The Impact of Friendly Settlements
The Commission’s friendly settlement mechanism exists to guide States and victims of human rights violations (or third party petitioners) towards a mutually acceptable resolution of their case at a comparatively early stage of IAHRS proceedings.
Advocates of friendly settlements argue that they represent the most rapid means of securing remedial measures for victims, as they avoid the lengthy court proceedings which may otherwise result. Proponents also claim that States tend to pay compensation and implement reforms included in settlements far more readily than they do for Court verdicts. Victims’ interests are also believed to be better represented in settlement negotiations, as they allow the wronged party to pursue those specific remedial measures which are of most importance to them personally.
The Commission’s View
A recently launched report by the Commission looks further at the impact of the friendly settlement procedure and deems them to have been largely positive overall. The Commission states that through such procedures “many victims of human rights violations have obtained adequate reparations, and many more have benefited from the essential measures taken to prevent their repetition”. In addition, they “have provided opportunities to amend domestic laws to ensure their conformity with the standards of the Inter-American human rights system”.
The Commission highlights two aspects which it feels are essential pre-conditions for the effective negotiation and implementation of a friendly settlement. Firstly, both parties must be genuinely committed to reaching an agreement regarding the violation under examination. Secondly, States must be willing to fully implement and comply with the remedial measure to which it agrees.
Crucially important in this endeavour is the process of engendering trust between the two sides, at both the negotiation and fulfilment stages. To help this, the Commission recommends that petitioners “convey in clear and precise terms their expectations with respect to the outcome of the process and the measures they believe necessary to obtain full reparations for the violated rights”. States, on the other hand, should listen “with an open mind to the petitioners and alleged victims of human rights violations…[be] frank and realistic about the measures that [it] is able to fulfil…[and] comply fully and in good faith with the commitments undertaken” within any settlement.
Preliminary IAHRN Findings
Part of the IAHRN workshop in Mexico in October 2014 also focused on evaluating the impact of settlements brokered under this mechanism. Conclusions of the discussion were slightly more mixed with regards to the effects friendly settlements may have on human rights outcomes, than those contained in the Commission’s recently published report.
Prior to the workshop, a research team led by IAHRN scholar Natalia Saltalamacchia (Instituto Tecnológico Autónomo de México) conducted a preliminary analysis of the available friendly settlement data between 2001 and 2011, and found that compliance with provisions of these agreements was indeed higher than those for court rulings. Dr. Saltalamacchia also concluded that friendly settlements had other positive aspects, most notably their ability, in some cases, to bring about important legislative and policy reforms in a given country context.
However, the research also indicates that claims regarding the comparative expediency of settlements (as opposed to fuller IAHRS proceedings) are somewhat overblown. In many cases, it took as long to negotiate such agreements as it took the Commission, on average, to reach a unilateral verdict (7.3 years). Moreover, discussion of recent case studies also revealed a potentially problematic outcome of friendly settlements: that their indirect impact tended to be more limited than those of Court proceedings. This is likely a result of the fact that negotiated agreements receive significantly less political and media attention than do Court rulings. This serves to limit public awareness not only of the case and the remedial measures pledged, but also of the type of human rights violation identified, and the role played by the IAHRS in resolving them.
One important implication of all this is that there may be a degree of conflict between the course of action deemed to be in the interest of individual victims, as opposed to what may be beneficial society more generally. Victims often – but far from always – prioritise gaining immediate redress for their own suffering, over the less tangible and more long-term benefits which may arise from improvements to the human rights environment overall. In this context, friendly settlements will often seem like a preferable option to the more uncertain route of Court action. While largely positive for the victims themselves, the decision to reach a friendly settlement will likely have only a comparatively minor effect on human rights protection in the region as a whole.
Fuller analysis and more developed conclusions regarding the impact of friendly settlement mechanisms will be available in the IAHRN scholarly volume, to be published in 2015.