The idea of a court to protect human rights in the Americas has a long history. The Ninth International Conference of American States (Bogotá, Colombia, 1948), in its Resolution XXXI entitled "Inter-American Court to Protect the Rights of Man," considered that the protection of these rights "should be guaranteed by a juridical organ, inasmuch as no right is genuinely assured unless it is safeguarded by a competent court," and that "where internationally recognized rights are concerned, juridical protection, to be effective, should emanate from an international organ." It therefore recommended that "the Inter-American Juridical Committee prepare a draft statute providing for the creation and functioning of an inter-American court to guarantee the rights of man." [19] In its report to the Inter-American Council of Jurists on 26 September 1949, the Juridical Committee considered that the lack of substantive positive law on the matter constituted a great obstacle in drafting the statute of the Court and that it would be advisable for a convention containing rules of this nature to precede the statute. It felt that the Council of Jurists should to propose such a solution to the Tenth Inter-American Conference. [20]
The Tenth Conference (Caracas, Venezuela, 1954), in its Resolution XXIX "Inter-American Court for the Protection of Human Rights," referred this matter to the Eleventh Inter-American Conference for consideration, so that a decision could be made on the basis of studies compiled on the subject by the OAS Council. It instructed the Council to continue its work on the basis of existing proposals and in light of its own experience. [21] The Eleventh Conference, however, never took place.
Subsequently, the Fifth Meeting of Consultation (1959), in the first part of the resolution on "Human Rights," instructed the Inter-American Council of Jurists to prepare two draft conventions, one on "Human Rights" and another on the creation of an "Inter-American Court of Human Rights" and other organs appropriate for the protection and observance of those rights. [22]
The Council of Jurists carried out its instructions and at its Fourth Meeting (Santiago, Chile, 1959) prepared a draft Convention on Human Rights which contained not only substantive provisions on human rights, but also institutional and procedural regulations with regard to those rights, including the creation and operation of a court and of an inter-American commission on human rights. [23]
This draft was then brought before the Second Special Inter-American Conference for consideration. It decided to send the draft to the Council of the Organization, with instructions that it should update and complete it, after receiving the opinion of the Inter-American Commission on Human Rights and any other organs and entities it felt advisable. It was then to convene an inter-American specialized conference. [24]
On 10 April 1967 the Inter-American Commission on Human Rights presented its opinion to the Council. On 22 November 1969 the American Convention on Human Rights was adopted in San José, Costa Rica. Chapter VII of Part II of the Convention creates an Inter-American Court of Human Rights.
The OAS General Assembly, which met in La Paz, Bolivia in 1979, approved the Statute of the Court (Resolution 448). Article 1 defines the Court as "an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights."
The Court has adjudicatory and advisory jurisdiction. As regards its adjudicatory jurisdiction, only the Commission and the States Parties to the Convention are empowered to submit cases concerning the interpretation and application of the Convention. However, the procedures before the Commission called for under Articles 48-50 of the Convention must have been previously exhausted.
In addition, in order that a case against a State Party to be brought before the Court, the State Party must recognize the jurisdiction of the Court. This may be done by a declaration accepting the Court's jurisdiction in all cases or on the basis of reciprocity for a limited time or for a particular case.
As regards the advisory function of the Court, Article 64 of the Convention provides that any member state of the Organization may consult the Court on the interpretation of the Convention or of other treaties on the protection of human rights in the American states. This right of consultation also extends to the organs listed in Chapter X of the OAS Charter, within their sphere of action. The Court may also, at the request of any member state of the Organization, issue an opinion on the compatibility of any of its domestic laws with the aforementioned international instruments.
The States Parties to the Convention elected the first seven judges of the Court at its seventh special session of the OAS General Assembly (May 1979). The Court was officially installed in San José, Costa Rica, where it has its seat, on 3 September 1979.
The Court, at its Third Regular Session, held 30 July - 9 August 1980, adopted its Rules of Procedure. At that same session, it also completed work on a Headquarters Agreement with Costa Rica setting out the immunities and privileges of the Court, its judges and staff and the persons who appear before it. This Agreement has been ratified by the Government of Costa Rica.
Later the Regulations of the Court were reformed and approved at its Twenty-Third Regular Meeting held January 9-18, 1991.
20 Comité Jurídico Interamericano. Recomendaciones e Informes. Documentos Oficiales (1949-1953), pp. 105-110 (Spanish text only).
21 International Conferences of American States, Second Supplement, supra, note 1, 379.
22 See note 13.
23 See the complete text of the draft convention in Inter-American Council of Jurists, Fourth Meeting, 1959. Final Act, CJI 43, especially pp. 52-81.
24 Second Special Inter-American Conference, Rio de Janeiro, 1965. OAS Official Documents, OEA/Ser.C/I.13, pp. 49-50.