The Inter-AmericanHuman Rights

System

of the

Organization of American States (OAS)

Prepared by Catherine Morris21 February 2014

The Human Rights System of the Organization of American States (OAS)

• Charter (applies to all OAS states)▫1948 OAS Charter▫1948 American Declaration of the Rights &

Duties of Man▫1959 Inter-American Commission on Human

Rights

• Convention (applies to States Parties)▫1969/1978 American Convention on Human

Rights▫Convention organs

Inter-American Commission on Human Rights Inter-American Court of Human Rights

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The OAS Charter as amended bythe 1967 "Protocol of Buenos Aires", the 1985 "Protocol of Cartagena de Indias“the 1992 "Protocol of Washington", and the 1993 "Protocol of Managua"

• Multilateral treaty opened for signature in April 30, 1948 (21 signatories)

• In force December 13, 1951 (“when two thirds of the signatory States have deposited their ratifications…” (Article 140) (Colombia was the 14th in 1951).

• Current member states: 35 sovereign states of the Americas▫ Cuba is officially a member but was expelled from participation in

1962. The OAS lifted the suspension in 2009, but Cuba says it will not rejoin.

• Spanish, English, Portuguese, and French texts are equally authentic (Article 139)

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Charter Principles (Article 3)• “International law is the standard of conduct of States

in their reciprocal relations;”• Strengthen the peace and security of the continent;• Respect for the principle of nonintervention;• State right to choose, without external interference, its

political, economic, and social system • But: inter-state cooperation• Elimination of extreme poverty • Condemnation of wars of aggression• International controversies settled by peaceful

procedures• “Social justice and social security are bases of

lasting peace”• Economic cooperation • “fundamental rights of the individual without

distinction as to race, nationality, creed, or sex;”• Respect for the cultural values of the American countries • “education of peoples” toward “justice, freedom, and

peace.”

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Human Rights in the OAS Charter• Article 3 (j): “the American States proclaim the

fundamental rights of the individual without distinction as to race, nationality, creed, or sex.”

• Article 17: “each State has the right to develop its cultural, political and economic life” and that in such development “the State shall respect the rights of the individual and the principles of universal morality.”

• No elaboration of these rights in the Charter.

• No institution created by the original Charter to promote observance.

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American Declaration of the Rights and Duties of Man

•1948 OAS resolution simultaneous with adoption of Charter

•Predated the 1948 UDHR by a few months

•Extensive list of human rights▫Civil and political ▫Economic and social (work, health, education, benefits of culture, fair remuneration, leisure, social security)

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Juridical status of the

American Declaration of the Rights & Duties of Man • 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, Advisory Opinion OC-10/89, July 14, 1989, Inter-Am. Ct. H.R. (Ser. A) No. 10 (1989

• A declaration, not a treaty (nonbinding):▫ But the Commission & the Court have stated that the

Declaration is a source of international obligations for OAS member States.

▫ AND “the Declaration contains and defines the fundamental human rights referred to in the Charter.” (Advisory Opinion OC-10/89, July 14, 1989, Inter-Am. Ct. H.R. (Ser. A) No. 10 (1989)

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Inter-American Commission on Human Rights • 1959: The IACHR was created by the Declaration of Santiago• 1967 (in force 1970): Amendment to the Charter (Protocol of

Buenos Aires) broadens IACHR powers & establishes it as a Charter organ ▫ Charter Chapter XV, Art. 106 (as amended by Protocol of

Buenos Aires)▫ Powers broadened so that the Commission could hear

petitions concerning the Declaration.▫ Amended Charter Art. 106 says Commission

structure/powers are as set out by the American Convention on Human Rights (ACHR)

• The ACHR (Art 39) says the Commission “shall prepare its own Statute, which it shall submit to the General Assembly for approval. It shall establish its own Regulations.

(Commission role in Convention-based part of the system discussed later.)

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Membership of the Commission• Statute of the Inter-American Commission on Hu

man Rights ▫7 members of good moral character and

recognized competence in human rights▫elected in a personal capacity by the General

Assembly of OAS from list of candidates proposed by governments of the member states.

▫Terms of 4 years; may be reelected only once▫no two commissioners from the same nation

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Inter-American Commission on Human Rights: Its functions within Charter based system • Promotion• Consultation• Drafting instruments (including the Convention)• Sponsors conferences• Publishes documents• Mediation in international and non-international armed

conflicts• Country studies (on site visits, hearings, reports,

recommendations)• Reporting to the General Assembly of the OAS

▫ Moral and political weight▫ But responses of the Assembly vary.

• Individual petitions (results in recommendations)

• See Article 20 of the Statute of the Commission for powers with respect to the member states of the OAS

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Who can complain to the Commission?

(under the Charter based part of the system) • Individual petitions against members of the OAS about violations

of rights in the Declaration. • Article 20. re OAS members that are not parties to the

Convention: Commission to pay particular attention to observance of the

human rights in Articles I,II, III, IV, VIII, XV, XVI of the American Declaration of the Rights and Duties of Man;

examine communications submitted to it, examine and seek other available information, and make recommendations to the state towards more effective observance of fundamental human rights; and,

Verify that domestic remedies have been exhausted before examining communications.

• Complaints to the Commission under the Convention are discussed later

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Inter-American Convention

Convention institutions are• Inter-American Commission on Human Rights• Inter-American Court of Human Rights

So… the Commission is both a Charter institution and a Convention institution

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American Convention on Human Rights •Adopted on November 21, 1969

•Came into force July 18, 1978

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Purpose and Philosophy of ACHR• Preamble

▫ “to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.”

▫ “…essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality…”

▫ in accordance with UDHR, “ideal of free men enoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights…”

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Types of Rights• Civil and Political Rights (Arts. 3-25)

▫ Right to life “protected, in general, from the moment of conception.” (article 4)

▫ humane treatment, no slavery, fair trial, freedom from ex post facto laws, compensation for miscarriage of justice, privacy, freedom of conscience/religion, thought/expression, assembly/association, right of men/women to marry (consent), right to name, rights of child (article 19), right to nationality, movement/residence, participation…

▫ property (Art 21)

• Economic, Social and Cultural Rights (Art. 26)▫ Additional Protocol to the ACHR in the Area of Economic,

Social and Cultural Rights (Protocol of San Salvador)

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Derogable & non-derogable rights

Article 27 “Suspension of Guarantees”. States may derogate from its obligations in

times of war, public danger or other emergency “that threatens the independence or security of a State Party.”

Only to extent and for period of time strictly necessary

Must not be inconsistent with other IL obligations; no discrimination on ground of race, color, sex, language, religion, social origin.

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Derogable & non-derogable rights

No derogation of:Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), Article 23 (Right to Participate in Government), “or of the

judicial guarantees essential for the protection of such rights.”

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Ratification of the ACHR •25 countries have ratified

•Notable exceptions include:▫USA (signed 1977 but never ratified) ▫Canada (In 2003, the Senate Standing

Committee on Human Rights recommended ratification.)

▫Cuba: never signed

•This means Canada and USA are not subject to compulsory jurisdiction of the Court

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Convention Complaint Process• Who can complain under the Convention?

▫ A person, a group of persons, or an NGO may present a petition to the Commission

• The Commission decides admissibility

• State party against which the petition has been brought must have accepted Commission’s jurisdiction (Article 45)

• Domestic remedies must have been exhausted or unavailable

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ACHR Treaty Bodies

Inter-American Commission on Human Rights

• Receives, analyzes and investigates individual complaints/petitions

• If admissible, Commission investigates • “Friendly resolution” possible• Commission provides private report with

recommendations to State• Commission gives State time to comply• If no compliance the Commission may

▫ issue second report (public) and/or▫ refer petition to Inter-American Court of Human Rights

• Commission may request advisory opinions from Inter-American Court regarding questions of interpretation of ACHR

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ACHR Treaty Bodies

Inter-American Court of Human Rights • No applications directly to the Court, only on referral

by the Commission

• Adjudicative jurisdiction only when State party against which a case is brought has accepted Court’s binding jurisdiction (Article 62)

• The Court considers cases and makes binding decisions

• OAS Member States may consult Court on the interpretation of Convention

• Court may also issue opinions on compatibility of a State’s domestic laws with Convention

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Other instruments Inter-American Convention to Prevent and Punish Torture Additional Protocol to the American Convention on Human Rights in the

Area of Economic, Social and Cultural rights (“Protocol of San Salvador”)

Protocol to the American Convention on Human Rights to Abolish the Death Penalty

Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belem do Para”

Inter-American Convention on Forced Disappearance of Persons Inter-American Convention on the Elimination of All Forms of Discrimina

tion against Persons With Disabilities Inter-American Democratic Charter Declaration of Principles on Freedom of Expression Principles and Best Practices on the Protection of Persons Deprived of Li

berty in the Americas

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Rapporteurships and Units• Rapporteurship on the Rights of Indigenous Peoples

1990 • Rapporteurship on the Rights of Women 1994 • Rapporteurship on the Rights of Migrants 1996 • Special Rapporteurship for Freedom of Expression

1997• Rapporteurship on the Rights of the Child 1998• Rapporteurship on Human Rights Defenders 2001• Rapporteurship on the Rights of Persons Deprived of

Liberty 2004• Rapporteurship  on the Rights of Afro-Descendants

and against Racial Discrimination 2005• Rapporteurship on the Rights of Lesbian, Gay, Trans,

Bisexual, & Intersex Persons 2013 (Unit 2011-2013) • Unit on Economic, Social and Cultural Rights 2012

 

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Case study: Inter-American Court of Human Rights: Awas Tingni Case The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001)

• 1979: Nicaragua ratified the ACHR• 1995: Nicaragua granted logging concession

to Korean lumber company SOLCARSA on >62,000 hectares of Awas Tingni indigenous community’s ancestral lands

• 2000: Awas Tingni Community petitioned, alleging violations of the Convention:• Article 21: Right to property • Article 25: Right to judicial protection

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AwasTingni Case (continued)

• 2001: The Court:• Found both Art 21 and Art 25 rights were violated• Right to Property (Article 21): Upheld collective rights of

indigenous peoples to land & resources• Ruled that the “State must adopt in its domestic law… the

legislative, administrative, and any other measures necessary to create an effective mechanism for delimitation, demarcation, and titling of the property of indigenous communities, in accordance with their customary law, values, customs and mores…”

• Ordered the State to pay “reparation for immaterial damages, in the course of 12 months, … US$50,000… in works or services…”

• Ordered the State to pay to Awas Tingni US$30,000 expenses & costs

• The first binding decision of an international tribunal upholding collective land & resource rights of indigenous peoples against a State’s failure to do so.

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AwasTingni Case (continued)

Then what?2002: Court order of 2001, required progress reports from

Nicaragua on the demarcation process every 6 months. No reports filed.

2003: Court issued resolution Sept 2003 requiring Nicaragua to take necessary measures “without delay.”

2003: Awas Tingni sued the government in the Nicaragua Appeals Court for noncompliance.

March 2008: UN HRC (re ICCPR) (pdf) comments in Concluding Observations about continuing delays in titling.

December 2008: titling finally done.Who assisted the Awas Tingni community?

▫ U Arizona Indigenous Peoples & Law Program (IPLP), incl. students

▫ Indian Law Resource Center ▫ A New York law firm▫ Nicaraguan lawyers

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A case using the Declaration: The Petition of the

Hul'qumi'num Treaty Group (HTG)• 1970: Canada became a member of the OAS (Party to the

Charter).• Canada has not ratified the American Convention on Human

Rights.• HTG for years unsuccessfully tried to include private lands (the

bulk of its territory) in its treaty negotiation with Canadian and BC governments.

• 2007: HTG petitioned Inter-American Commission on Human Rights under the Declaration.

• 2009: Commission rules petition admissible:▫ BC Treaty Commission not effective;▫ There has never been “a specific order by a Canadian court mandating

the demarcation, recording of title deed, restitution or compensation of indigenous peoples with regard to ancestral lands in private hands.”

• October 2011: hearing of the Commission on the merits• February 2014: Still awaiting decision

• See 2012 presentation of Chief Negotiator, Robert Morales at http://www.lrwc.org/video-seeking-justice-elsewhere/

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More ResourcesOrganization of American States: www.oas.org

Basic Documents Pertaining to Human Rights in the Inter-American System: Summary of the basic documents and institutions: http://www.cidh.oas.org/Basicos/English/Basic.TOC.htm

Inter-American Commission on Human Rights (IACHR) Official Website: http://www.cidh.org/

Inter-American Court of Human Rights official website: www.corteidh.or.cr

Child Rights Information Network: Glossary on the Inter-American System of Human Rights

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More Resources (continued) National Association of Women and the Law (NAWL). Ratifying the

American Convention on Human Rights: The Stakes for Women, 2003. http://www.nawl.ca/ns/en/documents/Pub_Brief_AmConvHR03_en.pdf

NAWL, NAWL will not endorse ratification of the American Convention until we have the assurance that women’s reproductive rights, including the right to abortion, will be effectively guaranteed. NAWL, February 2004. http://www.nawl.ca/en/pub-archives/open-letters-archives-hidden/159-womens-reproductive-rights-and-the-american-convention-on-human-rights

Mary Cornish and Victoria Shen. “Ten Reasons Canada should Ratify the American Convention on Human Rights.” Canadian Bar Association, 2006, http://www.cba.org/CBA/Sections_International/pdf/tenreasonsforACHRratification.pdf

Senate Standing Senate Committee on Human Rights. “Enhancing Canada's Role In The OAS: Canadian Adherence To The American Convention On Human Rights,” 2003, http://www.parl.gc.ca/Content/SEN/Committee/372/huma/rep/rep04may03-e.htm

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