The effectiveness of the Inter-American system for the protection of human rights
ADC made a case study aiming at measuring the effectiveness of the decisions of the Inter-American systems' protection organisms: the Inter-American Commission and the Inter-American Court.
In a region of failing democracies and persistent violation of rights, the Inter-American Commission on Human Rights (the Commission or the IACHR) and the Inter-American Court of Human Rights (the Court or the Inter-American Court) may contribute to positively shape the behavior of the States. As a matter of fact, both bodies, have provided an answer to thousands of victims by means of the petition-based system established in the American Convention on Human Rights (ACHR) and have set the standards that, to a greater or lower extent, led to significant legal and political reforms in the countries of the region.
All in all, the system's effectiveness is a key and constant concern in the discussions on the performance of the Inter-American System for the Protection of Human Rights (IASPHR). For many observers, the human and financial resources that the IASPHR uses in order to give an answer to the denial of rights are insufficient (1). Others point to the absence of formal mechanisms or consolidated practices that ensure the State's implementation of the Inter-American decisions (2). As a matter of fact, for some years now, a debate process has existed on the IASPHR within the framework of the Organization of American States (OAS) Permanent Council's Committee on Political and Juridical Affairs (CPJA), and many states and organizations have drafted proposals aimed at strengthening the IASPHR (3). The widespread perception is, so to speak, that the IASPHR could or should exert greater influence on the behavior of the states than it currently does.
This research study sheds some light on a matter strongly related to such widespread concern: the degree of compliance with the decisions adopted within the framework of the ACHR petition-based system. Despite the repeated need for strengthening the IASPHR and increasing its infuence, several questions necessary for a richer debate seem to have no final answers, neither have they been analyzed in great detail. To what extent are the decisions of the IASPHR effectively observed? Is it possible for us to reach a shared and empirically sustainable description to provide an answer? Is it possible to consistently measure over time the variations in the degree of observance of the Inter-American decisions? Of course, there is no final answer to these questions, but we could conduct an exercise in order to clarify some points of the matter.
Here, we shall focus on the measures used by the IASPHR to answer to the violations of rithts of the ACHR, adopted within the framework of the petition-based system. In other words, the remedies offered by the IASPHR in relation to a denial of rights declared as such through the procedures of the ACHR. The information contained in this paper specifies all the remedies adopted -whether recommended, authorized or ordered- in all final decisions of the IACHR and the Court for a 5-year period, and considers the degree of compliance with such remedies up to the present (4). The simple idea behind this survey is to offer quantitative information about a topic that is still presented, once and again, through narrative approaches mainly in the literature on the IASPHR. Consequently, our job is to give an answer to two main questions by using some quantitative tools: What are the remedies adopted by the Inter-American petition-based system? And, to what extent are they observed?
The results of this reseach work may lay down the foundations for future trends useful in the discussions on the potential reforms that may streamline the operation of the IASPHR, and the advisable methods to make a strategic use of litigation before the System's protection organs.
First, the work introduces the research methodology. Then, the results are presented through statistical charts and graphs. Last, we analyze the results and make some recommendations to help optimize the effectiveness of the IASPHR.
Notes:
• Document prepared by Fernando Basch, Leonardo Filippini, Ana Laya, Mariano Nino, Felicitas Rossi and Bárbara Schreiber. The authors would like to thank Víctor Abramovich for the review and remarks made on a draft of this document. Obviously, any possible errors and mistakes are the exclusive responsibility of the authors.
(1) From the OAS adjusted budget for 2009, 4.1% is destined to the IACHR and 1.97% to the Court. Ever since the approval of the reforms to the IACHR and the Court's regulations in 2000, the percentage of the OAS total budget destined to the two institutions has increased little more than 1% of the total, in almost ten years, going from 5% in 2000 to 6.07% in 2009. Information available at http://www.cidh.org/recursos.sp.htm and at http://www.corteidh.org.cr/donaciones.cfm). See also Ventura Robles, "La Corte Interamericana de Derechos Humanos: la necesidad inmediata de convertirse en un tribunal permanente", Annex 1, CEJIL Journal No. 1 (2005), pp. 23-24; Ayala Corao, “Reflexiones sobre el Futuro del Sistema Interamericano de Humanos”, IIDH Journal No.30-31, p. 113.
(2) Under article 68.1 of the ACHR, "The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties."
(3) Cfr. "Meeting in Mexico for the strenghthening of the Inter-American Human Rights System. Main issues and trends identified by the chairman of the meeting" CP/doc. 4329/08 corr. 1. On 5 March, 2009, the CPJA held a special session with the civil society on the Inter-American Human Rights System to consolidate their perspectives on the thinking process of the IASPHR. The CPJA's work and several proposals can be found at http://www.oas.org/consejo/sp/cajp/ddhh.asp#dialogo.
(4) We should not overlook that the concept defined herein as remedy is named reparation in the practice of the IACHR and the Court. We have decided to use the term remedy, commonly used in the Anglo-Saxon legal world, to avoid confusions in the description of the objectives pursued by the Inter-American Commission and the Court when ordering or recommending actions to the states: only some and not all of those requirements pursue strictly reparatory purposes of past violations; others seek to prevent future violations or other specific purposes such as the protection of victims and/or witnesses. The use of the term remedy instead of reparation makes a distinction between those measures seeking reparation in the strict sense, as defined in this section, and the others.