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The Inter-American Human Rights System

The Inter-American Human Rights System. of the Organization of American States (OAS) Prepared by Catherine Morris 7 February 2013. The Human Rights System of the Organization of American States (OAS). Charter (applies to all OAS states) 1948 OAS Charter

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The Inter-American Human Rights System

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  1. The Inter-AmericanHuman Rights System of the Organization of American States (OAS) Prepared by Catherine Morris 7 February 2013

  2. C. Morris, 7 January 2013 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 and 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

  3. C. Morris, 7 January 2013 OAS Human Rights Framework

  4. C. Morris, 7 January 2013 Relationship between UN and OAS

  5. C. Morris, 7 January 2013 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)

  6. C. Morris, 7 January 2013 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.”

  7. C. Morris, 7 January 2013 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 to promote observance created by the original Charter.

  8. C. Morris, 7 January 2013 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)

  9. C. Morris, 7 January 2013 Juridical status of the American Declaration of the Rights and 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 is “the text that defines the 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)

  10. C. Morris, 7 January 2013 Inter-American Commission on Human Rights • Created in 1959 by the Declaration of Santiago • Established as a Charter organ in 1970 • Charter, Chapter XV, Article 106 (as amended by the Protocol of Buenos Aires 1970) • Headquarters in Washington DC (The Commission’s role in the Convention-based part of the system is discussed later)

  11. C. Morris, 7 January 2013 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 18 for powers with respect to the member states of the OAS

  12. C. Morris, 7 January 2013 Membership of the Commission • Statute of the Inter-American Commission on Human 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

  13. C. Morris, 7 January 2013 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

  14. C. Morris, 7 January 2013 Convention-Based System 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

  15. C. Morris, 7 January 2013 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, property (Art 21), movement/residence, participation… • 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)

  16. C. Morris, 7 January 2013 Inter-American Convention on Human Rights • Adopted on November 21, 1969 • Came into force July 18, 1978

  17. C. Morris, 7 January 2013 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…”

  18. C. Morris, 7 January 2013 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.

  19. C. Morris, 7 January 2013 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.”

  20. C. Morris, 7 January 2013 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.) • This means Canada and USA are not subject to compulsory jurisdiction of the Court

  21. C. Morris, 7 January 2013 Convention Complaint Process • Who can complainunder the Convention? • A person, a group of persons, oran NGO maypresent 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 musthavebeenexhaustedorunavailable

  22. C. Morris, 7 January 2013 ACHR Treaty BodiesInter-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

  23. C. Morris, 7 January 2013 ACHR Treaty BodiesInter-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

  24. C. Morris, 7 January 2013

  25. C. Morris, 7 January 2013 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 Discrimination 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 Liberty in the Americas

  26. C. Morris, 7 January 2013 Rapporteurships and Units • Rapporteurships: • Rights of Indigenous Peoples (1990) • Rights of Women (1994) • Rights of Migrant Workers and Their Families (1996) • Freedom of Expression (1997) • Rights of the Child (1998) • Human Rights Defenders (Unit 2001; Rapporteurship 2011) • Rights of Persons Deprived of Liberty (2004) • Rights of Afro-Descendants & against Racial Discrimination (2005) • Units: • Unit on the Rights of Lesbian, Gay, Trans, Bisexual and Intersex Persons (2011) • Unit on Economic, Social and Cultural Rights (2012)

  27. C. Morris, 7 January 2013 Case study: Inter-American Court of Human Rights: AwasTingni Case The Mayagna (Sumo) AwasTingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001) • 1995: Nicaragua granted logging concession Korean lumber company SOLCARSA on >n 62,000 hectares of AwasTingni indigenous community’s ancestral lands • 2000: AwasTingni Community petitioned, alleging violations of the Convention: • Article 21: Right to property: • Article 25: Right to judicial protection

  28. C. Morris, 7 January 2013 AwasTingni Case (continued) • 2001: The Court: • Found both rights were violated • 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 AwasTingni US$30,000 expenses & costs • The first binding decision of an international tribunal upholding collective land & resource rights of indigenous peoples against a State failing to do so.

  29. C. Morris, 7 January 2013 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: AwasTingnisued 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. James Anaya, UN SR for Rights of Indigenous Peoples attends the ceremony • Who assisted the AwasTingni community? • University of Arizona Indigenous Peoples & Law Program (IPLP), including students. • Indian Law Resource Center, • A New York law firm • Nicaraguan lawyers

  30. C. Morris, 7 January 2013 More Resources • Organization 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

  31. C. Morris, 7 January 2013 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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