Expanding and Contracting the UN Guiding Principles: an Analysis of Recent Inter-American Human Rights Court Decisions

Abstract

In 2021, the Inter-American Court of Human Rights (IACtHR) decided two cases for advancing the increasing jurisprudence on the implementation of human rights and business standards, yet there is still a gap to fill. Despite the important development with regards to the State obligation to supervise business operations, the decisions do not introduce further definitions of companies’ responsibilities on human rights nor the potential of creating mandatory remedies standards for private agents. Through the analysis of the 2021 case law, this article concludes that the IACtHR has been increasingly using the UN Guiding Principles to argue for its rulings but has missed the opportunity to generate greater accountability for companies and private actors in its decision-making.

1. Introduction

In 2021, the Inter-American Court of Human Rights (IACtHR or the Court) decided two important cases for advancing human rights and business standards. In August 2021, the Court approved—through judicial decision—a friendly settlement agreement reached by Honduras with the Miskito divers, who are part of a binational indigenous people who share the border territory between Honduras and Guatemala and who have historically sustained their livelihood by diving for lobster and shrimp (see CJML_BIB_J_0026,) v. Honduras 2021; (Buzos Miskitos case)). In recent years, and due to the growing commercialization of these products, the private sector has exploited this activity, which has forced diving to greater depths, generating disappearances, deaths, and violations of the right to health. Two months later, in October 2021, the Court decided the case of Martina Vera Rojas, a girl who suffers from Leigh syndrome and who received intense home care, only possible in the Chilean health system by contracting complementary health insurance (see Vera Rojas et al. v. Chile 2021 (Vera Rojas case)). In 2010, the privately held company that managed this insurance (Isapre MásVida), unilaterally decided to withdraw home medical treatment, generating violations of the right to life and physical and mental integrity of Martina and her family.

Both cases, which occur in very different circumstances and due to very different facts, have one point in common: the responsibility for the human rights impact relies on a private actor. This constitutes an important shift in the ways in which human rights accountability is argued. It also broadens the scope of responsibility to encompass not only the State’s duty to protect human rights but also—potentially—the responsibility of private agents for their actions or omissions. Ten years after the approval of the Guiding Principles on Business and Human Rights (Guiding Principles), these two decisions of the IACtHR make a concrete expansion of their polycentric purpose, this means that it is implemented by various entities, such as national State institutions, intergovernmental organizations, individual companies and sectoral business associations, among others. In other words, they help to enforce voluntary principles through caselaw, in these cases through decisions made by regional human rights mechanisms (Fuentes Torrijo 2021; Rodríguez-Garavito 2017).

The Guiding Principles are a step forward in terms of human rights governance precisely because they establish a polycentric human rights mechanism and attribute responsibility to companies regardless of the legal context in which they operate. Companies are responsible for developing human rights policies, engaging in due diligence processes, and for undertaking reparation measures regardless of the legal environment in which they operate. As highlighted in the commentary of principle 11 of the Guiding Principles, ‘the responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations’. Such responsibility can be overseen by international and regional mechanisms, governments, civil society, and victims. This means that all these actors can control companies—usually transnationals—that take advantage of weak legal and regulatory frameworks (Rodríguez-Garavito 2017).

In the global context, at least three ways are known for human rights and business standards to have binding force (Karska and Karski 2021). First, the possibility of creating a binding treaty on human rights and business is being discussed at the United Nations (Bilchitz 2016). A second option refers to binding legislation or regulation at the regional or local level. During the last few years, we have observed an increasing trend towards mandatory business and human rights legislation not just in the European context, but also an openness of Latin American countries to legislate at the national level (Lorenzen 2022; McGaughey et al. 2021). These two ways of generating binding standards are ‘top-down’, that is, they come from the State for their implementation at the international, regional or local level. A third option is the capacity of victims to use the Guiding Principles in strategic litigation processes, either at the national or regional level (Aristova 2021).

The cases analysed in this article deal with advances that come ‘from below’. It is not about advances that arise from the will of the States, but on the contrary, they are reactions to the legal struggles that indigenous communities and the family of a girl with disability have had to wage so that a regional court of human rights requires the States to better fulfil their supervisory role against the potential violations of private agents. A considerable advance is the recognition made by the Court in the use of the Guiding Principles to argue its decisions; however, as will be further developed in this article, both judgments say little about the implementation of standards and regulations. As will be discussed in greater depth, the Court has greatly advanced the implementation of the Guiding Pirnciples at the regional level, yet there is room for further development: the exclusive focus of the Court on the role of the State has prevented it from advancing in standards that demonstrate the responsibility of private agents in the area of human rights.

To develop this argument, the second part of this article unveils the evolution of the Inter-American Court in the use of the Guiding Principles. It does so, first, by making references to cases prior to those analysed in this work and observing how the ICtHR has progressively been incorporating standards on human rights and business in its decisions. The second part also deals with the use of human rights and business standards in the cases decided in 2021. It analyses how the Court uses the Guiding Principles as a fundamental basis for standardizing the friendly settlement agreement in the Miskito divers case, and how it uses similar arguments, although delving into issues related to the responsibility of the State in the control and its specific application to the case of children and adolescents in a situation of disability, in the Vera Rojas case. Finally, using Archimedes’ Lever theoretical framework (Payne et al. 2020), the third part makes an analysis of the agents and the context that have allowed the Court to advance on the implementation of the Guiding Principles and the potential limitations and veto that the Court has had to face. In accordance with the principle of the Archimedes’ lever, individuals who drive institutional change play a pivotal role in legal proceedings, aiming for the success of a case. These influential agents include members of civil society, lawyers, and even judges, all of whom have the potential to advance human rights standards. Conversely, economic entities exert pressure to amplify the burden of accountability and impede the endeavours of civil society and institutional innovators. However, there exists a crucial third component: the fulcrum, which symbolizes the global and political environment in this model. As the fulcrum moves closer to the weight, represented by the veto players, less force is required to promote accountability. The concluding remarks highlight that the Court could take an important step to better include the Guiding Principles in its decisions since it will have some opportunities to expand its jurisprudence on the matter in the near future.

2. Inter-American Court of Human Rights and the use of the Guiding Principles

The Inter-American Court has historically recognized the potential responsibility of non-State actors in human rights violations. Since the first decision of the Court, it is possible to observe how it has been adopting standards related to the obligation of the State to prevent third actors’ human rights violations, expressly stating that State parties must ensure ‘the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction’ (see Velásquez Rodríguez v. Honduras 1988: para. 166).

However, the first time that the Inter-American Court used the Guiding Principles was in 2015 in the case of Kaliña and Lokono v. Suriname. The decision recognizes that businesses must respect and protect human rights, as well as prevent, reduce, and assume responsibility for negative human rights consequences directly related to their operations. It does not go into detail about what such responsibilities are; rather, it considers the State’s responsibility to protect against human rights violations committed within their territory and/or authority by third parties, including businesses. This could be done by establishing effective policies, legislation, regulations, and adjudication to prevent, investigate, punish, and redress such abuse (Kaliña and Lokono v. Suriname 2015: paras 224–25).

A second ruling occurred in 2020 in the so-called case of the Employees of the Fire Factory of Santo Antônio de Jesus and their Relatives v. Brazil (Employees of the Fireworks Factory of Santo Antônio de Jesus and their Families v. Brazil 2020). This is perhaps the most important decision on the matter made by the Inter-American Court so far, because although it recognizes that it is not the first time that the Guiding Principles have been used, it expressly states that they must be interpreted in harmony with articles 1.1 and 2 of the American Convention on Human Rights (articles that regulate the obligations of the States including the need to incorporate human rights standards within their jurisdictions), as well as other international instruments such as the Conventions of the International Labour Organization (Employees of the Fire Factory of Santo Antônio de Jesus and their Relatives v. Brazil: para. 10) (Employees of the Fireworks Factory of Santo Antônio de Jesus and their Families v. Brazil 2020). This decision also contemplates the obligations of the State in terms of ‘i) the duty to prevent human rights violations in the framework of business activities, ii) the duty to regulate and adopt provisions of domestic law, iii) the duty to supervise such activities and iv) the duty to investigate, punish and ensure access to comprehensive reparations for victims in said contexts’ (ibid: para. 15). The decision opens, as we will see, opportunities to continue expanding the incorporation of the Guiding Principles in the jurisprudence of the Inter-American Court.

In consideration of the Court’s jurisprudence, it is possible to conclude that, rather than considering the guiding principles as isolated concepts, the Court understands them as a dynamic and evolving conceptual basis, permeating aspects of business and human rights discourse and action in coexistence with other binding legal standards. Hence, it has used them as a source for the analysis of the aforementioned cases. Based on these two precedents, the Court expands the usage of the Guiding Principles by integrating human rights and business standards in the Buzos Miskito and Vera Rojas cases.

2.1. The Buzos Miskito case

The Miskitos are a bi-national indigenous people who share the border territories of Honduras and Nicaragua. As of 2003, there was a population of approximately 40,000 Miskitos, the majority of whom live in the rural area of the department of Gracias a Dios. The Miskitos have historically lived from agricultural work, artisanal fishing, and the salaried work of young people as divers for lobster and shrimp fishing.

Miskito divers who have suffered an injury related to their work at sea are unable to get timely and effective medical treatment. The isolation of the community means that health centres are few and far between. The State’s omission and indifference to the problem of labour exploitation by fishing companies and the development of the activity in dangerous conditions led the Honduran Miskito Association of Crippled Divers and the Miskito Women’s Association and the Council of Elders to present the case before the Inter-American Commission on Human Rights in November 2004. Only in 2021, the Court approved—through judicial decision—a friendly settlement agreement reached by the State of Honduras and the Miskito divers.

In the Miskitos divers case, the IACtHR elaborated its argument on human rights and business in paragraphs 41 to 53 of the judgment. As we will see, in this argument, the Court adopts a classic State-centric view of human rights obligations and derives the responsibility of the company from the State’s obligation to guarantee human rights. This insofar as the obligation to guarantee extends beyond the relationship between State agents and the persons subject to their jurisdiction and encompasses the duty to prevent in the private sphere third parties from violating protected legal rights, is an argument similar to that developed in the 2005 case known as the Mapiripán Massacre v. Colombia case (see para. 117). This obligation to guarantee is reflected in the well-known doctrine of conventionality control applied by the Inter-American Court (Dulitzky 2015). This doctrine promotes the idea that all State authorities must interpret domestic law following the State’s international human rights obligations.

In this sense, the Court decided to adopt a rather classical position in the discussion on human rights and business. This is stated in paragraph 44 when it establishes that within the framework of its competencies, it is not for the Court to determine individual responsibility, but rather to establish whether States are responsible for the violation of the human rights recognized in the Convention. This implies an obligation to monitor private entities, but also to generate legislative, administrative, and educational efforts to prevent human rights violations by private parties (see Radilla Pacheco v. Mexico: para. 109).

Under the obligation to guarantee, the Court considers that States must adopt legislative and other measures to prevent human rights violations (in accordance with Pillar I of the Guiding Principles), and investigate, punish and redress such violations when they occur (in accordance with Pillar III of the Guiding Principles). However, in its State-centric position, it attributes the responsibility of companies to the State’s obligation to guarantee, that is, it considers that the State must generate internal measures that ensure the responsibility of companies to have human rights policies, to generate due diligence processes and to make remedies when they have committed human rights violations. The Guiding Principles introduce a hierarchical framework for attributing responsibility across three distinct levels: ‘causation’, ‘contribution’, and ‘direct linkage’. This delineation holds significant implications for both the exercise of due diligence and the provision of remedies, as corporate entities bear the obligation to furnish remedies solely within the first two tiers.

Despite this State-centric vision, the Court attempts to attribute a certain degree of responsibility to the operation of companies. This is expressly specified in paragraph 51 when it states that companies are the first to be accountable for behaving responsibly in the activities they carry out, as their active participation is fundamental for the respect and enforcement of human rights. Yet, it does not elaborate on particular standards in this area and returns to the idea that State responsibility must be framed within the obligations of States to guarantee human rights. The most explicit reference is given in paragraph 138, where it expands the clause of the agreement relating to the supervision of the function of fishing by diving, adding that this State obligation is aimed at: ‘achieving the verification of a) the application of the regulations on underwater fishing, b) compliance with the labour obligations of employers, and c) the processes of fishing and industrialization of the products extracted’ and that: ‘the state should adapt its fishing regulations to establish the obligation of fishing companies to adopt human rights policies, due diligence processes, and processes to redress human rights violations’. However, given that the order to adopt new fishing regulations is not part of the instructions contained in the operative part of the judgment, it is doubtful that the State will enforce this requirement with the companies. This issue is discussed to a certain extent in the concurring opinion of Judge Patricio Pazmiño Freire, who considers whether the Westphalian conception of States as actors, if not the only principal ones, is sufficient to face these challenges, something that will be further analysed in the third section of this article.

2.2 The Vera Rojas case

In the case of Martina Vera Rojas, a girl from northern Chile (Arica) who suffers from Leigh syndrome—a progressive neurological disease—and who in 2011 filed a lawsuit against Isapre Más Vida, the IACtHR ruled that the State must ensure the continuation of the child’s medical treatment, as well as any treatment she may need in the future. This is the first time that a State has been held internationally accountable for failure to oversee a health insurer, which opens up ample scope for litigation in similar cases.

The lawsuit brought before the court by the Inter-American Commission on Human Rights (IACHR) accused Isapre Más Vida of unilaterally and arbitrarily withdrawing, in 2010, the home hospitalization regime that the child required for the treatment of her illness, as well as for the special care she required due to her condition as a disabled child. The Court noted that the insurer’s decision was taken based on a regulatory provision contrary to human rights, particularly concerning the obligation to regulate health services provided by private companies. Furthermore, the Court noted that, although the home hospitalization regime was subsequently restored to Martina by an arbitration decision, the risk of affecting the child’s rights continues to this day. Therefore, the State was declared responsible for the breach of its obligation to prevent the violation of human rights, and its obligations of progressive development to health and social security.

In this case, the IACtHR took a similar position to the Buzos Miskito case. Paragraphs 81 to 88 are an exact reproduction of the arguments developed in the Buzos Miskitos case. The novelty in the Vera Rojas case, in terms of human rights and business, appears from paragraph 89 onwards, where the Court elaborates standards for companies that fulfil a public function, more precisely the provision of health services. The Court states that ‘the State has an obligation to prevent third parties from unduly interfering in the exercise of the rights to life and personal integrity, which are particularly vulnerable when someone is receiving health care’ (para. 89).In this case, the State has a special responsibility in the area of regulation. The argument is as follows: given that health is a public good, the protection of which is the responsibility of the State, it is then its obligation to prevent third parties from unduly interfering with the enjoyment of the rights to life and personal integrity, which are particularly vulnerable when a person is undergoing health treatment. This becomes crucial in a context where, as stated by the Court, the Chilean State ‘has delegated the function of ensuring the right to health to private institutions, including the Isapres’ (para. 92).

Health as a public good has been addressed in various judgments of the Inter-American Court (Inter-American Court 2022). This obligation implies the exercise of respect, protection, and fulfilment by the State of this right. In other words, the State must refrain from actions that may harm health; it must take measures to ensure that third parties do not interfere with the right to health; and, finally, it must take legislative, administrative, and judicial measures to ensure compliance with this right (Committee on Economic, Social and Cultural Rights. 2017: para. 33). According to these obligations, States have a duty to ensure the provision of those services and to regulate and supervise the activities of private health companies, including the services of insurers, as their actions fall within the realm of public service, which means, according to the Court that ‘they are acting on behalf of the State’ (para. 124). As can be seen in this case, the Chilean State has delegated the function of guaranteeing the right to health to private institutions, including the Isapres.

It is precisely from this delegation of functions to guarantee a public good that the obligation to regulate and supervise the operation of private entities derives. This State obligation falls under the special duty to protect life and personal integrity, regardless of whether the entity providing such services is public or private. In the particular context of Chile, the Court notes that ‘in the Chilean social security system, since financing is a central element in the access to health services offered by private institutions, the State is obliged to regulate and supervise their actions, since their activities may imply serious risks to the access to health of individuals, and even compromise the international responsibility of the State for the breach of the duty to respect rights’ (Vera Rojas case: para. 89).

The latter is especially relevant when a privately owned company provides a service of a public nature and is exercising functions inherent to the public power, as is the case of the Isapres in the Chilean health system. In this regard, the Court recalls that health services related to paediatric rehabilitation and care must be provided in accordance with the principles of availability, accessibility, acceptability, and quality of health services, taking into account the particularities required for the medical treatment of children suffering from disabilities (Vera Rojas case: para. 146).

Despite this observation, as in the case of the Miskito divers, the Court missed the opportunity to call for the direct responsibility of private actors. It did not require private actors to generate human rights policies, to promote human rights due diligence or to undertake reparation measures, as stated by the Guiding Principles. Moreover, the Court did not engage in the obligation of the State for far-reaching legislative changes at the national level to ensure that this type of event does not happen again. Although the Court acknowledged that Isapre knew of Martina’s condition and still cancelled her policy, the Court did not order Chile to review its current regulation of private health companies or to adopt policies to ensure prompt access to effective legal remedies for Isapre users.

Despite the failure of the IACtHR to expand toward private actors’ responsibility in human rights, these two cases are new examples of an already consolidated jurisprudence of the Court in terms of advancing the implementation of human rights and business standards. As already seen, the Court used important elements of the Guiding Principles in deciding the Buzos Miskitos and Vera Rojas cases. In particular, as it has done since Employees of the Fire Factory of Santo Antônio de Jesus and their Relatives v. Brazil (Employees of the Fireworks Factory of Santo Antônio de Jesus and their Families v. Brazil 2020), the Court recognizes that the Guiding Principles must be analysed in light of the American Convention on Human Rights. It recognizes that the first pillar of the Guiding Principles, namely the obligation of States to protect, includes the obligation to supervise the role of private entities and that a failure to do so entails the international responsibility of the State, and it adds a particular role for States to supervise private entities when they exercise public functions, such as in the case of health. From that obligation, in turn, obligations relating to the third pillar of the Guiding Principles derive, that is the obligation to establish remedies mechanisms. It mainly recognizes the obligation of States to establish such mechanisms, although it explores to some extent the role of National Human Rights Institutions (NHRIs) in the Vera Rojas case; it does not explore other State-based non-judicial mechanisms such as the role of the Organization for Economic Cooperation and Development (OECD) National Contact Points (NCP) or the role of other administrative bodies that may have the mandate to impose sanctions on private entities (such as labour or environmental departments), nor non-State reparation mechanisms, such as, for example, internal mechanisms of private actors. In other words, the Court uses the Guiding Principles to support its interpretation of the American Convention, effectively using them as complementary normative sources for its jurisprudential interpretation.

These rulings show that a good opportunity was missed to demand the implementation of the Guiding Principles at the local level. While the Court argued based on the Guiding Principles and more fundamentally on the State’s obligation to oversee the role of private actors, it did little to require direct implementation of this responsibility. While in both cases examined here the Court argued that the first responsibility to respect human rights relied on private agents recognizing their causation and contribution to human rights violations, it did not say anything in terms of remedies that should be adopted by companies. Nor did the Court expand on the need for companies to take preventative measures. According to the Guiding Principles ‘where a business enterprise contributes or may contribute to an adverse human rights impact, it should take the necessary steps to cease or prevent its contribution and use its leverage to mitigate any remaining impact to the greatest extent possible’ (Commentary to Principle 19 of the Guiding Principles). Finally, while recognizing the responsibility of companies in the arguments of the decision, the instructions contained in the operative part of the judgements does not say anything to this respect. Despite this gap, the Court could monitor compliance with this measure in the compliance monitoring hearings on this case (Herencia-Carrasco and Gillespie 2022).

The lack of analysis of the structural causes that contributed to the human rights violation is most evident in the judgment of the Vera Rojas case. The Court did try to attribute a certain grade of responsibility to private actors, establishing that ‘companies are the first line of responsibility for ensuring proper conduct in their activities, as their active participation is fundamental for respecting and ensuring human rights’ (Vera Rojas case: para. 88). Yet, in its resolutive part it says nothing about such obligation, thus losing the opportunity to ask the Chilean State to regulate public services such as health from a human rights and business perspective.

3. Expanding and contracting the Guiding Principles: an analysis based on Archimedes’ lever

The reasons for the Court not expanding further business and human rights standards are probably multiple; applying the Archimedean lever theory one might observe that this can result both from the agency of the actors involved in a decision and from the context (Payne et al. 2020). According to the theory of Archimedes’ lever, in any judicial action ‘institutional innovators’ are people willing for a case to succeed, more specifically civil society, and lawyers, but also judges may be able to advance human rights standards. On the other side of the lever, economic actors are applying pressure to increase the weight of accountability and stymie the efforts of civil society and institutional innovators. But there is a third element that is crucial: the fulcrum, which in the model represents the global and political context. The closer the fulcrum moves to the weight (that is the veto players), the less force needs to be applied to move accountability.

From the perspective of this theory, one could say that these cases have allowed, little by little, progress to be made in raising the leverage, but a great effort is still required for the implementation of standards on human rights and business, particularly those relating to the responsibility of private actors, to become a reality in the Inter-American system. To this end, we will explore two types of innovators: Court judges and litigants, and then analyse the socio-political context of the region (in Archimedes’ theory: the fulcrum) that often slows down the progress of these innovators.

3.1 Innovators: competing views in the Court and the role of lawyers

One of the ways to understand the Court’s historical position on human rights and business is the vision of the concept of human rights held by each of the judges who sit on the Court. The importance of looking at the particular opinions of judges lies in the fact that, as Kahn has put it, judicial judgments are rhetorical performances that take on the task of persuasion in a democratic community (Kahn 2016: 178). In these two cases, as in other decisions made by the Court, we can find more evidence of judges as actors in their separate opinions. For the specific case of business and human rights, it is crucial to observe the concurring or dissenting opinions (separate opinions) of Judge Eduardo Ferrer MacGregor Poisot in the Employees of the Fire Factory of Santo Antônio de Jesus and their Relatives v. Brazil case (Employees of the Fireworks Factory of Santo Antônio de Jesus and their Families v. Brazil 2020), where he assumed a more classical point of view to human rights obligations of private actors and the separate opinion of Judge Pazminño in the Buzos Miskitos case where he promoted the development towards a less State-centric view of human rights.

In favour of a classical view of human rights that promotes the idea of violations perpetrated solely by the action or omission of the State, we could place Judge Ferrer MacGregor, who asked in his dissenting opinion in Employees of the Fire Factory of Santo Antônio de Jesus and their Relatives v. Brazil (Employees of the Fireworks Factory of Santo Antônio de Jesus and their Families v. Brazil 2020): ‘Can the state be internationally responsible for the violation of human rights as a result of acts of commission by a private company?’, and to answer that question he argued based on the Guiding Principles. He first noted that the Guiding Principles are based on the idea that States—and only States—should ensure three basic principles (or obligations) in the context of business activities within their jurisdiction: protect, respect, and remedy (para. 11). While this may be correct, it is not necessarily accurate, as the three principles are based on the State’s obligation to protect, the corporate responsibility to respect and the public and private means of remediation. Perhaps based on the State-centric idea, Judge Ferrer MacGregor decided to focus only on the obligation to protect.

By elaborating his argument solely on pillar one of the Guiding Principles, that is the obligation of States to protect human rights, Judge Ferrer MacGregor deliberately left out the responsibility of companies to respect, including the responsibility to have human rights policies and due diligence, but more importantly, he did not elaborate on the fact that the Guiding Principles themselves recognize different forms of remedy, which can be elaborated through State-based judicial mechanisms, State-based non-judicial grievance mechanisms, and non-State-based grievance mechanisms.

An opposite point of view was presented by Judge Pazmiño in his concurring opinion in the Buzos Miskitos case. The main argument that can be derived from Judge Pazmiño’s separate vote is to change the focus of human rights violations, leaving the active subject (the State) as a lesser point of concern, to highlight the victim. In this way, he expressly stated that ‘all forms of exploitation are identical because they are all applied to the same object: the person ... what is relevant in exploitation, as in other human rights violations, is the victim. The legal construction behind it to protect their rights is, if not incidental, at least relevant to the real effects of reparation’ (para. 4).

Another point of particular relevance in his concurring vote is the ‘reflection’ he made on the need to put an end to a classical view of human rights violations. He argued that long before the Second World War, indigenous communities in Latin America promoted the internationalization of social and economic rights, precisely to avoid colonizing abuses. This form of colonization would be seen today in transnational corporations, many of which have more power than States. He concluded his reflection by pointing out that we must ‘ask ourselves 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 companies, but properly and complementarily the companies as actors of international law’ (para. 5).

Taking into consideration these competing views within the Court, we can find some innovators, particularly litigators, who, in the cases analysed, had to overcome several difficulties to advance human rights and business standards. In the case of the Miskito divers, the litigation was carried out by the Centre for Justice and International Law (CEJIL), which has been a key actor in the mobilization of the Inter-American Human Rights system and which had to innovate to overcome several difficulties in the litigation. These difficulties included—as pointed out by the litigators themselves—the remoteness of the territory where the victims live, the language, and the legal defence, especially concerning the collection of evidence. Another point of difficulty is that, by 2004, it was estimated that around 9,000 divers were affected by lobster fishing without adequate safety conditions. However, due to limited resources CEJIL could only litigate on behalf of 42 people belonging to the Miskito community and their families. While not necessarily representative of the realities of all families, these 42 cases represented the structural situation experienced by the Miskito divers, so that concrete measures could be taken to address the situation.

In the case of Vera Rojas, the family’s lawyers who represented her before the Inter-American system, Karinna Fernández and Magdalena Garcés, also had to overcome a series of difficulties. According to the litigators, the first was the lack of an existing organization in Chile that litigates cases before the Inter-American system. However, the two lawyers also had to overcome obstacles such as the fact that Arica is located 1665 kilometres from Santiago, the difficulties and constant pressure that came from the Chilean health system, and the potential for Martina’s health to deteriorate. Added to this is the fact that the government, unlike in the Miskitos case, did not want to reach an amicable solution and the closing of doors at the administrative and judicial levels at the national level. In the case of Vera Rojas, the generation of obligatory standards for the private sector was sought, which generated—as we have already seen—another limitation from the perspective of the Inter-American Court.

Apart from the direct litigators, the role of the InterAmerican Commission on Human Rights (IACHR) must also be highlighted, not only because they brought these cases to the Court, but also because they have been constantly pushing for the implementation of human rights and business standards in the regional context. This effort of the Commission has allowed not only the admissibility of cases and their argumentation from the Guiding Principles, but also the generation of precautionary measures and protection measures, specific mechanisms of the IACHR, through which it requests a State to protect one or more persons who are in a serious and urgent situation from suffering irreparable harm. In addition, the Commission has produced reports on the implementation of standards on human rights and business in the regional context (CIDH 2019).

From this perspective, it seems fundamental, to understand the Court’s decisions, to analyse the context in which they are taken, and to observe, following Archimedes’ theory, the position of the fulcrum.

3.2 Fulcrum: the complex political context of the Inter-American Human Rights system

The fulcrum in the Archimedes’ lever theoretical framework represents the global and political context. The closer the fulcrum moves to the weight (that is the veto players), the less force needs to be applied to move accountability. The closer it moves to those applying the force to lift the weight (that is civil society demand and institutional innovators), the more the force they have to use increases. On this point, it is key to come back to the Court. As we have seen, apart from the view of some judges on the potential implementation/limitation of the Guiding Principles (identified previously), the Court has taken a classical position in terms of human rights and business which can be explained through pressure from different actors which has led the Court to potential legitimacy problems in recent years, as will be further explained (Engstrom 2019).

One problem that could be raised in a more in-depth proposal for the Court is precisely one of implementation of its decisions (Hillebrecht 2009; Huneeus 2011). The argument would be as follows: if it is already difficult for States to comply with the Court’s decisions, it would be even more difficult for States to develop tools that include private agents. Following Huneeus (2011), the degree of implementation of Court decisions involving a new actor (private actors) would have the potential to have a low level of implementation. In her work, Huneeus disaggregated the Court’s remedies orders depending on the institution or official to whom they were addressed. From this point of view, the compliance rates of the Court’s decisions reveal a very marked trend: the greater the separation of the branches or State institutions involved in the reparation measure, the lower the likelihood of State implementation. Thus, we could assume that including measures that aim at regulating or supervising private agents carries the risk of low implementation.

There are several theories about compliance with Court decisions, but one thing is becoming clear, many of them depend on the actors involved in different processes. In a symposium involving Alexandra Huneeus, Jorge Contesse, René Urueña, Paulina García, Ximena Soley, and Par Engstrom, several hypotheses were put forward. These have to do with ‘taking seriously’ the idea that human rights instruments are open to new interpretations, on the one hand, and on the other, the fact that the interactions of the Inter-American system are intertwined by the position of different actors, Who are trying to reform the Inter-American system for their own benefit (Contesse and Huneeus 2019).

Government criticism ranges from disapproval of institutional mandate overreach (for example by ordering expansive remedies), to censure of the system itself. Some governments have treated the system as neo-imperialist, while others have simply stopped providing funds, because of an alleged lack of democratic legitimacy and limited deference to elected officials (Contesse 2019). This last criticism, which plays out mainly in conservative governments, must, according to Contesse (2019), be treated seriously. For their part, civil society organizations and litigants criticize the system—mainly—for the lack of implementation of the Court’s decisions and the lack of transparency of processes. These are voices that should also be taken ‘seriously’ since civil society organizations are one of the main actors that have shaped the Inter-American system (Soley 2019).

The political context and criticisms made by different actors have constantly moved the fulcrum in different directions making it easier or harder—depending on the moment—to lift the lever. To observe the position of the fulcrum and assess the difficulty of lifting the lever, it is necessary to analyse these criticisms, raised by various actors, under political structures that are currently generating serious difficulties against this. From 2019 onwards, a resurgence of excessive repression of social protest has been observed in the Latin American context, along with right-wing populism that criticizes the actions of civil society and with it a resurgence of nationalism and intolerance, including the defiance of international organizations. Post-COVID-19, inequalities have continued to widen, and the discourses of hate speeches continue in the same vein. However, we have seen that the Court has become more flexible and generated innovative tools to comply with its decisions (Saavedra Alessandri 2020), for example, through National Human Rights Institutions (Solano Carboni 2020), or by generating local compliance mechanisms (Murray and De Vos 2020), and it is perfectly possible to do the same in cases where the responsible parties are private actors.

An interesting proposal for advancing human rights and business standards is that the Court should make better use of NHRIs for enforcement. NHRIs have a fundamental role to play in human rights and business, ranging from following up on recommendations to the eventual imposition of administrative or judicial sanctions (Pegram and Herrera 2018; Wolfsteller 2021). With Chile, in the case of Martina Vera, this strategy was adopted in part by giving the NHRI specializing in children and adolescents (the Ombudsman for Children) specific obligations in this area, particularly by recognizing that

The State shall adopt legislative or other measures for the Children’s Protection Office to participate in proceedings before the Superintendency of Health or in legal proceedings, in which the rights of children could be affected by the actions of private insurers (Vera Rojas case, para. 193).

4. Conclusions

In Buzos Miskito and Vera Rojas, as it has done since 2015, the IACtHR advanced the integration of the Guiding Principles with the standards of the American Convention on Human Rights and other international human rights standards, particularly International Labour Organization (ILO) Conventions. However, both cases demonstrate that while the Court is willing to use the Guiding Principles in its analysis of the case, it does not yet apply the business and human rights standards consistently, particularly when applied to companies’ responsibility to respect human rights.

The missed opportunity of the Court in the Buzos Miskitos and Vera Rojas cases may be overturned, not without difficulties. In October and November 2022, the Court heard the following cases: Tagaeri and Taromenane Indigenous Peoples in Voluntary Isolation v. Ecuador and La Oroya v. Peru. The current international panorama of expanding mandatory legislation on business and human rights and the potential willingness of the members of the Court could make the lever easier to raise. This will not be easy. As highlighted, including potential actions in terms of regulating or supervising private agents may generate further implementation challenges. In addition to the criticisms of some States, which have called it neo-imperialist and civil society organizations that require greater transparency and implementation, the Court could potentially incorporate a third veto actor: the private sector. What the Inter-American system cannot lose sight of is that its legitimacy depends in large part on its unrestricted defence of those who are victims of human rights violations, without losing the governance that has characterized its actions.

Acknowledgements

The author would like to thank Leigh Payne, Par Engstrom and Francesca Lessa, for their comments; all mistakes and errors are his own responsibility.

Conflict of interest

None.

Funding

This work was supported by Fondecyt Iniciación, ANID Chile Number 11220195.