Sorry that we have to do it soon. Cause I miss.
I really miss that lovely old library at Alsos.
So I'm going to start sharing my presentation so we can remember this this lovely place.
Well, the thing I'm going to talk a budget today is something I've been working for for quite a few months and
years because my current research is about human rights standards as an alleged source of international law.
It is often seen in the international human rights systems operators discourse,
as well as the national legal operators discourse, the use of the terms,
human rights standards or international human rights standards almost as a synonym for human rights or the obligation that states have in this area.
I need to make an important clarification. My dissertation is in Spanish.
So the concept I am working on is done.
That is international interest for months, which is often translated as international human rights standards.
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.
This is phrased, this expression.
But at least you should be advised that if done, that is not what usually lawyers call standards in the Anglo speaking world.
So if you all. Think of the same thing when you say standards, which I.
Not so sure of that.
So anyway, this human rights standards are usually consider not to refer solely to the normative expression of human rights in treaties,
custom or general principles of law.
On the contrary, such expression is given a use that also includes non-binding instruments whose normative legal content is doubtful,
or at least its binding ness is not expressly declared or recognised by any international rule.
So, for example, declarations, combat's resolutions of international organisations, collections of good practises and also judicial decisions.
Bews in general, comments of treaty bodies, etc. all are Arkel.
Human rights standards or human rights standards are contained in all of these different examples.
So the problem is that there is no clear definition of of human rights standards.
And not only that, but also it seems that few have wandered so far.
What they really are. But however, I think that many times ingeniously or some other times boldly,
they are invoked as a rule of conduct, as a source of obligations for states and other non-state subjects,
even when its contents has clearly not been determined by by the traditional sources
of international law or based on the traditional sources of international law.
So this this term, human rights standards. Or the equivalent, eh, in the region of the Americas?
Inter-American standards is not an ambiguous.
And its content is uncertain.
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,
pursuing specific ideologic intentionality with a meaning that is attributes to it.
So put it in simple words. It is used for a progressive case for human rights.
So to push forwards to to to create a new human rights obligations.
And I think this is the case in the Inter-American system. And we will see why in my presentation.
So this is the outline of what I'm planning to say.
We have talked about what our international human rights standards are now.
And we'll talk a little bit more about this.
And then how does the both the Inter-American Commission on Human Rights and the Environment and important human rights set standards.
Then after that, I'm going to give an example of one Inter-American standard.
How it is created and developed.
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,
if they are creating new law, the international law, and why this is problematic.
So let's continue with this. This is definition by big dog there.
When he splays what is the process of standard setting?
And he says that it is the process of negotiating and adopting specific norms of conduct on specific subjects.
For example, torture, refugees, women, women's rights, et cetera.
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
intergovernmental translation such as the U.N. for adoption of a resolution calling for the establishment of human rights standards in a given area.
After this resolution is adopted, it is followed by negotiation and adoption of a declaration setting forth the
human rights principles agreed upon in a non binding international instrument.
And finally, this process is supposed to lead to the negotiation and adoption and ratification of a binding international legal instrument,
such as a convention or covenants or treaty.
That sets forth the standards in positive legal terms.
But this is what is usually understood, foreign human rights standards at, let's say, an international universal level.
But then the Inter-American system.
In in recent years, especially, they have.
Started to use this phrase to refer to other other realities.
Not only this process of negotiation by states of negotiating and proposing and setting new standards,
but they have to start talking about Interamerican standards or international human rights standards
as a collection of Oracle compendia of the jurisprudence of the court and the commission.
I'm going to to to talk a little bit more about this in just a while.
Well, I just explain how the Inter-American Commission especially and set standards.
So, you know, there are two bodies in the instrument system there, the commission and the court.
How does the commission set standards?
They the the you surely do this through their case, law or jurisprudence.
There's an issue with with this word that as I understand that in in especially in British English,
you called jurisprudence to the philosophy of lawyers.
And I'm talking about the case law or the other the things that the commissioner
has said through their reports in cases or through their precautionary measures,
but also commission issues, type of reports that are called traumatic reports, which they say said are they collect there.
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.
They they usually referred there to pronunciations by U.N. treaty bodies or decisions by the
European Court of Human Rights and even maybe opinions by NGOs or or doctrine generally.
So one day they issued this report. They are they are very much doing so.
They are issuing this two or three of this a year, maybe more.
You can see there a picture of the website of the commission.
You would see compendium on the Labour and Trade Union rights,
Inter-American standards or no standards on the rights of persons deprived of liberty and whatever reasons,
human rights and certain standards and the late. The latest is the one I called the standards about standards,
because is the compendium on the obligation of states to adopt their domestic legislations to the Inter-American standards of human rights.
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.
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,
the concept of legal standards is defined as a set of judicial decisions,
thematic and country reports and other recommendations adopted by the Inter-American Commission on Human Rights.
The term legal standard is also refers to the regional human rights treaties that govern the system,
such as the American Convention and the Convention of.
But the concept also refers to the judgements and advisory opinions issued by the American Inter-American Court of Human Rights.
So, as you can see. It is a big, big group of things which contains.
What would we would naturally think of standards, which are the rules contained in the treaties,
the engineering convention, the American Convention and the other conventions,
but also these standards would be defined as the set of judicial decisions, reports, other recommendations,
judgements are better being instead of court, etc. So it's a big, big collection of things.
This is how the instrument and commission develops.
What they now call inter American standards, just a little word.
And before I get into the court, you should be a of the way in which the Inter-American Commission works.
It's you know, the commission is formed by seven members, seven commissioners, which are not full time in their job.
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,
but they also usually work with interns, unpaid interns or consultants, and maybe maybe these dramatic reports.
Many of them are written by consultants, someone that is retained for the liberation of these reports, which, of course, they are.
After that, they are approved by the full commission. Also, the members have to vote on and approve this these reports.
But this is how I think. I think this is one of the reasons why these reports are many are very different sometimes.
And maybe the concept of standards that each of these reports I handle are different is because they are written by different people,
which are not always working full time.
So they they don't even share the, you know, the methods of work of the body.
So you would find these different dramatic reports.
Some of them would use more of the I don't know if the judgements and advice or opinions of the of the court
and some others would does more in other type of off of sources from outside of the Internet and said some,
etc. Just look forward to. How does the Internet concordant you read set standards.
And I just going to talk a little bit about the commission and its control, then maybe you are familiar with this concept.
I know no time to explain it very deep, but it is important to to to understand how this works,
because it is very it's very fundamental in the creation of the standards by the court.
So Commission I to control.
In the image of constitutionality control, that is to say, the judicial review by the court of the validity of and say legislative act.
But a decent review that is not only done by the Inter-American Court, but they had,
as they have said, that there is an international obligation on public authorities,
judges and all public authorities in all state parties to the American Convention to interpret any legal norm.
That is from the Constitution to a law degree or a court judgement to interpret that domestic
legal norm in a manner compatible with the convention as interpreted by the international court.
So not only the text of the convention, but also the interpretations of the convention by the international court.
So in this way, the court sought to transform domestic judges and any public authority into alleys,
empowering them to comply with the interpretation of the American Convention,
human rights and even the entire Internet and human rights court procedures.
So this this corpus, you're saying just let me give you a little word on this.
It's also a concept that was developed by the by then case law of the Inter-American Court.
When they say in one of the advisory opinions back in 1999,
they said the Corpus Eurus of international human rights law comprises a set of international instruments of barite content and juridical effects,
treaties, conventions, resolutions and declarations.
It's a dynamic evolution has had a positive impact on international law in affirming and building up the latter's
faculty for regulating relations between states and human beings within their respective jurisdictions.
This court, therefore, must adopt the proper approach to consider this question in the context of the
evolution of the fundamental rights of human person in contemporary international law.
So this this concept developed by the court.
It starts in this in its first formulation, saying that when they talk about Corpus Urist, they talk about a set of international instruments.
And they they recognise that are authorised content and juridical effects.
So they they at the beginning, they they didn't say everything is the same treaties, conventions and resolutions and declarations.
But this was 1999. They have been repeating this concept of corpus hearings in very different sets of cases about indigenous peoples,
about children's rights, whatever you you name it.
And now they are only talking about the corpus juris, but without this nuance of the variety juridical effect.
So now I think the court gives the same to the Gulf rights to everything that is contained in this Corpus Urus.
So combine this Corpus Eurus concept with that conventionality control.
And what you will have is that the court is saying that everything that is
part of the corpus sheerest is binding on every on every state of the internal
system because everyone is bound and has this obligation to interpret any of
their domestic law in a manner compatible with this corpus series in a manner.
And that is according to the jurisprudence of the Internet.
And this is, as you can see, our creation and then add an amplification of day of dange American law,
not limiting that only to the treaties or the same treaties,
ghasem and principles, general principles, but to everything that the court has say has said through its jurisprudence.
So. I would find to say about this that the impact of compression notice to control within domestic legal orders.
As well as in the in the in the academic work. Was.
And remains very strong.
But attitudes toward the launch of these of these doctrine range from full acceptance to reservations through to strong opposition.
So this this is still still being discussed in there in the Inter-American system.
Although the court insists that commission into control is something that is why it was created, but then something that should be followed.
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.
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,
let's say, the anatomy of one specific standard.
So I've chosen one example, the case of the delegation of the duty to consult indigenous peoples.
I'm so sorry.
What you see in this image here is one of the dramatic reports by the commission is not
very clear about one of the traumatic reports of the commission and from to Sultan nine,
that is called the indigenous and tribal peoples rights over their ancestral lands and natural resources.
This Dundar I'm going to to talk to you about now is the one I put in red that was there.
And it's it's formulated like this.
Carrying out consultation procedures is a responsibility of the state that cannot be delegated to other parties,
such as the companies seeking that concession or investment contract.
So I'd pick this example relating to the matter of indigenous people's rights and specifically free, Bryan, from consent or consultations.
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.
And it's it's a famous for this.
Even other original systems like the African System, Human Rights, have quoted the Inter-American System for Indigenous Peoples Rights and standards.
So. So let's go a little bit on how this specific standard,
what I call that the prohibition of the delegation of the duty of this state duty to themselves have been developed by their system.
So to begin with, neither the commission nor the court have traditionally favour direct responsibilities for corporations in these cases,
appearing essentially to bribe bids, the delegation of consultations to private entities.
In fact, the commission expressly rejected this possibility in in their 2009 dramatic report.
They said they're carrying out consultation procedures. It's the responsibility of the state and not of other parties,
such as the company seeking a concession or investment contract in many countries that form part of the Inter-American system,
the state responsibility to conduct prior consultation to be transferred to private parties,
generating ad de facto privatisation of the state's responsibility.
The result in the negotiation processes with local communities then often fail to
take into consideration a human rights framework because corporate actors are,
as a matter of definition, profit seeking entities that are therefore not impartial.
Consultation with indigenous peoples is a duty of states which must be complied with by the competent public authorities, unquote.
So foreseen this. The commission was based not.
On Inter-American norms, actually, not the American commission can writes us nothing about indigenous peoples rights.
There is no instrument in the Inter-American system about indigenous rights.
So it was based on language from the United Nations rapporteur on indigenous peoples.
The reference was to the UN special rapporteur on indigenous peoples.
Reports of 2009, James Sanaya, which you're seeing him in the picture in which James NASA,
in accordance with the well grounded principles of international law, the duty of the state to protect the human rights of indigenous peoples,
including its duty to consult with indigenous peoples concerned before carrying out activities that affect them,
is not one that can be avoided through delegation to a private company or other entity.
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.
And he made reference to a country in which he observed that consultations had been delegated de facto
to enterprises responsible for the execution of certain projects and the matter of his concern.
There was not the delegation itself, but the fact that it was done without due supervision of the state.
So this latter stance, of course,
with the position sustained by the Committee of experts on the application of conventions and recommendations of the ILO,
the committee that interprets ILO conventions, and this committee when interpreting ILO Convention 169 one on Indigenous Peoples Rights,
they have accepted that the companies in charge of exploration and exploitation of oil in in indigenous lands could carry out consultations.
So we can see that the UN rapporteur is little by little moving towards this possibility.
The committee of the ILO accepts it, accepts it, but.
The position of the Inter-American Commission was adopted by the Inter-American and Court three years later.
Okay, so then this doctrine of general prohibition against the transfer of responsibility with respect to
the duty to consult was adopted by the court in this area of case of 2012 in Syria versus Ebola.
The court said there it should be emphasised that the obligation to consult is the responsibility of the state.
Therefore, the planning and executing of the consultation process is not an obligation
that can be avoided by delegating it to a private company or to third parties,
much less delegating it to the very company that is interested in exploiting their resources in the territory of the community.
That must be consult. So on, nevertheless, in this case, the court adopted that the interim our commission position with Nuance's for it.
It left the door open for a possible delegation because they they consider in this case and any political case in
which such a delegation process could be delegated to private third parties with some conditions they mentioned there.
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.
Shifted his position on the delegation. This was his report in 2013,
and he said the special rapporteur has observed that in many instances companies negotiate
directly with indigenous peoples about proposed extractive activities that may affect them,
with states,
in effect delegating to companies the execution of the state's duty to consult with indigenous peoples prior to authorising the extractive activities.
By beer, two of the right to self-determination, indigenous peoples are free to enter into negotiations directly with companies if they so wish.
Indeed, direct negotiations between companies and indigenous peoples may be the most efficient and desirable way of arriving at agreed upon
arrangements for extraction of natural resources within indigenous territories that are fully respectful of indigenous peoples rights.
And they may provide indigenous peoples opportunities to pursue their own development priorities.
And fortunately, despite the fact that this a bath scene tends to be taken by the court in very recent cases,
we can still find references and quotes often as 2009 report.
Despite his position to change in 2013.
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.
Victoria told the Corpus. They have nothing that may suggest that the possibility of delegation of the dudes to consult is forbidden.
However, it is unclear why both the Inter-American Commission and the Inter-American Court still quote in this regard.
The abandoned position. So I don't know if someone can relate to this.
But you can imagine this scene.
A father and a three year old girl. You know the father say it's time to brush your teeth.
Why? Because we brush our teeth at bedtime. Why?
Because we want to have healthy. Why? So we can chew.
Why? And before your preschooler can throw you another way, you shout the line of questioning down, say, because I say so.
So if we ask in some local courts, why aren't companies allowed to consult indigenous peoples?
The first answer will probably be because corporate actors are profit seeking entities that are therefore not impartial.
Why? Because the commission said so. Why?
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.
Because I say so. OK.
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.
How many are interpreting standards are are created and based.
They just called different sources. But with no really binding nature.
So it finally the only reason and the only reason that of those decisions is the the wheel of.
The court or the instrument and commission.
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.
OK, so maybe you can you can think of this.
I don't know if you remember then Drew Drew Carey Show.
I'm sorry. I'm just here. Then remember this show on TV where Drew Carey was saying that the Show US called and.
This show where he said welcome to the show, where everything is made up and points don't matter.
Maybe you can recall that on that famous show.
There was so there's a meme about the Internet and human rights standards when people would say welcome to the Internet,
can stand there where everything is made up and sources don't matter.
OK. So, of course, this is an exaggeration,
but it is starting to make some states at the Inter-American system mad about
this because they think that the Interamerican and bodies are creating new law.
And so did the phenomenon I am describing a here leads to to the creation of human rights,
not by being true of the sources of international law, but by that, but by other means.
And that's described by our agenda on mainstream international legal discourses, articulate themselves, Arang,
a distinction between binding ness and interpretative effects,
and correal actively with this between the doctrine of the sources and the doctrine of interpretation.
So I say cedes the tendency to use the term human rights standards and applied them and see if they were.
And as a source of international law, I sought a source on its own, blurs the lines between hard and soft law,
and it's probably the consequence of the blurring of the lines between sources and
interpretation in the practise of the Inter-American Commission and the Inter-American Court.
So the question is, is, is this a problem?
I think it is, because if the reality described by the term human rights standards or Inter-American human rights standards,
if this reality is a source of international law,
then states and other obliged subjects should be able to know with certainty what their obligations are.
In order to fulfil them and not incur in international responsibility.
But if the content of these standards or it's binding, this is not clear.
They cannot know how to abide by the law.
And this I assure you, this alienates states because they are starting to think that human rights standards are like Trojan horses.
They bring things inside that they are not ready to deal with or they have not consent to be obliged.
But by those states are are pretty sure what they are.
They should be at least what they assume is an obligation when they negotiate and ratify a treaty.
But they don't know what the contents are in these big compendia.
This thematic reports that contain a lot of different things based on language of different different places or based on,
for example, even treaties that they are not part to.
And while, et cetera. So just a final words, because I'm approaching the time limit.
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.
OK. So what I call the Barbossa paradox is it's contained in this discussion.
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.
Human rights standards are not actual rules, but they are something that states should, of course, take into consideration.
But they are not bound by those.
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.
OK. So states that would say, well, I'm not bound by what the commission says or by by what the courts had said.
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.
What you'd call guidelines than actual rules.
Well, I know this sounds it sounds like supporting pirate states, but but the the problem if if we don't differentiate it,
we don't don't really differentiate on what our actual rules and,
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.
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.
So I have a proposal that is distinguished in to make a distinction between
human rights and human rights standards as to said two different sets of norms.
OK. So and each of these would be actually that the promise of two different activities,
lawmaking when we create new human rights by those in the way in which international law is created and then standards setting.
That, of course, is a very useful and useful activity.
And we still need the courts and the commission to continue producing standards.
And because they are the ways in which states are guided on how to abide by their obligations.
But they're they're not supposed to be bound by each of these ways in which the
commission or the court would think these obligations should be should be done.
And the example I am coming back to the example of the delegation of the court.
Why should the states not delegated the obligation to consult in a corporation
if they wish to do that and do it in that way through their domestic law,
just because the commission of the court have said they cannot do so if that is not based in any of
the actual human rights obligations contained in the treaties that are applicable to the situation.
Okay, so that's why I believe it's important to make this distinction between what are
the actual human rights obligations and the rest of human rights standards.
And I will. And here with the presentation and we'll be open to your questions.