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Justice in Context: The Relevance of Inter‐American Human Rights Law and Practice to Repairing the Past

Arturo J. Carrillo

in The Handbook of Reparations

This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The ... More

This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The author surveys the jurisprudence of the Inter-American Court of Human Rights through 2003 to determine how the Court’s practice can be used to guide the formulation of reparatory policies during political transition. Recognizing that the direct application of Inter-American case law to situations of mass atrocity is not always viable in practice, the author analyzes regional human rights jurisprudence, particularly that relating to compensation, to determine what role the Court’s rules can and cannot play as a reference for policymakers and societies faced with the challenge of designing a reparations program. He concludes that while landmark Court decisions like Velásquez Rodríguez provide general normative guidance, there are significant obstacles to extending to the transitional justice context many of the measures, amounts, and formulas relied upon by the Court in awarding compensation. The fairness of compensation outside the courtroom cannot be determined with reference to predetermined rules, but depends on the factual context in which the measures are adopted including the number of victims involved. A better source of comparative inspiration is found in the Court’s growing practice of adopting non-monetary reparations measures to deal with moral harm.Less

Abstract and Concrete Review in the United States

Alec Stone Sweet and Martin Shapiro

in On Law, Politics, and Judicialization

The diffusion of constitutional judicial review over the past half-century has resulted in the emergence of two dominant ‘models’ of review, the American and the European. The European model, called ... More

The diffusion of constitutional judicial review over the past half-century has resulted in the emergence of two dominant ‘models’ of review, the American and the European. The European model, called ‘abstract review’, is typically defended as guaranteeing a more complete system of constitutional justice than does the American model, in which the orthodoxy of the ‘case and controversy requirement’ enables judicial – ‘concrete’– review while prohibiting abstract review. In the one paper included in Ch. 6, parts of which were first published by Stone Sweet in 1998, this orthodoxy is used as a reference point to ground a discussion about the essentially abstract nature of all judicial law-making, and to question the extent to which this limitation and the different forms of jurisdiction and modes of review matter; some of these questions are answered with reference to the United States, using Europe as a backdrop. The paper begins by discussing how and under what conditions abstract review of statutes is exercised in America, and then two particular American supreme court decisions, made in the summer of 1997, that invalidated legislation before them after having suspended the application of the statutes pending a ruling on their constitutionality are examined, to show how such abstract review operates in practice. A more general discussion of judicial law-making is then pursued in light of orthodox distinctions between different modes of review, and the last section of the paper concludes that the judicialization of politics proceeds through judicial law-making, which is always a blend of the abstract and concrete review.Less

Escaping by Design?

Noel Maurer

in The Empire Trap: The Rise and Fall of U.S. Intervention to Protect American Property Overseas, 1893-2013

This chapter recounts how over the course of the 1950s, 1960s, and 1970s a series of small legal and political innovations began to allow private investors to use international tribunals to sue ... More

This chapter recounts how over the course of the 1950s, 1960s, and 1970s a series of small legal and political innovations began to allow private investors to use international tribunals to sue foreign governments and then use American and European courts to enforce the decisions. Before 1945, the doctrine of absolute sovereign immunity held that no state could be held accountable for its actions in the courts of another state. After 1945, reforms began to chip away at sovereign immunity. Reforms arose from efforts to depoliticize investment disputes: first by giving private investors the right to take foreign governments to arbitration without the need to have their home government “espouse” the claim; then by giving national courts the right to enforce arbitration judgments against foreign governments.Less

Impact on the Right to Consular Notification

Christina M. Cerna

in The Impact of Human Rights Law on General International Law

This chapter explores the issue of the right to consular notification, set forth in Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). The differing considerations of this ... More

This chapter explores the issue of the right to consular notification, set forth in Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). The differing considerations of this right by the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (Inter-American Court) provide material for a case study of the impact of international human rights law on general international law, to gauge what some have termed the ‘humanization’ of general international law. The ICJ judgments, when contrasted with the advisory opinion of the Inter-American Court, also provide an interesting case study on the results of a multiplicity of international jurisdictions dealing with the same facts.Less

The Common Thread: Diversion in Juvenile Justice

Franklin E. Zimring

in American Juvenile Justice

Two justifications existed from the start for creating a juvenile court, referred to as the interventionist and diversionary justifications for a separate children's court. The diversionary ... More

Two justifications existed from the start for creating a juvenile court, referred to as the interventionist and diversionary justifications for a separate children's court. The diversionary justification for juvenile court was always the most important of the two rationales, and it remains so today. Diversionary principles of juvenile justice are well suited both to a modern theory of adolescent development and to concern about procedural fairness and proportionality in legal response to youth crime. This chapter shows both continuity and coherence to the diversionary rationale for juvenile courts through the first hundred years of their history. The chapter is organized as follows. The first section sets out the two discrete justifications for creation of a juvenile court and documents the diversionary agenda of turn-of-the-century reformers. The second section shows the extent to which the major programmatic elements of early juvenile justice were consistent with diversionary justifications and methods. The third section addresses the modern concept of juvenile justice as reflected in two leading Supreme Court cases. It was a diversionary theory of juvenile court that could accommodate due process rules without sacrifices of youth welfare. The fourth section is concerned with the contemporary understanding of juvenile justice as a passive virtue. It shows that the effectiveness of juvenile courts in protecting youth from full criminal punishment is the heart of the reason the court has so many contemporary enemies.Less

Reducing the Harms of Minority Overrepresentation in American Juvenile Justice

Franklin E. Zimring

in American Juvenile Justice

This chapter identifies some of the key policy choices that must be made in reducing injustices found in American juvenile courts. It argues that reducing the hazards of juvenile court processing may ... More

This chapter identifies some of the key policy choices that must be made in reducing injustices found in American juvenile courts. It argues that reducing the hazards of juvenile court processing may be a better approach to protecting minority youth than just trying to reduce the proportion of juvenile court cases with minority defendants. The chapter is organized into two sections. The first section concerns the conceptual equipment necessary to assess the impact of legal policies on minority populations. The second section attempts to apply the apparatus developed in the first section to discuss recent chapters in juvenile justice law reform: changes in transfer policy, the deinstitutionalization of status offenders, and the embrace of diversion programs.Less

American Courts, Global Norms

Martin S. Flaherty

in Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs

This chapter considers a phenomenon that has consistently been among the most contentious of modern legal controversies—the application by American courts of international human rights. Recent years ... More

This chapter considers a phenomenon that has consistently been among the most contentious of modern legal controversies—the application by American courts of international human rights. Recent years have witnessed high-profile conflicts over international human rights law. One major battle involves whether, when, and how U.S. courts should recognize rights set out in the nation's treaty obligations. Another heated area of contention has arisen under an act of Congress, the Alien Tort Statute. Perhaps most heated of all have been debates over the use of foreign legal materials, including customary international law, to interpret the Constitution of the United States. In these areas as well, the Supreme Court, and the judiciary generally, has wavered. Yet once more, a fresh appreciation of the principles the Founders entrenched, the subsequent custom that on balance confirms that original vision, and the consequences of the way nations interact in a globalized age—all these imperatives point away from the path that the judiciary appears more and more to be considering, and back to the course first established.Less

State Sovereignty versus International Concern in Some Recent Cases of the Inter-American Court of Human Rights

Frits Kalshoven

in State, Sovereignty, and International Governance

This chapter discusses the role of the Inter-American Court of Human Rights (the ‘Commission’). By comparing two recent cases that have been brought before that Court it shows how the Court tries to ... More

This chapter discusses the role of the Inter-American Court of Human Rights (the ‘Commission’). By comparing two recent cases that have been brought before that Court it shows how the Court tries to maintain the delicate balance between state sovereignty and the collective guarantee against human rights violations provided by the American Convention on Human Rights. The first case, that of Las Palmeras, concerns a complaint by Colombia that the Commission was overstepping its competence in applying not only human rights but international humanitarian law as well; the State won, and was confirmed in its sovereign right to accept or reject an expansion of the Commission's powers not specified in the Convention. The second case, the Case of the Constitutional Court, concerns the ‘withdrawal’ by Peru of its acceptance of the jurisdiction of the Court after this had been seised of a complaint; the State lost, and was deemed by its earlier act to have forfeited the sovereign right to withdraw its recognition of the competence of the Court, as an essential element of the system of ‘collective guarantee’ of the human rights enshrined in the Convention.Less

Women and the Law of Courtship in Eighteenth-Century America

Ruth H. Bloch

in Gender and Morality in Anglo-American Culture, 1650-1800

This chapter discusses how the legal regulation of marriage shifted from seventeenth-century legislative action to an increased reliance upon civil suits in the eighteenth century. It argues that the ... More

This chapter discusses how the legal regulation of marriage shifted from seventeenth-century legislative action to an increased reliance upon civil suits in the eighteenth century. It argues that the long-term shift to the civil litigation of disputes over courtship enabled early American courts rapidly to apply to decisions about cases increasingly sympathetic popular attitudes toward innocent women wronged by deceitful men. Data shows that the state had withdrawn from the regulation of courtship and marriage would ignore the civil side of the law. Cases involving accusations of seduction and breach of promise were being brought to colonial courts already in the mid seventeenth century and continued to be litigated against into the nineteenth century. It is clear that the definitions of masculinity and femininity were undergoing a historical change in eighteenth-century American civil courts and in other cultural venues, prefiguring “Victorian” morality long before Victoria mounted her throne.Less

Procedural Issues

DINAH SHELTON

in Remedies in International Human Rights Law

International tribunals have adopted rules and decided cases setting forth the procedural requirements to claim remedies, including standing to file claims and presentation of claims. This chapter ... More

International tribunals have adopted rules and decided cases setting forth the procedural requirements to claim remedies, including standing to file claims and presentation of claims. This chapter reviews the rules and case law on these issues. International tribunals have used their implied powers to ensure that the term ‘victim’ or ‘injured party’ is interpreted to achieve the goal of wiping out the consequences of the harm, even where the consequences are collateral to the immediate injury. In so doing, the Inter-American Court has developed a practice of dividing awards among survivors according to its own view of appropriate succession. This practice unsettles the legitimate expectations of individuals living within a specific legal system that establishes who are their heirs and successors. It also divests spouses of a portion of their marital property. The Court should reconsider its practice.Less

Enforcement of Judgments

DINAH SHELTON

in Remedies in International Human Rights Law

All international tribunals have expressed concern over ensuring that their views, decisions, and judgments are made effective and that remedies are afforded to the victims of human rights ... More

All international tribunals have expressed concern over ensuring that their views, decisions, and judgments are made effective and that remedies are afforded to the victims of human rights violations. Some of the most innovative developments in the law of remedies can be seen in this regard, such as the establishment of trust funds by the Inter-American Court. International tribunals have jurisdiction to protect the awards made to victims. As the Inter-American Commission's evaluation demonstrates, compliance with what states choose to perceive as mere recommendations has not been good. A similar study of compliance with views of the United Nations Human Rights Committee or Committee on the Elimination of Racial Discrimination would probably yield similar results. States do seem to take more seriously judicial bodies and the treaty commitments they have undertaken to abide by judgments in cases to which they are party.Less

The Fragmentation of International Justice

in The Perils of Global Legalism

The international adjudicatory environment is a bewildering jungle of judicial, quasi-judicial, and advisory bodies, some global and some regional or bilateral, with overlapping jurisdiction and no ... More

The international adjudicatory environment is a bewildering jungle of judicial, quasi-judicial, and advisory bodies, some global and some regional or bilateral, with overlapping jurisdiction and no hierarchical structure to ensure uniformity in the law. Aside from the International Court of Justice, there is an International Tribunal for the Law of the Sea, the World Trade Organization Dispute Settlement Mechanism, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court, and the European Court of Justice (ECJ). Why are there so many international tribunals? Why isn't there a hierarchical system of the type that exists in nation-states? After surveying the international judicial landscape, this chapter argues that the fragmentary tribunals are the result of a collision between the ambitions of global legalism and the realities of politics. It focuses on the Inter-American Court on Human Rights, the General Agreement on Tariffs and Trade and World Trade Organization, the European Court of Human Rights, and the ECJ, and then comments on the links between arbitration, adjudication, and global legalism.Less

The Inter-American Court of Human Rights: How Constitutional Lawyers Shape Court Authority

Alexandra Huneeus

in International Court Authority

This chapter seeks to explain why the impact of the Inter-American Court of Human Rights varies greatly across the different Latin American countries under its jurisdiction. Three case studies ... More

This chapter seeks to explain why the impact of the Inter-American Court of Human Rights varies greatly across the different Latin American countries under its jurisdiction. Three case studies suggest that the uneven spread of constitutional ideas and practices across Latin America helps shape the type of authority the IACtHR exerts. In Colombia, where neoconstitutionalist lawyers were able to successfully ally themselves with reformers and participate in the construction of a new constitution and court starting in 1991, the Court now enjoys narrow, intermediate, and extensive authority. In Chile, where constitutional reform was muted, and neoconstitutionalist doctrines have not found strong adherents in the judiciary, the IACtHR has achieved narrow authority and, at times, intermediate authority. In Venezuela, neoconstitutionalism was sidelined as the new Bolivarian constitutional order was forged. Meanwhile, the Mexican case study suggests that the neoconstitutionalist movement can also work transnationally.Less

Not-so-Threatening Foreigners: Nationality as a Core Human Rights Issue: (Advisory Opinion 4/84)

Marie-Bénédicte Dembour

in When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint

This chapter considers the first ruling of the Inter-American Court on a migrant issue. This ruling, adopted under the advisory jurisdiction of the Inter-American Court in 1984, concerned conditions ... More

This chapter considers the first ruling of the Inter-American Court on a migrant issue. This ruling, adopted under the advisory jurisdiction of the Inter-American Court in 1984, concerned conditions of access to nationality through naturalisation in Costa Rica. The Costa Rican case is used to determine how the Strasbourg Court has approached cases which bring out nationality issues. It also sketches important differences in the composition of the European and Inter-American Courts.Less

Introduction

Andrew Legg

in The Margin of Appreciation in International Human Rights Law: Deference and Proportionality

The concept of the margin of appreciation has been most developed by the European Court of Human Rights. It is also present in the jurisprudence of the Inter-American Court of Human Rights and the UN ... More

The concept of the margin of appreciation has been most developed by the European Court of Human Rights. It is also present in the jurisprudence of the Inter-American Court of Human Rights and the UN Human Rights Committee, although it is understudied and less commonly employed by these tribunals. This introductory chapter discusses the origins of the margin of appreciation and how the concept operates within these three systems of international human rights protection. It also provides a summary of the book and explores its methodology. The approach taken in the book involves both theoretical discussion and the exposition of case law. The book seeks to provide a conceptual analysis of the margin of appreciation and a justification for its use, whilst providing an accurate account of relevant case law. Finally, the chapter explores whether the margin of appreciation can properly be referred to as a “doctrine”.Less

The Historical Development of International Advocacy

Arman Sarvarian

in Professional Ethics at the International Bar

This chapter traces the historical development of international advocacy from antiquity to the closure of the Permanent Court of International Justice in 1945. In identifying a ‘diplomatic tradition’ ... More

This chapter traces the historical development of international advocacy from antiquity to the closure of the Permanent Court of International Justice in 1945. In identifying a ‘diplomatic tradition’ emanating from the procedures and practices of nineteenth-century inter-State arbitration, the chapter sets the scene for explaining the culture and experiences of advocacy before the International Court of Justice and other inter-State courts in Chapter 4. It focuses upon the origins of procedural rules concerning representation and case presentation and the issues that arose in the practice of this classical period of arbitral dispute resolution that recur before its successor to the present day, including false documents and experts as counsel. It considers the status of agents as well as counsel and advocates in the Hague Peace Conferences, the Permanent Court of Arbitration, the Central American Court of Justice and the Permanent Court of International Justice. It sets out early efforts to professionalize the bar of the PCIJ in the 1920s and 1930s as a precursor to the debates today.Less

International Law in American Courts

Gary Born

in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law

This chapter looks at the grave flaws in the current treatment of international law in American courts. Both the status and content of public and private international law in the United States are ... More

This chapter looks at the grave flaws in the current treatment of international law in American courts. Both the status and content of public and private international law in the United States are uncertain, frequently governed by contradictory or parochial rules of State law; the resulting body of international law that is applied by U.S. courts is unpredictable and incoherent. Over the past fifty years, U.S. federal courts have also increasingly marginalized both international law and the role of American courts in resolving international disputes. This treatment of international law threatens serious damage to historic U.S. values and frustrates vitally important national policies. The chapter then considers how the current treatment of international law in American courts is also contrary to the U.S. Constitution’s allocation of authority over the nation’s foreign relations and international trade, which vests the federal government with both plenary and exclusive authority over U.S. foreign relations and commerce, while, exceptionally, forbidding State involvement in either field. Moreover, this treatment conflicts with vital national interests and policies in both fields, frustrating long-standing national interests in the nation’s compliance with international law and development of the international legal system.Less