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Member State Compliance with the Judgments of the Inter-American Court of Human Rights

Published online by Cambridge University Press:  28 February 2019

Morse Tan
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Abstract

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

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Articles
Information
International Journal of Legal Information , Volume 33 , Issue 3 , Winter 2005 , pp. 319 - 344
Copyright
Copyright © 2005 by the International Association of Law Libraries 

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References

1 18 USCS §401 (2005); see also Green v. United States, 356 U.S. 165 (1958); Rebecca Yoheved Starr, Twenty-Eighth Annual Review of Criminal Procedure: Authority of the Trial Judge, 87 Geo. L.J. 1590 (1999).Google Scholar

2 “The Inter-American Court of Human Rights is the sole judicial organ in the Inter-American human rights system. As such, it is the final arbiter of human rights in those American States that have ratified the American Convention on Human Rights.” JO M. Pasqualucci, Practice and Procedure of the Inter-American Court of Human Rights (2003); see also Thomas Buergenthal, The Inter-American Court of Human Rights 76 A.I.J.L 231 (1982). Since the Inter-American system of Human Rights was created, the creation of a judicial organ was a vital necessity. See Carlos Garcia Bauer, Los Derechos Humanos en America [The Human Rights in America] (1987). “The Court's purpose is specifically defined as the application and interpretation of the Convention. In carrying out its purpose the Court exercises both an adjudicatory and advisory jurisdiction.” Scott Davidson, The Inter-American Court of Human Rights (1992); see also Jo M. Pasqualucci, Advisory Practice of the Inter-American Court of Human Rights: Contributing to the Evolution of International Human Rights Law 38 Stan. J Int'l L. 241 (2002). For more information on the advisory jurisdiction, see Manuel E. Ventura Robles & Daniel Zovatto, La Funcion Consultiva de la Corte Interamericana de Derechos Humanos: Naturaleza y Principios [The Advisory jurisdiction of the Inter-american Court of Human Rights: Nature and principles] (1982-1987). For more information about the operation of the Human Rights Court, see Antonio Augusto Cancado Trindade, The Operation of the Inter-American Court of Human Rights, in The Inter-American System of Human Rights (David J. Harris & Stephen Livingstone eds., 1998). For a detailed history of the Inter-American Court of Human Right, see also Víctor Rodríguez Rescia & Marc David Seitles, The Development of the Inter-American Human Rights System: A Historical Perspective and a Modern-Day Critique 16 N.Y.L. sch. J. Hum. Rts. 593 (2000); La Corte Interamericana de Derechos Humanos [The Inter-American Court of Human Rights] (1986); The Inter-American Court of Justice, at http://www.corteidh.or.cr/ (last visited Feb. 18, 2005).Google Scholar

3 There are less overt but nonetheless real and perceived consequences for not complying: they can come in diplomatic, economic, political and social dimensions, for examples.Google Scholar

4 While the Court has eventually received compliance with its reparation orders, it has had difficulty in getting State compliance with orders for States to press criminal prosecution in their domestic systems.Google Scholar

5 Douglass Cassel, Peru Withdraws from the Court: Will the Inter-American Human rights System meet the Challenge? 20 Hum. RTS. L.J. 167, 167-168 (1999).Google Scholar

6 “The interaction between Peru and the Inter-American Court of Human Rights (Court) over the last few years has spawned a series of pathbreaking events. The Court issued unprecedented remedial judgments in cases that were brought against Peru under the American Convention of Human Rights and that arose out of the conviction and sentencing of civilians in military tribunals by so-called faceless judges pursuant to emergency decree laws on terrorism and treason. For the first time in its history, the Court ordered a state to release a prisoner, to nullify judgments of its courts and to reform its domestic laws.” Bernard H. Oxman & Karen C. Sokol, International Decision: Ivcher Bronstein Human Rights—Law of treaties-Jurisdiction of Inter-American Court of Human Rights—Effect of Attempted Withdrawal of Jurisdiction, 95 Am. J. Int'l L. 178 (2001).Google Scholar

7 Trinidad and Tobago, which had been a State Party, denounced the American Convention on May 26, 1998, effective May 26, 1999. PASQUALUCCI, PRACTICE AND PROCEDURE, supra note 2; see also Richard J. Wilson & Jan Perlin, The Inter-American Human Rights System: Activities from Late 2000 Through October 2002, 18 Am. U. Int'l L. Rev. 651 (2003).Google Scholar

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9 “The inter-American human rights system is composed of a series of international documents. The principal human rights tools include: the American Convention on Human Rights, and its accompanying protocols; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights; and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. In addition, three regional inter-American conventions seek to broaden the scope of protected human rights: the Inter-American Convention to Prevent and Punish Torture; the Inter-American Convention on Forced Disappearance of Persons; and the Inter-American Convention for the Prevention, Punishment, and Eradication of Violence Against Women.” Rescia & Seitles, supra note 2; see also davidson, supra note 2; Tom Farer, The Rise of the Inter-American Human Rights Regime: No longer a Unicorn, Not Yet an Ox, The Inter-American System of Human Rights (1998); Jo. M. Pasqualucci, Victim Reparations in the Inter-American Human Rights System: A Critical Assesssment of Current practice and procedure, 18 mich J. Int'l L. 19 (1996).Google Scholar

10 Supra note 5, at 167; see, e.g., Financial Situation of the Court, 1997-1998 Inter-Am. Ct. H.R. 31, OAS/ser. L/III.29, doc. 5 (1998).Google Scholar

11 Cassell, supra note 10. The Inter-American Court of Human Rights was informed by the Peruvian Embassy in Costa Rica that Peru adopted Legislative Resolution No. 27401 on January 18th, 2001. This Resolution charges the Executive Branch to do everything necessary to re-establish the State of Peru under the contentious jurisdiction of the Inter-American Court of Human Rights. Inter-American Court of Human Rights, at http://www.corteidh.or.cr/PRENSA/2001/cp_2_esp.htm] (last visited 2003).Google Scholar

12 “A popular uprising in the year 2000 forced Fujimori to flee to Japan, where he was seeking protection as a national, so as not to stand trial for multiple human rights violations” Sonia Picado, The Evolution of Democray and Human Rights in Latin America: A Ten Year Perspective No, 3, hum. Rts. Brief 28 (2004).Google Scholar

13 “Peru made history by becoming the first state to deposit its withdrawal from the Court's jurisdiction without denouncing the American Convention. The Court deemed the withdrawal ineffective: even though states may ratify the American Convention before or without ever accepting the compulsory jurisdiction of the Court, once they do accept that jurisdiction, they may denounce it only through denunciation of the Convention as a whole.” Peru may therefore not return to the status quo ante; once committed to the American Convention and the compulsory jurisdiction of the Court, it is both or none. Oxman & Sokol, supra note 6.Google Scholar

14 Inter-American Court of Human Rights, at http://www.corteidh.or.cr/PRENSA/2001/cp_4_esp.htm 4 (last visited Sept. 2003). The Ivcher Bronstein case, Interpretation of the Judgment on the Merits: Art. 67 American Convention on Human Rights, Judgment of September 4, Inter-Am. Ct. H.R., (ser. c), No. 84 (2001), available at http://wwwl.umn.edu/humanrts/iachr/C/84-ing.html (last visited Mar. 6, 2005).Google Scholar

15 See Oxman & Sokol, supra note 6.Google Scholar

16 See Wilson & Perlin, supra note 7.Google Scholar

17 See Interpretation of the Judgment on the Merits: Art. 67 American Convention on Human Rights, Judgment of September 4, supra note 18.Google Scholar

18 Jurisdiction, Resoluciones y Sentencias, Series C, No. 55 (2000), available at http://corteidh oea.nu.or.cr/ci/PUBLICAC/SERIE_C/C_55_ESP.HTM (March 7, 2005); see also Interpretation of the Judgment on the Merits: Art. 67 American Convention on Human Rights, Judgment of September 4, supra note 18, “While Ivcher was struggling to regain his citizenship and his rights in the television station, President Alberto Fujimori, serving his second term, was endeavoring to overcome the limitations of Peru's 1993 Constitution, which prohibits a president from serving more than two consecutive terms. Fujimori's first term began in 1990, three years before the Constitution came into effect. In 1996, the Peruvian Congress enacted a statute that interpreted the term limitation as inapplicable to presidential terms that began prior to the approval of the Constitution. Three of the seven justices (with two abstentions) on Peru's Constitutional Tribunal (Tribunal Constitutional) invalidated the new statute, however, as it ‘applied to the specific case of the incumbent President's candidacy for the office of President in the year 2000,’ thereby threatening to frustrate Fujimori's ambitions for a third presidential term. Four months later, the Congress impeached the three justices and then voted in favor of removing them from the Constitutional Tribunal. Pursuant to a petition filed by a number of Peruvian congressional deputies, the Commission issued a report finding that Peru had violated the justices’ rights to a fair trial, as well as the right of all Peruvians to an independent and impartial justice system. The Commission recommended that Peru reinstate the justices, but Peru failed to comply or to reach a friendly settlement after negotiations with the petitioners. The Commission then submitted the case to the Court.” See also Oxman & Sokol, supra note 6.Google Scholar

19 For more details about the Peruvian crisis, see Ana Salado Osuna, Los Casos Peruanos ante la Corte Interamericana de Derechos Humanos [Peru' s cases before the Inter-American Court of Human Rights] (2004).Google Scholar

20 Wilson & Perlin, supra note 7.Google Scholar

21 “During 2001 and 2002, the Court decided both the admissibility and merits of a collection of death penalty cases from Trinidad and Tobago ('Trinidad'). The Court first considered Trinidad's preliminary objections in three separate cases, the Hilaire Case, the Benjamin et al. Case, and the Constantine et al. Case. The cases were later consolidated for disposition on the merits and reparations under the name Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. All of these cases present complex issues of treaty application and treaty reservations, arising from Trinidad's aggressive efforts to defend its death penalty regime. Because of its desire to speed up executions, Trinidad withdrew its ratification of the Convention on May 26, 1999, one year after its announced intention to do so. The Commission and Court nonetheless continue to apply the Convention to all pending cases that arose when the Convention was in effect” Id. Google Scholar

22 Interview with Professor Douglass Cassel, Northwestern University School of Law (Feb. 8, 2001).Google Scholar

23 Id.; also see Mark w. Janis, The Efficacy of Strasbourg Law, 15 conn. J. of Int'l L. 39 (2000). Janis notes gaps in the compliance literature for the European system. There seem to be appreciably more gaps in the existing Inter-American human rights system literature.Google Scholar

24 “Evaluating accomplishments and prospects in the area of international human rights law recalls the oft-used rhetorical question about whether the glass is half empty or half full. As far as human rights are concerned, if the question is ‘how much has been achieved,’ the answer must be ‘a great deal.’ If the question is ‘how much remains to be achieved,’ the answer will be the same: ‘a great deal.’ This statement made by Thomas Buergenthal about the accomplishment of international human rights in general could be applied to the Inter-American system of Human Rights. Thomas Buergenthal, International Human Rights Law and Institutions; Accomplishments and Prospects, 63 wash L. Rev. 1 (1988); see also, Michael F. Cosgrove, Protecting the Protector: Preventing the Decline of the Inter-American System for the Protection of Human Rights, 32 Case w. Res. J. Int' l L. 39 (2000).Google Scholar

25 See Thomas Buergenthal & Douglass Cassel, El futuro del Sistema Interamericano de Proteccion de los Derechos Humanos [The Future of the Inter-American System of Human Rights] Inter-American Institute of Human Rights (1998).Google Scholar

26 See Thomas Buergenthal & Dinah Shelton, Protecting Human Rights in the Americas: Cases and Materials (4th ed., 1995).Google Scholar

27 Installation of the Court, 1980-1983 Inter-Am. Ct. H.R. 9, OEA/ser. L/V/III.3, doc. 13 corr. 1 (1980).Google Scholar

28 Entry into Force of the American Convention, 1980-1983 Inter-Am. Ct. H.R. 7, OEA/ser. L/V/III.3, doc. 13 corr. 1 (1980).Google Scholar

29 Their names and nationalities are as follows: Thomas Buergenthal (United States), Máximo Cisneros Sanchez (Peru), Huntley Eugene Munroe (Jamaica), Cesar Ordonez Quintero (Colombia), Rodolfo Piza Escalante (Costa Rica), Carlos Roberto Reina Idiaquez (Honduras), M. Rafael Urquia (El Salvador).Google Scholar

30 “These states are 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, Uruguay and Venezuela. Trinidad and Tobago, which had been a State Party, denounced the American Convention on 26 May 1998, effective 26 May 1999.“ Pasqualucci, Practice and Procedure, supra note 2.Google Scholar

31 Id. Google Scholar

32 For criteria referring cases to the Court, see Claudio Grossman, President's Inaugural Session Speech at the 95th Regular Meeting of the Inter-American Commission on Human Rights, 42 St. louis U. L.J. 1115 (1998).Google Scholar

33 Baena Ricardo et al. (270 Workers v. Panama): Merits, Inter-Am. Court H.R., Series C, No. 72, ¶ 65(h)-(i) (2001).Google Scholar

34 “Cases in which States have accepted international responsibility include Barrios Altos (Chumbipuma Aguirre et al v Peru) (Merits), Case 75, Inter-Am C.H.R., para 31 ser.c, doc. 75. (2001); Aloeboetoe et al v Suriname (Merits), Inter-Am. C.H.R., para 22, ser.c, doc. 11(1991); El Amparo v Venezuela (Merits), Inter-Am. C.H.R., para 19, ser c, doc. 19 (1995); Garrido and Baigorria v Argentina (Merits), Inter-Am C.H.R., para 25, ser. c, doc. 26, (1996); Del Caracazo v Venezuela (Merits), Inter-Am C.H.R, para 37, ser c, doc. 58 (1999). Las Palmeras v Colombia (Merits), Inter-Am. C.H.R., para 19, ser c, doc. 90 (2001) accepting partial responsibility.” Pasqualucci, Practice and Procedure, supra note 2 at 8.Google Scholar

35 Pasqualucci, Practice and Procedure, supra note 2.Google Scholar

36 See Loayza Tamayo v. Peru (Merits), Inter-Am. C.H.R. para 5, 84, ser. c, doc. 33 (1997).Google Scholar

37 Pasqualucci, Practice and Procedure, supra note 2.Google Scholar

38 Cesti Hurtado v. Peru (Request for Interpretation of the Judgment of 29 September 1999) Inter-Am. C.H.R., order of 19, ser. c, doc. 62 (1999).Google Scholar

39 Cantoral Benavides v Peru (Reparations), Inter-Am. C.H.R., para 76, ser c, doc. 88 (2001).Google Scholar

40 Suarez Rosero v. Ecuador (Reparations) (Art.63 (1), American Convention of Human Rights), Inter-Am. C.H.R., para 76, ser c, doc. 88 (2001); Pasqualucci, Practice and Procedure, supra note 2.Google Scholar

41 Cesti Hurtado v. Peru (Reparations) Inter-Am. C.H.R., para 15, ser. c, doc. 78, (2001).Google Scholar

42 Pasqualucci, Practice and Procedure, supra note 2.Google Scholar

43 See Natasha Parassran Concepcion, The Legal Implications of Trinidad & Tobago's Withdrawal from the American Convention on Human Rights, 16 Am. U. Int'l L. Rev. 847 (2001).Google Scholar

44 See Press Release, Peruvian Legislative Resolution No. 271532, Inter-Am. C.H.R., CP2/01, at http://corteidh.or.cr. (last visited Mar. 6, 2005).Google Scholar

45 Agreement Between the Government of the Republic of Costa Rica and the Inter-American Court of Human Rights, 1980-1983 Inter-Am. Ct. H.R. 16, 17 OEA/ser. L/III.5, doc. 13 (1981) [hereinafter, Costa Rica Agreement].Google Scholar

46 This is important because such a body must ideally be independent of the type of political pressure that could distort its judgment.Google Scholar

47 It provides that the Court may enter into agreements of cooperation with law schools, bar associations, domestic courts, and research institutions dealing with human rights so that the Court can strengthen the principles of the Convention and the Court itself. Id. at 18.Google Scholar

48 Id. at 17.Google Scholar

49 Again, this independence is crucial for establishing the impartiality of the Court. This official acknowledgment of the importance of the Court, while possibly viewed as token, is nonetheless an official pronouncement by the Government of the Republic of Costa Rica, the host country of the Court. Especially during this formative period of the Court, such an official endorsement by Costa Rica could only be seen as a boon towards greater recognition and legitimacy, which aid in compliance. Id. at 17.Google Scholar

50 Id. at 18-19.Google Scholar

51 Id. at 19.Google Scholar

52 Id. at 17.Google Scholar

53 Id. Google Scholar

54 Id. at 20.Google Scholar

55 Id. at 20-25.Google Scholar

56 Id. at 26.Google Scholar

57 Douglass Cassel, A United States View of the Inter-American Court of Human Rights, in The Modern World of Human Rights/Essays in Honour of Thomas Buergenthal, 209 (1996). It covers the Court's first 15 years while giving an American professor's view on why the U.S. might consider accepting the Court's contentious jurisdiction.Google Scholar

58 Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J., 273 (1997).Google Scholar

59 European Court of Justice, at http://europa.eu.int/institutions/court/ (last visited Mar. 7, 2005).Google Scholar

60 “In the European Court of Human Rights, individuals can sue states-parties to the European Convention on Human Rights and Fundamental Freedoms [ECHR]. Just about every western and eastern European State (including Russia) is a state-party to the European Convention. As in the Inter-American system, private individuals and corporations cannot be sued. States, however, can be sued for failure to prevent foreseeable gross human rights violations committed by private persons. Furthermore, corporations can - and often do - sue states-parties. Only in dicta has the European Court recognized that shareholders can sue in exceptional circumstances. The European Court provides monetary damages, legal fees and costs awards; however, it does not provide injunctive relief and has not provided punitive damages. Another aspect of the adequacy of these international tribunal systems concerns the time it takes for the case to reach its conclusion. Assuming that the case is found admissible and the tribunal reaches the merits and damages award stage, the proceedings can last anywhere from two to ten years, depending on the case's complexity and the tribunal's interest in a particular case. The Inter-American system will generally take longer because of its lack of financial and staff resources and each case's two-stage process of going through both the Commission and Court. On the other hand, in addition to having more money and a larger staff, cases before the European Court do not have to go through a commission. The Inter-American system however, does have friendly dispute resolution mechanisms built into it that expedite the resolution of cases. Unfortunately, the European system no longer appears to have such a strong, friendly dispute resolution mechanism in place, as the old European Commission of Human Rights was dismantled a few years ago.” Francisco Forrest Martin, The International Human Rights & Ethical Aspects of the Forum Non Conveniens Doctrine, 35 U. Miami Inter-Am. L. Rev. 101 (2003); See The European Court of Human Rights, at http://www.echr.coe.int/ (last visited Feb. 28, 2005); Luis Ignacio Sanchez Rodriguez, The American and European Human Rights’ System, la corte y el sistema Interamericanos de Derechos Humanos [The Court and the Inter-American System of Human Rights] (1994), at http://www.echr.coe.int/ (last visited Feb. 18, 2005).Google Scholar

61 “The United Nations Human Rights Committee was established to monitor the implementation of the Covenant and the Protocols to the Covenant in the territory of States parties. It is composed of 18 independent experts who are persons of high moral character and recognized competence in the field of human rights. The Committee convenes three times a year for sessions of three weeks’ duration, normally in March at United Nations headquarters in New York and in July and November at the United Nations Office in Geneva.” United Nations Human Rights Committee, at http://www.unhchr.ch/html/menu2/6/a/introhrc.htm (last visited Mar. 6, 2005).Google Scholar

62 “The term ‘international tribunal’ is referenced in a number of United States statutes. From these statutory obligations, as interpreted, one can discern a workable definition for international tribunals as: an objective and impartial adjudicative body established by or with the imprimatur of two or more governments with the power to make a binding decision as to law or facts. This definition falls between the two extremes, rejecting a litmus test that excludes many international adjudicative bodies that do not meet certain artificial categories, but is not so broad as to embrace the whole panoply of potential candidate institutions.” Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int'l L. 675 (2003).Google Scholar

63 “By definition, in a supranational body there is no democratically-legitimate hierarchical superior, as we understand that notion in a national sense. Rather, there are at best indirect political controls exercised by national executives over otherwise-autonomous supranational technocratic agents who owe their loyalty to the membership of the supranational body as a whole rather than to any one particular state.” Peter L. Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, 99 colum. L. Rev. 628 (1999).Google Scholar

64 Wilson & Perlin, supra note 7; Christina M. Cerna, The Inter-American System for the Protection of Human Rights, 16 Fla. J. Int'l L. 195 (2004); Pasqualucci, supra note 2; Michael F. Cosgrove, supra note 24.Google Scholar

65 Helfer & Slaughter supra note 58.Google Scholar

66 Id Google Scholar

67 Id Google Scholar

68 Id Google Scholar

69 See Manuel E. Ventura Robles, La Corte Interamericana de Derechos Humanos: Camino hacia un Tribunal Permanente, [The Inter-American Court of Human Rights: The Way Towards a Permanent Court], in La Corte Interamericana de Derechos Humanos [The Inter-American Court of Human Rights] (1986).Google Scholar

70 See Augusto Cancado Trindade & Manuel E. Ventura Robles, El Futuro de la Corte InterAmericana de Derechos Humanos [The Future of the Inter-American Court of Human Rights] (2003). To contemplate where the Inter-American system is at, and what direction it can go, see also Brenda Cossman, Reform, Revolution, or Retrenchment? International Human Rights in the Post-Cold War Era, 32 Harv. Int'l L.J. 339 (1991).Google Scholar

71 European Court, supra note 59.Google Scholar

72 The American Convention of Human Rights (American Convention), signed in 1969, incorporated the Commission and assigned it specified specific powers under the Convention. It also created the Inter-American Court of Human Rights (Inter-American Court). The American Convention entered into force in 1978. See the American Convention of Human Rights, at http://www.hrcr.org/docs/American_Convention (February 18th, 2005); Nieto Navia, Introducción al Sistema interamericano de Protección a los derechos humanos [Introduction to the Inter-American System of Human Rights] (1993).Google Scholar

73 As regards regional human rights systems, “three systems are in existence today, one in Europe, one in the Americas, and the third, in Africa. The European system is the oldest of the three and is generally considered to be the most effective. The institutional structure established by the American Convention is modeled on that of the European Convention. The Inter-American Commission on Human Rights and the Inter-American Court have functions similar to those of their European counterparts” Buergenthal, supra note 24, at 15. For a comparison between the Inter-American Court of Human Rights and the European Court of Human Rights, see Martin, supra note 60.Google Scholar

74 See European Union, at http://europa.eu.int (last visited Mar. 1, 2005).Google Scholar

75 Louis Henkin, How Nations Behave 47 (2d ed. 1979), quoted in Harold Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599 (1997); see also David H. Moore, A Signaling Theory of Human Rights Compliance, 97 Nw. U. L. Rev. 879 (2003).Google Scholar

76 Harold Hongju Koh, Why Do Nations Obey International Law? Yale L.J. 2599 (1997). In footnote 2 Koh cites a long string of studies along these lines.Google Scholar

77 See Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 Cal. L. Rev. 1823, 1826 (2002); Oona A. Hathaway, Do Treaties Make a Difference? Human Rights Treaties and the Problem of Compliance, 111 Yale L.J. 1935, 1937 (2002).Google Scholar

78 See Moore, supra note75.Google Scholar

79 According to David Moore, “none of these approaches, however, offers a comprehensive description of compliance with international law in general or human rights in particular. To name some of the more apparent shortcomings in his view, the Chayes's managerial model assumes a tendency to comply rather than explaining compliance.” Id. Google Scholar

80 Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, 3 (1995).Google Scholar

81 Moore, supra note 76.Google Scholar

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83 See Organization of American States, at http://www.oas.org/main/main.asp?sLang=E&sLink=‥/‥/documents/eng/structure.asp (last visited Mar. 9, 2005), which gives the structure of the General Assembly of the OAS.Google Scholar

84 Thomas M. Franck, Fairness In International Law and Institutions (1995). Franck's 1993 Hague Lectures in Public International Law provided a foundation from which to work.Google Scholar

85 Susan Sturm provides an overview of the literature on judicial legitimacy. Judicial legitimacy is more crucial for the IACHR because it does not have coercive measures at its disposal to compel compliance Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 Geo. L.J. 1355 (1991); see also Scott C. Idleman. A Prudential Theory of Judicial Candor 73 Tex. L. Rev. 1307 (1995). Scott identifies three factors that have an impact on judicial legitimacy. These factors are: 1) unanimity or near unanimity in decisions; 2) professional civility in opinions; 3) and continuity of the law over time. The IACHR often meets the unanimity or near unanimity in decisions factor, seems to be a model of professional civility and decorum, and is still relatively young, which does not allow extensive continuity of the law over time.Google Scholar

86 Thomas M. Franck, The Power of Legitimacy Among Nations (1990).Google Scholar

87 “Harold Koh has argued that nations comply with international law as a result of repeated participation in transnational legal interactions with state and non-state actors which leads to internalization of international norms and the formation of national identity around those norms.” See Moore, supra note 75.Google Scholar

88 Why Do Nations Obey International Law?, supra note 76, at 2602; see also Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996).Google Scholar

89 Why Do Nations Obey International Law?, supra note 76.Google Scholar

90 Id. at 2604.Google Scholar

91 “The Inter-American Commission of Human Rights (Commission) was created in 1959 to serve as a mechanism for overseeing national implementation of such human rights commitments._Composed of seven members elected in their individual capacity, the Commission started operating in 1960 with a vague mandate. In 1965, its competence was expanded to accept communications, request information from governments, and make recommendations “with the objective of bringing about more effective observance of human rights.” In 1967, the OAS Charter was amended, and the Commission became a principal organ of the OAS. The Commission has three forms of jurisdiction. Its conventional jurisdiction applies to the states that have become parties to the American Convention. Its judicial invocative jurisdiction provides the competence to invoke the Inter-American Court; it applies to the state-parties to the American Convention that have accepted the Inter-American Court's jurisdiction. While these two forms of jurisdiction depend upon adherence to the American Convention, the Commission's declaration jurisdiction applies to all parties to the OAS Charter, indeed, to all states in the Americas. Hence, every independent state in the Western Hemisphere, even those which have not yet become party to the American Convention, is subject, in some form, to the Commission's jurisdiction. The Commission's jurisdiction may be invoked by citizens and organizations within the hemisphere.” Michael Reisman, Practical Matters for consideration in the establishment of a Regional Human Rights Mechanism: Lessons from the Inter-American experience, St. Louis-Warsaw Transatlantic L.J. 89, (1995); see also, The Inter-American Court of Human Rights, at http://www.cidh.org/ (last visited Feb. 18, 2005).Google Scholar

92 See Reisman supra, note 91.Google Scholar

93 Id. Google Scholar

94 “The North American Free Trade Agreement is ‘preeminently’ a trade agreement. Its main purpose is the establishment of a free trade zone between Canada, Mexico and the United States. The agreement enumerates its objectives as the elimination of trade barriers with respect to goods and services; the furthering of conditions of fair competition; the extension of investment possibilities; the protection of intellectual property rights; the creation of effective procedures concerning its implementation, application, joint administration, and dispute settlement; and the setup of a framework for further cooperation.” Patrick Specht, The Dispute Settlement Systems of the WTO and NAFTA: Analysis and Comparison, 27 Ga. J. Int'l & comp. L 57 (1998).Google Scholar

95 The Common Market of the South (Mercado Comun del Sur) was created by the Treaty of Asuncion signed by Argentina, Brazil, Paraguay, and Uruguay in 1991. Chile and Bolivia became associate members in 1996 and 1997, respectively. This is the most important international commitment among these countries. See Mercosur, at http://www.mercosur.org.uy (last visited Feb. 18, 2005).Google Scholar

96 The Organization of American States (OAS) is a pioneer of modern human rights law. The OAS Charter of 1948 incorporates the “fundamental rights of the individual” as one of the Organization's founding principles. See The Organization of American States, at http://www.oas.org/ (last visited Mar. 6, 2005); see also Thomas Buergenthal, Robert Norris & Dinah Shelton, Protecting Human Rights in the Americas: Selected Problems, (3d ed. rev., 1990).Google Scholar

97 Id. Google Scholar

98 The Center for Justice and International Law (CEJIL) is a nongovernmental, non-profit organization with consultative status before the Organization of American States (OAS), the United Nations (UN). A central component of the work of the organization is the defense of human rights before the Inter-American Commission on Human Rights (“the Commission”) and the Inter-American Court of Human Rights (“the Court”). See Center for Justice and International Law, at http://www.cejil.org/ (last visited Feb. 18, 2005).Google Scholar

99 See Amnesty International, at http://www.amnesty.org/ (last visited Mar. 6, 2005).Google Scholar

100 See Human Rights Watch, at http://www.hrw.org/ (last visited Mar. 6, 2005).Google Scholar

101 Many observers have noted this trend, including Judge Delissa Ridgeway of the Court of International Trade. Judge Delissa Ridgeway address, ABA Panel on International Law at the ABA National Conference (August 4, 2001).Google Scholar

102 See Ridgeway, supra note 101.Google Scholar

103 See Moore, supra note 75.Google Scholar

104 Id. Google Scholar

105 “The referral of a case to an international court focuses international attention on the situation, and the publicity often curtails some abuses even before the Court reaches a judgment. Most states are surprisingly sensitive about their international reputations and world image. According to a former United States representative to the U.N. Commission of Human rights, despite the harsh realities of power politics, world opinion is a force to be reckoned with. Governments devote much time and energy, both in and out of the U.N., to defending and embellishing their own human rights image and demeaning that of others.” Jo M. Pasqualucci, The Inter-American Human Rights System: Establishing Precedents and Procedure in Human Rights Law, 26 U. Miami Inter-Am. L. Rev. 297 (1994-1995); see also Jo M. Pasqualucci, Preliminary Objections Before the Inter-American Court of Human Rights: Legitimate Issues and Illegitimate tactics 40 Va. J Int' l L. 1 (1999).Google Scholar

106 Janis, supra note 23; see also Christian Tomuschat, Quo Vadis, Argentoratum? The Success Story of the European Convention on Human Rights and a Few Dark Stains, 13 Hum. Rts L.J. 401 (1992). Tomuschat devotes the third section of this article to enforcement, which he deems the real test.Google Scholar

107 Janis supra note 106, at 40.Google Scholar

108 Id. passim. Google Scholar

109 Id. at 44.Google Scholar

110 Albania (13.07.1995), Andorra (10.11.1994), Armenia (25.01.2001), Austria (16.04.1956), Azerbaijan (25.01.2001), Belgium (05.05.1949), Bosnia & Herzegovina (24.04.2002), Bulgaria (07.05.1992),Croatia (06.11.1996), Cyprus (24.05.1961), Czech Republic (30.06.1993),Denmark (05.05.1949),Estonia (14.05.1993), Finland (05.05.1989), France (05.05.1949), Georgia (27.04.1999), Germany (13.07.1950), Greece (09.08.1949), Hungary (06.11.1990), Iceland (07.03.1950), Ireland (05.05.1949), Italy (05.05.1949), Latvia (10.02.1995), Liechtenstein (23.11.1978), Lithuania (14.05.1993), Luxembourg (05.05.1949), Malta (29.04.1965), Moldova (13.07.1995), Monaco (05.10.2004), Netherlands (05.05.1949), Norway (05.05.1949), Poland (26.11.1991), Portugal (22.09.1976), Romania (07.10.1993), Russian Federation (28.02.1996), San Marino (16.11.1988), Serbia and Montenegro (03.04.2003), Slovakia (30.06.1993), Slovenia (14.05.1993), Spain (24.11.1977), Sweden (05.05.1949), Switzerland (06.05.1963), “The former Yugoslav Republic of Macedonia” (09.11.1995), Turkey (09.08.1949), Ukraine (09.11.1995)United Kingdom (05.05.1949). Council of Europe, at http://www.coe.int/T/e/com/about_coe/member_states/default.asp (last visited Mar. 9, 2005).Google Scholar

111 Mark Janis, Russia and the ‘Legality’ of Strasbourg Law, EUR J. INT'L L. 93 (1997).Google Scholar

112 Janis, supra note 106, at 46.Google Scholar

113 “On January 23, 2001, after former President Fujimori's flight to Japan and the establishment of an interim government, Peru notified the Court that it had repudiated, by legislative act, the prior notice of withdrawal from its jurisdiction and reestablished its recognition of the Court's competence. Peru's reaffirmation of its acceptance of the Court's jurisdiction is also manifest in the collaborative approach it has taken on pending cases.” Wilson & Perlin, supra note 7.Google Scholar

114 For a list of cases addressed by the Inter-American Court of Human Rights, see The Inter-American Court of Human Rights Website, at http://www.corteidh.or.cr/seriecing/index_serie_c_ing.html (last visited June 24, 2003).Google Scholar

115 Between November 1, 2002 and February 28, 2003 alone, the European Court of Human Rights dealt with 7031 cases. Human Rights Information Bulletin No. 58, Eur. Ct. H. R. at 2 (Nov. 2002- Feb. 2003).Google Scholar

116 Douglass Cassel, Jr., Inter-American Human Rights Law, Soft and Hard: What Difference? in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System 393-418 (Dinah Shelton ed., 2000).Google Scholar

117 Id. at 2.Google Scholar

118 Id. at 3-4.Google Scholar

119 Id at 4-5.Google Scholar

120 Id. Google Scholar

121 Interview with Professor Douglass Cassel, supra note 22.Google Scholar

122 Id. Google Scholar