Human Rights and Business: Analysis of Jurisprudence in the Inter-American System

Introduction and Context

Despite progress in the development of binding normative standards on human rights and business, these have not yet been developed in the Latin American context. However, there are a number of ways to make the guiding principles on human rights and business binding. These include the possibility of creating a binding treaty, the generation of mandatory standards at the regional level, such as the European directive, and legislation at the national level that begins to impose human rights obligations on companies. In addition, strategic litigation by victims also plays a crucial role in this process.

Strategic human rights litigation, beyond concrete legal outcomes in specific cases, has been a useful tool for advancing the normative framework on business and human rights. This type of litigation can be analysed from various perspectives, such as the victims' strategy, the political-economic and structural elements that allow or limit litigation, among others.

Jurisprudence and Evolution of the Subject

Since its first decision, the Inter-American Court of Human Rights has considered the potential responsibility of non-state actors. In the case of Velásquez Rodríguez v. Honduras, the Court underscored the State's duty to guarantee rights against the actions of third parties and the corresponding obligation to make reparations. The Court stressed that States must organise their structures of public power in such a way as to ensure the free and full exercise of human rights, preventing, investigating, and punishing violations, and making reparations for damages where possible (paragraph 166).

The first explicit reference by the Inter-American Court of Human Rights to standards on human rights and business, and in particular to the Guiding Principles on Business and Human Rights (UNGPs), is in the case of Kalina Lokono v. Suriname. In this case, the Court established that companies not only have an obligation to respect human rights, but also to protect them, which implies obligations of prevention, mitigation, and responsibilities for their activities (paras. 224-25).

A similar analysis is found in the case of Employees of the Santo Antônio de Jesus Fire Factory v. Brazil. The Court reiterated that the State cannot be held responsible for any human rights violations committed by private individuals within its jurisdiction, and that it is necessary to analyse the particular circumstances of the case in order to establish responsibilities (paragraph 148). The Court recognised the State's obligation to supervise a factory that developed highly dangerous elements, relying on the UNGPs, stressing that States must enforce laws and adequately supervise dangerous business activities to prevent human rights violations (para. 149).

The case of the Miskito Divers v. Honduras marks a milestone in the jurisprudence of the Inter-American Court of Human Rights by developing the UNGPs in more detail. In this case, the Court affirmed that it is not for it to determine the individual responsibility of individuals, but to establish whether States are responsible for the violation of the human rights recognised in the Convention (paragraph 46). The Court detailed the three pillars of the UNGPs and stressed that States must protect against human rights violations committed by corporations by taking measures to prevent, investigate, punish and remedy such violations (paras. 47-51).

The case of Vera Rojas v. Chile follows a similar argument to that of Buzos Miskitos, however, it stands out for generating a reinforced responsibility for the State in the supervision of health facilities, recognizing that health is a public good that obliges the State to a reinforced guarantee of supervision (paragraph 89). The Court reiterated that States must regulate and monitor all health care provided by individuals, and that private companies must adopt measures to avoid negative impacts on human rights (para. 145).

The last two cases have been related to the obligation of the Peruvian State. First, the case of Olivera Fuentes v. Peru addresses in detail the obligations of the State and responsibilities of companies towards the LGBTIQA+ population, mentioning the supply chain both upwards and downwards, and highlighting the responsibility of companies to respect the human rights of these people in their operations and business relations (para. 103). For its part, in the case of La Oroya v. Peru, the Court obliged the State to ensure that the UNGPs are introduced into mining and metallurgical operations, ensuring that mining owners are responsible for the consequences and compensation for environmental damage (para. 352).

Individual Judges' Opinions

The Inter-American Court of Human Rights has recognised that companies have a primary responsibility in terms of human rights and has incorporated the UNGPs into its jurisprudence. However, the Court tends to adopt a State-centred view in its judgments, which is influenced by structural factors, political pressures from States, and the Court's own mandate.

The internal debate in the Court, reflected in the reasoned votes of its judges, shows different approaches to how to address the responsibilities of companies. While some judges such as Eduardo Ferrer Mac-Gregor Poisot have defended a state-centric vision, others such as Patricio Pazmiño Freire have pushed for a more direct application of the responsibilities of companies.

Judge Ferrer Mac-Gregor Poisot, in his reasoned opinion in the case of the Employees of the Santo Antônio de Jesus Fireworks, underlined the State's obligation to protect human rights from dangerous business activities, relying on the UNGPs to reinforce these obligations. Ferrer Mac-Gregor focused mainly on the responsibility of the State, leaving the direct responsibility of companies in the background.

On the other hand, Judge Pazmiño Freire, in his concurring opinion in the case of the Miskito divers, questioned whether the traditional rules of international responsibility, focused exclusively on the State, should remain immovable. Pazmiño Freire suggested that transnational corporations, which today hold as much or more power than many states, should also be recognized as responsible for human rights violations, not only through the state-company relationship, but as direct actors in international law.

Conclusion

The Inter-American Court of Human Rights has recognised that companies have a primary responsibility in terms of human rights and has incorporated the UNGPs into its jurisprudence. However, the Court tends to adopt a State-centred view in its judgments, which is influenced by structural factors, political pressures from States, and the Court's own mandate.

The internal debate in the Court, reflected in the reasoned votes of its judges, shows different approaches to how to address the responsibilities of companies. While some judges such as Eduardo Ferrer Mac-Gregor Poisot have defended a state-centric vision, others such as Patricio Pazmiño Freire have pushed for a more direct application of the responsibilities of companies.

The evolution of jurisprudence in the Inter-American System reflects a continuous process of adaptation and refinement in the interpretation of the UNGPs and will continue to be an issue of vital importance for the development of international human rights law.

This analysis has been a window into how the IACHR Court has advanced in incorporating international standards on business and human rights, and how these principles are being applied in specific cases within its jurisdiction. The discussion is still open and is crucial for the future of corporate responsibility for human rights violations in our region.

By Sebastian Smart. This blogpost was originally published in Spanish at NOVA BHR.