The Inter-American system: Commission and Court

1. The instruments

• Charter of the Organization of American States, signed at Bogotá in 1948. The OAS has 35 member states in the Americas.
• American Declaration of the Rights and Duties of Man, adopted at Bogotá in May 1948, some months before the UDHR. It lists both rights and duties (to society, to children and parents, to vote, to obey the law, to work, to pay taxes). Like the UDHR it was adopted as a declaration, but the Inter-American Court has held that it is a source of obligations for OAS members.
• American Convention on Human Rights (the “Pact of San José, Costa Rica”), signed on 22 November 1969, in force on 18 July 1978. Not all OAS members are parties: the United States and Canada have never ratified it, and Trinidad and Tobago (1998) and Venezuela (2012) denounced it.
• Additional instruments: the Protocol of San Salvador on economic, social and cultural rights (1988), the Protocol to Abolish the Death Penalty (1990), the Inter-American Convention to Prevent and Punish Torture (1985), the Convention on Forced Disappearance of Persons (1994), and the Convention of Belém do Pará on violence against women (1994).

2. Rights under the American Convention

Chapter II (Arts. 3–25) covers civil and political rights: juridical personality, life (Art. 4, protected “in general, from the moment of conception”, with limits on the death penalty and a bar on its reintroduction once abolished), humane treatment, freedom from slavery, personal liberty, fair trial, no ex post facto laws, compensation for miscarriage of justice, privacy, conscience and religion, thought and expression (Art. 13, including a bar on prior censorship), right of reply, assembly, association, family, name, rights of the child, nationality, property, movement and residence, participation in government, equal protection, and judicial protection. Chapter III has a single Article (Art. 26) on progressive development of economic, social and cultural rights. Article 27 permits suspension in emergencies but lists a wider set of non-derogable rights than the ICCPR, including the judicial guarantees essential for their protection.

3. The Inter-American Commission on Human Rights

Created by the OAS in 1959, it began work in 1960 and has its seat in Washington, D.C. It has seven members, elected in their personal capacity by the OAS General Assembly for four years, re-eligible once. It represents all OAS member states.

Functions (Art. 41 of the Convention).

• To develop awareness of human rights among the peoples of the Americas.
• To make recommendations to governments on progressive measures.
• To prepare studies and reports, including country reports, often after on-site visits.
• To request information from governments on measures adopted.
• To respond to inquiries and provide advisory services.
• To take action on petitions (Arts. 44 to 51).
• To submit an annual report to the OAS General Assembly.

Petitions. Under Article 44 any person or group of persons, or any NGO legally recognised in an OAS member state may lodge a petition alleging a violation by a state party. The petitioner need not be the victim, which makes this the widest standing rule of any system. Inter-state communications under Article 45 require a declaration by both states. Under Article 46 a petition is admissible only if domestic remedies have been exhausted, it is lodged within six months of the final decision, and the matter is not pending elsewhere; the exhaustion rule does not apply where domestic law affords no due process, access to remedies was denied, or there is unwarranted delay.

Procedure. The Commission requests information from the state, may investigate and hold hearings, and places itself at the disposal of the parties for a friendly settlement (Arts. 48–49). If none is reached, it adopts a report with conclusions and recommendations (Art. 50). If the matter is not resolved or submitted to the Court within three months, the Commission may publish its opinion (Art. 51). It may also grant precautionary measures in urgent cases. For OAS members that are not parties to the Convention, such as the United States, it applies the American Declaration.

4. The Inter-American Court of Human Rights

Established under the Convention in 1979, seated at San José, Costa Rica. It has seven judges, nationals of OAS member states, elected by the states parties to the Convention for six years, re-eligible once.

Contentious jurisdiction.

• Only states parties and the Commission may submit a case to the Court (Art. 61). Individuals cannot go to the Court directly; their case must first pass through the Commission. Since the 2009 Rules of Procedure, victims participate in their own right once the case is before the Court.
• The Court’s contentious jurisdiction applies only to states that have made a declaration accepting it (Art. 62).
• If it finds a violation, the Court rules that the injured party be ensured the right, that the consequences be remedied and that fair compensation be paid (Art. 63(1)). Its reparation orders are wide: compensation, investigation and prosecution, public apologies, changes in legislation.
• Provisional measures in cases of extreme gravity and urgency to avoid irreparable damage, even in matters not yet before it at the Commission’s request (Art. 63(2)).
• Judgments are final and not subject to appeal (Art. 67); states parties undertake to comply (Art. 68).

Advisory jurisdiction (Art. 64). Any OAS member state, and OAS organs, may ask the Court to interpret the Convention or other treaties concerning human rights in the American states, or the compatibility of domestic laws with them. This is wider than in Europe. Examples: OC-5/85 (compulsory licensing of journalists violated freedom of expression) and OC-10/89 (the legal status of the American Declaration).

5. Velásquez Rodríguez v. Honduras (1988)

Manfredo Velásquez, a student, was seized in Tegucigalpa in 1981 by men linked to the armed forces and disappeared. In its first contentious judgment on the merits the Court held Honduras responsible for violating the rights to life, humane treatment and personal liberty. It laid down that a state must prevent, investigate and punish violations; that a state is responsible not only for acts of its agents but also for a lack of due diligence in preventing or responding to violations by private persons; and that where a pattern of disappearances is proved, circumstantial evidence can establish the state’s responsibility. Honduras was ordered to pay compensation to the family. The case is the basis of the due diligence standard now used by all human rights bodies.

6. Assessment

The system developed under military governments and has dealt mainly with disappearances, torture and amnesty laws, as in Barrios Altos v. Peru (2001), where the Court held that amnesty laws preventing investigation of grave violations have no legal effect. Its weaknesses are the absence of the United States and Canada from the Convention, slow procedures, and uneven compliance.

How this is examined

January 2026: “Explain the functions of the Inter-American Commission and Inter-American Court” (10 marks). June 2025: “American Commission on Human Rights” (6 marks). February 2025: “Jurisdiction of American Court of Human Rights”. August 2024: “Inter-American Court of Human Rights”. For the essay, take the Commission (section 3) and Court (section 4) in turn and close with Velásquez Rodríguez. For the jurisdiction note, contentious (Arts. 61 to 63, 67, 68) and advisory (Art. 64), with the point that individuals reach the Court only through the Commission.