THE PEACEFUL DISPUTE SETTLEMENT OF HUMAN RIGHTS AT THE UNIVERSAL AND REGIONAL LEVELS, WITH SPECIAL REFERENCE TO THE INTER-AMERICAN SYSTEM*
Jorge Ulises CARMONA TINOCO**
Original Text (Spanish) PDF
I. Introduction. II. Peaceful settlement as a means to solve disputes in international human rights law. III. Perspective of the peaceful settlement of individual petitions in the Universal, European, and African systems of human rights protection. IV. The peaceful settlement of petitions in the Inter-American System of Protection of Human Rights.
The peaceful dispute settlements between States are one of the main aims of the international community. This is confirmed by the Preamble and article 33 of the United Nations Charter; the first one emphasizes this principle, and the Charter enumerates several procedures considered as peaceful means of solution of conflicts, for example: negotiation, investigation, mediation, conciliation, arbitration, court settlement, and the resort to regional organisms.
A way to give effect to the principle stated has been including specific means and procedures as part of the international treaties’ content, in order to solve the controversies that might come up in its application and observance of the fulfillment by the States parties. This is, apparently, the path followed in human rights issues, providing that some of the most relevant treaties of this nature contain specific mechanisms to solve inter-State and individual petitions about possible human rights violations, both considered as international controversies by contemporary international law.1
The procedure of inter-State petitions (State vs. State) tends to a peaceful dispute settlement that may turn out to be about execution and respect of human rights, in harmony with the principle of peaceful dispute settlement. Nonetheless, when it comes to the procedure of individual petition solution, the situation seems to be different, in that while at the universal level, a phase of peaceful settlement is not clearly expressed, this does appear in regional systems like the European and Inter-American. When it comes to the African system, this phase is not evident, following the example of the universal mechanisms, though, in the practice it is enhanced and applied.
The peaceful settlement in these cases, allows reaching a negotiated agreement among the State that is assumed to be responsible for a violation of human rights, and the alleged victim, under the supervision of a supranational body.
At the first sight, the possibility of achieving a peaceful settlement in cases of violations of human rights, seems incompatible with the "non negotiable" nature of this type of rights, as well as with the type of the State’s legal obligations in this issue. However, the mechanism has gained a growing importance in the solution of cases of human rights violations, when both the State and the victims are willing to solve the issue in advance, before the full procedure is finished, this way attaining an international sentence against the State, or in certain cases, an international sentence.
This has been a topic the doctrine has not studied thoroughly; in fact, it is only studied as part of more general studies about international human right protection systems. For this reason, in this work we intend to expose the most outstanding aspects of a quite controversial topic, as well as to define its nature, scope, limitations and future possibilities.
II. PEACEFUL SETTLEMENT AS A MEANS TO SOLVE DISPUTES
IN INTERNATIONAL HUMAN RIGHTS LAW
1. The principle of peaceful settlement of controversies in international law
The peaceful settlement of controversies (PSC) is a principle that aims to avoid the State resort to war and, in general, to reject the use of force as a means to solve disputes in international relations.2
The PSC is firmly recognized at the universal and regional levels. Within the United Nations, the principle is implicit in the preamble of the Charter3 which gave birth to the organization; a specific reference is made in certain precepts (articles 1.1, 2.3 and 52), and chapter VI is dedicated to regulate specifically the peaceful settlement of disputes (articles 33 to 38).4
The precepts of the UN Charter in this matter have been approached by some international instruments, as the 1949 General Review Act for the Peaceful Settlement of International Controversies; the 1970 Declaration on the Principles of International Law regarding Friendship Relations and Cooperation between States, in accordance with the United Nations Charter; the 1982 Manila Declaration on the Peaceful Settlement of International Disputes and Situations that might Endanger International Peace and Security and about the Role of United Nations in this Field: all of which have detailed and reaffirmed the validity of the PSC principle.5
At a regional level, the efforts in this field have not been less relevant; it is worth to mention that the PSC principle is included in articles 23 to 26 of the Organization of American States Charter, signed in Bogotá in 1948. Moreover, within this Organization’s framework, in April 30, 1948 the American Treaty of Peaceful Settlement, "Bogotá Pact" was adopted as a specific instrument on the subject.6
Among the relevant documents in Europe, besides the 1957 European Convention on the Peaceful Settlement of Controversies (ECPSC) are: the 1975 Final Act of the Helsinki Conference on Security and Cooperation in Europe, the 1990 Paris Charter for a New Europe, the 1991 Report of the Expert Meeting of the ECPSC on Peaceful Solution of Disputes, approved in La Valleta, and the 1992 Helsinki Document.7
With respect to the African Unity Organization, recently substituted with the African Union (created by constitutive document, subscribed in Togo the 11th of July, 2000), the principle was established in article XIX of its constitutive document, and was developed afterwards through the Cairo Protocol subscribed on July 21st, 1964.8 The document of the now African Unity moulds this principle in article 4 (e).
As we can tell, the PCS is a principle that is firmly rooted in the international level, and it is not strange that it exerts its influence also in the international human rights law. Evidently, in the human rights area the universal and regional agreements have not been the exception to the establishment of procedures to settle disputes in a peaceful way between the States parties, and even more, if we take into account that this kind of disputes may derive in situations that might endanger international peace and security.
The procedure of interstate communication, in some of the main universal and regional treaties, is the clearest example of the validity of the PSC principle in international human rights law. Additionally, some treaties of this nature include procedures that allow the presentation of individual complaints against a State, when it violates those rights contained in the treaty.9
Thus, precisely this kind of cases awake several issues, which might be reasonably valid and justifiable in case of a disagreement between States, or might not be in those cases where the State and the victim of human right violations confront each other, specially in matters of a heavier nature.
2. The nature of the procedure of peaceful settlement to human rights petitions
The peaceful settlement of human rights petitions is a figure that belongs to a broader category of means of dispute settlement. In fact, it is considered as a type of conciliation, which is one of the universally acknowledged methods of international controversy settlement.
It is not an easy task to accurately separate each of the procedures for the settlement of controversies, such as negotiation, investigation, mediation, conciliation, arbitration and judicial arrangement. However, the conciliation has certain features that distinguish it from the rest of the appointed mechanisms.10
Some authors state that this figure combines the characteristics of research and mediation;11 of the former, because it is a clarified matter, and of the latter because it intends to approach the parties in dispute in order to reach an agreement through proposals of solution to the matter, that are mutually accepted.12
The presence of this type of alternative solution, with respect to interstate petitions, is widely accepted; therefore the States are compelled to resort to it. Notwithstanding, as previously mentioned, the peaceful settlement may awake certain questions regarding its nature and pertinence in cases of human rights controversies between a State and an individual or group of individuals. In agreement with Cesar Sepulveda, it is hard to determine whether this type of controversies may be normally solved by means of peaceful methods, or if this procedure is only adequate for true and specific cases.13
To this author, the nature of the peaceful settlement is not clear either in the international instruments, or in the practice of the organisms that know it in that, while for some authors it is a similar method to the good offices, but to others, it entails major similarities with mediation.
We consider that conciliation has certain characteristics that identify more with the present status the peaceful settlement in international procedures of human rights protection. The procedure allows the conciliatory organ to approach the parties, investigate the facts, and even give some recommendations the parties may or may not accept.14
P. van Dijk and G. J. H. van Hoof stress that the procedure of peaceful settlement is a way of conciliation, but the latter is a term that applies mainly to cases of controversy between States. Therefore, these authors explain that the term "peaceful settlement" was chosen in order to embrace both interstate complaints, and the individual ones,15 which confirms that these ones share distinctive features with respect to the controversies between States.
In practice, it should be kept in mind that in human rights issues, the conciliatory organs are international supervision organs as well, reason why it is almost impossible to clearly separate both functions. The supervision organ does not only advance the possibility of a peaceful settlement, but it also approves and supervises the implementation of the settlement accomplished.
The peaceful settlement considered as a phase within the procedure of individual petitions, will be the main point of analysis in the following pages.
III. PERSPECTIVE OF THE PEACEFUL SETTLEMENT OF INDIVIDUAL PETITIONS IN THE UNIVERSAL, EUROPEAN, AND AFRICAN
SYSTEMS OF HUMAN RIGHTS PROTECTION
1. Outstanding issues of the peaceful settlement in the universal system
According to the status of the PSC principle in international law, it is clear that in human rights issues, States also have the duty to solve any dispute that may come up between them, in a peaceful way.
With respect to the controversies that may come up between the States parties of human rights treaties, some treaties include optional procedures to solve them. An example is the 1965 International Convention on the Eradication of every way of Racial Discrimination (ICRD), the 1966 International Pact of Civil and Political Rights (IPCPR); the 1979 Convention on the Eradication of all kinds of Discrimination against Women (CEDW); the 1984 Convention against Torture and other Cruel and Degrading Treatments or Penalties (CTC); the 1985 International Convention against Apartheid in Sports; and the 1990 International Convention on the Protection of all Migrants’ and their Family’s Rights (ICPMWF). Nonetheless, the procedure that is prosecuted before the Committee on Racial Discrimination does not require the States parties to make any additional declaration to the ratification; it is enough to acquire the duty to submit the controversies that come up to the Convention’s disposition to this matter. 16
On the other hand, among the UN treaties that establish mechanisms to solve individual petitions, there is the ICRD,17 the IPCPR through its facultative protocol (IPCPR-FP),18 the CTC,19 the CEDW through its facultative protocol (CEDW-FP) and the ICPMWF.20 In fact, a procedure of the same nature might be contemplated in the project of the protocol to the International Pact of Economic, Social and Cultural Rights (IPESCR).21
At the universal level, every international instrument mentioned share that they have established a committee, composed by a determined number of independent experts, in charge of the supervision and evaluation of the States’ fulfillment of the dispositions of the respective treaty, and solving the individual and interstate petitions that are presented.
Although the practical incidence of the procedure of interstate communication is materially null,22 it is important to mention that it is addressed to a peaceful settlement of the issue, which is its essence and ultimate purpose, whether it is left exclusively to States the chance to solve it or to allow the respective Committee to intervene in a more or less extent.
In these cases, the corresponding Committee shall play an active role in proposing the largest number of possible options that are necessary to reach a settlement between the parties in dispute. Moreover, this organ shall supervise that any settlement reached has to include the dispositions of human rights from the respective treaty; otherwise, the Committee would be supporting a situation contrary to human rights, whose respect it is legally compelled to supervise.
With regards to the procedure of prosecution and settlement of individual petitions, they do not seem to make special emphasis on the peaceful settlement of the issue. In fact, none of the mentioned treaties contains dispositions regarding the possibility of reaching a peaceful settlement between the State to which the violation is charged and the complainer or victim of the latter. The procedural rules of each of the mentioned Committees do not make reference to this possibility as well.23
This does not mean that the peaceful settlement in cases of individual petitions is forbidden. The possibility of reaching an "unofficial" peaceful settlement is not only theoretical,24 but it is a true option the respective Committee shall keep in mind itself or through the petitioner or the State, in order to supervise that the settlement reached is compatible with the international obligations of the State itself with respect to human rights, and that no one has taken advantage of the victim of the violations.
Should these extremes not be reached, the Committee would then be able to continue with the examination of the issue and in the moment, give the conclusions and recommendations to the State, including the evaluation of the settlement supposedly accomplished.
As a corollary, we may state that at a universal level, the human rights treaties that include a phase of peaceful settlement as part of the interstate complaint procedure, are in harmony with the principle PSC. On the other hand, this phase is not expressly stated when it comes to individual petitions; nonetheless, the real possibility of reaching a peaceful settlement in these cases, through which the corresponding Committee shall determine carefully its compatibility with the standards of human rights in force, before proceeding to refrain it.
2. Outstanding issues of the peaceful settlement of petitions in the European system of protection of human rights
The European system of protection of human rights has functioned primarily over the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF) signed in Rome on November 11, 1959 and set into force since September 3, 1953.25 This Convention has been modified in its substance and in the procedural aspect through the adoption of Protocols, the most transcendental of which is number 11 till today, coming into force since November 1998. This Protocol determined the establishment of a Permanent Court of Human Rights, substituting the previous system that had as main organs, the European Commission and Court of Human Rights.
Although interstate petitions indeed have been given a follow up in the European system, they have constituted a minimum number compared with individual petitions. The 1997 Report on Activities and Statistics of the European Commission of Human Rights, revealed since 1955 a total of 39,047 petitions. This number contrasts significantly with the total of only thirteen interstate petitions presented within the same period.
With respect to the specific topic of peaceful settlement to individual petitions, before and after the coming into force of the Protocol 11,26 this has played a particularly relevant role. Indeed, the peaceful settlement relative to individual petitions has been a procedure stipulated since the adoption of the CPHRFF.27 In fact, it has been appointed that the process of peaceful settlement is perhaps the central piece of the Convention.28
S. Davidson cites Sir Humphrey Waldock’s opinion, who was the President of the European Commission of Human Rights:
The writers of the Convention were right in making the peaceful settlement the central remedy within its structure. He stated: the investigation of the State’s flaws concerning human rights is a very delicate way of intervention in internal issues. The primary duty of the Commission is to conduct confidential negotiations with the parties and try to amend any violation to human rights that might have occurred. It was not mainly established with the purpose of putting the States against the wall and provoke condemns against them. Clearly, the Commission shall be an intermediate means and it shall not seem to incline in favor of any of the parties in detriment of the other, although it might be perceived that the conciliatory function allows the States to sometimes escape lightly.29
This opinion is useful to build the roots and nature of the peaceful settlement with respect to individual rights, which has had an outstanding incidence. The 1997 Report of Activities and Statistics of the European Commission of Human Rights, show the incidence both in the Reports on the merits of the case, as those of peaceful settlement sent to the Committee of Ministers from 1955 to 1997. While the reports of the merits of the case reached a total of 2792, those regarding peaceful settlements only reached 369, that is, around the 13 percent.
Clements states, "In the first 26 years of the Convention, peaceful settlements were uncommon. The fact that now they are presented more frequently is because of the precedents derived from the sanctions and reports of the Commission, and the Court’s sentences. The development of an extensive jurisprudence has located the parties in a much better position to predict the possible result of a case before the Court".30
The most recent data confirms the importance this type of settlements has acquired, under the new scheme derived from the coming into force of Protocol 11, during 1999 the European Court of Human Rights pronounced 177 verdicts of the merits of the case, 42 of which were meant to strike off the case list to an identical number of petitions. This last number includes 37 peaceful settlements, 3 arrangements and 2 additional cases stroke off the list with no specific reason.
In 1999 there were 177 sentences and 42 assessments on peaceful settlements; in 2000, there were 446 sentences of the merits of the case and 230 peaceful settlements; in 2001, 725 sentences of the merits of the case and 151 peaceful settlements; in 2002, 665 sentences of the merits of the case and 151 peaceful settlements; finally in 2003 there were a total of 548 sentences of the merits of the case and 128 peaceful settlements. As we can see, regarding only sentences of the merits of the case —whether or not the State was found guilty— the peaceful settlements represent a similar amount, around 20 percent of the sentenced cases.
In practice, the procedure is characterized by its confidentiality and informality in the negotiations, which invite the parties to expose their positions in a more sincere and free way aiming to reach a peaceful settlement. Several authors31 assert that the parties were more prone to accept the possibility of reaching a peaceful settlement, in the cases where the Commission decided to make use of the faculty determined by article 55 in its 1993 Regulations. This disposition authorized the Commission to deliberate in order to accomplish a provisional opinion about the merits of the case.
The provisional opinion reached, orally and confidentially notified to the parties, might indeed stimulate their will to reach a settlement.32 The faculty of generating and communicating a provisional opinion of this nature, has apparently prevailed under the new framework derived from Protocol 11.33
The Commission, and now the new Court, had faculties to approach the parties either in a formal or informal way, either separately or together, depending on which is the most favorable possibility to reach a peaceful settlement.34
Two additional factors contribute to reach a peaceful settlement between the parties: one of them is the flexibility and the informal nature of the procedure, which helps to create an atmosphere in which the parties can reach a compromise easier. In this context, the fact that the consideration of the petition by the Commission takes place in private is an important issue.35 This factor is also applicable in present procedure before the Court.
The second factor is that the opinions, offerings, and positions of the parties during the phase of peaceful settlement, were not taken into account when it came to decide about the merits of the case. Even in the phase before the Court, it was said that the parties are not free to divulge in their oral and written communications, the offerings made or the positions adopted during the discussions about the peaceful settlement.36
At present, with regards to article 38.2 of the CPRHRFF, the procedures that take place during the phase of peaceful settlements shall be confidential. When the negotiations come to a successful end, the settlement reached is usually formalized through a bill exchange among the parties. Then, the parties shall address their efforts to the fulfillment of the arranged terms.
Apart of the absence of rigid formalities during the negotiations of a peaceful settlement, article 28.1.b of the CPHRFF set a substantial requirement every peaceful settlement had to fulfill: to agree with the respect of human rights defined in the European Convention. According to the content of the new article 38.1.b, the peaceful settlement shall be, also, according to the Convention’s Protocols (it makes reference to those with a substantial character).
It should be stressed that usually, the peaceful settlement includes a clause through which the State rejects the acknowledgement of its responsibility, and that their compromises are based in their "good will"; it is also included that the petitioner resigns to present any kind of complaint or start any subsequent procedure about the issue. This is nothing but the evidence of how difficult it is, even in these cases, to make the State to fully accept its responsibility in the happenings.37
States are often aware of not going further of the strictly necessary in the compromises they acquire, specially when it comes to those that depend on the decision of internal jurisdictional organs or on the adoption of general normative dispositions.38 Despite the latter, the State in toto is the one that shall respond to the violation committed, not only one of the government’s branches in turn.
P. van Dijk and G. J. H. van Hoof state that in certain cases the governments are tempted to offer only a sum of money to give an end to the case, as if they wished to buy the violation, while its origin, for example in the form of a legislative disposition or a governmental practice that goes against the Convention, would continue existing.39
Once the settlement is reached, under the framework previous to the Protocol 11 in force, Clements points out that the peaceful arrangement discussed during the procedure before the Commission, was not supervised by the Committee of Ministers, and even more, the Convention did not include any supervision mechanism for the implementation of the settlements.40
However, some authors state that, leaving apart some bureaucratic delay, the State usually fulfills the compromises acquired.41
It has been said that the peaceful settlement might also take place in the Court or before the Committee of Ministers (in those cases that were not being prosecuted by the Commission before the former).42
The central role the peaceful settlement of individual petitions has played in the practice of the European system of protection of human rights is quite clear, in that it has been a figure included and regulated expressly since the beginning of the system up to now. Since it is the means through which approximately the fifth part of the cases are solved, it entails a growing relevance; it is even an option that shall be enhanced more intensively by the Court itself, in order to somehow alleviate the hard situation of the enormous number of issues that obstruct its agile functioning.
3. Outstanding issues about the peaceful settlement of petitions in the African System of Protection of Human Rights
The functioning of the African system of protection of human rights rests mostly in the African Charter of Human and Peoples’ Rights (ACHPR), adopted in Banjul on June 27, 1981 coming into force on October 21, 1986, and from the institutional point of view on a Commission,43 and more recently, also in an African Court indicated in an Optional Protocol to the African Charter, in force since January 25, 2004.
Similarly to the mechanisms that operate in the universal and regional systems of human rights, the African system entails procedures to prosecute interstate and individual petitions. The procedure to solve interstate petitions is really a cluster of distinctive features of universal and regional systems.
Like the systems described in the present work, the procedure of interstate complains includes the possibility of reaching a peaceful settlement between the parties in the controversy.44
A State that decided to extend a communication against another State for human right violations may do it communicating it only to the African Commission, or it may address the latter directly.45 In the first hypotheses, the Convention establishes that the issue shall be solved in satisfaction of the States involved through bilateral negotiations or any other peaceful procedure; once this phase has been exhausted, if it has been unsuccessful, then any State has the faculty to present the case before the Commission.46
The role the Commission plays is mainly conciliatory, thus, it shall try through all the possible means to reach a peaceful settlement based on the respect to human and people’s rights.47
With respect to the procedure of individual procedures within the framework of the ACHPR, even when it contains dispositions of similar content to other systems of petitions, it has its own distinctive characteristics. Some of them are the possibility to present complains about violations to economic, social and cultural rights contained in the ACHPR, and in cases that might reveal the existence of a series of grave or massive violations to human rights.48
Under the title of "other communications", the ACHPR establishes that a complaint may be taken into consideration if the petitioner has certain formal and substantial characteristics, among which there are the exhaustion of internal resources, the presentation on time and that the case is not being considered by other mechanisms of arrangement.49 Moreover, the Commission decides ultimately which communications shall be considered and which shall not.50
It was only after the Seventh Annual Report (1994) on the activities of the Commission, that it included a summary of the cases judged on individual petitions.51 Neither the Commission’s 1995 Regulations nor the one adopted in 1998 are helpful to clarify the practical operation of the procedure. Nonetheless, what is quite clear is that a phase of peaceful settlement is not expressly indicated in the consideration of petitions different to those between States.52
Despite this, the Commission has begun to encourage the peaceful settlement to individual petitions, which lead U. Oji Umozurike to affirm that the power of the Commission as the Charter determines, lies in the peaceful settlement.53
E. A. Ankumah points out that "from the letter and spirit of the Charter it is clear that the Commission may make attempts to fulfill a peaceful settlement at the same time that it carries out its investigation and elaborates its conclusions with respect to the merits of the case".54
The Commission has established in certain number of cases that "the main objective of the procedure of communications before the Commission is to start a possible dialogue, resulting in a peaceful settlement between the complainer and the State involved, which shall repair the prejudice, object of the complaint. A requirement to solve peacefully the violations to the Charter is the goodwill of the parties involved, including their will of participating in a dialogue".55
From 1986 to 1997 the cases that have reached a peaceful settlement include one that bases on the violation for illegal prison (11/8 Henry Kalenga vs. Zambia);56 one on electoral irregularities (44/90 People's Democratic Organization for Independence and Socialism vs. The Gambia);57 one about problems regarding political prisoners (16/88, 17/88, 18/88 Comité Culturel pour la Démocratie au Bénin, Badjogoume Hilaire, El Hadj Boubacar Diawara vs. Benin);58 and one in which the solution was still pending but under the framework of peaceful arrangement (71/92 Rencontre Africaine pour la Defense des Droits de l’Homme vs Zambia).59
In the annual reports of activities number 11, and 12 that cover the period between 1997 and 1999, no peaceful settlements were reported. However, in the subsequent annual reports, even in the most recent one, that includes activities in 2003 (16th), we can see a growing incidence of peaceful settlements to individual petitions. This allows predicting that this type of arrangements would be an attractive option for the victims and the States themselves, supported and encouraged by the African Commission and that perhaps will also be relevant in the procedure before the African Court, once it begins to function.
IV. THE PEACEFUL SETTLEMENT OF PETITIONS IN THE
INTER-AMERICAN SYSTEM OF PROTECTION OF HUMAN RIGHTS
The operation of the Inter-American system of protection of human rights lies institutionally on a Commission and Court of human rights.60 The Commission supervises the States’ fulfillment of the dispositions of the American Declaration of Human Rights and Duties (ADHRD), and basically, the American Convention of Human Rights (ACHR)61 to those States that have ratified it, besides other Inter-American treaties.62
The Inter-American Commission of Human Rights (ICHR) was established in 195963 and a couple of years later, in 1965 it enabled to prosecute individual petitions.64
The ICHR was the only supervision organ in the system since its origin till 1978 when the ACHR came into force in 1969, establishing the Inter-American Court of Human Rights as an additional organ. The ACHR includes mechanisms to prosecute both interstate and individual petitions. It shall be stressed that the institutional framework of the system is inspired in the European system, which started operating about 25 years before. Besides the latter, before Protocol 11 came into force, which substantially modified the European system of protection of human rights; both systems shared a similar institutional structure to prosecute petitions, although with distinctive characteristics, specially regarding integration of the organs, and decisions of the merits of the case and supervision of sentences by the European Committee of Ministers.
The norms that regulate the prosecution of individual petitions in the Inter-American System vary according to the ratification or not of the ACHR by the corresponding State. To those States parties, the central scope of action is constituted by the American Convention itself, which establishes the basic rules of procedure for the prosecution of petitions.65 With respect to the rest of the States in the continent, the petitions made shall be founded in some of the rights included in the ADHR (in accordance with the Statute, article 20, and the ICHR Regulations, articles 49 and 50), the procedure in both schemes is similar in almost all their phases.
Contrary to the procedure based on the European Convention, inter-state complaints in the Inter-American System require a previous acceptation of the States of the Commission’s competence, in order to be able to prosecute them. With respect to the procedure of individual complaints, the States do not have to make such a declaration. However, in order to a case be presented by a State party of the ACHR or by the Commission before the Inter-American Court, the State to which the violation is attributed should make a declaration of acceptance of the contentious competence of the Court.66
The phase of peaceful settlement is part of the procedure of interstate and individual petitions within the framework of the ACHR, but it is not expressly included in the case of petitions presented within the framework of the ADHR.
2. Antecedents and evolution of the procedure of peaceful settlement of petitions
Cesar Sepulveda, who was Commissioner of the ICHR for around twenty years, considers that both the European Convention and the International Pact of Civil and Political Rights influenced on the introduction of the ACHR’s procedure of peaceful settlement.67
Article 48.1.f of the ACRH states that the Commission: "shall be put at the disposal of the concerned parties, in order to reach a peaceful settlement founded on the respect of the human rights recognized in this Convention".
This statement is almost identical to the one included in article 28.1.b of the European Convention of Human Rights68 (now article 38.1.b of the new text derived from Protocol 11).
Despite this, the distinctive characteristic of the procedure since its introduction in the ACHR has been its scarce utilization and the lack of clear and detailed rules.69 In fact, the way the procedure operates is completely based in the practical experience gradually obtained by the ICHR.
Cesar Sepulveda asserts that the first attempt to reach a peaceful — yet fruitless settlement occurred in 1981 in a case against Peru, whose government had expropriated some newspapers. The proposal of reaching a settlement came from the government in power, which decided to solve by itself the issue supposedly in favor of the victims. The ICHR launched proposals of this kind of settlement in three different cases, but in none of them was the arrangement successful.70
One of the best-known cases in which the Commission had the chance to develop its attributions with respect to the peaceful solution was the case of the Miskitos. This issue took place due to several violations of human rights committed in 1981 by the Government of Nicaragua against some people of Miskito origin. The case involved transgressions to several human rights, such as: affectations against the personal freedom, integrity, due legal process, freedom of movement and residence, and property rights. Besides, the complexity of the case increased due to the deeply rooted historical and social problems that surrounded it.71
The ICHR’s exhortation to reach a peaceful settlement was accepted by the parties, but after nearly two years of implementing important steps to solve the issue under this scheme, some problem lead the Commission to decide that there were no conditions to continue with the procedure of peaceful settlement.72
The ICHR stated in its decision on the procedure of peaceful settlement, that among the reasons to bring an end to it, were the impossibility of accomplishing a settlement that gave legitimate representation to the Miskitos community, and also the sustenance of peaceful talks between the parties. Moreover, the ICHR expressly acknowledged that among the obstacles that prevented a peaceful settlement, were the circumstances out of the control of the government of Nicaragua.73 Despite the peaceful settlement was unable to be reached in this case, the ICHR definitely enriched its own experience with respect to this type of procedures.
Afterwards, the ICHR Publisher in 1984 its Report about the merits of the case, in which it declared the responsibility of the Nicaraguan government for the violations against the human rights of the Nicaraguan population of Miskito origin, and issued the corresponding recommendations.74
In Christina Cerna’s opinion, the extended abstention of the ICHR to officially assume its role in the peaceful settlement of cases was caused by the following factors: first, the Commission, created in 1959, have not completed its full adaptation to the new rules imposed by the coming into force of the ACHR in 1978; second, the type of documented and reported violations by the ICHR were of such nature that they seemed incompatible with any peaceful settlement; finally, no procedure of peaceful settlement was formally set into force before the coming into force of the ACHR.75
The dispositions of the ACHR about the peaceful settlement remained undetermined until the approval of the ICHR Regulations in 1980. However, this turned out to be insufficient to fill the gaps in the subject.76 In fact, some proposals to improve the procedure of peaceful settlement owe much of their inspiration to the experience obtained thanks to the Miskitos case.77
The modifications done to the ICHR Regulations in 1985 and 1987 gave the procedure of peaceful settlement, the bases for its prosecution.78 It shall be stated that these modifications covered almost literally the proposals and recommendations made by Cesar Sepulveda, beginning from the mentioned case.79
The Regulations of 1980 were substituted by new ones (approved in
December 2000), in force since May 1st, 2001, which details the prosecution of peaceful settlements in article 41.80
The new regulation purged the procedure making it more clear and flexible at the same time with respect to the performance and criterion of the ICHR with respect to the complexity of each concrete case. Among the most relevant modifications, is the fact that the peaceful settlement shall agree not only with what the ACHR status, but also with the dispositions of the ADHR and those of the international instruments of human rights that are applicable (article 41.1), with which they are understood to be included even those that have universal character. This would enable to accomplish more extensive agreement, the implementation of a larger number of international human rights instruments (including those that do not contain procedure of petitions), and it would require a more thorough and broader analysis of each case by the ICHR.
In the 1980 Regulations, if a peaceful solution was reached, the Report elaborated by the ICHR had to be transmitted to the General Secretary of the OAS for its publication; in the 2001 Regulations, according to article 41.5, the Commission itself is the one that has the faculty to do so.
The victim and its relatives play an important role in the new scheme, in that the ICHR shall verify beforehand, the approval of the Report on the peaceful settlement reached of those who have expressed their consent in the settlement. The parties involved normally subscribe this, and by certain member of the Commission as soon as the respective exchange of communications and the respective negotiations have taken place, with the aim to be formalized.
Finally, the new article 41.6 points out expressly that the ICHR shall continue the examination of the petition if a peaceful settlement of the case is not reached. As we can tell, without modifying one single word of the ACHR, the 2001 Regulations have reoriented the meaning and reach of some of its stipulations.
On the other hand, regarding the incidence of peaceful settlements of individual petitions in the Inter-American system, this was so scarce that they were not even regularly considered in the annual reports of the ICHR activities. It was precisely since the Annual Report of activities corresponding 1997, when the Commission decided to include, besides the Reports of the merits of the case relative to individual petitions, the whole system of petitions of individual cases before the Commission and the Court (reports of admissibility, inadmissibility, cautionary measures, peaceful settlements, cases and issues presented before the Inter-American Court).81
In the following chart, we can see the cases that were being prosecuted under a peaceful scheme per year.82
In the next chart, we can see the amount of reports of peaceful settlement that were published.
The number between cases being peacefully prosecuted, and published reports contrasts enormously and shows the long time existent between the negotiation, the formalization of the settlement, and the implementation of its terms.
On the other hand, the countries with least amount of reports of peaceful settlements are: Ecuador with 22 cases, Argentina with 5, Guatemala with 4, Peru with 3, Chile with 2, Colombia with 2, Mexico with 2, Brazil with 1, and Paraguay with 1. Taking into account the number of cases being prosecuted, these numbers are not a definitive indicator of which country is the most prone to the peaceful settlement of cases, although the case of Ecuador is undeniable.
In the next chart we can see the total amount of cases being prosecuted per year (left chart) compared to the number of cases of peaceful settlement being prosecuted (right chart).
In the subsequent paragraphs, describe the phase of peaceful settlement will be described, with conformity with the regulations in force, without taking into account that the interstate and individual petitions are regulated by the same dispositions that the ACHR (article 46).
3. Analysis of the procedure of peaceful settlement
Once a petition is admitted for its prosecution, a phase of establishing the controversy begins as well as the corresponding positions of the parties, which ends in the determination of the ICHR about the requirements to the formal admissibility of a petition. This shall be declared once they have satisfied several formal and substantive requirements, such as, in general terms, that in case the facts are true, they would be a violation to the rights that are object of the system of petitions; the previous exhaustion of domestic remedies; that the petition has to be made on time; and that it shall not be examined by another international procedure83 or, should that be the case, to update some of the exceptions to the satisfaction of some of these requirements. The declaration of admissibility of a petition opens the phase of study of the merits of the case, and also the possibility to reach a peaceful settlement.
It should be stressed that although the ACHR itself determines the peaceful settlement (article 48.1.f), it does not offer more elements about the procedure that shall be followed in these cases.
Article 45 of the 1980 ICHR Charter seems to go further in that it does not only authorize the parties to request the offer of the ICHR about the possibility of a peaceful settlement, but they may do it "in any phase of the prosecution of a petition". Nonetheless, up to now it is common that the peaceful settlement is reached before the Commission publishes its final report about the case, precisely after the admissibility report was launch (in case there was such).
In contrast, the Regulations in force (article 41), omits making reference to such aspect, from which it is inferred that the peaceful settlement might take place in any phase of the prosecution of an issue under the consideration of the Commission, and even in subsequent phases to the decision of the latter.
In this last supposition, it would be a peaceful settlement for the fulfillment of the Commission’s recommendations.
In the following paragraphs, we will make reference to the procedure in accordance with the ICHR Regulations in force and only exceptionally will we make reference to the 1980 Regulations.
Filling in some of the ACHR gaps, the Regulations of the ICHR in force determines that the peaceful settlement may only be possible if both parties agree. Therefore, if the opportunity of a peaceful arrangement is given by the ICHR, then the final decision of whether the issue is solved or not in a peaceful way, lies completely on the parties’ will. At present, the parties’ will is demanded during all the procedure of peaceful settlement, for any of them or both could request at any time, the anticipated ending of this or the lack of application of the agreement (article 41.4 of the ICHR Regulations).84
In such sense, if the proposal of peaceful settlement is accepted by the parties, the Commission shall act as conciliator; with this aim, it may commend one or more of its members, the task of facilitate the negotiation between the parties.
In practice, the moment in which the Commission puts itself expressly at the disposition of the parties in order to bring a peaceful settlement to the issue, if that were their wish, the formal admissibility of the case is declared in the report, that is, once it is determined that it has all the requirements to be decided about the merits of the case by the Commission. In cases of flagrant and evident violations, a solution may be offered even during the phase of initial prosecution of the petition.
The audiences convoked by the ICHR as a part of the prosecution of admissibility of petitions, or after this, are a good moment to suggest the possibility of a peaceful settlement. Frequently, when facing the personal or the members of the Commission, the victims might feel more confidence, and the government might be "inclined" to show its will to solve the issue in a peaceful way, specially if there are no decisive elements for its defense.
Normally, the petitioner and not the State is the first that accepts the invitation of the ICHR. With this purpose, the former sends the Commission the terms under which, in its own view, an agreement could be reached. These could include actions the government shall adopt, the deadlines, the form of supervision, and the basis to determine the compensation of the victims, or the total amount.
Once the ICHR communicates the proposal to the State, it issues its observations and comments about the chances of a peaceful settlement, its will to solve the issue by these means, and specially, under the terms determined by the petitioner. Of course, there is not always an agreement about the points suggested by it.
If both parts show interest in reaching a peaceful settlement, then a phase of informal communications and negotiations between the parties begins. The negotiations could lead to a written agreement, or on the opposite, to continue with the prosecution of the complaint in the phase it is found at that moment.
The phase of negotiation sometimes shows not only the goodwill of the parties, but also the true ends in their respective positions. The petitioner’s ability to negotiate is the most important thing, in that the government normally offers that to which it is legally bound in terms of the ACHR. The assistance of specialists is important with respect to the scope of the terms of the proposed settlement.
Afterwards, if both parts accede, the agreement is elaborated written and subscribed by the respective representatives, and by the members of the ICHR in charge of monitoring the fulfillment of the compromises acquired. About this point, José Miguel Vivanco points out that "the terms of a peaceful settlement shall be approved by the Commission in order to guarantee that they agree with the purpose and end of the Convention"85 and in practice, in fact it is.
We shall stress here that every settlement susceptible of being peaceful should be founded on the respect to human rights, not only of those involved in the corresponding case, but in the general framework indicated by the ACHR, and also by the American Declaration and other applicable instruments (article 41.5 of the ICHR Regulations).
The ICHR should make its best effort to sep the issue within a peaceful framework, except if it finds applicable one of the causes of anticipated abatement of such proceedings, for example: if according to the nature of the issue, it is not susceptible of a peaceful settlement; this could be the case of human rights violations considered as of least humanity or specially serious; or that the ICHR finds that any of the parties does not agree with the application of a peaceful procedure; or that any of them does not show willingness to reach or fulfill a peaceful settlement compatible with the respect of human rights; or that the State seeks with the settlement only to delay temporarily the issue and so the definitive solution to the case.
Should a similar situation come, the Commission is able to put an end to its intervention, together with the possibility of a peaceful settlement, since such decision leads to continue with the prosecution of the case in the phase it is at that moment (Regulations ICHR in force, article 41.4 and 41.6).
Subsequently, if the peaceful settlement is accomplished, the ICHR should approve a report in which the facts are exposed briefly and the settlement is fulfilled. Such report, before being published, shall be transmitted to the parties and the full consent of the victim or his relatives’ shall be respected regarding the peaceful settlement (Regulations of the ICHR in force, article 41.5).
On the contrary, if the peaceful settlement is not reached, the Commission shall, within the deadline of 180 days established by its own Statute, elaborate the Report that contains the facts, conclusions and recommendations.86 The Report shall be transmitted only to the State to which the violation is adjudicated according to article 50 of the ACHR, which is not authorized to publish it.87
Should the State decide not to accept the ICHR’s recommendations, or if accepting them, does not fulfill them in the terms established by it, some of the following consequences may come up: 1) that the Commission decides to issue and publish a second Report that is definitive, called "Report of Article 51" for being contained in this precept of the ACHR; 2) that the commission or any State (when it comes to a interstate petition), present the case before the Inter American Court of Human Rights,88 only if the State appointed as responsible had accepted the contentious competence of the latter.
We shall point out that although the decision on admissibility can be published in a report,89 the rest of the procedure goes by confidentially until the terms of what was established are fulfilled and a report is published, or if the definitive report on the merits of the case is published, or the case is presented as a lawsuit before the Inter American Court.
Concerning the execution of the agreement, of the peaceful settlement, it lies exclusively in within the ICHR; it has been extremely careful in not publishing any peaceful settlement reached before the States have given evidence of the substantial actions they have taken, and once the petitioner has shown conformity towards them.
If the State does not fulfill its compromises, the commission may decide to continue with the prosecution of the petition. The ICHR’s report on the merits of the case may contain a description about how did the peaceful settlement procedure went by, the reasons to interrupt it and the decision of continuing a normal procedure, which exposes the State to an even worse condemn, since the unfruitful solution of peaceful arrangement might be an indication of a questionable tactic of delay of that State.
The ACHR’s dispositions are applicable only regarding to peaceful settlements accomplished before the ICHR. None the less, as in the European system framework, the parties may reach an agreement once the issue has been known by the Inter American Court. There are no indications up to date that this has happened, but the Inter American Court’s 1997 Regulations —prior to the one in force approved in November, 2000 that came into force since June 2001— already had certain dispositions about such a possibility.90
The Regulations in force of the Inter American Court make reference to the peaceful settlement within Chapter V called "anticipated termination of the process", specifically in article 53 which status literally: "When the parties in a case before the Court inform it about the existence of a peaceful settlement, of an accession or another ideal fact to the solution of the litigation, the Court could then declare that the issue has reached an end".
Among this type of cases we would find those in which the agreement reached is not compatible or does not satisfy the established rights protected by the Inter American System, or when there is evidence that the victim was somehow pushed or put under duress to accept the terms of the settlement.
The updating of some of the hypotheses stated is not sufficient to the Court simple puts an end to the issue, since article 54 establishes that such Tribunal has the faculty of proceeding with the examination of the case in the light of the responsibilities it has of protecting human rights.
As it can be perceived, the described procedure essentially keeps the same characteristics of the peaceful settlement within the ECHR framework. However, within the Inter American System there are relevant questions on the relevant and scope of the dispositions that regulate the procedure, which will be analyzed in the following paragraphs.
4. The phase of peaceful settlement; a duty or only a faculty of the ICHR?
The peaceful settlement in the European system is a fixed phase that shall be exhausted in order to continue with the petition examination, thus, to offer the possibility of accomplishing an agreement of this nature is not something merely discretional, but an obligation.
Although the Inter American system has almost identical rules to the European system, the Commission’s duty of inviting the parties to explore the possibility of a peaceful settlement has been questioned. Can the ICHR discretionally omit the phase of peaceful settlement?
This gives place to two different interpretations. Andrés Aguilar points out regarding article 48.1.f of the ACHR: "from the wording of this disposition we can clearly tell that it is an obligation and not only another faculty of the Commission";91 José Miguel Vivanco asserts that "only recently did the Commission understood that it is an obligation";92 finally, Christina Cerna considers that "since the core notion of the Convention is around the conviction that disputes on human rights may be solved, the Commission shall not set itself in an a priori position that excludes certain kind of cases due to the nature of the violations involved, since the Convention itself does not establish such a hierarchy".93
A different interpretation might be that not all of the cases and not to all types of violations of human rights are susceptible of being solved peacefully. According to this interpretation, it is up to the ICHR to determine which cases give the chance to propose a peaceful settlement and which do not; in this last situation, the ICHR shall not even consult the parties about this, which could be understood in the phrase: "in all the cases, the peaceful settlement shall be founded in the respect of human rights recognized by the American Convention of Human Rights, the American Declaration and other applicable instruments" (article 41.5 of the ICHR Regulations in force).
When the ICHR reformed in 1985 its Regulations of 1980, it followed the second tendency. Therefore, article 45.7 established: "in case the Commission finds, during the prosecution of the case, that given its nature, is not susceptible of reaching a peaceful arrangement… in any phase of the procedure it shall declare that its role as a conciliatory organ for the peaceful settlement is over".
The Regulations in force changed the "duty" expressed by a "potentate" (article 41.4), emphasizing the Commission’s discretion to determine the path to follow assisting the various factors that may influence a determined case.
The Inter American Court has had the opportunity to refer to the topic in its first cases against Honduras, that was the case of Velásquez Rodríguez, Fairén Garbi and Solís Corrales, and Godínez Cruz.94 In all these cases the Court declared:
From a literal point of view, the phrase used by article 48.1.f of the Convention, the Commission "will be at the disposal of the Parties concerned in order to reach a peaceful settlement", seems to establish a compulsory prosecution. However, the Court considers that an interpretation, according to the Convention’s context, leads to the convincement that this action of the Commission shall be implemented only when the circumstances of a controversy determine the need or convenience of using this instrument, supposed subjects to the Commission’s consideration.
In the case Caballero Delgado and Santana the Court confirmed its criteria stating that:
The latter means that the Commission has discretional faculties but not arbitrary ones at all, to decide in each case, if the procedure of peaceful settlement is adequate or convenient to solve the case benefiting the respect of human rights (Case Velásquez Rodríguez, Preliminary Exceptions, parr. 45; Case Fairén Garbi and Solís Corrales, Preliminary Exceptions, parr. 50; Case Godínez Cruz, Preliminary Exceptions, par. 48).95
The Court’s decision supported the interpretation the ICHR had given to article 48.1.f of the Convention, which stated in the corresponding section of its Regulations. However, the Court clearly stated that the faculties of the ICHR were not absolute at all.
Afterwards, the Court had the chance to enrich its analysis on the peaceful settlement in the known case Caballero Delgado and Santana, in which the Court established:
...the Commission does not have the arbitrary faculties in this matter. It is very clear the intention of the Convention with respect to the conciliatory role the Commission shall play before a case is sent to the Court or published.
Only in exceptional cases, and naturally, with supporting reasons, may the Commission omit the procedure of conciliation because the protection of the victims’ rights or those of their relatives is involved. It does not seem enough to say, as the Commission does, that this procedure was not taken into account simply given the "nature" of the case.96
In addition, the Court referred to the ICHR’s role regarding the peaceful settlement, in the following terms:
In a procedure of peaceful settlement, the intervention and decision of the parties involved is quite necessary. Even interpreting literally the dispositions of the Convention and ignoring the Commission’s Regulations, this might only suggest the parties to settle dialogues leading to a peaceful settlement, but it might not decide it due to its lack of power to do so. The Commission shall foster the approach, but the results do not depend on it. Should the agreement be reached, it shall make sure that the human rights have been defended adequately97 (italics added).
According to Christina Cerna, this decision modified the practice the Commission followed until that moment because since then, it would be addressed to the parties in order to know their will to reach a peaceful settlement. If one or both parties turned down the Commission’s invitation, this one would seldom make the additional efforts to suggest an agreement or to reach it; thus, it seems like the parties’ will and not the exclusive determination of the Commission was the one that determined the possibility of a peaceful settlement.98
Actually, the ICHR’s efforts with respect to the peaceful settlement procedure, have obeyed the nature of the cases they had to face, and the States’ attitude when they are judged as transgressors of human rights. Even more, it seems that the States’ intention to contest the Commission’s position in the cases before the Court, have been directed to fulfill their inadmissibility, reason why their arguments tend towards this purpose and not towards the improvement of the system in favor of the victims.
5. Some advantages and disadvantages of the peaceful settlement of petitions of human rights
The peaceful settlement as an alternative way of solving a petition of human rights has some advantages and disadvantages for each of the parties involves, specially compared to the options of final termination of the procedure of petitions, that is the issuing, publication and follow up of a definitive report, or the submission of the case to the Inter American Court and the issuing of a condemning sentence for the State.99
The advantages of the peaceful settlement are clearer if the nature of the case allows it, and if the will, positions, and the parties’ objectives are in favor of solving the case this way. Some positive and negative aspects are the following:
To the State involved, the peaceful settlement means limiting the political damage an unfavorable and widely published sentence of the Court may provoke and perhaps limit the cost involved in continuing the defense of a lost consideration.100 Even more, a generous agreement in favor of the victim may put the State as object of positive opinions regarding its compromise towards human rights, despite the violation committed. As the Inter American Court of Human Rights has stated:
If a party is interested in a peaceful settlement, it may propose it. In the case of the State and facing the aim and purpose of the treaty, which is the defense of the human rights protected by itself, this proposal could not be understood as an acknowledgement of the responsibility, but, on the contrary, as a goodwill fulfillment of the Convention’s objectives.101
States normally analyze carefully the consequences of a peaceful settlement, taking into account the international and internal impact of the case. Unfortunately, not always is the possibility of remedying a damage the only factor put into consideration.
With respect to the petitioner, the benefit might be the certainty about the subject of dispute, and in the most anticipated moment possible, of the reparation, if it turns to be appropriate, for the resulting damages.102 Moreover, the peaceful settlement assures a positive conclusion that would otherwise depend on show procedures, that do not assure a favorable sentence;103 yet, the flexible character of the peaceful settlement procedure allows the negotiation of different terms, reason why, it may or may not include a reparation in money and/or legislative or administrative actions; the arrangement may embrace more than what a judicial condemning decision could offer.
Despite this, the benefits mentioned in favor of the victims seem to be always relative. Some factors shall be taken into consideration: the long path they have to follow until they get that to what they deserved since the beginning of the case; the extensive legal resources and procedures that shall be exhausted; and the cost and time that shall be destined in order to come to international authorities.
Taking in mind these factors, whose incidence is frequent, no reparation or compromise would be enough to compensate completely the direct and indirect consequences of a violation of human rights. When the State shows its will to do what it is actually obliged to do according to international human rights law, any peaceful settlement of such nature seems the worst joke both to the victim or the petitioner, and to the international supervision organs.
It could be argued that the situation could be worse if the States have not had the will to compel themselves through an international treaty, or that the international mechanisms were created to prosecute only the worst and most exceptional cases. None the less, these same arguments are in favor of model peaceful settlements and of the resulting preventive measures within the corresponding State, in order to avoid that the violation committed is repeated.
To the supervision organs, the peaceful settlement helps to reduce the number of cases to decide, and to the whole system, such type of arrangements might motivate the rest of the States parties to follow a similar route.104
Taking into account the poor situation of the States’ fulfillment of the compromises assumed in human rights treaties, there is no doubt that the peaceful settlement of petitions seems to be a valuable option, but it surely is the only one the victims sometimes have to obtain any reparation.
6. Some human rights violations that might be inadequate for a peaceful settlement
The issue regarding to which point does the ICHR have the duty to offer and seek for a peaceful settlement between the parties, is intimately linked to another not least important topic, about the type of human rights violations that are not susceptible of being solved through a peaceful settlement.
Remembering Sir Humphrey Waldock’s opinion, who was President of the —now inexistent— European Commission of Human Rights, the institutions included in the ECHR were originally established with the main purpose of solving peacefully the possible transgressions to that treaty. This is useful to explain clearly why in the European System every type of case and thus, of violation to the rights established in the ECHR, deserve at least the chance to explore a possible peaceful arrangement.
The success of a peaceful settlement depends on both parts’ will, on the efforts of the supervising organs to grant it, and basically, on the State’s actions and the sources it allots to fulfill its compromises.
In the Inter American system, the topic on which type of human rights violations or under which circumstances a case might be inappropriate for a peaceful settlement, remains unsolved yet. However, the ICHR has described the topic in certain cases sent to the Court, and some authors have expressed their opinion.
Andrés Aguilar states that a case would not be susceptible of reaching a peaceful settlement due to "the attitude of the parties involved, or to the nature itself or because the gravity of the violation does not give a chance for an adequate reparation. This would be the case of, for example, the illegal deprivation of life, or cruel, degrading and inhumane treatment".105
The same author goes further by skating that the peaceful settlement may only work in cases of interstate petitions, in which it is totally justified.106
Christina Cerna differs from the previous ideas expressing that, taking as a reference the Inter American Court’s decisions in those cases against Honduras, that the cases that involve forced disappearance is extremely hard to reach a peaceful settlement that may reflect respect for life, for humane treatment, and personal freedom. The impossibility of peacefully solving these type of cases is even harder when the State shows cooperation with the Commission, but denies that the facts took place.107
César Sepúlveda emphasizes that no peaceful settlement shall be offered in cases of illegal or extended detention without being presented before a judge, torture, summary executions and forced disappearances.108 To this author, the Commission might reject any proposal of peaceful settlement done with the obvious intention of serving as a means to delay the adoption of a decision about the merits of the case.109
The supervising organs of the treaties that admit the peaceful settlement of petitions shall take advantage of their attributions and experience to detect those cases that might not be susceptible of being solved through the mentioned procedure. Besides, all the treaties that have been mentioned state that any arrangement shall be reached over the basis of the respect to human rights. The supervising organs shall give this disposition the broadest sense and scope and use it to support any decision they adopt concerning this.
In most cases, the State’s purpose is to avoid the public international condemnation of being pointed out as responsible of serious human rights violations. For this reason, for a peaceful settlement be acceptable over these basis, it shall include as a minimum for the State, the same compromises that would correspond it if the case were decided against it, and of course, those actions to prevent the repetition of similar situations. This way, the violation is repaired under the highest standards and the State avoids the international and internal condemn of a report or condemning sentence.
As a conclusion, it is possible to assert, with an optimist view of the topic, that in the future, the peaceful settlement will be the normal instrument of prosecution and termination of international petitions, and that only exceptionally will there be an issue of reports or sentences. For this to happen, a real compromise is required, as well as the States’ will towards the respect of human rights.
* Translated by Ingrid Berlanga Vasile.
** Researcher at the Legal Research Institute.
1 See Lante, Nii, The Settlement of International Disputes. The Contribution of Australia and New Zealand, The Hague, Martinus Nijhoff Publishers, 1998, pp. 10 and 11.
2 For a view of peaceful solution of controversies within the UN, see United Nations, Handbook on the Peaceful Settlement of Disputes between States, New York, United Nations, 1992.
3 Signed in San Francisco on June 26, 1945, in force since October 24, 1945. The Charter’s preamble states that the States parties decided to "create the conditions under which justice and respect for the obligations derived from the agreements and other sources of international law, could be followed up", and regarding this, they agree to "guarantee, through the acceptation of principles and the adoption of methods, that armed force shall not be used but for the common benefit".
4 For a detailed analysis of each one of the PSC’s means among States, comprised by the UN Charter, see United Nations, op. cit., note 2, pp. 9-109; Lante, Nii, op. cit., note 1, pp. 28-177.
5 For a complete view of the relevant documents adopted in the UN framework and the regional organizations Hill 1992, see United Nations, op. cit., note 2, specially pp. 3 and 4, and 83-97.
6 Ibidem, p. 84.
7 Ibidem, p. 87.
9 We should point out that both procedures are commonly optional, so it is up to the Status to be or not to be part of this kina of mechanisms.
10 See Collier J. and Lowe V., The Settlement of Disputes in International Law. Institutions and Procedures, New York, Oxford University Press, 1999, pp. 29-31; United Nations, op. cit., note 2, pp. 45-55.
11 Collier J. and Lowe V., op. cit., previous note, p. 29; United Nations, op. cit., p. 45.
12 United Nations, op. cit., note 2, pp. 45-47.
13 Sepúlveda, César, "El procedimiento de solución amistosa ante la Commission Inter-Americana de Derechos Humanos", in Inter-American Commission on Human Rights, Human Rights in the Americas, Homage to the Memory of Carlos A. Dunshee de Arranches, Washington, OAS, 1984, p. 242.
14 Ibidem, pp. 243 and 244.
15 Dijk, P. van and Hoof, G. J. H. van, Theory and Practice of the European Convention on Human Rights, 2nd edition, Netherlands, Kluwer Law and Taxation Publishers, 1990, p. 119.
16 See United Nations, Handbook on the Peaceful Settlement of Disputes between States, cit., p. 147 y n. 583.
17 Adopted by the General Assembly of the United Nations on March 7, 1966, which came into force on January 4, 1969.
18 Adopted by the General Assembly of the United Nations on December 16, 1966, in force since March 23, 1976.
19 Adopted by the General Assembly of the United Nations on December 10, 1984 and into force on June 26, 1987.
20 The Protocol of the CEDW was adopted by the General Assembly of the United Nations on October 6, 1999 and came into force on December 22, 2000. The MWC was adopted by the General Assembly of United Nations on December 18, 1990 and came into force on July 2003.
21 See Cançado Trindade, Antonio Augusto, "A Regra do Esgotamento dos Recursos Internos Revisitada: Desenvolvimentos Jurisprudenciais Recentes no Âmbito da Proteçao Internacional dos Direitos Humanos", in the work Corte Inter-Americana de Derechos Humanos, Liber Amicorum Héctor Fix-Zamudio, San José, Inter-American Court of Human Rights-European Union, 1998.
22 For an analysis of the procedure before the Committees appointed in the IPCPR and in the CTC, see respectively Boulesbaa A., The U.N. Convention on Torture and the Prospects for Enforcement, Netherlands, Martin Nijhoff Publishers, 1999, pp. 107-188 and pp. 277-293; Barkhuysen T. et al., The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order, Netherlands, Martin Nijhoff Publishers, 1999, pp. 101-112.
23 These may be consulted in document HRI/GEN/3, of June 6, 2001, elaborated by the Secretary General of the United Nations.
24 See some of the cases referred to in Barkhuysen T. et al., The Execution of Strasbourg and Geneva Human Rights Decisions..., cit., note 22, p. 111.
25 See Zwart T., The Admissibility of Human Rights Petitions: The Case Law of the European Commission of Human Rights and the Human Rights Committee, Netherlands, Martinus Nijhoff Publishers, 1994; Gominen D., Harris D. J. and Zwaak L., Law and Practice of the European Convention on Human Rights and the European Social Charter, Germany, Council of Europe Publishing, 1996; Harris, D. J., O'Boyle M. and Warbrick C., Law of the European Convention on Human Rights, London, Butterworths, 1999.
26 The content of the previous article 28, corresponds to 38 of the text derived from Protocol 11.
27 See Dijk, P. van y Hoof, G. J. H. van, op. cit., note 15, pp. 118-131; Clements L. European Human Rights: Taking a Case under The Convention, London, Sweet & Maxwell, 1994, pp. 55-59. According to article 28.1.b of the ECHR, once a petition is admitted the Commission had to "put at the disposition of the parties involved in order to assure a peaceful arrangement of the case on the basis of respect of human rights defined in this Convention". In harmony with the latter, article 53 of the Regulations of the 1993 European Commission of Human Rights, once this had decided to admit a petition, it had to determine the procedure that had to be followed to prosecute the decision in order to reach its peaceful arrangement.
28 Clements L., op. cit., note 27, p. 55.
29 Davidson S. Human Rights, Buckingham, Open University Press, 1997, p. 113.
30 Clements L., op. cit., note 27, p. 36.
31 Harris, D. J. et al., op. cit., note 25, p. 600; Dijk, P. van and Hoof, G. J. H. van, op. cit., note 15, pp. 118 and 121.
32 Dijk, P. van and Hoof, G. J. H. van, op. cit., note 15, p. 121.
33 Clements L. et al., European Human Rights: Taking a Case Under the Convention, 2nd edition, London, Sweet & Maxwell, 1999, p. 76.
34 Dijk, P. van and Hoof, G. J. H. van, op. cit., note 15, p. 121.
35 Ibidem, p. 119.
36 Harris, D. J. et al., op. cit., note 25, p. 602.
37 Idem. See also Farran S. The UK Before the European Court of Human Rights, Case Law & Commentary, Great Britain, Blackstone Press Limited, 1996, pp. 384-386.
38 Harris, D. J. et al., op. cit., note 25, p. 601.
39 Dijk, P. van and Hoof, G. J. H. van, op. cit., note 15, p. 120.
40 Harris, D. J. et al., op. cit., note 25, p. 602.
41 Ibidem, p. 602; Clements L., op. cit., note 27, p. 57.
42 Clements L., op. cit., note 27, p. 92.
43 Articles 30, 31 and 45 of the ACHPR.
44 ACHPR, article 52.
45 ACHPR, articles 47 and 49.
46 ACHPR, article 48.
47 ACHPR, article 52.
48 ACHPR, article 58.
49 ACHPR, article 56. See Ankumah, E. A., The African Commission on Human and Peoples Rights, Practice and Procedures, Netherlands, Martinus Nijhoff Publishers, 1996, pp. 51-77.
50 ACHPR, article 55.
51 See Umozurike U. Oji, The African Charter on Human and Peoples Rights, cit. supra, n. 150, p. 79. See too African Commission on Human and Peoples Rights. Decisions of the African Commission on Human and Peoples Rights (1986-1997) pursuant to Article 55 of the African Charter on Human and Peoples' Rights. Law Reports of the African Commission, Series A, volume 1, CADHP/LR/A/1, Banjul, 1997.
52 See Ankumah, E. A., op. cit., note 49, supra n. 160, p. 74.
53 See Umozurike U. Oji, The African Charter on Human and Peoples Rights, Netherlands, Martinus Nijhoff Publishers, 1997, p. 79. This author states "the Commission’s force lies in the peaceful solution, in that its power of criticizing the human rights violations is affected by the confidentiality requirement and is delayed by the procedure that demands to inform first the Assembly of Heads of State". Ibidem, p. 83.
54 See Ankumah, E. A. op. cit., note 49, p. 74.
55 See the Commission’s Considerations on the merits of the cases 27/89, 46/91, 49/91, 99/93, 59/91, 64/92, 68/92, 78/92, published in the document African Commission on Human and Peoples Rights, Decisions of the African Commission on Human and Peoples Rights (1986-1997) pursuant to Article 55 of the African Charter on Human and Peoples’ Rights. Law Reports of the African Commission, Series A. Volume 1. ACHPR/LR/A/1, Banjul, 1997.
56 Ibidem, pp. 7 and 8.
57 Ibidem, pp. 38-42.
58 Ibidem, pp. 11-15.
59 Ibidem, pp. 77-82.
60 See articles 36 and 53 of the ACHRP.
61 The American Declaration of Human Rights and Duties, adopted Bogota on May 2, 1948. The American Convention on Human Rights was adopted in San José on November 22, 1969, in force since July 18, 1978.
62 We should add too at present, the Inter-American Convention to Prevent and Sanction Torture (article 8) and the Inter-American Convention on Forced Disappearance of People (articles XIII and XIV) also consider the possibility of the Commission and Court executing their attributions, about individual petitions indicated in the latters’ framework. To those, we have to add the possibility of issuing complaints according to the Additional Protocol to the American Convention on Human Rights regarding Economic, Social and Cultural Rights (article 19.6, related to articles 8 and 13) and the Inter-American Convention to Prevent, Sanction, and Eradícate Violence against Women "Convention Belem do Para" (article 12).
63 To revise the history, political antecedents, and operation of the ICHR before 1968 see Vasak K., La Commission Interamericaine des Droits de L’Homme, Paris, Libraire Générale de Droit et de Jurisprudence, 1968, pp. 1-81.
64 See Buergenthal T. et al., La Protección de los Derechos Humanos en las Américas, Madrid, Instituto InterAmericano de Derechos Humanos-Civitas, 1990, pp. 37 and 38.
65 ACHR, articles 44-51.
66 ACHR, articles 44, 45 and 62.
67 Sepúlveda, César, op. cit., note 13, p. 242.
68 Such disposition appointed in its conducting part that the European Commission had to "put itself at the disposition of the parties involved aiming to grant a peaceful arrangement of the issue over the basis of respect to human rights defined in this Convention". According to this, article 53 of the Regulations of the 1993 European Commission of Human Rights, once the Commission had decided to admit a petition, it had to determine the procedure that had to be followed in order to prosecute the decision to reach its peaceful agreement.
69 Sepúlveda, César, op. cit., note 13, p. 242; see also Aguilar Andrés, "El procedimiento que debe aplicar la CIDH en el examen de las peticiones o comunicaciones individuales sobre presuntas violaciones de derechos humanos", in Inter-American Commission on Human Rights, Human Rights in the Americas, Homage to the Memory of Carlos A. Dunshee de Abranches, Washington, OAS, 1984, p. 213.
70 Sepúlveda, César, op. cit., note 13, p. 244.
71 See the "Report on the situation of human rights of a sector of the Nicaraguan population of Miskito origin" (OEA/Ser.L/V/II.62, doc. 26, May 16,1984). For an analysis of the case see Sepúlveda, César, op. cit., note 13, pp. 242-246; see too Méndez, Juan, "The participation of the Inter-American Commission of Human Rights in the conflicts among the Miskitos and the government of Nicaragua", in Inter-American Commission on Human Rights, Human Rights in the Americas, Homage to the Memory of Carlos A. Dunshee de Abranches, Washington, OAS, 1984, pp. 306-318.
72 See the "Report on the situation of human rights of a sector of the Nicaraguan population of Miskito origin".
73 See the document "Resolution on the Procedure of Peaceful Solution on the situation of human rights of a sector of the Nicaraguan population of miskito origin" (OEA/Ser.L/V/II.62, doc. 26, May 16, 1984).
75 See Cerna, Christina, "The Inter-American Commission on Human Rights: its Organization and Examination of Petitions and Communications", in D. J. Harris and S. Livingstone (eds.), The Inter-American System of Human Rights, Oxford, Oxford University Press, 1998, pp. 100 and 101.
76 Sepúlveda, César, op. cit., note 13, p. 243.
77 Ibidem, pp. 246 and 247.
78 Article 45. Peaceful settlement. "1. As a request of any of the parties, or by own initiative, the Commission will put itself at their disposition, in any phase of the examination of a petition, in order to reach a peaceful settlement of the issue, founded on the respect of human rights established in the American Convention of Human Rights. 2. In order to the Commission offer the parties to act as an organ of peaceful solution of the case, it would be necessary to precise their positions and aims; and that, the Commission considers that due to its own nature, the case is susceptible of reaching a solution through the utilization of the procedure of peaceful solution. 3. The Commission may accept the proposal to act as an organ of a peaceful solution elaborated by one of the parties if the circumstances expressed in the previous paragraph coincide and if the other party expressly accepts this means. 4. As the Commission accepts to act as an organ of peaceful solution, it might designate among its members a Special Commission or an individual member. The Special Commission or the member designated would inform the Commission within the deadline it sets. 5. The Commission shall set a deadline for the reception and finding of proofs, it shall set dates for the celebration of trials, if they proceed, it shall indicate whether the practice of an observation in loco is necessary, which shall be made during the consent of the corresponding State, and it shall set a deadline for the conclusion of the procedure, which might be extended according to what the Commission decides. 6. If a peaceful solution is reached, the Commission shall write down a report that shall be transmitted to the interested parties and communicated to the Secretary General of the Organization of American States for its publication. This report shall contain a brief exposition about the facts and the solution accomplished. If any of the parties in the case requests it, he will be given the most extensive information possible. 7. In case the Commission warns during the prosecution of the case that due to its nature, it is not susceptible of reaching a peaceful solution; that some of the parties do not agree on the application of this procedure, or is not willing to reach a peaceful solution, founded on the respect to human rights, the Commission may, whatever the phase of the procedure is, end its intervention as an organ of peaceful solution".
79 Sepúlveda, César, op. cit., nota 13, pp. 250 and 251.
80 Article 41. Peaceful Settlement. "1. The Commission will be at the disposition of the parties in any phase of the examination of a petition or case, by its own initiative or by request of any of the parties in order to reach a peaceful solution of the issue founded on the basis of respect of human rights established in the American Convention of Human Rights, the American Declaration, and other applicable instruments. 2. The procedure of peaceful solution shall begin and continue on the basis of the parties’ consent. 3. When the Commission finds it necessary, it may leave one or more of its members the task to facilitate the negotiation between the parties. 4. The Commission may bring its intervention to an end in the procedure of peaceful solution if it warns that the issue is not susceptible of being solved by these means, or if any of the parties, conscious of its application, decides not to continue in it, or does not show willingness to reach a peaceful solution founded in the respect of human rights. 5. If a peaceful solution is accomplished, the Commission shall approve a report with a brief exposition about the facts and the solution achieved, it shall transmit it to the parties and publish it. Before approving the report, the Commission shall verify whether the victim of the assumed violation, or his beneficiaries, agree with the terms of the peaceful solution agreements. In all of the cases, the peaceful solution shall be founded on the respect of human rights recognized in the American Convention of Human Rights, the American Declaration, and other applicable instruments. 6. Should a peaceful solution is not reached, the Commission shall continue with the prosecution of the petition or case".
81 See document OEA/Ser.L/V/II.98; Doc. 6; February 17 1998; Original: Spanish.
82 The information was taken from the corresponding annual reports of the ICHR, available in the Commission’s website: http://www.cidh.org.
83 ACHR, articles 46 and 47.
84 It must be stressed that the parties are not forced to justify or express the reasons of their determination of bringing an end to the peaceful agreement, but usually, are adduced lack of conditions for it or lack of willingness or goodwill from any of the parties.
85 Vivanco, J. and Bhansali, L., "Procedural Shortcomings in the Defense of Human Rights: An Inequality of Arms", in Harris D. J. and Livingstone S. (eds.), The Inter-American System of Human Rights, Oxford, Oxford University Press, 1998, p. 432.
86 Statute of the ICHR, article 23.2.
87 ACHR, article 50.
88 ACHR, articles 50, 51 and 61.2.
89 Article 37 of the ICHR Regulations in force.
90 See Regulations of the Inter-American Court of Human Rights in force since January 1st, 1997, article 53. The 1992 Regulations contained a similar disposition in article 43.
91 Aguilar Andrés, op. cit., note 69, p. 212.
92 Vivanco, J. y Bhansali, L., op. cit., note 85, p. 433.
93 Cerna, Christina, op. cit., note 75, p. 102.
94 Ibidem, at pp. 102 and 103. See the Velásquez Rodríguez Case. Preliminary Exceptions Sentence of June 26, 1987, par. 44. Case Fairén Garbi and Solís Corrales. Preliminary Exceptions. Sentence of June 26, 1987, par. 49. Case Godínez Cruz. Preliminary Exceptions. Sentence of June 26, 1987, par. 47. Also see Case Caballero Delgado and Santana. Preliminary exceptions. Sentence of January 21,1994, par. 26 and 27.
95 Case Caballero Delgado and Santana. Preliminary exceptions. Sentence of January 21, 1994, par. 26.
96 Ibidem, par. 27.
97 Ibidem, par. 30.
98 Cerna, Christina, op. cit., note 75, pp. 102 and 103.
99 Despite this, to some authors the peaceful solution is a process that gives reasons for the satisfaction to all the parties, but that formally brings an end to the procedure without any winners or losers. Harris, D. J. et al., op. cit., note 25, p. 600.
100 Idem. See also Dijk, P. van and Hoof, G. J. H. van, op. cit., note 15, p. 119; Clements L., op. cit., note 27, p. 56.
101 Case Caballero Delgado and Santana. Preliminary exceptions. Sentence of January 21, 1994, par. 30.
102 Dijk, P. van and Hoof, G. J. H. van, op. cit., note 15, p. 119; see also Harris, D. J. et al., op. cit., note 25, p. 600.
103 Dijk, P. van and Hoof, G. J. H. van, ibidem, p. 119.
104 Harris, D. J. et al., op. cit., note 25, p. 600.
105 Aguilar, Andrés, op. cit., note 69, p. 213.
107 Cerna, Christina, op. cit., note 75, pp. 101 and 102.
108 Sepúlveda, César, op. cit., note 13, p. 247.