A.  Historical Background of the American Declaration of the Rights and Duties of Man

1  The American Declaration of the Rights and Duties of Man was the first international human rights instrument of the modern era, adopted more than six months before the Universal Declaration of Human Rights (1948) (‘UDHR’; UNGA Res 217 A [III] [10 December 1948]). The Declaration created the basis for the development of the Inter-American system of human rights (Inter-American Commission on Human Rights [IACommHR]; Inter-American Court of Human Rights [IACtHR]).

2  The Ninth International Conference of American States adopted the Charter of the Organization of American States (Organization of American States [OAS]) and the American Declaration in 1948, in Bogotá, Colombia. However, a series of earlier Inter-American conventions, meetings, conferences, and various resolutions and declarations paved the way for the adoption of the American Declaration (see also Declaration). For example, the Eighth International Conference of American States, meeting in Lima, Peru, was held in 1938, ten years prior to the adoption of the Declaration. This conference approved several resolutions and declarations which afforded certain basic individual rights including the right to be free from race or religion based persecution and gender equality (Racial and Religious Discrimination; Equality of Individuals; Women, Rights of, International Protection). The conference also expressed the need to uphold basic principles of international humanitarian law (Humanitarian Law, International), and adopted a resolution on the freedom of association Association, Freedom of, International Protection) and freedom of expression for workers (Res VIII [21 December 1938] reprinted in Carnegie Endowment for International Peace [ed] The International Conferences of American States: First Supplement 1933–1940 [Washington 1940] 238) and the Lima Declaration in Favor of Women’s Rights (Res XX [22 December 1938] [ibid 250]), amongst others.

3  In reaction to the destruction and horror caused by World War II, the American States met in February 1945 in Mexico City at the Inter-American Conference on Problems of War and Peace determined to contribute to a new world order. The delegations attending the conference unanimously adopted two important resolutions concerning human rights: Resolution XXVII of 7 March 1945 on the Free Access to Information (reprinted in US Department of State, Report of the Delegation of the United States of America to the Inter-American Conference on Problems of War and Peace [US Government Printing Office Washington 1946] 99) and Resolution XL of 7 March 1945 on the International Protection of the Essential Rights of Man (ibid 108). The latter, considered to be the immediate predecessor of the American Declaration, proclaimed that ‘the American Republics’ would adhere ‘to the principles established by international law for safeguarding the essential rights of man’ and announced in its preamble the need to define such rights and duties, calling for the creation of a regional system for their protection (ibid 108–9). The Inter-American Juridical Committee was tasked with preparing a draft declaration on human rights, which was the basis for the American Declaration. In addition to the abovementioned instruments, the Convention regarding the Status of Aliens in the respective Territories of the Contracting Parties of 1928, the Convention Fixing the Rules to be Observed for the Granting of Asylum of 1928 (see also Aliens), and the conventions on the rights of women of 1948—the Inter-American Convention on the Granting of Political Rights to Women and the Inter-American Convention on the Granting of Civil Rights to Women—also contributed to the adoption of the Declaration.

4  The American Declaration was intended to be a first step towards a strong hemispheric system devoted to the protection of human rights. It was accepted that ‘the international protection of the rights of man should be the principal guide of an evolving American law’ (Introductory Remarks to the American Declaration), and that while the Declaration ‘establish[es] the initial system of protection’ (ibid) of essential human rights, American States ‘should increasingly strengthen that system in the international field as conditions become more favorable’ (ibid).

B.  Description of Content

5  The American Declaration consists of a preamble and two chapters. The preamble sets forth general principles, and the two chapters contain civil, political, social, cultural, and economic rights and duties. The preamble expresses the principle of human equality in dignity (Human Dignity, International Protection) and rights, asserts that human rights and the duties of man are interrelated, and declares spiritual and cultural development as the ultimate goal of every man.

6  Chapter 1 recognizes civil, political, economic, social, and cultural rights of individuals (Individuals in International Law). It also recognizes a right of asylum (Asylum, Territorial), whose inclusion in the American Declaration is not surprising considering the importance of this right in Latin America (Haya de la Torre Cases). Additionally, the final provision of this chapter—Art. 28 American Declaration—includes a general principle concerning the ‘scope of the rights of man’, establishing that ‘the rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy’.

7  The civil and political rights laid down in the Declaration are: right to life (Life, Right to, International Protection), liberty (Liberty, Right to, International Protection), and personal security (Art. 1 American Declaration); the right to equality before the law (Art. 2); the right to freedom of religion and worship (Art. 3; Religion or Belief, Freedom of, International Protection); the right to freedom of investigation, opinion, expression, and dissemination (Art. 4); the right to the protection of personal honour and reputation, and to private (Privacy, Right to, International Protection) and family life (Art. 5; Family, Right to, International Protection); the right to a family and to protection thereof (Art. 6); the right to protection of mothers and children (Art. 7); the right to residence and movement (Art. 8); the right to inviolability of the home (Art. 9); the right to the inviolability and transmission of correspondence (Art. 10); and the rights to recognition of juridical and civil rights (Art. 17); to a fair trial (Art. 18; Fair Trial, Right to, International Protection); to nationality (Art. 19); to vote (Elections, Right to Participate in, International Protection) and to participate in government (Art. 20); right of assembly (Art. 21; Assembly, Freedom of, International Protection); of association (Art. 22); right to property (Art. 23; Property, Right to, International Protection); of petition (Art. 24); of protection from arbitrary arrest (Art. 25); to due process (Art. 26); and the right of asylum (Art. 27).

8  Economic, social, and cultural rights are listed in Arts 11 to 16 American Declaration: the right to the preservation of health (Health, Right to, International Protection) and to well-being (Art. 11); the right to education (Art. 12; Education, Right to, International Protection); the right to the benefits of culture (Art. 13; Cultural Life, Right to Participate in, International Protection); the right to work (Work, Right to, International Protection) and to fair compensation (Art. 14); the right to leisure time and to the use thereof (Art. 15); and the right to social security (Art. 16; Social Security, Right to, International Protection).

9  Chapter 2 establishes the duties of man starting with Art. 29 American Declaration, which makes a general formulation, stating, that ‘[i]t is the duty of the individual to conduct himself in relation to others so that each and every one may fully form and develop his personality’. Additionally it specifically identifies the following duties: the duty to society, toward children and parents, to receive instruction, to vote, to obey the law, to serve the community and the nation, duties with respect to social security and welfare; to pay taxes, and to work; and the duty to refrain from political activities in a foreign country.

10  The American Declaration does not include a specific provision concerning emergency situations (Emergency, State of). Such provisions, as stated in other human rights instruments, typically would list non-derogable rights as well as necessary conditions required to declare an emergency and the scope of permissible restrictions to non-derogable rights during such times. The American Declaration opted for a general norm (Art. 28) that allows for the limitation of human rights contained therein without explicitly distinguishing between peace and conflict situations. Still, the wording of Art. 28 American Declaration provides for some abstract criteria to identify the limits of valid restrictions by referring to ‘the security of all, and…the just demands of the general welfare and the advancement of democracy’. It is important to consider that the American Declaration was not adopted as a legal text but as a standard of achievement, meaning that the purpose of its drafters was to create moral obligations.

C.  Legal Nature of Its Provisions

12  The IACommHR and the IACtHR have expressed that Arts 106 and 145 OAS Charter, which established the IACommHR to promote and protect human rights in the region and granted the IACommHR competence to supervise Member States’ conduct regarding human rights, give the Declaration binding force on all OAS Member States.

15  Finally, the American Declaration can be considered a source of international obligations for all OAS Member States, to the extent that some of the rights set forth in the declaration have acquired the status of customary law or even ius cogens, due to their general incorporation in domestic legislations, national constitutions, other international human rights instruments, as well as widespread State practice.

16  Examples of such provisions include

1. a)  the prohibition of arbitrary deprivation of life, as established in the UDHR; the International Covenant on Civil and Political Rights (1966) (‘ICCPR’ [adopted 19 December 1966, entered into force 23 March 1976] 999 UNTS 171); the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’ [open for signature 4 November 1950, entered in to force 3 September 1953] 213 UNTS 221), amongst others;

2. b)  the prohibition of torture (Torture, Prohibition of), established in the UDHR, the ICCPR, the ECHR, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ([adopted 10 December 1984, entered into force 26 June 1987] 1465 UNTS 85), the Inter-American Convention to Prevent and Punish Torture ([done 9 December 1985, entered into force 28 February 1987] (1986) 25 ILM 519), and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women ([adopted 9 June 1994, entered into force 5 March 1995] (1994) 33 ILM 1534), amongst others; and

3. c)  the right to a fair trial by an independent and impartial tribunal, which was established in the Geneva Conventions I–IV (1949), the UDHR, the ACHR, the ICCPR, and the ECHR, amongst others.

D.  Non-Parties to the American Convention on Human Rights

17  The Inter-American system, as originally created, was later enhanced with the adoption of the ACHR. This convention, adopted in the context of the Inter-American Specialized Conference on Human Rights in 1969, entered into force in 1978 when in accordance with Art. 74 (2) ACHR, the necessary ratifications by American States were deposited. The ACHR created the IACtHR as a jurisdictional body to supervise State compliance with the convention. Of the 35 countries in the Americas, to date 25 have ratified the ACHR and 21 of those have accepted the contentious jurisdiction of the IACtHR. The countries that have not yet ratified the convention are Antigua and Barbuda, Bahamas, Belize, Canada, Cuba, Guyana, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, and the United States of America. Trinidad and Tobago ratified the ACHR on 4 March 1991 and later on denounced it on 26 May 1998. However, all of these countries are Member States of the OAS. Particular attention should be paid to the cases of Cuba and Honduras. The government of Cuba had been excluded from the organization by resolution during the Eighth Meeting of Consultation of Ministers of Foreign Affairs in 1962 (OAS Res VI [31 January 1962] OEA/Ser.F/II.8, Doc 68, 17–19). On 3 June 2009, a new resolution on Cuba was adopted whereby the 1962 resolution ceased to have effect. It was additionally resolved ‘that the participation of the Republic of Cuba in the OAS will be the result of a process of dialogue initiated at the request of the government of Cuba, and in accordance with the practices, purposes, and principles of the OAS’ (AG/RES 2438 [XXXIX-O/09] OEA/Ser.P/XXXIX-O.2 [2009] 12). The government of Honduras, in turn, was suspended from active participation in the regional body through AG/RES. 2 (XXXVII-E/09) (OEA/Ser.P/XXXVII-E/09 [2009]) adopted at the second plenary session of the General Assembly held on 4 July 2009. The OAS cited Art. 21 Inter-American Democratic Charter ([11 September 2001] (2001) 40 ILM 1289) as grounds for the suspension following the 28 June 2009 coup d’état.

19  In accordance with the IACommHR Statute, the Member States of the OAS are subject to the American Declaration. Accordingly their compliance with the American Declaration may be supervised by the IACommHR particularly regarding those articles, identified in the Statute above. In the case of Cuba the IACommHR has decided that although the government of Cuba was excluded from the organization, the OAS did not intend to exclude the Cuban people from the protection of international human rights law. Thus, the IACommHR concluded that it retains jurisdiction ratione materiae to review individual petitions against Cuba which allege violations of a right or obligation contained in the American Declaration.

E.  Assessment

20  Before the adoption of the ACHR, the Declaration was the sole human rights standard of review to which American States were subjected. The IACommHR, primarily through visits in loco and country reports (Reporting Systems) would analyse and verify whether States were liable for violations of international law on the basis of the Declaration. When the IACommHR was not allowed to enter a particular country, it would issue a report with the available information, setting forth the applicable standards and assessing State conduct vis-à-vis the principles of the Declaration. The IACommHR’s activities, in turn, led to the adoption of legislative and constitutional changes at the national level, and contributed to the legitimacy of the human rights discourse, which ultimately led to the adoption of the ACHR.

21  The Declaration still plays a significant role in the Inter-American system of human rights, as not every country in the hemisphere has ratified the ACHR. Those States that have not ratified the ACHR are still subject to international review based on the Declaration. The IACtHR has stressed the continuing importance of the Declaration, noting in Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights (Advisory Opinion), that its power to issue advisory opinions of treaties includes the power to interpret the American Declaration. The established jurisprudence of the IACtHR states that Inter-American instruments must be interpreted in light of new developments in international law, which may be drawn from other international and regional human rights instruments, thereby greatly enhancing the Declaration’s normative value.

22  The continuing significance of the Declaration can be easily seen in the history and work of the IACommHR. The legal practice of the IACommHR during its initial years, created mainly through its special and annual reports, was later adopted and further developed by the IACtHR. Moreover, given the different time frames for the adoption and operation of the Declaration and the ACHR, the IACommHR, in numerous cases, has had to deal with situations where both instruments were applied simultaneously, the Declaration for the period preceding the adoption of the ACHR in a given case. This, in turn, has contributed to the development of a uniform and complementary interpretation of regional human rights standards and obligations.

23  The Declaration paved the way for the adoption of several other international human rights law treaties. Among those, there are the ACHR, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) ([done 14 November 1988, entered into force 16 November 1999] (1989) 28 ILM 156), the Inter-American Convention on Forced Disappearance of Persons ([done 9 June 1994, entered into force 28 March 1996] (1994) 33 ILM 1429) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.