It is helpful / necessary to see what guides the Committee uses to interpret the provisions and decide cases. There are two key indicators of interpretation:
The preamble to a treaty is useful in ascertaining the purpose of the law, and therefore as a guide as to how it might be interpreted. See the preamble to the Convention here
Previous cases and decisions of the Committee. Whilst the Committee is not obliged to follow decisions made in previous cases, there is fairly high degree of consistency in its decisions.
Dilcia Yean and Violeta Bosica v. Dominican Republic - Inter-American Commission on Human Rights, Report 28/01, Case 12.189 (22 February (2001) (C5b vc i)
YAKYE AXA V. PARAGUAY, Inter-American Court of Human Rights, June 2005 (c5n vc ii)
Jorge Odir Miranda Cortez et al. v El Salvador - Case 12.249, Report No. 29/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 284 (2000). (C5b vc iii)
Inter-American Commission on Human Rights, Report 28/01, Case 12.189 (22 February (2001)
In 1997, Dilcia (10) and Violeta, (12) were refused their request for birth certificates by the Dominican civil registry. Both girls are Dominican-born but of Haitian descent. Without a birth certificate, Dilcia and Violeta were effectively denied their right to a nationality and to related civil, economic, political and social rights. They were expelled from school, as only children with Dominican birth certificates are allowed to study.
The Movement for Dominican Women of Haitian Descent (MUDHA), together with the Center for Justice and International Law, and the Human Rights Law Clinic at the University of California, Berkeley filled a complaint before the Inter-American Commission on Human Rights, alleging multiple violations of the American Convention on Human Rights. This international route was chosen as it was felt that the level of national discrimination against those of Haitian descent was so high that the national judiciary would be biased. It was also hoped that by taking the case to an international court, the issue would get international coverage and debate.
The case was brought on the grounds that the girls’ civil rights had been breached, specifically their right to identity and nationality. International courts are less happy to rule directly on economic, social and cultural rights, as these are thought to be policy-related and therefore to be decided by national government. However, by drawing links between the breach of civil rights and their impact on other rights, specifically the rights to health and education, the breach is given a human dimension, and this is what brings media publicity. During the litigation process those taking the case distributed a press packet and press releases to ensure wide media coverage and publicity. The government’s reaction was unanticipated and hostile. They launched a press campaign to discredit the case, building on the prejudice which already existed against Haitians.
Due to the high number of cases submitted to the Inter-American Commission on Human Rights (2,000-3,000 per year) it took five years for the case to be referred to the Inter-American Court of Human Rights, and another two years for it to be tried and for the Court to reach a verdict. In September 2005, the Court found that the Dominican Republic had violated a wide range of rights enshrined in the American Convention, and held that because the Dominican Constitution has the jus soli rule of nationality (nationality is granted based on place of birth) the process applied to the two girls was discriminatory. The court awarded each of the girls $8,000 for damages. It also ordered the government to circulate the sentence publicly, offer a public apology to the victims, and institute a broad range of institutional reforms, relating to nationality and access to education, to ensure that the violation did not happen again.
The government has not complied with any of these judgements, and has yet to publicly apologise or pay the $8,000. But they have issued birth certificates and the girls did eventually access schooling. Even without the implementation of the Court’s ruling the girls, and others of Haitian descent, have gained significantly through the proceeding. They have gained legitimacy for the right they have been fighting for for years, to be legally recognised as Dominican, and they know that there is an international court, and movement, which agrees with them. This has helped strengthen the struggle.
Case 12.249, Report No. 29/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 284 (2000)
Facts: The petitioners were people living with HIV/AIDS. They alleged that the Government of El Salvador’s failure to provide them with triple therapy medication violated their rights to life (Article 4), freedom from inhumane treatment (Article 5), equal protection (Article 24), judicial protection (Article 25) and economic, social and cultural rights (Article 26) provided in the American Convention on Human Rights. They also alleged that it was a violation of the right to health guaranteed by Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).
Decision: The Commission ruled while it was not competent to determine violations of Article 10 (the right to health) of the Protocol of San Salvador (according to Art. 19(5) of the Protocol of San Salvador, the Commission and the Inter-American Court of Human Rights only have jurisdiction to consider claims with respect to Art. 8 (Trade Union Rights) and Art. 13 (Right to Education) of the Protocol), it would use this and the other economic, social and cultural rights provisions of the Protocol of San Salvador for interpretive purposes in order to more precisely define the guarantees under Article 26 of the American Convention.
Right to education relevance – If the court you take the case to feels they can’t rule explicitly that a violation has taken place, it might still use prescribed education rights as interpretative tools.
To see the full text of the treaty click on the following link: http://www.cidh.org/annualrep/2000eng/ChapterIII/Admissible/ElSalvador12.249.htm
Adapted from COHRE’s Litigating Economic, Social and Cultural Rights: Legal Practitioners Dossier" (2006) http://www.cohre.org/store/attachments/COHRE%20Legal%20Practitioners%20Dossier.pdf at p.267
Inter-American Court of Human Rights, June 2005
The Yakye Axa indigenous community sought possessory rights over the community’s ancestral lands, which Paraguay had promised to them for more than a decade. They claimed that in failing to guarantee such rights, Paraguay had violated the rights of the Axa community including Article 4 of the Inter-American Convention on Human Rights.
This article guarantees that “every person has the right to have his life respected.” In ruling in favour of the plaintiffs, the Court found that exclusion of the Yakye Axa community from their traditional lands for the past 12 years had endangered their survival. These conditions, the Inter-American Court observed, had negatively impacted the nutrition and health of the Yakye Axa community members, especially children. The Court held that these problems result from violations of the right to a dignified existence and other basic rights, such as the right to education and the right to a cultural identity.