The rise of the inter-American human rights regime: No longer a unicorn, not yet an ox

Human Rights Quarterly

Volumn 19, Issue 3, 1997, Pages 510-546

  Farer, Tom ^a,b  

^a UNIVERSITY OF DENVER   (United States)

^b Inter Amer Commn on Human Rights   (United States)

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EID: 9644303361     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1997.0025     Document Type: Article

References (84)

1. See CECILIA MEDINA QUIROGA, THE BATTLE OF HUMAN RIGHTS: GROSS, SYSTEMATIC VIOLATIONS AND THE INTER-AMERICAN SYSTEM 78 (1988). Resolution XXII of the Second Special Inter-American Conference resolves [t]o authorize the Commission to examine communications submitted to it and any other available information, so that it may address to the government of any American State a request for information deemed pertinent by the Commission, and so that it may make recommendations, when it deems appropriate, with the objective of bringing about more effective observance of fundamental human rights. Id.
2. See, e.g., Report on the Situation of Human Rights in the Republic of Bolivia, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 21, rev. 2 (1981) at 12-17; Report on the Situation of Human Rights in the Republic of Colombia, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 22 (1981) at 26-30; Report on the Situation of Human Rights in the Republic of Guatemala, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 6 (1981) at 12-14 (discussing constitutional provisions for human rights contained in various Inter-American Commission on Human Rights [IACHR] country reports).
3. See, e.g., Report on the Situation of Human Rights in the Republic of Bolivia, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 21, rev. 2 (1981) at 12-17; Report on the Situation of Human Rights in the Republic of Colombia, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 22 (1981) at 26-30; Report on the Situation of Human Rights in the Republic of Guatemala, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 6 (1981) at 12-14 (discussing constitutional provisions for human rights contained in various Inter-American Commission on Human Rights [IACHR] country reports).
4. See, e.g., Report on the Situation of Human Rights in the Republic of Bolivia, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 21, rev. 2 (1981) at 12-17; Report on the Situation of Human Rights in the Republic of Colombia, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 22 (1981) at 26-30; Report on the Situation of Human Rights in the Republic of Guatemala, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 6 (1981) at 12-14 (discussing constitutional provisions for human rights contained in various Inter-American Commission on Human Rights [IACHR] country reports).
5. For example, the Chilean government, after the 1973 coup, declared a state of emergency that continued throughout the 1970s and into the 1980s. Even as the Pinochet regime approached the 1988 plebiscite, two states of emergency were still in effect. Other examples of prolonged or recurrent states of emergency are Paraguay, Guatemala, and Uruguay, to name only a few. See JOAN FITZPATRICK, HUMAN RIGHTS IN CRISIS: THE INTERNATIONAL SYSTEM FOR PROTECTING RIGHTS DURING STATES OF EMERGENCY (Procedural Aspects of International Law Series No. 19, 1994) (discussing further states of emergency and international human rights law).
6. See, e.g., INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, TEN YEARS OF ACTIVITIES: 1971-1981, at 252-56, 274-76, 288-92, 336-38 (1982) (summarizing the Commission's assessments of judicial passivity or complaisance in Argentina, Chile, and El Salvador) [hereinafter TEN YEARS OF ACTIVITIES]. The Commission itself eschewed appraisal of the original factual basis for a government's claim of right to suspend constitutional guarantees. Commission restraint had several bases. One was the deference to the judgment of public officials that is virtually instinct in intergovernmental organizations. Another was the desire to avoid wrangles over generally close questions of mixed fact and law when so much that many governments were doing was indisputably illegal. This was, after all, a turbulent period in Latin America; there were subversive movements with varying degrees of external support. Although some Commission members might believe that the government's own policies - its acts and its omissions - sometimes fueled violent opposition, this was a difficult matter to prove. Moreover, some jurists and probably some members, if pressed, would have argued that whatever the cause of domestic violence - even if it were largely in response to the government's indifference to human misery, its corruption, the cruelty of its security forces, and its failure to maintain democratic order-governments still had a right to suppress armed challenges to its authority (by means otherwise consistent with human rights norms). So the Commission, in addition to focusing primarily on the government's clandestine violation of nonderogable rights, would criticize unreasonable prolongation of emergency measures or excess in their application.
7. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953).
8. See MEDINA QUIROGA, supra note 1, at 68. Paragraph Il of Resolution VIII, which created the Inter-American Commission, was approved with fifteen votes in favor, four against, and two abstentions; see also Resolution VIII, OAS Fifth Meeting of Consultation of Ministers of Foreign Affairs, Final Act, O.A.S. Off. Rec. OEA/Ser.C/II.5 (1960) [hereinafter Resolution VIII].
9. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), 3 U.N. GAOR (Resolutions, part 1) at 71, U.N. Doc. A/810 at 71 (1948), reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949).
10. American Declaration on the Rights and Duties of Man, signed 2 May 1948, O.A.S. Off. Rec. OEA/Ser.L/V/II.23, doc. 21, rev. 6 (English 1979) [hereinafter American Declaration].
11. See Resolution VIII, supra note 6, at 10-11.
12. CHARTER OF THE ORGANIZATION OF AMERICAN STATES, signed 30 Apr. 1948, 2 U.S.T. 2394, T.I.A.S. No. 2361 (entered into force 13 Dec. 1951), reprinted in 33 I.L.M. 981 (1994); Protocol of Amendment to the Charter of the Organization of American States ("Protocol of Buenos Aires"), signed 27 Feb. 1967, 21 U.S.T. 607, T.I.A.S. No. 6847 (entered into force 27 Feb. 1970) (entered into force for U.S. 27 Feb. 1970) [hereinafter Protocol of Buenos Aires).
13. CHARTER OF THE ORGANIZATION OF AMERICAN STATES, signed 30 Apr. 1948, 2 U.S.T. 2394, T.I.A.S. No. 2361 (entered into force 13 Dec. 1951), reprinted in 33 I.L.M. 981 (1994); Protocol of Amendment to the Charter of the Organization of American States ("Protocol of Buenos Aires"), signed 27 Feb. 1967, 21 U.S.T. 607, T.I.A.S. No. 6847 (entered into force 27 Feb. 1970) (entered into force for U.S. 27 Feb. 1970) [hereinafter Protocol of Buenos Aires).
14. Protocol of Buenos Aires, supra note 10, art. 51; see Thomas Buergenthal, The Revised OAS Charter and the Protection of Human Rights, 69 AM. J. INT'L L. 828, 828-36 (1975) (discussing the Protocol and its effect on the status and function of the Commission); see a/so MEDINA QUIROGA, supra note 1, at 87-89.
15. The Commission does not require the complainant to demonstrate a familial or other close connection to the alleged victim and it characterizes complaints brought by nongovernmental organizations, such as Amnesty International or Human Rights Watch, as "individual." Indeed, a considerable proportion of the Commission's cases, certainly some of its leading ones, have an organizational provenance. Whether brought by an individual in the literal sense or by an organization, a single case may concern a number of victims, even entire communities - as in complaints alleging grave mistreatment of a named indigenous people.
16. Coincident with the establishment of the OAS, the member states entered into a mutual security agreement, the Rio Treaty, which committed them to concert their responses to any threat to the peace and security of the hemisphere. Decision making procedures in the Rio Treaty were entwined with those of the OAS. The Treaty defined the military just as the Charter defined the political dimensions of the regional anti-communist association of the United States with the states of Latin America. The Treaty-Charter relationship ceased to be integral when the Anglophonic states of the Caribbean joined the OAS but did not become parties to the Treaty.
17. See LARS SCHOULTZ, HUMAN RIGHTS AND UNITED STATES POLICY TOWARD LATIN AMERICA 3 (1981); see also DAVID P. FORSYTHE, THE POLITICS OF INTERNATIONAL LAW: US FOREIGN POLICY RECONSIDERED (1990).
18. See LARS SCHOULTZ, HUMAN RIGHTS AND UNITED STATES POLICY TOWARD LATIN AMERICA 3 (1981); see also DAVID P. FORSYTHE, THE POLITICS OF INTERNATIONAL LAW: US FOREIGN POLICY RECONSIDERED (1990).
19. See generally HUMAN RIGHTS WATCH & ACLU, HUMAN RIGHTS VIOLATIONS IN THE UNITED STATES: A REPORT ON U.S. COMPLIANCE WITH THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1993); HUMAN RIGHTS WATCH/ASIA, PRISON CONDITIONS IN JAPAN (1995). Increasingly elaborate conceptions of what constitutes human rights, particularly the growing demands for the recognition of group rights coincident with the growth in the West of a culture receptive to claims of victimization, have made all states progressively more vulnerable to charges that they are human rights delinquents.
20. See generally HUMAN RIGHTS WATCH & ACLU, HUMAN RIGHTS VIOLATIONS IN THE UNITED STATES: A REPORT ON U.S. COMPLIANCE WITH THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1993); HUMAN RIGHTS WATCH/ASIA, PRISON CONDITIONS IN JAPAN (1995). Increasingly elaborate conceptions of what constitutes human rights, particularly the growing demands for the recognition of group rights coincident with the growth in the West of a culture receptive to claims of victimization, have made all states progressively more vulnerable to charges that they are human rights delinquents.
21. See 1981 Y.B. EUR. CONV. ON H.R. 32-33 (1983).
22. See Paul Wapner, Politics Beyond the State: Environmental Activism and World Civic Politics, 47 WORLD POL. 311 (1995).
23. See also EGON LARSEN, A FLAME IN BARBED WIRE: THE STORY OF AMNESTY INTERNATIONAL (1979).
24. Report on the Situation of Human Rights in El Salvador, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.45, doc. 23, rev. 1 (1978).
25. Id.
26. Id.
27. American Convention on Human Rights, opened for signature 22 Nov. 1969, O.A.S.T.S. No. 36, reprinted in 9 I.L.M. 673 (1970) (entered into force 18 July 1978) [hereinafter American Convention]; see also TEN YEARS OF ACTIVITIES, supra note 4, at 22-41.
28. American Convention on Human Rights, opened for signature 22 Nov. 1969, O.A.S.T.S. No. 36, reprinted in 9 I.L.M. 673 (1970) (entered into force 18 July 1978) [hereinafter American Convention]; see also TEN YEARS OF ACTIVITIES, supra note 4, at 22-41.
29. Resolution VIII, supra note 6.
30. See Protocol of Buenos Aires, supra note 10, art. 150 ("Until the Inter-American Convention on Human Rights, referred to in Chapter XVIII, enters into force, the present Inter-American Commission on Human Rights shall keep vigilance over the observance of human rights.").
31. Id. art. 112.
32. See, e.g., Buergenthal, supra note 11.
33. See "Other Treaties" Subject to the Advisory jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion No. OC-1/82 of 24 Sept. 1982, InterAm. Comm'n on Hum. Rts. (1982), at 16 ("The advisory jurisdiction of the Court can be exercised, in general, with regard to any provision dealing with the protection of human rights set forth in any international treaty applicable to the American States. . . ."). But the Inter-American Court clearly saw these provisions as supplementing Hemispheric human rights norms.
34. Protocol of Buenos Aires, supra note 10.
35. Statute of the Inter-American Commission on Human Rights, G.A. Res. 447, O.A.S.G.A., 9th Sess., O.A.S. Doc. AG/447 (1979).
36. Fictional paradigm petition, composed by the author on the basis of actual petitions received.
37. See Tom J. Farer, The United States and the Inter-American System: Are there Functions for the Forms?, in AM. Soc. INT'L L. 71 (Studies in Transnational Legal Policy No. 17, 1978).
38. See generally POVERTY: A GLOBAL REVIEW: HANDBOOK ON INTERNATIONAL POVERTY RESEARCH (Else Oyen et al. eds., 1996) (detailing global poverty); GUNNAR MYRDAL, ASIAN DRAMA: AN INQUIRY INTO THE POVERTY OF NATIONS (1971).
39. See generally POVERTY: A GLOBAL REVIEW: HANDBOOK ON INTERNATIONAL POVERTY RESEARCH (Else Oyen et al. eds., 1996) (detailing global poverty); GUNNAR MYRDAL, ASIAN DRAMA: AN INQUIRY INTO THE POVERTY OF NATIONS (1971).
40. See PAUL E. SIGMUND, THE OVERTHROW OF ALLENDE AND THE POLITICS OF CHILE 1964-1976 (1977); CHILE'S DAYS or TERROR: EYEWITNESS ACCOUNTS OF THE MILITARY COUP (Judy White ed., 1974) (detailing the Chilean coup and its aftermath); see also Report on the Status of Human Rights in Chile, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.34, doc. 21, corr. 1 (1974); Second Report on the Situation of Human Rights in Chile, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.37, doc. 19, corr. 1 (1976).
41. See PAUL E. SIGMUND, THE OVERTHROW OF ALLENDE AND THE POLITICS OF CHILE 1964-1976 (1977); CHILE'S DAYS or TERROR: EYEWITNESS ACCOUNTS OF THE MILITARY COUP (Judy White ed., 1974) (detailing the Chilean coup and its aftermath); see also Report on the Status of Human Rights in Chile, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.34, doc. 21, corr. 1 (1974); Second Report on the Situation of Human Rights in Chile, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.37, doc. 19, corr. 1 (1976).
42. See PAUL E. SIGMUND, THE OVERTHROW OF ALLENDE AND THE POLITICS OF CHILE 1964-1976 (1977); CHILE'S DAYS or TERROR: EYEWITNESS ACCOUNTS OF THE MILITARY COUP (Judy White ed., 1974) (detailing the Chilean coup and its aftermath); see also Report on the Status of Human Rights in Chile, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.34, doc. 21, corr. 1 (1974); Second Report on the Situation of Human Rights in Chile, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.37, doc. 19, corr. 1 (1976).
43. See PAUL E. SIGMUND, THE OVERTHROW OF ALLENDE AND THE POLITICS OF CHILE 1964-1976 (1977); CHILE'S DAYS or TERROR: EYEWITNESS ACCOUNTS OF THE MILITARY COUP (Judy White ed., 1974) (detailing the Chilean coup and its aftermath); see also Report on the Status of Human Rights in Chile, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.34, doc. 21, corr. 1 (1974); Second Report on the Situation of Human Rights in Chile, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.37, doc. 19, corr. 1 (1976).
44. See, e.g., GUILLERMO A. O'DONNELL, MODERNIZATION AND BUREAUCRATIC-AUTHORITARIANISM: STUDIES IN SOUTH AMERICAN POLITICS (1973).
45. See PHYLLIS R. PARKER, BRAZIL AND THE QUIET INTERVENTION, 1 964 (1979) (discussing the role of the United States in the 1964 Brazilian coup); see also SCHOULTZ, supra note 14, at 168-77.
46. See Larry Diamond, Democracy in Latin America: Degrees, Illusions, and Directions for Consolidation, in BEYOND SOVEREIGNTY: COLLECTIVELY DEFENDING DEMOCRACY IN THE AMERICAS 52, 80 (Tom Farer ed., 1996).
47. Which, of course, Fidel Castro was actively promoting: Cuba being an insufferably small stage for the exercise of his swollen ego.
48. See generally ALISTAIR HORNE, A SAVAGE WAR OF PEACE: ALGERIA 1954-1962 (1977).
49. See Report on the Situation of Human Rights in Uruguay, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.43, doc. 19, corr. 1 (1978); see also LAWRENCE WESCHLER, A MIRACLE, A UNIVERSE: SETTLING ACCOUNTS WITH TORTURERS (1990).
50. See Report on the Situation of Human Rights in Uruguay, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.43, doc. 19, corr. 1 (1978); see also LAWRENCE WESCHLER, A MIRACLE, A UNIVERSE: SETTLING ACCOUNTS WITH TORTURERS (1990).
51. See TEN YEARS OF ACTIVITIES, supra note 4, at 82.
52. See TOM ZWART, THE ADMISSIBILITY OF HUMAN RIGHTS PETITIONS: THE CASE LAW OF THE EUROPEAN COMMISSION OF HUMAN RIGHTS AND THE HUMAN RIGHTS COMMITTEE (1994) (stating that almost 90 percent of all registered petitions are found inadmissible by the Commission).
53. See Rudolf Bernhardt, The Convention and Domestic Law, in THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 25-40 (R. St. J. Macdonald et al. eds., 1993). "Embedded" because the constitutions of most continental states explicitly declared international agreements to be a part of domestic law. For example, Austria holds international treaties and agreements as equal to the Constitution. Other countries of Europe, such as France, hold international treaties as superior to statutory law, while many others hold them equal to statutory law but give preference to international law when it conflicts with domestic law. "Mirrored" in that, the Conventions' provisions were much the same as the guarantees of individual liberty enumerated in the various national constitutions.
54. To be sure, the issue did not frequently arise, because, as I indicated earlier, the sorts of persons likely to file a complaint with the Commission were equally likely to have sought judicial relief in national courts; however slim the prospect of success.
55. See HANDBOOK OF EXISTING RULES PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM, InterAm. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.65, doc. 6 (1985), art. 34.6, at 128 [hereinafter HANDBOOK OF RULES].
56. See TEN YEARS OF ACTIVITIES, supra note 4, at 161-63. In one Uruguayan case where death by torture was alleged, the government conceded that a young woman had died in detention, but insisted that it was a simple case of suicide by hanging. The Commission noted that under Uruguayan law, when a person died in detention, the state had to perform an autopsy. So it requested a copy of the autopsy report, to which the government responded that the report was classified and hence could not be made available.
57. Under the atrocious conditions of the time, the threat did not in fact prove very effective. 47. See Regulations of the Inter-American Comm'n on Hum. Rts., arts. 54-55, reprinted in HANDBOOK OF RULES, supra note 44, at 115, 135.
58. Although the assurances were dutifully if sometimes grudgingly issued, the Commission always warned persons offering information or filing complaints that it could not guarantee their safety.
59. Report on the Situation of Human Rights in Panama, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.44, doc. 38, rev. 1 (1978).
60. American Declaration, supra note 8, art. 20.
61. "Probably it is a violation of human rights," Torrijos conceded to the Commission. "But which would you prefer," he inquired with a smile, "an extended stay in Miami or in the prison you visited yesterday?" He was referring to the Carcelo Modelo, a relic of some forgotten era of liberal penological reform with eight to a cell and beds for four, so people alternated in a kind of time-share arrangement.
62. See TEN YEARS OF ACTIVITIES, supra note 4, at 272 (reporting that, following discussions with the Commission, the Panamanian Government rescinded the decrees in question).
63. TEN YEARS OF ACTIVITIES, supra note 4, at 277.
64. See Protocol of Buenos Aires, supra note 10, arts. 59-63.
65. TEN YEARS OF ACTIVITIES, supra note 4, at 277-78.
66. Id. at 278.
67. See SCHOULTZ, supra note 14, at 104 (explaining the attitude of the Carter Administration); see also ROBERT A. PASTOR, WHIRLPOOL: U.S. FOREIGN POLICY TOWARD LATIN AMERICA AND THE CARIBBEAN 53-54 (1992).
68. See SCHOULTZ, supra note 14, at 344-45. 59. TEN YEARS OF ACTIVITIES, supra note 4, at 278.
69. Communicated in a private conversation with an official of the coalition that briefly governed after the coup.
70. Compare Report on the Situation of Human Rights in Nicaragua, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 25 (1981), with AMERICAS WATCH, HUMAN RIGHTS IN NICARAGUA: 1986 (1987).
71. Compare Report on the Situation of Human Rights in Nicaragua, Inter-Am. Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.53, doc. 25 (1981), with AMERICAS WATCH, HUMAN RIGHTS IN NICARAGUA: 1986 (1987).
72. See The Situation in Grenada, G.A. Res. 38/7, U.N. GAOR, 38th Sess., Supp. No. 47, at 19, U.N. Doc. A/38/47 (1983) (declaring the "armed intervention in Grenada . . . a flagrant violation of international law").
73. See generally, JEANE J. KIRKPATRICK, THE REAGAN DOCTRINE AND U.S. FOREIGN POLICY (1985); Tom Farer, Reagan's Latin America, NY REVIEW OF BOOKS, 19 Mar. 1981.
74. See generally, JEANE J. KIRKPATRICK, THE REAGAN DOCTRINE AND U.S. FOREIGN POLICY (1985); Tom Farer, Reagan's Latin America, NY REVIEW OF BOOKS, 19 Mar. 1981.
75. Now Human Rights Watch/Americas.
76. Although Commission Reports during the heroic period were almost invariably adopted in the end by unanimity, they were often the product of difficult negotiations among members, some of whom were subject to influence by their own or other governments and who had quite varied views about the quantity and quality of evidence required to overcome what some implicitly saw as a strong presumption in favor of the government's version of events.
77. See Diamond, supra note 36, at 53.
78. See American Convention, supra note 22, art. 62(1).
79. American Declaration, supra note 8, arts. 11-16.
80. American Convention, supra note 22, art. 26.
81. See TEN YEARS OF ACTIVITIES, supra note 4, at 321-23.
82. See WESCHLER, supra note 39; see also AMERICAS WATCH, CHALLENGING IMPUNITY: THE LEV DE CADUCIDAD AND THE REFERENDUM CAMPAIGN IN URUGUAY (1989).
83. See Annual Report of the IACHR, 1992-1993, O.A.S. Doc. OEA/Ser.L/V/II.83, doc. 14, corr. 1 (1993), at 41.
84. American Convention, supra note 22, art. 23; see also American Declaration, supra note 8, art. 20.