Using the Inter- American
System for Human Rights
Using the Inter- American
System for Human Rights
A Practical Guide for NGOs
GLOBAL RIGHTS is a human rights advocacy group that partners with local activists
to challenge injustice and amplify new voices within the global discourse. With offices
in countries around the world, we help local activists create just societies through proven
strategies for effecting change.
· We seek justice for victims of human rights abuses.
· We work to promote racial and gender equality and help people and communities
feel empowered to change their societies.
· We work through field offices in Asia, Africa, Latin America, Europe, and in the
United States, partnering with local human rights advocates to strengthen their
effectiveness in combating abuses in their countries
· We focus on developing the skills of local activists that are essential to addressing
human rights concerns and promoting justice such as: documenting and exposing
abuses, conducting community education and mobilization, advocating legal and
policy reform in countries and internationally, and using the courts to increase
access to justice for disadvantaged populations.
· We help local activists to engage with the international community, including the
United Nations, to further their human rights objectives at home.
www. globalrights. org
Cover Design by Kate McCann
In the spirit of the United Nations’ encouragement of collective efforts at the international level
( Resolution 49/ 184), this manual is placed in the public domain and put at the disposal of all
interested persons to consult it or use it. Reproduction is authorized provided that the text is for
educational ends not commercial use and on the condition that credit is given to the publisher.
Citations to websites are accurate as of March 2004. Websites may change frequently. Check the
websites periodically for current information.
The opinions, findings, and conclusions or recommendations expressed in this publication are those of
Global Rights and do not necessarily reflect the views of the United States Agency for International
Development or the United States Institute of Peace.
Global Rights © March 2004
ISBN: 0- 9753197- 0- 1
ACKNOWLEDGMENTS
Global Rights: Partners for Justice would like to thank the authors of this Guide: Carlos
Quesada, Global Rights Latin America Director; Felipe González, Global Rights
Representative for Latin America ( 1991- 2003), Director of the Human Rights Program and
Professor of International Human Rights Law and Constitutional Law at Diego Portales
University, in Santiago de Chile; Gastón Chillier, Global Rights Latin America Director
( 2000- 2003), Senior Associate, Washington Office on Latin America; and Mark Ensalaco,
Director of the Human Rights Program, University of Dayton, Ohio.
We would like to express our appreciation to the Inter- American Commission on Human
Rights of the Organization of American States for allowing us to reproduce Human Rights,
How to present petitions in the Inter- American system.
We would also like to thank the many organizations and individuals who have worked with
us within the Inter- American system over the years. We hope that this Guide will provide
support to all of their efforts to promote human rights within the Americas. We would
specifically like to thank our partners who assisted with our workshops on using the Inter-
American system — Casa Allianza, Centro por la Justicia y el Derecho Internacional
( CEJIL), La Asociación de Abogados Afro- Colombianos, La Red de Abogados Afro- Latinos
y Caribeños de la Alianza Estrategica — as well as our other partners throughout the
Americas.
Additional thanks go to Aimee Sullivan, Ann Andrews, Ariel Dulitzky, Claire Antonelli,
Elizabeth West, Elvia Duque Castillo, Jennifer Rasmussen, Kate McCann, Kristina
Campbell, Maria do Carmo Cruz, Marissa Ferri, Mark Bromley, and Zakiya Carr Johnson
whose hard work and dedication helped bring this project into fruition.
This project would not have been possible without the generous funding provided by the
United States Institute for Peace, the Ford Foundation, the Open Society Institute, the John
D. & Catherine T. MacArthur Foundation, an anonymous donor, and the United States
Agency for International Development.
CONTENTS
INTRODUCTION BY GAY J. MCDOUGALL
I. A GENERAL OVERVIEW OF THE OAS WITH REGARD TO HUMAN RIGHTS 1
II. FUNCTIONS OF THE INTER- AMERICAN COMMISSION ON HUMAN RIGHTS 25
III. THE ROLE OF NGOS AT THE COMMISSION 41
IV. APPLICATION OF THE INTER- AMERICAN SYSTEM IN THE DOMESTIC SPHERE 45
V. THE VALUE OF THE INTER- AMERICAN SYSTEM 61
NOTES
APPENDICES
INTRODUCTION
For more than twenty years, non- governmental organizations ( NGOs) have played an
increasingly important role in promoting and protecting human rights at both the regional
and international level. Today, more than ever, human rights advocates in the Americas are
turning to the Inter- American Commission on Human Rights and the Inter- American Court
of Human Rights to protect human rights in our hemisphere.
Since the early 1990s, Global Rights ( formerly the International Human Rights Law Group)
has partnered with an international coalition of NGOs in the Americas to remove the
traditional barriers to civil society participation at the Organization of American States
( OAS). Global Rights is committed to expanding the access and influence of NGOs and
grassroots organizations by encouraging them to effectively use the Inter- American system
and to link their specific local advocacy or litigation efforts to broader campaigns. We also
work with our partners to reinforce their regional efforts through community mobilization,
public education, targeted media outreach, and other forms of local activism.
Global Rights offers this Guide as a tool for NGOs interested in promoting human rights at
the regional level. By inviting our local partners from Brazil, Colombia, Costa Rica,
Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, United States
and Uruguay to participate in the development of the Guide through various review and
comment processes, we hope we have created a product that responds effectively to the
broad spectrum of human rights issues that are being addressed across the hemisphere. We
hope that the Guide will:
Ø Provide NGOs with an understanding of the formal procedures and the
practical uses of the Inter- American system;
Ø Enable NGOs to make more informed choices when considering
whether and how to intervene in the Inter- American system;
Ø Provide our NGO partners with some new ideas and practical strategies
to use in advancing their own domestic agendas.
It is also important for NGOs to learn how multi- faceted advocacy efforts or campaigns that
combine both local and regional activism can often be more successful in building in-country
public support for the promotion and protection of human rights. This support can
also be vital to the longer- term goal of successfully implementing the decisions rendered by
the Commission or Court in their favor.
In this Guide you will read about the struggle of the indigenous peoples of the Autonomous
Regions of the Atlantic coast of Nicaragua and the landmark decision on their land rights
from the Inter- American Court. The Awas Tingni case provides activists in the autonomous
regions of Nicaragua with an opportunity to use this decision to establish collective claims to
traditional/ ancestral lands.
We welcome your comments and hope this Guide will assist your organization in developing
rich strategies to expand the fight for human rights in the Americas!
Gay J. McDougall
Executive Director, Global Rights
www. globalrights. org
Using the Inter- American System for Human Rights: Chapter I
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I. A GENERAL OVERVIEW OF THE OAS WITH REGARD TO
HUMAN RIGHTS
1.1 What is the OAS?
OAS is the acronym for the Organization of American States1. The OAS was founded in
1948, and all of the states in the Americas, including those of Latin America, the Caribbean
and North America, are members. It currently has 35 Member States. Of them, the only state
that currently does not participate actively in the OAS is Cuba, having been suspended from
exercising its rights in 1962.
The Organization was created by a treaty called the Charter of the OAS2 ( hereinafter “ the
Charter”), which has been revised on successive occasions. It sets forth the principal
characteristics of the Organization and its organizational structure, as well as the rights and
duties of its members.
The Organization of American States is headquartered in Washington, D. C., in the United
States. Nonetheless, some of its bodies are located in other places, such as the Inter- American
Court of Human Rights ( hereinafter “ the Court” or IACtHR3 with headquarters in San Jose,
Costa Rica) and the Inter- American Children’s Rights Institute 4 ( with headquarters in
Montevideo, Uruguay).
The OAS conducts work in the areas of diplomacy, politics, economics and human rights, as
well as in other spheres.
Thanks to the efforts of NGOs and of various states, the forms of civil society participation in
the OAS have broadened, since the Charter was signed.
1.2 Which are the OAS bodies that have an impact on
human rights?
The Inter- American system is the name for the various regional organizations dealing with
human rights. The Organization of American States has two main bodies concerned with the
protection and promotion of human rights. They are the Inter- American Commission on
Human Rights ( hereinafter “ the Commission” or IACHR) 5 and the Court. These organizations
are made up of specialists who act in their individual capacities, meaning that they do not
represent the states of which they are citizens.
There are two political bodies of the OAS, the Permanent Council6 and the General
Assembly7, which also play an important role with regard to human rights. In turn, several
organizations operate within the Permanent Council, among which stands out the Committee
on Juridical and Political Affairs ( CJPA) 8. These bodies are composed of the Member States
of the Organization.
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There are also other bodies in the OAS with specific mandates relating to human rights issues,
such as the Inter- American Commission of Women9, the Inter- American Indian Institute10, the
Inter- American Children’s Institute 11, the Unit for the Promotion of Democracy12 and the
Inter- American Juridical Committee13. However, these organizations are focused essentially
on work involving thematic study and promotion rather than on the work of protecting rights
in the strict sense of the term.
1.3 What are the principal treaties and declarations of the OAS?
What is the difference between a treaty and a declaration?
Treaties are international legal agreements that establish rights and obligations for those who ratify
them. Treaties may be signed by international organizations or by states. The latter is the case of all of
the treaties of the OAS. Treaties are legally binding on those who sign them. Declarations are less
formal agreements, but when they deal with a widespread international practice or peremptory norms of
public international law ( known as jus cogens), they are also legally binding. For example, international
human rights bodies consider that a number of provisions of the American Declaration of the Rights
and Duties of Man are binding for the aforementioned reasons. There are declarations that are solemn
and those that are not. The former generally contain a preamble and a series of articles, and their
adoption may take a long time, usually several years, as they are preceded by intense debate. For the
above reasons, they are more important than those that are not solemn, which are briefer and often more
specific. Nevertheless, the latter may be important within a certain context, for example, if they contain
a pronouncement with respect to a particular country.
As mentioned, the OAS itself was created by a treaty, the Charter of the Organization. In
order to join the OAS, a state must ratify the Organization’s Charter. This Charter imposes
certain obligations upon the States with regard to human rights; therefore, all Member States
of the OAS have the duty to protect such rights, independently of whether or not they have
ratified other treaties or declarations of the Organization.
The principal treaty on the subject of human rights is the American Convention on Human
Rights ( ACHR) 14, also known as the “ Pact of San Jose, Costa Rica”, for having been adopted
in that city in 1969. The Convention entered into force in 1978, when it was ratified by a
sufficient number of states. The Convention governs the functioning of the Commission and
the Court, and recognizes principal rights. In its original version, the Convention refers
fundamentally to civil and political rights, such as the right to life, the right to personal liberty,
freedom of expression, the right to elect public officials and to be elected to public positions,
and so on.
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Although the American Convention on Human Rights contains some references to economic,
social and cultural rights ( ESCR), they are very scant. Because of this, the Convention was
later supplemented through a Protocol in the area of Economic, Social and Cultural Rights15,
also called the “ Protocol of San Salvador”, in reference to the place where it was adopted.
This Protocol entered into force in 1998.
Another general human rights instrument is the American Declaration of the Rights and
Duties of Man16. This Declaration was adopted in Bogotá at the time the OAS was founded in
1948. It contains a list of civil and political rights and of the most important economic, social
and cultural rights.
A series of instruments on specific aspects of human rights has also been adopted within the
framework of the OAS. Among the most important are the Inter- American Convention to
Prevent and Punish Torture17, the Protocol to the American Convention on Human Rights to
Abolish the Death Penalty18, the Inter- American Convention on Forced Disappearance of
Persons19, the Inter- American Convention on the Prevention, Punishment and Eradication of
Violence Against Women20 ( also called the “ Convention of Belém do Pará”) and the Inter-
American Convention on the Elimination of All Forms of Discrimination Against Persons
with Disabilities21.
It is important to emphasize that these treaties impose certain obligations on States. Articles 1
and 2 of the American Convention establishes that the States Parties to this Convention
undertake not only to respect the rights and freedoms recognized in it, but also “ to undertake
to adopt, in accordance with their constitutional processes and the provisions of this
Convention, such legislative or other measures as may be necessary to give effect to those
rights or freedoms.” Other human rights treaties also impose this obligation to make the rights
consecrated in them effective.
The Particular Characteristics of Human Rights Treaties:
Requiring States to Protect Individuals
Generally, international treaties establish obligations among states. For example, a treaty between two
neighboring states might determine common borders. In other instances, many states agree upon a
treaty, establishing obligations among all of them ( for example, in commercial affairs). Usually in
these treaties when one state fails to comply with its obligations the other states may also be exempt
from their obligations.
The peculiarity of human rights treaties is that they impose obligations upon the states regarding the
manner in which they must conduct themselves in relation to the individuals who inhabit the territory
under their jurisdiction. Consequently, each state undertakes before the other states to protect the
human rights of those persons, and furthermore grants authority to certain bodies ( such as the
Commission and the Court) to supervise compliance with the treaty. In these treaties, non- compliance
on the part of one state does not excuse the other states from performing their obligations.
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1.4 The Inter- American Commission on Human Rights
The Inter- American Commission on Human Rights was established in 1959 and began
operating in 1960. Since 1967 it has been a body recognized by the OAS Charter. Later, the
American Convention on Human Rights established it as one of the main bodies of the Inter-
American human rights system. The structure, jurisdiction and functions of the Commission
are described in the American Convention and in the Commission’s own Statute22 and
Regulations 23.
The Commission is headquartered in Washington, D. C., in the central offices of the OAS. It is
made up of seven members, ele cted by the states of the Organization. The commissioners are
elected for a period of four years and may be reelected only once. There may not be more than
one commissioner of the same nationality. They are elected in their individual capacities, not
as representatives of the states of which they are citizens.
Why is it important that the members of the Commission
act in an individual capacity?
Not all international human rights bodies are composed of persons who act in an individual capacity.
For examp le, in the UN Commission on Human Rights the states themselves are represented, and
diplomatic considerations may affect their decisions. In contrast, in the Commission, the fact that its
members do not represent any state has contributed significantly to the effectiveness and independence
of the Commission. As such, even during periods when there were many dictatorships in the Americas,
the Commission investigated the conduct of these governments with regard to human rights and called
on the international community to take measures to prevent the violation of such rights from
continuing.
Functions of the Commission
The Commission has a series of functions that can be summarized as follows:
Prepare Reports
The Commission prepares reports on the human rights conditions in
specific countries. These reports have generally referred to the overall
situation, but they sometimes study only some specific aspects ( for
example, prison conditions in a particular country).
The Commission also prepares thematic reports, which address the
way in which the OAS states deal with a given subject, for example,
the manner in which they treat the rights of women.
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Conduct On- Site Visits
The Commission conducts on- site visits, meaning visits to places
where an evaluation of the human rights situation is considered
necessary. Over the course of its more than four decades of work, the
Commission has visited most of the OAS states. These visits are of
great importance, in that they allow the Commission to acquire
firsthand information on the human rights situation, enter into direct
contact with civil society, interact with public officials and express to
them any objections there may be to their policies and conduct, and in
general, provide visibility to the Commission, placing the issue of
human rights in a more prominent place on the agenda and in public
debate. The Commission therefore usually keeps the press informed
of its visit and holds a press conference upon its conclusion.
Develop Specialized Work in certain Thematic Areas, through
Rapporteurs and Other Mechanisms
In some areas that the Commission considers particularly relevant, it
has established rapporteurs or other bodies that deal with them
specifically. A rapporteur is someone who is appointed, in their
individual capacity, by a committee to investigate specific human
rights issues and prepare reports on those issues. For example, there
are currently rapporteurs on freedom of expression, the rights of
women, prison conditions, indigenous peoples, children and migrant
workers. There is also a unit dedicated to the protection of defenders
of human rights, taking into account the risks they often face in their
work.
To Hear and Resolve Complaints in Specific Cases
Any individual or organization may present complaints to the
Commission for the violation of the human rights of one or more
persons. The Commission studies these complaints, receives the
evidence, issues determinations with respect to the complaints,
conducts follow- up to its determinations to verify that the states
comply with them, and sends cases to the Court.
The Commission may also adopt urgent precautionary measures in
cases warranting them due to the seriousness of the situation, so as to
protect the life or other rights of individuals. In addition, it can
request that the Court order provisional measures for the same
purpose.
Other Functions
The Commission carries out several additional functions. One of them
is the work of promoting human rights, in other words, disseminating
the importance of the protection of these rights and the role that the
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Inter- American system plays in this regard. Other relevant work is the
participation of the Commission in the preparation of treaties and
declarations. More recently, the Commission has been developing an
advisory function.
The Commission carries out all of these duties employing specifically the parameters
established in the American Convention on Human Rights, the American Declaration of the
Rights and Duties of Man and other international human rights instruments.
The victims, their relatives, their attorneys, and civil society organizations in general may
participate in different ways in order for the Commission to carry out these functions
effectively. Indeed, the participation of civil society is often crucial.
The functions of the Commission and their practical use, as well as the impact of civil society,
will be reviewed in greater detail in Chapter II of this Guide.
The Evolution of the Commission:
From Dictatorial Governments to Civil Governme nts
The Commission was originally established in a context in which there were numerous dictatorships in
the Americas. In its first years of activity, the Commission concentrated its work on the preparation of
reports on the situation of human rights in countries under dictatorial regimes. Later, beginning in the
mid- 1960s, it also began to receive and resolve complaints in specific cases. These complaints dealt
mostly with massive and systematic violations of the right to life, the right to mental and physical safety
( cases of torture and other mistreatment) and other basic rights. However, the bulk of its work
continued to focus on the preparation of reports, since a more general picture of such violations, their
causes and the ways to overcome them could be presented through them.
Beginning in the mid- 1980s, and especially since the 1990s, with a clear predominance of civil
governments in the OAS, the examination of specific complaints came to be the Commission’s main
work. Notwithstanding the fact that to date the majority of these complaints continue to deal with
violations of the right to life and personal safety, they began to be more diverse from a thematic point
of view, with a great number of cases beginning to come to the Commission due to problems of
discrimination, due process, freedom of expression and other matters.
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1.5 The Inter- American Court of Human Rights
The Inter- American Court of Human Rights was created by the American Convention and
began operating in 1979. The structure, jurisdiction and functions of the Court are described in
the Convention itself and in the Statute and Rules of the Court.
The Court is based in San Jose, Costa Rica. It is composed of seven judges, elected by the
states of the Organization. The judges are elected for a period of six years and may be
reelected a single time. There may not be more than one judge of the same nationality serving
on the Court at the same time. Given that they are judges, they are elected in their capacity as
individuals and not as representatives of the states of which they are citizens.
The Inter- American Court of Human Rights has two main functions:
Contentious Function
Through this function the Court hears complaints in specific cases.
These complaints may be sent to the Court by the Commission or by
states, but not directly by individuals or civil society organizations.
The Court receives evidence and decides the cases, determining
indemnifications or other forms of compensation, ordering states to
reform their laws, or adopting other measures. The Court
subsequently conducts follow- up of its decisions to ensure that they
are complied with, and the case is closed only when the judgment has
been wholly satisfied. Only those States that have recognized
expressly the contentious jurisdiction of the Court are subject to it. 24
The Court may in addition, as previously mentioned, adopt urgent
provisional measures to protect the basic rights of individuals in
urgent cases.
Although, as indicated, individuals may not file a case directly to the
Court, they are able to participate throughout its processing in order
to ensure the appropriate defense of their rights.
Advisory Function
Through this function the Court issues decisions on legal problems
relevant to human rights issues in the Americas. For this purpose the
Court bases itself on the treaties and declarations of the Inter-
American system and on the international instruments of other
international systems for the protection of such rights. In the exercise
of its advisory function, the Court may also issue decisions on the
interpretation of specific norms of Inter- American instruments. The
Court exercises this function with respect to all of the Member States
of the OAS upon request.
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The Evolution of the Inter- American Court
During the first decade of its work after its establishment in 1979, the Court focused almost exclusively
on rendering Advisory Opinions, establishing some important foundations for the jurisprudence of the
Inter- American system. At the end of the 1980s, the Commission began to send contentious cases to the
Court more regularly, although they still represented a small percentage of the total cases decided by
the Commission. This changed with the adoption of the new regulations of the Court and the
Commission in 2001, and the volume of contentious cases before the Court increased significantly. In
spite of the fact that the states also have the power to send cases to the Court, this has only occurred on
one occasion when, in 1992, Peru sent the case of Lori Berenson at the same time the Commission did.
1.6 The General Assembly and the Permanent Council of the OAS
The General Assembly is composed of the Member States of the Organization, and the
Ministers of Foreign Affairs usually head the representation of the respective states. In some
cases, rather infrequently, some state delegations are headed by the President of the Republic
or another official who exercises the position of Head of State or of Government.
Since over a decade ago, the OAS has held a regular session of the General Assembly each
year and, when it considers it necessary, it also holds extraordinary sessions. The regular
General Assembly is itinerant and is usually held over three days beginning on the first
Monday of the month of June of each year. The extraordinary General Assembly sessions are
generally held in Washington, D. C., although not always.
The Permanent Council of the OAS is the political body of the Organization that functions
regularly and has its seat in Washington, D. C. It is composed of the Member States of the
OAS, represented by their respective ambassadors.
Together with the Secretary General of the Organization, the Permanent Council carries out
the daily work of the Organization, in political, diplomatic, economic, commercial matters,
and so on. Human rights are also among such matters. Individuals and some civil society
institutions are often not aware of this. Although throughout the history of the OAS the work
of the Permanent Council has had positive as well as negative consequences as to the
protection of human rights in the Americas, what is certain is that its influence is relevant to
those rights; as such, it is important to know about the role of this body.
The Permanent Council is composed of several committees in which civil society
organizations may also participate, the most relevant of them in terms of human rights being
the Committee on Juridical and Political Affairs ( CJPA).
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In the next section we outline the functions of the General Assembly and the
Permanent Council given that their roles are complementary.
Preparation of Human Rights Treaties and Declarations
In order to begin the preparation of a treaty or a declaration in the
OAS, the General Assembly must decide in favor of such action. On
occasion, it is possible that the Commission or a NGO conceives
initially of the idea of preparing a treaty or declaration on human
rights, but in order for its preparation to be made official, the General
Assembly must adopt a decision in that regard.
Once such decision has been made, the General Assembly charges the
Permanent Council with the task of beginning the preparation.
Usually the Permanent Council will form a Working Group within the
Committee on Juridical and Political Affairs in order for it to
formulate the articles of the draft international instrument. This
Working Group will be made up of representatives from those states
that wish to join it. The possibility of civil society having an impact
on the work carried out by the Working Group depends in part upon
the willingness of the states, but also in significant part on the
lobbying efforts made by the NGOs themselves. In this sense, it is
important for the NGOs to motivate the states with policies that are
the most protective of human rights to participate in the respective
Working Group. It is also relevant for civil society to maintain fluid
and constant channels of dialogue with the states, through informal
exchange as well as written and oral presentations before the
Group. It may also be useful for civil society organizations to
persuade the Working Group to invite specialists to make
presentations on the subject in question.
Normally the preparation of a treaty or of a declaration takes several
years. During the course of this time, successive drafts are prepared
and presented for the consideration of the Permanent Council and,
occasionally, the General Assembly. Sometimes it may be important
to promote the opening of a debate in the General Assembly
regarding the status of a draft international instrument, since the
points of view or priorities of the Ambassadors to the OAS are not
always the same as those of their respective Ministries of Foreign
Affairs, and momentum from the General Assembly can be decisive.
Moreover, lobbying the Ministries of Foreign Affairs is important
because they often send written presentations to the Working Group
within the context of treaty preparation.
Once the Permanent Council considers that a draft is in its final phase,
the Council itself will normally refine some aspects of the text. This
stage can also be decisive, given that sometimes the Council may
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introduce important last- minute changes. As such, follow- up on the
part of civil society organizations should also extend to this stage.
Given that, as of several years ago, the General Assembly sessions are
brief ( three days rather than the five that they lasted previously), it is
now more likely for the text of the international instrument approved
by the Permanent Council to be adopted without changes by the
General Assembly. Therein also lies the importance of civil society’s
involvement before the Permanent Council.
A Case of the Active Participation of Civil Society in the Preparation of a Treaty:
The Inter- American Convention on Forced Disappearance of Persons
The idea of preparing a Convention on disappearance had begun to be discussed in the OAS during the
mid nineteen- eighties. It also produced an effect in the UN, where work was begun on the preparation
of a solemn declaration on the subject. In the UN25, concern about disappearance had arisen from its
systematic practice in Latin America, but later it had spread to other continents, particularly Asia. In the
OAS, the Commission had prepared at the end of the eighties a preliminary version of the Convention,
which encompassed the most important jurisprudential developments. Nevertheless, even though a
Working Group had been established in the OAS for its study, in practice several years passed without
the states pursuing the issue effectively.
In January of 1992, however, the UN adopted the declaration that had been in preparation. This resulted
in the paradox of the UN completing its task first, even though it had initiated its work on the issue
based on the initial momentum that had arisen within the Inter- American system. Clearly, it was a
declaration and not a convention as in the case of the OAS, where the process of adoption was therefore
more complex; but measured in terms of the amount of work dedicated to it in one system and in the
other, it was evident that the UN had made a much greater effort.
( continues on the next page)
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The adoption by the UN of the Declaration on the Protection of All Persons from Enforced
Disappearance then caused the matter to be expedited in the OAS. This greater streamlining, however,
was not accompanied by a criterion protective of human rights. The Working Group, composed of
Member States of the OAS, formulated a new version of the Convention, whose norms signified an
absolute retrogression with respect to the status of the system on the subject of disappearance. Moving
completely away from the draft prepared by the Commission, from the jurisprudence of the Court in
Velásquez Rodríguez and other cases, and from several resolutions of the General Assembly, the new
draft eliminated all reference to forced disappearance as a crime against humanity, accepted the
invocation of superior orders as grounds for justification, considered legitimate the issuance of amnesty
rules on the subject, and allowed political asylum for its perpetrators, among other provisions.
This draft, still unfinished, came before the General Assembly held in May of 1992. The Assembly had
to decide what steps to take. The small group of NGOs present, made up of FEDEFAM26 ( Latin
American Federation of Relatives of Disappeared Detainees), Global Rights27 ( then known as the
International Human Rights Law Group), Amnesty International28 and the International Commission of
Jurists29, succeeded in having the resolution that was approved there include the requirement that the
civil society entities be heard during the following stage of proceedings on the draft convention. This
was preceded by an intense debate, with states that supported and states that rejected such participation.
Finally a consensus solution was reached whereby the Working Group would have to “ listen to” the
civil society organizations.
During the subsequent two years, the NGOs formed a broad coalition and worked actively to strengthen
the Convention, so as to ensure that it encompass international developments on the subject. Argentina,
Canada, Chile and the United States played a relevant role in this direction. As for the Commission, the
states continued to keep it in a secondary role, in spite of its expertise in the area.
Ult imately a text was adopted that was generally satisfactory in terms of the standards, with changes
having been made to the regulation of the four previously mentioned points, which had been the object
of severe criticism. Most importantly, the Convention consolidated, in an instrument at the treaty level,
a set of standards that until then had been developing within the Inter- American system, particularly by
way of interpretation of the American Convention on Human Rights. Nevertheless, another element
that is supposed to be present in a treaty of this nature, which is the creation of specific mechanisms
intended to make protection more efficient, received scant regulation. In its original draft, the
Commission had created some specific mechanisms for urgently confronting situations of
disappearances. These were virtually eliminated in their entirety in the final text, and therefore it is
necessary to continue using the mechanisms established in the American Convention on Human Rights.
Regardless, the overall experience was positive, in that the Convention was strengthened significantly,
and also in that an initiative was developed for the joint action of a broad coalition of NGOs, which
would later emerge as systematic work before the political bodies of the OAS.
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( 1.6 The General Assembly and the Permanent Council of the OAS, continued)
The Assignment, Receipt, Discussion and Approval of Reports on
Human Rights and the Adoption of Resolutions on the Issue
The General Assembly and the Permanent Council of the OAS are the
bodies that order the preparation of reports in the area of human
rights. They are also the ones to receive such reports, submitting them
to debate and to their possible adoption.
The political bodies of the OAS assign numerous reports that are
related directly or indirectly to the topic of human rights. In addition,
the Commission and the Court ( the latter by mandate of the American
Convention) must present Annual Reports on their activities.
These reports are first submitted for the consideration of the
Permanent Council. The President of the Commission and the
President of the Court give oral presentations and then the states
express their points of view. At times, these debates reach intense
levels, with some states that question the work of the aforementioned
human rights bodies-- generally in reaction to criticism of their record
of human rights protection-- and other states that support those
bodies. These debates tend to reflect different views of the states
regarding the role that human rights play, as well as the role of the
Inter- American bodies in the matter.
In contrast, due to the abbreviated format of the General Assembly,
currently those sessions do not usually involve significant debates
regarding these reports, with many states repeating what they
maintained in the Permanent Council.
Although the Permanent Council and the General Assembly never
formally reject the reports of the Commission or the Court due to
diplomatic practices, it is important to take into account that those
political bodies do issue resolutions with respect to the reports
presented and that the content of such resolutions may influence
the agenda of the human rights bodies. As such, it is important that
civil society become actively involved in lobbying work related to
these resolutions. It is appropriate to do this before the Permanent
Council as well as the General Assembly, since some aspects of the
resolutions are often modified by the Assembly.
In addition, the Permanent Council and the General Assembly hear
and decide upon many other resolutions that have an impact on
human rights. They may be in reference to more diverse matters such
as judicial system and human rights, terrorism and human rights, the
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strengthening of the Inter- American system, the participation of civil
society in this area, the protection of human rights defenders, and so
on. In most cases, once these resolutions are approved by Permanent
Council they are adopted by the General Assembly without further
debate. Nevertheless, in more than a few cases the Assembly makes
changes to them – sometimes important ones – and civil society has
played a central role in this through its efforts lobbying and
persuading some states.
The Political Bodies and the Inter- American Commission
During the 1960s, 70s and 80s, in spite of the fact that many of the governments represented in the
political bodies were dictatorial, these bodies usually took charge of the substantive aspects of the
Commission’s reports and debated the human rights situations of the respective states based on those
reports. Moreover, it was common for the General Assembly to issue a resolution making specific
reference to the country that was the subject of the report. Although the accused governments
sometimes impeded the Commission’s visits and put forward strong defenses, the political bodies did
not avoid debate, and the support of these bodies for the Commission prevailed ultimately. During this
period the Inter- American system presented two very marked groups: on one hand, those states with
unequivocally dictatorial governments that violated human rights massively and systematically; and on
the other hand, those others that were not in that situation, and that were in a comparatively better
situation, by virtue of having civil governments and not engaging massively in violations of the right to
life.
On shifting to a context in which civil governments predominated, it was thought that there would be
significant support for the work of the Commission. However, it has not been so. Although there are
states that support the Commission’s work, most of the states play a passive role most of the time and
react vehemently when they feel that they are questioned by such bodies. This has also allowed room
for the prominence of the most belligerent states. All of this makes the participation of civil society in
the Permanent Council and the General Assembly especially important.
Exclusive Powers of the General Assembly
In addition to having the previously discussed complementary functions with respect
to the Permanent Council, the General Assembly has certain exclusive powers with
regard to human rights. The main ones are as follows:
Elect the Judges of the Court and Members of the Commission
The General Assembly elects the judges and the commissioners from
among the candidates that have been proposed by the states. The
states also vote in the General Assembly, as occurs in all
intergovernmental organizations ( the UN, the Organization of African
Unity, the Council of Europe, and so on).
Using the Inter- American System for Human Rights: Chapter I
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Consequently, civil society is not able to participate directly in the
proposal of candidates or in their election. However, civil society may
exert influence through lobbying. This influence occurs at several
stages:
· Persuading some states to present candidates who are
specialists on human rights ( a requirement provided for
in the American Convention which is not always
complied with) and promoting their candidacies among
other states. It should be noted that this task is carried
out primarily in the respective Ministries of Foreign
Affairs and not in the Permanent Council, since it is
usually the Ministries themselves that adopt the
decisions with respect to the matter. The press can also
be used for this purpose. In any case, NGOs should
evaluate case by case not only the advantages but also
the disadvantages that the support expressed by an
NGO can represent for a candidate;
· Making states see the impropriety of electing
candidates that have a negative history with regard to
human rights, such as, for example, having exercised
governmental functions in a dictatorial regime. This
lobbying may be conducted through the Ministries of
Foreign Affairs as well as during the General Assembly
itself and, in general, by means of calling the public’s
attention to the issue;
· In general, promoting the necessity of carrying out an
informed and transparent process, with a broad debate,
with regard to the technical qualifications of the
candidates and their experience in the field.
Conduct Follow- up to the Judgments of the Court
The General Assembly of the OAS has an express mandate emanating
from Article 65 of the American Convention to monitor the
judgments of the Court, so as to ensure the effective compliance of
the states whose liability has been established in the decisions. The
Court must inform the Assembly of those cases in which states have
not abided by its decisions in order for the Assembly to adopt the
appropriate measures. This role of the Assembly derives from the
system’s characteristic of collective guarantees of the states.
Nevertheless, in practice, the General Assembly limits itself to
complying with the formality of this function without conducting
Using the Inter- American System for Human Rights: Chapter I
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follow- up that is truly effective. It is therefore indispensable that
civil society organizations play an active role in this respect.
Determine the Budgets of the Human Rights Bodies
The General Assembly plays an important part in the establishment of
the financial budgets of the Commission and the Court, although it is
the Secretary General of the OAS who assigns the amounts
specifically. This is a power that has acquired growing significance in
recent years, since the increase in the volume of cases in the Court
has given rise to new funding needs.
1.7 In what ways can civil society participate in the OAS?
Civil society organizations have always participated actively in the development of the work
of the Commission and the Court. With respect to the Commission, they have played a crucial
role in supporting its tasks by reporting violations, providing information relevant to the
preparation of country reports, summoning victims to give statements before Commission
during its on- site visits, and so on. The participation of NGOs has also been very relevant in
the processing of cases before the Court, in contentious cases – whether as advisors to the
Commission or, more recently, acting autonomously in the representation of victims- as well
as in Advisory Opinions.
As seen previously, the Permanent Council and the General Assembly of the OAS likewise
have an impact with regard to human rights. Nevertheless, civil society has not paid the same
attention to these organizations throughout the history of the OAS. This began to change
during the 1990s, when civil society began to increase its presence before the political bodies.
As the Permanent Council and the General Assembly were accustomed to a manner of
working in which they were not monitored, let alone had the direct participation of NGOs, the
process of opening it to greater participation was not easy. However, it was due precisely to
the initiative of a coalition of NGOs, which was able to garner the support of governments
favorable to the idea, that the forms of participation of civil society before the political bodies
of the OAS were expanded.
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A Brief History of the Efforts of Civil Society to Achieve
Greater Participation in the OAS
The few NGOs that attended the General Assembly of the OAS until some years ago did so through a
" gracious concession", since it was at the complete discretion of the OAS to invite them or not. This,
added to the fact that NGOs were not able to make presentations before the Assembly, gave rise to a
vicious circle, such organizations saw no point in earmarking resources for attending these meetings. In
spite of this, the participation of NGOs in the General Assembly increased progressively during the
nineties due to the fact that, in spite of the limitations, some successes were attained in lobbying at the
assemblies. Thus the vicious circle was broken and, beginning in 1997, the presence of civil society
increased significantly, with the attendance of several dozen entities at the General Assembly and with
a joint declaration signed by several hundred others.
As for the Permanent Council, the informal and irregular attendance of NGOs was allowed beginning in
the mid- nineties. However, the NGOs were not convened or notified of the agenda, and were made
aware of upcoming meetings only thanks to the goodwill of some state representatives. On other
occasions, and without there being any predefined criteria for it, they were simply excluded from
certain meetings. Formally, they were not authorized to circulate documents or participate orally.
Due to these deficiencies and to the impetus provided by the NGOs themselves and some states, the
Permanent Council established in 1994 a Working Group on the situation of the NGOs, intended to
advance toward the creation of a mechanism for consultative status that would recognize and
institutionalize their right to participate in OAS matters. However, at an initial stage, this group
concluded its task without recommending the establishment of consultative status or anything similar.
While the Working Group was active, some NGOs prepared a draft containing a set of regulations on
consultative status; this document was distributed to different governmental delegations, but none of
them ever submitted it to the Working Group, having considered that there would not be any collective
inclination toward working on it.
When it seemed that the process toward the establishment of consultative status had stalled definitively,
the issue regained unexpected strength as a consequence of the guidelines of the Second Summit of the
Americas, held in Santiago, Chile in April 1998, which emphasized the need for strengthening forms of
civil society participation. This led to the adoption of a resolution that year in the General Assembly of
the OAS calling for this participation to be made effective in the OAS. A joint Working Group of the
Permanent Council and the CIDI ( Inter- American Council for Integral Development) on the
strengthening and modernization of the OAS then assumed the task of progressing along the lines of
opening new channels for the participation of civil society. In parallel, the NGOs established a
permanent organization in order to conduct constant monitoring and make contributions to the Working
Group.
Next, the Working Group prepared a draft containing a set of detailed guidelines establishing a
mechanism of consultative status. The General Assembly of 1999 authorized the work in this direction,
adopting a resolution on the OAS and civil society that included an appendix containing the
aforementioned guidelines. The resolution of the Assembly created a committee within the Permanent
Council in charge of following up on the guidelines and completing them before the end of 1999.
The coalition of NGOs continued its monitoring work during this stage and sent a set of observations
on the draft guidelines to the aforementioned committee. This process effectively concluded in
December 1999, establishing a system of consultative status for civil society entities in the OAS. This
was realized through the committee’s adoption of the document called " Guidelines for the participation
of civil society organizations in OAS Activities" 30, and its adoption a few days later by the Permanent
Council.
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( 1.7 In what ways can civil society participate in the OAS?, continued)
The System of Consultative Status of NGOs Before the OAS
The establishment of a system of consultative status for civil society organizations
may become, if properly implemented, a significant step toward a more transparent
and efficient OAS. The established system still has deficiencies, and although over the
course of its creation process the NGOs formulated a series of proposals that were
included, there remain some limitations to their participation that do not seem
consistent with the general purpose of strengthening the participation of civil society.
In some ways, there is still a certain " jealousy" on the part of some states regarding
the fact that civil society organizations are able to assume a role that signifies a certain
shift in prominence from the states party to the OAS to such organizations.
Nevertheless, establishment of a mechanism of consultative status opens the doors to
the development of different dynamics, which should lead to a broadening of the
forms of NGO participation and of the interaction between NGOs and the
organizations of the OAS.
The guidelines that establish the consultative status begin by indicating ( paragraph 1)
that their objective is to regulate the participation of civil society organizations in the
OAS. Next, it is specified that civil society organization shall be understood as " any
national or international institution, organization, or entity made up of natural or
juridical persons of a nongovernmental nature. " ( paragraph 2). Also included is a set
of principles governing the participation of NGOs, among which it is highlighted that,
“[ t] he matters with which they are concerned must fall within the competence of the
OAS, and the aims and purposes they pursue must be consistent with the spirit, aims,
and principles established in the Charter of the OAS” ( 4( a)) and that their activities
shall contribute to the development of the activities of the organizations of the OAS
( 4( b)).
The consultative status recognizes the right of registered NGOs to participate in the
conferences of the OAS, but it is with respect to the Permanent Council and the CIDI
that the most significant innovations are introduced. Thus it is established that
“[ r] egistered civil society organizations may designate representatives to attend, as
observers, public meetings of the Permanent Council, CIDI, and their subsidiary
bodies”, this being extended to private meetings with the authorization of the
President in consultation with the participating states ( paragraph 13( a)). The NGOs
must further be informed of the calendar of public meetings and of the respective
orders of business ( 13( b)).
Also established is the right of NGOs to present written documents on matters under
discussion, which shall be distributed by the General Secretariat to member states.
When the document exceeds 2000 words, the NGO must bear the cost of its
distribution ( 13( c)). This recognizes a previously non- existent right of civil society
organizations: the right to circulate documents through official OAS channels.
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Another step without precedent in the OAS is the fact that NGOs may make oral
presentations before certain political bodies. They may be made at the meetings of the
committees, groups of experts and working groups of the Permanent Council or the
CIDI. In the case of the committees, only one presentation is authorized at the
beginning of the debate, whereas in the other organizations a new presentation can be
made upon concluding the consideration of each issue. In addition, only with respect
to the meetings of the groups of experts and working groups – and not committee
meetings- it is established that the NGOs shall receive the relevant documents prior to
the meeting.
Nonetheless, in provisions applicable to all of the above cases, the guidelines
emphasize that "[ c] ivil society organizations may not participate in deliberations,
negotiations, or decisions adopted by member states” ( with identical language in 13 d
and13 e). These provisions are ambiguous, and they do not make clear whether they
would possibly authorize the exclusion of NGOs at certain times during the
discussions, which would be completely contradictory to the purposes that inspired
the establishment of a system of consultative status. It is the job of civil society
organizations to promote an interpretation of these provisions that allows for the
broadest possible participation.
In order to make the consultative status mechanism as beneficial as possible, it will be
essential for the NGOs of the hemisphere effectively to make use of the new channels
available, taking the best advantage of them in order to strengthen the Inter- American
system. Furthermore, due to the ambiguity of some of the regulations on
consultative status, the active role of civil society organizations is indispensable in
order for those norms to be interpreted in the manner that most favors transparency
and participation.
Is it necessary to obtain consultative status in order to participate in the OAS?
First, it must be reiterated that when we talk about consultative status we are referring
to the participation of civil society in relation to the political bodies of the OAS. The
attainment of consultative status, or lack thereof, is not related, in contrast, to the
proceedings of civil society entities before the Commission and the Court.
Proceedings before these bodies are governed by the American Convention on Human
Rights and by the respective regulations of the Commission and the Court, not by the
system of consultative status, and will be reviewed later in this Guide.
Although obtaining consultative status is not essential in order for a NGO to
participate before the political bodies ( Permanent Council and General Assembly),
it is highly recommended. When an NGO does not have consultative status its
participation or non- participation depends upon the completely discretional decision
of the political bodies. In contrast, when the NGO does have such status, this
participation corresponds to the exercise of a right of which, as such, the NGO may
not be deprived based on discretion. Moreover, the acquisition of consultative status
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How to Acquire Consultative Status Before the OAS
In order to acquire consultative status before the political bodies of the OAS, civil society
organizations must submit their request to the Secretary General of the OAS at the following
address:
Secretary General of the OAS
17 Street and Constitution Avenue, NW
Washington, DC 20006 USA
The request must contain the elements specified below:
· The official name, address, and date of establishment of the organization, as well as the
names of its directors and legal representatives;
· The primary areas of the organization’s activity and indication of its relationship to the
activities of the OAS bodies in which it intends to participate;
· Reasons why the organization believes that the contributions it may make to OAS activities
would be of interest to the OAS;
· Identification of the OAS work areas in which the organization proposes to support activities
or to make recommendations on the best way to achieve OAS objectives.
The following documents should also be attached to the request:
· The Organization’s Charter
· Bylaws
· Most recent Annual Report
· Institutional Mission Statement
· Financial Statements for the year prior to the request. It should include public and private
sources of financing, referring in particular to government sources of funding.
There is a Committee on the Participation of Civil Society in OAS Activities that is responsible for
processing the requests. The Committee examines the requests and may require additional
information. The Committee transmits the requests to the Permanent Council of the OAS, which
adopts the decision with respect to the request.
Using the Inter- American System for Human Rights: Chapter I
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will allow the NGO to stay better informed as to the tasks of the OAS, placing it in
better conditions so as to make its participation more effective.
A 2003 resolution of the Permanent Council strengthened the participation of civil
society organizations, especially of those registered under the system of consultative
status. The document, entitled “ Strategies for Increasing and Strengthening
Participation by Civil Society Organizations in OAS Activities" 31, charges several
organizations of that institution with implementing a series of practical measures on
the subject, so as to increase NGO access to information on the OAS, to create regular
instances for debate in the OAS with the participation of those institutions and to
establish suitable mechanisms for dissemination on these matters. The resolution also
urged the member states of the OAS to adopt certain measures with the same
objectives.
1.8 Some Practical Aspects of Lobbying Before the Permanent
Council and the General Assembly
As previously indicated, it is best to conduct ongoing lobbying efforts in order to provide for
the adequate follow- up on issues dealt with by the Permanent Council. However, for NGOs
that do not have headquarters of representatives in the city where Permanent Council operates,
this can be difficult. Thus, it is advisable on one hand for these NGOs to establish contacts
with their counterparts that do have their main offices in Washington, D. C., and on the other,
to be aware of the key times during each year for participating directly before the Permanent
Council. It is also important to know how to prepare and carry out participation before the
General Assembly.
Since the General Assembly of the OAS is held in early June, this is the departure point of
each annual work cycle. The Assembly issues a large number of resolutions to be
implemented by the Permanent Council and its subsidiary bodies over the course of the year,
and they must usually give an account at the next General Assembly of work performed.
The times of greatest NGO activity before the Permanent Council and its Committee on
Juridical and Political Affairs coincides with the periodic sessions of the Commission, which
is when the largest number of NGOs from all over the Americas convene in Washington. The
first of these session periods normally takes place in late February and early March of each
year. The second is generally held in late September and early October.
The NGOs take advantage of these periods to agree on strategies and to make oral
presentations to the Permanent Council of the OAS and its subsidiary organizations. These are
usually accompanied by written presentations. The presentations may be complemented by
others that are prepared over the course of the year. In addition, on the occasion of these visits,
the NGOs usually hold meetings with embassies of OAS states.
In the sessions held from late February to early March, the NGOs follow up on these tasks.
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It would be ideal for the greatest possible number of NGOs to participate in the Permanent
Council sessions on human rights issues. Nonetheless, since this is often not possible due to
the scarcity of resources, it may be possible to channel presentations in writing and establish
means of coordinating with NGOs that will attend the sessions.
Further, a complementary means of lobbying is to lobby the Ministries of Foreign Affairs
themselves, so as to influence the instructions that they send to their Missions to the OAS.
However, it is important to consider that if the decision regarding a resolution is crucial to an
NGO ( for example, if it relates to the respective country), it is appropriate to make the greatest
effort to participate in the respective sessions before the Permanent Council and not wait until
the General Assembly, since in most cases now the resolutions agreed to in the Permanent
Council are adopted without changes in the General Assembly, since it does not have
sufficient time to reopen a substantial debate on the issue.
In order to participate in the General Assembly the NGO must send a letter to the Secretary
General of OAS at least 60 days in advance ( see a sample letter in the Appendices). If the
NGO has consultative status its participation will be assured; if it does not have such status, it
is — strictly speaking — within the discretion of the Secretary General whether or not to
extend an invitation, although in practice it is most likely that there will not be a problem with
participating. It is not necessary for an NGO to work in several countries in order to
participate in the Assembly. That is to say, the situation is different from that of the bodies of
the UN such as its Commission of Human Rights, where it is indeed necessary to conduct
work at the international level ( or attend under the auspices of an international NGO) in order
to participate.
In order to prepare adequately for a General Assembly session it must be understood as a
continuation of the work carried out before the Permanent Council. As previously indicated,
the General Assembly is the place where each annual cycle is opened and closed, and where
the work that the Permanent Council has been carrying out over the course of that period is
culminated. This does not mean that it is pointless for an NGO that has not been able to
attend sessions of the Permanent Council or interact in another way with the Council to
participate in the General Assembly, but it should be considered that its possibility for impact
in such a case would be greatly diminished.
There is an international coalition of human rights NGOs that conducts activities before the
Inter- American system, which in addition to monitoring the activity of the Permanent Council
readies a series of initiatives in preparation for the General Assembly. One of these initiatives
is a joint declaration, which includes the NGOs that will participate in the Assembly as well as
others that, although they are not able to participate, are interested in having their point of
view heard.
Immediately prior to the General Assembly, the NGOs usually hold a seminar or other
meeting to debate the most relevant issues concerning human rights that will be dealt with in
the Assembly. State delegates are also invited to participate in this seminar so as to sensitize
them to the key concerns of the civil society entities.
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The NGOs also hold a press conference in which they make known their proposals to the
General Assembly. The Assembly sets up a pressroom in which it is possible to maintain fluid
contact during the sessions. Due to its international nature, the Assembly is covered not only
by the communications media of the headquarter country, but also by those of other countries
as well as international news agencies. Thus, at least potentially, it is possible for civil society
to achieve greater dissemination of its ideas.
Furthermore, ever since the system of consultative status was established, a forum convened
by the OAS has also been held immediately prior to the Assembly. Civil society, the states
and officials of the OAS, including the Secretary General, participate in this forum. This is
another instance in which to make the points of view of the NGOs known to the states and the
OAS.
In contrast, during the Assembly itself, the opportunities for NGOs to give oral presentations
are very few. Although their forms of oral participation in other instances before the OAS
were broadened with the establishment of consultative status for NGOs, the same did not
occur with respect to the General Assembly, since it is now of a shorter duration than it had
been previously. Indeed, not even the Observer States of the OAS ( that is, states from other
regions of the world that do not belong to the OAS, but do attend the Assembly) currently
have this right to make oral presentations, which they used to have. Nevertheless, a practical
formula that has been used on some occasions is to obtain permission from some state for the
NGOs to occupy part of its time, or to have a state read a document prepared by the NGOs.
One example of the former occurred when Panama, host country of the General Assembly of
the OAS in 1996, yielded part of its time to an NGO of visually disabled persons so it could
express its observations to the Draft Inter- American Convention on the Elimination of All
Forms of Discrimination Against Persons with Disabilities – adopted some years later. An
example of the latter was when the Minister of Foreign Affairs of Costa Rica, the country in
which the 2001 Assembly was held, read a document prepared by a group of NGOs.
Notwithstanding the above, the NGOs may make written presentations that are transmitted
through the official channels of the OAS ( that is, they become Assembly documents).
However, the most important work that civil society organizations can perform during the
Assembly itself ( we have previously indicated the relevant initiatives that can be carried out
immediately prior to it) is lobbying. In this sense, and in coordination, the NGOs hold
meetings with the state delegations and OAS officials, to influence the decisions that may be
adopted by the Assembly, as well as to design strategies for future work. Many informal
contacts are also made, including some during the review and amendment process of draft
resolutions.
Throughout the Assembly, the NGOs meet constantly in order to stay informed of the
progress and obstacles in the lobbying work. The last day of the Assembly they hold a final
meeting on the results and implications of the work completed.
As can be appreciated, it is important that the participation of civil society organizations in the
OAS extends not only to the Commission and the Court, but also to the political bodies of the
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OAS, considering the influence — at times decisive — that these political bodies wield in the
OAS’s work on human rights.
English- Speaking Caribbean Relations with the Inter- American System
From the beginning, relationships between English- speaking Caribbean countries and the Inter-
American system have not been very good. In the mid 1960s, when these countries became
independent, a debate took place as to whether or not they should join the Organization of American
States, an institution that has been perceived in English- speaking Caribbean countries as a place for
Latin Americans to “ speak up.”
Geographic aspects, as well as the possibility of getting OAS support, particularly from the Inter-
American Development Bank ( IDB), prevailed over cultural and political fears; still, some countries
took years to join OAS – Trinidad & Tobago took five years and Jamaica seven years after their
respective independence. 32
Language was, and continues to be, an aspect hindering relationships between the English- speaking
Caribbean and Latin American countries. In addition, English- speaking Caribbean political systems
have been perceived as being more stable than their Latin American counterparts making work in the
region less of a priority.
But perhaps the element that had been most influential in the Caribbean’s attitude toward the Inter-
American system is Article 8 of the Organization of American States’ Charter, then in force, which
deliberately excluded Guyana and Belize from the OAS, due to territorial disputes – Venezuela’s claim
over a fifth of Guyana, and Guatemala’s claim over Belize– that were taking place. 33It must be taken
into account that it was Grenada’s 1978 ratification which allowed the American Convention to enter
into force. On the other hand, Trinidad & Tobago, the only English- speaking Caribbean country that
recognizes Inter- American Court jurisdiction, became the first country in denouncing a human rights
treaty in 1998.34
Trinidad & Tobago’s denouncement made waves in the region, with the result that Jamaica threatened
to follow suit. On top of it, the failure to get the other four English- speaking Caribbean states to accept
the Court’s contentious jurisdiction, and refusal by all the other Caribbean countries to ratify the
American Convention, with the exception of Barbados, makes using the Inter- American system in the
Caribbean a challenge.
Undoubtedly, the part of the discord between English- speaking Caribean countries and the Inter-
American system has been the death penalty, found in all English- speaking country law books and one
of the major reasons for their failure to ratify the American Convention.
It is important that NGO involvement should endeavor to include and motivate participation of
English- speaking Caribbean human rights NGOs. There are important organizations in Belize,
Barbados, Jama ica, and Saint Vincent & the Grenadines, which could be invited to participate in OAS
Assemblies and other activities, and/ or to encourage domestic activities in these countries to promote
the Inter- American system.
24 Using the Inter- American System for Human Rights: Chapter I
Using the Inter- American System for Human Rights: Chapter II
25
II. FUNCTIONS OF THE INTER- AMERICAN COMMISSION
ON HUMAN RIGHTS
This chapter presents the different functions of the Commission which include the following:
· Prepare Country Reports
· Conduct On- Site Visits ( to the country where the events occur);
· Develop Specialized Work in Certain Thematic Areas Through Rapporteurs and
Other Mechanisms;
· Carry out Advocacy Work and Other Initiatives;
· Hear and Decide Specific Cases.
2.1 Country Reports
The Commission prepares and publishes Country Reports in two ways. The first, through a
report dealin g exclusively with one country, may be very extensive ( over 100 pages) and is
usually preceded by a visit to the respective state, unless that state does not authorize the
Commission to enter. The second way consists of a briefer report, usually around 10 or 20
pages that is included in the Commission’s Annual Report. Generally, these shorter reports
serve to follow up on reports devoted exclusively to a single country. They may or may not
be preceded by a visit of the Commission or some of its members.
It is important to note that the members of the Commission allocate among themselves the
different countries that are part of the OAS. Therefore, to ensure efficiency in NGO work, it
is appropriate to identify the Commissioner in charge of a particular country35. Likewise, the
Commission’s staff has one or more individuals assigned to specific countries, so it is
desirable to identify them as well.
During the first decades of the Commission’s activity, the Country Reports were
concentrated almost exclusively on violations of civil and political rights ( for example, the
right to life, the right to not be tortured, the right to not be arbitrarily detained, and so on)
that were committed on a large scale by the dictatorial regimes. Subsequently, the practice
of referring also to economic, social and cultural rights ( ESCR) in these Country Reports has
become established. The reports have also come to include a gender- based perspective in
analyzing violations, as well as references to other vulnerable groups such as indigenous
peoples, African- descendent populations or others that exist in a particular state.
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The preparation and publication of Country Reports was practically the only work done by
the Commission during its early years of operation. In those first years, the Commission
prepared reports on Cuba, Guatemala, Haiti and the Dominican Republic.
Even when the processing of individual cases was established in the mid 1970s, the
Commission’s principal task continued to be the preparation of such reports. This was the
situation until around 1990. There were two basic reasons for this. First, many of the states
against which individual complaints were filed did not participate in the processing of the
case, meaning that they neither answered the complaint nor transmitted any reply to the
Commission’s requirements in the matter, or they answered only in summary fashion,
without addressing the merits of the allegations much less presenting evidence in their
defense. Second, and given the fact that the Commission was mainly confronting massive
and systematic violations, meaning violations that stemmed from a deliberate plan in certain
states, the resolution of individual cases, whether or not the state participated in the
procedure, was notoriously insufficient. If it was a question of confronting hundreds and
even thousands of violations committed by a single state within a short period of time, it was
impossible for decisions on specific cases to be effective, given the processing that they
required. Except for in certain paradigmatic cases, it was more appropriate to denounce the
general human rights situation through Country Reports.
The impact of these reports was ( and continues to be) favored additionally because in
preparing them the Commission had from the beginning made use of the on- site visits,
meaning visits to the place where the alleged violations had occurred. This mechanism,
which will be reviewed later on in this chapter, has proved to be crucial in elevating the
Commission’s profile, given that it is precisely during such visits that it obtains the greatest
press coverage, and by the same token, it is at this time that it particularly attracts the
attention of state officials, of the victims, and of other people and institutions interested in
human rights conditions. Indeed, the Commission virtually always receives new complaints
during these visits. Even in the cases in which the Commission is not given permission to
visit a country, the mere fact of this lack of permission tends to raise public interest and
places state officials in the position of having to offer explanations for their refusal.
As a result of the processes of transition to democracy in nearly all of the OAS states, the
preparation and publication of Country Reports by the Commission was reconsidered. Some
states began to assert that the Inter- American system in general and the Commission in
particular had been created within a context in which the human rights situation in the
hemisphere differed substantially from that of the 1990s. The old context was one
predominated by dictatorships that committed massive and systematic violations of human
rights, while that of the nineties was characterized by the presence of democratically elected
governments that would supposedly — as a general rule –— themselves be concerned about
the protection of such rights. This group of States affirmed that these differences of context
made evident the inadequacy of the system’s functions and forms of operating — especially
those of the Commission — with regard to current needs. Continuing their argument, they
proposed then that the Commission should concentrate its efforts on the promotion of human
rights, that is, on disseminating knowledge regarding such rights and on conducting
educational activities on the subject. Consequently, turning over the role of protecting
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human rights to the state, and making it necessary to reduce the role of the Commission or,
as was sometimes alluded to, even eliminate it.
A key proposal in this sense was to put an end to the Commission’s Country Reports. Those
reports, according to the countries that advocated for their abandonment, had made sense
during the period of dictatorships, but did not within the new context.
A secondary proposal consisted in terminating the Commission’s power to decide which
states merited reports, and leaving that determination to the political bodies of the OAS. This
was an idea that the states subject to reports had been proposing ever since the Commission
began this mode of working. But the fact is that if the situation in the Inter- American system
is compared to that in the UN, where the countries considered to require a Special
Rapporteur are selected by the states forming the Commission on Human Rights, it is
evident that the mechanism created within the first system is far superior.
Within this context, the Commission made explicit five criteria — currently still in effect —
for the determination of the countries that were deserving of Country Reports:
· In cases of states ruled by governments that have not come to power through
free, genuine and periodic popular elections by secret ballot, according to
internationally accepted norms;
· In cases of states where the free exercise of the rights enshrined in the
American Convention or the American Declaration has been in effect
suspended, totally or partially, by the imposition of exceptional measures
such as a state of emergency, state of siege, prompt security measures and
others;
· When there is reliable evidence that a state commits gross and massive
violations of the human rights guaranteed in the American Convention,
American Declaration and other applicable human rights instruments, with
violations of rights that may not be suspended, such as extra judicial
execution, torture and forced disappearance, being of special concern in
these cases;
· In cases of states that are in a process of transition from any of the three
abovementioned situations;
· When there are interim or structural situations that grossly and seriously
affect human rights, including grave situations of violence, serious
institutional crises, institutional reform processes with a serious negative
impact on human rights, or grave omissions in the adoption of measures
necessary to make human rights effective.
Furthermore, the Commission adopted a practice of sending a copy of the complete draft
report to the state that is the subject of that report. In this way, the state may make the
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observations it considers relevant. The Commission later prepares a final version of the
report, dealing with the observations of the state according to its judgment.
The preparation of Country Reports by the Commission continues to make complete sense in
certain situations. As such, this role has been reaffirmed by the Commission itself. The
reports fulfill needs that are not satisfied by the processing of individual cases alone,
particularly when it is necessary to examine the general human rights situation in a country,
verify progress or setbacks, monitor certain rights or make suggestions to state authorities
( who on occasion request these reports themselves).
Using the Country Reports of the IACHR and the UN in Conjunction
The Country Reports of the Commission and those prepared by the UN are complementary to each
other, and it is generally suitable for civil society to attempt both routes. When the gravity of the
human rights situation warrants it, the preparation and dissemination of reports on the country should
be sought from the Commission as well as one or more UN bodies.
In this sense, NGOs must make lobbying efforts to show the Commission that the conditions fall
within one of the five previously discussed criteria for the preparation of a country report. They
should carry out similar initiatives for the designation of a Special Rapporteur or, secondarily, for the
preparation of reports to be assigned to other bodies of the United Nations.
This will increase the vigilance of the international community with regard to that country and raise
consciousness within the local population regarding the gravity of the situation, enhancing the
possibilities of a change in behavior on the part of state authorities.
Duplication is not a problem when reports are prepared in parallel fashion by international bodies.
Quite to the contrary, the parallel initiatives strengthen the work. In fact, when the Commission as
well as UN organizations prepare reports on the same country, those organizations coordinate with
and inform each other, resulting in reports that are more complete and meticulous and have a greater
impact.
2.2 On- Site Visits
Among the most important attributes of the Commission is the practice of on- site visits to
countries. The visits consist of delegations of the Commission members and supporting
attorneys who go to the different countries of the OAS, hold meetings with public officials
and members of civil society, and travel to different places within the country, visiting
detention centers, communications media, churches, the police and armed forces and in
general any entity or person necessary to evaluate the situation in that country.
The visits may have different purposes. They may be intended to study the general human
rights situation in the country that is visited. It is also possible for a country to be visited in
order to verify the situation of a specific right or a particular circumstance, such as to
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examine the situation of the indigenous peoples of a country or its prison conditions. The
Commission may also conduct an on- site visit in order to obtain information relating to a
petition filed before it. Additionally, the Commission has been invited on occasion by
governments that wish to demonstrate human rights advances or promote reforms that are
blocked by congress or antiquated judicial branches. The Commission made its first on- site
visit in the Dominican Republic, in 1961. To date it has carried out more than 80 on- site
visits.
The on- site observations fulfill extremely important objectives and functions that go much
further than the verification of facts. The mere fact of the Commission’s presence in a
country generates a debate on the human rights situation. In nearly all of the
Commission’s visits, the newspapers, radio stations and television channels constantly
broadcast the activities it performs, and public debate on the issue is reinforced. At the end
of its visit, the Commission normally presents its first impressions at a press conference that
obviously generates considerable attention among the media, the authorities and the public in
general. All of this also allows a greater number of persons to know about and access the
Inter- American system. A visit of the Commission also has the function of preventing future
violations, given that on many occasions, by making known the human rights situation in
country, it contributes to the national and international public being informed, demanding
that rights be respected and exercising greater oversight with regard to government
authorities. Finally, the visits also fulfill a role in education and the promotion of human
rights. The Commission seeks to educate the authorities on their international obligations in
relation to the situation it has found. It also educated the public in general, disseminating
information on human rights and the role that the Commission can play in their defense.
Finally, it educates the international community by revealing the human rights situation in
the region’s countries.
The Case of an On- Site Visit that Ended Forced Disappearance in Argentina
A paradigmatic case in this regard was the preparation of a report on the human rights situation in
Argentina in 1979- 1980. This report and the facts surrounding it had a significant impact not only in
the OAS, but also at the level of the United Nations and on the very practice of forced disappearance
in Argentina. The Commission traveled to this country for an on- site visit in 1979, in the midst of the
military dictatorship. The visit lasted seventeen days, being one of the longest ever conducted by the
Commission. Once the visit had begun, the Commission received information that several dozen
individuals were detained clandestinely in an isolated section of a jail. The Commission even received
information on the names of some of these persons. The members of the Commission requested a list
of prisoners from the authorities, verifying that the clandestinely detained individuals were not on it.
Once at the jail, and after insisting on their wish to visit all of its outbuildings, began to hear shouts of
“ we’re here! we’re here!” In the face of the evidence, the prison authorities had to yield and allow the
Commission to meet privately with the detainees who were held secretly and, according to all
indications, were destined to disappear.
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This occurred within a context in which the Argentine government had constantly denied the secret
detention of individuals as well as their responsibility for forced disappearances. Once the General
Assembly of the OAS was informed of this background, there was an enormous commotion, with
Argentina threatening to withdraw from the organization if a resolution were adopted against it.
Ultimately, the Assembly adopted a resolution, which, in dealing with the problem of forced
disappearance, did not mention Argentina expressly; but, in any case, the effect of the Commission’s
visit had already occurred.
Very little attention had been paid in the UN to complaints regarding human rights conditions under
the Argentine dictatorship. But the firsthand evidence found by the Commission also transformed the
situation in the UN, and the Working Group on Forced Disappearance36 was created, initially dealing
mainly with the conditions in Argentina.
Most important of all was that the intervention of the Commission saved many lives, both of the
individuals they found and of many other potential victims, given that the massive practice of
disappearance ceased almost immediately.
The Decision to Conduct an On- Site Visit
Permission of the government is always required for the Commission to be able to
conduct a visit. The form in which that permission is obtained varies from case to
case. A visit may be made at the invitation of the government itself, although it is
almost always the Commission that requests the government’s invitation. Many
times governments extend the invitation with the intention of showing themselves as
collaborators of the Commission, to present themselves as a government that is open
to international oversight and that wishes to clear up doubts regarding the human
rights situation. The government’s invitation to the Commission may also be due to
the pressure exerted by civil society in that regard.
Among the reasons that lead the Commission to decide to conduct an on- site visit to
a country is the accumulation of complaints regarding violations of human rights,
especially when a systematic picture of gross violations can be inferred from them.
The Commission may also request permission to make an on- site visit for the
purpose of examining the progress that has been made in the area of human rights
since its last observations in the country.
In any scenario, the Commission will always need information from civil society to
evaluate whether the visit is necessary. As such, it is fundamental that civil society
organizations periodically send the Commission information on the situation of
human rights in the country, the degree of respect for them, the violations that
exist, the attitude of the government, and so on. There is no mechanism, format or
particular date for sending this information. Basically, when reports on human rights
are produced, it is always good to send them to the Commission. If an on- site visit
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would be useful, it is a good idea to request hearings before the Commission in
Washington to express civil society’s interest in having the Commission conduct a
visit.
Another relevant preliminary point is that the Commission’s visit is preceded by the
visit of the staff attorney in charge of the respective country37. As such, it will be
very important to maintain constant and fluid contact with that person, so as to have
an influence on the coordination of the Commission’s on- site visit.
The Activities of the Commission During a Visit
Over the course of its history, the Commission has created a practice in regard to the
activities that it undertakes in the countries it visits. The duration of the visit depends
upon the size of the country, the gravity of the situation and the agenda of work to be
done. In general, the visits last between five and ten days. The Commission always
meets with public officials from the different branches of government. Thus, it
usually meets with the President of the Republic or whoever is the Chief of the
Executive Branch, with members of congress and of the judicial branch. It also
meets with ministers relevant to human rights, such as the Ministers of the Interior
( Government), Defense, Justice, Foreign Affairs, and so on. In many cases, the
Commission requests special meetings with other relevant individuals such as the
Chief of Police, the Ombudsman, the Attorney General, the National Electoral
Board, the organization in charge of Indian Affairs, and so on. It all will depend on
the particular issues that concern the Commission.
Within the official sector, the Commission generally visits jails, military barracks,
courts, and so on. On occasion it visits refugee camps. Generally, the Commission
visits the capital and some regions of the country. It has visited indigenous
communities on many occasions. The decision regarding places to visit also depends
in large measure on the information it receives from civil society.
In addition, the Commission meets with different civil society entities such as
NGOs, religious authorities, journalists and labor unions. It also meets with pro-government
and opposition political parties, as well as with indigenous leaders or
leaders of native communities.
All of the interviews that the Commission holds and the documentation it gathers are
aimed at allowing the Commission to form a general opinion on what is happening
in the country. The most important aspect of the Commission’s practice, as
previously indicated, is that it does not meet only with government officials. This
gives it the ability to receive views, opinions and information from diverse sources
rather than information covering only the official point of view. This greatly
strengthens the impartiality of the conclusions arrived at by the Commission.
On the occasion of an on- site visit the Commission may, and in fact generally does,
receive complaints of human rights violations in particular cases. This type of
complaint may have two objectives. First, to present a complaint for the purpose of it
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following the normal process established in the American Convention on Human
Rights. In this case, it will have to satisfy the requirements set forth in the
Convention in order for it to be processed. Another possibility is for these individual
complaints to be used to exemplify the conditions being experienced in the country.
In order to perform its duties freely, the Commission requires a series of
guarantees from the government. In particular, the government must grant the
Commission all of the facilities necessary for performing its work. Among the
most relevant aspects is for the government to authorize the Commission to go to
where it wants to and conduct any interviews it considers relevant, with the
promise that there will be no retaliation of any kind against the individuals or
entities that cooperate with the Commission. The government’s compliance with
this obligation is fundamental to the success of the visit.
The Report of the Commission as the Consequence of a Visit
In most cases the Commission issues a report after making an on- site visit. Such
report will not only give an account of the activities it conducted, but rather will
mainly describe the situation it found, analyze it in light of the country’s
international obligations, and issue recommendations to the government to improve
the human rights situation in the country. An idea of what the report will contain can
be gleaned from the press release that the Commission issues at the end of its visit.
The Commission generally uses the following format in its reports to analyze the
human rights situation of a country:
· It reviews the rights and guarantees set forth in the country’s
constitution.
· It examines the international obligations of the country in the field
of human rights ( conventions that have been ratified by the
country).
· It explains the specific measures adopted by the government in
order to guarantee respect for human rights in the country.
· It looks for common features in the complaints of human rights
violations submitted by the NGO's and in the testimony of
individual victims.
· Based on the Commission’s observations during its visit, the report
analyzes the factors that the Commission considers to have
contributed to the human rights violations in the country.
· The report analyzes each one of the rights enshrined in the
Convention that are alleged to have been violated in the general and
individual complaints, and verifies compliance with each one of
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them in the Member State, first outlining its legal norm, then
describing the general observations of the Commission based on its
visit, and lastly, presenting selected cases of violations of the right
presented.
· Finally, the report includes a series of general conclusions and
recommendations addressed to the government in order to put a stop
to the violations that have been verified, or in order to improve the
situation in areas requiring improvement.
These reports are very important and have had a very strong impact on different
countries in the hemisphere. They have caused governments to change or abandon
certain practices that violate human rights, have caused other countries to take an
interest in what happens in a particular state, and have served to legitimize the
claims that civil society had been asserting.
Civil Society and the Visits of the Commission
Civil society plays a fundamental role in the entire process of an on- site visit. In
other words, the activities of NGOs are fundamental before, during and after the
visit. In many cases, the success or failure of a visit depends in large part on the
suitable involvement of the NGOs. As such, the constant, coordinated and
strategic work of civil society is crucial if it desires the Commission to visit the
country and later produce a good report that has a relevant impact on the human
rights situation in the country.
The key point is that the Commission’s visit be transformed into another tool in the
work of NGOs to protect and promote human rights, to broaden the scope of their
message and to find an ally in the Commission.
The first challenge that civil society faces is convincing the Commission of the need
for a visit and, later, getting the government to invite the Commission or allow the
visit to take place. For this, the information that is provided to the Commission is
very important. It also helps to try to attend Commission sessions regularly before
the visit, and to meet with Commission members or attorneys when the opportunity
arises. Work with government officials in order for an invitation to be extended to
the Commission should generally be directed through lobbying the Ministry of
Foreign Affairs, which represents the government in its direct contact with the
Commission.
If the Commission and the government agree on the need to conduct a visit and the
appropriate permission is granted, the role of civil society prior to the visit continues
to be fundamental. At this stage, civil society must assist the Commission, and in
particular the person in charge of organizing the visit, to prepare the agenda. Thus,
the civil society organizations must make suggestions regarding the main issues, the
officials with whom meetings should be held, the places or regions that should be
visited, and other aspects that are relevant in the specific context of the country.
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Civil society is also crucial for making contacts with a broad spectrum of NGOs and
facilitating meetings between them and the Commission.
At this preliminary stage, civil society still must be prepared. On one hand, it must
educate the public in general as to what the visit signifies and its importance. On the
other hand, it must prepare the information and documentation that it will hand over
to the Commission. Finally, they must coordinate with all of the groups so as to take
advantage of the Commission’s presence in the country in the best way possible.
Workshops, meetings, and press conferences are some of the activities that civil
society often carries out as part of the preparation for the visit.
During the visit itself, civil society must maintain the most constant contact possible
with the Commission, so as to act in accompaniment to the work that it is
undertaking. This will allow the visit to be evaluated as it is unfolding, so as to be
able to cover unforeseen aspects that arise along the way, facilitating the
Commission’s work and seeking to obtain the greatest benefit from its stay.
The Commission generally holds an extended meeting with the NGOs. This meeting
may or may not be open to the public insofar as it is appropriate and safe– for
example, in the context of a dictatorship it will usually not be safe due to the
possible infiltration of individuals. In such meeting, the representatives of civil
society presents the Commission with information and documentation, makes
suggestions to the Commissioners, proposes issues to be raised with government
officials, and so on.
In addition, the Commission holds other meetings with NGOs in particular, whether
to deal with specific cases or to examine specific aspects of the country’s human
rights situation in more depth.
Moreover, while the Commission is in country, civil society should also take
advantage of the opportunity to give its view on the human rights situation to the in
general public. Since the Commission’s presence attracts the interest of the
communications media, the NGOs should seek to issue their message at that time.
On the last day of its visit, the Commission generally holds a press conference and
issues a press release. Given that the Commission’s report may take several months
to prepare, this press conference is an important instrument in the NGOs’ work of
immediate follow up to the Commission’s visit.
After the visit, the Commission engages in the preparation of a report. At this stage
civil society must continue to provide it with information and respond to questions
that the Commission may have in general.
Once the Commission has made the report public, civil society still has an important
role. On one hand, the NGOs have a fundamental role in disseminating the report as
broadly as possible, so as to extend its reach and impact to the maximum. This may
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be in regard to the report generally or to specific aspects that it covers, such as the
rights of women or of indigenous peoples. Summaries for the press can also be
prepared in order to facilitate access to the report, which will usually be extensive.
The report is also a tool for the work of the NGOs with respect to the state. In
particular, it is important to read and analyze the recommendations that the
Commission makes for the improvement of the human rights situation. NGOs can
develop plans to encourage the different government authorities to abide by those
recommendations.
Finally, civil society must continue to inform the Commission as to the human rights
situation, the degree of government compliance with the recommendations issued,
and the evolution of the different topics that the Commission has addressed in its
report.
2.3 Specialized Work in Certain Thematic Areas Through
Rapporteurs38 and Other Mechanisms
In recent years, the Commission has been developing a series of thematic initiatives dealing
with some right or rights in particular or with certain collective rights. This is
complementary to the Country Reports, which relate to the general human rights situation in
a specific state ( except, infrequently, when a report has been prepared on a specific situation
in a country, such as its prison conditions). In this regard, reports have been prepared by
rapporteurs on themes such as the rights of women, of persons deprived of their liberty, the
condition of migrant workers and their families, and so on.
Some of these reports have been written by the Commission as a whole. Nevertheless,
beginning in the 1990s, a group of rapporteurs has been organized within the Commission.
As is well known, the rapporteurs in the United Nations play an important role in matters
regarding human rights. There are numerous thematic rapporteurs in the UN.
A series of thematic rapporteurs has been created during recent years in the Commission ( on
prisons, on the rights of women, on the rights of indigenous peoples and on freedom of
expression, among others).
Nonetheless, these thematic rapporteurs generally enjoy a considerably lower profile in the
Inter- American system that in the United Nations. The reason for this is that the resources
available for them are very limited in the Commission. Except for in the case of the
Rapporteur on Freedom of Expression, the Commission members themselves have been the
rapporteurs. Given that the Commissioners are not full- time officials, they must perform
these tasks in addition to many others. As such, their role has been limited to the preparation
of some studies, which have not had the same impact as the Country Reports.
The situation has been different in the case of the Rapporteur on Freedom of Expression,
which was created in 1998. Since it has its own resources, it is headed by a full- time
rapporteur and has its own staff. This has led to this Rapporteur engaging in activities that
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are broader than those of the others. This has consequences in several areas that are
discussed below.
First, the Rapporteur prepares and publishes an Annual Report on the situation of freedom of
expression in the Americas. This report is published as an additional volume to the Annual
Report of the Commission.
Second, the Rapporteur follows up on cases relating to freedom of expression that are
being processed in Inter- American system. This does not mean that complaints on the
issue should be submitted to the Rapporteur — they should continue to be sent to the
Executive Secretary of the Commission. However, when it is a complaint relating to this
topic, it is appropriate to send a copy of the complaint to the Rapporteur, which will follow
up on it. It is also advisable to maintain regular contact with the Rapporteur during the
processing of the case.
Third, the Rapporteur monitors attacks against freedom of expression at the domestic level
of the states, even when such violations have not come before the Inter- American system. In
this respect, the role of NGOs is crucial, since they usually make such facts known and call
the attention of the office of the rapporteur to them. The Rapporteur may issue press releases
and/ or contact the authorities of the respective country in order to deal with the violations
that have occurred.
Finally, the Rapporteur takes part in the Commission’s delegation during the on- site visits
that it makes, and also conducts its own visits. The former – in which the Rapporteur
accompanies the Commission in the on- site visits– has become a habitual practice, and
signifies a reinforcement of the Commission’s initiatives in terms of the protection of
freedom of expression. The Rapporteur also makes visits on its own. In general, because it
is a one- person body, it is more expeditious to prepare a visit of the Rapporteur than one of
the Commission as a group. For the same reason, it is convenient for local NGOs to contact
the rapporteur in urgent situations to suggest the necessity of a visit.
There is also a Rapporteur on the Rights of Women within the Commission. In contrast to
the Rapporteur on Freedom of Expression, the one that works on gender issues does not have
staff; rather, one of the Commissioners heads it. The Rapporteur on the Rights of Women
has conducted some valuable studies regarding these rights in the hemisphere, but since the
position lacks staff, it is difficult for the Rapporteur on the Rights of Women to be as
effective a complement in specific cases as is the Rapporteur on Freedom of Expression. On
the other hand, the reports that are adopted serve to raise consciousness with regard to the
rights considered therein; as such, their dissemination among civil society is very important.
A third rapporteur has been dedicated to prison conditions, so as to determine the degree to
which the prisons are compatible with international human rights standards. For this
purpose, the Rapporteur carried out a comparative study on the situation with regard to the
OAS States.
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Another rapporteur, created in 1997, addresses Migrant Workers and their families in the
hemisphere. By 2002, this Rapporteur had published four reports, which are contained in
different Annual Reports of the Commission. This Rapporteur deals only with migrant
workers and their families when they are in foreign countries. The Commission has clarified
that the rapporteur does not encompass the situation of domestic migrants, internally
displaced persons, stateless persons, refugees or asylum seekers, without prejudice to the fact
that some of them may become migrant workers.
Moreover, it is important to note that there are rapporteurs concerned with the situation of
internally displaced persons, the rights of indigenous peoples, and the rights of the child.
In spite of the limitations faced by the rapporteurs due to the lack of resources, it is
appropriate to keep the rapporteurs informed as to the issues that concern them. This
contributes to, among other things, providing impetus to individual petitions regarding such
cases, or ensuring their inclusion in the Country Reports.
Another body pertaining to the Commission in thematic issues is the Unit for Human Rights
Defenders. This unit was created at the end of the last decade at the behest of the NGOs, for
the purposes of strengthening the mechanisms for the protection of such persons and calling
the attention of states to the human rights violations they are subject to.
The issues tackled by the Commission are not limited to the above since, depending upon the
circumstances, it may also undertake studies in other areas. For example, after the attacks on
the Twin Towers, the Commission prepared an extensive thematic study on terrorism and
human rights, showing how the fight against terrorism must conform to international human
rights standards. It is valuable to disseminate and utilize these studies, as well as the reports
of the Rapporteurs, for the protection and promotion of human rights.
2.4 Human Rights Advocacy Work and Other Initiatives
In addition to the previously described functions, the Commission undertakes the promotion
of human rights, as well as other tasks.
Advocacy Work
This work, which the Commission engages in through seminars, publications,
internships and other means, has basically been in three broad areas: the dissemination
of human rights in general, the promotion of the Inter- American system of human
rights, and education on the necessity of incorporating human rights into domestic legal
systems.
The first of the aforementioned areas refers to the work carried out by the Commission
regarding the need for citizens of the Americas to become aware of their own rights.
This is an effort aimed at emphasizing human dignity, the essence of human rights. This
path intends for human rights not to merely remain a legal/ normative institution, but
rather to become a reality within the culture of the societies of the Americas. This is
closely connected to the efficacy of these rights, given that if the victims of violations
Using the Inter- American System for Human Rights: Chapter II
38
are not fully aware of them, impunity will be favored. It is also tied into support for
genuinely democratic systems; in effect, the awareness of rights is a galvanizing factor
in citizen participation, as well as in citizen control of public administration.
The second area points to the advocacy work that the Commission has undertaken in
making the hemisphere’s inhabitants aware of the existence of the Inter- American
system of human rights, as well as of the basic steps that must be taken to file
complaints with the Commission. Given that the Commission lacks the means to carry
out investigations motu proprio , it depends upon civil society to find out about human
rights violations. A large part of the Commission’s advocacy work has concentrated
precisely on this area, due to the Commission’s direct interest in ensuring that civil
society is kept well informed in this respect and that it knows who to go to and how to
do so in the case of a violation of its rights.
The third and last area refers to the advocacy work that emphasizes the need for
incorporating human rights into domestic legal systems. The international bodies play a
subsidiary role in the understanding that, under normal conditions, domestic institutions
are in a position to resolve situations of rights violations most quickly and efficiently.
This is an aspect that the Commission has also placed emphasis on, given that it is the
party most interested in ensuring that the Inter- American system is used only in cases of
real necessity.
As can be appreciated, the Commission performs important advocacy work.
Nonetheless, these activities cannot be understood as anything but a complement to
the central tasks of the Commission: the tasks of protection. There are numerous
academic, non- governmental and state bodies that carry out human rights advocacy
work, and for that reason, the role of the Commission in this respect is not unique.
In contrast, as a body for the protection of such rights, the Commission’s role is
irreplaceable, since no other entity ( not even the Court, which does not possess the
same functions as the Commission) has the same role as the Commission.
Thus, in spite of the fact that at some points in its history the Commission has been
pressured by some states to concentrate on advocacy work, it has continued to
maintain the work of protection at the crux of its action, making advocacy a
complement.
Other Activities of the Commission
The Commission has a very broad mandate, for which it is authorized to carry out a
wide and diverse range of initiatives. Standing out among them are its participation
in the preparation of human rights treaties and declarations in the OAS and the
exercise of an advisory function.
In relation to the first of these aspects, as was described in Chapter I, the
Commission as well as the political bodies of the OAS participate in the preparation
of these Inter- American human rights instruments. In the case of some such treaties
and declarations, the Commission has played a very important part; other times, the
Using the Inter- American System for Human Rights: Chapter II
39
political bodies of the OAS have not followed closely the proposals of the
Commission.
Generally, when civil society organizations are interested in promoting the adoption
of a treaty or declaration, it is important that they establish regular contact with the
Commission, so as to detect the degree to which there are points of convergence
regarding the content and mechanisms meant to be established through such
instruments. When this is the case, the Commission may become an important ally
of the NGOs. This is aside from the fact that, as indicated in Chapter I, it is crucial to
lobby the states, which definitively adopt the instruments and establish their content
and mechanisms.
As for the second aspect, the Commission is authorized to receive inquiries from
OAS States on issues relating to human rights, and is able to give its advice with
respect to the matter. Recently the Commission has been giving greater relevance to
this function, having rendered opinions on the issue of quotas for women to
guarantee their representation in political systems, and engaging in the study of
affirmative action for African- descendant populations. NGOs can advocate within
their own states for the state to make an official request of advice from the
Commission on specific human rights issues.
For more information on NGOs and the Inter-
American system, please refer to a copy of the
OAS publication, Human Rights: How to Present
a Petition before the Inter- American System,
included in the Appendix VI.
Using the Inter- American System for Human Rights: Chapter III
40
Using the Inter- American System for Human Rights: Chapter III
41
III. THE ROLE OF NGOS AT THE COMMISSION
3.1 The Role of NGOs
When a State, through direct or indirect agents, infringes on any article of the American
Convention on Human Rights and does not remedy it through its domestic legislation nor
provide reparations to the victims, the victims have the right to file an application with the
Inter- American Commission, provided the State has ratified the Convention. As it will be
seen in this chapter, the application may be filed by one person, a group of persons, or even
an NGO. In practice, it is most common for NGOs to file a petition, either jointly or
independently, with the Commission. NGOs are more acquainted with international human
rights legislation, they typically have more resources than the victim to conduct the work,
and they may have experience with the Inter- American system.
NGO participation in the process is nothing new, but it was not until the recent political
changes in Latin America that NGOs’ roles became vitally important when bringing cases
before the Inter- American Commission.
Initially, bringing cases to the Inter- American Commission was the primary goal of several
NGOs. Global Rights began bringing cases to the Inter- American Commission in the early
1990s in an effort to seek individual justice, to strengthen the Inter- American system and to
promote domestic reform and protection of human rights. Other NGOs, in particular the
Center for Justice and International Law ( CEJIL), an NGO founded in 1991, began filing
illustrative cases of systematic human rights violations in the different countries with the
main organs of the Inter- American system.
“ Bringing representative cases, exemplifying systematic human rights violations, to the
Inter- American Commission and Court has demonstrated the impact the regional protection
system may have not only on victims and their next- of- kin, but also on laws, practices, and
policies of countries in the region.” 39
Specific examples of activities carried out by NGO’s include: a) restoring the right to
education for a Haitian- descent girl born in the Dominican Republic ( Case of Dilicia Yean
and Violeta Bosica), in the field of economic, social, and cultural rights; b) an indigenous
community in Nicaragua ( Case of Awas Tingni) establishing communal land rights; and c)
providing medical treatment for HIV/ AIDS patients in Chile, in defense of the right to health
( precautionary measures). Additionally, concerning labor rights, the State of Panama
received a verdict of guilty for firing 270 workers on account of their joining peaceful
protests and demonstrations against the government ( Case of Baena Ricardo).
As seen, the system works not only in traditional litigation cases dealing with the right to
life; there are other exemplifying cases where NGOs such as Global Rights, CEJIL, Lawyers
Using the Inter- American System for Human Rights: Chapter III
42
Committee for Human Rights, Casa Alianza, the Guatemalan Association of Missing
Detainee Next- Of- Kin ( FAMDEGUA), and many others, have managed to protect and make
amendments to internal legislations, in cases of Childrens’ Rights, Women’s Rights, and
Freedom of Speech, among others.
NGOs have played and will continue to play a very important role in disseminating
information about OAS political initiatives on human rights issues. Since the mid 1990s they
have delved deeper into debates within OAS political organs. NGOs have been promoting
their joint position concerning the steps needed to strengthen the Inter- American system.
Civil society organizations have promoted an independent representation before the Court
and the establishment of a mechanism – for assessing the merits of a case before filing it with
the Court– that would take the victim’s interest into account. They have also played a major
role recently in advocating for State compliance with Commission and Court judgment
orders.
Latin American political changes in the late 1980s and early 1990s enabled a strengthening
of the Inter- American human rights system, and therefore a greater openness in filing cases
with the Commission, and then referring them to the Inter- American Court. It must be
remembered that in the Court’s first ten years only four contentious cases were heard, and in
early 2001 there were more than 36 cases being tried. 40
Because of these advances, NGOs should now see the Inter- American system as an attractive
alternative for procuring justice, and several NGOs, sometimes organized in alliances, have
started getting closer to the Inter- American system in order to strengthen their work on
human rights in the domestic environment.
As mentioned in Chapter II, there is currently an NGO coalition with the purpose of opening
a discussion space to channel initiatives that insure civil society participation and advocacy
in defending human rights in the Americas. The coalition is made up of more than 300
NGOs. This coalition meets twice a year, on the occasion of Inter- American Commission
sessions in Washington, to follow up on and debate human rights issues that are being
discussed in OAS political organs.
3.2 What can NGOs do?
· NGOs should complement the Inter- American system and not take over many of the
system’s functions. It is the Commission’s obligation, according to its functions, to
exercise a promotional and educational role about human rights. NGOs should demand
from their States and the Commission more and better promotional and education work
within the countries.
· Although most of the countries in the region today have Human Rights Offices or
Ombudsman’s Offices and their functions include promoting and educating about human
rights, in many cases these activities are geared toward the universal instruments more
than to the regional instruments on human rights. NGOs should advocate for inclusion of
regional instruments in their efforts.
Using the Inter- American System for Human Rights: Chapter III
43
· NGOs should monitor the work of the Inter- American Commission on Human Rights.
The Guidelines for the participation of the civil society have opened a politically
valuable door to participate in the various bodies of the Organization of American States
( OAS) and a unique opportunity of doing a better job.
· NGOs should pressure the Commission and the Court to have enough well trained staff
to monitor human rights from a holistic point of view rather than just a judicial
perspective.
· NGOs should work for the Commission to prepare more recommendations for the states
about public policies in different issues dealing with human rights, such as the
indigenous people, children, women, African descendants, migrants, the disabled, and
others.
· NGOs should influence the Commission to promote legislative reforms in the states to
adapt their internal legislation to the international instruments.
· NGOs should pressure the political bodies in the OAS to draft projects of declarations
and treaties about human rights, such as promoting the draft of the Inter- American
Declaration against Racial Discrimination, a process that could use the wide
participation and consultancy of civil society.
· The great challenge of NGOs is to make sure that the work of the Commission is
preventive more than reactive, s