The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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InterAmerican Court of, and Commission on, Human Rights

The American Convention on Human Rights (ACHR) was adopted on 22 November 1969 by the Organization of American States (OAS) and entered into force on 18 July 1978. The Convention formalizes the Inter-American system of human rights protection, resting on the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, per Article 33 of the ACHR. In general, cases are first brought before the Commission, which may then decide to refer them to the Court.

The Commission has competence over all States Parties to the ACHR: twenty-five States have ratified the Convention, which means all the OAS Member States. Trinidad and Tobago and Venezuela denounced the Convention, respectively in 1998 and 2012, leaving twenty-three active parties.

The Court only has jurisdiction over the States party to the Convention that have expressly accepted its jurisdiction—currently twenty-two of them (see the list of States at the end of this entry).

InterAmerican Commission on Human Rights

The Commission is based in Washington, DC. It is composed of seven independent members, elected by the OAS General Assembly from a list of candidates proposed by the Member States.

Their terms last four years, and they can be reelected once. The Commission holds at least three sessions a year, usually in Washington, but they can be held elsewhere. It submits annual activity reports to the OAS General Assembly.

The Commission was actually established prior to the 1969 ACHR. It was created in 1959 on the basis of the American Declaration of the Rights and Duties of Man, adopted in Bogotá, Colombia, in 1948. However, the ACHR entrusts it with a mission to defend and promote human rights in the Americas (Arts. 34–51 of the ACHR).

Its functions of protection are based on its mandate to receive, analyze, and investigate “petitions” from NGOs and individuals, or “communications” from States Parties, concerning human rights violations by one of the States Parties (Arts. 44, 45).

Admissibility

For communications and petitions to be admissible, there are requirements, which are established by Article 46 of the ACHR: they must not be anonymous; the subject of the petition or communication must not be pending before another international body; domestic legal remedies must have been pursued and exhausted; and the petition or communication must be lodged within six months of the date the final judgment from the local remedy has been pronounced.

The Commission’s competence to examine individual and NGO petitions is automatic and therefore mandatory for all States party to the American Convention on Human Rights (ACHR). This is an important difference from most other international human rights mechanisms, which make it optional for States to accept individual communications. These petitions may be filed by an individual or group of persons or an NGO.

The Commission’s jurisdiction over State communications, however, is optional. This means that such communications are only admissible if both the State alleging the violations and the State accused of the violations have declared that they recognize the Commission’s competence to receive such communications (Art. 45 of ACHR).

The last two requirements are not applicable if “the domestic legislation of the State concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; the party alleging violation of his [or her] rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or there has been unwarranted delay in rendering a final judgment under the aforementioned remedies” (Art. 46.2 of ACHR).

Any individual, group of individuals, or NGO can file a petition or complaint. States can do so only if both they and the accused State have expressly recognized the Commission’s competence to receive such communications (Art. 45 of ACHR).

Procedure

The Commission’s purpose is not to issue a judgment or sentence, since it is not a judicial organ. Instead, it seeks to reach friendly settlements in light of written and oral information transmitted, on the Commission’s request, by the State concerned by the complaints. In “serious and urgent cases,” the Commission may conduct on-site investigations, with the prior consent of the State in whose territory a violation was allegedly committed. In other situations, on-site visits to countries remain an instrument that the Commission can use to engage in more in-depth analysis of the situation, but they are the result of prior examination of the matter (Art. 48 of ACHR).

If a friendly settlement is reached, the Commission draws up a report, transmits it to the petitioner and to all States party to the Convention, and submits it for publication to the OAS Secretary-General, including a brief statement of the facts and the solution reached (Art. 49).

If no settlement is reached, the Commission draws up a report setting forth the facts and its conclusions, including any proposals and recommendations it sees as appropriate. This report is not public. If, within three months, the case has not been settled or submitted to the Inter-American Court of Human Rights by the Commission or one of the parties to the dispute, the Commission may continue its examination and investigation of the case. In such cases, it prepares a second report, which also generally contains conclusions and recommendations, and again grants the State a period of time to resolve the situation and comply with the Commission’s recommendations. At the end of this second period of time, the Commission decides whether the State has taken the appropriate measures and whether to publish its report.

Instead of preparing a second report, the Commission may decide to take the case to the Inter-American Court, which it must do within three months of the date at which it transmits its initial report to the State concerned. The Commission appears before the Court for all cases.

The States that have currently recognized the Commission’s competence to receive State communications are Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Jamaica, Nicaragua, Peru, and Uruguay.

Other Functions of the Commission

Under its mandate to “promote respect for and defense of human rights,” the Commission also

  • observes the general human rights situation in the Member States and publishes special reports when it considers it appropriate;
  • promotes public awareness regarding human rights in the Americas, including publishing studies on subjects such as the independence of the judiciary, activities of irregular armed groups, and human rights conditions of children, women, and indigenous peoples;
  • recommends to the OAS Member States that they adopt certain measures that would contribute to human rights protection;
  • responds to States Parties’ inquiries on matters related to human rights;
  • requests that the Court order “provisional measures” in urgent cases that involve danger to persons, even where a case has not yet been submitted to the Court;
  • requests advisory opinions from the Court on the interpretation of the ACHR (Art. 41).

InterAmerican Court of Human Rights

The Court, based in San José, Costa Rica, is the judicial organ of the Inter-American system of human rights protection. It was established by the 1969 American Convention on Human Rights but was actually set up in 1979, after the Convention entered into force. It is composed of seven independent judges, elected to six-year terms (they can be reelected once) by the States party to the American Convention on Human Rights.

The judges hold two regular sessions per year, but they may also meet in special sessions. They elect their president and vice president to two-year terms (they can also be reelected once). They appoint their secretary, whose staff is appointed by the Secretary-General of the OAS, in consultation with the secretary. The Court adopted its Rules of Procedure in 1980 and last revised them in November 2009.

Advisory and Contentious Jurisdiction

At the request of OAS Member States, the Court is competent to issue advisory opinions regarding the interpretation of the ACHR and other treaties concerning the protection of human rights in the Americas and any question relating to the jurisdiction of OAS organs. In particular, it may give opinions on the compatibility of domestic laws with these human rights instruments to requesting States.

It also has contentious jurisdiction over alleged violations of the ACHR, and it monitors States’ application of the Convention. However, the Court’s jurisdiction is not automatically binding on States, except for those that have expressly accepted its jurisdiction (see the end of this section).

The Court’s jurisdiction over cases of violations is optional for States party to the ACHR (Art. 62 of ACHR). This means that States can either accept the Court’s jurisdiction as binding, ipso facto (as eighteen States have now done, under Art. 62.1 of the ACHR), or recognize its competence for a specified period of time or for specific cases, on the condition of reciprocity (as per Art. 62.2. of the ACHR).

Only the Commission and States party to the ACHR can refer cases to the Court. Individuals or NGOs can only have access to the Court by lodging petitions with the Commission and waiting for the Commission’s procedure to be completed.

The complaints that the Commission refers to the Court are those for which the Commission found no friendly settlement and for which the States in question accept the Court’s jurisdiction. The Commission’s screening of cases is actually part of the admissibility test of a case.

The judgments rendered by the Inter-American Court of Human Rights can include compensation for the injured party. International human rights mechanisms rarely provide such a possibility.

Judgments

If the Court finds that there has been a violation of a right or freedom protected by the ACHR, it rules that “the injured party be ensured the enjoyment” of the right or freedom that was violated.

It may also rule that the measure or situation that constituted or resulted in the breach be remedied and that fair compensation be paid to the injured party (Art. 63.1 of ACHR). The Court’s judgments are final and not subject to appeal. The OAS General Assembly is responsible for monitoring the implementation of these rulings (Art. 67).

In extremely serious and urgent cases, the Court may adopt provisional measures to protect individuals in matters under its consideration. It may also do so on request of the Commission for cases that have not yet been submitted to it (Art. 63.2).

The Court submits an annual report to the General Assembly of the OAS. In particular, it must specify the cases in which a State has not complied with the Court’s judgments and make any pertinent recommendations (Art. 65). The OAS may choose to signal which States failed to comply with these decisions.

The States that have accepted the Court’s contentious jurisdiction ipso facto are Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela.

Human rightsIndividual recourse

List of States Party to International Humanitarian Law and Human Rights Conventions (no. 11)

Inter-American Commission on Human Rights

Organization of American States (OAS)

1889 F St., NW

Washington, DC 20006 USA

Tel.: (1) 202 458-6002

Fax: (1) 202 458-3992

Secretariat of the Inter-American Court of Human Rights

PO Box 6906-1000

San José, Costa Rica

Tel.: (506) 234-0581

Fax: (506) 234-0584

@ Organization of American States: http:// www.oas.org

Inter-American Commission of Human Rights: http:// www.cidh.oas.org

For Additional Information: Shelton, Dinah. “The Inter-American Human Rights System.” In Guide to International Human Rights Practice , edited by Hurst Hannum, 127–41. Ardsley, NY: Transnational, 2004.

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