Westphalian conception of States as the main, if not the only actors, is sufficient to meet
these challenges. Challenges that are plentiful, if we consider that they affect not only
sensitive aspects for our communities such as property- along with all the other implications
that the Court has considered, ranging from the right to water, food and the very survival of
their culture- but also their impact on health and social rights.
3.
In cases such as González Lluy v. Ecuador or Ximenes Lópes, the obligations of private
companies to provide public services were specifically addressed. A paradox: the private
sphere is instrumentalized to perform an eminently governmental task, without the possibility
of state support. In other words, the State leaves its public functions to the private sector,
but limits its own responsibility under the corporate shield, that is to say, the veil is not lifted.
At this point it is worth asking about the current validity of the corporate system existing in
all our countries, and how some of its rules are repeated as if they were really general
principles of law. The legacy of many of these rules comes from mercantilism and is the
product of the colonial era, 4 a legacy that Latin America is still struggling to leave behind.
When we examined the Case of the Hacienda Brasil Verde Workers v. Brazil, which concerned
85 workers whose exclusion and marginalization, as well as business interests, turned them
into slaves on a farm located in the State of Pará in Brazil, we identified a problem which, if
not generalized, is at least recurrent. A system whose stakeholders - public institutions and,
above all, private organizations - dehumanize and turn men and women, and often children,
into part of this machinery of capitalism, with no alternative opportunities for a decent life
project. As noted in the judgment, this situation placed them ‘‘in the last links of the supply
chains of a globalized economy,’’ 5 in which people no longer have consent or will. This case
brought about an important development: it considered the possibility of including modern
slavery under the traditional concept of slavery, as one of the jus cogens norms, which some
consider immovable, even though it no longer fulfills its objectives. This example shows us
that international law is and must be in constant development in order to address the most
current issues, especially from the perspective of international human rights law.
4.
Of course, the facts of the Hacienda Brasil Verde case, as well as those in the case of
the Workers of the Fireworks Factory, 6 also against Brazil, show us that such aberrant
practices of exploitation still persist in the twenty-first century. For a reading that reinforces
these affirmations, albeit still in the order of national justice, I invite you to review the case
and judgment in the case of the Furukawua Corporation in Ecuador. However, as Frantz Fanon
explains, in the end all forms of exploitation are identical because they are all applied to the
same objective: the individual. I agree with this point: the most significant part of
exploitation, as in other human rights violations, is the victim. The legal construct that is
created to protect his or her rights is, if not accessory, at least relevant for the real purpose,
which is reparation. That said, the case of the Miskito divers involves interactions between
different actors: the State, private companies and indigenous communities whose work was
a traditional practice that was later imposed as a market rationale. I will return to the point
of the stakeholders later, but I would like to reiterate that the forms of exploitation, as Fanon
points out, materialize in different ways, especially in the period in which we find ourselves
today, where labor is undergoing a substantive change. The international political economy is
mutating into digital processes where the new technologies are not only the tools but also the
object and result of labor. It is in this particular context, where capital and technology seem
to merge, and where the digital space has totalizing effects, that I have raised this issue in
4
Ratner, Steven R. “Corporations and Human Rights: A Theory of Legal Responsibility.” The Yale Law Journal 111,
no. 3 (2001): 443–545. https://doi.org/10.2307/797542.
5
Case of the Hacienda Brasil Verde Workers v. Brazil. Preliminary objections, merits, reparations and costs. Judgment
of October 20, 2016. Series C No. 318, para. 318
6
Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their Families v. Brazil. Preliminary
objections, merits, reparations and costs. Judgment of July 15, 2020. Series C No. 407
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