Advocacy before the Inter American System for the Protection of Human Rights

Advocacy before the Inter American System for the Protection of Human Rights

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In three regions around the world, governments
have agreed to establish international institutions to monitor and protect human rights. One of
these is the Inter-American System for the protection of human rights, created by the
Organization of American States. Engagement with the Inter-American System
can be a powerful way of raising awareness about a human rights issue, giving victims
an opportunity to be heard, and bringing about change. The System is made up of two bodies: the Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights. Each has different
functions. The Commission monitors human rights conditions
in all thirty-five independent countries of the Americas. It receives complaints, called petitions,
to determine if a State has violated an individual or group’s human rights and to identify
how the State should compensate the victim and avoid similar injustices in the future. The seven Commissioners visit countries in
the region, hold thematic hearings on issues of concern, and publish reports on human rights
conditions. The work of the Commission’s rapporteurs
helps it gain expertise and raise awareness in priority topics, including the rights of
specific communities or groups. For its part, the Court issues judgments in
complaints brought against States that have accepted its jurisdiction, but only when those
cases are not successfully resolved by the Commission. Twenty States have accepted the Court’s
jurisdiction. Both the Court and Commission can ask the
government to take action to prevent irreparable harm to the subject of a petition or to an
individual or community in immediate danger. These actions are called provisional or precautionary
measures. The Inter-American System is not meant to
take the place of national courts or to second-guess the decisions of local judges, so long as
the domestic proceedings respected the parties’ fundamental rights. Petitioners must generally
try to resolve the issue using regular legal proceedings in their own country first. The
Commission and Court cannot decide individual guilt or innocence. By using the petition system, requesting thematic
hearings before the Commission, meeting with or submitting information to a rapporteur,
and using the Commission’s reports to educate the public, advocates can raise awareness
of a human rights problem and increase pressure for governmental action. Often, engagement with the Inter-American
System should be part of a broader advocacy strategy and should be followed by local efforts
to monitor compliance, negotiate with the government, and make the affected community
aware of the outcomes. All countries, or States, in the Americas
have agreed to respect the human rights identified in the American Declaration on the Rights
and Duties of Man. Some States have also ratified regional human
rights treaties, which include the American Convention on Human Rights And treaties on specific topics. Through these agreements, States have promised
to ensure the rights to: life, liberty, humane treatment, equality, freedom of religion,
freedom of thought and expression, freedom of association and assembly, privacy, family
life, movement, fair trial, property, judicial protection, honor and dignity, a name, nationality,
participation in government, the benefits of culture, health, education, asylum, work
and social security. Our understanding of these rights is continually expanding. Two separate mechanisms allow individuals
and groups in the Americas to seek the protection of the Inter-American System when their human
rights have been violated or are at risk. These mechanisms – the individual petition
system and requests for precautionary measures – each have their own rules and procedures. The petitioner – or, person submitting the
complaint – can be an individual or group of people or a nongovernmental organization
recognized by any OAS Member State. If the petitioner and victim are not the same person,
the Commission can keep the petitioner’s identify confidential. But, the Commission
must always have the petitioner’s current contact information and, the petitioner’s
authorization if someone else will represent the petitioner or communicate with the Commission
on his or her behalf. Petitions and requests may use the standard
form and can be submitted online, by postal mail, by email or by fax. Whenever possible, petitions should be written
in the official language of the accused country. The petition must provide specific minimum
information, as listed in Article 28 of the Commission’s Rules of Procedure. Identify the victim or group of victims, who
may include family members if they also suffered harm. Individually name the victims or identify
the specific, defined group or community they belong to. Describe the alleged harm in detail. How did
a situation, occurrence or series of events keep an individual or group from enjoying
certain human rights? Explain why the government is responsible
for the harm – through the actions, acquiescence or omissions of the State itself or its representatives.
Identify the specific officers, agencies, law or policies that caused or allowed the
violation to occur. Identify the State where the violation occurred
and the State responsible for its occurrence. These are usually the same country, but may
be different or multiple countries. If the State has not ratified the American
Convention, the petition must allege a violation of a right protected by the American Declaration. Identify the date or timeframe of the alleged
violation, which must be after the State agreed to comply with the American Declaration or
American Convention. The victim must exhaust domestic remedies,
which means going to the local courts and pursuing civil or criminal proceedings to
try to resolve the problem. This generally means appealing to the highest court of appeals
that has jurisdiction if a successful outcome is not reached in the lower courts. Submit
the petition within six months of when the victim exhausted domestic remedies. If domestic remedies are unavailable, ineffective
or insufficient, the petition must be submitted within a “reasonable time”, or as soon
as it is clear that the State is unlikely to remedy the violation on its own. The Commission cannot resolve a complaint
that has already been decided by another international dispute settlement mechanism with similar
jurisdiction, such as a U.N. human rights treaty body complaints mechanism. If requesting precautionary measures, explain
the risks faced, whether the State is informed of those risks, and – if so, if the government
has undertaken any protective action or investigation. The
Inter-American Commission on Human Rights
processes petitions in three stages: initial evaluation, admissibility, and merits. In
certain circumstances, the Commission may then refer the case to the Court. Requests
for precautionary measures are processed differently, and can be decided within one week or a several
months, depending on the urgency and information submitted. The Commission processes petitions and requests
for precautionary measures with the support of the lawyers who work in its Executive Secretariat,
in Washington, D.C. Within a few weeks of receiving a petition,
the Registry section of the Commission’s Executive Secretariat sends written acknowledgment
to the petitioner and assigns the petition a number. Petitions are evaluated in order of receipt,
unless there are particularly urgent reasons to evaluate a petition sooner – such as
very young or old age or terminal illness of the victim or if it illustrates a systemic
pattern of violations. The Registry decides to either: open the petition
for processing or close the petition with no further analysis. If the information provided
is insufficient, it may request additional information from the petitioner. In this stage, the Commission relies only
on information submitted in writing by the petitioner to determine if the petition meets
the requirements of Article 28 of the Rules of Procedure. The State is not informed and
does not participate. If the petition is opened for processing,
the file is transferred to the section of the Executive Secretariat with responsibility
for that country, and the petition and evidence are sent to the State for its response, or
“observations”, which it must submit within three months. At this point, the Commission can also help
negotiate a friendly settlement between the parties. In the “admissibility stage”, the Commission
decides whether it has competence over the matter based on where, when and under which
State’s responsibility the alleged violation occurred. And, it determines whether the petition
meets the non-duplication, timeliness and exhaustion requirements and if the facts alleged
tend to establish a violation of the State’s human rights obligations. The Commissioners consider the arguments and
evidence of the State and petitioner, and may hold a hearing or working meeting to gather
additional information from the parties. The Commission publishes it decision on admissibility
and sends it to the State and petitioner. If the petition is admissible, it is given
a case number and enters the merits phase. Sometimes, the Commission will decide the
merits at the same time as admissibility and issue only one report– such as when the
victim alleges a violation of due process that also prevented him or her from exhausting
domestic remedies. In the merits phase, the petitioner can request
financial assistance from the Legal Assistance Fund for the costs of pursuing the case. The petitioner and then the State each have
four months to submit initial arguments on the merits, and may submit additional information
in writing or in working meetings or a public hearing before the Commission. The Commissioners
decide whether the State is responsible for a violation of the victim’s rights. If the Commission finds a violation, it prepares
a preliminary report and list of recommendations for how the State can repair the violation
and prevent its reoccurrence. The State has three months to show it will
comply with the recommendations; otherwise, the Commission either publishes the merits
report or refers the case to the Inter-American Court. The Commission can refer a case to the Court
only if the State has accepted its jurisdiction, and after considering the opinion of the victim
and petitioner, the seriousness of the violation, and the relevance of the case to the Inter-American
jurisprudence and the national legal systems. The Court will issue judgments on the admissibility,
merits and reparations, and may hold its own hearings. After a decision on the merits, the parties
report on compliance with the recommendations. Petitioners should maintain a relationship
with the victim and with local organizations that can provide information and help negotiate
and advocate for State compliance.
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