• Andy Symington

The Fireworks Factory case

Assessing horizontal state obligations in the business and human rights arena

The Inter-American human rights system has been a significant source of guidance on business and human rights issues in recent years, and Workers of the fireworks factory of Santo Antônio de Jesus and their family members v. Brazil represents an expansion of Court jurisprudence on these matters.

Revolving around a 1998 explosion that killed 60 people at a fireworks factory in an impoverished town in Bahia, the case has allowed the Court to partly clarify the nature and extent of horizontal state obligations in protecting American Convention rights from violation by companies, as well as confirming its new position on the justiciability of economic, social and cultural rights.

Unlike many prominent business and human rights tragedies, Fireworks Factory does not concern a large multinational but rather a small, ramshackle operation, where tents in fields housed workers toiling in highly unsafe, unhygienic conditions for minimal reward. Santo Antônio de Jesus is set in the Bahian Recôncavo, historically an agricultural zone worked by slaves and a place where 76.5% of the population self-identify as Afrodescendant (§59). The fireworks industry in Santo Antônio was characterised by informal and precarious working conditions with extremely low rates of pay. In the factory where the explosion occurred, workers received 42 US cents for every thousand fireworks they produced (§71).

All but one of those killed and injured in the explosion were women, a third of them under 18 (§75). The Court assessed breaches of several rights, including the right to life and to personal integrity, the rights of children, non-discrimination and judicial protection. The court considered the violation of the rights of the deceased and of the six people who survived the explosion, as well as of bereaved family members.

Despite the precarious conditions and makeshift nature of the factory, at the time of the explosion, it had licenses from the municipality and Army Ministry as well as a valid registration permit emitted three years earlier and due for renewal within a month of the incident. Nevertheless, the state recognised that it had failed to conduct any inspections on the factory (§78). This fact was key to the Court’s interpretation that Brazil had failed in its international legal obligations to protect American Convention rights.

As most scholars consider that companies are not directly bound by international human rights treaties, a key question in business and human rights is how far the state obligation to protect human rights from violation by non-state actors extends. These so-called horizontal obligations have been assessed by treaty bodies and human rights court judgements and can be roughly divided into two types: obligations of regulation and obligations of due diligence.

Key cases of the Inter-American Court have previously examined this issue. In Velásquez Rodríguez v Honduras the Court noted that lack of due diligence on a state’s part to prevent or respond to a rights violation by a third party can lead to direct responsibility, an interpretation later echoed in the Maastricht Guidelines and other instruments. In Kaliña & Lokono Peoples v Suriname the Court cited the UN Guiding Principles on Business and Human Rights (‘Guiding Principles’) as establishing both business and state duties and found that Suriname failed to comply with its horizontal human rights obligations by not conducting an impact assessment before approving a mining project. In Lhaka Honhat v Argentina, the Court reaffirmed that states were sometimes obliged to establish mechanisms that could monitor and inspect certain activities in order to protect human rights from actions by public or private actors. These precedents firmly establish the foundations for the Court’s findings in the Fireworks Factory case.

In its Osman v United Kingdom judgement, which assessed horizontal state obligations on the right to life, the European Court of Human Rights held that:

[I]t must be established […] that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. (§116)

This emphasises that horizontal due diligence obligations are often very context-specific and in many circumstances can only be effectively assessed on a case-by-case basis.

Though the Court did not cite this case, it noted the need to examine the specific circumstances to determine the extent of Brazil’s responsibilities (§117). By comparing the Fireworks Factory situation with violations of the right to health that it had previously pronounced on, the Court found that, due to the specific risks to life inherent in the fireworks industry, the state did have an obligation to regulate, supervise and inspect production of fireworks in order to prevent the violation of the rights of those who worked in the factories (§121, §149). Though the industry was in fact regulated, the latter obligations — those of due diligence — were not met. The Court found that this omission was a contributory factor in producing the explosion (§137), and thus represented a failure of the state to protect the right to life of those killed and the right to personal integrity of those who survived (§138).

The second key point of the case is that, in a continuation of its position expressed in Lagos del Campo v Perú, the Court devoted a lengthy section of the judgement (§155 to §174) to analysing the right to just and favourable conditions that guarantee safety, health and hygiene at work, deriving it from various Articles of the OAS Charter. It ruled that this right fell under Article 26 of the American Convention, which obliges states to progressively realise the economic, social and cultural rights set forth in the Charter. It therefore represents an important piece of jurisprudence concerning the justiciability of those rights in the Inter-American system. This decision was not unanimous: two judges agreed with Brazil that the Court did not have jurisdiction on this issue.

The Court went on to analyse discrimination. All but one of those killed in the explosion were women, most were Afrodescendant, and all were poor. The Court refers to its own jurisprudence in emphasising that states are obliged to ‘take positive measures to reverse or change discriminatory situations…This implies the special duty of protection which the state must exercise over acts and practices of third parties, which, when tolerated or acquiesced to, create, maintain or favour discriminatory situations’ (§186). While the case had been viewed by some as an opportunity to make a strong statement on gender inequality and its wider impact on human rights, the Court chose to consider gender alongside other factors. It identified that the victims of the explosion were ‘immersed in patterns of structural and intersectional discrimination’ (§197) and lacked other viable economic alternatives to working in a dangerous factory. The Court considered that the vulnerable situation of these workers increased the duties of the state towards them (§198), duties which the state had failed to carry out.

The Court also criticised Brazil for the lengthy period that had passed since the accident without any resolution in either criminal or civil processes and found that the state had violated the right to judicial protection (§247).

The sentence obliges Brazil to pay damages, to set up a system to regularly inspect fireworks factories, and to work with the community to develop a socioeconomic development plan for Santo Antônio. It also orders the state to report on the implementation and application of Brazil’s National Guidelines on Business and Human Rights.

It is noteworthy that the claimants had requested as part of the reparations that information about the case be published in a national newspaper, on a government website and on public television (§274-5). This emphasises that it is frequently of great importance to victims of company violations of human rights that their voices are heard. These are voices that, when a company is a bad actor and when a state fails to protect its citizens from precarious working conditions or to provide viable economic alternatives, are often unheard and are in the worst cases lost altogether.

Andy Symington

PhD candidate at UNSW Sydney

researching business and human rights with a particular focus on corporate engagement with rights norms in South America’s lithium industry

He is also an experienced and widely published freelance travel writer and journalist

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