Researching the Inter-American System of Human Rights

By Francisco A. Avalos

Francisco A. Avalos joined the James E. Rogers College of Law in 1982 as the Foreign and International Law Librarian. His area of expertise is Latin American legal research with an emphasis on Mexico. He has written extensively and made many presentations in this area of the law. Mr. Avalos has served as Secretary-Treasurer and Chairperson of the Foreign, Comparative, and International Law SIS of the American Association of Law Libraries and served on the Index to Foreign Legal Periodicals Advisory Committee. His current research interests include legal translation and the pre-Columbian legal systems of the Americas. The third edition of his book the “Mexican Legal System” been released. He updated his article on the legal citation for the 20th edition of the Blue Book. He just completed his most recent monograph titled the “Legal History of Mexico: The Discovery to the Present (William Hien Publications). Mr. Avalos retired in 2009 and now is the Librarian for the Kozochyk National Law Center.

Published November/December 2022

(Previously updated by Francisco A. Avalos in July/August 2016)

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Table of Contents

Preface

The purpose of this research guide is twofold. The first purpose is to serve as a document that will give the reader a basic understanding of the Inter-American System of Human Rights by presenting a brief history of the Inter-American System of Human Rights, the institutional organs through which the System functions and the enabling instruments of the System. The second purpose is to serve as a point of departure for in-depth research. My comments will be limited to the mission, the internal structure, the administrative organization, and the research materials available at the Inter-American Commission on Human Rights website. I have also included citations to secondary resources both in print and electronic that I find could aid in the understanding of the Inter-American Commission on Human Rights. Finally, I have attempted to eliminate electronic research resources that only duplicate materials and do not offer original resources or original thought.

Introduction

The objective of this guide is to provide the researcher with a brief understanding of the historical development of the Inter-American system of human rights and of its resulting complexity. It is not purported to comment extensively on the Inter-American case law; rather it discusses the most salient institutional features of the system, and it then directs the reader to a variety of sources on the system’s law in action.

The guide summarizes the events and debates that led to the adoption of the American Declaration of the Rights and Duties of Man by the Organization of American States (OAS) in 1948 and to the negotiation and subsequent entry into force of the American Convention on Human Rights in 1978. It then introduces the reader to a brief discussion of the content of less-known regional human rights treaties associated to the American Convention.

In turn, the guide discusses the composition, competence as well as selected provisions of the rules of procedure of the two monitoring bodies of the Inter-American system of human rights: the Inter-American Commission on Human Rights, a principal organ of the OAS, whose headquarters are in Washington D.C., U.S.A., and the Inter-American Court of Human Rights, created by the American Convention and whose headquarters are in San Jose, Costa Rica. The guide also offers a glimpse into the activities performed and the case law delivered by both the Commission and the Court in 2009 through a summary of their latest Annual Reports. Finally, in the spirit of the GlobaLex project, the guide directs the reader to additional sources of information.

Since the end of the Second World War and the establishment of the United Nations international human rights have been acknowledged and promoted as rights that belong to each human being on earth. Human rights have been expounded at the international level and at the regional level. In the western hemisphere the Organization of American States has taken the leadership in monitoring, promoting and protect human rights through the Inter-American Human Rights System. The genesis of the Inter-American human rights system can be traced back to the Ninth International Conference of American States that took place in Bogotá, Colombia from March 30 to May 2, 1948. In that conference the American States of North and South America produced two momentous documents. One of the documents was the Charter of the Organization of American States (OAS) whose main thrust was the peaceful co-existence of the North and South American countries through cooperation and mutual respect.[1] The issue of human rights was seen as a critical part of the Charter Organization of the American States. The democratic principles expounded in the Charter could only stand on a foundation of human right principles where the dignity and aspirations of mankind were expressed and respected by the state. According to the Charter the state exists to safeguard and promote these inherent rights of its people. The second document was the American Declaration of the Rights and Duties of Man (also known as the Bogota Declaration).[2] These two instruments are the foundation on which Inter-American Human Rights were built. The next significant document to appear on the scene was the American Convention on Human Rights followed by the establishment of the Inter-American Court of Human Rights. Since the inception of these four instruments, there have been several other human rights instruments and institutions added to the Inter-American human rights system. There have also been international human rights instruments and institutions such as the Charter of the United Nations,[3] the Universal Declaration of Human Rights,[4] Human Rights Council,[5] International Bill of Human Rights,[6] and treaty base human rights instruments and institutions.[7]

1. Institutional and Normative Preliminary Points

While the Inter-American system of human rights is in force throughout the 35 member states of the OAS, different levels of commitment toward the common goal of promoting and protecting human rights can be observed in the region. Such a differentiation has been made possible thanks to the dual institutional structure of the Inter-American system of human rights: one sub-system having evolved from the adoption of the Charter of the OAS and the other created by the entry into force of the American Convention of Human Rights.[8]

The first sub-system encompasses those OAS member states that remain subject to the law of the American Declaration of the Rights and Duties of Man vis-à-vis the OAS Charter, as well as to the recommendations issued by the Inter-American Commission on Human Rights under the American Declaration. As of 2010, 11 OAS member states comprise this category: Antigua and Barbuda, The Bahamas, Belize, Canada, Cuba,[9] Guyana, Saint Lucia, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Trinidad and Tobago,[10] and the United States of America.

The second sub-system comprises OAS member states that are parties to the American Convention on Human Rights and have also accepted the Inter-American Court’s contentious jurisdiction. These states are subject to the law of the binding judgments issued by the Inter-American Court in cases referred to it by the Inter-American Commission and, concurrently, to the law of the Inter-American Commission’s resolutions and recommendations. States belonging to the second sub-system are committed to honor both the American Declaration and the American Convention. As of 2010, 21 OAS member states belong to this category: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras,[11] Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay and Venezuela.

Lastly, adding another layer of complexity to this institutional duality, there are three OAS member states that are parties to the American Convention but have not yet accepted the contentious jurisdiction of the Inter-American Court. Thus, Dominica, Grenada, and Jamaica are subject to the law of the Inter-American Commission’s resolutions with respect to both the American Declaration and the American Convention.[12]

As a result of this institutional multiplicity, the Inter-American system of human rights is governed by fluid interactions between soft and hard regional law,[13] both primary and secondary.[14] Primary soft law is arguably represented by the content of the American Declaration of the Rights and Duties of Man, whereas primary hard law encompasses the provisions contained primarily by the American Convention of Human Rights, its Optional Protocols and other topically arranged Inter-American human rights treaties. In turn, secondary soft law allegedly refers to the recommendations issued by the Inter-American Commission,[15] whereas secondary hard law comprises the judgments and advisory opinions rendered by the Inter-American Court.

2. Primary Law: Instruments

2.1. Charter of the Organization of American States and Protocols

The preamble of the Charter states:

“Convinced that the historic mission of America is to offer to man a land of liberty, and a favorable environment for the development of his personality and the realization of his just aspirations;

Confident that the true significance of American solidarity and good neighborliness can only mean the consolidation on this continent, within the framework of democratic institutions, of a system of individual liberty and social justice based on respect for the essential rights of man”

The issue of human rights is furthered articulated in the following chapter and articles. Chapter VII of the Charter is titled “Social Standards” and is composed of two articles stating:

  • Articles 28: The Member States agree to cooperate with one another to achieve just and decent living conditions for their entire populations.
  • Article 29: The Member States agree upon the desirability of developing their social legislation on the following bases:
  • All human beings, without distinction as to race, nationality, sex, creed or social condition, have the right to attain material well-being and spiritual growth under circumstances of liberty, dignity, equality of opportunity, and economic security;
  • Work is a right and a social duty; it shall not be considered as an article of commerce; it demands respect for freedom of association and for the dignity of the worker; and it is to be performed under conditions that ensure life, health and a decent standard of living, both during the working years and during old age, or when any circumstance deprives the individual of the possibility of working.

Chapter VIII is titled “Cultural Standards” and is composed of two articles that state, Article 30: The Member States agree to promote, in accordance with their constitutional provisions and their material resources, the exercise of the right to education, oil the following bases:

  • Elementary education shall be compulsory and, when provided by the State, shall be without cost;
  • Higher education shall be available to all, without distinction as to race, nationality, sex, language, creed or social condition.

Article 31: The Member States agree to promote, in accordance with their constitutional provisions and their material resources, the exercise of the right to education, oil the following bases:

  • Elementary education shall be compulsory and, when provided by the State, shall be without cost;
  • Higher education shall be available to all, without distinction as to race, nationality, sex, language, creed or social condition.”

The United Nations Charter

Protocol of Amendment to the Charter of the Organization of American States (A-50) “Protocol of Cartagena de “Indias”, December 5, 1985.

Protocol of Amendments to the Charter of the Organization of American States (A-56) “Protocol of Washington”, December 14, 1992.

Protocol of Amendment to the Charter of the Organization of American States (A-58) “Protocol of Managua”, June 10, 1993. Last viewed 6/20/2022

2.2. American Declaration of the Rights and Duties of Man

The Inter-American system of human rights was born at the same time that the OAS began as a political organization.[16] One of the paramount principles of the OAS has since been the respect of “the fundamental rights of the individual without distinction with respect to race, nationality, creed or sex.”[17] The Charter of the OAS was signed on April 30, 1948 at the Ninth International Conference of American States convened in Bogota, Colombia.[18] In order to delineate the basic rights that were to be protected, the OAS member states adopted the American Declaration of the Rights and Duties of Man at the Bogota Conference in the form of a resolution.[19] The American Declaration is the first international (regional) human rights instrument of the modern era, adopted more than six months before the Universal Declaration of Human Rights.[20]

Four major contributions to the development of the Inter-American system of human rights can be attributed to the American Declaration of the Rights and Duties of Man. According to Cancado Trindade, these contributions are:[21]

  • the conception of human rights as inherent to the human person;
  • the integral understanding of human rights (encompassing civil, political, economic, social and cultural rights);[22]
  • the normative basis of protection vis-à-vis OAS member states not parties to the (subsequent) American Convention on Human Rights; and
  • the correlation between rights and duties.[23]

By the time 21 American states met to establish the Organization of American States (OAS) in 1948, most Latin American states, in addition to the United States, were unwilling to adopt a binding Inter-American human rights instrument. Indeed, only eight states supported the adoption of a separate human rights treaty; furthermore, six states advocated the incorporation of the American Declaration of the Rights and Duties of Man into the OAS Charter.[24] While this proposed incorporation was not achieved, it guided the subsequent argument concerning the hardening process of the Declaration.

Although originally adopted as a resolution and not as a treaty, both regional monitoring human rights bodies have recently held that the American Declaration currently represents a source of international obligations for all the OAS member states. Thereby, the regional bodies took into consideration the fact that the American Declaration has originally been rooted in the idea that “the international protection of the rights of man should be the principal guide of an evolving American law.”[25] Under this premise, the Inter-American Court held that:

The Court finds it necessary to point out that to determine the legal status of the American Declaration it is appropriate to look to the Inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948.[26]

Consequently, some elements pertaining to the evolution of Inter-American human rights law prove to be instrumental in understanding the current binding nature of the American Declaration. Indeed, the Inter-American Commission was established by a resolution ten years after the adoption of the American Declaration and, a year later, the Commission’s Statute was drafted and approved by the OAS member states. The 1960 Statute defined “human rights” by explicit reference to the content of the American Declaration.

Beginning in 1960, the Inter-American Commission had been an entity of uncertain status until it was incorporated in the OAS Charter as one of the primary bodies of the organization by a Charter amendment that came into force in 1970.[27] By a process of “double incorporation” (in which the American Declaration becomes part of the statute of the Inter-American Commission and, subsequently, the Inter-American Commission is recognized as the primary monitoring body under the OAS Charter), the American Declaration arguably hardened, by implicitly becoming a key part of the binding Charter.[28] In turn, the Inter-American Commission adopted the “double incorporation” thesis in a petition concerning the right to life lodged against the United States in 1981.[29] In 1987, once again in a case against the United States but this time with regard to a juvenile death penalty, the Inter-American Commission stated that:

As a consequence of articles 3 (j) [current 3 (l)], 16 [current 17], 51 (e) [current 53 (e)], 112 [current 106] and 150 [current 145] of the Charter,[30] the provisions of other instruments of the OAS on human rights acquired binding force. Those instruments, approved with the vote of the U.S. Government, are the following: American Declaration of the Rights and Duties of Man; Statute and Regulations of the IACHR [Inter-American Commission] (…) The Statute provides that, for the purpose of such instruments, the IACHR is the organ of the OAS entrusted with the competence to promote the observance of and respect for human rights. For the purpose of the Statute, human rights are understood to be the rights set forth in the American Declaration in relation to States not parties to the American Convention on Human Rights.[31]

Subsequently, the Inter-American Court furthered this hardening process by agreeing with the Inter-American Commission in its key Advisory Opinion 10/1989. Remarkably, the Inter-American Court affirmed that the fact “that the Declaration is not a treaty does not, then, lead to the conclusion that it does not have legal effect.”[32] Rather, the Inter-American Court stated that:

It may be said that by means of an authoritative interpretation, the member states of the Organization have signaled their agreement that the Declaration contains and defines the fundamental human rights referred to in the Charter. Thus the Charter of the Organization cannot be interpreted and applied as far as human rights are concerned without relating its norms, consistent with the practice of the organs of the OAS, to the corresponding provisions of the Declaration.[33]

Despite the Inter-American Commission and the Inter-American Court’s position concerning the legal nature of the American Declaration, many OAS member states that are not parties to the American Convention have refused to acknowledge the American Declaration’s proclaimed binding force and, consequently, systematically disregard the Inter-American Commission recommendations issued against them.[34] This observation highlights the fact that the long-term question may not be whether human rights hard aw is, in fact, more likely than arguable soft law to induce compliance, but whether it is so perceived by key human rights stakeholders, such as NGOs, issue networks, elites, the media and domestic judiciaries.

American Declaration of the Rights and Duties of Man. The Declaration states in part in the preamble:

Whereas:

The American peoples have acknowledged the dignity of the individual, and their national constitutions recognize that juridical and political institutions, which regulate life in human society, 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 occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state but are based upon attributes of his human personality.

The preamble of the Declaration goes on to state:

All men are born free and equal, in dignity and in rights, and, being endowed by nature with reason and conscience, they should conduct themselves as brothers one to another.

The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty.

Duties of a juridical nature presuppose others of a moral nature which support them in principle and constitute their basis.

Inasmuch as spiritual development is the supreme end of human existence and the highest expression thereof, it is the duty of man to serve that end with all his strength and resources.

Since culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power.

And, since moral conduct constitutes the noblest flowering of culture, it is the duty of every man always to hold it in high respect.

The American Declaration of the Rights and Duties of Man is organized into two chapters and 38 articles.[35] Chapter 1 is titled “Nature and Purposes.” Articles 1 through 28 articulate the rights with which all human beings are born. These rights cover social, political, religious, education, economic, juridical, and personal security of the individual and family. Chapter 2, Articles 29 through 38 articulate the duties incumbent upon all individuals. These duties include duties include civic, domestic, political, fiscal and domestic duties.

In international law, treaties, by definition, are legally binding on the parties that sign a treaty. “Declarations” on the other hand are not always legally binding on the parties signing the declaration.[36] Declarations are most often used to express an ideal or an aspiration by the signing parties. The term “declaration” is used for various international instruments.[37] However, declarations are not always legally binding.[38] The term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. At the time, several American Nations wanted to make the American Declaration of the Rights and Duties of Man binding but they were opposed by the United States and other American nations. The Declaration remained an official statement of the OAS and did not rise to the status of a binding treaty.

Declarations can become binding by expressing principles that have become customary law in international law through usage and acceptance at a universal level. One declaration that is considered binding law is the Universal Declaration of Human Rights. Human rights are now considered inherent rights that all human being are born with and do not require the state to bestow these rights upon an individual. The American Declaration of the Rights and Duties of Man is now seen as binding international law on the nations of the Americans. The legal basis justifying the binding nature of the Declaration lies in the treaty obligation to respect and protect human rights enshrined in the OAS Charter, a general and broad obligation that the Declaration has arguably detailed. Since 1948 the American Declaration of the Rights and Duties of Man has evolved with time and other human rights instruments have also been created to supplement the American Declaration of the Rights and Duties of Man. Also the American Court and Commission have subsequently accepted it as a source of legal obligations for OAS (Organization of American States) member States.

Relevant Links:

2.3. American Convention on Human Rights

Article 106 of the OAS Charter, as amended by the 1967 Protocol of Buenos Aires, prescribes that “(a) n Inter-American Convention on Human Rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters.” The American Convention on Human Rights was finally adopted at the intergovernmental conference convened by the OAS in San Jose, Costa Rica in 1969. Essentially, it protects the same civil and political rights as the Declaration. Unlike the Declaration, the Convention does not enumerate economic, social and cultural rights. Instead, it includes a general provision that encourages state parties to adopt progressive measures toward the full realization of the rights implicit in the economic, social, educational, scientific and cultural standards set forth in the OAS Charter.[39]

The Convention entered into force in 1978. Its drafting had been considerably delayed due to the action taken by the United Nations General Assembly in adopting two human rights covenants in 1966, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Potential conflict between both legal regimes (the “International Bill of Rights,”[40] and the prospective regional convention) prompted the OAS Committee on Legal and Political Affairs to suggest that no further action on the drafting of the American Convention should be advanced until OAS member states had been given an opportunity to renew their commitment concerning the adoption of a regional human rights treaty. Upon consultation, the vast majority of OAS member states favored the enactment of coexisting systems.

At the initiative of the United States, the Secretariat of the Inter-American Commission prepared a comparative study of the institutional premises of the UN Covenants and the draft of the regional Convention. The Secretariat concluded that both systems could in fact coexist and be coordinated. Indeed, it reaffirmed the need for the adoption of a regional perspective on human rights by advocating that:

The need for, and the desirability of, a regional convention for the Americas are based on the existence of a body of American international law built up in accordance with the specific requirements of the countries of the hemisphere. That need and desirability also followed from the close relationship that exists between human rights and regional development and integration. Consequently, the Inter-American Convention on the Protection of Human Rights should be autonomous rather than complementary to the United Nations covenants.[41]

The American Convention’s content and further application to concrete human rights conflicts by the monitoring bodies have, indeed, proved the fact that the regional perspective on human rights law is a distinctive and independent one. Concerning the distinctive features of the American Convention vis-à-vis, the UN International Covenant on Civil and Political Rights (ICCPR), Alston and Steiner highlight the following elements:

1. Article 27 of the ICCPR, which recognizes the rights of members of minority groups, has no counterpart in the American Convention; 2. the five provisions which are in the Convention but not in the ICCPR are the right of reply (Article 14), the right to property (Article 21), freedom from exile (Article 22 (5)), the right to asylum (Article 22 (7)), and prohibition of the “collective expulsion of aliens” (Article 21 (9)); 3. some provisions in the American Convention express the same general idea as in other human rights treaties but give it a distinctive specification–for example, Article 4 on the right to life that provides in paragraph 1 that the right “shall be protected by law and, in general, from the moment of conception”[42]

Furthermore, concerning the actual impact of the American Convention on the development of international human rights law, Mendez highlights some areas in which the contributions of the regional treaty have been unique in comparison to the universal (UN-based) or other regional systems.[43] First, the American Convention has the most advanced protection of free expression of any of the other international instruments; indeed, Article 13 of the Convention specifically prohibits prior censorship,[44] it specifies that freedom of thought and expression includes the freedom to seek, receive and impart information and ideas, and its Article 14 (1) incorporates a highly controversial provision among journalists and the media, i.e. the right of reply. Second, building upon the core obligations imposed on state parties to the American Convention,[45] the Inter-American Commission and the Inter-American Court held that transitional governments in the region had an affirmative duty to investigate grave breaches of human rights law and to prosecute whoever might be responsible. This double imposition led to two other innovations: the establishment of the right to truth,[46] and the illegality of amnesty laws,[47] respectively.

Moreover, the American Convention contains several provisions intended to delineate the basic commitments undertaken by member states in connection with the interpretation of the conventional clauses within national jurisdictions. For instance, Article 29 of the American Convention prescribes that:

No provision of this Convention shall be interpreted as: a) permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein; b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party; c) precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have

In turn, this clause provides a guide for addressing contested human rights claims at the domestic level, in a preemptive mode, given the possibility of individuals filing a petition against a member state who disregards this general mandate when adjudicating a constitutional conflict. This general mandate has arguably endorsed the pro homine principle as a key interpretative tool within the regional human rights system. The pro homine principle states that the interpreter should follow the most beneficial criterion when it comes to recognizing the extent of protected rights for the individual and, simultaneously, that it should opt for the most restrictive reading of clauses intended to suppress the exercise of specific human rights.[48]

Not only does Article 29 warn member states about their overarching duty not to abridge human rights beyond the limit of a “legitimate [i.e., legally enacted] restriction,”[49] it also presupposes the coordination of different instances of international (and regional) human rights protection.[50] This coordination may, nonetheless, be challenged in connection with national constitutional rights recognized by member states or with the domestic authoritative interpretation of specific human rights clauses.[51] Other provisions worth noting are Articles 27 and 28 of the American Convention. Article 27 allows derogation from a state’s Convention duties “to the extent and for the period of time strictly required in emergency situations.”

The list of non-derogable provisions include Articles 3 (right to juridical personality), 4 (right to life), 5 (right to human treatment), 6 (freedom from slavery), 9 (freedom from ex post facto laws), 12 (freedom of conscience and religion), 17 (rights of the family), 18 (right to a name), 19 (rights of the child), 20 (right to nationality) and 23 (political rights), as well as “the judicial guarantees essential for the protection of such rights”, namely habeas corpus petitions and equivalent mechanisms. Article 28 contains a federal clause that could be construed as limiting the obligations of the national government in a federal state with respect to provisions over whose subject matter only the constituent unit has jurisdiction.[52]

Finally, Article 75 of the American Convention allows for reservations to the treaty provided that they are in conformity with the provisions of the Vienna Convention on the Laws of Treaties. Accordingly, Argentina, Barbados, Chile, Costa Rica, Dominica, Dominican Republic, El Salvador, Guatemala, Mexico, Uruguay, and Venezuela have formulated reservations to substantive and procedural provisions of the American Convention at the time of their ratification or accession.

Relevant Links:

The American Convention on Human Rights was adopted on November 22, 1969 at the Inter-American Specialized Conference on Human Rights that took place on San José, Costa Rica. The preamble of the Convention States:

Preamble:

The American states signatory to the present Convention,

Reaffirming their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man;

Recognizing that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states;

Considering that these principles have been set forth in the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights, and that they have been reaffirmed and refined in other international instruments, worldwide as well as regional in scope;

Reiterating that, in accordance with the Universal Declaration of Human Rights, the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights; and

Considering that the Third Special Inter-American Conference (Buenos Aires, 1967) approved the incorporation into the Charter of the Organization itself of broader standards with respect to economic, social, and educational rights and resolved that an inter-American convention on human rights should determine the structure, competence, and procedure of the organs responsible for these matters”.[53]

  • Chapter VI, Article 33 of the American Convention on Human Rights establish the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights as the competent organs.
  • Chapter II – Civil and Political Rights
  • Chapter III – Economic, Social, and Cultural Rights
  • Chapter IV – Suspension of Guarantees, Interpretation, And Application
  • Chapter V – Personal Responsibilities
  • Chapter VII, Articles 33-51 articulate the organization, functions, competence and procedures of the Inter-American Commission on Human Rights.
  • Chapter VIII, Articles 52-73 Inter-American Court of Human Rights articulate the organization, Jurisdiction and Functions, procedures and common provisions.
  • Chapter XV, Article 106 of the Charter of the OAS establishes the Inter-American Human Rights

Commission on Human rights. Article 106 reads: “There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.”

An inter-American convention on human rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters.

Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”.

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”.

Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

2.4. Other Regional Human Rights Treaties

Article 77 of the American Convention on Human Rights allows for the list of rights and freedoms it protects to be gradually expanded by means of protocols. As a result, two protocols have entered into force thus far. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) entered into force in 1999. It establishes obligations regarding a variety of economic, social and cultural rights, subject to monitoring by OAS institutions including the body currently known as the Inter-American Council for Integral Development.[54]

In turn, the Inter-American Commission on Human Rights may formulate observations and recommendations concerning the rights enumerated in the protocol, while only two provisions of the protocol are brought within the individual petition procedure before the Inter-American Commission under the American Convention, with access to the contentious jurisdiction of the Inter-American Court. These provisions are Article 8 (1) (a) (right to organize or join trade unions) and Article 13 (right to education). As of 2010, this protocol has 15 state parties.

In addition, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty has 11 state parties in 2010. It entered into force in 1991. The Protocol prohibits capital punishment but permits ratifying States to reserve the right to apply the death penalty in wartime for extremely serious crimes of a military nature. It fails to specify an enforcement mechanism. Furthermore, there are other human rights treaties in the Inter-American system of human rights that lack the formal status of protocols to the American Convention. These include the Inter-American Convention on Forced Disappearance of Persons, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belem do Para”) and the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities.

The Inter-American Convention on Forced Disappearance of Persons and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women allow for the processing of petitions by the Inter-American Commission and, eventually, before the Inter-American Court. In turn, the Inter-American Convention to Prevent and Punish Torture requires its state parties to inform the Inter-American Commission on Human Rights of any legislative, judicial, or administrative that they adopt in application of the Convention. Finally, the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities states that a Committee for the Elimination of All Forms of Discrimination Against Persons with Disabilities shall be established and shall hold its first meeting within the 90 days following the deposit of the 11th instrument of ratification. The first meeting of the Committee was held on February 28 and March 1, 2007, in Panama City, Panama.

Relevant Links

3. Inter-American Human Rights System: Instruments and Institutions

3.1. Inter-American Commission on Human Rights and Protocols

The Inter-American Commission on Human Rights along with the Inter-American Court of Human Rights is one of the two principal institutions of the Inter-American Human Rights System charged with the promoting and the protecting of human rights of the OAS member nations. The Commission was established through a resolution passed during the Fifth Meeting of Consultation of Ministers of Foreign Affairs in Santiago, Chile, in 1959. In 1960 the Commission was formally established when the Permanent Council of the Organization approved its Statute. Along with the previously mentioned duties, the Commission also serves as a consultative organ on human rights for the Organization of American States. Chapter XV, Articles 106 of the Organization of American States state, “There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.”[55]

Current statute of the Inter-American Commission on Human Rights were approved 1979 at the ninth session of the General Assembly held in La Paz, Bolivia.[56] The Statutes are composed of what can be called chapters. The chapters are: I. Nature and Purposes; II. Membership and Structure; III. Headquarters and Meetings; IV. Functions and Powers; V. Secretariat; VI. Statute and Regulations; VII. Transitory Provisions. Articles 1 and 2 state:[57]

  • The Inter‑American Commission on Human Rights is an organ of the Organization of the American States, created to promote the observance and defense of human rights and to serve as consultative organ of the Organization in this matter.
  • For the purposes of the present Statute, human rights are understood to be:
    • The rights set forth in the American Convention on Human Rights, in relation to the States Parties thereto;
    • The rights set forth in the American Declaration of the Rights and Duties of Man, in relation to the other member states.”

Articles 18 through 20 articulate the powers and function of the Commission. Inter-American Commission on Human Rights Functions and Powers. Article 18 The Commission shall have the following powers with respect to the member states of the Organization of American States:

  • to develop an awareness of human rights among the peoples of the Americas;
  • to make recommendations to the governments of the states on the adoption of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitments, as well as appropriate measures to further observance of those rights;
  • to prepare such studies or reports as it considers advisable for the performance of its duties;
  • to request that the governments of the states provide it with reports on measures they adopt in matters of human rights;
  • to respond to inquiries made by any member state through the General Secretariat of the Organization on matters related to human rights in the state and, within its possibilities, to provide those states with the advisory services they request;
  • to submit an annual report to the General Assembly of the Organization, in which due account shall be taken of the legal regime applicable to those States Parties to the American Convention on Human Rights and of that system applicable to those that are not Parties;
  • to conduct on‑site observations in a state, with the consent or at the invitation of the government in question; and
  • to submit the program‑budget of the Commission to the Secretary General, so that he may present it to the General Assembly.

Article 19: With respect to the States Parties to the American Convention on Human Rights, the Commission shall discharge its duties in conformity with the powers granted under the Convention and in the present Statute, and shall have the following powers in addition to those designated in Article 18:

  • to act on petitions and other communications, pursuant to the provisions of Articles 44 to 51 of the Convention;
  • to appear before the Inter‑American Court of Human Rights in cases provided for in the Convention;
  • to request the Inter‑American Court of Human Rights to take such provisional measures as it considers appropriate in serious and urgent cases which have not yet been submitted to it for consideration, whenever this becomes necessary to prevent irreparable injury to persons;
  • to consult the Court on the interpretation of the American Convention on Human Rights or of other treaties concerning the protection of human rights in the American states;
  • to submit additional draft protocols to the American Convention on Human Rights to the General Assembly, in order to progressively include other rights and freedoms under the system of protection of the Convention, and
  • to submit to the General Assembly, through the Secretary General, proposed amendments to the American Convention on Human Rights, for such action as the General Assembly deems appropriate.

Article 20: In relation to those member states of the Organization that are not parties to the American Convention on Human Rights, the Commission shall have the following powers, in addition to those designated in Article 18:

  • to pay particular attention to the observance of the human rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man;
  • to examine communications submitted to it and any other available information, to address the government of any member state not a Party to the Convention for information deemed pertinent by this Commission, and to make recommendations to it, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights; and,
  • to verify, as a prior condition to the exercise of the powers granted under subparagraph b. above, whether the domestic legal procedures and remedies of each member state not a Party to the Convention have been duly applied and exhausted.”

Inter-American Commission on Human Rights, American Convention on Human Rights.

Inter-American Commission on Human Rights Administration.

3.2. Special Mechanisms of the Inter-American Commission on Human Rights: Office of the Special Rapporteur

“Starting in 1990, the Inter-American Commission began creating thematic Rapporteurship in order to devote attention to certain groups, communities, and peoples that are particularly at risk of human rights violations due to their state of vulnerability and the discrimination they have faced historically. The aim of creating a thematic Rapporteurship is to strengthen, promote, and systematize the Inter-American Commission’s own work on the issue. The IACHR had the same goal in mind when it created the Unit for Human Rights Defenders in 2001, which in 2011 was transformed into a Rapporteurship.”[58]

The duties of the Rapporteurships are to “advise the Commission in its processing of individual petitions, cases, and requests for precautionary and provisional measures related to their mandate:

  • undertake country visits to investigate human rights conditions;
  • conduct thematic reports and studies;
  • develop recommendations to Member States;
  • organize seminars, workshops, and specialized meetings;
  • raise awareness of human rights issues;
  • receive information from individuals and civil society;
  • provide the Commission with annual reports on their work; and,
  • contribute to the development of international human rights law.”[59]

Complaints; Decisions; Precautionary Measures; Hearings; Reports; Periods of Sessions; Activities and Initiatives; Media Center; Fellowships and Internships; Links.

4. Secondary Law: Regional Bodies

4.1. Inter-American Commission on Human Rights

In 1959, in Santiago, Chile, the Fifth Meeting of Consultation of Ministers of Foreign Affairs adopted a new resolution creating the Inter-American Commission on Human Rights. In the following year, the Permanent Council of the OAS approved the Statute of the Commission. The Statute described the Commission as an autonomous entity responsible for promoting respect for the rights set forth in the American Declaration.[60] Thus, the Inter-American Commission was originally conceived as a study group concerned with abstract investigations in the field of human rights.[61] Hence, the Commission’s main objective was not to investigate (least to adjudicate) isolated human rights cases but to document the existence of gross and systematic violations, characterized by the absence of a lack of effective national mechanisms for the protection of human rights and a lack of cooperation from the government concerned.[62]

To exercise pressure to improve the general condition of human rights in the state concerned, the Inter-American Commission used its statutory authority to hold meetings in any OAS member state as the basis for its self-proclaimed power to conduct on-site investigations.[63] Consequently, these fact-finding investigations and the ensuing country reports, which the Inter-American Commission regularly presented to the General Assembly of the OAS, became the most significant activity of the Commission during the first years of its existence.[64] In addition to country reports, the Commission has drafted several thematic reports in recent years.

The creators of the Inter-American Commission did not anticipate the appeal this body would have for the individual victims of human rights violations. As soon as it became known that the Inter-American Commission had been created, individuals began to send complaints about specific human rights problems within their states. Prompted by these complaints, the Inter-American Commission started its activities “with the conviction that in order to promote human rights it had to protect them.”[65]

As a result of this process, in 1965, the Commission was authorized to examine and report on communications submitted to it, thereby initiating a system of individual petitions that encompassed all OAS member states. This system added a quasi-judicial character to the Commission, which coexists until now with its original advisory, drafting and monitoring functions.[66] After its status was modified,[67] the Inter-American Commission became a preponderant actor in the protection of human rights throughout the Americas.

In 1969, with the adoption of the American Convention, the basic competence of the Inter-American Commission vis-à-vis a parallel system of individual petitions was also delineated. The Inter-American Commission was then vested with a dual role: it retained its status as an organ of the OAS, thereby maintaining its powers to promote and protect human rights in the territories of all OAS member states; in addition, it is now a monitoring body of the American Convention. In that capacity, the Inter-American Commission supervises human rights in the territories of the state parties to the American Convention in an enhanced mode.[68]

Indeed, the Inter-American Commission, comprised of seven members elected in a personal capacity for a term of four years by the OAS General Assembly, is entitled to receive petitions containing denunciations and complaints of violations of the American Convention by a state party, provided that the petitioner has exhausted the domestic judicial remedies available to him or her.[69] Petitioners may comprise any person or group of persons, or any non-governmental entity recognized in one or more OAS member states.[70] Furthermore, Article 45 of the American Convention allows state parties to declare that they recognize the competence of the Inter-American Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in this Convention.[71]

The primary objective of the Inter-American Commission’s protective function is to encourage the petitioner and the state concerned to reach a friendly settlement in their dispute.[72] If a settlement is not reached, the Inter-American Commission will draft a report setting forth the facts and stating its conclusions;[73] those conclusions may include the Commission’s proposals and recommendations on the disputed issue. Once this first report has been issued, the Commission has a period of three months to decide whether to submit the case to the jurisdiction of the Inter-American Court (provided that the state concerned has previously accepted such a contentious jurisdiction) or, if the Commission sees it fit, to prepare a new report if the state has not complied, and even to publish this latter document.[74]

Concomitantly, Article 25 of the Commission’s Rules of Procedure establishes the mechanism for precautionary measures. The provision states that in serious and urgent cases, and wherever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons. The granting of such measures and their adoption by the State shall not constitute any prejudgment on the merits of the case.[75]

Relevant Links

4.2. Special Rapporteurships and Working Groups

Article 15 of the Inter-American Commission Rules of Procedure grants the Commission the power to create Special Rapporteurships and Working Groups or Committees. The Commission may create Country Rapporteurships or Thematic Rapporteurships. There are currently 35 Country Rapporteurship, one per each OAS member state. There are also eight Thematic Rapporteurships as well as a Special Rapporteurship: Rapporteurship on the Rights of Women, Rapporteurship on the Rights of Migrant Workers and their Families, Rapporteurship on the Rights of the Child, Rapporteurship on the Rights of Indigenous Peoples, Rapporteurship on the Rights of Persons Deprived of their Personal Liberty and the Rapporteurship on the Rights of Afro-Descendants and Against Racial Discrimination.[76]

Thematic Rapporteurships are typically comprised of a commissioner and staff lawyers. The Special Rapporteur for Freedom of Expression was created as an autonomous office and is not headed by an Inter-American Commission member but by an independent specialist on the issue. Only the Special Rapporteurship for Freedom of Expression is full time. The other Rapporteurships depend on the Commissioner elected to direct them.[77] Also, the Special Rapporteur for Freedom of Expression contributes with a Chapter of its own to the Inter-American Commission’s Annual Report. Additionally, the Inter-American Commission created a Working Group on Human Rights Defenders.

Relevant Links

4.2.1. Office of the Special Rapporteurship on the Rights of Indigenous Peoples

“For the inter-American system and those who work in it, the promotion and protection of the rights of indigenous peoples is a matter of special importance. In 1972, the Commission affirmed that for historical reasons, and based on moral and humanitarian principles, States had a sacred duty to provide special protection to indigenous peoples. In 1990, the Commission established the Office of the Rapporteur on the Rights of Indigenous Peoples in order to focus special attention on indigenous peoples in America, many of whom are exposed to human rights violations because of their special vulnerability, and to strengthen, give impetus to and organize the Commission’s activities in this regard.

The importance that the Commission grants to the rights of indigenous peoples is shown in the strengthening of the Office of the Rapporteur on Indigenous Peoples, and significant progress has been achieved. As expressed by an indigenous leader: Access to the inter-American system of human rights is possible not only for lawyers, not only for doctors, but also for indigenous peoples.”[78]

4.2.2. Office of the Special Rapporteurship on the Rights of Women

“In accord with the basic principles of equality and nondiscrimination underlying the instruments of the inter-American human rights system, the Office of the Rapporteur on the Rights of Women focuses specifically on women’s rights and gender equity and equality. Since it was established in 1994, this office has played a critical role in the Commission’s task of protecting the rights of women. It has published studies on issues, helped to develop new jurisprudence on this subject within the individual case system, and supported research on various issues that affect the rights of women in specific countries of the region, through its country visits and reports. One of the basic principles that informs its work and is reflected in everything it does is the need to incorporate a gender perspective in the planning and implementation of public policies and in decision-making in all Member States.”[79]

4.2.3. Office of the Special Rapporteurship on the Rights of Migrants

“Throughout the years, the Commission has monitored the situation of people in the context of human mobility by conducting visits to countries, elaborating thematic studies and country reports, requesting information, and conducting hearings and meetings. To ensure recognition of individuals in the context of human mobility as subjects of rights and its effective enjoyment, the IACHR has also focused part of its actions to ensure that victims of human rights violations can have equal access to international justice through the mechanisms of individual cases and precautionary measures provided by the Inter-American Human Rights System. The IACHR has also fostered the development of jurisprudence and advisory opinions in relation to rights of these people.”[80]

4.2.4. Office of the Special Rapporteurship for Freedom of Expression

“The Office of the Special Rapporteur was created to stimulate awareness of the importance of the full observance of the right to freedom of expression and information in the hemisphere, given the fundamental role that these right plays in the consolidation and advancement of the democratic system.”[81]

4.2.5. Office of the Special Rapporteurship on the Rights of the Child

“The Office of the Rapporteur on the Rights of the Child of the Inter-American Commission on Human Rights was created during its 100th regular session held in Washington D.C. from September 24 to October 13, 1998, for the purpose of bolstering respect for the human rights of children and adolescents in the Americas. One of the seven Commissioners designated by the Inter-American Commission on Human Rights is responsible for the Rapporteurship

The Rapporteurship on the Rights of the Child cooperates with the analysis and evaluation of the situation of the human rights of children in the Americas. The Rapporteurship provides advice to the IACHR in the proceedings of individual petitions, cases and requests of precautionary and provisional measures which address the rights of the child. Likewise, the Rapporteurship undertakes on site visits in the OAS Member States and prepares studies and publications.”[82]

4.2.6. Office of the Special Rapporteurship on Human Rights Defenders

“In its 1998 Annual Report, the Commission highlighted the importance and ethical dimension of the work carried out by individuals and organizations dedicated to promoting, monitoring, and providing counsel in human rights. In that report, the Commission recommended that the OAS Member States take all necessary measures to protect the physical integrity of human rights defenders and to ensure they can work under appropriate conditions (1998 Annual Report, Chapter VII, Recommendation 4). After these recommendations were presented to the Member States, the OAS General Assembly adopted Resolution 1671, entitled “Human Rights Defenders in the Americas: Support for the Individuals, Groups, and Organizations of Civil Society Working to Promote and Protect Human Rights in the Americas.” In that resolution, adopted June 7, 1999, the General Assembly instructed the Permanent Council, in coordination with the Inter-American Commission, to continue studying the issue of human rights defenders in the region. In 2001, the General Assembly requested that the Commission consider preparing a study in this area (AG/RES.1818).

In December 2001, considering the General Assembly’s request, as well as civil society’s interest in having a focal point at the Inter-American Commission that would closely follow the issue of human rights defenders, the Executive Secretariat decided to establish a Unit for Human Rights Defenders. Its role would be to coordinate the Executive Secretariat’s activities in this area and, in particular, to follow the situation of human rights defenders throughout the region.

During its 141st session, held in March 2011, the IACHR decided to create an Office of the Rapporteur about Human Rights Defenders, in view of the petitions it has received and in the interest of giving greater visibility to the important role human rights defenders and justice operators have in building a democratic society in which the rule of law is in full effect. As a result, the Unit has now been turned into the Office of the Rapporteur.”[83]

  • About the Rapporteurship: Hearings; Decisions and Jurisprudence; Protection System; Reports; Activities and Initiatives; Press Releases; Links.

4.2.7. Office of the Special Rapporteurship Rights of Persons Deprived of Liberty

“Since its earliest days, the Inter-American Commission on Human Rights has devoted particular attention to the situation of persons deprived of liberty in the Americas. From its first special country reports, on Cuba and the Dominican Republic, to the ones on Venezuela and Honduras, adopted in December 2009, the Inter-American Commission has consistently referred to the rights of persons deprived of liberty. Along these lines, visits to detention centers have been a constant part of the more than 90 onsite visits this autonomous OAS body has made in the last 40 years. In addition, in the context of its litigation-related mandate, in the period 2000-2010, the Inter-American Commission has approved 59 admissibility reports and 29 reports on the merits and granted 52 precautionary measures related to violations of the human rights of persons deprived of liberty.”[84]

4.2.8. Office of the Special Rapporteurship on Rights of Persons of African Descent and Against Racial Discrimination

“During its 122nd period of sessions (February 23 – March 11, 2005), the Inter-American Commission created the Rapporteurship on the Rights of Persons of African Descent and against Racial Discrimination. The Office of the Rapporteur was charged with dedicating itself to activities of stimulating, systematizing, reinforcing, and consolidating the action of the Inter-American Commission on the Rights of Persons of African Descent and against Racial Discrimination.

The core objectives of the Office of the Rapporteur include working with OAS member States to generate awareness regarding States’ duty to respect the human rights of persons of African descent and on the elimination of all forms of racial discrimination, analyzing the current challenges that confront countries of the region in this area, formulating recommendations designed to overcome the obstacles, identifying and sharing best practices in the region with respect to this matter, and providing any technical assistance requested by member States in the implementation of the recommendations in national law and practice.”[85]

4.2.9. Office of the Special Rapporteurship on Rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons

“Gay, lesbian, bisexuals, trans and intersex persons have historically been discriminated against on the basis of their sexual orientation, gender identity, gender expression, and body diversity, and continue to be victims of discrimination, violence, persecution and other abuses, which infringes on their human rights protected by international and inter-American instruments.”[86]

4.2.10. Unit on Economic, Social and Cultural Rights

“Economic, social, and cultural rights constitute one of the most relevant issues and one of the most complex challenges at this time in the Hemisphere. While most of the constitutions and national statutes of States in the region recognize rights such as the right to health, the right to education, and the right to adequate housing, and while there have been undeniable social gains in recent years, Latin America continues to suffer from the worst income distribution in the world. Among other things, the region faces grave situations of extreme poverty, hunger and malnutrition, particularly impacting the access of historically marginalized populations subject to discrimination to the conditions necessary for ensuring a dignified life. Accordingly, the persistence of situations of social exclusion, often with structural roots, even in the economically strongest states, renders null and void the economic, social, and cultural rights of a large part of the population, at the same time as it constitutes a barrier to the enjoyment of all other human rights.”[87]

Articles 1 and 2 Statute of the Inter-American Court on Human Rights read as follows:

  • Article 1. Nature and Legal Organization: The Inter-American Court of Human Rights is an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights. The Court exercises its functions in accordance with the provisions of the Convention and the present Statute.
  • Article 2. Jurisdiction: The Court shall exercise adjudicatory and advisory jurisdiction:

    • Its adjudicatory jurisdiction shall be governed by the provisions of Articles 61, 62 and 63 of the Convention, and
    • Its advisory jurisdiction shall be governed by the provisions of Article 64 of the Convention.
  • Chapter III Articles 12-14 cover the structure of the Court.
  • Chapter VI, Articles 15-21 cover the duties and responsibility of the court judges.
  • Chapter V, Articles 22-26 cover the functions of the Court:
  • Chapter VI, Articles 27-30 cover the relationship of the Court with governments and other organizations.
  • Chapter VII, Articles 31-32 cover the amendments the entry into force of the statutes

Relevant links

“The Court and Commission’s human rights promotion work is complemented by the Inter-American Institute of Human Rights, an autonomous research and educational institution based in San José, Costa Rica. The Institute (best known by its Spanish acronym “IIDH”) provides free online courses on various human rights topics, publishes numerous books, operates a Digital Library (navigation in Spanish), moderates a discussion listserv, and organizes seminars and workshops for civil society throughout the Americas. In addition to its online resources, the Institute is open to visitors seeking research assistance, use of the physical library, or to purchase publications.”[88]

Documents Used for Interpreting: Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

Inter-American Particular Topic Instruments.

4.3. Secondary Materials on the Inter-American Human Rights System

The following are Human Rights Academic Resource Centers.

4.4. Inter-American Court of Human Rights

At the time of its adoption, in 1969, the American Convention filled the need for a definition of regional human rights in a binding form. It also added a layer of complexity to the mandate of the Commission,[89] and created a judicial monitoring body of regional human rights law, namely, the Inter-American Court of Human Rights. Composed of seven judges irrespective of the number of states that recognize its jurisdiction,[90] the Inter-American Court is formally an organ of the American Convention and not of the OAS. However, its members may be nationals of any member state of the OAS, whether or not they are parties to the American Convention.[91] The American Convention also permits states to appoint ad hoc judges in inter-state cases in which no judge of either nationality is sitting.[92]

The Inter-American Court joined the Inter-American Commission in the task of interpreting the American Convention.[93] The former has a broad judicial mandate in contentious cases. If a state has accepted the Inter-American Court’s contentious jurisdiction, the Court has the power to declare a state party to the Convention in breach of its treaty obligations and to order reparations.[94] While the judgment of the Court is final and not subject to appeal, any of the parties may request the Court to interpret its decision in case of disagreement as to the meaning and scope of the judgment.[95]

Only state parties to the American Convention and the Inter-American Commission are empowered to submit cases under the Inter-American Court’s adjudicatory jurisdiction.[96] Individual petitioners seeking redress from human rights violations not dealt with at the domestic level are entitled to submit their complaint to the Inter-American Commission.[97] Nonetheless, a partial surrogate for individual access to the Inter-American Court has been developed through amendments to the Rules of Procedure of the Commission and the Court. Once a case is submitted to the Court, the Court’s Rules of Procedure provide full procedural opportunity for the individual to take part through chosen representatives rather than to rely on the Commission’s presentation.[98]

Moreover, if a presumed victim does not have legal representation in the proceedings before the Inter-American Court, Article 37 of the Rules of Procedure establishes that the Court may appoint, on its own motion, a defender to represent him or her during the processing of their case. The Legal Assistance Fund of the Inter-American Human Rights System will cover the defender’s fees.[99]

In turn, the Inter-American Court may, in cases of extreme gravity and urgency, and when necessary to avoid irreparable injury to people, adopt the provisional measures, as it deems pertinent in matters it has under consideration.[100] With respect to a case not yet submitted to it, the Inter-American Court may act at the request of the Inter-American Commission. Furthermore, the Court also has an advisory jurisdiction that may be invoked by any member state of the OAS and by the main bodies of the organization, including the Inter-American Commission.[101]

Finally, unlike the European Court of Human Rights, the Inter-American Court performs the supervision of the states’ compliance with its own judgments. While the monitoring procedure established by the European Council of Ministers is arguably a politically charged process in which the appraisal upon compliance might function as a bargaining chip for other unrelated concerns of the states, the supervision established by the Inter-American Court is allegedly immune from that critique. According to Article 65 of the American Convention:

[t]o each regular session of the General Assembly of the Organization of American States (hereinafter OAS) the Inter-America Court shall submit, for the Assembly’s consideration, a report on its work during the previous year. It shall specify, in particular, the cases in which a state has not complied with its judgments, making any pertinent recommendations

The Inter-American Court has read this provision as allowing it to issue ad hoc judgments assessing whether a state has complied with the remedial measures imposed upon it by the Court. Thus, the Inter-American Court has taken upon its shoulders the need to further guide states on compliance strategies. The procedure for monitoring compliance with the judgments and other decisions of the Court requires the submission of reports by the state and observations to those reports by the victims or their legal representatives. In turn, the Commission presents observations to the state’s reports and to the observations of the victims or their representatives. Interestingly, the Court may require from other sources of information relevant data regarding the case to evaluate compliance. To that end, the Court has been authorized to request the expert opinions or reports that it considers appropriate.[102] In case of a finding of non-enforcement, additional, more detailed obligations may be imposed upon the the state to ensure compliance.

In 1959, in Santiago, Chile, the Fifth Meeting of Consultation of Ministers of Foreign Affairs adopted a new resolution creating the Inter-American Commission on Human Rights. In the following year, the Permanent Council of the OAS approved the Statute of the Commission. The Statute described the Commission as an autonomous entity responsible for promoting respect for the rights set forth in the American Declaration. Thus, the Inter-American Commission was originally conceived as a study group concerned with abstract investigations in the field of human rights. Hence, the Commission’s main objective was not to investigate (least to adjudicate) isolated human rights cases but to document the existence of gross and systematic violations, characterized by the absence of a lack of effective national mechanisms for the protection of human rights and a lack of cooperation from the government concerned.

To exercise pressure to improve the general condition of human rights in the state concerned, the Inter-American Commission used its statutory authority to hold meetings in any OAS member state as the basis for its self-proclaimed power to conduct on-site investigations. Consequently, these fact-finding investigations and the ensuing country reports, which the Inter-American Commission regularly presented to the General Assembly of the OAS, became the most significant activity of the Commission during the first years of its existence. In addition to country reports, the Commission has drafted several thematic reports in recent years.

The creators of the Inter-American Commission did not anticipate the appeal this body would have for the individual victims of human rights violations. As soon as it became known that the Inter-American Commission had been created, individuals began to send complaints about specific human rights problems within their states. Prompted by these complaints, the Inter-American Commission started its activities “with the conviction that in order to promote human rights it had to protect them.”

As a result of this process, in 1965, the Commission was authorized to examine and report on communications submitted to it, thereby initiating a system of individual petitions that encompassed all OAS member states. This system added a quasi-judicial character to the Commission, which coexists until now with its original advisory, drafting and monitoring functions. After its status was modified, the Inter-American Commission became a preponderant actor in the protection of human rights throughout the Americas.

In 1969, with the adoption of the American Convention, the basic competence of the Inter-American Commission vis-à-vis a parallel system of individual petitions was also delineated. The Inter-American Commission was then vested with a dual role: it retained its status as an organ of the OAS, thereby maintaining its powers to promote and protect human rights in the territories of all OAS member states, in addition, it is now a monitoring body of the American Convention. In that capacity, the Inter-American Commission supervises human rights in the territories of the state parties to the American Convention in an enhanced mode.

Indeed, the Inter-American Commission, comprised of seven members elected in a personal capacity for a term of four years by the OAS General Assembly, is entitled to receive petitions containing denunciations and complaints of violations of the American Convention by a state party, provided that the petitioner has exhausted the domestic judicial remedies available to him or her. Petitioners may comprise any person or group of persons, or any non-governmental entity recognized in one or more OAS member states. Furthermore, Article 45 of the American Convention allows state parties to declare that they recognize the competence of the Inter-American Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in this Convention.

The primary objective of the Inter-American Commission’s protective function is to encourage the petitioner and the state concerned to reach a friendly settlement in their dispute. If a settlement is not reached, the Inter-American Commission will draft a report setting forth the facts and stating its conclusions; those conclusions may include the Commission’s proposals and recommendations on the disputed issue. Once this first report has been issued, the Commission has a period of three months to decide whether to submit the case to the jurisdiction of the Inter-American Court (provided that the state concerned has previously accepted such a contentious jurisdiction) or, if the Commission sees it fit, to prepare a new report if the state has not complied, and even to publish this latter document.

Concomitantly, Article 25 of the Commission’s Rules of Procedure establishes the mechanism for precautionary measures. The provision states that in serious and urgent cases, and wherever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons. The granting of such measures and their adoption by the State shall not constitute any prejudgment on the merits of the case.

Relevant Links

5. Annual Reports

The Annual Reports present statistics reflecting the size of the bodies’ dockets, the nature of the cases before them, the jurisdictions from which those cases are coming and, more interestingly, the current rate of compliance with the bodies’ decisions. In addition, both Reports provide specific summaries of the facts of the cases they address and of the content of the decisions delivered by both bodies. Moreover, both Annual Reports should be consulted to check on the annual budget of each monitoring body,[103] the variety of financial contributions that benefit each body and other promotional activities.

In 2009, the Inter-American Commission on Human Rights visited seven OAS member states, including Honduras and the United States. In Honduras, the Commission representatives met with the de facto government authorities and with members of the civil society; in the United States, the Commission’s Special Rapporteur on the Rights of Migrant Workers and their Families visited detention centers in Arizona and Texas. The Commission also published two country reports and six thematic reports. During its ordinary and extraordinary sessions, the Commission held 89 hearings and 44 working meetings and approved a major reform of its Rules of Procedure.

That same year, the Inter-American Commission received 1431 petitions. The states against which more petitions were submitted are Colombia (237), Mexico (232), Peru (201) and Argentina (159). In the last 4 years, the number of petitions received by the Commission did not vary much (1323 in 2008, 1456 in 2007; 1325 in 2006 and 1330 in 2005). In 2009, the Commission evaluated a total of 2064 petitions and published 62 admissibility reports, 15 inadmissibility reports, 13 reports on the merits, 4 friendly settlements and submitted 12 cases to the I/A Court.[104] It also held 89 public hearings and archived 20 cases. As of December 2009, petitions pending a final resolution from the Commission (either because the procedural steps leading to the final resolution were still not complete or because, being those steps complete, the Commission have not yet issued its opinion on the matter) amounted to 1450.

As of compliance rates, the Commission developed a chart in which it distinguishes among “total compliance” (those cases in which the state has fully complied with all the recommendations made by the Commission), “partial compliance” (those cases in which the state has partially observed the recommendations made by the Commission either by having complied with only one or some of them or through incomplete compliance with all of them) and “compliance pending” (those cases in which the Commission considers that there has been no compliance with the recommendations because no steps have been taken in that direction; because the state has explicitly indicated that it will not comply with the recommendations made; or because the state has not reported to the Commission and the latter has no information from other sources that would suggest otherwise). In 2009, the Commission monitored 128 reports. Only 16 reports were deemed to have been fully complied with, 23 reports were neglected by the states in totum and the remaining 89 petitions were only partially complied with.

Also worth noting is Chapter IV of the Inter-American Commission Annual Report (“Human Rights Developments in the Region”). This Chapter provides a more detailed assessment of the human rights situations in particular states of the Americas that have been the subject of the Commission’s close scrutiny. In some instances, this practice has served the purpose of reporting on a particular event that had taken place or was emerging or developing at the close of the Commission’s reporting cycle.

The Annual Report for 1997 set forth five criteria pre-established by the Commission to identify the member states of the OAS whose human rights practices merited special attention:

  • states ruled by governments that have not come to power through popular elections, by secret, genuine, periodic, and free suffrage, according to internationally accepted standards and principles:
  • states where the free exercise of the rights set forth in the American Convention or American Declaration have been, in effect, suspended totally or in part, by virtue of the imposition of exceptional measures, such as state of emergency, state of siege, suspension of guarantees, or exceptional security measures, and the like;
  • there is clear and convincing evidence that a state commits massive and grave violations of the human rights guaranteed in the American Convention, the American Declaration, and all other applicable human rights instruments (the Commission is especially concerned about violations such as extrajudicial executions, torture, and forced disappearances);
  • states that are in a process of transition from any of the above three situations; and
  • temporary or structural situations that may appear in member states confronted, for various reasons, with situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration.

As a result of this analysis, Colombia, Cuba, Haiti, and Venezuela have been consistently selected for conducting this more detailed political assessment of their human rights situation. In 2009, Honduras was added to the list.

As to the Inter-American Court, it held during 11 public hearings and 24 private hearings on contentious cases during its ordinary and extraordinary sessions. Like the Inter-American Commission, the Court approved a major reform to its Rules of Procedure. It also received 12 contentious cases and 10 provisional measures requests in 2009. In comparison with the prior 5 years, both the number of contentious cases being submitted to the Court and the number of provisional measures requests increased in 2009 (9 and 4 in 2008; 14 and 9 in 2007 respectively; 14 and 13 in 2006; 10 and 7 in 2005). Also in 2009, the number of cases pending before the Court (i.e., those cases, which had not been decided, plus those cases which are still at the monitoring/compliance phase) was 118. The curve describing the Court’s docket is in a constant crescendo since 2002 (39 cases in 2002, 54 in 2003, 65 in 2004, 74 in 2005, 88 in 2006, 101 in 2007 and 110 in 2008). Moreover, of the total of 120 cases decided by the Court since its creation, 80 correspond to the period from 2004 to 2009. However, it should be noticed that the bulk of pending cases before the Court in 2009 were at the monitoring phase (104), while only 14 cases were still awaiting a final decision on their merits. Another interesting data point is the fact that in 38.3% of the cases adjudicated by the Court since its inception the states have acquiesced or acknowledged completely or in part their international responsibility.

Finally, in connection with its monitoring function, the Court has conducted an extensive analysis of the number of cases in which monetary remedies have been complied with by the states. The results of such study show that 81% of these reparations have been complied with, at least partially, whereas the remaining 19% is still pending compliance. The Executive Secretariat is currently drafting a second study, this time on compliance with non-monetary reparations by state parties to the Convention.

Relevant Links

6. Additional Sources of Information

Inter-American System of Human Rights

Specialized Publications

[1] Charter of the Organization of American States; March 30-May 2, 1948. The Avalon Project Documents in Law, History and Diplomacy Lillian Goldman Law Library.

[2] American Declaration of the Rights and Duties of Man (Adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948). https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm. Last viewed 6/23/2022.

[3] Charter of the United Nations. http://www.un.org/en/charter-united-nations/. Last viewed 6/23/2022.

[4] Universal Declaration of Human Rights. http://www.un.org/en/universal-declaration-human-rights/. Last viewed 6/23/2022.

[5] Human Rights Council.. Last viewed 6/23/2022. https://www.ohchr.org/en/hrbodies/hrc/home Last viewed 12/08/2022.

[6] International Bill of Human Rights. http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf. Last viewed 6/23/2022.

[7] The Core International Human Rights Instruments and their monitoring bodies. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx. Last viewed 6/23/2022.

[8] Dinah Shelton, Regional Protection of Human Rights, 68 (Oxford University Press, 2008).

[9] In the case of Cuba, the Inter-American Commission on Human Rights has decided that although the government of Cuba was excluded from the organization, the OAS did not intend to exclude the Cuban people from the protection of international human rights law. Thus, the Inter-American Commission concluded that it retains jurisdiction ratione materiae to review individual petitions against Cuba that allege violations of a right or obligation contained in the American Declaration. See Claudio Grossman, American Declaration on the Rights and Duties of Man and The Inter-American Commission on Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed., Oxford University Press, online edition [www.mpepil.com], visited July 2010).

[10] Trinidad and Tobago decided to opt out of the contentious jurisdiction of the Inter American Court and eventually denounced the American Convention on Human Rights. For a general account of the Trinidad and Tobago case, see Natasha Parassan Concepcion, The Legal Implications of Trinidad and Tobago’s Withdrawal from the American Convention on Human Rights, 16 Am. U. Int’l L. Rev., 847 (2001).

[11] In July 4, 2009, the OAS General Assembly held a special session where it approved resolution AG/RES.2 (XXXVII-E/09) in which it decided to suspend the Honduran State from the exercise of its right to participate in the OAS. In that same resolution the General Assembly resolved “to reaffirm that the Republic of Honduras must continue to fulfill its obligations as a member of the Organization, in particular with regard to human rights; and to urge the Inter-American Commission on Human Rights to continue to take all necessary measures to protect and defend human rights and fundamental freedoms in Honduras.”

[12] It should be noted that Jamaica accepted the competence of the Inter-American Court on Human Rights to receive and examine communications in which a state party alleges that another state party has violated the human rights set forth in the American Convention, see Article 61 (1) of the American Convention.

[13] I use the words “soft” and “hard” in this guide to refer, respectively, to non-legally binding instruments and standards vis-à-vis legally binding ones. For a comprehensive description of the origin and implications of this terminology, see Dinah Shelton, Law, Non-Law and the Problem of
“Soft-Law,” in Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System, 1 (Dinah Shelton ed., Oxford University Press, 2000).

[14] For a definition of the difference between soft and hard obligations, as well as between primary and secondary law in connection with the Inter American system of human rights, see Douglass Cassel, Inter-American Human Rights Law, Soft and Hard, in Commitment and Compliance (Dinah Shelton ed.), id., at 393.

[15] According to Pasqualucci, “the [Inter-American] Court has also stated that state compliance with Commission recommendations is not obligatory (…) and the Court will not hold the state liable for failure to fulfill Commission recommendations,” see Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, 343 (Cambridge University Press, 2003). Nonetheless, states must still “heed” the recommendations contained in the Commission’s reports and do their best to implement them, pursuant to the principle of good faith. See Juan E. Mendez, The Inter-American System of Protection: Its Contributions to the International Law of Human Rights, in Realizing Human Rights. Moving from Inspiration to Impact, 111, 125 (Samantha Power and Graham Allison eds., St. Martin’s Press, 2000).

[16] According to Mendez, “[i]n some ways, the umbrella of the OAS can be a burden and a straitjacket for the human rights protection system because at times it provides the channels of undue political pressure … but there is no doubt that also it has often afforded an appropriate forum to condemn violations and to seek their redress,” see Mendez, id., at 112.

[17] Current article 3 (l), OAS amended Charter.

[18] The Charter entered into force in 1951 and has since been amended by the Protocol of Buenos Aires of 1967, the Protocol of Cartagena de Indias of 1985, the Protocol of Washington of 1991, and the Protocol of Managua of 1993. Its predecessor organizations date back to the International Union of American Republics of 1890. In the 58 years between this date and the founding of the Union’s ultimate successor, the OAS, the subject of human rights was dealt with in nine international conferences of representatives of American countries, including three Meetings of Consultation of Ministers of Foreign Affairs, and several conferences of subsidiaries bodies. See A. Glenn Mower, Jr., Regional Human Rights. A Comparative Study of the West European and Inter-American Systems, 44 (Greenwood Press, 1991).

[19] Resolution XXX, Final Act of the Ninth International Conference of American States. The American Declaration was preceded or accompanied by other instruments of varying content and legal effects, generally oriented to certain situations of categories of rights. For instance, in that same Ninth Conference, a virtually unnoticed human rights instrument was also adopted, namely, the Inter-American Charter of Social Guarantees, Resolution XXIX, Final Act of the Ninth International Conference of American States.

[20] See Claudio Grossman, American Declaration on the Rights and Duties of Man and The Inter-American Commission on Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed.), supra note 2.

[21] Antonio Augusto Cancado Trindade, The Inter-American Human Rights System at the Dawn of the New Century: Recommendations for Improvement of its Mechanism of Protection, in The Inter-American System of Human Rights, 395-6 (David J. Harris and Stephen Livingstone eds., Clarendon Press Oxford, 1998).

[22] Likewise, the Universal Declaration of Human Rights adopted a comprehensive definition of the right to be protected and promoted by the UN member states.

[23] The American Declaration–articles XXIX to XXXVIII–demands that the individual “so to conduct himself in relation to others that each and every one may fully form and develop his personality,” to “aid, support, educate and protect his minor children,” to “acquire at least an elementary education,” to “vote in popular elections,” to “obey the law and other legitimate commands of the authorities,” to “render whatever civil and military service his country may require for its defense and preservation,” to “cooperate with the state with respect to social security and welfare,” “to pay taxes,” and to “work.” These ten provisions would be mirrored within the text of the subsequent American Convention on Human Rights. Indeed, Article 32 of the Convention reads: “1. Every person has responsibilities to his family, his community and mankind; 2. The rights of each person are limited by the rights of others, by the security of all, and by the just demands of a general welfare, in a democratic society.”

[24] See Cassel, supra note 7, at 399. A much more vivid account has been provided by Slater who reported that “at the Bogota Conference in 1948, once the United States had helped defeat the troublesome Guatemalan, Uruguayan, and Brazilian efforts to create machinery for the enforcement of human rights and democracy, it was willing to agree to the vague and unenforceable Declaration of the Rights and Duties of Man,” sic see Jerome Slater, The OAS and the United States Foreign Policy, 254 (Ohio State University Press, 1967).

[25] Third Considerandum, American Declaration of the Rights and Duties of the Man.

[26] I/A Court H.R., Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of July 14, 1989, Series A No. 10, paragraph 37.

[27] Current Article 106, OAS Charter, as originally amended by the Protocol of Buenos Aires.

[28] See Cassel, supra note 7, at 397.

[29] According to the report issued by the Inter-American Commission against the United States, “[w]hile the American Convention on Human Rights clearly was intended to complement the Declaration; these two documents exist on different legal planes and must be analyzed separately. The Declaration … provides a statement of basic human rights. It was adopted by a unanimous vote, the United States participating. When the Commission was created in 1959, the Declaration gave form to its charge to protect the observance of human rights in the Americas,” emphasis added. White and Potter v. United States, Case 2141, Inter-Am C.H.R., Report No. 23/81, OEA/ Ser.L./V/II.54, Doc. 9, rev. 1, paragraph 14 b (1981).

[30] For the purposes of this account, it should be noted that Articles 53 (e) and 106 of the Charter have incorporated the Inter-American Commission on Human Rights as a primary organ of the OAS. The Commission was entrusted with the function of promoting the observance and protection of human rights within the region as well as serving as a consultative organ of the OAS in these matters.

[31] Roach and Pinkerton v. United States, Case 9647, Inter-Am C.H.R., Report No. 3/87, paragraphs 48-9 (1987), available at http://www.cidh.org/annualrep/86.87eng/EUU9647.htm. Last Viewed 6/23/2022.

[32] I/A Court H.R., Advisory Opinion OC 10-89, supra note 43, at paragraph 47.

[33] Id. paragraph 43.

[34] A paramount example of a recalcitrant state on this point is represented by the United States. The opinion of the United States concerning the binding force of the American Declaration and, consequently, the competence of the Inter-American Commission concerning the adjudication of individual complaints has been summarized as follows: “With regard to each implication or direct assertion in the Commission’s report that the American Declaration of the Rights and Duties of Man itself accords rights or imposes duties, some of which the United States has supposedly violated, the United States reminds the Commission that the Declaration is no more than a recommendation to the American States. Accordingly, the Declaration does not create legally-binding obligations and therefore cannot be ‘violated’”Response of the Government of the United States of America to the Inter-American Commission on Human Rights, Report 85/00 of October 23, 2000, concerning Mariel Cubans (Case 9903), available at http://www.cidh.org/Respuestas/USA.9903.htm [emphasis in the original]. Last Viewed 6/23/2022.

[35] American Declaration of the Rights and Duties of Man (Adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948). https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm. Last viewed 6/23/2022.

[36] United Nations Treaty Collection. Definition of key terms used in the UN Treaty Collection. https://treaties.un.org/Pages/overview.aspx?path=overview/definition/page1_en.xml. Last viewed 6/23/2022.

[37] Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, July 14, 1989, Inter-Am. Ct. H.R. (Ser. A) No. 10 (1989). Last Viewed 6/23/2022. https://www1.umn.edu/humanrts/iachr/b_11_4j.htm. University of Minnesota Human Rights Library. Last viewed 6/23/2022.

[38] International Centre for Legal Protection of Human Rights. Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights. http://www.interights.org/commonwealth-and-international-law-document/238/index.html. Last viewed 6/23/2022.

[39] See Article 26 of the American Convention which reads: “The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific and other cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires” [emphasis added].

[40] According to Jayawickrama, the “International Bill of Rights” comprises the Universal Declaration of Human Rights and the two 1966 UN Covenants (International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights). See Nihal Jayawickrama, The Judicial Application of Human Rights Law, National, Regional and International Jurisprudence, 24 (Cambridge University Press, 2002).

[41] See Mower, supra note 11, at 45-6.

[42] See Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals, 870 (Oxford University Press, 2d ed., 2000).

[43] See Mendez, supra note 8, at 117-23.

[44] This prohibition is not absolute. Prior censorship is allowed only in the case of public exhibitions for the exclusive purpose of preventing access by children and adolescents. See Article 13 (4) of the American Convention.

[45] I am referring here to the duty to respect the rights and freedoms recognized in the treaty as well as the need to ensure that all persons subject to their jurisdiction the free and full exercise of those rights and freedoms; see Article 1 (1) of the American Convention [emphasis added].

[46] The first contentious cases to reach the Inter-American Court concerned forced disappearances. The Inter-American Commission had decided to bring two cases against Honduras as a way of highlighting the seriousness of this practice and obtaining the Court’s support in the struggle to eradicate it. In the Velasquez and Godinez cases, the Inter-American Court confirmed that forced disappearances constitute crimes against humanity and, in doing so, the Court “went a long way toward establishing a widely recognized emerging principle in international law that states have an obligation to investigate, prosecute and punish certain crimes. In that sense, the Inter-American organs have contributed doctrinally to the international community’s willingness to institute forms of universal jurisdiction, such as the ad hoc war crimes tribunals for the former Yugoslavia and Rwanda and the establishment of a permanent International Criminal Court,” see Mendez, supra note 17 at 122. See also, I/A Court H.R., Case of Velasquez-Rodriguez v. Honduras, Judgment of July 29, 1988, Series C No. 4, as well as, I/A Court H.R., Case of Godinez-Cruz v. Honduras, Judgment of January 20, 1989, Series C No. 5.

[47] Recently, the Inter-American Court reaffirmed the illegality of self-amnesty laws in the Barrios Altos and Almonacid Arellano cases. See I/A Court H.R., Case of Barrios Altos v. Peru, Judgment of March 14, 2001, Series C No. 75 and I/A Court H.R., Case of Almonacid-Arellano et al. v. Chile, Judgment of September 26, 2006, Series C No. 154.

[48] See Monica Pinto, El Principio pro homine. Criterios de Hermeneutica y Pautas para la Regulacion de los Derechos Humanos The Pro Homine Principle. Interpretative tools and Guides for the Regulation of Human Rights, in La Aplicacion de los Tratados sobre Derechos Humanos por los Tribunales Locales [The Adjudication of Human Rights Treaties by Domestic Courts], 163 (Martin Abregu and Christian Courtis, eds., CELS, Editores del Puerto, 1997).

[49] Article 30 of the American Convention regulates the scope of the restrictions valid under the Convention in the following terms: “The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.” See also I/A Court H.R., The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of May 9, 1986, Series A No. 6.

[50] See, for instance, Article 29 (b) and (d) and their references to “the laws of any State Party” and “another convention to which one of the said states is a party”, as well as to the “American Declaration” and other “international acts of the same nature,” respectively.

[51] The parallel application of both domestic and regional human rights law constitutes one of the most challenging tasks for the Supreme Court of Argentina and, indeed, the primary concern behind this thesis. In this respect, it should be noted that the Inter-American system of human rights has not adopted the margin of appreciation theory devised by its European counterpart and, hence, its core directives concerning domestic application of regional human rights law are to be found in the provisions of the American Convention that I have briefly discussed. For a comprehensive analysis on this topic, among many other commentators, see Liliana Valina, El Margen de Apreciacion de los Estados en la Aplicacion del Derecho Internacional de los Derechos Humanos en el Ambito Interno The Margin of Appreciation in the Domestic Application of International Human Rights Law, in La Aplicacion de los Tratados sobre Derechos Humanos por los Tribunales Locales [The Adjudication of Human Rights Treaties by Domestic Courts] (Martin Abregu and Christian Courtis, eds.), supra note 38, at 173, 180-1.

[52] See Gerald Neuman, American Convention on Human Rights and The Inter-American Court of Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed., Oxford University Press, online edition [www.mpepil.com], visited July 2010).

[53] American Convention on Human Rights at http://www.cidh.oas.org/Basicos/English/Basic3.American%20Convention.htm. Last viewed 6/23/2022.

[54] Id.

[55] See generally Charter of the Organization of American States. http://www.oas.org/dil/treaties_A-41_Charter_of_the_Organization_of_American_States.htm#ch15. Last viewed 6/23/2022.

[56] Statute of the Inter-American Commission on Human Rights. http://www.oas.org/en/iachr/mandate/Basics/statuteiachr.asp. Last viewed 6/23/2022.

[57] Statute of the Inter-American Commission on Human Rights, Chapter I. http://www.oas.org/en/iachr/mandate/Basics/statuteiachr.asp. Last viewed 6/23/2022.

[58] Thematic Rapporteurships and Units. Inter-American Human Rights System. http://www.oas.org/en/iachr/mandate/rapporteurships.asp. Last viewed 6/23/2022.

[59] Inter-American Human Rights System. http://www.ijrcenter.org/regional/inter-american-system/#Resources_for_Advocates. Last viewed 6/23/2022.

[60] According to Mendez, “the Commission was created … basically as an organ of promotion rather than of protection;” as I will describe in the following paragraphs “the Commission had enough flexibility, however, to interpret its mandate from the start as allowing it to monitor a country’s compliance with the norms of the American Declaration,” see Mendez, supra note 8, at 112. For a theoretical differentiation between promotion and protection of human rights, see Cecilia Medina, Toward Effectiveness in the Protection of Human Rights in the Americas, 8 Transnat’l L. & Contemp. Probs. 337, 338 (1998): “[t]he promotion of human rights, meaning activities that are aimed at furthering human rights, is a vital element for this enterprise: standard-setting, education, and other developmental activities help individuals and groups by recognizing and legitimizing their rights and by enabling them to assert these rights in their own countries. A similar role is carried out through advisory activities designed to help states adapt their laws and practices to their human rights obligations … Also essential to the final objective are protective activities, such as the individual complaint mechanism and the review of human rights situations in specific countries.” [emphasis added].

[61] Cecilia Medina, The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a Joint Venture, 12 Hum. Rts. Q. 439, 440 (1990).

[62] Id. at 440-1.

[63] The 1960 statute provided, in its Article 11 (c), that the Inter-American Commission “may move to the territory of any American state when it so decides by an absolute majority and with the consent of the government concerned.” According to Buergenthal, “The Commission’s most dramatic on-site investigation took place in Argentina. There it verified the allegations of the massive forced disappearances that had occurred in that country during its dirty war. The publication of its report on the Argentine situation had a highly beneficial impact on the conditions in that country.” See Thomas Buergenthal, The Evolving International Human Rights System, 100 Am. J. Int’l L. 783, 795 (2006) [emphasis added]. Indeed, the Inter-American Commission conducted an in loco investigation in Argentina under the invitation (prompted by the Commission) of the Argentinean de facto military government. Members of the Commission visited various Argentinean cities from September 6 to September 20, 1979. As a result of the interviews conducted, the complaints it received and its visits to prisons, the Commission drafted a country report on Argentina that was presented to the OAS General Assembly in 1980. The report became a crucial element in publicly condemning the widespread practice of forced disappearances in Argentina. For an English version of the table of contents of the “Report on the Situation of Human Rights in Argentina,” see http://www.cidh.org/countryrep/Argentina80eng/toc.htm. Last Viewed 6/23/2022.

[64] Christina Cerna, The Inter-American Commission on Human Rights: its Organization and Examinations of Petitions and Communications, in The Inter-American System of Human Rights (David J. Harris and Stephen Livingstone eds.), supra note 14, at 65, 67.

[65] For a detailed account of the complaints received by the Commission in this early period, see Medina, supra note 69, at 440.

[66] These activities are chiefly represented by the on-sites visits conducted by the Commission upon OAS member states’ requests, by the drafting of special reports and resolutions and by the work conducted through the Commission’s Special Rapporteurships.

[67] As I already stated when referring to the hardening process of the American Declaration, the Protocol of Buenos Aires to the OAS Charter modified the status of the Commission from an “autonomous entity” into one of the “primary organs” of the OAS in 1967.

[68] See Medina, supra note 45, at 443.

[69] The American Convention prescribes certain admissibility requirements for the petitions submitted. The presence of these requirements is analyzed on a case-by-case basis by the Inter-American Commission. Among them, the primary ones are the need for the petitioner to pursue and exhaust, in accordance with generally recognized principles of international law, remedies under domestic laws, see Article 46, (1) (a). Nonetheless, Article 46 (2) contains important exceptions to fulfilling this requirement. Furthermore, the Inter-American Court added two more waivers to this admissibility concern in I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Series A No. 11.

[70] Article 44 of the American Convention.

[71] As of 2010, Argentina, Chile, Colombia, Costa Rica, Jamaica, Nicaragua, Peru, Uruguay and Venezuela have recognized this additional competence of the Commission.

[72] Article 49 of the American Convention.

[73] Article 50 of the American Convention.

[74] Article 51 of the American Convention. A brief but enlightening account of the interpretative difficulties posed by the ambiguous language employed in the American Convention concerning the relationship between Articles 50 and 51 can be found in Hector Faundez Ledesma, El Sistema Interamericano de Proteccion de Derechos Humanos. Aspectos Institucionales y Procesales [The Inter-American System of Human Rights. Institutional and Procedural Aspects], 268-87 (Instituto Interamericano de Derechos Humanos, 1996).

[75] See Claudio Grossman, American Declaration on the Rights and Duties of Man and The Inter-American Commission on Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed.), supra note 2.

[76] There is no website for the Rapporteurship.

[77] See Claudio Grossman, American Declaration on the Rights and Duties of Man and The Inter-American Commission on Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed.), supra note 2.

[78] Rapporteurship on the Rights of Indigenous Peoples: http://www.oas.org/en/iachr/indigenous/default.asp. Last viewed 6/23/2022.

[79] Rapporteurship on the Rights of Women. http://www.oas.org/en/iachr/women/default.asp. Last viewed 6/23/2022.

[80] Rapporteurship on the Rights of Migrants. http://www.oas.org/en/iachr/migrants/default.asp. Last viewed 6/23/2022.

[81] Rapporteurship for Freedom of Expression. http://www.oas.org/en/iachr/expression/index.asp. Last viewed 6/23/2022.

[82] Rapporteurship on the Rights of the Child. http://www.oas.org/en/iachr/children/. Last viewed 6/23/2022.

[83] Rapporteurship on Human Rights Defenders. http://www.oas.org/en/iachr/defenders/default.asp. Last viewed 6/23/2023.

[84] Rapporteurship Rights of Persons Deprived of Liberty. http://www.oas.org/en/iachr/pdl/default.asp. Last viewed 6/23/2022.

[85] Rapporteurship on Rights of Persons of African Descent and Against Racial Discrimination. http://www.oas.org/en/iachr/afro-descendants/default.asp. Last viewed 6/23/2022.

[86] Rapporteurship on Rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons. http://www.oas.org/en/iachr/lgtbi/. Last viewed 6/23/2022.

[87] Unit on Economic, Social and Cultural Rights. http://www.oas.org/en/iachr/desc/. Last viewed 6/23/2022.

[88] Inter-American Human Rights System. http://www.ijrcenter.org/regional/inter-american-system/#Resources_for_Advocates. Last viewed 6/23/2022.

[89] It will not only apply the provisions of the American Declaration but also the American Convention’s contents, within the limits of its mandate, as stated by Articles 44 to 51 of the American Convention.

[90] Article 52 (1) of the American Convention.

[91] Id.

[92] Article 55 (3) of the American Convention and I/A Court H.R., Article 55 of the American Convention on Human Rights, Advisory Opinion OC-20/09 of September 29, 2009, Series A No. 20.

[93] Veronica Gomez, The Interaction between the Political Actors of the OAS, the Commission and the Court, in The Inter-American System of Human Rights (David J. Harris and Stephen Livingstone eds.), supra note 14, at 177.

[94] Article 63 (1) of the American Convention. See also, Article 68 which prescribes that: “1. The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties; and 2. That part of a judgment that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgments against the state” [emphasis added].

[95] Article 67 of the American Convention; Article 68 of the Rules of Procedure of the Inter-American Court.

[96] Article 61 (1) of the American Convention.

[97] Article 44 of the American Convention.

[98] See Gerald Neuman, American Convention on Human Rights and The Inter-American Court of Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed.), supra note 41.

[99] On February 4, 2010, the Inter American Court approved the Rules of Procedure for the Operation of the Legal Assistance Fund of the Inter American Human Rights System, which entered into force beginning June 1, 2010. The Inter American Commission invited the member states, civil society organizations, and other experts to communicate their observations to the Commission regarding the operation of the Legal Assistance Fund.

[100] Article 27 of the Rules of Procedure of the Inter-American Court.

[101] Article 64 of the American Convention.

[102] Article 69 (2) of the Rules of Procedure of the Inter-American Court.

[103] US$ 4,488,600 for the Commission and US$ 1,919,500 for the Court.

[104] It should be noticed that the Commission only publishes those reports that it deems not to be complied with in the first instance or that is decides not to submit to the Court.