Thematic Issues

Anaya, J. and Grossman, C. (2002) ‘The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples’, Arizona Journal of International and Comparative Law vol.19 no. 1, pp. 1-15.

This articles examines the case of Nicaragua’s Awas Tingi who brought a case before the IACtHR in an effort to secure peaceful possession of traditional lands. In its ruling the Court held that the international human right to enjoy the benefits of property, particularly as affirmed in the American Convention on Human Rights, includes the right of indigenous peoples to the protection of their customary land and resource tenure. The Court held that the State of Nicaragua violated the property rights of the Awas Tingni Community by granting to a foreign company a concession to log within the Community’s traditional lands and by failing to otherwise provide adequate recognition and protection of the Community’s customary tenure. This was the first legally binding decision by an international tribunal to uphold the collective land and resource rights of indigenous peoples in the face of a state’s failure to do so.

Brunner, L. (2008), ‘The Rise of Peoples’ Rights in the Americas: The Saramaka People Decision of the Inter-American Court of Human Rights’, Chinese Journal of International Law vol. 7, no. 3, pp. 699-711.

This article examines the Saramaka People v. Suriname decision of the Inter-American Court of Human Rights, which recognized the right of a non-indigenous minority group to the natural resources within its lands. The author highlights three factors which make the decision significant: First, it affirms that certain tribal groups are more akin to indigenous communities than they are to other ethnic, linguistic or religious minorities in terms of the rights they possess. Second, the holding adopts an evolving principle of international law and makes it a binding norm in the Americas, enunciating a test to guide future interpretations of Article 21 of the American Convention. Finally, the Court’s incorporation of peoples’ rights into its analysis renders the decision a topical contribution to current debates on the meaning and scope of these rights.

Canton, S. (2001), ‘The Role of the OAS Special Rapporteur for Freedom of Expression in Promoting Democracy in the Americas’, University of Miami Law Review vol. 56, pp. 307-328.

This article examines freedom of expression in the Americas through the work of the Office of the Special Rapporteur for Freedom of Expression. The Office is part of the Inter-American Commission on Human Rights of the Organisation of American States. Part I explains the mandate and activities of the Office of the Special Rapporteur. Part II examines several significant principles of freedom of expression and advocates legal and other reforms to strengthen freedom of expression in the Americas.

Cassel, D. (2005) ‘The Expanding Scope and Impact of Reparations Awarded by the Inter-American Court of Human Rights’, in De Feyter, K., Parmentier, S., Bossuyt, M. and Lemmens, P. (eds.) Out of the Ashes. Reparation for Victims of Gross and Systematic Human Rights Violations, Belgium: Intersentia,pp. 191-223.

This chapter examines the reasons for and the implications of the trend towards increased use of reparation payments by the Inter-American Court. The author highlights that the court awarded reparations in 47 cases between 1989 and 2004 and that the pace of its jurisprudential development had accelerated towards the latter part of this period. The paper argues that through the escalating awards of compensatory damage, and broader and deeper measures of restitution, rehabilitation, satisfaction and guarantees of non-repetition, the Court has endeavoured to approach the elusive ideal of justice for victims of violations of fundamental rights.

Dulitzky, A. E. (2010) ‘When Afro-Descendants Became “Tribal Peoples”: The Inter-American Human Rights System and Rural Black Communities’, UCLA Journal of International Law and Foreign Affairs vol. 15, pp. 29-79.

The inter-American jurisprudence, in order to recognise collective rights to property, assumes and requires that indigenous and certain Afro-descendant peoples have a unique cultural relationship with their lands and qualify as tribal peoples. While there are benefits and opportunities from the use of an international judicial mechanism to protect these collective rights, there are also limits to employing a litigation strategy based on the cultural approach to territory. In examining these problems and limitations, this article focuses on one particular type of claim that indigenous and Afro-descendant peoples have been bringing before the inter-American human rights system in the last few decades: claims for the protection of lands and territories they have traditionally owned and the natural resources within them.

González-Salzberg, D. (2011) ‘Economic and social rights within the Inter-American Human Rights System: thinking new strategies for obtaining judicial protection’, International Law: Revista Colombiana de Derecho Internacional vol. 18, pp. 117-154.

After more than half a century of existence of international Human Rights regimes, a differential degree of protection is still received by the so-called economic and social rights, when compared to the ones named civil and political. However, this article aims to show that certain strategies used within the IAHRS have proved to be relatively successful for granting judiciable character to economic and social rights. Moreover, the paper discusses alternative paths that could be tried in order to obtain an improved judicial protection for these rights within The Americas.

Keener, S. R. and Vasquez, J. (2008) ‘A Life Worth Living: Enforcement of the Right to Health through the Right to Life in the Inter-American Court of Human Rights’, Columbia Human Rights Law Review, vol. 40, pp. 595-599.

The right to life and the right to health are converging in the Inter-American Court’s protection of a “dignified life”. This article begins with a brief description of the struggle to obtain recognition and adequate enforcement of the right to health, and with a definition of essential elements of the right to health. The body of the article examines three recent court decisions showing how the “right to a dignified life” closely resembles the right to health and how this development creates a new enforcement mechanism for the right to health in the Inter-American system. The last section proposes a working standard for identifying violations of the right to a dignified life based on the court’s jurisprudence and policy considerations. In the end, this right has become a vehicle to protect the right to health or at least many elements of the right to health and at the same time strengthens the notion of access to healthcare as a human right.

MacKay, F. (2002) A Guide to Indigenous Peoples’ Rights in the Inter-American Human Rights System, Forest Peoples Programme and IWGIA.

This guide includes summaries of relevant cases and judgments on the rights of indigenous people that have already passed through the system or ones that are in progress are also included. These cases and judgments provide show how the system deals with Indigenous rights and provide concrete examples of how a case can be moved through the system as a way of illustrating some of the points made in the section on how to submit a petition. The guide also sets out in detail how the Inter-American human rights system works, summarising what rights are protected, with a focus on those of particular importance to Indigenous peoples. It also provides detailed guidance on how to submit petitions to the Commission.

Mendez, J. E and Vivanco, J. M. (1990), ‘Disappearances and the Inter-American Court: reflections on a litigation experience’, Hamline Law Review vol. 13, pp. 507-578.

This article, written shortly after the Court reached its first verdicts on cases of forced disappearances in Latin America, provides one of the earliest detailed examinations of such violations in the region. It aimed to move forward the critical debate on this phenomenon by examining not only what had already been accomplished, but also on the future steps necessary to completely abolish the practice of forced disappearance in the Americas.

Meyer, M. K. (1999), ‘Negotiating international norms: The inter-American commission of women and the convention on violence against women’, in Meyer, M.K. and Elisabeth Prügl, E. (eds.), Gender Politics in Global Governance, Oxford: Rowman & Littlefield Publishers, pp. 58-71.

This article traces the historical and contemporary role of the Inter-American Commission of Women in negotiating international norms aimed at defining and securing women’s rights in the Americas. It outlines the specific work the commission carried out in negotiating the Convention on Violence against Women, which has been in force since 1995, and it examines the innovative international norms found in the convention. It shows that, despite problems of public obscurity and state resistances to change, the commission has pressed governments from the international level to address and improve women’s rights. Combined with a growing women’s movement at the grass roots level in the Americas, the governments of the region are now having to take real steps to combat violence against women.

Mooney, M. (2007) ‘How the Organization of American States Took the Lead: The Development of Indigenous Peoples’ Rights in the Americas’, American Indian Law Review vol. 31, pp. 553-571.

This essay argues that the OAS has made a progressive shift to a new conception of human rights, which acknowledges that indigenous people have third generation collective rights and that these rights do no inherently conflict with first and second generation rights of individuals. In order to fully explain this conclusion, the essay begins by addressing the adoption of the individual rights based system, the progression from first to third generation human rights and the beginning of the OAS’ transition to recognising the collective rights of indigenous peoples. Finally, case examples are used to examine how the unique political and cultural situation in Latin America, as well as the changing international system and the personalities of decision makers in the Commission and the Court, have fostered this transition.

O’Connell, C. (2014), ‘Litigating Reproductive Health Rights In The Inter- American System: What Does A Winning Case Look Like?’, Health and Human Rights: An International Journal vol. 16, no. 2, pp. 116-128.

Remedies and reparation measures emerging from the Inter-American System of Human Rights in reproductive health cases have consistently highlighted the need to develop, and subsequently implement, non-repetition remedies that protect, promote, and fulfill women’s reproductive health rights. Litigation outcomes that determine there have been violations of reproductive rights are regarded as a “win” for health rights litigation, but when implementation fails, is a “win” still a win? There has been considerable success in litigating reproductive health rights cases, yet the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights are not adequately equipped to follow up on cases after they have been won. Successful and sustainable implementation of reproductive health rights law requires incorporation of non-repetition remedies in the form of legislation, education, and training that seeks to remodel existing social and cultural practices that hinder women’s enjoyment of their reproductive rights. In order for a reproductive health rights case to ultimately be a “winner,” case recommendations and decisions emerging from the Commission and Court must incorporate perspectives from members of civil society, with the ultimate goal being to develop measurable remedies that address underlying obstacles to domestic implementation.

O’Connell, C. (2015), ‘What a “Private Life” Means for Women’ pp. 629-643 in 35 Years of the Inter-American Court of Human Rights, Intersentia.

The Inter-American Court of Human Rights has emphasised the right to privacy as it includes an obligation not to interfere in private life. As the Court has expanded upon the definition of the right to privacy, it has determined that as much as there is an inherent negative obligation for the state to respect the right to privacy, there is equally a positive duty for the state to protect and promote the right to private life. In the context of women’s rights, where a considerable number of rights violations occur in the private sphere, regulation of private life in the form of protection from discrimination and violence is fundamental to the promotion of women’s human rights. However, as it stands, regulation in the private sphere is most often concerned with interference in women’s decision-making and autonomy. While the court has included in the definition of the right to privacy provisions for women such as reproductive health services, it has failed to apply this definition to subsequent women’s rights violations. Despite developments in rhetoric, the Inter-American Court has been reluctant to traverse the divide that exists between the public and private spheres, which can ultimately prove detrimental to the advancement of women’s enjoyment of their rights in the region.

Page, A. (2004) ‘Indigenous peoples’ free prior and informed consent in the inter-American human rights system’, Sustainable Development Law & Policy vol. 4, pp. 16-20.

This short article examines the role of the IAHRS in upholding the rights of indigenous groups to free, prior, and informed consent (FPIC) on all development decisions which may affect them. The author focuses on the rulings and lessons learnt on the application of FPIC in the Americas by looking at three landmark cases regarding indigenous rights: Awas Tingi v. Nicaragua, Mary and Carrie Dann v. United States, and Maya Communities of Southern Belize v. Belize. The article argues that the dual concepts of collective rights and self-determination for indigenous peoples are essential in understanding how FPIC may be properly implemented.

Pasqualucci, J. M. (2009) ‘International indigenous land rights: a critique of the jurisprudence of the Inter-American Court of Human Rights in light of the United Nations declaration on the rights of indigenous peoples’, Wisconsin International Law Journal, vol. 27, pp. 51-98.

This article analyses the jurisprudence on indigenous land rights of the IACtHR in light of the UN Declaration on the Rights of Indigenous Peoples, statements of the United Nations Rapporteur on Indigenous Peoples, International Labour Organisation Convention 169 and World Bank Policies. The article illustrates when the IACtHR has given judicial voice to principles set forth in the UN declaration, and when it arguably fails to conform to the lofty principles of this same instrument. It concludes that the Court’s decisions generally conform to the principles of the UN Declaration, except in the area of state expropriation of natural resources on indigenous ancestral lands. Here, the article argues, the Court has chartered a middle ground, allowing the State some residual rights to develop resources, to the detriment of indigenous peoples.

Pasqualucci, J. M. (2008) ‘The Right to a Dignified Life (Vida Digna): The Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System’, Hastings International and Comparative Law Review, vol. 31, no. 1. pp. 1-32.

This article argues that the Inter-American Court’s jurisprudence on the right to life has, in general, been influential in the developing democracies of the Americas as well as in other human rights systems. Its rulings on disappearances – a violation of the right to life – have been the basis of subsequent international declarations, treaties and juridical opinions. However, the author states that despite its promising inception the Court has not yet refined this jurisprudence to the extent necessary for petitioners or States to identify the parameters of the right to a “dignified life”. This article proposes an analysis which the Court can apply to distinct classes of applicants who attempt to establish a prima facie case for the violation of this right. It also proposes potential defences for the State, and the allocation of the burden of proof between applicant and State.

Quintana Osuna, K. (2008), ‘Recognition of Women’s Rights Before the Inter-American Court of Human Rights’, Harvard Human Rights Journal vol. 21, pp. 301-312.

This article begins by briefly describing two cases on sexual violence perpetrated by State agents against women that were brought before the Inter-American Court of Human Rights (IACHR). The author then provides an in- depth analysis of the 2006 IACHR decision of the Castro-Castro Prison case, where there were allegations of sexual violence and abuse of female inmates by State authorities. The IACHR’s found the violence perpetrated against the female inmates had violated various articles of the American Convention of Human Rights, the Inter-American Convention to Prevent and Punish Torture, and the Inter-American Convention of the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará). Finally, the author explores the IACHR’s use of the Convention of Belém do Pará in the Castro-Castro Prison case and discusses future implications it may have on addressing women’s rights abuses.

Sandoval, C. and Rubio, R. (2011) ‘Engendering the Reparations Jurisprudence of the Inter-American Court of Human Rights: The Promise of the Cotton Field Judgment’, Human Rights Quarterly, pp. 1062-1091.

This article puts forward the elements of a holistic gender approach to reparations to be followed by international tribunals in cases of violence and discrimination against women. It uses these to test the reparations jurisprudence of the Inter-American Court of Human Rights, giving particular attention to the Castro Castro Prison and the Cotton Field decisions. The article considers the significant progress made by the Court so far, as well as the major challenge that still lies ahead in making reparations gender-sensitive and delivering, albeit in a modest way, transformative remedies able to subvert sexual hierarchies.

Schonsteiner, J. (2011) ‘Dissuasive Measures and the Society as a Whole: A Working Theory of Reparations in the Inter-American Court of Human Rights’, American University International Law Review vol. 23, no. 1, pp. 127-164.

The article discusses the reparation jurisprudence of the Inter-American Court of Human Rights and the beneficiaries of measures. It elaborates the contexts in which the expression, next of kin, were employed by the Inter-American Court. It details the types of measures that are implicitly directed to the society as a whole provided by the court. It states that the court’s reparation jurisprudence acknowledges both the individual and the society as a whole as beneficiaries of the measures it orders.

Shelton, D. (2008) ‘Environmental Rights and Brazil’s Obligations in the Inter-American Human Rights System’, George Washington International Law Review vol. 40, pp. 733-777.

This article examines the norms and jurisprudence on environmental rights and state obligations as they emerged in the IAHRS. It finds that, despite a lack of references to the environment in nearly all inter-American normative instruments, the Commission and Court have both articulated a broad range of state obligations to maintain the environment at a quality that permits the enjoyment of other guaranteed rights. While many inter-American cases have arisen in the context of disputes over land and natural resources, other cases have made clear some of the broader contours of a rights-based approach to environmental protection in the inter-American system. It seems evident, the article argues, that OAS member states cannot ignore deteriorating environmental conditions and still fulfil their regional human rights obligations.

Simmons, W. (2005) ‘Remedies for the Women of Cuidad Juarez through the Inter-American Court of Human Rights’, Northwestern Journal of International Human Rights, vol. 4, pp. 493-517.

The Inter-American Commission on Human Rights (the Commission) has also increasingly given attention to the murder of women in Mexico’s Ciudad Juarez. The Commission’s Special Rapporteur for the Rights of Women visited the city in 2002 and subsequently produced a report making dozens of recommendations on how to improve the situation there. This article argues however, that the effectiveness of these must be questioned as they have rarely led to substantial human rights improvements. The author explores the range of remedies that can be sought in the Inter-American Court to improve the situation on the ground in Juarez, examining whether the Mexican state can be held accountable for what are generally seen as crimes by private individuals.