Such a course of action by the Commission would find strong support in international
jurisprudence.295 International courts have relied on the UNGPs to establish that businesses
“must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for
the adverse human rights impacts directly linked to their activities.” 296 The IACtHR reached this
conclusion in a case involving mining activities that resulted “in the adverse impact on the
environment and, consequently, on the rights of the indigenous peoples.” 297
Similarly, after examining international developments in the area of business and human
rights, and specifically the UNGPs, as well as provisions of the ICESCR and the UDHR, the
Tribunal in Urbaser v. Argentina concluded: “At this juncture, it is therefore to be admitted that
the human right for everyone’s dignity and its right for adequate housing and living conditions
are complemented by an obligation on all parts, public and private parties, not to engage in
activity aimed at destroying such rights.”298
The Special Tribunal for Lebanon found that the individual’s right to access remedy in
case of corporate violations was supported by the UNGPs on the grounds that the Guiding
Principles and their endorsement by the HRC:
represent a concrete movement on an international level backed by the United Nations
for, inter alia, corporate accountability. Although we are wary that such instruments are
non-binding, in light of the fact that corporations have been considered subjects of
international law [citing the Barcelona Traction case] the possibility of proceeding
against a corporation through criminal prosecution cannot discarded but rather criminal
regimes are regarded as an available remedy. The Appeals Panel considers these factors
to be evidence of an emerging international consensus regarding what is expected in
business activity, where legal persons feature predominantly, in relation to the respect for
human rights.299
Finally, the Working Group on the issue of human rights and transnational corporations
and other business enterprises has submitted letters of allegations and urgent appeals to both
States and companies by relying on the UNGPs. 300
295
See APF & GANHRI brief, at ¶¶ 47-49.
Kaliña and Lokono Peoples v. Suriname, Inter-Am. Ct. H. R., Judgment (Merits, Reparations, and Costs), ¶ 224
(Nov. 25, 2015), http://www.corteidh.or.cr/docs/casos/articulos/seriec_309_ing.pdf.
297
Id. at ¶ 223.
298
Urbaser S.A. & Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic,
ICSID Case No. ARB/07/26, Award, ¶ 1999 (Dec. 8, 2016).
299
Case against New TV S.A.L. and Karma Mohamed Tahsin al Khayat, STL-14-05/PT/AP/ARI26.1, Decision on
Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, Special Tribunal for Lebanon, ¶ 46
(Oct. 2, 2014).
300
See Ioana Cismas & Sarah Macrory, The Business and Human Rights Regime under International Law: Remedy
Without Law? (forthcoming 2018) (on file with Cismas).
296
61
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