By Lydia Kriki
Lydia Kriki (LL.B., LL.M. Athens; LL.M. Université Paris 2 Panthéon-Assas) is an Athens-based lawyer currently working on projects aiming at the integration of various fields of European Union law. LinkedIn
In one of the most remarkable evolutions in the field of environmental litigation, the IACtHR recently recognized the existence of a right to environment in a clear and unequivocal way. Since then, Latin America has been actively developing case-law pointing towards this direction, based on Article 26 of the American Convention on Human Rights. This effort cannot be characterized as incidental: through it, the Latin-American countries attempt to entrench their peoples’ cultural and national integrity. Building jurisprudence which acknowledges the right to a healthy environment is also a critical move for enhancing a State’s sovereignty: establishing human rights has always been a decisive component of a State’s self-determination. According to the traditional theory founded in the dawn of 19th century by Georg Jellinek, fundamental rights are the product of an act of self-limitation of the state, which placed boundaries on itself, making a space of freedom for the citizens. Under this prism, individual rights were created and safeguarded according to Fabbrini, because of the existence of the State as the “personified sovereign”.
However, this sovereigntist vision, well-embedded as it is in the contemporary legal thought, fails to provide a convincing explanation for many of the changes spotted nowadays: the State-centered approach is often unable to offer a satisfying explanation for the complex dynamics unfolding in a multi-layered regime. Lately, the State’s dominance over human rights and their role is trembling over the shift in sovereignty our world sees during the recent decades. Another pole is emerging as the State’s main antagonist: Corporations. It is no novelty for the legal thought the conception of the corporations acting as private sovereign powers. Moreover, as the corporations can have a tremendous impact on the environmental management, they also influence the enjoyment of the environment by individuals.
Consequently, sovereigntism seems to run out of explanations as to the emerging “corporation pluralism”: in the framework of the neoliberal markets, corporations not only develop economic activity, but they also interfere directly with the peoples’ rights (including environmental). Especially for the Latin-American region, it is partially explained by the fact that the neoliberal philosophies still actively pervade the whole continent, shaping perspectives on the State’s role, the directions of public policies, and the relationship between citizens and the state. As it has been previously stated by David Harvey: “Neoliberalism […] has become incorporated into the common-sense way many of us interpret, live in, and understand the world.”
However, this so-called “common-sense” way of looking into the world and apprehending it, has been contested by the indigenous communities, based on ethnological perspectives we, the westerners, are unable to keep up with. Consequently, as it has been thoroughly exposed, indigenous peoples disputed the neoliberal policies and the structural reforms deriving from the latter, calling for recognition of their collective rights (including the right to be consulted about projects that may impact them).
That was very much depicted in the case of Total E&P, the Bolivian subsidiary firm of the French company Total, operating in Bolivia’s Chaco ecoregion, which has been threatened by a decrease of water availability. Since many projects in the Chaco overlap indigenous Guaraní territories, the Guaraní have participated in many prior consultation and environmental licensing processes. However, the representative Guaraní organization Assembly of Guaraní Peoples accused Total E&P for pressuring and bribing indigenous representatives during consultation processes and the indigenous communities argued that Total’s activities would violate their rights to fair compensation, employment, and water. In some cases, the indigenous organizations accused Total E&P that it even had already carried out new activities in Guaraní territories without any prior consultation.
This arrogant behavior calls back in Total’s statements for its gravity and significance not only as an economic factor, but also as a statal one. The energy giant had been, not long ago, claiming the role of France’s formal representative. Total’s CEO made a bold declaration, indicating the level of the independence the conglomerate considers it has, by stating: “Even if Total is a private company […] in a way, it represents the country itself”. The statement aptly illustrates the tug-of-war between the public and the private sector taking place currently, calling into question even the traditional institutions representing the State: lately, it is the companies, the enterprise branch, the funds and the banking industry that substitute the consular representations and the permanent delegations.
The Total case is just one of the hundreds similar ones, putting in risk the populace rights and bleeding the region’s resources dry. Texaco (and its successor, Chevron) had found itself in the middle of a series of legal battles, when local tribes turned to the legal system to compel it to clean up the Ecuadorian Amazon rainforest and care for the people who have been sickened by the oil operations there. Frontera Energy caused serious oil spills at sites under its responsibility and Pluspetrol has caused more contamination from oil spills than any other company: almost 95% of the oil that has spilled in the Amazon during the past two decades (2000 to 2019) came from only two oil blocks managed by it. Repsol, the Spanish fossil fuels giant, left social and environmental destruction on its pursuit for new gas and oil reserves in Perú, a country which has suffered much from the powerful multinationals. The Swiss-based Glencore-Xstrata, also developing activities in Perú, achieved through political manipulation to expand its copper mining operations in the region, contaminating the scarce water resources. At the same time, the company has attained through systematic and pressing lobbying to benefit from corporate-friendly policies.
As many northern corporations saw their profits decreasing due to the 2011 recession, they turned to ‘invading’ every single country in Latin America. Since these corporations aggressively develop numerous and ambitious projects in the area, a critical Report on the subject called them the “corporate conquistadors”, invoking the practices of the Spanish centuries ago – a new form of colonialism, much more modern, much more effective. The Report claimed that the high-powered multinational corporations manage to overcome resistance to their harmful environmental practices by infiltrating a country’s political process, making promises that are never met, or by simply ignoring local opposition.
After all these being said, it is easily understood that all these mega-corporations should not be treated as merely powerful trans-national corporations (TNCs), imposing global market patterns and influencing the world economic landscape. On the contrary, since they affect the human rights system and crucial concepts like peoples’ development and independence, they shall be handled as they are private, multinational sovereign powers, drawing their potency by the consent (or tolerance) of the political, social and economic forces. Taking into consideration the fact that these organizations must serve the interests of a wide (and sometimes heterogeneous) shareholder base, it is easily deduced that, in fact, corporations may have even bigger power than States as for intervening in the human rights area.