Swiss National Contact Point calls on Glencore to carry out due diligence at its Cerrejón Coal mine
The OECD National Contact Point (NCP) in Switzerland published its Final Statement in the Complaint against Glencore which was filed by GLAN, CAJAR, AIDA, CINEP, Ask! ABColombia and Christian Aid Ireland. Our Complaint detailed serious human rights abuses and devastating environmental pollution at the Cerrejón coal mine in Colombia. The NCP recommended that Glencore, as the sole owner of the Cerrejón mine, ensure "that its policies and due diligence measures foster a responsible business conduct at Cerrejón.” To this end, it called on the company to engage in dialogue with NGOs and representatives of the Wayúu and Afro-Colombian communities affected by the mine's operations in Colombia. The NCP also noted that "the Australian and UK NCPs will, according to their rules of procedure, publish Final Statements regarding BHP and Anglo American respectively".
However, we consider that the NCP did not go far enough. The NCP’s recommendations against Glencore merely reiterate Glencore’s pre-existing duties in a generic way. The NCP did not make substantive recommendations that were commensurate to the gravity of the facts of abuses and violations documented in the Complaint. As such, the Swiss NCP failed to fulfil the main task for which it was created, namely ensuring the implementation of the OECD Guidelines for Multinational Enterprises.
During the course of our engagement with the mechanism, there were serious asymmetries promoted by the Swiss NCP. For example, it was vital to us that indigenous Wayúu and Afro-Colombian communities who are affected by Glencore’s extractive mining activities had a voice in this process, and we suggested various mechanisms to the NCP in order to enable that. Though we raised these proposals repeatedly, and offered to be extremely flexible in relation to them, all such proposals were flatly rejected by the Swiss NCP. Further, the Swiss NCP did not grant all complainant organisations equal access to key documents. In November 2021, we wrote to the Swiss NCP, refusing to move to the next stage of the process unless all seven complainant organisations were given equal status in the proceedings, and the NCP consented to our request in writing. Nonetheless, almost two years after filing the complaints, the seven complainant NGOs in question have still not been allowed to access the relevant documentation. This situation, amongst other factors, led us to withdraw from the mediation.
Our experience with the Swiss NCP demonstrates the impossible barriers that victims of multinational coal companies face in accessing justice in different settings. Given the NCP’s incompetence, negligence and inconsistency, we reject that its Final Statement suggests that the failure to reach agreement on the terms of reference for the mediation is attributable to GLAN and the other complainant NGOs. It was with the utmost diligence and good faith that we participated in the procedure for two years. The Swiss NCP, in contravention of the Guidelines, placed a disproportionate burden on the complainants to facilitate our own access to the mechanism. The Swiss NCP has faced similar criticism in the past. Marcos Orellana, UN Special Rapporteur on Toxic Substances and Human Rights, recently said of another case handled by the Swiss NCP that it had set "a bad precedent that underlines the weaknesses of the national contact points for the OECD Guidelines". In promoting asymmetries between the parties, the Swiss NCP contributed to the architecture of impunity surrounding Glencore and other such multinationals.
The fact that Swiss legal accountability mechanisms do so little to regulate Glencore – a company with a documented history of corruption and serious allegations of human rights abuses and violations associated with its global activities – makes them part of the problem. The NCP’s conduct in this case contributed to the total impunity that Glencore enjoys for the serious human rights violations committed at its Cerrejón coal mine in La Guajira, Colombia. Although the Guidelines are voluntary for companies, countries that adhere to them make a binding commitment to implement them. The Swiss State's failure to address this Complaint, its failure to comply with its functions and obligations, suggests that it tolerates corporate abuses and violations of international human rights standards. In the face of these actions by Switzerland, it is evident that the voluntary National Contact Point mechanism merely masks corporate violations and provides impunity for them.
While the Swiss government does not grant real and effective guarantees of claims against Glencore's responsibility for the violations committed by the company Carbones del Cerrejón, this multinational does make use of its guarantees as an investor contained in the Agreement for the Protection of Foreign Investments signed between Colombia and Switzerland. Glencore has sued the state of Colombia for a court ruling that protected the human rights of the Wayúu people. It is deeply concerning that in the face of this asymmetrical situation, Colombia maintains this agreement.
We reiterate the inadequacy of non-judicial mechanisms to hold multinational companies to account. Cases such as this highlight the need for binding due diligence legislation and a binding business and human rights treaty that is truly capable of providing accountability for abuses of unchecked transnational corporate power.
AIDA, CAJAR, CINEP, Christian Aid, ¡ASK, ABColombia, and GLAN