Throughout the series on Human Rights on the IDP Blog, we discussed the importance and hierarchical status that treaties and conventions on Human Rights have assumed in the Brazilian legal system.

We address two myths about Human Rights that we need to debunk, and we present the Universal and Regional European and African Human Rights Systems.

We are dedicating ourselves exclusively, at this time, to the Inter-American System of Human Rights, of which Brazil is a part.

Let's get to know each other!

Human Rights and the Organization of American States

Human rights can be considered rights that go beyond fundamental constitutional rights.

This is because, while it is generally necessary to be a citizen of a particular country to enjoy certain rights, Human Rights go beyond the national protection afforded and guarantee more comprehensive protection.

As we saw on the IDP Blog , human rights guarantees are supplementary or secondary to those of the individual's country of origin.

In other words, if the country of origin does not offer certain protection, International Human Rights Protection Systems must act to ensure that this guarantee is made effective.

The Inter-American System of Human Rights is a regional structure for the protection of human rights that was created in 1948 with the signing of the Charter of the Organization of American States (OAS).

The Charter establishes the commitment of member states to the protection and promotion of Human Rights. Its provisions are binding. It sets out principles and objectives to be pursued, as well as specific rights.

The OAS is currently comprised of all 35 independent states of the Americas, including the United States, Canada, Brazil, Mexico, and Argentina. OAS member countries agree to respect human rights and the decisions of the bodies of the Inter-American Human Rights System.

According to IDP professor Flávia Piovesan, the OAS structures its activities around four pillars:

• Strengthening democracy;
• Promotion of Human Rights;
• multidimensional hemispheric security; and
• comprehensive economic and social development.

To achieve these objectives, the OAS carries out a series of activities, including meetings of leaders and authorities, discussions on regional issues, technical cooperation programs, and humanitarian aid in cases of natural disasters.

Furthermore, the OAS is responsible for the creation and administration of the Inter-American Human Rights System. It also administers the Permanent Council, the General Assembly, and the General Secretariat, which are the main organs of the Organization.

The System's objective is to promote and protect Human Rights in all countries of the Americas. It is composed of several bodies, including the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, which we will discuss shortly.

The system helps promote government accountability for human rights and provides a recourse avenue for victims of such violations.

The American Convention on Human Rights: a look at the main instrument of the OAS.

The American Convention on Human Rights , also known as the Pact of San Jose, Costa Rica, is an international human rights treaty adopted in 1969 by the OAS. It establishes binding obligations for the States Parties.

The treaty entered into force in 1978 and is currently ratified by 23 of the 35 OAS member countries. Brazil ratified the treaty in November 1992.

The Convention establishes a set of fundamental rights and guarantees that must be protected by OAS member countries. These include the right to life, liberty, equality before the law, freedom of expression and assembly, protection against torture and ill-treatment, and the right to due process of law.

Some specific rights have been recognized by the interpretation that the Inter-American Court gives to the Convention.

One example is sexual orientation as a category of non-discrimination , as stated in Article 1 of the Convention:

"The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without discrimination of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

The American Convention on Human Rights is an important instrument for the promotion and protection of human rights in the Americas. It has been used as a basis for the defense of human rights in cases brought before the Inter-American Commission and Court of Human Rights.

It is worth noting that the interpretation rules of the American Convention also enshrine the primacy of the rule most favorable to human beings, known as the pro homine principle.

The Convention expressly states that none of its provisions may be interpreted in such a way as to limit or exclude the Human Rights established therein, by other international treaties, or by the domestic laws of the States Parties.

Inter-American Commission on Human Rights: what are its main functions?

The Inter-American Commission on Human Rights is an autonomous body of the OAS whose function is to promote the protection and defense of human rights in the Americas. It was created in 1959 and is headquartered in Washington, D.C., in the United States.

Its main functions include receiving complaints of human rights violations, conducting visits to countries in the region, promoting the development of norms and standards in the field of human rights, and carrying out studies and reports on the human rights situation in OAS member countries.

The Commission last visited Brazil in 2018 and published a report diagnosing the human rights situation there up to December 2019.

The OAS member states recognize the Commission's jurisdiction to receive and examine individual and collective complaints of human rights violations, as well as to issue recommendations to States for the protection and promotion of these rights.

The Commission's recommendations are not binding, but they carry significant political, symbolic, and moral weight in the region.

Individuals and organizations can also file complaints with the Commission regarding human rights violations committed by governments or individuals in OAS member countries.

If the Commission is unable to resolve the complaint, it may be taken to the Court for a final decision.

Inter-American Court of Human Rights and its decisions: is Brazil obligated to observe them?

The Inter-American Court of Human Rights is an autonomous judicial body of the OAS, created in 1979, with headquarters in San José, Costa Rica. 

It is responsible for overseeing compliance with the American Convention, interpreting and applying the Convention and other legal instruments related to the protection of Human Rights in the Americas. 

Another function is to investigate and prosecute cases of human rights violations and issue advisory opinions on matters related to these rights.

In exercising its advisory role, it formulates Advisory Opinions, through which it clarifies doubts regarding the interpretation of the Convention and other treaties for the protection of Human Rights.

States may also consult the Court regarding the compatibility between their domestic legislation and their international human rights obligations.

In its contentious jurisdiction, the Court hears cases to determine the existence of international responsibility of a State for violation of the Convention. This jurisdiction can only be exercised in relation to States that have recognized the Court's contentious jurisdiction.

The contentious jurisdiction of the Court was recognized by Brazil only in 1998.

According to Article 68.1 of the Convention, the Court's judgments are binding, meaning that the State is obliged to comply with all decisions in cases to which it is a party. Failure to comply gives rise to international responsibility for the country.

It is important to highlight that the judgment issued by the Court is international, not foreign. This means that it has immediate and binding enforceability in Brazil, without needing ratification by the Superior Court of Justice (STJ).

The Court is considered one of the main bodies for the protection of Human Rights in the Americas, and its rulings have an impact throughout the continent.

Want to learn more about this topic? At IDP's Postgraduate Program in Constitutional Law, you can deepen your knowledge of Human Rights and the International Protection of Fundamental Rights.

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References

PIOVESAN, Flávia. Course on Human Rights: Inter-American System. São Paulo: Grupo GEN, 2021.

RAMOS, André de Carvalho. International human rights process . 6th ed. São Paulo: Editora Saraiva, 2019.