---

ENHANCING CANADA'S ROLE IN THE OAS:

CANADIAN ADHERENCE TO THE AMERICAN CONVENTION ON HUMAN RIGHTS

 Report of the Standing Senate Committee on Human Rights 

Chair: The Honourable Shirley Maheu
Vice-Chair: The Honourable Eileen Rossiter

May 2003

---

MEMBERSHIP 

The Honourable Shirley Maheu, Chair 
The Honourable Eileen Rossiter, Vice-Chair

and

The Honourable Senators:

Gérald A. Beaudoin
* Sharon Carstairs, P.C. (or Fernand Robichaud, P.C.)
Maria Chaput
Marisa Ferretti-Barth
Mobina Jaffer
Laurier LaPierre
* John Lynch-Staunton (or Noël Kinsella)
Vivienne Poy
Jean-Claude Rivest

* Ex-officio members

In addition, the Honourable Senators Raynell Andreychuk, Ethel M. Cochrane, Joan Fraser, Elizabeth Hubley, Serge Joyal, Noël A. Kinsella, Landon Pearson, Nicholas W. Taylor and the Very Reverend Lois Wilson were members of the Committee at various times during this study or participated in its work.

Staff from the Parliamentary Research Branch of the Library of Parliament:
David Goetz, Research Officer
Carol Hilling, Research Officer

Line Gravel
Clerk of the Committee

---

  ORDER OF REFERENCE  

Extract from the Journals of the Senate of Thursday, November 21, 2002: 

The Honourable Senator Fraser for the Honourable Senator Maheu moved, seconded by the Honourable Senator Murray, P.C.:

That the Standing Senate Committee on Human Rights be authorized to examine and report upon Canada's possible adherence to the American Convention on Human Rights;

That the documents and evidence received by the Committee during its consideration of these same matters in the First Session of the Thirty-seventh Parliament be referred to the Committee; and

That the Committee table its final report no later than June 27, 2003.

The question being put on the motion, it was adopted. 

Paul C. Bélisle
Clerk of the Senate

---

TABLE OF CONTENTS  

CHAIR'S FOREWORD

SUMMARY OF RECOMMENDATIONS

I. INTRODUCTION

II. HISTORY

    A. Canada's Links with the Americas
    B. Canada's entry into the OAS

III. THE HUMAN RIGHTS SYSTEM

    A. Legal instruments
        1. Inter-American Declaration of the Rights and Duties of Man
        2. American Convention on Human Rights and Additional Protocols
            a. Additional Protocol to the American Convention on Human Rights in the Area of Economic,
            Social and Cultural Rights
            b. Protocol to the American Convention on Human Rights to Abolish the Death Penalty
        3. Other Inter-American Conventions
            a. Inter-American Convention to Prevent and Punish Torture
            b. Inter-American Convention on Forced Disappearance of Persons
            c. Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women
            d. Inter-American Convention on the Elimination of all Forms of Discrimination Against Persons with Disabilities

    B. Monitoring Bodies
        1. The Inter-American Commission on Human Rights
            a. History
            b. Functions
        2. The Inter-American Court of Human Rights
            a. Advisory Jurisdiction
            b. Contentious Jurisdiction

    C. Mechanisms for Protection and Redress
        1. The Individual Petition Process Before the Inter-American Commission
            a. Filing a Petition
            b. Friendly Settlement Procedure
            c. Recommendations or Referral of the Case to the Court
        2. Reports of the Inter-American Commission
            a. State Reports
            b. The Annual Report of the Inter-American Commission
            c. Country Reports
        3. Recourse to the Inter-American Court
            a. Contentious Cases
            b. Enforcement of the Court's Decisions
            c. Requests for Advisory Opinions

IV. DISCUSSION OF ISSUES RAISED WITH THE COMMITTEE

    A. Government Concerns

    B. Concerns of Non-Governmental Witnesses
        1. The Right to Life
        2. Article 13: Freedom of Expression and Prohibition of Prior Censorship
        3. Article 14: Right of Reply
        4. Property Rights
        5. Article 22(5): Expulsion of Nationals
        6. Article 24: Equality Rights
        7. Article 28: Federal Clause

    C. Discussion of Interpretive Declarations and Reservations

    D. Advantages to Ratification
        1. Strengthening the Inter-American system
        2. Increased Protection of Human Rights for Canadians
        3. Increased Protection of Women's Rights in the Americas
        4. Stimulating United States and Caribbean participation
        5. Greater Precision of the American Convention

V. THE COMMITTEE'S CONCLUSIONS AND RECOMMENDATIONS

APPENDIX A: WITNESSES

APPENDIX B: SELECTED DOCUMENTS PREPARED FOR OR RECEIVED BY THE COMMITTEE DURING THIS STUDY

APPENDIX C: SIGNATURES AND CURRENT STATUS OF RATIFICATIONS

---

CHAIR'S FOREWORD

In November 2002, the Senate Standing Committee on Human Rights received a second mandate to study and report on Canada's possible adherence to the American Convention on Human Rights. The role of the Committee was to review Canadian participation in the Inter-American system for the protection of human rights and make recommendations on whether or not Canada should ratify the American Convention on Human Rights.

Canada has been a member of the Organization of American States since January of 1990. We have developed strong relationships with the Americas and we have been active in promoting human rights issues in the region. However, Canada has not yet ratified the principal treaty with respect to the protection of human rights in the Americas: the American Convention on Human Rights. Many wonder why Canada is so reluctant to ratify the Convention and therefore be fully part of the OAS Human Rights System.

Over the course of our hearings, we have found that there are in fact no compelling reasons for Canada not to ratify the Convention. While legitimate concerns were raised before the Committee, both by government and non-government witnesses; concerning the compatibility of Canadian law with some provisions of the Convention, none of these concerns constitute insurmountable obstacles. Witnesses, including legal experts, human rights groups, representatives from NGOs, all have suggested solutions to overcome the obstacles highlighted by the Government of Canada. Support for Canadian ratification of the Convention, with at least one reservation and some statements of understanding has been unanimous among witnesses.

The Committee has heard from a variety of experts. During its first mandate, it traveled to the seat of the Inter-American Court of Human Rights, in San José, Costa Rica. Members of the Committee met with the President and judges of the Inter-American Court and were able to witness first hand how the Court functions by attending hearings. While in Costa Rica, Committee members also had an opportunity to meet with the Inter-American Commission on Human Rights. Many of the concerns raised by government officials before the Committee concerning the functioning of the Commission have been and continue to be addressed by the Commission while Canada sits on the sidelines because it is not yet a full participant in the human rights system. Committee members also met with the Ombudsman for Costa Rica, the Inter-American Institute for Human Rights, United Nations bodies and representatives from many non-governmental human rights organizations. All have expressed their hope that Canada will ratify the American Convention on Human Rights so as to play an even greater role than the one it currently plays in the promotion and protection of human rights in the hemisphere.

In short, through its study, the Committee has found that the Inter-American Commission and Court would like to see Canada ratify the Convention. Civil society in Canada would like to see our government ratify the Convention. The Committee has been told that the Canadian provinces have concerns but none of them agreed to share them with the Committee. Witnesses, including legal experts, have suggested solutions to address specific issues of compatibility between Canadian domestic law and the Convention. 

On behalf of all Committee members, I would like to thank Senator Raynell Andreychuk for initiating this study. 

I would also like to thank Senator Gerald A. Beaudoin, Senator Ethel M. Cochrane, Senator Joan Fraser, Senator Marisa Ferretti Barth, Senator Mobina S.B. Jaffer, Senator Noël A. Kinsella, Senator Laurier L. Lapierre, Senator Vivienne Poy, Senator Eileen Rossiter, Senator Nick Taylor, and the Right Reverend Lois Wilson for their participation and contribution to this study.

Finally, I would like to thank our staff whose work made this study possible. Mrs. Carol Hilling, our analyst from the Library of Parliament, has been an exceptional support from the beginning, as well as Mrs. Line Gravel, our clerk. I would also like to thank the staff from the previous session, Mr. David S. Goetz and Mr. Till Heyde.

Shirley Maheu
Chair

---

SUMMARY OF RECOMMENDATIONS

1. The Committee recommends that Canada take all necessary action to ratify the American Convention on Human Rights, with a view to achieving this goal by July 18, 2008, which is the thirtieth anniversary of the entry into force of the Convention.

2. The Committee further recommends that, upon ratification of the Convention, Canada recognize the jurisdiction of the Inter-American Court of Human Rights on all matters relating to the interpretation or application of the Convention.

3. Given the concerns expressed by government officials and representatives of various sectors of civil society that certain provisions of the Convention may appear problematic in the light of contemporary Canadian domestic law, whether federal, provincial or territorial, the Committee recommends that the federal-provincial-territorial Continuing Committee of Officials on Human Rights identify specific provisions of the American Convention on Human Rights that raise concerns and inform the Canadian public about them so as to foster debate and a search for solutions.

4. The Committee recommends that the Government of Canada consider making the necessary interpretive declarations and reservations to address any concerns raised, in particular to maintain the status quo of abortion under Canadian law.

5. The Committee recommends that as the Government of Canada takes appropriate steps towards the ratification of the Convention, it should actively engage in promoting the Convention and the whole Inter-American system for the protection of human rights in Canada.

---

I. INTRODUCTION  

The Standing Senate Committee on Human Rights was authorized by the Senate on May 10, 2001, to examine issues relating to human rights, and inter alia, to “review the machinery of government dealing with Canada’s international and national human rights obligations”[1].  In its Report of December 2002, Promises to Keep: Implementing Canada’s Human Rights Obligations, this Committee identified several issues for further study, including the possibility of Canada acceding to the American Convention on Human Rights (hereinafter the “American Convention”).  On February 2, 2002, the Committee was authorized to study the status of Canada's adherence to international human rights instruments and the process whereby Canada enters into, implements, and reports on such agreements.  It began this study by looking at the American Convention on Human Rights.  Following the prorogation of Parliament and the Throne Speech of September 30, 2002, the Committee received a new mandate, on November 21, 2002, to study the possibility of Canada’s adherence to the American Convention on Human Rights.

In the Spring of 2002, the Committee held a number of hearings in order to “engage the public, to hear the views of relevant groups, and to facilitate decisions at the political level”[2]. In addition, in September 2002, the Committee travelled to the seat of the Inter-American Court of Human Rights where it met not only the members of the Court but also the members of the Inter-American Commission on Human Rights, as well as various human rights experts and representatives of non-governmental organizations who have practical knowledge of the American Convention and the Inter-American system for the protection of human rights. Between November 2002 and March 2003, the Committee continued to hold hearings to complete its study of the American Convention. In April 2003, the Chair and one member of the Committee took part in a round-table discussion on the American Convention organized by the Ligue des droits et libertés du Saguenay-Lac-Saint-Jean.

Canada has been a member of the Organization of American States (the OAS, or the “Organization”) since January 8, 1990.  Although some obligations with respect to human rights arose from the ratification of the OAS Charter, several witnesses before the Committee have stressed that the government should be encouraged to ratify the American Convention in order to participate more fully in the OAS human rights system. 

When the Hon. Lloyd Axworthy, then Minister of Foreign Affairs, was asked in the House of Commons, in 1999, why Canada had not yet ratified the American Convention, his reply was as follows:

Before Canada can ratify a human rights convention, we must ensure that we are in a position to live up to the commitments we would undertake by ratifying it. Since 1991, consultations have been conducted with federal, provincial and territorial officials to assess compliance of federal and provincial legislation with the convention. The review process has been complicated by the vague, imprecise and outdated language used in the convention. Many provisions in the Convention are ambiguous or contain concepts which are unknown or problematic in Canadian law. More importantly, many provisions of the Convention are inconsistent with other international human rights norms, making it difficult for us to comply with both the ACHR and those norms.

By way of example, the ACHR would preclude prior censorship, and therefore would conflict with Canada's international obligations to suppress hate propaganda and child pornography. The ACHR would preclude the extradition of nationals, and therefore would conflict with Canada's extradition obligations and our obligations to co-operate with international criminal tribunals or the future international criminal court. Serious concerns have been raised that the unusual wording of the ACHR provision on the right to life may create a conflict with charter rights. The ACHR contains a right of reply to inaccurate or offensive statements in the media, which is not known in our law and may conflict with charter rights. The ACHR guarantees equality before the law but does not contemplate affirmative action.

In order to ratify the ACHR at present, a very large number of reservations and statements of understanding, SOUs, would be required. However, Canada's position with respect to reservations to human rights treaties is that reservations should be few in number and limited in scope. We are concerned that ratifying the ACHR with a large number of reservations and SOUs would be contrary to this position and would undermine our efforts to dissuade other states from ratifying human rights treaties subject to sweeping reservations.

Until such time as the concerns with respect to reservations and SOUs expressed by both levels of government have been satisfactorily dealt with, Canada will not be in position to ratify the ACHR.

Canadians are already entitled to bring petitions to the Inter-American Commission on Human Rights alleging human rights violations. Therefore, even without ratification of the ACHR, Canadians already benefit fully from the inter-American human rights system. [3]

The issue of ratification of the American Convention was addressed again when the Government of Canada responded to the June 2001 Report of the Standing Committee of Foreign Affairs and International Trade entitled Balance, Transparency and Engagement after the Quebec Summit.  This Report contained the following recommendation concerning the American Convention: 

Given the importance of the Inter-American Human Rights System of the American Convention on Human Rights, the Committee recommends that the Government of Canada investigate mechanisms such as a Memorandum of Understanding or a Reservation, to allow it to ratify the Convention in the near future.”[4] 

            The Government of Canada replied that: 

Options for accession to the American Convention on Human Rights have been seriously examined on a regular basis since 1990 through the federal, provincial and territorial consultation process, which is part of the bi-annual meetings of the Continuing Committee of Officials on Human Rights.  The question of accession to the Convention was most recently discussed with the provincial and territorial governments on May 24, 2001, and is expected to be on the agenda again at the upcoming meeting in the fall.

In their consideration of the Convention to date, the Government of Canada and the provincial and territorial governments have identified a number of provisions that are inconsistent or otherwise problematic in light of Canadian laws and practices in federal, provincial and territorial jurisdictions.  Such issues could, in principle, be addressed by having Canada make reservations and statements of understanding at the time of its accession to the Convention.  However, it should be noted that the number of reservations or statements of understanding that would be necessary to address federal, provincial and territorial concerns is higher than considered necessary by the NGO community.[5]  

The testimony before the Committee indicated that the concerns remain the same and that little, if any, progress has been made in working towards solutions in the three years since Mr. Axworthy’s statement.

This Report identifies recommendations with respect to the American Convention on Human Rights.  It should be noted, however, that there are other Inter-American Conventions and Protocols that are open to ratification by Canada.  

---

II. HISTORY

A. Canada’s Links with the Americas  

On April 30, 1948, twenty Latin American countries[6] and the United States ratified the Charter of the OAS.  The Charter established a new regional organization, which was the result of discussions and negotiations that began in 1826, when Simón Bolívar convened the Congress of Panama with the idea of creating an association of states in the hemisphere.  

In 1890, the First International Conference of American States, held in Washington, D.C., established the International Union of American Republics and its secretariat, the Commercial Bureau of the American Republics – the forerunner of the OAS.  At that time, Canada was still dependent on Great Britain for its international relations and was not invited to participate in this Conference[7].  

In 1910, this organization became the Pan American Union (PAU). Initially, the United States was interested in Canada’s membership and even reserved it a chair at the Union’s Headquarters, but there was little Canadian interest in Latin America.  Some even feared that the United States had ulterior motives[8].  

Canada was never formally invited to join the PAU, although the issue was raised on several occasions.  Some Latin American States such as Ecuador, Mexico and Chile supported Canada’s membership.  Others were less than enthusiastic at the prospect of having another predominantly English-speaking country join the Union, and the United States soon became concerned about “British meddling in their own backyard”[9], and no longer supported Canadian membership.  

World War II changed Canada’s attitude as closer ties with Latin America began to look advantageous both from the economic and security perspective.  In 1940, Canada began to establish diplomatic relations with Latin American States, first with Argentina and Brazil and soon thereafter with Chile and Mexico.  In December of 1941, Canada announced its intention to attend the next Meeting of Foreign Ministers of the PAU in Rio de Janeiro, and informed the Brazilian authorities of its willingness to join the Union if it were formally invited.  However, faced with strong opposition from the United States, Canada ultimately did not attend the Meeting.  

After the war, Canada concentrated its energies and interest on the newly created United Nations and then NATO.  It did not participate in Inter-American Conference that led to the creation of the OAS.  

Canada became a permanent observer at the OAS in 1972.  At that time, it also became a party to the Agreement Establishing the Inter-American Development Bank[10].  However, although the issue of full membership in the OAS was raised periodically, it was generally met with skepticism about any advantages for Canada.  Parliament considered the possibility of Canadian membership in the Organization, most notably in 1981-1982 when the House of Commons Sub-Committee on Canada’s Relations with Latin America and the Caribbean, after an exhaustive study of the issues involved, produced a report in favor of Canada seeking admission to the OAS.[11]  However, the Falkland Islands/Malvinas conflict in 1982, and the 1983 invasion of Grenada by the US caused the long-standing Canadian concern that joining the OAS was not in the best interest of Canada to resurface.  With respect to the Falklands/Malvinas War, Canada sided unequivocally with Great Britain and imposed economic sanctions on Argentina, actions it could not have taken had it been a member of the OAS.  The invasion of Grenada by the US reminded Canada that over the years the OAS had been rather ineffective in preventing conflicts and that the United States was playing a dominant role in the Organization.  Given that the 2/3 majority rule at the OAS required compliance by members, there was serious concern that joining the OAS would “end up merely rubber-stamping US foreign policy forays in the region”[12].  Then, in the summer of 1989, the Department of External Affairs recommended that Canada join the OAS.[13]

 

B. Canada’s entry into the OAS

By 1988, there was growing public awareness and interest in Latin America.  In addition, the Prime Minister of Canada, Brian Mulroney, and his then Secretary of State for Foreign Affairs Joe Clark both believed that it was time for Canada to become a full-fledged member of the OAS.  The Mulroney government undertook a review of Canada’s relations with Latin America and developed a policy strategy with, as its key objective, “the development of democracy and the pursuit of economic prosperity within the region.”[14]  Membership in the OAS was seen as a means of allowing Canada to expand its ties with Latin America and to pursue its political and economic interests.  In late 1989, the Canadian government announced its intention to join the OAS and by early January, it had ratified the OAS Charter.

The Charter of the OAS sets out the three objectives of the Organization: the peaceful resolution of conflicts, collective security and economic development.  The Charter also affirmed the States’ commitment to respect fundamental human rights without discrimination.

The strengthening of democracy and economic progress have been at the forefront of the Organization’s priorities.  The Charter was modified four times since its creation, by the Protocol of Buenos Aires, in 1967[15], the Protocol of Cartagena de Indias[16], in 1985, the Protocol of Washington[17], in 1992, and the Protocol of Managua[18], in 1993.  More recently, the OAS adopted a Democratic Charter which illustrates its commitment to strengthen democracy in Latin America.  Under article 2 of the Charter:

The effective exercise of representative democracy is the basis for the rule of law and of the constitutional regimes of the member states of the Organization of American States. Representative democracy is strengthened and deepened by permanent, ethical, and responsible participation of the citizenry within a legal framework conforming to the respective constitutional order.  

Under the terms of article 19, non-democratic governments can be prevented from exercising their rights as OAS members:

An unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, constitutes, while it persists, an insurmountable obstacle to its government’s participation in sessions of the General Assembly, the Meeting of Consultation, the Councils of the Organization, the specialized conferences, the commissions, working groups, and other bodies of the Organization.

When Canada joined the OAS, democratically elected governments had replaced longstanding dictatorships in most countries of the Americas.  One of Canada’s first initiatives was to propose the creation of a Unit for the Promotion of Democracy (UPD), to provide guidance and assistance to OAS member States to strengthen their democratic institutions and processes.[19]  Initially focused on monitoring elections, the UPD now has a much broader range of activities.[20]

Officials who appeared before the Committee suggested that the role played by Canada in this instance illustrates the fact that non-ratification of the Convention does not impede participation in the system[21].  They added that Canada’s role is continuing through the promotion of recent instruments such as the Proposed Inter-American Declaration on the Right of Indigenous Peoples.

Although Canada has not ratified the American Convention on Human Rights, it is a party to several Inter-American legal instruments including:

·        The Inter-American Convention on the Granting of Political Rights to Women[22], adopted in 1948, ratified by Canada in 1991.

·        The Inter-American Convention on the Granting on Civil Rights to Women[23], adopted in 1948, ratified by Canada in 1991.

·        The Agreement Establishing the Inter-American Institute for Global Change Research,[24] accepted by Canada in 1993.

·        The Inter-American Convention on Serving Criminal Sentences Abroad[25], adopted in 1994, ratified by Canada in 1995.

·        The Inter-American Convention on Mutual Assistance in Criminal Matters[26], adopted in 1992, ratified by Canada in 1996, and

·        The Inter-American Convention Against Corruption[27], adopted in 1996, ratified by Canada in 1996.

In addition, Canada signed, but has not yet ratified the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials[28], adopted in 1997.  Canada has also ratified the Inter-American Convention on Transparency in Conventional Weapons Acquisitions[29], which came into force on November 22, 2002.

---

III. THE HUMAN RIGHTS SYSTEM

A. Legal instruments

The Inter-American system for the protection of human rights, which was initially based on the OAS Charter, currently consists of one legally binding Declaration and several conventions and protocols, some of which were adopted after Canada joined the OAS.  A Commission and a Court oversee the implementation of these legal instruments.  The Inter-American system, which was modelled on the European system for the protection of human rights, has unique characteristics that reflect particular needs, as should any regional system.  Although the present study focuses on the American Convention on Human Rights, other Inter-American human rights treaties are open to Canada’s ratification.

    

    1 Inter-American Declaration of the Rights and Duties of Man  

The OAS began to develop its own regional system for the protection of human rights in 1948, when member States of the newly created Organization adopted several resolutions pertaining to human rights[30].  One of these resolutions, the American Declaration of the Rights and Duties of Man[31] (hereinafter the American Declaration), was to become the cornerstone of the Inter-American system for the protection of human rights.  Originally adopted as a statement of intent because the Member States could not agree on a Convention[32], the American Declaration gradually acquired a unique legal status through the creation and subsequent development of the Inter-American Commission on Human Rights. By the time Canada joined the OAS, the Inter-American Court of Human Rights had confirmed that the American Declaration was a source of legal obligations for all the member States of the OAS.[33]

It may be noted here that the United States rejects the legal standing of the American Declaration.  The most recent example is its response to the conclusions of the Inter-American Commission in the Case of Rafael Ferrer-Mazorra et al.[34], finding the US to be in violation of several provisions of the American Declaration as a result of the treatment of Cuban nationals.  The official response from the United States stated that:

With regard to each implication or direct assertion in the Commission’s report that the American Declaration of the Rights and Duties of Man itself accords rights or imposes duties, some of which the United States has supposedly violated, the United States reminds the Commission that the Declaration is no more than a recommendation to the American States.  Accordingly, the Declaration does not create legally binding obligations and therefore cannot be “violated.”[35] 

This response was in keeping with the long-standing position of the United States with respect to the binding nature of the American Declaration.  In 1948, it was opposed to the adoption of a legally binding human rights instrument[36].  It repeated its objections in 1989, before the Inter-American Court of Human Rights[37].  However, it would be difficult for Canada to adhere to this position since, as mentioned earlier, it became a member of the OAS after the advisory opinion of the Inter-American Court concerning the legally binding character of the American Declaration.

Thus, ratification of the OAS Charter triggered human rights obligations under the American Declaration and, as will be developed further below, it automatically subjected Canada to the jurisdiction of the Inter-American Commission on Human Rights without any requirement for an official acceptance of this jurisdiction.

 

    2. American Convention on Human Rights and Additional Protocols  

The American Convention on Human Rights (hereinafter the American Convention) was drafted roughly at the same time as the International Covenants on Human Rights.  Moreover, when the Council of the OAS sent the Draft American Convention to the Inter-American Commission on Human Rights for study, in 1966, the Commission decided to “take into special consideration the experience of the European countries which approved the European Convention on Human Rights and Basic Freedoms, and the discussions held during the preparation of the draft United Nations Covenants on Human Rights”.[38]  Although witnesses before this Committee argued that some of the language of the American Convention is foreign to a Canadian understanding of the law[39], the language used in many of the Convention’s provisions is very similar to the language of the European Convention.  There are many similarities as well with the provisions of the International Covenant on Civil and Political Rights, which was drafted with Canada’s participation.

One unique characteristic of the American Convention is that the right of individuals to bring alleged violations by States Parties to the Convention of the rights it protects to the attention of the Commission can be exercised without any formal acceptance of the Commission’s jurisdiction.[40]  There are two additional Protocols to the American Convention.

 

    a. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights

Also known as the Protocol of San Salvador, it was adopted in 1998 to give effect to the provisions of article 26 of the American Convention.  It entered into force on November 16, 1999.  Article 26 of the American Convention expresses the general commitment of State Parties to adopt measures with a view to the full realization of economic, social and cultural rights. Ratification of the Protocol of San Salvador is only open to States that have ratified the American Convention.   

The Protocol can be seen as part of what is commonly referred to as “soft law”.  Rather than assuming immediate obligations States undertake to implement their obligations progressively:

The States Parties to this Additional Protocol to the American Convention on Human Rights undertake to adopt the necessary measures, both domestically and through international cooperation, especially economic and technical, to the extent allowed by their available resources, and taking into account their degree of development, for the purpose of achieving progressively and pursuant to their internal legislations, the full observance of the rights recognized in this Protocol.[41]

Progressive implementation is, nonetheless, an obligation.  The Inter-American Court of Human Rights was recently seized of a case asking for determination of the scope and content of the duties of States with respect to the progressive implementation of social, economic and cultural rights. While the Committee was on its fact-finding mission in Costa Rica, it had the opportunity to visit the Inter-American Court of Human Rights on the day of the hearing of this case[42].  The alleged victims argued that a decision, by the Government of Peru, to modify pension payments which resulted in a de facto reduction of the payments, violated, among others, their right to the progressive development of their economic, social and cultural rights under article 26 of the American Convention, as interpreted in the light of the Protocol of San Salvador.  However, in its judgment of February 28, 2003, the Court did not answer this question.  It held that economic, social and cultural rights, that have both an individual and a collective dimension, must be assessed in reference to the general situation prevailing in the country.  In the Court’s opinion, the five pensioners were a very small group and were not necessarily representative of a general situation.[43]  

Some provisions of the Protocol are of immediate application.  Thus, violations of the right to organize and to join unions, national federations of unions or international trade union organizations, protected under article 8(a) of the Protocol of San Salvador, as well as violations of the right to education can be brought to the attention of the Inter-American Commission through the individual petition mechanism[44].  The case can also be referred to the Inter-American Court.

 

    b.  Protocol to the American Convention on Human Rights to Abolish the Death Penalty

This Protocol was adopted on June 8, 1990.  It expands upon article 4 of the American Convention and its ratification is open only to States Parties to the American Convention.  It has been ratified by Brazil, Costa Rica, Ecuador, Nicaragua, Panama, Paraguay, Uruguay and Venezuela.  The Protocol enters into force immediately between the States that have ratified it.  The only reservation allowed at the time of ratification concerns the application of the death penalty in wartime, for certain crimes:

  No reservations may be made to this Protocol. However, at the time of ratification or accession, the States Parties to this instrument may declare that they reserve the right to apply the death penalty in wartime in accordance with international law, for extremely serious crimes of a military nature.[45]

However, this exception must be provided for in domestic law and its application is subject to strict reporting conditions set out in the Protocol.

 

3. Other Inter-American Conventions

The following “stand alone” conventions are open to ratification by Canada whether or not it ratifies the American Convention.  All but one have been adopted since Canada became a member of the OAS but it has not ratified any of them.  

 

    a. Inter-American Convention to Prevent and Punish Torture

The Inter-American Convention to Prevent and Punish Torture (Convention on Torture) expands upon the provisions of article 5 of the American Convention which already prohibit torture and cruel, inhuman or degrading punishment or treatment. It entered into force on February 28, 1987.  It is open to ratification by all the member States of the OAS.  Although Guatemala[46] and Chile[47] had initially made reservations to some of the Convention’s provisions, most of these reservations have since been withdrawn[48].  The Convention on Torture can be invoked before the Inter-American Court of Human Rights to interpret the provisions of article 5 of the American Convention.  The Convention excludes the defence of superior orders as well as any state of emergency or any other kind of public emergency, the suspensions of constitutional guarantees or political instability as justifications for torture.

 

    b. Inter-American Convention on Forced Disappearance of Persons

Adopted on June 9, 1994, the Convention on Forced Disappearance of Persons (Convention on Forced Disappearance) came into force on March 28, 1996.  It addresses an issue that has plagued Latin America for decades.  Violations of the Convention can be brought to the attention of the Inter-American Commission on Human Rights and follow the same process as petitions under the American Convention.  Ratification is not limited to States Parties to the American Convention, but is open to all members of the OAS.  The Convention has been ratified by Argentina, Bolivia, Costa Rica, Guatemala, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela.  Guatemala withdrew the reservation it made at the time of ratification of the Convention concerning the extradition of its nationals.  There are no other reservations.

 

    c. Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women  

Also known as the Convention of Belém do Pará, it was adopted at the same time as the Convention on forced Disappearance.  It condemns any act or conduct “based on gender which causes death or psychological harm or suffering to women, whether in the public or the private sphere.”

The definition of violence under the Convention includes domestic violence in the widest sense, that is to say within any inter-personal relationship and whether or not the perpetrator resides with the victim.  It also includes violence occurring in the community or perpetrated or condoned by the State or its agents, wherever it occurs.  States Parties have specific duties under the Convention to adopt the required legislative measures to prevent and punish all forms of violence against women.

The Convention came into force on March 2, 1995, thirty days after the date of deposit of the second instrument of ratification.  All the parties to the American Convention with the exception of Jamaica have ratified the Convention of Belém do Pará.

 

    d. Inter-American Convention on the Elimination of all Forms of Discrimination Against Persons with Disabilities  

Adopted on June 7, 1999, this Convention[49] entered into force on September 14, 2001.  Its Preamble refers to a number of international conventions, declarations, and resolutions aimed at the protection of persons with physical, mental, or sensory impairment “whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment.”

States Parties to the Convention undertake to take all the necessary measures, including legislation, to promote the integration of persons with disabilities into society, “under conditions of equality”.  Their obligations range from ensuring that buildings and vehicles be designed so as to allow access by persons with disabilities, to giving priority to the prevention, early detection and treatment.  States Parties also undertake to increase public awareness so as to eliminate stereotypes, prejudices, and discrimination in employment.

 

B.  Monitoring Bodies

There are two monitoring bodies in the Inter-American system for the protection of human rights: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

    1 The Inter-American Commission on Human Rights  

a. History  

The Commission was created in 1959, but was not officially recognized as an organ of the OAS until 1967, when the OAS Charter was amended by the Protocol of Buenos Aires.  At the time of its official recognition, the Commission was given jurisdiction to hear allegations of violations of some of the rights guaranteed under the American Declaration[50].  However, the subsequent adoption and entry into force of the American Convention had significant consequences both for the Inter-American Commission and for the American Declaration.

The Convention preserved the scope and legal status of the American Declaration by providing that “no provision of the Convention shall be interpreted as….d) excluding or limiting the effects that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have”[51].   In addition, the Convention provided for the creation of a “Commission” and a Court.  However, the “Commission” contemplated in the American Convention could only have jurisdiction over the States Parties to the Convention, under the general rule of international law which provides that treaties do not create obligations for third States.

Therefore, if a new Commission were created to replace the one that exists under the Charter of the OAS, States not parties to the American Convention would escape scrutiny.  In order to avoid such an undesirable situation, the Commission’s initial jurisdiction was preserved and it became a dual institution.  In addition to its original jurisdiction over all member States of the OAS by virtue of their ratification of the OAS Charter, the Commission acquired jurisdiction to monitor implementation of the provisions of the American Convention in the States that have ratified it.  Furthermore, its Statute was amended so as to include all the provisions of the American Declaration.   The jurisdiction of the Commission has since been further extended to include the more recent Inter-American Conventions pertaining to human rights.[52]

 

    b.Functions

The seat of the Commission is in Washington, D.C.  Its function is to promote the observance and the defence of human rights. Among its various activities, the Commission:

·        Receives, analyzes and investigates individual petitions which allege violations of the rights guaranteed under the American Declaration or the American Convention.  

·        Refers cases to the Inter-American Court of Human Rights under the American Convention and appears before the Court on behalf of the victim.  It should be noted, however, that since 2000, the victim may appear independently of the Commission once the application made by the Commission has been accepted.  

·        Requests advisory opinions from the Inter-American Court regarding questions of interpretation of the American Convention.  

·        Monitors the general human rights situation in the member States, carries out on-site visits and publishes special reports when it considers it appropriate. As of 2001 the Commission had published over fifty country reports.[53]  

·        Publishes reports on specific situations such as the situation in the so-called “Communities of People in Resistance” in Guatemala[54], the human rights of Miskito Indians in Nicaragua [55], the human rights of asylum seekers in Canada[56], and the status of women[57] and indigenous peoples[58] in the Americas.  

·        Undertakes and publishes documents such as the study of both domestic and international authorities and precedents in the context of the Proposed Declaration on the Rights of Indigenous Peoples.[59]  

Officials told the Committee that Canada has some concerns about the credibility of the Commission[60].  Nonetheless, it should be noted that the Commission was a key player in the struggle against the hemisphere’s repressive regimes, and today continues to provide recourse to people who have suffered human rights violations.

In addition, Committee members had occasion to meet with the members of the Inter-American Commission on Human Rights and they learned that there had been changes in the Commission’s Rules of Procedure.  Such changes may address Canadian concerns.  For example, although the Commission has been criticized in the past for picking and choosing the cases it would take to the Court, there is now a presumption that all cases will be referred to the Court[61]unless special circumstances make it unnecessary or the victim does not want his or her case to go to the Court.  The decision not to refer a case to the Court must be adopted by a majority of the Commissioners and it must be explained in writing.  The explanation must include the wishes of the victim and the degree to which the State concerned has made good faith efforts to comply with the conclusions of the Commission. 

It should also be noted that as a State Party to the Convention, Canada would be in a position to take its case to the Court if it did not agree with the Commission’s determinations.  States like Canada that have not ratified the Convention do not have that option.  

 

2. The Inter-American Court of Human Rights

The Inter-American Court of Human Rights was established under the terms of article 33 of the American Convention.  Its seat is in San José, Costa Rica.  It consists of seven judges who are nationals of the OAS member States but do not have to be nationals of the States that have ratified the American Convention.  However, only States Parties to the Convention may present candidates and elect judges[62].  OAS member States like Canada that have not ratified the American Convention must convince a State Party to present their candidate.  Shortly after joining the OAS Canada unsuccessfully tried to have Madam Justice Bertha Wilson elected.  She was presented by Venezuela and Uruguay, but she was defeated by one vote.[63]

The Court has two areas of jurisdiction: it can hear allegations of violations of the American Convention and other Inter-American conventions and protocols, whether they are brought by the Inter-American Commission on behalf of victims or by States against one another.  In addition, the Convention gives the Court jurisdiction to render advisory opinions.  The Court’s jurisdiction over contentious cases is limited to States that have both ratified the American Convention and recognized the jurisdiction of the Court on all matters relating to the interpretation and application of the Convention.  In the case of State-to-State complaints, all of the States involved must be Party to the Convention and have recognized the jurisdiction of the Court.

    a. Advisory Jurisdiction  

The Inter-American Court’s advisory jurisdiction is unique in several ways.  In addition to the Inter-American Commission and other authorized bodies of the OAS, it extends to all OAS member States, whether Party to the Convention or not, and even if they have not recognized the jurisdiction of the Court over contentious matters.  This is the largest advisory jurisdiction of any international court.  States cannot make requests for advisory opinions to either the European Court of Human Rights or the International Court of Justice[64].  Furthermore, OAS member States may consult the Court regarding the interpretation not only of the Convention but also of any other treaty pertaining to the protection of human rights in the Americas.[65]  They can also consult the Court on the compatibility of their domestic laws, bills and proposed legislative amendments.[66]

The Court itself has stated that its advisory jurisdiction aims to "assist states and organs to comply with and to apply human rights treaties without subjecting them to the formalism and sanctions associated with the contentious judicial process"[67].  Thus, Canada may consult the Court on the compatibility of Canadian legislation with any of the provisions of the Convention that raise concerns for either the federal government or the provinces.  In addition, Canada may intervene as amicus curiae in any advisory opinion request placed before the Court.

 

    b. Contentious Jurisdiction

One witness before the Committee noted that by 1998, twenty years after it came into existence, the Court had only issued a limited number of judgments considering the human rights situation in many countries of the Americas[68].  However, it should be noted that this was basically a “start-up” phase, during which contentious cases worked their way through the system.  The Court began functioning in 1979.  At that time approximately 14 States had ratified the American Convention on Human Rights and were in a position to recognize the jurisdiction of the Court.  However, in most cases, several years elapsed between the ratification of the Convention and the recognition of the Court’s jurisdiction over contentious matters.[69]  

The Court rendered its first judgment in 1981.  The Government of Costa Rica had waived the rule of exhaustion of local remedies as well as the rule requiring the exhaustion of the process before the Inter-American Commission[70].  The Court held that the procedure before the Commission had not been set up solely for the benefit of States and that it could not be waived.  The case was referred back to the Commission.  The next decision would not come until 1987, in a case against Honduras, which originated in a petition received by the Commission on October 7, 1981. [71]  

While there were no decisions on contentious matters between 1982 and 1987, the Court was not inactive.  It gave a number of advisory opinions on a wide variety of issues including the effect of reservations on the entry into force of the Convention, restrictions to the death penalty, the interpretation of the American Declaration within the framework of article 64 of the Convention, exceptions to the rule of exhaustion of local remedies, compatibility of draft domestic legislation with the Convention, judicial guarantees during emergency situations, attributes of the Inter-American Commission on Human Rights as well as its preliminary and final reports (arts. 50 and 51 Reports).  All these advisory opinions assisted the Commission and States Parties to understand the scope and content of the American Convention, in a manner similar to the decisions of the Supreme Court of Canada with respect to the Constitution Act, 1982 and in particular the Charter of Rights and Freedoms.   

Between 1987 and February of 2002, the Court gave 32 decisions on the merits of contentious matters[72].  Most cases raised issues such as forced disappearances, extra-judicial executions, arbitrary detention resulting in the death of the detainees, torture, and other inhumane treatment causing death, military killing of civilians.  Although such cases still find their way onto the Court’s docket[73], the Court has recently been dealing with an increasing range of issues, including the wrongful dismissal of judges and civil servants, film censorship, the withdrawal of citizenship and removal from positions of authority of government critics, and the land rights of Indigenous peoples.  As noted above while the Committee was visiting the Inter-American Court on Human Rights in September 2002, the Court held hearings on the Case of the Five Pensioners against Perú, pertaining to modifications to their pension payments that were allegedly incompatible with the American Convention.  

All but three States Parties to the American Convention have now recognized the jurisdiction of the Court over contentious matters[74].  It should not be forgotten that the Court also has jurisdiction to hear complaints filed by one State against another.  Nine States Parties to the Convention have recognized the jurisdiction of the Court over inter-State complaints[75], although it has never been exercised.

 

C. Mechanisms for Protection and Redress  

The Inter-American system for the protection of human rights provides several mechanisms designed to protect human rights in the Americas, prevent violations and provide remedies and redress for victims.  

    

    1. The Individual Petition Process Before the Inter-American Commission

    a. Filing a Petition  

Individuals and groups who feel that their rights have been violated may petition the Inter-American Commission for redress, once they have exhausted all the remedies available to them at the national level. 

In the Inter-American system, anyone aware of a violation may petition the Inter-American Commission[76].  In addition, non-governmental organizations such as the Center for Justice and International Law (CEJIL), the Indian Law Resource Center as well as national human rights organizations have been able to present petitions on behalf of alleged victims.

An electronic form is available on the Internet site of the Inter-American Commission on Human Rights.  However, its use is not mandatory.  The petition may take the form of a simple letter stating the facts of the situation denounced, the identity of the petitioner if the petition is not signed by the alleged victim, and what remedies have been pursued at the national level.  The letter can be sent by mail or by fax.  Thus, in response to concerns expressed at hearings[77] it should be noted that the alleged victim does not have to travel to Washington. 

Non-governmental organizations such as CEJIL work with local lawyers and organizations who handled the case at the national level to prepare cases for submission to the Inter-American Commission.   However, CEJIL does not have the means to represent everyone and must select cases on the basis of the weight of the evidence, the type of violation – giving preference to violations that reflect a generalized situation in the country –and the relationship with local organizations.

During their fact-finding mission to the seat of the Inter-American Court, Committee members also learned that institutions such as the Inter-American Institute for Human Rights train local associations such as women’s groups so that they can learn to use the Inter-American system and file their own petitions.  

There are sine qua non admissibility requirements such as the exhaustion of all the local remedies available.  Exhaustion of domestic remedies essentially means a decision rendered by the highest court in the country, unless the alleged victim can invoke one of the recognized exceptions.  These include lack of remedy, undue delay in the proceedings, lack of independence of the judiciary, indigence of the victim or inability to find legal representation because of fear of reprisals in the legal or judicial community. 

In addition, the petition will be declared inadmissible if another international dispute resolution body has been seized of the same case.  The Rules of Procedure require that the petition be filed within six months of the notification of the decision of the court of last resort.  Although the whole process can be done in writing, with the exception of the Friendly Settlement Procedure, the Commission may hold hearings.  Once the petition has been declared admissible, the Commission acts on behalf of the victim to obtain information from the State concerned, but it also acts as judge of the case when it determines whether there have been any violations of the rights guaranteed under the Declaration or the Convention.

 

    b. Friendly Settlement Procedure  

This procedure is part of the individual petition process.  It can be initiated at the request of the parties or on the Commission’s own initiative.  While it was initially limited to disputes concerning the American Convention, it is now an option in disputes concerning all the Inter-American human rights instruments, including the American Declaration.  Questions could be raised as to the legal basis for the friendly settlement procedure with respect to States that have not ratified the American Convention since it is to be found only in the Rules of Procedure of the Inter-American Commission, adopted by the Commission itself.  However, the procedure is not mandatory.  It requires the consent of all parties and may be ended at any time by the Commission if it feels that the matter in dispute will not lend itself to a friendly settlement, or if any of the parties lacks the willingness to reach a settlement.

It could be argued that a friendly settlement is of a political nature and that it does not create precedents that can be useful to other victims.  The procedure could also be seen as a tool for the Commission to maintain greater control over the outcome of disputes and refer fewer cases to the Court.  Such concerns would appear to be unfounded, however. The contents of settlements are made public, and although they are not precedent-setting, they provide clues that can make them useful.  In addition, alleged victims of human rights violations are free to pursue the remedy of their choice, and they may prefer the relatively more expedient friendly settlement procedure.[78]

During their fact-finding mission to the seat of the Inter-American Court, members of the Committee learned that Casa Alianza for instance, a non-governmental organization which offers a variety of services to homeless youth, uses the Inter-American system to denounce the situation of street children.  However, Casa Alianza does not necessarily want each case to reach the Court.  It tends to prefer the Commission’s less expensive friendly settlement procedure.

Finally, the friendly settlement procedure has the support of the OAS member States.  On June 5, 2000, the General Assembly of the OAS adopted Resolution 1701, “Evaluation of the Workings of the Inter-American System for the Protection and Promotion of Human Rights With a View to its Improvement and Strengthening”[79], which recommends that the Inter-American Commission “consider the possibility of […] continuing to promote the friendly settlement procedure as a suitable mechanism for the successful resolution of individual cases.” 

 

c. Recommendations or Referral of the Case to the Court

As noted earlier, the Rules of Procedure of the Inter-American Commission have been amended to include a presumption that all cases against States Parties to the Convention that have recognized the compulsory jurisdiction of the Court in contentious matters will be referred to the Court.

The process of examination by the Commission is essentially the same whether the petition alleges violations of the Declaration or of the Convention.  The fundamental difference is that the jurisdiction of the Inter-American Court of Human Rights is based on the American Convention, not on the OAS Charter, and it requires formal acceptance by States.  Consequently, if the State concerned has not ratified the American Convention, or has ratified the Convention but has not recognized the jurisdiction of the Court, the Commission will not be able to refer the case to the Court and the process will end with the Commission’s recommendations.  That is currently the case for Canada.

Although OAS member States have an obligation to abide by the decisions of the OAS organs, the Commission’s recommendations are not decisions[80], and they are therefore not legally binding[81].  In addition, the Inter-American Court has held that they do not “have the character of an obligatory judicial decision for which the failure to comply would generate State responsibility”[82].  On the other hand, the Court also stated that “ in accordance with the principle of good faith, embodied in the aforesaid Article 31(1) of the Vienna Convention, if a State signs and ratifies an international treaty, especially one concerning human rights, such as the American Convention, it has the obligation to make every effort to apply with the recommendations of a protection organ such as the Inter-American Commission, which is, indeed, one of the principal organs of the Organization of American States, whose function is "to promote the observance and defence of human rights" in the hemisphere (OAS Charter, Articles 52 and 111)”.[83] If the State concerned does not comply with the recommendations of the Commission, details of the case, including the Commission’s recommendations can be published in the Annual Report of the Inter-American Commission on Human Rights.   

The Inter-American Commission has greater authority over the OAS member States that have ratified the American Convention and recognized the jurisdiction of the Inter-American Court.  With respect to those States, the Commission can defer the case to the Inter-American Court.  As illustrated in the following outline of the individual complaint process, States get ample warning.  If the preliminary report drafted by the Commission establishes violations, it sets a deadline of three months for compliance.  The purpose of this preliminary report is to give the State concerned time to redress the situation before initiating judicial proceedings.

Once the Court has accepted the case, the role of the Commission changes, especially if the alleged victim chooses to appear independently.  In that case, the Commission and the victim become independent parties, albeit linked by a common interest.  Before the Court, the Commission acting as guardian of the Convention and of the Inter-American system for the protection of human rights, present its own case while the alleged victim has independent legal counsel presenting his or her case.  Transparent rules and procedural guarantees ensure that this switch in the role of the Commission poses no threat to the integrity of the system.

OUTLINE OF THE INDIVIDUAL COMPLAINT PROCESS BEFORE THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS