The IACHR is an autonomous and permanent organ of the OAS, created in 1959. Its mandate is established by the OAS Charter and the American Convention on Human Rights 1 . The main function of the IACHR is to promote and defend Human Rights in the Americas. In carrying out its mandate, the Commission may in particular 2 :
- Receive, analyse and investigate individual petitions which allege Human Rights violations (Title II, Chapter II of the Rules of Procedure, see sections below: Jurisdiction and Standing; Process and Outcome);
- Observe the general Human Rights situation in the OAS Member States, and publish special reports regarding the situation in a specific state, when it considers it appropriate (Article 58 of the Rules of Procedure). Such reports can address violations committed by businesses 3 ;
- Carry out on-site visits to countries to investigate a specific situation with the consent of the respective state. These visits usually result in the preparation of a report regarding the Human Rights situation observed, which is published and sent to the General Assembly (Article 3940 of the Rules of Procedure);
- Hold hearings or working groups on individual cases and petitions, or general and thematic hearings;
- Stimulate public consciousness regarding Human Rights in the Americas. To that end, the Commission carries out and publishes studies on specific subjects (Article 15 of the Rules of Procedure); and,
- Organize and carry out conferences, seminars and meetings with representatives of Governments, academic institutions, non-governmental groups, etc.
The IACHR meets in ordinary and special sessions several times a year to examine allegations of Human Rights violations in the hemisphere. It submits an annual report to the General Assembly of the OAS. The Commission can also prepare additional reports as it deems appropriate in order to perform its functions, and publish them as it sees fit (Article 586 of the Rules of Procedure).
While not specifically stated in the Rules of Procedure of the IACHR, NGOs may draw the attention of the Commission by submitting a report on a specific situation in a Member State that involves Human Rights violations. 4 Civil society organisations and victims may also raise awareness about specific issues by requesting thematic hearings (see “Hearings at the Commission” below).
What rights are protected?
The IACHR receives complaints for violations of the rights protected in: The American Convention on Human Rights (ACHR)
Civil and political rights (Article 3 to 25)
- Right to judicial personality (Article 3)
- Right to life (Article 4)
- Right to humane treatment (Article 5)
- Freedom from slavery (Article 6)
- Right to personal liberty (Article 7)
- Right to a fair trial (Article 8)
- Freedom from ex post facto laws (Article 9)
- Right to compensation (Article 10)
- Right to privacy (Article 11)
- Freedom from conscience and religion (Article 12)
- Freedom from thought and expression (Article 13)
- Right of reply (Article 14)
- Right of assembly (Article 15)
- Freedom of association (Article 16)
- Rights of the family (Article 17)
- Right to a name (Article 18)
- Rights of the child (Article 19)
- Right to nationality (Article 20)
- Right to property (Article 21)
- Freedom of movement and residence (Article 22)
- Right to participate in a government (Article 23)
- Right to equal protection (Article 26)
- Right to judicial protection (Article 25)
Economic, Social and Cultural Rights:
- Progressive development (Article 26)
Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”
- Right to work, (Article 6)
- Trade union rights (Article 8)
- Right to social security (Article 9)
- Right to health (Article 10)
- Right to a healthy environment (Article 11)
- Right to food (Article 12)
- Right to education (Article 13)
- Right to the benefits of culture (Article 14)
- Right to the formation and the protection of families (Article 15)
- Rights of children (Article 16)
- Protection of the elderly, of the handicapped, (Articles 17, 18)
Although Article 19(6) of the Protocol of San Salvador provides that the Commission and the Court may only examine individual communications for violations of the right of workers to organize and join a trade union (Article 8a) and the right to education (Article 13), the Court has developed an innovative jurisprudence that has given rise to the justiciability of the other economic, social and cultural (ESC) rights contained in this protocol. It has done this through a broad interpretation of article 26 of the ACHR on progressive development 5 , and article 29 of the same convention, which establishes the rules of interpretation of this instrument 6 .
In the 2017 case of "Lagos del Campo vs. Perú” which addresses the protection of the right to work linked to stability of employment and the freedom of expression of a Peruvian citizen, the Court recognised the violation of Article 26 of the ACHR. In its reasoning, the judges held that ESC rights derive not only from ACHR, but also the OAS Charter, and the American Declaration on the Rights and Duties of Man (see below). The judgement recognized the intrinsic relationship between these instruments, and thus that the right to stability of employment could be understood as autonomously protected under the Inter-American System and as a justiciable right that can be raised before the inter-American judge 7 .
The American Declaration on the Rights and Duties of Man 8
- Chapter I sets forth Civil and Political Rights as well as economic Social and Cultural Rights
- Chapter II sets forth a list of corresponding Duties
Not all Member States have ratified the American Convention on Human Rights. Those who have not 9 are therefore only bound by the American Declaration on the Rights and Duties of Man. Although the Declaration was not drafted to be a binding document, its incorporation into the statute of the Inter-American Commission, and the subsequent incorporation of this statute into the OAS Charter has seen the content of the declaration achieve hard-law status. 10 The binding value of the Declaration was confirmed by the Court in finding this instrument to be “a source of international obligations for the Member States of the OAS”. 11 It should be noted though that some states, such as the United States, continue to reject the Inter-American system’s view that the American Declaration has binding force.
Against whom may a petition be lodged?
A petition can only be presented where it is alleged that the State responsible for the Human Rights violation is an OAS member. If the case brought to the Commission is against a State Party to the American Convention on Human Rights, the Commission applies the Convention to process it. Otherwise, the Commission applies the American Declaration on the Rights and Duties of Man. These are not the only legal documents which the Commission can apply in its decisions. If the State party has ratified other conventions, then the relevant conventions or protocols may also be used to examine and consider the petition brought before the Commission 12 .
The Commission may study petitions alleging that:
- Human Rights violations were committed by state agents,
- A state failed to act to prevent a violation of Human Rights or,
- A state failed to carry out proper follow-up after a violation of Human Rights.
The American Declaration on the Rights and Duties of Man, as opposed to the American Convention on Human Rights, does not explicitly limit its jurisdictional scope. Besides, although no cases have so far looked at the issue of extraterritorial jurisdiction, the American Convention on Human Rights, which states in its Article 1 that “States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction […]” does not close the door on hearing cases concerning extraterritorial jurisdiction.
The Commission will normally find competence if “the acts occurred within the territory of a State party to the Convention”. 13 The Inter American system has considered that jurisdiction can be exercised when “[…] agents of a Member State of the OAS exercise effective ’authority and control’ over persons outside the national territory, but within the Americas region, [therefore] the obligations of the Member State(s) for the violations of the rights set forth in the American Declaration are engaged.” 14 The Commission did issue precautionary measures to the detainees in Guantanamo Bay, hence implying that the US had effective control over this territory and had extraterritorial obligations beyond those within other Member States to the IACHR. 15
The first time the Inter-American Commission took a position on the issue of states’ extraterritorial obligations concerning the conduct of companies outside their territory was in the framework of its 2015 Report on indigenous peoples, afro-descendant communities and extractive industries, where it highlighted the need to take into account different levels of involvement of the State of origin of the company executing the project, and by the host State of the activities at issue for the establishment of their degree of responsibility 16 .
Subsequently, in its 2017 Advisory Opinion on Human Rights and the Environment (see below), the Inter-American Court interpreted the concept of jurisdiction under Article 1(1) of the ACHR as encompassing any situation in which a State exercises authority or effective control over persons, within or outside its territory. The Court also clarified that the exercise of a State’s jurisdiction outside its territory is an exceptional situation that must be analysed on a case-by-case basis and in a restrictive manner 17 .
In 2019, the IACHR and its Special Rapporteur on Economic, Social, Cultural and Environmental Rights observed that there can be different levels of influence by States on the behaviour of private actors generating extraterritorial effects on the enjoyment of human rights. These institutions support the exercise of extraterritorial jurisdiction by states concerning the actions of companies, based on the concepts of authority and effective control. In some specific cases, the level of state influence may be significant by having greater influence over certain private actors’ behavior and end up involving their general obligations to respect 18 .
Going further… exploring extraterritoriality
It would therefore be difficult to envisage for example a petition claiming for Brazil’s responsibility for Human Rights violations committed by Brazilian companies in Africa. However, it may be possible for the Commission to issue recommendations to Brazil, in a report or a decision, for Human Rights violations committed by Brazilian companies operating in the Americas.
Who can file a petition?
Any person, group of persons or non-governmental organisation legally recognized in any of the OAS member States may present a petition to the Commission alleging violations of the rights protected in the American Convention and/or the American Declaration. 19 the petition may be presented on behalf of the person filing the petition or on behalf of a third person.
Under what conditions?
The petitions presented to the Commission must:
- Have exhausted all available domestic legal remedies, or show the impossibility of doing so, as provided in Article 31 of the Rules of Procedure of the Commission (Article 46 of the Convention);
- Be presented within six months after the final decision in the domestic proceedings. If domestic remedies have not been exhausted, the petition must be presented within a reasonable time after the occurrence of the events complained about (Article 32 of the Rules of procedure).
Process and outcome
Once the Commission receives a complaint, petitioners are notified.
If the case is deemed admissible, the Commission issues an express decision to that effect (usually published). The parties are asked to comment on their respective responses.
In this process, the Commission may carry out its own on-site investigations, hold a hearing and explore the possibility of a “friendly settlement”.
In the proceedings of individual petitions, the Commission can also receive support from the Rapporteurs of the Inter-American system.
The Commission can also take precautionary measures “on its own initiative, or at the request of a party […] to prevent irreparable harm to persons, or to the subject matter of the proceeding in connection with a pending petition or case”. 28 This means that any person, group or NGO legally recognized in any of the OAS Member State can ask for precautionary measures to the Commission, independently of any pending petition or case. 29 However, it is important for NGOs filing a request to first obtain the consent of the potential beneficiaries, as this is one of the elements the Commission will be looking for. 30 The rules of procedure of the Commission also state that the Commission can grant precautionary measures of a collective nature, and may establish mechanisms to ensure the follow-up of these measures. 31
When the Commission finds one or more violations, it prepares a preliminary report that it transmits to the state, with a deadline to respond detailing its progress on implementation of the Commission’s recommendations. 32
The Commission then prepares a second report with a new period of time granted to the State concerned. Upon the expiration of this second period of time, the Commission will usually publish its report.
In cases where the Commission considers that the state has not complied with its recommendations, and when a state has accepted the jurisdiction of the Inter-American court of Human Rights (Article 62 of the American Convention), the Commission may submit its merits report, i.e. file a case, to the Inter-American court of Human Rights (Article 34 of the Rules of Procedure of the Court).
Prior to doing so, the Commission will give one month to the petitioner to say if he or she agrees with submitting the case to the Court. If the petitioner agrees, he or she will have to give the position of the victim, or the victim’s family members if different from that of the petitioner; personal data; reasons why the petitioner agrees, as well as claims for reparations and costs. 33
To complement its advocacy mission in the region, the IACHR may also release thematic reports based on the work of its different Rapporteurships. For example, in its 2019 Report on Corruption and Human Rights, the IACHR presented an analysis of corruption from a human rights perspective and in light of inter-American standards. In this context, the Commission points out that businesses, as private actors, can play an active role in the fight against corruption and its effects on the human rights of vulnerable populations. Similarly, the Commission refers to the UN General Comment 24 on States’ obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (see above), and to the UN Guiding Principles on Business and Human Rights as applicable in this particular context 34 .
The IACHR in action in corporate-related Human Rights abuses
The Commission has, at various times, adopted decisions addressing states’ duty to protect individuals from business activities. The vast majority have focused on cases threatening or violating indigenous peoples’ right to land, (the most well known case being the Yanomami case (see below). Most recently, the Commission has gone further and has delivered interesting decisions regarding corporate activities that address other economic, social and cultural rights, and which present interesting reparations measures. 35
Yanomami indigenous people v. Brazil
The Yanomami case involved the construction of the trans-Amazonian highway, BR 210 (Rodovia Perimentral Norte), and its impact on the Yanamomi indigenous peoples. This state run project allegedly violated their rights to land contained in article XXIII of the American Declaration, 36 as well as their right to cultural identity (Article XXVI).
The Commission ruled that the reported violations had “their origin in[:]
- The failure to establish the Yanomami Park for the protection of the cultural heritage of this Indian [sic] group;
- In the authorization to exploit the resources of the subsoil of the Indian territories;
- In permitting the massive penetration of outsiders carrying various contagious diseases into the Indigenous peoples’ territory, that has caused many victims within the Indian community, and in not providing the essential medical care to the persons affected; and finally,
- In proceeding to displace the Indians from their ancestral lands, with all the negative consequences for their culture, traditions, and costumes”. 37
The Commission recognized the violation of the following rights enshrined in the American Declaration of the Rights and Duties of Man: the right to life, liberty, and personal security (Article I), the right to residence and movement (Article VIII)) and the right to the preservation of health and to well-being (Article XI).
The Commission issued recommendations to the Government of Brazil, including preventive and curative health measures to protect the lives and health of the Yanomani, as well as their right to be consulted in all matters of their interest.
Mercedes Julia Huenteao beroiza et al v. Chile
On December 5, 1993, the state-owned company Empresa Nacional de Electricidad S.A. (ENDESA) received approval for a project to build a hydroelectric plant in Ralco, where the members of the Mapuche Pehuenche people of the Upper Bio-Bio sector in Chile live. The community opposed the project but the construction of the dam started in 1993.
In 2002, the Mapuche submitted a petition before the Commission alleging violations of their rights to life (Article 4 of the American Convention), personal integrity (Article 5), judicial guarantees (Article 8), freedom of religion (Article 12), protection of their family (Article 17), property (Article 21) and right to judicial protection (Article 25) by the implementation of the state run plant project by ENDESA. The petitioners also made a request for precautionary measures “to prevent the company from flooding the lands of the alleged victims”. 38
The Mapuche and representatives of Chile agreed to a friendly settlement agreement and transmitted the final document to the Commission on October 17, 2003, which included: 39
- Measures to improve the legal institutions protecting the rights of indigenous peoples and their communities: constitutional recognition of the indigenous peoples that exist in Chile and ratification by Chile of ILO Convention 169;
- Measures to foster development and environmental conservation in the Upper Bio Bio Sector;
- Measures to satisfy the private demands of the Mapuche Pehuenche families concerned with respect to lands, financial compensation, and educational need.
As mentioned before, any person, group or NGO legally recognized in any of the OAS Member States can ask the Commission for precautionary measures, which normally tends to grant them in cases threatening the right to life and to personal integrity, indigenous peoples’ rights, land rights, child rights and the right to health. 40 Unfortunately, as illustrated by three of the four cases below, countries do not always comply with measures directed by the Commission, which further highlights the need to pursue lobby and advocacy activities around measures taken to ask for state’ compliance. Upon non-compliance by the state, the Commission can turn to the Court to ask for provisional measures (see the Sarayaku case below).
Ngöbe Indigenous Communities et al., v. Panama
On June 18, 2009, the Commission granted precautionary measures for members of the indigenous communities of the Ngöbe people, who live along the Changuinola River in the province of Bocas del Toro, Panama.
The request for precautionary measures details how, in May 2007, a 20-year concession was approved for a company to build hydroelectric dams along the Teribe-Changuinola River, in a 6,215-hectare area within the Palo Seco protected forest. It adds that one of the dams has authorization to be built is the Chan-75, which has been under construction since January 2008, and is set to flood the area in which four Ngöbe indigenous communities have been established – Charco la Pava, Valle del Rey, Guayabal, and Changuinola Arriba. These four communities have a combined population of approximately 1,000 people. Another 4,000 Ngöbe people would also be affected by the construction of the dam. They allege that the lands affected by the dam are part of their ancestral territory, and are used to carry out their traditional hunting and fishing activities. 41
The Commission called on the government of Panama to suspend construction until a final decision regarding the petition 286/08 has been adopted, as well as to guarantee the personal integrity and freedom of movement of the Ngöbe inhabitants in the area. On June 29, 2009, the government of Panama informed the Commission that it did not intend to comply with its request. 42
Community of la Oroya v. Peru
On August 31, 2007, the IACHR granted precautionary measures in favour of 65 residents of the city of La Oroya in Peru, for the impacts caused by the metallurgical complex operated by Doe Run Peru (DRP). DRP is a subsidiary of the American company Doe Run, owned by the Renco Group. Studies conducted have indicated that the communities suffer from a series of health problems stemming from high levels of air, soil and water pollution in the community of La Oroya, which are a result of metallic particles released by the Doe Run company established there. Despite improvements announced by the company, contamination problems continue. At the end of 2009, the Minister of Energy and Mines approved a new rule which extends to 30 months the delay under which the company has to comply with the “Plan for environmental management and adjustment” (PAMA), which includes the reduction of toxic emissions. 43
The case has been under consideration by the Inter-American Commission since August 2009. In March 2010, the Commission held a hearing on the implementation of precautionary measures. Here, NGOs reiterated the gravity of the situation and the failure to respect precautionary measures on the part of the state.
At the national level, the Peruvian Supreme Court rendered a decision in favour of the State against Doe Run on 2 August 2014. It ordered the payment of $163 million by the company to the Peruvian Ministry of Energy and Mining. This sum reflected the financing needed by the government to build a facility able to reduce the contamination resulting from the operations of the metallurgical complex. 44
NGOs, including FIDH and its member organisation in Peru, 45 continue to denounce delays in implementing precautionary measures for victims of Doe Run pollution. These measures form part of the States’ obligation to provide medical attention to those affected, whose health continues to deteriorate. 46
Indigenous communities of the Xingu River Basin v. Brazil
Precautionary measures were granted by the Commission on 1 April 2011 to protect the indigenous communities of the Xingu River Basin from the harmful impacts of the construction of the Belo Monte hydro-electric dam on their lives and the environment. The construction was being carried out by Norte Energia SA, a consortium state-owned and private companies. The implementation of this project would displace 20,000 people and flood of 500 square kilometres of rain forest and agricultural land.
The Brazilian government was asked by the Commission to suspend the construction project as long as certain minimum conditions were not fulfilled. These conditions included obtaining free, prior and informed consent from the indigenous peoples whose lives would be affected by the project, providing effective information about the project’s consequences, and protecting the lives and physical integrity of indigenous people. On 29 July 2011, the Commission decided to give an other orientation to the precautionary measures, asking the Brazilian government to mitigate the impact of the hydro-electric dam construction on the lives of the indigenous communities, including the protection of their ancestral lands from intrusion and occupation by non-indigenous people. 47
None of the precautionary measures taken by the Commission were taken into account by the Brazilian government. Instead, a loan of approximately US$10.8 billion was approved on 26 November 2012 by the Brazilian National Development Bank (BNDB) for the construction of the Belo Monte hydro-electric dam. 48 The project continues to face strong opposition from those affected and civil society groups. NGOs, and even some national authorities, continue to accuse the consortium of breaching agreements for the construction of Belo Monte by occasioning the perpetration of Human Rights abuses against indigenous people and the population in general. 49
In December 2015, the United Nations Working Group on Business and Human Rights visited Altamira, the city closest to the Belo Monte dam project where they met with affected groups. On December 16th 2015, they issued a statement urging the Brazilian government to respect Human Rights. 50 A final Report was presented to the Human Rights Council in June 2016 calling for Brazil’s action to address concerns about undue corporate influence on regulatory and policymaking processes, including in relation to improper corporate lobbying and political financing. 51
On January 11th 2016 the federal Tribunal of Altamira ordered the suspension of the operation of the Belo Monte dam. In 2015, the Public Ministry had issued an injunction for the fulfilment of the obligation to restructure the Funai (National Indian Foundation) as stated in the 2010 licence agreement authorising the operation of Belo Monte dam. The non-respect of this injunction led in part to the judicial decision of 2016. 52
Since the concession of the first licence in 2010, instead of being reinforced, Funai has been weakened. It continues working without having its own headquarters and the number of employees has recently been reduced from 60 employees in 2011 to 23 in 2016. Under these circumstances it is clearly impossible for the Funai to adequately respond to the demands of the indigenous peoples affected by the project. 53
In its January 2016 decision, the judge suspended Belo Monte’s license and ordered halting the filling of the reservoir within five days. He stated that activities shall remain suspended until the Belo Monte construction company Norte Energia and the government of Brazil complied with their obligation to protect the affected indigenous peoples, and facilitated the restructuring of Funai in Altamira and provided it with the necessary funding and personnel to support the demands of the community. In addition, the judge ordered fine of $ 900,000 to Union and Norte Energia, for breach of the court order.
However, there have been complaints regarding the lack of compliance with these judicial decisions as well as allegations that despite these, operations are continuing at the dam.
Marco Arena, Mirtha Vasquez and others v. Peru 54
The Yanacocha mine is a gold mine located in the Peruvian region of Cajamarca. It is run by NewMont, the largest US-based mining company. Allegations against the company for environmental contamination and community fears have led to various protests, intimidation, violence and fatal confrontations between pro- and anti-mining groups.
On 23 April 2007, the Commission granted precautionary measures in favour of priest, Marco Arana; attorney, Mirtha Vásquez, and other members of the “Group of Integral Education for Sustainable Development” (GRUFIDES), an organisation assisting intimidated and threatened peasant communities in the region of Cajamarca.
The Commission asked the Peruvian State to “adopt the measures necessary to guarantee the life and personal integrity of the beneficiaries, verify the effective implementation of the measures of protection by the competent authorities, provide perimeter surveillance for the headquarters of the NGO GRUFIDES, provide police accompaniment to the GRUFIDES personnel, who must travel to the peasant communities, and report on the actions taken to investigate judicially the facts that gave rise to the precautionary measures”. 55 The Commission continues to monitor the beneficiaries’ situation.
In March 2009, the company released an independent report on community relationship management practices. Furthermore, following allegations of the implication of its security forces in confrontations and complaints by Oxfam America, the company agreed to review its policies and procedures on security and Human Rights. A mediation process was conducted under the auspices of the Voluntary Principles on Security and Human Rights. An independent review was published in June 2009. Oxfam America calls on the company to fully implement the recommendations made. 56 Protests from affected villages continue, notably to reclaim their right to access water. 57