Human Rights
and Corporations*
Legal Responsibility of
Corporations for Human Rights Abuses in Argentina
by Romina Picolotti** and Juan
M. Picolotti***
translated by Maria-Candela Conforti
Acknowledgments
The authors wish to thank David Petrasek,
Jorge Daniel Taillant, Nazareno Picolotti, Patricio Monfarrell, Gustavo
Vallespinos, and Maria Candela Conforti, for their collaboration in the
preparation of this report, and the staff of the National Library of the
University of Córdoba for their research assistance. Without their help the
completion of this report would not have been possible.
Structure of the Report [i]
The report is organized as follows: Section I defines the objectives and framework of the paper; Section II describes the research methodology, Section III presents preliminary notes/considerations in order to identify the terminology used to address the subject matter of this report, Section IV is the central analytical portion of the paper; Section V is the conclusion; finally, Section VI describes future research works in different legal areas.
I. Introduction
This work centers about specific legal obstacles preventing individuals, victims of human rights abuses, from bringing action against corporations responsible for these abuses, and obtaining remedy for the damage caused.
The first issue of important consideration is the recognition of corporations as passive subjects that can be responsible for human rights violations. Such a consideration is in fact quite a delicate matter that has only been recognized by some nations towards the latter end of this century. This is in part driven by the large importance corporations have come to play in our society. Today, corporations are extremely influential actors in the international arena, transgressing national boundaries and often falling between the cracks of traditional formal national structures. Their indisputable importance to local economies as providers of employment and motors of economic growth, often place corporations in more powerful political positions than that of the states in which they conduct business.[ii] Corporations can often negotiate specialized treatment from national and local governments, which are many times willing to ignore local laws, and/or bend regulations to entice corporations to locate in their territory.
Yet most developing country societies consider large and multinational corporations as fundamental actors to foster local economic growth. The international consensus on “structural adjustment” reached in the 1987 VII United Nations Conference on Business and Development[iii] stressed the imperative need for investments in developing countries, and large corporations are usually the most naturally suited economic actors disposing of the large investments needed to foster economic expansion. Unsurprisingly, we see the widespread proliferation of corporations in developing countries, the activities of which are not often rightfully regulated or controlled by existing legislation.
This report analyses the current legal framework in which corporations’ activities and their subsequent impact on human rights are regulated in Argentina. The paper is not intended to be exhaustive on the matter, but rather it aims to foster awareness, discussion, and development of deeper and more in-depth research work on the topic. [iv]
The paper reviews consumer laws from various angles, including procedure, contracts, constitutional rights, labor laws, environment, criminal law, and civil law.
The following methodologies were used in the preparation of this work:
· Academic/Doctrinary Research
· Legislative Research
· Jurisprudence Research
· Field Research
In the initial phase of this research work, two basic questions were formulated:
a) What is the definition of a “corporation”?
b) In what way can a corporation violate human rights?
The first question leads to our first obstacle. The term “corporation” is not always clear, and can lead to various interpretations, however, in this report, we will use the following definition cited in Webster’s Encyclopedic Unabridged, … “an association of individuals, created by law or under authority of law, having a continuous existence independent of the existences of its members and powers and liabilities distinct from those of its members”. This definition begins to focus on some of the issues we will cover in this paper, namely, the powers and liabilities of the corporation.
In response to the second question, In what way can a corporation violate human rights?, we must reflect on the nature of corporations. In society, all members of the society have rights and duties. Corporations, as a member of society, have hence, rights as well as duties. It is important to note that the legal recognition of human rights translates the duties of members of society into legal duties. Consequently, as regards human rights, corporations have legal duties, each of which has a corresponding human right.[v]
Hence, if there is a human right to equality, corporations have the legal duty of respecting that human right; for instance, ensuring non-discrimination in the hiring process. If a corporation discriminates against women at the moment of requiring their services, the corporation can be said to have violated a basic human right.
As regards the case of Argentina, those human rights treaties ratified by Argentina have been incorporated into local legislation by assigning them Constitutional Status, generating to the State, individuals, and corporations the corresponding legal duties guaranteeing and fostering those rights.
We can conclude, then, that in Argentina:
a) Human rights have been legislatively recognized,
b) Human rights result in legal duties for corporations, and
c) Corporations may violate human rights through their actions.
We will focus our study on the legal framework in which human rights abuses of corporations are regulated and the legal obstacles faced by victims to obtain legal remedy for human rights violations perpetrated by corporations.
A.
Law of
Procedure and the Corporation: Access to Jurisdiction, Litigation Costs against
corporations for Human Rights Abuses
The right to access to jurisdiction becomes relevant when considering the legal responsibility of corporations for human rights abuses and when mandating an adequate remedy for the victim in due time and course. Thus, the right to access to jurisdiction is not confined strictly to the formal right to jurisdictional services. It is the human right of access to justice. On that account, the Argentine National Constitution refers to free, non-restricted and equal access to justice.
We find a first and primary obstacle in Argentina, with respect to the cost of accessing jurisdiction. The costs of access to jurisdiction in Argentina vary from 3% to a 7% of the total amount of claims. In a hypothetical, and not unlikely example, if we estimate the cost of the damage caused in a case of human rights abuses as US$500,000 and the corporation causing the damage is sued for this amount, the victim must spend approximately US$15,000 to US$35,000, to access jurisdiction, this excludes corresponding legal fees. This is relatively a large amount representing up to 4 times the yearly income of most Argentines and will not likely be available to most individuals at any given time. [vi] What happens then to the victim of human rights violations perpetrated by corporations that does not have such financial resources to litigate against human rights abuses?
Within national legislation the free, non-restricted, and equal access to justice is lawfully secured by means of the right to proceed without liability for court fees or costs[vii]. Such benefit is established in the National Code of Civil and Commercial Procedure[viii] as well as in different provincial codes; and implies a provisional exemption[ix] from legal costs of the party that is not able to bear accruing costs. The principle aim, therefore, of such laws, is to remove the economic obstacles specifically relevant to actors not able to bear legal costs. These shall be assisted in his or her right to access to jurisdiction.
Yet, how does this situation play out in the Argentine judicial arena? We will now analyze the formal characteristic of this right, and not its substantive content, since we understand that it is its formality that constitutes the main legal obstacle to exercise this right in litigation against corporations for human rights abuses.
The formal requirements to be granted with the right to proceed without liability for Court costs are:
a) The allegation of facts stating the legal bases for the need to access jurisdiction
b) The presentation of the process to be initiated
c) Sufficient evidence to prove the inability of the plaintiff to bear the costs of access to jurisdiction
d) The burden of proof falls on the party who claims the right; therefore, the soliciting party shall produce all of the evidence
e) If witnesses are presented, the questionnaire shall be annexed to the petition.
In Argentina exercising the right to proceed without liability for court costs and fees constitutes a separate (or additional) legal procedure from the main trial in which the victim sues a corporation for human rights abuses, the petitioner must initiate a second or parallel trial in order to be granted the right to proceed without liability for court costs. This high degree of complexity with parallel proceedings undoubtedly requires professional legal assistance. Meanwhile, the court 's decision to grant the right to a free trial may be appealed by the opposing party. To further obstaclize the process, a request for a free trial, in practice, can be delayed for a year or more. What happens hence, with the main trial during that period; i.e., with the action brought against the corporation for human rights abuses? Proceedings initiated in order to grant the right to wave liability for costs do not result in automatic suspension of the main proceedings. However, upon request of the petitioner, the court may decide to suspend the main trail process until it reaches a decision on the request for the wave of liability. In practice, the petitioner most often requests the court to suspend the trial against the corporation until the right to proceed without liability for court costs is granted so as to avoid bearing the financial costs that the access to jurisdiction represents in case that the right to proceed without liability for costs is denied.
We believe that the high complexity in the mechanism to grant the right to proceed without liability for costs, encompasses a serious legal obstacle to litigate against corporations for human right abuses. Trials are unduly extended and made more complex than necessary. The excessive formalities in the process, make it inadequate to fulfill its real purpose: that is, to assure a free, non-restricted and equal access to justice.
We now turn to precedent setting cases to shed light on the complexity of proceedings to grant the right to wave liability for court costs. The two following examples are actual court sentences.
In order to be granted the right to proceed without liability for costs, the petitioner shall prove not only his lack of financial resources to bear the court costs but primarily his inability to obtain them, including among others, unsuccessful attempts to obtain financial assistance to litigate. Otherwise, the above-mentioned right shall be denied. Fed N.C. Civil y Com., room I, Julio 13-999. - Ambulancias Doc. S.R.L.y Otro c/Instituto Nac. de Servicios Sociales para Jub. Y Pensionados, Rev. Law 19/10/99, p.7, Judgment 41.970-S.
Even though the right to proceed without liability for costs can be required at any stage of the legal process, it does not imply that the soliciting party remains exempt from paying his or her debt previously incurred. Any declaration of indigence put forth prior to the request of the right is not nullifying, since such a declaration should have been presented in due time; all the more, if such situation was previous to the initiation of the main cause. Judgment 73.673, Santiago vs. Canteros Jorge y Otros.
B. Consumer Rights and the Corporation, Law 24.240:
Poised to protect consumers or corporations?
Norberto Bobbio has wisely remarked that the ethical concept of democracy is centered on the individual's autonomy; however today we find ourselves in a massive society where individuals are heterogeneously conducted.[x] In this telecommunications era, the consumer is the individual heterogeneously conducted by antonomasia. Consumer rights aspire to replace a reality in which the individual is conducted heterogeneously by corporations, by a reality in which the individual is conducted heterogeneously by law. Consumer rights, hence, aim at enlarging the scope of protection of individuals against corporate abuses, not only strengthening human rights in face of corporative abuse, but widening the scope of protection of human rights to include such rights as the right to privacy, the right to physical integrity, the right to access to information, the right to participation, the right to property, and so forth.
In Argentina Consumer Rights are recognized by law 24.240, decree 2089/93, and amendment of law 24.999. Although we will not make an exhaustive analysis of these laws, we will review some of these precepts of law that in our view diminish the scope and degree of consumer protection against human rights violations perpetrated by corporations.
i.
Consumer Rights:
Who is
legally liable?
We use a hypothetical example to refer to liability for damages. Mary goes to the supermarket to buy a bottle of milk; once home she serves a cup of milk to each of her children, who after drinking the milk have serious health problems due to the fact that the product was not apt for consumption. Who is legally responsible for the serious damage caused?
a) Consumer Protection Bill
Article 40 of the Consumer Protection Bill states that in case of any damage incurred to the purchaser or third party that result from a defective product; the producer, manufacturer, importer, supplier, merchant or any party having placed its brand on the product or service offered, are jointly and severally liable for the damages resulting from the use of the product. Only parties that demonstrate no linkage to the causes of the damages are totally or partially exempt from responsibility. This norm constitutes a major development in Argentine law on this matter, resolving many years of doctrinary discussion about which party is to bear contractual and extra-contractual responsibilities. In practice, this legal gap allowed large corporations, industries and other intermediaries to respond solely on extra-contractual ground. The only contractual responsible party was the merchant, since the merchant was the only party dealing directly with the consumer. The reader can appreciate the severe legal obstacle implied by these unclear limits in liability for damages, which left the consumer entirely unprotected, or vastly limited in his or her ability to obtain adequate retribution. Such legal and material aberration was eliminated by the application of the above-mentioned bill. As defined in Article 40 of this bill, it is the producer, manufacturer, importer, supplier, merchant or brand dealer who shall jointly respond without distinction of any kind.
b) The presidential veto:
decree 2089/93
Although this comprehensive legislative bill, mirroring most western developed modern systems of consumer protection, seems appropriate for our purpose of defending consumers against corporative abuse, it has been partially vetoed by the Executive Power, rendering it much weaker from the Consumer’s perspective. This veto involves the elimination of Article 40, and the consequent denaturalization of the law, since it eliminates joint responsibility, which is precisely where the law was most protective of the consumer.
Hereunder are the legal arguments of the Article 40 presidential veto:
The veto of Article 40 of Act 24.240, denotes the permanence of the status quo concerning the matter of liability for damages, as wisely expressed by the jurist Zannoni:
…[the veto of article 40] confines the law, in many aspects, to the role of a legal norm of which it holds only a semblance, since the non-fulfillment of certain duties established in its content do not confer correlative responsibilities… This status quo, renders law 24.240 an insufficient instrument. This law is not abreast of the times, as it does not satisfy the directives consumer rights.[xiii]
c) Current Situation: Law
24.999
Such deficiency of the consumer law prolonged the defenselessness of Argentine consumers until June 1998, when as a result of great efforts by civil society actors, law 24.999 was implemented, amending law 24.240, and incorporating the mutilated Article 40, the text of which is as follows:
If the damage incurred to the consumer results from the defect or risk of the product or the service provided; the producer, manufacturer, importer, supplier, merchant or any brand dealer of goods or facilities, are jointly and severally liable for the damages caused. The carrier shall bear the costs of damages resulting from the product or services offered. Therefore, there is joint responsibility. Only parties that demonstrate no linkage to the causes, are totally or partially exempt from responsibility. (emphasis added)
In principle,
hence, with this new Article, an era of impunity and irresponsibility on the
part of corporations comes to an end. However, despite this important advance,
the law once again turns on itself, and the final sentence of the new Article
introduces the possibility of exoneration of liability on the part of the
corporations to have to prove that the damage caused was not its fault. In this
matter, the law distorts the binding nature of the first part of the text. The
following jurisprudential case clearly illustrates the point:
While opening a softdrink
bottle, the consumer of a product of a Multinational Softdrink Corporation,
receives a violent impact of the top of the bottle on his eye; resulting in
partial permanent blindness. Considering himself the victim of recoverable and
remunerable damage, originated from an excessive charge of carbonated water in
the bottle of the softdrink he consumed, he brought action against the original
brand name multinational corporation, which is the manufacturer of the original
product-syrup. The defendant (the multinational corporation) argued against the
complaint, stating the lack of passive legitimacy, understanding that the
responsibility is, in the best of cases, of the actor that bottled the product,
and not the actor that prepared the syrup. In other words, there is not enough
evidence to prove that the causality of the damage is linked to the
multinational corporation's activities. The argument further states that many
bottling companies or manufacturing corporations exist in the country which
handle production and distribution of the final product.
We ask ourselves, hence, if the drafting of Article 40 allows for the exemption of the corporation’s liability if it proves that the damage caused was not its fault, even though its participation in the production process is evident? In the event the manufacturing corporation of the beverage had not participated in the bottling process, does this exempt its liability for the damage caused to the consumer? Or is there responsibility in eligendo?[xiv]
Provided we apply Article 40 in a literal sense, the manufacturer of
said beverage would be totally exempted from liability in the case. In
practice, this implies that, once again, the consumer is limited to claim
against the merchant of the product, since the remaining responsible parties
named in the Article- the manufacturer, supplier, etc.- can be totally exempted
from liability pleading that the cause of the damage is foreign to them.
ii. The Structural
Typology of Contracts pursuant to Law 24.240
A second legal obstacle implied by this law appears in the typology of the contract, since it alludes only to those of onerous nature, excluding free promotional samples by virtue of the absence of an onerous character; for instance, gifts of personal things including foods, pharmaceuticals, etc.. In light of rigorous competition existing among corporations, and the common practice of extending gifts and sample items to potential or effective consumers, this leaves an important consumer sector outside regulations, exacerbating the defenselessness of the consumer.
iii. The Exclusion of
Second Hand Items
Further, second hand items are
also excluded by the law, when these result from a legal contractual relation
among consumers, pursuant to law 24.220. Assume Mary buys a used car from a
person who is not normally a car salesman. If the car has any vice or defect,
law 24.240 does not protect Mary.
iv. Abusive Clauses and Concessional
Contracts of Public Services.
Articles
37 and 39 of the consumer rights law refer to the fact that when there are one
or more abusive clauses in a given contract, those clauses would be void and if
there is any doubt concerning the meaning of the content of a given clause,
said clause shall be interpreted in favor of the consumer.
Even
though, in this case, it would seem that the law adequately protects the
consumer against abusive clauses, there exists a series of legal contradictions
between said clauses and concessional contracts of public services. At present,
in Argentina many public services have been granted to private corporations
through public biddings.
Once a
corporation is awarded a concession, it is bound by two types of contracting,
with the State on the one hand, and with the consumer of the service on the
other. The contract that binds the corporation with the state constitutes a
regulation establishing the rights and obligations of each of the parties. This
regulation encompasses an adhesion contract through which the State and
corporation define the relationship that will exist between concessionary (the
corporation) and the consumer.
It is
precisely in these regulations, and subsequently in these adhesion contracts,
that we find abusive clauses.
We can
take as an example the case of the Telephone Service Regulation that
establishes the relationship between consumers and the corporation offering
fixed and mobile telephone services. In this case, we can clearly observe the
use of such clauses, as follows:
Art. 14 states: When the client receives more than one
service at one address, and has one of his/her services suspended for failure
to pay, the provider of the service can:
a)
suspend or cancel services
for which payments are past due, or
b)
intimidate the client through
legal means to pay the past due amounts after 60 days have transpired since the
due date of the first payment, or face the definitive cancellation of said
service, and the suspension of other services, even though these may have been
paid in full. The services suspended will remain in suspension until the client
cancels his/her total debt plus any corresponding late fees, or will be
permanently cancelled pursuant to art. 12. (emphasis added)
c)
Art. 27 states: The client
holds the right to receive information concerning billing details from the
provider, but only based on the provider’s technical capacity to provide it. When
technically possible, a printed detailed bill will be provided. If the
consumer requests proof of the proper functioning of the meter, the consumer
will bear the cost of the verification, to be determined by the competent
authority. (emphasis added)
Such
cases illustrate the multiple abusive clauses found in telephone service
regulations. The same commonly occurs with regulations of electricity, natural
gas, water, and other services. We believe that such dispositions are a matter
of great concern. The State (which drafts and subsequently subscribes to these
contracts) should prohibit these types of clauses as they are adverse to the
common good and contradict above-mentioned articles 37 and 39. It is imperative
to stress the inconsistency between said norms, and the existence of such
abusive clauses, which cast doubt on the effectiveness of the consumer rights
law.
In
conclusion on abusive clauses, an eventual amendment of this law, which would
effectively protect the consumer, must consider that most business is conducted
through adhesion contracts, where corporations have inequitable taxing power
with respect to the consumer. Only legislation can defend the rights of the
weaker party, in this case, clearly the consumer. For this reason, the role of
the State must be differentiated from groups of economic interest, especially
when the State tends to delegate or concession more and more (traditionally
state-provided) services of great public interest.
v. Jurisprudence
We now give several example of relevant cases ruled by Argentine jurisprudence concerning Consumer Rights.
Ryan Tuccillo vs. Cencosud
S.A.
The lower court
judgment rejects the complaint brought by a victim due to an injury as a result
of opening a softdrink bottle taken from a supermarket stand. The plaintiff
brings action against the supermarket and the bottling company. The legal
grounds of the rejection in the lower court was principally due to the failure
of the plaintiff to identify the legitimate defendant (the directly liable
party). (Ryan Tuccillo c/Cencosud S.A.” National Civil Court, Room H, March 26,
1997).
On the 5th of April 1986, while opening a two-liter disposable softdrink bottle by removing the top and its security ring, an explosion occurred causing the top to impact the right eye of the consumer, resulting in partial permanent blindness. The lower court rejected the complaint based on the reasoning that even though it is true that the consumer must be protected against production standards, it is no less true that liability for quality of manufactured products are not beyond the general principles of law. It is necessary to identify the actor liable for the damage caused, which was not proved by the plaintiff, since he did not bring the bottle that produced the accident, nor did he identify the supplier. For these reasons, it is impossible to certify which is the imputable factor which caused the damage, either by direct fault of the defendant or otherwise. Wherefore the complaint was rejected. (G., E. S. c/Empresa Multinacional de Gaseosas s/Daños y Perjuicios”, 24-05-90).
In
order to enable the application of the consumer law, it is insufficient to
argue the weaker position of the consumer in the contractual relationship of an
adhesion contract. Galante José L. vs. Argentine Credit Bank. National
Chamber of Commerce, room A,29- 05-99. Rev. Law
14/10/99, p.6, judgment 99.426 – DJ, 1999-3-700; (Adla, LIII-D, 4125).
C.
Constitutional Law and Corporations.
i.
The Amparo (Action of
Protection)[xv] before
Corporations for Human Rights Violations[xvi]
One of
the most important legal instruments available to the consumer to thwart human
rights violations by corporations is the amparo[xvii],
recognized in article 43 of the National
Constitution.[xviii] The amparo
is an extraordinary action that the Court shall admit when a physical or legal
person illegally or arbitrarily restricts, alters or presently or imminently
threatens, the rights recognized by the National Constitution, international
treaties,[xix] or common laws.
Therefore, when the rights of persons are threatened or
violated by actions of public or private persons, the right to obtain immediate
judicial protection is constituted. The amparo hence, becomes the
legal instrument, by excellence, to prevent human rights abuses perpetrated by
corporations.
While in legal theory this is so, we must examine
whether or not in practice, the filing of an amparo truly results in the
prevention of human rights abuses by corporations.
To answer this question, we will analyze the amparo
procedure.[xx] Considering that
the aim of the amparo is to avoid imminent and irreparable damages, it
is an accelerated summary proceeding.[xxi]
Correspondingly,
the law enables the actor to request precautionary measures in the proceedings
pursuant to the amparo, for instance, the non-innovation measure, so as
to avoid that the final judgment not be illusory. In the case of violations of
human rights abuses perpetrated by corporations, the importance of the
expediency of the procedure and the granting of the measure must be stressed.
Nonetheless,
the same law granting accelerated summary character to the proceeding, works
against the plaintiff (in favor of the corporation) when referring to the
appeals process.[xxii] The legal
obstacle herein is constituted by the suspension of the amparo resulting from
the appeal on the non-innovative measure. For example, in the case of an
indigenous community whose rights are violated by the incursion on their
territory by a corporation intending to construct on the territory, while the
community may successfully file a non-innovative measure within an amparo,
the corporation need only appeal the decision of the judge, and the measure of
non-innovation is suspended, giving the corporation the right to proceed with
the construction until the court of appeals decides on the appeal.[xxiii]
The
execution of the judgment of the amparo is, hence, subordinate to the
consent of the defendant or to cases in which the defendant appeals the
judgment to the Court of Appeals.[xxiv]
The suspended effect of the mentioned appeals procedure is so absurd as to void
the content of the amparo.[xxv]
In
practice, hence, the amparo is in fact, a desertion, i.e. quite the
opposite of its intended nature for the plaintiff in face of violations
perpetrated by the corporation.[xxvi]
We believe, along with the majority of the doctrine, that this law must be
reexamined[xxvii] in favor
of a normative that does not debilitate the amparo, but rather
strengthens it, taking into account that the legal principle behind the amparo
is to be an immediate summary proceeding, so as to guarantee immediate
execution.
D. Labor Law
and Corporations
i. Corporation’s Legal Liability for
Occupational Hazards.
Dated
October 3, 1995, the new system of Occupational Hazards was promulgated.[xxviii]
The new law presents innumerable characteristics leaving the worker without
integral, serious, and effective protection[xxix],
while guaranteeing the corporation a reduced economic cost for the death or
disability of one of its workers.
a)
Defenselessness derived from normative ignorance
The new law generated several legal gaps,
that while covered by complementary norms and regulations, the monitoring of
the law is especially difficult. We can mention, for example, that until 1997,
there were 50 complementary norms submitted at the national level, in order to cover
(in vain) the legal gaps contained in this law, many of which were not even
published in the official gazette. We consider that the disorderly legislation
in this area, not only constitutes a legal obstacle, but also implies a
violation per se of the worker's human right to access information.
b)
Defenselessness derived from
the sphere of the application of the law
The law exacerbates the worker’s state of
defenselessness before human rights abuses perpetrated by corporations, thus
restricting beneficiaries (marginalized workers), accidents and sickness caused
by the work environment, reparations, and legal action. We will now analyze
each of the restrictions that result in corporative irresponsibility and
failure to assume responsibility for perpetrated human rights violations.
1.
Marginalized
Workers[xxx]
Despite their inclusion in the previous law, the new
law excludes from the system, without cause: volunteer firemen; students of
industrial schools; convicts; and those suffering from Hansen’s disease. Since
the Occupational Hazards Law excludes these individuals, they are not protected
in the event they have an accident while on the job.
2. Work
Accidents and Sickness
The law
reduces the sphere of protection to the foreseen contingencies that are specific
work sicknesses and accidents as selected and listed by the Superintendency of
Occupational Hazards. If the work sickness or accident is not included in the
list, the law does not protect the worker.
In this
manner, the law excludes the following occupational hazards:
·
Events not
resulting from violent or sudden occurrences (for example, gas leakages,
micro-traumatic incidents, or insect bites to a worker in a building demolition
site);
·
“Accidental
sicknesses”, that is those illnesses that do not originate in the worksite, but
are aggravated or accelerated by the work or work environment of the worker;
·
Accidents
caused through deceit of a collaborator
·
Events caused
by non-work-related force majeur
·
Incapacity
of the worker detected before the initiation of work activities appearing in
the pre-occupational health examination
Likewise,
in case of work accidents or sicknesses, the worker’s right to select medical
attention, pharmaceuticals, and funeral services, are restricted, since it is
the Superintendency of Occupational Hazards that defines these. The change of
provider by the worker, for example, can result in the suspension of financial
assistance granted to cover expenses.
3.
Reparations
The worker is not entitled to receive, in a single
payment, the total amount of reparations for the damages caused,[xxxi]
since the law establishes the payment through periodic installments.[xxxii]
These new terms of payment benefit the paying party (corporations and the
insurance company), which instead of disbursing the entire amount in a single
payment, disburse it in smaller installments. The damage to the worker is
evident, since he or she cannot make immediate use of the total amount of the
reparations, complicating, among other things, his or her reinsertion into the
workforce and his or her rehabilitation.
A further legal obstacle is the tariff-scaled
reparations. The law establishes maximum limits with extremely low economic
benefits.[xxxiii] This
situation not only economically benefits the corporation against the worker,
but also distorts the aim of the reparation, since the corporation unduly
profits from the reparation, instead of assuming the cost of preventing the
damage in the first place. In this manner, the law legally promotes the
exploitation of the worker by the corporation, fostering the principle
“exploiter pays”.[xxxiv]
4. Legal Action
The law contains a series of legal obstacles to the
legal action brought by the worker. These are manifest in the civil action’s
absolute restriction, since the worker is prevented from filing civil suit,
which would otherwise permit an integral reparation. By means of this stated
prohibition, the law violates the right to equity, and assigns workers
secondary citizen status, as they do not obtain benefits granted to others, namely
the benefit of exercising the right to civil action.[xxxv]
E. The
Environment and the Corporation
Today more than ever, the world community is realizing the importance of the natural environment to human life and sustainable development. Society's view of artificially induced environmental degradation has graduated from recognizing the harm done to natural resources, to the recognition that the harmful disturbance of our planet's biodiversity directly and negatively impacts human life. While recent international jurisprudence addressing the environment and human rights, has focused on these legal arenas through separate legal frameworks, the linkages between environmental abuses and human rights abuses are evident.
In
Argentina, the irrational use and over-exploitation of natural resources is
advancing at an alarming rate.[xxxvi]
The rapid loss of natural habitats provokes terrible damage to most of the
population whose lives depend exclusively on local natural resources.[xxxvii]
The
contamination of a community's water resources or the intrusion into indigenous
lands resulting from uncontrolled deforestation or by private development, is a
clear example of environmental abuses which are also basic human rights abuses.
Measures to prevent these abuses, protect victims, and penalize those
responsible, constitute an imperious and immediate necessity.
We now
turn to analyze the collective amparo (or collective protection action),
the legal action available to individuals to prevent irreparable environmental
damages caused by corporations. The collective amparo provided in the
National Constitution, is an extension of the individual amparo, with
respect to the affected right and the legitimate and authorized subjects that
may file the amparo.
As
regards the affected right, the collective amparo intends to protect
third generation rights (amongst which environmental right are included), and
with these, so-called diffused interests, but that are assigned to all
of the members of a community. We may ask ourselves, hence, who is entitled to
bring action in these cases?
The
Constitution aims to resolve the problem of identifying the possible plaintiffs
in collective cases, that which is left unclear in the amparo process,
determining that the following actors may bring action for collective amparo:
·
The affected party
·
The ombudsman, and
·
Those associations which
tend toward these ends (as registered under the requisites and formalities of
organizations mandated by law)
Although
the collective amparo implies a great advance in environmental matters
(since if the amparo is granted by the Court the damage caused is
temporarily stopped until the Court decides on the reasons of the conflict),[xxxviii]
in practice, several obstacles appear in the process deriving principally from
conservative legal interpretation and from lack of legal custom.
For
example, there are problems of interpretation as regards the identification of
the plaintiff, visible in jurisprudence that has rejected the following
arguments.
·
The complaint is rejected for
failing to present a directly interested party (restrictive interpretation of
the affected party)
·
The plaintiff (a certain
organization) was denied as such for not having the specific aim of protecting
the environment.
·
The Court insists on the
proof of a violation of an individual right. It is not sufficient to
demonstrate a diffused (collective) interest, as the base of the complaint, but
rather one must prove the violation of a subjective right.
We can
add to these obstacles of conservative legal interpretation, the lack of
customary exigency of rights that protect the environment through legal means.
The victims of such abuses generally use other complaint strategies, such as
public demonstrations, denunciations through mass media, or pressure campaigns.
The choice of a non-judicial channel, is due mostly to the great lack of trust
of the effectiveness of the Judicial Power and its assistants, namely, its
attorneys to render justice in a timely, transparent and efficient manner.
F. Criminal Law and the Corporation
Argentine
Criminal Law is framed by the principle of societas
delinquere non potest[xxxix],
that is that the legal person cannot be the author of a crime, even though a
corporation may have other non-criminal responsibilities.[xl]
This principle effectively excludes the corporation from the arena of criminal
law.
However,
we might alternatively view corporate criminality from the optic of
environmental legislation. Recently, ecological crime has appeared as a new
concept in criminal law,[xli]
consisting of any detriment to the right of conservation of quality of life. In
sum, this is any environmental degradation of the ecosystem.[xlii]
The
question is if ecological crime exists when a corporation contaminates a water
source, the atmosphere, or the earth, etc.. Unfortunately in Argentina there is
no specific norm that typifies ecological crime[xliii],
due to which it is impossible to attribute criminal responsibility for the
commission of a crime.
To this
impossibility we can add the tendency towards the principle "contaminator
pays", fostering in practice that the corporation prefers paying a
sanction for an environmental contamination, rather than preventing
contamination, since the former is generally more cost-beneficial. It is
important to highlight the legislative experience in Peru in this arena, since
Peruvian Environmental and Natural Resources Code adds prison sentences to
common sanctions (fines, closures, suspension, etc.).[xliv]
In
brief, if Argentine legislation contemplates a prison sentence for the
commitment of a crime against individual property, it should sanction more
severe punishment for damages caused to collective patrimony. While Argentina
is confronted with a great environmental risk, and hence responsibility, the
traditional penalties established by law are insufficient to bear the costs of
the severe damages caused by the present state of environmental degradation.
Argentine criminal legislation, hence, integrally protects the right to
individual property; however, what is needed is a law which specifically aims
to protect the environment, and that when the environment is damaged, it be
treated as ecological crime, and consequently result in a severe prison
sentence for the responsible parties.
As a final observation, we can point to the lack of criminal
responsibility on behalf of corporations for failing to meet the required
health and security standards in the workplace, resulting in hazards and on the
job accidents of workers.