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Sorry that we have to do it soon. Cause I miss.

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I really miss that lovely old library at Alsos.

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So I'm going to start sharing my presentation so we can remember this this lovely place.

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Well, the thing I'm going to talk a budget today is something I've been working for for quite a few months and

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years because my current research is about human rights standards as an alleged source of international law.

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It is often seen in the international human rights systems operators discourse,

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as well as the national legal operators discourse, the use of the terms,

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human rights standards or international human rights standards almost as a synonym for human rights or the obligation that states have in this area.

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I need to make an important clarification. My dissertation is in Spanish.

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So the concept I am working on is done.

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That is international interest for months, which is often translated as international human rights standards.

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But I'm not sure this is quite correct. This is the way in which then the official translation, something from a consistent human rights translate.

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This is phrased, this expression.

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But at least you should be advised that if done, that is not what usually lawyers call standards in the Anglo speaking world.

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So if you all. Think of the same thing when you say standards, which I.

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Not so sure of that.

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So anyway, this human rights standards are usually consider not to refer solely to the normative expression of human rights in treaties,

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custom or general principles of law.

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On the contrary, such expression is given a use that also includes non-binding instruments whose normative legal content is doubtful,

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or at least its binding ness is not expressly declared or recognised by any international rule.

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So, for example, declarations, combat's resolutions of international organisations, collections of good practises and also judicial decisions.

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Bews in general, comments of treaty bodies, etc. all are Arkel.

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Human rights standards or human rights standards are contained in all of these different examples.

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So the problem is that there is no clear definition of of human rights standards.

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And not only that, but also it seems that few have wandered so far.

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What they really are. But however, I think that many times ingeniously or some other times boldly,

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they are invoked as a rule of conduct, as a source of obligations for states and other non-state subjects,

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even when its contents has clearly not been determined by by the traditional sources

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of international law or based on the traditional sources of international law.

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So this this term, human rights standards. Or the equivalent, eh, in the region of the Americas?

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Inter-American standards is not an ambiguous.

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And its content is uncertain.

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But the problem is not only one of the polysemy of language, but it is possible that this term is used as a performative utterance,

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pursuing specific ideologic intentionality with a meaning that is attributes to it.

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So put it in simple words. It is used for a progressive case for human rights.

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So to push forwards to to to create a new human rights obligations.

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And I think this is the case in the Inter-American system. And we will see why in my presentation.

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So this is the outline of what I'm planning to say.

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We have talked about what our international human rights standards are now.

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And we'll talk a little bit more about this.

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And then how does the both the Inter-American Commission on Human Rights and the Environment and important human rights set standards.

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Then after that, I'm going to give an example of one Inter-American standard.

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How it is created and developed.

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And then finally, I'm going to to ask the question if this is international or making what the Inter-American bodies are doing when setting standards,

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if they are creating new law, the international law, and why this is problematic.

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So let's continue with this. This is definition by big dog there.

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When he splays what is the process of standard setting?

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And he says that it is the process of negotiating and adopting specific norms of conduct on specific subjects.

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For example, torture, refugees, women, women's rights, et cetera.

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He says that usually the standard setting process starts with a proposal made by one or more states and possibly NGO goes to an international or an

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intergovernmental translation such as the U.N. for adoption of a resolution calling for the establishment of human rights standards in a given area.

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After this resolution is adopted, it is followed by negotiation and adoption of a declaration setting forth the

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human rights principles agreed upon in a non binding international instrument.

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And finally, this process is supposed to lead to the negotiation and adoption and ratification of a binding international legal instrument,

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such as a convention or covenants or treaty.

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That sets forth the standards in positive legal terms.

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But this is what is usually understood, foreign human rights standards at, let's say, an international universal level.

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But then the Inter-American system.

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In in recent years, especially, they have.

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Started to use this phrase to refer to other other realities.

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Not only this process of negotiation by states of negotiating and proposing and setting new standards,

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but they have to start talking about Interamerican standards or international human rights standards

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as a collection of Oracle compendia of the jurisprudence of the court and the commission.

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I'm going to to to talk a little bit more about this in just a while.

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Well, I just explain how the Inter-American Commission especially and set standards.

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So, you know, there are two bodies in the instrument system there, the commission and the court.

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How does the commission set standards?

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They the the you surely do this through their case, law or jurisprudence.

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There's an issue with with this word that as I understand that in in especially in British English,

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you called jurisprudence to the philosophy of lawyers.

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And I'm talking about the case law or the other the things that the commissioner

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has said through their reports in cases or through their precautionary measures,

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but also commission issues, type of reports that are called traumatic reports, which they say said are they collect there.

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Many of the decisions of the office themselves of the commission also decisions by the by the the court and a myriad of other sources.

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They they usually referred there to pronunciations by U.N. treaty bodies or decisions by the

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European Court of Human Rights and even maybe opinions by NGOs or or doctrine generally.

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So one day they issued this report. They are they are very much doing so.

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They are issuing this two or three of this a year, maybe more.

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You can see there a picture of the website of the commission.

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You would see compendium on the Labour and Trade Union rights,

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Inter-American standards or no standards on the rights of persons deprived of liberty and whatever reasons,

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human rights and certain standards and the late. The latest is the one I called the standards about standards,

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because is the compendium on the obligation of states to adopt their domestic legislations to the Inter-American standards of human rights.

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So as I said, there is no clear definition or maybe each of these reports would have a different notion of what a standard is.

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I'm gonna I I'm reading you this one here because I found it in a footnote in one of these reports that says for the purposes of this report,

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the concept of legal standards is defined as a set of judicial decisions,

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thematic and country reports and other recommendations adopted by the Inter-American Commission on Human Rights.

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The term legal standard is also refers to the regional human rights treaties that govern the system,

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such as the American Convention and the Convention of.

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But the concept also refers to the judgements and advisory opinions issued by the American Inter-American Court of Human Rights.

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So, as you can see. It is a big, big group of things which contains.

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What would we would naturally think of standards, which are the rules contained in the treaties,

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the engineering convention, the American Convention and the other conventions,

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but also these standards would be defined as the set of judicial decisions, reports, other recommendations,

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judgements are better being instead of court, etc. So it's a big, big collection of things.

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This is how the instrument and commission develops.

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What they now call inter American standards, just a little word.

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And before I get into the court, you should be a of the way in which the Inter-American Commission works.

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It's you know, the commission is formed by seven members, seven commissioners, which are not full time in their job.

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But they have the help of the agenda of the executive, six areas of the commission, which is a group of specialised lawyers which work full time,

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but they also usually work with interns, unpaid interns or consultants, and maybe maybe these dramatic reports.

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Many of them are written by consultants, someone that is retained for the liberation of these reports, which, of course, they are.

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After that, they are approved by the full commission. Also, the members have to vote on and approve this these reports.

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But this is how I think. I think this is one of the reasons why these reports are many are very different sometimes.

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And maybe the concept of standards that each of these reports I handle are different is because they are written by different people,

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which are not always working full time.

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So they they don't even share the, you know, the methods of work of the body.

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So you would find these different dramatic reports.

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Some of them would use more of the I don't know if the judgements and advice or opinions of the of the court

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and some others would does more in other type of off of sources from outside of the Internet and said some,

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etc. Just look forward to. How does the Internet concordant you read set standards.

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And I just going to talk a little bit about the commission and its control, then maybe you are familiar with this concept.

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I know no time to explain it very deep, but it is important to to to understand how this works,

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because it is very it's very fundamental in the creation of the standards by the court.

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So Commission I to control.

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In the image of constitutionality control, that is to say, the judicial review by the court of the validity of and say legislative act.

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But a decent review that is not only done by the Inter-American Court, but they had,

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as they have said, that there is an international obligation on public authorities,

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judges and all public authorities in all state parties to the American Convention to interpret any legal norm.

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That is from the Constitution to a law degree or a court judgement to interpret that domestic

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legal norm in a manner compatible with the convention as interpreted by the international court.

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So not only the text of the convention, but also the interpretations of the convention by the international court.

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So in this way, the court sought to transform domestic judges and any public authority into alleys,

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empowering them to comply with the interpretation of the American Convention,

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human rights and even the entire Internet and human rights court procedures.

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So this this corpus, you're saying just let me give you a little word on this.

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It's also a concept that was developed by the by then case law of the Inter-American Court.

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When they say in one of the advisory opinions back in 1999,

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they said the Corpus Eurus of international human rights law comprises a set of international instruments of barite content and juridical effects,

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treaties, conventions, resolutions and declarations.

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It's a dynamic evolution has had a positive impact on international law in affirming and building up the latter's

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faculty for regulating relations between states and human beings within their respective jurisdictions.

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This court, therefore, must adopt the proper approach to consider this question in the context of the

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evolution of the fundamental rights of human person in contemporary international law.

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So this this concept developed by the court.

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It starts in this in its first formulation, saying that when they talk about Corpus Urist, they talk about a set of international instruments.

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And they they recognise that are authorised content and juridical effects.

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So they they at the beginning, they they didn't say everything is the same treaties, conventions and resolutions and declarations.

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But this was 1999. They have been repeating this concept of corpus hearings in very different sets of cases about indigenous peoples,

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about children's rights, whatever you you name it.

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And now they are only talking about the corpus juris, but without this nuance of the variety juridical effect.

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So now I think the court gives the same to the Gulf rights to everything that is contained in this Corpus Urus.

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So combine this Corpus Eurus concept with that conventionality control.

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And what you will have is that the court is saying that everything that is

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part of the corpus sheerest is binding on every on every state of the internal

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system because everyone is bound and has this obligation to interpret any of

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their domestic law in a manner compatible with this corpus series in a manner.

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And that is according to the jurisprudence of the Internet.

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And this is, as you can see, our creation and then add an amplification of day of dange American law,

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not limiting that only to the treaties or the same treaties,

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ghasem and principles, general principles, but to everything that the court has say has said through its jurisprudence.

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So. I would find to say about this that the impact of compression notice to control within domestic legal orders.

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As well as in the in the in the academic work. Was.

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And remains very strong.

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But attitudes toward the launch of these of these doctrine range from full acceptance to reservations through to strong opposition.

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So this this is still still being discussed in there in the Inter-American system.

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Although the court insists that commission into control is something that is why it was created, but then something that should be followed.

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Let's move forward to then the next piece of my presentation I'm going to do is to use some minutes here to try to explain in detail one standard.

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I think this is a good way of understanding all the all the implications of this doctrine of the Internet and standard standards have is by analysing,

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let's say, the anatomy of one specific standard.

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So I've chosen one example, the case of the delegation of the duty to consult indigenous peoples.

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I'm so sorry.

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What you see in this image here is one of the dramatic reports by the commission is not

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very clear about one of the traumatic reports of the commission and from to Sultan nine,

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that is called the indigenous and tribal peoples rights over their ancestral lands and natural resources.

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This Dundar I'm going to to talk to you about now is the one I put in red that was there.

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And it's it's formulated like this.

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Carrying out consultation procedures is a responsibility of the state that cannot be delegated to other parties,

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such as the companies seeking that concession or investment contract.

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So I'd pick this example relating to the matter of indigenous people's rights and specifically free, Bryan, from consent or consultations.

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Right. Marginally, because in this area, it's in this area where the American system bodies have Dibella and are set a huge number of standards.

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And it's it's a famous for this.

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Even other original systems like the African System, Human Rights, have quoted the Inter-American System for Indigenous Peoples Rights and standards.

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So. So let's go a little bit on how this specific standard,

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what I call that the prohibition of the delegation of the duty of this state duty to themselves have been developed by their system.

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So to begin with, neither the commission nor the court have traditionally favour direct responsibilities for corporations in these cases,

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appearing essentially to bribe bids, the delegation of consultations to private entities.

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In fact, the commission expressly rejected this possibility in in their 2009 dramatic report.

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They said they're carrying out consultation procedures. It's the responsibility of the state and not of other parties,

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such as the company seeking a concession or investment contract in many countries that form part of the Inter-American system,

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the state responsibility to conduct prior consultation to be transferred to private parties,

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generating ad de facto privatisation of the state's responsibility.

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The result in the negotiation processes with local communities then often fail to

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take into consideration a human rights framework because corporate actors are,

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as a matter of definition, profit seeking entities that are therefore not impartial.

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Consultation with indigenous peoples is a duty of states which must be complied with by the competent public authorities, unquote.

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So foreseen this. The commission was based not.

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On Inter-American norms, actually, not the American commission can writes us nothing about indigenous peoples rights.

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There is no instrument in the Inter-American system about indigenous rights.

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So it was based on language from the United Nations rapporteur on indigenous peoples.

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The reference was to the UN special rapporteur on indigenous peoples.

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Reports of 2009, James Sanaya, which you're seeing him in the picture in which James NASA,

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in accordance with the well grounded principles of international law, the duty of the state to protect the human rights of indigenous peoples,

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including its duty to consult with indigenous peoples concerned before carrying out activities that affect them,

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is not one that can be avoided through delegation to a private company or other entity.

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And although an eye. James and I expressed similar concerns in his 2011 annual report, in an addendum he made to that report of something.

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And he made reference to a country in which he observed that consultations had been delegated de facto

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to enterprises responsible for the execution of certain projects and the matter of his concern.

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There was not the delegation itself, but the fact that it was done without due supervision of the state.

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So this latter stance, of course,

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with the position sustained by the Committee of experts on the application of conventions and recommendations of the ILO,

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the committee that interprets ILO conventions, and this committee when interpreting ILO Convention 169 one on Indigenous Peoples Rights,

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they have accepted that the companies in charge of exploration and exploitation of oil in in indigenous lands could carry out consultations.

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So we can see that the UN rapporteur is little by little moving towards this possibility.

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The committee of the ILO accepts it, accepts it, but.

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The position of the Inter-American Commission was adopted by the Inter-American and Court three years later.

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Okay, so then this doctrine of general prohibition against the transfer of responsibility with respect to

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the duty to consult was adopted by the court in this area of case of 2012 in Syria versus Ebola.

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The court said there it should be emphasised that the obligation to consult is the responsibility of the state.

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Therefore, the planning and executing of the consultation process is not an obligation

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that can be avoided by delegating it to a private company or to third parties,

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much less delegating it to the very company that is interested in exploiting their resources in the territory of the community.

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That must be consult. So on, nevertheless, in this case, the court adopted that the interim our commission position with Nuance's for it.

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It left the door open for a possible delegation because they they consider in this case and any political case in

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which such a delegation process could be delegated to private third parties with some conditions they mentioned there.

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In any case, what is important is to note at this point that in terms of NIST final report as U.N. rapporteur, he changed.

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Shifted his position on the delegation. This was his report in 2013,

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and he said the special rapporteur has observed that in many instances companies negotiate

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directly with indigenous peoples about proposed extractive activities that may affect them,

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with states,

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in effect delegating to companies the execution of the state's duty to consult with indigenous peoples prior to authorising the extractive activities.

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By beer, two of the right to self-determination, indigenous peoples are free to enter into negotiations directly with companies if they so wish.

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Indeed, direct negotiations between companies and indigenous peoples may be the most efficient and desirable way of arriving at agreed upon

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arrangements for extraction of natural resources within indigenous territories that are fully respectful of indigenous peoples rights.

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And they may provide indigenous peoples opportunities to pursue their own development priorities.

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And fortunately, despite the fact that this a bath scene tends to be taken by the court in very recent cases,

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we can still find references and quotes often as 2009 report.

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Despite his position to change in 2013.

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So there and even if we look to the reports of the successor of Analia as UN Special Rapporteur on the rights of indigenous peoples.

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Victoria told the Corpus. They have nothing that may suggest that the possibility of delegation of the dudes to consult is forbidden.

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However, it is unclear why both the Inter-American Commission and the Inter-American Court still quote in this regard.

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The abandoned position. So I don't know if someone can relate to this.

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But you can imagine this scene.

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A father and a three year old girl. You know the father say it's time to brush your teeth.

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Why? Because we brush our teeth at bedtime. Why?

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Because we want to have healthy. Why? So we can chew.

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Why? And before your preschooler can throw you another way, you shout the line of questioning down, say, because I say so.

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So if we ask in some local courts, why aren't companies allowed to consult indigenous peoples?

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The first answer will probably be because corporate actors are profit seeking entities that are therefore not impartial.

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Why? Because the commission said so. Why?

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Because the UN rapporteur on indigenous people said so. But if he changed his mind, why, it was the way we still stick to it.

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Because I say so. OK.

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So this is how I imagine that the process of of the explanation and foundation of some of their own decisions, of course, not all of them, but.

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How many are interpreting standards are are created and based.

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They just called different sources. But with no really binding nature.

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So it finally the only reason and the only reason that of those decisions is the the wheel of.

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The court or the instrument and commission.

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So this is why I compare this with this, I compared this activity to international law making in the case of this one of these two bodies.

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OK, so maybe you can you can think of this.

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I don't know if you remember then Drew Drew Carey Show.

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I'm sorry. I'm just here. Then remember this show on TV where Drew Carey was saying that the Show US called and.

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This show where he said welcome to the show, where everything is made up and points don't matter.

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Maybe you can recall that on that famous show.

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There was so there's a meme about the Internet and human rights standards when people would say welcome to the Internet,

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can stand there where everything is made up and sources don't matter.

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OK. So, of course, this is an exaggeration,

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but it is starting to make some states at the Inter-American system mad about

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this because they think that the Interamerican and bodies are creating new law.

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And so did the phenomenon I am describing a here leads to to the creation of human rights,

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not by being true of the sources of international law, but by that, but by other means.

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And that's described by our agenda on mainstream international legal discourses, articulate themselves, Arang,

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a distinction between binding ness and interpretative effects,

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and correal actively with this between the doctrine of the sources and the doctrine of interpretation.

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So I say cedes the tendency to use the term human rights standards and applied them and see if they were.

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And as a source of international law, I sought a source on its own, blurs the lines between hard and soft law,

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and it's probably the consequence of the blurring of the lines between sources and

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interpretation in the practise of the Inter-American Commission and the Inter-American Court.

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So the question is, is, is this a problem?

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I think it is, because if the reality described by the term human rights standards or Inter-American human rights standards,

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if this reality is a source of international law,

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then states and other obliged subjects should be able to know with certainty what their obligations are.

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In order to fulfil them and not incur in international responsibility.

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But if the content of these standards or it's binding, this is not clear.

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They cannot know how to abide by the law.

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And this I assure you, this alienates states because they are starting to think that human rights standards are like Trojan horses.

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They bring things inside that they are not ready to deal with or they have not consent to be obliged.

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But by those states are are pretty sure what they are.

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They should be at least what they assume is an obligation when they negotiate and ratify a treaty.

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But they don't know what the contents are in these big compendia.

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This thematic reports that contain a lot of different things based on language of different different places or based on,

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for example, even treaties that they are not part to.

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And while, et cetera. So just a final words, because I'm approaching the time limit.

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That is what I call the Barbossa paradox. You may recall this movie, The Pirates of the Caribbean, and just want to show you a little little piece of.

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OK. So what I call the Barbossa paradox is it's contained in this discussion.

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That is the problem that. Maybe to to try to support this position, I'm I'm sucking in in in in this presentation by saying that.

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Human rights standards are not actual rules, but they are something that states should, of course, take into consideration.

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But they are not bound by those.

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And the problem here is and that's what I call a paradox, that Barbossa paradox is that it sounds like the argument that a pirate would give you.

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OK. So states that would say, well, I'm not bound by what the commission says or by by what the courts had said.

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In a case that is not that I'm not a party, et cetera, is it reminds us of this argument that the code is smart.

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What you'd call guidelines than actual rules.

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Well, I know this sounds it sounds like supporting pirate states, but but the the problem if if we don't differentiate it,

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we don't don't really differentiate on what our actual rules and,

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you know, actual obligations contained in the sources of international law and and in and in the rest of standards is it's a real problem.

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And and we may lose a lot of states that are already complaining about this proliferation and creation of what they call human rights overreach.

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So I have a proposal that is distinguished in to make a distinction between

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human rights and human rights standards as to said two different sets of norms.

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OK. So and each of these would be actually that the promise of two different activities,

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lawmaking when we create new human rights by those in the way in which international law is created and then standards setting.

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That, of course, is a very useful and useful activity.

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And we still need the courts and the commission to continue producing standards.

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And because they are the ways in which states are guided on how to abide by their obligations.

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But they're they're not supposed to be bound by each of these ways in which the

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commission or the court would think these obligations should be should be done.

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And the example I am coming back to the example of the delegation of the court.

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Why should the states not delegated the obligation to consult in a corporation

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if they wish to do that and do it in that way through their domestic law,

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just because the commission of the court have said they cannot do so if that is not based in any of

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the actual human rights obligations contained in the treaties that are applicable to the situation.

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Okay, so that's why I believe it's important to make this distinction between what are

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the actual human rights obligations and the rest of human rights standards.

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And I will. And here with the presentation and we'll be open to your questions.