In the Fireworks Factory case, Brazil was ordered to design and execute a socioeconomic development program for the population of Santo Antônio de Jesus within two years of notification of the judgment (para. 289). The program’s focus should be to enable the town’s inhabitants to pursue other—and hopefully less precarious—professional occupations. With this in mind, the IACtHR indicated a series of measures this program should include, such as vocational training courses and actions to reduce school drop-out.
This kind of reparatory measure evidently touches on the content of socioeconomic rights such as the rights to work, an adequate standard of living, and education. Despite having mentioned Articles 1(1) and 26 in its conclusion, as seen above, the reasoning behind the IACtHR’s findings was centered on Article 24 as a right to material equality, without considering its practical relation to progressive obligations arising from the right to work. Consequently, the IACtHR ended up not addressing questions of progressive realization and available resources.
These questions are particularly acute in this case, as it is difficult to see improving access to more varied labor markets as an obligation of immediate effect. General Comment No 18 of the Committee on Economic, Social, and Cultural Rights (CESCR) indicates that states have a minimum core obligation to ensure:
“access to employment, especially for disadvantaged and marginalized individuals and groups, permitting them to live a life of dignity” (para. 31).
It would seem this minimum obligation was partially met in the case: the population had access to employment, even if in limited areas; what was left for the state was to ensure that this employment reaches minimum standards of safety so the individuals could live “a life of dignity“, which the IACtHR addressed in another part of the judgment (paras. 173-176). Enlarging this access to other employment opportunities appears to fall within the progressive realization realm.
The IACtHR’s exclusive focus on Article 24 when dictating the reparations. Such an approach not only creates the risk of imposing significant burdens on states 99 acres database without verifying whether they are in a position to accept such burdens, in terms of available resources, but also of leading to a backlash against the implementation of the IACtHR’s judgments (as it has happened regarding other matters decided by the Court).
The IACtHR’s lack of engagement with these concerns may also lead one to question the appropriateness of the reparation. One could inquire whether Brazil should not prioritize the use of its resources to achieve obligations of immediate effect in the realization of socioeconomic rights, both in the region and elsewhere, rather than engaging in a program aimed at the progressive development of the right to work. Or whether different measures of progressive realization should be taken in a program encompassing other towns in the region whose populations live in similar conditions.
Moreover, it is not clear whether considerations of available resources will play a role in evaluating whether the state complied with the reparation order and to what extent. Although the IACtHR indicated some parameters the socioeconomic program should follow, the Court must still assess whether they were adequately implemented, especially since, as noted in the judgment, previous governmental programs failed to produce any significant changes in the population’s lives. Knowing the IACtHR’s tendency to scrutinize states’ conduct regarding human rights, deference to domestic authorities’ assessments should not be expected. Should the IACtHR take into account limitations in the state’s resources, there is still the question of whether the Court will refer to the standard of reasonableness adopted by the CESCR in its complaints mechanism or advance a new standard entirely.