Inter-American Human Rights System as a Transnational Public Sphere: Legal and Political Aspects of the Implementation of International Decisions (original) (raw)
SUR. Revista Internacional de Direitos Humanos, 2011
Th is article discusses two main arguments. The first is that the Inter-American System of Human Rights (ISHR) provides the institutional basis for the construction of a transnational public sphere that can contribute to democracy in Brazil. Issues that are not recognized on the national political agenda can thrive in these transnational spaces. However, for the ISHR to function as a transnational public sphere, it needs to have credibility and its orders must be respected by the states. Th e second argument of this paper is that one of the challenges to the credibility of the ISHR is the reluctance of the national legal community to implement international human rights law in practice. We refer here to both the implementation of international decisions against Brazil and to so-called “conventionality control.” We have a legal duty to conform our conduct to international human rights standards, which have thus far been neglected
Resisting the Inter-American Human Rights System
Yale Journal of International Law, 2018
International human rights law today is being questioned on the basis of the regime’s scope of authority and enforceability. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American States accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of States and the individual, creating a kind of inter-American constitutionalism. Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and int...
Reconceptualising the Impact of the Inter-American Human Rights System
2017
This article offers a reconceptualization of the impact of the Inter-American Human Rights System (IAHRS, or the System). 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. 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.
Beijing Law Review
The Inter-American human rights system is one of the major regional human rights systems globally. In spite of the availability of human rights instruments in the region, some of which are legally binding, the spate of human rights abuse still leaves a sad commentary. The objective of this paper therefore is to take a critical survey of the human rights instruments in the region with a view to assessing their strengths and constraints. The method of research is basically doctrinal and utilizes the major human rights instruments in the region such as the Charter of the Organization of American States (OAS), the American Declaration of the Rights and Duties of man, and the American Convention on Human Rights in its evaluation. It is the finding of the paper that the Inter-American system indeed has a number of positive features such as the emphasis placed on democratic governance and third party interventions in the adjudicatory process among others. The paper has also identified a number of weaknesses in the system including that the Inter-American Commission lacks the power to refer a case to the Inter-American Court where the State concerned has not ratified the American Convention on Human Rights; and further, the Commission's recommendations are not legally binding. Therefore, the paper recommended among other things that the Commission be able to transmit a case directly to the Court whether or not the party concerned has ratified the American Convention.
The Inter-American Human Rights System: Notable Achievements and Enduring Challenges
In the teaching, as well as in the historiography, of international human rights, regional human rights systems, with the partial exception of the European Court of Human Rights, remain marginalised. This is regrettable for a number of reasons; not least because the richness of regional experiences with human rights offers us a more nuanced understanding of the enduring attraction of human rights around the world (as well as a better sense of the diversity and contentious political struggles that characterise them), than that prevailing in the current literature proclaiming the endtimes of human rights (Hopgood 2013; Moyn 2012). Nowhere can this be seen better than in the region of the Americas, where the Inter-American Human Rights System (IAHRS) emerged to play a vanguard role in the development of the modern international human rights regime. This short piece briefly reviews the current state of the IAHRS, and highlights its key achievements, as well as some of the many challenges it faces. It should be pointed out, from the outset, that any list of achievements and challenges inevitably depends on perspective, the specific yardstick adopted, and, in particular, the understanding of what could be reasonably expected from the IAHRS.
International Law and the Protection of Human Rights in the Inter-American System
Houston Journal of International Law, 1997
Inter-American Commission on Human Rights of the Organization of American States. Affiliation for identification purposes only. The opinions expressed are those of the author alone and are not to be attributed to the Organization of American States or any of its organs. 1. U.N. CHARTER art. 2, para. 1. 2. See id. arts. 3-4. 3. See ARTHUR LARSON ET AL., SOVEREIGNTY WITHIN THE LAW 125 (1965). 4. See WERNER LEVI, CONTEMPORARY INTERNATIONAL LAW: A CONCISE INTRODUCTION 73 (2d ed. 1991).
The Inter-American Human Rights System: An Effective Institution for Regional Rights Protection?
2017
The Inter-American Court of Human Rights and the Inter-American Commission on Human Rights are charged with protecting human rights in the Western Hemisphere. This Article explains the workings of this regional human rights system, examining its history, composition, functions, jurisdiction, procedure, jurisprudence, and enforcement. The Article also evaluates the system's historical and current effectiveness. Particular attention is given to the disconnect between the system's success with the region's Latin-American nations and its rejection by Anglo-American States, as well as to the potential to use the system to improve human rights in Cuba.
The Inter-American Human Rights System: The Law and Politics of Institutional Change
This briefing is based on the principal conclusions of the second workshop of the Inter-American Human Rights Network, held at UCL's Institute of the Americas in October 2015 . The workshop discussions examined the consistent challenges to its institutional development that the Inter-American Human Rights System (IAHRS) has faced since its inception. At the same time, participants highlighted how the IAHRS has expanded as civil society organisations (CSOs) have strengthened, as the jurisprudence has accumulated and as the System has built up its legitimacy over time. Though the most recent reform process has now concluded, the IAHRS continues to face a number of challenges, and it will need to seek to institutionally adapt and innovate if it is to maintain its impact into the future.
The Impact of the Inter-American Human Rights System beyond Latin America
Transformations on the Ground: The Impact of the Inter-American Human Rights System and Ius Constitutionale Commune on Latin America, 2023
Global human rights governance is at a critical juncture. International politics has turned distinctly hostile to human rights. Major powers in the current multi-polar world have embraced a transactional and anti-liberal foreign policy, with little salience given to human rights concerns. The European Union is consumed with disintegrating and nationalistic forces on its own continent, with the so-called populist resurgence underpinning a political vision that is overtly anti-rights. The international human rights regime appears powerless when confronted with entrenched rights-abusive regimes. Even in some scholarly Ivory Towers the international human rights project is dismissed as elitist, rigid and inflexibly imposing a universalising morality at the expense of local customs and standards of behaviour. Confronted with dramatic global inequalities and accelerating climate emergencies, international human rights are criticised for offering little, or no, practical assistance in efforts to bring about a more just and equal world for people, and for being underpinned by minimalist ambitions of the possibilities of a different, more sustainable and just world. It is precisely in relation to these overlapping political, socio-economic and intellectual challenges that I hope to offer in this chapter a partial corrective to the disparate gloomy assessments of the present state and possible future trajectories of international human rights. I will do so through a series of reflections on the contributions of the Inter-American Human Rights System (IAHRS) to the theory and practice of global human rights governance. More specifically, the chapter highlights three areas of contributions. First, by adopting a historical perspective on the institutional development of the IAHRS, we are reminded of the global and interconnected character of the evolution of the modern international human rights regime. Far from a straightforward narrative of the international human rights as a result of Western imposition, the origins and early developments of the IAHRS demonstrate the central protagonism of the Global South in the emergence and consolidation of global human rights governance. Second, the IAHRS has played a central role in the normative construction and evolving interpretations of international human rights standards. Third, the IAHRS has made important contributions to the theory and practice of human rights governance as an exemplar of how international law and institutions can advance the realisation of rights even in the absence of robust enforcement mechanisms and in often inhospitable political conditions.
Resisting the Inter-American Human Rights System (2019)
Yale Journal of International Law, 2019
International human rights law today is being questioned on the basis of the regime’s scope of authority and enforceability. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American States accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of States and the individual, creating a kind of inter-American constitutionalism. Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and international courts. States in general, and their courts in particular, have become less receptive and at times even opposed to what they perceive as an overly aggressive approach to adjudication. Drawing on interviews with current constitutional judges from three Latin American countries, this Article identifies and analyzes three core facets of resistance and backlash in the inter-American human rights system. It then offers two avenues for reform to strengthen the system: first, the reformulation of legal doctrines used by the international human rights courts to mediate their relations with member States; and second, the adoption of new mechanisms to monitor compliance with decisions by international courts.
The Impact of the Inter-American Human Rights System: Current Achievements and Future Challenges
This briefing outlines the principal conclusions and policy implications of the inaugural workshop of the InterAmerican Human Rights Network, held in Mexico City in October 2014.2 The workshop discussions suggest that while impact is shaped by a number of factors, the Inter-American Human Rights System (IAHRS) is likely to be most effective where its various mechanisms are employed in a coordinated fashion; where its decisions attract widespread media attention; and where domestic actors utilise its rulings and precedents to further their own efforts to bring about national-level policy change. In seeking to expand its impact in the future, the IAHRS will need to overcome challenges related to its financing and authority, address shortcomings in the collection of data on its activities, and effectively manage the potentially divergent interests of litigants and victims within the system.
Human Rights as Transnational Law
AJIL Unbound
In 1916, at the first meeting of the then newly created American Institute of International Law, jurists from different countries adopted a declaration stipulating that “[i]nternational law is at one and the same time both national and international.”1 A century later, Latin American international human rights law clearly reflects that idea. Since the adoption of the American Declaration of the Rights and Duties of Man in 1948, and especially since the 1950s, with the creation of the Inter-American Commission on Human Rights, and later with the adoption of the American Convention on Human Rights in 1969, human rights in Latin America have been, are, and will continue to be an essentially regional phenomenon of international law. By examining the Inter-American Court of Human Rights’ case law, this essay analyzes the way in which Latin America has articulated transnational human rights law, from the establishment of the inter-American system, to the distinctive forms of interaction a...
Rethinking the Impact of the Inter-American Human Rights System
This chapter introduces a forthcoming book ('The Inter-American Human Rights System: Impact Beyond Compliance') and is divided into three parts. The first part identifies key gaps in existing human rights scholarship, particularly in relation to the IAHRS, and makes the case for the need to go beyond conventional compliance models of international human rights. The second part outlines three core perspectives on the System’s impact on human rights and it offers a synthesis of the key findings of the volume. Building on these insights, the final part provides reflections on the future prospects of the System by locating it in its broader global context.
The paper examines decisions from the Inter-American Court of Human Rights regarding the validity of state parties’ amnesty laws under the American Convention. The objective is to understand the reasons used by the Court to ground the claim that domestic amnesty laws lack legal effect. This analytical effort is necessary to face the question of whether regional fragmentation can be considered as new Grossräume. The paper aims to shed light on political choices, not neutral statements, that are implied in the Court's reasoning, that is, the universalist pull of human rights and their superior status when contrasted with domestic laws. Even if there is no possibility of a direct analogy between the Schmittian concept and the Inter-American System, the latter intends to exert hegemonic influence over the region, and this trend has to be analysed considering how political choices have been justified by the Inter-American Court.
THE INTER AMERICAN AND EUROPEAN CONTEXTS OF HUMAN RIGHTS PROTECTION
Regional systems of human rights are part of a complex protective system that also includes national and global instruments. One of the important advantages of regional systems in comparison with global protection instruments of human rights lies in the lower difficulty of those systems in establishing consensus on these rights. Undeniably, the Inter-American and European systems are the most structured and developed and are specific object of analysis in this paper. After a reflection on the construction of the Systems has many peculiarities because of the cultural, legal, and historical circumstances, but a comparative study of those systems is important to understand some common problems and to analyze different ways to deal with the protection of human rights. As will be showed in this paper, the hypothesis is true because, for example, the number of processes is very diverse, but both systems have strong problems in correctly enforcing their decisions. 68 Revista da Faculdade de Direito -UFPR, Curitiba, vol. 61, n. 3, set./dez. 2016, p. 67 -89