INTRODUCTION TO THE INTER AMERICAN HUMAN RIGHTS SYSTEM
The Inter-American System of Human Rights is the framework for the promotion and protection of human rights in the Americas continent, and provides to the people of the region, who have suffered violation of their human rights by the State, a legal source and judicial procedure to ensure their rights.
The system is based on the American Declaration of the Rights and Duties of Man, adopted in 1948 -the OAS Charter (1948)- and the American Convention on Human Rights, signed in 1969 and in force since 1978. This duplicity of founding documents and the supplementary agreements of specific content that have come into force over the years, make the human rights system more complex compared to others.
The system is provided with regular reports, mechanisms of individual complaints alleging violations of rights protected by the various instruments, and legal proceedings in which a court exercises its jurisdiction over a claim already dealt by a system of requests.Footnote 1 The founding documents support the jurisdiction of both the Inter-American Commission on Human Rights (IACHR), based in Washington DC, and the Inter-American Court of Human Rights in San José de Costa Rica (with only jurisdiction in contentious cases linked for the states parties to the Convention)Footnote 2.
In general, the Inter-American system has given to the region a normative and institutional set, establishing mechanisms to ensure the domestic compliance with the international obligations for states.
In the particular issue of Human Rights, the Inter-American system has faced enormous challenges for the historical context in which it has developed. Unlike e.g. the European system of human rights, which have primarily democracies with strong and independent judicial power, the Inter American system has had to deal with military dictatorshipsFootnote 3, violent repressions, intimidation to the judiciary, and several violations of people's rightsFootnote 4.
A. The American Declaration of the Rights and Duties of Man (1948)Footnote 5
Adopted by the member states of the OAS in 1948 in Bogotá, Colombia; was the first international human rights document (of the general nature) in the world. Today, it is a basic human rights instrument for the protection of victims of human rights violations in those states of the OAS that have not yet ratified the American Convention.Footnote 6
The Declaration sets a comprehensive list of civil and political rights and additional economic, social and cultural rights for the people of the signatory states, and in its second part, the duties of those citizens.
Although the Declaration is not a binding treaty, both the Inter-American Commission and the Inter American Court have established that “today the American Declaration constitutes a source of international obligations for the Member States of the OAS”.Footnote 7
B. The American Convention on Human Rights – Pact of San José (1969)
The Convention was signed in San José, Costa Rica in 1969, but came into force in 1978 when a member State of the OAS deposited the 11th instrument of ratification. The convention defines the rights and liberties of people, referring mainly to civil and political rights. However in 1988, the first Additional Protocol to the American Convention on Human Rights on “Economic, Social and Cultural Rights” or “Protocol of San Salvador”Footnote 8 was signed and it has now 13 ratifications.Footnote 9
Of the 34 OAS member States, twenty four have ratified the American Convention, twenty one have done so with the contentious jurisdiction of the Inter American Court, and nine have recognized the competence of the Inter American Commission to receive and consider communications in which a member State claims that another member has committed violations of human rights enshrined in the American Convention.
Since the American Convention, have been signed, in the issue of human rights, new treaties as the Inter-American Convention to Prevent and Punish Torture,Footnote 10 the Protocol to the American Convention on Human Rights to Abolish the Death Penalty,Footnote 11 the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belem do Pará”,Footnote 12 the Inter-American Convention on Forced Disappearance of Persons,Footnote 13 the Inter-American Convention on the Elimination of All Forms of Discrimination against Person with Disabilities,Footnote 14 the Inter-American Convention Against All Forms of Discrimination and Intolerance,Footnote 15 and the Inter-American Convention Against Racism, Racial Discrimination, and Related Forms of Intolerance.Footnote 16
THE ORGANS OF THE INTER AMERICAN HUMAN RIGHTS SYSTEM
In the Americas, human rights are protected by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The Commission is responsible for ensuring the compliance for the state members of the duties on the international treaties on human rights throughout the continent, making it through reports on the situation of human rights in different countries and hearing individual complaints of violations of human rights.
The Inter American Court, in turn, hears individual cases of human rights violations in countries that accepted its jurisdiction, and issues authoritative decisions.
A. THE INTER AMERICAN COMMISSION OF HUMAN RIGHTS
Its purpose and philosophy are based on the “search for the consolidation of a system of personal liberty and social justice based on respect for the essential rights of man, which do not derive from being a national of a certain state, but are based upon attributes of the human personality” (preamble ACHR)
The Inter-American Commission is composed of seven nationals of the Member States elected by the General Assembly of the OAS from a list of candidates submitted by all States party.
The Commission is regulated mainly by two texts: the American Declaration of the Rights and Duties of Man (promoting their application especially in the 10 State Member of the OAS that have not signed the American Convention on Human Rights) and the American Convention on Human Rights (relative to those States that have signed it).
In the field of promotion and defense of human rights, the Commission has an impulse function (issuing recommendations and opinions), an advisory role (advising States in the vindication of human rights) and a monitoring role (it is responsible for analyzing complaints against States for human rights violations from individuals, provided that they have exhausted all domestic legal remedies).
Since the entry into force of the American Convention on Human Rights, the Commission shares its oversight role with the Court. Just as in the case of European regional system in its infancy, the inter-American system provides that individuals may apply to the Commission to present their complaints and decides whether or not it raises the dispute to Court.
Proceedings for claiming Human Rights before the Inter-American Commission
1. Receipt of the request or complaint.
The complaint must be filed against one or more Member States of the OAS considering that the State has violated any of the human rights contained in the American Declaration, the American Convention, and other inter-American human rights treaties. The violation of human rights may result from the action, omission or acquiescence of the member state.
2. Review of the petition or complaint by the executive secretariat for the IACHR
Once the petition is filled, it will be under study. After those this revision, the points 3 and 4 (admissibility stage) will determine whether or not the petition is Admissible.
All the petitions submitted to the IACHR are evaluated, and a response is given.
3. Sending to the state allegedly responsible for an answer.
4. Decision on admissibility based on the exchange of information.
5. Transformation of the request in case for being admitted
In this stage of the process, the Commission analyzes the parties' allegations and the evidence submitted. The Commission has the possibility to request both State and/or petitioners for more information, evidence or documents.
6. Invitation to the petitioner and the state to reach an agreement.
7. Friendly Settlements
The friendly settlement is a process based on the willingness of both the State and the petitioners, and consists of negotiations aimed to resolving the issue without the need to reach a conclusion on the matter in dispute. Always, the process unfolds under the Commission's supervision.
8. No friendly settlement.
When it is not possible to reach a friendly settlement, the Commission decides whether or not there is a violation of human rights by the state after its analyzing of the parties' allegations.
9. The commission makes recommendations to the State to restore the violated rights
The recommendations are addressed in order to stop the acts that constitute the violation of human rights, to clarify the facts carring out an official investigation, to ensure the reparation of the harm caused, to making the needed change to the law or to require to the State the adoption or other further measures in order to guarantee the vindication of the violated rights.
10. The commission sends recommendations to the State and establishes a deadline for compliance.
11. The state complies with the recommendations.
12. End of the case.
13. The state fails to fulfill the recommendations
In this case, the Commission decides whether to publish the case or to refer the case to the Court (when the State recognizes the jurisdiction of the Court -art. 62 American Convention of Human Rights).
14. In the cases in which the State does not recognize the jurisdiction of the Court, there exists an “advisory jurisdiction” which is extended to all state member of the OAS (Art. 64 of the American Convention of Human Rights) and finally the case is sent for publication in the annual report of the OAS.
Legal tools for research in the Inter-American Commission of Human RightsFootnote 17
The website of the Commission offers access to a set of legal tools, news (press releases), analytical sources (reports) and other relevant information for the academic research and the activism in defense of human rights.
Although English is one of the official languages for the Inter-American system, several documents are only available in Spanish. Such is the case of multimedia resourcesFootnote 18 (pictures, videos and audio information). However, the webcast (live transmission) can be followed in four languages, Spanish and English mainly and also French and Portuguese. The hearing will be held in the language of those being heard and in such language will the video be available for later consultation. When a hearing is private (either at the request of state or petitioners), there is no webcast and no available audio or video recording, and neither the public nor the press is allowed to enter into the session.
The Commission offers videos of the hearings for viewing on demand. They can be accessed via YouTubeFootnote 19, the IACHR multimedia pageFootnote 20, or one of the hearing search pages, where searches can be done by topicFootnote 21 or by sessionFootnote 22 or by using the advanced search toolFootnote 23. Equally, pictures and audios of the hearings are available through its Flickr siteFootnote 24 and as the videos, on the IACHR hearings page.
According to their general procedures (art. 68 of the Rules of Procedure of the Inter-American Commission on Human RightsFootnote 25) organizations, and institutions that would like to rebroadcast the hearings are authorized to do so, giving credit to the OAS.
The information available also offers multiple resources to inform people seeking to file a petition before the CommissionFootnote 26 of some of the basic concepts they should know beforehandFootnote 27. The documents on the website also set which human rights are protected, how and when a petition may be filed, the requirements that must be met and, in general, the procedures that have to be followed.
Basic DocumentsFootnote 28 and all the basic information regarding the Commission and its work can be found easily on the website. The documents' library does not provide an advanced search form, although in the main search box on the page they can be retrieved by keyword.
Regarding the decisions, the information available is searchable only by date and the matters of admissibilitiesFootnote 29 and inadmissibilitiesFootnote 30, the friendly settlementsFootnote 31, the precautionary measuresFootnote 32, the resolutionsFootnote 33, the cases in the courtFootnote 34, the answers of the StatesFootnote 35 and the reports on petitions and casesFootnote 36. Also to be found are the meritsFootnote 37 of the petitions and the archive decisionsFootnote 38.
One of the best resources to understand the current and historical overview of the work of the Commission in the different countries of the region are the Reports. These documents are organized as Annual ReportsFootnote 39, Country ReportsFootnote 40 and Thematic ReportsFootnote 41.
All available information is comprehensive and complete and, in most cases, is available in both Spanish and English. In cases where it is available only in Spanish, it can be accessed the title, keywords and a short summary in English.
Further information available of interest are the questionnairesFootnote 42 to be completed by the states and civil society to develop an approach to various issues treated or processed by the Commission interest, as part of its ongoing monitoring efforts. The questionnaires are available in the four official languages of the system: Spanish, English, French and Portuguese and often addresses the same topics then published as thematic reports or reports on specific situations in countries.
B. THE INTER AMERICAN COURT OF HUMAN RIGHTS
The Inter-American Court of Human Rights is an autonomous judicial body whose rulings have binding character for those signatories' countries of the American Convention.
The Court has both contentious and advisory functions being that it hears and rules on the specific cases of human rights violations referred by the Commission or, since 2009 by a member State (art. 36 of the American Convention); and also it issues opinions on matters of legal interpretation of the American Convention brought to its attention by other OAS bodies or member states.
The Inter- American Court cannot recognize individual complaints directly. The contentious case or complaint must first go through the Commission and it will decide whether to submit the case to the Court. Once this process has concluded in the Commission and followed by a process of judicial character in the Court, the Court shall determine whether or not has been violated a right or freedom recognized by the Convention.
Proceedings before the Inter-American CourtFootnote 43
1. Submitting the case to the Court by the Inter-American Commission
– The Report is presented according to the art. 35 of the American Convention
– The case will be notified to the Presidency and Judges, Respondent State, Alleged Victim
2. Submitting the case to the Court by a State
– Since 2009 a State can report a case (art. 36 of the American Convention)
– The case will be notified to the Presidency and Judges, the Commission, Respondent State, Alleged Victim.
3. After acceptance, the alleged victim has 60 days to present the facts, proof, witnesses and the claims.
4. The state accused has 60 days to respond, indicating possible exceptions to be resolved in the final judgment of the Court.
5. Opening of the oral procedure and presentation of the final list of respondents.
It may be submitted for objections to witnesses and experts. The Court will decide whether or not accept these objections.
6. The hearing begins and the foundations of the report are presented.
7. After the hearings occur the allegations
8. The Commission will present its final observations
9. The judges will ask questions to the State, the victims or the Commission
10. The Court will rule on its final judgment
Legal tools for research in the Inter American Court of Human Rights
As part of accompaniment carried forward by the Inter-American Court of Human rights in the transformation of the social, political and institutional realities of the people of the region, its Website is intended as a documentary and practical source for both the academic research and the activism in the matter of Human Rights. Since 1979, the Court has decided more than 200 cases, delivered almost 300 judgments, issued more than 20 advisory opinions, and provided immediate protection to individuals and groups by means of the provisional measures it has ordered.
The website of the Court, as the Commission's, is available both in English and Spanish. However, the English version of the website of the Inter-American Court provides less information than the Spanish version and its information is organized differently according with the chosen language.
There is a noteworthy interactive mapFootnote 44 with the information about all the countries and its situation regarding the American Convention, and the recognition of the Court's jurisdiction. It also offers the jurisprudence by country in PDF format, MS word document, and a summary (technical data of all available cases) in different languages (English, Spanish, French and Portuguese). The list of jurisprudence for each country allows searching filtering within the results and also adds the possibility to include opinions and abstracts.
Recently, the Court added a human rights juridical finder or Buscador Jurídico de Derechos Humanos Footnote 45, available only in Spanish. This virtual space contains the contentious jurisprudence of the Inter-American Court of Human Rights, analyzed and systematized from the rights enshrined in the first 30 articles of the American Convention. Additionally, it can be found the main concepts issued by the Court on reparations, in accordance with the provisions of Article 63.1 of the American Convention. It also added (with the participation of Mexico Office of the United Nations Human Rights Council), different interpretations made by the committees of the United Nations on Human Rights, analyzed and systematized from the normative content of the main international treaties of the Universal System.
This section also offers some of the Spanish version of the main jurisprudence related to human rights from the Supreme Court of Justice of the Nation of Mexico, the Judiciary of the Republic of Peru and the Constitutional Court of the Republic of Colombia.
The Secretariat of the Inter-American Court of Human Rights offers multiple documents with their systematized decisions on a specific topic. The latest documents are always available on the home page (unfortunately, as the previous cases, the document is only available in Spanish). Such is the case of systematization of decisions on provisional measures issued by the Inter-American Court of Human RightsFootnote 46. Although the same information can be retrieved one by one through the Court's search engine, this type of material is of great interest for researchers, and all decisions issued by the Court in this matter are grouped into one document.
The Website offers an Annual ReportFootnote 47 (and the historical Annual Reports) which covers the jurisdictional work and the different activities carried out by the Inter-American Court to reach out to the people and institutions under its jurisdiction each year. The report summarises the difficult journey towards the effective defense and promotion of human rights that the Inter-American Court has endeavored to move gradually closer to the realities of each of the peoples of the Americas.
In the matter of Jurisprudence, and taking into account the vast case law possessed by the Court, in which it has addressed the most important issues and the most innovative developments in human rights with regard to each of the 20 States under its jurisdiction, the website provides a Jurisprudence FinderFootnote 48 useful to recover judgments and decisions of the Tribunal, download its versions in full text and redirect to files, fact sheets and summaries of the cases. The search can be made by type of decision, country, year and language, among others.
In addition, various sources of information, databases and documents are available to be browsed and downloaded. Such is the case of the Library of the CourtFootnote 49, with access to books, bulletins and other materials all downloadable, and with the possibility of being reused only by recognizing the authorship of the court.
Also, the Instruments for the Promotion on Human RightsFootnote 50, present the instruments of the Inter-American System, the European System, the African System and the Universal System of Human Rights. All grouped by the instruments of the system, for the promotion and protection of human rights, about the prevention of discrimination, women's rights, children, indigenous people, people with disabilities, sexual orientation and gender identity, about justice administration, labor, torture and disappearance, nationality, asylum, refuge and internally displaced persons and use of the force in armed conflicts among others.
Finally, it provides news and press releasesFootnote 51 (only in Spanish) with administrative information and its regular sessions. The multimedia galleryFootnote 52 (also available only in Spanish) offers an ensemble of legal and multimedia resources, providing pictures, audios and videos of the hearings within the ordinary sessions of the Court. The hearings are offered in the original language (not necessarily Spanish) and they do not provide translation or subtitles.
Documents of the OAS: The Thematic Reports.Footnote 53
The OAS in their documents offers a variety of Thematic Reports in order to address easily the variety of topics addressed by both the Commission and the Inter-American Court.
1. Women
Both the IACHR and the Court have pronounced in the topic of rights of women in the continent. The issues addressed have ranged in the general status of womenFootnote 54, the right to be free from violence and discrimination (the particular situation of the rights of women in Ciudad Juárez, MexicoFootnote 55 and in HaitiFootnote 56), violence and discrimination against women in armed conflict (particularly the situation in ColombiaFootnote 57), access to justice for women victims of violenceFootnote 58, particularly for victims of sexual violence in MesoamericaFootnote 59 and access to health and education for such womenFootnote 60, the right of equality in the family, labor and political spheres (particularly the situation experienced by women in ChileFootnote 61), maternal health services (from a human rights perspective)Footnote 62, work education and resources for women (seeking for equality through the guaranteeing of social and cultural rights)Footnote 63, women's political participationFootnote 64, access to information on reproductive healthFootnote 65 and legal standards related to gender equality and women's rights in the continentFootnote 66.
2. Children and Family rights
Although this subject has been addressed also in the subject of women's rights (maternal care, access to information of reproductive rights, etc.) or in the migrant workers and their families; the interest of the system in the topic relies principally in the rights of the child in generalFootnote 67, the right of boys and girls to a family, alternative care and end of institutionalization in the AmericasFootnote 68, the juvenile justice in the regionFootnote 69 and corporal punishment and human rights of children and adolescentsFootnote 70.
3. Migrants
In the matter of migrants, the system has developed two main perspectives. First, there is the topic concerning the situation of migrant workers and their families in the regionFootnote 71. And second, the immigration in the United States (particularly the situation of the detention and due process)Footnote 72 and the migration in the context of human mobility in MexicoFootnote 73.
4. The right to the truth
Although the importance of the topic in the continent due the processes for the memory the truth and justice after the multiple dictatorships in the region, the Inter-American system only has addressed this issue recently. In their report, they define the legal framework for the right to the truth in the Inter-American human rights system and the national experiences and obligations to the States emanating from the right to the truthFootnote 74.
5. Indigenous people
In a continent with the largest percentage of indigenous people, the system has addressed the topic multiples times. Its approach has been related to the general human rights situation of the indigenous people in the AmericasFootnote 75, the voluntary isolation of the communitiesFootnote 76, the right to their ancestral lands and natural resourcesFootnote 77, and the situation of captive communities as contemporary form of slavery (particularly the situation of the Guarani indigenous people in the Bolivian Chaco)Footnote 78.
6. Detention and deprivation of liberty and Justice operators
Human rights of persons deprived of liberty in the regionFootnote 79, the pretrial detention and the situation of the human right defendersFootnote 80. Also the system addresses the path between the restriction and abolition of the death penalty in the AmericasFootnote 81 and the guarantees for the independence of justice operatorsFootnote 82.
7. Xenophobia and racism
While the issue has been addressed by the thematic documents on indigenous people and migrants, the special reports on racism refer in particular to the situation of African descent in the region in generalFootnote 83, but also their situation in the countries like the report on the racial discrimination in the Republic of ColombiaFootnote 84.
8. Freedom of expression
This topic is addressed every year with a special report on the matter. But also the system offers the hemispheric agenda for the Defense of freedom of expressionFootnote 85, the legal framework regarding the right to access the informationFootnote 86 understood as fundamental part of the right to information. Also, the documents offer the standards for free and inclusive broadcastingFootnote 87 and different materials for the basic knowledge on access to informationFootnote 88. Finally, the system has addressed a special study on the investigations into the murder of journalists related to their work in journalismFootnote 89.
9. Social, economic and cultural rights
Economic, social and cultural rights have been recognized by the Inter-American system both declarative and conventional instruments, and established some protections under the system of casesFootnote 90 and periodical reportsFootnote 91
