U.S. and the Inter-American Human Rights System Symposium
The U.S. and the Inter-American Human Rights System Symposium
By Christine Pakkala
When advocacy in civil and human rights cases is unsuccessful in U.S. courts, lawyers sometimes turn to the Washington, D.C. based Inter-American Commission on Human Rights (IACHR) as an alternate forum to air their clients’ grievances. Just how this tribunal affects U.S.-based advocacy was the subject of a one-day conference on April 7 co-hosted by the Columbia Law School Human Rights Institute (HRI), the Center for Justice and International Law (CEJIL) and the American Society of International Law (ASIL).
The goals of the IACHR, as well as its counterpart based in Costa Rica, the Inter-American Court, are simple but ambitious: to promote the observance and protection of human rights, and to serve as a consultant to the OAS on human rights matters. As a result, the Commission can expose human rights violations by countries in the Americas – including the United States – to international political bodies, the media and the broader public, can generate new norms relevant to domestic legislation and jurisprudence, and can create a tool for political engagement with the U.S. State Department and state and local governments.
The Commission and the Inter-American Court on Human Rights are both organs of the Organization of American States (OAS), though they have important differences. Located in Costa Rica, the Court has the power to enforce the provisions of the American Convention on Human Rights, while the commission, in Washington, D.C., has no enforcement authority. It can hear and submit cases to the Court for litigation.
Using international tribunals, whose decisions are not enforceable in the U.S., to advance justice is not easy. Ariel Dulitzky, the former Assistant Executive Secretary of the IACHR and now a visiting professor at University of Texas, Austin, noted that the Office of American States (OAS) was once referred to by the Washington Post as an “obscure seven member panel.”
“People have asked me ‘why bother with human rights in the U.S. if there is no enforceable remedy?’,” Caroline Bettinger-Lopez ’03, a Lecturer-in-Law at Columbia, said in her presentation at the conference.“Others have criticized us for not focusing on ‘real’ human rights abuses happening in El Salvador or Columbia. ‘You shouldn’t be worried about this isolated domestic violence case from Colorado,’ they say.”
That Colorado case, Jessica Gonzales v. United States, however, has set a precedent in American advocacy: It is the first time the Commission has been asked to consider the U.S.’s obligation to protect individuals from private acts of violence under the American Declaration on the Rights and Duties of Man. Jessica Gonzales’ (now Lenahan) three daughters were killed in 1999 when Colorado police refused to enforce a restraining order against her estranged husband. Jessica Gonzales filed a lawsuit against the police in federal court, alleging Fourteenth Amendment due process violations.
Her case was dismissed before reaching discovery. It eventually reached the U.S. Supreme Court, which ruled 7-2, in an opinion written by Justice Antonin Scalia, that Lenahan had no constitutional right to a restraining order. Therefore, for Lenahan, the Inter-American Commission offered her a first opportunity to have her case heard.
For Bettinger-Lopez, Jessica Lenahan’s opportunity to testify before the IACHR, in March 2007, was an important victory. The commission’s grant of a hearing may also be a tool for political pressure and an opportunity to influence public opinion about domestic violence, she said.
“Any public interest lawyer knows that what you do outside the court can be as important as what you do inside the court,” she added.
Another important U.S. case before the commission involves Nathalie Walker’s environmental advocacy. Walker, Co-director and Attorney at Advocates for Environmental Human Rights in New Orleans, Louisiana, described for the audience Mossville, a community founded in the 1800s by African Americans and now surrounded by at least 14 industrial facilities, nine of which that have admitted to polluting the environment.
The U.S. Agency for Toxic Substances and Disease Registry reported in 1999 that Mossville residents have three times more dioxin in their bodies than the general U.S. population, according to an AEHR report. AEHR filed a human rights legal petition with the IACHR in 2005 on behalf of Mossville residents, detailing the history of the town and providing an analysis of the present environmental damage to the community and its residents. The Commission has requested that the U.S.Department of State submit a response to the Mossville petition.
Morrisonville, another historic African-American community in Louisiana founded by freed slaves became heavily polluted after the arrival of Dow Chemical. All that remains is a cemetery, Walker said, adding, “There are at least five other examples in Louisiana of historic African communities that have been destroyed by environmental pollution.
“Environmental injustice is a violation of international law, and the IACHR is an important tool in showing the international human rights community these kinds of abuses,” Walker said.
While the IACHR can be used to spotlight abuses, Bettinger-Lopez and others stressed the importance of recognizing the Commission’s limitations.
Not all U.S. judges believe an international court’s finding is relevant to their courtrooms, said Sandra Babcock, Associate Clinical Professor and Clinical Director for international human rights at Northwestern University.
“Be creative about educating local decision makers about the Commission,” she said. “Think about what witnesses you might call in order to educate your court.”
Tara Melish, a visiting assistant professor at the University of Georgia School of Law, stressed the importance of bringing petitions to the IACHR that meet its technical requirements. While only a handful of the approximately 800 petitions pending a hearing have been heard by the Commission, hundreds more have been thrown out because of improper presentation of a petition for a hearing.
The IACHR is not meant to usurp national judicial systems. Rather, it is supposed to be a “safety net,” said Sarah Cleveland, the Louis Henkin Professor in Human and Constitutional Rights and HRI co-director.
Cleveland hopes the United States one day will recognize the legitimacy of international courts and tribunals.
“This is a long term struggle,” she said. “It’s not just about serving one client but building a network of norms, about building a jurisprudence that might be relied upon someday by the European courts or by the newly-established African Court.”