The Inter-American Court unanimously affirmed that human rights
extends to all people, including informal immigrants who should
have the right to due legal process and labor rights. It is
the government's responsibility to keep private employers
from violating the internationally guaranteed rights of workers.
International Responsibility of the State
Decisions of the Inter-American System in 2003
The responsibility of the State for the violation of international
treaties has gone through a large evolution on our continent
since the creation of the American Convention on Human Rights.
Meanwhile, the change in how States treat these rights in
practice still occurs slowly.
The American Convention was created with the goal of avoiding
the perpetuation of a culture of impunity, and to require
States to adopt preventative measures. At the same time, the
responsibility of the State is not limited to the actions
and omissions performed by public agents while carrying out
their duties. The allegation that the offender acted on his
or her own account does not exclude the State from its responsibility.
The Inter-American Court has already decided on the matter:
is indifferent if the agency or the public official acted
against the internal law or the limits of his or her own legal
capacity. It is a principle of International Law that the
State is held accountable for official acts performed by its
agents or for omissions by the same agents, even if they acted
outside of the limits of their legal capacity or in violation
of internal law."2
In this way, the obligation of the State does not have only
a negative character. It means that its responsibilities include
implementing preventative measures in order to avoid violations
performed by public agents as well as private ones. For that
to happen, the existence of internal laws that protect human
rights in a formal fashion is not enough. It is necessary
that those norms are implemented in concrete cases. State
agents should be prepared to apply those laws in practice.
Court has affirmed that States should treat eventual violations
as an illicit act and, therefore, susceptible to sanctions.
Once the violation has been committed, the country becomes
obligated to perform serious investigations, with all means
available, to identify and punish those responsible. Not doing
so, the State has become liable to international responsibility:
illicit, violative suit involving human rights, which initially
is not attributable directly to the State - for example, because
it is the work of a particular person, or because the State
is not identified with the perpetrator of the transgression
- may bring into question the fulfillment of that State's
international responsibility. This is not because of the State's
own account, but due to the lack of diligence that was needed
to prevent the violation, or to treat it in the terms required
by the Convention".3
With the charge of responsibility, the States within the Organization
of American States (OAS) that ratified the Convention assume
the obligation of assuring adequate reparation for damages
caused to victims and their families, rehabilitating the situation
before the violation when possible.
Based on these norms, the Inter-American Commission of Human
Rights in 2003 proceeded to make advances in various emblematic
cases in Brazil, such as in the account that follows.
Case of José Pereira
September 2003, the Brazilian State signed for the first time
a friendly agreement recognizing its international responsibility
for human rights violations committed by individuals. The
victim, José Pereira (at that time 17 years old) was
forced to work in conditions similar to those of slaves in
the Espírito Santo Plantation, in the state of Pará.
While he was trying to escape the plantation, Pereira suffered
permanent injuries to his right eye and hand from bullets
accord constituted a landmark in decisions related to the
violation of human rights in the country. Even though this
type of solution was common among the member countries of
the OAS, Brazil had never assumed its responsibility in these
terms. These results came about through a friendly solution
trial initiated by an international petition sent to the Inter-American
Commission of Human Rights by CEJIL (Comissão Interamericana
de Direitos Humanos pelo Centro pela Justiça e o Direito
Internacional- Center for Justice and International Law) and
by CPT (Comissão Pastoral da Terra - Pastoral Land
Commission). Both organizations denounced the incapacity of
the State to prevent and punish the practice of slave labor.
Besides the fact that it constituted a grave violation of
human rights, the case went unpunished in the country. The
penalty handed down to one of the guilty parties could not
be enforced because too much time had passed during the inquiry
and the pronouncing of the judgement for a retroactive sentence.
2000, the Brazilian State showed its willingness to move forward
towards a solution for this case. CEJIL and CPT presented
the first proposal of reparation with an aim to begin discussions
that three years later brought about the signing of the agreement.
case of José Pereira is not an isolated incident in
the country, especially in the state of Pará. Because
of the precarious situation of landless workers in that region,
this case is representative of several land owners who exploit
slave labor in this state. For this reason, the petitioners
included a request that, besides monetary fines, a Federal
Court be established to preside over judgements on the crime
of slavery. They also requested a series of legislative and
administrative changes with the goal of preventing impunity.
many discussions with CEJIL, CPT, and the government on forced
labor in Brazil, many of those proposals were included in
the National Plan for the Eradication of Slave Labor that
was elaborated in the beginning of this year. In this agreement,
the State determined the payment to José Pereira for
moral and material damages, and it established diverse measures
for control and repression of slave labor.
The friendly agreement in this case opens the path for other
violations to be decided in a similar fashion. Brazil's acknowledgement
of its international responsibility for actions performed
by individuals is an important step towards a change in the
way that human rights are handled by the State.
Case of Eldorado dos Carajás
The massacre of Eldorado dos Carajás was emblematic
in turning the public's attention to the constant disrespect
of human rights in rural conflicts, and the impunity that
permeates this type of violation. Since there were no serious
investigations of the case, CEJIL and the MST (Movimento dos
Trabalhadores Rurais Sem Terra - Landless Workers Movement)
presented to the Inter-American Commission a petition requesting
that the Brazilian State take responsibility for the violations
of articles #4 (the right to life), #5 (physical integrity),
#8 (judicial guarantee), and #25 (judicial protection) from
the American Convention on Human Rights.
April 1996, 1,500 rural workers camped out on the state highway
in the municipality of Eldorado dos Carajás, in the
state of Pará. They were on their way to Belém
to urge INCRA (Instituto Nacional de Colonização
e Reforma Agrária - National Institute of Colonization
and Agrarian Reform) and the state government to transfer
ownership of the plantation "Macaxeira". With the
pretext to empty the highway, military police began shooting.
They killed 19 workers - 6 died during the initial firing,
and 13 were executed in cold blood after the clearing of the
highway. Sixty-nine other workers were seriously wounded.4
the investigations performed by the military court, 144 military
police were brought before the courts but only two were condemned.
In the meantime, those two are not held in custody while they
are waiting for the results of a retrial. In February 2003,
the OAS Human Rights Commission accepted the petition from
CEJIL and MST.
to the Commission:
"The investigation of the case by the military court
eliminates the possibility of an objective and independent
investigation conducted by the judicial authorities. The fact
that the investigation was initiated by a military court could
make condemnation of the military impossible, even if the
case were to be presented to an ordinary court, given that
proof was not collected in an effective and timely manner"
Commission's report, concerned with what was admissible, also
pointed out the change in Brazilian legislation in 1996 that
brought military police crimes against the lives of civilians
into common jurisdiction. Under this legislation, the investigation
should have been conducted by the civil police, not by a military
court, even if it involved the military police.
After some analysis of the case, and, besides declaring admissibility
in relation to the facts and articles presented by the petitioners,
the Commission included article # 2 (requirement to adopt
dispositions of internal law) into the report.
In October 2003, the Commission approved the reports on the
cases of Corumbiara and Jailton Neri da Fonseca, both conforming
with article 51 of the American Convention on Human Rights.
The first case was a massacre of rural workers, which occurred
in 1995 in the municipality of Corumbiara, in the state of
Rondônia. The other case was the execution of a black
boy by the military police in one of the slums of Rio de Janeiro.
this same period, the Commission presented its final conclusions
on the case of Parque São Lucas, in agreement with
article 51 of the Convention. The indictment referred to the
death of various detainees after an attempted riot at Police
District #42 in Parque São Lucas, in the city of São
Paulo. According to the indictment, around 50 prisoners were
incarcerated in a cell that measured 3 feet by 9 feet. Within
this cell, they were exposed to tear gas, and this resulted
in 18 deaths from asphyxiation and 12 other detainees were
General Assembly of the OAS
In June 2003, the 33rd General Assembly of the OAS was held
in the city of Santiago, Chile. The goal of the meetings was
to proclaim, promote, and strengthen democracy in the countries
of the region. CEJIL, along with FLASCO-Chile, the Secretary
General of the OAS, Corporación Participa, Human Rights
Watch, and the Diego Portales University, organized a preparatory
meeting. The results were presented to the Heads of the Delegation
and the Secretary General of the OAS. This established a dialogue
among human rights organizations and members of civil society
with the aim of sharing experiences and generating recommendations
concerning democracy in the Americas.
to draw out serious and concrete goals, the member States
of the OAS affirmed their agreements to respect the decisions
and resolutions of the Inter-American Convention of Human
Rights and the Inter-American Court of Human Rights.
Consultative Opinion OC-18
Before the General Assembly of the OAS took place, Mexico
requested that there also be discussions on the Consultative
Opinion OC-18. Following the amicus curiae presented by CEJIL,
labor rights, as well as human rights, could not remain on
the margins of the Inter-American System. Those rights, such
as the principle of equality before the law and nondiscrimination,
should be respected.
principles are included in the International Convention on
the protection of rights of all the migrant workers and their
families. It establishes protection for all workers, formal
or informal, without any discrimination. The Convention was
adopted by the General Assembly of the United Nations in 1990,
and went into force on July 2003.
agreement with CEJIL, there should be no restriction of the
labor rights of undocumented migrant workers, on the grounds
that it leads to informal contracts and encourages shady business.
September of this year, the Inter-American Court of Human
Rights issued the Consultative Opinion OC-18 on the Juridical
Conditions and Rights of Undocumented Migrants. According
to Mexico, the vulnerability of migrant workers makes them
easy targets to human rights violations. This vulnerability
subjects them to discrimination, so they can not exercise
their rights. In the OC-18 petition, the Mexican Government
pointed to the incompatibility of the interpretation of the
law by some of the States in the region with the human rights
system of the OAS, especially in relation to the labor rights,
such as overtime and maternity leave.
agreement with the Inter-American Commission on Human Rights,
the Consultative Opinion is not merely academic speculation.
It presents concrete benefits to the international protection
of human rights and strengthens people's juridical conscience.
to the declaration of the Court in OC-18, the State, after
ratifying a treaty on human rights, should introduce in its
internal law the necessary measures to assure that obligations
are effectively carried out. In the same way, States have
the duty to guarantee the complete and free use of the rights
and liberties without any discrimination, including its relation
to foreigners who have the same rights as other citizens.
In the case that a government does not fulfill these obligations,
it can be called on internationally to take responsibility.
obligation of the State is not finished by adopting negative
measures, such as not committing acts of discrimination. It
must include positive actions in order to prevent such acts.
this way, the Inter-American Court unanimously affirmed that
human rights recognized by this organization extend to all
people, including informal immigrants. Their rights, such
as due legal process and labor rights should be ensured. It
is up to the government to prevent private employers from
violating those internationally guaranteed workers' rights.
to the Consultative Opinion OC-18, CEJIL hopes that the thousands
of immigrants on the American continent, who left their countries
in search of a life with more dignity, will have their rights
respected. Despite the fact that they are often in an informal
situation, the human rights of immigrants should prevail,
This article was prepared by CEJIL Brazil (Centro pela Justiça
e o Direito Internacional / Center for Justice & International
Law). We would like to point out the work of Paula Magalhães,
communications intern, in the preparation of this article.
See Inter-American Court of Human Rights, the case of Velásquez
Rodríguez, sentence on July 29, 1998, series C, #4,
paragraph 170; the Case of Godínez Cruz, sentence on
January 20, 1988, series C, #5, paragraph 179
See Inter-American Court of Human Rights, the case of Velásquez
Rodríguez, sentence on July 29, 1998, series C, # 4,
paragraph 172; the case of Godínez Cruz, on January
20, 1988, series C, # 5, paragraphs 181 and 182; the case
of Caballero Delgado e Santana, sentence on December 8, 1995,
series C, # 22, paragraph 56
See the report by CEJIL The International Responsibility of
the Brazilian State for the Massacre of Eldorado dos Carajás
See the Inter-American Court of Human Rights, the case of
Eldorado dos Carajás, report # 4/03
During the writing of this article, the reports were still
classified as confidential making it impossible to divulge
See the Inter-American Court of Human Rights, the case of
Parque São Lucas, report # 10/97