My name is Laura Chaparro and I'm a student enrolled in the Master of Human Rights.
In the following, I will present a summary of research on possible human rights holders
in the Inter-American human rights system.
First of all, we want to outline the historical and political circumstances which are campaigning
the emergence of the Inter-American human rights system.
After World War II, there was a global need to re-establish the Jewish National Imperatives,
especially due to the horrible violations of human rights committed by the Nazis.
As a result, the OAS concluded its charter in 1948.
Unfortunately, after the conclusion of the Charter of the Organization of American States,
the enthusiasm towards creating a human rights system stagnated for about 10 years.
Major political unrest accompanied by human rights violations, for example the Cuban Revolution,
or the Bay of Pigs Invasion, led to a re-evaluation in regards of human rights protection in the
Americas.
In this context, the Inter-American Court of Human Rights was first aimed at investigating
the violations of human rights during the Cuban Revolution.
Also, under these circumstances, individuals or certain groups of people, such as indigenous
people, probably seemed more vulnerable and affected by human rights violations than,
for instance, legal persons like companies.
Finally, another decade went by and the American Convention of Human Rights was concluded in
1969.
Concerning the concept of human rights holdership under the American Convention, the document
itself offers a quite precise wording.
In its preamble, it speaks of the rights of men and attributes its protection to the human
personality.
Its article 1.2 explicitly states that, for the purpose of this convention, person means
every human being.
When it comes to petitions, however, article 44 prescribes that petitions with the Commission
can be lodged by any person or group of persons or any non-governmental entity legally recognized
in one or more organizations.
It becomes apparent, from the wording of the Convention itself, that there is an distinction
between who can hold human rights and who has standing to initiate proceedings before
the Commission in the Inter-American human rights system.
Considering the approach of the Inter-American Commission first, this distinction continues
to be of crucial importance.
The Commission has pointed out that petitioner and victim are two different concepts in the
Inter-American system.
It thus considered the victim status to be preserved for natural persons, consequently
excluding juridical persons or legal entities.
With regards to article 44, it found private juridical persons to be encompassed with the
notion of non-governmental entity legally recognized.
This means that, while companies cannot claim their own human rights, they do have a standing
to lodge petitions with the Commission.
The Inter-American Court has addressed the question of human rights holdership in a recent
advisory opinion of 2016, which was requested by Panama.
It reiterated, in line with the explicit wording of the Convention, that legal entities generally
do not enjoy the rights of the Convention.
Nevertheless, the Court also found exceptions concerning indigenous as well as tribal communities
on the one hand, and trade unions, federations, and confederations on the other.
The latter had afforded to have the same rights as natural persons under the Protocol of St.
Salvador.
Taking into account the approaches of both the Court and the Commission, the Inter-American
system has developed a quasi-derivative rights approach, with relation to legal entities.
Because natural persons must be afforded protection under the Convention, this applies also if
they are exercising their rights via a legal entity.
The Court has repeatedly protected the rights of individuals behind a company in such instances.
Thus, whenever individuals seek to assert rights connected to the activities of a legal
entity, in particular property rights, or the freedom of association or expression,
they have direct access to the protection system.
This direct relationship between natural persons holding human rights and juridical persons
through which such rights may be exercised is determined on a case-by-case basis, and
cannot be measured by a single formula.
Legal entities are, however, also capable of fulfilling the requirement of exaltation
of legal remedies according to Article 46 before claims are brought before the Inter-American
system.
Regarding the people as rights holders, the Inter-American Court of Human Rights has advanced
the protection of indigenous peoples in a series of cases by applying a principle that
recognizes individual beings as international legal subjects endowed with diverse cultural
backgrounds.
The Inter-American system recognizes people as possible rights holders, especially in
the form of indigenous communities and tribal communities.
There are several cases concerning actions taken by indigenous or tribal people, such
as the case of the Kichaw people of Sarayaku, the case of the Yaqui-Axios indigenous community
versus Paraguay, and the case of the indigenous communities of the La Cajunat Association
versus Argentina.
There are two living cases concerning actions taken by indigenous or tribal peoples, one
of them is the case of the Saramaca people versus Suriname, where the presumed alleged
violations committed by the state against a member of the Saramaca people, an alleged
tribal community living in the upper Suriname River region.
The Commission alleged that the state has not adopted effective measures to recognize
their right to use and enjoyment of the territory they have traditionally occupied and used,
and the state has allegedly violated the right to judicial protection to the detriment of
such people by not providing them effective access to justice for the protection of their
fundamental rights, particularly their right to own property in accordance with their communal
traditions, and by doing so, the state has failed to adopt domestic legal provisions
in order to ensure and guarantee such rights to these indigenous people.
The second case is the case of the Kalinia and Locano peoples versus the Republic of
Suriname.
This case relates to the international responsibility of the state for a series of violations of
the rights of the members of eight communities of the Kalinia and Locano indigenous people,
especially owing to the absence at this time of a legal framework that recognizes the legal
personality of the indigenous peoples.
This means that, to the date of the judgment, the Kalinia and Locano peoples have not received
this recognition.
In addition, the state has not established a legal and recollectory framework that would
permit recognizing the right to collective ownership of the lands, territories, and natural
resources of the Kalinia and Locano indigenous peoples.
In this judgment, the court reiterated that the right to communal property must be read
together with the right to self-determination.
The court concluded that these tribal communities had the right to the collective territory,
and the state has the obligation to adopt special measures to recognize, respect, protect,
and guarantee this right.
Regarding these two cases, the court emphasized the control aspect of indigenous property
rights, relating it to the territorial resource sovereignty aspect of the right to self-determination.
By the virtue of the right to self-determination, indigenous people may freely pursue their
economic, social, and cultural development and may freely dispose of their natural wealth
and resources to ensure that they are not deprived of their own means of subsistence.
The support and interpretation of Article 21 of the American Convention that requires
recognition of the rights of the members of indigenous and tribal communities to determine
and enjoy their social, cultural, and economic development.
There are three categories of rights that were granted.
The first, collective rights, including property rights, the right to participate in relation
to projects or works on communal property, the right to self-determination, and the right
to cultural identity.
We also found procedural rights such as the right to prior and informed consent, rights
of consultation and participation, and finally, the so-called Norman Individual Rights, which
are also granted to citizens, including the right to state protection, the right to access
to justice, and the right to participate in government.
In conclusion, the protection system of the American Convention of Human Rights is centered
around the individual human being.
Consequently, companies as such cannot be holders of human rights under the Convention
themselves.
Nevertheless, the Convention facilitated the development of a distinctive case law concerning
the protection of the people in the form of collective rights.