Book Reviews

Davidson, Scott. The Inter-American Human Rights System. Aldershot, UK, Brookfield, VT: Ashgate Publishing Company, 1997. Pp. xviii, 381, Index. $76.95.

The Organization of American States (OAS) has `spawned a sophisticated human rights system in the post World War Two period which has demonstrated the capacity to evolve to meet the changing circumstances of the hemisphere' (p. vii). Nevertheless, it is striking how few studies have been published in English about the functioning, the procedures and the case law of the inter-American system for the promotion and protection of human rights. After Medina³ and Buergenthal et al,⁴ published more than 10 years ago, no other comprehensive study on the inter-American system has been produced in the English language. Scott Davidson's book comes to fill this gap.⁵

In a very well documented book, Scott Davidson, Associate Professor of Law at the University of Canterbury, portrays the many complexities of the inter-American system. The structure of the book is similar to many books on the European system of human rights. The introductory chapter begins with the history of the system. The succeeding chapters describe the Inter-American Commission on Human Rights (the Commission) and the Inter-American Court of Human Rights (the Court) and the procedure before both organs. The book also includes a complete study of the rights protected under the system. In each of the chapters, Davidson explains, mostly based on official documents of the Organization of American States and on the Annual Reports of the Commission and the Court, how the system evolved from `an inauspicious beginning' with a very weak Commission created in 1959 to a highly specialized and complex system in the 1990s, with a mixture of diplomatic and juridical activities in the field. An accurate description of the OAS human rights system is not an easy work to accomplish, but Davidson shows a deep understanding of the system.

It is difficult to understand a system where there are three different kinds of obligations on states and two supervisory bodies with different jurisdictions. Currently, there are three mechanisms within the OAS for the protection of human rights in the Americas. The Commission monitors compliance with treaty obligations for the 25 states parties to the American Convention on Human Rights (the Convention).⁶ The Commission also monitors compliance for the 10 member states that are not yet parties to the Convention by applying the American Declaration of the Rights and Duties of Man.⁷ The Court monitors compliance under the Convention for the 17 states parties to the Convention that have also recognized the compulsory jurisdiction of the Court pursuant to Article 62 of the Convention.⁸ Davidson carefully and clearly explains these complexities, showing the problems arising from this mixed system.

Probably because Davidson's intention is to `provide an introductory and reasonably readable account of the institutions, processes and jurisprudence of the inter-American human rights system', the reader finishes the book with the feeling that something was left by the wayside. The reader feels that he/she has not obtained a complete picture of the system. Davidson does not pay enough attention to some important mechanisms that are crucial to the work of the inter-American system. For instance, the role of country reports and on-site visits, the two principal tools developed by the Commission to deal with widespread human rights violations, receive only marginal attention in the book (pp. 112-117).⁹ Another important tool, precautionary and provisional measures that allow the Commission and the Court to intervene in urgent cases to protect the life or physical integrity of victims under threat,¹⁰ only receive a few pages of comments (pp. 139-141). One reason for this gap in the analysis is that none of these tools is present in the European counterpart to the inter-American system. Country reports and on-site visits are not powers granted to the European Court of Human Rights or the European Commission. The use of provisional measures is also underdeveloped in the European system.¹¹ I would suggest that the principal problem in Davidson's text is his tendency to view the inter-American system with European eyes, using the European system as a model.

Another related shortcoming of Davidson's book is his completely decontextualized approach. The inter-American system for much of its history has exercised its mandate over societies confronted with gross and systematic violations of human rights, where the judges have often been killed, threatened, intimidated, corrupted or remained virtually impotent toward military authorities. The inter-American bodies, the Commission and the Court, have rarely been able to rely on the findings of fact of national judicial organs or on the good-faith cooperation of defendant governments.¹² Generally, the political organs of the OAS, the General Assembly and the Permanent Council have not supported the work of the Commission and the Court. Rarely, if ever, have these political bodies tried to enforce the recommendations of the Commission or the judgments of the Court. It follows from the differences in political context between Europe and the Americas that any attempt to comprehend the inter-American system must take into account the hostile environment in which it operates.

Nevertheless, Davidson's book will be a necessary starting point for any research on the inter-American human rights system. It will help the researcher to understand the machinery of the system and will open the door to ideas about the successes and failures of the regional system. Finally, at a time when the regional system is experiencing a crisis of identity about its role, its objectives and its future,¹³ Davidson's book will serve as a `useful reminder to lawyers that much may be accomplished by legal creativity tempered by a sense of political realism' (p. vii).

Ariel E. Dulitzky
Harvard Law School
Center for Justice and International Law,
Washington D.C., 1996-998

3 C. Medina Quiroga, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System (1988).

4 T. Buergenthal, R. Norris and D. Shelton, Protecting Human Rights in the Americas: Selected Problems (1986).

5 The only exception is the recent volume, D. J. Harris and S. Livingstone (eds), The Inter-American System of Human Rights (1998).

6 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, Trinidad and Tobago, Uruguay and Venezuela.

7 Antigua and Barbuda, Bahamas, Belize, Canada, Guyana, St. Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and US. In other words, only common law, English-speaking countries are still reluctant to become full participants in the inter-American human rights system. The 10th country which has not yet ratified the Convention is Cuba. Resolution VI of the Eighth Consultative Meeting of Ministers of Foreign Affairs (1962) excluded `the present government of Cuba from participation in the inter-American system'.

8 Argentina, Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela. After the publication of Davidson's book, Mexico and Brazil accepted the contentious jurisdiction of the Court. The Dominican Republic announced recently its intention to accept the Court's contentious jurisdiction. That will mean that all of the Latin American countries will be under the jurisdiction of the Inter-American Court.

9 See generally, Vargas Carreño, `Las observaciones in loco practicadas por la Comisión Interamericana de Derechos Humanos', in Derechos Humanos en las Américas (1984) 290; see also Medina Quiroga, supra note 3.

10 For the practice of the inter-American bodies see Corte Interamericana de Derechos Humanos, Medidas Provisionales, Compendio: 1987-1996 Series E. No. 1 (1996) (listing all the provisional measures requested by the Inter-American Court between 1987 and 1996). See also Annual Report of the Inter-American Commission on Human Rights 1997, OEA/Ser.L/V/II.98 Doc. 7 rev. April 13, 1998, Original: Spanish, at 39 (describing the precautionary measures granted or extended by the Commission in 1997 involving 15 countries) and at 881 (mentioning the 10 cases regarding three countries where the Commission requested that the Court adopt provisional measures.

11 Cf. European Court of Human Rights, Cruz Varas and others v. Sweden, Judgment of 20 March 1991, Publications ECHR, Series A vol. 201 (stating that the interim measures are not binding to states parties) with Article 64.2 of the American Convention on Human Rights (granting the power to the Inter-American Court to adopt provisional measures to avoid irreparable damage to persons). See Padilla, `Provisional Measures under the American Convention on Human Rights', in Liber Amicorum Héctor Fix-Zamudio (1998) 1189.

12 For instance, on one occasion, Judge Buergenthal qualified the conduct of the Peruvian Government as `an abuse of the judicial process'. He found the petitions of Peru `ill founded and trivial ... whose sole purpose can only be to disrupt and delay the orderly and timely completion in the machinery established of the proceedings'. Inter-American Court of Human Rights, Case Neira Alegría et al., Requests for Revision and Interpretation of the Judgment of 11 December 1991 on the Preliminary Objections, Order of 3 July 1992, Declaration by Judge Thomas Buergenthal.

13 Méndez and Cox, `Prologue', in J. Méndez and F. Cox (eds), El Futuro del Sistema Interamericano de Protección de los Derechos Humanos (1998), at 9.

© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute.
This file was last modified: Wednesday, November 19, 2003 02:12AM