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Inter-American Commission of Human Rights
-Feasibility Study of Atomic Bombing Case-
Lilian M. Yamamoto
I Introduction
This article examines the possibility of bringing the Hiroshima and Nagasaki Atomic Bombing victim's claims to the Inter- American Commission of Human Rights concerning the atomic bombing and the continuous omission of the US authorities in assisting the victims since the occupation of Japan. It will also provide the analysis of previous cases which raised questions on competence, ratione loci, ratione temporis and continuous violation of human rights interpretations.
1 The case
On August 6, 1945, the nuclear weapon Little Boy was dropped on Hiroshima by the crew of the American B-29 bomber Enola Gay, directly killing an estimated 70,000 people. By the end of the year, injury and radiation brought total casualties to 90,000-140,000.
At the time Declaration entered into force in the US on 19 June, 1951, when the American troops were still occupying Japan. They left Japan on 28 April, 1952 and although during this period the Declaration was already binding they did not provide any health assistance to the victims of the Hiroshima and Nagasaki bombing.
The survivors are still suffering substantial physical, mental and psychological disability and incapacity caused by the late effects of the nuclear bombing such as cancer, leukemia, mutation of blood cells and effects upon the ageing process, amongst others. These residual disabilities and incapacities continue to the current day, causing a terrible impact on the lives of the victims and will remain a permanent concern for these individuals and their families. The failure of US authorities to provide assistance to the victims considering that they were already bound by the American Declaration, constitutes a violation of Article I (right to life); Article V (right of freedom from abusive attacks on personal life); Article VII( right to protection for mothers and children) Article XI (right to preservation of health and well-being) and Article XVIII (right to a fair trial) of the American Declaration of Rights and Duties of Man.
2 Admissibility requirements
There are four admissibility requirements set forth in the Inter-American Commission regulations: That is the exhaustion of domestic remedies (Article 31); compliance with the six month rule (Article 32); no case pending before another international forum on the same subject (Article 33(1)(a)); and the provision of the details of the petitioner or his/her representative (Article 28).
In this case it is indispensable to consider the exhaustion of the US domestic remedies before filing a petition before the Commission. (See the article by Toshinori Yamada)
2.1 Competence ratione personae
Article 3 (l) of the OAS Charter states that;" The American states reaffirm the following principles:...(1)The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex".
The Convention extends ratione personae to 'all persons', the term 'person' being limited by Article 1(2) to every human being'. 'All persons are protected regardless of their nationality or lack of it.' The Article I of the American Declaration sets forth that "Every human being has the right to life, liberty and the security of his person.". Therefore, the protection of this instrument is not limited to nationals from the Inter-American countries. On February 19, 2002, the Commission granted precautionary measures to stop the deportation of Ikbal Iskander, citizen of Sudan and Egypt and of her four years old Canadian daughter. Iskander applied for refugee status in Canada, due to the religion persecution. The Commission requested the Canadian government not carry out the deportation of Iskander and her daughter. In this case, the petitioner was from a country non party to the Organization of American States but nevertheless the commission's protection extended to her. In this way, the core of the problem does not reside on the nationality of the victim, but on whether the person is under the jurisdiction of a State member of the Inter-American System.
Therefore,if it is recognized the American jurisdiction over Hiroshima in the time of the bombing, even the protection of the American Declaration and American Convention is extended to Japanese nationals, victims of the bombing.
2.2 Competence ratione loci
Competence ratione loci raises a question regarding the jurisdiction of the Inter-American Commission of Human Rights regarding the bombing of Hiroshima and Nagasaki. Was Japan under the jurisdiction of United States when the nuclear bombing happened? Is it possible to consider Japan as a territory that the Inter-American Commission can rule? Previous cases related to the extraterritorial application of the Declaration and Conventions were in countries within the Inter- American System.
The Inter-American Commission of Human Rights and European Court of Human Rights among other international organs have been addressing human rights violations which occurred outside the State's official territory.
The Coard et Al case concerned Grenadian claimants who had been involved in the overthrow of the Government. During the days the military operations took place , several individuals were arrested by American forces. The claimants filed a petition before the Commission on July 25,1991 claiming that American Forces had detained them incommunicado and mistreated them for periods of between 9 to 12 days. The Commission addressed the extraterritorial application in the following way:
"cunder certain circumstances the exercise of its jurisdiction over acts with an extraterritorial locus will not only be consistent with but required by the norms which pertain. The fundamental rights of the individual are proclaimed in the Americas on the basis of the principles of equality and non- discrimination-"without distinction as to race, nationality, creed or sex". Given that individual rights inhere simply by virtue of a person's humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state's territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state-usually through the acts of the latter's agents abroad. In principle the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under specific circumstances, the State observed the rights of a person subject to its authority and control. .." (Emphasis added by Cerna)
In the request for precautionary measures, on behalf of approximately 300 people arrested by US authorities in Afghanistan and other places , who are detained in Guantanamo Bay, Cuba, the Commission invoked the 'authority and control' argument in justifying its jurisdiction. The Commission did not refer to the Bankovic case in the provisional measures above mentioned. In the Bankovic case, citizens of the ex-Yugoslavia, representing relatives who died in NATO's bombardment of a radio station, presented a claim in the European Court of Human Rights. NATO's country members were part of the European Convention of Human Rights.
The Court decided that the Convention was made to guarantee the public order in Europe. As ex-Yugoslavia was not in the "espace juridique" of the Convention, the Tribunal decided that it did not have jurisdiction on the acts of NATO members.
In the decision of the precautionary measures, the Inter- American Commission did not refer to the Bankovic case, hence it is possible to infer that the protection of the American Declaration of Human Rights is not limited to the Americas.
Currently, the Falluja hospital precautionary measures petition, regarding the rights of people who had their rights violated in Iraq and a petition, claiming the rights of prisoners detained in Afghanistan and other countries , are under the Commission's examination.
The Declaration and Convention applies to any person who is subject to the 'jurisdiction' of a contracting party. 'Jurisdiction' refers to a state acting publicly against an individual, whether this occurs on its territory or elsewhere. In the same way, the Hiroshima /Nagasaki atomic bombing was a result of the US authorities acting against individuals who were in Japan.
2.3 Competence ratione temporis
Competence ratione temporis is a primary issue in this case. The Hiroshima and Nagasaki bombing happened in 1945, before the Inter- American Declaration of Human Rights (1948) and the Inter- American Convention on Human Rights (1969) were created. The Charter of the Organization of American States (OAS) was adopted in 1948 and the Commission was established in 1959. However, despite the fact that the bombardment happened before the establishment of the Commission, the results of that fact continue to the current day. The victims are still suffering from devastating mental and physical harm caused by the Nuclear bomb.
3 Continuing violation of human rights
The continuing violation happens when an act is committed in a certain moment, but continues due to the consequences of the original act.
The doctrine of "continuing violation" has been used by the Inter-American Commission to exert authority over any failure to investigate a past violation on grounds that an ongoing failure violates victims' Convention-protected right to judicial protection.
In the Moiwana village case , the Inter- American Court examined the violation which occurred before Suriname's acceptance of the Court's jurisdiction, but which prevailed after it. The Court argued that its jurisdiction is based on the State's failure to investigate the facts which occurred before the Convention's ratification.
In the Ovelario Tames case , the victim was allegedly beaten by military police officers and found dead in a prison in October, 1988. The Inter-American Commission accepted its own jurisdiction on facts which occurred before the Brazilian government ratified the Convention. It stated: "The fact that Brazil has ratified the Convention on 25 September, 1992, does not exempt its responsibility for violations of human rights occurred prior to that ratification, rights guaranteed in the Declaration, which has a binding character."
In the Blake case , an American journalist was executed by Guatemalan authorities before the State accepted the Tribunal's jurisdiction. In that case, Blake's forced disappearance lasted from 1985 until 1992, and in spite of the fact that his whereabouts were known by the government authorities, his next of kin were not informed. The Guatemalan government ratified the Convention in 1978 and accepted the jurisdiction of the Court in 1987, therefore, concerning the forced disappearance, the Court exerted its jurisdiction. The enforced disappearance was a continuous violation of the Convention Rights.
All the above mentioned cases refer to continuing violation of the Declaration and Convention Rights which happened after the establishment of the Commission. Even if the events occurred before the related countries had ratified the Convention, the Declaration was already binding for them.
The events in Hiroshima and Nagasaki occurred before the establishment of the Commission and the creation of the American Declaration. However, the effects of the tragedy still last until nowadays.
The American government, which is bound by the Declaration, has not taken any measures to minimize the health problems of those who survived the Hiroshima and Nagasaki Bombing.
4 Provisional Conclusions
1 It is necessary to exhaust the US legal remedies before bringing the Hiroshima /Nagasaki atomic bombing case to the Inter-American Commission of Human Rights.
2. According to the Charter of the OAS, it can be inferred that the protection of the Inter-American system is extended "without distinction as to race, nationality, creed or sex" to Japanese nationals.
3. In previous cases, the Commission's test to apply its extra-territorial jurisdiction was the concept of "authority and control" over the territory. However, the cases analysed in this paper concern the Inter-American Commission's exercise of jurisdiction over a member state of the OAS for acts perpetrated outside its national territory but not outside the region. The petitions concerning territories outside the OAS member states are still in process. In the precautionary measures for the Guantanamo detainees, the Commission also used the argument of "authority and control". Thus, the exercise of jurisdiction of the Commission is based on criteria that might be extended to territories outside the OAS member states.
4. Concerning the fact that the atomic bombing of Hiroshima and Nagasaki happened before the establishment of the Commission and existence of the Inter-American Declaration of Human Rights does not exempt the US authorities' responsibility from the victims' residual disabilities and incapacities which continue to the current day. The failure to act on the part of the US authorities might be interpreted as a continuing violation.
The main barriers which were verified at this stage of the research were the competence ratione loci and ratione temporis. After the Commission's decision on the provisional measures of the Falluja Hospital and the Detainees in Afghanistan and other countries we will be able ascertain the Commission's self-imposed limits on its jurisdiction. Concerning the ratione temporis problem, it is necessary to examine the concept of the continuing violation in more detail.

BIBLIOGRAPHY

CERNA, C. 'Extraterritorial application of the Human Rights Instruments of the Inter-American System' in F.Coomans and M. Kamminga(ed.), Extraterritorial Application of Human Rights Treaties., Antwerp, Intersentia, 141-174.

HARRIS, David. 'Regional Protection of Human Rights' in D.Harris and S. Livingstone (org.), The Inter-American System of Human Rights, Oxford, Clarendon Press, 2004.1-29.

ORMACHEA, Pablo. Moiwana Village: the Inter-American Court and the "continuing violation' doctrine, Harvard Human Rights Law, vol.19, 2006. Available at http://www.law.harvard.edu/students/orgs/hrj/iss19/ormachea.shtml

http://www.rerf.or.jp/general/qa_e/qa1.html

DECISIONS

Coard and Others v. United States ('US military intervention in Grenada'), IACHR Report No. 109/99, Case No. 10.951, 29 September 1999, Ann. Rep. IACHR 1999.

I/A Com H.R., Ikbal Iskander Case, Medidas Cautelares para Canad?, Informe Anual 2002, Cap?tulo III, par.20.

Request for Precautionary Measures Concerning the Detainees at Guantanamo Bay, Cuba, IACHR 12 March 2002, 41 ILM (2002)532.

Bankovic and Others v. Belgium and 16 Other Contracting States (Appl. no. 52207/99), ECtHR 12 December 2001.

Petition filed on 13 February 2003 by the Center for Constitutional Rights, International Human Rights Law Group, International Federation for Human Rights, Arturo Carillo and William J. Aceves. Available at http://www.globalrights.org/site/DocServer/TorturePetition_Feb03.pdf?docID=124 Accessed on 6 November, 2007.

Petition filed on 19 November 2004 by the Association of Humanitarian Lawyers. Available at www.humanlaw.org/hospital.html. accessed on 7 November, 2007.

Moiwana Village v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 124, at 1 (June 15, 2005

Ovelario Tames v. Brazil, IACHR Report N? 19/98, Case No. 11.516, 21 February, 1998, Ann. Report . IACHR 1998.

Order of the Court of August 16, 1995, Inter-Am. Ct. H.R. (Ser. E) (1995).