Impact and Effectiveness

Basch, F. et al. (2010), ‘La Efectividad del Sistema Interamericano de Protección de Derechos Humanos: Un Enfoque Cuantitativo sobre su Funcionamiento y sobre el Cumplimento de sus Decisiones’, Sur: Revista Internacional de Derechos Humanos, vol. 7, no. 12, pp. 9-36.

This article addresses one of the central concerns in current discussions surrounding the functioning of the IAHRS: its effectiveness. To illuminate some points of the problems involved, the present article details the results of a quantitative research project focused on the degree of compliance with decisions adopted within the framework of the system of petitions of the American Convention on Human Rights (ACHR). The information presented is a survey of all measures adopted in the final decisions of the IACHR and the Inter-American Court during a five year period. It observes, among other aspects, the degree of compliance that said remedies have attained to date.

Camilleri, M. and Krsticevic, V. (2009) ‘Making International Law stick: Reflections on compliance with judgments in the Inter-American Human Rights System’, Derecho Internacional y Relaciones Internacionales, pp. 235-247.

The article begins with some general considerations regarding the Inter-American System, including the relationship between the Commission and the Court, before describing the System’s mechanisms for supervising compliance with judgments. It then considers the specific issue of compliance with rulings of the Inter-American Court, examining general trends in compliance and non-compliance, specific emblematic cases, and mechanisms that contribute to compliance. Finally, the article formulates some broad conclusions and proposals regarding compliance with judgments of the Commission and Court.

Carneiro, C. L. (2014), ‘Economic sanctions and human rights: an analysis of competing enforcement strategies in Latin America’, Revista Brasileira de Política Internacional, vol. 57, no. 1, pp. 197-215.

This article addresses the consequences of economic sanctions for the protection of human rights in Latin America. The literature on sanctions and compliance informs three hypotheses, which investigate the relationship between sanctions and the level of rights protection in two groups of countries: those that were targeted by sanctions and those that were not. Using data from the Political Terror Scale (PTS) and from Freedom House, the author finds empirical evidence that sanctions do improve the level of protection in countries that were not targeted. This finding can be explained by the deterrent effect attributed to sanctions by the compliance literature, broadly interpreted. The presence of economic sanctions in a given year increases the probability of observing better human rights practices by almost 50%. These results hold for the 12 Latin American countries that were not subject to economic sanctions for the period 1976-2004.

Carneiro, C. L. (2013), ‘Human Rights and Development: An International Political Economy Perspective’, Brazilian Political Science Review vol. 7, no. 3, pp. 145-161.

This research note provides a critical review of the recent literature on the consequences of development and democratization for the protection of human rights. It identifies common lessons and grounds for further research in the field. This literature takes a series of paradoxes that challenge conventional wisdom regarding the relationship between development and democratization as its starting point, on one hand, and the protection of human rights, on the other. To that effect, several unintended adverse consequences of economic development and movements toward democracy for the protection of civil and political rights are identified. The literature focuses on rights to physical integrity, leaving important questions unanswered when it comes to civil liberties and second-generation rights. The article systematizes new knowledge produced by this literature, translates it into recommendations for research and identifies opportunities for new investigations.

Cavallaro, J. and Brewer, S. (2008) ‘The Virtue of Following: The Role of Inter-American Litigation in Campaigns for Social Justice’, SUR International Journal on Human Rights vol. 8, no. 85, pp. 9 -30.

This article contends that efforts to expand the justiciability of economic, social, and cultural (ESC) rights before supranational tribunals may not always be the best way to increase respect for these rights on the ground. In the Inter-American System, the authors maintain that human rights lawyers will best advance social justice and ESC rights when they use supranational litigation as a subsidiary tool to support advocacy efforts led by domestic social movements, a role that may often entail litigating ESC claims strategically within the framework of civil and political violations.

Cooper, A. and Thérien, J. P. (2004) ‘The Inter-American regime of citizenship: bridging the institutional gap between democracy and human rights’, Third World Quarterly vol. 25, no. 4, pp. 731-746.

Recent years have brought a strengthening of inter-American cooperation in the areas of human rights and democracy. However, little attention has been devoted to the manner by which these two components of the inter-American system are connected. The central argument of this article is that the concept of a citizenship regime provides an essential vehicle for bridging this gap. This notion makes it possible to recognise hemispheric changes regarding human rights and democracy as two sides of the same dynamic: the building of a more integrated inter-American community.

Dulitzky, A. (2011) ‘The Inter-American Human Rights System Fifty Years Later’, Quebec Journal of International Law, Special Edition, pp. 127-164.

This paper identifies the measures necessary to allow the Inter-American system to play a more prominent role in the promotion and protection of human rights. Specific measures include mainstreaming the work of the OAS around human rights issues, including in the Inter-American Democratic Charter a stronger link between democracy and the protection of human rights, and balancing the work on individual complaints with other tools available to the IACHR. It proposes a fundamental change in the IACHR’s profile through the modification of its participation in the individual petition system. The Commission should only act as an organ of admissibility and facilitator of friendly solutions, and the Court as a tribunal that carries out findings of fact and makes legal determinations on the merits of complaints. The IACHR needs to concentrate more heavily on political and promotional activities that complement its limited participation in the processing of individual cases.

Engstrom, P. and Hurrell, A. (2010) ‘Why the Human Rights Regime in the Americas Matters’, in Serrano, M. and Popovski, V. (eds.), Human Rights Regimes in the Americas, Tokyo: United Nations University Press.

This chapter uses the Americas as a case study to analyse the relationship between human rights and democracy, and the increased normative ambitions of international society which these reflect. It is divided into three parts. The first considers some of the ways in which the legal and institutional landscape of the Americas has changed, highlighting three developments: the expansion and increased intrusiveness of regional norms concerned with human rights and political democracy; the increased pluralism of norm creation referring to the plurality of actors participating in regional fora; and the hardening of enforcement as regional structures are gradually strengthened and increasingly used for the implementation of regional norms. The second considers the ways in which the regional human rights regime may affect political actors, with a particular emphasis on the emergence of a transnational legal and political space. The final part highlights four of many challenges faced by the regional regime: the changing character of human rights violations in the context of weak states and fragile social order; the character of democratization and the changing nature of challenges to democratic order; the problematic interface between continuing human rights violations and problematic democratization; and the changing context of US-Latin American relations and the impact of the broader security context.

Feria Tinta, M. (2007) ‘Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions’, Human Rights Quarterly vol. 29 no. 2, pp. 431-459.

The separation of human rights into two distinct sets remains the underlying paradigm of most legal thinking produced on the subject of economic, social, and cultural rights. This article argues against this view, deeming artificial separations to be just that: artificial. Rights in real life are interwoven and each, in its own right, pose challenges to the legal mind, to provide a remedy. By looking into the practice of the Inter-American Court of Human Rights through the analysis of its case law, this article first provides a theoretical point of departure under general international law for understanding economic, social, and cultural rights as primary rules. It then analyses the current jurisprudence of the Court in its integrated approach to rights. It finally goes on to analyse the different manners in which this organ has been providing remedies for violations of these primary rules. The article argues that the jurisprudence of the Inter-American Court of Human Rights is contributing to a new era of effectively dealing with violations of economic, social, and cultural rights.

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.

The paper undertakes a comprehensive quantitative research on the subject of American States’ compliance with international judgments on human rights’ issues. The research analyses the level of effectiveness of the Inter-American Human Rights System, showing that the data annually published by the Inter-American Court in its Reports might not be the only way of understanding the actual degree of effectiveness of the system. Furthermore, some ideas are evaluated regarding possible paths in order to improve the current situation.

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.

In their rulings, international human rights tribunals frequently ask states to engage in costly compliance measures ranging from paying reparations to victims, to changing domestic human rights laws and practices. The tribunals, however, have little enforcement or oversight capacity and the responsibility for compliance falls to domestic actors. Through an examination of the compliance process in Argentina, Brazil and Colombia this article suggests that compliance with the Inter-American human rights tribunals’ rulings depends on executives’ political will for compliance, and their ability to build pro-compliance coalitions with judges and legislators.  

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.

Courts Resisting Courts explores a critical tension in international law: the relationship between international and national courts. Leading theorists assume that autonomous national courts heighten compliance with international human rights regimes. This article challenges this orthodoxy. It focuses on the Inter-American Court of Human Rights, an international court unique in that it orders far-reaching, innovative remedies that invoke action not only by the State’s executive, but also the legislature and local courts. Original data reveals that national courts, more than any other branch of government, shirk the Court’s rulings. This article turns this insight into a prescription for gaining greater compliance: international human rights courts need to directly engage national justice systems, cultivating them into compliant partners. This argument is relevant not only to the Inter-American Court, but to courts with jurisdiction over human rights across the globe.

Huneeus, A. (2010) ‘Rejecting the Inter-American Court: Judicialization, National Courts, and Regional Human Rights’, in Couso, J., Huneeus, A. and Sieder, R. (eds.) Cultures Of Legality: Judicialization And Political Activism In Latin American, Cambridge University Press; Univ. of Wisconsin Legal Studies Research Paper No. 1167,  pp. 112 – 138

This book chapter generates theories about when high courts comply with Inter-American Court rulings. In over one-half of the rulings issued since it began its work in 1979, the IACtHR has issued orders that require action by national courts. Further, it has increasingly taken on a role of reviewing whether national practices of judicial independence and due process comply with the American Convention on Human Rights. The chapter seeks to discern the factors that influence how national high courts respond to this incursion into their turf, and whether they act as a partner in regional legal integration by complying with the IACtHR’s decisions. It examines recent instances in which the high courts of Argentina, Chile, and Venezuela have rejected rulings of the Inter-American Court.

Krsticevic, V. (1997) ‘How the Inter-American Human Rights Litigation Brings Free Speech to the Americas’ Southwest Journal of Law and Trade in the Americas, vol. 4, pp. 209-226.

This article discusses the Commission’s efforts to promote and preserve freedom of expression in the Americas. It begins by outlining the structures and functions of the Inter-American system of human rights promotion and protection, before setting forth the specific standards for the protection of freedom of expression. Finally, the article focuses on the impact of litigation within the Inter-American system on the protection of freedom of expression in the Americas. Overall, the author argues that the Commission and Court provide an important mechanism to protect this right when local laws fail to address threats to liberty.

Lutz, E. and Sikkink, K. (2001), ‘The Justice Cascade: The Evolution and Impact of Human Rights Trials in Latin America’, Chicago Journal of International Law vol. 2, no. 1, pp. 1-34.

Some international relations experts have recently echoed the pessimistic claims of the early human rights `trial sceptics’, adding new concerns about the impact of trials. Yet, relatively little multi-country empirical work has been done to test such claims, in part because no database on trials was available. The authors have created a new dataset of two main transitional justice mechanisms: truth commissions and trials for past human rights violations. With the new data, they document the emergence and dramatic growth of the use of truth commissions and domestic, foreign, and international human rights trials in the world. The authors then explore the impact that human rights trials have on human rights, conflict, democracy, and rule of law in Latin America. Their analysis suggests that the pessimistic claims of sceptics that human rights trials threaten democracy, increase human rights violations, and exacerbate conflict are not supported by empirical evidence from Latin America.

Lutz, E. and Sikkink, K. (2000) ‘International Human Rights Law and Practice in Latin America’, International Organization vol. 54, no. 3, pp. 633-659.

This article examines the extent to which the proliferation of human rights norms in the Americas, and the emergence of an advocacy network of those documenting and highlighting abuses, was linked to the rise in the region of governments which increasingly respect and comply with fundamental international human rights norms. The article focuses on compliance with three specific norms: the prohibition of torture, the prohibition of disappearances and right to democratic governance. It argues that torture prohibition is the most legalised, against disappearance has mid-level legalisation, and the right to democratic governance is least legalised.

Medina, C. (2003) Convención Americana: Teoría y Jurisprudencia, Santiago de Chile: University of Chile.

This book examines the scope and content of certain civil and political rights enshrined in the American Convention. It focuses particularly on the jurisprudence of the Inter-American Court of Human Rights, which, with over twenty years of activity, has made ​​substantial contributions in this field. The author argues that the activity of the Court, as a result of its dual advisory and contentious jurisdictions, has played a significant role in internal efforts to encourage compliance with states’ obligations to respect and protect human rights.

Méndez, J. and Mariezcurrena, J. (1999) ‘Accountability for Past Human Rights Violations: Contributions of the Inter-American Organs of Protection’, Social Justice Vol. 26, No. 4, pp. 84-106.

This essay focuses on efforts at accountability in Latin America, and specifically on the contributions of the Inter-American Commission and the Inter-American Court of Human Rights — the bodies that implement international human rights law in the region – in overcoming immunity for human rights violations. The picture is complex. Undoubtedly, the most ingenious and promising initiatives to restore truth and justice and to overcome impunity are grounded on national realities and emanate from domestic organizations of civil society or from the will of national democratic leaders. Yet pioneering decisions by inter-American bodies have also inspired and given a solid legal footing to some of those enterprises. The authors argue that the presence of inter-American bodies is at times clearly discernible and even precedent setting, whereas in other areas they have been silent or clearly lag behind national institutions in the development of progressive legal principles.

Parra Vera, O. (2011). ‘Lucha contra la impunidad, independencia judicial y derechos de los pueblos indígenas. Algunos avances y debates en torno a la jurisprudencia de la Corte Interamericana de Derechos Humanos (2004-2009)’. En F. Rey Martínez (dir.). Los derechos en Latinoamérica: tendencias judiciales recientes. Madrid: Editorial Complutense, FIIAPP, pp. 363-416.

This study looks at the achievements of and future challenges for the IAHRS through an examination of its jurisprudence in the years 2004-2009. It argues that the Court exists in a paradox; the cases it views are the result of the failure of national level institutions to effectively establish the rule of law, but that the very effectiveness of the Court depends, to a large degree, in the ability of these same institutions to implement its rulings. The article argues that judicial authorities have made enthusiastic efforts to comply with the rulings of the court, despite the occasional public declarations rejecting court verdicts by state actors in the international arena. It concludes that, overall, the system is fulfilling its promises to victims in that it has fostered advances towards the reestablishment of the rule of law and to the recognition of vulnerable groups.

Schonsteiner, J., Beltran, A., and Lovera, D. (2011) ‘Reflections on the Human Rights Challenges of Consolidating Democracies: Recent Developments in the Inter-American System of Human Rights’, Human Rights Law Review vol. 11, no.2, pp. 362-389.

The article discusses developments in the IAHRS in addressing systemic and structural violations in the consolidated democracies in the continent. Several developments in the Commission, the Court and procedural and institutional reforms are highlighted as reflecting major institutional changes. The authors also detail a number of key challenges including equality of access to the information, clarity of standards on reproductive rights and effective functioning of the legal assistance mechanisms.

Tan, M. (2007), ‘Upholding Human Rights in the Hemisphere: Casting Down Impunity Through the Inter-American Court of Human Rights’, Texas International Law Journal vol. 43, pp. 243-283.

This article uses the case of the Court as the basis for a new ‘hybrid’ model of compliance theory. The body of the work comprises and evaluation of a number of landmark cases of the court, documenting in each instance, the background and narrative of the abuses, the judgement reached, and the level of compliance with the ruling reached by the subject government. In the latter part, it examines compliance theories in general and discusses how these may be applied to the specific case of the IAHRS.