Posted by Ignacio Boulin – November 22, 2013 @ 09:39
During its 149th regular session, held from October 24 to November 8, 2013, the Inter-American Commission on Human Rights (“IACHR”) held four public hearings regarding the impact of extractive industries on the rights of both indigenous and non-indigenous peoples throughout Latin America. Public hearings are formal proceedings under the Inter-American procedural rules, although they might not be related to any particular case. Several civil society organizations and the defendant States—Colombia, Honduras, Ecuador and Peru—discussed current problems happening in these territories, as well as the responsibility of extractive industries’ home States. Home States are those in which companies are legally incorporated, such as Canada, home of many of the main companies working in Latin America.
During the hearings, representatives of indigenous communities and environmental advocates criticized host States—those States in which extractive activities are undertaken, i.e. Colombia—for tolerating human rights abuses committed by multinational corporations against vulnerable groups, and denounced home States such as Canada for not providing effective judicial remedies to protect foreign victims harmed by Canada’s multinational companies. Lastly, multinational corporations were attacked for violating rights of communities, specifically the right to prior consultation.
The States asserted their sovereign rights to design and implement policies to eradicate poverty and achieve sustainable development.
It is noteworthy that no actors from the private sector participated in the hearings. Their absence derives from the jurisdictional scope of the American Convention on Human Rights: only States can be accused of human rights violations. This leaves an entire category of the main players outside the discussion table.
These hearings, although part of the regular activity of the IACHR, might be a turning point in international law, particularly in the field of business and human rights. On the one hand, it was the first time the responsibility of home States was addressed at the regional level. On the other, U.S. Commissioner Dinah Shelton highlighted an interesting path for future litigation, when she noted that Article 36 of the OAS charter provides that “transnational enterprises and foreign private investment shall be subject to the legislation of the home countries and to the jurisdiction of their competent courts and to the international treaties and agreements to which said countries are parties.” This provision has never been used by human rights organization at the regional level, but might well provide some guidance on future strategies in transnational litigation, in which multinational companies will be targeted both in host and home States.