The Inter-American Regional Human Rights System
The Inter-American human rights system has evolved over time, despite setbacks, into a force for human rights protection in the Americas. In 1948, prior to the United Nations (UN) General Assembly’s adoption of the UDHR,1 the General Assembly of the Organization of American States (OAS) adopted the American Declaration of the Rights and Duties of Man.2 Since that time, the OAS has promulgated other human rights treaties and declarations. Progress in the actual protection of human rights, however, has not always been evident across the region.
Some states in the Americas, particularly in the 1970s and early 1980s, struggled under repressive regimes that freely violated human rights. These governments used gross and systematic human rights violations to intimidate sectors of the population and to maintain the status quo. Torture, forced disappearances and extrajudicial executions were deliberate policy in certain countries. Subsequently, when democracies regained control in those states, they ratified regional and international human rights treaties and accepted the jurisdiction of international monitoring organs with the aspiration that ‘never again’ would their countries descend into depths of human rights abuse.
Over time, civil and political rights have improved in most countries of the Americas, although impunity still exists for violations. Conversely, economic, social and cultural rights have not yet shown significant development in the Inter-American system. Nonetheless, much of the progress that has been made in human rights can be attributed to the growth and efforts of the Inter-American human rights system. The challenges still to be met are vast, but the groundwork has been laid and the system is evolving.
The Inter-American human rights system was established under the auspices of the OAS, an international organization comprising all 35 independent states of the Western hemisphere, namely, Antigua and Barbuda, Argentina, the Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, United States, Uruguay, and Venezuela. In 1962, Cuba was suspended from participating in the OAS because it adopted a Marxist-Leninist form of government. Cuba’s suspension was withdrawn on 3 June 2009 when the OAS General Assembly voted by acclamation to revoke the 1962 resolution that barred Cuba’s participation in the OAS. The OAS has, however, set certain conditions before Cuba is fully reinstated; first, Cuba must request readmission to the OAS and, second, it must take part in negotiations. It is hoped that Cuba will eventually play a more active role in the OAS human rights system by ratifying human rights treaties, nominating members to the Inter-American Commission and judges to the Inter-American Court, and accepting the jurisdiction of the Inter-American Court.
The OAS adopted both the American Declaration of the Rights and Duties of Man3 and the OAS Charter at the Ninth Conference of American States in 1948. Although the OAS Charter, the constituent instrument forming the OAS, proclaimed that one of the basic principles of the OAS is the ‘fundamental rights of the individual’,4 it did not enumerate or define those rights in any detail.5 That role was fulfilled by the American Declaration of the Rights and Duties of Man.
2. The American Declaration of the Rights and Duties of Man
The American Declaration of the Rights and Duties of Man (American Declaration) was the first international statement of human rights. It was adopted in April 1948, more than 6 months before the UN General Assembly adopted the UDHR. The American Declaration remained the only human rights instrument in the Inter-American system until 1978, when the American Convention on Human Rights entered into force. The Inter-American Commission on Human Rights, which began examining individual human rights complaints under the amended OAS Charter in 1965,6 initially applied the American Declaration as the only source of legal norms of what constituted human rights within the Inter-American system.
The American Declaration is not a treaty, and was not originally intended to be binding on states. In its advisory opinion 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,7 the Inter-American Court of Human Rights clarified the current normative value of the declaration in the Inter-American system. In doing so, the court did not look solely to the normative value and significance that the declaration was believed to have had when it was adopted in 1948.8 Rather, it determined the legal status of the declaration by considering the evolution of the Inter-American system since the adoption of the declaration.9 The court advised that
[t]he Declaration contains and defines the fundamental human rights referred to in the Charter. Thus the Charter of the Organization cannot be interpreted and applied as far as human rights are concerned without relating its norms, consistent with the practice of the organs of the OAS, to the corresponding provisions of the Declaration.10
The court emphasized that the OAS General Assembly has repeatedly recognized the American Declaration as a source of legal obligations for OAS member states.11 Moreover, the Statute of the Inter-American Commission, which was approved by the OAS General Assembly, provides that ‘[f]or those States that have not ratified the American Convention, the Commission continues to apply the norms of the American Declaration.12
This interpretation of the legal effects of the American Declaration of the Rights and Duties of Man is similar to the assertion that the UDHR has come to have binding effects on the states parties to the UN Charter. Louis Sohn and other international law experts have maintained that the UDHR is an authoritative interpretation of the human rights protected by the UN Charter, which is a treaty, and that the failure to observe those rights is a violation of the UN Charter.13 Sohn’s vision of the status of the UDHR was reflected in the Proclamation of Tehran, adopted by the 1968 International Conference on Human Rights, which proclaimed that the ‘Universal Declaration of Human Rights states a common understanding for the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.’14 This proclamation was later endorsed by the UN General Assembly15 and emphasized by the UN Secretary-General.16 Subsequently, the Inter-American Court employed similar reasoning when determining the status of the American Declaration.
Like the UDHR, the American Declaration recognizes both civil and political rights as well as economic, social and cultural rights. It establishes 27 substantive human rights which must be protected by the state. The freedoms and rights protected include the rights to life, religious freedom, assembly, association, property, equality before the law, a fair trial, asylum, the inviolability of the home and correspondence, education, work with fair remuneration, social security, leisure time, the benefits of culture, political participation, nationality, protection for mothers and children, freedom of expression, and the right to take part in the cultural life of the community.
Whereas the UDHR focuses on rights and makes only a brief statement that ‘[e]veryone has duties to the community’, the American Declaration focuses on both the rights and the duties of persons. It puts special emphasis on the duties of the individual stating, ‘[t]he fulfillment of duty by each individual is a prerequisite to the rights of all.’17 The preamble to the American Declaration also asserts that ‘duties of a juridical nature presuppose others of a moral nature, and that man has the duty to ‘preserve, practice and foster culture by every means within his power’ and to develop spiritually.18 In addition, the individual duties imposed by the American Declaration include, inter alia, the duty of parents to care for their children and children to honour their parents, and the duty of every individual to acquire at least an elementary education, and to vote, obey the law, pay taxes, work, and serve the community and the nation.
Initially, there was no organ charged with monitoring state observance of the human rights guaranteed under the American Declaration. Progress was made in enforcement of human rights when the Inter-American Commission on Human Rights was created in 1959.19 Six years later, the OAS explicitly authorized the commission to examine individual human rights complaints.20 The Inter-American Commission became a principal organ of the OAS when the OAS Charter was amended by the 1967 Protocol of Buenos Aires. Until 1969, the American Declaration was the sole human rights instrument of the Inter-American system and, consequently, the commission applied it to all OAS member states.21 Since the adoption of the American Convention on Human Rights, the commission only applies the American Declaration to those member states that have not yet ratified the American Convention.
3. American Convention on Human Rights
Subsequent to the adoption of the American Declaration and the creation of the Inter-American Commission, the OAS followed the lead of the UN by promulgating binding human rights treaties. The first and most comprehensive OAS human rights treaty is the American Convention on Human Rights.22 The American Convention recognizes in its preamble that the principles set forth in the UDHR, the OAS Charter, and the American Declaration reflect the aspirations, purposes and goals for the American Convention.23 As of 31 December 2009, 24 of the 35 OAS member states are states parties to the American Convention.24 All Latin American states have ratified the American Convention. The USA, Canada and some English-speaking Caribbean states are not parties to the treaty. Trinidad and Tobago denounced the American Convention in 1998.
While the drafting of the American Convention was in progress, the UN General Assembly approved the texts of the International Covenant on Civil and Political Rights25 and the International Covenant on Economic, Social and Cultural Rights.26 At that time, the OAS member states were canvassed to establish whether or not they remained committed to the promulgation of a separate Inter-American human rights treaty. The delegates voted in favour of an OAS treaty that would not simply replicate the UN covenants. Aware of the realities of the region, the drafters adapted the regional instrument to enhance human rights protections within the unique circumstances of the Americas.27 When some state delegates suggested that the drafters more closely follow the wording of the UN covenants, the majority of delegates disagreed with that suggestion.28 In response, they argued that if the American states were to conclude a regional human rights treaty subsequent to the adoption of the UN treaties, ‘it was appropriate to introduce any modifications that were desirable in the light of circumstances prevailing in the American Republics.’29
The American Convention focuses almost exclusively on the protection of civil and political rights. The scope of the human rights enshrined in the convention is much broader than the original rights in the European Convention on Human Rights 195030 but narrower than the rights recognized by the UDHR or the American Declaration. The American Convention obligates states to respect and ensure 23 substantive rights. It protects traditional rights such as life, humane treatment, personal liberty, a fair trial, equal protection of the law, peaceful assembly, association, property, movement and residence, and the freedoms of religion, thought and expression, as well as freedom from slavery and ex post facto laws. It also protects the rights of the family and the child, and the rights to nationality, to a name, to compensation from the state when the person has been sentenced through a miscarriage of justice, and to the right to reply in the same medium in which an inaccurate or offensive statement has been made about the person. The convention’s only provision for economic, social and cultural rights specifies that states parties undertake progressive development by adopting legislative and other measures to achieve the ‘economic, social, educational, scientific and cultural standards’ set forth in the amended OAS Charter.31
After the adoption of the convention but before it received the requisite number of ratifications and accessions, Thomas Buergenthal, then Professor of Law at the University of Texas, was concerned that the broad reach of the convention would jeopardize state acceptance of the treaty.32 Although Buergenthal was strongly in favour of the American Convention, he believed that it should have concentrated on fewer and more basic rights in order to obtain the 11 state ratifications necessary for it to enter into force. He even published a critical essay on what he considered to be the unnecessarily ambitious American Convention,33 and he expressed this viewpoint in his human rights classes. The American Convention received the necessary ratifications in 1978, sooner than had been anticipated. The states parties to the convention were then to nominate the first judges to the Inter-American Court of Human Rights, an enforcement organ established by the American Convention. One day, while working in his office, Buergenthal received a telephone call from a very formal-sounding gentleman with a Spanish accent, who informed him that he was calling from the Costa Rican Embassy in Washington, DC, to inquire whether Buergenthal would allow Costa Rica to nominate him as a candidate for a seat on the Inter-American Court. Buergenthal was convinced that one of his students was playing a joke on him, but he could not be certain. He cautiously asked whether he could return the call. He then hung up and immediately verified the number the caller had given him. It was the number of the Costa Rican Embassy. He called back and accepted the nomination.34 He was elected, and he eventually served two terms, becoming the president of the court. In this way, Buergenthal became the first and only US citizen to serve on the Inter-American Court.
4. Enforcement Organs of the American Convention
Unlike the UDHR and the American Declaration, the American Convention empowered enforcement organs modelled on the organs of the already-established European human rights system. Like the original European system, the American Convention provided for two bodies to oversee compliance with the rights protected by the convention – the pre-existing Inter-American Commission on Human Rights and the newly constituted Inter-American Court of Human Rights.35 The American Convention, however, did not establish a means, such as that implemented by the Council of Europe’s Committee of Ministers, to monitor state compliance with Inter-American Court judgements.
The human rights enforcement authority of the Inter-American Commission and the Inter-American Court is subsidiary to the authority of the states’ domestic judicial systems. Individual petitioners must first exhaust domestic remedies, whenever possible, before bringing a complaint to the organs of the Inter-American system. Although international courts and quasi-judicial bodies may be empowered by treaty to enforce international human rights law, the first and foremost authorities to deal with claims of human rights abuse are the national authorities. The principle of subsidiarity, which underlies the Inter-American human rights system, ‘requires that problems be solved where they occur, by those who understand them best, and by those who are most affected by them’.36 Only when there are defects in the domestic system and its efforts are not effective can the case be referred to the regional enforcement bodies. The role of the Inter-American Commission and Court is to determine whether a state violated its internationally contracted human rights obligations. The commission and the court may not overturn domestic court decisions that applied national law, unless the procedures followed by the national courts were in violation of the international obligations that the states in their sovereignty agreed to assume by becoming parties to the treaties. If an individual alleges that there has been a violation of his or her rights under the American Declaration or the American Convention, the alleged victim can take his complaint to the Inter-American Commission on Human Rights. One of the principal advances of the American Convention is that it permits broadened individual access to the Inter-American Commission on Human Rights. In a reversal of traditional international law, the American Convention allows individuals to file complaints with the commission against a state upon the state’s ratification of the convention.37 Conversely, the American Convention provides that a state party must make an express declaration recognizing the competence of the commission to deal with state-against-state complaints.38 Thomas Farer, a former president of the Inter-American Commission, observed, ‘[s]urely this was to swallow a camel and shrink from a fly.’ He explained that it was inevitable that states would be confronted by individual complaints, whereas state-filed complaints ‘were improbable at any time, much less among members of a political and military alliance waging a Cold War’.39
Another progressive feature of the American Convention that is especially relevant to states that suffer from gross and systematic violations of human rights is that the locus standi to petition the Inter-American Commission is not limited to the individual victim or family members of the victim. Any person, group of persons, or non-governmental entity that is legally recognized in an OAS member state, even though it is not the direct victim of the abuse, may file a petition alleging that human rights have been violated.40 This provision has proved to be especially important in the Inter-American system, where victims or their family members may be too intimidated or indigent to submit a petition. As complainants and their lawyers have, at times, become victims of human rights abuse, non-governmental organizations (NGOs) often file the petitions with the commission, as they are less susceptible to threats of retaliation. NGOs are also more likely to have the necessary resources to carry a case forward than the individuals involved.
4.1 The Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights represents all member states of the OAS. It is composed of seven commissioners who are elected at the OAS General Assembly by secret ballot of all OAS member states. Commissioners serve in their individual capacities;41 they do not represent states. Although commissioners must be nationals of an OAS member state, no two commissioners can be from the same state.42 The Inter-American Commission is located in Washington, DC, at the OAS headquarters. The commission’s secretariat, composed of attorneys and human rights specialists, works full-time, but the commission meets on only a part-time basis. The commission fulfils many roles in the Inter-American human rights system. The American Convention charges the commission with promotion of respect and defence of human rights in the Americas. The commission has interpreted this authority broadly and creatively to have the most impact possible. The commission conducts country studies of the human rights situation in states where there are reports of massive human rights violations; prepares thematic studies focusing on the violations of particular rights throughout the Americas, and submits an annual report to the OAS General Assembly.43 Commissioners may serve as thematic rapporteurs for issues such as freedom of speech or religion, or the rights of particularly vulnerable groups such as migrant workers, incarcerated persons, indigenous groups, and women and children.
A primary function of the commission is the consideration of individual petitions complaining of human rights violations in any OAS member state. In 2008, the Inter-American Commission received 1,323 petitions.44 All individual complaints alleging human rights violations against states must first be brought to the Inter-American Commission. States and petitioners do not have the option to waive proceedings before the commission.45 If the state named in the complaint has not ratified the American Convention on Human Rights, as is the case with the USA and Canada, the commission will determine whether the state violated the protections set forth in the American Declaration. If the state has ratified the American Convention, the commission will determine whether the state violated the rights protected by the American Convention.
When the commission receives a petition alleging human rights abuse in the jurisdiction of an OAS member state, the commission will determine whether the petition meets its admissibility requirements. To be admissible, the petition must state facts that establish a violation of the rights set forth in the American Convention, or, for those states that have not yet ratified the Convention, of the rights delineated in the American Declaration. In addition, petitioners must provide the required personal information and must show that the victim, when possible, has exhausted all available remedies in the state where the violation occurred. The petition must be lodged with the commission within 6 months from the date of notification of the final domestic decision, and the subject of the petition cannot be pending before another international proceeding.46 If the petition does not meet the requirements of admissibility, the commission may request that the petitioner provide any necessary additional information. The commission will communicate with both the petitioners and the state before making a formal decision on admissibility.