The Inter-American Court
The Inter-American Court of Human Rights was created by the American Convention on Human Rights and started its operations in 1979. The Court, based in the city of San José in Costa Rica, is an autonomous judicial institution of the OAS, whose objective is the application and interpretation of the American Convention on Human Rights and other relevant treaties. no case can be examined by the Court if a Commission decision has not already been rendered on the matter, and if the case has not been referred to the court by the Commission. nevertheless, the decisions of the Court are legally binding, unlike the recommendations of the Commission.
The Court has two main functions:
- Adjudicatory function: mechanism through which the Court determines if a State failed its international responsibility, by violating any of the rights protected by the American Convention on Human Rights. The accused State must be Party to the Convention and have accepted its contentious jurisdiction.
- Advisory function: mechanism through which the Court responds to consultations submitted by the Member States of the OAS or its bodies regarding the interpretation of the Convention or other instruments governing Human Rights in the Americas. This advisory jurisdiction is available to all OAS Member States, not only those that have ratified the Convention and accepted the Court’s adjudicatory function.
What rights are protected?
The Court’s role is to enforce and interpret the provisions of the American Convention on Human Rights, which protects a large set of rights (see above).
Who can file a complaint?
Any individual or organisation who wants to present an alleged situation of Human Rights violation must do so before the Inter-American Commission and not the court (see procedure above). If a solution is not reached, the Commission may forward the case to the Court by submitting its merits report to the Inter-American Court of Human Rights (Article 35 of the Rules of Procedure of the Court and Article 61 of the American Convention on Human Rights).
According to the new rules of procedure, the Court now appoints an attorney to assume the representation of victims that do not have legal representation, 1 therefore the Commission will no longer be in charge of this role. Victims can also request access to the Victims’ Legal Assistance Fund (see process below).
If NGOs or experts wish to submit amicus curiae to the Tribunal, then this is possible at any point during the proceedings, up to 15 days following the public hearing or within 15 days following the Order setting deadlines for the submission of final arguments. 2
Process and outcome
The cases before the Court may be filed by the Commission (Article 35 Rules of Procedure) or by a State (Article 36 Rules of Procedure).
If the application is deemed admissible, the alleged victims, or their representatives, have 2 months to present their pleadings, motions and evidence. This should include a description of the facts, the evidence, the identification of applicants and all claims made, including reparations and costs (Article 40 Rules of Procedure). It is during this stage that victims wishing to access the legal assistance fund should submit their request. Victims should, by way of sworn affidavit or other probative evidence, demonstrate that they do not have the economic resources to cover the cost of litigation. They should specify for which part of the proceedings they will need financial support. 3
Then the State has 2 months to respond, stating whether it accepts or disputes the facts and claims (Article 41 Rules of Procedure). Once this answer has been submitted, any of the parties in the case may request the Court president’s permission to lodge additional pleadings prior to the commencement of the oral phase. (Article 43 Rules of Procedure). During the oral phase, the Court hears witnesses and experts and analyses the evidence presented prior to issuing its judgement.
In addition to these two functions, the Court may take provisional measures in cases of “extreme gravity and urgency, and when necessary in order to avoid irreparable damages to persons” (Article 27 of the Rules of Procedure). If there is a case pending before the Court, victims or alleged victims, or their representatives, can submit a request provided that it is related to the subject matter of the case. 4
Regarding its adjudicatory function, the Court renders judgements which are binding, final and not subject to appeal. However, there is a possibility for any of the parties to request an interpretation of the judgement after it has been delivered (article 68 of the Rules of Procedure).
The Court periodically informs the OAS General Assembly about the monitoring of compliance with its judgements. This task is mostly performed through the revision of periodic reports forwarded by the State and objected by the victims (article 69 of the Rules of Procedure).
The court in action in corporate-related Human Rights abuses
On several occasions, the Court has issued decisions in corporate-related cases, in particular granting provisional measures. 5
Saramaka People v. Suriname 6
Between 1997 and 2004, the State of Suriname issued logging and mining concessions within territory traditionally owned by the Saramaka people, without properly involving its members or completing environmental and social impact assessments.
In 2006, the Inter-American Commission on Human Rights submitted an application to the Court against the State of Suriname, alleging violations committed against members of the Saramaka People regarding their rights to the use and enjoyment of their traditionally owned territory (Article 21) and their right to judicial protection.(Article 25). The Court addressed eight issues including “[…] fifth, whether and to what extent the State may grant concessions for the exploitation and extraction of natural resources found on and within alleged Saramaka territory; sixth, whether the concessions already issued bythe State comply with the safeguards established under international law; […] and finally, whether there are adequate and effective legal remedies available in Suriname to protect members of the Saramaka people against acts that violate their alleged right to the use and enjoyment of communal property.” 7
The Court ruled that with regards to the exploitation activities within indigenous and tribal territories, “the state must ensure the effective participation of the members of the Saramaka people, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan […] within Saramaka territory. Second, the State must guarantee that the Saramaka will receive a reasonable benefit from any such plan within their territory. Thirdly, the State must ensure that non concession will be issued within Saramaka territory unless, and until, independent and technically capable entities, with the State’s supervision, perform a prior environmental and social impact assessment.” 8
With regard to logging concessions, the Court declared that the State of Suriname did violate Article 21 of the Convention: “the State failed to carry out or supervise environmental and social impact assessments, and failed to put in place adequate safeguards and mechanisms in order to ensure that these logging concession would not cause major damage to Saramaka territory and communities. Furthermore, the state did not allow the effective participation of the Saramakas in the decision-making process regarding those logging concessions, in conformity with their traditions and customs, nor did the members of the Saramaka people receive any benefit from the logging in their territory”. 9 The Court came to the same conclusions regarding the gold mining concessions. 10
In 2007, the government ended logging and mining operations in 9000 square kilometres of Saramaka territory. 11
This case is considered a ground breaking case, as it recognized land rights for all tribal and indigenous people in Suriname, and the need to obtain prior, free and informed consent from indigenous peoples before undertaking development projects that affect them. The judgement also highlights the State’s failure to exercise due diligence. It should also be noted that the Court did not only consider the environmental costs of the projects, but also social costs and requested reparations including measures of redress (measures of satisfaction and guarantees of non-repetition) and measures of compensation (pecuniary and non pecuniary). 12
On March 17, 2008, the State filed an application seeking an interpretation of the judgement, requesting interpretation on several issues such as “with whom must the State consult to establish the mechanism that will guarantee the – effective participation’ of the Saramaka people; […]; to whom shall a “just compensation” be given […]; to whom and for which development and investment activities affecting the Saramaka territory may the State grant concessions;[…] under what circumstances may the State execute a development and investment plan in Saramaka territory, particularly in relation to environmental and social impact assessments”. 13 The Court delivered its interpretation on August 12, 2008.
This case illustrates the usefulness of the system, and its willingness to intervene over conflicts involving corporate activities. The interpretative judgement issued upon request of the State also shows how the Court can contribute to the practical implementation of the judgement, and to the prevention of similar dilemmas often observed in development projects affecting indigenous peoples.
Baena-Ricardo et al. v. Panama
The case originated before the Commission in 1998, in a complaint against the State of Panama for having arbitrarily laid off 270 public officials and union leaders, who had protested against the administration’s policies to defend their labour rights.
For its first case of violations of labour rights, the Court concluded in its judgement, of February 2001, that Panama had violated the rights of freedom of association, judicial guarantees and judicial protection. It stated that the guarantees provided by Article 8 of the Convention had to be observed in this situation, implying that the state must protect against unlawful dismissal in all type of enterprises, including public companies: “[…] There is no doubt that, in applying a sanction with such serious consequences, the State should have ensured to the workers a due process with the guarantees provided for in the American Convention.” 14
The Court decided that the State had to reassign the workers to their previous positions and to pay them for unpaid salaries. As of November 7, 2005, the State of Panama had only partially complied with the Court’s orders. 15
In 2007, workers started a hunger strike to protest against the inaction of the State. In 2007 and 2008, in collaboration with its member organisation in Panama (Centro de Capacitacion Social), and many others in the region, FIDH signed open letters calling on the government of Panama to comply with the Court decisions. 16
Claude Reyes et al. v. Chile 17
This case refers to the State of Chile’s alleged refusal to provide Marcel Claude Reyes, Sebastián Cox Urrejola and Arturo Longton Guerrero with all the information they requested from the Foreign Investment Committee on the forestry company Trillium and the Río Condor Project, a deforestation project to be executed in Chile’s Region XII.
In 2005, the Commission submitted an application for the Court to examine the allegation of a violation of the right to access information, as provided by Article 13 of the Convention, regarding a foreign investment project.
The Court ruled that Chile did violate this right, considering that when a company’s activities affect public interest, the state-held information should be publicly accessible. The Court thus decided that Chile had six months to provide the information requested, or adopt a justified decision in this respect.
Kichwa indigenous community of Sarayaku v. Ecuador
The case originated in a contract signed in 1996 between the State of Ecuador and ARCO oil company for the exploitation of 65% of Sarayaku’s ancestral territory. Since then, the exploration activities have been carried out by ARCO (US), Burlington Resources (US) and now by a private company called Argentinean Oil General Company (Compania General de Combustible- CGC). The petitioners complained about health issues related to the company’s activities, as well as harassment by military and police forces. There were also allegations regarding the use of explosive materials by the company to intimidate the Sarayaku people. 18
On June 2004, and due to the failure of the State to comply with its precautionary measures, the Commission submitted to the Court a request seeking the adoption of provisional measures on behalf of the members of the Kichwa indigenous community of Sarayaku, to protect their lives, integrity of person, freedom of movement and the special relationship they have to their ancestral land.
On July 6, 2004, the Court ordered provisional measures asking the State of Ecuador to guarantee the life and personal integrity of the Sarayaku people, and renewed such an order for provisional measures in 2005.
On 26 April 2010, the case was referred from the Inter-American Commission to the Inter-American Court after the latter had examined Ecuador’s compliance with provisional measures during an audience on 3 February 2010. On that occasion, the Court had urged Ecuador to comply with subsequent provisional measures. The Inter-American Commission founded its application for a referral of the case against Ecuador on the State’s failure to engage in prior consultation with the Kichwa people of Sarayuku before authorising oil exploration and exploitation on their territory.
On 1 October 2014, the Inter-American Court ruled in favour of the Kichwa people of Sarayuku, underlining the significance of the principle of free, prior and informed consent (FPIC). The Court considered the fact for the Ecuadoran State to have allowed the exploitation of the Sarayaku peoples’ ancestral land by oil companies without having effectively informed them and ensured a genuine consultation and participation process constituted a violation of this principle enshrined in several international Human Rights instruments.
Norín Catrimán et al. v. Chile
This is the first time the Inter-American Court condems a state for unduly criminalising indigenous leader for social protest in Latin American democratic regime.
The Mapuche case concerns the Araucanía and Bío Bío regions in Chile. Following Pinochet’s military dictatorship, given the transitional government’s failure to comply with its reform commitments for a new deal with indigenous communities, the Courts’ repeated denials to recognise the property titles held by somr Mapuche, and the impact of forest, hydroelectric, and road investment projects pursued by the transitional government without going through consultation procedures, the Mapuche responded by organising activities to defend their rights. These events included marches, roadblocks, demonstrations, hunger strikes, the occupation of lands claimed by indigenous communities, protests against forestry operators, and criticism of the authorities and of government policies. At some of these events, there were scenes of sporadic violence during which private property was damaged, in particular to that of large forestry operators.
Chilean criminal courts considered the protest actions of the Mapuche indigenous communities as terrorist acts, and applied anti-terrorist legislations against several members of the communities. Among them, two leaders of the Mapuche Peoples were condemned to long prison sentences for “terrorist threat” and 5 others for “terrorist arson” respectively in 2002 and 2003. 19
The case was submitted by the Inter-American Commission to the Inter-American Court on 7 August 2011 for alleged violation of several provisions of the American Convention on Human Rights, such as the right to a fair trial (article 8), the principle of legality (article 9), the freedom of thought and expression (article 13), the right to participate in government (article 23), and the right to equal protection and non-discrimination (article 24). 20
The violation of all these rights was established by the Inter-American Court through a decision issuedon 29 May 2014. 21
The Court condemned the Chilean State because the sentences it issued against the Mapuche for the alleged crimes were based on an antiterrorism piece of legislation which violates the principle of legality and the right to the presumption of innocence. The court underlined that in defining terrorist crimes, the rule of law imposes a necessary distinction between those crimes and ordinary offenses.
The Inter-American Court also held that the sentences were based on stereotypes and prejudices, in violation of the principles of equality and non-discrimination and that they could constitute a violation of the freedom of expression and have an inhibiting impact on the whole mapuche people. Additionally, the Court found that the trial in Chile violated due process requirements. All these combined elements demonstrate that these convictions were arbitrary and incompatible with the American Convention.
FIDH, who represented five of the eight claimants along with two other attorneys, welcomed this significant decision of the Inter-American Court of Human Rights, as a Landmark case that could bring legal support to the numerous indigenous and Human Rights defenders that are unduly criminalised in order to silence their claims.
Mayagna (sumo) Awas Tingni Community v. Nicaragua 22
In this case the Court concluded that Nicaragua had violated the right to judicial protection and to property.
The case relates to the Mayagna Awas (Sumo) Tingni Community who lives in the Atlantic coast of Nicaragua. They had lodged a petition before the Commission alleging the State’s failure to demarcate communal land, to protect the indigenous people’s right to own their ancestral land and natural resources, and to guarantee access to effective remedy regarding the then imminent concession of 62,000 hectares of tropical forest to be exploited by Sol del Caribe, S.A. (SOLCARSA) on communal lands.
The Commission concluded that “the State of Nicaragua is actively responsible for violations of the right to property, embodied in Article 21 of the Convention, by granting a concession to the company SOLCARSA to carry out road construction work and logging exploitation on the Awas Tingni lands, without the consent of the Awas Tingni Community. 24
In addition, the Commission recommended the state “suspend as soon as possible, all activity related to the logging concession within the Awas Tingni communal lands granted to SOLCARSA by the State, until the matter of the ownership of the land, which affects the indigenous communities, [has been] resolved, or a specific agreement [has been] reached between the State and the Awas Tingni Community”. 25 The Commission subsequently decided to submit the case to the Court on May 28, 1998.
The Court noted that the right to property enshrined in the Convention protected the indigenous people’s property rights originated in indigenous tradition and, therefore, the State had no right to grant concessions to third parties on their land.
It should be noted that the Court decided that the State had to adopt the necessary measures to create an effective mechanism for demarcation and titling of the indigenous communities’ territory, in accordance with their customary law, values and customs. The Court also decided that, until such mechanism was created, the State had to guarantee the use and enjoyment of the lands where the members of the indigenous community live and carry out their activities. 26 Finally, the Court asked the State to report every six months on measures taken to ensure compliance with their judgement. 27
In January 2003, the community filed an amparo action (protection of constitutional rights) against President Bolaños, and ten other high ranking government officials, because the decision had not been enforced. This action has not been resolved yet. In January 2003, the Nicaraguan National Assembly passed a new law aimed at demarcating indigenous land. Awas Tingni could be the first community to obtain land titles under the new law. On Sunday 14 December 2008, “the government of Nicaragua gave the Awas Tingni Community the property title to 73,000 hectares of its territory, located on the country’s Atlantic Coast.” 28
In this case the Inter-American Court, for the first time, issued a judgement in favour of the rights of indigenous peoples to their ancestral land. It is a key precedent for defending indigenous rights in Latin America.
Operationalisation of the UNGPs through the Inter-American Court decisions
In its 2015 landmark decision in Kaliña and Lokono Peoples v. Suriname, the Inter-American Court of Human Rights, ’took note’ of the UNGPs, and recalled that the UNGPs “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”. Hence, as reiterated by these principles, “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication 29 ”. This is the first decision ever of a regional human rights Court that expressly cites the UNGPs as the main international standard in this area and invokes its principles for some of its decisions.
2017 Advisory Opinion OC-23/17 Environment and Human Rights
In March 2016, Colombia submitted a request for an Advisory Opinion before the Inter-American Court in which it formulated questions regarding the obligations of the States Parties to the ACHR in environmental matters in the context of the protection and guarantee of the rights to life and personal integrity. The Inter-American Court was asked to determine how the ACHR should be interpreted concerning certain environmental treaties, such as the 1983 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, known as the "Cartagena Convention".
The Court considered that it was not appropriate to limit its response to the scope of that particular treaty, since "the issues raised in the application go beyond the interests of the States Parties to the Cartagena Convention and are of importance to all States of the world 30 The Court also decided not to restrict its opinion to the marine environment alone, but to take into account the environment as a whole for the protection of human rights.
In its Opinion, the Court concludes that States must prevent environmental damage in and outside their territory (the latter in relation to activities within their territory or under their control that may cause environmental damage in the territory of other states), require environmental impact studies as well as mitigation and contingency plans for potential environmental damages. The Court also establishes that States must cooperate with other states, apply the precautionary principle when there is a risk of serious and irrevocable environmental degradation to protect the rights to life and personal integrity, and provide information, allow public participation and guarantee access to environmental justice 31 .
The Court also recognizes the right to a healthy environment as an autonomous human right 32 . Although it is already protected under the Protocol of San Salvador, the Court establishes that this right is also protected under article 26 of the ACHR because this norm protects the rights derived from the economic, social, educational, scientific and cultural provisions of the OAS Charter, the American Declaration of the Rights and Duties of Man and those resulting from an interpretation of the ACHR that accords with the criteria of interpretation standards established in its article 29 33 . This interpretation of the Court was previously adopted in the 2017 case Lagos del Campo v. Peru (see above) and suggests that it may serve as a pathway for environmental lawsuits to be brought before the Inter-American Court in the future.
This Advisory Opinion is of enormous importance to all countries in the region as it constitutes one of the first opportunities for the Court to refer broadly to the obligations of States arising from the need to protect the environment under the American Convention.
The reasoning of the Inter-American Court in this Advisory Opinion was applied for the first time in the recent 2020 Lhaka Honhat v. Argentina case discussed below.
Lhaka Honhat (Our Land) vs. Argentina, 2020
Lhaka Honhat is an association made up of 132 indigenous communities belonging to different villages located in the Argentinean province of Salta, near the border with Bolivia and Paraguay. It was established to obtain a collective title to an ancestral territory of 400,000 hectares. This territory was occupied at the beginning of the 20th century by criollo populations (non-indigenous settlers) who developed commercial activities which had a severe environmental impacts, such as illegal logging and cattle raising. These activities contribute to the desertification and loss of natural resources of the area. Furthermore, to carry out these activities, the criollos prevented the members of Lakha Honhat from passing through the territory, as well as from accessing watercourses and traditional food. Although this has been a domestic legal claim since 1991, the measures taken by the Argentine state have not been sufficient to protect the rights of the members of Lhaka Honhat.
On February 1, 2018, the IACHR submitted the case against the State of Argentina to the Court, alleging the violation of the rights to property, cultural identity, a healthy environment, water, adequate food, and other rights of the members of Lhaka Honhat. In its judgment, the Court found Argentina responsible for these violations and ordered the State to deliver a collective title that recognized the Lhaka Honhat’s ownership of their territory. The Court also reiterated Argentina’s obligation to prevent environmental damage from the activities of private actors and ordered specific reparation measures for the violation of the rights of the Lhaka Honhat peoples. 34
This decision is remarkable for being the first in the Court’s contentious jurisdiction to declare a direct violation of the right to a healthy environment as well as the rights to adequate food, water, and participation in cultural life under article 26 of the ACHR 35 . In this, it reaffirms its reasoning previously established in its Advisory Opinion OC-23/17 of 2017 (see above). It is also significant in that it is the first time that the Court rules specifically on the violation of economic, social, cultural, and environmental rights under article 26 of the ACHR.
Although the inter-American system for the protection of Human Rights still face numerous challenges, and is under resourced and understaffed, it is recognized for its audacity as one of the regional mechanisms that has gone farther in addressing States’ responsibilities regarding violations committed by corporations. Unfortunately, and although the Court’s decisions are binding, too many judgements are not enforced. There is currently an urgent necessity for civil society and victims to widely disseminate the Court’s decisions in order to ensure greater likelihood of their implementation. The Inter-American system offers numerous opportunities for victims to actively participate in the vindication of their rights, and in raising awareness around the impacts of corporate activities on Human Rights within the system. These opportunities should be seized.