Making International Human Rights Protection More Effective: A Rational-Choice Approach to the Effectiveness of Ius Standi Provisions



American system for those cases which may be submitted to the IACHR,176 as opposed to cases
submitted to the IAC, which only deals with the ACHR.

There is no individual complaint possibility directly to the IAC, which significantly restricts ac-
cess.177 Only States Parties and the IACHR have the right to submit a case to the IAC.178 Never-
theless, the alleged victims, their next of kin or their duly accredited representatives may submit
their pleadings, motions and evidence autonomously throughout the proceedings, that is, they
have been granted locus standi in judicio, i.e. the entitlement to participate directly in all stages
of the procedure before the IACHR.179 There is no requirement of legal representation and thus
the costs are low in this respect. But the costs of evidence are borne by the parties, including the
costs for the calling of witnesses.180 If the IAC finds that there has been a violation of a right or
freedom protected by the ACHR, the IAC rules that the injured party be ensured the enjoyment
of the right or freedom that was violated. It may also rule, if appropriate, that the consequences
of the measure or situation that constituted the breach of such right or freedom be remedied and
that fair compensation be paid to the injured party.181 The decisions of the Court are very precise
concerning remedies and usually go further than just stating a violation and further than just or-

176 Art. 23 IACHR 2003 Rules of Procedure, approved by the IACHR at its 109° special session held from
December 4 to 8, 2000 and amended at its 116th regular period of sessions, held from October 7 to 25, 2002,
spells out the other treaties under which a petition may be brought: the American Declaration of the Rights
and Duties of Man, which is very broad in its coverage and includes economic, social and cultural rights, the
Additional Protocol in the Area of Economic, Social and Cultural Rights, the Protocol to Abolish the Death
Penalty, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on
Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women, in accordance with their respective provisions, the Statute of the
Commission, and the IACHR 2003 Rules of Procedure.

See for an overview of the Treaties: <www.corteidh.or.cr/afines_ing/american.html>.

177 This is frequently criticized, see for an overview with further references Pasqualucci, supra note 52, at 22 et
seqq. Nevertheless, the Court and the IACHR moved toward giving the petitioner greater autonomy. The
IACHR „shall“ now refer a case to the Court, “unless there is a reasoned decision by an absolute majority of
the members of the Commission to the contrary“, Art. 44 (1) IACHR 2003 Rules of Procedure. Art. 69 (2)
IACHR 2003 Rules of Procedure states that if the petitioner so requests, the IACHR shall include him or her
as a delegate.

178 Art. 61 (1) ACHR. In order for the IAC to hear a case, it is necessary that the procedures set forth in Articles
48 and 50 shall have been completed (Art. 61 (2) ACHR). Those articles cover the procedures of the IACHR.

179 The landmark decision on the issue of the complainants' participation came in I/A Court H.R. Case of El
Amparo v. Venezuela. Judgment of January 18, 1995 (Series C, No. 19). By now the participation is included
in Art. 23 Rules of Procedure of the Inter-American Court of Human Rights, approved by the Court during
its XLIX Ordinary Period of Sessions, held from November 16 to 25, 2000, and partially reformed by the
Court during its LXI Ordinary Period of Sessions, held from November 20 to December 4, 2003. When there
are several alleged victims, next of kin or duly accredited representatives, they shall designate a common
intervener who shall be the only person authorized to present pleadings. See for an appraisal of this new rule,
Cerna, supra note 171, at 204 et seq.

180 Art. 46 (2) Rules of Procedure of the Court.

181 Article 63(1) ACHR reads as follows: „If the Court finds that there has been a violation of a right or freedom
protected by this Convention, the Court shall rule that the injured party by insured the enjoyment of his right
or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or
situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid
to the injured party.“

38



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