The Inter-American System of Human Rights: A Research Guide

Cecilia Cristina Naddeo is a JSD (Doctor of the Science of the Law) candidate at Stanford Law School. She is currently a Visiting Researcher at Harvard Law School and a Teaching Fellow at the Harvard’s Faculty of Arts and Sciences, Department of Government.  She obtained her LLB/JD from the University of Buenos Aires, School of Law, with honors in 2004 and her JSM (Master of the Science of the Law) from Stanford Law School in 2007.  Prior to her doctoral studies, she worked as a Legal Officer at the Supreme Court of the City of Buenos Aires, Argentina, as an Intern and Visiting Professional at the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, respectively, and as a Justice Specialist for the Danish International Development Agency (DANIDA) in Bolivia. 

Introduction

The objective of this guide is to provide the researcher with a brief understanding of the historical development of the Inter-American system of human rights and of its resulting complexity. It is not purported to comment extensively on the Inter-American case law; rather it discusses the most salient institutional features of the system and it then directs the reader to a variety of sources on the system’s law in action.

The guide summarizes the events and debates that led to the adoption of the American Declaration of the Rights and Duties of Man by the Organization of American States (OAS) in 1948 and to the negotiation and subsequent entry into force of the American Convention on Human Rights in 1978. It then introduces the reader to a brief discussion of the content of less-known regional human rights treaties associated to the American Convention.

In turn, the guide discusses the composition, competence as well as selected provisions of the rules of procedure of the two monitoring bodies of the Inter-American system of human rights: the Inter-American Commission on Human Rights, a principal organ of the OAS, whose headquarters are in Washington D.C., U.S.A., and the Inter-American Court of Human Rights, created by the American Convention and whose headquarters are in San Jose, Costa Rica. The guide also offers a glimpse into the activities performed and the case law delivered by both the Commission and the Court in 2009 through a summary of their latest Annual Reports. Finally, in the spirit of the Globalex project, the guide directs the reader to additional sources of information.

1. Institutional and Normative Preliminary Points

While the Inter-American system of human rights is in force throughout the 35 member states of the OAS, different levels of commitment toward the common goal of promoting and protecting human rights can be observed in the region. Such a differentiation has been made possible thanks to the dual institutional structure of the Inter-American system of human rights: one sub-system having evolved from the adoption of the Charter of the OAS and the other created by the entry into force of the American Convention of Human Rights.[1]

The first sub-system encompasses those OAS member states that remain subject to the law of the American Declaration of the Rights and Duties of Man vis-à-vis the OAS Charter, as well as to the recommendations issued by the Inter-American Commission on Human Rights under the American Declaration. As of 2010, eleven OAS member states comprise this category: Antigua and Barbuda, The Bahamas, Belize, Canada, Cuba, [2] Guyana, Saint Lucia, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Trinidad and Tobago [3] and the United States of America.

The second sub-system comprises OAS member states that are parties to the American Convention on Human Rights and have also accepted the Inter-American Court’s contentious jurisdiction. These states are subject to the law of the binding judgments issued by the Inter-American Court in cases referred to it by the Inter-American Commission and, concurrently, to the law of the Inter-American Commission’s resolutions and recommendations. States belonging to the second sub-system are committed to honor both the American Declaration and the American Convention. As of 2010, 21 OAS member states belong to this category: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras,[4] Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay and Venezuela.

Finally, adding a layer of complexity to this institutional duality, there are three OAS member states that are parties to the American Convention but have not yet accepted the contentious jurisdiction of the Inter-American Court. Thus, Dominica, Grenada and Jamaica [5] are subject to the law of the Inter-American Commission’s resolutions with respect to both the American Declaration and the American Convention.

As a result of this institutional multiplicity, the Inter-American system of human rights is governed by fluid interactions between soft and hard [6] regional law, both primary and secondary. [7] Primary soft law is arguably represented by the content of the American Declaration of the Rights and Duties of Man, whereas primary hard law encompasses the provisions contained primarily by the American Convention of Human Rights, its Optional Protocols and other topically arranged Inter-American human rights treaties. In turn, secondary soft law allegedly [8] refers to the recommendations issued by the Inter-American Commission, whereas secondary hard law comprises the judgments and advisory opinions rendered by the Inter-American Court.

2. Primary Law: Instruments

2.1. American Declaration of the Rights and Duties of Man

The Inter-American system of human rights was born at the same time that the OAS began as a political organization. [9] One of the paramount principles of the OAS has since been the respect of “the fundamental rights of the individual without distinction with respect to race, nationality, creed or sex.” [10] The Charter of the OAS was signed on April 30, 1948 at the Ninth International Conference of American States convened in Bogota, Colombia.[11] In order to delineate the basic rights that were to be protected, the OAS member states adopted the American Declaration of the Rights and Duties of Man at the Bogota Conference in the form of a resolution. [12] The American Declaration is the first international (regional) human rights instrument of the modern era, adopted more than six months before the Universal Declaration of Human Rights. [13]

Four major contributions to the development of the Inter-American system of human rights can be attributed to the American Declaration of the Rights and Duties of Man. According to Cancado Trindade, these contributions are: [14]

a) the conception of human rights as inherent to the human person; b) the integral understanding of human rights (encompassing civil, political, economic, social and cultural rights); [15] c) the normative basis of protection vis-à-vis OAS member states not parties to the (subsequent) American Convention on Human Rights; and d) the correlation between rights and duties [16]

By the time 21 American states met to found the Organization of American States (OAS) in 1948, a majority of Latin American states, in addition to the United States, were unwilling to adopt a binding Inter-American human rights instrument. Indeed, only eight states supported the adoption of a separate human rights treaty; furthermore, six states advocated the incorporation of the American Declaration of the Rights and Duties of Man into the OAS Charter.[17] While this proposed incorporation was not achieved, it guided the subsequent argument concerning the hardening process of the Declaration.

Although originally adopted as a resolution and not as a treaty, both regional monitoring human rights bodies have recently held that the American Declaration currently represents a source of international obligations for all the OAS member states. Thereby, the regional bodies took into consideration the fact that the American Declaration has originally been rooted in the idea that “the international protection of the rights of man should be the principal guide of an evolving American law” [18] Under this premise, the Inter-American Court held that:

The Court finds it necessary to point out that to determine the legal status of the American Declaration it is appropriate to look to the Inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948 [19]

Consequently, some elements pertaining to the evolution of Inter-American human rights law prove to be instrumental in understanding the current binding nature of the American Declaration. Indeed, the Inter-American Commission was established by a resolution ten years after the adoption of the American Declaration and, a year later, the Commission’s Statute was drafted and approved by the OAS member states. The 1960 Statute defined “human rights” by explicit reference to the content of the American Declaration.

Beginning in 1960, the Inter-American Commission had been an entity of uncertain status until it was incorporated in the OAS Charter [20] as one of the primary bodies of the organization by a Charter amendment that came into force in 1970. By a process of “double incorporation” (in which the American Declaration becomes part of the statute of the Inter-American Commission and, subsequently, the Inter-American Commission is recognized as the primary monitoring body under the OAS Charter), the American Declaration arguably hardened, by implicitly becoming a key part of the binding Charter. [21] In turn, the Inter-American Commission adopted the “double incorporation” thesis in a petition concerning the right to life lodged against the United States in 1981. [22] In 1987, once again in a case against the United States but this time with regard to a juvenile death penalty, the Inter-American Commission stated that:

As a consequence of articles 3 (j) [current 3 (l)], 16 [current 17], 51 (e) [current 53 (e)], 112 [current 106] and 150 [current 145] of the Charter, [23] the provisions of other instruments of the OAS on human rights acquired binding force. Those instruments, approved with the vote of the U.S. Government, are the following: American Declaration of the Rights and Duties of Man; Statute and Regulations of the IACHR [Inter-American Commission] (…) The Statute provides that, for the purpose of such instruments, the IACHR is the organ of the OAS entrusted with the competence to promote the observance of and respect for human rights. For the purpose of the Statute, human rights are understood to be the rights set forth in the American Declaration in relation to States not parties to the American Convention on Human Rights [24]

Subsequently, the Inter-American Court furthered this hardening process by agreeing with the Inter-American Commission in its key Advisory Opinion 10/1989. Remarkably, the Inter-American Court affirmed that the fact “that the Declaration is not a treaty does not, then, lead to the conclusion that it does not have legal effect.” [25] Rather, the Inter-American Court stated that:

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 [26]

Despite the Inter-American Commission and the Inter-American Court’s position concerning the legal nature of the American Declaration, many OAS member states that are not parties to the American Convention have refused to acknowledge the American Declaration’s proclaimed binding force and, consequently, systematically disregard the Inter-American Commission recommendations issued against them. [27] This observation highlights the fact that the long-term question may not be whether human rights hard law is, in fact, more likely than arguable soft law to induce compliance, but whether it is so perceived by key human rights stakeholders, such as NGOs, issue networks, elites, the media and domestic judiciaries.

Relevant Links:

Charter of the Organization of American States:

http://www.oas.org/dil/treaties_A-41_Charter_of_the_Organization_of_American_States.htm

Signatures and Status of Ratification:

http://www.oas.org/dil/treaties_A-41_Charter_of_the_Organization_of_American_States_sign.htm

American Declaration of the Rights and Duties of Man:

http://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm

2.2. American Convention on Human Rights

Article 106 of the OAS Charter, as amended by the 1967 Protocol of Buenos Aires, prescribes that “(a) n Inter-American Convention on Human Rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters.” The American Convention on Human Rights was finally adopted at the intergovernmental conference convened by the OAS in San Jose, Costa Rica in 1969. Essentially, it protects the same civil and political rights as the Declaration. Unlike the Declaration, the Convention does not enumerate economic, social and cultural rights. Instead, it includes a general provision that encourages state parties to adopt progressive measures toward the full realization of the rights implicit in the economic, social, educational, scientific and cultural standards set forth in the OAS Charter.[28]

The Convention entered into force in 1978. Its drafting had been considerably delayed due to the action taken by the United Nations General Assembly in adopting two human rights covenants in 1966, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Potential conflict between both legal regimes (the “International Bill of Rights” [29] and the prospective regional convention) prompted the OAS Committee on Legal and Political Affairs to suggest that no further action on the drafting of the American Convention should be advanced until OAS member states had been given an opportunity to renew their commitment concerning the adoption of a regional human rights treaty. Upon consultation, the vast majority of OAS member states favored the enactment of coexisting systems.

At the initiative of the United States, the Secretariat of the Inter-American Commission prepared a comparative study of the institutional premises of the UN Covenants and the draft of the regional Convention. The Secretariat concluded that both systems could in fact coexist and be coordinated. Indeed, it reaffirmed the need for the adoption of a regional perspective on human rights by advocating that:

The need for, and the desirability of, a regional convention for the Americas are based on the existence of a body of American international law built up in accordance with the specific requirements of the countries of the hemisphere. That need and desirability also followed from the close relationship that exists between human rights and regional development and integration. Consequently, the Inter-American Convention on the Protection of Human Rights should be autonomous rather than complementary to the United Nations covenants [30]

The American Convention’s content and further application to concrete human rights conflicts by the monitoring bodies have, indeed, proved the fact that the regional perspective on human rights law is a distinctive and independent one. Concerning the distinctive features of the American Convention vis-à-vis, the UN International Covenant on Civil and Political Rights (ICCPR), Alston and Steiner highlight the following elements:

1. Article 27 of the ICCPR, which recognizes the rights of members of minority groups, has no counterpart in the American Convention; 2. the five provisions which are in the Convention but not in the ICCPR are the right of reply (Article 14), the right to property (Article 21), freedom from exile (Article 22 (5)), the right to asylum (Article 22 (7)), and prohibition of the “collective expulsion of aliens” (Article 21 (9)); 3. some provisions in the American Convention express the same general idea as in other human rights treaties but give it a distinctive specification–for example, Article 4 on the right to life that provides in paragraph 1 that the right “shall be protected by law and, in general, from the moment of conception”[31]

Furthermore, concerning the actual impact of the American Convention on the development of international human rights law, Mendez highlights some areas in which the contributions of the regional treaty have been unique in comparison to the universal (UN-based) or other regional systems. [32] First, the American Convention has the most advanced protection of free expression of any of the other international instruments; indeed, Article 13 of the Convention specifically prohibits prior censorship, [33] it specifies that freedom of thought and expression includes the freedom to seek, receive and impart information and ideas, and its Article 14 (1) incorporates a highly controversial provision among journalists and the media, i.e. the right of reply. Second, building upon the core obligations imposed on state parties to the American Convention, [34] the Inter-American Commission and the Inter-American Court held that transitional governments in the region had an affirmative duty to investigate grave breaches of human rights law and to prosecute whoever might be responsible. This double imposition led to two other innovations, the establishment of the right to truth [35] and the illegality of amnesty laws, [36] respectively.

Moreover, the American Convention contains several provisions intended to delineate the basic commitments undertaken by member states in connection with the interpretation of the conventional clauses within national jurisdictions. For instance, Article 29 of the American Convention prescribes that:

No provision of this Convention shall be interpreted as: a) permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein; b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party; c) precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have

In turn, this clause provides a guide for addressing contested human rights claims at the domestic level, in a preemptive mode, given the possibility of individuals filing a petition against a member state who disregards this general mandate when adjudicating a constitutional conflict. This general mandate has arguably endorsed the pro homine principle as a key interpretative tool within the regional human rights system. The pro homine principle states that the interpreter should follow the most beneficial criterion when it comes to recognizing the extent of protected rights for the individual and, simultaneously, that it should opt for the most restrictive reading of clauses intended to suppress the exercise of specific human rights. [37]

Not only does Article 29 warn member states about their overarching duty not to abridge human rights beyond the limit of a “legitimate [i.e., legally enacted] restriction,” [38] it also presupposes the coordination [39] of different instances of international (and regional) human rights protection. This coordination may, nonetheless, be challenged in connection with national constitutional rights recognized by member states or with the domestic authoritative interpretation of specific human rights clauses. [40] Other provisions worth noting are Articles 27 and 28 of the American Convention. Article 27 allows derogation from a state’s Convention duties “to the extent and for the period of time strictly required in emergency situations.”

The list of non-derogable provisions include Articles 3 (right to juridical personality), 4 (right to life), 5 (right to human treatment), 6 (freedom from slavery), 9 (freedom from ex post facto laws), 12 (freedom of conscience and religion), 17 (rights of the family), 18 (right to a name), 19 (rights of the child), 20 (right to nationality) and 23 (political rights), as well as “the judicial guarantees essential for the protection of such rights”, namely habeas corpus petitions and equivalent mechanisms. Article 28 contains a federal clause that could be construed as limiting the obligations of the national government in a federal state with respect to provisions over whose subject matter only the constituent unit has jurisdiction. [41]

Finally, Article 75 of the American Convention allows for reservations to the treaty provided that they are in conformity with the provisions of the Vienna Convention on the Laws of Treaties. Accordingly, Argentina, Barbados, Chile, Costa Rica, Dominica, Dominican Republic, El Salvador, Guatemala, Mexico, Uruguay and Venezuela have formulated reservations to substantive and procedural provisions of the American Convention at the time of their ratification or accession.

Relevant Links:

American Convention on Human Rights

http://www.cidh.oas.org/Basicos/English/Basic3.American%20Convention.htm

Signatures, Current Status of Ratifications, Reservations and Declarations

http://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm

2.3. Other Regional Human Rights Treaties

Article 77 of the American Convention on Human Rights allows for the list of rights and freedoms it protects to be gradually expanded by means of protocols. As a result, two protocols have entered into force thus far. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) entered into force in 1999. It establishes obligations regarding a variety of economic, social and cultural rights, subject to monitoring by OAS institutions including the body currently known as the Inter-American Council for Integral Development. [42]

In turn, the Inter-American Commission on Human Rights may formulate observations and recommendations concerning the rights enumerated in the protocol, while only two provisions of the protocol are brought within the individual petition procedure before the Inter-American Commission under the American Convention, with access to the contentious jurisdiction of the Inter-American Court. These provisions are Article 8 (1) (a) (right to organize or join trade unions) and Article 13 (right to education). As of 2010, this protocol has 15 state parties.

In addition, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty has 11 state parties in 2010. It entered into force in 1991. The Protocol prohibits capital punishment, but permits ratifying States to reserve the right to apply the death penalty in wartime for extremely serious crimes of a military nature. It fails to specify an enforcement mechanism. Furthermore, there are other human rights treaties in the Inter-American system of human rights that lack the formal status of protocols to the American Convention. These include the Inter-American Convention on Forced Disappearance of Persons, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belem do Para”) and the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities.

The Inter-American Convention on Forced Disappearance of Persons and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women allow for the processing of petitions by the Inter-American Commission and, eventually, before the Inter-American Court. In turn, the Inter-American Convention to Prevent and Punish Torture requires its state parties to inform the Inter-American Commission on Human Rights of any legislative, judicial or administrative that they adopt in application of the Convention. Finally, the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities states that a Committee for the Elimination of All Forms of Discrimination Against Persons with Disabilities shall be established and shall hold its first meeting within the 90 days following the deposit of the 11th instrument of ratification. The first meeting of the Committee was held on February 28 and March 1, 2007 in Panama City, Panama.

Relevant Links:

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”

http://www.cidh.oas.org/Basicos/English/basic5.Prot.Sn%20Salv.htm

Signatures and Current Status of Ratifications

http://www.cidh.oas.org/Basicos/English/Basic6.Prot.Sn%20Salv%20Ratif.htm

Protocol to the American Convention on Human Rights to Abolish the Death Penalty

http://www.cidh.oas.org/Basicos/English/Basic7.Death%20Penalty.htm

Signatures and Current Status of Ratifications

http://www.cidh.oas.org/Basicos/English/Basic8.Death%20Penalty%20Ratif.htm

Inter-American Convention to Prevent and Punish Torture

http://www.cidh.oas.org/Basicos/English/Basic9.Torture.htm

Signatures and Current Status of Ratifications

http://www.cidh.oas.org/Basicos/English/basic10.Torture%20Ratif.htm

Inter-American Convention on Forced Disappearance of Persons

http://www.cidh.oas.org/Basicos/English/Basic11.Disappearance.htm

Signatures and Current Status of Ratifications

http://www.cidh.oas.org/Basicos/English/Basic12.Disappearance%20Ratif.htm

Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belem do Para”

http://www.cidh.oas.org/Basicos/English/basic13.Conv%20of%20Belem%20Do%20Para.htm

Signatures and Current Status of Ratifications

http://www.cidh.oas.org/Basicos/English/Basic14.Conv%20of%20Belem%20Do%20Para%20Ratif.htm

Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities

http://www.cidh.oas.org/Basicos/English/Basic15.Disability.htm

Signatures and Current Status of Ratifications

http://www.cidh.oas.org/Basicos/English/Basic16.Disability%20Ratif.htm

Committee for the Elimination of All Forms of Discrimination Against Persons with Disabilities

http://www.oas.org/dil/persons_with_disabilities_the_committee.htm

3. Secondary Law: Regional Bodies

3.1. Inter-American Commission on Human Rights

In 1959, in Santiago, Chile, the Fifth Meeting of Consultation of Ministers of Foreign Affairs adopted a new resolution creating the Inter-American Commission on Human Rights. In the following year, the Permanent Council of the OAS approved the Statute of the Commission. The Statute described the Commission as an autonomous entity responsible for promoting [43] respect for the rights set forth in the American Declaration. Thus, the Inter-American Commission was originally conceived as a study group concerned with abstract investigations in the field of human rights [44] Hence, the Commission’s main objective was not to investigate (least to adjudicate) isolated human rights cases but to document the existence of gross and systematic violations, characterized by the absence or a lack of effective national mechanisms for the protection of human rights and a lack of cooperation from the government concerned. [45]

In order to exercise pressure to improve the general condition of human rights in the state concerned, the Inter-American Commission used its statutory authority [46] to hold meetings in any OAS member state as the basis for its self-proclaimed power to conduct on-site investigations. Consequently, these fact-finding investigations and the ensuing country reports, which the Inter-American Commission regularly presented to the General Assembly of the OAS, became the most significant activity of the Commission during the first years of its existence. [47] In addition to country reports, the Commission has drafted several thematic reports in recent years.

The creators of the Inter-American Commission did not anticipate the appeal this body would have for the individual victims of human rights violations. As soon as it became known that the Inter-American Commission had been created, individuals began to send complaints about specific human rights problems within their states. Prompted by these complaints, the Inter-American Commission started its activities “with the conviction that in order to promote human rights it had to protect them.” [48]

As a result of this process, in 1965, the Commission was authorized to examine and report on communications submitted to it, thereby initiating a system of individual petitions that encompassed all OAS member states. This system added a quasi-judicial character to the Commission, which coexists until now with its original advisory, drafting and monitoring functions. [49] After its status was modified, [50] the Inter-American Commission became a preponderant actor in the protection of human rights throughout the Americas.

In 1969, with the adoption of the American Convention, the basic competence of the Inter-American Commission vis-à-vis a parallel system of individual petitions was also delineated. The Inter-American Commission was then vested with a dual role: it retained its status as an organ of the OAS, thereby maintaining its powers to promote and protect human rights in the territories of all OAS member states; in addition, it is now a monitoring body of the American Convention. In that capacity, the Inter-American Commission supervises human rights in the territories of the state parties to the American Convention in an enhanced mode. [51]

Indeed, the Inter-American Commission, comprised of seven members elected in a personal capacity for a term of four years by the OAS General Assembly, is entitled to receive petitions containing denunciations and complaints of violations of the American Convention by a state party, provided that the petitioner has exhausted the domestic judicial remedies available to him or her. [52] Petitioners may comprise any person or group of persons, or any non-governmental entity recognized in one or more OAS member states. [53] Furthermore, Article 45 of the American Convention allows state parties to declare that they recognize the competence of the Inter-American 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. [54]

The primary objective of the Inter-American Commission’s protective function is to encourage the petitioner and the state concerned to reach a friendly settlement in their dispute. [55] If a settlement is not reached, the Inter-American Commission will draft a report setting forth the facts and stating its conclusions; [56] those conclusions may include the Commission’s proposals and recommendations on the disputed issue. Once this first report has been issued, the Commission has a period of three months to decide whether to submit the case to the jurisdiction of the Inter-American Court (provided that the state concerned has previously accepted such a contentious jurisdiction) or, if the Commission sees it fit, to prepare a new report if the state has not complied, and even to publish this latter document. [57]

Concomitantly, Article 25 of the Commission’s Rules of Procedure establishes the mechanism for precautionary measures. The provision states that in serious and urgent cases, and wherever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons. The granting of such measures and their adoption by the State shall not constitute any prejudgment on the merits of the case. [58]

Relevant Links:

Statute of the Inter-American Commission on Human Rights

http://www.cidh.oas.org/Basicos/English/Basic17.Statute%20of%20the%20Commission.htm

Rules of Procedure of the Inter-American Commission on Human Rights

http://www.cidh.oas.org/Basicos/English/Basic18.RulesOfProcedureIACHR.htm

Press Releases:

http://www.cidh.oas.org/comu.eng.ht

Special Reports (Thematic Reports, Country Reports and Other Publications)

http://www.cidh.oas.org/pais.eng.htm

Precautionary Measures

http://www.cidh.oas.org/medidas.eng.htm

Cases Published by the Inter-American Commission on Human Rights

http://www.cidh.oas.org/casos.eng.htm

Applications to the Inter-American Court of Human Rights

http://www.cidh.oas.org/demandasENG.htm

3.2. Special Rapporteurships and Working Groups

Article 15 of the Inter-American Commission Rules of Procedure grants the Commission the power to create Special Rapporteurships and Working Groups or Committees. The Commission may create Country Rapporteurships or Thematic Rapporteurships. There are currently 35 Country Rapporteurship, one per each OAS member state. There are also eight Thematic Rapporteurships as well as a Special Rapporteurship: Rapporteurship on the Rights of Women, Rapporteurship on the Rights of Migrant Workers and their Families, Rapporteurship on the Rights of the Child, Rapporteurship on the Rights of Indigenous Peoples, Rapporteurship on the Rights of Persons Deprived of their Personal Liberty and the Rapporteurship on the Rights of Afro-Descendants and Against Racial Discrimination. [59]

Thematic Rapporteurships are typically comprised of a Commissioner and staff lawyers. The Special Rapporteur for Freedom of Expression was created as an autonomous office and is not headed by an Inter-American Commission member but by an independent specialist on the issue. Only the Special Rapporteurship for Freedom of Expression is full time. The other Rapporteurships depend on the Commissioner elected to direct them. [60].Also, the Special Rapporteur for Freedom of Expression contributes with a Chapter of its own to the Inter-American Commission’s Annual Report. Additionally, the Inter-American Commission created a Working Group on Human Rights Defenders.

Relevant Links:

Special Rapporteurship for Freedom of Expression

http://www.cidh.oas.org/relatoria/index.asp?lID=1

Rapporteurship on the Rights of Women

http://www.cidh.oas.org/women/Default.eng.htm

Rapporteurship on the Rights of Migrant Workers and their Families

http://www.cidh.oas.org/Migrantes/defaultmigrants.htm

Rapporteurship on the Rights of the Child

http://www.cidh.oas.org/Ninez/default_eng.htm

Rapporteurship on the Rights of Indigenous Peoples (in Spanish)

http://www.cidh.oas.org/Indigenas/Default.htm

Rapporteurship on the Rights of Persons Deprived of Liberty (in Spanish)

http://www.cidh.oas.org/PRIVADAS/default.htm

Unit for Human Rights Defenders (in Spanish)

http://www.cidh.oas.org/defenders/defensores.htm

3.3. Inter-American Court of Human Rights

At the time of its adoption, in 1969, the American Convention filled the need for a definition of regional human rights in a binding form. It also added a layer of complexity to the mandate of the Commission [61] and created a judicial monitoring body of regional human rights law, namely, the Inter-American Court of Human Rights. Composed of seven judges [62] 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. However, its members may be nationals of any member state of the OAS, whether or not they are parties to the American Convention. [63] The American Convention also permits states to appoint ad hoc judges in inter-state cases in which no judge of either nationality is sitting. [64]

The Inter-American Court joined the Inter-American Commission in the task of interpreting the American Convention. [65] The former has a broad judicial mandate in contentious cases. If a state has accepted the Inter-American Court’s contentious jurisdiction, the Court has the power to declare a state party to the Convention in breach of its treaty obligations and to order reparations. [66] While the judgment of the Court is final and not subject to appeal, any of the parties may request the Court to interpret its decision in case of disagreement as to the meaning and scope of the judgment. [67]

Only state parties to the American Convention and the Inter-American Commission are empowered to submit cases under the Inter-American Court’s adjudicatory jurisdiction. [68] Individual petitioners seeking redress from human rights violations not dealt with at the domestic level are entitled to submit their complaint to the Inter-American Commission. [69] Nonetheless, a partial surrogate for individual access to the Inter-American Court has been developed through amendments to the Rules of Procedure of the Commission and the Court. Once a case is submitted to the Court, the Court’s Rules of Procedure provide full procedural opportunity for the individual to take part through chosen representatives rather than to rely on the Commission’s presentation. [70]

Moreover, if a presumed victim does not have legal representation in the proceedings before the Inter-American Court, Article 37 of the Rules of Procedure establishes that the Court may appoint, on its own motion, a defender to represent him or her during the processing of their case. The Legal Assistance Fund of the Inter-American Human Rights System will cover the defender’s fees. [71]

In turn, the Inter-American Court may, in cases of extreme gravity and urgency, and when necessary to avoid irreparable injury to people, adopt the provisional measures, as it deems pertinent in matters it has under consideration. [72] With respect to a case not yet submitted to it, the Inter-American Court may act at the request of the Inter-American Commission. Furthermore, the Court also has an advisory jurisdiction that may be invoked by any member state of the OAS and by the main bodies of the organization, including the Inter-American Commission. [73]

Finally, unlike the European Court of Human Rights, the Inter-American Court performs the supervision of the states’ compliance with its own judgments. While the monitoring procedure established by the European Council of Ministers is arguably a politically-charged process in which the appraisal upon compliance might function as a bargaining chip for other unrelated concerns of the states, the supervision established by the Inter-American Court is allegedly immune from that critique. According to Article 65 of the American Convention:

[t]o each regular session of the General Assembly of the Organization of American States (hereinafter OAS) the Inter-America Court shall submit, for the Assembly’s consideration, a report on its work during the previous year. It shall specify, in particular, the cases in which a state has not complied with its judgments, making any pertinent recommendations

The Inter-American Court has read this provision as allowing it to issue ad hoc judgments assessing whether a state has complied with the remedial measures imposed upon it by the Court. Thus, the Inter-American Court has taken upon its shoulders the need to further guide states on compliance strategies. The procedure for monitoring compliance with the judgments and other decisions of the Court requires the submission of reports by the state and observations to those reports by the victims or their legal representatives. In turn, the Commission presents observations to the state’s reports and to the observations of the victims or their representatives. Interestingly, the Court may require from other sources of information relevant data regarding the case in order to evaluate compliance. To that end, the Court has been authorized to request the expert opinions or reports that it considers appropriate. [74] In case of a finding of non-enforcement, additional, more detailed obligations may be imposed upon the state in order to ensure compliance.

Relevant Links:

Statute of the Inter-American Court of Human Rights

http://www.corteidh.or.cr/estatuto.cfm

Rules of Procedure of the Inter-American Court of Human Rights

http://www.corteidh.or.cr/reglamento_eng.cfm

Press Releases:

http://www.corteidh.or.cr/comunicados.cfm

Contentious Cases

http://www.corteidh.or.cr/casos.cfm

Advisory Opinions

http://www.corteidh.or.cr/opiniones.cfm

Provisional Measures

http://www.corteidh.or.cr/medidas.cfm

Compliance with Judgments

http://www.corteidh.or.cr/supervision.cfm

Cases Law by Country

http://www.corteidh.or.cr/porpais.cfm

Case Files

http://www.corteidh.or.cr/expedientes.cfm

Search System of Case Law (by Date and by Subject)

http://www.corteidh.or.cr/buscadores.cfm

4. Annual Reports

The Annual Reports present statistics reflecting the size of the bodies’ dockets, the nature of the cases before them, the jurisdictions from which those cases are coming and, more interestingly, the current rate of compliance with the bodies’ decisions. In addition, both Reports provide specific summaries of the facts of the cases they address and of the content of the decisions delivered by both bodies. Moreover, both Annual Reports should be consulted to check on the annual budget of each monitoring body, [75] the variety of financial contributions that benefit each body and other promotional activities.

In 2009, the Inter-American Commission on Human Rights visited seven OAS member states, including Honduras and the United States. In Honduras, the Commission representatives met with the de facto government authorities and with members of the civil society; in the United States, the Commission’s Special Rapporteur on the Rights of Migrant Workers and their Families visited detention centers in Arizona and Texas. The Commission also published two country reports and six thematic reports. During its ordinary and extraordinary sessions, the Commission held 89 hearings and 44 working meetings and approved a major reform of its Rules of Procedure.

That same year, the Inter-American Commission received 1431 petitions. The states against which more petitions were submitted are Colombia (237), Mexico (232), Peru (201) and Argentina (159). In the last 4 years, the number of petitions received by the Commission did not vary much (1323 in 2008, 1456 in 2007; 1325 in 2006 and 1330 in 2005). In 2009, the Commission evaluated a total of 2064 petitions and published 62 admissibility reports, 15 inadmissibility reports, 13 reports on the merits, 4 friendly settlements and submitted 12 cases to the I/A Court. [76] It also held 89 public hearings and archived 20 cases. As of December 2009, petitions pending a final resolution from the Commission (either because the procedural steps leading to the final resolution were still not complete or because, being those steps complete, the Commission have not yet issued its opinion on the matter) amounted to 1450.

As of compliance rates, the Commission developed a chart in which it distinguishes among “total compliance” (those cases in which the state has fully complied with all the recommendations made by the Commission), “partial compliance” (those cases in which the state has partially observed the recommendations made by the Commission either by having complied with only one or some of them or through incomplete compliance with all of them) and “compliance pending” (those cases in which the Commission considers that there has been no compliance with the recommendations because no steps have been taken in that direction; because the state has explicitly indicated that it will not comply with the recommendations made; or because the state has not reported to the Commission and the latter has no information from other sources that would suggest otherwise). In 2009, the Commission monitored 128 reports. Only 16 reports were deemed to have been fully complied with, 23 reports were neglected by the states in totum and the remaining 89 petitions were only partially complied with.

Also worth noting is Chapter IV of the Inter-American Commission Annual Report (“Human Rights Developments in the Region”). This Chapter provides a more detailed assessment of the human rights situations in particular states of the Americas that have been the subject of the Commission’s close scrutiny. In some instances, this practice has served the purpose of reporting on a particular event that had taken place or was emerging or developing at the close of the Commission’s reporting cycle. 

The Annual Report for 1997 set forth five criteria pre-established by the Commission to identify the member states of the OAS whose human rights practices merited special attention. These are:

a) states ruled by governments that have not come to power through popular elections, by secret, genuine, periodic, and free suffrage, according to internationally accepted standards and principles; b) states where the free exercise of the rights set forth in the American Convention or American Declaration have been, in effect, suspended totally or in part, by virtue of the imposition of exceptional measures, such as state of emergency, state of siege, suspension of guarantees, or exceptional security measures, and the like; c) there is clear and convincing evidence that a state commits massive and grave violations of the human rights guaranteed in the American Convention, the American Declaration, and all other applicable human rights instruments (the Commission is especially concerned about violations such as extrajudicial executions, torture, and forced disappearances); d) states that are in a process of transition from any of the above three situations; and e) 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.  

As a result of this analysis, Colombia, Cuba, Haiti and Venezuela have been consistently selected for conducting this more detailed political assessment of their human rights situation. In 2009, Honduras was added to the list.

As to the Inter-American Court, it held during 11 public hearings and 24 private hearings on contentious cases during its ordinary and extraordinary sessions. Like the Inter-American Commission, the Court approved a major reform to its Rules of Procedure. It also received 12 contentious cases and 10 provisional measures requests in 2009. In comparison with the prior 5 years, both the number of contentious cases being submitted to the Court and the number of provisional measures requests increased in 2009 (9 and 4 in 2008; 14 and 9 in 2007 respectively; 14 and 13 in 2006; 10 and 7 in 2005). Also in 2009, the number of cases pending before the Court (i.e. those cases, which had not been decided, plus those cases which are still at the monitoring/compliance phase) was 118. The curve describing the Court’s docket is in a constant crescendo since 2002 (39 cases in 2002, 54 in 2003, 65 in 2004, 74 in 2005, 88 in 2006, 101 in 2007 and 110 in 2008). Moreover, of the total of 120 cases decided by the Court since its creation, 80 correspond to the period from 2004 to 2009. However, it should be noticed that the bulk of pending cases before the Court in 2009 were at the monitoring phase (104), while only 14 cases were still awaiting a final decision on their merits. Another interesting data point is the fact that in 38.3% of the cases adjudicated by the Court since its inception the states have acquiesced or acknowledged completely or in part their international responsibility.

Finally, in connection with its monitoring function, the Court has conducted an extensive analysis of the number of cases in which monetary remedies have been complied with by the states. The results of such study show that 81% of these reparations have been complied with, at least partially, whereas the remaining 19% is still pending compliance. The Executive Secretariat is currently drafting a second study, this time on compliance with non-monetary reparations by state parties to the Convention.

Relevant Links:

Annual Reports of the Inter-American Commission on Human Rights

http://www.cidh.oas.org/annual.eng.htm

Sessions and Hearings

http://www.cidh.oas.org/Prensa/periodosesionesENGL.htm

Annual Reports of the Inter-American Court of Human Rights

http://www.corteidh.or.cr/informes.cfm

Sesssions and Hearings

http://www.corteidh.or.cr/fechas.cfm

Additional Sources of Information

Inter-American System of Human Rights:

OAS and Human Rights

http://www.oas.org/en/topics/human_rights.asp

Inter-American Commission on Women

http://www.oas.org/cim/English/About.htm

Inter-American Children’s Institute

http://www.iin.oea.org/iin/english/index.shtml

Inter-American Institute of Human Rights

http://www.iidh.ed.cr/default_eng.htm

Joint Library of the Inter-American Court of Human Rights and the Inter-American Institute of Human Rights

http://www.corteidh.or.cr/info_gral.cfm

International, Regional and National Non-Governmental Organizations:

http://www.corteidh.or.cr/ongs.cfm

Universities:

http://www.corteidh.or.cr/universidades.cfm

Specialized Publications

http://www.corteidh.or.cr/libros.cfm

http://www.juridicas.unam.mx/publica/rev/cont.htm?r=dialjur

http://www.iidh.ed.cr/default_eng.htm

http://cejil.org/en/publicaciones-en-varios-idiomas-publications-various-languages-publicacoes-em-varias-linguas

http://www.dplf.org/index.php?c_ID=370

http://www.surjournal.org/eng/index.php

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[1] Dinah Shelton, Regional Protection of Human Rights, 68 (Oxford University Press, 2008).

[2] In the case of Cuba, the Inter-American Commission on Human Rights has decided that although the government of Cuba was excluded from the organization, the OAS did not intend to exclude the Cuban people from the protection of international human rights law. Thus, the Inter-American Commission concluded that it retains jurisdiction ratione materiae to review individual petitions against Cuba that allege violations of a right or obligation contained in the American Declaration. See Claudio Grossman, American Declaration on the Rights and Duties of Man and The Inter-American Commission on Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed., Oxford University Press, online edition [www.mpepil.com], visited July 2010).

[3] Trinidad and Tobago decided to opt out of the contentious jurisdiction of the Inter American Court and eventually denounced the American Convention on Human Rights. For a general account of the Trinidad and Tobago case, see Natasha Parassan Concepcion, The Legal Implications of Trinidad and Tobago’s Withdrawal from the American Convention on Human Rights, 16 Am. U. Int’l L. Rev., 847 (2001).

[4] In July 4, 2009, the OAS General Assembly held a special session where it approved resolution AG/RES.2 (XXXVII-E/09) in which it decided to suspend the Honduran State from the exercise of its right to participate in the OAS.  In that same resolution the General Assembly resolved “to reaffirm that the Republic of Honduras must continue to fulfill its obligations as a member of the Organization, in particular with regard to human rights; and to urge the Inter-American Commission on Human Rights to continue to take all necessary measures to protect and defend human rights and fundamental freedoms in Honduras.”

[5] It should be noted that Jamaica accepted the competence of the Inter-American Court on Human Rights to receive and examine communications in which a state party alleges that another state party has violated the human rights set forth in the American Convention, see Article 61 (1) of the American Convention.

[6] I use the words “soft” and “hard” in this guide to refer, respectively, to non legally-binding instruments and standards vis-à-vis legally-binding ones. For a comprehensive description of the origin and implications of this terminology, see Dinah Shelton, Law, Non-Law and the Problem of
“Soft-Law,” in Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System, 1 (Dinah Shelton ed., Oxford University Press, 2000).

[7] For a definition of the difference between soft and hard obligations, as well as between primary and secondary law in connection with the Inter American system of human rights, see Douglass Cassel, Inter-American Human Rights Law, Soft and Hard, in Commitment and Compliance (Dinah Shelton ed.), id., at 393.

[8] According to Pasqualucci, “the [Inter-American] Court has also stated that state compliance with Commission recommendations is not obligatory (…) and the Court will not hold the state liable for failure to fulfill Commission recommendations,” see Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, 343 (Cambridge University Press, 2003). Nonetheless, states must still “heed” the recommendations contained in the Commission’s reports and do their best to implement them, pursuant to the principle of good faith. See Juan E. Mendez, The Inter-American System of Protection: Its Contributions to the International Law of Human Rights, in Realizing Human Rights. Moving from Inspiration to Impact, 111, 125 (Samantha Power and Graham Allison eds., St. Martin’s Press, 2000).

[9] According to Mendez, “[i]n some ways, the umbrella of the OAS can be a burden and a straitjacket for the human rights protection system because at times it provides the channels of undue political pressure … but there is no doubt that also it has often afforded an appropriate forum to condemn violations and to seek their redress,” see Mendez, id., at 112.

[10] Current article 3 (l), OAS amended Charter.

[11] The Charter entered into force in 1951 and has since been amended by the Protocol of Buenos Aires of 1967, the Protocol of Cartagena de Indias of 1985, the Protocol of Washington of 1991, and the Protocol of Managua of 1993. Its predecessor organizations date back to the International Union of American Republics of 1890. In the 58 years between this date and the founding of the Union’s ultimate successor, the OAS, the subject of human rights was dealt with in nine international conferences of representatives of American countries, including three Meetings of Consultation of Ministers of Foreign Affairs, and several conferences of subsidiaries bodies. See A. Glenn Mower, Jr., Regional Human Rights. A Comparative Study of the West European and Inter-American Systems, 44 (Greenwood Press, 1991).

[12] Resolution XXX, Final Act of the Ninth International Conference of American States. The American Declaration was preceded or accompanied by other instruments of varying content and legal effects, generally oriented to certain situations of categories of rights. For instance, in that same Ninth Conference, a virtually unnoticed human rights instrument was also adopted, namely, the Inter-American Charter of Social Guarantees, Resolution XXIX, Final Act of the Ninth International Conference of American States.

[13] See Claudio Grossman, American Declaration on the Rights and Duties of Man and The Inter-American Commission on Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed.), supra note 2.

[14]   Antonio Augusto Cancado Trindade, The Inter-American Human Rights System at the Dawn of the New Century: Recommendations for Improvement of its Mechanism of Protection, in The Inter-American System of Human Rights, 395-6 (David J. Harris and Stephen Livingstone eds., Clarendon Press Oxford, 1998).

[15] Likewise, the Universal Declaration of Human Rights adopted a comprehensive definition of the right to be protected and promoted by the UN member states.

[16] The American Declaration–articles XXIX to XXXVIII–demands that the individual “so to conduct himself in relation to others that each and every one may fully form and develop his personality,” to “aid, support, educate and protect his minor children,” to “acquire at least an elementary education,” to “vote in popular elections,” to “obey the law and other legitimate commands of the authorities,” to “render whatever civil and military service his country may require for its defense and preservation,” to “cooperate with the state with respect to social security and welfare,” “to pay taxes,” and to “work.” These ten provisions would be mirrored within the text of the subsequent American Convention on Human Rights. Indeed, Article 32 of the Convention reads: “1. Every person has responsibilities to his family, his community and mankind; 2. The rights of each person are limited by the rights of others, by the security of all, and by the just demands of a general welfare, in a democratic society.”

[17] See Cassel, supra note 7, at 399. A much more vivid account has been provided by Slater who reported that “at the Bogota Conference in 1948, once the United States had helped defeat the troublesome Guatemalan, Uruguayan, and Brazilian efforts to create machinery for the enforcement of human rights and democracy, it was willing to agree to the vague and unenforceable Declaration of the Rights and Duties of Man,” [sic] see Jerome Slater, The OAS and the United States Foreign Policy, 254 (Ohio State University Press, 1967).

[18] Third Considerandum, American Declaration of the Rights and Duties of the Man.

[19] I/A Court H.R., 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, Advisory Opinion OC-10/89 of July 14, 1989, Series A No. 10, paragraph 37.

[20] Current Article 106, OAS Charter, as originally amended by the Protocol of Buenos Aires.

[21] See Cassel, supra note 7, at 397.

[22] According to the report issued by the Inter-American Commission against the United States, “[w]hile the American Convention on Human Rights clearly was intended to complement the Declaration, these two documents exist on different legal planes and must be analyzed separately. The Declaration … provides a statement of basic human rights. It was adopted by a unanimous vote, the United States participating. When the Commission was created in 1959, the Declaration gave form to its charge to protect the observance of human rights in the Americas,” emphasis added. White and Potter v. United States, Case 2141, Inter-Am C.H.R., Report No. 23/81, OEA/ Ser.L./V/II.54, Doc. 9, rev. 1, paragraph 14 b (1981).

[23] For the purposes of this account, it should be noted that Articles 53 (e) and 106 of the Charter have incorporated the Inter-American Commission on Human Rights as a primary organ of the OAS. The Commission was entrusted with the function of promoting the observance and protection of human rights within the region as well as serving as a consultative organ of the OAS in these matters.

[24] Roach and Pinkerton v. United States, Case 9647, Inter-Am C.H.R., Report No. 3/87, paragraphs 48-9 (1987), available at http://www.cidh.org/annualrep/86.87eng/EUU9647.htm.

[25] I/A Court H.R., Advisory Opinion OC 10-89, supra note 43, at paragraph 47.

[26] Id. paragraph 43.

[27] A paramount example of a recalcitrant state on this point is represented by the United States. The opinion of the United States concerning the binding force of the American Declaration and, consequently, the competence of the Inter-American Commission concerning the adjudication of individual complaints has been summarized as follows: “With regard to each implication or direct assertion in the Commission’s report that the American Declaration of the Rights and Duties of Man itself accords rights or imposes  duties, some of which the United States has supposedly violated, the United States reminds the Commission that the Declaration is no more than a recommendation to the American States.  Accordingly, the Declaration does not create legally-binding obligations and therefore cannot be ‘violated’” Response of the Government of the United States of America to the Inter-American Commission on Human Rights, Report 85/00 of October 23, 2000, concerning Mariel Cubans (Case 9903), available at http://www.cidh.org/Respuestas/USA.9903.htm [emphasis in the original].

[28] See Article 26 of the American Convention which reads: “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 other cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires” [emphasis added].

[29] According to Jayawickrama, the “International Bill of Rights” comprises the Universal Declaration of Human Rights and the two 1966 UN Covenants (International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights). See Nihal Jayawickrama, The Judicial Application of Human Rights Law, National, Regional and International Jurisprudence, 24 (Cambridge University Press, 2002).

[30] See Mower, supra note 11, at 45-6.

[31] See Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals, 870 (Oxford University Press, 2d ed., 2000).

[32] See Mendez, supra note 8, at 117-23.

[33] This prohibition is not absolute. Prior censorship is allowed only in the case of public exhibitions for the exclusive purpose of preventing access by children and adolescents. See Article 13 (4) of the American Convention.

[34] I am referring here to the duty to respect the rights and freedoms recognized in the treaty as well as the need to ensure that all persons subject to their jurisdiction the free and full exercise of those rights and freedoms; see Article 1 (1) of the American Convention [emphasis added].

[35] The first contentious cases to reach the Inter-American Court concerned forced disappearances. The Inter-American Commission had decided to bring two cases against Honduras as a way of highlighting the seriousness of this practice and obtaining the Court’s support in the struggle to eradicate it. In the Velasquez and Godinez cases, the Inter-American Court confirmed that forced disappearances constitute crimes against humanity and, in doing so, the Court “went a long way toward establishing a widely recognized emerging principle in international law that states have an obligation to investigate, prosecute and punish certain crimes. In that sense, the Inter-American organs have contributed doctrinally to the international community’s willingness to institute forms of universal jurisdiction, such as the ad hoc war crimes tribunals for the former Yugoslavia and Rwanda and the establishment of a permanent International Criminal Court,” see Mendez, supra note 17 at 122. See also, I/A Court H.R., Case of Velasquez-Rodriguez v. Honduras, Judgment of July 29, 1988, Series C No. 4, as well as, I/A Court H.R., Case of Godinez-Cruz v. Honduras, Judgment of January 20, 1989, Series C No. 5.

[36] Recently, the Inter-American Court reaffirmed the illegality of self-amnesty laws in the Barrios Altos and Almonacid Arellano cases. See I/A Court H.R., Case of Barrios Altos v. Peru, Judgment of March 14, 2001, Series C No. 75 and I/A Court H.R., Case of Almonacid-Arellano et al. v. Chile, Judgment of September 26, 2006, Series C No. 154.

[37] See Monica Pinto, El Principio pro homine. Criterios de Hermeneutica y Pautas para la Regulacion de los Derechos Humanos [The Pro Homine Principle. Interpretative tools and Guides for the Regulation of Human Rights], in La Aplicacion de los Tratados sobre Derechos Humanos por los Tribunales Locales [The Adjudication of Human Rights Treaties by Domestic Courts], 163 (Martin Abregu and Christian Courtis, eds., CELS, Editores del Puerto, 1997).

[38] Article 30 of the American Convention regulates the scope of the restrictions valid under the Convention in the following terms: “The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.” See also I/A Court H.R., The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of May 9, 1986, Series A No. 6.

[39] See, for instance, Article 29 (b) and (d) and their references to “the laws of any State Party” and “another convention to which one of the said states is a party”, as well as to the “American Declaration” and other “international acts of the same nature,” respectively.

[40] The parallel application of both domestic and regional human rights law constitutes one of the most challenging tasks for the Supreme Court of Argentina and, indeed, the primary concern behind this thesis. In this respect, it should be noted that the Inter-American system of human rights has not adopted the margin of appreciation theory devised by its European counterpart and, hence, its core directives concerning domestic application of regional human rights law are to be found in the provisions of the American Convention that I have briefly discussed. For a comprehensive analysis on this topic, among many other commentators, see Liliana Valina, El Margen de Apreciacion de los Estados en la Aplicacion del Derecho Internacional de los Derechos Humanos en el Ambito Interno [The Margin of Appreciation in the Domestic Application of International Human Rights Law], in La Aplicacion de los Tratados sobre Derechos Humanos por los Tribunales Locales [The Adjudication of Human Rights Treaties by Domestic Courts] (Martin Abregu and Christian Courtis, eds.), supra note 38, at 173, 180-1.

[41] See Gerald Neuman, American Convention on Human Rights and The Inter-American Court of Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed., Oxford University Press, online edition [www.mpepil.com], visited July 2010).

[42] Id.

[43] According to Mendez, “the Commission was created … basically as an organ of promotion rather than of protection;” as I will describe in the following paragraphs “the Commission had enough flexibility, however, to interpret its mandate from the start as allowing it to monitor a country’s compliance with the norms of the American Declaration,” see Mendez, supra note 8, at 112. For a theoretical differentiation between promotion and protection of human rights, see Cecilia Medina, Toward Effectiveness in the Protection of Human Rights in the Americas, 8 Transnat’l L. & Contemp. Probs. 337, 338 (1998): “[t]he promotion of human rights, meaning activities that are aimed at furthering human rights, is a vital element for this enterprise: standard-setting, education, and other developmental activities help individuals and groups by recognizing and legitimizing their rights and by enabling them to assert these rights in their own countries. A similar role is carried out through advisory activities designed to help states adapt their laws and practices to their human rights obligations … Also essential to the final objective are protective activities, such as the individual complaint mechanism and the review of human rights situations in specific countries.” [emphasis added].

[44] Cecilia Medina, The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a Joint Venture, 12 Hum. Rts. Q. 439, 440 (1990).

[45] Id. at 440-1.

[46] The 1960 statute provided, in its Article 11 (c), that the Inter-American Commission “may move to the territory of any American state when it so decides by an absolute majority and with the consent of the government concerned.” According to Buergenthal, “The Commission’s most dramatic on-site investigation took place in Argentina. There it verified the allegations of the massive forced disappearances that had occurred in that country during its dirty war. The publication of its report on the Argentine situation had a highly beneficial impact on the conditions in that country.” See Thomas Buergenthal, The Evolving International Human Rights System, 100 Am. J. Int’l L. 783, 795 (2006) [emphasis added]. Indeed, the Inter-American Commission conducted an in loco investigation in Argentina under the invitation (prompted by the Commission) of the Argentinean de facto military government. Members of the Commission visited various Argentinean cities from September 6 to September 20, 1979. As a result of the interviews conducted, the complaints it received and its visits to prisons, the Commission drafted a country report on Argentina that was presented to the OAS General Assembly in 1980. The report became a crucial element in publicly condemning the widespread practice of forced disappearances in Argentina. For an English version of the table of contents of the “Report on the Situation of Human Rights in Argentina,” see http://www.cidh.org/countryrep/Argentina80eng/toc.htm.

[47] Christina Cerna, The Inter-American Commission on Human Rights: its Organization and Examinations of Petitions and Communications, in The Inter-American System of Human Rights (David J. Harris and Stephen Livingstone eds.), supra note 14, at 65, 67.

[48] For a detailed account of the complaints received by the Commission in this early period, see Medina, supra note 69, at 440.

[49] These activities are chiefly represented by the on-sites visits conducted by the Commission upon OAS member states’ requests, by the drafting of special reports and resolutions and by the work conducted through the Commission’s Special Rapporteurships.

[50] As I already stated when referring to the hardening process of the American Declaration, the Protocol of Buenos Aires to the OAS Charter modified the status of the Commission from an “autonomous entity” into one of the “primary organs” of the OAS in 1967.

[51] See Medina, supra note 45, at 443.

[52] The American Convention prescribes certain admissibility requirements for the petitions submitted. The presence of these requirements is analyzed on a case-by-case basis by the Inter-American Commission. Among them, the primary ones are the need for the petitioner to pursue and exhaust, in accordance with generally recognized principles of international law, remedies under domestic laws, see Article 46, (1) (a). Nonetheless, Article 46 (2) contains important exceptions to fulfilling this requirement. Furthermore, the Inter-American Court added two more waivers to this admissibility concern in I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Series A No. 11.

[53] Article 44 of the American Convention.

[54] As of 2010, Argentina, Chile, Colombia, Costa Rica, Jamaica, Nicaragua, Peru, Uruguay and Venezuela have recognized this additional competence of the Commission.

[55] Article 49 of the American Convention.

[56] Article 50 of the American Convention.

[57] Article 51 of the American Convention. A brief but enlightening account of the interpretative difficulties posed by the ambiguous language employed in the American Convention concerning the relationship between Articles 50 and 51 can be found in Hector Faundez Ledesma, El Sistema Interamericano de Proteccion de Derechos Humanos. Aspectos Institucionales y Procesales [The Inter-American System of Human Rights. Institutional and Procedural Aspects], 268-87 (Instituto Interamericano de Derechos Humanos, 1996).

[58] See Claudio Grossman, American Declaration on the Rights and Duties of Man and The Inter-American Commission on Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed.), supra note 2.

[59] There is no website for the Rapporteurship.

[60] See Claudio Grossman, American Declaration on the Rights and Duties of Man and The Inter-American Commission on Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed.), supra note 2.

[61] It will not only apply the provisions of the American Declaration but also the American Convention’s contents, within the limits of its mandate, as stated by Articles 44 to 51 of the American Convention.

[62] Article 52 (1) of the American Convention.

[63] Id.

[64] Article 55 (3) of the American Convention and I/A Court H.R., Article 55 of the American Convention on Human Rights, Advisory Opinion OC-20/09 of September 29, 2009, Series A No. 20.

[65] Veronica Gomez, The Interaction between the Political Actors of the OAS, the Commission and the Court, in The Inter-American System of Human Rights (David J. Harris and Stephen Livingstone eds.), supra note 14, at 177.

[66] Article 63 (1) of the American Convention. See also, Article 68 which prescribes that: “1. The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties; and 2. That 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” [emphasis added].

[67] Article 67 of the American Convention; Article 68 of the Rules of Procedure of the Inter-American Court.

[68] Article 61 (1) of the American Convention.

[69] Article 44 of the American Convention.

[70] See Gerald Neuman, American Convention on Human Rights and The Inter-American Court of Human Rights, in The Max Planck Encyclopedia of Public International Law (R. Wolfrum, ed.), supra note 41.

[71] On February 4, 2010, the Inter American Court approved the Rules of Procedure for the Operation of the Legal Assistance Fund of the Inter American Human Rights System, which entered into force beginning June 1, 2010. The Inter American Commission invited the member states, civil society organizations, and other experts to communicate their observations to the Commission regarding the operation of the Legal Assistance Fund.

[72] Article 27 of the Rules of Procedure of the Inter-American Court.

[73] Article 64 of the American Convention.

[74] Article 69 (2) of the Rules of Procedure of the Inter-American Court.

[75] US$ 4,488,600 for the Commission and US$ 1,919,500 for the Court.

[76] It should be noticed that the Commission only publishes those reports that it deems not to be complied with in the first instance or that is decides not to submit to the Court.