A Commentary on Recent Developments in the Inter-American Court of Human Rights’ Advisory Opinion on the Standing of Legal Entities
Florencia Bohl 30th November 2016

The Inter-American Court of Human Rights (IACtHR) Advisory Opinion OC-22/16 examined the question of whether legal entities have standing before the Inter-American System of Human Rights. It addressed issues surrounding the interpretation of Article 1.2 of the American Convention of Human Rights (ACHR) in a literal, teleological, systemic, and evolutionary approach. The eventual conclusion–that legal entities lack standing since they are not human rights holders–leads to a closure of the potential justiciability of legal entities’ human rights, affecting the right to an effective remedy for both natural and legal persons.

The Inter-American System is comprised of two bodies: the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). The IACtHR has both adjudicatory and advisory jurisdiction. Regarding to the advisory function of the IACtHR, Article 64 of the ACHR provides that any member state of the Organization may consult the Court on the interpretation of the Convention or of other treaties on the protection of human rights in the American states. On the other side, the IACHR, created to promote the observance and defence of human rights and to serve as consultative organ of the Organization, has a role in the adjudicatory jurisdiction of the former. This entails the preparation of reports on an early stage of the cases submitted to the System–which may include recommendations to the State concerned–and is the organ who decides whether a case proceeds to the next phase, that is, the trial before the IACtHR.

Before the IACtHR issued Advisory Opinion OC-22/16, the IACHR had already expressed the same position before, in at least two cases. On those, the IACHR decided, on the one hand, that excluding legal entities from the Inter-American legal system is reasonable because legal persons are fictions as they lack real material existence. On the opposite hand, the IACHR has stated that the essential right of man based upon “attributes of the human personality,” needs to create conditions that will enable all persons to achieve “the ideal of free men enjoying freedom from what they fear and want” (See Bendeck-Cohdinsa (Honduras), Report 106/99, para 17 and Mevopal S.A. (Argentina), Report 39/99, para 17). Therefore, according to this latter point, in the understanding of the both the IACHR and the IACtHR, it is necessary to exclusively protect conditions affecting human beings.

However, it must be pointed out as Aristotle puts it, that among human attributes is our natural sociability: “society is something that precedes the individual,” which does not find protection under the Inter-American System.

According to the OC-22/16, a literal interpretation of Article 1.2 of the Convention leaves no space for doubt, since it states that “person” means human being. In understanding that juridical persons lack standing before the IACtHR, and thus are inadmissible in complaints on their own behalf, it is also important to notice that there are certain rights – such as right to property and freedom of expression – that are usually exercised by a natural person through a legal entity.  In those situations, the IACtHR recognises that legal entities are a means of exercising those rights. Hence, in such circumstances, because the right-holders are still the natural persons who compose the juridical person, it would be possible for a complaint filed by a juridical person to be admissible.

Based on the above understanding, the admissibility of a complaint by a legal entity before the IACHR depends on the compliance of the following requirements: (i) the exercise of a right that involves an essential relationship between the legal entity and the rights-holder(s); (ii) an actual violation of a natural person’s human right; and (iii) the exhaustion of domestic remedies.

In fact, the IACtHR evokes in Advisory Opinion OC-22/16 previous cases where it admitted the complaints brought by legal entities such as trade unions and indigenous communities on behalf of natural persons who were participants in those entities. As much as the IACtHR has stated that the “special rights they hold” give the legitimacy to the entities whose claims they have declared admissible in the past, it can be argued that the human rights violated in these cases could have been exercised through any other legal entity.

In sum, despite the fact that the Advisory Opinion categorically points out that legal entities are not rights-holders and therefore lack standing before both the IACHR and the IACtHR, a detailed assessment shows that under certain circumstances it would be possible for a legal entity to file a complaint on matters that directly affect its participants. This therefore suggests that there is a chance to start a new wave of thought in the jurisprudence of the Inter-American System.

Author profile

Florencia M. Bohl is an attorney at law in Buenos Aires, Argentina. She graduated Summa Cum Laude with a Law degree from the Ponthifical Catholic University of Argentina in 2016. Florencia is a member of the human rights research clinic in the same University and the Centre of Investigation for the Inter-American Human Rights System (Centro de Investigación para el Sistema Interamericano de Derechos Humanos).

Citations

Florencia M. Bohl, “A Commentary on Recent developments in the Inter-American Court of Human Rights’ Advisory Opinion on the standing of legal entities” (OxHRH Blog, 30 November 2016) <http://ohrh.law.ox.ac.uk/a-commentary-on-recent-developments-in-the-inter-american-court-of-human-rights-advisory-opinion-on-the-standing-of-legal-entities/> [Date of Access]

Leave a Reply

Your email address will not be published. Required fields are marked *