Legal Persons as Victims of
Human Rights Abuses
The explanation for and effect of the difference in the position of legal persons in human rights protection under the ACHR and the ECHR
Master Thesis International and European Law: Public International Law
Sanne van den Heuvel, 10211055 July 14th, 2017
Abstract
This thesis examines why the states in the Americas and Europe made different choices in answering the question whether legal persons can be considered as holders of the rights established in ACHR and ECHR and what effect it has in practice. The inclusion of legal persons in the human rights regime has been debated often, mostly in the context of corporate accountability, but there is less focus on their possibilities to claim protection under human rights treaties. The Inter-American system does not offer the same protection to legal persons as the European system. Natural persons behind the company sometimes have the option to indirectly protect human rights of companies. However, because of the requirements of direct effect and other formalistic requirements, it will often be difficult for them to achieve this goal.
Table of Contents
1. Introduction 3
2. Comparison Between The Two Systems 6
2.1 The European System 6
2.1.1 The European Convention on Human Rights and institutions 6
2.1.2 Submitting an application 7
2.1.3 Companies as ‘victims’ 7
2.1.4 Protection of human rights in the business context 8
2.2 The Inter-American System 9
2.2.1 The American Convention on Human Rights and institutions 9
2.2.2 Submitting an application 10
2.2.3 Companies as ‘victims’ 11
2.2.4 Protection of human rights in the business context 12
2.3 Conclusion 14
3. Companies as Beneficiaries of Human Rights: the Doctrinal Debate 15
3.1 Exclude legal persons 15
3.2 Include legal persons 17
3.3 Conclusion 18
4. The Difference Explained 19
4.1 European System 19
4.2 Inter-American System 21
4.3 Comparison 23
5. Protecting Individuals Behind Companies 26
5.1 The indirect protection of legal persons through their shareholders 26
5.1.1 European System 27
5.1.2 Inter-American system 29
5.2 Example case: Yukos 31
5.2.1 Introduction to the case 31
5.2.2 Assessment: Yukos in the Inter-American system 33
6. Conclusion 36
1. Introduction
In 2003 the Russian authorities accused the oil firm Yukos of tax crimes. The majority shareholder of Yukos, Mikhail Khodorkovsky, who also publicly clashed with Russian president Vladimir Putin, was arrested on charges of tax evasion. He was later jailed, but has since been released on humanitarian grounds. The company was forced out of business after years of litigation sparking even more litigation in various jurisdictions and international judicial bodies. This billions dollars a year making company also turned to the European Court of Human Rights (ECtHR) to ask for protection against the abuses by Russia of their human rights. The ECtHR decided that Russia violated several human rights of Yukos and awarded the highest damages claim yet.1
In February of 2016 the Inter-American Court of Human Rights (IACtHR) issued an advisory opinion at the request of the Republic of Panama.2 The opinion concerned the question
whether legal persons are subjects of human rights and as such can be seen as victims of human rights violations. The IACtHR established that legal persons are not entitled to enjoy protection of their human rights under the American Convention on Human Rights (ACHR).3
With new parties on the horizon that might be able to invoke human rights, such as artificial intelligence and robots, animals or even rivers or lakes4, it is an excellent time to define
1 € 1.9 billion. C. McCarthy, ‘The ECtHR’s Largest Ever Award for Just Satisfaction Rendered in the Yukos 2 Corte Interamericana de Derechos Humanos, ‘Opinion Consultiva OC-22/16’, 26 febrero 2016 was a response
to Corte Interamericana de Derechos Humanos, ‘Request for an advisory opinion by the government of the Republic of Panama’, 28 April 2014 http://www.corteidh.or.cr/solicitudoc/solicitud_14_11_14_ing.pdf (Accessed 12 June 2017)
3 The American Convention of Human Rights, adopted 22 November 1969, entered into force 18 July 1978, San
José, Costa Rica 1144 UNTS 123, http://www.cidh.org/Basicos/English/Basic3.American%20Convention.htm (Accessed 12 June 2017)
4 In New Zealand the Whanganui River is recognized as having personhood rights, in India the High Court
found that the Ganges River and other ecosystems were legal persons and in Colombia the Atrato river basin possess rights.
M. Margil, ‘Press Release: Colombia Constitutional Court Finds Atrato River Possesses Rights’, [website] 2017 https://celdf.org/2017/05/press-release-colombia-constitutional-court-finds-atrato-river-possesses-rights/ (Accessed 12 June 2017)
E. O'Donnell & J. Talbot-Jone, ‘3 Rivers Just Became Legal 'Persons', 2017 [website]
https://www.livescience.com/58398-3-rivers-just-became-legal-persons.html (Accessed 12 June 2017) A. Vlieger, ‘Gastcolumn: help, de robot heeft mensenrechten’ De Volkskrant, 2 October 2016
http://www.volkskrant.nl/opinie/gastcolum-help-de-robot-heeft-mensenrechten~a4386863/ (Accessed 14 June 2017)
European Parliament, Committee on Legal Affairs, ‘Draft Report with recommendations to the Commission on Civil Law Rules on Robotics’, 2015/2103(INL)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-whom exactly can enjoy protection under the vast amount of international human rights treaties.5 In the human rights realm, more has been written on the issue of companies as perpetrators of human rights violations, than on legal persons as victims of human rights abuses.6
Human rights institutions are not in agreement about the question of legal persons as victims of human rights violations. At the Human Rights Committee private and public legal persons or similar entities cannot complain about the violation of their fundamental rights.7 They have no standing and do not qualify as beneficiaries. The European Court of Human Rights (ECtHR) has for a long time decided differently in respect of the European Convention on Human Rights (ECHR).8 In several cases companies were considered to enjoy human rights under the Convention, going as far as extending the word ‘home’ in article 8 of the Convention to a company’s office.9
This thesis examines why the states in the Americas and Europe made different choices when drafting their respective regional human rights treaties and what effect those differences have in practice. By comparing jurisprudence, the travaux preparatoires and scholarly debate a tentative conclusion will be reached.
For the understanding of this thesis, concepts that lie at the core of this thesis must be clearly defined. Companies in this thesis will mean limited liability companies with separate legal personality.10 This separate legal personality is a key feature of the limited liability company. The term ‘legal person’ will be used in contrast to ‘natural person’ or ‘human being’. A legal person is every entity that has its own rights and duties, separate and additional to those of its
//EP//NONSGML%2BCOMPARL%2BPE-582.443%2B01%2BDOC%2BPDF%2BV0//EN (Accessed 14 June 2017)
5 See http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx for an overview of UN Human
Rights Conventions (Accessed 14 June 2017)
6 The issue of businesses’ impact on the enjoyment of human rights has been placed on the agenda of the United
Nations, see http://www.ohchr.org/EN/Issues/Business/Pages/BusinessIndex.aspx accessed 12 June 2017
7 P. H. Van Kempen, ‘The Recognition of Legal Persons in International Human Rights Instruments: Protection
Against and Through Criminal Justice?’ in Mark Pieth & Radha Ivory (eds.), Corporate Criminal Liability.
Emergence, Convergence, and Risk, Springer 2011, par 14.2.1
8The European Convention for the Protection of Human Rights and Fundamental Freedoms, As amended by
protocols Nos. 11 and 14, opened for signature 4 November 1950, Rome, ETS 5, 1950 http://www.echr.coe.int/Documents/Convention_ENG.pdf (Accessed 12 June 2017)
9 Société Colas Est and Others v. France App no 37971/97 (ECtHR, 16 April 2002) § 40-42 10 Also called corporate personality
shareholders or founders and that is qualified as being a legal person under the law of its place of incorporation.11
The first chapter of this thesis examines the two different systems of the ECHR and the ACHR. It describes the supervisory bodies of these systems, how did these supervisory mechanisms come about and in what way parties can file complaints at the judicial bodies. In the second chapter the approaches of the two regarding whether companies are protected under the respective conventions will be compared. After setting out the scholarly debate in chapter three, chapter four will look at the textual, teleological and historical explanations for the difference in allowing legal persons human rights protection. The fifth chapter will look into the consequences of this difference. First the possibilities of stakeholders of companies will be reviewed by looking at jurisprudence. Second the question is answered: What would be the result of the Yukos case if it had been filed at the IACtHR? The Yukos case will be taken as a case study because of its clear and concise reasoning by the ECtHR and the considerable difference it would have made when Yukos would have tried to achieve the same result in the Inter-American system. The ruling on compensation is the ECtHR’s biggest award to date and the legal proceedings following after the liquidation of the company have been the source of much academic debate.12 The possibility for Yukos to take the case outside of the domestic courts to the ECtHR enabled the company to find justice for the attack by the Russian government.13 The thesis will end with some conclusive remarks.
11 Corte Interamericana de Derechos Humanos, supra note 2, p. 12 12 C. McCarthy Supra note 1
13 The Russian Constitutional Court recently blocked the implementation of the damages award. The Court ruled
on 19 January 2017 that Russia did not have the pay the compensation to the ex-shareholders. I. Marchuk, ‘Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority of the ECtHR in the Yukos Case’ EJIL: Talk!, 2017
2. Comparison Between The Two Systems
The devil is in the details. 14
After World War II a variety of systems and organisations were founded to secure human rights everywhere. On a global level the United Nations created a number of instruments for the protection of human rights.15 In addition to the universal system, several regional systems were established. This thesis focuses on two regional human rights systems because of the similarities between its approaches and institutions. The structures of the European system and the Inter-American system will be discussed, as well as the question who can submit complaints, who can claim victim status and which rights of legal persons are protected.
2.1 The European System
2.1.1 The European Convention on Human Rights and institutions
In 1949 the Council of Europe (CoE) was founded by ten Western European liberal democracies.16 There are currently 47 members and six observer states.17 The CoE established the European system for human rights. The European Convention for the Protection of Human Rights and Fundamental Freedoms, more commonly known as the European Convention on Human Rights (ECHR), was signed on 4 November 1950 and entered into force on 3 September 1953. Ratifying the ECHR is a condition for membership of the CoE, therefore all States Parties of the CoE are parties to the ECHR.18 The ECHR establishes an international judicial organ with jurisdiction to entertain claims against States Parties, the European Court of Human Rights (ECtHR). Before Protocol No. 11 of 1998 there was also a European Commission of Human Rights (ECioHR). Individuals had to apply to the ECioHR and did not have direct access to the ECtHR. In 1998 the ECioHR was abolished.
14 G. Titelman, The Random House Dictionary of Popular Proverbs and Sayings, New York, Random House,
1996
15 Such as the Universal Declaration of Human Rights (UDHR), 1948, 217 A (III), the International Covenant
on Civil and Political Rights (ICCPR), 1966, Treaty Series, vol. 999, p. 171, the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, Treaty Series, vol. 993, p. 3, together the International Bill of Human Rights.
16 D. Moeckli, S. Shah & S. Sivakumaran (eds), International Human Rights Law, 2nd Edition, Oxford, Oxford
University Press 2014, p. 417
17 Council of Europe, ‘Our Member States’ http://www.coe.int/en/web/about-us/our-member-states [webpage]
(Accessed 11 July 2017)
2.1.2 Submitting an application
Nowadays only the ECtHR can hear complaints on violations of the ECHR and does so on receiving inter-state or individual applications, respectively provided for in articles 33 and 34 ECHR. ‘Any person, non-governmental organization or group of individuals claiming to be the victim of a violation’ can lodge an individual application.19 Victims have to file their own claims, otherwise the application shall be declared inadmissible. This follows from the victim requirement in article 34.20 At the ECtHR applicants must be represented unless the ECtHR exceptionally decides differently.21 At the ECtHR it is not possible to raise general complaints, nor an action in the nature of an actio popularis, since article 35 does not allow for a claim made in abstracto.22 There needs to be a victim and only the victim can apply to the ECtHR.
2.1.3 Companies as ‘victims’
In the main text of the ECHR there is no direct mention of ‘legal person’. Article 34 refers only to ‘person, non-governmental organisation or group of individuals’. There is no further definition of ‘person’ and no specification whether this concerns only natural persons, or also legal persons.
However, the explicit acceptance of legal persons can be found in the first article of Protocol No. 1 where legal persons are granted protection of a fundamental right: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’.23
There have been several cases based on this article. In the case of AGOSI v. the United Kingdom (UK) the applicant company was a joint stock company incorporated in Germany.24 The ECtHR accepted the company’s legal standing as a victim, but came to the conclusion that there was no violation of the article, because the procedure available in the UK was adequate.25
19 European Court of Human Rights, ‘The ECHR in 50 questions’ [webpage]
http://www.echr.coe.int/Documents/50Questions_ENG.pdf (Accessed 14 April 2017)
20 Article 35 par 3 sub b ECHR
21 Rule 36 pars. 2 - 4, European Court of Human Rights, Rules of Court, 14 November 2016
http://www.echr.coe.int/Documents/Rules_Court_ENG.pdf (Accessed 11 July 2017)
22 Norris v Ireland, App no 10581/83 (ECtHR 26 October 1988) § 30
23Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms,
publicated 20 March 1952, ETS 9
24AGOSI v United Kingdom App no 9118/80 (ECtHR, 24 October 1986) § 11 25 Idem. § 62
Concerning other articles from the ECHR, the ECtHR has never doubted that a company can be considered a non-governmental organisation within the meaning of article 34 and can therefore apply to the ECtHR.26 This follows clearly from jurisprudence: “The Court observes that a legal entity “claiming to be the victim of a violation [...] may submit an application to it [...] provided that it is a “non-governmental organisation.”27 The case of Islamic Republic of Iran Shipping Lines v Turkey was not the first time a company was allowed to apply. Already in 1965 in the case between the Televizier and the Netherlands the ECioHR rejected the objection by the Netherlands that the applicant, being a company, could not be considered a victim of an alleged violation of the convention.28
2.1.4 Protection of human rights in the business context
The ECtHR has interpreted several articles of the ECHR so that they would also apply to professional activities, regardless whether individuals or companies performed them. This does not mean that legal persons can always get similar protection to human beings.
A good example of the protection of a professional activity is commercial speech. Commercial speech is an economic activity that falls under the freedom to expression according to the ECtHR.29 However the ECtHR does consider that, ‘where commercial speech is concerned, the standards of scrutiny of the justification for restriction may be less severe’.30 It is therefore easier for states to restrict commercial speech.
Another example is the broad interpretation of article 8 ECHR concerning the right to respect for private and family life. The rationale for the broad interpretation of the word ‘home’ in article 8 ECHR, becomes especially clear in the 1992 case of Niemietz v. Germany: “To deny the protection of Article 8 ECHR on the ground that the measure complained of related only to professional activities - as the Government suggested should be done in the present case - could moreover lead to an inequality of treatment, in that such protection would remain
26 In the first draft of ECHR the right of petition was given to ‘any natural or corporate person’. M. Robertson,
Collected Edition of the Travaux Préparatoires, vol 1, The Hague, Martinus Nijhoff 1975, p. 298 (draft Article
7a). ‘Corporate body’ was eventually replaced with ‘non-governmental organisation’. M. Emberland, The
Human Rights of Companies: Exploring the Structure of ECHR Protection, Oxford, University Press 2006, p. 35
27 Islamic republic of Iran Shipping Lines v Turkey App no 40998/98 (ECtHR 13 December 2007) § 78 28 N.V. Televisier v the Netherlands App no 2690/65 (Report of the ECionHR, 3 October 1968) p. 4 § 1 29 Barthold v Germany, App no 8734/79 (ECtHR 25 March 1985) § 42
30 Demuth v Switzerland App no 38743/97 (ECtHR 5 November 2002) § 42 and Hertel v Switzerland App no
available to a person whose professional and nonprofessional activities were so intermingled that there was no means of distinguishing between them.”31
In the Niemietz case the applicant is an individual, in the Société Colas Est case the applicant is a company and in this case as well the state had to respect the ‘home’ of the company, in
casu a business premises.32
The ECtHR has refused a narrow interpretation of the ECHR to prevent a risk of inequality of treatment. This bypassing of semantic difficulties,33 such as including professional premises under the term ‘home’, can be seen as a reason for concern to lawyers who observe a traditional interpretative methodology with an emphasize on text, concepts and semantics.34 The teleological approach is the preferred method of the ECtHR. Several articles have been deemed applicable to profit making corporations, such as articles 8, 6 and 10, to ensure a practical protection of the rights enshrined in the ECHR.35
Thus it is clear that it is possible for legal persons to file a complaint and have several rights protected by the ECtHR.36
2.2 The Inter-American System
2.2.1 The American Convention on Human Rights and institutions
A year before the establishment of the CoE, the Charter of the Organisation of American States was approved in 1948.37 In 1948 already the American states considered the idea of a court to protect human rights.38 However, it was not yet possible to draft a statute for a court
31 Niemietz v Germany App no 13710/88 (ECtHR, 16 December 1992) § 29 32 Société Colas Est and Others v France, supra note 9 § 30, 40-41
33 As done by the ECtHR in Niemitz v Germany, supra note 31 § 30 and Société Colas est and others v France
supra note 9 § 40.
34 W.H.A.M. Van den Muijsenbergh & S. Rezai, ‘Corporations and the European Convention on Human Rights’
25 Pac. McGeorge Global Bus. & Dev. L.J. 43, 2012 p. 58
35 Article 10 in Sunday Times v The United Kingdom (no. 1) App no 6538/74 (ECtHR, 26 April 1979) § 45,
Markt Intern Verlag GmbH and Klaus Beermann v Germany App no 10572/83 (ECtHR 20 November 1989) §
27
Article 6 in Dombo Beheer v the Netherlands App no 14448/88 (ECtHR 27 October 1993) § 35
36 M. Emberland, The Human Rights of Companies: Exploring the Structure of ECHR Protection, Oxford,
University Press, 2006, p. 4
37 Charter of the Organisation of American States, 30 April 1948 119 UNTS 3
http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp (Accessed 14 April 2017)
38 The 1948 conference that adopted the OAS Charter thereby establishing the OAS also adopted the American
Declaration of the Rights and Duties of Man (American Declaration). American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States, April 1948, reprinted in
because of a lack of substantive positive human rights law.39 On 21 November 1969 the
American states adopted the American Convention on Human Rights (ACHR) at the American Specialized Conference on Human Rights. The ACHR established the Inter-American Court for Human Rights (IACtHR), which came into being in 1979. The IACtHR is the supreme, autonomous judicial organ and exercises both contentious and advisory jurisdiction. A state is only subject to the jurisdiction of the IACtHR if it has ratified the ACHR and explicitly recognized the IACtHR’s jurisdiction.40 The IACtHR can adopt
measures to remedy violations such as fair compensation.41 The State Parties are required to comply with the judgments of the IACtHR.42
The other important organ in the Inter-American system is the Inter-American Commission on Human Rights (IACioHR). The IACioHR was created to promote and protect human rights.43 It began functioning in 1960.44 The IACioHR creates reports on human rights situations in member states, responds to inquires of member states and examines individual petitions.45
2.2.2 Submitting an application
Only Member States and the IACioHR are allowed to submit an application to the IACtHR.46 Individuals have to file a complaint with the IACioHR.47 If no agreement between the parties can be reached, the IACioHR draws up a report containing facts, conclusions and recommendations. If the state fails to fulfil the recommendations the IACioHR decides to publish the case or refer it to the IACtHR.48 It refers almost all cases to the IACtHR when the Basic Documents Pertaining to Human Rights in the Inter American System OEA/Ser L V/II.82 Doc 6 Rev 1 (1992)
The American Declaration was the first international statement of human rights, adopted six months before the Universal Declaration of Human Rights. Similar to the Universal Declaration, the American Declaration is not a legally binding treaty.
39 OAS, ‘Basic Documents to Human Rights’, (OAS/Ser.L/V/I.4 Rev. 9 2003) [webpage]
https://www.oas.org/XXXIVGA/english/reference_docs/Derechos_Hombre.pdf (Accessed 14 June 2017)
40 Article 62 ACHR. 25 states have ratified the convention so far, only the USA signed but did not ratify, 22
states have recognized the jurisdiction of the IACtHR OAS, American Convention on Human Rights, Convention Ratifications , [webpage] http://www.oas.org/en/iachr/mandate/basics/conventionrat.asp
41 Article 63 ACHR 42 Article 68 ACHR
43 Article 106 Charter of the Organisation of American States.
44 D.J. Harris and S. Livingstone ‘The Inter-American System of Human Rights’ Oxford Clarendon Press, 1998,
p. 19
45 Article 41 ACHR 46 Article 61 ACHR
47 D. Moeckli et al, supra note 16, p. 399
48 G. O. Hoyos, ‘Tools for Academic Research on Human Rights in Latin America: the Inter-American Human
state involved has accepted the IACtHR’s jurisdiction and the state has not complied with the Commission’s recommendations.49
The ACHR does not require applicants to be victims of violations themselves. This means that a third party can file a claim on behalf of a victim. Also, there is no requirement that the third party is legally empowered by the alleged victims to represent those victims.50
This absence of the victim requirement which is so decisive in the European system, corresponds with the notion that many victims of human rights abuse in the Americas have limited education and live in poverty. They often do not have the means or knowledge to file a complaint at the IACioHR themselves. There is also fear of retaliation by the state.51 Article 44 allows for this as long as there is a concrete violation of convention rights of a natural persons or a group of natural persons.52 An actio popularis is not possible.53
2.2.3 Companies as ‘victims’
The text of the ACHR is very clear on the possibility for companies to be victims of human rights violations. Article 1 (2) of the ACHR states that person means human being. The ACHR can only apply to human beings. As a company is not a human being, it can therefore not have rights under the ACHR.
The IACioHR has in its jurisprudence followed the text of the ACHR. When the IACioHR established its first precedent in 1991 in a case between the shareholders of Banco de Lima against Peru they kept it short and sweet stating that ‘what is at issue here are not the individual property rights of the individual shareholders, but rather the collective property rights of the company, the Banco de Lima, and that this case is not within the jurisdiction of the Inter-American Commission of Human Rights’.54 In other words: ‘The protection
https://www.cambridge.org/core/services/aop-cambridge-core/content/view/398E6955BF25DEF704885ED5D934450D/S1472669615000298a.pdf/tools_for_academic_r esearch_on_human_rights_in_latin_america_the_interamerican_human_rights_system.pdf (Accessed 11 July 2017) p. 110
49 D. Moeckli et al, supra note 16, p. 406- 407
50 Metropolitan Nature Reserve v Panama Report No. 88/03 Case 11.533 (IACioHR 22 October 2003) § 27 51 D. Moeckli et al, supra note 16, p. 401
52 M. Emberland, ‘The Corporate Veil in the Jurisprudence of the Human Rights Committee and the
Inter-American Court and Commission of Human Rights’ H.R.L.Rev. 4 (2) p. 257-275, 2004 https://doi.org/10.1093/hrlr/4.2.257 (Accessed 12 June 2017), p. 259
53 P.H. Van Kempen, supra note 7, par 14.2.3
afforded by the Inter-American human rights system is limited to natural persons, and excludes legal entities’.55
In Mevopal S.A. v Argentina the IACioHR took a more systematic approach. It first considers that “private juridical persons” may be assimilated to the notion of “non-governmental entity”.56 Article 44 ACHR establishes the possibility for non-governmental organization to submit complaints to the IACioHR. The Commission continues explaining that in the Inter-American system the notion of petitioner and victim is different.57 The persons protected by the ACHR are “every human being”. Legal persons are excluded from the scope.58 They represent a legal fiction and lack real material existence, while the essential rights of man are based upon ‘attributes of the human personality’ and the need to create conditions that will enable all persons to achieve ‘the ideal of free men enjoying freedom from fear and want’.59
The IACtHR follows the reasoning of the IACioHR. In the case of Cantos v Argentina the IACtHR explicitly accepts the interpretation of the IACioHR. A civil or commercial company is not able to invoke the articles of the ACHR because it is a legal entity.60
2.2.4 Protection of human rights in the business context
The scope of the protection of commercial rights is less clear in the jurisprudence concerning the ACHR. Considering that companies in the Inter-American system are not recognized as victims, it is not surprising that there is less clarity on ‘company-friendly’ interpretations of the articles of the AHCR.
It is not clear whether commercial speech is protected, whereas in the European system it is included in the freedom of expression. A case that can be considered to be relevant is the case of Marcel Granier et al v Venezuela. In this case a broadcasting company’s licence was not renewed. The company was known to be critical of then president Hugo Chávez’s government. The IACtHR concluded that the state’s action was a violation of the freedom of
55 Tabacalera Boquerón SA v Paraguay Report No 47/97 (IACioHR 16 October 1997) § 25 56 Mevopal S.A. v Argentina Report no 39/99 (IACioHR, 11 March 1999) §12
57 Idem. § 13 58 Idem. § 16-17
59 Zacarías Bendeck-Cohdinsa v Honduras Report no 106/99 (IACioHR, 27 September 1999) § 17 60 Cantos v Argentina Preliminary objections Ser C no 85 (IACtHR 7 September 2001) § 24
expression of the journalist working at the company.61 However, the fact that the opinions
were voiced via a company does not mean that the speech was of a commercial nature. It was political. Because of the lack of commercial speech, a link with European jurisprudence regarding journalist who voice their opinion via a legal person cannot be drawn.62
The IACtHR has been said to be more generous regarding the freedom of expression than the ECtHR. The interpretation of the ECtHR can provide a minimum standard for the interpretation of the IACtHR but never a ceiling.63 Extending this line of reasoning, the IACtHR would also protect commercial speech of individuals behind broadcasting companies or other media. However, according to the IACtHR itself the three types of speech that are specially protected according to Inter-American case law are political speech, speech regarding public officials and speech that is an element of the identity or personal dignity of the person expressing him or herself. 64 In this report on the freedom of speech in the Inter-American system there is no mention of commercial speech.65
In the case of Tabacalera Boquerón S.A. v Paraguay the IACioHR decided that the commercial rights and “assets” of Tabacalera Boquerón S.A. are not protected by the jurisdiction of the Inter-American Commission on Human Rights”, precisely because they are commercial.66 However, as will be explained below, in certain circumstances several rights of individuals who are encompassed in legal entities are protected, even when these individuals ask for protection of their rights in a more commercial or professional context. In the case of Cantos v Argentina the IACtHR did find that the rights of Mr Cantos to a fair trial and judicial protection were violated, while Mr Cantos was the major shareholder of several companies and the case therefore had a strong business aspect.67
61 Under certain circumstances the individuals can still get protection for their human rights, even when they are
enclosed in/covered by a legal fiction. See also Granier et Otros vs Venezuela, Ser C no 293 (IACtHR 22 June 2015 Excepciones Preliminares, Fondo, reparaciones y Costas) § 148
62 For example see Groppera Radio AG v Switzerland App no 10890/84 (ECtHR 28 March 1990) or Markt
Intern Verlag GmbH v Germany, supra note 35
63 E. A. Bertoni, ‘The Inter-American Court of HUman Rights and the European Court of Human Rights: A
Dialogue on Freedom of Expression Standards’ EHLR issue 3, 2009
http://www.palermo.edu/derecho/pdf/publicaciones/Paper-Bertoni.pdf (Accessed 11 July 2017) p. 352
64 E. Lanza, ‘Standards for a Free, Open and Inclusive Internet’, OEA/Ser.L/V/II 2017,
http://www.oas.org/en/iachr/expression/docs/publications/INTERNET_2016_ENG.pdf (Accessed 11 July 2017) p. 35
65 Commercial speech is also not explicitly excluded from protection. The only types of speech excluded are 1)
war propaganda and the advocacy of hatred that constitutes the incitement of violence; 2) the direct and public incitement of genocide; and 3) child pornography. E. Lanza, idem, p. 36
66 Tabacalera Boquerón SA v Paraguay Report No 47/97 (IACioHR 16 October 1997) § 27 67 Cantos v Argentina, supra note 60 § 66
In short, the IACioHR and IACtHR strictly follow the text of the ACHR. Legal persons can submit an application but do not themselves have substantive rights under the ACHR. The individuals behind the companies might be able to invoke certain human rights protection despite the business aspect in particular circumstances.
2.3 Conclusion
Prima facie already several differences can be established regarding locus standi by legal persons and protection of human right in a professional context.
In the European system individuals can petition directly at the ECtHR. Also legal persons can submit a claim. They then have to be the victim of a human rights violation. It is not possible for third parties to submit a claim on behalf of the victim in the European system. The ECtHR interprets several articles in a business friendly manner.
In the Inter-American system, individuals have to submit their application to the IACioHR. Legal persons can submit a claim on behalf of victims of human rights violations, but cannot themselves claim to be the victim. The individuals behind the legal person can, in certain cases, submit an application for the protection of their rights. The scope of this protection has not been fully developed yet.
3. Companies as Beneficiaries of Human Rights: the Doctrinal
Debate
“A group of people get together and exist as an institution we call a company so they are able to accomplish something collectively that they could not accomplish separately – they make a contribution to society, a phrase which sounds trite but is fundamental.” – David Packard, late co-founder of Hewlett-Packard
Whether legal persons should be able to get protection of their substantial human rights, is up for debate. Several scholars argue that there is no base for claims that a corporate person should be thought of as essentially the same as a human person. Other scholars argue that there is no clear reason to exclude companies. These two viewpoints can be defended with different arguments.
3.1 Exclude legal persons
The first argument why human rights cannot apply to companies is because of the conceptual mismatch.68 Companies are manifestly not human beings. In the classical liberal understanding of human rights individuals need protection from governmental excesses.69 Companies simply do not have the same vulnerabilities as bodies of human beings.70 They cannot be tortured the same way human beings can and they cannot enjoy all the same economic or cultural rights that human beings can. For example they cannot get educated like human beings. They are artificial entities with no inherent ability to suffer harms associated with human rights violations.71
Another argument often used is that granting human rights to companies creates an uneven result. (Multinational) companies are blamed to infringe human rights of individuals, but
68 M. Emberland, supra note 36 p. 27 69 Idem. p. 25 & 28
70 A. Grear, ‘Challenging Corporate “Humanity”: Legal Disembodiment, Embodiment and Human Rights’
HRLR 7 (3) 511, 2007, p. 520
71 M. K. Addo, ‘The corporation as a victim of human rights violations’ in Michael K. Addo, Human rights
often escape accountability.72 It seems ironic that they can protect their own economic
interests by using the same human rights as they violate.73 Corporate accountability is a challenge for the international community and states. Multinational companies often operate outside of national reach on a supra-state level which creates disparity of power between the state and the company. Granting human rights protection to companies could enhance their already formidable powers.74 By allowing companies to be victims of human rights violations, there is a risk that the focus on human interests will shift to the protection of the commercial interests of companies.75
The disparity in power leads to another fear. If companies start framing all their problems with state actions and legislation in human rights terms, the human rights courts could end up with more work than they can handle.76 The work caseload may be augmented, which is already problematic at the IACtHR due to a lack of funds.77 This argument presumes that a corporate actor is by definition litigious and powerful at that, however this does not coincide with realities of the Strasbourg jurisprudence.78 In only 41 of the 993 judgments of the ECtHR in 2016 a legal person was an applicant.79 This is only 4%.
A last argument to exclude companies from the protection of international human rights treaties is that they can be protected via other means. One option is that the countries where they are incorporated protect them. Legal persons only exist because of domestic law; domestic law should also be the only source of their rights. Another is through the natural persons comprising the company.
72 A. Grear & B.H. Weston, ‘The Betrayal of Human Rights and the Urgency of Universal Corporate
Accountability: Reflections on a Post-Kiobel Lawscape’, Vol 15 issue 1 Human Rights Law Review, 2015 p. 43-44 https://doi.org/10.1093/hrlr/ngu044 (Accessed 10 July 2017)
73 D. Millon, ‘Human Rights for Corporate Persons’ The Journal of Things We Like (Lots) 2015
http://www.heinonline.org/HOL/Page?handle=hein.journals/jotwell2015&div=144&start_page=[370]&collectio n=journals&set_as_cursor=1&men_tab=srchresults (Accessed 14 June 2017)
74 U. Baxi, The Future of Human Rights, New Delhi, Oxford University Press India, 2008, p. 254-255
75 T. Isiksel ‘The Rights of man and the Rights of the Man-Made: Corporations and Human Rights’ Hum.Rts.Q.
vol. 38 no 2, 2016 pp 294-349 https://muse.jhu.edu/article/617742/pdf (Accessed 12 June 2017) p. 298
76 M. Emberland, supra note 36, p. 30
77 A. Dulitzky, ‘The Inter-American Human Rights System Fifty years Later: Time For Changes’ Quebec
Journal Of International Law (Special Edition), 2011
https://www.sqdi.org/wp-content/uploads/HS_2011_Dulitzky.pdf (Accessed 17 June 2017), p. 133
78 M. Emberland, supra note 36 p. 29-30
79 I excluded political parties from the scope of legal persons for my search. I looked at the judgments of the
3.2 Include legal persons
Several scholars argue in favour of human rights belonging as much to human beings as to companies.80
The classical argument is the Hohfeldian point that ‘transacting business under the forms, methods and procedure pertaining to so-called corporations is simply another mode by which individuals or natural persons can enjoy their property or engage in business’.81 This
argument assumes that a company is only an extension of (a group of) humans.82 ‘Corporations are artificial legal entities that are organised, operated by and for the benefit of human beings’.83 This interchangeability between a company and the humans forming it is not straightforward.84 The separation between the legal person and the natural persons behind it is the exact rationale for the concept of legal persons. Companies as legal persons have their own rights and duties under domestic law and can easily change ownership independent from the group of persons behind it.
Another argument in favour of including companies is that by explicitly including them in the human rights system, it is possible to involve them to become responsible, thereby answering the problem of accountability of companies.85 Addo calls this the ‘double edge value of
human rights’. By recognizing their rights, companies would need to take on the duties resulting out of human rights conventions.86 This argument can be countered by
acknowledging that expecting companies to take on duties to improve human rights of natural persons seems naive. Companies are considered to be primarily motivated by economic reasons, and sincerity or solidarity are not assumed characteristics of companies.87
There is an asymmetrical aspect in the human rights discourse, not only in the disparity in power between individuals and companies, but also between the rights and duties of public and private entities. Public entities, such as states, have duties, while private persons have rights. The capability of protection does not dependent on an equivalent human rights
80 U. Baxi, supra note 74, p. 253
81 W.N. Hohfeld, ‘Nature of Stockholders’, Individual Liability for Corporation Debts’, Colom.L.Rev. Vol IX
no 4, 1909, p. 288
82 A. Grear, supra note 72, p. 518 83 M.K. Addo, supra note 73, p. 188 84 A. Grear, supra note 72, p. 517 85 M.K. Addo, supra note 73, p. 192 86 Idem., p. 193
responsibility for the same entity.88 If the rationale for human rights is protection from
arbitrary state interference, it does not matter which private person is protected. Also, protecting companies will, directly or indirectly, benefit the entire system, since it will lead to more protection against state interference.89
When the access to human rights is restricted for companies, several substantive rights might become vulnerable such as the freedom of association, the right to equality and non-discrimination and the right to judicial access.90 Excluding legal persons from being a ‘person’ can lead to inequality, for example when an individual running a business as an individual can get protection, but an individual running a business with the use of a legal person cannot.91
3.3 Conclusion
In short, several reasons can be given to include or exclude companies from human rights protection. Human rights are there to protect human beings and not the economic interest of companies. In a time where multinational companies seem to be able to disadvantage individuals on a large scale it seems unfair that they can get international protection when
they are being disadvantaged. However, the international accountability possibilities are just
not similar for private parties and states. Individuals can also not be held accountable for several human rights violations.92 Also, companies are an extension of the individuals behind them. It would also be unfair if the person that did not set his business up as a legal person, would be able to get protection, but the individual who created a legal person to run his business would not. Bearing in mind that human rights were created to protect against governments, it should not matter which private party gets protected. Keeping all these arguments in mind, the next part will look at the preambles of the conventions, travaux preparatoires and other relevant documents to answer the question of why has the pendulum swung one way in Europe and another in the Americas regarding the possibility for companies to claim victim status.
88 M. Emberland, supra note, 37 p. 31 89 U. Baxi, supra note 74, p. 257
90 R.F. Nuñez Marín, ‘La persona jurídica como sujeto de los Derechos Humanos en el Sistema Interamericano
de Derechos Humanos’Perspectivas Internacionales Vol. 6 No.1, 2010
http://perspectivasinternacionales.javerianacali.edu.co/pdf/6.1-07.pdf (Accessed 14 June 2017) p. 213-216
91 U. Baxi supra note 74, p. 253
92 Unless it concerns the most severe international crimes such as genocide, war crimes, crimes against humanity
4. The Difference Explained
Corporations have neither bodies to be punished, nor souls to be condemned; they therefore do as they like. - Edward Thurlow, 1st Baron Thurlow
The second chapter examined the difference between the Inter-American system and the European system regarding the human rights protection of legal persons. This chapter will give an indication of the reasons of the European and American states for their choices by looking at the aim and history of the treaties, the travaux preparatoires and the interpretation by the judicial bodies.
4.1 European System
The aim of the CoE is to achieve greater unity between its members and that aim is to be pursued by the maintenance and further realisation of human rights.93 After the Second World
War, the European states resolved to protect individuals against abusive governments and prevent the atrocities committed in the war.94 The protection of the common heritage and
facilitation of economic and social progress is closely linked with the project of the European Union.95
The drafters of the ECHR always intended to include corporations within the Convention’s protective confines.96 The earlier version of the ECHR contained a right of petition to a court of human rights for ‘any natural or corporate person’.97 Why this protection was implemented does not become clear from the travaux preparatoires.98 There was certainly a degree of discussion. The, at that time socially oriented, Brits were the most vocal opponents of legal persons, and more broadly, individuals being able to submit an application. It would lead to unwanted situations where companies could too easily frustrate the policies of their governments. To appease the British opposition the protection of the rights to property was
93 Preambles ECHR and Statute of the Council of Europe, opened for signature 5 May 1949, London, ETS No.
001 https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680306052 (Accessed 14 April 2017)
94 B. Rainey, E. Wicks and C. Ovey, Jacobs, White & Ovey: The European Convention on Human Rights,
Oxford, University Press, 2014, p. 4
95 The Council of Europe, ‘The Council of Europe and the European Union’ [webpage]
http://www.coe.int/en/web/portal/european-union (Accessed 11 July 2017)
96 W.H.A.M. van den Muijsenbergh & S. Rezai supra note 34, p. 48 97 M. Emberland, supra note 36, p. 35
postponed, but individuals would be able to apply to the ECioHR.99 Two years later the right
to property was added via Protocol no. 1.
The human rights system of Europe might signify a particular human rights ideology which differs from other international treaties for the protection of human rights.100 It corresponds with the values of the states that drafted the ECHR, which were at the time to avoid another war and to protect against communism.101 The values of liberalism imply a system based on
free enterprise.102 The ECHR is a European liberal project.103 The underlying value system, as expressed in the treaty’s preamble, focuses on a respect for individual dignity, democracy and the rule of law.104 Human rights do not require protection mainly because of the value of human beings, but they are used to achieve the overall goal of peace, unity and justice in Europe.105
As Emberland reasons in his book, the strong emphasis on democracy in the preamble implies a link with the core values of a capitalist system.106 In a capitalist system, corporations have a logical place. Private ownership is indispensable for democracies. Another value of the European states is the rule of law, which also implies a role for companies. Correlative to the freedom and rights of private entities, such as companies, the government is subjected to law in order to prevent arbitrary exercise of power.107
The ECtHR has based its reasoning often on these values to advance human rights protection in a company friendly manner.108 The ECtHR has confirmed that it sees it as its task to not only decide on those cases brought before it, but to ‘elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the
99 M. Robertson, Collected Edition of the Travaux Préparatoires vol 2, The Hague, Martinus Nijhoff, 1975, p.
192-194 Mr Nally
100 M. Emberland, supra note 36, p. 32 101 B. Rainey et al, supra note 94, p.1 & 4 102 M. Emberland, supra note 36, p. 49 103 Idem, p. 6
104 B. Rainey et al, supra note 94, p. 5
105 P.H. Van Kempen,. ‘Human Rights and Criminal Justice Applied to Legal Persons. Protection and Liability
of Private and Public Juristic Entities under the ICCPR, ECHR, ACHR and AfChHPR’ EJCL Vol. 14.3. 2010 http://www.ejcl.org/143/art143-20.pdf (Accessed 12 June 2017) § 2
See the application of this for example in Niemietz v Germany App no 13710/88 (ECtHR, 16 December 1992) § 29, 30
106 M. Emberland, supra note 36, p. 42
107 Van den Muijsenbergh et al. supra note 34, p. 58
108 For example by including business premises in the term ‘home’ in Société Colas Est and Others v France,
engagements undertaken by them as Contracting Parties’.109 The protection of corporate
claims can create a ripple effect of human rights observance benefitting the entire society.110 By determining individual cases, the general standards of protection can be raised in the common interest.111 The principle of effective interpretation is used to render human rights practical and effective for the applicant.112
4.2 Inter-American System
The Organisation of American States (OAS) was created by the American states to achieve an order of peace and justice, to promote solidarity, to strengthen collaboration and to defend sovereignty, territorial integrity and independence.113 The preamble of the ACHR explicitly states that 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. The IACtHR connects the protection of the fundamental rights of human beings with the pro persona principle.114 Human beings are centralized in the human rights system. The norms of human rights treaties should be interpreted as comprehensive as possible and in case of doubt the most protective norm for the person must be adopted. In the European system the human centrality is also recognized, but broadened to include other private entities, such as companies.115 The Inter-American system only favours persons when they are human beings.
The preparatory works for the ACHR are mostly silent on legal persons. When looking at the drafting of the ACHR the IACtHR observed that ‘during the preparatory work the words “person” and “human being” were used without the intention of making a distinction between the two terms.’116 At the conference in 1969 after a short exchange of views, article 1 paragraph 2 was unanimously approved as ‘person means every human being’.117 The matter
109 OAO Neftyanaya Kompaniya Yukos v Russia on Admissibility App no 14902/04 (ECtHR 29 January 2009 )
2017 § 442
110 M. Emberland, supra note 36, p. 58
111 OAO Neftyanaya Kompaniya Yukos v Russia on Admissibility supra note 109, § 442 112 Artico v Italy App no 6694/74 (ECtHR, 13 May 1980) § 33
113 Preamble Charter of the Organization of American States 114 Corte Interamericana de Derechos Humanos, supra note 2 § 42
115 V. de Oliveira Mazzuoli, ‘ The Pro Homine principle as a Fundamental Aspect of International Human
Rights Law’ Journal of Global Studies vol. 17, 2016 http://dx.doi.org/10.20889/M47e17003 (Accessed 12 July 2017) p. 3-4
116 Artavia Murillo et. al. v Costa Rica Preliminary Objections, Merits, Reparations and Costs Ser. C No. 257
(IACtHR, 28 November 2012) § 219
117 OAS, Conferencia Especializada Interamericana Sobre Derechos Humanos san José, costa Rica, 7-22
Noviembre 1969 Áctas y Documentos OEA/Ser.K/XVI/1.2
did not seem to be an issue for the states when drafting the ACHR. It was clear to them that human rights were for human beings only.
The history of the southern American nations since 1960s has been radically different from the European. The human rights system emerged in a political context of dictatorships and repression of opposition.118 Gross human rights violations took place in the Americas. The main issues regarded the personal integrity of humans such as forced disappearances and torture.119
In a number of Inter-American jurisdictions legal persons can be holders of some fundamental rights, but there is no consensus between the American states on this issue.120 It cannot be assumed that the American states accept that legal persons can be victims of human rights abuses under the regional ACHR, simply because some of them do so in their national jurisdictions.
What is interesting is that indigenous groups and trade unions deserve, according to the IACtHR, a different treatment from companies although all can be seen as organised groups. Indigenous groups and trade unions are more explicitly protected than in the European system.121 The IACtHR not only considers the individual members of the unions and communities as beneficiaries of human rights protection under the ACHR but also the community or union as such.122 Certain rights of indigenous and tribal communities need to
be exercised collectively and have collective consequences.123 Indigenous organisations and labour organisations represent the carriers of human rights, while in companies there is a separation between the shareholders and the company in the form of the corporate veil.
118 D.J. Harris and S. Livingstone.,supra note 44, p. 2
119 C. Grossman, ‘The Inter-American System of Human Rights: Challenges for the Future’ Indiana Law Journal
Vol. 83 Issue 4, 2008 http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1268&context=ilj (Accessed 12 July 2017) p. 1268
120 Corte Interamericana de Derechos Humanos, ‘Solitud de opinión consultiva sobre la interpretación y alcance
del Artículo 1.2 (Artículo 1, Párrafo Segundo) de la Convención (Personas jurídicas) realizada el 28 de marzo de 2014: Resumen de observaciones a la solicitud’ Serie A No 22, 2014
http://www.corteidh.or.cr/docs/opiniones/resumen_observaciones_seriea_22_esp.pdf (Accessed 14 June 2017) p. 18-19 & 23 In Colombia, Peru and Mexico.
121 P. Kovács, ‘Indigenous Issues Under the European Convention of Human Rights, Reflected in An
Inter-American Mirror’ The George Washington International Law Review, v.48, no.4, 2016, p. 805
122 Corte Interamericana de Derechos Humanos supra note 2 § 74
123 S.C. Mejia & R.A. Van Dalen, ‘Do Human Rights Belong To Humans Exclusively?’, Blog DPLf Justicia en
las Américas [webblog] https://dplfblog.com/2016/10/27/do-human-rights-belong-to-humans-exclusively/ (Accessed 14 June 2017)
4.3 Comparison
While the difference between the European and American systems is clear, the reason why this difference exists is opaque. The travaux preparatoires do not contain explicit reasons to include or exclude companies from being victims. It simply was not seen as an issue that was worth discussing, maybe because all countries agreed, or it was overlooked as posing a problem for the future.
Looking at the broader context of the treaties several aspects can be noted. The organizations were set up with similar goals. Both organizations aim to strengthen peace and security and protect individuals against their governments. The strong emphasis on the characteristics of humans in the ACHR preamble can be seen as one reason for the difference between the ECHR and ACHR. Both conventions centralize persons, but in the Inter-American system this is limited to human beings.
Legal persons are established by the law of the place where they are incorporated. How can they then have rights that transcend the legal sphere of national states? The fact that legal persons can have rights beyond the national domain might be more acceptable for European states for a different reason. The European states have more experience with a certain amount of sovereignty being transferred to a supranational entity, the European Union. Allowing companies to claim protection against their governments on a regional or international level is unwanted by many countries.124
This abstraction of rights beyond domestic jurisdiction might even be traced back to the Age of Reason in Europe. Law is conceived of in the West as a discourse of reason. Reason is regarded as transcending bodily functions. The disconnecting of the physical body and the abstract person results in the situation where in the field of law, the legal subject can exist without having a ‘body’.125 Human rights as well are placed in this discourse of abstract legal
subjects, even if in practice they are connected to individuals. Because of the abstraction of personality, it makes sense that this abstraction can also get human rights protection.
124 Not only the American countries, as is visible from the refusal of Russia to pay the damages awarded to the
shareholders by the ECtHR. N. Buckley,’Moscow Should Not Pay €1.9bn Damages Awarded By European Human Rights Court’ Financial Times, 19 January 2017 https://www.ft.com/content/e2bc9f30-de5b-11e6-86ac-f253db7791c6 (Accessed 16 June 2017)
The focus on the values of liberty, democracy and rule of law in the European context might also indicate a reason behind the difference. Human rights are intertwined with capitalism, the driving source in liberal thinking. In the liberal system, first rules were developed necessary for the regulation of capitalist production. Only later civic rules emerged, such as civil and political rights, protecting human beings from interference in their personal life and giving them a voice.126
It is not that the Inter-American system is not based on democracy or reason, just that is less clearly linked with the European stronghold of liberal capitalism, democracy and reason. The Americas have known, especially in the Southern part, their fair share of regimes by leaders who had less regard for democracy. While the majority of jurisprudence of the ECtHR concerns the right to a fair trial, the first cases of the IACtHR dealt with the more bodily protection of humans.127
The difference in size of the bodies can also be mentioned as an explanation for the difference. The idea of the litigious powerful company might have played a role in excluding them from protection. The IACioHR and IACtHR each only have 7 members, the ECtHR at the moment has 47 judges.128 By excluding companies, there was less risk that they might overflow the work of the judicial bodies.
The reason why the IActHR does not give a different application to the ACHR text is first because they would need to be very activistic to completely ignore the text the states agreed to, including the explicit mention of persons meaning human beings. The IACtHR would need to expand the text to an unreasonable extent. Second the IACtHR and the OAS need to be careful not to push the states too far into accepting things they never signed up for. Otherwise the states might withdraw from the ACHR or leave the OAS, like Venezuela is planning to do.129
126 C. Douzinas, ‘The End(s) of Human Rights’ MULR 26, 2002, p. 452
127 40% of the violations found by the Court have concerned Article 6 of the Convention. European Court of
Human Rights ‘Overview 1959-2016 ECHR’
http://www.echr.coe.int/Documents/Overview_19592016_ENG.pdf (Accessed 5 juli 2017), p. 6
128 European Court of Human Rights, supra note 19, and articles 34 and 52 ACHR
129 N. Gallón, S. Pozzebon & E. McKirdy. ‘Venezuela Says it Will Split From OAS As Unrest Continues’ CNN
27 April 2017 http://edition.cnn.com/2017/04/27/americas/venezuela-leaving-oas/index.html (Accessed 14 June 2017)
Actions against companies can affect the human rights of individuals behind these companies. The fact that companies are not right holders does not mean that individuals are completely unprotected. The next chapter focuses on other ways the natural persons involved in companies are being protected.
5. Protecting Individuals Behind Companies
“Expect the best, prepare for the worst.” - Muhammad Ali JinnahThis chapter revolves around the question whether legal entities can find protection through stakeholders in or behind them.130 The second part focuses more on the question what the effect is of the difference in granting human rights protection to legal persons in the particular case of Yukos. Does it result in a different level of protection?
Human beings are the reality behind a company.131 Legal entities can be the means of exercising certain rights, such as the right to property and the freedom of expression. In certain circumstances it can be possible for the natural persons behind legal entities to file a complaint and obtain protection under the European and the Inter-American system.
Employees can for example claim to be victims of an alleged violation of article 10 ECHR. A good example is the case of Groppera Radio AG v Switzerland. Despite the fact that the employees of the company acted from within the company, they had a direct interest that needed to be protected. It was a matter of their job security as journalists and therefore they were directly affected by the actions of the State, in this case Switzerland.132 This was also the case for the journalist in the Marcel Granier v Venezuela case at the IACtHR.
5.1 The indirect protection of legal persons through their shareholders
Shareholder rights can be divided into two types. The first set concerns specific direct rights granted by domestic legislation, such as the right to dividend, the right to attend shareholder meetings and including shares in the right to property.133 The other set of rights concern the protection shareholders seek when their interest in the company is affected.134 Here the separate corporate personality might pose a problem, since the claimant is an individual but the nature of the issue lies within the corporate sphere.135 To get protected in this case, there
130 P.H. Van Kempen, supra note 105, p. 7
131 Barcelona Traction, Light and Power company, Limited (Belgium v Spain) (Judgment) ICJ Rep 3 (1970), 5
February 1970, § 45
132 Groppera Radio AG v Switzerland supra note 62, § 46-51 133 Barcelona Traction, supra note 131 § 47
134 M. Emberland, supra note 52, p. 264 135 Idem. p.265
must be some form of identification and piercing of the veil. Piercing the veil entails disregarding the separate corporate personality.
Despite the close connection between companies and the legal persons behind them, a corporation is legally distinct from its shareholders. This doctrine of separation of personality was confirmed in the Barcelona Traction, Light and Power Company Limited case of the International Court of Justice (ICJ).136 When discussing the implications for shareholders, the
ICJ stated that: ‘Notwithstanding the separate corporate personality, a wrong done to the company frequently causes prejudice to its shareholders. But the mere fact that damage is sustained by both company and shareholder does not imply that both are entitled to claim compensation.’137
The ICJ held that a diplomatic claim may not be brought on behalf of a shareholder where ‘an act directed against and infringing only the company's rights does not involve responsibility towards the shareholders, even if their interests are affected’ except in exceptional circumstances such as when a corporation ceases to exist.138 Thus, the ICJ opinions that ‘when a shareholder’s interests are harmed by an act done to the company’, it is the company that should undertake action and not the shareholders.139
5.1.1 European System
Similar to the reasoning of the ICJ, the ECtHR states that when it is possible for a company to apply, the company should take action, not the shareholders.140 The reason is that ‘an act infringing only the company’s rights does not involve responsibility towards the shareholders, even if their interests are affected.’141
In principle, shareholders can only claim victim status and ask for human rights protection when they are directly and personally affected in their human rights by the state’s actions or omissions.142 Only in exceptional circumstances will the ECtHR disregard the separate legal personality of a company and can the ‘veil be pierced’ for the benefit of shareholders who
136 Barcelona Traction, supra note 131 § 41 137 Idem. § 41
138 Idem. § 46 139 Idem. § 44
140 Agrotexim and Others v Greece App no 14807/89 (ECtHR, 24 October 1995) § 71
141 Olczak v Poland (Final decision As To The Admissibility) App no 30417/96 (ECtHR 7 November 2002) §
59 and 62
would otherwise be barred from ECHR protection.143 These circumstances can be categorized
into the impossibility exception144 and the vehicle approach.145
In the case of Agrotexim and Others v Greece the ECtHR had to decide ‘whether in light of the separate personality between a company and its shareholders, and in the event of the company itself still being in existence, its shareholders could claim the benefit of convention rights arising from actions affecting the company’. In this case the company was in the process of liquidation. The ECtHR established that piercing the corporate veil will be justified only ‘where it is clearly established that is impossible for the company to apply to the convention institutions through the organs set up under its articles of incorporation or through its liquidators’.146 In this case, it was not established that it would have been impossible to apply to the convention institutions.147
The vehicle approach was set out in the case of Pine Valley Developments LTD and others v Ireland.148 The ECtHR makes the observation that the companies were ‘no more than vehicles’ through which the sole beneficial shareholder and director proposed to implement the development. ‘It would be artificial to draw distinctions between the three applicants as regards their entitlement to claim to be victims of a violation.’149 This also applies if two brothers are the sole co-owners of a family business.150
Shareholders under the European system can therefore not only be protected when they are directly affected in their shareholder (property) rights, but also in two exceptional circumstances. This only happens in exceptional circumstances because the companies themselves are expected to protect their human rights interests since companies can be victims in the European system.
According to the ECtHR the requirement of exhaustion of domestic remedies ‘should be applied with a certain degree of flexibility and without excessive regard for matters of
143 Emberland, supra note 36, p. 74 144 Idem. p. 95
145 Idem. p. 99
146 Agrotexim and Others v Greece, supra note 140 § 66 147 Idem. § 68
148 Pine Valley Developments LTD and Others v Ireland App no 12742/87 (ECtHR, 29 November 1991) 149 Idem. § 42
