Judicializing Transnational Corporations in a Global Legal Order (original) (raw)
Related papers
This research investigates the criminal modalities of the alliance between multinationals, the state and the dominant class in Colombia. The theoretical approach synthesises critical criminology with the dependency school, adapting the model put forward by Pearce (1976) that understands corporate crime as the rational extension of legally sanctioned activities. The research asks whether certain investment strategies (ECLAC, 2003) lead to characteristic forms of rights violations. The methodology is founded on dialogue with the affected social movements. There are three case studies exemplifying ‘efficiency seeking’, ‘natural resource seeking’ and ‘market access seeking’ investment strategies. The interaction between neoliberal policies, investments and the Colombian state is found to be highly criminogenic. A clear economic rationale emerges of violations consistent with the investment strategy, confirming Pearce’s thesis. The research finds a common incidence of paramilitary violence as an informal system of social control. Access to, and navigation within, these systems is a learned behaviour that is transmitted through specific private networks and constitutes part of the ‘social capital’ of the dominant alliance. The neo-classical theory of economic rent underpins World Bank research problematising opposition forces rather than conflicts arising form the multinational investment. This research concludes that on the contrary corporate ‘rent seeking’ is an economic incentive to infringe on human rights claims and to externalise social costs. The thesis concludes by emphasising the profit motive, and advances a concept of corporate crime as a means to increase exploitation. The pursuit of corporate crime is likely to increase with greater opportunity and with the corporation’s neutralisation capacity. Opportunities for crimes of the powerful are structurally greater in Third World countries, where decentralised organisation enhances a multinational’s ability to deny responsibility. This gives rise to the para-corporation, that is of the corporation but not in it - a deniable, parallel existence complicit in ‘dirty’ behaviours.
Lawfare: The Colombian Case [Guerra jurídica: el caso colombiano]
Rev. Cient. General José María Córdova, 2012
The terrorist groups in Colombia have applied Mao’s theory of protracted people’s war, seeking to use all available means of struggle to achieve their revolutionary goals by counteracting govemment policy. One way that Fuerzas Armadas Revolucionarias de Colombia (FARC), Ejército de Liberacion Nacional (ELN), and illegal paramilitaries confront the nation is the use of ‘lawfare’ defined as the opposing force’s use of the national and intemational judicial systems to achieve victory and legitimacy when they cannot challenge the government militarily. Terrorist groups have skillfully infiltrated the Colombian judicial system, and are utilizing the both nationallegal institutions and the intemational law system against the government. They have received support for their struggle from various agents and organizations within the society that, intentionally or unintentionally, are serving their interests. This paper provides a holistic understanding of this complex situation currentIy taking place in Colombia, shows how FARC and ELN are using lawfare in the context of the protracted people’s war as a tool to challenge the government, and offers an starting point to examine altematives to deny the terrorist groups the ability to utilize the judicial system to achieve their political goals [Los grupos terroristas en Colombia han aplicado la teoría de Mao de la guerra popular prolongada, tratando de utilizar todos los medios disponibles de lucha para lograr sus objetivos revolucionarios de contrarrestar la política de gobiemo. Una manera en que Fuerzas Armadas Revolucionarias de Colombia (FARC), el Ejército de la Liberación Nacional (ELN) y grupos paramilitares ilegales confrontan a la nación es el uso de la “guerra jurídica” que se define como el uso por parte de fuerzas de oposición de sistemas judiciales nacionales e intemacionales, para lograr la victoria y ganar legitimidad, por cuanto no pueden enfrentar militarmente al gobierno. Los grupos terroristas se han infiltrado hábilmente en el sistema judicial colombiano, y están haciendo uso tanto de instituciones legales nationales como del sistema de derecho intemacional, para ir en contra del gobierno. Han recibido apoyo para su lucha de distintos agentes y organizaciones al interior de la sociedad que intencionalmente o no, están sirviendo a sus intereses. En el presente artículo, donde se presenta una comprensión holística de esta compleja situación que actualmente tiene lugar en Colombia, se muestra cómo las FARC y el ELN están utilizando la guerra jurídica en el contexto de la guerra popular prolongada, como una herramienta para desafiar al gobierno, y ofrece un punto de partida para examinar altern ativas de solución que permitan frenar la capacidad de los grupos terroristas de utilizar el sistema judicial para el logro de sus objetivos políticos]
INTERNATIONAL LAW AND TRANSITIONAL JUSTICE: EXPLORING SOME CHALLENGES THROUGH THE COLOMBIAN CASE
AJIL-Unbound, 2022
Latin America has always been central to the configuration, interpretation, and operation of the field of transitional justice. Starting in the late 1980s with contributions from scholars interested in democratic transitions after dictatorships in the Southern Cone, the 1996 signing of the Peace Agreement in Guatemala, and the Truth Commission in Peru, to the more recent case of Colombia, Latin American academics and activists have contri- buted significantly to the theory and practice of transitional justice. This essay explores a question central to recent transitional justice processes: the interaction and possible contradictions between the aim of ending a violent inter- nal conflict and the demands imposed by international law. Colombia serves as an example. The Colombian case is informed by all previous experiences, but it is also novel because it is the first transitional justice process established in the region since the establishment of the International Criminal Court. Although the Colombian process is still being implemented and it is too early to claim its success or failure, the case offers important insights into the tense, complex, and overarching interactions between international law, internal peace, and transitional justice. This essay explores how local and external actors involved in negotiating and implementing the agreement presented international law as if it were univocal and universal, as if there were no competing interpretations within the discipline, and as if it were neutral in relation to local political discussions. Building upon this analysis, the goal is to shed light upon the ideological uses of international law.
The special jurisdiction for peace in Colombia: possible International conflicts of jurisdiction
Revista Jurídicas, 2020
This research discusses the issues of the Special Jurisdiction for Peace in Colombia regarding its international jurisdiction. Subject matter jurisdiction, personal jurisdiction, and applicable law to its proceedings will be discussed in order to identify the scenarios where the SJP could come across a forum conflict. Thus, the scope of jurisdiction of the International Criminal Court (ICC), the application of the complementary principle, amnesty recognition in foreign forums, universal jurisdiction, and extradition will be studied vis-à-vis the SJP. More importantly, this paper will help to understand the relation between the SJP and foreign forums regarding res judicata and judgment recognition. The principal objective of this paper is to identify in which scenarios the SJP would come across with an international conflict of jurisdiction. Methodologically, this research draws on both theoretical and analytical methods. It refers to both domestic and international law, and case-law to determine the applicable legal framework to the SJP. By the same token, it analyzes in which scenarios conflicts of jurisdiction issues would arise and how these issues could undermine SJP’s effectiveness. In short, this paper concludes that the SJP has overlapping jurisdiction with the ICC. Likewise, it draws upon the idea that foreign governments could instate parallel proceeding should they find that amnesty and pardon in Colombia are not grounds for dismissing criminal charges or civil liability lawsuits in their own jurisdiction.
The results of the plebiscite suggest that Colombia's international obligations regarding the right to justice will be a key issue in the new postplebiscite phase of the peace negotiation. Perhaps, then, the best starting point for an analysis of these obligations is the rejected Peace Accord. If it complies with international obligations, then it seems likely that any new agreement will also be in compliance: opponents focused much of their arguments on the high level of impunity supposedly embedded in the original deal. The original agreement established a " Special Jurisdiction for Peace. " This jurisdiction was to be charged with judging those who bear most responsibility for crimes that constitute serious violations of international human rights law and for grave breaches of international humanitarian law that were committed during an armed conflict that has affected the country for more than sixty years. However, the Special Jurisdiction would have authority to prioritize both the most responsible perpetrators and the most serious crimes. In other words, not all crimes or actors would be prosecuted. Further, even those convicted for the most serious crimes would be eligible for alternative punishments, including the deprivation of liberty without imprisonment. 1 The most common argument against this selection tool is that it generates impunity and, thus, goes against the state's international obligation to investigate, judge, and punish, especially as established in the jurisprudence of the Inter-American Court of Human Rights (" the Court "). Against this view, I argue that (i) this system of selection would be found to be in compliance with the American Convention on Human Rights under the conventionality control test 2 as practiced by the Inter-American Court; and (ii) the organs of the Inter-American System should show deference both in undertaking an abstract review of Colombia's transitional system, and in reviewing individual petitions claiming that its application violates their rights.
Colombia's Victims Law and the Liability of Corporations for Human Rights Violations
In 2011, after four years of lobbying and political wrangling, Colombia approved Law 1448, commonly known as the Victims Law. Its aims are broad: to be the comprehensive body of law to address civilian population claims related to the armed conflict, and therefore to include the necessary legal reforms to restore the rule of law through the enforcement of victims’ rights. Currently, government, civil society and scholars are focused on the major issues of the Law, specifically land restitution and assistance for victims. However, this new body of Law, with its 208 provisions, is broader than that, and a close review of its articles is urgently needed. One little-studied and apparently forgotten provision is Article 46, which appears to put in place a specific directive to enhance the prosecution of juridical persons for violations of human rights and international humanitarian law in the context of the Colombian armed conflict. However, a thorough analysis of its wording and history reveals that Article 46 is incapable of establishing links between businesses and human rights and humanitarian law violations in Colombia. This article specifically examines the scope and shortcomings of Article 46, and sets forth some possible solutions that require further investigation to fill the lacuna that already exist in the country in this subject.
2018
The subject of this paper is the post-national nature of transitional justice that manifests itself in the case of the Special Jurisdiction for Peace (SJP) in Colombia and, more precisely, the way in which this jurisdiction is linked to legal systems, such as the International Humanitarian Law, International Law of Human Rights, and International Criminal Law, that raises the need to understand this expression of justice beyond the context of State sovereignty, and from the broader vision of the progressive internationalization of constitutional law. The thesis is that both the way in which this form of justice is created and its rules of composition, operation, procedure, and especially the substantive rules that are to be applied by judges and prosecutors in this system, forces us to rethink the rigidity of the traditional system of sources of law, in favor of a more dynamic and pluralist understanding of justice, which coincides with the concept of post-nationality conceptualized by the political philosopher Jürgen Habermas and later developed by international jurists such as Nico Krisch.