Introduction
In the growing historiography of international human rights, regional institutions remain marginalised. This is regrettable; not least because the richness of regional human rights experiences offers us important insights into the enduring attraction of human rights around the world. A regional perspective on human rights gives us a better sense of their diversity and the contentious political struggles that underpin them than what tends to prevail in the burgeoning literature proclaiming the end times (Hopgood 2014) or twilight of human rights (Posner 2014). Nowhere can this be better seen than in the Americas, where the Inter-American Human Rights System (IAHRS, or the System) emerged to play a vanguard role in the development of the modern international human rights regime. Since the creation of the Organization of American States (OAS) in 1948, the IAHRS has been a central actor in the promotion and defence of human rights in the Americas. In difficult and politically divisive situations, such as the rise of the dictatorships in South America and the civil wars in Central America , the Inter-American Commission on Human Rights (IACHR) and, subsequently, the Inter-American Court of Human Rights (IACtHR) have handed down decisions that have guided the activities of human rights advocacy groups and informed statesâ human rights practices throughout the region. Today, the IAHRS continues to shape the regional human rights agenda, as it provides legal, institutional and political tools in efforts to address the regionâs myriad pressing human rights issues.
A critical assessment of the Inter-American Systemâs impact has become increasingly important. This is not least due to the growing demands on the System. The number of complaints submitted to the IAHRS against states by individuals and organisations across the region have been continually rising over the past two decades. In the last 15 years or so the Commission has admitted more than 15,000 petitions. It has also published an extensive range of thematic reports on contemporary regional human rights challenges, and conducted numerous country visits . Meanwhile, the Court has handed down rulings in over 170 cases since its first hearings in 1979, with its caseload rising significantly in recent decades. The expansion of the IAHRS has been accompanied by strident criticisms from OAS member states that have challenged its legitimacy and authority. For many, such criticism is at least partly triggered by the Systemâs influence on sensitive human rights matters in the region. Nonetheless, the undeniable political challenges facing the IAHRS, and human rights globally, require a re-evaluation of existing institutions and strategies (Alston 2017). A regional human rights system, such as the IAHRS, is well placed to respond to the prevailing conditions in its region and to fill in the gaps left behind by shifting global patterns of power. In addition, it is long overdue for scholars of human rights and international law and institutions to pay closer attention to the IAHRS. While scholars are slowly recognising that international human rights standards are conditioned by regional diversity and traditions (Hafner-Burton and Ron 2013), the limited scholarship on regional human rights systems tends to focus on the European Court of Human Rights . There is therefore a pressing need to bring the IAHRS into scholarly debates on human rights.
This book advances a reconceptualisation of how the Inter-American System matters. It is often commented that the IAHRS suffers from a compliance crisis. Governments in the region, in this view, generally refuse to abide by, or simply ignore, the rulings and decisions issued by the Inter-American Commission and the Court. This, it is argued, demonstrates the limited, or indeed, non-existent impact of the IAHRS in ways that undermine its legitimacy and authority. The prevailing view on the IAHRS in the literature is therefore that it is weak and ineffectual. This volume challenges this perspective on the IAHRS by providing an important corrective to top-down compliance models of international human rights law . The main animating theme of this book is that 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. Through a variety of methodological approaches and empirical examples, the chapters in this book find that the IAHRS is activated by domestic actors and institutions in ways that transcend traditional compliance perspectives and that have the potential to meaningfully alter politics and provoke positive domestic human rights change (Alter 2014). Taken together, the contributions to this book reveal the IAHRS to be arguably the most dynamic, and under-studied, component of the international human rights system, and should therefore be of interest to human rights scholarship beyond the Americas.
This chapter introduces the central themes of the book 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 Systemâs impact on human rights and 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 Inter-American Human Rights System Beyond Compliance
There are long-standing concerns for the yawning gap between the human rights standards enshrined in international legal agreements and the lived experiences of people whose rights have been or are at risk of being violated. To many, this gap between rights âon paperâ and rights in practice constitutes an existential threat to the legitimacy of the international human rights regime. Hopgood (2014), for example, argues that international human rights have failed in practice and that those concerned with progressive social change will need to look elsewhere for a legitimating normative framework. In the same vein, Posner (2014) argues that international human rights law was from the outset practically designed to fail. It is clearly true that ongoing massive human rights violations throughout the world represent painful reminders that the remarkable expansion of the international human rights regime since the 1970s in particular has not stopped human suffering. The burgeoning empirical human rights scholarship has cast doubt on the effectiveness of international human rights law in reducing violations.
Over most of the past decade, scholars have recognised that patterns of ratification do not map clearly onto statesâ patterns of human rights activity (Hathaway 2002; Hafner-Burton and Ron 2009). Rather, formal state ratification of human rights treaties is often followed by a protracted and contentious process of political struggle about the domestic implementation of human rights norms. The concern with the post-ratification effects of human rights treaties has shifted the attention of empirical human rights scholarship to the domestic politics of âcomplianceâ (Cardenas 2007; Hillebrecht 2014; Simmons 2009; Goodman and Pegram 2012; Hafner-Burton 2013). Compliance usually refers to the implementation of treaty rules and decisionsârulings, recommendationsâhanded down by international human rights institutions (Grugel and Peruzzotti 2012). Raustiala and Slaughter (2002, p. 539) argue that âmost theories of compliance with international law are at bottom theories of behavioural influence of legal rulesâ and they define compliance as âa state of conformity or identity between an actorâs behavior and a specified rule.â
Yet, as the contributions in this book highlight, compliance perspectives on international human rights have substantial limitations in capturing the variety of effects of international human rights (Howse and Teitel 2010). Analytically, there is an important distinction between âcomplianceâ and âeffectivenessâ that is often glossed over in human rights and international law scholarship. Effectiveness, rather than a limited focus on rule compliance, generally refers to the degree to which the international human rights institutions work to improve human rights conditions and decrease the likelihood of the repetition of abuses, while also providing satisfactory recourse to the victims. Compliance might be necessary for effectiveness, but it is not sufficient. For example, âhigh levels of compliance can indicate low, readily met and ineffective standardsâ or suggest that only compliant states joined the regimes in the first place (Fearon 1998; Downs et al. 1996). Moreover, institutions with âsignificant non-compliance can still be effective if they induce changes in behaviorâ (Raustiala and Slaughter 2002, p. 539). 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. Assessing compliance, then, 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.
The IAHRS demonstrates the inherent limitations of compliance models to understand the impact of international human rights. Compliance rates with both the Commission and the Court are generally low (GonzĂĄlez-Salzberg 2010; Basch et al. 2010). And yet, the demand for the regional human rights system has never been higher, as its caseload continues to increase year by year. This may indicate that despite the low levels of compliance the System matters, particularly to those whose rights have been violated, and to those who are vulnerable to violations. It also suggests potentially significant effects of the IAHRS not captured in compliance rates that demand closer scrutiny. Moreover, the IAHRS matters even in ways that are not captured through an examination of the impact of individual rulings and decisions. For example, domestic courts in the region regularly use the Inter-American Courtâs jurisprudence in its decision-making. This means that much of the litigation based on IAHRS norms and standards never even ends up formally in the System, as litigants can directly activate their rights domestically. Such activities are not registered in the Systemâs caseload, but still represent a fundamental way in which the IAHRS impacts on domestic human rights. Similarly, domestic legislatures in many countries frequently debate and develop legislation based on rights enshrined in the American Convention on Human Rights . And law schools across the Americas increasingly teach the law and jurisprudence of the Inter-American System. In short, the IAHRS matters not only beyond rule compliance, but even beyond the individual cases that end up before the System. Hence, as understood in this book, compliance is narrower than impact in that while the former focuses on implementation of individual judicial rulings, the latter adopts a broader understanding of impact to include indirect effects such as ideational change and empowerment of local actors.1
To date, however, these âextra-complianceâ effects are poorly understood. This is partly explained by the lack of empirically driven and theoretically informed scholarship on the IAHRS, as well as a dearth of systematic comparative analysis. The empirically minded research on the IAHRS that does exist has almost exclusively focused on the Inter-American Court and it has adopted narrow rule ...