September 10, 2013
by Erika George
Last week, I had the privilege of attending the first Latin American Regional Forum on Business and Human Rights in Medellin, Colombia. Convened by the newly appointed United Nations Working Group on the Issue of Human Rights, Transnational Corporations and Other Business Enterprises, the Forum was intended to identify the key human rights concerns in the region and ways to encourage multi-stakeholder dialogue on business impacts.
Inside the conference venue senior Colombian government officials reaffirmed their commitment to protecting human rights and representatives from the business community from around the region reported on their efforts to better understand and address their impacts on communities. Outside the conference venue thousands of Colombian small-scale farmers had taken to the streets protesting the government’s trade policies. Several cities across Colombia became protest sites as students joined the farmers on the streets in solidarity.
The inconvenience and potential embarrassment of unrest in the nation while playing host to the international community was not lost Colombian leadership. To his credit, rather than pretending that social consensus exists in the country and diminishing the concerns of protesters, the Vice President instead pointed to the open and public dissent going on outside the conference venue as evidence that Colombia was finally on the path to true democracy after decades of violent conflict.
Farmers left their fields for the streets of the country’s capital city to show a broader segment of society their suffering—they say due to the impacts of the Free Trade Agreement Colombia recently executed with the United States. Farmers fear that Colombian small-scale agriculture will be unable to compete with large-scale American agribusinesses that benefit from subsidies.
The protests turned violent when protesters clashed with police. To date, two people have lost their lives. The government deployed troops to patrol the capital city, Bogota. http://www.bbc.co.uk/news/world-latin-america-23903099
This week, I was prepared to deliver a previously planned guest lecture at University of Los Andes in Bogota http://derecho.uniandes.edu.co/on the general study and practice of international law. My faculty host informed me that her students were now more interested in what free trade agreements with my country will mean for their country’s farmers and their country’s future. Given the context of current events in the country, I thought it appropriate to change my lesson plan and consider the human rights costs and benefits of the trade bargain my country has struck with theirs.
Years in the making, the Colombia Free Trade Agreement was delayed for a significant time by concerned members of Congress reluctant to reward a country with such a poor rights record with a trade accord. Congressional concerns were not just limited to the prevalence of violence against members of Colombian labor unions. Congressional anxieties also extended to inadequate efforts to bring perpetrators of violence to justice and insufficient protection of workers’ rights in general.
In light of these Congressional concerns, the final Agreement contains a Labor Action Plan (LAP) detailing concrete steps for the Colombian government to take to protect worker rights. http://www.ustr.gov/uscolombiatpa/labor. The LAP requires Colombia to enact legislation establishing criminal penalties for employers that undermine the right to organize or threaten workers who exercise their labor rights. Consistent with LAP, Colombia has passed legislation to establish a separate Labor Ministry to provide better institutional capacity to protect labor rights. The government has hired additional labor inspectors and has increased its budget to hire even more labor inspectors over the next four years.
Among other measures, LAP provides that the International Labor Organization (ILO) should be welcome to significantly strengthen its presence in Colombia in order to monitor and help implement the measures outlined in the Action Plan related to Labor Rights. The Prosecutor General’s Office will reopen and analyze closed homicide cases involving labor organizers to improve the investigation and prosecution of future cases by identifying the shortcomings in earlier instances. Colombia has also launched an outreach program through television, newspapers and electronic media to inform workers of their labor rights.
With these LAP protections in place, in October 2011, the U.S. Free Trade Agreement with Colombia entered into force. Its immediate effect was to eliminate tariffs on 80% of consumer and industrial goods from the U.S. to Colombia, including agriculture. Other subsequent measures to eradicate remaining tariffs in Colombia on U.S. goods and services will be phased in over time of 15-year period.
The U.S. stands to enjoy significant benefits from the accord. In 2010 US exports to Colombia exceeded 12 billion. Colombia purchases more from the U.S. than Russia or Spain. The International Trade Commission estimates an overall expansion of trade between the two nations in excess of $1.1 billion U.S. and projects an increase in the U.S. GDP by up to $2.5 billion due to the agreement. http://www.usitc.gov/publications/docs/pubs/2104F/pub3896.pdf.
The Office of the United States Trade Representative http://www.ustr.gov/uscolombiatpa asserts that the agreement will support American job creation increase U.S. exports and enhance U.S. competitiveness by eliminating tariffs and other barriers to U.S. goods entering the Colombian market-- 90% of Colombian products already came to the U.S. duty free while prior to the agreement U.S. goods were taxed an average of 9% by Colombia. The agreement also reduces the risk that the U.S. will be put at a competitive disadvantage with respect to Colombia’s other trading partners. Colombia has trade agreements with other Latin American nations through MERCOSUR (Brazil, Argentina, Paraguay and Uruguay) and will soon conclude an agreement with the European Union.
On these measures, the accord is a win for the U.S. Local Utah businesses can also expect to benefit. Utah businesses exported an average of $9.3 million worth of goods to Colombia from 2008-2010. http://www.trade.gov/fta/colombia/utah.pdf Utah trade will no longer be encumbered by tariffs.
The trade accord was to be a “win-win” for both countries but the benefits that Colombians will derive are less clear and remain contested by the protestors that took to the streets across the country. A proper assessment of the consequences of the accord for Colombia requires an appreciation of the context of conflict the country is still struggling to overcome. While recent efforts to craft a peace agreement between the government and the Marxist revolutionary armed forces of Colombia (the FARC) have shown some promise, a risk of conflict remains. It is far from clear that the country will be able to move forward without also addressing abuses that have occurred in its past. It is against this backdrop that the merits of the free trade accord must be assessed with greater attention given to the distribution of benefits and burdens across Colombian society
Colombia has struggled with a complex and seemingly constant conflict for several decades. With an estimated 5.4 million people displaced by violent conflict, Colombia holds the unfortunate distinction of being home to the world’s largest population of internally displaced people—those who live as refugees in their own country. According to Colombian NGO Consultoria para los Derechos Humanos y el Desplazamiento (CODHES), over 10 percent of the nation’s entire population have been displaced since 1985.
Consequences of the trade accord for Colombia are complicated by its past and the present structure of its agricultural economy. The benefits the accord was to bring the country notwithstanding, further displacement was predicted as a possible burden. A 2009 Oxfam report warned of impact on incomes of small-scale Colombian farmers were a free trade agreement with the US to be adopted. Oxfam forecasted that the average income of 1.8 million small farmers would fall by 16%. Up to 400,000 farmers would confront incomes drops of up to 70%, essentially forcing them out of farming. http://www.oxfamamerica.org/files/colombia-fta-impact-on-small-farmers-final-english.pdf Colombia’s Ministry of Agriculture also expressed concern that a trade agreement without adequate agricultural protections would leave rural Colombians with an undesirable set of options: working in drug cultivation zones or affiliating with illegal armed groups.
The farmers who left their fields last week to agitate for change have not yet as feared resorted to working in drug cultivation or affiliating with illegal armed groups, rather they exercised another option. They chose to peacefully protest their government, make their grievances known to the public, and demand respect for their rights.
The recent unrest and uprisings in Colombia raise questions concerning the respective responsibilities of governments in awarding trade concessions and crafting accords that have implications for human rights. These broad questions were not on the agenda of the UN Forum but certainly remain relevant for the future success of any initiative to address the impacts of economic globalization.
The new UN Framework and Guiding Principles on Business and Human Rights, unanimously adopted by the UN Human Rights Council, is a global policy response to the risks associated with the rise in transnational economic activity. Colombian farmers feel they are facing an uncertain future in the global marketplace. A new body of five independent experts representing a diverse range of geographical regions was created by the UN Human Rights Council in 2011 to promote the implementation and dissemination of a new framework for understanding the respective roles of government and business with regard to ensuring human rights are protected in the context of a global economy. http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. Under the framework states have a duty to protect human rights, the business community has a responsibility to respect human rights, and victims of violations have a right to effective remedy. This framework is to provide an authoritative focal point around which the expectations and actions of various stakeholders could converge around rights and duties.
I invited the students to look at the protests through this lens of rights and duties and consider how such a framework might fit in the context of U.S.-Colombia trade relations. I asked them to contemplate what the correct course of conduct for a country like Colombia would be—consistent with both its obligations to protect human rights and its newly assumed trade agreement obligations.
Over the course of our class discussion, unfortunately perhaps for the current government, the students came to place the blame for the current state of affairs fully at the feet of their government for its failure to uphold its responsibility to protect the rights of Colombian citizens. When it agreed to a trade deal with potentially devastating impacts on the farmers who feed them, Colombia failed to meet its obligation to protect the human rights of its most vulnerable citizens.
I appreciate that power asymmetry exists between trading partners. The size and level of development of our two economies differ significantly. The gross domestic agricultural product of the U.S. is 15 times greater than that of our Colombian counterparts. The degree of technological development in the U.S., measured in the number of tractors per thousand workers, is an estimated 257 times superior to Colombia’s development. http://www.oxfamamerica.org/files/colombia-fta-impact-on-small-farmers-final-english.pdf. These are after all free trade agreements, not fair trade agreements. Nevertheless, I was struck that the students did not appear in the slightest to expect the U.S. to do anything other than advance the interests of its citizenry and take advantage of the competitive advantage it holds by virtue of its economic power.
The Colombian government has agreed to talks with the farmers. The streets were returning to normal as I returned to the U.S. this week. Events in Colombia did not attract much U.S. media attention. Tensions over trade agreements with our regional partners do merit more attention.
While a Colombian citizen might not expect their interests to be uppermost in the mind of a U.S. policy maker, I believe it is particularly important in this context to remain mindful of the role of law in exacerbating existing social problems and the risk of instability and insecurity where there is economic displacement. Our two countries share an interest in combatting trafficking in drugs and people as well as countering the terror of political violence. Progress on these fronts could be further complicated by the precarious position of small-scale Colombian farmers absent intervention. It is unwise and counter to the interest of both nations to contribute to economic distortions that further complicate a path to peace.
Providing technology transfers and assistance to small farmers to improve their agricultural production could be a constructive intervention in Colombia. The agribusiness project of the United States Agency for International Development (USAID) works to make small scale farming enterprises more competitive to create employment opportunities and alleviate poverty. http://www.agribusiness.org.pk/
While the plight of a small-scale farmer in rural Colombia may seem a world removed from our fortunes in Utah, we would be well advised to continue to watch developments in the region as growing global economic interdependence stands to impact each of us.
Erika George is Professor of Law at University of Utah’s S.J. Quinney College of Law and Co-Director of the Center for Global Justice. She teaches constitutional law, international human rights law, international environmental law and seminar courses on corporations and human rights. She earned her B.A. from the University of Chicago and her J.D. from Harvard Law School. She also holds an M.A. in International Relations from the University of Chicago. Her current research explores the responsibilities of multinational corporations to respect international human rights and various efforts to hold corporations accountable for alleged rights violations. She is the author of Incorporating Rights, forthcoming from Oxford University Press.