The Johns Hopkins University Press Human Rights Quarterly

The Inter-American Commission on Human Rights and the Inter-American Court of
Human Rights: Reflections on a Joint Venture

Author(s): Cecilia Medina
Source: Human Rights Quarterly, Vol. 12, No. 4 (Nov., 1990), pp. 439-464
Published by: The Johns Hopkins University Press
Stable URL: http://www.jstor.org/stable/762494
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HUMAN RIGHTS QUARTERLY
The Inter-American Commission on

Human Rights and the Inter-American
Court of Human Rights: Reflections on
a Joint Venture
Cecilia Medina
1. INTRODUCTION
With the entry into force of the American Convention on Human Righ
the inter-American system for the promotion and protection of human rig
became a two-prong system. The first prong is formed by the mechan

developed under the Charter of the Organization of American States (O
which authorizes the Inter-American Commission on Human Rights to
pervise human rights in the territories of OAS member states. The sec
prong is composed of the mechanisms set forth in the Convention, wh
authorizes the Commission and the Inter-American Court of Human Rig
to handle complaints of human rights violations allegedly committed by an

state party to the Convention, and further provides for the Court to exerc
advisory jurisdiction.
The purpose of this article is to analyze the manner in which the

second, Convention-based mechanisms have started to operate. In Part
briefly examine the way the Commission operated before the Convent
entered into force and then describe the changes that the Convention brou
This section concludes with a discussion of limitations that may impede
1. See American Convention on Human Rights, adopted 22 Nov. 1969, entered into fo
18 July 1978, reprinted in Org. Am. States, Basic Documents Pertaining to Human Rig
in the Inter-American System, OEA/Ser.LN/II.71, Doc. 6 Rev. 1, 25-53 (1987). A
March 1988, twenty states have ratified the Convention: Argentina, Barbados, Boli
Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatem
Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Peru, Surinam, Uruguay, an
Venezuela. Id. at 55.
Human Rights Quarterly 12 (1990) 439-464 o 1990 by The Johns Hopkins University Press
440 HUMAN RIGHTS QUARTERLY Vol. 12
system. In Part II, I analyze the relationship bet
the Court in the context of several recent cases. The article concludes with
a look to the future and some suggestions for improving the system.
II. THE DEVELOPMENT OF THE INTER-AMERICAN SYSTEM
The Inter-American Commission on Human Rights was established as a

autonomous entity of the OAS by a resolution of the Fifth Meeting of Con-
sultation of Ministers of Foreign Affairs in 1959.2 The Commission w

originally conceived as a study group concerned with abstract investigations
in the field of human rights.3 However, the creators of the Commission did
not foresee the appeal this organ would have for the individual victims o
human rights violations. As soon as it was known that the Commission h
been created, individuals began to send complaints about human rights
problems in their countries.4 Prompted by these complaints, the Commission

started its activities with the conviction that in order to promote human righ
it had to protect them.
A significant part of the Commission's work was addressing the problem
of countries with gross, systematic violations of human rights, characterized
by an absence or a lack of effective national mechanisms for the protection
of human rights and a lack of cooperation on the part of the governmen

concerned." The main objective of the Commission was not to investigat
2. Org. Am. States, Resolution VIII, 5th Meeting of Consultation of Ministers of Foreig
Affairs, reprinted in Org. Am. States, Basic Documents, OEA/Ser.LN/1.4, 35-36 (1960
See also Schreiber, The Inter-American Commission on Human Rights (1970); and
Leblanc, The Promotion and Protection of Human Rights (1977).

3. For the debates on Resolution VIII, see Org. Am. States, Quinta Reunion de Consulta d
Ministros de Relaciones Exteriores, Actas y Documentos, OIEA/Ser.F/III.5. For the text o
the 1960 Statute, see Org. Am. States, Basic Documents (1960), supra note 2, at 9-13
Article 9 allows the Commission to study the condition of human rights in member state
and make recommendations to the governments of those states. According to Article 1,
the rights to be supervised were those of the American Declaration of the Rights of Man
adopted 2 May 1948. See American Declaration of the Rights of Man, reprinted in Org
Am. States, Basic Documents, supra note 1, at 18-24.

4. Forty-five communications concerning violations of human rights in Cuba and severa
others against the Dominican Republic and Paraguay had reached the Commission by
its Second Session. See generally Inter-Am. Comm'n H.R., Report on the Work Accom
plished during its First Session, 3-28 October 1960, OEA/Ser.LN/II,1, Doc. 32 (1961);
Inter-Am. Comm'n H.R., Report of the Work Accomplished during its Second Session
10-26 April 1961, OEA/Ser.L/V/ll.2, Doc. 24 (1961).
5. "Gross, systematic violations of human rights" I understand to be "those violations,
instrumental to the achievement of governmental policies, perpetrated in such a quantity
and in such a manner as to create a situation in which the rights to life, to personal
integrity or to personal liberty of the population as a whole or one or more sectors o
the population of a country are continuously infringed or threatened." See Medina, The
Battle of Human Rights; Gross, Systematic Violations of Human Rights and the Inter
American System ch. 11 (1988) (particularly at 16).
1990 Inter-American Commission and Inter-American Court 441
isolated violations but to document the existence of these gross, syste
violations and to exercise pressure to improve the general condition of hu
rights in the country concerned. For this purpose, and by means of its re
ulatory powers, the Commission created a procedure to "take cogniza

of individual complaints and use them as a source of information a
gross, systematic violations of human rights in the territories of the
member states.6
The Commission's competence to handle individual communicatio

was formalized in 1965, after the OAS reviewed and was satisfied wit
Commission's work. The OAS passed Resolution XXII, which allowed
Commission to "examine" isolated human rights violations, with a particu
focus on certain rights.8 This procedure, however, provided many obs
for the Commission. Complaints could be handled only if domestic remed
had been exhausted, a requirement that prevented swift reactions to

tions. Also, the procedure made the Commission more dependent on
governments for information. This resulted in the governments' either n
answering the Commission's requests for information or answering w
blanket denial that did not contribute to a satisfactory solution of the prob
Furthermore, once the Commission had given its opinion on the c

there was nothing else to be done; the Commission would declare th
government had violated the American Declaration of the Rights and D
of Man and recommend the government take certain measures, know
that this was unlikely to resolve the situation. The fact that some of
Commission's opinions could reach the political bodies of the OAS did
solve the problem, because the Commission's opinions on individual
were never discussed at that level. Consequently, in order not to lose
flexibility it had, the Commission interpreted Resolution XXII as granting
Commission power to "examine" communications concerning individ
6. The original procedure was set forth in Articles 25 through 29 of the 1960 regula
The text of these regulations is reprinted in Org. Am. States, Basic Documents (1
supra note 2. This procedure allowed the Commission to request information from
government and the complaining party and investigate the facts in the communicat
The Commission used this information to negotiate the fate of certain victims or to atte
improving the general situation of human rights in the country. The Commission
published the information for the purpose of "mobilizing shame."
7. The Commission had been particularly successful in its handling of the situation
Dominican Republic in the early 1960s. See Schreiber, The Inter-American Commi
on Human Rights in the Dominican Crisis, XXII International Organization, 508-28 (1
See also, Thomas & Thomas, Human Rights and the OAS: International Law in the Wes
Hemisphere 137-95 (1974).
8. See Org. Am. States, Resolution XXII of the Second Special Inter-American Confer
OEA/Ser.E/XIII.I Doc. 150 Rev. (1965). The human rights given particular attention w
those in Articles 1 (right to life, liberty, and personal security), 2 (right to equality b
the law), 3 (right to religious freedom and worship), 4 (right to freedom of investiga
opinion, expression, and dissemination of information), 18 (right to a fair trial), 25 (
of protection from arbitrary arrest), and 26 (right to due process of law).
violations of certain rights specified in the resolu

its power to "take cognizance" of communication
the human rights protected by the American Dec
preserved this broader power for the purposes of ide

human rights violations.9
The procedure to "take cognizance" of commu

became the general case procedure and was later
general human rights situation in a country. This p
the Commission's practice, had several positive

the Commission's purposes. First, it could be st
whether the communications met any admissibility
the absence of any communication. All that was n
reach the Commission that serious violations were tak
of an OAS member state.10 Second, the Commiss

role by requesting and gathering information by
from witnesses, newspapers, and experts, and a
visit the country at the Commission's convenienc
could publicize its findings in order to put pressure

Finally, the report resulting from the investigation c
bodies of the OAS, thereby allowing for a political d
which, at least theoretically, could be followed by p
the governments involved.

Since financial and human resources were lim
concentrated all its efforts on the examination o
human rights in each country. The examination o
took a secondary place. The Commission appeare
because it had a duty to do so and not because o
intervention would be helpful. After all, the special
cases did not improve the victims' possibilities f
mission could attempt to solve the cases throug
general human rights situation in the country.
In short, the Commission was the sole guarant
continent plagued with gross, systematic violatio
was part of an international organization for which
initely not the first priority, and these facts made
9. See Inter-Am. Comm'n H.R., 1970 Regulations, reprinted

espafiol, (1970). Article 37 regulated the "taking of cogniz
Article 53 the examination of communications. The adva
munications instead of "taking cognizance" of them was tha
its opinion at the end of the procedure.
10. The Commission stated its power to start a procedure by i
of the 1980 Regulations. See Inter-Am. Comm'n H.R., Han
taining to Human Rights, OEA/Ser.LUV/1.50 Doc. 6, 126 (
Commission looked upon its task. Apparently, the Commission viewe

more as an international organ with a highly political task to perform t
as a technical body whose main task was to participate in the first p
a quasi-judicial supervision of the observance of human rights. The
mission's past made it ill-prepared to efficiently utilize the additional po
the Convention subsequently granted it.
A. The System Under the American Convention on Human Rights
The Convention vested the authority to supervise its observance in

organs: the Inter-American Commission, which pre-existed the Conve
and Inter-American Court of Human Rights, which was created by the C

vention.
The Inter-American Commission is composed of seven members e
in a nongovernmental capacity by the OAS General Assembly and repres

all the OAS member states." The entry into force of the Convention in 1
invested the Commission with a dual role. It has retained its status as an
organ of the OAS, thereby maintaining its powers to promote and protect
human rights in the territories of all OAS member states. In addition, it is
now an organ of the Convention, and in that capacity it supervises human
rights in the territories of the states parties to the Convention.
The Commission's functions include: (1) promoting human rights in all

OAS member states; (2) assisting in the drafting of human rights documents;'2
(3) advising member states of the OAS; (4) preparing country reports, which
usually include visits to the territories of these states; (5) mediating disputes
over serious human rights problems;13 (6) handling individual complaints

and initiating individual cases on its own motion, both with regard to states
parties and states not parties to the Convention; and (7) participating in the
handling of cases and advisory opinions before the Court.'4
11. American Convention on Human Rights, arts. 34-36, reprinted in Org. Am. States, Basic
Documents, supra note 1, at 25-53.
12. The Commission played a major role in drafting the American Convention on Human
Rights, the Inter-American Convention to Prevent and Punish Torture, and the Additional
Protocol to the American Convention on Economic, Social and Cultural Rights.
13. The Commission played such a role when guerrillas seized the Embassy of the Dominican
Republic in Colombia. See Uribe, La Comisi6n Inter-americana de Derechos Humanos
y la toma de la Embajada Dominicana en Bogotd, in Human Rights in the Americas:

Homage to the Memory of Carlos A. Dunshee de Abranches 330-38 (1984); do Nascimento e Silva, O papel da Comissbo Interamericana de Direitos Humanos no Sequestro
de Diplomatas em Bogotd, in id. 319-29.
14. American Convention on Human Rights, arts. 48, 57, reprinted in Org. Am. States, Basic
Documents, supra note 1, at 25-53; Rules of Procedure of the Court, art. 52, reprinted
in Org. Am. States, Basic Documents, supra note 1, at 117-37; Commission's Statute,
arts. 18, 20, reprinted in Org. Am. States, Basic Documents, supra note 1, at 65-73.
The Inter-American Court consists of seven j

number of states that have recognized the juris
though the Court is formally an organ of the C
OAS,16 its judges may be nationals of any member

or not they are parties to the Convention.17
The Court has contentious and advisory jurisd
contentious jurisdiction, the Court settles controve

tation and application of the provisions of the Am
a special procedure designed to handle individual

states parties to the Convention. Under its advis
may interpret not only the Convention but also an

the protection of human rights in the American
give its opinion regarding the compatibility of the
member state with the requirements of the Conven
treaties to which the Convention refers.19 In addit
vented from giving its opinion regarding any ques
or scope of the rights defined in the Convention o
have to be considered by the Court in the exerci
diction or by the Commission's supervision of h
jurisdiction of the Court may be set in motion b
whether or not it is a party to the Convention,
in Chapter X of the OAS Charter, which include
15. The first election of judges for the Court took place i
installed on 3 September 1979 in its seat in San Jose de
Court was approved by the OAS General Assembly at its
Oct. 1979 by Resolution 448. For the text of the Statut
Documents, supra note 1, at 105-15. The Rules of Proced
at its Third Regular Session in 1980. For the text of the R
16. Efforts were made to include the Court in the OAS Char
Protocol of Cartagena de Indias. According to the Court, t
due to an apparent misunderstanding. See Inter-Am. Ct. H
V/ill.15 Doc. 13, 8-9 (1986).
17. American Convention on Human Rights, art. 52, repri

18. For a more detailed study of the Court, see Medina, Th
note 5, ch. VII. See also Buergenthal, The Inter-American
Am. J. Int'l L., 231-45 (1982); Cerna, La Cour Interamer
Ses premiere affaires, XXIX Annuaire Francaise de Droit In
(1983); Cerna, La Cour Interamericaine des Droits de I'H

XXXIII A.F.D.I., 351-69 (1987).
19. See Inter-Am. Ct. H.R., The effect of reservations on the e

Convention (arts. 74 and 75), Advisory Opinion OC-2/82, S
20. American Convention on Human Rights, art. 64, repri
Documents, supra note 1, at 25-53. Forthe interpretation of

see Inter-Am. Ct. H.R., Other Treaties Subject to the Advis
(art. 64 American Convention on Human Rights), Adviso
(1982). For the power to interpret the American Declaratio
The procedure for handling individual or state complaints begins befo

the Commission.21 The procedure resembles those set forth in the Europe
Convention and in the Additional Protocol to the International Covenant o
Civil and Political Rights.22 It is a quasi-judicial mechanism which m
started by any person, group of persons, or nongovernmental entity lega

recognized in one or more of the OAS member states, regardless of whet
the complainant is the victim of a human rights violation. This rig

individual petition is a mandatory provision in the Convention, bindi
all states parties. Inter-state communications, however, are dependent
an explicit recognition of the competence of the Commission to receiv
examine them.23 In addition, the Commission may begin processing
on its own motion.24
After receiving the communication, the Commission determines

admissibility of the complaint. The Commission will judge any comm
cation admissible if all the following requirements are met: (1) the
munication alleges a violation of a right or rights protected by the Conven

(2) a communication on the same subject is not pending or has not previou
been studied by the Commission or any other international organizat

(3) the remedies under the state's domestic laws have been exhauste
the state does not respect the due process of law for the alleged viol
and (4) the communication is brought in a timely manner.25
The Commission has powers to request information from the governm

concerned and, with the consent of the government, to investigate the fa
in the complaint at the location of the alleged violation. If the govern
does not cooperate in the proceedings by providing the requested informa
Man, which is not a treaty, see Inter-Am. Ct. H.R., Interpretation of the American
laration of the Rights and Duties of Man Within the Framework of Article 64 o
American Convention on Human Rights, Advisory Opinion OC-10/89 (1989).
21. American Convention on Human Rights, arts. 44-51, reprinted in Org. Am. States
Documents, supra note 1, at 25-53. See also Inter-Am. Comm'n H.R. Regulations,
31-50, reprinted in Org. Am. States, Basic Documents, supra note 1, at 75-103.
22. For a succinct description of the procedure, see Medina, Procedures in the Inter-Am
System for the Promotion and Protection of Human Rights, 6 Netherlands Q. Hum.
83-102 (1988). For the procedure followed in the European Convention, see Zwaak
Protection of Human Rights and Fundamental Freedoms within the Council of Eu
id. at 43-68. For a more detailed study, see Van Dijk & Van Hoof, Theory and Pra
of the European Convention on Human Rights (1982). For the Covenant's addit
protocol, see de Zayaz, Moller, & Opsahl, Application of the International Covena
Civil and Political Rights under the Optional Protocol by the Human Rights Commit
28 German Y.B. of Int'l L. 9-64 (1985).
23. American Convention on Human Rights, arts. 44 and 45, reprinted in Org. Am. S
Basic Documents, supra note 1, at 25-53.
24. Id.; Inter-Am. Comm'n H.R. Regulations, art. 26(2), reprinted in Org. Am. States,
25. American Convention on Human Rights, arts. 46 and 47, reprinted in Org. Am. S
Basic Documents, supra note 1, at 25-53.
within the time limit set by the Commission, Articl

Regulations allows the Commission to presume that t
are true, "as long as other evidence does not lead to a
Following this, the Commission need investigate t

Before ending its consideration of a case, the C
itself at the disposal of the parties with a view to reac

of the matter on the basis of respect for the human
Convention."27 In following the regulations, the
friendly settlement only when (1) both parties to th

to cooperate in this effort; (2) the positions and alleg
sufficiently precise; and (3) in the judgment of the C
is susceptible to this settlement procedure.28
If no friendly settlement is reached, Article 50 of
the Commission to draw up a draft report setting fo
the Commission's conclusions. This first report is not
mitted only to the state concerned so the state's offi
the Commission transmits the report, it may also ma
mendations to the state.29 Under Article 51 of th

mission may write a second report if, within the
article, the matter has not been submitted to the Co
or by the state concerned, or it has not been settl

second report will contain the Commission's opin
garding the case, the measures the Commission r
limit for the state to comply with these measures. W
expired, the Commission decides whether the sta

adequate measures and whether to publish the rep
The Court may consider a case that is brought eith

or by a state party to the Convention.31 For the Com
to the Court, the case must have been admitted f
26. Inter-Am. Comm'n H.R. Regulations, art. 42, reprinted in

ments, supra note 1, at 75-103.
27. American Convention on Human Rights, art. 48, reprint
28. Inter-Am. Comm'n H.R. Regulations, art. 45, reprinted in
ments, supra note 1, at 75-103. The Commission has repeated
settlement procedure is not effective in cases of disappea
See, e.g., Resolutions 7/86, 9/86, and 10/86 against Nicarag
Comm'n H.R., Annual Report (1985-1986), OEA/Ser.LNV
(1986); and Resolutions 17/87, 18/87, and 19/87 against Pe
Comm'n H.R., Annual Report, OEA/Ser.LV/II.71 Doc. 9 Re
Documents, supra note 1, at 25-53. See also Inter-Am. Com
reprinted in Basic Documents, supra note 1, at 65.
31. Id. at art. 61(1).

Commission's draft report sent to the state party.32 In addition, the state
recognize the Court's general contentious jurisdiction or a limited jurisdic
specified by a time period or case.33 For a state party to be able to p

case before the Court, the only requirement is that both states must
recognized the Court's contentious jurisdiction.34
During the proceedings, the Court has powers to investigate the
as it deems necessary." The Court ordinarily concludes its considerati
a case by issuing a judgment. If the Court finds that there has been a vio
of a right or freedom protected by the Convention, it shall rule "tha

injured party be ensured the enjoyment of his right or freedom tha
violated."36 If appropriate, it may also rule that "the consequences o
measure or situation that constituted the breach of such a right or freed

be remedied and that fair compensation be paid to the injured party."37 S
are under the international obligation to comply with the judgment o

Court in any case to which they are parties. The part of the judgmen
stipulates compensatory damages has executory force in the state c
cerned.38
If a state does not comply with the decision of the Court, the Court m
inform and make recommendations to the OAS General Assembly.39

is no reference in the Convention to any action that the General Asse
might take; the assembly, being a political body, may take any pol
action it deems necessary to persuade the state to comply with its int
tional obligations.40
As may be apparent, a petition to the Court by the Commission or sta
party to the Convention is meant to handle isolated violations of h

rights committed by a state which otherwise respects the rule of law
procedure functions efficiently when the states concerned act in goo
and cooperate with the human rights supervisory organs. In the reali
the inter-American system, unfortunately, goodwill and cooperation on t
32. Inter-Am. Comm'n H.R. Regulations, art. 50, reprinted in Org. Am. States, Basic
ments, supra note 1, at 75-103.
33. Id.
34. American Convention on Human Rights, art. 62, reprinted in Org. Am. States, Basic
Documents, supra note 1, at 25-53. By 1981, two years after the Court had been established, only four states (Costa Rica, Peru, Honduras, and Venezuela) had recognized the
Court's contentious jurisdiction. In 1984, Ecuador and Argentina joined in, and in 1985
Colombia and Uruguay. Guatemala and Surinam made the pertinent declaration in 1987,
and Panama in 1989.
35. Inter-Am. Ct. H.R. Rules of Procedure, art. 34, reprinted in Org. Am. States, Basic Documents, supra note 1, at 117-35.
36. American Convention on Human Rights, art. 63(1), reprinted in Org. Am. States, Basic
37. Id.
38. Id. at art. 68(2).
39. Id. at art. 65.
40. See Medina, The Battle of Human Rights, supra note 5, 173-74.
part of the states are seldom seen. This being th

bound to be inadequate.41
In addition to the problems posed by the Comm
of a political organization and by the lack of coope
financial limitations are also potentially troubles
provide the Commission with the necessary means to
activities. The Commission usually receives about

with each complaint frequently involving more th
the number is much higher; in 1980, when mem
visited Argentina, 5,000 complaints were received. Fu
year, the Commission carries out two or three obs
monitors the general situation of human rights in at

tries. To perform all these functions the Commission
ten-day sessions a year. To support these activities th
has only seven lawyers, including the Executive Se

and one administrative official, and its budget is l
OAS budget. Under these circumstances, the Comm
a choice as to what it can accomplish and place
perceives as most likely to increase the general respe

this ordering, the handling of individual complaints
The Court fares somewhat better, but this is only
it had not been able to carry out a normal amount

seen when the VelAsquez case is examined, the C
investigatory work by itself. Had the Court wishe
probably been limited by a lack of funds.
III. THE RELATIONSHIP BETWEEN THE COMMISSION

AND THE COURT
The Court was constituted in 1979, a year after the Convention entered in
force, and depended on the organs of the OAS or the states parties to
Convention to initiate its work. With regard to its contentious jurisdi
in particular, the Court needed some collaboration on the part of the
mission. Although states and the Commission could present a case bef
the Court, states were reluctant to do so, for political reasons.42 This left
Commission as the most important provider of work for the Court.
41. See id. at ch. 11.
42. This procedure exists in several international treaties, but until now only the European
system has handled inter-state communications and only in very small numbers. Since
1953, when the European Convention entered into force, eighteen inter-state complaints
have been lodged in Strasbourg, compared to an annual average of 300 to 400 individual
applications.
Commission, however, did not resort to the Court's contentious jurisd
until 1986. As for the Court's advisory jurisdiction, the Commissio

three years before requesting an opinion from the Court.
A. The First Stage: Noncooperation
On 15 July 1981, the government of Costa Rica brought the Court

contentious case, asking the Court to investigate an alleged viola
Costa Rican authorities of human rights guaranteed by the Conventio
was a peculiar request in several regards. The first oddity of th
Viviana Gallardo, et al.,43 was that a state initiated procedures against

International supervision of human rights is designed to be subsidiary
of the state. It seems strange that a government seriously concern

human rights, as the government of Costa Rica appeared to be, w
an international organ to investigate an alleged human rights violation
of undertaking an internal investigation and attempting to settle

domestically.44
A second peculiarity was that the government asked the Cour
vestigate whether there had been a violation of a human right protec
the Convention, a task that comes under the mandate of the Com
The government stated that it would waive its right to have the c
tigated by the Commission, because the only advantage of such an
tigation was that Commission procedures allow for a friendly set
while the government was only interested in the Court's decision on w
the facts of the case showed that a violation had occurred.45 This left the
Commission in a difficult position because according to the system, the

investigation of alleged human rights violations is one of the Commission's
primary tasks.
In its final decision, the Court did not admit the application of the
government of Costa Rica, finding that the state could not waive the Commission's admissibility, investigation, and report procedures, because these
were instituted to benefit not only the states but also individuals.46 Having
43. Viviana Gallardo was a suspected terrorist who had allegedly been murdered while in
prison. The two other victims in the case were Alejandra M. Bonilla and Magaly Salazar,
who had been wounded on the same occasion. Inter-Am. Ct. H.R., In the Matter of Viviana
Gallardo et al., No. G 101/81. Series A (1984) and Series B (1986).

44. Domestic legal remedies were in progress when the government presented the case to
the Court, and the government formally waived the requirement of the prior exhaustion
of these remedies in order to be able to resort to the Court.
45. Gallardo, Series B, supra note 43, at 13.

46. The Court concluded that the procedures before the Commission could not be waived
by the state, since they had not been created for the sole benefit of the states, but also
to allow for the exercise of important individual rights. The Court gave two reasons for
rejected the main petition, the Court proceeded to gr

alternative plea to refer the case to the Commission.
the end of the matter, as the Court also decided to reta
its docket pending the Commission's proceedings.47 The
jurisdiction over the case, which would have allowe
the merits once the procedural objections had been c
However, after a two-year investigation, the Com
case inadmissible under Article 48(1)(c) of the Conve
information or evidence subsequently received. The C
reason was that the system established by the Conv
operate in lieu of the domestic legal system, and the
from the government of Costa Rica made it clear that g
in conformity with current legal provisions and punish
of the law the person responsible for the acts charge
The question that immediately arises is why the C
to declare the complaint inadmissible after an invest
almost two years. On the same grounds it declared t
the Commission could have decided the merits of t
the application inadmissible, the Commission barred
sidering the substantive issues in the case, since it is
Court to exercise its contentious jurisdiction that th
and report its findings regarding these issues.49
The Commission's decision could be perceived as a
the Court from exercising its powers, and in fact, as a r
the Court struck the case from its list.50 Judge Piza
reference to the "error [of the Commission] of endin
declaring the case inadmissible when in fact what it
by dismissing it for being inadmissible.""5 The Cost
handling of its application could also be perceived as
this conclusion: first, the Commission was "the channel through

gives the individual qua individual the possibility to activate the
the protection of human rights," since individuals were not em
to the Court; second, only the Commission had the power to
function of promoting friendly settlements within a broad conc
paras. 23, 24, and 25.

47. Id., Decision of 13 Nov. 1981, at para. 1.
48. While the procedure before the Court was being carried out,
its domestic procedures. Sentences were finally handed down ag
for the crimes of qualified homicide, aggravated assault, and
Gallardo, Alejandra Bonilla, and Magaly Salazar. See id., Dec

para. 3.
49. American Convention on Human Rights, art. 61(2), reprinted in Org. Am. States, Basic
50. See Gallardo, supra note 43, Decision of 8 Sept. 1983.
51. Id. at para. 26 (Piza, J., dissenting).
the Commission's work. The request of Costa Rica does not seem to
helped the system to a good start.
B. The Second Stage: The Commission Requests Advisory Opinions
The Commission resorted to the Court for the first time on 28 June
when it requested an advisory opinion concerning the interpretation o
ticles 74 and 75 of the Convention which concern the ratification and
reservation process for the Convention.52 In answering the Commission's

request,53 the Court took the opportunity to stress that "given the broad
powers relating to the promotion and observance of human rights which
Article 112 of the OAS Charter confers on the Commission," the Commission,
unlike other OAS organs, enjoyed "as a practical matter, an absolute right
to request advisory opinions within the framework of Article 64(1) of the
Convention.""54
The second time that the Commission consulted the Court was by far
more important and more relevant toward addressing the problem of the
protection of human rights. On 18 September 1982, the Commission began
actively seeking to have the government of Guatemala suspend the death
sentences handed down by special courts that were created outside the
regular judicial apparatus and operated without due process of law.55 Moreover, these courts imposed the death sentences for offenses not previously
punishable by death. The Commission's previous efforts had been unsuccessful and several individuals had been executed. The legal basis for the
Commission's request was the Convention's provision on due process and
the provision of Article 4(2) of the Convention that prohibits extending the
death penalty to crimes to which it did not apply when the Convention
entered into force. The Guatemalan government counterargued that it had
made a reservation regarding Article 4(4) and therefore was allowed to apply
the death penalty to new crimes.s6
52. The Commission asked the Court for an interpretation of the reservation provision of the
Convention that appeared to conflict with the reservation provision in the Vienna Convention on the Law of Treaties.
53. The Court stated, "i[The Convention enters into force for a State which ratifies or adheres
to it with or without reservation on the date of the deposit of its instrument of ratification
or adherence." Inter-Am. Ct. H.R., The effect of reservations, supra note 19, at 19.
54. Id. at para. 16, 9. Article 64(1) allows consultation on the interpretation of the American
Convention or other human rights treaties in force for American states.
55. The case of Guatemala and the death penalty has been analyzed in Moyer & Padilla,
Executions in Guatemala as decreed by the Courts of Special jurisdiction in 1982-83, in

Human Rights in the Americas, supra note 13, at 280-89.
56. See Inter-Am. Comm'n H.R., Informe sobre la Situacion de los Derechos Humanos en
Guatemala, OEA/Ser.LNV/II.61 Doc. 47, 47-65 (1983).
The Commission decided to ask the Court to d

Guatemala's reservation and issue an advisory op
party to the Convention but had not recognized the

of the Court, and therefore, in principle, the case w
the Court. Despite Guatemala's objection that the C

a ruse to have the Court pronounce on a matter,
request. The Court stated that the Convention,
[bly permitting Member States and OAS organs to seek

a parallel system to that provided for under Article 62
judicial method of a consultative nature, which is des
organs to comply with and to apply human rights tr
them to the formalism and the sanctions associated wi
process.s7
The Commission's decision to resort to the Court and the Court's acceptance of the request despite Guatemala's objection were not only productive for the case,"8 but also for the system. A door was opened to joint
efforts between the Commission and the Court to protect human rights,
particularly in situations of gross, systematic violations, because such states
often are not parties to the Convention, or if they are, have not recognized
the competence of the Court.

This positive development was undermined, however, by the later handling of the case submitted by Stephen Schmidt. Mr. Schmidt, an American
residing in Costa Rica, had been sentenced to three months in prison because
he was working as a journalist without having a license issued by the Association of Journalists, in violation of Costa Rican law. According to Mr.
Schmidt's complaint, the license law violated Article 13 of the Convention,
which protects the freedom to seek, receive, and impart information and
ideas.
After an attempt at a friendly settlement failed, the Commission decided
in favor of the Costa Rican government. The Commission found that the
license law did not restrict the freedoms guaranteed by the Convention, but
was only a way of monitoring and controlling the exercise of a profession."9
At this point, the Commission could take one of two actions: it could
either end the case, or it could send the case to the Court in order to seek
57. Inter-Am. Ct. H.R., Restrictions to the Death Penalty (arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83, Series B No. 3, para. 43, 72-73
(1983).
58. The Court's advisory opinion was contrary to Guatemala's interpretation of its reservation,
but even before it was given, the government of Guatemala cabled the Commission to
announce that it had decided to reexamine and suspend, for the time being, the carrying
out of death sentences handed down by the courts of special jurisdiction. Id. at 221-24.
59. Inter-Am. Comm'n H.R., Annual Report 1984-1985, Resolution 17/84, OEA/Ser.LV/II.66
Doc. 10 Rev. 1, 51-77 (1985).
an authoritative judicial interpretation of Article 13. There were a nu
of reasons to refer the case to the Court: (1) the Commission had not rea
a unanimous decision,60 (2) several member states of the OAS had legislat
similar to that of Costa Rica and therefore the problem affected many p
and (3) freedom of expression is an important human right often vi
by governments. In spite of these considerations, the Commission chose n

to send the case to the Court.
The government of Costa Rica, however, in fulfillment of a commitment
it had made to the Inter-American Press Association, decided to request that
the Court issue an advisory opinion on the matter.61 The Court then ruled
that Costa Rica's legislation did violate the Convention and went on to
comment on the Commission's failure to submit the case to the contentious

jurisdiction of the Court:
Considering that individuals do not have standing to take their case to the Court
and that a Government that has won a proceeding in the Commission would
have no incentive to do so, in these circumstances the Commission alone is in
a position, by referring the case to the Court, to ensure the effective functioning
of the protective system established by the Convention. In such a context, the
Commission has a special duty to consider the advisability of coming to the
Court.62
By not sending the case to the Court, the Commission lost an opportunity
to have an authoritative interpretation of an important human right in the
Convention and created the awkward situation of having two contradictory

opinions, the Commission's report and the Court's advisory opinion, on the
same subject. Regardless of the resulting decision on the merits of the case,
it would have been preferable to have the Commission's view changed by
a binding decision of the Court.
C. The Third Stage: The Commission Seizes the Court

In 1986, the Commission submitted three contentious cases to the Court.63
In addition to the historical significance of this step, the cases were also of
60. The resolution had been approved by a vote of five to one.

61. See Inter-Am. Ct. H.R., Compulsory Membership in an Association Prescribed by Law
for the Practice of Journalism (arts. 13 and 29 American Convention on Human Rights),
Advisory Opinion OC-5/85, Series A No. 5, 86 (1985).
62. Judge Cisneros was still more outspoken and expressed that "the love that we have put
into our work has not been sufficient to avoid the sense of frustration that I feel in leaving
the Court before it has had the opportunity to hear a single case of a violation of human
rights, in spite of the sad reality of our America in this field." Id. at 145 (Declaration of
Judge Maximo Cisneros).
63. The three cases were the Veldsquez Rodrfguez Case, the Godinez Cruz Case, and the
Fairen Garbi and Solis Corrales Case. This article will only examine the first case.

great significance because of their subject matter.
the Veldsquez case6 discussed below, concern
peared in Honduras at a time when the general

in that country was extremely serious. Actually
instances of gross, systematic violations of hum
whether a judicial mechanism could contribute
problem that, in its roots, escaped a legal solut
offered the possibility for the relatives of the victi
community to see justice done. The Court's inv
possibility for the relatives of the victims to be gi

human rights violations committed by the governm
Angel Manfredo Veldsquez Rodrfguez, a studen

and tortured by the armed forces of Honduras.
that he was being held.66 At the time of the disap
the Commission was processing several commu

disappearances of individuals. The Velasquez cas
more than a hundred disappearances in Hondura
The Commission received the complaint in O
1983, after several unsuccessful attempts at obt
case from the government of Honduras, the Co
Article 42 and presume the facts of the compla
settlement was not attempted.68
The Commission issued a first report, Resolut
Article 50 of the Convention.69 The Commission concluded that Honduras
had seriously violated Articles 4 and 7 of the Convention, which protect the
rights to life and personal liberty. The Commission recommended that the
government: (1) order a thorough and impartial investigation to determine
who was responsible for the acts denounced; (2) punish those responsible
in accordance with Honduran law; and (3) inform the Commission within
sixty days about the measures taken to carry out the recommendations set
forth in the Resolution.70
64. See Inter-Am. Comm'n H.R., Annual Report 1985-1986, OEA/Ser.LNV/1.68 Doc. 8 Rev.
1, 40-47 (1986) for a text of Resolution No. 22/86, case 7920.
65. Inter-Am. Ct. H.R., Velhsquez Rodrfguez Case, Judgment of 28 July 1988, Series C, No.
4, para. 3.
66. Id.
67. Since Honduras was party to the American Convention, the Veldsquez case was handled
as an individual case according to the procedure set forth beginning at Article 44 of the
American Convention and Article 31 of the Commission's regulations.
68. See supra note 28.

69. The resolution was not published in the Commission's Annual Report. Its text can be
found under document OEA/Ser.L/VII.62 Doc. 44.
70. Inter-Am. Ct. H.R., Veldsquez Rodrfguez Case, Preliminary Objections, judgment of 26
June 1987, Series C, No. 1, para. 19.
On 18 November 1983, within the sixty-day period, the governm
submitted a petition for reconsideration on the grounds that domestic leg
remedies had not been exhausted, because a writ of habeas corpus b

the Supreme Court of Justice of Honduras was still pending and the
ernment had not ceased making efforts to establish the whereabouts of M
Velasquez. The Convention does not provide for reconsideration of

olution in cases against states parties,71 and the grounds for requestin
consideration in this case were highly questionable from a legal standp
since Honduras had not objected to the Commission's involvement a
first opportunity.72 The Commission nevertheless agreed to reconside
case. The Commission received additional information from the complaini

party and sent it to the government. Despite the requests of the Commis
the government did not provide any additional information.

On 4 April 1986, the government of Honduras sent a cablegram to
Commission informing it that proceedings had been instituted against sev
individuals for the crimes of murder, torture, abuse of authority, and di
dience, and that all charges had been dismissed except for the proceed
against General Gustavo Alvarez Martinez, "whose testimony was not
because he was outside the country.""73
With this information, the Commission decided to close the case
approve Resolution 22/86, confirming Resolution 30/83 and referrin

case to the Court. From a procedural standpoint, Resolution 22/86 w
confusing. The Commission may send a case to the Court after it has writ
the first report mentioned in Article 50 of the Convention. That report w
Resolution 30/83, in which the Commission issued recommendation
set a time limit for the government to take certain measures. By confirm
Resolution 30/83, the Commission appeared to renew its previous rec

mendations, including the sixty-day time period it had granted Hond
On 24 April 1986, before this second sixty-day period ended, the C
mission submitted the case to the Court.
The Commission asked the Court to determine whether Honduras

violated Articles 4 and 7, as well as Article 5, which guarantees the right
humane treatment. The Commission also asked the Court to order, if

was a violation, that "the consequences of the situation that constitute
breach of such right or freedom be remedied and that fair compensation
71. Article 54 of the Commission's Regulations allows a request for reconsideration in

against states that are not parties to the Convention, probably because this proce
ends with a report that may be immediately published. The procedure against s
parties contemplates a first report with eventual recommendations and then a se
report. The first report is confidential. See supra notes 29-30 and accompanying tex
72. Non-exhaustion of domestic remedies must be alleged at the earliest opportunity pos
or the government is deemed to have waived the requirement.
73. Resolution 22/86 of the Commission, supra note 64, para. 19.
paid to the injured party or parties."74 The follow

on some procedural aspects of the case that are im
work of the Commission and the Court.
1. Procedural Challenges to the Commission's Han
The government of Honduras posed several prelim

the Court against the Commission's procedures. Th
tioned whether the Court had jurisdiction to con
procedural objections. The Commission contended
an appellate tribunal and therefore had limited j
prevent the Court from reviewing certain proced
including those raised by the Honduran government.

argument, stating that it was competent to decide al
interpretation or application of the Convention ac

including the procedural objections raised."7
The first objection made by Honduras was that the
formally declared the complaint admissible. On th
cluded that, although a declaration of inadmissibility

declaration of admissibility was not.76 The Court's ra
to observe certain formalities is not necessarily r

the international plane." The Court found it essen
necessary for the preservation of the procedural righ

diminished or unbalanced, and that the objectives of
be met."77
A second objection of the government was tha

improperly applied Articles 50 and 51 of the Con
procedures of the draft and final reports when no fr
been reached. The government of Honduras argue

of Resolution 30/83 by Resolution 22/86 "should h
day period granted therein for the Government to
recommendations."'" Furthermore, the governmen
86 had "allowed the Court and the Commission to consider the matter
simultaneously," inasmuch as within the sixty-day period Honduras still had
an opportunity to reply to the Commission's recommendations.79

The Court answered the government argument by stating that the purpose
74. Velsquez, Preliminary obj., supra note 65, para. 2.
75.
76.
77.
78.
79.
Id. at paras. 28-30.

Id. at paras. 39-41.
Id. at para. 33.
Id. at para. 72.
Id. at para. 75.
of the procedure is to allow a reasonable period of time for the governmen
to resolve the matter before coming to the Court. Because the Commis
reconsidered the case, the government actually had been afforded a m
longer period of time to adopt the recommendations.80 Similarly, the Cour
stated that the government's second objection was invalid because the C
mission's application to the Court unequivocally showed that it had c
cluded its proceedings and submitted the matter for judicial settlemen
The Court stated that once the Commission has sent a case to the Court
powers to continue handling the case cease, because the filing of the sec
report mentioned in Article 51 is conditional on the failure to file a c
with the Court.82 The Court concluded that "although the requirement
Article 50 and 51 have not been fully complied with, this has in no w
impaired the rights of the government and the case should therefore not b
ruled inadmissible on those grounds."83
The Court noted that the Commission's decision to reconsider Resolution
30/83 had "negative effects on the complaining party's right to obtain
international protection offered by the Convention within the legally estab
lished time frames."" The Court did not dismiss the possibility of a rec
sideration, although the Commission's regulations explicitly provide for
consideration only of cases against non-parties to the Convention. Th
procedure might be appropriate for states parties, the Court observed, whe
the government shows an intention to resolve the case through domes
channels within a reasonable time." This shows that to some extent,
Court shares the Commission's loose approach and is willing to give m
weight to the general aim of the procedures than to the formal written ru
A third objection of Honduras was that the Commission had not a
tempted a friendly settlement. The Commission's decision was based on
regulation developed from Article 48(f) of the Convention, which provi
that the Commission should be in a position to facilitate a friendly set
ment.86 Article 45 of the Commission's regulations outlines the procedu
for establishing a friendly settlement. In addition, Article 45 permits
Commission not to initiate negotiations if the Commission determines t
a case is not amenable to friendly settlement. The government maintai
that an attempt at a friendly settlement was obligatory since the rule in th
Commission's regulations contradicted the requirements of the Convent
80.
81.
82.
83.
84.
Id.
Id.
Id.
Id.
Id.
85. Id.
at
at
at
at
at
para. 70.
para. 75.
paras. 75-76.
paras. 77, 80.
para. 69.
86. American Convention on Human Rights, art. 48(f), reprinted in Org. Am. States, Basic
and the latter should prevail. The Court interpret
48(f) within the context of the Convention and co

the Commission should attempt such friendly set
circumstances of the controversy make that option s
the Commission's sole discretion."87 The Court fo

lenge the Commission's handling of the issue.88
It should be noted that the statement of the Co
approval of the practice that the Commission is
matters are beforehand not susceptible to a friendly
mission should be free to decide on a case-by-case

attempt this procedure, which could provide a me
mission could resolve some individual petitions. I
for example, where the Commission is handling m
ances similar to the Veldsquez case, a number of cour

the government might lead it to consider the possibi
of the cases, paying compensation to the victims a

investigate the disappearances still pending.
A fourth objection raised by the government of H
exhaustion of domestic legal remedies. Although t

to the merits of the case, it should be noted that
Commission handled this problem made the deci
difficult. Since the government had not invoked the
at the earliest opportunity, it would have been s

conclude that the government had waived the obj
done, however, because the Commission agreed to
the government alleged that domestic remedies h
The issue was thus preserved and could be raised l
Furthermore, the Commission could have maintain
of the case that the exhaustion of domestic rem

because there were no effective judicial remedies
the events occurred. The absence of effective jud
element of the violation, and the Commission int
government's policies supported disappearances d
ever, this argument was belatedly used by the Com
before the Court.9o
As can be seen, three of the four objections co

had the Commission closely followed the procedu
Commission seems to have been trying to obtain a
87.
88.
89.
90.
Gallardo, supra note 50, para. 44.

Id. at para. 46.
See supra note 28.
Veldsquez, Preliminary obj., supra note 70, paras. 82, 90.
on Human Rights, art. 46(2), reprinted in Org. Am. States, B

1, at 25-53.
human rights situation in Honduras and attempting to document the exis
of a systematic practice of disappearances in that country. In takin

broader view, the procedural details of this particular case were lost.
2. Procedural Issues in the Court's Consideration of the Case
The principal procedural issue in the Court's proceedings was the proper
role of the Commission before the Court. Article 57 of the Convention states
that "[t]he Commission shall appear in all cases before the Court." This
provision is placed in Chapter VII, titled "Inter-American Court of Human
Rights," Section 1, under the heading "Organization." This strongly suggests

that the Commission is identified more as an organ of the system than as a
party before the Court.
The functions of the Commission are specified in: (1) Article 61(1) of
the Convention, and Article 51(1), which state that the Commission or a
state party may submit a case to the Court; (2) Article 63(2), which states
that the Commission may ask the Court to adopt provisional measures in
cases of extreme gravity and urgency that have not yet been submitted to
the Court; and (3) Article 64(1), which provides that the Commission, in its
capacity as an OAS organ and within its sphere of competence, may consult
the Court regarding the interpretation of the Convention or other human
rights treaties. None of these references suggests that the Commission is
meant to play the role of a "party" in cases before the Court. Likewise, many
of the provisions in the Rules of Procedure of the Court clearly distinguish
the Commission from the parties to the case.91 It seems evident that neither
the Convention nor the Rules of Procedure of the Court put the Commission
in the role of a party. Yet, the Court did assign the Commission this role in
the Velisquez case.
The Commission may have been given this role due to the manner in
which the proceedings are regulated in the Court's Rules of Procedure. The
rules set forth that there will be a written part of the procedure consisting
of a memorial, which states the complaint, and a counter-memorial, which

presents the opposing party's answer. These are followed by a reply and a
rejoinder. All four presentations are meant to bring out the issues that divide
the parties.92 This procedure reflects the assumption that there will be two
parties to the case, two states, each arguing for its version of the facts and
of the law.93 Since there was only one state involved in the Veldsquez case,
91. See Inter-Am. Ct. H.R. Rules of Procedure, arts. 27(4), 32, 33, 34(1), 38(1)-(2), reprinted
in Org. Am. States, Basic Documents, supra note 1, at 117-35.
92. Id. at art. 30.
93. However, this is almost never the case. The alleged victim of the violation is legally
nonexistent in the case, since the Convention does not accord it locus standi and the
rules of the Court do not allow for independent participation of the victim or its repre-
the Court put the Commission in the role of the m

mission's presentation was considered the memor
was asked to produce evidence to support its opin
of Honduras has violated certain provisions in the
rangement would raise considerable problems if tw
Court. It is difficult to imagine how two states an
file memorials, counter-memorials, replies, and re
In essence, the Court placed the Commission in
sentative for the complaining party. The Commiss
the lawyers of Mr. VelAsquez' relatives to gather
to see to it that the case was "won." This solution is n
but is also inappropriate for the future status of the

states it has to supervise. The Commission's task is
and for this it has to enjoy the trust of both the vic
Commission should not represent the interests of
partiality in fact but also the appearance of impartia
Commission. It must be remembered that the Com
contentious cases before the Court is only a small par
field of human rights. All the Commission's activit
loses its status as "organ" of the Convention and o
a "party" to cases before the court.
A better solution would have been to follow the ex
Court and use the Rules of Procedure to grant the vict

the status lacking under the Convention to bring the
Court.95 In this sense, the Court should follow the

in his separate opinions in the matter of Viviana
dissenting opinion in the Veldsquez case.97 Judge Piza
before the court are the state and the party entitled
by the judgment. The relatives of Mr. VelAsquez are
remedy awarded and should negotiate any agreem
duras; the Commission should not take this role.98
sentatives in the case. The only potential party is thus ano

observance of human rights in the state where the alleged
situation is highly unlikely to occur. It is most probable that
to the Court by the Commission and that the only legal part
against which the complaint has been lodged.
94. Inter-Am. Ct. H.R., Veldsquez Rodriguez Case, Judgment o
4, para. 18.
95. See Eur. Ct. H.R., Revised Rules of the Court, rules 30, 3
Council of Europe, European Convention on Human Rights
96. See Gallardo, Series A, supra note 43, Decision of 13 Nov.
of Vote by Judge Piza); Decision of 8 Sept. 1983, supra n
Opinion of Judge Piza).

97. Veldsquez, supra note 94, at 165-71 (Dissenting Opinion o
98. Id.
Another procedural issue in the Court's consideration of the case

cerns its request for the presentation of extensive evidence. Since th
mission's investigation ehded when it applied Article 42'of its regula
and assumed the facts of the complaint to be true, it appears that th
way the Court could obtain additional information was by reopenin
investigation. This delayed the case and added significant expenses
investigation of a case by the Commission and at the proper time wo
more convenient and less expensive and time-consuming.
In spite of these procedural problems, the Veldsquez case ended w

a decision of the Court declaring that Honduras had violated Article
4, 5, and 7 of the Convention and that fair compensation had to be p
the relatives of Mr. Veldsquez.99 On 21 July 1989, the Court determ
appropriate compensation to be 750.000 lempiras (approximatel
$375,000).100 Prompted by a request of the Commission and of the v

relatives, the Court also clarified its decision by stating that Hondur
obliged to prevent the practice of disappearances in the future, to invest
the disappearance of Mr. VelAsquez, and to punish those found respo

for his disappearance.1i0
IV. RECOMMENDATIONS FOR THE FUTURE
The system for handling individual and state complaints set forth in t
Convention has finally begun to operate. Many adjustments remain to
made, but this is understandable and should not be discouraging. The d
velopment of efficient human rights protections requires time and, ab
all, practice.
In particular, procedural mechanisms to deal with individual cases are
essential. In the inter-American human rights system, the Court is a welcome
and necessary addition. The importance of legally binding decisions against

states needs no emphasis. Not only do binding decisions provide authoritative interpretations of the rights in the Convention, but the Court's decisions
may have an enormous political importance as well, making it more difficult
for governments to persistently disregard human rights. The Velasquez case
shows how important it is for the system to receive and rule on individual
cases.
The usefulness of these procedures will be increasing

dividuals learn about this option. The Commission is alrea
plaints from individuals alleging isolated human rights v
99. Veldsquez, supra note 94, para. 194.
100. Inter-Am. Ct. H.R., Veldsquez Rodrfguez Case, Judgment of 21 Ju
101. Id.
where the rule of law generally prevails. Individu

the OAS human rights supervisory organs with f
political situation in many of the countries in th
the better, and this undoubtedly facilitates the proc
this date eleven states have recognized the conte
Court, and this means that there are now real possib
begin to do its share in the supervision of human r
Moreover, states may consult the Court on a v
thus fostering uniform standards throughout the r
opinions are not binding, the authority that usua
gives them a significant weight. In the case of the I
possibility is further enhanced by the broad pow

respect. The advisory opinion on the death penalt
positive impact an advisory opinion can have on s
lations.
Certain changes would allow the system to ope

The Commission should follow its procedural ru
Commission should prepare its case from a proce
ginning with a careful assessment of the admissibili
clear distinction should be made between cases ag

Convention and those against states not parties to
The Commission should also review its policy
of Article 42 of its Regulations, which up to now
releasing the Commission from the responsibility f

certain circumstances. The Commission should consider the financial implications a complete trial before the Court would have on the complainant.
When the complainant has limited resources, the Commission should undertake an in-depth investigation of the case, Article 42 notwithstanding.
The Commission should also maintain some flexibility in its use of

friendly settlements. A strict application of Article 45 ruling out friendly
settlements would not always serve the interests that the mechanism is
designed to protect, namely, those of the state, those of the victim, and the
general interests of human rights on the continent.
102. Argentina and Uruguay have now elected governments and have ratified the American
Convention and recognized the contentious jurisdiction of the Court. Brazil has an elected
government as well, and although it has not ratified the Convention, its attitude towards
human rights seems to be improving with the recently enacted Constitution in which
human rights have a prominent place. As of the elections held on 14 December 1989,
when Mr. Patricio Aylwin was chosen as President of Chile and a new Congress was
elected, Chile has returned to democratic rule. Even before elections took place, all
human rights treaties to which Chile is a party were incorporated into Article 5 of the
amended 1980 Constitution. Furthermore, the new government has pledged to ratify the
American Convention on Human Rights in the shortest time possible.
The Court generally has shown the flexibility appropriate in a cour
law. Perhaps this has been partly inspired by the context in which the case
were brought before the Court and partly by the practice of the Commiss
which has demonstrated how far an organization can go when it is serio
determined to carry out its functions as effectively as possible. Specifically
the Court should review the participation of the Commission in its p

ceedings and abandon the idea that the Commission is a party to cases
The cases handled by the Court thus far do not indicate whether a grea
deal of evidence will generally be needed in future cases. A thorough

vestigation by the Commission will eliminate the need for extensive e
dence-gathering at a later stage. Frequent application of Article 42 of
Commission's Regulations is bound to make the Court a sort of secon
instance court, to the detriment of the individuals who hope to obtain pro
redress.
All these changes presuppose that the Commission either will give more
attention to individual complaints and thus be diverted from its other activities
or that its financial resources will be substantially increased to allow it to

carry out these functions efficiently. A substantial increase in the resources
of the Commission and the Court is not likely, however, due to financial
constraints on the OAS and its members. Furthermore, even a substantial
increase would not help the Commission put an end to gross, systematic
violations of human rights.
A better solution might be to examine the system in light of the general
human rights situation on the continent. A division of functions between the
Commission and the Court may be useful. The Commission could concentrate on the problem of gross, systematic violations of human rights, work
that the Commission has proved it can carry out very well, and the Court
could handle individual and state complaints in a judicial fashion.103 This
would reduce the Commission's workload and would dramatically decrease
the amount of time and money needed to move complaints concerning
isolated violations through the system. It would therefore result in a more
efficient and effective mechanism for dealing with these problems. The
Commission could develop a procedure to handle gross, systematic violations, including a procedure to allow the Commission to consider individual
violations that took place in this context. This procedure should have a first
phase in the Commission and a second before the political bodies of the
103. The European system seems also to be arriving at this same conclusion. See Merger of
the European Commission and European Court of Human Rights, Second Seminar on
International Law and European Law at the University of Neuchatel, 14-15 March 1986,
8 Hum. Rts. L.J. 1-216 (1987).
OAS.'4 Changes would also be necessary to devise

to ensure that the Court has a manageable amou
that merit review.
The advancement of democracy on the continent
concern for human rights. This concern should

the inter-American human rights system. Wheth
the system or radically alter it, they should be dir

and efficient protection of human rights in the re
104. For a proposal for handling gross, systematic violations,

Rights, supra note 5, ch. X1.

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The Inter-American Commission on Human Rights and the Inter-American Court of

Human Rights: Reflections on a Joint Venture

HUMAN RIGHTS QUARTERLY

The Inter-American Commission on

became a two-prong system. The first prong is formed by the mechan

to handle complaints of human rights violations allegedly committed by an

The purpose of this article is to analyze the manner in which the

This section concludes with a discussion of limitations that may impede

440 HUMAN RIGHTS QUARTERLY Vol. 12

system. In Part II, I analyze the relationship bet

II. THE DEVELOPMENT OF THE INTER-AMERICAN SYSTEM

The Inter-American Commission on Human Rights was established as a

sultation of Ministers of Foreign Affairs in 1959.2 The Commission w

problems in their countries.4 Prompted by these complaints, the Commission

of human rights and a lack of cooperation on the part of the governmen

Leblanc, The Promotion and Protection of Human Rights (1977).

Am. States, Basic Documents, supra note 1, at 18-24.

1990 Inter-American Commission and Inter-American Court 441

isolated violations but to document the existence of these gross, syste

violations and to exercise pressure to improve the general condition of hu

ulatory powers, the Commission created a procedure to "take cogniza

The Commission's competence to handle individual communicatio

Commission to "examine" isolated human rights violations, with a particu

focus on certain rights.8 This procedure, however, provided many obs

for the Commission. Complaints could be handled only if domestic remed

had been exhausted, a requirement that prevented swift reactions to

governments for information. This resulted in the governments' either n

answering the Commission's requests for information or answering w

Furthermore, once the Commission had given its opinion on the c

flexibility it had, the Commission interpreted Resolution XXII as granting

Commission power to "examine" communications concerning individ

Hemisphere 137-95 (1974).

442 HUMAN RIGHTS QUARTERLY Vol. 12

violations of certain rights specified in the resolu

preserved this broader power for the purposes of ide

The procedure to "take cognizance" of commu

general human rights situation in a country. This p

the Commission's practice, had several positive

the absence of any communication. All that was n

reach the Commission that serious violations were tak

of an OAS member state.10 Second, the Commiss

could publicize its findings in order to put pressure

the governments involved.

9. See Inter-Am. Comm'n H.R., 1970 Regulations, reprinted

1990 Inter-American Commission and Inter-American Court 443

Commission looked upon its task. Apparently, the Commission viewe

A. The System Under the American Convention on Human Rights

The Convention vested the authority to supervise its observance in

and Inter-American Court of Human Rights, which was created by the C

The Inter-American Commission is composed of seven members e

in a nongovernmental capacity by the OAS General Assembly and repres

The Commission's functions include: (1) promoting human rights in all

over serious human rights problems;13 (6) handling individual complaints

handling of cases and advisory opinions before the Court.'4

y la toma de la Embajada Dominicana en Bogotd, in Human Rights in the Americas:

444 HUMAN RIGHTS QUARTERLY Vol. 12

The Inter-American Court consists of seven j

OAS,16 its judges may be nationals of any member

The Court has contentious and advisory jurisd

contentious jurisdiction, the Court settles controve

a special procedure designed to handle individual

may interpret not only the Convention but also an