The Impact of the Inter-American Human Rights System : Transformations on the Ground

## Abstract The Inter-American Human Rights System (IAHRS) fosters structural transformations throughout the Americas. This collection of analyses builds upon the studies on Ius Constitutionale Commune en América Latina and Latin American transformative constitutionalism to map out both the ground-level human rights impact of the IAHRS and the institutional characteristics that have enabled such fundamental changes in social reality. The volume starts with essays framing the concept and context of IAHRS impact. Then it navigates thematic analyses on specific rights and types of violations that are front and center to the protection of human rights in Latin America. The concluding essays explore whether and how it is possible to optimize the actions of the Inter-American System, indicating possible paths to increase positive human rights impact. The editors contend that the IAHRS victim-centric approach, community of practice, and openness to institutional reinvention have enabled it to create a virtuous cycle that catalyzes human rights in the Americas, furthering democracy and the Rule of Law throughout the continent. Cover The Impact of the Inter-American Human Rights System Copyright Contents Thematic Overview List of Contributors Introduction PART I FRAMING THE IMPACT OF THE INTER-​AMERICAN SYSTEM I.1 Inducing Compliance as a Transformative Process: The Bright Side of a Dismal Record 1. Introduction 2. Latin American Transformative Constitutionalism 3. The Latin American Human Rights Community 4. Compliance as a Transformative Practice 5. Transformative Constitutionalism beyond Compliance 6. Concluding Remarks I.2 Protecting Human Rights in the Americas: The Continuous Role of the Inter-​American Commission on Human Rights 1. Introduction 2. The Role of the Commission through Its Phases 2.1. Phase One: Maintaining a Human Rights Focus among Dictatorships 2.2. Phase Two: Individuals Bring Grievances against Their Nations 2.3. Phase Three: Greater Inclusion and Participation in the Political System 3. Challenges for the Commission in Executing Its Functions 4. Concluding Remarks I.3 Inter-American Human Rights System: Sociopolitical, Institutional, and Cultural Dimensions of Its Transformative Impact 1. Introduction 2. WHY Do We Need the Inter-​American System? 2.1. Structural Challenges 2.2. Contemporary Challenges 2.3. The Aggravation of Challenges in Times of Crisis 3. WHAT Are the Key Components of the Inter-​American System? 3.1. The Victim-​Centric Approach 3.2. Inter-​American Standards 3.3. Comprehensive Reparations 4. How Can One Understand IAHRS Transformative Impact, Taking into Account Its Sociopolitical, Institutional, and Cultural Dimensions? 4.1. Institutional Dimension 4.2. Sociopolitical Dimension 4.3. Cultural Dimension 5. Concluding Remarks I.4 Current Issues and Common Challenges for the Protection of Human Rights in Europe, the Americas, and Africa 1. Introduction 2. The Expansion of Regional Human Rights Protection after the End of the Cold War 2.1. Institutionalization 2.2. Judicialization 2.3. Diversification of Remedial Practice 2.4. Embeddedness 3. The Backlash against the Increasing Scope and Intrusiveness of Regional Human Rights Jurisprudence 3.1. Withdrawal from the Regional Human Rights System 3.2. Institutional Reform 3.3. Noncompliance with Individual Decisions 4. Responses to the Backlash 5. The Road Ahead I.5 The Impact of the Inter-​American Human Rights System beyond Latin America 1. Introduction 2. The IAHRS and the Origins of Global Human Rights Governance 3. The IAHRS and International Human Rights Standards 4. The IAHRS and Transnationalized Human Rights Implementation 5. Human Rights Futures: A World of Regions and Experimental Governance I.6 Conventionality Control: An Expression of the Basic Elements of the Judicial Function 1. Introduction 2. Methodology 3. The Meaning of Conventionality Control 4. The Difference between Adjudication and Execution in Conventionality Control 5. The Role of Res Judicata and Res Interpretata 6. Conclusion I.7 Effectiveness of International Courts: From Compliance to Transformative Impact 1. Introduction 2. Effectiveness as Compliance 2.1. Defining and Measuring Compliance 2.2. Evaluating Compliance with IACtHR Decisions 3. Impact beyond Compliance 3.1. Defining Impact and Effectiveness 3.2. The Effectiveness of the IACtHR 4. Illustrating Effectiveness: The Case of Indigenous Territorial Rights 5. Concluding Remarks I.8 The Use of Transformative Provisional Measures by the Inter-American Court of Human Rights: Toward a Tangible Impact 1. Introduction 2. Human Rights Standards Applicable to Persons Deprived of Their Liberty in Latin America 3. Legal Basis of Provisional Measures in the Inter-​American Human Rights System 4. Transformative Provisional Measures: Toward a Material Impact 5. Detention Conditions of Persons Deprived of Their Liberty in Latin America through the Lens of Transformative Provisional Measures 6. Case Study: Criminal Institute of Plácido de Sá Carvalho v. Brazil 7. Concluding Remarks I.9 Transformative Impact: A Framework for Analysis 1. Introduction 2. What Is Impact? 3. The Transformative Sequence: From Instruments to Outcomes 3.1. Time Zero: The System’s Instruments 3.2. First Stage: Appropriation 3.3. Second Stage: Institutional Response 3.4. Third Stage: Transformations on the Ground 4. Strategies to Document Impact 5. Concluding Remarks I.10 Creating the Narrative of Human Rights Impact in Latin America 1. Introduction 2. Communities of Practice and Narratives of Human Rights Impact 3. Creating Narratives: Cognitive Categories and Framing 3.1. Description through Cognitive Categories 3.2. Framing the Narrative of the Impact 4. Narratives of Impact in Practice 4.1. Deployment of Cognitive Categories to Define the Problem 4.2. Diagnosis of Causes 4.3. Definition of Remedies 4.4. The Narrative of the Impact 5. Conclusion PART II IMPACT AND INTER-​AMERICAN STANDARDS II.1 Impact of the Inter-American Jurisprudence on Economic, Social, Cultural, and Environmental Rights 1. Introduction 2. The Protection of ESCER through Civil and Political Rights 2.1. Indirect Justiciability of Cases in Which a Violation of Article 26 Was Alleged 2.2. Indirect Justiciability in Cases Relating to Groups in a Position of Vulnerability 2.3 Cases Subject to the “Rereading” of ESCER from 1999 to 2017 3. Direct Justiciability via the Protocol of San Salvador 4. The New Model of Direct Justiciability 4.1. A Chronicle of ESCER’s Direct Justiciability through Article 26 4.2. The Case of Lagos del Campo Approach 5. Concluding Remarks II.2 The Inter-American Human Rights System’s Impact on the Protection of the Right to a Healthy Environment 1. Introduction 2. The Protection of Environmental Human Rights in the Inter-​American Human Rights System 2.1. The Protection of the Right to a Healthy Environment 2.2. The Right to a Healthy Environment and Indigenous Communities 2.3. The Right to Access Information Concerning and to Participate in Environmental Matters 3. Transformative Impact: Recognition of Environmental Human Rights at the Domestic Level 4. Concluding Remarks II.3 Indigenous Rights in the Inter-American System: The Application of Precautionary Measures from a Culturally Appropriate Perspective 1. Introduction 2. Inter-​American Human Rights System and General Standards Regarding Indigenous Peoples 2.1. The Right to a Cultural Identity 2.2. The Right to the Lands, Territories, and Resources of Indigenous Peoples 2.3. Participatory Rights of Indigenous Peoples 3. MPMs and Cultural Pertinence 3.1. Precautionary Measure No. 113/​16: “Tres Islas” Native Community of Madre de Dios Regarding Peru 3.2. Precautionary Measure No. 395/​18: Authorities and Members of the Gonzaya (Buenavista) and Po Piyuya (Santa Cruz de Piñuña Blanco) Reserves of the Siona Indigenous People (ZioBain) Regarding Colombia 3.3. Precautionary Measure No. 860/​17: Indigenous Families of the Chaab’il Ch’och’ Community Regarding Guatemala 3.4. Precautionary Measure No. 1014/​17: U.V.O. Indigenous Girl and Her Family Regarding Mexico 4. Progress and Challenges 5. Concluding Remarks II.4 The Inter-American Human Rights System and Its Impact on the Human Rights of Women: The Issue of Sexual Violence 1. Introduction 2. The IHRL Regulatory Framework for the Investigation of Sexual Violence 3. Inter-​American Standards and Their Role in the Recognition and Condemnation of Sexual Violence 3.1. Recognition of Sexual Violence as a Violation of Human Rights 3.2. The Principle of Enhanced/​Stringent Due Diligence 3.3. The Intersectional Perspective when Approaching the Issue of Sexual Violence 3.4. Gender Stereotypes and Their Impact into the Investigation of Sexual Violence 3.5. Responsibility of the State for Sexual Violence as Torture 4. Concluding Remarks II.5 The Transformative Impact of the Artavia Murillo Case on In Vitro Fertilization 1. Introduction and Brief History of the Case 2. Transformative Impact in the Development of Inter-​American Jurisprudence 2.1. The Interpretation of the Protection of the Right to Life under Article 4.1 of the Convention 2.2. The New Legal Standards Related to Reproductive Rights, Including the Right to Reproductive Autonomy and Its Permissible Limitations 2.3. Impact on the Decisions of Domestic Tribunals in Other Countries of the Region 3. Nationwide and Structural Impact of the Reparations Ordered by the Court 3.1. Training the Judiciary in Reproductive Rights 3.2. The Annulment of the Prohibition of the Practice of IVF in Costa Rica 3.3. The Regulation of IVF and the Implementation of Systems of Inspection and Quality Controls of Its Practice 3.4. The Inclusion of IVF in the State Healthcare System 4. Concluding Remarks II.6 The Impact beyond Compliance of the Case of Azul Rojas Marin: Reflections around Strategic Litigation and the Inter-American Human Rights System 1. Introduction 2. The Case of Azul Rojas Marín and Other v. Peru—​Its Legal Significance 2.1. The Court Found that Arbitrary Detention of LGBTIQ+​ Persons Can Be Inferred When There Are Signs of Discrimination and No Other Apparent Reason for the Detention 2.2. The Court Found that the Purposive Element of the Definition of Torture Incorporates Discrimination Based on Sexual Orientation and Gender Identity 2.3. The Court Found that States Have a Duty to Investigate Violence Motivated by Discrimination against Members of the LGBTIQ+​ Community 2.4. The Court Tackled Structural Discrimination through Reparations 3. The International Protection of LGBTIQ+​ Rights before the Case of Azul 3.1. The European System 3.2. The UN System 3.3. The African System 3.4. The Inter-​American System at the Forefront 3.5. Cross-​Fertilization across Systems 4. Criteria to Assess the Impact of Strategic Litigation 5. The Impact of Azul’s Judgment 5.1. Justice, Truth, and Material Impacts for Azul, Her Mother, and Society 5.2. Legal Impact of the Case in Other Supranational and National Bodies 5.3. The Impact of the Case of Azul on the Community and the LGBTIQ+​ Movement 6. Reflection on the Impact of the Case 7. Concluding Remarks II.7 The Rights of the Child According to the Inter-American Court of Human Rights: A Latin American Translation 1. Introduction 2. The Recognition of the Existence of an International Corpus Juris on the Protection of the Rights of the Child 3. Defining “Child” in International Law: The Impact of the Convention on the Rights of the Child on the Inter-American Court Case Law 4. The Inter-American Court Jurisprudence on the Rights of Children 5. The Right of the Child to Special Protection Measures in Conjunction with the Right to Life 6. The Right of the Child to Special Protection Measures in Relation to Other Rights 7. The Limits and Possibilities of the Inter-​American System for Advancing the Rights of Children II.8 The Riffo-Salinas Case: Human Rights of Older Persons Consolidated in the Inter-American System 1. Introduction 2. Riffo Salinas Case Judgment 3. How Does the ICPHROP Go beyond the Bolivian Case? 3.1. Equality and Nondiscrimination on the Basis of Age and the Right to Personal Freedom 3.2. Rights to Safety, Life, and Health 4. In What Aspects Do the IACHR Court Cases on Older Persons Go Further than the Bolivian Case? 4.1. Right to Life 4.2. Right to Health 4.3. Right to Liberty and Security 5. Social Constructions about Old Age and the Elderly 6. Concluding Remarks II.9 The Standards of the Inter-American Human Rights System regarding Migration and Its Impact on the Region’s States 1. Introduction 2. The Standards of the Inter-​American Human Rights System for Migration Matters 2.1. First Stage: Silence from the Inter-​American Human Rights System 2.2. Second Stage: Initial IAHRS Reactions 2.3. Third Stage: Development and Expansion of Standards 2.4. Pending Issues 3. The Transformative Impact of IAHRS Standards in Latin America: An Analysis in Light of the Legal Frameworks 3.1. The Transformative Impact on the Normative Frameworks on Migration and Asylum in the Region 3.2. The Recognition of the Standards of the IACHR in the Judicial and Constitutional Spheres 4. Concluding Remarks II.10 The Human Right to Defend Human Rights in the Inter-American System: Normative Enforcement and Transformative Impact of the Case of Escaleras Mejía and Others v. Honduras 1. Introduction 2. Human Rights Defenders: Multilevel Approach 2.1. Global System 2.2. Regional Systems 2.3. Domestic Systems 3. IACtHR Jurisprudence on Defenders 3.1. Luna López v. Honduras (IACtHR) 3.2. Kawas Fernández v. Honduras 3.3. Escaleras Mejía v. Honduras 4. The Right to Defend Rights: The Legacy of Escaleras Mejía 4.1. Right to Life (Article 4.1 of the American Convention) 4.2. Right to Freedom of Association (Article 16 of the American Convention) 4.3. Right to Participate in Government (Article 23.1.b of the American Convention) 4.4. Rights to a Fair Trial and to Judicial Protection (Articles 8.1 and 25.1 of the American Convention) 4.5. Right to Humane Treatment (Article 5.1 of the American Convention) 4.6. Right to Freedom of Expression and Right of Assembly (Articles 13 and 15 of the American Convention) 4.7. The Autonomous Right to Defend Rights 5. Concluding Remarks II.11 The Inter-American Human Rights System’s/ICCAL’s Impact on Transitions to Democracy from the Perspective of Transitional Justice 1. Introduction 2. Enabling Transitions to Democracy in Latin America: How to Deal with Past Human Rights Violations from the Perspective of Transitional Justice 3. Inter-American Human Rights Standards within a Multilevel Legal System of Law 4. Impact of the ICCAL/​Inter-​American Human Rights System on Transitions to Democracy 4.1. The Inter-​American Court’s Amnesty Jurisprudence: Standards and “Toolbox” 4.2. Domestic Reception of the IACtHR’s Amnesty Jurisprudence 5. Concluding Remarks II.12 Impact of the Inter-American Human Rights System in the Struggle against Impunity 1. Introduction 2. Some Details on the Scope of the Need to Investigate Serious Violations of Human Rights 2.1. Fraudulent Res Judicata and Admissible Weightings Surrounding the Principle of Ne Bis In Idem 2.2. Cooperative Interstate Obligations Regarding Investigation and Extradition 2.3. Qualification of Conduct as a Crime against Humanity to Determine the Scope of the Obligation to Investigate: Debates 2.4. Abuse of the Law and Other Procedural Irregularities Aimed at Hindering Due Diligence 2.5. Prevalent Formulation of Criminal Definition and Due Diligence 2.6. Due Diligence, Systemic Crimes, and “Transitional” Contexts 2.7. Limitations on the Intervention of the Military Criminal Jurisdiction 2.8. Impulse of Extraordinary International Supervisory Mechanisms 2.9. Due Diligence in the Investigation of Executions and Disappearances 2.10. Pardons for Humanitarian Reasons Should Not Affect the Proportionality of Punishment 3. Transformational Impact 4. Concluding Remarks II.13 The Independence of Justice as a Human Right and an International Obligation in Inter-American Jurisprudence 1. Introduction 2. Human Rights and the International Obligation of Effective Judicial Protection 2.1. The Essential Content of the Right/​Obligation to Protect That Right 2.2. Protection via Independent Judges and Tribunals 3. Facets of the Independence of Judges 3.1. The Process of Selecting and Appointing Judges 3.2. The Political Right of Access to and Permanence in the Office of Judge under Equal Conditions 3.3. Guarantees against External Pressures: The Principle of Irremovability 4. The Stability and Exceptional Nature of Provisional Judges 5. The Exercising of Other Rights by Judges: Freedom of Expression and the Right to Association 6. The Disciplinary System and the System for Removing Judges from Office 7. Brief Reference to Impeachment Proceedings against Judges 8. Some Consequences of the Violation of Judicial Independence 8.1. Full Reparation for Judges: Reinstatement and the Payment of Damages 8.2. Reparation for Parties Subject to Trial 9. Concluding Remarks II.14 Freedom of Expression: Inter-American Standards and Their Transformative Impact 1. Introduction 2. The Creation of ICCAL Regarding Freedom of Expression and the Inter-​American System’s Transformative Mandate 3. Inter-​American Standards within the Multilevel Legal System 3.1. Special Protection of Public Interest Speech: The Rejection of Desacato and Criminal Defamation 3.2. The Right of Access to Information 4. Concluding Remarks II.15 Impact of the IAHRS Principles on Freedom of Expression and the Need for Their Expansion in the Digital Age: Challenges to the IAHRS Principles on Freedom of Expression in the Digital Age 1. Introduction 2. The Inter-​American Legal Framework on Freedom of Expression and Its Impact on the Region’s Legal Systems and Case Law 3. Challenges and Restrictions to the Exercise of Freedom of Expression on the Internet 4. Principles on Freedom of Expression and the Internet Developed by the Inter-​American Human Rights System 4.1. Universal Internet Access, Diversity, and Pluralism 4.2. Principle of Net Neutrality 4.3. Content Blocking and Filtering 4.4. Intermediary Liability 4.5. Subsequent Liability 4.6. Hate Speech and Disinformation 4.7. Cybersecurity, Privacy, and Surveillance 5. Concluding Remarks PART III OPTIMIZING THE IMPACT OF THE INTER-​AMERICAN SYSTEM III.1 Proposals for the Improvement of the Work of the Inter-American Commission on Human Rights 1. Introduction 2. A Robust Inter-​American Human Rights System 3. Strengthening National Capacities 4. Advancing Standards through the Selection of Cases to Remedy Structural Situations 5. Promoting Compliance with the Decisions of the Commission 6. Concluding Remarks III.2 A Broader Look at the Transformative Impact of the Inter-​American Court of Human Rights’ Decisions 1. Introduction 2. Structural Impact of Contention Cases 2.1. General Considerations about Reparations 2.2. Authorization and Access to In Vitro Fertilization—​ Transforming the Hope of Having Children 2.3. Ensuring Effective Recourse—​Transforming Access to Justice for Those Convicted by Councils of War 2.4. Additional Reflections on the Transforming Impact of Contention Cases 3. Consultative Opinions and Their Transformative Impact 3.1. General Considerations 3.2. The Consultative Opinion on Nondiscrimination against LGBTIQ+​ People 4. Provisional Measures: Avoiding Structural Setbacks, Providing Structural Protection 4.1. Archivor Amnesty Bill: Avoiding Structural Retracement 4.2. Immediate Protection and Adoption of Measures to Protect the Lives, Health, and Integrity of Migrants 5. Concluding Remarks III.3 Addressing Conceptual Challenges: Compliance and Impact 1. Introduction 2. Improving Inter-​American Standards: Compliance in Time 3. Why Time Matters 3.1. Legal Outcomes 3.2. The Causes of Compliance 4. Four Metrics of Compliance 5. Compliance with the IACtHR 5.1. Rates of Compliance 5.2. Average Time to Compliance 5.3. Yearly Probability of Compliance 5.4. Expected Time for Compliance 6. The Compliance Life Cycle 7. Concluding Remarks 7.1. Direct Transformative Impact 7.2. Indirect Transformative Impact 7.3. Resistance 7.4. Compliance Backlash III.4 Transformative Impact of the Inter-​American Human Rights System: A Methodology to Think beyond Compliance 1. Introduction 2. Literature Review: Compliance with the Inter-​American Court’s Orders 3. Dynamic Monitoring of Compliance 4. A Methodology for Thinking beyond Compliance 4.1. Accounting for Change over Time 4.2. Improving the “Quality” of Compliance 4.3. Institutional Impact 5. Concluding Remarks III.5 Strategies of the Due Process of Law Foundation for the Promotion of New Standards and Expansion of the Impact of the Inter-American Human Rights System 1. Introduction 2. Impact of the IAHRS, beyond Compliance with Decisions Pertaining to Contentious Cases 3. DPLF’s Strategies for Increasing the Impact of the IAHRS Decisions 4. Specific Strategies for the Development of Standards on the Part of the IAHRS 4.1. Extraterritorial Responsibility of Countries of Origin of Companies Involved in Violations of Human Rights 4.2. Corruption and Human Rights 5. Concluding Remarks III.6 Activism Strategies Involving the Inter-​American System: Reflections for the Field of Action and Perspectives from National Human Rights Organizations 1. Introduction 2. The Inter-​American System as One Piece among More Complex Strategies 3. Toward a Genuine Strengthening of the Regional Protection System 3.1. The Role of Civil Society in Generating Disruptive Tools 3.2. Guardians of Mandate and Jurisdiction 3.3. Broadening the Agenda and Scope 4. Concluding Remarks Conclusion Index The Inter-American System of Human Rights (IASHR) is certainly a source of innovation in human rights law and policy. However, uncertainty reigns over its true legal, political, and social effects as many decisions face serious problems of compliance. To better grasp the System's effects, this book broadens the focus from compliance to impact as the key criterion of effectiveness. Thus, The Impact of the Inter-American Human Rights System : Transformations on the Ground can reveal the IASHR's deep and multifaceted effects, not least by embedding a common law of human rights. Outlining the IASHR's historic path and contemporary practice, this book shows legal, political, and social effects with respect to the main problems that trouble the Americas. Though most of these certainly continue to exist, the System is having a transformative impact on them on the ground, though with huge differences between issues and countries. These achievements as well as the variations should be of interest to academics, judges, and policymakers in Latin America as well as other regions undergoing similar stress, such as Central and Eastern Europe or Africa. The Impact of the Inter-American Human Rights System brings together leading scholars in international and constitutional law, social sciences, and international relations to present a systematic and critical analysis of the impact of the IASHR in the various fields of its activity. These include issues of internal conflicts, transition to democracy, rights of vulnerable groups, social rights, the environment, digital rights, and the accountability of private actors. The book also offers evidence-based proposals to further enhance the transformative impact of the Inter-American System that could be taken up by courts and policymakers at the national, Inter-American, and global levels. This is an open-access title available under the terms of a CC BY-NC-ND 4.0 International license. "The Inter-American System of Human Rights (IASHR) fosters structural transformations in national societies throughout the Americas. This collection of analyses builds upon the studies on Ius Contitutionale Commune en America Latina and Latin American transformative constitutionalism to map out both the ground-level human rights impact of the IASHR and the institutional characteristics that have enabled such transformations. The volume starts with essays framing the concept and context of IASHR impact. Then, it navigates thematic analyses on specific rights and types of violations that are front and center to the protection of human rights in Latin America. The concluding essays explore whether and how it is possible to optimize the actions of the Inter-American System, indicating possible paths to increase positive human rights impact. The editors contend that the IASHR victim-centric approach, community of practice, and openness to institutional reinvention have enabled it to create a virtuous cycle that catalyzes human rights in the Americas, furthering dignity and the Rule of Law throughout the continent"--