The Charter of the Organisation of American States established the Organisation 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 1948 American Declaration on the Rights and Duties of Man, as well as the 1969 American Convention on Human Rights, were elaborated.
There is no reference regarding disability in the Charter of the Organisation of American States, but some articles might be relevant to the rights of all persons including those with disabilities. According to article 2: "The Organisation 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 all sectors of the population; (l) urban conditions that offer opportunities for a healthful, productive, and full life ".
Two articles of the American Declaration on 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 to the 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 OAS. Charter, even if States have not ratified the American Convention. It also reflects customary law.
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 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights ("Protocol of San Salvador") 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.
The Inter American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities was adopted by the General Assembly of the Organisation of American States in 1999. The Convention entered into force in 2001. 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.
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 Organisation 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.
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 organisations 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 principle derived from the Velasquez- Rodriguez case, which 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.
The Ninth International Conference of American States, held in Bogota, 1948, 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.