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«Fostering Human Rights among European Policies Large-Scale FP7 Collaborative Project GA No. 320000 1 May 2013-30 April 2017 Report on the EU’s ...»

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(1) Composition and sessions The IACHR is composed of seven Commissioners who are elected by the OAS General Assembly (OAS GA) from a list of candidates proposed by the member states.40 They are elected for a period of four years and can be re-elected only once.41 From among them a Chairman, a First Vice-Chairman and a For detailed information on the IASHR see David J Harris and Stephen Livingstone (eds) The Inter-American

system of human rights (Clarendon 1998). For a historical overview see Robert K. Goldman, ‘History and Action:

The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights’ (2009) 31 Human Rights Quarterly 856.

On the difficult relationship between the IACHR and the IACtHR in the early stages see Cecilia Medina, ‘The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a Joint Venture’ (1990) 12 Human Rights Quarterly 439, 448 et seq.

Charter of the Organization of American States (adopted 30 April 1948, entered into force 13 December 1951, amended by the Protocol of Buenos Aires in 1967, by the Protocol of Cartagena de Indias in 1985, by the Protocol of Washington in 1992, and by the Protocol of Managua in 1993), www.oas.org/dil/treaties_ACharter_of_the_Organization_of_American_States.pdf.

For an overview of the institutional work, procedure and governing bodies of the IASHR, see Monika Mayrhofer, Carmela Chavez, Venkatachala Hegde, Magnus Killander, Joris Larik, Bright Nkrumah, Elizabeth Salmón, Kristine Yigen, ‘Report on the mapping study on relevant actors in human rights protection’, FRAME Deliverable 4.1, 31 January 2014, www.fp7-frame.eu/wp-content/materiale/reports/02-Deliverable-4.1.pdf.

OAS Charter art 2(1) and 3.

OAS Charter art 6.

FRAME Deliverable No. 5.6 Second Vice-Chairman are elected by absolute majority of the Commissioners.42 In addition, the IACHR is supported by a Secretariat under the direction of an Executive Secretary and two Assistant Executive-Secretaries.43 The Commission is divided into thematic and country rapporteurships (table 1).44 Each of the Commissioners is in charge of one or two thematic rapporteurships and a few country rapporteurships. The thematic rapporteurships relate to human rights defenders, the rights of children, the rights of women and the rights of lesbian, gay, bisexual, trans- and intersex (LGBTI) persons, Afro-descendants and the rights of Indigenous Peoples, the rights of migrants, economic, social and cultural rights, rights of persons deprived of liberty, and freedom of expression.45 Table 1: IACHR country and thematic rapporteurships

–  –  –

The IACHR holds ordinary sessions (two per year) and extraordinary sessions (as many as it may consider) in its institutional headquarters in Washington, D.C., or in an OAS member state.46 OAS Charter art 14(1).

OAS Charter art 21.

Rules of Procedure of the Inter-American Commission on Human Rights (adopted 28 October-13 November 2009, current version in force since 1 August 2013) (IACHR Rules of procedure) art 15.

For more detailed information on the individual rapporteurships see IACHR, ‘Thematic Rapporteurships and Units’, www.oas.org/en/iachr/mandate/rapporteurships.asp.

OAS, ‘Statute of the Inter-American Commission on Human Rights’ General Assembly Res AG/Res 447 (La Paz, October 1979) (IACHR Statute) art 16.

FRAME Deliverable No. 5.6 (2) Role and competences Art. 1(1) of the IACHR Statute provides that the Commission was created ‘to promote the observance and defense of human rights’. In order to fulfil this mandate the IACHR has a wide array of tools and methods at its disposal. They include, most importantly, the monitoring of OAS member states through general instruments comprising thematic reports, state reports and on-site observation. According to

Art. 18 IACHR Statute the IACHR has the following general competences:

–  –  –

These powers of the IACHR are general, since they are not connected to specific cases of human rights violations.

Another aspect of the mandate of the IACHR is the power to receive individual petitions or communications from states and to resolve them by issuing a final report with recommendations. In principle, the IACHR examines the petitions in the order they were submitted, however there are some exceptions. Art. 29 of the Rules of Procedure of the IACHR indicates that petitions may be expedited


a. the case is time-sensitive (e.g. if the alleged victim is an older person, a child or terminally ill, if the alleged victim could be subjected to the death penalty or if the petition refers to a precautionary or provisional measure);

b. the alleged victims are persons deprived of liberty;

c. the OAS member state formally expresses its willingness to enter into a friendly settlement process;

d. the issue has broader implications with potential relevance for multiple petitions, mainly if the decision could address either serious structural human rights deficiencies or could promote changes in legislation and state practice.48 After receiving a petition or communication, the IACHR must assess its competence and the

admissibility. The criteria to be met are:

a. Ratione personae: Any person, group of persons or NGOs legally recognized in one or more of the OAS member states are allowed to present petitions to the IACHR. The petition can be on their behalf or on behalf of third persons.49 Interstate communications can be presented by all states parties to the American Convention on Human Rights (ACHR) that have accepted the competence of the IACHR IACHR Statute art 18.

IACHR Rules of procedure art 29.

IACHR Rules of Procedure art 23.

FRAME Deliverable No. 5.6 to receive and examine such communications. The communication has to be presented against other states parties to the ACHR. If the state party in question has not accepted the competence of the IACHR, it may exercise its option under Art. 45(3) ACHR50 to recognize the competence of the IACHR only for the specific case of the communication.51 Finally, the IACHR can also initiate the processing of a petition motu proprio.52 b. Ratione materiae: The petition or communication presented to the IACHR has to concern a violation of a human right recognized in one of the following legal instruments: the American Declaration of the Rights and Duties of Man, the ACHR, the Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights (‘Protocol of San Salvador’), the ACHR Protocol to Abolish the Death Penalty, the InterAmerican Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (‘Convention of Belém do Pará’), in accordance with Art. 12 of the treaty,53 the IACHR Statute, and the IACHR Rules of Procedure.54 c. Ratione temporis: The IACHR is competent to analyze the petitions and communications against a state when the human rights violations alleged occurred after the entry into force in that state of the correspondent legal instrument.

Furthermore, the petition or communication must be presented within six months after the interested subject was notified of the decision that exhausted the domestic remedies.55 d. Ratione loci: Finally, to be admissible, the petition or communication must refer to a human rights violation that occurred in the jurisdiction of the denounced State.

e. No duplication of procedures: The IACHR will not consider a petition if the matter of the request is pending before another international governmental organization of which the petitioning state is a member, or if it substantially reproduces another American Convention on Human Rights (‘Pact of San Jose’, adopted 22 November 1969, entered into force 18 July 1978) OAS Treaty Series No 36 (ACHR) art 45: ‘1. Any State Party may, when it deposits its instrument of ratification of or adherence to this Convention, or at any later time, declare that it recognizes the competence of the Commission to receive and examine communications in which a State Party alleges that another State Party has committed a violation of a human right set forth in this Convention. 2. Communications presented by virtue of this article may be admitted and examined only if they are presented by a State Party that has made a declaration recognizing the aforementioned competence of the Commission. The Commission shall not admit any communication against a State Party that has not made such a declaration. 3. A declaration concerning recognition of competence may be made to be valid for an indefinite time, for a specified period, or for a specific case. 4. Declarations shall be deposited with the General Secretariat of the Organization of American States, which shall transmit copies thereof to the member states of that Organization’.

IACHR Rules of procedure art 50.

IACHR Rules of procedure art 24.

Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (‘Convention of Belém do Pará’, adopted 9 June 1994, entered into force 5 March 1995) art 12: ‘Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Inter-American Commission on Human Rights containing denunciations or complaints of violations of Article 7 of this Convention by a State Party, and the Commission shall consider such claims in accordance with the norms and procedures established by the American Convention on Human Rights and the Statutes and Regulations of the Inter-American Commission on Human Rights for lodging and considering petitions’.

IACHR Rules of procedure art 23.

For exceptions to the requirement of the exhaustion of domestic remedies, see IACHR Rules of procedure art 31.

FRAME Deliverable No. 5.6 petition pending or already examined and settled by the IACHR or by another international governmental organization of which the petitioning state is a member.56 It is important to note that, in relation to the ratione materiae criteria, the IACHR may also receive and process cases of violations of the American Declaration involving countries which are not parties to the ACHR.57 Regarding these states the IACHR has the competences provided for in Art. 18 and 20 IACHR Statute.58 It can receive individual petitions or interstate communications, which are resolved by applying the American Declaration of the Rights and Duties of Man. The applicable procedure is

provided for in Art. 51 and 52 of the IACHR’s Rules of Procedure:

The Commission shall receive and examine any petition that contains a denunciation of alleged violations of the human rights set forth in the American Declaration of the Rights and Duties of Man in relation to the Member States of the Organization that are not parties to the American Convention on Human Rights [...].59 Further, the IACHR Statute points out that the IACHR was created to promote the defense of human rights, which are understood as the rights set forth in the ACHR, in relation to its states parties, and the rights set forth in the American Declaration, in relation to OAS member states.60 In addition, the IACtHR held in Advisory Opinion OC-10/89 that the OAS member states have accepted that the American Declaration contains human rights obligation that must be fulfilled.61 In this sense, it is possible to conclude that (i) OAS member states are bound by the American Declaration and that (ii) the IACHR is competent to hear petitions and communications concerning violations of human rights contained in the American Declaration – a competence which is recognized in binding instruments. Although this possibility is not recognized in other human rights systems, e.g.

at the European or global level, it allows for more effective and comprehensive human rights protection in Latin America.62 The analysis of the admissibility must be done according to the procedure described in art 30 to 36 of the IACHR Rules of procedure.

This is the case for Antigua and Barbuda, Bahamas, Belize, Canada, Guyana, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and the United States of America. The United States signed the ACHR on 1 June 1977 but did not ratify it.

IACHR Statute art 20: ‘In relation to those member states of the Organization that are not parties to the American Convention on Human Rights, the Commission shall have the following powers, in addition to those designated in Article 18: a. to pay particular attention to the observance of the human rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man; b. to examine communications submitted to it and any other available information, to address the government of any member state not a Party to the Convention for information deemed pertinent by this Commission, and to make recommendations to it, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights; and, c. to verify, as a prior condition to the exercise of the powers granted under subparagraph b. above, whether the domestic legal procedures and remedies of each member state not a Party to the Convention have been duly applied and exhausted’.

IACHR Rules of procedure art 51.

IACHR Statute art 1.

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 OC-10/89, Inter-American Court of Human Rights Series A No 10 (14 July 1989) para 42.

Héctor Faúndez Ledesma, El Sistema Interamericano de Protección de los Derechos Humanos. Aspectos institucionales y procesales (3rd ed, Instituto Interamericano de Derechos Humanos 2004) 266.

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