The inter-American human rights system: an effective institution for regional rights protection?

• Published date: 22 December 2010
• Author: Shaver, Lea
• Date: 22 December 2010

The Inter-American Court of Human Rights and the Inter-American Commission on Human Rights are charged with protecting human rights in the Western Hemisphere. This Article explains the workings of this regional human rights system, examining its history, composition, functions, jurisdiction, procedure, jurisprudence, and enforcement. The Article also evaluates the system's historical and current effectiveness. Particular attention is given to the disconnect between the system's success with the region's Latin-American nations and its rejection by Anglo-American States, as well as to the potential to use the system to improve human rights in Cuba.

TABLE OF CONTENTS
                INTRODUCTION
                I. STRUCTURE AND FUNCTION
                 A. History
                 B. Composition
                 C. Functions
                 D. Jurisdiction
                 E. Procedure
                 F. Publications
                 G. Jurisprudence
                 H. Enforcement
                II. EFFECTIVENESS AND RECOMMENDATIONS
                 A. Evaluating Impact
                 B. Comparisons
                 C. The Problem of Cuba
                 D. The Cultural Divide
                CONCLUSIONS
                

INTRODUCTION

For almost half a century, the Inter-American human rights system has played an important role in the consolidation of democratic norms in the Western Hemisphere. Yet its workings are largely unknown to human rights advocates and legal scholars in the United States. As economic globalization and transnational adjudication continue to rise in importance, it becomes more and more important that U.S. legal scholars, students, and practitioners understand the workings of these influential regional institutions.

This Article advances that understanding in two parts. The first part of the Article develops the first detailed and systematic description of the Inter-American human rights system to be published in English. This introduction to the Inter-American Commission and Court of Human Rights proceeds in six parts, examining the twin institutions' history, composition, functions, exercise of jurisdiction, trends in jurisprudence to date, and the methods and effectiveness of enforcement of the institutions' rulings. The second part of the Article builds upon the introduction to evaluate the historical effectiveness of the Inter-American human rights system. It also explores how the system might confront several key challenges facing it today. The first challenge is how to improve human rights compliance in Cuba, the region's most problematic State. The second is to address the increasing disconnection between the Inter-American human rights system and the English-speaking States of the Western Hemisphere.

The Article concludes that although the regional system is unlikely to regain popularity with the English-speaking States, it could have an important role to play in advancing human rights in Cuba, if U.S. policymakers will let it.

I. STRUCTURE AND FUNCTION

The Inter-American Court of Human Rights (the Court) and its sister institution, the Inter-American Commission on Human Rights (the Commission, or IACHR) are charged with protecting human rights in the Western Hemisphere.

The Commission was established in 1959 and began to operate in 1960. (1) In 1969, the Organization of American States ("OAS") adopted the American Convention on Human Rights (the American Convention), which called for the creation of the Court. (2) The Court began to actually operate in 1979, after the eleventh state ratification brought the American Convention into force. (3)

Within the Inter-American Human Rights System, the Court and the Commission play distinct yet complementary roles. The Court resolves contentious disputes and issues advisory opinions on specific questions of law. (4) The Commission has a much broader role. It acts as the first step in the admissibility process for contentious cases, promotes friendly settlements between parties, and investigates and presents reports on human rights conditions in American States, even where no legal claim has been filed. (5)

The Commission is based in Washington, D.C., home of the OAS headquarters; the Court is located in San Jose, Costa Rica. (6) The official languages of the OAS, the Court, and the Commission are English, Spanish, Portuguese, and French. Most work, however, is conducted in Spanish and English. In Spanish, the institutions are known as the Corte Interamericana de Derechos Humanos ("la Corte Interamericana" or "la Corte") and the Comision Interamericana de Derechos Humanos ("CIDH").

A. History

The Inter-American human rights system arose out of an older, more general regional system. Regional governance in the Americas has its roots in the International Union of American Republics, formed in 1890 and reborn in 1948 as the OAS. (7)

Although there were relatively few democracies in the Western Hemisphere during the first half of the twentieth century, intellectual leaders in the American region shared a common heritage of philosophical agreement on human rights, stemming from the Enlightenment. (8) Statements of human rights were commonplace in national constitutions throughout the region as American colonies achieved their independence from European powers in the nineteenth century. (9) There was thus broad regional support for the adoption of an American Declaration on the Rights and Duties of Man during the same 1948 conference that created the Charter of the Organization of American States. (10) The American Declaration was the first international human rights document, preceding the Universal Declaration of Human Rights by a few months. (11)

The American Declaration stopped short of translating its expression of shared human rights norms and aspirations into binding legal obligations. (12) Although several States advocated binding commitments at that time, the United States and other regional powers opposed the move. (13) The idea for a regional Court to enforce these rights was, however, already conceived. The founding conference of the OAS adopted a resolution recommending the creation of an Inter-American Court to Protect the Rights of Man, pending further study. (14)

Despite initial enthusiasm, three decades would pass before this vision was realized. According to political scientist David Forsythe, the Roosevelt Administration strongly supported the push for international recognition of human rights. (15) The Ninth Conference of American States, which adopted both the Inter-American Charter and the American Declaration, occurred during the final days of the fourth Roosevelt Administration. Later U.S. foreign policy, however, emphasized the fight to resist and contain Communism, with mixed results for U.S. regional leadership on human rights. (16) U.S. leadership on human rights was also hampered during the 1950s and 1960s by Southern senators who recognized the development of such international institutions as a threat to the maintenance of racial segregation. (17)

The move to establish regional enforcement institutions did not regain momentum until 1959, when situations in Cuba and the Dominican Republic prompted renewed regional concern for human rights. (18) Ultimately, the OAS approved a compromise measure, establishing the Inter-American Commission on Human Rights with a limited mandate. (19)

The American Convention on Human Rights was adopted in 1969 at the Inter-American Specialized Conference on Human Rights in San Jose, Costa Rica. (20) The Declaration's statements of human rights have, at best, the status of regional customary law. The Convention, in contrast, was designed to impose specific and legally binding obligations on ratifying States. (21) The Convention also established the Inter-American Court of Human Rights to adjudicate the obligations set forth. (22) The Convention did not garner the eleven state ratifications needed to enter into force, however, until July 18, 1978. (23) For the first two decades, then, the Commission operated in the absence of a regional Court or any regional charter of legally binding human rights obligations.

The Convention might never have come into force if not for the Carter Administration's emphasis on human rights as a central goal of U.S. foreign policy between 1977 and 1981. President Carter lobbied American neighbors to ratify the Convention, and most of the region's smaller powers followed his lead. (24) Bolivia, Ecuador, El Salvador, Granada, Guatemala, Haiti, Honduras, Nicaragua, Panama, Peru, Venezuela, and the Dominican Republic all ratified the Convention during Carter's term. (25) Although President Carter signed the American Convention on behalf of the United States during his first year in office, the U.S. Senate never consented to ratification. Carter transmitted four human rights treaties to the Senate in February of 1978, including three United Nations covenants and the American Convention. (26) He invested little political capital, however, in winning the Senate's consent. (27) Only in the 1990s did the United States ratify the International Covenant on Civil and Political Rights (28) and the International Covenant on the Elimination of All Forms of Racial Discrimination. (29) The United States has never ratified, and is therefore not bound by, the American Convention and the International Covenant on Economic, Social and Cultural Rights. (30)

B. Composition

Both the Court and the Commission are composed of seven members. Judges on the Court serve six-year terms and may be reelected once. (31) Members of the Commission serve four-year terms and may also be reelected once. (32)

Candidates are proposed by Member States of the OAS, and voted upon by the General Assembly--including those States which have not recognized the jurisdiction of the Court. (33) Judges and Commission Members serve in their personal capacity, and may be nominated by any Member State, not just their country of citizenship. (34)

The American Convention on Human Rights specifies that members of the Court should be "jurists of the highest moral authority and of recognized...