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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 and
Decisions of the Inter-American System in 2003

CEJIL Brazil*

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:

"It 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.

The 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:

"An 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.

The Case of José Pereira

On 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 of gunmen.

The 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.

In 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.

The 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.

After 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.

The 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.

In 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

After 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.

According 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" 5.

The 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.

Other Cases

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. 6

During 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 hospitalized.7

The 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.

Looking 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.

These 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.

In 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.

In 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.

In 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.

According 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.

The 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.

In 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.

Due 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, without discrimination.

* 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.

2. 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

3. 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

4. See the report by CEJIL The International Responsibility of the Brazilian State for the Massacre of Eldorado dos Carajás

5. See the Inter-American Court of Human Rights, the case of Eldorado dos Carajás, report # 4/03

6. During the writing of this article, the reports were still classified as confidential making it impossible to divulge more information

7. See the Inter-American Court of Human Rights, the case of Parque São Lucas, report # 10/97