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The Practice and Procedure of the Inter-American Court of Human Rights, 2nd Edition

The Practice and Procedure of the Inter-American Court of Human Rights, 2nd Edition

Author: Jo M. Pasqualucci
Publisher: Cambridge University Press
ISBN: 9781107006584
Published In: October 2012
Format: Hardback , 454 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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A thoroughly revised second edition that incorporates the major changes made in the procedures and practice of the Inter-American Court. She analyzes all aspects of the Court's advisory jurisdiction, contentious jurisdiction and provisional measures orders through 2011. She also compares the practice and procedure of the Inter-American Court with that of the European Court of Human Rights, the Permanent Court of Justice and the United Nations Human Rights Committee. She evaluates changes in the Rules of Procedure of the Inter-American Court that entered into force on January 1, 2010, and which substantially change the role of the Inter-American Commission in contentious cases before the Court. She also evaluates the challenges and means of State compliance with the Court's innovative reparations orders. Featuring revisions to every chapter to address the major changes, this book will provide an important and updated resource for scholars, practitioners and students of international human rights law.

• Up to date to include the major changes in the Court's procedures and the Commission's role in contentious cases before the Court

• Contains a comprehensive chapter on the innovative reparations ordered by the Inter-American Court

• Includes a chapter on State compliance with Court decisions and analyzes the difficulties that State authorities may confront in trying to implement the Inter-American Court's judgments

Foreword by Thomas Buergenthal	xv
Preface to the Second Edition	xvii
Preface	xxi
Acknowledgments	xxv
Table of Cases	xxvii
Table of Articles of the American Convention on Human Rights	xliii
Table of Rules of Procedure of the Inter-American Court of Human Rights	xlv
Table of Rules of Procedure of the Inter-American Commission on Human Rights	xlvii
Table of Other Legal Instruments and Documents	xlix
1 Introduction	1
The Inter-American Human Rights System	2
A Concise History of the Inter-American Court	6
Composition of the Court	8
Overview of Jurisdiction	10
The Court's Interpretation of the American Convention	12
An Illustrative Contentious Case	14
Facts	14
Procedures before the Commission	15
Jurisdiction of the Court	15
Initial Procedures before the Court	15
Provisional Measures	16
Partial Acceptance of International Responsibility	16
Proceedings on the Merits	16
Decision on the Merits	16
Reparations	17
State Compliance	17
Past Procedural Advances Made by the Court and the Commission	17
More Recent Procedural Changes	19
Limitations Influencing the Effectiveness of the Inter-American System	24
Inadequate Funding of the Court and the Commission	24
Lack of Universality	26
Domestic Implementation	27
Failure of the Political Organs to Exert Political Pressure on States	28
Quality Control of Judges Elected to the Court	30
Continuting Proposals to Alter the Inter-American System	32
Conclusion	34
Part I The Advisory Jurisdiction of the Inter-American Court
2 Advisory Practice and Procedure	37
Character and Scope of the Inter-American Court's Advisory Jurisdiction	38
Jurisdiction Ratione Personae (Standing)	40
Standing of Member States	41
Standing of OAS Organs	42
Jurisdiction Ratione Materiae (Subject Matter Jurisdiction)	46
Jurisdiction to Issue Advisory Opinions Interpreting the American Convention	47
Interpretation of the Substantive Provisions of the American Convention	48
Interpretation of the Procedural Provisions of the American Convention	52
Jurisdiction to Issue Advisory Opinions Interpreting Other Treaties	54
Other Inter-American Treaties	56
Nonregional Treaties	57
Jurisdiction to Issue Advisory Opinions on the Compatibility of Domestic Laws of a Member State	57
Jurisdiction Ratione Temporis Following the Attempted Withdrawal of a Request for an Advisory Opinion	59
Advisory Jurisdiction Subject to the Court's Discretion	59
Discretion to Exercise Advisory Jurisdiction over a Case in Dispute between Two States or between a State and an International Organization	62
Discretion to Exercise Advisory Jurisdiction over a Dispute that is before Another International Body	65
Court Procedures Applicable to an Advisory Opinion Request	66
Requirements of the Request	68
Admissibility	69
Notification of the Submission	70
Written Proceedings	71
Amicus Briefs	71
Preliminary Objections to an Advisory Request	73
Oral Proceedings	74
Content, Delivery, and Publication of Advisory Opinions	76
Domestic and Institutional Implementation of the Court's Advisory Opinions	77
Conclusion	80
Part II The Contentious Jurisdiction of the Inter-American Court of Human Rights
3 Proceedings before the Inter-American Commission	83
Initial Processing of Petitions	85
Technical Informational Requirements	87
Six-Month Rule	88
Petition Not Substantially the Same as One Previously Studied or Pending before Another International Body	89
Exhaustion of Domestic Remedies	92
Domestic Remedies Must Be Available, Adequate, Appropriate, and Effective	94
Exceptions to the Exhaustion of Domestic Remedies	97
Decision on Admissibility	98
Fact-Finding before the Commission	101
Hearings before the Commission Are Not Required	101
On-Site Investigations in the State Are Not Required	103
Presumption of the Truth of the Allegations in the Petition	105
Friendly Settlement	106
Withdrawal and Archiving of Petitions and Cases	109
Reporting Requirements	110
The Commission's Decision to Submit a Case to the Court	111
Deadline for Submission of a Case to the Court	112
Extension of the Time Period for Submission of a Case	114
Interstate Cases	116
4 Jurisdiction of the Inter-American Court	117
Compétence de la compétence	117
Scope of the Jurisdiction of the Inter-American Court	119
Manner in which a State May Accept the Jurisdiction of the Inter-American Court	120
Jurisdiction Ratione Materiae	122
The “Fourth Instance Formula”	125
Manifestly Groundless Petitions	128
State Reservations Modifying the Ratione Materiae of the Convention	128
Jurisdiction Ratione Personae	130
Jurisdiction Ratione Personae: Passive Legitimation	130
Jurisdiction Ratione Personae: Active Legitimation	131
Jurisdiction Ratione Personae: Standing to File a Complaint with the Commission	131
Jurisdiction Ratione Personae to Consider Petitions Filed by Any Person or Group of Persons	132
Jurisdiction Ratione Personae to Consider Concrete Cases	133
Jurisdiction Ratione Personae to Consider Cases in which the Victim Is an Individual or Shareholder in a Business Entity	135
Jurisdiction Ratione Personae to Consider State-Filed Complaints	136
Jurisdiction Ratione Temporis	137
Lack of Jurisdiction Ratione Temporis If the Violation Took Place before the State Accepted the Jurisdiction of the Court	138
Jurisdiction Ratione Temporis over Continuing Violations	138
Forced Disappearance as a Continuing Violation	139
The Failure to Investigate, Prosecute, and Punish May Constitute a Continuing Violation	139
Violation of Property Rights May be a Continuing Violation	141
Continuing Violations of Other Treaties	141
State Acceptance of Jurisdiction with a Temporal Condition	142
Jurisdiction Ratione Temporis over States that Denounce the Convention	143
Jurisdiction Ratione Temporis over States that Attempt to Withdraw Acceptance of the Jurisdiction of the Court	145
Jurisdiction Ratione Loci	146
Jurisdiction Ratione Loci Not Limited to a State's Physical Territory	147
Limitation of Jurisdiction Ratione Loci Must Be Expressly Permitted by Treaty	148
5 Proceedings on the Merits: Fact-Finding and Attribution of State Responsibility	150
The Scope of the Court's Fact-Finding Powers	151
Submission of Evidence	152
The Court's Authority to Admit Evidence on Its Own Motion	153
Expert Witnesses	154
Declarants	156
Amicus Curiae	158
Oral Proceedings	159
Structure of Hearings	161
Testimonial Evidence	163
Objections to Witnesses and Alleged Victims	164
Documentary Evidence	165
Demonstrative Evidence	168
Presumptions and Circumstantial Evidence	168
Circumstantial Evidence	168
Presumptions	169
Burden of Proof	171
Standard of Proof	173
Judicial Notice	174
Written Closing Arguments	175
Discontinuance, Acquiescence, and Friendly Settlement	175
Deliberations and Judgment	178
Interpretation of Judgment	179
Revision of Judgment on the Basis of Newly Discovered Facts or Fraudulent Evidence	181
Attribution of State Responsibility	182
Failure to Investigate and Punish Violations by Persons Not Acting on Behalf of the State	184
6 Victim Reparations	188
Scope of the Inter-American Court's Authority to Order Reparations	189
The Goal of Full Restitution (restitutio in integrum)	190
The Injured Party	193
Types of Reparations Ordered by the Inter-American Court	196
Restitution	196
Restoration of Liberty to Persons Who Were Illegally Detained	197
The Return of Illegally Seized Property	197
Protection for Displaced Victims to Return to Their Homes	198
Reinstatement of Employment	198
Expungement of Public Records	199
Return, Demarcation, and Award of Title to the Ancestral Lands of Indigenous Communities	201
Miscellaneous Measures of Restitution to Restore the Status Quo Ante	201
Rehabilitation	202
Satisfaction	204
Public Act to Acknowledge Responsibility	204
State Apology	205
Publication or Dissemination of the Judgment of the Inter-American Court	205
Measures to Commemorate the Victims or the Events	206
Locating and Identifying the Victims	207
Educational Expenses and Training	208
Refrain from Execution	208
Community-Based Reparations	209
Miscellaneous Measures of Satisfaction	212
Guarantees of Nonrepetition	212
Capacity Building	212
Legislative Reform	214
Amend, Annul, or Repeal Incompatible Domestic Laws	214
Declaration that Domestic Law Lacks Legal Effect	217
Authority to Rule after the State Accepts International Responsibility	219
No Ruling If the Domestic Law Is No Longer in Effect	220
Court Order to Annul or Execute a Domestic Judgment or Ruling	220
Adopting Other Measures to Guarantee the Nonrepetition of Violations	222
Obligation to Investigate, Prosecute, and Punish	223
Investigation	224
Prosecution and Punishment	226
Judgment per se a Form of Reparations	228
Compensation	229
Pecuniary Damages	229
Loss of Earnings and Benefits	230
Beneficiaries of Lost Earnings of Deceased Victims	233
Consequential Damages	234
Nonpecuniary Damages	235
Determination of Amount of Nonpecuniary Damages	238
Beneficiaries of Deceased or Disappeared Victim's Nonpecuniary Damages	239
Costs and Expenses	240
Attorneys Fees	241
Costs and Expenses Based in Equity	243
Terms of Payment	243
Legal Assistance Fund	244
No Reparations for Injury to the Victim's Life Plan	245
Reparations Agreements between States and Victims	246
Method of Compliance	247
7 Provisional Measures	251
Statutory Authority	253
Statutory Requirements	257
Extreme Gravity	257
Urgency	258
Irreparable Damage	259
Irreparable Damage to Persons	263
Prima Facie Situation	265
Inherent Authority to Order Provisional Measures	267
Precautionary Measures Ordered by the Commission	268
Entities Authorized to Request Provisional Measures	269
Temporal Jurisdiction to Order Provisional Measures	270
Expedited Procedures	272
The President's Adoption of Urgent Measures When the Court Is Not in Session	272
Plenary Court's Consideration of Provisional Measures Requests	273
Discretion to Order Provisional Measures	274
Court Orders	275
Beneficiaries of Provisional Measures	276
Witnesses before Domestic and Inter-American Authorities	276
Human Rights Advocates and Organizations	278
Persons Deprived of Their Freedom	279
Persons on Death Row	280
Persons Dislocated during Internal Armed Conflicts	281
Indigenous Communities	282
Means of Protection	283
Maintenance of Provisional Measures	285
Lifting (Terminating) Provisional Measures	287
Binding Nature of Provisional Measures	291
Monitoring Provisional Measures	293
Domestic Implementation of Provisional Measures	294
Conclusion	297
8 State Compliance with Court-Ordered Reparations	299
Conventionality Control	300
Monitoring State Compliance with Judgments	303
State Acceptance of International Responsibility	306
Voluntary Apology and Dissemination of the Truth	307
Anticipatory Remedial State Action	308
Implementation of Inter-American Court Orders to Pay Compensatory Damages	309
Prior Payment Authorized by States	310
Implementation of Measures of Restitution	311
Implementation of Measures of Rehabilitation	314
Implementation of Measures of Satisfaction	315
Implementation of Measures of Nonrepetition	320
Capacitation Programs	320
Legislative Reform	321
Annul or Execute Domestic Court Rulings	325
Implementation of Orders to Investigate, Prosecute, and Punish	325
Alternative Forms of Reparations	328
Efforts to Improve Compliance with Court Orders	330
Conclusion	334
Appendix 1: American Convention on Human Rights	335
Appendix 2: Rules of Procedure of the Inter-American Court of Human Rights	361
Bibliography	389
Index	401

'A valuable review of all relevant elements of the Court's practice, including issues relating to admissibility, fact finding, provisional measures, oral and written proceedings, scope of judgments, and so on. There is a great deal of material in these pages that scholars will find of value in seeking to understand the Court's jurisprudence and how it has evolved over the years. The book contains important insights about the Court's methodology and its transformation of the American Convention into an effective tool for the protection of human rights in the Americas, as well as various examples of the Court's contribution to international human rights law in general. No one trying to understand the manner in which the Court functions can afford to be without this book.' Thomas Buergenthal, former Judge, International Court of Justice, and Inter-American Court of Human Rights

'A significant contribution to the study of the Inter-American human rights system and international human rights law more generally … Throughout the book the discussion of each particular point is extremely detailed, providing full reference to relevant case law, rules, and treaty provisions. Even though the focus is on procedure, the extensive discussion of case law provides a good idea of analysis on substantive issues, demonstrating the intimate connection between procedure and substance in ensuring the protection of human rights.' Richard Burchill, University of Hull

Review of the first edition: 'This ambitious and comprehensive book provides a first-class reference source and an important guide for scholars, practitioners, and human rights activists, as well as persons not familiar with the complexity of the inter-American human rights system.' Nordic Journal of Human Rights

'Pasqualucci's thorough, clearly written, well-organized survey and critique of how contentious cases and advisory opinions proceed before the Court is an indispensable guide for practitioners as well as a valuable contribution to international legal scholarship. She regularly compares the practice of the Court to that of other international courts and bodies, enriching her analysis by an understanding of the global institutional framework of which the Court has become an innovative and transformational part.' Douglass Cassel, American Journal of International Law