The OAS and the Promotion and Protection of Human Rights PDF
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THE OAS AND THE PROMOTION AND PROTECTION OF HUMAN RIGHTS THE OAS AND THE PROMOTION AND PROTECTION OF HUMAN RIGHTS by LA WRENCE J. LEBLANC MARTINUS NIJHOFF-THE HAGUE-1977 © 1977 by Martinus Nijhoff, The Hague, Netherlands All rights reserved, including the right to translate or to reproduce this book or parts thereofi n any form ISBN 978-94-011-8695-7 ISBN 978-94-011-9514-0 (eBook) DOl 10.1007/978-94-011-9514-0 CONTENTS List of Figures and Tables VI Preface VII I. INTRODUCTION II. INTER-AMERICAN OBLIGATIONS ON HUMAN RIGHTS 6 III. WHAT ARE HUMAN RIGHTS? 25 IV. THE IACHR: ITS ORIGINS AND ORGANIZATION 41 V. THE IACHR AND THE PROMOTION OF HUMAN RIGHTS 69 VI. THE IACHR AND THE PROTECTION OF HUMAN RIGHTS 91 VII. CONCLUSION 169 Appendix: The A merican Declaration oft he Rights and Duties of Man 172 Index 177 LIST OF FIGURES AND TABLES Figure 2.1 Structure of the Organization of American States (1951-1970) 7 Figure 2.2 Structure of the Organization of American States (I97O-Present) 8 Table 4.1 MembersoftheIACHR,1960-1975 61 Table 5.1 Votes cast in the Council of the OAS on the special voting pro cedure proposed for Article 9 (0, and on both options proposed in that paragraph 75 PREFACE This book is a product of my long-standing interest in international action on human rights, an interest which I developed as a graduate student and which I have maintained as a teacher and researcher. I am indebted to Professor Vernon Van Dyke of the University of Iowa for stimulating my interest in the subject and for guiding the preparation of my Ph.D. thesis, of which this book is a greatly revised and expanded version. I should also like to express my ap preciation to Professor A. Glenn Mower, Jr., of Hanover College, and to my colleague Glenn N. Schram, both of whom read the thesis and made many helpful suggestions when I began to revise it for publication. The book is im proved as a result of their efforts, though I alone remain responsible for any errors of fact or interpretation. Most of the research on the book was done at the Columbus Memorial Library of the OAS in Washington, D.C., and I am grateful to the librarians there for kind and efficient assistance. The Marquette University Committee on Research provided me with a research grant for the summer of 1974 and supplementary grants in 1975 and 1976 which facilitated the completion of the manuscript: I am grateful for this assistance. I have endeavored to include all material available to me as of the end of March, 1976. I should like to thank Mary Scopp and Peggy Schaus for their expert secretarial assistance. Finally, I should like to express my appreciation to my wife, Mary, without whose help I would never have been able to complete the manuscript. This book is fondly dedicated to her. Milwaukee, Wisconsin CHAPTER ONE INTRODUCTION International action to protect what we today call "human rights" has oc curred through the centuries. Agitation to suppress the slave trade, for exam ple,dates back to the seventeenth century-though it was not until the nineteenth and twentieth centuries that treaties were adopted to suppress the traffic and ultimately to abolish slavery itself. During the same period conven tions on the law of war were adopted and laid down rules on such matters as the treatment of prisoners of war and civilian populations. Peace treaties con cluded at the close of World War I as well as various provisions of the Cove nant of the League of Nations had implications for the treatment of minorities. Immediately after World War I the International Labor Organiza tion was created: and it has devoted itself to reducing hours of work, ensuring health and safety standards, promoting collective bargaining, and other programs for workers. These as well as other developments prior to World War II were to have important implications for human welfare. Moreover, they led to an alteration of the conception of international law held by some international lawyers. As Evan Luard has observed. "Nearly all nineteenth-century lawyers. whether or not they followed positivist doctrines ...• would have denied that governments were under any special obligations concerning the treatment of their own subjects within their own jurisdiction". In the 1920's and 1930's however, "the opinion of some international lawyers changed on this point. It began to be held that individuals, as well as states, were the subjects of inter nationallaw".l Nevertheless, such measures as were adopted on human rights prior to World War II, as the examples cited above suggest. were adopted sporadically and usually were directed towards the elimination of specific practices such as slavery and maltreatment of minorities. It is mainly since World War II that efforts have been made to provide comprehensive protec tion to all individuals against all forms of injustice. I Evan Luard (ed.), The International Protection of Human Rights (New York: Frederick A. Praeger, 1967), p. 20. See generally the essay by Luard. "The Origins of International Concern Over Human Rights," pp. 7-21. 2 INTRODUCTION Interest in providing comprehensive protection to all persons in all nations in the post World War II period was stimulated by the disregard for human rights by Nazi and Fascist regimes. Atrocities committed under those regimes demonstrated that governments which disregard the rights of their own citizens are not likely to treat the citizens of other states differently; more broadly, they led many to see a relationship between respect for human rights and peace. This relationship was stressed in various wartime declarations and proposals. The Atlantic Charter, for example, expressed the hope that the destruction of Nazism would make it possible for all nations to exist in peace with one another, and that all peoples within all nations would be able to live their lives in freedom from fear and want. These aspirations were incor porated in the United Nations Declaration of January, 1942. In addition, the Dumbarton Oaks proposals on the United Nations anticipated a role for the organization in the promotion of respect for human rights; the drafters of the Charter followed through by listing the promotion of respect for human rights among the purposes and principles of the United Nations in Article 1 (3). Ar ticle 55 of the Charter goes further to state that "the United Nations shall promote ... universal respect for, and observance of, human rights and fun damental freedoms for all without distinction as to race, language or religion." In Article 56, "all members lof the United Nations \ pledge themselves to take joint and separate action in cooperation with the organization for the achievement of the purposes set forth in Article 55." The drafters of the charters of the major regional international governmen tal organizations created at the close of World War II also manifested an in terest in taking action on behalf of human rights. Article 3 of the Statute of the Council of El!rope establishes respect for human rights as a condition of membership, providing in part that "Every Member of the Council of Europe must accept the principles of the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms ...." Numerous references to human rights were included in the Charter of the Organization of American States (OAS), including one (Article 13 of the original Charter; Article 16 of the revised Charter) which provides 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." The states who have ratified the United Nations Charter, the Charter of the OAS, or the Statute of the Council of Europe have, by virtue of provisions such as those discussed above, recognized that human rights are a matter of international concern and have assumed international obligations on them. But the obligations are vague; nowhere do these instruments clearly identify the rights which are to be promoted or respected. It was for this reason that those who advocated international action on human rights pressed hard in the post-war years for the adoption of declarations, covenants, and conventions INTRODUCTION 3 which would give greater meaning to obligations already assumed, or would create new, more meaningful obligations. Many have been adopted. The United Nations General Assembly adopted the Universal Declaration of Human Rights in 1948. In the ensuing years it has adopted, and thus opened for ratification, numerous conventions and covenants, some of which deal with specific subjects such as racism and the rights of women, and two of which, adopted in 1966, are of a more general nature: the International Covenant on Civil and Political Rights (and an Op tional Protocol to it), and the International Covenant on Economic, Social. and Cultural Rights. In 1950 the Council of Europe adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms. and it has since been ratified by the great majority of member states and has entered into force. The European Social Charter, which has also entered into force, affirms a group of rights commonly referred to as economic. social, and cultural rights. In 1948 the American states adopted the American Declara tion of the Rights and Duties of Man; in 1969 the American Convention on Human Rights was adopted and thus opened for ratification by member states of the OAS. Numerous international human rights agencies have also been created. though they differ from each other in terms of their structure, functions. and the degree of independence and objectivity with which they have performed their tasks. Examples include the United Nations Commission on Human Rights created by the Economic and Social Council in 1946: the European Commission and Court of Human Rights which function as organs of im plementation of the Convention for the Protection of Human Rights and Fun damental Freedoms; and the Inter-American Commission on Human Rights (IACHR), created by resolution of the Fifth Meeting of Consultation of Ministers of Foreign Affairs in 1959. (To these one could add a number of well known non-governmental organizations which have been active in the field of human rights, e.g., the International Commission of Jurists and Amnesty International.) Still others might be created. The International Covenant on Civil and Political Rights, if it enters into force, would lead to the creation of a Human Rights Committee; a commission and a court would function as organs of implementation of the American Convention on Human Rights if it enters into force. International action on human rights is thus not confined to either the global or regional levels of international relations. Instead, there has occurred a broad attack in defense of human rights on both levels, with the activities of various agencies in the United Nations, the Council of Europe, and the OAS complementing, reinforcing, and sometimes conflicting with one another. These activities could have important implications for human welfare. They also raise important foreign policy questions for states. Is it enough to declare human rights a matter of international concern and to proclaim the rights
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