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Inter-American Human Rights System

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



Required knowledge: Sources of International Law; Human Rights Law Beneficial: Indigenous Peoples; TWAIL and Decolonisation

Learning objectives: to understand the activity and the scope of the human rights protection bodies and instruments in the Americas

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A. Introduction

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This part of the chapter was written by Verena Kahl.



In April 1948, after the end of a devastating Second World War, delegates from 21 countries met in Bogotá, Colombia, 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 the Ninth International Conference of American States, the first international human rights instrument of a general nature was adopted,[1] 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.[2] Besides this institutional setting, it is important to note that the Inter-American Human Righs System developed in the context of long lasting dictatorships and civil wars in the region, which also shaped the System's case law through systematic and gross human rights violations from that era, such as forced disappearance and extrajudicial executions.[3]

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. One of the main challenges of the Inter-American System is, besides continuous financial constraints,[4] to find an adequate position in the balancing act between progressive human rights protection on the one hand and member State protest,[5] which can go as far as turning away from the system itself.[6]

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This part of the chapter was written by Verena Kahl.



I. American Declaration of the Rights and Duties of Man

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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,[7] the American Declaration emphasizes that "the essential rights of [a hu]man are not derived from the fact that he[*she] is a national of a certain state, but are based upon attributes of his[*her] 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.[8] 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[9] and even as "a source of international obligations for the Member States of the OAS."[10] 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.[11]

II. American Convention on Human Rights

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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 in 1969 in San José, 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 centrepiece 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), 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.[12] Its foundation was already laid in the IACtHR's first case, Velásquez Rodríguez Vs. Honduras.[13] 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."[14]

Although second-generation rights had been condensed to a single provision,[15] recently 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,[16] health,[17] a healthy environment,[18] adequate food,[19] water[20] and take part in cultural life.[21] This progressive approach taken by the IACtHR has been criticized[22] as much as it has been celebrated.[23]

III. Other relevant Instruments

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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 connecting to the historical process of human rights codification in different subsequent agreements, which 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' was adopted in November 1988 and entered into force only eleven years later in 1999.

Advanced: The San Salvador Protocol and the Promotion of DESCA

The San Salvador Protocol enshrines a variety of so-called DESCA[24] ('derechos económicos, sociales, culturales y ambientales' = economic, social, cultural and environmental 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 has also been categorized as a solidarity right.[25] 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.[26] 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.[27] Furthermore rights enshrined in the Protocol have been read into the American Convention through Art. 26 ACHR and thereby gained direct 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 (or QUILTBAG+) 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.

Advanced: Application of the Convention of Belém do Para to trans women

In the Case of Vicky Hernández et al. v. Honduras the IACtHR confirmed that the Convention of Belém do Para also applied to trans women.[28] In particular, the Court held that violence against women based on their gender, to which Art. 1 of the Belém do Para Convention refers, is built 'on a system of patriarchal domination deeply-rooted ingender stereotypes and constitutes a “manifestation of the historically unequal power relations between women and men”' and that '[v]iolence against persons based on gender identity or expression, and specifically against trans women, is also based on gender, as a social construct of the identities, attributes and roles that society assigns to women and men.'[29] In this sense, even though gender identity is not mentioned explicitly as vulnerability criteria listed in the Convention, according to an evolutive interpretation 'gender identity constitutes a factor that may contribute, intersectionally, to the vulnerability of women to gender-based violence.'[30] As a result, 'in the sphere of application of the Inter-American Convention for the Prevention, Punishment and Eradication of Violence against Women, there is also a reference to situations of gender-based violence against trans women.'[31] In this case, judge Elizabeth Odio Benito issued a controversial partially dissenting opinion.[32]


C. Institutional Framework

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I. Inter-American Court of Human Rights

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This part of the chapter was written by Verena Kahl.



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

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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). 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.[33]

Advanced: Critique to election procedure

With regard to the nomination and election of judges, procedures have long been criticized as non-transparent, closed and opaque.[34] 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.[35] 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.[36]


2. Jurisdiction and Functions

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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 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). For cases to reach the IACtHR States must 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. According to Art. 67 and 68(1) of the Convention, States must undertake to comply with the judgments of those cases to which they are parties. Thereupon, both the Court and the Commission have developed an innovative network of institutions and procedures to supervise compliance with corresponding decisions.[37] As regards the IACtHR,[38] mediums of monitoring include the request for information, monitoring hearings, on-site visits and issuing orders on monitoring compliance.[39] Furthermore, the Court has also used informal meetings with State agents or delegations and the involvement of domestic institutions and organs for monitoring purposes.[40] In this sense, unlike its regional counterparts,[41] the IACtHR itself monitors the compliance with its judgments and provisional measures.[42] 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.[43] 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.[44]

3. Emblematic decisions

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While each of the more than 500 contentious cases and advisory opinions has its individual characteristics and significance, at least some of the topics and corresponding decisions should be highlighted, which reflect main struggles and achievements and/or new jurisprudential developments in the human rights context of the region and beyond, some of which have already been highlighted above, e.g. concerning forced disappearance or the rights of persons of the QUILTBAG+ community.

As regards the aforementioned development of DESCA in the sphere of environmental protection, the intensive greening of the rights to life and personal integrity (Arts 4 and 5 ACHR) by means of principles originally stemming from international environmental law in the realm of Advisory Opinion No. 23[45] and the following Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina,[46] where the Court for the first time found a violation of the autonomous right to a healthy environment, should not go without mentioning.

Advanced: Advisory Opinion on the Climate Emergency and Human Rights

Following the rather recent trend of important environmental-related decisions of the IACtHR, Chile and Colombia filed a detailed request for an advisory opinion on the climate emergency and human rights in January 2023 covering a broad range of topics, such as preventive standards, the right to life, children's rights, human rights defenders and shared but differentiated responsibilities.[47] The corresponding decision will add an important perspective from the Global South to regional but also global developments in the field of human rights obligations in the context of climate change.


The Court has further contributed outstanding standards regarding the rights of indigenous communities,[48] particularly over their ancestral lands and natural resources, and corresponding State obligations, such as the creation of an effective mecanism for the delimitation, demarcation and titling of the ancestral territories[49] or the duty to consult with the indigenous community and, if applicable, obtain its free, prior and informed consent in the case of projects (potentially) affecting their ancestral lands.[50] Emblematic cases include, inter alia, Case of the Yakye Axa Indigenous Community v. Paraguay, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Case of the Saramaka People. v. Suriname, Case of Kichwa Indigenous People of Sarayaku v. Ecuador and Case of the Xákmok Kásek Indigenous Community. v. Paraguay.[51]

In light of the region's historical experiences with dictatorships and violent conflicts, the IACtHR's jurisprudence on amnesty laws should also be referenced here. In its landmark decision in the Case of Barrios Altos v. Peru the IACtHR held for the first time that self-amnesty laws on serious human rights violations were manifestly incompatible with the American Convention and therefore lacked legal effect,[52] a case that was followed by further important decisions, such as, Case of Almonacid Arellano et al. v. Chile, Case of Gomes Lund et al. ("Guerrilha do Araguaia") v. Brazil and Case Gelman v. Uruguay.[53]

4. Reparations

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The great variety of reparatory measures[54] ordered by the IACtHR[55] can be considered as a distinguishing feature of its jurisprudence.[56] In this sense, the Court has understood Art. 63(1) ACHR, which inter alia stipulates that it 'shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party', conceding it the competence to chose between a broad variety of remedies to address the particular harm occurred.[57] Since 2007,[58] remedial measures ordered by the IACtHR are twofold in terms of categories: monetary compensation for pecuniary and non-pecuniary damage on the one side and measures of satisfaction and guarantees of non-repetition on the other side.[59] Pecuniary damage refers to 'the loss or detriment to the income of the victims, the expenses incurred due to the facts and the pecuniary consequences that are causally linked to the facts of the case',[60] while non-pecuniary damage involves 'injurious effects of the facts of the case that are not financial or patrimonial in nature', including the 'suffering and affliction caused to the direct victims and their relatives, detriment to the persons’ very significant values, and non-pecuniary alterations to the conditions of life of the victim or his family.'[61]

For an integral reparation to the victims, the non-pecuniary damage can be compensated through i) the payment of a financial amount or the delivery of goods of significant value to be determined by reasonable application of legal descretion and fairness, and/or through ii) acts or civil works of a public nature (or with corresponding public impact) that serve 'the recovery of the victims' memory, acknowledgement of their dignity, consolation of their next of kin, or dissemination of a message of official disapproval of the respective human rights violations and of commitment to efforts to ensure that they do not happen again.'[62] In this sense, the Court has been particularly innovative in tailoring remedial measures to the specific case with regard to the second category, thereby going beyond pecuniary compensation[63] and also adhering to the goal of full restitution (restitutio in integrum).[64] Measures of satisfaction and guarantess of non-repetition that have been ordered directed to individual victims, communities, and society as a whole,[65] include, inter alia, the nullifaction of criminal convictions,[66] reinstatement of employment,[67] medical and/or psychological treatment for the victims/their next of kin,[68] the devolution of the victims' body to their relatives,[69] granting of scholarships,[70] the investigation, prosecution and punishment of human rights violations,[71] official or public acts of apology and recognition of responsibility,[72] publication of parts of the judgment,[73] measures to commemorate the victims and/or the events,[74] domestic legal reform to conform with Inter-American human rights standards[75] as well as capacity building,[76] particularly of State agents and military forces.[77]

II. Inter-American Commission of Human Rights

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This part of the chapter were written by 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 fulfils its function of promoting and protecting human rights by 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.

Both the Commission and the Court have seven members (commissioners and judges), who must have high moral authority and a recognized understanding of human rights law, and in the case of Court judges, they must also meet the conditions required for the exercise of the highest judicial functions in accordance with the law of the country of which they are nationals or of the State that proposes them as candidates.

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, women, 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.

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 jurisdictional procedure before the Inter-American Commission is divided into four procedural stages: initial processing, admissibility, merits, and referral of the case to the Court. The Commission could be understood as a gatekeeper for the cases before they are presented to the Court.

Precautionary measures (under the Inter-American Commission) and provisional measures (within the Inter-American Court's jurisdiction) are also a function of the system's bodies. Their origins and legal implications diverge. The precautionary measures of the Commission are an evolutive interpretation of its own Rules (art. 25), and their bindingness is contested. In contrast, the provisional measures of the Court are derived from the Convention (art. 63.2 ACHR) and are obligatory as treaty provisions. These measures are implemented when a serious situation—or an extreme one in the case of the Inter-American Court—is acknowledged in the proceedings and when quick action is required to prevent irreparable harm to the victims (see article 63.2 ACHR). The Inter-American Court has said in its decisions that the goal of the measures is to protect the rights of the parties to the dispute and make sure that their activities throughout the litigation do not affect the outcome of the verdict on the merits.

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 state responsibility for an international wrongful act, 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

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This part of the chapter were written by Walter Arévalo-Ramírez and Andres Rousset-Siri.




1. Highlights of the IACHR 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: a. the normative issue – due to lack of legal regulation within States, and b. the structural issue – where institutional obstacles arise in the hands of those responsible for compliance with the measure in the domestic sphere.

These issues at the domestic level include 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 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 merits 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"

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This part of the chapter were written by Walter Arévalo-Ramírez and Andres Rousset-Siri.




The concept of Conventionality Control is one of the 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, 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 concept of Conventionality Control has been developed[78] and expanded in key judgments in the history of the 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[79], 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)

Further Readings

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  • Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan and Ximena Soley, Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford University Press 2017).
  • James L. Cavallaro, Claret Vargas, Clara Sandoval, Bernard Duhaime, Doctrine, Practice, and Advocacy in the Inter-American Human Rights System (Oxford University Press 2019).
  • Yves Haeck, Oswaldo Ruiz-Chiriboga and Clara Burbano-Herrera, The Inter-American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015).
  • Ludovic Hennebel and Hélène Tigroudja, The American Convention on Human Rights: A Commentary (Oxford University Press 2022).
  • Jo M. Pasqualucci, The practice and procedure of the inter-american court of human rights (Cambridge University Press, 2nd ed 2013).
  • Ximena Soley and Silvia Steininger, 'Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights' (2018) 14 International Journal of Law in Context 237.

Further Resources

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Table of Contents

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Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes

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  1. ↑ Inter-American Commission of Human Rights, Annual Report 2019, OEA/Ser.L/V/II. Doc. 9, 24 February 2020, para. 48.
  2. ↑ See Philip Leach, The European Court of Human Rights: Achievements and Prospects, in: Gerd Oberleitner (ed.), International Human Rights Institutions, Tribunals, and Courts, Springer, Singapore 2018, p. 425.
  3. ↑ See Lea Shaver, 'The Inter-American Human Rights System: An Effective Institution for Regional Rights Protection? for Regional Rights Protection?' (2010) 9 (4) Washington University Global Studies Law Review 639, 660, 666 f, 670.
  4. ↑ See, by mode of example, Raffaela Kunz, 'The Inter-American System has always been in crisis, and we always found a way out' -An interview with Eduardo Ferrer Mac-Gregor Poisot (Völkerrechtsblog, 17 October 2016) <https://voelkerrechtsblog.org/de/the-inter-american-system-has-always-been-in-crisis-and-we-always-found-a-way-out/>.
  5. ↑ As an example for such a member State protest, see the joint declaration of the governments of Argentina, Brazil, Chile, Colombia and Paraguay, in which they demanded a more strict application of the sources of international human rights law: Declaración sobre el sistema interamericano de derechos humanos, 11 April 2019, directed towards the then executive secretary of the Inter-American Commission of Human Rights, Paulo Abrão <https://www.mre.gov.py/index.php/noticias-de-embajadas-y-consulados/gobiernos-de-argentina-brasil-chile-colombia-y-paraguay-se-manifiestan-sobre-el-sistema-interamericano-de-derechos-humanos>.
  6. ↑ Note the ACHR's denunciations of Trinidad Tobago (1998) and Venezuela (2012), while the latter re-ratified the Convention in 2019, see <http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm>.
  7. ↑ Robert K. Goldman, 'History and Action: The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights' (2009) 31(4) Human Rights Quarterly 856, 859.
  8. ↑ Cf. ibid. 860.
  9. ↑ IACtHR, 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 14 July 1989, Series A No.10, para. 44.
  10. ↑ Ibid. paras. 42, 45. See also IACHR, James Terry Roach and Jay Pinkerton v. United States, Case 9647, Resolution No. 3/87, Annual Report 1986-1987, 22 September 1987, paras. 48, 49.
  11. ↑ See also IACHR, James Terry Roach and Jay Pinkerton v. United States, Case 9647, Resolution No. 3/87, Annual Report 1986-1987, 22 September 1987, paras. 47-49; IACHR, Rafael Ferrer-Mazorra v. United States, Case 9903, Report No. 51/01, Annual Report 2000, 4 April 200, paras. 172 ff. For the case of Canada see Bernard Duhaime, 'Canada and the inter-American human rights system: Time to become a full player' (2012) 67(3) International Journal 639, particularly 641 f.
  12. ↑ IACHR, 'The Right to the Truth in the Americas', 13 August 2014, OEA/Ser.L/V/II.152 Doc. 2, paras. 43, 56 et seqq.
  13. ↑ IACtHR, Case of Velásquez Rodríguez Vs. Honduras (Merits), Judgment of 29 July 1988, Series C No. 4, para. 181.
  14. ↑ IACtHR, Case of Bulacio Vs. Argentina (Merits, Reparations and Costs), Judgment of 18 September 2003, Serie C No. 100, para. 114. See also IACtHR, Case of the Río Negro Massacres Vs. Guatemala (Preliminary Objection, Merits, Reparations and Costs), Judgment of 4 September 2012, Series C No. 250, para. 191.
  15. ↑ Oswaldo R Ruiz-Chiriboga, 'The American Convention and the Protocol of San Salvador: Two Intertwined Treaties - Non-Enforceability of Economic, Social and Cultural Rights in the Inter-American System' (2013) 31(2) Netherlands Quarterly of Human Rights 159, 160.
  16. ↑ IACtHR, Case of Lagos del Campo Vs. Peru (Preliminary Objections, Merits, Reparations and Costs), Judgment of 31 August 2017, Series C No. 340, paras.141-154; IACtHR, Case of Dismissed Employees of Petroperú et al. Vs. Peru (Preliminary Objections, Merits, Reparations and Costs), Judgment of 23 November 2017, Series C No. 344 (in Spanish only), paras. 192, 193.
  17. ↑ IACtHR, Case of Poblete Vilches et al. Vs. Chile (Merits, Reparations and Costs) Judgment of 8 March 2018, Series C No. 349, paras. 100–156; IACtHR, Case of Cuscul Pivaral et al. Vs. Guatemala (Preliminary Objection, Merits, Reparations and Costs), Judgment of 23 August 2018, Series C No. 359, paras. 75–148, particularly paras. 198 ff.
  18. ↑ IACtHR, Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) Vs. Argentina (Merits, Reparations and Costs), Judgment of 6 February 2020, paras. 201, 202-209.
  19. ↑ IACtHR, Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) Vs. Argentina, Merits, Reparations and Costs, Judgment of 6 February 2020, paras. 201, 210-221.
  20. ↑ IACtHR, Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) Vs. Argentina (Merits, Reparations and Costs), Judgment of 6 February 2020, paras. 201, 222-230.
  21. ↑ IACtHR, Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) Vs. Argentina (Merits, Reparations and Costs), Judgment of 6 February 2020, paras. 201, 231-242.
  22. ↑ See particularly the critique coming from within the Court itself: IACtHR, Case of Suárez Peralta Vs. Ecuador (Preliminary Objections, Merits, Reparations and Costs), Judgment of 21 May 2013, Serie C No. 261, separate opinion of judge Alberto Pérez Pérez; IACtHR, Case of Gonzales Lluy et al. Vs. Ecuador (Preliminary Objections, Merits, Reparations and Costs), Judgment, 1 September 2015, Series C No. 298, concurring opinion of judge Humberto Antonio Sierra Porto and concurring opinion of judge Alberto Pérez Pérez; IACtHR, Case of Dismissed Employees of Petroperú et al. Vs. Peru (Preliminary Objections, Merits, Reparations and Costs), Judgment, 23 November 2017, Series C No. 344, partially dissenting opinion of judge Humberto Antonio Sierra Porto; IACtHR, Case of Lagos del Campo Vs. Peru (Preliminary Objections, Merits, Reparations and Costs) Judgment, 31 August 2017, Series C No. 340, partially dissenting opinion of judge Eduardo Vio Grossi; IACtHR, Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) Vs. Argentina (Merits, Reparations and Costs), Judgment, 6 February 2020, Series C No. 400, partially dissenting opinion of Humberto Antonie Sierra Porto. See also Oswaldo R. Ruiz-Chiriboga, 'The American Convention and the Protocol of San Salvador: Two Intertwined Treaties – Non-Enforceability of Economic, Social and Cultural Rights in the Inter-American System' (2013) 31 (2) Netherlands Quarterly of Human Rights 159; James L. Cavallaro and Emily J. Schaffer, 'Less as More: Rethinking Supernational Litigation of Economic and Social Rights in the Americas' (2004) 56 Hastings Law Journal 267; James L. Cavallaro and Emily J. Schaffer, 'Rejoinder: Justice before Justiciability: Inter-American Litigation and Social Change' (2006) 39 NYU Journal of International Law and Politics 365. See also Juana María Ibáñez Rivas, 'La justiciabilidad directa de los derechos económicos, sociales, culturales y ambientales: Génesis de la innovadora jurisprudencia interamericana' in Mariela Morales Antoniazzi, Liliana Roncoli y Laura Clérico (eds), Interamericanización de los DESCA – El Caso Cuscul Pivaral de la Corte IDH (Mexico 2020) 67, particualrly 92; Eleanor Benz & Verena Kahl, 'El caso Lhaka Honhat: la extensión de la justiciabilidad directa de los DESCA y la esperanza incumplida de la concreción del derecho a un medioambiente sano' in Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi y Rogelio Flores Pantoja (eds.), El caso Lhaka Honhat vs. Argentina y las tendencias de su interamericanización (México 2021) 237.
  23. ↑ See, inter alia, Óscar Parra Vera, 'La Justiciabilidad de los derechos económicos, sociales y culturales en el Sistema Interamericano a la luz del Art. 26 de la Convención Americana: El sentido y la promesa del caso Lagos del Campo' in Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi y Rogelio Flores Pantoja (eds), Inclusión, Ius Commune y Justiciabilidad de los DESCA en la Jurisprudencia Interamericana – El Caso Lagos del Campo y los nuevos desafíos, (Mexico 2018) 181; Jorge Calderón Gamboa, 'La puerta de la justiciabilidad de los derechos económicos, sociales, culturales y ambientales en el Sistema Interamericano: relevancia de la sentencia Lagos del Campo' in Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi y Rogelio Flores Pantoja (eds.), Inclusión, Ius Commune y Justiciabilidad de los DESCA en la Jurisprudencia Interamericana – El Caso Lagos del Campo y los nuevos desafíos, (Mexico 2018) 333; Angel Cabrera, Daniel Cerqueira and Salvador Herencia, 'Comentarios a la sentencia de la Corte Interamericana sobre el Caso Lhaka Honhat Vs. Argentina' (Justicia en las Américas, 30 April 2020) <https://dplfblog.com/2020/04/30/comentarios-a-la-sentencia-de-la-corte-interamericana-sobre-el-caso-lhaka-honhat-vs-argentina/>; Tina Downsend and Maria Antonia Tigre, 'Lhaka Honhat Association Vs. Argentina: the human right to environment in the Inter-American Court' (The Global Network for Human Rights and the Environment, 10 April 2020) <https://gnhre.org/2020/04/10/lhaka-honhat-association-vs-argentina-the-human-right-to-environment-in-the-inter-american-court/>; Lara Dominguez, 'The Inter-American Court of Human Rights Issues Landmark Judgment in Indigenous Rights Case' (Minority Rights Group International, 16 April 2020) <https://minorityrights.org/2020/04/16/nuestra-tierra-v-argentina/>. See also Tala Melish who already in 2006 argued for the direct justiciability of economic, social and cultural rights: Tala Melish, 'Rethinking the “Less as More” Thesis: Supranational Litigation of Economic, Social, and Cultural Rights in the Americas' (2006) 39 NYU Journal of International Law and Politics 220.
  24. ↑ See IACHR, Compendium on Economic, Social, Cultural and Environmental RightsInter-American Standards (2021) Special Rapporteurship on Economic, Social, Cultural and Environmental Rights REDESCA, Soledad García Muñoz, OEA/Ser.L/V/II.Doc. 465
  25. ↑ See Philip Alston, 'A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?' (1982) 29 (3) Netherlands International Law Review 307; Petra Minnerop, Naomi Roth-Arriaza & Sara C. Aminzadeh, 'Solidarity Rights (Development, Peace, Environment, Humanitarian Assistance)' in Max Planck Encyclopedia of Public International Law, last updated in February 2018, paras. 13 ff. See generally on solidarity rights Karel Vasak, 'For the Third Generation of Human Rights: The Rights of Solidarity' (1979) Inaugural Lecture to the Tenth Study Session of the International Institute of Human Rights.
  26. ↑ See James L. Cavallari & Emily J. Schaffer, 'Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas' (2004) 56 (2) Hastings Law Journal 217, 227; Oswaldo R. Ruiz-Chiriboga, 'The American Convention and the Protocol of San Salvador: Two Intertwined Treaties - Non-Enforceability of Economic, Social and Cultural Rights in the Inter-American System' (2013) 31 (2) Netherlands Quarterly of Human Rights 159, 160 f.
  27. ↑ See, inter alia, IACtHR, Case of Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs), Judgment, 17 June 2005, Series C No. 125, paras. 163 ff; IACtHR, Case of Xákmok Kásek Indigenous Community v. Paraguay (Merits, Reparations and Costs), Judgment, 24 August 2010, Series C No. 214, paras. 194 ff.
  28. ↑ IACtHR, Case of Vicky Hernández et al. v. Honduras (Merits, Reparations and Costs), Judgment, 26 March 2021, Series C No. 422, particularly paras. 126 ff.
  29. ↑ IACtHR, Case of Vicky Hernández et al. v. Honduras (Merits, Reparations and Costs), Judgment, 26 March 2021, Series C No. 422, particularly para. 128.
  30. ↑ IACtHR, Case of Vicky Hernández et al. v. Honduras (Merits, Reparations and Costs), Judgment, 26 March 2021, Series C No. 422, particularly para. 129.
  31. ↑ IACtHR, Case of Vicky Hernández et al. v. Honduras (Merits, Reparations and Costs), Judgment, 26 March 2021, Series C No. 422, particularly para. 133.
  32. ↑ For corresponding critique see, by mode of example, Ana Micaela Alterio, 'Latin American Feminists, Gender, and the Binary System of Human Rights Protection' (2022) 116 AJIL Unbound 323.
  33. ↑ Corte Interamericana sesionará con cuatro hombres y tres mujeres, Servindi, 17 November 2021 <https://www.servindi.org/actualidad-noticias/17/11/2021/corte-interamericana-sesionara-cuatro-hombres-y-tres-mujeres>; Nicolas Boeglin, 'Elección de jueces en la Corte Interamericana de Derechos Humanos' (La Voz de Goicoechea, 18 November 2021) <https://www.lavozdegoicoechea.info/2021/11/eleccion-de-jueces-en-la-corte.html>. Generally with regard to parity on the bench see Elizabeth Odio Benito, 'Symposium on Gender Representation: Gender Parity in International Courts – The Voice of an International Judge' (Opinio Iuris, 4 October 2021) <http://opiniojuris.org/2021/10/04/symposium-on-gender-representation-gender-parity-in-international-courts-the-voice-of-an-international-judge/>.
  34. ↑ See, for example, María Julia Dellasoppa, Dialogues for Transparency: The Nomination and Election processes for Commissioners and Judges to the Inter-American Court and Commission on Human Rights and the experience of the Independent Expert Panels (Center for Human Rights & Humanitarian Law at American University College of Law 2020) 6, 29; Katya Salazar and Naomi Roht-Arriaza, 'Democracia y Transparencia en el SIDH: una experiencia en marcha' (2017) 8 (2) Revista Direito y Praxis 1652, 1655.
  35. ↑ María Julia Dellasoppa, Dialogues for Transparency: The Nomination and Election processes for Commissioners and Judges to the Inter-American Court and Commission on Human Rights and the experience of the Independent Expert Panels (Center for Human Rights & Humanitarian Law at American University College of Law 2020) 6, 8, 28, 46. See also Center for Justice and International Law (CEJIL), Aportes para el proceso de selección de miembros de la Comisión y Corte Interamericanas de Derechos Humanos (San José 2005) 9; Katya Salazar and Naomi Roht-Arriaza, 'Democracia y Transparencia en el SIDH: una experiencia en marcha' (2017) 8 (2) Revista Direito y Praxis 1652, 1655.
  36. ↑ María Julia Dellasoppa, Dialogues for Transparency: The Nomination and Election processes for Commissioners and Judges to the Inter-American Court and Commission on Human Rights and the experience of the Independent Expert Panels (Center for Human Rights & Humanitarian Law at American University College of Law 2020) 27 f. See also Center for Justice and International Law (CEJIL), Aportes para el proceso de selección de miembros de la Comisión y Corte Interamericanas de Derechos Humanos (San José 2005) 11, 13 f; Katya Salazar and Naomi Roht-Arriaza, 'Democracia y Transparencia en el SIDH: una experiencia en marcha' (2017) 8 (2) Revista Direito y Praxis 1652, 1670, 1672,
  37. ↑ Rene Urueña, 'Compliance as transformation: the Inter-American system of human rights and its impact(s)' in Rainer Grote, Mariela Morales Antoniazzi and Davide Paris, Research Handbook on Compliance in International Human Rights Law (Edward Elgar Publishing 2021) 226, 237.
  38. ↑ As early as 2003 the Court held that its 'jurisdiction includes the authority to administer justice; it is not restricted to stating the law, but also encompasses monitoring compliance with what has been decided. It is therefore necessary to establish and implement mechanisms or procedures for monitoring compliance with the judicial decisions, an activity that is inherent in the jurisdictional function.45 Monitoring compliance with judgments is one of the elements that comprises jurisdiction. To maintain otherwise, would mean affirming that the judgments delivered by the Court are merely declaratory and not effective. Compliance with the reparations ordered by the Court in its decisions is the materialization of justice for the specific case and, ultimately, of jurisdiction; to the contrary, the raison d’être for the functioning of the Court would be imperiled.' IACtHR, Baena Ricardo et al. v. Panama (Competence), Judgment, 28 November 2003, Series C No. 104, para. 72.
  39. ↑ For a detailed overview see Rene Urueña, 'Compliance as transformation: the Inter-American system of human rights and its impact(s)' in Rainer Grote, Mariela Morales Antoniazzi and Davide Paris, Research Handbook on Compliance in International Human Rights Law (Edward Elgar Publishing 2021) 226, 233-237.
  40. ↑ Cf. Rene Urueña, 'Compliance as transformation: the Inter-American system of human rights and its impact(s)' in Rainer Grote, Mariela Morales Antoniazzi and Davide Paris, Research Handbook on Compliance in International Human Rights Law (Edward Elgar Publishing 2021) 226, 236. See also Courtney Hillebrecht, ‘The Domestic Mechanisms of Compliance with International Human Rights Law: Case Studies from the Inter-American Human Rights System’ (2012) 34 Human Rights Quarterly 959 with specific examples from Argentina, Brazil and Colombia.
  41. ↑ With regard to the ECtHR see, for example, Raffaela Kundz, 'Securing the survival of the system: the legal and institutional architecture to supervise compliance with the ECtHR’s judgment' in Rainer Grote, Mariela Morales Antoniazzi and Davide Paris, Research Handbook on Compliance in International Human Rights Law (Edward Elgar Publishing 2021) 12. See also Thomas M. Antkowiak, 'Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond' (2008) 46 Columbia Journal of Transnational Law 351, 365. For the ACtHR see, inter alia, Frans Viljoen, 'Forging a credible African system of human rights protection by overcoming state resistance and institutional weakness: compliance at a crossroads' in Rainer Grote, Mariela Morales Antoniazzi and Davide Paris, Research Handbook on Compliance in International Human Rights Law (Edward Elgar Publishing 2021) 362, 374, 382.
  42. ↑ IACtHR, Annual Report of the Inter-American Court of Human Rights 2010, San José 2011, p. 9 et seq.
  43. ↑ See Thomas Buergenthal, 'Remembering the Early Years of the Inter-American Court of Human Rights' (2005) 37 New York University Journal of International Law and Politics 259, 265 f; Carlos María Pelayo Moller, Introducción al Sistema Interamericano de Derechos Humanos (Mexico 2011) 69.
  44. ↑ See Carlos María Pelayo Moller, Introducción al Sistema Interamericano de Derechos Humanos (Mexico 2011) 69. See generally also Miguel Rábago Dorbecker, 'El avance de los derechos humanos en las opiniones consultivas de la Corte Interamericana de Derechos Humanos' in Manuel Becerra Ramírez (ed), La Corte Interamericana de Derechos Humanos a veinticinco años de su funcionamiento, (Mexico 2007) 223.
  45. ↑ IACtHR, The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, 15 November 2017, Series A No. 23.
  46. ↑ IACtHR, Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina (Merits, Reparations and Costs) Judgment, 6 February 2020, Series C No. 400. See also on the case Maria Antonia Tigre, 'Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina' (2021) 115 (4) American Journal of International Law 706; Eleanor Benz and Verena Kahl, 'El caso Lhaka Honhat: la extensión de la justiciabilidad directa de los DESCA y la esperanza incumplida de la concreción del derecho a un medioambiente sano', in Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi y Rogelio Flores Pantoja (eds.), El caso Lhaka Honhat vs. Argentina y las tendencias de su interamericanización (México 2021) 237.
  47. ↑ For corresponding analyses of the request see, inter alia, Juan Auz and Thalia Viveros-Uehara, 'Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human Rights' (EJIL:TALK!, 2 March 2023) <https://www.ejiltalk.org/another-advisory-opinion-on-the-climate-emergency-the-added-value-of-the-inter-american-court-of-human-rights/>; Verena Kahl, 'Warming Up: The Chilean and Colombian Request for an Inter-American Advisory Opinion on the Climate Emergency and Human Rights' (Verfassungsblog, 10 March 2023) <https://verfassungsblog.de/warming-up/>.
  48. ↑ In particualr, the IACtHR has recognized 'the close links that exist between the right to a dignified life and the protection of ancestral territory and natural resources' and the duty of the State to 'take positive measures to ensure that the members of these peoples have access to a dignified life – which includes the protection of their close relationship with the land – and to their life project, in both its individual and collective dimension.' IACtHR, The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, 15 November 2017, Series A No. 23, para. 48. See also Case of the Yakye Axa Indigenous Community v. Paraguay (Interpretation of the Judgment of Merits, Reparations and Costs), Judgment, 6 February 2006, Series C No. 142, para. 163; IACtHR, Case of the Kaliña and Lokono Peoples v. Suriname (Merits, Reparations and Costs) Judgment, 25 November 2015, Series C No. 309, para. 181.
  49. ↑ See, by mode of example, IACtHR, Case of the Moiwana Community v. Suriname (Preliminary Objections, Merits, Reparations and Costs), Judgment, 15 June 2005, Series C No. 124, 209; IACtHR; Case of the Saramaka People. v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), Judgment, 28 November 2007, Series C No. 172, 115; IACtHR, Case of the Yakye Axa Indigenous Community v. Paraguay (Interpretation of the Judgment of Merits, Reparations and Costs), Judgment, 6 February 2006, Series C No. 142, paras 32-36;
  50. ↑ See, for example, IACtHR; Case of the Saramaka People. v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), Judgment, 28 November 2007, Series C No. 172, paras. 133-137; IACtHR, Case of Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Judgment, 27 June 2012, Series C No. 245, paras. 177-211.
  51. ↑ On the topic of indigenous rights cases in the Inter-American Human Rights System see, inter alia, Alejandro Fuentes, 'Protection of Indigenous Peoples’ Traditional Lands and Exploitation of Natural Resources: The Inter-American Court of Human Rights’ Safeguards' (2017) 24 (3) International Journal on Minority and Group Rights 229; Joel E. Correia, 'Indigenous rights at a crossroads: Territorial struggles, the Inter-American Court of Human Rights, and legal geographies of liminality' (2018) 97 Geoforum 73; Valerio de Oliveira Mazzuoli and Dilton Ribeiro, 'Indigenous Rights before the Inter-American Court of Human Rights: a Call for a Pro Individual Interpretation' (2015) 61 Revista IIDH 133; Diana Contreras-Garduno and Sebastiaan Rombouts, 'Collective Reparations for Indigenous Communities before the Inter-American Court of Human Rights' (2011) 27 Merkourios-Utrecht J Int'l & Eur L 4.
  52. ↑ See IACtHR, Case of Barrios Altos v. Peru (Merits), Judgment, 14 March 2001, Series C No. 75, paras. 41-44.
  53. ↑ Generally on the topic see, for example, Juan Pablo Perez-Leon-Acevedo, 'The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment' (2020) 33 (3) Leiden Journal of International Law 667.
  54. ↑ The Court has defined reparations as 'a generic term that covers the various ways a State may make amends for the international responsibility it has incurred (restitutio in integrum, payment of compensation, satisfaction, guarantees of non-repetitions among others).' IACtHR, Case of Loayza Tamayo v. Peru (Reparations and Costs), Judgment, 27 November 1998, Series C No. 42, para. 85. Generally on the IACtHR's remedial measures see Jo M. Pasqualucci, The practice and procedure of the inter-american court of human rights (Cambridge University Press, 2nd ed 2013) 188 ff.
  55. ↑ From the very beginning of its jurisprudence, the IACtHR considered it a principle of international law that 'every violation of an international obligation which results in harm creates a duty to make adequate reparation.' IACtHR, Case of Velásquez Rodríguez v. Honduras (Reparations and Costs), Judgment, 21 July 1989. Series C No. 7, para 25.
  56. ↑ See Dinah Shelton, who in 1998 described the IACtHR as the international tribunal with 'the broadest remedial powers [...] now in existence.' Dinah Shelton, 'Remedies in the Inter-American System' (1998) 92 Proceedings of the Annual Meeting (American Society of International Law) 202, 203. See also Damian Gonzalez-Salzberg titling the development of a broad scope of remedies as 'one of the greatest contributions of the Inter-American Court to international law.' Damian Gonzalez-Salzberg, ‘Do States comply with the compulsory judgments of the Inter-American Court of Human Rights? An empirical study of the compliance with 330 measures of reparation.’ (2014) 13 Revista do Instituto Brasileiro de Direitos Humanos 93, 94.
  57. ↑ Cf. Rene Urueña, 'Compliance as transformation: the Inter-American system of human rights and its impact(s)' in Rainer Grote, Mariela Morales Antoniazzi and Davide Paris, Research Handbook on Compliance in International Human Rights Law (Edward Elgar Publishing 2021) 226, 232. See also Dinah Shelton, 'Remedies in the Inter-American System' (1998) 92 Proceedings of the Annual Meeting (American Society of International Law) 202, 203. See also Thomas M. Antkowiak, 'Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond' (2008) 46 Columbia Journal of Transnational Law 351, 365.
  58. ↑ See IACtHR, Case of the Rochela Massacre v. Colombia (Merits, Reparations and Costs), Judgment, 11 May 2007, Series C No. 163, paras 239 ff and 275 ff.
  59. ↑ Cf. Damian Gonzalez-Salzberg, ‘Do States comply with the compulsory judgments of the Inter-American Court of Human Rights? An empirical study of the compliance with 330 measures of reparation.’ (2014) 13 Revista do Instituto Brasileiro de Direitos Humanos 93, 95.
  60. ↑ IACtHR; Case of Juan Humberto Sánchez v. Honduras (Preliminary Objection, Merits, Reparations and Costs) Judgment, 7 June 2003, Series C No. 99, para. 162. See also IACtHR, Case of Myrna Mack Chang v. Guatemala (Merits, Reparations and Costs), Judgment, 25 November 2003, Series C No. 101, para. 250.
  61. ↑ IACtHR, Case of Juan Humberto Sánchez v. Honduras (Preliminary Objection, Merits, Reparations and Costs) Judgment, 7 June 2003, Series C No. 99, para. 168. See also, for example, IACtHR, Case of Trujillo Oroza v. Bolivia (Reparations and Costs), Judgment, 27 February 2002, Series C No. 92, para. 77.
  62. ↑ IACtHR, Case of Trujillo Oroza v. Bolivia (Reparations and Costs), Judgment, 27 February 2002, Series C No. 92, para. 77. See also, inter alia, IACtHR, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (Reparations and Costs), Judgment, 26 May 2001, Series C No. 77, para. 84.
  63. ↑ See Damian Gonzalez-Salzberg, ‘Do States comply with the compulsory judgments of the Inter-American Court of Human Rights? An empirical study of the compliance with 330 measures of reparation.’ (2014) 13 Revista do Instituto Brasileiro de Direitos Humanos 93, 94.
  64. ↑ See Dinah Shelton, 'Remedies in the Inter-American System' (1998) 92 Proceedings of the Annual Meeting (American Society of International Law) 202, 203. See also Jo M. Pasqualucci, The practice and procedure of the inter-american court of human rights (Cambridge University Press, 2nd ed 2013) 190-193. The Court has considered the restitutio in integrum as 'the re-establishment of the previous situation.' IACtHR, Case of Cesti Hurtado v. Peru (Reparations and Costs), Judgment 31 May 2001, Series C No. 78, para. 33. Full restitution in this sense means the 're-establishment of the previous situation.' IACtHR, Case of Cesti Hurtado v. Peru (Reparations and Costs), Judgment, 31 May 2001, Series C No. 78, para 33.
  65. ↑ Cf. Thomas M. Antkowiak, 'Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond' (2008) 46 Columbia Journal of Transnational Law 351, 371.
  66. ↑ See, for example, IACtHR, Case of Cantoral Benavides v. Peru (Reparations and Costs), Judgment, 3 December 2001, Series C No. 88, para. 64 (a). See also the detailed analysis in IACtHR, Case of Castillo Petruzzi et al. v. Peru (Merits, Reparations and Costs), Judgment, 30 May 1999, Series C No. 52, paras. 217-221.
  67. ↑ See, inter alia, IACtHR; Case of Loayza Tamayo v. Peru (Reparations and Costs), Judgment, 27 November 1998, Series C No. 42, para. 113; IACtHR; Case of Baena Ricardo et al. v. Panama (Merits, Reparations and Costs), Judgment, 2 February 2001, Series C No. 72, para. 203.
  68. ↑ See, for example, IACtHR, Case of the Mapiripán Massacre v. Colombia (Merits, Reparations and Costs), Judgment, 15 September 2005, Series C No. 134, para. 312; IACtHR, Case of the 19 Merchants v. Colombia (Merits, Reparations and Costs), Judgment 5 July 2004, Series C No. 109, paras. 275-280; IACtHR, Case of Lori Berenson Mejía v. Peru (Merits, Reparations and Costs), Judgment, 25 November 2004, Series C No. 119, 238.
  69. ↑ See, inter alia, IACtHR, Case of the 19 Merchants v. Colombia (Merits, Reparations and Costs), Judgment 5 July 2004, Series C No. 109, 271; IACtHR, Case of Rodríguez Vera et al. (The Disappeared from the Palace of Justice) v. Colombia (Preliminary Objections, Merits, Reparations and Costs), Judgment, 14 November 2014, Series C No. 287, paras. 564.
  70. ↑ See, inter alia, IACtHR, Case of Women Victims of Sexual Torture in Atenco v. Mexico (Preliminary Objection, Merits, Reparations and Costs) Judgment, 28 November 2018, Series C No. 371, paras. 351; IACtHR, Case of Cantoral Benavides v. Peru (Reparations and Costs), Judgment, 3 December 2001, Series C No. 88, para. 80.
  71. ↑ See, by mode of example, IACtHR, Case of the Mapiripán Massacre v. Colombia (Merits, Reparations and Costs), Judgment, 15 September 2005, Series C No. 134, 295 ff; IACtHR, Case of Rodríguez Vera et al. (The Disappeared from the Palace of Justice) v. Colombia (Preliminary Objections, Merits, Reparations and Costs), Judgment, 14 November 2014, Series C No. 287, paras. 553 ff.
  72. ↑ See, by mode of example, IACtHR, Case of Cantoral Benavides v. Peru (Reparations and Costs), Judgment, 3 December 2001, Series C No. 88, para. 81; IACtHR, Case of Cantoral Huamaní and García Santa Cruz v. Peru (Preliminary Objection, Merits, Reparations and Costs), Judgment, 10 July 2007, Series C No. 167, 193; IACtHR, Case of Women Victims of Sexual Torture in Atenco v. Mexico (Preliminary Objection, Merits, Reparations and Costs), Judgment, 28 November 2018, Series C No. 371, paras. 347-348.
  73. ↑ See, inter alia, IACtHR, Case of the Caracazo v. Venezuela (Reparations and Costs), Judgment 29 August 2002, Series C No. 95, para. 128; IACtHR, Case of Bámaca Velásquez v. Guatemala (Reparations and Costs), Judgment 22 February 2002, Series C No. 91, para. 84.
  74. ↑ In the Case of the 19 Merchants the Court has, for example, ordered the erection of a monument. See IACtHR, Case of the 19 Merchants v. Colombia (Merits, Reparations and Costs), Judgment 5 July 2004, Series C No. 109, paras. 272-273. Similarly in IACtHR, Case of the Pueblo Bello Massacre v. Colombia (Merits, Reparations and Costs), Judgment 31 January 2006, Series C No. 140, para. 278. In the Case of Rodríguez Vera et al. the COurt even ordered the preparation of an audiovisual documentary. See IACtHR, Case of Rodríguez Vera et al. (The Disappeared from the Palace of Justice) v. Colombia (Preliminary Objections, Merits, Reparations and Costs), Judgment, 14 November 2014, Series C No. 287, paras. 577-579. Similarly in IACtHR, Case of Ramírez Escobar et al. v. Guatemala (Merits, Reparations and Costs), Judgment, 9 March 2018, Series C No. 351, para. 401.
  75. ↑ See, for example, IACtHR, Case of "The Last Temptation of Christ" (Olmedo Bustos et al.) v. Chile (Merits, Reparations and Costs), Judgment 5 February 2001, Series C No. 73, paras. 97-98; IACtHR, Case of Herrera Ulloa v. Costa Rica (Preliminary Objections, Merits, Reparations and Costs), Judgment, 2 July 2004, Series C No. 107, para. 198.
  76. ↑ See, inter alia, IACtHR, Case of Women Victims of Sexual Torture in Atenco v. Mexico (Preliminary Objection, Merits, Reparations and Costs) Judgment, 28 November 2018, Series C No. 371, para. 355; IACtHR, Case of Blanco Romero et al. v. Venezuela (Merits, Reparations and Costs), Judgment, 28 November 2005, Series C No. 138, para. 106.
  77. ↑ For an overview on these and other remedial measures ordered by the IACtHR see, inter alia, Jo M. Pasqualucci, The practice and procedure of the inter-american court of human rights (Cambridge University Press, 2nd ed 2013) 188 ff.; Damian Gonzalez-Salzberg, ‘Do States comply with the compulsory judgments of the Inter-American Court of Human Rights? An empirical study of the compliance with 330 measures of reparation.’ (2014) 13 Revista do Instituto Brasileiro de Direitos Humanos 93, 94-95; Thomas M. Antkowiak, 'Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond' (2008) 46 Columbia Journal of Transnational Law 351, 365-386.
  78. ↑ Burgorgue-Larsen, L., Chronicle of a Fashionable Theory in Latin America. Decoding the Doctrinal Discourse on Conventionality Control, in Haeck, Y. et al. (Hrsg.), The Inter-American Court of Human Rights: Theory and Practice, Present and Future (Cambridge: Intersentia 2015), 647–676.
  79. ↑ IACtHR. Caso Vargas Areco Vs. Paraguay. Sentencia de 26 de septiembre de 2006. Serie C No. 155, voto razonado del Juez Sergio García Ramírez, p. 6.
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