The Future of the Inter-American System of Human Rights--an introductory note/O Futuro do Sistema Interamericano de Direitos Humanos--uma nota introdutoria/El futuro del Sistema Interamericano de Derechos Humanos--una nota introductoria.
| Autor | Torelly, Marcelo |
The field of studies on the Inter-American Human Rights System (IAHRS) has expanded at an accelerated pace. The mobilizing impact of the Inter-American Commission on Human Rights enabled the emergence of a large literature that addresses its almost-judicial role in the formation of transnational mobilization networks on human rights. Also, new transversal constitutional actors emerged throughout the region, and attention has been paid to the importance and the limits of international civil society organizations. The Commission's special rapporteurship system has also generated wide-ranging local advocacy processes, both in government and non-governmental actors, addressing key issues for the development of human rights in the region. Not least, the use of precautionary measures has generated crises with Member States and was one of the triggers for the beginning of a controversial process of reform.
The Inter-American Court is also the focus of success, disputes and controversies. Internationally recognized for its leading role in promoting the universalism of Human Rights and the development of important advances in such different areas such as the struggle against impunity, indigenous rights, freedom of expression, and human mobility issues (migration, refugee and statelessness), to give just a few examples, the Court has gradually expanded its attributions and influence. The emerging doctrine of conventionality control and its relation to the domestic constitutional judicial review has become one of the main trenches of theoretical and dogmatic disputes in the region, and the debate on the legitimacy of the Court has produced rich developments such as the emergence of a wide-ranging public discussion on its functioning, access mechanisms and personnel selection.
With the System exposed to an unprecedented financial crisis in the year of 2016, some of these issues have become even more latent. After all, if the System really were as successful as presented by some studies in the literature, why would States be underfunding it? Or, on the contrary, would it be precisely such a success that leads to a movement of constriction by States which, in practice, do not want a strong mechanism of supervision?
This dossier critically covers this set of issues. It brings together authors directly engaged in the practice of human rights in the region for a collective effort oriented to map and interpret the functioning of the System. It take stock of the rich debate undertaken over the last decades, points out weaknesses and, especially, alternatives so that from the multiple crises that pervade the Americas today, renewed mechanisms for the protection and promotion of human rights arise.
The dossier is divided into three parts, each with a main goal: (i) to accumulate the debate and evaluate the impact of the System; (ii) to discuss recent advances in under-exploited areas in the literature; and (iii) to assess how the overlapping crises that unfold in the region concurrently limit and provide opportunities for progress.
The first part of the dossier seeks to answer how does the IAHRS impact human rights domestically? Four articles articulate answers to this question on multiple fronts of analysis.
Moving away from a common tendency in the literature and in traditional legal practice, which is to associate impact with strict compliance of the rules of international law and the decisions of the courts responsible for its application, Par Engstrom reconceptualizes the idea of "impact". This first article works as a kind of introduction to this part of the dossier, presenting questions that will be further explored by the other authors. Engstrom identifies at least three areas of impact that are independent of the traditional notion of compliance with international law:
(I) the mobilization of civil society;
(II) the influence of Inter-American normative standards in the domestic constitutional debates of the region; and
(III) the leading role of the multiple domestic institutions responsible for implementing the decisions and recommendations that emerge from the System.
If from a traditional perspective the impact of the System is considered to be very low, with a modest level of full compliance with rulings and recommendations, from this broad perspective it becomes possible to identify a wide range of relevant changes influenced by the protagonist of multiple actors: the System, the organizations that activate it and the multiple agencies that, transversally (and not always in a harmonious way) implement their deliberations.
Moving from the general analysis to a specific topic, Carina Calabria reflects on how the decisions of the Inter-American Court determine legislative changes that have been put in practice by the States. Unlike other human rights tribunals, the Inter-American Court of Human Rights began to include such orders among its reparation measures imposed on States.
When analyzing 92 rulings determining legislative changes issued in 72 decisions, Calabria identifies twelve key themes of incidence of the Court of San Jose:
(1) Disproportionate use of force by law enforcement agencies and
agents;
(2) Military Jurisdiction;
(3) Prison system and Criminal Justice;
(4) Amnesty Laws and statutes of limitation;
(5) Strengthening the Rule of Law and due process
(6) Freedoms of thought and expression;
(7) Political-electoral rights;
(8) Rights of indigenous, tribal and traditional peoples;
(9) Rights of children and adolescents;
(10) Gender rights;
(11) Rights of migrants and rights to a nationality and;
(12) Reproductive rights.
They are classified into five levels of effectiveness (ineffective, of limited effectiveness, medium effective, high effective, and formal effective).
Among its conclusions, it emphasizes that even when the effectiveness of decisions is limited, there is rarely an absolute inertia from the state (reinforcing Engstrom's thesis on multiple forms of impact), and that the Court's highest incidence occurs when several state agencies act in coordination to promote change. Contrary to the literature that expects a low effectiveness of the System, the research reveals that 42 sets of determinations had formal, high or median efficacy against only 29 ineffective or with low effectiveness.
The third article in the dossier focuses on how the System has contributed to the formation of a common constitutional right in Latin America. The doctrine of the ius constitutuinale commune has been radiated especially through the Max Planck Institute for International and Comparative Law, in Heidelberg (Germany), along with countless defenders--and some sharp critics--in the region.
The defense of the thesis of regional constitutionalisation is made by Flavia Piovesan, who analyzes a series of decisions of the Inter-American Court that have played a transformative role in domestic legal orders. The thesis underlying the argument of regional constitutionalisation is that the Court functions as a propelling space for a multilevel local-regional dialogue.
On the one hand, Latin American constitutions are gradually opening up to international human rights law. On the other, the international court applies the pro homine principle to interpret the rights and guarantees contained in the American Convention on Human Rights in an expansive way. From the dialectic between these two movements, a set of common minimum protective standards could emerge, strengthening human rights in the region.
Finally, the fourth article of the first part of the dossier dialogues with a theme that crosses the previous three: the emergence of the control of conventionality. The thesis of a regional judicial review by the Inter-American Court has gradually expanded and fragmented over the last few years.
If at first the San Jose court was responsible for monitoring compliance with the provisions of the American Convention by the States-Parties in individual decisions, the Court was gradually perceived as a kind of constitutional court of the Americas introducing this concept. Its gradual acceptance or rejection by the domestic courts of the region led to the emergence of another debate, on the domestic application of such a judicial review.
David Lovaton analyzes this process from four critical premises. First, if when we accept that domestic courts must promote control of conventionality, are we referring to a pre-existing international obligation or are we dealing with a new prerogative created by the Inter-American Court itself? Second, investigating the extension of the obligations contained in the Court rulings: whether they are inter partes or erga omnes. Thirdly, by pointing out the complexity and the difficulties so that the local courts have access to the Inter-American Court's jurisprudence in a qualified and consistent manner. Finally, criticizing that this approach tends to make the Inter-American Commission on Human Rights invisible, retaking an integrated perspective of the System as an organic whole that is gradually being ignored by the constitutional theories of the System, pointing to the need to properly understand the role of the two independent case-processing bodies that make up the System.
The second part of the dossier presents new perspectives on the System and some emerging issues, trying to answer where is the InterAmerican System of Human Rights going? What are its new challenges?
The fifth work of the dossier, the first of this second part, uses the Brazilian case to confront a recurrent hypothesis in the specialized literature: the role of international nongovernmental organizations in accessing the System.
Much of the literature, especially in the English language, emphasizes that such organizations should have a central and highly relevant role in the formation of transnational networks, and hence petitioner access to the Inter-American Commission on Human Rights and, consequently, to the Court...
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