A new report synthesizes and elaborates on Organization of American States (OAS) Member States’ obligations with regard to human rights affected by business activity, and assesses their current status in the Americas. See IACHR, Empresas y Derechos Humanos: Estándares Interamericanos (2020) [Spanish only]. The Special Rapporteur on Economic, Social, Cultural and Environmental Rights (known by its Spanish acronym REDESCA) of the Inter-American Commission on Human Rights (IACHR) prepared the report in response to a 2016 OAS General Assembly resolution calling for “a study on the inter-American standards on business and human rights.” [IACHR Press Release] The report builds on international human rights standards, including those of the Inter-American system, to cover topics from climate change to privatization of public services, information technologies, and corruption, among others. The opening page features a quote from Indigenous Honduran environmental activist Berta Cáceres, who was assassinated in connection with her organized opposition to a hydroelectric dam and despite precautionary measures in her favor from the IACHR.
While the report focuses on State obligations to respect and guarantee human rights in this area, it also addresses the role of businesses in guaranteeing and protecting human rights, and in achieving the United Nations Sustainable Development Goals by 2030. [IACHR Press Release] Drawing on Inter-American human rights standards and jurisprudence as well as the United Nations Guiding Principles on Business and Human Rights, among other international advances on this issue, the IACHR and REDESCA make a series of recommendations to States, businesses, and various OAS actors to clarify their obligations and ensure compliance with these standards. [IACHR Press Release] According to the Special Rapporteur, Soledad García Muñoz, the report “constitutes a tool with enormous potential for improving and strengthening legislation, practices and public policies that seek to address human rights violations and abuses in the context of business operations.” [IACHR Press Release]
International Legal Standards: Overview
The report builds on the IACHR 2015 report on Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities; jurisprudence from the Inter-American Court of Human Rights (IACtHR), including its advisory opinions on migrant workers, the rights of legal entities, and the environment and human rights; and the UN Guiding Principles on Business and Human Rights, which it considers a “dynamic and evolutive conceptual basis,” among other international and Inter-American standards. See IACHR, Empresas y Derechos Humanos: Estándares Interamericanos (2020) [Spanish only], paras. 11, 18, 23. In general, the IACHR and REDESCA analyze and interpret current international human rights standards in a broad, “evolutive” manner. See id. at para. 30.
Given that this is the first report to comprehensively address the issue of business and human rights at the Inter-American level, the IACHR and REDESCA first identify 12 criteria to be taken into account when developing legal frameworks with respect to business and human rights, both at the regional and national level. See id. at para. 41. These are derived from international human rights law and developments within the Inter-American system. See id. They are:
(1) human dignity;
(2) the recognition that all human rights are “universal, indivisible, interdependent, and interrelated;”
(3) the principle of equality and non-discrimination;
(4) the right to development;
(5) the right to a healthy environment;
(6) the right to defend human rights;
(7) transparency and access to information;
(8) the right to free, prior, and informed consent, in particular as it relates to the rights of Indigenous people and persons of African descent in relation to business activities;
(9) due diligence on the part of governments;
(10) State’s obligations to investigate, prosecute, and provide redress to victims of human rights violations;
(11) the extraterritorial application of State obligations under international human rights law; and,
(12) the impact of corruption on all human rights, including on individuals and populations who have historically been discriminated against.
See id. 42-53.
The report outlines State obligations in the context of business and human rights under Inter-American system standards, focusing specifically on the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man. See id. at para. 54. With respect to the American Convention, the report relies on the interpretation of articles 1 (obligation to respect rights), 2 (domestic legal effects), and 26 (progressive development) by the Inter-American Commission and Inter-American Court. See id. at para. 56. The report reiterates that under the American Convention, States are not only responsible for human rights violations that are committed by State agents, but also violations by private persons or actors (such as businesses or enterprises) if the State fails to meet its due diligence obligation to prevent the violations. See id. at 58. Similar State obligations exist under the American Declaration. See id.
Moreover, the report states that the IACtHR and the Commission have also relied on the OAS Charter, the Protocol of San Salvador, the Convention of Belém do Pará, the Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities, the Inter-American Convention on Protecting the Human Rights of Older Persons, and the American Declaration on the Rights of Indigenous Peoples to find States responsible for failing to meet their international obligations in cases in which businesses or private actors infringe human rights. See id. at paras. 55-65. Relying on these instruments, the report clarifies that States have an obligation to (1) prevent human rights violations related to business activities; (2) supervise business activities and adopt a normative framework to ensure the enjoyment of human rights; and, (3) to investigate, prosecute, and provide redress for victims of human rights violations that result from business activities. See id. at paras. 79, 86, 96, 103, 120.
These obligations apply to all individuals within a State’s jurisdiction, even if those individuals are outside of the State’s territory. See id. at 23. Accordingly, considering the transnational and complex operation of business actors in the region, the report articulates the extraterritorial scope of States’ international human rights obligations in situations in which a State exercises authority over the human rights of individuals who reside outside of its territory. See id. at paras. 52, 147-164, 174.
“Special Priority” Areas
The report also identifies key areas of “special priority” that may facilitate progressive analysis of other areas not covered in this report. See id. at para. 198. These areas are: transitional justice and accountability of economic actors; privatization of public services that are essential to guaranteeing the enjoyment of human rights; climate change in the context of business and human rights; fiscal policies, corporate tax practices, and the power of influence on public decision making; business and State activities in the information and communication technologies field; and, State obligations with respect to the implementation of bilateral or multilateral investment or trade treaties that impact the exercise and enjoyment of human rights. See id. at paras. 200, 219, 232, 253, 267, 285.
Taking into account the different impacts on individuals or groups that are in particularly vulnerable situations—for example, indigenous people, people of African descent, women and children, older persons, and persons with disabilities, among other groups—the IACHR and REDESCA make recommendations to States, businesses, and other OAS bodies to guide their efforts in this area. See id. at paras. 411-420.
Among several recommendations, the IACHR and REDESCA call on States to adopt a normative legal framework that takes into account the human rights standards outlined in this report and implement national legislation requiring businesses to act with due diligence in respecting human rights; improve transparency at the national level to prevent and reduce corruption; ensure that new information and communication technologies comply with international human rights standards, in particular the rights to privacy and freedom of expression; strengthen international cooperation and mutual assistance in the region; and, implement special protection measures for individuals and groups in vulnerable situations. See id.
The recommendations to businesses rely primarily on the UN Guiding Principles on Business and Human Rights. See id. at paras. 415-416. However, the IACHR and REDESCA emphasize that businesses must: include clauses in their business contracts that require upholding and respecting human rights; refrain from blocking, intimidating, or creating obstacles for human rights defenders or journalists reporting on human rights violations related to business practices; facilitate redress and remedies for victims, taking into account the standards laid out in this report; and refrain from pressuring or influencing State agents in order to obtain benefits that may result in human rights violations. See id. at para. 415.
Finally, the IACHR and REDESCA call on OAS Member States to provide the resources necessary to implement and develop the recommendations laid out in this report, and ask the OAS General Assembly to issue resolutions related to business and human rights in an effort to strengthen the analysis and standards in this report. See id. at 417-420. The REDESCA will continue to monitor developments in this area. See id.
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