The right to habeas corpus in the Inter-American human rights system.

Author:Farrell, Brian R.

    The right to a judicial determination of the legality of a person's detention, commonly known as habeas corpus, is guaranteed in a large number of domestic legal systems, and is also a cornerstone of international human rights law. Among these diverse legal regimes, habeas corpus has developed into a particularly robust remedy under Inter-American human rights law. Habeas corpus holds a unique place in the development of the Inter-American system, and the scope of the right in this system has been shaped significantly by the experiences of American countries.

    An examination of habeas corpus in the Inter-American system necessarily begins with the challenge inherent in establishing the system itself. Although the American Declaration of the Rights and Duties of Man (1) (American Declaration) predates both the Universal Declaration of Human Rights and the European Convention on Human Rights, its early adoption was followed by a long absence of meaningful activity at the regional level. It was not until 1960 that a monitoring system was implemented in the Inter-American system and 1978 before a binding human rights treaty came into force.

    The promotion and protection of human rights in the Americas has been hampered by a history of political instability across much of Latin America. Judge Thomas Buergenthal, former President of the Inter-American Court of Human Rights, has observed that the Americas "continue to suffer from widespread poverty, corruption, discrimination, and illiteracy, not to mention archaic judicial systems that are badly in need of reform." (2) These challenges are compounded by the fact that Canada and the United States, two democracies with strong legal traditions, chose not to ratify the American Convention on Human Rights (American Convention). Thus, the Inter-American system lacks both the general stability of civil society as well as the broad regional consensus on participation that has made the European system so effective.

    The political instability in Latin America presents unique human rights issues. Among them is the widespread use of state-sanctioned kidnappings known as "disappearances." (3) Disappeared persons are typically political opponents or grassroots activists. (4) Disappearances are usually carried out by heavily armed security or military personnel, often in uniform and often in front of witnesses, followed by official denial of the detention. (5) The disappeared person is often tortured and, if death does not directly result, the individual is "generally executed in summary, extrajudicial fashion." (6)

    During the 1970s and 1980s the practice of disappearances was widely used by military regimes throughout Latin America. (7) The Inter-American Court commented on the prevalence of this scourge in the late 1980s:

    Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use not only for causing certain individuals to disappear, either briefly or permanently, but also as a means of creating a general state of anguish, insecurity and fear, is a recent phenomenon. Although this practice exists virtually worldwide, it has occurred with exceptional intensity in Latin America in the last few years. (8) The Inter-American Commission noted that the government of Peru acknowledged 5000 complaints of disappearances were reported between 1983 and 1991. (9)

    The increase in disappearances corresponded with the formative years of the Inter-American human rights system. This intersection had implications for many aspects of Inter-American jurisprudence. The impact of this intersection was particularly significant in the development of the right to habeas corpus.

    On one hand, the widespread use of disappearances underscored the inviolability of the right to habeas corpus, which was already a prominent feature in most American legal systems. As the bulwark against arbitrary detention at the hands of government, the habeas corpus remedy was viewed as the front line in the struggle against disappearances. As we will see, this struggle has led to an elevation of habeas corpus to the ranks of the most protected rights in the Inter-American human rights system.

    On the other hand, the cases of the Inter-American Court and Commission have focused primarily on whether habeas corpus is available at all. In the majority of these cases, a violation of the right was found because a disappeared person was not able to exercise the right. As a result, judicial interpretation of the meaning and proper application habeas corpus is somewhat lacking.

    The right to habeas corpus is guaranteed in both the American Declaration and the American Convention. (10) Article XXV of the American Declaration provides, in part, that: "Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court...." (11) Article 7, Paragraph 6, of the American Convention also guarantees the right to habeas corpus:

    Anyone who is deprived of his liberty shall be entitled to recourse to competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person on his behalf is entitled to seek these remedies. (12) The purpose of this article is to define the scope of the right to habeas corpus in the Inter-American system by examining the drafting history of these treaties and their application by the Inter-American human rights institutions.


    The First International Conference of American States in (1890) was the first of a series of periodic meetings held by the states of the Western Hemisphere to discuss matters of trade and cooperation. (13) During the early twentieth century, these conferences increasingly addressed matters of mutual defense and interstate consultation. As World War II drew to a close, the prospect of a new postwar international order prompted the convening of the Inter-American Conference on the Problems of War and Peace in Mexico City. (14) This conference contemplated the formation of a regional intergovernmental organization and participation of the American States in the United Nations.

    The final act of the Mexico City conference, known as the Act of Chapultepec, contained several resolutions furthering the goal of forming an intergovernmental organization. Resolution IX called for the appointment of a special committee to draft an "Organic Pact" that would serve as the basis of a permanent regional intergovernmental organization. (15) The revised version of the Organic Pact was ultimately adopted as the Charter of the Organization of American States (O.A.S.) by the Ninth International Conference of American States in Bogota in (1948). (16)

    Resolution XL of the Inter-American Conference on Problems of War and Peace tasked the Inter-American Judicial Council with preparing a draft American Declaration of the International Rights and Duties of Man. (17) This resolution contemplated the adoption of the American Declaration as a formal convention. (18) The Council's initial draft declaration, prepared pursuant to Resolution XL, included the right to be free from arbitrary arrest, (19) but did not include a specific right to habeas corpus. (20) A final draft, still without a habeas corpus provision, was submitted for consideration at the Bogota Conference. (21)

    Numerous proposals were submitted by states for consideration in Bogota. Among these was a Panamanian proposal to add an article guaranteeing all detained persons the right to a judicial determination of the legality of their detention. (22) This proposal was considered by the working group on human rights and was incorporated into its proposed text dated April 17, 1948, in what was essentially its final form. (23) The American Declaration was adopted as a resolution of the Bogota Conference in April 1948, (24) nearly eight months before the adoption of the Universal Declaration of Human Rights.

    The American Declaration was adopted as a nonbinding declaration and not as a treaty. (25) However, following the amendment of the O.A.S. Charter by the Protocol of Buenos Aires, (26) it is generally recognized that the American Declaration provides an authoritative definition and interpretation of the human rights obligations by which O.A.S. member states are bound under the Charter. (27) The Inter-American Court of Human Rights has confirmed that the "[American] Declaration is the text that defines the human rights referred to in the Charter" and is therefore "a source of international obligations related to the Charter of the Organization" for those states. (28)

    1. Interpreting Article XXV of the American Declaration

    The original Charter of the O.A.S. did not create any human rights institutions. (29) In 1959, the Inter-American Commission on Human Rights was established as an autonomous entity of the O.A.S. charged with furthering respect for human rights in the Inter-American system. (30) A limited petition system was established in 1966 allowing the Commission to receive individual communications. (31) The Commission became a charter organ in 1970 when amendments to the Charter under the Protocol of Buenos Aires took effect. (32)

    The charter-based human rights system applies to all O.A.S. member states regardless of whether they have ratified the American Convention. (33) For member states that are not party to the American Convention, the Commission has the competence to receive communications related to provisions of the American...

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