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Protective Measures in the Inter-American Human Rights System
Isabela Piacentini de Andrade [1]
The Inter-American human rights system was created by the Organization of American States (OAS) to promote and protect human rights in the Americas. It relies in two main instruments: the American Declaration of the Rights and Duties of the Man (1948) and the American Convention of Human Rights (1969). The system comprises two bodies: the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). All OAS Member States [2] are bound to the respect of the Declaration; the compliance with the American Convention, on the other hand, is only an obligation to the States Parties to the Convention. [3] Among those, some accepted the jurisdiction of the Inter-American Court of Human Rights.
Individuals cannot submit complaints to the Court, only to the Commission. If the State does not comply with its decision, the Commission can submit the case to the Court. The Commission is the therefore the body first confronted with the individual complaints, examining the requests at the first place. That is generally also the case with regard to protective measures.
Protective measures are granted in serious and urgent situations to prevent irreparable harm to persons [4]; they are called precautionary measures when issued by the Commission, and provisional measures when ordered by the Court. The Commission may request a State to adopt precautionary measures on its own initiative or at the request of individuals, even if there is no pending petition or case before the Commission. [5] The Inter-American Court can also order provisional measures motu proprio or at the request of the victim [6], if the case was already submitted to the Court by the Commission. If the Court was not seised of the case, it may nonetheless order provisional measures at the request of the Commission. [7]
[1] Lawyer, PhD in International Law (Université Paris II)
[2] The Organization of American States has 35 Member States: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba (excluded from participation since 1962), Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, United States and Venezuela.
[3] As of June 2018, 23 of the 35 OAS’s Member States have ratified the American Convention: Argentina, Barbados,
Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay (Trinidad & Tobago and Venezuela had ratified the Convention but have later denounced it).
[4] Article 63§2 of the American Convention; article 25 of the amended Rules of Procedure of the Commission (2013) and article 27 of the Rules of Procedure of the Inter-American Court of Human Rights.
[5] Article 25 of the amended Rules of Procedure of the Inter-American Commission (2013) states:
“Article 25. Precautionary Measures
1. In accordance with Articles 106 of the Charter of the Organization of American States, 41.b of the American Convention on Human Rights, 18.b of the Statute of the Commission and XIII of the American Convention on Forced Disappearance of Persons, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures. Such measures, whether related to a petition or not, shall concern serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition or case before the organs of the inter-American system.
2. For the purpose of taking the decision referred to in paragraph 1, the Commission shall consider that:
a. “serious situation” refers to a grave impact that an action or omission can have on a protected right or on the eventual effect of a pending decision in a case or petition before the organs of the inter-American system;
b. “urgent situation” refers to risk or threat that is imminent and can materialize, thus requiring immediate preventive or protective action; and
c. “irreparable harm” refers to injury to rights which, due to their nature, would not be susceptible to reparation, restoration or adequate compensation.
3. Precautionary measures may protect persons or groups of persons, as long as the beneficiary or beneficiaries may be determined or determinable through their geographic location or membership in or association with a group, people, community or organization.
[6] Article 27§3 of the Rules of Procedure of the Inter-American Court (2009) states that: «In contentious cases before the Court, victims or alleged victims, or their representatives, may submit to it a request for provisional measures, which must be related to the subject matter of the case.
[7] Article 63§2 of the American Convention and article 27 of the Court’s Rules of Procedure (2009).
