Jurnal Internasional OAS

8/18/2019 Jurnal Internasional OAS

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1. The Inter-American system for Human Rights is one of the three majorregional human rights systems, along with the European and the African humanrights arrangements. It is a creation of the Organization of American States (OAS)and has evolved considerably over the past decades. The system as such is atypical.The Inter-American System of Human Rights not a single homogenous regime, butrather an intricate set of norms, institutions and mechanisms. First, it rests upontwo overlapping instruments, namely the American Declaration on the Rights and

Duties of Man (1948)1 and the American Convention on Human Rights (1969)2.Second, the inter-American system is bipartite since two institutions – the Inter-

American Commission and the Inter-American Court – are in charge of supervisingthe obligations of the members of the OAS. As it is, the current configuration ofthe inter-American system was largely unplanned. In other words, it wasconstructed piece by piece following the slow rhythm of diplomatic negotiationsand temporary arrangements that have eventually become permanent.

2. With the understanding that double dualism – both institutional and normative – is the key to comprehending the inter-American system as a whole3, the first

! Ludovic Hennebel is a Fellow at the Magna Carta Institute, Global Research Fellow at the New YorkUniversity School of Law affiliated with the Center for Human Rights and Global Justice (BAEFFellowship) and Fellow at the University of Brussels School of Law affiliated with the PerelmanCenter for Legal Philosophy. He is the author of a 737 page French monograph on the AmericanConvention of Human Rights titled “La Convention américaine des droits de l’homme: Mécanismesde protection et étendue des droits et libertés,” published in 2007 by Bruylant Publisher. The authorthanks Dafne Cilia, Séverine Calza, and Shaina Wright for valuable assistance.1 American Declaration of the Rights and Duties of Man, OAS Res. XXX, International Conferenceof American States, 9th Conf., OAS Doc. OEA/Ser.L/V/I. 4 Rev. XX (1948) [hereinafter AmericanDeclaration].2 American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into force July18, 1978) [hereinafter American Convention].3 On the inter-American system of human rights in general, see inter alia: H. FAUNDEZ LEDESMA, ElSistema Interamericano de Protección de los Derechos Humanos: Aspectos Institucionales yProcesales (Inter-American Institute of Human Rights 2004); D. HARRIS & S. LIVINGSTONE (eds.),The Inter-American System of Human Rights (Clarendon Press 1998); S. DAVIDSON, The Inter-American Human Rights System (Darmouth 1997); A.A. CANÇADO TRINDADE, “El Sistema

The Inter-American System for Human Rights:

Operation and Achievements

By Ludovic Hennebel

Research Prof. F.N.R.S., Université Libre de Bruxelles

[email protected]

The final version of this paper was published in International Human

Rights Law in Global Context, F. Gomez Isa and K. de Feyter (Eds.),

HumanitarianNet, Bilbao, 2009


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section of this chapter provides an overview of the institutional and normativeframework of the Inter-American Human Rights System. This system has produced

a creative and stimulating legal framework. Inter-American human rights law, asapplied, interpreted, and developed by the Commission and the Court, has reacheda level of maturity and authority that can longer be ignored by academic literature.The achievements of the Inter-American Human Rights System, mainly throughinter-American case law, are the focus of the second section of this chapter.

1 The operation of the Inter-American System for Human Rights

3. This first section describes briefly the historical background behind the Inter-American System for Human Rights and presents an overview of the inter-American institutions, the inter-American human rights instruments and the inter-American human rights mechanisms.

1.1.

BACKGROUND 4. The OAS4, as a regional organization, aims inter alia at strengthening the peaceand security of the continent and ensuring the pacific settlement of disputes thatmay arise among member States5. Its charter, known as the Bogotá Charter, was

Interamericano de Protección de los Derechos Humanos (1948-1995): Evolución, Estado Actual yPerspectivas”, in Derechos Internacional y Derechos Humanos / Droit international et droits del’homme (D. Bardonnet & A.A. Cançado Trindade Eds Académie de droit international de LaHaye/Instituto Interamericano de Derechos Humanos 1996); T. BUERGENTHAL & D. SHELTON,Protecting Human Rights in the Americas: Cases and Materials (Engel 1995); C. M EDINA QUIROGA,The Battle of Human Rights: Gross Systematic Violations and the Inter-American System (Kluwer

1988); T. BUERGENTHAL & R. NORRIS, Human Rights: The Inter-American System (Oceana 1982).See also: A.A. CANÇADO TRINDADE, Le système inter-américain de protection des droits de l'homme:état actuel et perspectives d'évolution à l'aube du XXIème siècle, 46 Annuaire français de Droitinternational (2000) 547; D. HARRIS, Regional Protection of Human Rights: The Inter-AmericanAchievement, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra, 1; A.A. CANÇADO TRINDADE, Current State and Perspectives of the Inter-American System ofHuman Rights Protection at the Dawn of the New Century, 8 Tul. J. Int’l & Comp. L. 5 (2000); A.ACANÇADO TRINDADE, The Evolution of the Organization of American States (OAS) System of HumanRights Protection: An Appraisal, 26, GYIL, 498 (1982). See also the chapters on the inter-Americansystem in: Th. BUERGENTHAL, D. SHELTON and D. STEWART, International Human Rights in anutshell (Westgroup 2004), 221; H. STEINER , Ph. ALSTON and R. GOODMAN, International HumanRights in Context: Law, Politics, Morals (Oxford University Press 2007), 1020.4 On the OAS, see: D. SHEININ, The Organization of American States (Transaction Publishers 1996);V.P. VAKY & H. MUNOZ, The Future of the Organization of American States (Twentieth CenturyFund Press 1993); O. STOETZER , The Organization of American States: An Introduction (Frederick A.Praeger 1966); Ch. FENWICK , The Organization of American States: The Inter-American RegionalSystem (Kaufman 1963); A. THOMAS, The Organization of American States (Southern MethodistUniversity Press 1963); J. DREIER , The Organization of American States and the Hemisphere Crisis(Harper and Row Publishers 1962).5 Article 2 of the OAS Charter. Cf. Article 52 of the United Nations Charter states that: “1. Nothing inthe present Charter precludes the existence of regional arrangements or agencies for dealing with suchmatters relating to the maintenance of international peace and security as are appropriate for regionalaction provided that such arrangements or agencies and their activities are consistent with thePurposes and Principles of the United Nations. 2. The Members of the United Nations entering intosuch arrangements or constituting such agencies shall make every effort to achieve pacific settlementof local disputes through such regional arrangements or by such regional agencies before referringthem to the Security Council. 3. The Security Council shall encourage the development of pacificsettlement of local disputes through such regional arrangements or by such regional agencies either


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drafted during the ninth Inter-American Conference6, which took place in Bogotáfrom March 30th to May 2nd 1948.7 All the thirty five American states have ratified

it and are therefore members of the organization8

. The Charter does not containmany references to human rights. The most important human rights related provisions are Article 3(l), which states that “American states proclaim thefundamental rights of the individual without distinction as to race, nationality,creed, or sex” and Article 17, which calls the states to “respect the rights of theindividual and the principles of universal morality” while developing “its cultural,

political and economic life freely and naturally”. The “fundamental rights” referredto by the Charter are not defined. However, during the Conference of Bogotá, theAmerican States adopted the American Declaration on the Rights and Duties ofMan9, the first stone of the inter-American human rights edifice, proclaiming a richand substantial human rights catalogue (see infra).

5. The development of the inter-American system for the protection of humanrights took a significant turn in 1959, with the creation of the Inter-AmericanCommission on Human Rights10. Concerned by the massive human rights abuses

perpetrated during the Trujillo regime in Dominican Republic, as well as duringFidel Castro’s rise to power in Cuba, and inspired by the emerging European andglobal human rights systems, the OAS’s governments called for the adoption of anAmerican Convention and for the institutionalization of human rights bodies11.

on the initiative of the states concerned or by reference from the Security Council. 4. This Article inno way impairs the application of Articles 34 and 35”.6 First International Conference of the American States (Washington 1889); Second ICAS (Mexico,1901-1902) ; Third ICAS (Rio de Janeiro, 1906) ; Forth ICAS (Buenos Aires, 1910) ; Fifth ICAS(Santiago, 1923) ; Sixth ICAS (La Havana, 1928) ; Seventh ICAS (Montevideo, 1933) ; Eighth ICAS

(Lima, 1938) ; Ninth ICAS (Bogotá, 1948).7 Since it entered into force in 1951, the Bogotá Charter has been amended four times. Theseamendments aimed at strengthening the structure of the Organization and the principles of collectivesecurity, regional solidarity, non-intervention, as well as the democratic and human rights principlesasserted in the Declaration. See Th. BUERGENTHAL & R. NORRIS, supra note 3, 37-44.8 The OAS original Member States (1948) are as follows: Argentina, Bolivia, Brazil, Chili, Colombia,Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico,

Nicaragua, Panama, Paraguay, Peru, the United States, Uruguay, Venezuela. The States that joinedlater are: Barbados, Trinidad and Tobago (1967); Jamaica (1969); Grenada (1975); Surinam (1977);Dominica, St. Lucia (1979); Antigua and Barbuda, St. Vincent and Grenadines (1981); Bahamas(1982); St. Kitts and Nevis (1984); Canada (1990); Belize, Guyana (1991). Cuba, one of the foundingmembers, was suspended in 1962.9 The States also adopted the Inter-American Charter of Social Guarantees that underlined the keyrole of work in society and proclaimed the minimal rights to which the workers of the Continent areentitled. This Charter, however, never entered into force. See on the social, economic and socialrights in the inter-American system of human rights: M. CRAVEN, The Protection of Economic, Socialand Cultural Rights under the inter-American System of Human Rights, in The Inter-AmericanSystem of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 289.10 Ch. CERNA, The Inter-American Commission on Human Rights: Its Organization and Examinationof Petitions and Communications, in The Inter-American System of Human Rights (D. Harris & S.Livingstone eds.) supra note 3, 65-114.11 The Fifth Meeting of Consultation of Ministers of Foreign Affairs took place in Santiago de Chilefrom August 12th to 18th 1959. It concluded that considering the progress that had been maderegarding human rights since the adoption of the American Declaration, and in view of themechanisms of protection that were being implemented by the United Nations and the Council ofEurope, it was appropriate to envisage the adoption of an American convention on human rights

backed by monitoring institutions. The Inter-American Council of Jurists was entrusted with themission of preparing a draft Convention on human rights and “a draft convention or draft conventions


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They decided to create the Inter-American Commission on Human Rights, whichwas charged with monitoring human rights in the hemisphere, at least until an

American convention on human rights could be adopted12

. Indeed, the politicalcontext in the region prevented the adoption of such convention for ten years. Inthe meantime, the Commission took office in June 1960 with the function “to

promote respect for human rights” understood “to be those set forth in theAmerican Declaration of the Rights and Duties of Man” 13. The Commission wasnot, however, created by treaty, but instead simply by the resolution of a political

body14. This origin confirms the temporary nature of the institution and alsounderlines its extreme institutional weakness since it could have been easilyabolished by the member states15. The Buenos Aires Protocol16, which amended theOAS Charter and entered into force in 1970, remedied that weakness byinstitutionalizing the Inter-American Commission as an OAS Charter organ incharge of promoting the observance and protection of human rights. The Inter-

American Commission on Human Rights thus finally attained the “constitutionallegitimacy” that it lacked17.

6. In November 1969, in San José, Costa Rica, the American States finallyadopted the American Convention on Human Rights, which did not enter into forceuntil July 18th 1978, and created the Court, which began to operate on September3rd 1979. According to the Convention both the Commission and the Court havecompetence with respect to matters relating to the fulfillment of the commitmentsmade by the States Parties to the Convention. The time-lags between the creationof the Commission in 195918, the adoption of the Convention in 1969 and the

on the Creation of an Inter-American Court for the Protection of Human Rights and of other

organizations appropriate for the protection and observance of those rights.” See the complete text ofthe Declaration at the Fifth Meeting of Consultation of Ministers of Foreign Affairs, Santiago, Chile,August 12 through 18, 1959, Final Act. Document OEA/Ser.C/II.5, 10-11.12 Article 150 of the OAS Charter, as amended by the Protocol of Buenos Aires states that “Until theInter-American Convention on Human Rights, referred to in Chapter XVI, enters into force, the

present Inter-American Commission on Human Rights shall keep vigilance over the observance ofhuman rights”.13 Article 2, 1960 Commission’s Statute.14 See Resolution VIII of the Fifth Meeting of Consultation of Ministers of Foreign Affairs. ParagraphII of Resolution VIII resolved: To create an Inter-American Commission on Human Rights composedof seven members elected as individuals by the Council of the Organization of American States from

panels of three names presented by the governments. The Commission, which shall be organized bythe Council of the Organization and have the specific functions that the Council assigns to it, shall becharged with furthering respect for such rights. Res. VIII, Fifth Meeting of Consultation of Ministersof Foreign Affairs, Final Act, Santiago, Chile (12-18 Aug. 1959). OAS Off. Rec. OEA/ Ser.F/II.5,(Doc. 89, English, Rev.2) Oct. 1959 at 10-11.15 Th. BUERGENTHAL, The Revised OAS Charter and the Protection of Human Rights, 69 AJIL 828 at833 (1975).16 Protocol of Amendment to the Charter of the Organization of American States (also called Protocolof Buenos Aires), signed the 27th Feb. 1967 and entered into force the 12 th March 1970, OAS/Ser.A/1.17 Ch. CERNA, The Inter-American Commission on Human Rights: Its Organization and Examinationof Petitions and Communications, in The Inter-American System of Human Rights (D. Harris & S.Livingstone eds.) supra note 3, 65, at 68.18 From the moment it was created until the Convention entered into force, the Commission created in1959 had already developed its activities and played a substantial role not only regarding the adoptionof reports, but also concerning individual petitions. From the time of the creation of the Commissionuntil the adoption of the Convention, the Commission had already worked on series of individual


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creation of the Court in 1979 explain the two overlapping inter-American systems:the first one is based on the Declaration and the operation of the Commission; the

second one is based on the Convention and on the operation of the Commission, asa quasi-judicial body, and of the Court, autonomous judicial body19.

1.2. THE I NTER -AMERICAN HUMAN R IGHTS I NSTITUTIONS: A COMMISSIONAND A COURT

7. In the current configuration of the Inter-American System of Human Rights thetwo main human rights organs20 are the Inter-American Commission and the Inter-American Court.

1.2.1. The Inter-American Commission of Human Rights

8. The Commission’s headquarters is located in Washington D. C., where it meetsin regular and special sessions21. The seven members of the Commission areelected by the General Assembly of the OAS from a list of candidates proposed bythe member states’ governments. The members of the Commission are elected in a

personal capacity among persons of the highest moral standards and recognizedcompetence in the field of human rights, and must be nationals of a member stateof the OAS. Their four-year mandate can be renewed only once22.

complaints concerning such states as Argentina, Chile, El Salvador, Guatemala, Uruguay andParaguay, among which none was eager to ratify the Convention. T. F ARER , The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox, in The Inter-AmericanSystem of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 40-41.19 Indeed, when the Convention was drafted, the following question arose: was it more appropriate tolimit the jurisdiction of the Commission to the one ascribed by the Convention or to maintain itsexisting jurisdiction and expand it accordingly? Formally, it would have been more efficient tochoose the first solution. But politically, as former President of the Inter-American Commission onHuman Rights (1976-1983) Tom Farer explains, it would have been problematic as States couldmerely abstain from ratifying the Convention to escape any sort of supervision regarding compliancewith human rights obligations on their territory. T. FARER , The Rise of the Inter-American HumanRights Regime: No Longer a Unicorn, Not Yet an Ox, in The Inter-American System of HumanRights (D. Harris and S. Livingstone eds.) supra note 3, 39-42.20 See also : V. GOMEZ, The Interaction between the Political Actors of the OAS, the Commission andthe Court, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supranote 3, 173.21 On the Inter-American Commission of Human Rights, see: See Ch. CERNA, The Inter-AmericanCommission on Human Rights: its Organization and Examination of Petitions and Communications,in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 65;B. SANTOSCOY, La Commission interaméricaine des droits de l’homme et le développement de sacompétence par le système des pétitions individuelles (P.U.F. 1995); C. GROSSMAN, Proposals toStrengthen the Inter-American System of Protection of Human Rights, 32 Ger. Y.B. Int'l L. 264(1989) ; COMISIÓN I NTERAMERICANA DE DERECHOS HUMANOS, Diez Años de Actividades--1971-1981(1982); A.A. CANÇADO TRINDADE, The Evolution of the OAS System of Human Rights Protection:An Appraisal, 25 Ger. Y.B. Int'l L. 498 (1982); A.P. SCHREIBER , The Inter-American Commission onHuman Rights (A.W. Sitjthoff & Leyden eds., 1970); K. VASAK , La Commission interaméricaine desdroits de l’homme (L.G.D.J. 1968).22 See Articles 34-38 of the American Convention and Articles 2-15 of the Commission’s Statute.


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9. Created in 1959 at the Fifth Meeting of Consultation of Ministers of ForeignAffairs23 held in Santiago del Chile, the Commission was “an autonomous organ of

the Organization of American States, whose principal functions are to promote theobservance and defense of human rights and to serve as an advisory body of theOrganization in this area”.24 As mentioned above, the Buenos Aires Protocol,amending the Bogotá Charter in 1970, transformed the Commission into an organof the OAS. Following the adoption of the American Convention in 1969, theCommission began to serve its dual roles. First, the Commission remained an OASCharter organ, which performed various functions relevant for the 35 OASmembers. Second, the Commission became a conventional quasi-judicial bodywhich has jurisdiction to apply and interpret the Convention and which performsfunctions relevant for the twenty-four States Parties to the Convention. Year afteryear, the Commission shaped its own functions and imposed its authority over theOAS and its members. The Commission mentioned by the 1969 American

Convention was the one that had been created in 1959. It had been created hastily,and was later absorbed and recognized by the Buenos Aires Protocol. Yet, by theterms of the Convention, this Commission would only have jurisdiction overratifying countries. Refusing to abandon its jurisdiction over non-ratifying states,the Commission “proceeded to draft a new statute and regulations consistent withthe view that the Convention’s activation resulted simply in adding a second sort of

jurisdiction to the Commission’s armory.”25 The new Statute of the Commissionwas adopted by the General Assembly of the OAS in 1979, thus confirming thedual functions of the Commission as a Charter organ on one hand and as aConvention organ on the other 26.

10. As a Charter organ, the Commission’s functions are: to raise awareness of

human rights among the peoples of the America; to make recommendations to thestates concerning the adoption of progressive measures in favor of human rights intheir legislation, constitutional provisions and international commitments, as wellas appropriate measures to further observance of those rights; to prepare studies orreports; to request that the governments provide reports on the measures the humanrights related measures they adopt ; to respond to inquiries made by any memberstate through the General Secretariat of the Organization on matters related tohuman rights and to provide those states with the advisory services they request ; tosubmit an annual report to the General Assembly of the Organization; and toconduct on-site observations, with the consent or at the invitation of thegovernment in question27. Those functions are general and concern all the 35

23 See the complete text of the Declaration at the Fifth Meeting of Consultation of Ministers ofForeign Affairs, Santiago, Chile, August 12 through 18, 1959, Final Act. Document OAS/Ser.C/II.5,

pp. 4-6.24 Article 1 of the Commission’s rules of procedure.25 T. FARER , The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yetan Ox, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note3, 40-41.26 Id. 31-64. See also D. HARRIS, Regional Protection of Human Rights: The Inter-AmericanAchievement, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 1-29. C. MEDINA, The inter-American Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a Joint Venture, 12 Human Rights Quarterly 443(1990).27 Article 18 of the Commission’s Statute.


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members of the OAS. In addition regarding those states that are not party to theAmerican Convention, the Commission has the power, after the exhaustion of

domestic remedies, to examine communications and any other availableinformation deemed pertinent to address the government concerned and to makerecommendations when appropriate. The states that have not ratified theConvention will respond before the Commission for the alleged violation of therights set forth in the American Declaration. Article 1 of its Statute specifically

provides that for the states not party to the Convention, human rights must beunderstood as the rights set forth in the American Declaration of the Rights andDuties of Man28. The Commission was officially endowed with the competence toreceive complaints from individuals during the Second Special Inter-AmericanConference, held in Rio de Janeiro in 1965 with the adoption of the XXIIResolution amending the Statute of the Commission29. However, Article 20 of itsnew Statute did not give a general jurisdiction to hear individual petitions, but

rather required that the Commission limit its attention to a certain set of rights inthe Declaration30. The Commission initially adopted a restrictive interpretation ofthis provision, considering the text of Article 20.a to be an exhaustive list of rights.On the basis of this interpretation, the Commission was only competent to considerindividual petitions alleging violations of the rights enumerated in theaforementioned article. Only at a later point did the Commission change itsorientation, considering the list of rights to be illustrative but not exhaustive.Currently, individual petitions before the Commission may allege a violation ofany of the rights set forth in the American Declaration. The procedure ofadjudication for these petitions is similar to the one applicable under theConvention system (infra).

11.

As a Convention organ, the Commission may adjudicate denunciations orcomplaints regarding states party to the Convention lodged by individuals: any person or group of persons, or any non governmental entity legally recognized inone or more member states of the OAS31. It may also adjudicate communications inwhich a State Party alleges that another State Party32 has committed a violation of ahuman right set forth in this Convention33. The Commission automatically has

28 Article 1 of the Commission’s statute reads as follow: “1) The Inter-American Commission onHuman Rights is an organ of the Organization of the American States, created to promote theobservance and defense of human rights and to serve as consultative organ of the Organization in thismatter. 2) For the purposes of the present Statute, human rights are understood to be: a) The rights setforth in the American Convention on Human Rights, in relation to the States Parties thereto; b) Therights set forth in the American Declaration of the Rights and Duties of Man, in relation to the othermember states”.29 See Resolution XXII of the Second Special Inter-American Conference, Final Act, OAS/Ser.C/I.13,1965, 32-34.30 Article 20.a of the inter-American Commission’s Statute requires that the Commission “pay

particular attention to the observance of the human rights referred to in Articles I, II, I II, IV, XVIII,XXV, and XXVI of the American Declaration of the Rights and Duties of Man”. It refers to the rightto life, liberty and personal security, right to equality before the law, right to religious freedom andworship, right to freedom of investigation, opinion, expression and dissemination, right to a fair trial,right of protection from arbitrary arrest, right to due process of law.31 Article 44 of the American Convention.32 Article 63(2) of the Convention; Article 19.c of the Commission’s Statute; Article 74 of theCommission’s Rules of Procedure.33 Article 45 of the American Convention.


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jurisdiction over individual communications regarding any state parties to theConvention as soon as the state has ratified it, while it only has jurisdiction over

inter-state communications if both states involved in the dispute have expresslyrecognized the Commission’s inter-state jurisdiction34. Moreover, the Commissionmay order or request the Court to issue provisional measures in serious and urgentcases, which have not yet been submitted to the Court for consideration, wheneverthis becomes necessary to prevent irreparable injury to persons (infra).

1.2.2. The Inter-American Court of Human Rights

12. The Inter-American Court of Human Rights is the autonomous judicial organof the Convention system competent to apply and to interpret the AmericanConvention of Human Rights35. The Inter-American Court of Human Rights wascreated by the American Convention and became operative in 1979, when the

General Assembly of the OAS elected its first judges36

.13. The Court sits in San José, Costa Rica37. It is composed of seven judges whomust be nationals of a OAS state, and who are “elected in an individual capacityfrom among jurists of the highest moral authority and of recognized competence inthe field of human rights, who possess the qualifications required for the exerciseof the highest judicial functions under the law of the State of which they arenationals or of the State that proposes them as candidates”38. The Court’s judges

34 Inter-state communications are regulated by articles 46 through 50 of the American Convention onHuman Rights. Article 45(1) of the American Convention on Human Rights: “Any State Party may,when it deposits its instrument of ratification of or adherence to this Convention, or at any later time,

declare that it recognizes the competence of the Commission to receive and examine communicationsin which a State Party alleges that another State Party has committed a violation of a human right setforth in this Convention”. Article 45.2 of the American Convention on Human Rights:“Communications presented by virtue of this article may be admitted and examined only if they are

presented by a State Party that has made a declaration recognizing the aforementioned competence ofthe Commission. The Commission shall not admit any communication against a State Party that hasnot made such a declaration”. This procedure has been used only once in 2006 when Nicaragua

presented an inter-state communication against Costa Rica.35 Article 1 of the Court’s Statute. 36 On the Inter-American Court of Human Rights, see: L. HENNEBEL, La Convention américaine desdroits de l’homme: mécanismes de protection et étendue des droits et libertés, (Bruylant 2007); J. M.PASQUALUCCI The Practice and Procedure of the Inter-American Court of Human Rights, Cambridge,(Cambridge University Press 2003); H. TIGROUDJA & K. PANOUSSIS, La Cour interaméricaine desdroits de l’homme: Analyse de la jurisprudence consultative et contentieuse (Bruylant 2003); A.A. CANÇADO TRINDADE, The Operation of the Inter-American Court of Human Rights, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 133; S.DAVIDSON, The Inter-American Court of Human Rights (Darmouth 1992); A.A. C ANÇADO TRINDADE,Formación, Consolidación y Perfeccionamiento del Sistema Interamericano de Protección de losDerechos Humanos, in XVII Curso de Derecho Internacional Organizado por el Comité JurídicoInteramericano (1990), (1991); Ch. CERNA, The Structure and Functioning of the Inter-AmericanCourt of Human Rights (1979-1992), Brit. Y.B. Int’l L. 135 (1992).37 Article 3.1 of the Court’s Statute.38 Article 52(1) of the American Convention and Article 4.1 of the Court’s Statute. The procedure ofelection has been criticized, as it often is the result of diplomatic negotiations between states ratherthan a strict selection among experts on human rights issues. See on this point : J.M. PASQUALUCCI, supra note 36, 348-49; Th. BUERGENTHAL & D. CASSEL, The Future of the Inter-American HumanRights System, in El Futuro del Sistema Interamericano de los Derechos Humanos, 539, 544-5 (J.Mendez & F. Cox eds. Inter-American Institute for Human Rights 1998); D. C ASSEL, Somoza’s


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have a six-year mandate that can be renewed only once39. The position of judge atthe Court is not a full-time position. The judges meet three or four times per year

during its sessions. A permanent professional staff – reputed to be insufficient –assists the judges with their work.

14. The Court performs two main types of functions. First, the Court has jurisdiction to adjudicate cases, referred by the Commission or by another state party, alleging that a state party, which has accepted the contentious jurisdiction ofthe Court, has breached the Convention. To date, twenty-one of the twenty-fourstates parties have accepted the contentious jurisdiction of the Court 40: Argentina,Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic,Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama,Paraguay, Peru, Suriname, Uruguay, and Venezuela41. As 2007, the Court has

judged ninety-five cases brought by individuals. Its contentious jurisdiction loadhas increased since 2004: the Court judged fifty-five cases between 1987 and 2003and forty between 2004 and 200742 (infra). Second, the Court has jurisdiction toissue advisory opinions43. The scope of the Court’s advisory jurisdiction, as

provided by the Convention and interpreted by the Court, is quite extensive.According to Article 64(1) of the Convention, any member state of the OAS, orany OAS organ including the Commission, within its spheres of competence44, mayconsult the Court regarding the interpretation of the Convention or of other treatiesrelated to human rights in the American states. The Court interpreted broadly thenotion “other treaties” and asserts its competence to interpret “any provisiondealing with the protection of human rights set forth in any international treatyapplicable in the American States, regardless of whether it be bilateral ormultilateral, whatever be the principal purpose of such a treaty, and whether or not

Revenge: A New Judge for the Inter-American Court, 13 Human Rights Law Journal, 137, 139(1992).39 Articles 53-54 of the American Convention and Article 5.1 of the Court’s Statute.40 A.A. CANÇADO TRINDADE, Current State and Perspectives of the Inter-American System of HumanRights Protection at the Dawn of the New Century, supra note 3, at footnote No 40. See CançadoTrindade’s comment on modes of acceptance of the Court’s jurisdiction: “Among these modes ofacceptance of the Court's jurisdiction, set forth in Article 62(2) of the Convention, it is rathersurprising to find the condition of reciprocity, which, in practical terms, could only be resorted to ininter-State cases (never brought before the Court until the present time), but not in cases referred to it

by the Commission. Moreover, considerations of reciprocity have proven utterly inadequate in the present domain of protection, where they have been gradually overcome by the notion of collectiveguarantee and considerations of common or general ‘public interest’ or ordre public”. On the erosionof reciprocity and the prominence of considerations of ordre public in the domain of the international

protection of human rights, see A.A. CANÇADO TRINDADE, A Proteçoo Internacional dos DireitosHumanos – Fundamentos Jurídicos e Instrumentos Básicos 10 (Saraiva ed., 1991).41 Trinidad and Tobago has denounced the American Convention. See infra note 69.42 2007 annual report, Inter. Am. Ct. HR, at 61.43 See J. PASQUALUCCI, Advisory Practice of the Inter-American Court of Human Rights :Contributing to the Evolution of International Human Rights Law, 38 Stan. J. Int’L. 241 (2002) ; Th.BUERGENTHAL, The Advisory Practice of the Inter-American Human Rights Court, 79 Am. J. Int’l L.1, 25 (1985).44 Advisory Opinion OC-2/82, The Effect of Reservations on the Entry Into Force of the AmericanConvention on Human Rights (Arts. 74 and 75), Inter-Am. Ct. H.R. (ser. A) No 2, ¶14 (1982) (theOAS organs must demonstrate a “legitimate institutional interest” in the subject matter of therequest), ¶16 (the Commission enjoys, as a practical matter, an absolute right to request advisoryopinions).


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non-Member States of the inter-American system are or have the right to become parties thereto”45. The Court has rendered advisory opinions related, for instance,

to the 1948 American Declaration and to the 1963 Vienna Convention on ConsularRelations46. Moreover, according to Article 64(2), any member of the OAS mayrequest the Court to provide opinions regarding the compatibility of any of itsdomestic laws with the Convention or with other treaties related to human rights inthe American states. The Court may issue an advisory opinion concerning thecompatibility of laws already in force or proposed laws with the Convention orwith other treaties47. By their very nature advisory opinions are not legally

binding48. However, they have an authoritative interpretative effect49. The Court, asthe autonomous judicial institution in charge of the application of the AmericanConvention, has the authority to interpret the Convention and other treaties in theOAS. In other words, the advisory opinion is not per se binding and the failure of astate to comply with an opinion is not a breach of the Convention, but the

interpretations pronounced by the Court cannot be ignored by the states50. Since1979, the Court has rendered 19 advisory opinions: 12 concerning theinterpretation of the Convention; 4 dealing with the interpretation of “othertreaties”; and 3 on the compatibility between domestic laws and internationalhuman rights law; 6 of the 19 advisory’s requests were lodged by the Commissionand 13 by state members51. The Court has interpreted its advisory jurisdictionextensively, showing through the exercise of this power its intention to be a trueregional court and not simply the judicial monitoring organ of the AmericanConvention. The advisory procedure is quite open and all the OAS states as well asother actors acting as amici curiae have the opportunity to express their opinions.After the formal filing and notification of the request for advisory opinion, and atthe end of the written procedure, the Court may organize hearings, which has been

a systematic practice up to this point. The fact that all the OAS states and not

45 Advisory opinion OC-1/82, “Other Treaties” Subject to the Advisory Jurisdiction of the Court (art.64 American Convention on Human Rights), Inter-Am. Ct. H.R., (Ser. A) No 1, first point of theopinion (1982).46 Advisory opinion OC-10/1989, Interpretation of the American Declaration of the Rights and Dutiesof Man within the Framework of Article 64 of the American Convention on Human Rights, Inter-Am.Ct. H.R. (ser. A) No 10 (1989); Advisory Opinion OC-16/99, The Right to Information on ConsularAssistance in the Framework of the Guarantees of the Due Process of Law, Inter-Am. Ct. H.R. (ser.A) (1999). See: A.A. CANÇADO TRINDADE, The Humanization of Consular Law: The Impact ofAdvisory Opinion n. 16 (1999) of the Inter-American of Human Rights on International Case-Lawand Practice, 4 Chinese Journal of International Law (2007) 1.47 Advisory opinion OC-4/1984, Proposed Amendments of the Naturalization Provisions of theConstitution of Costa Rica, Inter-Am. Ct. H.R., (ser. A) No 4 (1984).48 Advisory opinion OC-3/83, Restrictions to the Death Penalty (Arts. 4(2) and 4(4) AmericanConvention on Human Rights), Inter-Am. Ct. H.R., (ser. A) No 3 (1983).49 Th. BUERGENTHAL ET AL., supra note 3, at 271.50 In particular, because Article 2 requires state parties to ensure that their domestic laws arecompatible with the Convention, when the Court states in an advisory opinion requested by a state

party that a law is incompatible with it, the state is duly informed that it is in violation of theConvention. The effect of the Convention as regards states non-party to the Convention is moredifficult to assess since they are not bound by the Convention. Moreover, the effect of the advisoryopinions interpreting other treaties such as the International Covenant of Civil and Political Rights onthe American states parties to these treaties raises the problem of a possible conflict of jurisdiction

between the Court and the organ of supervision of the other treaties.51 2007 Annual Report, Inter-Am. Ct. H.R., at 77.


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exclusively the states parties to the Convention may request opinions is a way toleave the Court’s door open for the states non-parties.

1.3. THE I NTER -AMERICAN HUMAN R IGHTS I NSTRUMENTS: A DECLARATIONAND A CONVENTION

15. The OAS has elaborated a normative framework that is based on theDeclaration, the Convention, and instruments aiming at the protection of humanrights in general and the protection of specific rights or particular categories of

persons.

1.3.1. The American Declaration of the Rights and Duties of Man

16. The American Declaration of the Rights and Duties of Man pre-dates by somemonths the Universal Declaration of Human Rights adopted in 1948. The NinthInternational Conference of American States proclaimed it on May 2, 1948. TheDeclaration regards rights as “attributes of human personality” and provides that“the fulfillment of duty by each individual is a prerequisite to the rights of all”52. Itconsists of a Preamble and 38 articles. The text is divided into two chapters: thefirst focuses on rights, while the second focuses on duties. The Declarationrecognizes a vast array of civil, political, social, economic and cultural rights andaims at the protection of all human beings at all time. The rationale of theDeclaration is expressed in its preamble, which states that “The American peopleshave acknowledged the dignity of the individual, and their national constitutionsrecognize that juridical and political institutions, which regulate life in humansociety, have as their principal aim the protection of the essential rights of man and

the creation of circumstances that will permit him to achieve spiritual and material progress and attain happiness; The American States have on repeated occasionsrecognized that the essential rights of man are not derived from the fact that he is anational of a certain state, but are based upon attributes of his human personality;The international protection of the rights of man should be the principal guide of anevolving American law; The affirmation of essential human rights by the AmericanStates together with the guarantees given by the internal regimes of the statesestablish the initial system of protection considered by the American States as

being suited to the present social and juridical conditions, not without a recognitionon their part that they should increasingly strengthen that system in theinternational field as conditions become more favorable”. The rights proclaimed bythe Declaration include: the right to life, liberty and personal security; the

prohibition of arbitrary arrest; the right to due process of law; the right to equality before law; the right to religious freedom and worship; the freedoms of opinion,expression, assembly and association; the right to protection of honor, personalreputation and family life; the protection of the family; the protection of mothersand children; the right to residence and movement; the right to privacy; the right tohealth; the right to property; the right to education; the right to benefits of culture;

52 See generally A.A. CANÇADO TRINDADE, El Sistema Interamericano de Protección de los DerechosHumanos (1948-1995): Evolución, Estado Actual y Perspectivas, in Derecho Internacional yDerechos Humanos/Droit international et droits de l'homme 47 (D. Bardonnet & A.A. CançadoTrindade eds., 1996).


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the right to work and fair remuneration; the right to leisure time; the right to socialsecurity; the right to recognition of juridical personally and civil rights; the right to

a fair trial; the right to nationality; the right to participate in government; the rightto petition; and the right of asylum53. The duties include: duties to society; dutiestoward children and parents; duties to receive instruction; duties to vote; duties toobey the law; duties to serve the community and the nation; duties with respect tosocial security and welfare; duties to pay taxes; duties to work; and duties to refrainfrom political activities in a foreign country.

17. The American Declaration was not meant to be legally binding54. However, theAmerican Declaration became indirectly binding thanks to the inter-American

bodies’ dynamic interpretation. In Advisory Opinion n°1055, the Court stated thefollowing: “What is clear (…) is that the Declaration is not a treaty as defined bythe Vienna Conventions because it was not approved as such (…) 56.”However,according to the Court, “the American Declaration is for these States a source ofinternational obligations related to the Charter of the Organization.” 57 TheDeclaration is therefore virtually considered as the comprehensive and bindingdefinition of the Charter’s human rights obligations. In other words, the AmericanDeclaration is seen as the authoritative interpretation of the fundamental rights ofthe individual proclaimed by the OAS Charter 58. The Inter-American Commissionhas adopted the same position and applies and interprets the rights of theDeclaration as an indirectly legally binding instrument when monitoring theCharter’s human rights obligations.

53

See : S. DAVIDSON, The Civil and Political Rights Protected in the Inter-American Human RightsSystem, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note3, 213.54 See : D. CASSEL, Inter-American Human Rights Law, Soft and Hard, in Commitment andCompliance: The Role of Non-Binding Norms in the International Legal System (D. Shelton ed.Oxford University Press) 393 (Oxford 2000) ; D. HARRIS, Regional Protection of Human Rights: TheInter-American Achievement, in The Inter-American System of Human Rights (D. Harris & S.Livingstone eds.) supra note 3, at 4; Th. BUERGENTHAL, The American Human Rights Declaration:Random Reflections, in Staat und Völkerrechtsordnung (Festschrift fur Karl Doehring, G. Ress & T.Stein eds. 1989), 133.55 Advisory opinion OC-10/1989, Interpretation of the American Declaration of the Rights and Dutiesof Man within the Framework of Article 64 of the American Convention on Human Rights, Inter-Am.Ct. H.R. (ser. A) No 10, ¶33 (1989). The question asked by the government of Colombia regardingthe interpretation of the American Declaration of the Rights and Duties of Man within the frameworkof article 64 of the American Convention on Human Rights was the following: “Does Article 64authorize the Inter-American Court of Human Rights to render advisory opinions at the request of amember state or one of the organs of the OAS, regarding the interpretation of the AmericanDeclaration of the Rights and Duties of Man, adopted by the Ninth International Conference ofAmerican States in Bogotá in 1948?” (¶2).56 Id. ¶35: “The mere fact that the Declaration is not a treaty does not necessarily compel theconclusion that the Court lacks the power to render an advisory opinion containing an interpretationof the American Declaration.”

57 Id. ¶45.58 Id. ¶ 43: “Hence it may be said that by means of an authoritative interpretation, the member statesof the Organization have signaled their agreement that the Declaration contains and defines thefundamental human rights referred to in the Charter. Thus the Charter of the Organization cannot beinterpreted and applied as far as human rights are concerned without relating its norms, consistentwith the practice of the organs of the OAS, to the corresponding provisions of the Declaration”


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18. The binding nature of the Declaration, however, remains controversial forsome States, in particular for the United States, that have repeatedly declared that

the Declaration was not intended to be legally binding.59

The issue of the legaleffect of the Declaration is not only a theoretical one. It entails two questionsessential to the efficient functioning of the inter-American system for the

protection of human rights. The first question deals with the States’ legalobligations as regards the American Declaration. Since the Declaration is indirectly

binding, the scope of the obligations of the states is unclear. Indeed, as theDeclaration is not a convention and has not been adopted with the aim of beinglegally binding, it has been generally phrased and concerns individual human

beings rather than States60. Because of its declaratory nature, this text does not provide general or specific legal obligations and the rights it enumerates areexpressed in absolute terms61. Moreover, since it is not a treaty, states cannot makereservations, suspend, or derogate from the text. Therefore, the use of the

Declaration as the authoritative enumeration of the OAS Charter’s human rightsobligations may raise difficult questions of interpretation that the Commissionmust address. The second question deals with the coexistence of the Declarationand the Convention. Indeed, not all OAS member States have ratified or adoptedthe American Convention. For these States non-Party, which are the United States,Canada and most of the Anglophone Caribbean, the main inter-American humanrights source of obligations remains the American Declaration. For the StatesParties to the Convention, the question was whether they were still bound by theDeclaration. This question is highly relevant since the rights protected in theDeclaration and the Convention are not identical. Indeed, the Declaration protectssome rights that are not mentioned in the Convention, most notably socio-economic and cultural rights62 such as the rights to education, to the benefits of

59 Roach & Pinkerton v. United States, Case 9647, Inter-Am. Ct. H.R., Resolution No 3/87,OEA/Ser.L/V/II.71 Doc. 9 rev. 1, ¶38 (1986-1987) : “The U.S. Government does not agree with theCommission's holding in Case Nº 2141 (United States) that the Declaration acquired binding forcewith the adoption of the revised OAS Charter . (Res. 23/81, OAS/Ser. L/V/II.52, Doc. 48. Mar. 6,1981) The Declaration was not drafted with the intent to create legal obligations”. Advisory opinionOC-10/1989, Interpretation of the American Declaration of the Rights and Duties of Man within theFramework of Article 64 of the American Convention on Human Rights, Inter-Am. Ct. H.R. (ser. A)

No 10, ¶33 (1989). ¶12: “The Government of the United States of America believes: The AmericanDeclaration of the Rights and Duties of Man represents a noble statement of the human rightsaspirations of the American States. Unlike the American Convention, however, it was not drafted as alegal instrument and lacks the precision necessary to resolve complex legal questions. Its normativevalue lies as a declaration of basic moral principles and broad political commitments and as a basis toreview the general human rights performance of member states, not as a binding set of obligations.The United States recognizes the good intentions of those who would transform the AmericanDeclaration from a statement of principles into a binding legal instrument. But good intentions do notmake law. It would seriously undermine the process of international lawmaking – by which sovereignstates voluntarily undertake specified legal obligations – to impose legal obligations on states througha process of ‘reinterpretation’ or ‘inference’ from a non-binding statement of principles”. 60 The Declaration states that “All men are born free and equal (…)” rather than “States shall respectand ensure the following rights and liberties”.61 Yet, Article 28 of the Declaration states the scope of the rights protected: “The rights of man arelimited by the rights of others, by the security of all, and by the just demands of the general welfareand the advancement of democracy.”62 See M. CRAVEN, The Protection of Economic, Social and Cultural Rights under the inter-AmericanSystem of Human Rights, in The Inter-American System of Human Rights (D. Harris & S.Livingstone eds.) supra note 3, 291-6.


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culture, to work and to fair remuneration, to leisure time and to the use thereof, tosocial security, etc. In theory the two instruments coexist in such a way that a State

that ratifies the Convention is still bound as a member of the OAS by theDeclaration, since that State remains Party to Bogotá Charter. The Inter-AmericanCourt corroborated this theory in Advisory Opinion n°10: “For the States Parties tothe Convention, the specific source of their obligations with respect to the

protection of human rights is, in principle, the Convention itself. It must beremembered, however, that, given the provisions of Article 29(d), these Statescannot escape the obligations they have as members of the OAS under theDeclaration, notwithstanding the fact that the Convention is the governinginstrument for the States Parties thereto”63. Yet, despite the position of the Court,the Inter-American Commission, which is the only body competent to monitor thestates’ human rights obligations provided by the Bogotá Charter (and the AmericanDeclaration), held the opposite view, according to which States parties to the

Convention are not bound anymore by the Declaration. That interpretation derivesfrom Article 1(2) of the Commission’s statute, which states the following: “humanrights are understood to be: a. The rights set forth in the American Convention onHuman Rights, in relation to the States Parties thereto; b. The rights set forth in theAmerican Declaration of the Rights and Duties of Man, in relation to the othermember states.” The Commission applies a strict interpretation of this provisionand, as such, refuses to apply the American Declaration to states party to theConvention.64 This interpretation is quite restrictive, as the main objective of the1979 amendment to the statute of the Commission was “to ensure that theCommission retained its monitoring powers over non Convention parties once theConvention had entered into force,”65 rather than excluding states party to theConvention from the application of the Declaration. However, the Commission

opted to distinguish clearly between the two systems based on two instrumentswith different rights, mechanisms and States.66

63 Advisory opinion OC-10/1989, Interpretation of the American Declaration of the Rights and Dutiesof Man within the Framework of Article 64 of the American Convention on Human Rights, Inter-Am.Ct. H.R. (ser. A) No 10, ¶46 (1989).64 Maximo Bonchil et al. v. Argentina, Cases 9777 and 9718, Inter-Am. C.H.R., OEA/Ser.L/V/II.74,doc. 10 rev.1, Reports, Point V Conclusions ¶6, (1987-1988): “(…) no existe acuerdo o instrumentoformulado o concertado entre los Estados Partes en la Convención Americana a los efectos de hacervaler la Declaración Americana de los Derechos y Deberes del Hombre (1948) como parte integrantede la Convención o suplementaria de la misma para los Estados Partes. (…) En consecuencia seconcluye que, en cuanto a los Estados Partes en la Convención y para el caso que nos ocupa, laRepública Argentina, la CIDH solamente puede, conforme con su Reglamento (Art. 31), tomar enconsideración las peticiones sobre presuntas violaciones de derechos humanos definidos en laConvención Americana sobre Derechos Humanos. El derecho al trabajo no está todavía incorporado ala Convención que no incluye los derechos económicos, sociales y culturales”.65On these questions see D. HARRIS, Regional Protection of Human Rights: The Inter-AmericanAchievement, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 8.66 The states party to the Convention are, however, still bound by the Declaration regarding actionsthat predated their ratification of the Convention. See Alonso Eugénio Da Silva v. Brazil, Case11.291, Inter-Am. C.H.R., Report No 9/00, OEA/Ser.L/V/II.106 doc. 6 rev., ¶19 (1999): “TheCommission recalls that, although the events took place on March 8, 1992, a number of months

before Brazil ratified the Convention on September 25, 1992, the Brazilian State is not exempt fromresponsibility for acts violating human rights occurring prior to ratification of the Convention, sincethe rights guaranteed by the Declaration were binding. The Inter-American Court of Human Rights


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1.3.2. The American Convention on Human Rights

19.

The American Convention is the second cornerstone of the inter-Americansystem for the protection of human rights. Its adoption in 1969 substantiallymodified the juridical nature of the system. Previously based on a Declaration, it isnow based on a Convention while preserving the Declaration for non-parties to theConvention. The Convention was envisioned as a regional intermediary of theuniversal system for the protection of human rights. As such, there are manysimilarities to be found between the American Convention and the 1966International Covenant on Civil and Political Rights. The drafting process washighly influenced by the Covenant, which was taken as model for the AmericanConvention67. The Universalistic perspective is thus inherent to the AmericanConvention on Human Rights68. The American Convention has been ratified by thefollowing twenty-five states: Argentina, Barbados, Bolivia, Brazil, Chile,

Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador,Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama,Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela.However, Trinidad and Tobago has denounced the Convention and therefore is nolonger a state party69. To date, the United States of America, Canada, and most ofthe English-speaking Caribbean countries, have not ratified the AmericanConvention.

20. The Convention is divided into three parts: the first addresses the obligations ofthe states and the rights protected, the second focuses on means of protection, andthe third deals with general and transitory provisions. The first paragraph of the

preamble states that the Convention intends “to consolidate in this hemisphere,

within the framework of democratic institutions, a system of personal liberty andsocial justice based on respect for the essential rights of man.” The ideological aimof the inter-American system for the protection of human rights can be inferredfrom this paragraph, as it regards democracy as the only system that can effect the

protection of human rights.

21. The rights and liberties protected by the Convention include the prohibition ofdiscrimination, the right to juridical personality, the right to life, the right to

explicitly recognized the binding character of the Declaration when it stated “Articles 1(2)(b) and 20of the Commission’s Statute define the Commission’s jurisdiction with respect to the human rightsenshrined in the Declaration. In other words, for States that ratified the Buenos Aires Protocol, theAmerican Declaration constitutes a source of international obligations under the Organization’sCharter”.67 C. DUNSHEE DE ABRANCHES, Comparative Study of the United Nations Covenants on Civil andPolitical Rights and on Economic, Social and Cultural Rights and the Draft Inter-AmericanConvention on Human Rights, OAS/Ser.L/V/II.19, Doc. 18, 24 June 1968. This report evaluated thecompatibility between the draft of the American Convention and the 1966 United Nations Covenants.68 On the preparatory work of the American Convention, see Organización de los Estados Americanos(OAS), Conferencia Especializada Interamericana sobre Derechos Humanos--Actas y Documentos(San José de Costa Rica), OEA doc. OEA/Ser.K/XVI/1.2, (1969).69 N. PARASSRAN CONCEPCION, The Legal Implications of Trinidad & Tobago's Withdrawal from theAmerican Convention on Human Rights, 18 AM. U. INT’L L. REV. 847, 849 (2001). See also :Hilaire, Constantine & Benjamin v. Trinidad and Tobago, 2001 Inter-Am. Ct. H.R. (ser. C) No 94(June 21, 2000) ; 2005 Caesar v. Trinidad and Tobago, Inter-Am. Ct. H.R., (ser. C) No 123 (March11, 2005).


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humane treatment, the prohibition of torture, the freedom from slavery andservitude, the right to personal liberty, the right to a fair trial and judicial

guarantees and protection, the freedom from ex post facto laws, the right to a faircompensation for miscarriage of justice, the right to privacy, the freedom ofconscience and religion, the freedom of thought and expression, the right to reply,the right of assembly, the freedom of association, the rights of the family, the rightto a name, the rights of the child, the right to nationality, the right to property, thefreedom of movement and residence, the right to participate in government, theright to equal protection of the law, and article 26 refers to the progressiveimplementation of economic, social and cultural rights70. Article 32 endorses therelationship between rights and duties by providing that every person hasresponsibilities to his family, his community and mankind. The beneficiaries ofmost of the rights provided by the Convention are “persons,” meaning in theConvention “every human being”71. That means that juridical persons such as

corporations are not the beneficiaries of the Convention’s rights. As a consequence,the “victim” that alleges human rights abuses before the Commission must be a

physical person72.

22. The state parties have two general obligations under the Convention: theobligation to respect and ensure human rights, and the obligation to adopt thedomestic laws necessary to this end. First, according to Article 1 of the Conventionthe state parties undertake “to respect the rights and freedoms” of the Conventionand “to ensure to all persons subject to their jurisdiction the free and full exerciseof those rights and freedoms, without any discrimination (…)”. This generalobligation is of major importance in the American Convention since the obligationto respect and ensure applies to all the rights recognized in the Convention.

Respecting these rights entails that states cannot violate, directly or indirectly, theirobligation to ensure entails that they must adopt and implement the measures thatare reasonable and necessary to ensure the free and full enjoyment of human rights,which includes their duties to prevent, to investigate, to sanction and to compensate

70 Article 26. Progressive Development. “The States Parties undertake to adopt measures, bothinternally and through international cooperation, especially those of an economic and technicalnature, with a view to achieving progressively, by legislation or other appropriate means, the fullrealization of the rights implicit in the economic, social, educational, scientific, and cultural standardsset forth in the Charter of the Organization of American States as amended by the Protocol of BuenosAires”. See M. CRAVEN, The Protection of Economic, Social and Cultural Rights under the inter-American System of Human Rights, in The Inter-American System of Human Rights (D. Harris & S.Livingstone eds.) supra note 3, 289.71 Article 1(2) of the American Convention. However, the beneficiaries of the political rights provided

by article 23 of the Convention are the “citizens”.72 Tomás Enrique Carvallo Quintana v. Argentina, Case 11.859, Inter-Am. C.H.R., Report No. 67/01,OEA/Ser./L/V/II.114 doc. 5. rev., ¶55 (2001): “The jurisprudence of the Commission is consistent inindicating that claims raised before it that were litigated before the national courts in the name of

juridical persons as opposed to individual victims are not admissible, because the Commission lacksthe competence ratione personae to examine claims which concern the rights of juridical

persons. This is indicated quite directly in the preamble of the American Convention, which indicatesthat ‘the essential rights’ protected are ‘based on attributes of the human personality’, Article 1(1),which speaks to the obligation of the State to respect and ensure the rights of “all persons” subject toits jurisdiction, and Article 1(2) which defines ‘person’ as ‘every human being’.The present casediscloses no elements to justify a change in the Commission’s practice in this regard”.


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the human rights abuses73. Moreover, Article 25 of the Convention provides that thestate parties have the obligation to ensure that the victims of human rights abuses

should be granted an effective judicial remedy. Second, according to Article 2 ofthe Convention, which provides the other general obligation, the states partiesundertake “to adopt, in accordance with their constitutional processes and the

provisions of this Convention, such legislative or other measures as may benecessary to give effect to those rights or freedoms”. For the Court, that generalobligation “implies the adoption of measures on two fronts: on the one hand, thesuppression of rules and practices of any kind that entail violation of the guaranteesset forth in the Convention; on the other, the issuance of rules and the developmentof practices leading to the effective observance of said guarantees”74. For the Court,the international liability of the states, “arises from the violation of the generalobligations, erga omnes in nature, to respect and enforce respect for - guarantee-the protection standards and to ensure the effectiveness of the rights enshrined

therein, in all circumstances and in respect to all persons under their jurisdiction,embodied in Articles 1(1) and 2 of said treaty”75.

23. The majority of the rights of the Convention are not absolute. Most of themcan be subject to the restrictions established by law when such restrictions arenecessary in a democratic society, and are aimed at lawful purposes (such as

protecting national security, public safety or public order, or protecting publichealth or the rights and freedoms of others) 76. Moreover, Article 27 of theConvention states that “in time of war, public danger, or other emergency thatthreatens the independence or security of a State Party, it may take measuresderogating from its obligations under the present Convention to the extent and forthe period of time strictly required by the exigencies of the situation, provided that

such measures are not inconsistent with its other obligations under internationallaw and do not involve discrimination on the ground of race, color, sex, language,religion, or social origin”77. Derogation is not permitted for the following so-callednon-derogable rights, however: the right to juridical personality; the right to life;the right to humane treatment; the freedom from slavery; the freedom from ex postfacto laws; the freedom of conscience and religion; the rights of the family; the

73 See: F. BASCH, The Doctrine of the Inter-American Court of Human Rights Regarding States’Dutyto Punish Human Rights Violations and Its Dangers, 23 Am. U. Int’l L. Rev. 195.74 Case of the Juvenile Reeducation Institute v. Paraguay, 2004 Inter-Am. Ct HR, (ser. C) No 112,

¶206 (September 2, 2004); Case Cantoral Benavides v. Peru, 2000 Inter-Am. Ct HR, (ser. C) No 69, ¶78 (August 18, 2000).75 Case of Baldeón-García v. Peru, 2006 Inter-Am. Ct HR, (ser. C) No 147, ¶80, (April 06, 2006);Case of the Pueblo Bello Massacre v. Colombia, 2006 Inter-Am. Ct HR, (ser. C) No 140, ¶111(January 31, 2006); Case of the “Mapiripán Massacre” v. Colombia, 2005 Inter-Am. Ct HR, (ser. C)

No 134, ¶111 (September 15, 2005).76 Article 30 of the American Convention (general provision related to the restrictions). See on thatarticle : Advisory Opinion OC-6/86, The Word “Laws” in Article 30 of the American Convention onHuman Rights, Inter. Am. Ct. HR, Series A, No 6 (1986). See for the specific restrictions to certainrights: Articles 8(5) (judicial guarantees); 13 (freedom of expression); 15 (freedom of assembly); 16(freedom of association); 21 (right to property); 22 (freedom to move); 12 (freedom of religion); 11(right to privacy).77 See J. FITZPATRICK , States of Emergency in the Inter-American Human Rights System, in TheInter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 371; C.GROSSMAN, A Framework for the Examination of States of Emergency Under the AmericanConvention on Human Rights, 1 Am.U.J.Int’l L.&Pol. 35 (1986).


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right to a name; the rights of the child; the right to nationality; the right to participate in government; and the judicial guarantees essential for the protection of

such rights78

. In addition, according to Article 75 of the Convention, the states canmake reservations to the Convention only in conformity with the 1969 ViennaConvention on the Law of Treaties79.

1.3.3. The American Convention’s Protocols

24. According to Article 77 of the Convention, any state party or the Commissionmay submit a protocol proposal80. The objective of this provision is to includegradually other rights and freedoms in the system of protection. Two additional

protocols to the American Convention have been adopted.

25. The Protocol of San Salvador was adopted in 1988 and has been ratified byArgentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador,Guatemala, Mexico, Panama, Paraguay, Peru, Suriname and Uruguay. It intends toreaffirm, develop, perfect and protect economic, social and cultural rights 81. TheStates Parties, according to Article 1 of the Protocol, “undertake to adopt thenecessary measures, both domestically and through international cooperation,especially economic and technical, to the extent allowed by their availableresources, and taking into account their degree of development, for the purpose ofachieving progressively and pursuant to their internal legislations, the fullobservance of the rights recognized in this Protocol”. The Protocol recognizes therights to work and to the just, equitable and satisfactory conditions of work; therights regarding trade unions; the right to social security; the right to health; theright to a healthy environment; the right to food ; the right to education ; the right

to the benefits of culture ; the right to the formation and the protection of families ;the rights of children ; the protection of the elderly; and the protection of thehandicapped. According to Article 19 of the Protocol, the main means ofmonitoring consist of a state report mechanism. The state parties have to submit

periodic reports on the progressive measures they have taken to ensure due respectfor the rights set forth in the Protocol for examination by the Inter-AmericanEconomic and Social Council and the Inter-American Council for Education,Science and Culture. Only the violations of the right of workers to organize trade

78 Article 27(2) of the American Convention. See on the interpretation of that provision: AdvisoryOpinion OC-8/87, Habeas corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) AmericanConvention on Human Rights), Inter. Am. Ct. HR, Series A, No 8 (1987); Advisory Opinion OC-9/87, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention onHuman Rights), Inter. Am. Ct. HR, Series A, No 9 (1987).79 See: Advisory Opinion OC-2/82, The Effect of Reservations on the Entry into Force of theAmerican Convention on Human Rights (Arts. 74 and 75), Inter. Am. Ct. HR, (ser. A), No 2 (1982).80 According to Article 77(2) of the Convention “Each protocol shall determine the manner of itsentry into force and shall be applied only among the States Parties to it”.81 Protocol to the American Convention on Human Rights in the Area of Economic, Social, andCultural Rights, Nov. 17,1988, Resolution AGIRES 907 (XVIII-0/88), reprinted in 28 I.L.M. 156(1989). See : L. LEBLANC, The Economic, Social and Cultural Rights Protocol to the AmericanConvention and its Background, 2, Neth. Q. Hum. Right, 130 (1992); A.A. C ANÇADO TRINDADE, LaCuestión de la Protección Internacional de los Derechos Económicos, Sociales y Culturales:Evolución y Tendencias Actuales (1992); A.A. CANÇADO TRINDADE, La question de la protectioninternationale des droits économiques, sociaux et culturels: évolution et tendances actuelles, 94 Revuegénérale de Droit international public 913 (1990).


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unions and to join the union of their choice and of the right to education can bealleged in individual petitions before the Inter-American Commission of Human

Rights, and, when applicable, before the Inter-American Court of Human Rights.26. The second additional protocol deals with the abolition of death penalty. It wasadopted in 1990 in Asuncion, Paraguay, and entered into force on August 28,199182. It has been ratified by Brazil, Costa Rica, Ecuador, Mexico, Nicaragua,Panama, Paraguay, Uruguay and Venezuela. According to Article 1, the states

parties “shall not apply the death penalty in their territory to any person subject totheir jurisdiction”. During the travaux préparatoires of the American Convention,a suggested provision unconditionally prohibiting capital punishment was rejected.In that context, the Second Protocol intended to affirm the abolitionist tendency ofthe American States.

1.3.4. The other Inter-American Conventions related to Human Rights

27. Moreover, the American States have adopted a series of several instruments inrelation to specific rights or specific situations. Four main inter-AmericanConventions related to human rights and open for signature to all the OAS States(and not exclusively to the States Parties to the American Convention) have beenadopted83.

28. First, the Inter-American Convention to Prevent and Punish Torture wasadopted in 1985 and entered into force February 28, 1987 84. The State Parties“undertake to prevent and punish torture” understood “to be any act intentionally

performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal

punishment, as a preventive measure, as a penalty, or for any other purpose” 85.According to Article 2 of the Convention, torture “shall also be understood to bethe use of methods upon a person intended to obliterate the personality of thevictim or to diminish his physical or mental capacities, even if they do not cause

physical pain or mental anguish”. The state parties should either extradite “anyoneaccused of having committed the crime of torture or sentenced for the commissionof that crime,” or take the necessary measures to criminalize torture and prosecute

82 Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990,Inter-Am. C.H.R., reprinted in 29 I.L.M. 1447 (1990).83 Inter-American Convention to Prevent and Punish Torture (Adopted at Cartagena de Indias,Colombia, on December 9, 1985); Inter-American Convention on Forced Disappearance ofPersons (Adopted at Belém do Pará, Brasil, on June 9, 1994); Inter-American Convention on thePrevention, punishment and eradication of violence against Women "Convention of Belem doPara " (Adopted in Belém do Pará, Brasil, on June 9, 1994); Inter-American Convention on theElimination of all forms of discrimination against persons with disabilities (Adopted at GuatemalaCity, Guatemala, on June 7, 1999). 84 Inter-American Convention to Prevent and Punish Torture, entered into force Feb. 22, 1987, OASTreaty Series No. 67, reprinted in 25 I.L.M. 519 (1986). To date, the states parties are : Argentina,Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala,Mexico, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. See also on that instrument :H. GROS ESPIELL, Las Convenciones sobre Tortura de las Naciones Unidas y de la Organización delos Estados Americanos, in XIV Curso de Derecho Internacional Organizado por el Comité JurídicoInteramericano 221-42 (Washington, D.C., OAS General Secretariat 1987).85 Articles 1 & 2 of the Inter-American Convention to Prevent and Punish Torture.


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offenders when torture has been committed within its jurisdiction, by one of itsnationals, or, if appropriate, when the victim is of its nationals86. This Convention

spells out more specifically the content of Article 5 of the American Convention,which also prohibits torture and inhumane treatments. According to Article 8 of theInter-American Convention to Prevent and Punish Torture, “after all the domesticlegal procedures of the respective State and the corresponding appeals have beenexhausted, the case may be submitted to the international fora whose competencehas been recognized by that State”. The international fora can be either the inter-American Commission87 or, for the States that have accepted its contentious

jurisdiction, the Inter-American Court of Human Rights88.

29. Second, the Inter-American Convention on Forced Disappearance of Personswas adopted in 1994 and entered into force March 28, 1996 89. Article 2 of theConvention defines forced disappearance as “the act of depriving a person or

persons of his or their freedom, in whatever way, perpetrated by agents of the stateor by persons or groups of persons acting with the authorization, support, oracquiescence of the state, followed by an absence of information or a refusal toacknowledge that deprivation of freedom or to give information on thewhereabouts of that person, thereby impeding his or her recourse to the applicablelegal remedies and procedural guarantees”. State parties cannot practice, permit ortolerate forced disappearance, and they must punish the persons who commit orattempt to commit forced disappearance and their accomplices. They also mustcooperate with one another to adopt the necessary measures to prevent, punish andeliminate such practices. The state parties undertake the obligation to extradite or

prosecute the authors of such crimes. The Inter-American Commission and theInter-American Court for the states that have accepted its contentious jurisdiction

86 Articles 11-14 of the Inter-American Convention to Prevent and Punish Torture.87 Article 23 of the Commission’s rules of procedure.88 See: Case of the “White Van” (Paniagua-Morales et al.) v. Guatemala, 1998 Inter-Am. Ct. H.R.,(ser. C) No 37, ¶ 136 (1998) ; Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala,1999 Inter-Am. Ct. H.R., (ser. C) No 63, ¶ 247 (1999). The Court “considers that it should refer to itsown competence to interpret and apply the Convention against Torture and to declare theresponsibility of a State that has agreed to be obliged by this Convention and has also accepted the

jurisdiction of the Inter-American Court of Human Rights. As some member countries of theOrganization of American States were still not parties to the American Convention and had notaccepted the jurisdiction of the Court, the drafters of the Convention against Torture decided not toinclude in it an article that made express and exclusive reference to the Inter-American Court in ordernot to indirectly bind them to the former Convention and the aforementioned jurisdictional organ”.89 To date, the states parties are: Argentina, Bolivia, Colombia, Costa Rica, Ecuador, Guatemala,Honduras, Mexico, Panama, Paraguay, Peru, Uruguay, and Venezuela. See the preparatory works :Organización de los Estados Americanos (OAS)/Consejo Permanente, Informe del Presidente delGrupo de Trabajo Encargado de Analizar el Proyecto de Convención Interamericana sobreDesaparición Forzada de Personas, doc. OEA/Ser.G/CP/ CAJP/925/93/rev.1, (Jan. 25, 1994), at 1-49;OAS, Informe de la Comisión de Asuntos Jurídicos y Políticos acerca del Proyecto de ConvenciónInteramericana sobre Desaparición Forzada de Personas, doc. OEA/Ser.G/CP/doc.2458/94, (Feb. 22,1994), at 1-65; OAS, Report of the Permanent Council on the Draft Inter-American Convention onForced Disappearance of Persons, doc. OEA/Ser.P/ AG/doc.3072/94 (Apr. 29, 1994) at 1-56.; doc.OEA/Ser.P/AG/ doc.2821/92 (Apr. 22, 1992) at 1-22.


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are competent to deal with petitions or communications alleging a violation of thatConvention by a state party90.

30.

Third, the Inter-American Convention on the Prevention, Punishment andEradication of Violence against Women was adopted in 1994 and entered intoforced on March 5, 199591. In that Convention, violence against women isunderstood “as any act or conduct, based on gender, which causes death or

physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere”. The state parties must condemn all forms of violenceagainst women, pursue policies to prevent, punish and eradicate such violence, andengage in various general or specific actions provided by Article 7 of theConvention, such as “to apply due diligence to prevent, investigate and impose

penalties for violence against women”. The state parties must include in theirnational report to the Inter-American Commission of Women, a specializedOrganization of the OAS established in 1928, information concerning theimplementation and respect of the Convention. Moreover, according to Article 12of the Convention, any person or group of persons, or any non governmental entitylegally recognized in one or more member states of the OAS may lodge petitionsalleging violations of a state party’s duties before the Inter-American Commissionof Human Rights92. The Inter-American Court of Human Rights may also play acertain role as relating to this instrument since the state parties and the Inter-American Commission of Women may request that the Court deliver advisoryopinions on the interpretation of the Convention93.

31. Fourth, the Inter-American Convention on the Elimination of All Forms ofDiscrimination against Persons with Disabilities adopted in 1999 entered into forceon September 14, 200194. That instrument aims at preventing and eliminating all

90 Article XIII of the Inter-American Convention on Forced Disappearance of Persons: “For the purposes of this Convention, the processing of petitions or communications presented to the Inter-American Commission on Human Rights alleging the forced disappearance of persons shall besubject to the procedures established in the American Convention on Human Rights and to the Statueand Regulations of the Inter-American Commission on Human Rights and to the Statute and Rules ofProcedure of the Inter-American Court of Human Rights, including the provisions on precautionarymeasures”. See also: Case of Blake v. Guatemala, 1996 Inter-Am. Ct. H.R., (ser. C) No 27, (1996)(separate opinion of Judge A.A. Cançado Trindade). See also, on gross violations generally in theinter-American system: C. MEDINA QUIROGA, The Battle of Human Rights--Gross, SystematicViolations and the Inter-American System (Dordrecht, Nijhoff 1988).91 Inter-American Convention on the Prevention, Punishment and Eradication of Violence AgainstWomen, June 9, 1994, 33 I.L.M. 1535 (entered into force Mar. 5, 1995). To date, the states partiesare : Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia,Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana,Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, St. Kitts & Nevis, SaintLucia, St. Vincent & Grenadines, Suriname, Trinidad and Tobago, Uruguay, and Venezuela.92 See e.g., Maria Da Penha Maia Fernandes v. Brazil, Case 12.051, Inter-Am. C.H.R., Report No.54/01, OEA/Ser.L/V/II.111 Doc. 20 rev. (2000).93 The Court considers that the inter-American Convention on women is part of the human rightscorpus juris that may be used to interpret the American Convention. See e.g.: Case of the MiguelCastro-Castro Prison v. Peru, 2006 Inter-Am. Ct. H.R. (ser. C) No 160 ¶ (November 25, 2006). Seealso on the issue of violence against women in the inter-American system: A. EWING, EstablishingState Responsibility for Private Acts of Violence Against Women Under the American Convention onHuman Rights, 26 Colum. Hum. Rts. L. Rev. 751 (1995).94 Inter-American Convention on the Elimination of all Forms of Discrimination Against Persons withDisabilities, June 7, 1999, Organization of American States, AG/RES. 1608 (XXIX-O/99). To date,


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forms of discrimination against persons with disabilities and at promoting their fullintegration into society. The state parties undertake to adopt specific measures

mentioned in broad terms by Articles 3 through 5 of the Convention. According toArticle 1 of the Convention, disability is “a physical, mental, or sensoryimpairment, whether permanent or temporary, that limits the capacity to performone or more essential activities of daily life, and which can be caused or aggravated

by the economic and social environment”. Discrimination against persons withdisability means “any distinction, exclusion, or restriction based on a disability,record of disability, condition resulting from a previous disability, or perception ofdisability, whether present or past, which has the effect or objective of impairing ornullifying the recognition, enjoyment, or exercise by a person with a disability ofhis or her human rights and fundamental freedoms”. A Committee for theElimination of All Forms of Discrimination against Persons with Disabilities wascreated by the Convention to ensure the state parties’ follow up of their

commitments through the evaluation of reports they must submit every four yearsafter the submission of an initial report.

1.4. THE I NTER -AMERICAN HUMAN R IGHTS MECHANISMS: R EPORT ANDCOMPLAINT

32. The Commission and the Court can use various mechanisms to monitor, protect, and promote human rights. Some of them may potentially be used withrespect to all the thirty-five states of the OAS, while others require that the stateconcerned has ratified the American Convention. Of course, the OAS Charter-

based system and the American Convention-based system overlap and themechanisms are to some extent interrelated. The two primary existing mechanisms

are the country report mechanisms, which usually deal with human rights situationsin general in specific countries, and the complaint mechanisms, which are used toaddress specific cases of human rights abuses.

1.4.1. General Human Rights Situation Mechanism: the Country Reports

33. The Inter-American Commission of Human Rights uses various reportingmechanisms to promote and monitor human rights. One of these mechanismsconsists of providing country studies95. The country report mechanism allows theCommission to investigate human rights conditions in any state member of theOAS96. At the beginning of its activities, the Commission used this mechanism to

the states parties are : Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic,Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, andVenezuela.95

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