7
23.
To support its argument, the State invokes the practice of the Inter-American
Commission with regard to the interpretation of Article 1(2) of the Convention and
cites the following two passages, among others, extracted from statements made by
the Commission:
[t]hat the Preamble to the American Convention on Human Rights and also the
provisions of Article 1(2) establish that ‘for the purposes of this Convention, “person”
means every human being’ and, therefore, the system of natural persons and does not
include legal entities [... c]onsequently, in the inter-American system, the right to
property is a personal right and the Commission has authority to protect the rights of an
individual whose property is confiscated, but does not have jurisdiction over the rights of
legal entities, such as companies, or banking institutions, as in this case7.
[…] according to the second paragraph of the norm transcribed above [Article 1], the
person protected by the Convention is ‘every human being’ [....].
Hence, the
Commission considers that the Convention grants protection to natural persons,
excluding legal entities from its sphere of application, because they are legal fictions and
lack real material existence8.
24.
For the time being, it will be useful to accept the interpretation suggested in
the passages cited above and the consequences it would have. According to this
opinion, a civil or commercial company that suffered a violation of its constitutional
rights, such as the inviolability of defense in a lawsuit or the impunity of its
correspondence, would be unable to invoke Article 25 of the Convention merely
because it was a legal entity. Similar examples could be mentioned with regard to
Articles 10 and 24 of the Convention, among others.
25.
It is also worth examining Article 21 of the American Convention with regard
to private property, which is the subject of this case. According to the interpretation
suggested by Argentina, which the Commission appears to share, if a landowner
acquires a harvesting machine to work his fields and the Government confiscates it,
he would be protected by Article 21. But if, instead of a landowner, it was a case of
two poor farmers who formed a company to buy the same harvester and the
Government confiscated it, they would not be able to invoke the American
Convention because the harvester in question would be owned by a company. Now,
if these same farmers, instead of constituting a company, bought the harvester in
co-ownership, the Convention could protect them because, according to a principle
that goes back to Roman law, co-ownership does not constitute a legal entity.
26.
All legal norms always refer to human conduct and describe it as permitted,
prohibited or obligatory. When a legal norm attributes a right to a company, it
presumes a voluntary association of persons who establish a joint capital fund to
collaborate in operating a company in order to obtain individuals benefits, by sharing
the profits. The law offers the individual a wide range of alternatives to regulate his
relations with other individuals and to limit his responsibility. Thus, there are
general partnerships, corporations, limited responsibilities, limited partnerships, etc.
In any case, this organized union allows for the coordination of individual efforts in
order to attain a greater common goal. Accordingly, a legal entity that is different
from its components is constituted; this, in turn, establishes a capital fund, which
presumes a movement of things or rights from the patrimony of the partners to the
company, introducing limits in the responsibility of these partners towards third
7
Report No. 10/91 of II.22.1991, Banco de Lima – Peru, considering 1 and 2.
8
Report No. 39/99 of III.11.1999, Mevopal, S.A.-Argentina, para. 17.