Inter-American Court Advisory Opinion Analyzes Rights of Legal Entities

The Inter-American Court of Human Rights
Credit: IACtHR

The Inter-American Court of Human Rights (IACtHR) has, at Panama’s request, published an advisory opinion concerning the rights of legal entities, particularly whether the American Convention on Human Rights protects the rights of trade unions, cooperatives, associations, and companies, or whether the American Convention on Human Rights’ definition of “person” is limited to human beings. See I/A Court H.R., Titularidad de Derechos de las Personas Juridicas en el Sistema Interamericano de Derechos Humanos, Advisory Opinion OC-22/16, 26 February 2016 (in Spanish). The IACtHR focused on four major topics in addressing Panama’s inquiries. It considered the rights of legal entities within the Inter-American human rights system, the specific rights of indigenous and tribal organizations and trade unions, human rights protections for natural persons in connection to legal entities, and exhaustion of domestic remedies by legal entities in order to have recourse to the Inter-American System. See I/A Court H.R., Advisory Opinion OC-22/16, at para. 27. The Court found that while legal entities do not hold the same rights as natural persons under the American Convention, certain entities – specifically, trade unions, tribal and indigenous organizations, and individuals connected to legal entities – do have rights under the Convention and may petition the Inter-American System when those rights are allegedly violated. See id. at paras. 67-70, 82-84, 97-105, 119-120. The Court’s opinion is in keeping with international human rights standards that legal entities are not considered persons with rights and direct access to individual complaint systems. See id. at para. 62, 67.

Rights of Legal Entities within the Inter-American System

The Inter-American Court found that legal entities, generally, do not enjoy the rights established under the American Convention and do not have direct access to the Inter-American System. See I/A Court H.R., Advisory Opinion OC-22/16, at para. 67. In arriving at this conclusion, the IACtHR analyzed the phrase “’person’ means every human being” of Article 1(2) of the American Convention, focusing on methods of interpretation as established by the Vienna Convention on the Law of Treaties. See id. at paras. 34-35. The IACtHR considered the plain meaning of the term “person,” its meaning in the context of the American Convention and in light of the object and purpose of that treaty, and interpretations of the term in different international systems. See id. at paras. 34-36. The plain meaning of the term and the object and purpose of the treaty, the IACtHR concluded, did not support a finding that legal entities hold the same rights as natural persons under the American Convention.

Additionally, the IACtHR explained that there is no clear tendency in international human rights law to provide legal entities the same rights as natural persons or allow legal entities to access individual petition systems under a victim status. See id. at paras. 37-67. The IACtHR looked at jurisprudence from the Inter-American, European, and African regional human rights bodies, and the universal system of human rights. See id. at paras. 50-62. Finding that the majority of international human rights protections (with the exception of the European Court of Human Rights, which allows non-governmental organizations to bring complaints as direct victims, and the International Convention on the Elimination of All Forms of Racial Discrimination, which recognizes a right of organizations to be free from discrimination) and the majority of States parties’ domestic legislation do not consider legal entities “persons,” the IACtHR concluded that legal entities cannot be considered victims within the framework of the Inter-American System’s contentious proceedings. See id. at paras. 53, 60, 62, 67.

Indigenous and Tribal Organizations

Notwithstanding the fact that the Advisory Opinion did not interpret Article 1(2) of the American Convention so that it applies to legal entities, the IACtHR reiterated its jurisprudence establishing that the American Convention provides certain protections to groups of people, namely, indigenous communities and tribal organizations. See id. at paras. 80-84. As such, these groups have direct access to the Inter-American System, unless the circumstances of a case make it necessary for each and every individual to present a complaint. See id. at paras. 80-84.

Trade Unions

With regard to the object and purpose of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador” (Protocol of San Salvador), the IACtHR stated that the Protocol of San Salvador affords trade unions the same rights as natural persons, at least with respect to Article 8(1), which allows trade unions to establish national federations and confederations. See id. at paras. 95-100. The IACtHR first found that Article 8(1) was ambiguous regarding what rights apply to trade unions and used the same methods of interpretation it used when examining the meaning of “persons” and the rights of legal entities. See id. at para. 88. It focused Article 8(1)’s requirement that States parties ensure workers’ right to organize and join trade unions and, “[a]s an extension of that right,… permit trade unions to” establish or affiliate with national and international trade union organizations. See id. at paras. 88-89.

The IACtHR concluded that the plain meaning of the term “permit” presupposes that trade unions constitute legal entities, separate from their members and with different capabilities to exercise rights. See id. at paras. 88-91. Further, it noted that the phrase “[a]s an extension of that right,” allows workers more expansive protections than simply organizing and affiliating with trade unions. See id. at para. 92. The IACtHR also referenced the English translation of the header of Article 8, which is “Trade Union Rights,” and Article 45(c) of the Charter of the Organization of American States, which specifically recognizes the rights of workers’ associations. See id. at paras. 93-95.

The IACtHR affirmed that the rights established in Article 8(1) allow trade unions access to the Inter-American System to defend their rights. To the extent that States have ratified the Protocol of San Salvador, trade unions may access the Inter-American System’s protections in the same manner as natural persons. See id. at paras. 95-103.

Human Rights Protections for Natural Persons as Members of Legal Entities

The Advisory Opinion establishes that natural persons must be afforded the same protections under the American Convention, even if they are exercising their rights via a legal entity. See id. at para. 110. For example, an individual who is seeking to assert rights connected to the activities of a legal entity, such as property rights or the right to freedom of association or freedom of expression, may access the Inter-American System directly. See id. at paras. 110, 115. The IACtHR explained how restrictions to the right to freedom of expression affecting a legal entity, like a media company, may also have an impact on natural persons, like journalists and viewers, allowing the IACtHR to consider whether the victims were exercising their rights via the media company. See id. at para. 117. For example, in a case concerning the Radio Caracas Television (RCTV) television station in Venezuela, the Court analyzed whether the State restrictions on the station had concretely, substantially, and negatively impacted the rights of its staff and leadership by examining the role that each individual played within the institution and his or her contribution to the channel’s mission. See id. (citing I/A Court H. R., Granier et al. (Radio Caracas Television) v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 22, 2015. Series C No. 293. ) The IACtHR emphasized that there is no single formula to determine whether a natural person is exercising his or her rights via a legal entity, rather each case must be analyzed individually. See id. at paras. 119-120.

Exhaustion of Domestic Remedies by Legal Entities

The IACtHR found that legal entities may fulfill the requirement of exhausting domestic remedies for the purposes of admissibility of an individual complaint if the domestic proceedings relate to the allegations made before the Inter-American System. The admissibility requirements in Article 46(1)(a) of the American Convention, the Court stated, do not distinguish between legal entities or natural persons; rather, they focus exclusively on the exhaustion of domestic remedies. See id. at paras. 133-137.The Advisory Opinion clarified that the focus of its analysis in specific cases will be based on whether the available domestic remedies are suitable and effective, independent of whether they were pursued by a natural person or a legal entity. However, the complainant must demonstrate a connection between the claims the legal entity alleged during the domestic proceedings and the alleged human rights violations before the Inter-American System. See id. at para. 136.

Existing International Standards on Legal Entities

Panama’s request to the IACtHR was a reflection of various States’ concerns over the rights of legal entities within the Inter-American System. Guatemala, Colombia, Argentina, El Salvador, Bolivia, and Honduras all submitted observations to the IACtHR in reference to Panama’s request. See Inter-American Court of Human Rights, Observaciones a la Solicitud de Opinión Consultiva. The Inter-American Commission, since the early 1990s, had begun to interpret Article 1(2) of the American Convention on Human Rights as including only natural persons. See, e.g., IACHR, Merits Report No. 10/91, Case 10.169, Banco de Lima v. Perú, 22 February 1991, para. 1; IACHR, Merits Report No. 39/99, Mevopal, S.A. v. Argentina, 11 March 1999, para. 17. Yet, the States expressed their concern over the Inter-American Commission, and not the IACtHR, being the only one to consider the issue.

Although the Inter-American Court did not explicitly rely on all these sources in its opinion, jurisprudence from the Inter-American and the European human rights systems already supports the finding that trade unions have rights and may petition a human rights system directly. For example, in Huilca-Tecse v. Peru the IACtHR stated that “freedom of association is a mechanism that allows the members of a labor collectivity or group to achieve certain objectives together and to obtain benefits for themselves.” See I/A Court H.R., Case of Huilca-Tecse v. Peru. Merits, Reparations and Costs. Judgment of March 3, 2005, para. 71. The European Court of Human Rights (ECtHR) has also recognized that individual workers and their organizations are protected under the European Convention on Human Rights. In Wilson v. United Kingdom the ECtHR specifically stated that “[a] trade union must thus be free to strive for the protection of its members’ interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard.” See ECtHR, Wilson v. United Kingdom, nos. 30668/96, 30671/96 and 30678/96, ECHR 552, Judgment of 2 July 2002, at para. 42.

Advisory Opinions by the IACtHR

The IACtHR has adjudicatory and advisory jurisdiction. The advisory function of the IACtHR allows it to respond to requests or consultations by Member States of the Organization of American States (OAS) regarding the American Convention or other international instruments on the protection of human rights in the Americas. See American Convention, art. 64(1). The Court may also, at the request of any OAS Member State, issue an opinion on the compatibility of any of its domestic laws with regional human rights instruments. See American Convention, art. 64(2).

Additional Information

For more information about the IACtHR and the Inter-American Human Rights System, visit IJRC’s Online Resource Hub. For a summary of European Court of Human Rights cases on trade union rights and the rights of political parties and associations, see the respective factsheets.

Also note that at least one human rights body, the European Committee of Social Rights, is expressly authorized to hear “collective complaints” presented by trade unions and other groups, rather than by individuals, concerning alleged violations of the European Social Charter.