AportesDPLF: Business and Human Rights

03 Sep 2015

In this edition of AportesDPLF, we examine business and human rights across Latin America.

The issue of business and human rights is more relevant than ever in intergovernmental and debate forums, both global and regional. Given the increasingly prominent role of corporations in matters of governance, it has become necessary to address their activities from a human rights perspective. In recent years, this analysis has moved beyond the attribution of responsibility to those States where human rights violations take place to include the corporations involved, as well as the home States of those corporations. In the United Nations, this development began with the 2011 adoption of the Guiding Principles on Business and Human Rights (Guiding Principles)—the implementation of which has been under discussion ever since—as well as the recent proposal by some governments to adopt a legally binding multilateral treaty on the subject.

Significant progress has also been made in the Organization of American States (OAS) by both its political and its human rights protection bodies (the Inter-American Commission on Human Rights [IACHR] and the Inter-American Court of Human Rights), but these initiatives need to be expanded and brought into line with the advances made at the UN. This edition of AportesDPLF addresses the most recent international legal developments on business and human rights, as well as specific cases and proposals for studying the issue in the future.

Our magazine addressed this topic for the first time in 2011, and this edition aims to provide an updated overview. The first section examines the evolution of the issue in international human rights bodies. Carlos López discusses the latest UN initiatives and makes recommendations for the content of a future international treaty on business and human rights. For his part, Amol Mehra analyzes the benefits of adopting National Action Plans that implement the Guiding Principles. The last article in this section identifies the issue as key for the region and addresses its nascent development within the OAS.

Based on two frameworks— the United Nations and the Inter-American System—the second section considers extraterritorial human rights obligations. Strengthening the obligations of the home States of corporations appears to be essential to this discussion. ESCR-Net provides an interesting overview of how United Nations bodies have recognized these obligations through interpretive means. Daniel Cerqueira, in his article, proposes the legal bases for an interpretation of human rights obligations that includes extraterritoriality into the Inter-American System.

Foreign investment and its impact on Latin America are addressed in three articles. Shin Imai and Natalie Bolton examine the extent of Canadian mining investment in Latin America, and demand that measures be taken to prevent its negative effects. Salvador Herencia also explores this issue and proposes that Canada must exercise better control of the public funding of Canadian corporations operating in Latin America. Finally, Paulina Garzón examines Chinese investment in the region, arguing that it should be subject to appropriate regulation. In the fourth section, we present four cases in which corporations have directly or indirectly, with or without the support of the State, violated the rights of the affected communities.

The case presented by Jen Moore deals with Canada’s ties to the abusive practices of the Canadian company Blackfire in Mexico. Alexandra Montgomery addresses the surveillance practices of Vale Corporation against Brazilian non-governmental organizations. María José Veramendi reports on the devastating effects of the pollution caused by the Doe Run Company in the city of La Oroya, Peru, and the ongoing efforts by those affected to obtain justice. Finally, Manuel Pérez-Rocha discusses the case of Pacific Rim v. El Salvador, and the limitations on the State’s ability to restrict the actions of transnational corporations that seek redress through international forums for violation of their rights contained in bilateral or multilateral investment treaties.

Next, the authors examine certain advances and initiatives taken by States. Paloma Muñoz presents a complete overview of the contributions of government human rights institutions in some of the region’s countries. Guillermo Rivera and Verónica Zubía respectively present the positions of Colombia and Chile in terms of the progress made in this area. The edition concludes with an article by Eduardo García, who, from a private sector perspective, provides an account of the initiatives taken by the Repsol Company in Latin America and the challenges it foresees with respect to new international standards for business and human rights.

We invite you to read this edition and share your impressions with us. 



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