the State’s obligations in ensuring such rights when private companies and indigenous peoples
are involved, and to prevent the repetition of events such as those that occurred in this case.
A.
Preliminary consideration: corporate responsibility with respect to human rights
Prior to the analysis of the merits, and as a preliminary consideration, this Court
42.
considers it pertinent to recall that since its first judgments, it has emphasized that the first
obligation assumed by the States Parties under Article 1(1) of the Convention is to “respect
the rights and freedoms” recognized therein. Thus, the exercise of public authority has certain
limits which derive from the fact that human rights are inherent attributes of human dignity
and are, therefore, superior to the power of the State. Therefore, the protection of human
rights, particularly the civil and political rights set forth in the Convention, is based on the
affirmation of the existence of certain inviolable attributes of the individual that cannot be
legitimately restricted by the exercise of governmental power. There are individual domains
that are beyond the reach of the State or to which the State has but limited access. Thus, the
protection of human rights must necessarily include the concept of the restriction of the
exercise of state power. 36
43.
The second obligation of the State is to “ensure” the free and full exercise of the rights
recognized by the Convention to every person subject to its jurisdiction. This obligation implies
the duty of States Parties to organize the governmental apparatus and, in general, all the
structures through which public power is exercised, so that they are capable of legally
ensuring the free and full enjoyment of human rights. As a consequence of this obligation,
the States must prevent, investigate and punish any violation of the rights recognized by the
Convention and, moreover, must attempt to restore, if possible, the right violated and provide
compensation as warranted for damages resulting from the violation. The obligation to ensure
the free and full exercise of human rights is not fulfilled by the mere existence of a legal
system designed to make it possible to comply with this obligation --it also requires the
government to conduct itself so as to effectively ensure the free and full exercise of human
rights. 37
44.
In relation to the foregoing, this Court has established that the obligation of guarantee
extends beyond the relations between State agents and the persons subject to their
jurisdiction, and encompasses the duty to prevent third parties, in the private sphere, from
violating the protected rights. 38 Nevertheless, the Court has considered that a State cannot
be held responsible for all human rights violations committed by private individuals subject
to its jurisdiction. The erga omnes nature of the State’s conventional obligations to guarantee
human rights does not entail its unlimited responsibility for any act by third parties. Thus,
although an act or omission by a private individual has the legal consequence of violating the
rights of another person, this cannot be automatically attributed to the State; rather the
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 165,
and Rights to freedom to organize, collective bargaining, and strike, and their relation to other rights, with a gender
perspective (interpretation and scope of articles 13, 15, 16, 24, 25 and 26, in relation to articles 1(1) and 2 of the
American Convention on Human Rights; articles 3, 6, 7 and 8 of the Protocol of San Salvador; Articles 2, 3, 4, 5 and
6 of the Convention of Belem do Pará; articles 34, 44 and 45 of the Charter of the Organization of American States;
and articles II, IV, XIV, XXI and XXII of the American Declaration of the Rights and Duties of Man). Advisory Opinion
OC-27/21 of May 5, 2021. Series A No. 27. para. 107.
36
Cf. Case of Velásquez Rodríguez v. Honduras, supra, para. 166 and 167, and Advisory Opinion OC-27/21,
supra, para. 108.
37
Cf. Case of the "Mapiripán Massacre" v. Colombia. Judgment of September 15, 2005. Series C No. 134, para.
111, and 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, para. 117.
38
15