CONCURRING OPINION OF JUDGE L. PATRICIO PAZMIÑO FREIRE CASE OF THE MISKITO DIVERS (LEMOTH MORRIS ET AL.) V. HONDURAS JUDGMENT OF AUGUST 31, 2021 1. In this opinion I wish to express my agreement with the decision of the majority regarding the endorsement of the friendly settlement agreement signed between the victims and the State of Honduras. As an Inter-American judge, I am very pleased that an agreement has been reached that recognizes the reparation interests of the victims in this case. The task now facing the Court is to monitor compliance with this judgment in accordance with the terms under which the reparations were adopted. Without wishing to delve further into this point - since the challenges and opportunities for the implementation of the judgment can be addressed later when the Court examines the matter - I am particularly interested in reinforcing the decision based on an analysis of the subject matter of this case. Accordingly, I will review the evolution of the issue of business and human rights and the need to reformulate the rules of attribution of international responsibility; I will then address public policies and the role of reparation mechanisms for cases involving private companies and human rights. a) Evolution of the issue of business and human rights and the rules of attribution of responsibility 2. I should begin my analysis by pointing out that this is not the first case before the Court involving private companies that have engaged in actions or omissions which resulted in human rights violations. In several cases, which now comprise a substantial part of the Court’s constant case law on the rights of indigenous and tribal peoples, in relation to extractive industries and communal property rights, the State’s tolerance, collaboration or omissions have resulted in human rights violations committed by companies. For example, in the case of Sarayaku v. Ecuador, oil exploration contracts, together with prospecting and exploration activities, led to internationally wrongful acts. Some of these actions were carried out by the State at the time of granting concessions or contracts; but others predominantly, and even exclusively, involved the participation of private companies, such as the implementation of prospecting and exploration activities. 1 This case highlights a problem that has been repeated in different cases before the Court, such as Kaliña Lokono v. Suriname 2 or even the recent case of Lhaka Honat v. Argentina, 3 where the boundaries between the responsibility of the State and that of private corporations converge and reinforce each other in the form of feedback that generates human rights violations. It is appropriate to ask whether the rules of attribution of international responsibility, as traditionally established, whereby responsibility is primarily attributed to the State, should remain unchanged. These cases - and those yet to come - have an essential peculiarity, which is the fact that private companies operating with interests in various countries, have activities in different States and are generally incorporated in multiple and diverse jurisdictions. These companies have become true global players. The question arises as to whether international law as it is currently configured, heir to the 1 Case of the Kichwa Indigenous people of Sarayaku v. Ecuador. Merits and reparations. Judgment of June 27, 2012. Series C No. 245 2 Case of the Kaliña and Lokono Peoples v. Suriname. Merits, reparations and costs. Judgment of November 25, 2015. Series C No. 309 3 Case of Indigenous communities Members of the Lhaka Honhat Association (Nuestra Tierra) v. Argentina. Merits, reparations and costs. Judgment of February 6, 2020. Series C No. 400