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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

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

Forced Disappearances in the Inter-American Human Rights System

Sandra Serrano

in Disappearances in the Post-Transition Era in Latin America

The chapter explains the approach taken toward disappearances by the mechanisms that comprise the Inter-American System of Human Rights. Inter-American jurisprudence is a tool that is not only useful ... More

The chapter explains the approach taken toward disappearances by the mechanisms that comprise the Inter-American System of Human Rights. Inter-American jurisprudence is a tool that is not only useful in litigation within the regional system but also constitutes a fundamental tool which can be adapted for domestic litigation and the construction of public policies in the countries in the region. The chapter argues that the institutional history of the Inter-American System has been shaped by victims and their families as well as by a human rights movement that was itself forged in the struggle against the gravest human rights violations of authoritarian regimes, which were often committed against political opponents. Today that system serves to respond to the new wave of disappearances in post-transitional contexts.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

Enforcing Compliance with the Judgments of the African Court on Human and Peoples’ Rights: Prospects and Challenges

Tarisai Mutangi

in Compliance with International Human Rights Law in Africa: Essays in Honour of Frans Viljoen

This chapter reflects on how compliance can be bridged with the decisions of the African Court on Human and Peoples’ Rights (African Court) at the domestic level. It identifies a two-tier enforcement ... More

This chapter reflects on how compliance can be bridged with the decisions of the African Court on Human and Peoples’ Rights (African Court) at the domestic level. It identifies a two-tier enforcement monitoring framework. The first tier is at the international level where the executive in the form of the AU Assembly and the African Court itself are endowed with the responsibility to monitor compliance with judgments. While the AU Assembly role is rooted in the African Court Protocol, the Court’s role is largely based on judicial activism at that level following the path charted by the Inter-American Court and to some extent, the European Court. The Court has a further role of rendering specific and clear orders as an incentive to facilitating enforcement. Meanwhile, the second tier lies at the national level. A number of distinct functionaries may operate in cohorts resulting in improved compliance with international human rights judgments. In order to make such participation less complex and problematic, the roles of these functionaries in monitoring compliance ought to naturally flow from their traditional competences.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

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

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

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

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

Dispute Settlement and Fresh Water: Trends, Means, and Practice

Laurence Boisson de Chazournes

in Fresh Water in International Law

The resolution of disputes related to issues of fresh water scarcity, degradation, and access to water are evident in practice. There is a staggering diversity of institutions with judicial or ... More

The resolution of disputes related to issues of fresh water scarcity, degradation, and access to water are evident in practice. There is a staggering diversity of institutions with judicial or quasi-judicial authority over these matters, as well as diplomatic means which can help settle these various disputes. A trend towards variation and multiplication of available mechanisms for resolving water-related disputes can be observed. As a consequence of both inter-state and mixed-party disputes concerning water, international courts and tribunals have amassed growing bodies of decisions in water law, and their reliance on the case law of other jurisdictions suggests an evolving harmonization in this field. This cross-fertilization among traditional dispute settlement bodies has progressed concurrently with the development of novel procedures tailored to the uniquely collective interests at stake in natural resource disputes.Less

Reconceptualizing International Human Rights Law Through a Culturally Based Approach: International and Regional Practice

Federico Lenzerini

in The Culturalization of Human Rights Law

This chapter offers a comprehensive assessment of international practice—at both the ‘universal’ and regional level—confirming that today the cultural element represents a decisive factor in the ... More

This chapter offers a comprehensive assessment of international practice—at both the ‘universal’ and regional level—confirming that today the cultural element represents a decisive factor in the context of the interpretation, adjudication, and enforcement of human rights standards. The crucial feature of relevant jurisprudence and other pertinent practice rests in the consideration of the cultural element as the parameter to be used in order to establish whether a human rights breach attained a specially qualified degree of gravity, or even—in many instances— whether such a breach did take place or not. Such an approach covers virtually all human rights standards, including the most fundamental ones. The said practice shows that the process of culturalization of human rights is today a reality determining the scope and content of international human rights law.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

Barbados and the Inter-American Court of Human Rights

Andrew Coyle

in Prisons of the World

In 2005 Glendairy Prison in Barbados was all but burned to the ground following a riot and its 900 or so prisoners were transferred to a former secret US naval base in a remote part of the island. A ... More

In 2005 Glendairy Prison in Barbados was all but burned to the ground following a riot and its 900 or so prisoners were transferred to a former secret US naval base in a remote part of the island. A group of prisoners appealed to the Inter American Court of Human Rights (IACHR) and the author was instructed by the Court to prepare an expert report on their conditions of detention. The chapter describes the difficulties which were placed in his way by the Barbadian government, how he was eventually able to gain access to the prison and the inhuman conditions he discovered there. The story then moves to the seat of the IACHR in Costa Rica where the author presented his findings to the court and where the court in due course delivered its decision.Less

Peru’s ‘Intercultural Law’ Proposal: Promoting Ethnic Diversity in the Administration of Justice

Clara María López Rodríguez

in Identity and Diversity on the International Bench: Who is the Judge?

This chapter critically analyses the role of indigenous peoples in international decision-making focusing on two areas of international law: human rights law as adjudicated by the Inter-American ... More

This chapter critically analyses the role of indigenous peoples in international decision-making focusing on two areas of international law: human rights law as adjudicated by the Inter-American Court of Human Rights (Inter-American Court) and investment law as applied by investment arbitration tribunals. The chapter shows that indigenous peoples’ participation in the international legal system can be better facilitated through the recognition of indigenous peoples’ jurisdiction. Focusing on Peru as a case study, this chapter provides a better understanding of the concept of indigenous peoples’ jurisdiction, analysing its nuances and difficulties, but also the importance of regulating such jurisdiction at the domestic level.Less

Dilemmas of an Expert Witness: Indigenous Land Rights in Suriname and Guyana

Stuart Kirsch

in Engaged Anthropology: Politics beyond the Text

This chapter presents two affidavits submitted to the Inter-American Court. The first case was concerned with the negative consequences of Suriname’s refusal to recognize indigenous land rights, ... More

This chapter presents two affidavits submitted to the Inter-American Court. The first case was concerned with the negative consequences of Suriname’s refusal to recognize indigenous land rights, including the establishment of a nature reserve that become a de facto open-access zone on indigenous land. The second addressed problems associated with indigenous land tenure in Guyana under the Amerindian Act of 2006. Comparing the two cases allows the chapter to make several observations about the dynamics of short-term ethnographic research conducted for expert-witness reports. This includes the need to make affidavits legible to the three overlapping frames of the legal system, the communities seeking recognition of their rights, and anthropology. The chapter also considers the narrative choices in these affidavits, the political dilemmas of being an expert witness, and the compromises of short-term ethnography. Less

Introductory Note: The Activity of the Inter-American Court of Human Rights in 2015

Roberto F. Caldas

in THE GLOBAL COMMUNITY YEARBOOK OF INTERNATIONAL LAW AND JURISPRUDENCE 2016

During 2015, the Inter-American Court of Human Rights issued sixteen judgments in contentious cases and two interpretations of previous judgments that covered a wide variety of salient issues for the ... More

During 2015, the Inter-American Court of Human Rights issued sixteen judgments in contentious cases and two interpretations of previous judgments that covered a wide variety of salient issues for the Inter-American System of Human Rights. The first case selected for this edition of the Yearbook deals with the obligations of states dealing with terrorist threats in the midst of internal armed conflict. The other three cases selected deal with the obligations of states in peacetime: specifically, the obligation to supervise private health providers, particularly when they carry out public functions, the obligation to protect the lives and integrity of women against gender-based violence, and the obligation to guarantee the collective property rights of indigenous peoples while also ensuring the conservation of natural resources. These cases are consistent with the Inter-American Court’s vast jurisprudence regarding states’ duty to guarantee the rights of persons who are particularly vulnerable to human rights abuses.Less

Introductory Note: The Activity of the Inter-American Court of Human Rights in 2014

Humberto Antonio Sierra-Porto

in The Global Community Yearbook of International Law and Jurisprudence 2015

During 2014, the Inter-American Court of Human Rights issued thirteen judgments in contentious cases and three interpretations of previous judgments that covered a wide variety of issues relevant to ... More

During 2014, the Inter-American Court of Human Rights issued thirteen judgments in contentious cases and three interpretations of previous judgments that covered a wide variety of issues relevant to the Inter-American System of Human Rights. The three cases selected for this Introductory Note demonstrate the difficulties faced by societies that have experienced terrorism and the absolute necessity of respecting fundamental human rights even in these circumstances. In particular, the cases address issues regarding the principles of legality and presumption of innocence in criminal proceedings, rights to equality and non-discrimination based on ethnic origin, forced disappearances, prison conditions, sexual violence, torture, and inhuman, cruel, and degrading treatment.Less

Reparations for Victims of Mass Atrocities: Actual and Potential Contributions of the Inter-American Court of Human Rights to the International Criminal Court

Juan-Pablo Perez-Leon-Acevedo

in The Global Community Yearbook of International Law and Jurisprudence 2018

The Inter-American Court of Human Rights (IACtHR) has developed important reparations case-law, especially concerning serious human rights violations. Among international and hybrid criminal ... More

The Inter-American Court of Human Rights (IACtHR) has developed important reparations case-law, especially concerning serious human rights violations. Among international and hybrid criminal tribunals (ICTs), the International Criminal Court (ICC) introduced the first reparations system for victims of international crimes under its jurisdiction. However, whereas the IACtHR orders reparations against states, the ICC can only order reparations against convicted individuals. Thus, this article examines whether, to what extent and how the IACtHR’s practice has actually contributed and/or may potentially contribute to the substantive law and institutional aspects of the ICC’s reparations system. It is found that the ICC’s reparations practice has extensively used the IACtHR’s reparations case-law, especially concerning substantive law, as adapted to the nature and mandate of the ICC. Besides these contributions, the IACtHR’s potential contributions to enhance institutionally the ICC’s reparations system, particularly as for reparations implementation, are discussed.Less