The Organisation of American States is a regional inter-governmental organisation as defined by Article 52 of the UN Charter. The OAS Charter was adopted at the Ninth International Conference of American States in 1948 and entered into force in 1951. It has been amended several times. The 1967 Protocol of Buenos Aires changed the structure of the organisation in several aspects and elevated the status of the Inter-American Commission on Human Rights to that of a ‘principal organ’ of the OAS.
Various provisions of the OAS Charter refer to human rights but only in vague terms. Article 3 (j) of the 1948 Charter referred to the ‘fundamental rights of the individual’ among the principles which the Charter promotes. While the Charter does not list or define the human rights it refers to, the Inter-American Court has ruled that ‘[t]hese rights are none other than those enunciated and defined in the American Declaration’ (Advisory Opinion No. 10, OC-10/89, 14 July 1989, para. 41).
A. Principle organs and human rights bodies
Various organs of the OAS have a degree of responsibility regarding human rights:
1. The General Assembly
The General Assembly is the supreme organ of the OAS (Article 54 OAS Charter). It meets once a year in a regular session in a place selected in accordance with the principle of rotation. Among other functions, the General Assembly shall ‘decide the general action and policy of the Organisation’. The 35 member states of the OAS have the right to be represented in the General Assembly.
The General Assembly elects the members of the Inter-American Commission on Human Rights and approves the budget and the annual reports of both institutions. The judges of the Inter- American Court of Human Rights are elected by the states parties to the American Convention on Human Rights, and not by the General Assembly.
2. The Permanent Council
The Permanent Council is composed of one representative of each member state of the OAS, especially appointed by the respective Government, with the rank of Ambassador (Article 80 OAS Charter). Since 1985, the Permanent Council has assumed the role of reviewing the annual reports of the Commission and the Court before their submission to the General Assembly. When discussing the Court’s Annual Report, the General Assembly may consider only the resolutions approved by the Permanent Council. Therefore if this organ decides against considering or commenting on the recommendations made by the Court, the General Assembly is unable to act on the recommendations.
3. The Meetings of Consultation of Ministers of Foreign Affairs
These are ad hoc meetings held at the request of any government whenever problems of an ‘urgent nature and of common interest’ to the member states arises (Article 61 OAS Charter). The first such meeting was convened in 1939 in Panama City, Panama following the outbreak of hostilities in Europe and the most recent was held in 2008 in Washington, D.C. to address concerns of common defence and the maintenance of peace and security in the hemisphere.
4. The General Secretariat
The General Secretariat is the central and permanent organ of the OAS, with its seat in Washington, D.C. (Articles 107 and 121 OAS Charter). It performs the functions assigned to it in the Charter (Articles 112 and 113), in other inter-American treaties and agreements and those entrusted by the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs or the Councils. The Secretariat is headed by the Secretary General, elected by the General Assembly for a five-year term (Article 108). The Secretary General may participate in all meetings of the OAS, with voice but without vote (Article 110).
5. The Inter-American Commission on Human Rights
Since its creation in 1959 by the Fifth Meeting of Consultation of Ministers of Foreign Affairs, the Inter-American Commission on Human Rights has evolved into a unique organ within the Inter-American system. The Protocol of Buenos Aires transformed the Commission into a formal organ of the OAS and prescribed that the Commission’s principal function should be ‘to promote the observance and protection of human rights’ (Articles 52 and 106 OAS Charter).
The Commission is characterised by a unique ‘dual role’, which reflects its origin as a Charterbased body and later transformation into a treaty body when the American Convention came into force. As an OAS Charter organ the Commission performs functions in relation to all member states of the OAS (Article 41 ACHR) and as a Convention organ its functions are applicable only to states parties to the American Convention on Human Rights (ACHR).
The Commission is composed of seven members ‘elected in a personal capacity’ (Article 36 ACHR) and meets for eight weeks a year (Article 15 Commission Regulations) in Washington D.C. It also carries out in loco visits.
The Commission’s function is to promote the observance and the defence of human rights. The Commission’s activities include the following:
It receives, examines and investigates individual complaints or petitions which allege violations of the rights guaranteed under the American Declaration or the American Convention.
It refers cases to the Inter-American Court of Human Rights under the American Convention and appears before the Court. Before the Court, the Commission, acting as guardian of the Convention and of the Inter-American system for the protection of human rights, presents its own case while the alleged victim has independent legal counsel presenting his/her case. ?It requests advisory opinions from the Court regarding questions of interpretation of the American Convention.
It monitors the general human rights situation in the member states. It carries out on-site visits to observe the general human rights situation in a country or to investigate specific situations.
It publishes special reports on the general human rights situation of member countries when it considers it appropriate.
It undertakes research and publishes documents, such as the study of both domestic and international authorities and precedents in the context of the Proposed Declaration on the Rights of Indigenous Peoples.
The supervisory procedures of the Commission are described below:
Individual petition procedure
Admissibility of communications
Article 44 of the Convention establishes that the individual petition procedure is automatic for all states parties (Article 20(b) of the Commission’s Statute provides the same with regard to the Declaration for other OAS member states). The petitions procedure is not limited to victims but is open to ‘any person or group of persons, or any non-governmental entity legally recognized in one or more member states of the Organization’. This is a major advantage given that the victims may not know or have access to the protection machinery. In practice, however, to ensure effective follow- up, there needs to be some link between the victim and the persons or organisation presenting the case.
Petitions may refer to a specific event, practice or even to widespread human rights abuses, encompassing numerous violations and victims. The petition must, however, refer to specific victims and provide a detailed description of the act or situation that gives rise to the complaint.
Like other international human rights bodies, the Commission and Court require that domestic remedies be exhausted in order for an individual petition to be admitted for consideration. Article 46(2) ACHR stipulates, however, that domestic remedies need not be exhausted when they are ineffective, when the victim has been denied access or prevented from exhausting them or there has been unwarranted delay in rendering a final judgement.
Although a petition must be filed within six months of the exhaustion of domestic remedies, an exception can be made where the state has interfered with the petitioner’s ability to file or where the complaint is lodged by a third party on the victim’s behalf. In these cases, the Commission may admit complaints filed a ‘reasonable’ time after exhaustion of domestic remedies.
Although the Convention does not explicitly grant the Commission the faculty to request interim measures, the wide powers conferred upon it by Article 41 have been interpreted in the Rules of Procedure, which establish that ‘in serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, adopt precautionary measures to prevent irreparable harm to persons’ (Article 25(1) Commission’s Rules of Procedure). Measures may be taken when three conditions are satisfied: the situation is urgent, the circumstances could lead to irreparable harm, and the facts appear to be true.
The possibility of a rapid response is assured by the power granted to the Chairman of the Commission who may act when the Commission is not in session. The Commission may act ex officio or at the request of a petitioner. It should be noted that as with other cases presented to the Commission, the petitioner need not necessarily be the victim or his representative but can also be, for example, an NGO with knowledge of the case. This is especially important in refugee cases as many potential victims of refoulement may live in remote rural areas.
Unlike the judicially enforceable, convention-based measures that may be exercised by the Court, the precautionary measures of the Commission are not binding but they do put the government in question ‘on notice’ and communicate the seriousness with which the Commission views the case.
When the state concerned is a party to the Convention, the Commission may also exercise the power bestowed on it by Article 63(2) which permits it to request that the Court adopt binding provisional measures in ‘cases of extreme gravity and urgency’.
Decision on the merits
Where a friendly settlement is not reached, Article 50 of the Convention establishes that the Commission is to draw up a report of its ‘conclusions’ and any ‘recommendations as it sees fit’. If, after three months, the matter has not been settled or referred to the Court by the Commission or the state concerned, Article 51 stipulates that the Commission must issue a second report stating its ‘opinion and conclusions’, making ‘pertinent recommendations’ where this is ‘appropriate’. In place of adopting and publishing a final report, the Commission may present a case to the Court.
On-site visits and country reports
In the face of gross, systematic violations of human rights carried out by undemocratic governments in the Americas during its formative years, the Commission developed the practice of doing factfinding through country visits and reporting on the human rights situation in selected OAS member states by means of country reports. This has proven to be one of the most effective mechanisms in the system. Country reports are often produced after a Commission in loco visit to the country or hearings on the situation in the state. The country reports are generally published separately from the Commission’s annual report but sometimes ‘mini-country reports’ are published in the annual report. Although the Convention does not specifically provide for the practice of country reports (Article 41 (c) merely refers to the preparation of those reports the Commission ‘considers advisable’), the Rules of Procedure do establish a legal basis for the practice and set out the procedural aspects for them, including the possibility for states to comment on draft reports.
The Commission carries out country visits and country reporting at its own discretion, generally when it believes violations to be widespread. The reports typically focus on the general human rights situation in a country but raise issues of specific concern.
The effectiveness of country visits is hard to measure as the impact appears to lie mainly in dissuading future violations. The visits also provide the Commission with information, and therefore credibility, for its country reports. Since country reports usually deal with large scale violations of human rights and are frequently cited by NGOs as authoritative descriptions of the human rights situation in a given country, governments may find them particularly embarrassing.
Since 2000, the Commission has issued special thematic reports on relevant topics, including the rights of indigenous peoples, terrorism, status of human rights defenders, access to justice for women victims of violence in the Americas and demobilisation in Colombia. In addition, the Commission has published the reports of special rapporteurs such as the Special Rapporteur for Freedom of Expression, the Special Rapporteur for the Rights of Women and the Special Rapporteur for Migrant Workers and Their Families.
The Annual Report
The Annual Report of the Commission includes a broad range of information, inter alia, information on individual cases, on-site visits, requests for precautionary measures and ‘mini-country reports’ as well reporting on the activities of the rapporteurships.
6. The Inter-American Court of Human Rights
The Court came into being in 1979 following the entry into force of the American Convention. The Court is the supreme judicial organ established by the American Convention and exercises both contentious and advisory jurisdiction. The Court is composed of seven judges elected for a term of six years who may be re-elected once. The Court is a part-time body, with its seat in San Jose, Costa Rica.
The Court’s advisory jurisdiction is unique in several ways. In addition to the Inter-American Commission and other authorised bodies of the OAS, all OAS member states have the right to request advisory opinions regardless of whether they are parties to the American Convention or whether they have recognised the Court’s jurisdiction over contentious matters. Furthermore, OAS member states may consult the Court regarding the interpretation not only of the Convention, but also of any other treaty pertaining to the protection of human rights in the Americas. They may also consult the Court on the compatibility of their domestic laws, bills and proposed legislative amendments with the American Convention or any other treaty concerning human rights (Article 64 ACHR).
The Court began functioning in 1979, but the first decision on merits was in 1987 in a case against Honduras, which originated in a petition received by the Commission on 7 October 1981.
States parties do not accept the contentious jurisdiction of the Court merely by becoming parties to the Convention. The acceptance of its jurisdiction is optional and requires a separate declaration or special agreement. A declaration of acceptance of the Court’s jurisdiction may be made at the time of ratification or adherence to the Convention or at any subsequent time (Article 62(1) ACHR).
Declarations may be unconditional, recognising the Court’s jurisdiction as binding ipso facto, without requiring special agreement. States can also accept the Court’s jurisdiction on the condition of reciprocity (inter-state cases), for a specified period or for specific cases. In addition, all states parties to the Convention may at any time, on an ad hoc basis, permit the Court by special agreement to adjudicate a specific dispute relating to the application of the Convention (Article 62(3) ACHR).
The jurisdiction of the Court comprises all cases concerning the interpretation and application of the provisions of the Convention that are submitted to it provided the parties to the dispute have accepted its jurisdiction.
Only states parties to the Convention and the Commission have the right to submit a case to the Court (Article 61(1) ACHR). Individuals cannot bring a case directly to the Court; they have to file a complaint with the Commission; the Court can only deal with individual complaints when they have been considered and referred to it by the Commission. States parties can bring cases directly to the Court. It should be noted also that, unlike the European Convention, the American Convention does not require that those filing complaints with the Commission be the victims of the alleged violations themselves; any ‘person or group of persons, or any non-governmental entity legally recognised in one or more member states’ may lodge petitions with the Commission.
The proceedings before the Court in contentious cases terminate with a judgement, which is final and not subject to appeal. The Court may be requested to interpret the meaning or scope of any judgement at the request of any party to the case (Article 67 ACHR and Article 46 Rules of Procedure).
While the decisions of the Court are only binding on the parties to the case, the Court’s interpretation of the rights contained in the Convention are authoritative and have a greater practical significance than their formal status would suggest.
If the Court finds that there has been a violation of the Convention, it shall rule that the injured party be ensured the enjoyment of the right or freedom that was violated and, if appropriate, rule that the consequences of the measures or situation that constitute the violation be remedied and award compensation. The Court has a distinctive reparations scheme that is not limited to monetary compensation but has also included ordering the state to locate mortal remains of a victim, to publish the court’s judgement in a national newspaper and acknowledge wrong-doing as well as to adopt national legislation that incorporates international human rights norms into the state’s legal system. When reparations are awarded, the Court has generally reserved for itself the faculty of supervising compliance with the judgement (see, e.g., Aloeboetoe v. Suriname and Maqueda v. Argentina).
States parties to the Convention undertake to comply with the Court’s judgement in any case to which they are parties. The part of the judgement that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgements against the state (Article 68 ACHR).
The Court reformed its rules of procedure significantly in 2009, inter alia, including provisions establishing the Court’s practice of holding hearings away from its seat and the recording of audio of the hearings and the deliberations. The appointments of the deputy state agent or agents were regulated and clarified as well as the procedure of provisional measures, replacement of witnesses and designation of expert witnesses. The Court extended deadlines for submitting briefs and set deadlines for the submission of the amici curiae. In order to improve the way the Court receives and processes evidence, the declarations of the alleged victims are no longer qualified as testimonial declarations and, therefore, are no longer needed to be given under oath. In this sense, the declarations of the alleged victims shall be assessed, within the context of the case, taking into account the special characteristics of such statements. In order to clarify its case-law, the Court deemed it fit to omit any reference to the next-of-kin of the alleged victims, as according to its legal opinion they shall, under certain circumstances, be considered as alleged victims and may be beneficiaries of the reparations as long as they have been identified as such in the Commission’s application. In this way, said next-of-kin shall be considered alleged victims and all provisions referring to victims shall be applicable. Finally, the Court established its practice of holding private hearings on the procedure to monitor compliance with its judgments and the possibility of commissioning the Secretariat to carry out the preliminary proceedings for taking evidence in those cases where it is impossible for the Court to proceed.
B. Standards and supervisory mechanisms
1. American Declaration of the Rights and Duties of Man
The same Diplomatic Conference that adopted the OAS Charter proclaimed the American Declaration of the Rights and Duties of Man (ADHR) (2 May 1948). Although it was adopted as a nonbinding instrument, its character has gradually changed. Nowadays it is deemed to be the authoritative interpretation of ‘the fundamental rights of the individual’, which Article 3 (j) of the OAS Charter proclaims as one of the principles of the Organisation. The Inter-American Court confirmed the legal force of the American Declaration in Advisory Opinion No. 10 on the 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 (see paras 43 and 45).
The Commission receives individual complaints alleging violations of the Declaration with respect to OAS member states that are not parties to the ACHR.
2. American Convention on Human Rights and its Protocols
The American Convention on Human Rights (1969)
The American Convention on Human Rights (ACHR) was adopted on 20 November 1969 and entered into force on 18 July 1978. As of March 2010, 25 states have adopted the Convention. The Convention confers competence with respect to matters relating to the fulfilment of its obligations to two organs: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The supervisory system provided by the Convention is legally binding only on the states parties to it.
Although the ACHR contains primarily civil and political rights, Article 26 expresses the general commitment of states parties to adopt measures with a view to the full realisation of economic, social and cultural rights (see textbox on ‘progressive realisation of economic, social and cultural rights’).
AMERICAN CONVENTION ON HUMAN RIGHTS
Chapter I: General Obligations: obligation to respect rights (Article 1) and domestic legal effects (Article 2).
Chapter II: Civil and political rights: right to juridical personality (Article 3); right to life (Article 4); right to humane treatment (Article 5); freedom from slavery (Article 6); right to personal liberty (Article 7); right to fair trial (Article 8); freedom from law (Article 9); right to compensation (Article 10); right to privacy (Article 11); freedom of conscience and religion (Article 12); freedom of thought and expression (Article 13); right to reply (Article 14); right to assembly (Article 15); freedom of association (Article 16); rights of the family (Article 17); right to a name (Article 18); rights of the child (Article 19); right to nationality (Article 20); right to property (Article 21); freedom of movement and residence (Article 22); right to participate in government (Article 23); right to equal protection (Article 24); and right to judicial protection (Article 25).
Chapter III: Economic, social and cultural rights (Article 26).
Chapter IV: suspension of guarantees, interpretation and application (Articles 27 to 31). Chapter V: personal responsibilities (Article 32).
Chapter VI: competent organs (Article 33).
Chapter VII: Inter-American Commission on Human Rights (Articles 34 to 51).
Chapter VIII: Inter-American Court of Human Rights (Articles 52 to 69).
Chapter IX: common provisions (Articles 70 to 73).
Chapter X and XI: general and transitory provisions (Articles 74 to 82).
The ACHR differs from the ICCPR, because it contains guarantees of the right to reply (Article 14) and to property (Article 21). In addition, it has a more elaborated and advanced text than the ECHR in regard to, for example, to right to participate in government (Article 23) and a guarantee of the right to equal protection (Article 24).
The Protocol of San Salvador in the Area of Economic, Social and Cultural Rights (1988)
The Protocol of San Salvador was adopted in 1998 to give effect to the provisions of Article 26 ACHR. It entered into force on 16 November 1999. As of March 2010, the Protocol had 14 parties.
The states parties to the Protocol undertake to adopt the necessary measures, both domestically and through international co-operation, especially economic and technical, for the purpose of achieving progressively and pursuant to their internal legislation the full observance of the rights recognised in the Protocol. Although the Protocol takes into account the states’ degrees of development and restrictions of available resources, progressive implementation is, nonetheless, an obligation.
The Protocol contains mostly the same rights as the ICESCR: the right to work (Article 6); the right to just, equitable and satisfactory conditions of work (Article 7); trade union rights (Article 8); the right to social security (Article 9); the right to health (Article 10); the right to education (Article 13); and the right to the benefits of culture (Article 14). However, the Protocol improves on the provisions of the ICESCR by giving recognition to a number of rights which are not included in the Covenant, such as the right to a healthy environment (Article 11); the right to the formation and the protection of the family (Article 15); the rights of children (Article 16); the protection of the elderly (Article 17); and the protection of the handicapped (Article 18).
The Protocol establishes the possibility to submit to the Inter-American Commission, through the individual petition mechanism, complaints alleging violations of the right to organise and to join unions and national federations of unions or international trade union organisations, protected under Article 8(1)(a), as well as violations of the right to education, protected under Article 13. The Court may examine these cases under its contentious jurisdiction (Article 19(6)).
The Protocol to Abolish the Death Penalty (1990)
This Protocol was adopted on 8 June 1990. As of March 2010, the Protocol had 11 parties. It expands upon Article 4 ACHR (right to life). No reservations may be made to the Protocol but, at the time of ratification or accession, the states parties may declare that they reserve the right to apply the death penalty in wartime in accordance with international law, for extremely serious crimes of a military nature. However, this exception must be provided for in domestic law and its application is subject to strict reporting conditions set out in the Protocol.
3. The Inter-American Convention to Prevent and Punish Torture (1985)
The Convention on Torture was adopted on 9 December 1985, entered into force on 28 February 1987. As of March 2010, the Convention had 17 parties. The Convention expands upon the provisions of Article 5 ACHR, which prohibits torture and cruel, inhuman or degrading punishment or treatment and can be invoked before the Inter-American Court to interpret the provisions of Article 5 ACHR. Furthermore, the Court has given itself jurisdiction to apply the Convention directly (see, for example, Villagrán Morales et al. v. Guatemala). The Convention excludes the defence of superior orders, as well as any state of emergency, any other kind of public emergency, the suspension of constitutional guarantees or political instability as justification for torture. States undertake to submit reports on ‘any legislative, judicial, administrative, or other measures’ they adopt in application of the Convention to the Inter-American Commission (Article 17).
4. The Inter-American Convention on the Forced Disappearance of Persons (1994)
Adopted on 9 June 1994, the Convention on the Forced Disappearance of Persons came into force on 28 March 1996. As of March 2010, 13 states had ratified the Convention. It addresses an issue that has plagued Latin America for decades. Violations of the Convention can be brought to the attention of the Inter-American Commission and follow the same process as petitions under the American Convention. Ratification is not limited to states parties to the American Convention, but is open to all member states of the OAS. The Convention includes a definition of ‘forced disappearances’ in its Article 2 (see III§3.A).
5. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) (1994)
This Convention was adopted at the same time as the Convention on the Forced Disappearance of Persons and came into force on 2 March 1995. As of March 2010, 32 states had ratified the Convention. It condemns any act or conduct ‘based on gender which causes death or psychological harm or suffering to women, whether in the public or the private sphere’.
The definition of violence under the Convention includes domestic violence in the widest sense; that is, within any inter-personal relationship and whether or not the perpetrator resides with the victim. It also includes violence occurring in the community, or perpetrated or condoned by the state or its agents, wherever it occurs. States parties have specific duties under the Convention to adopt the required legislative measures to prevent and punish all forms of violence against women. States report on measures they have adopted to prevent and prohibit violence against women in their national reports to the Inter-American Commission of Women, a specialised organisation of the OAS, which aims to promote and protect the rights of women in the Americas. If provisions of the Convention have allegedly been violated, any person, group of persons or legally recognised NGO can lodge petitions with the Inter-American Commission.
This Convention provides a good example of the trend towards the accountability of private actors in international law. It clearly spells out that ‘violence against women is an offence against human dignity and a manifestation of the historically unequal power relations between women and men’ and ‘shall be understood as any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere’ (Article 1, emphasis added). It is still, however, the state concerned that remains responsible, as the violations have to be ‘condoned by the state or its agents’.
6. The Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (1999)
Adopted on 7 June 1999, this Convention entered into force on 14 September 2001. As of March 2010, 17 states had ratified it. Its Preamble refers to a number of international conventions, declarations and resolutions aimed at the protection of persons with physical, mental or sensory impairment, ‘whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment’.
The Convention is in four parts: a) the objectives concerning the prevention and elimination of discrimination and the integration of persons with disabilities into society; b) the obligations of states parties; c) definitions of discrimination and disability; and d) implementation mechanisms.
States parties undertake to take all the necessary measures, including legislation, to promote the integration of persons with disabilities into society, ‘under conditions of equality’. Their obligations range from ensuring that buildings and vehicles be designed so as to allow access by persons with disabilities, to giving priority to the prevention, early detection and treatment. States parties also undertake to increase public awareness so as to eliminate stereotypes, prejudices, and discrimination in employment.
The Convention establishes a supervisory mechanism, the Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities, composed of one representative from each state party. The Committee is charged with reviewing state reports to be submitted every four years on ‘follow-up on the commitments’ undertaken in the Convention (see IV§9, disabled persons).
C. The case-law of the Inter-American Court of Human Rights compared to that of the European Court of Human Rights
The case-law of the Inter-American Court of Human Rights is not as extensive as that of the European Court of Human Rights and although the American Convention contains all of the traditional civil and political rights, the case-law in contentious cases has dwelt primarily upon a few of the most basic rights. These include the right to life (Article 4); the right to personal liberty (Article 7); the right to humane treatment (Article 5); the right to a fair trial (Article 8); the right to judicial protection (Article 25); and the right to equal protection before the law (Article 24).
Although cases regarding these rights still find their way onto the Court’s docket, the Court has slowly been widening its scope to deal with a broader range of issues, including the wrongful dismissal of judges and civil servants, film censorship, the withdrawal of citizenship and removal from positions of authority of government critics and the land rights of indigenous peoples. In addition, the Inter-American Commission invoked Article 26 of the American Convention before the Court, and the Court addressed the problem by implicitly admitting jurisdiction to apply Article 26 in its contentious cases (see Torres Benvenuto et al. (Five Pensioners case) v. Peru ).
The reasons for the limited case-law of the Inter-American system are manifold. One is that the Inter-American Court is a young institution, meeting for the first time in 1979. The first cases in which the Court decided that a state party had violated the Convention were in 1988 in the so-called Honduran Disappearance Cases (Velásquez Rodríguez v. Honduras and Godínez Cruz v. Honduras). The European Court began its work twenty years earlier.
Secondly, for various reasons relatively few contentious cases have been submitted to the Court. In the early years of the Court, only a few states had made optional declarations accepting its contentious jurisdiction. Furthermore, individuals do not have the right to submit an application directly to the Court (jus standi); they do, however, have standing before the Court since 2001 in the reparations phase and since 2004 at every stage of the proceedings. States are generally reluctant to present cases to the Court, but may elect to submit cases to the Commission (see, e.g., Nicaragua v. Costa Rica (declared inadmissible)). In the end, what is most determinative of the volume of the Court’s work is the extent to which the Inter-American Commission is prepared to submit cases. Under the latest amendments to the Rules of Procedure of the Commission, when the state has not complied with its recommendations within a given period, the Commission is required to submit the case to the Court, unless a qualified majority decides not to do so. Previously, the Commission had the discretion whether or not to submit a case, even in cases of non-compliance, and could submit a case only by a decision of a qualified majority. Under the new system, it is more likely that cases will be submitted to the Court.
Although most of the cases which the Inter-American organs of human rights have dealt with have involved gross violations of human rights, the political reality of the continent has changed from what it was at the system’s inception, and it can be anticipated that the jurisprudence will evolve to include other issues.
In relation to the above, it should be noted that while the case-law of the Inter-American Court is relatively limited in terms of the number of judgements and scope, the Court has nonetheless contributed significantly to the progress of international human rights with cases such as its landmark decision in Velásquez Rodriguez v.Honduras.