the Guiding Principles on Business and Human Rights, 10 sets out the obligations that should
guide States in guaranteeing human rights. It also emphasizes the fact that private companies
must respect those rights. Undoubtedly, both are irrevocable truths. However, I leave for
reflection the question of whether we are facing a process in which companies can also be
recognized as responsible for human rights violations. That is to say, not only or exclusively
the States in their relationship with corporations, but in addition the corporations per se as
actors of international law.
b) Public policies and the role of reparation mechanisms for cases involving
business and human rights
6.
The issue of the international responsibility of corporations is closely linked to the
consequences of the violation, in the understanding that it is a principle of international law
that, in the event of a violation, reparations must be made. 11 A simple and realistic
interpretation would lead us to think that, if the company was the one that caused the
damage, it should also be the one to make reparations. It seems that the Court has already
taken an initial step in the case of the Kaliña and Lokono Peoples v. Suriname, in which it
determined that the State should, in conjunction with the mining companies, implement
sufficient and necessary actions to rehabilitate the affected area. 12 Clearly, in this case, the
“ownership” of the reparation measure was shared with a company.
7.
In the case sub judice, the Court adopted various measures of reparation that were
endorsed in the agreement between the parties. Particularly important are the measures
related to public policies aimed at social protection and the productive diversification of the
local economy. However, it would have been interesting – though clearly beyond our role
bearing in mind that this was a mutual agreement between the parties- to have a reparation
measure that mandated the participation of corporations in the tasks of assistance, mitigation
or even in the social development projects proposed as reparations.
8.
The issue of business and human rights is one of the greatest challenges in the interAmerican public order. Taking into account the context of Central America, the Caribbean and
South America, where social inequality, high levels of migration, unemployment and
informality converge, it is essential that the international system, especially the courts and
tribunals, rise to this challenge. At the same time, the new technologies pose major challenges
that must be addressed firmly and from a progressive and integrated human rights
perspective; an endeavor and a challenge that we bequeath to the future new composition of
the Court.
whether international human rights law should apply to this reality to its full extent. Y. M. Kolosov & E. S.
Krivchikova: Mejdunarodno pravo [International Law], Uchebnik. Mejdunarodni otnosheniya, Moscow, 2000, p. 86
10
Office of the United Nations High Commissioner for Human Rights (OHCHR). Guiding Principles on businesses and
human rights: implementing the United Nations “Protect, respect, Remedy” Framework, HR/PUB/11/04, 2011
11
Article 63(1) of the American Convention on Human Rights grants the Inter-American Court the power to order
that the victim be guaranteed the right violated, as well as to order measures of reparation that include both
compensation and other additional measures. For the Court, every violation of an international obligation that implies
harm entails reparation.
12
Case of the Kaliña and Lokono Peoples v. Suriname. Merits, reparations and costs. Judgment of November 25,
2015. Series C No. 309
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