Challenges and Criticisms

A key aim of this network, and the research undertaken by its members, is to establish the primary areas of impact, and ‘non-impact’, of the IAHRS. As part of these efforts, the network will critically examine the key challenges facing the Inter-American System, including:

  • Enforceability. For many, an essential component of an effectively functioning judicial system is that its decisions are enforceable. As a supra-national body the Inter-American Court has a less developed enforcement mechanism than do most state-level systems. For example, according to a 2010 study by González-Salzberg (see further reading section), OAS member states had, up to 2008, wholly failed to implement aspects of Court rulings in 30% of cases. Compliance with edicts to modify domestic legislation had the lowest compliance rates, with implementation achieved in only 20% of instances. Moreover, where countries have strongly disputed Court rulings they have often made recourse to punitive action or sought refuge in disengagement. Over the past few decades, Brazil, Ecuador, Nicaragua, Peru, Trinidad and Tobago, and Venezuela have all variously suspended payment of organisational dues, (temporarily) withdrawn their ambassadors, and/or threatened to leave, or actually withdrawn from, the Inter-American System following contested decisions.
  • Financial and Operational Constraints. The Court and, in particular, the Commission receive a comparatively small proportion of the OAS’s total annual budget. Funds provided by this source are insufficient to meet organisational outgoings so the Court and Commission rely on external sources of finance and contributions from member states to make up the shortfall. Operating under financial constraints, the agencies have had to keep personnel numbers limited and heavily restrict the budget for proactive human rights research and investigation. This has produced complaints from within and outside the system over the limited quantity and scope of work these bodies are able to undertake.
  • Non-Universality of Relevant Instruments. Approximately one third of OAS member states have not ratified the American Convention on Human Rights to accept the jurisdiction of the Court. Accordingly, not all citizens of the Americas are able to utilise the full range of IAHRS mechanisms as a way of protecting and promoting their human rights. Though the United States is one of the major financers of the IAHRS, and hosts the Commission in Washington, it has not accepted the jurisdiction of the Court. Venezuela, Ecuador, Bolivia and others have loudly complained that the US position on the Inter-American System is inconsistent, even hypocritical, as a result. Some even cite this fact to support their assertions that the Court’s agenda is, or has been, driven by political considerations. Such claims could potentially serve to undermine perceptions of the legitimacy of this judicial mechanism.
  • Range of Human Rights Issues Covered. In the early period, the Inter-American System principally focused on violations perpetrated by military dictatorships and authoritarian governments in the midst of political repression. As the human rights environment in the Americas has evolved, so have the cases examined and adjudicated by the Court and Commission. Recent recommendations and rulings on other rights’ issues – such as indigenous rights, abortion and gay rights – have brought the Court and Commission into opposition with several states and interest groups. The ire of Brazil and Ecuador was provoked, for example, by verdicts in favour of indigenous groups that argued they had been inadequately consulted over major investment projects developed on (or near) their land. Conservative and religious organisations have also vociferously objected to recent rulings upholding gay rights and abortion. Many such individuals argue the Court should instead focus exclusively on ‘traditional’ human rights issues, such as torture and traditional forms of violence.

Further reading:

  • Abramovich, V. (2009) ‘From massive violations to structural patterns: new approaches and classic tensions in the inter-american human rights system’, Sur. Revista Internacional de Direitos Humanos, vol. 6, no. 11, pp. 6-39.
  • Corbera, Michael Jose (1992) ‘In the Wrong Place, at the Wrong Time: Problems with the Inter-American Court of Human Rights Use of Contentious Jurisdiction’, Vanderbilt Journal of Transnational Law, vol. 25, pp. 919-950.
  • De Vos, C. (2013) From Rights to Remedies: Structures and Strategies for Implementing International Human Rights Decisions, Open Society Justice Initiative.
  • González-Salzberg, D. A. (2010), ‘The Effectiveness of the Inter-American Human Rights System: A Study of the American States’ Compliance with the Judgments of the Inter-American Court of Human Rights’, International Law: Revista Colombiana de Derecho Internacional vol. 16, pp. 115-142.
  • Hillebrecht, C. (2012) ‘The Domestic Mechanisms of Compliance with International Law: Case Studies from the Inter-American Human Rights System’, Human Rights Quarterly, vol. 34, no. 2, pp. 959-985.
  • Huneeus, A. (2011), ‘Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights’, Cornell International Law Journal vol. 44, pp. 493-549.
  • Krsticevic, V. (2013) ‘How Best to Strengthen the Inter-American Commission and Court’, Human Rights Brief vol. 20, no. 2, pp. 7-32.
  • Tan, M. (2005), ‘Member State Compliance with the Judgments of the Inter-American Court of Human Rights’, International Journal of Legal Information, vol. 33, no. 3, pp. 319-344.