Reconceptualising the Impact of the Inter-American Human Rights System/Reconceitualizando o Impacto do Sistema Interamericano de Direitos Humanos.
| Autor | Engstrom, Par |
This article offers a reconceptualization of the impact of the Inter-American Human Rights System (IAHRS, or the System). The main theme that animates this article is that in order to understand the impact of the IAHRS, and the continuing demand for it from across the region of Latin America, in particular, we need to look beyond rule compliance models of international human rights law. It is often commented that the IAHRS suffers from a compliance crisis. Governments in the region, on this view, generally refuse to abide by, or simply ignore, the rulings and orders issued by the Inter-American Commission and the Inter-American Court. Indeed, the IAHRS suffers from generally low levels of compliance. This, it is argued, demonstrates the limited, or indeed, non-existent impact of the Inter-American System in ways that undermine its legitimacy and authority. And yet, the demand for the regional human rights system has never been higher as its caseload continues to increase year by year. Constant and increasing demand for the IAHRS indicates that the System matters, particularly to those whose rights have been violated. This article examines how, in what ways, and under what conditions the IAHRS impacts on domestic human rights. In a nutshell, the IAHRS is activated by domestic stakeholders in ways that transcend traditional compliance perspectives, and that have the potential to provoke positive domestic human rights change.
There are three main parts to this article. The first part discusses the need to go beyond conventional compliance perspectives on international human rights. The second part highlights three key dimensions of how the IAHRS works in practice by focusing on the role of domestic stakeholders in provoking human rights change. The final part offers reflections on the challenges facing the IAHRS and what a scholarly research agenda on the system might look like in order to contribute towards the genuine strengthening of the System.
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The Inter-American Human Rights System: from compliance to impact
The Inter-American Human Rights System (IAHRS) has emerged as an integral part of the regional institutional landscape of the Americas since the mid-20th century. The system was created and experienced its initial development in a region marked by the Cold War and long periods of repressive and authoritarian rule, from the 1950s to the mid-1980s. During this period, the IAHRS primarily sought to identify general patterns of human rights violations rather than focusing on individual cases. The Inter-American Commission's country visits and reports played an important role in some cases--for example in Nicaragua under Somoza (1978), and in Argentina in 1979--but had limited influence overall. With the general return to democracy in Latin America, the Inter-American System gained in influence. In particular, with the democratic transitions, the System shaped political struggles over transitional justice, and the political calculations made by transitional governments with regards to how to deal with human rights abuses under previous (predominantly military) regimes. From the mid-1990s onwards, the IAHRS turned its attention to the challenge of improving the quality of democratic rule, and efforts to address human rights challenges in a regional context where electoral democracy has made significant advances, but also where there continue to be widespread human rights abuses.
Since its creation, the institutional development of the IAHRS has been significant. The IAHRS has established the legal obligation under regional and international human rights law of states to protect the rights of citizens, and in the light of the failure to do so, the international obligation to hold states accountable. In the process, the IAHRS has evolved from its origins as a 'classical' intergovernmental regime. An independent regional human rights court and an autonomous commission are regularly judging whether regional states are in compliance with their international human rights obligations. The access of individuals and regional human rights organizations to the human rights regime has strengthened over time as the system has become increasingly judicialized with a procedural focus on legal argumentation and the generation of regional human rights jurisprudence.
These institutional developments notwithstanding, it is regularly pointed out that the IAHRS has a patchy compliance record. General compliance rates with both the Commission and the Court are indeed low. Partial compliance with the System's rulings and recommendations are a common outcome, meaning that states comply with some of the IAHRS' requirements but not all of them. (2) These findings are regularly seized upon to highlight a 'compliance crisis' within the IAHRS, in which governments in the region frequently refuse to abide by, or simply ignore, the rulings and orders issued by the Inter-American Commission and the Inter-American Court. The patchy compliance record demonstrates, on this view, the limited impact of the Inter-American System in ways that undermine its legitimacy and authority.
Nonetheless, the demand for the System has never been higher. The number of complaints submitted to the IAHRS against states by individuals and organisations across the region have been continually rising over the last two decades. This indicates that the System matters, particularly to those whose rights have been violated, and are vulnerable to violations. It also suggests that there are significant 'extra-compliance' effects of the IAHRS that merit closer scrutiny. Recent research, moreover, on little-studied cases of friendly settlements, precautionary measures, as well as strategic litigation by human rights organisations, has consistently confirmed the existence of such effects, which reach beyond the degree of state compliance in individual cases (Engstrom forthcoming). And yet, how could this apparent mismatch between what might be crudely understood as the System's supply of justice in concrete cases, on the one hand, and demand for justice, on the other, be explained? Put differently, how, in what ways, under what conditions, and to whom does the System matter?
The Problem of (Rule) Compliance: towards an understanding of the domestic effects of the IAHRS
The IAHRS offers a unique opportunity to examine how international human rights may matter in ways that are not captured in rates of compliance with formal legal rules and judicial rulings. The limitations of compliance perspectives on international (human rights) law have been noted in the literature (Howse and Teitel 2010). It widely recognised that compliance is characterised by prolonged and often highly contested processes. For example, Hafner-Burton highlights that "compliance is not an all-or-nothing affair and that the effects of human rights regimes, when and where they exist, are conditional on other institutions and actors" (Hafner-Burton 2012: 275). There is also an important distinction between 'compliance' and 'effectiveness' that is often glossed over in human rights and international law scholarship. Compliance usually refers to the implementation of the decisions--rulings, recommendations--handed down by international human rights institutions, such as the lACtHR or IACHR. Raustiala and Slaughter argue that "most theories of compliance with international law are at bottom theories of behavioural influence of legal rules" and they define compliance as "a state of conformity or identity between an actor's behavior and a specified rule" (Raustiala and Slaughter 2002:539). Effectiveness, in contrast, generally refers to the degree to which the international human rights institutions work improves the level of human rights conditions and decreases the likelihood of the repetition of abuses, while also providing satisfactory recourse to the victims.
On this account, compliance might be necessary for effectiveness, but it is not sufficient. For example, international rules as embedded in human rights institutions can be effective even if compliance is low as "high levels of compliance can indicate low, readily met and ineffective standards" and institutions with "significant non-compliance can still be effective if they induce changes in behavior" (Raustiala and Slaughter 2002:539). For Levy et al., referring generally to international institutions, or regimes, "[effective regimes cause changes in the behaviour of actors and in patterns of interaction among them in ways that contribute to the management of targeted problems" (Levy et al. 1995:292). From this perspective, assessments of institutional effectiveness focus on the capacity of institutions to generate specific policies and the extent to which these are implemented through the passage of legislation, the creation or reform of domestic institutions that prove effective in attaining institutional objectives. On this account, the emphasis lies on observable behaviour and effectiveness is evaluated on the basis of the degree to which an institution ameliorates the problem that prompted its creation in the first place. Compliance, in short, is distinct from (although related to) effectiveness. Assessing compliance may shed some light on the effectiveness of international human rights institutions. But it cannot tell the full story, and quite possibly, an exclusive focus on compliance risks being misleading.
Most research to date on the IAHRS has adopted rule compliance perspectives to assess its impact. This body of research has tended to focus on the Inter-American Court. Compliance has been measured by assessing states' implementation of the discrete obligations within each Court ruling. The Inter-American Court's jurisprudence is arguably well-suited for this type of analysis, as the Court outlines specific orders within each case and then the Court tracks states' implementation of those orders. For example, if the Court...
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