In its recent judgment in the case of the Kaliña and Lokono Peoples v Suriname, the Inter-American Court of Human Rights (IACHR) referred to a hotly contested and popular topic: business and human rights. Despite being constrained by jurisdictional limits, the Court succeeded in denouncing corporate violations of human rights. This, the first post in a two-part series on the judgment, will discuss the Court’s position on corporate abuses and state duties.
At first glance, the Court’s judgment focuses solely on state duties and therefore seems embedded in a traditional, indirect approach to the horizontal application of human rights. This traditional state-centric analysis provides only an inexplicit condemnation of the conduct of non-state actors (in this case, a mining company), despite the acknowledgment that such conduct had adversely impacted upon the environment and the human rights of indigenous peoples (§223). This could not be avoided, givne that the IACHR lacks the jurisdiction and competence (as it reiterated in Advisory Opinion 14) to pronounce on the obligations of non-state actors.
Despite these procedural and substantive limits, the Court still made important and brave allusions regarding corporate responsibility. Relying on the Guiding Principles on Business and Human Rights, the IACHR acknowledged that there was an obligation on states to prevent, punish and redress the violations committed by private corporations. But more importantly, the Court acknowledged that businesses themselves must not only respect and protect human rights, they must also “prevent, mitigate, and accept responsibility for the adverse human rights impacts directly linked to their activities” (§224).
This follows the Court’s jurisprudence since its very first decision in the contentious case of Velásquez-Rodríguez, in which it interpreted the obligation to “ensure” human rights as one requiring states to prevent, investigate and punish any violation of internationally recognised human rights. Such an obligation necessarily implies that non-state actors (corporations included) can violate human rights (as perpetrators or accomplices) and therefore affect the enjoyment and exercise of these rights. This explains the due diligence States must undertake to prevent and respond effectively to violations, to combat impunity, and to ensure accountability and reparations. The intensity of such due diligence is greater in situations when the victim is someone especially vulnerable or when the state has created a risk of non-state abuse, as mentioned in the Pueblo Bello case.
Against this backdrop, there may be nothing innovative in the Court’s decision in Kaliña and Lokono Peoples. However, as will be discussed in the follow-up post, the Court’s candour in naming corporate violations as such may contribute to regional and international developments in the field of corporate legal responsibility.
When international human rights bodies come across serious human rights abuses attributable to non-state actors but face procedural hurdles to condemn them, they can take advantage of various mechanisms in order to bring attention to these abuses. Through publicising reports, referencing the obiter dicta of respected international courts, or publishing press releases, activists and bodies (such as the IACHR) entrusted with the promotion of human rights may not only shame the actors committing these abuses, but also prompt state-practice and opinio juris that shape customary international law regarding non-state conduct. The pronouncements and obiter dicta of the IACHR have been cited, followed and relied upon by activists, NGOs, and even the International Court of Justice in the past. And there is no reason to believe that the judgment in Kaliña and Lokono Peoples will not be used to develop international law in similarly progressive ways.