The right to a judicial determination of the legality of a person's detention, commonly known as habeas corpus, is guaranteed in a large number of domestic legal systems, and is also a cornerstone of international human rights law. Among these diverse legal regimes, habeas corpus has developed into a particularly robust remedy under Inter-American human rights law. Habeas corpus holds a unique place in the development of the Inter-American system, and the scope of the right in this system has been shaped significantly by the experiences of American countries.
An examination of habeas corpus in the Inter-American system necessarily begins with the challenge inherent in establishing the system itself. Although the American Declaration of the Rights and Duties of Man (1) (American Declaration) predates both the Universal Declaration of Human Rights and the European Convention on Human Rights, its early adoption was followed by a long absence of meaningful activity at the regional level. It was not until 1960 that a monitoring system was implemented in the Inter-American system and 1978 before a binding human rights treaty came into force.
The promotion and protection of human rights in the Americas has been hampered by a history of political instability across much of Latin America. Judge Thomas Buergenthal, former President of the Inter-American Court of Human Rights, has observed that the Americas "continue to suffer from widespread poverty, corruption, discrimination, and illiteracy, not to mention archaic judicial systems that are badly in need of reform." (2) These challenges are compounded by the fact that Canada and the United States, two democracies with strong legal traditions, chose not to ratify the American Convention on Human Rights (American Convention). Thus, the Inter-American system lacks both the general stability of civil society as well as the broad regional consensus on participation that has made the European system so effective.
The political instability in Latin America presents unique human rights issues. Among them is the widespread use of state-sanctioned kidnappings known as "disappearances." (3) Disappeared persons are typically political opponents or grassroots activists. (4) Disappearances are usually carried out by heavily armed security or military personnel, often in uniform and often in front of witnesses, followed by official denial of the detention. (5) The disappeared person is often tortured and, if death does not directly result, the individual is "generally executed in summary, extrajudicial fashion." (6)
During the 1970s and 1980s the practice of disappearances was widely used by military regimes throughout Latin America. (7) The Inter-American Court commented on the prevalence of this scourge in the late 1980s:
Disappearances are not new in the history of human rights
violations. However, their systematic and repeated nature and their
use not only for causing certain individuals to disappear, either
briefly or permanently, but also as a means of creating a general
state of anguish, insecurity and fear, is a recent phenomenon.
Although this practice exists virtually worldwide, it has occurred
with exceptional intensity in Latin America in the last few years.
The Inter-American Commission noted that the government of Peru acknowledged 5000 complaints of disappearances were reported between 1983 and 1991. (9)
The increase in disappearances corresponded with the formative years of the Inter-American human rights system. This intersection had implications for many aspects of Inter-American jurisprudence. The impact of this intersection was particularly significant in the development of the right to habeas corpus.
On one hand, the widespread use of disappearances underscored the inviolability of the right to habeas corpus, which was already a prominent feature in most American legal systems. …