International Regulatory Enforcement (PHIRE)
The Inter-American Court of Human Rights and the Gig Economy
By Jon Drimmer and Ignacio Boulin Victoria (Southern Lights Group)
Southern Lights Group is a human rights law firm based in Argentina.
As questions arise around the world regarding the legal treatment of independent contractors, a case before the Inter-American Court of Human Rights (the “Court”) may have important ripple effects on the rights of gig economy workers throughout Latin America. The gig economy has grown exponentially in Latin America, and the International Labor Organization (ILO) reports that most workers do not receive key benefits – including social security and health insurance. The Court, whose decisions are enormously influential and apply to 23 countries, is soon expected to issue an opinion on whether denying those types of benefits to independent contractors and other gig workers is a human rights violation that must be rectified by those adopting countries. The result, obviously, could be highly impactful.
The Inter-American Human Rights System and advisory opinions
The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights form the Inter-American System of Human Rights (the “System”). The System is located within the Organization of American States (OAS), a multilateral organization that includes every American state but Cuba. The System, among other things, interprets and resolves disputes under the American Convention on Human Rights (the “Convention”). The Convention applies to the 23 states that are signatories to it, creating obligations for those national governments and their subnational entities and organs to follow its terms.
Based in Washington, D.C., the Inter-American Commission has a broad mandate to promote respect for human rights in the Americas, including resolving complaints involving specific cases of human rights violations via its quasi-judicial organ, the Court. The function of the Court is to interpret and apply the American Convention, much as its sibling regional courts, the European Court of Human Rights and the African Court of Human and Peoples’ Rights, interpret their respective regional conventions. While the Inter-American Court generally resolves disputes between individuals, entities, or communities against states and can issue provisional measures, it also has an advisory function by which the Commission can request advisory opinions pursuant to Article 64 (1) of the Convention. According to this provision, the Inter-American Court must respond to inquiries made by OAS Member States or OAS organs regarding: (a) the compatibility of internal norms with the Convention; and (b) the interpretation of the Convention or of other treaties concerning the protection of human rights in signatory states.
In July 2019, the Inter-American Commission asked the Court for an advisory opinion concerning the obligations of States related to several aspects of labor rights. These included “trade union freedom, collective bargaining and strike, in the processes of design, construction and evaluation of norms and related public policies to work in contexts of changes in the labor market through the use of new technologies.” Specifically addressing certain aspects of the gig economy, the request recognizes the enormous influence technology has on the labor market. The Commission, obviously, felt that it was time to understand how human rights should apply to relevant employers and workers. This became clearer at hearings called by the Court, where the Commission asked the Court to establish standards to help the signatory states comply with their obligations. Further, various participants in the hearings, such as the Human Rights Commission of Mexico City and Brazil’s National Labor Prosecutor, pointed out the importance of protecting people who use digital platforms as a source of livelihood.
In most of the countries in the region, there is no explicit labor regulation related to workers in the gig economy, as the Economic Commission for Latin America and the Caribbean has highlighted. The opinion of the Court thus could result in a series of new regulations around Latin America, with associated challenges of coordinating consistency among them, along with consumer needs, human rights protection.
What will happen next?
The Court’s opinion will impact the laws of the 23 signatory states. We can expect that whatever rights, terms and conditions the Court determines must apply to these workforces will be integrated into national laws and regulations, and applied by domestic courts and administrative agencies. For instance, the Court may determine that gig workers, who often are treated as independent contractors and do not receive benefits, have a human right to form trade unions, health insurance, paid sick leave, disability insurance or retirement contributions. The Court's decision would oblige member States to adapt their domestic law to ensure that platforms operate in compliance with the mandates established by the opinion.
While a similar debate is occurring in the United States and elsewhere, the advisory opinion – which can be expected in 2021 – is worth watching given the Court’s broad impact and the potential for a sweeping impact in the Court’s interpretation of human rights norms.