Inter-American Court of Human Rights: A Regional Implementation Mechanism of HRs

The Inter-American Court of Human is primarily concern with the interpretation and application of the provision of the Convention.  The world has seen the gradual evolution of regional human rights arrangements by the due interest of the states of different region. The creation of numerous regional instruments addresses concerns of particular importance in the regional context. But, whether it’s an international or regional organization, the main problem with Human rights is, here “the protector is the prime violator.” Ever since the advent of political society some hundreds of thousands of years ago, states have carelessly violated Human Rights for one reason or another. In most countries even today also, Human Rights violation is the norm rather than the exception, because the scope of the domestic court is confined to the law enacted by the competent authority of the states. Furthermore, domestic court gives priority to the municipal law over international law, when conflict arises between them, and more or less these organs are influenced by the state (the violator). So the demand of the day is the establishment of effective, independent and impartial implementation mechanism at international level to oversee the compliance of the state parties.

In 1969, the American Convention on Human rights was adopted by the OAS member States. The American Convention entered into force in 1978. The Convention enunciates a series of rights creates the Inter-American court of Human Rights and defines the functions and procedures of both the Inter-American commission and Commission and the Inter-American Court. The inter-American system is a two tier institutional structure with the commission acting like a court of first instance to which all complain must initially be taken and the court more or less like an appeal court. The Inter-American Court on Human is primarily concern with the interpretation and application of the provision of the Convention. In pursuant to this, time to time the court has made a lot of modification in its rule and procedure to provide remedies to the victims. In the contemporary world the court enjoy the broadest advisory jurisdiction and is also empowered to provide provisional measures to the victims and most notably it can monitor the compliance of its judgement by the state parties.

EVOLUTION OF THE COURT

The Inter-American Court of Human Rights (hereinafter “the Court or “the Inter-American Court”)  was created by the entry into force of the American Convention on Human Rights or the “Pact of San José, Costa Rica” (hereinafter “the Convention” or “the American Convention”) on July 18, 1978, when the eleventh instrument of ratification by a Member State of the Organization of American States (hereinafter “the OAS”) was deposited. The Convention was adopted at the Inter-American Specialized Conference on Human Rights, which was held in San José, Costa Rica, from November 7 to 22, 1969.The Inter-American Court of Human Rights was created in 1979[1] as an organ of the Organization of American States (OAS).  Its creation came about through the entry into force of the Inter-American Convention on Human Rights on July 18, 1978.[2] Irrespective of the number of states that recognize its jurisdiction, the Inter-American Court is formally an organ of the American Convention and not of the OAS.  The treaty is open to all OAS member states, although to date it has not been ratified by Canada or several of the English-Speaking Caribbean nations; the United States signed it in 1977 but has not proceeded with ratification. Out of 35 OAS member states 25 have ratified the convention, while two have denounce it subsequently, thus now 23 parties have recognised the jurisdiction of the Court[3].(till 31 march 2012)

COMPOSITION OF THE COURT:-

Under the terms of the Statute of the Court the Court is an autonomous judicial institution with its seat in San Jose, Costa Rica. It is composed of seven part-time, independent judges nominated in their individual capacity by the States parties to the Convention and elected by secret ballot for a renewable six-year term by an absolute majority vote in the OAS General Assembly. The Court’s elected judges must be jurists of the ‘highest moral authority’, of recognized competence in the field of human rights, and possess the qualifications required for the exercise of the highest judicial functions in conformity with the law of the State of which they are nationals or that proposes them as candidates.”[4]. Each state party to the convention may propose up to three candidates, nationals of the state that proposes them or of any other OAS member states[5]. The judges are elected by the States Parties by secret ballot and by the vote of an absolute majority during the OAS General Assembly. No two judges may be nationals of the same state. Judges shall be elected for a term of six years and may be re-elected only once.[6] The American Convention also permits states to appoint ad hoc judges in inter-state cases in which no judge of either nationality is sitting. 

JURISDICTION Of THE COURT :-

The Convention confers contentious and advisory functions on the Court. The first function involves the power to decide cases submitted by the Inter-American Commission or a State Party alleging that one of the States Parties has violated the Convention. The second function involves the prerogative of OAS Member States to request the Court to interpret the Convention or “other treaties concerning the protection of human rights in the American States.

1. Contentious Jurisdiction:-

The contentious jurisdiction refers to its power to decide cases. The cases are generally based on alleged violations of the American Convention provisions. The IAC may hear a case only after all proceeding before the commission are exhausted[7]. Furthermore, the cases may stem from individual petitions or interstate petitions. Till now the only inter-state petition on record was filed by Nicaragua[8]against Costa Rica before the commission in 2006. The case never reached to the COURT, because it was ultimately declared inadmissible for failure to exhaust domestic remedies. For the IAC to assert jurisdiction over a claim, certain requirements with response to person, subject matter, time and place must be satisfied.

(i) Personal Jurisdiction or Jurisdiction ratione persone:-

The personal jurisdiction of the   Court’s involves the determination of two issues .i.e. a) Who is authorised to submit a case, and b) Against whom the case may be submitted.

Unlike the commission, which may receive petitions submitted by individuals, groups of persons and NGOs,[9] Art.61 (1) of the ACHR restrict the court to hear cases referred by the commission or by state Parties to the American Convention.

The Court’s ability to hear a case requires that the defendant state and the American Convention and recognises, unilateral declaration, the Court’s contentious jurisdiction. Recognition is optional and may be effectuated at the time of ratification or of accession to the American Convention, or at any subsequent time. Art.62 (2) of the ACHR authorises the states to recognise jurisdiction unconditionally or “under the condition of reciprocity”. Furthermore, in the Ivcher Bronstein[10] case, the Court held that, states may restrict their recognition of the Court’s contentious jurisdiction for a specific period of time and/or for specific cases. Moreover, once a state unconditionally recognises the Court’s contentious jurisdiction it may not withdraw its declaration of acceptance.[11] Thus if a state wants to be released from the legal obligation generated by the recognition of contentious jurisdiction of the Court’s, it has to denounce the American Convention.[12]

(ii)  SUBJECT MATTER JURISDICTION:-

The American convention establishes that the subject matter jurisdiction or jurisdiction ratione materiae of the Court shall comprise all cases concerning the interpretation and application of the provisions of the American convention[13].   In  Las Palmeras v. Colombia,[14]  the Court held that its contentious jurisdiction is limited to finding  violation of the American Convention and not to other rules of international law, such as international humanitarian law. However it can exercise its jurisdiction to find violations of other inter- American system treaties which expressly grant jurisdiction to supervise compliance with state’s obligations.

(iii) JURISDICTION RATIONE TEMPORIES:

This jurisdiction of the Court particularly relates to the cases in which the violation of American Convention has occurred prior to a state’s recognition of its contentious jurisdiction. The Court has consistently declared that, it recognised the well known international principle of non-retroactivity of treaties and it can’t here case which has occurred before the recognition of its jurisdiction. However, the only exception to the principle of non-retroactivity of treaties, as recognised by the Court, is the so called ‘permanent or continuous violation’. It means a situation originate prior to the recognition of the Court’s jurisdiction by the state party and continue to exist after the recognition also. The Court has observed that[15]–continuous violation means the denial of justice resulting from the lack of an effective investigation of a massacre; the force and continuous displacement of victims from their traditional lands; and the arbitrary deprivation of nationality.

2. Advisory Jurisdiction:

The advisory jurisdiction conferred on the court is unique in contemporary international law. The advisory jurisdiction of the IACtHR is governed by the Art.64 of ACHR and it’s the broadest of all existing international tribunal. Member states of the OAS –even those that have not yet ratified the American convention –and some OAS organs; including the commission, may submit request for advisory opinion. State may request advisory opinions on the interpretation of the American convention and “other treaties concerning the protection of human rights in the American states” as well as on the compatibility of any domestic laws with the international instrument.[16] The OAS bodies, in contrast, may only request interpretation of the American convention and other international instrument.

The court has interpreted the term, “Other treaties concerning the protection of human rights in American states”- to encompass all human right treaties ratified by one or more of the OAS’s members, even if non-OAS members are parties as well.[17] The IACtHR has further concluded that it has the authority to interpret a human right provision in a treaty whose main purpose is not to protect such rights.[18]

3.Provisional Measures:

The ACHR is the only international human rights treaty to provide for judicially enforceable interim or provisional measures. The court’s authority is governed by Art.63 (2) of the ACHR. Provisional measures can be requested in relation to a case pending before the Court or a petition that is not yet submitted to its cognizance. In the latter category of cases, the request for the provisional measures can come only from the commission. According to Art.26 of the rules and procedure[19] at any stage of the proceeding, it can act on its own motion or on the request of the parties (the commission or the state party) to the case. Furthermore, in contentious cases already submitted to the court, the victim or their representative may present a request for the provisional measures in relation to cases directly to the court. The purpose of the Inter American Court’s provisional measures is to protect the victims against potential human rights violations, particularly when there is a risk of irreparable harm.[20]

4. ROLE OF INDIVIDUAL IN THE COURT:

The ACHR does not explicitly establish a role for individuals in Court proceedings. The ACHR has no provisions that give individual the authority either to submit a case or to participate independently before the Court. Initially, the commission appointed attorneys of the victim’s relatives as its advisor and the advisor examined and cross-examined the witness and presented their final arguments jointly with the commission’s attorneys. However, after the modification of the IACHR and the Court’s rule and procedure in 2001 and (now also in 2009), the victims and their representatives can participate in the decision on, whether the Commission should submit a case to the Court or not.[21] Once the case is submitted to the Court, the claimants are granted standing to autonomously present their request, arguments and evidence throughout the Court’s proceedings.[22]

However, the Court’s rules and procedure are silent on whether petitioner may claim additional facts and rights violations to those stipulated in the commission’s or state’s   petition. In Five pensioners v. Peru[23]  the court held that petitioners could not allege facts that were different from those claimed by the commission, unless these were supervening facts. However the petitioner may invoke the violation of additional rights to those asserted by the commission, because they are entitled to all of the rights enshrined in the ACHR and to not admit it would be an undue restriction of their status as subjects of International human rights law.[24]  In addition, the IACHR procedures authorise petitioners to file request for provisional measures in cases that are being heard by the Court.[25]

5. THE SCOPE OF REPARATION GRANTED BY THE COURT:-

The ACHR authorizes the Court to order state reparations to the victim, when it arrives at a decision that there has been a violation of the rights or freedoms recognised by the Convention[26]. The convention’s broad provision on reparations allows the court to specify innovative form of reparations in attempt to make full restitution to the victims. Reparations often include financial compensation, although money alone could never compensate for death or injury to the victim. States have complied with approximately 80% of the financial reparation ordered by the court.[27]  The court can “also order that the injured party be ensured the enjoyment of his right or freedom that was violated”. Pursuant to this authority, the court, the court ordered Peru to release Maria Elena Loayza Tamayo, a university professor who had been wrongfully imprisoned in Peru for several years.[28] Peru complied with the court’s order and released the prisoner.[29]

The convention also authorises the court to rule that the consequence of the measures or situation thet constituted the breach be remedied. In accordance with this provision, the court may mandate that the state amend, adopt or repeal domestic legislation so as to comply with obligations the state voluntarily assumed on becoming a party to the American convention. Costa Rica amended its code of criminal procedure to permit the challenge and review of both legal and factual findings in lower court criminal conviction in response to the inter American Court’s reparation order in Herrera-Ulloa v. Costa Rica.[30] Likewise, Peru complied with the Court’s judgment by amending its anti-terrorism and treason laws to conform to the American Convention followings the court’s judgments in the Loayza Tamayo and Castillo Petruzzi cases.[31]   Except pecuniary and non-pecuniary damages the Court also awarded measures of reparation for different purpose, like vindicating the memory of the victims, restoring their dignity, transmitting a message of official condemnation for the human rights violations, and securing commitment from authorities that the violations will not occur again.

COMPLIANCE WITH THE JUDGMENTS OF THE COURT:-

Compliance with the Court’s judgment is given under Art.67 and Art.68 of the American Convention. Art. 67 provides that judgments of the Court are final and not subject to appeal.  Art. 68 obligate the states parties to comply with the Court’s judgment in any case to which they are parties. The Court in the case of Bulacio v. Argentina[32], said that the compliance with the judgment of Court is based on the principle of  Pacta sunt servanda , thus states must undertake their  international obligations in good faith.

Initially the OAS General Assembly as per Art.65 of ACHR was the only organs authorise to monitor states. Court had no specific authority under the American Convention or the Court’s Statute and Rules to supervise compliance with its judgment or Monitoring procedure. But after the modification of the Rules and procedure of the Court in 2009[33], now the court receives the report regarding the compliance of its judgement by the state parties and may also require information from other sources. Furthermore if the court deems fit then it may convene the parties to a hearing in order to monitor compliance with its decisions.   

CONCLUSION:

Normally, the question that regularly arises with regard to international adjudicating bodies is whether its decisions are enforceable and if so, in what sense. Not being a domestic court of law, the inter-American court suffers from the same problems similar organs suffer under international law. Usually, an international court lacks the kinds of tools that its domestic counterparts have to enforce its decision. Nevertheless, the court through recent development in its rule and procedure has acquired the power to monitor the compliance of its decision by the states parties. Furthermore, the court has provided too many interim measures to safe the victim from gross violation of human rights and through amendment in its own rule and procedure it has given the individual a right to autonomously present their request, arguments and evidence throughout the Court’s proceedings. Since its establishment, the court has undergone, profound changes conceptually and institutionally, most of which are designed to make it one of the oldest system in the world.

Human rights protection is not a fairly straight forward subject, because by their very nature, human rights are easier to violate than to uphold. In spite of the difficulties of the shortage of fund, the court is smoothly functioning and it’s enlarging its jurisdiction to secure the right of the individual from the states.


[1] Statute of the Inter-American Court on Human Rights, art. 1, Oct. 1979, O.A.S. Res. 448 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80, vol. 1, at 98, entered into force Jan. 1, 1989

[2]  See Chapter VIII American Convention on Human Rights, Sep. 22, 1969, OAS T.S. No. 36.

[3] Available at http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm at 31 March, 2013

[4] Art.52 of the ACHR

[5] Art.53(2) of the ACHR

[6] Art.54 of the ACHR

[7] Art.62 of ACHR

[8] IACHR, Ncaragua v. Costa Rica, Annual report 2009,  Report No.11/07,Inter-state case 01/06,march 8,2007, OEA/Ser/L/V/11.BODoc.1,December 29,2007

[9] Art44 of IACHR

[10] IACtHR, Ivcher-Bronstein v. Peru, judgement of September 24, 1999, Series C No.54 [36]

[11] Ibid. [39]

[12] Id.[40]

[13] ACHR Art.62(3)

[14] IACtHR, Las Palmeras v. Colombia, Judgment of  February 4, 2000, Series C No.67 [32]

[15] IACtHR, Moiwana Village v. Suriname judgment of June 15, 2005, Series C No.118[65]

[16] Art.64 of ACHR

[17] Advisory opinion OC-1/82 of September 24,1982,Series A NO.1[48]

[18] Advisory opinion OC-16/99 of October 1,1999,Series A NO.16[76]

[19] Basic documents pertaining to  Human rights in the Inter-American system, OAS doc. OEA/Ser. L. V/II.82,doc.6,rev.1(1992),p.125

[20] IACtHR, matter of Mendoza prisons(Argentina) Resolution of  November 22,2004,Series E No.5 ’considering’ [4-5]

[21] IACHR Rules of procedure, Art.43 , available at  Basic documents< www.oas.org/en/iachr/mandate/basic_documents.asp> at 31 march 2013

[22] IACtHR Rules of procedure, Art.27 Inter-American Court on Human Rights < http://www.corteidh.or.cr/reglamento_eng.cfm > at  31 March 2013

[23] Judgment of February 28, 2003 series no.98

[24] Ibid.[155]

[25] IACtHR, Rules of procedure, Art.25(3)

[26] ACHR Art.63 (1)

[27] 2008 Annual Report, IACtHR [online], Available from: http://www.corteidh.or.cr/docs/informes/eng2008.pdf at 73

[28] Loayza Tamayo v. Peru, IACtHR Series C, No.33 (17 September 1997).

[29] Chicago Tribune, 17  October 1997, Section 1, p. 28.

[30] Herrera-Ulloa v. Costa Rica, IACtHR Series C, No. 107 (2 July 2004).

[31] Loayza Tamayo v. Peru(Reparations) IACtHR, 27 November 1998,  Series C, No.42, operative para.5; Castillo Petruzzi et al. V. Peru (merits), IACtHR, 27 May 1999, Series. C, NOo.52,operative para.14

[32] IACtHR, Bulacio v. Argentina, compliance, Order of November 17,2004 

[33] Approved by the Court during its XLIX Ordinary Period of Sessions, held from November 16 to 25, 2000,1 and partially amended by the Court during its LXXXII

References:

  • Encyclopedia of Human Rights (First Edition ed.). (1991). Taylor & Francis.
  • Hansungule, M. (2001). Protection of human rights under the Inter-American system: an outsider’s reflection. In J. G. G. Alfredsson, International human rights monitoring mechanisms : essays in honour of Jakob Th. Möller (pp. p. 679-705). THE HAGUE: MARTINUS NIJHOFF PUBLISHERS.
  • Mashood A. Baderin, M. S. (Ed.). (November 2010). International Human Rights Law: Six Decades After the UDHR and Beyond.
  • Sarah Joseph, A. M. (2010). Research Handbook on International Human Rights Law. Massachuttses,USA: Edward Elgar Publishing.
  • Smith, R. K. (2010). Texts and Materials on International Human Rights (second edition ed.). Abingdon, Oxon: Routledge-Cavendish.
  • WARNER, J. D. (2007). Reaching Beyond the State: Judicial Independence,the Inter-American Court of Human Rights and Accountability in Guatemala. Journal of Human Rights , 233–255.
  • 2008 Annual Report, IACtHR [online], Available from: HYPERLINK “http://www.corteidh.or.cr/docs/informes/eng2008.pdf” http://www.corteidh.or.cr/docs/informes/eng2008.pdf at 73
  • Rules of procedure, Inter-American Court on Human Rights < HYPERLINK “http://www.corteidh.or.cr/reglamento_eng.cfm” http://www.corteidh.or.cr/reglamento_eng.cfm >
  • Rules of procedure, Inter-American commission on Human Rights, available at Basic documents< www.oas.org/en/iachr/mandate/basic_documents.asp>
  • Statute of the Inter-American Court on Human Rights, art. 1, Oct. 1979, O.A.S. Res. 448 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80, vol. 1, at 98.

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