Beruflich Dokumente
Kultur Dokumente
3. This first section describes briefly the historical background behind the InterAmerican System for Human Rights and presents an overview of the interAmerican institutions, the inter-American human rights instruments and the interAmerican human rights mechanisms.
1.1. BACKGROUND
4. The OAS4, as a regional organization, aims inter alia at strengthening the peace
and security of the continent and ensuring the pacific settlement of disputes that
may arise among member States 5. Its charter, known as the Bogot Charter, was
drafted during the ninth Inter-American Conference6, which took place in Bogot
from March 30th to May 2nd 1948.7 All the thirty five American states have ratified
it and are therefore members of the organization 8. The Charter does not contain
many references to human rights. The most important human rights related
provisions are Article 3(l), which states that American states proclaim the
fundamental rights of the individual without distinction as to race, nationality,
creed, or sex and Article 17, which calls the states to respect the rights of the
individual and the principles of universal morality while developing its cultural,
political and economic life freely and naturally. The fundamental rights referred
to by the Charter are not defined. However, during the Conference of Bogot, the
American States adopted the American Declaration on the Rights and Duties of
Man 9, the first stone of the inter-American human rights edifice, proclaiming a rich
and substantial human rights catalogue (see infra).
5. The development of the inter-American system for the protection of human
rights took a significant turn in 1959, with the creation of the Inter-American
Commission on Human Rights10. Concerned by the massive human rights abuses
perpetrated during the Trujillo regime in Dominican Republic, as well as during
Fidel Castros rise to power in Cuba, and inspired by the emerging European and
global human rights systems, the OASs governments called for the adoption of an
American Convention and for the institutionalization of human rights bodies11.
on the initiative of the states concerned or by reference from the Security Council. 4. This Article in
no way impairs the application of Articles 34 and 35.
6
First International Conference of the American States (Washington 1889); Second ICAS (Mexico,
1901-1902) ; Third ICAS (Rio de Janeiro, 1906) ; Forth ICAS (Buenos Aires, 1910) ; Fifth ICAS
(Santiago, 1923) ; Sixth ICAS (La Havana, 1928) ; Seventh ICAS (Montevideo, 1933) ; Eighth ICAS
(Lima, 1938) ; Ninth ICAS (Bogot, 1948).
7
Since it entered into force in 1951, the Bogot Charter has been amended four times. These
amendments aimed at strengthening the structure of the Organization and the principles of collective
security, regional solidarity, non-intervention, as well as the democratic and human rights principles
asserted in the Declaration. See Th. BUERGENTHAL & R. NORRIS, supra note 3, 37-44.
8
The OAS original Member States (1948) are as follows: Argentina, Bolivia, Brazil, Chili, Colombia,
Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico,
Nicaragua, Panama, Paraguay, Peru, the United States, Uruguay, Venezuela. The States that joined
later are: Barbados, Trinidad and Tobago (1967); Jamaica (1969); Grenada (1975); Surinam (1977);
Dominica, St. Lucia (1979); Antigua and Barbuda, St. Vincent and Grenadines (1981); Bahamas
(1982); St. Kitts and Nevis (1984); Canada (1990); Belize, Guyana (1991). Cuba, one of the founding
members, was suspended in 1962.
9
The States also adopted the Inter-American Charter of Social Guarantees that underlined the key
role of work in society and proclaimed the minimal rights to which the workers of the Continent are
entitled. This Charter, however, never entered into force. See on the social, economic and social
rights in the inter-American system of human rights: M. C RAVEN, The Protection of Economic, Social
and Cultural Rights under the inter-American System of Human Rights, in The Inter-American
System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 289.
10
Ch. CERNA, The Inter-American Commission on Human Rights: Its Organization and Examination
of Petitions and Communications, in The Inter-American System of Human Rights (D. Harris & S.
Livingstone eds.) supra note 3, 65-114.
11
The Fifth Meeting of Consultation of Ministers of Foreign Affairs took place in Santiago de Chile
from August 12th to 18th 1959. It concluded that considering the progress that had been made
regarding human rights since the adoption of the American Declaration, and in view of the
mechanisms of protection that were being implemented by the United Nations and the Council of
Europe, it was appropriate to envisage the adoption of an American convention on human rights
backed by monitoring institutions. The Inter-American Council of Jurists was entrusted with the
mission of preparing a draft Convention on human rights and a draft convention or draft conventions
creation of the Court in 1979 explain the two overlapping inter-American systems:
the first one is based on the Declaration and the operation of the Commission; the
second one is based on the Convention and on the operation of the Commission, as
a quasi-judicial body, and of the Court, autonomous judicial body19.
1.2. THE INTER-AMERICAN HUMAN RIGHTS INSTITUTIONS: A COMMISSION
AND A COURT
7. In the current configuration of the Inter-American System of Human Rights the
two main human rights organs20 are the Inter-American Commission and the InterAmerican Court.
1.2.1.
complaints concerning such states as Argentina, Chile, El Salvador, Guatemala, Uruguay and
Paraguay, among which none was eager to ratify the Convention. T. FARER, The Rise of the InterAmerican Human Rights Regime: No Longer a Unicorn, Not Yet an Ox, in The Inter-American
System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 40-41.
19
Indeed, when the Convention was drafted, the following question arose: was it more appropriate to
limit the jurisdiction of the Commission to the one ascribed by the Convention or to maintain its
existing jurisdiction and expand it accordingly? Formally, it would have been more efficient to
choose the first solution. But politically, as former President of the Inter-American Commission on
Human Rights (1976-1983) Tom Farer explains, it would have been problematic as States could
merely abstain from ratifying the Convention to escape any sort of supervision regarding compliance
with human rights obligations on their territory. T. FARER, The Rise of the Inter-American Human
Rights Regime: No Longer a Unicorn, Not Yet an Ox, in The Inter-American System of Human
Rights (D. Harris and S. Livingstone eds.) supra note 3, 39-42.
20
See also : V. GOMEZ, The Interaction between the Political Actors of the OAS, the Commission and
the Court, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra
note 3, 173.
21
On the Inter-American Commission of Human Rights, see: See Ch. CERNA, The Inter-American
Commission on Human Rights: its Organization and Examination of Petitions and Communications,
in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 65;
B. SANTOSCOY, La Commission interamricaine des droits de lhomme et le dveloppement de sa
comptence par le systme des ptitions individuelles (P.U.F. 1995); C. GROSSMAN, Proposals to
Strengthen the Inter-American System of Protection of Human Rights, 32 Ger. Y.B. Int'l L. 264
(1989) ; COMISIN INTERAMERICANA DE DERECHOS HUMANOS, Diez Aos de Actividades--1971-1981
(1982); A.A. CANADO TRINDADE, The Evolution of the OAS System of Human Rights Protection:
An Appraisal, 25 Ger. Y.B. Int'l L. 498 (1982); A.P. SCHREIBER, The Inter-American Commission on
Human Rights (A.W. Sitjthoff & Leyden eds., 1970); K. VASAK, La Commission interamricaine des
droits de lhomme (L.G.D.J. 1968).
22
See Articles 34-38 of the American Convention and Articles 2-15 of the Commissions Statute.
members of the OAS. In addition regarding those states that are not party to the
American Convention, the Commission has the power, after the exhaustion of
domestic remedies, to examine communications and any other available
information deemed pertinent to address the government concerned and to make
recommendations when appropriate. The states that have not ratified the
Convention will respond before the Commission for the alleged violation of the
rights set forth in the American Declaration. Article 1 of its Statute specifically
provides that for the states not party to the Convention, human rights must be
understood as the rights set forth in the American Declaration of the Rights and
Duties of Man 28. The Commission was officially endowed with the competence to
receive complaints from individuals during the Second Special Inter-American
Conference, held in Rio de Janeiro in 1965 with the adoption of the XXII
Resolution amending the Statute of the Commission29. However, Article 20 of its
new Statute did not give a general jurisdiction to hear individual petitions, but
rather required that the Commission limit its attention to a certain set of rights in
the Declaration 30. The Commission initially adopted a restrictive interpretation of
this provision, considering the text of Article 20.a to be an exhaustive list of rights.
On the basis of this interpretation, the Commission was only competent to consider
individual petitions alleging violations of the rights enumerated in the
aforementioned article. Only at a later point did the Commission change its
orientation, considering the list of rights to be illustrative but not exhaustive.
Currently, individual petitions before the Commission may allege a violation of
any of the rights set forth in the American Declaration. The procedure of
adjudication for these petitions is similar to the one applicable under the
Convention system (infra).
11. As a Convention organ, the Commission may adjudicate denunciations or
complaints regarding states party to the Convention lodged by individuals: any
person or group of persons, or any non governmental entity legally recognized in
one or more member states of the OAS31. It may also adjudicate communications in
which a State Party alleges that another State Party 32 has committed a violation of a
human right set forth in this Convention 33. The Commission automatically has
Article 1 of the Commissions statute reads as follow: 1) The Inter-American Commission on
Human Rights is an organ of the Organization of the American States, created to promote the
observance and defense of human rights and to serve as consultative organ of the Organization in this
matter. 2) For the purposes of the present Statute, human rights are understood to be: a) The rights set
forth in the American Convention on Human Rights, in relation to the States Parties thereto; b) The
rights set forth in the American Declaration of the Rights and Duties of Man, in relation to the other
member states.
29
See Resolution XXII of the Second Special Inter-American Conference, Final Act, OAS/Ser.C/I.13,
1965, 32-34.
30
Article 20.a of the inter-American Commissions Statute requires that the Commission pay
particular attention to the observance of the human rights referred to in Articles I, II, III, IV, XVIII,
XXV, and XXVI of the American Declaration of the Rights and Duties of Man. It refers to the right
to life, liberty and personal security, right to equality before the law, right to religious freedom and
worship, right to freedom of investigation, opinion, expression and dissemination, right to a fair trial,
right of protection from arbitrary arrest, right to due process of law.
31
Article 44 of the American Convention.
32
Article 63(2) of the Convention; Article 19.c of the Commissions Statute; Article 74 of the
Commissions Rules of Procedure.
33
Article 45 of the American Convention.
28
12. The Inter-American Court of Human Rights is the autonomous judicial organ
of the Convention system competent to apply and to interpret the American
Convention of Human Rights35. The Inter-American Court of Human Rights was
created by the American Convention and became operative in 1979, when the
General Assembly of the OAS elected its first judges36.
13. The Court sits in San Jos, Costa Rica37. It is composed of seven judges who
must be nationals of a OAS state, and who are elected in an individual capacity
from among jurists of the highest moral authority and of recognized competence in
the field of human rights, who possess the qualifications required for the exercise
of the highest judicial functions under the law of the State of which they are
nationals or of the State that proposes them as candidates38. The Courts judges
Inter-state communications are regulated by articles 46 through 50 of the American Convention on
Human Rights. Article 45(1) of the American Convention on Human Rights: Any State Party may,
when it deposits its instrument of ratification of or adherence to this Convention, or at any later time,
declare that it recognizes the competence of the Commission to receive and examine communications
in which a State Party alleges that another State Party has committed a violation of a human right set
forth in this Convention. Article 45.2 of the American Convention on Human Rights:
Communications presented by virtue of this article may be admitted and examined only if they are
presented by a State Party that has made a declaration recognizing the aforementioned competence of
the Commission. The Commission shall not admit any communication against a State Party that has
not made such a declaration. This procedure has been used only once in 2006 when Nicaragua
presented an inter-state communication against Costa Rica.
35
Article 1 of the Courts Statute.
36
On the Inter-American Court of Human Rights, see: L. HENNEBEL, La Convention amricaine des
droits de lhomme: mcanismes de protection et tendue des droits et liberts, (Bruylant 2007); J. M.
PASQUALUCCI The Practice and Procedure of the Inter-American Court of Human Rights, Cambridge,
(Cambridge University Press 2003); H. TIGROUDJA & K. PANOUSSIS, La Cour interamricaine des
droits de lhomme: Analyse de la jurisprudence consultative et contentieuse (Bruylant 2003); A.A.
CANADO T RINDADE, The Operation of the Inter-American Court of Human Rights, in The InterAmerican System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 133; S.
DAVIDSON, The Inter-American Court of Human Rights (Darmouth 1992); A.A. CANADO TRINDADE,
Formacin, Consolidacin y Perfeccionamiento del Sistema Interamericano de Proteccin de los
Derechos Humanos, in XVII Curso de Derecho Internacional Organizado por el Comit Jurdico
Interamericano (1990), (1991); Ch. CERNA, The Structure and Functioning of the Inter-American
Court of Human Rights (1979-1992), Brit. Y.B. Intl L. 135 (1992).
37
Article 3.1 of the Courts Statute.
38
Article 52(1) of the American Convention and Article 4.1 of the Courts Statute. The procedure of
election has been criticized, as it often is the result of diplomatic negotiations between states rather
than a strict selection among experts on human rights issues. See on this point: J.M. PASQUALUCCI,
supra note 36, 348-49; Th. BUERGENTHAL & D. CASSEL, The Future of the Inter-American Human
Rights System, in El Futuro del Sistema Interamericano de los Derechos Humanos, 539, 544-5 (J.
Mendez & F. Cox eds. Inter-American Institute for Human Rights 1998); D. CASSEL, Somozas
34
have a six-year mandate that can be renewed only once39. The position of judge at
the Court is not a full-time position. The judges meet three or four times per year
during its sessions. A permanent professional staff reputed to be insufficient
assists the judges with their work.
14. The Court performs two main types of functions. First, the Court has
jurisdiction to adjudicate cases, referred by the Commission or by another state
party, alleging that a state party, which has accepted the contentious jurisdiction of
the Court, has breached the Convention. To date, twenty-one of the twenty-four
states parties have accepted the contentious jurisdiction of the Court 40: Argentina,
Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic,
Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama,
Paraguay, Peru, Suriname, Uruguay, and Venezuela41. As 2007, the Court has
judged ninety-five cases brought by individuals. Its contentious jurisdiction load
has increased since 2004: the Court judged fifty-five cases between 1987 and 2003
and forty between 2004 and 200742 (infra). Second, the Court has jurisdiction to
issue advisory opinions43. The scope of the Courts advisory jurisdiction, as
provided by the Convention and interpreted by the Court, is quite extensive.
According to Article 64(1) of the Convention, any member state of the OAS, or
any OAS organ including the Commission, within its spheres of competence44, may
consult the Court regarding the interpretation of the Convention or of other treaties
related to human rights in the American states. The Court interpreted broadly the
notion other treaties and asserts its competence to interpret any provision
dealing with the protection of human rights set forth in any international treaty
applicable in the American States, regardless of whether it be bilateral or
multilateral, whatever be the principal purpose of such a treaty, and whether or not
Revenge: A New Judge for the Inter-American Court, 13 Human Rights Law Journal, 137, 139
(1992).
39
Articles 53-54 of the American Convention and Article 5.1 of the Courts Statute.
40
A.A. CANADO TRINDADE, Current State and Perspectives of the Inter-American System of Human
Rights Protection at the Dawn of the New Century, supra note 3, at footnote No 40. See Canado
Trindades comment on modes of acceptance of the Courts jurisdiction: Among these modes of
acceptance of the Court's jurisdiction, set forth in Article 62(2) of the Convention, it is rather
surprising to find the condition of reciprocity, which, in practical terms, could only be resorted to in
inter-State cases (never brought before the Court until the present time), but not in cases referred to it
by the Commission. Moreover, considerations of reciprocity have proven utterly inadequate in the
present domain of protection, where they have been gradually overcome by the notion of collective
guarantee and considerations of common or general public interest or ordre public. On the erosion
of reciprocity and the prominence of considerations of ordre public in the domain of the international
protection of human rights, see A.A. CANADO TRINDADE, A Proteoo Internacional dos Direitos
Humanos Fundamentos Jurdicos e Instrumentos Bsicos 10 (Saraiva ed., 1991).
41
Trinidad and Tobago has denounced the American Convention. See infra note 69.
42
2007 annual report, Inter. Am. Ct. HR, at 61.
43
See J. PASQUALUCCI, Advisory Practice of the Inter-American Court of Human Rights :
Contributing to the Evolution of International Human Rights Law, 38 Stan. J. IntL. 241 (2002) ; Th.
BUERGENTHAL, The Advisory Practice of the Inter-American Human Rights Court, 79 Am. J. Intl L.
1, 25 (1985).
44
Advisory Opinion OC-2/82, The Effect of Reservations on the Entry Into Force of the American
Convention on Human Rights (Arts. 74 and 75), Inter-Am. Ct. H.R. (ser. A) No 2, 14 (1982) (the
OAS organs must demonstrate a legitimate institutional interest in the subject matter of the
request), 16 (the Commission enjoys, as a practical matter, an absolute right to request advisory
opinions).
non-Member States of the inter-American system are or have the right to become
parties thereto45. The Court has rendered advisory opinions related, for instance,
to the 1948 American Declaration and to the 1963 Vienna Convention on Consular
Relations46. Moreover, according to Article 64(2), any member of the OAS may
request the Court to provide opinions regarding the compatibility of any of its
domestic laws with the Convention or with other treaties related to human rights in
the American states. The Court may issue an advisory opinion concerning the
compatibility of laws already in force or proposed laws with the Convention or
with other treaties47. By their very nature advisory opinions are not legally
binding48. However, they have an authoritative interpretative effect49. The Court, as
the autonomous judicial institution in charge of the application of the American
Convention, has the authority to interpret the Convention and other treaties in the
OAS. In other words, the advisory opinion is not per se binding and the failure of a
state to comply with an opinion is not a breach of the Convention, but the
interpretations pronounced by the Court cannot be ignored by the states50. Since
1979, the Court has rendered 19 advisory opinions: 12 concerning the
interpretation of the Convention; 4 dealing with the interpretation of other
treaties; and 3 on the compatibility between domestic laws and international
human rights law; 6 of the 19 advisorys requests were lodged by the Commission
and 13 by state members51. The Court has interpreted its advisory jurisdiction
extensively, showing through the exercise of this power its intention to be a true
regional court and not simply the judicial monitoring organ of the American
Convention. The advisory procedure is quite open and all the OAS states as well as
other actors acting as amici curiae have the opportunity to express their opinions.
After the formal filing and notification of the request for advisory opinion, and at
the end of the written procedure, the Court may organize hearings, which has been
a systematic practice up to this point. The fact that all the OAS states and not
Advisory opinion OC-1/82, Other Treaties Subject to the Advisory Jurisdiction of the Court (art.
64 American Convention on Human Rights), Inter-Am. Ct. H.R., (Ser. A) No 1, first point of the
opinion (1982).
46
Advisory opinion OC-10/1989, 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, Inter-Am.
Ct. H.R. (ser. A) No 10 (1989); Advisory Opinion OC-16/99, The Right to Information on Consular
Assistance in the Framework of the Guarantees of the Due Process of Law, Inter-Am. Ct. H.R. (ser.
A) (1999). See: A.A. CANADO TRINDADE, The Humanization of Consular Law: The Impact of
Advisory Opinion n. 16 (1999) of the Inter-American of Human Rights on International Case-Law
and Practice, 4 Chinese Journal of International Law (2007) 1.
47
Advisory opinion OC-4/1984, Proposed Amendments of the Naturalization Provisions of the
Constitution of Costa Rica, Inter-Am. Ct. H.R., (ser. A) No 4 (1984).
48
Advisory opinion OC-3/83, Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American
Convention on Human Rights), Inter-Am. Ct. H.R., (ser. A) No 3 (1983).
49
Th. BUERGENTHAL ET AL., supra note 3, at 271.
50
In particular, because Article 2 requires state parties to ensure that their domestic laws are
compatible with the Convention, when the Court states in an advisory opinion requested by a state
party that a law is incompatible with it, the state is duly informed that it is in violation of the
Convention. The effect of the Convention as regards states non-party to the Convention is more
difficult to assess since they are not bound by the Convention. Moreover, the effect of the advisory
opinions interpreting other treaties such as the International Covenant of Civil and Political Rights on
the American states parties to these treaties raises the problem of a possible conflict of jurisdiction
between the Court and the organ of supervision of the other treaties.
51
2007 Annual Report, Inter-Am. Ct. H.R., at 77.
45
10
exclusively the states parties to the Convention may request opinions is a way to
leave the Courts door open for the states non-parties.
1.3. THE INTER-AMERICAN HUMAN RIGHTS INSTRUMENTS: A DECLARATION
AND A CONVENTION
15. The OAS has elaborated a normative framework that is based on the
Declaration, the Convention, and instruments aiming at the protection of human
rights in general and the protection of specific rights or particular categories of
persons.
1.3.1.
16. The American Declaration of the Rights and Duties of Man pre-dates by some
months the Universal Declaration of Human Rights adopted in 1948. The Ninth
International Conference of American States proclaimed it on May 2, 1948. The
Declaration regards rights as attributes of human personality and provides that
the fulfillment of duty by each individual is a prerequisite to the rights of all52. It
consists of a Preamble and 38 articles. The text is divided into two chapters: the
first focuses on rights, while the second focuses on duties. The Declaration
recognizes a vast array of civil, political, social, economic and cultural rights and
aims at the protection of all human beings at all time. The rationale of the
Declaration is expressed in its preamble, which states that The American peoples
have acknowledged the dignity of the individual, and their national constitutions
recognize that juridical and political institutions, which regulate life in human
society, have as their principal aim the protection of the essential rights of man and
the creation of circumstances that will permit him to achieve spiritual and material
progress and attain happiness; The American States have on repeated occasions
recognized that the essential rights of man are not derived from the fact that he is a
national of a certain state, but are based upon attributes of his human personality;
The international protection of the rights of man should be the principal guide of an
evolving American law; The affirmation of essential human rights by the American
States together with the guarantees given by the internal regimes of the states
establish the initial system of protection considered by the American States as
being suited to the present social and juridical conditions, not without a recognition
on their part that they should increasingly strengthen that system in the
international field as conditions become more favorable. The rights proclaimed by
the Declaration include: the right to life, liberty and personal security; the
prohibition of arbitrary arrest; the right to due process of law; the right to equality
before law; the right to religious freedom and worship; the freedoms of opinion,
expression, assembly and association; the right to protection of honor, personal
reputation and family life; the protection of the family; the protection of mothers
and children; the right to residence and movement; the right to privacy; the right to
health; the right to property; the right to education; the right to benefits of culture;
See generally A.A. CANADO TRINDADE , El Sistema Interamericano de Proteccin de los Derechos
Humanos (1948-1995): Evolucin, Estado Actual y Perspectivas, in Derecho Internacional y
Derechos Humanos/Droit international et droits de l'homme 47 (D. Bardonnet & A.A. Canado
Trindade eds., 1996).
52
11
the right to work and fair remuneration; the right to leisure time; the right to social
security; the right to recognition of juridical personally and civil rights; the right to
a fair trial; the right to nationality; the right to participate in government; the right
to petition; and the right of asylum53. The duties include: duties to society; duties
toward children and parents; duties to receive instruction; duties to vote; duties to
obey the law; duties to serve the community and the nation; duties with respect to
social security and welfare; duties to pay taxes; duties to work; and duties to refrain
from political activities in a foreign country.
17. The American Declaration was not meant to be legally binding54. However, the
American Declaration became indirectly binding thanks to the inter-American
bodies dynamic interpretation. In Advisory Opinion n1055, the Court stated the
following: What is clear () is that the Declaration is not a treaty as defined by
the Vienna Conventions because it was not approved as such ()56.However,
according to the Court, the American Declaration is for these States a source of
international obligations related to the Charter of the Organization.57 The
Declaration is therefore virtually considered as the comprehensive and binding
definition of the Charters human rights obligations. In other words, the American
Declaration is seen as the authoritative interpretation of the fundamental rights of
the individual proclaimed by the OAS Charter 58. The Inter-American Commission
has adopted the same position and applies and interprets the rights of the
Declaration as an indirectly legally binding instrument when monitoring the
Charters human rights obligations.
See : S. DAVIDSON, The Civil and Political Rights Protected in the Inter-American Human Rights
System, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note
3, 213.
54
See : D. CASSEL, Inter-American Human Rights Law, Soft and Hard, in Commitment and
Compliance: The Role of Non-Binding Norms in the International Legal System (D. Shelton ed.
Oxford University Press) 393 (Oxford 2000) ; D. HARRIS, Regional Protection of Human Rights: The
Inter-American Achievement, in The Inter-American System of Human Rights (D. Harris & S.
Livingstone eds.) supra note 3, at 4; Th. BUERGENTHAL, The American Human Rights Declaration:
Random Reflections, in Staat und Vlkerrechtsordnung (Festschrift fur Karl Doehring, G. Ress & T.
Stein eds. 1989), 133.
55
Advisory opinion OC-10/1989, 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, Inter-Am.
Ct. H.R. (ser. A) No 10, 33 (1989). The question asked by the government of Colombia regarding
the 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 was the following: Does Article 64
authorize the Inter-American Court of Human Rights to render advisory opinions at the request of a
member state or one of the organs of the OAS, regarding the interpretation of the American
Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of
American States in Bogot in 1948? (2).
56
Id. 35: The mere fact that the Declaration is not a treaty does not necessarily compel the
conclusion that the Court lacks the power to render an advisory opinion containing an interpretation
of the American Declaration.
57
Id. 45.
58
Id. 43: Hence it may be said that by means of an authoritative interpretation, the member states
of the Organization have signaled their agreement that the Declaration contains and defines the
fundamental human rights referred to in the Charter. Thus the Charter of the Organization cannot be
interpreted and applied as far as human rights are concerned without relating its norms, consistent
with the practice of the organs of the OAS, to the corresponding provisions of the Declaration
53
12
18. The binding nature of the Declaration, however, remains controversial for
some States, in particular for the United States, that have repeatedly declared that
the Declaration was not intended to be legally binding.59 The issue of the legal
effect of the Declaration is not only a theoretical one. It entails two questions
essential to the efficient functioning of the inter-American system for the
protection of human rights. The first question deals with the States legal
obligations as regards the American Declaration. Since the Declaration is indirectly
binding, the scope of the obligations of the states is unclear. Indeed, as the
Declaration is not a convention and has not been adopted with the aim of being
legally binding, it has been generally phrased and concerns individual human
beings rather than States 60. Because of its declaratory nature, this text does not
provide general or specific legal obligations and the rights it enumerates are
expressed in absolute terms61. Moreover, since it is not a treaty, states cannot make
reservations, suspend, or derogate from the text. Therefore, the use of the
Declaration as the authoritative enumeration of the OAS Charters human rights
obligations may raise difficult questions of interpretation that the Commission
must address. The second question deals with the coexistence of the Declaration
and the Convention. Indeed, not all OAS member States have ratified or adopted
the American Convention. For these States non-Party, which are the United States,
Canada and most of the Anglophone Caribbean, the main inter-American human
rights source of obligations remains the American Declaration. For the States
Parties to the Convention, the question was whether they were still bound by the
Declaration. This question is highly relevant since the rights protected in the
Declaration and the Convention are not identical. Indeed, the Declaration protects
some rights that are not mentioned in the Convention, most notably socioeconomic and cultural rights62 such as the rights to education, to the benefits of
Roach & Pinkerton v. United States, Case 9647, Inter-Am. Ct. H.R., Resolution No 3/87,
OEA/Ser.L/V/II.71 Doc. 9 rev. 1, 38 (1986-1987) : The U.S. Government does not agree with the
Commission's holding in Case N 2141 (United States) that the Declaration acquired binding force
with the adoption of the revised OAS Charter. (Res. 23/81, OAS/Ser. L/V/II.52, Doc. 48. Mar. 6,
1981) The Declaration was not drafted with the intent to create legal obligations. Advisory opinion
OC-10/1989, 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, Inter-Am. Ct. H.R. (ser. A)
No 10, 33 (1989). 12: The Government of the United States of America believes: The American
Declaration of the Rights and Duties of Man represents a noble statement of the human rights
aspirations of the American States. Unlike the American Convention, however, it was not drafted as a
legal instrument and lacks the precision necessary to resolve complex legal questions. Its normative
value lies as a declaration of basic moral principles and broad political commitments and as a basis to
review the general human rights performance of member states, not as a binding set of obligations.
The United States recognizes the good intentions of those who would transform the American
Declaration from a statement of principles into a binding legal instrument. But good intentions do not
make law. It would seriously undermine the process of international lawmaking by which sovereign
states voluntarily undertake specified legal obligations to impose legal obligations on states through
a process of reinterpretation or inference from a non-binding statement of principles.
60
The Declaration states that All men are born free and equal () rather than States shall respect
and ensure the following rights and liberties.
61
Yet, Article 28 of the Declaration states the scope of the rights protected: The rights of man are
limited by the rights of others, by the security of all, and by the just demands of the general welfare
and the advancement of democracy.
62
See M. CRAVEN, The Protection of Economic, Social and Cultural Rights under the inter-American
System of Human Rights, in The Inter-American System of Human Rights (D. Harris & S.
Livingstone eds.) supra note 3, 291-6.
59
13
culture, to work and to fair remuneration, to leisure time and to the use thereof, to
social security, etc. In theory the two instruments coexist in such a way that a State
that ratifies the Convention is still bound as a member of the OAS by the
Declaration, since that State remains Party to Bogot Charter. The Inter-American
Court corroborated this theory in Advisory Opinion n10: For the States Parties to
the Convention, the specific source of their obligations with respect to the
protection of human rights is, in principle, the Convention itself. It must be
remembered, however, that, given the provisions of Article 29(d), these States
cannot escape the obligations they have as members of the OAS under the
Declaration, notwithstanding the fact that the Convention is the governing
instrument for the States Parties thereto63. Yet, despite the position of the Court,
the Inter-American Commission, which is the only body competent to monitor the
states human rights obligations provided by the Bogot Charter (and the American
Declaration), held the opposite view, according to which States parties to the
Convention are not bound anymore by the Declaration. That interpretation derives
from Article 1(2) of the Commissions statute, which states the following: human
rights are understood to be: a. The rights set forth in the American Convention on
Human Rights, in relation to the States Parties thereto; b. The rights set forth in the
American Declaration of the Rights and Duties of Man, in relation to the other
member states. The Commission applies a strict interpretation of this provision
and, as such, refuses to apply the American Declaration to states party to the
Convention.64 This interpretation is quite restrictive, as the main objective of the
1979 amendment to the statute of the Commission was to ensure that the
Commission retained its monitoring powers over non Convention parties once the
Convention had entered into force,65 rather than excluding states party to the
Convention from the application of the Declaration. However, the Commission
opted to distinguish clearly between the two systems based on two instruments
with different rights, mechanisms and States.66
Advisory opinion OC-10/1989, 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, Inter-Am.
Ct. H.R. (ser. A) No 10, 46 (1989).
64
Maximo Bonchil et al. v. Argentina, Cases 9777 and 9718, Inter-Am. C.H.R., OEA/Ser.L/V/II.74,
doc. 10 rev.1, Reports, Point V Conclusions 6, (1987-1988): () no existe acuerdo o instrumento
formulado o concertado entre los Estados Partes en la Convencin Americana a los efectos de hacer
valer la Declaracin Americana de los Derechos y Deberes del Hombre (1948) como parte integrante
de la Convencin o suplementaria de la misma para los Estados Partes. () En consecuencia se
concluye que, en cuanto a los Estados Partes en la Convencin y para el caso que nos ocupa, la
Repblica Argentina, la CIDH solamente puede, conforme con su Reglamento (Art. 31), tomar en
consideracin las peticiones sobre presuntas violaciones de derechos humanos definidos en la
Convencin Americana sobre Derechos Humanos. El derecho al trabajo no est todava incorporado a
la Convencin que no incluye los derechos econmicos, sociales y culturales.
65
On these questions see D. HARRIS, Regional Protection of Human Rights: The Inter-American
Achievement, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.)
supra note 3, 8.
66
The states party to the Convention are, however, still bound by the Declaration regarding actions
that predated their ratification of the Convention. See Alonso Eugnio Da Silva v. Brazil, Case
11.291, Inter-Am. C.H.R., Report No 9/00, OEA/Ser.L/V/II.106 doc. 6 rev., 19 (1999): The
Commission recalls that, although the events took place on March 8, 1992, a number of months
before Brazil ratified the Convention on September 25, 1992, the Brazilian State is not exempt from
responsibility for acts violating human rights occurring prior to ratification of the Convention, since
the rights guaranteed by the Declaration were binding. The Inter-American Court of Human Rights
63
14
1.3.2.
15
humane treatment, the prohibition of torture, the freedom from slavery and
servitude, the right to personal liberty, the right to a fair trial and judicial
guarantees and protection, the freedom from ex post facto laws, the right to a fair
compensation for miscarriage of justice, the right to privacy, the freedom of
conscience and religion, the freedom of thought and expression, the right to reply,
the right of assembly, the freedom of association, the rights of the family, the right
to a name, the rights of the child, the right to nationality, the right to property, the
freedom of movement and residence, the right to participate in government, the
right to equal protection of the law, and article 26 refers to the progressive
implementation of economic, social and cultural rights70. Article 32 endorses the
relationship between rights and duties by providing that every person has
responsibilities to his family, his community and mankind. The beneficiaries of
most of the rights provided by the Convention are persons, meaning in the
Convention every human being71. That means that juridical persons such as
corporations are not the beneficiaries of the Conventions rights. As a consequence,
the victim that alleges human rights abuses before the Commission must be a
physical person72.
22. The state parties have two general obligations under the Convention: the
obligation to respect and ensure human rights, and the obligation to adopt the
domestic laws necessary to this end. First, according to Article 1 of the Convention
the state parties undertake to respect the rights and freedoms of the Convention
and to ensure to all persons subject to their jurisdiction the free and full exercise
of those rights and freedoms, without any discrimination (). This general
obligation is of major importance in the American Convention since the obligation
to respect and ensure applies to all the rights recognized in the Convention.
Respecting these rights entails that states cannot violate, directly or indirectly, their
obligation to ensure entails that they must adopt and implement the measures that
are reasonable and necessary to ensure the free and full enjoyment of human rights,
which includes their duties to prevent, to investigate, to sanction and to compensate
Article 26. Progressive Development. The States Parties undertake to adopt measures, both
internally and through international cooperation, especially those of an economic and technical
nature, with a view to achieving progressively, by legislation or other appropriate means, the full
realization of the rights implicit in the economic, social, educational, scientific, and cultural standards
set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos
Aires. See M. CRAVEN, The Protection of Economic, Social and Cultural Rights under the interAmerican System of Human Rights, in The Inter-American System of Human Rights (D. Harris & S.
Livingstone eds.) supra note 3, 289.
71
Article 1(2) of the American Convention. However, the beneficiaries of the political rights provided
by article 23 of the Convention are the citizens.
72
Toms Enrique Carvallo Quintana v. Argentina, Case 11.859, Inter-Am. C.H.R., Report No. 67/01,
OEA/Ser./L/V/II.114 doc. 5. rev., 55 (2001): The jurisprudence of the Commission is consistent in
indicating that claims raised before it that were litigated before the national courts in the name of
juridical persons as opposed to individual victims are not admissible, because the Commission lacks
the competence ratione personae to examine claims which concern the rights of juridical
persons. This is indicated quite directly in the preamble of the American Convention, which indicates
that the essential rights protected are based on attributes of the human personality, Article 1(1),
which speaks to the obligation of the State to respect and ensure the rights of all persons subject to
its jurisdiction, and Article 1(2) which defines person as every human being.The present case
discloses no elements to justify a change in the Commissions practice in this regard.
70
16
the human rights abuses73. Moreover, Article 25 of the Convention provides that the
state parties have the obligation to ensure that the victims of human rights abuses
should be granted an effective judicial remedy. Second, according to Article 2 of
the Convention, which provides the other general obligation, the states parties
undertake to adopt, in accordance with their constitutional processes and the
provisions of this Convention, such legislative or other measures as may be
necessary to give effect to those rights or freedoms. For the Court, that general
obligation implies the adoption of measures on two fronts: on the one hand, the
suppression of rules and practices of any kind that entail violation of the guarantees
set forth in the Convention; on the other, the issuance of rules and the development
of practices leading to the effective observance of said guarantees74. For the Court,
the international liability of the states, arises from the violation of the general
obligations, erga omnes in nature, to respect and enforce respect for - guaranteethe protection standards and to ensure the effectiveness of the rights enshrined
therein, in all circumstances and in respect to all persons under their jurisdiction,
embodied in Articles 1(1) and 2 of said treaty75.
23. The majority of the rights of the Convention are not absolute. Most of them
can be subject to the restrictions established by law when such restrictions are
necessary in a democratic society, and are aimed at lawful purposes (such as
protecting national security, public safety or public order, or protecting public
health or the rights and freedoms of others)76. Moreover, Article 27 of the
Convention states that in time of war, public danger, or other emergency that
threatens the independence or security of a State Party, it may take measures
derogating from its obligations under the present Convention to the extent and for
the period of time strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under international
law and do not involve discrimination on the ground of race, color, sex, language,
religion, or social origin77. Derogation is not permitted for the following so-called
non-derogable rights, however: the right to juridical personality; the right to life;
the right to humane treatment; the freedom from slavery; the freedom from ex post
facto laws; the freedom of conscience and religion; the rights of the family; the
See: F. BASCH, The Doctrine of the Inter-American Court of Human Rights Regarding StatesDuty
to Punish Human Rights Violations and Its Dangers, 23 Am. U. Intl L. Rev. 195.
74
Case of the Juvenile Reeducation Institute v. Paraguay, 2004 Inter-Am. Ct HR, (ser. C) No 112,
206 (September 2, 2004); Case Cantoral Benavides v. Peru, 2000 Inter-Am. Ct HR, (ser. C) No 69,
78 (August 18, 2000).
75
Case of Balden-Garca v. Peru, 2006 Inter-Am. Ct HR, (ser. C) No 147, 80, (April 06, 2006);
Case of the Pueblo Bello Massacre v. Colombia, 2006 Inter-Am. Ct HR, (ser. C) No 140, 111
(January 31, 2006); Case of the Mapiripn Massacre v. Colombia, 2005 Inter-Am. Ct HR, (ser. C)
No 134, 111 (September 15, 2005).
76
Article 30 of the American Convention (general provision related to the restrictions). See on that
article : Advisory Opinion OC-6/86, The Word Laws in Article 30 of the American Convention on
Human Rights, Inter. Am. Ct. HR, Series A, No 6 (1986). See for the specific restrictions to certain
rights: Articles 8(5) (judicial guarantees); 13 (freedom of expression); 15 (freedom of assembly); 16
(freedom of association); 21 (right to property); 22 (freedom to move); 12 (freedom of religion); 11
(right to privacy).
77
See J. FITZPATRICK, States of Emergency in the Inter-American Human Rights System, in The
Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note 3, 371; C.
GROSSMAN, A Framework for the Examination of States of Emergency Under the American
Convention on Human Rights, 1 Am.U.J.Intl L.&Pol. 35 (1986).
73
17
right to a name; the rights of the child; the right to nationality; the right to
participate in government; and the judicial guarantees essential for the protection of
such rights78. In addition, according to Article 75 of the Convention, the states can
make reservations to the Convention only in conformity with the 1969 Vienna
Convention on the Law of Treaties 79.
1.3.3.
24. According to Article 77 of the Convention, any state party or the Commission
may submit a protocol proposal80. The objective of this provision is to include
gradually other rights and freedoms in the system of protection. Two additional
protocols to the American Convention have been adopted.
25. The Protocol of San Salvador was adopted in 1988 and has been ratified by
Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador,
Guatemala, Mexico, Panama, Paraguay, Peru, Suriname and Uruguay. It intends to
reaffirm, develop, perfect and protect economic, social and cultural rights81. The
States Parties, according to Article 1 of the Protocol, undertake to adopt the
necessary measures, both domestically and through international cooperation,
especially economic and technical, to the extent allowed by their available
resources, and taking into account their degree of development, for the purpose of
achieving progressively and pursuant to their internal legislations, the full
observance of the rights recognized in this Protocol. The Protocol recognizes the
rights to work and to the just, equitable and satisfactory conditions of work; the
rights regarding trade unions; the right to social security; the right to health; the
right to a healthy environment; the right to food ; the right to education ; the right
to the benefits of culture ; the right to the formation and the protection of families ;
the rights of children ; the protection of the elderly; and the protection of the
handicapped. According to Article 19 of the Protocol, the main means of
monitoring consist of a state report mechanism. The state parties have to submit
periodic reports on the progressive measures they have taken to ensure due respect
for the rights set forth in the Protocol for examination by the Inter-American
Economic and Social Council and the Inter-American Council for Education,
Science and Culture. Only the violations of the right of workers to organize trade
Article 27(2) of the American Convention. See on the interpretation of that provision: Advisory
Opinion OC-8/87, Habeas corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American
Convention on Human Rights), Inter. Am. Ct. HR, Series A, No 8 (1987); Advisory Opinion OC9/87, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on
Human Rights), Inter. Am. Ct. HR, Series A, No 9 (1987).
79
See: Advisory Opinion OC-2/82, The Effect of Reservations on the Entry into Force of the
American Convention on Human Rights (Arts. 74 and 75), Inter. Am. Ct. HR, (ser. A), No 2 (1982).
80
According to Article 77(2) of the Convention Each protocol shall determine the manner of its
entry into force and shall be applied only among the States Parties to it.
81
Protocol to the American Convention on Human Rights in the Area of Economic, Social, and
Cultural Rights, Nov. 17,1988, Resolution AGIRES 907 (XVIII-0/88), reprinted in 28 I.L.M. 156
(1989). See : L. LEBLANC, The Economic, Social and Cultural Rights Protocol to the American
Convention and its Background, 2, Neth. Q. Hum. Right, 130 (1992); A.A. CANADO TRINDADE, La
Cuestin de la Proteccin Internacional de los Derechos Econmicos, Sociales y Culturales:
Evolucin y Tendencias Actuales (1992); A.A. CANADO TRINDADE, La question de la protection
internationale des droits conomiques, sociaux et culturels: volution et tendances actuelles, 94 Revue
gnrale de Droit international public 913 (1990).
78
18
unions and to join the union of their choice and of the right to education can be
alleged in individual petitions before the Inter-American Commission of Human
Rights, and, when applicable, before the Inter-American Court of Human Rights.
26. The second additional protocol deals with the abolition of death penalty. It was
adopted in 1990 in Asuncion, Paraguay, and entered into force on August 28,
199182. It has been ratified by Brazil, Costa Rica, Ecuador, Mexico, Nicaragua,
Panama, Paraguay, Uruguay and Venezuela. According to Article 1, the states
parties shall not apply the death penalty in their territory to any person subject to
their jurisdiction. During the travaux prparatoires of the American Convention,
a suggested provision unconditionally prohibiting capital punishment was rejected.
In that context, the Second Protocol intended to affirm the abolitionist tendency of
the American States.
1.3.4.
27. Moreover, the American States have adopted a series of several instruments in
relation to specific rights or specific situations. Four main inter-American
Conventions related to human rights and open for signature to all the OAS States
(and not exclusively to the States Parties to the American Convention) have been
adopted83.
28. First, the Inter-American Convention to Prevent and Punish Torture was
adopted in 1985 and entered into force February 28, 198784. The State Parties
undertake to prevent and punish torture understood to be any act intentionally
performed whereby physical or mental pain or suffering is inflicted on a person for
purposes of criminal investigation, as a means of intimidation, as personal
punishment, as a preventive measure, as a penalty, or for any other purpose85.
According to Article 2 of the Convention, torture shall also be understood to be
the use of methods upon a person intended to obliterate the personality of the
victim or to diminish his physical or mental capacities, even if they do not cause
physical pain or mental anguish. The state parties should either extradite anyone
accused of having committed the crime of torture or sentenced for the commission
of that crime, or take the necessary measures to criminalize torture and prosecute
Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990,
Inter-Am. C.H.R., reprinted in 29 I.L.M. 1447 (1990).
83
Inter-American Convention to Prevent and Punish Torture (Adopted at Cartagena de Indias,
Colombia, on December 9, 1985); Inter-American Convention on Forced Disappearance of
Persons (Adopted at Belm do Par, Brasil, on June 9, 1994); Inter-American Convention on the
Prevention, punishment and eradication of violence against Women "Convention of Belem do
Para " (Adopted in Belm do Par, Brasil, on June 9, 1994); Inter-American Convention on the
Elimination of all forms of discrimination against persons with disabilities (Adopted at Guatemala
City, Guatemala, on June 7, 1999).
84
Inter-American Convention to Prevent and Punish Torture, entered into force Feb. 22, 1987, OAS
Treaty Series No. 67, reprinted in 25 I.L.M. 519 (1986). To date, the states parties are : Argentina,
Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala,
Mexico, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. See also on that instrument :
H. GROS ESPIELL, Las Convenciones sobre Tortura de las Naciones Unidas y de la Organizacin de
los Estados Americanos, in XIV Curso de Derecho Internacional Organizado por el Comit Jurdico
Interamericano 221-42 (Washington, D.C., OAS General Secretariat 1987).
85
Articles 1 & 2 of the Inter-American Convention to Prevent and Punish Torture.
82
19
offenders when torture has been committed within its jurisdiction, by one of its
nationals, or, if appropriate, when the victim is of its nationals86. This Convention
spells out more specifically the content of Article 5 of the American Convention,
which also prohibits torture and inhumane treatments. According to Article 8 of the
Inter-American Convention to Prevent and Punish Torture, after all the domestic
legal procedures of the respective State and the corresponding appeals have been
exhausted, the case may be submitted to the international fora whose competence
has been recognized by that State. The international fora can be either the interAmerican Commission87 or, for the States that have accepted its contentious
jurisdiction, the Inter-American Court of Human Rights88.
29. Second, the Inter-American Convention on Forced Disappearance of Persons
was adopted in 1994 and entered into force March 28, 199689. Article 2 of the
Convention defines forced disappearance as the act of depriving a person or
persons of his or their freedom, in whatever way, perpetrated by agents of the state
or by persons or groups of persons acting with the authorization, support, or
acquiescence of the state, followed by an absence of information or a refusal to
acknowledge that deprivation of freedom or to give information on the
whereabouts of that person, thereby impeding his or her recourse to the applicable
legal remedies and procedural guarantees. State parties cannot practice, permit or
tolerate forced disappearance, and they must punish the persons who commit or
attempt to commit forced disappearance and their accomplices. They also must
cooperate with one another to adopt the necessary measures to prevent, punish and
eliminate such practices. The state parties undertake the obligation to extradite or
prosecute the authors of such crimes. The Inter-American Commission and the
Inter-American Court for the states that have accepted its contentious jurisdiction
20
21
forms of discrimination against persons with disabilities and at promoting their full
integration into society. The state parties undertake to adopt specific measures
mentioned in broad terms by Articles 3 through 5 of the Convention. According to
Article 1 of the Convention, disability is a physical, mental, or sensory
impairment, whether permanent or temporary, that limits the capacity to perform
one or more essential activities of daily life, and which can be caused or aggravated
by the economic and social environment. Discrimination against persons with
disability means any distinction, exclusion, or restriction based on a disability,
record of disability, condition resulting from a previous disability, or perception of
disability, whether present or past, which has the effect or objective of impairing or
nullifying the recognition, enjoyment, or exercise by a person with a disability of
his or her human rights and fundamental freedoms. A Committee for the
Elimination of All Forms of Discrimination against Persons with Disabilities was
created by the Convention to ensure the state parties follow up of their
commitments through the evaluation of reports they must submit every four years
after the submission of an initial report.
1.4. THE INTER-AMERICAN HUMAN RIGHTS MECHANISMS: REPORT AND
COMPLAINT
32. The Commission and the Court can use various mechanisms to monitor,
protect, and promote human rights. Some of them may potentially be used with
respect to all the thirty-five states of the OAS, while others require that the state
concerned has ratified the American Convention. Of course, the OAS Charterbased system and the American Convention-based system overlap and the
mechanisms are to some extent interrelated. The two primary existing mechanisms
are the country report mechanisms, which usually deal with human rights situations
in general in specific countries, and the complaint mechanisms, which are used to
address specific cases of human rights abuses.
1.4.1.
22
monitor serious and massive human rights abuses. The mechanism was used for the
first time in the early 1960s in Cuba, Domican Republic and Haiti. The
Commission did not proceed to systematic and regular studies of all the OAS
countries, although this might have been an option if the financial situation of the
Commission had allowed it. The Commission has discretionary power to select the
countries where the human rights situation should be investigated97, and will
usually take such initiative when there is evidence (petitions or reports) showing
that there are serious and widespread human rights abuses in a country, or to ensure
the follow-up of a past country visit. The Commission may focus on the general
human rights situation of a country, as it did in Venezuela in 2003, or on specific
issues, as it did in its 2000 report on Canada that focused on refugees.
34. The Commission, interpreting broadly the terms of its initial mandate that gave
it the power to prepare studies and reports and to make recommendations to the
governments ()98, has developed its own method of investigation which has
been since formalized 99. The means of investigation include on-site investigations
that require the express agreement of the state concerned100. The rules governing
such on-site visits are codified in Articles 51-55 of the Commissions rules of
procedures and include the right for the Commission to travel freely in the country,
to visit prisons and to interview any persons, groups, entities or institutions freely
and in private. Using the information gathered, the Commission prepares a first
draft of its report that must then be submitted to the state concerned for its
comments. After receiving the states response, the Commission may reevaluate
the findings and amend the report if it deems appropriate. If the state ignores its
request for comments, the Commission will publish the report. If the state
responds, however, the Commission if free to decide whether or not the report
should be published.
35. Moreover, the Commission may include updated information on the human
rights situation in countries that deserve special attention in its annual report. The
OAS States required the adoption of some rule or at least criteria for selection of
control exercised through country reports with regard to states party to the Convention is essentially
equivalent to the control that the Commission exercises over member states of the OAS
97
In some cases, an OAS organ could request that the Commission undertake such an investigation
(for instance, concerning Haiti, the Ad Hoc Meeting of Ministers of Foreign Affairs invited the InterAmerican Commission to pursue its ongoing and close monitoring of the situation in Haiti and
requested to remain informed, through the Permanent Council (see OEA/Ser.FV.1, MRE/RES. 5/93,
6 June 1993)). A government can also request a country study in its own country (see OAS, IACHR
Report on the Situation of Human Rights in Nicaragua (1981)).
98
Article 9 of the 1960 Commissions Statute. See the original Statute of the Commission, Art. 11.(c),
reproduced in IACHR Basic Documents, (OEA/Ser.L/V/1.4, 1 Dec. 1960).
99
For Medina, the first report published in 1962 about Cuba contained the rudiments of what is
today a country report, while the 1985 report on Chile can be considered a model report. C.
MEDINA, The Role of Country Reports in the Inter-American System of Human Rights, in The InterAmerican System of Human Rights, supra note 3, at 118.
100
E. VARGAS CARREO, Las Observaciones in Loco Practicadas por La Comisin Interamericana de
Derechos Humanos, in Derechos Humanos en las Amricas Homenaje a la Memoria de C.A.
Dunshee de Abranches 290 (1984); E. MRQUEZ RODRGUEZ, Visitas de Observacin In Loco de la
Comisin Interamericana de Derechos Humanos y Sus Informes, Estudios Bsicos de Derechos
Humanos 135 (A.A. Canado Trindade et al. eds., 1995).
23
these countries101. In its 1996 annual report, the Commission clarified the criteria
applicable for purposes of identifying those OAS member states whose human
rights practices merit special attention. The first criterion is the democratic test
according to which the Commission could investigate in states which are ruled by
governments which have not been chosen by secret ballot in honest, periodic and
free popular elections in accordance with accepted international standards. The
second criterion is the emergency test where the free exercise of rights contained
in the American Convention or Declaration have been effectively suspended, in
whole or part, by virtue of the imposition of exceptional measures, such as a state
of emergency, state of siege, prompt security measures, and the like. The third
criterion is the mass and gross violation test where there are serious accusations
that a state is engaging in mass and gross violations of human rights set forth in the
American Convention and/or Declaration or other applicable human rights
instruments. The fourth criterion concerns those states which are in a process of
transition from any of the above three situations. Finally, the last criterion added
in 1997 regards temporary or structural situations that may appear in member
states confronted, for various reasons, with situations that seriously affect the
enjoyment of fundamental rights enshrined in the American Convention or the
American Declaration. This criterion includes, for example: grave situations of
violations that prevent the proper application of the rule of law; serious
institutional crises; processes of institutional change which have negative
consequences for human rights; or grave omissions in the adoption of the
provisions necessary for the effective exercise of fundamental rights. Applying
these criteria over the last five years, the Commission has focused in its annual
report on the following states: Columbia, Cuba, Ecuador, Haiti, Guatemala and
Venezuela.
1.4.2.
36. There are two main kinds of complaint mechanisms in the inter-American
human rights system102. First, as regards the states that did not ratify the
Convention, the Commission examines individual petitions alleging specific
human rights abuses of the American Declaration. Second, the American
Convention empowers the Commission and, under certain conditions, the Court, to
See para. 15 of the 1993 General Assemblys resolution, which requests that in its annual report
the Commission should strike a general balance of how human rights have fared in all of the member
states of the OAS, taking into account, among other sources, information supplied by member states.
AG/Res.1213, n. 25.
102
Article 23 of the Commissions rules of procedure provides that Any person or group of persons
or nongovernmental entity legally recognized in one or more of the Member States of the OAS may
submit petitions to the Commission, on their own behalf or on behalf of third persons, concerning
alleged violations of a human right recognized in, as the case may be, the American Declaration of
the Rights and Duties of Man, the American Convention on Human Rights, the Additional Protocol in
the Area of Economic, Social and Cultural Rights, 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/or the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women, in accordance with their respective provisions, the Statute
of the Commission, and these Rules of Procedure.
101
24
25
26
drafts a report describing the facts and the settlement, and follows-up the
implementation and respect of the agreement by the parties. In 2007, the petitioners
and the states have reached such settlements in 5 cases under the auspice of the
Commission.
40. In the third phase of the procedure, if the parties cannot reach a friendly
settlement, the Commission writes a preliminary report on the merits that examines
the arguments, the evidence presented by the parties, and the information obtained
during hearings and on-site observations114 and, sets out the conclusions, and if
relevant, the recommendations of the Commission115. If the report finds that a
violation of the Declaration or of the Convention has been committed it is
transmitted to the state concerned. Within three months following the notification
of the Commissions report, the state must either comply with or respond to the
Commissions recommendations116.
41. In the fourth phase of the procedure, the Commission deals with the
conclusions of the case, if the dispute has not been solved within the three months
from the notification of the report to the state117. At this point, the Commission must
refer all cases of non-compliance to the Court if the state party to the Convention
has accepted the contentious jurisdiction of the Court unless the Commission
decides otherwise by an absolute majority vote. To address cases not referred to the
Court, either because the state is not party to the Convention or because a state
party to the Convention did not accept the Courts contentious jurisdiction, the
Commission may, by the vote of an absolute majority of its members, set forth its
opinion and conclusions concerning the question submitted for its consideration,
and when it finds that the Convention was violated, the Commission shall make
pertinent recommendations and shall prescribe a period within which the state is to
take the measures that are incumbent upon it to remedy the situation examined118.
After the expiration of that period, the Commission shall evaluate compliance
with its recommendations and shall decide by the vote of an absolute majority of
its members whether the state has taken adequate measures and whether to publish
its report119. The legal effect of the Commissions reports, especially those adopted
pursuant article 51 of the Convention finding a violation of the Convention, has
been debated 120. While it is difficult to claim that such a report is legally binding as
the Courts ruling would be, these reports could be considered an authoritative
legal determination related to the fulfillment of the states obligations121. An
evaluation of compliance with the Commission recommendations provided in its
reports showed that in 2007, of one hundred fourteen reports, total compliance has
Article 42(1) of the Commissions rules of procedure.
Article 50 of the American Convention.
116
Article 51 of the American Convention.
117
Article 45 of the Commissions rules of procedure.
118
Article 44(1) of the Commissions rules of procedure.
119
Article 51(3) of the American Convention and 45(3) of the Commissions rules of procedure.
120
G.J. BIDART CAMPOS & S. ALBANESE, El valor de las recomendaciones de la Comisin
Interamericana de Derechos Humanos, Jurisprudencia Argentina (1999), 357; F. SALVIOLI, Un
anlisis desde el principio pro persona, sobre el valor jurdico de las decisiones de la Comisin
Interamericana de Derechos Humanos, in Defensa de la Constitucin: Garantismo y controles. Libro
en reconocimiento al Dr. Germn J. Bidart Campos (V. Bazn ed, EDIAR, 2003) 143.
121
Th. BUERGENTHAL ET AL., supra note 3, 254.
114
115
27
28
cases and confront the state concerned130. The rule requiring that the procedure
before the Commission must be completed before the Court hears the case does not
mean that the Court is bound by the Commissions findings131. The Court has the
power to review Commissions factual and legal findings and in principle, the state
may raise preliminary objections that were rejected by the Commission at the
admissibility stage before the Court132. Moreover, the Court must assess its own
ratione materiae, temporis, loci and personae jurisdiction. State parties have raised
preliminary objections in fifty-eight cases of ninety-five and the Court admitted
such objections in only five of them133.
44. The procedures of the Court include both written and oral phases. The written
procedure consists of the filing of the application with the secretariat of the Court,
the notification of the application, the submission of written briefs containing
pleadings, motions and evidences (within the next two months after notification of
the application), and the submission of the respondents brief (within four months
after the notification of the application) in response to the application stating
whether it accepts or not the facts and agrees or not with the claims134. The oral
procedure consists of hearings where the parties plead their cases before the Court
and witnesses and experts are heard135. In 2007 the Court organized hearings in
twelve cases totaling seventeen days of hearings 136. The debates before the Court
may concern preliminary objections, factual allegations, merits, and reparations.
45. The proceedings may end in three different ways: a discontinuance of the case,
a friendly settlement; or the Courts judgment. A discontinuance of the case may
occur either because the claimant does not wish to proceed, in which case the Court
may strike the case from its list, or because the respondent assents to the claims, in
which case the Court evaluates this acquiescence, and if appropriate, determines
the appropriate reparations. Many of the states before the Court (in about 40% of
its Courts cases) recognize their international responsibility for the alleged
violations and assent, totally or partially, to the claims137. They then dispute only
the requests for reparations. In that case, the Courts ruling endorses the
acknowledgement, but still summarizes the facts and violations before discussing
reparations. Second, a friendly settlement may occur at any time during the
See Th. BUERGENTHAL ET AL., supra note 3, at 259 (the authors state that it remains to be seen
whether the recent changes in the Courts rules of Procedure, which give individuals standing in
proceedings before the Court, will prompt the Court to reverse that ruling and whether the states
parties to an inter-state dispute may waive the Commission proceedings since the inequality
between the parties () would not exist in this context).
131
However, the Court relies increasingly on the fact-findings provided by the Commission. See on
the issue : M. REISMAN & J.K. LEVIT, Fact-Finding Initiatives for the Inter-American Court of Human
Rights, in La Corte y el Sistema Interamericanos de Derechos Humanos 443-57 (R.N. Navia ed.,
(1994); Th. BUERGENTHAL, Judicial Fact-Finding: Inter-American Human Rights Court, in FactFinding before International Tribunals 261-74 (R.B. Lillich ed., 1990).
132
That question was discussed in the Courts first contentious case. Velsquez Rodrguez v.
Honduras, 1987 Inter-Am. Ct. H.R., (ser. C) No 1, 29 (June 26, 1987).
133
2007 annual report, Inter-Am. Ct. H.R., at 73.
134
Articles 32-39 of the Courts rules of procedure.
135
Articles 40-43 of the Courts rules of procedure.
136
2007 annual report, Inter-Am. Ct. H.R., at 65.
137
Kimel v. Argentina, Inter-Am. Ct. H.R., (ser. C) No 177, 18 (May 2, 2008) (Partial recognition of
responsibility); Case Barrios Altos v. Peru, Inter-Am Ct.H.R., (ser. C) No 75, 31 (March 14, 2001);
Aloeboetoe et al v. Suriname , Inter-Am. C.H.R.,(ser. C) No 11, 22 (December 4 1991).
130
29
procedure. However, the Court is free to decide to whether or not to strike the case.
Third, if none of these anticipated termination scenarios occurs, the Court will give
a ruling. The average length of the Courts proceedings (from the moment the
application was filed until the judgment) is 19.9 months138. According to Article 67
of the Convention, the judgments rendered by the Court are final and not subject to
appeal139. If there is a disagreement over the meaning or scope of the judgment,
however, the Court may interpret its judgment at the request of one of the parties 140.
46. When the Court finds a violation of the Convention, it shall rule that the
injured party be ensured the enjoyment of his right and freedom that was violated
and shall also rule, if appropriate, that the consequences of the measure or
situation that constituted the breach of such right or freedom be remedied and that
fair compensation be paid to the injured party141. According to that provision, the
Court is then empowered to give declaratory rulings stating the rights that were
violated, and to award monetary compensation142. The Court has developed a
creative and stimulating jurisprudence related to reparations143, which is a major
component of its rulings (infra). According to Article 68(1) of the Convention, the
state parties undertake to comply with the judgment of the Court in any case to
which they are parties. The legally binding nature of the Courts rulings is
indisputable. However, the Convention does not set any supervision mechanism to
ensure the enforcement of the Courts rulings. At most, Article 65 of the
Convention requires the Court to submit to each regular session of the General
Assembly of the OAS a report of its work specifying, in particular, the cases in
which a state has not complied with its judgments, making any pertinent
recommendations. The Assembly can then adopt a condemnatory resolution that
may carry a certain political weight and thus convince the state to enforce the
Courts ruling, and in particular, to implement the reparation measures ordered by
the Court 144. In a 2003 ruling dealing with its competence, the Court upheld its own
power to supervise the enforcement of its own judgments according to its own
rules145. The Court ensures the follow-up of the enforcement of its judgments and
provisional orders though a method of monitoring and reporting. Moreover, since
2007 annual report, Inter-Am. Ct. H.R., at 66.
Article 67 of the American Convention. See however on the request for revision of a judgment :
Genie Lacayo v. Nicaragua, Inter-Am. Ct. H.R., (ser. C), No 43, Request for Revision of the
Judgment of January 29, 1997, Order of the Inter-Am. Ct HR, Order, 13 (September 13, 1997).
140
Article 67 of the American Convention and 59 of the Courts rules of procedure.
141
Article 63(1) of the American Convention.
142
Article 68(2) provides that the part of a judgment that stipulates compensatory damages may be
executed in the country concerned in accordance with domestic procedure governing the execution of
judgments against the state.
143
On reparations in the inter-American human rights case law, see: D. SHELTON, Remedies in
International Human Rights Law (Oxford 1999); D. SHELTON, Reparations in the Inter-American
System, in The Inter-American System of Human Rights (D. Harris & S. Livingstone eds.) supra note
3, 151; JO M. PASQUALUCCI , Victim Reparations in the Inter-American Human Rights System: A
Critical Assessment of Current Practice and Procedure, 18 Mich. J. Int'l L. 1 (1996); F.O. SALVIOLI,
Algunas Reflexiones sobre la Indemnizacin en las Sentencias de la Corte Interamericana de
Derechos Humanos, in 3 Estudios Bsicos de Derechos Humanos 145 (A.A. Canado Trindade et al.
eds., 1995).
144
Th. BUERGENTHAL ET AL., supra note 3, at 264-65.
145
Baena Ricardo Case et al. v. Panama, Inter-Am. Ct. H.R., (ser. C) No. 104, 89 (November 28,
2003).
138
139
30
2007, the Court has held private hearings monitoring compliance with its
judgments and orders, using a form of ad hoc diplomatic and judicial mechanism to
ensure enforcement. As of 2007, of ninety-five cases dealt with by the Court,
eighty-four are in the stage of compliance monitoring146.
2
The Achievements of the Inter-American System for Human Rights:
the Courts Emerging Case-Law
47. Both the Commission and the Court have accomplished their original mission
by meeting the main challenges with which they were originally confronted. The
Commission has successfully dealt with a massive workload, despite weak
resources, producing about sixty country reports, performing eighty-seven on-site
visits, and hearing over twelve thousand individual complaints since the beginning
of its operations. Moreover, as an institution, the Commission was granted
constitutional legitimacy when it became a permanent organ of the OAS, without
losing the expansive and praetorian powers it had gained through a dynamic and
audacious practice in its first years of existence. The role of the Commission in the
slow process democratization in the hemisphere has been remarkable thanks to its
constant monitoring and promotion of human rights147. However, aside from this
crucial political accomplishment, the fundamental achievement of the interAmerican system for human rights rests on its contribution to international human
rights law as a whole. The Court, and the Commission as a conventional organ,
have been the architects of a creative and original jurisprudence that has
contributed significantly to the evolution of international human rights law. A brief
overview of the Courts case law is necessary to understand some of the major
innovations of the emerging inter-American human rights law148.
2007 Annual Report, Inter-Am. Ct. H.R., at 64.
Ch. CERNA, The Inter-American System for the Protection of Human Rights, 16 Fla. J. Int'l L. 195,
(2004).
148
The Courts case law dealt mainly with the following issues (the list is illustrative): Forced
disappearances (see. e.g.: Velasquez Rodriguez v. Honduras ; Fairen-Garbi v. Honduras ; GodinezCruz v. Honduras ; Blake v. Guatemala ; Bamaca Velasquez v. Guatemala ; Juan Humberto Sanchez
v. Honduras ; Gomez Palomino v. Peru ; Blanco Romero v. Venezuela ; Goiburu v. Paraguay) ;
killings (see e.g.: Myrna Mack-Chang v. Guatemala ; Molina-Theissen v. Guatemala ; Miguel Castro
Castro Prison v. Peru ; La Cantuta v. Peru) ; death penalty and judicial guarantees (see e.g.: Hilaire
Constantine et al. v. Trinidad and Tobago ; Fermin Ramirez v. Guatemala ; Raxcaco-Reyes v.
Guatemala ; Boyce et al. v. Barbados) ; paramilitary attacks (see e.g.: 19 Tradesmen v. Colombia ;
Las Palmeras v. Colombia ; Plan de Sanchez Massacre v. Guatemala ; Mapiripan Massacre v.
Colombia ; Pueblo Bello Massacre v. Colombia ; Ituango Massacres v. Colombia ; La Rochela
Massacre v. Colombia) ; handicapped persons rights to life and health (Ximenez Lopes v. Brazil) ;
ill-treatments of detainees (see e.g.: Loayza-Tamayo v. Peru ; M. Urrutia v. Guatemala ; G.
Paquiyauri v. Peru ; Tibi v. Ecuador); prison conditions (see e.g.: Montero Aranguren et al. v.
Venezuela ; Yvos Neptune v. Haiti) ; slavery and forced labor (see e.g.: Massacres de Ituango v.
Colombia) ; right to an adequate standard for living and right to life (se e.g. : Case of the "Juvenile
Reeducation Institute" v. Paraguay ; Yakye Axa v. Paraguay ; Ximenez Lopes v. Brazil) ; corporal
punishment (see e.g. : Caesar v. Trinidad and Tobago) ; privation of liberty (see e.g. : Suarez Rosero
v. Ecuador; Tibi v. Ecuador ; Acosta Calderon v. Ecuador ; Yvon Neptune v. Haiti) ; judicial
guarantees and military jurisdictions (see e.g. : Castillo Petruzzi v. Peru ; Lori Berenson Mejia v.
Peru ; Cantoral Benavides v. Peru ; Durante et Ugarte v. Peru ; Cesti Hurtado v. Peru ; Ivcher
Bronstein v. Peru) ; right to the truth (see e.g. : Barrios Altos v. Peru ; Bamaca Velasquez v.
Guatemala ; Hermanas Serrano Cruz ; Blanco-Romero v. Venezuela ; Gutierrez Soler v. Colombia ;
Almonacid Arellano v. Chili ; Goiburu v. Paraguay) ; judicial guarantees, due process and terrorism
(see e.g.: Castillo Petruzzi v. Peru ; Lori Berenson Mejia v. Peru ; Cantoral Benavides v. Peru ;
146
147
31
Durante et Ugarte v. Peru ; Cesti Hurtado v. Peru ; Ivcher Bronstein v. Peru) ; ex post facto laws (see
e.g. : Fermin Ramirez v. Guatemala ; Raxcaco-Reyes v. Guatemala ; Yvon Neptune v. Haiti) ; legality
of crimes and punishments (see e.g. : Lori Berenson Mejia v. Peru ; Asto y Rojas v. Peru) ; freedom
of expression (see e.g. : Olmedo-Bustos et al. v. Chili ; Herrera Ulloa v. Costa Rica ; Canese v.
Paraguay ; Palamara-Iribarne v. Chili ; Lopez Alvarez v. Honduras ; Kimel v. Argentine ; Claude
Reyes v. Chili) ; trade union rights (see e.g. : Huilca Tecse v. Peru) ; right to a name and judicial
personality (see e.g. : Ninas Yean et Bosico v. Dominican Republic) ; rights of the children (see e.g. :
Villagran Morales et al. v. Guatemala ; Paniagua Morales et al. v. Guatemala; Case of the "Juvenile
Reeducation Institute" v. Paraguay ; Servellon Garcia et al. v. Honduras); right to nationality (see
e.g. : Castillo Petruzzi v. Peru ; Ninas Yean & Bosico v. Dominican Republic) ; right to property (see
e.g. : Mayagna (Sumo) Awas Tingni v. Nicaragua ; Moiwana v. Surinam ; Yakye Axa v. Paraguay ;
Sawhoyamaxa v. Paraguay ; Saramaka People v. Surinam ; Case of the Five Pensioners v. Peru ;
Tibi v. Ecuador ; Palamara Iribarne v. Chili ; Aguado-Alfaro et al. v. Peru) ; freedom of movement
(see e.g. : Canese v. Paraguay ; Massacres de Ituango v. Colombia) ; political rights (see e.g. :
YATAMA v. Nicaragua) ; equality before law and positive discrimination (see e.g. : YATAMA v.
Nicaragua ; Case of the "Juvenile Reeducation Institute" v. Paraguay).
149
Case of the "Mapiripn Massacre" v. Colombia, 2005 Inter-Am. Ct. H.R. (ser. C) No 134 106
(September 15, 2006) : The Court has pointed out, as the European Court of Human Rights has too,
that human rights treaties are live instruments, whose interpretation must go hand in hand with
evolving times and current living conditions. This evolutive interpretation is consistent with the
general rules of interpretation set forth in Article 29 of the American Convention, as well those set
forth in the Vienna Convention on Treaty Law. (references omitted).
150
Advisory Opinion OC-2/82, The Effect of Reservations on the Entry into Force of the American
Convention on Human Rights, Inter-American Court of Human Rights, (ser. A) No 2 29-31
(September 24, 1982).
151
Ib. 34.
152
Advisory Opinion OC-6/86, The Word Laws' in Article 30 of the American Convention on
Human Rights, Inter-Am. Ct. H.R., (ser. A), No 6 19-21 (May 9, 1986).
153
See : Case Blake v. Guatemala, Inter-Am. Ct. H.R., (ser. C) No. 48 (January 22, 1999) (separate
Opinion of Judge Canado Trindade, esp. 33).
154
Case of the "Mapiripn Massacre" v. Colombia, 2005 Inter-Am. Ct. H.R. (ser. C) No 134, 106
(September 15, 2006) : () when interpreting the Convention it is always necessary to choose the
alternative that is most favorable to protection of the rights enshrined in said treaty, based on the
principle of the rule most favorable to the human being (references omitted). See also: Case of
Ricardo Canese v. Paraguay (ser. C) No. 111, 181 (August 31, 2004); Case of Herrera Ulloa. v.
Costa Rica (ser. C) No. 107, 184 (July 2, 2004); Case of Baena Ricardo et al v. Panama (ser. C) No
72 (February 2, 2001).
32
protection possible155. Furthermore, the Court takes into account relevant historical,
social, political, and cultural elements not only to find facts and adjudicate cases,
but also to interpret and shape human rights, assessing human rights abuses
through the lenses, for example, of the members of an indigenous community156.
49. The Courts jurisprudence, both advisory and contentious, emphasizes a certain
conception of international human rights law based on a truly universalistic
approach. As described by the former President and Judge of the Court, Antonio A.
Canado Trindade, the Court contributes to the construction of a new jus gentium
of the 21st century, guided by the general principles of law (including the
fundamental principles of equality and non-discrimination), characterized by the
broad protection of due process guarantees and judicial protection sensu lato,
strengthened by the recognition of jus cogens and by the effects of obligations erga
omnes, and founded on the respect of the rights inherent to the human beings157.
The Court seems to consider that international human rights law in all of its
manifestations, including the 1966 International Covenants, the European
Convention, the African Charter and all other human rights-related instruments,
forms a coherent corpus juris aiming at the protection of all human beings158. In its
first Advisory Opinion, the Court asserts the fundamental bonds between the
regional human rights system and the universal system established by the United
Nations 159. That jusnaturalist vision of international human rights law divorces
Advisory Opinion OC-5/85, Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Inter-Am. Ct.
H.R. (ser. A) 52 (Nov. 13, 1985).
156
See e.g. : Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser.
C) No 79 (August 31, 2001) ; Moiwana Village v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No 124
102 (June 15, 2005) ; Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser.
C) No. 125 (June 17, 2005) ; YATAMA v. Nicaragua, 2005 Inter-Am. Ct. H.R. (ser. C) No 127 (June
23, 2005).See the analysis by T. ANTKOWIAK, Moiwana Village v. Suriname : A Portal Intro Recent
Jurisprudential Developments of the Inter-American Court of Human Rights, 25 Berkeley J. Int'l L.
268 (2007).
157
Advisory Opinion OC-18/03, Juridical Condition and Rights of the Undocumented Migrants,
Inter-Am. Ct. H.R. (ser. A) No 18 (2003) (separate opinion A.A. Canado Trindade). Canado
Trindades idea of the new jus gentium in the context of the inter-American jurisprudence is
explained in most of his individual opinions that have been published in A.A. CANADO T RINDADE,
Derecho Internacional de los Derechos Humanos Esencia y Trascendencia (Votos en la Corte
Interamericana de Derechos Humanos, 1991-2006) (Porra/Universidad Iberoamericana, 2007).
Moreover, for the theory of the new jus gentium, see : A.A. CANADO TRINDADE, International Law
for Humankind : Towards a New Jus Gentium, General Course on Public International Law
(Collected Courses, Volume 316 (2005), Martinus Nijhoff Publishers 2006).
158
See: A.A. CANADO TRINDADE , Approximations and Convergences in the Case-Law of the
European and Inter-American Courts of Human Rights, in Le rayonnement international de la
jurisprudence de la Cour europenne des droits de lhomme (G. Cohen-Jonathan & J.-F. Flauss
Bruylant/Nemesis 2005) 101. A.A. CANADO TRINDADE, The Development of International Human
Rights Law by the Operation and the Case-Law of the European and Inter-American Courts of
Human Rights, 25 Human Rights Law Journal (2004) 157; A.A. CANADO TRINDADE, The InterAmerican Court of Human Rights at a Crossroads: Current Challenges and Its Emerging Case-Law
on the Eve of the New Century, in Protection des droits de l'homme: la perspective europenne
Mlanges la mmoire de Rolv Ryssdal (P. Mahoney et al. eds. C. Heymanns Verlag 2000) 167.
159
Advisory Opinion OC-1/82, Other treaties subject to the advisory jurisdiction of the Court (Art.
64 American Convention on Human Rights), Inter-Am. Ct. H.R. (ser. A) 89 (September 24, 1982).
155
33
from the traditional voluntarist theory of international law160 and characterizes the
emerging inter-American human rights law.
2.2. THE STATES GENERAL OBLIGATIONS AND THE ACCESS TO JUSTICE
50. The rationale of the Courts jurisprudence relies mainly on the broad
interpretation of states obligations. First, the Courts interpretation of states
general obligations to ensure and to protect (Article 1 (1)) the rights and liberties
set forth in the Convention has been very broad. In the Courts opinion, Article 1
(1) is essential in determining whether a violation of the human rights recognized
by the Convention can be imputed to a State Party. In effect, that article charges the
States Parties with the fundamental duty to respect and guarantee the rights
recognized in the Convention. Any impairment of those rights which can be
attributed under the rules of international law to the action or omission of any
public authority constitutes an act imputable to the State, which assumes
responsibility in the terms provided by the Convention161. This provision can be
seen as the pillar of the entire Convention. Its broad interpretation has been
decisive to determine the international responsibility of the states in all cases. For
example, in its cases regarding forced disappearances, the Court relied on that
broad interpretation of the general obligation of the states combined with
innovative mechanisms of demonstration and presumption162.
51. Second, the states obligation to adopt internal measures (Article 2) allowed
the Court to act as a sort of inter-American constitutional court, with the power to
rule that a states norm or practice violates the Convention, or that its national law
does not provide the means for individuals to enjoy the rights set forth by the
Convention, and therefore request that the state concerned amend its domestic
law163. Moreover, the Court judged that a rule per se can violate Article 2 of the
Convention, whether or not it has been applied in a specific case164.
See for a criticism of the Inter-American Courts methods of interpretation: G. NEUMAN, Import,
Export, and Regional Consent in the Inter-American Court of Human Rights, 19 Eur. J. Int'l L. 101
(2008).
161
Case Velsquez Rodriguez v. Honduras, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4 164 (July 29,
1988).
162
Id. Since these disappearances took place in the context of a systematic practice tolerated or
organized by the state and that the victims representatives were ill-equipped to demonstrate the facts,
the Court set up a test for adjudicating disappearances: first, the complainant must demonstrate that a
systematic practice of disappearance organized or tolerated by the state took place; second, the
complainant must prove that the individual case of disappearance took place in that context. The
Court may infer the international responsibility of the state from its failure to demonstrate either the
general practice or the individual case of disappearance. Moreover, in these cases, the Court would
presume the death of the victim to rule that the right to live as been violated and would presume that
the right to integrity of the victims family has been violated since the disappearance causes to the
relatives sufferance and psychological distress.
163
See e.g. : Case of Surez-Rosero v. Ecuador, 1997 Inter-Am. Ct. H.R. (ser. C) No 35 97-98
(November 12, 1997) (Ecuadorian Criminal Code) ; See, e.g., Raxcac-Reyes v. Guatemala, 2005
Inter-Am. Ct. H.R. (ser. C.) No. 133 89 (September 15, 2005); Mayagna (Sumo) Awas Tingni
Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79 138 (August 31, 2001); BaenaRicardo and Others v. Panama, 2001 Inter-Am. Ct. H.R. (ser. C) No. 72 180 (February 2, 2001).
164
See e.g. : Case Cantoral Benavides v. Peru, 2000 Inter-Am. Ct. H.R. (ser. C) No 69 176 (August
18, 2000) (Peruvian terrorism law).
160
34
52. Third, the states have the obligation to ensure that all victims of human rights
abuses (for rights guaranteed by the Convention or by domestic law) have access to
justice (Article 25)165. The denial of access to justice is a breach of the individuals
right to judicial remedy set forth by Article 25 of Convention interpreted in concert
with Article 8 (judicial guarantees)166. The Court interpreted the right to access to
justice particularly innovatively in its forced disappearance cases, granting the
victims families a right to know the truth about the status of their relative167.
53. The Courts adjudication process consists of determining whether a human
rights abuse is a breach of a states obligation and therefore imputable by the
Court. The Court has established that the international liability of the States,
within the framework of the American Convention, arises from the violation of the
general obligations, erga omnes in nature, to respect and enforce respect for
guarantee the protection standards and to ensure the effectiveness of the rights
enshrined therein, in all circumstances and in respect to all persons under their
jurisdiction, embodied in Articles 1(1) and 2 of said treaty 168. Moreover, the Court
considers that the states international responsibility may be aggravated when the
abuses were particularly egregious and when they took place in a context of serious
violations directly perpetrated by the states agents169.
2.2. THE REPARATION REGIME
54. Finally, with the use of a broad interpretation of Article 63(1) of the American
Convention that grants the Court with remedial powers, the Court has built a
reparation regime over the years in the context of its contentious jurisdiction170. The
reparation phase of the contentious case can almost be seen as a new trial. The
potential beneficiaries of remedial measures are not limited to the direct victims of
See e.g. : Case Cantos v. Argentine, 2002 Inter-Am. Ct. H.R. (ser. C) No 97 52 (November 28,
2002).
166
See e.g. : Case Mayagna (Sumo) Awas Tingni v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No
79 123-124 (August 31, 2001).
167
Case of Bmaca-Velsquez v. Guatemala, 2000 Inter-Am. Ct. H.R. (ser. C) No 70 197
(November 25, 2000). See T. ANTKOWIAK, Truth as Right and Remedy in International Human
Rights Experience, 23 Mich. J. Int'l L. 977 (2002).
168
Case of Balden-Garca v. Peru, 2006 Inter-Am. Ct. H.R. (ser. C) No 147 80 (April 26, 2006).
169
Case of Myrna Mack-Chang v. Guatemala, 2003 Inter-Am. Ct. H.R., (ser. C) No 101 139
(November 25, 2003) : () the State is responsible for the extra-legal execution of Myrna Mack
Chang committed through actions of its agents, carrying out orders issued by the high command of
the Presidential General Staff, which constitutes a violation of the right to life. This circumstance
was worsened because at the time of the facts there was in Guatemala a pattern of selective extralegal executions fostered by the State, which was directed against those individuals who were
considered internal enemies. Furthermore, since then and still today, there have not been effective
judicial mechanisms to investigate the human rights violations nor to punish those responsible, all of
which gives rise to an aggravated international responsibility of the respondent State. See also: Case
of the Gmez-Paquiyauri Brothers v. Peru 2004 Inter-Am. Ct. H.R. (ser. C) No 110 76 (July 8,
2004) (separate opinion A.A. Canado Trindade) ; Goibur Case v. Paraguay, 2006 Inter-Am. Ct.
H.R. (ser. C) No 153 (September 22, 2006). The inter-American theory of aggravated responsibility
remains however to be definied. See H. TIGROUDJA , La Cour interamricaine des droits de lhomme
au service de lhumanisation du droit international public. Propos autour des rcents arrts et avis,
Annuaire Franais de Droit International, 617 (2006).
170
See T. ANTKOWIAK, Remedial Approaches to Human Rights Violations : The Inter-American
Court of Human Rights and Beyond, 46 Colum. J. Transnat'l L. 351 (2008). See J. PASQUALUCCI,
supra note 36, 230.
165
35
human rights abuses, but may extend to their relatives if they have suffered harms
from the violation, and sometimes to the members of a whole community. The
damage resulting from violations that the Court may consider can be material
and/or moral 171, and parties may debate these issues before the Court. Finally, the
Court may order all sorts of remedial measures. The Court considers that
reparation for damage caused by a breach of an international obligation requires,
whenever possible, full restitution (restitutio in integrum), which consists of
reestablishing the previous situation. If that is not possible, the international court
must order that steps be taken to guarantee the rights infringed, redress the
consequences of the infringements, and determine payment of indemnification as
compensation for damage caused172. First, since the state must ensure the injured
party the enjoyment of the right or freedom violated, the Court may order cessation
or restitution measures such as the guarantee of a new trial for the victim173,
reinstatement of the victim in their former employment 174, release of a victim
illegally detained175, or expunging of criminal records176. Second, since the state
must to take appropriate measures to remedy the consequences of the violation and
to prevent further similar violations, the Court may order the state to amend its
laws 177, including its constitution178, or to adopt new laws179, nullify a sentence180,
investigate the abuses181, take or refrain to take action182, pay for future medical
See e.g. : Moiwana Village v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No 124 102 (June 15,
2005) (The Court takes into account the impossibility for the victims to have access to justice, their
humiliation, and their fear of spiritually-caused illnesses caused by the fact that various death
rituals have not been performed according to their tradition following the attacks of their village).
172
Barrios Altos (Chumbipuma Aguirre) et al. v. Peru, 2001 Inter-Am. Ct.H.R., (ser. C), No 87 25
(November 30, 2001).
173
See e.g.: Case of Fermn Ramrez v. Guatemala, 2005 Inter-Am. Ct. H.R. (ser. C), No 126 138(7)
(July 20, 2005) ; Case of Castillo-Petruzzi et al. v. Peru, 1999 Inter-Am. Ct. H.R. (ser. C), No 52 Res
13 (May 30, 1999).
174
See e.g.: Case of Baena-Ricardo et al. v. Panama, 2001 Inter-Am. Ct. H.R., (ser. C), No 72 203
(February 2, 2001) ; Case of Loayza-Tamayo v. Peru, 1998 Inter-Am. Ct. H.R. (ser. C), No 42 113
(November 27, 1998).
175
See e.g.: Case of Loayza-Tamayo v. Peru, 1997 Inter-Am. Ct. H.R. (ser. C), No 33 Res (September
17, 1997).
176
See e.g.: Case Acosta-Caldron v. Ecuador, 2005 Inter-Am. Ct. H.R. (ser. C), No 129 175(7) (June
24, 2005) ; Case of Surez-Rosero v. Ecuador, 1999 Inter-Am. Ct. H.R. (ser. C), No 44 113(1)
(January 20, 1999).
177
See e.g. Case of Castillo-Petruzzi et al. v. Peru, 1999 Inter-Am. Ct. H.R. (ser. C), No 52 222 (May
30, 1999).
178
See e.g. Case of The Last Temptation of Christ (Olmedo-Bustos et al.), 2001 Inter-Am. Ct. H.R.
(ser. C), No 73 97-98 (February 5, 2001).
179
See e.g.: Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser.
C) No 79 164 (August 31, 2001) ; Case of the Street Children (Villagrn-Morales et al.) v.
Guatemala, 2001 Inter-Am. Ct. H.R. (ser. C) No 77 98 (May 26, 2001).
180
See e.g. Hilaire, Constantine & Benjamin v. Trinidad and Tobago, 2001 Inter-Am. Ct. H.R. (ser.
C) No 94 223(11) (June 21, 2000).
181
See e.g.: Case of the Ituango Massacres v. Colombia, 2006 Inter-Am. Ct. H.R. (ser. C) No 148
402 (July 1, 2006); Case of the 19 Tradesmen v. Colombia, 2004 Inter-Am. Ct. H.R. (ser. C) No 109
256 (July 5, 2004).
182
See e.g.: Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser.
C) No 79 164 (August 31, 2001) (demarcation of territory) ; Hilaire, Constantine & Benjamin v.
Trinidad and Tobago, 2001 Inter-Am. Ct. H.R. (ser. C) No 94 223(11) (June 21, 2000) (refrain from
executing the victims condemned to the death penalty).
171
36
See e.g. Case of Molina-Theissen v. Guatemala, 2004 Inter-Am. Ct. H.R. (ser. C) No 108 71 (July
3, 2004).
184
See e.g.: Case of the Ituango Massacres v. Colombia, 2006 Inter-Am. Ct. H.R. (ser. C) No 148
403 (July 1, 2006) ; Case of the Juvenile Reeducation Institute v. Paraguay, 2004 Inter-Am. Ct.
H.R. (ser. C) N112 318-19 (September 2, 2004) ; Case of the 19 Tradesmen v. Colombia, 2004
Inter-Am. Ct. H.R. (ser. C) No 109 275 (July 5, 2004).
185
See e.g.: Case of Montero-Aranguren et al. (Detention Center of Catia) v. Venezuela, 2006 InterAm. Ct. H.R. (ser. C) N150 145-6 (July 5, 2006) (regarding prison conditions) ; Case of PalamaraIribarne v. Chile, 2006 Inter-Am. Ct. H.R. (ser. C) N135 256-7 (November 22, 2005) (regarding
military jurisdiction).
186
See e.g.: Case of Tibi v. Ecuador, 2004 Inter-Am. Ct. H.R. (ser C) No 114 236-237 (September
7, 2004) ; Case of the Juvenile Reeducation Institute v. Paraguay, 2004 Inter-Am. Ct HR, (ser. C) No
112, 290 (September 2, 2004); Case of Myrna Mack-Chang v. Guatemala, 2003 Inter-Am. Ct. H.R.
(ser. C) No 101 253 (November 25, 2003). See J. PASQUALUCCI, supra note 36, 254.
187
See e.g.: Case of Myrna Mack-Chang v. Guatemala, 2003 Inter-Am. Ct. H.R. (ser. C) No 101 278
(November 25, 2003) ; Case Cantoral Benavides v. Peru, 2001 Inter-Am. Ct H.R. (ser. C) No 88, 81
(December 3, 2001).
188
See e.g.: Moiwana Village v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No 124 216 (June 15,
2005).
189
See e.g.: Case of Myrna Mack-Chang v. Guatemala, 2003 Inter-Am. Ct. H.R. (ser. C) No 101 285
(November 25, 2003).
190
See e.g. Id. 286.
191
See e.g. Case of the Street Children (Villagrn-Morales et al.) v. Guatemala, 2001 Inter-Am. Ct.
H.R. (ser. C) No 77 103 (May 26, 2001).
192
See e.g.: Case of the Pueblo Bello Massacre v. Colombia, 2006 Inter-Am. Ct HR, (ser. C) No 140
(January 31, 2006); Case of the Mapiripn Massacre v. Colombia, 2005 Inter-Am. Ct HR, (ser. C)
No 134 (September 15, 2005).
183
37