AMERICAN CONVENTION OF HUMAN RIGHTS, Essays (university) of Human Rights

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THE AMERICAN

CONVENTION ON

HUMAN RIGHTS

SUBMITTED BY

SUJAN G

B.BA, LL.B (Hons)

CRESCENT SCHOOL OF LAW

AMERICAN CONVENTION ON HUMAN RIGHTS

ABSTRACT

The American Convention on Human Rights is an International instrument for the enforcement and guarantee of Human Rights. The Convention focuses on establishment of social justice and order, throughout the region of America by recognizing various sets of Human Rights that are or the social, economical and civil development of the citizens of the American Union. This paper aims to bring out the various Enumerated Human Rights which are guaranteed to the citizens of the American Union, by the American Convention of Human Rights adopted in the year 1969. Each Articles of the Convention is taken up and discussed in detail mentioning the Author’s perspective about those Rights. This paper in detail speaks about the various This paper also describes the role and functions of the Organs that enforce Human Rights in the American Union, that came into existence with the adoption of the American Convention of Human Rights, that is, The Inter-American Court of Human Rights and The Inter-American Commission for Human Rights. This paper further gives the interpretation regarding the Uniform Application of the American Convention of Human Rights given by the Inter-American Court of Human Rights. The paper concludes with a comparative study of the Rights mentioned and guaranteed in the American Convention of Human Rights and the Rights mentioned and guaranteed in the Indian Constitution.

INTRODUCTION

The American Convention on Human Rights is covenant that was initially signed and ratified on the 22nd^ day of November, 1969, by 25 Member States of the Organization of American States, out of which 2 States have denounced the Covenant, thereby making 23 Member States to the American Convention on Human Rights. It came into force on the 18th^ day of July, 1978 throughout the regions of Member States. It was signed at San Jose, Costa Rica and therefore it is commonly called as the Pact of San Jose. The entire Covenant is protected and guarded by the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights, hand in hand. The very purpose of this Covenant is to bring social order and justice through the enhancement and promotion of the Human Rights in the whole region of South America and parts of North America. The recognition of human rights along with the basic freedoms and liberty of individuals can develop the living standard of humans.

sentences also. It also gives the right against torture and cruelty by any means of punishment or legal procedures and any punishments that shall restrict the right of personal liberty of a human. The Article 6 guarantees the right against Slavery which is one of the essential freedoms for an independent individual. It also speaks about the freedom against human trafficking, human exploitation and forced labor. The right to personal liberty and security is guaranteed through Article 7 along with right against illegal arrests and detention. It also speaks about the procedures to be carried out by the officials while arresting and after arresting. One of the principles of Natural Justice, Audi Alteram Partem is incorporated in the Article 8 which gives the right to Fair Trail. The right against self incrimination and double jeopardy is also mentioned in this Article. Article 9 speaks about the Freedom from Ex-Post Facto Laws and the Right to compensation for the damage is mentioned in Article 10. The Right to Privacy with respect and dignity is mentioned in Article 11. The Freedoms of Religion, Conscience, Thought, Expression, Reply, Assembly, Association, and Family Rights, to have a Name, to move and reside are guaranteed under Articles 12 to 18 and Article 22 respectively. The protection of children is a right under Article 19. Right to have Nationality is given under Article 20. The Right to Property and utilizing it is guaranteed by Article 21. The right to vote and to be elected in elections is given by Article 23. The Equal protection and judicial protection rights are mentioned in Articles 24 and 25 respectively. CHAPTER III: ECONOMIC, SOCIAL AND CULTURAL RIGHTS According to Article 26 the States are free to adopt any measures that shall develop the economical, social and cultural standards of the individuals and state as a whole, until and unless it does not affect any rights of the individuals. CHAPTER IV: SUSPENSION OF GUARANTEES, INTERPRETATION AND APPLICATION Article 27 states that the State can make any measures irrespective of these guarantees when there is an imposed danger to the lives of the State or during any Emergency Periods of the State, until it does not affect the right to life and humane treatment, Freedom from Slavery and Ex Post Laws and the like. Though the State is Federal in nature, the Central Government shall make sure the states are in accordance to the Provisions of this Covenant and it is known as the Federal Clause under Article 28. According to Article 29, no State shall make any interpretation of the covenant in such a manner that it abrogates the rights guaranteed under this Covenant. The Articles 30 and 31 speaks about the extents of restriction and the other rights which are not enumerated in this Covenant.

CHAPTER V: PERSONAL RESPONSIBILITIES

Article 32 brings out the relationship between the rights and duties, which states that every human has certain rights and duties to each other and they are limited by the same also for the public welfare and societal order.

PART II: MEANS OF PROTECTION

This Part of the Covenant speaks about the enforceability of the rights that are guaranteed by the foregoing provisions just like the Constitutional Remedies available for the citizens of India given by the Part III of the Indian Constitution. CHAPTER VI: COMPETENT ORGANS According to Article 33 recognizes the two Organs that are the Executing Authorities who shall enforce the Human Rights that are made available to the State Parties through this Covenant. The two Organs are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. CHAPTER VII: INTER-AMERICAN COMMISSION ON HUMAN RIGHTS SECTION 1: ORGANIZATION The Articles 34 to 40 gives the provisions to have the Inter-American Commission on Human Rights. It gives the various criterions for the members of the Commission, the procedures of Election and states that these members shall be selected by the General Assembly of the Organization. It mentions that 4 years is the tenure and the same person can be re elected one more time only. The Article 39 states that they shall make their own Statutes subjected to the approval of their General Assembly. It also has a Secretary General for the General Secretariat of the Organization. SECTION 2: FUNCTIONS The Articles 41 to 43 gives the essential functions that are to be performed by this Commission. Their primary role is to enforce, defend and protect the Human Rights. The States of the American Union have to furnish this Commission with all required details and data to adjudge the matter brought before the Commission. SECTION 3: COMPETENCE The Articles 44 to 47 speaks about who can approach the Commission to enforce their Rights and according to which any person or group of persons who are members of this Covenant can approach this Commission. The rights can be enforced by the mode of filing a petition or

CHAPTER IX: COMMON PROVISIONS

The Articles 70 to 73 speaks about the immunities that are given to the Judges of the Court and the members of the Commission, as that of the diplomatic envoys in relation to the International Law provisions. These people of High Ranking shall be given travel allowances and emoluments according their own Statutes.

PART III: GENERAL AND TRANSITORY PROVISIONS

CHAPTER X: SIGNATURE, RATIFICATION, RESERVATIONS, AMENDMENTS,

PROTOCOLS AND DENUNCIATION

The Articles 74 to 78 deals with the procedures of becoming a member party to the Covenant, ratification of the Covenant, Amendments and Denunciation of the Covenant. All the Domestic States of the American Union shall become the members to this covenant by signing and ratifying the same. The Covenant shall also be subjected to Amendments according to changes and the trends of the society and the proposal to it shall be made before the General Assembly of the Organization. It shall be amended with a simple majority of two-thirds in the General Assembly by all the Party States. New Protocols in relation to this Covenant shall be made to enhance the rights mentioned in this Covenant complying with the procedures of Article 31. The Party States can also denounce their acceptance of the Covenant with a completion of 5 years from its entry in the Convention by issuing a notice one year in advance to its exit. CHAPTER XI: TRANSITORY PROVISIONS SECTION 1: INTER-AMERICAN COMMISSION ON HUMAN RIGHTS The Articles 79 and 80 speaks about the procedures of admitting and electing new Members to the Inter-American Commission on Human Rights. The Secretary General shall collect a list of the proposed members who shall compete for the membership and conduct an election with secret ballot. The Member who gets the maximum votes and has absolute majority from his own nation, he shall be appointed as the Member of the Commission. SECTION 2: INTER-AMERICAN COURT OF HUMAN RIGHTS The Articles 81 and 82 speaks about the procedures of admitting and electing new members to the Inter-American Court of Human Rights. The Secretary General shall collect a list of the proposed members who shall compete for the membership and conduct an election with secret ballot. The Member who gets the maximum votes and has absolute majority from his own nation, he shall be appointed as the Member of the Commission.

CONCLUSION

The provision of two domestic systems for the protection and enhancement of human rights marks the importance of the scope of Human Rights which vitally consists of fundamental freedoms and personal liberty. The American Convention on Human Rights has various provisions that guarantee various list of enumerated rights same as that of the Fundamental Rights and the Legal Rights enshrined by the Indian Constitution to the Indian citizens in its Part III and the other provisions. The concepts of Right to Life and Personal Liberty are found in the Article 21 of the Indian Constitution and the same is available in Article 4 of this Covenant. The freedoms of movement, religion, expression, assembly, to form trade unions and residence etc., are also found in the Articles of the Indian Constitution. The Right against Illegal Detention and Arbitrary Arrests are found in the Article 20 of the Indian Constitution. The Rights of an Arrested person such as Right against Self Incrimination, Double Jeopardy and Ex-Post Facto Laws are found in the Article 22 of the Indian Constitution. There are other provisions in the Indian Constitution that are similar to that of the American Convention on Human Rights. This marks that the American Union and the Indian Sub- Continent are very particular in the matter of Human Rights and are States that work hand in hand with the International Institutions of Human Rights in the enhancement and promotion of Human Rights in the international and regional levels.