Report of the IACHR on Business and Human Rights: towards the Inter-Americanization of Business and Human Rights

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It is a pleasure to welcome Salvador Herencia-Carrasco on Rights as Usual. Salvador is the Director of the Human Rights Clinic of the Human Rights Research and Education Centre at the University of Ottawa. E-mail: [email protected] Twitter: @Sherencia77.  This post is his. Disclaimer: in October 2018, he attended a closed session in Mexico to discuss an early draft of the report.

In January 2020, the Special Rapporteurship on Economic, Social, Cultural and Environmental Rights of the Inter-American Commission on Human Rights (IACHR) published its long awaited report, “Business and Human Rights: Inter-American Standards”. Created in 1959 by the Organization of American States, the (IACHR) has jurisdiction to promote human rights over all 35 member states of this regional organization. This includes countries that have not ratified the ACHR like Canada, the United States and most of the Caribbean nations.

While we wait for the English version of the report to be released, the purpose of this post is to identify its key elements, and to discuss what this publication means for the Business & Human Rights (B&HR) field in the Americas. By providing a strong focus on the rights to due process and access to justice of victims, this report can be seen as an attempt by the IACHR to link the United Nations Guiding Principles on Business and Human Rights (UNGP) to the American Convention on Human Rights (ACHR). This “inter-americanization” of the UNGP could translate into concrete obligations for states, including adopting legislation and policies on B&HR, and eliminating legal barriers that limit access to courts by victims of corporate abuse.

The first part of the post shows how the main B&HR focus in the Inter-American Human Rights System (IAHRS) has been on mining companies so far, and how in its new report the IACHR identifies other fields of concern. In doing so, they “de-extractivize” the B&HR discussion in the Americas. The second part explains how the IACHR interprets the duty of the state to protect people from corporate abuses and how this could change how we use the UNGP in the IAHRS.

Business and Human Rights and the Inter-American Human Rights System: Going beyond Indigenous Peoples and Extractive Industries

 The IAHRS has played a significant role in assessing the impact of extractive industries on Indigenous Peoples, particularly on the violation of the rights to land, territory, consultation as well as free, prior and informed consent. Since Awas Tingni vs. Nicaragua, decided by the Inter-American Court of Human Rights (IACtHR) in 2001, the other 20+ cases on this field -including landmark cases of Saramaka vs. Suriname and Sarayaku vs. Ecuador- all have similar circumstances: a state authorizes an extractive corporation (usually mining) without any consultation with Indigenous Peoples who live in that area and who are the rightful owners of that land.

In the B&HR spectrum, these cases –despite focusing on state responsibility – have showed how mining permits are obtained, usually by presenting false documentation, bribing corrupt officials or benefiting from loose regulations. To complement these judicial standards, the IACHR published the report “Indigenous Peoples, Afro-Descendant Communities and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities in 2016. This was the IACHR’s first attempt to identify the B&HR obligations of states in the extractive sector.

The new report “Business & Human Rights: Inter-American Standards” has sections on Indigenous Peoples and mining companies (paras. 339-351) but it goes beyond the extractive industry. It identifies other topics of interest like transitional justice and the responsibility of businesses for gross violations of human rights (paras. 200-218), climate change (paras. 232-252) and the privatization of public services (paras. 219-231), among others.

Due process and access to justice as the key for victims to seek a prompt recourse for Business and Human Rights abuses

 The main scope of the report is the first pillar of the UNGP, which addresses the state duty to protect human rights. And that is clear throughout the 224 pages of the report. With the exception of chapter 4, the report emphasizes on obligations of the state vis-à-vis the first pillar.

At first glance, this could be seen as a missed opportunity because more analysis is needed on how to understand the second pillar of the UNGP, particularly within the IAHRS. However, a closer look at the report provides valuable guidance regarding the responsibilities of companies. For example, the report mentions how corruption and corporate interests have limited the capacity of states to fulfill human rights obligations (paras. 53 and 130), and points to the limitations of corporate social responsibility programs to effectively prevent human rights abuses (para. 134).

The IACHR report establishes from the start that the state has the primary duty to fulfill the UNGP. This includes the state’s (i) duty to adopt laws and policies; (ii) duty to prevent violations to human rights caused by business activities; (iii) duty to monitor/inspect businesses; (iv) duty to investigate, prosecute and repair victims (para. 85).

These duties correspond to the general human rights obligations found in Art. 1, Art. 8 and Art. 25 of the ACHR. For the B&HR discussion, paras. 133-139 of the report are important because they show the limitations of forum non conveniens and how inequality of arms between corporations and victims affects judicial proceedings at the national level. For those working on B&HR, this is not new. However, it is important to read this report from the point of view of the IACHR, particularly in its capacity to take cases against states to the IACtHR.

In practical terms, the IACHR –in my view- is carefully stating that it would be open to bring cases against home and/or host states to the IACtHR, as long as these are party to the ACHR. The IACHR is indicating that forum non conveniens and corporate veil are being used by businesses to prevent victims from accessing a prompt recourse. In my understanding of the report, the IACHR is suggesting that these are not protections but barriers that will not be opposable to IACHR while assessing a complaint.

Conclusion

This new report comes at a time of significant jurisprudential changes within the IAHRS. In December 2017, the IACtHR adopted the Lagos del Campo vs. Peru case, determining that economic, social and cultural rights are autonomously protected under the IAHRS. This opens a wide array of possibilities for B&HR litigation, allowing us to assess the impact that business activities might have on health or safety in the workplace. In 2020, the IACtHR should decide on a case related to an explosion of a factory in Brazil due to poor working conditions and on another case related to the impact of privatization of health insurance policies to the right of health in Chile.

In addition, the 2017 Advisory Opinion OC-23/17 on the Environment and Human Rights by the IACtHR establishes specific requirements on human rights and environmental impact assessments. In addition to this new judicial standards, the IACHR has recently published its report on “Corruption and Human Rights”(currently just available in Spanish). Of relevance to the B&HR discussion, this report goes beyond the adoption of criminal laws, highlighting the impact that corruption by businesses has on vulnerable populations.

Despite these relevant developments, legislation and the case law on B&HR in the Americas remain scarce. Many Latin American countries are still prioritizing developing National Action Plans or cases related to Indigenous Peoples. The report aims to broaden the scope by identifying how human rights abuses by businesses affect vulnerable populations (paras. 312-406) while also recommending states to prioritize due diligence legislation (paras. 103-119) and to implement extraterritorial obligations of home states (paras. 146-174).

The main challenge of any thematic report from the IACHR is how to fulfill its recommendations. I read the report as a set of tools to allow CSOs, victims and academics to work together to make “Inter-Americanization” of B&HR a reality.