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The Inter-American Court of Human Rights

Published online by Cambridge University Press:  27 February 2017

Thomas Buergenthal
Thomas Buergenthal*
Affiliation:
Inter-American Court of Human Rights
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Extract

The Inter-American Court of Human Rights has drafted its Statute, adopted its Rules of Procedure, negotiated its headquarters agreement, and so far dealt with its first case. It is timely, therefore, to describe the Court’s institutional framework and to analyze its jurisdiction. A more extensive study, of course, will have to await its developing case law.

Type
Research Article
Information
American Journal of International Law , Volume 76 , Issue 2 , April 1982 , pp. 231 - 245
Copyright
Copyright © American Society of International Law 1982

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References

1 Government of Costa Rica (In the Matter of Viviana Gallardo et al.), Inter–American Court of Human Rights, Decision of Nov. 13, 1981, reprinted in 20 ILM 1424 (1981). For the Preliminary Ruling in this case, see Decision of July 22, 1981, reprinted in id. at 1057.

2 The American Convention on Human Rights [hereinafter cited as Convention] was opened for signature in San José, Costa Rica, on Nov. 22, 1969, and entered into force on July 18, 1978. For the official text, see Organization of American States, Handbook of Existing Rules Pertaining to Human Rights [hereinafter cited as Handbook] 27, OEA/Ser.L/V/11.50, doc. 6 (1980). The text as it appears in OAS, Official Records, OEA/Ser.K/XVI/1.1, doc. 65, Rev.1, Corr. 2 (1970), is reprinted in 9 ILM 673 (1970).

As of January 1982, the following OAS member states had ratified the Convention: Barbados, Bolivia, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Peru, and Venezuela.

On the American Convention in general, see Symposium: The American Convention on Human Rights, 30 Am. U.L. Rev. 1–187 (1980); Frowein, , The European and the American Conventions Human on Rights—A Comparison, 1 Human Rights L.J. 44 (1980)Google Scholar; Sohn, L. & Buergenthal, T., International Protection of Human Rights 1356–74 (1973)Google Scholar; Fox, , The American Convention on Human Rights and Prospects for United States Ratification, 3 Human Rights (ABA) 243 (1973)Google Scholar; Buergenthal, , The American Convention on Human Rights: Illusions and Hopes, 21 Buffalo L. Rev. 121 (1971)Google Scholar. For a study of the Court, see Abranches, , The Inter-American Court of Human Rights, 30 Am. U.L. Rev. 79 (1980)Google Scholar.

3 Convention, Art. 52.

4 Id., Art. 53. On this subject, see Buergenthal, , The American and European Conventions on Human Rights: Similarities and Differences, 30 Am. U.L. Rev. 155, 157–59 (1980)Google Scholar.

5 Convention, Art. 54.

6 The following were elected in the first election: Thomas Buergenthal (U.S.), Máximo Cisneros (Peru), Huntley Eugene Munroe (Jamaica), César Ordóñez (Colombia), Rodolfo Piza (Costa Rica), Carlos Roberto Reina (Honduras), and M. Rafael Urquía (El Salvador). Judge Urquía resigned shortly after his election and was succeeded by Judge Pedro Nikken of Venezuela, who was elected in October 1979.

7 Convention, Arts. 52–73.

8 For the text of the Statute [hereinafter cited as Statute], see Handbook, supra note 2, at 105, and Annual Report of the Inter–American Court of Human Rights to the General Assembly, 1980 [hereinafter cited as Annual Report] 16, OEA/Ser.L/V/111.3, doc. 13, Corr. 1 (1981). The Statute is reprinted in 19 ILM 635 (1980).

9 Annual Report, supra note 8, at 26, reprinted in 20 ILM 1289 (1981).

10 Convention, Art. 60.

11 For the text of the draft Statute, see OEA/Ser.P, AG/doc.1112/79 (Oct. 10, 1979). For the report detailing the reasons for some of the changes, see Informa del Relator de la Primera Comisión—Asuntos Jurídicos y Político, OEA/Ser.P, AG/doc.1198/79 (Oct. 31, 1979).

12 See Statute, Art. 31, which reads as follows: “The present Statute may be amended by the OAS General Assembly, at the initiative of any member state or of the Court itself.”

13 Convention, Art. 58(1).

14 OAS GA Res. 372 (XIII-0/78), OEA/Ser.P, AG/doc.1020/78, Rev.2, at 97 (1978).

15 Convention, Art. 58(1).

16 Statute, Art. 27(1). The Court’s power to conclude similar agreements with other governments and entities is spelled out in Articles 27(2), 28, and 29 of the Statute.

17 See Articles 20 and 22 of the draft Statute, supra note 11. The Court’s draft also contained an alternative possibility, envisaging a system in which the judges would devote 50% of their time to the work of the Court. See draft Statute (Alternative), Arts. 21, 22, and 23. The Convention provides that these issues are to be regulated by the Court’s Statute. Convention, Art. 72.

18 Statute, Art. 18.

19 The judges receive a per diem and an honorarium for each day of service rendered to the Court.

20 The Court now holds two regular sessions and such special sessions as may be necessary. See Statute, Art. 22; Rules of Procedure, supra note 9, Arts. 11 and 12.

21 It is worth noting, in this connection, that a permanent court is not a concept new to the Americas. The Central American Court of Justice, which was established in that region in 1908, required its judges not to exercise any other profession and barred them from holding public office. See Hudson, M., The Permanent Court of International Justice 1920–1942, at 46 (1943)Google Scholar.

22 Statute, Art. 12.

23 The fact that the first two Presidents of the Court have been Central Americans appears to be a mere coincidence.

24 Rules of Procedure, supra note 9, Art. 6(1).

25 Ibid.

26 Convention, Art. 58(2); Statute, Art. 14; Rules of Procedure, supra note 9, Art. 7(2).

27 Statute of the Inter–American Commission on Human Rights, Art. 21, Handbook, supra note 2, at 95.

28 Convention, Art. 59.

29 See European Convention on Human Rights, ETS 5, [1953] Gr. Brit. TS No. 71 (Cmd. 8969), Art. 43; A. H. Robertson, Human Rights in Europe 202–03 (2d ed. 1977).

30 Statute, Art. 6(3). See also id., Art. 19(4).

31 Convention, Art. 55.

32 Article 52 of the Convention provides that the judges must meet the following qualifications: they must be “jurists of the highest moral authority”; they must have “recognized competence in the field of human rights”; and they must “possess the qualifications required for the exercise of the highest judicial functions” either in the state of their nationality or the state nominating them. Cf. Gross, , The International Court of Justice: Consideration of Requirements for Enhancing its Role in the International Legal Order, 65 AJIL 253, 295–99 (1971)Google Scholar.

33 Statute, Art. 10(4).

34 Convention, Art. 62.

35 Id., Art. 64. See further p. 242 infra.

36 Convention, Art. 62(1).

37 Id., Art. 62(2).

38 See, in this connection, Article 47(3) of the Regulations of the Inter-American Commission on Human Rights [hereinafter cited as Commission Regulations], Handbook, supra note 2, at 117, which expressly authorizes the Commission to give that option to states that have not accepted the Court’s jurisdiction.

39 Convention, Art. 61(2).

40 Id., Arts. 44 and 45; Buergenthal, supra note 4, at 159–61; Frowein, supra note 2, at 62–63. See also Volio, , The Inter–American Commission on Human Rights, 30 Am. U.L. Rev. 65 (1980)Google Scholar; Farer, & Rowles, , The Inter–American Commission on Human Rights, in International Human Rights Law and Practice 47 (Tuttle, J. ed. 1978)Google Scholar.

41 Convention, Art. 44. On this subject generally, see Norris, , Bringing Human Rights Petitions Before the Inter–American Commission, 20 Santa Clara L. Rev. 733 (1980)Google Scholar.

42 Convention, Art. 45(1) and (2).

43 Article 44 of the Convention does not impose the requirement that the petitioner be a victim of the violation or that he have some other interest in the case. That the Inter–American Commission interprets the Convention as permitting an actio popularis petition is readily apparent from its rules of procedure. See Commission Regulations, supra note 38, Art. 29(6). It might be noted, too, that Article 44 of the Convention speaks of a “violation of this Convention by a State Party” and not merely of a “violation of a human right set forth in this Convention,” which is the language found in Article 45, the provision that deals with interstate complaints. Whether this difference in wording means that the scope of the right of individual petition is wider than that of the interstate complaint remains to be seen.

44 Convention, Art. 48(1)(a).

45 These preconditions are set out in Articles 46 and 47 of the Convention, which read as follows:

Article 46

1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements:

a. that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law;

b. that the petition pr communication is lodged within a period of six months from the date on which the party alleging violation of his rights was notified of the final judgment;

c. that the subject of the petition or communication is not pending in another international proceeding for settlement; and

d. that, in the case of Article 44, the petition contains the name, nationality, profession, domicile, and signature of the person or persons or of the legal representative of the entity lodging the petition.

2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when:

a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;

b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or

c. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.

Article 47

The Commission shall consider inadmissible any petition or communication submitted under Articles 44 or 45 if:

a. any of the requirements indicated in Article 46 has not been met;

c. the statements of the petitioner or of the state indicate that the petition or communication is manifestly groundless or obviously out of order; or

b. the petition or communication does not state facts that tend to establish a violation of the rights guaranteed by this Convention;

d. the petition or communication is substantially the same as one previously studied by the Commission or by another international organization.

For analysis of these provisions, see Norris, supra note 41, at 742–44.

46 Convention, Art. 48(1)(d) and (e).

47 Id., Art. 48(1)(f). The settlement must be made on the basis of “respect for the human rights recognized in this Convention.”

48 Article 49 of the Convention deals with cases in which a friendly settlement has been reached. It reads as follows:

If a friendly settlement has been reached in accordance with paragraph 1.f of Article 48, the Commission shall draw up a report, which shall be transmitted to the petitioner and to the States Parties to this Convention, and shall then be communicated to the Secretary General of the Organization of American States for publication. This report shall contain a brief statement of the facts and of the solution reached. If any party in the case so requests, the fullest possible information shall be provided to it.

49 Convention, Art. 50(1). This report must be drawn up within a period of 180 days following the Commission’s failure to obtain a friendly settlement. Statute of the Commission, Art. 23(2), Handbook, supra note 2, at 95.

50 Convention, Art. 50(2).

51 Id., Art. 50(3).

52 Id., Art. 51(1). If the case is not referred to the Court within the above–mentioned period, the Commission “may, by the vote of an absolute majority of its members, set forth its opinion and conclusions concerning the questions submitted for its consideration.” Note the word “may,” which suggests that the Commission need not adopt this report. If it fails to do so, the case is presumably silently dropped since the earlier stage-three report, adopted by the Commission pursuant to Article 50 of the Convention, may be transmitted only to the states concerned, which are not at liberty to publish it. Id., Art. 50(2). But if the Commission does adopt the stage-four report and makes appropriate recommendations to the state concerned, it must also prescribe a period of time within which the state is to remedy the situation in question. Once that period has expired, the Commission must “decide by the vote of an absolute majority of its members whether . . . to publish its report.” Id., Art. 51.

53 On the privileges and immunities of the judges, see id., Art. 70.

54 Id., Art. 62(3).

55 See Government of Costa Rica (In the Matter of Viviana Gallardo et al.), Decision of Nov. 13, 1981, reprinted in 20 ILM 1424 (1981).

56 Id., para. 25.

57 Convention, Art. 68(1).

58 Id., Arts. 63(1) and 68(2).

59 On this subject generally, see Szasz, , Enhancing the Advisory Competence of the World Court, in 2 The Future of the International Court 499 (Gross, L. ed. 1976)Google Scholar.

60 The American Declaration on the Rights and Duties of Man was adopted as Resolution XXX by the Ninth International Conference of American States, which was held in Bogotá, Colombia from March 30 to May 2, 1948. The text is reprinted in Handbook, supra note 2, at 17.

61 Article 1(2)(b) of the Statute of the Commission declares that in relation to states that have not ratified the Convention “human rights are understood to be . . . the rights set forth in the American Declaration.” See also Statute of the Commission, Art. 20, and Commission Regulations, Art. 23, Handbook, supra note 2, at 95 and 117, respectively, which deal with the right of the Commission to handle petitions directed against these states. See Norris, supra note 41, at 735–38.

62 This view, first expounded by Buergenthal, , The Revised OAS Charter and the Protection of Human Rights, 69 AJIL 828 (1975)CrossRefGoogle Scholar, has now been accepted by the Inter–American Commission on Human Rights. Case No. 2141 (United States of America), Res. 23/81 of March 6, 1981, OAS/Ser.L/V/11.52, doc. 48, para. 16 (1981).

63 It remains to be seen what relevance attaches to Article 29(1) of the Convention, which declares that “no provision of this Convention shall be interpreted as . . . excluding or limiting the effect that the American Declaration of the Rights and Duties of Man . . . may have.” On the relationship between the Convention and the Declaration, see Buergenthal, supra note 2, at 131–34.

64 Here the Court’s advisory jurisdiction could perform a role similar to that performed by the Court of Justice of the European Communities under Article 177 of the EEC Treaty. See Schermers, H., Judicial Protection in the European Communities 288–330 (1976)Google Scholar. See also Stein, , Lawyers, Judges, and the Making of a Transnational Constitution, 75 AJIL 1 (1981)Google Scholar; Caflisch, , Reference Procedures and the International Court of Justice, in Gross, supra note 59, at 572 Google Scholar. Cf. Buergenthal, , Interaction of National Law and Modern International Agreements: Some Introductory Observations, 18 Am. J. Comp. L. 233 (1970)CrossRefGoogle Scholar; Buergenthal, , International and Regional Human Rights Law and Institutions: Some Examples of Their Interaction, 12 Tex. Int’l L.J. 321 (1977)Google Scholar.

65 The Court has the power to conclude such agreements. See Statute, Art. 27(2).

66 Cf. Fisher, R., Improving Compliance with International Law 105 (1981)Google Scholar

67 The fact that only four states have thus far accepted the jurisdiction of the Court should not be seen as a bad omen. After all, it took about 5 years after the European Convention on Human Rights entered into force to obtain the eight acceptances of its jurisdiction, which were a prerequisite for the establishment of the European Court. See European Convention on Human Rights, supra note 29, Art. 56; A. H. Robertson, supra note 29, at 195–96. Cf. Henkin, L., How Nations Behave 186–88 (2d ed. 1979)Google Scholar.