Author: Yongho Kim 김용호

The Inter-American System
JU, SL

I. Background and Institutions

The Inter-American System of human rights consists principally of the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, the Council, and the General Secretariat. It is guided by the American Declaration of the Rights and Duties of Man (adopted 1948) and the American Convention on Human Rights (adopted 1969). This section deals primarily with two of the system’s major institutions: The Inter-American Commission and Court. In terms of the rights recognized in the American Declaration and Charter, it is noteworthy that: (1) in addition to rights it outlines duties of the citizen; (2) 21 out of 26 of the rights outlined in the Convention are very similar to the ICCPR; (3) it contains a general provision [Article 26] to compensate for its lack of having separate treaties for economic, social, and cultural rights; (4) for the setting of standards it includes the Inter-American Council for Education, Science, and Culture, as well as an Economic and Social Council, and; (5) it obliges parties to adopt measures that reflect their ‘degree of development.’ Turning to the Commission and the Court, it is important to note that: (1) the Commission only ‘takes cognizance’ of individual cases due to its concern with the general condition of human rights in a country; (2) the Court may go beyond the Convention to issue rulings on any treaty pertaining to the protection of HR in the American states, and; (3) there are no legally binding means of enforcement for Court rulings, although it does rely on political pressure from member states of the OAS. It is also important to consider that two of the distinctive features of the Inter-American system are its frequent engagement of ‘gross’ violations of HR and the region’s lack of political cohesion. Finally, commenting the system’s present state of affairs, Tom Farer highlights its gradual shift from country reports to court cases (though positing the need for a continuance of reports) and the new challenges presented by a greater number of democratic states in OAS.

(1) How does the Inter-American system’s method of enforcement impact its efficacy?

II. The Court in Action

The text proceeds to describe one of the Court’s most commonly cited cases-the Velásquez Rodríguez case. While the details of the case-involving the disappearance and alleged abduction/murder of a man from Honduras-are important, the precedents set by it are even more crucial to consider. Essentially, the ruling on this case established that it is acceptable that “circumstantial evidence, indicia, and presumptions may be considered” in the absence of direct evidence “so long as they lead to conclusions consistent with the facts” and that there is evidence that information regarding the case has been concealed or destroyed.(884) The editors also draw attention to: (1) the length of the proceedings (from 1981 to 1988); (2) the active involvement of the Commission arguing on behalf of the individual seeking relief, and; (3) the participants ranging from witnesses to NGOs.(887)

(2) In its court decision, the Inter-American Court of Human Rights states the difference between international protection of human rights and criminal justice (see p.884). Considering the power provided to the Court by Article 63, do you agree with the Courts ruling? What would you have done differently?

III. Background on the Human Rights of Political Participation

The third section develops the fundamental theme of democracy within the field of human rights. Democracy is argued as having established itself as a global norm, however varying degrees of democracy exist, as signified in the distinction between the classical, more ‘minimal’ democracy and the more recent social, ‘positive’ democracies such as the modern welfare state. These different forms of democracy have become even more visible since the end of the Cold War and the entering into a supposedly ‘new’ era of globalization. Consequently, the relationship between democracy and human rights has intensified over the years, and one needs to ask the question whether HR necessarily require a democratic government and vice versa. Henry Steiner examines in 1988 the right to political participation, as stated in Article 25 of the ICCPR and Article 21 of the UDHR. He points out the lack of specificity in these articles, due to the by now well-known fact that a more detailed norm would have put “at risk the goal of achieving broad support for the human rights instruments as a whole.” (891) This vagueness can be found in the differentiation between the ‘elections’ and ‘take part’ clauses. While the ‘elections’ clause is fairly well defined and violations are ‘measurable’ (e.g. torture), the ‘take part’ clause is vague and thus leaves room for wide array of interpretations. Furthermore, he points out that electoral participation is seen by some as no longer sufficient in order to realize the democratic ideals; a more continual ‘taking part’ in politics is needed, as opposed to the periodic, one-time majority ‘elections.’ One form of greater political participation would be the decentralization of authority and greater involvement of citizens on a local level with the ultimate goal of ‘self-government’ and ‘self-realization.’ Consequently, he proposes that the right to political participation should be looked upon as a programmatic ‘positive’ right similar to the notion of social and economic rights. (p.899) He concludes by stressing the dormant potential towards a wider practice of political participation contained within the article, such as was we have seen through changing interpretations of the US Constitution and its Equal Protection Clause.

(3) Considering Steiner’s notion of a decentralized state based on popular local participation, what do you think the effect of this increase in ‘taking part’ on a local scale would mean for the human rights movements on a national or global scale?