International Human Rights by Siomara Umaña: Basic Concepts

Introduction

“The states of the American continents have created a regional institution, the Organization of American States (OAS), which includes several structures for protecting human rights. The Charter of the Organization of American States focuses on several areas promoting human rights: democracy, economic rights, the right to education, and equality. The Charter also establishes two main institutions designed specifically for human rights protection and promotion: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. It protects rights via the creation of substantive norms and maintains these standards through the petition process.”

Human Rights Bodies of the Organization of American States

“The two main institutions for the protection and promotion of human rights throughout the American hemisphere are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.”

Basic Concepts

States

• When you see "Member State," "State Parties, "The State failed in its obligation," etc. please bear in mind that “State” is referring to a country. For example, the U.S is a Member State of the OAS Charter.  (U.S=Country=State)

Member States vs. State Parties

• Member States are those states that have ratified the OAS Charter, and belong to the OAS.
• State Parties are those States that have ratified a particular treaty. Thus,  the States are only subject to those treaties they have ratified.

Obligations of States with International Human Rights

• RESPECT
• negative obligation: can not interfere with the enjoyment of human rights. Eg: no discrimination, no torture
• PROTECT
• positive obligation: take all measures necessary to prevent human rights violations against individuals or groups
• GUARANTEE 
  
• state must undertake affirmative measures to facilitate the basic enjoyment of human rights

Main Human Rights instrument for the Region

• American Declaration of the Rights and Duties of Man
• Any Member State of the OAS can be hauled in front of the Commission under the American Declaration.
• American Convention on Human Rights
• Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”
• Established the Inter American Court of Human Rights
• The Court has jurisdiction over a Member State of the OAS if
• They must have signed and ratified the American Convention on Human Rights, and
• Must have accepted the Court’s optional jurisdiction by depositing the instrument.
• Tip: Although, the U.S has signed the American Convention it has not accepted nor deposited the instrument accepting the Court’s Jurisdiction, thus the U.S may not be hauled into the Inter-American Court of Human Rights.
• Protocol to the American Convention on Human Rights to Abolish the Death Penalty
• Inter-American Convention to Prevent and Punish Torture
• Inter-American Convention on Forced Disappearance of Persons
• Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belem do Para”
• Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities

*Note: States have the option of indicating reservations on items central to a particular treaty.

*Note: Derogation: full suspension of human rights, may occur only in extreme circumstances (ex: during a declared state of emergency, where there is a full suspension of the "freedom of speech")

Additionally, the following instruments guide the Court and Commission’s interpretation of the above conventions:

• Declaration of Principles on Freedom of Expression
• Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas
• Inter-American Democratic Charter

Inter-American Commission on Human Rights: is a quasi-judical autonomous body.

• Precautionary Measures
• The mechanism for precautionary measures is established in Article 25 of the Rules of Procedure of the IACHR. The Rules of Procedure establish that, in serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case, as well as to persons under the jurisdiction of the State concerned, independently of any pending petition or case. The measures may be of a collective nature to prevent irreparable harm to persons due to their association with an organization, a group, or a community with identified or identifiable members.
• Decision on the Merits
• The Commission shall deliberate on the merits of the case, to which end it shall prepare a report in which it will examine the arguments, the evidence presented by the parties, and the information obtained during hearings and on-site observations.  In addition, the Commission may take into account other information that is a matter of public knowledge.

Inter-American Court of Human Rights: is the judical autonomous body of the OAS that issue binding decisions. 

• Provisional Measures
• Provisional measures are an instrument used by the Inter-American Court of Human Rights. Their purpose is to prevent irreparable harm to the rights and freedoms ensured under the American Convention on Human Rights of persons, who are in a situation of extreme gravity and urgency. The measures, ordered ex officio or at the request of a party, result in protection offered by the respondent State to alleged victims. Those can include family members of alleged victims, witnesses, journalists, political candidates, human rights defenders, members of indigenous communities, prisoners who live in deplorable conditions, the seriously ill or those on hunger strikes, officials of the justice system, aliens under orders of deportation or extradition and those sentenced to capital punishment. This does not in any way result in prejudging the merits of the matter before the Inter-American Court.
• Contentious Opinions
• Judicial decisions in contentious cases are said to be “hard [law]” because states have given the court jurisdiction to issue binding opinions. José E. Alvarez, The New Dispute Settlers: (Half) Truths and Consequences, 38 TEX. INT’L L.J. 405, 427(2003)
• Advisory Opinions
• This is often reffered to as "soft law" and although the advisory opinion is not binding like a Court’s judgment in a contentious case, “it does have undeniable legal and moral effects on both national and international law." Jo M. Pasqualucci, Advisory Practice of the Inter-American Court of Human Rights: Contributing to the Evolution of International Human Rights Law, 38 STAN. J. INT’L L. 241, 246 (2002)

• Was established in 1959, and they are headquartered in Washington, D.C.
•  It is composed of 7 commissioners
• The commissioners are nominated by their governments
• Quasi-judicial
• They cannot make binding decisions, but they may try to resolve conflict.
• Purpose is to protect and promote human rights in the region.
• Main Functions include:
• Receives and addresses individual petitions (cases)
• In loco visits
• Commissioners can go to Member States and actually investigate the situation on the ground.
• Provide hearings and issue reports on relevant topics:
• Thematic hearings on specific issues, which permits the harmed party,
• To educate the Commission
• Confront the state on their policy
• Pressure the state to make proactive changes
•  Issue Country Reports
•  Provides observations from country visits.
•  Provides Country conditions, situation etc.
• Issue Precautionary Measures
•  These act as preventative preliminary injunctions while the case is still pending
• Reviews the state reports for compliance

• Anybody can be a petitioner, but only identifiable individuals can be victims.
•  Situation must have occurred in an OAS Member State.
•  Has to be a violation of a recognized right.

1. Violation by a Member State of the OAS for violating a human right under any of the Inter-American Instruments applicable to that State.
2. Petitioner must have exhausted all domestic remedies available in the state where the violation occurred, and must have done so for every violation the petitioner is alleging.[1]
• Exceptions to the exhaustion rule:[2]
• Domestic legislation of the state concerned does not afford due process of law (no effective remedy)
• Party alleging the violation of his rights has been denied access to the remedies (can’t access the process…maybe you were attacked and the police won’t investigate so you don’t have access to process)
• There has been an unwarranted delay in rendering a final judgment (this will be a fact specific argument to make)
3. The petitioner must file within 6 months after exhaustion of all the domestic remedies.[3]
4. No forum shopping.
• The petition must not be based on the same facts of legal arguments as a petition pending before another body.[4]

Recap: Jurisdiction, Exhaustion of Domestic Remedies, 6 month Statue, No Forum Shopping.

• The Inter-American Commission on Human Rights informs the Member State of the petition received.
• The Commission facilitates a friendly settlement, and if no settlement is achieved, then
•  It issues the Article 50 Report, known as the report on the merits, with recommendations.
• If States does not comply, then the Commission publishes the report and sends it for review to the Inter-American Court of Human Rights.

Tip: Remember only States that have ratified The American Convention and have formally accepted the Court’s jurisdiction, will be able to be hauled into the Inter-American Court of Human Rights. 

• Is an autonomous judicial institution based in the city of San José, Costa Rica.
• It was established on May 22,1979.
• As stipulated by Chapter VIII of the Convention, the Court consists of seven judges of the highest moral authority from the Organization's member states.
• These judges are elected to six-year terms by the OAS General Assembly;
• each judge may be reelected for an additional six-year term.

Adjudicate contentious decision:

• Purpose: establishing the factual truth, and deciding whether those facts constitute a violation of the Inter-American Treaties, particularly the convention
• the court is the authoritative interpreter
• Reparations: court issues various types of reparation
• Competent to: establish the international responsibility of a State for violations of the American Convention or other Human Right treaties.
• Issue advisory opinions
• Issue provisional measures under the Am Convention (different from the precautionary measures of the Commission)
• Tip: The Inter-American Court of Human Right is NOT competent to:
• investigate Human Right violations between individual parties (can only assess States)
• The Court follows the rules of procedure produced in a General Assembly report
• The Court may suupervise the compliance by the State with its judgments.

• The IACHR refers the case to the Court with a letter and the published Article 50 Report
• Court requests a round of briefing from each party
• Court will then hold a hearing;
• includes declarations by witnesses, expert witnesses, and
• final arguments
• The Court could have a second written round, if judges have asked for additional briefing on certain issues 
• Then a judgment on the merits is issued;
•  judgments are legally binding under the Convention
• plus states have voluntarily subjected themselves, sacrificing some sovereignty.

• Restitutio in integrum: restoring the person to the position they would have been in had the violation not occurred (ex: medical or psych services)
• Monetary compensation
• Material damages: any costs that the violation by the State caused the petitioner to incur (ex: medical bills)
• Moral damagess: goes beyond to punish for the suffering that the victim or family has endured
• Measures of satisfaction: the judgment itself is a form of reparation because it forces the truth to be told (ex: The Court might order the State to publish the judgment in the national newspaper)
• Guarantees of non-repetition: to ensure that other people are not affected by the same violation (ex:The court might order for Human Right trainings to be given to the police, or to actually make statutory changes in the law)
• Basic costs and expenses; The party who loses bears the costs and expenses
• Tip: It is essential for the harmed victim to keep records of any costs/expenses incurred as part of filing for the petition forward, because it gets taken into account by the Court. 

• The presumed victims
• The Commission
• The State

• Court itself can require states to submit written updates;
• Court can inquire as to how the state intends to implement changes
• Court can issue orders on compliance
• If there’s an absolute non-compliance, the Court can inform the OAS general assembly, which then puts political pressure on the state.