Ludwig Boltzmann Institut für Menschenrechte Ludwig Boltzmann Institute of Human Rights 8. Regional Human Rights Systems: Americas & Africa Moritz Birk und Johanna Lober Ludwig Boltzmann Institute of Human Rights, Vienna University of Vienna

The Inter-American System of Human Rights Protection

Development of the Inter-American System 1889/90: First International Conference of American States 1910: Establishment of the Pan American Union (4th Int. Conference) 1948: Establishment of the Organization of American States (OAS) – 9th International Conference adopts: OAS Charter American Declaration of the Rights and Duties of Man Inter-American Charter of Social Guarantees 1959 : Creation of the Inter-American Commission on Human Rights 1969: Inter-American Convention on Human Rights, IACHR (1978) 1979: Establishment of the Inter-American Court of Human Rights 1985: Convention to Prevent and Punish Torture (1987) 1988: Protocol of San Salvador (1999) 1990: Additional Protocol to abolish the death penalty 1994: Convention on Forced Disappearances of Persons (1996); Convention on the Prevention, Punishment and Eradication of Violence against Women (1995) 1999: Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities

Organization of American States (OAS) Purposes:- Democracy and human rights - Collective security - Regional cooperation (economic/ political development) Main organs:- General Assembly; - Meeting of Consultation of Ministers of Foreign Affairs; - Permanent Council - Inter-American Juridical Committee; - General Secretariat; - the Inter-American Commission on Human Rights; Instruments:- OAS Charter - American Declaration of the Rights and Duties of Man Members: All 35 independent States of the Americas Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba (-1962), Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, United States of America, Uruguay, and Venezuela (all 1948); Barbados, Trinidad and Tobago (1967); Jamaica (1969); Grenada (1975); Suriname (1977); Dominica (Commonwealth of), Saint Lucia (1979); Antigua and Barbuda, Saint Vincent and the Grenadines (1981); The Bahamas (Commonwealth of) (1982); St. Kitts & Nevis (1984); Canada (1990); Belize and Guyana (1991).  wide range of States, including poorest countries of the world (e.g. Haiti) and former military dictatorships (e.g. Argentina, El Salvador)

Inter-American Commission on Human Rights established 1959, seat In Washington D.C., USA 1967: became a Charter organ with the principal function to “promote the observance and protection of human rights and to serve as a consultative organ of the OAS in these matters”, substance based on the American Declaration of the Rights and Duties of Man 1969: became the Convention organ to the the American Convention on Human Rights dealing with individual complaints Decides on the admissibility of complaints Can adopt a report with facts, conclusions and recommendations to be transmitted to the State Party 1979: New Statute defining human rights as those enumerated in the Declaration and Convention 2001: New Rules of Procedure (allowing victims and representatives to participate independently in all phases of the proceedings) Members: Seven experts from different nationalities; acting in personal capacity; nominated by OAS member States; elected for 4 years

Inter-American Commission on Human Rights Functions and powers: Political tools (art. 18 Statute): - establishes rapporteurships (e.g. Freedom of Expression, Rights of Women, Migrant Workers, Children, Indigenous People) - recommendations, reports, inquiries, on-site investigations (art. 18 Statute) - mainly used in the 70s/80s: : 9 on-site visits and 19 reports : Report on disappearances in Argentina : Report on Guatemala : Report on Peru Quasi- judicial tools (art. 19, 20 Statute): - Individual communications from individuals of all OAS member States relating to the American Declaration (art. 20) and of the States parties to the Convention (art. 19) - Advisory opinions on the Convention and other relevant human rights treaties (art. 19)

Inter-American Court on Human Rights established 1979, seat in San José, Costa Rica receives complaints from Commission or State parties (not directly from individuals) Interprets and applies IACHR in individual cases – binding decisions Can afford compensatory damages Issues Advisory Opinions on the interpretation of any treaty relevant to the protection of human rights in the Americas at the request of any OAS member State, the Commission or other OAS organs Enforcement and follow-up of decisions: Press releases, reports to the OAS General Assembly when member State fails to comply with judgment, resolutions to “Monitor Compliance with Judgment”, Members: 7 judges of different nationalities elected by State parties

Individual complaints Inter-American Commission Issues separate admissibility decision (public) May issue precautionary or interim measures “in serious and urgent cases, … to prevent irreparable harm to persons” (no prejudgment on the merits) May call parties for hearings (confidential) Must “place itself at the disposal of the parties concerned” to seek a friendly settlement On-site investigations if “necessary and advisable” Review and the merits and request the views of State parties – decision and recommendations (not binding) with a period to comply with recommendation Submission to the Court (3 months) or submission of report Inter-American Court holds hearings: parties, witnesses and expert evidence provisional measures binding judgments and reparations

Human Rights Instruments of the Inter-American System American Declaration of the Rights and Duties of Man (1948) –includes economic, social and cultural rights (right to health, housing, food, clothing, medical care, education, work, leisure, social security, property) Inter-American Convention on Human Rights, IACHR (1978) –mainly civil and political rights and right to progressive development Convention to Prevent and Punish Torture (1987) Protocol of San Salvador (1999) –economic, social and cultural rights; only the right to association and trade union rights as well as the right to education are justiciable –Court has found no violation yet but took it into account regarding the interpretation of the IACHR –Art. 19: State reporting system to monitor progressive implementation Additional Protocol to abolish the death penalty (1990) Convention on Forced Disappearances of Persons (1996) Convention on the Prevention, Punishment and Eradication of Violence against Women (1995) Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities (1999)

IACHR - ratifications COUNTRYSIGNATURE RATIFICATION/ ACCESSION Antigua y Barbuda-- Argentina02/02/8408/14/84 Bahamas-- Barbados06/20/7811/05/81 Belize-- Bolivia-06/20/79 Brazil-07/09/92 Canada-- Chile11/22/6908/10/90 Colombia11/22/6905/28/73 Costa Rica11/22/6903/02/70 Dominica-06/03/93 Ecuador11/22/6912/08/77 El Salvador11/22/6906/20/78 Grenada07/14/78 Guatemala11/22/6904/27/78 Guyana-- Haití-09/14/77 Honduras11/22/6909/05/77 Jamaica09/16/7707/19/78 México-03/02/81 Nicaragua11/22/6909/25/79 Panamá11/22/6905/08/78 Paraguay11/22/6908/18/89 Perú07/27/7707/12/78 Dominican Republic09/07/7701/21/78 St. Kitts & Nevis-- St. Lucia-- St. Vincent & Grenadines -- Suriname-11/12/87 Trinidad & Tobago-04/03/91 United States06/01/77- Uruguay11/22/6903/26/85 Venezuela11/22/6906/23/77

Key human rights features of the Inter-American System (1) Right to Humane Treatment (art. 5 IACHR) –Right to physical, mental, and moral integrity –Aim of detention: reform and social readaption of prisoner –Reparations: Velásquez Rodríguez v. Honduras – restitution, compensation, satisfaction; Aloeboetoe et al. v. Suriname – injured parties include next of kin and dependents Disappearances –Art. 1, 18, 25, 26 American Declaration –Art. 4, 5, 7, 8, 25 IACHR –Convention on Disappearances and Convention on Torture –Velásquez Rodríguez v. Honduras (1988): “The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee.” Circumstantial or presumptive evidence sufficient Burden of proof shifts to State

Key human rights features of the Inter-American System (2) Indigenous rights –Commission and Court interpreted Declaration and Convention (right to property, political participation and non-discrimination) broadly, taking into account the ILO Convention 169 and art. 27 ICCPR to create a framework of protection – implicit collective rights –Sawhoyamaxa Indigenous Community v. Paraguay (2006) Broad interpretation of the right to property regarding traditional lands (art. 21 IACHR) Broad positive State obligations to protect the right to life Far-reaching duty of reparation (guarantee ownership over traditional lands; allocation of funds for community developments; pecuniary compensation for deaths; publication of judgment in Officials Gazette and daily newspaper)