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Inter-American Commission on Human Rights to Consider “Home Country Liability” for the Extraterritorial Actions of Transnational Corporations

Posted November 07, 2013

by Benjamin Hoffman

José de Jesús Orozco Henríquez, president o the IACHR [1]

In an exciting development in the corporate accountability world, the Inter-American Commission on Human Rights, for the first time in its history, will directly consider the question: can a corporation’s home country be held liable for the actions of that corporation abroad, or for failing to provide a remedy to its victims?

This question was squarely presented before the Commission on November 1, 2013 by a coalition of over 30 NGOs and organizations of affected peoples at a thematic hearing on “the human rights situation of those persons affected by mining in the Americas, and the responsibility of both the host countries and the mining companies’ home countries.” Up until this point, activists and the Commission have focused almost entirely on the responsibility of only the “host country” – the country where the actual operations take place – giving the “home country” – the country where the corporation is headquartered – a free pass.

The petitioners at the thematic hearing are looking to change that tendency. The petitioners were careful not to detract from the wealth of problems riddling the host countries – lack of prior consultation, the criminalization and violent repression of public protests, the weakness of norms intended to protect the environment and affected communities, and lack of access to justice. These issues, they noted, certainly contribute both to the persistence of human rights violations committed by mining companies and to the situation of vulnerability and hopelessness often felt by communities responding to these violations. But beyond those problems – which receive a lot of attention – the petitioners sought to bring an additional focus to the ways in which home countries are also responsible.

To make their case, the petitioners presented a report in which they analyzed patterns of human rights violations emerging from 24 mining projects in the Americas run by Brazilian or Canadian companies. Then they turned their attention to the conditions in Canada and Brazil that permit these abuses and allow for their impunity.

According to the petitioners, Canada represents a particularly important offender, as it is the home country for 75% of the world’s mining companies, and two-thirds of their operations are in Latin America. The Canadian government provides financial support to many of these companies without implementing any human rights safeguards. Canada additionally works to influence host state laws, signs bilateral investment treaties, and exercises diplomatic pressure, all to make conditions more favorable for Canadian mining companies and to insulate them from any liability for environmental and human rights abuses.

Despite being informed of the negative consequences of these actions, Canada has failed to enact any effective mechanism directed at prevention, control, or remediation of extraterritorial human rights abuse. Petitioners could find no case where Canadian courts provided a remedy to victims of mining abuses abroad, and strongly critiqued the government’s minimal efforts to address the problem through its national corporate social responsibility program (which was also recently critiqued in an op-ed [2] by MiningWatch Canada’s Catherine Coumans).

Brazil carries its own set of problems, most revolving around the government financing of Brazilian companies through the Brazilian Development Bank. The petitioners argued that this bank gives Brazilian companies a competitive advantage in their operations abroad, while providing no effective mechanisms to supervise or control the operations, or remedy the resulting human rights abuses. And like Canada, Brazil also lacks a system of access to justice for victims of abuses taking place abroad.

The Commission appeared to be very sympathetic to the idea of developing jurisprudence on the legal responsibility of home countries for the actions of their corporations abroad, but were still unsure of the legal justification for doing so. Principal among the concerns of the Commission appeared to be the issue of how a state could be held liable for the foreign actions of non-state actors. Would a state be liable for the actions of its tourists? Where, and how, should the Commission draw the line?

In an exciting back-and-forth, the petitioners and the commissioners discussed a number of possible legal hooks to establish liability. In real time, you could see the outlines of an important jurisprudence emerging as the petitioners and the Commissioners discussed creative interpretations of the Charter for the Organization of American States, the American Convention on Human Rights, and the system’s existing jurisprudence, intended to demonstrate the legal obligations of home countries.

Now the decision, and the important task of defining the contours of home country liability, is in the hands of the Commission. While the Commission has recently been reluctant to shake things up too strongly, particularly when the interests of Brazil are involved, this hearing presents the Commission with an opportunity to make an important and needed contribution to the protection of human rights. It is hard not to get excited.