Should a Second Amendment Case be Petitioned at the Inter-American Commission on Human Rights?
This is part and partial to considering why this type of remedy to fight the U.S. Government’s trend against the Second Amendment which I allege has U.N . backing should be taken.
Organization of American States (OAS)
Washington, D.C., 20006
|NAME||MEMBER STATE||TERM OF OFFICE|
|Evelio Fernández Arévalos||Paraguay||1/1/2004-12/31/2007|
|Paulo Sérgio Pinheiro||Brazil||1/1/2004-12/31/2007|
|Florentín Meléndez||El Salvador||1/1/2004-12/31/2007|
|Clare Kamau Roberts||Antigua & Barbuda||1/1/2002-12/31/2009|
|Freddy Gutiérrez Trejo||Venezuela||1/1/2004-12/31/2007|
|Paolo G. Carozza||United States||1/1/2006-12/31-2009|
|Víctor E. Abramovich||Argentina||1/1/2006-12/31-2009|
If anyone knows of valid reasons why I should not file a complaint of human rights violations with the Inter-American Commission on Human Rights in accordance with Articles 44, 46, and 48 of the American Convention on Human Rights, (known as the Pact of San Joes, Costa Rico), to which they in turn will file a case with the Inter-American Court on Human Rights against the United States in accordance with Article 61 of said Convention then please feel free to reply with your reasons and citing authoritative references supporting your reasons.
See also, The Practice and Procedure of the Inter-American Court of Human Rights by Jo M. Pasqualucci. Cambridge: Cambridge University Press, 2003. 488pp. Available at Barnes and Noble.com and at Amazon.com.
And The Statute of the International Court of Justice: A Commentary (Oxford Commentaries on International Law) (Hardcover) by Christian Tams, Andreas Zimmermann (Editor), Karin Oellers-Frahm (Editor), Christian Tomuschat (Editor). Also available at Barnes and Noble.com
FORM FOR FILING PETITIONS WITH THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
ALLEGING HUMAN RIGHTS VIOLATIONS
The following form, prepared by the Commission’s Executive Secretariat, is intended to make it easier for victims of violations, their family members, organizations of civil society or other persons to file complaints alleging human rights violations by OAS member States.
The form is based on the information that the Commission’s Rules of Procedure require in order to process petitions and to determine whether the State, against which the complaint is brought has violated any of the human rights protected by an international treaty to which it is a party. The required information is stipulated in Article 28 of the Commission’s Rules of Procedure:
Article 28. Requirements for the consideration of petitions. Petitions addressed to the Commission shall contain the following information:
- the name, nationality and signature of the person or persons making the denunciation; or in cases where the petitioner is a nongovernmental entity, the name and signature of its legal representative(s);
- whether the petitioner wishes that his or her identity be withheld from the State;
- the address for receiving correspondence from the Commission and, if available, a telephone number, facsimile number, and email address;
- an account of the act or situation that is denounced, specifying the place and date of the alleged violations;
- if possible, the name of the victim and of any public authority who has taken cognizance of the fact or situation alleged;
- the State the petitioner considers responsible, by act or omission, for the violation of any of the human rights recognized in the American Convention on Human Rights and other applicable instruments, even if no specific reference is made to the article(s) alleged to have been violated;
- compliance with the time period provided for in Article 32 of these Rules of Procedure;
- any steps taken to exhaust domestic remedies, or the impossibility of doing so as provided in Article 31 of these Rules of Procedure; and
- an indication of whether the complaint has been submitted to another international settlement proceeding as provided in Article 33 of these Rules of Procedure.
Before completing the attached form, please read the following instructions carefully.
PDF form in English: https://www.cidh.oas.org/cidh_apps/manual_pdf/MANUAL2002_E.pdf
The form should be filled in as completely as possible and include all available information regarding the particular act alleged to constitute one or more violations of human rights by an OAS member State.
Responses to the questions should be simple and direct. If the information requested is not available, you can save the form and continue to work on it later; if some information is missing, you should indicate information not available or not applicable, as appropriate.
Once complete, the form should be submitted by clicking the button SEND FORM TO IACHR. If you do not have Internet access, the form is also available in PDF format; it can be printed and sent by mail to the following postal address:
Inter-American Commission on Human Rights
1889 F Street, N. W.
Washington, D.C. 20006
and/or by fax to the following number:
Universal Declaration of Human Rights
Everyone has the right to life, liberty and security of person.
Everyone has the right to recognition everywhere as a person before the law.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
No one shall be subjected to arbitrary arrest, detention or exile.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
1. Everyone has the right to freedom of peaceful assembly and association.
1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN
Chapter One: Rights
Article I. Every human being has the right to life, liberty and the security of his person.
Article II. 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.
Article IV. Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.
Article V. Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.
Article XIII. Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.
He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.
Article XVII. Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights.
Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
Article XX. Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.
Article XXI. Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature.
Article XXII. Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature.
Article XXIV. Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon.
Chapter Two: Duties
Article XXXIV. It is the duty of every able-bodied person to render whatever civil and military service his country may require for its defense and preservation, and, in case of public disaster, to render such services as may be in his power.
AMERICAN CONVENTION ON HUMAN RIGHTS “PACT OF SAN JOSE, COSTA RICA”
CHAPTER II – CIVIL AND POLITICAL RIGHTS
Article 8. Right to a Fair Trial
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
Article 13. Freedom of Thought and Expression
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
Article 23. Right to Participate in Government
1. Every citizen shall enjoy the following rights and opportunities:
a. to take part in the conduct of public affairs, directly or through freely chosen representatives;
c. to have access, under general conditions of equality, to the public service of his country.
Article 24. Right to Equal Protection
All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.
Article 25. Right to Judicial Protection
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.
2. The States Parties undertake:
a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;
b. to develop the possibilities of judicial remedy; and
c. to ensure that the competent authorities shall enforce such remedies when granted.
Article 28. Federal Clause
1. Where a State Party is constituted as a federal state, the national government of such State Party shall implement all the provisions of the Convention over whose subject matter it exercises legislative and judicial jurisdiction.
2. With respect to the provisions over whose subject matter the constituent units of the federal state have jurisdiction, the national government shall immediately take suitable measures, in accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfillment of this Convention.
Article 29. Restrictions Regarding Interpretation
No provision of this Convention shall be interpreted as:
a. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;
b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party;
c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or
d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.
Article 31. Recognition of Other Rights
Other rights and freedoms recognized in accordance with the procedures established in Articles 76 and 77 may be included in the system of protection of this Convention.
1. Proposals to amend this Convention may be submitted to the General Assembly for the action it deems appropriate by any State Party directly, and by the Commission or the Court through the Secretary General.
2. Amendments shall enter into force for the States ratifying them on the date when two-thirds of the States Parties to this Convention have deposited their respective instruments of ratification. With respect to the other States Parties, the amendments shall enter into force on the dates on which they deposit their respective instruments of ratification.
1. In accordance with Article 31, any State Party and the Commission may submit proposed protocols to this Convention for consideration by the States Parties at the General Assembly with a view to gradually including other rights and freedoms within its system of protection.
2. Each protocol shall determine the manner of its entry into force and shall be applied only among the States Parties to it.
The following organs shall have competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to this Convention:
a. the Inter-American Commission on Human Rights, referred to as “The Commission;” and
b. the Inter-American Court of Human Rights, referred to as “The Court.”
CHAPTER VII – INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Section 1. Organization
Section 3. Competence
Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party.
1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements:
a. that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law;
b. that the petition or communication is lodged within a period of six months from the date on which the party alleging violation of his rights was notified of the final judgment;
c. that the subject of the petition or communication is not pending in another international proceeding for settlement; and
d. that, in the case of Article 44, the petition contains the name, nationality, profession, domicile, and signature of the person or persons or of the legal representative of the entity lodging the petition.
2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when:
a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;
b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or
c. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.
The Commission shall consider inadmissible any petition or communication submitted under Articles 44 or 45 if:
a. any of the requirements indicated in Article 46 has not been met;
b. the petition or communication does not state facts that tend to establish a violation of the rights guaranteed by this Convention;
c. the statements of the petitioner or of the state indicate that the petition or communication is manifestly groundless or obviously out of order; or
d. the petition or communication is substantially the same as one previously studied by the Commission or by another international organization.
Section 4. Procedure
1. When the Commission receives a petition or communication alleging violation of any of the rights protected by this Convention, it shall proceed as follows:
a. If it considers the petition or communication admissible, it shall request information from the government of the state indicated as being responsible for the alleged violations and shall furnish that government a transcript of the pertinent portions of the petition or communication. This information shall be submitted within a reasonable period to be determined by the Commission in accordance with the circumstances of each case.
b. After the information has been received, or after the period established has elapsed and the information has not been received, the Commission shall ascertain whether the grounds for the petition or communication still exist. If they do not, the Commission shall order the record to be closed.
c. The Commission may also declare the petition or communication inadmissible or out of order on the basis of information or evidence subsequently received.
d. If the record has not been closed, the Commission shall, with the knowledge of the parties, examine the matter set forth in the petition or communication in order to verify the facts. If necessary and advisable, the Commission shall carry out an investigation, for the effective conduct of which it shall request, and the states concerned shall furnish to it, all necessary facilities.
e. The Commission may request the states concerned to furnish any pertinent information and, if so requested, shall hear oral statements or receive written statements from the parties concerned.
f. The Commission shall place itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in this Convention.
2. However, in serious and urgent cases, only the presentation of a petition or communication that fulfills all the formal requirements of admissibility shall be necessary in order for the Commission to conduct an investigation with the prior consent of the state in whose territory a violation has allegedly been committed.
1. If a settlement is not reached, the Commission shall, within the time limit established by its Statute, draw up a report setting forth the facts and stating its conclusions. If the report, in whole or in part, does not represent the unanimous agreement of the members of the Commission, any member may attach to it a separate opinion. The written and oral statements made by the parties in accordance with paragraph 1.e of Article 48 shall also be attached to the report.
2. The report shall be transmitted to the states concerned, which shall not be at liberty to publish it.
3. In transmitting the report, the Commission may make such proposals and recommendations as it sees fit.
1. If, within a period of three months from the date of the transmittal of the report of the Commission to the states concerned, the matter has not either been settled or submitted by the Commission or by the state concerned to the Court and its jurisdiction accepted, the Commission may, by the vote of an absolute majority of its members, set forth its opinion and conclusions concerning the question submitted for its consideration.
2. Where appropriate, the Commission shall make pertinent recommendations and shall prescribe a period within which the state is to take the measures that are incumbent upon it to remedy the situation examined.
3. When the prescribed period has expired, the Commission shall decide by the vote of an absolute majority of its members whether the state has taken adequate measures and whether to publish its report.
CHAPTER VIII – INTER-AMERICAN COURT OF HUMAN RIGHTS
Section 2. Jurisdiction and Functions
1. Only the States Parties and the Commission shall have the right to submit a case to the Court.
2. In order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48 and 50 shall have been completed.
1. If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.
. In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.
1. The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties.
2. That part of a judgment that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgments against the state.
STATUTE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
I. NATURE AND PURPOSES
1. The Inter-American Commission on Human Rights is an organ of the Organization of the American States, created to promote the observance and defense of human rights and to serve as consultative organ of the Organization in this matter.
2. For the purposes of the present Statute, human rights are understood to be:
a. The rights set forth in the American Convention on Human Rights, in relation to the States Parties thereto;
b. The rights set forth in the American Declaration of the Rights and Duties of Man, in relation to the other member states.
With respect to the States Parties to the American Convention on Human Rights, the Commission shall discharge its duties in conformity with the powers granted under the Convention and in the present Statute, and shall have the following powers in addition to those designated in Article 18:
a. to act on petitions and other communications, pursuant to the provisions of Articles 44 to 51 of the Convention;
b. to appear before the Inter-American Court of Human Rights in cases provided for in the Convention;
c. to request the Inter-American Court of Human Rights to take such provisional measures as it considers appropriate in serious and urgent cases which have not yet been submitted to it for consideration, whenever this becomes necessary to prevent irreparable injury to persons;
d. to consult the Court on the interpretation of the American Convention on Human Rights or of other treaties concerning the protection of human rights in the American states;
e. to submit additional draft protocols to the American Convention on Human Rights to the General Assembly, in order to progressively include other rights and freedoms under the system of protection of the Convention, and
f. to submit to the General Assembly, through the Secretary General, proposed amendments to the American Convention on Human Rights, for such action as the General Assembly deems appropriate.
1. In accordance with the provisions of Articles 44 to 51 of the American Convention on Human Rights, the Regulations of the Commission shall determine the procedure to be followed in cases of petitions or communications alleging violation of any of the rights guaranteed by the Convention, and imputing such violation to any State Party to the Convention.
2. If the friendly settlement referred to in Articles 44-51 of the Convention is not reached, the Commission shall draft, within 180 days, the report required by Article 50 of the Convention.
RULES OF PROCEDURE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
PETITIONS REFERRING TO THE AMERICAN CONVENTION ON HUMAN RIGHTS AND OTHER APPLICABLE INSTRUMENTS
Article 26. Initial Review
1. The Executive Secretariat of the Commission shall be responsible for the study and initial processing of petitions lodged before the Commission that fulfill all the requirements set forth in the Statute and in Article 28 of these Rules of Procedure.
2. If a petition or communication does not meet the requirements called for in these Rules of Procedure, the Executive Secretariat may request that the petitioner or his or her representative satisfy those that have not been fulfilled.
3. If the Executive Secretariat has any doubt as to whether the requirements referred to have been met, it shall consult the Commission.
Article 27. Condition for Considering the Petition
The Commission shall consider petitions regarding alleged violations of the human rights enshrined in the American Convention on Human Rights and other applicable instruments, with respect to the Member States of the OAS, only when the petitions fulfill the requirements set forth in those instruments, in the Statute, and in these Rules of Procedure.
Article 28. Requirements for the Consideration of Petitions
Petitions addressed to the Commission shall contain the following information:
a. the name, nationality and signature of the person or persons making the denunciation; or in cases where the petitioner is a nongovernmental entity, the name and signature of its legal representative(s);
b. whether the petitioner wishes that his or her identity be withheld from the State;
c. the address for receiving correspondence from the Commission and, if available, a telephone number, facsimile number, and email address;
d. an account of the act or situation that is denounced, specifying the place and date of the alleged violations;
e. if possible, the name of the victim and of any public authority who has taken cognizance of the fact or situation alleged;
f. the State the petitioner considers responsible, by act or omission, for the violation of any of the human rights recognized in the American Convention on Human Rights and other applicable instruments, even if no specific reference is made to the article(s) alleged to have been violated;
g. compliance with the time period provided for in Article 32 of these Rules of Procedure;
h. any steps taken to exhaust domestic remedies, or the impossibility of doing so as provided in Article 31 of these Rules of Procedure; and,
i. an indication of whether the complaint has been submitted to another international settlement proceeding as provided in Article 33 of these Rules of Procedure.
Article 29. Initial Processing
1. The Commission, acting initially through the Executive Secretariat, shall receive and carry out the initial processing of the petitions presented as follows:
a. it shall receive the petition, register it, record the date of receipt on the petition itself and acknowledge receipt to the petitioner;
b. if the petition does not meet the requirements of these Rules of Procedure, it may request that the petitioner or his or her representative complete them in accordance with Article 26(2) of these Rules;
c. if the petition sets forth distinct facts, or if it refers to more than one person or to alleged violations not interconnected in time and place, the claims may be divided and processed separately, so long as all the requirements of Article 28 of these Rules of Procedure are met;
d. if two or more petitions address similar facts, involve the same persons, or reveal the same pattern of conduct, they may be joined and processed together;
e. in the situations provided for in subparagraphs c and d, it shall give written notification to petitioners.
2. In serious or urgent cases, the Executive Secretariat shall immediately notify the Commission.
Article 30. Admissibility Procedure
1. The Commission, through its Executive Secretariat, shall process the petitions that meet the requirements set forth in Article 28 of these Rules of Procedure
2. For this purpose, it shall forward the relevant parts of the petition to the State in question. The identity of the petitioner shall not be revealed without his or her express authorization. The request to the State for information shall not constitute a prejudgment with regard to any decision the Commission may adopt on the admissibility of the petition.
3. The State shall submit its response within two months counted from the date the request is transmitted. The Executive Secretariat shall evaluate requests for extensions of this period that are duly founded. However, it shall not grant extensions that exceed three months from the date of the first request for information sent to the State.
4. In serious or urgent cases, or when it is believed that the life or personal integrity of a person is in real or imminent danger, the Commission shall request the promptest reply from the State, using for this purpose the means it considers most expeditious.
5. Prior to deciding upon the admissibility of the petition, the Commission may invite the parties to submit additional observations, either in writing or in a hearing, as provided for in Chapter VI of these Rules of Procedure.
6. Once the observations have been received or the period set has elapsed with no observations received, the Commission shall verify whether the grounds for the petition exist or subsist. If it considers that they do not exist or subsist, it shall order the case archived.
Article 31. Exhaustion of Domestic Remedies
1. In order to decide on the admissibility of a matter, the Commission shall verify whether the remedies of the domestic legal system have been pursued and exhausted in accordance with the generally recognized principles of international law.
2. The provisions of the preceding paragraph shall not apply when:
a. the domestic legislation of the State concerned does not afford due process of law for protection of the right or rights that have allegedly been violated;
b. the party alleging violation of his or her rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or,
c. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.
3. When the petitioner contends that he or she is unable to prove compliance with the requirement indicated in this article, it shall be up to the State concerned to demonstrate to the Commission that the remedies under domestic law have not been previously exhausted, unless that is clearly evident from the record.
Charter of the Organization of American States
The American States reaffirm the following principles:
l) The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex;
m) The spiritual unity of the continent is based on respect for the cultural values of the American countries and requires their close cooperation for the high purposes of civilization;
n) The education of peoples should be directed toward justice, freedom, and peace.
The Organization of American States accomplishes its purposes by means of:
a) The General Assembly;
b) The Meeting of Consultation of Ministers of Foreign Affairs;
c) The Councils;
d) The Inter-American Juridical Committee;
e) The Inter-American Commission on Human Rights;
f) The General Secretariat;
g) The Specialized Conferences; and
h) The Specialized Organizations.
There may be established, in addition to those provided for in the Charter and in accordance with the provisions thereof, such subsidiary organs, agencies, and other entities as are considered necessary.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.
An inter-American convention on human rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters.