A. The appropriation of the language of the UNGPs by regional actors

For the reasons set forth in the Introduction of this article, in addition to internal norms, all that activists, Latin American States, and the human rights bodies of the Organization of American States have at their disposal, in terms of widely accepted and solid standards on the subject, are the Guiding Principles on Business and Human Rights.

In other words, the UNGPs and internal norms are all that the different participants in processes of interaction with international normative concepts and institutions have at their disposal in their interactions with and in the invocation of law in order to achieve policy goals¹¹ related to the protection of human rights from corporate abuses.

Regarding the idea that different actors (participants) can interact with international normative concepts, it is useful to recall that Rosalyn Higgins has explained how:

[I]t is not particularly helpful, either intellectually or operationally, to rely on the subject-object dichotomy that runs through so much of the writings. It is more helpful, and closer to perceived reality, to return to the view of international law as a particular decision-making process. Within that process (which is a dynamic and not a static one) there are a variety of participants, making claims across state lines, with the object of maximizing various values. Determinations will be made on those claims by various authoritative decision-makers.¹²

Relevant participants also include academics as agents of political and legal change, “international lawyers as political actors,”¹³ and corporations themselves, since out of economic or political pressure, or an actual concern, the latter may internalize¹⁴ the notions found in the UNGPs and other normative developments in their codes of conduct and practice.

The idea that regional stakeholders and participants in discussions related to business and human rights aspects encompass a multiplicity of actors is confirmed, for instance, by how States, intra-state bodies, civil society actors, international organizations, and others in the Americas, participated in a Regional consultation for Latin America and the Caribbean on public policy for the implementation of the UNGPs on Business and Human Rights in the Framework of the 2030 Agenda on Sustainable Development of the Working Group on the issue of human rights and transnational corporations and other business enterprises.¹⁵

None of the above suggests that before the adoption of the UNGPs there were no trends, efforts, and developments towards the protection from the negative impact of businesses on the enjoyment of human rights. Quite the contrary, as explored below, such initiatives did exist, both universally and regionally. However, the widespread acceptance of the Guiding Principles does generate what could be termed a zeitgeist and an atmosphere in which corporate conduct is more scrutinized and placed under the spotlight in human rights terms. Moreover, they provide a common framework with which to assess pertinent issues.

Concerning these ideas, it is useful to consider that, as explained by Jan Klabbers, international law “offers a framework and a vocabulary for the conduct of politics.” This is explained, from the point of view of constructivist and critical arguments, in the sense that “law provides a platform and a vernacular, and [...] international law is inherently political.”¹⁶ Insofar as law provides a common language in light of which reality can be understood and arguments advanced, it is no surprise that the different actors and participants with a vested interest -that can be bolstered or undermined by legal interpretations will try to frame their actions in legal terms, and those opposing them will likely try to challenge those assertions.

This has happened in other regimes, for instance in regards to conduct related to the use of force, as when the United States tried to convey a message that its intervention in Iraq was compatible with international law and others (rightly) challenged this idea.¹⁷ Discourse contestation also takes place when alleged abusers try to safeguard their “legal reputation,”¹⁸ and when those without enough resources try to frame adverse conduct as illegal, which is something the notion of “lawfare” -to us excessively focused on military issues partly refers to.¹⁹

Altogether, in order to achieve their aims, be it in the business and human rights or in other fields, different participants may resort to strategies not only resorting to the content of the standards, but also of “appropriating the international legal discourse” and legal thinking prevalent in influential circles (sometimes reinterpreting them).²⁰ The aim is to frame their discourses in a language that is more appealing and seems to be the most robust at a given stage of international legal development, exchanging “opposing views articulated in a common language of international law,” as explained by Arnulf Becker Lorca.²¹

B. The propelling or halting developments as a result of the internalization of the language of the Guiding Principles on Business and Human Rights

Why are the dynamics of appropriation of the “concepts” and “language” found in international standards relevant in relation to business and human rights issues? Because the different participants in the Americas and elsewhere will likely make arguments expressly invoking or relying on concepts and notions found in the UNGPs, as the most commonly accepted standards on the field, which would thus operate as a “shared language” or a “vernacular.” By appropriating their use, they may -consciously or not subtly change the content of the concepts and standards of the Guiding Principles over time through practice. When there are economic or power imbalances, such as those present in some local contexts in which authorities or activists have tense relations with corporate or high-level authorities, actors in weak positions may be especially tempted to do so.

Altogether, by employing the language of the UNGPs, and framing their analyses in their light, actors may seek to strengthen their previous efforts with the support of a new widely accepted normative body, when they coincide -or are portrayed to coincide. In cases in which such coincidence does not exist, the adoption of the UNGPs in 2011 may inspire completely new actions. On the other hand, though, there is a risk of stagnation. If the scope of the UNGPs is restricted or limited in some regards, and such limitations are “internalized” by participants, otherwise potential developments of the latter may be forestalled.

Altogether, three dynamics of interaction with the Guiding Principles on Business and Human Rights may take place. The different participants in the Americas with a nominal/formal or actual interest on the protection from corporate abuses may invoke the Guiding Principles or -without necessarily expressly referring to them take advantage of the atmosphere generated by their adoption and their correlative expressive effects in order to:

In the first two dynamics, the different participants may consciously or unconsciously appropriate the language of the UNGPs on aspects and notions as ‘due diligence’, among others, and may even end up transforming or making them evolve by means of their use and interpretation, when advancing certain policies and claims.

In fact, the dynamics described above can also take place when corporations or others try to deflect criticism by relying on a supposed “soft” or merely voluntary responsibility in some regards, with others challenging this position via the interpretation of existing standards, or by trying to bring about normative changes. Hence, it may happen that some arguments are framed in ways that allegedly rely on the concepts found in the UNGPs -and other standards that are eventually shared by consensus in ways that hinder or slow down stronger normative processes, for instance by saying that stronger alternative or complementary norms are unnecessary or could undermine the UNGPs.

That being said, discourse dynamics may also lead to progressive development, as has occurred throughout the history of international law. Furthermore, they can be instigated by or conducted prominently by semi-peripheral States -especially, as history shows, if they adopt a common stance or are joined by more influential actors such as powerful, especially interested, or affected States²³ even from a formal point of view, in light of the notion of especially interested States in the formation of custom.²⁴ Additionally, just as it happened with the notion of uti possidetis juris, which was initially an American doctrine that ended up being relevant in general international law,²⁵ the efforts of American States, their reliance on and use of the UNGPs, and the climate they generate, may end up having an impact on ulterior universal legal developments.

In sum, the different participants of the Americas, by appropriating and perhaps eventually shaping -via customary law or otherwise both the notions and the scope and content of the duties found in the UNGPs (and other standards that eventually gain recognition as “common,” shared, or widely accepted), can bring about normative change, at least in the region or sub-regions, going beyond what those standards expressly or avowedly say at a given moment. Those developments could eventually be echoed in other regions and in the universal level.

Yet, there is also the risk that the opposition of influential actors hinders the crystallization of those processes, as it can happen when such actors prove to be more persuasive in the invocation of the shared language of the norms on business and human rights in an opposing way. In any case, insofar as standards perceived to be common or “shared” generate the perception that they reflect the legal or normative reality, the success of processes of interaction will largely depend on effectively grasping and handling the concepts and terms found in them.

From the point of view of progressively developing and expanding the frontiers of what the law permits, activists and victims must bear in mind that “[d]eterminations will be made on those claims by various authoritative decision-makers.”²⁶ Still, they may conduct initiatives in extra-legal venues and send messages to civil society seeking to bring about pressure on those authorities. To have success, emotional strategies are often important, especially if they manage to be expressed in discourses that employ the concepts of the UNGPs and to portray the drama of victims in public hearings or other settings.²⁷

All of the previous dynamics can have a formal impact on international law, made possible because both invocation and implementation are international legal processes, as McDougal and Lasswell argued.²⁸ Furthermore, practice can have an impact on future normative changes, as the relevance of the established practice of international organizations confirms.²⁹ In this sense, it is possible to answer to the question of how change may be effected by employing the concepts of the UNGPs.

Firstly, this can take place thanks to the expressive effects³⁰ of the UNGPs and other standards that come to be widely accepted, since they can generate new conscience and raise awareness on some problems that ought to be addressed, making actors perceive legal issues and reality in light of them (thus operating as a prism).

Secondly, actual practice, and a more or less faithful reliance on the UNGPs, may well generate new practices that go above and beyond what their author originally intended or the Principles themselves permit, require, or indicate. After all, expressive and implementation effects can sometimes exert a mutual influence, insofar as practice is shaped in light of existing standards, but the latter can be modified in turn by practice shaped by new expectations or dynamics, and so new expressive effects can be generated by this change.

We will now turn to the attention of how the main bodies of the Inter-American Human Rights System, namely the Commission and the Court, have treated business and human rights issues before and after the Guiding Principles were adopted, exploring how their practice fits in the conceptual framework presented in this section.

A. Engagement of the main bodies of the Inter-American Human Rights System with Business and Human Rights issues before the 2011 adoption of the Guiding Principles

Among the cases in which business and human rights issues were handled by the Inter-American Human Rights System before the adoption of the UNGPs, it is possible to mention, for instance, Chapters VIII and IX of the 1997 country report of the 38 IACHR on the Situation of Human Rights in Ecuador, entitled “The Human Rights Situation of the Inhabitants of the Interior of Ecuador Affected by Development Activities” and “Human Rights Issues of Special Relevance to the Indigenous Inhabitants of the Country,” respectively.

In those Chapters, the Commission acknowledged allegations of a lack of consultation and that certain corporate industrial and extractive activities had a detrimental impact on the environment and on local indigenous peoples -some of whom allegedly suffered harassment and threats of company workers or of men hired to intimidate them and of displacement at the hands of those who desired to conduct certain economic activities in their lands. In relation to these accusations, the Commission reminded the State of Ecuador that it had obligations to ensure that all victims had access to justice, no matter who the agent of causation of a negative impact on the enjoyment of human rights is -State, corporate, or otherwise and that indigenous peoples must receive special protection from corporate and other abuses. In this sense, in the aforementioned report, the IACHR said the following:

The inhabitants allege that the Government has failed to regulate and supervise the activities of both the state-owned oil company and of its licensee companies. They further allege that the companies take few if any measures to protect the affected population, and refuse to implement environmental controls or to utilize existing technologies employed in other countries [...] Human exposure to oil and oil-related chemicals, through the skin or ingested in food or water, or through fumes absorbed via the respiratory system, has been widely documented to cause adverse effects to human health and life [...] Oil development activities have also been linked, directly and indirectly, with problems in food supply and malnutrition [...] The information analyzed above on the impact of oil exploitation activities on the health and lives of the affected residents raises serious concern, and prompts the Commission to encourage the State of Ecuador to take the measures necessary to ensure that the acts of its agents, through the State-owned oil company, conform to its domestic and inter-American legal obligations. Moreover, the Commission encourages the State to take steps to prevent harm to affected individuals through the conduct of its licensees and private actors. The State of Ecuador must ensure that measures are in place to prevent and protect against the occurrence of environmental contamination which threatens the lives of the inhabitants of development sectors. Where the right to life of Oriente residents has been infringed upon by environmental contamination, the Government is obliged to respond with appropriate measures of investigation and redress [...] The Commission recommends that the State implement the measures to ensure that all persons have the right to participate, individually and jointly, in the formulation of decisions which directly concern their environment [...] the Commission recommends that the State take measures to ensure that access to justice is more fully afforded to the people of the interior [...] In addition to the non-native workers brought in to build roads and construct and operate facilities, the opening of roads funneled colonists, land speculators, and loggers into indigenous homelands. In the case of the Oriente, this colonization was encouraged by the State [...] One consequence of the influx of nonnative peoples into traditional indigenous territory is the exposure of indigenous inhabitants to previously unknown diseases and epidemics [...] Another consequence of the development of the Oriente and the influx of outsiders has been the displacement of indigenous inhabitants and communities. Oil exploitation activities have proceeded through traditional indigenous territory with little attention to the placement of facilities in relation to existing communities [...] Reports indicate that the Tagaeri have been threatened by company workers or bands of armed men hired to seek them out to harm or intimidate them, and by adventurers. The Commission delegation received detailed accounts of several such incidents [...] Within international law generally, and interAmerican law specifically, special protections for indigenous peoples may be required for them to exercise their rights fully and equally.³⁹

On the other hand, it is also important to mention that the IACHR adopted its report on Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources in December 2009, more than one year after the Human Rights Council unanimously approved Ruggie’s “Protect, Respect, and Remedy: a Framework for Business and Human Rights” proposal in April 2008.⁴⁰ Notwithstanding the importance of the Framework, upon which the UNGPs themselves are founded, it may be the case that the Guiding Principles on Business and Human Rights are far more recognized and hailed as the current expression of the consensual state of the art on the issue, being the ones that are frequently mentioned as important to not be disregarded or undermined but rather complemented by a future treaty or practice.⁴¹ Yet, the report was undoubtedly adopted at a moment in which some of the notions they discuss had begun to gain prominence, given the adoption of the Framework. The Report of the Commission is noteworthy for the purposes of our study to the extent that it confirmed the previously identified jurisprudential line of the Commission according to which States are under an obligation to protect indigenous peoples from the negative impact on the enjoyment of the rights of their members caused by corporate activity that generates environmental degradation or is aimed at threatening and harassing them. It also indicated that, when such prevention fails, States are under a duty to provide access to justice and ensure reparations. In this sense, the IACHR considered that:

[E]nforcement of the environmental protection measures in relation to private parties, in particular of extractive companies and industries, is required to avoid the State’s international responsibility [...] extractive concessions in indigenous territories, in having the potential of causing ecological damage, endanger the economic interests, survival, and cultural integrity of the indigenous communities [...] In too many cases, the consultation of indigenous peoples is carried out in climates of harassment and even violence perpetrated by private security guards hired by the companies that are responsible for the projects, and sometimes by public security forces [...] the duty of reparation is applicable not only to the negative impact of activities carried out by State authorities, but also by commercial companies or other private actors. In this latter type of cases, states are in the obligation of securing the existence of effective and accessible reparation mechanisms.⁴²

In addition to country and thematic reports, the Inter-American Commission on Human Rights also addressed the risks that some corporate conduct poses to the enjoyment of human rights in Resolution N.° 12/85 in the Yanomami case. In this Resolution, the IACHR noted how the discovery of mineral deposits in the 1970s “attracted mining companies and independent prospectors (garimpeiros), thus aggravating the displacement of thousands of Indians,” and that in addition to such displacement, the “massive penetration of outsiders into the area has had devastating physical and psychological consequences for the Indians.” Accordingly, and considering that the State of Brazil had forbidden the transit or stay of non-indigenous individuals and the entrance of companies into the Yanomami territories, the Commission urged the State to continue implementing preventive measures of the sort.⁴³

In turn, the Inter-American Court of Human Rights had also addressed corporate participation in abuses or threats before the adoption of the Guiding Principles on Business and Human Rights. In this sense, in its Provisional Measures Resolution dated March 6^th, 2003 in the Case of the Communities of the Jiguamiando and the Curbarado, the Court considered how “the company Urapalma S.A. has initiated cultivation of the oil palm on approximately 1,500 hectares of the collective land” of some communities, which suffered raids from armed groups with the aim of intimidating them into joining “in the production of oil palm or evacuate the territory.” Moreover, the company was expanding cultivations in a way that made crops “advance toward the community of Nueva Esperanza, near the place chosen by the members of the Communities to set up their “humanitarian refugee zones.” Accordingly, the IACtHR identified a risk to the enjoyment of human rights suffered by the members of the respective communities, and partly caused by corporate activity, in the sense that “under [the] circumstances, the cultivation of African palm and the exploitation of the natural resources on the Communities’ territory endanger the lives and survival of these families.”⁴⁴

As a consequence of its findings, the Court called upon the State of Colombia to protect those members through measures as the conduction of investigations and actions aimed at safeguarding their life and safety and their right to “continue living in their place of residence, free from any kind of coercion or threat.”⁴⁵

This is one of the orders of the Court that, on the one hand, have been praised for its technique of requiring, via Provisional Measures, the protection of everyone who is an identifiable victim or potential victim,⁴⁶ and on the other hand, demonstrates that protection can be demanded when individuals and communities are threatened by the activity of corporations. Furthermore, this case exemplifies the seriousness of the risks and abuses that have been faced by some people in the region at the hands of certain businesses.

Let us now move on to the analysis of the most relevant pronouncements and initiatives in the Inter-American System that were issued after the adoption UNGPs, which reveal an increase in the energy devoted and the attention paid to business and human rights issues.

B. Examination of corporate participation in abuses in the Inter-American Human Rights System since the adoption of the Guiding Principles on Business and Human Rights in 2011

Beginning with the Inter-American Court of Human Rights, it is noteworthy how, thanks to the universal normative developments explored in this article, when it has examined recent cases in which elements of corporate participation in abuses are present, the Court has done two things: first, it has relied on the Drittwirkung or horizontal human rights law doctrine as it did before, but specifically mentioning the global developments towards protection from corporate violations in ways that make it clear that the Court rejects and condemns such abuses; and secondly, while the IACtHR cannot condemn corporate abuses in a strictly judicial way in the conduction of contentious procedures, given its jurisdictional limits, in obiter dicta it has expressed its repudiation and thus sent signals -not only to authorities, but also to businesses themselves, and to victims and their defenders that corporate abuses are unacceptable, just as it has done in regards to acts of terrorism.⁴⁷ Two cases reveal this.

Firstly, it would be remiss to fail to mention the landmark judgment of the IACtHR in the case of the Kalina and Lokono Peoples, which is noteworthy insofar as it prominently mentions the Guiding Principles on Business and Human Rights, and also underscores the unacceptability of the corporate conduct it had to examine in order to assess State compliance with human rights obligations. In the part of its decision that is relevant for the purposes of this article, the Court began by acknowledging that some corporate conduct had a negative impact on human rights, and how this was contrary to what the Guiding Principles indicate concerning the respect that businesses should have to wards human rights. Said is the reason why the protection pillar ought to be activated and the responded State, Suriname, was under protection obligations of both prevention and response, which it failed to observe. The relevant extracts of the 2015 judgment say the following:

223. The Court notes that the mining activities that resulted in the adverse impact on the environment and, consequently, on the rights of the indigenous peoples, were carried out by private agents; first by Suralco alone, and then by the joint venture, BHP Billiton-Suralco.

224. In this regard, the Court takes note of the “Guiding Principles on Business and Human Rights,” endorsed by the Human Rights Council of the United Nations, which establish that businesses must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for the adverse human rights impacts directly linked to their activities. Hence, as reiterated by these principles, “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish, and redress such abuse through effective policies, legislation, regulations, and adjudication.”

225. Thus, the Special Representative of the Secretary-General of the United Nations on the issue of human rights and transnational corporations and other business enterprises has indicated that businesses must respect the human rights of members of specific groups or populations, including indigenous and tribal peoples, and pay special attention when such rights are violated.

226. Based on the above, the Court finds that, because the State did not ensure that an independent social and environmental impact assessment was made prior to the start-up of bauxite mining, and did not supervise the assessment that was made subsequently, it failed to comply with this safeguard; in particular, considering that the activities would be carried out in a protected nature reserve and within the traditional territories of several peoples.⁴⁸ (original underscored).

Likewise, in the case of the Hacienda Brasil Verde Workers, the Court recounted violations of slave work in estates belonging to businesses in Brazil in the 20th century and actions that the State had taken to address this problematic. It highlighted that States are under obligations to bring an end to slavery through measures as addressing its causes, and concluded that Brazil, the respondent State, had breached its obligations -it did cite the Guiding Principles, albeit in a footnote.⁴⁹

As to the Inter-American Commission on Human Rights, it is convenient to begin by noting that while, just as the Court, it is currently prevented from having the capacity to issue direct conclusions on non-state conduct in the exercise of its contentious jurisdiction; it can both address non-state abuses indirectly by means of obiter dicta in the exercise of such jurisdiction and, additionally, it can give opinions on corporate and other non-state threats to the enjoyment of human rights in press releases and thematic and country reports, in furtherance of its promotion function and mission. While, understandably, it still focuses on State responsibility, the Commission ever more addresses nonstate abuses, which, needless to say, is an important action for victims and is consistent with the idea that human dignity, being non-conditional, must be protected from all threats, corporate ones included.⁵⁰ In regards to its functions and capacities, in its Report on Terrorism and Human Rights the IACHR argued that it would be false to consider that:

[T]he conduct of non-state actors, including terrorists and terrorist groups, bears no relevance to the evaluation of states’ obligations concerning human rights protections in the Hemisphere. Throughout its history, the Commission has, for example, referenced the atrocities committed by armed dissident groups in its press releases, in communications with governments, and in its reports on the situation of human rights in the various member states of the OAS.⁵¹

Having presented the basics of the competence of the IACHR on the issue, we will now present the most salient reports of the Commission on business and human rights aspects, beginning with its report on Indigenous Peoples, Communities of African Descent, Extractive Industries. In it, the Commission not only expressly referred to the Guiding Principles and acknowledged that corporate conduct -investment activities included can have a negative impact on human rights (generally speaking, and in the case of vulnerable persons, such as children or Afro-descendants; and also in relation to rights with an environmental connection), reason why they are required to be compatible with said rights (which is a systemic argument that helps to counter fragmentation);⁵² but also noted thorny and still debated topics such as extraterritorial jurisdiction, argued that impact assessments are important, and that barriers to remedies and redress mechanisms are a problem to be addressed, since they generate impunity. Relevant parts of the report say the following:

[W]hen [...] complaints are brought to the justice system, the petitioners must go through a series of obstacles and barriers that create situations of impunity [...] Where investment projects involve foreign or transnational corporations originating from outside of the host country, situations of impunity are exacerbated [. ] indigenous representatives and human rights defenders from various countries of the region have been unanimous in reporting and documenting the deficiencies in the current legal and political frameworks and emphasizing the need for foreign and transnational corporations to also be held accountable in their home countries for actions that violate the human rights of indigenous peoples and Afro-descendants in the Americas [...] States must not adopt commercial or investment legislation that can weaken, undermine, or deny the existing protections and their international human rights obligations [...] The Commission reiterates its concern that while business and investment is a laudable objective to be encouraged, it must be carried out on a platform that enhances and does not undermine human rights, within or beyond national borders [...] the adoption of measures to ensure the investigation and, where appropriate, the application of criminal and administrative sanctions to the people in the public or private sphere, and companies responsible for human rights violations is required.⁵³

The previous ideas of the IACHR indeed support the strengthening of protection from corporate abuses, and show how reliance on the language of the UNGPs and other developments may strengthen the case for protection from corporate abuses and the position of defenders, as argued in section I. Yet, the limits that the Principles themselves have in some regards -which do not necessarily reflect the final stage of the evolution of the law or even the contemporary one⁵⁴ may also hinder or slow down potential developments when they are fully or blindly embraced, as section I also discussed, making the importance of further developments, including those that can potentially take place in the region, so important.

This risk can be seen in the treatment of extraterritorial jurisdiction, insofar as the Guiding Principles cited by the very Commission mention, in the commentary to Principle 2, that “[a]t present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.”

Recognizing the problems generated by the availability of different jurisdictions for corporate activities and how businesses can circumvent internal controls of some States, the IACHR goes on to note that there are certainly protection gaps, and thus urges (does not demand) States to adopt extraterritorial jurisdiction, stopping short of requiring this as a matter of legal obligations. In this sense, the Commission considered in its report that:

[T]he IACHR, taking note of evolving principles in international law and the work of other human rights monitoring bodies, has set out certain fundamental principles concerning the use of extraterritorial jurisdiction. It is therefore jurisprudentially sound to understand that a State may be accountable under international human rights law for conduct that takes place in another country when the first state’s acts [...] While this is an emerging and evolving area, now the subject of deep discussion at the United Nations level, some definitive statements have already been expressed by certain UN bodies about the duty of states to protect human rights, specifically to prevent human rights violations, even in relation to alleged violations by its nationals in other countries. The IACHR continues to urge foreign states of origin to put mechanisms in place voluntarily [...] The Commission had in fact noted in hearings that these rules do not establish specific monitoring mechanisms that could be used in corporation operations abroad.⁵⁵

In any case, while adopting a cautious or conservative stance not shown by United Nations treaty-supervisory bodies,⁵⁶ probably influenced by what the Guiding Principles indicate, the Inter-American Commission’s argument has the redeeming quality that it does not foreclose the possibility of there being an evolution in the regulation of extraterritorial jurisdiction -the evolutionary nature of how human rights law is defended supports this position⁵⁷ generally and in connection with business and human rights issues. In fact, this possibility, and the necessity of there being normative evolutions in the field, exist so much so that the United States Court of Appeals for the Second Circuit, which considered in the Kiobel case that there are no contemporary direct obligations of businesses under international law (something that authors such as ourselves and other U.S. Courts and even Arbitral Tribunals disagree with),⁵⁸ accepted that this situation can change to the extent that obligations of that kind may be created and regulated in the future, when it said “[w] e do not know whether the concept of corporate liability will “gradually ripen[ ] into a rule of international law.”⁵⁹

In addition to the previous report on extractive industries, in which business and human rights analyses and reference to the UNGPs abound, ever since 2011, the IACHR has engaged the issue in a more frequent and proactive way, perhaps spurred by the adoption of the UNGPs as catalysts of innovation and action. For instance, in 2015 the Commission adopted a country report on Guatemala, in which, sticking to its main focus on State obligations and how they remain in place even when companies carry out certain operations, it confirmed that businesses regrettably do violate human rights in practice, and expressed its concern over some possible chilling effects affecting litigation against them; possible threats of private security companies, among others; and how economic reasons may motivate or be behind some abuses. Concerning these issues, in the aforementioned report the IACHR said the following:

An especially critical issue in the field of security is the operation of private security forces in Guatemala [...] The IACHR also notes that members of private security forces have been accused repeatedly of violating the rights of indigenous communities and their members defending their land and territory [...] the State’s international responsibility may be engaged by the attribution to it of human rights violations committed by third parties or private individuals [...] numerous acts of violence have been observed against indigenous communities that oppose development and investment projects, in particular, attacks, intimidation, and harassment against their leaders [...] Opening groundless criminal investigations or judicial actions against human rights defenders not only has a chilling effect on their work.⁶⁰

Indeed, the problems posed by certain security companies are worrisome in the region and have been raised in other reports as well, such as in the 2015 report on Mexico, in which the IA- CHR said that “private security forces also tend to be sources of violence. Should these private companies commit human rights violations, the State could be responsible.”⁶¹ Likewise, in its 2015 report on Honduras, the Commission put forth that private security companies “have acquired power and are working without proper supervision and control, and hence with impunity.”⁶² Indeed, the problems that the aforementioned companies can pose require special State oversight. In this regard, in its 2015 report on Violence, Children and Organized Crime, the IACHR said that:

The IACHR has also voiced its concern over poor regulation and oversight by the State in several countries, particularly, with regard to: i) the functions that private security companies are allowed to perform; ii) the type of weapons and law enforcement equipment they are authorized to use; iii) adequate mechanisms to control their activities; iv) implementation of a public register of such companies and employees; and v) delivery of regular reports on contracts entered into and the type of activities performed by them.⁶³

Additionally, the Inter-American Commission on Human Rights has addressed other specific business and human rights problems in the Americas, as it did in its 2016 report on the Criminalization of Human Rights Defenders. In this report it said that sometimes the owners of business megaprojects, those who work in them, or private companies themselves, “file complaints within unfounded criminal prosecutions,” and “sometimes conduct smear campaigns against human rights defenders in order to affect their credibility, and materialize alliances with military and police officers to obtain the arrests of human rights defenders.”⁶⁴ Likewise, in its 2015 report on Human Mobility, Inter-American Standards, the Commission said that “the impact of the activity of national and transnational business” may be a factor contributing to an increase in human mobility in the region,⁶⁵ which sometimes takes place in ways that generate or are surrounded by human rights problems.

In addition to its ordinary functions, it is noteworthy that the Inter-American Commission on Human Rights entered into a Memorandum of Understanding with the Danish Institute for Human Rights on 16 March 2015, in which both parties agreed, among others, to enhance cooperation “in the areas of promotion and protection of economic, social, and cultural rights [...] with particularfocus on the areas of business and human rights and sustainable development in the Americas. All work will be based on applicable international and regional human rights principles and instruments, including the UNGPs” (original underscored). According to the Danish Institute, the agreement:

[C]omes on the heels of the adoption of a OAS General Assembly resolution from June 2014 concerning the promotion and protection of human rights in business, in which the General Assembly resolved to promote the application of the UNGPs and encourages member states and their national human rights institutions to foster constructive dialogue among all stakeholder groups on the application of the UNGPs. The resolution also requests the IACHR to support states in the promotion and application of state and business commitments in the area of human rights and business.⁶⁶

In addition to implicitly reflecting how actors as varied as an Institute and the IACHR itself and its Rapporteurship on Economic, Social, and Cultural Rights (entrusted with the object of the agreement) are concerned with the impact of business activities on the enjoyment of those and other human rights (as the reports addressing private security violence reveal), the Memorandum of Understanding underscores how joint and individual action addressing corporate impact on the enjoyment of human rights can be carried out with reference to the Guiding Principles on Business and Human Rights, which have been erected as the de facto corpus juris on the field (undoubtedly codifying some preexisting standards).⁶⁷ More than that, it shows how the UNGPs have propelled new initiatives and made different actors pay attention to a problem that, perhaps, was not so evident before or concerning which some (out of a given interest) wanted to turn a deaf ear to.

Initiatives as those studied herein by no means suggest that corporate human rights problems are new, because by no means they are. Rather, the agreement and other actions in the Inter-American System evince how the UNGPs have raised awareness about them and operate as a shared body of reference that permits interactions and discussions about it. Yet, there is also the risk, identified in doctrine, that exclusively referring to those Guiding Principles could lead to stagnation when there are pressing problems not sufficiently addressed by them,⁶⁸ as argued above when referring to extraterritorial jurisdiction in the IACHR’s analysis.

Altogether, the information provided in this section on the reports and initiatives of the Inter-American Commission reveal that, while it does not always expressly refer to the Guiding Principles on Business and Human Rights, it does seem both more aware of the importance of recognizing how some corporate conduct may cause or worsen some human rights problems, and also more willing to tackle such conduct -directly or indirectly. The fact that its thematic and country reports increasingly address such ratione personae dimension since the adoption of the UNGPs suggests that they may have had raised awareness and propelled new and renewed efforts to address it, especially because IACHR reports did not always or so frequently consider corporate impact before.

On the other hand, in their actions, both the IACHR and the IACtHR had historically taken into account non-state abuses and how they may trigger or intensify State obligations. Thus, the appropriation of the UNGPs as a shared corpus has served to reinforce initiatives to protect from corporate abuses, by providing accepted international standards and the reflection of a supposed common conscience -which has an impact on perception and beliefs of actors and participants.

Moreover, the opinions of both the Court and the Commission echo the three ‘protect, respect, and remedy’ pillars of the UNGPs and their Framework, to the extent that they acknowledge that businesses may be agents of human rights violations, that States are obliged to protect from that possibility, and that victims must have access to remedies and justice in those and all other cases of violations.

What is more, the shared corpus represented by the UNGPs may operate in synergic relations. In this sense, first, States may be influenced to incorporate them in their practice and norms, not only due to requests at the United Nations but also via the figure of the “control of conformity with the Convention”, as indicated earlier in this section; or simply by internalizing what

the Inter-American System says, not only out of a sense of duty, but even as a result of imitation, acculturation, or socialization dynamics.⁶⁹ Other actors can follow suit by internalizing the UNGPs and related standards in other ways. For instance, the shared language has been adopted by other actors within the OAS.

In this sense, for example, Resolution AG/RES.2840 (XLIV- 0/14) of the General Assembly of the Organization of American States, recognizing the broad international support of the UNGPs, promoted its reception in member States, and asked for discussions on business and human rights issues to be made in their light. In this sense, the Resolution resolved:

To continue promoting the application of the United Nations guiding principles on business and human rights, and to urge member states to disseminate these principles as broadly as possible, facilitating the exchange of information and sharing of best practices on promotion and protection of human rights in business in order to create greater awareness of the benefits of their enforcement [...] To encourage member states and their respective national human rights institutes and/or competent institutions to foster constructive dialogue among business, government, and civil society and other social stakeholders, for application of the Guiding Principles.

The idea that the Guiding Principles on Business and Human Rights serve as an important part of the common “language” or framework with which to address the impact of corporate activity on human rights in the Americas has also been expressed in Inter-American conferences and OAS meetings. Indeed, it has been said that:

“[A]t the Inter-American level, countries have not developed a regional standard, guideline or directive on corporate social responsibility, but have rather accepted as valid or applicable in the relevant countries -of course, with a voluntary nature the universal documents prepared by different organizations, such as the 2000 United Nations Global Compact, the 2006 ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, the 2010 ISO 26000, the 2011 Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation and Development (OECD) and the 2011 Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (Ruggie Principles)”⁷⁰ (original underscored).

The previous considerations confirm that the UNGPs operate as a prominent part of a corpus juris on the subject matter under examination in the Americas. But that is only part of the story: through their appropriation as a de facto standard that is relevant in the region and has a universal origin, specifics on its implementation may vary or evolve through constant practice in the regional level, and eventually such practice may influence or inspire similar or alternative trends elsewhere, regionally or universally. In addition to proper regional bodies, the respective practice and implementation may also take place locally in societies within the region, with State and other actors participating in it, sometimes having an impact on regional and universal custom via their own developments -perhaps even influencing what the Inter-American Human Rights System says later in accordance with what dialogue and normative pluralistic theories say.⁷¹

We will now turn to explore if and how the Guiding Principles on Business and Human Rights and its concepts have been invoked in the local level, both by State authorities and actors and by transnational corporations operating therein.

The use and invocation of the Guiding Principles on Business and Human Rights by judicial authorities in the Americas

While it has been noted in other jurisdictions in the Americas, such as the Mexican one, that their judicial authorities can refer to the Guiding Principles⁷³ and that human rights must be protected from negative corporate impact -as the Mexican National Human Rights Commission pointed out⁷⁴ the UNGPs have been expressly referred to by the Colombian Constitutional Court, as discussed below. Furthermore, in their case law, judicial bodies such as the Argentinian Supreme Court have protected human rights when they collided with norms protecting some corporate interests.⁷⁵ Thus, some judiciaries in the region have been proactive in the protection of human rights from corporate abuses.

Just as it happened in the Inter-American Human Rights System, before the adoption of the UNGPs, in Colombia there was a tradition of permitting the use of remedies on the protection of fundamental rights against non-state actors, without the State necessarily being a respondent. This has been allowed when individuals are placed in a so-called “situation of helplessness” or vulnerability in relation to them. In this sense, Colombian Decree 2591 of 1991 permits the use of the tutela remedy against private parties when they are in charge of supplying public services, when they exercise public functions, when they threaten certain rights, or when the applicants are in a situation of helplessness or subordination in relation to them. Such possibility was defined and confirmed, among others, in judgments T-254/93 and T-202/12 of the Colombian Constitutional Court, which has defined that situation of helplessness as one in which individuals are unable to defend themselves physically or legally from aggressions, as explained in those decisions. Hence, victims have been able to invoke the tutela remedy against corporations under some circumstances, and have done so both before and after the adoption of the UNGPs, which have actually been cited in decisions of the Court.

A noteworthy decision that permitted the use of the tutela remedy when individuals are in a “situation of helplessness” precisely in relation to businesses is the Colombian Constitutional Court’s judgment T-732/16. The judgment expressly referred to the Guiding Principles on Business and Human Rights, describing their history and their main components; when describing the ‘respect’ pillar, the Court properly highlighted the relevance of the notion of due diligence. Finding that the corporate activity it studied in that case had a negative environmental and housing impact, the Court said that while companies do not have the same obligations that States do, they are under a “duty to respect rights and not cause harm.” Given the obligations that the State had, the Constitutional Court gave State authorities different orders aimed at the protection of the applicant, and also “urged the company to undertake preventative measures in relation to the possible harm that it may cause to houses that are found in the same situation as that of the applicant.”⁷⁶

This is one judgment that exemplifies how domestic actors can internalize and appropriate the language of the UNGPs and use discourses referring to them in ways that assume that corporations do have human rights obligations, and that permit asking businesses to do -or refrain from doing something. The case study also confirms how reliance on the Guiding Principles does not necessarily entail or require the regulation of completely new actions, being it sometimes sufficient for authorities to conduct already existing powers and competences in ways that expressly refer to business and human rights problematics and standards.

Another decision of the same Court, judgment T-657/13, also referred to the UNGPs, and likewise alluded to the idea (related to the respect pillar) that businesses must prevent or diminish the negative human rights impact of their operations, by citing Principle 13 of the UNGPs.⁷⁷

The Guiding Principles as the inspiration of developments of legislative State action and policies in the Americas

While there is still much to be done, being it important for different jurisdictions to address the subject matter in a more express and proactive way, it can be said that in addition to judicial action, Latin American States have taken other important steps in relation to business and human rights aspects and corporate complicity in serious abuses. Notable examples include a law enacted in 2015 by the Argentinian National Congress ordering the creation of a Bicameral Commission for Identifying Economic Complicity during the Last Military Dictatorship,⁷⁸ the goal of which was:

[...] preparing a report with participation of civil society regarding the consequences of the economic, monetary, industrial, commercial and financial policies adopted by the last civilian-military dictatorship and identify the economic and technical actors that contributed to and/or benefited from the dictatorship.⁷⁹

Another remarkable step was the amended Final Agreement for the Termination of the Conflict and the Building of a Stable and Lasting Peace between the Colombian Government and the FARC guerrilla, which envisages a System of Truth, Justice, Reparation, and Non-repetition in which all direct and indirect participants in the Colombian armed conflict that were involved in serious violations of human rights and international humanitarian law ought to recognize their responsibility. They are also subject to the (transitional) justice component of the agreement.⁸⁰ As argued elsewhere, such broad definition of participants likely encompasses, among others, those businesses that either perpetrated or were complicit to said abuses.⁸¹ This is an important step, insofar as transition to peace does require the accountability of everyone, no matter what their legal and ontological identity is, that participated in serious abuses. The underlying rationales of both the Argentinian and Colombian initiatives seem to share a desire to precisely bring about accountability and the revelation of the truth surrounding violations during periods in which their populations suffered heinous abuses, in some of which businesses regrettably participated and disregarded the dignity that all individuals have.

Those two measures were intended to address situations of crisis. Yet, National Action Plans are other important tools that seek to bring about compliance with the UNGPs at all times and have been considered to have importance in relation to the possibility of effectively protecting human rights and connected values.⁸² To the date of writing this article, the only Latin American State to have already adopted a National Action Plan was Colombia, with four others (Argentina, Mexico, Guatemala, and Chile) undertaking drafting processes to elaborate theirs.⁸³

As to the Colombian Plan, it introduces general objectives and specific purposes to bring about the effectiveness of the three pillars of the UNGPs. In regards to State protection, it encourages coordination between State agents and bodies, promoting and supporting private initiatives of observance of the UNGPs, and fostering civil society participation. Concerning the dimension of the corporate respect of human rights, the Plan promotes fostering a corporate culture that is respectful of human rights, asking for the integration of social responsibility considerations and providing incentives to companies that adopt the UNGP standards. Finally, it also endeavors to promote and supervise the effectiveness of both judicial and non-judicial remedies.⁸⁴

This Plan shows that States in the region and elsewhere may devise specific incentives and strategies that seek to bring about compliance with the Guiding Principles through different strategies and in a holistic manner, not exclusively through one set of actions. After all, multiple strategies, and not only judicial action (necessary though they are), are important for human rights to be respected by corporations and other non-state actors. Moreover, National Action Plans have been specifically motivated by the UNGPs themselves. Thus, in addition to setting forth -codifying and developing the shared principles of the Guiding Principles and other domestic and international standards (such as the OECD Guidelines for Multinational Enterprises),⁸⁵ their adoption can also lead to new actions that can help to address business and human rights problems as those faced in the Americas.

Reference to the Guiding Principles in the codes of conduct of corporations that operate in the Americas

Finally, it must be noted that some corporations that operate in the Americas have adopted codes of conduct or other statements that expressly mention and endorse the Guiding Principles on Human Rights. In this sense, companies have been prompted to publicly commit to them. The way in which this is done:

“[d]oes not necessarily need to be a stand-alone statement, but could be integrated into existing corporate statements and business partner codes of conduct. The statement must be embedded from the top of the company through all its functions, and be reflected in operational policies and processes as necessary.⁸⁶

Needless to say, such incorporation attests to the importance attached to the UNGPs nowadays. Regardless of the true intentions of the companies doing this, the inclusion of the Principles in their codes of conduct and reference to them in their statements is important and can generate two different effects. Firstly, by virtue of socialization, acculturation, internalization, and other processes, corporate culture, which is crucial and thus worthy of being paid attention to (as Ruggie did),⁸⁷ may end up being at least partly guided by it, with the subsequent impact this can have on operations. This is more likely to happen when the staff of companies internalize the message of the UNGPs and develop and implement their own commitments towards them, and also if units entrusted with human rights issues are constituted in the corporate structure and have certain relative autonomy, as liberal and bureaucracy theories suggest in regards to other subjects.⁸⁸

Secondly, as has been argued in the International Law Association, codes of conduct and “voluntary” guidelines, even when they do not produce direct legal effects, may indirectly generate them by virtue of the operation of the principle of good faith and related doctrines and institutions, such as that of estoppel. It may also happen that States ask companies to abide by their commitments -e.g. in consumer protection norms. Concerning these ideas, what the International Law Association said was the following:

Many non-State actors, e.g. corporations and armed opposition groups, commit themselves to upholding international law. However, they tend to do so as a matter of policy/soft law than as a matter of hard law. In so doing, they may avoid legal accountability. There may nevertheless be doctrines and principles that could be used to harden these soft commitments into hard law (duty of care/negligence/corporate organization/legitimate expectations/good faith/unilateral act.. .).⁸⁹ (original underscored).

Among the companies operating in the Americas that have adopted codes of conduct mentioning the UNGPs it is possible to mention Ericsson, whose Code of Business Ethics (Código de Ética Empresarial), both in its English and Spanish versions, expressly indicates the following:

We are committed to implementing the UN Guiding Principles for Business and Human Rights throughout our business operations. We strive to ensure that we are not complicit in any human rights abuses. We shall, in all contexts, seek ways to honor the principles of internationally recognized human rights, even when faced with conflicting requirements.⁹⁰

Other companies that also expressly refer to the UNGPs are Shell (“Our human rights approach is informed by the UN Guiding Principles on Business and Human Rights and applies to all of our employees and contractors”)⁹¹ and Coca-Cola, whose Human Rights Policy also mentions that its partners are encouraged to also observe them. The latter Policy indicates that it:

[I]s guided by international human rights principles encompassed in the Universal Declaration of Human Rights, the International Labor Organization’s Declaration on Fundamental Principles and Rights at Work, the United Nations Global Compact and the United Nations Guiding Principles on Business and Human Rights [...] The Human Rights Policy applies to The Coca-Cola Company, the entities that it owns, the entities in which it holds a majority interest, and the facilities that it manages. The Company is committed to working with and encouraging our bottling partners to uphold the principles in this Policy and to adopt similar policies within their businesses. The Supplier Guiding Principles applies to our bottling partners and our suppliers, and are aligned with the expectations and commitments of this Policy.⁹²

Another quite interesting example is that of Telefónica, which provides phone services in the Americas, among others, and indicates that there has been a progressive change triggered by the Guiding Principles on Business and Human Rights, which reflect the current consensus and serve as a national and international benchmark⁹³ -echoing some of the ideas presented in this article. Its Human Rights Commitment (Derechos Humanos: compromiso) says that the company is a member of the Global Compact, which it observes, and that it respects the UNGPs (“respetamos el marco establecido en los Principios Rectores de las Naciones Unidas sobre Empresas y Derechos Humanos.”)⁹⁴

Other companies have issued human rights statements and commitments without referring to the UNGPs but to other pertinent standards. Yet, they do sometimes mention concepts found in the Guiding Principles, without expressly citing them. Those statements can be found in the useful webpage of the Business & Human Rights Resource Centre.⁹⁵ Some notable examples of such companies, that operate in the Americas, include Siemens, whose 2009 Business Conduct Guidelines refer to the respect of human rights and mention the expectation that its employees, suppliers, and business partners observe the Universal Declaration of Human Rights (curiously, an instrument cited by many corporate statements that has also been considered to impose implied obligations on non-state actors),⁹⁶ the OECD Guidelines for Multinational Enterprises, the ILO (International Labor Organization) Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, the ILO Declaration on Fundamental Principles and Rights at work, and the UN Convention Against Corruption, among others⁹⁷ -needless to say given how those Guidelines were adopted prior to 2011, the UNGPs could not be mentioned. Other companies whose statements refer to some of those or other human rights standards are PepsiCo (also citing the Universal Declaration);⁹⁸ Gas Natural Fenosa, whose Human Rights Policy (PoUtica de Derechos Humanos de Gas Natural Fenosa) mentions the Global Compact, but also fails to cite the UNGPs;⁹⁹ Johnson & Johnson’s Statement on Human Rights;¹⁰⁰ McDonald’s Standards of Business Conduct;¹⁰¹ and Nestle’s Corporate Business Principles.¹⁰² Securitas’ Code of Conduct, in turn, undertakes “support and respect for fundamental human rights and recognises our responsibility to observe those rights when we conduct our business.”¹⁰³ Repsol, interestingly, refers to concepts found in the UNGPs as that of due diligence in its Human Rights Policy.¹⁰⁴

Finally, it is important to stress that there is still much to be done. Firstly, it does not suffice for companies to refer to the UNGPs or other standards, because, as logic suggests, commitments must be effective in practice, and it does not suffice for them to be formally adopted.¹⁰⁵ Furthermore, in 2016 the United Nations Working Group on Business and Human Rights pointed out, after a visit to Mexico, that several companies it examined participate in the Global Compact, indicate that they will observe its principles, and additionally present annual sustainability reports, but yet failed to demonstrate if and how those respective companies integrated a principle of the UNGPs as important as that of due diligence¹⁰⁶ in their respective operations.¹⁰⁷