International Corporate Social Responsibility: Chiquita Brands international condemned in the United States for human rights violations in Colombia.
For EarthRights International, a human rights organization, the U.S. court decision is historic “This historic ruling marks the first time that an American jury has held a major U.S. corporation liable for complicity in serious human rights abuses in another country, a milestone for justice”[1].
The origin of the judgement
On Monday June 10, 2024, a federal court in the Southern District of Florida, USA, “has found banana giant Chiquita Brands International liable for financing the United Self-Defense Forces of Colombia (AUC), a brutal paramilitary death squad” and ordered the American company to pay $38.3 million to the families of eight Colombians murdered in their country by right-wing paramilitaries[2].
By providing more than $1.7 million in illegal funding between 1997 and 2004 to the AUC, which in 2001 was included on Washington’s list of terrorist organizations, “Chiquita contributed to untold suffering and loss in the Colombian regions of Urabá and Magdalena, including the brutal murders of innocent civilians”[3], resulting in human rights violations.
What could be the global impact of the judgement?
As mentioned above, this is the first time that a U.S. judge has convicted a domestic company for acts committed in another country where it operated through subsidiaries.
And while the ruling is made domestically in the United States and at first glance may not represent a risk of a transnational nature, there could be an impact looming from two directions.
Firstly, an impact for the private sector, the companies, on the liability they may incur for violations in other countries, and secondly, for the public sector, the government, and the measures they can take to prevent these violations.
Impact for the private sector
Firstly, US transnational companies already know the risk of being condemned in their home country for human rights violations in a foreign country where they operate and as is well known many US companies have a presence in most countries of the world including Microsoft, Apple, NVIDIA, Google and Amazon[4].
This means that all these companies will begin to take measures internally to avoid any type of human rights violation, being able to establish requirements for contracting with other foreign companies, including respect for human rights in the countries in which they operate through subsidiaries.
On the positive side, this would generate an increase in the standards of compliance of companies with the provisions of human rights protection at national and international level, avoiding injustices as serious as those that have occurred in Colombia.
But it could also have a negative impact on smaller companies that, not having sufficient resources to implement the measures imposed by large companies, would be excluded from the market to be able to hire.
Impact for the public sector
Secondly, it could have an impact at the state level, because it is the jurisdiction of a country such as the United States who issued the decision, a global power and a country with a major global influence.
This could mean that other countries could be influenced by this decision, implementing at national level the same legal rationing and condemning national companies that have committed human rights violations in other countries; avoiding cases such as Rana Plaza, Bangladesh, where the explosion of a textile factory in which multinationals from different parts of the world were producing went unpunished and where different multinationals continue to install themselves and continue to violate the human rights of workers who are not protected by their own governments.
The tightening of corporate social responsibility
As is well known, corporate social responsibility has been considered as a voluntary behavior that should be promoted by a variety of legal and economic means, rather than by coercion (« voluntary approach »)[5]. In other words, each company decides how and through which actions it complies with what it considers to be corporate responsibility.
However, through cases such as that of Chiquita Brands, we see how, through government intervention, companies are forced to implement actions conceived within the scope of corporate social responsibility, giving way to a regulatory approach that leaves voluntariness behind.
Towards a legally binding international human rights instrument for transnational corporations (TNCs) and other business enterprises
Although efforts have been made over time to create a binding instrument for companies to ensure respect for human rights abroad, they have remained in non-binding documents such as the United Nations Guiding Principles on Business and Human Rights adopted in 2011[6], which, although they are considered guidelines that can guide the actions of companies, as they are not binding, companies are free to put them into practice or not.
Notwithstanding the above, other efforts have also been made, such as the implementation of due diligence at European Union level through the adoption of a directive or at the global level through the negotiations to develop a legally binding international instrument to regulate, within the framework of international human rights law, the activities of transnational corporations and other companies, which although it is a debate that has been going on since 2014, the impact it could have could be of great importance.
And something that could have an impact on these negotiations could be in this case the judgment against the company Chiquita Brands, as it would give a push to the different negotiating governments and increase the interest of companies in implementing this international instrument to avoid condemnations and, not least, to protect human rights.
Thus, transforming a soft law such as the issue of transnational corporate social responsibility into a hard law that can bind and oblige companies to respect human rights in countries where they have subsidiaries and where legislation is laxer or where justice is not imposed in the right way.
[1] https://earthrights.org/media_release/colombian-victims-win-historic-verdict-over-chiquita-jury-finds-banana-company-liable-for-financing-death-squads/
[2] https://www.lemonde.fr/international/article/2024/06/14/colombie-le-geant-americain-de-la-banane-chiquita-brands-condamne-pour-avoir-finance-les-paramilitaires_6239933_3210.html
[3] https://earthrights.org/media_release/colombian-victims-win-historic-verdict-over-chiquita-jury-finds-banana-company-liable-for-financing-death-squads/
[4] https://www.axi.com/int/blog/education/shares/largest-companies-in-the-world
[5] https://convention-s.fr/notes/la-resolution-equateur-entre-ideal-et-pragmatisme/
[6] https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_fr.pdf
[7] image : https://www.contextoganadero.com/internacional/inicio-juicio-en-ee-uu-contra-chiquita-brands-por-financiar-paramilitares-en-colombia
