Inter-American Human Rights System

Authors: Verena Kahl, Walter Arévalo-Ramírez, Andres Rousset-Siri

Required knowledge: Sources of International Law

Learning objectives: Understanding the activity and the scope of the human rights protection bodies and instruments in the Americas.

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A. Historical Context/Introduction

In April 1948, after the end of a devastating Second World War, delegates from 21 countries met in Bogotá, Colombia, in order to strengthen cooperation among American States. In their quest for institutionalization, they created the Organization of American States which today comprises 35 member States. During this Ninth International Conference of American States, the first international human rights instrument of a general nature was adopted, which laid the foundation for the Inter-American Human Rights System: the American Declaration of the Rights and Duties of Man.

While the Inter-American Human Rights System had thereby formally been established even shortly before the Universal Declaration of Human Rights came into being, it took several years before the system actually went into operation. An important driver of this operationalization was the adoption of the American Convention on Human Rights, a legally binding human rights instrument which established the Inter-American Court of Human Rights (IACtHR) as a competent organ alongside the Inter-American Commission on Human Rights (IACHR), which had already been established by a resolution of the OAS in 1959. With regard to institutional safeguards, the Inter-American Human Rights System thus follows a twofold structure, which can also be found in the African Human Rights System and had formerly been applied in the European System of Human Rights.

In comparison to its European and African counterparts, distinguishing features include a unique system of reparations, intensive use of the IACtHR's advisory function and remarkable case law with regard to specific topics, such as indigenous communities, forced disappearance, amnesty laws or environmental rights.

B. Legal Framework

I. American Declaration of the Rights and Duties of Man

The American Declaration of the Rights and Duties of Man (hereinafter "American Declaration" or "Declaration") was signed on 2 May 1948. Following natural law theory, the American Declaration emphasizes that "the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality." Besides traditional civil and political rights, it also comprises economic, social and cultural rights which, for the most part, were at that time not yet part of the signatory States' national legal systems. While the Declaration is not constructed as a treaty and by its nature not legally binding, it has both been considered as a means of interpretation regarding the ACHR and the OAS Charter and even as "a source of international obligations for the Member States of the OAS." In this sense, the American Declaration has served as a yardstick in cases before the IACHR regarding those American countries that have not ratified the ACHR.

II. American Convention on Human Rights

The American Convention on Human Rights (ACHR), also called the "Pact of San José", was adopted during the Inter-American Specialized Conference on Human Rights, which took place 1969 in San Jose, Costa Rica. Pursuant to Art. 74(2), the ACHR entered into force in 1978. Currently, 24 States have ratified the ACHR. in 1998 Trinidad and Tobago denounced the Convention. Venezuela, which had also presented an instrument of denunciation in 2012, decided to re-ratify the Convention in 2019. Although the ACHR is according to Art. 74(1) open to all OAS Member States for signature and ratification, the United States of America, Canada and several other English-speaking countries have not ratified the Convention.

The ACHR can be considered the legal centerpiece of the Inter-American Human Rights System. It is divided into three parts, from which the first enshrines fundamental human rights and corresponding State obligations (Art. 1-32), the second establishes the means of protection (Art. 33-73) and the third consists of general and transitory provisions (Art. 74-82). The main focus of the ACHR lies on the protection of traditional civil and political rights, such as the right to life (Art. 4), the right to humane treatment (Art. 5), the right to personal liberty (Art. 7), the right to a fair trial (Art. 8), the freedom of thought and expression (Art. 13) or the right to judicial protection (Art. 25). However, Art. 26 provides for the progressive and full realization of the rights "implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States."

Besides the rights and freedoms expressly codified in the ACHR, other rights have been read into the Convention through progressive interpretation. Particularly worth mentioning is the right to (know) the truth, whose emergence is related to the systematic practice of forced disappearance in situations of civil war or dictatorship that have for long periods dominated large parts of the Inter-American hemisphere. Its foundation was already laid in the IACtHR's first case, Vélasquez Rodríguez Vs. Honduras. The right to know the truth is based on judicial guarantees anchored in Art. 8 and 25 of the Convention and requires the Member States to ensure, within a reasonable time, "the right of the victim or his or her next of kin to learn the truth about what happened and for those responsible for being punished."

Although second-generation rights had been condensed to a single provision, in recent years Art. 26 ACHR has been used as a door-opener to import economic, social, cultural and environmental rights into the scope of the Convention, including the rights to job security, health, a healthy environment, adequate food, water and take part in cultural life. This progressive approach taken by the IACtHR has been criticized as much as it has been celebrated.

With regard to the institutional framework of the Inter-American Human Rights System, Art. 33 ACHR established the IACHR and the IACtHR as "organs [that] shall have competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to this Convention." The subsequent provisions regulate, among other things, the composition, competencies and procedures before both bodies.

III. Other relevant Instruments

The diversification of international human rights law in the decades following the Universal Declaration of Human Rights has equally taken place in the context of the Inter-American Human Rights System. One reason for this expansion of human rights treaty law is the codification of further rights that had originally not been included in the founding document, either because they were not thought of in the first place or there was a lack of consensus between the Member States to introduce them into the initial agreement. In this sense, the historical process of human rights codification in different subsequent agreements is to a certain extent - with the particular exception of the African Human Rights System - reflected in the concept of human rights generations.

Following this narrative, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, named 'Protocol of San Salvador', which was adopted in November 1988 and entered into force only eleven years later in 1999, enshrines a variety of economic, social and cultural rights, such as the right to work (Art. 6), trade union rights (Art. 8) as well as the rights to health (Art. 10), food (Art. 12) education (Art. 13) and benefits of culture (Art. 14). Furthermore, it also includes a right to a healthy environment (Art. 11) which can be categorized as a so-called solidarity right. A downer of this diversity, however, is that according to Art. 19(6) of the Protocol only the rights codified in Art. 8(1)(a) and Art. 13 are justiciable and therefore open to individual petitions before the IACHR and the IACtHR. Nonetheless, rights excluded from the individual complaint mechanism have been used - either explicitly or implicitly - as means of interpretation of the American Convention, for example in cases related to the rights of indigenous communities. Furthermore, as said before, rights enshrined in the Protocol have been read into the American Convention through Art. 26 ACHR and thereby gained justiciability. So far, 17 States have ratified the Additional Protocol.

Similarly, human rights expansion in international and regional treaty law was directed towards groups that suffer from structural discrimination or generally require specific protection, such as women, BIPoC, persons with disabilities or children. Besides a general agreement on non-discrimination, the Inter-American Convention against all Forms of Discrimination and Intolerance, several other instruments were adopted with regard to specific groups. These include, inter alia, the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, also called "Convention of Belém do Pará", the Inter-American Convention on International Traffic in Minors or the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities. Taking into account the presence of many indigenous communities in the region, the OAS General Assembly has also adopted the American Declaration on the Rights of Indigenous Peoples. While the rights of LGBTI persons have in terms of separate legal instruments only be addressed in the Draft Resolution on Human Rights, Sexual Orientation, and Gender Identity and Expression, specific emphasis has to be put on the evolution of the IACtHR's jurisprudence on the matter in its Advisory Opinion No. 24 on gender identity, equality and non-discrimination with regard to same-sex couples.

Chronologically, the development of the System can be seen in the following instruments:

C. Institutional Framework

I. Inter-American Court of Human Rights

The IACtHR was created as a permanent and autonomous organ of the OAS by the ACHR in 1969. As the Convention did not enter into force until 1978, it took a decade for the Court to make it from paper to an actual operating institution. In 1979, the IACtHR's first judges were elected  and the Court was officially installed in its headquarters in San José, Costa Rica.

1. Composition

According to Art. 52(1) ACHR, the IACtHR is composed of seven judges which have to be OAS Member State nationals and jurists of the highest moral authority and of recognized competence in the field of human rights. They are elected by the OAS General Assembly for a term of six years with the possibility of a single re-election (Art. 54(1) ACHR). With regard to the nomination and election of judges, procedures have long been criticized as non-transparent, closed and opaque. Concerns have been voiced that selection procedures in the Inter-American System of Human Rights are rather shaped and influenced by political interests than to be guided by definitions of merit and qualifications, thereby leading to vote-trading and a lack of adequate participation of non-State actors. In addition, concerns have been raised about a lack of diversity within the Court, pointing to an underrepresentation of women, persons of African descent and individuals belonging to indigenous communities. Since the last election in November 2021, for the first time in the history of the IACtHR there have been three women among the sitting judges .

2. Jurisdiction and Functions

According to Art. 1 of its Statute, the IACtHR is an "autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights." Art. 2 of the Statute describes the functions of the Court as twofold:

First, in the realm of its judiciary or contentious function which is governed by Articles 61 to 63 of the ACHR, the Court has the competence to hear and rule on cases submitted by the IACHR or a State Party of/to the Convention (Art. 61(1) ACHR), provided that the State which is party to the case has recognized the Court's jurisdiction according to Art. 62(3) ACHR and that the procedure before the Commission enshrined in Art. 48 to 50 ACHR has been exhausted (Art. 61(2) ACHR). Currently, 20 States have recognized the jurisdiction of the Court pursuant to Art. 62(1) ACHR. Furthermore, pursuant to Art. 63(2) ACHR, the Court can adopt provisional measures in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons. Based on Art. 68(1) of the Convention, according to which States must undertake to comply with the judgments of those cases to which they are parties, a monitoring unit was established at the Court in... In this sense, unlike its regional counterparts, the IACtHR itself monitors the compliance with its judgments and provisional measures. The procedure for this monitoring is laid down in Art. 69 of the Court's Rules of Procedure.

Second, Art. 64 ACHR provides for an advisory function which allows a) OAS Member States and organs listed in Chapter X of the OAS Charter, including the IACHR, to consult the Court with regard to the interpretation of the ACHR or other treaties concerning the protection of human rights in the American States (Art. 64(1) ACHR), and b) OAS Member States to request an advisory opinion with regard to the compatibility of internal norms with the Convention among others (Art. 64(2) ACHR). Due to a lack of contentious cases during its first years of operation, the IACtHR built its jurisprudence by relying heavily on its responses to requests for advisory opinions. Since then, the Court has regularly made use of this function to - often progressively - interpret the provisions of the American Convention and determine general legal standards that have been used and built upon in following contentious cases.

3. Emblematic decisions

Forthcoming.

4. Reparations

The reparations ordered by the Inter-American Court in its judgments are one of the most relevant features of the Court in the field of international law, due to its length, due to the special position of the victim in its design and due to the intervention of the Court both in the issuance of the measures, as well as in their supervision.

The Inter-American Court holds that reparations are measures tending to eliminate the effects of the violations committed. Their nature and amount depend on the characteristics of the violation and on both the pecuniary and non-pecuniary damage caused.

Currently, the notion of comprehensive reparation is made up of the following variables, restitution, compensation: pecuniary damage - loss of earnings and consequential damages-, non -pecuniary damages, pecuniary damage sustained by the family, costs and expenses, life plan, rehabilitation measures, obligation to investigate the facts that gave rise to the violations and to identify, prosecute and, as appropriate, punish those responsible - search for, identification , determination of cause of death, and return of the remains of those found and identified to the next of kin If that's the case-, measures of satisfaction and guarantees of non-repetition. The Court establishes the terms, the currency of payment and the form of distribution of the compensation in the event of the death of the victim or minor beneficiary, leaving the State's choice of how to comply with the ordered measures.

II. Inter-American Commission of Human Rights

Authors of this section are Walter Arévalo-Ramírez and Andres Rousset-Siri.

The Inter-American Commission is a quasi-judicial organ of the Organization of the American States, created for the supervision and defense of human rights and to serve as consultative organ of the Organization  In the “Viviana Gallardo” case, the former Judge of the Inter-American Court, Piza Escalante pointed out in his reasoned opinion that the Inter-American Commission never has the status of a substantial party, plaintiff or defendant, but always that of a sui generis party, purely procedural, auxiliary to justice, in the manner of a "public ministry" of the inter-American system for the protection of human rights.

The Inter-American Commission fulfills its function of promoting and protecting human rights studying individual petitions, but also through political and diplomatic tools, documenting and denouncing publicly, those patterns of human rights violations even in cases that are not pending before her.

This function leads to many reports that are publicly accessible. Several types of reports are produced by the Commission, country reports; reports where the results of the in loco visit (on-site visit) for OAS states are condensed -Cf. art. 39 and 53 of the Regulations-;thematic reports on specific topics like  Rights of LGBTI Persons, Violence and Discrimination against Women and Girls, corruption, and human rights, Public Policy with a Human Rights Approach, Equality and Non-discrimination; annuals report, which includes data on the processing of petitions, the activities carried out in relation to the Inter-American Court and other human rights bodies.

The Commission has eleven rapporteurships on indigenous peoples, woman, freedom of expression, children, human rights defenders and justice operators, persons deprived of liberty, LGBTI persons, migrants, rights of Afro-descendants and against racial discrimination, older persons, economic, social, cultural, and environmental rights (ESCER) that prepare specialized recommendations addressed to OAS member states and advise the Commission in the processing of petitions.

1. Individual Petitions

The Regional Protection System allows individual petitions (art. 44 ACHR) and interstate communications (ACHR art. 45), except for the difference of the claimant, the following procedure is identical.

The contentious procedure before the Inter-American Commission is divided into four procedural stages: initial processing, admissibility, merits, and referral of the case to the Court.

During the initial processing the Executive Secretariat will receive and process the petitions that are presented to it and those that pass said initial review are notified to the State (arts. 26, 27, 28 and 29.1 IACHR regulations), then, the "admissibility" stage will culminate with a report where the Commission verifies whether it is competent ratione temporis, materiae, loci and personae and if the petition meets the admissibility requirements conventionally required, specially referred to subsidiarity issues  (art. 44 et seq. ACHR and 30 and 36.1 IACHR regulations).

An issue of special relevance in the proceedings before the Inter-American Commission is the possibility of always reaching a friendly settlement agreement that puts an end to the process.

In the Merits stage, if the Commission determines that there is international responsibility, it will issue a preliminary report that will be notified to the State (ACHR art. 50), if within the time period conferred, the State does not comply with the recommendations made by the Commission, it will decide between issuing the report on the merits (ACHR art. 51) and publishing it, or referring the case to the Inter-American Court.

D. Monitoring compliance with judgments

1. Highlights of the IACTHR activity and effectiveness of its judgments.

Compliance with judgments of the Inter-American Court is still relative since, to date, out of 318 judgments, only 35 have been filed for total compliance. The progress of compliance with the measures ordered by the Inter-American court faces two types of problems that can coexist: the normative issue - due to lack of legal regulation within States, and the structural issue - where institutional obstacles arise in the hands of those responsible for compliance with the measure in the domestic sphere, including the ignorance of international law, the lack of prior debate on how to comply with the specific measure of reparation between State agencies, or the political reluctance to comply with their judgments. This, generates a notable gap between jurisdictional decisions and their execution.

2. judgments on supervision.

The 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 (art. 68.2 ACHR).

The supervision of compliance with what is ordered in the judgment falls on the head of the Inter-American Court, which will deploy various actions to accompany this process, ranging from requests for reports to the parties, hearings, recommendations for the induction of compliance to the complaint of the cases of non-compliance with the Organization of American States.

The Inter-American Court issues specific judgments on supervision where it condenses the information collected and progress in compliance, which is then described and compiled in its annual report. Pursuant to Article 65 of the ACHR, the Inter-American Court must submit a report each year to the General Assembly of the Organization of American States in which it indicates -among other things- in a special way the cases in which a State has not complied. In this regard, in the act of reporting on the breach by a State of the sentence, a moral and political sanction is materialized. Likewise, this practice has been the subject of various reproaches, mainly due to the absence of debate within the OAS on issues relating to the non-compliance by some of its member states of the principle pacta sunt servanda and the reparations ordered in the judgments of the Court.

E. The doctrine of "Conventionality Control"

This concept is one of the most recent and most effective efforts of the Inter-American Court of Human Rights to increase the level of compliance with the American Convention.

Conventionality Control is a guarantee designed to obtain the harmonious application of international and domestic law. This control, according to the jurisprudence of the Inter-American Court includes all the organs of the State, at all levels, within the framework of their competences; It encompasses both the ACHR as well as other treaties such as the Inter-American Convention on Forced Disappearance of Persons; It also includes the decisions of the Inter-American Court both in its contentious and advisory jurisdiction and allows the repeal of internal regulations incompatible with the ACHR, but at the same time it functions as a parameter to eradicate practices contrary to the values ​​that inspired the Convention.

The doctrine of Conventionality control is essentially, a judicial creation. The concept has been developed and expanded in key judgments in the history of Inter-American Court. It was first developed in the reasoned concurring opinion of Judge Sergio García-Ramírez in the merits judgment for the “Mack Chang v.  Guatemala” case:

“For the  effects  of the  American Convention and of the exercise of the contentious jurisdiction of the Inter-American Court, the State is considered integrally, as a whole. Accordingly, responsibility is global, it concerns the State as a whole and cannot be subject to the division of authority established  n domestic law. At the international level, it is not possible to divide the  State, to bind before the Court only one or some of its organs, to grant them representation of the State in the proceeding – without this representation affecting the whole State – and excluding other organs from this treaty regime of responsibility, leaving their actions outside the “treaty  control” (control de convencionalidad) that involves the jurisdiction of the international  court”

Two years later, in the “Almonacid Arellano” case , The Court, for the first time, used the notion in the reasoning of one of its decisions:

“The Court is aware that domestic judges and  courts are bound  to respect the rule of  law, and therefore,  they are bound to apply the provisions  in force within  the legal system. But when a State has ratified  an international  treaty such  as  the American Convention,  its judges, as part  of the State, are also  bound by such Convention.  This forces  them to see that all the effects of  the provisions embodied in the  Convention are not adversely affected  by the enforcement of laws  which  are contrary to its  purpose and that have  not  had any legal effects since  their inception. In other words, the Judiciary must exercise a sort  of “conventionality  control” between  the domestic legal provisions  which are applied to specific cases and the American Convention on  Human Rights. To perform this  task, the Judiciary has to take into account  not only  the treaty,  but  also the interpretation thereof made by  the Inter-American  Court, which  is  the ultimate  interpreter of  the American Convention” (p. 124).

From the paragraphs cited above, it has been understood that the Inter-American  Court recognizes two types of conventionality control:The first type, known as “internationally performed Conventionality control” (control de convencionalidad en sede internacional) is carried out by the Judges of the Inter-American Court during proceedings under the jurisdiction of the System, and implies the confrontation of the state conduct and the contents of the American Convention, triggering when the Inter-American Court, as part of its decisions, orders the suspension, revision or withdrawal or domestic norms of the State, including not only bills, but also administrative acts, case-law, administrative or judicial orders and practices that are in violation of the American Convention on Human Rights. The scope of this first kind of conventionality control, was clarified in the separate concurring opinion of Judge Sergio Garcia-Ramirez, in the merits judgment of the “Tibi” case:

“In  a  certain sense,  the  task of  the  Court is  similar  to that  of  the constitutional courts.  The  latter examine  the  challenged acts  –decisions  with a  general  scope- in  light of  the legal  standards,  principles, and  values  of  the  basic laws of the State.  The  Inter-American  Court, in turn,  analyzes  the acts  that  are brought  before  it in  connection  with the  legal standards,  principles, and  values  of  the  treaties on  which  it bases  its  adjudicatory jurisdiction.   In other words, if constitutional courts oversee “constitutionality,” the international human rights  court decides  on  the “conventionality”  of  those acts.  By controlling constitutionality, the domestic bodies seek to ensure that activities of the public authorities –and, perhaps, of other social agents-  are in accordance with the order that is inherent to the  Rule of  Law  in  a  democratic society.    The Inter-American Court, in turn,  seeks  to ensure  that  this activity  is  in accordance  with  the international  order  set forth in  the  Convention that  founded  the inter-American  jurisdiction  and was  accepted  by the States  Parties  exercising their  sovereignty” (p.3)

The second type, known as national conventionality control, implies that every organ or agent of the State is capable to perform a control of conventionality to the extent of is competences, and the purpose of this control is that any State authorities must not apply a norm contrary to the Convention, and also, that they must interpret and apply all domestic laws in a way that complies with the Convention, its protocols and the Inter-American case-law, and to discard those "interpretations" that are contrary or incompatible with any conventional parameter.

This national conventionality control, (also referred as “diffused control” (control difuso) in the sense that the competence of controlling the acts of the State vis-à-vis the Convention is diffused, disseminated in all the organs and agents of the State), according to the jurisprudence of the Inter-American Court, includes all organs of the State, at all territorial, regional or national levels, within the framework of their competences; It encompasses both the ACHR as well as other treaties such as the Inter-American Convention on Forced Disappearance of Persons; It also includes the resolutions of the Inter-American Court both in its contentious and advisory jurisdiction and allows the repeal of internal regulations incompatible with the ACHR, but at the same time it functions as a parameter to eradicate practices contrary to the values ​​that inspired the Convention.

National conventionality control encourages State’s agents to apply international law, disregard domestic laws that collides with the Inter-American Convention and to go as far their national competences can take them, in order to solve a collision between national law and the Convention, for example, a local police officer could decide not to apply a regulation that the finds contrary to the Convention, but only the national congress, or a national court might have the competence to derogate such law, all the State’s organs and agents are responsible for fulfilling their competence. In the “Urrutia Laubraux” case, the Court stated: “the control of conventionality has been conceived as a mechanism to apply international law, in this case international human rights law, and specifically the American Convention and its sources, including the case law of this Court.” (p.93)

F. Outlook/Criticism/Challenges

Forthcoming.

Further Readings

• Abello‐Galvis R, Arevalo‐Ramirez Walter. Inter‐American Court of Human Rights Advisory Opinion OC‐23/17: Jurisdictional, procedural and substantive implications of human rights duties in the context of environmental protection. RECIEL. 28 (2019): 217–222
• Arevalo‐Ramirez, Walter; Rousset, Andrés. “Inter-American Commission on Human Rights (IACHR) and Inter-American Court of Human Rights (IACtHR).” In Oxford Bibliographies in International Law. Ed. Tony Carty. New York: Oxford University Press, (2021)
• Faúndez Ledesma, Héctor, The Inter-American System for the Protection of Human Rights. Institutional and procedural aspects, 3ª ed. San José: Instituto Interamericano de Derechos Humanos (IIDH), 2007.
• García Ramírez, Sergio, Panorama de la jurisprudencia interamericana sobre derechos humanos, 1° ed., México: Comisión Nacional de los Derechos Humanos, 2018.
• Burgorgue Larsen, Laurence y Úbeda de Torres, Amaya, The Inter-American Court of Human Rights. Case Law and commentary, 1° ed., Oxford: Oxford University Press, 2011
• Von Bogdandy, Armin, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flavia Piovesan, and Ximena Soley, Transformative Constitutionalism in Latin America, The Emergence of a New Ius Commune, Oxford: Oxford University Press, 2017
• Rousset Siri, Andrés, Protección a los Derechos Humanos: Análisis crítico sobre el acuerdo de solución amistosa en el Sistema Interamericano. Buenos Aires: Euros BdeF, 2016.  
• Pasqualucci, Jo M, The practice and procedure of the inter-american court of human rights, Cambrige: Cambridge University Press, 2003.
• Garcia-Matamoros, Laura Victoria y Arévalo-Ramírez, Walter, “Desarrollos recientes sobre daños punitivos en el derecho continental, en el Common law, en el sistema interamericano de Derechos Humanos y en el Derecho internacional”. Universidad del Externado, Rev. de Derecho privado, N° 37, julio-diciembre (2019): 183-217. 
• Soley, Ximena and Steininger, Silvia. Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights. Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018-01