Inter-American system of human rights

Core treaties

1. American convention on HR (Pact of san José, Costa Rica 1969)

a) Additional protocol to the American convention on economic social and cultural rights (protocol
of san Salvador 1988)
b) Protocol to the American convention on HR to abolish death penalty 1990
2. Inter-American convention to prevent and punish torture 1985
3. IAC on the prevention, punishment and eradication of violence against women 1994
4. IAC on forced disappearance of the person 1994
5. IAC on the elimination of all form of discrimination against person with disability

American convention on HR (Pact of san José, Costa Rica 1969)

The American Convention on Human Rights, 1969, and its Protocols of 1988 and 1990

The rights recognized

As to the civil and political rights guaranteed by the Convention, they comprise the following:

1. The right to juridical personality – art. 3;

2. The right to life, including careful regulation of the death penalty from an abolitionist perspective
– art. 4;
3. The right to humane treatment, including freedom from torture and cruel, inhuman or degrading
treatment or punishment – art. 5;
4. Freedom from slavery, servitude, forced and compulsory labour – art. 6;
5. The right to personal liberty and security, freedom from arbitrary arrest or detention – art. 7;
6. The right to a fair trial – art. 8;
7. the right to freedom from ex post facto laws – art. 9;
8. the right to compensation in the event of a miscarriage of justice – art. 10;
9. the right to privacy – art. 11;
10. the right to freedom of conscience and religion – art. 12;
11. the right to freedom of thought and expression – art. 13;
12. the right of reply in case of dissemination of inaccurate and offensive statements – art. 14;
13. the right to peaceful assembly – art. 15;
14. the right to freedom of association – art. 16;
15. the right to marry freely and to found a family – art. 17;
16. the right to a name – art. 18;
17. the rights of the child – art. 19;
18. the right to a nationality – art. 20;
19. the right to property – art. 21;
20. the right to freedom of movement and residence – art. 22;
21. the right to participate in government – art. 23;
 22. the right to equality before the law and equal protection of the law – art. 24;
23. the right to judicial protection – art. 25

The Additional Protocol recognizes the following economic, social and cultural rights:

1. the principle of non-discrimination in the exercise of the rights set forth in the Protocol art. 3;
2. the right to work – art. 6;
3. the right to just, equitable and satisfactory conditions of work – art. 7;
4. trade union rights – art. 8;
5. the right to social security – art. 9;
6. the right to health – art. 10;
7. the right to a healthy environment – art. 11;
8. the right to food – art. 12;
9. the right to education – art. 13;
10. the right to the benefits of culture – art. 14;
11. the right to the formation and protection of families – art. 15;
12. the rights of children – art. 16;
13. the right of the elderly to protection – art. 17;
14. the right of the handicapped to protection – art. 18.

The implementation mechanism

The inter-American system for the protection of human rights comprises, in the first instance, the Inter-
American Commission on Human Rights and, in the second instance, the Inter-American Court of Human
Rights for those States parties having accepted its jurisdiction.

Inter-American Commission on Human Rights:

The Inter-American Commission is composed of seven members elected in their personal capacity (arts.
34 and 36(1))

main functions are to “promote respect for and defense of human rights” by, inter alia,

i. developing an awareness of human rights in the America

ii. making recommendations to Governments of the member States, when it considers such action
advisable;
iii. preparing such studies and reports as it considers advisable in the performance of its duties; and,
iv. taking action on petitions and other communications pursuant to its authority under the
Convention (art. 41(a), (b), (c) and (f)).

The right of individual petition to the Commission is mandatory under the Convention, according to
which “any person or group of persons, or any non-governmental entity legally recognized in one or more
member States of the Organization [of American States] may lodge petitions ... containing denunciations
or complaints of violation of this Convention by a State Party” (art. 44).
the other hand, inter-State complaints require a specific declaration whereby the State concerned
recognizes the competence of the Commission to examine communications brought against another State
party having made the same declaration (art. 45(1) and (2)).

requirements for an individual petition or inter-State communication submitted to the Commission,

the exhaustion of domestic remedies rule (art. 46(1)(a)).

Moreover, the petition or communication must be lodged within six months from the date on which the
alleged victim was notified of the final judgement, and the subject of the complaint must not be pending
in another international proceeding for settlement (art. 46(1)(b) and (c)).

Individual petitions must of course also contain information such as the name, address and signature of
the alleged victim or his or her legal representative (art. 46(1)(d)).

The exhaustion of domestic remedies rule is not, however, applicable

a. where the domestic legislation “does not afford due process of law for the protection of
the right or rights that have allegedly been violated”;
b. where the alleged victim has been denied access to domestic remedies;
c. where there has been “unwarranted delay in rendering a final judgment” (art. 46(2)).

If a petition or communication does not fulfil these conditions or if, for instance, it is “manifestly
groundless”, the Commission declares the petition or communication concerned inadmissible (art. 47).

Alternatively, it will “place itself at the disposal of the parties concerned with a view to reaching a
friendly settlement of the matter on the basis of respect for the human rights recognized in this
Convention” (art. 48(1)(f)).

If a settlement is not reached, the Commission will “draw up a report setting forth the facts and stating its
conclusions”, a report that will be submitted to the States parties, “which shall not be at liberty to publish
it” (art. 50(1) and (2)).

If, after a prescribed period, the matter has not been settled or submitted to the Court, the Commission
may “set forth its opinion and conclusions concerning the question submitted for its consideration” and
may in cases where the State concerned fails to take “adequate measures”, ultimately decide to publish its
report (art. 51).

With regard to those OAS Member States which have not yet ratified the American Convention on
Human Rights, the Commission is competent to receive petitions alleging violations of the American
Declaration on the Rights and Duties of Man.

Another interesting aspect of the Commission’s powers is its competence to request advisory opinions
from the Inter-American Court of Human Rights (art. 64). The important Advisory Opinion on Habeas
Corpus in Emergency Situations was thus given by the Court following a request by the Commission.

Inter-American Court of Human Rights:

The compulsory jurisdiction of the Court had been accepted by 21 States.

The Court consists of seven judges elected in their individual capacity (art. 52).

It has its Secretariat in San José, Costa Rica.

Before the Court can hear a case, the procedure before the Commission must be completed (art. 61(2)).

“In cases of extreme gravity and urgency”, the Court “shall adopt such provisional measures as it deems
pertinent”, (art. 63(2)).

The Court’s judgments are final and the States parties undertake to comply with the terms thereof “in any
case to which they are parties” (arts. 67 and 68(1)).

The enforcement mechanism under the Additional Protocol in the Area of Economic, Social and Cultural
Rights differs from the procedures under the Convention in that the States parties only undertake “to
submit periodic reports on the progressive measures they have taken to ensure due respect for the rights
set forth” therein (art. 19(1) of the Protocol).

African Human Rights Treaties

 The African Charter on Human and Peoples’ Rights, 1981
 The African Charter on the Rights and Welfare of the Child, 1990

The African Charter on Human and Peoples’ Rights, 1981

The African Charter on Human and Peoples’ Rights was adopted in 1981 and opened a new chapter in
the field of human rights in Africa.1 It entered into force on 21 October 1986, and it had 53 States parties
in April 2002.

The individual and collective rights recognized

The African Charter on Human and Peoples’ Rights recognizes the following civil, political, economic,
social and cultural rights of individual human beings, in particular:

 the right to freedom from discrimination on any grounds in the enjoyment of the rights and
freedoms guaranteed in the Charter – art. 2;
 the right to equality before the law and to equal protection of the law – art. 3;
 the right to respect for one’s life and personal integrity – art. 4;
 the right to respect for one’s inherent dignity as a human being, including freedom from slavery,
the slave trade, torture, cruel, inhuman or degrading punishment and treatment – art. 5;
 the right to liberty and to the security of one’s person; freedom from arbitrary arrest or detention
– art. 6;
 the right to have one’s cause heard, and “the right to an appeal to competent national organs
against acts of violating” one’s human rights; the right to be presumed innocent until proved
guilty by a competent court or tribunal; the right to defence; and the right to be tried within a
reasonable time by an impartial tribunal;
  freedom from ex post facto laws – art. 7;
 freedom of conscience, the profession and free practice of religion – art. 8;
 the right to receive information and the right to express and disseminate one’s opinions “within
the law art. 9;
 the right to freedom of association (art. 10) and the right to assemble freely with others – art. 11
 the right to freedom of movement and residence within the borders of a State; the right to leave
any country including one’s own and to return to one’s country; the right to asylum in case of
persecution; prohibition of mass expulsions – art. 12;
 the right to participate freely in the government of one’s country, either directly or through freely
chosen representatives; the right to equal access to the public service of one’s country and to
access to public property and services – art. 13;
 the right to property – art. 14;
 the right to work and the right to equal pay for equal work – art. 15;
 the right to enjoy the best attainable state of physical and mental health – art. 16;
 the right to education, and freely to take part in the cultural life of one’s country – art. 17;
 the right of the family, the aged and the disabled to special measures of protection –art. 18.

Next, the African Charter recognizes the following rights of peoples, namely:

 the right of peoples to equality – art. 19;

 the right to existence of all peoples, including the right to self-determination; the right of all
peoples to assistance in their liberation struggle against foreign domination, “be it political,
economic or cultural” – art. 20;
 the right of all peoples freely to dispose of their wealth and natural resources – art. 21;
 the right of all peoples to their economic, social and cultural development – art. 22;
 the right of all peoples to national and international peace and security – art. 23;
 the right of all peoples “to a general satisfactory environment favourable to their development” –
art. 24.

Without providing any details, article 27(1) deals with individual duties toward certain groups by
stipulating, in general terms only, that “every individual shall have duties towards his family and society,
the State and other legally recognized communities and the international community”.

Next, article 28 concerns the individual’s duty towards other individuals, providing that “every individual
shall have the duty to respect and consider his fellow beings without discrimination, and to maintain
relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance”.

Lastly, article 29 enumerates several other specific individual duties, such as the duties:

 to preserve the harmonious development of the family – art. 29(1);

 to serve one’s national community – art. 29(2);
 not to compromise the security of the State – art. 29(3);
 to preserve and strengthen the social and national solidarity – art. 29(4);
  to preserve and strengthen the national independence and territorial integrity of one’s country
– art. 29(5);
 to work to the best of one’s abilities and competence, and to pay taxes – art. 29(6);
 to preserve and strengthen positive African cultural values – art. 29(7);
 and, finally, the duty to contribute to the best of one’s abilities to the promotion and
achievement of African unity – art. 29(8).

The implementation mechanism

The African Commission on Human and Peoples’ Rights consists of eleven members serving in their
individual capacity (art. 31).

It has the twofold function,

 promoting human and peoples’ rights,

 protecting these rights (art. 30),

As to the function of promoting human and peoples’ rights, the Commission shall

 Firstly make recommendations to Governments”;

 Second, it shall “formulate and lay down principles and rules aimed at solving legal problems
relating to human and peoples’ rights”;
 Lastly, it shall cooperate with other African and international institutions concerned with the
promotion and protection of these rights (art. 45(1)).

With regard to the Commission’s function of ensuring “the protection of human and peoples’ rights

The Commission has competence to receive communications from States and other sources,

authorized to “interpret all the provisions of the ... Charter at the request of a State Party, an institution of
the OAU or an African Organization recognized by the OAU” (art. 45(3)).

inter-State communications:

if a State party “has good reasons to believe that another State Party to this Charter has violated the
provisions” thereof, “it may draw, by written communication, the attention of that State to the matter”
(art. 47).

The State to which the communication is addressed has three months from the receipt of the
communication to submit a written explanation. If the matter has not been “settled to the satisfaction of
the two States involved through bilateral negotiation or by any other peaceful procedure”, either State can
bring it to the attention of the Commission (art. 48).

Notwithstanding these provisions, a State party can refer the matter directly to the Commission (art. 49).
However, the Commission can only deal with the matter after all domestic remedies have been exhausted
in the case, “unless ... the procedure of achieving these remedies would be unduly prolonged” (art. 50).
The States concerned may be represented before the Commission and submit written and oral statements
(art. 51(2)).

The Commission shall prepare a report “stating the facts and its findings”, which shall be sent to the
States concerned and to the Assembly of Heads of State and Government (art. 52). In transmitting its
report, the Commission may make to the aforesaid Assembly “such recommendations as it deems useful”
(art. 53).

communications from sources other than those of States parties:

the Charter does not specify whether the Commission is competent to deal with individual complaints, as
such, but merely provides that, before each session of the Commission, its Secretary “shall make a list of
the communications other than those of States Parties ... and transmit them to the members of the
Commission, who shall indicate which communication should be considered by the Commission” (art.
55(1)).

However, certain criteria have to be fulfilled before the Commission can consider the case. Thus:

(1) the communication must indicate the author;

(2) it must be compatible both with the Charter of the OAU and with the African Charter on Human and
Peoples’ Rights;

(3) it must not be written “in disparaging or insulting language”;

(4) it must not be “based exclusively on news disseminated through the mass media”;

(5) it must be submitted only after all domestic remedies have been exhausted, “unless it is obvious that
this procedure is unduly prolonged”;

(6) it must be submitted “within a reasonable period from the time local remedies are exhausted”;

and, finally (7) the communications must not “deal with cases which have been settled by these States

Before a substantive consideration is made of a communication, it must be brought to the attention of the
State concerned (art. 57).

Lastly, the Charter provides a procedure for emergency cases which shall be submitted by the
Commission to the Chairman of the Assembly, “who may request an in-depth study” (art. 58(3)).

periodic reports: the States parties to the Charter also undertake to submit, every two years, “ a report on
the legislative or other measures taken with a view to giving effect to” the terms of the Charter (art. 62).
Although the Charter provides no explicit procedure for the examination of these periodic reports, the
African Commission on Human and Peoples’ Rights has proceeded to examine these reports in public
sessions.