Good evening to everyone.
It's my extreme pleasure and privilege to welcome you again
and to welcome in particular my good friend and colleague,
Humberto Cantu Rivera, from the University of Monterrey in Mexico.
He, Humberto is a professor there at the law school,
and he's also the rector of the, as you can see on the slide,
the Institute for Business and Human Rights,
or actually for Human Rights and Business.
Humberto received his PhD from the University of Paris,
where he is also, if I understood it correctly,
affiliated fellow or research or associated something.
So he is in both worlds, if you wish.
Humberto is also, at least in the past,
this is when we met, was very closely connected
to the Mexican Foreign Service,
when Mexico negotiated or participated in many negotiations
in the context of business and human rights.
And he is definitely one of the leading experts
on the topic in Latin America.
So that's why I'm very happy
that he will give his presentation
on international developments in business and human rights.
Specifically, I guess we should say,
experiences from Latin America.
Humberto, it's great that you're here with us tonight,
or this morning for you.
And thanks for joining us and you have the floor.
Thank you very much, Marcus.
And I must say, I'm very glad to join you virtually
for this talk.
I have to say that even if initially we had mentioned
that it all should say lessons from Latin America,
I thought it shouldn't be too presumptuous.
So let's talk about experiences from Latin America,
because at the end of the day,
I think everyone all over the world
is still learning about this topic
and how to put it into practice.
Now, I would like to begin my presentation today
by sharing with you some of the elements
that I will be discussing a bit of a summary
before I jump into the introduction.
And that's basically that my talk will be divided
in two different, from two different perspectives.
Number one, the developments from Latin America,
things that have evolved or appeared from Latin America
and come to the forefront of international organizations,
international negotiations, for example,
or even international norm making.
And on the second part, I will discuss the developments
within or in Latin America, because at the end of the day,
it's important to also acknowledge how,
even if it's less visible than other parts of the world,
there are many things that are evolving
and going on right now in the region
that at the end of the day contribute to this evolution
of the field of business and human rights globally.
So to do that, I would like to begin
by sharing some initial thoughts.
And the first one is whether Latin America
in the field of business and human rights
can be categorized as a leader or as a laggard.
I can say to some extent with certainty that both of them,
and of course it is natural for a region itself
to have more advanced countries moving forward
in a given topic and some that are moving
in that direction more slowly.
But first of all, I would like to highlight
how in general terms throughout Latin America,
there's been a general support to the UNDP
since the process started to move forward.
In conversations with several diplomats
from different countries of the region, for example,
I have received testimony of how many of their countries,
many of the foreign services were quite interested
in the processes leading up to the UNDPs,
especially 2008 with the representation
of the Protective Respect and Remedy Framework.
But also that has somehow translated
to the implementation of the UNDPs
in the form that we have seen more recently
in, well, the past decade,
through the form of public policies
or national action plans.
Now, I will not get into too much detail
on what the content of each one of these plans is
because first of all, they are publicly available
and second of all, I think there are many more elements
that we can discuss about business
and human rights in Latin America.
But just for the sake of argument,
it's important to note how three countries
have already adopted NAPs from more basic
to more complex, as you can see on the screen as well,
with Peru being the latest one
with a very interesting proposal
that encompasses everything from undertaking studies
on the scope and actual state of legislation
on given fields to promoting certain aspects
of corporate behavior directly with them
or in combination with them.
And some other countries in the region,
including Mexico, Argentina, Honduras, Ecuador, for example,
and potentially Brazil interested in this same scheme
and the idea of public policies.
But beyond the general support to the UNGPs,
it's important to highlight how leadership
has also come from Latin America
in the processes to develop international norms.
And this is not just in the latest iteration
on the treaty negotiations
that Marcus evoked a couple of minutes ago,
but also throughout the past 50 years,
we can see a clear mark in my view, at least,
of Latin American proposals
to promote more responsible business conduct globally.
And as a closing point in this introduction,
and this is just to open up the conversation,
I would highlight how this has somehow closely aligned
to this logic of Latin America
being the land of magic realism.
Of course, for those of you familiar
with Gabriel Garcia Martes,
you know that him and some other authors
are the leading writers from Latin America in this field.
And that field is characterized especially
by some of its excesses, some of its contradictions.
And that is precisely what, in my view,
we can see currently throughout the region,
how there is a creative,
but also sometimes excessive use of the law
that at the end of the day helps to norm development,
helps to clarify issues that are of relevance
for international law,
but sometimes falling into the excesses
of trying to over-regulate situations
that are by themselves particularly complex.
Now, having said that,
I would like to start this next part
with some developments from Latin America.
And I'm sure that several of you have heard already
or read already about several of them.
And let me start
with the Inter-American Human Rights System.
Between Washington, D.C., and San Jose,
there's been a multitude of situations,
a multitude of pronouncements and developments
that have taken place,
particularly in relation to the field of business
and human rights.
And throughout my research,
and especially some of my work
with Inter-American Commission on Human Rights,
one of the early cases that caught my attention,
because I mean, at this point,
it is not regularly remembered or brought to light,
is how Coca-Cola became entangled in Guatemala
in the late 1980s with labor rights.
That is, in my view,
and in that research that I undertook some years ago,
part of the initial strands of business and human rights
within that specific context.
Of course, it was a situation
where Guatemala was still undergoing some internal struggles
where Coca-Cola tried to basically avoid union
from forming or stop a union from forming
in their operations in Guatemala.
And that led to some labor rights abuses
and including some police force abuses.
But it was just one of the early cases that showed,
and pretty much about the promise of progress
on business and human rights from that specific perspective.
Now, moving forward from 1989, if I'm not mistaken,
that's when that case took place, to the late 2020s,
we see how the Inter-American Commission on Human Rights
has started to move forward in different areas
in this topic.
There is, for example, a report that is being prepared
on the role of private security providers and human rights,
a situation that has been prevalent
around mining operations in the region.
There are several projects are already underway
to work on climate change
and corporate responsibility in this field.
And of course, we have to highlight the important
and seminal report produced and presented in 2019,
but obviously published in 2020
by the Inter-American Commission on Human Rights.
For those of you who have been aware of this report,
I'm sure most of you have,
the Inter-American standards that are promoted
by the Inter-American Commission are somehow a challenge.
To some extent, in my view,
they challenge whether the UNGPs are a part
of international human rights law.
And if they are, then what does that mean
for international human rights law,
and especially for the Inter-American human rights system.
And in a very interesting report, very extensive report,
I had the pleasure of working with a team
of the special rapporteur.
There are several issues that come into play.
First of all, there is a very nuanced critique
of the restrictive focus of the UNGPs,
mostly because they identify, the report identifies
how they focus only on one of the dimensions
of the state duties in the field of human rights.
If we read the UNGPs
as part of international human rights law,
then of course we have to understand
how the duty of the state, as also explained by Surya Deva,
does not stop at just a duty to protect.
There is a duty to respect,
and it's especially a duty to fulfill,
that can also be activated in the context
of business and human rights.
And thus the report takes us beyond the scope
of pillar one of the UNGPs,
beyond the duty to protect,
to focus on the other obligations existing
under the American Convention on Human Rights.
Between respect and ensure, what does it mean, for example,
when we speak about state-owned enterprises,
what does it mean, for example,
if we have to ensure rights beyond a general duty
to protect from corporate human rights abuses,
the necessity to adopt all measures available,
so not stopping just at national election plans,
which the report criticizes, in my view, rightly,
as just one measure that, however, has some limitations
that need to be taken into account by states
and that have to be complemented by other type of measures,
including legislative and regulatory measures.
And finally, on a very slight reference
to private obligations, both in the context of Article 32
of the American Convention on Human Rights,
which stipulates that every person has,
and every individual has a duty
to respect the human rights of others,
which of course in collectivity can also be applicable
to moral persons or legal persons.
And in the dimension of trying to understand
the transversal character of human rights
across all fields of law.
Now I'll get to that at the last part of my intervention,
but just to give some hints of where this is going.
And of course, the report cannot be
without some controversy, because it alludes
to the direct effects of the American Convention
on Human Rights on businesses.
In some other recent matters
that I had the pleasure of working with them,
one of the elements that they were, for example,
presenting in one of the cases
brought before the Inter-American Court of Human Rights
was on whether the American Convention,
and especially the UN guiding principles
and the report issued by the Inter-American Commission
highlighted that there were direct effects
stemming from the American Convention
on Human Rights on businesses.
Now I will not delve too much into this
because I want to move forward to other points,
but it's important to highlight how,
even if the report adds to the understanding
of business and human rights
from the lens of the American Convention on Human Rights,
at the end of the day, it also falls into some of the excesses
that I was mentioning before, from the purpose, of course,
or from the perspective of public international law.
Now the commission has had this very prominent role,
but more importantly, the Inter-American Court
of Human Rights has been one of the key actors
that have contributed to the development
of standards in this field.
And we can identify very clearly
some of the original contributions
that are important for the business and human rights field
coming from San Jose.
First of all, the logic of the state responsibility
for the actions of non-state actors,
basically its first ruling ever on the merits
in Melasca Rodriguez versus Honduras,
and some other important contributions made by the court,
including the relevance of impact assessments
to the determination of state duties.
Of course, the court has never pronounced itself
on the basis of human rights impact assessments,
or not yet, at least, but they focus on environmental
and social impact assessment with a human rights perspective,
at the end of the day,
were things that were directly contributed by the court
and that are relevant to understand
how some of these pronouncements, at the end of the day,
have had some level of impact at the international level.
However, we see also in my view, two phases
of how the court has moved between these two areas
of law, basically.
Number one, it's been moving from the proactiveness
of the due diligence standard on elaborating
on the content and scope of state obligations
to protect human rights, especially in relation
to private actors that can cause negative impacts
on human rights, to the much more recent liturgy
of replicating the UNDPs.
If you look at the early case law, for example,
of the Inter-American Court, and by early, I mean, of course,
only 15 years ago with the Paraguayan cases,
we can see how the court made an effort,
an actual effort to interpret and develop the content
of obligations existing in treaties
through its interpretation, through its case law.
However, in more recent cases, including, for example,
in Martina Vera versus Chile, or for example,
in some other recent ones against Honduras and Miskitos,
the Miskito divers versus Honduras,
the court is failing to move beyond
what the UNDPs already say.
That is something that is there,
that could evolve in a very different direction.
And I would recommend reading a very recent blog post
by my friend Salvador Herencia, who just today, I believe,
posted something on these two recent cases.
Beyond that, however, I believe that there is needs
and a probable future to reinvigorate the relationship
between international, in this case,
regional and domestic law, and on a much more clear dialogue,
but actual dialogue between the UNDPs
and the American Convention on Human Rights.
Just to give some sense of how, at the end of the day,
the Inter-American system is trying to move forward
in this respect and to contribute directly,
as it did already in 2014, by invoking the UNDPs
in one of its rulings, to contribute
to the development of international law,
and especially of business and human rights.
Now, let me go in a different direction,
still from those developments from Latin America.
And I would like to focus very briefly for the next few minutes
on the current CRETE proposal that is being negotiated
at the UN and, of course, some of the other versions
that are starting to appear here and there.
Now, one of the key questions and one of the key criticisms
has been that the current CRETE process is basically
an initiative, of course, led by Ecuador,
that has tried to change or challenge the status quo
already achieved by the UNDPs and the somehow,
let's say, multilateral consensus
on the need for some level of corporate growth.
But if you look back through history,
you can see how, from Salvador Allende,
president of Chile, to the Mexican role
in the new international economic order efforts in the 1980s,
there has always been a presence from Latin America.
That is something that is not necessarily
presented as history, as facts,
and it's, at the end of the day, important,
because it shows some of the tensions that exist in the region
and that I'll get to in a couple more minutes.
Now, beyond this specific development
in the area of CRETE law, specifically,
we can see how the role of the chairperson,
rapporteur of the Intergovernmental Working Group,
for those of you who have followed closely,
has had a very important impact on the way that we see
these tensions at play.
For example, for the first three sessions with the former,
and now Minister of Foreign Affairs,
Maya Fernandez-Pinoza, and then her successor,
Guillon Blanc, we saw a very proactive role
in this push to change or to challenge the status quo
set up by the UNGPs and to move the debate forward
to a much less prominent version of that role
in the subsequent sessions
of the Intergovernmental Working Group.
That has a lot to say, in my view,
in relation to the position of Latin America,
because at the end of the day,
the region moves between foreign direct investment,
which is, at the end of the day,
and it's important to recognize it,
even for those that challenge the existing economic model,
it is the imperative model, or the model that exists,
and that is normally relied on everywhere.
So that's one thing,
the need to continue attracting foreign investment.
Indifference, because it must be said as well,
several states from the region are indifferent
towards the process, indifferent towards
the need to have more rules on this field.
And again, the mention of magic realism,
how we move between the excesses to come to the normality
of an intergovernmental negotiation,
from the excesses of trying to disrupt
the fundamental order of international things,
if we wanna call it that,
to trying to come to terms through one single instrument
that can solve many of the issues.
Of course, this is, in my view,
also very clearly reflected in the personality
of those conducting the negotiations,
but it also shows another side of the equation
that is not often relied or clearly spelled.
In a recent discussion with a master's student,
he was asking me, for example, whether, in my view,
China was a key player in the treaty process
and was just, or if it was,
just another global South country.
And I think what happens with China somehow also reflects
part of the tensions and the nuances
that we have to understand in this specific process.
And that is how the different economic realities
of international relations bring us
to several different positions of states.
It's not just that some states are recipients of SDI,
but actually, in many cases,
there is a large setup of trade and investment
within the region and beyond the region
that characterize these countries
not just as a typical case of global South.
That new appreciation or that new perspective
or this new economic reality of many of these states
lead to reframe the conversation
and not just to focus on some of the regions of the world
as recipients, but also as the home states
of many of these transnational operating businesses.
And that is something that, in my view,
affects the understanding of this specific field.
And finally, I would like to wrap up this specific point
with a very quick mention of whether it is
a Latin American crusade.
At the end of the day, the process,
which has not yet attracted sufficient attention
from many states or at least participation from many states,
has been characterized by one thing
that I would like to highlight as the procedural focus
of the legally binding instrument.
Of course, there are some states
that are more supportive of this process.
Some states are more reluctant to engage in this process,
even within the region.
But for those states that have actively gotten involved
in the process, the focus has been on trying
to produce something that has the procedural clarity
to make it a legally viable instrument,
from the terminology of abuses to the new
and controversial definition of business activities
of a transnational character that has led to
a lot of academic writings and criticisms,
many of them rightly so.
We can see how the position of the region,
in some sense at least, has been to challenge the excesses
of that magic realism and to try to bring it back
to something that falls just within the field
of realism of international law.
Now, having said that, I would like to move now
to some of the developments in Latin America,
which in my view are also relevant to highlight
how the region is slowly starting to contribute
in very specific and technical terms
to some of the debates on how to hold businesses
accountable for human rights abuses.
Now, with that, I would like to start
with the progressive implementation
of the business responsibility to respect.
The first point is how we can see this surge
of human rights due diligence legislation
and especially the uncertainty across Latin America.
As I already mentioned, we see that the region
has several important tensions between being home states,
host states, and basically the difficulty
of having to share both characteristics.
What does it mean for Latin American states
where the economy still depends a lot on the reception
of foreign direct investment to enact laws
that will probably impose some level of challenges
for businesses operating nationally?
Or what to do in relation to the operation
of foreign companies that can cause damage
to the environment or to human rights?
And that uncertainty at the end of the day
has led to one very specific point
that has been recently highlighted
in one interesting exercise,
but I'll get to that in a second.
And that is the role of corporate social responsibility
as a gatekeeper.
Now, for those of you who have followed more closely
perhaps the developments in Latin America,
one of the main challenges for the EU funded
responsible business conduct in Latin America
and the Caribbean project that is implemented by the UN,
the OECD and ILO is the difficulty in ensuring
that transition in the understanding of business
and human rights and the difference
with traditional corporate social responsibility.
If you look at most of the policies, for example,
of business associations,
you can find how many of them will still refer
to corporate social responsibility
even 10 years after the adoption of the UNDPs,
even with the proactive role of several of these states
in some of these processes.
And that is in itself part of a reaction
to this global movement to push forward
this agenda of prevention and mitigation.
That is something that to some extent has also translated
to some of the more recent normative developments
that have begun to take place in the region.
But of course, even with the human rights diligence search,
that doesn't mean that there's been a correct
and adequate translation to the Latin American reality.
Let me allude briefly to two of the most recent developments
in this field from the region.
Two years ago, if I'm not mistaken,
well, already in 2019, I think,
a Mexican senator decided to present a bill
on corporate responsibility and due diligence.
Now, the bill has caused a lot of,
has given way to a lot of questions,
has caused some controversy as well.
First of all, because of course it would be expected
that the private sector would,
as it has happened everywhere else,
oppose any sort of legislation on the field.
But curious enough, one of the results of this Mexican bill
was to also get the rejection from civil society
and some international organizations.
The reason for that is that,
to begin with, some of the confusions
that are already existent in the region,
including in relation to CSR, are translated into the bill.
There are some interesting developments,
including how to present this type of obligation
for small and medium companies
or small and medium enterprises.
But at the end of the day,
it is necessary to have a clearer view
of the context of the country to be able to present
a bill that has the possibility of real implementation.
But at the moment, at least as far as I know,
the bill has not moved one inch since it was presented.
Basically, it goes to the extremes of very detailed
regulation without having a very clear focus
of what it really wants to achieve.
That bill has been recently complemented
by a Chilean constitutional proposal
on the obligations of legal persons.
This constitutional proposal was just tabled,
I believe, about six or eight weeks back.
And it tries to introduce within
the Chile's constitutional process
that is currently underway,
an article in Chile's new constitution
that stipulates obligations for businesses.
But a big question arises here, at least for me,
and that is whether a constitution,
which is traditionally understood
as a set of general principles
that help to give some level of sense and order
to government institutions and to stipulate
some specific rights and economic model, for example,
if it's the right place to actually put a reference
in the terms that it is presented at this time.
If you look at the constitutional proposal,
what it says is basically that businesses
will have a responsibility to respect human rights
and to take measures to prevent, mitigate,
and redress any wrongdoings.
But of course, that would probably,
I mean, I cannot say if that will have, you know,
the luxury of moving forward or not,
but it is very clear that there are some tensions
as to how actually present and introduce
this type of mechanisms within the legal spheres
and the constitutional spheres of our countries,
but especially, specifically for the case of Chile,
I think it's necessary to understand
the role of the constitution,
how it can be better presented,
probably in the sense of, you know,
that the economy will have to be led through a model
that respects human rights and the environment,
and then let secondary legislation
elaborate on these issues.
But having said these specific elements
of how there is some level of progress
in the implementation of the corporate responsibility
to respect human rights,
I would like to move to one other theme
that has not, in my view yet,
had or received enough attention,
specifically in relation to business and human rights.
As some of you may know as well,
2022 marks the 10th year anniversary
of the UNICEF Child Rights and Business Principles.
This agenda that developed after the UNGPs
and that has, at the end of the day, reframed
or is trying to reframe the role that UNICEF undertakes
in relation to businesses that it works with.
One of the key elements that I've noticed
in recent years especially
is how many of the specific points of the CRBP agenda,
notably in relation to child obesity
and the relation of marketing practices, for example,
on the issue of child pornography
and the responsibility of internet service providers
in relation to family-friendly policies in the workplace
and including child labor,
have been able to successfully capture
some legislative momentum
or to get some legislative momentum
and to be introduced as specific norms and regulations
in the laws of many of the Latin American countries.
These developments point, in my view,
to something that is still missing
and that we may want to focus on
as we think about based on the human rights,
and that is about an industry-specific approach.
For those of you who are familiar
with John Rogge's book on the topic,
and I'm sure many of you will be,
you may recall that one of the chapters
is called No Silver Bullet.
And precisely, I think that is something
that we are seeing right now with the HRDB phenomenon,
how we're trying to encompass everything in one single effort,
whereas perhaps industry-specific approaches
could be more beneficial to capture the challenges
of the specific sectors, industrial sectors,
and also more effective in ensuring protection
of the different parties involved.
Now, the CRBP agenda and its implementation
in Latin America is one notable exception,
perhaps something that has been successfully led
because it hasn't had the same, let's say, spotlight
than the general BHR movement,
but it shows us another way in which this progress
can actually take place.
Now, this takes me to two more points on law,
or laws, and justice, and the way that legislative
and judicial developments in the region
have also been trying to make some level of progress,
to achieve some level of progress
in relation to business and human rights.
Now, the starting point for me,
and I believe I've discussed this with Marcus
to some extent recently, is on how to focus
on the issue of human rights diligence.
And to me, the starting point is to understand
the relevance of the objective it seeks to fulfill,
and that is, of course, prevention.
Now, if human rights diligence is basically the tools
to achieve prevention, then as a procedural standard,
it is important to understand, then,
the complexities of the different industrial realities.
Again, going back to the CIBP example,
what was successful in those specific cases
was to focus on the way that different sectors of business,
different industries, at the end of the day,
work and what the main challenges
they may pose for human rights.
Of course, for example, any business may engage
in child labor, but what happens, for example,
in relation to marketing practices?
Should we have specific standards tailored
for that specific challenge for business and human rights?
In my view, it's likely that that will probably
yield a better result, and that is something
that has become probably more and more visible
in recent years, especially in the past two or three years,
where this effort to move into the legislative territory
has led to a lot of debates, opposition,
and, of course, business lobbying to prevent rules
from being enacted.
But that also brings out something else.
What role for governments?
The German government, the Norwegian government,
the British government, or even the French one,
have been recently grappling with this question
on whether the role of law should be on monitoring
and the capacity of businesses to just receive reports
and analyze them and see if everything
is being complied with or explained.
Should we focus on an initial sanctions?
Should we focus on liability as a French model?
Or, in my view, the question should be,
should we focus on all of them?
Perhaps that is something that would be important
remembering, especially as Latin America,
which has this very insistent regional court
on the transversality of state obligations
on focusing on all of them and importance of ensuring
that everything is considered
when we think about legislative options.
Now, two further challenges that I want to highlight
before I move into my next point
are the differing standards, number one,
and the focus of prevention.
On the first point, I would like to highlight how,
in my view at least, some of the discussions
that are currently underway
are basically just replicating the same dilemmas
that have been already identified
as far back as 20 years ago.
In one early BHR writing, I remember seeing
that someone referred to one in Rome
will act like the Romans do.
And that is something that probably is being replicated
right now with this discussion on human rights,
due diligence, and that needs to be understood clearly
from the Latin American perspective
to be able to achieve the protection that we are seeking
or the prevention that we are seeking.
In that specific article, and I can share, of course,
the reference later on, one of the key issues
that were found was how even if home states
had very developed regulations on the topic,
well, at that time, not yet human rights due diligence,
many of the issues were found when in the operations
of the company in foreign territories or foreign countries,
those countries did not have the same level of regulations.
And that calls for, in my view, a serious reflection
of what is needed to ensure that
human rights due diligence legislation
that is being adopted particularly in Europe
and North America will be able to be effective.
And the best case that I can think of right now
is the EDF litigation relating to Mexico in Paris courts.
One of the main issues, for example, that are there
is the fact that not all countries, for example,
have ratified all of the treaties.
For Mexico, and let's assume that is the case,
there is this obligation to ensure free prior
and informed consultation to indigenous populations
as a result, not just of the constitution,
but also of ILO convention 169.
But that same treaty has not necessarily
been ratified by France.
And therefore the question is,
which treaty should companies focus on
when they are doing their human rights risk assessments,
for example, should they focus on the rights
that are being recognized in their home state?
Should they focus on the rights that are being recognized
in the host state?
And especially what happens if the country
does not recognize even in its constitution,
one of these set of principles,
that in my view can lead to important challenges
that need to be further analyzed and discussed
to be able to come up with adequate solutions
that work for all, and especially to ensure
that prevention has the right focus.
Perhaps, and that is, I'm sure one of the sentiments
of many of the civil society organizations in North America,
the focus of the current HRDD model
is on prevention from liability,
not on prevention of damage necessarily.
And that distinction at the end of the day
is one of the key challenges of implementing the UNGPs,
how to ensure that the focus is not necessarily
just on how to ensure that a company performs right
or performs well, and then it is free from liability,
or to focus actually on ensuring that people
who are on the ground and the environment
that they depend on is not damaged by corporate operations,
even if an adequate HRDD process was undertaken
in the upper spheres of the supply chain.
Now, this takes me to one further point,
and that is almost coming close to my last slide,
and that is the role of justice,
specifically in Latin America and some of the contributions
that have recently taken place in the region.
First of all, if BR2R,
the Corporate Responsibility Respect,
and particularly human rights diligence,
has a focus on prevention, and that is something
that of course exists already
in many domestic legal systems, if not all,
I can see very clearly how there is a relationship
between this duty not to cause damage to third parties
and the Corporate Responsibility Respect.
Even though Ruggie and the Office of the High Commissioner
have repeatedly said that the Corporate Responsibility
to Respect was not based on a legal platform or legal basis,
I think that the analogy can be made between both of them
and has actually been made by different courts
throughout the region.
But before I get into that, and I would like to highlight
one specific aspect that has also come up
in several discussions recently,
and that is on the different focus
in relation to reparations.
As all of you know, the Inter-American Court
of Human Rights has been for years recognized
for having a very thorough and broad scope of reparation.
In this regard, one of the main issues
that we are seeing in domestic litigation,
especially in the region,
is the focus of non-pecuniary reparation
that normally comes through constitutional protection claims
or in many cases, amparo processes.
For those of you who may not be aware of amparo,
it is a constitutional claim that can be presented against,
in many cases, a state institution
or in some countries also against private parties
to stop them from continuing in violation of some rights.
And in many cases, it has a reparatory character, number one,
but it can also have a restitutive character,
which is one of the main advantages of this model.
Now, this focus and this role
of constitutional protection claims
has a lot to say about business and human rights
and has had a lot of effects already
in relation to business and human rights.
And I'll get a couple of examples in this next point.
Even if at the global level,
and we can see that in the treaty negotiations,
there are many aspects that are still undefined
or uncertain, at least in relation to access to justice,
particularly those of a more procedural nature,
we can see how many of the different judgments
in different countries have actually already been able
to push forward the agenda in many of these issues.
For example, in a very well-known case in Colombia,
for example, the Supreme Court of the state
said that a company had a duty to prevent
when it should have foreseen, for example,
that its operations could cause damage
because of their location.
It was a case involving guerrilla
and also some impact on the environment
and on the livelihood of several people,
several hundred people, I think,
who were damaged as a result of the explosion
of an oil pipeline that was sabotaged by this rebel group.
Even if the company, of course,
had nothing to do with the operation
and with the attack itself,
the court recognized this specific duty.
It should have known that the region was a risky region
because of the situation ongoing in the country.
Then, of course, it should have taken measures
to put its oil pipeline somewhere else.
And the same reasoning has been applied by other courts,
including by Mexico's federal courts
in relation to its state-owned company.
In relation to statutes of limitation, for example,
a case in Argentina stipulated that whenever there was
a commission of a gross human rights violation,
in this case, an enforced disappearance,
it would be feasible to consider
that the statute of limitations would also be,
would also be in existence, particularly,
for cases involving this type of human rights violations.
As you know, enforced disappearances are not affected
by statutes of limitations.
They are not, there is no prescription applicable there.
And the court found, at least in the second instance,
that the same logic should be applicable
whenever a civil claim was presented.
This is important because it presents an evolution
of the logic of statutes of limitations,
and especially on the right to remedy
in cases of gross human rights violations.
In this case, a company was involved in the arrest
and presentation to, well, I'm sorry, the arrest
and bringing forward to the authorities of a person
who was involved in trade union actions.
And more recently, in a case solved
by the Mexican Supreme Court only two months ago,
well, where the resolution was only issued two months ago,
the court, in a case of the wrongful death of a woman
within the factory where she worked,
found that the company had a burden of proof
to show that it had taken every reasonable measure
to prevent the accident from happening.
And because it failed to do so
and also failed to communicate adequately
with the relatives of that person,
it was found liable under civil law, particularly.
All of these elements, at the end of the day,
touch upon several of the issues that we are seeing discussed
in European tribunals, in European national courts,
and even in other parts
of the business and human rights field.
And that's why, in my view, some of these cases,
at the end of the day, can show some light
in relation to how to move forward in this regard.
One final point before I jump to my conclusion
is on the importance of the conventionality control,
and especially the transversal effect of human rights,
which is one theory that has been recently put forward
more clearly by the Mexican Supreme Court,
and especially access to justice.
In one case, that is, I believe, still ongoing,
but at a lower level, in a second instance, court,
a person sued Google Inc for its failure
to control its blogger platform from being used
to libel that person.
In a series of twists and turns, basically,
the Supreme Court arrived to the conclusion,
well, I'm sorry, not the Supreme Court,
the federal court arrived to the conclusion
that because of the conventionality control doctrine,
because of the transversal effect of human rights,
and particularly because of the obligations
to ensure effective access remedy,
even private international law rules
had to be interpreted under this specific scheme.
And that, of course, leads to a potential presumption
of the potential transformation of the rule of law
to ensure that it is interpreted
accordingly to human rights standards.
Many of these elements, as you can see,
are still developing, as we will present
in a couple more weeks.
And a study of seven jurisdictions
has shown how many judgments in Latin America
already address business and human rights elements or issues,
and that shows how there is a very constant
and important contribution
coming from many of these national courts.
Now, that leads me to one very quick set of conclusions,
and the first one is on the need
for some more Atlantic dialogues.
How do we make sure, especially with Europe being
at the forefront of the discussion on legislation
on the corporate responsibility to respect human rights,
that it is sufficiently effective?
In my view, it is necessary
to have this bi-directional conversation,
not just from the focus of the home state,
but also from the perspective of the host states.
And the same happens with Latin America.
When we see that several of their companies
are already operating in many other regions of the world,
well, it's important to understand the implications
that this type of transnational business activity has for them,
and of course, also for the states in the region.
A second point that I would like to highlight
is how we as a region, and Latin America as a region,
is moving between rules and rulings.
If rules are perhaps not clear enough or not detailed enough,
rulings are basically saying otherwise.
They're saying, well, you don't necessarily need new rules
to make sure that the respect for human rights
and the environment actually takes place
at least in a judicial setting.
So that's an important point
that is necessary to keep in mind.
A third one is this false dichotomy, in my view,
of the different forms
in which countries should regulate companies.
Because of these transversal effect of human rights,
and specifically the doctrines
of the Inter-American Court of Human Rights,
I believe that it is now a good point to start looking at
how the state can fully comply
with its different human rights duties
in relation to business activities.
It's not just about protection, it's also about respect,
and in some cases, it may even go as far
as a duty to fulfill.
But that's something that needs to be thoroughly examined
and to, well, try to avoid falling in this trap
of whether we need to focus more on monitoring
or more on liability or more, for example, on regulation.
I think that three of them are equally applicable.
And finally, well, one final thought,
at the end of the day, since the 1970s,
Latin America has been a business and human rights laboratory,
and that is something that shows not just some, you know,
unfortunate periods in the region's history,
but also shows some promise on how it can contribute
to a global discussion that needs to be more global
than it is nowadays.
I would like to stop at that point,
and of course, if there are any questions or comments,
they are more than welcome.
Thank you.