The Inter-American Court of Human Rights was given the task in 1969 of overseeing state compliance with the new American Convention on Human Rights, becoming both a force for human rights in the Americas and a symbol of the limits of human rights enforcement.
The American Convention on Human Rights
A specialized conference on human rights was convened in San José, Costa Rica, November 7-22, 1969, at which the ACHR was put forward. Nineteen of the twenty-four OAS members were present, but only twelve signed the document at that time. Conspicuous by their absence were the “big four” in the OAS—the United States, Brazil, Mexico, and Argentina.
The ACHR is a unique document, achieving what neither the United Nations nor the Council of Europe attempted, the incorporation in a single instrument of both civil and political rights and economic and social rights, as well as provisions for enforcement procedures. It has three sections comprising eighty-two articles.
The first section specifies twenty-two civil and political rights and also recognizes the obligation of the states to achieve modern social and economic standards. This considerable listing is in sharp contrast to the 1953 European Convention on Human Rights, which modestly cited thirteen civil and political rights. Moreover, many rights are extensively elaborated in the ACHR. For example, Article 4, which protects the “right to life” in a region plagued by government-sanctioned death squads, also recognizes the right to life “from the moment of conception.”
Section 2 provides the mechanisms of implementation. which are broadly patterned on the European Convention on Human Rights. Like the European system, it relies on two basic organs: the Inter-American Commission on Human Rights
The commission had already created a successful image of its ability to promote human rights within the OAS. Provisions in the ACHR established a “double mandate” for the commission: continued authority over OAS members regarding human rights and a new role over signatory states under the ACHR.
A unique aspect of protection under the inter-American system is its automatic authorization of the right of individual petition: The Commission is permitted to accept petitions alleging human rights violations from “any person or group of persons, or any nongovernmental entity” regarding any signatory. Other human rights treaties have reserved such a right of individual petition as an optional protocol, for the obvious reason that it creates a direct link between the international system and the individual in defiance of the states’ domestic jurisdiction. The complainant, who is not even required to be the victim of the alleged violation, must first exhaust domestic remedies (so that states have the opportunity to correct the alleged violation in their juridical systems). States can also be petitioners against other states. Because interstate petitions are highly political, however, the authority of the commission to review them is not inherent but is instead reserved for an optional protocol.
The states must cooperate with the commission’s efforts to gather information, including on-site investigations. The commission is to seek a friendly settlement between the parties when possible. If this is not achieved, the commission is either to compile a report based on its recommendations and state compliance or, when appropriate, to send the case on to the Inter-American Court of Human Rights.
The capstone of the enforcement machinery is the Inter-American Court of Human Rights. Only the European Court of Human Rights shares the same crucial, visible, and authoritative position as an independent international tribunal capable of supervising state compliance with a given human rights document. The court has two kinds of jurisdiction—contentious, or adjudicatory, and advisory. Because its advisory jurisdiction is intrinsic to the ACHR, the court itself came into existence when the ACHR entered into force with the required eleventh ratification on July 18, 1978.
The court’s advisory jurisdiction may be invoked by the request of any appropriate organ of the OAS or any signatory regarding the interpretation of the treaty. A state may also request an advisory opinion on the compatibility of its domestic legislation with the ACHR. What this anticipates, given the very active role of the commission and its wide scope for taking individual complaints, is a pattern of advisory opinions requested by the commission aimed at an authoritative identification and condemnation of the worst violations among the ACHR membership.
The court’s accompanying compulsory jurisdiction—tantamount to a landmark breach of domestic jurisdiction—is not intrinsic to the document but is an optional protocol. States that accept Article 62 recognize “as binding . . . the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.” (Costa Rica, which hosts the court in San José, was the only immediate adherent to Article 62.) Obviously, no state can pursue a contentious case or be required to respond to one unless both parties have accepted the optional protocol in Article 62.
The court may order compensation from the state for victims and authorize interim steps “in cases of extreme gravity and urgency.” The latter is unusual, yet appropriate in light of the scope and seriousness of violations within its membership. State parties agree to comply with the judgment of the court in any case to which they are parties, and the court makes an annual report to the OAS regarding compliance. Only adhering states and the commission have standing before the court, and the commission is involved in every case. The court is composed of seven members (no two from the same OAS state) who serve in their individual capacity, not as representatives of their states. Five judges constitute a quorum.
The ACHR entered into force on July 18, 1979, with the requisite eleven adherents: Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada. Guatemala, Haiti, Honduras, Panama, and Venezuela. As noted, the United States did not sign the treaty at the close of the San José conference. The United States has long evidenced an ambivalent attitude toward the ACHR, as well as other human rights treaties. That is, the United States championed human rights as an abstract ideal and as a useful bulwark against communist expansion, yet the United States has rejected nearly every human rights treaty as an unacceptable infringement upon its sovereignty. President Jimmy Carter
The Inter-American Court of Human Rights has had to function quite differently from the European Court of Human Rights. Virtually all of the Western European adherents to their court had established domestic systems in which basic human rights were routinely protected. Thomas Buergenthal, later to be a judge on and president of the Inter-American Court, noted that in much of Latin America, “immense poverty, vast illiteracy, widespread corruption, economic exploitation and social backwardness” resulted in totalitarianisms in regimes on both the political right and left which were the “very antithesis of human rights.” Nevertheless, the Inter-American Court found a way, in tandem with the commission, to use effectively the authority at its disposal, as illustrated in two highly publicized cases.
Honduras had accepted Article 62 in 1981. In 1986, it was brought before the court by the commission regarding the “disappearance” of a Honduran student, Angel Manfredo Velásquez Rodríguez. According to his family, Velásquez was violently arrested without a warrant on September 12, 1981, accused of political crimes, and later subjected to torture. When Velásquez was “disappeared” from detention, his family brought a complaint to the commission. The court ruled unanimously, on July 29, 1988, to uphold the commission’s case: The Honduran government at least tolerated, and perhaps directed, “disappearances” of its political opponents from 1981 to 1984. The “disappearance” of Manfredo Velásquez was part of this pattern of abuse and therefore a violation of his rights under the ACHR. Although the case focused on one individual, Manfredo Velásquez, the commission and the court took the opportunity to widen the scope of the case to condemn pervasive violations in Honduras. Most of the testimony concerned the pattern of kidnappings and “disappearances” carried out by the Honduran armed forces from 1981 to 1984.
The second case concerned Guatemala, which had not accepted Article 62. The commission, therefore, used the court’s advisory jurisdiction in 1983 to confront Guatemala in the Restrictions on the Death Penalty case, in which lives were at stake. After General Efraín Ríos Montt came to power through a military coup in 1982, new courts of special jurisdiction were created under Decree Law 46-82, which also added to the list of crimes punishable by death. The courts began sentencing people to death.
An on-site visit by the commission in September, 1982, revealed that the accused had no lawyers and were tried in military courts with evidence often obtained under torture. General Montt met with the commission under chair Marco Gerardo Monroy Cabra. Montt noted to the commission that Guatemala had joined the ACHR with a reservation on the death penalty. On April 15, 1983, the commission asked the court for an advisory opinion about the legal issues, despite Guatemala’s protest. As the court convened July 26, 1983, to hear Monroy Cabra introduce the commission’s case, Guatemala informed the court that such executions were being suspended.
Although Latin American members of the ACHR continued to suffer from pervasive poverty and, in many instances, political violence, an extraordinary shift to democratic regimes took place after the ACHR and the court were realized in 1978. At that time, genuine democracies were the exception. By the end of the first decade of the inter-American system, democratic regimes (some troubled) were the rule.
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Blaustein, Albert, Rogers Clark, and Jay Sigler, eds. Human Rights Source Book. New York: Paragon House, 1987. Contains all of the major international and regional human rights documents, including the American Declaration on the Rights and Duties of Man as well as the statute and rules of procedure of the Court of Human Rights. Also has selected constitutions, domestic legislation, and judicial decisions. Index and bibliography. -
Buergenthal, Thomas, Dinah Shelton, and David P. Stewart. International Human Rights in a Nutshell. 3d ed. St. Paul, Minn.: West Group, 2002. A simple but substantive introduction to the history, theory, and practice of international human rights. Indexes. -
Buergenthal, Thomas, Robert Norris, and Dinah Shelton, eds. Protecting Human Rights in the Americas: Selected Problems. Strasbourg, France: International Institute of Human Rights. 1990. Buergenthal was a judge on the Court of Human Rights. This is the first English-language textbook on the Inter-American Human Rights system. The first edition won the 1982-1983 book award from the Inter-American Bar Association. Offers cases and materials on the commission and the court, using the problems approach. Index and bibliography. -
Dykmann, Klaas. Philanthropic Endeavors or the Exploitation of an Ideal? The Human Rights Policy of the Organization of American States in Latin America, 1970-1991. Frankfurt/Main, Germany: Vervuert, 2004. A history of the Inter-American Commission on Human Rights, the Organization of American States, and Latin American human rights generally. Bibliographic references. -
Farer, Tom J., ed. The Future of the Inter-American System. New York: Praeger, 1979. The editor was a member of the commission, and this book was a special project for the American Society of International Law. It provides an excellent background of multiple aspects of the inter-American system, including economics and development, trade, military issues, nuclear proliferation, and human rights. One chapter is on “Human Rights in the Inter-American System.” Index. No bibliography. -
Farer, Tom J., and James P. Rowles. “The Inter-American Commission on Human Rights.” In International Human Rights Law and Practice, edited by James Tuttle. Chicago: American Bar Association, 1978. Explanation of the composition and authority of the commission and how to bring a complaint before the commission, including a model complaint. An appendix contains the regulations of the commission regarding the communication of complaints. -
Gros Espiell, Hector. “The Organization of American States.” In The International Dimensions of Human Rights, edited by Karel Vasak. Vol. 2. Westport, Conn.: Greenwood Press, 1982. Gros Espiell’s chapter highlights the American Convention on Human Rights. Most useful is his diagram comparing the implementation machinery of the European and inter-American systems. Index. Superb fifty-page bibliography on international human rights law. -
Martz, John D., and Lars Schoultz, eds. Latin America, the United States, and the Inter-American System. Boulder, Colo.: Westview Press, 1980. Authors acknowledge the “love-hate” relationship between the United States and its Latin American neighbors. Three chapters specifically cover human rights and U.S. policies, mostly centered on Carter’s years. Index, no bibliography. -
Robertson, A. H. Human Rights in the World. New York: St. Martin’s Press, 1982. Robertson, former director of human rights for the Council of Europe, has a chapter on the American Convention on Human Rights, including sections on the Inter-American Commission and Court. Material is densely informative yet lucidly written. Index, no bibliography. -
Rubin, Barry M., and Elizabeth P. Spiro, eds. Human Rights and U.S. Foreign Policy. Boulder, Colo.: Westview Press, 1979. Contains twenty-one chapters in four sections: global context, U.S. foreign policy, hard cases, and policies. The approach represents a liberal point of view, endorsing the policies of President Carter. Most of the authors, including President Carter himself, are former members of the Carter administration. No index or bibliography.
International League for the Rights of Man Is Founded
American Declaration on the Rights and Duties of Man Is Adopted
United Nations Adopts the Universal Declaration of Human Rights
European Convention on Human Rights Is Signed
Inter-American Commission on Human Rights Is Created
Amnesty International Is Founded
Proclamation of Tehran Sets Human Rights Goals