I. The Role of the UN Guiding Principles on Business and Human Rights Regarding Access to Justice
The third pillar of the UN Guiding Principles on Business and Human Rights (UNGPs) is often considered the ‘forgotten pillar’,Footnote 1 especially when compared with the first pillar, where some of the ‘governance gaps’ the State must address in order to comply with its duty to protect under international human rights law are developed with some level of detail. The same happens in relation to the second pillar, which proposes a practical approach for the proactive involvement of companies in the identification and management of the risks their activities and business relationships may produce on human rights.Footnote 2 However, the third pillar is not necessarily ‘forgotten’, as it is based on one of the core rights of the international human rights regime. In this regard, not only are the various elements and procedures for access to justice developed within each country’s domestic law and within the international legal system, but they have also been subject to detailed studies by the international and regional human rights community.Footnote 3 However, it is the least proactive pillar of the UN framework on business and human rights, and the one that faces the greatest challenges in terms of making a specific, substantive contribution in light of the vast existence of civil, criminal, administrative and constitutional proceedings in domestic jurisdictions.
The third pillar calls for a comprehensive remedy systemFootnote 4 involving judicial, non-judicial and non-State-based mechanisms that enables individuals or groups affected by business activities to have access to different options to obtain access to justice and reparation for the damages suffered. In that regard, the commentary to Principle 25 proposes a range of mechanisms that should be available for victims, as well as the need for the State’s support to those who use them. However, it is Principle 26 which establishes the Guiding Principles’ specific contribution on access to judicial justice by stating that legal, practical and other obstacles that inhibit or limit the access to redress mechanisms must be removed. This Principle’s commentary identifies as legal obstacles the recognition of a separate legal personality for companies within a corporate group, despite forming an economic unit; the difficulty of accessing the courts of the parent company’s home State; or discrimination in the access to judicial mechanisms for certain vulnerable groups.Footnote 5 This has been complemented by the important work of the Office of the High Commissioner for Human Rights (OHCHR) on the subject,Footnote 6 which recognizes the importance of the effectiveness of civil and criminal mechanisms for the purpose of corporate liability.
It is evident that through their ecosystemic approach regarding access to justice, and by emphasizing the need to address potential structural or legal barriers, the UNGPs have developed a renewed perspective on linking judicial mechanisms – especially civil liability – to human rights issues. Although the discussion at the international level has mostly focused on transnational litigation and the complexities of the exercise of jurisdiction by home State courts, other elements of equal significance (albeit of lesser visibility) have been addressed by different national courts in Latin America, thereby contributing to a broader understanding of access to justice in cases of business-related human rights abuses.
II. Contributions of Latin American Judiciaries to the Question of Corporate Accountability
The issue of access to justice in business and human rights cases is not foreign to the Latin American region,Footnote 7 and has made relevant contributions on complex legal issues. In particular, the judicial practice has been proactive in identifying the existence of legal foundations for the enforceability of human rights due diligence in domestic legal frameworks; in promoting the reversal of the burden of proof as a measure to guarantee procedural fairness between parties; and even in proposing a new understanding on the statute of limitations in civil litigation for the purpose of guaranteeing access to justice.
The General Duty of Prevention as a Basis for Human Rights Due Diligence
As the UNGPs state, human rights due diligence does not have a legal lineage; on the contrary, it is expressly considered as a ‘global standard of conduct’ deriving from ‘social expectations’, an aspect that legal doctrine has criticized.Footnote 8 However, its dimension is not simply reduced to a good practice or a social objective because, from a teleological approach, its purpose is the prevention of adverse impacts on human rights, consequently implying an obligation to prevent.Footnote 9 This obligation, which is expressly reflected in the civil codes of countries with a Romano-Germanic legal tradition, implies the existence of a duty to prevent causing damage to third parties, under penalty of reparation. Within the regional context, it is one of the key concepts that has been addressed by different Latin American jurisdictions.
The Colombian Supreme Court made an interesting analysis of extracontractual civil liability arising from the sabotage of oil pipelines belonging to the company OCENSA,Footnote 10 where an attack by a subversive group (ELN) led to an explosion that had a severe impact on the rights to life and personal integrity of members of a neighbouring community. Even though the company had adopted various preventive measures, including some which arguably went beyond international good practices, the Civil Cassation Chamber of the Supreme Court considered that an adequate analysis should have shown the existence of a severe risk factor arising from the so-called ‘public order variable’, that is, the existence of criminal acts in the area where the pipeline was installed, which should have been considered by the company since the planning stage.Footnote 11
The Court held that even if the company’s particular diligence during the operation of the crude oil transportation activity protected it from accusations of negligence or carelessness, and even if the criminal activity by ELN was sudden, unexpected and difficult to prevent, it should have foreseen the consequences of such a scenario when designing the pipeline’s route, particularly for the neighbouring population of Machuca. Furthermore, it considered that although the chosen option for the pipeline tracing was the result of detailed studies, it could not exempt the company from liability as it should have foreseen the difficulty in preventing or stopping the damaging effects of an oil spill for the affected population, independently of its causes.Footnote 12
The Court’s ruling denotes judicial consideration about the value of risk assessments to measure the quality of a company’s conduct and diligence, and the necessary assessment of different and potential risk factors that may exist in a given context. Consequently, this judgement stands out for its evaluation of the scope of due diligence, and for the way in which the Supreme Court pointed out that the insufficiency of a risk analysis can be a solid basis for the determination of extracontractual civil liability for human rights violations.
The Reversal of the Burden of Proof
One of the main complexities in the context of business activities and their impact on human rights is proving negligence (or lack of due diligence) as a source of damage. Although the UNGPs do not expressly address this issue,Footnote 13 the Accountability and Remedy Project has identified the reversal of the burden of proofFootnote 14 as one of the key elements to promote a greater use of human rights due diligence by companies, as well as a tool to generate greater procedural fairness between the parties in a dispute.
Several Latin American States already contemplate in their civil procedure legislation the possible use of the reversal of the burden of proof (or the dynamic burden of proof) in certain cases,Footnote 15 and it is also one of the specific references in the Escazú Agreement.Footnote 16 In addition, some judgements have highlighted its relevance in the business and human rights context.
The First Chamber of the Mexican Supreme Court specifically addressed this issue in a recent ruling.Footnote 17 The case deals with a work-related death of a female employee within the facilities of a company (Ralston Purina Mexico), where the company’s initial reaction was to inform the victim’s relatives about an accident and, several hours later, of her death. However, the company gave contradictory explanations about the circumstances in which the death occurred and failed to notify emergency services and public authorities in a timely manner. The daughter of the victim brought an extracontractual civil liability suit against the company, seeking moral damages and demanding that the onus probandi was placed on the company. The company argued the non-existence of a wrongful act, and therefore, that the burden of proof should rest on the claimant.
The Supreme Court pointed out that as a general rule, it is the parties’ responsibility to prove their respective claims. However, in light of the existence of particular circumstances, it could consider an exception to the rule, in order to ensure procedural fairness and equality between the parties. In that regard, it stated that when a party has a greater ease or availability of the relevant evidence vis-à-vis a counterpart for whom it would be almost impossible or extremely complicated to provide evidence, it could find a basis to shift the burden of proof.Footnote 18
The First Chamber further elaborated on its reasoning by stating that its position was particularly relevant when the extracontractual liability for moral damages derived from a wrongful act consisting of a breach of the duty to protect human rights, which, according to its doctrine on the transversality of human rights,Footnote 19 is also applicable to individuals. For the Supreme Court, cases like these highlight the need to maintain the procedural balance between the parties, which would justify the reversal of the burden of proof to impose it on the party that has a greater evidential proximity.Footnote 20 The Court concluded its analysis, arguing that it would be easier for the company to demonstrate it acted with due diligence in relation to the events linked to the victim’s death, rather than asking the plaintiff to demonstrate that the company acted with negligence.Footnote 21
Statute of Limitations in Civil Liability Cases for Gross Human Rights Violations
Another issue of great relevance to civil human rights litigation is the question of the statute of limitations. In several cases of human rights litigation against businesses,Footnote 22 a restrictive statute of limitations has been an important obstacle for access to justice. Nevertheless, relevant contributions to other aspects of this legal concept have been made by judiciaries in Latin America. As it is well known, international law recognizes the non-applicability of statutes of limitations in criminal law to certain causes of action, such as crimes against humanity; however, there is insufficient understanding and practice regarding its application in civil law for the same type of conduct. Evidently, the objective of criminal and civil law is different (although potentially complementary), as the former seeks the prohibition of certain conducts through a deterrent effect, while the latter seeks the restitution or reparation of the rights of victims. It is undoubtedly an emerging dimension in the practice of international human rights law.
In this regard, the Fifth Chamber of the National Chamber of Labor Appeals of Argentina developed an interesting interpretation on the role of statutes of limitations in civil litigation regarding crimes against humanity from the perspective of the rights to reparation and access to an effective remedy. In I., M. G. c. Techint S.A.,Footnote 23 the plaintiff claimed compensation for the forced disappearance of her father, who was abducted from his workplace. Although the forced disappearance was caused by the State, it was noted that tolerating the presence of State agents within the company’s premises amounted to complicity.Footnote 24 In its analysis, the Chamber considered that the company should have ensured the safety of the victim, and that by failing to take preventive measures on the matter, the company could be held liable. While referring to the scope of the pro persona principle, to the State obligation to adopt legislative measures, and particularly to the UNGPs and the OECD Guidelines for Multinational Enterprises regarding a company’s responsibility to respect human rights, the Chamber decided to dismiss the statute of limitations that would be applicable due to the serious violation of human rights tantamount to a crime against humanity.
Even though the Argentinian Supreme Court eventually overruled the decision,Footnote 25 stating that compensation claims deriving from damages caused by crimes against humanity are subject to the corresponding statute of limitations regime and are not subject to the same treatment as in criminal law,Footnote 26 it is worth noting that the decision revolved around the applicable legal framework at the time of the event. However, the 2015 reform of the Civil and Commercial Code introduced the non-applicability of statutes of limitations in civil litigation regarding crimes against humanity. Regardless of the final ruling, these precedents provide an important foundation for a broader debate on access to justice and statutes of limitations in civil liability cases for crimes against humanity, especially in cases where economic actors have an active or passive role.
III. Conclusion
Although there are still significant challenges in guaranteeing effective access to judicial mechanisms, Latin American courts have in some instances shown a progressive and protective interpretation of human rights in the context of business activities. Particularly, the case law of different national courts reveals the existence of sufficient legal grounds (in civil, criminal or constitutional law) to determine corporate liability for human rights abuses, and in some cases, an effort to contribute to the progressive development of international human rights law by addressing complex legal issues within the domestic sphere. Some of these contributions – such as those outlined in this piece – contribute to the clarification of the interpretative and normative parameters of domestic law, and even to the promotion of a serious debate on business and human rights issues where there is legal uncertainty. In this sense, it is worth emphasizing the role of judicial decisions as sources of law and as State practice that contribute to the integration of a more robust legal framework for the protection of individual and collective rights in the framework of economic activities.
Conflicts of interest
The authors declare none.
