The Interamerican system

Just as with the European system, the Inter-American system, came into being within a regional intergovernmental organisation, the Organisation of American States (OAS). The setting up of a human rights protection mechanism began slowly in the 1950s. Since then, the American Declaration of the Rights and Obligations of Man had been adopted - which was the first international human rights instrument of a general nature and was to become an inevitable reference, despite its non binding character- just as the American Convention on Human Rights and other sector conventions. From an institutional point of view two bodies have been established: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Their role is to monitor the promotion and protection of Human Rights by different means, notably by examining complaints or petitions from individuals on specific Human Rights violations.  

The Commission exercises a dual function: on the one hand it is the Statutory Organ of the OAS for the promotion and defence of Human Rights, in particular those provided for in the Declaration, and, on the other hand, it is a permanent body overseeing the application of the Convention, providing that it has been ratified by the State concerned. The same is true for most of the other sectorial conventions mentioned. The result is two parallel, or rather cumulative, systems with oversight powers. The Commission may receive complaints from individuals in both circumstances.  

As for the Court, it is established by the Convention. It exercises adjudicatory and advisory jurisdiction over the rights guaranteed by the latter or over rights which have been ratified by other treaties on the same matter, if provided for by these treaties. In order for the Court to be able to rule on individual complaints it is not sufficient for the State in question to have ratified the Convention. In addition this State must have specifically accepted this competence in favour of the Court.  

Any person or group of persons has the right to file a complaint to the Commission concerning the non-respect of a right recognised by the Declaration or, if the State has ratified it, by the Convention. After a preliminary analysis of the complaint by the Secretariat, if it fulfils a priori the conditions of admissibility, the Commission transmits the complaint to the State and asks for its comments. These are in turn submitted to the plaintiff for any counter arguments he might wish to put forward. It is only at this point that the Commission decides definitively on the admissibility of the complaint.  

The Commission is obliged to place its good offices at the disposal of the parties so that they attempt to reach an agreement on an amicable basis. Normally, it is only after the decision on the admissibility that the Commission offers its services. If the negotiations fail to find a solution, then the examination of the merits of the case can begin.  

During this phase, the Commission offers to both the plaintiff and the State, in turn, the possibility to comment or disagree with the version of the opposing party. It has extensive powers at its disposal to gather pertinent information concerning the allegations, such as visiting the scene of the alleged crimes. In the end, the Commission reports in a brief its conclusions and recommendation on compensation. This report marks the end of the procedure for complaints as it pertains to the Declaration, as it does for those associated with the Convention if the Defendant State has not accepted the adjudicatory competence of the Court. If the State has accepted this competence, it then becomes possible for the case to go before the Inter-American Court. No matter what, it is only the Commission and the State party that can file a complaint before the Court, and never an individual. Up to the present, it has been, to all intents and purposes, the Commission which has deferred most of the cases which the Court has had to judge. The Commission has a wide margin of appreciation in deciding whether it is worthwhile or not to refer a case before the Court. Nevertheless, since 2001, the Commission has submitted to the Court all of the cases where the State has not enforced the measures recommended in its report.

The Court is not bound by the conclusions of the Commission, be it over the alleged facts or the legal considerations of the case. However, it does not review ex novo the detailed analysis of each case. On the contrary, for the most part it conforms to the indications provided by the Commission. With respect to admissibility, it is recognised that the Court can also revisit this question if it considers it to be needed, but this is rather theoretical. Throughout the whole proceedings before the Court, setting aside any participation in the debates, the Commission must cooperate with the Court in all steps of the process, from investigations to convening hearings and to the adoption of preventative measures, as well as in various other areas. In a sense it is as if it were the executive branch of the Court.  

The verdict of the Court is final and binding, as opposed to the reports of the Commission. As a quasi jurisdictional body, the opinions of the Commission are non-binding. However the principle of good faith requires that any State with a commitment to respect the rights enshrined in the Inter-American system, should not disregard the conclusions of this institution which is at the very centre of the system. The follow up on whether the final decisions have been implemented is the responsibility of the Commission. In carrying out this task, it can, among other things, request information on the issue in question from the State, or convene hearings.