We filed an amicus brief at the Inter-American Court on Human Rights (IACtHR) stating that corporations do not have human rights this March. We argued that neither corporations (nor their shareholders for injuries to the corporation) have the ability to lodge petitions at the Inter-American Commission on Human Rights (the “IACHR”). We also argued that human beings, indigenous organizations and labor unions do. The IACtHR asked us to present our arguments orally on June 25, 2015.
The amicus brief addressed the questions raised by the request for an advisory opinion submitted by the Republic of Panama. (In the Inter-American system, a country can ask the IACtHR to issue such an opinion.) Panama’s request asks the Court whether “juridical persons” – entities such as corporations that don’t really exist in the world, but are created by laws – have human rights and the ability to use the Inter-American human rights system. A number of law firms which normally represent corporations and confederations of corporations filed submissions in support of their alleged human rights. We categorically rejected such a preposterous position.
Panama’s request does not differentiate between corporations, which do not have any human rights, and indigenous organizations and labor unions, whose human rights have already been recognized by the IACtHR in different cases. (Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Case of the Plan de Sánchez Massacre v. Guatemala, Case of the Yakye Axa Indigenous Community v. Paraguay, Case of the Saramaka People v. Surinam. See also Case of Huilca-Tecse v. Perú, Case of Cantoral-Huamaní and García-Santa Cruz v. Perú.)
By framing the same question regarding all entities, including labor unions and indigenous organizations, as well as corporations, the request could result in either a denial of human rights to indigenous organizations and labor unions or an unreasonable award of human rights to corporations. There are already precedents denying standing to corporations. (Case Banco de Lima v. Perú, Tabacalera Boquerón S.A. v. Paraguay, Mevopal, S.A. v. Argentina.) Thus, the request could cause the IACtHR to apply those findings to all entities. In the alternative, the request could cause the Court to grant human rights to corporations. Therefore, we asked the IACtHR to declare this request inadmissible, because the way the question is framed is simply wrong.
In case the IACtHR does address the merits of the request, in our amicus brief we explained what makes corporations so different from human beings, indigenous organizations and labor unions:
- While the legal personality of an indigenous community is a safeguard for the life, self-determination and personal integrity of each member in his/her ancestral land (Saramaka), the juridical personality of a corporation has only economic (rather than vital or self-determination) purposes, and breaks any link between the shareholder’s assets and the corporation's property (Barcelona Traction, Light and Power Company, Limited.)
- Similarly, the difference between labor unions and corporations lies in the fact that the unions are organized “for furthering and defending the interests of workers.” (Freedom of Association and Protection of the Right to Organise Convention.)
- Indigenous organizations can be formed under each individual’s freedom of association or pursuant to their collective rights as indigenous peoples. (American Convention on Human Rights, Mayagna, Plan de Sánchez Massacre, Yakye Axa Indigenous Community, Saramaka.) Likewise, workers can assemble and create associations through labor unions, pursuant to both their individual and collective rights to freedom of reunion, association and to start unions. (American Convention, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights.) However, there is no recognized right to form a business corporation; this type of organization goes beyond mere property and associational rights, due to the corporate veil dividing the shareholders’ and the corporation’s personality and assets. (Barcelona Traction.)
- Corporations are created by governments and their rights are not inalienable, while human beings acquire their human rights just because of their humanity. “[T]he corporate entity [is] an institution created by States,” which implies that it “might legally mean whatever the law makes it mean.” (Barcelona Traction, The Historic Background of Corporate Legal Personality.) Instead, “the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human personality.” (American Convention.) The state cannot derogate the most essential human rights of an individual, note even in times of emergency. (American Convention.)
While corporations do not have human rights, indigenous organizations and labor unions do – or at least, they are the carriers of the rights of the indigenous peoples and workers they represent. This difference lies in the fact that corporations have a corporate veil which separates the shareholders from the corporation. Any violation addressed to the corporation does not make any damage for which the shareholders could bring an action, either in their name or on behalf of the corporation.
Moreover, the American Convention on Human Rights does not recognize any right to start a business through a corporation. In contrast, the American Convention does recognize the rights to freedom of assembly and association, under which indigenous organizations and unions can form a group whose juridical personality has been recognized. Unlike corporations, these entities are not separate from their members; any damage suffered by an individual directly affects the group and vice versa.
Therefore, indigenous organizations and labor unions are entitled to human rights for their members as individuals and for the group as a whole, while corporations do not enjoy such rights. Both indigenous organizations and labor unions can represent their member and act on their own behalf when filing petitions before the IACHR.