The Inter-American Human Rights System — I/A Commission on Human Rights

1. Intensive Course on the Justiciability of Economic, Social and Cultural Rights: Theory and Practice The Inter-American Human Rights System — I/A Commission on Human Rights — I/A Court of Human Rights Tara J. Melish

2. Inter-American Commission • Inter-American Court Decisions about how to frame a case: • Justiciability requirements of system • Admissibility rules • State Duties (how to frame them) • Choice of rights (how frame violation) • European system? • Inter-American system?

4. I/A Commission 7 commissioners 4 yr term, 2x Part-time (3 mtgs/yr) Washington DC Contentious & Promotional jurisdiction I/A Court 7 judges (jurist) 6 yr term, 2x Part-time Costa Rica Contentious & Advisory jurisdiction Organization of American States(35 member states)

6. Promotional Jurisdiction Thematic Hearings Onsite Visits Special Rapporteurs Special Reports Country Thematic Advisory Opinions -- Commission -- Court Education/Trainings Periodic Reports Contentious Jurisdiction Individual Petitions Precautionary Measures Urgency Gravity Irreparability The I/A System’s Toolbox

7. Thematic Hearings

8. Onsite Visits ON SITE VISITS

9. TRAINING AND EDUCATION

10. COUNTRY REPORTS

14. HUMAN RIGHTS DEFENDERS UNIT

15. INDIVIDUAL PETITIONS

16. 3.96%

17. 36.6%

19. 65.7%

21. COMPLIANCE WITH COMMISSION’S DECISSIONS

22. ~ 90% of cases submitted to the Inter-American and European HR systems are found inadmissible!

23. May be a generalized situation, complaint of unacceptable conditions or an “abstract” case Justiciability is not necessarily relevant Requires a “concrete case” and identifiable victims Basic elements of a justiciable claim must be present Concrete injury Causal Link Promotional ContentiousJurisdiction Jurisdiction

24. Jurisdictional Requisites for Examining a Complaint I. Competence of Commission • Subject matter jurisdiction over alleged norms violated • Personal jurisdiction over parties • Temporal jurisdiction over acts giving rise to alleged violation • Locational jurisdiction over acts II. Colorability of Claim(prima facie violation) • Duty • Breach • Causation • Demonstrable Injury III. Admissibility of Petition • Exhaustion of Domestic Remedies • Timeliness • Duplication of International Procedures • Petitioner Identity If any not met, petition is dismissed

25. Subject Matter Jurisdiction What rights can be presented in a petition? • American Declaration(arts. I-XXVII) • American Convention(arts. 1–26) • Protocol of San Salvador(arts. 8.1.a y 13)* • Convention of Belem do Para(art. 7—State duties)* • Inter-American Convention to Prevent and Sanction Torture* • Inter-American Convention on the Forced disappearance of Persons* For which States???

26. Subject Matter Jurisdiction What rights can be presented in a petition? • American Convention(arts. 1–26) • American Declaration(arts. I-XXVII) • Protocol of San Salvador(arts. 8.1.a y 13)* • Convention of Belem do Para(art. 7—State duties)* • Inter-American Convention to Prevent and Sanction Torture* • Inter-American Convention on the Forced disappearance of Persons* For non-Parties to Convention, IACHR must apply Declaration (11) For States Parties to Convention, IACHR must apply Convention (24) For States Parties to Protocol, IACHR may apply Protocol (13) • Argentina, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, Suriname, Uruguay

27. Art. 29. Interpretation No provision of this Convention shall be interpreted as: . . . b) Restricting the enjoyment or exercise of any right/freedom recognized by virtue of the laws of any State Party or of another convention to which one of the said states is a party; c) Precluding other rights or guarantees inherent in the human personality or derived from representative democracy as a form of govnt; d) Excluding or limiting the effect that the American Declaration …and other int’l acts of the same nature may have.

28. Life, liberty and personal security Equality before law Religious freedom and worship Freedom of investigation, opinion, expression and dissemination Right to privacy Right to a family Protection for mothers and children Residence and movement Inviolability of the home Inviolability of correspondence Preservation of health and well-being Education Benefits of culture Work and fair remuneration Leisure Social Security Juridical Personality & Civil Rights Fair Trial Nationality Vote & Participation in Government Assembly Association Property Petition Protection from Arbitrary Arrest Due Process of Law Asylum Expansive, but high level of generality American Declaration(art. 1-27)

29. Protected ESC Rights 1948 American Declaration Inviolability of home (VIII), health (XI), education (XII), culture (XIII), work and fair remuneration (XIV), labor unionization (XXII), leisure (XV), social security (XVI), special protection for family, mothers, children (VI-VII), equality (II), privacy (V) 1969 American Convention [1978] Art. 26: rights derived from the ESC standards set forth in OAS Charter Explicit [art. 45, 49]: education, material well-being, unionize, strike, work. Implicit [art. 34, 50]: adequate housing, proper nutrition, fair wages, employment opportunities, and acceptable working conditions, health, culture. 1988 Protocol of San Salvador” [1999] Work (6), just work conditions (7), trade union rights (8), social security (9), health (10), healthy environment (11), food (12), education (13), culture (14), special protection of families, children, elderly, and persons with disabilities (15-18)

31. Broader or narrower iterations of same rights: a few examples

32. Court’s normative preferences: • Art. 4 “right to a dignified life” or “life project” • Art. 21: right to property • Art. 19: rights of the child • Art. 16: freedom of association • Arts. 8 & 25: due process & judicial protection • Art. 24: Nondiscrimination

33. Interpretative Guidance“Indirect Application” of Other Norms • Advisory Opinions • UN Treaty Body Jurisprudence • UN Guidelines & General Comments • European Court of Human Rights “[T]he jurisprudence of other international supervisory bodies like the European Court can provide constructive insightsinto the interpretation and application of rights that are common to the regional and international human rights systems.” Wayne Smith v. U.S.

34. Duties & Breach Conduct-based Duties (acts & omissions): • to respect—negative duty of restraint ag. arbitrary action • to ensure—positive duty to takeappropriate or reasonable measures to: • Reasonably Prevent violations bystate and private third parties • Diligently Respond (investigate, sanction, repair) • Appropriately Fulfill (plan of action, waiting list moving forward, appropriate budget, long/medium/short term priorities) • Heightened Duties: • Custodial Populations • Vulnerable Groups

35. Stages in the Procedure • Initial Review (if missing information, dismissed without prejudice) • Admissibility Procedure • [Friendly Settlement?] • Merits Procedure • Follow-up

36. Jurisprudence • Right to Health • Decl. Art. XI; Convention arts. 4/5 vs. 26 • Right to Education • Decl. art. XII; Convention art. 26; Protocol art. 13 • Right to Housing, Land, & Land-Related Resources • Convention arts. 4, 21, 26 (8 and 25) • Labour Rights(Unionization, Strike, Employment, Slave Labour) • Convention arts. 16 vs. 26 • Right to Culture • Declaration art. XIII, Convention arts. 21 vs. 26 • Right to Social Security • Convention arts. 21 vs. 26

37. Right to Health • Health-related harm to indigenous communities as a result of state-supported “development projects” or “extractive industry” projects. • a) Coulter v. Brazil (Yanomami peoples, build highway thru territory) • b) Ache people v. Paraguay (fatal epidemic) • c) Sarayaku v. Ecuador (extractive industry) • Protection of health care workers / patients’ access • a) precautionary measures cont.'d

38. Right to Health • Failure to provide appropriate medical attention to persons held in state custody • a) Juan Hernandez v. Guatemala (died of cholera in state prison) • b) Victor Rosario Congo v. Ecuador (died of dehydration and malnutriton in isolation cell) (psychosis; heightened duties for persons with disabilities) • c) Ximenes Lopes v. Brazil (died in state-run psychiatric facility. Failure to take appropriate measures to prevent abuse in health facilities.) • d) Panchito Lopez v. Paraguay (intolerable conditions in children’s prison) cont.'d

39. Right to Health • Duty to ensure general conditions of health, hygiene and sanitation in custodial facilities. • a) Paul Lallion v. Grenada; Benedic Jacob v. Grenada • -- UN Standard Minimum Rules for the Treatment of Prisoners • b) Mendoza Prison Inmates v. Argentina (pending) • c) Febem v. Brazil (children’s right to education and health) • IV. Failure to provide adequate health care in public and private hospitals • a) Maria Mamerita Mestanza v. Peru (forced sterilization) • b) MM v. Peru (rape by doctor) • b) Alban-Corejo v. Ecuador (medical malpractice death; no investigation) cont.'d

40. Right to Health V. Failure to provide necessary medications to non-custodial persons, especially those with HIV/AIDS a) Odir Miranda v. El Salvador (art. 26) b) Luis Rolando Cuscul v. Guatemala (art. 4) c) PRECAUTIONARY MEASURES (2000-2002 – 400 people in 10 countries) VI.Right to a Healthy Environment a) Marcel Claude Reyes v. Chile (art.13; free access to state-held info regarding proposed deforestation project) VII. Failure to provide subsistence needs to groups in “State of Emergency” a) Yakye Axsa v. Paraguay b) Sawhoyamaxa v. Paraguay c) Kakmok Kasek v. Paraguay (2010)

41. KakmokKasek Legal standard for positive provision of goods/services: 1. Knowledge of risk to life 2. Failure to take reasonable measures to prevent or avoid risk. Application to facts?

42. Right to Education I. Right Not to be Dismissed from School (a) Jehova’s Witnesses v. Argentina (b) Yean and Bosico v. Dominican Republic (birth certificate) (c) MCG v. Chile (pregnant student expelled) II. Right to Education in Custodial Settings (a) Febem Prison v. Brazil (PSS, art. 13)

43. Right to Housing and Land I. Right to be Free from Forced Evictions and Removals (a) Corumbiara v. Brazil (500 landless families) (b) Plan de Sanchez Massacre v. Guatemala (remedial plan) (c) Yakye Axsa v. Paraguay (d) Precautionary measures in Columbia to prevent II. Retaliatory abuses for popular organizing around land claims (a) Diniz Bento da Silva v. Brazil (retaliatory killing of members of “landless workers” organization) III. Right to Adequacy of Housing Units in State-Run Subsidized Housing Program (a) Consumer Rights Organization of Chile cont.'d

44. Right to Housing and Land IV. Dilatory Administrative Processing of Land Claims (a) Yakye Axsa / Sawhoyamaxa v. Paraguay -- right to have land returned. V. Housing and Property Confiscations VI. Extractive Industry Concessions on Indigenous Lands (a) Awas Tingni v. Nicaragua (1999) (b) Maya Toledo v. Belize (2005)—logging and oil (b) Saramaka v. Suriname (2007)—logging and gold mining (c) Sarayaku v. Ecuador—oil cont.'d

45. Right to Consultation and Consent Restriction on right to use and enjoyment of right to property for indigenous communities permissible only where restriction: • Previously established by law • Necessary • Proportional • Have aim of achieving a legitimate objective in a democratic society • Does not amount to a denial of their survival as a tribal people (i.e., have a “profound impact”). SAFEGUARDS: • Effective participation (consultation and consent) • Reasonable benefit • Prior environmental and social impact assessment

46. Right to Housing and Land Friendly settlements: • Riato • Mercedes Julia Beraiga v. Chile

47. Labor Rights(art. 16 vs. 26) Retaliation for Labor Unionizing • Milton Garcia Fajardo v. Nicaragua(dismiss 142 customs workers) (art. 26) • Baena Ricardo v. Panama(dismiss 270 workers) (art. 16) • Acevedo Jaramillo v. Peru(1000+ workers dismissed)(art. 25) • Pedro Huilca Tecse v. Peru • Finca “La Exacta” v. Guatemala Failure to Recognize Union • Union of Ministry of Education Workers v. El Salvador (PSS, art. 8.1.a)

48. Labor Rights Arbitrary and Unjustified Job Dismissals • Judges and magistrates • Police (sex discrim; retaliation for pay/benefits related activities) Freedom from Slave Labor • Jose Pereira v. Brazil(2 killed/injured after escape) (friendly settlement)

49. Right to Social Security(cuts to pension benefits) • Nat’l Vanguard Movement of Retirees and Pensioners v. Uruguay • Five Pensioners v. Peru • VIASA Pensioners v. Venezuela

50. Right to Culture • Grand Chief Michael Mitchell v. Canada (imposition of custom duties on cross-border trade of traditional goods amg. First Nations) • Sarayaku Indigenous Peoples v. Ecuador (extractive industries)