The ABC of the Inter-American Human Rights System for ...

Annex to the ABC of Human Rights for Development
Cooperation: The Inter-American Human Rights
System (The Inter-American System) (update: July
2009)
Introduction
Several regional organisations have
developed human rights instruments and
institutions, reflecting the culture, tradition and
history of the respective region. These
regional human rights systems are an
important part of human rights protection and
complement the international human rights
system.
The Inter-American Human Rights System
was developed by the Organisation of
American States (OAS). Based in Washington
D.C., the OAS has thirty-five member states
from the Americas. Among OAS objectives
are the strengthening of peace and security,
the promotion and consolidation of democracy
as well as the promotion of human rights.
practitioners working in the Inter-American
context. Our cross-sectoral project has
created a similar tool on the African Human
Rights System.
Any questions or suggestions are appreciated!
This e-info-tool consists of four parts,
dealing with
1. The core Inter-American human rights
instruments
2. Inter-American human rights reporting and
monitoring institutions
3. Interpretation und operationalisation of
human rights in the Inter-American context
4. Inter-American special mechanisms
5. Additional links
This tool, complementary to our ABC of
Human Rights for Development Cooperation,
explains the basic features of the Inter-
American System relevant for development
in cooperation with

1. The core Inter-American human
rights instruments
The American Convention on Human Rights
of 1969 (American Convention), based on the
OAS Charter of 1948 and the American
Declaration on the Rights and Duties of Man
of 1948 (American Declaration), constitutes
the core of the Inter-American Human Rights
System (Inter-American System).
The Inter-American System emerged with the
adoption of the American Declaration. Just as
the Universal Declaration of Human Rights
(1948), it contains civil and political as well as
economic, social and cultural rights. In
addition to those, it expressly imposes duties
on individuals, such as the duty to vote, the
duty to receive instruction and the duty to
obey the law. Again, similar to the Universal
Declaration, it was adopted as a declaration,
not as a legally binding treaty. However, the
Inter-American Court of Human Rights held in
its Advisory Opinion OC-10/89 that those
rights of the American Declaration that are
also guaranteed by the OAS Charter do
constitute legal obligations for all OAS
member states.
The American Convention builds on the
American Declaration, but is almost
exclusively concerned with civil and political
rights. It contains only one provision (Art. 26)
on the progressive realization of economic,
social and cultural rights through domestic
measures and international cooperation. The
American Convention is legally binding on the
twenty-five states that have ratified it. The
USA and Canada, for example, have not yet
done so.
The Inter-American System has gradually
expanded with the adoption of two Additional
Protocols to the American Convention. The
Protocol on Economic, Social and Cultural
Rights (Protocol of San Salvador, 1988)
integrates the protection of those rights in the
Inter-American System. Similar to the UN
human rights system, the Protocol of San
Salvador provides for a reporting procedure
under which states submit periodic reports to
the Secretary-General of the OAS. Out of
thirty-five OAS member states, fourteen have
ratified the Protocol so far. The Protocol to
Abolish the Death Penalty was adopted in
1990, and to date has been ratified by eleven
states.
Apart from these instruments, there are a
number of other regional human rights
treaties.
The core Inter-American human rights
instruments (in chronological order) and
the number of ratifying states
American Declaration on the Rights and Duties of
Man
American Convention on Human Rights
25
Inter-American Convention to Prevent and Punish
Torture
17
Inter-American Convention on the Forced
Disappearance of Persons
13
Inter-American Convention on the Prevention,
Punishment and Eradication of Violence against
Women
32
Inter-American Convention on the Elimination of All
Forms of Discrimination against Persons with
Disabilities
17
Last Update: July 2009
A universal instrument particularly relevant in
the Inter-American context is the International
Labour Organisation’s (ILO) Convention 169
concerning Indigenous and Tribal Peoples in
Independent Countries (1991), predominantly
ratified by Latin American states. It recognises
the collective rights of indigenous and tribal
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peoples such as the right to be consulted on
issues of their concern (Art. 6), the right to
decide their own priorities for the process of
development as it affects their lives etc. (Art.
7) or the right not to be discriminated against
in the enjoyment of human rights (Art. 3).
Relevance for development cooperation
By ratifying international or regional human
rights treaties, partner countries accept certain
legally binding obligations. These are
essential for development strategies not only
because they are the legal basis for
internationally recognized development goals
(see Millennium Declaration). They also
provide useful guidance as to the way these
goals can be reached. Thus, they should be
guiding principles for setting priorities in
national development goals and processes.
The treaties oblige partner countries to
respect, protect and fulfil human rights. They
have to abstain from discrimination in access
to primary education. They have to ensure
that non-discriminatory access to basic health
care is secured even though the health
system has been privatised. Governments
have to issue policies and programmes and
undertake measures to progressively
establish, for example, a fair judicial system or
make available a sufficient number of
educational or health institutions that are
accessible to all members of the population
and operate in an acceptable and culturally
adequate manner. The obligations arising
from regional human rights treaties should be
addressed in political dialogue. They should
also be part of country and sector strategies
and be integrated into programming. If a
partner country has not ratified fundamental
regional human rights treaties or protocols
thereto, political dialogue can be an
instrument to urge for ratification.
Resources
Status of ratification, per treaty
2. Human rights reporting and
monitoring institutions
Two institutions monitor human rights within
the Inter-American System: the Inter-
American Commission of Human Rights (the
Commission) and the Inter-American Court of
Human Rights (the Court).
The Commission
The Commission, established in 1959, is
based in Washington D.C. and consists of
seven independent experts (commissioners)
who act in their individual capacity. The
Commission receives and investigates
individual complaints alleging human rights
violations, conducts on-site visits, reports on
the general human rights situation in OAS
member states, and requests advisory
opinions of the Court regarding the
interpretation of any regional or international
human rights treaty applicable to American
states.
The two main procedures of the Commission
under the American Convention are the
petition procedure and the reporting
procedure.
The petition procedure
There are two complaints procedures: an
inter-state complaints and an individual
complaints procedure.
The inter-state complaints procedure (Art. 45,
American Convention) has been accepted by
ten member states. To date, it has been
invoked only once by Nicaragua v. Costa
Rica. The Commission declared the complaint
to be inadmissible.
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The Commission accepts two different types
of individual complaints: one is governed by
the American Convention. The second is
governed by the OAS Charter. In the
following, we will elaborate on the former only.
Under the individual complaints procedure
governed by the American Convention, any
person, group of persons or NGO on behalf of
any of the former may submit a petition
alleging violations of the rights protected in:
the American Convention, the American
Declaration, Arts. 8 and 13 of the Protocol of
San Salvador, the Protocol to Abolish the
Death Penalty, the Inter-American Convention
to Prevent and Punish Torture, the Inter-
American Convention on Forced
Disappearance of Persons, and/or the Inter-
American Convention on the Prevention,
Punishment and Eradication of Violence. The
Commission can only process individual
cases against states that have accepted the
contentious jurisdiction of the Court.
The procedure for filing an individual petition
is governed by the Statute, the rules of
procedure of the Commission and Articles 44
and 46 of the American Convention. The
Commission will only accept a petition if a
number of formal requirements have been met
(see Arts. 27 and 28 of the rules of
procedure), particularly having exhausted
domestic remedies. If this is the case, it will
send the petition to the state party with a
request for relevant information. During the
proceedings, the Commission asks each party
to comment on the response of the other
party. In addition, the Commission may carry
out its own investigations, conduct on-site
visits, request further information from the
parties, etc. Usually, it then holds a hearing
with both parties and asks them to present
their respective factual and legal arguments.
As a matter of principle, the Commission will
firstly offer the parties to assist in negotiating a
friendly settlement. If such a settlement was
not achieved, and the Commission considers
having sufficient information to decide on the
merits, it prepares a confidential report which
includes its conclusions and
recommendations. It then concedes the state
a period of time to remedy the situation and to
comply with the recommendations. At the
same time, it notifies the petitioner of the
adoption of the report and allows one month
to present his/her position as to whether the
case should be submitted to the Court.
Upon expiration of the time granted to the
state, the Commission refers the case to the
Court if the state has not complied with the
recommendations of the Commission and
accepted the contentious jurisdiction of the
Court, unless the absolute majority of its
members decides otherwise (see, for
example, Guy Malary v. Haiti).
The reporting procedure
The only state-reporting procedures within the
Inter-American System are subject to the
Protocol of San Salvador (see above 1.) and
to the Inter-American Convention on Violence
Against Women. Article 10 of the latter
requires the state to report on measures
regarding the prevention and prohibition of
violence against women to the Inter-American
Commission of Women.
Apart from that, the Commission publishes
annual reports on the state of human rights
within OAS member states. It also concludes
reports on the human rights situation in
singular countries on the basis of on-site
visits. Finally, it issues reports on specific
human rights topics, such as on access to
justice as a guarantee of economic, social and
cultural rights or on access to justice for
women victims of violence in the Americas.
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Resources
a) Case-law of the Commission
b) Annual reports of the Commission
c) Country and thematic reports of the
Commission
The Court
The Court was established in 1979 as an
autonomous institution based on the American
Convention and it is seated in San José,
Costa Rica. It consists of the Secretariat and
seven judges. The judges convene in four
ordinary sessions per year. Currently,
extraordinary sessions are convened in
different OAS member states in order to
enhance the knowledge on the Inter-American
System.
The Court has both advisory and contentious
jurisdiction. The advisory jurisdiction of the
Court is mandatory for all state parties to the
American Convention. In addition, any OAS
member state (even if it is not a party to the
American Convention) or OAS organ may
consult the Court on the interpretation of the
American Convention or any other regional or
international human rights treaty applicable to
American states. Advisory opinions are not
legally binding, but provide an authoritative
interpretation of the legal questions
concerned. The contentious jurisdiction of the
Court needs to be accepted separately by
each member state of the American
Convention. Currently, twenty-two member
states have done so.
Contentious proceedings before the Court
encompass an individual complaints
procedure. To date, only state parties and the
Commission have the right to submit a case
directly to the Court. Usually, the Commission
does so on behalf of individuals or groups of
individuals, sometimes upon request of an
NGO, acting on behalf of individuals.
The Court’s Statute, its rules of procedure and
the American Convention govern the
procedure for filing an application. It must be
filed at the Secretariat of the Court. If the
basic admissibility requirements are met, the
Court notifies the parties involved and gives
them time to present their arguments. The
President will then open oral proceedings,
during which the parties or the Court may
suggest a friendly settlement. The Court may
also issue provisional measures in order to
prevent irremediable harm to a person. Any
decision of the Court is binding and final. In
case the Court found a violation, it can award
reparations.
Other institutions
Other institutions within the Inter-American
context that address human rights issues are:
the Inter-American Commission of Women,
the Inter-American Children's Institute, the
Inter-American Indian Institute and the Inter-
American Institute of Human Rights.
Relevance for development cooperation
To identify human rights challenges,
development cooperation should draw on the
Commission’s human rights reports and the
case law of both the Commission and the
Court. These constitute the authoritative voice
of regional human rights supervisory
institutions. In addition, development
cooperation can build on the conclusions and
recommendations of those bodies, in political
dialogue, country and sector strategies and
programming. Development cooperation may
also support individuals or groups of
individuals in filing a case before the Inter-
American System or the State in implementing
a judgement of the Court. By doing so,
development cooperation supports the partner
country in fulfilling its related obligations and
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empowers individuals to develop a
responsible awareness on their rights.
Resources
a) Case-law of the Court, by country
b) Advisory Opinions of the Court
c) Provisional Measures
3. Interpretation and
operationalisation of human
rights in the Inter-American
context
The case law of the Commission and the
Court (see above 2.) constitute the primary
source of interpretation of Inter-American
human rights treaties. Although existing case
law deals primarily with civil and political
rights, there are some cases concerned with
economic, social and cultural rights. In the
case of Jorge Odir Miranda Cortez et al. v. El
Salvador, for example, the Commission
received a petition filed on behalf of claimants
who are carriers of HIV/AIDS. In the case of
Awas Tigni v. Nicaragua, the Court held that
the right to property included the right of
indigenous peoples to protection of their
ancestral lands.
Other valuable sources of interpretation are
the advisory opinions of the Court (see, for
example, OC-1/82 with respect to the
applicability of international treaties and OC-
10/89 regarding the binding nature of the
American Declaration).
In addition, the annual, country and thematic
reports of the Commission contribute to the
interpretation and operationalisation of human
rights. The latest country report on Bolivia, for
example, deals with the rights of different
groups of persons in the context of
strengthening democracy.
Relevance for development cooperation
The country reports of the Commission give a
comprehensive overview on the respective
human rights situations, based on regional
human rights standards. They provide a
valuable source of information with regard to
the realisation of those standards and may
identify useful starting points for cooperation
activities aiming at improving the human rights
situation in a given country. The advisory
opinions of the Court are an authoritative
interpretation of particular legal questions.
They usually define the scope of states’ legal
obligations under regional and international
human rights treaties and can thus give
guidance for policy and issues to be taken up
in political dialogue. The same holds true for
judgements of the Court.
Resources
Annual, country and thematic reports of the
Commission.
More case law relating specifically to
economic, social and cultural rights can be
found here (select ‘Inter-American
Commission on Human Rights’ from the drop
down menu). Cases of the Court relating to
this set of rights are, for example, Cantos v.
Argentina (right to property), Five Pensioners
v. Peru (right to property and Art. 26,
American Convention) and Comunidad
Indigena Yakye Axa v. Paraguay (inter alia
right to property regarding ancestral lands).
4. Inter-American special
mechanisms
The Commission has established several
Special Rapporteurs to monitor OAS member
states’ compliance with Inter-American human
rights standards. These are, for example, the
Special Rapporteur on Indigenous People, the
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Special Rapporteur on the Rights of Women
and the Special Rapporteur on Freedom of
Expression. In addition, the Commission has
established a separate unit on human rights
defenders.
The Special Rapporteurs issue reports on
country situations on the basis of on-site
visits, e.g. the report of the Special
Rapporteur on Indigenous People on justice
and social inclusion in Guatemala, and on
thematic issues relevant to their mandate, e.g.
the annual report of the Special Rapporteur on
Freedom of Expression. The Special
Rapporteurs also give advice in proceedings
before the Court (amicus curiae) and promote
human rights through other activities (provide
legal advice to states, participate in
international for a, trainings etc.).
Relevance for development cooperation
Similar to the reports issued by the
Commission, the reports of the Special
Rapporteurs constitute an important source of
information on the status of human rights with
regard to a specific topic or country. They also
reflect current human rights debates within the
national, regional or even international setting.
They reveal evolving regional human rights
standards, and can thus be used to formulate
targets, benchmarks and indicators for
programming in different sectors, but also in
political dialogue.
Resources
a) Reports by the Special Rapporteur on the
Rights of Women, by country
b) Special Rapporteur on Freedom of
Expression, annual and country reports
c) Special Rapporteur on Indigenous People,
annual and country reports
5. Additional links
German Technical Cooperation (GTZ), Cross-
Sectoral Project “Realising Human Rights in
Development Cooperation”
http://www.gtz.de/human-rights
OHCHR International Treaties
http://www2.ohchr.org/english/law/index.htm#i
nstruments
FAQs of the OHCHR on a Human Rights
Based Approach to Development Cooperation
http://www.ohchr.org/Documents/Publications/
FAQen.pdf
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7
Contact
Juliane Osterhaus
Tel. 06196 79 1523
juliane.osterhaus@gtz.de
www.gtz.de/human-rights
Eschborn, July 2009