Regional Comparative Studies

Bertoni, E. (2009) ‘The Inter-American Court of Human Rights and the European Court of Human Rights: a dialogue on freedom of expression standards’, European Human Rights Law Review vol. 3, pp. 332-352.

It was only in 2001 that the Court began to rule on contentious of freedom of expression cases pertaining to Article 13 of the American Convention on Human Rights. This article examines the 10 freedom of expression decisions rendered in the last decade. It also discuss to what extent the jurisprudence of the European Court of Human Rights has influenced the decisions of its American counterpart, concluding that the impact of the European Court’s jurisprudence has been significant. Finally, the article highlights that some influence of Inter-American decisions can conversely be detected in European case law.

Buergenthal, T. (1980) ‘The American and European Conventions on Human Rights: Similarities and Differences’ American University Law Review vol. 30, pp. 155-166.

A critical examination of the key human rights conventions which respectively form the basis of both the inter-American and European human rights systems. The author highlights a number of areas in which the American Convention departed from the European model, upon which it was based. Understanding the variances between the two documents provides important context to help understand the various ways in which the function and operations of the two human rights systems has today diverged.

Burbano, C. and Viljoen, F. (2014) ‘Interim measures before the inter-American and African Human Rights Commissions: strengths and weaknesses’, Ius Gentium: Comparative Perspectives on Law and Justice vol. 30, pp. 157-177

Interim measures are a tool, the purpose of which is to prevent irreparable harm to persons in a situations of extreme gravity and urgency. Interim measures result in immediate protection by the member state to the beneficiaries, in compliance with an internationally issued order. This article aims to illustrate that although interim measures in the African and the Inter-American system have been a useful legal tool to avoid (further) human rights violations in difficult situations, there are still some factors which have prevented their effective functioning. The article begins by mentioning three aspects of interim measures that lend themselves to a comparison between the two regional systems: the admissibility requirements; the frequency of their use; and the rights and beneficiaries protected through these interim measures. Taking into account the aforementioned comparison, the merits and deficiencies of interim measures in regional human rights systems will be highlighted, and recommendations will be advanced for improving their functioning and impact.

Cavallaro, J. L., and Brewer, S. E. (2008) ‘Reevaluating regional human rights litigation in the twenty-first century: The case of the Inter-American Court’, American Journal of International Law, pp. 768-827.

This article addresses the radical transformation over the past two decades of the political landscapes over which regional human rights courts exercise jurisdiction. Considering briefly the European Court of Human Rights, but focusing primarily on its Inter-American counterpart, the article posits several hypotheses concerning the means of maximising courts’ effectiveness in today’s political context. The article recommends that the Inter-American Court: 1) consider intensifying its use of live fact-finding; 2) ensure that state recognitions of responsibility do not allow governments to manipulate Court proceedings; and 3) issue grounded jurisprudence that is maximally relevant to domestic human rights conditions.

De Vos, C. (2013) From Rights to Remedies: Structures and Strategies for Implementing International Human Rights Decisions, Open Society Justice Initiative.

Too often, the decisions and recommendations of international legal bodies charged with protecting human rights are ignored by states unable or unwilling to implement them. This report explores these challenges by examining how international human rights decisions and recommendations are implemented at the national level. It analyses the strategies and structures — within the executive branch, legislatures, and domestic courts — that can either promote or thwart implementation. It also looks at the special role that national human rights institutions have to play in the execution process. By combining analysis with recommendations, model laws, and case studies that span the European, Inter-American, and African systems, as well as the UN treaty bodies, the report aims to offer a political and legal roadmap to more effective domestic implementation.

Engstrom, P. (2010) ‘The Effectiveness of International and Regional Human Rights Regimes’, in Denemark, R. (ed.), The International Studies Encyclopaedia, London: Blackwell Publishing.

This chapter examines the study of human rights regimes in the field of International Relations (IR). The first section seeks to give a general overview of how the study of human rights regimes has developed at the interface between IR and international law. In particular, the implications of the analytical shift from the inter-state dynamics of international society to its transnational dimensions for the study of human rights regimes are outlined. Building on this last point, the second section explores the ways in which the norms and practices of global human rights institutions have evolved since the Second World War. The focus here is on the institutionalization of human rights globally through the United Nations system and the connections between the development of international human rights institutions on the one hand and their relative effectiveness in shaping human rights behaviour on the other. Against this global background, the third section examines the comparative development of regional human rights regimes. Particular emphasis is put on the role and influence of regionalism in shaping the development and impact of international human rights law and policy.

European Parliament (2010) The Role of Regional Human Rights Mechanisms, Director General for External Policies, available at: http://www.europarl.europa.eu/committees/es/droi/studiesdownload.html?languageDocument=EN&file=33385

This report argues that regional human rights mechanisms constitutes important pillars of the international system for the promotion and protection of human rights. The authors examine, in turn, the dynamics of mechanisms, in varying stages of development, in Europe, Latin America, Africa, Asia-Pacific and the Arab world. It argues that Europe has become a victim of its own success and is now struggling to manage its workload; that the IAHRS is well developed but under threat; that African mechanisms face serious structural challenges to their effectiveness; that Arab systems are largely inconsistent with global human rights norms; and that sub-regional mechanisms (such as ASEAN) appear to be the most effective systems in the Asia Pacific region.

Hawkins, D. and Jacoby, W. (2010) ‘Partial compliance: A comparison of the European and inter-American courts of human rights’, Journal of International Law and International Relations vol. 6, pp. 35-95.

This article aims to break down the dichotomy between compliance and noncompliance by exploring the territory of partial compliance with the rulings of the Inter-American and European human rights courts. The authors catalogue the varieties of partial compliance and explore the reasons why states choose partial compliance. They assess the most common ways through which partial compliance may be achieved, such as ratifying a treaty but then not implementing it; passing legislation that implements part of the treaty but not all of it; or failing to enforce legislation or to educate and train key domestic actors on the nature of the new policy. The authors also posit five more specific mechanisms by which partial compliance may come about. Overall, the paper argues that partial state compliance is far more likely than commonly supposed and often more likely than either systematic compliance or noncompliance with the regional human rights courts.

Heyns, C., Padilla, D. and Zwaak, L. (2005) “A schematic comparison of regional human rights systems: An update.” African Human Rights Law Journal 5 (2005).

This article provides a comparative overview of the African, the Inter-American and the European systems for the protection of human rights. It focuses on their salient features and discusses on key procedural and institutional aspects of these systems. The author gives a charted overview of how some of the most important aspects of these systems may be compared to one another, focusing on the way in which the enforcement mechanisms are constituted and operate, and the procedures followed.

Hillebrecht, C. (2014) Domestic Politics and International Human Rights Tribunals: The Problem of Compliance, Cambridge: Cambridge University Press.

The rise of the international legalisation of human rights has made it possible for individual constituents to take human rights claims against their governments to international courts such as the European and Inter-American Courts of Human Rights. This book brings together theories of compliance from international law, human rights, and international relations to explain the increasingly important phenomenon of states’ compliance with human rights tribunals’ rulings. The central argument of the book is that compliance with international human rights tribunals’ rulings is an inherently domestic affair. It posits three overarching questions: First, why do states comply with human rights tribunals’ rulings? Second, how does the compliance process unfold and what are the domestic political considerations around compliance? Third, what effect does compliance have on the protection of human rights? This book answers these questions through a combination of quantitative analyses and in-depth case studies from Argentina, Brazil, Colombia, Italy, Portugal, Russia, and the United Kingdom.

Hillebrecht, C. (2014) “The Power of Human Rights Tribunals:  Compliance and Domestic Policy Change”, European Journal of International Relations, available at http://ejt.sagepub.com/content/early/2014/03/14/1354066113508591.

This article considers the conditions under which states comply with reparations rulings, especially when the tribunals are unable and often unwilling to provide strict enforcement. This article extends current theories about the domestic politics of compliance with international human rights law to the case of the European Court of Human Rights. This article analyses a new, hand-coded data set on states’ compliance with over 1000 discrete obligations handed down by the European Court of Human Rights that ask states to change their human rights policies. The results of these analyses suggest that robust domestic institutions, particularly executive constraints, are the key to compliance with the European Court of Human Rights. When domestic institutions enforce the Court’s rulings, the results can be significant changes in states’ human rights policies and practices.

Hillebrecht, C. (2009) “Rethinking Compliance: The Challenges and Prospects of Measuring Compliance with International Human Rights,” Journal of Human Rights Practice vol. 3, no. 1, pp. 362-379.

This article examines the challenges and opportunities in measuring compliance with international human rights tribunals. Using the European Court of Human Rights, the Inter-American Commission on Human Rights, and the Inter-American Court of Human Rights as examples, this article highlights the importance of strong measures of compliance, identifies the strengths and weaknesses of the current approaches to measuring compliance, and begins a dialogue about the future of measuring compliance by positing an alternative compliance indicator.

Hillebrecht, C. (2012) “Implementing International Human Rights Law at Home:  Domestic Politics and the European Court of Human Rights”, Human Rights Review vol. 13, no. 3, pp. 279-301.

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR’s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court’s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR’s judgments. Using case studies from the UK and Russia, this article identifies two factors that are critical for the domestic implementation of the Court’s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR’s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR’s rulings.

Huneeus, A. (2013) ‘International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Bodies’, American Journal of International Law vol. 107, no.1, pp. 1-104.

Scholarship on the international prosecution of genocide, war crimes and crimes against humanity has typically focused on criminal tribunals and hybrid tribunals. This article proposes that there is an alternative accountability mechanism which has been overlooked: the ordering and supervising of national prosecutions by international human rights bodies. Empirical research reveals that the regional rights bodies have forged a quasi-criminal practice that strives towards the very same outcomes as the international and hybrid criminal tribunals: punishment and deterrence, restorative justice, processes of societal reconciliation, and justice system reform. Further, this form of jurisdiction has unique attributes: it promotes prosecutions that are local and paid for by the state, even as its process is responsive to victims’ needs. The Inter-American Court in particular has made national prosecution of gross state-sponsored crimes a centre-piece of its regional agenda. Like the international and hybrid tribunals, it has achieved some success. The article concludes that the quasi-criminal jurisdiction of the human rights courts should be considered as a complement and, in certain situations, an alternative to the work of the current international and hybrid criminal tribunals.

Piovesan, F. (2004) ‘Social, Economic and Cultural Rights and Civil and Political Rights’, Sur – International Journal on Human Rights, vol. 1 no. 1, pp. 21-48.

This essay deals with social, economic and cultural rights and political and civil rights within the context of international law on human rights. To this end, it reviews the contemporary conception of this issue in the light of the international system of protection, evaluating its profile, its objectives, its logic and its principles, and questioning the feasibility of an integrated vision of human rights. This is followed by an evaluation of the main challenges and prospects for the implementation of these rights, claiming that facing this challenge is essential to ensure that human rights will take on their central role in the contemporary order.

Popovski, V. and Serrano, M. (2012) After Oppression: Transitional Justice in Latin America and Eastern Europe, Tokyo: United Nations University Press.

The decline of authoritarianism in Latin America and Eastern Europe marked the end of a dark chapter in the history of these societies. In both regions, transition to democracy was accompanied by distinct efforts to come to terms with the traumatic experiences of the past and to demand accountability from the oppressors. This book seeks to enquire into the effectiveness of various accountability mechanisms. Drawing comparisons from cases studies in Latin America and Eastern Europe, the book demonstrates that while there are many different paths to truth and justice, all depend on continued efforts in order to reach them. In many cases these efforts also create favourable conditions for the development of a resilient human rights culture. The experiences across regions show that democratic consolidation and accountability for past human rights violations are closely related, if independent, processes.

Shelton, D. and Carozza, P. (2008) Regional Protection of Human Rights. OUP: New York.

This book examines the development of regional organisations and the role that human rights plays in them. Particularly the authors look at the range of human rights obligations that states assume upon joining regional bodies and how regional concern with human rights intersects with the global system elaborated in the context of the United Nations. The Jurisprudence of the European and Inter-American Courts and decisions of the Inter-American and African Commissions are emphasized, including decisions on the interpretation and application of various human rights, procedural requirements and remedies. The book exposes readers to the basic documents of each system and their inter-relationships, enables the audience to apply those documents to ever-changing fact situations, and to alert them to the dynamic nature of regional human rights law and institutions. It also seeks to relate regional systems to national law and to the global system for the protection of human rights.

Taqi, I. (2001), ‘Adjudicating Disappearance Cases in Turkey: An Argument for Adopting the Inter-American Court of Human Rights’ Approach’, Fordham International Law Journal vol. 24, pp. 940-987.

This article examines the different approaches of the European and Inter-American Courts in assessing state liability for a violation of the right to life in disappearance cases. Part I discusses the phenomenon of disappearances and provides background on the respective regional human rights systems. It also discusses the IACtHR’s approach to assessing state responsibility for disappearances in the Velasquez Rodriguez case. The second part of the essay critically examines the legal framework for such cases within the European context, looking at the specific case of Turkey. The final section of the essay argues that the European approach is problematic and that the European Court should seek to adopt the Inter-American model of adjudication.