Notes From the Field: The Inter-American Court of Human Rights

Elizabeth Wheeler*

Part 5: The Impact of the Court

As a judicial body, the Inter-American Court is relatively new. While the Inter-American system boasts the first general declaration of human rights in the world,[1] the American Convention on Human Rights, which provides the primary framework of human rights protected by the Inter-American system, was not adopted until 1969.[2] And it was not until 1979 that the Statute of the Court was adopted by the Organization of American States (OAS) General Assembly.[3]

In 1980, the Court adopted its own Rules of Procedure,[4] yet did not publish a judgment on a contentious case until 1988.[5] In these years, the Court still managed to produce a wide range of thought-provoking case law, through eighteen advisory opinions, over one hundred judgments on preliminary objections, merits and reparations, and approximately fifty orders for provisional measures.[6] Despite its relatively recent beginnings, through the cultivation of a reputation for integrity and justice, the Inter-American Court has had a tremendous impact, encouraging the establishment of human rights law on the American Continent, and by contributing to international law worldwide.

One of the most obvious ways the Court's impact can be measured is by the increasing participation by OAS States. For example, in 1980, the only State over which the Court had jurisdiction was Costa Rica.[7] Today, the American Convention has been ratified by a majority[8] of countries on the American Continent. Of those that have ratified, the Inter-American Court has gained acceptance of jurisdiction from twenty-one[9] States - overall protection for 500 million people.[10] Even though the Court has ordered States to provide reparations in most of its forty-five contentious cases, and twenty[11] of twenty-one States have participated in some form of proceedings before the Court,[12] only one State has denounced the Convention and the jurisdiction of the Court[13] since it was established in 1980.

In my time at the Court, I have come to believe that one of the most important positive impacts of the Court is simply its existence as an independent tribunal for justice for human rights violations in Latin America. The Inter-American Court has served as the last hope for justice on a continent where the domestic judiciaries have often been extremely weak or infused with corruption.[14] Reading the detailed descriptions in the Court's jurisprudence of each petitioner's path to exhausting domestic remedies - which is one of the Court's jurisdictional requirements - it is easy to see that many of the human rights victims and their next of kin begin a daunting journey when they attempt to seek justice in their domestic courts.

For example, during the reparations phase of the Mack Case, I heard witnesses testify about a long, frustrating and dangerous process for the family members in seeking justice in domestic courts in Guatemala for the death of Myrna Mack. Witnesses testified that the crime scene had been "cleaned" by State agents before the taking of evidence, that the investigators in the case had been threatened or killed, and that Judges, fearing retribution in implicating the State, continually dismissed or transferred the case, each time starting the procedures from the beginning.

Additionally, during the June 2004 Public Session, I heard witnesses in the Carpio Nicholle Case testify about their need for provisional measures to protect them from harm as they completed the lengthy procedures before the Inter-American Commission and before the Court. Mr. Carpio Nicolle's daughter-in-law testified in the June Open Session about an attempt on her life in front of her home. That attempt critically wounded her guard, who had been employed by the State to protect her after her first request for provisional measures was granted by the Inter-American Court.[15] In each of the cases before the Court, when witnesses were asked what it means to them personally to bring their cases to the Inter-American Court of Human Rights and to finally be able to tell their stories to impartial jurists, their answers could be summed with one phrase: It means everything.

Indeed, I believe that one of the greatest impacts of the Inter-American Court is in the hearts and minds of the citizens on this continent, and in the participation of the States themselves.[16] In Latin American countries where military governments were the norm well until the 1980's,[17] generations of citizens may have been resigned to the role of the Courts as simply another arm reinforcing the State's power, and not as tribunals for truth and justice. In this way, the Inter-American Court serves as an important example for the independence of jurists and the rule of law.

Additionally, because accepting the jurisdiction of the Court may serve to establish the "good faith" and legitimacy of new governments in demonstrating internationally their commitment to maintaining basic human rights within their borders, its influence and jurisdiction has continued to expand. For example, Chile's ratification of the American Convention on Human Rights and acceptance of the Court's jurisdiction[18] came just three months after the end of the infamous military rule of General Augusto Pinochet.[19] And, after years of lobbying, human rights NGO's in Mexico finally succeeded in convincing the PRI - which at that time was facing a tough election against the party of newcomer Vincente Fox - to accept the Court's jurisdiction in 1998.[20]

Finally, the Court has also had a positive impact in contributing to the legitimacy of international human rights law and to a growing body of international human rights jurisprudence. The Court continues to contribute to growing understanding of human rights internationally.[21] Just as the Inter-American Court legitimizes the decisions of the International Court of Justice, the European Court of Human Rights and the African Commission by frequently citing their cases in its own judgments, so, too, do these esteemed international tribunals cite cases from the Inter-American Court. As interns, we are often asked to research jurisprudence from other international tribunals to better understand the current state of international law on a particular human rights topic, and to present that research to the Judges and the legal staff.

Beyond that, the Court's advisory opinions and sentences help to establish customary international law and clarify binding international obligations for all OAS member states. For example, the Court has held that the American Declaration on Human Rights is today a source of international obligations for all of the members of OAS,[22] regardless of whether they have accepted the Court's jurisdiction. This issue came up again in another famous advisory opinion requested by Mexico, the Advisory Opinion on the Right to Consular Relations. Mexico's use of the Advisory jurisdiction of the Court put political pressure on the United States, which had thirty-two Mexican nationals on death row who had not been informed of their right to speak with their consulate.[23] Recognizing its role as a contributor to international law, the Court employs strict and exacting standards in its production of its jurisprudence. Every sentence of every Judgment or Opinion is carefully researched, footnoted, double and triple checked, and polished before publication.

One of the questions I am frequently asked by fellow law students in the United States is whether the Court has any enforcement mechanisms that can force States to adhere to its binding judgments. In a word: No. The Inter-American Court, like other international tribunals, must rely on the good faith of those States that have voluntarily accepted its jurisdiction in complying with the judgments of the Court. As of this writing, there is only one "closed" case for which there is no on-going supervision of the compliance with the judgment.[24] One might think that the Court's function as a tribunal for reparations has been a failure.

However, the Inter-American Court employs a unique reparations scheme different from its European counterparts. While the European Court of Human Rights is limited to monetary awards for reparations, the Inter-American Court employs a broad notion of full restitution (restitutio in integrum) when granting reparations. In cases where full restitution is not possible, for example when the State has violated the victim's Right to Life, the Court takes action "that [will] tend to make the effects of violations that were committed disappear."[25] This has resulted in a number of creative solutions to full restitution where the violating State, in addition to monetary payments, has been ordered to: locate the mortal remains of victims, investigate the facts and identify and punish those responsible, publish in a national newspaper the judgment of the Court and to acknowledge responsibility or adopt legislation to adapt the State's legal system to international human rights norms. In this area, the Court's successes can be seen in the number of States that have complied by instituting constitutional amendments, enacting norms or passing regulations to protect human rights obligations through domestic law.[26]

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* Elizabeth Wheeler, J.D. expected 2005, is a student at Santa Clara University School of Law. This series of essays is based on her experience as an intern at the Inter-American Court of Human Rights during the summer of 2004.

[1] Sergio García Ramírez, Address at the inauguration of the first meeting of Presidents of Supreme Courts of Justice and Attorney Generals of Latin America and the Caribbean, and their European counterparts at the Inter-American Institute of Human Rights, San José, Costa Rica (April 19, 2004): "Inhabitants of this hemisphere with long memories know that our own charter, the American Declaration of the Rights and Duties of Man, was drawn up a few months prior to the universal charter."

[2] Available at http://www.corteidh.or.cr/general_ing/history.html.

[3] Id.

[4] Id.

[5] The first case for which the Court issued a sentence was Valasquez Rodriguez. Corte IDH. Caso Velásquez Rodríguez. Sentencia de 29 de julio de 1988.

[6] Sergio García Ramírez, Address at the inauguration of the first meeting of Presidents of Supreme Courts of Justice and Attorney Generals of Latin America and the Caribbean, and their European counterparts at the Inter-American Institute of Human Rights, San José, Costa Rica (April 19, 2004).

[7] Costa Rica ratified the American Convention on Human Rights on April 8th, 1980 and accepted the jurisdiction of the Inter-American Court on July 2, 1980. Available at http://www.cidh.org/Basicos/basic4.htm.

[8] Every country in the American Continent has ratified the Convention except: Antigua and Barbuda, Belize, Canada, Guyana, St. Kitts and Nevis, St. Lucia, St. Vincente and Grenadines, and the United States. Trinidad and Tobago is the only country to denounce the Convention after ratification, and did so on May 26, 1998. Available at http://www.cidh.org/Basicos/basic4.htm

[9] These countries are: Argentina, Barbados, Bolivia, Brazil, Chile, Columbia, Costa Rica, Dominican Republic, Ecuador, El Salvedor, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Urugay, and Venezuela. Trindad and Tobago accepted the jurisidiction of the Court in 1991, but denounced the American Convention in 1998. Available at http://www.cidh.org/Basicos/basic4.htm.

[10] Sergio García Ramírez, address (April 14, 2004).

[11] The only State which has neither been presented with nor presented a petition before the Court is Barbados. Available at http://www.cidh.org/Basicos/basic4.htm.

[12] For the Court's jurisprudence by country see http://www.corteidh.or.cr/paises/index.html.

[13] Trindad and Tobago accepted the jurisidiction of the Court in 1991, but denounced the American Convention in 1998. Available at http://www.cidh.org/Basicos/basic4.htm.

[14] See http://www.pict-pcti.org/courts/IACHR.html.

[15] The seventeen provisional measures ordered by the Court in the Carpio Nicholle Case can be found online at: http://www.corteidh.or.cr/seriee/index.html.

[16] Sergio García Ramírez, Address at the inauguration of the first meeting of Presidents of Supreme Courts of Justice and Attorney Generals of Latin America and the Caribbean, and their European counterparts at the Inter-American Institute of Human Rights, San José, Costa Rica (April 19, 2004): "The greatest strength of the whole, and also the highest hopes, are based on the political will of the individual States, constituted as the Organization of American States."

[17] Inter-American Court of Human Rights, available at http://www.pict-pcti.org/courts/IACHR.html.

[18] Chile ratified the American Convention and accepted the jurisdiction of the Court on August 21, 1990, available at http://www.oas.org/juridico/english/Sigs/b-32.html.

[19] See generally DARREN G. HAWKINS, INTERNATIONAL HUMAN RIGHTS AND AUTHORITARIAN RULE IN CHILE (2002).

[20] American Convention on Human Rights. Ratifications. Available at http://www.oas.org/juridico/english/Sigs/b-32.html.

[21] SUMMARY OF THE ANNUAL REPORT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS, FOR THE YEAR 2003, SUBMITTED TO THE OAS COMMITEE ON JURIDICAL AND POLITICAL AFFAIRS Washington, D.C., March 11, 2004 (See discussion on the advances in the areas of human rights law).

[22] Inter-American Court of Human Rights, Advisory Opinion OC-10/89, Interpretation of the American Declaration on the Rights and Duties of Man, para 35-46 (July 14, 1989).

[23] See JO PASQUALUCCI, THE PRACTICE AND PROCEDURE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS (2003).

[24] SUMMARY OF THE ANNUAL REPORT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS, FOR THE YEAR 2003, SUBMITTED TO THE OAS COMMITEE ON JURIDICAL AND POLITICAL AFFAIRS Washington, D. C., March 11, 2004. In the Last Temptation of Christ Case, the Court found that the State had fully complied with the Judgment issued on February 5, 2001, and it ordered the case closed. The compliance involved a Constitutional amendment and non-enforcement of a ruling of the Supreme Court of Chile.

[25] Bamaca Velásquez Case. Reparations. Series c 91.

[26] Sergio García Ramírez, Address at the inauguration of the first meeting of Presidents of Supreme Courts of Justice and Attorney Generals of Latin America and the Caribbean, and their European counterparts at the Inter-American Institute of Human Rights, San José, Costa Rica (April 19, 2004).