept on the floor [and] were very cold and even hungry. The houses lacked cleanliness and hygiene. The bathrooms were filthy, among other irregularities,” reported one auditor (Ply 2010). In November 2010, DuPont signed a commitment with the Ministry of Labor to modify its behavior and ensure workers were not subjected to substandard conditions (Hashizume 2013; ComunicarSe 2013). The company also agreed to make severance payments and to pay for a return ticket to the city for the workers who wanted to leave (Ply 2010). Even so, in 2013, the Brazilian government added DuPont Pioneer, a publicly traded, US-based producer of hybrid seeds, to its “dirty list” of firms that are alleged to use slave labor.27 Another example of state-led non-judicial remedy comes from Colombia, where Fondo Ganadero de Cordoba S.A. was accused of forcing peasants to sell their land at very low prices, allegedly with the help of paramilitary groups (Verdad Abierta 2014).28 A non-governmental organization, Tierra y Vida, brought this activity to the government’s attention. After an investigation that lasted two years, the Superintendent of Notary and Registry confirmed that the land was acquired under force and decided to revoke property titles on 107 pieces of land that were owned by the Fondo Ganadero (Verdad Abierta 2014). In other instances, state agencies might sanction companies for violating the law. In Argentina, the Ministry of Labor has sanctioned numerous firms for engaging in child labor or unsafe working conditions.29 State agencies can also issue fines, as was the case after an oil spill at the Manguinhos refinery in the Guanabara Bay near Rio de Janeiro, which was owned by Peixoto de Castro. FEEMA (Fundação Estadual de Engenharia do Meio Ambiente in Rio de Janeiro) and the municipal government of Niterói fined the company R$ 3 million and R$ 2 million, respectively, for 30,000 gallons of crude oil that leaked into the bay from a ruptured pipeline.30 These are examples of state-led non-judicial remedy mechanisms. Non-judicial remedy can also be created through non-state mechanisms. Such mechanisms may take a wide variety of forms, including multi27

28 29 30

Firms on the “dirty list” are subsequently unable to obtain finance or credit from federal financial institutions (Banco do Brasil, Caixa Econômica Federal, Banco da Amazônia, Banco do Nordeste, and the Brazilian Development Bank, BNDES) nor rural credit from private banks, as determined by the National Monetary Council (Hashizume 2013). DuPont’s response can be located here: https://reporterbrasil.org.br/2013/07/comunicado-para-a-imprensa/. Though now defunct, more information on Brazil’s “dirty list” and its implications can be found here: www.comunicarseweb.com/biblioteca/el-gobierno-de-brasil-incluye-dupont-enlista-de-trabajo-esclavo. CHRD unique ID: 101FON0017. CHRD unique IDs 101ELT0023; 101ADC0013; 101PIN0010; among others. CHRD unique ID: 1705PEI0014.

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stakeholder initiatives, roundtable dialogues, internal investigations, or other culturally appropriate arrangements (Ruggie 2011b). Non-state-based nonjudicial grievance mechanisms may be comprised of numerous stakeholders. For example, in the Peruvian case of Minera Yanacocha, community members accused Newmont of polluting the environment and negatively affecting their health, due to air and water pollution.31 The Compliance Advisor Ombudsman (CAO) of the World Bank Group oversaw the implementation of a multi-stakeholder roundtable, since the International Finance Corporation (IFC) had invested in the project. The roundtable, created in September 2001, served as an open forum for discussion and conflict resolution between more than fifty public and private stakeholders and the company. Members of the roundtable also oversaw an independent participatory water impact study and led a participatory water-monitoring program (Compliance Advisor Ombudsman 2001). Given the expansive definition of non-judicial remedy, many other examples of non-state-based non-judicial remedy fall into this category, as explored further in Chapter 5. While companies can also initiate a non-judicial remedy, a closer look indicates that the state often plays a supporting role here, too.32 Baterías de El Salvador (BAES), for example, whose operations are in San Juan Opico, resulted in lead and acid contamination of the area around its factory.33 In 2012, the company, in coordination with the government, developed mitigation measures that the company later implemented over the course of 16 weeks under orders by the Ministry of Environment and Natural Resources (MARN 2012). Similarly, the Peruvian company Minera Caudalosa operated a mine that collapsed in June 2010, spilling 25,000 cubic meters of toxic waste – 6.6 million gallons or enough to fill approximately ten Olympic-size swimming pools – that contaminated local communities’ natural water sources.34 While the company sought to resolve the spill, the state pushed the timeline forward and ordered the company to implement a 90-day remediation plan that included activities such as replanting pastures, providing water troughs and fences along riverbanks to prevent livestock from drinking the polluted water,

31 32

33 34

CHRD unique ID: 1704MIY0032. In a white paper prepared for the OHCHR, colleagues and I analyzed data from the CHRD and argue that while the “state [is] instrumental in administering state-based non-judicial remedy mechanisms, it also plays an important role in ensuring non-state-based mechanisms occur and that remedy is provided. Interestingly, the state sometimes has a dual role, as it may be a victim, a co-perpetrator, or both” (Olsen, Parsells-Johnson, Bernal-Bermúdez, Payne, and Westermann-Behaylo 2020, p. 3). CHRD unique ID: 703BEV0001. CHRD unique ID: 1704MCA0021.

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as well as providing medical assistance to the affected population (Salazar 2010). As described further in Chapter 5, many firm-led non-judicial remedy mechanisms are largely ad hoc – very few of the corporate mechanisms are established or part of the firm’s extant policy. Instead, the CHRD shows that firms design remedies in response to specific allegations, the majority of which include financial compensation for affected workers, families, and/or communities or environmental mitigation plans. Access to Remedy and the Question of Accountability There are still lingering questions to this line of inquiry: does access to remedy lead to accountability? And, are some forms of remedy better than others? Why should we study access to remedy when the issue at hand is whether victims’ grievances are addressed? First, assessing accountability efforts is very complex, as many others have noted. Keohane (2002) writes that the “concept of accountability derives from Old French equivalents for competes à rendre, meaning the rendering of accounts” (pp. 1123–1124). With reason, the sanguine reader may wonder how one would ever know if accountability is achieved, as what one person determines to be acceptable may be inadequate to their neighbor. This challenge is well-known in the transitional justice literature in which numerous studies illustrate that assessing accountability, broadly, is particularly challenging because it can mean many things to many people (Leebaw 2008; Mendeloff 2009; Philpott 2015). Accountability, as Keohane notes, “is a matter of degree” (2002, p. 1124). Second, to hold someone or some actor truly to account would require complete information, access to which is complicated by power imbalances that underlie corporate human rights abuses to start. This study addresses corporate human rights abuses that are made public, yet it is likely that additional details of the account are sometimes not shared, especially when victims fear retaliation or ostracization from their communities and companies have incentives to not disclose evidence that may be incriminating. Without knowing all possible details of the event, it is difficult to know what is needed for remediation. As Keohane (2002) rightly highlights, the scenario is rarely ideal, “There is no presumption that the accountability holder knows what information to ask for, that all information desired by the accountability holder will be provided by the power wielder, or that the accountability holder’s sanctions will be effective in changing the power wielder’s behavior. In addition, imposing sanctions is often costly to the accountability holder as well, tending to limit the extent to which they are employed” (p. 1124). This quote illustrates the complexity of accountability and the many ways in which

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such efforts fall short. In sum, lack of information, transparency, effective remedy, and the costs associated with seeking redress all complicate the quest for complete remediation. This analysis recognizes that some accountability efforts (e.g. a guilty verdict or damages) may provide more traditional notions of “accountability” than others (e.g. a settlement). Yet, the focus on access to remedy mechanisms – rather than accountability itself – is an important step in the democratic process; grievances are unlikely to be addressed at all if remedy is inaccessible. And, assessing whose grievances are addressed completely and which organizations are held to complete account are areas of inquiry that require different theories, methods, and data. Instead, the varieties of remedy approach focuses on the potential for contestation to contribute to access to remedy, and possibly, institutional legitimacy. As noted in Chapters 1 and 2, pragmatism and agonism shy away from a focus on outcomes but instead emphasize the importance of deepening our understanding of process or how disputes are heard and addressed. Agonism centers our attention on the significance of claim-making and contestation as part of the democratic process. As such, access to remedy is a recognition that victims’ voices can and must be heard. The context in which those claims are made, however, shapes associated governance efforts, or access to remedy mechanisms. Such efforts, as explored throughout the remainder of the book, are accessed through multiple pathways and may provide would-be violators of human rights a disincentive to commit future abuses – even if damages are rarely awarded and a guilty verdict is scarcely handed down. In short, this exploration has important implications for the lived experiences of many individuals around the globe and, as explored later in the book, the legitimacy of our democratic and capitalistic systems.

conclusion The creation of the Corporations and Human Rights Database facilitates an empirical analysis of the varieties of remedy approaches by exploring systematically collected data; the CHRD makes possible a deeper understanding of the empirical record of corporate human rights abuses and access to remedy mechanisms. Although the database contributes significantly to this area of inquiry, it also has limitations that I hope will spur new areas of research. While this analysis seeks to understand broad trends in allegations of corporate human rights abuse and access to remedy, other scholars might further investigate the mechanisms behind some of the correlations and statistical relationships uncovered in these pages. As Chapter 4 illustrates, for example,

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when victims have the support of local non-governmental organizations, they are more likely to have access to judicial remedy mechanisms. Yet, knowing more about how victims seek such support and what, specifically, NGOs do to help access remedy would be of great interest. Alternatively, one might consider the important role corporate leadership or governance plays in corporate behavior and responses to wrongdoing, yet those data do not exist for many of the firms included in the CHRD. Even with these limitations in mind, the CHRD provides a strong evidence for the need to better understand the variation in access to remedy. Contrary to the narratives often shared in the business and human rights scholarship and policy circles, actors within judicial institutions across Latin America are investigating or hearing cases of corporate human rights abuses. Moreover, numerous stakeholders are joining together to improve victims’ access to nonjudicial remedy mechanisms to address corporate violations of human rights. Yet, we still know very little as to how the characteristics of contestation can shape governance outcomes. In short, what explains victims’ access to remedy mechanisms? The next three chapters include the empirical analysis of the varieties of remedy approaches. The analyses in subsequent chapters combine the CHRD with existing datasets to assess claims made in the literature. In the empirical chapters and related appendices, I describe the additional measurements, operationalizations, and sources used. To address the central questions of this book, I use standard statistical techniques, which are not covered in depth in the text of the chapters but are discussed further in the corresponding appendix for each chapter. Chapters 4 and 5 seek to explain the variation in access to judicial and non-judicial remedies, respectively. Chapter 4 asks: which pathways (Institutional Strength, Corporate Characteristics, and Elevating Voices) facilitate victims’ access to judicial remedy? Chapter 5 explores the same pathways but assesses their utility for victims’ access to non-judicial remedy efforts. Chapter 6 turns to the broader implications of contestation and access to remedy mechanisms. It provides an empirical test of agonism and assesses whether the act of contestation, regardless of the outcome, can provide greater respect for human rights and improved civic engagement in the long term, thereby strengthening democratic processes and practices, as well.

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4 How Contestation Shapes Access to Judicial Remedy Mechanisms

Hoy tenemos la esperanza de que si luchamos unidos algún día las cosas cambian que no maten a nuestros hijos hoy tenemos la esperanza —Que Callen Los Fusiles Today we hope that if we fight together someday things will change so our children aren’t killed today we have hope —“Silence the Rifles,” Song by Etni Torres, a Las Pavas resident

In the early 1980s, peasant farmers lived on an estate called Hacienda de Las Pavas (hereafter, Las Pavas), which is in the South of the Department of Bolivar, approaching the Venezuelan border. In 1983, Jesus Emilio Escobar, a cousin of Pablo Escobar, the Colombian drug lord,1 forcibly removed these communities. In 1997 Escobar abandoned the property and 123 peasant families returned to harvest the land. A year later, they created a cooperative, the Peasant Association of Buenos Aires (Asociación de Campesinos de Buenos Aires, ASOCAB). In 2003, a paramilitary group forced them to leave the area again, and, after several failed attempts to return to their land, ASOCAB filed a request in 2006 before the Colombian Institute of Rural Development (Instituto Colombiano de Desarrollo Rural, INCODER) to have their property rights recognized. They did not make the original claim to INCODER 1

Pablo Escobar gained global infamy when, beginning in 1987 until his death in 1993, he was listed in Forbes’ list of international billionaires (Forbes 1987).

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that they were forcibly removed by the Escobar family. Instead, ASOCAB argued that since the estate had been abandoned, according to the law, the land should be reverted to the state and then titled to the communities (Summermatter 2011; Verdad Abierta 2012; 2013).2 In 2007, Jesus Emilio Escobar reappeared and displaced the communities again. Shortly thereafter, he sold the land to the Consortium Labrador, a palm oil company comprised of Aportes San Isidro S.A. and C.I. Tequendama S.A. (El Espectador 2010, 2012).3 At that time, state authorities did not prevent the sale, even though the land was under dispute. Aportes San Isidro S.A. requested that their private security personnel and the police stop the communities from returning to the land and they were removed, yet again, in 2009 (El Espectador 2012; Retorno a Las Pavas 2012). ASOCAB had been supported since the 1990s by the Program for Development and Peace of the Magdalena Medio (El Programa de Desarrollo y Paz del Magdalena Medio, PDPMM); in 2009 the PDPMM called on the Legal Clinic on Law and Territory from Universidad Javeriana (Clínica Jurídica sobre Derecho y Territorio) to provide the legal representation needed to push INCODER to move forward on the initial 2006 claim, in addition to a 2009 criminal investigation for forced displacement and other crimes committed against the communities by the companies and paramilitary groups. As of this writing, the lands are currently titled to the communities. The Clinic had to file two constitutional claims (tutelas) asking the courts to order INCODER to first make a decision about the reversion of the property to the state and title the lands to ASOCAB, and second, to register the favorable decisions in the property registry. The company appealed INCODER’s decision; the case is pending before the Council of State which may take many years to be resolved. Meanwhile, the victims, supported by the Clinic, pursued criminal action against those involved in the repeated instances of forced displacement. Initially, a prosecutor in Cartagena dismissed the investigation arguing that in the region there were no paramilitary groups and the communities had not been victims of forced displacement (El Espectador 2011). ASOCAB and the Clinic asked for new testimonies to challenge the decision and the preliminary investigation was reopened, involving corporate executives and paramilitaries. A lower court ruled that there was no evidence to convict the defendants of forced displacement. The Clinic appealed the 2 3

CHRD unique ID: 112APO0060 C.I. Tequendama is a subsidiary of the Daabon Group, a Colombian palm oil company that has international recognition for their sustainability efforts. When the police evicted the community in 2009, the incident cost Daabon its contract as the main palm oil supplier for The Body Shop, which is owned by L’Oreal (Vieira 2013). Daabon preferred to pull out of the deal and sold its stake in the consortium to Aportes San Isidro (Forero 2019).

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decision and in February 2022 the appeals court overturned the decision and convicted the defendants of forced displacement. Twenty-nine years after the first forced removal by the Escobar family, the state expropriated the lands and assigned them to the 123 families (El Tiempo 2012). And ten years after that, the state convicted businesspeople and paramilitaries for the forced displacement of communities.4 Why were the members of ASOCAB able to access judicial remedy while many others facing similar challenges and threats never do? Why do some victims have access to remedy in contexts that seem quite unlikely while others do not? This chapter explores variation in access to remedy through the pathways developed in Chapter 2 – Institutional Strength, Corporate Characteristics, and Elevating Voices – and explores them further by drawing out testable hypotheses from the literature. The pathways highlight that domestic efforts to hold corporate actors accountable are more common than the governance gap narrative might have us expect. This does not mean that all is well or that corporate accountability is the norm. Instead, from a policy and practice perspective, the varieties of remedy approach and the findings presented here underscore opportunities to build upon ongoing efforts toward corporate accountability that were previously left unexplored. This research suggests a more nuanced story about the pathways that lead to, or away from, judicial remedy efforts. Using data from the CHRD, this chapter identifies broad trends and provides empirical evidence for the varieties of remedy approach. Victims’ access to judicial remedy, which is a core component of the business and human rights policy landscape, is shaped by the institutional strength of the country in which allegations occur, corporate characteristics, and the involvement of other organizations to elevate victims’ voices. This chapter assesses how the nature of contestation (e.g. who makes the claim, to whom, and under what conditions) shapes whether victims have access to judicial trials. The chapter begins by discussing the well-documented challenges of judicial remedy mechanisms. It then provides descriptive statistics and illustrative examples as to how victims gain access to formal, judicial processes. The findings illustrate that some of the assumptions about judicial remedy and corporate impunity are misguided. As discussed in Chapter 2, the varieties of remedy approach underscores that policy discourse at the global level often overlooks domestic actors’ efforts to access judicial remedy, or at times, it reiterates the notion that domestic actors are weak relative to the corporations 4

Thanks to Laura Bernal-Bermúdez and Catalina Rivera for their generosity in sorting out the details and timeline of this case.

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working within their borders. This chapter tells a different, more nuanced story about corporate accountability efforts through judicial remedy.

judicial remedy mechanisms Judicial remedy includes any formal processes initiated in the court of law.5 These processes originate from the state’s duty to protect its citizens from human rights abuses by third parties, such as business enterprises. This duty is codified in international human rights law (McCorquodale 2009; Ruggie 2009), though its scope has been debated at length (Hsieh 2015; Weissbrodt 2005; Wettstein 2015). The Universal Declaration of Human Rights and its accompanying covenants are – and have been – powerful tools in applying legal and normative pressure to those states found in violation.6 The Declaration outlines that the “human rights and fundamental freedoms,” defined in thirty articles, are binding for all member states and “organs of society.”7 Thus, even if a state has weak domestic regulation, the state still has the responsibility under international customary law to protect human rights – including human rights violations made by non-state actors (e.g. business). In other words, international law and related treaties designate that the advancement and protection of human rights is the exclusive domain of states (Kinley, Nolan, and Zerial 2007) and that the state’s responsibility extends to holding non-state actors to account. The UNGPs echo this claim and declare that states must “prevent, investigate, punish, and redress such abuse through effective policies, legislation, regulation, and adjudication” (Ruggie 2011b, p. 6). Clapham points out numerous challenges to corporate accountability, including the need to establish a corporation’s basic intent necessary to determine certain crimes, but later notes that “there is no convincing conceptual reason why international law should not be extended to cover corporate actors” (2006, p. 547). In brief, today there is scholarly consensus that while the state has an obligation to protect against abuses by state officials, it also has an obligation to protect individuals from actions by non-state actors, such as corporations. 5

6

7

In UN parlance, “Judicial mechanisms apply the laws of the State to enforce public law offenses (e.g. criminal matters) and decide private law claims for remedies by affected individuals and communities (e.g. civil action)” (OHCHR ARP 2018). Of course, not all states have codified these documents; for example, the United States is not a signatory of the International Covenant on Economic, Social, and Cultural Rights. Article 30, states, “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”

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Even so, the business and human rights literature identifies numerous obstacles to accessing judicial remedy for corporate wrongdoing. In the next section, first, I provide a brief primer on the challenge of access to remedy and, second, show that such challenges are not (always) insurmountable. This discussion sets the stage for uncovering pathways to judicial remedy.

the legal challenges to judicial remedy in business and human rights Access to judicial remedy for corporate human rights abuse is contingent upon states’ ability – in jurisdictional terms – to initiate such processes. Broadly speaking, the legal scholarship on business and human rights has focused on two general challenges (the lack of political will to enforce international law and the hurdles associated with a complex corporate structure) and on two specific legal mechanisms (forum non conveniens and the Alien Tort Statute) that complicate holding companies responsible for human rights abuses.8 In brief, the first challenge concerns the fickle political will to enforce states’ ability to hold corporations accountable. Much of the early literature on business and human rights was dominated by legal debates as to whether corporations can or should be held to account legally, focusing on the limitations or opportunities associated with international customary law (Clapham 2000, 2006; Duruigbo 2007). Today’s challenges are about the will to do so. As discussed in Chapter 1, initial attempts to apply international law to private actors were met with considerable opposition even though, as noted above, the state does have an obligation to protect its citizens from human rights abuses by state and non-state actors. Efforts to create a global regulatory regime (i.e. “the Norms”) were thwarted. While Ruggie faced some outspoken critics for abandoning “the Norms” (Mantilla 2009), he found “little movement in the responsibilities corporations may have under international law” (Ruggie 2007, p. 3).9 Payne, Pereira, and Bernal-Bermúdez (2020) echo

8

9

Note that an entire literature exists to document the challenges of legal liability, generally, and liability in the business and human rights context, specifically. Skinner, McCorquodale, and De Schutter (2013) have written about these challenges, including the costs associated with challenging corporations, proving human rights violations took place, temporal challenges, and immunities and non-justiciability doctrines. In 2006, Ruggie wrote “. . . if the Norms merely restate established international legal principles, then they cannot also directly bind business because, with the possible exception of certain war crimes and crimes against humanity, there are no generally accepted international legal principles that do so” (paragraph 60).

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this claim and note that “as a result, little international pressure for corporate accountability exists on states or on economic actors” (p. 31). Even with renewed debates about a business and human rights treaty, it remains unclear whether or how such an effort will have the political and legal support to move forward. While scholars agree that states can hold corporations accountable, the political pushback has cast a shadow of doubt on the application of corporate accountability efforts more generally. The second challenge legal scholars identify is the overall corporate structure, which complicates piercing the so-called corporate veil (Krendt and Krendl 1978). Corporate groups are organized, for a variety of reasons, as a network of distinct legal entities (e.g. subsidiaries, holding companies and their legal liability corporations, joint ventures, or consortia). There are tax and financial benefits to organizing corporate activities in this way, but these structures also allow corporations to protect their assets and avoid liability for wrongdoing: “The doctrine of legal liability holds that, in principle, the shareholders in a business may not be held liable for the debts of that business beyond the level of their investment” (Skinner, McCorquodale, and De Schutter 2013, p. 57). As a result, this structure increases the evidentiary burden to prove direct knowledge or involvement from the parent company or controlling business entity.10 Figure 4.1 illustrates the complex ownership structure of a company, Pluspetrol, which is in the CHRD and discussed later in the chapter. Pluspetrol spans multiple countries – it is registered in Amsterdam and is the ultimate owner of subsidiaries based across Latin America (Ecuador, Mexico, and Peru, among them), Canada, the Netherlands, and the United States. It also owns nine subsidiaries based in the Caymen Islands. Despite such complex structures, Van der Wilt (2013) contends that individual responsibility and corporate liability are linked, as “[t]he corporate agent’s power and knowledge which is required to render an ‘intentional and substantial contribution’ – the preconditions of complicity – has an internal counterpart in a position of control and knowledge within the corporation which is a prerequisite for corporate liability” (p. 72).11 The logic here is that by being

10

11

Note, however, that the International Court of Justice’s ruling in the Barcelona Traction case discusses the notion that there are instances in which corporations’ legal personalities “have not been employed for the sole purposes they were originally intended to serve, [as such], ‘lifting the corporate veil’ or ‘disregarding the legal entity’ has been found justified and equitable in certain circumstances or for certain purposes” (Kiobel, 133 S.Ct. at 1669 (2013) in Skinner, McCorquodale, and De Schutter 2013, p. 57). Van der Wilt (2013) discusses the Nuremberg Tribunal, which tried “any individual member of any group or organization” associated with the Holocaust (Article 9 in Van der Wilt, p. 50). Van

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THE FOREST TRUST THE BAHAMAS

Liquidated in 2018

37,00

25,50%

WILLOW TREE S.à.r.l.

BERNA II SETTLEMENT THE BAHAMAS / NEW ZEALAND

ENDURANCE CORPORATION S.à.r.l.

CENTURY HOLDINGS S.à.r.l.

37,50%

PRC OIL & GAS B.V.

INTERTRUST

PIETER ADRIAAN RUIJTENBERG 15,42%

BOARD OF DIRECTORS

33,71%

33,69%

PLUSPETROL RESOURCES CORPORATION B.V.

25,00%

2,09%

37,50%

37,50%

INVESTEERDERS CORPORATION B.V.

15%

PLUSPETROL ECUADOR B.V.

UNKNOWN OWNER

PETROANDINA RESOURCES CORPORATION N.V.

100%

PLUSPETROL MEXICO B.V.

100%

99,99%

PLUSPETROL CAMISEA

3 SUBSIDIAIRIES BRITISH VIRGIN ISLANDS

100%

26 SUBSIDIARIES IN OTHER COUNTRIES

PLUSPETROL RESOURCES CORPORATION CAYMAN ISLANDS

99,99%

PLUSPETROL LOTE 56

55,00%

PLUSPETROL NORTE S.A.

99,99%

PLUSPETROL PERU CORPORATION S.A.

45,00%

CHINA NATIONAL PETROLEUM CORPORATION

figure 4.1. Complex corporate structure of Pluspetrol (SOMO Fact Sheet, March 2020)

part of the corporation, agents (e.g. managers) are complicit because they have “the power and knowledge” to understand the harms associated with corporate activity. Nijman (2015) makes the claim that non-state actors, particularly corporations, should no longer be “objects” of international law, but “subjects” as the “power and influence of [non-state actors] goes far beyond that of entities to which international law has traditionally accorded object-status” (p. 92). Nijman goes on to argue that corporate actors assume an important der Wilt notes that the tribunal served “as a vehicle to hold individuals criminally responsible for membership of certain organizations” (p. 51). The article is rich with additional examples of global economic actors being held to account for their role in mass atrocities.

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role in creating treaties (e.g. Landmine Ban Treaty; bilateral trade agreements), establishing international institutions, and even have consultative status within the United Nations as parities in the International Center for Settlement of Investment Disputes (Nijman 2015, p. 92). While scholars have weighed in on whether firms or individuals can be held to account, Payne, Pereira, and Bernal-Bermúdez (2020) call this an “interpretative battle” and put the matter to rest by stating that “the distinction between putting employees on trial rather than companies can seem like procedural hairsplitting” (p. 95). They further note that “even when individuals have been held to account. . .they were not acting on their own” (Payne, Pereira, and BernalBermúdez, p. 96). Like I do here, they recognize this debate, but ultimately focus on economic actors (corporations and individuals acting on their behalf ), in general, and the efforts to hold them accountable. Beyond these broad challenges in the business and human rights legal scholarship, two specific legal tools present additional hurdles to holding corporate actors accountable. The first, forum non conveniens, allows any party to challenge the appropriateness of the jurisdiction in which the legal proceedings are taking place. At its best, forum non conveniens ensures that defendants are tried in the jurisdiction that is best suited to hear the case. At its worst, parties may use it to “forum shop” in an effort to obtain a favorable ruling. In the case of Aguinda v. Texaco, Inc., for example, the United States Second Circuit dismissed two class action cases that alleged the oil company polluted water sources in Peru and Ecuador under this doctrine in 2001. The plaintiffs re-filed their case against Chevron (which bought Texaco in 2001) in Ecuadoran courts, which ruled against Chevron and ordered the company to pay over $18 billion to remediate environmental damage in 2011; this was later reduced to $9.5 billion. In turn, Chevron refused to comply with this judgment, and instead argued it was the result of fraud and extortion attempts and questioned the integrity of Ecuadoran courts (Payne 2012).12 This ongoing

12

The plaintiffs in the judgment that condemned Chevron in Ecuador sought to enforce the decision in other jurisdictions where the company operated, such as Argentina, Canada, Brazil, and Colombia. Those effort did not succeed (Apertura 2020). In 2014, the United States District Court in New York and later the United States Court of Appeals for the Second Circuit ruled that the Ecuadorian judgment was, indeed, the product of fraud. Chevron also filed a case before an international arbitration tribunal under the US-Ecuador Bilateral Investment Treaty. In its partial arbitration award in December 2018, the Permanent Court of Arbitration held that Ecuador violated the fair and equitable treatment clause in detriment of Chevron and Texaco by denying access to justice through acts of judicial corruption during the ordinary proceedings in Ecuador. Therefore, the Court concluded that “no part of the said Lago Agrio Judgment should be recognized or enforced by any State with knowledge of the Respondent’s said denial

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legal battle is an extreme example of the many challenges that cases may face, particularly when forum non conveniens is invoked.13 The second challenge relates to changes in the scope of the United States’ Alien Torts Statute (ATS), which has made it more difficult to bring corporate actors to account in that jurisdiction. This historic statute was part of the Judicary Act of 1789, and in the 1980s was adapted to corporate wrongdoing overseas. It was used to bring nearly thirty cases to courts in the United States, though nearly two-thirds of these cases ended in dismissal (Schrempf-Stirling and Wettsetin 2017). However, recent decisions by the United States Supreme Court have substantially reduced the utility of the ATS to adjudicate corporate human rights abuses. In Kiobel v. Royal Dutch Petroleum, the plaintiffs sought damages from Royal Dutch Shell for the company’s alleged involvement, along with the Nigerian military, in crimes against humanity, extrajudicial killings, and other claims. In 2013 the United States Supreme Court interpreted ATS jurisdiction in the Kiobel v. Royal Dutch Petroleum Co case as applying only when the case had a clear and direct connection (“touch and concern”) to the United States. Five years later, the Court further weakened the ATS in the Jesner v. Arab Bank, PLC decision, which stipulates that foreign corporations cannot be named as defendants. In this case, concerns about the separation of powers, namely that Congress, not the Court, is better suited to pass legislation for foreign firms given a Court decision could impact foreign relations. In 2021, the Court further limited its application in its decision not to hear Nestlé vs. Doe and Cargill vs. Doe.14 The plaintiff ’s claim was that the U.S.-based corporation oversaw its foreign operations and thus, could be held accountable even though the injuries (in this case,

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of justice” (Permanent Arbitration Court, 2018, part X, page 2,). Ecuador sought the annulment of the judgment rendered before the Supreme Court of the Netherlands, which upheld the judgment and noted that the decision rendered in Ecuador was contrary to international law (El País 2019; Juiciocrudo.com 2019). In 2020, the District Court of The Hague ruled out another request from Ecuador to set aside the arbitral ruling issued in 2018 (District Court of the Hague 2020). In June 2022, a Netherlands high court dismissed an appeal presented by Ecuador against the District Court decision under the argument that it was adequately reasoned (The Amazon Post 2022). This particular legal battle became personal when Chevron sued the lawyer, Steven Donziger, who originally won the $9.5 billion judgment against Chevron in Ecuador in 2011. In 2014, a judge in the United States overturned the original $9.5 billion judgment, “finding it was secured through bribery, fraud and extortion” (Malo 2021). Donziger was disbarred in New York and served a six-month sentence after being charged criminally in 2019 with contempt for “failing to turn over his computer and other electronic devices” (Malo 2021) during the 2014 Chevron case. Supremecourt.gov/opinions/20pdf/19-416_i4dj.pdf

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child slave labor) were committed and sustained abroad. The Court, in an 8-1 decision, wrote that the headquarter’s engagement amounted to “general corporate activity” and was not sufficiently linked to the wrongdoing at hand. In brief, scholars’ focus on the challenges of holding companies accountable leaves one with the impression that legal efforts are nearly impossible; it is somewhat of a wonder that the CHRD has any judicial proceedings at all. While some studies have focused on domestic efforts to hold companies accountable, they often focus on a single firm (Brenkert 2009; Enneking 2014), corporate accountability efforts for historic crimes through transitional justice mechanisms (Payne, Pereira, and Bernal-Bermúdez 2020; Verbitsky and Bohoslavsky 2016), or infamous cases of corporate human rights abuse and the struggle for legal accountability, such as Union Carbide’s Bhopal disaster in India (Nanda 2020; Trotter, Day and Love 1993), or more recent catastrophes, including the Rana Plaza disaster in Bangladesh (Terwindt et al. 2018), or Vale’s Samarco tailings dam collapse in Brazil (Milanez and Losekann 2016). Using the comprehensive data included in the CHRD, however, this chapter departs from the discussions about challenges and, instead, identifies broad trends that shape victims’ access to judicial trials. The objective is to clarify how the varieties of remedy approach plays out with empirical evidence by assessing how the characteristics of contestation shape access to judicial remedy mechanisms.

variation in access to judicial remedy Nearly one-third of violations in the CHRD are associated with some type of judicial process, though even fewer result in a trial (as discussed in Chapter 3). Note that while the CHRD includes access to any judicial processes of any kind, this chapter seeks to understand when victims’ claims go to trial. While common law systems allow case law to set precedent and give primacy to prior decisions handed down by judges (i.e. the doctrine of judicial precedent), civil systems have their roots in Roman law which, through Spanish and Portuguese influence in Latin America, were institutionalized in the region during colonization. Civil systems rely on core principles that are codified into law, which serve as the primary source for subsequent legal decisions. What is unique about civil law in Latin America, however, is that it can be paired with an inquisitorial system, or one in which the judicial branch is involved in investigating the key facts of the case. In the civil law tradition, judges – not lawyers – ask questions and request evidence. Lawyers present their case based on the evidence the court finds; this places the court in a much more active

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78 16 14 12 10 8

Criminal Trial Civil Trial

6 4 2

20

00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14

0

figure 4.2. Criminal and civil trials over time (count)

role, rather than the impartial referee tasked with deciding between the defendant and plaintiff, as in the common law system.15 Figure 4.2 shows how access to criminal and civil judicial action has varied over time. The CHRD includes 167 trials (125 civil and 42 criminal) that seek to hold corporations accountable in the court of law between 2000–2014. The data show an increase in civil trials and a decrease, over time, of criminal trials. Criminal trials reached their peak in 2007 and experienced a steady decrease thereafter, possibly as state actors were less likely to seek accountability for corporate wrongdoing in the wake of the 2008 global economic crisis. In contrast, civil trials have increased over time, on average, with a maximum of thirteen cases across six different countries in 2009.16

15

16

There is a rich literature about the role judicial leaders and courts play in institutional strengthening and human rights respect in Latin America (Botero, et al. 2022; Brewer-Carías 2009; Dancy and Michel 2016; Helmke and Ríos-Figueroa 2011; Hilbink 2007; Ingram 2015; Ríos-Figueroa 2016). Though not the focus of this particular study, this would be an interesting area of inquiry for future research to explore how these ideas translate to the corporate context. These data also suggest that efforts to improve corporate accountability efforts were gaining momentum even prior to the adoption of the UNGPs in 2011.

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Criminal and civil trials against corporate actors occur around the region. Perhaps surprisingly the, trials for corporate accountability in Figure 4.2 have occurred in all sixteen countries in the sample. While there is clearly variation across countries, the data illustrate that the challenges associated with access to judicial remedy in the corporate context can be overcome in varying contexts. As Figure 4.3 illustrates, all countries in the sample for this study have engaged in judicial efforts to hold corporations accountable – this is no small feat. Out of the sixteen countries in the sample, thirteen of have held civil trials (Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, and Uruguay). Fifteen civil trials were recorded in Mexico, alone, while smaller numbers have also occurred in counties with traditionally weak rule of law, including Ecuador, Guatemala, Honduras, and Nicaragua. Nine of the sixteen countries have criminal trials (Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, El Salvador, Honduras, and Paraguay), though fewer overall. The largest number of judicial efforts are in Argentina, reflecting, in part, that country’s strong legal community and efforts to defend human rights, generally. Given that the governance gap narrative suggests states are weak and lack the political capacity to engage in corporate accountability efforts, the varieties of remedy approach and the CHRD defy these assumptions. What is clear from these data is that formal, judicial processes against corporations occur throughout the region. What is less clear, however, is why the variation in access to judicial remedy exists. Beyond the temporal or geographical trends explored here, what characteristics of the contestation itself shape access to judicial remedy? How does the varieties of remedy approach and its associated pathways help make sense of these interesting trends? The next section draws out hypotheses from the three pathways developed earlier that seek to explain the variation in access to judicial remedy mechanisms.

explaining access to judicial remedy mechanisms Departing from the old narrative about the governance gap, the varieties of remedy approach further develops three pathways to remedy mechanisms, as explored in Chapter 2 – Institutional Strength, Corporate Characteristics, and Elevating Voices. This section draws from the existing literature to identify testable hypotheses (Table 4.1) about the conditions under which victims are more or less likely to access justicial remedy. The chapter ends by exploring how this approach and the findings herein build on and inform scholarship on pragmatism and agonism.

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0 figure 4.3. Civil trials (left) and criminal trials (right) in Latin America

Criminal Trials 10

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table 4.1. Access to judicial remedy: Hypotheses, variables, and expected effect Independent Variables

Hypotheses H 4.1: Strong Institutions ➔ More Access to Judicial Remedy

Rule of Law

Dependent Variables Judicial Remedy

Expected Effect +

H 4.2a: Foreign/Profitable Firm Foreignness Judicial Remedy; Firms ➔ Firm Profits Civil and Less Access to Judicial Remedy Criminal Trials

–

H 4.2b: Large Firms ➔ More Access to Judicial Remedy

Firm Size

Judicial Remedy; Civil and Criminal Trials

+

H 4.3a: NGO Support ➔ More Access to Judicial Remedy

NGO Support

Judicial Remedy; Civil and Criminal Trials

+

H 4.3b: INGO Support ➔ Null Effect or Less Access to Judicial Remedy

INGO Support

Judicial Remedy; Civil and Criminal Trials

– or null

Institutional Strength Both pragmatism and agonism, the theoretical foundation for the varieties of remedy approach, begin with the notion that political behavior and contestation occur within existing, democratic institutions. Given Latin America’s relatively recent and ongoing experiments with democracy, scholars of the region echo the critical importance of establishing a robust rule of law and strong institutions to solidify the democratic future of the region (see Diamond et al., 1999; O’Donnell 2004). More broadly, Popkin (2000) argues that attempts at democracy building are ultimately undermined and incomplete until the rule of law and its associated institutions are well established. This sentiment has been echoed in other canonical works by Linz and Stepan (1996) who note that rule of law is a “virtual prerequisite” to democracy, while O’Donnell (1993) draws our attention to “brown areas” of democracy, where the rule of law is extremely attenuated because of a loose fit between formal rules and actual practices. Though writing about democratic transition and consolidation, this early scholarship on Latin American democracies emphasizes a liberal rule of law approach, which suggests that norms and institutions prevail to hold primarily state actors, but also increasingly non-state actors, accountable for

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wrongdoing. As we saw earlier, it is the state’s responsibility, under international human rights law, to ensure that citizens’ rights are protected through appropriate investigatory, punitive, and remediating mechanisms (Ruggie 2013). On a more fundamental level, a liberal rule of law approach promotes the “universality of law” and suggests that individual rights will only be respected when the rule of law is equally applied to all (Humphrey 2003, p. 498; see also Méndez 1997). Promoting prosecutions and judicial action more generally can “aim to build rule of law through accountability for those complicit in past human rights violations” (Dancy et al. 2019, p. 101). While agonism and pragmatism take existing institutions – with varying quality – for granted, the liberal rule of law approach is driven by a logic of deterrence. In particular, this scholarship suggests that trials will improve human rights protections by deterring would-be rights abusers (Matsueda, Kreager, and Huizinga 2006) and strengthening democratic institutions in the long-term (Dancy et al. 2019). While perpetrators face increased costs to specific types of abuses, the logic follows that they would be less likely to commit those acts in the future. A deterrent effect of strong institutions and rule of law will decrease the likelihood that other potential perpetrators would commit human rights abuses, especially as the severity of the punishment increases (Nagin 1998). Management and business ethics scholars echo this claim and find that the legal environment plays an important role in shaping firm behavior (Olsen 2017; Short and Toffel 2008). In addition, functioning judicial systems that are capable of executing a logic of deterrence would be more likely to provide access to judicial remedy for victims. However, efforts to hold corporations accountable face considerable obstacles, as discussed earlier in the chapter. Indeed, it has been “regarded [as] an almost impenetrable challenge” (Meeran 2013, p. 378). These challenges may be exacerbated in countries where rule of law – on average – tends to be weak. As one legal scholar noted, host countries “have done a notoriously poor job of ensuring that transnational businesses working within their jurisdictions comply with legal standards and human rights” (Skinner 2014, p. 163). Moreover, highly functioning legal systems “are often weakest where they are most needed” (Ruggie 2013). Thus, I offer the following hypothesis about the Institutional Strength pathway, which highlights how the context in which contestation occurs will shape governance outcomes: Hypothesis 4.1: Victims in states with strong (weak) rule of law will be more (less) likely to have access to judicial remedy for corporate human rights abuse.

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Corporate Characteristics While agonism and pragmatism do not theorize about specific corporate characteristics that might increase the likelihood of public engagement and contestation, they acknowledge that who is at the table is a function of power asymmetries. The political economy and management scholarship mirror such claims and underscore that if firms have economic and/or political influence, they will use it to avoid accountability mechanisms and promote a culture of impunity. On this pathway, the logic is that firms’ power and influence can shape political actors’ preferences and facilitate firms’ ability to avoid prosecution or accountability efforts (Clegg, Courpasson, and Phillips 2006; Dörrenbächer and Geppert 2011). First, while influence can come in many forms, the literature highlights the role “foreignness” plays in a firm’s strategy, and as applied here, its vulnerability to trials. This is particularly acute in an era of increased globalization, in which firms can establish subsidiaries offshore that might otherwise be controversial in their home countries (Rudra 2008). As outlined above, it is difficult to hold foreign firms accountable due to jurisdictional issues, which are challenging to overcome when firms are headquartered abroad (McCorquodale 2009). As a result, “[t]he business of litigation, like commerce itself, has become increasingly international” (Bell 2003, p. 4). Firms might also escape accountability efforts through forum shopping (Busch 2007), as discussed earlier. On the other hand, states may hesitate to provide access to remedy to victims of foreign firms because it might signal to other would-be investors that the business environment is unfriendly (Ite 2004; Mosley and Uno 2007). Second, firms with greater profitability, or slack resources, will have more leverage to sway the political environment by engaging in corporate political activity, such as lobbying and strengthening political connections (Hillman 2005; Ridge, Ingram, and Hill 2017) or through direct political contributions (Richter and Werner 2017). More profitable firms may have greater influence, while struggling firms may have few resources or capacity to shape the broader political environment. Moreover, if operations must halt while the judicial investigation or trial is underway, it can impact a firm’s bottom line. One study estimated that a “mining operation with start-up capital expenditures in the $3–5 billion range suffers losses of roughly $2 million per day of delayed production, in net present value terms” (Ruggie 2013, p. 138). Profitable firms, which know the high costs associated with delays, may take steps to thwart judicial action and allocate their resources to avoid formal accountability efforts and associated appeal processes, generally. Finally, while a firm’s profitability or slack may reduce accountability efforts, previous research suggests that a firm’s size can work in the opposite

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direction. Management scholarship uses firm size as a proxy for reputational vulnerability (McWilliams and Siegel 2001). Deitelhoff et al. argue that “[o]perating in a market segment where customers possess awareness of being ranked as the market leader function as enabling conditions for corporate engagement” (2010, 208). Large firms are in the public eye, and as such, want to avoid well-publicized, and often lengthy, trials that might sully their reputation. An oft-cited example is the outcry against Nike in the 1990s after photos emerged illustrating that the popular athletic brand used child labor in its supply chain (Doorey 2011). While large, consumer-facing businesses are especially prone to public condemnation, their suppliers can also face scrutiny. For example, the Rana Plaza building collapse in Bangladesh led to the deaths of nearly 1,300 workers. After this disaster, European and American brands sought to work with Bangladeshi partners to ensure a more responsible supply chain, but this was largely due to pressure from Western stakeholders, including consumers (Reinecke and Donaghey 2015) and investors (Donaghey and Reinecke 2018; Ahlquist and Mosley 2021). Suddenly, prominent suppliers in Bangladesh were in the spotlight and needed to make quick changes to assure Western brands that their facilitates were safe. In sum, the varieties of remedy approach, drawing from the political economy and management scholarship, demonstrates how the Corporate Characteristics pathway shapes victims’ access to judicial remedy for corporate human rights abuse: Hypothesis 4.2a: Victims of corporate human rights abuse by foreign firms or profitable firms are less likely to have access to judicial remedy. Hypothesis 4.2b: Victims of corporate human rights abuse by large firms are more likely to have access to judicial remedy, as those firms face reputational vulnerability.

Elevating Voices The previous two pathways suggest that the context in which contestation occurs (e.g. institutional strength or rule of law) and corporate characteristics of the firm in question (e.g. foreignness, profitability, and size) will shape governance outcomes. Yet, the varieties of remedy approach reminds us that who is making these claims may affect access to judicial remedy, as well. The UNGPs underscore the important role that civil society plays in ensuring victims have access to remedy (UNGP 2011). The literature on civil society and social movements illustrates the vital role such advocates have in increasing awareness about human rights issues on the international stage and for domestic audiences, as well (Korey 1999; Della Porta and Diani 1999/2006/

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2020; Giugni, McAdam, and Tilly 1999; Tarrow 1994). While this literature is relatively indifferent as to the role domestic or international NGOs play, the varieties of remedy approach distinguishes the work of local actors, as reflexive innovation requires local knowledge to improve access to remedy. Civil society activism is on the rise. Soule (2009) documents that in recent decades the world has seen a proliferation in anti-corporate protest (pp. 7–9), with activists increasingly targeting corporations because of their frustration about the lack of corporate accountability. INGOs or NGOs, she argues, perceive corporations as more effective targets for change, in part, because of their operation in areas in which the state is unwilling or unable to take action. As King (2008, 2011) notes, opportunities for collective action are particularly important for social movements attempting to affect corporate behavior because “non-traditional stakeholders” can seldom affect corporate behavior without direct access to corporate resources that give them leverage over policy (Davis and Thompson 1994). Such efforts have moved beyond traditional protests or boycotts. Today, social media campaigns have highlighted new ways in which NGOs can pressure states or corporations into action, including those in the CHRD. At the beginning of this chapter, the verse of the song by members of Las Pavas is part of a social media campaign to highlight the abuses that Colombian communities have faced living in the midst of civil conflict. Fundación Chasquis, an NGO that focuses on communication strategies for communities to help facilitate a more just society, dedicates a portion of their website to the social media campaign, complete with the hashtag #QueCallenLosFusiles (Fundación Chasquis 2020). The CHRD includes whether international or domestic NGOs are substantively involved in helping advocates beyond simply reporting the claim. Such organizations are often on the front lines in elevating victims’ voices and seeking remedy. These organizations seek to play a role in advocating for “more ethical and socially responsible business practices [which] is beginning to generate substantial changes in corporate management, strategy, and governance” (Doh and Guay 2006, p. 52). This scholarship suggests that such involvement is often necessary – as those organizations have relatively greater resources and institutional access than do victims of corporate human rights abuse – to highlight wrongdoing, boycott, or launch a campaign that sheds light on such atrocities. Local NGOs also provide legal expertise (Epp 2010). Many Latin American countries have a strong legal tradition, developed largely in the postdeomcratic transition era, with a dense network of lawyers who can provide local knowledge and legal expertise or much-needed financial resources to victims who would otherwise be unable to pursue judicial remedy (Clarke

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1998; López and Jiménez 2017). In Argentina, the Centro de Estudios Legales y Sociales (CELS) formed in 1979 and has served as a data gathering, policy advocacy, and direct services organization that has sought to expand and fortify respect for human rights. In Colombia, Dejusticia is a more recent example of an influential human rights advocacy organization that emerged as conversations about prospects for peace and increased respect for human rights continue to develop. Organizations like Conectas and Homa in Brazil, PODER in Mexico, Londres 38 in Chile, and Andhes in Argentina, among others, have used legal advocacy to strengthen corporate accountability for human rights abuses across a wide range of issues. These organizations use a variety of advocacy tools to seek to hold corporate actors accountable, to eliminate forced and child labor, and to highlight the work of environmental activists, who often seek to keep large, rural infrastructure projects or mineral exploration at bay, among many other areas in which abuses emerge. NGO activism that targets corporations can spread to other institutional contexts, as well. Epp (1998), for example, writes about the “democratization of courts” that has been driven by the resources and technical assistance of civil society organizations, broadly. Moreover, Peruzzotti and Smulovitz’s (2006) describe how the “public interest law movement” (p. 21) was driven by a network of NGOs to advance human rights. Notably, such activism can catalyze other governmental bodies to act on the issue of human rights by exposing and denouncing wrongdoing (including media coverage), which increases the reputational costs for firms and underscores the threat of being taken to court. Similarly, courts can put and keep issues on the political agenda, which may increase the likelihood others will act on the matter (Rosenberg 2008). González-Ocantos (2016) writes about a more prominent role that civil society can play in this process and argues that “litigants manage to shape the legal preferences of judicial actors in their favor, infusing them with new values relative to their professional obligations under international law” (p. 14). Increased accountability, specifically the use of the legal system by NGOs and other civil society organizations, thus creates a basis for social control that triggers governmental accountability in favor of human rights. This research suggests that understanding the support structure around access to courts is an important component to explaining the variation at hand. The literature also suggests INGOs can be instrumental in bringing awareness to wrongdoing, especially in contexts in which the state is unwilling to come to terms with abuses occurring within its borders (Keck and Sikkink 1998). There is a relatively robust literature that illustrates the effectiveness INGOs can have by engaging in “naming and shaming” to spur on various changes, including economic sanctions (Murdie and Peksen 2013),

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humanitarian military intervention (Murdie and Peksen 2014), and respect for human rights in autocratic regimes (Hendrix and Wong 2013). The literature that explores INGOs, however, is almost entirely focused on their ability to alter state behavior toward other states (e.g. aid, trade, and security) or toward their own citizens (e.g. reduced state repression). This literature does not investigate how INGOs work in raising awareness about corporate human rights abuses would either alter a corporation’s behavior or the propensity state actors might have to hold corporations to account. Agonistic scholarship puts an emphasis on local knowledge and the ability to engage in reflexive innovation. There are reasons to think INGOs would not be particularly well-suited in this regard. Some scholars highlight how INGOs, like many other organizational types (e.g. firms or interest groups), need to illustrate their efficacy and credibility to donors to ensure they have sufficient operating capital (Reimann 2006; Hopgood 2013). Internal constraints may also limit their ability to gain local knowledge. Pallas et al. (2015) identify three types of internal legitimacy standards for INGOs – democratic, moral, and technical – and find that very few INGOs employ standards that encourage greater representation by stakeholders and/or their target beneficiaries (p. 1265). Together, these factors – a historic focus on the state, funding constraints, or the inner workings of INGO activities – limit their ability to engage with local stakeholders. Thus, in line with the varieties of remedy approach, we would not expect INGOs to improve victims access to judicial remedy. Hypothesis 4.3a: Victims are more likely to have access to judicial remedy mechanisms when supported by NGOs. Hypothesis 4.3b: Victims are less likely to have access to judicial remedy mechanisms when supported by INGOs.

variables of interest Below, I provide a brief discussion of the data used in the analysis to assess the hypotheses developed above. Additional information about the data sources, descriptive statistics, and the model specification can be found in Appendix B. Dependent Variables The aim of this chapter is to better understand the contours of the pathways that facilitate victims’ access to judicial remedy mechanisms. In general terms, the analysis seeks to understand when victims’ claims will be heard in the

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court of law or when a Trial is initiated. Yet, what prompts the state to begin criminal investigations through a Criminal Trial might be different than what facilitates a victims’ access to a Civil Trial. These disaggregated measures are also analyzed in this chapter. Criminal trials are initiated by the government, on behalf of the injured party. Outcomes of criminal proceedings often include prison sentences, fines, and reparations for victims. Civil trials involve an individual or group seeking damages from the defendant. Outcomes of civil proceedings have the objective of compensating the injured party for the harm they suffered and identifying responsibility for the wrongdoing of the defendant, if warranted. Latin American states also include specific judicial remedy for the protection of rights outlined in the constitution (often known as amparo or tutela), which are similar to injunctions in the U.S. legal system. Brewer-Carias (2009) argues that the amparo is “one of [the] most important constitutional features regarding the protection of human rights” (p. 4). It facilitates protecting not just civil and political rights, but also social, cultural, economic and environmental rights that are included in many constitutions across the region; this contrasts with the U.S. Bill of Rights, which includes primarily civil rights (Brewer-Carias 2009).17 While this chapter focuses on access to trials, the long-term effects of trials for corporate wrongdoing are explored in Chapter 6. The findings in that chapter add further nuance to the varieties of remedy approach, as it provides clarity to the types of institutional designs that might facilitate improved democratic practices, as theorized by agonistic scholars. Independent Variables The first pathway, Institutional Strength, highlights that the rule of law is foundational to victims’ access to remedy. Scholars of agonism and pragmatism assume the existence of functioning institutions. However, this analysis explores the variation in rule of law as a measure of institutional strength and capacity, as a robust literature illustrates the importance of Rule of Law for state-sponsored abuses of human rights (Brewer-Carías 2009; Keith 2002; Lutz and Sikkink 2000; Olsen, Payne, and Reiter 2010). Thus, we would also expect 17

Amparo/tutela as initially conceived was only meant to be against the state. However, through the jurisprudence of Constitutional Courts at the bequest of the victims, these actions can be directed toward corporations if the victims can prove that they are in a position of subordination or vulnerability. Such cases mostly include claims against the corporations and state institutions at the same time. These claims usually do not end in compensation (this is extraordinary), but they do hold corporations accountable because a) they declare that the corporation violated fundamental rights, and b) they order entities to stop or start behaviors to protect fundamental rights (personal communication with Laura Bernal-Bermúdez).

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it to play a role in ensuring victims have access to judicial remedy mechanisms. For this hypothesis, I use the Freedom House measure of rule of law, which indicates whether there is an independent judiciary and equal treatment of the population on a scale of zero (weak) to sixteen (strong) (Freedom House 2019). Freedom House measures rule of law by assessing whether the judiciary is free from interference from the executive branch or other political, economic, or religious influences, and whether due process prevails in civil and criminal matters (e.g. whether defendants’ rights, including the presumption of innocence until proven guilty, are protected). This measure also captures whether citizens enjoy protection from the illegitimate use of physical force, and whether the laws, policies, and practices in a given country guarantee equal treatment of various segments of the population. The second pathway, Corporate Characteristics, draws from the notion that power asymmetries can influence access to governance mechanisms. The varieties of remedy approach suggests that corporate foreignness and profitability will reduce victims’ access to remedy, as corporations wield their influence to avoid accountability and as state leaders’ look askance at human rights abuses when economic interests are at stake. The literature, however, suggests that firm size will have the opposite effect, as larger firms have greater reputational vulnerability and thus, may be more likely to face accountability efforts. Data for this set of hypotheses is drawn from a propriety dataset, Orbis, which has the most comprehensive coverage of firm-level data around the world (see additional details in Appendix B). The analysis uses three key variables from Orbis: Foreign, or whether the company’s headquarters are located in a country other than the one in which the violation occurred; Profits, defined as the annual profit margin for the firm; and Size, or the logged assets of the firm, which is a commonly used approximation for firm size (Seaborn, Olsen, and Howell 2018). The final set of hypotheses explore the role civil society organizations may have in victims’ access to remedy by Elevating Voices. Data from the CHRD indicate whether domestic or international non-governmental organizations supported victims in a more substantial fashion (NGO Support or INGO Support) that goes beyond simply reporting an allegation. The data distinguish between the role INGOs or NGOs play in aiding victims through a close analysis of the secondary sources of the violation. The varieties of remedy approach emphasizes the crucial role local actors may play in elevating victims’ voices; thus, victims with support from domestic NGOs will be more likely to have access to formal, judicial processes, while INGO support will have a null or negative effect. Specific examples are discussed in the findings section below.

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Control Variables A key concern when examining and interpreting variation in access to remedy is that differences besides those explored above may contribute to the observed outcome. For this reason, I control for a number of factors identified in the prior literature as being relevant to access to remedy. Each model includes annual data for the level of democracy (Polity2 from the Polity IV project); GDP growth (World Development Indicators); GDP per capita (World Development Indicators); and state respect for human rights (Political Terror Scale; see Gibney, et al. 2021). NGOs and INGOs can also be involved to a lesser extent (i.e. simply reporting the allegation), thus each model includes NGO Reporting and INGO Reporting of the allegation. Industry effects may also shape access to remedy, especially if a country is particularly reliant on specific industries for economic growth. Thus, each model includes data on oil rents as a percentage of GDP, mineral rents as a percentage of GDP, and the percentage of exports from manufacturing (all are drawn from the World Development Indicators). Industry-specific (SIC codes) indicators are included in each model, as well. At the firm-level, each model includes controls for a firm’s prior human rights abuses (CHRD); whether the allegation is especially severe or involves a physical integrity abuse (CHRD); and whether that particular allegation was addressed with any non-judicial remedy efforts (CHRD). To avoid overreliance on a single year of observations, the entire sample period is used with year fixed effects and robust standard errors.18 Data sources, measurement, justification, and model specifications are discussed more thoroughly in Appendix B.

findings: pathways to judicial remedy mechanisms How do the pathways explored above, which comprise the nature of contestation, shape governance outcomes, or access to judicial remedy mechanisms? The empirical results illustrate that some factors behave as expected (e.g. rule of law increases the likelihood victims will have access to remedy). That is, some pathways are relatively smooth and worn. Others, however, are narrow and rugged. They provide a more nuanced story as to the circumstances or scope conditions under which victims have access to judicial remedy mechanisms. Yet, with time and increased usage, they too could become well worn. The varieties of remedy approach allows for multiple pathways that could lead to, or away from, formal remedy mechanisms. Each of the pathways are expanded 18

For each model, the Hausman test was not significant, thus indicating that a fixed-effects model is appropriate to analyze these data.

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figure 4.4. Model visualization, varieties of remedy pathways for judicial remedy19

upon here, but in brief, strong rule of law improves access to judicial remedy for corporate human rights abuses. Foreign and profitable firms are more likely to avoid accountability efforts, while victims of abuse by large firms are slightly more likely to find their day in court. Allegations against large, foreign firms, however, are more likely to be pursued by state actors through criminal proceedings. While the broader literature suggests that corporate power means impunity, these findings suggest otherwise; victims of corporate human rights abuses – in specific circumstances – do have access to judicial remedy mechanisms. Finally, the varieties of remedy approach notes the importance of local actors in facilitating experimentation and reflexive innovation. As expected, the data show that NGOs elevate victims’ voices and have a positive effect on the likelihood their claims are heard through formal, judicial processes. INGO involvement, however, decreases those chances. Figure 4.4 illustrates the regression coefficients for the models associated with each pathway included in Appendix B; the dot represents the size and direction (positive 19

There are a few relevant notes about this figure. First, the standard errors used for this dot and whisker plot may be different from those used to determine statistical significance; please see tables in Appendix 4. Second, the estimated coefficients may seem small for some variables. The relationship between profit margin and trials, for example, may seem far too small to be of merit. However, the estimated coefficients are statistically significant for both Trials and Criminal Trials, meaning that we can reject the null hypothesis of no relationship at or above the 99 percent confidence level. Moreover, despite their small size, these values are meaningful – the most profitable firms are 12 percent less likely to face trial.

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figure 4.5. Marginal effect, rule of law

or negative) of the coefficient and the lines are the standard errors. Where the lines do not touch zero, that variable is statistically significant. Institutional Strength The first pathway highlights the importance of strong, independent political institutions in holding firms accountable. As the varieties of remedy approach suggests, allegations in states with strong rule of law will more likely be met with judicial remedy (H 4.1). The results in Table 1 (Models 1–3) in Appendix B show that stronger rule of law is correlated with an increased likelihood of trials. As Figure 4.5 illustrates, victims are approximately 60 percent more likely – a large effect – to have access to a trial in states with strong rule of law than do those victims in countries with weak rule of law. Countries like Chile, Uruguay, Costa Rica, and Argentina top the charts in rule of law measures for the Latin American region. The rule of law measure, as expected, is positive and significant and precisely estimated for trials, civil trials, and criminal trials. While rule of law is statistically associated with a greater likelihood of having one’s claim heard in court, this does not mean that all claims are heard in court. Of the sixty-four claims in Chile, for example, only thirteen went to trial. Likewise, of the nineteen claims in Costa Rica, only five went to trial. That is, in those countries with high functioning judiciaries, only about

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25 percent of the claims go to trial, on average. In those countries with the weakest rule of law, hardly any victims had access to judicial remedy. For example, in Ecuador and Guatemala only two of fifty-five and fifty-six cases, respectively, were heard in court – a mere three percent of cases. While other factors certainly come into play as to why some cases move forward while others do not – indeed, that is why pathways other than rule of law come to the fore in both the literature and the data – this finding highlights the broad trend, as the literature indicates, that victims are more likely to have access to judicial remedy in those countries with strong rule of law. Corporate Characteristics Next, the corporate characteristics pathway suggests that some firms are more likely to end up in court than others. Some of the findings follow conventional wisdom while other results challenge assumptions about corporate impunity. Firm Headquarters Foreign firms are less likely to be faced with trial activity, which supports the varieties of remedy approach and H 4.2a above. These findings reaffirm that power imbalances do play a role in contestation and access to governance outcomes. Jurisdictional challenges to holding foreign corporate actors accountable are difficult to overcome. Figure 4.6 shows that foreignness .5

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decreases the likelihood a firm will face trial activity by approximately 22 percent. Foreign status, on average, allows firms to avoid formal accountability efforts (Table 2A in Appendix B). In 2002, for example, security guards at the Standard Fruit Company, a subsidiary of Dole Foods Company headquartered in the United States, shot and killed three people and wounded two others who claimed land ownership rights in Balfate, Honduras, a community on the Atlantic coast (BBC Mundo 2002).20 Standard Fruit Company has been growing bananas and other fruits in the area since the early 1900s and has experienced ongoing land conflicts with the local communities. In 2003, the director of the National Agrarian Institute (Instituto Nacional Agrario, INA), Erasmo Portillo, reported the Honduran government would earmark 35 million lempiras (approximately $1.4 million) for the resolution of land disputes across the country (Immigration and Refugee Board of Canada 2003). Country reports indicate that more than 200,000 Honduran peasant families have no land while agriculture companies like Standard Fruit Company hold much of the country’s most fertile land (Weekly News Update on the Americas 2002). Even so, the victims’ families had no access to formal remedy for their deaths; no charges were brought against Standard Fruit Company or its parent company Dole Foods for these abuses. Foreignness also comes into play in complex supply chains. Firms that buy from suppliers located abroad are unlikely to be held to account. For example, Warner Brothers Entertainment, Inc. contracted Rubie’s Costume Company in Hidalgo, Mexico, which at the time was the world’s largest costume maker.21 In 2005, employees at Rubie’s protested child labor violations (ten of sixty-five workers were under the age of sixteen), unsafe and unjust working conditions, and the company’s violations of an existing collective bargaining agreement. The company was also accused of forced pregnancy testing, unsanitary working conditions, and frequent and unaddressed workplace accidents (LabourStart 2005). Workers made their demands known to Rubie’s management, who denied the allegations. In response, the company illegally locked out the employees for protesting these abuses. Warner Bros. Entertainment denied that any of its licensed products were produced at the Rubie’s factory, while also stating that “the Rubie’s factory meets or exceeds local laws governing labor and working conditions” (Goldsmith 2005). In March 2006, the factory closed (USLeap.org 2006). These claims were never heard in a court of law. 20 21

CHRD unique ID: 101STD0004. CHRD unique ID: 201WAR0023. See a similar allegation against Mattel for their association with the same supplier (Malkin 2005).

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Profitable Firms The varieties of remedy approach explains how the profitability of a firm contributes to power asymmetries, and thus, a firm’s ability to avoid accountability efforts. The analysis supports the literature and hypothesis H4.2a; profitable firms are less likely to be held to account for human rights violations (Table 2A in Appendix B). Firms that are profitable might be able to use slack resources to stave off prosecution. Pluspetrol Norte, a subsidiary of the Argentine oil company, Pluspetrol S.A., operates throughout Peru and has had multiple oil spills in the region. The company caused an oil spill of approximately 4,000 barrels of oil from a barge in the Marañon River22 but has never faced formal accountability for the environmental damage it caused,23 while annual profit margins hover around 30 percent.24 Vale, a Brazilian multinational firm involved in mining and logistics, was accused by a former employee of taping workers’ phones to find out who was leaking information 22 23

24

CHRD unique ID: 1705PNO0012 This is also part of a much broader dispute, which is about whether Pluspetrol is responsible for decontaminating areas impacted by oil activity to date, even if such spills occurred prior to Pluspetrol’s operations in the area. There is a current appeal with Peru’s Supreme Court of Justice regarding remediation at Lot 1AB because the company is challenging the resolution of the Agency for Environmental Assessment and Supervision (Organismo de Evaluación y Fiscalización Ambiental, OEFA), which sanctioned Pluspetrol for not including 1,199 additional contaminated sites in its abandonment plan (SOMO 2000). Pluspetrol originally appealed with the Environmental Inspection Court, which upheld OEFA’s ruling; the company then asked for precautionary measures to remove the legal effect of OEFA’s ruling, but on June 10, 2019 the Supreme Court denied Pluspetrol’s request. In January 2021, the OEFA filed a request with the 37th Civil Court of the Superior Court of Justice of Lima to seize nearly US$ 380 million from the company as a precautionary measure, which was later followed by a request in March 2021 asking for the seizure request to be processed swiftly to prevent the company from evading its financial responsibilities (Gestión 2021). In an interesting turn of events, the company, which has been operating in Peru for twenty years, announced in December 2020 that it would abandon the project three years prior to its contractual obligation and liquidate its Peruvian-based subsidiary, Pluspetrol Norte (La República April 27, 2021). In April 2021, the company and the state announced they will engage in international arbitration through the International Chamber of Commerce because the State is withholding approval of the company’s “Abandonment Plan” while the State wants the company to fulfill its obligations (Agencia EFE April 28, 2021). Perupetro, the state-owned company in charge of administering the country’s oil contracts, also requested a precautionary measure before the civil-commercial jurisdiction of Peru, in order to maintain the validity of the contract until the arbitration process is resolved (Observatorio Petrolero 2021). Simultaneously, the Netherlands – where Pluspetrol, which was founded in Argentina, is now registered – agreed to hear a grievance filed by indigenous communities through the Dutch National Contact Point (NCP), which is the body that ensures company’s compliance with the OECD Guidelines for Multinational Enterprises (El Comercio April 20, 2021; see also Indigenous Federations vs. Pluspetrol 2021). This is an important advancement: “For the first time, the Dutch NCP has declared admissible a complaint that . . . addresses the behavior of multinationals with regard to the environment and human rights” (OECD Watch April 21, 2021).

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figure 4.7. Marginal effect, firm profit margin

to journalists and infiltrating social and environmental movements, violating their freedom of association and right to privacy (Jardim 2013).25 Vale’s annual profit margin around the time of the allegation was around 20 percent. Firms with excess resources might also be able to increase their lobbying efforts to lessen the political will for corporate accountability. Figure 4.7 illustrates that a firm’s profit margin matters. Profitable firms are nearly 12 percent less likely to face trial, on average, when compared to their less profitable counterparts. Thus far, the findings support the varieties of remedy approach – money talks and foreignness matters in shaping power asymmetries that influence governance outcomes. However, this approach also allows for a multiplicity of pathways. Thus, this analysis shows that profit matters differently across firms. When foreign firms are also profitable, they are even less likely to face formal accountability. Yet, profitable domestic firms are actually more likely to face civil trials than their less profitable counterparts (Figure 4.8, also see Table 2B in Appendix B).26 This finding challenges the broad notion that profitability always means a reduced access to justice for victims. Instead, we see that profitable firms that are domiciled locally are about 15 percent more likely to be defendants in a civil trial than their less profitable, domestic counterparts. 25 26

CHRD unique ID: 1704VAL0001. Note that this result is less-precisely estimated as indicated by the larger standard errors (see Table 2B, Model 3 in Appendix B).

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figure 4.8. Marginal effects of profit margin  foreignness on civil trial activity

Alternatively, the profit margin for foreign firms or domestic firms has no effect on the likelihood of a criminal trial. For example, in Argentina, a case was filed against Ledesma (a sugar mill owned by Blaquier with headquarters in Buenos Aires) denouncing environmental pollution that caused lung disease and other health issues among the workers and the population (Meyer 2007).27 The case was initially filed by Olga Arédez, a human rights advocate whose husband disappeared during the military dictatorship.28 Ms. Arédez died of cancer shortly after she filed her claim. The lawyers for the Committee for the Defense of Health, Ethics, and Human Rights (Comité para la Defensa de la Salud, la Etica y los Derechos Humanos, CODESEDH), a local NGO, argued on behalf of Ms. Arédez that her cancer was caused by bagasse, which is a pulpy residue that remains after the juice is extracted from the sugar cane and can pollute the air.29 After

27 28

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CHRD unique ID: 101LDE0033 Luis Arédez, Ms. Arédez’s husband, was a doctor and local politician. Arédez was elected mayor of Libertador in 1973. Though he only served for eight months, he supported labor unions, sought back taxes from Ledesma, and also wanted the company to begin paying property taxes to the municipality. He was captured during the “apagón de Ledesma” (the Ledesma blackout) in 1976 but released by the military. He was later captured for a second time and was disappeared in May 1977. The disease, which is well documented, is called bagassosis. It is a lung disease caused by exposure to bagasse.

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several unsuccessful attempts in lower courts in the Jujuy Province, the case eventually reached the Argentine Supreme Court where it was ultimately, and unfortunately, dismissed (Meyer 2007, 2008; see also Bio Diversidad 2006). Ledesma reported profits of about 10 percent in 2005. In another instance, the courts ruled in favor of a victim of discrimination by a profitable domestic subsidiary.30 In May 2005, Roberto Mendoza, a former employee of Coca-Cola FEMSA, S.A.B. de C.V., filed the first sexual orientation discrimination claim in Mexico (Consejo Nacional para Prevenir Discriminación, CONAPRED, September 2005). In 2003, Mr. Mendoza was appointed head of the Latin American Division for procurement, where he generated savings of more than $40 million for the company (Olivares and Cruz 2006). In September 2004, after disclosing his relationship with his same-sex partner to the company, he was demoted, and after facing workplace harassment and discrimination, he was fired in October 2004 (Gómez Castillo 2006). Mr. Mendoza filed a complaint before the National Council for the Prevention of Discrimination which found that an act of discrimination had taken place. However, Coca-Cola FEMSA refused to abide with the recommendations of the Council to engage in a conciliatory process (Mendoza 2006). Mr. Mendoza then filed a civil action against the company in Mexico City’s 30th Civil Court, in which he asked for compensation for moral damages caused by the company (OutRight Action International 2006). Mexico City’s Human Rights Commission (Comisión de Derechos Humanos del Distrito Federal) supported Mr. Mendoza’s claims and noted that his was the first case in Mexico where an employee had publicly complained about discrimination on the basis of sexual orientation (CONAPRED 2005). The company responded to the allegation stating that it respected diversity in all its forms and that its code of ethics prohibits discriminatory acts. It categorically rejected Mr. Mendoza’s accusations. They claimed that there was a mutual agreement to end the employment contract and that Mr. Mendoza was indemnified in accordance with Mexican law. The company responded publicly and emphasized that diversity was important to them and that they were working with the National Commission for the Prevention of Discrimination on several projects (Coca-Cola FEMSA 2006). Even so, in February 2006, Mexico City’s 30th Civil Court ruled in Mr. Mendoza’s favor and asked the company to pay compensation for the “moral damages” it caused, citing the Mexican Federal Law to Prevent and

30

CHRD unique ID: 111CCF0011. As described in Chapter 3, the target of the allegation is coded according to victims’ claims. If victims name the headquarters, the team coded that firm. If victims, as is the case here, name the subsidiary, then the allegation is coded with a focus on the subsidiary rather than the parent company.

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figure 4.9. Marginal effect, firm size on civil trials (left). Marginal effect, foreignness and size on criminal trials (right)

Eliminate Discrimination, which explicitly mentions forms of discrimination based on sexual preferences in Article 4. In 2005, Coca-Cola FEMSA reported a profit margin of 14 percent, which is about two percentage points above the mean in the sample. Firm Size While profit may affect foreign and domestic firms differently, what about firm size? The literature explored above suggests that large firms will be more visible and thus, more vulnerable to accountability (H 4.2b). This analysis confirms the literature and varieties of remedy appraoch. Size alone has a positive and statistically significant effect for civil trials. That is, plaintiffs are more likely to pursue accountability efforts in civil courts against larger firms, on average (Table 2A, Model 3 in Appendix B). The largest firms are about twenty percent more likely to face a civil trial than their smallest counterparts (see the left-hand side of Figure 4.9). The Argentine Supreme Court of Justice, for example, ruled that Cencosud, Chile’s largest retail company, was guilty of discriminating against a group of employees who were laid off after demanding a higher salary (Albornos 2010). In March 2006, the employees formed a union (El Sindicato de Empleados Jeraquicos de Comercio) and requested a higher salary. The company laid them off without cause after this request and the

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employees sued for discrimination (Albornos 2010). The court demanded that the employees be reinstated (La Nación 2010). Cencosud’s assets were around $13 million at the time.31 Although some cases make it to trial, the final outcomes do not always favor victims. The Brazilian Norte Energia S.A. is an electrical energy company that specializes in hydroelectricity based in Porto Velho, Rondônia, in the upper Amazon river basin. The company is accused of failing to conduct prior consultations with indigenous local communities in 2006, a year after the company began building a dam, Belo Monte (BBC 2012), which as of 2019, was the world’s fourth-largest hydroelectric dam (Watts 2019).32 The Regional Federal Tribunal (TRF1) declared the authorization of the project by the Brazilian Congress to be illegal. The decision concluded that the Brazilian Constitution and ILO Convention 169, to which Brazil is party, require that Congress can only authorize the use of water resources for hydroelectric projects after an independent assessment of environmental impacts and subsequent consultations with affected indigenous peoples (International Rivers, Amazon Watch, and AIDA 2012). While the original ruling was favorable, two weeks later, the Brazilian Supreme Court overturned this decision (BBC 2012) and the dam began operating in 2016.33 Norte Energia’s assets at the time were around $6 million, which though not particularly large, is in the second quartile of the sample. Large firms are more likely to face civil trial while large, foreign firms are more likely to face criminal trials, as illustrated on the right-hand side of Figure 4.9 (Table 2C, Model 2 in Appendix B). This finding is in stark contrast to the broad narrative that such firms are immune to accountability efforts. The analysis shows that while foreign status generally seems to help protect firms, the largest among them are more likely to find themselves defendants in criminal proceedings. Note that this estimate becomes less precise as firm size

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CHRD unique ID: 723CCS000. CHRD unique ID: 608NOT0006. On November 24, 2015, Brazilian Institute of Environment and Renewable Natural Resources (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis, IBAMA) granted an operational license to Norte Energia despite non-compliance issues raised in the IBAMA’s September 2015 report. The Inter-American Commission on Human Rights officially opened a case against Brazil in relation to the Belo Monte dam project in 2015 and, according to the BHRRC, submitted their final arguments in May 2018. See Luna (2010) for a summary of the case, which has garnered substantial attention over the years because of its implications for the Amazon. Quite interestingly, more recent reports show that the dam may be unviable due to reduced water flows, which could be the result of increased deforestation and upstream use for rapidly expanding cattle ranches and soy farms (see Watts 2019; Higgins 2020).

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increases, which is indicated by the large standard errors toward the right of the figure. In Paraguay,34 Monsanto and landowners using their products were accused of using toxic chemicals on soy fields, which killed an eleven-yearold child, Silvino Talavera, in 2003 and made others sick.35 The Ministry of Agriculture, Ministry of Public Health, and Secretariat of the Environment (Secretaría del Ambiente, SEAM), along with all other associated public ministries (Ciciolli 2003) confirmed the allegations through testing. Silvino’s mother, Petrona Villasboa, launched an unprecedented campaign to bring justice for her son.36 In 2004, an appeals court ruled that Hermann Schlender and Alfred Laustenlager were found to have engaged in the negligent use of the agricultural chemicals; Hermann Schlender was sentenced for homicide and production of risks to the public, and Alfredo Laustenlager, plantation co-owner, for wrongful death (Kurtural 2018). In addition, the court ruled they also needed to compensate the victim’s family, each with the sum of 25 million Guaraníes (approximately US $4,500) (El Economista 2006). Although the first judgment was vacated, the second judgment by another lower court judge found the defendants guilty of manslaughter; when the defendants appealed, the appeals court upheld the lower-court ruling, and the two landholders were sentenced to two years in prison (Weisberg and Brown 2007).37 Unfortunately, on January 26, 2007, the interim execution judge, César Daniel Delgadillo, suspended the sentence. The judge, instead, decided that both of the convicted individuals would have to clean the facilities of

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CHRD unique ID: 101MSA0005. Weisberg and Brown (2007) offer a summary of the allegation: “Silvino was walking home from school one day, taking his normal route through a neighboring soy plantation, where landowners were growing Monsanto RoundUp Ready hybrid seeds, which require regular doses of a potent herbicide to thrive. He was near his home when he was enveloped in a cloud of the Monsanto herbicide cocktail RoundUp sprayed from a cropduster. He arrived home barely able to breathe. The child was rushed to the nearest hospital, where he died five days later, on January 7, 2003.” NGO support helps victims gain access to judicial remedy. In this instance, Silvino’s mother Petrona Villasboa initiated a “Justice for Silvino” campaign, which was supported by the Organization of Peasant and Indigenous Women (Organización de Mujeres Campesinas e Indígenas Conamuri, CONAMURI). Other organizations joined as well, while opposition from soybean farmers in the region also grew. Petrona was threatened by one of Schlender’s employees; a priest came to her home to encourage her to abandon the judicial process; and, tragically, her brother, Serapio Villasboa, leader of the Paraguayan Peasant Movement (MCP), was stabbed to death just a few days before the trial began (Kurtural 2018). The Judicial Authority (Palacio de Justicia) tried the case, although community members believed that judicial authorities did not go far enough in prosecuting the guilty employees for the poisoning (El Economista 2006). It is important to note that, given the strength and importance of the soy industry in Paraguay, “agrochemical fumigation was not on trial, but rather the reckless behavior of the accused” (Kurtural 2018; Ciciolli 2005).

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the Pirapey health center (where the young child was treated and died) twice a month, reforest the premises of a community center with native species, and adapt their soy production to the provisions of Law 294/93 on Environmental Impact.38 Judge Delgadillo was also part of the original court that convicted Schlender and Laustenlager (Ultima Hora 2007). In 2009, Villasboa filed a civil lawsuit, naming Monstanto, but no further information is available. In Brazil, BASF, a German multinational chemical company and the largest chemical producer in the world, purchased a facility in São Paulo in 2000, which was previously owned by Shell and American Cyanamid. The chemical plant operated from 1977 until government authorities ordered its closure in 2002 (Murphy 2013). Shell became the owner of the site again in 2008 when it bought it from BASF but the plant remains closed. Local communities allege that the company dumped toxic waste into the land and water sources, affecting the health of community members and workers.39 São Paulo state’s Public Ministry accused Shell and BASF of negligence in the exposure of at least 156 people to toxic pesticides in Paulínia and reported there were risks to the population of Vila Carioca, where pesticides were made between 1950 and 1978 (Khalip 2002). A government official told Reuters, “This is the hour when the company needs to admit to its error and do what needs to be done. It’s Shell’s responsibility – the contamination of the environment and its contamination of the population” (Cohen 2001). São Paulo state’s environmental agency, CETESB (Companhia Ambiental do Estado de São Paulo) disclosed it found unacceptably high levels of dieldrin, a toxic substance used in the production of pesticides, in wells near the Vila Carioca fuel and chemical distribution depot. In March 2007, the Brazilian Ministry of Labour and several workers’ associations filed a criminal lawsuit against Shell Brazil and BASF alleging that workers employed at, and living near, the pesticide plant suffered from cancer and other severe health problems as a result of land and groundwater contamination around the plant. The claim, in Paulínia Labor Court, São Paulo, sought compensation for their illnesses and suffering as well as recovery of medical costs (BHRRC 2014). In January 2009, the court granted an interim injunction in favor of the plaintiffs, ordering Shell and BASF to pay for medical treatment of all of its former employees and their families. On August 19, 2010, the court upheld its earlier injunction and ordered the defendants to pay R$64,500 (US$36,700) in compensation to each former worker and any of their children born during or after their service at the 38

39

The family maintains that the judicial provision is unconstitutional, arguing that an execution judge is not the competent authority for this decision (Ultima Hora 2007). CHRD unique ID: 300BSF0004.

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factory, a total of 1,068 individuals (US$39.2 million). Moreover, the defendants were ordered to pay R$622 million (US$354 million), in collective compensation for “moral damages” into a Worker Protection Fund (Repórter Brasil 2013; Dupré and Wrobleski 2013).40 Both defendants appealed the decision, arguing they were not responsible for the damage, because it occurred prior to their acquisition of the plant, though the parties agreed to a final settlement in March 2013 that could reach about R$620 million (US$316 million).41 This finding is important as it challenges the idea that large multinationals can avoid accountability efforts – an oft-cited narrative in the business and human rights realm, as noted in Chapters 1 and 2. The discord between business and human rights scholars’ claims about corporate impunity and management scholars’ concern with mitigating enterprise risk is quite interesting. One paints a picture of limitless corporate power; the other cites the difficulties and challenges firms face in highly competitive environments, especially when operating abroad. In management scholarship, this phenomenon is called the “liability of foreignness,” in which foreign firms are at a disadvantage without local knowledge, networks, and expertise (Zaheer 1995; Crilly, Ni, and Jiang 2016). These findings confirm, that under specific scope conditions (e.g., when the foreign firm is large) states support victims and pursue criminal cases against foreign firms, despite the challenges of doing so. While corporate accountability is still difficult to achieve, one would be remiss to say that firms avoid accountability efforts altogether. If large, foreign firms are more likely to be held to account through criminal proceedings, the other side of that coin is that the firms that are avoiding criminal justice are homegrown. Large, domestic firms, possibly with greater domestic economic influence or political power, are able to avoid criminal prosecution within their home country. Indeed, some scholarship finds that domestic firms have an advantage relative to their foreign counterparts in 40

41

Shell said the agreement was “an excellent opportunity to end the legal dispute,” but clarified that it did not accept responsibility for the contamination of workers: “The occurrence of environmental contamination did not necessarily imply exposure to people’s health” (Repórter Brasil 2013). In an interview with Repórter Brasil, the workers’ lawyer, Vinícius Cascone, reportedly quipped, “It would mean saying that I jumped into a pool full of water and, when I left, I didn’t get wet” (Repórter Brasil 2013). On appeal, the São Paulo Labour Court affirmed the lower court’s ruling. In March 2012 Shell and BASF were in settlement talks to determine who should pay the Brazilian damages. In February 2013 the São Paulo Labour Court reported that Shell and BASF had offered the plaintiffs a settlement – lifelong health plans for each individual, worth about US$26 million (Murphy March 11, 2013). BASF’s assets around the time were approximately US$ 76 million while Shell reported assets around US$ 226 million.

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figure 4.10. Model visualization of interaction effects, varieties of remedy pathways for judicial remedy

contexts of high economic and political volatility. Domestic firms utilize their extensive linkages to their advantage, which explains why domestic investments often outperform their foreign competitors (Post 2014). Informal institutional arrangements in contexts of weak institutions favor domestic firms when it comes to criminal proceedings. This offers a different perspective from the broad literature that suggests foreign multinationals – with more resources and longer time horizons – are expected to outperform their domestic counterparts. Of course, as illustrated above and in Figure 4.10, profitable domestic firms are more likely to face civil trial in the face of wrongdoing so domestic firms, generally, are not immune to accountability efforts. Elevating Voices The final set of hypotheses (H 4.3a and H 4.3b) suggests that victims are more likely to have access to accountability mechanisms when civil society organizations, specifically NGOs, provide support in seeking remedy (e.g. securing needed local resources, offering legal support, collecting evidence) and less so when INGOs are involved. The data illustrate that the support of domestic non-governmental organizations significantly improves the likelihood that victims will have access to civil trials (see Table 3 in Appendix B). Figure 4.11 (left-hand side) illustrates that those victims who have the support

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.4

.4

.3

.3 Pr(Criminal Trial)

Pr(Civil Trial)

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.2

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.2

.1

.1

0

0 0

NGO Support

1

0

INGO Support

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figure 4.11. Marginal effect, NGO support on civil trials (left). Marginal effect, INGO support on criminal trials (right)

of NGOs are about 10 percent more likely to access civil trials than those who do not. In Durango, Mexico,42 for example, mineworkers and local landowners created a blockade and camped outside of the La Platosa mine, owned by Excellon Resources, in July 2012 (OECD Watch 2012). Local landowners from the community of La Sierrita originally supported mining and signed a land contract with the company in 2008, but later claimed that Excellon failed to comply with the terms of the contract, “in which the company agreed to build a water treatment plant and offer preferential hiring” (Mining.com 2012). Moreover, employees of the democratically run Local 309 National Mining Union reported the company denied their right to freedom of association, and instead intimidated and pressured its employees to not join the union (ProDESC 2012; Sánchez 2012).43 In response to the peaceful protests, on October 24, 2012, Excellon Resources’ employees violently dispersed the mineworkers (the Local 309 National Mining Union) and local landowners who were protesting just 42 43

CHRD unique ID: 1704EXC0009. Excellon (2013) reports that the opposing union began the blockade because they lost the election (p. 3).

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outside the mine in Bermejillo, Durango. ProDESC, a local NGO, reported that Robert Moore, chief operating officer of Excellon Resources, Inc., “directly participated in the action against the landowners, pulling down the fence that the landowners had set up to protect their camp” (ProDESC as cited in Marowitz 2012).44 A member of the company-led union, Napoleón Gómez Sada, then moved in with heavy machinery and immediately began to destroy and burn the protesters’ temporary housing. The protestors made repeated requests to federal and state officials, who were present, to stop the aggressors, yet they took no action. Members of the community, with the legal support from ProDESC, filed a formal lawsuit in Canada, where Excellon is based (ProDESC, n.d.) and in Mexico (Excellon 2019). In 2012, members of the La Sierrita community and Excellon both filed lawsuits to terminate their thirty-year contract.45 Brendan Cahill, executive vice president of Excellon Resources, reported that the mine “won’t make any money at all” in the third quarter of 2012, as their earnings dropped to about $500,000 in the second quarter from $5.5 million at the start of the year (Marowitz 2012). In 2016, the Agrarian Court of the Sixth District (Tribunal Unitario Agrario del Districto Sexto) in Torreón, Coahuila ruled that the landowners (ejido members) owed Excellon 5.5 million pesos for losses and damages and also ruled that Excellon pay the landowners 5.5 million pesos, effectively cancelling one another. Both sides appealed the ruling and in 2017 the court recommended a simple rescission of the contract (Excellon 2019, p. 24). According to a company statement issued on February 4, 2020, “Minera Excellon’s arguments have prevailed in court decisions to date, although appeals are still ongoing” (Minera Excellon de México S.A. 2020). In contrast to the positive role NGOs can play in access to civil trials, the graph on the right-hand side of Figure 4.10 demonstrates that INGO support has a negative effect on access to judicial remedy (as hypothesized in H4.3b; see Table 3, Models 1 and 2 in Appendix B).46 One might wonder if this finding reflects INGOs’ broader efforts to raise awareness around violations of corporate human rights abuse, rather than a victim-centered approach. However, the CHRD distinguishes between those INGOs and NGOs that are simply reporting such abuses from those that are seeking to support 44

45

46

ProDESC’s mission is to provide “legal, advocacy, organizational and research support, to communities and workers suffering from increasing levels of poverty and declining economic, social and cultural rights (ECSRs) throughout Mexico” (ProDESC, n.d.). The Ejido filed a case in the District Criminal Court for Administrative Matters based in Torreón, Coahuila (Redacción Revolución 2017). Note that the coefficient for NGO support is positive and significant, but only at the 0.10 level. Meanwhile, the effect of INGO support is negative and significant at the 0.05 level.

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victims, meaning that the INGO support here is associated with activity beyond simply raising awareness or reporting the abuse. To be fair, some INGOs have no interest in advocating for judicial remedy. Instead, some INGOs may target corporate change by reporting on wrongdoing or illustrating how a major brand is implicated in a supply chain that exacerbates environmental degradation or poor labor practices. Nonetheless, this finding illustrates that even if an INGO is involved, judicial action is less – not more – likely for victims. This finding holds when controlling for access to non-judicial remedy, as well. Substantive support might include advocacy, active monitoring, or reaching out to state or international authorities, as AFD International, a human rights organization based in Belgium, did when an environmentalist, Miguel Ángel Pabón Pabón, was forcibly disappeared in San Vincente Chucurí in Santander, Colombia.47 Pabón was outspoken in his opposition to a large, hydroelectric dam, the Hidrosogamoso, a dam in the Sogamoso River, and disappeared on October 31, 2012 (AFD International 2017). No legal remedy efforts were pursued. In Brazil, the Environmental Defender Law Center (EDLC), based in Seattle, Washington, provides substantive support by finding lawyers, providing resources, giving grants, and publicizing human rights violations against environmental advocates. The EDLC has advocated on behalf of Alexandre Anderson de Souza, Director of the Professional and Traditional Fishermen Trade Union of the State of Rio de Janeiro (Sindicato dos Pescadores Profissionais e Pescadores Artesanais, SINDPESCA-RJ). Souza was the victim of threats and violence for his work as a human rights defender of the fishermen who have been affected by the operations of the Petrobras’s pipeline in the Guanabara Bay, particularly the Project GNL and Project GLP.48 In November 2013, Souza’s home and the Fishermen’s Association (Associação dos Homens do Mar, AHOMAR) offices were ransacked. Even so, no legal action has been taken to redress these claims.

discussion The varieties of remedy approach tells a new story about access to remedy mechanisms. The business and human rights story is not one of impunity, but one of enduring efforts toward accountability; one that emphasizes the multiple pathways to accountability; and one that exhibits the ongoing nature of constatation. 47 48

CHRD unique ID: 608ISA0006. CHRD unique ID: 1705PET0005.

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table 4.2. Access to judicial remedy: Hypotheses and findings Hypotheses

Expected Effect

Findings

H 4.1: Strong Institutions ➔ More Access to Judicial Remedy

+

Confirmed. Victims in countries with respect for rule of law are more likely to access judicial remedy.

H 4.2a: Foreign/Profitable Firms ➔ Less Access to Judicial Remedy

–

Confirmed. Victims of foreign firms are less likely to access judicial remedy. Partial. Victims of profitable firms are less likely to access judicial remedy. However, profitable domestic firms are more likely to face civil proceedings.

H 4.2b: Large Firms ➔ More Access to Judicial Remedy

+

Confirmed. Large firms are more likely to face civil proceedings than their smaller counterparts. Large foreign firms are more likely to face criminal proceedings.

H 4.3a: NGO Support ➔ More Access to Judicial Remedy

+

Partial. Victims with NGO support are more likely to have access to civil trials, specifically.

– or null

Confirmed. Victims with INGO support are less likely to have access to judicial remedy.

H 4.3b: INGO Support ➔ Null Effect or Less Access to Judicial Remedy

The findings in this chapter show that victims are more likely to have access to trials when institutions are strong and rule of law is respected. Moreover, the characteristics of the contestation matter – who makes the claims and to whom. While foreign firms or profitable firms are more likely to avoid accountability, the findings also illustrate that domestic firms or those showing greater losses are more likely to find themselves facing victims in court. This chapter also demonstrates that profitable domestic firms and large firms are more likely to be held to account through civil proceedings. Moreover, large foreign firms are more likely to face criminal trials. Finally, this analysis indicates that those victims with support from NGOs – not INGOs – are more likely to access judicial remedy mechanisms. The hypotheses from the literature, expected effect, and findings are summarized in Table 4.2.

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The varieties of remedy approach challenges existing assumptions in the literature. In short, this chapter illustrates that, in contrast to common narratives about the governance gap, victims of corporate human rights abuse can, and do, have access to judicial remedy mechanisms. As noted in the introduction, rulings do not always fall in their favor, but this should not detract from the notion that victims and their advocates are using legal institutions to seek corporate accountability and provide access to justice for victims. The varieties of remedy approach is able to explain some of the tensions highlighted in these findings. First, pragmatism reminds us that there are multiple logics and multiple pathways to a particular outcome. While many victims are unable to access remedy despite a concerted effort to do so, a story of corporate impunity does not capture the entire picture. Pragmatism helps make sense of the dynamic and sometimes erratic nature of seeking accountability for corporate human rights abuse. Agonism reminds us that any given outcome is ephemeral. This perspective, which is explored in greater depth in Chapter 6, helps make sense of the ongoing nature of contestation and recognizes that suboptimal outcomes can still improve institutional legitimacy as those involved are able to make their claims heard, even if they are not fully addressed. From a policy perspective, these findings challenge the assumptions many have about appropriate next steps to improve access to remedy for victims of corporate human rights abuse. Rather than finding that formal accountability for corporate wrongdoing is impossible, I argue that a number of pathways to judicial remedy mechanisms exist. In practice, this points to the need for a far greater focus on understanding, supporting, and augmenting the work that local advocates are doing every day. The UNGPs may have helped amplify some of the real challenges associated with increasing access to remedy for corporate human rights abuses, but in doing so, they may have also inadvertently silenced or minimized domestic efforts and successes toward accountability. Local actors with local knowledge of local bureaucratic procedures have valuable knowledge about local systems and processes. That knowledge is power. Individuals in those organizations understand how to increase awareness in their communities; they understand where the pressure points are; they understand how to ensure victims’ voices are heard – not by the international community, but by the local actors who can actually help improve access to accountability mechanisms. In short, these findings suggest that a global policy that is built on highlighting, bolstering, and funding existing local efforts for victims’ advocacy and increased corporate accountability is needed to secure accountability for corporate wrongdoing.

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5 How Contestation Shapes Access to Non-Judicial Remedy Mechanisms

Even with the best policies and practices, a business enterprise may cause or contribute to an adverse human rights impact that it has not foreseen or been able to prevent. Where a business enterprise identifies such a situation. . .its responsibility to respect human rights requires active engagement in remediation, by itself or in cooperation with other actors. —Commentary for the UN Guiding Principle 22, developed by John Ruggie, Former Special Representative of the UN Secretary-General for Business & Human Rights

In Guatemala, indigenous communities in San Juan Cotzal engaged in what is reportedly their first-ever negotiation with a multinational company, Enel Green Power, an Italian renewable energy multinational corporation (Roberts 2011). In 2006, the Guatemalan government authorized the construction of the Palo Viejo dam (ECA Watch, n.d.) and the company began construction two years later. Enel did not engage in free, prior, and informed consultation with the indigenous communities in San Juan Cotzal, and as a result, tensions grew (Roberts 2011).1 A community elder, Concepción Santay stated, “[t]he International Labor Organization’s Convention 169 says that we should have been consulted before any of this began, and that we also have a right to benefit from the profits that the dam will create” (Escalon 2012a).2

1

2

Free, prior, and informed consent (FPIC) is a specific right that requires participation of, and consultation with, indigenous communities prior to the beginning of development activities on their land; it is recognized in the International Labor Organization’s Convention 169 and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Whereas the former focuses on participation and consultation, the latter focuses on consent, which has prompted both scholarly and policy debates (Schilling-Vacaflor 2017). Article 15 of ILO 169 recognizes that the “peoples concerned shall wherever possible participate in the benefits of such (sub-surface or mineral resource extraction) activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.” Bustamante and Martin (2014) have written about benefit sharing efforts in the Canadian context, specifically.

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Additionally, friction increased due to Enel’s alleged pollution in the waterways and in local communities. In 2010, the Cotzal communities engaged in non-violent protest and blocked the access road to the Palo Viejo construction site for four months (Escalon 2012a). In response, the Guatemalan government deployed “hundreds of police and soldiers with tear gas and helicopters to confront the unarmed protestors” on three separate occasions (Roberts 2011). The police issued arrest warrants for protest leaders (Escalon 2012a). At one protest, shots were fired into the crowd of demonstrators, but no one was injured (ECA Watch, n.d.).3 Initially, the company responded to the protests by launching legal action against the protesters. Enel subsequently dropped the lawsuit in exchange for access to the construction site and agreed to participate in negotiations with the community (Roberts 2011). Negotiations between Enel representatives and the Mayan Ixhil population living in San Juan Cotzal were facilitated by witnesses of honor (testigos de fé), selected by the community (Archbishop Alvaro Ramazzini and Dr. Victorino Similox, head of the Christian Ecumenical Council of Guatemala) and the company (Gustavo Porras, a sociologist, former member of the guerrilla and government peace negotiator). Archbishop Ramazzini urged the company to think differently about its operations, stating: “[I]t is necessary to find a balance between the earnings of the company and the contribution of these earnings for the [indigenous] population” (Roberts 2011). The community requested a profit-sharing structure for the Palo Viejo dam and requested 20 percent of revenues from the energy sold (Roberts 2011). Plaza Pública (Escalon 2012b) reports that the community leaders proposed this percentage in an arbitrary fashion and that the amount was, in effect, “well above what [the company] could pay.” After eight months of negotiation, the parties could not come to an agreement. Even so, in a company statement, Enel reported that the “negotiations were conducted with mutual respect” (Enel Company Response 2020). Archbishop 3

This is an abbreviated version of this case. One complicating factor worth noting is that there was an ongoing, local power struggle between the democratically elected mayor of San Juan Cotzal and those who are considered “auxiliary” or indigenous mayors. In this particular case, Mayor José Pérez Chen initially signed an agreement with Enel, which stipulated the company would engage in public good projects (e.g. roads, schools, etc.). Chen later threatened opposition leaders, one of whom was arrested by a group of armed men (called the “Citizens Security” group, founded by the mayor) and interrogated by then deputy mayor of Cotzal (Escalon 2012b). However, a local power vacuum emerged – and negotiations with Enel slowed – due to an unrelated incident; Mayor Chen was arrested and put on trial for lynching a policeman, Pedro Rodríguez Toma, who was protesting the public beating of his son, who allegedly had a “gang appearance” (Escalon 2012b). Chen fled for two years (2010 to 2012), during which the municipality had no official leader.

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Ramazzini made similar comments, noting that “[b]oth parties had the will to reach an agreement. There were no verbal attacks or acts of aggression” (Escalon 2012b). In 2012, the Palo Viejo dam was completed. That same year, the municipality, which included members of the community who, according to Enel, were democratically elected, approached the company to resume negotiations. Within three months, an agreement was reached and signed (Enel Company Response 2020) in which the San Juan Cotzal would receive 300,000 euros annually over twenty years with 4 percent inflation (ECA Watch, n.d.). These funds could be used for economic, social, environmental, and cultural projects in the community. A committee, which includes two representatives of the company, would decide how the funds will be allocated (ECA Watch, n.d.). The agreement was signed in a celebratory fashion outside of the President of Guatemala’s residence. Yet, a group of Mayan Ixhil leaders complained that the agreement was a unilateral negotiation between the Mayor of San Juan Cotzal and that much of the population did not support it (América Economía 2013). In this example, like others, the community is divided. Indigenous leaders have serious concerns about the environmental impact of the dam, while local political leaders sought to push the project forward (Escalon 2012a). Concepción Santay highlights the discord between dealing with the externalities of the dam, but not reaping its benefits: “for us it’s a shame, they are making a mockery of us. We generate [electricity] and we don’t have it” (Escalon 2012a).4 Non-judicial remedy mechanisms – like the mediation-based negotiations that took place between Enel and the citizens of San Juan Cotzal – are a hallmark of contemporary discussions of business and human rights. One of the distinguishing features of the UNGPs is that they recognize the numerous difficulties victims face when seeking formal accountability, so they aim to establish alternative paths. As Ruggie notes in the epigraph earlier, firms should fulfill their responsibility to respect human rights through active engagement in remediation. Yet, we know very little about why some allegations are met with non-judicial remedy and others are not. What was it about the context or characteristics of the San Juan Cotzal communities and Enel that facilitated negotiation through non-judicial remedy? How do the 4

In a 2020 update to the negotiation process, Enel summarized their financial investment in the community (an estimated 2.6 million euros), as well as an agreement with the central government since 2014, in which the government contributes two euros for every euro Enel donates to the community (an estimated total of 5.6 million euros since 2014). Even so, others underscore that electricity is still an issue. An article by Giovanni Batz (2020) notes that only 37 percent of the Cotzal population has access to electricity (p. 1030).

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pathways to non-judicial remedy take shape? And, what are the implications for agonistic and pragmatic thought? While the previous chapter outlined pathways to formal accountability efforts, this chapter seeks to understand when victims have access to nonjudicial remedy mechanisms, focusing on those initiated by the state or corporate actors.5 Given the broad array of non-judicial remedy mechanisms, as discussed later, there is a dearth of systematic knowledge about the types of non-judicial remedy mechanisms that are used, who initiates them, and when victims have access to them. Some of the findings in this chapter challenge existing assumptions about access to non-judicial remedy, and elucidate why some claims are addressed with non-judicial remedy and others are not. Thus, this chapter further develops the varieties of remedy approach by continuing to build on agonism and pragmatism – the intellectual framing for the pathways outlined in Chapter 2. Non-judicial remedy mechanisms provide a stimulating empirical context in which to engage with pragmatism, as they might facilitate what Dewey referred to as managing interdependencies (Dewey 1927). Dewey recognized that institutions were not solutions, but temporary configurations that “managed” the tensions that arise when multiple parties rely on one another. In his view, institutions are the “residue” of past governance arrangements (Dewey 1927, p. 74). Pragmatism recognizes the complex, but fleeting nature of institutional arrangements, while agonism reminds us that this is because those arrangements are suboptimal – consensus is a misnomer and, quite possibly, an illusion. Pragmatism says institutional arrangements are temporary; and, though not explicitly, agonism explains that such arrangements are ephemeral because they are, or will be, unsatisfying to some groups. The San Juan Cotzal and Enel example is emblematic of the varieties of remedy approach. It also illustrates the perennial nature of contestation, as some community members were dissatisfied after the 2012 agreement with the company was signed. Pragmatism and agonism encourage us to accept the complexity and fluidity of such confrontation because it requires reflexive innovation and experimentation. Non-judicial remedy – due to the broad range of mechanisms employed – offers an interesting application of these ideas, which I revisit at the end of the chapter. 5

Note that other actors can also initiate non-judicial remedy, though this is relatively rare. The remaining non-judicial remedy mechanisms in the CHRD are initiated by victims or groups representing them (16 percent), international organizations (12 percent) and community groups (6 percent). More research is needed to understand how non-state and non-business groups could be more empowered to engage in non-judicial remedy, but this is beyond the scope of the inquiry at hand.

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Continuing the argument in Chapter 2, the varieties of remedy approach identifies several key pathways to non-judicial remedy, which build on existing scholarship. As this chapter will demonstrate, the Institutional Strength pathway, supports the assumptions made by business and human rights policymakers and scholars that non-judicial remedy will serve a complementary function to provide redress when judicial remedy is inaccessible. As discussed in this chapter, increased access to non-judicial remedy in a weak institutional context is not driven by companies stepping into the fold. Instead, this analysis illustrates that states are more likely to engage in state-led non-judicial remedy when rule of law is weak. Furthermore, the Corporate Characteristics pathway illustrates how firm-level characteristics shape access to state-led or corporate-led non-judicial remedy. States are more likely to initiate non-judicial remedy with profitable firms, but less likely to do so with large firms. Alternatively, larger corporations are more likely to initiate non-judicial remedy than their smaller counterparts, which supports the notion that a firm’s reputational vulnerability and organizational capacity matter. Finally, the Elevating Voices pathway highlights the role NGOs and INGOs play in facilitating victims’ access to non-judicial remedy. While the findings in Chapter 4 showed that NGO involvement increased victims’ access to judicial remedy, this pathway indicates that NGO involvement matters most when they help victims challenge corporations that have a history of human rights abuse. State-led non-judicial remedy is more likely in such instances. INGOs, as in Chapter 4, are less influential as the varieties of remedy approach suggests. This analysis shows that their engagement decreases the likelihood that the state will initiate non-judicial remedy mechanisms. Neither NGOs nor INGOs involvement has an effect on victims’ access to corporate-led non-judicial remedy mechanisms, indicating that corporations, on average, are unmoved to seek non-judicial remedy when pressure comes from civil society organizations. This chapter proceeds in four parts. First, to provide the reader with a better understanding of non-judicial remedy, I discuss how those mechanisms are described in the UN Guiding Principles on Business and Human Rights and then share a few examples from the CHRD. Next, I build on the political economy, management, and contentious politics literature to test the pathways associated with the varieties of remedy approach developed in Chapter 2. After providing a description of the data and methodology (with additional detail provided in Appendix C), the chapter concludes with a discussion of the findings and their implications.

non-judicial remedy: variation in processes and access What is non-judicial remedy? According to the UN Guiding Principles (UNGPs) on Business and Human Rights, non-judicial remedy may be

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“mediation-based or adjudicative or other culturally appropriate and rightscompatible processes” and include “apologies, restitution, rehabilitation, financial or non-financial compensation, and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition” (United Nations 2011, p. 27). As discussed in Chapter 3, the CHRD illustrates that 25 percent (256 of 1,007) of allegations in Latin America between 2000 and 2014 involve some type of non-judicial remedy mechanism.6 Non-judicial remedy mechanisms differ from judicial remedy in that the array of options is vast and multiple actors can initiate them.7 State actors can initiate non-judicial remedy mechanisms as a more expedient mechanism (relative to formal judicial processes) or because the allegation falls under the purview of specific administrative units (e.g. labor disputes addressed by the Ministry of Labor or environmental issues by the Ministry of the Environment). The CHRD shows that state actors initiate non-judicial remedy mechanisms approximately 45 percent of the time (117 of 256 instances). For example, the Chilean hypermarket chain, Líder, was accused of implementing anti-union practices and discriminating between union and non-union employees.8 The Chilean Labor Directorate issued fines to the company on three separate occasions. While administrative proceedings like this one constitute approximately 60 percent of the cases in which the state initiates a non-judicial remedy (72 of 117 instances), states also encourage corporations to adopt internal proceedings or grievance mechanisms to address future claims about one in ten times (11 of 117 instances). Finally, states also initiate and lead multi-stakeholder initiatives to resolve allegations of abuse about 12 percent of the time (15 of 117 instances). Corporate actors might be more interested in engaging in non-judicial remedy mechanisms, as well, due to efficiency, cost, and reputational concerns. The UNGPs (2011) highlight that corporate-led non-judicial remedy mechanisms “offer particular benefits such as speed of access and remediation, reduced costs and/or transnational reach” (p. 31). Firms like Enel described in the opening of this chapter initiate non-judicial remedy

6

7

8

Note that the vast array of non-judicial remedy mechanisms means that the quality and structure vary substantially. Ruggie (2008) wrote that, at a minimum, they “must be legitimate, transparent, independent, accessible, predictable and equitable” (p. 24). Assessing these characteristics would make for interesting future research but is beyond the scope of this project, which instead seeks to better understand the conditions under which victims have access to non-judicial remedy. Non-judicial remedy can be initiated by any actor; however, they are most often initiated by the state or companies, which is the focus of this analysis. CHRD unique ID: 723HIP0006.

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mechanisms approximately 30 percent of the time (76 of 256 instances). Nearly one-third of firms that initiate non-judicial remedy develop internal grievance procedures as a result (26 of 76 instances), while nearly one in four initiate a multi-stakeholder initiative (19 of 76 instances). Even with the proliferation of these mechanisms, however, we still know very little about what leads to non-judicial remedy mechanisms in some cases and not others. Thus, this chapter asks: how do the varieties of remedy pathways explain the variation in victims’ access to non-judicial remedy?

pathways to non-judicial remedy This chapter further develops the varieties of remedy approach by drawing from related scholarship that informs how its associated pathways work in the context of non-judicial remedy. The Institutional Strength pathway draws on the political economy literature, which illustrates how institutions can shape firm behavior. As I assert in Chapter 2, the varieties of remedy approach maintains that victims will have greater access to non-judicial remedy, generally, and state-led non-judicial remedy, in particular, when the rule of law is weak. Next, I discuss the Corporate Characteristics pathway. The varieties of remedy approach suggests victims are more likely to access non-judicial remedy mechanisms when firms have slack resources and capacity to do so – assertions that are supported by the analysis herein. Finally, I engage with the contentious politics literature to develop the Elevating Voices pathway, which not only necessitates an understanding of whose voices are elevated but also to whom. As discussed in Chapter 2, NGOs’ local knowledge is fundamental to access to remedy and to non-judicial remedy, especially when firms have a history of abuse. As we saw in Chapter 4, this contrasts with the ineffectiveness of INGOs in facilitating access to remedy. Next, I explore these pathways and draw out hypotheses from the varieties of remedy approach and supporting literature to better understand how the context of contestation shapes victims’ access to non-judicial remedy mechanisms. Institutional Strength Scholars from many disciplines emphasize the importance of institutional strength in shaping outcomes of interest across key indicators, like economic development (Boix and Stokes 2003; Przeworski 1991; Przeworski and Limongi 1997), democratic endurance (Linz and Stepan 1996; O’Donnell 1998), and respect for human rights (Keith, Tate and Poe 2009; Keith 2011). While there

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is no research about the role of institutions and access to remedy mechanisms for corporate human rights abuses, I draw on the robust scholarship that identifies how institutions shape corporate conduct more generally. The varieties of remedy approach suggests that non-judicial remedy is more likely in weak institutional contexts, supporting assumptions in related literatures and the UNGPs. Non-judicial remedy mechanisms allow victims, firms, and other stakeholders to engage in remediation processes in the context of weak institutions, when judicial processes are inadequate and rule of law is weak. Many proponents of non-judicial remedy note that such mechanisms might serve as an important complement due to the “ineffectiveness of judicial grievance mechanisms in some countries” (Lukas et al. 2016, p. 325). This logic suggests that non-judicial remedy offers an alternate way of resolving conflict and addressing grievances. One stream of management scholarship supports these ideas and investigates how weak institutions could provide an opportunity for firms to play a more pronounced role in public good provision. This literature suggests that companies will fill the governance void of weak institutions by undertaking what is called “political CSR” (Scherer and Palazzo 2011; see also 2007). The authors write, “[i]n a nutshell, political CSR suggests an extended model of governance with business firms contributing to global regulation and providing public goods. It goes beyond the instrumental view on politics in order to develop a new understanding of global politics where private actors such as corporations and civil society organizations play an active role in the democratic regulation and control of market transactions” (Scherer and Palazzo 2011, p. 901). This literature suggests that firms can engage in service provision that would otherwise be the state’s responsibility. While others argue the political CSR literature is optimistic at best, and naïve at worst, scholars do find that firms are more likely to develop stronger internal policies and practices to compensate for a weak institutional context (Kostova et al. 2008). Together, this scholarship suggests that firms working in a country with weak institutions are likely to address wrongdoing through non-judicial remedy mechanisms, as the UNGPs describe. Yet, the varieties of remedy approach offers a slightly different interpretation. This approach suggests that while states may be more likely to employ non-judicial remedy when rule of law is weak (e.g. administrative bodies may step into the fold), corporations will be relatively unaffected by a weak institutional environment. Another set of scholars support this idea and find that weak institutions incentivize corporations to avoid addressing wrongdoing rather than seeking to resolve it (Smith, Bolyard, and Ippolito 1999).

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Compliance in one country may mean the transfer of irresponsible behavior to another. Surroca, Tribó, and Zahra (2013), for example, find that multinational enterprises that face pressure at home to adhere to high standards are more likely to transfer socially irresponsible practices to its overseas subsidiaries. This logic reflects the “race to the bottom,” or when firms seek out the most lenient (or “weak”) institutional context possible, knowing that in such an environment, there will be less oversight and little accountability. This literature – like the varieties of remedy approach – argues that corporations are unlikely to provide corporate-led non-judicial remedy mechanisms in weak institutional contexts. In short, the varieties of remedy approach concurs with the logic of the UNGPs that weak institutional contexts will have more non-judicial remedy, but for different reasons. Instead, I argue that only state actors will step into the fold and aim to provide non-judicial remedy when the judiciary is weak. Firms, alternatively, will be unaffected by the weak institutional context and are no less likely to provide remedy in such contexts. H 5.1: Victims in states with weak (strong) institutions will be more (less) likely to access non-judicial remedy mechanisms, in general, and state-led nonjudicial remedy mechanisms, in particular.

Corporate Characteristics This section looks at how corporate characteristics affect the likelihood of corporate-led or state-led non-judicial remedy mechanisms. As outlined in Chapter 2, firms’ engagement in redressing their wrongs can be linked to characteristics of the firm itself, which shape the power dynamics of contestation, such as its profitability and size.9 Management scholars have written extensively about a resource-based view of the firm (Barney 1991), which suggests that firm-specific differences drive strategy and performance. Scholars find that firms with a weak financial performance are less likely to engage in corporate social responsibility (Margolis and Walsh 2001; Orlitzky et al. 2003). This occurs because firms with fewer resources to spare are less likely to engage in socially responsible activities than firms that are more profitable – an argument referred to as “slack resource theory” (Waddock and Graves 1997). In other words, unprofitable firms will attribute their scarce

9

Note that given jurisdictional issues are not relevant for non-judicial remedy mechanisms, I do not include “foreignness” in this discussion. Foreignness, however, is included in the statistical analysis as a control variable; it is not significant, indicating that a company’s foreign status does not shape the likelihood they might engage in non-judicial remedy.

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resources to other – real or perceived – pressing needs to improve their market performance. Others support this notion that slack resources will be correlated with corporate action, but for a different reason. Deitelhoff et al. (2010, p. 208) write that “the more the market success of a company depends on its image and reputation,” the more likely it is to adopt human rights protections. Human rights campaigns often target highly visible companies with well-known brands in the food and beverage (e.g. Nestlé, Coca Cola), apparel (e.g. Gap and Nike), and oil and gas (e.g. Shell, BP, and Texaco/ Chevron) sectors. In the mining industry, Dashwood (2012) highlights that the primary motivation for changes in corporate practice was due to attacks on the firm’s reputation by civil society groups. These broad trends across industries corroborate King’s (2008, 2011) findings that increased activist behavior creates public pressure for firms to change practices, especially if it brings unwanted attention that might influence the public’s perceptions about a firm’s overall social responsibility. High-profile, profitable companies are more vulnerable, and thus, the firm or the state might be more likely to respond to citizens’ demands and initiate non-judicial remedy with profitable firms, in particular. Thus, the literature suggests: H 5.2a: Victims of abuse by profitable firms are more likely to have access to corporate-led and state-led non-judicial remedy mechanisms.

The varieties of remedy approach suggests that larger firms will engage with non-judicial remedy. The scholarship also supports this assertion, as firm size affects corporate social responsibility activity, broadly (Ioannou and Serafeim 2012; McWilliams and Siegel 2001; Strike, Gao, and Bansal 2006). With greater size (as with greater profit), firms may become more visible targets for both state and civil society actors. For example, King (2008) finds that firm size is a good predictor of whether a firm is boycotted. The effect of size is rather stable, as “large size increases firm visibility, bringing greater pressures to bear on an organization to adhere” to certain standards (Etzion 2007, p. 642; see also Jiang and Bansal 2003). That is, firm size may make firms more likely to engage in non-judicial remedy mechanisms because their size makes them vulnerable to external pressure, and thus, more likely to engage with stakeholders. Other management scholars provide insight as to why firm size matters. Those studying corporate capabilities, which are needed to address complex situations, find that a firm’s capacity improves with size. Forés and Camisón (2016) find that a firm’s incremental innovation and knowledge accumulation

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increase with size. The authors note that large firms have greater financial and human resources at their disposal and often have better training available, simply due to the organizational capacity needed to employ consistent and effective instruction. The literature on stakeholder management also supports the idea that more established, and thus possibly larger, organizations will be better equipped to engage with stakeholders through dialogue (Shropshire and Hillman 2007). In a glib, if possibly accurate, manner, Henisz (2017) refers to these capabilities as “corporate diplomacy (i.e. the ability to win the hearts and minds of external stakeholders)” (p. 183). Even so, the point is valid; firms that can engage with stakeholders in a “manner perceived as genuine and caring and implement initiatives that address their issues of concern” (Henisz 2017, p. 183) would also be likely to engage in non-judicial remedy efforts. However, states may be hesitant to push for non-judicial remedy when firms are large. State actors, especially in developing countries, seek out foreign direct investment from large, multinational firms and often have close ties with large, domestic firms. As such, specific ministries associated with promoting economic growth may have more sway than those trying to reign in corporate behavior. Or, business owners and regulators may be one and the same. In Brazil, for example, Bom Futuro, a large soy producer and exporter, was accused of harming the environment by deforestation in the Amazon (Carroll and Phillips 2008). Two cousins who own the company, Erai and Blairo Maggi, own approximately 1.2 million acres (500,000 hectares) that are used for soya cultivation; as the Maggis family continues to buy land, cattle ranchers migrate further north into the rain forest where they practice slash and burn clearing techniques. Greenpeace presented the “Golden Chainsaw Award” to Blairo Maggi, an “award” given to those who are doing significant damage to the environment. Blairo was also the governor of Matto Grosso between 2003 and 2010, a senator from 2011 to 2016, and later, Brazil’s Minister of Agriculture under former President Temer from 2016 to 2019. Oft quoted for dismissing concerns about deforestation, Maggi told the New York Times in 2003: “To me, a 40 percent increase in deforestation doesn’t mean anything at all, and I don’t feel the slightest guilt over what we are doing here. We’re talking about an area larger than Europe that has barely been touched, so there is nothing at all to get worried about” (Rohter 2003). No remedy efforts have been made, and Mr. Maggi continues to support deforestation. With backing from agricultural commodities giants such as Cargill and Bunge, he pushed through a plan to pave 1,600 km of highway from his state to the Amazon river port of Santarém, Pará, where Cargill built a soya handling dock. Maggi said,

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“It’s no secret that I want to build roads and expand agricultural production. The people voted for that, so I don’t see the problem” (Rhoter 2003).10 While this is, perhaps, an extreme example, large firms wield more political weight than their smaller counterparts, given they have the resources and capacity to engage with numerous advisory committees and government officials, as needed (Salamon and Siegfried 1977). Pfeffer and Salancik (1978) argue that an organization’s size is related to its organizational power, which makes them less susceptible to external control. Meznar and Nigh (1995) find that larger firms are more likely to adopt activities that “buffer” them from the social and political environment than those that might create “bridges” (p. 990). Large firms are also likely to have more influence over political actors due to their greater bargaining power (Schuler 1996; Schuler et al. 2002) and lobbying capacities (Drope and Hansen 2006; Hillman et al. 2004; Schuler and Rehbein 1997). In other words, states may look the other way when it comes to corporate wrongdoing by large firms. Thus, H 5.2b: Victims of abuse by large firms are more likely to have access to corporate-led non-judicial remedy mechanisms, but less likely to have access to state-led non-judicial remedy. In sum, this literature illustrates how specific characteristics – profitability and firm size – can shape the power dynamics of contestation, and thus, victims’ access to remedy. The varieties of remedy approach suggests that profitability, largely due to excess slack resources, will increase access to non-judicial remedy, whether initiated by firms or states. While firm size may increase capacity, and thus, the likelihood for corporate-led non-judicial remedy, increased size will make state-led non-judicial remedy mechanisms less likely. The varieties of remedy approach underscores that firm size may work differently when considering corporate-led or state-led non-judicial remedy mechanisms.

Elevating Voices The final pathway of the varieties of remedy approach explores how local actors can improve victims’ access to remedy. The contentious politics literature finds that protest is not enough; this scholarship suggests that the most successful movements are those with formal linkages to more established nongovernmental organizations that can effectively mobilize resources and take advantage of changes in the political opportunity structures (McAdam 2003; Diani 2003). Moreover, Tsutsui and Shin (2008) find that when international 10

CHRD unique ID: 101BOF0012.

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and domestic pressures work in tandem, social movements are more likely to succeed in achieving change from state actors. Management scholars recognize the importance of this trend, perhaps now more than ever: Firms “as key purveyors of culture and institutional stability, are caught up in this contentious environment. They are often the targets of social movements seeking change” (King and Carberry 2020, p. 1741). Given the varying power dynamics between corporations and their victims, external organizations are needed to offset the power imbalances that are inherent in many of these claims. The CHRD has many examples of INGOs or NGOs providing support for victims. Survival International, an international NGO and human rights organization that campaigns for the rights of indigenous and/or tribal people, was instrumental in helping elevate the voices of two indigenous tribes living in voluntary isolation in the Marañón Basin near Loreto, Peru, where the state had authorized Barrett Resources to operate in their territory without prior consultation (Europa Press 2008).11 Barrett Resources was acquired by Perenco, which has been producing oil there since 2013 (Perenco: Peru, n.d.). In Honduras, the Great Alliance for Omoa, a local NGO, played a key role in raising the community’s concerns about environmental pollution due to the operations of a Mexican company, Gas del Caribe, which has four gas tanks at a plant located on the Omoa beach in Omoa, Honduras.12 The Secretary for Natural Resources and the Environment (La Secretaría de Recursos Naturales y Ambiente, SERNA) has been very involved in the allegations against Gas del Caribe (Cole 2007) and the National Congress of Honduras ordered Gas del Caribe to relocate after a temporary commission found that the Omoa facility had caused detrimental effects to the environment (ComunicarSe 2015). Yet, the company never complied. On March 24, 2012, the Great Alliance for Omoa again filed a complaint with the InterAmerican Commission for Human Rights (IACHR) against the state, alleging that the lives and personal integrity of the community members were threatened by ongoing pollution and the risk of an environmental catastrophe derived from the firm’s operations. On November 8, 2011 the IACHR granted precautionary measures and ordered the state to ensure the company complied with environmental law (IACHR 2011).13 11 12 13

CHRD unique ID: 1705PCP0025. CHRD unique ID: 1705GAS0001. According to a report submitted by the State of Honduras in March 2012, the parties were summoned to a working meeting which was held before Commissioner Tracy Robinson of the 144th ordinary period of sessions. In addition, the Office of the Attorney General of the Republic was requested to report on the actions it has taken to comply with the measures

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In an important distinction from the contentious politics literature as it relates to companies, the varieties of remedy approach gives primacy to local actors, like the Great Alliance for Omoa, as they possess the local knowledge needed to engage in reflexive innovation and creative problem solving that would, perhaps, be out of reach for actors who are not embedded locally. As discussed in Chapter 4, much of the literature about the effectiveness of INGOs theorizes about leverage politics (Keck and Sikkink 1998), or the ability to influence state action toward other states or their citizens. The logic is that INGOs may be able to harness a broader network to shame state actors for wrongdoing and thereby encourage them to engage in remedial efforts or policy reform. Extant research explores whether INGOs, in the context of pressuring states, are effective in instigating change. However, corporate incentives work differently. For example, the stakeholder literature seeks to understand when and why some stakeholders, defined as those communities and individuals who affect or are affected by corporate conduct, are more effective at prompting corporate change than others. Stakeholder salience, in short, can be due to managerial preferences (Mitchell, Agle, and Wood 1997, p. 871). Building on this notion, Fransen and Burgoon (2014) find that managers’ engagement in voluntary or multistakeholder processes is positively affected by social pressure from NGOs, through public campaigns and informal efforts (p. 585). Firms may feel pressure to react to local stakeholders who can quickly and easily affect their daily operations. This literature supports the notion that victims who have access to NGOs with local knowledge may be more likely to shape corporate behavior. This logic implies that victims’ voices that are elevated by domestic NGOs may also be effective in gaining access to non-judicial remedy efforts. This is, in part, because local NGOs may have a longer time-horizon to engage than their international counterparts. Yaziji and Doh (2009) argue that NGOs will “target corporations that demonstrate most vividly the implied normative or regulative violations” (p. 89). Local campaigns are ongoing, as illustrated by the cases earlier, and can escalate with repeated instances of wrongdoing. NGOs – when seeking to garner greater support from stakeholders, to incite substantial regulatory change, and/or to seek remediation – often focus their attention on “those [firms] that fail to sufficiently conform to dominant institutional standards of appropriate behavior” (Yaziji and Doh decreed (Secretaría de Asuntos Ambientales de CAFTA-DR, 2011). There is no information as to whether the company complied with the measures; according to the IACHR, the case (MC 17–10 – Inhabitants of the Community of Omoa) is “under follow-up” (IACHR 2022).

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2009, p. 88).14 In other words, NGOs may be more likely to support victims of human rights whose abuses come from a corporation with a history of wrongdoing in the community. While INGOs may focus on a particular episode or issue area, it is unlikely they would have a sustained campaign for a very localized issue. This temporal piece is important, as the varieties of remedy approach recognizes the ongoing nature of contestation between corporations and communities. INGOs may also use different strategies and tactics that are not targeted toward improving access to remedy.15 Many of the examples throughout the book illustrate how communities aim to garner action from corporations and the state for years. Moreover, the issues at hand begin to define relationships within the community and can become politically charged. The concerns underpinning many of the claims made about corporate conduct are related to hot-button issues for local and regional politicians, such as land use and environmental protection or labor rights for those working in large-scale mines or textile factories. Thus, given how embedded allegations of corporate human rights abuse can become in local political and social structures, NGOs are best suited to elevate victims’ voices for those corporate actors with a history of abuse. Thus: H 5.3a: When victims have support from NGOs, they are more likely to have access to non-judicial remedy mechanisms, specifically when the firm has a history of abuse. H 5.3b: When victims have support from INGOs, there will be a null effect.

variables of interest Statistical analysis of the pathways described earlier provides evidence of the varieties of remedy approach. To empirically examine these hypotheses, it is first necessary to define the key variables of interest for each hypothesis and their expected effect (see Table 5.1 for a summary). The databases used in this analysis, as well as the model specification, are further discussed in Appendix C.

14

15

Firms could be pressured to respond to demand from “conscientious consumers” or naming and shaming campaigns, but the effectiveness of such activism varies across industries (Bartley et al. 2015). See Van Wijk, Stam, Elfring, Zietsma, and den Hond (2013) for a discussion about the ways movements, which might include INGOs and NGOs, have varying tactics (e.g. conflictual or collaborative approaches) based on their broader strategy.

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table 5.1. Access to non-judicial remedy: Hypotheses, variables, and expected effect Hypotheses

Independent Variables

Dependent Variables

Expected Effect

H 5.1: Weak Institutions ➔ More Access to NJ Remedy

Rule of Law

NJ Remedy

+

H 5.2a: Profitable Firms ➔ More Access to Corporateled and State-led NJ Remedy

Firm Profit

Corporate-led NJ Remedy and State-led NJ Remedy

+

H 5.2b: Large Firms ➔ More Access to Corporateled NJ Remedy and Less Access to State-led NJ Remedy

Firm Size

Corporate-led NJ + (corporate-led) Remedy and – (state-led) State-led NJ Remedy

H 5.3a: NGO Support*Past Firm Abuse ➔ More Access to NJ Remedy

NGO Support NJ Remedy NGO Support * Past Firm Abuse

+

H 5.3b: INGO Support ➔ No Effect on NJ Remedy

INGO Support NJ Remedy

Null

Dependent Variables This chapter provides an empirical assessment of the varieties of remedy approach, and specifically, victims’ pathways to non-judicial remedy mechanisms. The first dependent variable is NJ Remedy, which captures whether a non-judicial remedy mechanism, of any type, occurred at all. The first pathway – Institutional Strength (H 5.1) – suggests that weak rule of law will improve victims’ access to non-judicial remedy mechanisms, generally. For the remaining sets of hypotheses (H 5.2a/H 5.2b and H 5.3a/H 5.3b), the literature suggests that the Corporate Characteristics and Elevating Voices pathways may play out differently for corporate-led (Corp NJ Remedy) versus state-led non-judicial remedy (State NJ Remedy).16 16

As mentioned earlier, other actors are able to initiate non-judicial remedy also, but because the bulk of non-judicial remedy efforts are initiated by state or corporate actors, this chapter focuses on explanations for those two categories. Moreover, there were often too few observations in the other categories to facilitate multivariate analyses, though future qualitative research is needed to better understand when and why victims’ groups or other organizations move forward with non-judicial remedy efforts.

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Independent Variables As we saw in Chapter 4, scholars recognize that the broader institutional context in which victims seek redress shapes their ability to access non-judicial remedy mechanisms. The varieties of remedy approach asserts that victims are more likely to have access to non-judicial remedy when rule of law is weak (H 5.1). Though, weak rule of law will not inspire corporations to act. This claim contrasts with the literature on political CSR and the assumption made in the UNGPs about the possibility of corporations initiating non-judicial remedy as an alternative source of remediation in weak institutional contexts. For this set of hypotheses, as in Chapter 4, I use the Freedom House (2019, p. 14) measure of Rule of Law, which indicates whether there is an independent judiciary and equal treatment of the population on a scale of 0 (weak) to 16 (strong). Freedom House measures the rule of law by assessing the independence and freedom of the judicial branch from the executive branch or other political, economic, or religious influences. It also considers whether due process prevails in civil and criminal proceedings, that is, whether defendants’ rights, including the presumption of innocence until proven guilty, are protected. This rule of law measure also captures whether citizens enjoy protection from the illegitimate use of physical force, and whether the laws, policies, and practices in a given country guarantee equal treatment of various segments of the population. For the next set of hypotheses, the varieties of remedy approach maintains that victims’ access to non-judicial remedy mechanisms will be a function of the firm’s resources and size (H 5.2a and H 5.2b). Victims of abuse by profitable firms are more likely to have access to non-judicial remedy mechanisms, whether they are initiated by the firm or the state. Profitable firms have the resources to engage with external stakeholders and states, and due to pressure from civil society, are more likely to engage firms in state-led non-judicial remedy, often including administrative proceedings or fines. With regards to firm size (H 5.2b), the literature submits that large firms have the organizational capacity to engage with external stakeholders, and thus, will be more likely to initiate corporate-led non-judicial remedy. The state, however, may be less likely to engage in state-led non-judicial remedy mechanisms with large firms, as they may possess influence and political weight. The analysis draws on data from Orbis, a propriety dataset, that has the most comprehensive coverage of firm-level data around the world (see additional detail in Appendix C). The analysis uses two key variables from Orbis: Profits, or the annual profit margin for the firm, and Size, or the logged assets of the firm, which is a commonly used approximation for firm size. These variables are the same as those used in Chapter 4 for consistency across the model specifications.

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The final hypotheses (H 5.3a and H 5.3b) suggest that victims will be more likely to access non-judicial remedy mechanisms when their voices are elevated by NGO Support, but not INGO Support. I use data from the CHRD to determine whether NGOs and INGOs provide substantive support to victims. The varieties of remedy approach, however, suggests that the effectiveness of local NGO support will be a function of the firm’s record of abuse. Thus, the models also include an interaction term to assess the roles played by NGOs and INGOs when engaging with historically “bad actors” (NGO*Past Abuse and INGO*Past Abuse). The Past Abuse measure is a cumulative count of previous allegations associated with each firm included in the CHRD.

Control Variables As in all models, controls are needed to ensure the variation in access to remedy is not associated with unobserved differences across the sample. For this reason, I include several control variables that may influence access to non-judicial remedy mechanisms. Control variables mirror those included in the previous chapter. To control for state-level democratic quality, each model contains annual data for the quality of democracy (Polity2 from the Polity IV project), as is standard in political economy analyses. To control for state-level economic variation, I include corresponding annual data for GDP Growth and GDP per Capita, both extracted from the World Development Indicators. I also include controls for the state’s respect for human rights, State Respect for Human Rights, from the Political Terror Scale (Gibney, et al. 2021). Given the concern that reliance on specific industries could shape access to non-judicial remedy, I include the annual percentage of each country’s GDP that is from oil (Oil GPD) or minerals (Mineral GDP), as well as the percentage of manufacturing exports as a percentage of merchandise exports (Manufacturing Exports). Since NGOs and INGOs can also be involved to a lesser extent (i.e. simply reporting the allegation), I also control for NGO Reporting and INGO Reporting of the allegation. All models also consider whether Trials were pursued, as we would be less likely to see non-judicial remedy if formal accountability was already sought. Moreover, the models include controls that capture whether other actors (e.g. firm, state, and civil society) initiated a non-judicial remedy mechanism, depending upon the dependent variable in question. Since these trends may differ across industry and time, industry-level

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indicators and year-fixed effects and robust standard errors are included.17 As noted earlier, data sources, measurement, and model specifications are discussed more thoroughly in Appendix C.

findings: pathways to non-judicial remedy mechanisms In this section, I provide a discussion of the quantitative findings and add texture to the numbers by drawing from specific instances in the CHRD of corporate human rights abuse and efforts to access non-judicial remedy. Given the dearth of quantitative data in business and human rights research, this analysis identifies the contours associated with access to remedy, where previous scholarship could not, and how each of the three pathways function. Figure 5.1 depicts a visualization of the regression coefficients for all models associated with each pathway included in Appendix C; the dot represents the size and direction (positive or negative) of the coefficient and the lines are the standard errors. Where the lines do not touch zero, that variable is statistically significant. Institutional Strength As outlined in Chapter 2, institutional strength is foundational to access to remedy and this finding is supported by the empirical data. The analysis shows that victims are more likely to have access to non-judicial remedy in countries with weak institutions. As the varieties of remedy approach suggests, however, this is not because corporations are stepping into the fold, but rather because other branches of the state are engaging in non-judicial remedy mechanisms when the judiciary is compromised. Figure 5.2 illustrates this relationship graphically; rule of law is negatively correlated with access to non-judicial remedy, meaning that when rule of law is strong, non-judicial remedy is less likely. In Appendix C, Table 1 illustrates that the negative relationship holds across specifications, though it is less precisely estimated for corporate-led nonjudicial remedy. It is intuitive that states with weak rule of law would engage in non-judicial remedy. There are numerous examples in which state agencies work to find a resolution with affected parties by suspending activities, issuing fines, or requiring companies to comply with the law. For example, after a copper concentrate spill by Companía Antamina in the Ancash region of Peru, which is owned by BHP Billiton, Xstrata, Tec, and Mitsubishi Corporation, the Peruvian environmental minister, Manuel Pulgar-Vidal, fined the company 17

For each model, the Hausman test was not significant, thus suggesting that a fixed-effects model is appropriate for this analysis.

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figure 5.1. Model visualization, varieties of remedy pathways for non-judicial remedy

Pr(NJ Remedy)

1

.5

0 0

1

2

3

4

5

6

7 8 9 Rule of Law

figure 5.2. Marginal effect, rule of law

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10

11

12

13

14

15

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$77,000 for the spill, reduced from an initial call of $13 million (Associated Press 2013).18 In another case, land disputes between Minera Afrodita and community members in the Amazonas providence of Peru led the country’s mine and energy regulatory agency (Organismo Supervisor de la Inversión en Energía y Mineria, OSINERGMIN) to suspend the company’s activity until it could show surface rights to the land (Salazar 2010). Though this was only a temporary suspension, it illustrates the role state agencies can play in seeking to resolve disputes.19 In Panama, for example, the Colombian infrastructure construction company, Vergel and Castellanos, faced accusations by the Union of Construction and Similar Workers (Sindicato Único de Trabajadores de la Construcción y Similares, SUNTRACS) of not complying with health and safety regulations for their employees. After the allegation emerged, company leaders requested that the Ministry of Labor carry out an inspection. The ministry found “anomalies” and requested a “partial closure” until the security measures were met. The Minister of Labor, Alma Cortés, “promised to enforce the law, and reiterated that the partial closure of the company will continue in effect until the anomalies are corrected” (Redacción Digital La Estrella 2009). These examples, among others, illustrate that non-judicial remedy mechanisms are used by state actors when rule of law is weak. Such experimentation and flexibility on behalf of the state is illustrative of the arguments from pragmatism and agonism that set the stage for the varieties of remedy approach–these cases illustrate the role of experimentation, reflexive innovation, and constructing institutions that can absorb contestation. As the 18

19

CHRD unique ID: 1704COT0007. As discussed in Chapter 1, access to remedy makes no claims about the quality of the remedy. In this instance, shortly after the leak of 45 tons of “slurry” and a cloud of toxic dust, 350 villagers (of which 69 were children) were treated for headaches, respiratory tract bleeding, nausea, and vomiting, according to the mayor’s office (Associated Press August 16, 2012). Respiratory tract trauma is worse for children who usually breathe two to three times for every breath an adult takes. Children in the area lost weight with constant nose bleeds and nausea. While the mining company agreed to pay hospital bills for a certain period, those who were treated were denied their medical records and parents were not told whether their children had toxin levels over legal limits (Associated Press August 16, 2012). The Associated Press reported that the company held a meeting with the community, at which the company’s Executive President, Abraham Chahuan, first thanked the community for their assistance (many community members tried to clean up the spill before they realized it was toxic) and then continued, “I only want to say that accidents occur everywhere in our daily life” (Associated Press August 16, 2012). CHRD unique ID: 1704MNA0024. One source reported that while the Regional Government of Amazonas was the body that originally issued a permit, they later nullified the firm’s permit to mine gold in 2016 (Regional Management Resolution 020-2016-GRA/GRDE of August 23, 2016) due to lack of free, prior, and informed consultation (SERVINDI 2016).

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.5

Pr(State NJ Remedy)

.4

.3

.2

.1

0 -50

-40

-30

-20

-10 0 10 Firm Profit Margin

20

30

40

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figure 5.3. Marginal effects for state-led NJ remedy in Corporate Characteristics pathway

varieties of remedy approach outlines, however, corporate actors are not incentivized to step into the fold; rule of law – weak or strong – does not incentivize companies to act. Corporate Characteristics The second pathway to non-judicial remedy considers firm profitability and size. The data show that states are more likely to opt for non-judicial remedy as a mechanism to resolve past abuses when a firm’s profit margin is high (see Figure 5.3). For example, Pluspetrol Norte,20 also discussed in Chapter 4, took over oil extraction operations in 2000 from U.S.-based Occidental Petroleum Company in the territory of the Achuar indigenous communities in Loreto, Peru (Mortenson 2012).21 Pluspetrol, a company founded in Argentina but also registered in the Netherlands, continued to dump oil and waste materials from its operations into Atiliano Lake, as its predecessors had done since 1971 (Mortenson 2012; Info Región 2012). The company dumped an estimated

20

21

CHRD unique ID: 1705PNO0009. Pluspetrol Norte is a subsidiary of Pluspetrol Resources Corporation, B.V. now. This area was originally called Block 1AB and was first developed by Occidental Petroleum in the 1970s. The “North Peru Pipeline was built in 1974 to take the oil from the rainforest over 1,000 kilometers up and across the Andes to the desert coast of Piura at the port of Bayova” (Peruvian Times 2015).

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three billion barrels of toxic waste into the lake as they extracted oil from the area, better known as Block 192 (Hill 2017). A recent report documents that 189 oil spills occurred in this area between 2000 and 2019, which Pluspetrol managed between 2000 and 2015 (León and Zúñiga 2020). The Federation of Native Communities of the Corrientes River (Federación de Comunidades Nativas del Río Corrientes, FENACO) and the Petroleum Observatory of the Northern Amazon (Observatorio Petrolero de la Amazonía Norte, PUINAMUDT) reported that the company’s dumping practices resulted in extensive water and land pollution where the Pucacuro and Pavayacu communities live (Mortenson 2012; Info Región 2012). As early as 2006, the General Directorate of Health (Dirección General de Salud Ambiental, DIGESA) found that over half of the population had high levels of heavy metals in their blood (Info Región 2012).22 After initial negotiations with FENACO, Pluspetrol agreed to clean up the lake, with community members and state authorities supervising the process. In addition, the company agreed to establish a “roundtable” (mesa de diálogo) that would work to determine compensation for environmental damages (Mortenson 2012; AIDESEP 2012). Multiple government agencies (MINEM, OEFA Local, Administración del Agua, Defensoría del Pueblo of Loreto, and the Nauta Provincial Prosecutor’s Office) were involved in organizing a series of meetings to discuss the allegation, along with the local community and government representatives (MINEM 2012). The negotiations stalled as the parties could not agree on the amount Pluspetrol should pay for the environmental damages (Defensoría del Pueblo 2013). In March 2015, however, community leaders and representatives of the federal and local government signed the Lima Act (Acta de Lima) – a landmark achievement that recognized the indigenous communities’ demands, affirmed that the government would assume responsibility for remediation, and committed to ensuring that the area would be cleaned up by the operating company, Pluspetrol. The Lima Act also established a seed fund of 50 million soles (approximately US$15 million) through the Contingency Fund for Environmental Remediation, created by Law 30321 (Prado 2020). Others noted that this fund was established, reportedly, for

22

Subsequent studies have confirmed the pervasiveness of the contamination and the deleterious effects on residents’ health. In 2012, Peru’s Environmental Assessment and Enforcement Agency (OEFA) confirmed high levels of heavy metals in the waters and sediments in the Pastaza, Corrientes, and Tigre basins; in 2016, the Ministry of Health’s Toxicology and Epidemiology study found that 57 percent of the indigenous population in those areas had levels of lead that surpassed the World Health Organization’s standards; and in 2019, the Health and Environmental Risk Assessment group from the Ministry of Energy and Mines found that thirty-two affected sites in the area could generate risks of cancer and other diseases (Prado 2020).

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“when the state is unable to enforce the obligation on the operating company to clean-up” (Hill 2017). Even so, the Peruvian state has played a significant role in bringing Pluspetrol to the table. Though as discussed in Chapter 4, the company is currently trying to liquidate its assets and leave Peru.23 During this time period, Pluspetrol was reporting a profit margin of approximately 31 percent. Other examples include labor disputes that are, perhaps, more straightforward. In Colombia, workers at the Cerro Matoso mine went on strike in February of 2008.24 The strike was due to the prevalence of subcontracting as well as health, safety, and salary concerns (Reuters 2008). The strike ended in March of 2008 when the workers and company representatives came to an agreement, which included improving health and safety in the mine and also addressed contracts and higher salaries (IndustriALL 2008). The company reported a profit margin of 63 percent that year. Of course, the other feature of this finding is that states are less willing to initiate non-judicial remedy when companies are not financially strong. In April 2010, Medoro Resources,25 which merged with Gran Colombia Gold in 2011, acquired the assets of Frontino Gold Mines in Segovia, Antioquia, Colombia (Radio Santa Fe 2010). Medoro is responsible for dumping the mercury used to process gold into the Cauca and Magdalena rivers, as well as into other water sources. The contamination poses a threat to fish and to communities living nearby (López 2010). The state has done nothing nor has Medoro offered a response; when the allegation occurred, the company was reporting 10.2 percent losses. In Mexico, eleven farmers were poisoned and died during the cleanup of a sewage pump station of the National Water Commission (Comisión Nacional del Agua, CONAGUA), loaded in Atotonilco, Jalisco. The ejidatarios, from seven local ejidos, had been routinely cleaning it for over twenty years to help facilitate land irrigation and had not fallen ill before. Municipal authorities and neighbors suspect that the cause was toxic waste dumped into the water 23

24 25

Note that, as described in Chapter 4, issues associated with this case are now being heard in both the Dutch National Contact Point and the International Chamber of Commerce (see Footnote 21 in Chapter 4; see also Indigenous Federations vs. Pluspetrol 2021). Interestingly, if Pluspetrol can liquidate their operations in Peru, the Peruvian State may be responsible, as Lot 192 is now operated by Petroperu, a state-owned firm (Peru Support Group 2021). A 2019 government study showed that at least 57% of the indigenous people living on and around Block 192 had suffered from pollution: 57% had been exposed to high levels of lead, 45.9% of children showed unacceptably high levels of arsenic in their blood, and 25.6% exhibited high levels of mercury (Peru Support Group 2021). CHRD unique ID: 1704CEO0026. CHRD unique ID: 1704MEO0018.

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source by the Ecoltec company.26 Ecoltec, a hazardous waste recycler, is in the neighboring municipality (López 2009). Ecoltec assured communities and officials that it does not dispose of waste in water channels.27 Neither the state nor the company, however, took further action to address the community’s concerns. In 2009, Ecoltec reported nearly a 10 percent loss. While profit facilitates state-led non-judicial remedy firm size is positively correlated with corporate-led non-judicial remedy and makes state-led efforts less likely. This pathway also asserts that when firms are large, victims are less likely to have access to state-led non-judicial remedy. Many of the allegations in the CHRD involve large companies whose supply chain involves unethical business conduct. For example, Carrefour, a French multinational, was accused of buying products from Nuestra Huella S.A., operating in Argentina, which was found to use child and slave labor.28 A seven-year-old boy, Ezequiel Ferreyra, was working on a farm using agrochemicals and was alleged to have developed cancer as a result (El Litoral 2010). On November 16, 2010, the boy died (Perfil 2010). No action was taken against Carrefour, whose 2008 assets, a proxy for firm size, were around $64.5 million, approximately 50 percent larger than the sample average of $41.3 million. In another case, the British multinational grocer, Tesco, was found to purchase pineapples from Grupo Acón in Costa Rica, the country’s largest pineapple producer. Tesco’s supplier unfairly targeted employees after they created a union in 2006 (Lawrence 2010). The employees who joined the union (Sindicato de Trabajadores de Plantaciones Agrícolas, SITRAP) were fired and those that were rehired had their wages reduced by 40 percent and had to agree to leave the union (Make Fruit Fair, n.d.).29 Victims had no access to remedy efforts, while Tesco’s assets that year were close to $70 million. The 26 27

28 29

CHRD unique ID: 2703ECT0015. Ecoltec (now rebranded as Geocycle Mexico) is owned by Holcim, a large Swiss cement manufacturer. In an internal document, the company reports that there was “no relation of Ecoltec to this tragic accident” and notes that CONAGUA confirmed this in an official report after inspecting the facilities (Holcim n.d.). Additional reporting, however, shows that community protests prohibited the plant from operating (Godoy 2010). A health survey was conducted by the Center for Diagnosis and Alternatives for Those Affected by Toxic Substances (Centro de Diagnóstico y Alternativas para Afectados por Tóxicos, CEDAAT), which found that 86 percent of the sample (262 of 305 individuals) had symptoms of acute intoxication (Godoy 2010). CHRD unique ID: 723CRF0003. CHRD unique ID: 101CHQ0013. Tesco has sought to improve their policies around remedy (Tesco 2022) and made efforts to bring representatives from the union and the supplier together, but in March 2021, the union SITRAP submitted another request to Tesco leadership to intervene, as the company had fired the union leader and threatened other union members (SITRAP Letter March 21, 2021).

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figure 5.4. Marginal effect, size and state-led NJ remedy (left). Marginal effect, size and corporate-led NJ remedy (right)

left side of Figure 5.4 shows the relationship between the size of the firm and access to state-led non-judicial remedy mechanisms. Alternatively, as indicated on the right side of Figure 5.4, victims are more likely to have access to corporate-led non-judicial remedy when firms are large. In Bolivia, for example, Repsol YPF, a fossil fuel company based in Madrid, began operating in El Chaco, which is the home of the indigenous Guaraní people.30 Yet, the company failed to conduct prior consultations when its operations began in 1999. Since that time Guaraní leaders – Assembly of the Guaraní People of Itika Guasu (La Asamblea del Pueblo Guaraní de Itika Guasu, APGIG) – have stated that environmental damages through deforestation and soil erosion are not only disruptive to the community but have also taken place on sacred lands (Greenpeace España 2009). Though this is an abridged version of this case (see Anthias 2018 for a detailed analyses), Repsol YPF eventually created a “Public Relations Policy with Indigenous People” to address the concerns outlined by the community and detailed in a report by Oxfam. The company worked to align their internal policies to better abide by the ILO Convention 169 and with the UN’s Declaration of Indigenous Rights (Europa Press 2009), while it also sought to meet the requirements of ISO 26000 on Social Responsibility (Macías 2013,

30

CHRD unique ID: 1705REP0013.

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p. 17). It ended a decade-long confrontation “in which the oil company had repeatedly rejected Guaraní demands for consultation and compensation” (Anthias 2017, p. 274) by signing a contract with the Guaraní Assembly to create a “Itika Guasu Investment Fund” to create a $14.8-million fund that would support health, housing, public infrastructure, among other initiatives.31 Repsol YPF’s assets around this time exceeded $68 million. In another case, Unilever, whose assets at the time approached $60 million, was alleged to have purchased leather from a Brazilian supplier, Bertin, which practices deforestation of the Amazon and engages in the forcible displacement and forced labor of indigenous communities (Greenpeace 2009).32 Unilever signed the New York Declaration on Forests in September 2014 – along with governments, multinational companies, and civil society organizations – in which the company pledged to cut forest losses in half by 2020 and reduce carbon emissions to zero by 2030, thereby reducing carbon dioxide emissions by billions of tons. While deforestation has increased during that time, Unilever has made progress; they aim to have a deforestation-free supply chain by 2023 and note they will terminate relationships with suppliers who engage in deforestation (Unilever n.d.). Moreover, Unilever partnered with the World Resources Institute’s Global Forest Watch and with other companies “to develop a radar monitoring technology to detect deforestation in near real-time and with greater accuracy” (Unilever 2020). Elevating Voices The final pathway of the varieties of remedy approach focuses on elevating voices and maintains that support from NGOs will be generally more effective 31

32

Anthias (2018) describes this case in wonderful detail; there are many threads of her work that resonate with the arguments made herein. Anthias explains the transformation in framing of “indigenous autonomy” that took place over the course of their contestation with the company, underscoring how the Guaraní leaders originally sought recognition of formal indigenous autonomy from the state, but later argued that the formal recognition of their land by Repsol was “real autonomy” (p. 145). While I do not aim to make normative claims about this transformation, this example illustrates how seemingly immutable ideas – like autonomy – change over the course of contestation and shape governance efforts. Second, this case also illustrates the perennial nature of contestation. In 2011, the president of APGIG suggested the fund from Repsol is “part of our long-term funding strategy, which will permit us to carry forward our own development. . . This guarantees our real autonomy and that of our children” (Anthias 2018, p. 145). By 2014, however, community members had suspicions of “corruption and fiscal mismanagement” and were concerned about the Guaraní leadership’s “combative and isolationist stance” (pp. 147–148). An alternative leadership faction formed, which was supported by local state agencies, and, by 2016, was engaged in “a lengthy legal battle” with the Guaraní leaders. CHRD unique ID: 722UNL0015.

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figure 5.5. Marginal effect, INGO and state-led NJ remedy (left). Marginal effect, NGO*Past Abuse and state-led NJ remedy (right)

in securing access to non-judicial remedy mechanisms for the victims they support when the company in question has a history of abuse. This is because NGOs have local knowledge and are embedded in local institutions, which allow for reflexive innovation and creative solutions to be pursued over a longer time horizon. This contrasts with the role INGOs can play in this context. The quantitative analysis supports the varieties of remedy approach, showing that in the context of business and human rights, INGOs have a null effect in helping victims secure non-judicial remedy mechanisms.33 INGO support, rather than a null effect, actually decreases the likelihood victims will have access to state-led remedy mechanisms. While the literature suggests a positive role in pressuring states to shape its respect for human rights, this ability does not translate to the business and human rights context. This finding is illustrated on the left side of Figure 5.5. When victims have support of NGOs, however, they are more likely to gain access to state-led non-judicial remedy mechanisms, but only when the firm in question has a history of abuse. When NGOs seek to elevate the victims’

33

Some of the contentious politics and social movements literatures suggest the combination of NGO and INGO activity would be effective in inciting change, but the results were null for that combination, as well.

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voices, in general, their presence has no effect on victims’ access to state-led or corporate-led non-judicial remedy. Instead, it is only when confronting firms with a history of abuse that NGOs facilitate victims’ access to state-led nonjudicial remedy, as represented on the right side of Figure 5.5. Though less precisely estimated as indicated by the large standard errors, this result corroborates the findings in Chapter 4, highlighting the important role NGOs play in helping victims access both judicial and non-judicial remedy mechanisms. Those firms with a history of abuse are vulnerable to state-led non-judicial remedy mechanisms when NGOs can help elevate victims’ claims; this represents yet another pathway to remedy. Interestingly, support from INGOs and NGOs has no statistically significant effect on access to corporate-led non-judicial remedy. One example of this pathway comes from northern Peru, where Minera Yanacocha S.R.L. operates a gold mine as a joint venture between U.S.-based Newmont Mining and the Peruvian company, Buenaventura. Since the Yanacocha project began in the 1990s, just outside of Cajamarca, the company and the community have had a long, complicated, and conflict-ridden relationship. Concerns over the company’s operations grew in 2000 when a truck contracted by Yanacocha spilled 151 kilograms of mercury in Choropampa, Cajamarca. Poor practices led to the spill, and misinformation coupled with a slow, ineffective response aggravated its effects (CAO 2000). In 2004, Peru’s Ministry of Energy and Mines (El Ministro de Energía y Minas, MINEM) authorized Yanacocha to begin work on the expansion into Cerro Quilish, with an estimated 3.8 million ounces of reserves (Perlez and Bergman 2010). GRUFIDES, a Peru-based NGO that offers legal assistance and other support to landholders, became an enduring force around the effort to thwart future expansion. As the project began, hundreds of campesinos blockaded the road leading from Cajamarca to the mine. Police guarded the mine with tear gas and force, but the blockade continued, and protests spilled into the city with a regionwide strike and demonstration. On August 2, 2006, in the midst of community protests over water quality and Yanacocha’s non-compliance with an agreement from the prior year, Isidro Llanos, a local farmer, was shot and killed. Members of the security firm hired by the mining company, Forza (part of Securitas), and the police were involved in the conflict, but it has yet to be determined which party fired the shots.34 Later that month residents continued to protest and block the 34

In December 2010, the Superior Court of Cajamarca dropped the charges against three policemen who were allegedly involved, stating that there was not enough evidence to incriminate them (Hiruelas 2015).

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roads leading to Yanacocha, demanding further details surrounding Mr. Llanos’ death, measures to protect local water supplies, and social investment programs. The company reported the six-day blockade, which briefly shut down the mine, caused $1.8 million a day in losses, while the state lost an estimated $615,000 a day in tax revenue (Salazar 2006). In response, President García sent a high-level commission to the region in September, the result of which was “an 11-point agreement signed by the representatives of Combayo (a community within the Cajamarca province), the government, and the mining company, which includes a promise to build water purification plants, as well as a commitment to carry out studies of the local water supply” (Salazar 2006). While this agreement has neither satisfied all actors nor addressed the loss of life, an effort by the government, company, and communities to engage in some type of agreement is notable, especially given the long track record of violence and conflict around Yanacocha’s operations. Unfortunately, the agreement did not suffice; in November 2006, community leader Edmundo Becerra Palomino was assassinated near his home. Thereafter, protests halted both of Yanacocha’s expansion attempts, one of which resulted in an estimated loss of $4.8 billion (The Economist 2011). In 2012, some 78 percent of Cajamarca’s population opposed the Conga expansion (GNAD 2012) citizens in Cajamarca fly flags and post signs that state their views clearly, “Agua sí, Conga no.” In 2016, Newmont announced in its annual filing with the U.S. Securities and Exchange Commission (SEC) that it would abandon the Conga expansion project (Jamasmie 2016).

conclusion The varieties of remedy approach requires a focus on how contestation shapes governance outcomes. This chapter explores how the characteristics of confrontation (e.g. who participates and in what setting) shape access to nonjudicial remedy in the business and human rights context. Agonistic scholars are open to new institutional pathways, tacitly embracing the tenet of pragmatic scholarship that advocates for reflexive innovation. Through this lens, non-judicial remedy provides an interesting empirical setting that builds on existing theory. This chapter’s findings are summarized in Table 5.2. The Institutional Strength pathway illustrates that victims of corporate human rights abuse are more likely to have access to non-judicial remedy when rule of law is weak. Though many business and human rights scholars have written about non-judicial remedy as a potential complement in contexts with weak institutions, I do not find empirical support that companies will step

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table 5.2. Access to non-judicial remedy: Hypotheses and findings Hypotheses

Expected Effect

Findings

H 5.1: Weak Institutions ➔ Increased NJ Remedy

+

Confirmed for state-led NJ remedy.

H 5.2a: Profitable Firms ➔ Increased Corporate-led and State-led NJ Remedy

+

Confirmed Partial. State-led NJ remedy is more likely for more profitable firms. Not confirmed. Profit has no effect on access to corporate-led non-judicial remedy

H 5.2b: Large Firms ➔ Increased Corporate-led NJ Remedy and Decreased State-led NJ Remedy

+ (corporate-led) Confirmed – (state-led)

H 5.3a: NGO Support*Past Firm Abuse ➔ Increased Access to NJ Remedy

+

Confirmed Partial. State-led NJ remedy is more likely when NGO support exists for firms with a history of abuse. Not confirmed. NGO support has no effect for corporate-led nonjudicial remedy

H 5.3b: INGO Support ➔ No Effect on NJ Remedy

null

Not confirmed. INGOs have a negative effect on access to state-led remedy. Confirmed. INGO support has no effect for corporate-led non-judicial remedy

into the fold. Instead, the link between weak rule of law and access to nonjudicial remedy mechanisms relies on other facets of the state to facilitate remedy. Firms, as the varieties of remedy approach suggests, are not motivated to engage in non-judicial remedy mechanisms due to a country’s institutional strength. The Corporate Characteristics pathway highlights how power and influence (understood through a political economy lens by analyzing corporate profitability and size) affect access to non-judicial remedy. In terms of state-led nonjudicial remedy mechanisms, victims are more likely to have access when corporations are profitable or relatively small. In contrast, victims are more likely to access corporate-led non-judicial remedy when the company in question is large, indicating that corporate capacity may play a role in facilitating access to remedy efforts that take place outside of the judiciary.

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Finally, the Elevating Voices pathway confirms that who is involved in the contestation matters greatly. NGO engagement is more likely to lead to state-led non-judicial remedy, but only when the firm has a history of abuse. In these instances, NGOs are able to elevate victims’ voices and states are more likely to engage, given the heightened tension between corporations and their communities after repeated abuses occur. While much of the literature emphasizes the ability of INGOs to elevate local voices, this analysis shows these efforts do not translate into access to non-judicial remedy for corporate human rights abuses. While the varieties of remedy approach expected a null effect, it shows that INGOs have a negative effect on access to state-led non-judicial remedy. Though accountability is important to many INGOs, one might imagine this finding could be because many INGOs are not specifically focused on remedy provision, though additional research is needed to better understand this finding. Neither INGO nor NGO involvement, has a statistically significant effect on victims’ access to corporate-led non-judicial remedy mechanisms. While the pathways outline which characteristics of contestation are more or less likely to enable access to non-judicial remedy, I want to bring the discussion back to the varieties of remedy approach developed in Chapter 2. Pragmatism recognizes that, in an effort to manage interdependencies, outcomes may be suboptimal because institutions are dealing with multiple, sometimes contrasting, logics. Actors may be temporarily satisfied, only to discover a new conflict that needs resolution. We observe this throughout this chapter – while victims have access to remedy, rarely is the situation remedied. I opened this chapter with the story of the San Juan Cotzal indigenous community’s negotiation with Enel Green Power in Guatemala. This situation illustrates the tacit tension within the business and human rights literature – the competing norms of economic growth with respect for human rights. Archbishop Ramazzini, who was the witness of honor for the community, explained it this way: “On the one hand there are the interests of the company. It is logical that, since they came to do business, they can recover the investment and earn money. This collides with the interests of indigenous communities who, rightly, want a fair and equitable share of the economic benefit of [the dam], and that this is not done by imposition, but according to what the company believes it means to help the communities. That is where we have not yet found the meeting point” (Escalon 2012b). This quote is insightful because, like pragmatic scholars, it demonstrates how contestation is an endogenous, iterative process between actors and their environment; and it conveys the coexistence of multiple, or even contradictory, logics and, at times, the reflexive innovation needed to find common ground.

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Agonism applies to this case, too. Non-judicial remedy efforts allowed for contest and confrontation, but in a way that remained civil. As noted at the outset of this chapter, Archbishop Ramazzini and company representatives reflected that though unsuccessful both parties felt respected. This example also highlights that the “agreement” is not always an end point, as it prompts new actors to engage in new rounds of contestation. The 2012 agreement between Enel and (some) members of the community was met with discord by others. Equilibria are ephemeral and suboptimal; they catalyze new groups to act and engage in new rounds of contestation. As I have illustrated throughout the book, confrontation is ongoing. And yet, to what end? Agonism draws our attention to the potentially legitimating role of contestation for democracies; those democracies that can absorb contestation are, the argument goes, stronger and more robust. In this chapter, the conditions under which victims have access to nonjudicial remedy have been identified, yet we are left with the unsettling feeling that, in some cases, the issue was only temporarily resolved, if at all. These findings prompt additional questions, explored in the following chapter: How does the agonistic observation about contestation and its legitimating role play out over the long term? What type of remedy mechanisms strengthen democracy, as agonistic scholars might suggest? Are some mechanisms, or institutional designs, better than others in promoting greater respect for human rights and improving civic empowerment? Or, do they simply lack the ability to do so? These questions are addressed in the next chapter.

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6 Does It Work? How Contestation Shapes Democratic Practices

While Chapters 4 and 5 highlighted potential pathways to remedy mechanisms, this chapter seeks to understand the broader effects of contestation and governance on democratic practices. Agonistic scholars contend that contestation can have a productive function for institutional strength and democratic practices. This chapter provides an empirical test of that claim. Recall from Chapters 1 and 2 that agonism developed in contrast to Habermasian deliberative democracy which relies heavily on consensus making. Agonism, alternatively, suggests that consensus is suboptimal and ephemeral; one decision will inevitably stimulate new groups to take action in pursuit of a different or modified goal. What is constant, they assert, is contestation. The application of agonism in the context of victims’ access to remedy for corporate human rights abuses is captivating because of the perennial tension observed between economic growth and human rights. Victims of corporate human rights abuse, even those who have access to remedy mechanisms, are rarely granted outcomes that explicitly hold corporations accountable for wrongdoing. What the CHRD shows is that the act of contestation is ubiquitous; the effect of accountability, if any, warrants its own stream of research.1 When one engages in contestation, the act of engagement can shape one’s perception of their adversary and perhaps of themselves, as well. Agonism turns our attention to the importance of transforming antagonistic engagement into agonistic respect among divergent groups (Mouffe 2013, p. 63). Agonism allows us to focus on the process of contestation and assess whether that act – the act of being heard and contesting abuse – shapes institutions and rights more broadly. 1

Note, however, that recent research has shown a deterrent effect of corporate accountability efforts (see Schrempf-Stirling and Wettstein, 2017; Wettstein 2020), though greater analysis exploring how corporations perceive risk would be helpful in futhering this line of inquiry.

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In Peru, for example, colleagues and I conducted fieldwork in Arequipa where a mining company was faced with a common scenario in extractives industries: when seeking the community’s approval for an expansion project, protests emerged. Demonstrations against the extractive industry in Peru are so prevalent and problematic that in 2006 the government began to track them. As of July 2020, there were 192 conflicts, of which 142 were active (Defensoría del Pueblo 2020). In response to community protests, most mining companies promise jobs and seek to improve local infrastructure by constructing roads, building schools, or hospitals. They respond in a way that is often well meaning, but it is meant to pacify, rather than engage, community members who oppose their work. The company of interest, Freeport McMoRan (“Freeport”), sought an entirely different pathway, which is particularly surprising given its poor reputation internationally. We find that Freeport came to two relatively unorthodox conclusions that are in line with agonistic business responsibility (Avant, Finn, and Olsen 2020). First, business leaders recognized they must respect peaceful protest – and not respond negatively or defensively – to avoid further unrest. The company officials engaged in what one interviewee referred to as “rituals” for over six months, whereby business leaders recognized that political leaders needed to show distance from the negotiations to demonstrate that they had not been co-opted by the mine. The company needed to simply accept public criticism and resist the urge to respond. Second, they transformed what was a very antagonistic set of interactions into agonistic respect, whereby they sought to find common concerns, rather than doubling down on traditional types of community engagement (e.g., hosting events with company-branded gifts, promising jobs, embarking on a public relations campaign). Freeport’s leadership recognized the importance of the process for all parties and engaged in a meaningful exchange of ideas with community members – most of whom were adamantly against the expansion – to better understand their issues at hand (Avant, Finn, and Olsen 2022). At the forefront was the Front for Development and Integration of the North Cone (Frente de Defensa de los Intereses del Cono Norte, FREDICON), which began as an organization seeking to help low-income families obtain land and homes through a process of informal land registrations. They were also concerned about water access, which was a common worry for Freeport as mining operations require vast amounts of water to process recovered ore. Though we provide greater detail and analysis elsewhere (Avant, Finn, Olsen 2022), this work shows that by legitimizing adversaries’ voices and creating spaces to engage in a meaningful fashion, Freeport was able to complete not just one expansion, but two, which has lengthened the life of

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the mine considerably. The company has had no stoppage days due to protest since 2006 – an impressive statistic given the ubiquitous nature of protest across Peru’s extractive industry. The company’s engagement with civil society organizations facilitated citizens’ demands that the water authority (SEDAPAR) provide water for all residents – even those without formal claims to land. The water treatment plant, which is a partnership between the company and the local government, now provides water to more than three hundred thousand additional residents and clean water to 95 percent of the city (Avant, Finn, and Olsen 2020). While this example illustrates the practical application of agonistic ideals, whether or how contestation shapes democratic practices, on average, is still up for examination. Lowndes and Paxton (2018) summarize the frustration many have shared about the agonistic literature’s dearth of detail around its practical application. Wingenbach (2011, p. 85 in Lowndes and Paxton 2018, p. 701) calls it “frustratingly shallow” while Kalyvas in Schaap (2009, p. 34 in Lowndes and Paxton 2018, p. 701) references an “institutional and legal deficit” in such approaches. This analysis is an attempt to help fill this void in the literature by asking the following set of questions that will improve our understanding around how agonism works. Does contestation alone shape democratic practices and, by extension, the rights that citizens enjoy? Do claims made, but not addressed, have spillover effects on democratic norms? If not, what type of contestation has positive effects on democratic institutions? How do judicial and nonjudicial remedy mechanisms shape civic empowerment and respect for human rights in the long term? In other words, how does contestation (e.g., claim making) and associated business and human rights governance mechanisms (e.g., judicial or non-judicial remedy) affect, if at all, democratic practices, more broadly? This chapter proceeds as follows. First, I pair claims made in the agonism literature with political science and management scholarship to develop testable hypotheses about how contestation can shape democratic practices. Next, I describe the data used in this chapter and discuss the findings. As we will see, the data provide strong empirical evidence for the central tenets of agonism. Finally, I conclude by discussing the findings and implications for agonism, corporate behavior, and democracy and development, more broadly.

agonism in practice: confrontation and governance The most generous interpretation of agonistic thought is that non-violent contestation, of any kind, could lead to positive outcomes for democratic

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practices. The act of confrontation – that is, making a claim known – in a democratic setting could lead others to also feel safe making claims known. As Felstiner, Abel, and Sarat (1980) pithily state: “Disputes are not things; they are social constructs” (p. 631). The literature on the sociology of law emphasizes how claims, with or without formal redress, highlight “the way in which experiences become grievances, grievances become disputes, and disputes take various shapes, follow particular. . .paths, and lead to new forms of understanding” (Felstiner, Abel and Sarat 1980, p. 632). Claim-making, collectively and over time, may shape actors’ perceptions and practices. Non-market strategy scholars find empirical evidence that supports this argument. McDonnell and King (2013) assess the role social movements play in shaping corporate behavior. They find that firms were more likely to make pro-social claims after having faced a boycott, which illustrate “a firm’s commitment to socially acceptable norms, beliefs, and values and protect its image by diluting, rather than refuting, the negative claims made by activists” (p. 388). While simply making pro-social claims does not indicate the issues were resolved or that firms have committed to changing their behavior. It does, however, illustrate that there was some effect from a public confrontation. Those expressing discontent were able to do so in a safe and public manner and, in response, corporate actors soften their language, on average, to avoid future “movement-induced image threats” (McDonnell and King 2013). Interestingly, a firm with a high reputational standing “will perceive itself to be shielded from movement attacks, decreasing the likelihood of any defensive response” (McDonnell and King 2013, p. 387). While the authors call this “buffering,” agonism might suggest those firms that were already prosocial might be better poised to engage respectfully with perceived adversaries. Likewise, stakeholder theory also embraces the idea that confrontation alone can have positive spillover effects on corporate behavior, which agonism would imply could positively impact democratic practices. Firms may be unaware that grievances exist unless people make claims. The stakeholder theory literature argues that firms will perceive stakeholders as salient when they have power, legitimacy, and urgency (Mitchell, Agle, and Wood 1997). Yet, how firms engage with them – whether firms accept stakeholders as worthy adversaries or possibly important partners (e.g. labor unions or suppliers) – is predicated on claim-making and organizational trustworthiness (Greenwood and Van Buren 2010), and the potential for the firm to embrace new forms of understanding (Roome and Wijen 2006). Dawkins (2015) suggests that firms can engage with stakeholders in agonistic struggle, in ways that

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generate support for the broader system in which both stakeholders and firms exist, even if they have divergent interests and goals. From the victims’ perspective, a related literature suggests the very act of claim-making might leave them further empowered, regardless of the outcome. Norval (2015) writes about the South African Truth and Reconciliation Commission (TRC), which was known for the “positive space in which many victims of apartheid could relate, with dignity, for the first time [about] how they were affected by abuses” (p. 186). Agonism, however, highlights that not everyone will be satisfied by contestation efforts and this was the case with the TRC, as well. The Khulumani Support Group, an organization that sought victim-centered redress for crimes committed by the state and a number of multinational corporations that aided and abetted the apartheid regime, contested the positive imagery of the TRC. They were unsatisfied with the TRC; they argued that the process “required the ‘good victim’ to say their piece and go home, while the ‘bad victims’ (Khulumani members) refused to keep quiet and let ‘the past be the past’” (Madlingozi 2009 in Norval 2014). Contestation can create a myriad of responses: “subjects reconciled, as far as that is possible, with the past, and subjects [who resist] the demand to let the past be the past; subjects who forgive and subjects who demand that reconciliation has a price, which is yet to be paid” (Norval 2014, p. 186). Yet, from that contestation, individuals can emerge further empowered; dissatisfaction with one outcome, in short, prompted Khulumani members to increase their civic engagement in an effort to strengthen broader respect for human rights. If the act of contestation is accompanied by mutual respect and “the collective articulation of political claims” we may also see the “opening up of previously unthinkable possibilities” (Norval in Schaap 2009, p. 164). In sum, the varieties of remedy approach and complementary literatures support the notion that claim-making, regardless of the outcome, does have an effect on other actors. Agonism, however, points to the intermediary steps of the role contestation can play in improving democratic practices, in general. Thus: H 6.1: Confrontation alone – with or without governance efforts – will positively affect democratic practices, in the long-term.

Contestation and Judicial Remedy Mechanisms While agonism is relatively agnostic on the specifics of how contestation should occur, business and human rights scholars indicate how access to judicial remedy may have positive spillover effects for improved corporate

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conduct. Accountability efforts, even if unsuccessful, may shape the legitimacy of existing institutions and, possibly, the broader promises made to citizens in the global south about the benefits of capitalism. John Ruggie, the former Special Representative to the Secretary-General (SRSG), has written about the “knock-on effects” of litigation (Ruggie 2012, p. 4). Such logic in the context of business and human rights is reflective of DiMaggio and Powell’s (1983) work on institutional isomorphism or the ways in which institutions tend to adopt similar structures and, by extension, behavior. While not specifically writing about litigation, the authors identify that the rise of isomorphism is explained by “the expansion of the central state, the centralization of capital, and the coordination of philanthropy [which] all support the homogenization of organizational models through direct authority relationships” (DiMaggio and Powell 1983, p. 151). One might add judicial remedy to the list in that access to formal judicial processes for corporate accountability, regardless of the outcome, can create incentives for other firms to begin playing by the rules (and avoid lengthy and costly legal processes) and improve their respect for human rights. Those “knock-on” or spillover effects may take form as states play an increasingly pronounced role in shaping corporate behavior abroad. States regulate firms’ global supply chains, impose corporate social responsibility demands through public procurement, or regulate specific CSR standards for company policies (Knudsen and Moon 2015). Since 1996, Belgian transnational corporations and Belgian subsidiaries of foreign companies have been required to report on their social performance in their annual accounts. As of 2001, Australia required corporations listed in the Australian stock exchange and other investment firms to complete an annual corporate social responsibility report. As of the same year, nationally listed French companies are required to submit a corporate sustainability report, which should include information on “how they will ensure that subcontractors and subsidiaries comply with ILO’s core conventions” (Abrahams 2004, p. 35). Denmark, for example, established a Council for CSR in 2008 which is charged with aiding, supporting, and informing the Danish government on matters related to Danish companies’ social responsibility; in the same year Denmark added CSR requirements to the Danish Financial Statements Act. To comply, firms must “disclose their CSR policies, how they implement them, and what they have achieved; or state specifically that they do not have CSR policies” (CSR and Reporting in Denmark 2011). Additional examples abound – some of which were discussed in Chapter 1 – ranging from listing requirements on the Hong Kong and Paris stock exchange to human rights requirements of

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export credit agencies, which are public institutions that provide financing and insurance to companies (Bernaz 2013). States in the global south also embrace such initiatives. The 2013 Companies Act in India, for example, requires that companies set up a corporate social responsibility board committee that must ensure that the company spends “at least two percent of the average net profits of the company made during the three immediately preceding financial years” on such activities (India Companies Act 2013, par. 135). In Argentina, Law 2594 of the City of Buenos Aires requires companies with over 300 employees to report on their social and environmental performance (Legislatura de la Ciudad Autónoma de Buenos Aires 2007). While states may respond to litigation trends, corporations are also incentivized to address systemic problems to avoid legal liability. Schrempf-Stirling and Wettstein (2017) conducted a study of forty-one corporate foreign direct liability cases, such as those brought under the Alien Tort Statute (ATS) in the United States. None of the cases ended with guilty verdicts and most were dismissed. Even so, they find positive spillover effects in educational and regulatory spheres. In particular, they noted, most corporations “introduced or adjusted their human rights policies during or shortly after the legal proceedings” (p. 546). The authors suggest that “litigation threat and the reaction of corporate defendants of human rights litigation are likely to prime non-defendant corporations. . .to adopt or amend human rights polices” (Schrempf-Stirling and Wettstein 2017, p. 546). Indeed, management scholarship has illustrated that non-target firms improve their own compliance when industry peers are called out for irresponsible or illegal behavior (Cohen 2000; Reid and Toffel 2009; Short and Toffel, 2008). This effect, though, is cumulative over time and across industries. SchrempfStirling and Wettsein (2015) state that “[t]he perceived risk, however, increases with the number of cases that are brought to court. . .hundreds of cases, however, sends a different signal and encourages companies to proactively limit the risk of being sued as well” (p. 557). Others echo this sentiment, as Bernaz writes, “the more often claims will be brought against companies, the more awareness of the link between certain types of operations and human rights abuse will be raised, hopefully leading to less abuse in the future” (2013, p. 509). A related literature on transitional justice shows that trials involving victims of past state-sponsored abuse – regardless of the outcome – improve respect for human rights and democratic practices, over time. The logic in that literature applies here, as well; for transitional justice, there is a bargain to be struck between accountability for human rights and securing a successful democratic

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transition (Dancy, et al. 2019). Beyond making claims known, victims’ ability to engage in formal, judicial institutions – the act of being heard and having one’s concerns acknowledged, if not remedied – is still an important step in establishing legitimate, democratic institutions. This is particularly the case across Latin America where relatively new democracies are continuing to consolidate or, perhaps, experiencing new waves of discord. To make claims and have them heard lies in stark contrast to the widespread human rights abuses that went largely ignored, if not actively repressed, during the nondemocratic era of the 1970s and 1980s. For business and human rights, the bargain may be between competing norms of economic growth and respect for human rights. What this literature points to, however, is that the process of engaging in judicial remedy attempts can positively shape respect for human rights, more broadly. Thus, this literature suggests that: H 6.2: Access to judicial remedy – regardless of the outcome - will positively affect practices, in the long-term.

Contestation and Non-Judicial Remedy Mechanisms Alternatively, corrupt, inefficient, or weak institutions might lead citizens and businesses, alike, to avoid formal institutions and seek remedy elsewhere. Drawing again from the transitional justice literature, Osiel (2000) highlights the disincentives associated with formal accountability and writes, “Even when culpable parties are not powerful enough to stop prosecutions entirely, they may be able to hamper judicial power severely, undermining the courts’ independence and impartiality” (p. 120). This logic suggests that public displays of institutional weakness may be more damaging to the democratic experiment than human rights abuses of its most vulnerable. The result, in other words, may be inferior to no judicial process at all if it only shows the ability of democratic institutions to be “transparently compromised by political pressure” (Osiel 2000, p. 120). While the ability to confront large, relatively powerful actors may serve as an important practice for individuals in a newly established democracy, it is also possible that without results, broad trust in such institutions could erode rapidly. This is particularly acute in Latin America, where support for democracy has been falling over the past five years, according to the Latinobarómetro poll. Approximately, 49 percent of citizens across Latin America supported democracy in 2020, falling nine points from its high of 63 percent in 2010

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(CNN 2021). Brazil, in which only 9 percent of the population is satisfied with democracy, drives this trend as their former president, Jair Bolsonaro (2019– 2022), did not hide his preferences for more authoritarian rule (Lujan 2019). While it is possible this trend may shift as Lula Inácio da Silva assumes the presidency once again in 2023 (his previous term was 2003–2010), the country has been on the verge of an institutional crisis for some time, as prior to Bolsonaro’s rule, opposition parties worked to impeach President Dilma Rousseff (2011–2016) in 2016, only to protect many of their own from the numerous scandals, including those associated with Odebrecht, a large construction company, and Petrobras, the state-owned oil company. The reach of Odebrecht, one of the biggest corruption cases in history, of course, has expanded beyond Brazil, implicating top leaders in Peru (former presidents Alejandro Toledo and Ollanta Humala, in addition to the opposition leader, Keiko Fujimori; former president Alan García committed suicide in 2019 when investigators arrived at his house to take him into custody), Ecuador (vice president, Jorge Glas, who was sentenced in 2017 with six years in jail), Colombia (vice minister for transport, Gabriel Garcia Morales, who has been sentenced to five years in jail and many others are still under investigation), Chile, Mexico, Guatemala, El Salvador, and more. Such scandals among elite political and business leaders further support citizens’ concern that democracy has been used to make the wealthy wealthier. Scholars posit that the opposition toward democracy is, in part, because its benefits have not been shared evenly. Though Latin America experienced economic growth and declining inequality in the early 2000s, it remains the most unequal region in the world. The Economic Commission for Latin America and the Caribbean (ECLAC) and Oxfam estimate that between 2002 and 2015 “the fortunes of Latin America’s billionaires grew by an average of 21 percent per year” (Ibarra and Byanyima 2016). Moreover, the same study notes that, as of 2014, “the richest 10 percent of people in Latin America had amassed 71 percent of the region’s wealth” (Ibarra and Byanyima 2016). Widespread protests in Chile began in October 2019, after a relatively modest price increase for the subway fare. The fare increase was a strong symbolic gesture, however, that catalyzed widespread protest, as more than one million people took to the streets to express their disgust with inequality and corruption. This is of particular interest as Chile is the Latin American poster child of free-market, neoliberal reforms. Yet, one sign read: “Neoliberalism was born in Chile; it is dying in Chile” (Castañeda 2019). Pragmatism, however, reminds us of the endogeneity of individuals’ interactions with their environment. If individuals do not have trust in democratic

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institutions, they may be open to alternative arrangements. States may lose their legitimacy and individuals, in the spirit of reflexive innovation, may seek out other venues to be heard or begin to seek out other political or economic systems, as the Chilean protestor’s sign indicates. Kadlec (2007) notes that “Dewey came to understand clearly the need for grappling with systemic structures of domination that distort communication and stunt our critical capacities” (p. 103). Such dissatisfaction, or grappling is a core component of the conflicts analyzed in this text as pragmatism pokes holes in how we think about knowledge or truth. Agonism, however, makes important claims as to how those conflicts play out. It allows for experimentation with different institutional designs, as it embraces, in theory at least, a variety of arrangements in an effort to resolve conflict peacefully in a context of mutual respect. What I am highlighting here is the possible productive combination of pragmatism and agonism to understand how contestation through non-judicial remedy shapes institutional legitimacy in the long term. Individuals may be empowered through the process of making claims. The act of naming and acknowledging that an abuse occurred is an act of courage. Felstiner and colleagues (1980) argue that identifying who is responsible is a first step while blaming someone is yet another momentous step. The final step is to engage in claiming, which “occurs when someone with a grievance voices it to the person or entity believed to be responsible and asks for remedy” (p. 636). Stakeholder theory, likewise, suggests that corporate responses to stakeholders’ claims can actually legitimize those claims (Waldron, Navis, and Fisher 2013) and, in turn, make other corporations more likely to take the claim seriously, as well. “When targets [corporations] seem more responsive to activity campaigns, nontargets’ managers are more likely to view the campaigns as legitimacy threats” (Waldron, Navis, and Fisher 2013, p. 407). The firm and, by extension, its competitors could be perceived as illegitimate if it does not respond in a meaningful way to claims of abuse made against its competition (King and Lenox 2000; Pólos, Hannan, and Carroll 2002). Thus, an agonistic approach to non-judicial remedy mechanisms implies they may represent a pathway through which creative democratic design might embolden actors and strengthen democratic practices, such as political and civil liberties. The very practice of engaging in contestation with a governance outcome, even if it is informal, satisfies the agonistic ideal. Thus, I hypothesize: H 6.3: Access to non-judicial remedy – regardless of the outcome - will positively affect democratic practices, in the long-term.

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table 6.1. An empirical examination of agonism: Hypotheses, variables, and expected effect Independent Variables

Hypotheses

Dependent Variable

Expected Effect

H 6.1: Claim Making ➔ Improved Human Rights/ Civic Empowerment

Allegation

Respect for Human Rights Civic Empowerment

+

H 6.2: Judicial Remedy Efforts ➔ Improved Human Rights/ Civic Empowerment

Judicial Remedy Civil Trials Criminal Trials

Respect for Human Rights Civic Empowerment

+

H 6.3: Non-Judicial Remedy Non-Judicial Efforts ➔ Remedy Improved Human Rights/ StateCivic Empowerment led NJ Remedy Corp-led NJ Remedy

Respect for Human Rights Civic Empowerment

+

variables of interest Though intriguing, are the above hypotheses borne out by the data? To answer this question, this section turns first to a discussion of key variables that I will use to explore these hypotheses. In contrast to previous chapters, the data are time-series cross-sectional, meaning each unit of analysis is a country-year since the hypotheses developed in this chapter require an assessment of change over time. This structure and its implications are discussed in Appendix D, in addition to other data sources and the model specification.

Dependent Variables To empirically assess agonism, I focus on two variables of interest associated with healthy and functioning democracies – respect for human rights and citizens’ empowerment as related to civic engagement. Following Dancy et al. (2019), both of the dependent variables for the analysis are drawn from the Cingranelli-Richards Human Rights (CIRI) database, one of the most widely accepted sources of information on rights protections available. To measure respect for human rights, I use CIRI’s Physical Integrity (Physical Integrity Score) measure, which provides an additive scale that represents a government’s avoidance of repressive violence, built from data on political imprisonment,

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torture, unlawful killing, and disappearance. To measure empowerment, I use CIRI’s Empowerment Rights Index (Empowerment Index), constructed by aggregating data on freedom of speech, freedom of assembly and association, workers’ rights, electoral self-determination, foreign movement, domestic movement, and freedom of religion (Cingranelli and Richards 2013). The Physical Integrity Score is a 9-point index measure because it measures four dimensions of repressive violence, all scaled 0–2. The Empowerment Index, however, is a 15point index measuring seven different subcomponents. For both dependent variables, higher scores indicate better protection of rights, and lower scores indicate fewer protections for citizens’ rights.

Independent Variables The purpose of this particular analysis is to assess whether contestation, with or without sanctions or accountability, has a discernible effect on democratic practices. Agonistic scholarship suggests it should, as that literature underscores the importance of engaging in claim-making to positively affect governance outcomes. In the aggregate, such contestation should help to shape institutions so that they are more responsive to subsequent abuses. Moreover, victims’ access to judicial or non-judicial remedy mechanisms – regardless of the outcome – should also, over time, improve democratic practices and individuals’ ability to participate in democratic processes. Taking agonistic thought to its logical conclusion, we would see both change in individual practice and, as a result, broader institutional strength. Thus, in this particular analysis, I assess the cumulative effect of Confrontation, which is a measurement of the allegations made over time The analysis also takes a closer look at the long-term, cumulative effect of judicial remedy, specifically Civil Trials and Criminal Trials. For non-judicial remedy, the analysis also includes State-Led Non-Judicial Remedy and Corporate-Led Non-Judicial Remedy to assess which type of institutional design improves democratic practices. Cumulative measures are the summation of the yearly counts of each of these events, for each country panel. They are useful because they allow for a measurement of the long-term effect of such practices over time. These “stock” variables (Gerring et al. 2005) “allow for the measurement of continued practice, rather than year-to-year correlations between new policies and changes in key outcomes associated with democratic practices” (Dancy, et al. 2019, p. 7). As highlighted earlier in the chapter, such measures are also more apt to capture broader trends over time, to which companies and states might respond.

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Control Variables Each model in Appendix D includes the same set of controls, which I explain in brief here. All models contain a measure of Democratic Quality, from the Polity IV project, as used in the previous two chapters. The models also include Rule of Law for each country year; this measure originates from the World Governance Indicators, which captures the extent to which citizens “have confidence in and abide by the rules of society,” such as perceptions of incidents of crime, the effectiveness and predictability of the judiciary, and the enforcement of contracts (Worldwide Governance Indicators, n.d.). As the World Governance Indicators describe, “[t]ogether, these indicators measure the success of a society in developing an environment in which fair and predictable rules form the basis for economic and social interactions and the extent to which property rights are protected” (Worldwide Governance Indicators, n.d.). Given this analysis seeks to understand cumulative trends over time, I also control for the political ideology of the party in power, as it may shape broad norms about respect for human rights and/or civic participation. This measure, Party Ideology, indicates the largest government party orientation (left, right, or center) for each country-year. This variable is from the Database of Political Institutions, compiled by the World Bank, and is used for research in comparative political economy. As is standard in many time-series models, I also control for economic growth, as rights generally improve with economic growth. This measure captures the lagged GDP per capita for each country year (GDP per capita) and is drawn from the World Bank’s World Development Indicators. To account for country size, I also include a logged measure of population (Population), which is drawn from the same source. Given the challenges associated with capturing broad changes over time, there are a number of other measures taken to ensure the validity of these results. First, we know that regimes’ repressive practices remain relatively stable over time. To account for this, I follow convention and include a lagged measure of the dependent variable in each model. In addition, because the key independent variables are stock variables that accumulate over time, one might wonder whether the effects are actually attributable to time itself. I, thus, also include a measure that accounts for the number of years since transition (Year of Transition) to control for how much time has passed since each country’s initial transition to democracy. If time explains improvements or declines in rights protection, it would be reflected in this variable’s coefficient. Finally, each model employs fixed effects to account for unobserved heterogeneity between the transition panels.

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agonism in practice: the findings As stressed earlier, this chapter seeks to explore the broader effects of confrontation and governance on democratic practices. In other words, this chapter seeks to investigate what Honig (1993) calls the “affirmative dimension of contestation” (p. 15. Moreover, it provides additional specification around which “democratic designs” can harness conflict in a productive manner to encourage improved democratic practices. This includes respect for human rights, generally, but also more participatory dimensions of democracy that are integral to agonistic and pragmatic thought. The findings here suggest that confrontation alone plays an important role. While some scholarship might suggest that claim-making, especially in the context of weak institutions, could actually lead to increased repression, the data analysis illustrates that it improves respect for human rights (Figure 6.1; see Table 1 in Appendix D). Allegations alone, however, have no effect on increased civic engagement. These findings show that the act of making abuses known, over time, does improve broader respect for human rights. Even claim-making in the corporate context has implications for human rights norms, more generally. Claim-making increases awareness about corporate human rights abuses and condemns them in a public way. In Colombia, for example, the Organization of Antioquia Indigenous (Organización Indígena de Antioquia) informed

Pr(Respect for Human Rights)

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5.5

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4 0

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30 Allegations

figure 6.1. Marginal effect of allegations on respect for human rights

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5.2

5

11.2 Pr(Empowerment Index)

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Trials

figure 6.2. Marginal effect of trials on respect for human rights and empowerment

local communities that the prior consultation conducted by Rio Tinto and the Muriel Mining Corporation was done through bribery and deceit of indigenous leaders (El Espectador 2009).2 Moreover, the process of making the claim heard can facilitate new linkages between victims, advocates, policymakers, and business leaders that can raise awareness about wrongdoing and deter future would-be human rights abusers. Indigenous communities also met with the Human Rights Ombudsman to inform them that the company’s consultation process was insufficient. And, later on, another organization – the Colombia Solidarity Campaign – presented a submission before the Joint Committee on Human Rights of the House of Commons in the UK, urging it to compel Rio Tinto to stop all involvement in this particular project due to the lack of prior consultation to affected communities (Colombia Solidarity Campaign 2009). While each individual act may not yield a desired outcome, on the aggregate, the data show that the collective effect of claim-making improves respect for human rights, over time. The data also illustrate that there is a positive cumulative effect of trials over time (Figure 6.2). Trials, generally, improve respect for human rights and the empowerment index, which captures basic political and civil rights (see Table 2, Models 1 and 2 in Appendix D). This confirms the logic inherent in agonism, generally, that contestation can improve democratic practices, more broadly. 2

CHRD unique ID: 1704RIO0027.

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This finding, however, gives additional nuance as to what types of contestation are linked with improved democratic practices; it underscores the broader value inherent in seeking judicial accountability, regardless of the outcome. An example from Mexico illustrates how such claim-making – and accountability efforts – can have a broader impact on other organizations and agencies adherence to more democratic norms. The Natividad y Anexas mining company was operating in Capulalpam de Méndez, Oaxaca, where it was responsible for significant pollution (Cruz Martínez 2007).3 The mine depleted water sources and released hazardous materials into the Capulalpam River (Huajuapan 2011). In 2006 community members took recourse against the company with the Federal Environmental Protection Agency (PROFEPA) and in 2007 PROFEPA ordered that the Natividad mining operation be halted due to environmental degradation (Paley 2008) and the lack of an appropriate enivonmental impact evaluation, as required under Mexican law (Government of Mexico 2017). Studies completed in 2011 indicated that the area of the Capulalpam River, where the company dumped its waste, contained very high levels of arsenic and lead (Huajuapan 2011). After nearly five years of litigation, the Third District Court in Oaxaca issued a ruling that legally recognizes the indigenous ancestry of Capulálpam and, thus, ordered the cancellation of all mining concessions that were granted without prior consultation with the community (Zavala 2020). While appeals processes are still underway, PROFEPA declared on its website that the closure of the mine, which is in accordance with the law, “reiterates [their] commitment to fully comply with the determinations imposed and, thereby, guarantee the human right to a healthy environment” (Government of Mexico 2017). Such declarations provide a clear signal to community members bringing such claims to the fore, companies operating in the country, and to other policymakers about the importance of hearing claims and taking action when needed. The positive association between trials and respect for human rights supports the logic of deterrence, in that it sends a signal to those who might commit similar abuses that accountability efforts, if not accountability, are within victims’ reach. The positive association between trials and civic engagement supports Epp’s (1998) notion that there has been a democratization of access to the courts, driven by the resources and technical assistance of civil society organizations, which has led to what he calls a “rights revolution.” While that phrase may be too optimistic to describe the context at hand, the findings support the notion that access to trials, again regardless of the

3

CHRD unique ID: 1704NAV0021.

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5

11.5

11

10.5

4.5 0

1

2 3 Criminal Trials

4

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0

2

4 6 Civil Trials

8

10

figure 6.3. Marginal effect of civil and criminal trials on empowerment and respect for human rights, respectively

outcome, leads to improved respect for human rights and greater civic empowerment over time. When I disaggregate the trials measure between civil and criminal proceedings, we learn more about the mechanisms behind these positive associations. The right side of Figure 6.3 illustrates that an increase in access to civil trials is associated with an increase in civic engagement, though civil trials have no effect on increased respect for human rights (Table 2, Models 3 and 4 in Appendix D). The literature supports this finding; citizens who observe others defending their rights – and having those claims heard – may then seek to engage in the public sphere. Hilbink (2009) finds that civil society can drive socialization processes among the legal community in favor of rights development. Engaging in what can be a very time-consuming, costly, and arduous process, regardless of the outcome, can positively shape political and civil rights in the future, especially as victims and their advocates engage in “social accountability” which entails the use of legal claims by social actors to demand the protection of civil and human rights (Peruzzotti and Smulovitz 2006). Criminal trials – regardless of the outcome – have no effect on improved civil and political rights but are positively correlated with improved respect for human rights (left side of Figure 6.3; Table 2, Models 5 and 6 in Appendix D). This, too, makes sense. The deterrent effect requires a strong signal that those

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5.5

Pr(Respect for Human Rights)

Pr(Respect for Human Rights)

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5

4.8

4.6

4.4

5

4.5 0 1 2 3 4 5 6 7 8 9 10 Non-Judicial Remedy

0

1 2 3 4 State Non-Judicial Remedy

5

figure 6.4. Marginal effect of non-judicial remedy and state-led non-judicial remedy on respect for human rights

engaged in future abuses may also be held to account; this signal is more readily observed when the state takes action to hold corporations accountable. Deterrence requires a cost; state-led criminal procedures indicate that the state is willing to take action. Moreover, denouncing wrongdoing (including related media coverage) may deter others from committing human rights abuses, as they observe the increased reputational costs associated with the threat of being taken to court (Rosenberg 2008). Together, these findings are examples of the strengthening effect that contestation, in general, can provide to democratic institutions, which is at the heart of pragmatic and agonistic thought. Confrontation shapes governance, which, as we see here, leads to improved democratic practices. These themes are picked up again in the conclusion. Finally, the data illustrate a positive, cumulative effect for non-judicial remedy mechanisms (left-hand side of Figure 6.4 and Table 3, Model 1 in Appendix D). When the non-judicial remedy data are disaggregated by those that are state-led vs. corporate-led, this finding only holds for those instances in which the state has initiated some type of non-judicial remedy mechanism (Table 3, Model 3 in Appendix D). The analysis does not support the idea that those remedy mechanisms initiated by corporate actors improve democratic practices. While corporate-led non-judicial remedy mechanisms do not have a negative impact on respect for human rights and improved political and civil liberties, they do not improve them like some of the other mechanisms here.

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table 6.2. An empirical examination of agonism: Hypotheses and findings Hypotheses

Expected Effect

Findings

H 6.1: Claim Making ➔ Improved Human Rights/Civic Empowerment

+

Partial. Confirmed for improved human rights, but no effect on civic empowerment.

H 6.2: Judicial Remedy Efforts ➔ Improved Human Rights/Civic Empowerment

+

Confirmed. Positive effect of trials on both human rights and civic empowerment. When disaggregated, civil trials improve civic empowerment while criminal trials improve respect for human rights.

H 6.3: Non-Judicial Remedy Efforts ➔ Improved Human Rights/Civic Empowerment

+

Partial. Non-judicial remedy efforts improve respect for human rights, but only when led by the state. Corporate-led non-judicial remedy has no effect on either human rights or civic empowerment, on average.

This null result supports one of the concerns agonistic scholarship has with deliberative democracy, in that those efforts to engage with external stakeholders in non-institutionalized ways may ignore or overlook power politics that underlie those engagements. Alternatively, when state actors are involved in administering non-judicial remedy mechanisms, we see an improvement in respect for human rights, in particular (right-hand side of Figure 6.4). The findings are summarized in Table 6.2.

conclusion These findings highlight two key points. First, they confirm the central tenant of agonistic thought – that confrontation can strengthen democratic practices and thus, governance systems. In the short-term, allegations – especially when they are ignored completely or not met with a satisfactory outcome to victims – can be defeating. Yet, these findings indicate that, over time, individual allegations have a positive, cumulative effect and lead to increased respect for human rights. Second, although pragmatic thought recognizes multiple pathways to improved democratic processes, the findings about corporate-led non-judicial

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remedy illustrate that those mechanisms must be held to a higher standard from an agonistic perspective. Participation in them is not enough to actually shape democratic practices; victims must see state action associated with non-judicial remedy for democratic practices, on average and over time, to improve. Finally, these findings highlight the important role the state can play in navigating the tension between human rights and economic growth. While confrontation in and of itself plays a positive role, processes that do not directly involve the state, such as corporate-led non-judicial remedy, do not have the broader effects on rights protection and improved democratic engagement. State engagement – as the site for civil trials, the prosecutor in criminal trials, or the initiator of non-judicial remedy – has important spillover effects for respect for human rights and greater citizen empowerment through the exercise of civic engagement. The analysis illustrates that when citizens see the state taking action to provide a space for their claims, respect for individuals’ rights is also improved. Chapter 5 began with an example of contestation around a large-scale dam in Guatemala. Archbishop Alvaro Ramazzini of Huehuetenango, who was the community’s witness in the multi-stakeholder negotiations, underscores the pivotal role of the state. In a long-form interview, the Archbishop concluded: “We need foreign investment, but the State has to review its pacts and agreements with transnational companies that are installed in indigenous territories, and take [those] claims very seriously. For this to happen, deep reforms must be made to the legal system, because one of the excuses they always make is that the law prevents it. But if the law prevents it, and we see that this does not work, then let’s change the law, because this cannot continue like this. Conflict is on the rise, and ungovernability is promoted by the State itself by ignoring these demands” (Escalon 2012b). This rich quote illustrates that contestation – when the state engages – can lead to systemic change. When the state chooses not to engage – in agonistic terms, where contestation is not absorbed by existing institutions – Archbishop Ramazzini indicates that unrest may follow. Implications for Agonism Much of the scholarship on agonism works to illustrate the importance for modern democracies to design democratic institutions that are capable of absorbing contestation. This chapter has focused on assessing whether, empirically, there is a productive role for confrontation in the context of business and human rights. This research provides substantial insight into the intuition behind agonistic thought. As agonistic scholars argue, these results show that confrontation alone can play a positive role in improving democratic

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practices. This suggests that the act of making abuses known strengthens the democratic practices that could, in turn, reduce the likelihood that future would-be abusers would commit wrongdoing. Yet, these findings also sharpen agonistic thought as they illustrate that not all types of contestation are equally productive. These findings bring to light that remedy can shape democratic outcomes differently. This research shows that the state’s engagement in both judicial and non-judicial remedy has a more profound effect on measures of improved human rights and empowers citizens to use their civil and political liberties. Access to judicial remedy, it turns out, has an even more profound effect on improved political and civil rights when citizens engage in civil proceedings; criminal proceedings, alternatively, serve as a deterrent effect for would-be human rights abusers. These effects hold even though the vast majority of criminal cases in the dataset do not end in a guilty verdict and civil cases rarely provide damages for the victims. The act of seeking accountability for corporate wrongdoing prompts action in other spheres of civic life. That a specific outcome (that is, a guilty verdict or damages) is not necessary for formal remedy mechanisms to have broader effects is largely in line with agonistic thought. While democratic outlets for confrontation are important, agonistic scholars place little weight on how those processes resolve or address the confrontation. What we learn here, however, is that the formality matters; state action matters.

Implications for Corporations As the data and analysis illustrate, corporate-led non-judicial remedies do not have a long-term effect on democratic practices. Corporate-led non-judicial remedies, in other words, are one of the “democratic designs” that do not result in agonistic confrontation, as no gains are made in terms of increased respect for human, civil, or political rights. In Colombia, for example, Central Hidroeléctrica de Caldas-Chec allegedly polluted the Caldas River, when in 2011 the reservoir broke and released pollutants and mud that killed many of the fish.4 The Workers’ Union of Colombian Energy (Sindicato de Trabajadores de la Energía de Colombia) organized protests against the company (Notiagen 2012). The company stated that it compensated 77 families that were affected by the pollution (RCN 2012). Yet, the data show that these types of efforts, with little to no involvement from the state, do not improve 4

CHRD unique ID: 2701CCE0002.

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democratic practices. Corporate-led non-judicial remedy does not improve broad respect for human rights or strengthen civic empowerment over time. This finding may surprise some and be a disappointment to others, as substantial hope and even enthusiasm has been expressed about the possibilities of corporate-led non-judicial remedy. Yet, pragmatic scholarship tells us to learn and innovate from these findings. As others have shown, there is great variation in corporate-led non-judicial remedy and more research is needed to determine how corporate-led non-judicial remedy might be structured to have positive spillover effects. It is quite possible, for example, that some corporateled non-judicial remedy mechanism could be designed to address the root causes or systemic issues associated with the allegations.5 These may be more likely to empower stakeholders and send a signal to competitors that human rights abuses are not tolerated. Other efforts, though, may pose no real cost to the corporations and provide no substantial remedy for victims. While the findings show that no negative effects are born out, corporate-led non-judicial remedy mechanisms, in short, do nothing to strengthen democratic norms.

Implications for Democracy and Development What this book is about – at its heart – is contestation and confrontation about democratic institutions and economic markets, about respect for human rights and demands for economic growth, and about making voices heard through productive contestation and strengthening pathways to remedy. It brings to bear tough questions about the trade-offs associated with economic development and conflicting values around economic growth. What many seem to have forgotten, however, is that to function in the long-term, citizens must feel they have a place in the economy or, at a minimum, that there is a chance it might offer a higher standard of living or greater opportunities than previous generations enjoyed. Yet, accountability is key to this equation; without accountability or as we have seen – even efforts toward accountability – the legitimacy of the system fails. What is perhaps more important, however, is that those confrontations can occur in a way that promotes democratic values. If confrontations have an outlet – if pathways to remedy mechanisms are clear and accessible – then they can facilitate the type of reflexive innovation and experimentation that pragmatic scholars suggest is fundamental for strong democratic institutions. 5

Perhaps, for example, there is opportunity to combine efforts around human rights due diligence with more appropriate non-judicial remedy mechanisms (see, for example, McCorquodale, Smit, Neely and Brooks 2017).

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Moreover, it seems, such instances also would have a greater opportunity to facilitate the potentially productive role of contestation, as outlined by Honig (2007). If confrontation shapes governance in productive ways, those institutions may be able to harness conflict in a constructive manner. For this to occur, however, state, corporate, and civil society actors need to work hard to foster contestation with “agonistic respect.” This means that one views their adversary as a worthy opponent; one who has thoughts, lived experiences, and perspectives worth knowing. As indicated by the opening example for this chapter, Freeport learned that rather than countering political leaders’ insults about the company, they needed to recognize those statements as important demonstrations of the politicians’ integrity to their constituents. “So, you just accept them. Never respond to violence with violence. Demand peace” (Avant, Finn and Olsen 2022). Such a perspective requires a substantial shift in framing, as many corporations and states see opposition or, indeed, criticism as something to be silenced or pacified. Instead, agonism creates opportunities to participate in meaningful engagement – not to win, but to understand. Of course, leaders must make decisions and some facets of society will be unsatisfied. However, agonism tells us to expect ongoing contestation and view it as a sign of growth, not something to lament. As Honig (2007) insightfully states, “. . .a democratic politics would do well to replace its faith in a pure general will with an acceptance of its impurity and an embrace of the perpetuity of political contestation that the impurity makes necessary” (p. 87). This book offers a study of confrontation and governance, with an eye toward increased accountability. This is not to say that confrontation will always result in accountability; quite the contrary. There are numerous instances in which victims receive no redress. But, without accountability in some proportion of contested events – as Adam Smith recognized – the strength and longevity of political and economic systems may suffer. Trust in political and economic institutions, for example, could dwindle as victims of corporate human rights abuse sense there is no institutionalized outlet for their concerns to be addressed, a point to which Archbishop Ramazzini alluded. Without productive outlets, civil society and economic actors may abandon the project altogether; that is to say, civil society actors may disengage or opt for more violent means of protest while economic actors, questioning the feasibility or profitability of projects that face persistent and violent conflict, may simply close their doors. State leaders, instead of navigating the tensions found between economic growth and human rights protections, could be left with neither.

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7 Conclusion Implications of the Varieties of Remedy Approach

This book explains how victims of corporate human rights abuse access remedy. Early chapters drew together ideas from pragmatism and agonism to build the intellectual framing for the inquiry. Pragmatism recognizes the suboptimal and changing nature of institutions, stressing that there can be multiple and conflicting logics, and that, through reflexive innovation, moments of stability are likely to arise, though they are ephemeral in nature. While contestation is tacit in pragmatic thought, agonism makes it an explicit part of the equation. Agonism suggests that contestation can shape governance outcomes, in the short-term, and over time, be a source of legitimacy and strength. Yet, neither pragmatism nor agonism tell us how contestation shapes governance outcomes. Thus, I build on existing scholarship to develop three potential pathways that can facilitate victims’ access to remedy: Institutional Strength, Corporate Characteristics, and Elevating Voices. With these pathways, I empirically test assertions in the existing literature to further refine the varieties of remedy approach in Chapters 4–6. In addition to the theoretical contributions of this work, discussed in greater depth later, this research also makes important empirical contributions, as the dearth of systematic data about corporations, the human rights abuses they commit, and access to remedy has limited our knowledge of when and where such abuses occur and what explains victims’ access to remedy mechanisms. To systematically examine these pathways, I worked with a team of students to create an original dataset – the Corporations and Human Rights Database, described in Chapter 3.1 These data allow our collective understanding of business and human rights to move beyond existing work, which often focuses on a few emblematic case studies or is limited to a specific sector or country.

1

See www.bhrlab.com for more information.

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The CHRD, instead, facilitates scholarship that compares across countries, sectors, firm types, and types of abuse. There is a wealth of information therein, which I hope will inspire and facilitate additional research on business and human rights. The Conclusion begins by bringing together the findings from the empirical analyses throughout the book to explicitly delineate the varieties of remedy approach. Second, I explore the broader implications of this work, as it relates to ideas that were discussed in the introduction, including the governance gap and the tension between the conflicting norms of human rights and economic growth. Finally, I share some potential areas of future research.

Seeking Justice: How Contestation Shapes Governance for Corporate Human Rights Abuse The varieties of remedy approach, as noted in Chapter 1, is a play on Varieties of Capitalism by Hall and Soskice (2001), to highlight the need for a better understanding of remedy for the ills of capitalism.2 This approach identifies how the characteristics of contestation shape victims’ access to remedy in Chapters 4 and 5 by exploring access to judicial and non-judicial remedy, respectively. Figure 7.1 mirrors Figure 2.1, but includes a more nuanced summary of the findings associated with each pathway, when warranted. The analysis, overall, demonstrates that Institutional Strength matters but in expected and unexpected ways. Strong institutions (measured as respect for rule of law) improve victims’ access to judicial remedy. This holds true for civil and criminal trials. Non-judicial remedy is more likely in contexts with weak rule of law; this finding holds for state-led non-judicial remedy, indicating that other areas of the state come to the fore when the judiciary is compromised. Rule of law, however, does not affect the likelihood victims will have access to corporate-led non-judicial remedy. This finding contrasts with those who promote corporate engagement via non-judicial remedy mechanisms as a viable alternative for victims in states with weak institutions. The second pathway explores the role of Corporate Characteristics. At first blush, I find that large firms are more likely to face civil trials, while foreign 2

Of course, the comparison cannot be extended too far. Hall, Soskice, and colleagues (2001) explore the institutional similarities among and differences between developed economies. They link the institutional frameworks in two ideal types (liberal market economies and coordinated market economies) to corporate strategy, employment conditions, distributional effects, and other factors. The juxtaposition may be appropriate, however, to the extent that Varieties of Capitalism does not emphasize a normative perspective as to whether specific ideal types are more conducive to the well-being of people and their surroundings.

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figure 7.1. Pathways to remedy, specific findings

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firms or profitable firms are less likely to face accountability, in general. An even closer look moves us beyond the standard story of corporate impunity. Victims are more likely to access civil trials when the firm is profitable and domiciled locally. And, though the literature would lead us to expect otherwise, the state is more likely to take action when the firm in question is large and foreign; the interaction term of foreignness and firm size is positively correlated with criminal proceedings. These findings, together, challenge the idea that large, multinationals can avoid accountability efforts entirely. In short, the Corporate Characteristics pathways to remedy are: firms that are a) domestic and profitable; b) large; and c) large and foreign are more likely to be held to account. The bottom line is twofold: first, accountability efforts target firms that many observers would assume were immune to such efforts; and second, these efforts are underway and moving ahead more frequently than most would have imagined. Corporate characteristics also shape access to non-judicial remedy outcomes. In terms of state-led remedy mechanisms, I find that states have a propensity to initiate non-judicial remedy toward firms that are profitable over firms that are struggling financially. Yet, states are less likely to target large firms, possibly due to the political power such firms wield. Corporations are more likely to take the initiative around corporate-led remedy efforts when the firms are large; the literature suggests this is because they have greater capacity to do so. Firm profitability, however, has no effect on victims’ access to corporate-led non-judicial remedy efforts, as slack resources do not increase the likelihood firms will engage with victims or their advocates. Finally, the pathway about Elevating Voices suggest that victims are more likely to access remedy if NGOs support victims’ and bring corporate human rights abuses to the fore. Specific cases within the CHRD suggest this is likely due to domestic know-how and NGOs’ ability to navigate local systems. The analysis demonstrates that NGO support improves victims’ access to trials, generally, and civil trials, in particular. Victims are also more likely to have access to non-judicial remedy mechanisms with NGO support, but only for those firms with a history of corporate human rights abuses. Alternatively, the varieties of remedy approach maintains that INGO support will be less effective in the business and human rights context. The analysis shows that INGO support has a negative effect on access to trials, in general, and criminal trials, in particular. The varieties of remedy approach challenges the assumption that international pressure, possibly through naming and shaming, can motivate access to formal accountability mechanisms for corporate human rights abuse. Moreover, neither NGOs nor INGOs improve access to corporate-led non-judicial remedy mechanisms. This finding brings to light that

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access to remedy mechanisms is more about local know-how than garnering the awareness of other, external stakeholders. It also suggests more scrutiny is needed around theories of change, both in policy and practice, that are premised on the idea that corporations (or corporations with international pressure) will be moved to engage in corporate-led remedy mechanisms. In sum, the varieties of remedy approach offers important insights as to when victims are more or less likely to access remedy. The old story, in short, was one of corporate impunity due to weak domestic actors who are unable to fill the governance gap. This story, however, is different. These findings support a more nuanced narrative, one that articulates that the context in which contestation occurs shapes governance outcomes; moreover, who is making claims – and to whom – matters, as well. These findings have great import – not just for those seeking to improve access to remedy, but for scholars, as discussed below. Agonism in Practice & Broader Implications Taken together, these findings have important implications for pragmatic and agonistic thought. Contestation, whether thought of as individuals making allegations heard or multiple actors engaging in judicial or non-judicial remedy mechanisms, improves domestic practices, over time. What is clear in agonistic thought is that confrontation must be incorporated or integrated into democratic institutions – and, the varieties of remedy approach, as developed throughout the book, suggests that this process is underway. Mouffe (1999) highlights how a deeper understanding of contestation may also result in a new way of thinking about democratic politics, in general: “When we accept that every consensus exists as a temporary result of a provisional hegemony, as a stabilization of power and that always entails some form of exclusion, we can begin to envisage the nature of a democratic public sphere in a different way” (p. 756). One possible “different way” is conveyed here; as Chapter 6 shows, individuals’ contestation through claim making, through judicial action, and through state-led non-judicial action are the sort of democratic practices that not only give individuals a voice but also facilitate the recognition of contestation as a legitimate, democratic process. When democracies incorporate and address confrontation in a productive manner, such processes facilitate a different set of potential outcomes for the issues faced by communities, victims, and business leaders in the business and human rights context. These findings are also reminiscent of pragmatic thought: “Dewey in particular stressed. . .the constancy of change” (Ralph 2018, p. 180).

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As alluded to throughout the book, this view of contestation has the potential to tackle even broader issues that are related to the business and human rights agenda. The legitimacy, and possibly future, of democratic systems, for example, is linked to the distribution of resources and opportunities such a system offers (Olsen and Van Buren 2020). Mouffe states it this way: “The struggle against forms of subordination cannot be the direct result of the situation of subordination itself. . .This is precisely what the democratic discourse has made possible. . .[and with which] subordination can be put into question” (2018, p. 42). Though Mouffe uses the term subordination, one might think of it as any form of wrongdoing or power imbalance that threatens the lives or wellbeing of individuals in question. The varieties of remedy approach offers an opportunity to better understand how contestation over the contours of capitalism can be productive in improving respect for human rights. Victims of corporate human rights abuse who are making their grievances known are, in fact, utilizing the democratic systems and discourse to question, and seek redress for, corporate wrongdoing. As such, this book encourages, if not demands, that we – both scholars and those engaging with others on an ongoing basis – adopt a different frame of reference for contestation. It is not something firms or states should suppress or silence; it is not something to approach with fear. Instead, contestation offers an opportunity to learn, to understand another perspective, and to grow. The abuses that arise due to the tension between economic growth and respect for human rights is explicit in so many of the cases shared in these pages. What is less common is open, respectful engagement with seemingly opposing forces. As Archbishop Ramazzini, discussed in Chapter 6, conveys, when the state willfully ignores the community’s demands or contestation generally, the state exacerbates its ungovernability. On the contrary, “[e]nvisaged as a surface for agonistic interventions, theses public spaces [the state] can provide the terrain for important democratic advances” (Mouffe 2018, p. 47). Facilitating such engagement will not only enable victims’ claim making but will also strengthen the democratic institutions in which these acts of contestation – and those of the future – will take place. What I have described here is a complete departure from the more traditional narrative around the governance gap, as described in Chapters 1 and 2. This research has illustrated first, while impunity does exist, there are many more efforts to hold corporations accountable than the governance gap narrative would suggest. To that end, Chapters 4 and 5 further developed the varieties of remedy approach and provided empirical evidence for the characteristics of the contestation that are associated with greater access to judicial or non-judicial remedy.

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Second, the governance gap distracts us from the real shortcoming of governing – the ability to engage with an adversary, absorb contestation, and explore creative, unorthodox solutions to find a better path forward. It is with this perspective that a better future is possible. As Margaret Levi stated, “[w]hen a combination of individuals with the incentives and imagination to figure out how to operate better within or even to overcome the status quo, we observe institutional transformation and creation” (2006, p. 6). The varieties of remedy approach provides the beginnings of a blueprint for such a transformation. Further Considerations An improved understanding of access to remedy is of great import not only for the lived experiences of those facing such abuse but also for the quality and, quite possibly, endurance of democracies. For individuals and victims of corporate human rights abuse, this research outlines what type of confrontation will improve access to remedy mechanisms. For firms seeking to better promote remedy for human rights abuses and wrongdoing, this research highlights where abuses occur and prompts business leaders to (re)consider how to engage more meaningfully with victims to provide redress. For policymakers, this research highlights the need for policies and resources that build on existing pathways to remedy. In practice, this means first, fomenting the critical role the state plays, both in terms of administrative non-judicial remedy mechanisms and formal accountability efforts; and second, to facilitate the “empowered participation of civil society” (Rodríguez-Garavito 2017, p. 16). States not only facilitate access to remedy in the short-term, their engagement in supporting remedy efforts has a lasting impact on civic empowerment and greater respect for human rights in the long-term, as well. And, for advocates of human rights, the assertions made by the varieties of remedy approach have important implications for NGO and INGO involvement; not all participation is the same. While NGOs are able to positively influence victims’ access to remedy, INGOs can stymie such access, rather than support it. While NGOs could bolster their advocacy efforts for victims of corporate human rights abuse, INGOs may need to reconsider how they engage in this issue. Exploring the tactics and strategies of NGOs and INGOs, when they are used, and to what end warrants further research. For those individuals seeking remedy for corporate human rights abuse in other developing regions, it is likely many of the findings here would apply. Institutions matter; victims are much more likely to access judicial remedy mechanisms in countries where rule of law is respected, while state-based non-

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judicial remedy is more likely in countries where rule of law is weak. This finding alone suggests that building upon existing institutions to strengthen rule of law is a foundational component to improve victims’ access to judicial remedy for corporate human rights abuse. In addition, efforts to bolster the administrative capacity of states with weak rule of law will improve victims’ access to state-led non-judicial remedy mechanisms. It is less clear, however, whether the corporate characteristics of foreignness, profits, and size would have the same effects as seen in Latin America. While the tensions between business and human rights exist throughout the Global South, corporate vulnerability and power may play out differently in other regions. Moreover, corporate accountability efforts for human rights abuse exist in the Global North as well, though the nature of the allegations are distinct. Those firms included in the Fortune 500, for example, still face considerable environmental and labor claims, but encounter more allegations of discrimination than gross violations of an individual’s physical integrity. More research would be needed to assess how pathways to remedy vary in more developed institutional contexts. In addition, the importance of local actors elevating victims’ voices is likely to hold across contexts, as well. While previous research shows that INGOs play an important role in bringing international attention to state-sponsored human rights abuses, the varieties of remedy approach and analyses presented here suggests those efforts are not effective in the corporate context. Instead, the findings and narratives included throughout the book suggest that NGOs, and the local actors who work with them, have the nuanced understanding of formal and informal systems to facilitate access to judicial and non-judicial remedy. This finding would likely hold across contexts, contingent upon NGO capacity, as local knowledge is needed to make way in local disputes through reflexive innovation. Victims in countries with a rich network of local advocacy organizations are likely to benefit from those organizations’ ability to navigate local bureaucracies and, in so doing, amplify the grievances at hand. Finally, the research shared in this book illustrates the importance of collecting systematic, large-N data to better understand broad patterns and trends. Without a comprehensive assessment as to what types of violations occur, who gains access to remedy, and under which conditions, it is difficult to understand how policy or practice should proceed. Moreover, this research also placed the rich narratives from the CHRD into context which offers additional insight into which pathways are paved – to extend the metaphor – and those which are not yet worn. Together, the analysis, dataset, and narratives illuminate what deserves a closer look. I hope this research serves as a call

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for other scholars to embark on related research to explore which pathways exist elsewhere and identify new ways to access remedy that may emerge. Future Directions of Research There are numerous areas of future research, some of which were mentioned earlier, that I hope this work inspires others to explore. A fruitful line of future scholarship could explore the scope conditions of agonism. Agonism is captivating and informative because it provides an alternative framework to existing explanations with which to understand the role of contestation in governance. Yet, the literature provides scant detail in terms of implementation. Schaap reflects that while Mouffe “presumes that all antagonistic conflict can be sublated into agonism, [she] does not provide any guidance as to how we should deal with intractable conflict in which the other remains our enemy” (2009, p. 5). Indeed, agonistic scholars worry that prolonged confrontation without democratic outlets could result in antagonistic, or violent, conflict (see Dryzek 2005 in Schaap 2006, p. 20). The conundrum here is that ongoing engagement with those perceived as the “other” that is void of processes and institutions that foster agonism may result in violence. When and why do some instances of contestation take a violent turn while others are resolved peacefully? In response, Connolly (2002) and others (Dumm 2008; Schoolman 2008) have theorized about the role of “agonistic respect” as a more practical application of agonistic thought. Agonistic respect develops from the mutual appreciation of the ubiquity of disagreement. Connolly writes that agonistic respect “grows out of reciprocal appreciation for the element of contestability. . .The relation is agonistic in two senses: you absorb the agony of having elements of your own faith called into question by others, and you fold agonistic contestation of others into the respect you convey towards them” (Connolly 2005, pp. 123–124, emphases in original). Understanding when contestation turns violent and when actors are able to develop agonistic respect, in other words, would be a fascinating line of inquiry that would have important implications for business and human rights and beyond. A related line of inquiry builds on the findings in Chapter 6 that corporateled non-judicial remedy does not foster improved respect for democratic practices as other mechanisms do. Such research would delve deeper to explore the variation in non-judicial remedy mechanisms, generally, and corporate-led non-judicial remedy mechanisms, specifically. What are the characteristics or components of specific types of non-judicial remedy that lead to positive spillover effects? Is there potential for corporate-led nonjudicial remedy mechanisms to do so and under what conditions? This line

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of inquiry would have direct lessons for corporate leaders seeking to understand how agonism – which could have interesting linkages to stakeholder theory – might be implemented on the ground. Wettstein (2015, p. 162) posits that the business and human rights scholarship is “one of the most dynamic, relevant, and perhaps even most influential debates concerning corporate responsibility.” Scholars could explore the variation within corporate-led non-judicial remedy to better understand whether and how it employs agonistic respect and why the lack of state involvement seems to reduce the longterm positive effects found across other remedy mechanisms. Finally, future research could investigate the additional contradictions between economic growth and human rights. If contestation shapes governance outcomes, when do those tensions result in innovative action that both reduce the prospects for violence and increase the opportunities of mutual benefit? Levi writes, “[w]hile all governments extract resources, some are kleptocrats, some are Robin Hoods, and some, albeit too few, are partners in the production of prosperity and equity” (2006, p. 7). What are the more specific steps state actors, global policymakers, and corporate leaders can take to ensure that when contestation occurs – those cases in which a voice, a claim, an effort to report abuse led to some type of formal or informal remedy mechanism – it facilitates pathways away from impunity and, instead, enables pathways that improve respect for human rights and opportunities for a prosperous, equitable future?

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appendices

Published online by Cambridge University Press

Published online by Cambridge University Press

appendix a

Corporations and Human Rights Database Coding Guide (Abridged)*

Section 1 Project Overview • The goal of the Corporations and Human Rights Database Project is to systematically code alleged corporate human rights abuses, using information from the Business & Human Rights Resource Centre (BHRRC) and information found in reputable national and international news sources. • The unit of analysis is a company abuse allegation (CAA). A CAA is an instance in which some group and/or individual accuses a company of a human rights abuse. • In addition to coding sources that originate from the BHRRC website, coders are encouraged to review additional sources found through Lexis Nexis Academic All News database, Google/Google Scholar, and websites for company-specific information, as well as other online sources, as appropriate. Section 2 The Survey Tool • The team completes a Google Form for capturing information about each company abuse allegation (CAA) in the database. • The survey includes questions that require “Yes,” “No,” and “UTD” responses. Coders choose “No” if, after searching all the sources, there was no evidence to support an affirmative answer. Coders choose “UTD” when there was mention in an article that the answer might be yes, but there was not enough to make a “Yes” selection. Coders choose “Yes” when there is evidence that supports this answer.

*

Please see www.bhrlab.com for additional information.

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Section 2.1 Company and Allegation Description • • • • •

Company Name Parent Company Company Consortia Joint Ventures Unique ID

• Company • Company • Company • Company

Website Allegation Description Sector Subsector

Section 2.2 Violation Characteristics • • • • • • •

Violation Type Related Violation(s) Violation Location Company Sector and Subsector Violation City or Region Violation Start Date Violation Start Date Description

• Ongoing Violation • Date the Allegation Was First Reported • Allegation Date vs. Violation Start Date • Allegation Date Description

Section 2.3 Parties Involved • Affected Party/Parties • Degree of Company Involvement in Violation • State Involvement • Description of State Involvement/ Response • Name Person/Group who Reported the Violation

• Other Group(s) Involved • Type of Involvement by Other Group(s) • Third-Party Verification of the Violation

Section 2.4 Response • Company Response When Allegation First Made • Company Response Date

• Company Response Type • Description of Company Response

Section 2.5 Judicial Remedy • Party that Initiated the Judicial Action • Judicial Action Type • Judicial Action Reached a Court • Defendant Type • First Date of Judicial Action Filing • Current Status of Judicial Action

• Last Known Court Level • Date of Last Decision • Court Name • Court Location • Description of Judicial Action • Damages, if applicable • Sentence Length, if applicable

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Section 2.6 Non-Judicial Remedy • Party that Initiated the NJ Remedy • Names and Actions of Organizations that Participated in the NJ Remedy Attempt • Remedy Outcome

• Type of NJ Activity or Mechanism • Remedy Start Date • Ongoing Non-Judicial Remedy • Remedy Description

Section 2.7 Protests, Strikes, and Demonstrations • Evidence of the Following Events Associated with the CAA • Organized Demonstration • Spontaneous Demonstration • Organized Violent Riot • Spontaneous Violent Riot • General Strike • Limited Strike • Anti-Government Violence

• Event Was Violent or Non-Violent • Location of Event • Duration of Event • Description of Event • Evidence and Description of Company Retaliation Against Alleged Victims or Their Advocates

Section 2.8 Source List

violation types (sourced from the bhrrc) PHYSICAL INTEGRITY ABUSE Arbitrary detention Child labor/forced labor Deaths Denial of freedom of movement Disappearances/abduction Displacement (violent) Human trafficking Intimidation/threats Rape/sexual abuse Slavery Violence (e.g. torture and beatings) DEVELOPMENT AND POVERTY Denial of freedom of association Denial of freedom of expression Denying access to basic needs

Destruction of local economies Displacement (non-violent) Encroachment on/exploitation of land/property Lack of investment in/exploitation of local economy No support from communities/ right to prior consultation ENVIRONMENT Air contamination Deforestation Destruction of wildlife Land contamination Land erosion/impossibility to harvest Unsustainable use of natural resources Water contamination

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HEALTH Access to medicine Health problems (all health problems different from those derived directly from pollution) Mental health Pollution-related health concern

Denial of freedom of expression (labor specific) Failure to meet basic labor standards Prison labor Substandard wages

LABOR Denial of freedom of association (right to unionize)

industry categories (sourced from the bhrrc) AGRICULTURE Agriculture and livestock Agricultural machinery Baby food and baby milk Biofuels Candy Canneries Chocolate and cocoa Coffee Fishing Flower Food and beverage Palm trees and oil Salt Slaughterhouses Sugar Tea Tobacco Wineries APPAREL AND TEXTILE Clothing and textile Footwear Leather and tanneries Chemical Adhesives and glue Cleaning products Dye

Ethanol Fertilizer Ink Industrial gases Paint Pesticide Refrigerant COMMERCIAL SEX AND PORNOGRAPHY Pornography Postitution and sex trafficking CONGLOMERATES CONSTRUCTION AND BUILDING MATERIALS Air conditioning Asbestos Brick Building materials and equipment Cement Construction Construction machinery and vehicles Dam building Flooring

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Heating and boilers Insulation Road building Tool Welding CONSUMER PRODUCTS/ RETAIL Baby product Bakeries Battery Ceramics Cookware Cosmetics Departmental stores Electrical appliance Greeting card and gift-wrap Handcrafts Household products Jewelry Luggage, backpacks, and bags Match Memorabilia/collectibles Musical instrument Newsagents Office equipment Office supplies and stationery Perfume Photographic Retail Supermarkets and grocery Tableware Toiletries and soap Toy Watch and clock Wholesale Wigs FINANCE Banking Insurance

183

Stock exchange FURNISHINGS Carpet and rug Furniture Lighting and light bulb Wallpaper GARDEN/LANDSCAPE HEALTH Biotechnology Drug testing Health care Medical equipment/supplies Pharmaceuticals Pharmacies LEISURE Amusement park Boat and yacht Entertainment Fireworks Gambling LEISURE (cont.) Lottery Nightclubs Restaurants and bars MANUFACTURING/ MACHINERY MEDIA/PUBLISHING METALS/PLASTICS/BASIC MATERIALS Fiberglass Foam Glass Metals and steel Plastics Rubber Soda ash

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MILITARY/WEAPONS/ SECURITY EQUIPMENT NATURAL RESOURCES Cork Diamond Logging and lumber Mining Oil, gas, and coal Ethanol Paper and cardboard Petrol stations Sand Stone quarries PROFESSIONAL SERVICES Advertising and marketing Architecture Auditing, consulting, and accounting Engineering Law firms Public relations REAL ESTATE/PROPERTY DEVELOPMENT SAFETY DEVICES SERVICES Auto repair and maintenance Beauty schools Call center Catering and food services Cleaning and maintenance Dating agencies Domestic worker agencies Education companies Employment agencies Funeral Laundries and dry cleaners

Moving Printing and copying Prison companies Security companies Storage SHIPPING AND HANDLING Express delivery Freight handling Forklift Packaging Ports Postal services Shipping, ship-building, and ship-scrapping Trucking SPORTS TECHNOLOGY Internet companies Technology, telecom, electronics

and

TRANSPORT Aircraft/airline Airports Auto parts Auto rental Auto wrecking and salvage Automobile and other motor vehicles Bicycle Bus Ferry Railroad Snowmobile Taxi Tire TRAVEL Cruise ship

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Appendices

Hotel Tourism UTILITIES Energy

185

Nuclear energy Waste disposal Water companies

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appendix b: data and models for chapter 4

Data Sources and Operationalization

The source for each variable is included in parentheses while the text describes the operationalization of each variable included in the analysis of access to judicial remedy.

dependent variables Trial (CHRD) – indicates that a legal action was brought before a judge or a jury. In the CHRD, it is quite common that victims or their advocates will initiate a legal process, but no actual trial occurs. For example, if the judge receives a complaint but decides to take no action. This variable, in contrast, indicates only those instances in which a trial was initiated. The CHRD includes the year in which the trial began. This variable is dichotomous. Criminal Trials (CHRD) – a criminal trial is initiated by the government on behalf of the injured party. The coders gathered information about outcomes to determine if it was a criminal proceeding (such as prison sentences, fines, and reparations for victims) to discern the type of trial that took place. The CHRD includes the year in which the criminal trial began. This variable is dichotomous. Civil Trial (CHRD) – a civil trial is initiated by an individual or group seeking damages from a defendant, which in this case is a company or their representative. The coders looked for outcomes of civil proceedings, which often have the objective of compensating the injured party for the harm they suffered and identifying responsibility for the wrongdoing of the defendant, to determine if it was a civil proceeding. This coding also includes constitutional cases, which are prevalent in Latin America, and are often referred to as “amparo” or “tutela.” See footnote 18 in Chapter 4 for a discussion on these 187

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Appendices

processes and their implications in the corporate context. The CHRD includes the year in which the civil trial began. This variable is dichotomous.

independent variables Rule of Law (Freedom House) – is an annual indicator of whether there is an independent judiciary and equal treatment of the population on a scale of 0 (weak) to 16 (strong). Freedom House measures rule of law by assessing whether the judiciary is free from interference from the executive branch or other political, economic, or religious influences or whether due process prevails in civil and criminal matters (e.g. whether defendants’ rights, including the presumption of innocence until proven guilty, are protected). This rule of law measure also captures whether citizens enjoy protection from the illegitimate use of physical force and whether the laws, policies, and practices in a given country guarantee equal treatment of various segments of the population. Profits (Orbis) – is the annual profit margin for the firm, by firm-year. These data are drawn from a propriety dataset, Orbis, which has the most comprehensive coverage of firm-level data around the world. Size (Orbis) – is the annual measure of total assets of the firm (logged), which is a commonly used approximation for firm size (Seaborn, et al. 2018). These data are drawn from a propriety dataset, Orbis, which has the most comprehensive coverage of firm-level data around the world. Foreign (CHRD) – is a dichotomous variable that indicates whether the company’s headquarters are located in a country other than the one in which the violation occurred. NGO Support (CHRD) – is a dichotomous variable that indicates whether a domestic-based NGO helped elevate victims’ voices (e.g. NGOs provided material or immaterial resources, joined in protests, conducted surveys, etc.). INGO Support (CHRD) – is a dichotomous variable that indicates whether an INGO helped elevate victims’ voices (e.g. INGOs provided material or immaterial resources, joined in protests, conducted surveys, etc.).

control variables Democratic Quality (Polity IV) – Polity2 is an annual measure of political regime authority on a 21-pont scale ranging from –10 (hereditary monarchy) to +10 (consolidated democracy). It captures “autocracies” (–10 to –6), “anocracies” (–5 to +5), and “democracies” (+6 to +10).

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GDP Growth (WDI) – Gross domestic product growth (annual %), as reported in the World Bank’s World Development Indicators from World Bank national accounts data and OECD National Accounts Data files. GDP is the sum of gross value added by all resident producers in the economy plus any product taxes and minus any subsidies not included in the value of the products. GDP growth represents the percentage change year over year. GDP Per Capita (WDI) – GDP per capita is an annual measure of gross domestic product divided by midyear population, logged, as reported in the World Bank’s World Development Indicators from World Bank national accounts data and OECD National Accounts Data files. State Human Rights (Political Terror Scale) – captures an annual level of state-sponsored human rights abuses, as reported by the US Department of State. Reports are scored on a five-point scale; higher scores indicate higher levels of abuse of physical integrity rights by state actors than lower scores. Oil Rents (% GDP) (WDI) – the difference between the value of crude oil production at world prices and total costs of production, as a percentage of a country’s GDP in any given year. Mineral Rents (% GDP) (WDI) – the difference between the value of production for a stock of minerals at world prices and their total costs of production, as a percentage of a country’s GDP in any given year. Minerals included in the calculation are tin, gold, lead, zinc, iron, copper, nickel, silver, bauxite, and phosphate. Manufacturing Exports (% of Merchandise Exports) (WDI) – comprise commodities in various industries (ISIC divisions 5–8, which include chemicals, basic manufactures, machinery and transport equipment, and miscellaneous manufactured goods) in any given country-year. Firm’s Prior Human Rights Abuses (CHRD) – is a cumulative measure of previous allegations of gross human rights abuse by the firm, including only physical integrity violations. Severity of Abuse (CHRD) – is a dichotomous variable that designates whether the allegation in question was a physical integrity violation, the most severe human rights violation. Non-Judicial Remedy Efforts (CHRD) – captures whether the allegation was met with a non-judicial remedy effort. Standard Industrial Classification (SIC) – SIC codes are four-digit numerical codes assigned by the US government to business establishments to identify the primary business of the establishment. The classification was developed to facilitate the collection, presentation, and analysis of data; and to promote uniformity and comparability in the presentation of statistical data collected by various agencies of the federal government, state agencies, and

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190

private organizations. These are not included in the following models, due to space limitations. Time – each model includes year-fixed effects to account for changes over time; though available by request, they are not displayed in the following tables. See the footnote in Table 2A for an exception to the year-fixed effects due to lack of variation in the dependent variable for criminal trials, specifically.

model specification The specifications in Chapter 4 are logistic models, as the unit of analysis is a corporate abuse allegation and each of the dependent variables is dichotomous. Logistic regression predicts the probability that an observation falls into one of the two categories of a dichotomous dependent variable. In addition to the industry- and year-level controls, the standard errors are clustered by country in each model since a portion of the error term is likely associated with factors that are unique to each country in the sample.

summary statistics

Variable

Minimum

Maximum

Mean

Trial

0

1

0.16

Criminal Trial

0

1

Civil Trial

0

1

Rule of Law Profits

Standard Deviation

Number of Observations

0.37

1007

0.04

0.2

1007

0.12

0.33

1007

2.57

1007

5

15

8.43

–65.65

100

11.82

18.8

400

Size (logged)

0.69

Foreign

0

1

0.46

0.5

924

NGO Support

0

1

0.16

0.37

1007

INGO Support

0

1

0.16

0.37

1007

Democratic Quality GDP Growth

5

10

7.92

1.02

1005 1003

20.92

13.7

3.89

434

–10.89

12.11

4

3.2

GDP per Capita

6.87

9.18

8.37

0.52

911

State Respect for Human Rights Oil Rents (% GDP)

1

5

3.02

0.86

1005

0

25.3

4.25

4.4

998

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Appendices

Variable

Minimum

Maximum

191

Mean

Standard Deviation

Number of Observations

Mineral Rents (% GDP) Manufacturing Exports (% Merch. Exports) Previous Corporate Abuse Severity of Abuse

0

20.96

2.25

4.4

1003

4.09

93.46

36.16

21.6

915

Non-Judicial Remedy Efforts

0

7

0.69

1.02

1007

0

1

0.29

0.45

1007

0

1

0.26

0.44

974

models table 1. Institutional strength and judicial remedy

Rule of Law

(Model 1)

(Model 2)

(Model 3)

DV: Trial

DV: Criminal Trial

DV: Civil Trial

0.450***

0.659***

0.327***

(0.105)

(0.166)

(0.090)

Oil (% GDP)

–0.059

–0.205

–0.038

(0.062)

(0.180)

(0.066)

Mineral (% GDP)

–0.101*

–0.016

–0.108*

(0.048)

(0.083)

(0.052)

0.007

0.027

–0.003

(0.015)

(0.021)

Manufactures Exports (% of Merchandise Exports) Severity of Abuse Previous Abuse Democratic Quality

0.246

2.686**

(0.017) –1.038**

(0.358)

(0.823)

(0.327)

–0.113

–0.244

–0.062

(0.156)

(0.732)

(0.139)

–0.110

–1.141

(0.401)

(1.133)

0.232 (0.465) (continued)

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192

table 1. (continued) (Model 1)

(Model 2)

(Model 3)

DV: Trial

DV: Criminal Trial

DV: Civil Trial

State Respect for Human Rights

0.569

0.205

0.595

(0.389)

(0.461)

(0.401)

0.067

–0.094

0.097

(0.051)

(0.085)

(0.063)

–0.227

–2.231*

1.022

(0.632)

(0.878)

(0.912)

–0.402

–1.710*

–0.243

GDP Growth GDP per Capita (logged) Non-Judicial Remedy

(0.258) Observations

769

Pseudo R2

(0.861) 480

0.243

0.422

(0.396) 737 0.281

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

table 2a. Corporate characteristics and judicial remedy1

Profit Margin

(Model 1)

(Model 2)

(Model 3)

DV: Trial

DV: Criminal Trial

DV: Civil Trial

–0.021**

–0.058***

–0.016 (0.011)

(0.008)

(0.013)

Size (logged)

0.096

–0.059

(0.094)

(0.160)

(0.083)

Foreignness

–2.010***

–0.362

–2.596**

(0.533) Oil (% GDP)

(1.094)

0.228**

(0.819)

–0.271

–0.279

–0.284+

(0.098)

(0.244)

(0.168)

0.417

–0.205*

**

Mineral (% GDP)

–0.133 (0.116)

(0.357)

(0.100)

Manufactures Exports (% of Merchandise Exports)

–0.019

–0.028

–0.032

(0.019)

(0.048)

(0.024)

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Appendices

Severity of Abuse

193

(Model 1)

(Model 2)

(Model 3)

DV: Trial

DV: Criminal Trial

DV: Civil Trial

1.903***

0.437

–0.579

(0.488)

(0.490)

(0.646)

Previous Abuse

–0.205

–0.436

–0.207

(0.225)

(1.005)

(0.259)

Democratic Quality

–1.016

–1.584

–1.097

(0.672)

(1.534)

(0.711)

*

1.209

–0.692

(0.482)

(0.451)

State Respect for Human Rights

–0.235 (0.508)

GDP Growth GDP per Capita (logged) Non-Judicial Remedy

0.042

–0.214

0.092+

(0.080)

(0.217)

(0.052)

+

0.938

3.385*

(1.251)

(2.671)

(1.616)

–0.495

0.000

0.230

2.220

(0.568) (0.813) Observations

224

(.) (0.896) 99

(0.961) (1.589) 224

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001 1 The number of observations in models with firm-level data drops primarily due to missing values from BvD/Orbis. Although it is the most comprehensive source for firm-level data globally, there are still gaps in its coverage. A secondary reason is that the controls for each year perfectly determine the dependent variable; this is particularly acute in Model 2. As such, these models include an indicator variable for whether the abuse occurred after 2011, when the UNGPs were adopted; if controls were included for each year, the models would not converge. All models, however, still include industry-level controls.

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Appendices

table 2b: Corporate characteristics and judicial remedy, interaction between domestic * profit

Domestic * Profit Profit Margin Size (logged) Domestic

(Model 1)

(Model 2)

(Model 3)

DV: Trial

DV: Criminal Trial

DV: Civil Trial

0.052*

0.022

0.123+

(0.025)

(0.066)

(0.073)

–0.069

–0.077

–0.133*

(0.024)

(0.047)

(0.066)

0.097

–0.058

0.248*

(0.096)

(0.162)

(0.097)

**

1.655**

0.206

1.963**

(0.584)

(0.658)

(0.703)

Oil (% GDP)

–0.281**

–0.284

–0.323+

(0.104)

(0.259)

(0.191)

Mineral (%GDP)

–0.128

0.419

–0.209+

(0.123)

(0.349)

(0.114)

–0.019

–0.031

–0.036

(0.019)

(0.054)

(0.027)

Manufactures exports (% of merchandise exports) Severity of Abuse Previous Abuse Democratic Quality State Respect for Human Rights

GDP per capita Non-Judicial Remedy Observations

–0.597

0.460

1.921

(0.495)

(0.543)

(0.662)

–0.231

–0.482

–0.263

(0.226)

(1.134)

(0.269)

–1.093

–1.607

–1.259

(0.727)

(1.571)

–0.215 (0.520)

GDP Growth

***

0.035

(0.850)

1.270*

–0.671

(0.509)

(0.474)

–0.221

0.078

(0.083)

(0.196)

(0.054)

2.319+

1.004

3.645*

(1.243)

(2.867)

(1.613)

–0.498

0.000

0.262

(0.579)

(.)

(1.052)

224

99

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

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224

Appendices

195

table 2c. Corporate characteristics, interaction between foreignness * size (Model 1)

(Model 2)

(Model 3)

DV: Trial

DV: Criminal Trial

DV: Civil Trial

0.232

0.473*

–0.020

(0.200)

(0.193)

(0.256)

–0.018

–0.066

–0.016+

(0.005)

(0.023)

(0.010)

Foreign * Size

***

Profit Margin Size (logged)

**

–0.132

0.042

0.234+

(0.113)

(0.174)

(0.142)

–5.504

–7.282

–2.298

(3.003)

(2.491)

(3.593)

Oil (% GDP)

–0.295**

–0.246

–0.282+

(0.098)

(0.270)

(0.154)

Mineral (% GDP)

–0.144

0.321

–0.204*

(0.121)

(0.334)

(0.102)

Manufactures exports (% of Merchandise Exports)

–0.023

–0.050

–0.032

(0.021)

(0.044)

+

Foreignness

Severity of Abuse

2.127***

0.490

Previous Abuse Democratic Quality State Respect for Human Rights

(0.445)

(0.588)

(0.591)

–0.159

–0.211

(0.226)

(1.090)

(0.290)

–1.042

–1.005

–1.094

(0.683)

(1.492)

–0.315

1.030

*

(0.693) –0.688

(0.562)

(0.525)

(0.462)

0.042

–0.186

0.092+

(0.077)

(0.198)

(0.052)

2.506+

1.559

3.350+

(1.464)

(2.558)

(1.866)

0.000

0.231

GDP per Capita (logged) Non-Judicial Remedy

–0.488

Observations

224

(0.545)

***

(0.024) –0.587

–0.160

GDP Growth

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01,

**

(.) 99

p < 0.001

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(0.964) 224

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196

table 3. Elevating voices and judicial remedy (Model 1)

(Model 2)

(Model 3)

DV: Trial

DV: Criminal Trial

DV: Civil Trial

–0.533

0.789+

(0.418)

(1.022)

(0.453)

–0.933

–3.128

–0.337

NGO Support INGO Support

0.523 *

(0.449) NGO Reporting INGO Reporting

*

(1.334) *

(0.679) –0.312

0.258

1.371

(0.353)

(0.551)

(0.419)

–1.304

–2.590

–0.802

*

**

(0.599)

(0.899)

(0.731)

Foreignness

–1.084**

–0.238

–1.462*

(0.364)

(0.291)

(0.612)

Oil (% GDP)

–0.153+

–0.297

–0.125

(0.083)

(0.223)

(0.146)

Mineral (% GDP)

–0.087+

0.148

–0.127**

(0.048)

(0.169)

(0.041)

Manufactures Exports (% of Merchandise Exports)

–0.012

0.022

–0.018

(0.014)

(0.028)

Previous Abuse

3.232**

–1.102**

(0.451)

(1.196)

(0.422)

–0.202

–0.597

–0.035

(0.131)

(0.596)

(0.134)

0.041

–1.276

0.401

(0.483)

(1.490)

(0.624)

Democratic Quality

–0.329

0.231

(0.433)

(0.530)

(0.431)

–0.024

–0.282

0.054

(0.056)

(0.177)

(0.078)

0.626

–0.879

1.558*

State Respect for Human Rights GDP Growth

0.214

GDP per Capita (logged) Non-Judicial Remedy Observations

(0.012)

0.362

Severity of Abuse

(0.509)

(1.015)

(0.743)

–0.627*

–1.491***

–0.403

(0.260)

(0.340)

(0.455)

589

446

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

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appendix c: data and models for chapter 5

Data Sources and Operationalization

The source for each variable is included in parenthesis while the text describes the operationalization of each variable included in the analysis of access to non-judicial remedy.

dependent variables Non-Judicial Remedy (CHRD) – indicates that some effort was initiated to seek to resolve the allegation in question. As noted in the text, there is a very broad definition of non-judicial remedy mechanisms. This analysis, however, focuses on those non-judicial remedy mechanisms that are initiated by states or corporations, as outlined here. This is a dichotomous variable. State-led Non-Judicial Remedy (CHRD) – indicates that the state initiated the non-judicial remedy associated with the specific allegation of interest. State-led non-judicial remedy mechanisms can include administrative proceedings leading to sanctions, state-based investigations, or fines. Though less frequent, states can also initiate multi-stakeholder efforts or dialogue tables. This is a dichotomous variable. Corporate-led Non-Judicial Remedy (CHRD) – indicates that the firm initiated the non-judicial remedy associated with the specific allegation of interest. Corporate-led non-judicial remedy mechanisms can include internal audits, newly established grievance mechanisms, financial or non-financial compensation, restitution, rehabilitation, or guarantees of non-repetition. Though less frequent, companies can also initiate multi-stakeholder efforts or dialogue tables. This is a dichotomous variable.

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198

Appendices

independent variables Rule of Law (Freedom House) – is an annual indicator of whether there is an independent judiciary and equal treatment of the population on a scale of 0 (weak) to 16 (strong). Freedom House measures rule of law by assessing whether the judiciary is free from interference from the executive branch or other political, economic, or religious influences or whether due process prevails in civil and criminal matters (e.g. whether defendants’ rights, including the presumption of innocence until proven guilty, are protected). This rule of law measure also captures whether citizens enjoy protection from the illegitimate use of physical force and whether the laws, policies, and practices in a given country guarantee equal treatment of various segments of the population. Profits (Orbis) – is the annual profit margin for the firm, by firm-year. These data are drawn from a propriety dataset, Orbis, which has the most comprehensive coverage of firm-level data around the world. Size (Orbis) – is the annual measure of total assets of the firm (logged), which is a commonly used approximation for firm size (Seaborn, et al. 2018). These data are drawn from a propriety dataset, Orbis, which has the most comprehensive coverage of firm-level data around the world. NGO Support (CHRD) – is a dichotomous variable that indicates whether a domestic-based NGO helped elevate victims’ voices (e.g. NGOs provided material or immaterial resources, joined in protests, conducted surveys, etc.). INGO Support (CHRD) – is a dichotomous variable that indicates whether an INGO helped elevate victims’ voices (e.g. INGOs provided material or immaterial resources, joined in protests, conducted surveys, etc.).

control variables Democratic Quality (Polity IV) – Polity2 is an annual measure of political regime authority on a 21-pont scale ranging from −10 (hereditary monarchy) to +10 (consolidated democracy). It captures “autocracies” (–10 to –6), “anocracies” (–5 to +5), and “democracies” (+6 to +10). GDP growth (WDI) – Gross domestic product growth (annual %), as reported in the World Bank’s World Development Indicators from World Bank national accounts data and OECD National Accounts Data files. GDP is the sum of gross value added by all resident producers in the economy plus any product taxes and minus any subsidies not included in the value of the products. GDP growth represents the percentage change, year over year.

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GDP per capita (WDI) – GDP per capita is an annual measure of gross domestic product divided by midyear population, logged, as reported in the World Bank’s World Development Indicators from World Bank national accounts data and OECD National Accounts Data files. State Human Rights (Political Terror Scale) – captures an annual level of state-sponsored human rights abuses, as reported by the US Department of State. Reports are scored on a five-point scale; higher scores indicate higher levels of abuse of physical integrity rights by state actors than lower scores. Oil rents (% GDP) (WDI) – Oil rents are the difference between the value of crude oil production at world prices and total costs of production, as a percentage of a country’s GDP in any given year. Mineral rents (% GDP) (WDI) – Mineral rents are the difference between the value of production for a stock of minerals at world prices and their total costs of production, as a percentage of a country’s GDP in any given year. Minerals included in the calculation are tin, gold, lead, zinc, iron, copper, nickel, silver, bauxite, and phosphate. Manufacturing exports (% of Merchandise Exports) (WDI) – Manufacturing exports comprise commodities in various industries (ISIC divisions 5–8, which include chemicals, basic manufactures, machinery and transport equipment, and miscellaneous manufactured goods) in any given country-year. Foreign (CHRD) – is a dichotomous variable that indicates whether the company’s headquarters are located in a country other than the one in which the violation occurred. Firm’s Prior Human Rights Abuses (CHRD) – A cumulative measure of previous allegations of gross human rights abuse by the firm, including only physical integrity violations. Severity of Abuse (CHRD) – A dichotomous variable to designate whether the allegation in question was a physical integrity violation, the most severe human rights violation. Judicial Remedy Efforts (CHRD) – Captures whether the allegation was met with a judicial remedy effort. Other Non-Judicial Remedy Efforts (CHRD) – Captures whether the allegation was met with a non-judicial remedy effort led by some other party, besides the state or the corporation. Standard Industrial Classification (SIC) – SIC codes are four-digit numerical codes assigned by the US government to business establishments to identify the primary business of the establishment. The classification was developed to facilitate the collection, presentation and analysis of data; and to promote uniformity and comparability in the presentation of statistical data

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collected by various agencies of the federal government, state agencies and private organizations. These are not included in the models below, due to space limitations. Time – Each model includes year fixed effects to account for changes over time; they are not displayed in the tables below, however, due to space limitations.

model specification Chapter 5, like Chapter 4, employs a logistic model, as the unit of analysis is a corporate abuse allegation and each of the dependent variables are dichotomous. Logistic regression predicts the probability that an observation falls into one of the two categories of a dichotomous dependent variable. In addition to the industry- and year-level controls, I also cluster the standard errors by country since a portion of the error term is likely associated with factors inside each country in the sample.

summary statistics

Variable Non-Judicial Remedy State-led NonJudicial Remedy Corporate-led Non-Judicial Remedy Other Non-Judicial Remedy Rule of Law Profits

Minimum

Maximum

Mean

Standard Deviation

Number of Observations

0

1

0.26

0.44

974

0

0

0.11

0.31

974

1

1

0.08

0.27

974

0

1

0.06

0.23

974

2.57

1007

5

15

8.43

–65.65

100

11.82

18.8

400

Size (logged)

0.69

13.7

3.89

434

NGO Support

0

1

0.16

0.37

1007

INGO Support

0

1

0.16

0.37

1007

Democratic Quality GDP Growth

5

10

7.92

1.02

1005

12.11

4

3.2

1003

–10.89

20.92

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Appendices

Variable

Minimum

Maximum

201

Mean

Standard Deviation

Number of Observations

GDP per Capita

6.87

9.18

8.37

0.52

911

State Respect for Human Rights Oil Rents (% GDP) Mineral Rents (% GDP) Manufacturing Exports (% Merch. Exports) Previous Corporate Abuse Severity of Abuse

1

5

3.02

0.86

1005

0

25.3

4.25

4.4

998

0

20.96

2.25

4.4

1003

4.09

93.46

36.16

21.6

915

Judicial Remedy Efforts

0

7

0

1

0

1

0.69 0.29 016

1.02

1007

0.45

1007

0.37

1007

models table 1. Institutional strength and non-judicial remedy

Rule of Law Oil (% GDP) Mineral (% GDP)

(Model 1)

(Model 2)

(Model 3)

DV: NJ Remedy

DV: State NJ Remedy

DV: Corp NJ Remedy

–0.197**

–0.212+

–0.055

(0.075)

(0.118)

(0.114)

–0.010

–0.069

–0.082

(0.044)

(0.063)

(0.071)

0.030

0.006

(0.067)

(0.042)

0.107** (0.038)

Manufacturing Exports (% of Merchandise Exports)

0.002

–0.017

0.002

(0.012)

(0.026)

(0.013)

Severity of Abuse

–0.144

0.473

–0.619

(0.265)

(0.446)

(0.483)

Previous Abuse

–0.115+

–0.213+

(0.067)

(0.128)

0.310*** (0.081) (continued)

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table 1. (continued)

Democratic Quality State Respect for Human Rights

(Model 1)

(Model 2)

(Model 3)

DV: NJ Remedy

DV: State NJ Remedy

DV: Corp NJ Remedy

0.091

–0.029

–0.025

(0.243)

(0.398)

(0.165)

–0.156

–0.194

(0.245)

(0.360)

0.017 (0.204)

–0.008

0.031

0.051

(0.041)

(0.061)

(0.073)

GDP per Capita (logged)

–0.047

0.851

–0.320

(0.472)

(0.827)

(0.720)

Judicial Remedy

–0.351

–1.710*

0.375

(0.242)

(0.817)

(0.329)

GDP Growth

1.054*

Corporate-led NJ Remedy

(0.532) Other NJ Remedy

–0.332

0.772+

(0.585)

(0.434) 0.947*

State-led NJ Remedy

(0.468) Observations

774

683

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

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Profit Margin

(1)

(2)

(3)

(4)

(5)

(6)

State NJ Remedy

State NJ Remedy

State NJ Remedy

Corp NJ Remedy

Corp NJ Remedy

Corp NJ Remedy

0.013**

0.016***

(0.005) Size (logged)

(0.005)

0.006

0.005

(0.017)

(0.018)

–0.262**

–0.255*

0.153*

0.237*

(0.092)

(0.107)

(0.066)

(0.097)

–0.695

Foreign

–0.712

(0.515)

(0.961)

Rule of Law

–0.505+ (0.266)

(0.293)

(0.305)

(0.359)

(0.404)

(0.413)

Oil (% GDP)

–0.087

–0.065

–0.042

–0.050

–0.069

–0.087

(0.141)

(0.139)

(0.154)

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table 2. Corporate characteristics and non-judicial remedy

Mineral (% GDP) Manufacturing Exports (% of Merchandise Exports) Severity of Abuse Previous Abuse

0.301*

–0.347

0.354**

–0.424

0.367**

0.014

0.066

–0.102

(0.102)

(0.103)

(0.103)

–0.106

–0.205+

–0.186+

(0.123)

(0.137)

(0.140)

(0.084)

(0.108)

(0.104)

–0.008

–0.002

0.014

–0.035

–0.060

–0.066

(0.029)

(0.036)

(0.039)

(0.032)

(0.039)

(0.049)

–0.110

–0.489

–0.557

–1.783

+

–1.439

–1.862*

(0.639)

(0.487)

(0.822)

(0.775)

(0.787)

(0.942)

–0.118

–0.118

–0.027

0.595

(0.098)

(0.081)

(0.083)

(0.177)

*

***

0.554

***

(0.162)

0.579*** (0.155) (continued)

(1)

(2)

(3)

(4)

(5)

(6)

State NJ Remedy

State NJ Remedy

State NJ Remedy

Corp NJ Remedy

Corp NJ Remedy

Corp NJ Remedy

–1.255**

–1.549**

–1.516**

0.643+

0.704+

0.845

(0.479)

(0.473)

(0.517)

(0.375)

(0.393)

(0.516)

–1.395*

–1.247*

–1.556**

0.024

0.075

–0.026

GDP Growth

(0.584)

(0.550)

(0.593)

(0.253)

(0.267)

(0.362)

0.083

0.111

0.168

0.051

0.033

0.039

GDP per Capita (logged)

(0.164)

(0.176)

(0.194)

(0.156)

(0.135)

(0.155)

1.883

2.327+

1.871

–0.045

(1.202)

(1.399)

(1.475)

(1.504)

–2.339+

–3.334***

–2.731*

1.124+

(1.244)

(1.004)

(1.102)

(0.600)

(0.626)

(0.638)

0.836

0.875

0.821

(0.612)

(0.628)

(0.644)

Democratic Quality State Respect for Human Rights

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table 2. (continued)

lgdppc Other NJ Remedy Judicial Remedy Corporate-led NJ Remedy

1.650

2.277+

1.704

(1.431)

(1.268)

(1.458) 1.150*

State-led NJ Remedy

(0.517) Observations

220

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

242

220

266

0.365

0.324

(1.648)

(1.637)

1.703**

1.834** (0.667) 292

1.154+

1.666** (0.589) 266

Appendices

205

table 3. Elevating voices and non-judicial remedy

NGO Support * Previous Abuse INGO Support * Previous Abuse NGO Support INGO Support Rule of Law Oil (% GDP) Mineral (% GDP)

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

(Model 6)

DV: State NJ Remedy

DV: State NJ Remedy

DV: State NJ Remedy

DV: Corp NJ Remedy

DV: Corp NJ Remedy

DV: Corp NJ Remedy

–0.221 (0.355) 0.314

–0.286

–0.794

–0.718

(0.503)

(0.540)

(0.618)

–1.806**

–1.600***

(0.566)

(0.426)

(0.537)

Democratic Quality

–0.188

–0.066

–0.065

−0.050

(0.139)

(0.137)

(0.138)

(0.110)

(0.110)

(0.117)

–0.065

–0.101

–0.069

–0.079

–0.077

−0.072

(0.067)

(0.069)

(0.070)

(0.071)

(0.071)

(0.074)

0.018

0.028

0.019

0.001

0.002

0.008

0.597

(0.068)

(0.058)

(0.041)

(0.040)

(0.044)

–0.018

–0.017

–0.000

–0.000

0.003

(0.026)

(0.023)

(0.012)

(0.012)

(0.013)

0.570

0.596

–0.545

–0.539

–0.603

(0.436)

(0.449)

(0.468)

(0.500)

(0.506)

(0.493)

–0.238*

–0.450*

–0.219*

(0.119)

(0.210)

(0.109)

(0.082)

(0.095)

(0.095)

0.030

–0.202

0.006

0.020

0.031

0.022

(0.181)

(0.172)

(0.192)

0.025

0.034

0.033

(0.213)

(0.197)

(0.223)

(0.377)

GDP per Capita (logged)

(0.570)

–0.225

State Respect for –0.113 Human Rights (0.386) GDP Growth

−0.218

0.046

–0.184

(0.059)

Previous Abuse

0.259 (0.172)

(0.469)

Manufactures –0.017 Exports (% of Merchandise Exports) (0.024) Severity of Abuse

–0.065 (0.128)

0.594* (0.258)

(0.439)

(0.380)

–0.258

–0.124

(0.368)

(0.382)

0.316***

0.331***

0.274**

0.029

0.023

0.024

0.043

0.045

0.057

(0.060)

(0.060)

(0.061)

(0.071)

(0.074)

(0.070)

0.718

1.072

0.752

–0.251

–0.268

–0.395

(0.892)

(0.834)

(0.873)

(0.714)

(0.713)

(0.733) (continued)

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table 3. (continued)

Other NJ Remedy

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

(Model 6)

DV: State NJ Remedy

DV: State NJ Remedy

DV: State NJ Remedy

DV: Corp NJ Remedy

DV: Corp NJ Remedy

DV: Corp NJ Remedy

–0.270

–0.330

0.772+

0.775+

0.762+

(0.414)

(0.416)

(0.434)

(0.783) Judicial Remedy –1.940

(0.570)

(0.776)

–1.704

–1.926

0.437

0.427

0.384

(0.777)

(0.764)

(0.784)

(0.402)

(0.374)

(0.356)

1.085+

1.107*

1.078+

(0.580)

(0.502)

(0.568) 1.011+

1.012*

0.956+

*

Corporate-led NJ Remedy

–0.280

*

*

State-led NJ Remedy

(0.545) Observations

683

683

683

749

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

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(0.492) 749

(0.520) 749

appendix d: data and models for chapter 6

Data Sources and Operationalization

In this section, the source for each variable is included in parenthesis while the text describes the operationalization for each data point included in the analysis of access to judicial remedy.

dependent variables Physical Integrity (CIRI) – an additive scale for representing a government’s avoidance of repressive violence, built from data on political imprisonment, torture, unlawful killing, and disappearance. The Physical Integrity measure is an index from 0 to 8 because it measures four dimensions of repressive violence, all scaled 0–2. These data are drawn from the Cingranelli-Richards Human Rights (CIRI) database. Civic Empowerment (CIRI) – is constructed by aggregating data on freedom of speech, freedom of assembly and association, workers’ rights, electoral self-determination, foreign movement, domestic movement, freedom of religion. The Empowerment Index measure is a 15-point index measuring seven different subcomponents. These data are drawn from the Cingranelli-Richards Human Rights (CIRI) database.

independent variables Confrontation (CHRD) – indicates that a claim about corporate human rights abuse was made in a given country-year. This measure is aggregated over time in each panel to assess the long-term effect of victims’ claims. Non-Judicial Remedy (CHRD) – indicates that the claim was met with some type of non-judicial remedy mechanisms, which follows the UNGPs broad definition and includes all remedy efforts that occur outside of the 207

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Appendices

judiciary. This measure is aggregated over time in each panel to assess the long-term effect of victims’ access to non-judicial remedy. Trial (CHRD) – indicates that the legal action was brought before a judge or a jury. In the CHRD, it is quite common that victims or their advocates will initiate a legal process, but no actual trial occurs. For example, if the judge receives a complaint but decides to take no action. This variable, in contrast, indicates only those instances in which a trial was initiated. The CHRD includes the year in which the trial began. This measure is aggregated over time in each panel to assess the long-term effect of victims’ access to judicial remedy.

control variables Democratic Quality (Polity IV) – Polity2 is an annual measure of political regime authority on a 21-pont scale ranging from –10 (hereditary monarchy) to +10 (consolidated democracy). It captures “autocracies” (–10 to –6), “anocracies” (–5 to +5), and “democracies” (+6 to +10). Rule of Law (World Governance Indicators) – captures the extent to which citizens “have confidence in and abide by the rules of society,” such as perceptions of incidents of crime, the effectiveness and predictability of the judiciary, and the enforcement of contracts. The indicators, together, measure the “success of a society in developing an environment in which fair and predictable rules form the basis for economic and social interactions and the extent to which property rights are protected” (World Bank, World Governance Indicators). Party Ideology (World Bank’s Database of Political Institutions) – largest government party orientation (left, right, or center) for each country-year. GDP growth (WDI) – Gross domestic product growth (annual %), as reported in the World Bank’s World Development Indicators from World Bank national accounts data and OECD National Accounts Data files. GDP is the sum of gross value added by all resident producers in the economy plus any product taxes and minus any subsidies not included in the value of the products. GDP growth represents the percentage change, year over year. GDP per capita (WDI) – GDP per capita is an annual measure of gross domestic product divided by midyear population, logged, as reported in the World Bank’s World Development Indicators from World Bank national accounts data and OECD National Accounts Data files. Population (WDI) – number of individuals living in the country in a given year. This measure is logged in the models later.

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Years Since Transition – this variable includes the number of years since the country experienced its transition to democratic rule. Controlling for time is important as improved rights are often correlated with democratic consolidation, which happens over time. If time explains improvements or declines in rights protection, it would be reflected in this variable’s coefficient.

model specification The unit of analysis for Chapter 6, unlike Chapters 4 and 5, is a country-year. The data include 15 years (2000–2014) for 16 countries, or 240 country-years. Thus, I employ a time-series cross-section specification (“xtset” in Stata) with fixed effects, which is a standard way of removing unobserved heterogeneity between panels in the dataset. In addition, we know that government practices remain relatively stable over time. To account for this, I follow convention and include a lagged measure of the dependent variable in each model. Moreover, because the models include stock variables that accumulate over time, any effects could be the result of time passing. To account for this concern, I include a variable that measures the number of years since the democratic transition to control for how much time has passed since the transition to democracy.

robustness checks Additional models are included toward the end of this appendix that include two alternative dependent variables (listed below) and model specifications. Because the dependent variables (except the Latent Human Rights Score) are categorical, ordered variables, I also include ordered logit specifications here, as a robustness check. Political Terror Scale (PTS) – an additive scale that “defines political terror as violations of basic human rights to the physical integrity of the person by agents of the state.” The Physical Terror Scale is an index from 1 to 5 where a 1 indicates rare instances of political terror and 5 indicates such treatment has extended to the whole population. For the analysis here, however, I rescaled this variable so that a higher value is better in that it represents less violence. Latent Human Rights Scores (LPS) – this measure is used as a robustness check, as it constitutes a more sophisticated measurement of human rights protections. This measure incorporates the reality that there are changing

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210

standards of accountability and that existing measurements may suffer from bias due to information effects. The Latent Human Rights Score varies from – 3.8 to 5.1 globally, though this range is not as wide for the Latin American data. A higher score represents greater respect for human rights.

summary statistics

Variable

Minimum

Maximum

Mean

Standard Deviation

Number of Observations

Physical Integrity

0

8

4.67

1.82

272

Civic Empowerment Political Terror Scale Latent HR Score

6

14

11.04

1.65

272

1

5

3.39

0.94

272

2.73

0.14

1.1

272

28.9

272

Allegation, cumulative Trial, cumulative Civil trial, cumulative Crim trial, cumulative NJ Remedy, cumulative State-led NJ Remedy, cumulative Corp-led NJ Remedy, cumulative GDP per Capita

–2.56 0

128

21.18

0

38

4.98

7.18

256

0

29

3.625

5.52

256

0

13

1.36

2.55

256

0

33

5.875

7.94

256

0

15

2.11

3.63

256

0

10

1.92

2.14

256

7.15

9.61

8.48

0.67

272

Population (logged) Time Since Transition Democratic Quality Party Orientation

14.9

19.15

16.45

1.19

272

2

69

24.75

1

10

8.14

1.29

272

0

3

1.82

1.07

270

Rule of Law

–1.25

–0.37

0.66

272

1.43

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13.5

272

Appendices

211

models

table 1. The effect of contestation on respect for human rights and empowerment (Model 1)

(Model 2)

Human Rights

Civic Empowerment

**

Allegation (cumulative)

0.009

0.001

(0.004)

(0.004)

2.208*

GDP per Capita (logged) Population Years Since Transition

(1.093)

*

5.657

−6.881*

(2.561)

(3.045)

−0.207***

0.084

(0.055) Democratic Quality

Rule of Law

(0.062) −0.182

0.181

Party Orientation

−0.299

(0.909)

(0.135)

(0.160)

0.188*

−0.300**

(0.081)

(0.098)

−0.436

−0.355

(0.435)

(0.530)

***

Human Rights (lagged)

0.232

(0.063) 0.504***

Civic Empowerment (lagged)

(0.056) Observations Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01,

254 ***

p < 0.001

https://doi.org/10.1017/9781009293280.013 Published online by Cambridge University Press

254

Trial (cumulative)

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

(Model 6)

Human Rights

Civic Empowerment

Human Rights

Civic Empowerment

Human Rights

Civic Empowerment

0.032*

0.029+

(0.013)

(0.016) 0.031+

0.035+

(0.016)

(0.020) 0.117**

0.068

(0.041)

(0.050)

Civil Trial (cumulative)

212

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table 2. The effect of judicial remedy on respect for human rights and empowerment

Criminal Trial (cumulative) GDP per Capita (logged) Population Years Since Transition

1.385

1.404

−0.648

1.617

−0.400

(0.898)

(1.076)

(0.905)

(1.079)

(0.886)

(1.070)

5.099*

−6.381*

4.847+

−6.479*

5.359*

−6.533*

(2.539)

(3.015)

(2.545)

(3.013)

(2.534)

(3.026)

−0.141**

0.086

−0.137**

0.089

−0.154**

0.081

(0.055)

(0.048)

(0.055)

(0.048)

(0.048) Democratic Quality

−0.623

+

0.130

−0.190

0.127

(0.134)

(0.158)

(0.135)

−0.192 (0.158)

0.144 (0.134)

(0.055) −0.184 (0.159)

Rule of Law Human Rights (lagged) 213

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Party Orientation

0.147+

−0.284**

0.134+

0.174*

−0.278**

(0.078)

(0.095)

(0.078)

(0.094)

(0.079)

(0.096)

−0.278

−0.295

−0.289

−0.296

−0.295

−0.324

(0.435)

(0.525)

(0.437)

(0.525)

(0.433)

(0.526)

0.264***

0.269***

(0.062)

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

254

(0.062) 0.504***

(0.055) 254

0.248***

(0.062) 0.503***

Civic Empowerment (lagged) Observations

−0.293**

0.502***

(0.055) 254

254

(0.056) 254

254

Appendices

214

table 3. The effect of non-judicial remedy on respect for human rights and empowerment

State-led Non-Judicial Remedy

(Model 3)

(Model 4)

(Model 5)

(Model 6)

Human Rights

Civic Empowerment

Human Rights

Civic Empowerment

0.062*

−0.008

(0.025)

(0.030)

Company-led NonJudicial Remedy

−0.085

0.048 (0.048)

GDP per Capita (logged)

+

1.720

(0.890) Population Years Since Transition Democratic Quality

5.760

*

Rule of Law Human Rights (lagged)

1.767

(0.030)

(0.903)

(1.073)

+

4.792

−7.558*

−0.331

(2.582)

(1.073)

(2.576)

(3.036)

−7.065*

−0.159**

0.129*

(0.052)

(3.059)

(0.053)

0.138

0.094

0.132

(0.059)

(0.136)

(0.159)

0.139+

−0.331***

0.187*

−0.183

(0.061) −0.181

(0.082)

(0.159)

(0.080)

(0.096)

−0.356

−0.311**

−0.384

−0.254

(0.098)

(0.442)

0.237

***

−0.344

Civic Empowerment (lagged)

0.270

(0.062) 0.506

***

0.508***

(0.056) 254

(0.529)

***

(0.063)

Observations

−0.498

−0.187***

(0.134) Party Orientation

(0.057)

−0.008

+

254

(0.055) 254

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

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254

Allegation (cumulative) GDP per Capita (logged)

215

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table 4. Confrontation (robustness checks) (Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

0.002

−0.005

−0.001

−0.000

−0.001

(0.011)

(0.005)

(0.012)

(0.002)

(0.000)

*

*

+

−0.076

1.245

0.753

2.653

(0.509)

(0.479)

(1.084)

(0.498)

(0.132)

Population

−1.619**

−0.214

−2.348***

−0.050

−0.082

(0.587)

(0.245)

(0.534)

Years Since Transition

−0.055

−0.018

−0.027

(0.042)

(0.011)

(0.018)

(0.029)

(0.007)

0.244

−0.011

0.212

−0.033

−0.058**

Democratic Quality

(0.262) Party Orientation

0.146 (0.192)

Rule of Law Human Rights (lagged)

0.966

(1.386) −0.014

(0.359) 0.008

(0.166)

(0.215)

(0.074)

(0.019)

−0.146

−0.012

−0.071

−0.014

(0.256)

(0.251)

(0.045)

(0.012)

−0.085

0.381

0.622

0.031

0.018

(0.507)

(0.426)

(0.649)

(0.243)

(0.063)

1.052*** (0.287) (continued)

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

1.596**

0.236***

1.217***

Civic Empowerment (lagged)

(0.223) PTS (lagged)

(0.565)

(0.065) 0.901***

HR Score (lagged) 216

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table 4. (continued)

(0.029) Observations

254

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

254

254

254

254

Trial (cumulative) GDP per Capita (logged) 217

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table 5. Trials (robustness checks)

Population Years Since Transition

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

0.070***

0.018*

0.004*

(0.007)

(0.002)

0.805

−0.076

(0.489)

(0.129)

0.039

0.040*

(0.039)

(0.018)

*

1.260

0.543

2.484

(0.331)

(0.747)

−1.808

−0.414

+

−2.597

(0.453)

(0.244)

(0.410)

−0.062*

−0.025+

−0.035*

(0.014)

(0.017)

(0.025)

(0.007)

0.201

−0.035

−0.057**

***

0.230 (0.258)

Party Orientation Rule of Law

***

(0.567)

(0.031) Democratic Quality

(0.017)

−0.013

0.335

0.046

(1.362)

(0.356)

−0.019

0.004

(0.250)

(0.072)

(0.019)

0.167

−0.103

0.033

−0.056

−0.008

(0.194)

(0.261)

(0.246)

(0.043)

(0.011)

−0.128 (0.471)

(0.167)

***

0.468

0.596

0.060

0.019

(0.423)

(0.531)

(0.239)

(0.062) (continued)

Human Rights (lagged)

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

1.605**

0.236***

1.025*** (0.265) 1.228***

Civic Empowerment (lagged)

(0.240) PTS (lagged) 218

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table 5. (continued)

(0.505)

(0.064) 0.888***

HR Score (lagged)

(0.029) Observations

254

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

254

254

254

254

Civil Trial (cumulative) GDP per Capita (logged) 219

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table 6. Civil trials (robustness checks)

Population Years Since Transition Democratic Quality

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

0.106***

0.022*

0.005*

(0.009)

(0.002)

0.779

−0.084

(0.491)

(0.130)

0.048

0.047+

(0.045)

(0.027)

1.199

*

0.533

2.284

(0.329)

(0.738)

−1.761

−0.409

−2.577

(0.385)

(0.230)

(0.366)

−0.056*

−0.022

−0.029+

(0.026)

(0.013)

(0.015)

(0.025)

(0.007)

0.225

−0.031

0.193

−0.036

−0.057**

(0.163)

(0.240)

(0.072)

(0.019)

0.035

−0.062

−0.009

(0.247)

(0.043)

(0.011)

***

0.156 (0.192)

Rule of Law

**

(0.521)

(0.247) Party Orientation

(0.024)

−0.108 (0.433)

+

−0.123 (0.255)

***

0.278

0.036

(1.360)

(0.355)

−0.017

0.005

0.480

0.626

0.058

0.019

(0.409)

(0.463)

(0.239)

(0.062) (continued)

Human Rights (lagged)

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

1.673**

0.242***

1.046*** (0.264) 1.228***

Civic Empowerment (lagged)

(0.236) PTS (lagged) 220

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table 6. (continued)

(0.523)

(0.064) 0.889***

HR Score (lagged)

(0.029) Observations

254

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

254

254

254

254

Criminal Trial (cumulative) GDP per Capita (logged) 221

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table 7. Criminal trials (robustness checks)

Population Years Since Transition Democratic Quality Party Orientation Rule of Law

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

0.087

0.105

0.062

0.037

0.006

(0.189)

(0.070)

(0.091)

(0.023)

(0.006)

1.382+

0.628+

(0.763)

(0.365)

−1.759

−0.340

−2.426

(0.640)

(0.249)

(0.578)

−0.066

−0.031*

−0.033+

(0.051)

(0.015)

(0.019)

(0.025)

(0.007)

0.251

0.021

0.215

−0.032

−0.056**

(0.267)

(0.184)

(0.231)

0.174

−0.084

0.007

(0.214)

(0.273)

(0.242)

**

−0.157 (0.591)

2.684** (1.036) ***

0.953+

−0.051

(0.488)

(0.129)

0.226

0.010

(1.373)

(0.358)

−0.021

0.004

(0.073)

(0.019)

−0.055

−0.009

(0.044)

(0.011)

0.436

0.599

0.044

0.015

(0.449)

(0.643)

(0.241)

(0.063) (continued)

Human Rights (lagged)

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

1.568**

0.226***

1.008** (0.311) 1.228***

Civic Empowerment (lagged)

(0.239) PTS (lagged) 222

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table 7. (continued)

(0.582)

(0.065) 0.894***

HR Score (lagged)

(0.029) Observations

254

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

254

254

254

254

State-led Non-Judicial Remedy GDP per Capita (logged) 223

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table 8. State-led non-judicial remedy (robustness checks)

Population Years Since Transition Democratic Quality Party Orientation Rule of Law

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

0.024

−0.049

−0.005

(0.071)

(0.036)

(0.065)

(0.014)

(0.004)

*

0.002

0.000

0.799

−2.606

−0.985

−0.051

(0.514)

(0.505)

(1.074)

(0.491)

(0.130)

−1.647

−0.229

2.352

0.048

−0.029

(0.541)

(0.232)

(0.526)

(1.393)

(0.362)

−0.057

−0.018+

0.028+

0.015

0.005

(0.039)

(0.010)

(0.016)

(0.027)

(0.007)

0.224

0.019

−0.206

0.031

−0.056**

(0.292)

(0.162)

(0.217)

(0.073)

0.151

−0.157

0.009

0.071

1.219

*

**

***

*

(0.019) −0.011

(0.193)

(0.257)

(0.252)

(0.045)

−0.038

0.318

−0.642

−0.028

(0.012) 0.013

(0.557)

(0.416)

(0.665)

(0.242)

(0.063) (continued)

Human Rights (lagged)

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

1.596**

0.236***

1.041*** (0.287) 1.215***

Civic Empowerment (lagged)

(0.222) PTS (lagged) 224

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table 8. (continued)

(0.567)

(0.065) 0.899***

HR Score (lagged)

(0.029) Observations

254

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

254

254

254

254

Company-led Non-Judicial Remedy GDP per Capita (logged) 225

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table 9. Company-led non-judicial remedy (robustness checks)

Population Years Since Transition Democratic Quality

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

−0.008

−0.109+

−0.011

(0.136)

(0.065)

(0.128)

(0.026)

(0.007)

−2.620

−0.978

−0.054

(0.493)

(0.130)

*

1.258

0.678

(0.523)

(0.436)

−1.553

−0.174

(0.481)

(0.259)

−0.051

−0.014

(0.035) 0.258

**

(0.265) Party Orientation

0.147 (0.194)

Rule of Law

−0.127 (0.472)

−0.002

0.003

*

(1.057)

*

2.359

0.034

−0.044

(0.522)

(1.387)

(0.360)

0.029

0.015

0.005

(0.011)

(0.019)

(0.028)

(0.007)

0.036

−0.204

0.032

−0.056**

(0.172)

(0.222)

(0.073)

0.012

0.070

−0.012 (0.011)

−0.151

***

(0.019)

(0.250)

(0.250)

(0.044)

0.388

−0.639

−0.030

0.015

(0.400)

(0.638)

(0.244)

(0.063) (continued)

Human Rights (lagged)

(Model 1)

(Model 2)

(Model 3)

(Model 4)

(Model 5)

Human Rights (Logit)

Civic Empowerment (Logit)

PTS (Logit)

PTS (Regression)

HR Score (Regression)

1.595**

0.236***

1.069*** (0.284) 1.198***

Civic Empowerment (lagged)

(0.209) PTS (lagged)

(0.561) 226

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table 9. (continued)

(0.065) 0.899***

HR Score (lagged)

(0.029) Observations

254

Standard errors in parentheses + p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001

254

254

254

254

References

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https://doi.org/10.1017/9781009293280.014 Published online by Cambridge University Press

Index

Abaca, Mariano, 56–58 absolutism, pragmatism and, 32 abuse categories, in CHRD, 55–58 access to remedy. See also judicial remedy; non-judicial remedies agonistic view of, 22–24, 37–43 in CHRD, 58–66 civil society and, 41, 89 comparison of pathways for, 24 control variables in, 90 corporate characteristics and, 6, 9n.12, 24, 40–41, 83–84 dependent variables in, 87–88 elevating voices and, 24, 41, 84–87 independent variables in, 88–89 institutional strength and, 38–40, 81–82 judicial remedy pathways, 58–65, 90–109 multiple pathways for victims, 37–38 non-judicial remedy pathways, 114–116, 125–127 quality of remedy and, 130n.124 varieties of remedy approach and, 77–79, 172–174 accountability in CHRD, 65–66 contestation and, 147–150 firm size and, 106–107 institutional strength and, 81–82 judicial remedy in business and human rights and, 72–77 non-judicial remedies and, 118, 128–130 Achuar community, 132–133 Act on Corporate Due Diligence Obligations in Supply Chains (Germany), 10–11 Adecco Argentina and Manpower, 2–3

administrative remedies, corporate human rights violations and, 21–22 AFD International, 106–107 agonism access to remedy issues and, 22–24 civil society and, 86–87, 144–145 claim-making and contestation and, 66 contestation and, 22, 35–37, 144–152, 161–165 corporate characteristics and power dynamics and, 40–41 corporate human rights violations and, 5–6 democratic practices and, 143–145, 154, 156–163 governance and, 145–152 institution-building and, 42–44 non-judicial remedies and, 113–114, 141–142, 151–152, 162 power asymmetry and, 41 social movements and, 146 theories and principles of, 20–21 varieties of remedy approach and, 17–20, 170–172 Agrícola Paredes, 56–57 Aguinda v. Texaco, Inc., 75–76 Alien Tort Statute (ATS), 43–44, 149 judicial remedy in business and human rights and, 72–77 Amazon deforestation, 136 state-corporate ties and, 120–121 Amnesty International, 41 amparo concept, judicial remedy and, 87–88 Anderson de Souza, Alexandre, 107 Annan, Kofi, 14–17 apartheid contestation and redress for, 147

259

https://doi.org/10.1017/9781009293280.015 Published online by Cambridge University Press

260

Index

apartheid (cont.) international pressure for abolition of, 12–13, 43–44 Aportes San Isidro S. A., 69–70 Arédez, Olga, 97–98 Argentina access to judicial remedy in, 77–79 corporate social responsibility requirements in, 148–149 forced labor violations in, remedies for, 26 NGOs in, 85–86 Argentina Law 2594, 11n.16 Asian Miracles research, 29–30 Assembly of the Guaraní People of Itika Guasu, APGIG, 135–136 Asset4 database, 53–54 Australia corporate human rights legislation in, 11n.16 corporate social responsibility requirements in, 148–149 Avant, D., 44–45 Baggi, Blairo, 120–121 Baggi, Erai, 120–121 Bámaca Pérez, Byron Lionel, 56–58 Barrett Resources, 121–124 Bartley, T., 27, 31, 124 BASF corporation, 102–104 Baterias de El Salvador (BAES), 64–65 Becerra Palomino, Edmundo, 139 Belgium corporate human rights legislation in, 11n.16 corporate social responsibility requirements in, 148–149 Belo Monte dam project, 100 Berger, S., 29–30 Bernal-Bermúdez, Laura, 47–48 Bertin company, 136 Bhopal disaster, 11–12, 77 BHP Billiton, 128–130 bias issues, in CHRD data sources, 53–54 Bill of Human Rights, 9 Blackfire Exploration, 56–58 Bolsonari, Jair, 150–151 Bom Futuro, 120–121 Brazil declining support for democracy in, 150–151 firm size and varieties of remedy in, 102–104 Indigenous rights litigation in, 100 Breaking the Silence, 56–58n.48

Brewer-Carias, A. R., 87–88 Buenaventura company, 63–64, 138–139 Bunge corporation, 120–121 Burgoon, B., 123 business. See corporations legal challenges to judicial remedy by, 72–77 Business and Human Rights Resource Center (BHRRC), 51–54 capitalism human rights and, 2–3 varieties of remedy and, 39–44 Cargill corporation, 120–121 Carrefour, 134–135 Cencosud (Chile), 99–100 Central Hidroeléctrica de Caldas-Chec (Colombia), 163–164 Centro de Estudios Legales y Sociales (CELS), 85–86 Cerro Matoso mine (Colombia), 133 CETESB (Companhia Ambiental do Estado de São Paulo), 102–104 Chen, José Pérez, 111n.13 Chevron, 75–76 child labor in CHRD, 55–58 non-judicial remedies for violations involving, 134–135 Chile neoliberalism in, 151 non-judicial remedies for rights violations in, 115, 128–130 China, forced labor violations by, 26–27 Cingranelli-Richards Human Rights (CIRI) database, 153–154 Cinto, Pedro Miguel, 56–58 C.I. Tequendama S.A., 69–70 civil society access to remedy and, 24, 41, 84–87 challenges to corporate behavior by, 10 contestation and role of, 164–165 contestation effect on, 156–161 corporate engagement with, 144–145 cumulative effect of engagement in, 159–161 democratization of court systems and, 86 governance outcomes and, 21 increased activism of, 85 non-judicial remedy pathways and, 121–124 varieties of remedy approach and role of, 20, 104–107

https://doi.org/10.1017/9781009293280.015 Published online by Cambridge University Press

Index civil trials access to judicial remedy in, 77–79 cumulative effect of, 154, 159–161 democratic practices and, 154 dependent variables in, 87–88 firm size and, 106–107 judicial remedies and, 58–65 claim-making, empowerment of, 147, 156–161 Clapham, A., 73–75 Coca-Cola FEMSA, S.A.B. de C.V., 98–99 Coimbra de Moura, Emanuel, 25–26 Colombia contestation and, 163–164 NGOs in, 85–86 Colombian Institute of Rural Development (Instituto Colombiano de Desarrollo Rural, INCODER), 68–71 Colombia Solidarity Campaign, 156–158 Committee for the Defense of Health, Ethics, and Human Rights (Comité para la Defensa de la Salud, la Etica y los Derechos Humanos, CODESEDH), 97–98 community-level contestation empowerment through, 156–161 non-judicial remedies and, 124 Compania Antamina, 128–130 Companies Act (India), 148–149 compliance, institutional strength and, 117–118 Compliance Advisor Ombudsman (World Bank), 63–64 Conectas (Brazil), 85–86 confrontation. See contestation Consortium Labrador, 69–70 constitutional claims (tutelas), land rights violations and, 69–70 contestation access to remedy issues and, 22–24, 37–43, 66 agonistic scholarship on, 22, 35–37, 145–152, 161–163 between communities and corporations, 124 cumulative effect of, 154, 159–161 democratic practices and, 143–165 economic development and, 164–165 empowerment through, 147 focus on corporate human rights violations and, 8 governance and, 8–9, 23–24, 32–35, 145–152, 167–170

261

institutional strength and, 116–118 institution building through, 42–44 judicial remedy mechanisms and, 68–109, 147–150 non-judicial remedy mechanisms and, 110–142, 150–152 pathways to remedy and, 39–44 pragmatism and, 35 varieties of remedy approach and, 18–19, 39–44, 139–142, 162 Contingency Fund for Environmental Remediation (Peru), 132–133 control variables in access to remedy democratic practices and, 155 judicial remedies, 90 non-judicial remedies, 127–128 corporate characteristics. See also firm size; profitable firms access to remedy and, 24, 40–41 contestation and governance and, 166–170 firm size, 89, 106–107 foreign firms, 93–94 independent variables in, 89 judicial remedy pathways and, 93–104 non-judicial remedy pathways and, 118–121, 131–136, 140, 154, 163–164 profitability, 95–99 remedies for human rights and, 6, 9n.12, 83–84 corporate incentives, non-judicial remedies and role of, 123 corporate social responsibility (CSR) non-judicial remedies and, 116–118 states’ role in, 148–149 corporate veil, judicial remedy and piercing of, 73–74 corporations. See also business accountability of, 72–77 assets and revenue of, 9 civil society challenges to behavior by, 10 costs of human rights violations for, 11–12 current human rights initiatives and, 15–17 engagement with civil society by, 144–145 human rights agenda and, 2–3, 9–12 impunity of, 25–27 lobbying activities of, 9n.12 non-judicial remedy mechanisms and, 115–116, 154, 163–164 political economy and management scholarship on, 21

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262

Index

corporations. (cont.) resistance to human rights mechanisms by, 13 state policy and strength of, 27–28 varieties of remedy approach and, 20 voluntary human rights protections for, 12–14 Corporations and Human Rights Benchmark, 53–54 Corporations and Human Rights Database (CHRD), 6–7 access to remedy data, 27, 65–66 accountability issues and, 65–66 civil society activism data in, 85–87 contestation data in, 143–145 data sources for, 53–54 Latin American focus in, 49–50 methodology, 51–52 non-judicial remedies in, 114–116 overview of, 21, 47–48 as research tool, 48–49 varieties of remedies in, 58–65 violations and remedy mechanisms in, 55–66 Cortés, Alma, 128–130 court systems, democratization of, 86 criminal trials access to judicial remedy in, 77–79 cumulative effect of, 154, 159–161 democratic practices and, 154 dependent variables in, 87–88 firm size and, 106–107 judicial remedies and, 58–65 Dancy, G., 153–154 Darwin, Charles, 32–33 Dashwood, H. S., 118–121 Database of Political Institutions, 155 Dawkins, Cedric, 41 death and disappearance, in CHRD, 56–58 Declaration of Human Rights, 30–31 Dedeurwaerderem, T., 33–34 Dejusticia NGO (Colombia), 85–86 Delgadillo, César Daniel, 101–102 deliberative democracy, agonism and, 35–37 democratic practices agonistic perspective on, 35–37, 145–146, 162–163 CHRD focus on, 49–50 contestation and, 23–24, 39–44, 143–165 control variables in access to remedy, 155 decline in Latin American support for, 150–152

dependent variables and, 153–154 independent variables, 154 institutional strength and, 81–82 pragmatism and, 151–152, 161–163 Democratic Quality measure (Polity IV project), 90, 127–128, 155 Democratic Republic of Congo, mineral resources in, 10–11 Denmark, corporate social responsibility requirements in, 148–149 dependent variables democratic practices and, 153–154 non-judicial remedy pathways, 125–127 deterrence costs of, 159–161 institutional strength and, 21, 24, 81–82 legal structure and, 19 trials’ impact on, 156–158 Deuitelhoff, N., 118–121 Deva, Surya, 27–28 developmental abuses, in CHRD, 55–58 development theory, governance gap assumptions and, 29–30 Dewey, John, 32, 35, 113–114 diamonds, illicit traffic in, 14 DiMaggio, P. J., 147–150 Dodd Frank Act (2014) (United States), 10–11 Doh, J., 123–124 Draft Norms (“Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights”), 13 DuPont Pioneer, tax audit of, 62–63 Ecoltec company, 133–136 Economic Commission for Latin America and the Caribbean (ECLAC), 151 economic crisis of 2008, governance gap scholarship and, 29–30 economic growth contestation and, 164–165 human rights and, 161–163 in Latin America, 50, 151 elevating voices access to remedy and, 24, 41, 84–87 challenges to corporate behavior by, 10 contestation and governance and, 166–170 governance outcomes and, 21 judicial remedy pathways and, 89 non-judicial remedy pathways and, 114, 121–124, 136–139, 141

https://doi.org/10.1017/9781009293280.015 Published online by Cambridge University Press

Index remedies for human rights violations and, 6 varieties of remedy approach and role of, 20, 104–107 employment discrimination cases, 99–100 Empowerment Rights Index (CIRI), 153–154 endogeneity, adaptation and, 32–33 Enel Green Power, 110–114, 141–142, 162 Energisa, S.A., 56–58 environmental abuses in CHRD, 55–58 firm size and varieties of remedy in, 101–104 Indigenous rights and, 132–133 non-judicial remedies for, 121–124, 128–130, 133–136 state-corporate ties and, 120–121 Environmental Defender Law Center (EDLC), 107 Escobar, Jesus Emilio, 68–71 European Commission, supply chain transparency and human rights legislation, 10–11 Evans, P., 29–30 evolutionary theory, pragmatism and, 32–33 Excellon Resources, 104–107 experimentation, agonist emphasis on, 43–44 Extractive Industry Transparency Initiative, 10, 14 Federal Environmental Protection Agency (Profepa) (Mexico), 157–158 Federation of Agricultural Workers (Brazil), 62–63 Federation of Native Communities of the Corrientes River (Federación de Comunidades Nativas del Río Corrientes, FENACO), 132–133 Felstiner, Abel & Sarat, 145–146 Ferreyra, Ezequiel, 134–135 firm size. See also profitable firms in CHRD, 48–49 non-judicial remedies and, 118–121, 131–136 varieties of remedy and, 89, 102–104 fishing rights violations, 107 Flores, Carlos Roberto, 56–58 Fondo Ganadero de Cordoba S.A., 63 forced labor conditions corporate impunity concerning, 26–27 non-judicial remedies for, 26 foreign corporations characteristics and access to remedy in, 93–94

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liability of, 76–77 varieties of remedy and, 89 Foreign Corrupt Practices Act (US), 12–13 Forés and Camisón, 119–120 forum non conveniens principle, judicial remedy in business and human rights and, 72–77 France corporate duty of vigilance laws in, 10–11 corporate social responsibility requirements in, 148–149 corporative organizations model in, 29–30 Fransen, L., 123 FREDICON (Front for Development and Integration of the North Cone), 144–145 free, prior, and informed consent (FPIC), 110n.112 Freedom House rule of law measure, 88–89 non-judicial remedies and, 125–127 Freeport McMoRan, 144–145 Friends of the Earth Nigeria, 11–12n.17 Frontino Gold Mines, 133 Fundación Chasquis (NGO), 85 Gas del Caribe, 121–124 GDP per capita, democratic practices and, 155 General Directorate of Health (Dirección General de Salud Ambiental, DIGESA) (Peru), 132–133 General Motors (GM), 9 Germany, corporate human rights violations in, 10–11 Global Compact, 14 global governance initiatives in human rights, limits of, 15–17 Global Justice, 9 global regulatory regime, judicial remedy and, 72–77 Goldcorp, 56–58 Gómez Sada, Don Napoleón, 106 González-Ocantos, E.A., 86 governance agonistic perspective on, 35–37, 145–152 contestation and, 8–9, 23–24, 32–35, 37–43, 145–152, 161–163, 166–170 democratic practices and, 143–165 institutions of, 6 non-judicial remedies and, 42 varieties of remedy approach and, 18–19 World Governance Indicators, 155

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governance gap narrative access to judicial remedy and, 77–79 corporate human rights violations and, 4 corporate social responsibility (CSR) and, 116–118 critique of, 25–27 scholarship and theory concerning, 4–5, 29–32 varieties of remedy approach and, 171–172 Grabel, I., 29–30 Gran Colombia Gold, 133 Great Alliance for Omoa, 121–124 Greenpeace, 41, 120–121 Grupo Acón, 134–135 Guáqueta, Alexandra, 47–48 Guaraní people, 135–136 Guidelines for Multinational Enterprises (OECD), 12–13 Guillermin, M., 33–34 Hacienda de Las Pavas, 68–71 Hall, P.A., 6, 167–170 Hanga Roa Hotel dispute, 128–130 hard law on human rights challenges of, 12–14 current developments in, 15–17 judicial remedy and, 72–77 health violations, in CHRD, 55–58 Hidrosogamosodam project, 107 Hilbink, L., 159–161 Hitorangi Clan, land dispute involving, 128–130 Honduras, non-judicial remedies for environmental abuses in, 121–124 Honig, B., 17–20, 23–24, 36, 156–161, 164–165 human rights business and, 9–12 corporate context for, 2–3 international codification of, 9 legal challenges to judicial remedy by, 72–77 Human Rights Commission (Comisión de Derechos Humanos del Distrito Federal) (Mexico), 98–99 human trafficking in CHRD, 55–58 prosecution of, 10–11 impunity of corporations governance gap narrative and, 25–27 judicial remedies and, 58–65

independent variables democratic practices, 154 non-judicial remedy pathways, 125–127 India, corporate social responsibility requirements in, 148–149 Indigenous rights claim-making and empowerment of, 156–161 environmental abuses and, 132–133, 135–136 INGOs support for, 121–124 non-judicial remedies in violations of, 110–114, 128–130 varieties of remedy approach and, 100 Inditex (Industria de Diseño Textil, S.A.), 2–3 individual responsibility, corporate liability and, 73–75 innovation, pragmatist approach to, 34 institutional isomorphism, 147–150 institutional strength access to remedies and, 6, 24, 38–40, 81–82 agonistic perspective on, 36, 42–44 contestation and governance and, 166–170 deterrence and, 21 independent variables in, 88–89 judicial remedy pathways and, 92–93 labor disputes and, 133 non-judicial remedy pathways and, 114, 116–118, 128–131, 139–140 state policy linked to, 27–28 varieties of remedy approach and, 19 Interamerican Association for Environmental Defense (AIDA), 37–38 Inter-American Commission for Human Rights (IACHR), 121–124, 130n.127 internal legitimacy standards, for INGOs, 87 International Chamber of Commerce, 13 International Finance Corporation (IFC), 63–64 international human rights law creation of, 30–31 judicial remedy in, 71–77 International Labor Organization (ILO), 12–13 international non-governmental organizations (INGOs) access to remedy and, 41, 167–170 corporate human rights violations and, 4 increased activism of, 85 limitations of, 106–107 naming and shaming by, 86–87 non-judicial remedies and, 121–124, 136–139 varieties of remedy approach and role of, 172–174 International Organization of Employers, 13

https://doi.org/10.1017/9781009293280.015 Published online by Cambridge University Press

Index James, William, 32 Jesner v. Arab Bank, 43–44, 76–77 judicial remedy. See also access to remedy in CHRD, 58–65 contestation and, 68–109, 147–150 control variables, 90 corporate human rights violations and, 21 legal challenges to, 72–77 mechanisms of, 71–77 pathways to, 90–109 variations in access to, 77–79 Kadlec, A., 151–152 Keohane, R.O., 23, 65–66, 164–165 Khulumani Support Group, 43–44, 147 Kimberley Certification Scheme, 14 Kinder, Lydenberg, and Domini (KLD) data aggregation, 53–54 King, B. G., 85, 118–121, 146 King, Martin Luther Jr., 35–36n.35 Kiobel, Esther, 11–12 Kiobel v. Royal Dutch Petroleum, 43–44, 76–77 *Knight, J., 35 knock-on effects of litigation, 147–150 labor disputes in CHRD, 55–58 examples of, 2–3 non-judicial remedies and, 115, 133 Labra, Consuelo, 130 Landless Workers’ Movement (Movimento Sem Terra, MST), 25–26 land rights violations firm size and, 106–107 foreign corporations and, 93–94 judicial remedy mechanisms and, 68–71 non-judicial remedies for, 63, 128–130 La Platosa mine, 104–107 Latin America amparo concept in, 87–88 business associations in, 29–30 CHRD focus on, 49–50 civil law in, 77–79 corporate human rights violations in, 6–7 declining support for democracy in, 150–152 democratic transition and rule of law in, 81–82 economic reforms in, 30 state-corporate ties in, 120–121 transitional justice and human rights in, 149–150

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La Via Campesina, 25–26 Law 30321 (Peru), 132–133 Ledesma, 97–98 Legal Clinic on Law and Territory from Universidad Javeriana (Clínica Jurídica sobre Derecho y Territorio), 69–70 legal liability judicial remedies, 73–74 non-judicial remedies and, 118 spillover effects of, 149 legislative protection for human rights challenges of hard law and, 12–14 corporate human rights legislation, 10–11 current developments in, 15–17 non-judicial remedies and, 42 Lider supermarket chain, 115 Lim, A., 42 Linz, J., 81–82 Llanos, Isidro, 138–139 local actors corporate strength and role of, 27–28 international law on human rights and role of, 15–17 non-judicial remedies and role of, 121–124 varieties of remedy approach and role of, 173–174 local knowledge, varieties of remedy and, 41 Lukas, K., 29 Macklin, A., 29 management theory non-judicial remedy pathways and, 118–121 pragmatism and, 32–33 Marlin Mine, 56–58 Mayan Ixhil community, 110–114 McDonnell, M. H., 146 mediation, corporate human rights violations and, 21–22 Medoro Resources, 133 Mendoza, Robert, 98–99 Mexico environmental abuses in, 133–136 forced labor violations in, 26–27 Meznar, M.B., 120–121 Minera Afrodita, 128–130 Minera Caudalosa, 63–65 Minera Yanacocha S.R.L., 63–64, 138–139 Ministry of Agriculture, Ministry of Public Health, and Secretariat of the Environment (SEAM) (Paraguay), 101–102 Mitsubishi Corporation, 128–130

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Modern Slavery Act 2015 (United Kingdom), 10–11 Monsanto, 2–3 Montana Exploradora, 56–58 Moore, Robert, 104–107 Moreiro, Pedro Ivo, 25–26 Mota de Oliveira, Valmir (“Keno”), 25–26 Mouffe, Chantal, 17–20, 22, 35–38, 170–172 multinational corporations human rights violations and, 9 varieties of remedy and, 102–104 voluntary human rights mechanisms and hard law challenges involving, 12–13 multi-stakeholder initiatives (MSIs) non-judicial remedies and, 63–64, 123 proliferation of, 14 Muriel Mining Corporation, 157–158 naming and shaming, INGOs’ engagement in, 86–87 National Agrarian Institute (Honduras), 93–94 National and Borders Bill (UK), 10n.14 National Commission for Human Rights (CNDH, Comisión Nacional de Derechos Humanos, Mexico), 26–27 National Contact Point (Netherlands), 26 National Council for the Prevention of Discrimination (Mexico), 98–99 Natividad y Anexas mining company (Mexico), 157–158 Nel Zuñiga-Caballero, Antonio, 2–3 neoliberal economics corporate strength linked to, 27–28, 30 decline in Latin America of, 151 in Latin America, 50 Nestlé USA vs. Doe, 43–44, 76–77 Netherlands, child labor laws in, 10–11 Newmont Mining Corp., 63–64, 138–139 New York Declaration on Forests, 136 NF Segurança, 25–26 Nidera company, 26 Nigeria, corporate human rights violations in, 11–12 Nigh, D., 120–121 Nijman, J. E., 73–75 non-governmental organizations (NGOs) access to remedy and, 41, 167–170 corporate human rights violations and, 4 increased activism of, 85–87 non-judicial remedy pathways and, 121–124, 136–139

public interest law movement and, 86 varieties of remedy approach and role of, 20, 104–107, 172–174 non-judicial remedies agonism and, 151–152 in CHRD, 58–65 contestation and, 110–142, 150–152 control variables in access to, 127–128 corporate characteristics and, 21–22, 118–121, 131–136, 140 cumulative effect of, 160–161 dependent variables in pathways to, 125–127 elevating voices and, 114, 121–124, 136–139, 141 governance gap narrative and, 26 independent variables in, 154 Indigenous rights and, 110–114 institutional strength and access to, 116–118, 128–131, 139–140 for land expropriations, 63 non-state mechanisms for, 63–64 pathways to, 116–124, 128–139 pragmatism and, 32–33, 151–152 processes and access to, 114–116 state institutions and, 64–65 tax audits, 62–63 non-state actors non-judicial remedies and, 63–64 state policy and capacity and, 29 normativity agonistic perspective on, 36–37 judicial remedy and, 72–77 non-judicial remedies and, 42 pragmatism and, 33–34 Norte Energia S. A., 100 Norval, A., 43–44, 147 Norwegian Transparency Act (2022), 10–11 Nuestra Huella S. A., 134–135 Observatorio Ciudadano, 130 Occidental Petroleum Company, 132–133 Odebrecht construction company, 150–151 O’Donnell, G.A., 81–82 OECD Watch, 16–17, 26 Orbis dataset, 89, 126–127 organism-environment transactions theory, pragmatism and, 32–33 Organismo Supervisor de la Inversión en Energía y Mineria, OSINERGMIN (Peru), 128–130 Organization for Economic Co-operation and Development (OECD), 12–13

https://doi.org/10.1017/9781009293280.015 Published online by Cambridge University Press

Index Organization of Antioquia Indigenous (Organización Indígena de Antioquia), 157–158 organized hypocrisy, corporate characteristics of, 40–41 organs of society, corporations as, 13 Oxfam, 151 Pabón Pabón, Miguel Ángel, 107 Pallas, C.L., 87 Palo Viejo dam construction, 110–114 Paraguay, land rights violations in, 101–102 Parenco, 121–124 party ideology, democratic practices variables, 155 Pavayacu community, 132–133 Payne, L.A., 75 Payne, Leigh, 47–48 Peasant Association of Buenos Aires (Asociación de Campesinos de Buenos Aires, ASOCAB), 68–71 Pereira, Gabriel, 47–48 Pero, environmental abuses in, 138–139 Peru, contestation and environmental abuse in, 144–145 Peruzzotti, E., 86 Petrobras, 107, 150–151 Petroleum Observatory of the Northern Amazon (Observatorio Petrolero de la Amazonía Norte, PUINAMUDT), 132–133 Pfeffer, J., 120–121 physical integrity abuse, in CHRD, 55–58 Physical Integrity Score (CIRI), 153–154 Pierce, Charles Sanders, 32 Pluspetrol Norte, 73–74, 95–99, 132–133 PODER (Mexico), 85–86 Polanyi, K., 45 political science scholarship, pragmatism and, 32–35 Polity IV Project, 90, 127–128, 155 Popa, F., 33–34 Popkin, M., 81–82 Porras, Gustavo, 111–112 Portillo, Erasmo, 93–94 Powell, W. W., 147–150 power asymmetry access to remedy and, 37–38 agonist perspective on, 41 governance gap scholarship and, 29 non-judicial remedies and, 121–124 profitable firms and, 95–99

267

pragmatism action and innovation and, 34 corporate characteristics and power dynamics and, 40–41 democratic practices and, 151–152, 161–163 human rights scholarship and, 32–35 limitations of, 34n.34 multiple logics and, 33–34 non-judicial remedies and, 5, 113–114, 151–152, 163–164 theories and principles of, 20–21 varieties of remedy approach and, 17–20, 170–172 Pratt, F., 34 ProDESC (Mexico), 104–107 profitable firms. See also firm size judicial remedy pathways and, 89, 95–99 non-judicial remedy pathways and, 118–121, 125–127, 131–136 Program for Development and Peace of Magdalena Medio (PDPMM), 69–70 public interest law movement, 86 Pucacuro community, 132–133 Pulgar-Vidal, Manuel, 128–130 Ramasastry, Anita, 16–17 Ramazzini, Alvaro (Archbishop), 111–112, 141–142, 162, 171–172 Rancière, Jacques, 37–38 Regional Federal Tribunal (TRF1) (Brazil), 100 relative divergence theory, 27n.29 remedies access to, in CHRD, 58–65 varieties of, 58–65 Repsol YPF company, 135–136 rightsholder-centered remediation, 6 Rio Tinto, 157–158 Rodríguez, Marco Tulio, 56–58 Rodríguez-Garavito, C., 15–17, 34 Royal Dutch Shell, 76–77 corporate human rights violations by, 11–12 Rubie’s Costume Company (Hidalgo, Mexico), 93–94 Ruggie, John, 15–17, 28, 34, 72–77, 115n.116, 147–150 rule of law corporate human rights remedies and, 21–22 democratic practices and, 81–82, 155 Freedom House measure of, 88–89 independent variables in, 88–89

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268

Index

rule of law (cont.) institutional strength and, 128–139 marginal effect of, 92–93 non-judicial remedies and, 128–130 Salancik, J.R., 120–121 Salgado, David, 56–57 San Juan Coatzal dispute, 110–114, 141–142, 162 Santay, Concepción, 110–112 Santos, 34 Saro-Wisa, Ken, 11–12 Schaap, A., 42 Schiess Family, 128–130 Schlender, Hermann, 101–102 Schneider, B.R., 29–30 Schrempf-Stirling, J., 6, 149 Schwartsman, Fabio, 11–12 sexual discrimination litigation, varieties of remedy approach and, 98–99 Shell Brazil, 102–104 Shell Petroleum Development Company of Nigeria, 11n.17 Shin, H.J., 121–124 Similox, Victorino, 111–112 Simons, P., 29 Sindicato de Trabajadores de Plantaciones Agrícolas, SITRAP, 134–135 slack resource theory corporate human rights remedies and, 21–22 non-judicial remedies and, 118–121 slavery non-judicial remedies for violations involving, 134–135 prosecution of, 10–11 Smith, Adam, 1–24 Smulovitz, C., 86 social accountability, cumulative effect of engagement in, 159–161 social media, civil activism and, 85 social movements corporate behavior and, 146 non-judicial remedies and, 121–124 soft law corporate human rights violations and, 10, 13 Soskice, D., 6, 167–170 Soule, S.A., 10, 85 Sousainalytics data source, 53–54 South Africa, apartheid regime in, 12–13, 43–44 stakeholder theory contestation and, 146–147

non-judicial remedies and role of, 123, 151–152 Standard Fruit Company, 93–94 state actors contestation and role of, 164–165 corporate characteristics and role of, 120–121 corporate social responsibility and role of, 148–149 governance gap scholarship and, 29 human rights and economic growth and, 161–163 INGO influence on, 86–87 institutional strength linked to, 27–28 land rights violations and, 69–70 non-judicial remedies and, 64–65, 114–116, 120–121, 128–130, 133–136, 154 Physical Integrity Score, avoidance of repressive violence and, 153–154 state-sponsored human rights abuses, 30–31, 156–161 Stepan, A., 81–82 strikes, non-judicial remedies in, 133 structural adjustment programs, governance gap scholarship and, 30 suboptimal outcomes pragmatist approach to, 34 varieties of remedy and, 43–44 Sullivan Principles on apartheid, 12–13 supply chains, human rights violations and transparency in, 10–11 Surroca, J., 117–118 Syngenta, 25–26 Talavera, Silvino, 101–102 tax audits, as non-judicial remedy, 62–63 Tec, 128–130 Tesco, 134–135 The Theory of Moral Sentiments (Smith), 1–24 third wave democratic transitions, 7n.9 Tierra y Vida NGO, 63 Topy Toy, 2–3 transitional justice judicial remedies and, 149–150 non-judicial remedies and, 150–152 Transnational Corporations and Other Business Enterprises, UN open-ended intergovernmental working group on, 16n.20 treaty law, judicial remedy and, 72–73 Tribó, J.A., 117–118 Tripartite Declaration of Principles Concerning Multinational Enterprises, 12–13

https://doi.org/10.1017/9781009293280.015 Published online by Cambridge University Press

Index Truth and Reconciliation Commission (TRC) (South Africa), 147 Tsutsui, K., 42, 121–124 UN Commission on Transnational Corporations (UNCTC), 12–13 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), 110n.112 UN Guiding Principles on Business and Human Rights (UNGPs), 15–17, 29, 58–65 on elevating voices (civil society), 84–87 judicial remedy mechanisms in, 71–77 non-judicial remedies and, 112–118 Unilever, 136 Union Carbide Corporation, 11–12, 77 Union of Construction and Similar Workers (Sindicato Único de Trabajadores de la Construcción y Similares, SUNTRACS), 128–130 United States Alien Tort Statute and, 43–44, 76–77 civil society challenges to corporate behavior in, 10 corporate human rights violations by, 11–12 Universal Declaration of Human Rights, 71–77 UN Working Group on Business and Human Rights, 48–49 Vale, 11–12, 95–99 Van Buren III, H.J., 6, 149 Van der Wilt, H., 73–75 Varieties of Capitalism (Hall & Soskice), 6, 167–170 varieties of remedy approach. See also corporate characteristics; elevating voices; specific pathways, e.g. institutional strength access to remedy issues and, 22–24, 77–79, 172–174 agonism and, 170–172 contestation and, 18–19, 39–44, 139–142, 162, 167–170 dependent variables in, 125–127 development of, 6 efficacy assessment of, 7–8n.11 elevating voices (civil society) and, 24, 41, 84–87, 104–107 firm size and, 102–104 future research issues and, 174–175

269

hypotheses and findings, 107–109 impact on claim-makers of, 147 independent variables in, 89, 125–127 institutional strength and, 92–93 judicial remedy pathways and, 90–109 local actors and, 123 non-judicial remedy pathways and, 113–114, 116–124 profitable firms and, 89, 95–99 schema for, 17–20 suboptimal outcomes and, 43–44 Vergel and Castellanos construction company, 128–130 violations data in CHRD, 51–52, 55–66 cross-industry data, 58 physical integrity abuse, 56–58 violence, state avoidance of, CIRI measurements of, 153–154 voluntary human rights mechanisms current trends in, 15–17 promotion of, 12–14 Voluntary Principles on Security and Human Rights (VPs), 14 Wal-Mart, 9 Warner Brothers Entertainment, Inc., 93–94 Washington Consensus, 50 The Wealth of Nations (Smith), 1–24 Wettstein, F., 6, 149 Williams, Chima, 11–12n.17 witnesses of honor (testigos de fé), 111–112 worker exploitation, examples of, 2–3 Workers’ Union of Colombian Energy (Sindicato de Trabajadores de la Energía de Colombia), 163–164 World Bank Group, Compliance Advisor Ombudsman, 63–64 World Development Indicators (World Bank), 155 World Governance Indicators, 155 Xstrata, 128–130 Yazjii, M., 123–124 Zahra, S. A., 117–118

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https://doi.org/10.1017/9781009293280.015 Published online by Cambridge University Press

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