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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)

Key take-aways from the Inter-American Court judgement on Miskito divers vs. Honduras

CEJIL

The Inter-American Court judgement 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 for the living conditions of Miskito divers, but also for the establishment of inter-American standards concerning some matters not yet explored by the Regional Court.

"Miskito Divers" refers to an Indigenous Miskito community in the Department of Gracias a Dios on Honduras' Atlantic coast, which subsists mainly through shellfish and lobster underwater fishing. What began as a means of self-sustenance through "breath-hold" fishing gradually became a tank-diving extractive industry outside of any state control. It is important to highlight the Honduran Moskitia region is burdened with high rates of poverty, malnutrition, illiteracy, unemployment and a lack of access to basic services.

Within this context, an estimated 97% of the 9,000 Miskito divers have suffered health impacts, 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, which 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 damages to victims and their families but also, through guarantees of non-repetition, to improve the living conditions of all Miskito people in the region.

This precedent is interesting for inter-American jurisprudence: it advances the jurisprudential line of justiciability of socio-economic rights, and addresses the problem from a structural and intersectional discrimination perspective. Moreover, this is the first Inter-American Court judgement 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. This new judgement, however, sees the Court address 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 their 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 State duty to protect human rights, the business responsibility 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-focused approach, which can guide respect for human rights in their operations.

The Court also stresses the need for companies to take "active participation" in respecting human rights. To this end, it determines 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 harm.

Lastly, it should be noted the Court acknowledges the preponderant role transnational corporations have taken in recent decades. In this sense, it establishes some guidelines for the attribution of responsibility, which takes into consideration the particularity of their activities. In so doing, it affirms States must guarantee companies will be held accountable for human rights abuse derived from the business operations in their territory. It also mentions these regulatory measures must aim to hold them accountable when they benefit from the activity of national companies that are part of their production chain.

In conclusion, it is expected this jurisprudential milestone will give rise to the improved 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 has experienced serious and grave human rights abuse linked to extractive business and development activities.