“The Corporate Responsibility to Respect Consultation Rights in the Americas: How the Inter-American System Can Better Promote Free, Prior, and Informed Consent”

Posted by Oswaldo Ruiz-Chiriboga. 

In the book Human Rights in the Extractive Industries (I. Feichtner, M. Krajewski & R. Roesch, eds., Springer, 2019, pp. 247-279), C. Ignacio de Casas published a chapter entitled “The Corporate Responsibility to Respect Consultation Rights in the Americas: How the Inter-American System Can Better Promote Free, Prior, and Informed Consent”. This is the chapter’s abstract: 

“This chapter addresses two pressing issues in the Inter-American Human Rights System (IAHRS): the responsibilities of corporations to respect human rights, and the right of indigenous peoples to give or withhold free, prior, and informed consent for the use of their lands and resources (FPIC). 

It begins by explaining the development of FPIC in the IAHRS, and concludes that this regional system restricts itself to the state obligation to protect FPIC, rather than being also open to corporate responsibility. 

After examining the role of corporations in the IAHRS jurisprudence, in order to determine whether they must comply with any human rights standards regarding indigenous peoples, this chapter finds that there exist in fact some implicit corporate responsibilities. These arise from the state due diligence standard, and are identified here as “indirect” corporate responsibilities. 

Next, the chapter explores whether Inter-American law could give rise to any “direct” responsibilities of corporations regarding FPIC. For that purpose, it addresses in particular the issue of the delegation of the duty to consult by the state to private corporations. The argument is that if this kind of delegation is permitted in the IAHRS, it could give rise to a direct responsibility of corporations. 

The chapter proposes a way in which direct corporate responsibilities can be framed using the existing Inter-American human rights framework, and some suggestions are made on how the organs of the IAHRS can promote these responsibilities. 

Finally, it argues that with these direct and explicit corporate responsibilities the focus shifts from an exclusive duty-bearer (the state) to shared duty-bearers (the state and corporations), resulting in better protection for rights-holders.”