Inter-American system of human rights protection Essay

Human Rights are certain inherent, inalienable, immutable, inviolate freedoms and rights of man which no one can take away. These include the right to life, liberty, equality and dignity. The United States of America recognizing these rights established the Inter American system of Human Rights by adopting the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights. Pursuant to the adoption of these instruments the Inter American Commission on Human Rights and the Inter American Court of Human Rights were established to promote and protect Human Rights of individuals. PART A 1. It is pertinent to note that the Inter American Commission on Human Rights primarily seeks to promote consciousness about Human Rights amongst the people of the country. Its functions mainly include receiving complaints, analyzing and investigating them. It has powers of observation and collection of data regarding Human Rights violations in the member States. It can also visit on site and conduct seminars and meetings to promote awareness regarding Human Rights. When a complaint is referred to the Commission, it can after conducting its investigation and analysis publish a report and send it to the State. This report is recommendatory in nature and not mandatory. Hence the Commission can only recommend that the State take due notice of the human rights violations and take appropriate reparatory measures. In the alternative, the Commission can seek opinion from the Inter American Court of Human Rights. So also, in the present case, the Commission has no powers to enforce the law laid down by the State of Colorado but can only request the State to take precautionary measures so as to ensure that human rights are not infringed upon. 2. With respect to the second question, it is seen that as per Article 2 of the Statute of the Inter American Court of Human Rights, the Court has adjudicatory jurisdiction vis a vis a human rights violation brought before it by the Commission or any Member State of the Organization of American States. The said Article refers to Articles 61-63 of the American convention on Human Rights which clearly state that the Court can order the State to allow the human being to enjoy his human right and also order for either monetary or non monetary compensation for the injury so caused. Such an order passed by the American Court would be binding on the State. The provision further clarifies that in case an act or omission on the part of the State would cause irreparable loss to the person, the Commission can take such provisional measures to ensure that the irreparable loss is not caused. It would thus transpire that in the present case, the Inter American Court of Human Rights can enforce the law requiring the Colorado State police to arrest an individual disobeying the restraining order. 3. In the present case various provisions of the various human rights enactments are violated. The Commission can primarily seek to apply Articles 1, 5, 6, 9, 18 & 24 of the American Declaration of the Rights and Duties of Man. Article 1 of the American Declaration states that all persons have equal right to life, liberty, and personal security. Article 5 & 6 deal with a person’s right to protection of self as well as family. Article 9 talks about a person’s right to inviolability of home while 18 & 24 talks of fair trial and the right to approach the court for remedy. A brief reading of the petition tells us how each of these rights have been violated by omission to act on the part of the State. These clauses are applicable even if the United States have not ratified this Declaration. Further Article 11 of the American Convention on Human Rights which deals with a persons right to protect his honor and home and also gives him the right to seek judicial remedy in case of infringement is another provision that the Commission can consider and apply to this particular case. According to the Inter-American Convention on Forced Disappearance of Persons, a duty is laid on the State to punish those persons or their accomplices who commit the crime of forced disappearance of others. This clause has been violated by the husband of the petitioner who allegedly kidnapped their daughters and the police department can be held liable as they stood mute spectators to the whole thing. Article 7 of the Convention of Belem do Para (the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women) condemns all forms of violence against women and seeks to punish such persons who have committed such crimes by enacting proper laws and proper investigation. The Convention also requires that the State should enact and adopt such laws which will help refrain a person from committing such acts of harassment and also ensure that persons who are victims of such violence are given timely and proper hearing. This is a right guaranteed to all women and more so to women who are victims of domestic violence. The police in this particular case having full knowledge of the fact that the petitioner was a victim of domestic violence chose to ignore her pleas and thereby ignore this provision. 4. Prior to considering the kind of jurisdiction that the Inter American Court of Human Rights would have in this present case, it is necessary to list the basic kinds of jurisdiction available to the Court in general. Jurisdiction of the Inter American Court is broadly classified into– Provisional, Advisory and Adjudicatory or contentious Jurisdiction. In provisional jurisdiction, the Court has the power to act in situations that are grave and urgent and require immediate intervention without which grave harm shall be caused to the victim (Buergenthal, 1982, p.241). In Advisory Jurisdiction the Court can give its opinion on the various provisions of the Convention as well as other treaties and also opinionate on the compatibility of the domestic law with any treaty (Buergenthal, 1982, p. 242). In order to avail the adjudicatory or contentious jurisdiction is concerned, it is necessary that the member States subject themselves to the jurisdiction of the Inter American Court (Pasqualucci, 2003, p. 88). It is also necessary for the Convention or treaty in question to grant the jurisdiction to the Court. An illustration to explain this point would be that the Inter American Convention on the Prevention, Punishment and Eradication of Violence Against Women very clearly states that the Commission has only advisory jurisdiction and no contentious jurisdiction in respect of complaints filed under its provisions (Pasqualucci, 2003, p. 91). The jurisdiction clause also states that the Inter American Court cannot naturally assume the role of an appellate authority. It cannot make right any wrong decision of the national courts. However, if there is a gross violation of the human rights enshrined in any treaty and if this gross violation were to cause irreparable harm to the individual, then the Inter American Court may interfere and record that the proper procedures as laid down in the treaties were not followed. In the present case, the United States by virtue of having ratified the American Convention, has given people the individual right to approach the Commission for violation of human rights. However, this jurisdiction in advisory in nature and not adjudicatory as it has not yet subjected itself to the jurisdiction of the Inter American Court. Thus any person through the Commission can seek the advisory jurisdiction of the Inter American Court even if the Member State has not subjected itself to the jurisdiction of the Court (Buergenthal, 1982, p. 244) 5. Procedurally, the Commission on receiving a petition shall initially register it and see if it has complied with all the rules of procedure and if the petition does not comply then the Commission will send it back to the petitioner so as to ensure compliance. Once the petition conforms to the rules then the Commission shall then send relevant parts of the petition to the State for its response, for which the State is given two months time. However, in serious and urgent cases, the State is asked to respond immediately. This is done to ensure the veracity of the petition and to ensure that the petition still subsists. The commission may also require the State to present its observations on the admissibility and merits of the case at hand. Once the observations of the parties are submitted or the time period given to each party has lapsed, the Commission will verify the merits of the case based on the facts before it and decide whether to admit it or reject it. In the present case too the Commission should first satisfy itself as to the compliance of all the rules of procedure and then seek observations from the State and other parties concerned. 6. The Commission will then confirm as to whether the petitioner has exhausted all the available domestic remedies. However, in cases where the domestic legislation does not provide for due process of law or where the petitioner is refrained from pursuing domestic remedies then the above provision does not hold true. The Commission has to ensure that the petition before it has been filed within six months of receipt of the decision of the domestic remedy. In this case the petitioner has exhausted all the possible domestic remedies and has not been successful in the same. The Supreme Court of the United States has also rejected the petition of the petitioner and has passed its final judgment in the matter. The Commission should then decide on the admissibility of the petition by setting up a working group. In the present case, it is seen that the Commission has held the petition admissible. When the Commission finds a petition admissible it creates an admissibility report that is made public and the case is then registered and the parties are notified of the same. After the case has been registered, the Commission invites additional observations in writing from all parties concerned. A time limit for submitting these observations is set by the Commission. In some cases, the Commission can also convene a hearing to enable the parties to present their points of view. In this case too, the Commission has opened the case and the parties are informed about the same. Additional observations have been requested from the parties and the Commission has in fact convened a hearing. In this case, the United States government has responded by stating that it has taken proper and adequate measures to combat domestic violence and that the remedies in the domestic judicial system are adequate to tackle the problem. In the hearing the Petitioner will be able to present her case before the Commission in person. After hearing the case of both sides and also after going through the written observations submitted by both parties, the Commission will deliberate on the merits of the case and formulate a report. 7. The first document that the Commission publishes in response to a case is the admissibility report wherein it admits the case and registers it. This report has already been published by the Commission and has been sent to the parties concerned. The Commission has then convened a hearing on the issue and will deliberate on the case after the hearing. The next important document that the Commission publishes is the Preliminary report on the merits of the case. This report contains the preliminary observations and the recommendations of the Commission. 8. If the Commission feels that there is no violation, then the report is published and sent immediately to all parties concerned. In case the Commission feels that some provisions have indeed been violated then a preliminary report is made and sent to the State along with the recommendations proposed by the Commission. 9. In case the State complies with the recommendations given in the preliminary report, the Commission will notify the petitioner as to the same. However, in cases where the State does not comply with the same, the Commission can approach the Inter American Court for adjudication. However, in the present case as the United States has not subjected itself to the jurisdiction of the Court, the said remedy is not available to the Commission in case of non compliance. In the present case, the Commission should deliberate on the observations sent by the parties, investigate on site to determine the veracity of the facts, interview the various concerned individuals and then send its preliminary report to the State along with its recommendations. If the State fails to comply with the same within three months of it being sent, the Commission then has to issue a final report that contains its opinion, final conclusions and final recommendations. The Commission should then send it across to all parties concerned and make a note of it in its Annual report. The Commission should take active steps in terms of follow up to evaluate the actual compliance of the recommendations by the parties. 10. In this present case, if the Commission publishes its preliminary report wherein it holds that there has been violation of human rights and recommends certain precautionary measures to the State then it would mean that the petition has succeeded partially. By partially, it is meant that the violation has been recognized by the Commission. However, for the petition to succeed completely, the State has to comply with the recommendations given by the Commission. If the State refuses to accept the recommendations of the Commission, then the petition would have failed as the petitioner has not achieved any major reliefs but has only obtained a theoretical order that envisages the ideal situation vis a vis human rights.