Aintzane Márquez Tejón, PhD student at Universidad Carlos III de Madrid and a researcher on strategic litigation with SOMO—Centre for Research on Multinational Corporations.
Strategic litigation has proven to be a potent force for social change, significantly influencing public and corporate policies and contributing to develop judicial due diligence standards and binding norms. However, there is a crucial gap in addressing the rights of people disadvantaged by the system, such as women, girls and gender-diverse people, within the realm of corporate accountability. For this reason, amongst many others, it is imperative for all stakeholders, including legal professionals, to adopt a comprehensive approach that fully integrates an intersectional and anti-colonial perspective. This approach is necessary to identify, prevent, mitigate and account for corporate misconduct, acknowledging the complex interplay of gender, race, class, and colonial legacies.
This blog underscores the pivotal role of considering the perspectives of vulnerabilised and racialised communities within corporate due diligence frameworks, including corporate accountability strategies. By examining specific cases, it shows the instrumental power of strategic litigation as an advocacy tool for human rights, spotlighting the gender impact of corporate abuses. Additionally, it underlines the importance of integrating lessons and experiences from the Global South into broader strategic litigation learnings, as other experts have highlighted, enlightening us and fostering a decolonial approach.
The Chilean case: defective contraceptives and reproductive health
A striking example of the gender impact of corporate misconduct is the case of defective contraceptives in Chile. In 2020, it was revealed that a significant number of contraceptive pills distributed in public health facilities in Chile were faulty, leading to numerous unplanned pregnancies. Women’s Link Worldwide and Miles Chile took legal action before UN Special Procedures, accentuating the state’s failure to adequately monitor pharmaceutical quality and the companies’ negligence in ensuring product safety.
The case attracted international attention, with multiple United Nations experts recognising it as an issue of structural discrimination against women. The Chilean government faced pressure to respond, resulting in a legislative proposal (not passed) to improve regulatory oversight and accountability for pharmaceutical companies. Although some financial compensation was secured through agreements with the manufacturing transnational corporations, the case underscored the need for more robust mechanisms to prevent and address such violations.
In that vein, the Chilean State now faces a new lawsuit by seven women who experienced unintended pregnancies due to these defective contraceptives in 2020. This lawsuit demands that the State takes responsibility for the economic, emotional, and life project disruptions caused by the unintended and unplanned pregnancies. The lawsuit points out inadequate quality control by the responsible institutions in acquiring the contraceptives and that the professionals responsible for distributing the medications were not sufficiently trained to identify defective batches and prevent their distribution. Moreover, women who consumed the defective contraceptives were not timely and directly informed about the issue to stop using the pills. Besides compensation for the seven complainants, the lawsuit proposes a series of non-repetition measures to prevent such errors. This approach emphasises how strategic litigation goals extend beyond the specific case to have a broader impact on women from most marginalised or impoverished communities.
The Colombian case: glyphosate, conflict and reproductive justice
In Colombia, the case of Yaneth Valderrama also exemplifies an intersectional approach in strategic litigation. Yaneth, a pregnant woman, was exposed to glyphosate, a widely used herbicide, during an aerial fumigation campaign targeting illicit crops. Her subsequent health deterioration and death brought attention to the broader issue of reproductive rights violations linked to corporate and state practices in agricultural sectors.
The case, litigated by the Center for Reproductive Rights before the Inter-American system, emphasised the intersectional impacts on women during conflict, particularly those in rural and marginalised communities. In 2018, the IACHR admitted the case, citing the lack of adequate investigation by national authorities and the inappropriate handling of the complaint by military justice, which is not considered suitable for such cases.
In addition, in 2022, due to different NGO’s efforts, the Truth Commission in Colombia published a landmark report titled “My Body is the Truth: Experiences of Women and LGBTIQ+ People in the Armed Conflict,” referencing the case of Yaneth. The report not only acknowledges reproductive violence as a distinct form of aggression but also proposes a framework for reparations, emphasising the need to consider intersectionality in transitional justice mechanisms. Moreover, in November 2023, the IACHR held its first hearing focused on the impacts of agrochemicals in Latin America, particularly on the reproductive health of women and girls in vulnerable communities in countries like Colombia, Brazil, and Argentina. The hearing emphasized strengthening legal and judicial guarantees to ensure affected individuals can effectively access justice.
The impact of pesticides, particularly glyphosate, has led to significant litigation. Recently, cases involving Bayer (which acquired Monsanto) have again brought these issues to the forefront. Yaneth Valderrama’s case remains one of the most emblematic legal cases, illustrating the role of corporations and the gender-specific repercussions of herbicide use. Interestingly, Bayer also faces multiple legal challenges related to reproductive health devices, which again, of course, has a gender-specific impact in Spain, The Netherlands, and Australia.
The South African case against Anglo American: environmental justice in Kabwe
In South Africa, the litigation against Anglo American South Africa Ltd (AASA) regarding lead contamination in Kabwe, Zambia, demonstrates the potential of strategic litigation to address historical corporate abuses. The case, litigated by South African Attorneys, Mbuyisa Moleele Attorneys, in collaboration with UK-based human rights lawyers Leigh Day, representing approximately 100,000 affected residents, argues that AASA failed in its duty of care by not preventing lead poisoning from its mining operations. By pursuing legal action in South Africa, the victims can take advantage of the South African class action procedure, a vital mechanism for facilitating their access to justice.
The case brings attention to several important aspects from an intersectional feminist perspective. The legal process involves analysing the different effects of environmental contamination on children and women, especially those who are and who can become pregnant. This approach is crucial for addressing the various forms of discrimination that these groups experience.
Despite initial judicial setbacks, the case also brought significant international attention to the impacts of mining activities on the environment and gender health. The involvement of various NGOs and United Nations experts as Amici Curiae, emphasised the importance of corporate adherence to human rights principles, even retroactively.
In December 2023, the High Court in Johannesburg dismissed the class action certification. The Court argued that the class action was unfeasible and could set a problematic precedent, estimating that it could take a decade to organise the claimants. Additionally, the Court highlighted the difficulty of holding a company accountable for actions that occurred half a century ago based on current knowledge and standards. However, on April 19, 2024, the Court granted permission to appeal the December judgment, stating that there were compelling reasons to grant the appeal due to the evolving class action law in South Africa and the current matters of law that directly implicate constitutional rights. The Kabwe Claimants will now take their case to the Supreme Court of Appeal of South Africa later this year.
Lessons from the Global South and the importance of integrating a gender decolonial perspective into strategic litigation
This blog delves into the connection between sexual and reproductive rights, gender justice, and corporate accountability through strategic legal actions. The challenges related to contraceptives in Chile, the effects of glyphosate on reproductive health in Colombia, and the environmental justice case in Kabwe show the unequal impacts of corporate misconduct on women and other vulnerabilized groups. These cases also underscore the urgent need for a gender and intersectional approach in corporate due diligence policies and practices, including strategic litigation.
We must also remember that significant barriers to justice, including the complex nature of global corporate structures and neo-colonial dynamics in international, regional and national laws, persist and demand our attention to ensure effective and timely remedies. We need a framework that addresses power imbalances and structural inequalities, focusing on local and regional efforts to establish practical judicial and regulatory standards. By centring the voices and experiences of these groups, we can develop more inclusive and effective strategies for promoting corporate responsibility and advancing human rights on a global scale.
For all these reasons, it is crucial to work together to prevent, punish, and address corporate abuses from a gender, intersectional, and anti-colonial perspective. Reflecting on the above cases might make us recognise the importance of adopting a holistic and inclusive approach to navigating corporate accountability issues.
This contribution is part of the project “Acceso a la justicia en el contexto de abusos corporativos: la litigación como estrategia de resistencia y de empoderamiento a las víctimas (ACCJUSTEDH)” (ICI023/23/000001), financed by the International Catalan Institute for Peace.
Suggested Citation: A. M. Tejón, ‘An intersectional feminist strategy for corporate accountability: using strategic litigation to protect reproductive rights‘, Nova Centre on Business, Human Rights and the Environment Blog, 19 september 2024