Perspectives on the Inter-American Court of Human Rights and the European Court of Human Rights

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>.

The Functioning of the Inter-American Human Rights System

2016 Gorence BriannaBy Brianna Gorence

My internship at the Inter-American Court of Human Rights (IACtHR) in San José, Costa Rica, began on May 24, 2016. For years I have admired the work that the Court does and, naturally, was ecstatic to be accepted in one of the three groups of visiting professionals and interns that support the Secretariat year-round at the Court.

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The visiting professionals and interns for the Summer of 2016.

My work at the Court consists in doing investigations on human rights issues, writing reports and generally supporting the senior and junior attorneys that I work for in the Secretariat. From June 20th to June 24th, the Court held its 54th Extraordinary Session and I was able to sit in on Andrade Salmón vs. Bolivia, a case alleging the mismanagement of public financial resources and the illegal and arbitrary detention of a mayor in La Paz, and Vereda La Esperanza vs. Colombia, a case alleging the forced disappearance of 14 persons in 1996 in El Carmen de Viboral, Antioquia, by paramilitary groups with alleged support and acquiescence of state agents.

My internship thus far at the Court has been very rewarding. Despite the enthusiasm I have felt about my personal experience, I want to explain the bigger picture—how the visiting professionals and interns fit into the larger scheme of the inter-American system for the protection of human rights. I want to respond to questions such as, how does the Inter-American system of human rights work, or, how does one bring a complaint before the Court?

To start at the beginning, the IACtHR, an organ of the Organization of American States (OAS), was created by the American Convention on Human Rights (ACHR) in 1969 and officially commenced operations in 1979 (after the ACHR entered into force in 1978). The Court celebrates four ordinary sessions per year, plus the extraordinary sessions when convoked by the president or the majority of the judges. The Court is composed of seven judges, all members of the OAS (Article 52 ACHR) and a Secretariat, whose mandate is to assist the judges in their functions. The Secretariat is composed of fewer than 30 attorneys and is supported by the indispensable work of the visiting professionals and interns.

To bring a case to the Court, the potential victim must lodge a complaint with the Commission (which was founded in 1959 and began its first of session in 1960). The Commission is composed of 7 commissioners, including a president and vice-president (their functions are defined by Article 41 ACHR). The Commission, unlike the Court, can examine potential violations of the American Declaration of the Rights and Duties of Man by all member states of the OAS, regardless if they are state parties to the ACHR. The Commission has received thousands of petitions, with a total of petitions 1758 received in 2014 and 2164 petitions received in 2015.[1] Around ninety percent of the petitions are rejected (see requirements in article 28 Rules of Procedure of the Inter-American Commission on Human Rights).[2]

Once the petition passes the preliminary examination by the Commission, the state is notified and has 3 months to provide information on the petition and respond to questions of admissibility (Article 30.3 Rules of Procedure of the Inter-American Commission on Human Rights). Based on the information provided by the parties, if the Commission determines that the petition has competence (via ratione personae, ratione loci, ratione temporis, ratione materiae and the fulfillment of the prerequisites in Article 46 ACHR—exhaustion of domestic remedies, compliance with temporal and non-duplicity requirements, and a legitimate violations of rights), the petition passes to the merits phase. In the merits phase, the petitioners have 4 months to present their additional observations, which are then transferred to the state, which in turn has 4 months to present its observations (Article 37 Rules of Procedure of the Inter-American Commission on Human Rights).

At this stage, the parties are encouraged to reach a friendly settlement (Article 48 ACHR). However, if none is reached, the Commission will draw up a report of the facts and its conclusions (Article 50 ACHR), allowing the petitioner one month to present its positions regarding the submission of the case to the Court (Article 44.3 Rules of Procedure of the Inter-American Commission on Human Rights). If the Commission considers that the state has not complied with the Commission’s recommendations, it can refer the case to the Court (51.1 ACHR; Article 45 Rules of Procedure of the Inter-American Commission on Human Rights).

In the initial proceedings before the Tribunal, the Commission presents the merits of the case to the Court (Article 35 Rules of Procedure of the IACtHR, Article 50 ACHR). After the Court ensures that the prerequisites are fulfilled, the representatives of the alleged victims have 2 months to present the brief containing pleadings, motions and evidence (Article 40 Rules of Procedure of the IACtHR), to which the state then has 2 months to respond (Article 41 Rules of Procedure of the IACtHR).

The Court will subsequently hold oral proceedings, in which the Commission, the representatives of the alleged victims and the state appear, as well as witnesses and declarants (Article 45 et seq. Rules of Procedure of the IACtHR). There are three parties to the proceedings at the Court: the Commission (Article 57 ACHR), the alleged victim and the state. During the hearing, the Tribunal will hear allegations and observations over preliminary exceptions, merits and reparations.

After the oral proceedings, final written allegations are presented (Article 56 Rules of Procedure of the IACtHR) and the court will deliberate in private and approve the judgment (Article 67 Rules of Procedure of the IACtHR).

The decision of the Court is final, although the parties can request an interpretation of the ruling if there is a disagreement as to its meaning or scope (Article 67 ACHR).

When the Tribunal finds that the state has violated a right guaranteed in the inter-American human rights treaties, the Court orders reparations, both patrimonial and extra-patrimonial, for a restitutio in integrum. The Court will monitor the compliance with the judgments and other decisions at the Court through the submission of reports by the state. The Court can even convene hearings to monitor state compliance (Article 65 ACHR, Article 69 Rules of Procedure of the IACtHR).

Finally, the Court can also issue advisory opinions regarding the interpretation of the ACHR or of other treaties concerning the protection of human rights in the American states (Article 64 ACHR, Article 73 Rules of Procedure of the IACtHR).

The IACtHR faces many challenges and criticisms, such as the enforceability of its rulings, financial and operational constraints, and the non-universality of its instruments. Member states have entirely failed to implement parts of the Court’s rulings in 30% of the cases (statistics from prior to 2008) and compliance with the Court’s rulings through the modification of domestic legislation has been achieved only in 20% of cases (see Inter-American Human Rights Network).[3] Funding from OAS member states is wholly insufficient, leading to mass layoffs at the Commission.[4] A total of 9 out of 34 inter-American states have not ratified the convention—among those are the United States and Canada—and two others have denounced their ratification. Finally, the range of human rights covered are not just “traditional” human rights, designed to address violations such as those perpetrated by military dictatorships, but also include rights touching on issues dealing with indigenous, LGBTI and abortion, which often raises opposition from state and religious interest groups, further placing barriers and making obstacles for the functioning of this important human rights institution.

I hope that, in not too technical of terms, this has answered how the Inter-American system of human rights works and how the interns fit into the bigger picture. On a final note, however, I would like to say that the most valuable part of my experience, has been the variety of people, places and perspectives that I have encountered at the Court—the personal side of my experience. The friends I have made have led to enriching conversations on Latin American (and U.S.) politics and human rights issues. There is a wide range of countries (both Latin American and European) represented by the interns and visiting professionals at the Court, which has created an inspiring and convivial intellectual environment. On the weekends, Costa Rica offers a diverse selection of beaches and volcanoes to discover outside of San José, out of which I have most admired visiting the northwestern province of Guanacaste—the driest province in Costa Rica, known for its surf beaches and guanacaste trees, notorious for their elephant-ear shaped seedpods.

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Playa Brasilito, Guanacaste.


[1] Informe annual 2014 y 2015, Organización de los Estados Americanos, <http://www.oas.org/es/cidh/informes/anuales.asp>.

[2] Ibid, at 24.

[3] Inter-American Human Rights Network, Challenges and Criticisms, citing González-Salzberg, D. A. (2010), ‘The Effectiveness of the Inter-American Human Rights System: A Study of the American States’ Compliance with the Judgments of the Inter-American Court of Human Rights’, International Law: Revista Colombiana de Derecho Internacional vol. 16, pp. 115-142.

[4] “Severe Financial Crisis of the IACHR Leads to Suspension of Hearings and Imminent Layoff of Nearly Half its Staff”, OAS Press Release, May 23, 2016.

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