The American Convention on Human Rights (ACHR) is the leading Organization of American States (OAS) human rights treaty. Adopted in 1969, it came into force in 1978. It guarantees, among other things, the right to freedom of expression. The ACHR was preceded by the OAS Charter, the founding document of the OAS, which includes only limited guarantees of human rights, and the American Declaration of the Rights and Duties of Man, both adopted in 1948. The latter provides a simple guarantee for the right to freedom of “expression and dissemination of ideas, by any medium” (Article IV).
Article 13 of the ACHR contains very detailed provisions on freedom of expression. In some respects, it is similar to its international counterpart, Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Like Article 16, Article 13 guarantees everyone the right to “seek, receive, and impart information and ideas,” regardless of frontiers and using any form of communication, including oral, written, print, or art.
Like the ICCPR, the ACHR permits States to restrict freedom of expression, but any restriction must be established by law and be necessary to protect the rights or reputations of others, national security, public order, or public health or morals. This list is identical to its counterpart in the ICCPR. Article 13 also differs in important ways from its international and regional counterparts and, overall, it is generally regarded as being much stronger in nature. It expressly rules out any form of prior censorship, except in relation to public entertainments, for the sole purpose of protecting children. Although prior censorship is regarded with suspicion in all human rights systems, other international courts have not gone so far as to rule it out completely.
The ACHR also explicitly rules out indirect means of restricting freedom of expression, such as governmental or private abuse of controls over newsprint, broadcasting frequencies, or equipment used to disseminate information. Although this is probably implicit in the general guarantee, the prevalence of this form of restriction means that its explicit prohibition in the ACHR has practical importance. Finally, the ACHR, like the ICCPR, provides that incitement to war and hatred on the basis of race or other group affiliation shall be an offense punishable by law. The ACHR, however, provides only for the prohibition of incitement to lawless violence or a similar illegal act, whereas the ICCPR covers incitement not only to violence but also to discrimination and even hostility. The ACHR is thus consistent with US law in the area of hate speech which, unlike most other countries in the world, does not penalize speech which promotes mere hatred, as opposed to a specific illegal act.
The ACHR also differs from other human rights treaties inasmuch as it makes specific provision for a right of reply for anyone injured by inaccurate or offensive statements disseminated by a legally regulated medium of communication. The exercise of the right does not affect any other legal entitlements the claimant may have. It is significant that this right is limited to “legally regulated” media, so that it does not extend to newspapers where they are not legally regulated, as is the case in many countries.
The ACHR establishes two bodies to promote implementation of its provisions. The first, the Inter-American Commission on Human Rights was first established as an autonomous OAS body in 1960, prior to the enactment of the ACHR, as a vehicle for promoting the implementation of the rights in the Declaration. It was subsequently provided for in the ACHR itself. The Commission has a broad promotional mandate which includes fostering awareness and making recommendations to States to further the protection of human rights. It also has the power to consider individual or group complaints concerning alleged violations of the ACHR, but only when the State in question has voluntarily accepted its jurisdiction. In accordance with accepted international practice, such complaints may be accepted only when the State’s internal systems for resolving the problem, normally including an appeal to the courts, have been used without success (known as exhaustion of domestic remedies). If the alleged facts tend to establish a violation, the Commission must try to promote a “friendly settlement” between the parties. If this is not possible, the Commission issues a Report on the case containing its views as to whether there has in fact been a violation and including recommendations as to remedies. These recommendations are not formally (legally) binding on the State.
Second, the ACHR establishes the Inter-American Court of Human Rights. Only States and the Commission may refer a case to the Court, but the latter may do so only after it has issued its own Report on the matter, and the State has failed to take measures to redress the problem. As with the Commission, cases may be referred to the Court only where the State in question has voluntarily submitted itself to the Court’s jurisdiction. For the most part, it is the Commission that refers cases to the Court, although there have also been some significant Advisory Opinions, where States have referred matters to the Court for its opinion outside of the context of a contentious dispute. Unlike the Commission, the decisions of the Court are legally binding and States formally undertake to comply with them. For the most part, States do respect the decisions of the Court.
- Buergenthal, T., & Shelton, D. (1995). Protecting human rights. Kehl, Germany: N. P. Engel.
- Davidson, S. (1997). The inter-American human rights system. Aldershot: Dartmouth.
- Grossman, C. (2001). Freedom of expression in the inter-American system for the protection of human rights. Nova Law Review, 25, 411– 442.
- Harris, D., & Livingston, S. (1998). The inter-American system of human rights. Oxford: Clarendon.
- Medina Quiroga, C. (1998). The battle of human rights: Gross, systemic violations and the inter-American system. Dordrecht: Martinus Nijhoff.