However, I will not deal with the provisional measures of the
Inter-American Court of Human Rights, as I intend to narrow the
presentation to the powers of the Commission, as an interesting
reference of quasi-adjudicatory bodies on the practice of interim
measures.
cases, all interim measures, are first processed in the Commission and subsequently could end up reaching the Inter-American
Court of Human Rights. So, in order to understand the rightful
dimension of the individual complaint system in the Americas
region, we have to understand that the process of the Court is not
a different process from that of the Commission on individual
complaints. It is one system, one procedure, in which there is
a process of incremental pressure on states. And there are different moments in the processing of petitions that empower the
Commission, empower the victims, petitioners or in many cases
government officials, to do things on a national level in order to
respond to the process in the Inter-American Commission and
the Inter-American Court.
Let me now turn to explain very briefly the general framework, the general architecture of powers that inform the
Commission’s practice on the protection and promotion of
human rights. The Commission has received a very broad
mandate by the states of the Organization of American States.
The Commission has both the power to deal with general situations and deploy diplomatic and political tools to confront human
rights violations of all sorts. The Commission can use these powers to confront individual situations or more structural endemic
problems, as well as gross and systematic violations of human
rights, as it has done in the past, through several decades during
the 1970s, 1980s, and 1990s in Central America, in the Southern
Cone, and in the Andean region, where we saw the practice
by several states of massive violations of human rights.
In the framework of the individual complaints procedure in
the Inter-American System, we will explore the normative structure that informs the individual complaint procedure, specifically
the interim measures regime in the individual complaint procedure in the Inter-American System. The Commission primarily
grants precautionary measures to protect persons from grave and
imminent danger of injury of rights recognized under the American Declaration on the Rights and Duties of Man (Declaration)20
and other regional treaties. This is the normative regime that
informs individual cases and that of course is directly relevant
to the adoption of interim measures. The Charter of the Organization of American States21 sets out the legal architecture of
the OAS and it is binding on all OAS members, including the
[United States], Canada, and all Central American, Caribbean,
and South American countries—all of the region.
One of the most notable mechanisms of the Commission is
its power to perform on-site visits, a function in place since the
inception of the Commission in the 60s. In the first decade of
existence, the Commission performed several on-site visits to
the countries of the region. As you may very well know, this is a
very intense proposition for an international supervisory body to
deploy itself into the jurisdiction of one of the supervised states,
but it has settled into a very important practice of the Commission
to confront, among others, systematic violations of human rights.
Under Article 106 of the Charter, the primary function of
the Commission is to promote the observance and protection of
human rights and to serve as a consultative organ of the OAS in
these matters. The notion of protection in this provision necessarily involves the powers to receive and adjudicate human rights
cases. Every state in the Americas has accepted the competence
of the Commission to consider the individual complaints concerning alleged human rights violations that occur in their jurisdiction just by ratifying the Charter. For those states that have
not yet ratified the American Convention, the Commission will
determine whether the state violated the rights set forth in the
American Declaration. The Commission and the Inter-American
Court have both held that the Declaration, although not initially
adopted as a legally binding instrument, is now a source of legal
obligation for OAS Member States. Additionally, by approving
the Commission’s Statute, the Member States have established
the Commission’s authority to receive and decide individual
complaints alleging violations of the Declaration against those
states that are not parties to the Convention.
Another very important set of tools with respect to this general
supervisory power of the Commission is country reporting. The
Commission has reported systematically about country situations
throughout the region and regional endemic problems. The most
important report, I believe, of the Inter-American Commission,
was the Report on Terrorism and Human Rights,19 released after
September 11, 2001. This report basically collected the Commission’s prior activities from the previous decades throughout
the region—regimes arguing that they were combating the threat
from terrorist groups and adopting measures that clearly violated
human rights law. The Commission was very quick in introducing this general report on terrorism and human rights to engage
in a dialogue with countries, many of them, including the [United
States], engaged in practices that, in my opinion, clearly violated
established international human rights law.
Individual Complaints and Interim Measures
There are other mechanisms, such as rapporteurships, interim
measures, and cases regarding torture, as well as other practices
such as press releases. But I want to now turn to the adjudicatory
dimension, which of course takes us into the realm of interim
measures. The adjudicatory dimension of the Inter-American
Commission must be understood again in this architecture by
which the Commission holds the key of access to individual
complaints in the Inter-American System. And it means that all
Furthermore, the Commission has read the Declaration as an
evolving source of law, noting that its application is consistent
with the practice of the Inter-American Court of Human Rights.
Therefore, the Declaration serves as a parallel to the American
Convention for those states that have not ratified the American
Convention.
15
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