SECTION 10: STRATEGIES AND TOOLS - REGIONAL LEVEL
THE INTER-AMERICAN SYSTEM FOR
THE PROTECTION OF HUMAN RIGHTS AND ESC RIGHTS
The Purpose of Module 30
The purpose of this module is to provide an overview of possibilities for the protection of ESC rights within the Inter-American system.
Specific Provisions of the Inter-American System in the Area of ESC Rights
The Ninth International Conference of American States, held in Bogotá in 1948, in addition to constituting the Organization of American States (OAS), also approved the American Declaration of the Rights and Duties of Man and an Inter-American Charter of Social Guarantees. The content of the American Declaration is similar to that of the Universal Declaration of Human Rights, adopted in the same year.
Later, the OAS began work on a treaty that set forth fundamental rights and freedoms, in response to the need to define their content, as well as their scope and limitations, in precise terms and to create more effective mechanisms for their protection. At present, the Inter-American system for the protection of human rights has a normative basis consisting of several instruments: the American Declaration of the Rights and Duties of Man  and the American Convention on Human Rights;  the Protocol to the American Convention on Human Rights on the Abolition of the Death Penalty;  the Inter-American Convention to Prevent and Punish Torture;  the Inter-American Convention on Forced Disappearance of Persons;  the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women;  and the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San Salvador), which recently entered into force. 
The American Declaration recognizes a series of civil, political, economic, social and cultural rights. It includes economic and social rights such as the right to protection for maternity and childhood (art. 7), the right to preserve ones health and well-being (art. 11), the right to education (art. 12), the right to the benefits of culture (art. 13), the right to employment and fair remuneration (art. 14), the right to rest and leisure (art. 15), and the right to social security (art. 16).
The American Convention recognizes a wide array of civil and political rights, and does not explicitly spell out the ESC rights of individuals under the jurisdiction of the states parties. However, it does include a generic formulation that refers back to the provisions on ESC rights in the OAS Charter. In chapter III, article 26, under the heading "Progressive Development, it prescribes:
This article sets forth an obligation that is not very different from that in the ICESCR.  Thus, and as established by the Inter-American Court of Human Rights, the supervisory organs of both the American Declaration and the American Convention should interpret the obligations arising from these two texts in light of the provisions in the ICESCR. The Inter-American Court of Human Rights has held that
In interpreting article 29(b) of the American Convention, the Court concluded that "if in the same situation both the American Convention and another international treaty are applicable, the rule most favorable to the individual must prevail. 
Another instrument that sets forth ESC rights is the Inter-American Charter of Social Guarantees. When adopted, the Charter represented a considerable advancement in workers rights. Nonetheless, given the scant support of states, at present it is of limited, declaratory value. 
The Charter of the OAS, as amended by the Protocol of Buenos Aires in 1967, incorporated certain relevant provisions. Articles 33, 44 and 48 were added at that time. Article 33 establishes the basic goals of the American states, offering a frame of reference for interpreting rights. Among the objectives set forth are fair wages, acceptable working conditions, eradicating illiteracy and adequate nutrition and housing. Article 44 expressly articulates the following rights: the right to work (including fair wages and the right to social security), freedom of association (including the right to strike and the right to collective bargaining), and the right of all persons to legal assistance to secure their rights.
In the context of the OAS Charter, special mention should be made of the existence of inter-American specialized agencies in education, development and health, namely the Inter-American Council for Education, Science and Culture, the Inter-American Economic and Social Council and the Pan American Health Organization. However, a framework defined by reference to human rights does not guide the activities of these bodies, and in any event they have had limited impact.
The Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San Salvador) was adopted in 1988, and as mentioned, has recently entered into force.  The Protocol sets forth the right to work (art. 6), the right to just, equitable and satisfactory conditions of work (art. 7), trade union rights (art. 8), the right to social security (art. 9), the right to health (art. 10), the right to a healthy environment (art. 11), the right to food (art. 12), the right to education (art. 13), the right to the benefits of culture (art. 14), the right to the formation and the protection of families (art. 15), the rights of children (art. 16), and the protection of the elderly (art. 17) and of the handicapped (art. 18). In addition, the possibility of incorporating other rights, and expanding those already recognized, is left open. 
The Protocol stipulates the obligation of the states parties "to adopt the necessary measures, both domestically and through international cooperation, especially economic and technical, to the extent allowed by their available resources, and taking into account their degree of development, for the purpose of achieving progressively and pursuant to their internal legislation, the full observance of the rights recognized in this Protocol. Evidently, the concepts contained in the expressions "to the extent allowed by their available resources and "progressively were drawn from article 2 of the ICESCR and article 26 of the American Convention on Human Rights.
The Protocol of San Salvador represents a clear advance in setting forth ESC rights as compared to the treatment of these rights in the Declaration and the Convention. The content of the rights and obligations undertaken by states is defined with greater specificity. In addition, the ESC rights set forth in the Declaration may be interpreted in light of the provisions on such rights in the Protocol, by application of the principle of pro homine.
Mechanisms for the Protection of Human Rights in the Inter-American System
Both the American Declaration and the American Convention, like the Protocol of San Salvador, recognize the Inter-American Commission on Human Rights (IACHR)  as the supervisory organ, while the Convention established a second supervisory organ, the Inter-American Court of Human Rights. 
In the Inter-American system, the first supervisory body with powers to process individual petitions, the IACHR, was not recognized by treaty, but through a resolution of the Fifth Meeting of Consultation of Ministers of Foreign Affairs, held in Santiago, Chile, in 1959. This resolution gave the IACHR the function of promoting respect for human rights. In 1966, the Commission was authorized to hear individual complaints against member states of the OAS alleging the violation of a right protected by the American Declaration. The Commission "thus became the first international body to process individual petitions without the existence of a human rights treaty recognizing its jurisdiction. 
Later, in 1969, the adoption of the American Convention gave the IACHR certain areas of competency, and established a second supervisory body, judicial in nature-the Inter-American Court of Human Rights-whose jurisdiction may be recognized by the states in an independent declaration. 
The Protocol of San Salvador provides for a system of individual petitions (regulated by articles 44-51 and 61-69 of the American Convention) that is reserved for certain rights, namely trade union rights (art. 8(a) of the Protocol) and the right to education (art. 13).
The fact that the petition system can be used only to uphold trade union rights and the right to education represents clear backsliding with respect to the possibilities offered today by the American Declaration and the American Convention. It would seem that a potentially restrictive interpretation by the IACHR or the Court so as to limit the system of individual petitions to only those rights provided for by the Protocol would be contrary to the provisions of the American Convention (art. 29) and consequently to the principle of pro homine.
Petitions to the IACHR
Petitions to the IACHR must meet certain formal and substantive requirements. The formal requirements are as follows:
For the purposes of submitting a complaint, the IACHR has prepared a simple form that does not require the assistance of an attorney. Of course, this is without prejudice to the petitioners right to designate an attorney or other representative in the complaint itself or in another document.
The substantive requirements that must be met are:
As regards standing to bring a petition, any person, group of persons, or nongovernmental entity legally recognized in one or more member states of the OAS may have access to the IACHR, submitting petitions that contain allegations of the violation of rights protected in the American Declaration, the American Convention, the Protocol of San Salvador and all the other treaties mentioned above. 
The Inter-American system does not require any link whatsoever between the person and the petitioner, when the petitioner is a person or group of persons. The IACHR may choose not to reveal the identity of the complainant in its communication with the state based on the complainants express and justified request. 
Once the IACHR establishes that the state has violated the rights recognized in the treaties in question, it issues recommendations to the state to remedy the violation. In this regard, it should be noted that the states have the obligation to make their most serious efforts to carry out the recommendations made by the IACHR. This duty is incorporated into articles 33 and 50 of the Convention and is based on the principle of pacta sunt servanda, and on the principles of interpretation spelled out in this respect by the Inter-American Court of Human Rights. In the Loayza Tamayo case, the Court stated that
It also held:
The IACHR is furthermore endowed with the function of promoting the observance and defense of human rights both in the member states of the OAS and in states parties to the American Convention. The statute includes the following functions and attributes in the exercise of the IACHRs mandate with respect to both sets of states:
As part of the promotion function, both the American Convention and the IACHRs Regulations include provisions that refer specifically to ESC rights. In this regard, article 42 of the Convention provides:
For its part, article 64 of the Regulations provides:
The Protocol of San Salvador includes a reporting system. Pursuant to article 19 of the Protocol, the states parties must submit periodic reports on the progressive steps taken to achieve the realization of the rights set forth in the text. This article also authorizes the IACHR to make observations and recommendations on the situation of ESC rights.
With regard to the Inter-American Court, in the case of matters in contention, it is the IACHR and the interested state that have standing to submit a case.  Its final decision is binding on the state. In addition, the Court has been recognized to have advisory jurisdiction. Member states of the OAS, as well as the organs listed in chapter 10 of the OAS Charter, may consult the Court on interpretation of the provisions of the Convention or other treaties on the protection of human rights in the American states.  In addition, at the request of a member state of the OAS, the Court may advise it as to the compatibility of any of its internal laws with the above-mentioned international instruments. 
Status and Prospects for the Protection of ESC Rights in the Inter-American System
To date, the real effectiveness of the Inter-American system in ESC rights has been practically nil. In part this is because in recent decades the supervisory bodies were focused on the massive and systematic violations of civil and political rights that occurred under the fierce military dictatorships in many Latin American countries. In this context, ESC rights have not been a common subject of complaints before the Inter-American Commission on Human Rights.  Nonetheless, the supervisory organs clearly neglected the functions they were supposed to exercise in respect of ESC rights. Bearing in mind that the dictatorships have been replaced by democratic systems, the Inter-American system of protection has yet to adopt the urgent task of achieving the progressive realization of ESC rights as a serious objective.
The work of the Inter-American Commission on Human Rights
Individual petitions: In the framework of the system of individual petitions, as already noted, the IACHR has done practically nothing to ensure the effective protection of ESC rights. Almost all of the reports prepared on individual cases refer to civil and political rights.
In most of the cases in which the IACHR has recognized a violation of ESC rights, it begins by taking note of violations of civil and political rights. The following cases are illustrative of this approach. In case No. 6091 (Cuba), the IACHR considered that the victim was tortured repeatedly while jailed and held Cuba liable for violating the right to the preservation of health and well-being (art. 11 of the Declaration);  in case No. 2137 (Argentina), in which a presidential decree ordered that all activities of Jehovahs Witnesses cease, the IACHR held Argentina responsible for violating the right to education, article 12 of the Declaration, in the context of the right to assembly. 
Case No. 7615 (Brazil) is important in so far as the IACHR analyzes the violation of ESC rights separately.  In this case, a development plan promoted by the government of Brazil to exploit resources in the Amazon region had led to the construction of a highway that cut through the territory of the Yanomami Indians. The massive penetration of outsiders into the indigenous territory has had grave repercussions on the well-being of the community, involving the breakdown of their traditional organization, introducing prostitution, epidemics and diseases, the loss of lands, the forced displacement to lands that are not adequate for their way of life, and the deaths of hundreds of Yanomami. The IACHR noted: "That those invasions were carried out without prior and adequate protection for the safety and health of the Yanomami Indians, which resulted in a considerable number of deaths caused by epidemics of influenza, tuberculosis, measles, venereal diseases and others; That Indian inhabitants of various villages near the route of highway abandoned their villages and were changed into beggars or prostitutes, without the Government of Brazils taking the necessary measures to prevent this.  The IACHR ruled that the failure of the government of Brazil to adopt timely and effective measures on behalf of the Yanomami people had repercussions on the well-being of the community. The IACHR held the government of Brazil responsible for violations of the rights to life, liberty and personal security, the rights to residence and travel and the right to the preservation of health and well-being. 
Reports: The IACHR is also empowered to produce and request reports on the human rights situation in the member states of the OAS, to assess the degree of implementation of the states obligations and to make recommendations as it sees fit. While the core of the reports has historically been an evaluation of compliance with the obligations in respect of civil and political rights, on some occasions the IACHR has considered the situation of ESC rights based on the rights set forth in the American Declaration.
The IACHR has often expressed the concept of the indivisibility of human rights. In the context of debates on the draft Protocol, the IACHR stated:
In its 1978 Report on the Situation of Human Rights in El Salvador, the IACHR noted:
Among its conclusions, the IACHR stated:
The following year, in its report on Haiti, the IACHR gave consideration to the rights to education, health and work, whereupon it concluded:
In its Annual Report, 1979-1980, the IACHR underscored the organic relationship between civil and political rights, and economic, social and cultural rights, as follows:
After recognizing that extreme poverty of the masses of the population-resulting in part from very unequal distribution of productive resources-has been the fundamental cause of the terror that afflicted and continues to afflict those countries, the IACHR limited its own powers to assess the extent to which these rights are implemented. It held, in effect, that:
In summary, the IACHRs formulations with respect to ESC rights have been generic. It has not made a serious effort to specify the content of the obligations in this regard, nor has it taken into account the specific contours of each right.  Unfortunately, "the studies done to date merely transcribe some of the reports submitted by the states to other organs of the OAS on the socio-economic status of their countries, providing macroeconomic figures, most of which are out-of-date; the IACHR has not used this opportunity to develop a systematic approach. 
Nonetheless, it has been argued that "there are signs that the Inter-American Commission is willing to give more careful consideration to the situation of economic, social and cultural rights, at least in the states parties to the American Convention.  . In its 1991 Annual Report, for example, it gave special attention to such rights based on the reports presented by some member states of the OAS (Chile, Mexico, Argentina, Colombia, Jamaica, Dominican Republic and Costa Rica) to international agencies, and on a study by the Pan American Health Organization (PAHO). 
In conclusion, the work of the IACHR in this area has truly been deficient. While one may observe a faint indication of change, in view of the current socioeconomic situation in the vast majority of the countries of the Americas, the work of the IACHR in this area should have been substantially different from what it has been to date.
The work of the Inter-American Court of Human Rights
The case law of the Inter-American Court of Human Rights with respect to ESC rights, under its contentious jurisdiction, is nonexistent. Even so, the Court has issued opinions on the justiciability of ESC rights in the context of its general pronouncements and under its advisory jurisdiction.
During the drafting of the Protocol of San Salvador, the Court was asked whether ESC rights could be subjected to judicial or quasi-judicial examination. It stated that they
With regard to justiciability, the Court said:
It goes on to add: "Some economic, social and cultural rights cannot be protected by a judicial or quasi-judicial system identical to the present system to protect civil and political rights.45
The general lines offered by the Court are contrary to the doctrine that is being established by the UN Committee on Economic, Social and Cultural Rights. In addition, in the formulation stated above the Court appears to ignore that the Convention has given jurisdiction to both the IACHR and the Court in respect of ESC rights.
The Courts advisory jurisdiction has not been used directly by the actors with standing to do so to spell out the obligations of the states in the area of ESC rights nor their specific contents. The Court itself has indicated that it would view this as a positive way to contribute to the observance of this grouping of rights. In this respect, the Court has said:
While, as noted, the Court has not issued any advisory opinion directly related ESC rights, Advisory Opinion 11/199047 is important in view of its broad interpretation of civil and political rights, which touches on ESC rights. The consultation refers to the rule of prior exhaustion of domestic remedies in the framework of the mechanism for individual petitioners in relation to indigents who have no access to the legal system to protect rights guaranteed by the Convention. The Court stipulated:
Consequently, with respect to the right of access to justice guaranteed by articles 8 and 25 of the Convention, the state would have the obligation to make effective such access with regard to those indigent persons, removing the material obstacles that cause the impediment. In addition, that opinion considered that a person suffers discrimination when, because of his or her economic position, s/he does not have access to the courts of justice. The Court said, in this regard:
To date, the organs of the Inter-American system have not made a commitment to safeguard ESC rights. As noted above, the individual petition mechanism has gone virtually unused as a way to call for compliance. Human rights groups face the urgent task of helping to address the imbalance between ESC rights, on the one hand, and civil and political rights, on the other, in the normative provisions and in practice. Taking up this task requires a systematic study of the possibilities offered by the system, and the consequent mapping out of possible strategies for achieving the effective observance of these rights.
The Inter-American system, unlike the international and European systems, has an invaluable advantage, which is the possibility of alleging violations by the states via the submission of individual petitions. In this regard, we can mention the following possible strategies for enforcement before the IACHR:
Author: The author of this module is Julieta Rossi.
1.Adopted at the Ninth International Conference of American States, held in Bogotá, Colombia, in 1948, along with the Charter of the Organization of American States (OAS).
2. Adopted at the Inter-American Specialized Conference on Human Rights, in San José, Costa Rica, in 1969, and in effect since 18 July 1978, pursuant to article 74(2) of the American Convention.
3. Adopted in Asunción, Paraguay, on 8 June 1990, at the Twentieth Regular Session of the OAS General Assembly, and in force since 28 August 1991.
4. Signed in Cartagena, Colombia, 9 December 1985, at the Fifteenth Regular Session of the OAS General Assembly, and in force since 28 February 1987.
5. Adopted at Belém do Pará, Brazil, on 9 June 1994, at the Twenty-fourth Regular Session of the OAS General Assembly, and in force since 29 March 1991.
6. Adopted at Belém do Pará, Brazil, on 9 June 1994, at the Twenty-fourth Regular Session of the OAS General Assembly, and in force since 5 March 1995.
7. Signed in San Salvador, El Salvador, 17 November 1988, at the Eighteenth Regular Session of the General Assembly, and in force since 16 November 1999.
8. Chapter VII of the Charter of the Organization of American States is on economic standards, chapter VIII on social standards, and chapter IX on educational, scientific, and cultural standards.
9. Michael J. Reed Hurtado, "Los derechos económicos, sociales y culturales en el sistema interamericano de derechos humanos, Seminar on Economic, Social and Cultural Rights, Bogotá, Colombia, May 1996 (International Commission of Jurists, May 1996), 65.
10. Inter-American Court of Human Rights, Advisory Opinion OC-5/85 of 13 November 1985, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (arts. 13 and 29 of the American Convention on Human Rights), Series A, No. 5, para. 55.
11. Inter-American Court of Human Rights, Advisory Opinion OC-5/85, para. 52.
12. Reed Hurtado, op. cit.
13. Signed in San Salvador, El Salvador, 17 November 1988, at the Eighteenth Regular Session of the OAS General Assembly.
14. See Antonio A. Cançado Trindade, "A justiciabilidade dos direitos economicos, sociais e culturais no plano internacional, in Presente y Futuro de los Derechos Humanos: Ensayos en honor a Fernando Volio Jiménez (San José, Costa Rica: Inter-American Institute of Human Rights, 1998), 190.
15. Statute of the Inter-American Commission on Human Rights, adopted by Resolution 447 of the OAS General Assembly at its Ninth Regular Session, held in La Paz, Bolivia, October 1979, arts. 19(a) and 20(b). Regulations of the Inter-American Commission on Human Rights, adopted by the Commission at its Forty-ninth Session, in session 660, held 8 April 1980, and modified at its Sixty-fourth Session, in session 840, held 7 March 1985; at its Seventieth Session, in session 938, held 29 June 1987; at its Ninetieth Session, in session 1282, held 21 September 1995; and at its Ninety-second Special Session, in session 1311, held 3 May 1996, arts. 31 and 51.
16. American Convention on Human Rights (hereafter cited as American Convention), article 33.
17. Mónica Pinto, La denuncia ante la Commission Interamericana de Derechos Humanos (Buenos Aires: Del Puerto, 1993), 28.
18. American Convention, article 62.
19. Resolution No. 11/84, Case No. 9274, Annual Report of the IACHR 1984-1985, OEA/Ser.L/V/II.66 doc. 10 rev. 1, 127.
20. American Convention, article 46(1)(a); IACHR Regulations, article 37(1).
21. American Convention, article 46(2); IACHR Regulations, article 37(2).
22. American Convention, article 46(1)(b); IACHR Regulations, articles 38(1), 52, and 38(2).
23. American Convention, article 46(1)(c); IACHR Regulations, article 39(2)(a) and (b).
24. American Convention, article 44; IACHR Regulations, article 26(1).
25. IACHR Regulations, article 34(4).
26. Inter-American Court of Human Rights, Case of Loayza Tamayo, Judgment of 17 September 1997, Series C No. 33, para. 80.
27. Inter-American Court of Human Rights, Case of Loayza Tamayo, para. 81.
28. American Convention, article 51.
29. American Convention, article 64(1).
30. American Convention, article 64(2).
31. Victor Ambramovich, "Los derechos económicos, sociales y culturales en la denuncia ante la Comisión Interamericana de Derechos Humanos, in Presente y Futuro de los Derechos Humanos: Ensayos en honor a FernandoVolio Jiménez, op. cit., 137.
32. IACHR, Capote RodrRguez, Resolution No. 3/82, Case 6091, Cuba, March 8, 1982, OAS/Ser.L/V/II.57, 20 September 1982.
33. IACHR, Case 2137, Argentina, OEA/Ser.L/V/II.47, doc. 13, rev.1, 29 June 1979.
34. Inter-American Commission on Human Rights, Case No. 7615 (Brazil), Annual Report, 1984-1985, 24-34.
35. Ibid., 32.
36. Ibid., 33.
37. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in El Salvador, OEA/Ser.L/V/II.45, Doc. 23, Rev.1, 17 November 1978, 162.
38. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in El Salvador, OEA/Ser.L/V/II.46, Doc. 23, Rev. 1, 17 November 1978, 162-66.
39. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Haiti, OEA/Ser.L/V/II.46, Doc. 46, Rev. 1, 12 December 1979, 76.
40. Inter-American Commission of Human Rights, Annual Report 1979-1980, OEA/Ser.L/V/II.50, Doc. 13, Rev.1, 1980, 151.
42. Similar criticisms have been made by Reed Hurtado, op. cit., 73 and 74.
43. Reed Hurtado, op. cit., 79.
44. Cançado Trindade, op. cit, 190-91.
45 Inter-American Commission on Human Rights, Annual Report 1991, OEA/Ser.L/V/II.81 Rev. 1, Doc. 6. The Commission has stated: "The IACHR has prepared this preliminary study on the status of economic, social and cultural rights in the hemisphere in response to the recommendation contained in paragraph 15 of Resolution AG/RES. 1044, adopted by the General Assembly of the Organization of American States at its twentieth regular session, held in Asunción, Paraguay, from June 4 to 9, 1990. The information on the situation of these rights is based on reports presented by a number of States to international agencies and a study conducted by the Pan American Health Organization. The first point to be noted is that implementation and effective respect for economic, social and cultural rights has been hampered by difficulties stemming from the economic crisis faced by the countries of the Inter-American system. Since promoting and bringing about effective respect for these rights is a progressive process, in step with each member countrys development, the requirement to implement them has been tied to each governments effective capacity to do so. It should be noted also that, especially for the countries of the Latin American region, the decade of the 1980s was, as it has been called, the lost decade because most of them had to contend with the debt crisis and their consequent further impoverishment. For that reason the external debt issue has been mentioned as one more obstacle to implementing those rights. Attention is also drawn to a number of reports by international agencies which point out that many Latin American countries used the external loan resources that gave rise to the debt to buy arms. (302-303).
46. Inter-American Court of Human Rights, Annual Report 1986, OEA/Ser.L/III.15, Doc. 13, 29 August 1986, 42.
47. Ibid., 43.
48. Ibid., 45.
49. Inter-American Court of Human Rights, Advisory Opinion OC-11/90, of 10 August 1990. Series A, No. 11, Exceptions to the Exhaustion of Domestic Remedies.
50. Ibid., para. 31.
51. Ibid., paras. 22-23.
52. These possible strategies of enforcement of economic, social and cultural rights are developed in fuller form in the paper prepared by the author entitled "Strategies for Enforcing Economic, Social and Cultural Rights also presented in the March 1999 IHRIP/Forum-Asia workshop on Phi Phi Island, Thailand (see Preface).