32 Part B – The Inter-American System for the Protection of Human Rights: Human Rights

Gudrun Gudmundsdottir

Learning outcomes

• This chapter deals with Inter-American judicial and administrative bodies for protection of human rights.
• By the end of the module, the students are expected to understand the objectives, jurisdictions and procedures of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
• Students are also introduced to important case law of the Inter-American Court of Human Rights and how it is different from that of the European Court of Human Rights.

Introduction:

Since its creation in 1959 by the Fifth Meeting of Consultation of Ministers of Foreign Affairs, the Inter-American Commission on Human Rights has evolved into a unique organ within the Inter-American system. The Protocol of Buenos Aires of 1967 amended the OAS Charter to transform the Commission into a formal organ of the OAS and prescribed that the Commission’s principal function should be ‘to promote the observance and protection of human rights’ (Articles 52 and 106 OAS Charter).

The Commission is characterised by a unique ‘dual role’, which reflects its origin as a Charter-based body and later transformation into a treaty body when the American Convention came into force. As an OAS Charter organ the Commission performs functions in relation to all member states of the OAS (Article 41 ACHR) and as a Convention organ its functions are applicable only to states parties to the American Convention on Human Rights (ACHR).

The Commission is composed of seven members ‘elected in a personal capacity’ (Article 36 ACHR) and meets for eight weeks a year (Article 15 Commission Regulations) in Washington D.C. It also carries out in loco visits.

The Commission’s function is to promote the observance and the defence of human rights. The Commission’s activities include the following:

• It receives, examines and investigates individual complaints or petitions which allege violations of the rights guaranteed under the American Declaration or the American Convention.
• It refers cases to the Inter-American Court of Human Rights under the American Convention and appears before the Court. Before the Court, the Commission, acting as guardian of the Convention and of the Inter-American system for the protection of human rights, presents its own case while the alleged victim has independent legal counsel presenting his/her case.
• It requests advisory opinions from the Court regarding questions of interpretation of the American Convention.
• It monitors the general human rights situation in the member states. It carries out on-site visits to observe the general human rights situation in a country or to investigate specific situations.
• It publishes special reports on the general human rights situation of member countries when it considers it appropriate.
• It undertakes research and publishes documents.

The supervisory procedures of the Commission are the following:

Individual petition procedure

Admissibility of communications

Article 44 of the American Convention on Human Rights establishes that the individual petition procedure is automatic for all states parties. (Article 20(b) of the Commission’s Statute provides the same with regard to the American Declaration on the Rights and Duties of Man for those OAS member states that have not ratified the ACHR). The petitions procedure is not limited to victims but is open to ‘any person or group of persons, or any non-governmental entity legally recognized in one or more member states of the Organization’. This is a major advantage given that the victims may not know or have access to the protection machinery. In practice, however, to ensure effective follow-up, there needs to be some link between the victim and the persons or organisation presenting the case.

Petitions may refer to a specific event, practice or even to widespread human rights abuses, encompassing numerous violations and victims. The petition must, however, refer to specific victims and provide a detailed description of the act or situation that gives rise to the complaint.

Like other international human rights bodies, the Commission and Court require that domestic remedies be exhausted in order for an individual petition to be admitted for consideration. Article 46(2) ACHR stipulates, however, that domestic remedies need not be exhausted where they are ineffective, when the victim has been denied access or prevented from exhausting them or there has been unwarranted delay in rendering a final judgement.

Although a petition must be filed within six months of the exhaustion of domestic remedies, an exception can be made where the state has interfered with the petitioner’s ability to file or where the complaint is lodged by a third party on the victim’s behalf. In these cases, the Commission may admit complaints filed a ‘reasonable’ time after exhaustion of domestic remedies.

Precautionary measures

Although the ACHR does not explicitly grant the Commission the faculty to request interim measures, the wide powers conferred upon it by Article 41 have been interpreted in its Rules of Procedure, which establish that ‘in serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, adopt precautionary measures to prevent irreparable harm to persons’ (Article 25(1)). Measures may be taken when three conditions are satisfied: the situation is urgent, the circumstances could lead to irreparable harm and the facts appear to be true.

The possibility of a rapid response is assured by the power granted to the Chairman of the Commission who may act when the Commission is not in session. The Commission may act ex officio or at the request of a petitioner. It should be noted that as with other cases presented to the Commission, the petitioner need not necessarily be the victim or his representative but can also be, for example, an NGO with knowledge of the case. This is especially important in refugee cases as many potential victims of refoulement may live in remote rural areas.

Unlike the judicially enforceable, Convention-based measures that may be exercised by the Court, the precautionary measures of the Commission are not binding but they do put the government in question ‘on notice’ and communicate the seriousness with which the Commission views the case.

When the state concerned is a party to the Convention, the Commission may also exercise the power bestowed on it by Article 63(2) which permits it to request that the Court adopt binding provisional measures in ‘cases of extreme gravity and urgency’.

Decision on the merits

Where a friendly settlement is not reached, Article 50 of the Convention establishes that the Commission is to draw up a report of its ‘conclusions’ and any ‘recommendations as it sees fit’. If, after three months, the matter has not been settled or referred to the Court by the Commission or the state concerned, Article 51 stipulates that the Commission must issue a second report stating its ‘opinion and conclusions’, making ‘pertinent recommendations’ where this is ‘appropriate’. In place of adopting and publishing a final report, the Commission may present a case to the Court.

On-site visits and country reports

In the face of gross, systematic violations of human rights carried out by undemocratic governments in the Americas during its formative years, the Commission developed the practice of doing factfinding through country visits and reporting on the human rights situation in selected OAS member states by means of country reports. This has proven to be one of the most effective mechanisms in the system. Country reports are often produced after a Commission in loco visit to the country or hearings on the situation in the state. The country reports are generally published separately from the Commission’s annual report but sometimes ‘mini-country reports’ are published in the annual report. Although the Convention does not specifically provide for the practice of country reports (Article 41 (c) merely refers to the preparation of those reports the Commission ‘considers advisable’), the Rules of Procedure do establish a legal basis for the practice and set out the procedural aspects for them, including the possibility for states to comment on draft reports.

The Commission carries out country visits and country reporting at its own discretion, generally when it believes violations to be widespread. The reports typically focus on the general human rights situation in a country but raise issues of specific concern.

The effectiveness of country visits is hard to measure as the impact appears to lie mainly in dissuading future violations. The visits also provide the Commission with information, and therefore credibility, for its country reports. Since country reports usually deal with large scale violations of human rights and are frequently cited by NGOs as authoritative descriptions of the human rights situation in a given country, governments may find them particularly embarrassing.

Since 2000, the Commission has issued special thematic reports on a number of topics, including the rights of indigenous peoples, terrorism, status of human rights defenders, access to justice for women victims of violence in the Americas and demobilisation in Colombia. In addition, the Commission has published the reports of its special rapporteurs and units: the Special Rapporteur for Freedom of Expression, the Special Rapporteur for the Rights of Women, the Special Rapporteur for Migrant Workers and Their Families, the Special Rapporteur on Human Rights Defenders, the Special Rapporteur on the Rights of Afro-Descendants and against Racial Discrimination, the Special Rapporteur on the Rights of the Child, the Special Rapporteur on LGBT Persons, the Special Rapporteur on the Rights of Persons Deprived of Liberty and the Unit on Economic, Social and Cultural Rights.

The Annual Report

The Annual Report of the Commission includes a broad range of information, inter alia, information on individual cases, on-site visits, requests for precautionary measures and ‘mini-country reports’ as well reporting on the activities of the rapporteurships.

INTER-AMERICAN COURT OF HUMAN RIGHTS

The Court came into being in 1979 following the entry into force of the American Convention. The Court is the supreme judicial organ established by the American Convention and exercises both contentious and advisory jurisdiction. The Court is composed of seven judges elected for a term of six years who may be re-elected once. The Court is a part-time body, with its seat in San José, Costa Rica.

Advisory jurisdiction

The Court’s advisory jurisdiction is unique in several ways. In addition to the Inter-American Commission and other authorised bodies of the OAS, all OAS member states have the right to request advisory opinions regardless of whether they are parties to the American Convention or whether they have recognised the Court’s jurisdiction over contentious matters. Furthermore, OAS member states may consult the Court regarding the interpretation not only of the Convention, but also of any other treaty pertaining to the protection of human rights in the Americas. They may also consult the Court on the compatibility of their domestic laws, bills and proposed legislative amendments with the ACHR or any other treaty concerning human rights (Article 64 ACHR).

Contentious jurisdiction

The Court was establised in 1979, but the first decision on merits was not until 1988 in a case against Honduras, which originated in a petition received by the Commission on 7 October 1981. States parties do not accept the contentious jurisdiction of the Court merely by becoming parties to the Convention. The acceptance of its jurisdiction is optional and requires a separate declaration or special agreement. A declaration of acceptance of the Court’s jurisdiction may be made at the time of ratification or adherence to the Convention or at any subsequent time (Article 62(1) ACHR). Declarations may be unconditional, recognising the Court’s jurisdiction as binding ipso facto, without requiring special agreement. States can also accept the Court’s jurisdiction on the condition of reciprocity (inter-state cases), for a specified period or for specific cases. In addition, all states parties to the Convention may at any time, on an ad hoc basis, permit the Court by special agreement to adjudicate a specific dispute relating to the application of the Convention (Article 62(3) ACHR).

The jurisdiction of the Court comprises all cases concerning the interpretation and application of the provisions of the Convention that are submitted to it provided the parties to the dispute have accepted its jurisdiction.

Only states parties to the Convention and the Commission have the right to submit a case to the Court (Article 61(1) ACHR). Individuals cannot bring a case directly to the Court; they have to file a complaint with the Commission; the Court can only deal with individual complaints when they have been considered and referred to it by the Commission. States parties can bring cases directly to the Court. It should be noted also that, unlike the European Convention, the American Convention does not require that those filing complaints with the Commission be the victims of the alleged violations themselves; any ‘person or group of persons, or any non-governmental entity legally recognised in one or more member states’ may lodge petitions with the Commission.

The proceedings before the Court in contentious cases terminate with a judgement, which is final and not subject to appeal. The Court may be requested to interpret the meaning or scope of any judgement at the request of any party to the case (Article 67 ACHR and Article 46 Rules of Procedure).

While the decisions of the Court are only binding on the parties to the case, the Court’s interpretation of the rights contained in the Convention are authoritative and have a greater practical significance than their formal status would suggest.

If the Court finds that there has been a violation of the Convention, it shall rule that the injured party be ensured the enjoyment of the right or freedom that was violated and, if appropriate, rule that the consequences of the measures or situation that constitute the violation be remedied and award compensation. The Court has a distinctive reparations scheme that is not limited to monetary compensation but has also included ordering the state to locate mortal remains of a victim, to publish the court’s judgement in a national newspaper and acknowledge wrong-doing as well as to adopt national legislation that incorporates international human rights norms into the state’s legal system.

When reparations are awarded, the Court has generally reserved for itself the faculty of supervising compliance with the judgement (see, e.g., Aloeboetoe v. Suriname and Maqueda v. Argentina).

States parties to the Convention undertake to comply with the Court’s judgement in any case to which they are parties. The part of the judgement that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgements against the state (Article 68 ACHR).

The Court reformed its rules of procedure significantly in 2009, inter alia, including provisions establishing the Court’s practice of holding hearings away from its seat and the recording of audio of the hearings and the deliberations. The appointments of the deputy state agent or agents were regulated and clarified as well as the procedure of provisional measures, replacement of witnesses and designation of expert witnesses. The Court extended deadlines for submitting briefs and set deadlines for the submissions of the amici curiae. In order to improve the way the Court receives and processes evidence, the declarations of the alleged victims are no longer qualified as testimonial declarations and, therefore, are no longer needed to be given under oath. In this sense, the declarations of the alleged victims shall be assessed, within the context of the case, taking into account the special characteristics of such statements. In order to clarify its case-law, the Court deemed it fit to omit any reference to the next-of-kin of the alleged victims, as according to its legal opinion they shall, under certain circumstances, be considered as alleged victims and may be beneficiaries of the reparations as long as they have been identified as such in the Commission’s application. In this way, said next-of-kin shall be considered alleged victims and all provisions referring to victims shall be applicable. Finally, the Court established its practice of holding private hearings on the procedure to monitor compliance with its judgments and the possibility of commissioning the Secretariat to carry out the preliminary proceedings for taking evidence in those cases where it is impossible for the Court to proceed.

The case-law of the Inter-American Court of Human Rights compared to that of the European Court of Human Rights

The case-law of the Inter-American Court of Human Rights is not as extensive as that of the European Court of Human Rights and although the American Convention contains all of the traditional civil and political rights, the case-law in contentious cases has dwelt primarily upon a few of the most basic rights. These include the right to life (Article 4); the right to personal liberty (Article 7); the right to humane treatment (Article 5); the right to a fair trial (Article 8); the right to judicial protection (Article 25); and the right to equal protection before the law (Article 24).

Although cases regarding these rights still find their way onto the Court’s docket, the Court has slowly been widening its scope to deal with a broader range of issues, including the wrongful dismissal of judges and civil servants, film censorship, the withdrawal of citizenship and removal from positions of authority of government critics and the land rights of indigenous peoples. In addition, the Inter-American Commission invoked Article 26 of the American Convention before the Court, and the Court addressed the problem by implicitly admitting jurisdiction to apply Article 26 in its contentious cases (see Torres Benvenuto et al. (Five Pensioners case) v. Peru ).

The reasons for the limited case-law of the Inter-American system are manifold. One is that the Inter-American Court is a young institution, meeting for the first time in 1979. The first cases in which the Court decided that a state party had violated the Convention were in 1988 in the so-called Honduran Disappearance Cases (Velásquez Rodríguez v. Honduras and Godínez Cruz v. Honduras).

The European Court began its work twenty years earlier. Secondly, for various reasons relatively few contentious cases have been submitted to the Court. In the early years of the Court, only a few states had made optional declarations accepting its contentious jurisdiction. Furthermore, individuals do not have the right to submit an application directly to the Court (jus standi); they do, however, have standing before the Court since 2001 in the reparations phase and since 2004 at every stage of the proceedings. States are generally reluctant to present cases to the Court, but may elect to submit cases to the Commission (see, e.g., Nicaragua v. Costa Rica (declared inadmissible)).

In the end, what is most determinative of the volume of the Court’s work is the extent to which the Inter-American Commission is prepared to submit cases. Under the latest amendments to the Rules of Procedure of the Commission, when the state has not complied with its recommendations within a given period, the Commission is required to submit the case to the Court, unless a qualified majority decides not to do so. Previously, the Commission had the discretion whether or not to submit a case, even in cases of non-compliance, and could submit a case only by a decision of a qualified majority.

Under the new system, it is more likely that cases will be submitted to the Court. Although most of the cases which the Inter-American organs of human rights have dealt with have involved gross violations of human rights, the political reality of the continent has changed from what it was at the system’s inception, and the jurisprudence is evolving to include other issues. One example is the case of Atala Riffo and Daughters v. Chile where the Court reviewed a Chilean court ruling that in 2005 awarded child custody to a father because of the mother’s sexual orientation. In 2012, the Court ruled in favour of the mother in its first case concerning LGBT rights. The Court also determined sexual orientation to be a suspect classification.

In relation to the above, it should be noted that while the case-law of the Inter-American Court is relatively limited in terms of the number of judgements and scope, the Court has nonetheless contributed significantly to the progress of international human rights with cases such as its landmark decision in Velásquez Rodriguez v. Honduras.

Conclusion

The Inter-American Court of Human Rights established in 1959 by the Fifth Meeting of Consultation of Ministers of Foreign Affairs is charged to promote the observance and the defence of human rights. Its various functions include receiving, examining and investigating individual complaints or petitions alleging violations of the rights guaranteed under the American Declaration or the American Convention and referring cases to the Inter-American Court of Human Rights and appearing before the Court, apart from other advisory, research and supervisory functions.

The Inter-American Court of Human Rights came into being in 1979 following the entry into force of the American Convention. The Court is the supreme judicial organ established by the American Convention and exercises both contentious and advisory jurisdiction. The Court is a part-time body, with its seat in San José, Costa Rica. All OAS member states have the right to request advisory opinions regardless of whether they are parties to the American Convention or whether they have recognised the Court’s jurisdiction over contentious matters. The contentious jurisdiction of the Court comprises all cases concerning the interpretation and application of the provisions of the Convention that are submitted to it provided the parties to the dispute have accepted its jurisdiction.

The last part of the module compares the case law of the Court with that of the European Court of Human Rights. The case-law of the Inter-American Court of Human Rights is not as extensive as that of the European Court of Human Rights and although the American Convention contains all of the traditional civil and political rights, the case-law in contentious cases has dwelt primarily upon a few of the most basic rights. Under the latest amendments to the Rules of Procedure of the Commission, when the state has not complied with its recommendations within a given period, the Commission is required to submit the case to the Court. In spite of limited jurisdiction, the Court contributed significantly to the progress of international human rights with landmark decisions such as in Velásquez Rodriguez v. Honduras.

Reference

1. Violence and Human Rights Violations Against Persons on the Basis of their real or perceived Sexual Orientation and Gender Identity. Available at http://www.acdhrs.org/tag/sexual-orientation/
2. The Arctic Athabaskan Petition: Where Accelerated Arctic Warming Meets Human Rights Veronica De La Rosa Jaimes. Available at http://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1459&context=cwilj
3. Advocacy before the Inter-American System, A Manual for Attorneys and Advocates. Available at http://ijrcenter.org/wp-content/uploads/2014/03/Manual-Advocacy-before-the-Inter-American-System-2014.pdf
4. The Practice and Procedure of the Inter-American Court of Human Rights, Jo M. Pasqualucci. Available at https://www.cambridge.org/core/books/practice-and-procedure-of-the-interamerican-court-of-human-rights/69395CCC496FB44D3D84DB1088416DAB