Transcript MorrisIAHRSystem2013.. - Lawyers` Rights Watch Canada

The Inter-American
Human Rights System
of the
Organization of American States (OAS)
Prepared by Catherine Morris
7 February 2013
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The Human Rights System of the
Organization of American States
(OAS)
• Charter (applies to all OAS states)
▫ 1948 OAS Charter
▫ 1948 American Declaration of the Rights and Duties of
Man
▫ 1959 Inter-American Commission on Human Rights
• Convention (applies to States Parties)
▫ 1969/1978 American Convention on Human Rights
▫ Convention organs
 Inter-American Commission on Human Rights
 Inter-American Court of Human Rights
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OAS
General
Assembly
Convention on
the Rights and
Duties of Man
InterAmerican
Court of
Human Rights
OAS charter
InterInter-American
American
Commission
on
Commission
Human Rights
on Human
Rights
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UN
• UN Charter Chapter VIII –
allows for Regional
Arrangements
OAS
• OAS Charter Article 1 states
that the OAS is a “regional
arrangement” under Chapter
VIII of the UN Charter
• American Declaration on the
Rights and Duties of Man
references UDHR (preamble)
• American Convention on
Human Rights
•Other human rights treaties
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The OAS Charter
the 1967 "Protocol
the 1985 "Protocol
the 1992 "Protocol
the 1993 "Protocol
as amended by
of Buenos Aires",
of Cartagena de Indias“
of Washington", and
of Managua"
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• Multilateral treaty opened for signature in April 30, 1948 (21
signatories)
• In force December 13, 1951 (“when two thirds of the signatory
States have deposited their ratifications…” (Article 140) (Colombia
was the 14th in 1951).
• Current member states: 35 sovereign states of the Americas
▫ Cuba is officially a member but was expelled from participation in 1962.
The OAS lifted the suspension in 2009, but Cuba says it will not rejoin.
• Spanish, English, Portuguese, and French texts are equally
authentic (Article 139)
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Charter Principles (Article 3)
• “International law is the standard of conduct of States in
their reciprocal relations;”
• Strengthen the peace and security of the continent;
• Respect for the principle of nonintervention;
• State right to choose, without external interference, its
political, economic, and social system
• But: inter-state cooperation
• Elimination of extreme poverty
• Condemnation of wars of aggression
• International controversies settled by peaceful procedures
• “Social justice and social security are bases of lasting
peace”
• Economic cooperation
• “fundamental rights of the individual without
distinction as to race, nationality, creed, or sex;”
• Respect for the cultural values of the American countries
• “education of peoples” toward “justice, freedom, and peace.”
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Human Rights in the OAS Charter
• Article 3 (j): “the American States proclaim the
fundamental rights of the individual without distinction
as to race, nationality, creed, or sex.”
• Article 17: “each State has the right to develop its
cultural, political and economic life” and that in such
development “the State shall respect the rights of the
individual and the principles of universal morality.”
• No elaboration of these rights in the Charter.
• No institution to promote observance created by the
original Charter.
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American Declaration of the Rights and Duties of Man
• 1948 OAS resolution simultaneous with
adoption of Charter
• Predated the 1948 UDHR by a few months
• Extensive list of human rights
▫ Civil and political
▫ Economic and social (work, health,
education, benefits of culture, fair
remuneration, leisure, social security)
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Juridical status of the
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American Declaration of the
Rights and Duties of Man
• 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 OC10/89, July 14, 1989, Inter-Am. Ct. H.R. (Ser. A) No. 10 (1989
• A declaration, not a treaty (nonbinding):
▫ But the Commission & the Court have stated that the
Declaration is a source of international obligations for OAS
member States.
▫ AND the Declaration is “the text that defines the human
rights referred to in the Charter.” (Advisory Opinion OC10/89, July 14, 1989, Inter-Am. Ct. H.R. (Ser. A) No. 10 (1989)
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Inter-American Commission on Human Rights
• Created in 1959 by the Declaration of Santiago
• Established as a Charter organ in 1970
▫ Charter, Chapter XV, Article 106 (as amended by the
Protocol of Buenos Aires 1970)
• Headquarters in Washington DC
(The Commission’s role in the Convention-based part of
the system is discussed later)
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Inter-American Commission on Human Rights:
Its functions within Charter-based system
•
•
•
•
•
•
•
•
Promotion
Consultation
Drafting instruments (including the Convention)
Sponsors conferences
Publishes documents
Mediation in international and non-international armed conflicts
Country studies (on site visits, hearings, reports, recommendations)
Reporting to the General Assembly of the OAS
▫ Moral and political weight
▫ But responses of the Assembly vary.
• Individual petitions (results in recommendations)
• See Article 18 for powers with respect to the member states of
the OAS
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Membership of the Commission
• Statute of the Inter-American Commission on Human
Rights
▫ 7 members of good moral character and recognized
competence in human rights
▫ elected in a personal capacity by the General
Assembly of OAS from list of candidates proposed by
governments of the member states.
▫ Terms of 4 years; may be reelected only once
▫ no two commissioners from the same nation
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Who can complain to the Commission?
(under the Charter-based part of the system)
• Individual petitions against members of the OAS about violations of rights
in the Declaration.
• Article 20. re OAS members that are not parties to the
Convention:
 Commission to pay particular attention to observance of the human
rights in Articles I,II, III, IV, VIII, XV, XVI of the American Declaration
of the Rights and Duties of Man;
 examine communications submitted to it, examine and seek other
available information, and make recommendations to the state towards
more effective observance of fundamental human rights; and,
 Verify that domestic remedies have been exhausted before examining
communications.
• Complaints to the Commission under the Convention are
discussed later
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Inter-American Convention
Convention institutions are
• Inter-American Commission on Human Rights
• Inter-American Court of Human Rights
So… the Commission is both a Charter
institution and a Convention institution
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Types of Rights
• Civil and Political Rights (Arts. 3-25)
▫ Right to life “protected, in general, from the moment of
conception.” (article 4)
▫ humane treatment, no slavery, fair trial, freedom from ex post
facto laws, compensation for miscarriage of justice, privacy,
freedom of conscience/religion, thought/expression,
assembly/association, right of men/women to marry (consent),
right to name, rights of child (article 19), right to nationality,
property (Art 21), movement/residence, participation…
• Economic, Social and Cultural Rights (Art. 26)
▫ Additional Protocol to the ACHR in the Area of Economic, Social
and Cultural Rights (Protocol of San Salvador)
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Inter-American Convention on
Human Rights
• Adopted on November 21, 1969
• Came into force July 18, 1978
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Purpose and Philosophy of ACHR
• Preamble
▫ “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.”
▫ “…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…”
▫ in accordance with UDHR, “ideal of free men enoying
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…”
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Derogable & non-derogable rights
Article 27 “Suspension of Guarantees”.
States may derogate from its obligations in times
of war, public danger or other emergency “that
threatens the independence or security of a State
Party.”
Only to extent and for period of time strictly
necessary
Must not be inconsistent with other IL
obligations; no discrimination on ground of race,
color, sex, language, religion, social origin.
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Derogable & non-derogable rights
 No derogation of:
Article 3 (Right to Juridical Personality),
Article 4 (Right to Life),
Article 5 (Right to Humane Treatment),
Article 6 (Freedom from Slavery),
Article 9 (Freedom from Ex Post Facto Laws),
Article 12 (Freedom of Conscience and Religion),
Article 17 (Rights of the Family),
Article 18 (Right to a Name),
Article 19 (Rights of the Child),
Article 20 (Right to Nationality),
Article 23 (Right to Participate in Government), “or of the judicial
guarantees essential for the protection of such rights.”
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Ratification of the ACHR
• 25 countries have ratified
• Notable exceptions include:
▫ USA (signed 1977 but never ratified)
▫ Canada (In 2003, the Senate Standing Committee on
Human Rights recommended ratification.)
• This means Canada and USA are not subject to
compulsory jurisdiction of the Court
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Convention Complaint Process
• Who can complain under the Convention?
▫ A person, a group of persons, or an NGO may present a
petition to the Commission
• The Commission decides admissibility
• State party against which the petition has been
brought must have accepted Commission’s
jurisdiction (Article 45)
• Domestic remedies must have been exhausted or
unavailable
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ACHR Treaty Bodies
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Inter-American Commission on Human Rights
•
•
•
•
•
•
Receives, analyzes and investigates individual complaints/petitions
If admissible, Commission investigates
“Friendly resolution” possible
Commission provides private report with recommendations to State
Commission gives State time to comply
If no compliance the Commission may
▫ issue second report (public) and/or
▫ refer petition to Inter-American Court of Human Rights
• Commission may request advisory opinions from Inter-American
Court regarding questions of interpretation of ACHR
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ACHR Treaty Bodies
Inter-American Court of Human Rights
• No applications directly to the Court, only on referral by
the Commission
• Adjudicative jurisdiction only when State party against which a case
is brought has accepted Court’s binding jurisdiction (Article 62)
• The Court considers cases and makes binding decisions
• OAS Member States may consult Court on the interpretation of
Convention
• Court may also issue opinions on compatibility of a State’s domestic
laws with Convention
American
Declaration on the
Rights and Duties of
Man
All OAS member states are
bound by the Charter (a
treaty).
Declaration is not a treaty,
but has been ruled a
source of international
obligations for OAS States
& defines human rights
referred to in the Charter.
Petitions about violations
are made to the
Commission.
Commission’s decisions
are nonbinding.
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American Convention
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on Human
Rights
2013
OAS member states
choose to ratify the
Convention
Treaty: Ratifying States
accept jurisdiction of
Commission (Art 45) &
Court (Art. 62)
Petitions are made to the
Commission.
Commission may refer
the case to the Court.
Court decision is
binding.
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Other instruments
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 Inter-American Convention to Prevent and Punish Torture
 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
 Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women “Convention of Belem do Para”
 Inter-American Convention on Forced Disappearance of Persons
 Inter-American Convention on the Elimination of All Forms of
Discrimination against Persons With Disabilities
 Inter-American Democratic Charter
 Declaration of Principles on Freedom of Expression
 Principles and Best Practices on the Protection of Persons Deprived of
Liberty in the Americas
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Rapporteurships and Units
• Rapporteurships:
▫ Rights of Indigenous Peoples (1990)
▫ Rights of Women (1994)
▫ Rights of Migrant Workers and Their Families (1996)
▫ Freedom of Expression (1997)
▫ Rights of the Child (1998)
▫ Human Rights Defenders (Unit 2001; Rapporteurship 2011)
▫ Rights of Persons Deprived of Liberty (2004)
▫ Rights of Afro-Descendants & against Racial Discrimination
(2005)
• Units:
▫ Unit on the Rights of Lesbian, Gay, Trans, Bisexual and
Intersex Persons (2011)
▫ Unit on Economic, Social and Cultural Rights (2012)
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Case study: Inter-American Court of Human Rights: AwasTingni Case
The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment
of August 31, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001)
• 1995: Nicaragua granted logging concession
Korean lumber company SOLCARSA on >n
62,000 hectares of Awas Tingni indigenous
community’s ancestral lands
• 2000: Awas Tingni Community petitioned,
alleging violations of the Convention:
• Article 21: Right to property:
• Article 25: Right to judicial protection
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AwasTingni Case (continued)
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• 2001: The Court:
• Found both rights were violated
• Upheld collective rights of indigenous peoples to land & resources
• Ruled that the “State must adopt in its domestic law… the legislative,
administrative, and any other measures necessary to create an effective
mechanism for delimitation, demarcation, and titling of the property
of indigenous communities, in accordance with their customary law,
values, customs and mores…”
• Ordered the State to pay “reparation for immaterial damages, in the
course of 12 months, … US$50,000… in works or services…”
• Ordered the State to pay to Awas Tingni US$30,000 expenses & costs
• The first binding decision of an international tribunal upholding
collective land & resource rights of indigenous peoples against a State
failing to do so.
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AwasTingni Case (continued)
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Then what?
 2002: Court order of 2001, required progress reports from Nicaragua on the
demarcation process every 6 months. No reports filed.
 2003: Court issued resolution Sept 2003 requiring Nicaragua to take necessary
measures “without delay.”
 2003: Awas Tingni sued the government in the Nicaragua Appeals Court for
noncompliance.
 March 2008: UN HRC (re ICCPR) (pdf) comments in Concluding Observations
about continuing delays in titling.
 December 2008: titling finally done. James Anaya, UN SR for Rights of
Indigenous Peoples attends the ceremony
 Who assisted the Awas Tingni community?
▫
▫
▫
▫
University of Arizona Indigenous Peoples & Law Program (IPLP), including students.
Indian Law Resource Center,
A New York law firm
Nicaraguan lawyers
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More Resources
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 Organization of American States: www.oas.org
 Basic Documents Pertaining to Human Rights in the Inter-American
System: Summary of the basic documents and institutions:
http://www.cidh.oas.org/Basicos/English/Basic.TOC.htm
 Inter-American Commission on Human Rights (IACHR) Official
Website: http://www.cidh.org/
 Inter-American Court of Human Rights official website:
www.corteidh.or.cr
 Child Rights Information Network: Glossary on the Inter-American
System of Human Rights
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More Resources
(continued)
C. Morris, 7 January 2013
 National Association of Women and the Law (NAWL). Ratifying the
American Convention on Human Rights: The Stakes for Women, 2003.
http://www.nawl.ca/ns/en/documents/Pub_Brief_AmConvHR03_en.pdf
 NAWL, NAWL will not endorse ratification of the American Convention
until we have the assurance that women’s reproductive rights, including the
right to abortion, will be effectively guaranteed. NAWL, February 2004.
http://www.nawl.ca/en/pub-archives/open-letters-archives-hidden/159womens-reproductive-rights-and-the-american-convention-on-humanrights
 Mary Cornish and Victoria Shen. “Ten Reasons Canada should Ratify the
American Convention on Human Rights.” Canadian Bar Association, 2006,
http://www.cba.org/CBA/Sections_International/pdf/tenreasonsforACHRr
atification.pdf
 Senate Standing Senate Committee on Human Rights. Enhancing Canada's
Role In The OAS: Canadian Adherence To The American Convention On
Human Rights, 2003,
http://www.parl.gc.ca/Content/SEN/Committee/372/huma/rep/rep04may
03-e.htm