ASIL RIO - The International Maritime Organization (IMO)

The Inter-American Court of Human Rights was created in 1979 as an autonomous judicial organ of the Organization of American States (OAS). Its creation came about through the entry into force of the Inter-American Convention on Human Rights on July 18, 1978.[1] Prior to the creation of the Court the institutional protection of human rights in the OAS centered on the Inter-Commission on Human Rights a body created under the OAS Charter.[2] The Inter-American Convention created the Court for the purpose of applying and interpreting the Convention and formalized the relationship between the Commission and the Court. The Court’s jurisdiction extends only to the twenty five states that have ratified the Convention whereas the Commission has a more general competence under the OAS Charter.

The Court is headquartered in San Josè, Costa Rica and may convene in any member state of OAS. The Court consists of seven judges who may be from any OAS member states. Individuals are elected to the Court by states parties to the Convention and serve a six year term subject to reelection only once. The Court has both a contentious and advisory jurisdiction. The advisory jurisdiction extends to all OAS member states as well as OAS organs who can call on the Court for an interpretation of the Convention or other human rights treaties applicable to the region. Only the Inter-American Commission on Human Rights and State parties to the Convention can submit cases to the Court. This means that all victims must rely on the Commission to take their case to the Court. The Court is able to order specific remedies when it finds a breach of the Convention along with making awards of compensation for victims. In cases of extreme gravity and urgency, the Court can also order provisional measures.

Recent Developments: Revision and Adoption of the Court’s Rules of Procedures

The Court adopted its rules of procedure during its 3rd ordinary session held from June 30 to August 9, 1980. The rules have been subsequently amended several times with the most recent amendments adopted in 2009. Two sets of changes were adopted: at the 82nd ordinary session held from January 19 to 31, 2009 and at the 85th ordinary session, November 16 to 28, 2009.[3] The amendments contain changes of a purely technical character aimed at streamlining the existing rules and procedures of the Court to bring about greater efficiency in its work. For example, the Court extended the deadline for submitting original documents from seven to twenty one days.[4]The Court also changed the procedure for taking and admitting evidence. Based on these amendments, the party that wishes to substitute the declaration of the victim or expert witness which had already been submitted, must state reasons for doing so.[5] The Court also instituted a definitive list of witnesses and expert witnesses and established a ten-day time period for each party to object to a witness or expert.[6] In addition to being represented by Agents, States have been allowed to retain Deputy Agents.[7] An interesting development with regard to documentation of hearings is the obligation of the Secretariat to audio record Court hearings and make the recording part of the case file.[8]

With these latest sets of changes to the Rules of Procedure of the Court there have also been a number of important changes affecting rights and status of the parties. Firstly, there has been the introduction of a new institution named the Inter-American Defender who, upon designation from the Court, undertakes “[…] legal representation of an alleged victim that has not designated an advocate on his or her own accord.”[9] This new institution is aimed at improving the standing of indigent victims which may significantly increase their participation before the Court. Secondly, the Court maintains the discretion to decide whether or not to discontinue the proceedings even if the party that brought the case wishes to do so.[10] This power to continue proceedings in the interests of justice, although in contrary to the request of the petitioner, might prove important in cases which deal with human rights questions of paramount importance and which might bear significant precedential character. Thirdly, the new rules have endowed the Court with mechanisms for making a decision on the adoption of preliminary measures. In the modified version of Article 26 of the Rules of Procedures, the Court is endowed with the right to request more information from the State, the Commission, beneficiaries and/or third parties before deciding on adoption of provisional measures. [11] Fourthly, Court’s move to formalize the procedure for submitting amicus curiae interventions should be underlined.[12] Although, recent cases at the Inter-American Court have witnessed burgeoning amici interventions both from domestic and international non-governmental organizations, [13] this activity has so far remained unregulated. Henceforth, amicus curiae interventions shall be sent to the Court and shall be admissible within fifteen days following a hearing. If no hearing had been appointed, amici brief should be submitted following the Order which set the deadlines for submission of final arguments and documentary evidence.[14]

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Although these amendments are interesting from multiple points of view, we shall focus only on one their particular aspect-institutionalization of amicus curiae submissions. Firstly, procedural amendments regarding admissibility of amicus curiae briefs might offer food for thoughts for scholars that study institutionalization of international organizations. Moreover, legalization of amicus procedure at yet another international organization seems to be in line with arguments about international diffusion of this institution from its Anglo-American origins. [15] Furthermore, with respect to admission of Third Party Interventions the Inter-American Court seems to be more welcoming than its European colleague. While amicus curiae briefs seem to be automatically admissible in the Inter-American system, without the Court playing a role of a gate-keeper, the European Court of Human Rights only allows amicus submissions when so requested and allowed by the President of the Court.[16] Moreover, the President shall only invite third parties to intervene if this serves the interest of ‘the proper administration of justice.’[17] In practice, this provision has allowed the European Court of Human Rights to reject admission of third party interventions on several occasions. For example, the US based organization Rights International was denied the possibility to submit an amicus intervention in the case of Ahmed Sadik v. Greece. [18] In the case of McGinley and Egan v. UK, the President of the Court granted the right to submit amicus briefs to two non-governmental organizations, Liberty and Campaign for Freedom of Information while without further justification declined this possibility for another organization- New Zealand Nuclear Test Veterans’ Association. [19] The causes and implications of admissibility decisions on third party interventions within the European human rights protection system has yet to be systematically explored. Nevertheless, it is clear that by instituting an ‘open door’ policy towards amicus submissions by NGOs, the Inter-American Court is more welcoming to civil society’s participation than its European counterpart. With the increased involvement of NGOs in international dispute-resolution concomitant to globalization,[20] this move by the Inter-American Human Rights Court seems to be both inevitable and justified.

[1] See Chapter VIII American Convention on Human Rights, Sep. 22, 1969, OAS T.S. No. 36.

[2] Article 106, Charter of the Organization of American States (as amended) Apr. 30, 1948, OAS T.S. NOS. 1-C AND 61, Article 106.

[3] Rules of Procedure of the Inter-American Court of Human Rights (hereinafter RP), available at
http://www.cidh.org/basicos/english/RulesIACourtNov2009.pdf.

[4] Article 27(1), RP, amendments of January 2009 available at http://www.cidh.org/basicos/english/basic20.RulesCourt.pdf, later article 28, available at http://www.cidh.org/basicos/english/RulesIACourtNov2009.pdf.

[5] Article 49, RP amendments of January 2009, available at http://www.cidh.org/basicos/english/basic20.RulesCourt.pdf, later remained article 49, available at http://www.cidh.org/basicos/english/RulesIACourtNov2009.pdf.

[6] Articles 52 and 53.2, ibid; later article 47 and 48, ibid.

[7] Article 22.3, ibid; later article 23.2.ibid.

[8] Article 15.4 and article 45.2, ibid; later article 15.4 and article 55.2, ibid.

[9] Article 2.11 and article 37, RP available at http://www.cidh.org/basicos/english/RulesIACourtNov2009.pdf.

[10] Article 56, amendments of January 2009, available at http://www.cidh.org/basicos/english/basic20.RulesCourt.pdf; later article 61, available at http://www.cidh.org/basicos/english/RulesIACourtNov2009.pdf.

[11] Article 26, ibid; later article 27, ibid.

[12] Article 2.3 and article 41, ibid; later articles 2.3 and article 44, ibid.

[13] Consider, for example, the case of Marcel Claude Reyes and Others v. Chile (Case no. 12.108) where five civil society organizations submitted a joint amicus brief: Open Society Justice Initiative, Article 19, Libertad de Informacion Mexico, Instituto Presa y Sociedad, Access Info Europe http://www.soros.org/initiatives/justice/focus/foi/articles_publications/articles/chile_20071219; see also amicus briefs presented by El Centro Mexicano de Derecho Ambiental (CEMDA) and la Asociación Interamericana para la Defensa del Ambiente (AIDA) in the case of Teodoro Cabrera García y Rodolfo Montiel Flores v. Mexico (Case 12.449) http://www.cemda.org.mx/artman2/uploads/1/Amicus_Curiae_CEMDA_y_AIDA__caso_Cabrera_y_Montiel_vs_Mexico_sin_firmas-1.pdf

[14] Supra note 10

[15] J. Razzaque, Changing Role of Friends of the Court in the International Courts and Tribunals, 1 Non-St.Actors &Int’L. Law 169 (2001)

[16] Art. 36, Convention for the Protection of Human Rights and Fundamental Freedoms available at http://conventions.coe.int/treaty/en/Treaties/Html/005.htm

[17] Id.

[18] Ahmet Sadik v. Greece, Appl. No. 46/1995/552/638, Judgment Nov. 15, 1996, para.4

[19] McGinley and Egan v. the UK, Appl. No. 10/1997/794/995-996, Judgment of June 9, 1998, para. 5.

[20] See, in general, The Third Force: the Rise of Transnational Civil Society (A.M. Florini ed., Carnegie Endowment for International Peace 2000) p.2; K. Anderson, “The Ottawa Convention Banning Landmines, The role of International Non-governmental Organizations and the Idea of International Civil Society,” 11 EJIL 91 (2000); C.Chinkin, “Human Rights and the Politics of Representation: Is there a Role for International Law?” in M. Byers ed. The Role of Law in International Politics: Essays in International Relations and International Law (Oxford University Press 2000); Glasius M., How Activists Shaped the Court (2003), Crimes of War Protect Magazine http://www.crimesofwar.org/icc_magazine/icc-glasius.html