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CHAPTER
V AREAS
IN WHICH STEPS NEED TO BE TAKEN TOWARDS FULL OBSERVANCE OF
THE HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION OF THE
RIGHTS AND DUTIES OF MAN AND THE AMERICAN CONVENTION ON HUMAN RIGHTS
The analysis of the human rights situation in the States to which
the Commission has made reference in the foregoing chapter, as well as
in others where the human rights situation has been considered by the
Commission in recent years, enables the Commission to affirm that only
by means of the effective exercise of representative democracy can the
observance of human rights be fully guaranteed.
It is not a question merely of pointing out the organic relation
that exists between representative democracy and human rights, which is
manifest in the Charter of the OAS and other instruments of the
inter-American system. The Commission's factual experience has been that
serious human rights violations that have occurred or that are occurring
in some countries of the Americas are primarily the result of the lack
of political participation on the part of the citizenry, which is denied
by the authorities in power. The resistance of these authorities as
regards taking the action necessary to reestablish representative
democracy has increased the tyranny, on the one hand, and led to serious
social strife, on the other. The result has been that both the
government and the more extreme opposition sectors have shown a
preference for the use of violence as the sole means of resolving
conflicts in the face of a lack of peaceful and rational options.
This experience confirms, therefore, that authentic social peace
and respect for human rights can only be found in a democratic system.
It is the only system that allows for the harmonious interaction of
different political tendencies and within which, by means of the inter
institutional equilibrium it establishes, the necessary controls can be
invoked to correct errors or abuses by the authorities.
This does not mean that democracies are exempt from problems as
they seek to ensure the effective observance of rights. Many are the
hurdles that stand in the way of the efforts of these governments to
ensure the observance of the basic rights and freedoms of their
citizenry.
First of all, one ought to mention the historically unprecedented
economic crisis besetting Latin America, the extent and gravity of which
have affected those social sectors of society which are the least
protected. This crisis has undermined the stability of the democratic
government, which, in some cases, has returned to democracy following an
arduous struggle. Notwithstanding the political, economic or financial
measures the governments of the Americas must institute, a consideration
of which lies outside its area of competence, the Commission is
convinced that the focal point and underpinning of any policy must be
the effective observance of the rights of the individual. It is
essential, under present circumstances, to institute the means necessary
to ensure for every man and woman in the hemisphere the enjoyment of his
or her economic, social and cultural rights. Hence the importance that
the Commission attributes to the prompt adoption of an Additional
Protocol to the American Convention on Human Rights with regard to these
rights.
Another challenge to democracies is terrorism, which in some
countries of the region has reached alarming proportions.
In previous reports, the Commission has had occasion to make
reference to terrorism, which it has fervently condemned pointing out
that whatever the motive, terrorism can have no justification. At the
same time, it has repeatedly pointed out that the States have an
obligation to maintain public order and ensure the personal safety of
their inhabitants. The governments must therefore prevent and repress
acts of violence by using all available legal means.
It is precisely the use of these means, which evidences the
existence of the rule of law. Thus, whereas nondemocratic regimes, which
maintain themselves in power by means of force usually fight insurgent
terrorism with state terrorism, they exclude no method provided that it
leads to the extermination of the subversion. Democratic regimes, if
they aspire not to enter into contradiction with what they are
essentially cannot substitute one form of violence for another. In other
words, summary executions, forced disappearances, tortures, indefinite
detentions without due process, administrative expulsions of dissidents,
irrevocably engender a spiral of violence, which ends up destroying the
rule of law, and consequently, democracy itself.
The Commission subscribes to the view that there can be no
authentic true democracy which does not ensure the safety of its
inhabitants and is not based on unimpeded respect for the human rights
of all.
A difficult problem that recent democracies have had to face has
been the investigation of human rights violations under previous
governments and the possibility of sanctions against those responsible
for such violations. The Commission recognizes that this is a sensitive
and extremely delicate issue where the contribution it—or any other
international body for that matter—can make is minimal. The response,
therefore, must come from the national sectors which are themselves
affected, and the urgent need for national reconciliation and social
pacification must be reconciled with the ineluctable exigencies of an
understanding of the truth and of justice.
Therefore, the Commission considers that only the appropriate
democratic institutions—usually the legislature—with the
participation of all the representative sectors, are the only ones
called upon to determine whether or not to decree an amnesty of the
scope thereof, while amnesties decreed previously by those responsible
for the violations has no juridical validity.
Independently of the problem of proving guilt, which in every
case must be determined individually and with due process guarantees by
a pre-existing court which applies the law in force at the time the
crime was committed, one of the few matters that the Commission feels
obliged to give its opinion on in this regard is the need to investigate
the human rights violations committed prior to the establishment of the
democratic government.
Every society has the inalienable right to know the truth about
past events, as well as the motives and circumstances in which aberrant
crimes came to be committed, in order to prevent repetition of such acts
in the future. Moreover, the family members of the victims are entitled
to information as to on what happened to their relatives. Such access to
the truth presupposes freedom of speech, which of course should be
exercised responsibly; the establishment of investigating committees
whose membership and authority must be determined in accordance with the
internal legislation of each country, or the provision of the necessary
resources, so that the judiciary itself may undertake whatever
investigations may be necessary.
The Commission considers that the observance of the principles
cited above will bring about justice rather than vengeance, and thus
neither the urgent need for national reconciliation nor the
consolidation of democratic government will be jeopardized.
Another problem that not a few democracies in America are
grappling with is the lack of an efficient and modern judiciary. In its
last Annual Report, the Commission already commented on the need for the
countries of the Americas to adopt effective measures to ensure a strong
and independent judiciary, which, as the Commission has frequently
stated, are the pillars upon which democracy rests.
Without detracting from the importance of such measures, which
are set out in the 1984-1985 Report, the Commission wishes at this time
to draw attention to some of the serious obstacles that the Judiciary,
as an institution, or the judges themselves, are facing in their effort
to achieve an autonomous and efficient administration of justice. These
obstacles arise from a variety of norms, such as domestic law, as in the
diminution or suspension of constitutional guarantees for the correct
administration of justice, or the absence of norms to ensure authentic
juridical, administrative and economic independence of the Judiciary. In
other cases, the source is the lack of support from political or police
authorities in implementing the Judiciary's decisions, or the lack of
protection for judges against acts of vengeance or professional reprisal
for the exercise of their authority, which inhibits them in their role
as judge. In conjunction with delays in trials due to unwieldy
legislation and the lack of information regarding many crimes, these
factors have led in more than one case to a shrinking credibility in the
administration of justice, and even in law itself, which regrettably is
also undermining confidence in democracy itself.
Tied to the issue of the Judiciary are two matters to which the
Commission would like to direct its special attention. The first is the
lack of effectiveness of the remedy of habeas corpus in some
countries when a state of emergency has been declared, a problem which
due to its importance will be the subject of a consultation with the
Inter-American Court of Human Rights.
The other problem is the recent persecution of human rights
organizations precisely in those states where the authority of the
judiciary is weakest or most limited.
The Commission will refer below to that issue, as well as to the
additional Protocol to the American Convention on Human Rights in the
area of economic, social and cultural rights, which it has drafted
pursuant to the mandate of the General Assembly. I.
DIFFICULTIES FACED BY HUMAN RIGHTS ORGANIZATIONS
The Inter-American Commission on Human Rights has always attached
great importance to the activities carried out in the countries of the
Americas by human rights organizations, both governmental—whose
principal function is understood to be the promotion and dissemination
of domestic and international law regarding human rights, as well as
private, or nongovernmental, organizations dedicated essentially to
furthering the protection of human rights.
It has been therefore the consistent policy of the Commission to
encourage the establishment of such organizations and to support their
activities, which can effectively contribute to the promotion and
protection of human rights.
These organizations, especially those devoted to the protection
of fundamental rights and freedoms, are especially important in those
countries where the Judiciary, whether in practice or by legal
constraints, is not endowed with the authority to effectively protect
the fundamental rights of the individual.
Limitations or weakness of the judiciary have led human rights
organizations, particularly nongovernmental ones, to play an active role
in the protection of human rights, the denunciation of violations, and
the movement to investigate such violations.
In some cases, the activities carried out by these organizations
have helped to correct abuses, in other cases, as the Commission has
regrettably found in examining the situation of human rights in various
states, these organizations or their leaders have been persecuted by
government authorities, which has enormously hampered their valuable
work.
Several cases of such persecution can be cited. In some
instances, human rights organizations have been denied legal status or
judicial personality. In others, their offices have been raided and
their property confiscated. Moreover, in at least three countries, their
leaders have been subjected to threats, smear campaigns, harassment and
even detention, in which the flimsiest pretexts have been used to block
their functions and activities.
Since many of these methods have regrettably been used more
intensively in recent years in some member states, as described in the
preceding chapter, the Commission feels obligated to reiterate to those
member states where such organizations are carrying out their important
functions under such precarious conditions, their obligation to
guarantee the autonomy and freedom of their leaders. II.
DRAFT ADDITIONAL PROTOCOL TO THE AMERICAN
CONVENTION ON HUMAN RIGHTS WITH REGARD TO ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
The Inter-American Commission on Human Rights will refer below to
the American Convention on Human Rights in regard to economic, social
and cultural rights, which it has prepared pursuant to the mandate of
the General Assembly of the Organization.
In its last six annual reports to the General Assembly, the
Commission has highlighted the importance of economic, social and
cultural rights and the need to establish institutional mechanisms to
effectively protect such rights.
The General Assembly of the Organization, in resolutions AG/RES.
510 (X-0/80) of November 27, 1980, AG/RES. 543 (XI-0/81) of December 10,
1981 and AG/RES. 618 (XII-0/82) of November 20, 1982, has shared the
views expressed by the Commission, and reaffirmed the opinion that the
effective protection of human rights should also include economic,
social and cultural rights.
Through resolution AG/RES. 619 (XII-0/82) of November 20, 1982,
the General Assembly instructed the General Secretariat to prepare a
preliminary Draft Additional Protocol to the American Convention on
Human Rights that would define economic, social and cultural rights.
That resolution also instructed the General Secretariat, after preparing
the preliminary draft, to sent it to the governments of the member
states and to the Preparatory Committee of the General Assembly for
their observations and recommendations.
In its annual report for 1982-1983, the Commission referred to
the decision adopted by the General Assembly and considered that, as an
organization specifically entrusted with the promotion and protection of
human rights, the Commission had the obligation to play as active a role
in the protection of economic, social and cultural rights as it was
playing with regard to civil and political rights.
In light of the above, the Commission proceeded to carefully
study the preliminary draft prepared by the General Secretariat, and in
August 1984, together with the Institute for Juridical Research of the
National Autonomous University of Mexico, the Commission organized a
seminar on the international protection of economic, social and cultural
rights, which brought together distinguished specialists in this field.
In its annual reports for 1983-1984 and 1984-1985, the Commission
took into account the papers, deliberations and conclusions of the
seminar in Mexico and the results of its own analysis, and set out the
criteria that should lay the basis for the Additional Protocol,
establishing rights that should be protected and identifying the
institutional mechanisms and organizations which in its view should
assume the task of protecting such rights.
By means of Resolution 778 (XV-0/85) regarding the Commission's
Annual Report, the General Assembly requested the Commission to submit
to the next session of the General Assembly a Draft Additional Protocol
to the American Convention on Human Rights with regard to economic,
social and cultural rights. The General Assembly also directed the
Permanent Council, through resolution AG/RES. 781 (XV-0/85), to inform
it of the views of the member states and of the agencies and
organizations interested in the content of the draft additional
protocol, with respect to the definition of the rights to be protected
and the institutional mechanisms that should be established for the
appropriate protection of such rights.
In carrying out these mandates, the Commission has been
coordinating its efforts with the Working Group that was established for
that purpose by the Committee on Juridical and Political Affairs of the
Permanent Council. It expressed its views to the Working Group at a
meeting convoked for that purpose by the Working Group, and will send to
the Permanent Council the text of the Draft Additional Protocol that it
prepared in the course of this session, while in accordance with the
terms of AG/RES. 778 (XV-0/85), it will also submit the draft to the
General Assembly through this annual report.
The Commission will not elaborate in its report on the draft,
since the guidelines it used to determine the economic, social and
cultural rights to be included in the Additional Protocol, as well as
the institutional mechanisms to be established, have already been
carefully examined by the Commission as stated above, in its annual
reports for 1983-1984 and 1984-1985, which can be used for reference.
In preparing this draft, the Commission has carefully considered
recent doctrinal contributions in this field, particularly in the
papers, debates and conclusions of the above-mentioned seminar held in
Mexico in 1984. It has also carefully examined international instruments
in force in this field, such as the American Declaration of the Rights
and Duties of Man, the Universal Declaration of Human Rights, the
International American Charter of Social Guarantees, the Charter of the
Organization of American States, amended by the Protocol of Buenos
Aires, and especially the International Pact of Economic, Social and
Cultural Rights of 1966, which served as the basis for several articles
in the Commission's draft. In addition, the Commission has given special
attention to the national legislation of several member states of the
Organization of American States, and has taken into account the
preliminary draft prepared by the General Secretariat of the
Organization in 1983. It has also taken into account the observations
made by several member states, the Inter-American Court of Human Rights
and the International Labour Organisation on that preliminary draft.
Subsequent views offered by the Inter-American Court of Human Rights,
the International Labour Organisation, and the Pan American Health
Organization have been particularly useful to the Commission in drawing
up the draft it presents herein.
While taking into consideration all of the information and
opinions cited above, in preparing this draft the Commission has
considered that although in some cases certain economic, social and
cultural rights should merely be reaffirmed in the Additional Protocol,
since these are adequately covered out in other instruments, either
universal or regional, other rights should be elaborated and developed
in order to consolidate representative democracy in America, grounded in
the integral observance of individual rights and the right of its
peoples to development, self determination and the free disposition of
their wealth and natural resources in accordance with international law.
The draft also includes some provisions that are based solely on
national legislations.
The draft that the Commission submits for the consideration of
the States Parties to the American Convention on Human Rights consist of
a preamble and 22 articles. The preamble sets out the reasons which, in
the opinion of the Commission, justify the adoption by those states of
an additional protocol on economic, social and cultural rights. Among
these reasons, the Commission wishes to underline the close relation
between the observance of economic, social and cultural rights and that
of civil and political rights, since the two categories of fights
constitute an indissoluble whole, based on recognition of the dignity of
the individual. It is because of that relation that the Commission has
repeatedly stated that both categories of rights require ongoing
protection and promotion in order to bring about full observance, while
also noting that the violation of one category of rights cannot be
justified by pursuit of the observance of others.
The first five articles contain general provisions, customary in
this kind of instrument, which refer, respectively, to the obligation of
states to adopt the necessary measures consistent with available
resources to gradually attain the full observance of the rights
recognized in the Protocol; the obligation to nondiscriminatory conduct;
the obligation to adopt internal legislation to render effective the
rights established in the Protocol; the nonadmissibility of restrictions
on recognized rights by virtue of domestic or international legislation,
on the pretext that the Protocol does not recognize them or recognize
them to a lesser degree; the admissibility of establishing restrictions
and limitations on the enjoyment and exercise of rights established in
the Protocol to the extent that they are compatible with the nature of
such rights and are imposed through laws passed in order to promote the
general welfare in a democratic society.
Articles 6 to 16 establish the economic, social and cultural
rights to be protected. According to the system established by Article 1
of the Convention, the object of international protection is the person,
interpreted as all human beings. In this regard, the Commission wishes
once again to state that the rights to be guaranteed by means of the
additional protocol are attributes of the human person as such, and they
therefore cannot be considered the byproduct of the success of given
economic or social policies. As human rights, economic, social and
cultural rights are thus imposed imperatives and not merely desirable
development goals.
In establishing these rights, the Commission has taken as its
point of departure the fundamental nucleus comprised of labor, health
and education rights. To these are added other related rights or rights
directly linked to them or to measures that aim at achieving them in
practice.
With respect to the right to work, which is recognized in Article
6, the draft also refers in subsequent provisions to equitable and
adequate working conditions; trade union rights; the right to strike;
and the right to social security.
Based on views set out by the World Health Organization and the
Pan American Health Organization, the right to health has been defined
in Article 11, which also states the obligations of the State in the
health field. Articles 12 and 13 incorporate two important rights linked
to the right to health: the right to live in a healthy environment and
the right to food.
The right to education, as well as rights directly linked to it,
such as freedom of education and the right to the benefits of culture,
are set out in Articles 14, 15 and 16. In addition to these economic,
social and cultural rights, the proposed draft upholds rights that aim
at the participation of institutions or groups, such as the family,
referred to in Article 17. The draft also attaches importance to the
specific inclusion of these groups: children, the elderly and the
handicapped. In the opinion of the Commission, these are categories of
individuals who, due to their particular characteristics and place in
society, require special attention so that they may enjoy economic,
social and cultural rights. Indeed, for these rights to be truly
exercised by the above-cited groups, the State should adopt specific
measures that go beyond those necessary for the general population.
Without such special consideration, the economic, social and cultural
rights of these groups would be seriously weakened.
Although the rights of children have been defined in Article 19
of the American Convention on Human Rights, the Commission has found it
advisable to add to Article 18 of its draft, a provision that restates
the need for children to have the special protection of the family,
society and the State, and some specific measures to this end are cited.
Regarding the elderly, considered under Article 19, the
Commission believes that because they have passed the age of active
employment, the elderly often find themselves forced to live in very
precarious conditions. As a group that is particularly vulnerable
because of its characteristics, the elderly should be given priority
attention by the State. Similar considerations apply to the handicapped,
referred to under Article 20.
Despite the fact that the preceding provisions refer to groups or
categories of persons, in order to maintain the structure of the draft
and to reaffirm the personal nature of the rights that are established
in the draft Additional Protocol, such provisions have been drafted so
as to confer the corresponding rights to each of the persons comprising
those groups.
The core of the Additional Protocol certainly lies in the
institutional means that are established for the protection and
promotion of economic, social and cultural rights. In order to overcome
the potential difficulties that such a delicate matter could pose, the
Commission, in Article 21 of the draft, has proposed a realistic,
flexible and effective system which it is confident may be accepted by
the States parties to the American Convention on Human Rights, as it
already has a previously-accepted basis in that Convention.
The draft Additional Protocol confirms that the Inter-American
Commission on Human Rights is competent to monitor the observance of the
rights protected in the Protocol by preparing reports that will follow
guidelines to be set out in the Commission's Statute.
The Commission has deliberately decided to incorporate in its
Statute, rather than in the Protocol itself, the guidelines along which
such reports shall be prepared. In this, the Commission's intent has
been that in light of experience acquired in preparing such reports,
their format may be regulated in an instrument that is more easily
amended, such as its Statute, thus avoiding mechanisms such as that
regulated under Article 42 of the American Convention on Human Rights
which established an inadequate system of protection and therefore has
not been applicable in the years in which the Convention has been in
force. Nevertheless, the draft requires that the Commission take into
account the gradual nature of the observance of the rights set out in
the Protocol.
In order to facilitate carrying out the functions conferred upon
the Commission, which it has exercised in fact in the past, it is
confirmed that the Commission may have the advice of experts and may
establish the relations it deems advisable with the organs and agencies
of the inter-American system, as well as with the specialized agencies
of the United Nations.
Without prejudice to the foregoing, the Commission considers that
three rights defined in the protocol—trade union rights, the right to
strike and freedom of education—should enjoy the same system of
protection that was established for civil and political rights. Thus,
paragraph 5 of Article 21 of the draft makes applicable the system of
individual petitions of the Convention—with the participation of the
Commission or where appropriate of the Court—when one of these rights
is violated by an order directly attributable to a State Party.
The last article of the draft refers to the signature and
ratification or adherence and the entry into force of the Protocol,
respectively.
The Commission hopes that it has complied with the mandate
entrusted to it, and that by presenting this draft hereby submitted to
the consideration of the States Parties to the American Convention on
Human Rights, it will facilitate the adoption by those states at a
future General Assembly of the Organization of this additional protocol
to the American Convention on Human Rights in regard to economic, social
and cultural rights.
The Commission trusts that the comments and observations on the
proposed text that will be offered by the governments of the member
states and the specialized organs and agencies of both the
inter-American system and the United Nations will enrich the careful
consideration of it by the Permanent Council, all of which will help the
inter-American system to acquire a modern instrument devoted to carrying
out the important function of internationally protecting the economic,
social and cultural rights of the individual.
The text of the proposed protocol is transcribed below. DRAFT
PROTOCOL ADDITIONAL TO THE AMERICAN
CONVENTION ON HUMAN RIGHTS (PACT
OF SAN JOSÉ DE COSTA RICA, 1969)
The States Parties to
the Protocol Additional to the American Convention on Human Rights,
Reaffirming their intention to consolidate in this hemisphere,
within the framework of democratic institutions, a system of personal
liberty and social justice based on respect for the essential rights of
man;
Recognizing that the essential rights of man are not derived from
one's being a national of a certain State, but are based upon attributes
of the human person, for which reason they merit international
protection in the form of a convention reinforcing or complementing the
protection provided by the domestic law of the American States;
Considering the close relationship that exists between economic,
social, and cultural rights and civil and political rights, in that the
two categories of rights constitute an indivisible whole based on the
recognition of the dignity of the human person for which reason both
require permanent protection and promotion if they are to be fully
realized, although the violation of one group of rights in favor of the
realization of the other group can never be justified;
Recognizing that, in accordance with the Universal Declaration of
Human Rights and the American Convention on Human Rights, the ideal of
free human beings enjoying freedom from fear and want can only be
achieved if conditions are created whereby everyone may enjoy his
economic, social and cultural rights as well as his civil and political
rights;
Bearing in mind that, although fundamental economic, social and
cultural rights have been embodied in earlier international instruments
of both world and regional scope, it is essential that those rights be
reaffirmed, developed and perfected in order to consolidate in America,
on the basis of full respect for the rights of the individual, the
democratic representative form of government as well as the right of its
peoples to development, self-determination, and the free disposal, in
accordance with international law, of their wealth and natural
resources; and
Considering that the General Assembly of the Organization has
repeatedly expressed its wish to draw up a protocol additional to the
American Convention on Human Rights for the purpose of defining the
economic, social, and cultural rights to be protected and to establish
institutional arrangements for ensuring the appropriate protection of
such rights; and
Considering that the American Convention on Human Rights provides
that draft protocols additional to that Convention may be submitted for
consideration to the States Parties, meeting together on the occasion of
the General Assembly of the Organization of American States, for the
purpose of gradually incorporating other rights and freedoms into the
system for the protection thereof;
Have agreed upon the following Protocol Additional to the
American Convention on Human Rights: Article
1 Obligation
to adopt measures
The States Parties to this Protocol Additional to the American
Convention on Human Rights (Pact of San José, Costa Rica, 1969)
undertake to adopt all the necessary measures within the extent of the
resources available to them, to achieve the progressive realization of
the rights recognized in this Protocol. Article
2 Obligation
of non-discrimination
1.
The States Parties to this Protocol undertake to guarantee the
exercise of the rights set forth herein without discrimination of any
kind.
2.
The States Parties to this Protocol undertake to invest men and
women with equal title to the enjoyment of all the economic, social and
cultural rights set forth in this Protocol. Article
3 Obligation
to enact domestic legislation
If the exercise of the rights set forth in this Protocol is not
already guaranteed by legislative or other provisions, the States
Parties undertake to adopt, in accordance with their constitutional
processes and the provisions of this Protocol, such legislative or other
measures as may be necessary for making those rights a reality. Article
4 Inadmissibility
of restrictions
Prohibited is any restriction or diminution of a right recognized
or guaranteed in a state's legislation or by means of international
treaties, on the pretext that the present Protocol does not recognize
the right or recognize it to be a lesser degree. Article
5 Scope
of restrictions and limitations
The State Parties may only establish restrictions and limitations
on the enjoyment and exercise of the rights established in the present
Protocol by means of laws promulgated with the purpose of preserving the
general welfare in a democratic society, to the extent that they are
compatible with these rights, public health and morality. Article
6 Right
to work
Everyone shall have the right to work, which includes the right
of opportunity to lead a decent life by carrying out an activity which
one freely chooses or accepts. Article
7 Just
and satisfactory conditions of work
The right to work defined in the foregoing article presupposes
that the same is carried out in just and satisfactory conditions, which
the State Parties to the Present Protocol undertake to guarantee in
their internal legislation:
a. Remuneration which
guarantees, at a minimum, to all workers decent living conditions for
them and their families and just and equal wages for work of equal
value, without distinction. Women must be guaranteed working conditions
equal to those of men.
b. Freedom to change
employment opportunities of promotion and mobility, work stability and
the corresponding indemnization in the case of unjustified dismissal.
c. Safety and hygiene at
work.
d. The prohibition of night
work or unhealthy or dangerous working conditions for persons under the
age of 18 and, in general, all work which could place in danger the
youth's health, safety or morals. As regards minors under the age of 16,
the workday will be subordinated to the provisions regarding compulsory
education and in no case will it constitute an excused absence from
classes or a limitation on benefiting from education received.
e. The limitations on the
hours of work, both daily and weekly. The days will be of shorter
duration if the work is dangerous or unhealthy.
f. Rest, leisure, reasonable
limitation of working hours and paid vacations as well as remuneration
for public holidays. Article
8 Trade
union rights
1.
The State Parties undertake to ensure the right of everyone to
form trade unions and to join the trade union of his choice for the
promotion and protection of his economic and social interests. As an
extension of that right, the State Parties shall permit trade unions to
establish national federations or confederations, or to join those that
already exist, as well as to form international trade union
organizations and to join that of their choice. The States Parties shall
also permit trade unions, federations and confederations to function
freely.
2.
The exercise of the rights set forth above may be subject only to
the restrictions stipulated by the law, provided that they are
characteristic of a democratic society and necessary for safeguarding
public order and protecting public health or morals and the rights and
freedoms of other persons. Article
9 Right
to strike
1.
The States Parties to the present Protocol recognize the right to
strike of trade union organizations.
2.
The right to strike recognized in the present Protocol must be
exercised in conformity with the laws of the corresponding State.
3.
The provision of the present article shall not prevent States
from imposing legal restrictions on the right to strike as regards
members of the armed forces, the police or other public service agents
of the State. Article
10 Right
to Social Security
1.
Everyone shall have the right to social security that protects
him against the consequences of unemployment, old age, and disability
which, being the result of causes beyond his control, prevent him
physically or mentally from earning the means for a decent living.
2.
In the case of persons who are employed, the right to social
security shall cover at least medical care and an allowance or
retirement benefit in the case of occupational accidents or occupational
disease and, in the case of women, paid maternity leave before and after
childbirth. Article
11 Right
to health
1.
Everyone shall have the right to health, which is understood to
mean the enjoyment of the highest degree of physical, mental and social
well-being.
2.
To that end, the States Parties undertake to recognize health as
a public good and in particular to guarantee this right by means of the
following:
a. Primary health care, that
is, essential health care made available to all individuals and families
in the community;
b. To extend the benefits of
health services to all individuals subject to the State's jurisdiction;
c. Universal immunization
against the principal infectious diseases;
d. The prevention and
treatment of endemic diseases;
e. The education of the
population concerning the prevention and treatment of health problems;
f. The satisfaction of
health needs of the highest risk group, who because of their poverty are
the most vulnerable. Article
12 Right
to a healthy environment
Everyone shall have the right to live in an environment free of
pollution and to have access to basic urban services, especially a safe
water supply and sewerage services. Article
13 Right
to food
Everyone has the right to adequate nutrition, which guarantees
the possibility of enjoying the highest level of physical, emotional and
intellectual development. Article
14 Right
to education
1.
Everyone has the right to education.
2.
The State Parties to the present Protocol agree that, in general,
education should be directed towards the full development of the human
personality and human dignity, and ought to strengthen respect for human
rights, fundamental freedoms and peace. They agree, also, that education
ought to equip all persons in the task of achieving a decent existence,
and enabling one to participate effectively in a democratic society.
3.
The States Parties to the present Protocol recognize that, in
order to achieve the complete exercise of the right to education:
a. Primary education shall
be compulsory and accessible to all without cost;
b. Secondary education in
its different forms, including technical and professional secondary
education, shall be made generally available and accessible to all by
every appropriate means, and in particular, by the progressive
introduction of free education;
c. Higher education shall be
made accessible to all, on the basis of capacity, by every appropriate
means, and in particular, by the progressive introduction of free
education;
d. Basic education shall be
encouraged or intensified as far as possible for those persons who have
not received or completed the whole cycle of primary instruction;
e. Programs of special
education shall be established for the handicapped, so as to provide
special instruction and training for persons with physical disabilities
or mental deficiencies. Article
15 Right
to freedom of education
1.
The State Parties to this Protocol undertake to respect the
liberty of parents and, where applicable, legal guardians to choose for
their children schools other than those established by the public
authorities, provided they conform to such minimum educational standards
as which may be laid down or approved by the State, and to ensure the
religious and moral education of their children in conformity with their
own convictions.
2.
No provision of this article shall be construed so as to
interfere with the freedom of individuals and organizations from
establishing and directing educational institutions, subject to the
observance of the principles set forth above and to the requirement that
the education given in such institutions shall conform to such minimum
standards as may be laid down by the State. Article
16 Rights
to the benefits of culture
1.
The States Parties to this Protocol recognize the right of
everyone:
a. To take part in the
cultural and artistic life of the community;
b. To enjoy the benefits of
scientific progress and its applications.
2.
The steps to be taken by the States Parties to this Protocol to
ensure the full exercise of this right shall include those necessary for
the conservation, the development and the diffusion of science, culture
and art.
3.
The States Parties to the present Protocol undertake to respect
the freedom indispensable for scientific research and creative activity.
4.
The States Parties to this Protocol recognize the benefits to be
derived from the encouragement and development of international contacts
and cooperation in the scientific and cultural fields. Article
17 Right
to the founding and the protection of families
1.
The family is the natural and fundamental element of society and
ought to be protected by the society and the State.
2.
Everyone shall have the right to found a family, which he shall
exercise in accordance with the provisions of the pertinent domestic
legislation.
3.
Without prejudice to the provisions of Article 17 of the American
Convention on Human Rights, the States Parties undertake, pursuant to
the present Protocol, to accord special protection to the family group
and in particular:
a. To accord special
attention and assistance to mothers during a reasonable period before
and after childbirth;
b. To guarantee children
adequate nutrition both during nursing and while attending school;
c. To adopt special measures
for the protection of adolescents in order to guarantee the full
development of their physical, intellectual and moral capacities;
d. To undertake special
programs of family training so as to help create a stable and positive
environment in which children will receive and develop the values of
understanding, solidarity, respect and responsibility. Article
18 Rights
of the Child
Every child has the right to the protection which the conditions
of childhood requires as regards the family, society and the State.
Every child has the right to grow under the protection and
responsibility of its parents; except in exceptional circumstances, as
defined by the courts, a child of young age ought not to be separated
from its mother. Every child has the right to free and compulsory
education, at least in its basic phase, and to continue at higher levels
of the educational system. Article
19 Protection
of the aged
Everyone shall have the right to special protection during his
old age. To that end, the States Parties undertake to adopt the
necessary measures for ensuring the realization of this right, and, in
particular:
a. To provide appropriate
facilities, such as specialized food and medical attention for persons
of an advanced age who lack it and are unable to provide for themselves;
b. To undertake specific
employment programs for providing the aged with an opportunity to engage
in a productive activity appropriate to their ability and respectful of
their vocation or wishes;
c. To promote the formation
of social organizations designed to improve the quality of life of the
aged. Article
20 Protection
of disabled persons
Everyone affected by a reduction in physical or mental
capabilities shall have the right to receive special care to enable them
to fully develop their personality. To that end, the States Parties
undertake to adopt such measures as may be necessary for that purpose,
and, in particular:
a. To undertake specific
programs for providing disabled persons with the resources and necessary
environment for achieving that objective, including employment programs
adequate to their possibilities and which they shall be free to accept;
b. To include in urban
development guidelines consideration of ways of solving the specific
requirements generated by the necessities of this special group;
d. To promote the formation
of social organizations in which disabled persons can develop a full
life. Article
21 Means
of protection
1.
The Inter-American Commission on Human Rights will monitor the
observance of the economic, social and cultural rights set forth in the
present Protocol by means of the preparation of special reports. The
Commission's regulations shall determine the nature of these reports.
2.
The Commission shall take into consideration the progressive
nature of the observance of the rights subject to protection by this
Protocol.
3.
The States Parties to the present Protocol undertake to supply
the Inter-American Commission on Human Rights, at its request, with
information on the measures which they have adopted at their own
initiative or at the request of the latter and on the progress achieved
as regards the goal of ensuring the observance of the rights recognized
in this Protocol.
4.
In the exercise of the function set forth in the above
paragraphs, the Commission shall be able to count on the advise of
experts and to establish the relations it considers appropriate with the
organs and agencies of the inter-American and the UN systems.
5.
Without prejudice to the above, in the case of the rights set
forth in Articles 8, 9 and 15 of this Protocol, in the case of a
violation of these rights directly imputable to a State Party to this
Protocol, such a situation shall give rise to the application of the
individual petition procedure set forth in Articles 44 to 51 and 61 to
69 of the American Convention on Human Rights and the corresponding
involvement of the Commission and where applicable, the Inter-American
Court of Human Rights. Article
22 Signature
and ratification or accession Entry
into force
1.
This Protocol shall be open for signature and ratification or
accession by any State Party to the American Convention on Human Rights.
2.
Ratification or accession to this Protocol shall be effected
through the deposit of an instrument of ratification or accession with
the General Secretariat of the Organization of American States.
3.
As soon as seven States have deposited their instruments of
ratification or accession, the Protocol shall enter into force.
4.
The Secretary General shall inform all the member States of the
Organization of the entry into force of the Protocol.
On the basis of the background information and considerations set
forth, the Commission requests the General Assembly of the Organization
of American States, meeting at its sixteenth regular session, to adopt
the following decisions:
1.
That it reaffirms the urgent need for governments that have not
yet reestablished representative democracy as their system of government
to put in place the relevant institutional mechanisms for restoring that
system in as short a period of time as possible through free, secret
informed elections, since democracy is the best guarantee for the
observance of human rights and the basis of solidarity among the States
of the Hemisphere.
2.
That it recommend to the member states that they provide all
necessary guarantees to non governmental human rights organizations so
that they may continue to contribute to the promotion and defense of
human rights and that the member states respect the freedom and
integrity of the leaders of said organizations.
3.
That, with respect to the Additional Protocol to the American
Convention on Human Rights on economic, social and cultural rights, it
transmit the draft prepared by the Inter-American Commission on Human
Rights to the governments of the member states so that they may make
observations or comments on the draft and transmit them to the Permanent
Council, which will enable the Council to submit them to the State
Parties to the American Convention on Human Rights which will meet on
the occasion of the seventeenth regular session of the General Assembly
at which time they will be in a position to adopt the new version of the
draft Protocol.
4.
That it reiterate to the member states which are not parties to
the American Convention on Human Rights (the 1969 Pact of San José
Costa Rica) that they ratify, or adhere to, said instrument, and in case
they have not done so, to recognize the competence of the Inter-American
Commission on Human Rights to receive and examine inter-State
communications in accordance with Article 45, paragraph 3 of the
Convention as well as to accept the obligatory jurisdiction of the
Inter-American Court on Human Rights, in conformity with Article 62,
paragraph 2 of said Convention. [
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