Inter-American Commission and Court of Human Rights

The Organization of American States (OAS) created the Inter-American Commission on Human Rights in 1959 by resolution of the Fifth Meeting of Consultation of Ministers of Foreign Affairs. The commission's function originally was to promote respect for the human rights set forth in the American Declaration of the Rights and Duties of Man, approved by the OAS in 1948. Over time, the mandate of the commission expanded and its legal status was enhanced when it became a formal organ of the OAS in 1970.

Today, the Inter-American Commission on Human Rights is the principal OAS organ to promote the observance and protection of human rights and serve as a consultant to the OAS on human rights matters. The commission also has specific competence over matters relating to the fulfillment of obligations undertaken by states parties to all human rights conventions adopted in the regional framework (with the exception of the Convention on Persons with Disabilities, which creates a separate supervisory committee). Details of the functions and procedures of the commission are contained in its statute and regulations.

The commission consists of seven independent experts elected to four-year terms by the OAS General Assembly. It is based in Washington, D.C., and is assisted by a secretariat headed by an executive secretary. Funding for the commission comes from the OAS budget. Commission sessions are normally held in Washington, D.C., but they also may be held in cities in other member states. During its sessions, the commission holds hearings during which, on request, it hears from individuals and representatives of human rights organizations and states.

Article 33 of the American Convention on Human Rights lists the Commission and the Inter-American Court of Human Right as the organs having "competence with respect to matters relating to the fulfillment of the commitments made by States Parties to [the] Convention." The court also has some functions extending to all OAS member states and to parties to the Convention on Violence against Women and the Disappearances. The court consists of seven judges, nominated and elected for six-year terms by the parties to the American Convention. Judges may be re-elected once. The court's functions and procedures are set forth in the American Convention and its Statute and Rules of Procedure. The court's permanent seat is in San Jose, Costa Rica.

The commission operates through thematic or country studies concerning human rights issues and by considering petitions . Provided that the formal and substantive requirements are met, individuals or groups may file a petition with the commission against any state that violates its human rights obligations. For states that are not party to the convention, the recognized rights are those contained in the American Declaration. For parties to the American Convention, the rights contained in the convention are protected in relation to all events that occur after the date of ratification , including continuing violations that may have begun prior to that date.

In processing petitions, the commission is directed to attempt a friendly settlement and may undertake a mission on site or hold hearings if it deems it necessary and appropriate. Commission practice commonly includes informal visits to a country by the commissioner who is the rapporteur for the country along with a staff attorney. The visits typically concern more than one case and are directed at fact finding, obtaining evidence or engaging the parties in friendly settlements. The petition process may result in a commission decision on the merits, together with specific recommendations to the state concerned. The commission may call for the state to pay appropriate compensation when it finds a violation has occurred, but it does not itself set the amount of compensation it views as appropriate.

In serious and urgent cases, the commission may, on its own initiative or as requested by a party, request that the state concerned adopt precautionary measures to prevent irreparable harm to persons. The commission may request information from the parties on any matter related to the adoption and observance of the precautionary measures. The commission may also request that the court order provisional measures in urgent cases that involve danger to persons. Precautionary measures have become very important in the commission's practice. Such measures have been sought to protect witnesses and petitioners from violence or to conserve evidence.

For the Inter-American Court to have jurisdiction over an individual case, the state concerned must be a party to the American Convention and have accepted the optional jurisdiction of the court; proceedings before the commission must be completed, and the case must be referred by the commission or the state concerned within three months after the commission has completed its work on the case. An individual petitioner cannot invoke the court's jurisdiction.

Under the rules of the commission, there is a presumption that all cases should go to the court if the commission has found one or more violations and the responsible state has not complied with the commission's recommendations within the time period specified by the commission. A reasoned decision by an absolute majority of the commission is required to withhold such a case from the court. The position of the petitioner can be influential in this respect. Other factors that the commission may consider include the nature and seriousness of the violation, the need to develop or clarify case law, the future effect of the decision on member states, and the quality of the evidence. If the court finds a violation of the convention, it may order that the situation be remedied and may award compensation to the injured party. States are legally obliged to comply with a judgment of the court, and a remedial order may be enforced in the appropriate domestic courts.

As with other human rights institutions around the world, the Inter-American bodies exercise influence through the compelling moral claim of human rights, through careful fact finding of human rights violations, and through public pressure. Both the commission and the court have follow-up procedures to monitor compliance with their decisions and judgments. The binding nature of the court's judgments enhances compliance, which has generally

been good thus far. At the same time, the commission and court suffer from lack of human and financial resources coupled with a growing caseload. An absence of political will to confront human rights abuses, observed on the part of some OAS member states, also hampers the work of the commission and court to achieve more effective realization of internationally guaranteed human rights.

The first cases successfully brought to the Inter-American Court were originally filed at the Inter-American Commission by a Honduran non-governmental organization and concerned Honduran disappeared persons. Decisions on the Honduran cases were reached in 1988 and 1989. In 2003, the Inter-American Commission submitted fifteen cases to the Inter-American Court of Human Rights. This compares with only four cases submitted five years before in 1998. In an appraisal written in 1999 one scholar lauds the Court:

[I]ts orders have compensated victims and their families, secured lives and physical integrity, freed persons unjustly imprisoned, and led to reforms of national laws and judicial doctrine. Its opinions articulate a jurisprudence of fundamental rights that placed the inherent dignity of human persons … at the center of law. (Cassel 1999, p. 175)

See also: American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.

bibliography

Buergenthal, Thomas, and Dinah Shelton. Protecting Human Rights in the Americas: Cases and Materials. 4th ed. Arlington, VA: N. P. Engel, 1995.

Buergenthal, Thomas, Dinah Shelton, and David Stewart. International Human Rights in a Nutshell. 3rd ed. Eagan, MN: West Publishing, 2002.

Cassel, Douglass. "Peru Withdraws from the Court: Will the Inter-American Rights System Meet the Challenge?" Human Rights Law Journal 20, nos. 4–6 (1999):167–175.

Medina-Quiroga, Cecilia. The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System. Dordrecht, The Netherlands, Martinus Nijhoff, 1988.

Dinah Shelton