By Daniel Cerqueira
Senior Program Officer at DPLF
Academic and Research Coordinator of IDEHPUCP,
and an external consultant to the IACHR
On April 6, 2016, the Inter-American Commission on Human Rights (IACHR) published a report entitled “Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities.” The report evaluated the patterns of human rights violations within the context of extractive industries in the Americas, particularly those adversely affecting indigenous peoples and Afro-descendant communities.
In one chapter of the report, the IACHR examines the main challenges related to the right of ethnic groups to prior consultation and free and informed consent. The inter-American standards that were systematized in the 2009 report on Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources were broadened in several respects, including the right of indigenous peoples and Afro-descendant communities to participate in the benefits derived from economic activities in their traditional territory. This issue had been developed especially in the jurisprudence of the committees and thematic rapporteurships of the United Nations, which was taken up and expanded by the IACHR.
Another novel point concerns situations that require consent rather than mere consultation. In its groundbreaking judgment in the case of Saramaka v. Suriname, the Inter-American Court held that consent is required for “large-scale” plans or projects, but it did not specify the scope of the concept in this or subsequent judgments. The Commission has addressed the matter and provided guidelines on this issue, taking account of the size of the project, objective data on its volume and intensity, and the human and social impact of the activity. Accordingly, a combination of objective and subjective elements are used to determine its applicability.
A substantial part of the IACHR’s report is dedicated to documenting emblematic cases of human rights violations committed in the extractive industries context in recent years. In an effort to shine a spotlight on some of the most significant impacts, the report addresses matters concerning land and natural resources (such as water issues, the impoverishment of agricultural soil, and changes in systems of production); personal health and safety (such as the presence of heavy metals in the body); the criminalization of leaders who oppose extractive projects; and cases involving the murder of leaders in these contexts.
However, one of the most innovative sections of the recently published IACHR report deals with the unprecedented position of the IAHRS with respect to the obligation of the States—both the corporations’ home States and the host States in which the extractive projects are located—to bring their domestic laws and public policy into line with the objective of preventing, mitigating, and providing redress for human rights violations. Given that such violations are virtually inherent in natural resources exploration and exploitation, the IACHR has been a leader among international bodies that have sought to broaden the scope of human rights instruments when violations are committed by private actors favored by a regulatory framework that lacks the proper safeguards.
Based on obligations contained in the inter-American instruments, the Commission maintains that the hemisphere’s States have the duty to develop and implement an appropriate regulatory framework for the protection of human rights vis-à-vis corporations. This entails significant changes to the laws applicable to corporate activities in order to make them consistent with human rights and provide incentives for corporations to observe them.
The Commission also addresses the duty of prevention and maintains that, adapted to the extractive context, this duty requires that a given project’s impacts on human rights be identified before permits are granted. It specifies that, once the potential risks are known, preventive measures should be established to prevent the infringement of rights. However, the Commission underscores that prevention must not be limited to the initiation or authorization of the project, as commonly occurs in the region; rather, it must be extended for the duration of the project’s operation and ensure that the States actively supervise and oversee the corporation’s activities.
Another area of concern is access to justice, which tends to be avoided in contexts characterized by enormous power asymmetries among the corporate, state, and social actors involved. The Commission seems to understand it as such when it asserts that there is a “serious situation of impunity” in the hemisphere with regard to human rights violations committed in the context of extractive or development projects, especially in the case of transnational corporations, due to the presence of significant legal and factual obstacles. The Commission reaffirms that the States must guarantee access to mechanisms of justice and reparation, taking account of the well-established inter-American standards on the issue, which means taking positive measures to reduce existing barriers and allowing those mechanisms to be effective.
In its analysis, the IACHR develops more specific standards on the duties of the home States of extractive companies. Although the section of the report that discusses this issue does not use the imperative language used by the United Nations committees and thematic rapporteurships that have been addressing extraterritorial responsibility, the report does have the added value of being the first time an IAHRS body has taken a position on the subject.
The IACHR’s report concludes with a list of recommendations in order for the home States of extractive companies to establish systems to monitor, control, and supervise the activities that such companies carry out within the jurisdiction of other countries. The purpose of this is to prevent human rights violations in the territory of host states of extractive investments, and to provide mechanisms for access to justice and reparation in the jurisdiction of the home states where such companies are headquartered. The standards developed in this report are an important contribution, but it is now incumbent upon the Commission to resolutely promote their observance in order to fully realize the regulatory and institutional frameworks that will effectively protect individuals and communities from harm caused by extractive companies.
 We recall that the most important advance in the United Nations in this regard is the Guiding Principles on Business and Human Rights, drafted by John Ruggie and endorsed by the Human Rights Council in 2011. However, it is a non-binding instrument, and therefore an inter-governmental working group was established in 2014 to draft a binding international instrument on the subject.