20 Regional human rights system in the Americas- I

Prof. Nitin Gomber

Introduction

In the Americas, the regional human rights arrangements exist within the intergovernmental organisation known as the Organisation of American States (OAS). The OAS was established in order to achieve among its member states ñ as stipulated in Article 1 of the Charter ñ ìan order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence.î Two organs of the OAS that are central to the enforcement of its human rights regime are: the Inter-American Commission on Human Rights (IACHR) and the specialized organization known as Inter-American Court of Human Rights (IACtHR). The OAS Charter established the IACHR way back in 1959, whereas the IACtHR was established much later in 1979, after the American Convention on Human Rights entered into force.

American Convention on Human Rights

The American Convention on Human Rights (ACHR) is divided into three parts. Part I deals with all the rights that are protected under the Convention and all that the State is obligated to do. Part II lists out provisions that govern the setting up and functioning of both IACHR and IACtHR. Finally, Part III deals with General and Transitory Provisions which are not covered elsewhere in the Convention. You may refer to this convention for a detailed understanding of the provisions.

It must also be noted that the IACHR is competent to examine petitions in which violations are alleged based on any of the inter-American human rights treaties. Some of these are: (a) Inter-American Convention to Prevent and Punish Torture, 1985, (b) Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, (c) Inter-American Convention on Forced Disappearance of Persons, 1994, (d) Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, 1999. In this regard, it is pertinent to note that not all Member States of the OAS have ratified all the treaties. Before approaching a problem question, you must first double-check if the accused Member State has in fact ratified the treaty in question.

Inter-American Commission on Human Rights

The inter-American human rights system was born with the adoption of the American Declaration of the Rights and Duties of Man in 1948, predating the Universal Declaration of Human Rights by more than six months. The IACHR is a principal and autonomous organ of the OAS whose mandate stems from the Charter of the OAS. The Commission is made up of seven members, independent experts on human rights who do not represent any country and are elected by the General Assembly of OAS.

The IACHR was created in 1959 and held its first session in 1960. In fact, by 1961, the IACHR had begun to carry out on-site visits to observe the general human rights situation in member states. Thereafter, by 1965, the IACHR was expressly authorized to examine complaints or petitions regarding specific cases of human rights violations. In fact, the IACtHR was created only with the coming into force of the latest American Convention on Human Rights (the provisions of which have been summarized above) and until that time, IACHR was the sole protector of human rights in the Americas.

Today, the Commissionís function is to promote the observance and defence of human rights in the Americas and it acts as a first line of defence for the victims of human rights violations. The Commission performs this function by making visits to the countries, carrying out thematic activities and initiatives, preparing reports on the human rights situation in a certain country or on a particular thematic issue, adopting precautionary measures or requesting provisional measures before the Inter-American Court, and processing and analyzing individual petitions with a view to determining the international responsibility of States for human rights violations, and issuing the recommendations it deems necessary.

The individual petition system, by way of which any person, group of persons, or organization may file a petition alleging a violation of human rights against one or more Member States of the OAS, is the single most important resource available to the people living in the Americas. Once the victim files his/her petition with the Commission, the Commission preliminarily evaluates it and makes a decision to either request additional information or open the petition for processing. Thereafter, at the admissibility stage the petition is sent to the respective State for its observations on the matter at hand. On receiving the Stateís observations, the Commission decides on whether the petition is admissible in fact. If found admissible, the Commission then goes on to analyze the partiesí allegations and the evidence submitted along with it. Thereafter, if the Commission finds the State responsible for human rights violations, it issues a report on the merits that includes recommendations to the State that are aimed at: (a) bringing a halt to the acts that are in violation of human rights, (b) clarifying the facts, carrying out an official investigation, and imposing a sanction, (c)  making reparation for the harm caused, (d) making changes to the law, (e) requiring the adoption of other measures or actions by the State.

However, it must be noted that before a petition is filed with the IACHR, the following requirements must have been met: (a) all remedies under domestic law must have been pursued and exhausted in accordance with generally recognized principles of international law, (b) the petition must have been lodged within a period of six months from the date on which the party alleging violation of his rights was notified of the final judgment, (c) the subject of the petition must not be pending in any other international proceeding, (d) the petition must contain the name, nationality, profession, domicile and signature of the person or persons or of the legal representative of the entity lodging the petition. In this regard, it is also pertinent to note that foregoing provisions (a) and (b) will not be applicable when either the domestic legislation of the state concerned does not afford due process of law for the protection of the right allegedly violated or the party alleging violation has been denied access to the remedies under domestic law or has been prevented from exhausting them.

It is also pertinent to note that in certain serious and urgent situations, and provided that certain requirements are met, the Commission may adopt precautionary measures. Furthermore, in addition to precautionary measures, there is a mechanism established in Article XIV of the Inter-American Convention on Forced Disappearance of Persons, which the Commission can use in cases of alleged forced disappearances with respect to the States that have ratified the said treaty.

Now, there is a possibility that the State decides to not comply with the recommendations of the Commission. It is this scenario, where the Commission decides to either publish the case or refer the matter to the IACtHR if it considers appropriate. The functioning of the Court is discussed in the next segment, below.

Inter-American Court of Human Rights

IACtHR is also an autonomous judicial organ of the OAS whose mandate stems from the American Convention. The Court is headquartered in the city of San JosÈ, Costa Rica, and is made up of seven judges elected in their personal capacity who are from the OAS Member States. The objective of the Court is to interpret and apply the American Convention and other inter-American human rights treaties, in particular by issuing judgments on cases and consultative opinions.

It is pertinent to note, however, that only the States parties to the American Convention who have accepted the Courtís contentious jurisdiction and the Commission may submit a case to the Court. Individuals do not have direct recourse to the Inter-American Court; they must first submit their petition to the Commission and go through the procedure for cases before the Commission. It is also important to note that the Commission may, when the conditions are met, refer cases to the IACtHR only with respect to those States that have ratified the American Convention and have previously recognized the contentious jurisdiction of the Court, unless a State accepts jurisdiction expressly for a specific case.

If the Court finds that there has been a violation of a right or freedom protected, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation is paid to the injured party. Also, in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court has the power to adopt such provisional measures as it deems pertinent in the matters it has under consideration.

It must also be noted down that Member States of the OAS may consult the Court regarding the interpretation of Conventions / Treaties in the Americas. The Court, accordingly, may provide that State with opinions regarding the compatibility of any of its domestic laws with the aforesaid international instruments.

Landmark judgments of the IACtHR

The IACtHR has been an active defender of human rights in the Americas and in fact it has had an impact the world over for its innovative approach to human rights. In about one-half of the rulings it has issued since it began its work, the IACtHR has issued orders that require action by national courts. It also has increasingly taken on a role of reviewing whether national practices of judicial independence and due process comply with the American Convention on Human Rights. Therefore, any discussion on the sources of international human rights is incomplete without taking a look at some of its judgments.

Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (August 31, 2001)

The IACHR presented this case for the Court to decide whether the State of Nicargua violated Articles 1 (Obligation to Respect Rights), 2 (Domestic Legal Effects), 21 (Right to Property), and 25 (Right to Judicial Protection) of the Convention, in view of the fact that Nicargua had not demarcated the communal lands of the Awas Tingni Community, nor had the State adopted effective measures to ensure the property rights of the Community to its ancestral lands and natural resources, and also because it had granted a concession on community lands without the assent of the Community, and the State did not ensure an effective remedy in response to the Communityís protests regarding its property rights.

The IACtHR handed down a judgment affirming the existence of indigenous peoplesí collective rights to their land, resources and environment, in spite of not having any real property title deed in the land it claims. The Court declared that the communityís rights to property and judicial protection had been violated by the Nicarguan government when it granted concessions to a company to log on the communityís traditional land without even consulting the community, let alone obtaining its consent.

Deeming Nicarguaís legal protections for indigenous lands ëillusory and ineffective,í the Court ruled that not only did the government discriminate against the community by denying them equal protection under the laws of the state, it also violated its obligations under international law to bring its domestic laws in line with the rights and duties articulated in the American Convention on Human Rights, of which Nicargua is a signatory. In its ruling, the Court declared that for indigenous communities, the relationship with the land is not merely a question of possession and production; the land is also a material and spiritual element which they should fully enjoy, as well as a means of preserving their cultural heritage and passing it on to future generations.

The Court finally ordered the government to demarcate the land, recognizing the communityís ancestral and historical title to it, and to establish legal procedures for the demarcation and titling of the traditional lands of all indigenous communities in Nicargua.

Case of Expelled Dominicans and Haitians v. Dominican Republic (August 28, 2014)

The Commission submitted to the Court this case against the State of the Dominican Republic. This case related to the arbitrary detention and summary expulsion by the Dominican Republic within its territory, of the victims who were Haitians and Dominicans of Haitian descent, including children. Among other facts, one was also that there were a series of obstacles that prevented Haitian immigrants from registering their children born in Dominican territory and persons of Haitian descent born in the Dominican Republic from obtaining Dominican nationality.

Among other things, the IACtHR unanimously held that the State violated: (a) the rights to recognition of juridical personality, to nationality and to a name recognized in Articles 3, 20 and 18 of the American Convention on Human Rights, as well as the right to identity, owing to the said violations taken as a whole, in relation to the obligation to respect rights without discrimination established under Article 1 of the Convention, (b) the prohibition of the collective expulsion of aliens established in Article 22 (9) of the American Convention on Human Rights for failure to comply with the obligation to respect rights without discrimination established under Article 1 of the Convention., (c) the right to protection of the family recognized in Article 17 of the Convention.

Conclusion

Therefore, in this module we learnt how the Organisation of American States through its two organs – the Inter-American Commission on Human Rights and the specialized organization known as Inter-American Court of Human Rights creates a regional system of international human rights in the Americas. Both the Commission and the Court work hand in hand in upholding the human rights in the region. The Commission acts as the first line of defence for the victims of human rights violations. If the State decides to not comply with the recommendations of the Commission, the Commission can refer the matter to the IACtHR. Since its inception, IACtHR has delivered many landmark decision discussed above.

Reference

1. The Rules and the reality of petition procedures in the Inter-American Human Rights System, Dinah Shelton, The Future of the Inter-American Human Rights System – Working Paper #2, May 2014
2. References to the Inter-American Court of Human Rights and Inter-American instruments in the case-law of the European Court of Human Rights