CHAPTER I

ORIGIN AND JURIDICAL BASES OF THE

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

          A.          The Fifth Meeting of Consultation and the IACHR

          The Fifth Meeting of Consultation of Ministers of Foreign Affairs (Santiago, Chile, 1959) adopted a resolution on human rights whereby it established an Inter-American Commission on Human Rights, charged with “furthering respect for such rights.” Pursuant to that resolution, the Commission was to be organized by the Council of the Organization and would have the specific functions that the Council assigned to it.

          The Council approved the Statute of the Commission on May 25, 1960, and it elected its seven members on June 29 of that year.

          Article 1 of the Statute adopted by the Council defined the Commission as an autonomous entity of the Organization of American States, the function of which was to promote respect for human rights. Those rights were understood to be those upheld in the American Declaration of the Rights and Duties of Man (Art. 2).

          The Commission, whose members were to be elected for four-year periods to represent all the member states of the Organization and act on their behalf (Art. 3), was given certain powers that would enable it to perform its function of promoting respect for human rights by developing an awareness of human rights among the peoples, making recommendations to the member governments, preparing studies, requesting reports on measures taken by the governments in the area of human rights, and serving as organ of consultation of the Organization in the field of human rights.

B.              Expansion of the Powers of the Commission

          Later, the Second Special Inter-American Conference, held in Rio de Janeiro, Brazil, in November 1965, decided to expand the functions and attributes of the Commission, since the Eighth Meeting of Consultation (Punta del Este, Uruguay, 1962) had pointed to the “inadequacy” of the faculties and attributes conferred upon it by the Statute” which had made it “difficult for the Commission to fulfill it assigned mission.” At its session held between April 18 and 28, 1966, the Commission incorporated the agreed-upon amendments into its Statute, which appear in Article 9 bis, presented below:

Article 9 bis

         The Commission shall have the following additional functions and powers:

         a) To give particular attention to observance of the human rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man;

         b) To examine communications submitted to it and any other available information; to address the government of any American State for information deemed pertinent by the Commission; and to make recommendations, when it deems this appropriate, with the objective of bringing about more effective observance of fundamental rights;

         c) To submit a report annually to the Inter-American Conference or to the Meeting of Consultation of Ministers of Foreign Affairs, which should include: (i) a statement of progress achieved in realization of the goal set forth in the American Declaration; (ii) a statement of areas in which further steps are needed to give effect to human rights set forth in the American Declaration; and (iii) such observations as the Commission may deem appropriate on matters covered in the communications submitted to it and in other information available to the Commission.

         d) To verify, as a condition precedent to exercise of the powers set forth in paragraphs b) and c) of the present article, whether the internal legal procedures and remedies of each member state have been duly applied and exhausted.

          Further, in part I of the Resolution that established the Commission, the Fifth Meeting of Consultation instructed the Inter-American Council of Jurists to proceed to prepare “a draft convention or draft conventions on the Creation of an Inter-American Court for the Protection of Human rights and of other organizations appropriate for the protection and observance of those rights.” The Fifth Meeting of Consultation was of the view that eleven years after the proclamation of the American Declaration of the Rights and Duties of Man—progress having been made during the same period in both the United Nations and the union known as the Council of Europe, in the codification and the methodical study of this field, the climate in this hemisphere was favorable to the conclusion of a convention. It also felt that it was essential that such rights be protected by a juridical system, so that men would not be driven to the extreme expedient of revolt against tyranny and oppression.

          Having completed its task, at its Fourth Meeting (Santiago, Chile, 1959) the Council prepared a draft convention on Human Rights which contained the substantive part with respect to such rights, including the creation and functioning of a Court and an Inter-American Commission on Human Rights. This draft was then submitted to the Second Special Inter-American Conference for consideration, which in turn decided to send the draft to the Council of the Organization with instructions to update it and complete it, consulting the Inter-American Commission on Human Rights and such other organs and agencies as it deemed appropriate to this end. Having done this, it was instructed to convoke an Inter-American Specialized Conference.

          C.     Amendment of the Charter of the OAS.

                    The new Status of the Commission

          On February 27, 1967, in Buenos Aires, Argentina, the Protocol of Amendment to the Charter of the Organization was signed. Article 112 of the Protocol of Amendment to the Charter created an Inter-American Commission on Human Rights whose principal function was to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters; the Protocol of Amendment also raised the Commission’s rank to that of a principal organ of the Organization (Article 51), and provided that an Inter-American Convention on Human Rights was to determine the structure, competence, and procedure of the Commission (Article 112, second paragraph). It also provided that until the Inter-American Convention on Human Rights entered into force, the Commission created by the Fifth Meeting of Consultation “shall keep vigilance over the observance of human rights” (Art. 150).

          In April of 1967, the Commission presented to the Council its opinion on the draft Convention on Human Rights, which as noted earlier, had been entrusted to it by a mandate of the Second Special Inter-American Conference.

          D.          Status of the American Convention on Human Rights

          Finally, on November 22, 1969, the American Convention on Human Rights was signed in San José, Costa Rica. It entered into force almost nine years later, on July 18, 1978, with deposit of the eleventh instrument of ratification by the member state of Grenada. At the time of approval of this report, there are 15 states parties to the Convention: Bolivia, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada. Guatemala, Haiti, Honduras, Jamaica, Nicaragua, Panama, Peru, and Venezuela. The status of the signatures, ratifications and adherences is as follows:                                               

          The adoption of the American Convention on Human Rights and its subsequent entry into force not only strengthen the inter-American system for the promotion and protection of human rights by making the Commission and in general the inter-American mechanisms for the protection and promotion of those rights more effective, but also marked the climax of the development of the system’s standards by changing the juridical nature of the instruments upon which its institutional structure rested, which until that time were instruments of a conventional nature.

          As stated in the first paragraph of its preamble, the purpose of the Convention is “to consolidate in this Hemisphere within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.” The first part of the Convention establishes the obligation of the states to respect the rights and freedom recognized in the Convention and to ensure to all persons subject to their jurisdiction the freedom to exercise those rights and freedom. It then goes on to define the rights and freedoms protected, which are mainly civil and political rights, since with respect to economic, social, and cultural rights, the states only undertake to “adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively… the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States” by “legislation or other appropriate means” (Art. 26).

          Special mention should be made here of the important innovation that Article 3 of the Convention introduces into the system, as it provides that the member states shall undertake “to provide the Commission with such information as it may request of them as to the manner in which their domestic law ensures the effective application of any provision of this Convention.” This differs from the provisions of the old Statute that empowered the Commission merely to urge the governments to provide information on any measures that they had adopted with respect to human rights. Another important innovation that the Convention introduces into the inter-American system is that it extends the right to present petitions to encompass states parties, even though, in accordance with Article 45, this right is subject to the fact that both the state exercising that right and the state against which the petition is filed have recognized the competence of the Commission to receive and examine this type of communication. To date, only Costa Rica, Jamaica, and Venezuela have stated that they recognize the competence of the Commission in this regard.

          In its second part, the Convention establishes the means of protection and makes reference there to the Inter-American Commission on Human Rights and to the Inter-American Court of Human Rights, which it declares to be competent “with respect to matters relating to the fulfillment of the commitments made by the states parties to this Convention.”

          As said earlier, the Convention entered into force on July 18, 1978. On September 20 of that year, the Permanent Council approved resolution 253, whereby it provided that the Inter-American Commission on Human Rights, established by the Fifth Meeting of Consultation of Ministers of Foreign Affairs, would continue to exercise its functions until such time as the new Commission to be elected by the Assembly was duly installed; it also made the necessary provisions with reference to application of the Statute and Regulations in force at the time the resolution was approved and with respect to the application of the Statute and Regulations to be approved later.

          THE NEW STATUTE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

          A.          Structure and Purposes of the Commission

         At its Ninth Regular Session (La Paz, Bolivia, October 1979), the General Assembly approved the new Statute of the Commission. Its Article 1, like Article 112 of the Charter of the OAS which established it, defines the Commission as “an organ… created to promote the observance and defense of human rights and to serve as consultative organ of the Organization in this matter.”

          In general, it can be said that the important changes that the Convention introduced with reference to the Commission are reflected in the new Statute. Thus, the Commission, and not its members—as was previously the case, represent all the member states of the OAS. The Commission itself was raised (Article 51 of the Charter as amended), by providing that the seven members of the Commission shall be elected to four-year terms and in a personal capacity, by the General Assembly (Article 3) and not by the Council of the Organization as provided for in Article 4 of the old Statute, even though according to Article 11 the task of filling the vacancies that occur corresponds to what is now the Permanent Council. The members so elected may be reelected only one time.

          As for the Commission’s internal organization, the new Statute provides that it shall be composed of the Chairman, a First Vice Chairman and a Second Vice Chairman, who shall hold office for a period of one year and who may be reelected only once in each four-year period.

          The specialized operations unit provided for in Article 40 of the Convention and in Article 14 bis of the old Statute to serve as Secretariat of the Commission will, under the terms of Article 21 of the new Statute, be in the hands of an Executive Secretary who shall be an individual of high moral character and recognized competence in the field of human rights and who will be appointed by the Secretary General of the Organization in consultation with the Commission.

          B.          The Rights Protected

          As for the rights protected by the Commission, the new Statute has made a distinction between the status of the states parties to the Convention and states that are not parties to the Convention. Article 1, paragraph 2, states the following:

         For the purposes of the present Statute, human rights are understood to be:

         (a)      The rights set forth in the American Convention on Human Rights, in relation to the States parties thereto;

         (b)      The rights set forth in the American Declaration of the Rights and Duties of Man, in relation to the other member states.

          C.          Functions and Powers

          The new Statute also draws a clear distinction between the Commission’s powers with respect to all the member states of the Organization of American States, and its powers applicable only with respect to States Parties to the American Convention on Human Rights or with respect to member states of the Organization that are not parties to that instrument. With respect to the first, these powers come from the Charter of the Organization of American States and from the earlier practice followed by the Commission. The practice applicable to states parties to the American Convention all come from that instrument. Finally, the powers that the Statute has conferred upon the Commission with respect to member states of the Organization that are not parties to the American Convention are the same as those it had under the previous Statute. Articles 18, 19, and 20, presented below, contain the provisions with respect to the Commission’s functions and powers.

Article 18

         The Commission shall have the following powers with respect to the member states of the Organization of American States:

         a.       to develop an awareness of human rights among the people of the Americas;

         b.       to make recommendations to the governments of the states on the adoption of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitments, as well as appropriate measures to further observance of those rights;

         c.       to prepare such studies or reports as it considers advisable for the performance of its duties;

         d.       to request that the governments of the states provide it with reports on measures they adopt in matters of human rights;

         e.       to respond to inquiries made by any member state through the General Secretariat of the Organization on matters related to human rights in that state and, within its possibilities, to provide those states with the advisory services they request;

         f.       to submit an annual report to the General Assembly of the Organization, in which due account shall be taken of the legal regime applicable to those states parties to the American Convention on Human Rights and of that system applicable to those that are not Parties;

         g.       to conduct on-site observations in a state, with the consent or at the invitation of the government in question, and

         h.       to submit the program-budget of the Commission to the Secretary General, so that he may present it to the General Assembly.

Article 19

         With respect to the states parties to the American Convention on Human Rights, the Commission shall discharge its duties in conformity with the powers granted under the Convention and in the present Statute, and shall have the following powers in addition to those designated in Article 17:

         a.       to act on petitions and other communications, pursuant to the provisions of Articles 44 to 51 of the Convention;

         b.       to appear before the Inter-American Court of Human Rights in cases provided for in the Convention;

         c.       to request the Inter-American Court of Human Rights to take such provisional measures as it considers appropriate in serious and urgent cases which have not yet been submitted to it for consideration, whenever this becomes necessary to prevent irreparable injury to persons;

         d.       to consult the Court on the interpretation of the American Convention on Human Rights or of other treaties concerning the protection of human rights in the American states;

         e.       to submit additional draft protocols to the American Convention on Human Rights to the General Assembly, in order progressively to include other rights and freedoms under the system of protection of the Convention, and

         f.       to submit to the General Assembly, through the Secretary General, proposed amendments to the American Convention on Human Rights, for such action as the General Assembly deems appropriate.

Article 20

         In relation to those member states of the Organization that are not Parties to the American Convention on Human Rights, the Commission shall have the following powers, in addition to those designated in Article 17:

         a.       to pay particular attention to the observance of the human rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man;

         b.       to examine communications submitted to it and any other available information, to address the government of any member state not a Party to the Convention for information deemed pertinent by this Commission, and to make recommendations to it, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights, and

         c.       to verify, as a prior condition to the exercise of the powers granted under subparagraph b. above, whether the domestic legal procedures and remedies of each member state not a Party to the Convention have been duly applied and exhausted.

          D.          Procedure

          As for procedure, the new Statute left the matter of processing petitions or communications to the Regulations, even though in cases where a violation of a right upheld in the American Convention on Human Rights is alleged, the Regulations are to conform to the provisions of articles 44 through 51 of that Convention; with respect to denunciations or complaints of violations of human rights attributable to states not parties to the American Convention on Human Rights, the Regulations are to contain the pertinent standards from the previous Statute and take Permanent Council resolution 253, of 1978, into account.

THE NEW REGULATIONS OF THE INTER-AMERICAN COMMISSION

ON HUMAN RIGHTS

          At its forty-ninth session (April 1980), the Inter-American Commission on Human Rights approved its new Regulations, made up of four sections, divided into chapters and articles.

          Section I contains five chapters and governs the nature and make-up of the Commission; its members, officers, Secretariat and functioning.

          Section II, as stated earlier, establishes the various procedures which, in accordance with the Statute, the Commission must follow, depending upon whether the procedure applies to a state that is a party to the American Convention on Human Rights or to one that is not. Moreover, that section concerns the on-site observations conducted by the Commission, the general and special reports issued by it, and the hearings that the Commission conducts.

          Section III of the Regulations concerns the relations of the Commission with the Inter-American Court in the consideration of any matter brought before the Court. Chapter II of this Section then establishes the regulations to govern the procedure to be followed when the Commission, acting in accordance with Article 61 of the American Convention, decides to bring a case before the Court.

          Finally, Section IV contains the final provisions, those that govern the interpretation and amendment of the Regulations.

RELATIONS WITH OTHER ORGANS OF THE SYSTEM AND WITH

REGIONAL AND WORLD AGENCIES OF A SIMILAR NATURE

          During 1979, the Commission continued to maintain cooperative relations with the Inter-American Commission of Women, the Inter-American Children’s Institute and the Inter-American Indian Institute, specialized organs of the OAS, insofar as their respective purposes and objectives concern human rights. Moreover, during the period in question, an exchange of documents and information intensified relations with the United Nations Commission and Committee on Human Rights and with the European Commission on Human Rights, whose Secretariat, because of an exchange program established earlier, was kind enough to send one of its officials to headquarters, who remained among us for one month and worked in close cooperation with officials of the Executive Secretariat of this Commission.