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The Revised OAS Charter and the Protection of Human Rights

Published online by Cambridge University Press:  28 March 2017

Thomas Buergenthal
Thomas Buergenthal*
Affiliation:
Of the Board of Editors
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Extract

The “Protocol of Buenos Aires,” which revised the Charter of the Organization of American States, entered into force in 1970. It changed the legal status of the Inter-American Commission on Human Rights in a number of important respects and strengthened the normative character of the American Declaration of the Rights and Duties of Man. These are most significant developments, and yet they have gone largely unnoticed in the literature.

Type
Research Article
Information
American Journal of International Law , Volume 69 , Issue 4 , October 1975 , pp. 828 - 839
Copyright
Copyright © American Society of International Law 1975

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References

1 The “Protocol of Buenos Aires” was signed at that city on February 27, 1967. The amended OAS Charter entered into force on February 27, 1970. 21 UST 607, TIAS No. 6847, 64 AJIL 996 (1970). See generally Sepulveda, , The Reform of the Charter of the Organization of American States, 137 Hague Rec. Des Cours 83 (1972)Google Scholar; Dreier, , New Wine and Old Bottles: The Changing Inter-American System, 22 Int. Org. 477 (1968)Google Scholar; Robertson, , Revision of the Charter of the Organisation of American States, 17 Int. & Comp. L. Q. 346 (1968)Google Scholar.

2 The original Charter of the Organization of American States [hereinafter [1948] OAS Charter] was signed at Bogotá, Colombia, on April 30, 1948, and entered into force on December 13, 1951, [1951] 2 UST 2394, TIAS No. 2361, 119 UNTS 48, 46 AJIL Supp. 43 (1952).

3 See also [1948] OAS Charter, Article 13, which declared that “each State has the right to develop its cultural, political and economic life freely and naturally. In this free development, the State shall respect the rights of the individual and the principles of universal morality.” Both Articles 5(j) and 13 have been retained in the amended Charter as Articles 3(j) and 16, respectively.

4 Res. XXX, Final Act of the Ninth International Conference of American States, Bogotd, Colombia, March 30–May 2, 1948, at 38 (PAU 1948); Inteb-Amehican Commission on Human Rights, Handbook of Existing Rules Pertaining to Human Rights [hereinafter cited as I-ACHR, Handbook], OAS Off. Rec., OEA/Ser.L/V/ 11.23, Doc. 21 (English) Rev. 2, at 15 (1975).

5 See generally Fenwick, C. , The Organization of American States 155–57 (1963)Google Scholar; Ball, M. , The OAS in Transition 119–20 (1969)Google Scholar.

6 Dept. of State, Report of The Delegation of the United States of America .to the Ninth International Conference of American States, Bogotá, Colombia, March 30–May 2, 1948, at 35–36 (Publ. No. 3263, 1948). For a useful discussion of the legislative history of the interrelationship between the human rights provisions of the [1948] OAS Charter and the American Declaration, see Schreiber, A. , The Inter-American Commission on Human Rights 16–22 (1970)Google Scholar. See also Pan American Union, Human Rights in the American States 115–16 (Prelim, , ed. 1960)Google Scholar.

7 Inter-American Juridical Committee, Report to the Inter-American Council of Jurists Concerning Resolution XXXI of the Bogotá Conference, September 26, 1949, reprinted in Pan American Union, Human Rights in the American States 163, at 164 (Prelim, ed., 1960).

8 Id. at 165.

9 For a review of developments between 1948 and 1959, see I-ACHR, The Organization of American States and Human Rights: Activities of the Inter-American Commission on Human Rights 1960–1967, at 3–9 (1972); Ball, M. , Issues for the Americas: Non-intervention v. Human Rights and the Preservation of Democratic Institutions, 15 Int. Org. 21, 25–26 (1961)Google Scholar.

10 Res. VIII, Fifth Meeting of Consultation of Ministers of Foreign Affairs, Santiago, Chile, August 12–18, 1959, Final Act, OAS OFF. Rec. OEA/Ser.C/II.5 (English), at 10–11 (1960).

11 The text of the 1960 Statute of the Commission is reproduced in I-ACHR, Basic Documents, OAS Off. Rec. OEA/Ser.L/V/1.4 Rev. (English), at 9 (1963). The amended Statute now in effect is reproduced in I-ACHR, Handbook, supra note 4, at 23.

12 [1960] Annual Report of the Secretary General, Off. Rec. OEA/Ser.D/IH.12 (English), at 19–20 (1961).

13 Statute of the Inter-American Commission on Human Rights [hereinafter cited as Statute], Art. 1.

14 Statute, Art. 2.

15 I-ACHR, Report on the Work Accomplished During its First Session, October 3–28, 1960, OAS Off. Rec. OEA/Ser.L/V/II.l, Doc. 32 (English), at 10 (1961). See Sandifer, , Human Rights in the Inter-American System, 11 How. L. J. 508, 517–18 (1965)Google Scholar; Scheman, , The Inter-American Commission on Human Rights, 59 AJIL 335, 337–39 (1965)Google Scholar.

16 For a review of this practice, see Thomas, & Thomas, , The Inter-American Commission on Human Rights, 20 Sw. L. J. 282, 287–305 (1966)Google Scholar; Vasak, K. , La Commission Interaméricaine Des Droits De l’Homme 124–38 (1968)Google Scholar. Some of the “country reports” are reproduced in I-ACHR, The Organization of American States and Human Rights: Activities of the Commission on Hitman Rights 1960–1967, pt. III (1972); Sohn, L. & Buergenthal, T. , International Protection of Human Rights 1293–340 (1973)Google Scholar.

17 See, e.g., Schreiber, A. & Schreiber, P. , The Inter-American Commission on Human Rights in the Dominican Crisis, 22 Int. Org. 508, 510–19 (1968)Google Scholar; Inter-American Institute of International Legal Studies, The Inter-American System: Its Development And Strengthening 45–55 (1966).

18 I-ACHR, Report on the Work Accomplished During its First Session, October 3 to 28, 1960, OAS Off. Rec., OEA/Ser.L/V/II.l, Doc. 32 (English), at 13 (1961).

19 See, e.g., I-ACHR, Report on the Work Accomplished During its Third Session, October 2–November 4, 1961, OAS Off. Rec. OEA/Ser.L/V/II.3, Doc. 32 (English), at 16–17 (1962). See also Ball, supra note 5, at 375–77.

20 Res. XXII, Second Special Inter-American Conference, Rio de Janeiro, Brazil, November 17–30, 1965, Final Act, OAS Off. Rec., OEA/Ser.C/1.13 (English) at 32–34(1965).

21 These provisions deal with the right to life, liberty, and personal security (Art. I ) ; equality before the law (Art. II ) ; freedom of religion (Art. III) freedom of expression (Art. IV); right to a fair trial (Art. XVIII); freedom from arbitrary arrest (Art. XXV); and due process of law (Art. XXVI).

22 The Commission’s power to deal with these communications was conditioned on its preliminary determination that applicable domestic remedies were exhausted. Res. XXII, para. 5, supra note 20.

23 Prior to the amendment of the OAS Charter this report was to be submitted either to the Inter-American Conference or to the Meeting of Consultation of Ministers of Foreign Affairs. It now goes to the OAS General Assembly. OAS Charter, Art. 52(f).

24 Res. XXII, para. 8, supra note 20, authorized the amendment of the Commission’s Statute to give effect to the provisions of the resolution. The relevant amendments—two other provisions (Articles 7 (bis) and 14 (bis)) in addition to Article 9 (bis)—were adopted by the Commission in 1966. I-ACHR, Report on the Work Accomplished During its Thirteenth Session, April 18–28, 1966, OAS Off. Rec. OEA/Ser.L/V/II.14, Doc. 35 (English), at 22–24 (1966). Article 9 (bis) reads as follows:

The Commission shall have the following additional functions and powers:

a) To give particular attention to observance of the human rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man;

b) To examine communications submitted to it and any other available information; to address the government of any American state for information deemed pertinent by the Commission; and to make recommendations, when it deems this appropriate, with the objective of bringing about more effective observance of fundamental human rights;

c) To submit a report annually to the Inter-American Conference or to the Meeting of Consultation of Ministers of Foreign Affairs, which should include: (i) a statement of progress achieved in realization of the goals set forth in the American Declaration; (ii) a statement of areas in which further steps are needed to give effect to the human rights set forth in the American Declaration; and (iii) such observations as the Commission may deem appropriate on matters covered in the communications submitted to it and in other information available to the Commission;

d) To verify, as a condition precedent to the exercise of the powers set forth in paragraphs b) and c) of the present article, whether the internal legal procedures and remedies of each member state have been duly applied and exhausted.

25 See, e.g., I-ACHR, Activities of the Inter-American Commission on Human Rights (1965–1969), OAS Off. Rec, OEA/Ser.L/V/II.23, Doc. 11 (English) Rev., at 7–25 (1971); Annual Report of the Inter-American Commission on Human Rights for the Year 1973, OAS Off. REC, OEA Ser.P/AG/Doc. 409/74 (English), at 38–100 and 106–49 (1974).

26 Annual Report of the Inter-American Commission on Human Rights for the Year 1973, supra note 25, at 38–81.

27 I-ACHR, Report on the Status of Human Rights in Chile: Findings of “On-the- Spot” Observations in the Republic of Chile, July 22–August 2, 1974, OAS Off. Rec, OEA/Ser.L/II.34, Doc. 21 (English) Corr. I (1974); Observations by the Government of Chile on the “Report on the Status of Human Rights in Chile” Prepared by the Inter-American Commission on Human Rights, OAS Off. Rec, OEA/Ser.G/CP/Doc. 385/74 (English).

28 For a careful analysis of the institutional status of the Commission, see Vasak, supra note 16, at 41–44. The [1948] OAS Charter, Art. 57, established only three organs of the OAS Council (the Inter-American Economic and Social Council, Council of Jurists, and Cultural Council) and did not provide for the creation of additional ones. See generally Inter-American Institute of International Legal Studies, supra note 17, at 12–14 and 16–24. The Commission did not qualify as an “Inter-American Specialized Organization” because it was not an “intergovernmental organization established by multilateral agreement” as required by Article 95 of the [1948] OAS Charter. The Commission was established by a resolution of the Fifth Meeting of Consultation of Ministers of Foreign Affairs, which was implemented by the OAS Council when it adopted the Commission’s Statute. See discussion on pp. 829–30, supra. But even assuming that the Ministers’ resolution could be regarded as a “multilateral agreement” within the meaning of Article 95, the fact remains that the steps necessary to confer that status on the Commission were never taken. See [1948] OAS Charter, Ch. XV. See also Inter-American Institute of International Legal Studies, supra note 17, at 349.

29 Statute, Art. 2.

30 See discussion on p. 829, supra.

31 The American Convention on Human Rights was opened for signature at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, on November 22, 1969. The text of the Convention is reproduced in 1–ACHR, Handbook, supra note 4, at 44. For an analysis of the Convention, see Fox, , The American Convention on Human Rights and Prospects for United States Ratification, 3 Human Rights 243 (1973)Google Scholar; Thomas, & Thomas, , Human Rights and the Organization of American States, 12 Santa Clara Law. 319, 349–74 (1972)Google Scholar; Buergenthal, , The American Convention on Human Rights: IIIusions and Hopes, 21 Buffalo L. Rev. 121 (1971)Google Scholar. See also Sohn & Buergenthal, supra note 16, at 1356–74.

32 The Convention was ratified by Costa Rica in 1970 and by Colombia in 1973.

33 OAS Charter, Art. 112.

34 OAS Charter, Art. 150.

35 This conclusion finds some support in the extremely sparse travaux préparatoires relating to the human rights provisions found in the revised OAS Charter. See Acta de la Decima Sesion de la Comision “B,” Third Special Inter-American Conference, Buenos Aires, Argentina, February 15–27, 1967, OAS Off. Rec, OEA/Ser.E/XIV.l, Doc. 63, at 32–37 (1967). See also, Inter-American Institute of International Legal Studies, supra note 17, at 317.

36 Although this subject seems never to have been systematically analyzed or formally acted upon by the Inter-American Commission on Human Rights, some of its members have expressed views similar to those advanced herein. See Carlos, A. Dunshee de, Abranches, Work of the Inter-American Commission on Human Rights in Accordance with the Protocol of Buenos Aires, OAS Off. Rec. OEA/Ser.L/V/II.23, Doc. 25 (English) Rev. 1 (1970)Google Scholar; I-ACHR, Report on the Work Accomplished During its Twenty-Fourth Session, October 13–22, 1970, OAS Off. Rec. OEA/Ser.L/V/II.24, Doc. 32 (English) Rev. Corr., at 37–40 (1971); I-ACHR, Report on the Work Accomplished During its Twenty-Sixth Session, October 27–November 4, 1971, OAS Off. Rec, OEA/Ser.L/V/II.26, Doc. 37 (English) Rev. 1, at 42–44 (1972).

37 Cf. I-ACHR, Report on the Status of Human Rights in Chile, supra note 27, where the Commission, after finding that the Government of Chile has violated various provisions of the American Declaration, looks to Article 27 of the American Convention on Human Rights to support its conclusion that even a national emergency does not permit a state to violate some of these rights. Interestingly enough, the Commission justifies its reliance on the “derogation clause” of the unratified American Convention (the American Declaration does not have a comparable clause) by noting that “with respect to American international law—which is the normative system that the Commission must take primarily into account—it must be understood that, in the absence of conventional standards in force in this area, the ‘most accepted doctrine’ is that which is set forth in the American Convention. . . .” Id. at 2–3. This theory applies with even greater force to the American Declaration and the Commission’s reliance on it in cases like those involving the Government of Chile.