No remedy for Nicaraguan victims of kidney disease

La Isla de Las Viudas (“the Island of the Widows”) surrounds Ingenio San Antonio (ISA), Nicaragua’s oldest and largest sugar mill. As the exclusive source of employment in town, the operation has employed nearly all of the local residents since its inception, and many say has been slowly and silently killing themImage_5_Sugar Cane_diego-rivera

Throughout the past two decades, over 20,000 sugarcane workers in El Salvador and Western Nicaragua have died prematurely after contracting Chronic Kidney Disease (CKD). According to the World Health Organization, it’s difficult to determine which country has the highest rate worldwide because data on the disease is so limited. But the Pan American Health Organization claims that the Nicaraguan CKD death rate – 6 out of 10 sugarcane workers – is the highest in Latin America. Given the extreme poverty in Nicaragua, conventional remedies, like kidney transplants and dialysis, are not accessible to the victims. In Nicaragua, a CKD diagnosis is a death sentence. While the official cause of CKD is yet to be determined, the overwhelming evidence points to occupational and environmental hazards.

ASOCHIVIDA (The Association of Chichigalpinos for Life) is a local group comprised of 2,000 former sugarcane workers and family members affected by the disease. In 2008, ASOCHIVIDA filed a complaint with the Compliance Advisor/Ombudsman (CAO), the independent recourse mechanism of the International Finance Corporation (IFC), the private sector lending arm of the World Bank. The CAO handles complaints from project-affected communities with the goal of enhancing social and environmental outcomes on the ground.

The ASOCHIVIDA complaint alleged that the World Bank violated its lending standards by failing to acknowledge the prevalence of CKD in its appraisals of operations at ISA before approving a $55 million loan to ISA in October 2006.

While working for the Center for International Environmental Law, attorney Kristen Genovese (now with the Center for Research on Multinational Corporations) assisted ASOCHIVIDA with filing the CAO complaint. At the time, Genevose pointed out that the Nicaraguan government also failed to protect the sugarcane workers.

In the wake of the CAO complaint, ASCHOIVIDA and Nicaragua Sugar Estates Ltd. (NSEL) requested a formal public health investigation. (NSEL owns ISA, and Grupo Pellas has majority ownership in NSEL. U.K.-based, multinational, agribusiness, Tate & Lyle, is also a minority owner.) Although the IFC maintains that it complied with its strict social and environmental due diligence standards, the World Bank sponsored an ongoing CKD investigation. The investigation included three foundation studies, which were all led by Boston University in partnership with the Center for Disease Control and Prevention.

In addition to the World Bank’s massive sponsorship, other powerful, corporate interests also backed the investigation. The Sugar Producers of the Central American Isthmus contributed $1.05 million to the occupational part of the investigation, and the National Committee of Sugar Producers of Nicaragua contributed $675,000 to the adolescent component of the investigation. Although the CDC maintains that numerous measures were in place to protect the research from the undue influence of the sugarcane industry, many suspect the investigation may harbor an overwhelming bias in favor of the sugarcane industry.

Bias or not, the BU investigative team published a preliminary report in 2012 finding that the specific cause(s) remained unknown. The preliminary report provided no scientific link from industry to disease. However, in the most recent investigative report, the group concluded that a number of variables including a decline in kidney function during the harvest and variances in the severity of CKD trending with different job categories as well as duration of employment all provide evidence that one or more risk factors of CKD are occupational. Their current hypothesis is that the CKD epidemic is caused by a deadly cocktail of many variables including, but not limited occupational hazards, poor labor practices, chronic dehydration, slash-and-burn harvesting technique employed by sugarcane workers, and toxins found in pesticides and heavy metals.

In 2012, NSEL and ASOCHIVIDA reached a final agreement outlining provisions related to medical care, economic development and continued support for the ongoing research by Boston University. After this agreement was reached, the CAO continued to monitor its implementation. In 2015, the CAO issued a detailed Conclusion report, closed the case, and stepped down from its role as mediator.

The chichigalpinos, and the small, international community aware of the situation, can simply wait for the investigative teams to continue their long-term studies. As the dire situation has gained more international attention, other public health professionals have started their own independent studies. Catharina Wesseling, a researcher at the Universidad Nacional in Heredia, Costa Rica and the Karolinska Institute in Stockholm is currently studying the disease. According to Wesseling, “This epidemic is an occupational disease with possibly one or more yet unknown environmental components interacting with occupational dehydration. The unknown factor(s) may be a pesticide, arsenic, an infectious agent, use of nephrotoxic drugs, or other environmental pollutants. But there is no room for much doubt that chronic dehydration is one major factor.” La Isla Foundation (LIF), a León-based international research and policy NGO continues its CKD work at the intersection of public health and human rights.

The causality link between both labor practices and environmental conditions and CKD will be a crucial finding for everyone involved. Any future litigation will turn on the victims’ ability to provide this nexus.

In the meantime, victims and human rights advocates have a number of remedies they might explore.

In 2011, Dominican sugarcane workers lodged a complaint with the US Department of Labor’s Office of Trade and Labor Affairs (OTLA) alleging that the Government of the Dominican Republic had failed to enforce labor laws as required by the U.S. Dominican Republic-Central America Free Trade Agreement (CAFTA-DR). As a party to this multilateral agreement, Nicaraguan’s could, as the Dominican sugarcane workers have, request that OTLA launch an immediate investigation into the conditions in Chichigalpa.

Another possible avenue for legal remedy lies within another US agency, the Environmental Protection Agency. In 2008, the US funded conferences in both Nicaragua and El Salvador to promote sugarcane biofuel production. In embassy cables released by WikiLeaks, ambassadors lauded ISA’s embrace of bioethanol production after pressuring both countries to expand into biofuels. A subsequently, leaked cable revealed that the U.S. State Department had designated Nicaragua as a “high-priority” bioethanol producer. On February 3, 2015, the EPA designated sugarcane ethanol as an advanced renewable fuel as part of its Renewable Fuel Standard (RFS2) Program. Before participating in the RFS program, all companies are required to register with the EPA.  Nicaragua Sugar Estates Ltd. is listed on the EPA’s Fuel Programs Registered Company/Facility ID List with RIN: 5897. Assuming a bioethanol producer endorsed by the EPA must comply with certain labor and environmental standards, sugarcane workers may be able to seek a remedy through this branch of the US government.

Still another avenue might be for American sugar consumers to bring a consumer protection class action as Costco customers have in California who don’t want to serve “slave-shrimp” for dinner.

Proceeding upon the assumption that if and when a multinational corporation’s operations damage a local community that community ought to have recourse to justice somewhere, human rights attorneys will need to get creative in seeking legal remedies for the injured parties. For now, maybe a spoonful of sugar will help the human rights abuses go down.

Ty Nagamatsu is a 3L at the University of Denver – Sturm College of Law and Staff Editor on the Denver Journal of International Law and Policy.

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