The Inter-American Court of Human Rights and the Quest for Equality: The Fireworks Factory case

On 26 October 2020, the Inter-American Court of Human Rights (IACtHR) published its judgment in the Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their Families v. Brazil (Fireworks Factory case). The dispute concerned the Brazilian state’s responsibility for the events surrounding an explosion in a fireworks factory in the town of Santo Antônio de Jesus, in the north-eastern region of the country, on 11 December 1998. Sixty people died in the explosion, among them forty women and twenty children, and six survived. Brazil was held responsible for a series of violations related to its having failed to regulate, supervise, and address the factory’s extremely unsafe working conditions.

This entry will focus on the IACtHR’s findings concerning the right to equal protection of the law (Article 24 of the American Convention on Human Rights) and the respective reparations ordered—implementing a socioeconomic development program for the town’s inhabitants. Firstly, we will discuss the novel way in which the IACtHR interpreted the content of the right to equal protection. Then we will assess the intersection between the reparatory measure and obligations of progressive realization on economic, social, and cultural rights, and how this might impact the reparation’s effectiveness.

From equal protection to equality

Article 24 of the American Convention establishes that all persons are equal before the law and are entitled to equal protection of the law.

The IACtHR distinguishes this provision from the more general duty of non-discrimination under Article 1(1) of the American Convention in the following manner: if the discrimination refers to a substantive right guaranteed under the Convention, the breach concerns Article 1(1) in conjunction with said substantive right; if the discrimination refers to an unequal protection under domestic law or its application, the applicable provision is Article 24.

In the Case of the Hacienda Brasil Verde Workers v. Brazil, the IACtHR indicated that failure to adopt measures to reverse structural discrimination concerning individuals in particularly vulnerable situations engaged state responsibility (para. 338) but did not expressly link this situation to either Article 1(1) or Article 24. In the end, the IACtHR did not establish a breach of Article 24, limiting its findings to violations of Article 1(1) in relation to other provisions of the American Convention, and did not order any specific reparations to combat structural discrimination.

In the Fireworks Factory case, the issue of structural discrimination arose again, with a renewed emphasis on Article 24. For the IACtHR, this provision:

“requires the adoption of positive measures of promotion in favor of groups that have historically been discriminated against or marginalized.” (para. 199)

Accordingly, states must “provide individuals with the real possibility of achieving material equality.” Since Brazil had not reverted the situation of poverty and lack of opportunities faced by the population of Santo Antônio de Jesus, the IACtHR concluded the State had violated Article 24 and Article 26 in relation to Article 1(1) of the American Convention (paras. 203-204).

In mentioning Articles 26 and 1(1), the IACtHR stated that Brazil had failed to guarantee the exercise of the right to just and favorable conditions of work without discrimination. Nevertheless, the Court’s reasoning does not refer to the conditions of work in that fireworks factory compared to other factories or other occupations in general, but rather to the lack of opportunities for the town’s population to access other kinds of labor. Accordingly, the IACtHR’s rationale for finding discrimination in this case seems to focus on Article 24 and on a broader notion of equality under this provision.

The IACtHR’s reasoning seems to be premised on the understanding that if domestic law and its application do not provide tangible possibilities for a group of individuals to rise from poverty and achieve material equality, then the law (or its implementation) does not offer equal protection and is therefore contrary to Article 24. The state may not, for instance, hide behind the argument that domestic law does not provide a right to a certain standard of living: if individuals are unable to achieve a standard enjoyed by the rest of the population due to repeated discrimination against the former, the law needs to actively address that situation and provide all with at least equality of opportunities.

This way, IACtHR framed Article 24 as a general right to material equality regardless of the law. Indeed, in this part of the judgment, the IACtHR did not mention any Brazilian law that was being applied unequally. The Court’s reasoning was entirely directed to poverty as a factor leading to structural discrimination and to a lack of better labor opportunities, hence breaching the right to equality. This contrasts with previous cases, in which Article 24 was only found to have been breached when a specific domestic law had been applied discriminatorily (for instance, here and here), whereas discrimination relating to the enjoyment of a Convention right due to the victim’s economic conditions was framed under Article 1(1).

The IACtHR’s rationale was criticized by Judge Eduardo Vio Grossi (paras. 99-115), who considered that, by not linking the violation of Article 24 to a domestic law, and instead to a general situation of inequality and marginalization, the IACtHR had unduly expanded states’ obligations under this provision.

Indeed, the IACtHR’s interpretation takes the scope of the right to equal protection further than any other human rights body has done. Although the Human Rights Committee (HRC) has interpreted the comparable provision in Article 26 of the International Covenant on Civil and Political Rights (ICCPR) as encompassing equal protection in relation to rights not enshrined in the Covenant, such as socioeconomic rights, application of this rule has been limited to situations which the state’s domestic law provides unequal treatment, or its benefits are applied unequally. As such, the ICCPR provision has not been understood as creating an obligation for states to pursue general material equality or opportunities to socioeconomic equality, but merely to guarantee that, when the law grants some kind of protection or benefit, all can enjoy it equally. Similarly, the African Commission on Human and Peoples’ Rights has indicated that the right to equal protection under Article 3 of the African Charter related to the implementation of a specific law. Nor has Article 1 of Protocol 12 to the European Convention on Human Rights been interpreted so broadly as done by the IACtHR.

 Reparations and obligations of progressive realization

The IACtHR’s decision is undoubtedly commendable for seeking to tackle root causes of poverty and marginalization and to promote a meaningful improvement in the lives of the community of Santo Antônio de Jesus. It provides relevant considerations on intersectionality and the extent of the impacts structural discrimination has on people’s lives. However, the legal reasoning adopted by the IACtHR to ground its conclusions may create hurdles to the implementation of the reparations ordered. More specifically, the IACtHR’s focus on Article 24 as an obligation to ensure material equality may give insufficient regard to the progressive character of some related obligations concerning economic, social, and cultural rights.

On this point, it is important to clarify what we mean by progressive realization. All human rights require states to take both positive and negative measures for ensuring these rights. Positive measures for the realization of civil and political rights may have significant budgetary implications and may require time to be implemented. Taken in this sense, civil and political rights can be said to also require progressive realization.

Nonetheless, despite these practical concerns, states have the responsibility to immediately guarantee the end result of civil and political rights. While the state is still adopting measures to comply with its human rights obligations but has not achieved the concrete result required—an end to inhuman treatment in state-run facilities, a fair trial to all, among others—it is in violation of its obligations concerning the civil and political right in question. This was noted by the IACtHR when addressing the measures taken by Brazil to end inhuman treatment caused by overpopulation in a prison center in the state of Rio de Janeiro. Similarly, the European Court of Human Rights and the HRC have stressed that states cannot claim resources constraints to excuse themselves from responsibility for complying with their human rights obligations in cases involving civil and political rights. The fact that the reparation may be limited to ordering the state to finish its measures to the implementation of the right does not disqualify the state’s situation as a breach of human rights law.

On the other hand, the progressive character of some (but not all) obligations relating to economic, social, and cultural rights means that states are responsible for taking immediate steps towards the goal but not for the immediate achievement of this goal. Hence, if the state takes steps that are “deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant”, it is not in violation of the socioeconomic right in question even if the concrete result is yet to be achieved. It is to this sense of progressive realization we refer herein, concerning at what point the state can be deemed in compliance with its human rights obligations.

In the Fireworks Factory case, Brazil was ordered to design and execute a socioeconomic development program for the population of Santo Antônio de Jesus within two years of notification of the judgment (para. 289). The program’s focus should be to enable the town’s inhabitants to pursue other—and hopefully less precarious—professional occupations. With this in mind, the IACtHR indicated a series of measures this program should include, such as vocational training courses and actions to reduce school drop-out.

This kind of reparatory measure evidently touches on the content of socioeconomic rights such as the rights to work, an adequate standard of living, and education. Despite having mentioned Articles 1(1) and 26 in its conclusion, as seen above, the reasoning behind the IACtHR’s findings was centered on Article 24 as a right to material equality, without considering its practical relation to progressive obligations arising from the right to work. Consequently, the IACtHR ended up not addressing questions of progressive realization and available resources.

These questions are particularly acute in this case, as it is difficult to see improving access to more varied labor markets as an obligation of immediate effect. General Comment No 18 of the Committee on Economic, Social, and Cultural Rights (CESCR) indicates that states have a minimum core obligation to ensure:

“access to employment, especially for disadvantaged and marginalized individuals and groups, permitting them to live a life of dignity” (para. 31).

It would seem this minimum obligation was partially met in the case: the population had access to employment, even if in limited areas; what was left for the state was to ensure that this employment reaches minimum standards of safety so the individuals could live “a life of dignity“, which the IACtHR addressed in another part of the judgment (paras. 173-176). Enlarging this access to other employment opportunities appears to fall within the progressive realization realm.

This progressive character was effectively circumvented by the IACtHR’s exclusive focus on Article 24 when dictating the reparations. Such an approach not only creates the risk of imposing significant burdens on states without verifying whether they are in a position to accept such burdens, in terms of available resources, but also of leading to a backlash against the implementation of the IACtHR’s judgments (as it has happened regarding other matters decided by the Court).

The IACtHR’s lack of engagement with these concerns may also lead one to question the appropriateness of the reparation. One could inquire whether Brazil should not prioritize the use of its resources to achieve obligations of immediate effect in the realization of socioeconomic rights, both in the region and elsewhere, rather than engaging in a program aimed at the progressive development of the right to work. Or whether different measures of progressive realization should be taken in a program encompassing other towns in the region whose populations live in similar conditions.

Moreover, it is not clear whether considerations of available resources will play a role in evaluating whether the state complied with the reparation order and to what extent. Although the IACtHR indicated some parameters the socioeconomic program should follow, the Court must still assess whether they were adequately implemented, especially since, as noted in the judgment, previous governmental programs failed to produce any significant changes in the population’s lives. Knowing the IACtHR’s tendency to scrutinize states’ conduct regarding human rights, deference to domestic authorities’ assessments should not be expected. Should the IACtHR take into account limitations in the state’s resources, there is still the question of whether the Court will refer to the standard of reasonableness adopted by the CESCR in its complaints mechanism or advance a new standard entirely.

Conclusion

In its quest for furthering the enjoyment of all sorts of human rights, the IACtHR may not be entirely taking into account the specific legal framework in which each right is inserted and what this framework requires of states. The use of the right to equal protection as an all-catching obligation to eliminate marginalization and poverty resulting from structural discrimination effectively requires states to promote economic, social, and cultural rights without considering issues of progressive realization and available resources. This may result in unwillingness and even practical impossibility on the part of states in fully complying with the IACtHR’s reading of Article 24.

The IACtHR’s order that Brazil establishes a socioeconomic development program for the local population exacerbates these problems, especially given the lack of clarity as to what standards will be used to assess compliance with this order. Hopefully, the IACtHR will elucidate these matters during the implementation of the judgment and perhaps discuss the link between the measures ordered and the progressive realization of economic, social, and cultural rights. As an international body dealing with individual complaints for years, the Court certainly has room to contribute to these discussions and the development of a consistent reparations framework for violations of progressive obligations of socioeconomic rights.