The The State Obligation to Regulate and Enforce Human Rights Due Diligence Procedures. Notes from the Inter-American Human Rights System

Abstract

This paper addresses the issue of human rights due diligence from an Inter-American and international human rights law perspective. Although States in the region have largely neglected to establish a uniform and systemic regulatory framework, the case law of the Inter-American Court of Human Rights imposes a binding obligation—by virtue of the principle of conventionality control and Article 2 of the American Convention on Human Rights (1969)—to regulate this matter. The paper explores how recent rulings have operationalized the United Nations Guiding Principles on Business and Human Rights, establishing them as a normatively binding obligation under international law pursuant to the duty of guarantee set forth in Article 1.1 of the Convention. Additionally, the article proposes six foundational pillars that any regulatory framework in this area should incorporate within its compliance programs. It also examines the evolving role of the compliance officer, now envisioned as an "auxiliary" of the Inter-American Human Rights System, beyond merely serving as a manager of corporate private interests. Finally, the paper suggests the establishment of a state oversight or verification mechanism, which should be entrusted to an independent body separate from the Executive Branch.