Under the UN Guiding Principles on Business and Human Rights (UNGPs) states have a duty to protect human rights when affected by business activities, companies have a responsibility to respect human rights throughout their operations and business relationships, and both must provide access to effective remedies to victims of business-related human rights abuses.  But are these principles being met on the ground? Recent research in Bolivia and Chile suggests their implementation, even when buttressed by binding treaty provisions, is currently not strong enough to protect the rights of indigenous communities.

The main legally binding international instrument to fulfil these duties and responsibilities with regard to indigenous peoples is ILO Convention 169.  In Bolivia 62% of the population is indigenous, while 11% of the Chilean population identified themselves as indigenous in the 2012 census. The convention calls for consultations to be carried out when an activity directly affects indigenous communities.  Consent obtained from the community must be freely given through its representative institutions and the community must be informed of their legal rights. Free, prior and informed consent to development projects on indigenous land is also guaranteed in the UN Declaration on the Rights of Indigenous Peoples.

In Chile, six years after ratifying ILO 169, consultations adhering to these standards are rare. According to findings by human rights experts at Consorcio Norte-Sur, the lack of adequate regulation by the Chilean state is a significant problem, as it allows the private sector too much discretion in interpreting how to carry out consultations, which are often faulty or meaningless. Civil society and the ILO supervisory mechanism tasked with overseeing the application of conventions pushed for reforms, but there are doubts the resulting draft regulation carries sufficient weight to ensure Chile’s effective application of the convention 

Mining is hugely important in Chile, and often takes place on or near indigenous peoples’ ancestral land. Their right to be consulted on these projects is closely related to the realization of other rights, such as the right to water.  Mining concessions polluting or using excessive water in indigenous lands is a significant challenge. 

Across the border, Bolivian groups similarly complain of inadequate or failed consultation in relation to oil, gas, mining and infrastructure projects.  The indigenous peoples collective CONAMAQ reports the contamination of indigenous lands and rivers leading to health problems, congenital malformations in livestock and birth defects in local communities.  In their view, if the recommendations emerging from consultations are not implemented properly, they can do more harm than good for communities. They also report that co-optation of a part of the community with gifts and favours is common, leading to divisions and artificial consent. 

Bolivia’s president, Evo Morales, declared Bolivia a “plurinational” state with the right to consultation enshrined in its Constitution.  Yet, abuses persist, alongside poor implementation of international standards on consultations.  Bolivia ratified ILO 169 in 1991 and has received more than a dozen communications from the ILO supervisory committee which, in relation to one project involving the construction of a major highway that would severely affect indigenous territories, noted “with regret” the government’s unwillingness to engage on this issue.  Following a national march by indigenous communities, the project is currently stalled.

The UNGPs require companies to respect rights regardless of whether the state is fulfilling its duties. But in Bolivia and Chile many companies are unaware of the UNGPs. In June 2011, the UN Human Rights Council mandated a Working Group with the promotion of dissemination and implementation of the UNGPs. However, the Working Group does not have the funding or capacity to undertake systematic monitoring of companies’ responsibility to respect, and lacks other effective enforcement mechanisms. Although civil society takes on a significant oversight role in the absence of a formal supervisory mechanism, implementation is left primarily to states and companies. It is questionable how effective this has been so far. 

Carrying out due diligence and rigorous human rights impact assessments is one of the key duties of companies established in the UNGPs.  In Chile, environmental impact assessments are required by regulation, but social impacts, and particularly human rights, are not given sufficient weight within these evaluations.  A lack of awareness is no longer an excuse as guidance tools are available and companies such as Kuoni, Nestlé and Unilever have published human rights impact assessments and methodologies.

In the case of Chile, semantics may also be an obstacle as “human rights” are still strongly associated with abuses committed during the Pinochet dictatorship, and companies resist any association with “human rights responsibilities”.  Human rights are often a politicised subject or considered a historical issue solely in the remit of the state. 

The weak implementation of international business and human rights standards in Chile and Bolivia illustrates the need not only for stronger action by the governments and companies, but also the role of the international community in driving more effective implementation of existing human rights norms and instruments.  For example, trading partners, such as the European Union (EU) or the US, could use their leverage to require better implementation, including by tying human rights standards to investment and trade agreements. 

Moreover, regional bodies could take the opportunity to call on their members to develop National Action Plans on business and human rights to establish a clear and action-driven strategy to address implementation gaps, as the EU did in 2011.  In Latin America, so far only Colombia has published a plan in the form of a business and human rights chapter in its human rights action plan.  In addition, the Inter-American Commission and Court on Human Rights could start referring to business and human rights standards more systematically in their rulings and recommendations. 

In the absence of rigorous enforcement mechanisms, the challenge for local and international civil society is to act as a de-facto supervisory mechanism for business and human rights, documenting abuses and working in tandem with existing mechanisms. Creative collaboration across these groups is essential to hold governments and companies to their human rights commitments and responsibilities.