Inter-American System for the Protection of Human Rights
The Inter-American System for the Protection of Human Rights is responsible for monitoring and ensuring implementation of human rights guarantees in the 35 member countries of the Organization of American States (OAS). It is one of three regional human rights systems – the others are in Europe and Africa.
The System is composed of two entities: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The Commission and Court are charged with interpreting and applying the following human rights instruments:
- American Declaration of the Rights and Duties of Man;
- American Convention on Human Rights;
- 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 to Prevent and Punish Torture;
- Inter-American Convention on Forced Disappearance of Persons;
- Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belem do Para”; and
- Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities.
The work of the Commission and Court is complemented by the autonomous research and educational Inter-American Institute of Human Rights. In addition, the Commission has established rapporteurships, which are “special mechanisms dedicated toward protecting and promoting the rights of vulnerable groups of people who have historically faced marginalization.”
In April 1948, the OAS adopted both its Charter and the American Declaration on the Rights and Duties of Man. The Declaration was the first international document listing universal human rights and proclaiming the need to protect these rights and preceded the United Nations’ Universal Declaration of Human Rights by several months. The
American Declaration was unique in that, unlike the Universal Declaration of Human
Rights, it included both human rights that need to be protected and duties that individuals have to society.
Entering into force in 1978, the American Convention on Human Rights reinforced many of the principles described in the American Declaration, focusing mainly on civil and political human rights and offering more detailed definitions of these rights than the Declaration. The Convention also named two “organs” as having “competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to this Convention”, namely: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The Convention then described the composition and functioning of the Commission and the Court.
Inter-American Commission on Human Rights
The principal function of the Inter-American Commission on Human Rights is to promote “the observance and defense of human rights in the Americas.” It examines human rights conditions and addresses violations in all 35 OAS Member States. It also serves as the consultative organ of the OAS on human rights issues.
“The Commission also holds thematic hearings on specific topical areas of concern, publishes studies and reports, requests the adoption of precautionary measures to protect individuals at risk, and has established several thematic rapporteurships to more closely monitor certain human rights themes or the rights of specific communities in the hemisphere. Individuals, groups of individuals, and non-governmental organizations recognized in any OAS Member State may submit complaints (“petitions“) concerning alleged violations of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and other regional human rights treaties.”
The Statute of the Commission provides it with specific powers with respect to all OAS Member States, including to:
- develop an awareness of human rights among the peoples of the Americas;
- make recommendations to the governments of the states on the adoption of progressive measures in favor of human rights … as well as appropriate measures to further observance of those rights;
- request that the governments of the states provide it with reports on measures they adopt in matters of human rights; and
- conduct on‑site observations in a state, with the consent or at the invitation of the government in question.
Furthermore, with respect to states that are parties to the American Convention on Human Rights, the Commission has additional powers to:
- act on petitions and other communications as provided for in the Convention;
- request the Inter‑American Court of Human Rights to take such provisional measures as it considers appropriate in serious and urgent cases … whenever this becomes necessary to prevent irreparable injury to persons;
- to consult the Court on the interpretation of the American Convention on Human Rights or of other treaties concerning the protection of human rights in the American states; and
- to submit to the General Assembly draft protocols or proposed amendments to the Convention so as to include additional rights and freedoms.
Note that Canada has not signed or ratified the Convention although it is party to several other OAS treaties.
Composition and Secretariat
The Commission comprises seven members who are elected by the General Assembly of the OAS and who have “recognized competence in the field of human rights.” No two nationals of the same Member State may be members of the Commission. Members are elected for a four-year term and may be re-elected once.
The seven members elect a Board of Officers composed of a President, a First Vice‑President and a Second Vice‑President. The President presides over sessions of the Commission and represents the Commission before the other organs of the OAS. The current President is Francisco José Eguiguren Praeli of Peru.
The Commission has its headquarters in Washington, D.C. and is supported by a Secretariat under the direction of an Executive Secretary, currently Paulo Abrão from Brazil. There is an Assistant Executive Secretary as well as professional, technical and administrative staff to carry out the activities of the Commission. These activities include the preparation of “draft reports, resolutions, studies and any other work entrusted to it by the Commission or by the President” as well as receiving and processing “the correspondence, petitions and communications addressed to the Commission” and work related to the rapporteurships.
The Commission began establishing rapporteurships in 1990. They are “special mechanisms dedicated toward protecting and promoting the rights of vulnerable groups of people who have historically faced marginalization” and allow the Commission to “oversee human rights conditions on topics of particular concern.” There are eight thematic rapporteurships, one special rapporteurship and one unit:
- Rapporteurship on Human Rights Defenders;
- Rapporteurship on the Rights of Afro-Descendants and against Racial Discrimination;
- Rapporteurship on the Rights of the Child;
- Rapporteurship on the Rights of Indigenous Peoples;
- Rapporteurship on the Rights of Lesbian, Gay, Trans, Bisexual, and Intersex Persons;
- Rapporteurship on the Rights of Migrants;
- Rapporteurship on the Rights of Persons Deprived of Liberty;
- Rapporteurship on the Rights of Women;
- Special Rapporteurship for Freedom of Expression; and
- Unit on Economic, Social and Cultural Rights
The rapporteurships and the unit have the following principal functions:
- advise the Commission in its processing of individual petitions, cases, and requests for precautionary and provisional measures related to their mandate;
- undertake country visits to investigate human rights conditions;
- conduct thematic reports and studies;
- develop recommendations to Member States;
- organize seminars, workshops, and specialized meetings;
- raise awareness of human rights issues;
- receive information from individuals and civil society;
- provide the Commission with annual reports on their work; and,
- contribute to the development of international human rights law.
Each of the eight thematic rapporteurships are normally overseen by one of the Commission’s seven members. The rapporteurships and the unit provide reports on their activities to the Commission which in turn presents annual reports to the OAS General Assembly.
The members of the Commission also serve as country rapporteurs with responsibility for carrying out activities assigned by the Commission with that state and there is often collaboration between the thematic rapporteurs and the country rapporteurs. James L. Cavallaro of the United States is the current rapporteur for Canada.
As indicated above, individuals, groups of individuals, and non-governmental organizations may submit petitions concerning alleged violations by a Member State of the American Declaration of the Rights and Duties of Man and, depending whether a Member State has ratified them, of the American Convention on Human Rights and other regional human rights treaties.
The Member State may have violated human rights by action – as a result of an act by the State or its agents), by acquiescence – as a result of the tacit consent of the State or its agents) or by omission – as a result of the State or its agents failing to take action when they should have done so). (Note that only violations of the Declaration can be considered for Member States that have not ratified the Convention or other human rights treaties.)
The Commission receives approximately 1,500 petitions every year. There are rather elaborate rules of procedure for considering and processing petitions. The Commission cannot determine the quilt or innocence of any individual with respect to an alleged violation of human rights, only the international responsibility of the Member State. Should the Commission determine that the Member State is responsible for a violation of human rights, a report is issued that may contain the following recommendations to the Member State:
- suspend the acts in violation of human rights;
- investigate and punish the persons responsible;
- make reparation for the damages caused;
- make changes to legislation; and/or
- require that the State adopt other measures or actions.
In addition, a friendly settlement of the matter may be pursued with the Member State.
Subsequent to the report described above, the Commission may submit a case the Inter-American Court of Human Rights (see below) if it considers that a Member State – that is both party to the American Convention and has accepted the jurisdiction of the Court – “has not complied with the recommendations of the report approved in accordance with Article 50 of the American Convention.” Such a Member State may also submit a case to the Court. Note that individuals do not have subsequent direct recourse to the Inter-American Court of Human Rights.
The Commission’s website contains its published cases (reports on admissibility, merits, friendly settlements and decisions to archive), decisions on requests for precautionary measures, and applications to the Inter-American Court of Human Rights, in addition to its annual reports, thematic reports, and country reports.
Inter-American Court of Human Rights
The Inter-American Court of Human Rights is “an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights.” The Court may only decide cases first processed by the Commission and brought against Member States that have ratified the Convention and accepted the “contentious” jurisdiction of the Court. Similarly, only the Commission and the Member States that have both ratified the Convention and accepted the jurisdiction of the Court may refer contentious cases to the Court. There are currently 20 Member States that met those criteria: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay.
Composition and Secretariat
The Court consists of seven judges who are elected at the General Assembly of the OAS by the Member States that are party to the American Convention on Human Rights. They must have “recognized competence in the field of human rights” and “possess the qualifications required for the exercise of the highest judicial functions under the law of the State of which they are nationals or of the State that proposes them as candidates.” No two nationals of the same Member State may be members of the Court. Judges are elected for a six-year term and may be reelected once.
The Court elects from among its members a President and Vice‑President who serve for a period of two years and may be re-elected. Duties of the President include directing the work of the Court, representing it, regulating the disposition of matters brought before the Court, and presiding over its sessions. The current President is Roberto F. Caldas of Brazil.
The seat of the Court is in San José, Costa Rica. However, the Court may convene in any Member State of the OAS when a majority of the Court considers it desirable and with the prior consent of the State concerned. The Court is supported by a Secretariat under the direction of a Secretary elected by the Court. The staff of the Secretariat is appointed by the Secretary General of the OAS in consultation with the Secretary of the Court. The functions of the Secretariat include serving notice of the judgments, advisory opinions, orders and other rulings of the Court, keeping session minutes, certifying the authenticity of documents and preparing the work schedules, rules and regulations and budgets of the Court.
The Court holds regular sessions and may hold extraordinary sessions convened by the President on her/his own or by a majority of the judges. It holds hearings “when it deems it appropriate to do so” and those hearings are normally held in public. Deliberations of the Court are done privately and keep secret. Decisions are by majority vote with President having a casting vote in the event of a tie. Judgments and orders of the Court may not be challenged in any way and the Court makes its judgments, orders and opinions public along with documents from the case file (except those considered unsuitable for publication).
The official languages of the Court are those of the OAS: Spanish, English, Portuguese, and French with the working language of each case determined at the beginning of the proceedings. The Court provides interpretation services for witnesses who do not have sufficient knowledge of the working language. There are elaborate rules of procedure for both written and oral proceedings.
States that are parties to a case are represented by agents who may be assisted by any persons of their choice. These Member States “have the obligation to cooperate so as to ensure that all notices, communications, or summonses addressed to persons subject to their jurisdiction are duly executed. They must also facilitate compliance with summonses by persons who reside or are present in their territory.” The Commission is represented by delegates it has designated for that purpose and they may be assisted by any persons of their choice.
The Court may also be consulted by Member States and by the various “organs” of the OAS regarding the interpretation of the American Convention on Human Rights or other treaties that are concerned with the protection of human rights in the Americas.
The Court’s website includes its judgments, annual reports and other publications.
Inter-American Institute of Human Rights
“The Institute (best known by its Spanish acronym “IIDH”) provides free online courses on various human rights topics, publishes numerous books, operates a Digital Library (navigation in Spanish), moderates a discussion listserve and organizes seminars and workshops for civil society throughout the Americas. In addition to its online resources, the Institute is open to visitors seeking research assistance, use of the physical library or to purchase publications.”
Accede: an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty. It has the same legal effect as ratification, but is not preceded by an act of signature. The formal procedure for accession varies according to the national legislative requirements of the State. Then, the instrument of accession, a formal sealed letter referring to the decision and signed by the State’s responsible authority, is prepared and deposited with the appropriate body.
Adoption: the formal act by which the form and content of a proposed treaty text are established. Treaties negotiated within an international organization like the United Nations are usually adopted by a resolution of a representative organ of the organization whose membership more or less corresponds to the potential participation in the treaty in question (the United Nations General Assembly, for example).
Affirmative Action: action taken to make up for past discrimination in education, work, or promotion on the basis of gender, race, ethnic origin, religion, or disability.
Article: international legal instruments generally include a Preamble (stating the reasons for and underlying understandings of the drafters and adopters of the instrument) and a series of ‘articles’, which lay out the obligations of those States choosing to be bound by it and procedural matters involving the treaty. The term ‘provision’ is often used as an alternative when referring to the content of particular articles.
Civil and Political Rights: the rights of citizens to liberty and equality that can include freedom to worship, to think and express oneself, to vote, to take part in political life, and to have access to information.
Codify: the process of bringing customary international law to written form.
Collective Rights: the rights of groups to protect their interests and identities.
Commission on Human Rights: was a body formed by the Economic and Social Council (ECOSOC) of the UN to deal with human rights; one of the first and most important international human rights bodies it was replaced in 2006 by the United Nations Human Rights Council.
Charter: the term ‘charter’ is used for particularly formal and solemn instruments, such as the treaty founding an international organization like the United Nations.
Convention: a formal, binding agreement between States, used synonymously with Treaty and Covenant. Conventions are normally open for participation by the international community as a whole, or by a large number of States. Once a convention is adopted, States can then Ratify it, promising to uphold it.
Covenant: binding agreement between states, used synonymously with Convention and Treaty. The major international human rights covenants, both passed in 1966, are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Customary International Law: law that becomes binding on states although it is not written, but rather adhered to out of custom. When enough states have begun to behave as though something is law, it becomes law “by use”; this is one of the main sources of international law.
Declaration: a document stating agreed upon standards but which is not legally binding. The term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. However, while the 1948 Universal Declaration of Human Rights, for example, was not originally intended to have binding force, its provisions have since gained binding character as customary law.
Deposit: after a treaty has been concluded, the written instruments which provide formal evidence of a State’s consent to be bound are placed in the custody of a depository. The depository must accept all notifications and documents related to the treaty, examine whether all formal requirements are met, deposit them, register the treaty and notify all relevant acts to the parties concerned.
Economic and Social Council (ECOSOC): a UN council of 54 members primarily concerned with population, economic development, human rights, and criminal justice. This body receives and issues human rights reports in a variety of circumstances.
Economic, Social, Cultural Rights: rights that concern the production, development, and management of material for the necessities of life. The right to preserve and develop one’s cultural identity. Rights that give people social and economic security, sometimes referred to as security-oriented or second generation rights. Examples are the right to food, shelter, and health care.
Entry into Force: a treaty does not enter into force when it is adopted. Typically, the provisions of the treaty determine the date on which the treaty enters into force, often at a specified time following its ratification or accession by a fixed number of states. A treaty enters into force for those states which gave the required consent.
Environmental, Cultural, and Developmental Rights: sometimes referred to as third generation rights, these rights recognize that people have the right to live in a safe and healthy environment and that groups of people have the right to cultural, political, and economic development.