Institutionalising CSR in Colombia’s extractive sector: disciplining society, destabilising enforcement?

ABSTRACT

This article analyses the institutionalisation of corporate social responsibility (CSR) in the context of resource extraction in Colombia and the use of human rights language in this normative project. We argue that “rights-based” CSR constructs a new “public–private reason of state” that has disciplinary implications for Colombian society and might contribute to destabilising existing regimes of rights enforcement. Rather than reconciling human rights imperatives and market forces, we conclude, CSR institutionalisation might best be conceptualised as the result of powerful groups strategically harnessing the forces of globalisation.

RÉSUMÉ

Cet article analyse l'institutionnalisation de la responsabilité sociale des entreprises (RSE) dans le contexte de l'extraction des ressources en Colombie, et particulièrement le rôle joué par le langage des droits de la personne dans ce projet normatif. Nous soutenons que cette « RSE dans une perspective de droits de la personne » construit une nouvelle « raison d'État publique-privée » aux conséquences disciplinaires pour la société colombienne et qu'elle pourrait contribuer à déstabiliser les régimes d’exigibilité des droits. Plutôt que de concilier les impératifs des droits humains et les forces du marché, nous concluons que l'institutionnalisation de la RSE pourrait plutôt être conceptualisée comme le projet de groupes puissants exploitant stratégiquement les forces de la mondialisation.

KEYWORDS:

• Colombia
• corporate social responsibility
• natural resources
• rights-based approaches
• human rights

Acknowledgements

We thank the following individuals for their comments on this article: Marc-André Anzueto; Adriana Pozos; all the members of the Réseau d’études internationales sur la valorisation et l’exploitation de la nature, des terres et des ressources en Afrique, Asie et Amérique graduate seminar at Université du Québec à Montréal; Karyn Keenan; Sylvie Paquerot, Bonnie Campbell and our two anonymous evaluators. We are grateful for the research support provided by María Victoria Fallon and for Olimpia Boido’s support with translation. Etienne Roy Grégoire acknowledges the support of the Social Sciences and Humanities Research Council of Canada.

Notes

1. One has but to consult the website of the Human Rights and Business Resource Centre (www.business-humanrights.org).

2. As per the famous phrase – discussed below – of Special Rapporteur John Ruggie: “[T]he root cause of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences” (UN 2008, 3, emphasis added).

3. Adapted from linguistics, in which it refers to statements that are made to produce effects rather than to describe (Austin 1975, 6), performativity has notably been used and popularised by political philosopher and gender theorist Judith Butler. According to Butler (1990, 18), speech acts are performative in that subjects and identities do not pre-exist, but are effects of discursive practices.

4. Zagrebelski (2003) considers that the malleable nature of the law allows for the integration of new and heterogeneous values and enables societies to be rid of dogmatic interpretations inherited from the past (see Martínez Martínez 2009, 419). Sieder, for her part, considers that

[l]egal systems and engagements with the law can […] be understood as contested sites of meaning where dominant ideals and values provide the framework for contestation and for advancing alternative understandings and practices […] [L]aw is constantly negotiated and reshaped in a dynamic dialectic between hegemonic projections and counter-hegemonic actions. (Sieder 2011, 242)

5. The context of globalisation is undoubtedly pertinent here even if, as noted by Sieder, the processes described by Frydman and Chérot are not new. Sieder argues, however, that they have been exacerbated by

the increasingly complex legal pluralism generated by economic and legal globalization [and] the accelerated fragmentation and de-centering of State sovereignty which has occurred as a consequence of […] neoliberal policies encouraging ever greater outsourcing of the traditional functions of government. (Sieder 2011, 242)

6. In this article, we use Szablowski’s definition of political identity. For him, “[law] is […] both an obstacle and a resource for social actors in their efforts to achieve their goals[;] ‘political identity’ [refers] to a particular way in which a legal order may play these constraining or facilitative roles” (Szablowski 2007, 303).

7. In particular, the Comptroller General fears that

[there] may be processes in which State institutions are seised, co-opted and reconfigured by companies which may be transnational and/or national, legal, grey (whose actions occur in the grey zone dividing that which is legal from that which is not) and openly illegal[,] with the added challenge that in the next few decades the struggle to monopolise the soil and subsoil may become one of the main factors, if not the main factor, in the creation and deepening of conflicts and violence[.] [This is particularly concerning] in a country like Colombia, which has witnessed a never-ending struggle for land as a tool to gain political and economic power, through various illegal and illegitimate avenues, though not excluding others of an apparently legal nature. (CGR 2013, 19)

8. The National Development Plan 2011–2014 establishes five “locomotives” which “lead economic growth in Colombia”, including the “mining locomotive”, to which a “crucial role” has been granted (DNP 2011, 53).

9. The Ombudsman’s Early Warnings System constitutes:

an important mechanism for identifying and preventing human rights violations[.] Through the System, the Ombudsman gathers, verifies and examines information about civilians in vulnerable situations or at risk as a result of the armed conflict, and informs authorities in charge of protection, so that the corresponding timely and comprehensive response may be coordinated and implemented for the affected communities. (UN 2010, 6)

10. Canada is the most significant source of foreign direct investment in the Colombian extractive sector. According to the Canadian Colombian Chamber of Commerce, 82 per cent of the 70 Canadian companies operating in Colombia in 2013 were from the mining and energy sector (CTI 2013, 29–41). For more information about Canadian companies in Colombia, see Colombia Working Group (2015).

11. Ministries of: Foreign Affairs, Commerce, Industry and Tourism, Labour, Mines and Energy, the Presidential Programme on Human Rights and International Humanitarian Law, the High Council for Coexistence and Citizen Security, Proexport and the National Planning Department.

12. Government: Presidency and Vice-presidency of Colombia, Defence Ministry, Ministry of Foreign Affairs, Armed Forces High Command, National Army, Private Security and Surveillance Agency, National Police. Companies: Anglo American, AngloGold Ashanti, Asociación Colombiana de Petróleo, Cerrejón, Ecopetrol, Equion, Ecooro, ISA, Isagen, Oxy, Río Tinto, Talisman. Embassies: United States, United Kingdom, the Netherlands, Canada. Civil society: Institute for Human Rights and Business, Fundación Ideas para la Paz, Universidad Externado de Colombia, International Alert, Fundación País Libre (CME 2015).

13. The terms “Illegal Armed Groups” or “Illegal Armed Actors” are often used indiscriminately in reference to guerrilla, criminal and paramilitary post-demobilisation groups. Each of these actors, however, follows a different political logic and prioritises different strategies with regard to the extractive sector. While these different politics and priorities lie beyond the scope of this article, it must be noted that our argument relates more specifically to paramilitary organisations.

14. See note 13.

15. Indeed, Berns compares the normative project of CSR with contemporary counter-insurgency practices in a way that is particularly evocative:

[I]n reflecting on new forms of war or military interventions […] it is possible to note a shift of attention from the line separating the two sides, as in a Clausewitzian war, to a focus on the population. This shift is due to a valuing of a range of tactics, rooted in colonial wars and counter-insurgency practices[.] [Its] main objective […] is to conquer the hearts and minds of the populations, which is to say precisely that which was to be considered […] impossible, irrelevant in a context where the focus of reflection is sovereignty – and even dangerous for the confusion it creates about the status of war targets. (Berns 2011, 159–160)

16. Tension between the imperative of effectiveness and the rights of victims is not unique to this context. With regard to non-judicial grievance mechanisms implemented by companies, for example, United Nations bodies have not resolved whether the legal immunity that some companies seek to ensure through these mechanisms is compatible with their Duty to Respect Human Rights, as set out in the Guiding Principles (Coumans 2014, 7).

17. Corruption impacts human rights in numerous ways and is, in and of itself, difficult to confront within the Colombian extractive sector (Massé and Camargo 2012, 41–42).

Additional information

Funding

This work was supported by the Social Sciences and Humanities Research Council of Canada under [grant number 410-2006-2499] and Doctoral [grant number 767-2015-1558].

Notes on contributors

Etienne Roy Grégoire

Etienne Roy Grégoire is a PhD candidate in political science at the University of Ottawa and a member of the Centre interdisciplinaire de recherche en développement international et société (CIRDIS) of the Université du Québec à Montréal. He has worked in the field of human rights in Guatemala and Colombia.

Luz Marina Monzón

Luz Marina Monzón is an Inter-American Human Rights System expert, trial attorney, activist, researcher and lecturer at Universidad Santo Tomás (Bogota), Universidad Industrial de Santander (Bucaramanga) and Universidad del Rosario (Bogota) in Colombia. She has worked as a research consultant with Colombian and international NGOs and in the field of human rights promotion in Guatemala, Peru, Argentina, Mexico, Iraq and Spain.