David Weissbrodt, Joan Fitzpatrick, and Frank Newman, International Human Rights—Law, Policy, and Process (3d ed. 2001).
Supplement to Chapter 11: The Inter-American System and the Interpretation
and Application of Human Rights Instruments (November 2003)
Section E-3 (pp. 604-08): The Inter-American Commission—Typical Cases in the Inter-American Commission
There currently are two important
pending cases against the
1. Detainees at
(i) to adopt measures necessary to protect their right to personal integrity and fair trial;
(ii) to treat each detainee as a POW until any doubt as to status is determined by a competent tribunal;
(iii) to provide the detainees written notice of the charges, access to legal counsel with confidential communications and access to judicial review;
(iv) to identify the detainees;
(v) to notify them of their rights to consular representatives;
(vi) suspend their interrogation until their rights are guaranteed;
(vii) to stay any proceedings before military commissions pending resolution of their status;
(viii) to permit the IACHR to inspect the site; and
to find that any order of precautionary measures is binding
(Request by Center for Constitutional Rights, et al. for Precautionary Measures under Article 25 of the Commission’s Regulations, Detainees in Guantanamo Bay, Cuba (IACHR Feb. 25, 2002); Bravin, Lawyers Seek Intervention by OAS To Change Treatment of Prisoners, Wall S. J., Feb. 25, 2002.)
In its April 11, 2002, response to
the IACHR’s request, the U.S. argued that there was no basis in fact or law
for the Commission’s request because: (a)
international humanitarian law, not international human rights law, applied;
(b) the IACHR had no jurisdiction to apply international humanitarian law;
(c) the detainees, as a matter of public record, were unlawful combatants,
not prisoners of war; and (d) the detainees were treated humanely. Therefore, the
On May 28, 2002, the Commission,
acting on further observations by the petitioners, 
asked the U.S. to comment on the contention that some of the detainees were not
captured on any battlefield, that some were suffering from mental disorders,
that the legal status of the detainees was unclear, and that the uncertainty of
their status was “placing them increasingly at risk of irreparable harm.” In addition, the
Eight days later, on
The request for a hearing was
granted, and a closed hearing was held on
2. Post-September 11, 2001, INS Detainees
Pursuant to Article 25 (1) of the
IACHR’s Rules of Procedure, the petitioners asked the IACHR to request the U.S.
to take the following precautionary measures with respect to the
detainees: release them from detention;
allow the implementation of final orders for deportation or voluntary departure
from the U.S.; specify the bases for the detention so that they can effectively
seek legal remedies; ensure them equal treatment; protect their honor,
reputation and family life; protect their due process rights; treat them
humanely and in accordance with international law; and identify all such
After receiving the U.S.’s September
18, 2002, response to the IACHR’s request for information and the petitioners’
September 17, 2002, additional information, the Commission on September 26,
2002, granted the request for precautionary measures and asked the U.S. “to
protect the fundamental rights of the [petitioners], including their right
to personal liberty and security, their right to humane treatment, and their
right to resort to the courts for the protection of their legal rights, by
allowing independent courts to determine whether the detainees have been lawfully
detained and whether they are in need of protection.” In support of this decision, the Commission stated
that the U.S. had failed to clarify or contradict petitioners’ information
indicating that (i) there was no basis under domestic or international law
for their continued detention; (ii) there was no information regarding their
conditions of detention although former detainees have claimed that they were
subjected to harsh conditions and verbal and physical abuse;
and (iii) the detainees were being held without any effective
means of challenging the legality or conditions of detention before the domestic
courts. In addition, the IACHR noted,
as it had in the
Several Guantánamo detainees have,
by next friends, filed petitions for writ of habeas corpus in various federal
district courts in the
3. Mayagna Awas Tingni Case
In August 2001, the Inter-American Court of
Human Rights reaffirmed the rights of indigenous peoples in the case of the
Mayagna (Sumo) Awas Tingni Indigenous Community of the Atlantic Coast of
Nicaragua. The case secured recognition
of the community’s rights to its ancestral lands, establishing a historical
precedent at the international level for the communal rights of indigenous peoples.
The Awas Tingni community case
was the first submitted to the
Facts of the case
The Mayagna Awas Tingni Community
is an indigenous Mayagna or Sumo community of approximately 630 individuals on
· In June 1995, the RAAN Regional Council signed an agreement with Sol del Caribe S.A. (SOLCARSA), an international logging company, to begin operations in the territory claimed by the community. In July, the legal representative of the Community sent a letter to the Ministry of the Environment and Natural Resources (MARENA) in which the Community protested the possibility of a concession on its lands being granted without it previously having been consulted.
The community attempted to delay the grant of the concession through
legal actions in the domestic courts but in September 1995, the case was
declared inadmissible on the ground that it had not been filed within the legal
time limit. The community appealed to
the Supreme Court, which pronounced judgment on
While the Supreme Court decision was pending, the State granted
a 30-year concession to SOLCARSA on
Proceedings Before The Inter-American Commission on Human Rights
- That the State of had not complied with its obligations under the American Convention on Human Rights.
- That the State had not demarcated the communal lands of the Awas Tingni Community or other indigenous communities, nor had it taken effective measures to ensure the property rights of the Community on its lands.
- That the omission by the State constituted a violation of Articles 1, 2 and 21 of the Convention, which together establish the right to such effective measures.
- That the State was actively responsible for violations of the right to property, embodied in Article 21 of the Convention, by granting a concession to the company SOLCARSA to carry out road construction work and logging exploitation on the Awas Tingni lands, without the consent of the Awas Tingni Community.
- That despite the establishment of a Demarcation Commission, the State did not guarantee an effective remedy to respond to the claims of the Awas Tingni Community regarding their rights to lands and natural resources, pursuant to Article 25 of the Convention.
establish a legal procedure, acceptable to the indigenous communities
involved, that would result in the rapid official recognition and demarcation
of the Awas Tingni territory and the territories of other communities of the
- suspend the concession granted to SOLCARSA until ownership of the land was resolved, or the State and the Awas Tingni Community reached an agreement.
It had established a National Commission for the demarcation of
the lands of the Indigenous Communities of the
A draft Law on Indigenous Communal Property had been prepared
and would be passed within three months after full consultation with civil
The State cancelled the SOLCARSA concession on
Proceedings before the Inter-American Court of Human Rights
- the Convention requires that the state ensure that the competent authorities comply with judicial decisions, pursuant to article 25(2)(c) of the Convention. In the domestic cases brought by the Awas Tingni community, the State ignored the judicial decision issued in favor of the indigenous communities. For two years the Community suffered damage to its property from the continued logging, which the government should have stopped, as required by its own laws. The suspension of the SOLCARSA concession took place almost two years after the Supreme Court’s order. These failures constituted a violation of the right to judicial protection.
- The lack of a mechanism for determining indigenous peoples’ land title also constituted a violation of judicial protection. The state had been “negligent and arbitrary in the face of the titling requests by the Community” and had provided no appeal from decisions by state bodies that determined indigenous land to be State-owned. The existence of a pro-forma body to determine land title was not sufficient. The case law of the court requires that effective remedies be available.
- The State was estopped from arguing that the Community had no traditional land tenure or rights to the land as that was a position contrary to the one it had taken before the Commission or the Community.
- The granting of the SOLCARSA concession was a violation of articles 1 and 2 of the Convention, as well as a violation of article 21, the right to private property.
- that the State violated the right to judicial protection as contained in article 25 of the American Convention on Human Rights, to the detriment of the members of the Community.
- that the State violated the right to property as contained in article 21 of the American Convention on Human Rights.
- that the State should adopt within its domestic legal system, in conformance with article 2 of the American Human Rights Convention, an effective mechanism for official recognition, demarcation and titling of the indigenous communities' properties, in accordance with the customary law, values, usage and customs of these communities.
- that the State shall officially recognize, demarcate, and issue title for those lands belonging to the members of the Community and cease all acts which could cause agents of the State, or third parties acting with its acquiescence or tolerance, to affect the existence, value, use or enjoyment of that property.
- that the State should invest, as reparation for moral damages, within a period of 12 months, the sum total of US$50,000 in public works and services in the collective interest and for the benefit of the Community.
that the State should pay the members of the Community the sum of US$30,000 for expenses and costs incurred by Community members and their representatives, both in domestic proceedings as well as international proceedings before the Inter-American system for the protection of human rights.
Richard J. Wilson,
Richard J. Wilson & Jan Perlin, The Inter-American Human Rights System: Activities from Late 2000 Through October 2002, 18 Am. U. Int’l L. Rev. 651 (2003);
Treatment of “Battlefield Detainees” in the War on Terrorism
(Congressional Research Service, CRS Report for Congress,
Terrorism and the Law of War: Trying Terrorists as War Criminals before
Military Commissions (Congressional Research Service, CRS Report for
 As has been noted, over
 Efforts to
 Article 25 (1) provides, “In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.” (Cf. Fed. R. Civ. P. 65 (a)(preliminary injunctions).)
 The petitioners argued that the IACHR had
authority to adopt the precautionary measures, that it had jurisdiction to
consider international humanitarian law in interpreting the American
Declaration, that the
 Is this at
least a suggestion of
Odah, et al. v.
 This section is drawn primarily from, The Mayagna (Sumo) Awas Tingni Community Case, Judgment on the Preliminary Objections of February 1, 2000, Inter-Am. Ct. H.R. (Ser. C) No. 66 (2000), available at <http://www1.umn.edu/humanrts/iachr/C/66-ing.html> (last visited September 2003)
 Summarized from the judgment of the IACHR in The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001) available at <http://www1.umn.edu/humanrts/iachr/AwasTingnicase.html> (last visited September 12, 2003)
 Id. para 104(l)