As a Member State of the OAS and pursuant to the OAS Charter and the American Declaration, the United States has an obligation to ensure the human rights of every person under its jurisdiction22, irrespective of his/her nationality, migratory situation, or other social condition. This obligation extends to the rights to: personal liberty; due process and access to justice; the right to seek and receive asylum; humane treatment during detention; equality before the law; protection of family life and the family unit; the principle of non-refoulement and the right to be free from persecution or torture. The IACHR has held on numerous occasions that States have the right to establish their immigration policies, laws and practices, which may include provisions for the control of their borders and the requirements for entering and remaining in their territory, and the right to expel or deport foreign nationals.23 Nonetheless, all immigration policies, laws, and practices must be respectful of and guarantee the human rights of all persons, including migrants and other non-nationals and persons in an irregular migratory situation.24
The American Declaration is part of the human rights framework established by the OAS Member States, one that refers to the obligations and responsibilities of States and mandates them to refrain from supporting, tolerating or acquiescing in acts or omissions that contravene their human rights commitments. According to the well-established jurisprudence and practice of the IAHRS, the American Declaration is recognized as constituting a source of legal obligation for OAS Member States, including those States that are not parties to the American Convention on Human Rights.25 These obligations are considered to flow from the human rights obligations of Member States under the OAS Charter.26 Member States have agreed that the content of the general principles of the OAS Charter is contained in and defined by the American Declaration,27 as well as the customary legal status of the rights protected under many of the Declaration’s core provisions.28
As a source of legal obligation, States must implement the rights contained in the American Declaration in practice within their jurisdiction.29 The Commission has indicated that the obligation to respect and ensure human rights is specifically set forth in the provisions of the American Declaration, in light of the OAS Charter and the Statute of the IACHR.30 International instruments in general require State parties not only to respect the rights enumerated therein, but also to ensure that individuals within their jurisdictions are able to exercise those rights.
Consonant with this principle, the Commission has repeatedly interpreted the American Declaration as requiring States to adopt measures to give legal effect to the rights contained in the American Declaration.31 The Commission has not only required States to refrain from committing human rights violations contrary to the provisions of the American Declaration,32 but also to adopt affirmative measures to guarantee that the individuals subject to their jurisdiction can exercise and enjoy the rights contained in the American Declaration.33 The Commission has traditionally interpreted the scope of the obligations established under the American Declaration in the context of the international and inter-American human rights systems more broadly, in light of developments in the field of international human rights law since the instrument was first adopted, and with due regard to other rules of international law applicable to OAS Member States.34
As a principal organ of the OAS by virtue of the Charter and the terms of its Statute, OAS Member States, including the United States, must comply in good faith with the Inter-American Commission’s recommendations, in order for Article 106 of the OAS Charter to have an effet utile. Further, pursuant to general principles of treaty law, Member States are required to apply good faith in efforts to comply with the recommendations of supervisory bodies such as the Commission.
Principles of Equality and Non-discrimination
Article II of the American Declaration provides that, “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.”35 As stated at the outset of the present section, States have the right to establish immigration policies, laws and practices, which may include provisions for the control of their borders; the requirements for entering and remaining in their territory; and the right to expel or deport foreign nationals.36Treatment that is differential in nature may be justified in controlling the entry in and residence of non-citizens in their territory37; however, all such policies, laws, and practices must be respectful of and guarantee the human rights of all persons.38 Consistent with the principles underlying Article II of the Declaration, any distinctions in the policies, laws, and practices must be shown by the State to be objective, reasonable, and proportionate to the objective sought in the circumstances.
In this regard, the Commission has established that States must therefore remain vigilant in ensuring that their laws and policies are not developed or applied in a manner that encourages or results in discrimination; that their officials and agents conduct themselves fully in conformity with these rules and principles; and that policies and practices are prohibited upon a showing that they discriminate against a certain category of persons, even when lacking proof of discriminatory intent.39
