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Torn between Legal Claiming and Privatized
Remedy: Rights Mobilization against Gold
Mining in Chile
Rajiv Maher
Trinity College Dublin
Tecnológico de Monterrey
David Monciardini
Steffen Böhm
University of Exeter
ABSTRACT: Many academic authors, policy makers, NGOs, and corporations
have focused on top-down human rights global norm-making, such as the United
Nations Guiding Principles for Business and Human Rights (UNGPs). What is
often missing are contextual and substantive analyses that interrogate rights mobi-
lization and linkages between voluntary transnational rules and domestic gover-
nance. Deploying a socio-legal approach and using a combination of longitudinal
field and archival data, this article investigates how a local, indigenous community
in Northern Chile mobilized their rights over a period of almost two decades. We
found that rights mobilization was largely shaped by tensions between the different
logics of legality and the business organization. In our case, the UNGP implemen-
tation process has been ineffective in giving rightsholders access to genuine rem-
edy. On the contrary, it has led to weakened rights mobilization, dividing the local
community. We conclude that greater attention to rights mobilization and domestic
governance dynamics should be given in the business and human rights debate.
KEY WORDS: rights mobilization, corporate remedy, business and human rights,
CSR governance, legal and business logics, mining-community conflict
The largest gold mining project in Chile, Pascua-Lama (valued at US$8.5bn),
owned by the world’s largest gold mining company Barrick Gold, was given the
go-ahead in 2000, yet was ordered by domestic environmental authorities to shut
down in 2018—a decision that was reexamined by Chile’s Supreme Court in 2019.
For almost two decades, this mine, which has strategic importance for Chile as it is
economically dependent on its mining industry (Moran, 2014), has been disputed
between communities, environmental activists, state authorities and the company.
For at least six years of this dispute, Barrick has been employing UN guided
human rights principles to deal with the rights claims by the community, making
Pascua-Lama an important test case for the business and human rights (BHR)
approach.
©2020 Business Ethics Quarterly (2020). ISSN 1052-150X
DOI:10.1017/beq.2019.49
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Barrick Gold is one of the strongest supporters of the BHR approach (Dashwood,
2012). Since 2012, Barrick Gold has employed John Ruggie the then UN Special
Representative on Business and Human Rights and architect of the UN Guiding
Principles (UNGPs), as a special advisor. On their website, the company claims:
To help meet our commitment, human rights considerations have been embedded into
Barrick’s values, governance frameworks and corporate management systems. From
supply chain and human resources to security and community relations, Barrick considers
it our responsibility to respect human rights throughout the business. We have developed
a human rights program that is robust and comprehensive, strives to be consistent with the
UN Guiding Principles (UNGPs), and is tailored to the issues and circumstances in every
location we operate (Barrick Gold, 2017).
Many authors claim that there is great promise in the UNGP, as human rights are
“changing the logic of doing business in a fundamental way”(Wettstein, 2015: 275).
However, BHR scholars and activists are increasingly divided over the approach
taken by the UNGPs (Deva & Bilchitz, 2013;Mares,2012; Rodríguez-Garavito, 2017).
Some advocate for the adoption of a legally binding UN–BHR treaty (Bilchitz, 2016;
de Schutter, 2016;Deva&Bilchitz,2017), frustrated by the UNGPs’voluntary approach.
Others take a more pragmatic view, focusing on improving the practical implemen-
tation of the UNGPs (Baumann-Pauly & Nolan, 2016; Rodríguez-Garavito, 2017).
In this article, we identify two key problems with this polarized debate on BHR
regulation. First, we detect a certain “de-territorialization”of the regulatory response
to human rights violations (Bartley, 2018; Cutler, 2005). As argued by Rodríguez-
Garavito, there is a disconnect between “top-down, norm-making, and norm-
implementation processes”and bottom-up initiatives made by “myriad communities
along with local and national organizations around the world [that] engage in
campaigns, litigation, negotiations, and information politics”(2017: 9). We argue
that there is a need for studies that interrogate the linkages between transnational
regulation and the domestic context, characterized by differing political, economic,
and juridical circumstances (Bartley, 2018; Reinecke & Donaghey, 2015). Second,
legal and business scholars in the BHR field tend to take the law for granted, treating
it as an exogenous force. In this article, we argue for a more sociological under-
standing of law as legality (Edelman, 2016; Edelman & Stryker, 2005; Selznick,
1969), including a processual understanding of how rights are actually mobilized by
people and communities, particularly those affected by large-scale developments.
Borrowing the concepts of “rights mobilization”and “legal consciousness”from
socio-legal literatures, this article sets out to address these shortcomings by using a
combination of field and secondary data, analyzing the complexities and impacts of
implementing the UNGPs from the perspective of rightsholders—a local, indige-
nous community—affected by the Pascua-Lama mine. Focusing our analysis on
how the community has mobilized its human rights over a period of almost twenty
years, this article shows how community activists have engaged with the mining
company, local and national governments, as well as with the legal system in
different ways over time. Specifically, we employ Edelman’s theoretical framework
(Edelman, 2016; Edelman & Stryker, 2005), which helps us examine the dynamics
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of rights mobilization within the context of two main fields: the legal field (in our
case, the Chilean domestic legal system) and the business organization field (in our
case, Barrick). Our research question is hence: How has the affected local commu-
nity mobilized its human rights in relation to the transnational business organization
and the domestic legal field?
This article makes three distinct contributions. First, we maintain that effective
human rights protection and redress depends, to a large extent, on how and why the
affected community groups mobilize their rights (McCann, 2010). Second, our
analysis stresses the major role of domestic governance and the constitutive power
of the legal field in shaping rights mobilization and business counter-mobilization
strategies. Third, our study reveals how the adoption of the UNGPs has enabled the
company to privatize the dispute, paradoxically resulting in weaker rights mobili-
zation and a more divided local community.
The article is structured as follows. We first review the relevant literatures on
BHR, showing why a focus on rights mobilization is needed. We then introduce the
Chilean case before discussing the research methods used. The case’s empirical
findings are then presented in detail and subsequently discussed and theorized in
light of the existing literatures. Finally, we will conclude the article by outlining our
contributions and the wider implications of our study.
BUSINESS AND HUMAN RIGHTS: BRIDGING
TRANSNATIONAL AND DOMESTIC GOVERNANCE
Since its emergence in the 1990s, the field of BHR has turned into a “microcosm”
(Ruggie, 2014: 6) of the broader debate on the extent to which public authorities can
regulate the behavior of multinational corporations (MNCs) (Bartley, 2018;
Braithwaite & Drahos, 2000; McBarnet et al., 2007; Strange, 1996;). Until recently,
it was conventional wisdom that the responsibility for enhancing business’respect
for human rights lay with governments. However, an initial attempt to elaborate
international, legally binding norms failed in 2003 (Kinley et al., 2007). This led to
the appointment of Professor John Ruggie as UN Special Representative and the
endorsement by the UN Human Rights Council in June 2011, of the UNGPs on BHR
he had elaborated and negotiated (United Nations, 2011). The UNGPs provide an
internationally accepted BHR framework for states and corporations, and it is con-
sidered as the “most comprehensive discussion to date of the relationship between
corporations and human rights”(Muchlinski, 2012: 145). Also known as the “Protect,
Respect and Remedy”framework, the UNGP features three pillars: a state duty to
protect human rights; a corporate responsibility to respect human rights; and access to
effective remedies for human rights abuses through judicial and nonjudicial means.
At the heart of the UNGPs is the view that globalization is diminishing the
capacity of nation states and the international order to regulate MNCs as they expand
their operations beyond the jurisdiction of their home countries. This is creating
widening gaps in business governance that require a new decentralized and poly-
centric approach (Ruggie, 2014,2017). In line with growing attention to the emer-
gence of transnational business governance initiatives (Bartley, 2007; Büthe &
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Mattli, 2011; Sahlin-Andersson & Djelic, 2006), the pragmatic solution proposed by
Ruggie entails that MNCs play a stronger regulatory role in filling these gaps,
especially when they operate in states that lack the willingness, capacity, or
resources to address human rights violations. In practice, corporations are required
to adopt corporate human rights due diligence policies to see whether and how they
are involved, or risk becoming involved, in human rights violations (Lambooy,
2010; Mares & Bird, 2014; Ruggie & Sherman, 2017). Also, where violations
emerge, business responsibility to respect human rights requires active engagement
in providing remedy to victims, by itself or in cooperation with other actors (Lukas
et al., 2016; Newton, 2019). As Ruggie clearly explained, this business responsi-
bility is not based on legal obligations:
This responsibility . . . is rooted in a transnational social norm, not an international legal
norm. It serves to meet a company’s social license to operate, not its legal license; it exists
‘over and above’all applicable legal requirements; and it applies irrespective of what
states do or do not do (Ruggie & Sherman, 2017: 924).
The adoption and implementation of the UNGPs has been widely debated, attracting
a large and varied academic literature (Deva & Bilchitz, 2013; Mares, 2011;
Rodríguez-Garavito, 2017). However, the BHR community is divided over the
UNGPs’effectiveness. Some express frustration over the voluntary nature of the
UNGPs (Albin-Lackey, 2013; Bard & Vo, 2016; Deva & Bilchitz, 2013), advocat-
ing for the development of a legally binding UN treaty on BHR (de Schutter, 2016;
Bilchitz, 2016; Deva & Bilchitz, 2017). Others focus on the practical implementa-
tion of the UNGPs (Fasterling, 2017; Rodríguez-Garavito, 2017; Santoro, 2017;).
This debate concerns particularly Pillar III and the question of how to ensure access
to remedy when human rights violations occur abroad. Some argue that the UNGPs
encourage states and firms to fill the remedy gap (Olsen, 2017). Suggestions have
been made to strengthen its application through the development of more effective
operational grievance mechanisms (see Lukas et al., 2016; Thomson, 2017). Others
maintain that the UNGPs approach is fundamentally flawed because it puts access to
remedy into the hands of states and businesses that are often the liability-holders,
creating a patent conflict of interest or at least weak incentives to redress abuses
(Melish & Meidinger, 2012). In practice, the majority of operational grievance
mechanisms have been designed and implemented by target companies, neglecting
the perspective of the victims (Coumans, 2017; Kaufman & McDonnell, 2016).
Thus, some NGOs are calling for extraterritoriality norms to enhance corporate
accountability for human rights violations committed overseas (Bernaz, 2013;
Skinner et al., 2013).
Against this polarized debate, we identify two major areas that should receive
greater attention. First, there is a lack of studies that interrogate, in a specific context,
the linkages between transnational business initiatives inspired by the UNGPs and
domestic legal structures and governance. Because of its emergence in relation to the
phenomenon of globalization, there is a tendency to “de-territorialize”both human
rights violations by MNCs and the regulatory response to them. De-territorialization
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broadly entails “detachment of regulatory authority from a specific territory”
(Brölmann, 2007: 86). De-territorialization processes are increasing the importance
of a primarily networked organization of spatial power by replacing, in particular,
the traditional role of the nation-state (Kobrin, 2008; Ó Tuathail & Luke, 1994;
Strange, 1996). On the contrary, re-territorialization processes can be defined as the
restructuring of local forms of organization of spatial power, such as the nation-state
(Popescu, 2010). As argued by Cutler (2005: 199), “critical globalization studies in
law means the development of a critical understanding of the dialectical relationship
between the deterritorialization and reterritorialization of law.”Drawing on Bartley
(2018), we argue that low- and middle-income countries are too often treated as
“empty spaces”that need to be rescued by the international community in the form of
corporate due diligence mechanisms, binding international treaties, and extraterri-
torial regulation. However, what is often forgotten is that, beyond this empty-spaces
imagery, domestic governance is filled not only by the activism of local communi-
ties but primarily by governmental agencies, domestic laws, and tribunals, as well as
local authorities (Banerjee, 2018; Bartley, 2018). This underscores the need for
understanding the unique role of the state in pluralist fields of governance, such as
the UNGPs regime. In particular, it suggests a closer and more substantive enquiry of
how the implementation of the UNGPs into corporate policies and practices inter-
plays with domestic legal, political, and socio-economic contexts.
Secondly, we argue that part of the problem is that scholars in the BHR field tend
to treat law as an exogenous force imposed from above on business and other actors
(Bernaz, 2013; Deva & Bilchitz, 2017; Melish & Meidinger, 2012). As such, law is
often taken for granted as an independent variable: either invoked as a coercive and
determinative force or dismissed as mere business compliance. A substantive and
contextual understanding of BHR regulation could be enhanced by adopting a more
sociological consideration of law as “legality”and a renewed focus on rightsholders,
their legal consciousness, and their capacity to mobilize their rights (Selznick, 1969;
Edelman & Stryker, 2005; Santos & Rodriguez-Garavito, 2005).
RIGHTS MOBILIZATION: STUDYING DISPUTE PROCESSES
FROM THE PERSPECTIVE OF RIGHTSHOLDERS
To develop a more critical, substantive, and contextual approach to BHR regulation,
we suggest it is productive to borrow insights from the socio-legal research. In
particular, we draw on research that has studied the problematic enforcement of
US antidiscrimination laws following landmark social reforms promoted, since the
1960s, by the civil rights movement (Brigham, 1996; Edelman, 2016; McCann,
2010). Our analytical framework, illustrated by Figure 1, is based on three inter-
twined elements: rights mobilization, legal consciousness, and legality.
The phenomenon of rights mobilization was first explored in a host of empirical
studies that emerged in the United States beginning in the 1960s and 1970s
(McCann, 2010). For the scope of this study, we prefer this term to the popular,
yet narrower, concept of legal mobilization. According to Zemans’s(1982: 700)
definition, “The law is …mobilized when a desire or a want is translated into a
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demand as an assertion of rights.”Rights mobilization provides an important
“bottom-up”contribution to the BHR debate by emphasizing that laws, norms, or
even corporate policies are of very limited use if rights are not mobilized by the
affected communities or individuals. Thus, it responds to frequent calls for rights-
based and bottom-up approaches to BHR regulation (Coumans, 2017; Kaufman &
McDonnell, 2016; Melish & Meidinger, 2012). Its main focus is on ordinary
people’s response to (un)perceived injurious experiences.
Rights mobilization has been theorized as a longitudinal, dynamic, multistage
process of disputing among various parties. To mobilize rights, individuals or
communities must first recognize a rights violation (naming), then attribute the
violation to a legally responsible party (blaming), and lastly take action to seek
redress for the violation (claiming). This widely adopted three-step process, known
as “naming, blaming, and claiming”(Felstiner et al., 1980), is often perceived by the
rightsholders as complex and daunting. There is extensive evidence that the vast
majority of individuals whose rights are violated take no formal action to redress
those violations, particularly if they have limited social power or economic resources
(Galanter, 1974; Miller & Sarat, 1980; Nielsen et al., 2010). In fact, many individ-
uals do not even recognize when a violation of their rights has occurred, or they may
believe that recurring to legal redress could lead to retaliation or is simply futile. In
other words, rights mobilization depends at least in part on a second key element:
legal consciousness.
Legal consciousness can be defined as the understanding of the meaning of law
and rights by individuals or groups as they engage, avoid, resist, or just assume the
law and legal meanings (Brigham, 1996; Ewick & Silbey, 1991). In particular,
Brigham (1996) identifies “rights, rage, and remedy”as three significant forms of
Legalization of Organizations
Managerializationof Law
Legal Field
Affected Community
Right Mobilization
and Legal Consciousness
Business Organizational
Field
Figure 1: Theoretical Framework (adapted from Edelman, 2016)
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how legal conventions prefigure, frame, and express the aspirations and world-views
of social movements. Subaltern groups and relatively powerless citizens often have
limited capacity to engage with legal discourses, knowledge, and language against
more powerful groups and organizations. Thus, they are less likely to successfully
mobilize their rights or even perceive injurious experiences.
Most of the literature on dispute processes has gradually shifted towards alterna-
tive dispute resolution (ADR), dialogue, and conflict resolution (cf. Menkel-
Meadow, 2000,2004). Following this trajectory, the UNGPs present human rights
due diligence and non-judicial grievance mechanisms as tools to identify and
address “any legitimate concerns”before they “may over time escalate into more
major disputes and human rights abuses”(UNGPs: 32). Thus, the current debate on
the operationalization of the UNGPs emphasizes firm-community dialogue and
participatory processes as means to prevent and resolve BHR disputes (Gathii &
Odumosu-Ayanu, 2016; Kaufman & McDonnell, 2016; Tamir & Zoen, 2017;
Thompson, 2017).
Lastly and relatedly, understanding law as legality helps explain the social struc-
tures within which rights mobilization and legal consciousness evolve over time. In
particular, our analytical framework (Figure 1) draws on Edelman’s approach to
legality (Edelman & Stryker, 2005), which offers two relevant insights to our study.
First, she has developed a comprehensive theory of the interplay between law and
business organizations, based on her research on courts, corporations, and civil rights
(Edelman, 2016). Building on the bottom-up approach taken by rights mobilization
and legal consciousness researches, the author stresses the “endogeneity of law.”That
is, “the meaning of law is shaped by widely accepted ideas within the social arena that
law seeks to regulate”(Edelman, 2016: 12). Thus, deploying a sociological theory of
fields, she conceptualizes law and organizations as overlapping social fields
(Bourdieu, 1987; Di Maggio & Powell, 1983; Fligstein & McAdam, 2012), which
she calls the “legal field”and the “business organizational field”(see Figure 1). This
approach differs from the focus on actors—NGOs, corporations, public authorities,
etc.—taken by most of the BHR literature. By stressing that there are fundamental
tensions between the different core logics of legality and business fields, this approach
contributes to our understanding of the interplaying rationalities, languages, and
social structures deployed by business organizations and legal institutions to frame
BHR matters (Branco, 2008; Wettstein, 2012).
Furthermore, Edelman (2016) contributes to the emerging literature on counter
rights mobilization, corporate backlash, and group-based resistance (cf. Boutcher &
Chua, 2018) by finding that one important reason for continuing racial and gender
discrimination in the workplace is a process that she calls “managerialization of
law.”This is often spurred by some combination of social movement activity and
perceived legal threats, which Edelman calls “legalization of organizations”
(Figure 1). She shows that—as a response to the legalization process—business
organizations typically create law-like “symbolic”structures that “demonstrate
attention to law and, therefore, lend legitimacy to organizations in the eye of the
law”while “maintaining sufficient flexibility to preserve managerial prerogatives
and practices that are seen as advancing business goals”(2016:31–32).
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This is relevant for the scope of our enquiry because these corporate law-like
structures include the typical “new governance”mechanisms supported by the
UNGPs, such as corporate human rights policies, that look like legal norms, as well
as grievances mechanisms and corporate appeal procedures that are similar to
judicial and law enforcement systems. We argue that Edelman’s explanatory frame-
work offers valuable insights to explain how the interplay between UNGPs-inspired
transnational business structures and domestic governance shapes rights mobiliza-
tion. We will now explore these dynamics in the Pascua-Lama case in Chile.
METHODS AND DATA
Case Selection and Research Context
Since the question of rights mobilization and the UNGPs has not been greatly
examined in the literature so far, we find the use of a qualitative contextualized case
study most appropriate (Edmondson & McManus, 2007; Pettigrew, 2013). In par-
ticular, it enables us to “observe everyday life through interpretative frameworks, to
get close to the context of the study, and to reveal unfolding social processes”
(Pettigrew, 2013: 124). The case selection was based on the anticipation of the
opportunity of developing a theory by learning about various hypotheses and their
observable implications in a specific context (Eisenhardt & Graebner, 2007; Stake,
1995). The Pascua-Lama dispute represents an unusually revelatory case (Yin,
2017), able to offer theoretical insights to explore the transformations of human
rights mobilization and the interplay between domestic and transnational business
governance. In many ways, this lengthy dispute—starting in 2000 and still ongoing
at the moment of writing—represents a familiar case of rights mobilization by an
indigenous community againsta mega-mining project that menaces its very existence
(Bebbington et al., 2008; Bruijn & Whiteman, 2010; Maher, 2019;Misoczky&
Böhm, 2015; Misoczky, Camara, & Böhm, 2017). The local mobilization appears
even more significant because of the extreme environmental conditions in which it is
taking place and the unlikely capacity of the residents to stop the largest gold mining
company in the world (Li, 2017). The paradigmatic nature of this dispute has attracted,
from the very beginning, a vast echo, including some academic interest (Arboleda,
2015; Cavallo; 2013,Li,2017; Maher, Valenzuela, & Böhm, 2019; Smith &
McCormick, 2019; Urkidi & Walter, 2011). While our study builds on previous
analyses, it aims to deploy a more comprehensive socio-legal explanatory framework
of material and symbolic struggles, focusing on the community’s rights mobilization.
The fragile Huasco Valley can be described as a fertile oasis snaking its way down
from the Andes in the middle of one of the driest deserts on Earth. The valley is
famous for its plump olives, pisco, and a celebrated wine, known as pajarete, and
it is the home of a rural community (4,840 people) of which about half belongs to the
Diaguita indigenous group. Almost seven in ten houses are adobe buildings, and
three-quarters of the working population has not completed standard schooling
(Urkidi, 2010). Notably, the initial phase of the Pascua-Lama dispute coincided
with the struggles of the Diaguita people to be legally recognized by the Chilean
government. At an altitude of between 3,800 and 5,200 meters, the mine is believed
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to contain 18 million ounces of gold and 600 million ounces of silver with a planned
investment of US$8.5bn. During droughts, the locals struggle to get access to the
limited available water, and thus water and fertile land are sacred and invaluable to
them. By seriously threatening the existence of three glaciers (known as Toro 1, Toro
2, and Esperanza), on which depends their access to freshwater, the local commu-
nities perceive the Pascua-Lama mining project as a direct threat to their existence.
As noted by Li (2017:15), “Pascua-Lama’s contested glaciers can help to elucidate
the dynamics of recent mining conflicts and unsettle theoretical assumptions about
resources.”
The significance of the case is also enhanced by the profile of Barrick Gold, the
largest gold miner in the world and owner of the Pascua-Lama mine. This Canadian
company holds a special place in the BHR debate, having been implicated in a variety
of other conflicts with communities worldwide. For example, analysts have reported
on rapes of female community members by Barrick’s security forces at its Porgera
mine, in Papua New Guinea. The corporation has been praised by some for the way it
has implemented a grievance mechanism in Porgera, where it was advised by John
Ruggie (Human Rights Clinics, 2015). However, most of the literaturetakes a critical
lens toward Barrick’s legacy at Porgera (Coumans, 2017; Kaufman & McDonnell,
2016) as well as in other countries, such as Tanzania (Mining Watch Canada, 2017).
There is a key difference between Pascua-Lama and other human rights disputes
in which Barrick has been involved. Significant barriers to remedy and justice exist
both in Tanzania and Papua New Guinea due to limited domestic governance and
weak judicial systems. These cases fit the conventional imagery of human rights
violations perpetrated by MNEs in so-called “areas of limited statehood”(Borzel &
Risse, 2010). Thus, it has been acknowledged that Barrick’s remedy mechanism
provided victims with a remedy that many otherwise would have been unlikely to
receive (Human Rights Clinics, 2015). In contrast, the Chilean state has a more
developed governmental and judicial system, although it is considered to have
insufficient environmental and human rights legislation (Cavallo, 2013). In this
sense, Pascua-Lama provides a more significant research context to study how the
interplay between private transnational governance and domestic circumstances
shape human rights mobilization.
Data Collection
Our research covers a period from 2000 to May 2019, from the beginning of the
dispute to the current situation, where a judicial decision to permanently close the
mine is being challenged in the courts. Actual data gathering started in 2012, and
during this long period, we adopted an iterated, inductive approach (Glaser &
Strauss, 1967), strategically looking for information sources that could fill our
information gaps. Overall, our dataset combines multiple sources: seventy-four
interviews (fifty-eight with local residents, four with local politicians, three with
national NGO activists, and two with BG representatives); participant observation;
and archival data. Table 1 summarizes all our data sources. Most of the interviews
were recorded, transcribed, and translated (the authors are fluent in Spanish).
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The international prominence of the case helped our analysis of the dispute
because of the availability of a vast amount of archival information. The data
collection comprises various phases. We began in 2012 by analyzing publicly
available data. Initially, this case study formed part of a larger project that sought
to understand the influences and explanatory factors for community positions
towards eight nearby mining projects in Brazil and Chile. Then, in 2012, the lead
author completed a first participatory observation—living with the local commu-
nity, participating in meetings, and conducting a series of interviews through snow-
balling sampling. Initial access to this close-knit community was through OLCA, an
environmentalist NGO, but soon a relation of trust was established with key mem-
bers of the community, facilitating meetings with different groups (e.g., indigenous
people, small farmers, activist, politicians, and the local clergy). Interviews were
focusing on an overview of the dispute process, the valley, the impact of the project,
and possible grievances. In total, twenty people were interviewed, and this material
was invaluable to identify the position of the main community groups. Since 2013,
we have been reviewing newsletters and had consistent electronic communication
via various platforms (WhatsApp, Skype, and emails) with three community leaders/
residents on the dispute, and completed two interviews in 2015 at international
events with a community leader. A second participant observation and series of
field interviews took place in September 2017. Despite the suspension of the mine,
this time the community was deeply divided and mobilization was depressed. Thus,
the interviews with twenty-two residents and two politicians focused on the com-
munity fractions, mapping the position of the groups, and rights mobilization trans-
formations. A third research visit to the Huasco Valley was undertaken in February
2019 where the field researcher interviewed fifteen residents and two politicians.
This third trip was valuable since it allowed us to gauge perceptions after Pascua-
Lama had been legally ordered to close by Chilean courts in January 2018.
As the Pascua-Lama dispute has attracted substantial public attention and there is
a wealth of secondary data, particularly that produced by various civil society groups
opposing the mine, our understanding of this case has also been greatly aided by an
analysis of a substantial amount of archival documents (a list of websites for non-
academic reports, news sources, and videos is contained in an online supplementary
appendix). They include technical and media reports, video documentaries and
interviews, and legal documents dating from 2000 to 2019. We consulted a total
of sixty-one such archival sources (including videos). In particular, various legal
documents and records were collected and analyzed in 2018 and 2019, as the legal
domain became increasingly central to our research (see also Table 1).
Data Analysis
Data analysis started in May 2017, following an inductive approach. Internal dis-
cussions and interdisciplinary synergies helped us to make sense of the data and
identify major themes pertaining to rights mobilization and business logics whilst
often going back to the raw data, pedaling back and forth between the raw data,
themes, processual dynamics, and our research question (Denzin & Lincoln, 2005).
Raw data were separately analyzed and then discussed together by the authors
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Table 1: Sources of Information and Type and Amount of Data Obtained in Each Category
Data source How the data were used
Legal, corporate, and
NGO documents and reports
(approx. 520 pages)
Antecedents of the Pascua-Lama gold mine project and the conflict.
Development of a historical and chronological account of the conflict
between the Pascua Lama gold mine project and the Huasco Valley
community.
Analysis of state, corporate, community, and NGO perspectives of the
Pascua-Lama gold mine.
Report on process of signing MoU Agreement between Barrick and
community.
MoU for Due Diligence Agreement between Barrick and community
Human rights impact assessment.
Analysis of Barrick Gold’s CSR and due diligence related strategies.
Analysis of NGO and activist strategies towards the mine.
Analysis of local community engagement and resistance to Barrick.
Historical account of how the gold mine was approved by the Chilean
state.
Legal complaint files to courts against Pascua-Lama.
Court rulings and reports.
Articles from the media between
2011–19 (approx. 130 pages)
Analysis of the conflict from business, mainstream, and activist press
sources.
Development of a historical and chronological account of the conflict
between the Pascua-Lama gold mine project and the Huasco Valley
community.
Academic articles (approx. 110
pages)
Analysis of anti-mining movements’strategies in the Huasco Valley.
Analysis of impact of the Barrick’s CSR and due diligence strategies in
the Huasco Valley.
Undergraduate theses 3 theses
(approx. 500 pages)
Analysis of local community history, identity, and social ties.
Analysis of impact of the Barrick’s CSR and due diligence strategies in
the Huasco Valley.
Social media and blog
discussions (approx. 25 pages)
Analysis of community and activist perspectives towards Barrick and
its CSR and due diligence related strategies.
Current legal developments regarding conflict.
Video documentaries and reports
(approx. 5 hours)
Visual historical analysis of the conflict and of corporate influence.
Strategies from community, activist, and corporate perspectives.
Reports on legal challenges and outcomes.
Open interviews (74 interviews
with 53 interviewees)
Characterization of Barrick’s strategies to influence and convince the
local community for a social license.
Characterization of local community and activist’s resistance strategies
to the Pascua-Lama project.
Understanding of local dynamics between community groups in rela-
tion to Pascua-Lama.
Characterization of local community identity vis a vis their perceptions
of the Pascua-Lama project.
Direct observation (12 days of
direct observation)
Characterization of local community identity vis a vis their perceptions
of the Pascua-Lama project.
Characterization of Barrick’s strategies to influence and convince the
local community for an SLO.
Characterization of local community and activist’s resistance strategies
to the Pascua-Lama project.
Rights Mobilization
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against the literature and our emerging analytical framework. As the complex
narrative started to become clear, we used an iterative method of aggregating
findings and analytical tools provided by the rights mobilization literature to con-
struct our emerging theorization.
We realized during our first data analysis that a major shift occurred in the
community between 2012 and 2017, which we analyzed as a shift from resistance
to acquiescence; that is, from a community broadly united in fighting against the
corporation to one deeply divided and increasingly resigned. Thus, we asked our-
selves what could explain this change. We used open, first order coding to identify
chronological changes in the mobilization of the affected community against the
project, focusing on the interplay between the community and the other two actors—
the corporation and the state. However, we realized that by focusing only on the
actors, some key elements that shaped the transformation of the dispute risked being
missed. In particular, we considered that symbolic struggles needed greater atten-
tion. Thus, we deployed rights mobilization (naming, blaming, and claiming) and
legal consciousness of the various local groups (e.g., mistrust of the legal system and
the state, awareness of rights violations, uncertainty about legal outcomes) as central
analytical tools in explaining the shift from resistance to acquiescence. This led us to
identify second-order themes (naming, blaming, claiming, law response to commu-
nity, and changing corporate social responsibility [CSR] strategies), which better
captured the interplay between the community’s rights mobilization, legality, and
business, understood as social fields. Once we agreed that rights mobilization was
central in explaining the transformation of the dispute, we studied the dynamics of
rights mobilization by the community over time. First, we considered the trans-
formations in rights mobilization in relation to the legal and business social fields.
Second, following Langley (1999), we organized the rights mobilization process
into cumulative and partially overlapping phases in which the meaning and practices
of rights mobilization changed, yet various elements of the previous phase remained
the same. Consequently, we present our findings “within a chronological timeline to
evidence how specific dynamics take place within a given moment and how they
evolve across time”(Reay et al., 2019: 10).
EMPIRICAL ANALYSIS AND FINDINGS
In this section, we discuss how rights mobilization has changed over a period of
almost two decades in the context of a significant and complex human rights dispute
between Barrick Gold and the Huasco Valley community in Chile. The affected
community accused Barrick’s Pascua-Lama mining project of having a severe
negative impact on freshwater resources as well as land and indigenous rights. In
our longitudinal study, we focus on the perspective of the affected local community.
In accordance with our theoretical framework (see Figure 1), we aim to investigate
how the community’s rights mobilization has been affected by the interplay between
the domestic governance (the legal field/legality) and transnational private regula-
tion (the organizational field/Barrick Gold). As summarized in Figure 2, we identify
three distinct phases in the dispute. Each phase differs in terms of the relationship
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Phase 1: Dispute Antecedents
Rights mobilization against Barrick
Phase 2: Dispute Legalization
Claiming for human rights protection
Phase 3: Suspended between Legal and
Organizational Logics
Divided and depressed rights mobilization
Legal Field -Chile-Argentina approve the mine; ‘Barrick Republic’
-De-territorialisation of the mine
-Retreat of the state/ legal field
-New laws adopted by Chilean state; Superintendency of the
Environment (SMA) is created
-State and judicial authorities reassert their power and control;
numerous lawsuits filed
-SMA issues record fine; orders suspension of mine
-Legal uncertainty and ambiguity
-SMA concludes 5 year investigation of mine project; decrees
‘definite closure of Pascua Lama’
-SMA decision contested by BG; Chile’s Supreme Court revokes
SMA ruling and sends the case back to the Environmental Court
Community
Groups
-Community is
largely united in
their opposition of
the project,
despite corporate
welfare and CSR
investments by
BG
-Blaming: BG and
the state are
equally blamed,
and perceived as
one and the same
thing
-Public outcry and
rage; law is
perceived as
unfair
-No legal means
are available
-Media campaigns
OLCA & Huasco Valley
activists
-Naming: Frame injury around
values and ancestral norms
(sacred water and land)
-Direct challenge to BG at
Annual Meeting in Toronto
-Rights mobilization
shifts from public rage
to legal claiming
-Framing of injurious
experience through
legal forms and
strategies
-Accusations against BG
on legal principles (right
to life, health and water)
-Community divisions
start to emerge
(controversy over
compensation versus
remediation for
environmental damage)
OLCA & Huasco Valley activists
-Seek redress for damages
through various national and int.
courts (Inter-American
Commission on Human Rights)
-Media campaigns and scientific
reports
-Community is divided;
different approaches to
the dispute resolution
(legal versus business
organizational logics)
-In-fighting between
community groups
-Community is torn
between judicial and
extra-judicial (privatized)
solutions
-Legal uncertainty leads
to loss of faith in the
state and legal system
-Rights mobilization is
depressed
OLCA & Huasco Valley activists
-Continue legal and media
campaign against BG
-File complaint at court against
MoU and lawyer Soto
-Publish critical report on MoU /
UNGP process
Huasco Valley grape farmers
-Naming: Frame injury around
economic loss
-Accept $65m from BG in
exchange for ceasing
opposition
Huasco Valley grape farmers
-Go to various national courts,
seeking redress
Huasco Valley grape farmers &
Diaguita Group
-Lose faith in legal field
-Out of court settlement with BG
helped by lawyer Soto
-Sign MoU with BG
Diaguita Group
-Naming: Frame injury around
values and ancestral norms
(sacred water and land)
Diaguita Group & lawyer Soto
-Obtain suspension of the project,
confirmed by Supreme Court with
the help of lawyer Soto
Business
Organizational
Field
-BG presents Environmental Impact Assessment, plan
to relocate 3 glaciers
-Corporate welfare and CSR investments in the
region; aim of obtaining a social licence to operate
-BG funds legal services for the community to gain indigenous
status
-Under pressure of lawsuits and regulatory sanctions, BG
admits wrongdoing and self-reports violations
-BG starts to work with John Ruggie
-Continuation of CSR programmes
-BG embraces UNGPs globally, creating law-like structures &
processes
-Signing of Memorandum of Understanding (MoU) between BG
and Diaguita Group
-Out of court settlements with parts of the community; active
attempts to divide community
2000 201920132006
Note. BG = Barrick Gold.
Figure 2: Three Phases of Rights Mobilization at Pascua-Lama (2000-2019)
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between legal and organizational fields and the response of the affected community
to perceived violations of their fundamental rights.
Phase I: Dispute Antecedents (2000–2006)
Following the ratification in 2000, of a bilateral mining treaty between the states of
Chile and Argentina, Barrick Gold was able to create a so-called “third state”in the
Andes, between the two borders, exclusively managed by the mining company. This
extraterritorial status allowed Barrick to mine gold and silver without facing legal
obstacles in either country (Quevedo et al., 2004). This unusual power can be
illustrated by the fact that public officials, or civil society, had to give a fifteen-
day formal notice to Barrick before being allowed to enter what was internally
known as the “Barrick Republic”(Globe and Mail, 2014). Soon after, Barrick
submitted its initial environmental impact assessment (EIA) in order to start mining.
In the EIA, Barrick planned to move three glaciers in order to gain access to the
deposits beneath them. They would be moved to another glacier with which they
were to bond (Li, 2017).
Rights Mobilization against the Barrick “Third State”
Rights mobilization in the Huasco Valley began around 2000 as the community
became, quite accidentally, aware of the project. Quickly, the community decided
to “fight off these big mining companies invading our land!”because “those who are
not from the valley do not understand the sacred value of the water and the land, the
Mammu Ashpa, as we say in our language”(interview, community leader C, 2012). In
this initial phase, the community was very united against the mega-project. By 2005,
according to a poll by the main newspaper in the region, 97 percent of the Huasco
Valley community was against the Pascua-Lama mine (Diario Chañaricillo, 2005).
As noted by Felstiner et al., the earlier stages of naming, blaming, and claiming are
crucial to determine the following transformations of rights mobilization, “not only
because of the high attrition they reflect, but also because the range of behaviour they
encompass is greater than that involved in the later stages of disputes, where
institutional patterns restrict the options open to disputants”(1980: 636). These
early stages reflect social stratifications as well as personality traits and individual
characteristics that explain why “people do or do not perceive an experience as an
injury, blame someone else, claim redress, or get their claims accepted”(1980: 636).
Notably, the community’s initial perception that their fundamental rights had been
violated (naming) was framed around two nonlegal rationales.
First, most of the local community perceived the project as a violation of the
sacred value of water in this arid region. This popular feeling was supported by both
Christian and more ancestral norms and beliefs. Second, some groups, particularly
landowners, stressed the potential ruinous economic impact of the mega-mining
project, with the glaciers helping to sustain agricultural production in the valley
downstream (Li, 2017). Both clearly emerge from our interviews: “Water is life and
the mine represents destruction to the valley”(interview, community leader C,
2012); “The most sacred for the Diaguitas are the mountains …where you can find
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the spirits of our tatai (ancestors). From these mountains life comes: la co, ko, which
means water”(email correspondence with community leader C, 2013); “Without
water we cannot continue to grow the sweetest grapes for export, or avocados,
watermelons and other crops”(interview, community resident C, 2012).
Crucially, the local clergymen legitimized this process of collective awakening
after having obtained the support of national environmental NGOs such as OLCA:
“the priest gave mass on the riverbed to show the importance of the water and OLCA
with other locals painted the church, walls and organized lots of marches against
Barrick”(Interview, community leader, C, 2012). Rapidly, the community became
very assertive in attributing to the company a responsibility for a long list of
violations and abuses (blaming). The community was particularly offended by
the fact that Barrick had omitted the existence of glaciers in its initial EIA: “We,
the Diaguitas, never forgave them for that”(email correspondence with community
leader C, 2013).
Starting in 2001, multiple smallholder farmers consistently blamed Barrick for
negatively affecting the quality of the water and creating water scarcity. However,
despite all the accusations mentioned above, the affected community did not seek
legal redress (claiming) from Chilean courts until 2012. Their accusations were
translated into public rage, marches, and community meetings where abuses were
discussed and denounced. This situation has a twofold explanation. The community
mistrusted the state, blaming it for being “in bed with”Barrick. Indeed, they deemed
the bilateral mining treaty to be unconstitutional, feeling abandoned by the state
(Quevedo et al., 2004). In the words of our interviewee Sergio Campusano, Pres-
ident of the Huascoaltinos cooperative farmers, “the State of Chile has not respected
our basic right to decide what we want for our development.…Our community was
intentionally ignored by the State of Chile …because we oppose mega-mining
development within our land”(Protestbarrick.net, 2010). Furthermore, the
Pascua-Lama project brought to light the difficulties in accessing redress and
protecting indigenous access to water when domestic human rights and environ-
mental laws are not in place and fully harmonized with international standards
(Cavallo, 2013).
Translocal Business and Human Rights
The absence of state and legal actors is striking in the initial phase of the dispute.
Pascua-Lama’s extraterritoriality perfectly illustrates what scholars call transna-
tional private regulation, defined as “a de-territorialized form of authority where
governments offload regulation to the private sector, partly reflecting neoliberal
ideas about the power of markets to solve social problems”(Bartley, 2018: 12). As
part of Pascua-Lama de-territorialization, it is significant that Barrick initially dis-
regarded the glaciers’existence. The glaciers were only later included in the EIA. As
Li (2017) notes, from Barrick’s organizational perspective, glaciers, mountains, and
rivers tend to be seen as resources to be managed, while for the locals they make up
people’s sense of place, their identities, and ways of life.
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The cession of sovereignty by the Chilean and Argentine governments to a
transnational business organization is an extreme example of the declining authority
of the state that characterizes neoliberal globalization (Strange, 1996). Firm-
community relations are not embedded in the more vertical nation state modes of
governance. Drawing on Banerjee’s concept of translocal governance, “communi-
ties make alliances with other communities and local actors and firm-community
interactions tend to be direct and not mediated by participation in larger forums”
(2018: 811). In our case, the firm-community conflict rapidly escalated from the
Huasco Valley to a transnational scale via innovative forms of “networked activism”
(Land, 2009). The OLCA NGO helped local activists to communicate their concerns
to international activist networks, such as Canadian NGOs Protest Barrick and
Mining Watch, which had begun covering the dispute. Between 2004 and 2006,
major street protests against Pascua-Lama were organized not only in Chile but also
in Barcelona, London, Cambridge, and Toronto (Urkidi & Walter, 2011). From
2004 onward, in an attempt to attack Barrick at home, these accusations were
publicly directed against the company by Campusano during the Annual Share-
holder Meetings in Toronto. They were also repeated in many street rallies, town
meetings, and university or public lectures about the violation of Huascoaltinos’
rights across the globe (Protestbarrick.net, 2010).
As the opposition to the project mounted, Barrick’s response was equally direct,
trying to bargain local support for the project by launching massive welfare
investments and CSR projects. Between 2003 and 2005, Barrick spent US$16m
to co-fund—with the local and regional government—housing and education pro-
jects in the region (Barrick Gold, 2018). In 2006, the company signed a contract with
large wealthy farmers, worth US$65m over twenty years, for monitoring and
improving the water supply (Barrick Gold, 2018). The indigenous community
accused the company of having paid the sum to obtain the farmers’powerful support
as pointed out in numerous interviews during our fieldwork. Arguably, this strategy
was effective with public authorities. In 2006, the environmental regulator approved
an amended version of the mining project with four hundred conditions (Barrick
Gold, 2018). The company could finally start its Pascua-Lama operations. The
decision only increased the community’s rage and perception of distress and injus-
tice (OLCA, 2006). It also fueled mistrust toward the Chilean state and judicial
system. Significantly, in November 2006, the community staged a “citizens’
tribunal,”with testimonies and judges that would determine abuses and responsi-
bilities that the state was averse to sanction, and emit a verdict on Barrick’s activities
(Miningwatch Canada, 2006).
Phase II: Dispute Legalization (2006–13)
Once the project officially started in 2006, rights mobilization also began to be
transformed. The mounting public rage was gradually transferred into more formal
legal actions against Barrick. The community took the dispute to various interna-
tional and eventually national courts, seeking redress for the alleged violations.
Meanwhile, the Chilean state strengthened its human rights and environmental
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legislation, also in response to the growing public concern created by mega-mining
projects such as Pascua-Lama. As a result, Barrick was forced to become more
responsive to public authorities and the affected population, reframing its actions
through legal tools and according to the domestic legal order.
Re-centering the State
In contrast to Phase I, during Phase II the state and judicial system became much
more assertive in protecting human rights and the environment. In particular, the
situation changed after the election of the socialist President Bachelet (2006–10).
The Chilean state started strengthening its human rights and environmental legisla-
tion. In September 2008, Chile ratified ILO 169 on indigenous peoples’rights. Two
years later, in Bachelet’s penultimate month in office, the government also intro-
duced important environmental reforms that came into effect in 2012. Law 20600
entailed the creation of new environmental courts, specialized and independent
jurisdictional entities that are under the supervision of the Supreme Court
(Biblioteca del Congreso Nacional de Chile, 2012). The law also established the
Superintendency of the Environment (SMA), a decentralized public service with
legal authority, subject to the supervision of the Ministry of the Environment. The
SMA was granted the power to prosecute environmental violations (SMA, 2018),
something which had the potential to appease the growing number of environmental
conflicts in the country.
At the same time, the limitations of Pascua-Lama’s transnational private gover-
nance soon became evident. Multiple complaints kept emerging from community
residents about the impact of the mine operations to the local watershed, accompa-
nied by hundreds of publicly available videos evidencing contamination
(e.g., Pascua-Lama, El llanto de la Montaña, video, 2015). “Pollution will be and
is high. The river turned red in January and February due to mine testing by Barrick,
we depend on this river!”(Interview, local leader C and later B, 2012). This
regulatory failure triggered a major shift in the relationship between the organiza-
tional and legal fields, re-centering the authority away from the company toward the
state. The company was forced to focus more on compliance with domestic law,
engaging in costly lawsuits. Immediately after its creation in 2012, the SMA began
conducting inspections at Pascua-Lama. Between 2012 and 2013, the residents filed
various lawsuits against Barrick. In January 2013, part of the canal system at Pascua-
Lama collapsed. Barrick, coming increasingly under pressure, self-denounced to
authorities for severe infractions of their environmental permit (SMA, 2013). Var-
ious local community groups also filed complaints against Barrick to the newly
established SMA for faulty construction of the perimeter channels and failure to
fulfil the mine’s glacier monitoring plan. In April, the residents obtained the sus-
pension of Pascua-Lama via the Court of Appeals in the city of Copiapó. In May
2013, after conducting onsite investigations, the SMA ordered Barrick to suspend all
operations and charged the company with a record fine of around US$16m (SMA,
2013).
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During this phase, Barrick did not fundamentally change its counter-mobilization
tactics, based on privatized welfare and CSR investments, in exchange for a social
license to operate (e.g., the Atacama Commitment). It was forced to become more
responsive to legal discourses about the constitutional and indigenous rights of the
affected community. For instance, in 2008–9, Barrick offered to pay for legal
services necessary for local communities to gain indigenous status from Chilean
authorities, affording them access to certain social, economic, and state benefits.
However, rights were still framed through business logics, seen as a form of
“bargaining”dispute resolution (Menkel-Meadow, 2014). Barrick also demon-
strated greater attention to the affected community, beyond wealthy landowners.
Between 2008 and 2009, the company completed over a thousand local community
consultations. As a result, in 2009, Barrick announced a community monitoring
program through which local residents could independently test water quality
(Barrick Beyond Borders, 2017). Despite its efforts, according to our data, tradi-
tional CSR investments and community dialogue were ultimately ineffective in
shifting the community opposition to the mining project. The following quote from
the Director of OLCA suggests the company’s strategy remained de-territorialized,
responding to transnational organizational logics external to the Valley:
Those initiatives, finally of course, have a communicational impact externally but inter-
nally it is not so clear whether they achieve the impact that they [Barrick] want, because
they do not manage to completely dissolve the opposition to the project (interview with
Director of OLCA, 2017).
Claiming for Human Rights Protection
The legalization of the dispute and the decision by the SMA to suspend the project
and fine Barrick US$16m can be largely attributed to a significant change in the
affected community’s mode of rights mobilization, from public rage to legal claim-
ing. This corresponds to a transformation in their legal consciousness (Ewick &
Silbey, 1991). Rage, as an ideological discourse, often identifies government and
judicial instruments “with oppression rather than protection”(Brigham, 1996: 310).
Thus, the Huasco Valley community found it hard to move away from mobilization
by rage to reliance on judicial and governmentally produced rules. This shift also
depended on the adoption of human rights and environmental law reforms by the
Chilean government, which created “legal opportunity structures”for the affected
community (Anderson, 2008).
In this phase, legal forms came to infuse the language, strategies and ideals of the
Huasco Valley community. Given their mistrust of the Chilean state, it is not
surprising that the Huascoaltinos went first to the Inter-American Commission for
Human Rights (IACHR) rather than the Chilean courts, filing a case against the
Chilean state for failing to protect their rights (IACHR, 2009). In 2009, the Com-
mission declared the admissibility of their petition, submitted in June 2007, accusing
the Chilean state of violations of the rights to property, to access to justice, and to
participation (IACHR, 2009). Even though the Commission did not reach a final
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decision on the case, this episode strengthened and legitimized the community’s
legal consciousness, their shared beliefs, and ideas related to the acceptance of legal
concepts and compliance. According to Campusano, this opened “a window”and
gave “new hope for the defence of the Huasco Valley”(Protestbarrick.net, 2009).
The process of legalization of the dispute reached its peak in 2011–13 when all three
groups of community rightsholders from the Huasco Valley filed various legal
claims against the company. However, some differences started to emerge. While
activists and NGOs saw the legal battle as a new means to continue the protests and
campaigns, others from the valley decided to sue Barrick, looking for compensation.
As explained by one grape farmer, “We need to get compensation from them if they
dry our water supplies”(interview, community leader A, 2012). A local community
leader commented: “the mine won’t ever leave the valley and the government will
always back them so they need to pay us compensation for the damage they’ve
already done and comply with the environmental permit they received”(interview,
community leader A, 2012).
Consistent with the rights mobilization literature, this transformation in the legal
consciousness of the affected community was facilitated by the role of “cause
lawyers”(Sarat & Scheingold, 1998). Cause lawyering consists of using legal skills
to bring about social change, and it tends to have an ambivalent relationship with
social movements, swinging between serving them and seeking control (see Sarat &
Scheingold, 2006). In particular, much of the legalization of the dispute was driven
by the work of a lawyer named Lorenzo Soto, who first met a group of Diaguita in
2012. In terms of legal consciousness, it is significant that they told Soto that they did
not believe they could derail the project through a legal challenge, because it already
had a license and had been under way for years (Globe and Mail, 2014). In October
2012, the Copiapó Court of Appeals accepted the constitutional complaint (writ of
amparo) submitted by Soto and signed by five hundred Diaguita residents against
Pascua-Lama (El Mostrador, 2012). Then in April 2013, following the collapse of
part of the canal system at Pascua-Lama, Soto obtained a first suspension of Pascua-
Lama via the Copiapó Court.
Phase III: Suspended Between Legal and Organizational Logics (2013–19)
This latest phase is dominated by legal ambiguity and uncertainty following the
suspension of mining by the SMA. Despite a lengthy investigation and judicial
process, as of May 2019, there has not been a resolute judicial outcome, and it is
unclear whether Barrick will have to permanently close the mining project. As a
consequence, the future of Pascua-Lama and the Huasco Valley remains uncertain.
This stalemate profoundly affected the community’s legal consciousness and rights
mobilization. The community is increasingly divided between two alternative logics
to solve the Pascua-Lama dispute. A fraction keeps following the logic of “rights,”
relying on judicial claims and governmental protection. Another follows the busi-
ness organizational logic of “bargaining”through forms of “privatized remedy.”
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Divided and Depressed Rights Mobilization
Until 2013, the community was largely united against the Pascua-Lama project and
rights mobilization remained strong. During the following phase, rights mobiliza-
tion weakened and the community became deeply divided. There are two main
causes of this shift. First, the mining suspension created a situation of ambiguity and
legal uncertainty that negatively affected the community’s legal consciousness. It
revived mistrust of the state and cynicism about the real possibility of stopping the
mining. Second, the uncertainty exacerbated preexisting differences within an
exhausted community between those motivated by strong social norms about the
(sacred) value of water and others acting mainly out of economic concerns for this
essential natural resource.
Barrick now became more effective in exploiting this fault line. In fact, following
a failed attempt to obtain the permanent closure of the project in court, lawyer Soto
convinced part of the Diaguita community to come to an out-of-court settlement with
Barrick. That was concluded in January 2014, whereby the plaintiffs agreed to drop
all accusations against Barrick. Four months later, Barrick managed to sign a
UNGPs-inspired Memorandum of Understanding (MoU) with these and other
community groups (fifteen out of twenty-two Diaguita neighborhoods). In a logic
of “bargaining”their rights, immediately after the ratification of the MoU, lawyer
Soto suggested that the Diaguita people could be paid an “indigenous royalty”to
resolve the conflict (Reuters, 2014).
The arbitrations and MoU marked a cleavage in the mode of rights mobilization.
Having lost faith in judicial and governmental redress mechanisms, part of the
community opted for what we call here “privatized remediation.”As Brigham
(1996: 313) notes, “The remedial form of law in society puts forth the settlement
of conflict as an overriding concern.…It follows and is an extension of the
progressive revolt against formal processes in the courts.”On the other hand, OLCA
and the Huasco Valley activists formally and informally contested the MoU process,
arguing that it lacked open participation and transparency and involved manipula-
tion, bribes, intimidation, and coercion (Wiebe, 2015). Our interviews confirm that
those taking part in the MoU process received a monthly payment “for our time and
participation in the process”(interview, community leader C, 2019). According to a
local leader, “they were also discussing compensation for future impacts, that is like
mortgaging our conscience …meaning if Barrick destroyed a glacier in the future
and we complained they would reply ‘but we’ve paid you for that!’” (interview,
community leader B, 2019).
Crucially, privatized remediation is an agreement between private parties, beyond
state jurisdiction. This is problematic because the Chilean government “takes no
responsibility for compliance or the legality of the agreement”and “does not support
or monitor the negotiation or the execution,”thus the balance of power “is asym-
metrical and communities are without legal recourse”(activist Lucio Cuenca, cited
by Wiebe, 2015: 13). This was confirmed as in June 2014, a formal claim against the
MoU filed to the Indigenous Affairs Department (CONADI) was rejected because
the state could not intervene in a private agreement between Barrick and the
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Diaguita. One claimant later commented that CONADI “turned its back on us”
(El Ciudadano, 2018). Divisions within the community escalated as the community
leaders that signed the MoU were publicly called “vendidos”(sellouts) by the
activists, while those who signed the MoU accused the activists and OLCA of
making a living out of this dispute, being funded by foreign governments who want
permanent conflict in the Valley.
Only a fraction of the indigenous community—led by OLCA and the Huasco
Valley activists—kept fighting Barrick through judicial mechanisms, asking for the
permanent closure of the mine. Between 2016 and 2017, the SMA completed a new
investigation on the environmental impact of the mine, decreeing in January 2018,
the “total and definitive closure”of Barrick’s Pascua-Lama mine in addition to the
imposition of a fee of $11.5m, citing serious environmental infractions (SMA,
2018). In a series of press releases, OLCA celebrated this remarkable success by
recalling a seventeen-year conflict during which they witnessed “all the strategies of
division, co-optation, interventions, harassments, discredit …that produced exhaus-
tion and insecurity that deeply impacted the territory”(OCMAL, 2018). However,
according to our sources, most of the locals remained hesitant about the outcome. As
one of the residents told us, “I’ll believe it when I see it”(interview, community
leader C, 2019). Sergio Campusano cautiously noted after the January 2018 ruling:
“One could say that we won a battle, but not the war to mining contamination in our
territory.”In March 2019, Chile’s Supreme Court revoked the SMA’s decision and
sent the case back to the Environmental Court for review by a different panel of
judges. The new judicial process could last for months, further extending the com-
munity’s perception of legal ambiguity and uncertainty.
Legal Ambiguity and the Managerialization of Human Rights
The prolonged condition of legal ambiguity and uncertainty is hardly surprising as
judicial processes are notoriously lengthy, contingent, and indeterminate (McCann,
2010). However, it is interesting to note that Barrick exploited this situation by
changing its counter-mobilization strategy. While in the previoustwo phases it relied
on privatized welfare to obtain a social license to operate, during this period it adopts
law-like corporate structures and mechanisms inspired by the UNGPs. They demon-
strate formal attention to human rights discourses, community dialogue, and trans-
parency, lending much-needed legitimacy to the business organization. Drawing on
Edelman (2016), we call this process the “managerialization of human rights.”In
essence, this consists of adopting business organization structures that mimic the
public legal order in form; for example, by internalizing dispute resolution procedures
and mechanisms (see Monciardini, Bernaz, & Andhov, 2019). They demonstrate
attention to law and, therefore, lend legitimacy to organizations. At the same time,
they allow to maintain “sufficient flexibility to preserve managerial prerogatives and
practices that are seen as advancing business goals”(Edelman, 2016:30).
Our data show that Barrick decided to launch its Human Rights Compliance
Programme in 2011, inspired by the UNGPs. Consistent with Barrick’s
de-territorialized form of private authority, this had nothing to do with the
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Pascua-Lama case. In fact, it was a global response to the vast echo provoked by an
investigation revealing human rights violations in its Porgera mine, in Papua New
Guinea. Essentially, the Programme entailed the adoption of corporate policies and
processes, such as human rights due diligence processes, company-based grievance
mechanisms to report violations, and corporate structures to investigate them
(Barrick Gold, 2017). Jonathan Drimmer, former Deputy Director of the US Justice
Department, was hired to oversee its implementation, and John Ruggie, the architect
of the UNGPs, was appointed as Special Advisor. In 2013, the new Programme
spread to Barrick’s Pascua-Lama’s operations. Its application included the creation
of a network of “offices located in the communities to directly engage with local
stakeholders”and the adoption of a variety of tools “including a grievance mech-
anism, public meetings, door to door visits …. On average in 2014, [their] team
engaged with over 650 stakeholders each month”(BHR Resource Centre, 2015)
While OLCA and the Huascoaltinos activists constantly denounced Barrick’s
human rights strategy as a subtle attempt to divide and co-opt a “fragile”and
“disoriented”community (Asamblea por el Agua del Guasco Alto, 2015), according
to Barrick, the launch of its internal grievance mechanism in the Huasco Valley was
finally “giving the communities a voice”(Barrick Beyond Borders, 2013). We found
that these new practices allowed Barrick to exert greater control over the territory
and the resolution of the Pascua-Lama dispute.
Ultimately, OLCA and the Huascoaltinos activists’judicial engagement was
instrumental in the SMA decision to order the definitive and total closure of the
mine in January 2018. This decision halted the process of disintegration of the
community and finally granted legal certainty. However, the SMA did not revoke
Barrick’s environmental permit. Thus, the company could interpret the sentence as a
“re-evaluation process,”ordering only “the closure of existing facilities on the
Chilean side of the project”(Barrick Gold, 2018). Finally, in March 2018, a pro-
market liberalization president, Sebastián Piñera, took office, replacing the socialist
President Bachelet. One year later, Chile’s Supreme Court decided to reexamine the
permanent closure. Barrick commented that “last month [Barrick CEO] met with
Chile’s Minister of Mining Baldo Prokurica,”and “Chile is an investor-friendly
country, with a significant mineral endowment, and which encourages the devel-
opment of mining projects”(Barrick Gold, 2019).
DISCUSSION
Our study has analyzed how a community, affected by a large-scale mining project,
has mobilized its rights in relation to both the transnational business organization
(Barrick Gold) and the domestic legal field (in Chile). We were motivated by two
shortcomings in the existing BHR literature. First, there is a lack of studies that
interrogate, in a specific context, the linkages between transnational voluntary
initiatives—such as the UNGPs—and domestic governance structures and dynam-
ics. Second, the BHR literature tends to adopt a formalistic and exogenous approach
to law. By deploying a set of socio-legal concepts—rights mobilization, legal
consciousness, and legality—we have provided a more critical and contextual
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analysis of the dynamics of firm-community BHR disputes (Bartley, 2018;
Banerjee, 2018; Levy et al. 2016). Taking the perspective of the affected local
community, we have been particularly focused on how rightsholders mobilize their
rights in the interplay between the differing logics of the business and legal fields. In
this section, we further discuss our findings, offering theoretical reflections about the
dynamics of rights mobilization in BHR disputes, particularly identifying two key
dynamics: de- and re-territorialization on the one hand, and legalization and privat-
ization of the dispute on the other.
Figure 3 provides a visual overview of our theoretical analysis of how rights
mobilization evolved in our case over time, identifying key processual dynamics of
rights mobilization in the interplay between the domestic legal field and the trans-
national organizational field. With Edelman (2016), we can theorize the different
core logics of the two overlapping fields, generating tensions that became explicit in
Phase II, then exploding in Phase III. In particular, the legal field tends to frame
rights mobilization in terms of “entitlement,”meaning the normative criteria accord-
ing to which an individual or a group should be qualified to enjoy rights. On the other
hand, as Branco (2008: 18) noted, the business organization “feels more comfortable
when dealing with wants than with rights; …satisfying wants implies the use of
concepts like cost, benefit and price,”framing the world in terms of resources
management and efficiency. This business logic repeatedly emerges in our case.
For example, Barrick focuses on water and the glaciers as resources to be managed
efficiently (Li, 2017), responding to rights mobilization by offering forms of “pri-
vatized welfare”to satisfy the material needs and wants of the community. Barrick
consistently tries to bargain human rights, offering benefits to the community. In the
logic of the legal field, these issues are framed very differently: the (un)lawful
conduct by Barrick, irregularities, lack of compliance with the company’s environ-
mental permit, and failure of protecting the environment and the affected community
(Phase II).
Drawing on Brigham’s(1996) work on “rage, rights, and remedy,”our study has
revealed that rights mobilization in the Valley was initially expressed by a united
community through public “rage,”against both the Chilean state and Barrick, fueled
by a mix of religious values and economic motives (Phase I). This rage was an
expression against the de-territorial and translocal nature of the dispute. The com-
munity was then gaining trust in the legal field, partly because of political changes in
Chile, increasingly framing the situation through a “rights”lens: legal claims,
relying on governmental rules, and legal opportunity structures (Phase II). Yet, then,
the community became deeply divided (Phase III), torn apart between a fraction that
continuously relied on judicial mechanisms and another that opted for out-of-court
arbitration and UNGPs-inspired “privatized remedy.”Each of these processual
dynamics was facilitated by different intermediaries: the clergy and NGOs; cause
lawyers; negotiators and arbiters.
While most of the BHR literature appears polarized along the divide between
voluntary UNGPs and the adoption of a binding UN treaty (Baumann-Pauly &
Nolan, 2016; Deva & Bilchitz, 2017), we argue that both perspectives are based
on the assumption of the decreased importance of nation-states and the need to fill
Rights Mobilization
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Phase I [2000 –2006]
Dispute Antecedents
TranslocalBHR governance.
Direct and conflictual firm-community
interacon.
Phase II [2006 - 2013]
Dispute Legalizaon
Re-centeringtheState: Legality.
Indirect and dialecc firm-community
interacon mediated by legal and public
forums.
Legal Field
Translocal
rights mobilizaon
Barrick
Privazed
Welfare
Rage
Rage
Legal Field
Legalizaon of
rights mobilizaon
Barrick
Privazed
Welfare
Legal fines and regulaon
Legal
claims
Legal Field
Divided and depressed
Barrick
Rights
Managerializaon
Privazed
remedy
Legal
claims
Phase III [2013 - 2019]
Suspended Between Legal and
Organizaonal Logics
Legal Ambiguity and Rights Managerializaon.
Firm-community interacon becomes partly
direct and dialogical
Ambiguous legal rulings
Rights Mobilizaon
against Barrick Gold
Claiming for
Human Rights Protecon
Divided and Depressed
Rights Mobilizaon
rights mobilizaon
Figure 3: The Community’s Changing Rights Mobilization Over Time
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“governance gaps”(Kobrin, 2009; Ruggie, 2014,2017). During the last two
decades, the conventional wisdom has been that the problems arising from the
globalization process are rooted in the asymmetry between increasingly intercon-
nected economic activities and the territory-bound validity of state regulation and
bureaucracy (Habermas 2001; Scherer et al., 2016). Poor and middle-income gov-
ernments have been often described as too submissive to powerful corporations
(Banerjee, 2008, 2010) and Western governments as privileging sovereignty and
non-intervention over the protection of human rights (Kobrin, 2009). Thus,
extraterritorial, international, and voluntary multistakeholder “fast-track”solutions
have been invoked to strengthen human rights protection, bypassing the state
(Bernaz, 2013; Rodríguez-Garavito, 2017; Skinner et al., 2013). Our study main-
tains that this view should be reversed. Inspired by Bartley’s(2018: 45), we found it
more fruitful to start from the premise that “sites of implementation are crowded with
actors, agendas and rules,”rather than treating them as empty spaces waiting to be
filled by transnational standards. Hence, we have analyzed in detail the processes of
rights mobilization from below (Misoczky & Böhm, 2015; Misoczky et al., 2017)and
the linkages between private transnational rules and domestic judicial and govern-
mental enforcement mechanisms. Theorizing the changing nature of rights mobiliza-
tion in the Pascua-Lama case (Figure 3), our study highlights a more dynamic and
dialectical relationship between processes of de-territorialization and
re-territorialization of BHR governance and legalization and privatization of human
rights disputes.
Dynamics of De- and Re-territorialization
Here we introduce a dialectic perspective in the analysis of BHR governance that
conceives of de- and re-territorialization dynamics as entangled. As already noted by
Rodríguez-Garavito (2017), much of the current debate about BHR governance
appears to take a “top-down”approach disconnected from the struggles of local
and national communities and organizations engaged in campaigns, litigations, and
negotiations on the ground.
Our study revealed a tension between two models of governing BHR conflicts. On
the one hand, transnational business organizations like Barrick try to impose a new
form of de-localized transnational private authority, bypassing and replacing the
traditional role of the nation-state (Ó Tuathail & Luke, 1994). As illustrated by other
BHR analyses (see Coumans, 2017; Human Rights Clinics, 2015; Kaufman &
McDonnell, 2016), corporate decisions are taken independently from local identities
and ways of life, based purely on organizational logics of resource efficiency and
good managerial practices. In the absence of the state, firm-community interactions
become inevitably more direct and are reorganized through the reality of transna-
tional corporations increasingly engaged “in authoritative decision making that was
previously the prerogative of sovereign states”(Cutler et al. 1999: 16; Scherer et al.,
2016). This is evident in Phase I, characterized by Barrick’s de-territorialized private
authority, fully supported by the Chilean state. Drawing on Banerjee (2018), we call
this governance framework “translocal business and human rights”because the
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national dimension is bypassed in favor of either transnational or local dynamics.
Firm-community interaction is conflictual (“rage”), without being mediated by
public fora. We found that rights mobilization in Phase I mirrors corporate transna-
tional dynamics, operating through networked advocacy groups (Land, 2009). This
“deterritorialization”of the dispute reemerged in Phase III, as Barrick’s new form of
corporate BHR governance, which we call “privatized remediation,”inspired by the
UNGPs, is being implemented “top down”in the Huasco Valley, based on changes
in its global corporate human rights policy.
However, on the other hand, our case has shown that there are also less explored
re-territorialization dynamics, suggesting the emergence of a “place-conscious”
model of BHR governance (Bartley, 2018: 258). They are partly based on restoring
the authority away from the company towards more traditional state-centric gover-
nance due to the perceived failure of business organization in performing a regula-
tory role. The capacity of Chile’s state and legal system allowed for an increased
trust of the community in the legal field, leading to a re-territorialization of the
dispute (from Phase I to II), meaning that firm-community interaction became
indirect, mediated by the logic of legality and public fora, “re-centering the state”
(Bartley, 2014;2018). From 2006, hence, rights mobilization became reconfigured
from translocal actions to domestic dynamics: all community groups were increas-
ingly attracted into strategic legal actions, reflecting and deepening reliance on
domestic legal frames and judicial redress mechanisms. Barrick, in this phase, had
no choice but to comply with domestic rules (e.g., self-denounce to authorities) and
suspend the mine.
Dynamics of Legalization and Privatization of the Dispute
Another dialectic relationship that emerges from the study concerns legalization and
privatization dynamics. The legalization of the dispute consists of transferring blame
into more formal legal claims. Our study has shown the importance of rights
mobilization and legal consciousness and the unique perception of injurious expe-
rience suffered by the affected community (Felstiner et al., 1980; McCann, 2010),
particularly in the early stages of rights mobilization (naming and blaming), to
explain the evolution of the dispute and the possible involvement of state authorities
and formal legal institutions (claiming). Against the idea of law as an exogenous
force, whereby access to justice should be granted to the affected community by
either the international community or by privatized transnational governance
(Kobrin, 2009; Ruggie, & Sherman, 2017; Scherer et al. 2016), our study stressed
the “constitutive power”of law (Brigham, 1996). This means to recognize that
individuals and groups think as well as act on the basis of legal values and
understandings that shape their perceptions, aspirations, and calculations (Ewick
& Silbey, 1998; McCann, 2010). This can be seen most clearly in Phase II as all the
community’s groups are increasingly attracted into strategic legal actions. Thus,
we agree with Bartley that treating the state “as just one of many relevant actors and
institutional structures in fields of transnational governance would be a mistake, as
states are unique in their capacity to shape market access on a large scale and
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institutionalize the rights of citizens and firms within their borders”(2014: 95). It is
important to realize that in times of, what we called, de-territorialization of human
rights governance, the state and the legal field are still present, providing access to
legal remedy to rightsholders. BHR analysts should therefore not forget the pos-
sibilities offered by the legal and regulatory systems in specific national circum-
stances. The legalization of the Pascua-Lama dispute constitutes a “paradigm
change,”as the founder of Barrick, Peter Munk, said at Barrick’s 2013 AGM,
due to “new governments, punitive governments, more aggressive regulatory
systems, driven by a whole cadre of trained and highly competent lawyers”
(CHRE, 2015).
Our case shows that Barrick continuously strives to privatize the dispute,
avoiding the intermediation of legal logics and public fora, using a range of
counter-mobilization strategies, from private welfare programs (Phase I and II) to
forms of privatized remedy (Phase III). Both corporate strategies mimic the public
order in form to gain legitimacy, concealing the prevalence of business logics and
private authority. “Privatized welfare”is very common in the extractive industry and
well-documented (Banerjee, 2018). It entails a vast investment by the business
organization in the provision of public goods—e.g., housing, education, and ser-
vices for disabled children (Barrick Beyond Borders, 2009)—that are usually state
prerogatives. In our case, privatized welfare was rejected by the community (Phases
I and II) as economic benefits were widely perceived as incommensurable to the
value of water.
“Privatized remedy”consists in devising law-like corporate policies and struc-
tures (e.g., grievances mechanisms and due diligence processes) for dispute man-
agement and resolution similar but alternative to the legal system. This can be
theorized as a form of “managerialization of law”(Edelman, 2016), or, more
precisely, managerialization of rights (Monciardini, Bernaz & Andhov, 2019). This
was achieved through the creation of corporate structures and processes in the form
of an UNGPs-inspired MoU, which was designed to lend legitimacy to Barrick in the
eye of the legal field, while maintaining managerial flexibility, keeping a firm eye on
the main goal of gaining a social license to operate for the Pascua-Lama mine. It
appears as a form of “bargaining in law’s shadows”(Mnookin & Kornhauser, 1978),
enabled by mistrust toward judicial solutions in a context of legal ambiguity
(Edelman, 2016). Analytically, this is an important point: corporate BHR programs
are not only implemented in the face of an absent state, or within ”governance gaps,”
as many authors argue (Ruggie, 2014,2017). Instead, in our case, the corporation’s
UNGPs-inspired program actively counter-acted the legal field. Privatized remedi-
ation appealed to part of the community because it offered a legitimate settlement,
through a predictable and formally independent remedy process, to the victims of
human rights abuses, allowing them to move forward. However, privatized remedy
mechanisms devised by Barrick weakened rights mobilization, and, during Phase
III, we found the affected community increasingly divided, pulled in opposite
directions by the quasi-magnetic force (Martin, 2003) of the organizational and
legal fields.
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CONTRIBUTIONS AND POLICY IMPLICATIONS
Analyzing the dynamics of rights mobilization by the community and the trans-
formations of the Pascua-Lama dispute, our study has provided three relevant
contributions to the debate on BHR regulation. First, going beyond the current
BHR policy debate, polarized between transnational “new governance”and inter-
national legally binding solutions, we argue that both approaches overlook rights
mobilization from below as they tend “to move in one primary direction: from
‘higher’international frameworks to ‘lower’individual actors”(Melish & Meidin-
ger, 2012: 313). Drawing particularly on Bartley (2018) and mobilizing a body of
socio-legal research and conceptual tools (Edelman, 2016; Ewick & Silbey, 1998;
McCann, 2010), we have advanced a broader analytical model of studying BHR
disputes, centered around three intertwined elements: rights mobilization, legal
consciousness, and legality.
In particular, we have found that effective human rights protection and redress
depends, to a large extent, on how and why the affected community groups
mobilize their rights. The UNGPs and a large part of the BHR community tend
to underline the role of exogenous factors—e.g., state-based or corporate-led
mechanisms—in providing effective redress to victims of human rights violations.
However, our analysis shows that endogenous factors, such as “legal conscious-
ness”and “rights mobilization,”are equally, if not more, relevant to explain access
to effective redress. Arguably, judicial or non-judicial mechanisms would have
been of very limited value if the Huasco Valley residents did not mobilize their
rights against the Pascua-Lama project. As Melish and Meidinger (2012:313)
note, there is a tendency to “undervalue the critical role of local actors in both
creating relevant human rights meaning in accordance to local values, mores and
conditions and, equally important, in holding actors accountable to such meanings
in locally effective and meaningful ways.”We argue that it is through strength-
ening its legal consciousness that the community achieved a legalization and
hence, what we call, a re-territorialization of the dispute. In other words, the rights
mobilization from below led to a significant shift in the dynamics between the
business and legal fields.
Second, our analysis stresses the major role of domestic governance and the
constitutive power of legality. This is in line with Bartley’s(2018) call for going
beyond the imaginary of “empty spaces”toward “place-conscious transnational
governance”by rethinking much of the conventional discourse of “bypassing the
state”that informs the BHR debate. In fact, both the advocates of the UNGPs
(Ruggie, 2014) and those supporting a legally binding UN Treaty (Deva & Bil-
chitz, 2017) tend to start from the same premises of “governance gaps”and the
inadequacy of domestic laws in a context of economic globalization (Habermas
2001; Kobrin, 2009; Scherer et al., 2016). Instead, we have found that this cen-
trality of law persists even when the state is absent (Phase I). For example, the
Huasco Valley community felt strongly that “the State of Chile [that] has not
respected our basic rights”(Protestbarrick.net, 2010). This is because, “the law
is real, but it also is a figment of our imagination,”as Scheingold puts it (1974:3).
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We suggest that this paradox can be explained by going beyond the current
emphasis on instrumental dimensions of law to appreciate the “constitutive power”
of law as “legality.”“Constitutive”means that “legal conventions routinely pre-
figure, delimit, and express the expectations, aspirations, and practical world-
views of subjects”(McCann, 2010: 527). Accordingly, as Brigham (1996: 313)
notes, despite being “ostensibly …opposed to the legal process,”even the provi-
sion of a “privatized remedy”by Barrick (Phase III) “in practice depends on the
form epitomized by courts and lawyers as a foil.”
Third, our study has revealed that, by adopting the UNGPs framework, Barrick
has developed a new form of privatization of the dispute, which amounts to a
corporate counter-mobilization strategy that we call “privatized remedy.”This
strategy consists in devising law-like corporate policies and structures
(e.g., grievances mechanisms and due diligence processes) for dispute management
and resolution formally similar but alternative to the legal system. The findings are
consistent with other studies in which company-led grievance mechanisms inspired
by the UNGPs were described as inappropriate and ineffective (Kaufman & McDon-
nell, 2016; SOMO, 2014)—some also involving Barrick (Coumans, 2017; Human
Rights Clinics, 2015; Mining Watch Canada, 2017). However, these other cases
were taking place in so-called areas of limited statehood (Borzel & Risse, 2010). In
this sense, operational grievance mechanisms offered the victims some form of
remedy that they would have otherwise unlikely received.
Our data has revealed that the adoption of this dispute privatization strategy
followed a period in which the Chilean state and legal system were very active
(Phase II—legalization of the dispute); the community had filed legal claims
against Barrick and the SMA investigation was still ongoing. As already men-
tioned, this form of “privatized remediation”appears as a form of “bargaining in
law’sshadows”(Mnookin & Kornhauser, 1978). Drawing on Edelman (2016), we
found that this form of “managerialization”of human rights was enabled by a
context of legal ambiguity and uncertainty (the suspension of the Pascua-Lama
project). Effectively, the implementation of the UNGPs in the Pascua-Lama case
weakened rights mobilization and divided the affected community, giving Barrick
greater control over the dispute as compared to complaints handled through the
formal legal system.
Although the UNGPs explicitly state that operational-level grievance mech-
anisms should not be used “to preclude access to judicial or other non-judicial
grievance mechanisms”(Principle 29), this statement is ambiguous. Barrick
could claim that the company is not precluding access to justice. On the con-
trary, it is implementing due diligence and operational grievances mechanisms
in accordance to the UNGPs. In effect, as Edelman (2016: 39) noted, the major
risk with this process of managerialization of law is that ineffective or indeed
counterproductive human rights corporatestrategiescometobewidely
accepted and promoted by policy makers, legal institutions, and administrative
agencies “indicia of compliance”with human rights laws without evaluating
their effectiveness (Monciardini, Bernaz & Andhov, 2019).
Rights Mobilization
https://www.cambridge.org/core/terms. https://doi.org/10.1017/beq.2019.49
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Based on our analysis of the Pascua-Lama case, we suggest that policy makers be
dubious of the “new governance”turn in BHR policies embodied by the UNGPs,
which is advocating a stronger regulatory role of business organizations. While
there is an argument for operational grievances mechanisms to be implemented
in areas of limited statehood, ideally engaging the victims or their representative
in a truly participatory process (Kaufman & McDonnell, 2016), we suggest
that in most other cases this process risks to follow a business “compensatory
logic”(Thompson, 2017: 60), rather than promoting effective remediation. Thus,
our recommendation to policy makers is to strengthen domestic governance by
enhancing rigid and prescriptive legislative rules for business organizations to
avoid legal ambiguity, strengthen specialized tribunals, and administrative agen-
cies. They could also demand multinational business organizations that are serious
about human rights to lobby for legislative changes in all the countries in which
they operate, rather than focusing mainly on voluntary transnational standards and
principles, bypassing the state.
SUPPLEMENTARY MATERIAL
To view supplementary material for this article, please visit https://doi.org/10.1017/
beq.2019.49.
ACKNOWLEDGEMENTS
We are grateful to the comments received at a presentation of an earlier version of this
article at the second Business and Human Rights Young Researchers Summit at the
University of St. Gallen, Switzerland, in April 2017. We would also like to thank Juliane
Reinecke, as BEQ’s handling associate editor, as well as the three reviewers for their
insightful comments on earlier versions of this article. We gratefully acknowledge the
contribution by PhD researcher Chia-Hao Ho who helped with some aspects of the data
handling and presentation. Some of the data for this research was made possible in part
thanks to funding from European Union Horizon 2020 Marie Curie Individual Fellowship,
project number 707485.
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RAJIV MAHER is postdoctoral research fellow at the Department of Geography, Trinity College
Dublin. He was previously an assistant professor at Université Paris-Dauphine. He has a PhD
in management from Cranfield University. His research interests lie at the intersection of
indigenous and rural community organizing and human rights, territorial governance and
dynamics, ecological conflicts over extractives projects, and corporate social responsibility.
DAVID MONCIARDINI is senior lecturer at the University of Exeter Business School, UK. He has
an interdisciplinary background that spreads across sociology, management, and law. His
research focuses on the relationship between business organizations and society and its
Rights Mobilization
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regulation. This includes research on business and human rights, social and environmental
business accountability, and the governance of circular economy. Monciardini has published
in international journals such as Business & Society and Regulation & Governance.
STEFFEN BÖHM is professor in organization and sustainability at the University of Exeter
Business School, UK. His research focuses on political economy, political ecology, and
governance relations. He has published five books: Repositioning Organization Theory
(Palgrave), Against Automobility (Blackwell), Upsetting the Offset: The Political Economy
of Carbon Markets (Mayfly), The Atmosphere Business (Mayfly) and Ecocultures:
Blueprints for Sustainable Communities (Routledge). A new book, Climate Activism,is
forthcoming with Cambridge University Press.
Business Ethics Quarterly
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