COMPILATION OF INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY
Part III. Regional Human Rights. 3/6   
2. The Americas
The Charter of the Organization of American States established the
Organization of American States (OAS), which has among its principles and purposes the
strengthening of peace and security, ensuring peaceful settlement of disputes, providing
for a common action in the event of aggression, and promoting economic, social and
cultural development.
It also proclaims the fundamental rights of the individual without distinction as to
race, nationality, creed or sex. It was within the framework of the OAS that the
Inter-American Commission on Human Rights was established, and that the American
Declaration on the Rights and Duties of Man, as well as the American Convention
on Human Rights,were elaborated.
There is no reference regarding disability in the Charter of the Organization
of American States, but some articles might be relevant to the rights of all
persons including those with disabilities. According to article 2: "The Organization
of American States, in order to put into practice the principles on which it is founded
and to fulfil its regional obligations under the Charter of the United Nations,
proclaims the following essential purposes: (...) f) to promote by co-operative action,
their economic, social and cultural development ...".
Furthermore, article 31 states that "...to accelerate their economic and social
development (...) the Member States agree to dedicate every effort to achieve the
following basic goals: "(...) (g) Fair wages, employment opportunities and
acceptable working conditions for all; (h) rapid eradication of illiteracy and expansion
of educational opportunities for all; (i) protection of man's potential trough the
extension and application of modern medical science; (...) (k) adequate housing for
allsectors of the population; (l) urban conditions that offer opportunities for a
healthful, productive, and full life ...".
Two articles of the American Declaration of the Rights and Duties of Man
refer to general statements that apply to disabled people. Article 1 states: "Every
human being has the right to life, liberty and the security of his person."
Furthermore, article 2 provides that "...all persons are equal before the law and
have the rights and duties established in this Declaration, without distinction as to
race, sex, language, creed or any other factor." Two other articles of
the American Declaration of the Rights and Duties of Man are clearly relevant. Article XI
states that "...every person has the right tothe preservation of his health through
sanitary and social measures relating to food, clothing, housing and medical care, to the
extent permitted by public and community resources." In addition, article XVI
proclaims the right of every person to enjoy the protection of the State from the
consequences of "...unemployment, old age and any disabilities arising from causes
beyond his control that make it physically and mentally impossible for him to earn a
living." The American Declaration is binding through the O.A.S. Charter, even if
States have not ratified the American Convention. It also reflects customary law.
2.1 The Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights (IACHR) is one of three bodies in the
Inter-American System for the promotion and protection of human rights. Its mandate is
found in the Charter of the Organization of American States and the American
Convention on Human Rights. While the Charter applies to all members of the OAS,
the Convention applies only to those that have ratified it. The Inter American Commission
on Women, recently adopted the Inter American Convention for the Prevention, Punishment
and Education of Violence Against Women.
In 1965, the IACHR was expressly authorised to examine complaints or petitions
regarding specific cases of human rights violations. Up until 1997, the IACHR has received
thousands of petitions, which have resulted in 12,000 cases, which have been processed or
are currently being processed. The IACHR has the principal function of promoting the
observance and the defence of human rights.
The Commission receives a petition from any person, group of persons or
non-governmental organizations alleging violations of the rights protected in the American
Convention on Human Rights and / or the American Declaration on the
Rights and Duties of Man. The Commission may only process individual cases where
it is alleged that one of the Member States of the OAS is responsible for the human rights
violation at issue. If domestic remedies were exhausted, the petition must be presented
within six months after the final decisions in the domestic proceedings. When a case is
opened and a number is assigned, the pertinent parts of the petition are sent to the
Government with a request for relevant information. During the processing of the case,
each Party is asked to comment on the responses of the other Party. The Commission also
may carry out its own investigations, conducting on-site visits or requesting specific
information from the parties. The Commission may also hold a hearing during the processing
of the case. When the processing of the case is completed, the Commission prepares a
report, which includes its conclusions, and also generally provides recommendations to the
State concerned. This report is not public. The Commission gives the State a period of
time to resolve the situation and to comply with the recommendations of the Commission.
Upon the expiration of this period of time granted to the State, the Commission has two
options. The Commission may prepare a second report and the State is given a second period
of time to resolve the situation. Rather than preparing a second report for publication,
the Commission may decide to take the case to the Inter-American Court. If it wishes to
take the case to the Court, it must do so within three months from the date in which it
transmits its initial report to the State concerned. The Commission will appear in all
proceedings before the Court.
As detailed above, the Inter-American Commission can issue a recommendation to the
offending party to rectify the human rights situation. The Inter-American Commission also
collects and receives information about human rights violations in the country from
individuals, human rights groups and other groups, as well as the government. Every
individual or human rights group in the Americas has the right of access to this
enforcement mechanism. Access is achieved through participating in one of the
Inter-American Commission's on-site visits to a country where it is studying human rights
violations; providing information to the Commission during its study; or pressuring the
Commission to conduct such a visit. Advocates can influence both the process and the
report by directly contacting the Commission and asking it to examine human rights
violations of disabled persons.
Some of the prominent attributes of this system include the Velasquez-Rodriguez
norm which uniformly enforced throughout this system, provides that governments have an
affirmative legal obligation to investigate, prosecute and punish human rights violators
(including persons who are not agents of the government) through their national judicial
apparatus. Secondly, under the Inter-American system, the right to judicial enforcement of
human rights violations can never be "derogated from".
2.2 The Inter-American Court of Human Rights
The Ninth International Conference of American States[56],
in its resolution XXXI entitled "Inter-American Court to Protect the Rights
of Man," considered that the protection of these rights "...should be
guaranteed by a juridical organ, in as much as no right is genuinely assured unless it is
safeguarded by a competent court." and that "...where internationally recognised
rights are concerned, juridical protection, to be effective, should emanate from an
international organ."
The OAS General Assembly, in 1979, approved the Statute of the Court
(Resolution 448). Article 1 defines the Court as "...an autonomous judicial
institution whose purpose is the application and interpretation of the American
Convention on Human Rights." The Court has adjudicatory and advisory
jurisdiction. Regarding its adjudicatory jurisdiction, only the Commission and the States
Parties to the Convention are empowered to submit cases concerning the interpretation and
application of the Convention. In addition, in order for a case against a State Party to
be brought before the Court, the State Party must recognise the jurisdiction of the Court.
2.3 The Inter American Convention on Human Rights
The American Convention on Human Rights does not explicitly address
the subject of disability. However, it is referred to implicitly and contains the
classical human rights guarantees, as does the European Convention for the
Protection of Human Rights and Fundamental Freedoms, for example, article 27 (2)
forbids suspension of guarantees essential to the protection of non-derivable human
rights, among which includes the right to life, included in article 4 (1).
Article 18 of The Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social, and Cultural Rights specifically refers
to the rights of disabled persons. It states that disabled persons are entitled to special
attention to help them achieve the greatest possible development of their personality.
Pursuant to article 18, States Parties agree to undertake programs aimed at providing
disabled persons with resources needed to attain the greatest possible development of
their personality. States Parties also agree to provide special training to the families
of the handicapped.
Moreover, a Draft Inter-American Convention on the Elimination of all Forms of
Discrimination against People with Disabilities[57]is
in process and will stress, beside a definition of disability, that measures must be taken
to:
- Eliminate discrimination in all services, programs and activities provided by government
authorities
- eliminate discrimination by private entities;
- ensure that newly constructed buildings do not contain any barriers for persons with
disabilities;
- ensure that all public officials are fully trained to enforce such laws.
The aim of this draft convention is the prevention and elimination of every type of
discrimination against persons with disabilities.
2.4 Inter- American Convention on the Elimination of all forms of
Discrimination against Persons with Disabilities
The Inter American Convention on the Elimination of all Forms of Discrimination against
Persons with Disabilities was adopted by the General Assembly of the Organization of
American States in 1999. To date the Convention has been ratified by three states and
requires six instruments of ratification to come into force. The Convention is in four
parts; 1) the objectives concerning the prevention and elimination of discrimination and
the integration of persons with disabilities into society; 2) the obligations by States
parties; 3) definitions of discrimination and disability; and 4) implementation
mechanisms.
56. Held in Bogota, 1948.
57. Adopted at the Meeting of Experts to Examine
the Draft Inter American Convention on the Elimination of All Forms of Discrimination by
Reason of Disability, Washington D.C. (USA) 3 - 4 March 1998.
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