Memorandum for the executive director center for Justice and International Law
Further to your mail requiring my assistance in responding strategically to a situation of human rights abuse in the State of Abandon, I am of the opinion that there has been a clear violation of the terms of the American Declaration, San Salvador Protocol and the American Convention in respect of education and life of children. In the first part, the various provisions of conventions and statutes dealing with the educational and civil rights have been discussed. The American Declaration is devoid of a general obligations clause.
However, it has unfailingly been implementing a single set of general state provisions. The main task allotted to it has been to “promote the observance and protection of human rights . ” The San Salvador Protocol imposes a duty on states to accept all such measures as will protect the economic, social and cultural rights it contains. Since, the inter American organs have till now been unable to resolve any case under this Protocol as far as individual petitions are concerned , it becomes essential to interpret on the basis of a textual analysis of the obligation clauses.
Similarly, the American Convention has without any ambiguity identified the specific tasks that match the inherent economic, social, and cultural rights. Moreover, the Convention segregates them as Civil and Political Rights and as Economic, Social and Cultural Rights. In the second part a discussion will be conducted as to the procedure to be adopted by the victims to get redressal for violation of their rights by the state.
With the adoption of the American Declaration of the Rights and Duties of Man in Bogota, Colombia in April of 1948, the inter-American human rights system came in to existence. It has the distinction of being the first international human rights instrument which has a general nature. The IACHR held its first session in 1960. In 1961, the IACHR had commenced carrying out of on-site visits in order to scrutinize the general human rights position in a country or to probe specific situations. Subsequently, the IACHR has visited 23 member States 69 times.
Moreover, consequent to these visits, during which it observes and studies the situation obtaining in a country in respect of the observation of human rights, it has been able to submit special country reports. In order to examine complaints in respect of violations of human rights the IACHR was authorized in 1965. Due to this a very large number of such petitions have been received by the IACHR. Moreover, the final published reports of the IACHR regarding in these cases are contained in the Annual Reports of the Commission.
The American Convention on Human Rights which was adopted in 1969 was adopted by 25 countries. This Convention describes the human rights which the endorsing States have agreed to respect and ensure. It has also formed the Inter-American Court of Human Rights, which classifies the roles and modus operandi of both the Commission and the Court. The IACHR can also process cases in respect of countries that are not parties to the Convention. The cardinal function of the IACHR is to ensure that human rights are observed and further to defend human rights.
In this endeavour it, a) Receives, analyzes and investigates individual petitions which allege human rights violations, pursuant to Articles 44 to 51 of the Convention. This procedure will be discussed in greater detail below. b) Observes the general human rights situation in the member States and publishes special reports regarding the situation in a specific State, when it considers it appropriate. c) Carries out on-site visits to countries to engage in more in-depth analysis of the general situation and/or to investigate a specific situation.
These visits usually result in the preparation of a report regarding the human rights situation observed, which is published and sent to the General Assembly. d) Stimulates public consciousness regarding human rights in the Americas. To that end, carries out and publishes studies on specific subjects, such as: measures to be taken to ensure greater independence of the judiciary; the activities of irregular armed groups; the human rights situation of minors and women, and; the human rights of indigenous peoples.
e) Organizes and carries out conferences, seminars and meetings with representatives of Governments, academic institutions, non-governmental groups, etc… in order to disseminate information and to increase knowledge regarding issues relating to the inter-American human rights system. f) Recommends to the member States of the OAS the adoption of measures which would contribute to human rights protection. g) Requests the States to adopt specific “precautionary measures” to avoid serious and irreparable harm to human rights in urgent cases.
The Commission may also request that the Court order “provisional measures” in urgent cases which involve danger to persons, even where a case has not yet been submitted to the Court. h) Submits cases to the Inter-American Court and appears before the Court in the litigation of cases. i) Requests advisory opinions from the Inter-American Court regarding questions of interpretation of the American Convention.