Human Rights for all: How the Inter-American system protects Human Rights

by Sir Clare Roberts 

Introductory

I would first like to thank the Independent Jamaican Council for Human Rights and the Norman Manley Law School for inviting me to give the 2012 Annual Human Rights Lecture.  The lecture is entitled Human Rights for All:  How the Inter-American System Protects Human Rights.  Human Rights for All also just happens to be the name of a new NGO that is set up in Antigua and Barbuda for the purpose of promoting and protecting human rights.

The Inter-American system

The members of the Organization of American States adopted certain international instruments that have become the building blocks of a regional system for the promotion and protection of human rights.  That system recognizes and defines those rights, establishes binding rules of conduct to promote them and creates organs to monitor their observance.  The two main pillars of the system are the American Declaration of the Rights and Duties of Man (1948) and the American Convention on Human Rights (1959).  The two main organs are the Inter-American Commission on Human Rights (1959) and the Inter-American Court of Human Rights (1979).

All thirty-five Member States of the OAS are considered to be legally bound by the American Declaration.  Currently twenty-four Member States have ratified the American Convention, six of which are Caribbean Member States.

Three of these Caribbean States have also accepted the contentious jurisdiction of the Inter-American Court of Human Rights: Barbados, Haiti and Suriname.

The Inter-American Commission on Human Rights

The Commission consists of 7 members elected by the General Assembly to a four-year term but they are eligible for re-election only once for a further four years.  In order to qualify to be a commissioner one must be of “high moral character and recognized competence in the field of human rights”.  It is important to note that the members of the Commission are elected in a personal capacity.  Once on the Commission they do not represent the country that might have nominated them or the country of which they are nationals.  In fact a commissioner is not allowed to sit in on any deliberations involving her country.

At present we have two distinguished members from the Caribbean on the Commission, namely Commissioner Tracy Robinson of Jamaica.  Commissioner Robinson’s father, international judge Patrick Robinson, also served on the Commission, and Commissioner Rose-Marie Belle Antoine.

The Inter-American Court of Human Rights

The Court consists of seven judges, “nationals of the member  states of the Organization, elected in an individual capacity from among jurists of the highest moral authority and of recognized competence in the field of human rights, who possess the qualifications required for the exercise of the highest judicial functions in conformity with the law of the state of which they are nationals or the state that proposes them as candidates”.

Presently we have Judge Margarette May Macaulay of Jamaica sitting as a Judge of the Inter-American Court of Human Rights.  Judges are elected for a six year term and may be re-elected only once.

Functions of the Court

The Court was established in 1979 to enforce and interpret the provisions of the American Convention on Human Rights. Its two main functions are thus adjudicatory and advisory. Under the former, it hears and rules on the specific cases of human rights violations referred to it. Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.

The Commission must appear in all cases before the Court (Article 57) and in fact the Commissioners actually appear before the Court.

Functions of the Commission

Under Article 41 of the Convention the functions of the Commission are set out as follows –

The main function of the Commission shall be to promote respect for and defence of human rights. In the exercise of its mandate, it shall have the following functions and powers:

  • to develop an awareness of human rights among the peoples of America;
  • to make recommendations to the governments of the member states, when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights;
  • to prepare such studies or reports as it considers advisable in the performance of its duties;
  • to request the governments of the member states to supply it with information on the measures adopted by them in matters of human rights;
  • to respond, through the General Secretariat of the Organization of American States, to inquiries made by the member states on matters related to human rights and, within the limits of its possibilities, to provide those states with the advisory services they request;
  • to take action on petitions and other communications pursuant to its authority under the provisions of Articles 44 through 51 of this Convention; and
  • to submit an annual report to the General Assembly of the Organization of American States.

You will see that of the seven functions and powers only one is to deal with petitions.  Yet the Commission uses most of its resources, its personnel, money and time in dealing with petitions.  I believe that the first function should be given the most resources – “to develop an awareness of human rights among the peoples of America”.  That for me is the most pressing task in protecting human rights.  When people are aware of their rights, they have made the first step in protecting them.

How The Commission Works

The Commission fulfills its functions by the use of the following tools at its disposal.

The Case system – any individual or group in the region can bring a case against his government before the Commission.  The relevant human rights are those defined by the Convention in the case of parties to the Convention and those found in the American Declaration in case states that are not party to the convention.  For instance, the Commission will apply the convention in Jamaica or Barbados cases but will look to the Declaration in cases against the USA, Antigua or Cuba.    There are almost no restrictions with regard to standing.  Any person or group of persons without regard to nationality, citizenship or age may bring a complaint before the Commission.  The complainant may be a direct victim or a third party acting with or without authorization of the victim.

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