Volume 43 | Number 2 Spring 2008
Upholding Human Rights in the Hemisphere: Casting Down Impunity Through the Inter-American Court of Human Rights
2. The Interplay of State Influence on the Court with External Factors Out of State Control
As discussed by Koh, the increasing interpenetration of international systems and domestic ones will have an effect on state compliance.384 As this interpenetration occurs among countries within the Inter-American System, pressure on states to comply with IACHR decisions will likely grow. Yet while states cannot control this international pressure, they have the ultimate decision-making capability over whether to ratify the Convention and the Court’s jurisdiction. Moreover, states can choose whether to comply with a decision of the Court in its entirety, as the Court intends. However, more frequently, states comply with damages but neglect Court-ordered investigation of individuals.
Nonetheless, the steady interpenetration of international and domestic law may well lead to an erosion of national sovereignty, eventually limiting the states’ ability to pick and choose how much of the Court’s decisions with which to comply. One example of this dynamic occurs when the Court is asked to enforce and interpret state laws. In the Gangaram Panday case, for example, the Court found by inference that Suriname illegally and arbitrarily detained the victim under Suriname’s Constitution and other applicable laws of the State.385
Although state sovereignty remains strong in the Western Hemisphere, there is little question that states have relinquished some of their authority, and that they have obligations under the Convention that cannot be easily altered if they are to remain in compliance with the Convention. Consider Trinidad and Tobago’s withdrawal from the Court’s jurisdiction effective immediately, in contradiction to the American Convention’s requirement of one-year advance notice.386 The pressure of the OAS community ultimately did lead to Trinidad and Tobago’s reacceptance of the Court’s jurisdiction, albeit with reservations.
Finally, the rapid formation of treaty-based rules and customary law will continue to provide constraints through which the state must determine its level of compliance.387 Most importantly, state interest in complying with the American Convention will limit the ability to disregard the decisions of the Court. But while states still have the authority to determine whether they will ratify and comply with treaties, including their continuing acceptance of the American Convention, customary law remains less within the control of specific nations. If a customary norm for human rights protection in a specific context lends support for an IACHR decision, there would likely be international pressure on the state to comply.
Clearly, self-interest plays a substantial role when a nation considers its response to external pressure of this kind. As the potential for external pressure mounts, many states begin to view compliance with human rights protection as being in their own best interests. Self-interest, of course, carries through to areas other than compliance with judgments. For example, it could also play a role in the state’s willingness to engage in independent fact-finding.
Moreover, if human rights compliance is seen as being within the best interests of the state because it improves international status, then the state may engage in activity such as that described by the managerial model—facilitating discourse among the parties, the treaty organization, and the public. In Aloeboetoe et al., for example, Suriname not only admitted responsibility with regard to violation of Articles 1(1)–(2), 4(1), 5(1)–(2), 7(1)–(3), and 25 of the American Convention,388 but it also complied fully, albeit over the course of several years, with the Court’s judgment. Suriname’s compliance is best explained by self-interest. Because Suriname does not occupy a prominent place in world affairs, a forward-looking government might attempt to change this. Suriname—perhaps realizing that accepting the Court’s jurisdiction would lend legitimacy to their regime, and that compliance with the judgment would advance their interests—may have complied with the decision to improve their international standing. Behind this move can be seen the need to be accepted in the global economy, a significant motivating factor for states.
Finally, temporal proximity to the human rights violation might also affect the likelihood of compliance. A state may be less likely to view compliance as advancing its best interests. Given any perceived threat to their political situation, a state might cooperate as little as possible. Such reluctance to cooperate could increase the atmosphere of impunity for perpetrators of human rights violations. Moreover, unwillingness by states to cooperate would dramatically slow the process of fact-finding and the fulfillment of other requests by the Court.
Ironically, this delay in processing cases might actually help compliance in this respect. The longer the time period between the violations and the decision by the Court, the less likely it would be that those responsible for the violations would still hold the reins of power.
3. The Perception of Fairness and Legitimacy in the Court’s Decisions
As pointed out by Helfer-Slaughter, the communication by, as well as the actual fairness and legitimacy of the Court is largely within the Court’s control.389 The Court must engage in quality legal reasoning for a decision to be legitimate and respected. In addition to rational, logical application of the relevant law that does not jettison common sense or public values, the Court must ensure the quality of organization and flow in its decisions. Only by doing so will it make its decisions accessible to those who must comply.
Similarly, the Court should evaluate the overall structure and flow of its judicial system as a whole. For example, the Court and the Commission must improve coordination in their common goal to protect human rights in the Americas.390 The Court and the Commission have frequently acted unilaterally to modify internal activities, such as procedural changes, which have worked to the detriment of the other body.391 The fact that the headquarters for each body are located in two different places also contributes to the lack of coordination between them.392 The Commission is situated in Washington, D.C., while the Court is in San José, Costa Rica. One solution might to locate both headquarters in San José. This would address both the need for coordination as well as situating the bodies centrally among the countries that have fully engaged in the Inter-American system of human rights.393
Moreover, the two-tiered system that requires the Commission to hear cases before referring them to the Court is time-consuming and may increase state impunity. The delay may limit the responses available to the Court and prevent the Court from effectively protecting human rights.394 For instance, in cases involving illegally imprisoned individuals, the Court may take too long to hear the case and subsequently order the state to release the detainee—after the imprisoned person has served out a sentence as long as the delay in the Inter-American system.
Rescia and Seitles also mention the time delay for cases to proceed through the Court: “[t]he delay to resolve the demands of human rights abuses, the duplicity of processes, the loss of evidence, and the anguish of having to relive often horrific events after eight or ten years contradicts the purpose of a system which seeks to emotionally and economically compensate victims.”395
Because the Commission is not an international tribunal, the process does not fully have judicial characteristics. Thus, when a case proceeds before the Court, the Court must make legal decisions without considering the findings of the Commission, which results in duplicative consideration of the evidence.396 Rescia and Seitles suggest a procedural change that allows the Court to accept some of the Commission’s findings as undisputed. If the Court contemplated this route, it would have also had to safeguard due process and not shortchange either side from proffering important evidence in Court that it could not, or did not, present before the Commission.
As a more extreme option, the Commission could be deemed the sole finder of fact,397 somewhat like a trial court in the U.S. court system. Such a change, however, must be balanced against the possibility of decreased overall credibility of the Court. As a possible middle-ground, Rescia and Seitles suggest that if the Commission were to respect “due process, the right to a defense, and all the rights of the parties, and the State Party [did] not object to its decision, the Commission’s decision would achieve a presumption of validity.”398 Fundamentally, the alleged victim should not be subject to excessive redundancies in international processes, both of which obtain the same information and force the victim to relive tragic memories. Thus, the challenge must be to decrease such painful redundancy while not compromising a full, fair judicial process.
IV. Conclusion: Future of the Court
The major contribution of the IACHR to the fall of impunity in this hemisphere happens to the extent of state compliance with its judgments. States have complied with the judgments of the Inter-American Court of Human Rights for a number of reasons, including: the member states’ role in the composition, fact-finding, and support of the Court, the fairness and legitimacy of decisions by the Court, the self-interest of the state, the gradual internalization of the standards enunciated by the Convention, and the progression of a culture with greater respect for human rights.
Notwithstanding the existence of very few mechanisms for enforcing its judgments, the Inter-American Court of Human Rights has enjoyed substantial compliance with its orders for reparations. It has also succeeded in modifying domestic law to comply with the Convention. However, the IACHR should still strive to improve compliance among states in prosecuting culpable individuals through domestic systems. As such compliance increases, the grip of impunity will weaken.
As the Court waxes in support, authority, caseload, and legitimacy, it will continue to play a more substantial role in upholding human rights in the hemisphere. One would wish that perpetrators of heinous human rights violations—whether of inhumane torture, improper incarceration, horrific homicides, or diabolical “disappearances”—increasingly will find justice knocking on their doors through the Inter-American Court of Human Rights.
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Footnotes
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