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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett (Assistant), Kate (20th May 2010)

Part IV The Content of International Responsibility, Ch.51.2 Responsibility for Violations of Human Rights Obligations: Inter-American Mechanisms

Raphaële Rivier

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant)

(p. 739) Chapter 51.2  Responsibility for Violations of Human Rights Obligations: Inter-American Mechanisms

[E]very violation of an international obligation which results in harm creates a duty to make adequate reparation.1

In upholding the international responsibility of Honduras for breach of the American Convention on Human Rights,2 the Inter-American Court of Human Rights reaffirmed the principle of customary international law pursuant to which every wrongful act committed by a State entails its responsibility.3 The institution of State responsibility consists of two elemental (p. 740) rules: the first describes the preconditions for the existence of State responsibility; the second imposes an obligation to make reparation. These rules apply irrespective of the origin of the obligation breached, but they do not exclude the possibility that a treaty (or the entities which apply it) may itself lay down either different preconditions for the incurring of responsibility, or responsibility having a different content, as the result of a violation of its provisions. In such a case, these two customary rules apply subject to the terms of any applicable treaty.

The Inter-American system for the protection of human rights consists of a number of different treaties, each having its own control mechanism. The first of these is the Charter of the Organization of American States,4 a multilateral treaty adopted in 1948, which forms the constituent instrument of that organization. In its original form, the Charter contained few provisions on human rights; however, the Protocol of Buenos Aires, adopted in 1967, institutionalized the Inter-American Commission on Human Rights, which had been created by resolution in 1959, and conferred upon it, as its principal function, the promotion of ‘observance and protection of human rights’.5 Pursuant to article 1(2) of its Statute,6 the Inter-American Commission exercises this function by reference to both the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man, a resolution adopted by the Ninth International Conference of American States in 1948.7 Although originally envisaged as being non-binding, the American Declaration is now considered to constitute an authentic interpretation of article 3(l) of the OAS Charter (as amended), which proclaims the fundamental rights of the individual.8 However, the key instrument in the Inter-American system of protection is the American Convention on Human Rights, adopted at the San José Conference in 1969. Article 33 of the American Convention confers on the Inter-American Court and Inter-American Commission ‘competence with respect to matters relating to the fulfilment of the commitments made by the States Parties to this Convention’. By article 41, the Inter-American Commission is expressly charged with ‘promot[ing] respect for and defense of human rights’. The jurisdiction of the Inter-American Court under article 62(3) extends to ‘all cases concerning the interpretation and application of the provisions of this Convention … , provided that the States Parties to the case recognize or have recognized such jurisdiction … ’. Twenty-four states are currently party to the American Convention, of which 23 have accepted the jurisdiction of the Inter-American Court. In addition, the Inter-American Commission and the Inter-American Court also oversee the proper application of any other regional instrument which confers jurisdiction on them. There is thus a multitude of regimes of protection, based on distinct texts and on the acceptance of specific jurisdictional commitments. For the sake of simplicity, these regional arrangements will be referred to collectively as ‘Inter-American law’.

(p. 741) Within the limits of their respective individual commitments, the member States of the OAS have undertaken various rules of conduct in relation to the protection of human rights. They have further created mechanisms of dispute resolution applicable to those rules of conduct, albeit without systematically providing for accompanying rules relating to the consequences of their violation. It follows that it is for the bodies applying Inter-American law to determine the conditions under which the obligation to make reparation arises, as well as to establish the processes by which that obligation is implemented.

By basing their conclusions on customary law or referring to the decisions of international courts of general jurisdiction, the Inter-American Court and Inter-American Commission have sometimes sought to escape from the limited role assigned to them by Inter-American law. This tendency to locate the interpretation and application of the texts of which they are the guardians within general international law manifests itself in particular in cases raising issues of State responsibility. However, although they seek to limit the autonomy of those texts, the Inter-American Court and Inter-American Commission are not organs of general competence. The material scope of their contentious jurisdiction does not permit them to hear each and every dispute relating to the interpretation or application by a member State of the OAS of its international obligations, even if those obligations relate to human rights. First, certain Inter-American conventions do not contain any provision explicitly conferring jurisdiction in relation to their interpretation and application in human rights disputes. Accordingly, the Court has held that it has no jurisdiction to monitor compliance with the 1985 Inter-American Convention to Prevent and Punish Torture9 and that its jurisdiction extends only to inquiring whether and to what extent particular conduct constitutes a breach of the American Convention.10 Further, the Inter-American Court refused to apply international humanitarian law in a case in which the Inter-American Commission had asked the Court to hold that Colombia had breached common article 3 of the 1949 Geneva Conventions; the Court held that the American Convention ‘has only given the Court competence to determine whether the acts or the norms of the States are compatible with the Convention itself, and not with the 1949 Geneva Conventions’.11 In the end, the Inter-American Court is an institution empowered to ensure the implementation of specific treaty commitments. Although it does not exclude the possibility of interpreting those commitments in the light of customary international law or other treaties from which it derives no jurisdiction, it does not have specific jurisdiction in respect of those other instruments.

Where a court is empowered only to rule on the application of a particular convention (as is the case with the Inter-American Court), it has no power to establish the responsibility of a State under general international law. It applies rules which are separate from general international law, so that its judgments do not establish the responsibility on the basis of general international law, although substantively the solutions arrived at will often coincide with those which would be arrived at under general international law. For example the Court may be called on to apply rules which refer back to general international law. Such a reference can be provided for by the particular convention (as is the case, for example, with article 46(1)(a) of the American Convention, pursuant to which the rule requiring exhaustion of domestic (p. 742) remedies is to be applied ‘in accordance with generally recognized principles of international law’) or it may result from the intervention of the Court in determining the applicable law.

Accordingly, it can be seen that the Inter-American Court and Inter-American Commission are specialized organs, empowered to ensure compliance with a system of regional law. The rules relating to State responsibility for violation of Inter-American norms may thus be seen as rules which are tailored in order to ensure the implementation of those norms. Hence, the law of State responsibility in the Inter-American system comprises rules which are formally distinct from the rules of the generally applicable law of responsibility. Does it therefore constitute a self-contained regime? The answer is far from being self-evident.

The Inter-American system would be self-contained if it excluded the application of all the rules of general international law where there is a violation of the Inter-American law. However, although the rules governing State responsibility for breach of the Inter-American law differ in certain aspects from the generally applicable rules under customary international law, they do not derogate from them. On the other hand, the Inter-American mechanisms relating to the implementation of State responsibility may be considered to exclude the applicability of general international law, and consequently displace it. An analysis of the content of the Inter-American rules relating to State responsibility and the techniques it applies in the implementation of responsibility permits this phenomenon to be verified, as well as serving to highlight the specificity of the regime compared to that under general international law. Such an analysis must take into account, in particular, the primary aim of the system, which is not to create legal relationships between its member States, but to regulate relationships between individuals and between individuals and the State. As a matter of its internal rules, the Inter-American system establishes, inter alia, direct international rights for the benefit of individuals, irrespective of their nationality, with the result that the responsibility of a State may be invoked in respect of treatment of any individual, including its own nationals.

This particularity of rules pertaining to human rights does not have any significant impact on the approach of the Inter-American organs to State responsibility; they have reached solutions similar to those adopted under general international law, reinforcing and enriching those rules to a greater extent than they have rejected them. However, while the rules of general international law are primarily aimed at application outside the context of litigation, the rules contained in the Inter-American system benefit from powerful mechanisms of enforcement. It is when Inter-American State responsibility is engaged in a particular case within the Inter-American system that it takes on its full force and specifi city in comparison to that under general international law.

Inter-American State responsibility

Two rules of positive Inter-American law shape the Inter-American law of State responsibility for internationally wrongful acts. The first sets out the preconditions for State responsibility and permits identification of the responsible State. The second establishes the content of that responsibility by attaching a particular consequence to a violation of Inter-American law. These rules will be examined in turn.

(a)  The conditions for State responsibility in the Inter-American system

Inter-American law identifies as responsible those States which have violated their obligations under Inter-American law by conduct which is attributable to them, where that violation has caused harm.

(p. 743) (i)  Violation of an Inter-American obligation

Inter-American State responsibility is premised on the existence of conduct by the State contrary to an Inter-American obligation by which it is bound. The violation from which State responsibility results in the Inter-American system constitutes a juridical fact; responsibility thus has an identical function to that under general international law, that is, to sanction the consequences of the non-compliance of particular conduct with the law. However, that does not exclude the possibility that the violation may result from the adoption of a particular juridical act, whether domestically or internationally, or from the way in which the State gives it effect, if that conduct contravenes the rights established under the American Convention.12 However, non-compliance of this type is not normally the intended effect of such acts and there is therefore no question of rendering the act internationally invalid, whether by declaring that it is void or simply unopposable.

The engagement of Inter-American State responsibility therefore presupposes material conduct which is contrary to an obligation of the State in force at the time of the conduct; that also means that even if an obligation is no longer in force, responsibility incurred for a violation which occurred at a time when it was in force persists.13 However, while general international law is concerned with every violation by a State of its obligations irrespective of their origin or their objective, Inter-American State responsibility is triggered only by a violation of an Inter-American obligation. In other words, a violation by an OAS member State of an obligation towards a third State does not amount to unlawful conduct under Inter-American law. This restriction aside, which relates to the formal source of the obligation, unlawful conduct under Inter-American law bears the same characteristics as under general international law.

There are different ways in which an obligation under Inter-American law may be breached. Conduct which is contrary to that which is required of a State may consist of an act or an omission.14 It may be instantaneous or can extend over a period of time. In Blake, concerning the disappearance and murder of two American citizens in Guatemala in March 1985 whose remains were not discovered until June 1992, the Inter-American Court drew a distinction between a continuous violation and one which has already been accomplished, and held that forced disappearance constituted a continuing violation so long as the fate of the relevant person remained unknown.15 The violations in Blake thus extended over the period of seven years from the kidnapping, namely over ‘the entire period during which the act continue[d] and remain[ed] not in conformity with the international obligation’.16 The characterization of the internationally wrongful act as continuing permitted the Court to find that it had jurisdiction ratione temporis; the problem arose because Guatemala, although having been party to the American Convention since 1978, had not accepted the compulsory jurisdiction of the Inter-American Court (p. 744) until 1987, whilst the initial relevant acts had taken place in 1985. The Court held that the kidnapping, detention and murder of the victims, which occurred in March 1985, could not be regarded as constituting a continuing violation so as to be subject to scrutiny by the Court.17 However, it declared that it had jurisdiction to consider the concealment of those acts and the ‘disappearance’ of the victims, which had extended for a period of over five years after Guatemala’s acceptance of the Court’s compulsory jurisdiction.18

Inter-American law, like customary international law, precludes a State from relying on domestic law to justify a violation of its obligations. A finding that an act is unlawful under Inter-American law is therefore independent of any internal judicial order which may validate the act.19 It further does not depend on whether or not the act complies with the domestic law of the State. In that regard, the Inter-American Court has construed the ‘federal clause’ in article 28 of the American Convention in light of the principle of general international law according to which a State cannot invoke its own internal (federal) structure to excuse a violation of its international obligations, nor to escape its obligation to make reparation.20

Can the State invoke its commitments to third parties in order to justify a violation of regional obligations? The Inter-American institutions have never had to decide a case where the State was subject to an Inter-American obligation which put it in breach of another international rule. The Court nevertheless accepts that it has jurisdiction ‘to determine whether any norm of domestic or international law applied by a State, in times of peace or armed conflict, is compatible or not with the American Convention’.21 The Court has stated that, in exercising that jurisdiction, it is subject to no normative limitation: any legal norm may be submitted to such an examination of compatibility.22 Accordingly, the performance by a State party to the American Convention of its obligations owed to third parties is not automatically exempted from the scope of jurisdiction under the American Convention.

Consequently, the Inter-American institutions will probably require State parties to the American Convention to make the latter prevail over any contrary international obligations. This ‘priority’ of application of obligations would mean that State parties might be required to breach some other international rule which has been held to be in contravention of the American Convention. However, such a ruling requiring a State party to comply with its obligations under the American Convention to the exclusion of its other obligations is necessarily relative; it cannot discharge States from performance of obligations owed to third parties. It is not for the Inter-American Court or Commission to lay down a mechanism which would preclude the wrongfulness of conduct which would otherwise be internationally wrongful, on the basis that that conduct is required by Inter-American law.

(p. 745) According to the Inter-American Court, modern human rights treaties in general, and the American Convention in particular:

… are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting states. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the state of their nationality and all other contracting states.23

The objective character of the obligations under the American Conventions prevents State parties from relying on circumstances involving the improper performance, or even total lack of performance by another State party in order to absolve itself of its own responsibility to perform its own obligations. First, Inter-American treaty obligations are not subject to the operation of the normal rules governing extinction or suspension as between the States in question; for instance, pursuant to its article 27, performance of the American Convention can only be suspended ‘in time of war, public danger, or other emergency that threatens the independence or security of a State Party’ (and only in respect of rights which are not in any case excluded from the application of that provision). Second, no conduct by one State party contrary to its Inter-American obligations can render subsequent conduct of another State party lawful. The operation of certain circumstance precluding wrongfulness is therefore excluded. Hence, conduct will be illegal even if an attempt is made to justify it as a countermeasure. The very character of the rights protected explains why they are not subject to the effects of reciprocity: as a matter of principle they depend solely on the quality of their beneficiaries as human persons. The consideration which those States which have undertaken such obligations are entitled to expect does not depend upon a similar corresponding counter-performance by other States in exchange, but consists in the very engagement to respect the right in question undertaken by the other State parties. It is for this reason that it is not entirely inaccurate to regard human rights obligations as constituting derogations from general international law; the latter in any event provides that such obligations cannot be affected by countermeasures.24 A residual issue is the effect of a State’s consent to the conduct which has caused harm, which under the general rules of State responsibility amounts to a circumstance precluding wrongfulness. Even assuming that the responsibility of the State breaching Inter-American law is not engaged as against the consenting State, their agreement to derogate does not exhaust the rights of other States, nor the rights of the beneficiaries of the obligation in question to have it respected. The responsibility of the State breaching Inter-American law will therefore in any case be incurred.

(ii)  Attribution of conduct which violates an Inter-American obligation to a State

The international responsibility of a State can only be engaged by conduct which is attributable to it. The attribution of conduct is also a constituent element for Inter-American responsibility.25 The subject whose conduct is to be examined by reference to the rules of Inter-American law is the State and attribution is the process which enables that scrutiny. The rule which defines Inter-American responsibility therefore provides the criteria for identification of the subject to which wrongful conduct is to be attributed. Since (p. 746) attribution serves to identify the State which is responsible for the harm, it enables a link to be made between the conduct of an actor and a subject of international law, in order to determine the responsibility of the latter. Although the rules of Inter-American law make individuals the beneficiaries of its guarantees, they only impose obligations on States. The Inter-American mechanisms do not impose civil responsibility under international law on the actor which materially carries out the conduct in question: their unlawful acts are not internationally unlawful for them since, not being subject to any obligation, they are by definition incapable of breaching those obligations. The Inter-American system does not add any new bases of attribution to the normal group of rules according to which conduct may be attributed to the State.

‘Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State’,26 and the classic solutions under general international law are also used by the Inter-American Court. Further:

this conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.27

The effectiveness of the system of protection of human rights justifies the reference to this rule of customary international law.28

The Inter-American Court has also made clear that the motivation of agents of the State29 or their hierarchical position30 are irrelevant. Further, the continuity of the State means that responsibility exists independently of any change of government.31 This is yet another affirmation of the irrelevance of the internal organization of the State in determining whether its responsibility is engaged. In addition:

[an] illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.32

The State here is not responsible for the acts of particular individuals, but for its own act, which is analysed as an omission. Article 1(1) of the American Convention indeed not only requires the State party to respect the rights recognized but also to ‘ensure’ to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms. This obligation to ensure the free and full exercise of the rights guaranteed by the American Convention:

implies the duty of States parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.33

(p. 747) Responsibility here sanctions the violation of an obligation of due diligence, the scope of which has in any event been extended by the Inter-American Commission.34 This process, which enables the link to be made between the active conduct of an individual and the passive conduct of a State, is not new.35

(iii)  Harm resulting from the relevant conduct

General international law requires at least two elements for the responsibility of a State to be engaged: that conduct is attributable to the State and that the conduct constitutes a violation of one of the State’s international obligations. Such conduct generates State responsibility and is its origin. However, the question arises whether those two elements are sufficient. The ILC Articles answer that question in the affirmative. At least as a general matter, damage is not therefore relevant for the identification of the responsible State. More modestly, it only serves to identify those who have a cause of action based on that responsibility. However, that approach is disregarded in the practice of the Inter-American organs.

In finding Cuba responsible for a violation of the article 1 of the American Declaration (the right to life, liberty and personal security), the Inter-American Commission declared that ‘damage or harm’ was one of the basic elements for establishing international responsibility.36 The same reasoning has been applied by the Commission in relation to a violation of the American Convention.37 Having found that that requirement was satisfi ed, the Inter-American Commission affirmed that the respondent State was under an ‘obligation to make reparations for the damages caused and compensate the families of the victims and survivors’.38 The Inter-American Court has concluded that the enactment and enforcement of a law which contravenes the American Convention constitutes a violation of that treaty which engages the State’s responsibility if it affects the rights and freedoms of specific individuals.39 It also distinguished between legal provisions which, by their very existence, are susceptible to injure individuals, and those which can do so only through means of enforcement.40 The Court therefore seems to admit, consistently with the approach of the European Court, that the mere enactment of a legislative provision is capable of engaging State responsibility if the individual is directly at risk of suffering consequences for which damages would be payable. Here, the consequences that arise from the relevant act (the obligation to make reparation) are subject to the existence of damage. (p. 748) It is true that the damage does not explain the fact that the State incurs responsibility, the origin of which lies in the act which has caused the damage. Nevertheless, damage is a condition for State responsibility, for a State will not be subject to the consequences of responsibility unless its unlawful act causes damage. As the Inter-American Court held in its first contentious case:

It is a principle of international law, which jurisprudence has considered ‘even a general concept of law,’ that every violation of an international obligation which results in harm creates a duty to make adequate reparation.41

(b)  The content of Inter-American responsibility

Inter-American responsibility consists of the obligation to make reparation, an obligation which is realized according to modalities similar to those encountered under the customary law of State responsibility.

(i)  The obligation to make reparation for the harmful consequences of an internationally wrongful act

In stating that ‘[i]t is a principle of international law, which jurisprudence has considered “even a general concept of law,” that every violation of an international obligation which results in harm creates a duty to make adequate reparation’,42 the Inter-American system restated a rule of customary international law, previously stated by the Permanent Court of International Justice.43 The rule of responsibility therefore operates objectively, attaching a particular consequence to the fact that the responsibility of a State is engaged after verification of a hypothesis which the rule envisages: a violation which is imputable to the State and causes damage. This consequence is embodied in the obligation to make reparation. Further, given that Inter-American law determines the scope of that obligation, its modalities and its beneficiaries, the responsible State cannot rely on its domestic law to justify its non-compliance.44

Inter-American law attaches effects to the harmful consequences of an act giving rise to international responsibility, whether one is dealing with the violation of a subjective right of a State (ie to have human rights obligations respected) or damage suffered immediately by the beneficiaries of the obligation in question, because Inter-American responsibility constitutes a mechanism for ensuring reparation. The Inter-American Court has authoritatively asserted that the system of protection of human rights, and in particular the American Convention, does not have any penal vocation:

[t]he international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible.45

(p. 749) In its judgment on damages in the same case, the Court reiterated its denial of the existence of any penal dimension or aim of the compensation awarded in respect of harm suffered by the victim of a violation, refusing to award punitive or exemplary damages.46 Inter-American responsibility does not therefore sanction a breach of international legality arising from the violation of a human right, nor does it have a deterrent effect, nor is intended to punish a State for its unlawful conduct. It is its function to restore the victim to his or her international rights, by guaranteeing reparation of the harm suffered. In this regard, the specificity of the Inter-American system in creating rights directly invocable by individuals logically finds its expression in the obligation to make reparation: an injured individual, just as is the case with an injured State, is the beneficiary of a secondary obligation to make reparation.

(ii)  Modalities of implementation: the relevance of traditional solutions

Although the Inter-American Commission may pronounce upon the obligation to make reparation incumbent on a responsible State, its rulings in that regard lack binding force. The Inter-American Commission lacks any powers to enforce its decisions and cannot impose on States any process by which they must comply with those pronouncements. The Inter-American Commission therefore limits itself to the formulation of proposals and recommendations with a view to remedying the situation under consideration. By contrast, the Inter-American Court has powers of enforcement and can order measures by way of reparation in its judgment on the merits.47 However, most often, in the absence of an agreement between the Inter-American Commission and the defendant State within the time limit fixed by the judgment on merits it delivers a separate judgment on the question of reparation.

The Court derives its powers from article 63(1) of the American Convention, pursuant to which:

… [i]f the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. 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.

Though this primary provision authorizes the Court to impose the modalities of reparation on the merits, the modalities it usually uses are largely borrowed from the customary international law on responsibility. According to the Court itself, ‘[t]his article codifies a rule of customary law which, moreover, is one of the fundamental principles of current international law, as has been recognized by this Court … and the case law of other tribunals’.48 This does not, however, preclude the fact that the nature of the violation in question determines what amounts to adequate reparation.

As regards restitutio in integrum, the Inter-American Court has declared that it is only one mode of reparation among others, given that it may prove to be unsatisfactory.49 In practice, however, the Court will opt for an alternative form of reparation only if it is satisfi ed that restoration of the status quo ante is impossible, insufficient or inadequate.50 (p. 750) By presenting restitution as the preferred means of reparation in relation to breach of an obligation under Inter-American law, the Inter-American Court apparently wished to demonstrate that the purpose of the Inter-American mechanisms of responsibility is to require the State to erase the consequences of violation and to restore the situation affected by the illegal act as regards the victim. The Court accordingly immediately adopted the principle of restitutio in integrum, as enunciated by the Permanent Court of International Justice,51 in an area in which the European Court of Human Rights has shown a certain reluctance to apply that principle as normally applicable under customary international law. The Inter-American Court has even confused restitutio with the principle of full reparation, holding that it ‘includes the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm’.52

Article 63(1) of the American Convention empowers the Inter-American Court to order that the victim be guaranteed enjoyment of the right violated. Measures of this type deal with the conduct of the State for the future, and are therefore equivalent to an order for cessation of a continuing illegal act.53 The Court can equally order reparation for the consequences of the measure or situation which results from the breach, which confers upon it a broad power to make injunctions. In cases involving Honduras the Inter-American Court showed restraint, refusing to order that Honduras was required, as a form of reparation, to carry out investigations, to prevent further disappearances and to punish the individuals responsible for the violations. However, in that regard, it referred to its previous judgments on the merits, in which it had declared that the obligation to guarantee the free and full exercise of the recognized rights comprised such measures.54 In later cases, the Court has recalled that the obligation to investigate had to be undertaken with seriousness and not as a mere formality,55 as well as emphasizing the need to investigate, prosecute, capture, try and sentence those responsible for human rights violations as a means of preventing impunity.56 If one follows the analysis adopted by the ILC, what is at issue here is the continuing duty of the responsible State to perform the primary obligation, separate from the question of reparation consequent upon its breach.57 Nevertheless, in another case involving forced disappearances, the Court ruled in favour of judicial measures of reparation and considered that adequate reparation under article 63(1) of the Convention would be comprised of ‘the continuation of the judicial proceedings inquiring into the disappearances of [the victims] and punishment of those responsible in conformance with Colombian domestic law’.58 Although such measures are aimed at bringing an end to a continuing illegality, they consist of more than a mere element of the duty to execute the primary obligation, as they also aim at eliminating the consequences of the illegal conduct, as well as guaranteeing to the victim that there will be no repetition of comparable violations. The measures do not derive from (p. 751) the primary obligation, but consist of the imposition of a new obligation, which brings them within the field of reparation, as is also indicated in article 30 of the ILC Articles.

Decisions of the Inter-American Court relating to compensation are based on the principles relating to reparation under customary international law. Therefore the Inter-American Court has conferred on the grant of compensation for violations of the human person the same role as compensation plays under customary law: the responsible State is bound to indemnify the damage caused by its act in so far as reparation by restitution is not possible.59 The compensation required covers both material loss and non-material damage, extra-patrimonial damage being generally calculated according to an equitable evaluation and supported by a methodical process often relying on expert reports.60 In order to establish the causal link between the internationally wrongful act and the injury, the Inter-American Court has distinguished between beneficiaries. As to heirs, it applies the principle of transmissibility of damage, subject to contrary proof by the respondent State.61 In a case concerning persons belonging to a tribal society which accepted polygamy and in which there existed no register of births and deaths, the Court identified the heirs by interpreting local customs in the light of general principles of law governing the identification of heirs;62 on that basis, the Court decided to award compensation to the different spouses of the victims.63 As for persons who, although not qualifying as heirs, are in a situation of ‘dependency’ vis-à-vis the victim, the Court has considered that material damage could not be presumed in their case. Such persons must therefore provide evidence of their financial dependence.64 On the other hand, for parents who do not qualify as successors, the Court presumes the existence of moral damage caused by the death of their children.65 In another judgment, the Inter-American Court relied on two arbitral awards dating back to the beginning of the 19th century in order to conclude that the moral suffering of a victim of a grave violation of human rights requires no specific proof.66

Though they do not belong to general international law, the rules relating to State responsibility in the Inter-American system substantially draw their inspiration from it, partly because those rules have been applied by institutions empowered to apply them by reference to customary international law. The applicable rules do not modify the content of the latter and, consequently, do not exclude its application. The consequences of a violation of an Inter-American obligation are therefore governed by Inter-American law as well as by customary international law.

The implementation of Inter-American State responsibility

Even though Inter-American State responsibility is engaged independently of it being invoked, it is nevertheless necessary to point out the different options open to States and the individual beneficiaries of guarantees, and the likely outcomes of those options. The contribution of Inter-American law to the protection of human rights and international (p. 752) State responsibility is most significant in terms of its implementation. It goes beyond classical solutions both as to the establishment of responsibility and to the consequences attaching to it.

(a)  Establishing Inter-American responsibility

The Inter-American system comprises a mechanism of dispute resolution which makes the concept of the responsible State an objective one, such as even to exclude general international law. Indeed, that mechanism organizes the techniques by which Inter-American State responsibility may be established, and complements them with a largely open-ended cause of action.

(i)  The objective and exclusive character of Inter-American responsibility

The rule which sets out the conditions for the existence of responsibility enables identification of the responsible State. The rule enumerates the necessary characteristics which must be present in order for a State to fall within the category of responsible States and does not require any form of legal act as a precondition to that responsibility arising. In the event of litigation, any judgment which decides that a State is responsible in law is therefore only declaratory of that state of affairs and is not constitutive of responsibility. However, it is not merely because the responsibility of a State is objectively engaged under international or Inter-American law that its responsibility is established. Accordingly, to affirm that a judgment making a finding of responsibility is only declaratory of that condition does not mean that it has no effect. If the judgment holds that the State is responsible, the latter can no longer claim that it is under no obligation to make reparation; its responsibility is beyond doubt. And if the judgment denies any responsibility, the State will no longer have to prove that it is not responsible. Thus, while the rule imposing responsibility is self-standing, it is only realized through those organs empowered to apply it. The rule supposes that in a particular situation the responsibility of one State or another will be acknowledged.

Under general international law State responsibility may, in certain circumstances, be a question of subjective appreciation of States. However, by establishing a procedure whereby an organ has power to interpret the law by means of binding decisions and can be called upon to adjudicate on the responsibility of State parties to the Inter-American Convention, Inter-American responsibility becomes an objective concept. Further, by recog nizing the right of individuals to initiate proceedings before the Commission, as well as in recognizing that the latter may appear before the Court in representing common interests, it removes the implementation of that responsibility from the classical purely inter-State framework. Does this therefore mean that these methods of dispute resolution are exclusive of those under general international law?

The general rules on international responsibility co-exist with those on Inter-American responsibility, which do not supplant but rather complement them. The responsibility of a State for a violation of the American Convention can therefore be engaged under general international law. Nevertheless, by providing for the competence of organs ‘with respect to matters relating to the fulfilment of the commitments made by the States Parties to this Convention’, should article 33 of the Convention be understood as excluding the establishment of the responsibility of a State for a violation of the Convention under general international law? Would a State party to the American Convention be entitled, (p. 753) basing itself on another jurisdictional basis, to claim reparation for harm which it has suffered following the violation of the Convention by another State party? May one State take action against another by way of representation of the interests of one of its nationals, which lacks procedural capacity, before an international court having general competence? By contrast to some other international treaties which affirm that their provisions are without prejudice to rules on dispute resolution already in force between the State parties, the American Convention does not specify whether the mechanisms it sets up to establish responsibility co-exist with other more general techniques of settlement of disputes. If one considers the underlying reasons for the commitment of State parties to the American Convention, which lies in the regime of collective guarantees of rights which they have established in favour of the subjects of the State, rather than of the States themselves,67 one might think that the means of protection provided by the Inter-American Convention exclude the rules of settlement of disputes under general international law. If that is correct, the American Convention therefore clarifies and limits the rights of the State such that the responsibility of a State for violation of the American Convention can only be held to be established under Inter-American law. It is only within the Inter-American system that such responsibility may be realized.

(ii)  Mechanisms for the establishment of Inter-American responsibility

The Inter-American Commission of Human Rights is competent to receive and examine individual petitions alleging a violation by an OAS member State of the rights proclaimed in the American Declaration. The American Convention also confers on the Commission competence to examine individual petitions and inter-State communications relating to the violation of the Convention of a State party.68 While the competence it derives from article 44 in relation to individual petitions is mandatory, that conferred by article 45 in relation to inter-state complaints is conditional, insofar as it is subject to acceptance by both the claimant and respondent States. Within the exercise of its functions, the Inter-American Commission is therefore frequently called upon to determine whether the conditions for the existence of Inter-American responsibility are present.

However, the responsibility of a State cannot be held to be established by this mechanism for two reasons. First, the Commission does not necessarily come to a decision on the basis of law, given that its competence extends to the American Declaration of 1948, whose mandatory scope is sometimes contested. Accordingly, in numerous cases in which the obligations of the respondent State were uncertain, the Commission has relied, with disconcerting assurance, on bodies of external rules in order to conclude that the American Declaration contains rules opposable to OAS member States. For instance, reliance on jus cogens enabled it to conclude that the United States was internationally responsible for having applied the death sentence to minors, based on a prohibition that the United States had refused to recognize as a customary rule, or even as having the characteristics of a rule of law.69 Second, the American Convention does not specify the effects in law of a report adopted by the Commission. Admittedly, such reports are an acknowledgment (p. 754) by an authority on which the American Convention confers competence to monitor the way in which the State parties discharge their obligations.

However, even if the Inter-American Commission officially establishes the existence of responsibility, its recommendations do not have any binding force and, even less, definitive authority. Indeed, the Inter-American Court has the power to entirely review and reopen any findings by the Commission. Action by the Commission therefore does not permit the responsibility of a State to be held to have been established and the accused State is entitled to contest that its responsibility is engaged, and therefore to deny that it is under an obligation to make reparation.

When its jurisdiction has been recognized by the respondent State, the Inter-American Court is competent to hear disputes relating to the interpretation and application of the American Convention and which have not been previously resolved following recommendations by the Commission. The judgments of the Inter-American Court are made on the basis of law and are binding. A judgment of the Court that a State is responsible cannot be contested by the responsible State, which is bound to comply with the judgment. Even though a judgment of the Court is the only unilateral means of establishing Inter-American responsibility, it is subsidiary and not exclusive, given that, in accordance with the terms of article 61(2) of the American Convention, the intervention of the Court depends on the failure to produce a settlement in proceedings before the Inter-American Commission. Accordingly, as a matter of Inter-American law, responsibility will be held to be established where the respondent State has recognized its responsibility during the proceedings before the Inter-American Commission, or, in default thereof, that responsibility is declared by a judgment of the Inter-American Court.

Nevertheless the judicial route for the establishment of responsibility, although subsidiary, offers a not unimportant guarantee of objectivity, to which is to be added the purposive and constructive method of interpretation adopted by the Inter-American in order to ensure the effective protection of the rights under the American Convention. Accordingly, the Inter-American Court has found violations of rights which are not included in the text of the American Convention; this is most obviously the case in relation to the practice of forced disappearances, which the Inter-American Court has characterized as constituting a ‘multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee’,70 a definition which appears to have influenced the European Court of Human Rights.71

Above all, the Inter-American Court has extended the situations in which State responsibility can be engaged by giving precise and concrete content to the duties of prevention and repression. Relying on article 1(1) of the American Convention, the Inter-American Court has made the doctrine of positive obligations to ensure human rights systematic, requiring the State not only to control its own activities, but also to protect individuals against acts which it does not directly control. Coupled with the method of attribution discussed above, such reasoning has the advantage of rendering possible the engagement of the responsibility of the State for acts committed by private persons against other individuals, where the ‘direct’ responsibility of the State might have been engaged only with (p. 755) difficulty. This reasoning has subsequently been transposed to all similar situations and in particular has been applied to the practice of forced disappearances.72 Based on article 1 of the American Convention, the Court has therefore been able to build a large and efficient system of protection, from which other specific treaties concluded within the framework of the OAS have drawn inspiration. Article 1 of the 1985 Inter-American Convention,73 the 1994 Inter-American Convention on Forced Disappearances,74 and article 7 of the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women75 contain the same notion relating to the guarantee of rights.

(iii)  Causes of action alleging responsibility

The individual right of recourse recognized by the American Convention and the OAS Charter enables individuals under the jurisdiction of a State party to bring a claim before the Inter-American Commission alleging that a State is responsible for a violation of its Inter-American obligations, as a result of which the individual has suffered harm. Within the framework of the American Convention, ‘any person, group of persons, or any nongovernmental entity legally recognized in one or more Member States of the Organisation’ is capable of filing a complaint.76 The exercise of the individual right of recourse is subject to certain conditions, including, among others, the exhaustion of local remedies; this is a manifestation of the subsidiary character of international proceedings and gives the State an opportunity to remedy the alleged international violation. The Court has rigorously applied this condition.77 The admissibility of requests also depends on the locus standi of the applicant. On this point, Inter-American law does not differ from general international law relating to international disputes. However, by granting to the individual the capacity to bring a claim directly before the Inter-American Commission, Inter-American law makes the individual the holder of a subjective right: that of obtaining reparation for harm suffered by him or her in consequence of a State’s unlawful conduct. The individual must therefore show that he or she is personally affected by the acts or omissions of the State. In this respect, Inter-American responsibility departs from typical inter-State relations of international responsibility.

By virtue of article 45 of the American Convention, any Contracting State may seise the Commission in relation to a violation of the provisions of the Convention by another State (p. 756) party, whoever the victims may be and therefore even if they are nationals of the defendant State. In practice States are reluctant to consent to this procedure: only 11 States have recognized the Commission’s competence to deal with inter-State requests. It was used for the first time in 2006, although the application, brought by Nicaragua against Costa Rica, was dismissed as inadmissible, inter alia on the basis of non-exhaustion of domestic remedies.78 But nevertheless its existence is significant, insofar as it is an example of a situation in which the Member States of a collective body are (subject to their provision of the necessary consent in that regard) given a right to commence an action to defend superior goals established by a treaty to which they have all signed up, implying that each State has an interest to act in order to ensure respect for objective legality.

Such a mechanism is not entirely consistent with the classic law relating to the settlement of international disputes, according to which the capacity to bring a claim depends on the personal interest of the claimant State in having the defendant observe the violated obligation. By providing for a means of action open to all Member States, the American Convention makes clear that a violation of its provisions affects the subjective right of each of them, in such a way that the capacity of each State party coincides with that of an injured State. This extension of standing before the Inter-American Commission indicates a willingness to protect a defined common interest. The general interest is protected by means of subjective rights conferred on the different States, such that each one may individually request respect for the guaranteed rights. In this way, the American Convention sets out obligations having effect erga omnes partes. This was affirmed by the Inter-American Commission, which extended this to all Inter-American obligations: ‘the obligations assumed by each Member State toward the Inter-American community, represented by its organizations and toward each and every one of the Member States of the Union … are obligations erga omnes’.79 All the participating States therefore hold an individual subjective interest that human rights, erga omnes partes obligations, are respected. By commencing an action before the Inter-American Commission against another State which violates an Inter-American obligation, a State does not represent the interests of the Inter-American community. It introduces an action with a view to ensure respect for an interest, which although collectively designated, is an individual interest of the applicant State: to see a rule which has the force of law between itself and the State respected.

Only States and the Inter-American Commission can seise the Inter-American Court; private individuals do not have a direct right of access to the court.80 Similarly, a respondent State before the Inter-American Commission can decide to refer the case before the Court.81 However, is the admissibility of the action before the Court linked to the capacity of the State as party to the proceedings before the Commission? In other words, and subject to reciprocal acceptances of jurisdiction, can any State party to the Convention submit to the Court a case against another State party, as soon as proceedings before the (p. 757) Commission exhausted? If the American Convention recognizes that all its participants have an individual subjective interest that its provisions are respected, why should it then restrain their procedural capacity? Article 61 simply provides that ‘States Parties’ to the Convention have ‘the right to submit a case to the Court’. The Inter-American Court has not had the opportunity to consider the question.

The American Convention further authorizes the Inter-American Commission to submit cases which cannot be settled amicably following its intervention to the Court, whatever the origin of the case, whether arising from an individual petition or an inter-State complaint. It further provides for the mandatory participation of the Commission in any contentious procedure brought before the Court:

The Convention … in addition to giving the Commission formal standing to submit cases to the Court and to request advisory opinions and to giving it in proceedings before the Court a quasijudicial role, like that assigned to the ‘Ministerio Público’ of the inter-American system, obligated to appear in all cases before the Court (Article 57 of the Convention).82

The Commission is an authority not to be confused with the member States of the organization; it acts, not as a representative of those from whom the claim originates, whether a State or an individual. It appears before the Court as a representative of community interests, as a third party agent. In this way the Inter-American system also departs from the classical inter-state framework of responsibility.

(b)  The consequences attaching to the establishment of Inter-American responsibility

Whilst the European Court of Human Rights does not have the power to decide what measures should be taken in execution of its judgments, the Inter-American Court possesses powers of injunction and monitoring of the execution of its judgments, enabling it to impose on the responsible State the means by which it must discharge its secondary obligations. The situation of the responsible State is therefore objective, determined by a binding judicial decision. Further, by attaching to the establishment of responsibility consequences going beyond those under customary law, and sometimes not relating to responsibility as perceived under general international law, the Inter-American Court has made full use of the latitude conferred upon it by article 63 of the American Convention.

(i)  Moves beyond classical solutions

While many of the aspects of reparation are borrowed from general international law, it is nevertheless an area in which the creativity of the Inter-American Court has manifested itself. Hence the Court has made use of the wide margin of appreciation permitted in the American Convention in order to grant non-pecuniary measures. For example, it has not hesitated to order Suriname to re-open a school and a medical dispensary,83 thereby dispensing with the requirement of a causal link between the harm suffered and the violation found.

The Inter-American Court has also demonstrated that its injunctive power of was of considerable importance when it came to granting compensation, providing directions as (p. 758) to the destination of payments ordered as reparation. For instance, in the early Honduran cases, it did not limit itself to making an order for payment of compensation: it also required that the sums granted to the children of the victims be placed in a blocked account at the Central Bank of Honduras and managed by a fiduciary,84 who was placed under a further duty to enhance the purchasing power of the sum allocated by the Court.85 The Inter-American Court repeated the process in the Aloeboetoe case, ordering the appointment of two fiduciaries upon whom it conferred the administration of a foundation; Suriname was required to contribute to the costs of setting up the foundation and prohibited from hindering its activities.86

Starting with the first contentious case in which it found that a violation of the American Convention had occurred, the Court has imposed on the responsible State a mandatory time limit of three months for compliance with its obligations. Even more remarkable is the fact that the Inter-American Court has recognized a power to supervise the manner in which effect is given to its judgments, even though no provision of the American Convention expressly empowers it to do so. In that regard, the Court has held that compliance with its judgments relating to compensation requires the maintenance of the original purchasing power of the award. If the responsible State does not abide by the judgment, as was the case with Honduras in relation to payment within the time limit originally set by the judgments, the Inter-American Court will order the payment of interest in order to protect the value of the compensation awarded.87 Such interest will cover not only the delay in payment but also the loss of value of the sum as from the date on which payment of the compensatory sum awarded should have been made.88

(ii)  Moves away from classical solutions

In a number of judgments against Peru relating to its treatment of civilians before military tribunals in conditions found by the Inter-American Court to be incompatible with the requirements of due process, the Court annulled domestic judicial acts which were otherwise compatible with Peruvian legislation; ordered that applicants be guaranteed a new trial compatible with the principles of due process; and required the adoption of measures reforming Peruvian law.89 Those measures were ordered by way of reparation. In doing so, the Court attached consequences to that concept clearly going beyond those flowing from general international law on responsibility.

In order for the Inter-American Court to have the power to nullify a domestic judgment, it would be necessary to demonstrate that that nullity followed as a result of the violation of an international rule dealing with the validity of domestic judicial acts. Further, it would be necessary to show that the Inter-American Court was in fact competent to (p. 759) order such measures. However, the American Convention is only concerned with the acts and omissions of States; it contains no rules dealing with domestic judicial decisions, nor does it expressly confer any power upon the Inter-American Court permitting it to annul domestic judgments or quash their effects.

The highest domestic courts of Peru adopted a position consistent with the text of the American Convention. In June 1999, the Sala Plena of the Supreme Council of Military Justice and the Second Transitional Criminal Chamber declared that the judgment on the merits in Castillo Petruzzi and the remedial sentence in Loayza Tamayo, respectively could not be executed; in their view, the domestic judgments remained valid despite the judgments rendered by the Inter-American Court. Given the affirmation that the domestic judgments in question were valid under Peruvian law, the Inter-American Court was limited to holding that those decisions constituted illegal acts and to concluding, in application of article 63(1) of the Convention, that it remained incumbent upon Peru to restore the victims’ rights in compliance with the original judgments.90

It is of course true that restitution is dependent upon stringent conditions; if the act giving rise to responsibility is a judicial act, restoration of the previous position presupposes that the act in question can be withdrawn or be declared null and void. However, in addition it must be established that the domestic judgment, or the material conduct which it formalizes, is in fact the act giving rise to the violation, an unlikely scenario. The alternative, more plausible, hypothesis is that the act from which the violation arises is an omission, the failure to guarantee them right to due process by the organs and agents of the Peruvian State at all stages of the proceedings. In any case, and even if the domestic judgments cannot be distinguished from such an omission, their annulment or withdrawal can only be carried out by a domestic decision. The approach of the Inter-American Court contributes to an erosion of the principle of responsibility, which on this approach operates not by ensuring reparation of the harmful consequences of an internationally wrongful act, but by affecting the validity of a domestic act.

But the Court had gone further, ordering Peru to modify its legislation which provided for the competence of military tribunals so that new judgments would be delivered by civil courts. That injunction, purportedly made as part of reparation, raises the question of the extent to which such measures may in fact be regarded as reparation for the breach of the primary obligation. To the extent that they may not, the Inter-American Court would appear to be embarking on a mission beyond that conferred on it by the American Convention, as was in fact argued by Peru. In its two Orders relating to enforcement, the Inter-American Court however considered that its judgments bound ‘all of the authorities and organs of the State’,91 relying in that regard on the rule according to which a State may not invoke its own domestic law to justify the violation of an international rule.92 Peru (p. 760) decided to withdraw, with immediate effect, its acceptance of the compulsory jurisdiction of the Inter-American Court; the Court subsequently held that action to be ineffective.93

This substantial extension of the potential consequences for the responsible State of an internationally wrongful act derives results from an effort by the Inter-American Court to consolidate and enhance the guarantee of human rights. The exercise by the Inter-American Court of its contentious powers nevertheless tends to divert the purpose of responsibility from its remedial function, therefore operating to blur the line between international responsibility and the international dispute. In that regard, one may postulate that State responsibility in the Inter-American system is now to be understood as governed by a self-sufficient special body of law, providing not only for consequences not envisaged by general international law, but also excluding some aspects of general international law in order to achieve its objective of the protection of human rights.

Further reading

  • E Abad Martínez, ‘Ciudadanía protección internacional de los derechos humanos: el caso del Perú y la Corte interamericana de derechos humanos’ (2000) 16 Anuario de derecho internacional 449
  • J Benzimra-Hazan, ‘Disparitions forcées de personnes et protection du droit à l’intégrité: la méthodologie de la Cour interaméricaine des droits de l’homme’ (2001) 47 Revue Trimestrielle des droits de l’homme 765
  • A Cançado Trindade, ‘Le système inter-américain de protection des droits de l’homme: état actuel et perspectives d’évolution à l’aube du XXIe siècle’ (2000) 46 AFDI 548
  • A Cançado Trindade, ‘Co-existence and Coordination of Mechanisms of International Protection of Human Rights’ (1987) 202 Recueil des cours 21
  • D Cassel, ‘El Perú se retira de la Corte: afrontará el reto el sistema interamericano de derechos humanos?’ (1999) 29 Revista instituto interamericano de derechos humanos 69
  • C Cerna, ‘The Structure and Functioning of the Inter-American Court of Human Rights (1979–1992)’ (1992) 63 BYBIL 135
  • C Cerna, ‘Questions générales de droit international examinées par la Cour interaméricaine des droits de l’homme’ (1996) 42 AFDI 715
  • G Cohen-Jonathan, ‘L’arrêt Velasquez’ (1990) 94 RGDIP 455
  • G Cohen-Jonathan, ‘Responsabilité pour atteinte aux droits de l’homme’, in La responsabilité dans le système international (Colloque du Mans 31 mai–2 juin 1990, Paris, Pedone, 1991) 101
  • H Dipla, La responsabilité de l’Etat pour violation des droits de l’homme—problèmes d’imputation (Paris, Pedone, 1994)
  • P Frumer, ‘La réparation des atteintes aux droits de l’homme internationalement protégés—Quelques données comparatives’ (1996) 27 Revue trimestrielle des droits de l’homme 329
  • P Frumer, ‘Entre tradition et créativité juridiques: la jurisprudence de la Cour interaméricaine des droits de l’homme’ (1995/2) RBDI 514
  • H Gros Espiell, ‘La Convention américaine et la Convention européenne des Droits de l’Homme. Analyse comparative’ (1989-VI) 218 Recueil des Cours 171
  • J Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge, CUP, 2003)
  • M Pinto, ‘La réparation dans le système interaméricain des droits de l’homme; A propos de l’arrêt Aloeboetoe’ (1996) 42 AFDI 733
  • (p. 761) V Rodríguez Rescia, ‘Las reparaciones en el sistema interamericano de protección de derechos humanos’ (1996) 23 Revista instituto interamericano de derechos humanos 129
  • B Santoscoy, La Commission interaméricaine des droits de l’homme et le développement de sa compétence par le système des pétitions individuelles (Paris, PUF, 1995)
  • D Shelton, ‘Reparations in the Inter-American System’, in D Harris & S Livingstone (eds), The Inter-American System of Human Rights (Oxford, Clarendon Press, 1998), 151
  • H Tigroudja, ‘L’autonomie du droit applicable par la Cour interaméricaine des droits de l’homme: en marge d’arrêts et avis consultatifs récents’ (2002) 49 Revue trimestrielle des droits de l’homme 67(p. 762)

Footnotes:

∗  This piece was originally finalized in April 2002.

Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 25; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 23, citing Factory at Chorzów: Jurisdiction, 1927, PCIJ, Series A, No 9, p 21; Merits, 1928, PCIJ, Series A, No 17, p 29; and Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, 174, 184.

American Convention on Human Rights, San José, 22 November 1969, OAS TS No 36; 1144 UNTS 123.

Cf art 1, ARSIWA.

Charter of the Organization of the American States, Bogotá, 30 April 1948, 119 UNTS 3, as subsequently amended by the Protocol of Buenos Aires, 27 February 1967, the Protocol of Cartagena de Indias, 5 December 1985, the Protocol of Washington, 14 December 1992 and the Protocol of Managua, 10 June 1993.

Art 106, Charter of the OAS (as subsequently amended).

Statute of the Inter-American Commission on Human Rights; approved by Resolution 447 of the General Assembly of the OAS, 9th Regular Session, October 1979; subsequently modified by Resolution 1098 of the General Assembly of the OAS, 21st Regular Session, June 1991.

American Declaration of the Rights and Duties of Man, OAS Resolution XXX, Final Act of the Ninth International Conference of American States, Bogotá (1948), reproduced in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (2007).

See 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), Inter-Am Ct HR, Series A, No 10 (1989), paras 43–47.

Inter-American Convention to Prevent and Punish Torture, Cartagena de Indias, 9 December 1985, OAS TS, No 67, reproduced in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (2007).

10  Durand and Ugarte v Peru, Merits, Inter-Am Ct HR, Series C, No 68 (2000), para 73ff.

11  Las Palmeras v Colombia, Preliminary Objections, Inter-Am Ct HR, Series C, No 67 (2000), para 33.

12  See International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts 1 and 2 of the American Convention on Human Rights)(Advisory Opinion OC-14/94), Inter-Am Ct HR, Series A, No 14 (1994), para 50; Loayza-Tamayo v Peru, Merits, Inter-Am Ct HR, Series C, No 33 (1997), paras 24; 51–55.

13  Cf art 78(2), American Convention on Human Rights.

14  See eg the observations of the Inter-American Commission in relation to the responsibility by Cuba as the result of omissions: Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser. L/V/II.97, Chapter V, para 58.

15  Blake v Guatemala, Merits, Inter-Am Ct HR, Series C, No 36 (1998), paras 65 and 67; see previously Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 155, and Godínez Cruz v Honduras, Merits, Inter-Am Ct HR, Series C, No 5 (1989), para 163.

16  See art 14(2) ARSIWA.

17  Blake v Guatemala, Preliminary Objections, Inter-Am Ct HR, Series C, No 27 (1996), para 34; Merits, Inter-Am Ct HR, Series C, No 36 (1998), para 53.

18  Blake v Guatemala, Preliminary Objections, Inter-Am Ct HR, Series C, No 27 (1996), para 40; Merits, Inter-Am Ct HR, Series C, No 36 (1998), para 67.

19  Certain Attributes of the Inter-American Commission of Human Rights, (Advisory Opinion OC-13/93), Inter-Am Ct HR, Series A, No 13 (1993), paras 26–27.

20  Garrido and Baigorria v Argentina, Reparations and Costs, Inter-Am Ct HR, Series C, No 39 (1998) para 38; The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (Advisory Opinion OC-16/99), Inter-Am Ct HR, Series A, No 16 (1999), paras 138–140.

21  Las Palmeras v Colombia, Preliminary Objections, Inter-Am Ct HR, Series C, No 67 (2000), para 32.

22  Ibid.

23  The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), (Advisory Opinion OC-2/82), Inter-Am Ct HR, Series A, No 2 (1982), para 29.

24  Cf art 50(1)(b), ARSIWA.

25  See, inter alia, Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 160.

26  Ibid, para 172.

27  Ibid, para 170.

28  Ibid, para 171.

29  Ibid, para 173.

30  Ibid, para 183.

31  Ibid, para 184.

32  Ibid, para 172.

33  Ibid, para 166.

34  Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev. at 127, paras 80–96.

35  See United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Report 1980, p 3, 31–33 (paras 63–67); see also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, p 14.

36  Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev. at 127, para 76.

37  Arges Sequeira Mangas v Nicaragua (Case 11.218), Inter-Am Com HR, Report No 52/97 of 18 February 1998 Annual Report of the Inter-American Commission on Human Rights 1997, OEA/Ser.L/V/II.98, Doc. 6, para 142.

38  Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev., 127 para 104.

39  International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts 1 and 2 of the American Convention on Human Rights) (Advisory Opinion OC-14/94), Inter-Am Ct HR, Series A, No 14 (1994), para 50.

40  Ibid, paras 41–43.

41  Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 25, quoting Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29.

42  Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 25.

43  Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29.

44  Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), para 44.

45  Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 134.

46  Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 38.

47  Gangaram Panday v Suriname, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 16 (1994).

48  Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), para 43.

49  Ibid, para 49.

50  Ibid; see also Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 189; Gangaram Panday v Suriname, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 16 (1994), para 69; Neira Alegría et al v Peru, Merits, Inter-Am Ct HR, Series C, No 20 (1995), para 89; Caballero Delgado and Santana v Colombia, Reparations and Costs, Inter Am-Ct HR, Series C, No 31 (1997), paras 15–17.

51  Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, 47.

52  Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), paras 24–26.

53  Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), para 46.

54  See Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 34; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 32.

55  El Amparo v Venezuela, Reparations and Costs, Inter-Am Ct HR Series C No. 28 (1996), para 61.

56  Case of the ‘White Van’ (Paniagua Morales et al v Guatemala), Merits, Inter-Am Ct HR, Series C, No 37 (1998).

57  See art 29, ARSIWA.

58  Caballero Delgado and Santana v Colombia, Merits, Inter-Am Ct HR, Series C, No 22 (1995), para 69.

59  See Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), paras 26–27, 30–31; Castillo Páez v Peru, Reparations and Costs, Inter Am-Ct HR, Series C, No 43 (1998), para 69.

60  See Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 51; Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), paras 87–90.

61  Ibid, para 54.

62  Ibid, paras 61–62.

63  Ibid, paras 65–66

64  Ibid, para 68.

65  Ibid, para 76.

66  Castillo Páez v Peru, Reparations and Costs, Inter Am-Ct HR, Series C, No 43 (1998), para 86, referring to Maal, 1 June 1903, 10 RIAA 730, 732, & 733; Campbell, 10 June 1931, 2 RIAA 1145, 1158.

67  See Ivcher Bronstein v Peru, Competence, Inter-Am Ct HR, Series C, No 54 (1999), para 42; Case of the Constitutional Court v Peru, Competence, Inter-Am Ct HR, Series C, No 55 (1999), para 41.

68  Arts 44 and 45, American Convention on Human Rights.

69  See eg Pinkerton and Roach v United States (Case 9647), Inter-Am Com HR, Report No 3/87 of 22 September 1987, Annual Report of the Inter-American Commission on Human Rights 1986–87, OEA/Ser. L/VII. 71, Doc. 9, Rev. 1, 146–147, paras 50–56. See also Coard et al. v United States (Case 10.951), Inter-Am Com HR, Report No 109/99 of 29 September 1999, Annual Report of the Inter-American Commission on Human Rights 1999, OEA/Ser.L/V/II.106 doc. 6 rev, paras 38–40.

70  Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 155.

71  See eg Timurtaş v Turkey (App No 23531/94), ECHR, Reports 2000-VI, para 103.

72  See Godinez-Cruz v Honduras, Merits, Inter-Am Ct HR, Series C, No 5 (1989); Case of the ‘White Van’ (Paniagua-Morales et al) v Guatemala, Preliminary Objections, Inter-Am Ct HR, Series C, No 23 (1996); Castillo Páez v Peru, Preliminary Objections, Inter-Am Ct HR, Series C, No 24 (1996); Loayza Tamayo v Peru, Preliminary objections, Inter-Am Ct HR, Series C, No 25 (1996); Garrido and Baigorria v Argentina, Merits, Inter-Am Ct HR, Series C, No 26 (1996).

73  Inter-American Convention to Prevent and Punish Torture, Cartagena de Indias, 9 December 1985, OAS TS, No 67, reproduced in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (2007).

74  Inter-American Convention on Forced Disappearances, Belém do Pará, 9 June 1994, reproduced in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (2007).

75  Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, Belém do Pará, 9 June 1994, reproduced in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (2007).

76  Art 44, American Convention on Human Rights.

77  See In the matter of Viviana Gallardo et al., Inter-Am Ct HR, Series A, No 101/81, decision of 13 November 1981, paras 26–27; Velázquez Rodríguez v Honduras, Preliminary Objections, Inter-Am Ct HR, Series C, No 1 (1987), paras 60–68, 88; Fairén Garbi-Solís Corrales v Honduras, Preliminary Objections, Inter-Am Ct HR, Series C, No 2 (1987), para 8; Godínez Cruz v Honduras, Preliminary Objections, Inter-Am Ct HR, Series C, No 3 (1987), para 90; Gangaram Panday v Suriname, Preliminary Objections, Inter-Am Ct HR, Series C, No 12 (1991) para 39; Castillo-Páez v Peru, Preliminary Objections, Inter-Am Ct HR, Series C, No 24 (1996), para 43.

78  Nicaragua v Costa Rica (Interstate Case 1/06), Inter-Am Com HR, Report No 11/07 of 8 March 2007, Annual Report of the Inter-American Commission on Human Rights 2007, OEA/Ser.L/V/II.130, Doc. 22, rev. 1.

79  Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev., 127, para 78. See also Coard et al v United States (Case 10.951), Inter-Am Com HR, Report No. 109/99 of 29 September 1999, Annual Report of the Inter-American Commission on Human Rights 1999, OEA/Ser.L/V/II.106 doc. 6 rev, para 39; Arges Sequeira Mangas v Nicaragua (Case 11.218), Inter-Am Com HR, Report No 52/97 of 18 February 1998, Annual Report of the Inter-American Commission on Human Rights 1997, OEA/Ser.L/V/II.98, doc. 6, paras 143–144.

80  Art 61(1), American Convention on Human Rights.

81  Ibid, arts 51(1) and 61(1).

82  In the matter of Viviana Gallardo et al, Inter-Am Ct HR, Series A, No 101/81, decision of 13 November 1981, para 22.

83  Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), para 96.

84  Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 58; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 31.

85  Velásquez Rodríguez v Honduras, Interpretation of the Judgment of Reparations and Costs, Inter-Am Ct HR, Series C, No 9 (1990), para 31.

86  Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), paras 99–108.

87  Velásquez Rodríguez v Honduras, Interpretation of the Judgment of Reparations and Costs, Inter-Am Ct HR, Series C, No 9 (1990), paras 40–42.

88  See also Godínez Cruz v Honduras, Interpretation of the Judgment of Reparations and Costs, Inter-Am Ct HR, Series C, No 10 (1990), para 40.

89  Loayza Tamayo v Peru, Reparations and Costs, Inter-Am Ct HR, Series C, No 42 (1998), para 192; Castillo Petruzzi et al v Peru, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 52 (1999), paras 221–222, 226; Cesti Hurtado v Peru, Merits, Inter-Am Ct HR, Series C, No 56 (1999), paras 151, 199.

90  Castillo Petruzzi et al v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 59 (1999); Loayza Tamayo v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 60 (1999).

91  Castillo Petruzzi et al v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 59 (1999), para 3; Loayza Tamayo v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 60 (1999), para 6.

92  Castillo Petruzzi et al v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 59 (1999), para 4; Loayza Tamayo v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 60 (1999), para 7.

93  Ivcher Bronstein v Peru, Competence, Inter-Am Ct HR, Series C, No 54 (1999), Case of the Constitutional Court v Peru, Competence, Inter-Am Ct HR, Series C, No 55 (1999).