The American Convention on Human Rights, also called the Pact of San José, Costa Rica, is an international treaty that contemplates the rights and liberties that must be respected by States Parties. In addition, the Conven t ion
establishes the Commission and Court as organs competent to hear issues regarding the compliance of agreements undertaken by States Parties to the Convention and regulates their operations.
The American Convention was adopted after the Inter-American Specialized Conference on Human Rights, on 22 November 1969, in the city of San José, Costa Rica, and entered into force on 18 July 1978, pursuant to Article 74(2) of
the Convention.
The States that have ratified the American Convention are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua,
Panama, Paraguay, Peru, Suriname, and Uruguay.
On 10 September 2012, Venezuela presented an instrument of denunciation of the American Convention on Human Rights to the Secretary-General of the Organization of American
States (OAS). The denunciation took effect on 10 September 2013.
On 26 May 1998, Trinidad and Tobago presented a denunciation before the Secretary- General of the OAS. The denunciation took effect on 28 May 1999.
Under Article 78(1) of the American Convention on Human Rights, “[t]he States Parties may denounce this Convention … by means of notice given one year in advance.” It is worth mentioning that, as established in
the second section of Article 78 of the Convention, the denouncements do not exempt States from their obligations under the American Convention regarding human rights violations that may occur between the date of denouncement and the
date the denouncement takes effect.
The American Convention first establishes the obligation of States to respect the rights and liberties recognized in the Convention, as well as the duty to adopt dispositions of internal law that might be necessary to effectuate the enjoyment
of such rights.
Second, the Convention establishes the following rights and liberties: the right to juridical personality; the right to life; the right to humane treatment; freedom from slavery; the right to personal liberty;
the right to a fair trial; freedom from ex post facto laws; the right to compensation; the right to privacy; freedom of conscience and religion; freedom of though and expression; the right of reply; the right of assembly; freedom of
association; rights of the family; the right to a name; rights of the child; the right to nationality; the right to property; freedom of movement and residence; the right to participate in government; the right to equal protection;
the right to judicial protection; and the progressive development of economic, social, and cultural rights.
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,” which was
adopted on 17 November 1988 and entered into forced on 16 November 1999. The second, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, was signed on 8 June 1990.
The American States, in the exercise of their sovereignty and 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. In addition, two organs were created through this System with the intention to safeguard those rights: The Inter-American Commission of Human Rights and the Inter-American Court of Human 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, such as the American Convention on
Human Rights; protocols and conventions on specialized themes, such as, among others, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and the Inter-Ame
rican Convention on the Prevention, Punishment and Eradication of Violence against Women; and the Rules of Procedure and Statutes of its organs.
The Inter-American System of Human Rights is comprised of the Inter-American Commission of Human Rights (IACHR) and the Inter-American Court of Human Rights (Inter-American Court).
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.
The Inter-American Court is one of three regional human rights tribunals, together with the European Court of Human Rights and the African Court of Human and Peoples’ Rights. It 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.
Twenty States have recognized the contentious jurisdiction of the Court, including as follows: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras,
Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay.
On 1 July 1978, the General Assembly of the OAS recommended approval of the formal offer of the Government of Costa Rica to establish the headquarters of the Court in that country.
This decision was then ratified by the
States Parties to the Convention during the Sixth Special Session of the OAS General Assembly, celebrated in November 1978. The ceremony of the Court’s installation occurred in San José on 3 September 1979.
The organization, procedure and function of the Court are regulated in the American Convention. In addition, the Court has a Statute approved by the States through the OAS General Assembly and a Regulation issued by the Court itself.
The Court is composed of seven Judges, nationals of the member States of the OAS. The current composition includes the following, in order of precedence: Judge Nancy Hernández López, President; Judge, Rodrigo Mudrovitsch,
Vice President; Judge Humberto Antonio Sierra Porto; Judge Eduardo Ferrer Mac-Gregor Poisot; Judge Ricardo C. Pérez Manrique; Judge Verónica Gómez; and Judge Patricia Pérez Goldberg.
The Secretariat is comprised of a Secretary and a Assistant Secretary, which provide legal and administrative support to the Court in its judicial work. The current Secretary is Pablo Saavedra Alessandri (Chile) a nd the Assistant
Secretary is Romina I. Sijniensky (Argentina).
During the 2020 fiscal exercise, the Court received a total income of US$7,161,880.51, of which 5,163,697.50 (72.10%) was provided by the OAS Regular Fund. 265 Meanwhile, US$1,483,766.88 (20.72%) came from international cooperation
projects, and US$514,416.13 (7.18%) corresponded to voluntary contributions from Member States.
The Program of Internships and Professional Visits at the Court offers students and professionals in the fields of law, international relations, political science, languages, and translation the opportunity to gain practical experience
in the Inter-American System.
This program aims to provide an understanding of the workings of the Inter-American System and relevant international instruments; share the activities of the Court; give selected participants
relevant and practical experience that may complement their academic and professional training, which could be later applied in different work contexts after the internship or professional visit; and promote the participation
of people of different nationalities and different legal systems.
The Secretary-General of the OAS requests States parties to the Convention to present a list of names of candidates to be Judges of the Court. Each State party may propose up to three candidates, nationals of the State that proposes
them or of any other Member State of the Organization. If a list of three candidates is proposed, at least one of the candidates must be a national of a State different than the proponent.
The Judges are chosen
on a personal basis by States parties, by secret ballot and by absolute majority, during the OAS General Assembly just before the end of term of the exiting Judges.
The Judges serve a term of six years and can be reelected once for the same period. However, even Judges with terms coming to a close continue to participate in the cases in which they were involved before the end of their term
and in cases that are in the sentence phase.
The Judges are at the disposition of the Court, and should move to its headquarters or to the place where it may hold its sessions, as often and for as long as needed.
Although there is no requirement that the J udges
live in the seat of the Court, the President should always be available to lend his or her services.
The Judges may not hear cases concerning their nationalities. However, in inter-state cases it is possible for the States to name an ad hoc judge of the nationality of the States involved in the case in question.
If one of the Judges called to hear a case is a national of one of the States that are parties to the case, another State party in the same case may designate a person to serve on the Court as anad hoc Judge.
In accordance with the American Convention, the Court mainly exercises three functions: (I) contentious, (II) the power to issue provisional measures, and (III) the advisory function.
Within this function, the Court determines if a State has incurred an international responsibility for violating a right enshrined in the American Convention or other relevant human rights treaties in the Inter-American System.
Similarly, the Court also supervises the compliance of sentences in this manner.
They are measures that the Court hands down in cases that are very serious, urgent, and when they may be necessary to avoid irreparable harm to people. These three requisites must be satisfied prima facie before these measures
can be awarded.
This function allows the Court to respond to questions posed by OAS Member States or organs of the OAS regarding: a) the compatibility of internal norms with the Convention, and b) the interpretation of the Convention or other
treaties concerning the protection of human rights in the American States.
When the Inter-American Court issues a judgment in which it declares the international responsibility of a State for the violation of one or more rights of the American Convention, the Court proceeds to order a series of measures
of reparation, which take into account both the needs of reparation of the victims of the case as well as those structural or normative aspects that caused the violation and need to be modified by the State to avoid the repetition
of the same type of violations. The Court therefore determined that monitoring compliance with judgments is one of the elements that make up its jurisdictional function. The foregoing, while compliance with the reparations
ordered by the Court in its decisions, is the materialization of justice for the specific case and, therefore, of jurisdiction. Therefore, the effectiveness of the judgments depends on their execution and, for this, the Court
itself supervises daily that the States are complying with the reparations ordered in their judgments through various forms (written process, hearings, visits and notes of the Secretariat of the Court). The supervision process
must tend to the materializa t ion of the protection of the right recognized in the Judgment through the suitable application of said judicial pronouncement.
Effective implementation of the decisions of the Court is key to the full validity and efficacy of the Inter-American System of Human Rights, without which its raison d’être would become illusory.
Therefore,
the Court has considered that effective compliance with its decisions is an integral part of the right to access to justice. In this sense, it is necessary to have effective mechanisms to execute the decisions of the Court.
Each year the Court holds as many Periods of Sessions as necessary to function efficiently. Usually, the Court holds at least seven Periods of Sessions per year, and these periods may be Ordinary Sessions (held at the seat of the
Court) or Special Sessions (held in a State that has invited the Court to sit in its territory). To know the dates of the Session of the Court click here.
During its Periods of Sessions, the Court carries out different activities, among which include hearings and resolutions about contentious cases, provisional measures, advisory opinions, monitoring compliance with judgments,
and the adoption of judgments, advisory opinions and orders. In a similar manner, the Court considers different procedures in the matters pending before it, and analyzes the different reports presented by the Inter-American
Commission, representatives of the presumed victims or the presumed victims themselves, and the States involved in matters in which provisional measures may have been adopted or in cases in the phase of monitoring compliance
with judgment. In addition, the Court also considers matters of an administrative nature.
The exercise of the functions of the Inter-American Court in its Periods of Sessions comprises of hearings, which are characterized
by important and dynamic participation of the parties involved in the given matters and cases. This participation is crucial in terms of the effectiveness of measures and obligations ordered by the Court and it acts as a measure
of the progress and duration of the trials.
Starting in 2005, the Inter-American Court has celebrated Periods of Special Sessions away from its seat in San José, Costa Rica. On such occasions, the Court has relocated to Argentina, Barbados, Bolivia, Brazil, Chile,
Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, and Uruguay. This initiative of the Court allows it to efficiently fulfill two objectives: On one hand, it has allowed
the Court to increase its jurisdictional activities, and on the other, it has allowed it to efficiently spread both its work in particular and that of the Inter-American System for the Protection of Human Rights in general.
In the framework of the contentious jurisdiction of the Court, the development of a judgment consists of various stages with both written and oral components. The second stage, which is essentially oral, is carried out in public
hearings on each case, which may last about a day and a half. In such hearings, the Commission presents the basis for the presentation of the case before the Court and any other matter that it may consider relevant in resolving
the case.
Next, the Judges of the Court hear experts, witnesses, and alleged victims summoned by resolution, who are questioned by the parties (only the Commission with respect to the experts) and, if such is the case, by
the Judges. Then, the President gives the floor to the alleged victims or their representatives, as well as to the defendant State, so that they can present their allegations in regards to the merits of the case. Afterward,
the President grants the presumed victims, their representatives, and the State, respectively, the possibility of an answer and a rejoinder. Upon conclusion of the allegations, the Commission presents its final observations,
after which the Judges pose their final questions to the parties.
In a hearing on provisional measures, the representatives of the beneficiaries and the Inter-American Commission have the opportunity to demonstrate, if such is the case, the continued prevalence of the situations that originally
required the adoption of provisional measures. Meanwhile, the State must present information on the measures adopted with the end goal of surpassing these situations of extreme seriousness, urgency, and irreparability of harm,
and, ideally, demonstrate that the facts no longer support such circumstances. In this kind of hearing, the applicants of the provisional measures start presenting their allegations in regards to the three above-mentioned conditions,
followed by the Inter-American Commission or representatives of the beneficiaries, if applicable, and ending with the State’s presentation of its corresponding observations. The representatives, Commission, and the State
all have the option to submit an answer and rejoinder. Finally, the Judges have the opportunity to question the participants of the hearing.
It is worth mentioning that in the context of these hearings, which can
be public or private, according to the specifications of the Court or its Presidency, the Court tends to have a more conciliatory character and, to that extent, it is not limited to taking note of the information presented
by the parties, but rather, under the principles that make it a human rights Court, among other measures, it suggests alternative solutions, calls attention to noncompliance due to a lack of will, promotes proposals for compliance
timelines by working with everyone involved, makes its facilities available, and takes whatever measure it deems necessary to help the process.
The Court from time to time may convene the State and victims’ representatives to a hearing to supervise compliance with its decisions, during which it also hears the decisions of the Commission. In such hearings, which tend
to last for about two hours, the State presents its advances in compliance with the obligations ordered by the Court in the judgment concerned, and the representatives of the victims and Inter-American Commission present their
observations regarding the state of compliance in question. The parties also have the options of answer and rejoinder, respectively. Finally, the Judges have the opportunity to question the parties.
In the context
of these hearings, as in hearings on provisional measures, the Court has a conciliatory posture and, to that extent, is not limited to taking note of the information presented by the parties, but rather, under the principles
that make it a human rights Court, among other measures, it suggests alternative solutions, calls attention to noncompliance due to a lack of will, promotes proposals for compliance timelines by working with everyone involved,
and makes its facilities available so that the parties can hold meetings. Hearings on Monitoring Compliance with Judgment can be public or private, according to the specifications of the Court or its Presidency.
Public hearings on Advisory Opinions are held so that any interested person (Universities, human rights clinics, non-governmental organizations, professional associations, individuals, state bodies, international organizations
and States) can present their oral observations on specific questions formulated by a member state or by the Inter-American Commission on which the opinion of the Inter-American Court is sought.
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 in 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 average duration of a contentious case before the Court in 2019 was 21.97 months. This average contemplates the length of time from the submission date of the case until the time when the Court issues its judgment of reparations.
An amicus curiae is a brief written by third parties to a case, who voluntarily offer their opinion on some aspect regarding the case, in order to collaborate with the Court in its resolution of the judgment.
The work of the Court is strictly judicial and concerns the competence bestowed upon it by the American Convention, with regards to its three functions: contentious, precautionary, and advisory. Therefore it cannot, for example,
pronounce upon the general human rights situation of a State or carry out visits in loco, as those are functions that derive from the competence of the Commission. However, under Article 58 of the Rules of Procedure, it can
“at any stage of the proceedings” request the execution of procedures for taking evidence in the context of its processing of a contentious case. In this manner, the Court has undertaken visits in situ in States’
territories in the context of specific cases. For example, in 2019, the Court performed two on-site visits carried out in the context of the Case Indigenous Communities Members of the Lhaka Honkat Association v. Argentina,
and Case of Artavia Murillo et al. (In Vitro Fertilization) v. Costa Rica.
Under its Rules of Procedure, the Court may make the following documents public: Its judgments and other decisions, including separate opinions, dissents, or concurrences, when the requirements mentioned in the Rules are met; parts
of the file, except those that may be considered irrelevant or improper; the progression of the hearings via technological means; and all other documents considered proper.
In addition, documents filed with the
Secretariat of the Court, concerning cases that have already been decided, are publicly accessible, unless the Court has decided otherwise.
Inter-American Defender and Victims’ Legal Assistance Fund
The Inter-American Defender is a person or group of persons, appointed by the Court in cases in which the alleged victims do not have duly accredited legal representation.
The Court has considered that for the effective defense of human rights and the consolidation of the Rule of Law, it is necessary that all people be assured the necessary conditions to be able to access both national and international
justice and effectively assert their rights and liberties. Providing legal assistance to those who lack economic resources or legal representation, on the one hand, avoids discrimination in regards to access to justice by not
making it dependent upon the economic position of the plaintiff, and on the other hand, allows a skillful and adequate defense in Court.
The Legal Assistance Fund of the Court seeks to facilitate access to the Inter-American System of Human Rights to those persons who do not currently have the necessary resources to bring their case to the System. Once a case has
been submitted to the Court, every person who lacks the economic resources needed to settle the expenses they might incur in the process before the Court is able to request aid specifically from the Victims’ Fund.
This process involves the deliberation of the Judges during the Period of Sessions in which the delivery of a Judgment is anticipated. The deliberation process may last for several days during a Period of Sessions, and due to its
complexity, it may be suspended and reinitiated in a later Period of Sessions. At this stage, the judgment is read, having been previously revised by the Judges, and there is space for debate regarding controversial points,
i.e., thorough questioning of the different legal decisions at issue. In addition, the Judges engage in a detailed study of the evidence offered in the record of the case and the parties’ arguments at all the stages of
the process.
If the Judges request a change or modification of some aspect of the draft judgment, a new proposal is immediately worked up that is in turn submitted to the consideration and vote of the Judges. In
this way, in this deliberation phase the Judges continue to discuss and approve different paragraphs of the draft judgment until coming to the point of resolution of the judgment, at which time the judgment is submitted to
a final vote by the Judges of the Court. In some cases, Judges submit dissenting or concurring opinions with regard to the Judgment, which are considered part of the final document. The result of the deliberation is a final
judgment, not subject to appeal, of the case.
It is a practice that is used to apply international law, in this case International Human Rights Law, and specifically the American Convention and its sources, including the jurisprudence of the Court. In this way, in various
judgments the Court has established that it recognizes that internal authorities are subject to the rule of law and, because of this, are obligated to apply the regulations in force in their legal systems. But when a State
is party to an
