Mónica Leonardo (LL.M.) is a Guatemalan attorney specializing in human rights. She holds a law degree from Universidad Rafael Landívar in Guatemala and a Master of Laws degree from Georgetown University, in Washington, D.C., where she attended as a Fulbright Scholar. She is a proud alumna of Pearson United World College and a member of the Salzburg Global Seminar. She has worked as a consultant for United Nations agencies, USAID and GIZ, international NGOs and grassroots organizations. Mónica has kindly written a piece for this special series on the judicial dialogue between regional human rights courts from the perspective of the Inter-American system.
The Inter-American Court of Human Rights is one of three regional human rights tribunals, together with the African Court of Human and Peoples’ Rights and the European Court of Human Rights. While the judicial dialogue between the former two and the latter has enriched their respective jurisprudences, there has been a limited cross fertilization between the Inter-American and the African Human Rights systems. While treaties, instruments and legal traditions differ, the basic principles underlying them, in particular the protection of human rights and human dignity, form a common ground. Legal reasoning in respect of the application of these principles in one system can be a source of inspiration in another, notwithstanding their differences. Because of this, the African Court of Human and Peoples’ Rights can look at the human rights principles established by the specialized regional bodies in the Americas, to enable the circulation of a common understanding of fundamental rights.
THE OAS
The American States, in the framework of the Organization of American States, adopted a series of international instruments that have become the foundation of a regional system of human rights promotion and protection, known as the Inter-American System for the Protection of Human Rights. This system recognizes and defines the rights enshrined in those instruments, and establishes obligations with the purpose of promoting and protecting such rights.
The Inter-American System was formally started with the passing of the American Declaration of the Rights and Duties of Man in 1948. Additionally, the System includes other instruments, most prominently, the American Convention on Human Rights, an international treaty that contemplates the rights and liberties that must be respected by States Parties and establishes the Commission and Court as organs competent to hear issues regarding the compliance of agreements undertaken by States Parties to the Convention. The Convention has two additional protocols: The first is the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, or “Protocol of San Salvador,” and the second, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Other instruments are the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women; and the Rules of Procedure and Statutes of its organs.
ORGANS OF THE OAS
The Inter-American System of Human Rights is comprised of the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights. The primary function of the Commission is to promote the observance and defense of human rights and serve as an advisory body to the Organization of American States in such matters. On the one hand, the Commission has competencies with political ramifications, among which special emphasis should be given to the occurrence of visits in loco and the preparation of reports about the human rights situations in Member States. On the other hand, it undertakes functions with a quasi-judicial dimension. It is via this latter form of competence that it is able to receive denunciations of individuals or organizations relating to human rights violations, examine these petitions, and adjudicate cases with the assumption that they comply with admissibility requirements.
Among its most notable achievements is the 1978 report denouncing human rights violations committed by the Anastasio Somoza regime in Nicaragua and the 1980 report on Argentina that called international attention to systematic and massive abuses in that country, particularly the kidnapping and forced disappearance of thousands of opponents to the military government that ruled from 1976 to 1983. A 1998 site visit to Peru led to a groundbreaking report that accurately detailed, for the first time, the precarious situation of the rule of law under the government of then-President Alberto Fujimori.
The Inter-American Court is an autonomous legal institution whose objective is to interpret and apply the American Convention. The Inter-American Court exercises a contentious function, in which it resolves contentious cases and supervises judgments; an advisory function; and a function wherein it can order provisional measures.
Under the American Convention, only States Parties and the Commission have the right to submit a case to the Court. Therefore, the Court cannot entertain petitions submitted by individuals or organizations. As such, individuals or organizations that believe a situation exists in violation of the Convention and wish to use the Inter-American System must direct their complaints to the Inter-American Commission, which is competent to hear petitions presented by any person, group of persons, or legally recognized non-governmental entity that may have reports or complaints of violations of the Convention by a State Party. The Court is competent to hear any case submitted to it with regards to interpreting and applying the Convention, provided that the States Parties in the case have recognized its contentious jurisdiction. Each State Party can, at the time of formalizing its instrument of ratification or adhesion to the American Convention, or at any other prior time, declare that it recognizes the jurisdiction of the Court as an ipso jure obligation.
The strengthening of the case system has not only allowed human rights advocates to secure justice for individual petitioners, but to facilitate the structural changes needed to prevent future violations. In several cases, most notably Barrios Altos, the Inter-American Court of Human Rights concluded that amnesty laws for serious human rights violations committed during the military dictatorships were incompatible with the Inter-American Convention on Human Rights. In 2005, the Supreme Court of Justice of Argentina cited these Court decisions as a legal precedent for declaring unconstitutional the amnesty laws approved in the mid-1980s that had ended the prosecution of military officers that committed crimes against humanity. Following this decision, cases against people accused of serious human rights violations during the dictatorship were opened for the first time in Argentina. Similarly, in Peru, the Attorney General issued a resolution requiring all prosecutors who had participated in the amnesty processes to request that their respective courts comply with the sentence by the Court. These decisions are probably the most important in the Inter-American system. By eliminating impunity for violations that cost tens of thousands of lives, they strengthened the rule of law across the region.
THE FIRST CASE: VELÁSQUEZ
The States parties to the American Convention on Human Rights “undertake to respect the rights and freedoms recognized [therein] and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination” on certain cited grounds (art. 1). These undertakings have been interpreted by the Inter-American Court of Human Rights in particular in its first case, Velásquez, which concerned the disappearance and likely death of Mr. Angel Manfredo Velásquez Rodríguez, a student at the National Autonomous University of Honduras. The ruling marked the beginning of the Court’s jurisdictional activity, and also greatly contributed to the development of international law on human rights. It established the jurisprudential basis for interpreting the obligation to respect and guarantee human rights, set forth in Article 1 of the Inter-American Human Rights Convention and conceptualized the forced disappearance of people as a crime involving multiple violations of the most fundamental rights established in the Convention. This case has been cited by the African Court on Human and Peoples’ Rights in the cases of Rev. Christopher R. Mtikila v Tanzania, Kennedy Owino Onyachi and Charles John Mwanini Njoka v Tanzania, and Actions Pour la Protection des Droits de l’Homme(APDH) v Côte d’Ivoire.
In the view of the Inter-American Court the obligation to respect the rights and freedoms recognized in the Convention implies that “the exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State” [Velásquez, para. 165]. The obligation to “ensure … the free and full exercise of those rights and freedoms” thus “implies the duty of the 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” [Velásquez, para. 166].
The Court added, however, that “the obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation — it also requires the Government to conduct itself so as to effectively ensure the free and full exercise of human rights” [Velásquez, para. 167].
As to the issue of prevention, the Court specified that “the State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation” [Velásquez, para. 174]. This legal duty to prevent human rights violations would moreover include “all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages” [Velásquez, para. 175]. As defined by the Inter-American Court of Human Rights, the legal duty of the States parties to the Convention to “respect” and to “ensure” is multi-faceted and goes to the very heart of the entire State structure, including the particular conduct of the Governments themselves.
INDIGENOUS PEOPLES’ RIGHTS
In the case African Commission on Human and Peoples’ Rights v Kenya, the African Court of Human and Peoples’ Rights cites several of the cases that the Inter-American Court of Human Rights has adjudicated on the matter of indigenous people’s rights.
The inter-American system of human rights has evolved from a vision of the affairs of indigenous peoples with a protectionist orientation, towards a perspective that seeks the effectiveness of the protection of the rights of indigenous peoples based on equality and non-discrimination.
The first approach of the Inter-American Commission on Human Rights was to consider indigenous peoples as a human group that had to be “protected.” In a second approach, the IACHR states that the notion of minorities developed within the scope of the United Nations was applicable to indigenous peoples and, therefore, the mechanisms established in international human rights law for these groups should be used. The third stage, in force until now, arises with the Commission’s Report on “The situation of Indigenous Peoples in the Americas”, and is based on the principle of equality and non-discrimination in the enjoyment and exercise of the rights that places indigenous peoples as holders of general rights based on their exclusion situation and the cultural peculiarities of which they are holders.
Based on this approach, the jurisprudence of the Inter-American Court of Human Rights in indigenous matters is based, in particular, on the sentences handed down in the Mayagna (Sumo) Awas Tigni Community case, and evolved further with the issuance of the judgment in the case of the Kaliña and Lokono Peoples.
To resolve contentious cases, the Inter-American Court of Human Rights has incorporated the standards developed in ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries to interpret the rights recognized in the American Convention on Human Rights. This was done in the case of Comunidad Mayagna (Sumo) Awas Tigni, in which the Inter-American Court of Human Rights recognized that understanding property rights in the traditional sense, did not consider the cultural peculiarities of exercising that right in the case of indigenous peoples. Therefore, through an evolutionary interpretation, considering the current state of the subject in domestic legislation and, according to the object and purpose of the treaties, the Inter-American Court of Human Rights understood this right in its collective dimension, enshrining the importance of the indigenous custom. In addition, in the case of Yakye Axa, the Court complemented this interpretation, using the content and scope of the right to property in ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries:
“In analyzing the content and scope of Article 21 of the Convention in the present case, the Court will take into account, in the light of the general rules of interpretation established in Article 29 thereof and as it has done previously, the significance special of communal ownership of ancestral lands for indigenous peoples, including to preserve their cultural identity and transmit it to future generations, as well as the steps taken by the State to fully realize this right (…)
In the present case, when analyzing the scope of the aforementioned Article 21 of the Convention, the Court considers it useful and appropriate to use other international treaties other than the American Convention, such as ILO Convention No. 169, to interpret its provisions of agreement. to the evolution of the inter-American system, considering the development experienced in this matter in International Human Rights Law. ” [para’s 124 and 127]
The Inter-American Court of Human Rights reiterated this doctrine in the Saramaka and Sawhoyamaxa Indigenous Community cases.
In the case of the Kichwa Indigenous People of Sarayaku, the Inter-American Court of Human Rights analyzed the right to cultural identity in light of ILO Convention 169, highlighting the importance of this right for the enjoyment and exercise of the rights of indigenous peoples.
Additionally, the Convention has also been used as a tool to complement the obligations of the State and fill gaps or gaps in the catalogs of rights. For example, when analyzing cases where rights with a high performance content are compromised, it ruled that the situation of special vulnerability in which indigenous peoples find themselves requires that special measures be taken by States. In this sense, the general obligations of the State are read in the light of the international corpus iure for the protection of the rights of indigenous peoples:
“In the present case, the Court must establish whether the State generated conditions that exacerbated the difficulties of accessing a dignified life of the members of the Yakye Axa Community and if, in that context, it adopted the appropriate positive measures to satisfy that obligation, that take into account the situation of special vulnerability to which they were taken, affecting their different way of life (systems of understanding of the world different from those of Western culture, which includes the close relationship they have with the land) and their project of life, in its individual and collective dimension, in the light of the existing international corpus juris on the special protection required by members of indigenous communities, in the light of what is stated in article 4 of the Convention, in relation to general duty of guarantee contained in article 1.1 and with the duty of progressive development contained in article 26 thereof, and of articles 10 (Right to Health); 11 (Right to a Healthy Environment); 12 (Right to Food); 13 (Right to Education) and 14 (Right to the Benefits of Culture) of the Additional Protocol to the American Convention on Economic, Social and Cultural Rights, and the relevant provisions of ILO Convention No. 169.” [Yakye Axa, para. 163]
Additionally, ILO Convention 169 has been used to incorporate additional obligations to those contained in the American Convention on Human Rights, such as in the case of the right to consultation and participation.
FUTURE OUTLOOK
Other instances where the African Court of Human and Peoples’ Rights has sought the guidance of the Inter-American Court of Human Rights deal with issues of freedom of expression, but many more can be explored.