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The Inter-American Human Rights System

Introduction
History
Organization of American States
Main Bodies
Human Rights Bodies of the Organization of American States
Main Human Rights Treaties and Declarations
Advocacy, Educational and Training Materials
Other Resources


 

Introduction

The states of the American continents have created a regional institution, the Organization of American States (OAS), which includes several structures for protecting human rights. The Charter of the Organization of American States focuses on several areas promoting human rights: democracy, economic rights, the right to education, and equality. The Charter also establishes two main institutions designed specifically for human rights protection and promotion: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. It protects rights via the creation of substantive norms and maintains these standards through the petition process.

 

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History

Regional interaction is not new to the Americas. At the beginning of the 19th century, South American freedom fighter Simón Bolívar attempted to create an association of states from the hemisphere during the 1826 Congress of Panama. Later that century, in 1890, the First International Conference of American States was held in Washington, D.C., where the International Union of American Republics and the Commercial Bureau of the American Republics were first established. The Commercial Bureau, which turned into the Pan American Union in 1910, was a predecessor of the OAS.

The 21 participants in the Ninth International American Conference signed the OAS Charter on April 30, 1948 in Bogotá (Colombia), thus transforming the Pan American Union into a new regional organization. Included in the Charter was an affirmation of the nations' commitments to common goals and respect for one another's sovereignty. Participants in the conference also signed the American Declaration of the Rights and Duties of Man, which, having been signed just months earlier than the United Nation's Universal Declaration of Human Rights, became the first international document proclaiming human rights principles. The Director General of the Pan American Union, Alberto Lleras Camargo, became the first Secretary General of the OAS.

 

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Organization of American States

The Organization of American States strives to address five general areas of focus. First, it looks to further democracy, specifically by strengthening freedom of speech, encouraging an increase in the participation of civil society in government, and eliminating corruption. Second, the OAS seeks to promote human rights, especially the areas of women's rights, children's rights, and cultural rights. Third, the Organization focuses on increasing regional and hemispheric peace and security by eliminating terrorism and de-mining the area. Fourth, the OAS concentrates on improving rule of law by strengthening the Inter-American legal development, ridding the region of illegal drug use and trafficking, and lowering regional crime levels. Last, the Organization of American States tries to strengthen the regional economy. It supports the creation of a Free Trade Area of the Americas, it looks advances in science and technology, telecommunication, tourism, sustainable development and the environment. It also looks to reduce poverty and promote education, and deal with labor issues.

All 35 countries of the Americas have ratified the Charter of the OAS and belong to the organization. The 21 original member states, who signed the OAS Charter on April 30, 1948, were: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the United States, Uruguay and Venezuela. The following states have joined the OAS since then: Barbados (1967); Trinidad and Tobago (1967); Jamaica (1969); Grenada (1975); Suriname (1977); Dominica (1979); Saint Lucia (1979); Antigua and Barbuda (1981); Saint Vincent and the Grenadines (1981); The Bahamas (1982); St. Kitts and Nevis (1984); Canada (1990); Belize (1991); and Guyana (1991).

 

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Main Bodies

The OAS Charter has been amended twice, once by the 1967 Protocol of Buenos Aires and again in the 1985 Protocol of Cartagena de Indias. The Charter outlines the institutional structure of the Organization of American States. There are six main types of institutions associated with the OAS: Governing Bodies; Committees and Commissions; the General Secretariat; the Inter-American Emergency Aid Fund; Specialized Organizations; and Other Agencies. These six branches of the OAS perform distinct roles and functions for the organization.

Governing Bodies

There are three different governing bodies within the OAS. The General Assembly is the highest decision making body. It meets once and year and its membership consists of the foreign ministers of each member state.

The Permanent Council mainly addresses administrative and political issues arising within the OAS. It is headquartered in Washington, DC, and meets on a regular basis; its membership consists of one ambassador appointed per member state.

The Inter-American Council for Integral Development focuses on promoting economic development and combating poverty.

Inter-American Committees and Commissions

There are seven main committees or commissions within the OAS. The most significant avenues for promoting and protecting human rights within the OAS fall within this type of institution. The seven bodies are: the Inter-American Committee Against Terrorism (CICTE); the Inter-American Juridical Committee; the Inter-American Commission on Human Rights; the Inter-American Court of Human Rights; the Inter-American Drug Abuse Control Commission; the Inter-American Telecommunications Commission; and the Inter-American Committee on Ports.

General Secretariat

The General Secretariat carries out programs and policies set by the General Assembly and the Councils. There are 21 sub-groups to assist the General Secretariat in this duty.

Specialized Organizations

These include: the Pan American Health Organization; the Inter-American Children's Institute; the Inter-American Commission of Women; the Pan American Institute of Geography and History; the Inter-American Indigenous Institute; and the Inter-American Institute for Cooperation on Agriculture.

Other Agencies and Entities

The OAS also has an Administrative Tribunal, an Inter-American Defense Board, and a Pan American Development Foundation.

 

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Human Rights Bodies of the Organization of American States

The two main institutions for the protection and promotion of human rights throughout the American hemisphere are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.


Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights was the principle institution that the OAS Charter created for human rights protection and promotion. It is based in Washington, DC (USA) and is assisted by an Executive Secretary's Secretariat. It is composed of seven independent experts who are elected to four year terms by the OAS General Assembly. During its sessions, it hears from individuals and representatives from organizations on various claims of human rights abuses.

The main duty of the Commission on Human Rights is to hear and oversee petitions that have been made against a member state of the OAS claiming a human rights abuse. The human rights universally protected by the Commission, and thus eligible to be petitioned for their protection, are those found in the American Declaration of the Rights and Duties of Man. States have ratified the American Convention on Human Rights are bound by the human rights guaranteed in the Convention, which are monitored by the Commission.

The proceedings of the Commission are listed in the Commission's Statute and Regulations. In most scenarios, the proceedings are the same for petitions being filed against countries that have signed the Convention and those that have not. The status for admissibility, the procedural stages, the fact-finding process, and the decision making are all similar, if not the same, in the two instances. One difference rests in the petition's outcome; with countries that have ratified the American Convention, the Commission is asked to find a "friendly settlement"; no such specification is made for states that have not ratified the Convention.

Any individual, group of people, or NGO who are legally recognized in at least one OAS member state may file a petition; the petition may be submitted by either the victim or a third party may do so, with or without the victim's knowledge. The criterion for an admissible petition is listed in Articles 44 through 47 of the American Convention, as well as in Articles 26 and 32 through 41 in the Commission's Regulations. In each situation, a petition must include information on the individual or individuals filing the petition, the subject matter of the petition, and the "procedural posture" of the petition.

There are two types of petitions that may be filed: either a general petition or a collective petition. A general petition is filed when a widespread form of human rights violations that is not limited to just one group of people or just one incident has occurred. A collective petition is filed when there are numerous victims of a specific incident or practice violating human rights. With both types of petitions, specific victims must be acknowledged. All petitions must include the name, nationality, profession or occupation, postal address, and signature of the person submitting the petition. An NGO must include its legal address and legal representative's signature.

All petitions filed must include certain facts to be admissible. Petitions should state the place where the violation occurred, the date on which it happened, the names of the victims, and the names of state officials involved with the violation. All pieces of information should be as specific as possible, as the Commission does not have the economic or personal resources to always conduct thorough investigations without help from the petitioners themselves. Especially crucial to a successful petition is the inclusion of as detailed and thorough information as possible regarding the government's involvement in the human rights abuse, as the Commission is only authorized to investigate claims made against a government of an OAS member state. A government may be involved directly or indirectly, by failing to prohibit, prevent, or stop private human rights abuses. In providing this information, relevant interviews may be submitted, and can be kept confidential if need be.

Another useful inclusion to a petition is a list of the rights violated. These petitions, which may be based on either civil and political rights or social, economic, and cultural rights, may refer to OAS human rights documents, as well as human rights documents from the United Nations or other regional bodies. They may also refer to precedents set by the Inter-American Commission on Human Rights or the Inter-American Court of Human Rights.

The American Declaration and the American Convention both stipulate situations in which the suspension of certain rights would be legitimized. Even if the rights violated in a petition qualify as derogable in distinct circumstances, it may still be a valid petition, if the government had failed to prove the rights suspension necessary, or the rights suspension was unnecessarily broad, or if the suspension was unnecessarily discriminatory, or if the suspension violated other state international agreements. Still other rights, even with the Declaration's and Convention's clauses, are held to be non-derogable, and thus no situation is justification for their suspension. These rights, if infringed, may always be petitioned.

Eligibility of a petition depends on a few further criterion. The Commission will only accept petitions where all domestic legal action has already been unsuccessfully taken; a petition must prove this to be the case. If the petitioner cannot prove this, the state's government may be asked to do so, and if the state can show that some domestic legal opportunities are still available to the petitioner, then the petitioner must demonstrate that one of four situations applies: either access to these remedies has been denied or prevented, there has been an unnecessary delay in judgment, there was a denial of adequate legal counsel, or the domestic legislation does not provide due process to protect the rights violated.

After all domestic legal action has been completed, the petition must be filed within six months of the final ruling. Extensions are granted when the state interfered with the process, and then the petition must be filed within a reasonable amount of time. If the petition is being filed by a third party, it must be done so within a reasonable amount of time.

A petition may not be submitted that, in essence, duplicates a previous or current petition. One such petition may be submitted if the other is a general petition, or if it does not deal with the facts of the case of the new petition, or if it does not address the same victims for settlement purposes, or if the first petition was submitted by a third party unbeknownst to the victims who are submitting a new petition.

If at any point it becomes apparent that a petition is inadmissible, the Commission informs the petitioner and closes the file. Otherwise, the Commission will examine the case. It opens a file, gives the case a number, and submits all pertinent information to the government in question's Minister of Foreign Affairs. It requests that the Minister supplies information on the facts and on domestic remedies utilized, while it alerts the petitioner that the petition is being examined. Normally, it will allow the government 90 days to respond, but it can grant an extension of up to 180 days if the government so requests and proves it necessary. Sometimes the Commission may request that information be shared sooner than 90 days for special cases; a lack of response on the part of the government may indicate it is guilty.

The government's response, if there is one, is forwarded to the petitioner, who then has thirty days to comment on the response as well as submit further material, if desired. The petitioner may ask for evidence on certain government statements or may request an oral hearing for the introduction of witnesses. The Commission then will decide whether or not to hold the oral hearing; it is authorized but not obligated to do so. The petitioner may also request for the Commission to undertake an on-site investigation in the country in question. The Commission will only investigate for allegations of widespread human rights violations within a country, and look at individual cases then as demonstrative of a broader theme. This method is rarely undertaken for just an individual case.

The Commission, after making its decision on the petition, releases judgment on what should be done by issuing recommendations to the state concerned. In the event that the state is party to the American Convention, the Commission must attempt to formulate a friendly settlement, if possible. The Commission, following this outcome, prepares a report for each party and for the OAS Secretary General to publish.

If a friendly settlement is either not sought or reached, the Commission writes a report with the facts of the case and the Commission's conclusions, recommendations, and proposals. The state concerned and the Commission then have 3 months to decide whether or not to submit the case to the Court of Human Rights or settle the matter. Next, the Commission formally adopts an opinion and a conclusion with time limits for the government to undertake the proposed measures.

If the state is a party to the American Convention and has accepted the Court's optional jurisdiction, the Commission or the state may refer the petition to the Court of Human Rights for a new evaluation culminating in a binding judgment with possible monetary ramifications.

States that are not parties to the Convention are not subject to the friendly settlement clause. In that situation, the Commission will undergo its fact finding and then determine the merits of the petition, adopt a final decision (usually a lengthy resolution) with recommendations and deadlines. Regulations state that the decision may be published "if the state does not adopt the measures recommended by the Commission within the deadline", yet the Commission has actually published more frequently than that. The Commission may recommend compensation to the victims, but does not have the power to officially award such compensation. The decisions of the Committee are not legally binding.

In addition to investigating cases, the Commission may, on its own initiative, investigate and issue a report on the human rights situation in any OAS member state. The Commission bases its independent studies on reports it has received from NGOs and individuals. The Commission also submits an annual report to the OAS General Assembly, with information on resolutions of particular cases, reports on human rights situation in various states, and discussions of areas needing further action to promote and protect human rights.


Inter-American Court of Human Rights

The Inter-American Court of Human Rights was established in 1978 with the entry into force of the American Convention. It hosts seven judges who are each nominated and elected for six year long terms by the parties to the American Convention; a justice may be reelected only once. The Court has its permanent seat in San José (Costa Rica).

The Court's jurisdiction is limited. It may only hear cases where the state involved has a). ratified the American Convention on Human Rights, b). has accepted the Court's optional jurisdiction (as of 1992, only 13 of 35 nations had signed this optional jurisdiction), c). the Inter-American Commission on Human Rights has completed its investigation, and d). the case was referred to the Court either by the Commission or the state involved in the case within three months of the release of the Commission's report. An individual or a petitioner may not independently bring forth a case to be considered by the Court.

In the event that the Commission brings a case forward to the Court of Human Rights, it notifies the original petitioner. At this point, the petitioner or an attorney has the opportunity to request necessary measures, including precautions for witnesses and protections for evidence.

Proceedings are both written and oral. Initially, both a written Memorial and Counter-Memorial are submitted. They may be accompanied by a statement of how the facts will be proven and how the evidence is to be presented. In the event that there are complex legal issues involved, petitioners may request a supporting amicus curiae brief from an NGO. Normally hearings are open to the public, but the Court may decide to close them.

The Court's deliberations are always secret and confidential; its judgments and opinions are published. If the Court rules that a right has been violated, it will order that the situation be rectified. It may award compensation to the victim for actual damage, emotional harm, and/or litigation costs, but it will not award punitive damages.

 

 

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Main Human Rights Treaties and Declarations

International legal instruments take the form of a treaty (also called agreement, convention, protocol) which may be binding on the contracting states. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" to that effect by the representatives of states. There are various means by which a state expresses its consent to be bound by a treaty. The most common are ratification or accession. A new treaty is "ratified" by those states who have negotiated the instrument. A state which has not participated in the negotiations may, at a later stage, "accede" to the treaty. The treaty enters into force when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others, a specific law may be required to give an international treaty, although ratified or acceded to, the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, amend existing laws or introduce new legislation in order for the treaty to be fully effective on the national territory.

Declarations, on the other hand, are non-binding documents. They instead serve to proclaim a shared point of view of many nations.

The OAS has adopted several declarations and treaties relating to human rights:


American Declaration of the Rights and Duties of Man (1948)

When the American Declaration of the Rights and Duties of Man was signed in April 1948, it became the first international document listing universal human rights and proclaiming the need to protect these rights. The Declaration was adopted by the Ninth International Conference of American States in Bogotá, Colombia. It is applicable to the all the members of the OAS but, since the adoption of the American Convention on Human Rights, the Declaration is mostly applied to those states who have not yet joined the American Convention.

The Declaration is unique in that, unlike its United Nations counterpart, the Universal Declaration of Human Rights, the American Declaration includes both human rights that need to be protected along with duties that individuals have to society. The rights are listed in the first chapter of the Declaration, in Articles 1 through 28, and include civil and political rights, economic, and social and cultural rights, such as to property, culture, work, leisure time, and social security.

Duties are listed in the second chapter, in Articles 29 through 38, and include obligations to society, toward children and parents, to receive instruction, to vote, to obey the law, to serve the community and the nation, with respect to social security and welfare, to pay taxes, to work, and to refrain from political activities in a foreign country that are limited to that country's citizens.

Additionally, the Declaration includes a "general limitation clause". This clause states that the rights of each person are necessarily limited by the rights of others, by the security of all, and by the just demands of the general welfare in a democratic society. The general limitations clause indicates that the OAS accepts more reasons as justifications for the derogation of human rights than the United Nations does.


American Convention on Human Rights (1969)

This treaty, which was adopted in 1969 and entered into force in 1978, enforces much of the notions contained in the American Declaration of the Rights and Duties of Man. As a treaty, it is binding only on the nations that have signed it. It focuses mainly on civil and political human rights, and offers more detailed definitions of these rights than the Declaration does. The treaty also created the Inter-American Court of Human Rights. It offered signatories a chance to sign on to an additional protocol to accept the Court's jurisdiction.

Like the Declaration, the Convention contains a "general limitation clause", stating that the rights of each person are necessarily limited by the rights of others, by the security of all, and by the just demands of the general welfare in a democratic society. The Convention also lists additional justifiable reasons for restricting rights, including: national security, public safety, public order, public health or morals, and the rights or freedoms of others. Additionally, Article 27 permits the suspension of some rights during a national emergency. In this case, a limitation of rights must be non-discriminatory and "strictly required by the exigencies of the situation." Finally, although the Convention did not specifically ban "disappearances", the General assembly has held that disappearances are considered crimes against humanity.


Cartagena Declaration on Refugees (1984)

In 1984, ten Latin American states adopted the Cartagena Declaration on Refugees which contained an extension of the refugee definition found in the 1951 UN Refugee Convention."…persons who have fled their country because their lives, safety, or freedom have threatened by generalised violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed pubic order." This definition was approved by the 1985 General Assembly of the OAS, which resolved to urge member states to extend support and, insofar as possible, to implement the conclusions and recommendations to the Cartagena Declaration on Refugees. Although not formally binding, the Cartagena Declaration on Refugees has become the basis of refugee policy in the region and has been incorporated in to the national legislation of a number of states.


Inter-American Convention to Prevent and Punish Torture (1985)

This Convention was adopted in 1985 and entered into force on February 28, 1987. It defines tortuous acts and renders them illegal; it states who may be prosecuted as a torturer, notably mentioning that "following orders" will not be considered a justifiable excuse for the infliction of torture. It notes that no exceptional circumstances, neither times of war nor potential danger of a prisoner, justifies the use of torture; it also lists legal remedies available to torture victims. States, in signing, agree to adopt national legislation following the guidelines set forth by this treaty, making any form of torture illegal under any circumstance. Additionally, parties to the Convention agree to include torture under their list of extraditable crimes.


Protocol of San Salvador: Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (1988)

This Additional Protocol was adopted in 1988 and entered into force on November 16, 1999. It focuses on the state's obligation to promote social, economic, and cultural human rights, such as those related to labor laws, health issues, education rights, economic rights, rights relating to the family, and rights of children, the elderly, and the handicapped. It demonstrates that states may fulfill these obligations through enacting legislation, enforcing measures of protection, and refrain from discrimination.


Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990)

This Protocol was adopted on June 8, 1990. Any nation that is a party to the American Convention on Human Rights may sign this Protocol. Those states that sign the Protocol agree to eliminate the death penalty, although they may declare, upon signing, the intent to retain the death penalty in wartime for serious military crimes, in keeping with international law. In this case, the state is obligated to inform the OAS Secretary General of its national legislation regarding the use of the death penalty during times of war.


Inter-American Convention on the Forced Disappearance of Persons (1994)

This Convention was adopted in 1994 and entered into force on March 28, 1996. It defines forced disappearance as when an agent of the state or an individual or group, under knowledge and consent from the state, deprives a person of liberty and fails to acknowledge this deprivation, thus prohibiting the person from any access to legal remedies. State parties to this Convention have agreed to ban forced disappearances and to punish those who attempt to commit this crime. It specifies that one cannot use the excuses of "following orders" or "military duty" as a rationale for avoiding punishment for this crime, nor can any exceptional circumstances, such as war time, justify or legalize this act. It continues to define rights of those victims of forced disappearance. The Convention also provides that when the Inter-American Commission on Human Rights receives communication regarding an alleged incident of forced disappearance, it will confidentially contact the government in question for details concerning the situation, regardless of whether or not the petition (or communication) is admissible.


Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (1994)

This Convention was adopted in 1994 and entered into force on March 5, 1995. It defines violence against women as being gender based and having a negative affect on a woman's physical, sexual, or psychological well-being. It lists rights of women, including freedom from violence in both the public and private sphere, as well as freedom from discrimination. State parties are held responsible for not committing violence against women, for preventing such violence from occurring, for enacting appropriate relevant legislation prohibiting such violence, for providing women a just legal recourse in the case of violence, and to promote social awareness and cultural acceptance of these rights of women. Signature states must also include a report on the treatment of women within the state in its annual report to the Inter-American Commission of Women. Additionally, any individual of a member state may send a petition to the Inter-American Commission on Human Rights regarding a violation of Article 7 of the Convention, which list women's rights.


Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (1999)

This Convention was adopted on June 7, 1999. It defines the term "disability" as well as the phrase "discrimination against persons with disabilities". It is designed to allow disabled persons to fully integrate within society without being unjustly excluded on the basis of their disability. It calls for states to further justice for the disabled through legislation, social initiatives, education for the disabled and for others regarding acceptance of those with disabilities, and making buildings, methods of communication, recreation, offices, and homes available to be accessed by the disabled.

The Convention also stipulates the forming of a Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities upon the ratification of the treaty. The Committee will be composed of one representative per signatory state and will be in charge of evaluating state reports, sent every four years, on the progress of fulfilling the Convention's measures for eliminating discrimination against the disabled.


Proposed American Declaration on the Rights of Indigenous Peoples (1997)

The Proposed Declaration was approved by the Inter-American Commission on Human Rights on February 26, 1997. It defines the term "indigenous peoples", and proclaims that these people possess all human rights, including the right to belong to an indigenous community and a freedom from forced assimilation and from discrimination. Indigenous people are also afforded the right to cultural integrity, including the ability to choose their own philosophies, religions, and languages. The state is obligated to allow indigenous people to educate themselves, but the state is also required to ensure that their indigenous population(s) must receive an education; the state must also protect the environment of indigenous land. Indigenous peoples are granted many political rights, including: rights of association and assembly; freedom of thought and expression; and the right to self government. Indigenous populations are granted the right to land, to develop that land, the right to intellectual property, and labor rights.


Human Rights and the Environment (2003)

This declaration was adopted on June 10, 2003. It encourages the interaction between the Organization of American States and other international organizations, such as the United Nations, the World Bank, and the Inter-American Development Bank, on environmental issues. It also promotes cooperation between the OAS human rights and environmental institutions, the Inter-American Commission on Human Rights and the Unit for Sustainable Development and Environment, respectively. It also requests a report on the status of the environment within OAS member states by the Secretary General to the General Assembly.



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Advocacy, Educational and Training Materials

For advocates

Learning, Reflecting and Acting for a Human Rights Future: A Training Manual for the Education of the Human Right to Housing in Urban Communities (by Teresita V. Barramed and Lea L. Espallardo, Quezon City, 1996)
The purpose of this text is to help readers understand the meaning of economic, social and cultural rights through study of the human right to food and nutrition. The text can be used for self-directed learning, in a training or classroom.


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Other Resources

Courses and training opportunities about the Inter-American human rights system

OAS bodies and specialized agencies

 

 

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Historical dates

1910 - Pan-American Union founded

1948 - Organization of American States comes into being with the signing of the Charter of the OAS

1948 - First 21 OAS member states sign the American Declaration of the Rights and Duties of Man

1959 - Inter-American Commission on Human Rights established

1962 - Cuba excluded from participating in the OAS, yet still remains a member

1969 - American Convention on Human Rights

1978 - Inter-American Court of Human Rights established with the entry into of the Inter-American Convention on Human Rights

1997 - OAS Charter amended with the ratification of the Protocol of Washington, allowing the OAS to suspend a member state when the democratically elected government of that state has been overthrown by force.

This guide was developed by Elizabeth Strenio.

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