The Implementation of Inter-American Norms on Freedom of Religion in the National Legislation of OAS Member States

INTRODUCTION On November 22, 1969, members of the Organization of American States ("OAS") met in San Jose, Costa Rica, to adopt the American Convention on Human Rights ("Convention").1 After its eleventh ratification, deposited by Grenada on July 18, 1978, the treaty went into force.2 Through this Pact of San Jose, the OAS established two organs "to supervise the implementation and enforcement of the rights contained therein."3 These organs, namely, the Inter-American Commission on Human Rights ("Commission") and the Inter- American Court of Human Rights ("Court"), have protected the right to exercise religious freedom in the American hemisphere by vigorously promoting the defense of all human rights. While the Commission existed prior to adoption of the Convention, the Convention redefined its functions4 and created the InterAmerican Court of Human Rights.5 It also outlined specific human rights and norms, including rights to religious freedom.6 On various occasions, the Court and die Commission have intervened to revise domestic legislation of OAS member states to guarantee religious freedom. These interventions are particularly significant because of the relationship between Inter-American regional norms and the internal legal ordinances of states parties to the Convention. Article 2 of the Convention obligates the states parties to ensure the rights and freedoms guaranteed therein,7 and therefore the regional norms espoused by the Convention prevail over conflicting national laws.8 Practical examples of both the regional organs protecting human rights and the pronouncements of the General Assembly of the OAS corroborate the efficacy of the system in protecting religious freedom for each individual. In this Article, I discuss die legal instruments enacted to expand and enforce human rights among the member states of the OAS. I also summarize examples of specific cases brought before die Commission and the Inter-American Court of Human Rights. While both organs are valuable institutions for the development of human rights law in the Inter-American system, they cannot replace protection of religious freedom at the national level. The InterAmerican system's organs of human rights protection serve the important purpose of voicing regional condemnation of human rights violations and of enforcing the commitment of each state to protect its citizens' rights and freedoms. In Part II, I oudine the method used by the Commission and the Court to effectuate die rights protected by the instruments of human rights protection in the Inter-American system. In Part III, I discuss cases that have come before the Commission and die Court dealing specifically with the protection of religious freedom. II. THE INTER- AMERICAN COMMISSION AND INTER- AMERICAN COURT OF HUMAN RIGHTS: IMPLEMENTATION OF THE AMERICAN CONVENTION ON HUMAN RIGHTS A. States' Duties to Guarantee Rights In the first article of the American Convention on Human Rights, the states parties to the Convention agree to undertake to respect, guarantee, and permit the exercise of the rights and freedoms recognized in the Convention.9 Among the rights specified in the Convention is the right of each individual person10 who is subject to the jurisdiction of a member state to exercise his rights and freedoms without any discrimination of a religious nature.11 Thus, the Convention incorporates into its first article the principle of nondiscrimination. According to the norms of Article 2 of the Convention, states parties have the duty to guarantee the right to exercise freedoms protected by the Convention.12 To accomplish this, they must, in accordance with their own constitutional processes, adopt legislative or other measures necessary to implement these rights and freedoms.13 While such measures are to be adopted in accordance with the respective constitutional norms of the member state, the obligation to comply with the terms of the Convention are unqualified. …