THE REGIONAL INSTRUMENTS FOR THE PROTECTION AND PROMOTION OF HUMAN RIGHTS
Declaration of the Rights and Duties of Man
Adoption: May 2, 1948
The American Declaration is the first general international human rights instrument. Approximately eight months following its adoption, the United Nations adopted the Universal Declaration of Human Rights. The American Declaration establishes that "the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality." Accordingly, the States of the Americas recognize that when the state legislates in this area, it does not create or grant rights, but rather recognizes rights that exist independent of the formation of the State. Both the Commission and the Court have established that despite having been adopted as a declaration and not as a treaty, today the American Declaration constitutes a source of international obligations for the Member States of the OAS.
The American Convention
on Human Rights (“Pact of San José, Costa Rica”)
Adoption: November 22, 1969. Entry into force: July 18, 1978
The beginnings of the American Convention go back to the Inter-American Conference held in Mexico in 1945, which entrusted the Inter-American Juridical Committee with preparing a draft declaration. That idea was taken up anew at the Fifth Meeting of Ministers of Foreign Affairs that met in Santiago, Chile, in August 1959, in which it was decided to promote the drafting of a human rights convention. The original draft Convention was prepared by the Inter-American Council of Jurists, submitted to the Permanent Council of the OAS, and opened up for comments by the States and the Inter-American Commission. In 1967 the Commission submitted a new draft Convention. In order to analyze the various drafts, the OAS convened an Inter-American Specialized Conference on Human Rights, which met in San José, Costa Rica from November 7 to 22, 1969. The entry into force of the American Convention in 1978 enhanced the effectiveness of the Commission, established an Inter-American Court of Human Rights, and modified the legal nature of the instruments on which the institutional structure is based.
In its first part, the American Convention establishes States’ obligations and enunciates the human rights protected thereof. In its second part, the American Convention establishes the means of protection: the IACHR and the I/ACourtHR, which it declares to be organs competent "with respect to matters relating to the fulfillment of the commitments made by the States Parties to this Convention.” As of June 30 2010, 24 Member States of the OAS are parties to the American Convention.
Convention to Prevent and Punish Torture
Adoption: December 9, 1985. Entry into force: February 28, 1987
In 1985, in the context of the General Assembly where amendments to the Charter of the OAS were adopted in the Protocol of Cartagena de Indias, the Member States adopted and opened for signature the Inter-American Convention to Prevent and Punish Torture. This Convention includes a detailed definition of torture and of the liability for committing this crime. The States parties not only undertake to punish severely the perpetrators of torture, they also agree to adopt measures to prevent and punish any other cruel, inhuman, or degrading treatment within their respective jurisdictions. According to the terms of this treaty, persons accused of torture cannot elude the action of justice by fleeing to the territory of another State party.
The Additional Protocol
to the American Convention on Human Rights in the area of
Economic, Social and
Cultural Rights (Protocol of San Salvador)
Adoption: November 17, 1988. Entry into force: November 16, 1999
Article 77 of the American Convention provides for the adoption of protocols with a view to gradually including other rights and freedoms within its system of protection. The Protocol of San Salvador is the additional instrument to the American Convention specifically addressing economic, social and cultural rights. The text of the Protocol is based on a draft prepared by the IACHR.
On ratifying this Protocol, the States parties "undertake to adopt the necessary measures … to the extent allowed by their available resources, and taking into account their degree of development, for the purpose of achieving progressively and pursuant to their internal legislations, the full observance of the rights recognized in this Protocol.” Article 19 of this Protocol establishes the means of protection, including the possibility of filing individual petitions for alleged violations of Articles 8(a) and 13 regarding trade union rights and the right to education, respectively.
The Protocol to the
American Convention on Human Rights to Abolish the Death Penalty
Adoption: June 8, 1990. Entry into force: August 28, 1991
The concerted efforts to include the absolute abolition of the death penalty in the American Convention were not successful in the context of its adoption in 1969. The Protocol to the American Convention on Human Rights to Abolish the Death Penalty was approved at the 20th regular period of sessions of the OAS General Assembly. Once ratified by State parties to the American Convention, this Protocol will ensure the abolition of the death penalty throughout the hemisphere.
Convention on the Prevention, Punishment and Eradication of Violence
Women (“Convention of Belém do Pará”)
Adoption: June 9, 1994. Entry into force: March 5, 1995
The OAS General Assembly adopted this treaty at its 24th regular period of sessions in Belém do Pará, Brazil. This instrument defines in detail the forms of violence against women, including physical, sexual, and psychological violence, based on gender, whether in the public or private sphere, and establishes that all women have the right to a life free from violence, in addition to all the human rights enshrined by the regional and international instruments. Furthermore, the Belém do Pará Convention establishes that the right of women to be free from violence includes, among others, their right to be free from all forms of discrimination. The State parties to this instrument agree to condemn all forms of violence against women and to investigate, prosecute, and punish such acts of violence with due diligence; accordingly they must both adopt policies and take specific measures aimed at preventing, punishing, and eradicating such violence against women.
Convention on Forced Disappearance of Persons
Adoption: June 9, 1994. Entry into force: March 28, 1996
During its 24th regular session held in Belém do Pará, Brazil, the General Assembly of the OAS approved this convention. This instrument is the first internationally to refer specifically to this complex form of human rights violation. In this treaty the States parties undertake not only to refrain from practicing, allowing, or tolerating forced disappearance, but also to punish the perpetrators, accomplices, and accessories of this crime in their respective jurisdictions. The States undertake to adopt the legislative measures necessary for defining forced disappearance as a crime and to cooperate among themselves to contribute to preventing, punishing, and eradicating this crime. This treaty also includes the crime of forced disappearance among those that justify extradition, so as to keep persons accused of this crime from evading the action of the judicial authorities by fleeing to the territory of another State party. It also recognizes the authority of the Commission to adopt precautionary measures in cases of forced disappearance.
Convention on the Elimination of All Forms of Discrimination
against Persons with Disabilities
Adoption: June 7, 1999. Entry into force: September 14, 2001
At its 29th regular session held in Guatemala City, the OAS General Assembly adopted this treaty. The objectives of this instrument are to prevent and to eliminate all forms of discrimination against persons with disabilities, as well as to foster the full integration of these persons to society. A Committee for the Elimination of all Forms of Discrimination against Persons with Disabilities, made up of one representative designated by each State party, is to be established to monitor compliance with the commitments acquired under this Convention.
Adoption: September 11, 2001
This Charter, approved by a special session of the OAS General Assembly, reaffirms that the promotion and protection of human rights is a basic prerequisite for the existence of a democratic society, and that democracy is indispensable for the effective exercise of fundamental freedoms and human rights, which are universal, indivisible and interdependent. The Inter-American Democratic Charter establishes in its Article 8 that any person who considers that his or her human rights have been violated may lodge a complaint or petition before the inter-American system for the protection and promotion of human rights.
The Declaration of
Principles on Freedom of Expression
Adopted by the IACHR at its 108th Regular Period of Sessions, held on October 2 – 20, 2000
After an extensive debate with various civil society organizations, the Commission adopted this declaration, based on a proposal prepared for by the then newly established Special Rapporteurship on Freedom of Expression. This Declaration includes principles related to the protection of the right to freedom of expression, in light of the interpretation of Article 13 of the American Convention and international standards. It includes the following principles: the right to seek, receive, and disseminate information and opinions freely; the right of every person to have access to information about himself or herself, or his or her assets, expeditiously and not onerously, whether in public or private records; the stipulation that prior censorship, interference, or direct or indirect pressure that restricts the right to freedom of expression should be prohibited by law; principles related to the plurality and diversity of media; among others.
Principles and Best
Practices on the Protection of Persons Deprived of Liberty in the Americas
Adopted by the IACHR at its 131th Regular Period of Sessions, held on March 3 – 14, 2008
This document establishes a series of principles concerning persons subject to a regime of “deprivation of liberty.” According to this instrument “deprivation of liberty” is “[a]ny form of detention, imprisonment, institutionalization, or custody of a person in a public or private institution which that person is not permitted to leave at will, by order of or under de facto control of a judicial, administrative or any other authority for reasons of humanitarian assistance, treatment, guardianship, protection, or because of crimes or legal offenses.” Accordingly, the definition encompasses not only those deprived of their liberty because of crimes or infringements or non compliance with the law, but also those persons who are under the custody and supervision of other institutions, where their freedom to leave at will is restricted. Among the principles indicated in this instrument are those general principles (humane treatment, equality and non-discrimination, due process of law, among others), those related to the conditions of detention of persons deprived of liberty (health, food, drinking water, accommodation, hygienic conditions and clothing, measures against overcrowding, contact with the outside world, work, and education, among others), and, finally, the principles related to the systems of deprivation of liberty.