JURIST Senior Editor Kimberly Bennett, University of Pittsburgh School of Law Class of 2014, posits that human rights violations taking place in rural, economically disadvantaged communities are most likely to be reconciled through the harmonization of corporations and the locality they inhabit… (Her opinions are not intended to represent those of JURIST)

Despite the arguable success in cracking down on perpetrators of human rights violations through international human rights institutions such as the International Criminal Court (ICC), the international community has overall failed to protect the rights of workers affected by corporations. Most international enforcement instruments are not legally binding; however, the implementation and development of international human rights laws have been recognized as a political obligation. Enforcement of human rights norms (universally accepted basic principles) should also occur at the local level, as well as the regional and international level.

The expansion of the international market has increased the need for closer attention to labor practices in countries with which we trade. In recent years, US and European demand for biofuels has expanded the sugarcane industry. Seen as a green replacement for petroleum, international bodies such as the World Bank and the International Monetary Fund (IMF) are investing in projects to expand the production of sugarcane with hopes of developing an ethanol market worldwide. The impact of this expansion has created social and public health issues, particularly in the Central American region, where sugarcane grows abundantly.

In the small community of La Isla (informally known as the “Island of Widows”) in the province of Chichigalpa, Nicaragua, 70 percent of men and 30 percent of women have Chronic Kidney Disease (CKD). Though CKD affects people worldwide and has been declared a public health problem, it is most striking in La Isla. There, the typical epidemiological factors of CKD such as diabetes and arterial hypertension do not seem to be the leading cause of the disease. Instead, in Central America, differences exist in the epidemiology of this illness. The majority of people stricken with the illness live at sea level altitude are men younger than 40 years old and with no prior history of diabetes or hypertension. In these regions, CKD highlights social issues relating to the conditions of working in a nation where the majority of the money is held in the hands of a large corporation. Roughly 81 percent of the residents of La Isla live in extreme poverty on less than $1 a day, having minimal choices for employment but the sugarcane fields. The reality of these conditions begs the question of how to reconcile corporate liability with development.

Almost all of the men with CKD are current or former employees of the large sugar-cane plantation and mill nearby owned by the Ingenio San Antonio (ISA). ISA is one of the oldest businesses in Nicaragua and it exported roughly 331,000 metric tons of sugar for consumers and ethanol for the production of biofuels in 2012. Sugar is cut, processed, and packaged onsite, and is also used to make rum sold under the brand name Flor de Caña. In 2011, ISA produced 10,000,000 liters of ethanol for export to the US in 2012, with additional exports to Europe. ISA is the only sugar mill in Nicaragua that has an ethanol facility.

Trade agreements with quotas have increased the pressure for companies to produce. On January 1, 1994, the governments of Canada, Mexico and the US signed the North American Free Trade Agreement (NAFTA), creating a free trade zone between the three nations. US President George W. Bush signed the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) on August 2, 2005 to create a similar free trade zone between the US, the Dominican Republic, Costa Rica, El Salvador, Guatemala, Nicaragua and Honduras. Both agreements ended tariffs against US products in the countries that were parties to the agreement and ensure those same countries duty-free access to the US.

Though Nicaragua has its own labor code, the international arena also ought to act as an enforcement mechanism through international trade agreements, human rights treaties and World Bank policies (after ISA received funding from the IMF). The real problem, however, lies in the failure to have included labor standards in trade agreements.

It is an important aspect of the CAFTA-DR that the US and Nicaragua are both members of the International Labour Organization (ILO). The ILO is made-up of a group of constituents (governments, employers and workers) that develop legal standards and legal tools, as well as setting out basic principles and rights. Conventions are legally binding international treaties, which, if ratified, enter into force one year after ratification (countries commit themselves to applying the convention into national law). Nicaragua has ratified 60 conventions; 55 of them are currently in force. Of the conventions in force, Nicaragua has ratified all eight fundamental conventions, which include abolishing child labor and guaranteeing the right to freely associate and organize. Nicaragua has also ratified conventions for workmen’s compensation for agricultural and industrial work. Representation and complaint procedures can be initiated against countries for violations of these conventions.

Sanctions under CAFTA-DR labor provisions are authorized only for “failure to effectively enforce one’s own labor laws through a sustained or recurring course of action or inaction in a manner affecting trade between the Parties.” This makes for an interesting and complex relationship because Chapter 16 of the agreement reaffirms each party’s commitment to their obligations as members of the ILO; however, CAFTA does not require that countries’ domestic labor laws comply with basic international norms that have been established by the UN and the ILO conventions. Instead, the accord merely recommends that CAFTA parties “strive to ensure” such compliance and that they not “encourage trade or investment by weakening or reducing the protections afforded in domestic labor laws.” A party violating these provisions faces no meaningful consequences because the accord does not contemplate the possibility of fines or sanctions for such violations.

Lastly, the Alien Tort Statute (ATS), which states that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States,” may be used for corporate liability, pending a decision from the US Supreme Court. On March 5, 2012, the US Supreme Court announced that they would rehear arguments in Kiobel v. Royal Dutch Petroleum, a case dealing with corporate liability for human rights violations occurring overseas. The Court addressed the question:

Whether and under what circumstances the Alien Tort Statute … allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

If the Court rules that ATS is both constitutional and appropriate for holding corporations accountable, it may become an important enforcement mechanism.

As both international law and US law stand right now, there is hardly corporate liability. Nicaraguan domestic law is in accordance with all ratified human rights accords and trade agreements, yet workers in La Isla continue to suffer. Minors under the age of 18 continue to be hired by subcontractors, social security continues to be withheld and unions remain powerless. Despite the blatant disregard of the Nicaraguan Labor Code, these violations continue without remedy and international law seemingly offers no recourse.

Thus, the only way in which the human rights violations taking place in La Isla (or any other impoverished area with a large corporate presence) can be redressed is through better domestic remedies and enhanced corporate liability. Due to the lack of international enforcement mechanisms, corporations must be regulated by their home states. In a country as impoverished as Nicaragua, however, this seems to be unrealistic. Therefore, corporations operating in developing countries must improve institutional frameworks for self-regulation. In the international arena, however, institutions must enforce minimum human rights standards in regulating the obligations of corporations.

As seen with the Chiquita Brands International case, public pressure can be one of the most important tools in this regard. If the law will not help the victims of human rights violations, consumer pressure might.

Kimberly Bennett is a Senior Editor for JURIST’s Social Media, This Day at Law and Features services. She is the President of the JURIST Student Staff Association and serves on JURIST’s Editorial Board. Bennett holds an undergraduate degree in Spanish and Political Science, and a Certificate in Latin American Studies from the University of Pittsburgh. She is studying international human rights and civil rights law at the University of Pittsburgh School of Law.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Kimberly Bennett, The Local and International Plight of Workers’ Rights in Nicaragua, JURIST – Dateline, July 3, 2012, http://jurist.org/dateline/2012/07/kimberly-bennett-nicaragua-labor.php.