Legal Commentary

Bringing a case against Arizona before the Inter-American Commission on Human Rights

By David Kopel

Apparently that is the plan of several Mexican and Arizona legislators. (Original story in Spanish from El Semanario here.)

The Inter-American Commission on Human Rights is the Oranization of American States administrative body responsible for hemispheric human rights enforcement. Generally speaking, if the Commission finds that the government has violated human rights, the Commission attempts to resolve the matter by issuing recommendations to that the government. However, if the Commission considers the case unusually important, or if the government obdurately ignores the recommendations, the Commission can bring the case to the Inter-American Court of Human Rights.

That Court, ocated in San José, Costa Rica, has the duty is to interpret and hear cases on the American Convention on Human Rights. Significantly, however, the Convention has only been ratified by 24 of 35 OAS members, and the United States is not among the ratifiers.

Accordingly, the United States is not currently subject to the Court?s ?adjudicatory function.? (In an adjuticatory function case, the defendant government can be ordered to pay money, or to do particular things). The adjuticatory function is available only if the defendant government has accepted the Court?s jurisdiction, and has ratified the American Convention on Human Rights. A state can accept the Court?s jurisdiction on a case-by-case basis, or can submit to blanket jurisdiction.

Besides adjudicating cases, the Inter-American Court can also act in an Advisory function. It does so when asked by an OAS agency or OAS member state. In the Advisory role, the Court can interpret the American Convention on Human Rights, or any other treaty which applies to human rights in the Americas. The Court can also advise whether existing or proposed domestic laws are compatible with those treaties.

Thus, unless the Senate ratified the American Convention on Human Rights and the US government accepted the jurisdiction of the Inter-American Court, neither the Court nor the Inter-American Commission on Human Rights can issue a legally binding decision against the Arizona laws against illegal aliens. Either the Commission or the Court could issue non-binding advisory opinions as to whether the Arizona laws violate international law.

Full post as published by The Volokh Conspiracy on May 27, 2010 (boomark / email).