Prompting the ETOs Debate in the Inter-American Human Rights System

Daniel Cerqueira, Senior Program Officer, DPLF

This article was published as a chapter on the book, For Human Rights Beyond Borders: Handbook on how to hold States accountable for extraterritorial violations by the ETOs Consortium

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In October 2013, a number of Latin American civil society organizations (CSOs) participated in a hearing before the Inter-American Commission on Human Rights (IACHR) entitled “The impact of natural resource extraction in Latin America and the responsibility of host States and corporations’ home States.”[1] In April 2014, a er three years of research, a coalition comprised of CSOs based in Chile, Colombia, Honduras, Mexico, Peru, and the United States published a related report on the impact of Canadian mining companies in Latin America and Canada’s responsibility.[2] The report examines 22 mining projects carried out in nine countries in the region and identifies a pattern of human rights violations and its underlying causes – notably in Canada, the home-State of the companies involved in the abuses.

The report was officially presented to members of the IACHR in April 2014 and prompted the IACHR a er its 150th session to raise awareness as to “emerging issues such as corporate responsibility as regards the impact of extractive industries on the observance of human rights, especially the impact on certain groups such as Afro- descendants and indigenous peoples.”[3]

Eighth months later, 29 Canadian CSOs under the umbrella of the Canadian Network on Corporate Accountability (NCA) participated in a thematic hearing at the IACHR with the presence of a delegation representing the Canadian government.[4] During the hearing, the petitioners urged Canada to develop and implement a binding corporate accountability framework to ensure Canadian companies and State actors — including embassies and government-controlled agencies that provide financial support to mining companies — remain accountable and respectful of human rights abroad. The petitioners reiterated the argument based on ETOs addressed in the report on the impact of Canadian mining in Latin America, asserting that Canada not only fails to prevent and remedy corporate abuses abroad, but also provides political, legal and financial support to mining companies involved in serious human rights violations in Latin America. Finally, they recommended the creation of objective, impartial, and effective measures to monitor and investigate allegations of human rights abuses committed by Canadian mining companies, and to include international human rights standards in the regulation of the public and private credit and investment agencies that nance extractive activities.[5]

After concluding its 153rd session, in November 2014, the IACHR called upon States to take “measures to prevent the multiple human rights violations that can result from the implementation of development projects, both in countries in which the projects are located as well as in the corporations’ home countries, such as Canada.”[6]

During its 154th session, in March 2015, ETOs were again addressed at a hearing on “Corporations, Human Rights, and Prior Consultation in the Americas”.[7] One of the issues raised was the extraterritorial responsibility of States, and in particular, Canada’s responsibility for the financial support provided to mining companies involved in human rights abuses in the region. At the end of the session, the IACHR emphasized that “it is essential that any development project is carried out in keeping with the human rights standards of the inter-American system”.[8]

Constant conversations with members of the IACHR, the Inter-American Court of Human Rights, and staff members of their Executive Secretariat have also allowed members of the ETO Consortium to prompt the incorporation of ETOs into the agenda of the Inter-American Human Rights System (IAHRS) bodies. Their participation in sessions of the two UN HRC Working Groups whose mandates are related to transnational corporations and human rights was also useful for sharing updated information with several IAHRS stakeholders.

After more than three years of advocacy aimed at placing ETOs on the agenda of the IAHRS, the most concrete result came on April 6, 2016, when the IACHR published the report “Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities”.[9] One of the report’s chapters addresses the obligation of 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.

For the first time, the IACHR developed specific standards on the duties of the home States of extractive companies related to human rights abuses committed abroad. The IACHR’s report concludes with a list of recommendations for the home States of extractive companies to monitor, control, and supervise the activities that such companies carry out within the jurisdiction of other countries.[10]

The ETOs debate has also been prompted in the IAHRS by Colombia’s request for an Advisory Opinion by the Inter-American Court of Human Rights with respect to the interpretations of Art. 1(1) (Obligation to Respect Rights), Art. 4(1) (Right to Life), Art. 5(1) (Right to Humane Treatment/Personal Integrity), and 4(1) and 5(1) of the American Convention on Human Rights (also known as Pact of San Jose), which clearly places the issue of States’ ETOs on the Court’s table.[11]

[1] Participants in the hearing included Colectivo de Abogados José Alvear Restrepo (CAJAR), Fundación para el Debido Proceso Legal (DPLF), Centro Hondureño de Promoción y Desarrollo Comunitario (CEHPRODEC), Red Agua, Desarrollo y Democracia (REDAD), Asociación Marianista de Acción Social (AMAS). For information on the hearing see: http://www.dplf.org.

[2] Working Group on Mining and Human Rights in Latin America (2014). The impact of Canadian Mining in Latin America and Canada’s Responsibility: Executive Summary of the Report submitted to the Inter-American Commission on Human Rights. Available at: http://www.dplf.org.

[3]IACHR Wraps Up its 150th Session. Media statement, Washington D.C., 4 April 2014. Available at: http://www.oas.org.

[4]Images of the hearing are available at: http://www.youtube.com.

[5] For a more comprehensive explanation of the hearings and its impact in Canada see, Shin Imai & Natalie Bolton. “The Canadian Government Does Little to Curb Problems with Canadians Mining Companies in Latin America”. Aportes DPLF. 20 (August 2015): 24-26. Available at: http://www.dplf.org.

[6]IACHR Wraps Up its 153rd Session. Media statement, Washington D.C., 7 November 2014. Available at: http://www.oas.org.

[7] Images of the hearing are available at: http://www.youtube.com.

[8] IACHR Wraps Up its 154th Session. Media statement, Washington D.C., 27 March 2015. Available at: http://www.oas.org

[9] IACHR. Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities. OEA/Ser.L/V/II. Doc. 47/15. December 2015. Available at: http://www.oas.org.

[10] Ibid., p. 179. For a more detailed assessment of the IACHR’s report see, Cerqueira D. & Blanco, C. (May 2016). IACHR
Takes Important Step in the Debate on Extraterritorial Responsibility and States’ Obligations regarding Extractive Companies. Available at: http://www.dplfblog.com.

[11] Colombia’s request for an Advisory Opinion by the Inter-American Court of Human Rights Court is available at: http://www.corteidh.or.cr.

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