Centro de Derechos Humanos

Este artículo mostrará cómo las dos grandes empresas públicas chilenas que están activas en el rubro extractivo, CODELCO y ENAP, pueden generar responsabilidad internacional del Estado por hechos internacionalmente ilícitos, particularmente, en materia ambiental o de derechos humanos. Para ello, se derivan criterios sobre atribuibilidad de actos y omisiones de CODELCO y ENAP al Estado, a partir del derecho internacional general y la jurisprudencia de tribunales de derechos humanos; estos criterios se aplican a la normativa y práctica administrativa de nuestro país para finalmente concluir que actos y omisiones de las empresas estudiadas efectivamente, son atribuibles al Estado de Chile.

would like to express my sincere gratitude to my doctoral supervisor, Clara Sandoval Villalba, for all of her support. She inspired my writing about the reparation jurisprudence of the Inter-American Court and made most precious comments to earlier versions of this article. I also am very grateful to Dinah Shelton, and to Victor Madrigal Borloz and Viviana Krsticevic for instructive discussions in the fall of 2005. Finally, I thank Laura Sierra for her fine editorial work. The shortages and errors are certainly my sole responsibility.

Luego de pasar revista a la literatura especializada sobre la implementación de decisiones de tribunales internacionales de derechos humanos por parte de los Estados nacionales, así como el grado de cumplimiento que exhiben los países del Sistema Interamericano de Derechos Humanos respecto de sus fallos y otras decisiones, el artículo analiza la situación específi ca de Chile en este ámbito, abordando la forma en que los diversos órganos del Estado implementan las sentencias y decisiones

State-owned enterprises (SOE) carry out important activities in many countries, often generating considerable negative impact regarding the enjoyment of human rights. This paper addresses issues of attribution of responsibility in international customary law and international human rights law, considering that international remedies are one of the possible venues for access to justice in case national redress fails. The question is whether responsibility only arises when the State does not comply with its duty of SOEs’ human rights impact, or whether acts and/or omissions by SOEs may also be directly attributable to the State. Finally, the paper looks into a recent proposal that it is necessary to use piercing the veil theories in order to complement theories of state responsibility, and evaluates its usefulness for international human rights law. The article argues, innovating on this point, that SOEs are the only business entities, which have, as of now, direct responsibilities un...

This article addresses the lack of clarity regarding obligations of state-owned enterprises in the UN Guiding Principles on Business and Human Rights. Starting from the Inter-American Commission of Human Rights' latest report on the topic, it develops the scope of human rights obligations for state-owned enterprises in the Americas, framing them in a systemic approach that calls for using both governance and regulatory tools to achieve respect for human rights. The article furthermore argues that there are good reasons for limiting the application of due diligence to the relationships with a company's private business partners, excluding the relationship with its (public) owner where direct responsibility applies. Finally, the article spells out several specific issues that need to be addressed when assessing SOE human rights governance and shows that the enhanced human rights accountability of state-owned enterprises need not contradict a level playing field between public and private business.

This article addresses the lack of clarity regarding obligations of state-owned enterprises in the UN Guiding Principles on Business and Human Rights. Starting from the Inter-American Commission of Human Rights’ latest report on the topic, it develops the scope of human rights obligations for state-owned enterprises in the Americas, framing them in a systemic approach that calls for using both governance and regulatory tools to achieve respect for human rights. The article furthermore argues that there are good reasons for limiting the application of due diligence to the relationships with a company’s private business partners, excluding the relationship with its (public) owner where direct responsibility applies. Finally, the article spells out several specific issues that need to be addressed when assessing SOE human rights governance and shows that the enhanced human rights accountability of state-owned enterprises need not contradict a level playing field between public and priv...

Allow me to begin with a personal note. Project finance (PF) and human rights was the issue my mentor Sheldon Leader was researching when I joined his team as a research assistant about 20 years ago, attempting the first stumbling steps in understanding business and human rights. When reading Kinnari Bhatt's book, I was surprised how little sustainable finance laws on reporting and transparency, or the twice updated Equator Principles, seem to have achieved in changing the main pressure points on the ground: time and 'obsess[ion] with shareholder return' (p. 189) to compensate for non-recourse risk. I was also surprised to see how little research seems to have gone into (technical aspects of) the subject in the time between the volume on Project Finance, Human Rights and Sustainable Development edited by Leader and Ong in 2011 and Bhatt's book in 2020. Secrecy, as Bhatt highlights, continues to surround PF and impedes effective respect and protection of human rights, particularly indigenous peoples' rights. As several case studies published after Bhatt's book confirm, this impact is heightened in countries in the Global South. In her book, the author leads the reader through different stages of analysis, starting from a case-based problem description and a review of the main 'lacunas' of protection: the fragmentation of risk and privatization in demise of public control. Bhatt then critically assesses the capacity of private initiatives to implement indigenous peoples' rights to land, and illustrates the problems encountered through several case studies (chapters 5 and 6) and examples (chapter 7). The final chapter entitled 'Moving Forward' contains a summary of the protection deficits and a sketch for an agenda of change, focused on both regulatory and private initiatives. Jennifer Lander's review already provided a detailed account of the main arguments, 1 and Ethan Guthro analysed the book's recommendations. 2 Through different actors' perspectives, already used by Leader, 3 and their techniques of contractual assurance of their interests, Bhatt shows the 'lacunas' through which rights violations creep into projects, even if the sponsors have committed to respecting these rights in the concession agreement. Bhatt demonstrates the structural and intentional, often complicit, absence of the state when setting up concessions in a (public) law-free space, through its withdrawal from its regulatory and oversight functions. At the micro-level, she comes to similar conclusions about the role of public law as Van Harten in his seminal Investment Treaty Arbitration and Public Law.

Allow me to begin with a personal note. Project finance (PF) and human rights was the issue my mentor Sheldon Leader was researching when I joined his team as a research assistant about 20 years ago, attempting the first stumbling steps in understanding business and human rights. When reading Kinnari Bhatt's book, I was surprised how little sustainable finance laws on reporting and transparency, or the twice updated Equator Principles, seem to have achieved in changing the main pressure points on the ground: time and 'obsess[ion] with shareholder return' (p. 189) to compensate for non-recourse risk. I was also surprised to see how little research seems to have gone into (technical aspects of) the subject in the time between the volume on Project Finance, Human Rights and Sustainable Development edited by Leader and Ong in 2011 and Bhatt's book in 2020. Secrecy, as Bhatt highlights, continues to surround PF and impedes effective respect and protection of human rights, particularly indigenous peoples' rights. As several case studies published after Bhatt's book confirm, this impact is heightened in countries in the Global South. In her book, the author leads the reader through different stages of analysis, starting from a case-based problem description and a review of the main 'lacunas' of protection: the fragmentation of risk and privatization in demise of public control. Bhatt then critically assesses the capacity of private initiatives to implement indigenous peoples' rights to land, and illustrates the problems encountered through several case studies (chapters 5 and 6) and examples (chapter 7). The final chapter entitled 'Moving Forward' contains a summary of the protection deficits and a sketch for an agenda of change, focused on both regulatory and private initiatives. Jennifer Lander's review already provided a detailed account of the main arguments, 1 and Ethan Guthro analysed the book's recommendations. 2 Through different actors' perspectives, already used by Leader, 3 and their techniques of contractual assurance of their interests, Bhatt shows the 'lacunas' through which rights violations creep into projects, even if the sponsors have committed to respecting these rights in the concession agreement. Bhatt demonstrates the structural and intentional, often complicit, absence of the state when setting up concessions in a (public) law-free space, through its withdrawal from its regulatory and oversight functions. At the micro-level, she comes to similar conclusions about the role of public law as Van Harten in his seminal Investment Treaty Arbitration and Public Law.

Luego de pasar revista a la literatura especializada sobre la implementación de decisiones de tribunales internacionales de derechos humanos por parte de los Estados nacionales, así como el grado de cum- plimiento que exhiben los países del Sistema Interamericano de Derechos Humanos respecto de sus fallos y otras decisiones, el artículo analiza la situación especí ca de Chile en este ámbito, abordando la forma en que los diversos órganos del Estado implementan las sentencias y decisiones de la Corte y de la Comisión Interamericanas de Derechos Humanos. Para esto, el trabajo introduce los conceptos de “hitos de compromiso” e “hitos de resistencia”, que contribuyen a caracterizar la relación entre los órganos del Estado y las decisiones del Sistema Interamericano. Final- mente, analiza la institucionalidad para la implementación de decisiones internacionales de derechos humanos en Chile.