REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS ON THE STATUS
OF WOMEN IN THE AMERICAS
The Inter-American Commission on Human Rights appointed Member Dean
Claudio Grossman Special Rapporteur on women's rights during its 85th period
of sessions, with a mandate to analyze and report on the extent to which
member state legislation and practices which affect the rights of women comply
with the obligations established in the American Declaration of the Rights and
Duties of Man and the American Convention on Human Rights.
These instruments provide broad guarantees of equality and freedom from
discrimination to all individuals, as do the constitutions of the member
states. However, as the member
states have recognized, and the Commission has become increasingly aware,
discriminatory legislation and practices persist which prevent women from
fully exercising the rights to which they are entitled.
The Special Rapporteur presented his report to the Commission, which
approved it during its 98th period of sessions, on March 6, 1998.
The report begins with an orientation on the institutional and legal
framework of the inter-American human rights system and how its mechanisms may
be utilized to address deficiencies at the national level which impede the
ability of women to exercise their rights. The report then explains the
methodology of the Rapporteur’s study and analysis, and sets forth initial
findings derived from the information gathered on a core set of issues,
including: institutional and legal guarantees at the national level; the
question of juridical capacity; the right to take part in the public affairs
and service of one's country; the right to life, physical integrity, and to be
free from violence; and the right to equal protection and to be free from
The report concludes by setting forth the recommendations of the
Commission aimed at: remedying instances of de facto and de jure
discrimination which impede the ability of women to fully exercise their
rights; addressing the consequences of such discrimination; and developing
further initiatives in pursuit of these objectives within the regional system.
Chief among these are recommendations that member states immediately
initiate action to identify and reform legislation and practices which have
the purpose or effect of discriminating on the basis of gender in order that
all such instances are eliminated prior to the year 2000. Further, it is crucial that member states evaluate the legal
recourses provided under domestic law in order to develop and reinforce their
capacity to provide available and effective remedies to women who have been
subjected to gender discrimination. The report recommends that the Commission
focus its work with respect to the rights of women in particular on the
question of violence against women and the inter-American human rights system.
Beyond the present report and recommendations, this initiative was
designed to raise awareness of the approaches to promoting and protecting
women's rights that exist in the inter-American sphere, and to further develop
working links between relevant state and non-state actors and the Commission.
The Commission wishes to recognize the contribution of Argentina, Belize, Brazil, Canada, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Guatemala, Guyana, Jamaica, Panama, Paraguay, Peru, Mexico, Uruguay and Venezuela, as well as the nongovernmental organizations: Instituto de Estudios de la Mujer "Norma Virginia Guirola de Herrera" CEMUJER (El Salvador) and the Centro de Estudios de la Mujer - Honduras CEM-H (based in Tegucigalpa), in providing substantive responses to the project questionnaire upon which this report is based. The Commission appreciates the interest and collaboration received from these States and organizations, from the experts with whom the Rapporteur has consulted, and from other entities of the system, such as the Inter-American Commission of Women and the Pan-American Health Organization, and understands it to be a reflection of the region-wide priority that has been accorded to advancing the status of women.
The human rights obligations assumed by states as a result of
membership in the Organization of American States provide a basis for action
at the national level. In a democratic system, responsibility for guaranteeing the
protection of individual rights necessarily rests first and foremost at the
domestic level. The Commission's
appointment of a Special Rapporteur, his analysis of national law and
practice, and the recommendations issued represent a focused effort to build
on and reinforce initiatives at the national level, and to work with member
state governments and civil society in enhancing the situation of women's
rights in the Americas. The Rapporteur extends his appreciation to Elizabeth
A. H. Abi-Mershed, Senior Specialist, and Laura Langberg, Project Consultant,
for their assistance in preparing this report.
In 1994, the Commission renewed its commitment to ensuring that the
rights of women in each OAS member state are fully respected and ensured by
appointing a Special Rapporteur on the issue.
While the constitutions of the member states of the OAS formally
recognize the equality of women and men, the Commission had become
increasingly aware that an examination of national legal systems and practices
revealed the persistence of discrimination based on gender in both law and in
Dean Claudio Grossman was appointed Special Rapporteur on women's
rights by the plenary of the Commission during its 85th period of sessions to
study how member state legislation and practices which affect the rights of
women comply with the fundamental obligations of equality and
nondiscrimination established in the American Declaration of the Rights and
Duties of Man and the American Convention on Human Rights.
The present report sets forth the initial findings of that study,
identifying instances of de facto and de jure discrimination
against women within the member states of the OAS, and issuing recommendations
aimed at assisting those states in enhancing compliance with their
inter-American human rights obligations.
This is the first time the Commission has adopted a comprehensive study
of the status of women's rights in the hemisphere.
Chapter I provides an orientation on the institutional and legal
framework of the inter-American human rights system and the approaches and
mechanisms it offers, with emphasis on how they may be utilized to address
issues affecting the ability of women to exercise their rights.
Chapter II reviews the activities of the Special Rapporteur in
preparing the study and report, and explains methodology of the project.
Chapter III sets forth initial findings derived from the information
gathered, organized around a set of core issues: institutional and legal
guarantees at the national level; the question of juridical capacity; the
right to take part in the public affairs and service of one's country,
including the right to stand for election; the right to life, physical
integrity, and to be free from violence; and the right to equal protection and
to be free from discrimination. Finally,
Chapter IV sets forth recommendations aimed at remedying instances of de
facto and de jure discrimination which impede the ability of women
to freely and fully exercise their rights, at addressing the consequences of
such discrimination, and at developing further initiatives within the regional
system to facilitate these objectives.
THE INTER-AMERICAN HUMAN RIGHTS SYSTEM AND THE RIGHTS OF WOMEN
Inter-American Legal and Institutional Framework
Respect for the fundamental rights of each individual, on the basis of
the principles of equality and non-discrimination, is a cornerstone of any
democratic system, and a fundamental principle underlying the Organization of
American States. The preamble of
the OAS Charter affirms the goal of a consolidating, "within the
framework of democratic institutions,  a system of individual liberty and
social justice" based on respect for the essential rights of women and
men. Article 3.k reaffirms, as a
basic principle of the Organization, "the fundamental rights of the
individual without distinction as to race, nationality, creed, or sex."
The inter-American human rights system establishes and defines a set of
basic rights, obligatory standards of conduct to promote and protect those
rights, and the organs that monitor their observance.
Convention on Human Rights (Pact of San José) and the American Declaration of
the Rights and Duties of Man, the principal normative instruments of the
system, explicitly prohibit discrimination on the basis of sex.
(See infra section I.A.1.) The American Convention is binding
upon the States Parties thereto through ratification.
Declaration is a source of legal obligations as the instrument which sets
forth the human rights obligations of member states to the OAS Charter, as
well as through customary international law with respect to many of its
To strengthen the
normative framework of protection and promotion of the rights of women, the
General Assembly of the OAS adopted the Inter-American Convention on the
Prevention, Punishment and Eradication of Violence against Women (Convention
of Belém do Pará). This recent
Convention, which entered into force in March of 1995, now has 27 States
Parties, and provides that petitions complaining of violations may be
presented before the Inter-American Commission on Human Rights.
(See infra section I.A.2.)
The Inter-American Commission on Human Rights ("Inter-American
Commission" or "Commission"), as the principal organ of the OAS
charged with the promotion and protection of human rights in the Americas has
a special role to play in furthering compliance with the Charter principle of
respect for the fundamental rights of each person on the basis of the
principles of equality and nondiscrimination.
Section I.B, infra, provides an overview of the mechanisms
through which the Commission discharges its mandate.
The Inter-American Court of Human Rights, established by the American
Convention on Human Rights ("American Convention"), exercises
advisory jurisdiction to interpret human rights norms in effect in the
Americas. The advisory opinions
of the Court provide authoritative interpretation of legal issues concerning
human rights instruments applicable in the Americas.
The Court exercises compulsory jurisdiction to interpret and apply the
provisions of the American Convention in cases where the States Parties
concerned have expressly declared their acceptance of that competence.
The regional system also benefits from the work of the Inter-American
Commission on Women. Created in 1928, it was the very first official
intergovernmental agency in the world expressly created to ensure recognition
of the civil and political rights of women.
Its legacy includes
active involvement in the establishment of the first systemic norms in favor
of the rights of women: the Inter-American Conventions on the Nationality of
Women (Montevideo, Uruguay 1933), the Granting of Political Rights to Women
(Bogotá, Colombia 1948), and the Granting of Civil Rights to Women (Bogotá,
Recently, the CIM
played the decisive role in drafting and presenting the text of the
Inter-American Convention on the Prevention, Punishment and Eradication of
Violence against Women.
Looking at the history of the hemisphere to the present, it is clear
that the challenge of consolidating truly participatory democracy to which the
member states of the OAS have committed themselves and the Organization
requires strengthening the participation of all social sectors in the
political, social and economic life of each nation.
As the member states have recognized, discrimination in law and in fact
continues to hinder the ability of women to fully contribute to this crucial
The Commission notes
with satisfaction that member states have established as priorities
strengthening the role of women in society, further developing mechanisms for
the advancement of women, and incorporating gender analysis in the design and
implementation of public policy.
As this report bears
out, the designation of priorities at the regional level both builds upon and
reinforces action taking place at the national level.
Enhancing the participation of women in national society is necessarily
an integral part of the work plan of various other entities of the OAS, as is
the case with the Unit for the Promotion of Democracy (UPD), which most
recently cosponsored a seminar on women and political participation in
December of 1997. For its part,
the Permanent Council of the OAS announced the establishment of a new
initiative to coordinate efforts in this sphere in November of 1997.
Further, the member states are including their commitment to the
advancement of women as an important theme in preparations for the Summit of
the Americas to take place in Santiago de Chile in April of 1998.
of nondiscrimination and equal protection underlying the constitutive
instruments of the regional human rights system
The instruments of the inter-American human rights system, like those
of the universal and regional systems generally, are based on broad principles
of equality and nondiscrimination. While
the present report focuses on the principal regional instruments, it
necessarily draws upon the larger international framework, in particular, the
Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights ("ICCPR"), the International Covenant on Economic,
Social and Cultural Rights ("ICESCR"), the Convention on the
Elimination of All Forms of Discrimination Against Women ("the Women's
Convention"), and customary international law.
Articles 1 and 2 of the Universal Declaration affirm that "all
human beings are born free and equal in dignity and rights," and that
every person is therefore entitled to the rights and freedoms set forth
"without distinction of any kind" including sex.
The general legal obligations set forth in, inter alia, Articles
2.1, 3, 4.1 and 26 of the ICCPR and Articles 2.2 and 3 of the ICESCR, which
require all parties to refrain from discrimination on enumerated grounds
including gender are developed and amplified in the provisions of the Women's
Convention. The latter sets forth in Article 1 that the term
"discrimination against women"
shall mean any distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and
definition covers any difference in treatment on the basis of sex which:
Intentionally or unintentionally disadvantages women;
prevents recognition by society as a whole of the rights of women in
the public and private spheres; or,
prevents women from exercising the human rights to which they are
2 requires States Parties to pursue, "by all appropriate means and
without delay, a policy of eliminating discrimination against women"
which includes the duty to refrain "from any act or practice of
discrimination against women and to ensure that public authorities and
institutions  act in conformity with this obligation," as well as the
duty to adopt the legislative and other measures required "to modify or
abolish existing laws, regulations customs and practices which constitute
discrimination against women."
The American Convention on Human Rights, like other principal
international and regional human rights treaties, is based on broad principles
of non-discrimination and equal protection of and before the law.
Article 1 of the Convention provides that each State Party undertakes
to "respect and ensure the rights and freedoms" set forth "and
to ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms, without any discrimination for reasons
of, inter alia, sex. Where
a recognized right is not already protected by legislative or other means, a
State Party is obliged to take the measures necessary to give it effect
The Convention protects a broad range of civil and political rights.
The right to be recognized as a person before the law is set forth in
Article 3. The right to equal
protection of and before the law is established in Article 24, and is
manifested more specifically in Article 17, concerning "rights of the
family," which specifies that "States Parties shall take appropriate
steps to ensure the equality of rights and the adequate balancing of
responsibilities of the spouses as to marriage...."
While the Convention allows for the suspension of certain rights during
emergency situations which meet the criteria stipulated in Article 27, such
measures may not discriminate on the basis of, inter alia, sex.
The American Declaration sets forth the rights that member states not
party to the American Convention pledge to uphold pursuant to ratification of
the OAS Charter. It remains a source of obligation for all member states.
recognizes the right of each person to be "equal before the law and to
have the rights and duties established in th[e] Declaration, without
distinction as to race, sex, language, creed or any other factor."
Like the American Convention, the Declaration recognizes a broad range
of rights, although its provisions are less fully developed, and differ in
certain respects from those of the former.
The right to equality before the law is established in Article II, and
the right to recognition of one's juridical personality and civil rights is
set forth in Article XVII.
These core instruments have been augmented by: the Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights (Pact of San Salvador), the Protocol to Abolish the Death
Penalty, the Inter-American Convention to Prevent and Punish Torture, the
Inter-American Convention on Forced Disappearance of Persons, and, most
recently, the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women (Convention of Belém do Pará).
Of these, only the Protocol on Economic, Social and Cultural Rights has
yet to enter into force. This
remains an important objective, given that the quest for women to achieve the
full and equal enjoyment of their rights requires the effective implementation
of all categories of rights, consistent with their indivisibility.
The Pact of San Salvador makes explicit certain rights which are not
fully enjoyed by women, such as the right to work under just, equitable and
satisfactory conditions (Article 7).
Convention of Belém do Pará
The Inter-American Convention on Violence against Women, known as the
"Convention of Belém do Pará," is unique.
Within the regional system, the development and entry into force of the
Inter-American Convention on the Prevention, Punishment and Eradication of
Violence against Women represents the re-envisioning of inter-American human
rights law to apply in a gender-specific way.
The adoption of the Convention reflected a powerful consensus among
both state and non-state actors that the struggle to eradicate gender violence
requires concrete action and effective guarantees.
This initiative both
influenced and drew from the recognition of violence against women as a human
rights violation at the 1993 World Conference on Human Rights, the adoption of
the UN Declaration on the Elimination of Violence against Women later that
year, and the further developments of the Fourth World Conference on Women in
1995. Notwithstanding that the
Convention of Belém do Pará is the newest of the inter-American human rights
instruments, it is the most widely ratified, with 27 States Parties.
The Convention of Belém do Pará recognizes that violence against
women is a manifestation of the historically unequal power relations between
women and men. Violence against
women is defined in Article 1 as:
any act or conduct, based on gender, which causes death or physical,
sexual or psychological harm or suffering to women, whether in the public or
The Convention's elaboration of violence against women is firmly
grounded in the basic rights already recognized in the inter-American human
rights system, including the rights to life; physical and mental integrity,
personal liberty; and to equal protection of and before the law.
Article 5 recognizes that violence prevents and nullifies a woman's
exercise of other fundamental rights, and provides that: "Every woman is
entitled to the free and full exercise of her civil, political, economic,
social and cultural rights, and may rely on the full protection of those
rights as embodied in regional and international instruments on human
rights." The Convention
further addresses the interrelationship between gender violence and
discrimination, establishing in Article 6 that the right of women to be free
from violence includes, inter alia:
The right of women to be free from all forms of discrimination; and,
The right of women to be valued and educated free of stereotyped
patterns of behavior and social and cultural practices based on concepts of
inferiority or subordination.
Implementing and enforcing the right of women to be free from violence
requires determining when gender-violence triggers state responsibility.
Article 7 of the Convention sets forth the principal undertakings of
States Parties to ensure that their agents refrain from any "act or
practice" of gender violence, and to "apply due diligence" to
prevent, investigate and punish violence against women whenever it occurs. States Parties must take the measures necessary to give
effect to the objectives of the Convention, and women who have been subjected
to violence must have access to available and effective recourse to obtain
protective measures, or to seek restitution or reparation.
The protection mechanisms set forth in Articles 10 through 12 are
three-fold. First, States Parties
are required to report to the CIM on measures adopted and obstacles confronted
in addressing gender violence. Second,
the Convention authorizes individuals to file petitions with the IACHR
complaining of a violation of its principal undertakings.
The broad standing requirement replicates that contained in the
American Convention: any person, group, or a nongovernmental organization
legally recognized in a member state may file such a denunciation, which will
then be processed by the Commission according to its Regulations. Third, a
State Party or the Commission of Women may request that the Inter-American
Court of Human Rights issue an advisory opinion on the interpretation of the
As of the end of 1997, the Convention of Belém do Pará has only been
invoked in one petition, which is currently being studied in accordance with
the Commission's procedures.
Protection mechanisms of the inter-American human rights system as applied to
promoting and protecting the rights of women
As the principal organ of the OAS mandated to promote and protect human
rights in the hemisphere, the Inter-American Commission on Human Rights has a
unique role to play in assisting the member states in their efforts to respect
and ensure the rights of the individuals subject to their jurisdiction. Among its many functions, the Commission is charged with:
promoting awareness of human rights in the Americas;
providing member states with advisory services in the field of human
monitoring the situation of human rights in each member state and
carrying out on site observations;
acting on individual petitions alleging human rights violations;
preparing studies and reports; and,
making recommendations to OAS member states for the adoption of
progressive measures in favor of human rights.
of the exceptional characteristics of the inter-American human rights system
is the amplitude of its mandate and the diversity of mechanisms through which
it can take action.
individual petition system
Any person or group can file a petition alleging the violation of the
American Convention, Convention of Belém do Pará, or in the case of States
not parties, the American Declaration. While
it is usually necessary to identify the victim so that the respective state
can investigate and respond to the allegations, the identity of the petitioner
may be kept in confidence. The
petition must be in writing, it must be signed, and it must set forth facts
which tend to show the violation of a protected right.
Once a petition is reviewed and the basic requirements to initiate
processing are deemed to have
been met, the American Convention and the Commission's Statute and Regulations
provide for a process to gather information.
This includes transmitting the relevant portions of the petition to the
Government with a request for information in response.
The petitioner will have the opportunity to submit observations on any
response, as well as additional information, and the Government will
thereafter be requested to submit its own observations. This process may be
repeated when necessary. The
Commission may, at the request of a party or its own initiative, convene both
parties for a hearing to receive new information, testimony or legal
arguments. The Commission also
has the competence to carry out an on site investigation of an individual
case, although this is rare.
In order for the Commission to admit a case under the American
Convention, American Declaration, or the Convention of Belém do Pará, for
consideration on the merits, it must be satisfied that certain requirements
have been met. First, and most
importantly, because international and regional human rights systems are
designed to be subsidiary to national systems, the party alleging the
violation must have exhausted all available remedies under domestic law.
Exceptions may be made when the legislation of the state concerned did
not provide due process, the party was denied access to those remedies, or
when there was unwarranted delay in reaching a final judgment--in other words,
if remedies were unavailable as a matter of law or fact.
Second, a petition must be submitted in a timely manner.
In the case where a final judgment has been issued by a domestic court,
the petition must be filed with the Commission within six months of
notification. Otherwise, it must
be filed within a reasonable time from the occurrence of the situation
denounced. Third, the Commission
will not examine a complaint which essentially duplicates a petition pending
or previously settled by itself or by another international governmental
organization of a similar nature. Where
a case is opened, but the basic requisites such as the foregoing are not shown
to have been met, the Commission will declare the case inadmissible.
At any stage during the processing, the Commission is authorized
pursuant to Article 48.1.f of the Convention to facilitate the "friendly
settlement" of the situation denounced if the parties wish to avail
themselves of that procedure. Generally,
once the initial written proceedings have been completed, the Commission will
notify both parties that it is placing itself at their disposal for this
purpose for a fixed period of time. If
the parties are so disposed, the Commission will assist, for example, by
arranging meetings, transmitting communications, and otherwise mediating
negotiations. Pursuant to the terms of Article 48.1.f, any agreement
reached by the parties will be reviewed by the Commission to evaluate whether
it is in accord with "respect for the human rights recognized" in
the American Convention before the matter can be deemed to have been amicably
When a case has not been resolved through friendly settlement, and is
ready for decision, the Commission draws up an initial report of its findings
referred to in Article 50 of the Convention to send to the State in question.
In cases where a violation has been established, the Commission sets
forth recommendations to be implemented by the State, generally aimed at
securing a full investigation of the facts, the prosecution and punishment of
those determined responsible, and action to repair the consequences suffered
by the victim. The State has a first confidential opportunity to take action
on the recommendations, and is asked to report within a fixed time on the
measures taken. The Commission
will evaluate any response received and decide between two alternatives.
It may adopt a final report, referred to in Article 51 of the
Convention, to be sent to both parties, in which it will report on the extent
of compliance with its recommendations, and, where necessary, issue
recommendations with an additional period for action.
After that period has expired, the Commission will decide whether to
publish the final report.
As an alternative to
adopting a final report, if the State in question has accepted the compulsory
jurisdiction of the Inter-American Court, the Commission may decide to submit
the case for adjudication.
The Commission and Court also have the capacity to request that a State
take protective action on an urgent basis.
Pursuant to Article 29 of its Regulations, in "urgent cases, where
it becomes necessary to avoid irreparable damage to persons, the Commission
may request that precautionary measures be taken to avoid irreparable damage
in cases where the denounced facts are true."
The Commission may request that the Court order the adoption of
provisional measures under similarly grave circumstances in a matter that has
not yet been submitted to the Court for consideration.
This emergency action is taken without prejudice to any future decision
on the merits of the situation denounced, and is generally taken to protect
the life and/or physical and mental integrity of an individual.
of the system addressing issues of gender
The first analysis within the system expressly involving gender bias
arose in the context of a request for an advisory opinion before the
Inter-American Court. In 1983, the State of Costa Rica asked the Court to examine
the compatibility of several proposed amendments to its Constitution
concerning nationality and naturalization.
One of the amendments would have given a foreign woman who married a
Costa Rican special consideration in obtaining citizenship, but provided no
corresponding consideration for a foreign man in that situation. In its opinion, the Inter-American Court followed the basic
jurisprudence of the European system in reasoning that a distinction in
treatment is discriminatory if it "has no objective and reasonable
The Court determined
that the preference for according a husband's nationality on his wife was
based on the historical practice of conferring authority within matrimony and
the family upon the husband/father, and was therefore "an outgrowth of
Court determined that the proposed distinction could not be justified, and was
incompatible with the right to equal protection generally (Article 24), and
with the requirement that States "take appropriate steps to ensure the
equality of rights and the adequate balancing of responsibilities ... [in]
marriage" (Article 17).
The Commission's final report on the case of Raquel Martín de
Mejía, adopted in March of 1996, addressed the question of rape as
torture under the American Convention and under the Convention to
Prevent and Punish Torture.
The fact that the
State concerned, Peru, contested the admissibility of the case, but never
responded to the Commission's requests for information on the merits raised
certain questions with respect to the burden and standard of proof. Pursuant to Article 42 of its Regulations and its
longstanding practice, when a government fails to provide information, the
Commission may presume the facts alleged to be true to the extent they are not
contradicted by other evidence. The
Commission took into account that the region of the country in question had
been under a state of emergency and military control at the time of the facts,
and that the practice of rape by members of the security forces in such areas
had been extensively documented and reported on by intergovernmental and
nongovernmental groups. On the
basis of the petitioners' claims and these other reports, measured against the
criteria of "consistency, credibility and specificity," the
Commission presumed the facts alleged to be true.
In addressing the rape itself, the Commission determined that each of
the three elements set forth in the Inter-American Convention to Prevent and
Punish Torture had been met: (1) "an intentional act through which
physical and mental pain and suffering is inflicted on a person;" (2)
"committed with a purpose;" (3) “by a public official or by a
private person acting at the instigation of the former."
The analysis relative to the first element takes into account both the
physical and psychological suffering caused by rape.
The report notes the short and long term consequences for the victim,
as well as the reluctance of many victims to denounce this violation.
In addition to determining that the rapes were inflicted against Raquel
Mejía as torture, the Commission found that they violated her right to have
her honor respected and her dignity recognized (Article 11).
Recalling the words of the UN Special Rapporteur against Torture, that
rape affects women "in the most sensitive part of their personality"
with the effects aggravated by the fact that "in the majority of cases
the necessary psychological treatment and care will not ... be provided,"
the Commission characterized sexual abuse generally as "a deliberate
outrage" to the dignity of women.
The foregoing case may be compared to that of María Elena Loayza
Tamayo, in which the Inter-American Court raised but declined to address
certain questions in examining rape as a human rights violation.
having found Peru responsible for violations of multiple Articles of the
American Convention pursuant to its review of the case, presented claims
before the Court that the victim had been: arbitrarily and illegally arrested
and detained; subjected to torture and inhuman treatment including rape by
State agents; and that her right to a fair hearing and judicial protection had
been violated. According to the
pleadings, she was held incommunicado for the first ten days of her detention,
and was subjected to torture and inhuman treatment in order to coerce her to
confess to having ties to Sendero Luminoso.
The submissions included sworn statements from the victim that, while
held incommunicado, she had been raped by several State agents.
The Court found the State responsible for violations of the Articles
cited by the Commission, and ordered the State to release the victim and pay
the costs and reparations to be established in the next stage of the case.
At the same time, without setting forth any substantive examination, or
articulating either the standard or burden of proof, the Court indicated that
it could not find the alleged rape by State agents to have been proven.
In October of 1996, the Commission adopted its final report on the Case
of X and Y, which concerned a practice in Argentina of routinely
requiring that female family members wishing to have personal contact visits
with an inmate undergo vaginal inspections.
A petition had been
filed with the Commission in December of 1989, alleging that the wife of an
inmate and their thirteen year old daughter had been subjected to such
inspections without regard for whether there were special circumstances to
warrant extraordinary measures. Ms.
X had filed a writ of amparo demanding that the inspections cease.
This writ was rejected at first instance, accepted on appeal, and then
rejected by the Supreme Court of Argentina on the basis that the inspections
were not flagrantly arbitrary under the terms of the law of amparo.
In balancing the interests of those subject to such searches against
the state's interest in maintaining security within its prisons, the
Commission characterized "a vaginal search [as] more than a restrictive
measure as it involves the invasion of a woman's body."
"Consequently, the balancing of interests involved" must hold
the government "to a higher standard."
In its report, the Commission set out a four part test to determine the
lawfulness of a vaginal inspection or search: "1) it must be absolutely
necessary to achieve the security objective in the particular case; 2) there
must not exist an alternative option; 3) it should be determined by judicial
order; and 4) it must be carried out by an appropriate health
respect to Ms. Y, who was thirteen years old at the time in question, the
Commission found "it is evident that the vaginal inspection was an
absolutely inadequate and unreasonable method."
The Commission determined that the facts denounced gave rise to State
responsibility for violations of Articles 5 and 11, 25 and 8, and 1.1.
For a brief introduction to the system, and the texts of the human rights
instruments, regulations and statutes, see IACHR, Basic Documents Pertaining to Human Rights in the
Inter-American System, OEA/Ser.L/V/II.92, doc. 31 rev. 3, May 3,
The following member states are party to the American Convention on Human
Rights: Argentina, Barbados,
Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic,
Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico,
Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay
See generally, IACtHR, Advisory Opinion OC-10/89, "Interpretation
of the American Declaration of the Rights and Duties of Man within the
Framework of Article 64 of the American Convention on Human Rights,"
No. 10, July 14, 1989.
As of the end of 1997, the following states had ratified the Convention of
Belém do Pará: Argentina, The Bahamas, Barbados, Belize, Bolivia, Brazil,
Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El
Salvador, Guatemala, Guyana, Haiti, Honduras, Nicaragua, Panama, Paraguay,
Peru, St. Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines,
Trinidad and Tobago, Uruguay and Venezuela.
Those States Parties which have expressly accepted the compulsory
jurisdiction of the Inter-American Court are:
Argentina, Bolivia, Chile, Colombia, Costa Rica, Ecuador, El
Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, Suriname,
Trinidad and Tobago, Uruguay and Venezuela.
The CIM was created by the Sixth Conference of American States.
A Specialized Organization of the OAS, the CIM identifies and
recommends strategies designed to eliminate discrimination against women and
promote their full incorporation into national development processes, and
acts as an executing agency, as well as a catalyst, for development
cooperation activities aimed at increasing that incorporation.
See generally, Strategic
Plan of Action of the Inter-American Commission of Women (presented
at the Fourth World Conference on Women (Beijing 1995).
See generally, CIM, "A Century of Struggle for Women's Rights in
the Americas: CIM Achieving the Promise," (pamphlet pub., 1995).
Civil "La Mujer y el V Centenario de America y Venezuela",
Historia de la CIM 1928 - 1992
AG/RES. 1432 (XXVI-0/96).
See AG/DEC. 8 (XXV-0/95), AG/RES. 1432 (XXVI-0/96).
Strengthening the role of women in national life has also been deemed
a priority in the preparatory technical meetings for the Summit to be held
in Santiago Chile in April of 1998. The
member states are also examining the status of women within multilateral
organizations, including the OAS. The
member states have set goals for the OAS which include fully incorporating
the notion of gender equity in its activities, strengthening the
participation of women in projects and programs, promoting the advancement
of women at all levels, and incorporating gender issues in its development
activities. See AG/RES.
829 (XVI-0/86), 933 (XVIII-0/88), 1061 (XX-0/90), 1192 (XXII-0/92) and 1303
See OC-10/89, supra, paras. 39-43, 45-47.
It was drafted under the auspices of the Inter-American Commission of Women,
whose Delegates and Secretariat undertook extraordinary efforts to: carry
out an Inter-American Consultation on Women and Violence in 1990; construct
and adopt a text over the next couple of year; ensure its adoption by the
General Assembly in June of 1994; and impel its entry into force by March of
the following year.
While the Convention of Belém do Pará does not expressly provide for the
exercise of the Inter-American Court's contentious jurisdiction, as noted,
the rights it confers are profoundly linked to those recognized in the
American Convention, which gives rise to obligatory jurisdiction for claims
susceptible to Court jurisdiction under Article 51.
With respect to the member states not party to the American Convention, once
the processing has been completed, the Commission will issue a final
decision including the facts and its conclusions, and recommendations where
pertinent, with a deadline set for compliance. Where
the measures recommended are not implemented within that deadline, the
Commission may decide to publish its decision.
There is a procedure, which may only be utilized once, whereby a
party to the case may request that the Commission reconsider its conclusions
See IACHR, Advisory Opinion OC-4/84, supra n. 12, at para. 56
(citing ECtHR, Belgian Linguistic Case, Judgment of July 23, 1968, Ser. A
No. 6, at 34). For additional
examples of the European Court's application of this standard, see
generally, ECtHR, Marckx v Belgium, Judgment of March 13, 1978, Ser. A No.
31, paras. 33-34, 38-43; Rasmussen v. Denmark, Judgment of Nov. 28, 1984,
Ser. A No. 87, paras. 38-42; Abdulaziz, Cabales and Balkandali v United
Kingdom, Judgment of May 28, 1985, Ser. A No. 94, paras. 72, 74-83.
The standard applied is also consistent with that of the Human Rights
differentiation based on reasonable and objective criteria does not amount
to prohibited discrimination within the meaning of article 26" [of the
ICCPR]. Broeks v. the
Netherlands, Commun. No. 172/1984, views adopted April 9, 1987, Report of
the Human Rights Committee 1987, UN Doc. A/42/40, Annex VIII.B, 139, para.
13. See, General Comment No. 18 (37) (non-discrimination),
Report of the Human Rights Committee 1990, UN Doc. No. A/45/40, vol. I, p.
Raquel Martín de Mejía v. Peru, Report No. 5/96, Case 10.970, Annual
Report of the IACHR 1995, OEA/Ser.L/V/II.91, doc. 7 rev., Feb. 28,
1996, at 157. The petition
alleged that on June 15, 1989, members of the Peruvian military came to the
home of Raquel Martín de Mejía and Fernando Mejía Egocheaga looking for
the latter, a lawyer and political activist, whom they took away with them.
One of those agents returned to the house minutes later, told Raquel
Martín de Mejía that she too was suspected of subversion, and raped her.
That same agent returned later returned and raped her again.
She filed a complaint concerning her husband's disappearance with the
authorities, but did not denounce the treatment to which she herself had
been subjected. Mr. Mejía's
body was discovered several days later bearing signs of torture and a
gunshot wound. Having received threats and fearing for her safety, she
eventually sought and received political asylum abroad.
Government authorities subsequently included her name in a list of
persons suspected of subversion, and filed criminal charges against her.
The claims concerning Fernando Mejía Egocheaga had been dealt with
by the Commission in a separate case, and so were not revisited.
See Report No. 83/90, Case 10.466, IACHR,
Annual Report of the IACHR 1990-91, OEA/Ser,L/V/II.79 rev. 1, doc.
12, 22 Feb. 1991, at 394.
Caso Loayza Tamayo, Sentencia de 17 de septiembre de 1997.
Id. para. 58.
See Report 38/96, Case 10.506, in Annual
Report of the IACHR 1996, supra, at 50.