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Article d'opinion

28 Oct 2021

Auteur:
Lucas M. Mantelli, Coordinador jurídico para la oficina de Mesoamérica y México del Centro por la Justicia y el Derecho Internacional (CEJIL)

Contributions from the Inter-American Court’s judgment on the Miskito Divers case

CEJIL

The judgment on Lemoth Morris et al. v. Honduras, litigated by the Center for Justice and International Law (CEJIL) together with the Association of Disabled Honduran Miskitos Divers (AMHBLI), Mairin Indian Miskitu Asla Takanka (MIMAT), the Research and Communication Reflection Team of the Society of Jesus (ERIC-SJ) and the Legal Team for Human Rights (EJDH), is an important step forward not only in improving Miskito divers’ living conditions but also in the construction of inter-American standards concerning some matters not yet explored by the Regional Court.

The expression 'Miskito Divers' refers to an indigenous Miskito community in the Department of Gracias a Dios – located in eastern Honduras, on the Atlantic Coast – who subsists mainly through shellfish and lobster underwater fishing. This fishing activity began as a means to self-subsistence and was "breath-hold", but it gradually turned into a tank-diving extractive industry outside of any state control. It is important to emphasise that the Honduran Moskitia region is burdened with high rates of poverty, malnutrition, illiteracy, unemployment, and a lack of basic services.

Within this context, an estimated 97% of the 9,000 Miskito divers have had a health syndrome, and more than 4,000 have developed some form of disability due to the absence of state oversight of the conditions in which underwater fishing – a high-risk activity – takes place in the region. In addition, several divers have died and others are missing as a result of the unsafe conditions in which the activity takes place.

In the context of this case, an amicable settlement was reached with the State of Honduras by which it assumed its international responsibility for the violations committed. In this regard, it is of utmost importance to emphasise that the agreed reparation measures not only seek to make comprehensive reparations for the damages caused to this case’s victims and their families but also, through the guarantees of non-repetition, to improve the living conditions of all Miskito people in the region.

This precedent also provides interesting elements to inter-American jurisprudence for several reasons. It is relevant for continuing the jurisprudential line of justiciability of ESC rights and for providing new content to them. It is also relevant since it addresses the problem from a structural and intersectional discrimination perspective and, mainly, because it is the first Inter-American Court’s judgment to include standards on business and human rights.

A legal precedent for this matter can be found in the Fireworks Factory vs. Brazil case, in which the Court expressed the duty of States to regulate, supervise and oversee dangerous activities that may be carried out by private companies; however, it did not focus on human rights and companies as such. Contrarily, in the latest judgment, the Court addresses the responsibility of companies as a preliminary consideration to human rights violations. It does so based on the clause referring to the joint request for jurisprudential development signed by the State and the representatives in the friendly settlement agreement. It was through this clause that the Court was required to develop the content and scope of the American Convention rights affected by extractive fishing industry activities in the Miskito territory.

From this starting point, the Court draws on the United Nations "Guiding Principles on Business and Human Rights", adopted by the Human Rights Council, and refers to the duty of the State to protect human rights, the responsibility of business to respect human rights, and access to remedy mechanisms. Subsequently, given their analysis of the American Convention, the Court determines that States have a duty to prevent human rights violations produced by private companies through adopting domestic law provisions, as well as to investigate, punish, and remedy them when they occur. Additionally, it points out the need for States to encourage companies to incorporate good corporate governance practices with a stakeholder approach, which can guide respect for human rights when they carry out their activities.

The Court also stresses the need for companies to have an "active participation" in the search for respect for human rights. To this end, it determines that the regulation of business activity must be intended for companies to conduct continuous evaluations of the impact their activities have on human rights and, within their capabilities, to establish accountability mechanisms for the damages caused.

Lastly, it should be noted that the Court does not fail to remember the preponderant role transnational corporations have taken in recent decades. In that sense, it establishes some guidelines for the attribution of responsibility, which take into consideration the particularity of their activities. In so doing, it affirms that States must guarantee these companies will be held accountable for human rights violations derived from the carrying out of their activities in their territory. It also mentions that these regulatory measures must be aimed at holding them accountable when they benefit from the activity of national companies that are part of their production chain.

In conclusion, it is expected that this jurisprudential milestone will give rise to the improvement of living conditions in the Moskitia region. Furthermore, States subject to the jurisdiction of the Court will have greater tools to address human rights violations derived from business activities, given that not only Honduras but the entire Latin American region have experienced serious and grave human rights violations from extractive business and development activities.

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