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American Declaration of the Rights and Duties of Man and the American Convention on Human Rights

American Declaration of the Rights and Duties of Man and the American Convention on Human Rights

The Organization of American States (OAS) promotes and protects human rights in the Western Hemisphere through a comprehensive system of norms, institutions, and procedures. The OAS Charter, the constitution of the organization, contains few references to human rights, although there are provisions specifically devoted to representative democracy, human rights and equality, economic rights, and the right to education.

Two of the most important legal instruments for the OAS member states are the American Declaration of the Rights and Duties of Man (1948) and the American Convention on Human Rights (1969). The Convention has been supplemented by two further treaties: the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988) and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990). These treaties are binding only on the states that ratify them.

The Ninth International Conference of American States, which concluded the OAS Charter, also adopted the American Declaration as a nonbinding conference resolution on May 2, 1948. Over time, the legal status of the Declaration evolved, and today it is generally held to set forth the "fundamental rights of the individual" referred to in Article 3(1) of the OAS Charter. The Inter-American Court of Human Rights has found that "for the member states of the Organization, the Declaration is the text that defines the human rights referred to in the Charter" and is thus a source of legal obligation (Advisory Opinion OC, 10/89).

The Declaration proclaims a list of twenty-seven human rights and ten duties, addressing civil, political, economic, social and cultural rights. The rights set forth include the right to life, liberty, and security of person; equality before the law; residence and movement; fair trial; protection from arbitrary arrest; due process of law; privacy, property, work, health, education, social security, nationality, and asylum; the benefits of culture; and leisure time. Basic freedoms, including freedom of religion, expression, assembly, and association are also guaranteed. The duties listed include a duty to society, toward children and parents, to receive instruction, to vote, to obey the law, to serve the community and the nation, to pay taxes, and to work.

In 1967, the OAS amended its charter to include a provision calling for a binding treaty on human rights. The treaty was adopted in 1969 as the American Convention on Human Rights and entered into force in 1978. The Convention protects primarily civil and political rights, defining in more detail some of the rights contained in the American Declaration. Article 26 of the Convention also calls for progressive measures by states that participate to achieve "full realization of the rights implicit in the economic, social, education, scientific, and cultural standards set forth in the Charter." In addition to conferring new functions on the preexisting Inter-American Commission on Human Rights, the Convention created an Inter-American Court to supervise state compliance with the Convention. Individuals and groups, after having recourse to all local remedies, may file petitions against states that violate the guaranteed rights.

The Protocol on Economic, Social, and Cultural Rights, which entered into force in 1999, obliges parties to it to take progressive action, according to their degree of development, to achieve observance of the right to work and to just, equitable, and satisfactory conditions of work; the right to organize trade unions and to strike; the right to social security; the right to health; the right to a healthy environment; the right to food; the right to education; the right to the benefits of culture; and the right to the formation and protection of families. In addition, special protections are afforded certain vulnerable groups such as children, the elderly, and the disabled. The Convention's petition procedures extend to two rights in the Protocol: the right to form trade unions (Article 8a)


and the right to education (Article 13). Implementation of the remaining rights is supervised through a system of state reports.

Some recognized rights may be limited or suspended under certain circumstances. The Declaration and the Convention each contain a clause that provides that the rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare in a democratic society. In addition, some rights in the Convention are accompanied by specific provisions that permit limitations in the interest of national security, public safety, or public order, or to protect public health or morals or the rights or freedoms of others.

Article 27 of the Convention permits a state party to suspend one or more rights during a period of national emergency. Any such measure must be nondiscriminatory and "strictly required by the exigencies of the situation" (Advisory Opinion OC, 9/87). In addition, it is never permitted to suspend the rights to juridical personality, life, humane treatment, freedom from slavery, freedom from ex post facto laws, freedom of conscience and religion, rights of the family, right to a name, rights of the child, right to nationality, and the right to participate in government. In all cases, the judicial guarantees essential for the protection of human rights, including procedures of amparo and habeas corpus must be maintained.

States are obliged not only to respect the observance of rights and freedoms but also to guarantee their existence and the exercise of all of them. Thus any act or omission by any public authority that impairs guaranteed rights may violate a state's obligations.

The inter-American system has several advantages over other regional or global petition procedures. Standing to file a petition is virtually unlimited, and other admissibility requirements are less burdensome within the OAS system than elsewhere. The procedures are relatively informal, which theoretically allows the Commission to move more quickly when necessary and to respond flexibly to a variety of situations. The Commission also has the unique option of being able to undertake a major study of the human rights situation in a country, even if its investigation begins with the consideration of an individual case. The system has had considerable impact on the domestic laws and policies of OAS member states since its inception.

See also: Economic, Social, and Cultural Rights; European Convention on Human Rights and Fundamental Freedoms.

bibliography

Advisory Opinion OC, 9/87. Judicial Guarantees in States of Emergency, Arts. 27(2), 25 and 8 of the American Convention on Human Rights, Inter-Am. Ct. H.R. (Ser. A) No. 9 (1987). University of Minnesota Human Rights Library. <http://heiwww.unige.ch/humanrts/iachr/b_11_4i.htm>.

Advisory Opinion OC, 10/89. Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Inter-Am. Ct. H.R. (Ser. A) No. 10 (1989). University of Minnesota Human Rights Library. <http://heiwww.unige.ch/humanrts/iachr/b_11_4j.htm>.

Buergenthal, Thomas, and Dinah Shelton. Protecting Human Rights in the Americas: Cases and Material, 4th ed., rev. Arlington, VA: N. P. Engel, 1995.

Davidson, Scott. The Inter-American Human Rights System. Brookfield, VT: Ashgate Publishing, 1998.

General Secretariat of the Organization of American States. The Inter-American System. 4 vols. Washington, DC: General Secretariat of the Organization of American States, 1982.

Harris, David J., and Stephen Livingstone, eds. The Inter-American System of Human Rights. New York: Oxford University Press, 1998.

Dinah Shelton

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