In the Americas, there are significant challenges when it comes to addressing the negative impacts of business on human rights of individuals and communities. As noted by the Business and Human Rights Resource Centre, civil society organization often work under difficult circumstances, and too often are subjected to violence in response to their efforts to protect human rights against corporate activities. According the NGO Global Witness, Latin American countries “accounted for five out of the six most violent places to be an environmentalist in 2014.”
As a result, a number of developments that try to address this situation can be seen at the regional level in the context of the Organization of American States (OAS) and its human rights system. These developments have taken place in parallel to international human rights and business developments at the United Nations (UN), and have recently included efforts to regionalize international standards such as the UN Guiding Principles on Business and Human Rights to fit the reality of the Americas.
Organization of American States
Key developments in the region have taken place within the General Assembly (GA) of the OAS. Since 2001, the GA has considered the issue of corporate social responsibility (CSR). Through resolution GA/RES. 1786, the Permanent Council of the OAS sought to analyze the issue. Later, the GA adopted several CSR resolutions, the first of which expressed the need for Member States to exchange experiences on the issue, including with other multilateral institutions, as well as financial institutions, business and civil society.
In subsequent years, the GA urged States to promote CSR initiatives and programs that make explicit reference to human rights, including the ILO’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, the Voluntary Principles on Security and Human Rights, the UN Global Compact, the OECD Guidelines for Multinational Enterprises, the Millennium Development Goals, and the Extractive Industries Transparency Initiative (EITI).
It was not until 2012 that the Inter-American Council for Integral Development, through a resolution, recognized corporate responsibility to promote and respect human rights in the course of doing business. That year, the GA encouraged dialogue between companies and national congresses, as well as Members States to empower SMEs to engage in CSR initiatives.
In March 2014, the Inter-American Juridical Committee published the second report on “Corporate Social Responsibility in the Field of Human Rights and the Environment in the Americas.” The report provides an overview of the evolution of CSR in the hemisphere. It also establishes a series of guidelines for Member States on CSR specifically in relation to human rights and the environment, which are addressed both to States and business.
Finally, during the 44th Session of the OAS General Assembly in June 2014, the first resolution on the promotion and protection of human rights in business was adopted. The resolution was presented by Chile and strongly supports the UN Guiding Principles on Business and Human Rights.
This decision sparked a series of measures to promote and implement the UN Guiding Principles in the hemisphere, including the exchange of information and best practices among Member States in a special session on this subject, which took place on January 29, 2015. The special session was attended by several states, civil society and business.
The resolution also calls on the Inter-American Commission to support States in the promotion and implementation of state and business commitments in the field of business and human rights.
Inter-American Human Rights System
While the Inter-American Human Rights System, which is made up of a Commission and a Court, has not traditionally addressed the issue of business and human rights systematically or proactively, both institutions through thematic reports, jurisprudence and country visits, have contributed to the development of regional standards on the topic.
In this sense, they’ve made it clear to OAS Member States that responsibility can arise when they do not supervise the concessions granted to companies and tolerate that companies violate the rights of workers, consumers and communities.
For example, in 2009, the IACHR published a report titled, Indigenous and Tribal Peoples Rights’ Over Their Ancestral Lands and Natural Resources. In it, the Commission states:
‘The States of the Americas, and the populations that compose them, have the right to development. Such right to development “implies that each State has the freedom to exploit its natural resources, including through the granting of concessions and acceptance of international investment,” but development must necessarily be compatible with human rights, and specifically with the rights of indigenous and tribal peoples and their members. There is no development as such without full respect for human rights. This imposes mandatory limitations and duties on State authorities. In particular, development must be managed in a sustainable manner, which requires that States ensure protection of the environment, and specifically of the environment of indigenous and tribal ancestral territories. As the IACHR has explained, “the norms of the Inter‐ American human rights system neither prevent nor discourage development; rather, they require that development take place under conditions that respect and ensure the human rights of the individuals affected. As set forth in the Declaration of Principles of the Summit of the Americas: ‘Social progress and economic prosperity can be sustained only if our people live in a healthy environment and our ecosystems and natural resources are managed carefully and responsibly.’
The Court has also established that States must respect and protect the rights of indigenous and tribal peoples when they plan to extract subsoil resources or exploit water resources. Accordingly, the process of design, concession and implementation of exploration and exploitation of natural resources in indigenous territories must be done according to ILO Convention 169. Should these projects deprive indigenous peoples of the right to use and enjoy their lands and other natural resources necessary for survival, it is necessary to not only consult, but also get the free, prior, and informed consent of communities, according to their customs and traditions.
The Inter-American System has also established that consultation processes should be conducted through culturally appropriate means, taking into account the traditional decision-making methods of indigenous peoples, and be carried out during the early stages of the plan, development project, investment or mining concession. Likewise, if informed consultations have not been carried out with the due consideration to those communities who exercise the right of ownership over the land, companies could lose the right to use the property in question.
While these and other standards were developed for OAS Member States, according to the UN Guiding Principles, companies should respect these and other relevant standards throughout their operations and activities.
Also worth noting is that for several years the Inter-American Commission has organized hearings on issues related to the impact of corporations on human rights in the hemisphere. In March 2015, for example, relevant hearings included:
- Labor rights violations in Nicaragua
- Labor association rights in the Americas
- Extractive industries and human rights of the Mapuche people in Chile
- Business, human rights and consultation in the Americas
- Human rights and extractive industries in Latin America
Institutionalization of Business and Human Rights
While the issue of business and human rights had been previously addressed by the Inter-American System, it was not until November 2014 that the issue was institutionalized in the Inter-American Commission. In line with the mandate of the Commission and in light of the GA Resolution on the promotion and protection of human rights, which calls on the Commission to promote the subject of human rights and business, the Unit on Economic, Social and Cultural Rights incorporated the issue in its Work Plan for 2014-2015.
The Plan recognizes that “it is essential to consider that in recent years the international community has made progress in handling the increasing role of national and transnational companies, their impact on human rights and corresponding State obligations to prevent and respond to such issues.” Among other things, the Plan refers to the creation of partnerships and fundraising projects to advance the issue in the region.
In this context, a partnership between the Inter-American Commission and the Danish Institute for Human Rights was signed. The agreement is aimed at strengthening national human rights systems in the areas of promotion and protection of economic, social and cultural rights, with an emphasis on business and human rights and sustainable development in the Americas.
The actions envisaged as part of the collaboration include exchange of knowledge and capacity building, advising Member States of the Organization of America States on implementation of business and human rights standards, supporting the integration of these standards into the work of the Inter-American Commission, and a range of other activities.
Find the agreement here.
Considering the multiple challenges facing the region when it comes to human rights and business, these developments at the OAS are encouraging. As noted by the the Executive Director of the Danish Institute, Jonas Christoffersen, “the protection and fulfillment of human rights cannot happen without addressing the role of business. While international norms in this area have been clarified, they will only become effective through regional and national implementation. The Inter-American Commission is a key actor in this regard.”
Read the spanish version of this post here.