The Inter-American System of Human Rights (ISHR), during the last decade,
has influenced the process of internalization amongst the legal systems
in various countries in Latin America. During this period, more countries
have accepted the jurisdiction of the Inter-American court (such as
Mexico and Brazil) and have given the American Convention constitutional
status, or higher, compared to the laws of their judicial systems. Lawyers,
judges, legal practitioners, officials and social activists have learned
much about the workings of the ISHR and have begun to use it in a manner
that is no longer extraordinary or selective. In addition, they have
begun to cite its decisions and ground arguments in its precedents both
in the local courts and in the public policy debates. This led to the
gradual application of ISHR jurisprudence in constitutional courts and
national supreme courts, and most recently, although to a lesser degree,
in the formulation of some state policies. This process of incorporating
international human rights law at the national level led to important
For example, the legal standards developed by the jurisprudence of the
Inter-American Commission (IACHR or Commission) and of the Inter-American
Court (IACHR Court or Court) about the invalidity of the amnesty laws
pardoning gross violations of human rights, gave legal support to the
transparency of trials against those charged with crimes against humanity,
in Peru and Argentina. The standards set in the case Barrios Altos against
Peru have played a decisive role in invalidating the self-amnesty law
of the Fujimori regime, and in supporting the prosecution of crimes
committed during his administration (PERÚ, Barrios Altos vs.
Perú, 2005), but the decision in the case has had a cascading
effect and has influenced the legal arguments of Argentine courts by
invalidating laws of obedience (ARGENTINA, Simón, Julio Héctor
et al, 2005). Inter-American jurisprudence is also present, although
to a lesser extent, in recent decisions of the Chilean appellate courts1.
This is also relevant to the debates about reducing the penalties in
the peace process with paramilitary groups in Colombia, as well as the
political and judiciary treatment of the remaining issues of transitional
justice in Guatemala, El Salvador, Honduras, Paraguay and Uruguay. Recently,
cases alleging crimes against humanity that were committed during the
"Cold War" have been brought before the Court regarding Brazil
(IACHR, Julio Gomez Lund et al vs. Brazil, 2009c), Bolivia (IACHR, Renato
Ticona Estrada et al vs. República de Bolívia, 2007b)
and Mexico (IACHR, Rosendo Radilla Pacheco vs. México, 2008b),
which has influenced local political and legal discussions.
This process, however, is not linear. It encounters problems and obstacles
and has also suffered some setbacks. The ISHR, furthermore, finds itself
in a period of intense debates that seek to define its thematic priorities
and logic of intervention, in a new regional political environment of
deficient and exclusionary democracies, different from the political
landscape in which it was born and took its first steps, with the South
American dictatorships in the 1970's and the Central American armed
conflicts of the 1980's.
This article seeks to present an overview of some strategic discussions
that take place both within the Inter-American organs, and the human
rights community, about the role of the ISHR in the regional political
First, we will try to identify the role of the ISHR organs in three
distinct historical moments, presenting at each point the thematic priorities
and main l strategies for intervention. In this way, we will describe
the present role of the ISHR, its status as an alternative to democratic
systems, and its strategic use by civil society on the local and international
level, and by governments and state agencies.
In the article's second part, we will describe the expansion of the
ISHR's agenda into social and institutional issues, and present the
recent developments in structural equality and the recognition of special
rights for subordinate groups. In the second part, we will also call
attention to the approach to certain human rights conflicts in the region,
such as evidence of systemic racism, violence and exclusion, and we
will relate this structural analysis to the contextualization of individual
cases arising out of the massive human rights violations perpetrated
during the dictatorships.
Finally, in the third part of the article, we will briefly present a
preliminary agenda for discussion of some of the ISHR's challenges,
especially the review of its mechanisms for remedies, the procedures
for implementing its decisions, the procedural rules for the litigation
of multi-party cases, as well as the complex, tense relationship between
the ISHR and the national judicial systems.
2. The changing of roles in new political settings
Undoubtedly, the roles of the system's organs, of both the Commission
and the Court, have changed in light of the changing political landscapes
in the Americas.
At the beginning, the ISHR dealt with cases involving massive and systematic
human rights violations perpetrated under systems of state terrorism,
or in the context of violent internal armed conflict. Its role was,
in short, a last resort of justice for the victims of these violations,
as they could not look to national systems of justice that had been
devastated or corrupted. In this initial phase of political gridlock
within the member nations, the Commission's Country Reports served to
document situation with technical precision, to legitimate complaints
by victims and their organizations, and to expose and erode the image
of the dictators in the local and international spheres.
Later, during the post-dictatorial transitions in the 1980's and the
beginning of the 1990's, the ISHR had a broader purpose, as it sought
to monitor the political processes aimed at dealing with the authoritarian
past and its scarring of democratic institutions. During this period,
the ISHR began to delineate core principles about the right to justice,
truth, and reparations for gross, massive, and systematic human rights
violations. It set limits on the amnesty laws. It laid the foundation
for the strict protection of freedom of expression and the prohibition
on prior restraint. It forbade the military courts from judging civilians
and hearing human rights cases, limiting the space in which the military
could operate, as they continued to have veto power during the transition
and sought impunity for past crimes. It protected habeas corpus, procedural
due process, the democratic constitutional order and the division of
state powers, in light of the latent regression possibility to an authoritarian
state and the abuses of states of emergency (IACHR COURT, 1986, 1987a,
1987b)2. It interpreted the scope of the limitations imposed by the
Convention as regards the death penalty, invalidating it for minors
and the mentally ill, allowing it to be applied only in cases where
a crime was committed, and establishing strict standards of due process,
as a safeguard against the arbitrariness of the courts in imposing the
death penalty. It also addressed regional social issues which showed
a discriminatory bias by, for example, affirming equality before the
law for women asserting their familial and matrimonial rights, and the
rights of inheritance for children born out of wedlock, which the American
civil codes still considered "illegitimate."
During the 1990's, moreover, it also confronted with firmness state
terrorist regimes, such as the Peruvian regime of Alberto Fujimori,
documenting and denouncing violations that had also been committed in
South America in the 1970's, such as systematic forced disappearances
and torture, and the subsequent impunity for these state crimes. It
was also an important player in addressing the gross human rights violations
and violations of international humanitarian law committed in the context
of internal armed conflict in Colombia.
The present regional landscape is undoubtedly more complex. Many countries
in the region made it through their transitional periods, but were not
able to consolidate their democratic systems. These representative democracies
have taken some important steps, by improving their electoral systems,
respecting freedom of the press, the abandonment of political violence;
but they show serious institutional deficiencies, such as an ineffective
judicial system and violent police and prison systems. These democracies
also have alarming levels of inequality and exclusion, which cause a
perpetually unstable political climate.
In this new climate, the ISHR organs have sought not only to compensate
the victims in individual cases, but to establish a body of principles
and standards, with the objective of influencing the equality of these
democratic processes and strengthening the main domestic rights protection
mechanisms. At this stage, the ISHR faces the challenge of improving
the structural conditions that guarantee the realization of rights at
the national level. This approach takes as a given the subsidiary character
of the international protection mechanisms in light of the rights guarantees
made by the states themselves. It recognizes the clear limits of international
involvement and, at the same time, maintains the necessary degree of
autonomy from national political processes, to attain higher levels
of efficacy and observance of human rights.
The ISHR thus interprets certain procedural rules that define the criteria
for its intervention in such a way that the autonomy of the states is
respected. For example, there is a rule that requires "previous
exhaustion" of domestic remedies, as well as the rule of the "fourth
recourse," by which the ISHR refrains from reviewing the decisions
of the national courts in cases not directly governed by the Convention,
and satisfying procedural due process guarantees.
The first rule, of "prior exhaustion of domestic remedies,"
although it is procedural in nature, is a key factor in understanding
the working dynamic of the Inter-American system and especially its
subsidiary role. By requiring that parties exhaust all remedies available
in the state's national judicial system, it gives each state the opportunity
to resolve conflicts and remedy violations before the matter is considered
in the international arena. The scope of this rule in the jurisprudence
of the ISHR's organs defines the degree to which it is willing to intervene
as an international mechanism, based on the competence and effectiveness
of the national judicial system.
The second rule, known as the "fourth recourse," functions
as a kind of deference to national judicial systems, because it allows
them the autonomy to interpret local norms and decide individual cases,
subject to the exclusive condition that they respect procedural due
process guarantees established in the Convention3.
The ISHR has also come to recognize the new political environment of
constitutional democracies in the region, showing deference to the member-states
on how certain sensitive issues are defined, such as the design of electoral
systems in accordance with each social and historical context, and always
respecting the democratic l exercise of political rights4.
In some cases, moreover, the IACHR in its reviews has paid special attention
to the arguments developed by the state's appellate courts, which have
applied the provisions of the same Convention, or analyzed the same
issues with their own constitutional parameters. It is not a matter
of deference in the strict sense, but a kind of special consideration
given to certain domestic court decisions and the arguments presented
therein, which are given substantial weight as the IACHR conducts its
own review of the case. This kind of argument has been considered in
the analysis about the reasonableness of domestic laws that imposed
restrictions on fundamental rights. This was the case, for example,
when arguments made by local courts were considered in analyzing the
proportionality of damages awarded in a defamation case, to determine
whether the right to a free press had been violated (IACHR, Dudley Stokes
vs. Jamaica, 2008a). In addition, the IACHR considered a domestic court
decision about the reasonableness of a social security reform, to determine
if the reform complied with parameters of proportionality and progressiveness,
and thus if there were legitimate restrictions on social rights (IACHR,
Asociación Nacional de Ex Servidores del Instituto Peruano de
Seguridad Social y otras vs. Perú, 2009d).
But in the new regional political landscape, in addition to a change
in approach, it is also possible to identify a change in agenda.
As mentioned earlier, during the transitional phase, the ISHR contributed
to some institutional debates, such as the subordination of the armed
forces to civilian control and its involvement in internal security
matters, and the scope of the privileges and powers of the military
judicial system. These subjects had a direct connection with how past
violations were treated, as it involved the military's ability to pressure
and veto during the transitional period. In the aftermath of the transitions,
the institutional agenda has grown considerably in terms of the kind
of issues that come to the ISHR's attention.
A focuspoint of the ISHR's new agenda is to address issues relating
to the functioning of judicial systems, which have an impact on or connection
with the promotion of human rights. This includes procedural due process
guarantees of the accused in criminal proceedings, as well as the right
of certain victims, harmed by structural problems relating to the impunity
of crimes committed by the state (by police and prison officials), to
have equal access to the justice system. Strategies to combat organized
crime and international terrorism have incorporated some discussions
from the transitional period relating to the administration of justice,
such as the debate about the jurisdiction of military courts. In that
sense, it has become central in monitoring public security policies.
It also guarantees the independence and impartiality of the courts and
safeguards various issues related to the full protection of due process
and the right to judicial protection, and to the judicial protection
of social rights.
Another line of institutional issues considered by the ISHR in the post-transition
era relates to the preservation of the democratic public sphere in the
countries of the region. These issues include freedom of expression,
freedom of the press, access to public information, freedom of assembly
and association, freedom of protest and the gradual ripening of issues
relating to equality and due process of law in electoral matters.
Moreover, a priority of the ISHR's agenda at this stage are the new
demands for equality made by groups and collectives, relevant to the
institutional issues discussed above, as they include marginalized and
excluded sectors of society whose rights and ability to participate
and express themselves are affected, who suffer from institutional or
social patterns of violence, obstacles in accessing the public sphere,
the political system, or social or judicial protection. This question
will be explored in Sections 4 and 5.
In addition to broadening the agenda, in this third stage a change in
how the ISHR intervenes, and the impact of its decisions at the local
level can be observed.
The ISHR's jurisprudence has had a considerable impact on the jurisprudence
of the national courts that apply the norms of international human rights
law. It is important to consider that decisions made by the organs of
the system in a particular case, in interpreting the treaties applicable
to the conflict, have a heuristic value that transcends the victims
affected in this process. This international jurisprudence, moreover,
is often used as a guide for judgments issued by national courts, which
seek to prevent countries from being named on petitions and eventually
convicted in these international forums. This globalization of human
rights standards, while not attaining the same level of development
through the entire region and while subject to the precariousness of
the national systems, has undoubtedly had a positive effect on the transformation
of these same judicial systems, and has generated greater attention
amongst the state authorities in regard to the ISHR's developments.
Consequently, the jurisprudence established by the Commission and especially
by the Court, has brought about several changes in the jurisprudence
of the countries in the region on issues related to the weak and deficient
institutions of Latin American democracies. Take, for example, the case
about the decriminalization of defamation and the criticisms from the
press, access to public information, and limits on the criminal prosecution
of peaceful public demonstrations. Other issues include setting limits
and objective conditions for the use of pretrial detention, the detention
powers of the police and their use of public force; the determination
of guidelines for a separate justice system for minors, the right to
appeal a conviction to a higher court, the participation of victims
of state crimes in judicial proceedings. Finally, there are the cases
involving the recognition of procedural due process in the administrative
and judicial review of administrative acts, as well as basic safeguards
in the process of removal of judges, amongst other issues of great importance
for the functioning of institutions and constitutional order in the
states (MENDEZ; Mariezcurrena, 2000, ABRAMOVICH, cattle; COURTIS, 2007).
The influence of the ISHR, however, does not limit itself to the impact
of its jurisprudence on the jurisprudence of local courts. Another important
avenue for strengthening democratic institutions in the states stems
from the ISHR's ability to influence the general direction of some public
policies, and in the formulation, implementation, evaluation and oversight
of those same policies. It is thus common that individual decisions
adopted in one case generally impose upon states the obligation to formulate
policies to redress the situation giving rise to the petition, and the
duty to address the structural problems that are at the root of the
conflict analyzed in the case.
The imposition of these positive obligations is generally preceded by
a review of the legal standards, implemented policies, or lack of action
(omission) of the state. These obligations may include changes in existing
policies, legal reforms, the implementation of participatory processes
to develop new public policies and often the reversal of certain patterns
of behavior that characterize the actions of certain state institutions
that promote violence. This includes police violence, abuse and torture
in prisons, the inaction of the state when confronted with domestic
violence, policies of forced displacement of the population in the context
of armed conflicts, and massive displacement of indigenous peoples from
their ancestral lands.
Furthermore, in the context of individual cases, the ISHR, especially
the Commission, promotes friendly settlements or negotiations between
the petitioners and the states, where the latter will often agree to
implement these institutional reforms or create mechanisms to consult
with civil society in the formulation of policy. Consequently, in the
context of amicable solutions, some states have changed their laws.
For example, they repealed the defamation provisions that allowed the
criminalization of political criticism; created procedures to confirm
the whereabouts of disappeared persons; implemented massive programs
of reparations for victims of human rights violations or collective
reparation programs for communities affected by violence; implemented
public programs to protect victims, witnesses, and human rights defenders,
reviewed criminal cases in which defendants had been convicted without
due process, or reviewed the closing of criminal cases in which state
agents had been fraudulently acquitted of human rights violations; reformed
civil code rules that discriminate against children born out of wedlock;
or civil code rules that discriminate against women in their marital
rights; or those that implement quota laws for women in elections, or
laws on violence against women; implement protocols for the execution
of non-punishable abortions, or abolished immigration laws that affected
the civil rights of immigrants.
The IACHR also makes recommendations about public policy in its country
reports. In these reports, it analyzes specific situations where violations
have taken place and makes recommendations to guide state policies based
on legal standards5.
The Commission may also issue thematic reports that cover topics of
regional interest or of interest to several states. This type of report
has enormous potential to set standards and principles and to address
situations involving the collective or structural problems that may
not be adequately reflected in individual cases. They also offer a clearer
promotional perspective than the country reports, which are usually
seen as publicity for the states before the international community
and local groups. The process of preparing these thematic reports, in
turn, allows the Commission to dialogue with local and international
engaged stakeholders, collect the opinions of experts, agencies and
international financial institutions, OAS political and technical bodies,
and to establish ties with officials ultimately responsible for generating
policies in the studied fields6.
Finally, the Inter-American Court of Human Rights may issue advisory
opinions, which are used to examine specific problems that go beyond
the contentious cases, and set the scope of state obligations deriving
from the Convention and other human rights treaties applicable at the
regional level, such as the legal status of migrant workers, and the
human rights of children and adolescents. In these advisory opinions,
the Court has sometimes tried to establish legal frameworks for policy
development. For example, Advisory Opinion 18 seeks to define a set
of principles that should orient states' immigration policies, in particular
the recognition that undocumented immigrants should enjoy certain basic
social rights. In Advisory Opinion 17, the Court seeks to influence
policies aimed at imposing limits on criminal provisions directed at
3. The ISHR as an arena of transnational activism and political
action by governments
At the same time, the ISHR, both the Commission and the Court, have
gradually become a privileged arena of civil society activism, which
has produced innovative strategies to make use of the international
repercussion of the cases and situations denounced at the national level,
in the so-called boomerang strategies (NELSON; DORSEY, 2006, RISSE;
SIKKINK, 1999, SIKKINK, 2003).
Social organizations have used the international arena not only to denounce
violations and make visible certain questionable state practices, but
also to attain a measure of status that allows them to dialogue with
governments and their partners from a higher plane, and to invert the
power relationship and alter the dynamics of political processes. It
has sometimes facilitated the opening of spaces for social participation
and influence in the formulation and implementation of policies, and
the development of institutional reforms. These social organizations
have also frequently incorporated the legal standards set by the ISHR
as a parameter to assess and monitor state actions and policies, and
sometimes to challenge them in national courts or through the use of
local and international opinion.
In Latin American countries, many human rights organizations and other
socially minded organizations seek to vindicate rights, such as feminist,
citizen, environmental, and consumer rights organizations, amongst others;
in addition to monitoring state action, they have incorporated new strategies
of dialogue and negotiation with governments, to influence the direction
of its policies and attain transformations in the functioning of public
institutions. This change of perspective seeks to incorporate to the
traditional work of denouncing violations, a preventative and promotional
measure intended to curb abuses.
In this way, the community of ISHR users has grown considerably and
has become more varied and complex. The ISHR has begun to be utilized
much more frequently by the local social organizations, and not only
by the traditional international organizations that helped shape it
in its early days, or by those that have specialized in using its mechanisms.
Some of the more successful cases in terms of their social impact have
been sustained and promoted by "multi-level" coalitions or
alliances that have the capacity to act in different spheres both locally
and internationally. In general, these coalitions are formed by regional
or international organizations that have experience in using the ISHR,
and local organizations with the capacity for social mobilization, dialogue
and influence on public opinion and government policies. This type of
alliance has engendered an improvement in the articulation of strategies
in the international arena, as well as those used on the local level.
At the same time, many local organizations have gradually gained sufficient
experience to act on their own before the ISHR, and have occasionally
forged alliances amongst their peers in other countries in the region
to promote regional issues of common interest at the ISHR such as police
brutality, access to public information and violence against women (MACDOWELL
SANTOS, 2007). For example, a network of organizations specializing
in issues involving police violence and the criminal justice system
has suggested that the Commission involve itself in preparing a thematic
report on citizen security and human rights, setting clear standard
to guide democratic security policies throughout the region. The influence
of the network of social organizations has also resulted in a recent
report about the situation of human rights defenders developed by the
Commission, as well as how to follow up on the Commission's recommendations
in the States. A network of non-governmental organizations and community
media advocates that the IACHR adopts a series of fundamental principles
for the regulation of broadcasting.
In addition to legal public interest organizations, which generally
represent victims or groups of victims, certain kinds of cases before
the ISHR often involve community organizations that also are part of
networks or alliances with the legal organizations, to promote IACHR
cases, thematic hearings or reports. The work of the IACHR rapporteurs
on the rights of indigenous peoples and racial discrimination has considerably
expanded the use of the ISHR by Afro-American and indigenous communities.
It has also increased the involvement of unions who have an alliance
with human rights organizations, raising issues concerning the freedom
to unionize, and the right to fair labor practices and pensions.
In countries such as Argentina and Peru where the ISHR is better known,
private attorneys have begun using the international system as a new
forum for litigating various issues, including those relating to delays
in processing pension benefits, the application of emergency laws, and
the due process rights of the accused in criminal proceedings.
But the ISHR has also been actively used by some states or government
agencies with expertise in human rights to shed light on certain issues
and promote national and regional agendas. These processes have led
to the gradual formation of a specialized state bureaucracy to manage
these issues, which have tended to influence some aspects of public
management, such as human rights secretariats and commissions, specialized
divisions in Foreign Ministries, ombudsmen, human rights attorneys,
public defenders and special prosecutors, among others. Occasionally,
when governments have clear policies on these issues, a case at the
ISHR generally is considered an opportunity to shape policy in the areas
of governmental interest, to overcome resistance in the state itself
or other social sectors. This can be clearly seen in some amicable settlements
that induced change in legislation and national policies (TISCORNIA,
2008). Occasionally, the petitioners are independent public agencies
that litigate and sometimes negotiate on behalf of the government. Public
defenders' offices have become a frequent and important player at the
Some states, for example, have used, the Court's advisory opinions to
promote human rights issues that occupy a central role in their foreign
policy, such as the protection of its nationals who migrate to developed
l countries. For example, Mexico promoted the ISHR's pronouncements
about consular assistance in death penalty cases and those involving
the labor rights of undocumented immigrants, persuading the United States
to present itself before the Court as Amicus Curiae to defend the tenets
of its own policies. Recently the Argentine government, in conjunction
with private social organizations, promoted a discussion about the legality
of having states litigating before the Court, appointed judges to it
on an ad hoc basis, and on the potential impact on the principle of
impartiality. In the last three years, there have also been two interstate
lawsuits for the first time since the American Convention came into
The number of public officials, judges, public defenders, prosecutors
and judicial personnel that have come before the Inter-American Commission
and Court of Human Rights seeking urgent protection against threats,
intimidation and violence in retaliation for carrying out their duties
has also grown significantly. These conditions break the classic pattern
of the ISHR protecting victims from the abuses of authoritarian and
monolithic states, and show that the ISHR nowadays is more complex in
the execution of its duties, confronting democratic states that express
internal ambiguities, disputes and contradictions.
4. A broader agenda. Institutional exclusion and degradation
This gradual change in the ISHR's role in the new political environment
was accompanied by a gradual change in its agenda of issues. As has
been shown, however, some of the traditional issues have been neither
addressed nor displaced, as in the case of transitional justice. The
new agenda is characterized by the incorporation of new issues, which
coexist with traditional issues.
In recent years, the ISHR has increasingly confronted an agenda tied
to the problems stemming from inequality and social exclusion. After
enduring complicated periods of transition, Latin American democracies
find themselves threatened by the sustained increase in social inequality
and the exclusion of vast portions of the population from the political
system and the benefits of development, which imposes structural limitations
on the exercise of social, political, cultural and civil rights.
The problems of inequality and exclusion are reflected in the degradation
of certain institutional practices and the deficient functioning of
the democratic states, which engenders new forms of human rights vulnerability,
often related to the practices of authoritarian governments from past
decades. The issue is not that the states plan a systematic violation
of human rights, nor that the upper tiers of government seek deliberately
to infringe upon fundamental rights, but rather that states, with their
legitimately elected officials, are not capable of reversing and impeding
arbitrary practices committed by their own agents, nor of ensuring effective
mechanisms of accountability, on account of the precarious functioning
of their judicial systems (PINHEIRO, 2002). The social sectors that
live under conditions of structural inequality and exclusion are the
primary victims of this institutional deficit, which is reflected in
some of the cases on the ISHR's docket: police violence marked by social
or racial bias, torture and overpopulation in prisons, whose victims
are usually young persons from the lower classes; a generalized practice
of domestic violence against women, which is tolerated by state authorities;
the deprivation of land and political participation of indigenous peoples
and communities; discrimination against the Afro-Descendant population
in access to education and justice; the bureaucratic abuse of undocumented
immigrants; the massive displacement of the rural population in the
context of social and political violence.
Thus, one of the main contributions and, at the same time, principal
challenges of the ISHR regarding the regional problems rooted in institutional
exclusion and degradation, lies in its capacity to set standards and
principles to guide the actions of democratic States in specific situations,
through the jurisprudence of the courts, to determine the scope of rights,
as well as through the formulation of public policies, thereby contributing
to the strengthening of institutional and social guarantees of these
rights in different national spheres.
Faced with these types of situations, the Inter-American Commission
and Court have sought to examine not only isolated cases or conflicts,
but also the institutional and social contexts in which these cases
and conflicts develop and gain meaning, similar to its role during the
dictatorships and regimes of state terrorism, when the ISHR had monitored
the situation of certain victims, the execution and forced disappearance
of certain persons, a function of the context of massive and systematic
violations of human rights. At present, in various situations, it has
sought to frame particular facts in structural patterns of discrimination
and violence against certain social groups or sectors. To do so, the
ISHR has anchored itself to the principle of equality, which we will
be summarily presented below. The reinterpretation of the principle
of equality has allowed the ISHR to involve itself with social issues
in light of a reinterpretation of the scope of civil and political rights
established in the American Convention.
5. Rights in a context of structural inequality
It important to illustrate the change of focus mentioned above and
to discuss some ISHR interventions in cases concerning equality issues
that are associated with various forms of violence, or matters relating
to political participation and access to justice. These precedents constitute
a line of jurisprudence that tends to a socially mindful reading of
numerous civil rights in the American Convention, and affirms the existence
of duties of positive action and not just the negative state obligations.
These affirmative duties are generally exacted with greater intensity,
as a result of the recognition that certain social sectors live in disadvantaged
structural conditions in accessing or exercising their basic rights.
By observing the evolution of the jurisprudence on equality in the Inter-American
system, one concludes that the ISHR demands of the states a more active
and less neutral role, as a guarantee not only of the recognition of
rights, but also of the real possibility of exercising them.
In this sense, the historical perspective on the jurisprudence of the
ISHR shows the evolution of the concept of formal equality, developed
during the transitional period, to a notion of substantive equality
that has become more solid in the current phase characterized by the
end of the transition to democratic regimes, when the subject of structural
discrimination is presented with greater force in the cases considered
by the ISHR. Thus, the idea evolves from its perspective of equality
as non-discrimination, or as the protection of subordinates. This means
that it evolves from a classical notion of equality, which focuses on
the elimination of privileges or unreasonable or arbitrary differences,
and which seeks to produce equal rules for all, and demands of the State
a kind of neutrality or "blindness" with respect to differences
And it moves towards a notion of substantive equality, which requires
the state to assume an active role in attaining social equilibrium,
granting special protection to certain groups who have suffered historical
and structural discrimination. This notion requires the state to abandon
its neutrality and rely on tools to diagnose the social situation to
identify groups or sectors that should receive, in a given historical
moment, urgent and special measures of protection.
In a report recently published by the Inter-American Commission, there
is a systematization of the jurisprudence that shows the evolution of
the concept of equality in relation to women's rights (IACHR, 2007a).
There are some clear consequences of the adoption of the idea of structural
equality by the Inter-American system. First, affirmative action by
the state cannot be invalidated under a notion of formal equality. In
any case, challenges to affirmative action must be based on concrete
critiques of its reasonableness in light of the beneficiary group's
status in a given historical moment. The second consequence is that
states not only have the obligation not not to discriminate, but also
of adopting affirmative action measures in instances of structural inequality,
to ensure that certain marginalized groups be able to fully exercise
their rights. A third consequence is that the state can violate principles
of equality with practices or policies that on their face value are
neutral, but that have a discriminatory impact or effect on certain
This has already been noted by the Court, in the case of Yean and Bosico
against Dominican Republic (IACHR COURT, 2005d). A number of practices
that on their face value might appear neutral or lack the deliberate
intent to discriminate against a certain group could in fact have a
discriminatory effect on that group, thus violating the rule of equality.
These consequences are based on a social reading of the equality principle,
since these state actions can go beyond affecting a sole individual
and impact an underprivileged sector of the population. It is tantamount
to changing the lens and opening the prism. One need only observe the
social context and trajectories of certain individuals who are part
of a group suffering discrimination. Therefore, not only will norms,
practices and principles that deliberately exclude a given group, without
a legitimate purpose, violate the principle of equality, but so will
those that have a discriminatory impact or effect8.
At the same time, this concept of equality is reflected in the way the
ISHR has started to reevaluate the obligations of states with respect
to civil and political rights in certain social contexts.
Some important precedents on the extent of the state's duty to protect,
in relation to non-state actors can be highlighted, for example regarding
violence against women. The IACHR imposed special obligations of state
protection tied to the right to life and to physical integrity based
on an interpretation of the principle of equality in line with what
was discussed earlier. In the case of María da Penha Fernández
against Brazil, the IACHR, against a structural pattern of domestic
violence affecting the women of Fortaleza, Ceará state, where
there was a general practice of judicially sanctioned impunity in these
kinds of criminal cases, and the negligence of the local government
in implementing effective prevention measures, established that the
federal government had violated the victim's right to physical integrity
and equality under the law. It also established that the states have
a duty to take diligent preventative action to deter violence against
women, even with respect to non-state actors, based not only on Article
7 of the Convention of Belém do Pará but also on the American
Convention. The State's responsibility stemmed from not having adopted
duly preventative measures. The IACHR fundamentally assesses whether
there is a pattern or "systematic rule" in the State's response,
which expresses in its view a kind of public tolerance of the violence
denounced, to the detriment not only of the individual victim but also
of others similarly situated. The focus, as stated before, goes beyond
the situation of one particular victim, and instead is on the discrimination
and subordination faced by the particular social group. The structural
situation of women victims of violence on the one hand describes the
state's duty to protect and provide reparations in a particular case,
but also justifies the generalized recommendations made by the IACHR
that include, for example, changes in public policy, legislation and
judicial and administrative procedures (IACHR, Maria da Penha Maia Fernández
vs. Brasil, 2001a, Campo Algodonero: Claudia Ivette González,
Esmeralda Herrera Monreal y laura Berenice Ramos Monárrez vs.
México, 2007c). The IACHR gave special attention to the more
severe effects suffered by certain social groups as a result of violence
inflicted by state or non-state agents with the acquiescence or tolerance
of the State. In this vein, the Commission, for example, held Brazil
liable for not having adopted measures to prevent violence due to forced
evictions undertaken by private armies of landowners, an expression
of systematic rural violence tolerated by state officials, followed
by systematic impunity when criminal investigation of these incidents
are conducted. In light of this, the IACHR especially took into account
the situation of structural inequality amongst the rural population
in certain states in the Brazilian northern region, where there is collusion
between the powerful landowners, the police, and the state justice system
(IACHR, Sebastião Camargo Filho vs. Brasil, 2009a). In another
case, the IACHR held Brazil liable for systemic police violence directed
at black youth in the shantytowns of Rio de Janeiro, considering that
the extrajudicial execution of a young member of this social group,
was representative of this pattern, which in turn reflects a racial
bias in the state police's conduct, with the complicity of the federal
authorities (IACHR, Wallace de Almeida vs. Brasil, 2009b). Furthermore,
the Inter-American Commission and Court consider this increased vulnerability
that certain groups experienced in the context of the internal armed
conflict in Colombia, imposing upon the state specific duties of protection
that imply restrictions on the state's use of force, and special protection
against other non-state actors, as well as special reparation obligations
to a given community and socially progressive and culturally relevant
policies. These protections stem from the obligation to respect and
guarantee given cultural rights of ethnic groups, such as restrictions
on certain military activities in defense of the land of indigenous
peoples and black communities in Colombia9.
Amongst the groups suffering discrimination that require special protection
or treatment by the ISHR are indigenous peoples10 and the Afro-descendant
population (FRY, 2002, ARIAS; YAMADA; TEJERINA, 2004)11 and women with
respect to the exercise of certain rights, such as physical integrity12
and political participation13. It has also emphasized the states' obligation
to protect vulnerable groups, such as children who live on the street
or in detention centers, the mentally ill who have been institutionalized,
undocumented immigrants, the rural population displaced from their land,
and the poor infected with HIV/AIDS, amongst others.
This brief review shows that the ISHR does not merely use a formal notion
of equality, which requires objectively reasonable laws and prohibits
laws that favor or disfavor groups in an unreasonable, capricious or
arbitrary manner, but rather moves towards a concept of material or
structural equality that recognizes that certain sectors of the population
are disadvantaged in exercising their rights, due to legal and factual
obstacles and consequently require the adoption of special measures
to guarantee equality. This implies the necessity of differential treatment,
when due to circumstances affecting a disadvantaged group, when identical
treatment involves restricting or cutting access to a service or good,
or the exercise of a right. It also requires an examination of the social
trajectory of the alleged victim, the social context in which the norms
and policies are considered, and the degree of subordination of the
social group in question14.
The use of the notion of material equality implies a definition of the
state's role as active guarantor of rights, in social contexts of inequality.
It is also a useful tool to examine the legal framework, public policies
and state practices, both their formulation and effects. The imposition
of positive obligations has very important consequences for the political
or promotional role of the ISHR, as it imposes on states the duty to
formulate policies to prevent and redress human rights violations affecting
certain disadvantaged groups or sectors.
It also has direct consequences on the debate about the availability
of judicial remedies, as it is known that affirmative obligations are
more difficult to impose on national justice systems, especially when
positive behavior is required to resolve collective disputes.
Affirmative obligations are also in tension with the capabilities of
American states. The ISHR has gradually imposed further obligations
on the state to protect rights and deter violations with respect to
non-state actors in particular circumstances. This expansion of state
obligations highlights the gap between the expectations placed on atates
and the states' weak institutions and ineffective policies. To meet
the exacting standards of the ISHR in regards to affirmative obligations,
demands institutions that can formulate and implement policies and adequate
human and financial resources. One can begin to see with greater clarity
the growing gap between normative discourse and the actual capacity
to meet the obligations imposed.
Affirmative obligations have also been imposed by the ISHR in relation
to the right of participation of indigenous peoples. Amongst others,
this includes the right to be consulted ahead of time about the policies
that might affect their communal lands, such as the exploitation of
economic and natural resources, and the right to dialogue with governmental
bodies and other stakeholders through its own mechanisms of political
representation (AYLWIN, 2004). This topic shows the direct link between
the exercise of social and cultural rights and of civil and political
rights, since the basis of the argument is the special ties that indigenous
peoples have to their lands and natural resources, which not only puts
at risk economic interests, but also the preservation of their cultural
identity and the very perpetuation of their culture15. These rights
that are determined by international agreements, such as the ILO Convention
169, have also been recognized as being based directly on the American
Convention, from a socially informed rereading of Article 21, which
enshrined the right to property.
In a series of decisions the Inter-American Court has established the
obligation of states to have adequate mechanisms for political participation,
the production of information on social and environmental impacts, and
consultation seeking consent of the indigenous peoples in decisions
that affect the use of natural resources or alter its territorial boundaries.
In this sense, it is a matter of recognizing the powers of diverse political
participation in shaping the State's public policies, but which at the
same time goes beyond a procedural right and achieves the recognition
of a "special group right" to preserve an area of self-government
or autonomy in such matters (IACHR COURT, Comunidad Mayagna (Sumo) Awas
Tingni, 2001, IACHR COURT, Masacre de Plan Sanchez vs. Guatemala, 2004a,
Comunidad Moiwana vs. Suriname, 2005a, IACHR COURT, Comunidad Indígena
Yakye Axa vs. Paraguay, 2005b, IACHR COURT, Pueblo Saramaka vs. Suriname,
2007). While the ISHR's case law has established that it does not confer
veto power upon indigenous peoples, this is undoubtedly one of the most
contentious issues of those presently addressed by the ISHR, as one
can more clearly see the tension between the recognition of a favorable
group right, and certain economic development strategies of the states
meant to promote the public interest.
In a recent decision issued by the Inter-American Court of Human Rights,
the obligation was imposed upon the states to adopt affirmative measures
to ensure that the indigenous communities can participate, on equal
footing, in making decisions on issues and policies that influence or
could influence their rights in the development of those communities,
so that they can integrate themselves into state institutions and organs
and participate in a manner that is direct and in proportion to their
populations in the management of public affairs, and do so through their
own political institutions and in accordance with their values, customs,
habits, and means of organization.
The Court, in its ruling in the Yatama case (IACHR COURT, Yatama vs.
Nicaragua, 2005c)16, determined that the Nicaraguan law on the monopoly
of political parties, and the decisions issued by the state's electoral
organs, had unreasonably limited the possibility of electoral participation
by an organization representing indigenous communities from the country's
Atlantic coast. This case also expresses an affirmation of the principle
of structural equality, as the Court requires the State to show flexibility
in applying the electoral norms of general applicability so that they
fit the mechanisms of political organization that express the cultural
identity of a group. Ultimately, the Court recognizes a "special
right conferred upon a group" (KYMLICKA, 1996, 1999), which gives
the minority group certain "external protections" that are
considered indispensable for the preservation of its autonomy, but also
its participation in the State's political structures.
The ISHR has also imposed strong affirmative obligations to ensure the
right to have access to justice, which provides another layer of protection
in the field of substantive equality. The ISHR has set specific standards
about the right to have access to judicial and other kinds of remedies
to sue for the violation of fundamental rights. In this regard, the
state's obligation is not merely negative, not to impede access to these
remedies, but rather fundamentally positive, to organize the institutional
apparatus in such a way that all, and especially the poor and the excluded,
can obtain these remedies, thereby overcoming social and economic obstacles
that render access to justice more difficult. Moreover, the State should
organize a state legal aid office, as well as mechanisms to reduce the
costs of litigation and make it affordable, for example, by implementing
a system that waives costs17. The policies that aim to ensure that the
indigent receive legal services act as mechanisms that compensate for
conditions of material inequality that affect the ability to effectively
defend their own interests and, thus, are judicial policies that are
related to social policies. The ISHR has established that the State
has a duty to organize these services to compensate for conditions of
inequality, and to ensure a level playing field in a judicial proceeding.
It has also imposed certain concrete due process obligations relating
to judicial proceedings involving social issues, such as judgments regarding
labor and pensions rights and eviction cases. Recently, it established
some indicators to assess whether the states are honoring these obligations.
This basis of positive obligations imposed on states, linked to the
recognition of an assessment of inequality that characterizes the American
reality, sometimes serves as a framework for examining public policy
in the thematic and country reports, as was mentioned above, and is
a central tool for the promotional work of the ISHR bodies.
6. The effectiveness of the decisions. Coordinating activities with
local judicial systems
The authority of the decisions and of the jurisprudence of the System
depends in part on their social legitimacy and on the existence of a
community of engaged actors who monitor and disseminate their decisions
and standards. It does not exert its influence through coercive mechanisms,
which it lacks, but through a power to persuade that it should build
upon and preserve.
Thus, in countries in which international human rights law is part of
daily legal discourse and arguments raised in the courts, there are
some factors that should be highlighted. On the one hand, the ISHR has
gained legitimacy through its association with the political processes
of countries at key moments, especially the resistance to dictatorships
and the reconstruction of the democratic and constitutional order. On
the other, and in part because of this, there is a community of social,
political and academic actors who consider themselves protagonists in
the ISHR's evolution and participate actively in the national implementation
of its decisions and principles.
Many countries in Latin American ratified human rights treaties and
joined the ISHR as they transitioned to a democratic regime, as a kind
of antidote to reduce the risk of a return to authoritarianism, tying
their legal and political systems to the "mast" of international
protection19. Subjecting human rights issues to international scrutiny
was a functional decision made in furtherance of institutional consolidation
during the transition period, as it served to fortify fundamental human
rights protection in a political system hamstrung by military actors
with veto powers, and still powerful authoritarian pressures.20
In Argentina, for example, support for human rights treaties takes place
in 1984 at the beginning of the transition to democracy. The incorporation
of human rights treaties into the constitutional hierarchy in 1994 was
an important step in this process. Another important step was the Commission's
visit to the country in 1979 during the military dictatorship, and its
report, which served to strengthen victims' rights organizations and
to weaken the government in the international community. In Peru, the
legitimacy gained by the Commission and Court for denouncing human rights
violations committed during the Fujimori administration has been critical.
The IACHR's visit to Peru in 1992, and later in 1999, and its report
about "democracy and human rights," together with the Court's
paradigmatic decisions on anti-terrorist legislation, freedom of expression
and military commissions, helped document and expose the gravity of
rights violations committed during this period. The full return of Peru
to the ISHR in 2001 and the acceptance of responsibility, before the
international community, for the atrocities committed during the Fujimori
regime, were core policies of the transitional government. This has
contributed to the formation of a group of social organizations, academics,
judges and legal practitioners that are familiar with the system.
While in the last decade countries in the region have made considerable
progress incorporating international human rights law into their national
legal system, the Court's jurisprudence is seen as a guide, even an
"indispensable guide" for the interpretation of the American
Convention by local judges,21 the process is not linear and there are
Recent decisions of appellate courts in the Dominican Republic and Venezuela
have downplayed the forcefulness of the Court's decisions and sought
to give national courts the power to review its decisions (a legality
test), to assess the compatibility of the international organ's decision
with the country's constitution. This is an ongoing debate amongst the
continent's different judicial systems, where resistance to the incorporation
of international human rights law in national legal systems still carries
considerable weight, and many argue for greater national autonomy in
The legal review of these decisions goes beyond the scope of this article.
It is noteworthy, however, that, often, certain positions that criticize
the growing limitation on the autonomy of states in addressing human
rights issues often start with a simple vision or scheme to create international
norms and apply them domestically. On the one hand, they downplay the
importance of the participation of social actors and local institutions
in creating norms and international human rights standards. On the other,
they consider the domestic application of international norms as if
it were an external imposition upon the national political and legal
system, without considering that this incorporation is only possible
through the active participation of relevant political, social and judicial
actors, and by the gradual building of consensus in various institutional
settings. Although there is typically a clear boundary between the international
and domestic spheres, the boundaries are blurred when the dynamic of
international mechanisms is examined. There is a constant back-and-forth
between the local and international spheres, both in creation of human
rights norms, and in their interpretation and application. Thus, relevant
social actors and local politicians often participate in the process
of the creation of norms in the international sphere, through both the
ratification of treaties as well as decisions issued by international
organs, which interpret their provisions and apply them in specific
cases. At the same time, these international norms are incorporated
into national legislation by the respective Congresses, governments
and judicial systems, and also with the active participation of social
organizations that promote, demand and coordinate the domestic application
of international norms before various state organs. The application
of international norms on the national level is not a mechanical act,
but rather a process that involves different kinds of democratic participation
and deliberation and provides ample room for a rereading or reinterpretation
of the principles and international norms in accordance with each national
In regard to the ISHR, as was shown in paragraphs 2 and 3 of this article,
nowadays, in contrast with the periods of dictatorship, its intervention
in certain domestic matters may reflect its working relationship with
diverse local actors, both public and social, that participate in the
formulation of demands on the international level, including how best
to implement the ISHR's standards and rulings internally23. It is thus
difficult to conceptualize its intervention as a simple limitation on
the autonomy of national political processes. International intervention
in this context is varied and complex, but generally has the support
of strong local actors, who help apply international standards on the
domestic level. For example, on occasion the ISHR has leaned on civil
society to monitor government activity in the classical manner24; it
can also coordinate with the federal government to implement policies
in the local states and provinces25; occasionally it will rely on court
decisions to develop guidelines that the Congress and Government can
use for follow-up action26; or the Governments or the Congresses ask
for its intervention to help build consensus amongst the other governmental
branches, such as the Judiciary27, or to monitor the resistance of local
social and political actors regarding the implementation of measures28.
Often local courts cite ISHR decisions to monitor governmental and congressional
policies29. We also saw that in certain cases, and in particular in
"friendly settlement" negotiations, the texture of alliances
is even more complex, as even public agencies petition the ISHR, sometimes
in partnership with social organizations, looking to trigger international
scrutiny of particular questions. With this brief review, one does not
intend to deny the importance of preserving the political autonomy of
the states to address certain issues, but rather to put into perspective
certain interpretative approaches about how an international justice
system actually works and how it relates to national political processes.
An important factor in increasing the application of international law
by national justice systems is the presence of a strong academic community
that critically discusses the international system's decisions and provides
input as to how judges and legal practitioners can make use of this
jurisprudence. This local and regional academic community is not only
indispensable in ensuring the application of Inter-American standards
at the domestic level, but also to hold the ISHR organs themselves accountable
and exert pressure for an improvement in the quality, consistence and
technical rigor of their decisions. While recently there have been clear
signs of progress, it is still not possible to verify the existence
of this community at the regional level. There is little discussion
and critique of the decisions of the Court and Commission, and these
decisions are hardly known in several countries. The underwhelming debates
that have taken place recently have resulted in a reassessment, at least
on a theoretical level, of some premises. As an example, it is interesting
to consider issues rooted in traditional criminal doctrine and relevant
to the criminal prosecution of gross human rights violations established
in the ISHR's jurisprudence and its impact on the rights of the accused,
such as the principle of res judicata and ne vis in idem (MARGARELL;
FILIPPINI, 2006), as well as discussions in constitutional theory about
the value of the decisions issued by international human rights organs.
The democratic deficiencies of these international organs, or their
lack of knowledge about what goes on inside national political communities,
are questioned (GARGARELLA, 2008)30.
It is true that the level of compliance of particular decisions issued
by the ISHR is important vis-à-vis reparation measures, as well
as on measures of legislative reform, mentioned above. In both cases,
some preliminary studies suggest that the highest level of compliance
is found in the context of friendly settlements, where the state has
the autonomy to determine how it will meet the terms of the agreement.
The main problems, however, regarding non-compliance with the IACHR's
recommendations and the Court's judgments, relates to criminal investigations
conducted by the state, particularly when they have closed the investigation
and its reopening could affect the rights of the accused. In some countries,
courts have significantly deteriorated while participating in a culture
of widespread impunity, which is not limited to cases involving human
rights violations. The ISHR has used its review of structural patterns
of impunity to invalidate judicial decisions that attempt to close the
investigation of such crimes, usually to benefit groups in power, to
the detriment of a certain class of victims31.
There have been no significant advances in how states' internal mechanisms
implement decisions issued by the ISHR's organs32. This in particular
becomes an obstacle when dealing with the impositions of affirmative
obligations. Complying with the reparation measures issued by an international
organ requires a high level of coordination between governmental agencies,
which is often not achieved. This significantly hampers the processing
of the case, the work of the ISHR's organs, and the enforcement of decisions.
Effectively coordinating between agencies even within the same government
is complex, and even more so when the government must coordinate its
activities with Parliament of the judicial system, when the measures
involved in a case require legal reforms or the filing of lawsuits.
This issue is even more problematic when agencies from the federal government
must coordinate their activities with state governments in a federalized
The Inter-American Commission and Court drafted a report for the General
Assembly of the OAS about non-compliance with their decisions, but they
are given minimal time to present information on the states' mechanisms
of implementation. Moreover, there is no serious debate within the system
on how to improve enforcement mechanisms of a political nature and attain
greater commitment by the various organs of the OAS.
The most effective enforcement mechanism has been the creation of institutions
of international supervision, such as follow-up hearings before the
Commission or Court. Many victims' rights organizations prefer these
international supervisory mechanisms to internal enforcement systems,
since they realize that attempting to compensate the victims at the
national level will be disadvantageous for them, in light of the state's
excessive power. Only the involvement of an international organ can
level the playing field (ABREGÚ; ESPINOZA, 2006).
Another point to consider when examining obstacles reducing the system's
effectiveness is the kind of remedy available, such as reparation measures
in contentious cases, such as provisional or cautionary measures. Often,
the remedies proposed result from suggestions made by the petitioners
and victims' representatives, and there is no line of case law about
this. Furthermore, the remedies are designed in accordance with a model
developed during the transitional period, emphasizing the thoroughness
of the investigation and determination of those responsible for the
violations, and placing less emphasis on the structural problems the
violations represent. The system of traditional remedies does not fully
fit with the type of conflict found in the new agenda we referred to
earlier, above all, when the ISHR does not limit itself to judging past
events, but seeks to prevent harm and the aggravation of precarious
situations, and aims to bring about the reversal of systematic patterns
or overcome institutional deficiencies. This was explained more clearly
in the context of the Court's interim measures in connection with prison
reform. These issues involving inhumane detention conditions and structural
patterns of violence tolerated by the state and federal authorities,
functions as a kind of collective, international "habeas corpus"
petition. They have developed an interesting debate about the kind of
remedies and local and international mechanisms of supervision. The
Court, at the request of the petitioners and the Commission, has gradually
modified the kind of remedies imposed on the federal government and
state governments, but it still has not achieved adequate compliance
with its orders. The logic behind the remedies is similar to the remedies
granted in the context of structural reform litigation in national courts.
In this kind of case, it is necessary to balance several competing interests
and give the government room to adopt measures, introducing medium term
and long-term plans of action. It also seeks to protect the right to
access information, and the right of victims and their representatives
to participate in shaping these policies (SABEL; SIMON, 2004, GAURI;
BRINKS, 2008, ABRAMOVICH, 2009). It is still open to discussion whether
these kinds of international supervision measures can be effective,
without involving the national judicial l system and national public
organs that monitor and evaluate the situation inside the penitentiary
The persistence of low levels of effectiveness of these types of structural
remedies can lead to a rethinking of all facets of the ISHR, and erode
the Court's legitimacy. The ISHR has begun to develop a model of structural
litigation to protect groups, without having refined it or engaged in
an in-depth discussion about the limits and potentialities of its procedural
rules34, its system of remedies, and its mechanisms for the supervision
of its decisions.
The debate about the effectiveness of international supervision is tied
directly to a question that is critical to democratic processes, which
is the poor performance of local judicial systems.
The chart below shows a division by topic of petitions received by the
IACHR in 2008. The problems associated with the functioning of national
judicial systems were the central focus, as 62% of the complaints filed
are on this topic. A further breakdown of the "justice" complaints
reveals that 23% dealt with due process, 15% with labor law, and 9%
with administrative procedure.
Without a doubt, the response of national justice systems is critical
to improving the effectiveness of the ISHR. It has taken important steps
on this path by setting clear principles on what constitutes independent
and impartial courts, a reasonable length of trial, the exceptional
use of precautionary imprisonment, the reach of res judicata, and judicial
review of administrative decisions, amongst others. A better systematization
of this case law can serve as the guiding framework for judicial reform
policies in the region, improving the enforcement of rights in local
judicial systems. The monitoring of national judicial systems is a priority
on the IACHR's agenda, which can be concluded from the themes of its
recent reports and documents.
The development of affirmative obligations in the field of human rights,
as well as of rights that may have a collective dimension, requires
determining with greater precision what constitutes adequate and effective
remedies in furtherance of their protection. An adequate and accessible
system of collective actions, such as collective protection, writs of
mandamus, class action suits, and emergency precautionary protective
measures, can promote local litigation in the public interest that allows
national courts to rule on many cases heard in the international arena.
The promotion of judicial remedies for local public interest litigation,
in the field of human rights, is therefore also a strategy the ISHR
Undoubtedly, the ISHR has significant legitimacy, which originated
in its efforts to destabilize the dictatorships, and continued as it
monitored the process of transition to democracy. In this article, it
was suggested that in the present political landscape in Latin America,
the strategic value of the ISHR consists in strengthening democratic
institutions, especially judicial systems, and national efforts to overcome
current levels of exclusion and inequality. In light of this, in addition
to the efficacy of its jurisprudence and the development of its system
of individual petitions, the ISHR should reflect on its political role,
setting its sights on the structural patterns that impact the effective
exercise of rights by disadvantaged sectors of the population. To achieve
this, it should safeguard its subsidiary role to the national justice
systems and ensure that its principles and standards are incorporating
not only the reasoning of domestic courts, but the general trend of
the laws and governmental policies.
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1. The Court invalidated the provisions of Chilean self-amnesty
in (Inter-American Court of Human Rights, Almonacid Arellano et al vs.
Chile, 2006b). Without citing this precedent, arguments can be found
in international humanitarian law and international human rights law
that are grounded in the judgments of the Chilean Supreme Court, which
struck down this norm (CHILE, Events that occurred in the Cerro Chena
2. In these decisions, the Court develops a basic doctrine about the
relationship between human rights, procedural due process, the rule
of law and democratic systems, with representational bodies reflecting
the popular will.
3. See the doctrine explained by the IACHR in its most recent reports
about inadmissibility, which includes declining to review criminal convictions
that are allegedly unfair, given the impossibility of substituting its
judgment for that of the national courts in the assessment of evidence
(IACHR, Luis de Jesus Maldonado vs Manzanilla. Mexico, 2007d). Of course
the line between reviewing court judgments or evaluating evidence of
reasonableness, and observing certain procedural safeguards established
by the Convention, is sometimes blurry, and requires fine-tuning technical
4. See the debate about positive state obligations in electoral matters,
and the deference granted to design electoral systems and political
parties (IACHR, Jorge Castañeda Gutman vs. México, 2006,
2008c; IACHR COURT, 2008).
5. See, for example, a report about the human rights situation in a
country that reflects the agenda of social exclusion and the perspective
of impact on public policies: (IACHR, 2003, 2007d).
6. Regarding the value of these thematic reports, as an impactful tool
at the IACHR in the context of the region's deficient democracies, see
the precise analysis of (FARER, 1998). For an example of this type of
thematic report, see (IACHR, 2006a). For an example of a thematic report
applied in the domestic context, see (IACHR, 2006b, 2009a, 2009b).
7. See (IACHR, Nicaragua vs. Costa Rice, 2007). In June 2009, Ecuador's
Attorney General filed a petition against Colombia with the Executive
Secretary of the IACHR, alleging violations of the American Convention
for the death of Franklin Aisalia, the result of a Colombia military
operation in March 2008 against a FARC encampment in Angostura, Ecuador.
8. Along these lines, the Court held in the case Niñas Yean y
Bosico vs. República Dominicana (IACHR COURT, 2005d): "The
Court considers that the binding legal principle of equal and effective
protection of the law and non-discrimination mandates that the States,
in regulating the mechanisms of granting citizenship, should abstain
from promulgating regulations that discriminate on their face or in
effect against certain sectors of the population when exercising their
rights. Moreover, States must combat discriminatory practices at all
levels, especially in government, and ultimately must adopt the necessary
affirmative measures to ensure effective equality under the law for
9. The Court's interim measures are available, in the case of the indigenous
people Kankuamo (Inter-American Court, 2009a), and in the case of the
Afro-Colombian communities of Jiguamiandó and Curbaradó
(Inter-American Court, 2009c), amongst many others. See also the situations
mentioned in the context of the Colombian armed conflict (IACHR, 2008d).
10. Regarding the States' affirmative obligations to guarantee the exercise
of certain civil, political and social rights of members of the indigenous
communities, see the following cases: Masacre de Plan Sanchez vs. Guatemala
(Inter-American Court, 2004a); Comunidad Moiwana vs. Surinam (Inter-American
Court, 2005a); and Comunidad Indígena Yakye Axa vs. Paraguay
(Inter-American Court, 2005b). Recently, this principle led the Court
to reinterpret the State's obligation regarding the right to life to
include a duty to ensure a minimum level of health, water and education,
tied to the right to a life of dignity of an indigenous community expelled
from its lands, in the case Sawhoyamaxa vs Paraguay (Inter-American
Court, 2006a) and subsequent decisions monitoring the execution of the
11. See the case Simone André Diniz v. Brazil (Inter-American
Commission, 2002), declared admissible by the Inter-American Commission
for the state's breach of a duty to protect individuals from discrimination
based on color or race.
12. Regarding the obligation to adopt affirmative policies and measures
to prevent, punish, and eradicate violence against women, see (Inter-American
Commission, Maria da Penha Maia Fernández vs. Brasil, 2001a).
13. Regarding quotas in the Argentine electoral system, (Inter-American
14. For a discussion of these notions of equality in legal philosophy
and constitutional law, see the following examples (YOUNG, 1996, FERRAJOLI,
1999, GARCIA AÑON, 1997, FISS, 1999, GARGARELLA, 2008, SABA,
15. Regarding collective rights for the preservation of a culture and
the neutrality of the liberal state, see the classic essay by Charles
Taylor (1992) and Anaya (2005).
16. In this decision, the Court began to define the scope of the right
to political participation enshrined in Article 23 of the American Convention
and asserts that it includes participation in formal electoral processes
as well as participation in other mechanisms for discussion and monitoring
of public policies. In its sentence the Court also states with greater
precision the scope of the State's obligation to ensure such participation
in socially disadvantaged groups that are trying to exercise this right.
The Court links this right to both formal and substantive equality,
which includes the right to association and political participation.
On this topic, see the concurrence of Judge Diego García Sayan.
To better understand the Court's reasoning in Yatama, it is helpful
to read a subsequent, contrasting case about the exclusion of independent
candidates, especially considering in Yatama the existence of a subordinate
group with its own specific cultural characteristics (Inter-American
Court, Jorge Castañeda Gutman vs. México, 2008).
17. Inspired by the Airey case, the Court held: "the circumstances
of a particular procedure, its meaning, its character and its context
in a given legal system, are factors underlying the determination of
whether legal representation is necessary to satisfy standards of due
process", par. 28. In addition, the Court explicitly referenced
the State's obligation to guarantee free legal services to the indigent
when necessary to ensure equal and effective access to justice, in the
OC 18/03 Status and Rights of Undocumented Migrants. In this document,
the Court said: "It violates the right to judicial guarantees and
protection for several reasons: the risk the individual takes when he
appears at administrative or judicial hearings of being deported, expelled
or deprived of his liberty, and for the refusal to provide him with
free legal services, which keeps him from fully vindicating his rights."
(IACHR COURT, Advisory Opinion OC-11/90, 1990).
18. See also the indicators on access to justice and social rights developed
in the IACHR's report (2008a).
19. John Elster came up with this metaphor to refer to the constituent
act in his book "Ulysses and the sirens: studies on rationality
and irrationality" (1979).
20. For some authors, such as Andrew Moravcsik, recently established
and potentially unstable democracies have more incentive to ratify human
rights treaties and use international legal systems as a mechanism for
the consolidation of democracy. The loss of a certain degree of self-determination
that results from the ratification of these treaties and the acceptance
of international jurisdiction imposes a cost in how it limits the discretion
of the government and of the local political system, which gains the
advantage of a reduction in political uncertainty (MORAVCSIK, 2000).
Along the same lines, see Kahn, Paul W. (2002).
21. For example, see the Argentine Supreme Court's jurisprudence in
cases such as "Giroldi"; "Poblete"; and "Arancibia
Clavel," amongst others (ABRAMOVICH; BOVINO; COURTIS, 2006).
22. Martín Bohmer's response to critics who claim international
law lacks democratic validation signals that the moment of validation
cannot be limited to the celebration of treaty ratification or the approval
of international norms, as it encompasses how it is interpreted and
applied by courts and local politicians. International norms are thus
not a finished and unambiguous product, but rather are open to different
interpretations on the national level, and allow for substantial deliberation,
as well as a consideration of the social and political context of each
community. (BOHMER, 2007).
23. In this vein, trying to answer the question as to what states should
obey international law, Harold Koh posits that the assumption of international
legal obligations is the result of a "transnational legal process"
that consists in complex sub-processes that include the articulation,
interpretation and incorporation of international law on the local level,
through social, legal and political mechanisms (KOH, 1996, 1997, 2004).
24. For example, when it drafts its reports, it receives information
about particular situations through hearings at its headquarters, or
visits to the country.
25. This can be seen, for example, in certain cases about overcrowding
and violence in state prisons in Brazil and Argentina, where the ISHR's
intervention has resulted in the intervention of the federal government
in local penitentiary systems. Recently in Mexico, there was a friendly
settlement agreement with the federal government in Mexico that led
to the adoption by local states of a protocol on non-punishable abortions.
26. For example, in Colombia, the IACHR has been used the decisions
of the Constitutional Court on internally displaced persons as a framework
to monitor human rights situations (COLOMBIA, T-025, 2004, IACHR, 2007b,
2007e). Conversely, some of the Constitutional Court's decisions, for
example on displaced women in the context of the Colombian conflict,
have imposed lending obligations on the State and based its reasoning
on other constitutional standards, decisions, progress reports and case-law
from the Inter-American human rights system. Even a recent decision
of the Constitutional Court invited the IACHR to join a compliance monitoring
system of the domestic ruling (COLOMBIA, Auto 92, 2008).
27. Take, for example, the friendly settlement agreement about Peruvian
amnesty in the Barrios Altos case, where the Peruvian government, the
petitioners and the IACHR asked the Inter-American Court to define the
standards on the compatibility of the amnesty laws covering gross human
rights violations with the American Convention, giving national courts
a legal framework for the reopening of cases. Another example includes
the friendly settlement agreements on cases in Argentina about the right
to truth, which helped mobilize local courts to implement the appropriate
28. See for example the intervention of the IACHR in conflicts over
the quasi-slave status of Guarani Indian families in the Bolivian Chaco
estates and obstacles to the implementation of legislation on land reform
in Bolivia's eastern departments (IACHR, 2008b).
29. See for example the recent decision by the Criminal Cassation Chamber
of the Colombian Supreme Court to limit the power of the United States
to extradite AUC members who are participating in the Justice and Peace
process in Colombia. The Court believes that the extradition hampers
the investigation of human rights cases and the confession of the accused,
affecting the victims' right to justice and truth. The Supreme Court
invokes international law and gives special consideration to the decision
to implement the Inter-American Court's decision in the case of the
slaughter of Mapiripan. On this topic, the IACHR had previously used
similar arguments. (COLOMBIA, 2009, Inter-American Court, The Massacres
Mapiripan vs. Colombia. 2009b, IACHR, 2008c).
30. The author considers some questions that deal with issues ranging
made from theories of deliberative democracy to the extent of authority
of the decisions of international bodies to protect, many of which we
acknowledge in this article. He discusses a number of problems concerning
national constitutions and deficiencies in the democratic regime that
internationalists usually do not consider. He engages in this discussion
despite presenting a vision that, in my view, is somewhat schematic
of the complex social, political and legal process that led to building
a new consensus between the Argentine Congress and justice system to
invalidate the amnesty laws in Argentina. For a critique involving some
"communitarian" objections to the application of international
human rights law in Argentina, see V. Abramovich, "Editorial",
New Criminal Doctrine, 2007-B. You can also follow the debate between
Charles F. Rosenkrantz and Leonardo Filippini (Rosenkrantz, 2005, 2007,
31. In the case Carpio Nicolle v. Guatemala (Inter-American Court, 2004b),
the Court has considered the concept "cosa juzgada aparente o fradulenta"
("invalid res judicata") based not only on the circumstances
of the judicial process being analyzed, but rather the context and existence
of a "systematic pattern of impunity" for certain state-committed
crimes. Again we see a perspective that aims to examine inequality in
how the law is applied, benefiting privileged groups while harming disadvantaged
social groups. In this case, unequal protection of the law is the basis
for the disqualification of the judicial decision to close the case,
and this allows the relativization of the principles of res judicata
and ne bis in idem (KRSTICEVIC, 2007).
32. Colombia and Peru have sanctioned norms about implementation and
the intergovernmental coordination of activities, which are models to
33. See the case "Lavado, Diego Jorge and others vs. Provincia
de Mendoza about declaratory action," Argentine Supreme Court (2006).
The Court's decision discusses the implementation of provisional measures
ordered by the Inter-American Court regarding the Mendoza Penitentiaries
34. For example, there is a debate about the degree of accuracy required
in identification of the victims in collective cases. It is required
in all cases to name each affected individual. The ISHR, which has begun
to address structural problems and recognizes "group rights,"
should adapt its procedures to this new agenda, and to accept the identification
of groups or "classes" of victims, especially in the context
of reparations and cautionary protective measures. There is a risk of
schizophrenia, or development in opposite directions, in equality jurisprudence
and procedural decisions.