By Brianna Gorence
The time I have spent this summer at the Inter-American Court of Human Rights, the regional human rights Court for the Americas, has lead me to contemplate the differences in the functioning of the Inter-American Human Rights System and the other regional human rights systems. Since the African Court of Human and People’s Rights is the youngest of the three regional juridical human rights systems—only becoming fully operational in 2009, with its first judgment on the merits of a case in 2013[1]—for the purposes of this blog, I will only consider the similarities and differences between the European Human Rights System and the Inter-American Human Rights System.
As independent instruments of regional organizations,[2] the substantive rights deliberated at the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) are quite similar.[3] Protected in the Conventions and Protocols of both instruments are the right to life, (Article 4 ACHR; Article 2 ECHR), the prohibition on torture (Article 5 ACHR; Article 3 ECHR), the prohibition on slavery (Article 6 ACHR; Article 4 ECHR), the right to liberty and security of the person (Article 7 ACHR; Article 5 ECHR), the right to a fair trial and judicial guarantees (Article 8 ACHR; Article 6 ECHR), the principle of nullum pena sine lege (Article 9 ACHR; Article 7 ECHR), respect of private and family life (Article 11 ACHR; Article 8 ECHR), freedom of thought, conscience and religion (Article 12 ACHR; Article 10 ECHR), freedom of expression (Article 13 ACHR; Article 10 ECHR) freedom of reunion and association (Article 15 and 16 ACHR; Article 11 ECHR), the right to matrimony (Article 17 ACHR; Article 12 ECHR), the right to an effective recourse (Article 25 ACHR; Article 13 ECHR), the prohibition of discrimination and equality before the law (Articles 1(1) and 24 ACHR; Article 14 ECHR and Protocol 12), the right to property, (Article 21 ACHR; Article 1 Protocol 11), and freedom of circulation and residence (Article 22, Protocol IV)… already a long list among others.
Although there may be differences in the rights covered in each Court,[4] the additional protocols continue to fill the gaps in the jurisdiction of the Courts.[5] Nonetheless, subtle differences remain: capital punishment is definitively prohibited in the European system—even during war—through its Protocol 13, whereas, although the right to life, protected in article 4 of the ACHR has been interpreted strictly by the Court, the Inter-American Protocol to Abolish the Death Penalty does not go as far as an outright prohibition.[6] What does this mean? Does this make an enormous difference? In the larger scheme of things, precedents continue to be made and each Court’s jurisprudence continues to evolve. In the smaller scale, a disparity in the rights recognized could make the difference between a violation interpreted by the Court and no violation.
Other differences between the Courts include the ECtHR’s doctrine of the margin of appreciation which allows the Tribunal to permit a degree of discretion in States’ implementation of the ECHR and its Protocols.[7] The IACtHR does not have such a doctrine. The result of this is that in the Inter-American system, each State is held to the same standard, regardless of their divergent political, cultural and legal traditions. Given the particularities of each society and the specific violations in question, such a strict standard at the IACtHR could be criticized as overly restrictive, while on the other hand, a large degree of derogation could estrange human rights from the principle of equality before the (international) law regardless of their State, national origin, ethnicity, race, gender, religion, etc.
Another difference between the two institutions is the way in which Court sessions are held. At the IACtHR there are public hearings and private hearings, normally held with all seven judges. These hearings are not held on a permanent basis. At the ECtHR, the Court is permanent and does not have the filter of the Commission to limit the entry of complaints. Due to the higher volume of cases heard, the ECtHR has a single-judge formation, committees of three judges, Chambers of seven judges and a Grand Chamber of seventeen judges (Article 26 ECHR). Most notably, unlike at the IACtHR, at the ECtHR the hearings are only for allegations and thus there are no witnesses or experts that appear before the Court.
While both Courts can order reparations, it is pertinent to recall that the ECtHR normally only provides “Just satisfaction”; only in recent cases has it ordered reparation measures other than monetary reparations. Furthermore, while the IACtHR is more widely recognized for its ability to take specific injunctive measures to ensure the temporary protection of petitioners, the ECtHR can also take interim measures in accordance with Rule 39 of the Rules of the Court where there is an “imminent risk of irreparable harm.”[8]
Finally, the IACtHR has issued 22 advisory opinions[9] on a wide variety of issues to date, including rights and guarantees of children in the context of migration (Advisory Opinion No. 21; Advisory Opinion no. 17), due process (Advisory Opinion No. 19) and judicial guarantees in states of emergency (Advisory Opinion No. 9, Advisory Opinion No. 8). Drawing a stark contrast, the ECtHR has not issued a single advisory opinion. The advisory opinions issued by the IACtHR have allowed the Member States of the OAS to consult the Court on the interpretation of the regional Human Rights Treaties (64.1 ACHR), for the Court to express its opinion on domestic legislation (64.2 ACHR) as well as to further develop its stance on a number of important issues.
The internship with the IACtHR has been most valuable because it has allowed me to see an institution that I had previously idealized without its pedestal—to see the inside of the Court, the people that make it function to thus come to a position where I could look at the practical differences between the European Human Rights System and the Inter-American Human Rights System. The implications that the differences between the two institutions have is something that I will continue to ponder over. Nevertheless, despite their differences (and the criticisms one can make of them as institutions) I believe they hold an invaluable worth for the advancement of the relationship between the State and its citizens and offer optimism for the establishment of precedent for the future.
[1] “In First Judgment on the Merits, African Court Finds Tanzania Violated Citizens’ Right to Participate in Democracy by Prohibiting Independent Candidates”, International Justice Resource Center, July 5, 2013.
[2] The two regional organizations are: The Organization of American States and The Council of Europe.
[3] See the American Convention on Human Rights (ACHR) and the Convention for Protection of Human Rights and Fundamental Freedoms, the European Convention on Human Rights (ECHR).
[4] See the perspective expressed on the right to juridical personality (Article 3 ACHR), the right of reply (Article 14 ACHR), the right to a name (Article 18 ACHR), the rights of the child (Article 19 ACHR), the right to nationality (Article 20 ACHR), political rights (Article 23 ACHR), and the right to progressive development of the economic, social and cultural rights (Article 26 ACHR) in the introductory chapters of Jurisprudencia Regional comparada de Derechos Humanos by Fabio Salvioli, Claudio Zanghi and Diana Di Peitro, 2013.
[5] Such as the right to education covered in the European Human Rights System Protocol I and in the Inter-American System in article 13 of the Protocol of San Salvador, although the latter is not yet in force.
[6] See, for example, the Case of Dacosta Cadogan v. Barbados, Judgment of September 24, 2009, paragraph 47: “In interpreting the issue of death penalty in general, the Court has observed that Article 4(2) of the Convention allows for the deprivation of the right to life by the imposition of the death penalty in those countries that have not abolished it. That is, capital punishment is not per se incompatible with or prohibited by the American Convention. However, the Convention has set a number of strict limitations to the imposition of capital punishment. First, the imposition of the death penalty must be limited to the most serious common crimes not related to political offenses. Second, the sentence must be individualized in conformity with the characteristics of the crime, as well as the participation and degree of culpability of the accused. Finally, the imposition of this sanction is subject to certain procedural guarantees, and compliance therewith must be strictly observed and reviewed”. See also “The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition”, OEA/Ser.L/V/II Doc. 68, 31 December 2011, < https://www.oas.org/en/iachr/docs/pdf/deathpenalty.pdf>.
[7] See also “An overview of the Strasbourg Court’s margin of appreciation doctrine”, Open Society Foundations, April 2012, <https://www.opensocietyfoundations.org/sites/default/files/echr-reform-margin-of-appreciation.pdf>.
[8] Factsheet – Interim measures, European Court of Human Rights Press Unit, <http://www.echr.coe.int/Documents/FS_Interim_measures_ENG.pdf>
[9] See Advisory Opinions, <http://www.corteidh.or.cr/cf/Jurisprudencia2/busqueda_opiniones_consultivas.cfm?lang=en>.