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Intercultural Human Rights Law Review

First Page

55

Abstract

The obvious recipients of the bounty made possible by modem regional trade agreements (RTAs) are the transnational corporations (TNCs) whose markets these agreements expand and whose investments they protect. It is equally clear, however, that TNCs have escaped direct responsibility for compliance with the obligations undertaken in these agreements, leaving the actionforcing commitments to the signatory governments. Such an escape from quasi-signatory status is inconsistent with emerging international law. In the fields of international criminal and human rights law, it "has long been recognized.., that international law imposes duties and liabilities upon individuals as well as States. Moreover, in most RTAs corporations obtain rights particular to them, such as the right to challenge government actions before international arbitration tribunals for substantial interference with their investments, and, in the North American Free Trade Agreement (NAFTA), the right to challenge national signatories before international dispute settlement panels for breach of national dumping and subsidy laws. From such direct rights may logically follow direct obligations. International scholars adjudge that no rule of international law prevents a treaty's provisions from being applied directly to corporations, without need of implementation by domestic law. Despite this longstanding inclusion of TNCs as rights holders in trade treaties, no RTA of which the author is aware holds TNCs liable for violation of the strong human rights protections in modem RTAs for workers, indigenous communities, and the environment. As a result, these central rights fall outside the usual due diligence that a TNC will perform in evaluating the costs and benefits of undertaking a project. Moreover, the proven dispute settlement systems in RTAs cannot be called into action to remediate or punish actions by TNCs that bank the benefits but avoid the costs of these agreements. The Colombia-United States Trade Promotion Agreement (CTPA or Agreement) is an RTA that boasts such robust human rights protections. In this regard, we applaud the myriad substantial steps that Colombia's new Ministry of Labor has taken to implement its strengthened labor laws and to satisfy the CTPA's high standards for worker rights. New inspectors, investigators, and prosecutors have been hired and trained. Convictions have been obtained against perpetrators of union murders dating back 10 years and backlogs of crimes against unionists have been cleared.3 Colombia's agencies that strive for environmental protection and inclusion of indigenous communities in the economic growth of the country have raced forward with equally forceful actions. Nonetheless, the enormity of the task and the scarcity of resources practically guarantee that Colombia's efforts to implement the Agreement's protections of worker and indigenous rights and the environment will be insufficiently robust to ensure compliance by TNCs. While the TNCs are bound by the laws of the host government, enforcement of these laws is prohibitively expensive for emerging market governments with limited resources. Colombia has taken substantial action to strengthen its labor and other laws to satisfy the CTPA's high standards for protecting workers, indigenous communities, and the environment. However, we believe that only by creating a system to bind TNCs directly to the RTA's human rights obligations, and using the CTPA's many astute processes to assist in enforcement of this system, will we realize the Agreement's intent to protect trade-related human rights. We have identified three options to secure this result: amendment of the RTA to make its human rights provisions directly applicable to TNCs; application to TNCs in Colombia's mining industry of the U.N. Guiding Principles for Business and Human Rights; and Colombia's issuance of a special annex to its mineral extraction licenses. Our analysis indicates that the first option is politically impractical, especially so soon after entry into force of the Agreement, and that the second option relies injudiciously on the TNC's sense of corporate social responsibility. We conclude that compliance with the CTPA's human rights protections will improve substantially only if the Ministry of Mines requires that licenses for TNC projects in Caribbean Colombia's mineral extraction industry include a Human Rights Annex that brings the TNC directly into preventive and remedial enforcement in a cooperative effort with Colombian authorities. The TNC's contribution would include establishment and funding of non-judicial grievance, mediation, and binding arbitration mechanisms to complement the additional inspectors and the strengthened criminal laws that are key elements of the Colombian government's response to the CTPA's protections.

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