Unlike the European human rights system, where the amount of inter-State disputes is significant \u2013 and growing\u2014 the inter-State disputes mechanism under the inter-American human rights regime has had virtually no relevance: there have only been two inter-State disputes brought before the Inter-American Commission on Human Rights\u2014one of the two bodies that, along with the Inter-American Court, make up the regional human rights system.\u00a0 One of those cases was declared inadmissible and the second one ended in an amicable solution. Therefore, to explore how inter-State disputes operate under inter-American human rights law, it is necessary to broaden the view. This post examines how certain mechanisms\u2014typically, advisory opinions by the Inter-American Court\u2014can serve as a substitute for inter-State \u201ccommunications\u201d, as inter-State disputes are known under inter-American human rights law.<\/p>\n
<\/p>\n
Two communications<\/strong><\/p>\n The American Convention on Human Rights<\/a> establishes the inter-State dispute mechanism in its Article 45<\/a>. Unlike the European human rights regime, members of the Organization of American States (OAS) must expressly \u201crecognize[] the competence of the Commission to receive and examine communications in which a State Party alleges that another State Party has committed a violation of a human right set forth in this Convention\u201d, with an addition that \u201cthe Commission shall not admit any communication against a State Party that has not made such a declaration\u201d (Art. 45 (2) American Convention<\/a>).<\/p>\n As mentioned, as of today there have only been two instances in which States have used this mechanism. First, in 2006, Nicaragua lodged a communication against Costa Rica, arguing that Costa Rica had failed to guarantee the rights of Nicaraguans immigrants, resulting in the violation of several provisions of the American Convention on Human Rights. In its inadmissibility report, the Commission found<\/a> that Nicaragua had \u201cfailed to prove the existence of a generalized practice of discrimination by Costa Rica against the Nicaraguan population\u201d (para. 305<\/a>). One aspect that is important to note is the Commission\u2019s elaborate articulation of a \u201ctruly inter-American public order\u201d (para. 197<\/a>) which underlies the justification of inter-State communications, and, as H\u00e9l\u00e8ne Tigroudja explains (forthcoming on Friday<\/em>), is also part of the traditional narrative on the European Court of Human Rights\u2019 use of inter-State disputes, under the European Convention. As I will show below, the Inter-American Court<\/em> has returned to this notion in advisory proceedings that can operate as inter-State cases in disguise.<\/p>\n Second, in 2009, Ecuador filed a communication<\/a> against Colombia for the extra-judicial killing of an Ecuadorean citizen in the context of a military operation conducted by the Colombian army in Ecuadorean soil. The case had a convoluted proceeding before the Commission, with the two States attempting several times to reach a friendly settlement, which, after multiple iterations, they did. The Commission archived the communication, and the States went on to agree on the terms of their settlement.<\/p>\n The fact that this communication ended in an amicable solution raises its own questions as to how friendly settlements may operate in the context of inter-State disputes. As I have argued elsewhere<\/a>, settlements in the context of human rights violations, as opposed to, say, private entities\u2019 disputes, may demand that human rights bodies be careful as to the requirements under which such settlements are permissible. If such settlements concern inter-State<\/em> disputes, where States act on behalf of individuals whose rights have been violated, considerations as to the types of remedies and the role of victims vis-\u00e0-vis States in the proceedings demand close attention.<\/p>\n <\/p>\n Advisory opinions as inter-State cases<\/strong><\/p>\n As Laurence Burgorgue-Larsen noted during the conference, Latin American States have had a number of international disputes, many of them concerning border disputes, the use of river waters, environmental issues, and of course, human rights. Yet, States have chosen different venues to address their disputes. Many States resort to the International Court of Justice (ICJ), pursuant to specific dispute settlement clauses or to the general 1948 American Treaty on Pacific Settlement<\/em> (known as \u201cPact of Bogot\u00e1<\/a>\u201d, which has been ratified by sixteen out of thirty-five OAS members).<\/p>\n More recently, however, some States seek advisory opinions by the Inter-American Court of Human Rights, as a way of confronting other States without necessarily mentioning them. This section will briefly consider the latter, which could be considered as a \u201ccovert\u201d or \u201cdisguised\u201d inter-State disputes under the inter-American human rights regime.<\/p>\n Two of such requests \u2013 both made by Mexico \u2013 concern, generally speaking, the rights of immigrants, which is evidently a human rights<\/em> matter. In 1997, Mexico sought the Court\u2019s opinion \u201con behalf of some of its nationals, whom the host State [i.e., the United States] had allegedly not informed of their right to communicate with Mexican consular authorities and who had been sentenced to death in ten States in the United States\u201d (Advisory Opinion OC-16\/99<\/a>, para. 2). As this paragraph makes clear, the opinion sought had a clear \u201crespondent\u201d State, even though it was one that had not \u2013 and has not \u2013 ratified the American Convention. The Inter-American Court rendered its opinion<\/a> and found that the 1963 Vienna Convention on Consular Relations<\/em><\/a> \u201cconfers rights upon detained foreign nationals, among them the right to information on consular assistance, and that said rights carry with them correlative obligations for the host State\u201d (dispositif 1<\/a><\/em>).<\/p>\n The second request by Mexico \u2013 also concerning the rights of migrants under international law \u2013 generated a landmark advisory opinion<\/a>, issued in 2003. \u00a0In Undocumented Migrants<\/em>, the Court found that States have a duty to respect workers\u2019 right to equality and non-discrimination despite their undocumented status, and laid out guidelines for the treatment of undocumented workers. It has been argued<\/a> and was noted by interveners in the advisory proceedings (see opinion<\/a>, pp. 34, 46, 47), that the opinion was a move in response to a decision by the U.S. Supreme Court<\/a>, which severely restricted the rights of undocumented workers. The most remarkable passage of the opinion<\/a> remains the Court\u2019s finding that the principle of non-discrimination had attained the status of a jus cogens<\/em> norm (dispositi<\/em>f<\/em> 4<\/a>), a move that has generated considerable criticism<\/a>, and that no other international court has espoused. As Andrea Bianchi has noted<\/a>, arguably the Court\u2019s articulation of jus cogens <\/em>\u201cmay have been instrumental in reaching the United States, not a party to the American Convention on Human Rights\u201d.<\/p>\n In 2014, the Court issued an advisory opinion<\/a> on the \u201cRights and Guarantees of Children in the Context of Migration and\/or in need of International Protection\u201d. This time the request came from four <\/em>States, acting under the Mercosur group, a South American trade bloc defined<\/a> as \u201ca process of regional integration initially established by Argentina, Brazil, Paraguay and Uruguay\u201d. Once again, it was fairly clear that the request was directed to address a specific context, this time the situation in the northern part of Central America and, of course, North America, that is, the Southern border of the United States. Remarkably, the Court declared that its conclusions had \u201clegal relevance\u201d to all<\/em> States that have adopted the 1948 American Declaration o<\/em>f<\/em> the Rights <\/em>and Duties <\/em>of Man<\/em><\/a>\u2014e.g., the United States\u2014and not just those that have ratified<\/a> the American Convention (para. 32<\/a>). What we see here is not just the expansion of substantive rights by way of judicial interpretation, but also the Court\u2019s expansion in its reach<\/em> in terms of the OAS States that may fall under its jurisdiction. The United States is not a party to the American Convention, and is therefore not subject to the Court\u2019s jurisdiction; yet, through its advisory role, the Court seems to attempt to hold the State accountable for human rights violations committed against the nationals of third States\u2014a matter that would conceptually fall under an inter-State dispute mechanism.<\/p>\n Finally, Colombia is another State that has resorted to advisory proceedings to process international disputes in at least two cases. The first one concerns a dispute with Nicaragua \u2013 brought<\/a> by Nicaragua before the ICJ. To strengthen its case before the World Court<\/a>, Colombia requested and obtained an advisory opinion<\/a> by the Inter-American Court on the right to a healthy environment. More recently, the latest advisory opinion<\/a> issued by the Inter-American Court\u2014also requested by Colombia\u2014addresses the human rights obligations of States that have denounced the American Convention. Although the request was formulated in a seemingly neutral way, the subtext was obvious: Colombia was referring a case on Venezuela, which pulled out of the system in 2012 after a standoff<\/a> with both the Court and the Commission.<\/p>\n One aspect concerning the latest opinion that is worth mentioning is the Court\u2019s reference to the notions of \u201cinter-American public interest\u201d and \u201ccollective guarantee\u201d of human rights (Chapter VI<\/a>). The Court notes that the \u201ccollective guarantee\u201d notion \u201cunderlies the entire inter-American system, and in particular to the solidarity and good neighborliness among the States of the Americas [which must] cooperate with each other in order to comply with their international obligations, both regional and universal\u201d (para. 163<\/a>). This reference to the inter-American public interest implies that all States have a stake in ensuring the protection and promotion of human rights in the region, and is connected to the emphasis that the Inter-American Commission placed on this notion in its inadmissibility report<\/a> in the Nicaragua v. Costa Rica communication. So, in a way, through the use of advisory proceedings, the Court returns to the idea that, underlying the use of inter-State communications, it is the region\u2019s interest that should drive the mechanism, rather than the defense and representation of particular State interests.<\/p>\n