31 Part A : Inter-American System for the Protection of Human Rights: Introduction

Gudrun Gudmundsdottir

Introduction

The Inter-American system for the protection of human rights is one of the world’s three major regional human rights systems. Its role is to promote and monitor the implementation of the human rights obligations of the 35 member states of the Organization of American States (OAS).

The main human rights instruments are the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and its protocols on economic, social and cultural rights and to abolish the death penalty, as well as conventions to prevent and punish torture, enforced disappearances, discrimination against persons with disabilities and violence against women.

Two main monitoring bodies are charged with interpreting and applying the instruments: the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. Both bodies receive individual complaints and may issue emergency protective measures. The Court is empowered to issue advisory opinions on the interpretation of the OAS instruments at the request of the organisation or Member States. The Commission engages in a broad range of human rights promotion and monitoring activities, through e.g. special mechanisms such as thematic and country rapporteurs.

Learning Outcomes:

• To understand the inter-American system for the protection of human rights.
• To have a comprehensive view of the various conventions and instruments.

Organization of American States

The Organization of American States is a regional inter-governmental organisation as defined by Article 52 of the UN Charter. The OAS Charter was adopted at the Ninth International Conference of American States in 1948 and entered into force in 1951. It has been amended several times. The 1967 Protocol of Buenos Aires changed the structure of the organisation in several aspects and elevated the status of the Inter-American Commission on Human Rights to that of a ‘principal organ’ of the OAS.

Various provisions of the OAS Charter refer to human rights but only in vague terms. Article 3 (j) of the 1948 Charter referred to the ‘fundamental rights of the individual’ among the principles which the Charter promotes. While the Charter does not list or define the human rights it refers to, the Inter-American Court has ruled that ‘[t]hese rights are none other than those enunciated and defined in the American Declaration’ (Advisory Opinion No. 10, OC-10/89, 14 July 1989, para.41).

Various organs of the OAS have a degree of responsibility regarding human rights: The General Assembly, composed of representatives of the 35 Member States, is the supreme organ of the OAS (Article 54 OAS Charter). It meets once a year in a regular session. Among other functions, the General Assembly shall ‘decide the general action and policy of the Organisation.’ The General Assembly elects the members of the Inter-American Commission on Human Rights and approves the budget and the annual reports of both the Commission and the Inter-American Court of Human Rights. The judges of the Court are elected by the states parties to the American Convention on Human Rights, and not by the General Assembly.

The Permanent Council is composed of one representative of each member state of the OAS, especially appointed by the respective Government, with the rank of Ambassador (Article 80 OAS Charter). It reviews the Annual Reports of the Inter-American Commission and the Court before their submission to the General Assembly. When discussing the Court’s Annual Report, the General Assembly may consider only the resolutions approved by the Permanent Council. Therefore, if this organ decides against considering or commenting on the recommendations made by the Court, the General Assembly is unable to act on the recommendations.

The Meetings of Consultation of Ministers of Foreign Affairs are ad hoc meetings held at the request of any government whenever problems of an ‘urgent nature and of common interest’ to the member states arise (Article 61 OAS Charter).

The General Secretariat is the central and permanent organ of the OAS, with its seat in Washington, D.C. (Articles 107 and 121 OAS Charter). It performs the functions assigned to it in the Charter (Articles 112 and 113), in other inter-American treaties and agreements and those entrusted by the General Assembly, the Meetings of Consultation of Ministers of Foreign Affairs or the Councils of the Organization. The Secretariat is headed by the Secretary General, elected by the General Assembly for a five-year term (Article 108). The Secretary General may participate in all meetings of the OAS, with voice but without a vote (Article 110).

Human Rights Instruments

AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN

The same Diplomatic Conference that adopted the OAS Charter proclaimed the American Declaration of the Rights and Duties of Man) (ADHR) (2 May 1948). Although it was adopted as a non-binding instrument, its character has gradually changed. Nowadays it is deemed to be the authoritative interpretation of ‘the fundamental rights of the individual,’ which Article 3 (j) of the OAS Charter proclaims as one of the principles of the Organization. The Inter-American Court confirmed the legal force of the American Declaration in Advisory Opinion No. 10 on the Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights (see paras. 43 and 45). The Inter-American Commission receives individual complaints alleging violations of the Declaration with respect to OAS member states that are not parties to the American Convention on Human Rights.

AMERICAN CONVENTION ON HUMAN RIGHTS

The American Convention on Human Rights (ACHR) was adopted on 20 November 1969 and entered into force on 18 July 1978. It is the key regional human rights instrument for the protection of civil and political rights in the Americas. The majority of major OAS Member States have ratified the Convention with the notable exception of the USA and Canada, and in 2012 Venezuela denounced the Convention citing dissatisfaction with its monitoring bodies.

The Convention confers competence with respect to matters relating to the fulfillment of its obligations to two organs: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The supervisory system provided by the Convention is legally binding only on the states parties to it.

Although the ACHR contains primarily civil and political rights, Article 26 expresses the general commitment of states parties to adopt measures with a view to the full realisation of economic, social and cultural rights. Moreover, the ACHR differs from the ICCPR, because it contains guarantees of the right to reply (Article 14) and to property (Article 21). In addition, it has a more elaborate and advanced text than the ECHR in regard to, for example, to right to participate in government (Article 23) and a guarantee of the right to equal protection (Article 24).

Ch.I: General obligations: obligation to respect rights (Art.1) and domestic legal effects (Art.2).

Ch.II: Civil and political rights: juridical personality (Art.3); right to life (Art. 4); right to humane treatment (Art.5); freedom from slavery (Art. 6); right to personal liberty (Art.7); right to fair trial (Art.8); freedom from law (Art. 9); right to compensation (Art.10); right to privacy (Art.11); freedom of conscience and religion (Art. 12); freedom of thought and expression (Art.13); right to reply (Art.14); right to assembly (Art.15); freedom of association (Art.16); rights of the family (Art.17); right to a name (Art.18); rights of the child (Art.19); right to nationality (Art.20); right to property (Art. 21); freedom of movement and residence (Art. 22); right to participate in government (Art.23); right to equal protection (Art. 24); and right to judicial protection (Art.25).

Ch.III: Economic, social and cultural rights (Art. 26).

Ch.IV: suspension of guarantees, interpretation and application (Art.27 to 31).

Ch.V: personal responsibilities (Art.32).

Ch. VI: competent organs (Art.33).

Ch. VII: Inter-American Commission on Human Rights (Art.34 to 51).

Ch.VIII: Inter-American Court of Human Rights (Art.52 to 69).

Ch. IX: common provisions (Art.70 to 73).

Ch.X and XI: general and transitory provisions (Art.74 to 82).

PROTOCOL OF SAN SALVADOR IN THE AREA OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (1988)

The Protocol of San Salvador was adopted in 1988 to give effect to Article 26 ACHR. It entered into force on 16 November 1999. As of January 2015, the Protocol had 16 parties.

The states parties to the Protocol undertake to adopt the necessary measures, both domestically and through international co-operation, especially economic and technical, for the purpose of achieving progressively and pursuant to their internal legislation the full observance of the rights recognised in the Protocol. Although the Protocol takes into account the states’ degrees of development and restrictions of available resources, progressive implementation is, nonetheless, an obligation.

The Protocol contains mostly the same rights as the ICESCR: the right to work (Article 6); the right to just, equitable and satisfactory conditions of work (Article 7); trade union rights (Article 8); the right to social security (Article 9); the right to health (Article 10); the right to education (Article 13); and the right to the benefits of culture (Article 14). However, the Protocol improves on the provisions of the ICESCR by giving recognition to a number of rights which are not included in the Covenant, such as the right to a healthy environment (Article 11); the right to the formation and the protection of the family (Article 15); the rights of children (Article 16); the protection of the elderly (Article 17); and the protection of people with disabilities (Article 18).

The Protocol establishes the possibility to submit to the Inter-American Commission, through the individual petition mechanism, complaints alleging violations of the right to organise and to join unions and national federations of unions or international trade union organisations, protected under Article 8(1)(a), as well as violations of the right to education, protected under Article 13. The Court may examine these cases under its contentious jurisdiction (Article 19(6)).

PROTOCOL TO ABOLISH THE DEATH PENALTY (1990)

This Protocol was adopted on 8 June 1990. It expands upon Article 4 ACHR (right to life). No reservations may be made to the Protocol but, at the time of ratification or accession, the states parties may declare that they reserve the right to apply the death penalty in wartime in accordance with international law, for extremely serious crimes of a military nature. However, this exception must be provided for in domestic law, and its application is subject to strict reporting conditions set out in the Protocol.

INTER-AMERICAN CONVENTION TO PREVENT AND PUNISH TORTURE (1985)

The Convention on Torture was adopted on 9 December 1985 and entered into force on 28 February 1987. The Convention expands upon the provisions of Article 5 ACHR, which prohibits torture and cruel, inhuman or degrading punishment or treatment and can be invoked before the Inter-American Court to interpret the provisions of Article 5 ACHR. Furthermore, the Court has given itself jurisdiction to apply the Convention directly (see, for example, Villagrán Morales et al. v. Guatemala). The Convention excludes the defence of superior orders, as well as any state of emergency, any other kind of public emergency, the suspension of constitutional guarantees or political instability as justification for torture. States undertake to submit reports on ‘any legislative, judicial, administrative, or other measures’ they adopt in the application of the Convention to the Inter-American Commission (Article 17).

INTER-AMERICAN CONVENTION ON THE FORCED DISAPPEARANCE OF PERSONS (1994)

Adopted on 9 June 1994, the Convention on the Forced Disappearance of Persons came into force on 28 March 1996. It addresses an issue that plagued Latin America for decades. A forced disappearance is when a person is secretly abducted or imprisoned by agents of the state or others acting with the authorisation, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees. The Convention stipulates that parties should punish those who commit or attempt to commit the crime of forced disappearance of persons and cooperate with one another to prevent, punish and eliminate disappearances. Violations of the Convention can be brought to the attention of the Inter-American Commission and follow the same process as petitions under the American Convention.

INTER-AMERICAN CONVENTION ON THE PREVENTION, PUNISHMENT, AND ERADICATION OF VIOLENCE AGAINST WOMEN (CONVENTION OF BELÉM DO PARÁ) (1994)

This Convention was adopted on 9 June 1994 and came into force on 2 March 1995. It condemns any act or conduct ‘based on gender which causes death or psychological harm or suffering to women, whether in the public or the private sphere.’

The definition of violence under the Convention includes domestic violence in the widest sense; that is, within any inter-personal relationship and whether or not the perpetrator resides with the victim. It also includes violence occurring in the community or perpetrated or condoned by the state or its agents, wherever it occurs. States parties have specific duties under the Convention to adopt the required legislative measures to prevent and punish all forms of violence against women.

States report on measures they have adopted to prevent and prohibit violence against women in their national reports to the Inter-American Commission of Women, a specialised body of the OAS, which aims to promote and protect the rights of women in the Americas. If provisions of the Convention have allegedly been violated, any person, group of persons or legally recognised NGO can lodge petitions with the Inter-American Commission.

This Convention provides a good example of the trend towards the accountability of private actors in international law. It clearly spells out that ‘violence against women is an offence against human dignity and a manifestation of the historically unequal power relations between women and men’ and ‘shall be understood as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere’ (Article 1, emphasis added). It is still, however, the state concerned that remains responsible, as the violations must have been ‘condoned by the state or its agents’.

INTER-AMERICAN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST PERSONS WITH DISABILITIES (1999)

Adopted on 7 June 1999, this Convention entered into force on 14 September 2001. Its Preamble refers to a number of international conventions, declarations and resolutions aimed at the protection of persons with physical, mental or sensory impairment, ‘whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment’.

The Convention is divided into four parts: a) the objectives concerning the prevention and elimination of discrimination and the integration of persons with disabilities into society; b) the obligations of states parties; c) definitions of discrimination and disability; and d) implementation mechanisms.

States parties undertake to take all the necessary measures, including legislative, to promote the integration of persons with disabilities into society, ‘under conditions of equality.’ Their obligations range from ensuring that buildings and vehicles are designed so as to allow access by persons with disabilities, to giving priority to prevention, early detection, and treatment. States parties also undertake to increase public awareness so as to eliminate stereotypes, prejudices, and discrimination in employment.

The Convention establishes a supervisory mechanism, the Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities, composed of one representative from each state party. The Committee is charged with reviewing state reports to be submitted every four years on ‘follow-up on the commitments’ undertaken in the Convention.

Summary

The Inter-American system for the protection for human rights is one of the world’s major regional human rights systems.

The fundamental instrument is the American Convention on Human Rights, complemented by protocols on economic, social and cultural rights and on the abolition of the death penalty.

Within the system, conventions have been elaborated on the prevention and punishment of torture, enforced disappearances, discrimination against disabled persons and the prevention, punishment and eradication of violence against women.

The editors are indebted to the authors of the Human Rights Reference Handbook (5th edition, Reykjavik, 2010) for permission to use their work as a basis for various modules of this paper. The updating of information and final presentation is, however, our responsibility alone. (The publishers are the Icelandic Human Rights Centre, Reykjavik, Iceland and the University for Peace, Ciudad Colon, Costa Rica. The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.)

Reference

• Human Rights Reference Handbook (5th edition, Reykjavik, 2010)
• The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.