A look at Regional Human Rights Regimes including that of the Americas (Including the Organisation of the American States (OAS) and the Inter-American Court and Commission) and Africa (Including the Organisation of African Unity (OAU) and the African Commission and Court on Human and People's Right...
Chapter 19 International Human Rights (Shah, 2nd edition) – The Americas
Human Rights protection in the Americas is governed by the Organisation of American States (OAS),
an international organisation comprise of the independent states of the Western hemisphere
Main documents – The American Declaration of the Rights and Duties of Man (The American
Declaration) and the American Convention on Human Rights (ACHR). Each has its own enforcement
body which deals with individual complaints.
Historical Overview
OAS formally created in 1948 when the OAS Charter adopted. A treaty that sets out legal framework
of OAS and is binding on all member states. Purposes of OAS include strengthening peace and
security, eradicating poverty etc
OAS Charter also affirms the ideal that fundamental rights are for every human being without
distinction as to race, nationality, creed or sex (Art 3(1) OAS Charter)
1948 conference also adopted the American Declaration. Adopted 6 months before the Universal
Declaration of Human Rights. Although intended to be a legally binding treaty now just more of a
source of legal obligations for OAS member states
The American Declaration sets out civil and political rights as well as economic, social and cultural
rights
1967 protocol of Buenos Aires amended OAS Charter to include Inter-American Commission as a
principal organ of the OAS – function to ‘promote the observance and protection of human rights and
to serve as a consultative organ of the organisation in these matters (OAS Charter Article 106)
OAS has affirmed its commitment to democracy as the only acceptable type of political governance for
member states
American Convention on Human Rights
23 out of 35 OAS members are states parties to the ACHR. Those not ratifying include Canada and the
USA.
Under ACHR states undertake to respect and ensure the human rights specified in the Convention to
all persons who are subject to their jurisdiction (ACHR Art 1(1))
Jurisdiction not limited to physical territory – includes all areas which the state has effective control
(eg for the USA, also inmates held at Guantanamo bay in Cuba would be within the jurisdiction of the
USA in terms of the rights in the treaty if it were to be ratified)
States also agree to give legal effect to the rights of the treaty at a domestic level
Two organs to protect and enforce the rights established in the Convention: The Inter-American
Commission and the Inter-American Court. Both are empowered to enforce international human rights
law in the Americas. Claim can only be made to the Court and Commission when the domestic system
has been either exhausted or ineffective.
ACHR permits parties unrelated to victims of abuse to file human rights petitions to reflect the fact
that many of those who need the most protection are also those who are the poorest and least
intelligent who will need assistance in bringing a claim.
Any person or NGO legally recognised in an OAS member state may file a petition.
Inter-American Commission on Human Rights
Organ to protect rights under the ACHR and principle organ of the OAS under the OAS Charter
Structure
Composed of 7 commissioner who are elected by a secret ballot of all OAS Member states and the
OAS General Assembly
Elected to serve 4 years terms then can be re-elected
, Commissioner do not serve their states but instead act independently. They must be nationals of an
OAS member state and no two commissioners can be nationals of the same state. They must be
persons of high moral character and recognized as being competent in the area of Human Rights
Located at the OAS headquarters in Washington D.C
Individual Complaints Procedures
Complaints filed and processed by the Inter-American Commission. Commission must then complete
its proceedings before case can be referred to the Inter-American Court
Average time of compliant being made to the Commission to it being referred to the Court is over 8
years
Requirement of admissibility for complaints. Must state facts leading to violation of established right
and must show national remedies exhausted.
Commission must be flexible and should require more information when claim not admissible because
often filed without the help of a solicitor
If deemed admissible, hearings and investigations may be needed to compile evidence (usually with
the permission of the respondent state)
Commission will aim to bring about a friendly settlement between the state and part involved that is
beneficial to both. Victims will often receive reparations. This can help to free up the work of the
Commission
In most cases though a friendly settlement is not reached. Commission will then consider case further
and will recommend measures that the state should take to remedy a violation if it is present. If the
states does not follow these recommendations and it has accepted the jurisdiction of the Inter-
American Court then automatic referral of the case to the court will take place unless there is a
reasoned decision by an absolute majority of the member of the commission to the contrary (Inter-
American Commission Rules of Procedure, Art 44(1)).
ACHR authorises state to state complaints and so state parties to the Convention can accept the
jurisdiction of the Commission to receive and examine the case
Other Roles of the Commission
Studies and reports on human rights in a broader context
May prepare a country study where there are alarming reports about the human rights situation in a
member state
Can also conduct thematic studies concerning violations of certain types of rights throughout the
whole hemisphere
Inter-American Court of Human Rights
Sole judicial organ of the OAS. Created in 1979 following entry into force of the ACHR. Allows the
court to adjudicate cases, issue advisory opinions and order states to take provisional measures to
protect persons who are in grave and imminent danger
State subject to jurisdiction of the court automatically if it has ratified the American Convention of
Human Rights (ACHR)
Structure and Composition
Made up of 7 judges who are elected to a six-year term by a vote of the states parties to the ACHR.
Judges may be re-elected for 1 additional term, and they continue to hear cases they began to here
before their terms expired
Elected by secret ballot of absolute majority of member states parties to the ACHR.
Individuals who are nominated can be from any OAS member states, not just states parties to the
ACHR. No 2 judges can be of the same state though
Judges are to be chosen from jurists of the highest moral authority who are recognised for their
competence in human rights law and who possess the qualifications to be a judge in the nomination
state or the state of the nominee’s nationality
Court sits on a part time basis and decides cases in plenary session. Has four regular sessions and in a
year and can also hold special sessions
Located in San Jose, Costa Rica but can convene in another OAS member state
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