The Inter-American Human Rights System: Multifaceted Powers for Addressing Economic Injustice

Beth Lyon

Neglect of economic and social rights � the extreme poverty affecting vast parts of the population � has been the fundamental cause of the terror prevailing in several countries of the hemisphere.'

1. Introduction

The Inter-American human rights mechanisms confronted terrible human rights violations in the latter-twentieth-century with creativity and determination. To carry out this work, they shaped a flexible jurisprudence and practice that well prepared them to turn to the hemisphere�s most pressing social justice concerns. Although economic and social rights have received relatively little attention in the past, and cultural rights only slightly more, an important protocol came into force last year, and several pending petitions have the Inter-American human rights system poised to engage with the human rights of the poor.

 

The Inter-American mechanisms� flexible mandates offer economic, social and cultural rights activists a broad range of possible advocacy activities and outcomes. To facilitate work on these issues, the following traces economic, social and cultural rights protection in the OAS human rights documents, then examines the relevant jurisprudence of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The article concludes with an overview of current advocacy efforts and comments on practice in the Inter-American human rights system.

2. Normative Framework
2.1 Organization of American States
It is through the founding documents, the institutions, and the human rights instruments of the OAS that economic, social, and cultural rights are enforced at a regional level in the Americas. Capping 122 years of formal regional cooperation, the OAS came into being in 1948 with the adoption of the OAS Charter. The principal OAS human rights actors are the OAS General Assembly, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

2.2 Complementarity and ESCR Obligations
All OAS member states share enforceable economic, social and cultural rights obligations. After the 1948 American Declaration of the Rights and Duties of Man led the world with its enumeration of economic, social and cultural rights, enforcement languished throughout the cold war. Political efforts to 'slow-track' economic, social and cultural rights took a strange turn in the Americas, resulting in an enforceable Declaration, a civil and political rights-focused Convention, and an ESCR Protocol that is now in force, but only two provisions of which may form the basis of an individual petition. Ratification of the region�s human rights treaties is still uneven, but the American Declaration on the Rights and Duties of Man formally legally binds each of the hemisphere�s 35 countries through reference in the Charter of the Organization of American States. With the entry into force of the Additional Protocol to the American Convention (the San Salvador Protocol) in November, 1999 eleven governments are further held to a detailed enumeration of economic, social and cultural rights.

2.3 Charter of the Organization of American States
In the OAS Charter�s 'Integral Development' Chapter, OAS member states make extensive non-rights-based commitments to cooperate and intervene in their domestic economies 'for the establishment of a more just and social order that will make possible and contribute to the fulfillment of the individual.' This chapter also enumerates some explicit government-to-individual obligations, including the right to education and labor union rights.

2.4 The American Declaration of the Rights and Duties of Man
The American Declaration, adopted by the Ninth International Conference of American States in 1948, sets forth a significant list of economic, social and cultural rights (see following chart). The American Declaration arose in the same historical context as the Universal Declaration on Human Rights, and had a similar purpose: to inspire the later promulgation of enforceable human rights treaties. The American Declaration quickly took on a additional and more concrete role. In repeated resolutions over the decades after the Charter established the Inter-American Commission on Human Rights, the OAS General Assembly charged the Inter-American Commission with enforcing the Declaration. The result is extensive caselaw and reporting by the Commission directly applying the Declaration. The General Assembly resolution initially establishing the Commission�s single petition jurisdiction also instructed the Commission to 'pay particular attention' to particular Declaration rights, all of them civil and political. Over the years, however, the Commission has adjudicated claims based on every American Declaration provision, and in 1989 the Court endorsed the justiciability of the American Declaration.

2.5 Charter of Social Guarantees
The Charter of Social Guarantees is a little-known declaration adopted by the same conference that produced the OAS Charter and the American Declaration. The Charter includes 38 substantive articles detailing labor rights written 'in the belief�that it is to the public interest�to give workers guarantees and rights on a scale not lower than that fixed in the Conventions and Recommendations of the [ILO].' As a detailed statement of rights contemporaneous with the American Declaration, the Charter could be used to persuade regional adjudicators to adopt progressive interpretations of the Declaration and Convention.

 

2.6 American Convention on Human Rights
The American Convention on Human Rights entered into force on July 18, 1978. The preamble states that 'the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.' However, the drafters decided to defer specific enumeration of economic, social and cultural rights to a later treaty styled as a protocol. Therefore, the Convention treats economic, social and cultural rights in a single substantive article entitled Progressive Development: 'The States Parties undertake to adopt measures�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.'

The American Convention also instituted a procedural mandate designed to promote economic, social and cultural rights. Article 42 requires that States Parties copy to the Commission the reports they submit annually to the Inter-American Economic and Social Council and the Inter-American Council for Education, Science, and Culture, 'so that the Commission may watch over the promotion of the rights implicit in the [OAS Charter].'

Significantly, the Inter-American Court and Commission have established that the American Declaration is a source of international obligations for OAS member states and that American Convention norms will be relied on 'insofar as [petitioners allege] violations of substantially identical rights set forth in both instruments.' These decisions establish a complementarity principle by which individual petitioners should fill substantive gaps in the American Convention with arguments under the American Declaration.

2.7 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ('Protocol of San Salvador')
The Protocol of San Salvador is the instrument the drafters anticipated when they stripped economic, social and rights from the American Convention. The Protocol was adopted in 1988 and went into effect on November 16, 1999. The Protocol reflects the influence of various treaties, particularly the International Covenant on Economic, Social and Cultural Rights (ICESCR), and with its broad range of enumerated rights has been praised as an improvement on the ICESCR in some respects. Curiously, the Protocol does not include a separate right to housing, although that right can be argued by inference from other rights and is also included in the American Declaration.

The greatest potential deficiency in the Protocol from the individual petitioner�s standpoint is the provision stating that violations of the rights in articles 8(a) (associational trade union rights) and 13 (right to education) can form the basis of individual petitions before the Commission and Court. This might be interpreted to mean that the other articles cannot form the basis of individual petitions. However, the Protocol states that any rights already binding on states by virtue of 'internal legislation or international conventions' cannot be restricted because the Protocol either does not recognize the right or recognizes it to a lesser degree. Therefore, petitioners should look to the American Declaration for rights that may not provide a jurisdictional basis if taken solely from the Protocol.

Advocates may want to advance the other articles of the Protocol to inform the interpretation of economic, social and cultural rights laid down in other treaties. The Commission uses human rights precedent from other fora to inform their decisions, and the Court has held that it may interpret non-regional human rights treaties binding on governments under its jurisdiction. Argued within this context, the Commission and Court should view the Protocol as a valuable tool even if some of the enumerated rights may have merely interpretive or persuasive value. Additionally, as a detailed, authoritative statement of economic, social and cultural rights, all the provisions of the Protocol should play an important role in the system�s non-petition functions, including the Commission�s country and thematic missions, hearings, and reporting, and Court advisory opinions.

2.8 Other Regional Treaties
Two other enforceable inter-American human rights treaties are relevant to the economic, social and cultural rights of particular vulnerable populations. The Inter-American Convention to Prevent and Punish Torture requires that States Parties address torture and cruel, inhuman or degrading treatment or punishment in their jurisdictions. These provisions may offer appropriate parallel grounds in cases of economic, social and cultural rights violations regarding prisoners and suspects held in the custody of the treaty�s States Parties. Similarly, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women ('Convention of Belem Do Para') emphasizes the right of women to enjoyment of all human rights, including economic, social and cultural rights. The Convention of Belem Do Para, which entered into force on March 5, 1995, also includes a pledge from States Parties to 'take special account' of the intersectional vulnerability of women who are members of a minority race, ethnicity or immigration status, who are displaced, pregnant, disabled, minors, elderly, socioeconomically disadvantaged, affected by armed conflict, or deprived of their freedom. Both Conventions create reporting obligations and the Convention of Belem Do Para explicitly establishes jurisdiction in the Commission and Court for individual and advisory petitions.

2.9 General Assembly Declarations and Resolutions
The Inter-American Declaration on Family Rights, approved by the OAS General Assembly in 1983, asserts the family�s right 'to enjoy the social, economic and cultural conditions that favor its strengthening and comprehensive development.' The Proposed American Declaration on the Rights of Indigenous Peoples contains a strong restatement of economic, social and cultural rights as applied to indigenous people.

In addition, many General Assembly resolutions underscore the importance of economic, social and cultural rights and urge the Commission to make observations on economic, social and cultural rights in the hemisphere. In a recent resolution entitled Global Solidarity in Hemispheric Affairs, the General Assembly urged OAS member states to respect human rights 'with special regard for social, political, and economic rights.'

2.10 Summit of the Americas

The Summit of the Americas process is an important locus of economic, social and cultural rights-related activities. In 1998, the first Summit created 29 ongoing thematic mandates, each with a particular country designated the 'responsible coordinator' and also with an OAS organ appointed as the 'executing agency.' The Inter-American Commission serves as the executing agency for the human rights, migrant workers, basic rights of workers, and indigenous populations mandates. The International Labor Organisation is an executing agency of the labor matters mandate. By negotiating indicators, setting target goals and establishing an office for ongoing follow-up, the Summits are beginning to establish benchmarks that may inform the region�s human rights mechanisms as they move into more extensive treatment of economic, social and cultural rights. Human rights advocates should therefore not only make use of the work of the mandates, but should also regard these activities as important advocacy opportunities.

 

3. Interdependent Institutions


The future protection of economic, social and cultural rights in the Americas depends most on the commitment and ingenuity of two inter-American human rights institutions: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Each mechanism has a unique role in the protection of human rights in the Americas and its own relevant jurisprudence.

3.1 Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights has jurisdiction over petitions alleging violations of the American Declaration against governments that have not ratified the American Convention ('Declaration States'). It also has the jurisdiction to rule on violations of the American Convention and other in-force regional treaties as against States Parties to those instruments.

Article 42 of the American Convention gives the Commission unique protective functions with regard to economic, social and cultural rights, as the human rights repository of the annual reports of the Inter-American Economic and Social Council and the Inter-American Council for Education, Science, and Culture. From its early days, the Commission acknowledged that poverty and economic disparities lie at the heart of civil and political rights violations, and made sporadic attempts to track social conditions and relevant legislation in the OAS countries. In recent years the Commission has increasingly actively promoted economic, social and cultural rights.

3.1.1 Contentious Commission Cases
Any person, group of persons, or nongovernmental, non-business entity can lodge an individual petition with the Commission. Contentious cases concerning economic, social and cultural rights represent only a handful of the Commission�s extensive jurisprudence. To date, no subsistence right has received a detailed analysis in the contentious case context. The Commission has been most likely to raise and find violations of economic, social and cultural rights in cases involving vulnerable populations, such as political prisoners, children and indigenous people.

3.1.1.1 Right to Property
The right to property is the most closely analyzed of the economic, social and cultural rights in the Inter-American Commission�s published contentious case decisions. The number of published decisions dealing with property rights has expanded dramatically in the last few years. Most of these petitions were declared inadmissible or are pending an evaluation of the merits, but an analytical framework has begun to emerge from the Commission�s admissibility decisions on the right to property.

Admissibility requirements that have proven to be particular challenges in right to property cases include, first, the 'natural person' rule, meaning that petitioners and victims must be natural persons, not business entities. The second common admissibility problem for right to property claims is timeliness of the petition. For example, in a 1998 decision, the loss of a Supreme Court appeal marked the point of exhaustion for the purposes of the six month deadline. However, the petitioners went on to request an internal investigation, which the Commission decided was not a 'jurisdictional recourse,' and the six months time ran while the petitioners pursued the investigation. Another issue that arises in the admissibility context is the definition of property. The petitioner�s underlying right to the property in question must be an absolute, acquired right. The Commission has held that in order for an alleged taking to constitute a 'potential direct violation' of the right to property under the Convention, it must have been the result of a state action constituting 'clear arbitrariness.' If the petitioner/victim recovers her property to her satisfaction, the claim will be ruled inadmissible.

Petitioners used artful arguments in a recent positive admissibility decision. In Eolo Margaroli and Josefina Ghiringhelli de Margaroli, the Commission admitted a right to property claim when the petitioners laid out and rebutted possible justifications for the government taking at issue, including 'social interest' and 'eminent domain'. The petitioners further argued that 'they do not want to undermine the State�s discretionary right to conduct economic, social, and cultural policies, but rather to show that the principles followed in the case are unreasonable. A fair balance between the general interest and basic rights is missing.' Arguments such as these are critical to guide adjudicators and situate them in their appropriate role of balancing interests as they establish the substantive criteria of previously unexplored rights.

3.1.1.2 Right to the Preservation of Health and to Wellbeing
The Commission has found violations of the right to the preservation of health in the context of unhygienic prison conditions. In 1977, the Commission ruled that assimilationist and child labor policies violated the health rights of the Ach� indigenous people in Paraguay. These cases underscore the possibility that establishing the core minimum content of economic, social and cultural rights may be best accomplished in cases dealing with vulnerable populations.

3.1.1.3 Other ESCRs in Contentious Commission Cases
The Commission also found a violation of the rights to culture and to leisure in the Ach� case. In a case without reported resolution, the Bolivian government was accused of violating the right to culture for closing a university. The right to education has arisen in a few decided petitions; the most detailed of these involved the expulsion of Jehovah�s Witness children from Argentinian schools. In 1996, the Commission ruled that threats against and the attempted murder of a trade union organizer constituted a violation of freedom of association, and in 1997 it admitted a case on trade union activities. In two petitions decided in the 1970s, the Commission found that the Cuban government violated the right to formation and protection of families for preventing the petitioners from leaving the country to join their spouses.

3.1.1.4 Pending Commission Cases
In recent years, civil society in the Americas has greatly expanded its attention to pursuing economic, social and cultural rights at the regional level. Recently the Commission admitted a case arguing that the disappearance and subsequent adoption of a child constitutes a violation of the right to formation and protection of families. The Commission is also considering a case alleging a violation of the right to protection of mothers and children in the context of an extrajudicial execution. The Commission recently granted precautionary measures to prevent an immigrant child living in the Dominican Republic 'from being deprived of her right to attend school and to receive the education provided to other children of Dominican nationality.' Another important economic, social and cultural rights petition pending in the Commission involves a challenge to welfare scalebacks in the United States.

3.1.2 Commission Hearings and Reporting on Conditions
The Commission devotes substantial efforts to general conditions-focused missions, hearings and reporting. The country reports have evolved into a useful tool for addressing trends in individual petitions and, through OAS General Assembly adoption of the reports, gaining General Assembly recognition of violations and endorsement of specific recommendations to the country in question. The reports were also viewed as a vehicle for the Commission to address socioeconomic conditions, and most included some data on economic indicators, but it was not until the mid-1990s that the Commission began to seriously analyze those conditions in terms of rights and make specific recommendations. These more activist reports reflect the Commission�s increasing willingness to apply economic, social and cultural rights standards. Several thematic Commission reports also call attention to economic, social and cultural rights. In recent years the Commission has held thematic hearings examining the right to education in the Americas, and economic, social and cultural rights in Guatemala.

3.1.3 Commission Reports on Economic, Social and Cultural Rights
Periodically, the Commission addresses the state of economic, social and cultural rights in its annual reports. In the 1980s, these statements primarily tracked the progress of the San Salvador Protocol and included uncritical summaries of general government self-reporting. In the 1990s, the reports became significantly more detailed. The Commission�s most comprehensive statement appeared in its 1993 Annual Report, in which the Commission confirmed that it intends to continue using international sources for information on economic, social and cultural rights, and stressed the importance of the rights to health and education. The Commission also recommended the appointment of an OAS Special Rapporteur on economic, social and cultural rights.

3.2 Inter-American Court of Human Rights


The Inter-American Court of Human Rights has adjudicatory jurisdiction over cases brought to it by the Commission and by States Parties to the American Convention. The Court also issues advisory opinions regarding the human rights treaty obligations of American states.

To date, the Court has barely addressed economic, social and cultural rights. In a 1999 case against Per�, the Court decided that the loss of property flowing from detention did not constitute a separate violation of the right to property. In the case of Aloeboetoe, et al., the Court relied on tribal customary law rather than the relevant national law to determine how the government should compensate the families of tribal members extrajudicially executed by Surinamese soldiers. A Court advisory opinion regarding proposed legislation in Costa Rica invoked American Convention article 26 for the proposition that no State Party may restrict human rights guarantees, and stated that 'the difference between civil and political rights and economic, social and cultural rights follows merely historical reasons and not juridical differences among them.' In 1993, the Court dismissed a case involving right to property claims on procedural grounds.

In 1998, the Commission lodged an application with the Court against the Nicaraguan government alleging violations of the right to property for failure to recognize the territory of the Awas Tingni Indigenous Community. Deciding this case will give the Court an important opportunity to clarify the government�s duties, although the result may be a decision too particular to be of guidance outside the indigenous context.

4. Civil Society
Non-governmental organizations have begun to organize around the use of human rights law to address poverty in the Americas. In 1998, a group of fifty experts and activists produced the Quito Declaration on the Enforcement and Realization of Economic, Social and Cultural Rights in Latin America and the Caribbean. The Declaration provides a progressive statement on economic, social and cultural rights, and signals important cohesion amongst domestic and international groups around the concrete and juridical goals that should shape the expanding attention to these rights. The Center for Justice and International Law (CEJIL), the primary NGO litigator in the system, has supported and participated in the efforts to bring economic, social and cultural rights to the Commission.

Two institutes particularly focused on the Inter-American human rights system, the Interamerican Institute of Human Rights and the American University Center for Human Rights and Humanitarian Law Digest Project offer some helpful resources relating to economic, social and cultural rights. In particular, a joint publication of the Center for Human Rights and Humanitarian Law and the Inter-American Development Bank includes a chapter on economic, social and cultural rights that includes commentary by Latino activists, translated European commentary, and an overview of domestic laws relating to these rights.

5. Practice in the Inter-American Human Rights System
The Inter-American system�s pre-database case reporting system hampers accessibility, but progressive admissibility standards, informal rules on accessing adjudicatory staff and mentor NGOs facilitate advocacy. European NGOs have been involved in some of the initiatives described above and in other petitions that are in preparation, and over the last decade law students from several universities have appeared before the Commission. Despite its severe resource constraints, with only 15 staff attorneys addressing more than 945 pending cases, the Commission has shown increasing willingness to engage with economic, social and cultural rights.

The Commission actively pursues implementation of its recommendations through the use of press releases, 'follow-up recommendations,' and General Assembly adoption of its reports. There is also discussion of establishing a General Assembly working group on implementing recommendations. With the assistance of thoughtful advocacy from civil society, the Inter-American human rights system can become a loud voice against the degradation of poverty and cultural intolerance in the region.

Beth Lyon is Practitioner-in-Residence, International Human Rights Law Clinic, Washington College of Law, American University, Washington DC, USA