The Inter-American Commission on Human Rights: Past, Present, and Future

In 1968, Christian Tomuschat published the article titled ‘Die Interameri kanische Menschenrechtskomission’ (The Inter-American Commission on Human Rights) on the history, operations, and impact of the then-still-nascent institution.1 Now, more than fifty years after Tomuschat’s analysis, this essay critically revisits his core claims and offers an updated perspective on the challenges, threats, and opportunities facing the Inter-American Commission on Human Rights (hereinafter ‘IACHR’, ‘the Commission’, or ‘the Inter-American Commission’). While Tomuschat understood the challenges faced by the system with far greater clarity than his contemporaries, his analysis and solutions are nonetheless tinged with a Euro-centric perspective that overemphasises written standards and the role of individual cases, im plicitly stressing legalistic measures that seek to emulate the European system as the (only possible) solution. Tomuschat recognises the social and political factors at play in the Americas, but does not centre them in his analysis. We contend it is these factors, and the response to them by the Commission, more than the formal legal standards themselves (whether in treaties, statutes or rules of procedure), that have fundamentally determined the limits and achievements of the system. To his credit, Tomuschat does recognise the Inter-American capacity to adapt to local circumstances with local knowledge, but he does not anticipate (admittedly, a very high bar of expectation) the Commission’s ability to develop a dynamic system moulded by and suited to the needs of the hemisphere despite the shortcomings in its formal, legal standards. The essay proceeds in three parts, representing the three main themes that it covers. First, it explores Tomuschat’s argument that a binding treaty would render the Commission more effective by assessing the impact of the American Convention in relation to other factors. We note in the first part that it was the practice of country visits and reports that raised the profile of the Commission in the hemisphere in the 1970s, and not the drafting and entry into force of the American Convention in that same period. Second, we note that Tomuschat rightly predicted that a binding treaty would strengthen the implementation of human rights standards in the Americas. Still, he does not afford adequate explanatory force to the system’s ability to drive human rights change even without such a treaty and, later, its capacity to do so despite a treaty that still lacks important ratifications. We contend that Tomuschat mistakes treaty ratification – an important indicator of commitment to the rule of law and human rights – with actual commitment to the rule of law and human rights. Positive changes in state policy, implementation of measures needed to curtail abuses, and financial and other support for the system itself are more relevant indicators of commitment to human rights than treaty ratification. Still, he is correct that the creation and ratification of the American Convention would be an important advance in many countries in the Americas and for the Inter-American system as a whole. The Convention not only codified the functions and powers that the Commission had developed on its own, but also granted the Commission additional authority. The creation of a binding treaty, however, has not rendered the selection of commissioners a merit-based system, nor has it ensured the financial stability of the Commission and Court. As we explain, both of those essential elements in state commitment to human rights and thus system efficacy are driven by political forces not fully addressed by Tomuschat. Third, the essay argues that although Tomuschat predicted many challenges that the Commission would face, because his analysis implicitly accepts the European human rights system as the model, and because his analysis centres on critical review of texts rather than political and social forces and the responses of the Commission to those forces, he failed to foresee the depth of the challenges and the full potential of the Inter-American Commission. We emphasise in this section the role of the United States (US) and financial constraints in limiting the system’s efficacy. We then turn to the unique aspects of the Commission’s contemporary role and its transformative impact over the past five decades. Ironically, these aspects are today sorely needed in the European system, whose membership has expanded in ways that suggest the need for a further ‘Inter-Americanisation’ of the European system, rather than the reverse. The essay concludes by noting the continuing challenges to the effectiveness of the Inter-American Commission and international human rights oversight in general, while suggesting how these challenges might be addressed in the future.