By: Dinah Shelton, Manatt/Ahn Professor of Law, The George Washington University Law School and Counselor in International Law at the International Judicial Academy

Eight months before the adoption of the Universal Declaration of Human Rights in December 1948, the Organization of American States (OAS) adopted the Inter-American Declaration of the Rights and Duties of Man, the first inter-governmental instrument to list internationally-guaranteed rights and freedoms. As an OAS Member State, the United States participated actively in negotiating the text of the Declaration and voted for its adoption.

A decade later, the OAS took a further step in creating a seven-member Inter-American Commission on Human Rights to promote and protect human rights in the hemisphere. Members of the Commission are nominated by the member governments and elected to four-year terms by the OAS General Assembly. Commission members may be re-elected once. The Commission held its first session in 1960 and since then has held two to three sessions annually, most of them at its headquarters in Washington, D.C. but sometimes in other member countries.

The Commission’s promotional activities include providing advisory services, training, and other technical assistance to member states. The Commission also has competence to monitor human rights in all 35 OAS member states, including the two States (Cuba and Honduras) whose governments are currently suspended from active participation in the work of the Organization as a sanction for violating OAS norms. The Commission carries out its monitoring activities through on-site visits to observe the general human rights situation in a country or to investigate specific situations. Since 1961, the Commission has carried out 69 visits to 23 member States, including the United States, and published forty-four country reports.

As with other international human rights bodies created since 1945, the Commission almost immediately began receiving individual or group complaints about violations of the rights set forth in the Declaration. In 1965, the Commission was expressly authorized to examine such complaints or petitions. Since then over 12,000 cases have been processed or are currently being processed, including some high-profile cases concerning the United States.

The Commission’s Rules establish that any person, group of persons or non-governmental organization may present a petition alleging violations by one of the OAS Member States of the rights protected in the American Declaration or the 1969 American Convention on Human Rights. The Commission applies the Convention to process cases brought against those States which are parties to that instrument (the U.S. is not). For other States, like the U.S. and Canada, the Commission applies the American Declaration. Responsibility for violations can be based either on violations committed by State agents, or by failure of the State to exercise due diligence to prevent a violation or remedy it once it has occurred.

Before the Commission can examine a petition, it must be shown that the victim has exhausted all domestic remedies, unless; 1) those remedies do not provide for adequate due process; 2) effective access to those remedies was denied, or 3) there has been undue delay in the decision on those remedies. The petition must be presented within six months after the final decision in the domestic proceedings. If domestic remedies have not been exhausted, the petition must be presented within a reasonable time. Other admissibility requirements are set forth in the Commission’s Rules.

The Commission transmits petitions that are not obviously inadmissible to the relevant government for its reply. There is often, a formal decision taken on admissibility of the petition before a decision on its merits. In quite a few cases, the Commission issues precautionary or interim measures to preserve the status quo or protect petitioners or witnesses while the case is pending. The petitioners and the governments submit written briefs and evidence and the Commission may undertake negotiations for a friendly settlement of the case. The Commission also may hold hearings at any stage of the proceedings to hear arguments and witnesses or carry out its own investigations, conduct on-site visits, request specific information from the parties, or accept amicus briefs. At the conclusion of the proceedings, the Commission issues a report with its findings and, if it has found a violation, recommendations to the government. The report is not public, but gives the government a period of time to resolve the matter. If it fails to do so, the Commission prepares a final report with conclusions and eventually publishes it unless the government complies with the recommendations.

For States Parties to the Convention, a further stage may occur. The Convention creates an Inter-American Court of Human Rights, headquartered in Costa Rica. The Court’s jurisdiction is optional with States Parties (the majority of them have accepted it) and if the State in question has accepted that jurisdiction, the Commission or the government may take the case to the Court, which has power to issue binding judgments and reparations. To date, the Court has decided close to 200 cases.

During its fifty year history, the Commission has been involved in nearly all of the major human rights crises in the hemisphere, involving civil wars, massacres, military coups, and other gross and systematic violations of human rights. Representatives of the Commission were in Chile within ten days of the takeover of the government by Augusto Pinochet in 1973. The Commission’s relatively small size, while detrimental in some respects given its workload, has the advantage of providing rapid decision-making and flexibility of response. Its power to undertake country studies is unique among international human rights procedures and has effectively combined promotional and protective activities.

The United States actively litigates cases, participating in hearings and submitting detailed legal arguments. It has succeeded in some cases: for example, the Commission found no violation based on a petition asserting that Roe v. Wade, 410 U.S. 113, violates the Declaration’s right to life provision See: Case 2141 (U.S.) decided March 6, 1981. The Commission has also rejected petitions for failure to exhaust local remedies, including a complaint brought by members of the MOVE organization. See Case 10,865 (U.S.), admissibility decision of March 12, 1993. In other instances, however, the Commission has found the U.S. to have violated rights guaranteed in the Declaration. In 1987, it determined that the juvenile death penalty in the United States violated human rights norms, while rejecting allegations in another case that the imposition of the death penalty in the U.S is applied in a racially-discriminatory manner. Case 10.031, 17 May 1990. Among recent decisions, the Commission found the U.S. in violation of human rights norms in a District of Columbia voting rights case. In another widely followed case, it has issued precautionary measures on behalf of detainees being held in Guantanamo prison. It also currently has pending a petition brought by Jessica Gonzalez, who claims a violation of her rights because the courts, including the Supreme Court, denied her a remedy for the failure of local authorities to protect the lives of her children from an abusive ex-husband, against whom she had a court order.

The Commission faces many challenges familiar to courts and quasi-judicial bodies world-wide: a rising caseload, under-funding, lack of staff, and insufficient meeting time. For an institution whose mandate to promote and protect human rights extends to 35 countries, four to six weeks of sessions a year is clearly inadequate. In addition, the Commission must rely upon the OAS political bodies for support to ensure compliance. When these bodies are composed of representatives of governments the Commission finds in violation of human rights norms, the support is not always strong and compliance is a major issue now and for the future. Yet, despite these problems, the Commission’s impact is undeniable and there are individuals throughout the hemisphere who literally owe their lives to its accomplishments over the past fifty years.

References:
Inter-American Commission on Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev. 12, 31 January 2007, available online at http://www.cidh.oas.org/DefaultE.htm.

(In June, 2009 Professor Shelton was elected to the Inter-American Commission on Human Rights to serve a four-year term beginning in January, 2010.)

« Back to the first page