Legal Commentary

Antkowiak, T. M. (2008) ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’, Columbia Journal of Transnational Law vol. 46, no. 2 , pp. 351-419.

This article argues for a remedial model of international human rights law that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition. The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding powers that has consistently ordered equitable remedies in conjunction with compensation. Next, it considers the strengths and limitations of the Inter-American Tribunal’s unique reparative approach, which has been neglected in the literature despite significant evolution in recent years. The following section attempts to refine the Court’s normative model by proposing a “participative” methodology, consisting in procedural reforms, to calibrate remedies more precisely to a victim’s situation and necessities. Finally, the work discusses how the Court’s victim-conscious balance of non-monetary orders and economic compensation, which has revamped standards for redress in international law, should be incorporated to a greater extent into the remedial approaches of other international courts and domestic institutions.

Binder, C. (2011) ‘The prohibition of amnesties by the Inter-American Court of Human Rights’, German Law Journal vol. 12, pp. 1203-1230

This article examines the law-making role of the Inter-American Court and its inherent tension with democratic self-determination. It particularly focuses on the Court’s jurisprudence on national amnesty legislation, which provides for impunity in cases of grave human rights violations. After a brief overview of the Court’s role in the Inter-American system for the protection of human rights, the author scrutinises the Court’s exercise of its judicial functions, with special focus on its amnesty jurisprudence. It is argued that the Inter-American Court considerably expands the competences originally attributed to it in the ACHR.

Brody, R. and González, F. (1997) ‘Nunca Más: An Analysis of International Instruments on Disappearances’, Human Rights Quarterly vol. 19, pp.365-405.

Twenty years after Latin American military dictatorships shocked the conscience of the world by “disappearing” their political opponents, the United Nations and the Organization of American States adopted standards that seek to prevent and punish this grisly practice. This article reviews the process of the development of these standards and examines the extent to which they respond to the concerns raised by human rights groups and families of the disappeared.

Burgorgue-Larsen, L., and Úbeda De Torres, A. (2011) The inter-American court of human rights: case law and commentary, Oxford: Oxford University Press.

The first systematic analysis of the case law of the Inter-American Court of Human Rights to be published in English. The book provides a comprehensive collation and commentary on the jurisprudence of the Court, situating it in the broader context of international human rights law, drawing comparisons in particular with the case law of the European Court of Human Rights. It features coverage of both procedural and substantive human rights law.

Carter, E. (2013), ‘Actual Malice in the Inter-American Court of Human Rights’, Communication Law and Policy vol. 18, no. 4, pp. 395-423.

In 2004 and again in 2008, the Court stopped short of adopting a standard that would require proof of actual malice in criminal defamation cases brought by public officials. In 2009, however, the Court seemed to adopt the actual malice rule without calling it that. The Court’s progress toward actual malice is chronicled in this article. The article concludes that the court’s decision not to explicitly use the phrase “actual malice” may be a positive development for freedom of expression in the Americas.

Cerna, C. (1997), ‘International Law and the Protection of Human Rights in the Inter-American System’, Houston Journal of International Law vol. 9, pp. 731-759.

This legalistic study of the effectiveness of the IAHRS focuses on the laws which have been created by this international human rights mechanism. It discusses the role of the system in generating legal obligations on the part of states, and asks how effective and enforceable this law is at the domestic level. It also examines how these laws fit into the domestic hierarchy of norms. It concludes that, since international human rights law is only enforceable at the national level through the domestic court system, its efficacy depends upon the political willingness of states which are party to these instruments to recognise the obligatory nature of these views.

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.

Tracing the development of the IAHRS, and the Court in particular, this article evaluates the Court’s powers and questions whether contentious jurisdiction should be utilised to protect and promote human rights in the region. Next, it discusses those cases over which the Court has exercised contentious jurisdiction, before concluding with an examination of three specific problems of this: its effect on citizens’ perceptions of the Court; its effect on the Court’s advisory function and its effect on the US’ ratification of the American Convention on Human Rights.

Moir, L. (2003), ‘Law and the Interamerican Rights System’, Human Rights Quarterly vol. 25, no. 1, pp. 182-212.

The relationship between human rights and humanitarian law is a close one, especially in the context of internal armed conflict. Although regulated by humanitarian law, human rights law remains valuable in such conflicts for several reasons. These include the possibility that enforcement mechanisms created by human rights instruments could serve as alternative fora for the enforcement of humanitarian standards. The Inter-American machinery has been particularly active in this area, and this article examines the relationship between human rights and humanitarian law as it has been reflected and developed in the jurisprudence of the Inter-American Commission and Court of Human Rights.

Modolell González, J. L. (2010) ‘The Crime of Forced Disappearance of Persons According to the Decisions of the Inter-American Court of Human Rights’, International Criminal Law Review vol. 10, no. 4, pp. 475-489.

This article briefly addresses the jurisprudence of the Inter-American Court of Human Rights regarding the crime of forced disappearance of persons and associated issues before analysing the constitutive elements of the crime. Quoting the Rome Statute, the Court qualified the forced disappearance of persons as a crime against humanity, but there are clear and strong differences between both definitions. The first analysis of this article addresses the question of how the elements of the crime of the forced disappearance of persons should be defined in States that have signed and approved the mentioned regional Convention and the Rome Statute of the ICC. The second analysis focuses on the structure or elements that should constitute the definition of this crime. All of these elements will be studied on the basis of the concepts used by the Court and by comparison to the Rome Statute and the Convention on Forced Disappearances of Persons.

Neuman, G. L. (2008), ‘Import, export, and regional consent in the Inter-American Court of Human Rights’, European Journal of International Law, vol. 19, no. 1, pp. 101-123.

The Inter-American Court of Human Rights has elaborated a significant body of human rights jurisprudence through interpretation of regional human rights conventions and the adaptation of European and global precedents and global soft law. The Inter-American Court has also aspired to influence outside its region by offering innovative interpretations of human rights and by identifying norms as jus cogens. The Court’s methodology in recent years has appeared to give insufficient consideration to the consent of the regional community of states as a factor in the evolutive interpretation of a human rights treaty. The article illustrates and criticizes that trend, and contends that greater attention to indicia of regional consent could improve the acceptance and effectiveness of the inter-American human rights system.

Saul, B. (2003), ‘Compensation for Unlawful Death in International Law: A Focus on the Inter-American Court of Human Rights’, American University International Law Review, vol. 19, no. 3,  pp. 523 – 585.

This paper draws out the key principles of reparation for unlawful death established by the case law of the Court, placing these developments in regional Inter-American law, alongside established principles of international law. It first examines state responsibility for unlawful death and the general principles of reparation that apply; the paper then focuses specifically on monetary compensation as the most common form of reparation in unlawful death cases. It then considers compensation types the Court has awarded, including material damages, moral damages, expenses and costs, and the emerging concepts of “nuclear family patrimonial damages” and “damage to a life plan.” Finally, it compares the compensation amounts awarded during the period of analysis, arguing that the Court has become more generous over time when compared both with its own previous awards and those of other international tribunals.

Sandoval, C. (2009) ‘The Concepts of “Injured Party” and “Victim” of Gross Human Rights Violations in the Jurisprudence of the Inter-American Court of Human Rights: A Commentary on their Implications for Reparations’, in Ferstman, C., Goetz, M. and Stephens, A., Reparations for Victims of Genocide, Crimes against Humanity and War Crimes: Systems in Place and Systems in the Making, The Netherlands: Brill, pp. 243-282.

Analysis in this chapter concentrates on critical moments which have determined the transformation of the concepts of ‘victim’ and ‘injured party’ in the IACtHR’s reparations judgements. It begins with a discussion of article 63.1 of the American Convention on Human Rights which established the regulating principles applicable to reparations with the IAHRS. The latter part of the chapter concentrates on the concept of an ‘injured party’ while mapping this notion against the concept of ‘victim’ in four different periods.