Inter-American Court of Human Rights Case of The Miskito Divers (Lemoth Morris Et Al.) v. Honduras Judgment of August 31, 2021

INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF THE MISKITO DIVERS (LEMOTH MORRIS ET AL.) V. HONDURAS
JUDGMENT OF AUGUST 31, 2021
In the Case of the Miskito divers (Lemoth Morris et al.) v. Honduras,
the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the
Court”), composed of the following judges:
Elizabeth Odio Benito, President;

L. Patricio Pazmiño Freire, Vice President;
Eduardo Vio Grossi, Judge;
Humberto Antonio Sierra Porto, Judge;
Eduardo Ferrer Mac-Gregor Poisot, Judge;
Eugenio Raúl Zaffaroni, Judge, and
Ricardo Pérez Manrique, Judge;
also present,
Pablo Saavedra Alessandri, Secretary, and

Romina I. Sijniensky, Deputy Secretary,
in accordance with Articles 62(3) and 63(1) of the American Convention on Human Rights
(hereinafter, “the American Convention” or “the Convention”) and with Articles 31, 32, 63,
65 and 67 of the Court’s Rules of Procedure (hereinafter “the Rules”), delivers this judgment.
Table of contents
I. INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE ..................................... 4

II. PROCEEDINGS BEFORE THE COURT.............................................................................. 5
III. JURISDICTION ........................................................................................................... 6
IV. FRIENDLY SETTLEMENT AGREEMENT ........................................................................... 6
A. Friendly settlement agreement ....................................................................... 6
B. Observations of the representatives ................................................................ 7
C. Observations of the Commission ..................................................................... 7
D. Considerations of the Court ............................................................................ 7
V. FACTS ........................................................................................................................... 9
A. The Miskito indigenous people in the department of Gracias a Dios ................... 10
B. Underwater fishing by Miskito divers: working conditions, their effects and domestic
proceedings ...................................................................................................... 10
C. The situation of the victims .......................................................................... 13
VI. CONSIDERATIONS OF THE COURT REGARDING THE HUMAN RIGHTS VIOLATIONS
COMMITTED AGAINST THE VICTIMS ............................................................................... 14
A. Preliminary consideration: corporate responsibility with respect to human rights . 15
B. Right to life and personal integrity, rights of the child in relation to the obligations to
guarantee rights and the duty to adopt domestic provisions (Articles 4(1), 5(1) and 19 of
the American Convention in relation to Articles 1(1) and 2 thereof)
…………………………………………………………………………………………………………………………………..19
C. Right to work and to just, equitable and satisfactory conditions that ensure the
safety, health and hygiene of the worker, the right to health and social security, and to
equality and non-discrimination, in relation to the obligation of guarantee, and the duty
to adopt domestic provisions (Article 26 of the American Convention in relation to Articles
1(1) and 2 thereof) ............................................................................................ 22
C.1. General considerations on the content and scope of Article 26 of the American
Convention .................................................................................................... 22
C.2. Right to work and to just, equitable and satisfactory conditions that ensure the
health of the worker ....................................................................................... 23
C.3. Right to health and social security .............................................................. 27
C.4. Equality and non-discrimination ................................................................. 34
D. Other arguments ........................................................................................ 38
VII. ENDORSEMENT OF THE FRIENDLY SETTLEMENT AGREEMENT .................................. 38
VIII. REPARATIONS (application of Article 63(1) of the American Convention) ............. 39
A. Measures of restitution and satisfaction ......................................................... 39
A.1. Comprehensive and specialized medical and psychological care, including
rehabilitation treatment, for victims their families ............................................... 39
A.2. Educational scholarships for the victims, their children and grandchildren ....... 40
A.3. Program of productive projects .................................................................. 40
A.4. Housing for divers and their families........................................................... 41
A.5. Production and broadcast of a television documentary .................................. 41
A.6. Public act of acknowledgment of international responsibility, apology and
commitment to non-repetition .......................................................................... 42
A.7. Publication and dissemination of the judgment of the Inter-American Court .... 43
B. Pecuniary measures ....................................................................................... 43
B.1. Non-pecuniary damage ............................................................................. 43
B.2. Pecuniary damage.................................................................................... 43
B.3. Costs and expenses.................................................................................. 45
C. Guarantees of non-repetition .......................................................................... 45
C.1. Inclusion of Miskito divers and their families in existing social programs ......... 45
C.2. Measures to ensure adequate regulation, supervision and oversight of industrial
fishing companies in the Miskito territory ........................................................... 46
2
C.3. Strengthening the health system in La Mosquitia from the perspective of inclusive
social development ......................................................................................... 49
C.4. Public awareness campaign ....................................................................... 50
C.5. Exhaustive investigation of the facts, identification, prosecution and punishment
of all those responsible .................................................................................... 51
C.6. Undertake an exhaustive search to determine the whereabouts of the missing
victims .......................................................................................................... 51
C.7. Adopt structural measures to guarantee access to justice ............................. 51
C.8. Strengthen the education system in La Mosquitia ......................................... 52
C.9. Adopt measures to ensure the accessibility of all public institutions in La Mosquitia
.................................................................................................................... 53
D. Method of compliance with the payments ordered ............................................. 53
E. Monitoring compliance with the Agreement ....................................................... 54
IX OPERATIVE PARAGRAPHS .......................................................................................... 55
3
I.
INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE
1. The case submitted to the Court. On May 24, 2019, pursuant to Articles 51 and 61 of
the American Convention and Article 35 of the Court’s Rules of Procedure, the Inter-American
Commission on Human Rights (hereinafter “the Inter-American Commission” or “the
Commission”) submitted to the jurisdiction of the Inter-American Court case No. 12.738
“Opario Lemoth Morris et al. (Miskito divers)” against the Republic of Honduras (hereinafter
“the State” or “Honduras”). According to the Commission, the case relates to the State’s
alleged international responsibility for the violation of several rights to the detriment of 42
Miskito divers and their next of kin. The Commission concluded that the State is responsible
for the violation of the right to personal integrity of 34 Miskito divers (infra para. 28) who
suffered accidents as a result of deep dives that caused them decompression sickness. It also
considered that the State violated the right to life of 12 divers who died shortly after those
accidents. The Commission further concluded that these violations “were the result of the
State’s omissions and indifference to the problem of labor exploitation by fishing companies
and the performance of diving activities in dangerous conditions.” In addition, the Commission
considered that the right to life of seven Miskito divers was violated after the boat in which
they were traveling exploded, as well as that of a 16 year-old boy who disappeared while
working on a fishing boat. The Commission likewise concluded that the State is responsible
for the violation of the principle of equality and non-discrimination, given the multiple factors
of vulnerability of the divers. Finally, the Commission found that the State did not have
administrative, judicial and other mechanisms in place to respond adequately and effectively
to the violations indicated in the Merits Report. The Commission also established a violation
of the right to personal integrity of the next of kin of the alleged victims. The names of the
alleged victims in the instant case can be found in Annex 1 of this judgment.
2. Procedure before the Commission. The procedure before the Commission was as
follows:
a. Petition. On November 5, 2004, the Commission received a petition lodged by the

Asociación de Miskitos Hondureños de Buzos Lisiados (AMHBLI: Association of Disabled
Honduran Miskito Divers); Asociación de Mujeres Miskitas - Miskito Indian Mairin Asla
Takanka (MIMAT: Association of Miskito Women); and the Almuk Nani Asla
Takanka Council of Elders. On December 18, 2007, the Center for Justice and International
Law (CEJIL) was accredited as a co-petitioner.
b. Admissibility Report. On November 12, 2009, the Commission adopted Admissibility

Report No. 121/09.
c. Merits Report. – On May 8, 2018, the Commission issued Merits Report No. 64/18, in
accordance with Article 50 of the Convention (hereinafter “Merits Report” or “Report No.
64/18”).
d. Notification to the State. On June 25, 2018, the Merits Report was notified to the State,
which was granted two months to report on its compliance with the recommendations.
Subsequently, the Commission granted the State three extensions to report on its
compliance with the recommendations. The State did not request a further extension and
did not provide information on specific advances in compliance with the recommendations.
3. Submission to the Court. On May 24, 2019, the Commission submitted all the facts
and human rights violations described in Merits Report No. 64/18 to the jurisdiction of the
4
Inter-American Court and requested that it declare the international responsibility of the State
for the violations indicated therein and order measures of reparation. 1
4. Requests of the Inter-American Commission. The Commission asked the Court to

declare the State responsible for the violation of the rights to life, to life with dignity, to
personal integrity, to the rights of the child, to judicial guarantees, to judicial protection, to
work and to just, equitable and satisfactory conditions, as well as to health, social security,
and to the principle of equality and non-discrimination, contained in Articles 4(1), 5(1), 8(1),
19, 24, 25(1) and 26 of the American Convention, in relation to the obligations established in
Articles 1(1) and 2 of the same instrument. The Court notes with concern that more than
fourteen years have elapsed between the lodging of the initial petition before the Commission
and the submission of the case to the Court.
II.
PROCEEDINGS BEFORE THE COURT
5. Notification to the State and to the alleged victims. The submission of the case was
notified to Honduras and to the alleged victims on October 23, 2019.
6. Brief with pleadings, motions and evidence. On January 7, 2020, the Association of
Disabled Honduran Miskito Divers (AMHBLI), Miskito Indiang Mairin Asla Takanka (MIMAT),
Almuk Nani Asla Takanka (Council of Elders), the Equipo de Reflexión, Investigación y
Comunicación de la Compañía de Jesús en Honduras (Jesuit Reflection, Investigation and
Communication Team in Honduras ERIC-SJ), and the Center for Justice and International Law
(CEJIL) (hereinafter “the representatives”) submitted their brief with pleadings, motions and
evidence (hereinafter “the pleadings and motions brief”), pursuant to Articles 25 and 40 of
the Court’s Rules of Procedure. The representatives asked the Court to declare the State
responsible for the violation of the rights to equality and non-discrimination, life, personal
integrity, health, work and to work in just, equitable and satisfactory conditions, social
security, a pension, the obligation to provide special protection to a child, judicial guarantees
and judicial protection to the detriment of the alleged victims, and the right to personal
integrity of the victims’ next of kin. Finally, the alleged victims, through their representatives,
requested access to the Victims’ Legal Assistance Fund of the Inter-American Court
(hereinafter “the Legal Assistance Fund”).
7. Answering brief. On June 15, 2020, 2 the State presented its brief in response to the
submission of the case and to the pleadings and motions brief (hereinafter “answer” or
“answering brief”), in which it rejected the alleged violations and the requests for measures
of reparation presented by the Commission and by the representatives. In accordance with
Court Orders 1/20 of March 17, 2020 3 and 2/20 of April 16, 2020, 4 the Court suspended the
calculation of all the deadlines owing to the emergency caused by the COVID-19 pandemic.
Accordingly, the deadline for the submission of the State's response was extended.
1
The Commission appointed Commissioner Joel Hernández, Executive Secretary Paulo Abrão, and the Special
Rapporteur on Economic, Social, Cultural and Environmental Rights, Soledad García Muñoz, as its delegates. It also
appointed Silvia Serrano Guzmán, Erick Acuña Pereda and Luis Boub Cancho, lawyers of the Commission’s
Executive Secretariat, as legal advisers.
2
The State of Honduras appointed Lidia Estela Cardona Padilla, Nelson Gerardo Molina and Jacobo Cálix as its
agents in this case.
3
Available at: http://www.corteidh.or.cr/docs/comunicados/cp_18_2020.pdf
4
Available at: http://www.corteidh.or.cr/docs/comunicados/cp_28_2020.pdf
5
8. Public hearing. In the order of December 17, 2020, the President of the Court called
the parties and the Commission to a public hearing 5 to consider the merits and possible
reparations and costs, and to hear the final oral arguments and observations of the parties
and of the Commission, respectively.
9. Friendly settlement agreement. On March 25, 2021, prior to the public hearing, the
Court received from the State and the representatives a document dated March 24, 2021,
entitled “Friendly Settlement Agreement: Case CDH-10-2019 Lemoth Morris et al. (Miskito
divers) v. Honduras” (hereinafter the “friendly settlement agreement” or “the Agreement”),
signed by the representatives and the State, in which they requested its endorsement by the
Court. In addition, the parties asked the Court to suspend the current deadlines and the virtual
public hearing convened for April 28, 29 and 30, 2021. This request was admitted by the
President of the Court on March 30, 2021. The text of the Agreement can be found in Annex
4 to this judgment.
10. Observations of the Commission and the representatives. With regard to the State’s
request for the endorsement of the friendly settlement agreement, the representatives and
the Commission presented their respective observations on April 15, 2021.
11. Deliberation of the case. The Court began deliberating this judgment on August 30,
2021.
III.
JURISDICTION
12. The Inter-American Court has jurisdiction to hear this case pursuant to Article 62(3)
of the American Convention on Human Rights because Honduras has been a State Party to
the Convention since September 8, 1977, and accepted the contentious jurisdiction of the
Court on September 9, 1981.
IV.
FRIENDLY SETTLEMENT AGREEMENT
A. Friendly settlement agreement
13. The State accepted that the facts which form the factual basis of the friendly settlement
agreement, and therefore of its acknowledgment of responsibility, are those established by
the Commission in its Merits Report, which Honduras agreed to abide by. Based on this, the
State expressly acknowledged its responsibility for the violation of the rights to life, to life
with dignity, to personal integrity, to judicial guarantees, to the rights of the child, to equal
protection of the law, to judicial protection, health, work, social security, and to non-
discrimination (Articles 4(1), 5(1), 8(1), 19, 24, 25(1) and 26, in relation to Articles 1(1) and
2 of the same instrument) to the detriment of the alleged victims and their next of kin. 6 In
the agreement, the Honduran State also made certain representations and undertook to
comply with a series of reparations. Finally, the parties submitted a joint request for the Court
to analyze the content and scope of the rights of the American Convention that were affected
5
Cf. Case of Lemoth Morris et al. v. Honduras. Summons to a hearing. Order of the President of the Inter-
American Court of Human Rights, December 17, 2020. Available at:
http://www.corteidh.or.cr/docs/asuntos/lemoth_morris_y_otros_17_12_2020.pdf
6
In the Friendly Settlement Agreement, the parties recognize as victims the persons identified in the Single
Annex of Merits Report No. 64/18, who have been listed in Annex 1 of this Judgment.
6
by the activities of the extractive fishing industry in the Miskito territory and, in particular,
those derived from Article 26 of the Convention, in relation to Articles 1(1) and 2 thereof.
B. Observations of the representatives
14. In its observations on the agreement, submitted on April 15, 2021, the representatives
of the alleged victims reiterated the arguments set forth in their brief of March 24, 2021, to
which they attached a copy of the friendly settlement agreement. They confirmed their signing
of the Agreement and requested that the Court, in application of Article 63 of its Rules of
Procedure, declare that the Agreement is admissible in all its aspects and has full legal effects.
Therefore, they requested that the Court, in its judgment in this case, analyze the facts
acknowledged by the State, as well as the violations committed against the victims and their
next of kin and “endorse the reparations agreed upon by the parties as set forth in the
Agreement.” They also asked to Court to “follow up on the implementation (of the reparations)
in the context of the process of monitoring compliance with the judgment.”
15. In particular, the representatives urged the Court to accede to the joint request of the
parties and to develop jurisprudence on the content and scope of the rights protected by the
Convention that were violated by virtue of the activities of the fishing industry in the Miskito
territory, and the lack of regulation, supervision and oversight of these by the State and, in
particular, of the rights derived from Article 26 of the Convention. They argued that the
development of such standards would provide Honduras and other States in the region with
information on their obligations to respect and guarantee human rights in cases involving
private companies and indigenous peoples. The aim is to ensure that events such as those
that occurred in the instant case are not repeated.
16. Finally, the representatives requested that the amount to be awarded as compensation
for costs and expenses, as well as the amount corresponding to the Miskito organizations for
costs and expenses, be kept confidential in the judgment on the endorsement of the
agreement.
C. Observations of the Commission
17. In its observations, the Inter-American Commission expressed satisfaction with the
friendly settlement agreement signed by the parties. Likewise, it welcomed the State’s
acknowledgment of responsibility based on the factual and legal determinations of the Merits
Report, and noted that the reparation measures agreed upon by the parties include the
different components of a comprehensive compensation, in the terms of the inter-American
human rights system. Finally, the Commission expressed satisfaction with the parties’ joint
petition for the Court to rule on the points of law specified, and reaffirmed that request. In
particular, it stressed the importance of developing the Court’s jurisprudence in relation to
Article 26 of the American Convention, as indicated in the agreement itself.
D. Considerations of the Court
18. On previous occasions, this Court has had the opportunity to examine and evaluate
friendly settlement agreements. 7 On this point, it is useful to recall that Article 63 of the
Court’s Rules of Procedure establishes that “[w]hen the Commission, the victims or alleged
victims or their representatives, the respondent State or, if applicable, the petitioning State,
7
Cf. Case of Benavides Cevallos v. Ecuador. Merits, reparations and costs. Judgment of June 19, 1998. Series
C No. 38, and Case of Escaleras Mejía et al. v. Honduras. Judgment of September 26, 2018. Series C No. 361, para.
15.
7
in a case before the Court, inform it of the existence of a friendly settlement, compromise, or
any other occurrence likely to lead of a settlement of the dispute, the Court shall rule upon
its admissibility and juridical effects at the appropriate procedural time.” Therefore, in
accordance with the aforementioned rule, this Court will determine the validity and legal
effects of the friendly settlement agreement reached by the parties. 8
19. The Court also recalls that, according to Article 63, it is possible that in proceedings
before this Court the parties may reach friendly settlements, the appropriateness of which
must be assessed by the Court. Reaching this type of settlement may lead to a more prompt
and effective reparation for the victims in the case. In addition, it may contribute to the
objectives of the inter-American system for the protection of human rights, and especially to
the purpose of finding just solutions to the specific and structural problems of a case. 9
20. Furthermore, the Court observes that, according to the abovementioned article as well
as Article 64 of the Rules of Procedure, 10 and in exercise of its powers of international judicial
protection of human rights, a matter of international public order that transcends the will of
the parties, it is incumbent upon this Court to ensure that friendly settlement agreements are
acceptable for the purposes sought by the inter-American system. In this task the Court does
not limit itself to merely confirming, recording or taking note of the acknowledgement made
by the State, or verifying the formal conditions of such actions, but must weigh them against
the nature and seriousness of the alleged violations, the requirements and interests of justice,
the particular circumstances of the specific case, and the attitude and position of the parties,
in order to determine, insofar as possible and in the exercise of its competence, the truth of
what occurred in the case. 11 In this sense, the agreement cannot have the consequence of
violating, directly or indirectly, the object and purpose of the American Convention.
21. To this end, the Court must analyze the situation presented in each specific case,
verifying that the agreement - which may be submitted to the Court at any stage of the
contentious proceeding - is signed by the parties. Having given notice to the parties and to
the Commission and, where appropriate, having sought their respective observations, the
Court will verify that the formal and material requirements are met to proceed to endorse the
agreement by means of a judgment.
22. The Court finds that the agreement submitted contemplates a settlement between the
parties to the dispute in relation to the facts and the determination of human rights violations,
along the lines of those established in the Merits Report, as well as the measures of reparation.
The Court understands that, given the manner in which the State formulated its
acknowledgment of responsibility, it also includes the legal considerations that led said body
to conclude that these violations were committed to the detriment of the victims in this case.
23. Furthermore, the Court highlights the willingness of the parties to reach a solution to
the dispute in the instant case, and particularly emphasizes the procedural moment in which
8
Cf. Case of García Cruz and Sánchez Silvestre v. Mexico. Merits, reparations and costs. Judgment of November
26, 2013, Series C No. 273, para. 17, and Case of Escaleras Mejía et al. v. Honduras, supra, para. 15.
9
Cf. Case of Pacheco Teruel et al. v. Honduras. Merits, reparations and costs. Judgment of April 27, 2012.
Series C No. 241, para. 19, and Case of Escaleras Mejía et al. v. Honduras, supra, para. 16.
10
Article 64 of the Court’s Rules of Procedure. “Continuation of a case. Bearing in mind its responsibility to
protect human rights, the Court may decide to continue the consideration of a case notwithstanding the existence of
the conditions indicated in the preceding articles.”
11
Cf. Case of Manuel Cepeda Vargas v. Colombia. Preliminary objections, merits, reparations and costs.
Judgment of May 26, 2010. Series C No. 213, para. 17, and Case of Escaleras Mejía et al. v. Honduras, supra, para.
17.
8
they did so. This allows the Court to arrive at a judgment more expeditiously than if the
international proceeding had been completed. Thus, the dispute in this proceeding concluded
without the need for a public hearing and without the final written procedure being carried
out. 12
24. In accordance with the terms in which the agreement was signed, the Court considers
that the factual dispute has ceased. Although this means it is unnecessary for the Court to
make its own determination of the facts and legal consequences, in order to ensure a better
understanding of the case and, in particular, in light of the agreement reached, the Court
deems it appropriate to summarize the relevant facts and background based on the contents
of the Merits Report which, as previously indicated, have been acknowledged by the State. In
this regard, the Court recalls that the parties agreed to the following:
Through this Friendly Settlement Agreement, the parties have agreed to the cessation
of the dispute and the corresponding reparations. The parties agree that there is still
a need for jurisprudence on the content and scope of the rights of the American
Convention that were affected in this case by virtue of the activities of the extractive
fishing industry in the Miskito territory and, in particular, those derived from Article 26
and its relationship with Articles 1(1) and 2 of the [American Convention]. The purpose
of the foregoing is for the Inter-American Court to provide elements to the States of
the region regarding their obligations to respect and guarantee human rights when
companies and indigenous peoples are involved, so that events such as those that
occurred in the instant case are not repeated.
25. At the same time, although the Court considers that the dispute has also ceased on
the arguments related to the violations of the rights to life, life with dignity, personal integrity,
the rights of the child, judicial guarantees, judicial protection, the rights to work, health and
social security, and the right to equality and non-discrimination, contained in Articles 4(1),
5(1), 8(1), 19, 24, 25(1) and 26 of the American Convention, in relation to the obligations
established in Articles 1(1) and 2 thereof, to the detriment of the persons indicated in Annex
1 of this judgment, and of the rights to personal integrity to the detriment of the victims’ next
of kin, the Court will, where relevant, refer to the violations of the rights indicated, as it deems
necessary (infra Chapter VI). Subsequently, the Court will analyze the agreement in order to
determine whether its endorsement is appropriate (infra Chapter VII).
26. Finally, the Court appreciates the willingness of Honduras to make full reparation for
the harm caused to the victims by the violations that occurred in the instant case and to
prevent the recurrence of such violations. With respect to the reparation measures described
in the agreement reached by the State, the victims and their representatives, the Court will
analyze them in order to determine whether they should be endorsed and, if so, their scope
and means of implementation (infra Chapter VIII).
V.
FACTS
27. According to the friendly settlement agreement, “the State accepts that the facts that
form the factual basis of this Friendly Settlement Agreement and, therefore, of the
acknowledgment of its international responsibility, are those facts considered proven by the
[Commission] in its Merits Report Nº 64/18, adopted on May 8, 2018, which forms an integral
part of the agreement, and which the State agrees to abide by within the framework of its
12
Mutatis mutandis, Case of García Cruz and Sánchez Silvestre v. Mexico, para. 19, and Case of Escaleras Mejía
et al. v. Honduras, supra, para. 20.
9
compliance with this agreement based on its international obligations.” 13 Therefore, taking
into account the foregoing, the Court will refer briefly to the context and facts that resulted
in the violations in this case, which that were analyzed in Chapter IV “Factual Determinations”
of the Merits Report, and in Chapter V “Legal Analysis, as well as to the different facts related
to each of the victims in this case. 14
A. The Miskito indigenous people in the department of Gracias a Dios
28. The Miskitos are a binational indigenous people who share the border territories of
Honduras and Nicaragua. In 2003, the Miskito population numbered approximately 40,000,
and was mostly concentrated in rural areas of the department of Gracias a Dios (hereinafter
“the department” or “Gracias a Dios”), in Honduras.
29. According to reports of the World Bank and the United Nations Development Program
(hereinafter “UNDP”), in 2003, the department of Gracias a Dios had high rates of poverty,
illiteracy, unemployment, chronic malnutrition, lack of sanitation and electricity services, and
a lack of water sources, among other problems. In terms of health services, although the
department of Gracias a Dios has health centers, these are difficult to access for the region’s
population, due to the distances involved and the poor condition of the roads. 15
30. For its part, the Pan American Health Organization (hereinafter “PAHO”) has pointed
out that people living in the department have few formal employment opportunities, and that
there is a limited government presence in the area due to its remote geographical location
and the high costs of access. 16 In this regard, the Inter-American Commission has noted that,
in 2014, this region continued to be one of the poorest and most isolated areas of Honduras,
with no road connecting it to the rest of the country and only accessible by air or sea. 17
B. Underwater fishing by Miskito divers: working conditions, their effects and

domestic proceedings
31. According to PAHO, the subsistence activities of the Miskito people mainly involve
agricultural work, artisanal fishing and paid work for young men as divers for lobster and
shrimp fishing. Traditionally, the Miskito men practiced “free diving” (without equipment) to
catch lobster for family consumption, not going deeper than 40 to 60 feet in their dives.
However, due to the increased commercialization of this activity, which represents an
important source of income for the Honduran economy, 18 lobster fishing on the Atlantic Coast
13
Friendly Settlement Agreement Case CDH-10-2019, Lemoth Morris et al. (Miskito Divers) v. Honduras (merits
file, folio 710).
14
Unless stated to the contrary, the description of the facts contained in this chapter appears in paragraphs 31
to 307 of the Merits Report, in the terms acknowledged by the State.
15
Cf. World Bank. Honduras. Conceptual Framework for Interventions with Indigenous and Afro Communities in
the project “Trade Facilitation and Enhancing Competitiveness” (evidence file, folio 6301), and United Nations
Development Program. Human Development Report Honduras, 2003, page 104.
16
Cf. Pan American Health Organization, Human Rights and Disability among Indigenous Peoples, 2004
(evidence file, folios 6356-6357).
17
Cf. Inter-American Commission on Human Rights. 2015 Report on the Human Rights Situation in Honduras,
para. 427.
18
According to a report, in 2011, Honduras produced 10,000 metric tons of lobster, earning revenues of US$ 70
million and generating 30,000 direct temporary jobs. Cf. United Nations Development Program (UNDP), Honduran
Private Enterprise Council (COHEP), Netherlands Development Cooperation Service (SNV) and Secretariat of Planning
and External Cooperation (SEPLAN), Report on productive sectors, strategic chains and enterprises for a supplier
development program, Tegucigalpa, 2012, pp. 46 to 47.
10
of Honduras and Nicaragua is carried out by diving, and not by artisanal fishing. PAHO has
noted that Miskito boys begin this work when they are 14 years old, that it takes place outside
of current labor legislation and that it causes occupational accidents, intoxications and
disabilities in people of working age. Of the 9,000 divers involved in lobster fishing – 98 per
cent of whom are Miskitos – 97 per cent have suffered some type of decompression-related
syndrome and 4,200 are totally or partially disabled. 19
32. Deep-sea dive fishing can produce, inter alia, the following consequences: i) drowning;
ii) air embolism; iii) excessive lung inflammation; iv) decompression sickness; v)
hypothermia; vi) barotrauma; and vii) carbon monoxide poisoning. 20 Decompression
sickness, in particular, is caused by a rapid reduction in pressure (e.g., during ascent from a
dive), and the appropriate treatment is to place the diver in a hyperbaric chamber. However,
according to PAHO, most diving accidents are preventable when the diver is in good physical
condition, has adequate training, abstains from drinking, smoking or consuming illegal drugs,
dives in the company of others, does not ascend above sea level until 12 hours after a dive,
does not dive more than three times on the same day, uses insulating suits in cold water,
regularly checks the equipment and has a previous medical examination. In addition, fishing
boats should maintain communication with the land and carry oxygen on board. 21
33. In relation to the above, the Inter-American Development Bank (hereinafter “IDB”)
has reported that one of the main problems faced by Miskito divers is the fact that fishing
companies do not meet the minimum standards required to work in dive fishing, since they
do not offer formal employment contracts or provide appropriate equipment to perform this
activity, and therefore divers lack adequate safety conditions. The IDB has also noted that
some divers have been offered drugs in order to help them remain fishing underwater for as
long as possible, and in some cases they receive part of their wages in cash and part in
drugs. 22
34. Similarly, the National Commissioner for Human Rights (hereinafter “CONADEH”) and
AMHBLI have reported that, since 2001, Miskitos who are recruited to be divers do not receive
training on diving techniques or on safety measures. They have also reported that those
affected by accidents have not received compensation for the harm caused or for the illnesses
or disabilities resulting from such accidents. Consequently, due to their injuries and lack of
treatment and compensation, most Miskito divers with disabilities turn to begging. 23
35. With regard to working conditions, according to the Special Prosecutor's Office for
Ethnic Affairs and Cultural Heritage, Miskito divers receive 45 lempiras per pound of lobster
(approximately one United States dollar and eight-seven cents). With that money, the divers
19
Cf. Pan American Health Organization, Human Rights and Disabilities among Indigenous Peoples, 2004
(evidence file, folios 6357 to 6361).
20
(evidence file, folio 6363).
21
(evidence file, folio 6382).
22
Cf. Inter-American Development Bank. Human Development Report. Honduras 2003 (evidence file, folio
6641).
23
Cf. National Human Rights Commission of Honduras (CONADEH). Final Report. Organizational
Strengthening of Ethnic Groups and Divers in the department of Gracias a Dios. Honduras, 2001 (merits file, folio
29), and AMHBLI Project to Clarify the Legal Situation of Multiple Labor Complaint Cases Filed by Divers with the
Ministry of Labor, September 24, 2003. (merits file, folio 29).
11
must also pay the cayuquero. 24 Moreover, divers may work for 12 or even 17 consecutive
days without rest, and their work is dictated by the captain of the fishing boat. According to
the Special Prosecutor's Office, divers receive their payment when the product of the catch is
paid for by the packing plant and, while this happens, the boat owners give “credit” to the
divers in the form of food, alcoholic beverages and clothing, after which those amounts are
deducted from their wages. It also pointed out that the number of divers aboard the fishing
vessels normally exceeds the capacity for which they were designed, and that there is no
proper or thorough inspection of the quantity, quality and maintenance of the diving
equipment, which leads to accidents involving the explosion of cylinders. Even in these
conditions, the “captains” of the boats have forced divers to dive to depths of up to 140 feet
(more than 40 meters deep). 25
36. In 2007, the International Labor Organization (hereinafter “ILO”) reported that diving
for lobster fishing is a very important activity for the region of La Mosquitia and is “very
dangerous.” It emphasized that this activity is carried out by young men aged between 14
and 25 years, for 10 or 12 days during fishing trips, and that many of these divers die or
become disabled for life. It also noted that the trade and agricultural or fishery production
sector hires cheap temporary labor and that in coastal Miskito communities, 75% of children
and adolescents over the age of 13 work in the fishing sector as cayuqueros (canoe oarsmen)
or divers. The ILO pointed out that some children who work in traditional fishing and diving
activities suffer from health problems such as sunstroke, back pain, vomiting, dizziness,
burns, respiratory diseases, harpoon accidents, and physical or mental disabilities. 26
37. On May 30, 2001, the Secretary of State in the Department of Labor and Social
Security of Honduras issued Executive Decree No. STSS 116-01, which approved the
Occupational Safety and Health Regulations for Underwater Fishing (hereinafter “the Fishing
Regulations”). These regulations establish the minimum safety and health requirements for
work on fishing vessels. The Fishing Regulations state that employers who fail to comply with
their obligations will be sanctioned by the Ministry of Labor and Social Security, which will
evaluate and classify the violations and impose sanctions by applying the provisions of the
Labor Code. One of the considering paragraphs states the following:
That given the high rate and seriousness of the occupational risks recorded in
underwater fishing activities, there is an urgent need to establish regulatory standards
to facilitate the application of Title V and other provisions contained in the Labor Code,
concerning the protection of the health of workers against the risks arising from the
working conditions of underwater fishing.
38. The Inter-American Commission noted in its Merits Report that, as of 2015, the only
source of employment for Miskito men was dive fishing, which continues to be carried out in
the absence of basic safety conditions. From the testimonies gathered during an on-site visit,
the following points stood out:
[...] the work of the divers takes place informally without any contract or safety, and
involves the use of defective equipment and exploitation [...]the equipment used for
24
A cayuquero is the oarsman of a cayuco, defined as a “one-piece Indian boat, smaller than a canoe, with a
flat bottom and no keel, which is steered and moved with the paddle.” Cf. Diccionario de la Lengua Española de la
Real Academia Española.
25
Cf. Special Prosecutor's Office for Ethnic Affairs and Cultural Heritage. Study on the Problems of the Divers of
the Honduran Mosquitia. Honduras, 2001 (evidence file, folios 6966 to 6968).
26
Cf. International Labour Organization. Child Labour and Indigenous Peoples. International Program for the
Eradication of Child Labour, September 2007, (evidence file, folios 6846 and 6894).
12
diving is old and does not benefit from any maintenance, nor is there adequate training,
which is provided by co-workers who have not had any training either. The divers spend
long periods of time diving, extending from 12 to 17 days, and in order to fish larger
quantities of seafood, they are forced to stay in the sea at great depths for prolonged
periods and return to the surface very quickly, in contravention of diving safety
standards. All of this takes place without proper supervision by the State. Therefore,
divers run the risk of suffering from preventable accidents such as drowning or
decompression sickness.
[...] as a result of these conditions, various Miskito divers have died or sustained
permanent physical and mental injuries [...] the absence of rehabilitation measures and
a hyperbaric chamber that would be able to immediately help divers suffering from
decompression sickness in La Mosquitia has led to permanent disabilities for hundreds
of them over the years. Nevertheless, neither the company selling the lobsters that
employs them, nor the State, has adopted measures to prevent this situation from
continuing or to take care of those suffering from some type of disability. The
Commission was informed that, in 2013, 20 persons were reported dead as a result of
underwater fishing accidents and about 400 persons were reported injured. Honduras is
the country with the world’s highest number of persons suffering from decompression
sickness. Furthermore, the State does not keep a record with information about the
accidents sustained or the number of divers injured or killed.
The IACHR also learned that, once the Miskito divers are physically disabled for life, they
find no empowerment, rehabilitation, medical care, or any other employment [...].Even
when living as injured persons, because of the absence of other job alternatives, on
many occasions Miskito divers continue to carry out their respective activities. According
to information received by the Commission, this leads to the worsening of the disability
and even more severe impacts on the family, such as difficulties in ensuring access to
education for those who depend on them financially and breakup of the nuclear family.
According to the information received, there are no mechanisms to supervise the

working conditions of the Miskito divers. Also, there is little presence of the State in the
area to offer protection and judicial guarantees for the divers. The State indicated that
it would examine the subject in depth to find a solution. 27
39. Regarding the remedies available to Miskito divers, the procedure for requesting
compensation for work-related accidents is as follows: i) presentation of the labor claim at
the office of the Ministry of Labor in La Ceiba or Tegucigalpa; ii) summons to the employer to
accept or not the facts; iii) medical report of temporary disability to claim compensation; iv)
calculation of labor rights by the Ministry of Labor based on data presented by the worker; v)
notification to the employer; and vi) filing of the labor lawsuit. Most of the indemnities paid
to Miskito divers have been agreed without the corresponding calculation for each case, since
the claimants must be evaluated by specialized doctors from the Ministry of Labor. 28
C. The situation of the victims
40. The Court recalls that the instant case concerns 42 victims of the Miskito indigenous
community living in the department of Gracias a Dios and their next of kin, who are divided
into four groups: 29 a) 34 divers who suffered accidents due to deep dives which caused them
27
Inter-American Commission on Human Rights. Report on the Situation of Human Rights in Honduras,
December 31, 2015, paras. 427 to 435.
28
Cf. Report of AMHBLI. Analysis of the Situation of Injured Divers of the Miskito Zone (merits file, folio 31).
29
For a description of the facts related to each of the victims, see Annex 2 of this Judgment.
13
decompression sickness or other diving–related ailments, 30 12 of whom died as a result of
such accidents; 31 b) seven Miskito divers who died as a result of the fire aboard the
“Lancaster” boat in which they were traveling, due to the explosion of a butane tank; 32 c) the
child Licar Méndez Gutiérrez, who was abandoned in a cayuco by the boat owner and whose
whereabouts are unknown, and d) their next of kin. In relation to the administrative or judicial
claims filed by the alleged victims, the Court notes the following: a) 11 divers obtained an
administrative response from the Ministry of Labor and Social Security, the General
Directorate of Social Security or the Office of Occupational Health and Safety 33 and, b) three
divers obtained a judicial response from the Labor Court. 34 The Court also notes that as a
result of those administrative proceedings 18 divers, or their families, received monetary
compensation. 35
VI.
CONSIDERATIONS OF THE COURT REGARDING THE HUMAN RIGHTS VIOLATIONS
COMMITTED AGAINST THE VICTIMS
41. Without prejudice to the State’s acknowledgment of responsibility for the violations
described in the Merits Report and the cessation of the dispute in these proceedings, the
Court, within the framework of its jurisdiction, and in consideration of the relevance and
magnitude of the facts, and the joint petition submitted by the State and the representatives
(supra para. 13), considers it necessary to refer to the rights violated in the instant case.
Thus, the Court deems it appropriate to analyze the content of the rights that were impaired
by virtue of the fishing activities in the Miskito territory - with special emphasis on the rights
to life, personal integrity, health and social security, work and fair and satisfactory conditions
that ensure the health and safety of the worker, given the close relationship existing between
these rights and the violations that occurred in this case - in order to establish the scope of
30
Opario Lemoth Morris, Saipón Richard Toledo, Eran Herrera Palisto, Bernardo Blackaus Emos, Alí Herrera
Ayanco, Mármol Williams García, José Martínez López, Ramón Allen Felman, Alfredo Francisco Brown, Próspero
Bendles Marcelino, Roger Gómez Alfred, Timoteo Salazar Zelaya, Timoteo Lemus Pisatty, Onasis Cooper, Flaviano
Martínez López, Carcoth Padmoe Miller, Amistero Bans Valeriano, Rolando Mónico Thomas, Ralph Valderramos
Álvarez, Ex Dereck Claro, Leonel Saty Méndez, David Esteban Bradley, Evecleto Londres Yumida, Arpin Robles
Tayaton, Daniel Flores Reyes, Freddy Federico Salazar, Cooper Cresencio Jems, Félix Osario Presby, Efraín Rosales
Kirington, Melesio Pamistan Maick, Willy Gómez Pastor, Roberto Flores Esteban, Daniel Dereck Thomas and Carlos
Castellón Cárdenas.
31
Opario Lemoth Morris, Saipon Richard Toledo, Eran Herrera Paulisto, Bernardo Blackaus Emos, Alí Herrera
Bendles Marcelino, Roger Gómez Alfred and Timoteo Salazar Zelaya.
32
Hildo Ambrosio Trino, Andrés Miranda Clemente, Lorenzo Leman Bonaparte, Bernardo Julián Trino, José Trino
Pérez Nacril, Rómulo Flores Henriquez and Amilton Bonaparte Clemente.
33
Flaviano Martínez López, Carcoth Padmoe Miller, Amistero Bans Valeriano, Rolando Mónico Thomas, Ex Dereck
Claro, Onasis Cooper Brown, Saipón Richard Toledo, Melesio Pamistan Maick, Willy Gómez Pastor, Próspero Bendles
Marcelino and Carlos Castellón Cárdenas.
34
Flaviano Martínez López, Timoteo Lemus Pisatty and Carlos Castellón Cárdenas.
35
In this regard, it is important to note that: a) two divers or their families received full compensation (Mármol
Williams García and José Martínez López); b) 16 divers or their families received partial compensation (Opario Lemoth
Morris, Cacorth Padmoe Miller, Rolando Mónico Thomas, Timoteo Lemus Pisatty, Daniel Flores Reyes, Onasis Cooper
Brown, Anastacio Saipón Richard Toledo, Melesio Pamistan Mack, Daniel Dereck, Bernardo Blackaus, Alí Herrera,
Alfredo Francisco Brown, Próspero Bendles Marcelino, Ramón Allen Ferman, Roger Gómez Alfred and Carlos Castellón
Cárdenas); c) 15 divers or their families received no compensation (Flaviano Martínez López, Amistero Bans
Valeriano, Ralph Valderramos Álvarez, Ex Dereck Claro, Leonel Saty Méndez, Evecleto Londres Yumidal, Arpin Robles
Tayaton, Freddy Federico Salazar, Cooper Cresencio, Efraín Rosales Kirington, Willy Gómez Pastor, Licar Méndez,
Roberto Flores Esteban, Eran Herrera Palisto and Timoteo Salazar Zelaya); and, regarding nine of the divers or their
families there is no certainty as to whether or not they received compensation (Hildo Ambrosio Trino, Andrés Miranda
Clemente, Lorenzo Leman Bonaparte, Bernardo Julián Trino, José Trino Pérez Nacril, Rómulo Flores Henríquez and
Amilton Bonaparte Clemente (burned persons), David Esteban Bradley and Félix Osorio Presby.
14
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
42. Prior to the analysis of the merits, and as a preliminary consideration, this Court
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
36
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.
37
Cf. Case of Velásquez Rodríguez v. Honduras, supra, para. 166 and 167, and Advisory Opinion OC-27/21,
supra, para. 108.
38
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.
15
particular circumstances of the case must be examined and whether the obligation to
guarantee rights has been met. 39
45. At the same time, the Court has pointed out that Article 2 of the Convention establishes
the general duty of the States Parties to adapt their domestic laws to the provisions of the
Convention in order to guarantee the rights enshrined therein. This duty implies the adoption
of two kinds of measures: on the one hand, the elimination of rules and practices that in any
way violate the guarantees provided for under the Convention; on the other hand, the
promulgation of norms and the development of practices conducive to the effective
observance of those guarantees. 40 Indeed, with regard to the adoption of such measures, this
Court has recognized that all the authorities of States Parties to the Convention have an
obligation to exercise a control of conventionality, so that the interpretation and application
of national law is consistent with their international human rights obligations. 41
46. The Court recalls that, within the framework of its competencies, it is not for the Court
to determine the specific responsibility of individuals, but rather to establish whether States
are responsible for the violation of the human rights recognized in the Convention. 42 In this
regard, the Court has ruled on the State’s duty to regulate, supervise and oversee the practice
of dangerous activities by private companies that involve significant risks to the life and
integrity of persons under their jurisdiction. 43 Similarly, the Committee on Economic, Social
and Cultural Rights has indicated that States Parties must effectively prevent any impairment
of the economic, social and cultural rights in the context of business activities, and must
therefore adopt legislative, administrative and educational measures to ensure their effective
protection. 44
47. Regarding the obligations of States with respect to business activities, the Court
considers it pertinent to emphasize that the Human Rights Council has adopted the “Guiding
Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect
and Remedy’ Framework” (hereinafter “Guiding Principles”). 45 In particular, the Court
highlights the three pillars of the Guiding Principles, together with the foundational principles
derived from these pillars, which are fundamental in determining the scope of the human
rights obligations of States and business enterprises: 46
39
Cf. Case of the Pueblo Bello Massacre v. Colombia. Judgment of January 31, 2006. Series C No. 140, para.
123, and Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus v. Brazil, supra, para. 117.
40
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs. Judgment of May 30, 1999. Series C
No. 52, para. 207, and Advisory Opinion OC-27/21, supra, para. 109.
41
Cf. Case of Radilla Pacheco v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of
November 23, 2009. Series C No. 209, para. 340, and Advisory Opinion OC-27/21, supra, para. 109.
42
Mutatis mutandis, Case of Suárez Rosero v. Ecuador. Merits. Judgment of November 12, 1997. Series C No.
35, para. 37, and Case of Mota Abarullo et al. v. Venezuela. Merits, reparations and costs. Judgment of November
18, 2020. Series C No. 417, para. 111.
43
Cf. Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus v. Brazil, supra, para. 118.
44
Cf. Committee on Economic, Social and Cultural Rights. General Comment No. 24 on State obligations under
the International Covenant on Economic, Social and Cultural Rights, in the context of business activities,
E/C.12/GC/24, August 10, 2017, para. 14.
45
Cf. Human Rights Council. Human Rights and Transnational Corporations and Other Business Enterprises.
A/HRC/17/31, July 6, 2011, Resolution 1.
46
Cf. Office of the United Nations High Commissioner for Human Rights (OHCHR). Guiding Principles on Business
and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, HR/PUB/11/04,
2011.
16
I. The State’s duty to protect human rights
 States must protect against human rights abuse within their territory and/or
jurisdiction by third parties, including business enterprises. This requires taking
appropriate steps to prevent, investigate, punish and redress such abuse
through effective policies, legislation, regulations and adjudication.
 States should set out clearly the expectation that all business enterprises
domiciled in their territory and/or jurisdiction respect human rights throughout
their operations.
II. The corporate responsibility to respect human rights
 Business enterprises should respect human rights. This means that they should
avoid infringing on the human rights of others and should address adverse
human rights impacts with which they are involved.
 The responsibility of business enterprises to respect human rights refers to

internationally recognized human rights – understood, at a minimum, as those
expressed in the International Bill of Human Rights and the principles
concerning fundamental rights set out in the International Labor Organization’s
Declaration on Fundamental Principles and Rights at Work.
 The responsibility to respect human rights requires that business enterprises:

a) Avoid causing or contributing to adverse human rights impacts
through their own activities, and address such impacts when they
occur;
b) Seek to prevent or mitigate adverse human rights impacts that are

directly linked to their operations, products or services by their
business relationships, even if they have not contributed to those
impacts.
 The responsibility of business enterprises to respect human rights applies to

all enterprises regardless of their size, sector, operational context, ownership
and structure. Nevertheless, the scale and complexity of the means through
which enterprises meet that responsibility may vary according to these factors
and the severity of the enterprise’s adverse human rights impacts.
 In order to meet their responsibility to respect human rights, business

enterprises should have in place policies and processes appropriate to their
size and circumstances, including:
a) A policy commitment to meet their responsibility to respect human

rights;
b) A human rights due diligence process to identify, prevent, mitigate

and account for how they address their impacts on human rights;
c) Processes to enable the remediation of any adverse human rights

impacts they cause or to which they contribute.
III. Access to remedy
 As part of their duty to protect against business-related human rights abuse,

States must take appropriate steps to ensure, through judicial, administrative,
legislative or other appropriate means, that when such abuses occur within
their territory and/or jurisdiction those affected have access to effective
remedy.
17
48. Accordingly, and in the context of the obligation to guarantee rights and the duty to
adopt provisions of domestic law derived from Articles 1(1) and 2 of the American Convention,
the Court emphasizes that States have a duty to prevent human rights violations by private
companies, and therefore must adopt legislative and other measures to prevent such
violations, and to investigate, punish and provide reparation when they occur. Thus, States
must establish regulations requiring companies to implement actions aimed at ensuring
respect for the human rights recognized in the various instruments of the Inter-American
System for the Protection of Human Rights –including the American Convention and the
Protocol of San Salvador- especially in relation to hazardous activities. Under these
regulations, businesses must ensure that their activities do not cause or contribute to human
rights violations, and must adopt measures to redress such violations. The Court considers
that corporate responsibility is applicable regardless of the size or sector of the company;
however, their responsibilities may vary in the legislation based on the activity and the risk
they pose to human rights. 47
49. In addition, this Court considers that, in pursuit of the aforementioned purposes,
States should adopt measures to ensure that business enterprises have: a) appropriate
policies for the protection of human rights; b) due diligence processes for the identification,
prevention and correction of human rights violations, as well as to ensure decent and dignified
work; and c) processes that allow businesses to remedy human rights violations that result
from their activities, especially when these affect people living in poverty or belonging to
vulnerable groups. 48 The Court considers that, in this context, States should actively
encourage businesses to adopt good corporate governance practices that focus on
stakeholders and actions aimed at orienting business activity towards compliance with human
rights and standards, including and promoting the participation and commitment of all the
stakeholders involved, and the redress of affected persons.
50. The Court also recalls that Article 25 (1) of the American Convention establishes that
“[e]veryone has the right to simple and prompt recourse, or any other effective recourse, to
a competent court or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention […].” 49
Thus, States must ensure the existence of judicial or extrajudicial mechanisms that provide
an effective remedy for human rights violations. In this sense, States have the obligation to
eliminate existing legal and administrative barriers that limit access to justice, and adopt
those aimed at achieving its effectiveness. The Court emphasizes the need for States to
address cultural, social, physical or financial barriers that prevent access to judicial or
extrajudicial mechanisms for persons belonging to groups in situations of vulnerability. 50
47
Cf. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect,
Remedy” Framework, supra, principles 1-14; Inter-American Commission on Human Rights. Report on Business and
Human Rights: Inter-American Standards, REDESCA, November 1, 2019, paras. 89 and 121, and Inter-American
Juridical Committee. Resolution “Corporate social responsibility in the area of human rights and the environment in
the Americas” CJI/RES. 205 (LXXXIV-O/14); and Inter-American Juridical Committee. Guidelines concerning
Corporate Social Responsibility in the Area of Human Rights and the Environment in the Americas, February 24,
2014, CJI/doc.449/14 rev.1., corr. 1, points a and b.
48
Remedy” Framework, supra, principles 15-24.
49
Cf. Case of Velásquez Rodríguez v. Honduras, supra, para. 91, and Advisory Opinion OC-27/21, supra, para.
115.
50
Remedy” Framework, supra, principles 25-31.
18
51. In addition, this Court considers it pertinent to point out that it is the companies that
are primarily responsible for behaving responsibly in the activities they carry out, since their
active participation is fundamental for the respect and enforcement of human rights.
Businesses should adopt, at their own expense, preventive measures to protect the human
rights of their workers, as well as measures aimed at preventing their activities from having
a negative impact on the communities in which they operate or on the environment..51 In this
sense, the Court considers that the regulation of business activities does not require
companies to guarantee results, but rather should aim to ensure that they carry out
continuous assessments of the risks to human rights, and respond through effective and
proportional measures to mitigate the risks caused by their activities, in consideration of their
resources and possibilities, and with accountability mechanisms to remedy any damage
caused. This obligation must be assumed by companies and regulated by the State.
52. Finally, with regard to these preliminary considerations, the Court emphasizes, as the
Inter-American Commission has done through its Office of the Special Rapporteur on
Economic, Social, Cultural and Environmental Rights (ESCER), that “States must ensure that
business activities are not carried out at the expense of the fundamental rights and freedoms
of individuals or groups of individuals, including indigenous and tribal peoples, peasant
communities or Afro-descendant populations as cohesive collectives […].” 52 The latter is
essential in relation to all companies whose activities may affect persons or groups of persons
in vulnerable situations and, in particular, in relation to the acts of transnational corporations.
With regard to the latter, the Court considers that States must adopt measures aimed at
ensuring that transnational companies are held accountable for human rights violations
committed in their territory, or when they benefit from the activity of national companies that
participate in their production chains.
53. Taking into account the foregoing, the Court will analyze the substantive issues in this
case in the following order: a) rights to life, personal integrity and the rights of the child; b)
right to work and to just, equitable and satisfactory conditions that ensure the safety, health
and hygiene of the worker; c) rights to health and social security; and d) right to equality and
non-discrimination.
B. Rights to life, to personal integrity and rights of the child in relation to the
obligation of guarantee and the duty to adopt provisions of domestic law (Articles
4(1), 5(1) and 19 of the American Convention in relation to Articles 1(1) and 2 of
the same instrument)
54. This Court has established that the right to life plays a fundamental role in the
American Convention, since it is the essential prerequisite for the exercise of all other rights. 53
The observance of Article 4, in relation to Article 1(1) of the Convention, not only presupposes
that no one may be deprived of his life arbitrarily (negative obligation), but also requires the
States to adopt all appropriate measures to protect and preserve this right (positive
obligation), in accordance with the duty to ensure the free and full exercise of the rights of all
51
Cf. Inter-American Juridical Committee. Guidelines concerning Corporate Social Responsibility in the Area of
Human Rights and the Environment in the Americas, supra, point a.
52
Inter-American Commission on Human Rights. Report on Business and Human Rights: Inter-American
Standards, supra, para. 3.
53
Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19,
1999. Series C No. 63, para. 144, and Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus v.
Brazil, supra, para. 116.
19
persons under its jurisdiction. 54 The Court has also recognized that the violation of this right
has different connotations of degree, and that the physical and mental effects of its presumed
violation vary in intensity based on endogenous and exogenous factors that must be proved
in each specific case. 55
55. In fulfilment of its obligation to ensure the rights to life and personal integrity, this
Court has considered that States have a duty to regulate, supervise and monitor the
implementation of dangerous activities that entail significant risks for the life and integrity of
persons under their jurisdiction 56 (supra paras. 43 to 46).
56. In the instant case, the Court first notes that, since 2001, Honduras has had specific
health and safety regulations for divers. These “establish the rules governing the application
of Title V and other provisions contained in the Labor Code on the protection of workers’
health from the risks arising from the working conditions of underwater fishing.” 57 The
Occupational Safety and Health Regulations for Underwater Fishing recognize “the seriousness
of the occupational risks encountered in underwater fishing activities.” 58 These regulations
aim to “protect the health of workers from the risks arising from the working conditions of
underwater fishing,” and establish that the Ministry of Labor and Social Security is responsible
for inspecting the occupational safety of fishing vessels and evaluating occupational risks in
this industry. 59 They also establish a series of obligations for employers with regard to
ensuring the health and safety of workers. 60
57. In this sense, the Court considers that the Fishing Regulations provide an adequate
regulatory framework that establishes basic requirements for employers to ensure that this
activity complies with minimum safety standards for divers, and that the vessels used have
proper safety and hygiene conditions. The Court also notes that several of the diving accidents
that affected the victims in the case occurred during the period when there were no such
regulations, and therefore workers were covered by the provisions of Title V of the Honduran
Labor Code regarding the protection of workers during the performance of their work. 61
Therefore, the Court considers that there was no regulatory problem in the present case.
Nevertheless, as acknowledged by the State, there is no information to demonstrate that such
regulations have been effectively implemented by the competent authorities to ensure the
safety of dive fishing in La Mosquitia. 62
58. Second, and in relation to the foregoing, the Court notes that the State failed to
implement inspection or oversight measures to ensure that the boats carrying the divers who
suffered diving accidents, as well as the “Lancaster” boat which transported the divers who
54
Cf. Case of Juan Humberto Sánchez v. Honduras. Preliminary objection, merits, reparations and costs.
Judgment of June 7, 2003. Series C No. 99, para. 110, and Case of the Workers of the Fireworks Factory in Santo
Antônio de Jesus v. Brazil, supra, para. 116.
55
Cf. Case of Loayza Tamayo v. Peru. Merits. Judgment of September 17, 1997. Series C No. 33, para. 57, and
Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus v. Brazil, supra, para. 116.
56
Cf. Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus v. Brazil, supra, para. 118.
57
Secretariat of Labor and Social Security. Occupational Health and Safety Regulations for Underwater Fishing,
May 30, 2001, Article 1.
58
Occupational Health and Safety Regulations for Underwater Fishing, supra, considering paragraphs.
59
Cf. Occupational Health and Safety Regulations for Underwater Fishing, supra, Article 2.
60
Cf. Occupational Health and Safety Regulations for Underwater Fishing, supra, Articles 5 and 6.
61
Cf. Labor Code and Reforms, 1959, Title V.
62
Cf. Merits Report (evidence file, folio 61).
20
died as a result of the explosion (infra Annex 2, paragraph 12), complied with the safety
measures required to prevent underwater fishing from endangering the personal integrity or
lives of those involved. The State’s negligent conduct, in terms of verifying compliance with
the provisions of the Labor Code and the Fishing Regulations that protected workers, allowed
fishing activities to be carried out outside of domestic legislation. This resulted in the State’s
international responsibility for the serious physical and psychological consequences suffered
by the victims in this case in the various accidents that occurred, as well as for the deaths of
those who died as a result of those accidents, as evidenced by the State’s acknowledgment
(supra para. 13).
59. Third, the Court emphasizes that Licar Méndez was 16 years old when was abandoned
by the captain of the boat on which he was working, which led to his disappearance. In this
regard, the Court considers that the State’s aforementioned omissions constituted, in addition
to a violation of his right to life, a violation of its duty to guarantee the rights of a child. This
Court emphasizes that the ILO considers underwater lobster fishing in the Honduran Mosquitia
region to be an extremely dangerous activity for children, noting that it results in physical
harm due to prolonged exposure to the sun, humidity, the discomfort of sleeping on boats,
and the possibility of suffering injuries derived from diving without protection. In addition,
children who carry out this work often use drugs and alcohol to alleviate the effects of their
workloads. 63 On this point, the Court notes that the Committee on the Rights of the Child has
established that States have a duty to protect minors against violations of children’s human
rights, which is of fundamental importance when considering the States’ obligations with
respect to the business sector. 64
60. In view of the foregoing, and as the State has acknowledged, Honduras is responsible
for the following: a) the violation of the right to personal integrity to the detriment of the 34
divers who suffered accidents due to the deep dives they performed which caused them
decompression sickness and/or other diving-related illnesses; 65 b) the violation of the right
to life to the detriment of the 12 divers who died as a consequence of said accidents; 66 c) the
violation of the right to life to the detriment of the seven Miskito divers who died as a result
of the fire aboard the “Lancaster” boat in which they were traveling, caused by the explosion
of a butane tank; 67 and d) the violation of the right to life and the rights of the child, to the
detriment of the minor Licar Méndez Gutiérrez, who was 16 years old at the time of the
events, and who was abandoned on a cayuco on December 12, 2003 as a punishment by the
owner of the boat. Therefore, the State violated Articles 4(1), 5(1) and 19 of the American
Convention, in relation to Articles 1(1) and 2 of the same instrument.
63
International Labour Organization. Child Labour and Indigenous Peoples. The case of Honduras. Tegucigalpa,
September 2007. Page 48.
64
Cf. Committee on the Rights of the Child. General Comment No. 16 (2013). On State obligations regarding
the impact of the business sector on children’s rights, CRC/C/GC/16, April 17, 2013, para. 28.
65
Opario Lemoth Morris, Saipon Richard Toledo, Eran Herrera Paulisto, Bernardo Blackaus Emos, Alí Herrera
Bendles Marcelino, Roger Gómez Alfred, Timoteo Salazar Zelaya, Timoteo Lemus Pisatty, Onasis Cooper, Flaviano
Martínez López, Carcoth Padmoe Miller, Amistero Bans Valeriano, Rolando Mónico Thomas, Ralph Valderramos
Álvarez, Ex Dereck Claro, Leonel Saty Méndez, David Esteban Bradley, Evecleto Londres Yumida, Arpin Robles
Tayaton, Daniel Flores Reyes, Freddy Federico Salazar, Cooper Crescencio Jems, Félix Osario Presby, Efraín Rosales
Kirington, Melecio Pamistan Maick, Willy Gómez Pastor, Roberto Flores Esteban, Daniel Dereck Thomas and Carlos
Castellón Cárdenas.
66
Opario Lemoth Morris, Saipon Richard Toledo, Eran Herrera Paulisto, Bernardo Blackaus Emos, Ali Herrera
Bendles Marcelino, Roger Gómez Alfred and Timoteo Salazar Zelaya.
67
Hildo Ambrosio Trino, Andres Miranda Clemente, Lorenzo Leman Bonaparte, Bernardo Julián Trino, José Trino
Pérez Nacril, Rómulo Flores Henriquez and Amilton Bonaparte Clemente.
21
C. Right to work and to just, equitable and satisfactory conditions that ensure the
safety, health and hygiene of the worker, right to health and social security and to
equality and non-discrimination, in relation to the obligations of respect and
guarantee, and the duty to adopt provisions of domestic law (Article 26 of the
American Convention in relation to Articles 1(1) and 2 of the same instrument)
C.1. General considerations with respect to the content and scope of Article
26 of the American Convention
61. The Court recalls that in the friendly settlement agreement, the parties asked the Court
to rule on the content and scope of the rights that were affected in this case, especially those
derived from Article 26 of the American Convention. In this regard, the Court emphasizes that
the State acknowledged its international responsibility for the violation of the rights derived
from Article 26, in terms of their immediate enforceability. Consequently, the State accepted
this Court’s jurisdiction to examine direct violations of Article 26 of the Convention.
62. Regarding the scope of Article 26 of the American Convention in relation to Articles
1(1) and 2 of the same instrument, this Court has interpreted that the Convention
incorporated in its catalog of protected rights the so-called economic, social, cultural and
environmental rights (ESCER), through a derivation of the norms contained in the Charter of
the Organization of American States (OAS), as well as the rules of interpretation established
in Article 29 of the Convention itself, which states that “no provision [shall be interpreted as]
limiting or excluding” the enjoyment of the rights established in the American Declaration,
including those recognized in different domestic laws of the States. Furthermore, in
accordance with a systematic, teleological and evolutive interpretation, the Court has referred
to the international and national corpus iuris on this matter to give specific content to the
scope of the rights protected under the Convention, in order to determine the scope of the
specific obligations of each right. 68
63. Thus, the Court uses the sources, principles and criteria of the international corpus
iuris as special applicable norms to determine the content of the ESCER protected under
Article 26 of the Convention. This Court has indicated that the aforementioned norms are used
to determine the rights in question as a supplement to the provisions of the Convention. In
this regard, the Court reiterates that it is not assuming competence over treaties for which it
has none; nor is it granting conventional rank to norms contained in other national or
international instruments relating to the ESCER. 69 On the contrary, the Court will make an
interpretation in keeping with the provisions of Article 29 and its case law practice, allowing
it to update the meaning of the rights derived from the OAS Charter that are recognized by
Article 26 of the Convention.
64. Moreover, in determining the content and scope of the ESCER involved, the Court
places special emphasis on the American Declaration given that, as was established this
Court:
[…] [T]he member states of the Organization have signaled their agreement that the
Declaration contains and defines the fundamental human rights referred to in the
Charter. Thus the Charter of the Organization cannot be interpreted and applied as
68
Cf. Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of
August 31, 2017. Series C No. 340, paras. 141 to 149, and Advisory Opinion OC-27/21, supra, para. 46.
69
Cf. Case of the Pacheco Tineo Family v. Bolivia. Preliminary objections, merits, reparations and costs.
Judgment of November 25, 2013. Series C No. 272, para. 143, and Advisory Opinion OC-27/21, supra, para. 49.
22
far as human rights are concerned without relating its norms, consistent with the
practice of the organs of the OAS. 70
65. The Court also reiterates that human rights treaties are living instruments, the
interpretation of which must evolve with the passage of time and contemporary conditions.
This evolutive interpretation is consistent with the general rules of treaty interpretation
established in Article 29 of the American Convention, and in the Vienna Convention.
Furthermore, the third paragraph of Article 31 of the Vienna Convention authorizes the use
of interpretative means such as agreements or the relevant rules or practice of international
law that States have expressed on the subject matter of the treaty, which are some of the
methods that relate to an evolving view of the Treaty. Thus, in order to determine the scope
of the rights derived from the economic, social and educational, scientific and cultural norms
contained in the OAS Charter, the Court makes reference to the relevant instruments of the
international corpus iuris. 71
66. The Court also considers it pertinent to recall that there are two types of obligations
derived from the recognition of ESCER, which are protected by Article 26 of the Convention:
those that are immediately enforceable, and those of a progressive nature. Regarding the
former, (immediate obligations), the Court recalls that States must take effective measures
to ensure access, without discrimination, to the benefits recognized by ESCER and, in general,
move forward toward their full realization. With respect to the latter (progressive obligations),
this means that States Parties have the specific and continuous obligation to move as
expeditiously and effectively as possible towards the full realization of those rights, subject to
available resources, by legislation or other appropriate means. There is also an obligation of
non-retrogression regarding the realization of the rights attained. Accordingly, the
conventional obligations to respect and guarantee rights, as well as adoption of domestic legal
effects (Articles 1(1) and 2 of the American Convention), are essential to achieve their
effectiveness. 72
67. Taking into account the foregoing, the instant case does not require an analysis of the
State’s conduct in relation to the “progressive” advancement of ESCER. Rather, the Court
must consider whether the State ensured the protection of the rights of the 42 victims in the
case, that is to say, whether it fulfilled its immediately enforceable obligations with respect to
the right to work and to just, equitable and satisfactory conditions that ensure the safety,
health and hygiene of the worker, and the right to health and social security, enshrined in
international law and in the applicable national legislation, which does not prevent the Court
from developing standards on the matter, as requested by the State and the representatives.
Therefore, it is incumbent upon this Court to rule on the conduct of the State with respect to
compliance with its obligations to guarantee the following: a) the right to work and to just,
equitable and satisfactory conditions that ensure the safety, health and hygiene of the worker;
b) the rights to health and social security; and c) the right to equality and non-discrimination.
C.2. Right to work and to just, equitable and satisfactory conditions that
ensure the safety, health and hygiene of the worker
70
Interpretation of the American Declaration of the Rights and Duties of Man, in the context of Article 64 of the
American Convention on Human Rights. Advisory Opinion OC-10/89 of July 14, 1989. Series A No. 10, para. 43.
71
Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process
of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 114, and Advisory Opinion OC-27/21,
supra, para. 51.
72
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 190, and Advisory Opinion OC-27/21, supra, para. 147.
23
C.2.1. The content of the right to equitable and satisfactory conditions of work
that ensure the health of the worker
68. This Court has indicated that Articles 45(b) and (c), 73 46 74 and 34(g) 75 of the OAS
Charter establish a series of norms that recognize the right to work. In particular, the Court has
noted that Article 45(b) of the OAS Charter establishes that “b) [w]ork is a right and a social
duty, it gives dignity to the one who performs it, and it should be performed under conditions,
including a system of fair wages, that ensure life, health, and a decent standard of living for the
worker and his family, both during his working years and in his old age, or when any
circumstance deprives him of the possibility of working.” Thus, the Court has considered that
there is a reference with a sufficient degree of specificity to the right to just and favorable
conditions of work to infer its existence and implicit recognition in the OAS Charter.
Consequently, the Court considers that the right to just and favorable conditions that ensure
safety, health and hygiene of the worker is a right protected by Article 26 of the Convention. 76
69. With regard to the content and scope of this right, the Court recalls that the American
Declaration recognizes that everyone has the right “to work in decent conditions.” 77 Similarly,
Article 7 of the Protocol of San Salvador establishes that “[t]he States Parties to this Protocol
recognize that the right to work to which the foregoing article presupposes that everyone
shall enjoy that right under just, equitable and satisfactory conditions, which the States
Parties undertake to guarantee in their internal legislation, particularly with respect to: […]
safety and hygiene in the workplace.” In the universal sphere, the Universal Declaration on
Human Rights establishes that “[e]veryone has the right to […] equitable and satisfactory
conditions of work.” Meanwhile, the International Covenant on Economic, Social and Cultural
Rights provides that “[t]he States Parties to the present Covenant recognize the right of
everyone to the enjoyment of equitable and satisfactory conditions of work which ensure, in
particular: […] b) safe and healthy working conditions.” 78
70. In the context of the International Labor Organization, the Court notes that the Labour
73
Cf. Article 45 of the OAS Charter: “The Member States, convinced that man can only achieve the full realization
of his aspirations within a just social order, along with economic development and true peace, agree to dedicate every
effort to the application of the following principles and mechanisms: […] b) Work is a right and a social duty, it gives
dignity to the one who performs it, and it should be performed under conditions, including a system of fair wages, that
ensures life, health, and a decent standard of living for the worker and his family, both during his working years and in
his old age, or when any circumstance deprives him of the possibility of working; c) Employers and workers, both rural
and urban, have the right to associate themselves freely for the defense and promotion of their interests, including the
right to collective bargaining and the workers' right to strike, and recognition of the juridical personality of associations
and the protection of their freedom and independence, all in accordance with applicable laws […].”
74
Cf. Article 46 of the OAS Charter: “The Member States recognize that, in order to facilitate the process of Latin
American regional integration, it is necessary to harmonize the social legislation of the developing countries, especially
in the labor and social security fields, so that the rights of the workers shall be equally protected, and they agree to
make the greatest efforts possible to achieve this goal.”
75
Cf. Article 34(g) of the OAS Charter: “The Member States agree that equality of opportunity, the elimination of
extreme poverty, equitable distribution of wealth and income and the full participation of their peoples in decisions
relating to their own development are, among others, basic objectives of integral development. To achieve them, they
likewise agree to devote their utmost efforts to accomplishing the following basic goals: […] g) Fair wages, employment
opportunities, and acceptable working conditions for all.”
76
Cf. Case of Spoltore v. Argentina. Preliminary objection, merits, reparations and costs. Judgment of June 9,
2020. Series C No. 404, para. 99, and Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus v.
Brazil, supra, para. 155.
77
American Declaration, Article XIV.
78
International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 7(b).
24
Inspection Convention (No. 81) of 1947 79 to which Honduras is a party, requires States to
“maintain a system of labor inspection in industrial workplaces” 80 which “shall apply to all
workplaces in respect of which legal provisions relating to working conditions and the
protection of workers while engaged in their work are enforceable by labor inspectors.” 81 In
addition, States shall “secure the enforcement of the legal provisions relating to working
conditions and the protection of workers while engaged in their work, such as provisions
relating to hours, wages, safety, health and welfare, the employment of children and young
persons, and other connected matters, in so far as such provisions are enforceable by labor
inspectors.” 82
71. For its part, the ILO Convention on the Worst Forms of Child Labour (No. 182) of
1999, 83 to which Honduras is a party, establishes that States “shall take immediate and
effective measures to secure the prohibition and elimination of the worst forms of child labor
as a matter of urgency” 84 and shall “establish or designate appropriate mechanisms to monitor
the implementation of the provisions giving effect” 85to this Convention. In addition, States
“shall design and implement programs of action to eliminate as a priority the worst forms of
child labor” 86 and shall also “take all necessary measures to ensure the effective
implementation and enforcement of the provisions giving effect to this Convention including
the provision and application of penal sanctions or, as appropriate, other sanctions.” 87 In its
recommendation on the worst forms of child labor, the ILO also stated that in determining
and identifying where these types of child labor exist, consideration should be given to work
carried out under water, and work under particularly difficult conditions such as work for long
hours or during the night. 88
72. In addition to being widely recognized in the international corpus iuris, 89 the right to
equitable and satisfactory working conditions has also been recognized in the constitutions
and legislation of those countries that have accepted the Inter-American Court’s contentious
79
Ratified by Honduras on May 6, 1983.
80
International Labour Organization. Labour Inspection Convention, 1947 (No. 81), Article 1.
81
ILO Convention No. 81, supra, Article 2(1).
82
ILO Convention No. 81, supra, Article 3(1)(a).
83
Ratified by Honduras on October 25, 2001.
84
International Labour Organization. Worst Forms of Child Labour Convention, 1999 (No. 182) Article 1.
85
ILO Convention No. 182, supra, Article 5.
86
87
88
International Labour Organization. Recommendation on the worst forms of child labour, 1999 (No. 190), points
2 and 3.
89
See, also: European Social Charter, Article 2; Charter of Fundamental Rights of the European Union, Article
31, and African Charter on Human and Peoples’ Rights, Article 15.
25
jurisdiction 90 and, in particular, by the Honduran State. 91
73. That said, from Article 45 of the OAS Charter, interpreted in light of the American
Declaration and of the other instruments mentioned, it is possible to derive constituent
elements of the right to equitable and satisfactory working conditions that ensure the safety,
health and hygiene of the worker, such as, for example, that it aims to prevent work-related
injuries, illnesses and deaths. 92
74. In particular, the Court notes that an integral part of the right to work in equitable and
satisfactory conditions is “the prevention of occupational accidents and diseases” as a means
of guaranteeing the health of the worker. With respect to occupational safety and health, the
Committee on Economic, Social and Cultural Rights in General Comment No. 23 indicated the
following:
Preventing occupational accidents and disease is a fundamental aspect of the right to just
and favourable working conditions, and is closely related to other Covenant rights, in
particular the right to the highest attainable level of physical and mental health. States
parties should adopt a national policy for the prevention of accidents and work-related
health injury by minimizing hazards in the working environment and ensuring broad
participation in the formulation, implementation and review of such a policy, in particular
of workers, employers and their representative organizations. While full prevention of
occupational accidents and diseases might not be possible, the human and other costs of
not taking action far outweigh the financial burden on States parties for taking immediate
preventative steps that should be increased over time. 93
75. Thus, the Court reiterates that this right means that workers should be able to perform
their work in adequate conditions of safety, hygiene and health that prevent occupational
accidents and diseases. This is especially relevant in activities that involve significant risks to
the life and integrity of persons, 94 and particularly of children. In compliance with the State’s
obligation to guarantee this right, and especially in light of Honduran legislation, this right
implies adherence to the provisions of the Fishing Regulations and Title V of the Honduran
90
Cf. Constitution of Argentina, Article 14 bis, and Employment Contract Act, No. 20,744, Article 75; Constitution
of the Plurinational State of Bolivia, Article 46 and General Labor Law, Article 67; Constitution of the Republic of
Chile, Article 5 and 19.16, Labor Code, Article 153 and Law 16.744 on risks of occupational accidents and diseases;
Constitution of Colombia, Articles 25 and 53 and Decree 1072 of 2015 or Decree regulating the employment sector,
Volume 2, Part 2, Title 4 (Occupational Risks), Chapter 6; Constitution of the Republic of Costa Rica, Article 56 and
Labor Code, Articles 283 and 284; Constitution of the Republic of Ecuador, Article 33 and Labor Code, Articles 38
and 42; Constitution of El Salvador, Article 2 and Labor Code Articles 106 and 314; Constitution of Guatemala, Article
101 and Labor Code, Articles 61, 122, 148, 197 and 278; Constitution of the Republic of Haiti, Article 35 and Labor
Code Articles 438-441 and 451-487; Constitution of Mexico, Article 123 and Federal Labor Law, Articles 23, 166,
175, 541 and 542; Constitution of the Republic of Nicaragua, Article 83 and Labor Code, Articles 100 to 105;
Constitution of Panama, Article 64 and Labor Code, Articles 282 and 284; Constitution of the Republic of Paraguay,
Articles 86, 89, 90, 92 and 99 and Labor Code, Articles 36, 49, 194, 273, 274 and 398; Constitution of Peru, Articles
22 and 24 and General Labor Law, Article 322; Constitution of the Dominican Republic, Article 62 and Decree 522-
06 of 2006 (Regulations on occupational health and safety); Constitution of the Republic of Suriname, Article 28;
Constitution of the Oriental Republic of Uruguay, Articles 7, 53 and 54, and Law 5.032 of 1914 and Law 5.350 of
November 19, 1915.
91
Constitution of the Republic of Honduras, Article 128 and Labor Code, Articles 391 and 395.
92
Cf. Case of Spoltore v. Argentina, supra, para. 98, and Case of the Workers of the Fireworks Factory in Santo
93
Committee on Economic, Social and Cultural Rights. General Comment No. 23 (2016) on the right to just and
favorable conditions of work (Article 7 of the International Covenant on Economic, Social and Cultural Rights),
E/C.12/GC/23, April 27, 2016, paras. 25 and 29.
94
Case of Spoltore v. Argentina, supra, para. 99, and Case of the Workers of the Fireworks Factory in Santo
26
Labor Code. These establish specific obligations for employers to ensure the hygiene, safety
and health of workers, the proper maintenance of diving equipment and boats, the provision
of first aid medical equipment, actions aimed at preventing occupational hazards and
promoting the good health of workers, and the obligation to monitor these conditions, which
is also the responsibility of the labor authorities.
C.2.2. Impairment of the right to just and satisfactory working conditions that
ensure the safety, health and hygiene of the worker in the specific case
76. In the instant case, the State had the obligation to guarantee fair and satisfactory
working conditions in the terms described in the preceding paragraphs, and specifically in the
Labor Code and the Fishing Regulations, upon their entry into force. However, it is clear from
the facts acknowledged by the State that all the victims worked in precarious, unhealthy,
unsafe and overcrowded conditions, on board vessels that did not meet the safety standards
required for a hazardous activity, or the conditions that would help avoid or prevent
occupational accidents. The Court also notes that the divers did not receive training from their
employers on safety measures for underwater fishing, that the equipment they used was
substandard, that they did not receive adequate food on board the fishing boats, and that
they were threatened by the boat captains.
77. All this occurred without the State complying with the regulations contained in Title V
of the Labor Code, or the international instruments ratified by Honduras with respect to the
protection of workers and, after 2001, the provisions specifically regulating underwater fishing
contained in the Fishing Regulations. The Court notes that the authorities failed in their duty
to monitor and oversee the working conditions of the victims in this case, and to take effective
steps to prevent accidents, despite the fact that dive fishing in La Mosquitia was an activity
that implied risks to workers. In this regard, the Court also observes that the Fishing
Regulations established a series of “General Provisions for health and safety on fishing
vessels,” including a requirement for owners to maintain their vessels “in good seaworthy
condition and suitably equipped for their destination and use” as well as the obligation of
captains to “adopt the necessary precautionary measures to maintain the stability of the
vessel.” 95
78. In view of the foregoing, the State failed to fulfill its obligation to guarantee the right
to just, equitable and satisfactory working conditions that ensure the safety, health and
hygiene of the worker, since it failed to prevent occupational accidents and guarantee the
acceptability and quality of the work of the victims in this case. This failure is even more
significant if one considers the impact of the events in this case, which seriously affected the
lives and personal integrity of the divers who suffered diseases and disabilities as a result. In
the case of the child Licar Méndez Gutiérrez, he was allowed to carry out work which posed a
serious risk to his health and life. In this case, although Honduras fulfilled its duty to regulate
the work carried out by the victims through the Fishing Regulations and the Labor Code (supra
para. 57), it failed to effectively implement those regulations, and therefore to exercise control
and oversight over the working conditions, as a necessary measure to prevent accidents and
ensure the enjoyment of just and favorable working conditions. This, despite the fact that the
State is required to supervise such conditions, particularly when dangerous activities are
involved. Therefore, the State violated Article 26 of the American Convention, in relation to
Articles 1(1) and 2 of the same instrument.
C.3. Right to health and social security
95
Occupational Health and Safety Regulations for Underwater Fishing, Article 13.
27
C.3.1. The content of the right to health
79. The Court has pointed out that, in order to identify those rights that can be
interpretatively derived from Article 26 of the American Convention, one must consider that
this provision refers directly to the economic, social, educational, scientific and cultural norms
contained in the OAS Charter. From a reading of the latter instrument, the Court has noted
that Article 34(i) 96 and 34(l) 97 of the Charter establishes, among the basic objectives of
integral development, the “[p]rotection of man's potential through the extension and
application of modern medical science” as well as the “[c]onditions that allow for a healthy,
productive and dignified life.” For its part, Article 45(h) 98 emphasizes that “man can only
achieve the full realization of his aspirations within a just social order,” for which reason the
States agree to undertake efforts to apply these principles, including the: “h) development of
an efficient social security policy.”
80. Thus, as it has indicated in several cases, the Court reiterates that there is a reference
with a sufficient degree of specificity to infer the existence to the right to health in the OAS
Charter. Consequently, the Court reaffirms that the right to health is a right protected under
Article 26 of the Convention. 99
81. With regard to the content and scope of this right, the Court recalls that Article XI of
the American Declaration establishes the right to health by stating that “[e]very person has
the right to the preservation of his health through sanitary and social measures relating to […]
medical care, to the extent permitted by public and community resources.” 100 Similarly, Article
10 of the Protocol of San Salvador states that “everyone shall have the right to health,
understood to mean the enjoyment of the highest level of physical, mental and social well-
being” and establishes that health is a public good. 101 The Protocol adds that, among the
measures to ensure the right to health, States should promote “universal immunization
against the principal infectious diseases,” the “prevention and treatment of endemic,
occupational and other diseases” and “the satisfaction of the health needs of the highest risk
groups and of those whose poverty makes them the most vulnerable.”
96
Article 34(i) of the OAS Charter establishes: “The Member States agree that equality of opportunity, the
elimination of extreme poverty, equitable distribution of wealth and income and the full participation of their peoples in
decisions relating to their own development are, among others, basic objectives of integral development. To achieve
them, they likewise agree to devote their utmost efforts to accomplishing the following basic goals: […] i) Protection of
man's potential through the extension and application of modern medical science;”
97
Article 34(l) of the OAS Charter establishes: “The Member States agree that equality of opportunity, the
elimination of extreme poverty, equitable distribution of wealth and income and the full participation of their peoples in
decisions relating to their own development are, among others, basic objectives of integral development. To achieve
them, they likewise agree to devote their utmost efforts to accomplishing the following basic goals: […] l) Urban
conditions that offer the opportunity for a healthful, productive, and full life;”
98
Article 45(h) of the OAS Charter establishes: “The Member States, convinced that man can only achieve the
full realization of his aspirations within a just social order, along with economic development and true peace, agree to
dedicate every effort to the application of the following principles and mechanisms: h) Development of an efficient social
security policy.”
99
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C
No. 349, para. 106, and Case of Guachalá Chimbo et al. v. Ecuador. Merits, reparations and costs. Judgment of March
26, 2021. Series C No. 423, para. 97.
100
Approved at the Ninth International Conference of American States held in Bogotá, Colombia, 1948.
101
Article 10(1) of the Protocol of San Salvador states: “Everyone shall have the right to health, understood to
mean the enjoyment of the highest level of physical, mental and social well-being. 2. In order to ensure the exercise
of the right to health, the States Parties agree to recognize health as a public good and, particularly, to adopt the
following measures to ensure that right: a. Primary health care, that is, essential health care made available to all
individuals and families in the community; [and] b. Extension of the benefits of health services to all individuals
subject to the State’s jurisdiction.”
28
82. The right to health is also recognized in Article 145 of the Honduran Constitution. 102 The
Court likewise observes a broad regional consensus in the consolidation of the right to health,
which is explicitly recognized in the constitutions and domestic laws of numerous States of
the region, including Argentina, Barbados, Bolivia, Brazil, Colombia, Costa Rica, Chile,
Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Mexico, Nicaragua, Panama,
Paraguay, Peru, Suriname, Uruguay and Venezuela. 103
83. In relation to the foregoing, the Court recalls that the general obligation to protect health
translates into the State’s duty to ensure access to essential health services by guaranteeing
effective and quality medical care and promoting the improvement of the population’s
health. 104 This right encompasses timely and appropriate health care in accordance with the
principles of availability, accessibility, acceptability and quality, the application of which will
depend on the prevailing conditions in each State. 105 The fulfilment of the State’s obligation
to respect and guarantee this right requires it to pay special attention to vulnerable and
marginalized groups. Such efforts must be implemented progressively, in accordance with
available resources and the applicable domestic legislation. 106
84. Regarding the health care of persons who work in underwater fishing activities, 107 the
Court notes that PAHO’s considerations provide an authoritative reference to clarify some
international obligations of the State with respect to health care for persons who suffer diving
accidents while engaged in underwater fishing activities, and particularly the victims in this
case. These considerations establish that Miskito divers who suffer accidents should receive
health care consisting of primary prevention (which includes the protection of persons);
secondary prevention (which allows for the care of people at risk, including early diagnosis
and timely treatment), and tertiary prevention (which involves care for sick people, including
rehabilitation and reinsertion into the labor market). Thus, divers suffering from
decompression sickness or other diving-related illnesses must be immediately provided with
102
Article 145 states: “The right to the protection of one's health is hereby recognized. It is everyone's duty to
participate in the promotion and preservation of individual and community health. The State shall maintain a
satisfactory environment for the protection of everyone's health.”
103
Among the constitutional norms of the States Parties to the American Convention are: Argentina (art. 10);
Barbados (art. 17.2.A); Bolivia (art. 35); Brazil (art. 196); Chile (art. 19) Colombia (art. 49); Costa Rica (art. 46);
Ecuador (art. 32); El Salvador (art. 65); Guatemala (arts. 93 and 94); Haiti (art. 19); Mexico (art. 4); Nicaragua
(art. 59); Panama (art. 109); Paraguay (art. 68); Peru (art. 70); Dominican Republic (art. 61); Suriname (art. 36);
Uruguay (art. 44), and Venezuela (art. 83). Cf. Constitutional Chamber, Supreme Court of Justice of Costa Rica,
Resolution No. 13505 – 2006, of September 12, 2006, Considering paragraph III; Constitutional Court of Colombia,
Judgment C-177 of 1998; Supreme Court of Mexico, Jurisprudence Thesis 8/2019 (10ª). Right to the Protection of
Health. Individual and social dimension; Constitutional Court of Ecuador, Judgment No. 0012-09-SIS-CC, October 8,
2009.
104
Cf. Case of Poblete Vilches et al. v. Chile, supra, para. 118, and Case Guachalá Chimbo et al. v. Ecuador,
supra, para. 101.
105
Cf. Cf. Case of Poblete Vilches et al. v. Chile, supra, paras. 120 and 121, and Case Guachalá Chimbo et al. v.
Ecuador, supra, para. 101.
106
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment
of August 23, 2018. Series C No. 359, para. 107, and Case Guachalá Chimbo et al. v. Ecuador, supra, para. 101.
107
The Court has indicated that in each case it is necessary to consider the specific aspects to be taken into
account in determining the State’s obligations related to the medical treatment that persons should receive, noting
that medical science is continually advancing and, consequently, the references cited here as an illustration do not
exclude or call into question more recent discoveries. In addition, the Court takes no position on technical discussions
or matters relating to the medical and biological sciences. Cf. Case of Cuscul Pivaral et al. v. Guatemala, supra, para.
39, and Case of Hernández v. Argentina. Preliminary objection, merits, reparations and costs. Judgment of November
22, 2019. Series C No. 395, para. 78.
29
specific care in a hyperbaric chamber, and with rehabilitation treatments that allow for
adequate recovery and social reintegration. 108
C.3.2. The content of the right to social security
85. This Court has pointed out that Articles 3(j), 109 45(b), 110 45(h) 111 and 46 of the OAS
Charter contain a series of norms that establish the right to social security. 112 In particular, the
Court has noted that Article 3(j) of the OAS Charter states that “social justice and social
security are bases of lasting peace.” Also, Article 45(b) 113 of the OAS Charter indicates that
“b) [w]ork is a right and a social duty, it gives dignity to the one who performs it, and it
should be performed under conditions, including a system of fair wages, that ensure life,
health, and a decent standard of living for the worker and his family, both during his working
years and in his old age, or when any circumstance deprives him of the possibility of working.”
Furthermore, Article 45(h) 114 of the Charter establishes that “man can only achieve the full
realization of his aspirations within a just social order” and therefore States agree to devote
efforts to the application of certain principles and mechanisms, among them the “(h)
[d]evelopment of an efficient social security policy.” Furthermore, in Article 46 of the Charter,
the Member States recognize that “in order to facilitate the process of Latin American regional
integration, it is necessary to harmonize the social legislation of the developing countries,
especially in the labor and social security fields, so that the rights of the workers shall be equally
protected, and they agree to make the greatest efforts possible to achieve this goal.”
86. Thus, the Court has considered that there is a reference to the right to social security
with a sufficient level of specificity to infer its existence and implicit recognition in the OAS
108
(evidence file, folios 6364-6367).
109
Article 3(j) of the OAS Charter establishes: “The American States reaffirm the following principles: j) Justice
and social security are bases of a lasting peace.”
110
Article 45(b) of the OAS Charter establishes: “The Member States, convinced that man can only achieve the
dedicate every effort to the application of the following principles and mechanisms: b) Work is a right and a social duty,
it gives dignity to the one who performs it, and it should be performed under conditions, including a system of fair
wages, that ensure life, health, and a decent standard of living for the worker and his family, both during his working
111
Article 45(h) of the OAS Charter establishes: “The Member States, convinced that man can only achieve the
dedicate every effort to the application of the following principles and mechanisms: h) [d]evelopment of an efficient
social security policy.”
112
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 173, and Case of the National Association of Discharged and Retired Employees of the
National Tax Administration Superintendence (ANCEJUB-SUNAT) v. Peru. Preliminary objections, merits, reparations
and costs. Judgment of November 21, 2019. Series C No. 394, para. 156.
113
Article 45(b) of the OAS Charter establishes: “The Member States, convinced that man can only achieve the
dedicate every effort to the application of the following principles and mechanisms:: b) Work is a right and a social
duty, it gives dignity to the one who performs it, and it should be performed under conditions, including a system of fair
wages, that ensure life, health, and a decent standard of living for the worker and his family, both during his working
114
Article 45(h) of the OAS Charter establishes: “ The Member States, convinced that man can only achieve the
dedicate every effort to the application of the following principles and mechanism: h) [d]evelopment of an efficient
social security policy.”
30
Charter. Consequently, the right to social security is a right protected by Article 26 of the
Convention. 115
87. Regarding the content and scope of this right, the Court has indicated that Article XVI
of the American Declaration recognizes the right to social security by stating that everyone
has the right to “social security which will protect him from the consequences of unemployment,
old age, and any disabilities arising from causes beyond his control that make it physically or
mentally impossible for him to earn a living.” 116 Likewise, Article 9 of the Protocol of San
Salvador establishes that “1. Everyone shall have the right to social security protecting him
from the consequences of old age and of disability which prevents him, physically or mentally,
from securing the means for a dignified and decent existence. In the event of the death of a
beneficiary, social security benefits shall be applied to his dependents;” and 2. “In the case
of persons who are employed, the right to social security shall cover at least medical care and
an allowance or retirement benefit in the case of work accidents or occupational disease and,
in the case of women, paid maternity leave before and after childbirth.”
88. In the universal sphere, Article 22 of the Universal Declaration of Human Rights
establishes that “[e]veryone, as a member of society, has the right to social security and is
entitled to the realization, through national effort and international co-operation and in accordance
with the organization and resources of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.” Similarly, Article 25
emphasizes that “[e]veryone has the right to an adequate standard of living […] and the right
to security in the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.” For its part, Article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes “the
right of everyone to social security, including social insurance.” 117
89. The right to social security is also recognized at the constitutional level in Honduras,
in Articles 142 to 144 of the 1982 Constitution. 118
90. In relation to the foregoing, the Court reiterates that the right to social security is a
right that seeks to protect the individual from future contingencies which, should they occur,
could have harmful consequences for that person; therefore, measures should be adopted to
protect him or her. 119 In particular, this Court has adopted the ILO criterion that the right to
social security is the “protection that a society provides to individuals and households to
115
Case of Muelle Flores v. Peru, supra, para. 173, and Case of the National Association of Discharged and Retired
Employees of the National Tax Administration Superintendence (ANCEJUB-SUNAT) v. Peru, supra, para. 157.
116
Adopted at the Ninth International Conference of the Americas held in Bogotá, Colombia, 1948.
117
Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI),
of December 16, 1966. Entry into force: January 3, 1976.
118
“ARTICLE 142: Every person is entitled to the security of his economic means of subsistence in the event of
work disability or inability to obtain remunerated employment. Social Security services shall be furnished and
administered by the Honduran Social Security Institute and shall cover cases of sickness, maternity, family allowance,
old-age, orphanhood, forced lockouts, work injury, involuntary unemployment; occupational disease, and all other
contingencies affecting the capacity to produce. The State shall establish social welfare institutions that shall function
unified in a single state system with the contribution of all interested parties and the State. ARTICLE 143: The State,
employers and workers are required to contribute to the financing, improvement and expansion of social security.
The social security system shall be established in a gradual and progressive way, both as to the type of risks covered
as well as the geographic zones and the categories of protected workers. ARTICLE 144: It shall be considered in the
public interest to expand the social security system to urban and rural workers.”
119
Cf. Case of Muelle Flores v. Peru, supra, para. 183, and Case of the National Association of Discharged
and Retired Employees of the National Tax Administration Superintendence (ANCEJUB-SUNAT) v. Peru, supra, para.
167.
31
ensure access to health care and guarantee income security, particularly in the event of old
age, unemployment, sickness, invalidity, work injury, maternity or loss of a breadwinner. 120
Similarly, taking the position of the Committee on Economic, Social and Cultural Rights, 121
the Court has considered that, although the elements of the right to social security may vary
according to different conditions, this right must be ensured in accordance with the principles
of availability and accessibility, covering the relevant social risks and contingencies, and that
the benefits must be adequate and must be considered in relation to other rights. 122
91. The Court highlights the fact that the Committee on Economic, Social and Cultural
Rights, in General Comment No. 19, stated that the right to social security requires the
establishment and operation of a system to ensure that benefits are provided for the relevant
social risks and contingencies. The social security system must encompass health care, so
that all persons have adequate access to health services; this should also include access to
preventive and curative measures. Similarly, States should ensure the protection of workers
who are injured in the course of their employment or other productive work and, in this
regard, they must provide adequate support to persons with disabilities. Benefits, whether in
cash or in kind, must be adequate in amount and duration so that everyone may exercise his
or her rights. 123
C.3.3. Impairment of the right to health and social security in the specific case
92. In the instant case, as was acknowledged by the State, the Court notes that none of the
34 victims who suffered diving accidents were taken immediately to receive medical treatment
by the captains of the boats on which they worked. 124 This, despite the fact that they
presented symptoms such as dizziness or loss of mobility in their extremities after deep dives.
Such situations occurred without the State conducting inspections to verify that the boats had
the necessary means to provide immediate medical attention on board, despite the fact that
the Fishing Regulations established this obligation. 125 The Court further notes that the State
failed to take action to ensure that divers would receive such treatment when they had diving
accidents, such as the installation of an ambulance boat or a health center to attend to the
consequences of these accidents, even though it was aware of the problems faced by divers
and the need to take steps to provide medical treatment for those who suffered accidents. 126
120
169, and ILO, “Facts on Social Security”, publication of the International Labor Office, Geneva, Switzerland, June 6,
2003.
121
Committee on Economic, Social and Cultural Rights. General Comment No. 19. The Right to Social Security
(Article 9), February 4, 2008, paras. 9 to 28.
122
170.
123
Cf. UN, Committee on Economic, Social and Cultural Rights, General Comment No. 19, The Right to Social
Security (Article 9), February 4, 2008, para. 11, 13, 17, 21 and 22.
124
Occupational Health and Safety Regulations for Underwater Fishing. The regulations state the following: Article
6.- All employers are required to: “[t]ransfer workers immediately and appropriately from the fishing vessel to the
nearest hospital or medical center in the event of occupational risk or any other situation affecting the health of
workers.”
125
Occupational Health and Safety Regulations for Underwater Fishing, Article 6. The regulations state the
following: Article 6- All employers are required to: [i]nstall on fishing vessels basic first aid equipment and to carry
essential medicines and treatment materials at all times.
126
In its Merits Report, the Inter-American Commission stated that in 2002, the Ministries of Labor and Social
Security and of the Interior and Justice, held a meeting with the AMHBLI in which they discussed the need for the
State to deploy an ambulance boat, which did not occur. Likewise, the Commission observed that in the claims filed
32
93. The Court also recalls that States must provide the necessary health services to prevent
potential disabilities, as well as to prevent and minimize the appearance of further
disabilities. 127 On this point, with regard to persons with disabilities the Committee on
Economic, Social and Cultural Rights has established that: “insofar as special treatment is
necessary, States parties are required to take appropriate measures, to the maximum extent
of their available resources, to enable such persons to overcome any disadvantages, in terms
of the enjoyment of the rights specified in the Covenant, flowing from their disability.” 128
Furthermore, Article 18 of the Protocol of San Salvador establishes that:
Everyone affected by a diminution of his physical or mental capacities is entitled to

receive special attention designed to help him achieve the greatest possible
development of his personality. The States Parties agree to adopt such measures as
may be necessary for this purpose and, especially, to:
a. Undertake programs specifically aimed at providing the handicapped with the
resources and environment needed for attaining this goal, including work programs
consistent with their possibilities and freely accepted by them or their legal
representatives, as the case may be;
b. Provide special training to the families of the handicapped in order to help them
solve the problems of coexistence and convert them into active agents in the physical,
mental and emotional development of the latter;
c. Include the consideration of solutions to specific requirements arising from the needs
of this group as a priority component of their urban development plans;
d. Encourage the establishment of social groups in which the handicapped can be
helped to enjoy a fuller life.
94. Similarly, among the obligations included in the right to health, the Convention on the
Rights of Persons with Disabilities establishes that “States Parties shall provide those health
services needed by persons with disabilities specifically because of their disabilities, including
early identification and intervention, as appropriate, and services designed to minimize and
prevent further disabilities, including among children and older persons.” 129 This is related to
the right of persons with disabilities to live independently and to be included in the
community, 130 for which States must take steps “to enable persons with disabilities to attain
and maintain maximum independence, full physical, mental, social and vocational ability, and
full inclusion and participation in all aspects of life.” 131
95. In this regard, the Court considers that the State had the obligation to ensure
appropriate services for the rehabilitation and reintegration of the surviving divers who
acquired a disability as a result of the accidents they suffered. On this point, PAHO stated in
before the domestic courts for the accidents that occurred, reference was made to the health of the victims and to
the lack of adequate care. However, the State did not adopt any health care measures (merits file, folio 65).
127
Cf. Case of Guachalá Chimbo et al. v. Ecuador, supra, para. 143, citing Cf. Committee on Economic, Social
and Cultural Rights, General Comment N°. 5: Persons with Disabilities, E/1995/22, December 9, 1994, para. 34;
Standard Rules on the Equalization of Opportunities for Persons with Disabilities, adopted by the UN General
Assembly, 48th session, Annex to Resolution 48/96, Article 3; Declaration on the Rights of Disabled Persons,
Proclaimed by UN General Assembly Resolution 3447 (XXX) of December 9, 1975, para. 6; World Program of Action
Concerning Disabled Persons, approved by General Assembly Resolution 37/52, para. 98, of December 3, 1982 and
CRDP, Article 25.b.
128
Cf. Committee on Economic, Social and Cultural Rights. General Comment N°. 5: Persons with Disabilities,
E/1995/22, December 9, 1994, para. 5.
129
CRPD, Article 25.
130
Cf. Case of Guachalá Chimbo et al. v. Ecuador, supra, para. 143, and CRPD, Article 19.
131
Cf. Case of Guachalá Chimbo et al. v. Ecuador, supra, para. 143, and CRPD, Article 26.
33
its report that “[…] although access to treatment in hyperbaric chambers is essential, the care
of the patient does not end with the management of the emergency situation, since […]
despite specific treatment, the after-effects of decompression sickness are serious and the
role of rehabilitation services and productive alternatives is fundamental for the adequate
recovery of the affected divers.” 132 However, the State did not ensure rehabilitation treatment
or the reintegration of the victims who acquired disabilities. 133 Therefore, the State’s failure
to provide special medical care for the rehabilitation of the victims who survived diving
accidents and acquired a disability constituted a failure to ensure the right to health in
accordance with the principles of accessibility and quality of the health services.
96. The Court also notes that the lack of access to a health system that offered preventive
or curative services for the accidents suffered, and for the disabilities that ensued as a result
of those accidents, constituted a violation of the victims’ right to social security. The State’s
total failure to guarantee access to said system constituted a breach of its obligations under
the principle of availability, inasmuch as there was a total absence of social security in La
Mosquitia region that would allow them to enjoy the benefits corresponding to the risks
related to dive fishing, and of accessibility, since the victims were not covered by the social
security system, because they were informal workers who did not have employment
contracts with the fishing companies. As mentioned previously, this occurred without the
State exercising any supervision or oversight to verify the victims’ working conditions, such
as whether they had work contracts and whether the employers complied with their social
security obligations. As a result, none of the victims had real access to the Honduran social
security system.
97. Therefore, this Court concludes that the State failed to comply with its obligation to
provide acceptable, available and quality medical care to the victims of diving accidents, as
well as its obligation to ensure access to the social security system for the survivors of such
accidents, particularly those who suffered a disability, in violation of the right to health and
social security contained in Article 26 of the Convention, in relation to Articles 1(1) and 2 of
the same instrument.
C.4. Equality and non-discrimination
98. The Court has indicated that the notion of equality springs directly from the oneness
of the human family and is linked to the essential dignity of the individual. That principle
cannot be reconciled with the notion that a given group has the right to privileged treatment
because of its perceived superiority. It is equally irreconcilable with that notion to characterize
a group as inferior and treat it with hostility or otherwise subject it to discrimination in the
enjoyment of rights which are accorded to others not so classified. 134 Thus, the States must
refrain from carrying out any action that, in any way, directly or indirectly, is aimed at creating
132
(evidence file, folios 6365).
133
The Commission indicated that it has not been able to determine the exact number of victims who currently
have disabilities; therefore, the State must make a determination regarding those surviving victims who are in a
situation of disability (Merits Report, folio 78). However, based on the facts proven is appears that the following
persons may have acquired some type of disability: Flaviano Martinez López; Carcoth Padmoe Miller; Cooper
Cresencio Jems, Roberto Flores Esteban, Daniel Dereck Thomas, Amistero Bans Valeriano, Ralph Valderramos, Félix
Osorio Presby, Rolando Mónico Thomas.
134
Cf. Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica. Advisory Opinion
OC-4/84 of January 19, 1984. Series A No. 4, para. 55, and Advisory Opinion OC-27/21, supra, para. 152.
34
situations of de jure or de facto discrimination. 135 The Court has also indicated in its case law
that, in the current stage of evolution of international law, the fundamental principle of
equality and non-discrimination has entered the realm of ius cogens because the entire legal
structure of national and international public order rests on it, and it is a fundamental principle
that permeates all laws. 136
99. The right to equality and non-discrimination encompasses two concepts: one related
to the prohibition of arbitrary differences in treatment, and one related to the obligation of
States to create conditions of real equality for groups that have been historically excluded or
who are at greater risk of suffering discrimination. 137
100. With respect to the first concept, the Court has stated that not every difference in
treatment will be considered discriminatory: it is only considered discriminatory when it has
no objective and reasonable justification, 138 that is, when it does not seek a legitimate purpose
and when the means used are disproportionate to the purpose sought. 139 Regarding the
second concept, States are obliged to take affirmative action in order to reverse or change
any discriminatory situations that exist in their societies that prejudice a specific group of
persons. This involves the special obligation of protection that the State must exercise with
regard to the actions and practices of third parties who, with its tolerance or acquiescence,
create, maintain or encourage discriminatory situations. 140
101. In relation to the foregoing, this Court has established that a person’s ethnic origin is
a category protected under Article 1(1) of the Convention. Consequently, no norm, decision
or practice of domestic law, applied either by State authorities or by private individuals, may
reduce or restrict in any way the rights of an individual based on his ethnic origin. 141 The
Court has determined that ethnic groups are communities of individuals who share, inter alia,
characteristics of a socio-cultural nature, such as cultural, linguistic and spiritual affinities as
well as historical and traditional origins. Indigenous peoples fall within this category, and the
Court has recognized that they have specific characteristics that comprise their cultural
identity, 142 such as their customary law, their economic and social characteristics and their
values, practices and customs. 143
102. The Court has also established that, although poverty and disability are not considered
special categories of protection in the literal sense of Article 1(1) of the American Convention,
135
Cf. Juridical condition and rights of undocumented migrants. Advisory Opinion OC-18/03 of September 17,
2003. Series A No. 18, para. 103, and Advisory Opinion OC-27/21, supra, para. 152.
136
Cf. Advisory Opinion OC-18/03, para. 101, and Advisory Opinion OC-27/21, supra, para. 152.
137
Cf. Advisory Opinion OC-18/03, supra, para. 92, and Advisory Opinion OC-27/21, supra, para. 158.
138
Cf. Case of I.V. v. Bolivia. Preliminary objections, merits, reparations and costs. Judgment of November 30,
2016. Series C No. 329, para. 240, and Advisory Opinion OC-27/21, supra, para. 159.
139
Cf. Case of Norín Catrimán (Leaders, Members and Activist of the Mapuche Indigenous People) et al. v. Chile. Merits,
reparations and costs. Judgment of May 19, 2014. Series C No. 279, para. 200, and Advisory Opinion OC-27/21, supra,
para. 159.
140
Cf. Advisory Opinion OC-18/03, supra, para. 104, and Advisory Opinion OC-27/21, supra, para. 160.
141
Cf. Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile,
supra, paras. 204-206.
142
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, reparations and costs. Judgment of June
17, 2005. Series C No. 125, para. 51, and Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche
Indigenous People) v. Chile, supra, para. 204.
143
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, para. 63, and Case of Norín Catrimán et al. (Leaders,
Members and Activist of the Mapuche Indigenous People) v. Chile, supra, para. 204.
35
this is not an obstacle to consider that discrimination on these grounds is prohibited by the
norms of the Convention. This is so for two reasons: first, because the list contained in Article
1(1) of the Convention is not exhaustive but merely illustrative; and second, because poverty
may well be understood to fall within the category of “economic status” to which the
aforementioned article expressly refers; or in relation to other categories of protection, such
as “social origin” or “any other social condition,” 144 based on its multidimensional nature,
while disability is included in the category of “any other social condition.” 145
103. In this regard, the Court recalls that States are obliged to adopt positive measures to
reverse or change any discriminatory situations existing in their societies that affect a specific
group of persons. This entails the special duty of protection that the State must exercise with
respect to the actions and practices of third parties who, with its tolerance or acquiescence,
create, maintain or favor discriminatory situations. Furthermore, States are obliged to adopt
positive measures, to be determined according to the particular protection needs of the
subjects of law, whether due to their personal condition or to the specific situation in which
they find themselves, such as extreme poverty or exclusion. 146
104. Thus, the Court notes that the victims in this case are members of an indigenous
community who did not have access to another source of income and were forced to work as
divers in underwater fishing activities in conditions of vulnerability, which exposed them to
the abusive situation described in this judgment. For people living in the department of
Gracias a Dios, and particularly in the region of La Mosquitia, the diving work offered to them
was the main, if not the only employment option, since the area is known for its lack of job
opportunities. The State acknowledged that the victims lived in a general situation of neglect,
indifference and lack of a governmental presence, and that it was aware of the situation faced
by Miskito indigenous people and the abuses committed by the companies involved in fishing
activities in the area. In this context, the State’s failure to adopt measures aimed at changing
the situations that violated the human rights of the victims who, as members of an indigenous
people belong to a vulnerable group, constituted an act of discrimination.
105. In its 2019 Report on the Situation of Human Rights in Honduras, the Office of the
United Nations High Commissioner for Human Rights pointed out that “development and
investment projects in [Miskito] indigenous lands and territories take place in contexts of
profound marginalization and poverty.” It stated that “in the department of Gracias a Dios,
78 per cent of households are indigenous, and some 90 per cent experience multidimensional
poverty. Serious gaps in the enjoyment of core human rights tend to produce undue pressure
on indigenous communities, which may agree to projects in exchange for the promises made
by private business companies to provide services such as health and education.” In that
regard, it recommended that the government “[a]dopt a policy or plan to guide business
enterprises regarding their human rights responsibilities to ensure that the private sector
exercises due diligence and assesses the impact of business activities on human rights, and
that remedies are in place for any human rights impact generated by such activities.” 147
144
Cf. Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus v. Brazil, supra, para. 185; and
Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-discrimination and Economic,
Social and Cultural Rights (Article 2, para. 2 of the International Covenant on Economic, Social and Cultural Rights),
a Doc. E/C.12/GC/20, July 2, 2009, paras. 15 and 27.
145
Cf. Case of Guachalá Chimbo et al. v. Ecuador, supra, para. 79.
146
Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, reparations and costs. Judgment
of March 29, 2006. Series C No. 146, para. 154, and Advisory Opinion OC-27/21, supra, para. 162.
147
Cf. United Nations High Commissioner for Human Rights. Report on the situation of human rights in Honduras,
January 28, 2019, paras. 65, 66, and 94.
36
106. Similarly, a World Bank study conducted in 2001 noted the lack of infrastructure and
governmental negligence with respect to the region of La Mosquitia. It identified the urgent
need to achieve rural development and relieve poverty by strengthening the local economy,
creating new sources of employment, and reducing the population’s dependence on lobster
and turtle fisheries. The Bank considered that the development of alternative sources of
employment would contribute to a reduction in diving accidents, since the Miskitos would not
be forced to dive continuously to obtain income for their subsistence. 148
107. In this regard, the Court notes that the victims were immersed in patterns of structural
and intersectional discrimination, given that they belonged to an indigenous community and
lived in poverty. One victim was a child; the other victims acquired disabilities and did not
receive medical treatment, and had no other economic alternative but to accept a dangerous
job that put their health, their personal integrity and their lives at risk. The confluence of
these factors enabled the hazardous activity of underwater fishing, which involves enormous
risks (supra para. 31 to 38), to be carried out in the Mosquitia region without effective
implementation of the regulations, and forced the victims to work in unhealthy conditions,
without the protection of social security. It is also important to emphasize that the fact that
the victims belonged to a particularly vulnerable group accentuated the State’s duty to respect
and guarantee their rights. However, the State did not adopt measures to ensure that the
victims could exercise their rights without discrimination, and the intersection of comparative
disadvantages aggravated their experience of victimization.
108. At the same time, the Court recalls that an obligation to ensure material equality is
derived from Article 24 of the Convention, which did not happen in the instant case. The right
to equality guaranteed under Article 24 of the Convention has two dimensions. The first is a
formal dimension that establishes equality before the law; the second is a material or
substantive dimension that requires the adoption and promotion of positive measures in favor
of groups that have historically suffered discrimination or marginalization due to the factors
mentioned in Article 1(1) of the American Convention. This means that the right to equality
entails the obligation to adopt measures to ensure that this equality is real and effective; in
other words, to correct existing inequalities, promote the inclusion and participation of
historically marginalized groups, and to guarantee to disadvantaged individuals or groups the
effective enjoyment of their rights. In short, to provide individuals with the real possibility of
achieving material equality. To this end, States must actively combat situations of exclusion
and marginalization. 149
109. In this specific case, the Court finds that the State did not adopt any measure that
could be assessed by the Court as an effective way of addressing or seeking to reverse the
situation of structural poverty and marginalization of the victims, taking into account the
factors of discrimination that converged in this case. Furthermore, the State was aware of the
victims’ special situation of vulnerability since, as the State itself acknowledged, in August
2002 the Ministry of Labor, Interior and Justice met with the organization Handicap
International and AMHBLI to agree on commitments regarding a solution “to the problem of
the disabled divers in La Mosquitia.” 150 Also, according to reports from the World Bank and
the United Nations Development Program, in 2003, the department of Gracias a Dios had high
148
World Bank. The Lobster Fishery of the Honduran and Nicaraguan Moskitia. A study of the resource, its
sustainable exploitation and the problems of the Miskito divers working in the fishery. September 1999.
149
Cf. Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus v. Brazil, supra, para. 199, and
Advisory Opinion OC-27/21, supra, para. 157.
150
Cf. Minutes of meeting 13-08-02 (evidence file, folio 3735).
37
rates of poverty, illiteracy, unemployment and chronic malnutrition, among other aspects. 151
Thus, by allowing private companies to operate without adequate control and supervision in
an area where a substantial part of the population is vulnerable, the State failed in its
obligation to ensure that effective measures were implemented to protect the life and health
of divers and to guarantee their right to material equality.
110. In short, the Court finds that the ethnic origin of the victims in this case and the
aforementioned intersectional factors of discrimination aggravated the victims’ vulnerability,
which: a) facilitated underwater fishing operations without State oversight of the dangerous
activity, of the occupational hygiene and safety conditions or of social security; b) led the
victims to accept a job that put their lives and personal integrity at risk; c) did not provide
them with access to health services for immediate medical care or for rehabilitation treatment.
Furthermore, the State did not adopt measures to guarantee material equality in the right to
work with respect to a group of people in a situation of exclusion and discrimination.
Consequently, the State did not ensure the rights analyzed in this case without discrimination,
or the right to equality provided for in Article 24 of the Convention.
D. Other arguments
111. In accordance with the friendly settlement agreement reached by the parties, as well
as the observations submitted by the representatives (supra para. 8) which expressly refer
to the facts and violations alleged by the Commission in the Merits Report, this Court will not
rule on the facts related to the remaining alleged violations- such as the right to a decent life,
judicial guarantees and judicial protection contained in Articles 4(1), 8(1) and 25(1) of the
Convention, and the right to personal integrity of the victims’ next of kin, contained in Article
5(1) of the Convention – in consideration of the content of the parties’ request for the
purposes of the friendly settlement of this case.
VII.
ENDORSEMENT OF THE FRIENDLY SETTLEMENT AGREEMENT
112. As mentioned previously, the terms of the friendly settlement agreement include an
acknowledgment by the State of the human rights violations specified by the Inter-American
Commission in its Merits Report (supra para. 13). In view of this, the Court considers that the
dispute over the facts has ceased. This Court also understands that the dispute has ceased
over the arguments related to the violations of the rights to life, to life with dignity, to personal
integrity, to the rights of the child, to judicial guarantees, judicial protection, to the right to
work in just, equitable and satisfactory conditions, to health, social security, and to the
principle of equality and non-discrimination, established in Articles 4(1), 5(1), 8(1), 19, 24,
25(1) and 26 of the American Convention, in relation to the obligations established in Articles
1(1) and 2 of the same instrument, to the detriment of the 42 Miskito divers listed as victims
in Annex 1 of this judgment; and on Articles 5(1) (right to personal integrity), of the victims’
next of kin.
113. The Court considers that the State’s acknowledgment of responsibility is a positive
contribution to the advancement of these proceedings and to the exercise of the principles
underlying the American Convention. The Inter-American Commission has also assessed the
agreement reached by the parties, and has considered that the endorsement requested is
appropriate (supra para. 17). In this regard, the Court considers that the friendly settlement
agreement meets the formal and substantive requirements mentioned above, given that it
151
Cf. World Bank. The Lobster Fishery of the Honduran and Nicaraguan Moskitia. A study of the resource, its
sustainable exploitation and the problems of the Miskito divers working in the fishery. September of 1999.
38
has been signed by the parties to the dispute, who have had an opportunity to present their
observations, that it puts an end to the dispute on the facts, rights and reparations, and that
its content is compatible with the object and purpose of the Convention. Consequently, by
means of this judgment the Court endorses the agreement reached by the parties.
114. The agreed measures of reparation are included in the endorsement of the friendly
settlement agreement. Nevertheless, the Court will analyze them in order to determine their
scope and means of execution, in light of the criteria established in its case law and in relation
to the nature, object and purpose of the obligation to make full reparation for the harm caused
to the victims. 152 Therefore, the agreed measures of reparation must be implemented in
accordance with the terms of this judgment, as follows.
VIII.
REPARATIONS
(Application of Article 63(1) of the American Convention)
115. In the friendly settlement agreement, the State and the representatives agreed to
provide comprehensive reparation for the victims through a series of measures for which they
requested the Court’s endorsement and its supervision of compliance. The various measures
of reparation established by the parties in the friendly settlement agreement are described
below. 153 The Court notes that some of the agreed measures have already begun to be
implemented, which does not prevent the State from ensuring that these comply fully with
the terms established in the agreement.
A. Measures of restitution and satisfaction
A.1. Comprehensive and specialized medical and psychological care for

victims and their families, including rehabilitation treatment
116. In the friendly settlement agreement, the State agreed to the following:
The State undertakes to provide all victims with comprehensive and specialized medical
and psychological treatment of high quality, free of charge, so that they can enjoy the
highest possible level of health in the national public health system.
The State recognizes its obligation to provide medical treatment free of charge including,
as a minimum, medical consultations, as well as the provision of the required medicines,
prostheses or other devices necessary for the victims to lead a decent life. This also includes
access to other specialized medical instruments or equipment that the victims may need.
Treatment shall begin immediately and shall be provided for as long as necessary to restore
the health and integrity of the victims. It shall also include the adoption of relevant
measures to achieve the full integration into society of all victims living with disabilities,
including the necessary rehabilitation treatment to ensure their inclusive social
development.
The required treatments shall be implemented with the prior informed consent of each
patient, based on an individualized and specialized medical assessment and taking into
account their particularities.
152
Cf. Case of Velásquez Rodríguez. Reparations and costs. Judgment of July 21, 1989. Series C No. 7, paras.
25 to 27; Case of Escaleras Mejía et al. v. Honduras, supra, para. 82.
153
As agreed by the parties, the Court will not mention the monetary sums that the State agreed to pay the
victims and their families as reparation, nor those that correspond to the Miskito organizations for costs and expenses.
39
Treatments shall be provided, insofar as possible, at the public health centers closest to the
victims’ places of residence. Once the necessary requirements have been identified and
budgeted, the Secretariat of Health shall incorporate them into its Annual Operating Plans
(POA), in order to recruit the necessary personnel and provide the required medical
equipment and supplies to the hospitals closest to the victims’ homes, after identifying the
centers described in conjunction with the Miskito organizations that sign this [Agreement].
In the event that the State is unable to provide the required medical treatment through its
public institutions in the Mosquitia region, it shall ensure that these are provided in other
public medical centers of the country.
The State shall provide the means to facilitate support to the divers to cover the costs of
transportation, food and, when appropriate, lodging, incurred by the victims in order to
attend their medical appointments.
In addition, the State shall ensure that the treatment provided is culturally relevant,
understanding this to mean the adaptation of criteria and information to the particularities
of the customs, traditions, way of life and linguistic identity of the Miskito people and
integrating traditional practices of Miskito medicine.
A.2. Educational scholarships for the victims, their children and/or their
grandchildren
The State shall award specific and differentiated educational scholarships for the children
and/or grandchildren of the disabled or deceased divers who have been recognized as
victims in the instant case. These scholarships, which shall cover all expenses derived from
the studies, shall be granted for the duration of the study period until its completion, or
until the beneficiaries are satisfied. As for the academic performance of the beneficiaries,
follow-up actions will be carried out in order to take joint decisions regarding their
continuity. In the event that the parties do not reach a consensus on the continuity of the
scholarships, the Court will be asked to express an opinion on the matter.
The scholarships shall be awarded and administered through mechanisms that contemplate
the genuine participation of the beneficiaries and their representatives, and facilitate
agreements with the relevant public education institutions. The mechanism to be created
to implement this measure shall be agreed with the representative organizations and shall
be in operation one year after the signing of this agreement, so that the State may
coordinate and provide for the scholarships in the respective AOPs and be able to effectively
execute them, including the corresponding disbursement of the resources assigned for such
purpose.
The State of Honduras also undertakes to continue with the educational scholarship
programs in the area; the mechanism for their execution and disbursement would be the
same as that agreed upon in this section.
A.3. Program of productive projects
The State, through the competent institutions in coordination with the Alliance for the
Development of the Honduran Mosquitia (ADMH), will establish a program of specific
production projects so that the victims and their families can develop productive activities
to enable them to subsist with in a dignified manner. In all phases of the design and
implementation of the programs, the victims shall be consulted and included through their
representative organizations, so that they may decide on the projects they want and be
40
part of the planning process. Permanent training will be included for the necessary
productive and managerial tasks.
The ownership and management of these projects shall be in the hands of the victims
themselves; nevertheless, the State, with the prior agreement of the parties, may
designate authorities to assist with technical aspects of such management and oversight
actions.
The programs that are socialized and approved in writing, both in the Miskito language
and in Spanish, must be fully operational one year after the signing of this agreement.
State financing will be extended as long as necessary to ensure the true sustainability of
the productive projects promoted, which will be evaluated in consultation with the victims
through their representative organizations. In order to contribute to the success of the
projects, the State will ensure that those who participate in them benefit from the best
incentives, tax exemptions and other means of support provided for in the Constitution of
the Republic of Honduras and in accordance with domestic legislation.
A.4. Housing for the divers and their families
The State announces that, as part of the program to provide housing for the target
population in this case, it has allocated 39 homes to date; therefore it undertakes to
provide, free of charge, within a maximum period of one year from the signing of this
agreement, the three houses that are still pending to the 42 Miskito divers accredited as
direct victims, or to their families. Said houses will be delivered prior to the petitioners or
their representatives accrediting the corresponding documents, following the legal
procedures in force, either for them to be declared as missing or deceased and
consequently as heirs.
The State also undertakes to carry out essential remodeling work required in the homes
of those victims to whom it has already allocated housing within a maximum period of
one year from the signing of this agreement. These homes will be adapted to ensure the
greatest possible accessibility for persons living with disabilities, through the construction
of access ramps to the homes that require them and any other adaptation that may be
needed in accordance with the principles of universal design.
Likewise, the State undertakes to ensure that the houses have, at a minimum, sanitary,
washing and waste disposal facilities, access to drinking water, electricity and adequate
drainage in places where such services are available. In addition, the expression of the
cultural identity of the Miskito people must be taken into account in the construction or
remodeling of the homes.
Finally, the State undertakes to grant full ownership titles to the properties located within
the ejido (communal lands) of the department of Gracias a Dios and, with the coordination
of the Alliance for the Development of the Honduran Mosquitia, to support the necessary
procedures before the municipal corporations of the department of Gracias a Dios, and
the Territorial Councils of the Miskito People.
A.5. Production and broadcasting of a television documentary
The State recognizes the importance for Honduran society to be made aware of the
struggle of the Miskito divers and their families to obtain access to decent employment
conditions and adequate health care, in order to strengthen the information of the
population and promote the enforceability of their rights. In this regard, it undertakes
to produce a documentary that dignifies the struggle of the divers and recognizes its
41
legitimacy. The documentary should contribute to reduce the stigma affecting the divers
who are living with disabilities by providing information about their situation as well as
the State’s international obligations of oversight and comprehensive care for this
vulnerable group. The documentary will refer to the processing of this case before the
Inter-American Human Rights System, in accordance with facts stated as proven by the
IACHR and in the terms of the following paragraph.
The script and content of the documentary must be agreed upon with the representative
organizations prior to its production. The documentary shall have a duration of 20
minutes and be available in Miskito and Spanish. It shall not be made public without the
prior consent of the direct victims in the case, or of their next of kin and their
representatives, who must approve its content. This consent must be provided in writing
through CEJIL in both languages, and be broadcast by the State television channel,
Televisión Nacional de Honduras, and by Radio Nacional de Honduras so that it may be
disseminated nationally and locally. The corresponding actions shall be initiated within
six months of signing this agreement and the final product shall be completed one year
after its signing.
The documentary shall be broadcast at least twice a week for a period of three months
on radio and television. The dates and times of the broadcasts shall be agreed with the
victims and their representatives with due notice. However, the documentary must be
produced for public use and, in that regard, a copy shall be given to each family group,
making a total of 42 copies, as well as to each of the organizations representing the
victims, for their free use and dissemination.
A.6. Public act of acknowledgment of international responsibility, apology and

commitment to non-repetition
With the prior agreement of the victims and their representatives, the State undertakes
to ensure that, once this agreement has been endorsed by the Inter-American Court, a
public act shall be held with the participation of the highest authorities or senior
institutional representatives of the Executive Branch, the Supreme Court of Justice, the
National Congress, the Office of the Prosecutor General of the Republic, the Office of the
Attorney General of the Republic, Ministry of Health, Ministry of Labor and Social
Security, Ministry of Human Rights, and Ministry of Agriculture and Livestock, in a public
act of acknowledgment of international responsibility and apology to the victims of the
instant case and their next of kin, in the terms of the Merits Report.
In this public ceremony, the State must also express its commitment to protect and
ensure the rights of all the affected Miskito divers. This act shall be held in Puerto
Lempira, department of Gracias a Dios, no later than the end of 2021. The date of the
event shall be agreed with the victims and their representatives, in order to guarantee
the widest possible attendance. In addition, the specific details of the event and the
content of the message to be delivered during the act shall be agreed with the victims
and their representatives. Simultaneous translation into the Miskito language shall be
provided for the entire event.
Likewise, the State shall ensure that the ceremony takes place in a location accessible
to people with disabilities, and that it is broadcast on the State television channel,
Televisión Nacional de Honduras, as well as by a radio station with coverage in the
Mosquitia region. The State shall guarantee free transportation for the victims and their
families to attend the event and to return to their communities. Depending on the time
of the event, the State shall also ensure the provision of food and beverages for the
attendees. With regard to transportation arrangements and their coordination, this shall
be agreed between the representatives and the State, taking into account the conditions
of the area and the availability of transport.
42
A.7. Publication and dissemination of the judgment of the Inter-American
Court
The State undertakes to publish the official summary of the judgment in the Official
Gazette and in at least two newspapers with national circulation, in Spanish and Miskito.
The State also undertakes to publish the full judgment on the web sites of the main
State institutions concerned with the problem of dive fishing, including: the Ministry of
Human Rights, the Ministry of Agriculture and Livestock (SAG), the Merchant Navy, the
Ministry of Labor and Social Security (STSS), Ministry of Health (SESAL) and the Ministry
of Development and Social Inclusion (SEDIS); and shall maintain the publication in these
web sites for a period of two years.
123. In this regard, the Court orders the State to issue said publications, under the agreed
terms, within six months of notification of this judgment, in a legible and adequate font size,
including: a) the official summary of this judgment prepared by the Court, once, in the Official
Gazette; and b) the official summary of this judgment prepared by the Court, once, in two
daily newspapers with wide national circulation. The publications shall be issued in the Spanish
and Miskito languages. The State shall immediately inform this Court once it proceeds to carry
out each of the publications ordered, regardless of the one-year term granted to submit its
first report, as set forth in the seventh operative paragraph of this judgment.
B. Pecuniary measures
124. In the friendly settlement agreement, the State indicated the following:
The State of Honduras recognizes the human rights violations suffered by the victims in
this case in the terms set forth in the Merits Report of the IACHR, which caused them
physical, psychological and moral harm, to the point that many of them became
temporarily or permanently disabled. It further recognizes that the next of kin of the
direct victims in this case also suffered consequences that disrupted their life projects.
By virtue of this, it recognizes their right to receive financial compensation as reparation
for all the damages caused.
B.1. Non-pecuniary damage
125. In view of the foregoing, in the friendly settlement agreement, the State agreed
to the following:
With regard to non-pecuniary or moral damage, the State of Honduras recognizes and
accepts as the amount to be paid as compensation to each of the forty-two direct victims
declared in the IACHR’s Merits Report the sum of [amount agreed by the parties and
established in the Agreement].
In addition, the State recognizes and accepts as the amount to be paid as compensation
to each of the families declared as victims in the IACHR’s Merits Report on this case, the
sum of [amount of money agreed by the parties and established in the Agreement].
The parties state that the amount agreed upon has been established taking into account
the inter-American jurisprudence in cases involving violations similar to those that
occurred in the instant case.
B.2. Pecuniary damage
43
126. In the friendly settlement agreement, the State acknowledged the following:
With regard to pecuniary damage, the State recognizes that, when the acts that
violated the rights of the victims in this case occurred, all of them were men of full
working age. As a result of the harm suffered, they were not only deprived of their
main source of income, but were also unable to continue carrying out any form of work
in a normal manner. Therefore, the State recognizes that the income that the victims
and their families lost as a result of the violations, as well as the medical and other
expenses incurred as a consequence thereof, are elements that must be taken into
consideration for the calculation of the amount that would correspond to each of them.
127. Accordingly, in the friendly settlement agreement, the State agreed to the
following:
Thus, the State recognizes and accepts the need to compensate each of the forty-two
direct victims in this case with the sum of [the amount of money agreed by the parties
and established in the Agreement], and each of the two hundred and thirty-three family
members indicated in the Merits Report with the sum of [the amount of money agreed
by the parties and established in the Agreement].
The parties agree that the amounts corresponding to the deceased victims shall be
distributed equally among the family members listed in the annex to the Merits Report
of the IACHR.
With respect to those victims identified in the IACHR Merits Report who have not yet
been contacted, 154 the State, with the support of the representative organizations,
undertakes to take steps to locate them and/or their next of kin, and to provide them
with the corresponding amount as financial compensation in accordance with the above
considerations. In this regard, when attempting to locate said persons, the State will
not mention that it is for the purpose of granting them due compensation, nor will it
refer to the amount thereof.
If, after a period of 5 years, it has not been possible to locate these persons and they
have not appeared before the Attorney General of the Republic, the State shall transfer
said funds in equal parts to the Miskito associations that are signatories to this
agreement, to be used for the development of the Miskito people. Said funds must be
liquidated within a period one year.
128. Annex 3 of this judgment specifies the amounts corresponding to each of the victims
in this case, based on the foregoing considerations and as established in the agreement. The
Court confirms that the total amount to be paid by the State to the victims and their next of
kin is [the amount of money agreed by the parties and established in the agreement]. In this
regard, the agreement established the following:
The State and the representatives undertake to maintain strict confidentiality with
respect to the amounts specified above corresponding to each victim and his next of
kin. The aforementioned amounts shall be paid through the State Secretariat at the
Office of Finance (SEFIN), in two disbursements: 35% in the fiscal year 2021 and 65%
in 2022, respectively. All payments shall be made in accordance with the General
Budget of the Republic of Honduras for the fiscal year 2021 and 2022 and must be
fully paid before the end of 2022, for which purpose the PGR shall make the necessary
arrangements so that such payments are preferably made during the first semester of
each fiscal year.
154
These victims are: Alfredo Francisco Brown; Efraín Rosales Kirington; Félix Osorio Presby; David Esteban
Bradley; Ramón Allen Felman; Ali Herrera Ayanco; Timoteo Salazar Zelaya and Mármol Williams García.
44
The amounts allocated in this agreement as compensation shall be paid in full to the
persons indicated, in accordance with the provisions of this agreement, without
deductions. In the event that the State should default or fail to make the agreed
payments, the parties shall request the Court to rule thereon.
129. With respect to the foregoing, and considering the circumstances of this case, the
Court deems it particularly important to ensure the timely payment of compensatory damages
to mitigate the pecuniary consequences and the profound suffering that the violations caused
the victims in various aspects of their lives, particularly to their integrity, family life and work.
The Court also considers it appropriate to endorse the provisions of the agreement regarding
the obligation of the parties to “keep the amounts specified strictly confidential” and has
therefore omitted to transcribe these in the publication of this judgment.
B.3. Payment of costs and expenses
130. In the friendly settlement agreement, the parties requested that the Court determine,
in equity, the amounts for costs and expenses to be paid by the State to AMHBLI, in full and
without deductions. CEJIL waived the amounts that would correspond to it in order to
“contribute to the present process.”
131. In this regard, the Court recalls that costs and expenses form part the concept of
reparation, because the efforts made by the victims to obtain justice, both at the national and
international levels, entail disbursements that must be compensated when the international
responsibility of the State is declared in a condemnatory judgment. With regard to the
reimbursement of costs and expenses, it is for the Court to prudently assess their scope,
which includes the expenses incurred before the authorities of the domestic courts and those
generated during the proceedings before the inter-American system, taking into account the
circumstances of the specific case and the nature of the international jurisdiction for the
protection of human rights. This assessment may be based on the principle of equity, taking
into account the expenses indicated by the parties, provided that their quantum is
reasonable. 155
132. In view of the agreement reached between the State and the representatives, the
Court deems it reasonable to set a total sum of [the amount of money agreed by the parties
and established in the agreement] as payment for costs and expenses. Said amount shall be
delivered, within six months from notification of this judgment, to the Association of Disabled
Honduran Miskito Divers (AMHBLI). In the process of monitoring compliance with this
judgment, the Court may order the State to reimburse the victims or their representatives
for any reasonable expenses, duly proven, incurred during that procedural stage. 156
C. Guarantees of non-repetition
C.1. Inclusion of Miskito divers and their families in existing social programs
155
Cf. Case of Garrido and Baigorria v. Argentina. Reparations and costs. Judgment of August 27, 1998. Series
C No. 39, para. 82, and Case of Vicky Hernández et al. v. Honduras. Merits, reparations and costs. Judgment of
March 26, 2021. Series C No. 422, para. 195.
156
Cf. Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia. Merits, reparations and costs. Judgment of September
1, 2010. Series C No. 217, para. 29, and Case Grijalva Bueno v. Ecuador. Preliminary objection, merits, reparations
and costs. Judgment of June 3, 2021. Series C No. 426, para. 195.
45
The State recognizes the difficulties faced by Miskito divers who, as a consequence of
diving accidents, suffered effects that caused them total or partial, temporary or
permanent disabilities, thereby limiting their ability to obtain a source of income that
would allow them to live with dignity and with access to the basic services they require.
Therefore, within six (6) months of signing this agreement, the State undertakes to
include the 42 Miskito divers who suffered an accident as a result of dive fishing or, if
they have died, a family member, in accordance with the provisions of domestic law,
in programs aimed at persons living in a situation of social exclusion or vulnerability,
particularly the “Bono Viva Mejor” (social benefits voucher) established in Article 13 of
Agreement 063-SEDIS-2018, or any other voucher scheme with similar purposes
created by the State for persons with disabilities, as well as other relevant
governmental social protection system or social program, considering the specificities
of the target population in this case.
In this regard, the State undertakes to agree with the representative organizations on
any adjustments to be made to the various programs, to ensure that they are relevant
and appropriate with respect to the Miskito divers who suffered the effects of
decompression sickness, such as the drafting of regulations for the distribution of the
vouchers.
Likewise, the State undertakes to recognize the obligation to include divers who
suffered the effects of decompression sickness in these programs through an
agreement between the competent institutions and the organizations representing
Miskito divers with disabilities, as well as to guarantee their adaptation, continuation
and the provision of the necessary resources for their proper operation.
All the beneficiaries of the voucher scheme must be duly identified by the institution
responsible for administering the social benefit vouchers, by AMHBLI and/or by
CONADEH.
C.2. Measures to ensure the adequate regulation, control and supervision of

the activities of industrial fishing companies in Miskito territory
C.2.1. Analysis of the legal, administrative and other barriers that generate problems related
to underwater dive fishing and adoption of measures based on this
The State undertakes to conduct a comprehensive analysis to identify the structural

causes of the problems of underwater fishing in the Mosquitia region, as well as of all
the legal and administrative barriers that prevent the activity from being carried out in
a dignified and safe manner, respecting the rights of divers and of the Miskito people,
taking into account that diving is the main means of subsistence available in the area.
This analysis will be carried out by the competent institutions within the framework of
the Alliance for the Development of the Honduran Mosquitia (ADMH), within a
maximum period of six months from the signing of this agreement, guaranteeing the
participation of the representative organizations, as well as two experts in the matter,
designated by the representatives.
The results of this assessment shall be made public so that the victims, their
representatives and other international and civil society organizations with expertise
in the matter may present their observations and recommendations within a maximum
period of three months after the results are known. The State undertakes to collect
and evaluate these recommendations related to the analysis.
46
The State recognizes its obligation to identify the structural causes of the problems of
underwater fishing in the Mosquitia, as well as to remove all legal and administrative
barriers that prevent the activity from being carried out in a safe and dignified manner.
Therefore, based on the results of the analysis and the recommendations made by
specialized civil society organizations and representatives, within one year it will
present a proposal for a comprehensive public policy aimed at implementing measures
to address the structural causes identified, and to eradicate the problems of dive fishing
definitively.
C.2.2. Preparation of a census on the situation of active divers and those who have suffered
accidents
Within one year from the signing of this agreement, and in coordination with the
National Directorate of Indigenous and Afro-Honduran Peoples (DINAFROH) attached
to the Secretariat of State in the Office of Development and Social Inclusion (SEDIS),
as chair of the Inter-institutional Commission for Dive Fishing (CIAPEB), the National
Institute of Statistics (INE) and with the support of the Alliance for the Development
of the Honduran Mosquitia, the State undertakes to continue the consolidation of the
census with detailed information on the situation of Miskito divers and dive fishing.
The census should provide the State with accurate information for monitoring
compliance with regulations, including labor regulations, and for the design of public
policies related to the fisheries sector.
The census will collect and systematize, as a minimum, data on the following: divers
living with disabilities and active divers; the families of deceased divers, their
employers and companies involved in the entire production and distribution chain that
use divers for fishing; the status of the authorizations granted to such companies, the
vessels used for this purpose and their conditions, the boarding points on the vessels
and the intermediaries involved in the hiring of divers.
The State undertakes to periodically update the information contained in the census,
within a period to be agreed upon by the parties after the review of the first census.
C.2.3. Permanent program for the supervision and oversight of fishing companies on land and
on the high seas
The State undertakes to implement a Permanent Program for the Supervision and
Oversight of Dive Fishing, coordinated through DINAFROH, as chair of the CIAPEB,
which will ensure the adequate and effective application of the regulations on
underwater fishing on land and on the high seas.
Within 18 months of signing this agreement, the State undertakes to train and appoint
public servants in the department of Gracias a Dios in those agencies that do not yet
have a representative. Such personnel shall be assigned to the following institutions:
DIGE-PESCA, General Directorate of the Merchant Navy (DGMM), Ministry of Social
Security (STSS), Ministry of Health (SESAL) and the Honduran Navy, specifically for
the supervision and oversight of dive fishing in accordance with current laws.
Likewise, the State undertakes to continue with inspections on land and at sea, in order
to ensure compliance with labor and occupational health, sanitation and legal
requirements, as well as mandatory permits for vessels, in accordance with the
protocol for inspection and supervision activities, which must comply with international
47
standards on this issue, with full respect for human rights, and specifically the rights
of the Miskito people.
Inspections on land and at sea will be aimed at ensuring compliance with the full range
of labor obligations, with special consideration for the safety and health of workers
engaged in particularly hazardous activities. Inspections shall include, at a minimum,
aspects related to the prevention of accidents and illnesses, supervision of working
hours and remuneration of overtime, vacations and rest periods, measures to avoid
forced labor and other forms of contemporary slavery, anti-discrimination measures,
and measures to prevent work accidents, as well as to provide appropriate
compensation in case they occur.
C.2.4. Safe Fishing Certification Program
Within two years from the signing of this agreement, the State, through its competent
institutions, will establish a Safe Fishing Certification Program, incorporating the fair
trade standards issued by the Latin American and Caribbean Network of Fair Trade
Small Producers and Workers (CLAC) and the Fairtrade International System, which
will be developed with the support of the Alliance for the Development of the Honduran
Mosquitia (ADMH).
The Program, operated by the State, will verify the conditions of fishing and
industrialization of marine products extracted through the practice of diving, and when
it is demonstrated that such exploitation was carried out in compliance with current
regulations and without risk to divers, it will issue a Safe Fishing Certification to the
vessel. The accreditation will be issued by DIGE-PESCA which, prior to granting said
certification, will confirm that it meets the current legal requirements, which shall be
accredited by the following institutions in order: Ministry of Health, Honduran Institute
of Vocational Training (INFOP), General Directorate of the Merchant Navy (DGMM),
Ministry of Labor and Social Security (STSS) and the DIGE-PESCA. The requirements
to be met will include: physical and mental health of the divers, divers’ assistants
(oarsmen in dug-out canoes) and personnel in general; safe diving course, maritime
safety and work skills. Their purpose is to ensure the right to integrity and the right to
life of all personnel engaged in dive fishing and to prevent future accidents at work.
Regarding the employers, the conditions of their vessels will be certified and supervised
to guarantee respect for the rights of their employees.
The associations of Miskito divers may challenge any certification that they consider
has been granted in contravention of the applicable norms, and for this action they will
not be required to demonstrate special legal status. The operation of this program shall
be subject to the strictest standards of transparency.
138. On this matter, the Court notes that the “Permanent Program for the Control and
Supervision of Dive Fishing” and the “Safe Fishing Certification Program” are aimed at
verifying a) the application of the regulations on underwater fishing, b) the employers’
compliance with their labor obligations, and c) the fishing and industrialization processes of
the products extracted. In this regard, the Court requires that, in addition to implementing
those plans, the State must adapt the fishing regulations, establishing the obligation of fishing
companies to adopt human rights policies, due diligence processes and processes to remedy
human rights violations, in consideration of the standards previously indicated in this
judgment (supra paras. 42 to 52). The Court further stipulates that the State must establish
that it is the responsibility of the companies to certify their vessels and to finance the official
oversight mechanisms.
48
C.3. Strengthening the health system in La Mosquitia from the perspective of
inclusive social development
In view of the fact that many of the violations of the victims’ human rights occurred as
a result of the lack of specialized comprehensive medical care, and that the obstacles
to obtaining this care are a reflection of structural factors that affect all Miskito divers
who suffer from decompression sickness as a result of diving accidents, the State
undertakes to adopt the following measures […]
C.3.1. Establish a national strategy for strengthening health care in the region
140. Accordingly, the State agreed to the following:
Within one year of signing this agreement, the State shall implement a strategy to
strengthen the public health system in La Mosquitia, including both the Puerto Lempira
Hospital and the rural health centers located in the different communities of the region,
in order to ensure that they have the necessary infrastructure for their proper
functioning and, in particular, the necessary electricity and water supply.
Likewise, the State undertakes to provide these health centers with specialized, trained
and sufficient medical personnel to provide adequate and culturally relevant health
care to members of the communities in which they are located.
Within the same period, the State undertakes to design and implement a permanent
comprehensive medical care program for persons who, as a result of diving accidents,
remain bedridden and cannot travel to health centers. Said program shall have the
necessary personnel and budget for its operation, and shall guarantee that the required
health care is provided in their place of residence.
C.3.2. Strengthening hyperbaric medical services in La Mosquitia
The State recognizes that it would be ideal to have a hyperbaric medicine “corridor” in
La Mosquitia. However, given the economic conditions, it not possible to implement
such a corridor.
Therefore, the Ministry of Health undertakes to carry out a study on the most frequent
diseases in the area derived from diving accidents, in order to give these priority,
equipping the Puerto Lempira Hospital and the region’s rural health centers with the
necessary medical supplies to provide appropriate care.
Likewise, the State undertakes to strengthen the operation of the Puerto Lempira
hyperbaric chamber and the treatment offered there. To this end, the State will ensure
that divers who suffer a decompression accident receive all the necessary hyperbaric
treatment sessions free of charge in the chamber. The State shall also ensure the
constant and permanent maintenance of the chamber. To this end, it shall guarantee
the necessary budget allocation for the operation of the chamber, together with the
required electrical supply, the necessary equipment and duly trained personnel to
provide this medical service to the Miskito divers who require it.
This includes the provision of trained medical personnel and/or the establishment of a
training program for the medical personnel who will be operating the hyperbaric
chamber, to ensure that they have the appropriate training for this purpose.
C.3.3. Protocol for the prevention and care of diving accident victims
49
The State notes that on December 20, 2016, it approved the Protocol for the Prevention
and Care of Persons with Decompression Sickness.
Thus, in compliance with the aforementioned recommendation, within six months from
the signing of this agreement, the State undertakes to receive and consider the opinion
of experts in the field, including specialized international organizations and agencies,
in order to adapt said Protocol. If necessary, based on the recommendations received,
it shall make the pertinent modifications to the Protocol to ensure that the highest
standards of current medical science are taken into account.
Once the corresponding modifications have been made, it undertakes to disseminate

the Protocol widely among the medical community, fishing companies and other actors
involved in its application, with a view to ensuring its effective implementation.
143. In this regard, the Court emphasizes that, given that in this case there were different
factors of discrimination that increased the devastating effect on the human dignity of the
victims (supra para. 107), particularly those who suffered diving accidents and acquired
disabilities, it is necessary that the State, when developing policies aimed at strengthening
health care, take into account the social model of disability. This model refers to the fact that
the causes of disability are social and not individual, and respond to the limitations of society
to provide adequate services for the inclusion of persons with disabilities. The Court recalls
that the social model for addressing disability is not defined exclusively by the presence of a
physical, mental, intellectual or sensory impairment, but is interrelated with the barriers and
limitations that exist socially, and that prevent persons from exercising their rights
effectively. 157
C.4. Awareness and sensitization campaign
Within six months of signing this agreement, the State shall design and implement, in
conjunction with the victims and their representatives, an information campaign with
the aim of sensitizing and raising awareness in Honduran society about the situation
of the Miskito divers and their rights that have been historically violated. The campaign
will highlight the importance of protecting the rights of indigenous people and persons
with disabilities, and will discuss the specific obligations of the State in this regard.
The campaign will have nationwide coverage, but special emphasis will be placed on
the Mosquitia region and surrounding areas. It will be conducted both in Spanish and
Miskito, and will utilize the most effective means, through broadcasts on Televisión
Nacional de Honduras and Radio Nacional de Honduras. It will be based on the
Convention on the Rights of Persons with Disabilities, the Convention on Indigenous
and Tribal Peoples (Convention 169 of the International Labor Organization) and the
United Nations Declaration on the Rights of Indigenous Peoples. It will also include, at
least, the dissemination of these international instruments as well as the Law on Equity
and Integral Development for Persons with Disabilities, in the official version and in
the popular versions, both in Miskito and Spanish, on an official web page of the
Honduran State.
157
Cf. Case of Guachalá Chimbo et al. v. Ecuador. Merits, reparations and costs. Judgment of March 26, 2021.
Series C No. 423, para. 85.
50
C.5. Exhaustive investigation of the facts, identification, prosecution and
punishment of all those responsible
The State undertakes to initiate and diligently pursue all actions necessary to identify
all persons responsible for the accidents resulting from underwater fishing activities in
which the victims were affected and to punish them appropriately, in criminal, civil,
labor or administrative proceedings, as appropriate, imposing sanctions proportional
to the seriousness of the facts.
To this end, the State shall carry out the appropriate investigations through the
competent institutions to determine the corresponding responsibilities in accordance
with applicable legal rules. To that end, specialized personnel in the subject matter
must be incorporated and given the necessary support and resources.
When appropriate, both the Public Prosecutor's Office and the Office of the Secretary
of State for Labor and Social Security (STSS) shall maintain constant contact and
coordination with the victims and their representatives.
C.6. Undertake an exhaustive search for the victims who are still missing
In the instant case the whereabouts of seven victims are still unknown, 158 one of whom
was a child abandoned at sea. 159 Likewise, there was no investigation to locate these
persons in a timely manner. This omission seriously hinders the current possibilities of
identifying the whereabouts of the victims and/or their mortal remains. Nevertheless,
the State recognizes that the families of the disappeared victims have a reasonable
expectation that their whereabouts be established, or that their remains be found so
that they can be identified with certainty. This would contribute to alleviate the anguish
and suffering caused by the uncertainty in which the families remain.
147. In that regard, the State agreed to the following:
[W]ithin six months of signing this agreement, the State of Honduras, with the advice
of FAO-Honduras or of another international organization with knowledge of accidents
at sea, undertakes to initiate a systematic, rigorous and diligent search for the
whereabouts of the victims who are still missing. To this end, it will use all the technical
and scientific means at its disposal, and will provide this process with the required
economic and human resources. In order to carry out the aforementioned proceedings,
the State shall remain in constant communication with the next of kin of the missing
victims, with whom it shall agree, together with the representatives, on a framework
for coordinated action that guarantees their participation, information and
representation during the process.
Once the framework of action has been agreed upon, it will be signed by the
representatives and the State, with the advice of FAO-Honduras or of another
international organization, so that once the deadlines and lines of action have been
executed, regardless of the results, the present point will be considered fulfilled.
C.7. Adoption of structural measures to ensure access to justice
158
Andrés Miranda Clemente, Lorenzo Leman Bonaparte, Bernardo Julián Trino, José Trino Pérez Nacril, Rómulo
Flores Henriquez, Hamilton Bonaparte Clemente and Licar Méndez.
159
Licar Méndez was 16 years of age when the events took place.
51
The State undertakes to carry out all relevant actions to ensure access to justice in the
Mosquitia region. To this end, at a minimum, it will establish and maintain permanent
and free legal counseling and representation programs through the Ministry of Labor
and Social Security; it will ensure that in the processes in which Miskito persons are
parties, there will be competent interpreters who not only speak the Spanish and
Miskito languages, but who are also familiar with the legal procedures and the culture
of the Miskito people; and it will maintain brigades and itinerant campaigns to bring
the institutions of justice to all the Miskito communities. Within six months after signing
this agreement, the State shall present a study on how to achieve the implementation
of this measure and the timetable for its effective fulfilment.
All the measures under this point of the agreement shall be implemented in accordance
with Convention No. 169 of the International Labour Organization and the Convention
on the Rights of Persons with Disabilities, especially Article 13, as well as the current
standards derived from the application and interpretation of these instruments by the
competent bodies.
149. Therefore, the Court considers that the State, in compliance with its commitment to
guarantee access to justice in the Mosquitia region, must adopt measures so that its justice
administration system meets the following criteria: 1) ensures the inalienable right of workers
to have recourse to the competent judicial authorities to submit labor disputes of all kinds,
except in cases where other means of conflict resolution are legally provided for; 2) a
specialized jurisdiction with exclusive jurisdiction over labor matters, in accordance with the
number of labor cases and claims; 3) the application of a gender perspective in the resolution
of labor disputes; 4) the provision of a specialized procedure that takes into account the
specificities of labor issues; 5) the distribution of the burden of proof, the evidentiary analysis
and the grounds for judicial decisions in accordance with principles that compensate for the
inequalities inherent in the world of work, such as the principle of in dubio pro operario and
the principle of favorability; 6) free labor justice and 7) the guarantee of the right to a
specialized defense. 160 The State must also guarantee the presence of competent interpreters
and translators, who are familiar with the legal procedures and speak the Spanish and Miskito
languages, in the processes in which Miskito persons are parties.
C.8. Strengthening the education system in La Mosquitia
The State recognizes that the educational lag in La Mosquitia is one of the sources of
inequality and poverty in that region, which forces the population to work in activities
that violate their dignity and put their integrity and life at risk.
Consequently, the State is committed to providing free education in La Mosquitia, in

accordance with the provisions of the Constitution. It will also continue to reinforce the
region’s education system by strengthening the recently created the Mistruk National
University of Agriculture, and will provide electrical materials to support the
sustainability of a photovoltaic project at the university.
Through the Ministry of Education, and with the support of the Alliance for the
Development of the Honduran Mosquitia (ADMH), it undertakes to manage the
allocation of funds so as to increase the budget of the education system throughout
the department, and ensure that schools have adequate facilities with sufficient
qualified teaching staff who speak the Miskito language.
160
Cf. Advisory Opinion OC-27/21, supra, para. 116.
52
It shall also ensure that the study programs and teaching methods used are culturally
relevant, of good quality and adapted to the needs of the students in their cultural and
social contexts. In this regard, within twelve months after the signing of this
agreement, the State shall present a plan of action and a schedule of the steps to be
taken in compliance with this commitment.
C.9. Adoption of measures to ensure the accessibility of all public institutions in La

Mosquitia
The State undertakes to ensure that all facilities of public institutions located in the
Mosquitia region are accessible to persons with disabilities, as stated above. To this
end, it shall carry out all necessary modifications, including improvements to achieve
a universal design of the facilities, as well as reasonable adjustments to ensure access
to Miskito divers with disabilities, in accordance with the Convention on the Rights of
Persons with Disabilities and the lnter-American Convention on the Elimination of All
Forms of Discrimination Against Persons with Disabilities.
The modifications shall be carried out within three years after the signing of this
agreement. To this end, within six months of signing the agreement, the State shall
present an analysis of the necessary modifications and a detailed schedule for carrying
them out, together with the required budget allocation.
In addition, the State shall ensure that the new facilities of public institutions in La
Mosquitia, as well as any extensions, remodeling or modifications, shall be made under
a universal design, in the terms established in the Convention on the Rights of Persons
with Disabilities and the lnter-American Convention on the Elimination of All Forms of
Discrimination Against Persons with Disabilities, as well as the current standards
derived from the application of those instruments, as interpreted by the competent
organs.
D. Method of compliance with the payments ordered
152. The State shall pay compensation for pecuniary and non-pecuniary damage and to
reimburse costs and expenses, as established in this judgment, directly to the persons and
organizations indicated herein, within one year of notification of this judgment.
153. If the beneficiaries are deceased or die before they receive the respective
compensation, this shall be delivered directly to their heirs in accordance with the applicable
domestic law.
154. The State shall comply with its monetary obligations by payment in United States
dollars or the equivalent in national currency, using for the respective calculation the market
exchange rate published or calculated by the relevant banking or financial authority on the
date closest to the day of payment.
155. If, for reasons that can be attributed to the beneficiaries of the compensation or to
their heirs, it is not possible to pay the amounts established within the time frame indicated,
the State shall deposit these amounts in their favor in an account or certificate of deposit, in a
solvent Honduran financial institution, in United States dollars, and on the most favorable
financial terms permitted by banking law and practice. If the corresponding compensation is
not claimed after ten years, the amounts shall be returned to the State with the accrued
interest.
53
156. The amounts established as compensation for pecuniary and non-pecuniary damage
and to reimburse costs and expenses shall be delivered in full to the persons and organizations
indicated in this judgment, without any deductions arising from possible charges or taxes.
157. If the State should fall into arrears, it shall pay interest on the amount owed
corresponding to banking interest on arrears in the Republic of Honduras.
E. Monitoring compliance with the Agreement
158. This Court positively assesses the willingness shown by the State to repair the damage
caused by the human rights violations that occurred in the instant case. It notes that the
measures agreed upon are aimed at comprehensively redressing the harm caused since they
provide for pecuniary compensation, measures of restitution and satisfaction and guarantees
of non-repetition. Therefore, the Court endorses the measures of reparation in the terms
approved by the parties in the friendly settlement agreement.
159. As part of the process of monitoring compliance with this judgment, the Court will
oversee compliance with all the measures agreed upon by the parties, and will settle any
disputes that may arise between the State and the representatives regarding their scope and
content. Furthermore, in order to ensure full compliance with the agreed reparation measures,
it orders the State to designate a specific authority in charge of ensuring compliance at the
domestic level. Said authority shall inform and involve the victims in this case, and the
companies that carry out fishing activities in the Mosquitia region, as appropriate, with respect
to compliance with the agreed measures of reparation. The State shall designate the
aforementioned authority within 120 days from notification of this judgment, and shall notify
the Court of said designation.
160. With regard to monitoring the measures of restitution and satisfaction and the
guarantees of non-repetition agreed by the parties, this Court will assess the progress made
in their compliance over a period of five years, and will determine whether it is necessary to
maintain them.
161. The friendly settlement agreement signed between the representatives on behalf of
the victims and the State is hereby endorsed by this judgment, for which reason any dispute
or difference arising therefrom shall be resolved by this Court.
54
IX
OPERATIVE PARAGRAPHS
162. Therefore,
THE COURT
DECIDES,
Unanimously:
1. To endorse the friendly settlement agreement signed by the State of Honduras and
the representatives of the victims, in the terms of Chapter VIII of this judgment.
2. To accept the acknowledgment of international responsibility made by the State in said

agreement.
DECLARES,
Unanimously, that:
3. The State violated the rights to life, to life with dignity, to personal integrity, to judicial
guarantees, to the rights of the child, to equal protection of the law, to judicial protection, to
health, to work in just, equitable and satisfactory conditions, to social security, and to equality
and non-discrimination, established in Articles 4(1), 5(1), 8(1), 19, 24, 25(1) and 26, in
relation to Articles 1(1) and 2 of the same instrument, to the detriment of the 42 victims
named in Annex 1 of this judgment.
4. The State violated the right to personal integrity, recognized in Article 5(1) of the
American Convention on Human Rights, in relation to Article 1(1) of the same instrument, to
the detriment of the next of kin of the victims named in Annex 1 of this judgment.
AND ESTABLISHES
Unanimously, that:
5. This judgment of endorsement constitutes, per se, a form of reparation.
6. The State shall:
a) Provide comprehensive and specialized medical and psychological care to the victims
in this case and their next of kin, pursuant to paragraph 116 of this judgment;
b) Award educational scholarships for the victims, their children and/or their
grandchildren, in the terms of paragraph 117 of this judgment;
c) Establish a program of productive projects for the victims and their next of kin,
pursuant to paragraph 118 of this judgment;
d) Provide housing for the victims and their families, pursuant to paragraph 119 of this
judgment;
55
e) Produce and broadcast a television documentary on the Miskito divers, pursuant to
paragraph 120 of this judgment;
f) Carry out a public act of acknowledgment of international responsibility, apology and

commitment to non-repetition, pursuant to paragraph 121 of this judgment;
g) Publish and disseminate this judgment, pursuant to paragraphs 122 and 123 of this
judgment;
h) Pay the amounts established for pecuniary and non-pecuniary damage, pursuant to
paragraphs 124 to 128 of this judgment, and
i) Pay the amounts established for costs and expenses, pursuant to paragraph 132 of
this judgment.
j) Incorporate Miskito divers and their families into the social programs aimed at
persons living in situations of extreme social exclusion, pursuant to paragraph 133 of
this judgment;
k) Adopt measures to ensure adequate regulation, monitoring and supervision of the

activities of industrial fishing companies in Miskito territory, pursuant to paragraphs
134 to 138 of this judgment;
l) Implement measures to strengthen the health system in La Mosquitia from the

perspective of inclusive social development, pursuant to paragraphs 139 to 143 of this
judgment.
m) Design and implement a campaign to raise awareness and sensitize Honduran

society about the situation faced by the Miskito people, pursuant to paragraph 144 of
this judgment.
n) Conduct an exhaustive investigation of the facts, and identify, prosecute and punish
those responsible for the accidents suffered by the victims, pursuant to paragraph 145
of this judgment.
o) Undertake an exhaustive search to determine the whereabouts of the victims who

remain missing, pursuant to paragraph 147 of this judgment.
p) Adopt the necessary structural measures to guarantee access to justice in the

Mosquitia region, pursuant to paragraphs 148 and 149 of this judgment.
q) Strengthen the education system in the Mosquitia region, pursuant to paragraph

150 of this judgment.
r) Take the necessary measures to ensure the accessibility of all public institutions in
La Mosquitia for persons with disabilities, pursuant to paragraph 151 of this judgment.
7. The State shall submit to the Court, within one year of notification of this judgment, a
report on the measures adopted to comply with it.
56
8. The Court will monitor full compliance with this judgment, in exercise of its authority
and in fulfillment of its obligations under the American Convention on Human Rights, and will
consider this case closed when the State has complied fully with its provisions.
Judges L. Patricio Pazmiño Freire, Eduardo Vio Grossi, and Humberto Antonio Sierra Porto
advised the Court of their individual concurring opinions.
DONE, at San José, Costa Rica, on August 31, 2021, in the Spanish language
57
I/A Court HR Case of the Miskito divers (Lemoth Morris et al.) v. Honduras. Judgment of
August 31, 2021. Judgment adopted at San José, Costa Rica in a virtual session.
Elizabeth Odio Benito

President
L. Patricio Pazmiño Freire Eduardo Vio Grossi
Humberto Antonio Sierra Porto Eduardo Ferrer Mac-Gregor Poisot
Eugenio Raúl Zaffaroni Ricardo C. Pérez Manrique
Pablo Saavedra Alessandri

Secretary
So ordered,
Elizabeth Odio Benito

President

Secretary
58
Annex 1
List of victims and their next of kin
Victim Family member Relationship

1 Opario Lemoth Morris Elisa Morris Johnson Lucas Mother
Agustina Saldaña Morris Sister
Israelita Wildan Morris Sister
Isabel Saliwet Morris Sister
Rosa Beatriz Lemoth Morris Sister
Reinica Morris Lucas Sister
Adalberto Maxwell Morris Brother
2 Hildo Ambrosio Trino Aurora Clemente Cley Wife
Jafet Ambrosio Clemente Son
Brens Ambrosio Clemente Son
Glenis Ambrosio Clemente Daughter
Maura Celina Ambrosio Clemente Daughter
Anacleto Ambrosio Tino Brother
3 Andrés Miranda Clemente Mirna Manuel Trino Wife
Cherly Miranda Manuel Daughter
Randy Miranda Manuel Son
Andro Miranda Manuel Son
Barry Miranda Manuel Son
4 Lorenzo Leman Bonaparte Esmeralda Macdonald Vicente Wife
Bermelinda Leman Macdonald Daughter
Charlin Esmeralda Leman Son
Macdonald
Loxi Leman Macdonald Daughter
Clinton Leman Macdonald Son
5 Bernardo Julián Trino Emma Misin Trino Mother
Cristina Clemente Washington Wife
Corna Julián Clemente Daughter
Kenneth Julián Clemente Son
Michael Julián Clemente Son
Julissa Julián Daughter
Dexter Julián Trino Son
6 José Trino Pérez Nacril Yusef Trino Lisar Father
Juana Pérez Nacril Mother
Ladricia Leman Bonaparte Wife
Kira Crisbel Trino Leman Daughter
Kidiana Trino Leman Daughter
Yoselin Trino Leman Daughter
7 Rómulo Flores Henríquez Kateri Thomas Mendoza Wife
Robojuan Flores Thomas Son
Gabriela Flores Thomas Daughter
Kateri Flores Thomas Daughter
8 Amilton Clemente Ruela Bonaparte Clemente Mother
Bonaparte Skerlin Bonaparte Clemente Jesús Daughter
Aura Selena Bonaparte Daughter
Jamstan Bonaparte Clemente Son
Romelia Bonaparte Clemente Daughter
Jimena Bonaparte Daughter
59
9 Timoteo Lemus Pisatty Richard Lemus Pisatty Father
Ana Lourdes Lemus Pisatty Sister
Ana Rosa Lemus Melado Daughter
Israel Lemus Melado Son
Leonzo Lemus Melado Son
Soledad Lemus Melado Daughter
10 Saipon Richard Toledo Anastacio Richard Father
Rita Toledo Mother
Anacio Richard Toledo Brother
Cera Richard Toledo Sister
Rosemary Richard Toledo Sister
Benigna Richard Toledo Sister
Edmunda Richard Toledo Sister
Elsa Richard Toledo Sister
Elsias Richard Toledo Sister
Orlenes Richard Toledo Sister
11 Licar Méndez Gutiérrez Mamerto Mensy Greham Father
Lethy Gutiérrez Roman Mother
12 Eran Herrera Paulisto Sofía Flores Paulisto Mother
13 José Martínez López Misterio Martínez Father
Ana Rosa López Mother
Edatina Martínez López Sister
Deonicia Martínez López Sister
Clemente Martínez López Sister
Vicente Martínez López Brother
Gabriel Martínez López Brother
George Bush Martínez López Brother
Flaviano Martínez López Brother
14 Próspero Bendles Marcelino Melvia Cristina Guerrero Wife
Mailor Roberto Bendles Guerrero Son
Jairo Bendles Guerrero Son
Maira Floripa Bendles Guerrero Daughter
Yeimelina Bendles Guerrero Daughter
Rubén Steven Bendles Guerrero Son
Melvin Kerry Bendles Guerrero Son
15 Roger Gómez Alfred Vilma Greham Velázquez Daughter
Cinthya Gómez Greham Daughter
Aldo Gómez Greham Son
Marlene Gómez Greham Daughter
Riqueña Gómez Greham Daughter
Rogelio Gómez Greham Son
Especel Bradle Valeriano Brother-in-
law
16 Bernardo Blackaus Emos Renelda Carlos Herrera Wife
Rosel Blackaus Daughter
Marcela Blackaus Daughter
Fernando Blackaus Son
María Berline Blackaus Daughter
Lexia Sael Blackaus Daughter
17 Flaviano Martínez López Misterio Martínez Father
Ana Rosa López Mother
60
Edatina Martínez López Sister
Deonicia Martínez López Sister
Clemente Martínez López Brother
Vicente Martínez López Brother
Gabriel Martínez López Brother
George Bush Martínez López Brother
Flaviano Martínez López Brother
José Martínez López Brother
Sonia Flores Grea Wife
Miguel Martínez Marín Son
Nieves Martínez Daughter
Corazón Martínez Daughter
Darling Mendoza Daughter
Obet Flores Daughter
4 additional children Children
18 Carcoth Padmoe Miller Maurina Padmoe Martínez Daughter
Daniela Yelani Padmoe Martínez Daughter
Carlene Zahara Padmoe Martínez Daughter
Yastan Sebastián Padmoe Son
Martínez
Michael Noel Padmoe Martínez Son
Yaser Sebastián Padmoe Martínez Son
19 Cooper Cresencio Jems Orancia Wit Wife
Suertelina Cresencio Wit Daughter
Joseph Cresencio Wit Son
Tierna Cresencio Wit Daughter
Mel Cresencio Wit Daughter
Misael Cresencio Wit Son
Juan Carlos Cresencio Wit Son
Sameria Cresencio Wit Daughter
20 Willy Gómez Pastor Brenda Gómez Benles Sister
21 Roberto Flores Esteban Rutilia Belli Ordóñez Wife
Dorla Flores Esteban Daughter
Smider Flores Belli Son
Steven Flores Belli Son
Sulema Flores Belli Daughter
Bronson Flores Belli Son
Daiana Flores Belli Daughter
22 Daniel Dereck Thomas Ladinia Boden Hapinton Wife
Emy Daniela Dereck Daughter
Belkys Daniela Dereck Daughter
Lady Daniela Dereck Daughter
23 Evecleto Londres Yumida Terna Gutiérrez Beckham Wife
Yelso Londres Son
Ceferino Londres Son
Donato Londres Son
Betsi Londres Daughter
Besy Londres Daughter
Gemela Londres Daughter
Tyson Londres Son
Kattia Londres Daughter
61
24 Amistero Bans Valeriano Lilian Thomas Wife
Santana Valdivia Bans Daughter
Martina Bans Daughter
Dalicia Bans Daughter
Rolvi Bans Son
Natividad Bans Son
Napoleon Bans Son
Norvel Bans Son
Nolvia Bans Daughter
25 Ex Dereck Claro Ruben Dereck Son
Dempsey Dereck Daughter
Rosella Dereck Daughter
Andrés Dereck Son
Rigoberto Dereck Son
Leonel Dereck Son
Silvana Dereck Daughter
Tecla Dereck Daughter
Ani Dereck Daughter
Lela Dereck Daughter
26 Leonel Saty Méndez Fanny Adalid Saty Mendéz Daughter
Ivette Saty Mendéz Daughter
Migdia Saty Mendéz Daughter
Sayana Saty Mendéz Daughter
Celine Saty Mendéz Daughter
27 Arpin Robles Tayaton Hiples Seision Beckam Wife
Desy Robles Daughter
César Robles Clarence Son
Ingelberto Robles Son
Usiel Robles Son
Clinton Robles Son
Lisa Mery Robles Daughter
Manly Robles Son
28 Freddy Federico Salazar Roberto Federico Macari Father
Lidia Willy Wife
Dickerson Federico Son
Melisendi Federico Daughter
Samni Federico Son
29 Onasis Cooper Brown Tránsito Brown Sabino Mother
Sosa Cooper Father
Masoni Cooper Son
Rosental Cooper Daughter
Yaneli Cooper Daughter
Rambel Cooper Son
30 Rolando Mónico Thomas Saldina Dicares Batz Wife
Erodina Mónico Daughter
Yolina Mónico Dicares Daughter
Kerly Mónico Daughter
Dicner Mónico Son
Roineri Mónico Son
Albert Rolando Mónico Son
Sorlelyn Mónico Dicares Son
62
Efrain Mónico Son
Alma Yanira Mónico Daughter
31 Daniel Flores Reyes Francis Blackaus Emos Wife
Alex Flores Son
Sami Flores Son
Chester Flores Son
Ismael Flores Son
Henry Flores Son
Frechel Flores Son
32 Carlos Castellón Cárdenas Imiclena Masiel Allen Wife
Tonerman Castellón Masiel Son
Dani Castellón Masiel Son
Dania Castellón Masiel Daughter
Eli Castellón Masiel Son
Damny Brigida Castellón Masiel Daughter
33 Melecio Pamistan Maick Pablo Padilla Morti Maick Brother
Raymunda Ex Sambola Wife
Melecia Pamistan Daughter
Mel Pamistan Daughter
Carmelo Pamistan Son
Menases Pamistan Son
34 Ralph Valderramos Álvarez Junior Valderramos Wepsta Son
Max Valderramos Zelaya Son
Cherly Danelee Valderramos Daughter
Gadfry
Odesa Valderramos Zuazsin Daughter
Dixon David Valderramos Zuazsin Son
Angelo Valderramos Zuazsin Son
Rex Valderramos Matute Son
Morna Valderramos Suanzin Daughter
Three additional children Children
35 Alfredo Francisco Brown There is no information on the family members of
36 Efraín Rosales Kirington these victims
37 Féliz Osorio Presby
38 David Esteban Bradley
39 Ramón Allen Felman
40 Ali Herrera Ayanco
41 Timoteo Salazar Zelaya
42 Mármol Williams García
63
Annex 2
Facts related to the victims
1. The Court will now refer to specific facts related to the victims in the case, which were
acknowledged by the State. In this regard, the Court notes that the Commission, in its Merits
Report, indicated that the information presented may contain inaccuracies with respect to the
dates on which the facts occurred, without this affecting the consistency of the information
presented.
Opario Lemoth Morris
2. Mr. Opario Lemoth Morris worked as a diver on a fishing boat owned by Geovany Py
Gop. 161 On May 2, 2001, he died after diving to a great depth. 162 According to the records of
the Main Guard of the Departmental Headquarters No. 9 of the National Police based in Puerto
Lempira, department of Gracias a Dios, the death of Mr. Opario Lemoth Morris “was due to
submersion.” 163 That same day, the Departmental Court of First Instance of Puerto Lempira
received 2,000.00 lempiras from Mr. Py Gop on behalf of Mr. Lemoth Morris. However,
Agustina Saldaña Morris, a family member of Mr. Lemoth Morris, stated that this amount
barely covered his funeral expenses. 164 She stated that despite having filed legal actions with
the Justice of the Peace and with a Magistrate, no proceedings took place and no
compensation payment was ordered. Mrs. Saldaña added that the Judge told her that the
case file had been lost. 165
Flaviano Martínez López
3. Mr. Flaviano Martínez López had an accident on August 22, 1992, while working on a
fishing boat owned by Arcadio Waldemar Molina. Upon surfacing, after diving to a depth of 21
strokes, and after finishing two tanks of oxygen, he began to feel severe dizziness, vomiting
and a sharp pain in his chest, as well as numbness in his extremities. 166 A week after the
accident he was taken to the Vicente D’Antoni Hospital in the city of La Ceiba, but was not
taken to a hyperbaric chamber. 167 Mr. Martínez was diagnosed with decompression syndrome,
tension headache exacerbated by sunlight exposure and musculoskeletal sequelae, as well as
post-traumatic lumbosacral pain, multicarential syndrome and a history of underwater spinal
cord trauma. 168 Between 1992 and 2011, he had three more diving-related accidents. 169 On
one occasion, in 1995, more than two weeks passed before he was taken to a hyperbaric
161
Cf. Death certificate issued by Departmental Headquarters No. 9 of the National Police of the Ministry of
Security of February 19, 2002 (merits file, folio 32).
162
Cf. Death certificate of September 24, 2002 issued by the National Registry of Persons (merits file, folio 32).
163
Cf. Death certificate issued by the Departmental Headquarters No.9 of the National Police of the Ministry of
Security of February 19, 2002 (merits file, folio 32).
164
Cf. Receipt for 2,000 lempiras dated May 2, 2001, with seal of the Secretariat of the Supreme Court of Justice
(merits file, folio 32).
165
Cf. Interview with Agustina Saldaña Morris dated October 15, 2014. Audio No. 1 (merits file, folio 32).
166
Cf. Ordinary labor lawsuit of first instance for seizure of assets as compensation for work-related accident and
temporary disability, signed with fingerprint allegedly of Flaviano Martínez López dated March 20, 2001 (merits file,
folio 32).
167
Cf. Interview with Flaviano Martínez López dated October 15, 2014 (merits file, folio 32).
168
Cf. Medical certificate issued by Dr. Miguel A. Sierra of the Medical College of Honduras, dated April 2, 1993.
Report of the Vicente D'Antoni Hospital dated January 30, 1996 (merits file, folio 33).
169
64
chamber. He did not receive compensation for these accidents, even though the boat owner,
Mr. Molina, was ordered to pay compensation. Mr. Martínez has various health problems
related to these accidents, he walks with extreme difficulty and has to pay for all his
medications. The victim stated that sometimes he goes several days without eating because
he has no money and does not receive any type of support. 170
Carcoth Padmoe Miller
4. Mr. Carcorth Padmoe Miller had an accident on June 20, 1993, while working for the
fishing company owned by Krelyn Macnab. After diving he suffered severe back pain and
because they were in Jamaica at the time, he was taken to a hospital in that country, where
he remained for 18 days, but was not taken to a hyperbaric chamber. 171Mr. Padmoe suffered
“divers’ decompression sickness” which left him with neurological sequelae in his lower limbs
and proximal weakness of the pelvic girdle. 172 In 1994, he filed a claim with the Occupational
Health and Hygiene Office in the city of Comayaguela, which decided that he was entitled to
a compensation of 43,232.50 lempiras. 173 However, in 2012, Mr. Padmoe stated that he had
not received such compensation. 174
5. In addition to that incident, in 1999 Mr. Padmoe had another accident while diving. He
stated that when he came out of the water, he felt severe pain in his chest and was unable
to speak. He spent three days on the boat paralyzed and after a week he arrived in the city
of Roatán to be treated in the hyperbaric chamber. 175 The doctor who treated him told him
that too much time had passed since his accident without being taken to a health center 176
and due to the delay in treatment he would not recover. The boat owner deducted the cost of
treatment from his wages and his brother, Adam Miller, claimed that Mr. Padmoe was
pressured by the boat owner and a representative of the Labor Ministry to sign an agreement
for compensation of 70,000.00 lempiras. However, Mr. Padmoe only received 50,000.00
lempiras. 177
6. In 2012, Mr. Padmoe stated that he walks with crutches and with great difficulty, that
he has to take pills for knee pain which he buys himself, that he is unemployed and that his
family supports him. 178
Amistero Bans Valeriano
7. Mr. Amistero Bans Valeriano suffered an accident on September 4, 2000, while working
as a diver. After several dives to a great depth, he began to suffer chest pains and was unable
170
171
Cf. Certification of the Secretariat of the Regional Labor Office of documents concerning Carcoth Padmoe Miller
of September 8, 1995 (merits file, folio 35).
172
Cf. Interview with Carcoth Padmoe Miller dated October 15, 2014 (merits file, folio 35).
173
Cf. Certification of the Secretariat of the Regional Labor Office of documents concerning Carcoth Padmoe Miller
of September 8, 1995 (merits file, folio 35).
174
175
Cf. Interview with Carcoth Padmoe, Puerto Lempira. January 16, Bros Laguna of 2008 (merits file, folio 35).
176
Cf. Interview with Carcoth Padmoe Miller dated August 6, 2012 (merits file, folio 35).
177
Cf. Interview with Carcoth Padmoe, Puerto Lempira, January 16, Bros Laguna 2008 (merits file, folio 35).
178
65
to move his limbs. 179 The captain of the fishing boat did not help him and after three days, at
the insistence of the other divers, he was taken to Roatán and placed in the hyperbaric
chamber for two days. He was then transferred to the hospital of La Ceiba. Mr. Valeriano
suffered decompression syndrome, 180 which left him with the following sequelae:
osteotendinous hyperreflexia, paresthesia of the right lower leg and slight difficulty walking. 181
He had to take medication due to the after-effects of the accident, but due to lack of money
he could not afford to buy it. In 2001, Mr. Valeriano filed a labor lawsuit before the Sectional
Labor Court against the owner of the boat, who indicated in his response that he has no
employer-worker relationship with the plaintiff and that he is not the owner of the vessel. In
2012, Mr. Valeriano stated that he suffers from kidney ailments, urination problems and
headaches, and has difficulty walking and needs to use a cane. 182
Rolando Mónico Thomas
8. Mr. Rolando Mónico Thomas suffered an accident on September 5, 1999, while working
as diver. After diving to a great depth, he felt numbness in half of his body and unsuccessfully
asked the owner of the fishing boat to take him to the city where the decompression
chamber 183was located. Three days after the accident he was taken to the hyperbaric chamber
where he remained for ten days. 184 In 2000, he appeared before the Labor Inspector to
describe the work accident he suffered. He stated that the company only paid him 3,500.00
lempiras and that he accepted it because he was in “enormous need of medicines and
treatment” due to the accident, but that this amount was not enough to cover his treatment
or the damage suffered. That same year a payment agreement was signed between Mr.
Thomas and the representative of the boat for 114,222.60 lempiras. 185 Mr. Thomas stated in
2012 that the process did not move forward and that he never received the compensation.
He added that he walks with difficulty, that he frequently feels dizzy and that he has to pay
for his own medical consultations and medication. 186
Ralph Valderramos Álvarez
9. Mr. Ralph Valderramos Álvarez had an accident on February 1, 1996, while working as
a diver on the boat owned by Sharon Delan Elwin. After diving to a depth of 140 feet, he
began to feel very ill, with lumbago, severe pain in his lower limbs and immediately lost
consciousness. He was subsequently taken to the Bay Islands where he was treated in a
hyperbaric chamber. 187 That same year he filed a labor lawsuit before the Sectional Labor
Court of La Ceiba for the payment of compensation against the boat owner. The court ordered
179
Cf. Certification of Record of appearance of December 13, 2000, of the Office of Occupational Health and
Safety (merits file, folio 36).
180
Cf. Interview with Amistero Bans, January 17, 2008 (merits file, folio 36).
181
Cf. Medical report for Amistero Bans, dated March 6, 2002, of the Occupational Health Service (merits file,
folio 36).
182
Cf. Interview with Amistero Bans Valeriano of August 6, 2012 (merits file, folio 36).
183
Cf. Record of appearance of Rolando Mónico Thomas of April 12, 2001, before the Labor Inspector II (merits
file, folio 37).
184
Cf. Interview with Rolando Mónico Thomas of August 6, 2012 (merits file, folio 37).
185
Cf. Calculation of temporary disability and compensation for Rolando Mónico Thomas of June 22, 2000, issued
by the Labor Inspector II (merits file, folio 37).
186
Cf. Interview with Rolando Mónico Thomas of August 6, 2012 (merits file, 38).
187
Cf. Ordinary labor lawsuit filed by Ralph Valderamos Álvarez against Sharon Delan Elwin on July 18, 2003,
before the Departmental Labor Court (merits file, folio 38).
66
the seizure of the boat 188 and a conciliation hearing was held. However, the defendant filed a
motion claiming the court’s lack of jurisdiction, which was declared admissible. Mr.
Valderramos then appealed this ruling, but his appeal was dismissed. That same year, the
embargo on the fishing vessel was lifted and the process had no result. 189
Timoteo Lemus Pisatty
10. On November 2, 2002, Mr. Timoteo Lemus Pisatty had an accident while working on
the boat owned by Horacio Gilbert Wood. Mr. Lemus had been diving at a depth of 115 feet
and had used five tanks of compressed air, and when he surfaced he suffered paralysis of his
lower limbs. 190 The following day, he was transferred to Roatán Hospital and placed in the
hyperbaric chamber; he received 16 treatments in the chamber, but showed no visible
improvement. He was diagnosed with secondary paralysis, chronic debilitating disease and
urosepsis. 191 On November 26, 2002, Mr. Gilbert agreed to pay Mr. Lemus 10,000.00 lempiras
and to provide him with a monthly payment until his recovery. 192 On December 24, 2002, the
hospital of Puerto Lempira confirmed that Mr. Lemus suffered from decompression syndrome
and paralysis. 193 His father stated that after the accident his son remained paralyzed and
bedridden, that he did not receive medical care, that he had to purchase any medication he
needed and that his health continued to deteriorate until his death in 2003. He added that
the funeral expenses totaled 40,631.61 lempiras of which the boat owner paid 2,764.00. 194
Subsequently, the Sectional Labor Judge of La Ceiba ordered Mr. Wood to pay a monthly
pension to the relatives of Mr. Lemus, which was not paid. 195
Ex Dereck Claro
11. Mr. Ex Dereck Claro suffered an accident on October 20, 1995, while working as diver
on the boat owned by Mrs. Martha Chávez. After diving to a great depth, he began to feel
severe headaches, dizziness, vomiting, weakness and a lack of sensibility in his upper and
lower extremities. 196 A few days later he was taken to the hyperbaric chamber in the city of
Roatán where he was hospitalized for a week. 197 Mr. Claro presented decompression
symptoms characterized by hypoesthesia in the lower limbs with mild loss of strength and
neurogenic bladder which was treated with a Foley catheter. 198 Mrs. Chávez covered the
transportation and medical expenses and promised to pay him compensation, which did not
188
Cf. Special Report. Complaint 475-IGJT·PJ-08. “Case of Miskito Divers” General Inspectorate of Courts and
Tribunals, January 6, 2009 (merits file 38).
189
Cf. Special Report. Complaint No. 475-IGJT·PJ-08. “Case of Miskito Divers” General Inspectorate of Courts
and Tribunals, January 6, 2009 (merits file, folio 38).
190
Cf. Labor proceeding brought by Timoteo Lemus Pisatty against Horacio Gilbert Wood (merits file, folio 39).
191
Cf. Labor proceeding brought by Timoteo Lemus Pisatty against Horacio Gilbert Wood (merits file, folio 39).
192
Cf. Private agreement between Horacio G. Wood and Timoteo Lemus Pisatty dated November 26, 2002 (merits
file, folio 39).
193
Cf. Certificate of the Hospital of Puerto Lempira of December 24, 2002 (merits file, folio 39).
194
Cf. Labor proceedings brought by Timoteo Lemus Pisatty against Horacio Gilbert Wood (merits file, folio 39).
195
Cf. Interview with Richard Lemus Pisatty dated October 14, 2014 (merits file, folio 39).
196
Cf. Record of appearance of Ex Dereck Claro before the Labor Inspector III of August 2, 1996 (merits file,
folio 40).
197
Cf. Ordinary labor lawsuit filed on October 22, 1997, by Ex Dereck Claro before the Court of First Instance
198
Cf. Medical certificate of October 30, 1995, from Cornerstone Medical Services and Hyperbaric Chamber,
Roatán (merits file, folio 40).
67
happen. 199 Mr. Claro filed a claim for compensation before the Labor Inspector, who awarded
him compensation of 125,356.00 lempiras. However, this was not paid. 200 The labor claim he
submitted was archived for lack of procedural activity in the lawsuit. Mr. Claro stated in 2012
that he suffered from back pain, that he had great difficulty walking and that he had to buy
his own medicines. 201 The petitioner reported that Mr. Claro died in July 2017 due to urethral
stricture.
Hildo Ambrosio Trino, Andrés Miranda Clemente, Lorenzo Leman Bonaparte,

Bernardo Julián Trino, José Trino Pérez Nacril, Rómulo Flores Henríquez and Amilton
Bonaparte Clemente
12. On March 15, 2000, Hildo Ambrosio Trino, Andrés Miranda Clemente, Lorenzo Leman
Bonaparte, Bernardo Julián Trino, José Trino Pérez Nacril, Rómulo Flores Henríquez and
Amilton Bonaparte Clemente, were working as divers on the fishing boat owned by Lewis
Delano Gough. The butane tank on the vessel exploded, causing a fire. 202 Mirna Manuel Tinto,
wife of Andrés Miranda, stated that according to the testimonies of divers who were on other
boats, the alleged victims had to jump into the water. 203 Six of the divers disappeared and
their whereabouts are unknown. 204 Some relatives of the alleged victims stated that their
bodies were never found. 205 Regarding Hildo Ambrosio, his daughter stated that they received
her father's burned remains and buried him. 206 Amilton Bonaparte's mother stated that a crew
member who worked on the boat only rescued the captain and not the other people. 207 In
2002, the relatives of the seven deceased persons filed a labor lawsuit against Mr. Delano
before the Departmental Court of First Instance, but in 2008 the process was only at the initial
stage. 208
Leonel Saty Méndez
13. Mr. Leonel Saty Méndez suffered an accident on March 12, 2001, while working as a
diver on the boat owned by Carlos Arturo Fiallos. After diving to a great depth, his body
became numb 209 but the captain of the boat was unwilling to take him to a medical center. 210
Three days after the incident, he was taken to the hyperbaric chamber in the city of Roatán
199
Cf. Formal claim for compensation certified by the General Directorate of Social Security on June 27, 1997
200
201
202
Cf. Ordinary labor lawsuit filed on February 25, 2002, in the Departmental Court of First Instance against
Lewis Delano Gough Valladarez. (merits file, folio 41).
203
Cf. Interview with Maura Celina Ambrosio Clemente dated October 14, 2014 (merits file, folio 41).
204
Cf. Ordinary labor lawsuit filed on February 25, 2002, in the Departmental Court of First Instance against
Lewis Delano Gough Valladarez (merits file, folio 41).
205
Cf. Interview with Cristina Clemente Washington dated August 6, 2012, interview with Juan Pérez Nacril dated
August 6, 2012, and interview with Mirna Manuel Trino dated October 15, 2014 (merits file, folio 41).
206
Cf. Interview with Maura Celina Ambrosio Clemente dated October 14, 2014 (merits file, folio 41).
207
Cf. Interview with Ruela Bonaparte Clemente dated October 14, 2014 (merits file, folio 41).
208
Cf. Special Report. Complaint No. 475-IGJT-PJ-08. “Case of Miskito Divers” General Inspectorate of Courts
and Tribunals, January 6, 2009 (merits file, folio 41).
209
Cf. CONADEH survey of Leonel Saty Méndez, undated (merits file, folio 42).
210
Cf. Interview with Leonel Saty Méndez dated October 15, 2014 (merits file, folio 42).
68
and was hospitalized for nearly a month in the medical center. 211 According to the medical
certificate, upon admission to the hospital Mr. Méndez presented “severe paralysis of the
lower limbs,” suffered from decompression sickness and was recommended to receive
physiotherapy. 212 The owner of the boat gave him a check for 50,000.00 lempiras, but it had
no funds, and later he only received 10,000.00 lempiras, which was not enough to cover his
medical expenses. In 2001, Mr. Méndez filed a claim for compensation before the Department
of Occupational Health and Safety due to the accident. 213 Two days later, a hearing was held
at which only Mr. Méndez and the Labor Inspector appeared. 214 Mr. Méndez’s process was not
completed and he did not receive compensation. In 2014 he stated that he has difficulty
walking and urinating. 215
David Esteban Bradley
14. Mr. David Esteban Bradley suffered an accident on May 28, 2003, on the lobster fishing
boat owned by Edwin Sanchez and Tano Bodden. After diving to a great depth, he felt dizzy
and was taken to the hyperbaric chamber in the city of Roatán, where he was hospitalized for
25 days. 216 According to a medical report, Mr. Bradley suffered from decompression sickness
and required physical therapy. 217 Mr. Bradley filed a claim for compensation before the Labor
Inspector, 218 but from the available information it appears that this proceeding did not
produce any result.
Evecleto Londres Yumidal
15. Mr. Evecleto Londres Yumidal suffered an accident on November 22, 2002, while
working as a diver on the lobster fishing boat owned by Carlos Casimiro. After diving to a
great depth, he began to feel dizzy, but the captain was unwilling to do anything about it. At
the request of the other divers, he was transferred to the hospital at Puerto Lempira; the
captain of the boat told him that he would not take him to the hyperbaric chamber because
his pain was “nothing.” 219 According to the medical report, Mr. Yumidal suffered barotrauma
with sequelae of paraparesis secondary to spinal cord compression due to diving-related
accident and a prognosis of 30% “walking limitation.” 220 On November 28, 2002, Mr. Yumidal
went to the Labor Inspector seeking compensation for the accident suffered. 221 His wife, Terna
Gutiérrez Beckham, stated in 2012 that the boat owner never paid them, that her husband is
bedridden, deaf and that his eyesight has progressively deteriorated. She added that he does
not receive any type of medical assistance or medication. 222
211
212
Cf. Certificate of Cornerstone Hyperbaric Chamber and Medical Services, Roatán, Bay Islands, March 26, 2001
and medical note from the Mauner Lacayo Fonseca Clinic of April 9, 2001 (merits file, folio 42).
213
214
Cf. Record of appearance of Leonel Saty Méndez of May 22, 2001 (merits file, folio 42).
215
Cf. Summons issued to Carlos Arturo Fiallos of May 22, 2001 (merits file, folio 42).
216
Cf. Record of appearance of David Esteban Bradley, undated (merits file, folio 42).
217
Cf. Medical certificate of July 30, 2003, from the Director of Puerto Lempira Hospital (merits file, folio 42).
218
Record of appearance of David Esteban Bradley, undated (merits file, folio 42).
219
Cf. Record of appearance of Evecleto Londres Yumidal of November 28, 2002 (merits file, folio 43).
220
Cf. Medical certificate of June 4, 2003, of the Director of Puerto Lempira Hospital (merits file, folio 43).
221
Cf. Record of appearance of Evecleto Londres Yumidal of November 28, 2002 (merits file, folio 43).
222
Cf. Interview with Terna Gutiérrez Beckam of August 6, 2012 (merits file, folio 43).
69
Arpin Robles Tayaton
16. Mr. Arpin Robles Tayaton suffered an accident on November 11, 2002, while working
as a diver on the boat owned by Mr. Jeovany. After diving to a great depth, he felt numbness
on the right side of his body and could not move his legs. 223 Four days after the accident, he
was taken to the hospital in Puerto Lempira, where he had to pay all his medical expenses
totaling 8,324.00 lempiras. 224 The medical report dated November 29, 2002, stated that Mr.
Robles “suffered an immersion accident at a depth of 82 feet, with decompression stops; after
10 immersions he presented monoparesis and pain in the right pelvic region; he was not
placed in a decompression chamber.” The report also stated that he required treatment with
neurotropic drugs, analgesics and therapy. 225 Subsequently, in 2014, Mr. Robles reported that
he had suffered another accident in 2003, when he dived to great depth and his eardrum
ruptured. He stated that he did not receive any compensation for the accidents he suffered,
that he feels pain in his kidneys, dizziness, has hearing problems in one ear and that he
cannot work as a result of the accidents, and therefore his children have to support him. 226
Daniel Flores Reyes
17. Mr. Daniel Flores Reyes suffered an accident in 2002 while working as diver on the
fishing boat owned by Jaime Javier Thompson Sevellón. 227 He had been diving at a great
depth and when he surfaced he felt dizzy and fainted. Five days later he was taken to the
hyperbaric chamber in Roatán. 228Mr. Flores suffered from barotrauma, lumbar pain and
impaired urination. It was recommended that he receive neurotropic drugs, analgesics and
therapy. 229 Mr. Flores went to the Labor Inspector and on May 29, 2003, Mr. Thompson agreed
to pay him 28,063.00 lempiras as compensation for the accident. 230 However, in 2014 the
victim stated that had not received that amount and that he went to the Ministry of Labor in
La Ceiba to report the matter. He said he received only 15,000.00 lempiras, which was
insufficient to cover all the medical expenses incurred. 231 In 2014, Mr. Flores stated that he
continues to suffer from dizziness and headaches. 232
Freddy Federico Salazar
18. Mr. Freddy Federico Salazar suffered an accident on May 26, 2003, while working as
diver on the boat owned by Eduardo Saúl Ariaz. After diving to a great depth, he felt dizzy,
but the captain simply told him to “lie down and rest” and then continue diving. A few days
223
Cf. Formal claim for compensation by Arpin Robles Tayaton against Jeovany of March 27, 2003 (merits file,
folio 43).
224
Cf. Formal claim for compensation by Arpin Robles Tayaton against Jeovany of March 27, 2003 (merits file,
folio 43).
225
Cf. Medical certificate of November 29, 2002, from the Puerto Lempira Hospital (merits file, folio 43).
226
Cf. Interview with Arpin Robles Tatayon dated October 14, 2014 (merits file, folio 44).
227
Cf. Formal claim for compensation by Daniel Flores Reyes against Jaime Javier Thompson Servellón dated
August 6, 2003 (merits file, folio 44).
228
Cf. Interview with Daniel Flores Reyes dated October 15, 2014 (merits file, folio 44).
229
Cf. Medical certificate of September 10, 2003, from Puerto Lempira Hospital (merits file, folio 44).
230
Cf. Act of Conciliation dated April 29, 2003 whereby Jaime Javier Thompson Servellón and Daniel Flores Reyes
appeared before the Labor Inspector (merits file, folio 44).
231
232
70
after the accident he was taken to the city of Roatán; however the boat owner did not take
him to the hyperbaric chamber, only to a pharmacy. 233 According to a medical report, Mr.
Salazar suffered from barotrauma and was told that if he were to receive medical care, his
recovery could take six to eight months. 234 On August 6, 2003, Mr. Salazar filed a claim for
compensation with the Labor Inspector for the work-related accident. 235 In 2012, he stated
that the process had not progressed and that he had not received any compensation. He said
that he suffers from constant headaches, that he has to pay for his own medical consultations
and medications and that due to his health condition he can no longer work so his wife or his
in-laws have to support him. 236
Cooper Cresencio
19. Mr. Cooper Cresencio suffered an accident on March 19, 1999, while working as a diver
on the fishing boat owned by Brusito Borden. After diving to a great depth, he felt severe
chest pains, 237 but the owner of the boat told him to continue working and not to be “lazy.” 238
He went back underwater and when he came to the surface he collapsed. 239 A week later, he
was transferred to the city of Roatán where he was placed in the hyperbaric chamber. The
boat owner did not give him any money or support him by paying for his medicines. 240
According to a medical report, Mr. Cresencio suffered decompression sickness, decreased
strength and sensitivity, loss of sphincter control and intestinal obstruction. He was also told
that he should not return to diving because “his case is severe.” 241 Mr. Cresencio filed a claim
for compensation for the work accident before the Labor Inspector, who made a partial
calculation of the compensation that he never received. Mr. Cresencio stated that he suffers
from pain in the back of his neck, that he often feels like vomiting, that his blood pressure is
very high and that noise causes him headaches. He added that he suffers from poor eyesight
and that he has to cover the cost of his own medicines. 242
Félix Osorio Presby
20. Mr. Félix Osorio Presby had an accident on September 1, 1995, while working as diver
on the fishing boat owned by Haylock Merren. After diving to a great depth, he began to
experience dizziness, difficulty hearing, vomiting, headaches and eye pain. 243 Four days after
the accident, he was taken to the Evangélica Morava Clinic in Ahuas. 244 The captain of the
233
Cf. Record of appearance of Freddy Federico Salazar of August 6, 2003 (merits file, folio 44).
234
Cf. Medical certificate of August 1, 2003, from the Puerto Lempira Hospital (merits file, folio 44).
235
Cf. Record of appearance of Freddy Federico Salazar of August 6, 2003 (merits file, folio 45).
236
Cf. Interview with Freddy Federico Salazar dated August 6, 2012 (merits file, folio 45).
237
Cf. Formal claim for compensation by Cooper Cresencio against Brusito Borden of September 8, 2003 (merits
file, folio 45).
238
Cf. Interview with Cooper Cresencio dated October 15, 2014 (merits file, folio 45).
239
Cf. Formal claim for compensation by Cooper Cresencio against Brusito Borden of September 8, 2003 (merits
file, folio 45).
240
Cf. Record of appearance of Cooper Crescencio, of September 8, 2003 (merits file, folio 45).
241
Cf. Certificate from Cornerstone Hyperbaric Chamber and Medical Services of March 29, 1999, regarding
Cooper Crescencio (merits file, folio 45).
242
Cf. Interview with Cooper Cresencio dated October 15, 2014 (merits file, folio 45).
243
Cf. Formal claim for compensation by Felix Osorio Presby against Heysmer Wasshal Haylock Merren dated
October 9, 1995 (merits file, folio 46).
244
Cf. Medical certificate of September 6, 1995, from the Evangélica Morava Clinic (merits file, folio 46).
71
boat did not pay for his medical expenses and he only received 700 lempiras. Mr. Osorio
suffered from decompression syndrome. 245 On November 20, 1995, he filed a labor lawsuit
seeking compensation for a work-related accident and temporary disability. 246 In 1996, the
Labor Court accepted his petition and ordered the seizure of the defendant’s bank accounts.
On June 26, 1997, the Banco Atlántida S.A. of La Ceiba reported that Mr. Merren had an
account for the amount of 19,228.04 lempiras, but on August 28, 2003, the file was ordered
to be archived due to lack of activity for more than three years. 247
Onasis Cooper Brown
21. Mr. Onasis Cooper Brown suffered an accident on December 7, 2001, while working as
diver on the fishing boat owned by Marlon Talun Haylock. After diving to a great depth, he
felt dizziness and body pains, and was taken to the hospital in Puerto Lempira. 248 The medical
certificate indicated that Mr. Cooper suffered from decompression syndrome due to “a diving
accident” and, according to a subsequent medical evaluation, he had “decompression sickness
(…) and 100% walking disability.” 249 Mr. Cooper filed a claim for compensation for the work-
related accident, in which he argued that the boat owner only paid him 1,500 lempiras, which
did not even cover his medical expenses. 250 The Ministry of Labor and Social Security
calculated that Mr. Cooper was entitled to compensation of 153,708.32 lempiras; 251 however,
his application was unsuccessful. 252 According to Mr. Cooper’s mother, Mr. Cooper died in
2004 after being paralyzed for years as a result of decompression syndrome. 253
Saipón Richard Toledo
22. According to the statement of Anastacio Richard Bais, his father, Mr. Saipón Richard
Toledo died on January 15, 2004, while working on the boat owned by Marco Antonio Bonilla.
Mr. Toledo was in the sea along with another diver and after diving to a great depth, came to
the surface, fainted and did not regain consciousness. 254 The same day his sister was informed
that Mr. Toledo had died while working on the boat. The family received his remains three
days later, because the area where the incident occurred was far from their home. 255 Mr. Bais
245
Cf. Formal claim for compensation by Felix Osorio Presby against Heysmer Wasshal Haylock Merren of October
9, 1995 (merits file, folio 46).
246
Cf. Ordinary labor lawsuit filed by Osario Presvy against Heysmer Wesshal Haylock Merren of November 20,
1995 (merits file, folio 46).
247
Cf. Order for seizure of assets issued by the Departmental Court of First Instance, of August 23, 1996 (merits
file, folio 46).
248
Cf. Formal claim for compensation by Onasis Cooper Brown against Marlon Talun Haylock (merits file, folio
46).
249
Cf. Medical certificates from the Puerto Lempira Hospital dated November 29, 2002, October 22, 2003 and
March 11, 2004 (merits file, folio 46).
250
Cf. Formal claim for compensation filed by Onasis Cooper Brown against Marlon Talun Haylock (merits file,
folio 47).
251
Cf. Calculation of compensation for occupational accident by the Labor Inspector II, March 11, 2004 (merits
file, folio 47).
252
Cf. Record of non-appearance of the legal representative of the lobster fishing boat Flamingo 1, dated
December 30, 2004 (merits file, folio 47).
253
Cf. Interview with Tránsito Brown Sabino dated August 6, 2012 (merits file, folio 47).
254
Cf. Formal claim for compensation of March 29, 2004, of Anastacio Richard Bais against Marco Antonio Bonilla
255
Cf. Interview with Orlenes Richard Toledo dated October 16, 2014 (merits file, folio 47).
72
filed a claim with the Labor Inspector for the fatal work-related accident against Mr. Bonilla. 256
On the same day the Ministry of Labor and Social Security calculated the compensation due
and determined that the claimant was entitled to compensation of 51,356.00 lempiras. 257 On
May 2, 2004, Mr. Toledo’s mother and Mr. Bonilla agreed on compensation of 53,495.00
lempiras. The record states that Mr. Bonilla had already paid 30,000 lempiras. 258 Mr. Toledo’s
sister argued that this amount was insufficient in view of the harm caused to her family. 259
Efraín Rosales Kirington
23. Mr. Efraín Rosales Kirington suffered an accident on December 9, 2003, while working
as a diver on the fishing boat owned by Antonio Bonilla. After diving to a great depth, he
fainted and was unconscious for four hours. The boat owner did not want to take him to a
hyperbaric chamber so the following day he had to travel fifteen hours to begin treatment in
the chamber, without the boat owner paying for his medical expenses. 260 According to the
medical certificate issued, Mr. Rosales suffered from decompression sickness and as a result
of the accident his eyesight was greatly impaired. On February 12, 2004, Mr. Rosales filed a
claim for compensation with the Labor Inspector for the work accident he suffered. 261 On
March 17, 2004, Mr. Bonilla failed to appear at the proceeding, which was duly recorded, 262
and the process did not produce any results.
Melesio Pamistan Maick
24. Mr. Melesio Pamistan Mack suffered an accident on March 7, 2003, while working as
diver on the fishing vessel owned by Pedro García and Loly Torres. After diving to a great
depth, he began to feel dizzy and his body went numb. Five days after the accident, he was
taken to the city of Roatán where he was hospitalized for one month. The boat owners paid
him around 5,980 lempiras. 263 According to the medical certificate dated March 25, 2003, Mr.
Pamistan suffered from decompression syndrome and was unable to walk, so he was treated
in the hyperbaric chamber. 264On October 14, 2003, the hospital in Puerto Lempira certified
that he suffers from a 40% walking disability. 265 Mr. Pamistan filed a claim for compensation
with the Labor Inspector, who determined that he was entitled to a compensation of
256
Cf. Formal claim for compensation of March 29, 2004, filed by Anastacio Richard Bais against Marco Antonio
Bonilla (merits file, folio 47).
257
Cf. Calculation of compensation for fatal occupational accident dated March 29, 2004, by the Labor Inspector
II (merits file, folio 47).
258
Cf. Record of appearance of April 2, 2004, before the Labor Inspector II (merits file, folio 47).
259
Cf. Interview with Orlenes Richard Toledo dated October 16, 2014 (merits file, folio 47).
260
Cf. Formal claim for compensation filed by Efraín Rosales Kirington against Tonio Bonilla dated February 12,
261
Cf. Formal claim for compensation filed by Efraín Rosales Kirington against Tonio Bonilla dated February 12,
262
Cf. Record of non-appearance by Marco Tonio Bonilla of March 17, 2004 (merits file, folio 48).
263
Cf. Formal claim for compensation filed by Melecio Pamistan Maick against Pedro García and Loly Torres dated
February 26, 2004 (merits file, folio 48).
264
Cf. Certificate from the Cornerstone Hyperbaric Chamber and Medical Services Hospital, dated March 25, 2003
265
Cf. Certificate from the Puerto Lempira Hospital dated October 14, 2003 (merits file, folio 48).
73
19,859.00 lempiras. 266 However, the boat owner never appeared at the proceeding. 267 In
2012, Mr. Pamistan stated that he had a serious urinary infection, severe pain in his spine
and walked with a cane. He also buys his own medicines and the only medical attention he
receives is private. 268
Willy Gómez Pastor
25. Mr. Willy Gómez Pastor suffered an accident on February 11, 2003, while working as
a diver on the fishing boat owned by Marylu Fedrick. After diving to a great depth, he fainted
and the following day he was taken to Roatán where he was hospitalized for one month. The
owner of the fishing boat promised to cover the cost of medical services and pay
compensation, but this did not occur. 269 According to the medical certificate from the hospital
in Roatán, Mr. Gómez suffered from decompression syndrome and was treated in the
hyperbaric chamber. 270 Also, according to a subsequent report from the hospital in Puerto
Lempira, Mr. Gómez suffered the following sequelae: walking with crutches, poor balance and
neurogenic bowel and bladder. 271 Mr. Gómez filed a claim for compensation for the work
accident with the Labor Inspector, 272 who determined that was entitled to a compensation of
197,690.35 lempiras because he has a permanent disability of 80%. 273 However, this
indemnity was never paid. Mr. Gómez stated that he suffers continuous pain in his chest, neck
and legs, that he cannot walk much as he often stumbles. He added that he does not receive
medical treatment for his ailments and has to buy his own medicines. 274
Licar Méndez
26. Mr. Mamerto Mensy Gream, the father of the boy Licar Méndez, stated that on
December 12, 2003, his son disappeared while working on a boat owned by Mr. Darwin. His
son was sixteen years old and had spent six days aboard the vessel. According to Mr. Mensy’s
statement, the boat captain left the boy Licar Méndez in the cayuco (canoe) as punishment
for having lost a diver. The captain only picked up the diver and when he returned hours later
he did not find the boy. On January 21, 2004, Mr. Mensy filed a complaint with the Labor
Inspector because of what happened to his son, but no information is available regarding the
outcome of this process. 275
Roberto Flores Esteban
266
Cf. Calculation of Compensation for occupational accident of the Labor Inspector II, dated March 1, 2004,
267
Cf. Interview with Pablo Padilla Morti Maick on August 6, 2012 (merits file, folio 48).
268
Cf. Interview with Pablo Padilla Morti Maick on August 6, 2012 (merits file, folio 48).
269
Cf. Formal claim for compensation filed by Willy Gómez Pastor against Marylu Pedrik, dated October 1, 2003
270
Cf. Record of the Cornerstone Hyperbaric Chamber and Medical Services dated March 12, 2003 (merits file,
folio 49).
271
Cf. Record of the Puerto Lempira Hospital dated July 9, 2004 (merits file, folio 49).
272
Cf. Formal claim for compensation filed by Willy Gómez Pastor against Marylu Pedrik, dated October 1, 2003
273
Cf. Calculation of occupational accident by the Labor Inspector, dated July 9, 2004 (merits file, folio 49).
274
Cf. Interview with Willy Gómez Pastor on August 6, 2012 (merits file, folio 49).
275
Cf. Formal claim for compensation filed by Mamerto Mensy Gream against Mr. Darwin of January 21, 2004
74
27. Mr. Roberto Flores Esteban suffered an accident on February 23, 2000, while working
as a diver on the fishing boat owned by Rafael Zapata. After diving to a great depth, he felt
one of his legs go numb. The next day he was taken to the community of Cauquira where he
was hospitalized for two weeks in FUDEMA’s hyperbaric chamber. 276 According to the medical
certificate from the Puerto Lempira hospital, dated November 2003, Mr. Flores suffered from
decompression syndrome “with a 30% walking impairment.” 277 Mr. Flores filed a claim for
compensation with the Labor Inspector for the work accident he suffered, arguing that Mr.
Zapata had only paid him 4,000.00 lempiras. 278 However, this process did not achieve any
result. According to a statement made his wife in 2012, Mr. Flores is bedridden, has no
physical movement in his arms or legs and has not received medical care. 279
Daniel Dereck
28. Mr. Daniel Dereck suffered an accident on November 5, 2000, while working as a diver
on a fishing boat owned by Jaime Thomson. After diving to a great depth and returning to the
surface, he felt that his body was paralyzed. The next day he was taken to the city of Roatán
where he was hospitalized for more than a week in the hyperbaric chamber. 280 According to
the medical certificate dated November 2000 from the hospital in Roatán, Mr. Dereck suffered
from decompression sickness with severe loss of strength in his lower limbs, which made him
incapable of standing. 281 Jaime Thompson did not pay him compensation for the accident and
only offered to employ him again, which he accepted due to his situation of need. 282 As a
result, he had another accident in 2004 and suffered problems with his hernia and an infection
that prevented him from urinating. 283 He also had to go to the hospital in Puerto Lempira for
treatment without Mr. Thompson covering the medical expenses. 284 Mr. Dereck filed a formal
claim for compensation with the Ministry of Labor and Social Security of La Ceiba for the work
accident suffered in November of 2000, but only received 3,000.00 lempiras from the boat
owner outside of the proceedings. Mr. Dereck has great difficulty walking. 285
Eran Herrera Palisto
29. Mrs. Sofía Flores Palisto, mother of Mr. Eran Herrera Palisto, stated that on August 8,
2002, the victim died in an accident while working on a boat owned by Brux Borden. Mrs.
Flores filed a labor claim with the Labor Inspector against Mr. Borden 286 and on November 5,
276
Cf. Formal claim for compensation filed by Roberto Flores Esteban against Rafael Zapata on November 17,
277
Cf. Medical certificate of the Puerto Lempira Hospital of November 17, 2003 (merits file, folio 50).
278
Cf. Formal claim for compensation filed by Roberto Flores Esteban against Rafael Zapata dated November 17,
279
Cf. Interview with Rutilia Belli Ordoñez dated August 6, 2012 (merits file, folio 50).
280
Cf. Formal claim for compensation filed by Daniel Dereck against Jaime Thompson, on April 28, 2004 (merits
file, folio 50).
281
Cf. Certificate of the Cornerstone Chamber Hospital and Medical Service, dated 14 November 2000 (merits
file, folio 50).
282
Cf. Formal claim for compensation filed by Daniel Dereck against Jaime Thompson, on April 28, 2004 (merits
file, folio 50).
283
Cf. Formal claim for compensation of Daniel Dereck against Jaime Thompson dated April 28, 2004 (merits file,
folio 50).
284
Cf. Interview with Daniel Dereck dated August 6, 2012 (merits file, folio 51).
285
Cf. Interview with Daniel Dereck dated August 6, 2012 (merits file, folio 51).
286
Cf. Order dated January 9, 2003, from the Labor Inspector notifying the Judge (merits file, folio 51).
75
2002, the defendant was summoned to appear, but did not do so. 287 There was no result from
this process.
Bernardo Blackaus Emos
30. Mrs. Renelda Carlos Herrera, wife of Mr. Bernardo Blackaus, stated that her husband
died on November 5, 2002, while working as a diver on the fishing boat owned by Paulino
Adalid Hernández Reyes. 288 Mr. Blackaus was diving at great depth, when there was a storm
and a bolt of lightning struck close to where he was. Mr. Blackaus went back underwater and
when he surfaced he was bleeding and died the same day. 289 Mrs. Herrera went to the Labor
Inspector and on December 8, 2003 a payment agreement was signed with Mr. Hernández.
A payment of 120,000 lempiras was agreed in favor of Mrs. Herrera, 290 and in 2014 she
received 65,000.00 lempiras, which included funeral expenses. However, this amount was
minimal and she filed a complaint with the Labor Ministry, but no action was taken. 291
Alí Herrera Ayanco
31. Mrs. Marlene Alemán Laines, wife of Mr. Alí Herrera, stated that her husband died while
working on a boat owned by Gary Douglas Hynds. Mrs. Alemán went to the Labor Inspector
and in 2003, she and Mr. Hynds signed an agreement to pay 46,560.00 lempiras in favor of
Mrs. Alemán. It was also recorded that she had previously received the sum of 23,000.00
lempiras. 292
Mármol Williams García
32. Mrs. Clara Inés Wilson Dario, wife of Mr. Mármol Williams García, stated that her
husband died while working on the boat owned by Marco Antonio Bonilla Castillo. Mrs. Wilson
went to the Labor Inspector and on January 26, 2004, she and Mr. Bonilla signed an
agreement to pay 131,174.40 lempiras in favor of Mrs. Williams. It was recorded that the
payment was made on that date. 293
José Martínez López
33. Mrs. Emiliana Urbina Mena, partner of Mr. José Martínez, stated that he died on
November 8, 2003, while working on a boat owned by Paulino Adalid Hernández Reyes. 294 Mr.
Martínez dived to a great depth and fainted, but did not receive any type of treatment
287
Cf. Report dated November 13, 2002, of the Labor Inspector (merits file, folio 51).
288
Cf. Letter of agreement to pay from Paulina Hernández to Reynalda Carlos Herrera, dated December 8, 2013
289
Cf. Interview with Reynalda Carlos Herrera dated October 15, 2014 (merits file, folio 51).
290
Cf. Letter of agreement to pay from Paulina Hernández to Reynalda Carlos Herrera, dated December 8, 2013
291
Cf. Interview with Reynalda Carlos Herrera dated October 15, 2014 (merits file, folio 51).
292
Cf. Letter of agreement to pay from Gary Douglas Hynds to Marlene Alemán Lainez, dated April 1, 2003
293
Letter of agreement to pay from Marco Antonio Bonilla to Clara Inés Wilson, dated January 26, 2004 (merits
file, folio 52).
294
Cf. Letter of agreement to pay from Paulina Adalid Hernández to Emiliana Urbina Mena, dated February 17,
76
afterwards. Hours later, when they tried to take him to a medical center, he died. 295 Mrs.
Urbina went to the Labor Inspector and in 2004 she and Mr. Hernández signed letter of
commitment in which he agreed to pay 100,000 lempiras in favor of Mrs. Urbina, and it was
recorded that the payment was completed on that date. 296 However, this sum of money was
insufficient to cover all the expenses and damages caused by the death of her partner. Mr.
Martínez’s family subsequently filed a complaint with the Ministry of Labor of La Ceiba, but
there was no result. 297
Alfredo Francisco Brown
34. Mrs. Linda Paulista Manister, sister of Mr. Alfredo Francisco Brown, stated that he died
while working on the boat owned by Abraham Yovany Campigotte. Mrs. Paulista went to the
Labor Inspector and in 2004, she and Mr. Campigotte signed an agreement in which the latter
agreed to pay Mrs. Paulista 40,000.00 lempiras. 298 It was recorded that on that day half of
the agreed amount was paid and that the rest would be paid the following day. 299 There is no
information as to whether that payment was made.
Próspero Bendles Marcelino
35. Mrs. Melvia Cristina Guerrero, wife of Mr. Próspero Bendles Marcelino, stated that her
husband died on March 23, 2003, while working as diver on the fishing vessel owned by Victor
Boden. 300 After diving to a great depth, Mr. Bendles felt dizzy and fainted. He was given
oxygen but did not regain consciousness and died that same day. 301 Four days later Mrs.
Guerrero received her husband’s remains. 302 In 2003, she filed a claim for compensation with
the Labor Inspector, stating that the boat owner had only paid her 6,000.00 lempiras for the
funeral expenses of Mr. Bendles. 303 The Ministry of Labor and Social Security determined that
Mrs. Guerrero would be entitled to compensation of 834,154.50 lempiras. 304 Accordingly, a
letter of agreement was signed between Mrs. Guerrero and Mr. Boden for 120,000.00
lempiras, and in that same act Mr. Boden paid Mrs. Guerrero 50,000.00 lempiras and
promised to pay the rest at the end of August that year. 305 There is no information as to
whether this payment was made.
295
Cf. Interview with Edatina Martínez López on August 6, 2012 (merits file, folio 52).
296
Cf. Letter of agreement to pay from Paulina Adalid Hernández to Emiliana Urbina Mena, dated 17 February
297
Cf. Interview with Edatina Martínez López on August 6, 2012 (merits file, folio 52).
298
Cf. Power of Attorney, letter from Hilda Manister Alfred to Leolinda Paulisto Manister of May 4, 2004 (merits
file, folio 52).
299
Cf. Letter of agreement to pay from Abraham Yeovany Campigotte to Leolinda Paulista Manister, dated May
300
Cf. Interview with Melvia Cristina Guerrero Beneth on August 6, 2012 (merits file, folio 53).
301
Cf. Formal claim of Melvia Cristina Guerrero Beneth against Victor Boden dated April 28, 2003 (merits file,
folio 53).
302
Cf. Interview with Melvia Cristina Guerrero Beneth on August 6, 2012 (merits file, folio 53).
303
Cf. Formal labor claim filed by Melvia Cristina Guerrero Beneth against Victor Boden, dated April 28, 2003
304
Cf. Calculation of compensation by the Labor Inspector II for fatal work-related accident, dated April 30, 2003,
305
Cf. Letter of agreement to pay from Victor Kurt Borden M. to Melvia Cristina Guerrero dated May 2, 2003
77
Ramón Allen Ferman
36. Mrs. Elena Ferman Paisano, wife of Mr. Ramón Allen Ferman, stated that her husband
died on December 11, 2002, while working as a diver on the fishing boat owned by Manuel
Pereira Jaylock. 306 The Justice of the Peace for criminal matters stated that Mr. Allen lost his
life after diving to a depth of 35 feet and suffering from decompression syndrome. 307 Mrs.
Ferman went to the Labor Inspector and in 2004 she and Mr. Pereira signed an agreement in
which he promised to pay Mrs. Ferman 144,000.00 lempiras. The record shows that 24,000.00
lempiras was paid on that day, and that the rest would be paid as funeral expenses. 308There
is no information as to whether this payment was made.
Roger Gómez Alfred
37. Mr. Especel Bradle Valeriano, brother-in-law of Mr. Roger Gómez Alfred, stated that
the alleged victim died on December 10, 2002, as a consequence of his work as a diver on
the fishing boat owned by Abraham Geovanny Compegoth. After diving to a great depth, Mr.
Gómez felt very sick. 309 His body was paralyzed after the incident. 310 The following day, Mr.
Gómez was taken to the hospital in Puerto Lempira, but that hospital did not have a hyperbaric
chamber, so after almost two weeks of being hospitalized there, he died on December 27,
2002. 311 In 2003, Mr. Bradle, on behalf of Mrs. Velásquez, filed a claim for compensation
before the Labor Inspector. Mr. Compegoth paid only 20,000.00 lempiras to cover half of the
funeral expenses for the burial of Mr. Gómez, 312 and in 2003 Mrs. Velásquez and Mr.
Compegoth signed a payment agreement for 120,500.00 lempiras. 313 Mrs. Velásquez argued
that the amount was insufficient and that the boat owner had also deducted the amount paid
for funeral expenses. 314 At the time of signing the agreement, Mr. Compegoth agreed to pay
20,000.00 lempiras, and promised that the rest would be paid over the following five
months. 315 However, in 2014, Mrs. Velásquez stated that she never received said payment. 316
Carlos Castellón Cárdenas
38. Mr. Carlos Castellón Cárdenas suffered an accident in 2000 while working as a diver
306
Cf. Letter of agreement to pay from Victor Manuel Pereira H. to Elena Felman Paisano dated January 27, 2003
307
Cf. Certificate dated December 16, 2002, Justice of the Peace for criminal matters (merits file, folio 53).
308
Cf. Letter of agreement to pay from Victor Manuel Pereira H. to Elena Felman Paisano dated January 27, 2003
309
Cf. Record of appearance of Especel Bradle Valeriano at hearing related to fatal accident, dated March 18,
310
Cf. Interview with Vilma Greham Velázquez dated October 15, 2014 (merits file, folio 54).
311
Cf. Record of appearance of Especel Bradle Valeriano at hearing related to fatal accident, of March 18, 2003
312
Cf. Record of appearance of Especel Bradle Valeriano at hearing related to fatal accident, of March 18, 2003
313
Cf. Letter of agreement to pay from Abraham Geovanny Compegoth to Vilma Greham Velásquez, dated April
314
315
Cf. Letter of agreement to pay from Abraham Geovanny Compegoth to Vilma Greham Velásquez, dated April
316
78
on the fishing boat owned by Basima Hilsaca. 317 Mr. Castellón dived to a great depth, was
taken to the hyperbaric chamber 318 and was diagnosed with decompression sickness in
September of the same year. 319 He filed a claim for compensation before the Occupational
Health and Hygiene Office. In 2001, the Ministry of Labor and Social Security determined that,
based on the medical opinion, 320 Mr. Castellón was entitled to a compensation of 227,850.00
lempiras. 321 On February 15, 2001, a payment agreement was signed between Mr. Castellón
and Mrs. Hilsaca, in which she agreed to pay him 40,000.00 lempiras; it is recorded that she
gave Mr. Castellón the sum of 3,000.00 lempiras, indicating that the rest would be paid in
March and August of the same year. 322 In view of the lack of payment, Mr. Castellón filed a
labor lawsuit for the payment of compensation for occupational illness. 323 Mrs. Hilsaca was
ordered to pay 37,000.00 lempiras, but she did not comply with this ruling. 324 Mr. Castellón
died in 2002. His son stated that after the accident Mr. Castellón could not walk properly and
consequently could not work, and that he did not receive medical care. 325
Timoteo Salazar Zelaya
39. According to a report from the Office of Labor and Social Security, Mr. Timoteo Salazar
Zelaya had a fatal accident in 2002 while working as a diver on the fishing boat owned by
Omar Phillips. According to the report, a settlement was reached between the owner of the
vessel and Mr. Salazar’s family for 100,000 lempiras, but his relatives stated in 2003 that
they did not receive any money. 326
317
Cf. Ordinary labor lawsuit filed by Carlos Castellón Cárdenas against Basima Hilsaca on November 20, 2001
318
Cf. Interview with Masiel Allen dated October 15, 2014 (merits file, folio 54).
319
Cf. Ordinary labor lawsuit filed by Carlos Castellón Cárdenas against Basima Hilsaca on November 20, 2001
320
Cf. Medical report on Carlos Castellón Cárdenas from Occupational Health Services, dated October 5, 2001
321
Cf. Calculation of compensation for occupational illness by the Labor Inspector, dated October 15, 2001,
322
Cf. Letter of agreement to pay from Basima Hilsaca to Carlos Castellón Cárdenas, dated February 15, 2001
323
Cf. Ordinary labor lawsuit of Carlos Castellón Cárdenas against Basima Hilsaca of November 20, 2001 (merits
file, folio 55).
324
Cf. Hearing of May 24, 2002 (merits file, folio 55).
325
Cf. Interview with Dany Castellón Masier on August 6, 2012 (merits file, folio 55).
326
Cf. Report on injured divers, from January 2002 to May 26, 2004. Addressed to Attorney Carlos Remberto
Zalavarría Reconco, legal representative of the Asociación de Miskitos Hondureños Buzos Lisiados del Rio Plátano"
signed by C. Santos Elpidio Cadenas, of the Regional Office of La Ceiba, with partially illegible seal, apparently from
the Health and Safety Inspectorate of the General Directorate of Welfare of the Ministry of Labor and Social Security
Office (merits file, folio 55).
79
80
CONCURRING OPINION OF
JUDGE L. PATRICIO PAZMIÑO FREIRE
1. In this opinion I wish to express my agreement with the decision of the majority
regarding the endorsement of the friendly settlement agreement signed between the victims
and the State of Honduras. As an Inter-American judge, I am very pleased that an agreement
has been reached that recognizes the reparation interests of the victims in this case. The task
now facing the Court is to monitor compliance with this judgment in accordance with the
terms under which the reparations were adopted. Without wishing to delve further into this
point - since the challenges and opportunities for the implementation of the judgment can be
addressed later when the Court examines the matter - I am particularly interested in
reinforcing the decision based on an analysis of the subject matter of this case. Accordingly,
I will review the evolution of the issue of business and human rights and the need to
reformulate the rules of attribution of international responsibility; I will then address public
policies and the role of reparation mechanisms for cases involving private companies and
human rights.
a) Evolution of the issue of business and human rights and the rules of
attribution of responsibility
2. I should begin my analysis by pointing out that this is not the first case before the Court
involving private companies that have engaged in actions or omissions which resulted in
human rights violations. In several cases, which now comprise a substantial part of the Court’s
constant case law on the rights of indigenous and tribal peoples, in relation to extractive
industries and communal property rights, the State’s tolerance, collaboration or omissions
have resulted in human rights violations committed by companies. For example, in the case
of Sarayaku v. Ecuador, oil exploration contracts, together with prospecting and exploration
activities, led to internationally wrongful acts. Some of these actions were carried out by the
State at the time of granting concessions or contracts; but others predominantly, and even
exclusively, involved the participation of private companies, such as the implementation of
prospecting and exploration activities. 1 This case highlights a problem that has been repeated
in different cases before the Court, such as Kaliña Lokono v. Suriname 2 or even the recent
case of Lhaka Honat v. Argentina, 3 where the boundaries between the responsibility of the
State and that of private corporations converge and reinforce each other in the form of
feedback that generates human rights violations. It is appropriate to ask whether the rules of
attribution of international responsibility, as traditionally established, whereby responsibility
is primarily attributed to the State, should remain unchanged. These cases - and those yet to
come - have an essential peculiarity, which is the fact that private companies operating with
interests in various countries, have activities in different States and are generally incorporated
in multiple and diverse jurisdictions. These companies have become true global players. The
question arises as to whether international law as it is currently configured, heir to the
1
Case of the Kichwa Indigenous people of Sarayaku v. Ecuador. Merits and reparations. Judgment of June 27, 2012.
Series C No. 245
2
Case of the Kaliña and Lokono Peoples v. Suriname. Merits, reparations and costs. Judgment of November 25,
2015. Series C No. 309
3
Case of Indigenous communities Members of the Lhaka Honhat Association (Nuestra Tierra) v. Argentina. Merits,
reparations and costs. Judgment of February 6, 2020. Series C No. 400
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
my observations regarding Advisory Opinion 27/21 on ‘‘Rights to freedom to organize,
collective bargaining, and strike, and their relation to other rights, with a gender perspective:’’
The emergence of the new technologies and services reveals unprecedented obligations and
challenges for States and for their legislative and judicial functions to adapt their constitutional
and legal systems, as well as to reformulate their practices in the face of the new conditions of
the labor market, particularly with respect to the changes brought about by the irruption of new
technologies. Undoubtedly, work through the new technologies – such as the digital platforms
that underpin communications and transportation services, the online purchase and sale of food
and goods in general- may represent advantages in terms of access to diversified and innovative
sources of employment, but at the same time, it implies a series of modifications to traditional
labor relations in terms of time, schedules, modalities of remuneration and union association
and, in some cases, the use of new knowledge and technological skills not known a short time
ago. However, this unprecedented and diverse employment model also entails major risks for
the enjoyment of labor rights, especially if we consider that Latin America and the Caribbean
have high unemployment rates. This leads people to adopt and submit - not voluntarily - to
precarious forms of employment, and relationships between workers and employers with
unfamiliar forms or as yet undefined contours in terms of their legal and jurisdictional
guarantees. These issues must be addressed immediately and with concern, if we truly hope to
address the claims of thousands of new workers in these very new circumstances, especially if
we seriously consider that in 2020 the region had an unemployment rate of 10.6% according to
data from the International Labor Organization. This means that more than 30 million people
were jobless,7 without taking into account the updated figures on the loss of employment
sources, the tremendous deregulation of labor, structural adjustment policies, and the uncertain,
if not poorly managed and unresolved, health crisis of COVID -19 and its devastating effects on
the economies, families and individuals of our continent. 8
5. Having reflected on what the future holds and whether our legal institutions as they are
traditionally conceived can really address this type of problem, I would now like to consider
whether the principle of attribution of responsibility in Public International Law can remain
untouched, set in stone. The Western world attributes the ‘‘awakening’’ of humanity and the
ensuing creation of an international system of protection of human rights to the consequences
of the world wars. I believe that this vision is somewhat limited, since humanity and especially
the native peoples and social movements of Latin America have long been advocating not
only for the internationalization, but also for the guarantee of social and economic rights.
Nevertheless, the traditional Western image of the Second World War as a turning point is
helpful to show it is possible to transform the international system. With this transformation,
the idea that only states were the international actors fell away, and the individual came to
be seen as the consignee or beneficiary of international norms and the subject of rights.
However, this vision still does not include other actors that today wield as much or more
power than many States: transnational corporations. Thus, the classical theory of human
rights does not accept any link other than that between the individual and the State. In other
words, since the very emergence of the State as a major actor in international society, the
protection of fundamental human rights has traditionally been applicable to its sphere of
responsibility. Consequently, in modern society, States are involved in both the protection
and the violation of human rights. We see from the examples cited above that this is not
entirely consistent with reality. 9 The judgment in this case, the most recent development of
7
International Labour Organization. 2020 Labor Outlook. Latin America and the Caribbean, 2019, page 6.
8
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, of Articles 3, 6, 7 and 8 of the Protocol of San Salvador, of Articles 2, 3, 4,
5 and 6 of the Convention of Belem do Pará, of Articles 34, 44 and 45 of the Charter of the Organization of American
States, and of 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.
9
There are those who consider that transnational corporations entail ‘‘a drastically different level of work’’ and
therefore require a new body of law which they call ‘‘transnational law.’’ However, the discussion here is rather
the Guiding Principles on Business and Human Rights, 10 sets out the obligations that should
guide States in guaranteeing human rights. It also emphasizes the fact that private companies
must respect those rights. Undoubtedly, both are irrevocable truths. However, I leave for
reflection the question of whether we are facing a process in which companies can also be
recognized as responsible for human rights violations. That is to say, not only or exclusively
the States in their relationship with corporations, but in addition the corporations per se as
actors of international law.
b) Public policies and the role of reparation mechanisms for cases involving
business and human rights
6. The issue of the international responsibility of corporations is closely linked to the

consequences of the violation, in the understanding that it is a principle of international law
that, in the event of a violation, reparations must be made. 11 A simple and realistic
interpretation would lead us to think that, if the company was the one that caused the
damage, it should also be the one to make reparations. It seems that the Court has already
taken an initial step in the case of the Kaliña and Lokono Peoples v. Suriname, in which it
determined that the State should, in conjunction with the mining companies, implement
sufficient and necessary actions to rehabilitate the affected area. 12 Clearly, in this case, the
“ownership” of the reparation measure was shared with a company.
7. In the case sub judice, the Court adopted various measures of reparation that were
endorsed in the agreement between the parties. Particularly important are the measures
related to public policies aimed at social protection and the productive diversification of the
local economy. However, it would have been interesting – though clearly beyond our role
bearing in mind that this was a mutual agreement between the parties- to have a reparation
measure that mandated the participation of corporations in the tasks of assistance, mitigation
or even in the social development projects proposed as reparations.
8. The issue of business and human rights is one of the greatest challenges in the inter-
American public order. Taking into account the context of Central America, the Caribbean and
South America, where social inequality, high levels of migration, unemployment and
informality converge, it is essential that the international system, especially the courts and
tribunals, rise to this challenge. At the same time, the new technologies pose major challenges
that must be addressed firmly and from a progressive and integrated human rights
perspective; an endeavor and a challenge that we bequeath to the future new composition of
the Court.
whether international human rights law should apply to this reality to its full extent. Y. M. Kolosov & E. S.
Krivchikova: Mejdunarodno pravo [International Law], Uchebnik. Mejdunarodni otnosheniya, Moscow, 2000, p. 86
10
Office of the United Nations High Commissioner for Human Rights (OHCHR). Guiding Principles on businesses and
human rights: implementing the United Nations “Protect, respect, Remedy” Framework, HR/PUB/11/04, 2011
11
Article 63(1) of the American Convention on Human Rights grants the Inter-American Court the power to order
that the victim be guaranteed the right violated, as well as to order measures of reparation that include both
compensation and other additional measures. For the Court, every violation of an international obligation that implies
harm entails reparation.
12
Case of the Kaliña and Lokono Peoples v. Suriname. Merits, reparations and costs. Judgment of November 25,
2015. Series C No. 309
L. Patricio Pazmiño Freire
Vice President

Secretary
CONCURRING OPINION OF JUDGE EDUARDO VIO GROSSI,
INTER-AMERICAN COURT OF HUMAN RIGHTS,

CASE OF THE MISKITO DIVERS (LEMOTH MORRIS ET AL.) V. HONDURAS,
JUDGMENT OF AUGUST 31, 2021.
I issue this concurring opinion for the purpose of recording that I have voted in favor of
the abovementioned judgment in view of the fact that the respondent State in this case
has, through the Friendly Settlement Agreement signed with the representatives of the
victims, acknowledged the application, in their respect and in this case, of Article 26 of
the American Convention on Human Rights. 1
Thus, with the proviso stated above, I reiterate my position that the rights referred to in
Article 26 are not justiciable before the Inter-American Court of Human Rights. 2 Likewise,
I consider that the aforementioned acknowledgement of the respondent State in this case
cannot constitute jurisprudence or precedent applicable to other States in other cases,
unless they proceed in a similar manner.
Eduardo Vio Grossi

Judge

Secretary
1
Para. N° 13 of the Judgment.
2
Partially Dissenting Opinion of Judge Eduardo Vio Grossi, Inter-American Court of Human Rights, Case of
Guachalá Chimbo et al. v. Ecuador, Judgment of March 26, 2021 (Merits, reparations and costs); Dissenting
Opinion of Judge Eduardo Vio Grossi, Inter-American Court of Human Rights, Case of Casa Nina v. Peru,
Judgment of November 24, 2020, (Preliminary objections, merits, reparations and costs); Partially Dissenting
Opinion of Judge Eduardo Vio Grossi, Inter-American Court of Human Rights, Case of the Workers of the
Fireworks Factory in Santo Antonio de Jesús and their Families v. Brazil, Judgment of July 15, 2020,
(Preliminary objections, merits, reparations and costs); Dissenting Opinion of Judge Eduardo Vio Grossi, Case
of Indigenous Communities Members of the Lhaka Honhat (Nuestra Tierra) Association v. Argentina. Merits,
reparations and costs. Judgment of February 6, 2020; Partially Dissenting Opinion of Judge Eduardo Vio
Grossi, Judgment of November 22, 2019, Inter-American Court of Human Rights, Case of Hernández v.
Argentina. Preliminary objection, merits, reparations and costs; Partially Dissenting Opinion of Judge Eduardo
Vio Grossi, Inter-American Court of Human Rights, Case of Muelle Flores v. Peru, Judgment of March 6,
2019(Preliminary objections, merits, reparations and costs); Partially Dissenting Opinion of Judge Eduardo
Vio Grossi, Inter-American Court of Human Rights, Case of San Miguel Sosa et al, v,. Venezuela, Judgment
of February 8, 2018 (Merits, reparations and costs); Partially Dissenting Opinion of Judge Eduardo Vio Grossi,
Inter-American Court of Human Rights, Case of Lagos del Campo v. Peru, Judgment of August 31, 2017,
(Preliminary objections, merits, reparations and costs), and Individual Opinion of Judge Eduardo Vio Grossi,
Inter-American Court of Human Rights, Case of the Dismissed Employees of Petroperú et al. v. Peru, Judgment
of November 23, 2017 (Preliminary objections, merits, reparations and costs).
CONCURRING OPINION OF
JUDGE HUMBERTO ANTONIO SIERRA PORTO
INTER-AMERICAN COURT OF HUMAN RIGHTS

(Merits, reparations and costs)
1. With my customary respect for the decisions of the Inter-American Court of Human Rights
(hereinafter “the Inter-American Court” or “the Court”), I submit this concurring opinion in order
to explain some discrepancies with regard to the analysis of the merits made by the Court, together
with the endorsement of the friendly settlement agreement reached between the victims in this
case and the State of Honduras (hereinafter “the State” or Honduras), based on which the
international responsibility of the State was declared for the violation of the rights to life, to life
with dignity, to personal integrity, to judicial guarantees, to the rights of the child, to equal
protection of the law, to judicial protection, to health, to work in just, equitable and satisfactory
conditions, to social security, and to equality and non-discrimination to the detriment of the 42
victims in this case named in Annex 1 of the judgment. This opinion complements the position
already expressed in my partially dissenting opinions in the cases of Lagos del Campo v. Peru, 1
Dismissed Employees of Petroperú et al. v. Peru, 2 San Miguel Sosa et al. v. Venezuela, 3 Cuscul
Pivaral et al. v. Guatemala, 4 Muelle Flores v. Peru, 5 National Association of Discharged and Retired
Employees of the National Tax Administration Superintendence (ANCEJUB-SUNAT) v. Peru, 6
Hernández v. Argentina, 7 Indigenous Communities Members of the Lhaka Honhat (Nuestra Tierra)
Association v. Argentina, 8 Workers of the Fireworks Factory in Santo Antônio de Jesus and their
1
Cf. Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of August 31,
2017. Series C No. 340. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
2
Cf. Case of the Dismissed Employees of Petroperú et al. v. Peru. Preliminary objections, merits, reparations and
costs. Judgment of 23 November 2017. Series C No. 344. Partially dissenting opinion of Judge Humberto Antonio Sierra
Porto.
3
Cf. Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of February 8, 2018. Series
C No. 348. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
4
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of
August 23, 2018. Series C No. 359. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
5
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6, 2019.
Series C No. 375. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
6
Cf. Case of the National Association of Discharged and Retired Employees of the National Tax Administration
Superintendence (ANCEJUB-SUNAT) v. Peru. Preliminary objections, merits, reparations and costs. Judgment of November
21, 2019. Series C No. 394. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
7
Cf. Case of Hernández v. Argentina. Preliminary objection, merits, reparations and costs. Judgment of November 22,
2019. Series C No. 395. Partially dissenting opinion of Judge Humberto Antonio Sierra Porto.
8
Cf. Case of the Indigenous Communities Members of the Lhaka Honhat (Nuestra Tierra) Association v Argentina.
Merits, reparations and costs. Judgment of February 6, 2020. Series C No. 400. Partially dissenting opinion of Judge
Humberto Antonio Sierra Porto.
Families v. Brazil 9 and Guachalá Chimbo v. Ecuador; 10 as well as in my concurring opinions in the
cases of Gonzales Lluy et al. v. Ecuador, 11 Poblete Vilches et al. v. Chile 12 and Casa Nina v. Peru 13
in relation to the justiciability of Article 26 of the American Convention on Human Rights
(hereinafter “the American Convention” or “the Convention)”.
2. For this purpose, I will reiterate my position regarding the problems of interpretation and
legal basis of the theory of justiciability of Article 26 of the American Convention, in particular,
those arising from this judgment due to the lack of differentiation between the obligations of
immediate enforceability and those of progressive development.
I. THE JUSTICIABILITY OF ARTICLE 26 OF THE AMERICAN CONVENTION:

OBLIGATIONS OF IMMEDIATE ENFORCEABILITY AND PROGRESSIVE
DEVELOPMENT
3. In previous separate opinions I have set forth in detail multiple arguments that demonstrate
the logical and legal contradictions and inconsistencies in the theory of the direct and autonomous
justiciability of economic, social, cultural and environmental rights (hereinafter “ESCER”) through
Article 26 of the American Convention. Indeed, the position assumed by the Court since the case
of Lagos del Campo v. Peru, ignores the wording of the American Convention, a treaty that grants
jurisdiction to the Court; it ignores the rules of interpretation of the Vienna Convention on the Law
of Treaties; 14 it modifies the nature of the obligation of progressive development enshrined in Article
26; 15 it ignores the will of the States embodied in Article 19 of the Protocol of San Salvador; 16 and
it undermines the legitimacy of the Court in the regional sphere, 17 just to mention some arguments.
4. On this occasion, I do not intend to delve into the aforementioned point, but rather to
highlight the inaccuracies which, in my opinion, affect the decision in relation to the scope and
content of the obligations of immediate enforceability and progressive development, derived from
Article 26 of the Convention. As the Court has already established in its case law, the recognition
of ESCER generates obligations of a different nature for the States: on the one hand, obligations
that are immediately enforceable, by virtue of which effective measures must be implemented to
guarantee access without discrimination to the benefits of ESCER and, on the other hand, those of
9
Cf. Case of the Workers of the Fireworks Factory in Santo Antônio of Jesus and their Families v. Brazil. Preliminary
objections, merits, reparations and costs. Judgment of July 15, 2020. Series C No. 407. Partially dissenting opinion of Judge
Humberto Antonio Sierra Porto.
10
Cf. Case of Guachalá Chimbo et al. v. Ecuador. Merits, reparations and costs. Judgment of March 26, 2021. Series C
No. 423. Partially Dissenting Opinion of Judge Humberto Antonio Sierra Porto.
11
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of
September 1, 2015. Series C No. 298. Concurring Opinion of Judge Humberto Antonio Sierra Porto.
12
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C No.
349. Concurring Opinion of Judge Humberto Antonio Sierra Porto.
13
Cf. Case of Casa Nina v. Peru. Preliminary objections, merits, reparations and costs. Judgment of November 24,
2020. Series C No. 419. Partially Dissenting Opinion of Judge Humberto Antonio Sierra Porto.
14
Series C No. 375.
15
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of
August 23, 2018. Series C No. 359.
16
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C No.
349.
17
Cf. Case of the Dismissed Employees of Petroperú et al. v. Peru. Preliminary objections, merits, reparations and
costs. Judgment of November 23, 2017. Series C No. 344.
progressive development, which require States to advance as efficiently and expeditiously as
possible towards the full realization of those rights. 18 Aside from my deliberations on the regulatory
content derived from Article 26, which I believe is limited to the obligation of progressivity, I find it
highly problematic that many of the benefits derived from ESCER are consolidated through
jurisprudence as immediately enforceable obligations.
5. In the judgment, prior to the analysis of the violations of Article 26 of the Convention, the
Court points out that in this specific case it is exclusively appropriate to study the violation of the
obligations of immediate enforceability with respect to the right to work in just, equitable and
satisfactory conditions that ensure the safety, health and hygiene of the worker, with health and
social security, which does not prevent the development of standards in this area. However, in
elaborating on this aspect of the decision, the Court reiterates its case law on the aforementioned
rights without making any distinction between the obligations of immediate enforceability and those
of progressive development, and without specifying the criterion that differentiates one from the
other from the point of view of their content.
6. That said, it could be argued that the immediately enforceable obligations referred to in the
decision are those associated with the regulation, supervision and oversight of a dangerous activity
carried out by individuals - which is how I believe it should be understood- either in terms of the
right to work (occupational risks) or social security (labor contracting modalities). Otherwise, the
central element of the notion of progressive development obligations, associated with the fact that
the benefits derived from ESCER must be guaranteed to the extent of the resources available in
each of the member States of the Convention, becomes blurred. In the judgment, the Court
identifies as obligations derived from the right to health the provision of specific services for the
treatment of certain conditions or the implementation of care centers with particular facilities in a
specific region. 19 Although these elements are absolutely reasonable in light of the circumstances
of this case, it would be wrong to conclude that the materialization of these benefits should be
considered as an obligation of immediate enforceability derived from the ESCER.
7. All of the above without mentioning that the analysis carried out in relation to the right to
life could have subsumed, by way of connection, precisely those contents that can be considered
immediately enforceable, all reiterated with the same elements when analyzing the violation of the
right to work in just, equitable and satisfactory conditions that ensure the safety, health and hygiene
of the worker, as well as health and social security. 20
Humberto Antonio Sierra Porto

Judge

Secretary
18
Series C No. 375, para 190, and Advisory Opinion OC-27/21, supra, para. 147.
19
Cf. Case of the Miskito Divers (Lemonth Morris et al.) v. Honduras. Merits, reparations and costs. Judgment of August
31, 2021. Paras. 95-96.
20
Cf. Case of the Miskito Divers (Lemonth Morris et al.) v. Honduras. Merits, reparations and costs. Judgment of August
31, 2021. Paras. 78.

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INTER-AMERICAN COURT OF HUMAN RIGHTS

CASE OF THE MISKITO DIVERS (LEMOTH MORRIS ET AL.) V. HONDURAS

JUDGMENT OF AUGUST 31, 2021

In the Case of the Miskito divers (Lemoth Morris et al.) v. Honduras,

Elizabeth Odio Benito, President;

Pablo Saavedra Alessandri, Secretary, and

I. INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE ..................................... 4

a. Petition. On November 5, 2004, the Commission received a petition lodged by the

b. Admissibility Report. On November 12, 2009, the Commission adopted Admissibility

4. Requests of the Inter-American Commission. The Commission asked the Court to

A. Friendly settlement agreement

B. Observations of the representatives

C. Observations of the Commission

D. Considerations of the Court

A. The Miskito indigenous people in the department of Gracias a Dios

B. Underwater fishing by Miskito divers: working conditions, their effects and

According to the information received, there are no mechanisms to supervise the

C. The situation of the victims

A. Preliminary consideration: corporate responsibility with respect to human rights

II. The corporate responsibility to respect human rights

 The responsibility of business enterprises to respect human rights refers to

 The responsibility to respect human rights requires that business enterprises:

b) Seek to prevent or mitigate adverse human rights impacts that are

 The responsibility of business enterprises to respect human rights applies to

 In order to meet their responsibility to respect human rights, business

a) A policy commitment to meet their responsibility to respect human

b) A human rights due diligence process to identify, prevent, mitigate

c) Processes to enable the remediation of any adverse human rights

III. Access to remedy

 As part of their duty to protect against business-related human rights abuse,

C.3. Right to health and social security

C.3.2. The content of the right to social security

Everyone affected by a diminution of his physical or mental capacities is entitled to

C.4. Equality and non-discrimination

A. Measures of restitution and satisfaction

A.1. Comprehensive and specialized medical and psychological care for

A.3. Program of productive projects

A.4. Housing for the divers and their families

A.5. Production and broadcasting of a television documentary

A.6. Public act of acknowledgment of international responsibility, apology and

B.1. Non-pecuniary damage

B.2. Pecuniary damage

B.3. Payment of costs and expenses

C.2. Measures to ensure the adequate regulation, control and supervision of

The State undertakes to conduct a comprehensive analysis to identify the structural

C.2.4. Safe Fishing Certification Program

140. Accordingly, the State agreed to the following:

C.3.2. Strengthening hyperbaric medical services in La Mosquitia

Once the corresponding modifications have been made, it undertakes to disseminate

C.4. Awareness and sensitization campaign

147. In that regard, the State agreed to the following:

C.7. Adoption of structural measures to ensure access to justice

C.8. Strengthening the education system in La Mosquitia

Consequently, the State is committed to providing free education in La Mosquitia, in

C.9. Adoption of measures to ensure the accessibility of all public institutions in La

D. Method of compliance with the payments ordered

E. Monitoring compliance with the Agreement

2. To accept the acknowledgment of international responsibility made by the State in said

5. This judgment of endorsement constitutes, per se, a form of reparation.