Business corporations can and do violate all kind of human rights all over the world and Latin America is not the exception. Businesses’ social and economic power had overgrown the legal structures that regulated them. In response to this situation, and although the Inter American Human Rights System passive jurisdiction is limited to states, the Court and Commission have recognized direct obligations correlative to the rights protected in the American Convention over businesses and other non-state actors; expressly declared the violation of human rights by those non-state actors; and ordered or recommended reparations measures that suppose the direct involvement of businesses that negatively impacted the rights of the victims. This jurisprudence deserves to be studied in order to evaluate its effectiveness, if it is part of the mandate of this regional system of human rights, and understand the reasoning that lead these organs to allocate direct human rights obligations on businesses.
Good faith is a principle that guides all international law. The Vienna Convention has incorporated it for every moment of the life of the treaty. The rule of interpretation contained in Article 31 binds every interpreter. In terms of international jurisdiction in the field of Human Rights, this rule requires the judge to consider the particularities of the societies bound by the treaties. In this case, good faith is not a mere reference to a fundamental principle of International Law. It obligates the judge to a conduct that is the basis or assumption in the act of applying the rule of said article. The paper will refer itself to a possible absence of good faith in the application of those methods by the International Court of Human Rights, resulting in judicial activism. In this case, the presentation will refer to the Lagos vs. Peru judgment.
The Inter-American Court of Human Rights developed a doctrine called conventionality control (CvC). In general terms, this doctrine is somewhat similar to the idea of judicial review of legislation. According to the Court, CvC requires domestic judges and other bodies of States parties to the American Convention on Human Rights (ACHR) to depart from domestic legislation that runs counter to the ACHR or the Inter-American Court’s interpretation of it. Many scholars contend that the application of CvC should be carried out even if the domestic bodies that apply it have no constitutional power to do so. Others have a more restrictive interpretation and consider that domestic bodies would have to apply it to the extent of their power, according to their national constitutions. Apparently, the latter interpretation is gaining wider support, which is desirable, because only this reading would be compatible with the principles of international law, and possibly accepted by all member States.
In recent years, the Inter-American Court of Human rights has incorporated the reference to domestic law in its decisions. This approach might look for an inter-jurisdictional dialogue between local and supranational courts. It is not clear, however, whether this practice has any influence in the reasoning of the Court or whether the Court would arrive at the same conclusions without any reference to domestic law. On the other hand, the methodology used by the Court has flaws, such as (1) comparing norms of different rank, (2) superficially comparing the texts of the norms without looking at how the countries apply them, and (3) omitting from the comparison many of the member states of the Inter-American system. The paper suggests domestic law might have a more active role in the reasoning of international human rights courts, and proposes some changes to the Inter-American Court methods based on the practice of the European Court of Human Rights.