The Impact of The Inter American Human Rights System v1

The Impact of the Inter-American Human
Rights System
The Impact of the
Inter-American Human
Rights System
Transformations on the Ground
Edited by
A R M I N VO N B O G DA N DY
F L ÁV IA P IOV E S A N
E D UA R D O F E R R E R M AC - G REGOR
M A R I E L A M O R A L E S A N T O N IA Z Z I
Managing Editor
J U L IA C O RT E Z DA C U N HA C RU Z
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Library of Congress Cataloging-in-Publication Data

Names: Bogdandy, Armin von, 1960- author. | Piovesan, Flávia, author. |
Mac-Gregor, Eduardo Ferrer, author. | Antoniazzi, Mariela Morales, author.
Title: The impact of the Inter-American human rights system :
transformations on the ground / Armin von Bogdandy, Flávia Piovesan,
Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi.
Description: New York : Oxford University Press, 2024. | Includes bibliographical references and index.
Identifiers: LCCN 2023036674 (print) | LCCN 2023036675 (ebook) |
ISBN 9780197744161 (hardback) | ISBN 9780197744178 (epub) |
ISBN 9780197744185 (updf)| ISBN 9780197744192 (digital-online)
Subjects: LCSH: Human rights—Latin America. | International and municipal law—Latin America. |
International law and human rights—Latin America. | Inter-American Court of Human Rights.
Classification: LCC KG574 .B64 2024 (print) | LCC KG574 (ebook) | DDC 341.4/8098—dc23
LC record available at https://lccn.loc.gov/2023036674
LC ebook record available at https://lccn.loc.gov/2023036675
DOI: 10.1093/oso/9780197744161.001.0001
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Contents
List of Contributors xxiii
Introduction 1
Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor,
and Mariela Morales Antoniazzi
PA RT I F R A M I N G T H E I M PAC T O F T H E
I N T E R-A M E R IC A N SYS T E M
I.1 Inducing Compliance as a Transformative Process: The Bright

Side of a Dismal Record 17
Armin von Bogdandy and René Urueña
I.2 Protecting Human Rights in the Americas: The Continuous
Role of the Inter-American Commission on Human Rights 34
Claudio Grossman
I.3 Inter-American Human Rights System: Sociopolitical, Institutional,
and Cultural Dimensions of Its Transformative Impact 49
Mariela Morales Antoniazzi, Flávia Piovesan, and
Júlia Cortez da Cunha Cruz
I.4 Current Issues and Common Challenges for the Protection of
Human Rights in Europe, the Americas, and Africa 76
Rainer Grote
I.5 The Impact of the Inter-American Human Rights System
beyond Latin America 100
Par Engstrom
I.6 Conventionality Control: An Expression of the Basic Elements
of the Judicial Function 122
Miriam Lorena Henríquez Viñas and José Ignacio Núñez Leiva
I.7 Effectiveness of International Courts: From Compliance to
Transformative Impact 138
Gabriela C.B. Navarro
I.8 The Use of Transformative Provisional Measures by the
Inter-American Court of Human Rights: Toward a
Tangible Impact 153
Clara Burbano-Herrera and Yves Haeck
vi Contents
I.9 Transformative Impact: A Framework for Analysis 176

Mayra Ortiz Ocaña and Aníbal Pérez-Liñán
I.10 Creating the Narrative of Human Rights Impact in
Latin America 199
René Urueña and Stephania Yate Cortes
PA RT I I I M PAC T A N D I N T E R- A
M E R IC A N
S TA N DA R D S
II.1 Impact of the Inter-American Jurisprudence on Economic,

Social, Cultural, and Environmental Rights 217
Eduardo Ferrer Mac-Gregor
II.2 The Inter-American Human Rights System’s Impact on the
Protection of the Right to a Healthy Environment 237
Henry Jiménez Guanipa and María Barraco
II.3 Indigenous Rights in the Inter-American System: The Application
of Precautionary Measures from a Culturally Appropriate
Perspective 254
Antonia Urrejola and Elsy Curihuinca Neira
II.4 The Inter-American Human Rights System and Its Impact on the
Human Rights of Women: The Issue of Sexual Violence 268
Julissa Mantilla Falcón
II.5 The Transformative Impact of the Artavia Murillo Case on
In Vitro Fertilization 285
Silvia Serrano Guzmán
II.6 The Impact beyond Compliance of the Case of Azul Rojas Marin:
Reflections around Strategic Litigation and the Inter-American
Human Rights System 303
Chris Esdaile, Clara Sandoval, Alejandra Vicente,
with Renata Politi and Nataly Sanchez
II.7 The Rights of the Child According to the Inter-American Court
of Human Rights: A Latin American Translation 326
Mary Beloff
II.8 The Riffo-Salinas Case: Human Rights of Older Persons
Consolidated in the Inter-American System 348
Aída Díaz-Tendero
Contents vii
II.9 The Standards of the Inter-American Human Rights System

regarding Migration and Its Impact on the Region’s States 366
Elizabeth Salmón and Cécile Blouin
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 388
Melina Girardi Fachin
II.11 The Inter-American Human Rights System’s/ICCAL’s Impact
on Transitions to Democracy from the Perspective of
Transitional Justice 408
Christina Binder
II.12 Impact of the Inter-American Human Rights System in the
Struggle against Impunity 424
Oscar Parra Vera
II.13 The Independence of Justice as a Human Right and an
International Obligation in Inter-American Jurisprudence 449
Carlos Ayala Corao
II.14 Freedom of Expression: Inter-American Standards and Their
Catalina Botero-Marino
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 495
Edison Lanza
PA RT I I I O P T I M I Z I N G T H E I M PAC T O F T H E
III.1 Proposals for the Improvement of the Work of the

Inter-American Commission on Human Rights 521
Joel Hernandez García
III.2 A Broader Look at the Transformative Impact of the
Inter-American Court of Human Rights’ Decisions 537
Pablo Saavedra Alessandri
III.3 Addressing Conceptual Challenges: Compliance and Impact 564
Aníbal Pérez-Liñán, Kelly Morrison, and Luis L. Schenoni
viii Contents
III.4 Transformative Impact of the Inter-American Human Rights

System: A Methodology to Think beyond Compliance 584
Viviana Krsticevic and René Urueña
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 603
Katya Salazar and Daniel Cerqueira
III.6 Activism Strategies Involving the Inter-American
System: Reflections for the Field of Action and Perspectives
from National Human Rights Organizations 625
Gabriela Kletzel
Conclusion 641
Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer
Mac-Gregor, and Mariela Morales Antoniazzi
Index 649
Thematic Overview
List of Contributors xxiii
Introduction 1
Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor,
PA RT I F R A M I N G T H E I M PAC T O F T H E
I.1 Inducing Compliance as a Transformative Process:

The Bright Side of a Dismal Record 17
Armin von Bogdandy and René Urueña
1. Introduction 17
2. Latin American Transformative Constitutionalism 19
3. The Latin American Human Rights Community 22
4. Compliance as a Transformative Practice 26
5. Transformative Constitutionalism beyond Compliance 29
6. Concluding Remarks 32
I.2 Protecting Human Rights in the Americas: The Continuous Role of
the Inter-American Commission on Human Rights 34
Claudio Grossman
1. Introduction 34
2. The Role of the Commission through Its Phases 36
2.1. Phase One: Maintaining a Human Rights Focus among
Dictatorships 36
2.2. Phase Two: Individuals Bring Grievances against Their Nations 37
2.3. Phase Three: Greater Inclusion and Participation in the Political
System 39
3. Challenges for the Commission in Executing Its Functions 44
I.3 Inter-American Human Rights System: Sociopolitical,
Institutional, and Cultural Dimensions of Its Transformative Impact 49
Mariela Morales Antoniazzi, Flávia Piovesan, and Júlia Cortez da
Cunha Cruz
1. Introduction 49
2. WHY Do We Need the Inter-American System? 50
2.1. Structural Challenges 50
2.2. Contemporary Challenges 53
2.3. The Aggravation of Challenges in Times of Crisis 57
x THEMATIC OVERVIEW
3. WHAT Are the Key Components of the

Inter-American System? 62
3.1. The Victim-Centric Approach 63
3.2. Inter-American Standards 63
3.3. Comprehensive Reparations 64
4. How Can One Understand IAHRS Transformative Impact,
Taking into Account Its Sociopolitical, Institutional, and Cultural
Dimensions? 65
4.1. Institutional Dimension 67
4.2. Sociopolitical Dimension 70
4.3. Cultural Dimension 71
I.4 Current Issues and Common Challenges for the Protection of
Human Rights in Europe, the Americas, and Africa 76
Rainer Grote
1. Introduction 76
2. The Expansion of Regional Human Rights Protection after the
End of the Cold War 77
2.1. Institutionalization 78
2.2. Judicialization 80
2.3. Diversification of Remedial Practice 82
2.4. Embeddedness 86
3. The Backlash against the Increasing Scope and Intrusiveness of
Regional Human Rights Jurisprudence 87
3.1. Withdrawal from the Regional Human Rights System 88
3.2. Institutional Reform 91
3.3. Noncompliance with Individual Decisions 94
4. Responses to the Backlash 96
5. The Road Ahead 98
I.5 The Impact of the Inter-American Human Rights System
beyond Latin America 100
Par Engstrom
1. Introduction 100
2. The IAHRS and the Origins of Global Human Rights Governance 101
3. The IAHRS and International Human Rights Standards 105
4. The IAHRS and Transnationalized Human Rights Implementation 111
5. Human Rights Futures: A World of Regions and Experimental
Governance 118
I.6 Conventionality Control: An Expression of the Basic
Elements of the Judicial Function 122
Miriam Lorena Henríquez Viñas and José Ignacio Núñez Leiva
1. Introduction 122
2. Methodology 124
3. The Meaning of Conventionality Control 125
THEMATIC OVERVIEW xi
4. The Difference between Adjudication and Execution in

Conventionality Control 129
5. The Role of Res Judicata and Res Interpretata 131
6. Conclusion 136
I.7 Effectiveness of International Courts: From Compliance to
Gabriela C.B. Navarro
1. Introduction 138
2. Effectiveness as Compliance 139
2.1. Defining and Measuring Compliance 139
2.2. Evaluating Compliance with IACtHR Decisions 141
3. Impact beyond Compliance 143
3.1. Defining Impact and Effectiveness 143
3.2. The Effectiveness of the IACtHR 147
4. Illustrating Effectiveness: The Case of Indigenous
Territorial Rights 148
I.8 The Use of Transformative Provisional Measures by
the Inter-American Court of Human Rights:
Toward a Tangible Impact 153
Clara Burbano-Herrera and Yves Haeck
1. Introduction 153
2. Human Rights Standards Applicable to Persons Deprived
of Their Liberty in Latin America 155
3. Legal Basis of Provisional Measures in the Inter-American
4. Transformative Provisional Measures: Toward a Material Impact 161
5. Detention Conditions of Persons Deprived of Their Liberty
in Latin America through the Lens of Transformative
Provisional Measures 163
6. Case Study: Criminal Institute of Plácido de Sá Carvalho v. Brazil 167
I.9 Transformative Impact: A Framework for Analysis 176
Mayra Ortiz Ocaña and Aníbal Pérez-Liñán
1. Introduction 176
2. What Is Impact? 177
3. The Transformative Sequence: From Instruments to Outcomes 180
3.1. Time Zero: The System’s Instruments 180
3.2. First Stage: Appropriation 185
3.3. Second Stage: Institutional Response 187
3.4. Third Stage: Transformations on the Ground 190
4. Strategies to Document Impact 192
xii THEMATIC OVERVIEW
I.10 Creating the Narrative of Human Rights Impact in Latin America 199
René Urueña and Stephania Yate Cortes
1. Introduction 199
2. Communities of Practice and Narratives of Human Rights Impact 200
3. Creating Narratives: Cognitive Categories and Framing 201
3.1. Description through Cognitive Categories 202
3.2. Framing the Narrative of the Impact 204
4. Narratives of Impact in Practice 207
4.1. Deployment of Cognitive Categories to Define the Problem 208
4.2. Diagnosis of Causes 210
4.3. Definition of Remedies 211
4.4. The Narrative of the Impact 212
5. Conclusion 214
PA RT I I I M PAC T A N D I N T E R- A
M E R IC A N
S TA N DA R D S
II.1 Impact of the Inter-American Jurisprudence on Economic, Social,

Cultural, and Environmental Rights 217
Eduardo Ferrer Mac-Gregor
1. Introduction 217
2. The Protection of ESCER through Civil and Political Rights 218
2.1. Indirect Justiciability of Cases in Which a Violation of
Article 26 Was Alleged 220
2.2. Indirect Justiciability in Cases Relating to Groups in a Position
of Vulnerability 221
2.3 Cases Subject to the “Rereading” of ESCER from 1999 to 2017 223
3. Direct Justiciability via the Protocol of San Salvador 225
4. The New Model of Direct Justiciability 226
4.1. A Chronicle of ESCER’s Direct Justiciability through Article 26 226
4.2. The Case of Lagos del Campo Approach 227
II.2 The Inter-American Human Rights System’s Impact on
the Protection of the Right to a Healthy Environment 237
Henry Jiménez Guanipa and Maria Barraco
1. Introduction 237
2. The Protection of Environmental Human Rights in the
Inter-American Human Rights System 240
2.1. The Protection of the Right to a Healthy Environment 245
2.2. The Right to a Healthy Environment and Indigenous
Communities 246
2.3. The Right to Access Information Concerning and to
Participate in Environmental Matters 248
3. Transformative Impact: Recognition of Environmental Human
Rights at the Domestic Level 249
THEMATIC OVERVIEW xiii
II.3 Indigenous Rights in the Inter-American System:

The Application of Precautionary Measures from a
Culturally Appropriate Perspective 254
Antonia Urrejola and Elsy Curihuinca Neira
1. Introduction 254
2. Inter-American Human Rights System and General Standards
Regarding Indigenous Peoples 256
2.1. The Right to a Cultural Identity 257
2.2. The Right to the Lands, Territories, and Resources of
Indigenous Peoples 257
2.3. Participatory Rights of Indigenous Peoples 259
3. MPMs and Cultural Pertinence 260
3.1. Precautionary Measure No. 113/16: “Tres Islas” Native
Community of Madre de Dios Regarding Peru 261
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 262
3.3. Precautionary Measure No. 860/17: Indigenous Families of the
Chaab’il Ch’och’ Community Regarding Guatemala 263
3.4. Precautionary Measure No. 1014/17: U.V.O. Indigenous Girl
and Her Family Regarding Mexico 264
4. Progress and Challenges 264
II.4 The Inter-American Human Rights System and Its Impact on
the Human Rights of Women: The Issue of Sexual Violence 268
Julissa Mantilla Falcón
1. Introduction 268
2. The IHRL Regulatory Framework for the Investigation
of Sexual Violence 268
3. Inter-American Standards and Their Role in the Recognition
and Condemnation of Sexual Violence 272
3.1. Recognition of Sexual Violence as a Violation of Human Rights 272
3.2. The Principle of Enhanced/Stringent Due Diligence 275
3.3. The Intersectional Perspective when Approaching the Issue of
Sexual Violence 277
3.4. Gender Stereotypes and Their Impact into the Investigation of
Sexual Violence 280
3.5. Responsibility of the State for Sexual Violence as Torture 282
II.5 The Transformative Impact of the Artavia Murillo Case
on In Vitro Fertilization 285
Silvia Serrano Guzmán
1. Introduction and Brief History of the Case 285
2. Transformative Impact in the Development of Inter-American
Jurisprudence 287
xiv THEMATIC OVERVIEW
2.1. The Interpretation of the Protection of the Right to Life under

Article 4.1 of the Convention 287
2.2. The New Legal Standards Related to Reproductive Rights, Including
the Right to Reproductive Autonomy and Its Permissible Limitations 292
2.3. Impact on the Decisions of Domestic Tribunals in Other
Countries of the Region 294
3. Nationwide and Structural Impact of the Reparations Ordered by
the Court 295
3.1. Training the Judiciary in Reproductive Rights 296
3.2. The Annulment of the Prohibition of the Practice of IVF in
Costa Rica 297
3.3. The Regulation of IVF and the Implementation of Systems of
Inspection and Quality Controls of Its Practice 300
3.4. The Inclusion of IVF in the State Healthcare System 301
II.6 The Impact beyond Compliance of the Case of Azul Rojas Marin:
Reflections around Strategic Litigation and the Inter-American
Chris Esdaile, Clara Sandoval, Alejandra Vicente, with
Renata Politi and Nataly Sanchez
1. Introduction 303
2. The Case of Azul Rojas Marín and Other v. Peru—Its Legal Significance 305
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 306
2.2. The Court Found that the Purposive Element of the Definition
of Torture Incorporates Discrimination Based on Sexual
Orientation and Gender Identity 307
2.3. The Court Found that States Have a Duty to Investigate
Violence Motivated by Discrimination against Members of
the LGBTIQ+Community 308
2.4. The Court Tackled Structural Discrimination through Reparations 309
3. The International Protection of LGBTIQ+Rights before the Case of Azul 310
3.1. The European System 311
3.2. The UN System 312
3.3. The African System 314
3.4. The Inter-American System at the Forefront 314
3.5. Cross-Fertilization across Systems 316
4. Criteria to Assess the Impact of Strategic Litigation 317
5. The Impact of Azul’s Judgment 319
5.1. Justice, Truth, and Material Impacts for Azul, Her Mother, and Society 320
5.2. Legal Impact of the Case in Other Supranational and National Bodies 321
5.3. The Impact of the Case of Azul on the Community and the
LGBTIQ+Movement 322
6. Reflection on the Impact of the Case 324
THEMATIC OVERVIEW xv
II.7 The Rights of the Child According to the Inter-American Court

of Human Rights: A Latin American Translation 326
Mary Beloff
1. Introduction 326
2. The Recognition of the Existence of an International Corpus
Juris on the Protection of the Rights of the Child 328
3. Defining “Child” in International Law: The Impact of the
Convention on the Rights of the Child on the Inter-American
Court Case Law 330
4. The Inter-American Court Jurisprudence on the Rights of Children 332
4.1. Inter-American Court Advisory Opinions Related to Child Rights 333
4.2. Provisional Measures Regarding Children outside the
Framework of a Contentious Case 333
4.3. The Inter-American Court Case Law Regarding the Rights
of Children (ACHR Article 19) 334
5. The Right of the Child to Special Protection Measures in
Conjunction with the Right to Life 337
6. The Right of the Child to Special Protection Measures in
Relation to Other Rights 341
7. The Limits and Possibilities of the Inter-American System
for Advancing the Rights of Children 343
II.8 The Riffo-Salinas Case: Human Rights of Older Persons
Consolidated in the Inter-American System 348
Aída Díaz-Tendero
1. Introduction 348
2. Riffo Salinas Case Judgment 351
3. How Does the ICPHROP Go beyond the Bolivian Case? 354
3.1. Equality and Nondiscrimination on the Basis of Age and
the Right to Personal Freedom 355
3.2. Rights to Safety, Life, and Health 356
4. In What Aspects Do the IACHR Court Cases on Older
Persons Go Further than the Bolivian Case? 358
4.1. Right to Life 358
4.2. Right to Health 359
4.3. Right to Liberty and Security 360
5. Social Constructions about Old Age and the Elderly 361
II.9 The Standards of the Inter-American Human Rights System
regarding Migration and Its Impact on the Region’s States 366
Elizabeth Salmón and Cécile Blouin
1. Introduction 366
2. The Standards of the Inter-American Human Rights System for
Migration Matters 367
2.1. First Stage: Silence from the Inter-American Human Rights
System 368
2.2. Second Stage: Initial IAHRS Reactions 369
xvi THEMATIC OVERVIEW
2.3. Third Stage: Development and Expansion of Standards 372

2.4. Pending Issues 377
3. The Transformative Impact of IAHRS Standards in Latin
America: An Analysis in Light of the Legal Frameworks 378
3.1. The Transformative Impact on the Normative Frameworks on
Migration and Asylum in the Region 378
3.2. The Recognition of the Standards of the IACHR in the Judicial
and Constitutional Spheres 384
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 388
Melina Girardi Fachin
1. Introduction 388
2. Human Rights Defenders: Multilevel Approach 390
2.1. Global System 391
2.2. Regional Systems 393
2.3. Domestic Systems 394
3. IACtHR Jurisprudence on Defenders 396
3.1. Luna López v. Honduras (IACtHR) 398
3.2. Kawas Fernández v. Honduras 398
3.3. Escaleras Mejía v. Honduras 399
4. The Right to Defend Rights: The Legacy of Escaleras Mejía 401
4.1. Right to Life (Article 4.1 of the American Convention) 402
4.2. Right to Freedom of Association (Article 16 of the American
Convention) 403
4.3. Right to Participate in Government (Article 23.1.b of the
American Convention) 403
4.4. Rights to a Fair Trial and to Judicial Protection (Articles
8.1 and 25.1 of the American Convention) 404
4.5. Right to Humane Treatment (Article 5.1 of the American
Convention) 404
4.6. Right to Freedom of Expression and Right of Assembly
(Articles 13 and 15 of the American Convention) 404
4.7. The Autonomous Right to Defend Rights 405
II.11 The Inter-American Human Rights System’s/ICCAL’s
Impact on Transitions to Democracy from the Perspective of
Transitional Justice 408
Christina Binder
1. Introduction 408
2. Enabling Transitions to Democracy in Latin America: How
to Deal with Past Human Rights Violations from the Perspective
of Transitional Justice 409
3. Inter-American Human Rights Standards within a Multilevel
Legal System of Law 411
THEMATIC OVERVIEW xvii
4. Impact of the ICCAL/Inter-American Human Rights System

on Transitions to Democracy 412
4.1. The Inter-American Court’s Amnesty Jurisprudence:
Standards and “Toolbox” 412
4.2. Domestic Reception of the IACtHR’s Amnesty Jurisprudence 419
II.12 Impact of the Inter-American Human Rights System
in the Struggle against Impunity 424
Oscar Parra Vera
1. Introduction 424
2. Some Details on the Scope of the Need to Investigate Serious
Violations of Human Rights 426
2.1. Fraudulent Res Judicata and Admissible Weightings
Surrounding the Principle of Ne Bis In Idem 426
2.2. Cooperative Interstate Obligations Regarding Investigation
and Extradition 428
2.3. Qualification of Conduct as a Crime against Humanity to
Determine the Scope of the Obligation to Investigate: Debates 431
2.4. Abuse of the Law and Other Procedural Irregularities
Aimed at Hindering Due Diligence 432
2.5. Prevalent Formulation of Criminal Definition and
Due Diligence 433
2.6. Due Diligence, Systemic Crimes, and “Transitional” Contexts 434
2.7. Limitations on the Intervention of the Military Criminal
Jurisdiction 439
2.8. Impulse of Extraordinary International Supervisory
Mechanisms 439
2.9. Due Diligence in the Investigation of Executions and
Disappearances 441
2.10. Pardons for Humanitarian Reasons Should Not Affect the
Proportionality of Punishment 442
3. Transformational Impact 443
II.13 The Independence of Justice as a Human Right and an
International Obligation in Inter-American Jurisprudence 449
Carlos Ayala Corao
1. Introduction 449
2. Human Rights and the International Obligation of Effective
Judicial Protection 450
2.1. The Essential Content of the Right/Obligation to Protect
That Right 450
2.2. Protection via Independent Judges and Tribunals 451
3. Facets of the Independence of Judges 453
3.1. The Process of Selecting and Appointing Judges 453
xviii THEMATIC OVERVIEW
3.2. The Political Right of Access to and Permanence in the

Office of Judge under Equal Conditions 454
3.3. Guarantees against External Pressures: The Principle of
Irremovability 456
4. The Stability and Exceptional Nature of Provisional Judges 458
5. The Exercising of Other Rights by Judges: Freedom of Expression
and the Right to Association 459
6. The Disciplinary System and the System for Removing Judges
from Office 462
7. Brief Reference to Impeachment Proceedings against Judges 465
8. Some Consequences of the Violation of Judicial Independence 467
8.1. Full Reparation for Judges: Reinstatement and the Payment of
Damages 468
8.2. Reparation for Parties Subject to Trial 470
II.14 Freedom of Expression: Inter-American Standards and
Their Transformative Impact 473
Catalina Botero-Marino
1. Introduction 473
2. The Creation of ICCAL Regarding Freedom of Expression
and the Inter-American System’s Transformative Mandate 474
3. Inter-American Standards within the Multilevel Legal System 477
3.1. Special Protection of Public Interest Speech: The Rejection of
Desacato and Criminal Defamation 479
3.2. The Right of Access to Information 485
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 495
Edison Lanza
1. Introduction 495
2. The Inter-American Legal Framework on Freedom of Expression
and Its Impact on the Region’s Legal Systems and Case Law 497
3. Challenges and Restrictions to the Exercise of Freedom of
Expression on the Internet 501
4. Principles on Freedom of Expression and the Internet Developed
by the Inter-American Human Rights System 503
4.1. Universal Internet Access, Diversity, and Pluralism 504
4.2. Principle of Net Neutrality 506
4.3. Content Blocking and Filtering 509
4.4. Intermediary Liability 510
4.5. Subsequent Liability 511
4.6. Hate Speech and Disinformation 512
4.7. Cybersecurity, Privacy, and Surveillance 514
THEMATIC OVERVIEW xix
PA RT I I I O P T I M I Z I N G T H E I M PAC T O F T H E
III.1 Proposals for the Improvement of the Work of the Inter-American

Commission on Human Rights 521
Joel Hernandez García
1. Introduction 521
2. A Robust Inter-American Human Rights System 522
3. Strengthening National Capacities 525
4. Advancing Standards through the Selection of Cases to
Remedy Structural Situations 530
5. Promoting Compliance with the Decisions of the Commission 532
III.2 A Broader Look at the Transformative Impact of the Inter-
American Court of Human Rights’ Decisions 537
Pablo Saavedra Alessandri
1. Introduction 537
2. Structural Impact of Contention Cases 539
2.1. General Considerations about Reparations 539
2.2. Authorization and Access to In Vitro Fertilization—
Transforming the Hope of Having Children 541
2.3. Ensuring Effective Recourse—Transforming Access to
Justice for Those Convicted by Councils of War 544
2.4. Additional Reflections on the Transforming Impact of
Contention Cases 547
3. Consultative Opinions and Their Transformative Impact 548
3.1. General Considerations 548
3.2. The Consultative Opinion on Nondiscrimination against
LGBTIQ+People 550
4. Provisional Measures: Avoiding Structural Setbacks, Providing
Structural Protection 556
4.1. Archivor Amnesty Bill: Avoiding Structural Retracement 557
4.2. Immediate Protection and Adoption of Measures to Protect
the Lives, Health, and Integrity of Migrants 560
III.3 Addressing Conceptual Challenges: Compliance and Impact 564
Aníbal Pérez-Liñán, Kelly Morrison, and Luis L. Schenoni
1. Introduction 564
2. Improving Inter-American Standards: Compliance in Time 567
3. Why Time Matters 568
3.1. Legal Outcomes 568
3.2. The Causes of Compliance 569
4. Four Metrics of Compliance 569
xx THEMATIC OVERVIEW
5. Compliance with the IACtHR 571

5.1. Rates of Compliance 574
5.2. Average Time to Compliance 575
5.3. Yearly Probability of Compliance 577
5.4. Expected Time for Compliance 577
6. The Compliance Life Cycle 578
7.1. Direct Transformative Impact 581
7.2. Indirect Transformative Impact 581
7.3. Resistance 582
7.4. Compliance Backlash 582
III.4 Transformative Impact of the Inter-American Human Rights
System: A Methodology to Think beyond Compliance 584
Viviana Krsticevic and René Urueña
1. Introduction 584
2. Literature Review: Compliance with the Inter-American
Court’s Orders 585
3. Dynamic Monitoring of Compliance 590
4. A Methodology for Thinking beyond Compliance 595
4.1. Accounting for Change over Time 595
4.2. Improving the “Quality” of Compliance 596
4.3. Institutional Impact 600
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 603
Katya Salazar and Daniel Cerqueira
1. Introduction 603
2. Impact of the IAHRS, beyond Compliance with Decisions
Pertaining to Contentious Cases 604
3. DPLF’s Strategies for Increasing the Impact of the IAHRS
Decisions 611
4. Specific Strategies for the Development of Standards on the
Part of the IAHRS 614
4.1. Extraterritorial Responsibility of Countries of Origin of
Companies Involved in Violations of Human Rights 614
4.2. Corruption and Human Rights 619
III.6 Activism Strategies Involving the Inter-American
System: Reflections for the Field of Action and Perspectives
from National Human Rights Organizations 625
Gabriela Kletzel
1. Introduction 625
2. The Inter-American System as One Piece among More
Complex Strategies 626
THEMATIC OVERVIEW xxi
3. Toward a Genuine Strengthening of the Regional

Protection System 631
3.1. The Role of Civil Society in Generating Disruptive Tools 632
3.2. Guardians of Mandate and Jurisdiction 635
3.3. Broadening the Agenda and Scope 638
Conclusion 641
Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer
Mac-Gregor, and Mariela Morales Antoniazzi
Index 649
List of Contributors
Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public
Law and International Law in Heidelberg and Professor of Public Law at the University of
Frankfurt/Main. He has been president of the OECD Nuclear Energy Tribunal as well as
a member of the German Science Council and the Scientific Committee of the European
Union Agency for Fundamental Rights. He has held visiting positions at the New York
University School of Law, the European University Institute, the Xiamen Academy of
International Law, and the National Autonomous University of Mexico, among others.
Armin von Bogdandy is the recipient of the Leibniz Prize; the prize for outstanding
scientific achievements in the field of legal and economic foundations by the Berlin-
Brandenburg Academy of Sciences; the Premio Internacional Fix-Zamudio; and the gavel
of the Inter-American Court of Human Rights. His research focuses on structural devel-
opment in public law.
Flávia Piovesan is a Professor of Constitutional Law and Human Rights at the Pontifical
Catholic University of São Paulo (PUC-SP). She was a human rights visiting fellow at the
Human Rights Program at Harvard Law School in 1995 and 2000; a fellow at the Centre
for Brazilian Studies, at the University of Oxford in 2005; and has been a visiting fellow
at the Max Planck Institute for Comparative Public Law and International Law on nu-
merous occasions. From 2009 to 2014, she was at the Institute as a Humboldt Foundation
Georg Forster Research Fellow. She was also a Visiting Scholar at the David Rockefeller
Center for Latin American Studies at Harvard University (DRLCAS) in 2018. Flavia
Piovesan is a former member of the UN High Level Task Force on the implementation
of the right to development and of the OAS Working Group working on the monitoring
of the Protocol of San Salvador on social, economic, and cultural rights. In 2016, she was
appointed Special Secretary for Human Rights in Brazil and President of the National
Commission against Forced Labor. She was a Vice President and a Commissioner for the
Inter-American Commission on Human Rights. She was the recipient of the Humboldt
Georg Foster Research Award in 2022.
Eduardo Ferrer Mac-Gregor is judge of the Inter-American Court of Human Rights, as

well as Professor at the National Autonomous University of Mexico and researcher at the
Legal Research Institute of that university. He studied law at the Autonomous University
of Baja California obtained his PhD in law from the University of Navarra. He is director
of the Iberoamerican Journal of Procedural Constitutional Law (Revista Iberoamericana
de Derecho Procesal Constitucional). Eduardo Ferrer Mac-Gregor has acted as visiting
professor and/or lecturer at multiple universities and research centers in Europe, the
United States, and Latin America, including Paris-Sorbonne University (Panthéon París
1) and the Max Planck Institute for Comparative Public Law and International Law.
xxiv List of Contributors
Mariela Morales Antoniazzi is a senior research fellow at the Max Planck Institute for
Comparative Public Law and International Law in Heidelberg. She studied law at Andrés
Bello Catholic University, obtained her LLM at the University of Heidelberg, and earned
her PhD at the University of Frankfurt/Main. Her doctoral thesis focuses on the suprana-
tional protection of democracy in South America and the Ius Constitutionale Commune.
Mariela Morales Antoniazzi is a visiting professor at various Latin American universities
and Vice President of the German section of the Iberoamerican Institute of Constitutional
Law. She coordinates the Ius Constitutionale Commune en América Latina (ICCAL)
project at the Max Planck Institute for Comparative Public Law and International Law.
Pablo Saavedra Alessandri is the Executive Secretary at the Inter-American Court of

Human Rights. He has also worked as an attorney at the Inter-American Commission
on Human Rights and at the National Corporation on Reparation and Reconciliation of
Chile. He graduated from Universidad Diego Portales and obtained his master’s degree in
Law from the University of Notre Dame.
María Barraco is a former lawyer at the Argentine Human Trafficking Prosecutor’s Office
and visiting researcher at the Max Planck Institute for Comparative Public Law and
International Law. She holds a law degree from the University of Buenos Aires and an
LLM in Human Rights from Queen Mary University of London.
Mary Beloff received her law degree and a PhD from the University of Buenos Aires
where she is Professor of Criminal Law and Criminal Procedure. She also holds a Master
of Laws (LLM) from Harvard Law School. She is currently a member of the Committee on
the Rights of the Child (2023–2027).
Christina Binder holds the Chair for International Law and Human Rights Law at the
Bundeswehr University Munich. Previously, she was a Professor at the University of
Vienna. She is member of the Executive Board and Vice President of the European Society
of International Law.
Cécile Blouin is a Senior Researcher at the Instituto de Democracia y Derechos Humanos

and a Professor at Pontificia Universidad Católica del Perú. She holds a degree in Law and
Political Science from the University of Versailles Saint-Quentin-en Yvelines and a master’s
degree from Universidad Carlos III de Madrid.
Catalina Botero-Marino is the Dean of the law school at Universidad de los Andes and a
founding partner of NGO DeJusticia. She served as the Special Rapporteur for Freedom
of Expression for the Inter-American Commission on Human Rights, as well as Auxiliary
Magistrate at the Constitutional Court of Colombia.
Clara Burbano-Herrera is Professor of International Human Rights Law and Director of

the Programme for Studies on Human Rights in Context at the Ghent University Human
Rights Centre. She has been awarded the Dutch Prince Bernhard Price for Innovative
Research and holds a PhD in Law (Ghent University).
List of Contributors xxv
Daniel Cerqueira is a Senior Program Officer at the Due Process of Law Foundation.
He holds a master’s degree from Georgetown University, a master’s degree from the
Universitá degli Studi di Genova, a law degree from the Universidade Federal de Minas
Gerais, and a bachelor’s degree in International Relations from the Pontifícia Universidade
Católica de Minas Gerais.
Carlos Ayala Corao is a Professor and Head of the Constitutional Law Department at
Universidad Católica Andrés Bello in Caracas. He is the former President of the Inter-
American Commission on Human Rights and is also a Vice President of the International
Commission of Jurists.
Stephania Yate Cortes is a PhD candidate at Universidad de los Andes, Colombia.
Júlia Cortez da Cunha Cruz holds a Master of Laws degree from Harvard Law School
and a Master of International Law degree from Universidade de Sao Paulo. She has worked
at the United Nations, the Organization of American States, and Brazilian human rights
nongovernmental organizations.
Aída Díaz-Tendero is a Professor at Universidad Nacional Autónoma de México (UNAM).

She holds a master’s degree in Latin American Studies, as well as a doctorate from the
Universidad Complutense de Madrid. She also holds a postdoctoral degree from the
Colegio de la Frontera Norte de México.
Par Engstrom is Senior Lecturer in Human Rights at the Institute of the Americas,
University College London. He was also a faculty member at the Paris School of
International Affairs, at Sciences-Po. Dr. Engstrom holds a DPhil in International
Relations from Oxford University.
Chris Esdaile is legal advisor at the human rights organization REDRESS. He studied law
at Birmingham University (LLB) and has an LLM in International Human Rights Law
from Queen Mary University of London.
Melina Girardi Fachin is a Professor at Universidade Federal do Parana. She holds a

PhD in Constitutional Law and a master’s degree in Human Rights, both from Pontificia
Universidade Catolica de Sao Paulo. She has also been a visiting researcher at Harvard Law
School.
Julissa Mantilla Falcón has been elected a Commissioner at the Inter- American
Commission on Human Rights (2020–2023). She is an adjunct Professor at the American
University Washington College of Law, as well as a Professor at Pontificia Universidad
Católica del Perú. She was an investigator in cases of sexual violence for the Truth and
Reconciliation Commission of Peru.
Joel Hernandez García is a Commissioner of the Inter-American Commission on Human

Rights. He holds a law degree from the Universidad Nacional Autónoma de Mexico and
a master’s degree in International Law from New York University. He is a member of the
xxvi List of Contributors
Board of Trustees of the UN Interregional Crime and Justice Research Institute and was a
member of the Inter-American Juridical Committee.
Claudio Grossman is Professor of Law, Dean Emeritus, and the Raymond Geraldson
Scholar for International and Humanitarian Law at American University Washington
College of Law, where he served as dean from 1995 to July 2016. He was also a member
and President of the Inter-American Commission on Human Rights.
Rainer Grote is a senior research fellow at the Max Planck Institute for Comparative
Public Law and International Law in Heidelberg. He holds a Master of Laws from the
University of Edinburgh and a Doctoral degree from the University of Goettingen. His
doctoral thesis was awarded the European Group of Public Law Thesis Prize.
Henry Jiménez Guanipa is a Venezuelan lawyer with over twenty years of experience in
the energy industry, including power, natural gas, renewables, and energy conservation.
He holds an LLB from University Santa Maria, an LLM from the University of Heidelberg
2001, and a PhD from Ruhr University Bochum 2010.
Silvia Serrano Guzmán is the Associate Director of the Healthy Families Initiative
at Georgetown University. She holds a law degree from Universidad Autónoma de
Bucaramanga, Colombia, a Master of Laws degree from Georgetown University, and a
master’s degree in Legal Argumentation from the University of Alicante.
Yves Haeck is Professor of International Human Rights Law and Director of the
Programme for Studies on Human Rights in Context at the Ghent University Human
Rights Centre. He is a PhD (Ghent University, 2007), Master, and Bachelor in Law (Ghent
University, 1992).
Miriam Lorena Henriquez Viñas is the Dean at the Universidad Alberto Hurtado Law
School, where she is also a Professor of Constitutional Law and Political Theory. She is a
Doctor in Juridical Sciences (Universidad de Santiago de Compostela) and holds a master’s
degree in Public Law (Pontificia Universidad Católica de Chile).
Gabriela Kletzel is a lawyer specialized in international human rights law (Universidad de

Buenos Aires) with a master’s degree in law from New York University (NYU). She is the
director of international work at the NGO CELS (Centro de Estudios Legales y Sociales).
Viviana Krsticevic is the Executive Director of the Center for Justice and International
Law (CEJIL). Ms. Krsticevic received her law degree from Universidad de Buenos Aires,
a master’s degree in Latin American Studies from Stanford University, and an LLM from
Harvard University. She is also a Professor at the American University Washington
College of Law, where she teaches a course on litigation and activism.
Edison Lanza is the Special Rapporteur for Freedom of Expression of the Inter-American
Commission on Human Rights. A Uruguayan lawyer, he graduated from the Faculty of
Law of the Universidad de la República. He is also a PhD candidate at the Faculty of Social
Sciences of the Universidad de Buenos Aires.
List of Contributors xxvii
Kelly Morrison is a PhD student in Political Science at the University of Pittsburgh, with
specializations in International Relations and Comparative Politics and a regional focus
on Latin America. She graduated from Lee University with degrees in Political Science
and Spanish.
Gabriela C.B. Navarro is an Assistant Professor at the Federal University of Lavras

(Brazil). She obtained her PhD at Goethe University and her master’s degree at the Federal
University of Santa Catarina. She has researched in the fields of Indigenous rights and ef-
fectiveness of international courts.
Elsy Curihuinca Neira is a lawyer and holds a Bachelor of Laws degree from the Catholic
University of Temuco, Chile. She has been a specialist for the Rapporteurship on the
Rights of Indigenous Peoples at the Inter-American Commission on Human Rights.
José Ignacio Núñez Leiva is the Director of the Public Law Department at the University
of Chile. He holds a master’s degree in Public Law from the Pontificia Universidad Católica
de Chile and a Doctor of Law degree from Universidad Castilla La Mancha.
Mayra Ortiz Ocaña is a doctoral student in Political Science and a member of the
Reparations Design and Compliance Lab at the University of Notre Dame.
Aníbal Pérez-Liñán is Director of the Kellogg Institute for International Studies at the
University of Notre Dame and a Co-Principal Investigator of the Reparations Design and
Compliance Lab.
Renata Politi is Legal Officer at REDRESS.
Katya Salazar is the Executive Director of the Due Process of Law Foundation. Before
joining DPLF, she was the Adjunct Coordinator of the Special Investigations Unit of
the Truth and Reconciliation Commission of Peru. She has a master’s degree from the
University of Heidelberg and a bachelor’s degree from Pontificia Universidad Católica
del Perú.
Elizabeth Salmón is a Professor at Pontificia Universidad Católica del Perú. She holds
a PhD in International Law from Universidad de Sevilla. Professor Salmón is currently
Director of the Instituto de Democracia y Derechos Humanos, a member of the UN Human
Rights Council Advisory Committee, and a Consulting Expert of the Colombian Special
Jurisdiction for Peace.
Nataly Sanchez holds a Master of Laws from University of Essex.
Luis L. Schenoni is a research fellow at the Kellogg Institute for International Studies and
a PhD student in Political Science at the University of Notre Dame. He holds an MSc in
International Studies from the Torcuato Di Tella University and a BA in International
Relations Catholic University of Argentina.
Antonia Urrejola is a Commissioner at the Inter-American Commission on Human

Rights. She holds a law degree from the Universidad de Chile and a postgraduate degree
xxviii List of Contributors
in Human Rights and Transitional Justice. She has been a human rights advisor to the
Chilean Presidency and a principal advisor to the OAS Secretary General.
René Urueña is a Professor and the Director of Investigations at Universidad de los

Andes in Bogotá. He received his LLM (laudatur) and his Doctor of Law (eximia cum
laude) from the University of Helsinki in Finland. He coordinates with the Max Planck
Institute for Comparative Public Law and International Law the program on ius commune
and international economic law, as well as the program on ius commune and the right to
development.
Oscar Parra Vera is a Judge in the Special Jurisdiction for Peace in Colombia. He
holds a master’s degree in Criminal Justice from the University of Oxford and a Master
of Laws degree from Universidad Nacional de Colombia. He was a senior lawyer at the
Inter-American Court of Human Rights, as well as a consultant in the Inter-American
Commission on Human Rights.
Alejandra Vicente is Head of Law at the human rights organization REDRESS and the
former Legal Director at the Center for Justice and International Law. She holds an ad-
vanced degree in Conflict Resolution from the University of Zaragoza and an LLM in
International Law and the Law of International Organisations from the University of
Groningen.
Introduction
By Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor,
1. The Inter-American System, Ius Constitutionale

Commune, and the Focus on Impact
As legal scholars of and practitioners in the Inter-American Human Rights

System (IAHRS), we have witnessed the emergence and growth of a robust trans-
national regime dedicated to the protection and advancement of human dig-
nity in Latin America. This system is composed of domestic and international
norms that interact to respect, protect, and fulfill human rights in the region.
The IAHRS’s main institutions are the Inter-American Commission on Human
Rights (Inter-American Commission, or IACHR) and the Inter-American Court
of Human Rights (Inter-American Court, or IACtHR), although domestic
institutions dedicated to the human rights—in particular national courts, but
also prosecutors or ombudspersons—are also crucial to the system’s functioning.
The interaction between domestic and international institutions has generated
a regional corpus iuris in the field of human rights. Importantly, this system’s
operation relies not only on public institutions, but also on private actors, such
as civil society organizations, lawyers, and academics. Their work has shaped
human rights law in the Americas and has expanded its reach. One of our main
concerns is to ensure that individuals, and in particular victims, have access to
international institutions. Another concern, this book’s very focus, is that IAHRS
has a transformative impact on the rights of as many individuals as possible. To
this end, the IAHRS is responsive to the context in which it operates, a context
shaped by socioeconomic inequality, institutional instability, and the historic ex-
perience of authoritarianism, military dictatorship, and armed conflicts.
We have conceptualized this phenomenon as common Latin American con-
stitutional law, or Ius Constitutionale Commune en América Latina (ICCAL).
ICCAL has analytical, normative, and academic dimensions.1 First, ICCAL
1 We analyze these dimensions in more detail in Armin von Bogdandy et al., Ius Constitutionale
Commune en América Latina: A Regional Approach to Transformative Constitutionalism (2016)

MPIL Research Paper Series, No. 2016-21.
Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Introduction
In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan,
Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press.
© Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi 2024.
DOI: 10.1093/oso/9780197744161.003.0001
2 Armin von Bogdandy et al.
frames, and thereby creates, a specific subject of legal analysis, that is, a spe-
cific legal phenomenon that originates from interacting norms and institu-
tional practices of various legal orders, united by their goal of bringing human
rights to the social realities of Latin America. Second, as a normative concept,
ICCAL provides a theoretically based justification of that goal as a specific, Latin
American variant of transformative constitutionalism. Third, in terms of legal
practices, ICCAL constitutes a working platform for the various actors who form
the community of practice of human rights.2 This is a broad community that
extends beyond advocacy groups to include, for example, lawyers who defend
their States before inter-American institutions.
ICCAL is a specific Latin American approach to transformative constitution-
alism with distinctive characteristics.3 The Latin American approach is, above all,
unique because it is a regional phenomenon, as opposed to the country-specific
approaches in South Africa and India, the two other main instances of transform-
ative constitutionalism. As such, the Latin American approach has two specific
dimensions. First, it integrates domestic and international law through many
types of interaction. Second, it includes dense, horizontal interactions between
the domestic legal orders in the region. At the heart of all these interactions lies
the interpretation and application of inter-American standards and related do-
mestic constitutional standards.4 Additionally, the legal phenomenon identified
by ICCAL is characterized by its continuous development.
Although ICCAL is distinctly Latin American, the phenomenon has
implications beyond the region. ICCAL highlights Latin American contributions
to constitutionalism as a global phenomenon, especially in the areas of vio-
lence; institutional instability and inequality; and economic, social, and cultural
rights. Moreover, in a context where it is increasingly clear that power structures
favoring the Global North did not vanish with the end of the colonial period,5
2 Armin von Bogdandy and René Urueña, “International Transformative Constitutionalism in
Latin America” [2020] 114 AJIL 403.

3 For an introduction to this concept, see Daniel Bonilla Maldonado (ed.), Constitutionalism of the
Global South: The Activist Tribunals of India, South Africa, and Colombia (Fordham University School
of Law; Universidad de los Andes 2013); Philipp Dann, Michael Riegner, and Maxim Bönnemann
(eds.), The Global South and Comparative Constitutional Law (Oxford University Press 2020).
4 Viviana Krsticevic, “El derecho común transformador: el impacto del diálogo del sistema
interamericano de derechos humanos con las víctimas en la consecución de justicia,” in Armin von
Bogdandy et al. (coords.), Cumplimiento e impacto de las sentencias de la Corte Interamericana y el
Tribunal Europeo de Derechos Humanos. Transformando realidades (MPIL; Instituto de Estudios
Constitucionales del Estado de Querétaro; IIJ; UANM 2019); Clara Burbano Herrera and Yves
Haeck, “The Historical and Present-Day Role of Non-Governmental Organisations before the Inter-
American Human Rights System in Documenting Serious Human Rights Violations and Protecting
Human Rights and the Rule of Law Through Ensuring Accountability” [2021] 17 Utrecht Law
Review 8.
5 See, e.g., Philipp Dann and Felix Hanschmann, “Post-Colonial Theories and Law” [2012] 45 Law
and Politics in Africa, Asia and Latin America 123.

Introduction 3
ICCAL seeks to include voices from the Global South in the international con-
versation about the role and functions of public law. It also sheds light on how the
human rights framework may be used to modify the structures of dominance that
are embedded in traditional legal thinking. Additionally, due to Latin America’s
struggles with weak institutions and authoritarian governments, ICCAL might
help to identify strategies for addressing the emergence of these challenges in
other parts of the world.
In our 2017 volume Transformative Constitutionalism in Latin America: The
Emergence of a New Ius Commune,”6 we brought together a group of scholars
to present ICCAL to the English-speaking world. We acknowledge that voices
critical to the ICCAL framework have helped us to refine our approach, as this
volume will show.7 Along these lines, this book will focus on ICCAL’s impact on
the ground in terms of transformative constitutionalism. This seems all the more
important as Latin America continues to struggle against inequality, violence,
and weak rule of law8 and new difficulties have emerged, including a backlash
against human rights and the rise to power of new leaders who threaten hard-
fought achievements in human rights. Derogations from treaties might also
signal the weakening of some States’ commitment to human rights.9
6 Armin von Bogdandy et al., (eds.), Transformative Constitutionalism in Latin America: The
Emergence of a New Ius Commune (Oxford University Press 2017).

7 Alberto Coddou Mc Manus, “A critical account of Ius Constitutionale Commune in Latin
America: An intellectual map of contemporary Latin American constitutionalism” [2021] 11

Global Constitutionalism 110; for a mapping, see Juan C. Herrera, “La idea de un Derecho común
en América Latina a la luz de sus críticas teóricas” [2020] MPIL Research Paper No. 2020–26; Ana
Micaela Alterio and Francisca Pou Giménez, “Book Review: Transformative Constitutionalism in
Latin America” (2018), <https://blog-iacl-aidc.org/blog/2018/10/21/book-review-transformative-
constitutionalism-in-latin-america> (accessed February 5, 2022).
8 Our Spanish language publications on these issues include Armin von Bogdandy, Por un derecho
común para América Latina: Cómo fortalecer las democracias frágiles y desiguales (Siglo XXI Editores
2020); Armin von Bogdandy et al. (coords.), Cumplimiento e impacto de las sentencias de la Corte
Interamericana y el Tribunal Europeo de Derechos Humanos. Transformando realidades (Instituto de
Estudios Constitucionales del Estado de Querétaro 2019); Armin von Bogdandy and René Urueña,
“International Transformative Constitutionalism in Latin America” [2020] 114 American Journal of
International Law 403; Armin von Bogdandy, “El mandato transformador del sistema interamericano
de derechos humanos. Legalidad y legitimidad de un proceso jurisgenerativo extraordinario” [2019]
9 Revista del Centro de Estudios Constitucionales 113; Armin von Bogdandy, Jesús María Casal
Hernández, and Mariela Morales Antoniazzi, “La resistencia del Estado democrático de Derecho
en América Latina frente a la pandemia de COVID-19. Un enfoque desde el ius commune” [2020]
MPIL Research Paper No. 2020-35; Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, and
Rogelio Ángel Flores Pantoja (coords.), Inclusión, Ius Commune y justiciabilidad de los DESCA en la
jurisprudencia interamericana. El caso Lagos del Campo y los nuevos desafíos (Instituto de Estudios
Constitucionales del Estado de Querétaro 2018); Armin von Bogdandy, Mariela Morales Antoniazzi,
and Franz Christian Ebert, “Human Rights versus Economic Law—The Case of Latin America,” in
Max Planck Society (ed.), Highlights from the Yearbook 2019 of the Max Planck Society (2020).
9 Laurence R. Helfer, “Rethinking Derogations from Human Rights Treaties” [2021] 115 American
Journal of International Law 20.

2. Moving toward Transformative Impact
The effectiveness of international human rights law has become the subject of heated
debate among scholars. Some critics assert that there is a lack of evidence that human
rights have led to relevant improvements in State behavior.10 Proponents of interna-
tional law and human rights question the adequacy of the empirical measures em-
ployed by critics11 and assert that human rights law, institutions, and movements
can be shown to have an impact beyond compliance,12 an approach adopted in
this book. Certainly, scholars should consider both the successes and the failures
of human rights13 and are right that human rights will not always be an appropriate
or adequate means of addressing modern challenges.14 This, however, is no reason
to abandon the project. In the words of Anne Peters, human rights remain “a neces-
sary and indeed indispensable legal instrument for protecting weak and vulnerable
members of a society.”15 Moreover, they are key to constitutional democracy.
Analyses of effectiveness specific to the IAHRS have focused on the low rates
of compliance with IAHRS decisions.16 That the rates of compliance are low is
10 See, e.g., Eric A. Posner and Alan O. Sykes, Economic Foundations of International Law,
(Harvard University Press 2013), 207–208; Eric A. Posner, The Twilight of Human Rights Law (Oxford
University Press 2014), 69–78.
11 See, e.g., Robert Howse and Ruti G. Teitel, “Beyond Compliance: Rethinking Why International
Law Really Matters” [2010] 1 Global Policy 127; Benedict Kingsbury, “The Concept of Compliance
as a Function of Competing Conceptions of International Law” [1998] 19 Michigan Journal of
International Law 345.
12 See, e.g., Kathryn Sikkink, Evidence for Hope: Making Human Rights Work in the 21st Century
(Princeton University Press 2017); Wayne Sandholtz, Expanding Rights: Norm Innovation in the
European and Inter-American Courts of Human Rights. Expanding Human Rights: 21st Century
Norms and Gov Cheltenham (Edward Elgar 2017).
13 See, e.g., Makau Mutua, “Is the Age of Human Rights Over?,” in Sophia A. McClennen and
Alexandra Schultheis Moore (eds.), The Routledge Companion to Literature and Human Rights
(Routledge 2015), 450.
14 Samuel Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press 2018).
15 Anne Peters, “The Importance of Having Rights” [2021] 81 Heidelberg Journal of
16 See Juana Inés Acosta López and Diana Bravo Rubio, “El cumplimiento de los fines de reparación
integral de las medidas ordenadas por la Corte Interamericana de Derechos Humanos: énfasis en la
experiencia colombiana” [2008] 13 Revista Colombiana de Derecho Internacional 323; Sergio Iván
Anzola, Beatriz Eugenia Sánchez, and René Urueña, Después del fallo: el cumplimiento de las decisiones
del Sistema Interamericano de Derechos Humanos. Una propuesta de metodologiá (Universidad de
los Andes; Documentos Justicia Global 2015); Cecilia M. Bailliet, “Measuring Compliance with
the Inter-American Court of Human Rights: The Ongoing Challenge of Judicial Independence in
Latin America” [2013] 31 NJHR 477; Fernando Basch et al., “The Effectiveness of the Inter-American
System of Human Rights Protection: A Quantitative Approach to Its Functioning and Compliance
with Its Decisions” [2010] 7 Sur 9; Helio Bicudo, “Cumplimiento de las sentencias de la Corte
Interamericana de Derechos Humanos y de las recomendaciones de la Comisión Interamericana
de Derechos Humanos,” in Antônio Augusto Cançado Trindade (ed.), El Sistema Interamericano de
Protección de los Derechos Humanos en el umbral del siglo XXI (UNAM 2001), 229; James Cavallaro
and Stephanie Erin Brewer, “Reevaluating Regional Human Rights Litigation in the Twenty-First
Century: The Case of the Inter-American Court” [2008] 102 American Journal of International Law
768; Elisa Mara Coimbra, “Inter-American System of Human Rights: Challenges to Compliance
with the Court’s Decisions in Brazil” [2013] 10 Sur 57; Vittorio Corasaniti, “Implementación de las
Introduction 5
a sound and valuable observation. The Inter-American Commission itself has

acknowledged that the States’ lack of compliance with IAHRS decisions is a
continuing challenge.17 However, an exclusive focus on compliance, analyzed
quantitatively, could lead to the erroneous conclusion that the IAHRS is of
marginal legal, social, and political importance.18 Yet, compliance is insuffi-
cient to achieve a full and nuanced understanding of the IAHRS’s relevance and
impact.19
With this volume, we aim to intervene in the debate about the relevance of inter-
national human rights in general and the IAHRS in particular by presenting a crit-
ical, contextualized, and systematic analysis of the IAHRS’s transformative impact
in the Americas. We adopt ICCAL as our conceptual framework and the centrality
of the victim as our guiding principle. In doing so, we prove that the IAHRS’s legal,
political, and social relevance is far greater than the current literature suggests. We
also indicate how that relevance might be increased in the years to come.
The core concept of our book is impact. We do not deny that compliance
with the judgments of the IACtHR and with the IACHR’s recommendations is
an important indicator of the IAHRS’s relevance. Indeed, one of the chapters
in this volume suggests methods to improve measurements of compliance.20
Nevertheless, we treat compliance as only one of several factors to consider when
assessing the legal, social, and political relevance of the IAHRS.
We expand the notion of impact along three dimensions. First, we in-
clude as the subject of our analyses all tools of the IAHRS that might serve its
sentencias y resoluciones de la Corte Interamericana de Derechos Humanos: un debate necesario”

[2009] 49 Revista IIDH 13; Damian A. Gonzalez-Salzberg, “Do States comply with the compulsory
judgments of the Inter-American Court of Human Rights? An empirical study of compliance with
330 measures of reparation” [2013] 13 Revista do Instituto Brasileiro de Direitos Humanos 93; Damián
A. González-Salzberg, “The Implementation of Decisions from the Inter-American Court of Human
Rights in Argentina: An Analysis of the Jurisprudential Swings of the Supreme Court” [2011] 8 Sur
113; Darren Hawkins and Wade Jacoby, “Partial Compliance: A Comparison of the European and
Inter-American Courts of Human Rights” [2010] 6 Journal of International Law & International
Relations 35; Alexandra Huneeus, “Courts Resisting Courts: Lessons from the Inter-American
Court’s Struggle to Enforce Human Rights” [2011] 44 Cornell International Law Journal 493; César
Rodríguez Garavito and Celeste Kauffman, “De las órdenes a la práctica: análisis y estrategias para el
cumplimiento de las decisiones del sistema interamericano de derechos humanos,” in Maia Camilo
Barreto et al. (eds.), Desafíos del sistema interamericano de derechos humanos. Nuevos tiempos, viejos
retos (Colección DeJusticia 2015), 276.
17 Inter-American Commission on Human Rights, “Strategic Plan 2011–2015,” 59, <https://www.
oas.org/en/iachr/docs/pdf/iachrstrategicplan20112015.pdf> (accessed February 5, 2022).

18 See Viviana Krsticevic and René Urueña’s contribution to this volume.
19 See, e.g., Clara Sandoval, “Two steps forward, one step back: Reflections on the jurisprudential
turn of the Inter-American Court of Human Rights on domestic reparation programmes” [2018]
22 The International Journal of Human Rights 1192; Par Engstrom (ed.), The Inter-American Human
Rights System: Impact Beyond Compliance (Palgave Macmillan 2019).
20 Aníbal Pérez-Liñán, Kelly Morrison, and Luis L. Schenoni’s contribution to this volume.
transformative mandate.21 These tools encompass not only the processing of in-
dividual petitions and the issuance of judgments and recommendations in these
cases but also the adoption of precautionary and provisional measures, the is-
suance of advisory opinions, the elaboration and publication of thematic and
country reports, the convening of public hearings, and more. The IACtHR and,
especially, the IACHR have a range of tools at their disposal. The decisions they
issue in response to individual petitions, although undoubtedly important to
their work, should not be viewed in isolation from their other activities. An as-
sessment of the IAHRS’s relevance that ignores its work outside of the individual
petition system is markedly incomplete.
Second, we consider a wider range of actors than is reflected in compliance
studies. Compliance studies mostly focus on the institution of the IAHRS issuing
the decision and the State implementing, or failing to implement, the decision.
To achieve a more accurate and nuanced picture of how the IAHRS’s decisions—
and other IAHRS activities— lead to change on the ground, we highlight
the interactions of the IAHRS with a community composed not only of State
governments and international and regional human rights institutions but also
of victims, their lawyers, civil society organizations, and academic institutions,
as well as various State institutions with their broad spectrum of mandates,
interests, and practices. This broader community of practice is key to moving be-
yond compliance and toward a better understanding of transformative impact.22
Third, we argue that State compliance with a specific decision is not the only
outcome the IAHRS seeks to achieve. Since its mandate is to transform the sit-
uation of human rights in the Americas, it aims not only to ensure that States
remedy past violations of human rights but also to develop and consolidate
human rights standards, to increase the capacity of civil society and States to re-
spect, protect, and fulfill such standards, and to deepen transnational conversa-
tion and cooperation. Effectiveness and relevance thus become a question not
only of States’ implementation of specific IAHRS decisions but also of the extent
to which inter-American standards have permeated education, culture, and pol-
itics, facilitating dialogue about and expansion of human rights in the Americas
and beyond.
Fundamental to our understanding of the intended outcomes of the IAHRS’s
efforts is the concept of transformation. In line with the arguments ad-
vanced in our prior volume,23 as well as in some of our independent scholarly
21 On the transformative mandate of the IAHRS, see Armin von Bogdandy and René Urueña,
“International Transformative Constitutionalism in Latin America” [2020] 114 American Journal of

22 See Armin von Bogdandy and René Urueña’s contribution to this volume.
23 Armin von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America: The

Introduction 7
undertakings,24 we see the IAHRS as seeking not only to remedy individual

wrongs but also to transform the social fabric, combatting oppressive structures
in public and private institutions. For example, the IAHRS orders struc-
tural reforms in law, policy, and culture (generally classified as guarantees of
nonrepetition), so that human rights will become deeply embedded in the do-
mestic order. The IAHRS thus serves as a tool that like-minded domestic actors
can use to effectuate systemic improvements in the human rights situation of the
region, and enables inter-American standards to reach a far greater number of
people than can directly gain individual access to inter-American institutions.
An important element of this transformative approach is the concept of
substantive equality, which has recently been gaining ground in the Inter-
American Court.25 In the case of Employees of the Fireworks Factory of Santo
Antônio de Jesus and their families v. Brazil, for example, the IACtHR built on
its prior jurisprudence regarding the right to equality and nondiscrimination26
by consolidating the notion that the States’ obligation to ensure substantive
equality includes a duty to actively combat situations of structural exclusion and
marginalization.27 The Court determined that States must adopt measures “to
correct existing inequalities, to promote the inclusion and participation of his-
torically marginalized groups, and to guarantee to disadvantaged individuals or
groups the effective enjoyment of their rights.”28 Here, the IACtHR interprets the
American Convention on Human Rights (American Convention, or ACHR) as
requiring States to counteract structural inequalities, opening the door to fur-
ther systemic transformations.
3. Guide to the Chapters
This volume maps, analyzes, and develops the key aspects of the IAHRS. The
contributions span a wide range of perspectives, as the authors have diverse
24 Armin von Bogdandy, “The Transformative Mandate of the Inter-American System,” in Armin
von Bogdandy et al. (coords.), Cumplimiento e impacto de las sentencias de la Corte Interamericana
y el Tribunal Europeo de Derechos Humanos. Transformando realidades (MPIL; Instituto de
Estudios Constitucionales del Estado de Querétaro; IIJ; UANM 2019); Flávia Piovesan, “Sistema
Interamericano de Direitos Humanos, Impacto transformador, díalogos jurisdicionais e os desafios
da reforma” [2014] 3 Revista Direitos Emergentes na Sociedade Global 76.
25 Case of the Employees of the Fireworks Factory of Santo Antônio de Jesus and their families
v. Brazil [2020] IACtHR, Ser. C No. 407; Case of Members of the Miskitu Indigenous Peoples of the
North Caribbean Coast regarding Nicaragua [2021] IACtHR.
26 Case of the Employees of the Fireworks Factory of Santo Antônio de Jesus and their families v. Brazil
[2020] IACtHR, Separate Opinion of Judge Eduardo Ferrer Mac-Gregor. Judgment of July 15, 2020.
Ser. C No. 407, paras. 83–96.
27 Case of the Employees of the Fireworks Factory of Santo Antônio de Jesus and their families v.
Brazil [2020] IACtHR, Ser. C No. 407, para. 199.

28 Ibid.
backgrounds in academia, civil society, and State and human rights governance.
The authors also approach the debate about the impact of the IAHRS through the
lens of several disciplines, including constitutional law, international law, inter-
national relations, and some social sciences. The contributions often focus on a
specific issue or country, but always refer back to ICCAL, the common analytical
framework of this book. Additional recent cases are available in the database of
the Inter-American Court of Human Rights.29
The book is organized in three parts. Part I situates the book’s focus on im-
pact within the ICCAL’s general framework. It explores the history and theory of
ICCAL, framing impact as central to understanding the IAHRS. It also situates
the discussion on ICCAL within international human rights law in general,
analyzing the IAHRS’s impact beyond Latin America and discussing common
challenges for the protection of human rights across regions.
Part II discusses specific inter- American standards. The contributions
contained in this part span the main issue-areas that the IACtHR and the
IACHR have addressed throughout their history. It includes analyses of the
IAHRS’s impact in the context of Latin America’s dictatorial past, most notably
in the chapters on transitional justice and judicial independence. This part also
discusses issues that have recently gained attention within inter-American ju-
risprudence, such as the rights of people in situations of vulnerability and social
rights. With an eye to the future, Part II also includes emerging topics like private
accountability, the environment, and digital rights.
Part III looks even further ahead as the authors make evidence-based proposals
for enhancing the impact of the IAHRS. It begins with recommendations on how
to maximize the impact of the IAHRS, as well as on how to assess such impact.
Part III then explores strategies that are already in use by three civil society or-
ganizations with extensive experience engaging with the IACHR and IACtHR,
but that could be adopted more widely.
The individual contributions in Part I, “Framing the Impact of the Inter-
American System,” begin with the contribution of Armin von Bogdandy and
René Urueña (Chapter I.1), who “explore[] the apparent paradox between the
dismal record of compliance with Inter-American Court decisions and the cen-
tral role that this Court plays in controversies in the Americas as states, victims,
and civil society continue to ask it for judgments.” Von Bogdandy and Urueña
argue that compliance is too limited a measure to account for the transforma-
tive effects of the IACtHR’s judgments and encourage us to consider among the
IACtHR’s most important contributions its reframing of important sociopolit-
ical conflicts as human rights issues and its fostering of a community of practice
around these issues.
29 https://jurisprudencia.corteidh.or.cr/
Introduction 9
Claudio Grossman’s contribution (Chapter I.2) turns to the IACHR, con-

sidering the impact it has had on human rights practices in the Americas over
the course of its existence. Grossman highlights the ways in which the IACHR
has adapted its approach to focus on the activities that will be most useful in
a given historical moment (e.g., fact-finding and denunciations in an era of
dictatorships, individual petitions in an era of democratization). Given the cur-
rent range of regimes and their accompanying challenges, he suggests that the
IACHR requires full use of the tools at its disposal to promote and protect human
rights effectively today.
The chapter by Mariela Morales Antoniazzi, Flávia Piovesan, and Júlia Cortez
da Cunha Cruz (Chapter I.3) is structured around three key questions: (1) why do
we need the IAHRS; (2) what are the key structuring components of the IAHRS;
and (3) how can the IAHRS’s transformative impact be understood. In answering
these questions, the authors contextualize and holistically analyze the IAHRS’s
impact, identifying three constitutive elements of this impact: institutional, soci-
opolitical, and cultural. Ultimately, they argue that the IAHRS “reflects a regional
substantive commitment to human rights norms and standards that works as a
complementary tool to national mechanisms and therefrom derives its emanci-
patory role and impact.”
Rainer Grote’s chapter (Chapter I.4) describes the development of the
institutions, standards, and practices of the European, African, and inter-
American human rights systems as well as the pushback and even backlash that
these systems have faced. The core question Grote addresses in this chapter is
“how the resilience of regional human rights institutions can be strengthened in
an increasingly adverse environment.”
Par Engstrom’s input (Chapter I.5) explores the impact of the IAHRS on the
theory and practice of global human rights governance. Engstrom highlights the
IAHRS’s institutional development, standard-setting, and operation to argue not
only that the IAHRS has had a central role in global human rights governance
but also that the IAHRS’s innovative approaches to and resilience in the face of
noncompliance have “the potential to offer human rights scholarship and advo-
cacy significant insights into how human rights may continue to matter even in
adverse political circumstances.”
Miriam Lorena Henríquez Viñas and José Ignacio Núñez Leiva’s contribu-
tion (Chapter I.6) offers a theory of conventionality control, an IACtHR doctrine
establishing that the ACHR imposes an obligation on all public officials in States
parties to the Convention to harmonize their interpretation of domestic law with
the ACHR as well as with the IACtHR’s interpretation of the ACHR.30 Henríquez
30 Laurence Burgorgue-
Larsen, “Conventionality Control: Inter-American Court of Human
Rights (IACtHR),” in Anne Peters (ed.), Max Planck Encyclopedias of International Law (Oxford
Viñas and Núñez Leiva argue that, to understand the full impact of convention-
ality control, it is necessary not only to examine an individual State’s compliance
with a specific IACtHR judgment against it but also to analyze the role of con-
ventionality control in requiring all States to anticipate and thereby to prevent
human rights violations.
Gabriela C.B. Navarro’s chapter (Chapter I.7) considers the effectiveness of
international courts. Navarro argues that studies of effectiveness have shifted
away from a narrow focus on compliance by expanding to assess these courts’
contributions in setting standards, promoting democracy, and empowering
domestic social movements. She illustrates this broader notion of effectiveness
using inter-American jurisprudence on the territorial rights of indigenous peo-
ples and ethnic minorities as an example.
Clara Burbano-Herrera and Yves Haeck’s input (Chapter I.8) assesses the
transformative impact of the IACtHR’s provisional measures, with a focus on de-
tention. In this context, Burbano-Herrera and Haeck introduce the term “trans-
formative provisional measures,” which they characterize as “(i) [ . . . ] target[ing]
structural problems; (ii) [ . . . ] aim[ing] to protect several persons in situations
of extreme gravity and urgency; and (iii) [ . . . ] contain[ing] orders that must be
complied with by more than one State organ.”
Mayra Ortiz Ocaña and Aníbal Pérez-Liñán address the doctrine-void re-
garding the definition of impact. Their chapter (Chapter I.9) puts forward “a
framework to conceptualize and measure the effects of the IAHRS,” proposing a
three-stage process that enables the identification of actors and outcomes. They
also discuss empirical approaches to documenting and analyzing the effects of
the IAHRS.
René Urueña and Stephania Yate Cortes further develop the discussion on the
concept of impact, proposing the adoption of a mindset focused on narrative.
In their contribution (Chapter I.10) they argue that impact is a “continuously
evolving description of reality,” bridging facts and their normative interpretation.
Part II, “Impact and Inter-American Standards,” begins with Eduardo Ferrer
Mac-Gregor’s chapter (Chapter II.1), which addresses the development of ec-
onomic, social, cultural, and environmental rights in the IAHRS. Ferrer Mac-
Gregor highlights the transformative impact that these standards have in Latin
America and asserts that the IAHRS’s jurisprudence is even more essential today
due to contemporary challenges in the region.
Henry Jiménez Guanipa and María Barraco’s article (Chapter II.2) concerns
the right to a healthy environment. Jiménez Guanipa and Barraco examine
the development of inter-American standards in this area and describe the
University Press 2018) <https://opil.ouplaw.com/view/10.1093/law-mpeipro/e3634.013.3634/law-

mpeipro-e3634> (accessed February 5, 2022).
Introduction 11
incorporation of these norms into domestic jurisprudence. They argue that

there is an emerging ius commune in the field of environmental human rights
that stems from this multilevel jurisprudential dialogue and results in minimum
standards of protection across the region.
Antonia Urrejola and Elsy Curihuinca Neira’s input (Chapter II.3) reviews
the IAHRS’s standards on Indigenous rights through the lens of precautionary
measures granted by the IACHR. In addition to reviewing the inter-American
approach to territorial rights, cultural identity, and participation, Urrejola
and Curihuinca Neira assess the effectiveness of precautionary measures in
protecting the rights of indigenous peoples to life and physical integrity.
Julissa Mantilla Falcón’s contribution (Chapter II.4) reviews the contributions
of the IAHRS to the definition of the term sexual violence as well as to the inves-
tigation of it. Mantilla Falcón discusses the most relevant developments in the
IAHRS’s approach to sexual violence and highlights their transformative impact
on prevention, investigation, and punishment in sexual violence cases. She spe-
cifically highlights the IAHRS’s treatment of State responsibility, its analyses of
intersectionality and gender stereotyping, and its determination that sexual vio-
lence can constitute torture.
Silvia Serrano Guzmán’s chapter (Chapter II.5) analyzes the many impacts
of the IACtHR’s judgment in the case of Artavia Murillo et al. (“In Vitro
Fertilization”) v. Costa Rica. Serrano Guzmán argues that this case not only
addressed the claims of individual victims but also developed inter-American
standards on the right to life and reproductive rights, triggered structural re-
form in Costa Rica, and served as the basis for the decisions of domestic courts
in other countries. She also observes that, when monitoring Costa Rica’s com-
pliance with the judgment in this case, the IACtHR issued an unprecedented
holding that could be used when States attempt to impede the implementation of
structural reparations in the future.
The chapter by Chris Esdaile, Clara Sandoval, Alejandra Vicente, Renata
Politi, and Nataly Sanchez (Chapter II.6) concerns the case of Azul Rojas Marín
v. Peru. They explain the path leading to the decision as well as the significance of
the case as a means of advancing the protection of the rights to human treatment,
personal liberty, reparation, and access to justice for the LGBTIQ+community
in the Americas and beyond. They discuss both the impact this case has had thus
far and the potential impact it might have in the future.
Mary Beloff ’s input (Chapter II.7) examines the impact of the Convention
on the Rights of the Child on the IAHRS, revealing the interdependence of in-
ternational and regional human rights systems in this area. Beloff also observes
that the IACtHR can be effective in cases brought in the interest of broad,
structural change, but that child victims as individuals often require quicker
relief than the IAHRS’s individual petition system can provide. With this in
mind, she suggests that greater use should be made of precautionary and pro-
visional measures.
Aída Díaz- Tendero’s contribution (Chapter II.8) assesses the impact of
the IAHRS’s standards on the rights of older persons, as reflected in the Inter-
American Convention on Protecting the Human Rights of Older Persons as
well as in the IACtHR’s jurisprudence, on a judgment of the Plurinational
Constitutional Court of Bolivia. Díaz-Tendero argues that this case is evidence of
the impact of the IAHRS because it illustrates the convergence of domestic and
inter-American legal norms in the direction of a more respectful treatment of the
rights of older persons.
Elizabeth Salmón and Cécile Blouin’s chapter (Chapter II.9) analyzes the
progress of the IAHRS in protecting and guaranteeing the rights of migrants and
considers the impact that the IAHRS has had in this area. Salmón and Blouin
argue that the IACHR has played a crucial role both in developing human rights
standards on migration in general and in responding to specific instances in
which migrants’ rights have been violated. They also note that States’ receptive-
ness of and contributions to the IAHRS’s work could generate transformative
impacts in this area.
Melina Girardi Fachin’s chapter (Chapter II.10) concerns human rights
defenders. Fachin reviews the development and scope of the right to defend
rights not only in the IAHRS but also at the State and international levels. She
then analyzes the case of Escaleras Mejía v. Honduras, emphasizing both the
structural challenges that endanger human rights defenders and the standards
applied by the Inter-American Court.
Christina Binder’s input (Chapter II.11) discusses the impact of the IACtHR’s
jurisprudence on transitional justice in Argentina, Chile, Peru, and Uruguay.
Binder observes that the IACtHR’s cases finding that amnesty laws violated the
ACHR facilitated transitional justice by operating directly on domestic law,
thus alleviating pressure on an executive or legislature to act, and in others by
legitimizing a domestic judiciary’s decision. She also suggests that the most im-
portant, transformative, and lasting impact of the IAHRS in the context of tran-
sitional justice has been its strengthening of domestic institutions, particularly
domestic courts.
Oscar Parra Vera’s contribution (Chapter II.12) analyzes the development of
the IACtHR’s jurisprudence on access to justice and its transformative impact
on the struggle against impunity in the Americas. Parra Vera observes that, in
cases concerning access to justice, there is a particular need for the IACtHR to
cooperate with and, indeed, to strengthen the domestic institutions that cause
the initial violations of rights.
Carlos Ayala Corao’s chapter (Chapter II.13) provides an overview of the
IAHRS’s approach to judicial independence. Ayala Corao emphasizes the
Introduction 13
connection between the right of every person to access to justice, which includes
the right to be tried before independent and impartial judges, and the proce-
dural guarantees that enable judges to exercise their functions without undue ex-
ternal pressures. He also discusses the reparations that the IACtHR has granted
to remedy State violations of the right to judicial independence.
Catalina Botero-Marino’s chapter (Chapter II.14) assesses the transforma-
tive impact of the IAHRS’s standards on freedom of expression. Botero-Marino
argues that some of these standards either have become or have the potential
to become part of the structural transformation of public law in the region of
Latin America (ICCAL). Botero-Marino also emphasizes that inter-American
standards on freedom of expression have developed through exchange between
international and domestic mechanisms.
Edison Lanza’s input (Chapter II.15) focuses on the right to freedom of ex-
pression in the digital age. Lanza flags that, although the IAHRS has begun to
adapt its standards in the face of new technologies, more needs to be done to ad-
dress the challenges these technologies present.
Part III, “Optimizing the Impact of the Inter-American System,” begins with
Joel Hernández García’s contribution (Chapter III.1) providing an overview of
the impact of the IACHR as well as proposals for increasing the IACHR’s effec-
tiveness. Hernández García generally emphasizes the need to cooperate with
States and more specifically suggests that the Inter-American Commission to
“(i) strengthen [ . . . ] national capacities; (ii) advanc[e]‌standards through the
selection of cases to remedy structural situations and (iii) promot[e] compliance
of the decisions of the Commission.”
Pablo Saavedra Alessandri’s chapter (Chapter III.2) focuses on the trans-
formative impact of the IACtHR’s advisory opinions and structural measures.
Saavedra Alessandri argues that, to understand and assess the effectiveness of the
Inter-American Court, it is insufficient to consider only contentious cases.
Aníbal Pérez-Liñán, Kelly Morrison, and Luis L. Schenoni’s chapter (Chapter
III.3) proposes that time be factored into measurements of compliance with the
IAHRS’s decisions to improve assessments of legal outcomes and to account for
State behavior. Specifically, the authors introduce new metrics that can be used
to measure compliance: the yearly probability of a State complying with a Court’s
decision and the expected duration of the implementation. They assert that these
metrics provide a more reliable and perhaps even more optimistic picture of the
impact of the IAHRS.
Viviana Krsticevic and René Urueña’s input (Chapter III.4) rejects compli-
ance as a monolithically defined analytical category, seeking instead to extend
the scope of compliance analysis. Krsticevic and Urueña argue that institutions
would be able to increase compliance with international norms if their insti-
tutional design and practice considers their wider impact. They suggest that
the wider impact of an international order and compliance with that order are
linked: compliance with an international order is facilitated by the wider impact
of the decision, which feeds into its compliance processes.
Katya Salazar and Daniel Cerqueira’s contribution (Chapter III.5) presents the
Due Process of Law Foundation’s strategies to enhance the IAHRS’s effective-
ness, including raising awareness of the IAHRS’s standards and contributing to
the development of those standards. Salazar and Cerqueira argue that the closer
the IAHRS works with civil society organizations the greater the impact of the
IAHRS will be.
Gabriela Kletzel’s chapter (Chapter III.6) examines how civil society organ-
izations in Argentina engaged with the IAHRS over the course of decades to
transform the human rights situation in their country. Kletzel also notes the
contributions of civil society actors throughout the Americas to the defense and
improvement of the institutions of the IAHRS themselves.
We invite the reader to engage critically with our exploration of the IAHRS,
which considers both its advances and setbacks, potential and limitations,
strengths and weaknesses. We are confident that this volume will help readers
to increase their understanding of ICCAL’s multidimensional, transformative
impact. They will be better placed to engage with and contribute to future re-
search on the IAHRS’s impact in the context of emerging challenges, such as dig-
ital rights, climate change, and freedom from violence, including cyberviolence.
As this volume demonstrates, the IAHRS’s community of practice is capable of
overcoming unprecedented obstacles, guided by a victim-centric approach that
prioritizes the protection of human rights and relying on a wide variety of tools
to achieve not only individual reparations but also structural transformations
affecting the entire region.
PART I
FR A MING T HE IM PAC T OF T H E
IN T E R-A ME R IC A N SYST E M
I.1
Inducing Compliance as a
Transformative Process
The Bright Side of a Dismal Record
By Armin von Bogdandy and René Urueña
1. Introduction
While much admired for its groundbreaking decisions, the Inter-American

Court of Human Rights (Inter-American Court, or IACtHR) seems rather in-
effective.1 States particularly fail to implement full reparations on issues such as
forced disappearances, amnesties, or socioeconomic rights. Many quantitative
studies have evidenced low rates of compliance with IACtHR judgments.2
1 This chapter is drawn from sections of Armin von Bogdandy and René Urueña, “International
Transformative Constitutionalism in Latin America” [2020] 114 American Journal of International

Law 403.
2 One of us has contributed to this body of quantitative studies, with a study on the possible reasons
behind Colombia’s low level of compliance. See René Urueña, Beatriz Sanchez, and Sergio Anzola,
Después del fallo: El cumplimiento de las decisiones del sistema interamericano de derechos humanos.
Una propuesta de metodología (Universidad de los Andenes 2015). While these kinds of quantitative
studies on compliance provide a valuable and necessary starting point to think about the IACtHR’s
impact, they leave many issues of the wider dynamic of impact unexplained. The present chapter is
an effort to fill that scholarly gap. For further quantitative work on low levels of compliance in the
region, see, e.g., Fernando Basch et al., “The effectiveness of the Inter-American system of human
rights protection: a quantitative approach to its functioning and compliance with its decisions”
[2010] 12 SUR-International Journal of Human Rights 9. Cecilia M. Bailliet, “Measuring compliance
with the Inter-American Court of Human Rights: The ongoing challenge of judicial independence
in Latin America” [2013] 31 Nordic Journal of Human Rights 477. David C. Baluarte, “Strategizing
for Compliance: The Evolution of a Compliance Phase of Inter-American Court Litigation and the
Strategic Imperative for Victims’ Representatives” [2011] 27 American University International Law
Review 263. Damian A. Gonzalez-Salzberg, “Do States comply with the compulsory judgments of the
Inter-American Court of Human Rights? An empirical study of the compliance with 330 measures of
reparation” [2014] 13 Revista do Instituto Brasileiro de Direitos Humanos 93.). Celeste Kauffman and
Cesar Rodriguez-Garavito, “De las órdenes a la práctica: análisis y estrategias para el cumplimiento
de las decisiones del sistema interamericano de derechos humanos,” in Camilla Barreto Maia et al.,
Desafíos del Sistema Interamericano de Derechos Humanos. Nuevos tiempos, viejos retos (Colección
De Justicia 2015). Helio Bicudo, “Cumplimiento de las sentencias de la Corte Interamericana
de Derechos Humanos y de las recomendaciones de la Comisión Interamericana de Derechos
Humanos,” in Antônio Augusto Cançado Trindade (ed.), El Sistema Interamericano de Protección
de los Derechos Humanos en el umbral del siglo XXI (UNAM 2003). Juana Inés Acosta López and
Armin von Bogdandy and René Urueña, Inducing Compliance as a Transformative Process In: The Impact of the
Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor,
and Mariela Morales Antoniazzi, Oxford University Press. © Armin von Bogdandy and René Urueña 2024.
DOI: 10.1093/oso/9780197744161.003.0002
18 Armin von Bogdandy and René Urueña
At the same time, it is evident that States do not simply ignore the Inter-
American Court. Unlike the Andean Tribunal of Justice (its regional economic
integration peer, which exerts little influence on decision makers3), the IACtHR
plays a key role in many important controversies in the Americas. Victims, civil
society organizations, but also States continuously bring cases seeking to have
rulings that deeply affect millions.
In this chapter, we explore the apparent paradox between low levels of com-
pliance with the Inter-American Court’s orders and high levels of engagement
with the Court on key regional issues. We argue that “compliance” is too narrow
a prism to understand the true impact, and indeed the transformative effects of
the IACtHR’s activities. Focusing solely on compliance risks overlooking the so-
cial relevance of its orders and interpretations. To see the full picture, it takes
studying the Court’s role in the Latin American community of human rights.
This community consists of a dynamic process of interaction between many ac-
tors who trigger the transformative impacts of the decisions.
We begin our argument by briefly describing Latin American transformative
constitutionalism, a regional iteration of the broader theory of transformative
constitutionalism that emerged in South Africa in the 1990s.4 We then introduce
the concept of the Latin American community of human rights practice, a group
of actors that organize around the American Convention on Human Rights
(American Convention, or ACHR) to promote their agendas and fulfill their
mandates. This community is key to the impact of the Inter-American Court, as
we show in the fourth section of this chapter.
Diana Bravo Rubio, “El cumplimiento de los fines de reparación integral de las medidas ordenadas
por la Corte Interamericana de Derechos Humanos: énfasis en la experiencia colombiana” [2008] 6
International Law: Revista Colombiana de Derecho Internacional 13. Ezequiel Gonzalez-Ocantos and
Wayne Sandholtz, “Constructing a regional human rights legal order: The Inter-American Court, na-
tional courts, and judicial dialogue, 1988–2014” [2021] 19 International Journal of Constitutional Law
1559. For a critical review, see Par Engstrom, “Reconceptualising the impact of the Inter-American
human rights system” [2017] 8 Revista Direito e Práxis 1250; Estrada Vargas and Eduardo Andrés,
“Variación en el cumplimiento de las sentencias emitidas por la Corte Interamericana de Derechos
Humanos” [2022] 33(2) Revista Latinoamericana de Derechos Humanos (II Semestre 2022) 85–105.
González-Salzberg, Damián, “Complying (Partially) with the Compulsory Judgments of the Inter-
American Court of Human Rights,” in Borges Fortes et al. (eds.), Law and policy in Latin America.
Transforming Courts, Institutions, and Rights (MacMillan 2017), 39–51.
3 See Karen J. Alter and Laurence R. Helfer, Transplanting international courts: the law and politics
of the Andean Tribunal of Justice (Oxford University Press 2017).

4 On the concept of iteration Human Rights, Sovereignty and Democratic Iterations by Professor
Dr. Seyla Benhabib Eugene Meyer Professor of Political Science and Philosophy, Yale University
Session 6, Keynote Lectures: “Human Rights—Global Culture—International Institutions” Our
Common Future, Hannover, November 4, 2010, Lecture manuscript.
Inducing Compliance as a Transformative Process 19
2. Latin American Transformative Constitutionalism
Transformative constitutionalism describes the practice of interpreting and

applying constitutional norms in a way that seeks to promote deep social change.
US scholar Karl Klare initially proposed the notion in the context of South
African constitutional adjudication in the late 1990s.5 We do not fully endorse
his concept, as Klare sees transformative constitutionalism as part of “post-
liberal law,” giving it a Critical Legal Studies bend. We rather follow the South
African scholar Theunis Roux, who considers transformative constitutionalism
as compatible with liberal constitutionalism.6 Indeed, around the same time,
many Latin American judges, activists, and academics started using policy-
oriented techniques of legal interpretation from the liberal mainstream (such as
the principle of proportionality) to transform political and distributive realities
in the region, an approach often labeled “neo-constitutionalism.”7
We understand transformative constitutionalism as an approach to legal in-
terpretation that takes as one of its paramount goals the effective transforma-
tion of deeply entrenched structures toward a more democratic society that fully
respects, protects, and fulfills human rights. The phenomenon has special rel-
evance for Latin America, which particularly suffers from violence, exclusion,
and weak institutions. In the next section, we argue that the judicial practice of
the IACtHR displays characteristics of transformative constitutionalism in its re-
sponse to these conditions.
To frame transformative constitutionalism in more theoretical terms, the
notion of “responsive law” is helpful, introduced by Nonet and Selznick in the
late 1970s.8 In their seminal work, the authors identify various forms of legal
5 Karl E. Klare, “Legal Culture and Transformative Constitutionalism” [1998] 14 South African
Journal on Human Rights 146; “By transformative constitutionalism,” says Klare, “I mean a long-term
project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of
course, but in a historical context of conducive political developments) to transforming a country’s
political and social institutions and power relationships in a democratic, participatory, and egali-
tarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale so-
cial change through nonviolent political processes grounded in law.” Ibid. at 150.
6 See Theunis Roux, “A Brief Response to Professor Baxi,” in Oscar Vilhena, Upendra Baxi, and
Frans Viljoen (eds.), Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India
and South Africa (PULP 2013), 48–52; for Francois Venter, by contrast, the notion of transforma-
tion in South Africa has become “pliable, and ideologically compromised.” See Francois Venter, “The
Limits of Transformation in South Africa’s Constitutional Democracy” [2018] 34 South African
Journal on Human Rights 143, 165.
7 See generally Paolo Comanducci, “Formas de (neo)constitucionalismo: Un análisis metateórico,”
in Miguel Carbonell (ed.), Neoconstitucionalismo(s) (Trotta-UNAM 2013), 159; Roberto Gargarella,

Piazzolla, ‘Dworkin, y el Neoconstitucionalismo’ (Seminario de teoría constitucional y filosofía,
August 25, 2011), <http://seminariogargarella.blogspot.com/2011/08/piazzolla-dworkin-y-el.html>
(accessed February 5, 2022).
8 Philippe Nonet and Philip Selznick, Law & Society in Transition: Toward Responsive Law (Harper
Torch Books 1978). Making the explicit link of how Selznick’s responsive law inspired some of the
early thinking on new constitutionalism in Latin American in the 1990s, see Manuel José Cepeda
Espinosa, “Responsive Constitutionalism” [2019] 15 Annual Review of Law and Social Science 21.
ordering. The first is “repressive law,” in which the ultimate goal of the legal
system is order; legal reasoning is ad hoc, expedient, and particularistic; coercion
is expanded and weakly restrained; and law is generally subordinated to power
politics. The second is “autonomous law,” in which the legal system serves the de-
velopment of modern market societies. Here, legal reasoning adheres strictly to
legal authority (but is susceptible to excessive formalism), legal restraints control
coercion, and law is generally not at the whim of politics.9
These two archetypes, which can exist side by side in one legal order, accu-
rately depict the context in which transformative constitutionalism emerged
in Latin America. In some respects, scholars, politicians, and activists have
regarded law as a continuation of the politics of repression that characterized
much of the region. From this perspective, constitutionalism could not work as
a viable platform for social change, which would only be brought about by elec-
toral politics, social mobilization, or armed revolution. At the same time, the ar-
chetype of autonomous law reflects the strand of formalistic legal thought that
also characterized constitutionalism in the region, as it turned a blind eye to the
structural problems of social life.
Nonet and Selznick argue a third archetype: a “responsive” law in which the
legal system, building on the premise of an autonomous law, responds to so-
cial needs and aspirations. A key case in that respect has been the US Supreme
Court’s Brown v. Board of Education decision. It addressed the most serious defi-
ciency in American society: racially motivated discrimination against citizens.10
Brown v. Board of Education became the most famous transformative decision
in legal history, and perhaps the most celebrated of all judicial decisions world-
wide. This decision and the ensuing case law inspired what would emerge as
transformative constitutionalism in Latin America a generation later: many of
its protagonists had studied the US Rights Revolution.11 Because it is evident that
systemic racial discrimination persists in the United States, it is clear to all that
judgments alone cannot transform society. But they can contribute to such trans-
formation.12 In other words, courts can transcend their customary role of set-
tling individual cases and stabilizing the status quo. Brown v. Board of Education
9 Nonet and Selznick (n. 8), at 16.

10 USSC, Brown v. Board of Education, 347 U.S. 483 (1954); on its transformative thrust: John
Seigenthaler, “Brown v. Board of Education: Making a More Perfect Union” [2005] 34 Stetson Law
Review 457.
11 Yves Dezalay and Bryant G Garth, The Internationalization of Palace Wars: Lawyers, Economists,
and the Contest to Transform Latin American States, The Chicago Series in Law and Society
(University of Chicago Press 2002), 110 ff.
12 Samuel Moyn, Not Enough: Human Rights in an Unequal World (Belknap Press of Harvard
University Press 2018), esp. at 173 ff.; Steven Levitsky and Daniel Ziblatt, How Democracies Die
(Crown 2018), at 251 ff.
highlights that the law, with its many actors and institutions, can play its role in
social transformations, notwithstanding its limits, paradoxes, and failures.
In this archetype, legal actors test “alternative strategies for the implementa-
tion of mandates and reconstruct ( . . . ) those mandates in the light of what is
learned.”13 Such a process also implies a redistribution of resources within so-
ciety that “transforms” social structures. Hence, what Nonet and Selznick call
“responsive law” undergirds a transformative approach to the legal system that
regards law as separate from politics, but remains concerned with the effects of
law on society.
What we describe as “transformative constitutionalism,” therefore, is an ap-
proach to constitutional texts composed of a set of empirical assumptions, argu-
mentative tools, and normative goals that coalesce around the notion that legal
interpretation should strive toward being responsive to societal problems. Such
an approach can have both critical and pragmatic modes. In its critical mode,
transformative constitutionalism identifies the social consequences of purely
formal or technical questions of constitutional adjudication. In its pragmatic
mode, transformative constitutionalism interprets legal texts to achieve con-
stitutional objectives, which often implies changing or transforming current
structures.14
Thus understood, the notion of transformative constitutionalism describes
both the experience and the ambitions of the inter-American human rights
project. Indeed, the admittedly charged concept of “constitutionalism” is
useful in accounting for the inter-American regime’s close connection to do-
mestic constitutional law: the transformative thrust of the interpretations by
the IACtHR is triggered and supported by features of domestic constitutions.15
Moreover, the Court’s interpretation of the American Convention reflects
the Latin American approach to “transformative constitutionalism,” as one of
its interpretive objectives is to transform realities in the region, including by
addressing structures of violence, exclusion, and weak institutions. Finally, the
Court operates much like a domestic constitutional court, not least because it
has declared that parliamentary statutes contrary to the ACHR are void, a power
usually reserved for constitutional adjudication.
13 Nonet and Selznick (n. 8), at 109.

14 Karin van Marle, “Transformative Constitutionalism as/and Critique” [2009] 20 Stellenbosch
Law Review 286; Javier Couso, “Latin American New Constitutionalism. A Tale of Two Cities,” in
Conrado Hübner Mendes, Roberto Gargarella, and Sebastián Guidi (eds.), The Oxford Handbook of
Constitutional Law in Latin America (Oxford University Press 2022), 354–365.
15 Paola Andrea Acosta Alvarado, Diálogo judicial y constitucionalismo multinivel: el caso
interamericano, Primera edición (Bogotá: Universidad Externado de Colombia 2015).

3. The Latin American Human Rights Community
To show how such legal decisions can influence social reality, we conceive trans-
formative constitutionalism as a practice: it is relevant in the region because
numerous actors apply this approach in their legal work on the ground, thus
turning an interpretive mindset into a social practice common to the region. We
then consider these actors to form a Latin American human rights community.
This latter concept helps develop the approach of Latin American transforma-
tive constitutionalism that posits a new common law of human rights in Latin
America.16
The Latin American human rights community organizes around the American
Convention on Human Rights. It is composed of various actors: of course, the
judges and clerks of the Court, the commissioners, and staff of the Commission,
but also transnational NGOs and lawyers that bring cases before the Inter-
American System, grassroots organizations that use human rights to find and to
protect victims on the ground, law school clinics that file amicus briefs, domestic
courts that interpret and apply the Convention and IACtHR jurisprudence, civil
servants that work on human rights for domestic governments, scholars writing
and teaching inter-American human rights law, and, last, but certainly not least,
politicians with human rights agendas.
The concept of a community of practice is derived from educational research.
In 1991, anthropologist Jean Lave and computer scientist Etienne Wenger
proposed the notion of situated learning. Learning, they argued, is fundamen-
tally a social process and implies socialization.17 A community of practice, then,
denotes a group of people defined by mutual engagement, a joint enterprise, and a
shared repertoire, meaning “routines, words, tools, ways of doing things, stories,
gestures, symbols, genres, actions, or concepts that the community has produced
or adopted in the course of its existence and which have become part of its prac-
tice.”18 This notion was later taken up by international relations scholar Emanuel
Adler, who suggests that “there is no reason . . . why we should not be able to
identify transnational or even global communities of practice. The closer we get
to the level of practices, in fact, the more we can take the international system as a
collection of communities of practice—for example, communities of diplomats,
traders, environmentalists, and human rights activists. Communities of practice
16 See generally Armin von Bogdandy et al. (eds.), Transformative constitutionalism in Latin
America: the emergence of a new Ius Commune (Oxford University Press 2017).
17 The seminal text is Jean Lave and Etienne Wenger, Situated Learning: Legitimate Peripheral
Participation (Cambridge University Press 1991).

18 Etienne Wenger, Communities of practice: learning, meaning, and identity (Cambridge
University Press 1998), 83.

cut across state boundaries and mediate between states, individuals, and human
agency, on one hand, and social structures and systems, on the other.”19
Scholars of international law have already discussed communities of practice.
Most importantly, Jutta Brunnée and Stephen Toope have used the notion to an-
alyze the issue of international legal obligation.20 For Brunnée and Toope, the
interactions of transnational communities of practice enabled the emergence of
such obligations: “Legal obligation, then, is best viewed as an internalized com-
mitment and not as an externally imposed duty matched with a sanction for
non-performance.”21 This notion applies to the workings of transformative con-
stitutionalism in Latin America.
A community of practice is not homogeneous.22 Its members often have
different and even conflicting projects and views. A community of practice is
constituted not by a single goal, but instead by common practices as well as a
shared understanding of the social meaning of those practices.23 These practices
relate to a framework composed of inter-American institutions, inter-American
law, actors in the Inter-American System, and distinct, regional challenges,
which lend the community a sense of purpose. This is not to say that all actors
in the community of practice agree on all issues. Members of the community
might reject the Court’s transformative approach;24 they might reject the out-
come of a particular case, or the remedies ordered by the Court, that reflect
its transformative approach; they might also disagree that the Inter-American
Court’s activities should be framed in terms of transformative constitution-
alism.25 Such disagreements do not undermine the claim that a community has
emerged around the transformative interpretative. On the contrary, they confirm
19 Emanuel Adler, Communitarian International Relations: The Epistemic Foundations of
International Relations (Routledge, 2005), at 15.

20 Stephen J. Toope and Jutta Brunnée, Legitimacy and Legality in International Law: An
Interactional Account (Cambridge University Press 2010).

21 Ibid 115.
22 Emanuel Adler, Communitarian International Relations, at 22. The notion of communities
of practice has been criticized for remaining silent on the issue of power imbalances; for example,
in Alessia Contu and Hugh Willmott, “Re-embedding Situatedness: The Importance of Power
Relations in Learning Theory” [2013] 14 Organization Science 283. However, our reading of the Latin
American community of human rights practice takes into account differences in power differences,
as it considers many actors and not only States and international organizations.
23 Community is a term that has many meanings, see Steven Brint, “Gemeinschaft Revisited: A
Critique and Reconstruction of the Community Concept” [2001] 19 Sociological Theory 1.

24 For example, by arguing that the transformative approach could result in an unjustifiable expan-
sion of the Court’s powers. See Jorge Contesse, “The Final Word? Constitutional Dialogue and the
Inter-American Court of Human Rights” [2017] 15 International Journal of Constitutional Law 414.
25 For example, when conservative Evangelical groups reject the Court’s case law expanding
LGBTIQ+rights. See René Urueña, “Evangelicals at the Inter-American Court of Human Rights”
[2019] 113 American Journal of International Law 360. Pro-family groups have also responded neg-
atively to the Court’s rulings on reproductive rights, see Julieta Lemaitre and Rachel Sieder, “The
Moderating Influence of International Courts on Social Movements” [2017] 19(1) Health and
Human Rights 149.
its existence, in the sense that actors compete to give meaning to the American
Convention thereby feeding the community of practice. These disagreements
thus reaffirm the relevance of the transformative constitutional approach and
clarify its legal framework. The framework can accommodate many differing
views concerning inter-American human rights, but continuous interaction
settles the meaning of an international norm in any given case. National judges’
engagement with decisions of the IACtHR, as members of the community of
practice, is of particular importance.26 Hence, it is of utmost relevance when
national judges self-identify as “inter-American judges” even while expressly
disagreeing with the Court on issues that affect them.27
The notion of a community implies that there are insiders and outsiders.
Among outsiders, there are, first, and most obviously, those who simply are not
engaging with Inter-American human rights law. Secondly, some seek to un-
dermine the common practices of the community or the shared understanding
of their social meaning.28 In that respect, the governments of Nicaragua or
Venezuela are clearly outsiders. An interesting border case is provided by the
presidents of Argentina, Brazil, Chile, Colombia, and Paraguay when they sent
a letter to the Inter-American Commission of Human Rights in April 2019 that
strongly suggested the regional institutions show greater respect for the prin-
ciple of subsidiarity, apply more restrained methods of interpretation, and op-
erate with “due knowledge and consideration of the political, economic, and
social realities of States by the organs of the . . . System.”29 The president’s letter
reveals the politically motivated concern of governments that are often criticized
by inter-American institutions but also reflects wider wariness with what critics
perceive to be an illegitimate expansion of the Inter-American System’s powers.
26 See Gonzalez- Ocantos y Sandholtz (n. 2), 1559; Manuel Góngora Mera, “Interacciones y
convergencias entre la Corte Interamericana de Derechos Humanos y los tribunales constitucionales
nacionales,” in Armin von Bogdandy, Flávia Piovesan, and Mariela Morales Antoniazzi (eds.), Direitos
humanos, democracia e integração jurídica: Emergência de um novo direito público (Elsevier 2013),
312; Diana Guarnizo-Peralta, “¿Cortes pasivas, cortes activas, o cortes dialógicas?: Comentarios en
torno al caso Cuscul Pivaral y otros v. Guatemala,” in Mariela Morales Antoniazzi, Liliana Ronconi,
and Laura Clérico (eds.), Interamericanización de los DESCA. El caso Cuscul Pivaral de la Corte IDH
(MPIL 2020), 429.
27 See the contributions by Arturo Zaldívar Lelo de Larrea (Mexico), Carmen María Escoto (Costa
Rica), and Dina Ochoa Escribá (Guatemala) at the Inter-American Court in occasion of the fortieth
anniversary of the American Convention, to be published on the Court’s website.
28 The letter by the presidents of Argentina, Brazil, Chile, Colombia, and Paraguay provides a
borderline case.
29 See República Argentina, la República Federativa del Brasil, la República de Chile, la República
de Colombia y la República del Paraguay, Declaración Sobre el Sistema Interamericano de Derechos

Humanos (2019), at https://www.mre.gov.py/index.php/noticias-de-embajadas-y-consulados/
gobier nos-de-argentina-brasil-chile-colombia-y-p araguay-s e-manif iest an-s obre-el-sistema-
interamericano-de-derechos-humanos (visited October 23, 2023). On the backlash against the
Inter-American tribunal, see Ximena Soley and Silvia Steininger, “Parting ways or lashing back?
Withdrawals, backlash and the Inter-American Court of Human Rights” [2018] 14 International
Journal of Law in Context 237–257.
On the one hand, the letter engages with the System, expresses support for its
aims, and deploys legitimate arguments for its development. On the other hand,
the letter could be part of a strategy to dismantle the System or to change its basic
outlook.
Analyzing the Inter-American Court’s transformative interpretation of the
ACHR with a focus on the Latin American human rights community of practice
also reveals the perception of many actors in the community that the IACtHR’s
case law allows them to better fulfill their mandates. Both the American
Convention and most national constitutions task all public authorities, not only
judges, with addressing, within the scope of their powers and procedures, the
challenges of violence, social exclusion, and weak institutions. For example,
Article 3 of the Ecuadorian Constitution states that the State’s prime duties
are, among others, “planning national development, eliminating poverty, and
promoting sustainable development and the equitable redistribution of re-
sources and wealth to enable access to good way of living,” and “guaranteeing
its inhabitants the right to a culture of peace, to integral security and to live in
a democratic society free of corruption.” Article 3 of the Brazilian Constitution
similarly states that the fundamental objectives of the Federative Republic of
Brazil are, among others, to “guarantee national development” and “to eradi-
cate poverty and substandard living conditions and to reduce social and regional
inequalities.” As such, interaction with the Inter-American Court has become
an important dimension of the mandate of national human rights institutions in
the region. It is now common for such institutions to adopt the IACtHR’s evolu-
tive interpretation of the ACHR and to promote human rights in their respective
States in accordance with this method of interpretation.30
The Inter-American Court, in turn, construes expansively its powers to
foster this community for example by gathering information (Article 69(2) of
its Rules).31 The IACtHR depends on national human rights institutions to in-
duce State compliance with the Court’s orders. Sometimes such institutions
can be mobilized against the respective government. To this end, the Inter-
American Court draws those institutions into the community of practice. Such
has occurred in the context of Artavia Murillo v. Costa Rica, a case concerning in
vitro fertilization (IVF) in which Costa Rica’s Public Defender’s Office intervened
in the public hearing of monitoring compliance, and Velez Loor v. Panama, a
30 Thomas Innes Pegram, “National Human Rights Institutions in Latin America: Politics and
Institutionalization,” in Ryan Goodman and Thomas Innes Pegram (eds.), Human Rights, State
Compliance, and Social Change: Assessing National Human Rights Institutions (Cambridge University
Press 2012), 210.
31 IACtHR Rules, Procedure for Monitoring Compliance with Judgments and Other Decisions
of the Court, art. 69(2) (“The Court may require from other sources of information relevant data
regarding the case in order to evaluate compliance therewith. To that end, the Tribunal may also re-
quest the expert opinions or reports that it considers appropriate.”).
case concerning an Ecuadorian migrant, tortured and mistreated in Panama,

in which the Panamanian Defender’s Office intervened in a private hearing of
compliance.32
4. Compliance as a Transformative Practice
Skeptics of the transformative impact of inter-American adjudication often

highlight States’ lack of compliance with the IACtHR’s orders.33 This lack might
appear to undermine international transformative constitutionalism: if the Inter-
American Court is unable to produce results at the level of an individual case,
it might be assumed that it fails, even more, to produce social transformations.
This conclusion, however, is incorrect. Focusing solely on case-specific compli-
ance overlooks the transformative effects of the IACtHR’s compliance activities.
Moreover, a focus on compliance disregards the wider impact of the Inter-
American Court’s orders and interpretations,34 which is more clearly seen if we
consider the Court in the broader context of the Latin American community of
human rights.35
The IACtHR considers inducing compliance to be part of its core man-
date, unlike the European Court of Human Rights (ECtHR), as the European
Convention on Human Rights (ECHR) delegates this task to the Committee of
Ministers. The IACtHR’s monitoring of compliance is mostly dialogical and in-
formational. It is less concerned with swiftly enforcing certain orders than it is
with creating cognitive frameworks and domestic political dynamics that will
guide other actors toward implementing the Court’s orders. Some of the relevant
tools at the IACtHR’s disposal are the country reports produced by the Inter-
American Commission on Human Rights (Inter-American Commission, or
IACHR), informational requirements, and in loco visits,36 as well as the Court’s
decentralized compliance hearings.37 Both the Court and the Commission use
32 See Case of Artavia Murillo [2012] IACtHR, Ser. C No. 257; Vélez Loor v. Panama [2010]
IACtHR, Ser. C No. 218.

33 See note 1.
34 See in this volume Chapter I.3, Mariela Morales Antoniazzi, Flávia Piovesan, and Júlia Cortez da
Cunha Cruz; III.2, Pablo Saavedra; III.4, Viviana Krsticevic and René Urueña.
35 The Inter-American Court is both part of the community of practice and also provides a forum
for the other actors to interact. In certain contexts, the Court is an actor of the community (for ex-
ample, when it interacts with domestic courts, with the Commission, or with other international
courts and tribunals). However, in other contexts, the Court is a structure: it provides a space in
which other actors meet and debate their own interpretations of the common law of human rights.
36 Bertha Santoscoy Noro, “Las visitas in loco de la Comisión Interamericana de Protección de
los Derechos Humanos,” in Antonio Augusto Cançado Trindade (ed.), El sistema interamericano de
protección de los derechos humanos en el umbral del siglo XXI (UNAM 2003), 606.
37 See Felipe González, “La Comisión Interamericana de Derechos Humanos: Antecedentes,
funciones y otros aspectos” [2009] 5 Anuario de Derechos Humanos 35, 39–41, 54.
these tools to create cognitive and political frameworks that will empower do-
mestic civil society groups to exert pressure on States.38 The Inter-American
System also provides space for meetings between national authorities and do-
mestic stakeholders, and it works in tandem with civil society to create the
conditions needed for compliance. Compliance monitoring is thus geared to
foster a wider process of transformation.
The inter-American approach differs greatly from traditional understandings
of compliance. Traditionally, both the judicial decision and the context of im-
plementation are viewed as static, and compliance is understood as a mechan-
ical process in which “leverages” are activated to achieve the demanded behavior
from the addressees. The paradigmatic example comes from domestic private
law: compliance with a judicial decision is achieved by activating certain soci-
opolitical mechanisms (judicial enforcement, for instance) to “force” the ad-
dressee of the decision to do something (comply with an obligation). This notion
informs the dominant understanding of compliance in international legal schol-
arship,39 in which the key problem seems to be how to incentivize compliance
when there is little political leverage to compel States to change their behavior.40
Given the scarcity of enforcement mechanisms, compliance appears an almost
discretionary choice for States, particularly in the context of human rights.41
Our characterization of compliance diverges from the traditional under-
standing of the concept in two ways. First, we reject the idea that a judicial de-
cision is static. These decisions are neither fully crystallized nor carved in stone.
Indeed, orders by international courts are often vague, and their precise contours
only become apparent in the process of implementation through dialogue with
the relevant State authorities. In other words, a judicial order is just one step, al-
beit an essential one, in a long process of transformation. The order defines the
scope and direction of possible implementation but usually does not detail con-
crete policies.
38 See Celeste Kauffman and César Rodríguez-Garavito, “De las órdenes a la práctica: Análisis y
estrategias para el cumplimiento de las decisiones del sistema interamericano de derechos humanos,”
in Camilla Barreto Maia et al., Desafíos del Sistema Interamericano de Derechos Humanos. Nuevos
tiempos, viejos retos (Colección De Justicia 2015), 276; Clara Burbano Herrera and Yves Haeck, “The
Historical and Present-Day Role of Non-Governmental Organisations before the Inter-American
Human Rights System in Documenting Serious Human Rights Violations and Protecting Human
Rights and the Rule of Law Through Ensuring Accountability” [2021] 17 Utrecht Law Review 8.
39 For a mapping of this issue, see Benedict Kingsbury, “The Concept of Compliance as a Function
of Competing Conceptions of International Law” [1998] 19 Michigan Journal of International

Law 345. For a critique, see Robert Howse and Ruti Teitel, “Beyond Compliance: Rethinking Why
International Law Really Matters” [2010] 1(2) Global Policy 127–136.
40 Eric A. Posner and Alan O. Sykes, Economic Foundations of International Law (Harvard

41 See, e.g., Eric A. Posner, The Twilight of Human Rights Law (Oxford University Press
2014), 69–78.
Second, we observe that the context of implementation is rarely static. The

Inter-American Court often drafts a decision in light of the conditions for its
implementation. It understands that the political leverage for compliance often
changes over time, including in response to the issuance of the decision itself.
Thus, when the IACtHR adopts an order, compliance is a question not merely of
whether tools needed to coerce the State into compliance exist but also of how
the decision can be used to mobilize and even generate such tools and push the
State toward compliance. It will reflect if there is an active domestic judiciary or
civil society, and how these can use this decision to achieve compliance and to
mobilize support.
Even incidents of open resistance to inter-American decisions are part of
this long, transformative process in the direction of compliance. Consider the
Fontevecchia case, in which the IACtHR ordered Argentina to render a Supreme
Court decision ineffective because it violated the right to freedom of expres-
sion of two journalists who had been ordered by a domestic court to pay com-
pensation to a former president.42 The Supreme Court of Argentina, however,
decided that the inter-American decision could not be implemented: while
inter-American decisions were, “in principle,”43 binding, they could not be
complied with if the international tribunal had exceeded its powers or if its de-
cision contradicted “basic principles of Argentinean public law.”44 The Supreme
Court of Argentina was thus not only retreating from its precedent that had ac-
cepted inter-American decisions as binding under Argentinean law45 but also
positioned itself in direct opposition to the IACtHR.
The Inter- American Court, however, continued monitoring compliance
with its Fontevecchia decision and signaled alternative mechanisms of compli-
ance available to Argentina. It determined that Argentina could comply with the
inter-American decision by removing the prior, domestic decision “from the
web pages of the Supreme Court of Justice and the Judicial Information Center”
or by adding to the decision “some type of annotation is made indicating that
this sentence was declared in violation of the American Convention by the
42 Fontevecchia and D’amico v. Argentina [2011] IACtHR, Ser. C No. 238, para. 137.
43 Corte Suprema de Justicia de la Nación, Ministerio de Relaciones Exteriores y Culto s/informe
sentencia dictada en el caso “Fontevecchia y D’Amico vs. Argentina” por la Corte Interamericana de
Derechos Humanos, February 14, 2017, consideration 6 (Arg.).
44 Corte Suprema de Justicia de la Nación, Ministerio de Relaciones Exteriores y Culto s/informe
sentencia dictada en el caso “Fontevecchia y D’Amico vs. Argentina” por la Corte Interamericana de
Derechos Humanos, February 14, 2017, consideration 16 (Arg.).
45 See Víctor Abramovich, “Comentarios Sobre ‘Fontevecchia’, La Autoridad de Las Sentencias
de La Corte Interamericana y Los Principios de Derecho Público Argentino” [2017] 10 Pensar En

Derecho 9–25. See further Corte Suprema de Justicia de la Nación, Espósito, Miguel Ángel s/incidente
de prescripción de la acción penal promovido por su defensa, December 23, 2004, “considering” 6, 10
(Arg.); Corte Suprema de Justicia de la Nación, Derecho, René Jesús s/incidente de prescripción de la
acción penal –causa n° 24.079, November 29, 2011, “considering” 4, 5 (Arg.).
Inter-American Court.”46 The Argentinean court decided to accept the IACtHR’s

proposal, and added the following sentence to the official text of its decision: “This
judgment was declared incompatible with the American Convention on Human
Rights by the Inter-American Court (judgment of November 21, 2011).”47
To some critics, this outcome may seem insufficient, since Argentina did not
comply with the IACtHR’s initial order that the domestic decision be revoked. To
us, however, the Fontevecchia saga reveals that an initial act of noncompliance
can prompt a dynamic process of interaction that ultimately generates concrete
results. In the face of the Argentinean tribunal’s open rejection of its order, the
Inter-American Court adapted its position, offering alternatives for compliance
that were accepted by the State. Neither the specific mechanism of compliance,
nor the Argentinean context, was carved in stone: both the international tribunal
and its domestic counterpart engaged in a process of interaction and adaptation
that resulted in an unanticipated outcome that both found satisfactory.
The IACtHR’s monitoring compliance is not a political process largely out-
side the Court’s bailiwick but rather forms an integral part of its adjudication.
Importantly, monitoring compliance stretches over time and involves many
stakeholders. Thereby, compliance in a given case morphs smoothly into the
much larger process of transformation that strengthens the domestic commu-
nity of practice, including civil society organizations, national human rights
institutions, domestic tribunals, and even actors that oppose a particular deci-
sion of the Court.
5. Transformative Constitutionalism beyond Compliance
Compliance should not be fetishized as a proxy for real-life impact. While

compliance studies are relevant, they are only one factor in determining
the impact of inter-American institutions on the protection and advance-
ment of human rights,48 particularly when structural problems are at
46 Fontevecchia and D’Amico v. Argentina, [2017] IACtHR, Ser. C No. 238, para. 21.
47 Corte Suprema de Justicia de la Nación, Resolution No. 4015 (Arg.), December 5, 2017.
48 On the impact of domestic adjudication, see César Augusto Rodríguez Garavito and
Diana Rodríguez Franco, “Más allá del desplazamiento: Políticas, derechos y superación del
desplazamiento forzado en Colombia [Beyond displacement: Politics, rights, and overcoming forced
displacement in Colombia]” (Ediciones Uniandes 2010); Cesar Rodriguez-Garavito, “Beyond the
Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America” [2011]
89(7) Texas Law Review 1669, 1683. On the wider impacts of inter-American adjudication, see
Oscar Parra, “The Impact of Inter-American Judgments by Institutional Empowerment,” in Armin
von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America: The Emergence
of a New Ius Commune (Oxford University Press 2017), 357–376. Viviana Krsticevic, “El derecho
común transformador: el impacto del diálogo del sistema interamericano de derechos humanos con
las víctimas en la consecución de justicia,” in Armin von Bogdandy, Eduardo Ferrer Mac-Gregor,
Mariela Morales Antoniazzi, and Pablo Saavedra Alessandri (coords.), Cumplimiento e impacto de
las sentencias de la Corte Interamericana y el Tribunal Europeo de Derechos Humanos. Transformando
stake.49 Following its mandate of supporting transformative constitutionalism,

the IACtHR orders reparations difficult to comply with, such as the prosecution
of individuals who belong to powerful social groups. If the Inter-American Court
considered full compliance its primary objective, it would have to renounce its
mandate to help profound change.
“Impact,” a wider analytical prism than “compliance,” allows for a better un-
derstanding of the dynamics of human rights protection.50 Domestic civil society
groups often use inter-American decisions to promote domestic human rights
agendas.51 This creates “compliance partnerships,” that is a cooperation between
inter-American institutions and civil society groups.52 The System’s decisions,
moreover, amplify the voices of those who have been systematically ignored.
Inter-American reparations, for example, often include symbolic measures in
which monuments are built to honor victims of atrocities. In 19 Merchants, the
Court ordered Colombia to “erect a monument in memory of the victims and, in
a public ceremony in the presence of the next of kin of the victims, [ . . . ] place a
plaque with the names of the 19 tradesmen” that were killed.53
In addition, the Inter-American System empowers domestic institutions that
are committed to human rights to use inter-American decisions in their disputes
with other domestic actors. For example, in 2009, three Colombian Supreme
Court justices who were investigating the links of the right-wing paramilitary
with both the presidency and Congress asked the Inter-American Commission
for precautionary measures to protect the Supreme Court against threats that
came from within the State.54 The Commission granted the measures and the
investigations could continue. The System’s orders are also useful for breaking
through institutional barriers that impede the protection of human rights.
realidades (MPIL; Instituto de Estudios Constitucionales del Estado de Querétaro; IIJ; UNAM 2019).
For a review of the relevant literature, see Par Engstrom, “Introduction: Rethinking the Impact of the
Inter-American Human Rights System,” in Par Engstrom (ed.), The Inter-American Human Rights
System: Impact Beyond Compliance (2019), 1.
49 See James L. Cavallaro and Stephanie Erin Brewer, “Reevaluating Regional Human Rights
Litigation in the Twenty-First Century: The Case of the Inter-American Court,” [2008] 102(4)
American Journal of International Law 768–827. Ximena Soley, “The Transformative Dimension
of Inter-American Jurisprudence,” in Armin von Bogdandy et al. (eds.), Transformative
Constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford University Press
2017), 337–355; Howse and Teitel (n. 39).
50 See René Urueña and Stephania Yate Cortes, in this volume.
51 Burbano Herrera and Haeck (n. 38), 8; Cavallaro and Brewer (n. 49).
52 Alexandra Huneeus, “Compliance with International Judgments,” in Yuval Shany, Karen J.
Alter, and Cesare P.R. Romano (eds.), The Oxford Handbook of International Adjudication (Oxford
University Press 2013), 437. For the effect of the Inter-American System on the relative strength of
domestic constituencies of constitutional lawyers, see Alexandra Huneeus, “Constitutional Lawyers
and the Inter-American Court’s Varies Authority” [2016] 79 Law & Contemporary Problems 179.
53 See Case of the 19 Merchants v. Colombia [2004] IACtHR, Ser. C No. 109, at 132 (English
translation).
54 Parra (n. 48).
Bureaucracies are path-dependent and often lack empathy with marginalized

individuals. Domestic civil society actors or public institutions might seek or-
ders from the Inter-American System to combat institutional inertia or bypass
institutional gatekeepers, spurring to-action bureaucracies that may otherwise
be reluctant to protect human rights.55
Through this strategic interaction, inter-American institutions profoundly af-
fect domestic legal systems and their operation.56 Building on the domestic con-
stitutional provisions explored in the first section of this chapter, inter-American
norms penetrate the reasoning of domestic courts, parliaments, and administra-
tive agencies, thus creating an expanding inter-American legal space in which
the human rights community of practice can operate.57
Of course, that community cannot on its own effectuate profound social
change. Transformations of that magnitude require a strong commitment from
many more actors throughout society as well as great political will.58 Most actors
of the Latin American human rights community is aware of this. They are usually
sophisticated repeat players who understand the possibilities for transformation,
but also the limitations of international human rights law.
The ubiquity of inter-American norms, decisions, and institutions throughout
the region creates a cognitive framework shared by civil society, courts,
academics, and even State institutions that are responsible for human rights
violations. In this process, many important sociopolitical conflicts are reframed
as distinctive human rights issues, as opposed to problems of an economic or
political nature that are beyond the law. This, we propose, is the crux of trans-
formative constitutionalism: apparently intractable social problems, once un-
derstood as amenable to nothing but sheer political force or raw power, are
reframed as legal issues and, indeed, as human rights violations. Effectively
expanding the frontiers of what can be framed as a human rights issue is essential
55 Clara Burbano Herrera and Yves Haeck, “The Innovative Potential of Provisional Measures
Resolutions for Detainee Rights in Latin America Through Dialogue Between the Inter-American
Court and Other Courts,” in Eva Rieter and Karin Zwaan (eds.), Urgency and Human Rights: The
Protective Potential and Legitimacy of Interim Measures (The Hague: T.M.C. Asser Press 2021), 223;
Mónica Arango Olaya, “Medidas provisionales adoptadas por la Corte Interamericana de Derechos
Humanos en el asunto B. vs El Salvador y el fortalecimiento de la protección de los derechos
reproductivos en el sistema interamericano” [2014] 10 Anuario de Derechos Humanos 177; Rodríguez
Garavito and Rodríguez Franco (n. 48).
56 Acosta Alvarado, “Diálogo judicial y constitucionalismo multinivel,” in Ezequiel A. González-
Ocantos, Shifting Legal Visions: Judicial Change and Human Rights Trials in Latin America (1st ed.,
Cambridge University Press 2016).
57 René Urueña, “Double or Nothing: The Inter- American Court of Human Rights in an
Increasingly Adverse Context” [2017] 45 Wisconsin International Law Journal 398.
58 Alexandra Huneeus, “Courts Resisting Courts: Lessons from the Inter- American Court’s
Struggle to Enforce Human Rights” [2011] 44 Cornell International Law Journal 493; Ariel E. Dulitzky,
“El impacto del control de convencionalidad. Un cambio de paradigma en el sistema interamericano
de derechos humanos?,” in Julio César Rivera (ed.), Tratado de los derechos constitucionales (Abeledo
Perrot 2014), 533; González-Ocantos (n. 56), 21; Soley (n. 49), 338, 344.
to transformative constitutionalism. Arguably, the Inter-American Court’s most

profound impact stems from this framing and its fostering of the respective Latin
American community of practice.
6. Concluding Remarks
Transformative constitutionalism does not provide a blueprint for a better world.

It is flexible and situational, not least because it depends on cases for its evolu-
tion. It requires relatively little in terms of “hardware” (e.g., institutional or finan-
cial infrastructure), but quite a lot in terms of “software” (e.g., a legal mindset).
As for hardware, transformative constitutionalism requires the basic infrastruc-
ture of constitutional democracy: a constitution with basic rights that operates
as a higher law, basic institutions of democratic representation, and a reasonable
and somewhat independent judiciary. As for software, transformative constitu-
tionalism requires a supportive public as well as a community of practice: several
legal actors whose approach to legal interpretation, first, responds to the percep-
tion that a particular society is structurally failing on its constitutional princi-
ples and, second, understands those structural deficiencies as issues that can be
meaningfully addressed—though not fully solved—through the adjudication of
individual cases representative of such deficiencies. This transformative mindset
rests on the hope that the interpretation and application of law to such cases
might inch the entire society closer to the basic social compact. This, crucially, is
a contribution only lawyers can make.
Part of transformative constitutionalism’s strength, however, lies in its flexi-
bility, which is evidenced by how the Inter-American Court is developing and
adapting its crucial link with the domestic judiciary: the conventionality con-
trol doctrine. Given that it needs a community of practice that engages with its
decisions, the IACtHR makes strategic efforts not to alienate some key commu-
nity insiders, such as important national courts. In the face of critiques from
scholars and domestic courts, the Inter-American Court has relaxed some
elements of the conventionality control doctrine. At one point, the IACtHR
seemed to require that conventionality control was an obligation of all State
organs, not only of the top judicial authorities.59 This interpretation, however,
created major risks in domestic systems where the rule of law is often weak and
also threatened the position of top judicial authorities in their domestic systems.60
59 Cabrera García and Montiel-Flores v. Mexico [2010] IACtHR, Ser. C No. 220, para. 225.
60 For an insider’s view of the Court’s shift, see Diego García-Sayán, Cambiando el futuro (Lápix
2017). García-Sayán was a judge at the Inter-American Court from 2004 to 2015 and served as
President of the Court from 2010 to 2014, when the main shift took effect. For a scholarly over-
view of the critiques, see Ariel E. Dulitzky, “An Inter-American Constitutional Court-The Invention
When these concerns were raised, the Inter-American Court promoted a more
limited understanding of the doctrine, clarifying that conventionality control
should be exercised by State authorities “evidently within the framework of their
respective jurisdictions and the corresponding procedural rules.”61 As such, con-
ventionality control represents the duty of domestic institutions to apply inter-
national law, as long as this is compatible with domestic norms of jurisdictions
and procedure—a doctrine much less radical than how it initially appeared.62
Nevertheless, the IACtHR’s flexibility is principled. In other words, its flexi-
bility is not merely tactical but is a function of the pursuit of its transformative
mandate. Thus, the Inter-American Court has not retreated with respect to its
substantive case law, which has drawn no less criticism. In comparison with the
ECtHR, the IACtHR has proven steadfast.63
Summing up, we reconstruct compliance as one component for under-
standing the IACtHR’s transformative impact. It is helpful, not least because it
can be measured. Yet interest in compliance should be integrated with an interest
in the Inter-American Court’s broader impact in Latin America. To see that im-
pact, the concept of the Latin American community of human rights practice is
useful. Moreover, in that broader picture, we have reframed compliance as an
iterative process that helps expand the Court’s impact by strengthening such a
community. The Latin American community of human rights practice, for all the
depth and breadth it has acquired over the last four decades, is only one of many
forces that compete to shape the future of the Americas.
of the Conventionality Control by the Inter-American Court of Human Rights” [2015] 50 Texas
International Law Journal 45, 60–64, 71–79.
61 Gelman v. Uruguay, Merits and Reparations [2011] IACtHR, Ser. C No. 221, para. 193.
62 The discussion of this dimension of conventionality control is based on René Urueña, “Domestic
Application of International Law in Latin America,” in Curtis A. Bradley, The Oxford Handbook of
Comparative Foreign Relations Law (Oxford University Press 2019), 565.
63 On refugee rights, compare Hirsi Jamaa et al. v. Italy App. No. 27765/09 (ECHR, Feb. 13, 2012),
with ND and NT v. Spain App. Nos. 8675/15 and 8697/15 (ECHR, Feb. 12, 2020). On the ECtHR and
the challenges to its decisions, see Mikael Rask Madsen, “The Challenging Authority of the European
Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash”
[2016] 79 Law & Contemporary Problems 141.
I.2
Protecting Human Rights in the Americas
The Continuous Role of the Inter-American
Commission on Human Rights
By Claudio Grossman
1. Introduction
This chapter’s purpose is to explore the role of the Inter-American Commission

on Human Rights (the Commission, or IACHR) throughout its history in the
Americas. Created in 1959, the Commission’s primary function is to advise
the Organization of American States (OAS) on the promotion and protection
of human rights and to ensure compliance by member States. The Commission
exercises its compliance role at three levels: addressing individual complaints,
assessing the human rights conditions of member States, and analyzing general
thematic areas. As an advisory organ for the OAS, the Commission provides
human rights input on political decision-making processes that have an im-
pact on human rights at the individual, member State, and thematic levels. The
Commission’s uniquely broad mandate allowed it to adapt its role to various
challenges throughout its history.
Moreover, the Commission pursues its human rights goals through several
mechanisms. It documents general or specific violations occurring in member
States through country reports and in loco country visits, then publishes and
presents its reports to the Permanent Council and General Assembly of the OAS.
The Commission has visited twenty-three member States in about one hundred
on-site visits and published over seventy country reports since it began using this
instrument in 1961.1 The Commission also creates Rapporteurships on topics
that, in its view, deserve particular attention. Currently, these topics include
the rights of Indigenous peoples; the rights of women; the rights of migrants;
freedom of expression; the rights of the child; human rights defenders; the
rights of persons deprived of liberty; the rights of Afro-descended peoples and
1 See IACHR, “Country Reports,” <https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/repo
rts/country.asp> (accessed January 5, 2022); and “Country Visits,” https://www.oas.org/en/iachr/act

ivities/countries_all.asp> (accessed January 5, 2022).
Claudio Grossman, Protecting Human Rights in the Americas In: The Impact of the Inter-American Human Rights System.
Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi,
Oxford University Press. © Claudio Grossman 2024. DOI: 10.1093/oso/9780197744161.003.0003
Protecting Human Rights in the Americas 35
freedom from racial discrimination; the rights of LGBTI persons; and economic
social, cultural, and environmental rights.2 Additionally, through the cases in its
reporting system, the Commission can determine if one or more rights in the
inter-American System have been violated.
While the Inter-American Commission and the Inter-American Court of
Human Rights (the Court) are both involved in handling petitions by those
claiming that a violation of human rights has taken place, individuals are only
able to petition the Commission, and only the Commission can refer a case to
the Court. After a review of its standards, the Commission amended its rules to
require consultation with the victims to determine whether a case should be sent
to the Court, thereby ensuring rights-holders would have a voice in the IACHR’s
decision.3 Additionally, once the case is presented to the Court, the victims are
entitled to appoint their own representatives.4
Those claims can be made either under the American Convention on Human
Rights5 (American Convention) or under the American Declaration on the
Rights and Duties of Man (American Declaration).6 Claims under the American
Convention allow the Commission to receive individual petitions, ipso facto,
once a State ratifies it. Under the American Declaration, the Commission
accepts claims from individuals against those nations by the mere fact of
OAS membership. The Commission’s decision on claims under the American
Declaration is final. In the case of the American Convention, if a country has
accepted the compulsory jurisdiction of the Court, the Commission is free to
decide if it will publish its decision or, in the case of noncompliance, will send a
case to the Court.
This chapter will look at the human rights impact of the Commission’s
functions and methods of work throughout its history. Across three general
historical phases, the Commission adapted and focused its role when neces-
sary according to the region’s particular historical moment. The individual,
State, and thematic levels of the Commission’s work played a greater or lesser
role throughout these phases, depending on their capacity to produce positive
change.
2 See IACHR, “Thematic Rapporteurships and Units,” <https://www.oas.org/en/iachr/mandate/
rapporteurships.asp> (accessed January 5, 2022).

3 IACHR, “Annual Report of the Inter-American Commission on Human Rights 2000,” OEA/
Ser./L/V/II.111, Doc. 20, para. 26 (rev. April 16, 2001), <https://www.cidh.oas.org/annual.eng.htm>

(accessed January 5, 2022).
4 IACtHR, “Rules of Procedure of the Inter-American Court of Human Rights,” November 18–28,
2009, arts. 25, 37, which asserts the right of victims and their representatives and allows for the Court
to appoint a representative if a victim does not have adequate representation, <https://www.corteidh.
or.cr/sitios/reglamento/nov_2009_ing.pdf> (accessed January 5, 2022).
5 ACHR, November 22, 1969, 1144 U.N.T.S. 143.
6 American Declaration of the Rights and Duties of Man, OEA/ Ser.L/V.II.23, Doc. 21, rev. 6
(1948).
36 Claudio Grossman
2. The Role of the Commission through Its Phases
2.1. Phase One: Maintaining a Human Rights Focus

among Dictatorships
Until the beginning of the 1980s, the Commission operated against the backdrop
of several dictatorships committing mass and gross human rights violations.
These regimes sought to inscribe an authoritarian narrative onto the region as an
alternative to human rights discourses. Under the guise of the National Security
Doctrine, dictators sought to eliminate internal opposition. Viewing their
opponents at worst as active agents in the destruction of “Western Civilization,”
or at best as naïve—by allowing themselves to be used by those who desired said
destruction—anyone who opposed these dictators were vulnerable to persecu-
tion.7 As a result, governments resorted to forced disappearances, torture, and
the withholding of due process while simultaneously denying the existence of
any human rights violations in an attempt to maintain their status in the interna-
tional community.
All over the region, authoritarian regimes resorted to mass and gross human
rights violations to eliminate or control any form of dissent. For instance, Chile’s
military dictatorship led by General Augusto Pinochet resorted to political re-
pression through mass arbitrary imprisonment, killings, torturing, and forced
disappearances numbering at least three thousand people. In Argentina, up to
thirty thousand people disappeared throughout the country from systematic tor-
ture and extrajudicial executions.8 These types of human rights violations were
widespread throughout the region, including in the Central American States of
Guatemala, El Salvador, and Honduras.9
Considering that there were no internal opportunities to expose and seek re-
dress for human rights violations, the Commission played an important role in
denouncing and documenting the scope and gravity of the crisis. The adoption
of the American Convention, signed in 1969 and entering into force in 1978,
gave the Commission further authority to identify specific human rights and
the concomitant obligations of the State parties.10 The Commission could easily
7 See Hal Brands, Latin America’s Cold War (Harvard University Press 2010), 70–78: he uses the
examples of Peru, Brazil, and Argentina to show how the military and government sought to defeat
threats to maintain their ideology under the National Security Doctrine.
8 See Amnesty International’s elaboration of their work on “Enforced Disappearances,” https://
www.amnesty.org/en/what-we-do/enforced-disappearances/.
9 On the other side of the political spectrum is Cuba. The Cuban government under Fidel Castro
codified repression into Cuban law, executed political opponents, and forced many others into labour
camps. For more details, see BBC News, “Fidel Castro: las muertes, desapariciones y detenciones que
se le atribuyen al líder de la Revolución Cubana” [2016], <https://www.bbc.com/mundo/noticias-
america-latina-38153673> (accessed January 5, 2022).
10 See Fernando Volio, “The Inter-American Commission on Human Rights Symposium: The
American Convention on Human Rights” [1980] 30 American University Law Review 65, 70.
articulate violations, and its primary instrument for manifesting this role was
using country reports. It developed extensive fact-finding investigations to prove
gross and mass violations that governments were denying.11
Country reports served as useful tools for the regional human rights system
by providing accurate information for the international community to create
pressure against perpetrators of violations, support victims, and push for the
denunciation of dictatorships. In this phase of its history the Commission
published reports on the human rights situations in Cuba, Haiti, the Dominican
Republic, El Salvador, Honduras, Uruguay, Argentina, Suriname, Paraguay,
Chile, Nicaragua, Colombia, Bolivia, and Guatemala.12 Exposing violations
contributed to the international isolation of these regimes, which in turn pro-
vided a basis for condemning them, supporting domestic opponents, and
helping to catalyze their eventual collapse.13
2.2. Phase Two: Individuals Bring Grievances

against Their Nations
The Commission and its role changed direction with the ushering in of newly
elected governments in the 1980s. These administrations inherited “normative
constraints” from the previous regimes, including amnesty and contempt laws
designed to stifle criticism against public figures. Moreover, jurisdiction to ad-
judicate human rights violations continued to be granted to military tribunals.14
Despite struggling to create spaces for domestic justice and to address past
human rights violations, the new administrations generally did not have the leg-
islative majorities to change these old norms15 For the citizens of these regimes
looking to have their grievances redressed, the domestic system still did not fully
serve their needs because the governments’ hands were tied.
However, the new political dynamic of democratization generated new
opportunities for the Commission. Elected governments allowed for greater ac-
countability and compliance with human rights standards. Civil society now had
a space to ask for compliance with these standards, and a multitude of organi-
zations came into existence as a result. Building on the fact-finding missions of
11 IACHR, “Country Reports” (n.1).

12 Ibid.
13 Cesar Sepulveda, “The Inter-American Commission on Human Rights (1960–1981)” [1982] 12
Israeli Yearbook on Human Rights 51, 52.

14 See John J. Moore, “Problems with Forgiveness: Granting Amnesty under the Arias Plan in
Nicaragua and El Salvador” [1991] 43 Stanford Law Review 733–735.

15 Tina Rosenberg, “Overcoming the Legacies of Dictatorship” [1995] 74 Foreign Affairs 141–
142: she argues that dictatorships never stay dead because the Latin American civilian governments
could not prevent human rights violations by security forces or continued threats from military
coups d’état.
38 Claudio Grossman
“phase one” that documented mass and grave violations, the Commission now
found a legal role through its petition system. All stakeholders now operated
through a system that allowed for the identification of individual violations.
This moved the human rights narrative from phase one, where the Commission
mostly documented mass and gross human rights violations, to a regional
legal system capable of individualizing specific violations. At this time, newly
elected governments, rejecting their predecessors’ dictatorial ideology, gen-
erally valued participation in the Commission’s supervisory procedures, and
individuals seeking to confront the legacies of dictatorship brought cases to the
Commission that dealt with forced disappearances, military tribunals, amnesty
laws, reparations, and freedom of expression.
A representative example of the successes of the individual petition system is
Barrios Altos v. Peru, decided by the Inter-American Court in 2001.16 Peru had
carried out extrajudicial killings in its fight against terrorism and then protected
its perpetrators through amnesty laws. On November 3, 1991, six members of
the Peruvian military indiscriminately opened fire on a fundraising party in
Lima, killing fifteen and injuring four.17 The perpetrators were linked to a divi-
sion of the army called Grupo Colina, which acted as a death squad.18 Peru sus-
pended investigations into the incident after passing Law No. 26479, the amnesty
law exonerating human rights violators from 1980 to 1995.19 The case was then
brought to the Commission in 1995, where it rejected Peru’s argument that am-
nesty was an allowable extraordinary measure used to support the fight against
terrorism.20 Having rejected the argument, the Commission sent the case to the
Court, which held that Peru had violated the American Convention and the
rights to life (Article 4), personal integrity (Article 5), due process (Article 8),
and access to justice (Article 25).21 The Commission’s actions catalyzed a fight
against impunity in Peru and rejected the idea that the most atrocious crimes can
be shielded from investigation or punishment.
This phase in the Commission’s history evolved its mandate and built a
legal framework into the human rights narrative. For the first time, a variety of
stakeholders created a community of practice in which civil society, public in-
terest lawyers, activists, victims, and States could resolve domestic issues on an
international platform. The Commission continued to fight amnesty laws and
create regional precedents for the obligation to investigate.22 While the rejection
16 Barrios Altos v. Peru [2001], IACtHR, Ser. C No. 75, para. 2 (b).
17 Ibid.
18 Ibid., para. 2 (d).
19 Ibid., para. 2 (i).
20 Ibid., para. 41: rejecting all amnesty provisions as inadmissible because “they are intended to
prevent the investigation and punishment of those responsible for serious human rights violation.”
21 Ibid., para. 42.
22 See Lisa J. Laplante, “Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice
Schemes” [2009] 49 Virginia Journal of International Law 915, 938: citing Garay Hermosilla v. Chile
of amnesty did not immediately result in complete accountability for every

human rights abuse, it did create a legal platform for the peaceful resolution of
violations and the legitimacy of human rights concerns that continued in other
Commission cases. States such as Chile, Peru, Argentina, and Colombia eventu-
ally abolished, or reinterpreted in different degrees, their positions on amnesty.23
2.3. Phase Three: Greater Inclusion and Participation in the

Political System
The third and current phase once again refocused the Commission’s goals and
functions toward democracy, participation, and inclusion. The Commission
still struggles to both expand democracy for all people and prevent existing
democracies from backsliding into authoritarianism.24 Notwithstanding the
progress in the region, serious issues remain in the Americas: inequality, corrup-
tion, lack of economic opportunities, and access to quality healthcare and educa-
tion.25 Exclusion and discrimination on the basis of ethnicity, gender, or sexual
[1996], Case 10.843, IACtHR, Report No. 36/96, OEA/Ser.L/V/II.95, Doc. 7, para. 105; Herrera
v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309, 10.311, IACtHR, Report No. 28/92, OEA/
Ser.L/V/II.83, Doc. 14, para. 50 (1992–1993): “[C]‌oncluding that amnesty laws violate the judicial
guarantees embodied in Articles 8 and 25 of the American Convention”; Mendoza v. Uruguay, Cases
10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, 10.375, IACtHR, Report No. 29/92, OEA/
Ser.L/V/II.83, Doc. 14, para. 54 (1992–1993); Massacre Las Hojas v. El Salvador [1992–1993], Case
10.287, IACtHR, Report No. 26/92, OEA/Ser.L/V/II.83, Doc. 14, para. 83: “[D]eclaring that am-
nesty laws in El Salvador contravene the American Convention”; IACHR, “Report on the Situation
of Human Rights in Peru,” March 12, 1993, OEA/Ser.L/V/II.83, Doc. 31: One element that has been
particularly disturbing to the Commission is that up until 1990, no member of the security forces
had been tried and punished for involvement in human rights violations, <http://iachr.org/country
rep/Peru93eng/background.htm#f.%20Impunity> (accessed January 5, 2022); IACHR, “Annual
Report of the Inter-American Commission on Human Rights 1985–1986,” OEA/Ser.L/V/II.68, Doc.
8, rev. 1, Chapter IV: “[A]ddressing political transitions in the region and attempting to strike a bal-
ance between peace and the state’s obligation to investigate,” <http://cidh.org/annualrep/85.86eng/
chap.4.htm> (accessed January 5, 2022).
23 See Louise Mallinder, “The End of Amnesty or Regional Overreach: Interpreting the Erosion
of South America’s Amnesty Laws” [2016] 65(3) International and Comparative Law Quarterly 645,
650–653: She shows the legal strategies used to reinterpret amnesty laws to enforce the obligation
to investigate. However, there are some cases in which issues of amnesty are still ambiguous or con-
flicting. For example, Uruguay passed Law 18.831 in 2011 to restrict amnesties for crimes com-
mitted during its dictatorship, yet the Uruguay Supreme Court repealed key provisions of the law
in 2013, reviving the issue of amnesty; see Jo-Marie Burt and Francesca Lessa, “Recent Sentence by
Uruguayan Supreme Court Obstructs Search for Truth and Justice” [2013], Washington Office on
Latin America, <https://www.wola.org/analysis/recent-sentence-by-uruguayan-supreme-court-
obstructs-search-for-truth-and-justice/> (accessed January 5, 2022).
24 Guillermo O’Donnel, “Delegative Democracy” [1994] 5 Journal of Democracy 55, 56: he
discusses the phenomenon where charismatic figures assume presidency through free elections that
governs without the traditional counterweights of representative democracies.
25 See Moisés Naím and Brian Winter, “Why Latin America Was Primed to Explode” [2019]
Foreign Affairs, <https://www.foreignaffairs.com/articles/central-america-caribbean/2019-10-29/

why-latin-america-was-primed-explode> (accessed January 5, 2022): they highlight the ways many
40 Claudio Grossman
orientation permeate the region.26 Facing these serious challenges alongside a

general disenchantment toward political institutions has been made harder as
alternative narratives have arisen, including authoritarian and populist claims to
be better prepared to solve the challenges facing the region than democratic and
human rights approaches.27
This struggle to maintain the human rights narrative plays out differ-
ently across Latin American. Venezuela’s Nicolás Maduro regime questions
the human rights position by using the language of inequality to delegitimize
the American Convention, presenting an alternative narrative to economic
disparities by pushing for a vanguardist ideology of centralization and pop-
ulism in governmental power.28 Similarly, upheavals in Bolivia and Nicaragua
stem from disputes around political power and authoritarian actions.29 In Brazil,
Jair Bolsonaro’s regime utilizes extreme nationalist and authoritarian language
to discredit human rights approaches to societal ills.30 Equally, President Nayib
Bukele in El Salvador has resorted to similar measures.31
In 2019, Colombia, Ecuador, and Chile witnessed a number of explosive
episodes of social unrest of varying magnitudes relating to issues about pensions,
Latin American nations faced economic inequality, corruption, failures of healthcare, security, infra-
structure, and education, which created the conditions for the social upheavals seen today.
26 See IACHR, “Advances and Challenges Towards the Recognition of the Rights of LGBTI persons
in the Americas,” December 7, 2018, OEA/Ser.L/V/II.170, Doc. 184, 127–128: noting the expansion
of anti-LGBTI groups threatens regression of LGBTI rights and reiterates States’ lack of reliable sta-
tistics reflecting the true nature of discrimination against these individuals, which further facilitates
their discrimination; María Victoria Murillo, “Why Is South America in Turmoil? An Overview”
[2019] Americas Quarterly, <https://www.americasquarterly.org/content/why-south-america-turm
oil-overview> (accessed January 5, 2022): redistribution in Latin America led to social polarization
on class, ethnicity, or gender, then disenchantment rose with corruption scandals throughout the
region.
27 See Naím and Winter (n.25).
28 See “Venezuela Denounces American Convention on Human Rights as IACHR Faces Reform”
[2019] International Justice Resource Center, <https://www.ijrcenter.org/2012/09/19/venezuela-

denounces-american-convention-on-human-rights-as-iachr-faces-reform/> (accessed January
5, 2022).
29 See Gremaud Angee and Joshua Berlinger, “Bolivia’s Death Toll Rises as Protests Continue”
[2019] CNN World, <https://www.cnn.com/2019/11/20/americas/bolivia-unrest-intl-hnk/index.

html> (accessed January 5, 2022); see also UN News, “Repression, Use of Force Risk Worsening
Bolivia Crisis: UN Human Rights Chief ” [2019], <https://news.un.org/en/story/2019/11/1051531>
(accessed January 5, 2020); and “UN Calls on Nicaragua to End ‘Persistent Repression of Dissent’ ”
[2019] The Guardian, <https://www.theguardian.com/world/2019/nov/19/un-nicaragua-persist
ent-repression-hunger-strike?fbclid=IwAR0_ls6WieW9ngAiqAqJM44AdnL95QrxJayKIKKy3ygB
wOnhw1UI1Xlflxo> (accessed January 5, 2020).
30 See David Miranda, “Bolsonaro Wants to End Democracy in Brazil. Here’s One Way He Could
Do It” [2019] The Guardian, <www.theguardian.com/commentisfree/2019/nov/21/bolsonaro-bra

zil-military-dictatorship-violence> (accessed January 5, 2022).
31 See Natalie Kitroeff, “Young Leader Vowed Change in El Salvador but Wields Same Heavy
Hand” [2020] New York Times, <https://www.nytimes.com/2020/05/05/world/americas/el-salvador-

nayib-bukele.html> (accessed January 5, 2022).
access to healthcare, and quality education.32 In those States, the legitimacy of

human rights institutions, norms, and procedures have not been disputed. These
States have functioning judiciaries and democratically elected governments but
have not completely fulfilled their human rights obligations, including those
concerning social inclusion. The present goal is for the inter-American System
to present a human-rights-grounded alternative to the various types of author-
itarian and populist approaches that are challenging the rule of law. Social and
economic inclusion and the prohibition of discrimination, including on the basis
of gender and sexual orientation, are essential components of this new phase in
the protection of human rights in the region.
To address these various kinds of serious human rights challenges, the
Commission maintains its legacy by resorting to the instruments developed in
the three separate phases of its existence. Country reports and in loco visits are
now used to ensure democracies do not backslide toward the authoritarianism
of the past or toward various manifestations of populism. Country reports allow
for a general analysis of the ongoing internal processes impacting human rights.
For example, the Commission has broken down the human rights situation in
Venezuela into the facts and their impact on several facets of Venezuelan life,
including the democratic–institutional system, social protest and the freedom
of expression, violence and citizen security, poverty, and economic, social,
cultural, and environmental rights (with recommendations for each).33 The
accompanying websites for these reports illustrate the Commission’s push for
change by highlighting particularly alarming human rights situations and its
recommendations to create change.34 For human rights violations that stem
from economic based social unrest (as in Chile) States, with few exceptions, con-
sent to in loco visits where the Commission will meet with representatives from
civil society and government officials to understand the human rights situation
32 See Steven Grattan, “ ‘We’ll Continue Until Duque Listens’: Colombians Hold 3rd Strike’
[2019] Al Jazeera, <https://www.aljazeera.com/news/2019/12/continue-duque-listens-colombians-

hold-3rd-strike-191204132527178.html> (accessed January 5, 2022): “Protesters are angry over a
wide range of issues from the poor health system, inadequate pensions, violence, inequality, cor-
ruption and the weak implementation of the 2016 peace deal”; Jimmy Langman, “From Model to
Muddle: Chile’s Sad Slide into Upheaval” [2019] Foreign Policy, <https://foreignpolicy.com/2019/
11/23/chile-upheaval-protests-model-muddle-free-market/> (accessed January 5, 2022): “From
Santiago to other cities and towns such as Concepción and Valparaiso, anger over long-festering
economic inequality issues, low wages, meager pensions, and a rising cost of living have Chileans
pouring into the streets in protest.”
33 IACHR, “Situation of Human Rights in Venezuela: Democratic Institutions, the Rule of Law and
Human Rights in Venezuela,” December 31, 2017, OEA/Ser.L/II, Doc. 2017.

34 See IACHR, “Situation of Human Rights in Venezuela,” <https://cidhoea.wixsite.com/venezu
ela/; and IACHR, “Nicaragua,” https://www.oas.org/en/iachr/activities/visits/nicaragua2018.asp>

42 Claudio Grossman
in the country.35 This cooperation demonstrates the Commission’s legitimacy

and monitoring role for member States.
Beyond the maintenance of the human rights narrative, the Commission also
moves democracies forward by pushing for expansive equality and inclusion
measures.36 Ensuring the participation and equal treatment of every person in
the region requires connecting the human rights situations of each State with
that of their neighbors. The Commission accomplishes this goal through the-
matic reports by Special Rapporteurs. The Commission thus far has created thir-
teen Rapporteurships to address specific human rights challenges in the Western
Hemisphere.37 Moreover, while most Rapporteurships operate under a member
of the Commission, the Commission itself has two Special Rapporteurships
that operate as autonomous offices led by independent experts: the Special
Rapporteurship for Freedom of Expression and the Special Rapporteurship on
Economic, Social, Cultural, and Environmental Rights.
The Rapporteurships provide in-depth analyses on important challenges and
recommend public policies for the region in thematic areas, as well as sometimes
participating in individual cases. Each thematic report publishes standards for
the region to follow while bringing to light systems of discrimination, oppres-
sion, and human rights violations. They conduct extensive investigations, meet
with affected groups, establish legal and policy standards, educate the public, and
encourage the implementation of best practices. Working in conjunction with
individual petitions, the Commission helps catalyze change in domestic systems
through landmark decisions and by keeping the human rights narrative on the
agenda of each State in the region.38
Specifically, the Commission’s thematic reports and related individual
petitions improve the human rights situations of targeted groups of people. For
example, the Commission strengthened Indigenous rights in the region through
a combination of individual cases and thematic reports pressuring States to
35 IACHR, Press Release No. 312/19, “IACHR Completes Preliminary Visit to Chile,” November
29, 2019, https://www.oas.org/en/iachr/media_center/PReleases/2019/312.asp> (accessed January

5), 2022: acknowledging the value of the Chilean government’s cooperation with the Commission’s
efforts.
36 Lopes Olsen, Ana Carolina, and Katya Kozicki, “The Role Played by the Inter-American Court
of Human Rights in the Dialogical Construction of an Ius Constitutionale Commune in Latin

America” [2019] 9 Brazil Journal of Public Policy 307.
37 See IACHR, “Thematic Rapporteurships and Units,” <https://www.oas.org/en/iachr/mandate/
rapporteurships.asp> (accessed January 5, 2022).

38 See Jorge E. Taiana, “The Legacy and Current Challenges of the Inter-American Commission on
Human Rights” [2013] 20 Human Rights Brief 42, 43, 44: demonstrates the strengthening of rule of
law, gender equality, and Indigenous rights with examples; legislation adopted after the Commission’s
report on domestic violence in Brazil; marriage rights recognition in Guatemala; training on gender
discrimination and violence against women in Bolivia; tens of thousands of hectares awarded in title
to Indigenous communities in Nicaragua and Paraguay; and Ecuador’s acceptance of international
responsibility for violating Indigenous rights.
make changes. The push is reflected in Mayagna (Sumo) Awas Tingni Community
v. Nicaragua, in which the Commission brought a case to the Court when the
Nicaraguan government refused to implement the titling and demarcation of
community land.39 The decision of the Court was the first to recognize a com-
munal property right and Indigenous law as providing for enforceable rights
and obligations.40 The Commission’s decision, and decisions like it, coupled with
the Commission’s creation of a Special Rapporteur on the Rights of Indigenous
Peoples (its first Rapporteurship) set a standard for human rights and fought
against the social exclusion of Indigenous populations by addressing the high
rate of poverty and illiteracy. Additionally, the Commission investigates country-
specific situations and the general rights of Indigenous populations through
in loco visits and by investigating more narrowly defined groups of people,
such as Indigenous women or those in voluntary isolation.41 For example, the
Commission recently published a report on the human rights situation of the
Indigenous and tribal peoples of the Pan-Amazon region.42 The Commission’s
role in the situation of Indigenous rights in the Americas demonstrates how each
of the Commission’s available instruments are used together to promote human
rights during the current phase of its work.43
As shown in the third phase, the individual petitions and country report
mechanisms are valuable tools for encouraging and enforcing human rights and
democratic standards that seek to address the challenges facing the region. Issues
relating to gender, discrimination, social and economic exclusion, sexual orien-
tation, the freedom of expression and assembly, Indigenous populations, and the
identification of States’ positive duties all go through the petition system. In fact,
the petition system has continued to grow: in 1997, the Commission received
435 petitions, compared to the 3,034 it received in 2019.44 Petitioners seek both
the abstention of the State from violating human rights and positive action to
contribute to a situation where everyone would count as a full member of society.
39 The Mayagna (Sumo) Awas Tingni Community v. Nicaragua [2001], IACtHR, Ser. C No. 79;
see also S. James Anaya and Claudio Grossman, “The Case of Awas Tingni v. Nicaragua: A Step
in the International Law of Indigenous Peoples” [2002] 19 Arizona Journal of International and
Comparative Law 1.
40 Ibid.
41 See IACHR, “Indigenous Peoples: Thematic Reports/Studies,” <https://www.oas.org/en/iachr/
indigenous/reports/thematic.asp> accessed January 5, 2022.

42 IACHR, “Situation of Human Rights of the Indigenous and Tribal Peoples of the Pan-Amazon
Region,” September 29, 2019, OAS/Ser.L/V/II, Doc. 176.

43 See IACHR, “Missing and Murdered Indigenous Women in British Columbia, Canada,”
December 21, 2014, OEA/Ser.L/V/II, Doc. 30/14: demonstrates an example outside of Latin America
of the Commission’s role examining the situation of the Indigenous, in this case the murder of
Indigenous women.
44 See IACHR, “Annual Report 2019,” Chapter II: The Petitions, Cases, and Precautionary
Measures System, 62, <http://www.oas.org/en/iachr/docs/annual/2019/docs/IA2019cap2-en.pdf>

44 Claudio Grossman
The decisions that come out of the petition system are crucial for the protection
of and compliance with human rights by individualizing situations and deciding
on reparations, including material and moral compensation, measures of sat-
isfaction, and guarantees of nonrepetition.45 The Commission and the Court’s
comprehensive reparations system not only takes into account the nature of the
human rights violation and the victims and society’s interest in full compliance
with the rule of law but also expands the definition of victim to encompass direct
and indirect as well as collective and societal victims.46 This is a process that is
currently ongoing and is not immune from controversy by those who would like
to stick with the classic method of solely addressing civil and political rights.
It is important to note that the phases identified in this chapter represent gen-
eral trends in the Commission’s role throughout its existence. Historical events
affecting the Commission can lead to reversions and the intermingling of phases
since different States may be at different stages in the development of human
rights norms and practices.
3. Challenges for the Commission in Executing

Its Functions
It is essential for the execution of its functions that the Commission maintains
its independence. This independence is vital for the Commission’s legitimacy
and ensures its ability to pursue its broad mandate. As a body of the OAS, the
Commission is bound by rules dictated by member States and their funding, and
member States have the ability to limit the Commission’s resources.47 During
the second phase, the Commission enjoyed a higher willingness from States to
participate in its processes as newly elected governments saw the value of the
Commission in assisting them with dismantling the legacies of dictatorship.
Now there is more tension, as the Commission’s work toward the full realization
of human rights intersects with elected governments that value their own sover-
eign prerogatives.48 An example of this disagreement is the application of human
45 Douglass Cassel, “The Expanding Scope and Impact of Reparations Awarded by the Inter-
American Court of Human Rights” [2007] 7 Revista do Instituto Brasilerio de Direitos Humanos 92–93.
46 See key developments in case law: Lhaka Honat Association v. Argentina [2020], IACtHR, Ser.
C No. 400; Artavia Murillo v. Costa Rica [2012], IACtHR, Ser. C No. 257; Rosendo Cantú v. Mexico
[2010], IACtHR, Ser. C No. 216; Fernández Ortega v. Mexico [2010], IACtHR, Ser. C No. 215;
Gonzalez v. Mexico [2009], IACtHR, Ser. C No. 205; Raxcacó Reyes v. Guatemala [2005], IACtHR, Ser.
C No. 133; Olmedo Bustos v. Chile [2001], IACtHR, Ser. C No. 73.
47 See IACHR, “Strategic Plan: 2017–2021,” March 20, 2017, OEA/Ser.L/V/II.161, Doc. 27/17,
22: “The autonomy and independence of the Commission are compromised when they depend on
voluntary contributions each year, as this affects its possibilities for stability and predictability.”
48 Ximena Soley and Silvia Steininger, Parting Ways or Lashing Back? Withdrawals, Backlash and
the Inter-American Court of Human Rights, MPIL Research Paper No. 2018-01, <https://ssrn.com/
abstract=3103666> (accessed January 5, 2022).
rights norms by the inter-American System’s supervisory organs to address so-

cial and economic problems in the region.49
The tension existing in the System touches upon the Commission’s mandate
to issue precautionary measures, which allow it to rapidly respond to situations
with immediate risk of irreparable harm. The need for expedited processing to
avoid irreparable harm has resulted in tensions with governments that believe
that expedited processes, to a certain extent, limit their ability to fully express
their views.50 Another source of tension is the need for full compliance with the
Commission’s and the Court’s decisions. Although there are positive levels of
compliance in most cases of human rights violations, achieving the investigation,
prosecution, and punishment of those involved remains a fundamental chal-
lenge. However, while these tensions have an impact on the Commission’s tasks,
they have not deterred it from continuing to fulfill its mandate by accepting in-
dividual cases at an increasing rate, expanding the topics of its thematic reports,
and demanding that States fully comply with human rights obligations.51
Additionally, the constraints and challenges existing in the System have
resulted in a significant backlog and delays. On average, cases in front of the
Commission can take six and a half years from the submission of the petition to
a final merits decision.52 While the Commission has not set time limits on cases,
it has implemented measures to combat this challenge by deciding to dedicate
special attention and resources to the backlog. Especially in the last several years,
it has achieved notable advances in addressing delays in the initial evaluation
of petitions determining whether they meet the requirements for processing. In
December 2014, the Commission formed a Procedural Delay Group to review
and evaluate 6,405 petitions.53 At the same time, the Commission introduced the
49 IACHR, “Report on Poverty and Human Rights in the Americas,” September 7, 2017, OEA/
Ser.L/V/II.164, Doc. 147, 151–169: addressing the key successes and challenges in reducing pov-
erty within states in the region; see also Urrutia Laubreaux v. Chile [2020], IACtHR, Request for
Provisional Measures: deciding on provisional measures for Chile after the Chilean courts penalized
judge Daniel Urrutia Laubreaux for declaring arrests of some protestors illegal.
50 See IACHR, “Reform Process 2012— Consultation on Module II: Precautionary Measures,”
<https://www.oas.org/en/iachr/consultation/2_measures.asp> (accessed January 5, 2022).
51 See IACHR, “Annual Report 2018,” Chapter II: System of Individual Petitions and Cases,
73: petitions approved for reports on the merits fluctuated from a height of thirty-eight in 1999 to
its lowest of twelve in 2012, and rose to forty-three in 2018, <https://www.oas.org/en/iachr/multime
dia/statistics/statistics.html> (accessed January 5, 2022); IACHR, “Thematic Rapporteurships and
Units”: topics both extended to various areas such as freedom of expression and the internet to more
specific reports on internal displacement in the Northern Triangle of Central America, <https://
www.oas.org/en/iachr/mandate/rapporteurships.asp> (accessed January 5, 2022); and IACHR,
“Country Reports”: there have been twelve country reports in the last decade, available at <https://
www.oas.org/en/iachr/reports/country.asp> (accessed January 5, 2022).
52 Human Rights Clinic, University of Texas School of Law, “Maximizing Justice, Minimizing
Delay: Streamlining Procedures of the Inter-American Commission on Human Rights” [2011],

<https://law.utexas.edu/wp-content/uploads/sites/11/2015/04/2012-HRC-IACHR-Maximizing-
Justice-Report.pdf> (accessed January 5, 2022).
53 IACHR Press Release, No. 257/ 18, “IACHR completes 2 years of its Procedural Backlog
Reduction Program and announces new actions approved following a second round of its
46 Claudio Grossman
Registration Group to review petitions within a year of their filing. Furthermore,

the Commission joins petitions and cases together, when permitted, to conserve
resources. Additionally, the Commission streamlined and simplified some pro-
cedural phases, such as its admissibility report process, to remove repetitions
and unnecessary delays.54 An important step to address these challenges is the
Commission’s Strategic Plan for 2017–2021, including the need to deal with ad-
missibility and merits.55 Following the completion of the plan, the Commission
undertook a detailed monitoring of its results and found that, over the five years
of implementing the plan, the IACHR “improved and modernized institutional
management, furthered the results-based approach, obtained historic gains in
each of its objectives, and attained results that had a significant impact on the
countries of the region.”56 During the relevant period, the Commission saw a
412 percent increase in the number of admissibility reports were approved, a
324percent increase in the number of merits reports approved, and a 181percent
increase in the number of cases referred to the Inter-American Court.57
An example of the Commission’s ability to rapidly respond to new challenges
was its response to the COVID-19 pandemic. The Commission instituted its
Rapid and Integrated Response Coordination Unit, known by its Spanish ac-
ronym SACROI, to address its institutional capacity during the crisis. The
group’s work plan included monitoring and analyzing State measures, precau-
tionary measures, the coordination of petitions and cases relevant to the crisis,
training of State officials to strengthen capacity, public communication vis-à-vis
the international community, and information exchanges with international
and civil society organizations.58 The Commission issued weekly statements
and resolutions addressing key concerns as the crisis continued to develop, and
switched to hosting its meeting online. Webinars on issues such as the right to
health and national institutions helped provide information to the region and
build conversations around the pandemic.59 The crisis created by COVID-19 laid
participatory process of consultations,” 8 December 2019: (describing two-year long review process
and measures implemented as a result, available at <https://www.oas.org/en/iachr/media_center/
PReleases/2018/257.asp> (accessed January 5, 2022).
54 Ibid.
55 See IACHR, “Strategic Plan: 2017–2021” (n.46), 23: acknowledges the need to rethink how
far the Commission’s recommendations go towards member states’ compliance and creating meas-
urable, uniform methods to evaluate compliance; the 2019 annual report shows progress: 151 ad-
missibility reports and 62 merits reports, but not enough to anticipate a timely response to current
numbers. As of that report, there were 4,757 cases pending.
56 IACHR, “Strategic Plan 2023–2027”, OAE/Ser.L/V/II.185 at 18 (October 31, 2022).
57 Id. at 19.
58 See IACHR, “SACROI Covid-19,” <https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/
sacroi_covid19/default.asp> (accessed January 5, 2022).

59 See IACHR Webinars, <https://www.oas.org/es/cidh/sacroi_covid19/webinars.asp> (accessed
January 5, 2022).
bare the issues of social inequality and exclusion that the System has attempted to
address from a human rights perspective. The rapid reaction by the Commission
established the presence of the human rights System and reaffirmed the value of
human rights norms during emergencies and crises.
However, another continuing challenge is the region’s struggle to combat
increasing levels of violence and authoritarian tendencies, which makes the
Commission’s regional legitimacy paramount. Accordingly, the different meas-
ures the Commission has taken to respond to the human rights needs of the re-
gion and improve its procedures are essential. It is important to recognize that
this effort does not rely entirely on the Commission. The Commission has been
and continues to be an important player, but it does not operate in a vacuum: the
behavior of States; the role of civil society, non-governmental organizations
(NGOs), and academia; and ideological trends concerning the value of human
rights and democracy continue to affect the Commission and the inter-American
System as a whole.
The Inter-American Commission on Human Rights has played various roles

throughout its history. Its three interrelated phases display an evolution of
human rights as the Commission has confronted dictatorships, embraced new
democracies, and searched for a human rights solution to the challenges facing
the region. As stated before, there are elements of those phases that continue to
be present in region. This is illustrated, for instance, in a possible reversion to au-
thoritarianism in some countries. To confront those challenges, the Commission
is able resort to all the mechanisms it developed in its history, including country
and thematic reports, in loco observations, and individual petitions.
By centering itself on human rights obligations acquired by States, the
Commission has consistently promoted and protected human rights standards
in each phase of its history by employing different instruments appropriate for
the historical moment. First, it began a forceful effort to maintain and secure
notions of human rights in the region during a period plagued by dictatorships
and mass human rights violations. In this phase, there were generally no domestic
legal avenues for victims of dictatorial regimes.60 Accordingly, the Commission
in the main resorted to country reports. Second, as the Western Hemisphere
moved from dictatorships to democracies, a space opened up to allow the
Commission to address individual complaints through its case system.61 Its
60 See supra, section 2.1.

48 Claudio Grossman
decisions catalyzed change domestically by bringing forth direct consequences

for violations of human rights. The case system was essential in dealing with the
legacy of dictatorships, as well as with the need to create more inclusive societies.
Today, the Commission is countering the resurgence of authoritarian and popu-
list ideologies through country reports and individual petitions.62 Additionally,
the Commission wields the powerful instrument of thematic reports to formu-
late general observations and influence public policies for the promotion and
protection of human rights in the region.63
The challenges to the Commission’s independence and the limited State coop-
eration in certain areas conspire against the full realization of the Commission’s
goals of protecting and promoting human rights.64 The case system is
underfunded65 and it suffers from unacceptable delays,66 leading to justifiable
criticisms from victims and NGOs. The Commission’s broad range of functions
led to arguments that these roles are too broad and contradict each other.
However, as seen during 2019, when comparing the different intensities of social
protests in Venezuela, Bolivia, and Nicaragua with protests in Chile, Ecuador,
and Colombia,67 a broad mandate appears to be justified. The reality for human
rights violations in the region requires an adaptable mandate and narrowing the
Commission’s operational capacity would contradict that goal.
The scope and character of the Commission is important to allow for changing
domestic circumstances. This chapter presented the three historical phases,
with each demonstrating the variety of the Commission’s roles and necessary
techniques used to tackle the historical changes in the region. Derived from its
mandate to observe and protect human rights, the Commission helped foster
social, cultural, and legal change in the human rights conditions throughout the
region. However, the future of the Inter-American System is not guaranteed.
The threats posed by ideologies that deny the value of human rights cannot be
underestimated. Yet vibrant civil societies, existing State support within the re-
gion, and the Commission’s adaptability, validity, and resilience create an impor-
tant space and legitimacy for the human rights system.

63 Ibid.
64 Flávia Piovesan, “Ius Constitutionale Commune latinoamericano en derechos humanos e
impacto del Sistema Interamericano: rasgos, potencialidades y desafios,” in Armin von Bogandy,
Héctor Fix Fierro, and Mariela Morales Antoniazzi (eds.), Ius Constitutionale Commune en América
Latina. Rasgos, potencialidades y desafíos (IIJ-UNAM-MPIL-IIDC 2014), 61–84.
65 See IACHR, “Strategic Plan: 2017–2021” (n.46), 22.
66 ibid.
67 See supra section 2.3.
I.3
Inter-American Human Rights System
Sociopolitical, Institutional, and Cultural Dimensions of
Its Transformative Impact
By Mariela Morales Antoniazzi, Flávia Piovesan, and
Júlia Cortez da Cunha Cruz
1. Introduction
The purpose of this chapter is to analyze the sociopolitical, institutional, and cul-
tural dimensions of the transformative impact of the Inter-American Human
Rights System (Inter-American System, or IAHRS). Three main questions guide
our analysis:
1. Why do we need the Inter-American System?

2. What are the key structuring components of the Inter-American System?
3. How can one understand transformative impact, taking into account soci-
opolitical, institutional, and cultural dimensions?
The WHY question prompts our in-depth analysis of the unique regional con-
text, in order to understand the structural and contemporary challenges facing
the Americas, which have been aggravated during the COVID-19 pandemic.
The WHAT question leads us to describe the central structuring components
of the Inter-American System. We emphasize the “victim-centric approach,”
inter-American standards (the inter-American corpus juris), and comprehensive
reparations. Finally, the HOW question requires us to address the sociopolitical,
institutional, and cultural elements that enable the Inter-American System to
foster structural transformations in the national societies that adhere to it.1
1 According to Par Engstrom, “Analytically, there is an important distinction between ‘compli-
ance’ and ‘effectiveness’ 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.”
Mariela Morales Antoniazzi, Flávia Piovesan, and Júlia Cortez da Cunha Cruz, Inter-American Human Rights System
In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan,
Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press.
© Mariela Morales Antoniazzi, Flávia Piovesan, and Júlia Cortez da Cunha Cruz 2024.
DOI: 10.1093/oso/9780197744161.003.0004
50 Mariela Morales Antoniazzi et al.
These driving questions enable us to approach the issue of the IAHRS’s impact
from a holistic perspective, placing it in context with the challenges and tensions
of the region. We argue that the Inter-American System reflects a regional sub-
stantive commitment to human rights that serves as a complementary tool for
national mechanisms, and therefrom derives its emancipatory role and impact.
Three constitutive elements drive this impact: institutional, sociopolitical, and
cultural.
The institutional element refers to institutions and norms involved in the
implementation of inter- American standards, for example, procedures for
the implementation of Inter-American Court of Human Rights (the Court, or
IACtHR) decisions or for Inter-American Commission on Human Rights (the
Commission, or IACHR) engagement with situations requiring attention. The
sociopolitical element highlights the actions of relevant stakeholders who mo-
bilize institutions from within or pressure them from outside. The cultural ele-
ment provides the social basis that catalyzes—or impedes—actions related to the
IAHRS. These three elements interact continuously, in a dynamic process that
varies according to the context. Sometimes, impact will appear to be a direct re-
sult of effective implementation mechanisms. At other times, the sociopolitical
and cultural dimensions will appear to have a more definitive role. In any case,
however, understanding the impact of the IAHRS requires an analysis of how all
three elements, institutions, politics and culture, interacted.
2. WHY Do We Need the Inter-American System?
2.1. Structural Challenges
In Latin America, 30.8 percent of the population lives in poverty and 11.5 percent
in extreme poverty.2 The region has some of the highest levels of inequality in the
world.3 Systematic, historical, and structural patterns of discrimination, exclu-
sion, and violence affect Afro-descendant and Indigenous peoples in the region.
We see the political, institutional, and cultural dimensions of impact as the different components
that can be used to identify the “effectiveness” of the Inter-American Human Rights System; Par
Engstrom, The Inter-American Human Rights System: Impact Beyond Compliance (Springer 2019).
2 ECLAC, “Social Panorama of Latin America” (2019), <https://repositorio.cepal.org/bitstream/
handle/11362/44989/1/S1901132_en.pdf> (accessed February 22, 2022(.

3 In 2017, seven of the twenty countries with the highest Gini coefficient were in Latin
America: Costa Rica, Panama, Brazil, Colombia, Bolivia, Guatemala, and Honduras. The Gini coeffi-
cient is the measure of the deviation of the distribution of income among individuals or households
within a country from a perfectly equal distribution. A value of zero represents absolute equality,
whereas a value of 100 indicates absolute inequality. For more details, see <http://hdr.undp.org/en/
composite/IHDI> (accessed February 22, 2022).
Indigenous peoples and Afro-descendants are disproportionately represented

among the poor and the extremely poor.4 Women are also overrepresented in
these groups due to the feminization of poverty.5
The region is also the most violent in the world. Latin America represents
8 percent of the world’s population and 33 percent of the world’s homicides, with
an average homicide rate that corresponds to three times the global average.
Eight of the world’s ten countries with the highest homicide rates are located in
Latin America, as well as forty-three of the fifty most homicidal cities.6 These
endemic levels of violence include not only criminal violence but also acts com-
mitted by repressive State forces and selective political violence against human
rights defenders, political opponents, and independent journalists.7
At the same time, the region faces persistent challenges relating to the rule
of law. Over half of the countries in the region are placed in the bottom half
of Transparency International’s Corruption Perception Index (2018),8 the
Worldwide Governance Indicators Project (2018),9 and the Rule of Law Index
(2020).10 The 2018 Latinobarómetro survey found that Latin Americans gener-
ally classify corruption as the fourth biggest problem in the region and that it was
thought to be the first or second most serious problem in seven11 out of eighteen
countries. Weak governance structures are associated not only with violations of
4 According to the World Bank, Indigenous peoples are overrepresented among those living in
extreme poverty in several countries in Latin America. Individuals in Indigenous households also
have lower chances of completing primary and secondary education, leading Indigenous peoples to
extreme underrepresentation in high-skill jobs (The World Bank, Indigenous Latin America in the
Twenty-First Century [World Bank 2015]). At the same time, Afro-descendants are overrepresented
among those subject to poverty and under-represented among those who have access to higher ed-
ucation (The World Bank, Afro-descendants in Latin America: Toward a Framework of Inclusion
[World Bank 2018]).
5 This term was coined by sociologist Diane Pearce in 1978, in an article entitled “Feminization
of Poverty: Women, Work and Welfare.” Pearce used empirical data to demonstrate that US women
suffered higher degrees of poverty and dependence on the welfare system in comparison with US
men. Diane Pearce, “The Feminization of Poverty: Women, Work and Welfare” [1978] 11 Urban
Social Change Review 28.
6 Data available in the Igarapé Institute report entitled “Citizen Security in Latin America: Facts
and Figures,” released in April 2018. Igarapé Institute, Strategic Paper 33, 2015.
7 Sabine Kurtenbach, “The Limits of Peace in Latin America” [2019] 7 Peacebuilding 284.
8 In the 2018 index, only seven Latin American countries (Costa Rica, Chile, Uruguay, Cuba,
Suriname, the Bahamas, and Jamaica) obtained a score higher than 40, on a scale from 0 to 100.
9 The 2018 Worldwide Governance Indicators Project looks at several categories, namely,
Voice and Accountability, Political Stability and Absence of Violence/Terrorism, Government

Effectiveness, Regulatory Quality, Rule of Law, and Control of Corruption. On a scale of 0 to 100,
most Latin American countries have obtained scores under 50 in all categories, with the exception of
Voice and Accountability.
10 Of the ten countries that had the lowest scores in the 2020 Rule of Law Index, two (Bolivia and
Venezuela) are in Latin America. Furthermore, fourteen countries in the region (Venezuela, Bolivia,
Nicaragua, Honduras, Mexico, Guatemala, Dominican Republic, Belize, Ecuador, El Salvador, Peru,
Colombia, Suriname, and Guyana) had scores of 0.50 or lower (in a scale from 0.0 to 1.0) in terms of
adherence to the rule of law.
11 Colombia, Peru, Brazil, Mexico, Paraguay, Dominican Republic, and Bolivia (see 59).
civil and political rights—such as the rights to access information and to effective
participation in public affairs, for example—but also indirectly affect the enjoy-
ment of social and economic rights.12
Crucially, historical experience demonstrates that many countries in
the region tend toward the centralization of power, which in some cases has
generated the phenomenon known as hyper- presidentialism.13 Ignoring
the structure of checks and balances, many Latin American presidents have
usurped functions belonging to the legislative or judicial branches (for ex-
ample, governing through executive decrees and abusing the prerogatives
of special judicial fora) or have intervened directly in the structure of these
branches.14 This trend is not unique to Latin America. Both historical analyses
and recent research demonstrate that similar structural deficits are present in
other regions.15 Nevertheless, it is crucial to highlight that although the de-
mocratization process that took place in several Latin American countries in
the past few decades strengthened the protection of rights,16 it failed to achieve
the in-depth institutional reforms necessary to consolidate democracy and
strengthen the rule of law. The region still struggles with the legacy of past dic-
tatorial regimes, a culture of violence and impunity,17 weak rule of law, and a
precarious tradition of respect for human rights.
12 With regard to corruption, the IACHR has observed that “states are unable to meet their human
rights obligations when corruption is widespread. On the contrary, the denial of rights such as the
rights to health, food, education and housing are some of the terrible consequences that corrup-
tion in Latin American countries causes. Corruption also encourages discrimination and deprives
historically excluded and discriminated-against persons of income, which also prevents them from
exercising their rights, whether civil and political rights, or ESCER.” Report on the Situation of Human
Rights in Venezuela [2017] IACtHR, OEA/Ser.L/V/II, para. 412; Corruption and Human Rights in the
Americas: Inter-American Standards [2019] OEA/Ser.L/V/II.
13 Santiago Basabe- Serrano, “The Different Faces of Presidentialism: Conceptual Debate
and Empirical Findings in Eighteen Latin American Countries” [2017] 157 Revista Española de
Investigaciones Sociológicas 3.
14 Ibid.
15 See, e.g., the research on systemic deficiencies in the rule of law in Europe by Armin von
Bogdandy, “Principles of a systemic deficiencies doctrine: How to protect checks and balances in the
Member States” [2020] 3 Common Market Law Review 705.
16 An analysis conducted by Par Engstrom and Peter Low (“Mobilizing the Inter- American
Human Rights System: Regional Litigation and Domestic Human Rights Impact in Latin America,”
in Par Engstrom (ed.), The Inter-American Human Rights System: Impact Beyond Compliance
[Springer 2019]); shows that litigation was three times as frequent in 2014 as it had been in 1999,
an increase that could be attributed to, among other factors, the democratization that took place in
several Latin American countries during this period and allowed for greater access to human rights
bodies.
17 According to the 2017 Global Impunity Index (available at https://www.udlap.mx/cesij/files/
IGI-2017_eng.pdf), which evaluated the structural and functional dimensions of their justice and
security systems of sixty-nine countries, twelve out of the twenty countries with the worst impunity
are in Latin America (Guatemala, Ecuador, Panama, El Salvador, Honduras, Paraguay, Nicaragua,
Colombia, Brazil, Venezuela, Peru, and Mexico).
2.2. Contemporary Challenges
In addition to the structural challenges mentioned previously—deep inequality,

epidemic violence, and weak rule of law—Latin America confronts contempo-
rary challenges, such as the rise of populism, re-militarization and strengthened
anti-rights movements.
In the past decade, there has been an increase in the number of democrati-
cally elected presidents who have steered their countries toward authoritarian
populism, nationalism, unilateralism, and a restrictive concept of State sover-
eignty. One of these leaders’ particularly worrying tactics is scapegoating groups
in situations of vulnerability. Many populist leaders, for example, blame socio-
economic minorities and immigrants for economic deterioration, claiming that
the solution for these problems is an “absolute democracy” in which only the
voice of the majority would be heard. They state that institutions and systems of
checks and balances that protect minorities and marginalized groups need to be
abolished so that the will of the people can prevail.18 This is part of a global trend
of democracies being weakened from within.19
Along with the rise of populist leaders, there has been a constant decrease in
support for democracy. In 2018, the Latinobarómetro survey20 on support for de-
mocracy in Latin America found that only 48 percent of interviewees considered
democracy to be preferable to any other form of government.21 Eight years be-
fore, 61 percent of interviewees supported democracy.22 At the same time, an
increase was reported among those “indifferent to the type of regime”23—rising
from 16 percent in 2010 to 28 percent in 2018. According to the Pew Research
Center, in 2017, nondemocratic alternatives24 were supported by 23 percent
of interviewees in Brazil, 27 percent in Mexico, and 18 percent in Argentina.25
18 Yascha Mounk, The People v. Democracy (Harvard University Press 2018), 8.

19 See Steven Levitsky and Daniel Ziblatt, How Democracies Die (Crown 2018); David Runciman,
How Democracy Ends (Profile Books 2018); Jason Brennan, Against Democracy (Princeton University
Press 2018); Mounk (n. 18); Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy
(University of Chicago Press 2018).
20 Corporación Latinobarómetro, Informe 2018 (Santiago, 2018).
21 This survey was conducted between July 15 and August 2, 2018, with 20,204 persons from
eighteen Latin American countries and an estimated margin of error of 3 percent per country.
22 Corporación Latinobarómetro (n. 20), 14.
23 According to the survey (p. 14), individuals who identify themselves as “indifferent” to the
type of regime usually do not identify themselves with either the left or the right, do not belong to
a political party, and might eventually alienate themselves from politics altogether by, for example,
choosing not to vote.
24 The nondemocratic alternatives suggested in the study were “rule by experts,” “rule by a strong
leader,” and “rule by the military.”

25 Pew Research Center, “Globally, Broad Support for Representative and Direct Democracies—
but many also endorse nondemocratic alternatives” (October 2017), <https://www.pewresearch.org/

global/2017/10/16/globally-broad-support-for-representative-and-direct-democracy> (accessed
February 3, 2022).
Across the seven Latin American countries included in the survey,26 only one in
every five interviewees reported a commitment to representative democracy. As
for trust in public institutions, Latin Americans’ trust in legislatures and political
parties had decreased significantly: these institutions were supported by 21 per-
cent and 13 percent of interviewees, respectively, as opposed to 34 percent and
23 percent in 2010.27
The trends toward populism and decreasing support for democracy pose a
direct challenge to the belief that the end of dictatorships would pave the way
for the long-term consolidation of democracies oriented around human rights.28
Although there have been improvements in human rights protection and some
strengthening of democratic institutions, these advances are threatened by the
growth of authoritarian populism in a highly polarized context, characterized by
hate speech, political violence, and ideologies of superiority based on differences.
It should be noted that these ideologies are not restricted to one end of the polit-
ical spectrum.
Additionally, after a long history of militarized politics in Latin America,
democratization brought the hope of reduced military influence over civilian
affairs. In recent years, however, there have been signs of re-militarization in sev-
eral aspects of civilian life.
At the request of seventeen organizations from ten different countries, the
Inter-American Commission on Human Rights (Inter-American Commission,
or IACHR) hosted a public hearing in December 2018 on the increase in mili-
tarization across the region, especially in Argentina, Honduras, Guatemala, El
Salvador, Brazil, the United States, and Mexico.29 This trend is apparent not only
26 Brazil, Chile, Mexico, Argentina, Venezuela, Colombia, and Peru.

27 It is important to note that support for democracy decreased at the same time as frustrations
relating to socioeconomic development increased. As indicated by Laura Chinchilla, “[b]‌etween
2003 and 2011, overall per capita income in the region rose by 3 percent on average (World Bank
2011). Our share in the world economy rose from 5 percent to 8 percent in that period (World Bank
2011). However, since 2013 the tide has turned, and optimism and euphoria have transformed into
caution and concern. Ever since Latin America’s boom came to a sudden end, some countries have
struggled to avoid negative growth rates while others have faced modest to minimal growth.” Laura
Chinchilla, “Latin America: A Pending Assignment,” in Michael Shifter and Bruno Binetti (eds.),
Unfulfilled Promises: Latin America Today (The Dialogue 2019), 4.
28 These challenges to democracy should be understood in context. As indicated by Dieter
Nohlen, “if we situate the challenges of democracy in Latin America in a broader context, the inter-
dependence of the different sets of problems becomes clear. Therein lies, first of all, the democratic
institutional framework as such, its structure and capacity to function, including that of the elites that
compete politically with each other and run the institutions; then the political culture, the attitude of
the population and the different social sectors towards the institutions and the political elites, and,
finally, the economic and social results of the democratic system. The relationship between these
three sets of problems is established through the concept of legitimacy and, at the operational level,
the concept of governance.” Dieter Nohlen, “Democracia, Transición y Gobernabilidad en América
Latina” (UNAM 2016), 42 [translation by the authors].
29 The video of the public hearing is available at <https:// www.youtube.com/watch?v=dqUR
O4UprCs>.
in political rhetoric, as political leaders frequently use military language to de-

scribe policies to “combat” drugs and terrorism, but also in the use of military
tactics in public security and the formal militarization of police forces (meaning
that certain sectors of the police are considered as part of the military or that the
military performs public security roles).
According to a report by Argentina’s Center for Legal and Social Studies
(CELS), the legacy of military dictatorships in Latin America contributes to a
high level of trust in military forces as agents of domestic policing.30 At the same
time, a “new threats” military ideology advocates increased involvement of the
military in efforts to counter transnational crime networks, as well as to address
other issues, such as poverty and migration. The resulting militarization of police
forces in countries such as Mexico has led to increased police violence and le-
thality, a trend exacerbated by the passage of laws that remove safeguards against
police brutality.31 Military laws, moreover, are often lenient on the use of vio-
lence, and military personnel often are subject neither to regular courts nor to
the accountability and information duties of regular police forces.
The broad jurisdiction of military courts in Latin America is a recurrent
theme in the work of the IAHRS. The IACtHR has issued several decisions
recommending that States abolish military courts’ jurisdiction over crimes
committed against civilians.32 Those decisions, however, have had a low rate
of compliance. In recent years, the Inter-American Commission has expressed
concern33 about the expansion of the jurisdiction of military courts in certain
countries. In Brazil, for example, the Military Criminal Code was amended to
grant military courts jurisdiction over homicides committed by members of the
military against the civilian population.34
In several countries, the strong presence of the military in politics dates back
to before the dictatorships and, even where their protagonism has been more
discreet since democratization, they still influence public debates, especially
those related to public security.35 Several countries, including Brazil, Chile, Peru,
and Colombia, have elected political leaders supported by the military in the
30 Center for Legal and Social Studies, “Internal War— How the War on Drugs has been
Militarizing Latin America.” Spanish version available at <https://www.cels.org.ar/militarizacion/>.
31 Denisse Legrand, “La militarización de la seguridad y la política en América Latina,” La Diaria
(Montevideo, November 16, 2019), <https://ladiaria.com.uy/articulo/2019/11/la-militarizacion-de-

la-seguridad-y-la-politica-en-america-latina/> (accessed January 4, 2022).
32 E.g., Loayza Tamayo v. Peru [1997] IACtHR, Ser. C No 33; Lori Berenson-Mejía v. Peru [2004]
IACtHR, Ser. C No 119; Radilla Pacheco v. Mexico [2009] IACtHR, Ser. C No 209.
33 IACHR, “UN Human Rights and IACHR categorically reject bill expanding jurisdiction of mil-
itary courts in Brazil” (October 13, 2017), <https://www.oas.org/es/cidh/prensa/comunicados/2017/

160.asp> (accessed January 4, 2022).
34 Law n. 13.491/2017.
35 Elvira Cuadra, “Primer Congreso de Seguridad Incluyente y Sostenible,” La Diaria (Montevideo.
November 16, 2019), <https://ladiaria.com.uy/articulo/2019/11/la-militarizacion-de-la-seguridad-

y-la-politica-en-america-latina/> (accessed January 4, 2022).
past few years. Meanwhile, in Bolivia, the armed forces responded to popular
demonstrations against the government by asking then President Evo Morales
to step down.36
In several countries throughout Latin America there has also been an increase
in the influence of groups that advocate against human rights. In many cases,
these anti-rights movements are associated with religious leaders who oppose
reproductive rights, LGBTIQ+rights, and gender equality.37 The growth of evan-
gelical groups in a historically Catholic region has added to the influence of re-
ligion on politics.38 For example, several current presidents are supported by
strong evangelical leaders.
One of the effects of the increase in the power of religious and anti-rights
groups has been setbacks in LGBTIQ+rights. Although they have made sub-
stantial progress since the late 2000s, LGBTIQ+rights recently have come under
attack from religious groups even in the context of the IACtHR, where evangel-
ical groups have used strategic litigation to challenge rights such as same-sex
marriage, arguing that freedom of religion allows individuals and institutions
to refuse services to same-sex couples. Religious and conservative groups also
have organized anti-LGBTIQ+marches in several Latin American countries (in-
cluding Brazil, Chile, Colombia, Dominican Republic, Mexico, and Peru),39 and
have protested several LGBTIQ+-related advances, such as marriage equality
and LGBTIQ+representation in political institutions.40 Some religious and anti-
rights groups have also fought policies intended to curb discrimination, espe-
cially within educational institutions. In many cases, these groups claim that they
are fighting so-called “gender ideology,” an umbrella term used to cast a negative
light on policies and actions that seek to protect women and LGBTIQ+people
from discrimination.
36 The protests began after the Organization of American States (OAS) published the results of an
audit conducted during the elections of October 20, 2019. The OAS concluded that there had been
striking irregularities in the election process. The population then took to the streets to demand new
elections and continued to do so for eighteen days.
37 René Urueña has analyzed the growth of evangelicalism as a political force in Latin America as
a shift from a “private” to a “public” mindset in terms of faith and religious practice. For a full explo-
ration of this change, as well as its consequences for human rights in the region, see Rene Urueña,
“Reclaiming the Keys to the Kingdom (of the World): Evangelicals and Human Rights in Latin
America” [2019] Netherlands Yearbook of International Law 175.
38 Pew Research Center, Religion in Latin America: Widespread Change in Historically Catholic
Region, 2014.
39 Javier Corrales, “The Expansion of LGBT Rights in LA and the Backlash,” in Michael J. Bosia,
Sandra M. McEvoy, and Momin Rahman (eds.), The Oxford Handbook of Global LGBT and Sexual
Diversity Politics (Oxford University Press 2020), 190.
40 As described by René Urueña: “Ever since 2010, the recognition of new LGBTI rights has been
systematically met with a backlash from Evangelical groups, who discredit and resist such advances
in the region. This process has created a dynamic of action and reaction that often features, first, an
achievement often pushed by progressive civil society organizations (such as same-sex marriage),
which is met by the reaction by a network of religious conservative activists, who put pressure on
public institutions to scale back the achievement gained in the first place.” Urueña (n. 37), 21.
These anti-rights movements have resulted in concrete actions and omissions

by States of the region. In 2017, for example, Paraguay’s Ministry of Education
and Sciences issued Resolution No. 29.664, which prohibits the dissemination
and use of educational materials referring to “gender theory and/or ideology.” The
State thus prevented its educational institutions from teaching and discussing
gender inequality, raising awareness about discrimination, and fostering a non-
violent, rights-based culture. As highlighted by the IACHR in a press release, this
decision contradicted the right to equality and non-discrimination.41
Past, current, and potential future setbacks in the protection of LGBTIQ+
rights are especially worrisome because, despite recent progress, there is still
much work to be done to consolidate LGBTIQ+rights in the hemisphere.42 Of
particular concern is the fact that nine countries in the region still criminalize
homosexuality (Guyana, Grenada, Barbados, Saint Vincent and the Grenadines,
Saint Lucia, Dominica, Antigua and Barbuda, Saint Kitts and Nevis, and
Jamaica).43
2.3. The Aggravation of Challenges in Times of Crisis
This context of shared challenges and tensions sheds light on why the region
still needs the Inter-American Human Rights System. Times of crisis make
these challenges even more acute, reinforcing the necessity of human rights
mechanisms. The COVID-19 pandemic has been a strong reminder of this.
Human rights violations were hidden among legitimate efforts to fight the pan-
demic in many countries. From a human rights perspective, Latin America
entered a regional state of emergency.
The pandemic is the biggest global health emergency in at least a century and
perhaps the most challenging global crisis since the creation of international
human rights systems. Its immediate impacts on the rights to health and life are
severe. At the same time, the indirect impacts of the virus and the measures to
contain it have affected the economic security of millions of individuals, creating
enormous risks to a wide range of economic, as well as social, cultural and en-
vironmental, rights. Moreover, global experience demonstrates that fighting
the virus effectively—and therefore protecting the economic, social, and cul-
tural rights threatened by it—depends on the full protection of civil and political
41 IACHR, “IACHR Regrets Ban on Gender Education in Paraguay” (December 15, 2017),
<https://www.oas.org/en/iachr/media_center/PReleases/2017/208.asp> (accessed January 4, 2022).

42 For more information, see Advances and Challenges towards the Recognition of the Rights of
LGBTI Persons in the Americas [2018] IACHR, OEA/Ser.L/V/II.170 Doc. 184.

43 See ILGA, “Sexual Orientation Laws in the World” (2019), <https://ilga.org/downloads/ILGA_
World_map_sexual_orientation_laws_December2019.pdf> (accessed January 4, 2022).

rights, such as access to information and freedom of expression. As such, the

pandemic reinforces the interdependence and indivisibility of all human rights.
Interestingly, it does so by demonstrating that the enjoyment of civil and political
rights is necessary for the full protection of economic, social, cultural, and envi-
ronmental rights (ESCER), an inversion of the usual argument that ESCER must
be judicialized as necessary components of the enjoyment of civil and political
rights.44
Although the virus does not discriminate, high levels of inequality in Latin
America lead to disproportionate impacts on groups in situations of vulnera-
bility.45 In addition to difficulties in accessing adequate healthcare, those living in
poverty and extreme poverty are less able to implement prevention measures—
such as washing hands and social distancing—due to insufficient access to water,
sanitation, and housing. At the same time, a substantial number of families living
in poverty rely on informal labor, which means they are most exposed to the
economic impacts of the crisis. Because poverty affects Afro-descendant and
Indigenous groups disproportionately, there is also a racial and ethnic dimen-
sion to the impacts of the pandemic. In Brazil, the rate of COVID-19 deaths
is higher among Black individuals across all segments of the population. The
deadly impact of inequality becomes even more apparent when intersectionality
is considered. According to the Health Intelligence and Operations Center,
a Black illiterate person who is hospitalized in Brazil due to COVID-19 has a
76 percent chance of dying, a rate 3.8 times higher than the likelihood of a White,
college-educated patient dying (19.6%).46
Noting the particularities of the COVID-19 crisis in a region plagued by
systemic inequality, the Inter-American Commission adopted a resolution on
human rights in the pandemic47 and a resolution on the human rights of people
with COVID-19.48 These resolutions provide general recommendations to
44 Flavia Piovesan and Mariela Morales Antoniazzi, “COVID-19 and the Need for a Holistic and
Integral Approach to Human Rights Protection” (VerfBlog, April 25, 2020), <https://verfassungsb
log.de/covid-19-and-the-need-for-a-holistic-and-integral-approach-t o-human-r ights-p
rotection/>

45 As noted by the UN Secretary General, “We have seen how the virus does not discriminate,
but its impacts do—exposing deep weaknesses in the delivery of public services and structural
inequalities that impede access to them.” United Nations, “We are all in this together: UNSG delivers
policy brief on COVID-19 and human rights.” Statement by UN Secretary-General António Guterres
(April 23, 2020), <https://www.ohchr.org/EN/NewsEvents/Pages/UNSG_HumanRights_COVI
D19.aspx> (accessed January 4, 2022).
46 Amanda Batista et al., “Análise socioeconômica da taxa de letalidade da COVID-19 no Brasil.
Núcleo de Operações e Inteligência em Saúde,” Nota Técnica 11 (May 27, 2020), <https://sites.google.
com/view/nois-pucrio/publica%C3%A7%C3%B5es?authuser=0> (accessed January 4, 2022).
47 Resolution no. 1/2020: Pandemic and Human Rights in the Americas [2020] IACHR, <http://
www.oas.org/en/iachr/decisions/pdf/Resolution-1-20-en.pdf> (accessed January 4, 2022).

48 In Resolution 4/20, the IACHR stressed that the rapid spread of COVID-19 in the Americas
was due in part conditions that predated the pandemic, including discrimination, poverty, and in-
equality, as well as fragile institutions. With this in mind, the Commission reminded States that
measures to protect the human rights of individuals with COVID-19 must be intersectional and
protect the rights of all individuals and the democratic system itself, as well as
targeted recommendations to protect groups in situations of vulnerability. In ad-
dition to observing the aforementioned impacts on the poor,49 the Commission
discusses other groups subject to increased risks. The elderly,50 persons deprived
of liberty,51 women,52 Indigenous peoples,53 migrants,54 children,55 LGBTIQ+
multidisciplinary, addressing not only the disease itself but also the differentiated impacts it may
have on different groups and fine-tuning measures to their specific needs. The resolution takes a
comprehensive approach, highlighting the indivisibility of human rights by approaching the issue
from different angles, including the rights to health, consent, equality, privacy, and access justice. See
Human Rights of Persons with COVID-19 [2020] IACHR, Resolution No. 4/2020, <http://www.oas.
org/en/iachr/decisions/pdf/Resolution-4-20-en.pdf> (accessed January 4, 2022).
49 See also IACHR, “IACHR and OSRESCER Urge States to Provide Effective Protection for
People Living in Poverty and Extreme Poverty in the Americas during the COVID-19 Pandemic”
(June 2, 2020), available at <http://www.oas.org/en/iachr/media_center/PReleases/2020/124.asp>.
50 See also IACHR, “IACHR Urges States to Guarantee the Rights of Older People during the
COVID-19 Pandemic” (April 23, 2020), <http://www.oas.org/en/iachr/media_center/PRelea

ses/
2020/ 088.asp> (accessed January 4, 2022). Several UN agencies have also addressed the
particularities of protecting the human rights of refugees, migrants, and stateless persons as part of
the response to COVID-19. See United Nations, “The rights and health of refugees, migrants and
stateless must be protected in COVID-19 response: A joint statement by UNHCR, IOM, OHCHR
and WHO” (November 30, 2020), <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.
aspx?NewsID=25762&LangID=E> (accessed January 4, 2022)..
51 See also IACHR, “The IACHR urges States to guarantee the health and integrity of persons de-
prived of liberty and their families in the face of the COVID-19 pandemic” (March 31, 2020), avail-
able at <http://www.oas.org/en/iachr/media_center/PReleases/2020/066.asp> (accessed January 4,
2022); several UN agencies have also addressed the vulnerability of people deprived of liberty during
the COVID-19 pandemic. See UNODC, “WHO, UNAIDS and OHCHR joint statement on COVID-
19 in prisons and other closed settings,” <https://www.ohchr.org/Documents/Events/COVID-19/
20200513_PS_COVID_and_Prisons_EN.pdf> (accessed January 4, 2022).
52 See also IACHR, “The IACHR calls on Member States to adopt a gender perspective in the re-
sponse to the COVID-19 pandemic and to combat sexual and domestic violence in this context”
(April 11, 2020), <http://www.oas.org/en/iachr/media_center/PReleases/2020/074.asp> (accessed
January 4, 2022).
53 See also IACHR, “IACHR Warns of the Specific Vulnerability of Indigenous Peoples to the
COVID-19 Pandemic, Calls on States to Adopt Targeted, Culturally Appropriate Measures that
Respect These Peoples’ Land” (May 6, 2020), <http://www.oas.org/en/iachr/media_center/PRelea
ses/2020/103.asp> (accessed January 4, 2022).
54 See also IACHR, “The IACHR urges States to protect the human rights of migrants, refugees
and displaced persons in the face of the COVID-19 pandemic” (April 27, 2020), <http://www.oas.
org/en/iachr/media_center/PReleases/2020/077.asp> (accessed January 4, 2022); the UN High
Commissioner for Human Rights has also addressed the specificities of protecting the human rights
of older persons during the pandemic. See United Nations, Virtual debate “Human Rights of older
persons in the age of COVID-19 and beyond”: Statement by the United Nations High Commissioner
for Human Rights (May 12, 2020), <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.
aspx?NewsID=25879&LangID=E> (accessed January 4, 2022).
55 See also IACHR, “IACHR Warns of the Effects of the COVID-19 Pandemic on Children and
Adolescents” (April 27, 2020), <http://www.oas.org/en/iachr/media_center/PReleases/2020/090.

asp> (accessed January 4, 2022); several UN agencies have also drawn attention to the impact of
COVID-19 on children, developing an agenda for action to ensure a child rights and multisectoral
response to COVID-19. See Inter-Agency Working Group on Violence against Children, “Agenda
for Action,” <https://www.ohchr.org/Documents/Events/COVID-19/Agenda_for_Action_IAWG-
VAC.pdf> (accessed January 4, 2022).
individuals,56 Afro-descendants,57 people with disabilities,58 and human rights

defenders59 all face specific challenges in the context of the pandemic, and
States must therefore act in the particular interest of their protection. The Inter-
American Court has also issued a statement highlighting the disproportionate
impact of the pandemic on some groups:
Given the nature of the pandemic, the economic, social, cultural and environ-
mental rights must be guaranteed, without discrimination, to every person
subject to the State’s jurisdiction and, especially, to those groups that are dispro-
portionately affected because they are in a more vulnerable situation, such as
older persons, children, persons with disabilities, migrants, refugees, stateless
persons, persons deprived of liberty, the LGBTI community, pregnant or post-
partum women, indigenous communities, Afro-descendants, those who work
in the informal sector, the inhabitants of underprivileged districts or areas,
the homeless, those living in poverty, and the health care personnel who are
responding to this emergency.60
States have a broad obligation to adopt urgent measures to protect the rights
to life and health of the whole population, employing the maximum available
resources to prevent and mitigate harm associated with the pandemic. This gen-
eral obligation includes access to water and sanitation, adequate housing, and
economic support measures.61 Given the special risks experienced by the above-
mentioned groups, States also have an enhanced duty to protect them. That is
56 See also IACHR, “On the eve of the International Day against Homophobia, Biphobia and
Transphobia, the IACHR and various international experts call attention to the suffering and resil-
ience of LGBT people during the COVID-19 pandemic” (May 14, 2020), <http://www.oas.org/en/
iachr/media_center/PReleases/2020/110.asp> (accessed January 4, 2022); IACHR, “The IACHR
calls on States to guarantee the rights of LGBTI people in the response to the COVID-19 pandemic”
(April 20, 2020), <http://www.oas.org/en/iachr/media_center/PReleases/2020/081.asp> (accessed
January 4, 2022).
57 See also IACHR, “IACHR and its Special Rapporteurship on ESCER calls on the States to guar-
antee the rights of Afro-descendant Persons and prevent racial discrimination in the context of the
COVID-19 pandemic” (April 28, 2020), <http://www.oas.org/en/iachr/media_center/PReleases/
2020/092.asp> (accessed January 4, 2022).
58 See also IACHR, “The IACHR Calls on States to Provide Comprehensive Protection for the
Lives of People with Disabilities During the COVID-19 Pandemic” (April 8, 2020), <http://www.oas.
org/en/iachr/media_center/PReleases/2020/071.asp> (accessed January 4, 2022).
59 See also IACHR, “IACHR Calls on States to Protect and Preserve the Work of Human Rights
Defenders During the COVID-19 Pandemic” (May 5, 2020), <http://www.oas.org/en/iachr/media_

center/PReleases/2020/101.asp> (accessed January 4, 2022).
60 IACtHR, “Covid-19 and human rights: the problems and challenges must be addressed from
a human rights perspective and with respect for international obligations,” Statement 1/20 (April
9, 2020), <http://www.corteidh.or.cr/docs/comunicados/cp_27_2020_eng.pdf> (accessed January
4, 2022).
61 Flavia Piovesan, “Rol y Medidas de la CIDH para el combate contra la Covid- 19,” Konrad
Adenauer Stiftung: Dialogo Derechos Humanos, <https://dialogoderechoshumanos.com/rol-y-medi
das-de-la-cidh-para-el-combate-contra-la-covid-19> (accessed January 4, 2022).
why the IACHR drafted targeted recommendations that, if implemented, would

enable States to address the pandemic in light of the particular vulnerabilities
of these groups. For example, the IACHR has recommended that States make
information available in Indigenous languages, strengthen programs against
domestic violence, reconsider cases of pretrial detention, and substitute incar-
ceration for alternative measures.62 All actions and measures, both general and
targeted, must be based on the best scientific evidence and be adopted through
transparent, participatory, and inclusive processes.
Nevertheless, human rights, such as the right of assembly, have been restricted
in the context of the pandemic. While many of these restrictions are legitimate
means of protecting public health, a region facing challenges related to weak
rule of law, authoritarianism, and populism is prone to implementing abusive
restrictive measures. In its resolution about the pandemic, the Inter-American
Commission reiterated that all States must follow international law when de-
signing and applying public health measures. This means that any restrictions
must be provided by law, necessary in a democratic society, and strictly propor-
tional to the legitimate purpose of protecting health.63 States of emergency must
also follow strict international law requirements, including temporality and
proportionality.
If regional challenges become more acute in times of crisis, the role of human
rights protection mechanisms also becomes more salient. During the pan-
demic, the IAHRS has monitored the situation of human rights in the region
and has provided timely responses, centering its operations in the Rapid and
Integrated Response Coordination Unit of the IACHR (SACROI-COVID-19).64
From its inception in March 2020 until mid-May 2020, the SACROI not only
drafted the above-mentioned IACHR resolutions, which contain eighty-five
recommendations to States about how to implement a human rights–centered
response to the pandemic but also analyzed eighty-four precautionary measure
requests, requested information from States on twenty-one cases, strengthened
channels for direct dialogue with States, held five social forums with civil so-
ciety, and developed a robust public communication strategy to dissemi-
nate information about the pandemic and related human rights topics, which
62 Resolution no. 1/2020: Pandemic and Human Rights in the Americas [2020] IACHR, <http://
www.oas.org/en/iachr/decisions/pdf/Resolution-1-20-en.pdf> (accessed January 4, 2022).

63 According to the Court: “All the measure that States may adopt to address this pandemic and
that may impair or restrict the enjoyment and exercise of human rights must be temporarily lim-
ited, legal, adjusted to well-defined aims based on scientific criteria, reasonable, absolutely necessary
and proportionate and in accordance with other requirements developed in Inter-American human
rights law.” IACtHR, “Covid-19 and human rights: the problems and challenges must be addressed
from a human rights perspective and with respect for international obligations,” Statement 1/20
(April 9, 2020), <http://www.corteidh.or.cr/docs/comunicados/cp_27_2020_eng.pdf> (accessed
January 4, 2022).
64 See <http://www.oas.org/en/iachr/SACROI_COVID19/>.
included seventeen press releases, thirty-three newsletters, one multimedia web-

site, and three webinars.65 The impact of these actions can be seen in a series
of judicial rulings, policy decisions, and regulations implementing IAHRS
recommendations across the region. The IAHRS is expressly cited as a basis for
measures implemented in a number of countries, including Argentina, Bolivia,
Costa Rica, El Salvador, and Brazil.66
In the aftermath of the pandemic, a similar effort will be required to ensure
that the medium-and long-term impacts of the crisis are also addressed through
a human rights–centered approach. The IAHRS will be called upon to ensure
accountability and to order reparations for possible human rights abuses com-
mitted during the pandemic.
In post-pandemic times, the imperative to fulfill the mandates of the System
by addressing structural inequalities will be more evident than ever. Indivisibility
and interdependency of all human rights must continue to be a cornerstone of
the work of the IAHRS, as well as of the actions of the human rights commu-
nity in the region. At the same time, for all stakeholders to come back stronger
from COVID-19, they must recognize the all-encompassing impact of structural
inequalities on the enjoyment of the human rights of all. Addressing structural
inequalities is essential for furthering human rights.
3. WHAT Are the Key Components of the

Inter-American System?
Now that we have addressed the question concerning why we need the Inter-
American System in present-day Latin America, we turn, in this section, to the
structuring components that have oriented the actions and decisions of the
IAHRS throughout its existence. We focus on three key elements: the victim-
centric approach, IAHRS standards, and comprehensive reparations.
These components are involve different tools and working methods. In ad-
dition to the advisory and contentious cases of the Inter-American Court, the
Inter-American Commission has developed a hybrid “toolbox” encompassing
both political and judicial methods. This includes the case system, precautionary
measures, public hearings, friendly settlements, thematic reports, country
reports, and in loco visits. The three elements explored below are present in
each of these different tools, which have been used extensively throughout the
Commission’s history. On the IACHR’s sixtieth anniversary, it had completed
65 IACHR, “IACHR presents balance, impacts and results achieved by its Coordination and
Timely Integrated Crisis Response Room for the COVID-19 Pandemic” (May 16, 2020), <http://
www.oas.org/en/iachr/media_center/PReleases/2020/114.asp> (accessed January 4, 2022).
66 Ibid.
172 periods of sessions, 2,335 public hearings, 81 thematic reports, 71 country

reports, and 98 in loco visits.
3.1. The Victim-Centric Approach
The IAHRS aims to prevent human rights violations and, when these occur, to pro-
vide effective remedies that safeguard human dignity. The dialogue between the
IAHRS and victims—through in loco visits, litigation, or any of its other tools—has
been fundamental in shaping the work of the Court and the Commission toward
this objective. Often acting as facilitators of the dialogue between the IAHRS and
other stakeholders, civil society organizations have guaranteed that victims are
heard and have access to the System.
The right of victims to approach the IAHRS and request protection is, by itself, a
demonstration of the centrality of the victim in the System. From this starting point,
the constant dialogue and engagement with victims and their representatives has
led to the creation of institutes that further strengthen the position of the victim as
the central stakeholder in the IAHRS. Examples of such improvements include pre-
cautionary measures and the creation of inter-American public defenders.
The victim-centric approach is also demonstrated by the types of reparations
ordered by the Court, which include not only direct redress but also symbolic
reparations and guarantees of nonrepetition. For example, symbolic reparations,
such as memorials and commendations,67 respond to victims’ requests that
States recognize their suffering and acknowledge their place in society.
3.2. Inter-American Standards
The IAHRS is charged with protecting and promoting human rights in the region
with independence and impartiality. The American Declaration of the Rights
and Duties of Man (American Declaration) and the American Convention
provide the grounds for and delineate the boundaries of this work. Additional
protocols and special conventions further expand the inter-American corpus
juris, as do inter-American standards derived from the work of the Court and
the Commission. These standards are present in the statutes of the Court and the
Commission, judgments, advisory opinions, reports, and recommendations.68
67 E.g., González et al. (“Cotton Field”) v. Mexico [2009] IACtHR, Ser. C No. 205; Rio Negro
Massacres v. Guatemala [2012] IACtHR, Ser. C No. 250.

68 Sergio García Ramirez, “La “Navegación Americana” de los Derechos Humanos: Hacia un Ius
Commune,” in Armin von Bogdandy et al. (eds.), Ius Constitutionale Commune en América Latina.
Rasgos, Potencialidades y Desafíos (IIJ-UNAM-MPIL-IIDC 2014), 459–500.
The Inter-American Court considers the corpus juris of international human

rights law to be comprised of “international instruments of varied content and
juridical effects (treaties, conventions, resolutions and declarations),” which
should be interpreted in light of their dynamic evolution.69 According to the
Court, the constant evolution of human rights standards has had a positive
impact on international law and must be considered in the interpretation and
application of inter-American norms.70 The evolutionary interpretation of inter-
American standards has played a significant role in ensuring that the System is
able to respond to changing times and contemporary challenges, both in cases
involving new aspects of human relations (such as reproduction techniques or
digital communications) and in situations in which the law itself has evolved (for
example, as related to the justiciability of economic, social, and cultural rights).
Soft law, although not binding, often plays a key role in the evolution of inter-
national human rights law. Since it is more flexible, soft law enables the creation
of dynamic solutions to complex problems in the region. Procedural and insti-
tutional innovations have also helped to guarantee effective protection that goes
beyond the original provisions of the American Convention. Examples include
special follow-up mechanisms and precautionary measures.71
3.3. Comprehensive Reparations
The Inter-American System has ordered comprehensive reparations (reparación

integral) throughout its history. In its first case, Velásquez Rodríguez v. Honduras,
the Court assessed material and nonmaterial damages.72 Since then, the Court
has ordered several types of symbolic reparations, the provision of services of the
most diverse types to affected populations, and measures of prevention.73
The Court typically orders several different kinds of reparations, in-
cluding: (a) payment of economic compensation for the victims or their
69 Mariela Morales Antoniazzi, “The Rights of Persons Deprived of Liberty in Latin America: From
the perspective of an ius constitucionale commune,” in Clara Burbano and Yves Haeck, Human Rights
Behind Bars (2022), 118, con referencia a Advisory Opinion OC-16/99 [1999] IACtHR, §115.
70 Ibid.
71 It is worth noting that precautionary measures, one of the key mechanisms for the protec-
tion of human rights in Latin America, is not provided for in the American Convention but in the
Commission’s Rules of Procedure. This does not diminish their binding nature, which has been
recognized by the OAS and several member States.
72 In this opportunity, the Court stated: “Reparation of harm brought about by the violation of an
international obligation consists in full restitution (restitutio in integrum), which includes the res-
toration of the prior situation, the reparation of the consequences of the violation, and indemnifica-
tion for patrimonial and nonpatrimonial damages, including emotional harm.” Velásquez-Rodríguez
v. Honduras [1989] IACtHR, Ser. C No. 7.
73 See Claudio Grossman, Agustina del Campo, and Mina Trudeau, International Law and
Reparations: The Inter-American System (Clarity Press 2018).

families;74 (b) investigation, prosecution, and punishment of perpetrators, with

the adoption of due diligence measures by the State;75 and (c) adoption of struc-
tural changes (such as legal reforms and new public policies) based on guarantees
of nonrepetition, including measures directed at protecting the rights of groups
in situation of vulnerability76 and at furthering the effectiveness of economic,
social, cultural, and environmental rights.77 A wide range of measures may be
ordered within each category to repair the complex individual and collective
damages caused by human right violations.
Comprehensive reparations are so fundamental that they are often incorporated
into friendly settlements.78 The fact that friendly settlements, agreements entered
into voluntarily by States and victims, include State commitments to preventive
measures, guarantees of nonrepetition, and investigations shows how important
comprehensive reparations are to all stakeholders within the IAHRS.
Through comprehensive reparations, the Inter-American System can compen-
sate for States’ failures to protect human rights and alter the power dynamics among
States, victims, and civil society. The System can also complement the work of na-
tional human rights mechanisms, collaborating to strengthen human rights, de-
mocracy, and rule of law in the region.
4. How Can One Understand IAHRS Transformative Impact,

Taking into Account Its Sociopolitical, Institutional, and
Cultural Dimensions?
The Inter-American System has saved and continues to save lives all over
Latin America. It has enabled the destabilization of dictatorial regimes;79 it has
74 The Court ordered payment of economic reparations for victims of human rights violation in its
first case. See Case of Velásquez Rodríguez v. Honduras [1989] IACtHR, Ser. C No. 7, para. 60.
75 See, e.g., Case of Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil [2010] IACtHR, Ser. C No.
219, paras. 253–257.

76 See, e.g., Case of Azul Rojas Marín et al. v. Peru [2020] IACtHR, Ser. C No. 402, paras. 238-255.
77 See, e.g. ,Case of Cuscul Pivaral et al. v. Guatemala [2018] Ser. C No. 359, paras. 224–230.
78 Natalia Saltalamacchia Ziccardi et al., “Friendly Settlements in the Inter- American Human
Rights System: Efficiency, Effectiveness and Scope,” in Par Engstrom (ed.), The Inter-American
Human Rights System: Impact Beyond Compliance (Springer 2019), 59–88.
79 The Commission has issued numerous reports condemning the military dictatorships in the
region and the human rights violations committed by them, especially after early in loco visits, which
resulted in reports that primarily emphasized the relationship between democracy, human rights,
and political participation. The 1974 report on Chile accused the Pinochet government of several
grave violations of human rights, such as the rights to life, personal freedom, and due process. The
1980 report on Argentina formally established the existence of forced disappearances perpetrated by
the State. The 2000 report on Peru questioned the legitimacy of the election of Fujimori.
demanded justice and an end to impunity in the democratic transitions;80 and

now it strengthens democratic institutions.81
Some aspects of the System, however, have been criticized in favor of restraint.
These critics argue that the IAHRS should be deferent toward States. Although
the critics adopt a variety of approaches, it is possible to identify three main
axes of their arguments: calls for greater dialogue, support for the use of the
margin of appreciation doctrine, and a broad desire to re-evaluate the purposes,
methods, and priorities of the System.82 Although we acknowledge the value of
strengthening national actors’ ability to tackle human rights issues, as well as the
need for the IAHRS to remain rigorous in ensuring its actions have robust nor-
mative basis, we argue that the current practices of the System already reflect
these objectives and that any reforms to the System should strengthen, rather
than diminish, these practices. The implementation of IAHRS standards is an
open, dynamic, complex, and multidimensional process that empowers national
actors to navigate their specific realities while maintaining a firm commitment
to human rights norms. In other words, the porous relation between the inter-
national and national sphere, especially during implementation, preserves and
values the role of domestic actors without compromising the universal values
that ground IAHRS decisions.
Processes of implementation vary in accordance with local circumstances and
the perspectives of the relevant stakeholders. This is because the implementa-
tion of international human rights law emerges not as a mere result of series of
IAHRS decisions and actions, but rather as a multifaceted path in which regional
80 During the transition to democracy after the era of military dictatorships, several Latin
American countries enacted amnesty laws that were exceptionally broad—forgiving members of the
military regime for crimes against humanity—and were considered by the Inter-American Human
Rights System to violate human rights. The Inter-American Court of Human Rights found these laws
to be incompatible with the American Convention in several cases. See, e.g., Almonacid Arellano and
others v. Chile, Gomes Lund and others v. Brazil, Barrios Altos v. Peru, Gelman v. Uruguay.
81 Mariela Morales Antoniazzi, “The Rights of Persons Deprived of Liberty in Latin America: From
the perspective of an ius constitucionale commune,” in Clara Burbano and Yves Haeck, Human Rights
Behind Bars (2022), 134 ff.
82 This three-pronged classification was proposed by Tom Gerald Daly, “Relation of Constitutional
Courts/Supreme Courts to IACtHR,” in Rainer Grote, Frauke Lachenmann, and Rüdiger Wolfrum
(eds.), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press
2018). The classification encompasses, among others, the following critical authors: Alexandra
Huneeus, “Rejecting the Inter-American Court: Judicialization, National Courts, and Regional
Human Rights,” in Javier Couso, Alexandra Huneeus, and Rachel Sieder (eds.), Cultures of
Legality: Judicialization and Political Activism in Latin America (Cambridge University Press 2010)
y Ariel Dulitzky, “An Inter-American Constitutional Court? The Invention of the Conventionality
Control by the Inter-American Court of Human Rights” [2015] 50 Texas International Law Journal
45; Paola Andrea Acosta Alvarado and Manuel Núñez Poblete (eds.), El Margen de Apreciación en
el Sistema Interamericano de Derechos Humanos: Proyecciones Regionales y Nacionales (UNAM-IIJ
2012); Carlos Arturo Villagrán Sandoval and Fabia Fernandes Carvalho Veçoso, “A Human Rights’
Tale of Competing Narratives” [2017] 8 Revista Direito e Práxis 1603.
and national actors mutually influence each other’s thinking and practices con-
cerning human rights.
Despite the specificities of each case and country, it is possible to identify
common paths that lead to the implementation of IAHRS standards, leading to
transformative impact that enhances human rights protection on the ground.
We analyze these paths in three dimensions: institutional, sociopolitical, and
cultural.
4.1. Institutional Dimension
The first dimension of IAHRS impact is institutional. States have the interna-
tional duty to implement inter- American norms, and the Inter- American
Commission and the Inter-American Court are charged with promoting and
overseeing the implementation of these standards. The IACtHR and the IACHR
form the basic structure of the IAHRS, and any IAHRS action that could affect
human rights in the region inevitably involves them.
Although the IACtHR and IACHR are institutions, their roles are not static.
They have evolved over time, changing and adapting in ways that increase the
System’s impact in the region. In the past few years, for example, States, the
Commission, and the Court have undertaken numerous initiatives to improve
the implementation of IAHRS standards and to increase the positive impact of
the System in the region.
One key step States may take to maximize IAHRS impact is the adop-
tion of national laws and mechanisms that enable the implementation of
IAHRS decisions and recommendations. Most Latin American countries
have made great strides in the last few years in establishing mechanisms for
implementation, enacting legislation,83 creating platforms for monitoring
compliance with recommendations,84 developing indicators to measure imple-
mentation, and adopting national mechanisms that facilitate intergovernmental
and intragovernmental dialogues among different State agencies.85
83 In Colombia, Law No. 288/1996 establishes a mechanism for the payment of reparations to the
victims of human rights violations, in which the State body that violated those rights is responsible
for the payment. Another commendable initiative was established in Peru, where the Integrated
Program for Reparations was created to provide assistance to victims of internal armed conflicts and
to execute reparation actions. Finally, in Brazil there is a bill that would establish expedited mech-
anism for the payment of reparations ordered by the IAHRS, different from the regularly lengthy
procedures through which victims currently have to go through in order to collect pecuniary
damages from the State.
84 The main initiative in this sense is SIMORE, discussed in the following paragraph. See also the
Brazilian initiative of creating a special Unity for Monitoring the Compliance of the Inter-American
Decisions at the National Council of Justice, considered as regional best practice.
85 Oscar Parra- Vera (“Institutional Empowerment and Progressive Policy Reforms: The
Impact of the Inter-American Human Rights System on Intra-State Conflicts,” in Par Engstrom,
Another strategy is the creation of programs of cooperation among States or

State entities to share best practices. A good example is SIMORE (Sistema de
Monitoreo de Recomendaciones Internacionales de Derechos Humanos). SIMORE
is an online platform, created by Paraguay, that allows the State and its citizens to
systematize and monitor compliance with decisions from international human
rights bodies. The system is used by Paraguay, Chile, Costa Rica, the Dominican
Republic, Guatemala, Honduras, and Uruguay. In 2017, Paraguay and the Inter-
American Commission entered into an agreement to make SIMORE available to
all States.86
Inspired by this experience, the IACHR has adopted a similar initiative. In
June 2020, the Commission launched the inter-American SIMORE, which
builds on the experience of national SIMOREs and aims to enhance monitoring
of the Commission’s recommendations by increasing the exchange of informa-
tion with a wide range of stakeholders.87 Embracing a participatory approach to
monitoring, the system makes information available to the public, which enables
outside actors to incorporate IACHR recommendations to their human rights
work, while at the same time providing the opportunity for all actors to upload
their own data on implementation.88 Moreover, the tool increases the visibility
of recommendations made by the IACHR, which may create additional pressure
for their implementation. States, eager to avoid gaining a reputation as having
too many pending obligations with the international community, may become
more willing to facilitate compliance with IAHRS decisions. This may even build
momentum for the creation of institutional mechanisms of implementation at
The Inter-American Human Rights System [Springer 2019]) describes Latin American States as
“disaggregated” or “heterogeneous” (as opposed to “monolithic” or “homogeneous”), meaning that
there are tensions between governmental bodies on several issues, including the implementation
of human rights, that generate uncoordinated application and even internal conflicts. According to
Parra-Vera, interaction with the IAHRS might mitigate those conflicts and disconnects. Even when
there are no apparent conflicts, IAHRS standards empower intragovernmental actors to push for
human rights–based policies within government structures, navigating complicated frameworks
that often involve separate branches governments, federal systems, and various government agencies.
National mechanisms for implementation of IAHRS standards institutionalize these processes,
enhancing implementation by creating mechanisms that enable internal actors to overcome tensions
and to catalyze constructive interactions.
86 On December 5, 2017, during the Inter-American Human Rights Forum in Washington, the
Inter-American Commission, and the State of Paraguay signed a Memorandum of Understanding

with the goal of developing a “regional SIMORE” (Sistema de Monitoreo de Recomendaciones),
as an effective instrument for systematizing the recommendations and decisions adopted by the
Commission, as well as monitoring them in the region. <https://www.oas.org/es/cidh/docs/acuer
dos/Memorandum-Paraguay-2017.pdf> (accessed January 4, 2022).
87 IACHR, “IACHR Launches Inter-American SIMORE to Monitor Its Recommendations” (June
10, 2020), <http://www.oas.org/en/iachr/media_center/PReleases/2020/132.asp> (accessed January

4, 2022).
88 See <https://www.oas.org/ext/en/human-rights/simore/> (accessed January 4, 2022).
the country level, as well as for the adoption of national SIMOREs by more States
in the region.
In addition to the inter-American SIMORE, the Follow-Up of Recommendations
Section (Sección de Seguimiento de Recomendaciones), established in 2017 as a spe-
cial division at the Organization of American States (OAS), is also a promising initi-
ative. The section monitors compliance with IACHR decisions. The IACHR has also
launched an Impact Observatory, which identifies the impact of recommendations
in promoting social change and consolidates lessons learned.89 In 2019, the IACHR
also launched the Specialized Academic Network of Cooperation with the IACHR,
aiming to strengthen the Commission’s ties with academic institutions through the
provision of technical support to thematic Rapporteurships.90 These institutional
arrangements complement one another, as each pursues a different avenue to in-
crease the impact of the IAHRS. These new institutional arrangements also have
comprehensive thematic mandates that can adapt to match the challenges facing the
region. For example, the Commission has updated the objectives of the first cycle
of the academic network, which will now focus on the impact of the IACHR in the
protection of human rights in the region, including measures taken within the con-
text of the COVID-19 pandemic.91 When updating the objectives of the network,
the Commission made clear that these initiatives are interconnected and are sup-
posed to complement each other. The academic network, for example, could work
on SIMORE data and provide inputs to the Impact Observatory.
In the past few years, the IACHR has also created innovative spe-
cial mechanisms for monitoring its recommendations in cases of severe
human rights violations, such as the Interdisciplinary Group of Independent
Experts of Ayotzinapa92 and the Special Monitoring Mechanism for
89 See IACHR, “Creation of the Inter- American Commission on Human Rights Impact
Observatory,” Resolution 2/19 (September 22, 2019), <https://www.oas.org/en/iachr/decisions/
pdf/Resolution-2-19-en.pdf> (accessed January 4, 2022); see also Flavia Piovesan and Julia Cortez
da Cunha Cruz, “Measuring Transformation: At the 50th anniversary of the American Convention
on Human Rights, a move to maximize its structural impact,” Harvard International Law Journal,
<https://harvardilj.org/2019/02/measuring-transformation-at-the-50th-anniversary-of-the-ameri
can-convention-on-human-rights-a-move-to-maximize-its-structural-impact/> (accessed January
4, 2022).
90 See IACHR, “Call for the Academic Network of Cooperation with the IACHR,” <https://
www.oas.org/en/iachr/activities/academic-network/docs/C onvocatoriaRedAcademica-en.pdf>
91 IACHR, “La CIDH actualiza los objetivos de la Red Académica Especializada y avanza one l
Observatorio de Impacto” (July 22, 2020), <http://www.oas.org/es/cidh/prensa/comunicados/2020/

172.asp> (accessed January 4, 2022).
92 In September 2014, the police from the city of Iguala (Mexico) attacked students of Rural
School of Ayotzinapa, who were accused of illegally taking the bus. Forty-three students disappeared,
nine were killed, and twenty-seven were injured. Following a request for precautionary measures,
the IACHR created a mechanism to guarantee the implementation of the measures ordered by the
IACHR. The mechanism created the Interdisciplinary Group of Independent Experts of Ayotzinapa,
which was charged with overseeing the execution of Precautionary Measures by drawing up search
Nicaragua.93 The work of these mechanisms builds on the tools of the Inter-
American System, following up and coordinating action on precautionary meas-
ures, friendly settlements, working meetings, visits, and public hearings.
These institutional innovations at the country level and within inter-American
institutions are promising because they strengthen the engagement of States,
victims, and civil society with the System. The potential for impact increases
institutions also contribute to sociopolitical changes that lead to human rights
transformations. Recognizing that the mandate to protect human rights is not
fulfilled through the mere publication of a decision, in recent years the IACtHR
and the IACHR have increased their proactive role in the implementation
process, which involves and depends on various stakeholders.
4.2. Sociopolitical Dimension
For the IAHRS to have an impact requires not only institutions and legal
provisions but also actors who mobilize for the implementation of inter-
American standards. Bogdandy and Urueña argue that a human rights commu-
nity of practice is a fundamental element in opening domestic constituencies to
IAHRS standards and to regional transformative constitutionalism, meaning
that NGOs, grassroots organizations, clinics at law schools, domestic courts, civil
servants, scholars, the commissioners and judges of the Inter-American system,
and also politicians with a human rights agenda are key in transforming do-
mestic contexts in a manner that advances IAHRS standards.94
Indeed, the most emblematic cases of IAHRS impact, many of them
discussed in this book, involve local actors promoting the implementation
of inter-American standards as part of a broad campaign to achieve a specific
human rights objective. IAHRS tools and mechanisms are used to document
violations, legitimize the claims of the victims, and provide leverage over deci-
sion makers. These actions affect the coalition of forces within the State, shifting
plans for missing persons, analyzing investigations and the attention given to victims and their
families, and drafting recommendations of public policies related to forced disappearances.
93 In 2018, the Inter-American Commission on Human Rights launched this Special Monitoring
Mechanism and sent employees to Nicaragua to monitor the implementation of the IACHR’s
recommendations in the report “Serious human rights violations in the context of social protests in
Nicaragua,” as well as compliance with precautionary measures.
94 Armin von Bogdandy and Rene Urueña, “International Transformative Constitutionalism in
Latin America” [2020] 3 American Journal of International Law 403. According to the authors, this
community of practice “has created a new legal phenomenon that comprises elements of different
legal orders connected by a common thrust. A wave of new constitutionalism has created domestic
legal settings for a region-wide transformative constitutional project. A community of practice
brought such legal standards to life by attributing a core role to the IACtHR. The resulting body of
law, in turn, strengthens the broader Latin American human rights community.”
key stakeholders from a position of opposition or indifference to human rights

obligations toward support for or openness to the implementation of IAHRS
standards.
Civil society organizations are fundamental to make this shift happen.95 Since
they are immersed in local realities, they can connect the IAHRS to victims of
human rights violations all over the region. Civil society is composed of NGOs,
social movements, association of victims and their family members, and more.
The roles civil society plays and the strategies it adopts are as diverse as the or-
ganizations themselves, meaning that the demands that reach the System and
their place in grassroots campaigns are increasingly diverse. The IAHRS is no
longer viewed as a mere forum in which to denounce violations but as a tool that
can be used by civil society to raise awareness of new issues and to push for social
change at the national or regional levels. In general, the work of civil society to
transform a human rights situation begins long before these organizations begin
to advocate before the IAHRS and finishes long after the IACHR or the IACtHR
acts. Institutions provide the basic architecture of the IAHRS, but civil society
brings people to these institutions and ensures that the institutions serve their
purposes effectively.
Many civil society organizations, however, do not have the capacity to engage
with the IAHRS, due to financial constrains or knowledge barriers. To address
this problem, some organizations have created transnational issue networks and
other types of coalitions. By pooling their resources (drawing on the financial,
technical, and even geographical advantages of different organizations), these
coalitions improve access to the System and therefore should be encouraged.
Nevertheless, more needs to be done to address the systemic challenges that
grassroots movements and smaller civil society organizations face when seeking
access to the IAHRS.
4.3. Cultural Dimension
The impact of the IAHRS also depends on the degree to which domestic
constituencies are open to inter- American standards. In addition to legal
provisions that establish the status of international norms within domestic law,
the legal culture is a key factor influencing the permeability of inter-American
95 On the participation of civil society in the activities of the Inter-American Commission, see
IACHR, “IACHR Expands and Deepens Civil Society Participation in Efforts to Fulfil its Mandate”
(February 9, 2019), <https://www.oas.org/en/iachr/media_center/PReleases/2019/031.asp>
(accessed January 4, 2022). For a broader approach to human rights mobilization and the role played
by civil society, see Beth Simmons, Mobilizing for Human Rights: International Law in Domestic
Politics (Cambridge University Press 2009); for a more recent take, see Kathryin Sikkink, Evidence for
Hope: Making Human Rights Work in the 21st Century (Princeton University Press 2017), 211–219.
norms. Studies have shown that, even in countries where there is no legal ob-
ligation to adopt the decisions and recommendations of the IAHRS, countries
that choose to engage with the System might have higher compliance rates. On
the other hand, in countries where there is an express obligation to comply with
the decisions of the IAHRS, but the legal culture influences national decisions
against implementation, inter-American decisions tend not to be respected.96
A similar logic may apply beyond the legal system, reaching the conduct of
public authorities and the terms of the public debate.
One way to encourage a human rights culture is to integrate human rights into
educational systems. Human rights–based educational programs should occur
at every level, including primary education, but are especially relevant in legal
curricula. Law schools play a defining role in the future of legal systems, as well as
in the mindset of public authorities. Therefore, the integration of inter-American
standards into legal curricula may prove to be an important means of achieving
the transformative impact of the IAHRS. Likewise, the integration of the IAHRS
within research agendas encourages knowledge of and engagement with inter-
American institutions.
In addition, academic institutions may directly engage with the System, pro-
viding technical expertise to the IACHR and the IACtHR, producing knowledge
about the IAHRS, and creating communities of dialogue. Think tanks, research
institutes, and legal clinics are active participants of the System, playing hybrid
roles that mobilize the Commission and the Court and, at the same time, con-
tribute to a culture of engagement with the IAHRS.
States also play a fundamental role in shaping domestic attitudes toward
human rights. In accordance with the principles of good faith and pacta sunt
servanda, State officials should refrain from promoting narratives that are
hostile to human rights, adopting instead a language of rights and duties that
emphasizes States’ legal obligations to guarantee the free and full exercise of
human rights. Capacity-building programs and training for officials in all
branches of the government can also generate long-term effects that permeate
different forms of State action.97 Recognizing this, the IAHRS has partnered with
96 In the chapter “From Compliance to Engagement: Assessing the Impact of the Inter-American
Court of Human Rights on Constitutional Law in Latin America” (in Par Engstrom (ed.), Inter-
American Human Rights System [Springer 2019]), Marcello Torelly examines the different approaches
of four countries (Brazil, Uruguay, Chile, and Mexico) to incorporation of and compliance with
decisions of the IAHRS. Torelly concludes that constitutional provisions ordering the implemen-
tation of decisions are not as effective in countries where the legal culture does not value human
rights and international law. In countries where the legal culture is more open, however, international
law can “be used as an interpretative tool in a reflective process, and as a normative source alongside
domestic law” (p. 119), even where international norms and decisions do not enjoy constitutional
status.
97 See Paloma Angélica Escobar Ledezma et al. V. Mexico [2013] IACHR, Report No. 51/ 13,
Case 12.551. In this case, the Commission included the following recommendation: “Continue
various stakeholders to promote capacity-building programs, some of which

target State authorities.
One example of an academic endeavor encouraging a culture of constructive
engagement with the IAHRS is the Ius Constitutionale Commune en América
Latina (ICCAL) project of the Max Planck Institute for Comparative Public Law
and International Law. The ICCAL project is based on continuous cooperation
among IAHRS experts who are or have been involved with the System through
their work in academia, civil society, government, or IAHRS institutions them-
selves. The project’s conceptual framework is based on the existence of a shared
regional experience among Latin American countries, which encompasses
IAHRS standards, fundamental rights embedded in national constitutions, and
norms and practices that enable human rights frameworks to permeate the na-
tional and international law.98 Described as a “legal but also a cultural and polit-
ical project steeped in the structural transformation of public law,”99 the project
aims to strengthen the ICCAL phenomenon. It promotes research, learning,
and cooperation among experts in the region with the goals of increasing the
opening of domestic legal systems to the IAHRS and enhancing the effectiveness
and legitimacy of IAHRS institutions.100
adopting public policies and institutional programs aimed at restructuring stereotypes concerning
the role of women in the state of Chihuahua and promoting the eradication of discriminatory so-
ciocultural patterns that impede their full access to justice, including training programs for public
officials in all of the branches of the administration of justice and the police, and comprehensive pre-
vention policies.” As an example of capacity building program for national judges on human rights
and conventionality control, see the National Pact for Human Rights in the Judiciary, adopted by the
Brazilian National Council for Justice in 2022.
98 For more information on ICCAL and its conceptual framework, see Armin von Bogdandy et al.
(eds.), Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune
(Oxford University Press 2017); Armin von Bogdandy et al., “Ius Constitutionale Commune in
América Latina: A Regional Approach to Transformative Constitutionalism” (2016) MPIL Research
Paper No. 2016-21, <https://ssrn.com/abstract=2859583 or http://dx.doi.org/10.2139/ssrn.2859
583> (accessed January 4, 2022).
99 Max Planck Institute for Comparative Public Law and International Law, “Ius Constitutionale
Commune en América Latina,” <https://www.mpil.de/en/pub/research/areas/comparative-public-

law/ius-constitutionale-commune.cfm> (accessed January 4, 2022).
100 Some of the research stemming from the ICCAL project includes: Armin von Bogdandy, Flávia
Piovesan, and Mariela Morales Antoniazzi (eds.), Constitucionalismo transformador, inclusão e

direitos sociais: desafios do Ius Constitutionale Commune Latino-Americano à luz do Direito Econômico
Internacional (Juspodivum 2019); Armin von Bogdandy et al. (eds.), La jurisdicción constitucional
en América Latina: un enfoque desde el Ius Constitutionale Commune,(MPIL-U. Externado 2019);
Eduardo Ferrer Mac- Gregor, Mariela Morales Antoniazzi, and Rogelio Flores (eds.), Pantoja
Inclusión, Ius Commune y justiciabilidad de los DESCA en la jurisprudencia interamericana
El caso Lagos del Campo y los nuevos desafíos (IECQ 2019); Armin von Bogdandy et al. (eds.), El
constitucionalismo transformador en América Latina y el derecho económico internacional: de la
tensión al diálogo (UNAM-IIJ-MPIL 2018); Armin von Bogdandy and Franz Christian Ebert, “El
Banco Mundial frente al constitucionalismo transformador latinoamericano: panorama gen-
eral y pasos concretos” (2018) MPIL Research Paper Series 2018-32; René Urueña, “Después de la
fragmentación: ICCAL, derechos humanos y arbitraje de inversiones” (2018) MPIL Research Paper
Series 2018-30; Manuel Gongora Mera, “El constitucionalismo interamericano y la fragmentación
The Inter-American System has established itself as an important and effective

instrument for the protection of human rights. It has made visible the struggles
for rights and justice in Latin America, revealing the region’s main challenges and
aspirations by providing a forum where States, victims, civil society, the IACHR,
and the IACtHR interact within the OAS framework. Mobilized by civil society,
the System has advanced the protection of human rights in Latin America.
Transformative impact involves three dimensions. First, transformative im-
pact is facilitated by conducive institutional frameworks. Adopting an imple-
mentation architecture could increase the impact of the IAHRS at the regional
and national levels. Such architecture should include monitoring mechanisms
(including mechanisms of implementation, platforms, indicators, and national
laws), as well as a network of institutional arrangements to monitor compliance.
At the same time, the IACHR and the IACtHR should continuously improve
their own mechanisms with a view to increasing their transformative impact.
Second, transformative impact involves sociopolitical change. IAHRS
decisions alter the power dynamics among social actors by empowering civil
del derecho internacional: posicionando al ICCAL en el debate sobre colisiones entre regímenes
normativos” (2018) MPIL Research Paper Series 2018-29; Jose Gustavo Prieto Muñoz, “El Ius
Constitutionale Commune frente al derecho internacional de inversiones. Desafíos en la construcción
de principios comunes” (2018) MPIL Research Paper Series 2018-14; Armin von Bogdandy, Mariela
Morales Antoniazzi, and Eduardo Ferrer Mac-Gregor (eds.), Ius Constitutionale Commune en
América Latina: textos básicos para su comprensión (IECQ y MPIL 2017); Juan C. Herrera, “The Right
of Cultural Minorities to Binding Consent: Case Study of Judicial Dialogue in the Framework of a Ius
Constitutionale Commune en América Latina” (2017) MPIL Research Paper Series 2017-11; Armin
von Bogdandy, Mariela Morales Antoniazzi, and Flávia Piovesan (eds.), Ius Constitutionale Commune
Na América Latina, Volume I: Marco Conceptual (Juruá Editora 2016), Tomo I; Armin von Bogdandy,
Mariela Morales Antoniazzi, and Flávia Piovesan (eds.), Ius Constitutionale Commune Na América
Latina, Volume II: Pluralismo e Inclusão (Juruá Editora 2016), Tomo II; Armin von Bogdandy, Mariela
Morales Antoniazzi, and Flávia Piovesan (eds.), Ius Constitutionale Commune Na América Latina,
Volume III: Diálogos Jurisdicionais e Controle de Convencionalidade (Juruá Editora 2016); Armin
von Bogdandy, Mariela Morales Antoniazzi, and Eduardo Ferrer Mac-Gregor (eds.), Construcción
de un ius constitutionale commune en América Latina: contexto, estándares e impacto a la luz de la
Corte Interamericana de Derechos Humanos (BUAP, UNAM-IIJ, CIDH y MPIL 2016); Armin von
Bogdandy, “Ius Constitutionale Commune en América Latina: una mirada a un constitucionalismo
transformador” [2015] 4 Revista Derecho del Estado 3; Mariela Morales Antoniazzi, Protección
supranacional de la democracia en Suramérica: un estudio sobre el acervo del ius constitutionale com-
mune (UNAM-IIJ 2014); Armin von Bogdandy, “Ius constitutionale commune,” in Eduardo Ferrer
Mac-Gregor, Fabiola Martínez Ramírez, and Giovanni A. Figueroa Mejía (coords.), Diccionario de
Derecho Procesal Constitucional y Convencional (2. edn, II-J UNAM 2014); Armin von Bogdandy,
Héctor Fix-Fierro, and Mariela Morales Antoniazzi (eds.), Ius constitutionale commune en América
Latina. Rasgos, potencialidades y desafios (IIJ-UNAM-MPIL-IIDC 2014); Armin von Bogdandy,
Mariela Morales Antoniazzi, and Eduardo Ferrer Mac-Gregor (eds.), Ius Constitutionale Commune
en Derechos Humanos en América Latina (MPIL-Porrúa 2013); Armin von Bogdandy et al. (eds.),
Construcción y papel de los derechos sociales fundamentales: hacia un ius constitutionale commune
en América Latina (UNAM-IIJ 2011); Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, and
Mariela Morales Antoniazzi (eds.), La justicia constitucional y su internacionalización. ¿Hacia un ius
constitucionale commune en América Latina?, II (MPIL-UNAM 2010), Tomos I y II.
society,101 pressuring States, and generating political will to effect human rights
change. In other words, IAHRS decisions change the political equation as they
open spaces of dialogue with State authorities,102 provide tools for grassroots ac-
tors, and more.
Third, transformative impact requires cultural transformation. An often-
neglected aspect of implementation is the creation of a human rights culture.
This culture can be fostered through training programs for public authorities and
the media, as well as human rights–based educational programs and academic
engagement with the IAHRS. These actions can go a long way toward promoting
human rights within domestic culture.
The ability of the IAHRS to impact realities on the ground depends on the
dynamic interaction of these three dimensions. There might be cases of trans-
formative impact in which one of these elements stands out, and even cases
in which the different dimensions work in opposition to each other. In many
cases examined in this book, however, the three dimensions strengthen each
other. These positive interactions catalyze transformations, enabling the IAHRS
to advance the protection of human rights in the region. Understanding these
interactions may enable the System to have an even greater impact of the future,
strengthening its ability to deliver on its mandate and to transform the situation
of human rights throughout the hemisphere.
101 Par Engstrom and Peter Low (n. 16) emphasized the role of NGOs in litigation before the
IAHRS. Due to the highly specialized nature of the system and the costs associated with litigation,
most cases are brought before the Inter-American Commission by a coalition of two or more NGOs,
including at least one international organization with experience in human rights litigation and one
domestic organization that is closer to the affected communities.
102 According to Oscar Parra-Vera (n. 85), the decisions and recommendations of the IAHRS can
have great impact in intra-State conflicts, that is, when two entities from the same State are in dis-
agreement regarding the implementation of certain rights, especially when these conflicts are be-
tween national and subnational entities. Tom Pegram and Nataly Herrera Rodriguez, “Bridging the
Gap: National Human Rights Institutions and the Inter-American Human Rights System,” in Par
Engstrom (ed.), Inter-American Human Rights System (Springer 2019), 167–198) also emphasize the
need for dialogue between the institutions of the IAHRS and national human rights institutions, such
as ombudsmen and human rights commissions, which would help bridge the gap between the inter-
national system and local realities.
I.4
Current Issues and Common Challenges
for the Protection of Human Rights
in Europe, the Americas, and Africa
By Rainer Grote
1. Introduction
Until a decade ago, the trends toward an ever more expansive protection of
human rights at the regional level seemed unstoppable in Europe, the Americas,
and Africa. In the 1990s, regional human rights systems gained in membership
and political salience, the jurisprudence of European and American human
rights courts increasingly permeated the domestic legal systems of member
States, and the African Commission of Human Rights became more asser-
tive in its interpretation of the African Charter on Human and Peoples’ Rights
(ACHPR), while the Protocol on the establishment of an African Court on
Human and Peoples’ Rights (ACtHPR) presented in 1998 immediately won
the adherence of the quasi-totality of the Organisation of African Unity (OAU)
membership, although it would take almost another decade before the Court be-
came operational.1 However, over the last decade these positive dynamics have
fundamentally changed: member States have started to question and even re-
ject the rulings of regional human rights courts, reforms have been promoted
that no longer aim to strengthen and improve the powers of regional human
rights bodies but instead try to limit their scope in favor of preserving a cen-
tral role for national politicians and judges, and some member States have
even partially or totally ended their participation in the regional system (see
section 3). Some scholars see in these developments the twilight2 or perhaps
the end3 of the human rights era, an era proclaimed after the end of the Cold
1 See Alexandra Huneeus and Mikael Rask Madsen, “Between Universalism and Regional
Law and Politics: A Comparative History of the American, European, and African Human Rights
Systems” [2018] 16 International Journal of Constitutional Law 151–159.
2 Eric A. Posner, The Twilight of Human Rights Law (Oxford University Press 2014).
3 Makau Mutua, “Is the Age of Human Rights Over?,” in Sohia A. McClennen and Alexandra
Schultheis Moore (eds.), The Routledge Companion to Literature and Human Rights (Routledge
2016), 450.
Rainer Grote, Current Issues and Common Challenges for the Protection of Human Rights in Europe, the Americas,
and Africa In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia
Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Rainer Grote 2024.
DOI: 10.1093/oso/9780197744161.003.0005
Current Issues and Common Challenges 77
War.4 While this pessimism may be overblown,5 it can hardly be denied that inter-
national human rights protection, and regional rights protection in particular—
which has been in its vanguard for most of the last thirty years—have entered
a new phase marked by the twin challenges of neo-sovereigntism and nation-
alism.6 The size and significance of these challenges can only be understood if
they are set against the advances in human rights protection that were achieved
in the preceding “golden age of human rights” and the resulting strengths and
weaknesses of regional human rights systems (section 2). The pushback against
international human rights protection has taken a variety of forms, from total or
partial withdrawal from regional human rights systems and reform efforts aimed
at curbing the powers of international human rights bodies to selective noncom-
pliance with unpopular rulings by international human rights bodies (section
3). Recent reform debates in the Americas and Europe have seen the proponents
of a vigorous international human rights protection go on the defensive (sec-
tion 4). This raises the question of how to strengthen the resilience of regional
human rights institutions in an increasingly adverse international environment
(section 5). Any such discussion must take into account the similarities as well
as the differences between regional systems. While they have been shaped by the
central ideas and practices of the global liberal order, which came into being in
the 1990s,7 they also present important variations with regard to the speed and
depth of institutionalization and legalization, as well as the geopolitical context
in which they are operating. All of these factors are likely to influence the way in
which they confront the new challenges.
2. The Expansion of Regional Human Rights Protection

after the End of the Cold War
The dynamic evolution of regional human rights protection in the late

twentieth and early twenty- first century was marked by four interrelated
developments: institutionalization, judicialization, diversification of remedial
practice, and embeddedness. Together they have transformed the character
of regional human rights systems from the human rights diplomacy that was
their dominant mode of functioning during much of the Cold War era to the
4 Most notably: Louis Henkin, The Age of Rights (Colombia University Press 1990).
5 See Mutua (n. 4), 455–456, who, despite arguing that the human rights era has ended, never-
theless concedes that this does not necessarily signify the impotence of human rights norms and
values: “The internationalization–universalization of human rights tenets and principles is so deeply
embedded in the psyches of states and cultures around the world that it is irreversible.”
6 Huneeus and Madsen (n. 1), 157.
7 Ibid., 136–137.
78 Rainer Grote
progressive development and enforcement of international human rights law

that characterized their activities in the following decades.
2.1. Institutionalization
The institutionalization of international human rights protection has been taken

to its most advanced level in Europe. The first system to provide for a full set
of institutions to monitor human rights on the international plane with both
a Commission and a Court was the regional system created by the European
Convention on Human Rights (ECHR). This European System did not initially
make judicial supervision over the implementation of obligations under the
Convention by the State parties mandatory. Instead, the acceptance of both the
jurisdiction of the European Court of Human Rights (ECtHR) and the right to
individual petition before the Commission, which would later become emblems
of the European human rights regime, were optional in the 1950 Convention.8 It
was only in the 1990s, when the end of the Cold War had completely transformed
the geopolitical landscape, that an opportunity presented itself for a far-reaching
overhaul of the European human rights machinery. The Council of Europe
(CoE) welcomed practically all Central and Eastern European countries into the
System. Between 1990 and 2007, twenty new member States, including Ukraine,
Russia, and the successor States of the former Yugoslavia, joined the CoE and
the ECHR. At the same time a major institutional reform streamlined the ECHR
System. Protocol No. 11, which entered into force in 1998, abandoned the dual
system of Commission and Court and created a unified structure of human
rights reviews centered on the ECtHR. Both its compulsory jurisdiction and the
rights of individuals in all member States to file applications for violations of their
Convention rights after the exhaustion of domestic remedies were made man-
datory and no longer depended on their acceptance via separate declarations
by member States. The Court itself was transformed into a two-tier structure,
consisting of three-and seven-member panels that deal with the admissible
applications on the merits, and a seventeen-member Grand Chamber that hears
appeals against panel rulings that raise issues of fundamental importance to the
development of the Convention.
In the Americas, on the other hand, the development of regional human
rights institutions have followed a more protracted path. While the Organization
of American States (OAS) called for the creation of an Inter-American Court
dedicated to the protection of human rights as early as 1948— when the
American Declaration of Human Rights (ADHR) was adopted—the dynamics
8 Ibid., 141.
of the unfolding Cold War meant that the judicial model of international rights
protection was quickly set aside.9 It would take another decade before the
Inter-American Commission for Human Rights was created, with a limited
mandate that gave it powers to educate and provide consultation only. It was the
Commission itself that decided to move beyond these narrow limits and began
asserting its authority not only to study and promote human rights in the ab-
stract, but to protect them in specific situations and conduct in-country visits
(with State consent) to this effect. In 1967, the OAS wrote the powers that the
Commission had been claiming in practice into its mandate and promoted
the Commission to the status of a principal organ of the OAS.10 Two years later
the American Convention on Human Rights (ACHR) was adopted, which also
provided for the establishment of an Inter-American Court of Human Rights
(IACtHR) whose jurisdiction was subject to the acceptance by member States
through a separate declaration. As in the early European System there is no di-
rect petition to the Court. Individual petitions can only be referred to it by the
Commission, and the Commission will do so only if its efforts to reach a non-
adjudicative resolution have failed. The Commission used this power after the
entry into force of the Convention in 1978 to withhold cases from the Court
for several more years, confining the Court’s activity to requests for advisory
opinions by States until the end of the following decade. By then, only nine States
had accepted its jurisdiction, with important States like Brazil and Mexico no-
tably absent.11
The way toward a fully fledged regional human rights system was even longer
in Africa. When the ECHR was adopted in 1950, large parts of Africa were still
under the control and jurisdiction of European colonial powers.12 It was only in
1981 that the foundations of an autochthonous African system of human rights
protection, with a heavy emphasis on the rights of decolonized African peoples
supplementing the traditional focus on the rights of the individual, were put
in place through the adoption of the African Charter on Human and Peoples’
Rights. The African Commission on Human and Peoples’ Rights was created one
year after the ACHPR went into effect in 1986, and the establishment of a regional
human rights court took even longer. As in the other regional systems, African
States opted for a system that allowed States to choose their level of commit-
ment, resulting in a protracted institutionalization process. The Protocol on the
establishment of the African Court on Human and Peoples’ Rights (ACtHPR)
signed by fifty-two member States in 1998 made individual access to the Court
optional and set the number of ratifications required for the Court to come into
9 Ibid., 143.
10 Ibid., 145.
11 Ibid., 146.
12 Ibid., 141.
80 Rainer Grote
existence at fifteen. The Protocol finally entered into force in 2004, and it took
another three years before the Court became fully operational. By that time, the
enthusiasm for powerful international human rights institutions had already
slowed considerably, in Africa and elsewhere: of the thirty States that ratified the
Protocol on the establishment of the ACtHPR, only nine have ever made the op-
tional declaration under Article 34(6) to accept direct referral to the Court by an
individual or an NGO.13
2.2. Judicialization
The work of the European human rights bodies took the form of legal diplomacy
rather than human rights adjudication proper in the early stages of their exist-
ence. This was not surprising in the case of the Commission, whose mandate
expressly covered and even favored efforts to reach a friendly settlement with
member States charged with a violation of Convention rights. The same approach
also applied to the early jurisprudence of the Court: while emphasizing its posi-
tion as the final arbiter on the meaning of the Convention’s rules, the Court also
signaled its readiness to accommodate the security and other legitimate concerns
of member States and sought solutions that did not alienate existing or prospec-
tive member States. This changed only after the big Western European States like
the United Kingdom, France, and Italy accepted the optional clause on ECtHR
jurisdiction and individual petition. The geopolitical context changed decisively
as the major European powers shed their colonial empires and the Cold War
détente created an opening for a new, more progressive European human rights
law.14 The Court seized this opportunity vigorously by issuing its first landmark
decisions and in doing so set out the key legal features of the Convention: that it
(1) imposes binding obligations on member States, (2) is a dynamic legal instru-
ment to be interpreted in light of present-day conditions and not the conditions
that existed at the time of its drafting,15 and (3) intends to guarantee rights that
are not merely theoretical or illusory but practical and effective.16
Not surprisingly, the IACtHR followed a different trajectory that—like the
developments in Europe—reflected the rapidly changing geopolitical context in
the region. When the IACtHR handed down its first judgment in the Velasquez
Rodriguez case in 1988, the region was in the midst of a dramatic transformation,
13 Tom Gerald Daly and Micha Wiebusch, “The African Court on Human and Peoples’
Rights: Mapping Resistance Against a Young Court” [2018] 14 International Journal of Law in
Context 294, 300.
15 Tyrer v. United Kingdom [1978], ECtHR, Application No. 5856/72, A/26, para. 31.
16 Airey v. Ireland [1979], ECtHR, Application No. 6289/73, A/32, para. 24.
as the authoritarian regimes still in office had already started to lose their grip
on power. In this context, the IACtHR established itself as a locus for rights pro-
tection and political integrity, accepting the rule of prior exhaustion of domestic
remedies in principle but quickly rebutting that preference in favor of its own au-
thority.17 This started to change in the mid-1990s, when pressure increased from
civil society actors to shift focus from the mere promotion of human rights to the
effective protection and enforcement of the rights of individuals and those groups
within the newly established democracies that had historically suffered from ex-
clusion and systemic discrimination, like Latin America’s Indigenous peoples.18
It was also during this phase that the IACtHR embraced the ECtHR’s living in-
strument doctrine, stressing that “[h]‌uman rights treaties are living instruments
whose interpretation must consider the changes over time and present-day
conditions.”19 However, it did so in a characteristic manner: refusing to coun-
tenance any “margin of appreciation” doctrine for governments, legislatures,
and courts as partners in the progressive development of Convention rights, as
the ECtHR had done, on the grounds that is was unsuitable to the specific Latin
American context of weak rule of law principles.20
The African Commission and the African Court have not made explicit ref-
erence to the living instrument doctrine in their decisions.21 However, that does
not mean that the organs of the African Charter apply a fundamentally dif-
ferent methodology in the interpretation and application of the provisions of the
African Charter. On the contrary, their case law indicates that they also follow
the requirement laid down in Article 31 of the Vienna Convention: a treaty shall
be interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in light of their object and purpose.
The object and purpose of a human rights treaty suggest that its provisions have
to be interpreted so as to give real, effective protection to the rights and freedoms
it guarantees. In accordance with this principle, the African Commission has
held that the scope of a protected right (for example, the right to life) must not be
construed narrowly,22 whereas the limitations to a right should be given a narrow
interpretation.23 In the Zongo case, the ACtHPR adopted a similarly broad ap-
proach to the protection offered by the African Charter, in particular with regard
to the concepts of moral damages and victims.24 Unlike the IACtHR, the African
17 Jorge Contesse, “Contestation and Deference in the Inter-American Human Rights System”
[2016] 79 Law & Contemporary Problems 123, 130.

18 Contesse (n. 17), 123.
19 Sánchez v. Honduras [2003], IACtHR, Ser. C No. 102, para. 56.
20 Contesse (n. 17), 134, quoting the former President of the IACtHR, Antonio Cançado Trindade.
21 Magnus Killander, “Interpreting Regional Human Rights Treaties” [2010] 7(13) SUR 145, 150.
22 Aminu v. Nigeria [2000], ACHPR, Communication No. 225/1997, para. 18.
23 Legal Resources Foundation v. Zambia [2001], ACHPR, Communication No. 211/1998, para. 70.
24 Zongo and Others [2011], ACtHPR, Ruling on Reparations, Application No. 013/2011.
82 Rainer Grote
Commission has expressly endorsed the margin of appreciation doctrine in the

meaning given to it by the ECtHR.25
2.3. Diversification of Remedial Practice
A key factor in what member States increasingly came to view as the growing
intrusiveness of international human rights bodies in the domestic sphere has
been the diversification of their remedial practices. For more than three decades
after becoming operative in 1959, the ECtHR followed the least intrusive
remedy approach by sticking to declaratory judgments stating that a violation
of Convention rights by the defendant State party had indeed been found, but
leaving the choice of the appropriate remedy to the member State concerned,
subject to the supervision of the Committee of Ministers—the body compe-
tent to monitor the execution of judgments under the Convention.26 While the
Convention expressly authorizes the ECtHR to afford just satisfaction to the in-
jured party if the internal law of the High Contracting Party concerned allows
only partial reparation, the ECtHR opted for a narrow interpretation and repeat-
edly regarded the finding of a violation to be a strong form of moral satisfac-
tion in and of itself.27 For its part, the Committee of Ministers has usually shown
deference to member States in the exercise of its supervisory functions, viewing
them as primarily responsible for deciding how to remedy defects in their legal
system identified in a ruling by the ECtHR.28
The dominance of the declaratory model of human rights adjudication under
the ECHR started to change when the Court was increasingly confronted with
grave human rights problems of a structural character following the expansion
of the Convention system toward Central and Eastern Europe in the 1990s; but
even then change occurred only gradually and within certain limits. The Court
first moved cautiously beyond the declaratory model in a number of cases con-
cerning the unlawful seizure of property. Court held that in these cases priority
had to be given to the restitution of the property concerned.29 In a second phase,
the Court developed a test of “logical requirement or necessity” with respect
to restitution ad integrum to order nonmonetary remedies in cases concerning
other rights than the right to property.30 At the same time, the Court became
25 Killander (n. 22), 152.

26 Başak Çalı, “Explaining Variation in the Intrusiveness of Regional Human Rights Remedies in
Domestic Orders” [2018] 16 International Journal of Constitutional Law 214, 220.
27 Çalı, (n. 26), 220.
28 Alexandra Huneeus, “Reforming the State from Afar: Structural Reform Litigation at the
Human Rights Courts” [2015] 40 Yale Journal of International Law 1, 8.

29 Papamichadoupoulos and Others v. Greece [1995], ECtHR, Application No. 14556/89; Çakıcı
v. Turkey [1999], ECtHR Application No. 23657/94.

30 Çalı (n. 26), 222.
bolder with regard to general remedies, no longer shying away from directly
addressing the causes of abusive State behavior and practices in domestic legis-
lation, calling openly for the amendment of the provisions and statutes on which
the unlawful practices were based.31 The trend toward more intrusive remedies
received a further boost with the introduction of the pilot judgment procedure
in 2004. Pilot judgments were introduced in response to the large number of
repeated cases often coming from new member States in Central and Eastern
Europe, which are rooted in systemic defects in the legal systems concerned: ei-
ther the existence of poorly drafted legislation or the absence of any appropriate
legislation, which give rise to a large number of similar applications concerning
the same structural problem. By declaring one of the many cases a pilot case, the
ECtHR is able to identify the structural problem at the root of many cases and
order its removal through the introduction of the appropriate domestic legis-
lation. However, the pilot judgment procedure is less intrusive than it seems at
first sight, as the ECtHR under this procedure first informally consults with the
respondent State about whether a pilot judgment is seen as helpful to address the
systemic defect and only goes ahead with it if the latter signals its willingness to
implement the legislative remedy framed by the Court.32
In contrast to the European Court, the Inter-American Court began life in
1979 by overseeing a region haunted by military dictatorships and civil wars.33
In this environment, the IACtHR felt that it had to tread cautiously, focusing
on determining whether there had been a violation of the Convention and the
granting of monetary remedies, although Article 63 of the ACHR gives the Inter-
American Court a broader remedial mandate than its European counterpart.34 It
also suggested specific actions that the defendant State should undertake to come
into compliance with the ACHR. In the Velásquez Rodriguez case, the IACtHR
suggested that Honduras had to investigate and punish forced disappearances.35
However, this was not included in the remedial section of the judgment, with the
consequence that Honduras was deemed to have complied with the judgment
31 See Ürper and Others v. Turkey [2009], ECTHR, Application Nos. 14526/ 07 et al., (Second
Section), in which the Court traced the violations of the journalists’ rights under Article 10 ECHR,
which it had identified expressly and directly to specific provisions in Law No. 3713 of Turkey.
32 Çalı (n. 26), 224, who therefore speaks with regard to these cases of “negotiated intrusiveness.”
33 Huneeus (n. 28), 9.
34 Ibid., 8: According to Article 63 ACHR: “If the Court finds that there has been a violation of a
right or freedom protected by this Convention, the Court shall rule that the injured party be ensured
the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or freedom be
remedied and that fair compensation be paid to the injured party.” By contrast, Article 41 ECHR
merely stipulates: “If the Court finds that there has been a violation of the Convention or the
protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
35 Velásquez Rodríguez v. Honduras [1989], IACtHR, Ser. C No. 7, para. 34.
84 Rainer Grote
once it had paid compensation to the victims, even if the State continued to deny
and cover up State-sponsored forced disappearances.36
However, with the return to democracy for the vast majority of member
States, the space for a more exacting jurisprudence increased. In 1996, the
IACtHR issued several reparatory rulings addressing State-sponsored violence,
ordering the defendant States to pay monetary compensation to the victims, as
it had done in earlier cases, but in addition requiring them to undertake certain
acts to remedy the violation of Convention rights it had identified. Rather than
letting the respondent State choose for itself the manner of righting the wrong,
the Court demanded specific remedial measures, including measures that were
designed to bring about structural change,37 such as derogating amnesties and
grappling with the complex power structure underlying impunity.38 As it went
on, the IACtHR diversified its remedial practice still further, enumerating a sub-
stantive list of measures that must be taken by States and often adding to this list
of orders “creative” noncompensatory remedies, that is, remedies not normally
available under domestic law and that seek to recognize the humanity and the
dignity of the victim.39 Since the 2000s, the IACtHR has further deepened the
intrusiveness of its judgments by attaching fixed time limits for compliance with
the specific remedies it has ordered.40
Unlike the ECtHR, the Inter-American Court has claimed for itself a central
role in supervising compliance with its remedial orders.41 Although no provision
in the ACHR expressly refers to the power of the IACtHR to monitor the com-
pliance of its orders, the Court has held that its monitoring powers are inherent
in Articles 67 and 68(1) of the Convention, which require States to comply fully
and promptly—using all necessary means and mechanisms—with the decisions
of the Court.42 It has developed an increasingly intricate system of tracking com-
pliance through a succession of judgments up to the time when the respondent
State has complied to the satisfaction of the Court with all its remedial orders.
Member States have accepted the practice, submitting compliance reports and
taking part in special compliance hearings at the Court’s request.43
Similar to the other regional bodies, the initial practice of the organs of the
ACHPR followed a cautious approach in the development of remedies. In the
36 Huneeus (n. 28), 9.

37 Flávia Piovesan, “Ius Constitutionale Commune latinoamericano en derechos humanos e
impacto del Sistema Interamericano: rasgos, potencialidades y desafíos,” in Armin von Bogdandy,
Héctor Fix Fierro, and Mariela Morales Antoniazzi (coords.), Ius Constitutionale Commune en
América Latina. Rasgos, potencialidades y desafíos (IIJ-UNAM-MPIL-IIDC 2014), 61–84.
38 Ibid., 10.
39 Çalı (n. 26), 218.
40 Ibid., 218.
41 Huneeus (n. 28), 10.
42 Baena-Ricardo v. Panama [2003], IACtHR, Competence, Ser. C No. 104, para. 131.
43 Huneeus (n. 28), 11.
early years, the decisions of the African Commission simply had a declaratory
function and contained no remedial section.44 This changed in 2000, when
for the first time the Commission specified a wide variety of nonmonetary
remedies, including the opening of an independent inquiry to clarify the fate of
persons thought to have disappeared and the prosecution of the authors of the
violations.45 Since then the Commission has increasingly focused on remedies
and guarantees of nonrepetition tailored to the specific needs of the victims
of violations, like the release of those wrongfully detained, the transfer of ac-
cused persons from one part of the country to another, or the establishment of
a commission to determine the level of compensation required.46 The African
Court, on the other hand, has so far only delivered a limited number of viola-
tion judgments and reparation orders. The decisions it has issued, however, seem
to indicate that it is prepared to order a diverse range of remedies based on the
specific facts of the individual cases. In particular, it has adopted a broad inter-
pretation of moral damages, recognizing that they do not only cover nonmaterial
changes in the living conditions of the victims themselves but also include the
suffering and emotional distress of family members.47 The Court has also been
prepared to order individual measures in politically charged cases, like the stay
of the arrest warrant against the presidential candidate Guillaume Soro in Côte
d’Ivoire pending the Court’s final decision on the merits, a decision which im-
mediately triggered the respondent State’s decision to withdraw its declaration
recognizing the right of individual petition to the Court.48
The basic design of the African system on human rights with regard to
monitoring compliance is closer to the European than to the American system.
Responsibility to ensure proper implementation of the decisions issued by
the Court and the Commission rests primarily with the political bodies, the
Executive Council, and the Assembly of the African Union. However, on the
basis of a provision in the Protocol on the African Court of Human Rights, which
requires the Court to specify cases of noncompliance in its regular activity report
to the policy organs, the Court itself has to ensure that information is provided
to it on the status of compliance by member States, although the details of such a
follow-up mechanism were still under consideration in early 2020.
44 Çalı (n. 26), 224.

45 Malawi African Association, Amnesty International, Ms. Sarr Diop, and Other v. Mauritania
[2010], ACHPR, Communication Nos. 54/91, 61/91, 98/93, 164/97, to 196/97, and 210/98.
46 Çalı (n. 26), 224.
47 ACtHPR, Zongo and Others, paras. 45–50.
48 Tetevi Davi and Ezéchiel Amani, “Another One Bites the Dust: Côte d’Ivoire to End Individual
and NGO Access to the African Court” (2020), EJIL Talk!, https://www.ejiltalk.org/another-one-
bites-the-dust-cote-divoire-to-end-individual-and-ngo-access-to-the-african-court/ (accessed
April 6, 2022).
86 Rainer Grote
2.4. Embeddedness
Another important development strengthening the role of regional human rights

bodies, and regional courts in particular, has been the growing embeddedness
of regional human rights law in domestic legal systems. In Europe, all member
States of the CoE have incorporated the ECHR into national law. While some
countries have limited themselves to giving the ECHR the same rank as ordi-
nary (federal) statutes, others have opted to place them above the (federal) stat-
utes but below their national constitutions. In exceptional cases, the Convention
enjoys the rank of formal constitutional law (Austria) or is at least part of sub-
stantive constitutional law (Switzerland).49 A similar development took place in
Latin America. As part of the transition to democracy, since the end of the 1980s
countries have adopted new constitutions or amended existing constitutions.
A key feature of this reform movement was States’ commitment to international
human rights principles. Many of the reforming countries included provisions
in their new or amended constitutions that accorded the international human
rights treaties, foremost among them the ACHR, precedence either over ordi-
nary (statutory) law or even constitutional rank.50
This had the immediate effect of enhancing the role of regional human rights
courts as the final arbiters on the meaning and scope of the treaty provisions. As
references by domestic lawyers and judges to the regional human rights treaties
increased, regional courts moved to the center of the transnational networks in-
tegrating national and international law on human rights ever more closely. The
growing role of fundamental rights in the jurisprudence of newly established or
reformed national constitutional courts meant that regional human rights courts
started to act as de facto constitutional courts once they became the last fora in
which human rights claims that had failed at the national level could be argued.51
While this shift happened gradually in Europe, it occured rather suddenly in
the Inter-American System with the introduction of the conventionality control
doctrine by the IACtHR in 2006. In the Almonacid judgment, the Court held that
all courts in States under its jurisdiction are obligated to examine the compati-
bility between the domestic law they are supposed to apply to a case before them
with the provisions of the ACHR, and to discard any domestic regulations that
fail to conform to its clauses as authoritatively interpreted by the IACtHR.52 This
49 Frank Hoffmeister, “Germany: Status of European Convention on Human Rights in Domestic
Law” [2006] 4 International Journal of Constitutional Law 722.

50 Jorge Contesse, “Resisting the Inter-American Human Rights System” [2019] 44 Yale Journal of
International Law 179, 186.

52 Almonacid Arellano and Others v. Chile [2006], IACtHR, Ser. C No. 154, para. 124.
was a controversial decision for several reasons. The first objection was that the
doctrine lacks an actual basis in law as the American Convention does not con-
tain any rule requiring national judges to carry out this review.53 Secondly, the
ruling seemed to imply that all national courts have to exert a judicial review of
legislation, ignoring the considerable differences between the various national
systems of judicial review within the Inter-American System, where countries
with a concentrated system exist alongside others following the model of dif-
fuse control.54 Finally, the judgment could be understood as suggesting that the
ACHR is self-executing in all States that have ratified it and that not only the
Convention but the decisions of the IACtHR interpreting it are directly binding
on domestic courts.55
3. The Backlash against the Increasing Scope and

Intrusiveness of Regional Human Rights Jurisprudence
In the last decade, however, the dynamic expansion of human rights protec-
tion has largely ground to a halt. In all regional systems there have been various
forms of pushback and even backlash.56 As regional human rights law increas-
ingly permeated the domestic legal systems of member States and the remedial
practice of the regional human rights bodies and the courts in particular grew
more intrusive in the 1990s and 2000s, this change in the dynamics of human
rights protection has not been totally unexpected. It received a strong boost from
the changing geopolitical context in the wake of the global financial crisis of
2008–2009, which paved the way in many places for the rise of populist and neo-
authoritarian political regimes and a corresponding shift from a commitment to
common values, foremost among them human rights and the international rule
of law, toward a new emphasis on the defense of national sovereignty. The push-
back against the expansion of international human rights law has taken various
forms, from the total or partial withdrawal from regional human rights systems
to institutional reforms designed to emphasize the limits of the jurisdiction and
powers of regional bodies, as well as noncompliance with particularly unpopular
or intrusive decisions issued by those bodies.
53 Contesse (n. 50), 138.

55 Ibid., 153.
56 Ximena Soley and Silvia Steininger, “Parting Ways or Lashing Back? Withdrawals, Backlash and
the Inter-American Court of Human Rights” [2018] MPIL Research Paper No. 2018-01, https://pap
ers.ssrn.com/sol3/papers.cfm?abstract_id=3103666 (accessed January 8, 2022).
88 Rainer Grote
3.1. Withdrawal from the Regional Human Rights System
Full exit from the regional human rights system, the most extreme form of re-
sistance, has so far only been implemented by two members States of the Inter-
American System, namely, Trinidad and Tobago, which withdrew its ratification
of the ACHR in 1998, and Venezuela, which did the same fourteen years later.
However, only in the latter case did dissatisfaction with the practice of the organs
of the American Convention play a decisive role, whereas the decision of the
government of Trinidad and Tobago was triggered by the case law of the British
Judicial Committee of the Privy Council—at the time still Trinidad and Tobago’s
highest appellate court—on the use of the death penalty.57
In contrast, Venezuela’s withdrawal from the Inter-American System was a di-
rect response to the Commission and Court’s alleged lack of impartiality and
respect for Venezuelan national sovereignty. Withdrawal followed a prolonged
period of confrontation between the Convention bodies and the Venezuelan
authorities, particularly its Supreme Court, over the implementation of IACtHR
judgments in Venezuela. The confrontation went back as far as 2000 when the
newly established Constitutional Chamber of the Supreme Court of Venezuela
opposed the precautionary measures of the Commission as an “unacceptable”
interference in the competence and independence of Venezuelan judges on the
grounds that the Commission had not made sure that all domestic remedies
57 In a case concerning Jamaica, the Privy Council held that the prolonged time that inmates were
on death row was a form of inhuman and degrading treatment that violated both constitutional
norms and international treaties, and that inmates on death row ought not to wait for more than
five years between their sentences and their executions, Pratt v. Attorney General for Jamaica [1994]
2 AC 1, 85 (PC). However, the Council’s expectation that the review of death penalty cases carried
out by international bodies, namely, the UN Human Rights Committee and the Inter-American
Commission, would not require more than eighteen months and thus not add significantly to the
prolongation of the waiting time proved far too optimistic, all the more so as complainants were
allowed to petition both the Human Rights Committee and the Commission. As a result, review
times added up, leading to a situation in which convicted prisoners, by lodging petitions before in-
ternational bodies, could effectively delay their executions for more than the five years allowed by the
Privy Council, thus often forcing Caribbean countries to commute their death sentences to lifelong
imprisonment, coming close to a de facto abolition of the death penalty. It was in order to end this
unhappy situation, which in the government’s view allowed convicted murderers to escape the death
penalty due to the delays and the inertia of international human rights bodies, that Trinidad and
Tobago decided to withdraw its ratification from the American Convention and the International
Covenant on Civil and Political Rights. This should not obscure the fact that the initial trigger of
the withdrawal decision had not been a practice by the Court or the Commission, which was seen
as overly intrusive, but jurisprudence by the Privy Council, which took its central concept—i.e.,
the definition of inhumane and degrading treatment—from the practice of ECHR bodies and not
from that of ACHR institutions—in particular from the ECtHR’s Soering decision, which had ruled
that the delay in executing prisoners held on death row for six to eight years amounted to inhuman
and degrading treatment within the meaning of Article 3 of the ECHR; see Jane Hearn, “New Legal
Breakthrough for Death Row Prisoners: Pratt v Attorney General for Jamaica” [1994] 1 Australian
Journal of Human Rights 392, 396.
had been exhausted before it ordered the measures.58 Three years later, the
Constitutional Chamber went further still by holding, with special reference to
the IACtHR, that the judgments handed down by international courts can only
be implemented in the Venezuelan legal system if they conform to the provisions
of the national Constitution and the requirement of prior exhaustion of do-
mestic remedies has been respected. For judgments handed down by interna-
tional courts to be implemented, they must first be given the green light by the
Constitutional Chamber, which will only be granted if they do not violate con-
stitutional principles and rules.59 While the primacy of the national constitution
over decisions by international courts had thus been established in principle, it
was given its first application five years later in the Apitz Barbera et al v. Venezuela
case. In this instance, the IACtHR had required the Venezuelan State to reinstate
three judges who had been dismissed arbitrarily from their posts. The Supreme
Court ruled that implementation of the IACtHR judgment would lead to institu-
tional chaos and affect the autonomy of the judiciary and the judicial disciplinary
system, as well as violate the principle of res judicata, and therefore declared it
unenforceable. In addition, the Supreme Court stated that with the Apitz Barbera
judgment the IACtHR had attempted to engaged in an evident “usurpation of
powers” and requested the executive branch to proceed to denounce the ACHR
in order to remove it from the Venezuelan legal system.60 Venezuela finally
notified the OAS’s Secretary General of its decision to withdraw from the ACHR
on September 10, 2012.61
To support the argument that IACtHR rulings were unenforceable, the
Supreme Court referred to several decisions handed down by the military courts
in Peru during the Fujimori presidency, which had sought to exempt the State
of Peru from the decisions of the IACtHR with respect to serious violations of
human rights.62 Indeed, Peruvian military courts had been the first to openly
challenge the execution of IACtHR judgments for their lack of impartiality and
their violation of the national constitution in a series of decisions in the late
1990s.63 These decisions had been part of a wider effort of the Fujimori regime
58 Faitha Nahmens and Ben Ami Fishman “Excess” Magazine, TSJ/ SC, Judgment No. 386, 17-
5-2000, http://historico.tsj.gob.ve/decisiones/scon/mayo/386-170500-00-0216.HTM (accessed
January 8, 2022).
59 Rafael Chavero Gazdik, TSJ/SC, Judgment No. 1942, July 15, 2003, <http://historico. tsj.gob.ve/
decisiones/scon/julio/1942-150703-01-0415.HTM (accessed January 8, 2022).

60 Leopoldo López Mendoza, TSJ/SC, Judgment No. 1939, December 18, 2008, <http://historico.tsj.
gob.ve/decisiones/scon/diciembre/1939-181208-2008-08-1572.HTML (accessed January 8, 2022).

61 See Carlos Ayala Corao, “Inconstitucionalidad de la Denuncia de la Convención Americana
sobre Derechos Humanos por Venezuela” [2012] 20 Revista Europea de Derechos Fundamentales
45, 48.
62 Leopoldo López Mendoza, TSJ/SC, Judgment No. 1939, December 18, 2008, <http://historico.tsj.
gob.ve/decisiones/scon/diciembre/1939-181208-2008-08-1572.HTML (accessed January 8, 2022).

63 Contesse (n. 50), 197.
90 Rainer Grote
to block the Inter-American human rights regime’s intromission in Peru’s na-

tional security affairs, particularly the ruthless methods used by the government
in its fight against the brutal terrorism of Sendero Luminoso and other groups. In
July 1999, this effort culminated in Peru withdrawing its declaration consenting
to the optional clause in the American Convention recognizing the contentious
jurisdiction of the IACtHR.64 While this amounted only to a partial withdrawal
from the Inter-American System, as it left the country’s membership of the
ACHR intact, it nevertheless constituted an attempt to break free from those of
its elements that have the most direct and restricting effect on a member State’s
national sovereignty. While the IACHR declared the withdrawal inadmissible,
arguing that a State may disengage from its obligations under the ACHR only
by fully denouncing it,65 the Peruvian government did not correct or amend
its decision. It was only in 2001, after Fujimori had stepped down from office
and the country had started to rebuild its democratic institutions under a newly
elected leadership that Peru reinstated its recognition of the IACtHR’s conten-
tious jurisdiction.
However, the Peruvian precedent would not be forgotten. It played a major role
in the struggle of the Venezuelan courts to escape from supervision of the Inter-
American System: by looking at the Peruvian experience, Venezuela obviously
concluded that they would only be able to successfully escape if they were pre-
pared to fully denounce the ACHR. But it may also have taught the Constitutional
Court of the Dominican Republic a valuable lesson when it considered how to
neutralize the most troubling effects of ACHR membership without mounting
a direct challenge to the system as such. It went back to the argument of uncon-
stitutionality already used by the Peruvian and Venezuelan courts, but used it in
a more sophisticated way. In a judgment in 2014, the Dominican Constitutional
Court found that the Instrument of Recognition of the Inter-American Court’s
jurisdiction was unconstitutional, as it had only been signed by the President
of the Republic and lacked the constitutionally required approval of Congress.66
This meant that the decision handed down by the IACtHR a few weeks earlier
on the highly sensitive issue of the right to citizenship of individuals of Haitian
descent born in the Dominican Republic, which had requested that the country
amend its constitution, lacked a proper constitutional basis to produce any do-
mestic legal effects.67
64 Ivcher Bronstein v. Peru, Jurisdiction [1999], IACtHR, Ser. C No. 54, at 28.
65 Ibid., No. 54, at 40.
66 Tribunal Constitucional de la República Dominicana, November 4, 2014, Sentencia TC/0256/
14, https://www.tribunalconstitucional.gob.do/content/sentencia-tc025614 (accessed January

8, 2022).
67 Expelled Dominicans and Haitians v. Dominican Republic [2014], IACtHR, Ser. C No. 282.
It is in the African human rights system, however, where the Peruvian prec-
edent has been used most widely and to crippling effect in recent years. In just
six months, three out of only ten member States that had initially made a dec-
laration allowing individuals and NGOs to directly submit applications against
them at the ACtHPR withdrew the declaration: Tanzania (the host State of the
African Court), Benin, and Côte d’Ivoire. This brought the number of member
States that still recognize the right to individual petition to just six: Burkina Faso,
Gambia, Ghana, Malawi, Mali, and Tunisia (Rwanda already submitted its with-
drawal note in 2016). The most recent case of Côte d’Ivoire illustrates clearly
that withdrawal is a course of action deliberately chosen in response to a ruling
considered too intrusive, and as the most convenient and efficient means to cut
short any further meddling of the Court in domestic matters. The decision to
withdraw its declaration was a direct response to an Order for Interim Measures
issued against Côte d’Ivoire by the ACtHPR on April 22, 2020. In it the Court had
ordered a stay of the arrest warrants of twenty Ivorians, most of them politicians,
who had been indicted on charges of embezzling public funds and plotting
against the authority of the State in the run-up to the presidential elections.
Almost immediately following the Court’s Order, Côte d’Ivoire withdrew its dec-
laration, citing the African Court’s “grave and intolerable actions,” which violate
its sovereignty and “undermine the foundations of the rule of law by weakening
its justice system.”68
In contrast, a partial withdrawal from the regional system is no longer pos-
sible in Europe, where member States can end the compulsory jurisdiction of the
ECtHR and the right to individual petition only if they leave the Convention (or
the CoE) altogether.69 This has meant that in the ECHR System the debate has
only in rare cases (the United Kingdom, for example) been about the withdrawal
of dissatisfied members from the ECHR; the focus has instead been on the re-
form of the Convention and the limits of member States’ duty to comply with
decisions of the ECtHR.
3.2. Institutional Reform
Institutional reforms to regional human rights systems have been a major part
of the pushback against international human rights supervision in Europe,
America, and Africa. Reforms do not necessarily weaken a human rights regime;
on the contrary, they can have the express goal of improving and strengthening
68 Davi and Amani (n. 48).

69 According to Article 58(3), a contracting party that ceases to be a member of the CoE shall also
cease to be a party to the Convention under the same conditions.
92 Rainer Grote
it. Perhaps the most striking example of a reform process of the latter kind is the
reform of the ECHR brought about by the adoption of the Eleventh Protocol.
This marked the high tide of human rights law in Europe, and international
human rights protection more generally, by making both the right of individual
petition and the jurisdiction of the competent regional court (the ECtHR) to
hear and decide those petitions a mandatory condition of membership for the
first time in an international human rights regime. However, depending on the
motivation that underlies the reform process, the arguments and rhetoric used
by State representatives in the negotiations, and the ultimate results achieved by
the reform process, reform debates can also be an effective tool to weaken rather
than strengthen a regional human rights system.70 The reforms adopted in the
regional systems during the last decade fall largely into the latter category.
In Europe, reforms to the ECHR System in the last decade have been the result
of two strongly divergent imperatives: (1) the necessity to reduce the caseload
of the ECtHR in order to avoid its collapse under the sheer weight of the tens
of thousands of petitions reaching the Court every year, and (2) the need to re-
spond to the increasingly vigorous pushback by some member States, foremost
among them the United Kingdom and Russia, against what they perceive as the
excessive interference of the ECtHR’s jurisprudence with domestic legal and po-
litical processes. The Brighton Declaration of 2012 was the first major response
to thesecond demand. The Declaration seeks to redefine the balance between the
Court and member States by giving more power to national institutions.71 The
Declaration led directly to the adoption of Protocol No. 15, which introduces an
explicit reference to the principle of subsidiarity and the doctrine of the margin
of appreciation into the Convention law. It also reduces the time limit within
which an individual application may be made to the Court following the date of a
final domestic decision from six to four months. While it has not yet entered into
force, its influence can already be seen in the greater willingness of the ECtHR to
give more deference to national decisions in its recent case law. Some observers
have interpreted this development as the Court turning away from the rights-
oriented jurisprudence that had become the ECtHR’s hallmark since the late
1970s, and supplementing, or replacing, it with new forms of strategic judging
reminiscent of the legal diplomacy of its early period.72
In the Inter-American system, the powers and procedures of the Commission
became the target of a reform process conducted between 2011 and 2013 by the
OAS Permanent Council. The consultation process in which the Commission,
70 Contesse (n. 50), 210.

71 Mikael Rask Madsen, “The Challenging Authority of the European Court of Human
Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash” [2016] 79 Law
and Contemporary Problems 141, 175.
72 Ibid., 171.
States, and civil society organizations addressed the need to reform the
Commission was a direct response to States’ discomfort with the Commission’s
practices and procedures, and particularly its alleged expansive use of pre-
cautionary measures, the absence of precise guidelines for the admissibility of
petitions, and the lack of transparent criteria for the inclusion in Chapter IV of
the Commission’s Annual Report of States in the “black list” of countries that
violate human rights in a systematic manner. The process resulted in a much
stricter framework for the Commission’s activities, forcing it to adopt new rules
and regulations with specific and detailed guidelines, amounting to a covert
pushback by member States in diplomatic disguise.73
A similar development has taken place in Africa. At the summit of the African
Union (AU) in July 2018 the Executive Council of the AU adopted Decision
EX.CL/Dec.1015(XXIII), which severely undermines the African Commission.74
According to the Decision, the independence of the Commission is merely func-
tional in nature and thus not independent from the (political) organs of the AU
that created it.75 Among other things, the Decision limits the access of NGOs
to the Commission by extending the already existing and more restrictive AU
criteria on the accreditation of NGOs to the Commission. This means that the
Commission has to close its doors to many of its partners who have supported its
work for decades, thereby fatally harming the transnational civil society network
that is central to promoting and defending a pan-African human rights culture.
Another disingenuous decision is the directive to review the interpretative man-
date of the African Commission in light of a similar mandate exercised by the
ACtHPR. While African citizens can directly file complaints for violation of their
rights to the Commission under the African Charter, which has been ratified
by all AU member States with the exception of Morocco, access to the African
Court is limited to citizens of those member States that have made the decla-
ration under Article 34(6) to allow individuals and NGOs to directly file cases
before the Court, a number which has never been very high (see section 3.1) and
has been dwindling rapidly in the recent past.76 This raises the specter that before
73 Contesse (n. 50), 209–210.

74 Japhet Biegon, “The Rise and Rise of Political Backlash: African Union Executive Council’s
Decision to Review the Mandate and Working Methods of the African Commission” [2018] EJIL
Talk!, www.ejiltalk.org/the-rise-and-rise-of-political-backlash-african-union-executive-councils-
decision-to-review-the-mandate-and-working-methods-of-the-african-commission/ (accessed
January 8, 2022).
75 Executive Council of the African Union, 33rd Ordinary Session, June 28–29, 2018, Decision
on the Report on the Joint Retreat of the Permanent Representatives’ Committee (PRC) and the
African Commission on Human and Peoples’ Rights (ACHPR), DOC.EX.CL/1089(XXXIII) I, para.
5, https://au.int/sites/default/files/decisions/34655-ex_cl_dec_1008_-1030_xxxiii_e.pdf (accessed
January 8, 2022).
76 Biegon (n. 74), 3.
94 Rainer Grote
long the great majority of Africans will be left without any direct access to the
region’s principal human rights bodies.
3.3. Noncompliance with Individual Decisions
Another important form of resistance to the perceived intrusiveness of regional

human rights bodies is noncompliance, partial compliance, or selective compliance
with the decisions and recommendations issued by these bodies. While compliance
levels have historically been low in the Inter-American system,77 compliance rates
are also declining in Europe where most ECHR member States are now subject to
compliance monitoring by the Committee of Ministers.78 The situation in Africa
is even worse. Baring two notable exceptions—namely, the Zongo79 and Konaté80
cases, in which there has been full compliance with the sixteen remedial orders is-
sued by theACtHPR—the situation looks almost uniformly bleak.81 It underscores
the Court’s own view that noncompliance is one of its major challenges.82
The problem of low compliance rates, which points not only to deficiencies in
the regional systems monitoring but to structural problems as well, including the
heterogeneity of member States in terms of rule of law standards and the growing
complexity of remedial orders, has to be distinguished from cases of principled
noncompliance, that is, cases in which the national authorities refuse to imple-
ment decisions in accordance with the criteria they have previously defined in
the abstract. In both the European and Inter-American systems, such “princi-
pled” non-compliance is usually based on Constitutional primacy, or at least
certain parts of the Constitution, notably its unamendable provisions or prin-
ciples. This has been the position adopted by the Russian Constitutional Court
in 2014 and later codified in national legislation.83 In developing its arguments,
77 Alexandra Huneeus, “Courts Resisting Courts: Lessons from the Inter- American Court’s
Struggle to Enforce Human Rights” [2011] 44 Cornell International Law Journal 493, 504: Huneeus
notes that at the time of writing there had been full compliance only in one out of every ten cases
in which the Court had handed down a final judgment; Contesse (n.50), 232: “structural lack of
enforcement.”
78 Madsen (n. 71), 172.
79 Zongo v. Burkina Faso [2014], ACtHPR, Application No. 3/2011.
80 Konaté v. Burkina Faso [2014], ACtHPR, Application No. 004/2013.
81 See 2018 Mid- Term Activity Report of the African Court on Human and Peoples’ Rights,
EX.CL/1088(XXXIII), June 2018, https://archives.au.int/handle/123456789/8868?locale-attribute=
pt (accessed January 8, 2022).
82 See 2017 Activity Report of the African Court on Human and Peoples’ Rights, EX.CL/1057,
January 2018, para. 52, https://archives.au.int/handle/123456789/8940?locale-attribute=fr (accessed

January 8, 2022).
83 Russian Constitutional Court, Judgment of July 14, 2015 No. 21- P; for the analysis of the
ruling, see, e.g., Lauri Mälksoo, “Russia’s Constitutional Court Defies the European Court of Human
Rights: Constitutional Court of the Russian Federation Judgment of 14 July 2015, No. 21-P/2015”
[2016] 12 European Constitutional Law Review 377.
the Russian Constitutional Court could point to a decision by Germany’s Federal

Constitutional Court that stated that while German courts are obliged to take
into account the relevant judgments of the ECtHR, they can nevertheless arrive
at a different conclusion, as the factual or legal issues before the national court
may differ from those under scrutiny before the ECtHR .84
A similarly restrictive position has been gaining ground in countries that
only a few years ago had advocated for a particularly broad interpretation of
the domestic effects of international human rights law, including the rulings
of the competent regional human rights court. A particularly striking example
is Argentina. In 2005, the Argentine Supreme Court ruled that the constitu-
tional rank that Article 75 of the national Constitution accords to international
human rights treaties not only applies to the provisions of the ACHR but also to
the decisions of the IACtHR, which determine the meaning and scope of these
provisions regardless of whether Argentina had been a party to the relevant case
or not.85 However, a few years later when the Inter-American Court held that the
freedom of expression under the ACHR of two Argentine journalists had been
violated as a result of a civil judgment that found the pair liable to defamation for
publishing stories about an illegitimate child of a former president and ordered
the Supreme Court to revoke the judgment in its entirety,86 the latter demurred,
arguing that the IACtHR lacked the authority to order the squashing of a do-
mestic judgment.87
Even in the absence of a written constitution as the basis for confronting
the authority of a regional human rights court, compliance—whether fully
or in part—is no longer a foregone conclusion, as the Hirst saga in the United
Kingdom has shown. In 2005, the Grand Chamber judgment in Hirst v. UK (No.
2)88 held by 12–5 that the “blunt” and “indiscriminate” nature of the ban on the
right of convicted prisoners to vote under Section 3 of the 1983 Representation
of the People Act breached Article 3 of ECHR Protocol No.1.89 Five years later,
when no measures had been taken to implement Hirst, the Court issued the
Greens and MT pilot judgment,90 which stipulated that the UK government
within six months of the judgment becoming final had to “bring forward . . . leg-
islative proposals” to render the law Convention-compliant.91 It was following
84 Görgülü [2004], BVerfG, 2 BvR 1481/04, para. 50.

85 Caso Simon [2005] Suprema Corte de la Nación Argentina.
86 Fontevecchia and D’Amico v. Argentina [2011], IACHR, Ser. C No. 238, 105.
87 Corte Suprema de Justicia de la Nacion [CSJN] 5/12/2017, “Ministerio de Relaciones Exteriores
y Culto s/informe sentencia dictada en el caso ‘Fontevecchia and D’Amico v. Argentina’ por la Corte
Interamericana de Derechos Humanos,” CSJ 368/1998 (34-M)/CS1 (Arg.).
88 Hirst v. United Kingdom (No. 2) [2006], ECtHR, 42 EHRR, para. 41 (GC).
89 Ibid., para. 82.
90 In pilot judgments, the Court identifies structural or systemic problems underlying repetitive
cases and imposes an obligation on States to address those problems.

91 Greens and MT v. United Kingdom [2011], ECtHR, 53 EHRR 21, para. 6(a).
96 Rainer Grote
Greens that the political storm in the United Kingdom reached its height, cen-
tering on the alleged judicial activism of the Strasbourg Court.92 The governing
Conservative Party issued a document proposing fundamental reforms of human
rights law, including making judgments of the ECtHR merely advisory with re-
spect to the United Kingdom. The document stated that, should it be unable to
secure the CoE’s agreement for reform, the United Kingdom would be left with
no alternative but to withdraw from the Convention.93 The Conservative Party
manifesto for the May 2015 general election pledged to scrap the 1998 Human
Rights Act, which had incorporated the ECHR into British law, and introduce a
British Bill of Rights in order to break the formal link between British courts and
the ECtHR, thus making Britain’s “Supreme Court the ultimate arbiter of human
rights matters in the UK.”94 Ironically, the outcome of the Brexit referendum in
June 2016, in which a narrow majority voted to leave the European Union, had
the effect of putting on hold Conservative plans to repeal the Human Rights Act
or withdraw from the Convention during the long and complicated negotiations
about the modalities of Brexit.
4. Responses to the Backlash
The responses by regional human rights organizations and institutions to the

various forms of pushback from countries irritated by a human rights jurispru-
dence they consider as intrusive and disrespectful of national sovereignty has
been mainly defensive. In Europe, the United Kingdom and similarly minded
countries were able to include their grievances in the agenda of the ongoing
reform process of the ECHR, which had originally been conceived as a way to
prevent the collapse of the system under the excessive caseload of the ECtHR.
In the process the opponents of an overexpansive Court were able to shift the
parameters of the discussion away from technical issues to the crucial question
of the adequate balance between the Court and national institutions. They did
so by re-emphasizing the principles of subsidiarity and margin of appreciation
and incorporating them into the text of the Convention itself, thus potentially
changing the basic modus operandi of the Court in a more conservative direc-
tion. Protocol No. 15 may already have induced a certain shift in the ECtHR’s
92 Jonathan Sumption, “The Limits of Law,” in N.W. Barber, Richard Ekins, and Paul Yowell (eds.),
Lord Sumption and the Limits of Law (Hart Publishing 2016), 15.
93 The Conservative Party, “Protecting Human Rights in the UK: The Conservatives’ Proposals for
Changing Britain’s Human Rights Laws,” October 2014, at 8.

94 The Conservative Part, “Conservative Party Manifesto 2015,” 60.
jurisprudence which more recently leaves greater space to diligent national

authorities in the application of the proportionality assessment.95
Similarly, the reforms carried out in the Inter-American System over the last
decade have been designed not to consolidate but reduce the powers of regional
human rights bodies. The reform of Commission procedures and practices was
driven by the dissatisfaction of important member States with the expansive
way in which the Commission had interpreted its mandate, and the outcome of
the evaluations and debates held between 2011 and 2013 reflected this motiva-
tion.96 The States imposed on the Commission the adoption of clear guidelines
and criteria for the Commission’s annual reports and for the processing of pre-
cautionary measures and individual complaints. The new Rules of Procedure
contain strict and detailed guidelines for when the Commission may grant
precautionary measures, along with the duty to publish the opinions of all the
members of the Commission, especially if some of them disagree with the meas-
ures issued.97
By contrast, the Court has not yet been the object of broader reform measures
that will have to be incorporated into the ACHR in order to produce legal effects.
But resistance has come in other forms, including through judicial decisions by
domestic courts. As the Argentinian example illustrates, domestic courts have
grown more restive, especially regarding attempts by the IACtHR to directly in-
terfere with the operation of domestic legal and judicial systems through its re-
medial orders. As the IACtHR has never developed a doctrine of national margin
of appreciation, it lacks the doctrinal tools that would allow it to accommodate
member States’ concerns in the application of the Convention. This has increased
the risk of direct confrontation with member States during the implementation
phase, with the latter ignoring or openly refusing to implement decisions they
deem too intrusive. Unlike the ECtHR which can shift the burden of confronting
member States in the implementation phase to the Committee of Ministers,
the IACtHR has no easy way out as it has early on claimed full responsibility for
supervising the implementation process itself. However, the Court is ill equipped
for such bargaining processes with national governments since hard power, in-
cluding the power to determine the resources put at the disposal of the Court,
95 Oddny Mjöll Arnardottir, “The Brighton Aftermath and the Changing Role of the European
Court of Human Rights” [2018] 9 Journal of International Dispute Settlement 223, 237: Arnardottir
characterizes this development as a “procedural turn” in the ECtHR’s application of the proportion-
ality requirement.
96 Namely, by the confrontation between the Commission and the Brazilian government over the
treatment of the Indigenous communities of the Xingu River Basin, which ended up changing the
relationship between Brazil and the Inter-American System from one of benign neglect to outright
animosity; see Contesse (n. 50), 216.
97 See OAS General Assembly, AG/Res. 1 (XLIV-E/13), Results of the Process of Reflection on the
Workings of the Inter-American Commission of Human Rights with a View to Strengthening the
Inter-American Human Rights System (July 23, 2013).
98 Rainer Grote
rests with the member States. The resolution to the standoff with Argentina
illustrates how limited the Court’s chances are of convincing a member State de-
termined to assert its national sovereignty.98
5. The Road Ahead
The way ahead looks different for the three regional systems, reflecting each
system’s respective strengths and weaknesses. The ECHR system looks the best
equipped to weather the storm of pushback and backlash, as its institutionali-
zation is the most advanced of the three systems. In addition, it disposes of doc-
trinal tools that enable readjustments in the relationship between the Strasbourg
Court and member States’ institutions. The most important of such tools is the
margin of appreciation, which allows for considerable flexibility in the appli-
cation of the Convention, depending on the rule of law standards and demo-
cratic practices of the member State concerned. Leaving the supervision of the
implementation of Court judgments to a peer-pressure mechanism also helps
to stabilize the system, since it reduces the prospect of a direct confrontation be-
tween the Court and uncooperative member States, which could undermine the
Court’s authority. These institutional and doctrinal resources should allow the
Court and the other Convention organs to steer the Strasbourg system through
the present troubled period, all the more since they make the cost–benefit anal-
ysis for member States toying with the idea of a total withdrawal from the ECHR
much more difficult.
Most of these considerations do not apply to the Inter-American system. For
perfectly understandable reasons the IACtHR missed its opportunity to forge a
partnership with national human rights institutions—and particularly national
judiciaries—through the introduction of some form of margin of appreciation
doctrine adapted to the region’s peculiarities. The window of opportunity for such
a move was open during the period that democratic governments were in power
(1990s and 2000s) and credibly committed to democracy, human rights, and
the rule of law.99 With populism, neo-authoritarianism, and neo-sovereigntism
98 The compliance monitoring hearing in April 2017 between the Court and the national govern-
ment, in which lawyers for the victims and the Inter-American Commission took part as well, ended
with a Resolution by the IACtHR acknowledging that revoking the judicial decision of 2001, which
was found to have violated the Convention, was not the only possible remedy to comply, and that
alternative mechanisms included the removal of the decision from all electronic websites or an anno-
tation on the margins of the decision stating that the IACtHR had declared it incompatible with the
ACHR; see Contesse (n.50), 223.
99 See Leiv Marsteintredet, “The Inter-American Court of Human Rights and the Mobilisation
of Parliaments,” in Matthew Saul, Andreas Follesdal, and Geir Ulfstein (eds.), The International
Human Rights Judiciary and National Parliaments (Cambridge University Press 2017), 248,
258: Marsteintredet emphasizes that there is basically no discursive space for parliamentarians to
rearing their heads again in the region, this opportunity has probably vanished,
and the IACtHR risks sliding gradually into irrelevance. This seeming impasse in
the Inter-American System has led to calls for further reform. Not surprisingly,
these calls tend to revolve around the absence of a suitable doctrine on the de-
gree of deference to be granted to national institutions in the application of the
ACHR, exhorting the Court to adopt a more deferential approach when dealing
with a national judiciary that enjoys, according to the documentation provided
by the Commission and NGOs, a substantial measure of independence.100 In
addition, the IACtHR’s self- asserted compliance– monitoring jurisdiction is
increasingly being questioned, as it forces the Court to spend scarce resources
on interactions with member States that often prove unproductive. There are
proposals to replace judicial compliance monitoring with political supervision
mechanisms. However, these mechanisms should not be left solely in the hands
of OAS political bodies but ought to involve those Latin American civil society
organizations that were crucial to the development of regional human rights law
in the pastthrough permanent consultation processes during the implementa-
tion phase of the IACtHR’s rulings.101
The short-term prospects for a recovery of regional human rights law seem
bleakest in the case of Africa. Having developed more recently than the European
and American systems, its central institutions were just starting to deploy their
potential when the dynamics of international human rights protection started to
falter.102 As they were still in a fragile condition, the Commission—and particu-
larly the Courthave been dealt devastating blows by the accelerated backlash that
emerged in the wake of the repression of the Arab Spring. It is unlikely that they
will be in a position to reinitiate their march toward a dynamic and progressive
human rights regime for the whole of Africa any time soon. It is more likely that
in Africa the subregional level will play the leading role in the development of
international human rights law in the coming years. For instance, the Court of
Justice of the Economic Community of West African States (ECOWAS and the
East African Court of Justice are creatively carving out a space for rule of law
litigation and may grow to include an express human rights jurisdiction in the
future.103
explore and little room to discuss the interpretation of the ACHR; the same argument would seem to
apply to the relationship between the IACtHR and domestic courts.
100 Contesse (n. 50), 230.

101 Ibid., 235.
102 Daly and Wiebusch (n. 13), 298.
I.5
The Impact of the Inter-American Human
Rights System beyond Latin America
By Par Engstrom
1. Introduction
Global human rights governance is at a critical juncture. International pol-

itics has become distinctly hostile to human rights. Major powers in the cur-
rent multipolar 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 within some
scholarly ivory towers the international human rights project is being dismissed
as elitist, rigid, and inflexibly imposing a universalizing morality at the expense
of local customs and standards of behavior.1 Confronted with dramatic global
inequalities and accelerating climate emergencies, international human rights
are criticized for offering little, or no, practical assistance in efforts to bring about
a more just and equal world, and for being underpinned by minimalist ambitions
regarding the possibilities of an otherwise sustainable and just world.2
It is precisely in relation to these overlapping political, socioeconomic, and
intellectual challenges that I hope to offer in this chapter a partial corrective
to the disparate and gloomy assessments of the present state and possible fu-
ture 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
1 Stephen Hopgood, The Endtimes of Human Rights (Cornell University Press 2013).
2 Samuel Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press 2018).
Par Engstrom, The Impact of the Inter-American Human Rights System beyond Latin America In: The Impact of the
Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan,
Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Par Engstrom 2024.
DOI: 10.1093/oso/9780197744161.003.0006
Impact of the Inter-American Human Rights System 101
of international human rights resulting from Western imposition, the origins

and early developments of the IAHRS demonstrate the important 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 con-
struction and evolving interpretations of international human rights standards.
And third, the IAHRS has made important contributions to the theory and prac-
tice of human rights governance as an exemplar of how international law and
institutions can advance the realization of rights even in the absence of robust
enforcement mechanisms and in often inhospitable political conditions.
These distinct contributions of the IAHRS are often overlooked in discussions
on the evolution and impact of international human rights. This is partly due to
the relative marginalization of regional systems in much human rights scholar-
ship, and to the historical sidelining of the Global South from the history of the
modern international human rights regime. The combined result is often a dis-
tinct sense of distortion in the analysis of international human rights, whether
past, present, or future. It is important, therefore, not just for the IAHRS but for
international human rights more broadly to better understand how the IAHRS
fits within and has contributed to the development of global human rights
governance.
2. The IAHRS and the Origins of Global Human

Rights Governance
Since its origins, the IAHRS has been a central part of the modern international
human rights regime. The American Declaration of the Rights and Duties of
Man (ADHR) from April 1948 predates the Universal Declaration of Human
Rights (UDHR), which was adopted in December of that year. More significantly,
however, these founding documents of the modern international human rights
regime were shaped by similar world historical influences prevailing at the mo-
ment in which they were created. In particular, as has been widely documented,
there was significant Latin American engagement during the origins of the
modern international human rights regime. As a result, there was notable cross-
fertilization and interaction between the regional and global regimes, which left
a noticeable imprint on both the institutional design and substantive contents of
global human rights governance.
Support for democracy and human rights has historically figured prominently
on the regional agenda in the Americas. Regional cooperation initiatives have
often derived their legitimating rationales from the idea that the universal rec-
ognition of fundamental rights is a necessary condition for international life and
the establishment of democratic societies. Such regional developments tended
102 Par Engstrom
to reflect national developments through which newly independent republics

adopted constitutions incorporating an ambitious range of rights principles
and protections.3 This is certainly not to deny the politically contested character
of regional understandings of human rights. Regional rights traditions in the
Americas encompass multiple strands of thought and political practice ranging
from liberal definitions of individual rights as inherent and inalienable to those
associated with a socialized rights tradition, most notably expressed in the 1917
Mexican Constitution.4 Moreover, regional rights traditions have developed in a
distinctly transnational context since the outset. For example, Kathryn Sikkink
has recently highlighted the role of Alejandro Álvarez in the early development
of the modern international human rights regime. As early as 1917, Álvarez—
a Chilean professor of international law, founding member of the American
Institute of International Law, and judge at the International Court of Justice
between 1946 and 1955—proposed the idea of the international rights of the
individual to the American Institute of International Law; an idea that was sub-
sequently adopted by his peers in the burgeoning transnational legal epistemic
communities at the time. In short, the 1948 adoption of the founding Charter of
the Organization of American States (OAS) and the accompanying ADHR both
need to be seen in light of over a century of inter-American and transnational
relations that shaped the norms and principles enshrined in these foundational
documents.5
It is also important to note Latin American efforts in pushing for an explicit
human rights mandate for the United Nations.6 When the great powers convened
at Dumbarton Oaks (August–October 1944), they were manifestly reluctant to
include human rights in the draft UN Charter. In contrast, at the Inter-American
Conference on Problems of War and Peace at Chapultepec Castle in Mexico City
in February 1945, Latin American countries endorsed a report prepared by the
Inter-American Juridical Committee that called for a full range of rights to be in-
cluded in the UN Charter. David Forsythe, for example, highlights:
[A]‌small number of Latin states in the 1940s tried to exert moral leadership in
support of precise legal obligations and a capacity for regional action on human
rights. This handful of Latin states—Panama, Uruguay, Brazil, Mexico, the
3 Paolo G. Carozza, “From Conquest to Constitutions: Retrieving a Latin American Tradition of
the Idea of Human Rights” [2003] 25 Human Rights Quarterly 281.

4 Greg Grandin, “The Liberal Traditions in the Americas: Rights, Sovereignty, and the Origins of
Liberal Multilateralism” [2012] 117 American Historical Review 68.

5 Louise Fawcett, “The Origins and Development of Regional Ideas in the Americas,” in Louise
Fawcett and Mónica Serrano (eds.), Regionalism and Governance in the Americas: Continental Drift
(Palgrave Macmillan 2005).
6 Mary Ann Glendon, “The Forgotten Crucible: The Latin American Influence on the Universal
Human Rights Idea” [2003] 16 Harvard Human Rights Journal 13.

Dominican Republic, Cuba, and Venezuela—also pushed for binding human

rights commitments at the San Francisco conference which led to the establish-
ment of the United Nations.7
Moreover, at the San Francisco conference (April–June 1945), which led to the
adoption of the UN Charter, the twenty Latin American countries participating
constituted not only the largest regional grouping but also the most important
voting bloc. As each part of the Charter required a two-thirds majority to pass,
Latin American countries were instrumental in ensuring that the UN Charter
eventually contained seven references to human rights, including listing the pro-
motion of human rights as one of the basic purposes of the United Nations.
Latin American lawyers and diplomats also contributed to the expansion of
the modern human rights canon. The ADHR’s comprehensive directory of rights
proved influential in shaping the incorporation of social and economic rights
into the UDHR. This combined attention to civil and political as well as eco-
nomic and social rights reflected the often eclectic mix of socialist, liberal, and
Catholic traditions that had characterized Latin American intellectual thought
and constitutional practice since the independence era. Moreover, while the
ADHR’s attention to human duties was eventually not reflected in the UDHR, its
insistence on the “right to justice” (drawing from Latin American amparo laws)
was translated into the UDHR’s Article 8. The role of the pan-American feminist
movement was also significant,8 reflecting burgeoning transnational influences.
Several prominent Latin American women delegates, such as Brazil’s Bertha
Lutz, the Dominican Republic’s Minerva Bernardino, and Chile’s Ana Figueroa,
played instrumental roles in advocating for the inclusion of equal rights for
women and men in the UDHR, as well as the use of explicit language calling for
the defense of the rights of women.
In addition to their insistence on a full range of rights, including socioeco-
nomic rights, Latin American government representatives also drew on a rich
tradition of regional political debates concerning the scope of legitimate inter-
national intervention in the domestic affairs of States. Arguably, this was most
notable at the 1945 Inter-American Conference on Problems of War and Peace,
when the Inter-American Juridical Committee was requested to draft a human
rights declaration. The Conference discussed the “Larreta Proposal”—named
after the Uruguayan Minister of Foreign Affairs, Eduardo Rodríguez Larreta—
which proposed to suspend or restrict the principle of nonintervention in the
internal affairs of another country and called for multilateral action to defend
7 David Forsythe, “Human Rights, the United States and the Organizations of American States”
[1991] 13 Human Rights Quarterly 75.

8 Katherine M. Marino, Feminism for the Americas: The Making of an International Human Rights
Movement (UNC Press Books 2019).

104 Par Engstrom
democracy and human rights. Larreta argued that the principles of sovereignty
and nonintervention could be misused to shield abusive governments, and that
nonintervention had to be “harmonized” with other foundational principles of
the Inter-American System, most notably the protection of fundamental human
rights. While the proposal was never formally approved, it reflected a willing-
ness to lobby for regional institutions having intrusive human rights mandates
and foreshadowed more contemporary notions of conditional sovereignty and
global intervention duties in response to mass atrocities.9 Similarly, the notion of
popular sovereignty also figured prominently in debates concerning the right of
peoples to self-government. The 1948 Bogotá Conference adopted a resolution
on the “Preservation and Defence of Democracy in America,” and governments
agreeing to the resolution resolved to take any necessary measures to ensure that
“the free and sovereign right of their peoples to govern themselves in accordance
with their domestic aspirations” would not be violated.10
However, it should be recognized that while many of the States participating
in the simultaneous construction of the United Nations and Inter-American
System endorsed human rights in principle, they nonetheless remained reluc-
tant to accept any precise legal obligations that could legitimate international ac-
tion to enforce these principles. For example, as documented by Forsythe: “In
1948, only six of twenty-one states, not including the United States, wanted the
American Declaration to be part of the OAS Charter and hence binding interna-
tional law. And only eight of twenty voting states, again not including the United
States, wanted a binding convention on human rights.”11 That is, the American
Declaration, though providing a wide-ranging directory of rights, was clearly
not intended to be binding on signatory States.12 Moreover, given the historical
and regional power disparities in which American States were formed, certain
principles—most notably self-determination, the right to independence, and
freedom from intervention—came to guide their attempts at regional coop-
eration. Indeed, the emergence of the IAHRS vividly illustrates the challenges
inherent in the tensions between human rights promotion and concerns about
intervention in a regional context of longstanding power asymmetries.13
Nonetheless, the key point to note is that the early development of the IAHRS
simultaneously nourished and was shaped by the flourishing of human rights
9 Tom Long and Max Paul Friedman, “The Promise of Precommitment in Democracy and
Human Rights: The Hopeful, Forgotten Failure of the Larreta Doctrine” [2020] 18 Perspectives on
Politics 1088.
10 Ninth International Conference of American States, held at Bogota, Colombia, March 30–May
2, 1948, Resolution XXXII, <https://history.state.gov/historicaldocuments/frus1948v09/pg_1>

11 Forsythe (n. 7), 77.
12 Thomas Buergenthal and Dinah Shelton, Protecting Human Rights in the Americas: Cases and
Materials (International Institute of Human Rights 1995), 39.

13 Andrew Hurrell, “Security in Latin America” [1998] 74 International Affairs 531.
ideas and debates in the years leading up to and following the parallel adoptions
in 1948 of the American Declaration and the Universal Declaration. The inclu-
sion of human rights language in the founding text of the United Nations, with
distinct Latin American contributions and influences, channeled the history of
postwar global governance, with implications beyond the confines of the inter-
national human rights regime—such as in contemporary debates concerning
the notion of the Responsibility to Protect. Recognizing the interrelated genesis
of the UN and IAHRS regimes is part and parcel of ongoing efforts to bring to
light the role of the Global South in the origins and early development of the
international human rights regime. Latin American lawyers, diplomats, and
activists were key protagonists in shaping the emergence of global human rights
governance. These contributions are not only significant as a matter of histor-
ical accuracy, they also offer an important corrective to prevailing critiques of
human rights as created and imposed by powerful countries of the Global North.
The institutional origins of the IAHRS offer an important reminder that some
of the central ideas of modern international human rights did not originate in
the Global North. Rather, while not denying the pivotal role great powers played
in the design of the postwar international order, human rights principles and
law emerged to a very significant extent from the Global South, and from Latin
America in particular.14 Equally significant for the purposes of this chapter,
these institutional origins also point to a distinctly regional story underpinning
the development of the modern international human rights regime. Clearly,
the emergence of human rights as part of regional governance structures
in the Americas is not a simple story of hegemonic imposition. Rather, this emer-
gence resulted from a lengthy and complex transnational history of interaction
between external and local political forces and ideas about political organiza-
tion. Recognizing these early institutional contributions from the Global South
has important implications for thinking about the present and possible future
trajectories of global human rights politics.
3. The IAHRS and International Human Rights Standards
A second major contribution of the IAHRS to global human rights governance

is evident in its role as a human rights standard-setter. The IAHRS has been at
the forefront of normative developments in international human rights law and
in the process has contributed to progressive legal and institutional change.
Both the Inter-American Commission on Human Rights (IACHR) and the
14 Kathryn Sikkink, Evidence for Hope: Making Human Rights Work in the 21st Century (Princeton
University Press 2019), 56.

106 Par Engstrom
Inter-American Court of Human Rights (IACtHR) perform crucial functions in

the continued development of human rights standards. Specifically, the Court
has developed progressive human rights jurisprudence through its rulings, while
the Commission contributes to the development of soft law through its the-
matic reports and adoption of policy guidelines. This section summarizes four
particularly distinctive and illustrative areas of international human rights law
in which the IAHRS has been a prominent norm protagonist, with significant
ramifications for the region and beyond.
First, the System’s distinctive approach to transitional justice (TJ) and
reparations to victims of mass atrocities has had a particularly significant set of
influences on global legal and policy developments. The IAHRS’s dealings with
TJ have given rise to a broad set of State obligations. In particular, the IAHRS
has played a particularly prominent role in the strengthening of anti-impunity
norms: confirming that States have an international obligation to ensure ac-
countability for human rights violations, establish the truth, and repair harms
in the aftermath of mass atrocities.15 The System has also engaged in expansive
interpretations of States’ international obligations, which in the process has both
drawn on and contributed to the development of international criminal law. For
example, the IACtHR has argued that forced disappearances are prohibited by
ius cogens and declared them a continuous crime. These normative and legal
developments have exerted important influences on judicial and legal changes
in a range of Latin American countries, which in turn have facilitated ongoing
criminal prosecutions of perpetrators of past violations in the region.16 But the
IAHRS has also been an instrumental force in the global shift “away from a state’s
general duty to guarantee rights and toward the victim’s individual right to have
the government investigate and punish.”17 Most prominently, the IACtHR’s
rulings on amnesty laws have widened the space for judicial proceedings against
alleged human rights violators in national courts, and the Court’s amnesty ju-
risprudence has influenced accountability pressures beyond the region.18 In the
process, the System has developed a victim-oriented jurisprudence and prac-
tice, emphasizing the right to effective judicial remedy—namely, the right to a
15 Diego Rodriguez- Pinzon, “The Inter-American Human Rights System and Transitional
Processes,” in Antoine Buyse and Michael Hamilton (eds.), Transitional Jurisprudence and the
ECHR: Justice, Politics and Rights (Cambridge University Press 2011).
16 Ezequiel A. Gonzáles-Ocantos, Shifting Legal Visions: Judicial Change and Human Rights Trials
in Latin America (Cambridge University Press 2016).

17 Alexandra Huneeus, “International Criminal Law by Other Means: The Quasi- Criminal
Jurisdiction of the Human Rights Courts” [2013] 107 American Journal of International Law 8.
18 Louise Mallinder, “The End of Amnesty or Regional Overreach? Interpreting the Erosion of
South America’s Amnesty Laws” [2016] 65 International and Comparative Law Quarterly 645;
Christina Binder, “The Prohibition of Amnesties by the Inter-American Court of Human Rights”
[2011] 12 German Law Journal 1203; Gerald L. Neuman, “The External Reception of Inter-American
Human Rights Law” [2011] Quebec Journal of International Law 99.
fair trial and judicial protection—in other words, access to justice, as well as an
increasingly comprehensive, integral, and “holistic” set of reparation policies.19
The IACtHR’s policies of reparations now include monetary compensation
to victims, symbolic reparations (for example memorials), demands for State
reforms, and criminal prosecutions of individual perpetrators. Moreover, the
IACtHR’s activist remedial regime has led it to restrict the scope of State discre-
tion regarding remedies and to boost its institutional efforts to monitor State im-
plementation.20 As a result, the IAHRS’s TJ-related jurisprudence emphasizing
criminal accountability, the right to individual judicial redress, the right to
truth, and comprehensive reparations have had significant normative influences
on global TJ policy and law. For example, at the normative and jurisprudential
level, globally recognized human rights norms such as those concerning forced
disappearances, the right to truth, and the right to an identity can be traced back
to efforts by Latin American human rights actors, supported by the IAHRS, to
confront pervasive violations in the region.21
Second, the IAHRS has been at the forefront of international efforts at
reconceptualizing gender-based violence, not least since the 1994 adoption of the
Inter-American Convention on the Prevention, Punishment, and Eradication
of Violence against Women (the Belém do Pará Convention). The System’s ap-
proach to violence against women (VAW) has had a significant impact by de-
fining the concept of femicide, expanding the scope of State obligations, and
adopting a gender perspective on reparations. The IAHRS has been particularly
robust in highlighting the discriminatory character of VAW, including rape.
Since the mid-1990s, the IAHRS has qualified rape (on the basis of the serious
effects and the irreparable damage it causes) as torture under international law.
In addition to the moral and psychological suffering caused by rape, the IACtHR
has also highlighted the serious social and cultural effects such violations can
have on victims, particularly, but not exclusively, in terms of the relationship be-
tween the victim and her community. Moreover, the Court has addressed the
targeted nature of VAW in the context of armed conflict. Most noteworthy has
been the IAHRS’s conceptualization of VAW as “femicide.” The 2009 ruling by
the IACtHR in the so-called Cotton Field cases was a landmark in the judicial
struggle against gender-based violence. The Cotton Field cases (concerning the
19 Clara Sandoval, “Two Steps Forward, One Step Back: Reflections on the Jurisprudential Turn
of the Inter-American Court of Human Rights on Domestic Reparation Programmes” [2018] 22

International Journal of Human Rights 1192.
20 Alexandra Huneeus, “Reforming the State from Afar: Structural Reform Litigation at the
Human Rights Courts” [2015] 40 Yale Journal of International Law 1.

21 Reed Brody and Felipe Gonzalez, “Nunca Mas: An Analysis of International Instruments on
‘Disappearances’ ” [1997] 19 Human Rights Quarterly 365; Ariel E. Dulitzky, “The Latin-American
Flavor of Enforced Disappearances” [2019] 19 Chicago Journal of International Law 423; Thomas
M. Antkowiak, “Truth as Right and Remedy in International Human Rights Experience” [2002] 23
Michigan Journal of International Law 977.
108 Par Engstrom
murder of three women in Ciudad Juárez, Mexico) highlighted the discrimi-

natory character of lethal VAW, the social context in which such violence takes
place, and the special vulnerability of the victims. The Court stressed the gender-
based nature of the disappearances and killings and emphasized the fact that
these violations took place in the context of structural discrimination against
women, which extended to the Mexican authorities’ distinct lack of adequate
responses to the cases, leading to a pervasive state of impunity. In addition, the
IAHRS has held that States have a responsibility to not only investigate, adjudi-
cate, and sanction crimes of VAW but to act with due diligence to prevent such
crimes from occurring, including scenarios where the perpetrators are private
actors, as in domestic violence cases. The IACtHR has elaborated on the specific
aspects of States’ positive obligations to investigate instances of gender-based vi-
olence and to comprehensively assess the conditions that prevent women from
accessing justice in contexts of widespread impunity. It is also worth noting how
the IACtHR has increasingly developed what some observers refer to as a “ho-
listic gender approach” to reparations.22 This generally refers to the ways that the
Court both identifies relevant facts, violations, and victims in the cases before it
and to the extent that it adopts appropriately gender-sensitive reparations meas-
ures, including remedies that aim at transforming the sexual hierarchies at the
root of gender-based violence and discriminatory practices.
A third example of innovative IAHRS jurisprudence is the concept of the right
to a dignified life (vida digna), which also illustrates the potential of the IAHRS
to feed into global human rights debates.23 As highlighted in the previous sec-
tion, the ADHR includes a full range of rights, encompassing civil and political,
as well as economic, social, and cultural rights. However, in transforming the
ADHR’s provisions into legally binding obligations in the American Convention,
OAS member States clearly prioritized the former over the latter. Despite the
adoption of the San Salvador Protocol in 1988, much of the IAHRS caseload
and institutional attention have focused primarily on civil and political rights.
Historically, these normative priorities reflected the political and ideological
context of the Cold War in the Americas, during which the IAHRS was insti-
tutionally consolidated.24 The relative marginalization of socioeconomic rights
notwithstanding, the pervasive realities of poverty and material inequalities in
22 Ruth Rubio-Martin and Clara Sandoval, “Engendering the Reparations Jurisprudence of the
Inter-American Court of Human Rights: The Promise of the Cotton Field Judgment” [2011] 33
Human Rights Quarterly 1062.
23 Thomas M. Antkowiak, “A ‘Dignified Life’ and the Resurgence of Social Rights” [2020] 18
Northwestern Journal of Human Rights 1.

24 Par Engstrom, “The Inter-American Human Rights System and US-Latin American Relations,”
in Juan Pablo Scarfi and Andrew R. Tillman (eds.), Cooperation and Hegemony in US-Latin American
Relations: Revisiting the Western Hemisphere Idea, Studies of the Americas (Palgrave Macmillan
2016), 209–247; Patrick William Kelly, Sovereign Emergencies: Latin America and the Making of
Global Human Rights Politics (Cambridge University Press 2018).
the region have still left their mark on the IAHRS’s activities and caseload. Most
notably, the IACtHR has advanced a particularly innovative understanding of
the centrality of a range of social rights for human welfare. The IACtHR’s juris-
prudence on the right to life includes the notion of a “dignified and decent exist-
ence,” which necessarily encompasses the obligation to ensure basic economic,
social, and cultural rights.25 This interpretation of the fundamental right to life
advanced by the Court emphasizes the right of individuals and groups not to be
denied access to the material conditions that guarantee a dignified life. This juris-
prudential interpretation is in line with what some would call “the indivisibility
and interdependence of rights approach.”26 Similarly, the Court has interpreted
the fundamental civil rights notions of equal protection and nondiscrimination
in conjunction with a range of socioeconomic rights to include the right to so-
cial security and the right to a healthy environment, as well as access rights to
basic public services. In short, the Court’s notion of a dignified life consists of an
integrated understanding of the protection of rights and follows from its engage-
ment with the lived realities of people in the region, in particular traditionally
vulnerable and marginalized groups. As an illustration of the normative diffu-
sion of the IACtHR’s jurisprudence in this regard, it should be noted that the
concept of the right to a dignified life was recently recognized by the UN Human
Rights Committee in its General Comment No. 36 on the right to life, considered
by some as a significant breakthrough in efforts to promote the justiciability of
socioeconomic rights.27 The IACtHR’s recent jurisprudential turn has also lent
additional support to advocates for the justiciability of socioeconomic rights,
with an increasing number of its rulings recognizing the direct justiciability of
Article 26 of the American Convention.28 These are all potentially significant
developments for global efforts to promote the international justiciability of so-
cioeconomic rights.
Fourth, the IAHRS has also been in the vanguard of the international de-
velopment of Indigenous rights. Since the adoption of the landmark ruling
in the case of the Mayagna (Sumo) Awas Tingni community, the IACtHR
25 Jo M. Pasqualucci, “The Right to a Dignified Life (Vida Digna): The Integration of Economic
and Social Rights with Civil and Political Rights in the Inter-American Human Rights System”
[2008] 31 Hastings International and Comparative Law Review 1.
26 Mónica Feria Tinta, “Justiciability of Economic, Social, and Cultural Rights in the Inter-
American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions”
[2007] 29 Human Rights Quarterly 431.
27 Lucy McKernan and Bret Thiele, “UN Human Rights Committee Brings New Vitality to the
Right to Life” (OpenGlobalRights, February 13, 2019), <www.openglobalrights.org/un-human-rig

hts-committee-brings-new-vitality-to-the-right-to-life/> (accessed January 22, 2022).
28 Daniel Cerqueira, “Jurisprudencia de la Corte IDH en casos sobre DESCA: entre lo retorico y
lo impredecible” (Justicia en las Américas, January 7, 2020), <https://dplfblog.com/2020/01/07/jur

isprudencia-de-la-corte-idh-en-casos-sobre-desca-entre-lo-retorico-y-lo-impredecible/> (accessed
January 22, 2022).
110 Par Engstrom
has developed extensive Indigenous rights jurisprudence. The IAHRS has

recognized the collective rights of Indigenous communities to ancestral lands
and natural resources on the basis of their importance for the distinct cultural
identities of these communities. By interpreting the right to property (Article
21 of the American Convention) to include a right of Indigenous people to com-
munal property, the IAHRS has essentially advanced a communitarian under-
standing of human rights. Moreover, the IACtHR has also recognized the right
of Indigenous communities to consultation and participation in all matters
that could directly affect them. The IACtHR has argued that the right to free,
prior, and informed consent to any administrative or legal measure affecting
the livelihoods of Indigenous people is directly related to the general State ob-
ligation to guarantee the free and full exercise of Convention rights. As such,
States have duties to take positive measures to promote and protect Indigenous
rights. In addition, the IACtHR has generally adopted a broad interpretation
of these rights and corresponding State duties to include the protection of the
right of members of Indigenous communities to enjoy their own cultural and
traditional practices. The Court has argued that the rationale for these special
protections of Indigenous communities is to protect traditional ways of life, cus-
toms and beliefs, distinct cultural identities, and distinctive social and economic
structures. In short, the IACtHR has highlighted the importance of the effective
protection and preservation of the physical and cultural survival of Indigenous
peoples through the protection of their cultural diversity. The Court has argued
that the value of cultural diversity expands the scope of protection of Convention
rights, most notably the right to property, in order to protect the specific rights of
Indigenous peoples.
These jurisprudential developments notwithstanding, there have been recur-
rent tensions between, on the one hand, preserving the cultural identities and
traditional values of Indigenous peoples through protecting their right to lands
and natural resources, and on the other hand, economic development projects
and extractive industries. There have also been critiques of the Court’s tendency
to connect Indigenous rights to the right of property.29 Moreover, for some,
Indigenous-rights claims raise questions regarding the applicability of universal
conceptualizations of individual rights as advanced in the liberal tradition, which
has tended to dominate the evolution of the modern international human rights
regime, including the development of the IAHRS. Nonetheless, the IAHRS’s ex-
pansive and path-breaking jurisprudence on Indigenous rights—most notably
the notion of collective land rights—has stimulated practices of cross-regional
29 Thomas M. Antkowiak, “Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-
American Court” [2013] 35 University of Pennsylvania Journal of International Law 113.

judicial dialogue with other regional human rights systems, particularly with the
African human rights system.30
Overall, the IAHRS’s normative contributions to global human rights are ex-
tensive and go beyond these illustrative examples. The IAHRS has responded
institutionally to the changing regional human rights landscape in ways that un-
derline the potential for normative and institutional change and adaptation in
human rights governance. In its practice, the IAHRS has shifted from its focus on
TJ-related human rights challenges toward dealing with issues related to struc-
tural and ongoing violence. Whether it is gender-based violence committed by
police and security forces or the rights of Indigenous groups to ancestral lands,
the IAHRS’s emphasis on accountability, victims’ rights, and reparations builds
on its decades-long engagement with TJ. The IAHRS is increasingly ambitious
not only in terms of the types of human rights challenges it deals with but also
in terms of what it demands from States. The IAHRS is pushing the normative
boundaries of international human rights, not least beyond the liberal min-
imalist definitions of human rights—most clearly illustrated in the System’s
Indigenous rights jurisprudence—as well as in its continually evolving and
expanding interpretation of the scope of State obligations, manifested, for ex-
ample, with respect to cases of femicide and its incipient engagement with en-
vironmental rights standards. As a result, through the diffusion of its normative
contributions the IAHRS has emerged as a central actor in global human rights
governance. Hence, while it is true that the IAHRS has adopted global common
human rights scripts and adapted them according to regional circumstances,31
the System has also significantly contributed to the evolution of global human
rights standards in multiple ways, some of which were outlined in this section.
4. The IAHRS and Transnationalized Human

Rights Implementation
As illustrated in the previous section, the IAHRS has undergone significant nor-
mative and institutional changes since its creation. Most notably, the IAHRS
has developed highly transnationalized structures of regional human rights
30 Mauro Barelli, “The Interplay Between Global and Regional Human Rights Systems in the
Construction of the Indigenous Rights Regime” [2010] 32 Human Rights Quarterly 951; Jérémie
Gilbert, “Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African
Commission on Human and Peoples’ Rights” [2011] 60 International & Comparative Law Quarterly
245; Lucy Claridge, “The Approach to UNDRIP within the African Regional Human Rights System”
[2019] 23 International Journal of Human Rights 267.
31 Alexandra Huneeus and Mikael Rask Madsen, “Between Universalism and Regional Law and
Politics: A Comparative History of the American, European, and African Human Rights Systems”
[2018] 16 International Journal of Constitutional Law 136.
112 Par Engstrom
governance. As I have documented elsewhere,32 three features of this trend to-

ward the transnationalization of the IAHRS in recent decades are particularly
significant: (1) as already noted in the previous section, the expansion and
increased intrusiveness of regional human rights norms and legal standards;
(2) the increased pluralism of actors and stakeholders engaging with the System;
and (3) the consolidation of decentralized implementation structures. This sec-
tion elaborates on the significance of the latter two features of the contemporary
IAHRS: the multiplicity of actors interacting with the System and its evolving
practices of decentralized modalities of human rights implementation. In a nut-
shell, the patterns of institutional change that the IAHRS has undergone are
significant not only for the System itself but also for the theory and practice of
global human rights governance more broadly, particularly in light of persistent
State resistance to human rights and the absence of robust and authoritative po-
litical enforcement structures.
The IAHRS has over the years developed from a “classical” intergovern-
mental regime into a transnational political space with a far-reaching human
rights mandate. From its roots as a government-run diplomatic entity with
a vaguely defined mandate to promote respect for human rights in the region,
the System has emerged as a legal regime formally empowering citizens to chal-
lenge their own governments’ human rights records. 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 human rights organizations to
the IAHRS 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.33 Undeniably, these are all fundamental
institutional changes hardly envisaged by the State representatives responsible
for the initial creation of the IAHRS. The gradual erosion of State control over
the IAHRS is clearly uneven and patchy, as the continuing reliance of the IAHRS
on US funding illustrates. Nonetheless, the System has developed an increasingly
extensive set of human rights norms and practices that legitimate both interna-
tional concern for the general welfare of individuals and action regarding the
internal human rights practices of States.34
32 Par Engstrom and Andrew Hurrell, “Why the Human Rights Regime in the Americas Matters,”
in Mónica Serrano and Vesselin Popovski (eds.), Human Rights Regimes in the Americas (United
Nations University Press 2010).
33 Par Engstrom, “Reconceptualizing the Impact of the Inter-American Human Rights System”
[2017] 8(2) Revista Dereito & Práxis 1250–1285, 1253.

34 David Harris, “Regional Protection of Human Rights: The Inter-American Achievement,” in
David Harris and Stephen Livingstone (eds.), The Inter-American Human Rights System (Clarendon
Press 1998).
The IAHRS has also developed important accountability functions. Both the
Commission and the Court regularly monitor and evaluate the human rights
performance of States. As a result, the IAHRS has established itself as an impor-
tant advocacy actor in its own right. The Commission has developed a set of tools
in addition to its role as a quasi-judicial organ processing individual cases, which
range from public diplomacy in the form of press releases, public hearings,
on-site visits, and interim measures (precautionary mechanisms), to behind-
the-scenes negotiations with State officials and individual petitioners (through
so-called friendly settlement proceedings).35 Moreover, the IAHRS performs
an important indirect advocacy role by providing a platform for human rights
NGOs, some of which have been very adept at integrating the IAHRS into their
domestic and transnational advocacy strategies.36 Admittedly, these are weak ac-
countability mechanisms when seen exclusively from a top-down enforcement
perspective. There are no enforcement mechanisms in place to hold States re-
sponsible for implementation. For example, there is no clearly mandated po-
litical compliance mechanism—like the one assumed by the Committee of
Ministers in the European human rights system. Nonetheless, the IAHRS amply
illustrates how accountability can operate through various channels, including
primarily domestic accountability mechanisms.37 Most notably, the set of ac-
countability functions provided by the IAHRS demonstrate how the System has
become increasingly inserted into domestic policy and legislative debates on
specific human rights issues across the region.
The normative and institutional evolution of the IAHRS has led to an increased
interaction between the IAHRS, domestic political processes, and national legal
orders. The internalization of IAHRS mechanisms and norms in domestic polit-
ical and legal systems has significantly altered the character of human rights im-
plementation. Human rights implementation has traditionally been dominated
by the political branches of government and largely controlled by the executive
and the Ministry of Foreign Affairs in particular. Although these entities remain
central to State compliance with IAHRS rulings and decisions, a broader range
of actors are now involved in implementation processes, accentuating the shift
toward decentralized human rights enforcement. As I have examined in more
detail elsewhere,38 the IAHRS affects and shapes political relationships in rela-
tion to three main set of actors.
35 Engstrom (n. 33) 1250–1285, 1257.

36 Par Engstrom and Peter Low, “Mobilising the Inter-American Human Rights System: Regional
Litigation and Domestic Human Rights Impact in Latin America,” in Par Engstrom (ed.), The Inter-
American Human Rights System: Impact Beyond Compliance (Springer 2019), 23–58.
37 Engstrom (n. 33), 1250–1285, 1258.
38 Engstrom (n. 33), 1250.
114 Par Engstrom
First, the IAHRS provides opportunities for domestic and transnational

human rights actors to bring pressure for change in their domestic political and
legal systems. The use of the IAHRS by human rights organizations across the
region has increased dramatically in recent decades. Human rights groups use
the IAHRS to expose systemic human rights violations, negotiate with State
institutions, frame social and political debates on the basis of IAHRS norms
and jurisprudence, promote the interests of vulnerable groups, boost human
rights litigation before domestic courts, and to strengthen regional human rights
networks through the use of the IAHRS in strategic supranational litigation.
While the capacity of actors to access and mobilize the IAHRS is highly une-
qual, organized civil society groups have become the lifeblood of the IAHRS. The
availability of the IAHRS for human rights groups has the potential to strengthen
the domestic position of those groups engaging with the System, particularly
when faced with resistance and obstacles at home. Moreover, at various critical
conjunctures the System has found allies in regional human rights movements.
However, it needs to be recognized that from efforts to hold perpetrators to ac-
count for gender violence in Mexico to mobilization around LGBTIQ+or land
rights in Brazil, human rights groups face regular harassment, political vilifica-
tion, and violence. In the face of these realities, the IAHRS’s often slow-moving
procedures are of little direct or immediate help. The IAHRS has attempted
to respond to these realities by developing specific institutional mechanisms
aimed at supporting human rights defenders, such as its use of precautionary
measures (medidas cautelares) to respond quickly to situations of acute risks.
This illustrates that human rights actors tend not to remain passive recipients
of international human rights norms, and important feedback mechanisms are
generated as these actors influence the development of international norms and
institutions.39
Second, with the expansion of international human rights standards, do-
mestic court systems have come to play an increasingly prominent role as arenas
of human rights implementation. In the countries of the IAHRS, as in many
other States, a wide range of human rights treaties and conventions have become
embedded in domestic legal systems.40 The constitutional incorporation of in-
ternational human rights treaties has made domestic courts key actors with a
potential to activate human rights treaties and interpret international norms in
light of domestic conditions.41 While there is significant variation not just in the
39 Ibid., 1261 ff.

40 Armin von Bogdandy et al., Transformative Constitutionalism in Latin America: The Emergence
of a New Ius Commune (Oxford University Press 2017).
41 Marcelo Torelly, “Transnational Legal Process and Fundamental Rights in Latin America: How
Does the Inter-American Human Rights System Reshape Domestic Constitutional Rights?,” in Pedro
Fortes et al. (eds.), Law and Policy in Latin America: Transforming Courts, Institutions, and Rights
(Palgrave Macmillan 2017), 21–38.
effective enforcement of human rights within domestic legal systems but also in
the willingness and ability of judges to engage in the transnational legal culture of
human rights, domestic judges have become important political actors shaping
the ways in which international human rights are applied domestically. Moreover,
the IAHRS has been an active participant in these efforts at activating domestic
judiciaries as enforcers of regional norms and standards. A unique aspect of
the IACtHR’s relationship with domestic judiciaries is the doctrine of “conven-
tionality control,” which states that all State actors must review laws under the
American Convention and not apply laws found to be in violation of it. Through
this doctrine, the Court seeks to enlist all State actors in monitoring compliance
with the Convention, as interpreted by the Court. Hence, the Inter-American
Court has sought to expand the role of domestic judiciaries in enforcing the
American Convention and the rulings of the Court itself. Conventionality control
has the potential to extend the shadow of the Court far beyond its relatively small
docket. In so doing, however, it also seeks to harmonize judicial interpretations
of the American Convention. This has led some legal scholars to suggest that the
IACtHR has been transformed into a “supranational human rights constitutional
court,” whose role is to standardize the interpretation of rights enshrined in the
American Convention.42 While some legal scholars have quite sharply criticized
the Court’s attempts to extend its authority43—on the grounds of both its alleged
limited effectiveness and shaky legitimacy—regional jurisprudential interac-
tion and legal dialogues have intensified in recent years.44 There has also been
an incipient yet increasing trend toward extraregional judicial dialogues.45 It is
clearly the case that regional human rights systems, including the IAHRS, op-
erate in a fertile environment of interlegality, one characterized by a plurality of
domestic and international legal and judicial systems. This provides ample scope
for judicial dialogue and exchange, as evidenced, for example, in rapidly evolving
human rights jurisprudence on issues such as sexual orientation rights and the
applicability of amnesties—both areas in which the IAHRS has made significant
normative contributions.
Third, the domestic internalization of IAHRS mechanisms and norms
has also shifted the ways in which the System engages with States. With the
IAHRS no longer concerned primarily with “naming and shaming” repressive
42 E.g., Ariel E. Dulitzky, “An Inter-American Constitutional Court? The Invention of the
Conventionality Control by the Inter- American Court of Human Rights” [2015] 50 Texas
International Law Journal 45; Engstrom (n. 33), 1266.
43 Jorge Contesse, “Contestation and Deference in the Inter-
American Human Rights System
Subsidiarity in Global Governance” [2016] 79 Law and Contemporary Problems 123.
44 Ezequiel Gonzalez- Ocantos, “Communicative Entrepreneurs: The Case of the Inter-
American Court of Human Rights’ Dialogue with National Judges” [2018] 62 International Studies
Quarterly 737.
45 See Neuman (n. 18).
116 Par Engstrom
authoritarian regimes, it instead engages with a variety of nominally democratic

regimes through a quasi-judicial process that assumes at least partially respon-
sive State institutions. This broader point underlines the potential for State actors
and institutions to act as “compliance constituencies” and conduits for domestic
implementation, linking international human rights norms to domestic political
and legal institutions and actors. Different State institutions are now engaging
with the System, which has led to the “disaggregation” of the relationship be-
tween countries and the IAHRS. This increasingly means that States no longer in-
teract with the System solely through their respective Ministry of Foreign Affairs
but through a number of different institutional channels including Ministries of
Justice, Ministerios Públicos, and subnational authorities. The IACHR’s friendly
settlement procedures, for example, are frequently used to facilitate negotiations
between different State institutions and petitioners. Furthermore, due to the
IACtHR’s creative remedial regime, the Court frequently issues orders that re-
quire action from State actors other than the executive. The impact of the IAHRS
on the formulation and implementation of public policy is to a large extent a
function of its embeddedness, or institutionalization, in State institutions and
depends on whether a State has effectively organized its institutions in ways that
provide effective remedies for human rights violations. Interestingly, a more stra-
tegic vision of the IAHRS appears to be increasingly recognized within some State
bureaucracies across Latin America. State prosecutors’ offices in several coun-
tries (for example, Argentina and Brazil) have created dedicated human rights
units to actively petition the Inter-American Commission. Few Latin American
States, however, have formal institutional mechanisms in place to ensure con-
sistent implementation of IAHRS decisions and recommendations. Nonetheless,
the IAHRS can provide a political space for discussions and negotiations be-
tween the key actors involved in human rights reforms (including different parts
of the State): it provides an authoritative set of norms and standards to regulate
the specific issue-area subject to the reforms, and it adds an additional layer of
political pressure, momentum, and urgency to the resolution of human rights
problems.46
In short, these illustrations of the transnational dynamics of human rights im-
plementation in the context of the IAHRS offer important insights into how inter-
national law and institutions might operate against the odds or when confronted
with inhospitable conditions. It is precisely in this way that the IAHRS stands out
as an exemplar of contemporary human rights governance. The IAHRS is able to
exert influence on human rights outcomes from a position of relative weakness.
The System has limited leverage and highly inadequate resources at its disposal,
particularly when considered in relation to the scale and number of human rights
46 Engstrom (n. 33), 1268 ff.

challenges it confronts. It has no consistent backing from powerful States and

there are no formal sanction mechanisms underpinning the System’s rulings and
decisions; the IAHRS is disconnected from regional political and economic gov-
ernance structures; and there is no equivalent of EU accession incentives in the
Americas. Moreover, the regional context in which the IAHRS operates displays
limited normative convergence around values of human rights and democracy;
civil society spaces are restricted in many places, and there are both material and
political obstacles to the construction of influential epistemic communities that
could support the System when most needed.
Despite these significant limitations and institutional obstacles to effective
human rights implementation, the IAHRS has continually evolved and devel-
oped innovative mechanisms to remedy its inherent enforcement deficits. As
such, the IAHRS has the potential to offer human rights scholarship and advo-
cacy significant insights into how human rights may continue to matter even in
adverse political circumstances. Indeed, in some important ways global human
rights politics has started to increasingly resemble the political conditions in
which the IAHRS emerged, developed, and currently operates. While the poli-
tics surrounding the IAHRS demonstrates that sustained human rights activism
has strengthened processes of socialization in many societies, rule-consistent
behavior as predicted by earlier human rights scholarship has quite clearly not
materialized.47 This should draw our attention to the continuing political con-
testation over human rights in the Americas and elsewhere. The domestic im-
pact of international human rights norms is invariably mediated by their broader
normative salience in local contexts.48 This reminds us of the risks that the rei-
fication of the “the lens of rule-compliance” poses to advancing our knowledge
on local understandings of international human rights.49 As Robert Howse and
Ruti Teitel argue, “Interpretation is pervasively determinative of what happens
to legal rules when they are out in the world; and yet ‘compliance’ studies begin
with the notion that to look at effects, we start with an assumed stable and agreed
meaning to a rule, and whether it is complied with or obeyed, so understood.”50
In a global context of human rights contention, the IAHRS offers an important
reminder that resistance has tended to be the norm in the history of international
human rights. It is important, therefore, to recognize that the IAHRS, as part
of a complex institutional network of international human rights institutions,
47 Thomas Risse- Kappen, Steve C. Ropp, and Kathryn Sikkink (eds.), The Power of Human
Rights: International Norms and Domestic Change, Cambridge Studies in International Relations
(Cambridge University Press 1999), 66.
48 Mark Goodale and Sally Engle Merry (eds.), The Practice of Human Rights Tracking Law between
the Global and the Local Cambridge Studies in Law and Society (Cambridge University Press 2007).
49 Engstrom (n. 24).
50 Robert Howse and Ruti Teitel, “Beyond Compliance: Rethinking Why International Law Really
Matters: Beyond Compliance” [2010] 1 Global Policy 135.

118 Par Engstrom
provides a crucial exemplar of how these institutions can still make a difference,
even in a world of increasing hostility to both the idea and practice of human
rights.
5. Human Rights Futures: A World of Regions and

Experimental Governance
The central message of this chapter is that the IAHRS offers crucial insights into
the past, present, and potential futures of global human rights governance. From
its origins as a declaratory regime governed by States, the institutional evolution
of the IAHRS into a transnational human rights system has been remarkable.
And yet there has never been anything inevitable in how the IAHRS has devel-
oped over the years. The present conjuncture of multiple and interlocking polit-
ical challenges facing the System is clearly a powerful reminder in this regard.
Such challenges notwithstanding, the IAHRS also demonstrates that human
rights institutions are more resilient than may be immediately apparent. Against
this background, and in lieu of a conventional conclusion, I would like to end
this chapter with some reflections on what the possible futures of global human
rights might look like when informed by the varied experiences of the IAHRS.
The first point to note is that regional systems have emerged as central ac-
tors in global governance and are pivotal for the future of international human
rights. After all, it is precisely in regional systems that much if not most of human
rights action takes place. As this chapter illustrates, this has been true since the
birth of modern international human rights. This is also one of the main reasons
why regional human rights systems are crucial for understanding future human
rights trajectories. However, most of the now dominant critiques of human
rights—whether Stephen Hopgood’s “endtimes” narrative, Eric Posner’s “twi-
light” diagnosis, or Samuel Moyn’s insufficiency thesis—focus nearly exclusively
on global accounts of human rights.51 These accounts tend to marginalize, or en-
tirely ignore, regional systems: their attention is turned toward the UN-based
system, the role of Western States, and the human rights politics of global NGOs.
Furthermore, their emphasis is almost exclusively on the role of the West in the
genesis, historical development, and future of human rights law, institutions,
and policy. As a result, with the ongoing sovereigntist and nationalist turn in
US and European politics, these scholarly accounts forecast the imminent de-
mise of human rights. And yet, while not dismissing the central role of the
United States and the nominally liberal West in the development of international
51 Hopgood (n. 1); Eric Posner, The Twilight of Human Rights Law (Oxford University Press 2014);
Moyn (n. 2).

human rights, its history and future is more plural and diverse than these ac-
counts claim. As this chapter highlights, other actors than Western governments
have been central protagonists in the development of international human rights
law, policy, and practice; and they are likely to continue playing that role, with or
without US and European leadership.
Moreover, regional perspectives on human rights tell us something important
about institutional resilience even in adverse geopolitical contexts. The IAHRS
is exemplary of the fact that human rights have never been a consensus project.
Its institutional history is ripe with conflict and resistance to ambitious human
rights norms and practices. The System also amply illustrates the potential of
institutionally expanding human rights in a historically unstable region of the
world. It offers an example of institutional survival despite dramatic adverse po-
litical shifts. Put differently, the case of the IAHRS offers insights into processes
of institutional adaptation and resilience in illiberal or hostile political contexts.
As I have argued elsewhere,52 the IAHRS is institutionally more resilient than
generalized narratives of a human rights “end-times” suggest. After all, despite
the rise of anti-rights politics in the region, human rights norms developed by the
IAHRS remain formally embedded in national constitutions and domestic legis-
lation. The formal embedment of human rights norms in domestic law provides
crucial opportunities for individuals and groups to claim, define, and struggle
over human rights. The institutional “stickiness” of the IAHRS is particularly
noteworthy when compared to global human rights institutions. As this chapter
highlights, the IAHRS is regularly engaged in dense interactions with domestic
courts and State bureaucracies and is becoming far more deeply embedded in na-
tional systems than the UN System. This domestic institutionalization of regional
human rights also highlights some intriguing, persistent puzzles: the IAHRS is
subjected to chronic underfunding, is generally perceived to be characterized
by an ongoing compliance crisis, and is facing strident resistance and back-
lash. And yet the demands on the IAHRS are ever increasing. A steadily rising
number of cases are submitted to the Inter-American Commission. There are
indications that a greater proportion of national high courts in the region are
more consistently engaging with the jurisprudence of the Inter-American Court.
Furthermore, even backlash could be understood as a specific response to the
increasing impact or relevance of the IAHRS. After all, why spend so much polit-
ical capital and attention on an irrelevant international human rights institution?
Similarly, regional systems are also important alternatives to the universal
systems increasingly under strain. The UN human rights system is currently
rocked by yet another budget crisis, which, for example, has led to the reduction
52 Par Engstrom, “Between Hope and Despair: Progress and Resilience in the Inter-American
Human Rights System” [2019] 113 American Journal of International Law Unbound 370.
120 Par Engstrom
of the monitoring activities of UN treaty bodies. In the case of the International

Criminal Court (ICC), it is subject to increasingly strident criticisms, including
from many human rights advocates who despair at the ICC’s perceived double
standards and lack of bite. From this perspective, regional systems may seem
quite attractive when pursuing human rights accountability. This is particularly
the case in regional contexts characterized by widespread and persistent impu-
nity, including for gross and systematic human rights violations. It is striking,
therefore, that the ICC is subject to such sustained political and scholarly atten-
tion despite its limited reach and narrow caseload. Indeed, the IAHRS has de-
veloped what Alexandra Huneeus refers to as a quasi-criminal jurisdiction that
pushes States to prosecute human rights criminals in domestic courts.53 The
IAHRS offers, in this sense, an important alternative to international criminal
justice strategies, which requires more attention.
In short, a fuller recognition of the regional character of global human rights
is both analytically and normatively essential. In the first instance, it captures
something empirically important about how global human rights governance
actually works. The IAHRS and other regional human rights systems are part of a
global network of human rights governance. There are important, yet still poorly
understood, interactive effects, institutional feedback loops, and structural com-
plementarity between existing institutional mechanisms within this networked
global governance system. There are reasons to expect that the potential impact
of human rights standards and institutions is greatest when they are deployed in
a coordinated fashion. For example, specific rulings or awareness-raising activ-
ities can generate human rights changes in and by themselves, but their impact
may be amplified if they occur within a broad and coordinated strategy. In many
human rights areas, there are a plethora of instruments that may range from in-
ternational treaties, Special Rapporteurships conducting in-country visits, indi-
vidual petition mechanisms and litigation opportunities, and international court
rulings. Where used strategically and in tandem, the mechanisms can be mu-
tually reinforcing and augment the impact of one another. However, impact is
likely to be more limited when mechanisms are used in isolation.
A more diffused, multilayered, and networked global human rights poli-
tics is also normatively desirable, as captured in experimentalist approaches to
human rights governance.54 It is clearly the case that international human rights
institutions need to develop more sustained and collaborative relationships
with a range of relevant stakeholders and actors at the local level, not least in
order to strengthen the likelihood of effective and sustainable human rights
53 Huneeus (n. 17).

54 Gráinne de Búrca, “Human Rights Experimentalism” [2017] 111 American Journal of
implementation. The multifaceted contributions of the IAHRS outlined in this

chapter point to the crucial role that the System has played in the development
of global human rights governance. All human rights institutions share similar
sets of challenges, whether limited State compliance with rulings and decisions,
States seeking to reduce institutional mandates and undermine their legitimacy,
or increasing case backlogs combined with increasingly squeezed resources.
Despite the many political, institutional, and legal differences between the var-
ious human rights systems, important insights gained from any given institu-
tion can inform approaches and practices elsewhere. It is precisely in this respect
that the IAHRS stands as an exemplar of the highly imperfect, often messy and
contested, yet impactful and deeply meaningful human rights politics, especially
for the many people who continue to struggle for the realization of their rights.
I.6
Conventionality Control
An Expression of the Basic Elements of the Judicial
Function
By Miriam Lorena Henríquez Viñas and José Ignacio Núñez Leiva
1. Introduction
In September 2006, the Inter-American Court of Human Rights (Inter-American

Court, or IACtHR) issued a ruling in the case of Almonacid Arellano v. Chile.
In Paragraph 124 of the judgment, the Court coined the term “conventionality
control,” stating that domestic legislation must conform with the American
Convention of Human Rights (American Convention, or ACHR). The Court
also noted that the domestic judges must apply “a kind of control of convention-
ality” when legislators do not comply with this doctrine.
In judgments that followed, the Inter-American Court asserted that con-
ventionality control is a compatibility test. In domestic cases, the adjudicator
must either interpret the applicable norms in a way that is compatible with the
obligations derived from the American Convention as elaborated in IACtHR ju-
risprudence or, if such interpretation is impossible, invalidate or decline to en-
force the domestic law.
Studies of constitutional law and international human rights law, as well
as inter-American jurisprudence, have differentiated between external
and internal conventionality control,1 between concentrated and diffuse
1 This distinction was introduced by Sergio García Ramírez, who stated: “The control of the own,
original or external conventionality falls on the supranational court called to exercise the confron-
tation between domestic acts and conventional dispositions, in this case, to appreciate the compati-
bility between the former and the latter—under the rule of international human rights law—and to
solve the conflict through the corresponding declarative and condemnatory judgment. Ultimately,
this control is incumbent, originally and officially, on the IACHR when it comes to examining cases
of which it is aware and to which it applies standards in accordance with its own material jurisdiction.
That is why the Court has referred to its own, original or external control.”
Internal control, on the other hand, García Ramírez defined as “the power conferred or recognized
to certain courts—or to all courts, as we will see below—to verify the consistency between internal
acts—thus, essentially, domestic provisions of general scope: Constitutions, laws, regulations, etc.—
with the provisions of international law (which, in the hypothesis that interests me, I will reduce to
one of its expressions: international human rights law, and more strictly the inter-American law on
Miriam Lorena Henríquez Viñas and José Ignacio Núñez Leiva, Conventionality Control In: The Impact of the Inter-American
Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela
Morales Antoniazzi, Oxford University Press. © Miriam Lorena Henríquez Viñas and José Ignacio Núñez Leiva 2024.
DOI: 10.1093/oso/9780197744161.003.0007
control,2 and, more recently, between conventionality control as res judicata

and as res interpretata. Instead of clarifying the concept, these distinctions have
raised doubts about the nature of conventionality control as well as questions
about the coherence of the content and scope of each category.
In this chapter, we argue that conventionality control consists of the three
elements inherent to the judicial function: (1) to know, (2) to judge, and (3) to
enforce judgments. From this, we develop a more precise understanding of con-
ventionality control and a broader, more comprehensive conception of its dis-
tinctive forms.
Accordingly, we propose the following general hypothesis: the praetorian
development of conventionality control by the Inter-American Court involves
the essential elements of the judicial function: to know, to judge, and to enforce
judgments. Our first sub-hypothesis states that external and concentrated con-
trol and internal conventionality control complement each other in examining
compatibility between domestic acts and the inter-American corpus juris (i.e.,
all inter-American treaties and jurisprudence). The second sub-hypothesis states
that conventionality control also constitutes res judicata, because an IACtHR
judgment will later be executed by the competent domestic institutions, while
the Court monitors their compliance. The third sub-hypothesis states that in-
ternal conventionality control coincides with diffuse control and applies res
interpretata, as well as complements and prevents external control.
this subject)”; see Sergio García Ramírez, “El control judicial interno de convencionalidad” [2011]
5(28) Revista Ius 123.
2 Eduardo Ferrer Mac-Gregor differentiated between concentrated and diffuse control of conven-
tionality: “In this sense, the ‘concentrated control of conventionality’ had been carried out by the
IACHR since its first judgments (...) Now, this ‘control’ has been extended as an obligation of ac-
tion in the internal sphere to all national judges (hence its ‘diffuse’ character).” Eduardo Ferrer Mac-
Gregor, “El control difuso de convencionalidad en el Estado Constitucional,” in Héctor Fix-Zamudio
and Diego Valadés (coords.), Formación y perspectiva del Estado en México (El Colegio Nacional-
UNAM 2010).
Ferrer Mac-Gregor also considered distinct intensity levels of conventionality control: “[T]‌he in-
tensity level of the diffuse conventionality control will decrease in those systems where the ‘diffuse
constitutionality control’ is not allowed and, therefore, not all judges have the faculty to stop applying
a law to the specific case. In these cases, it is clear that judges who lack such competence will exer-
cise ‘diffuse conventionality control’ with less intensity, but this does not mean that they cannot do
so ‘within their respective competences.’ The preceding implies that they may not fail to apply the
rule (since they do not have that power), and they must, in any case, make a ‘conventional interpre-
tation’ of it, that is to say, make a ‘conforming interpretation,’ not only of the national Constitution
but also of the American Convention and the conventional jurisprudence.” Eduardo Ferrer Mac-
Gregor, “Reflexiones sobre el control difuso de convencionalidad,” in Opus Magna Constitucional
Guatemalteco, Tomo III (Instituto de Justicia Constitucional 2011).
For the purposes of this chapter, “diffuse control” refers to the fact that all national judges must ex-
ercise the conventionality control. Its greater or lesser intensity depends on the power that the judge
must disregard or invalidate a rule that is incompatible with inter-American standards, which varies
according to the dictates of the constitutional justice system.
124 Miriam Lorena Henríquez Viñas and José Ignacio Núñez Leiva
This chapter thus seeks to provide a framework for understanding all aspects
of conventionality control. In doing so, it emphasizes the regulatory nature of the
activity of the Inter-American Court and the role of domestic courts in the en-
forcement of IACtHR decisions. This emphasis addresses the domestic impact of
conventionality control, as well as the less studied areas of implementation and
enforcement of judgments and monitoring of compliance.
2. Methodology
To test the hypothesis, we review compliance monitoring resolutions issued by

the Inter-American Court from 2006 (i.e., beginning with the case of Almonacid
Arellano and others v. Chile, or the first time the IACtHR mentioned convention-
ality control) to January 2019. Except for the introductory remarks in section
2, our analysis does not delve into judgments in contentious cases, which are
already discussed in detail in the literature on internal conventionality control.3
We consider each of the judgments from this period as a unit of analysis in
which we searched for the term “conventionality control.” We then categorized
these judgments. We identified those rulings that expressly contain the term
“conventionality control” in the body of the judgment (as opposed to in the
quotations or the footnotes) and we extracted the relevant paragraph. We
dispensed with judgments that merely referred to conventionality control and
did not further specify different categories of control;4 judgments that mentioned
conventionality control only in reference to the judgment of the contentious
case that had given rise to the current monitoring of compliance;5 judgments
that quoted inter-American decisions in contentious cases in which a single cat-
egory of conventionality control was discussed;6 and judgments that assessed
3 For a complete list of relevant judgments in contentious cases, see Miriam Henríquez, “El control
de convencionalidad interno. Su conceptualización en la jurisprudencia de la Corte Interamericana

de Derechos Humanos” [2019] 19 XIX Anuario Mexicano de Derecho Internacional 327.
4 Zambrano Vélez et al. v. Ecuador [2009], Oversight of Judgment Compliance, Resolution, Inter-
American Court of Human Rights, provision 42; Barrios Altos v. Peru [2012], Oversight of Judgment
Compliance, Resolution of the Inter-American Court of Human Rights, provision 24; Radilla Pacheco
v. Mexico [2013], Oversight of Judgment Compliance, Resolution of the Inter-American Court of
Human Rights provisions 5, 19, 26, 31; Gonzalez et al. (Campo Algodonero) Mexico [2013], Oversight
of Judgment Compliance, Resolution of the Inter-American Court of Human Rights, provision 78;
Cabrera García and Montiel Flores v. Mexico [2015], Oversight of Judgment Compliance, Resolution
of the Inter-American Court of Human Rights, provision 16, 21; Radilla Pacheco, Fernández Ortega
et al., and Rosendo Cantú et al. v. Mexico [2015], Resolution of the Inter-American Court of Human
Rights, provision 16; Guatemalan Cases [2015], Oversight of Judgment Compliance, Resolution of
the Inter-American Court of Human Rights, provision 68.
5 Radilla Pacheco v. Mexico [2012], Oversight of Judgment Compliance, Resolution of the Inter-
American Court of Human Rights, provision 17.

6 Fermín Ramírez v. Guatemala, Raxcacó Reyes v. Guatemala [2008], Oversight of Judgment
Compliance, Resolution of the Inter-American Court of Human Rights, provision 63; “Cinco
Pensionistas” v. Peru [2009], Oversight of Judgment Compliance, Resolution of the Inter-American
compliance with reparation measures involving a course, program, or seminar

on conventionality control.7 We then grouped the judgments that differentiated
between different categories of conventionality control based on their target and
purpose. We proceeded with our examination of each judgment in chronolog-
ical order.
3. The Meaning of Conventionality Control
To understand conventionality control, it is necessary to answer some specific

questions: What is conventionality control? What is the object and scope of
the control? What is the purpose of control? Which authority has the power to
control? Considering the first question, the conventionality control is an anal-
ysis of the compatibility between domestic standards, on the one hand, and the
standards of the American Convention as well as the interpretation of the ACHR
by the Inter-American Court, on the other.
What is the object and scope of control? The object of conventionality control
is “internal legal standards” or “internal standards,” such as regulations, legisla-
tion, and constitution. The scope of this control is determined by the American
Convention,8 as well as other treaties over which the Inter-American Court has
Court of Human Rights, provision 35; Bámaca Velásquez v. Guatemala [2010], Oversight of
Judgment Compliance, Resolution of the Inter-American Court of Human Rights, recital 33; Loayza
TaMay v. Peru [2011], Oversight of Judgment Compliance, Resolution of the Inter-American
Court of Human Rights, provision 35; Castillo Petruzzi et al. v. Peru [2011], Oversight of Judgment
Compliance, Resolution of the Inter-American Court of Human Rights, provision 20; Lori Berenson
Mejía s. Peru [2012], Oversight of Judgment Compliance, Resolution of the Inter-American Court
of Human Rights, provision 18; Barrios Altos v. Peru [2012], Oversight of Judgment Compliance,
Resolution of the Inter-American Court of Human Rights, provision 24; Castañeda Gutman
v. Mexico [2013], Oversight of Judgment Compliance, Resolution of the Inter-American Court
of Human Rights, provision 23; 11 cases against Guatemala regarding the obligation to investigate,
prosecute and, if applicable, punish those responsible for human rights violations [2014], Oversight of
Judgment Compliance, Resolution of the Inter-American Court of Human Rights, provision 17.
7 Atala Riffo and daughters v. Chile [2013], Oversight of Judgment Compliance, Resolution of the
Inter-American Court of Human Rights, provision 31; Rochac Hernández et al. v. El Salvador [2017],
Oversight of Judgment Compliance, Resolution of the Inter-American Court of Human Rights, pro-
vision 17.
8 The American Convention on Human Rights was said to determine the scope of conven-
tionality control in 28 of the 36 cases decided by the Inter-American Court under the conditions
outlined in the introduction to this chapter. See (1) CIDH, Almonacid Arellano et al. v. Chile, pro-
vision 124; (2) The Dismissed Congressional Employees (Aguado-Alfaro et al.) v. Peru, provision 128;
(3) La Cantuta v. Peru, provision 173; (4) Boyce et al. v. Barbados, provision 78; (5) Radilla Pachecho
v. Mexico, provision 339; (6) The Xákmok Kásek indigenous community v. Paraguay, provision 311;
(7) Fernández Ortega et al. v. Mexico, provision 236; (8) Rosendo Cantú et al. v. Mexico, provision
219; (9) Ibsen Cárdenas and Ibsen Peña v. Bolivia, provision 202; (10) Vélez Loor v. Panamá, provision
287; (11) Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brasil, provision 176; (12) Cabrera García
and Montiel Flores v. México, provision 225; (13) Gelman v. Uruguay, provision 193; (14) Chocrón
Chocrón v. Venezuela, provisions 164 and 171; (15) López Mendoza v. Venezuela, provision 226; (16)
Fontevecchia and D’Amico v. Argentina, provision 93; (17) Atala Riffo and daughters v. Chile, provision
subject matter jurisdiction and the inter-American treaties to which the State is
a party.9 The Inter-American Court has ruled that the scope of conventionality
controls also extends to encompass the IACtHR’s interpretations of these treaties
since the Court is the ultimate authority on the American Convention.10
The specific standards subject to control are those applicable to each case. In
the above-mentioned case of Almonacid Arellano v. Chile, the Inter-American
Court explained that “the Judiciary must exercise a sort of ‘conventionality con-
trol’ between the domestic legal provisions which are applied to specific cases
and the American Convention on Human Rights.” The Court repeated this
explanation in the cases of La Cantuta v. Peru (2006)11 and Boyce v. Barbados
(2007).12 Beginning with the judgment in the case of Radilla Pacheco v. Mexico
282; (18) Furlan and family v. Argentina, provision 303; (19) The Massacres of El Mozote and nearby
places v. El Salvador, provision 318; (20) The Santo Domingo Massacre v. Colombia, provision 142; (21)
J. v. Peru, provision 407; (22) Liakat Ali Alibux v. Surinam, provision 151; (23) Expelled dominicans
and haitians v. República Dominicana, provision 311; (24) Rochac Hernández et al. v. El Salvador,
Merits, reparations and costs, Judgment of the Inter-American Court of Human Rights (October
14, 2014), provision 213; (25) López Lone et al. v. Honduras, provision 307; (26) The Punta Piedra
Garifuna Community and its members v. Honduras, provisions 211, 255, and 346; (27) Chinchilla
Sandoval v. Guatemala, provision 242; and (28) The Hacienda Brasil Verde Workers v. Brazil, provi-
sion 408.
9 In the case of Ibsen Cardenas v. Bolivia (2010), the Inter-American Court stated: “The Court
recalls that the purpose of its mandate is the application of the American Convention and other
treaties that grant it jurisdiction.” Ibsen Cárdenas and Ibsen Peña v. Bolivia, provision 199. Then, in the
case of The Río Negro Massacres v. Guatemala, the Court referred to the inter-American corpus juris
as determining the scope of conventionality control. The IACtHR also expressly stated that the corpus
juris consists of the American Convention and the other treaties of the Inter-American System. The
Río Negro Massacres v. Guatemala, paras. 142, 262; see also (1) Gudiel Álvarez et al. (“diario militar”)
v. Guatemala, provision 330; (2) Members of the Chichupac Village and neighboring communities of
the Municipality of Rabinal v. Guatemala, provision 289; and (3) Mendoza et al. v. Argentina, pro-
vision 221. In Mendoza et al. v. Argentina, the Inter-American Court stated that the scope of con-
ventionality controls is defined by “the human rights treaties to which the State is a party,” and then
specified that the domestic actors “must take into account not only the American Convention and
other inter-American instruments.”
10 The Court confirmed that inter-American jurisprudence sets the scope of control in 26 of the
36 judgments issued by the IACtHR under the conditions outlined in this chapter’s introduction. See
(*1) Almonacid Arellano et al. v. Chile, provision 124; (2) La Cantuta v. Peru, provision 173; (3) Boyce
et al. v. Barbados, provision 78; (4) Radilla Pachecho v. Mexico, provision 339; (5) The Xákmok Kásek
indigenous community v. Paraguay, provision 311; (6) Fernández Ortega et al. v. Mexico, provision 236;
(7) Rosendo Cantú et al. v. Mexico, provision 219; (8) Ibsen Cárdenas and Ibsen Peña v. Bolivia, provi-
sion 202; (9) Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brasil, provision 176; (10) Cabrera García
and Montiel Flores v. México, provision 225; (11) Gelman v. Uruguay, provision 193; (12) Chocrón
Chocrón v. Venezuela, provisions 164 and 171; (13) López Mendoza v. Venezuela, provision 226; (14)
Fontevecchia and D’Amico v. Argentina, provision 93; (15) Atala Riffo and daughters v. Chile, provision
282; (16) Furlan and family v. Argentina, provision 303; (17) The Río Negro Massacres v. Guatemala,
provision 262; (18) Gudiel Álvarez et al. (“diario militar”) v. Guatemala, provision 330; (19) The Santo
Domingo Massacre v. Colombia, provision 142; (20) Mendoza et al. v. Argentina, provision 221; (21)
J. v. Peru, provision 407; (22) Expelled dominicans and haitians v. República Dominicana, provision
311; (23) López Lone et al. v. Honduras, provision 307; (24) The Punta Piedra Garifuna Community
and its members v. Honduras, provisions 211, 255, and 346; (25) Chinchilla Sandoval v. Guatemala,
provision 242; and (26) The Hacienda Brasil Verde Workers v. Brazil, provision 408.
11 La Cantuta v. Peru, provision 173.
12 Boyce y otros v. Barbados, provision 78.
(2009), however, the Inter-American Court left aside the mention that such the
standards of conventionality control are those that apply to specific cases in favor
of a wide statement.13
Nevertheless, the IACtHR’s language leaves no doubt that conventionality
control must be applied in concrete terms and in relation to a clear and specific
set of norms and circumstances. These paragraphs indicate that: (1) the Inter-
American Court is aware that the goals of conventionality control are subject to
the rule of law and, therefore, obliged to apply the provisions in force in the do-
mestic legal system; and (2) when a State has ratified an international treaty such
as the American Convention, all government authorities are obligated to ensure
the effects of the Convention’s provisions are not undermined by the applica-
tion of laws contrary to its object and purpose. As such, conventionality control
requires not an abstract but a specific review of challenged domestic norms.
What is the purpose of control? We can additionally infer from the previ-
ously cases cited that the purpose of the conventionality control is to ensure that
domestic standards do not contradict the object and purpose of the American
Convention as interpreted by the Inter-American Court. It aims to achieve com-
patibility and consistency of domestic and inter-American standards. In the case
of Gomes Lund v. Brazil (2010), conventionality control required the IACtHR
“to assess the alleged non-compatibility of [a domestic] law with Brazil’s inter-
national obligations under the American Convention.”14 Similarly, in the case of
Atala Riffo v. Chile (2012), the Inter-American Court expanded on the formula-
tion of conventionality control in Radilla Pacheco v. Mexico by stating that “based
on the treaty control mechanism, legal and administrative interpretations, and
proper judicial guarantees should be applied under the principles established
in the jurisprudence of this Court in the present case.”15 The cases of López
Mendoza v. Venezuela (2011)16 and Furlan v. Argentina (2012)17 include sim-
ilar language. At the same time, the Inter-American Court decided in the case
of Andrade Salmón v. Bolivia (2016) that this category of control requires that
inconsistencies be resolved.18
There are two possible ways to comply with the doctrine of conventionality
control. First, domestic actors, primarily judges, can interpret the domestic
13 This sentence indicates that the conventionality control must be exercised between the
controlled object and the control parameter, leaving behind the mention that such controlled norms
are those that “apply in specific cases.” Radilla Pachecho v. Mexico, provision 339.
14 Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brasil, provision 49.
15 Atala Riffo and Daughters v. Chile, provision 284.
16 López Mendoza v. Venezuela, provision 228.
17 Furlan and family v. Argentina, provision 303.
18 According to the Court, “recent jurisprudence has recognized that all authorities of a State Party
to the Convention must exercise ‘conventionality control’ in such a way that the interpretation and
application of domestic law are consistent with the State’s international human rights obligations.”
Andrade Salmón v. Bolivia, provision 93.
standards applicable to the specific case in accordance with the relevant inter-
American standards. Constitutional provisions establishing that the domestic
law must conform to international declarations and treaties facilitate this method
of compliance. Following this method, conventionality control does not result in
the invalidation of domestic law but in a specific interpretation of domestic law
consistent with inter-American standards. Second, when it is not possible con-
ciliation between the interpretation of domestic standards with inter-American
standards, conventionality control requires that the domestic standard be
invalidated. The inter-American standard could even directly preempt domestic
standard if a State’s constitution attributes supra-legal hierarchy to international
human rights norms. However, a legal or supra-legal hierarchy is not enough
when the internal standard is based on constitutional provisions.
As for the targets of conventionality control, the jurisprudence of the Inter-
American Court has gradually expanded to encompass all State authorities. At
first, the IACtHR focused on the judiciary or, more specifically, on judges.19 The
Court later expanded its analyses to include “the bodies linked to the admin-
istration of justice at all levels,” which encompasses not only the judiciary but
also other bodies such as the public prosecutor’s office.20 Eventually, the Inter-
American Court clarified that every entity and authority is obligated to exercise
conventionality control.21
19 The following judgments referred to the judicial branch, or to each judge or judicial authority,
as obligated to carry out conventionality control: (1) CIDH, Almonacid Arellano y otros v. Chile, 26
de September de 2006, provision 124; (2) The Dismissed Congressional Employees (Aguado-Alfaro
et al.) v. Peru, provision 128; (3) La Cantuta v. Peru, provision 173; (4) Boyce y otros v. Barbados, pro-
vision 78; (5) Heliodoro Portugal v. Panamá, provision 180; (6) Radilla Pachecho v. Mexico, provision
339; (7) Comunidad Indígena Xákmok Kásek v. Paraguay, provision 311; (8) Fernández Ortega y otros
v. Mexico, provision 236; (9) Rosendo Cantú y otros v. Mexico, provision 219; (10) Ibsen Cárdenas e
Ibsen Peña v. Bolivia, provision 202; (11) Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brasil, provi-
sion 176; (12) Cabrera García and Montiel Flores v. México, provisions 225 a 232; (13) Norín Catrimán
et al. (leaders, members and activist of the mapuche indigenous people) v. Chile, Merits, reparations,
and costs (May 29, 2014), provision 464.
20 This was expressed in the following judgments: (1) Cabrera García and Montiel Flores
v. México, provisions 225 a 232; (2) Chocrón Chocrón v. Venezuela, provision 164; (3) López Mendoza
v. Venezuela, provision 226; (4) Fontevecchia and D’Amico v. Argentina, provision 93; (5) Atala Riffo
and daughters v. Chile, provisions 282 a 284; (6) Furlan and family v. Argentina, provision 303 and 304;
(7) The Río Negro Massacres v. Guatemala, provision 262; (8) Gudiel Álvarez et al. (“diario militar”)
v. Guatemala, provision 330; (9) The Santo Domingo Massacre v. Colombia, provision 142; (10)
Mendoza et al. v. Argentina, provision 221; (11) J. v. Peru, provision 407; (12) Expelled dominicans
and haitians v. República Dominicana, provision 311; (13) López Lone et al. v. Honduras, provision
307; (14) The Punta Piedra Garifuna Community and its members v. Honduras, provision 346; (15)
Chinchilla Sandoval v. Guatemala, provision 242; (16) Members of the Chichupac Village and neigh-
boring communities of the Municipality of Rabinal v. Guatemala, provision 289.
21 Gelman v. Uruguay, provision 239; (2) The Massacres of El Mozote and nearby places v. El
Salvador, provision 318; (3) Expelled dominicans and haitians v. República Dominicana, provision
311; (4) Rochac Hernández et al. v. El Salvador, provision 213; (5) Liakat Ali Alibux v. Surinam, pro-
vision 151; (6) García Ibarra et al. v. Ecuador, Preliminary objections, merits, reparations, and costs,
Judgment of the Inter-American Court of Human Rights (November 17, 2015), provision 306;
(7) The Hacienda Brasil Verde Workers v. Brazil, provision 408; and (8) Andrade Salmón v. Bolivia,
provision 93.
The Inter-American Court is aware that, in some States, courts beyond the
constitutional court do not have the power to invalidate or to decline to enforce
a domestic law in the event of a conflict between domestic and inter-American
standards. The IACtHR responded to this situation, in the case of The Dismissed
Congressional Employees v. Peru (2006), by clarifying that the judiciary must
carry out the control of conventionality “ex officio [. . . and] in the context of
their respective spheres of competence and the corresponding procedural
regulations.”22 It follows that in States in which a constitutional court has the sole
power of judicial review, the other courts are still obligated to interpret the do-
mestic law in accordance with inter-American standards where feasible, but do
not have the power, and thus do not have the duty, to invalidate or decline to en-
force domestic law when such an interpretation is impossible.
4. The Difference between Adjudication and Execution

in Conventionality Control
In 2012, in the case of Apitz Barbera v. Venezuela, the Inter-American Court

used the same definition of conventionality control as in previous cases, stating
that “judges and organs involved in the administration of justice at all levels are
obliged to exercise ex officio a control of the conformity of domestic laws with the
American Convention, within their respective terms of reference and the corre-
sponding procedural regulations. In this task, the judges and organs involved in
the administration of justice should consider not only the treaty but also its inter-
pretation by the Inter-American Court, the ultimate interpreter of the American
Convention.”23 The Court added that conventionality control is “a mechanism by
which the judicial organs can prevent potential human rights violations.”24
In the same paragraph, the Inter-American Court also indicated that conven-
tionality control may play a role in the implementation of an inter-American
judgment that establishes the international responsibility of a State:
[T]‌this “control of conformity with the Convention” also plays an impor-

tant role in compliance with or implementation of a specific judgment of the
Inter-American Court, especially when a judicial organ is responsible for this
22 The Dismissed Congressional Employees (Aguado-Alfaro et al.) v. Peru, provision 128.

23 Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela [2012], Oversight
of Judgment Compliance, Resolution of the Inter-American Court of Human Rights, provision 26.
In 2013, in the case of Anzualdo v. Peru, the Inter-American Court reaffirmed, without additional
explanation, that conventionality control would have “an important role in the compliance or imple-
mentation of a judgment of the Inter-American Court.” Anzualdo Castro v. Peru [2013], Oversight of
Judgment Compliance, Resolution of the Inter-American Court of Human Rights, provision 24.
24 Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, provision 26.
compliance. In this situation, the judicial organ has the function of ensuring
that the American Convention and the rulings of this Court prevail over do-
mestic laws that obstruct compliance with the provisions in any specific case.25
This provision outlines internal control of conventionality, emphasizing its

complementary and preventive role to external control, which aims to avoid
human rights violations. Although it did not expressly state that these are dif-
ferent categories of conventionality control, the Court did suggest that dif-
ferent actors are responsible for implementation and the purposes for doing this
differentiation.
Internal conventionality control thus consists of an assessment of compati-
bility between domestic regulations and the inter-American corpus juris, which
is carried out by judges and organs linked to the administration of justice at all
levels. The emergence of internal/diffuse conventionality control complicates
domestic adjudication, which already involves the consideration of all domestic
law, by requiring that the inter-American corpus iuris prevails in cases of incom-
patibility. External/concentrated conventionality control, on the other hand, is
the assessment of compatibility carried out by the Inter-American Court.
The criterion for distinguishing between internal and external control, and
between diffuse and concentrated control, is thus the authority that carries out
conventionality control: judges and bodies involved in the administration of
justice at all levels and the Inter-American Court, respectively. Regardless, ac-
cording to the IACtHR, in all cases, State authorities have an obligation of con-
ventionality control. They must identify domestic laws that contravene the
inter-American corpus juris and to invalidate or decline to enforce those laws.
We should also clarify that the function of the Inter-American Court is to deter-
mine whether the State has violated its obligations under international law. The
IACtHR can find that domestic law if at issue, violates the American Convention,
but it cannot directly invalidate that domestic law, nor can it assess the validity
of domestic laws that are not involved in a specific proceeding before the Court.
In the case of internal control, the domestic tribunal that analyses the case
may, according to its competencies, invalidate or decline to enforce an incompat-
ible domestic law or provide an interpretation of the law compatible with inter-
American standards following the concept of concentrated or diffuse control. In
these cases, the adjudication has an immediate impact on domestic law because
domestic courts have the power to know, judge, and enforce judgments. In cases
of external conventionality control, on the other hand, the Inter-American Court
lacks these powers. Although in several cases it issued sentences that resolved the
25 Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, provision 26.
unconventionality of the internal law, the IACtHR is not empowered to enforce

its judgment directly by invalidating or declining to apply domestic law26.
Compliance with IACtHR decisions depends on the cooperation of State
entities, especially courts. The judgments on monitoring compliance demon-
strate this. For example, when the Inter-American Court questions that the State
has not introduced the legal reforms ordered by it or that the legal modifications
ordered were carried out, at least partially, thus complying with the ruling. In
both cases, the action of State bodies is necessary for the sentence to take effect
in the condemned State. If the external conventionality control could directly in-
validate, invalidate, modify, or repeal norms incompatible with the criteria of the
Inter-American Court, the internal conventionality control would lack reason
and the monitoring of compliance would not make sense either.
As part of the Inter-American Court’s monitoring compliance with judgments,
State parties are required to inform domestic judges about the international pro-
ceedings. Judges, in turn, are expected to comply with and enforce the IACtHR
ruling by ensuring that the American Convention and inter-American juris-
prudence prevail over domestic law when the latter is invoked as an excuse for
noncompliance with the judgment the Inter-American Court issued against
the State.
5. The Role of Res Judicata and Res Interpretata
Conventionality control is a complex doctrine, which describes a variety of

different phenomena. Conventionality control can be internal and external,
depending on whether it is exercised by a domestic or international actor.
Conventionality control serves several purposes, from sanctioning violations of
human rights and ensuring the implementation of inter-American judgments to
preventing human rights violations and thus eliminating the need for interna-
tional adjudication.
26 Just as an example, some authors such as Max Silva Abbott maintain: “Whatever the action that
the Court orders the condemned State to be, the unconventional norm incompatible with its criteria
continues to exist while these bodies do not act.” Max Silva Abbot, “¿Qué efectos produce el control
de convencionalidad decretado por la Corte Interamericana en un ordenamiento jurídico?” [2020]
18(2) Estudios Constitucionales 272.
Hitters affirms: “This means that from this aspect the inter-American decision does not mean an
automatic abrogation of the local precept, since it is the country that must comply with the regional
pronouncement.” Juan Carlos Hitters, “Control de constitucionalidad y control de convencionalidad.
Comparación (Criterios fijados por la Corte Interamericana de Derechos Humanos)” [2009] 7(2)
Estudios Constitucionales 123.
Juan Ibañez explains: “Despite the declaration of unconventionality made by the Court, the in-
ternal norm continues to exist, therefore, that unconventionality also continues to apply.” Juana
Ibáñez, Control de convencionalidad (México, Instituto de Investigaciones Jurídicas UNAM/
Comisión Nacional de los Derechos Humanos 2017).
For example, in the monitoring of compliance with the judgment deci-

sion issued by the Inter-American Court in 2013 regarding the case of Gelman
v. Uruguay, the IACtHR expressly introduces implementation as a compo-
nent or phase of conventionality control. The context behind this monitoring
compliance with judgment decision is the Supreme Court of Uruguay’s having
presented an obstacle to full compliance with the judgment in the case of Gelman
v. Uruguay. In this decision, the Inter-American Court introduced the element
of “enforcing judgments” as the final stage of conventionality control (the other
elements being “knowing” and “judging,” as discussed in the previous section).
First, the Inter-American Court states in this decision that it has, “in several
judgments,” developed the concept of conventionality control, which it describes
as the obligation of State authorities “to exercise ex officio a ‘control of conven-
tionality’ between domestic standards and the American Convention, within
the framework of their respective spheres of competence and the corresponding
procedural rules. Both the treaty and its interpretation by the Inter-American
Court, the ultimate authority on the American Convention, must be considered
in this task.”
The IACtHR then refers to different categories of conventionality control,
which differ depending on whether the State was a party to the proceedings.
When the State was a party to the proceedings, the judgment has the character of
res judicata as well as res interpretata with respect to that State.27 When the State
was not a party to proceedings, but is a party to the American Convention, the
judgment does not have the character of res judicata but does have the character
of res interpretata.28
According to the Inter-American Court, a State must comply with and strictly
apply judgments that have the character of res judicata with respect to that State.
The IACtHR explains res judicata in the case of Gelman v. Uruguay as “simply a
matter of using it [conventionality control] to comply in its entirety and in good
faith with what the Court ordered in the judgment it issued in the specific case.”29
This illustrates that the effects of res judicata operate only between parties. But
the effects of res interpretata are erga omnes, which means they affect all parties.
27 Gelman v. Uruguay [2013], Oversight of Judgment Compliance, Resolution of the Inter-
American Court of Human Rights, provision 68.

28 Gelman v. Uruguay, provision 69.
29 Gelman v. Uruguay, provision 68; see also Juana Ibáñez, Manual auto- formativo para la
aplicación del control de convencionalidad dirigido a operadores de justicia (Instituto Interamericano
de Derechos Humanos 2015); Eduardo Ferrer Mac-Gregor, “Eficacia de la sentencia interamericana
y la cosa juzgada internacional: vinculación directa hacia las partes (res judicata) e indirecta hacia
los Estados Parte de la Convención Americana (res interpretata) (Sobre el cumplimiento del Caso
Gelman v. Uruguay)” [2013] 11 Estudios Constitucionales; Sofía Sagüés, “Diálogo jurisprudencial y
control de convencionalidad a la luz de la experiencia en el caso argentino,” in Miriam Henríquez
Viñas and Mariela Morales Antoniazzi (coords.), El control de convencionalidad: Un balance
comparado a 10 años de Almonacid Arellano V. Chile (DER Ediciones 2017).
The IACtHR’s decision also reiterates the elements of conventionality control

that appear in the judgments of contentious cases, reaffirming that it concerns
the compatibility of domestic regulations with the inter-American corpus juris:
[A]‌ll public authorities and all the organs [of the State], including democratic
bodies, judges, and other organs involved in the administration of justice at all
levels, are bound by the treaty, which obliges them to exercise control of con-
ventionality, within the framework of their respective spheres of competence
and the corresponding procedural rules, both in the enactment and enforce-
ment of laws, as regards their validity and compatibility with the Convention,
and in fact-finding, trying, and deciding particular situations and specific
cases, bearing in mind the treaty itself and, as appropriate, the precedents or
lines of the jurisprudence of the Inter-American Court.30
In the same ruling, the Inter-American Court repeated its statement from
the case of Apitz Barbera v. Venezuela, namely, that conventionality control first
arises in the context of the implementation of a given IACtHR judgment and “is
the responsibility of domestic judges.” The Inter-American Court also explained
that conventionality control means that “the judicial body functions so as to up-
hold the American Convention and the rulings of this Court, over and above do-
mestic regulations, interpretations, and practices that impede compliance with
its decision in a specific case.”31
A couple of months later, in its monitoring compliance with the judgment
decision in the case of the Ituango Massacres v. Colombia, the Inter-American
Court reiterated the statements it had made in the case of Gelman v. Uruguay.32
The Court differentiated the two categories of conventionality control, with an
emphasis on the doctrine’s effects, and noted that their differences depend on
whether the State was a party to the proceedings. The decision then defined the
first category and once again highlighted its effects:
Thus, when an international judgment has been delivered that constitutes res
judicata with regard to a State that has been a party to the case submitted to the
Court’s jurisdiction, all its bodies, including its judges and the organs concerned
with the administration of justice, are also subject to the treaty and this Court’s
judgment, which obliges them to ensure that the effects of the provisions of
the Convention and, consequently, the decisions of the Inter-American Court
are not adversely affected by the application of norms contrary to their object
30Gelman v. Uruguay, provision 69.

31Gelman v. Uruguay, provision 73.
32 Ituangó Massacres v. Colombia [2013], Oversight of Judgment, Resolution of the Inter-American
Court of Human Rights, provisions 29 and 30.

and purpose or by judicial or administrative decisions that make total or partial

compliance with the judgment illusory. In other words, in this case, an interna-
tional res judicata exists based on which the State is obliged to comply with and
execute the judgment.
The IACtHR then added:
As a result of the legal force of the American Convention in all the States Parties
to it, dynamic and complementary control of conformity with the Convention
also plays an important role in compliance with or execution of specific
judgments of the Inter-American Court, especially when this execution is the
responsibility of the national judges. In this case, the function of the judicial
organ is to ensure the prevalence of the American Convention and the rulings
of this Court over domestic laws, interpretations, and practices that prevent
compliance with what the Court has ordered in a specific case.
This judgment referred once again to res judicata conventionality control,

within the scope of the implementation of the international judgment, addressed
to the judges, requiring them to comply with and respect the decision or, in other
words, to execute the judgment. In this context, the IACtHR reiterated that the
judicial body must ensure that the American Convention and its jurisprudence
prevail over internal obstacles that prevent compliance with the ruling against
the State.
In 2014, in monitoring compliance with the judgment decision in the case
of Gomes Lund v. Brazil,33 the Inter-American Court repeated its position from
previous judgments:
The Court insists on the obligation of domestic judges and courts to carry out
a control of conventionality, especially when there is international res judicata,
since judges and courts have an important role in the fulfilment or implementa-
tion of the judgment of the Inter-American Court. The judicial body functions
so as to uphold the American Convention and the rulings of this Court, over
and above domestic regulations, interpretations, and practices that impede
compliance with its decision in a specific case.
Thus, in the case of Gomes Lund v. Brazil, the Inter-American Court reaffirmed
its jurisprudence on conventionality control in the face of a series of domestic
33 Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil [2014], Oversight of Judgment, Resolution
of the Inter-American Court of Human Rights, provision 19.

judicial decisions that ignored an IACtHR decision, despite its character of inter-
national res judicata, as well as international human rights law in general.
Additionally, in its 2014 monitoring compliance with judgment decisions in
the cases of the Rio Negro Massacres and Gudiel Álvarez et al. v. Guatemala,34
the Inter-American Court refers to the international and binding nature of
its decisions in contentious cases. It also stated: “[I]‌t is contrary to the treaty
obligations of the State of Guatemala for domestic entities to question the binding
nature of the Court’s decisions.” In the face of the State of Guatemala’s open defi-
ance of both judgments, the Inter-American Court, referring to the monitoring
compliance with judgment decisions in the case of Gelman v. Uruguay, stated
that “[c]onventionality control an institution that functions as a tool for the ap-
plication of international law.” The IACtHR also reiterated that “when there is
international res judicata, ‘conventionality control’ has an important role in the
fulfilment or implementation of the judgment of the Inter-American Court, es-
pecially when such compliance is entrusted to national judges.”35
In 2017, in monitoring compliance with judgment decision in the case of
Fontevecchia v. Argentina,36 the Inter-American Court discussed the close link
between the mandatory nature of IACtHR judgments and conventionality con-
trol in the context of the implementation of these judgments, as well as how this
link enabled the Supreme Court of Argentina to invalidate the decisions not
only of lower courts but also of the Supreme Court itself. The Inter-American
Court said:
The position assumed on this occasion by the Supreme Court of Justice of the
Nation, which questioned the obligatory nature of the judgments of the Inter-
American Court under certain circumstances differs greatly from its previous
line of jurisprudence, which this Court had highlighted it as a positive ex-
ample as regards the acknowledgment that highest courts in the region have
given of the binding nature of the judgments of the Inter-American Court and
the application of conventionality control, taking into account the IACtHR’s
interpretations. This jurisprudence of the Supreme Court of Justice of the
Nation also recognized the important role that the highest domestic court in
Argentina has, within the scope of its competence, in the fulfilment or imple-
mentation of the judgments of the Inter-American Court.
34 Rio Negro Massacre and Gudiel Álvarez et al. v. Guatemala [2014], Oversight of Compliance
with Judgment, Resolution of the Inter-American Court of Human Rights.

35 The Río Negro Massacres v. Guatemala, provision 16.
36 Fontevecchia and D’Amico v. Argentina [2017], Oversight of Compliance with Judgment,
Resolution of the Inter-American Court of Human Rights, provision 25.

More recently, the Inter-American Court has articulated a definition of con-

ventionality control informed by its judgments discussing res interpretata and
res judicata. In the monitoring compliance with judgment decision in the case
of Barrios Altos v. Peru (2018),37 the Inter-American Court mentioned both res
interpretata and res judicata and reiterated the definition of conventionality con-
trol, quoting its monitoring compliance with judgment decision in the case of
Gelman v. Uruguay:
[T]‌his Court has indicated that, with respect to the implementation of a partic-
ular judgment of the Inter-American Court, “the function of the judicial organ
is to ensure the prevalence of the American Convention and the rulings of this
Court over domestic laws, interpretations, and practices that prevent compli-
ance with what the Court has ordered in a specific case.”
The two categories of conventionality control considered by the Inter-

American Court point to separate moments. On the one hand, the internal and
diffuse conventionality control coincides with the res interpretata and erga omnes
aspects of IACtHR decisions. On the other hand, the control as monitoring com-
pliance coincides with the res judicata and inter-partes aspects of these decisions.
6. Conclusion
Conventionality control is a complex doctrine, which contains a variety of dif-

ferent phenomena. In this chapter, we tried to prove that the praetorian devel-
opment of conventionality control by the Inter-American Court involves the
essential elements of the judicial function—to know, to judge, and to enforce
judgments—thereby providing the doctrinal basis for impact on the ground.
The first sub-hypothesis of this chapter indicated that the external and con-
centrated control and the internal control of conventionality complement each
other when examining the compatibility between the internal acts and the inter-
American corpus juris.
The second sub- hypothesis states that conventionality control also
constitutes res judicata, because an IACtHR judgment will later be executed
by the competent domestic institutions, while the Court monitors their com-
pliance. In this sense, we infer that conventionality control as res judicata
relates to the third element of the judicial function, enforcing judgments. The
Inter-American Court seeks to ensure through monitoring compliance with
37 Barrios Altos Case and La Cantuta v. Peru [2018], Oversight of Judgment Compliance,
Resolution of the Inter-American Court of Human Rights, provision 65.

judgment decisions that State entities, mainly courts, implement specific

IACtHR orders.
And the third sub-hypothesis stated that internal conventionality control
coincides with diffuse control and applies res interpretata, as well as complements
and prevents external control.
According to those sub-hypotheses, we conclude both the Inter-American
Court and domestic courts know and judge in a specific case by examining the
compatibility between domestic law and the inter-American corpus juris. Here,
internal and diffuse conventionality control requires the application of inter-
American standards as res interpretata. This is complementary and preventive to
external control: it prevents human rights violations.
The two categories of conventionality control considered by the Inter-
American Court point to separate moments: the internal and diffuse conven-
tionality control coincides with the res interpretata and erga omnes aspects of
IACtHR decisions, and the control as monitoring compliance coincides with the
res judicata and inter-partes aspects of these decisions.
Finally, analyzing conventionality control in the framework we have provided
also enables us to observe where this doctrine has had an effect. We can demon-
strate with greater accuracy the impact that inter-American jurisprudence has
on domestic legal systems. Thus understood, conventionality control increases
the relevance of domestic actors in the protection of human rights.
I.7
Effectiveness of International Courts
From Compliance to Transformative Impact
By Gabriela C.B. Navarro
1. Introduction
In 2007, the Inter-American Court of Human Rights (Inter-American Court, or

IACtHR) decided the case of Saramaka v. Suriname. This was the first time that
an international tribunal recognized the right to free, prior, and informed con-
sent for the extraction of natural resources in indigenous and tribal peoples’ ter-
ritories. The Saramaka, a tribal community, brought the case against Suriname as
part of their fight against the devastating deforestation of their lands by a mining
company. The result was a groundbreaking decision on environmental conserva-
tion and recognition of indigenous and tribal peoples’ rights. It was recognized
worldwide as a landmark case and by the victims as a crucial symbolic victory.
The State, however, has taken few steps toward compliance. On the contrary,
mining activities and their destructive effects have increased in Suriname’s tribal
lands. How can the impact of this paradigmatic case be assessed and explained?
What is the relationship among compliance, impact, authority, and effectiveness
in the implementation of this decision?
Saramaka v. Suriname is not an unusual case in this regard, but rather illustrates
the varied impacts of international litigation, which extend beyond compliance
with measures of reparation. Although most significant in Latin America and
the Caribbean, the transformation of the role of international courts is occurring
globally. This trend has generated an intense academic debate on the functions
of international courts and how to assess these courts’ effectiveness. This chapter
reviews the literature on the effectiveness of international courts and, in doing
so, demonstrates how scholars have conceptualized the relationship between in-
ternational litigation and changes in the domestic sphere. The chapter focuses
on the Inter-American Human Rights System (Inter-American System, or
IAHRS), particularly on the peculiarities of the Inter-American Court of Human
Rights (Inter-American Court, or IACtHR) and how such peculiarities affect
evaluations of its effectiveness. The chapter provides illustrative examples of its
Gabriela C.B. Navarro, Effectiveness of International Courts In: The Impact of the Inter-American Human Rights System.
Oxford University Press. © Gabriela C.B. Navarro 2024. DOI: 10.1093/oso/9780197744161.003.0008
Effectiveness of International Courts 139
broader points in its analyses the effectiveness of the IACtHR in the recognition
of indigenous territorial rights.
The chapter is divided in three sections. The first section describes the theoret-
ical approaches that equate effectiveness and compliance. It also provides a brief
overview of studies concerning compliance with the IACtHR. The second sec-
tion analyzes theoretical frameworks that expand the concept of effectiveness to
include other forms of impact beyond compliance. It discusses theories specific
to the impact and effectiveness of the IAHRS. The third section illustrates the
different conceptions of effectiveness with IACtHR cases concerning Indigenous
territorial rights. The chapter concludes by emphasizing the importance of
studies about the transformative impact of international courts.
2. Effectiveness as Compliance
2.1. Defining and Measuring Compliance
One of the first studies regarding the effectiveness of international courts was
published by Laurence R. Helfer and Anne-Marie Slaughter in 1997. Helfer and
Slaughter defined effectiveness as a tribunal’s “ability to compel compliance with
its judgments by convincing domestic government institutions, directly and
through pressure from private litigants, to use their power on its behalf.”1 In an at-
tempt to understand why the European Court of Justice and the European Court
of Human Rights were effective courts, the authors compiled a list of factors that
influenced effectiveness. Later, in 2005, the authors clarified that their concept
of effectiveness was closer to being relative than to being absolute.2 In the same
year, Eric Posner and John Yoo published an article in which they treated com-
pliance as the primary measure for effectiveness, although they clarified that this
measure should be complemented by assessments of the level of usage of the tri-
bunal and success of the respective treaty regime. Overall, Posner and Yoo were
skeptical of the ability of international courts to foment transformative change,
describing them instead as mere problem-solving devices.3
In 2017, Helfer revisited the relationship between compliance and effective-
ness with co-author Karen J. Alter. Alter and Helfer argued that, while both
compliance and effectiveness involve conformity between State behavior and
1 Laurence R. Helfer and Anne-Marie Slaughter, “Toward a Theory of Effective Supranational
Adjudication” [1997] 107 Yale Law Journal 273.

2 Laurence R. Helfer and Anne-Marie Slaughter, “Why States Create International Tribunals: A
Response to Professors Posner and Yoo” [2005] 93 California Law Review 899.
3 Eric Posner and John Yoo, “Judicial Independence in International Tribunals” [2005] 93
California Law Review 1.

140 Gabriela C.B. Navarro
a specified legal rule, only effectiveness involves desired changes in behavior

that are attributable to that rule. In cases of compulsory jurisdiction, however,
effectiveness could be fully captured by State compliance because there would
be no meaningful difference between the two. Alter and Helfer also proposed
recognizing effects beyond compliance and, while analyzing the Court of Justice
of the Andean Community, pointed out the following effects: strengthened rule
of law, opposition to corruption, and impacts on States that were not parties.4
Measuring compliance is, undoubtedly, fundamental to evaluating effective-
ness. Understanding the time it takes for States to comply, the extent to which
they comply and their reasons for compliance are central to assessing judi-
cial power and patterns of judicial politics.5 Compliance is also a central con-
cern for victims because, to reach compliance, States must redress past human
rights violations and guarantee their nonrepetition.6 A recent study, however,
suggested that IAHRS stakeholders should focus on implementation instead
of compliance because measuring compliance fails to “capture the complexities
of the necessary time, procedures and actors that may need to be involved in
implementing a decision.”7 Compliance merely means the State’s law and prac-
tice meet the requirements of a judgment. Implementation denotes the process
by which domestic actors acknowledge, incorporate, and take ownership over
the judgment.
The distinction between compliance and effectiveness is blurred when a tri-
bunal orders reparations that affect an entire society, such as nonrepetition meas-
ures. Even for these measures, however, merely determining whether compliance
exists could not explain all issues related to a judgment’s effectiveness, such as
a State’s delayed compliance or partial compliance and the court’s reasons for
ordering those measures.8 Compliance also does not capture the varied and in-
novative strategies courts have adopted, including promoting dialogue with State
actors, civil society, and victims. Focusing exclusively on compliance disregards
this complex network and its effects on domestic politics. International courts’
functions should not be reduced to problem-solving, especially not the IACtHR,
4 Karen J. Alter and Laurence R. Helfer, Transplanting International Courts: The Law and Politics
of the Andean Tribunal of Justice (Oxford University Press 2017); see also Kal Raustiala, “Compliance
& Effectiveness in International Regulatory Cooperation” [2000] 32 Case Western Reserve Journal of
5 Diana Kapiszewski and Matthew M Taylor, “Compliance: Conceptualizing, Measuring, and
Explaining Adherence to Judicial Rulings” [2013] 38 Law & Social Inquiry 803, 829–830.
6 Carlos Martín Beristaín, Diálogos sobre la Reparación: qué Reparar en los Casos de Violaciones de
Derechos Humanos (Instituto Interamericano de Derechos Humanos 2009).

7 Rachel Murray, “Addressing the Implementation Crisis: Securing Reparation and Righting
Wrongs” [2020] 21 Journal of Human Rights Practice 1, 10.

8 Shai Dothan, “International Adjudication as Governance,” in Helene R. Fabri (ed.), Max Planck
Encyclopedia of International Procedural Law (Max Planck Institute Luxembourg for Procedural
Law 2019).
whose nonrepetition reparation measures expand the reach of its judgments be-
yond the parties.
2.2. Evaluating Compliance with IACtHR Decisions
Many scholars have published quantitative analyses of compliance with IACtHR

decisions, most of which concern all of the Inter-American Court’s jurispru-
dence,9 but some of which focus on specific countries10 or specific measures.11
Other studies have researched the factors that influence the extent to which
States comply, suggested strategies for increasing compliance,12 and analyzed the
actors involved in reaching compliance, from civil society to State institutions.13
Several studies analyze compliance with accountability and nonrepetition meas-
ures in the context of transitional justice.14 There are, however, no studies that
9 Darren Hawkins and Wade Jacoby, “Partial Compliance: A Comparison of the European and
Inter-American American Courts for Human Rights” [2010] 6 Journal of International Law and
International Relations 35; Fernando Basch et al., “The Effectiveness of the Inter-American System
of Human Rights Protection: a Quantitative Approach to its Functioning and Compliance with its
Decisions” [2010] 7 SUR 9; Cecilia M Bailliet, “Measuring Compliance with the InterAmerican
Court of Human Rights: The Ongoing Challenge of Judicial Independence in Latin America” [2013]
31 Nordic Journal of Human Rights 477; Courtney Hillebrecht, Domestic Politics and International
Human Rights Tribunals: the Problem of Compliance (Cambridge University Press 2014); Damián
González-Salzberg, “The Effectiveness of the Inter-American Human Rights System: A Study of the
American States’ Compliance with the Judgments of the Inter-American Court of Human Rights”
[2010] 16 Revista Colombiana Derecho Internacional 115; Aníbal Pérez Liñán, Luis Schenoni, and
Kelly Morrison, “Time and Compliance with International Rulings: The Case of the Inter-American
Court of Human Rights” [2019] SSRN Electronic Journal.
10 Sergio Anzola, Beatriz Eugenia Sánchez, and Rene Urueña, “Después del Fallo: El Cumprimento
de las Decisiones del Sistema Interamericano de Derechos Humanos. Una Propuesta de

Metodología,” in Laurence Burgorgue-Larsen (ed.), Derechos Humanos y Políticas Públicas: Manual
(Universidad Pompeu Fabra 2014); Damián González-Salzberg, “A Implementação das Sentenças da
Corte Interamericana de Direitos Humanos na Argentina: uma Análise do Vaivém Jurisprudencial
da Corte Suprema de Justiça da Nação” [2011] 8 SUR 115.
11 Alexandra Huneeus, “Courts Resisting Courts: Lessons From the Inter- American Court’s
Struggle to Enforce Human Rights” [2011] 44 Cornell International Law Journal 493; María C
Londoño-Lázaro, Las Garantías de no Repetición en la Jurisprudencia Interamericana: Derecho
Internacional y Cambios Estructurales del Estado (Tirant lo Blanch México 2014).
12 Viviana Krsticevic and Liliana Tojo (eds.), Implementación de las Decisiones del Sistema
Interamericano de Derechos Humanos: Jurisprudencia, Normativa y Experiencias Nacionales (CEJIL

2007); James L. Cavallaro and Stephanie E. Brewer, “O Papel da Litigância para a Justiça Social no
Sistema Interamericano” [2008] 5 SUR—International Journal on Human Rights 84; Jeffrey K. Staton
and Alexia Romero, “Rational Remedies: The Role of Opinion Clarity in the Inter-American Human
Rights System” [2019] International Studies Quarterly 1.
13 James L. Cavallaro and Stephanie E. Brewer, “Reevaluating Regional Human Rights Litigation
in the Twenty-First Century: The Case of the Inter-American Court” [2008] 102 American Journal of
International Law 768; Huneeus (n. 11); Hillebrecht (n. 9).
14 Kathryn Sikkink and Carrie B. Walling, “The Impact of Human Rights Trials in Latin America”
[2007] 44 Journal of Peace Research 427; Bruno B. Bernardi, “O Sistema Interamericano de Direitos
Humanos e o Caso da Guerrilha do Araguaia: Impactos no Brasil” [2017] 22 Revista Brasileira de
Ciência Política 49; Elin Skaar, “Wavering Courts: From Impunity to Accountability in Uruguay”
[2013] 45 Journal of Latin American Studies 483.
analyze compliance with one set of rights, with exception of my recent article
on indigenous territorial rights.15 There are also very few studies analyzing the
amount of time it takes to achieve full compliance, even though delayed compli-
ance is common among Latin American countries.16
Quantitative research on compliance with the IACtHR has adopted the
Court’s classification system for measures and cases. The Inter-American Court
supervises its own decisions, a task that has become more and more demanding
as the number of cases the IACtHR has decided grow. When this chapter was
written, the Court was monitoring compliance with 223 of its judgments. For
comparison, only 43 cases before the IACtHR are pending final judgment. In
2019, the Court issued 51 supervision orders and 21 merits decisions in conten-
tious cases, as well as held 18 hearings in contentious cases and 16 for monitoring
compliance.17 Monitoring compliance is thus an important and time-consuming
aspect of the Inter-American Court’s work. Even though American Convention
of Human Rights (American Convention, or ACHR) Article 68(1) provides that
States are obligated to comply with final judgments issued by the IACtHR, it does
not establish procedures for monitoring compliance. Monitoring compliance is
instead regulated by the Inter-American Court’s Rules of Procedure.18 It mainly
involves reports presented by the State, observations from the victims and their
representatives, and observations from the Inter-American Commission on
Human Rights (Inter-American Commission, or IACHR). The Inter-American
Court reviews these materials and then determines that the State either has or
has not complied with its measures, or else that the State has partially complied
with the measures, although the criteria for partial compliance are not always
clear.19 The IACtHR has found partial compliance, for example, when a State
paid a portion of the required compensation20 and when a State published the
judgment via one of the ordered outlets, but not in any of the others.21 When
a State complied with a measure after some delay, the Inter-American Court
classifies this as compliance, without a separate distinction or category to reflect
15 Gabriela C.B. Navarro, “The Struggle after the Victory: Non-compliance in the Inter-American
Court of Human Rights’ Jurisprudence on Indigenous Territorial Rights” [2021] 12 Journal of

International Dispute Settlement 223.
16 Pérez Liñán, Schenoni, and Morrison (n. 9).
17 IACtHR, Annual Report 2019 (2020).
18 A deeper analysis of the Inter-American Court’s jurisdiction as it relates to the supervision of
its own decisions can be found in Baena Ricardo y otros v. Panamá [2003] IACtHR, Ser. C No. 104.
See also Edward J. Perez, “La Supervisión del Cumplimiento de Sentencias por Parte de la Corte
Interamericana de Derechos Humanos y Algunos Aportes para Jurisdicciones Nacionales” [2018] 24
Anuario de Derecho Constitucional Latinoamericano 337.
19 For a critical perspective on the use of the category of partial compliance, see Courtney
Hillebrecht, “Rethinking Compliance: The Challenges and Prospects of Measuring Compliance with
International Human Rights Tribunals” [2009] 1 Journal of Human Rights Practice 362.
20 Yakye Axa Indigenous Community v. Paraguay [2019] IACtHR.
21 Yakye Axa, Sawhoyamaxa and Xákmok Kásek v. Paraguay [2017] IACtHR.
the time elapsed. Overall, cases can be classified as in a state of compliance (the
State has complied with all reparation measures), partial compliance (the State
has complied with at least one reparation measure), or noncompliance (the State
has yet to comply with any reparation measure).
Compliance studies are essential because they reveal how States react to the
Inter-American Court’s orders, identifying factors that enable, slow, or even
impede compliance. This knowledge makes it possible to generate increased
compliance in future cases through designing measures with greater precision,
interacting with the most interested or most able domestic institutions, and
finding ways for the IACtHR to engage more actively behavior in monitoring
compliance. Compliance also matters for establishing the legitimacy and au-
thority of the Inter-American Court, since lack of compliance could be seen as
resistance to or even defiance against the Court. Nevertheless, evaluations of ef-
fectiveness should not be limited to assessments of compliance.
3. Impact beyond Compliance
3.1. Defining Impact and Effectiveness
Contemporary international relations involve a growing number of specialized

international courts around the world, including the establishment of courts
with new functions and means of access. The number of permanent interna-
tional tribunals increased from six in 1989 to two dozen in 2014.22 The growth
is not only in numbers but also in importance, as international adjudication has
increasingly influenced domestic politics on a wide range of issues, including
environmental protection, gender equality, and access to justice. Human rights
NGOs and movements have also increasingly pursued their agendas through
strategic litigation before international courts. International courts are no longer
viewed as mere resolvers of disputes and their expanded role enhances their
effectiveness.
In the paradigm-changing book “The New Terrain of International Law,”
Alter analyzes the impact of “new-style international courts” on domestic pol-
itics. Alter suggests that certain features of new-style courts (e.g., compulsory
jurisdiction and access by non-State litigators) facilitate the increased influ-
ence of international decisions on domestic politics. According to Alter, inter-
national courts have four functions: dispute settlement, administrative review,
22 Karen J. Alter, “The Multiplication of International Courts and Tribunals After the End of
the Cold War,” in Cesare Romano, Karen J. Alter, and Yuval Shani (eds.), The Oxford Handbook of
International Adjudication (Oxford University Press 2014).
constitutional review, and law enforcement. Alter also analyzes why some courts
are more effective than others, arguing that effective courts rely on a coalition of
compliance constituencies who support the rule of law.23
Yuval Shany, on the other hand, proposes that scholars adopt a goal-based
approach in which effectiveness is assessed against predefined objectives
contained in a court’s stated mission and/or asserted by its constituencies. This
approach is based on the normative assumption that international courts should
be constrained by the expectations of their constituencies, focusing on States.
Shany recognizes that the goals could have ambiguities and could change over
time. He also identifies four general goals courts may have (norm support, re-
solving disputes, regime support, and legitimizing public authority), but does
not clarify how to assess the idiosyncratic goals of international courts.24 Shany
also argues that analysis of a decision’s outcomes requires consideration of com-
pliance (effect on involved parties), the impact of jurisprudence (effect on the
wider public), docket size, acceptance of jurisdiction, available budget, and le-
gitimacy. These factors can, depending on the circumstances, indicate lower or
higher rates of effectiveness. Lastly, Shany proposes that the evaluation of effec-
tiveness be accompanied by a complementary assessment of cost-effectiveness
that analyzes the relationship between structural attributes and effectiveness.25
Another similar approach analyzes the effectiveness of international tribunals
by assessing their exercise of their functions. Armin von Bogdandy and Ingo
Venzke argue that international courts can exercise three functions in addition to
dispute settlement: asserting international law’s validity and its enforcement; de-
veloping norms that have implications beyond the case under analysis; and con-
trolling and affirming the legitimacy of domestic institutions.26 Similarly, José
E. Alvarez describes international courts as having four functions: dispute set-
tlement, fact-finding, lawmaking, and governance.27 For Bogdandy and Venzke,
the expansion of the international courts’ functions prompts a question relevant
to their legitimacy: In whose name do these courts act? Bogdandy and Venzke
suggest a need to move past the traditional, State-centered understanding of
23 Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton
University Press 2014).

24 Ibid.
25 Yuval Shany, Assessing the Effectiveness of International Courts (Oxford University Press 2016).
26 Armin von Bogdandy and Ingo Venzke, “In Whose Name? An Investigation of International
Courts’ Public Authority and its Democratic Justification” [2012] 23 European Journal of
International Law 7; Armin von Bogdandy and Ingo Venzke, “On the Functions of International
Courts: An Appraisal in Light of Their Burgeoning Public Authority” [2013] 26 Leiden Journal of
International Law 49; Armin von Bogdandy and Ingo Venzke, In Whose Name?: A Public Law Theory
of International Adjudication (Oxford University Press 2014).
27 José E Alvarez, “What Are International Judges for?: The Main Functions of International
Adjudication,” in Cesare Romano, Karen J. Alter, and Yuval Shani (eds.), The Oxford Handbook of
international courts’ legitimacy by viewing international courts as part of the in-

ternational community or a particular legal regime and not only as State-created
entities.28
Shai Dothan suggests that scholars analyze international courts in the con-
text of global governance, demonstrating the manner in which tribunals pro-
duce long-term effects in the global arena. Dothan introduces two alternate ways
of understanding the work of international courts: first, as existing in an inter-
national system of checks and balances, since an international decision rarely
results in immediate State compliance with the decision’s exact terms, instead
the constant friction among contending actors eventually generates the imple-
mentation of policies informed by the many, varied opportunities for dialogue
created by the international process; and, second, as part of networks composed
of diverse actors (NGOs of various sizes, origins, and agendas; lawyers; activists;
and government entities), in which the role of international courts is to make
space for dialogue among key actors, disseminate information, and shame non-
compliant States.29
In the field of legal sociology, César A. Rodríguez-Garavito has theorized
the effects of litigation concerning social and economic rights in the Global
South. Rodríguez- Garavito differentiates between enforcement (compli-
ance with the court’s measures) and impact (contribution to the fulfillment of
the rights in question). He proposes four categories for the impacts of judicial
decisions: material direct (leading to public policies), material indirect (increase
in participation), symbolic direct, and symbolic indirect (reframing conflicts and
socioeconomic realities). Rodríguez-Garavito has focused on domestic jurispru-
dence, specifically the rulings from the Constitutional Court of Colombia,30 but
other scholars have applied his theory to the decisions of international tribunals
with some adaptation.31
Focusing on how domestic audiences react to international litigation, Alter,
Helfer, and Mikael R. Madsen have theorized the de facto authority of interna-
tional tribunals. Their theory offers a “yardstick to evaluate how a range of con-
textual factors shapes de facto authority of international courts via an analysis
28 Bogdandy and Venzke, 2014 (n. 26).

29 Dothan (n. 8); Shai Dothan, “A Virtual Wall of Shame: The New Way of Imposing Reputational
Sanctions on Defiant States” [2017] 27 Duke Journal of Comparative & International Law 141.
30 César A. Rodríguez-Garavito, “Beyond the Courtroom: The Impact of Judicial Activism on
Socioeconomic Rights in Latin America” [2011] 89 Texas Law Review 1669; César A. Rodríguez-
Garavito and Diana Rodriguez-Franco, Juicio a la Exclusión: el Impacto de los Tribunales sobre los
Derechos Sociales en el Sur Global (Siglo 21 Editora Iberoamericana 2015); César A. Rodríguez-
Garavito, “Beyond Enforcement: Assessing and Enhancing Judicial Impact,” in Malcolm Langford,
César A. Rodríguez-Garavito, and Julieta Rossi (eds.), Social Rights Judgments and the Politics of
Compliance: Making It Stick (Cambridge University Press 2017).
31 Joel E. Correia, Jeremie Gilbert, and Yogeswaran Subramaniam, Strategic Litigation
Impacts: Indigenous Peoples Land Rights (Open Justice Society 2017).

of audiences’ practices towards ICs.”32 Alter, Helfer, and Madsen analyze the in-
teraction among legal, social, and political structures, as well as the behavior of
actors situated within these structures. International courts thus reach an audi-
ence far greater than just the parties to a proceeding. Alter, Helfer, and Madsen’s
theory includes five types of de facto authority: no authority, narrow authority,
intermediate authority, extensive authority, and popular authority. Narrow au-
thority involves the practice of the litigants involved in the dispute. Intermediate
authority extends to the behavior and decisions of similarly situated actors, in-
cluding potential future litigants and compliance partners. A court has acquired
extensive authority when it influences a broader range of legal actors, shaping
both law and politics. Popular authority occurs when the general public is aware
and accepting of the international court’s decisions. It is important to note that
courts do not progress linearly through the five levels of authority. Each authority
can contract and expand independently and over time.33
In an attempt to consolidate the different conceptions of effectiveness, Helfer
has divided the scholarship into four groups: case-specific effectiveness (closely
linked to compliance), erga omnes effectiveness (systemic precedential effects for
State parties not involved in the litigation), embedded effectiveness (influence on
domestic legal orders), and norm-development effectiveness (lawmaking). Even
though each type of effectiveness can be analyzed separately, these categories
sometimes overlap, as, for example, when a State’s compliance with nonrepetition
measures ordered by an international court (an example of case-specific effec-
tiveness) influences the State’s domestic legal order more generally (an example
of embedded effectiveness). In addition, these types of effectiveness interact with
each other, alternately reinforcing and undermining each other.34
The Inter-American Court illustrates how an international court can expand
its functions far beyond dispute settlement. For example, IACtHR decisions in-
terpret rights broadly and affect States that are not parties to the proceedings.
There are many examples of such decisions, including the ones that invalidate
amnesty laws for mass atrocities committed during dictatorships, recognize the
right of indigenous peoples to free, prior, and informed consent, and acknowl-
edge incidents of intersectional discrimination against Indigenous women. The
next section reviews recent studies that analyze the Inter-American Court’s
expanding influence.
32 Karen J. Alter, Laurence R. Helfer, and Mikael R. Madsen (eds.), International Court Authority
(Oxford University Press 2018).

33 Ibid., 33.
34 Helfer also acknowledges the existence of other functions exercised by international courts,
but does not include them in his study. Laurence Helfer, “The Effectiveness of International
Adjudicators,” in Cesare Romano, Karen J. Alter, and Yuval Shani (eds.), The Oxford Handbook of
3.2. The Effectiveness of the IACtHR
A very prominent group of scholars has researched the Ius Commune

Constitutionale en América Latina (ICCAL) in relation to the Inter-American
System. ICCAL concerns the legal phenomenon of dialogue between domestic
and international courts that aims to transform the situation of gross socioec-
onomic inequality in the region in the context of a transition from dictatorship
to democracy. The concept promotes “the transformative potential of human
rights, democracy and rule of law in Latin America,” a region characterized by
weak institutions and high rates of poverty. ICCAL provides a framework for
understanding the interactions of comparative constitutional law and regional
human rights law across a variety of institutions, stakeholders and actors. Within
the ICCAL framework, scholars have researched topics such as the conven-
tionality control, the “constitutional block,” mechanisms through which inter-
American norms are incorporated into domestic law (interamericanización), the
impact of the reparations system, and institutional empowerment.35
Using a similar approach, the Inter-American Human Rights Network has
analyzed the impact of the IAHRS on the implementation of human rights.
Although its scholars avoid a narrow definition on impact, they “have devel-
oped a grounded and contextual understanding of how the IAHRS influences
the politics and struggles between actors and institutions seeking to advance
the realization of human rights and those who resist such social and political
change,” noting factors that could increase the positive effects of the system.36
For example, Par Engstrom has criticized the equation of compliance and im-
pact in analyses of the IACtHR’s effectiveness and has proposed a broader view
of impact that considers the role of the Inter-American System in the interpre-
tation and expansion of human rights standards, the influence of the IAHRS on
domestic political debates, and the IAHRS’s creation of opportunities for do-
mestic actors to pressure for change.37 Engstrom defines effectiveness as “the de-
gree to which international human rights institutions work to improve human
rights conditions and decrease the likelihood of the repetition of abuses, while
35 Armin von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America: The
Emergence of a New Ius Commune (Oxford University Press 2017); Armin von Bogdandy, Héctor
Fix Fierro, and Mariela Morales Antoniazzi (eds.), Ius Constitutionale Commune en América
Latina: Rasgos, Potencialidades y Desafíos (Max Planck Institute of International Law 2014);
Mariela Morales Antoniazzi and Laura Clerico (eds.), Interamericanización del Derecho a la
Salud: Perspectivas a la Luz del Caso Poblete de la Corte IDH (Instituto de Estudios Constitucionales
de Estado de Querétaro 2019).
36 Par Engstrom et al., Strengthening the Impact of the Inter- American Human Rights System
Through Scholarly Research, Inter-American Human Rights Network Reflective Report, 2016.
37 Par Engstrom, “Reconceptualising the Impact of the Inter-American Human Rights System”
[2017] 8 Revista Direito e Práxis 1251.

providing satisfactory recourse to the victims,”38 a concept that includes but is

not limited to compliance.
Other terms that refer to the effectiveness of international courts include
engagement (the use of international human rights standards by domestic
courts),39 institutional empowerment (the use of the IAHRS by State officials to
overcome institutional resistance and to promote the defense of human rights),40
transconstitutionalism (the relationship between different legal orders in regard
to a common constitutional problem, whether bilateral or multilateral),41 and
“efficacy chain” (a model that separates efficacy into five layers: observance, ap-
plication, strengthening, implementation, and adequacy).42
4. Illustrating Effectiveness: The Case of Indigenous

Territorial Rights
The Inter-American Court’s jurisprudence on indigenous rights illustrates the

inadequacy of compliance as the sole measure of effectiveness. These cases also
demonstrate the wider impact the Court exerts in Latin America, which extends
far beyond mere dispute settlement. This section provides examples of the many
different theories of effectiveness drawn from the Inter-American System’s
unique approach to territorial rights. As of 2020, the IACtHR has decided four-
teen cases in which it has recognized the rights of Indigenous and tribal peoples
to their communal property.43 Indigenous and tribal peoples brought cases in
which they claimed demarcation of their traditional territory and full use and en-
joyment of the natural resources thereon. The Inter-American Court responded
by developing its jurisprudence in this area, especially as concerns the cultural
38 Par Engstrom, “Introduction: Rethinking the Impact of the Inter- American Human Rights
System,” in Par Engstrom (ed.), The Inter-American Human Rights System: Impact Beyond Compliance
(Palgrave Macmillan 2019).
39 Marcelo Torelly, “From Compliance to Engagement: Assessing the Impact of the Inter-
American Court of Human Rights on Constitutional Law in Latin America,” in Par Engstrom (ed.),
The Inter-American Human Rights System: Impact Beyond Compliance (Palgrave Macmillan 2019).
40 Oscar Parra-Vera, “Institutional Empowerment and Progressive Policy Reforms: the Impact of
the Inter-American Human Rights System on Intra-State Conflicts,” in Par Engstrom (ed.), The Inter-
American Human Rights System: Impact Beyond Compliance (Palgrave Macmillan 2019).
41 Marcelo Neves, Transconstitutionalismo (WMF Martins Fontes 2013).
42 Carina Calabria, The Efficacy of the Inter-American Court of Human Rights: a Socio-legal Study
Based on the Jurisprudence of the Inter-American Court of Human Rights Concerning Amnesty Laws,
Indigenous Rights and Rights of Detainees (University of Manchester 2018).
43 Mayagna (Sumo) Awas Tingni v. Nicaragua [2001] IACtHR, Moiwana v. Suriname [2005], Yakye
Axa v. Paraguay [2005] IACtHR, Sawhoyamaxa v. Paraguay [2006] IACtHR, Saramaka v. Suriname
[2007] IACtHR, Xákmok Kásek v. Paraguay [2010] IACtHR, Kichwa de Sarayaku v. Ecuador [2012]
IACtHR, Kuna de Madungandí y Emberá de Bayano v. Panama [2014] IACtHR, Garífuna de Punta
Piedra v. Honduras [2015] IACtHR, Garífuna Triunfo de la Cruz v. Honduras [2015] IACtHR, Kaliña y
Lokono v. Suriname [2015] IACtHR, Xucuru v. Brazil [2018] IACtHR, and Lhaka Honhat v. Argentina
[2020] IACtHR.
adequateness of the reparation measures, transformation through implementa-

tion, and the innovative expansion of rights,44 including recognition of the rights
to collective property, cultural identity, and self-determination, as well as free,
prior, and informed consent.
If effectiveness were solely a matter of compliance, the Court would be
considered completely ineffective on indigenous rights. Only one case has
reached full compliance (Awas Tingni), and the overall compliance rate is less
than 30 percent. There are some cases that have been pending compliance, with
very few steps taken in that direction, for more than fifteen years (i.e., Moiwana
and Yakye Axa).45 Some communities are living in the same conditions of dis-
placement and poverty as they had been before the litigation.46 Evaluations solely
of compliance, however, obscure progress that has been made in the complex
and costly domestic processes of implementation. In the case of Sawhoyamaxa,
for example, the State has complied with only 25 percent of the measures ordered
by the Inter-American Court. This number does not reflect that the State has
already acquired the ancestral lands, started to pay the compensation, and built
houses for the community, which it has done in response to the IACtHR’s orders
of the IACtHR but concerning which the Court has not yet declared compliance.
Moreover, the victims from the case of Sawhoyamaxa have since formed a com-
plex network of national and international NGOs that have pushed for compli-
ance with this specific decision and have strengthened the domestic Indigenous
movement more generally.47
A more full picture of effectiveness can be acquired through the consideration
of each of the four categories Helfer identified: norm-development effectiveness,
case-specific effectiveness, embedded effectiveness, and erga omnes effective-
ness.48 As for norm-development effectiveness, the standards developed by the
Inter-American Court regarding the recognition of rights and the reparations
system are a significant, original contribution to the protection of cultural
specificities in the Americas. These norms also have contributed to the recog-
nition of territorial rights globally and have been applied by other courts and
44 Thomas Antkowiak, “Rights, Resources and Rhetoric: Indigenous Peoples and the Inter-
American Court” [2014] 33 University of Pennsylvania Journal of International Law 113; Mariana
Monteiro de Matos, Indigenous Land Rights in the Inter-American System (Brill Nijhoff 2021).
45 Navarro (n. 15).
46 Julie Wetterslev, Surrounded by Settlers: The Creation and Fragmentation of Indigenous
Territories in Nicaragua (Annual Conference of the Latin American Studies Association 2020); Joel
E. Correia, “Indigenous Rights at a Crossroads: Territorial Struggles, the Inter-American Court of
Human Rights, and Legal Geographies of Liminality” [2018] 97 Geoforum 73.
47 Joel E. Correia, “Unsettling Territory: Indigenous Mobilizations, the Territorial Turn, and the
Limits of Land Rights in the Paraguay-Brazil Borderlands” [2019] 18 Journal of Latin American
Geography 11; Maximiliano M. Miranda and Julia C. Alonso, Advancing Indigenous Peoples’
Rights Through Regional Human Rights Systems: The Case of Paraguay (International Institute for
Environment and Development 2017).
48 Helfer (n. 34).
human rights mechanisms. As regards case-specific effectiveness, studying how

and why States have complied with the reparation measures in Indigenous rights
cases reveals the complex domestic political process that lead to implementation.
Some State entities, including judiciaries, legislatures, and national human rights
institutions, also have incorporate inter-American standards on Indigenous
rights in ways that go beyond ordered reparation measures, contributing to the
embedded effectiveness of the Inter-American Court. Lastly, even States that
were not parties to IACtHR cases on Indigenous rights have incorporated the
standards developed in this jurisprudence, contributing to the erga omnes effec-
tiveness of the Court. For example, several constitutional courts have adopted
the Court’s standards on Indigenous rights,49 as have many NGOs and national
human rights institutions.
As for the de facto authority framework,50 the Inter-American Court’s au-
thority has varied over time and by country. In the case of Nicaragua, the IACtHR
exercises narrow authority, as evidenced by compliance with the Awas Tingni case
and partial compliance with Acosta et al. (2017).51 This narrow authority, how-
ever, has decreased over time, as shown by the State’s overt defiance to some rep-
aration measures in Acosta et al. and its insufficient response to the provisional
measure Pobladores de las Comunidades del Pueblo Indígena Miskitu de la Region
Costa Caribe Norte (2016). The Inter-American Court has also exercised inter-
mediate authority in Nicaragua, revealed by the many victims who have brought
petitions in the IAHRS in the hope of a favorable ruling to protect their rights.
These petitions have increased since the 2018 coup.52 Lastly, the Inter-American
Court has extensive authority in Nicaragua, since it is recognized by civil society
as creating binding law on Indigenous rights and because councilpersons have
referred to the IACtHR’s standards on consent when discussing bills concerning
development projects (e.g., during discussion of Law 800 in 2012 and Law 840 in
2013, regarding the Nicaraguan Grand Canal).53
49 Manuel E.G. Mera, “Judicialização da discriminação estrutural contra povos indígenas e
afrodescendentes na América Latina: conceptualização e tipologia de um diálogo interamericano”

[2015] 8 Rev Quaestio Iuris 826.
50 Karen J. Alter, Laurence R Helfer, and Mikael R Madsen (eds.), International Court Authority

51 Acosta et al. v. Nicaragua [2017] IACtHR, Ser. C No. 334; Acosta et al. v. Nicaragua [2019]
IACtHR.
52 See, e.g., the provisional measure 2019 Matter of the Nicaraguan Centre for Human Rights
and the Permanent Commission of Human Rights; petition P912-14, proposed in 2014 by the NGO
CALPI regarding the violation of territorial rights and the precautionary measure MC 495-14a, also
proposed in 2014 by the NGO CALPI.
53 Law N°. 840, Special Law for the Development of Nicaraguan Infrastructure and Transport
Relating to the Canal, Free Trade Zones and Associated Infrastructure (Assembly of Nicaragua, June
13, 2013), <http://legislacion.asamblea.gob.ni/Diariodebate.nsf/xpMain.xsp> (accessed January
23, 2022).
Rodríguez-Garavito’s framework of impact, meanwhile, has been applied

to the three Paraguayan Indigenous cases by Joel E. Correia, Jeremie Gilbert,
and Yogeswaran Subramaniam.54 One of the cases Correia, Gilbert, and
Subramaniam analyzed had not been fully implemented, but was nevertheless
effective in increasing the political tools used by the Indigenous movement,
building the capacities of grassroots groups, raising awareness about human
rights, prompting the reoccupation of traditional lands, and shifting the balance
of political power between Indigenous peoples and State and private companies.
As the Xákmok Kásek leader stated, “The resolution from the court was impor-
tant and it made us stronger. It spoke of a truth.”55
Finally, the IACtHR’s jurisprudence on Indigenous rights fits within the
ICCAL approach. The Argentinian Supreme Court of Justice,56 the Peruvian
Constitutional Court,57 the Bolivian Plurinational Constitutional Court,58 and
the Colombian Constitutional Court59 have all applied the conventionality con-
trol to recognize the Indigenous right to free, prior and informed consent. The
Inter-American Court also influenced the creation and strengthening of State
entities focused on Indigenous peoples and the adoption of domestic legal
standards that protect Indigenous and tribal peoples’ rights. There is thus a clear
process of interamericanización of the standards for protection of Indigenous
peoples’ territories that includes increasing recognition of Indigenous and tribal
peoples’ rights. There are, however, three limitations to this process. First, it is
not linear and progressive, as revealed by the recent setbacks in the Brazilian pro-
tection of territorial rights.60 Second, the IACtHR is not the only international
organization promoting Indigenous and tribal peoples’ territorial rights but is in-
stead joined in these efforts by several UN entities and also financial institutions
such as the World Bank.61 Third, and unfortunately, the transformation of legal
standards is not necessarily accompanied by transformation of realities on the
54 Correia, Gilbert, and Subramaniam (n. 31).

55 Ibid., 17.
56 Comunidad Indígena Eben Ezer c/provincia de Salta—Ministerio de Empleo y la Producción s/
amparo, [2008] Suprema Corte Argentina, Interno C2124XLI.

57 Gonzalo Tuanama Tuanama and others [2011] Tribunal Constitucional de Peru, Pleno, Lima,
Exp. N. 24-2009-PI.
58 Sentence 0079/2015 (Bolivian Plurinational Constitutional Court, September 9, 2015).
59 Judgment T-307/2018 (Colombian Constitutional Court, July 27, 2018).
60 HRC “Report of the Special Rapporteur on the rights of indigenous peoples on her mission
to Brazil” (August 8, 2016) A/HRC/33/42/Add.1; Diogo F. da Rocha and Marcelo Firpo S. Porto,
A vulnerabilização dos povos indígenas frente ao COVID-19: autoritarismo político e a economia
predatória do garimpo e da mineração como expressão de um colonialismo persistente (Neepes/ENSP/
Fiocruz, 2020).
61 Karl H. Offen, “The Territorial Turn: Making Black Territories in Pacific Colombia” [2003] 2
Journal of Latin American Geography 43.

ground. There is a persistent gap between the acceptance of these norms and
their enforcement.62
As this chapter has demonstrated, scholars at first measured the effectiveness

of international courts solely by assessing compliance with their decisions, al-
though they sometimes counterbalanced this with considerations of usage
rates and the success of treaty regimes. More recently, scholars have identified
functions and objectives of international courts that go beyond dispute settle-
ment, indicating that the effectiveness of these courts requires a broader, more
nuanced evaluation. At the same time, some scholars have started to analyze the
authority and legitimacy of international courts. Scholars researching the Inter-
American System specifically have also studied the structural impact of litiga-
tion, which is related to nonrepetition measures and, more broadly, the influence
of the IAHRS on civil society and States. Last but not least, a prominent group of
scholars has argued that the IAHRS transforms the situation of rights in Latin
America by make space for dialogue among domestic actors in the interest of
alleviating poverty and eliminating discrimination.63
Although the terms and definitions vary, the most recent literature generally
shares a concern about the effects of international litigation on domestic pol-
itics. This concern is even more present in studies conducted on the IAHRS,
due to the nature of the IACtHR and transformative constitutionalism in Latin
America. The Inter-American Court’s jurisprudence on Indigenous rights shows
the assessing only compliance is insufficient to achieve an accurate measure of
the effectiveness of the IACtHR. The Court’s function when faced with litigation
on indigenous land rights is not merely dispute settlement. Its decisions have
much broader impacts on civil society actors, within the State that is party to the
proceedings and in other States as well. A similar pattern appears in other areas,
including women’s rights, LGBTIQ+rights, and the right to health. Future re-
search should further reveal the diverse ways the IACtHR has increased the pro-
tection of human rights in Latin America and determine factors that facilitate a
transformative impact so the Inter-American Court can have even greater effect
in future cases.
62 Felipe G. Isa, “The Decision by the Inter-American Court of Human Rights on the Awas Tingni
vs. Nicaragua Case (2001): The Implementation Gap” [2017] 8 Age of Human Rights Journal 67;
Correia (n. 47).
63 Bogdandy et al. (n. 35); Armin von Bogdandy, Mariela Morales Antoniazzi, and Eduardo
Ferrer Mac-Gregor (eds.), Ius constitutionale Commune en América Latina: Textos Básicos para su
Commprensión (Instituto de Estudios Constitucionales de Estado de Querétaro 2017).
I.8
The Use of Transformative Provisional
Measures by the Inter-American Court
of Human Rights
Toward a Tangible Impact
By Clara Burbano-Herrera1 and Yves Haeck
1. Introduction
In 2017, the Inter-American Court of Human Rights (Inter-American Court,

or IACtHR) ordered provisional measures to protect the life and integrity of all
persons deprived of liberty at the Criminal Institute of Plácido de Sá Carvalho
(the Institute), 3,820 detainees in total.2 The detention facility faced serious
challenges, including high levels of violence, lack of access to health services and
medicine, spread of contagious infections, and deaths. Overpopulation at the
Institute had reached an approximate density of 200 percent.3 Only one doctor
attended to the medical needs of the 3,820 prisoners, and most other aspects of
life at the Institute were controlled by the prisoners themselves. In its provisional
measures, the Inter-American Court ordered Brazil to reduce overcrowding,
assess the overall situation, and create a plan for the structural reform of the
Institute.4 In 2018, despite the provisional measures, the general situation at the
Institute did not improve.
1 This work was supported by the Research Fund Ghent University and the European Union.
Views and opinions expressed are however of those of the authors only and do not necessarily reflect
those of the European Union or the European Research Council. Neither the European Union nor
the granting authority can be held responsible for them
2 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2017] IACtHR; see also precautionary
measures adopted by the Inter- American Commission on Human Rights (Inter- American
Commission, or IACHR) Criminal Institute of Plácido de Sa Carvalho v. Brazil [2016] IACHR.
Precautionary measures had also been granted by the Inter-American Commission in 2016.
3 International standards, such as those advanced by the Council of Europe, have established
that a population density exceeding 120 percent means a prison is dangerously overcrowded. See
Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR, para. 78.
4 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2017] IACtHR, paras. 28, 70, and
Resolutive, para. 3.
Clara Burbano-Herrera and Yves Haeck, The Use of Transformative Provisional Measures by the Inter-American
Court of Human Rights In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy,
Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press.
© Clara Burbano-Herrera and Yves Haeck 2024. DOI: 10.1093/oso/9780197744161.003.0009
154 Clara Burbano-Herrera and Yves Haeck
The situation at the Institute is far from an isolated case. On several occasions,
the Inter-American Court has ordered provisional measures to protect persons
deprived of liberty from degrading conditions in Brazilian prisons.5 Since ter-
rible prison conditions is a tragedy common not only in Brazil but also in other
Latin American countries, this chapter aims to study the impact of transforma-
tive provisional measures granted by the IACtHR to address contexts of deten-
tion.6 We suggest that the term transformative provisional measures refer to those
provisional measures adopted by the Inter-American Court that address struc-
tural problems endangering many individuals (see section 4).
We will devote special attention to the transformative provisional measures
adopted in the case of the Institute in November 2018 because, in this case, the
IACtHR departed from its usual method of addressing detention cases. The
provisional measures in this case are so revolutionary that they may eventu-
ally be considered a benchmark for studies of protective measures in interna-
tional human rights law, at least in the context of prisons if not more generally.
Furthermore, the unique qualities of this order of provisional measures could
generate a debate about the legitimacy of the IACtHR’s interventions in public
policy as well as about its role and limitations. It is not yet clear whether the pro-
visional measures ordered were appropriate to prevent human rights violations
and protect detainees’ human rights, as stipulated in Article 63(2) of the
American Convention on Human Rights (American Convention, or ACHR), or
whether the State will comply with these measures.7
This chapter is divided into six sections. The second section gives a general
overview of the human rights standards developed by the IACtHR with re-
spect to persons deprived of their liberty in Latin America. The third section
introduces the concept of transformative provisional measures. The fourth
5 See, e.g., Matter of the Penitentiary Complex of Pedrinhas v. Brazil [2019] IACtHR; Matter of the
Penitentiary Complex of Curado v. Brazil [2018] IACtHR; Matter of the Socio-Educational Internment
Facility v. Brazil [2017] IACtHR; Socio-Educational Internment Facility of the Penitentiary Complex of
Curado v. Brazil [2017] IACtHR; Matter of the Socio-Educational Internment Facility v. Brazil [2015]
IACtHR; Matter of Urso Branco Prison v. Brazil [2011] IACtHR; Matter of the persons imprisoned in
the “Dr Sebastião Martins Silveira” Penitentiary in Araraquara, São Paulo v. Brazil [2008] IACtHR;
Matter of children deprived of liberty in the “Complexo do Tatuapé” of Fundação CASA v. Brazil [2008]
IACtHR; Matter of the persons imprisoned in the “Dr Sebastião Martins Silveira” Penitentiary in
Araraquara, São Paulo v. Brazil [2008] IACtHR.
6 See, e.g., Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR; Certain
Penitentiary Centers of Venezuela, Penitenciaria Center of the Central Occidental Region (Uribana
Prison) v. Venezuela [2013] IACtHR and Order [2015]; Capital Detention Center El Rodeo I and II
v. Venezuela [2011] IACtHR; Convicted and tried inmates committed to the Penitentiary of Mendoza
and its offices v. Argentina [2004] IACHR; 108 inmates in the Maximum Security Prison at Kilometer
14 v. Colombia [2004] IACHR; Political prisoners in buildings 1 and 2 of the National Model Prison in
Bogotá v. Colombia [2000] IACHR; Minors in the San Pedro de Sula Prison v. Honduras [1996] IACHR.
7 See Clara Burbano Herrera, Yves Haeck, and Alessandra Cuppini, “Transformative Provisional
Measures and Prisons in the Americas: Protect the Invisible,” in Clara Burbano Herrera and Yves
Haeck (eds), Human Rights Behind Bars. Ius Gentium: Comparative Perspectives on Law and Justice,
vol. 103 (Springer 2022), 143.
Use of Transformative Provisional Measures 155
section then focuses on the current conditions in which detainees are kept in
some Latin American countries. The fifth section analyzes conditions of deten-
tion through the lens of provisional measures ordered by the Inter-American
Court. The sixth section returns to the case of the Criminal Institute of Plácido
de Sá Carvalho v. Brazil, analyzing in greater detail the terrible conditions of the
prison and the measures ordered by the IACtHR. The seventh section concludes
with some reflections on the Inter-American Court’s role in protecting human
rights in the context of detention.
2. Human Rights Standards Applicable to Persons Deprived

of Their Liberty in Latin America
Respect for human dignity is the guiding principle in the context of persons
deprived of their liberty. American Convention Article 5(2) provides: “No one
shall be subjected to torture or to cruel, inhuman, or degrading punishment or
treatment. All persons deprived of their liberty shall be treated with respect for
the inherent dignity of the human person.” The Inter-American Court interprets
ACHR Article 5(2) to mean that every person deprived of liberty has the right
to be treated with respect for their dignity.8 For example, in the case of Montero
Aranguren et al. (Detention Center of Catia) v. Venezuela, the IACtHR found:
[C]‌ertain inmates of the Detention Center of Catia not only had to defecate in
the presence of their [cell]mates, but they also had to live amid excrements and
even eat their food in these humiliating conditions. The Court consider[ed] that
said detention conditions were absolutely unacceptable, [as] they involve[d]
disdain for human dignity; cruel, inhuman and degrading treatment; high risk
for health and life and a clear violation of Articles 5(1)[, which provides that
“[e]very person has the right to have his physical, mental, and moral integrity
respected,”] and 5(2) of the American Convention.9
The Inter-American Court, through its jurisprudence, has developed a set

of human rights standards related to persons deprived of liberty. The IACtHR
8 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR, para. 45; Boyce and others
v. Barbados [2007] IACtHR, para. 88; Lori Berenson Mejía v. Peru [2004] IACtHR, para. 102; De la
Cruz Flores v. Peru [2004] IACtHR, para. 124; Bulacio v. Argentina [2003] IACtHR, para. 126; Durand
and Ugarte v. Peru [2000] IACtHR, para. 78; Institute of Reeducation of the Minor “Panchito Lopez”
v. Paraguay [1995] IACtHR, para. 151; Neira Alegría and others v. Peru [1995] IACtHR, para. 60.
9 Montero Aranguren and others v. Venezuela [2006] IACtHR, para. 99. Similarly, the European
Court of Human Rights (ECtHR) held that forcing a prisoner to live, sleep, and use sanitary facilities
together with a large number of other prisoners was, per se, degrading treatment. See Khudoyorov
v. Russia [2005] ECtHR, para. 107; I.I. v. Bulgaria [2005] ECtHR, para. 73; Karalevicius v. Lithuania
[2005] ECtHR, para. 39.
recognizes that, in addition to presenting a potential violation of the right to

personal liberty, the deprivation of liberty inevitably implicates other human
rights. Nevertheless, the Court has held that imprisonment’s direct impairment
of the right to liberty and indirect impairment of other rights must be strictly
minimized.10 To that effect, the Inter-American Court has stated:
[T]‌he State must ensure that the manner and method of any deprivation of
liberty do not exceed the unavoidable level of suffering inherent in detention
and that the detainee is not subjected to sufferings or hardships exceeding
the unavoidable suffering inherent in detention, and that, given the practical
requirements of incarceration, the detainee’s health11 and welfare are ade-
quately warranted.12
At the same time, the Inter-American Court has asserted that the depriva-
tion of liberty must not be accompanied by the dispossession of certain rights.13
The rights of detainees to life,14 personal integrity,15 and fair trial,16 for example,
must be effectively respected and guaranteed just as they must be ensured to
individuals who have not been deprived of liberty.17 According to the IACtHR:
[T]‌he poor physical and sanitary conditions existing in detention centres, as

well as the lack of adequate lighting and ventilation, are per se violations to
Article 5 of the American Convention, depending on their intensity, length of
detention and personal features of the inmate, since they can cause hardship
that exceed the unavoidable level of suffering inherent in detention, and be-
cause they involve humiliation and a feeling of inferiority.18
10 Montero Aranguren and others v. Venezuela [2006] IACtHR, para. 86; López Álvarez v. Honduras
[2006] IACtHR, para. 105; “Juvenile Reeducation Institute” v. Paraguay [2004] IACtHR, para. 154;
“Five Pensioners” v. Peru [2003] IACtHR, para. 116.
11 The UN Standard Minimum Rules for the Treatment of Prisoners (“Mandela Rules”) provide
that “[p]‌risoners should enjoy the same standards of health care that are available in the community,
and should have access to necessary health-care services free of charge without discrimination on
the grounds of their legal status.” UN Standard Minimum Rules for the Treatment of Prisoners (the
Mandela Rules), UN Doc. A/RES/70/175 (December 17, 2015), Rule 24(1).
12 Montero Aranguren and others v. Venezuela [2006] IACtHR, para. 86.
13 Gómez Paquiyauri Brothers v. Peru [2004] IACtHR, para. 108; Maritza Urrutia v. Guatemala
[2003] IACtHR, para. 87.

14 Art. 4 American Convention.
17 Institute of Reeducation of the Minor “Panchito Lopez” v. Paraguay [2004] IACtHR, para. 155.
See also the Inter-American Commission’s Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas, which declare that every person deprived of liberty shall have
the right to health (Principle X). Similarly, the UN Standard Minimum Rules for the Treatment of
Prisoners (Mandela Rules) adopted by the United Nations, General Assembly in Resolution A/RES/
70/175, Rule 24.
18 Montero Aranguren and others v. Venezuela [2006] IACtHR, para. 97.
The Inter-American Court has also found that States have a special obligation
to protect detainees. It has reasoned that “the State is in a special position of guar-
antor to the persons deprived of their liberty, since prison authorities exercise a
strong control or supervision over the persons under custody.”19 Moreover, in the
case of persons deprived of their liberty who belong to vulnerable groups, such
as persons with disabilities, women, and children, the IACtHR has established
the need for a stricter scrutiny, given this added vulnerability.20 Children are also
protected under Article 19 of the American Convention, which provides: “Every
minor child has the right to the measures of protection required by his condi-
tion as a minor on the part of his family, society, and the [S]‌tate.” States therefore
function as guarantors for children, which means they must adopt all the care
that is required for their development.21 In this context, States have two specific
obligations: first, Articles 1 and 19 ACHR22 obligate States to assume this spe-
cial position as guarantor with particular care and responsibility, and, second,
Article 19 ACHR obligates States to take special measures based on the principle
of the best interests of the child.23 With respect to the rights of children deprived
of liberty, the State additionally must undertake to provide health and educa-
tional assistance in order to ensure that imprisonment will not destroy their life
projects.24
The Inter-American Court’s jurisprudence has also established that rape can
constitute torture.25 According to the IACtHR’s interpretation of Article 5(2)
ACHR, torture consists of any act of ill treatment that: (i) is intentional, (ii)
causes severe physical or mental suffering, and (iii) is committed with an ob-
jective or purpose.26 The Inter-American Court has found that rape is, under
19 Montero Aranguren and others v. Venezuela [2006] IACtHR, para. 87; Cantoral Benavides v. Peru
[2001] IACtHR, para. 87; Neira Alegría and others v. Peru [1996] IACtHR, para. 60.
20 Chinchilla Sandoval v. Guatemala [2016] IACtHR, paras. 218–224; Villagrán Morales and others
v. Guatemala [1999] IACtHR, paras. 146, 191.

21 This obligation, as regards the conditions of juvenile detention, is therefore reinforced. See, e.g.,
Servellón-García v. Honduras [2006] IACtHR, para. 112; Juvenile Reeducation Institute “Panchito
Lopez” v. Paraguay [2004] IACtHR, para. 16; Gómez-Paquiyauri Brothers v. Peru [2004] IACtHR,
paras. 124, 163, 164, 171; Bulacio v. Argentina [2003] paras. 126, 134; Villagrán Morales and others
v. Guatemala [1999] IACtHR, paras. 146, 191.
22 Institute of Reeducation of the Minor “Panchito Lopez” v. Paraguay [2004] IACtHR, para. 160.
23 Gómez Paquiyauri Brothers v. Peru [2004] IACtHR, paras. 124, 163–164, 171.
24 IACtHR, Advisory Opinion OC- 17/2002, “Juridical Condition and Human Rights of the
Child,” August 28, 2002, paras. 80, 81, 84, 86–88. The IACHR refers to Rule 13(5) of the UN Standard
Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), adopted by the
General Assembly in Resolution 40/33, November 28, 1985. See also the UN Rules for the Protection
of Juveniles Deprived of their Liberty, adopted by the General Assembly in Resolution 45/113,
December 14, 1990.
25 Women Victims of Sexual Torture in Atenco v. Mexico [2018] IACtHR, para. 191.
26 Ibid. See also López Soto et al. v. Venezuela [2018] IACtHR, para. 186; Favela Nova Brasília
v. Brazil [2017] IACtHR, para. 252; Río Negro Massacres v. Guatemala [2012] IACtHR, para. 132;
Rosendo Cantú et al. v. Mexico [2010] IACtHR, para. 118; Fernández Ortega et al. v. Mexico [2010]
IACtHR, para. 128; Bueno Alves v. Argentina [2007] IACtHR, para. 79.
certain circumstances, an intentional act that causes intense suffering to the

victim in order to intimidate, debase, humiliate, punish, or control the victim.
For rape to constitute torture, the intentionality, the severity of the suffering, and
the purpose of the act must be analyzed, taking into consideration the specific
circumstances of each case.27
Additionally, Article 5(2) ACHR’s prohibition of any injury or damage to the
life, integrity, or health of a person deprived of liberty is complemented by the
essential purpose of the deprivation of liberty, which is the rehabilitation of
the prisoners.28 Article 5(6) ACHR provides: “Punishments consisting of dep-
rivation of liberty shall have as an essential aim the reform and social readap-
tation of the prisoners.” Failure to comply with the duty to safeguard the health
and welfare of detainees and ensure that the manner and method of deprivation
of liberty does not exceed the inevitable level of suffering inherent in detention
could result in a violation of the absolute prohibition against cruel, inhuman, or
degrading treatment or punishment.29 States cannot invoke economic hardships
to justify conditions of detention that do not meet the minimum international
standards in this area and do not respect human dignity.30 As we mentioned
earlier, every person deprived of liberty must be treated with respect for human
dignity and must not be subjected to torture or cruel, inhuman, or degrading
treatment or punishment.31 Failure to respect the dignity of persons deprived of
their liberty violates a basic principle of democratic societies.32 As such, Article
5(2) ACHR can never be suspended, not even in cases of war, public danger, or
other threats to the independence or the security of the State Parties,33 and not
when a person has committed a crime.34
As for prison conditions, the Inter-American Court has established that “im-
prisonment in overcrowded conditions, isolation in a reduced cell, with lack
of ventilation and natural light, without a bed to lie in or adequate hygiene
27 See López Soto et al. v. Venezuela [2018] IACtHR, paras. 186–187; Rosendo Cantú et al. v. Mexico
[2010] IACtHR; Fernández Ortega et al. v. Mexico [2010] IACtHR, para. 127.
28 Penal Miguel Castro Castro v. Peru [2006] IACtHR, para. 314; García Asto and Ramírez Rojas
v. Peru [2005] IACtHR, para. 223; Lori Berenson Mejía v. Peru [2005] IACtHR, para. 101.
29 Lori Berenson Mejia v. Peru [2005] IACtHR, para. 101; Tibi v. Ecuador [2004] IACtHR, para.
150; Juvenile Reeducation Institute “Panchito Lopez” v. Paraguay [2004] IACtHR, para. 151; Bulacio
v. Argentina [2003] IACtHR, para. 126.
30 Boyce and others v. Barbados [2007] IACtHR, para. 88; Montero Aranguren and others
v. Venezuela [2006] IACtHR, para. 85.

31 Durand and Ugarte v. Peru [2000] IACtHR, para. 78; Neira Alegría and others v. Perú [1996]
IACtHR, para. 86.

32 Lopez-Alvarez v. Honduras [2006] IACtHR, para. 104; Institute of Reeducation of the Minor
“Panchito Lopez” v. Paraguay [2004] IACtHR, para. 154.
33 The right to personal integrity is included in the list of non-derogable rights in Article 27(2) of
the American Convention on Human Rights.

34 Penal Miguel Castro Castro v. Peru [2006] IACtHR, para. 274; Institute of Reeducation of the
Minor “Panchito Lopez” v. Paraguay [2004] IACtHR, para. 157; Montero Aranguren and others
v. Venezuela [2006] IACtHR, para. 85; Ximenes Lopes v. Brazil [2006] IACtHR, para. 126.
condition, and solitary confinement or unnecessary restrictions to visitation

regimes constitute a violation to the right to humane treatment.”35 In the case of
Vélez Loor v. Panama, the IACtHR held that “a population density higher than
120% [ . . . ] reaches dangerous levels.”36 Prison overcrowding is a factor the Court
considers when determining whether a State has violated Article 5(2) ACHR. In
the Montero Aranguren case, the Court relied on the European Committee for
the Prevention of Torture’s definition of an overcrowded prison and guidelines
on the minimum size for each prisoner’s cell.37 The IACtHR has even held, as it
did in the case of Pacheco Teruel et al. v. Honduras, that “[o]‌vercrowding is, in it-
self, a violation of personal integrity.”38 The prolonged isolation and coercive lack
of communication experienced in prisons can also cause severe harm, such as
moral suffering and mental stress, to any individual, which in turn creates a risk
of aggression and abuse of authority.39
On the topic of preventive detention, the Inter-American Court has asserted
that it is a precautionary and nonpunitive measure.40 Preventive detention also
must meet the essential requirements in a democratic society, that is, it must be
exceptional and limited by the principles of legality, presumption of innocence,
necessity, and proportionality.41 Similarly, the IACtHR will find a custodial
measure arbitrary unless it complies with the following standards: (i) its purpose
must be compatible with the American Convention, (ii) it must be suitable to
achieve the objective pursued, (iii) it must be necessary, and (iv) it must be pro-
portional.42 The Inter-American Court also has repeatedly stated that the only
legitimate purpose for the deprivation of liberty of a criminal defendant is to
ensure that the defendant will not impede the efficient development of an inves-
tigation or evade justice.43
35 Penal Miguel Castro Castro v. Peru [2006] IACtHR, para. 315.

36 Vélez Loor v. Panama [2010] IACtHR, para. 203.
37 Montero Aranguren and others v. Venezuela [2006] IACtHR, para. 90, referring to CPT/ Inf
(92) 3 [EN] 2nd General Report, April 13, 1992, para. 43. The latest European Committee for the
Prevention of Torture (CPT) minimum standard for personal living space in prison establishments
is: 6m² of living space for a single-occupancy cell +sanitary facility; 4m² of living space per prisoner
in a multiple-occupancy cell +fully-partitioned sanitary facility; at least 2m between the walls of
the cell; and at least 2.5m between the floor and the ceiling of the cell (CPT, Living space per pris-
oner in prison establishments: CPT standards, CPT/Inf (2015) 44, Strasbourg, December 15, 2015,
paras. 9–11.
38 Pacheco Teruel et al. v. Honduras [2012] IACtHR, para. 67.
39 Lori Berenson Mejia v. Peru [2005] IACtHR, para. 104; Maritza Urrutia v. Guatemala [2003]
IACtHR, para. 87; Cantoral Benavides v. Peru [2001] IACtHR, para. 84; Bamaca Velasquez
v. Guatemala [2000] IACtHR, para. 150.
40 Acosta Calderón v. Ecuador [2005] IACtHR, para. 75; Tibi v. Ecuador [2004] IACtHR, para. 106.
41 García Asto and Ramírez Rojas v. Peru [2005] IACtHR, para. 106.
42 Women Victims of Sexual Torture in Atenco v. México [2018] IACtHR, para. 251; Ricardo Canese
v. Paraguay [2004] IACtHR, para. 129.

43 Suárez Rosero v. Ecuador [1997] IACtHR, para. 77; Women Victims of Sexual Torture in Atenco
v. Mexico [2018] IACtHR, para. 251.

3. Legal Basis of Provisional Measures in the Inter-

American Human Rights System
Article 63(2) of the American Convention expressly authorizes the Court to

adopt provisional measures “in cases of extreme gravity and urgency, and
when necessary to avoid irreparable damage to persons.”44 The Inter-American
Commission on Human Rights (Inter-American Commission, or IACHR) can
also request provisional measures from the IACtHR, even when the case has not
been submitted to the Court.45
Provisional measures are both preventive and protective. They are preventive
because they are issued to avoid violations of human rights.46 Provisional meas-
ures prompt a State to act expeditiously to correct situations that may prima facie
cause irreparable damage to individual rights. Related, when a State complies
with provisional measures it will avoid being found legal responsible by an in-
ternational mechanism because the State thereby corrects, in a timely manner,
situations where violations of human rights could have occurred. Provisional
measures are protective because they preserve the rights at issue during adju-
dication.47 Due to their purpose and legal character, the adoption of provisional
measures does not require the IACtHR to prejudge the merits of the case, nor
does it represent a condemnation of the State.48
44 American Convention, Article 63(2). The procedures for provisional measures have been fur-
ther developed in the Rules of Procedure and the Statute of the IACHR as well as those of the Inter-
American Court of Human Rights.
45 When the case is under consideration before the Inter- American Commission, the Inter-
American Court may adopt provisional measures at the request of the IACHR. The IACtHR cannot
adopt measures ex officio at this stage. See Article 63(2) American Convention.
46 Eva Rieter and Karin Zwaan (eds.), Urgency and Human Rights, The Protective Potential and
Legitimacy of Interim Measures (Asser Press 2021), 229.

47 For an in- depth study of provisional measures, see Clara Burbano Herrera, Provisional
Measures in the Case Law of the Inter-American Court of Human Rights (Intersentia 2010), 227; see
also Clara Burbano Herrera and Yves Haeck, “Letting States off the Hook? The Paradox of the Legal
Consequences following State Non-compliance with Provisional Measures in the Inter-American
and European Human Rights Systems” [2010] 28(3) Netherlands Quarterly of Human Rights 332–
360; Clara Burbano Herrera and Yves Haeck, “The Impact of Precautionary Measures on Persons
Deprived of Liberty in the Americas,” in Par Engström (ed.), The Inter-American Human Rights
System: Impact Beyond Compliance (Palgrave Macmillan 2018), 89–113; Antonio Cançado Trindade,
“The Evolution of Provisional Measures Under the Case Law of the Inter-American Court” [2003]
24 Human Rights Law Journal 162–168; Felipe González, “Urgent Measures in the Inter-American
Human Rights System” [2010] 7 SUR 51–73; Jo M. Pasqualucci, “Medidas provisionales en la Corte
Interamericana de Derechos Humanos: una comparación con la Corte Internacional de Justicia y
la Corte Europea de Derechos Humanos” [1994] 19 Revista IIDH 47–112; Eva Rieter, Preventing
Irreparable Harm: Provisional Measures In International Human Rights Adjudication (Intersentia
2010), 1200.
48 The Inter-American Court can order provisional measures in matters concerning States that
have ratified the American Convention and accepted the IACtHR’s contentious jurisdiction. As of
2019, only twenty-three of the thirty-five Member States of the Organization of American States have
ratified the American Convention, and of these, only twenty have accepted the contentious jurisdic-
tion of the Inter-American Court.
Provisional measures can be adopted in urgent situations involving serious

danger, as is the case for harsh detention conditions that present an imminent
risk to the right to life, the right to personal integrity, or the right to health.49 In
response to the terrible conditions of detention in some prisons in the Americas,
the Inter-American Court has issued provisional measures to protect both
individuals and groups of persons deprived of their liberty. Provisional measures
have protected clearly identified persons, such as sick detainees and detainees
condemned to death, as well as large groups up to and including all inmates in
some prisons.50
Due to the urgency of the situation, the Inter-American Court responds to
requests for provisional measures quickly. Sometimes the IACtHR adopts pro-
visional measures on the same day it receives the request.51 Although, by defini-
tion, the provisional measures ordered by the Court are temporary, in practice
some provisional measures have remained in place for years. These measures last
because cases with which they are associated are so grave that, in spite of the im-
plementation of certain measures by State authorities, the situation of extreme
gravity is not resolved. It is thus difficult to determine in advance how long the
provisional measures will be in force. Some provisional measures have remained
in place for less than a year, while others have been in force for more than ten
years.52
4. Transformative Provisional Measures: Toward a

Material Impact
The term transformative provisional measures has not previously been used by
international courts or scholars, but we would like to introduce and use it in this
49 Wong Ho Wing v. Peru [2006] IACtHR, and Boyce and Joseph v. Barbados [2007] IACtHR.
50 See, e.g., Criminal Institute Plácido de Sá Carvalho v. Brazil [2018] IACtHR; Curado Complex (in
Recife) v. Brazil [2016] IACtHR; Inmates in the Urso Branco Prison v. Brazil [2002] IACHR.
51 In the Boyce and Joseph v. Barbados case, the Inter-American Court granted provisional meas-
ures to protect four individuals who had been sentenced to death. The orders for execution had al-
ready been read out and the executions were scheduled four days after the request. Due to the urgency
of the matter, the IACtHR issued the provisional measures on the same day that they were requested.
See Boyce and Joseph v. Barbados [2004] IACtHR, para. 4, decides para. 1. The Inter-American
Court’s time frame depends on the circumstances of the case. See Clara Burbano Herrera, Provisional
Measures in the Case Law of the Inter-American Court of Human Rights (Intersentia 2010), 96.
52 For example, in the Matter of Certain Venezuelan Prisons, the provisional measures that were
adopted in 2006 have been maintained through 2020. See Matter of Certain Venezuelan Prisons
v. Venezuela [2007] IACtHR and Order November 13, 2015. Similarly, provisional measures were
adopted in 2002 to protect the inmates in the Urso Branco Prison in Brazil, and they were only
lifted in 2011. See Inmates in the Urso Branco Prison v. Brazil [2002] IACtHR and Order August 25,
2011. Provisional measures were also adopted to protect Humberto Prado in 2009, and they are
still maintained in 2020. See Matters of Certain Penitenciary Centers of Venezuela. Humberto Prado.
Marianela Sánchez Ortiz and family v. Venezuela [2020] IACtHR, para. 3.
context. We define transformative provisional measures as provisional meas-

ures that have the following characteristics:53 (i) they target structural problems,
(ii) they aim to protect several persons in situations of extreme gravity and ur-
gency, and (iii) they contain orders that must be complied with by more than
one State entity. Transformative provisional measures aim to protect the rights
of several people who are collectively in danger while also preventing human
rights violations. Transformative provisional measures arise out of structural
problems, that is, situations in which State authorities have consistently failed
to respect, protect, and fulfill the rights of historically marginalized groups. As
in Claudio Nash and Constanza Núñez’s research on structural judgments, in
this context, cultural norms maintain dominant political and legal structures
and obscure the experiences of vulnerable groups.54 Finally, coordinated action
and participation of various State authorities is required to comply with trans-
formative provisional measures. The human rights situation cannot be addressed
with a single provisional measure targeting a single authority or requesting a
single public policy, because a complex institutional framework has generated,
enabled, and perpetuated the structural problems involved.55
The conditions of detention in some Latin American prisons illustrate
structural problems which transformative provisional measures can address
and potentially alleviate. As reports and decisions adopted by the UN Special
Rapporteurs and regional human rights mechanisms reveal, some Latin
American prisons do not comply with the minimum international human rights
standards.56 These deplorable detention conditions are not the result of isolated
53 Clara Burbano Herrera, Yves Haeck, and Alessandra Cuppini, “Transformative Provisional
Haeck (eds.), Human Rights Behind Bars. Ius Gentium: Comparative Perspectives on Law and
Justice, vol. 103 (Springer 2022), 146 ff.
54 According to Nash and Núñez, there are two reasons for State inaction: (a) States that do not
act for ideological reasons, for which the establishment of fundamental rights has not been suffi-
cient to mobilize internal political decisions; and (b) States that do not have the capacity to act be-
cause they do not have territorial control or economic resources, or are captured by interest groups.
See Claudio Nash and Constanza Nunez, “Sentencias Estructurales Momento de Evaluacion, Sobre
los Derechos Sociales” [2015] Revista de Ciencias Sociales (Volumen Monografico Extraordinario),
267–289. The authors refer to Jonathan Di John, “Conceptualización de las causas y consecuencias de
los Estados fallidos: una reseña crítica de la literatura” [2010] 37 Revista de Estudios Sociales 46–86;
Daniel Kaufmann et al., Captura del Estado, Corrupción, e Influencia en la Transición, Trabajo de
Investigación de Políticas (Banco Mundial 2000), 1–39.
55 Ibid., Nash and Nunez, 284.
56 See, for example, Preliminary observations and recommendations, UN Special Rapporteur on
torture and other cruel, inhuman, or degrading treatment or punishment, Mr. Nils Melzer on the
official visit to Argentina, April 9–20, 2018: the Rapporteur mentions that the conditions of deten-
tion in Argentina severely contravene international standards and are incompatible with human dig-
nity, <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22974&LangID=
E> (accessed November 10, 2021). See also UN Report of the Special Rapporteur on torture and
incidents. They are instead the consequence of enduring, systemic problems

with prison systems in the region.
Structural problems in prisons affect detainees collectively and have prompted
them join together in their requests for provisional measures from the IACtHR.
These requests for provisional measures enable detainees to demand that the State
addresses detention conditions. The Inter-American Court similarly aims, when
it responds to these requests with orders of provisional measures, to prompt the
State toward the fulfillment of its international commitment to respect the human
dignity of persons deprived of liberty. When State authorities implement the pro-
visional measures ordered by the IACtHR, these measures are shown to be a legal
(normative) tool and not a mere formality. The Inter-American Court also issue§s
orders that not only seek to protect the detainees who made the request but also to
transform detention conditions more broadly.
5. Detention Conditions of Persons Deprived of Their

Liberty in Latin America through the Lens of Transformative
Provisional Measures
For decades, the treatment of the prison populations in some Latin American coun-
tries, and in Brazil in particular, generally has been degrading and inhumane. In
spite of Latin American countries’ tradition of espousing human rights rhetoric
in their engagement with the international community and even in spite of do-
mestic legislation incorporating their international commitments to rights, State
authorities often fail to respect, protect, and fulfill individuals’ rights to equality and
dignity of individuals. For example, States sometimes act as though the right to dig-
nity belongs not to all individuals, but only to deserving individuals, among whom
they do not include persons deprived of liberty.
Several Latin American prisons have structural problems that affect their en-
tire populations. When detainees from these prisons have requested provisional
measures, the ones the Inter-American Court has granted have been trans-
formative. The IACtHR sees prisoners as a group that is at risk of human rights
violations. These risks generally concern critical overcrowding, high levels of
violence, lack of control by prison authorities, insalubrity, spread of contagious
other cruel, inhuman, or degrading treatment or punishment on his mission to Brazil, January 26,
2016, <https://digitallibrary.un.org/record/831519?ln=en#record-files-collapse-header> (accessed
November 10, 2021); UN Report of the Special Rapporteur on torture and other cruel, inhuman,
or degrading treatment or punishment, Juan E. Mendez. Follow-up to the recommendations made
by the Special Rapporteur to previous country visits (with regard to Uruguay), February 28, 2013,
paras. 80–81, <https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Sessio
n22/A.HRC.22.53.Add.3_ES.pdf> (accessed November 19, 2022).
infections, lack of access to health services, and death.57 Several examples

show the terrible conditions of prisons in Brazil. For example, in the case of the
Penitentiary Complex of Curado (Brazil), the Inter-American Court found that
detention conditions had not improved between the time it had ordered an ini-
tial set of provisional measures in 2014 and the time it revisited the situation in
2018. The IACtHR observed that the prison remained overcrowded, with a den-
sity exceeding 200 percent.58 Similarly, the Inter-American Commission granted
precautionary measures in the case of the Inmates at the Polinter Police Station in
Rio de Janeiro (Brazil), where 1,000 detainees, including young offenders, were
held even though the police station had a capacity of only 205 persons.59 In the
case of the Criminal Institute of Plácido de Sá Carvalho (Brazil), the prison had a
capacity of 1,699, but contained 3,820 detainees.60 In the case of the Urso Branco
Prison (Brazil), the IACHR granted precautionary measures responding not only
to the terrible detention conditions but also to the conflicts among the prisoners
as well as a massacre resulting in the deaths of over 30 prisoners.61
Children deprived of liberty have also faced situations of extreme danger
in Brazilian prisons.62 Children are particularly vulnerable to violence in pen-
itentiary circumstances. As a result, the Inter-American Court has granted
provisional measures to protect all the children imprisoned in the case of the
Socio-Educational Internment Facility (Brazil)63 and the case of Children and
Teenagers Deprived of Liberty in the “Complexo de Tatuapé” of FEBEM (Brazil).64
The Inter-American Commission had previously issued precautionary measures
in the Complexo de Tatuapé case following allegations of violent acts, including
57 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR, paras. 3, 37; Detainees at
Toussaint Louverture Police Station in Gonaïves v. Haiti [2008] IACHR, 144/07; Penitentiary Services
Buenos Aires Province v. Argentina [2012] IACHR, 104/12.
58 Penitentiary Complex of Curado v. Brazil [2018] IACtHR, paras. 80–81. See also Penitentiary
Complex of Curado v. Brazil [2014, 2015, 2016, 2017] IACtHR.

59 Men deprived of freedom in the cells located in the basement of Polinter Police District in Rio de
Janeiro v. Brazil [2005] IACHR.

60 Criminal Institute Plácido de Sá Carvalho v. Brazil [2018] IACtHR, para. 17.
61 The forty-seven survivors were at risk of being killed. See Inmates in the Urso Branco Prison
v. Brazil [2002] IACHR.

62 The American Declaration of the Rights and Duties of Man and the American Convention pro-
vide for the protection of children but do not define the term “child.” The Inter-American Court
and Inter-American Commission have established that the definition of a child is based on Article
1 of the UN Convention on the Rights of the Child. As such, “child” refers to any person who has
not yet turned eighteen years of age. See IACtHR, Juridical Condition and Human Rights of the
Child, Advisory Opinion OC-17/02, August 28, 2002, para. 42; Villagran Morales (Street Children)
v. Guatemala [1999] IACtHR, para. 188; Bulacio v. Argentina [2003] IACtHR, para. 133.
63 Unidade de Internação Socioeducativa (la Unidad o la UNIS) v. Brazil [2011, 2012, 2013]
IACtHR. See also the Resolutions adopted by the President of the IACtHR on September 26, 2014,
June 23, 2015, and November 15, 2017.
64 The Court also ordered the State to protect the lives of all of the individuals within the com-
pound. Matter of Children and Adolescents Deprived of Liberty in the “Complexo do Tatuapé” of
FEBEM v. Brazil [2006] IACtHR.
the death of Roni César de Souza.65 A continuous lack of security and control
by the prison staff showed that the State had not satisfactorily fulfilled its obli-
gation to prevent attacks against the life and personal integrity of imprisoned
children.66 Since the situation did not improve and the children faced increasing
dangers, the Inter-American Court adopted provisional measures in 2005. The
transformative provisional measures adopted by the Court in this case have
remained in place through 2020.67
The problems with the Brazilian prison system have existed for decades.
Overcrowding in the prison system dates back to at least the beginning of the
nineteenth century.68 Additionally, at the Twelfth UN Congress on Crime
Prevention and Criminal Justice in 2010, the President of the Supreme Federal
Court of Brazil said that Brazil’s “prison system is on the brink of total collapse.”69
Similar problems to those already described in Brazil can be found in
other Latin American countries, including Argentina, Colombia, Honduras,
Guatemala, and Venezuela. The Inter-American Court has also granted trans-
formative provisional measures in response to requests from persons de-
prived of liberty in these countries. The petitioners have alleged deplorable
prison conditions related to violence and overcrowding. One consequence of
overcrowding is that it becomes difficult to separate inmates by gender, age,
or the seriousness of their crimes. In some cases, a lack of separation between
pre-trial and convicted detainees,70 members of armed groups and common
prisoners,71 members of different armed groups (guerrilla and paramilitary),72
children and adults,73 non-LGBTIQ+and LGBTIQ+detainees,74 non-elderly
and elderly detainees,75 and able-bodied detainees and detainees with a disability
has resulted in conflict.76
65 Ibid., para. 7.
66 Ibid., para. 6.
67 Ibid., and IACHR, 2005 Annual Report, paras. 41–42. See also Matter of Children and Adolescents
Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM v. Brazil [2005, 2006, 2007, 2008]
IACtHR.
68 Clarissa Nunes Maia et al. (eds.), História das prisões no Brasil, vols. I and II (Rocco 2009).
69 Website Consultor juridico, <https://www.conjur.com.br/2010-abr-15/deficiencia-sistema-car
cerario-beira-falencia-total-peluso> (accessed January 2, 2022).

70 Convicted and tried inmates committed to the Penitentiary of Mendoza and its offices v. Argentina
[2004] IACHR.
71 108 inmates in the Maximum Security Prison at Kilometer 14 v. Colombia [2004] IACHR.
72 Political prisoners in buildings 1 and 2 of the National Model Prison in Bogotá v. Colombia,
Precautionary Measures [2000] IACHR (“On April 27, 2000, prisoners belonging to paramilitary
groups detained in cellblock 5 launched a violent attack on prisoners in cellblock 4, killing 47 inmates
and injuring 17 others”).
73 Minors in the San Pedro de Sula Prison v. Honduras [1996] IACHR.
74 Criminal Institute Plácido de Sá Carvalho v. Brazil [2018] IACtHR, para. 48.
75 Ibid.
76 Curado Complex (in Recife) v. Brazil [2016] IACtHR, para. 4.
In the case of the Matters of Certain Venezuelan Penitentiary Centres (Venezuela),77

for which the Inter-American Court ordered comprehensive provisional measures
to a large number of beneficiaries, the IACtHR started to engage with the conditions
of detention in a number of prisons in Venezuela.78 In its orders, the Inter-American
Court required the State to take immediate steps to ensure that no more detainees
would be treated inhumanely or killed. At the same time, the IACtHR ordered
more general measures, such as the separation of pre-trial and convicted detainees,
healthcare to all persons deprived of liberty, reduction of overcrowding, adequately
trained staff, and prison conditions that conform with applicable international
standards. As of the end of 2020, the Inter-American Court is still monitoring this
case and has observed the persistence of violent acts culminating in the deaths of
persons deprived of liberty.79
Several factors contribute to the prison crisis in some Latin American coun-
tries. Although describing all of these problems comprehensively is beyond the
scope of this chapter, one factor appears to be a tendency to expand the use of
criminal law, incarceration, and preventive detention in the face of various so-
cietal issues.80 For example, from 2000 to 2020, the incarcerated population
increased by three times in Colombia, five times in Brazil, and six times in El
Salvador.81 Politicians in power have responded to the popular demand for
77 On September 6, 2012, the Inter-American Court decided to combine the processing of some
requests and established that the joint provisional measures would from then on be known as the
“Matters of Certain Venezuelan Prisons.” The Orders of the IACtHR, of November 24, 2009, in
Monagas Judicial Detention Center (“La Pica”) v. Venezuela, the Penitentiary Center of the Capital
Region Yare I and II (Yare Prison) v. Venezuela, the Penitentiary Center of the Central Occidental Region
(Uribana Prison) v. Venezuela, the Capital Detention Center El Rodeo I and II v. Venezuela of May 15,
2011, in the matters of the Penitentiary Center of Aragua “Tocorón Prison” and of the Ciudad Bolívar
Judicial Detention Center “Vista Hermosa Prison,” as well as of September 6, 2012, the Penitentiary
Center of the Andean Region. See Certain Penitentiary Centers of Venezuela, Penitenciaria Center of
the Central Occidental Region (Uribana Prison) v. Venezuela [2013] IACtHR and Order November
13, 2015.
78 On February 4, 2020, members of the Inter-American Commission were denied entry into
Venezuela. The Commissioners wished to conduct a visit in loco in order to have direct contact with
the beneficiaries of precautionary measures. See <https://www.oas.org/en/IACtHR,/media_center/
PReleases/2020/020.asp> (accessed January 2, 2022).
79 Venezuela denounced the American Convention on September 10, 2012.
80 For studies related to prison problems in the Americas, see Ely Aharonson, “Pro-Minority.
Criminalization and the transformation of visions of citizenship in contemporary liberal

democracies: A critique” [2010] 13 New Criminal Law Review: An International and Interdisciplinary
Journal 286–308; Gerardo Ramírez Urosa, “Algunas reflexiones en relación con el ‘Derecho penal del
enemigo’ dentro del contexto nacional” [2006] 61 RDFM; Eugenio Raúl Zaffaroni, El enemigo en el
derecho penal (Dykinson 2006), 198; Douglas Husak, Overcriminalization: The Limits of the Criminal
Law (Oxford University Press 2008), 248; David W. Garland, The Culture of Control: Crime and Social
Order in Contemporary Society (University of Chicago Press 2001), 336; John Barry, “From drug
war to dirty war: Plan Colombia and the US role in human rights violations in Colombia” [2002] 12
Transnational Law & Contemporary Problems 161.
81 International Centre for Prison Studies, World Prison Brief, Institute for Crime and Policy
Research, <https://www.prisonstudies.org/world-prison-brief-data> (accessed January 2, 2022);

Mario Andrés Torres and Libardo José Ariza, “Jueces y prisiones en la era del encarcelamiento
security with repressive measures, such as harsher punishments and excessive

and prolonged use of pre-trial detention.82 These measures are ostensibly geared
to prevent crimes, but, in the long term, the use of prison and preventive deten-
tion does not solve the problem of insecurity outside and inside prisons. In spite
of their ineffectiveness, these measures enjoy great popularity with voters and
strengthen the legitimacy of governments.
A repressive policy of criminalization results in the exclusionary treatment of
the prison population, which becomes marginalized and stigmatized. This policy
casts detainees as antisocial and inhuman. As a result, the interest of society is
not aroused by the indignities, such as overcrowding, the many persons deprived
of liberty face. The excessive and prolonged use of incarceration and pre-trial
detention contributes greatly to overcrowding and its negative consequences.
Preventive detention may also violate the principles of presumption of inno-
cence, legality, necessity, and proportionality, as well as the fundamental prin-
ciple that criminal law and criminal punishments, especially imprisonment,
should be a last resort.83 Another factor that contributes to the failure of deten-
tion centers to meet minimum international standards is that increases in prison
populations are not accompanied by proportional increases in prison systems’
budgets.84
6. Case Study: Criminal Institute of

Plácido de Sá Carvalho v. Brazil
In 2017, the Inter-American Court granted transformative provisional measures

to protect the life and integrity of all persons deprived of liberty at the Criminal
Institute of Plácido de Sá Carvalho.85 State authorities told the IACtHR that the
challenges faced by the Institute were not unique but were instead shared by the
entire penitentiary system of the State of Rio de Janeiro.86
masivo,” in Jonathan Simon, Libardo José Ariza, and Mario Andrés Torres (eds.), Encarcelamiento
masivo, Derecho, raza y castigo (Siglo del Hombre Editores 2020), 268.
82 6.3 average in the region, IACHR Report 2017 “Measures to Reduce Pretrial Detention,” 22.
83 Clara Burbano Herrera, Yves Haeck, and Alessandra Cuppini, “Transformative Provisional
Haeck, Human Rights Behind Bars. Ius Gentium: Comparative Perspectives on Law and Justice, vol.
103 (Springer 2022), 148.
84 DeJusticia, “Sistemas Sobrecargados, Leyes de drogas y cárceles en América Latina” [2010],
<https://www.dejusticia.org/publication/sistemas-sobrecargados-leyes-de-drogas-y-carceles-en-
america-latina/> (accessed January 2, 2022).
85 The Socio- Educational Internment Facility of the Penitentiary Complex of Curado, of the
Penitentiary Complex of Pedrinhas and the Criminal Institute of Plácido de Sá Carvalho v. Brazil
[2017] IACtHR.
86 Criminal Institute of Plácido de Sa Carvalho v. Brazil [2018] IACtHR, para. 3.
In the transformative provisional measures, the Inter-American Court or-

dered Brazil to reduce overcrowding,87 assess the overall situation, and create
a plan for the structural reform of the Institute. The IACtHR requested permis-
sion from the State to conduct an on-site visit to the Institute88 and to organize a
public hearing89 to monitor the implementation of its provisional measures. In
the months that followed, in spite of the provisional measures issued, the situa-
tion of extreme gravity persisted.90 The detention facility was confronted with
serious problems, including overpopulation, lack of medical care, and absent
services. Additionally, fifty-six detainees had died within two years and, in most
of these cases, the cause of death was unknown.91
Since the persons deprived of their liberty in the Institute remained in a situa-
tion of extreme danger even after it had granted an initial set of provisional meas-
ures, the Inter-American Court issued another order of provisional measures in
2018.92 The order showed that the IACtHR was aware it faced legal and prac-
tical limits, but also that it continued to seek concrete improvements in detention
conditions. The Inter-American Court also noted that Brazil’s prison crisis was
not unique, comparing it to structural problems common to other prisons in
the Americas. The IACtHR explained how the domestic courts of other States of
the Organization of American States (OAS) and other international monitoring
bodies had responded to prison crises and took into account domestic and inter-
national jurisprudence when designing provisional measures for the Institute.
In its 2018 order of transformative provisional measures, the Inter-American
Court stated that the measures Brazilian authorities had adopted in 2017 had
been ineffective.93 The IACtHR emphasized that it was not enough for the State
merely to adopt specific protection measures. In order to comply with its human
rights obligations, the State must take effective action that generates positive
results.94 The Inter-American Court analyzed the situation of persons deprived
of their liberty in the Institute alongside the jurisprudence of three supreme or
87 The Socio- Educational Internment Facility, of the Penitentiary Complex of Curado, of the
Penitentiary Complex of Pedrinhas and the Criminal Institute of Plácido de Sa Carvalho v. Brazil
[2018] IACtHR, para. 3 and Provisional Measures August 31, 2017, para. 28.
88 President of the IACtHR, Seventeen Persons Deprived of Liberty v. Nicaragua, Urgent Measures
May 21, 2019, paras. 18 and 19.

89 The Socio- Educational Internment Facility, of the Penitentiary Complex of Curado, of the
Penitentiary Complex of Pedrinhas and the Criminal Institute Plácido de Sa Carvalho v. Brazil [2017]
IACtHR, para. 4; President of the IACtHR, Seventeen Persons Deprived of Liberty v. Nicaragua,
Urgent Measures, May 21, 2019, paras. 18 and 19.
90 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2017] IACtHR, para. 3.
91 Ibid., para. 5; and Criminal Institute of Plácido de Sa Carvalho v. Brazil [2018] IACtHR, para. 40.
92 The Socio- Educational Internment Facility of the Penitentiary Complex of Curado, of the
Penitentiary Complex of Pedrinhas and the Criminal Institute Plácido de Sá Carvalho v. Brazil [2018]
IACtHR, para. 1.
93 Ibid., para. 84.
94 Ibid., para. 63; Criminal Institute Plácido de Sá Carvalho v. Brazil [2017] IACtHR, para. 67.
constitutional courts of OAS States that had addressed similar situations, namely
the Constitutional Court of Colombia,95 the Supreme Court of the United
States,96 and the Supreme Federal Court of Brazil.97 The IACtHR also took into
account the jurisprudence of the European Court of Human Rights (European
Court, or ECtHR);98 Brazilian law99 and policy;100 the UN Standard Minimum
Rules for the Treatment of Prisoners (“Mandela Rules”);101 and the IACHR’s
Principles and Best Practices on the Protection of Persons Deprived of Liberty
in the Americas.102
The IACtHR refers extensively to the jurisprudence of the Colombian
Constitutional Court for its finding that overcrowding is the first problem to be
resolved in detention centers because of its terrible effects.103 According to the
Colombian Constitutional Court, overcrowding leads to increased health risks and
the spread of diseases and infections, thus adding strain to an already overburdened
healthcare system.104 Overcrowding also increases the risk of violent conflicts
and decreases the capacity of prison guards to maintain control. The Colombian
Constitutional Court understands prison overpopulation to result from excessive
incarceration. It has determined that the overuse of criminal law and imprison-
ment is unsustainable in a social and democratic State abiding by the rule of law
due to the costs it imposes on fundamental rights, social cohesion, and scarce public
resources.105
A solution to overcrowding, according to the Constitutional Court of
Colombia, must strike a balance between individuals’ right to due process
of law, on the one hand, and a State’s obligations to prevent crimes and re-
spect for judicial decisions, on the other.106 Overcrowding must be re-
solved with prudent judicial policies and individualized107 (as opposed to
95 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR, paras. 98–102.
96 Ibid., paras. 103–107; Edmund G. Brown Jr., Governor of California, et al., Appellants v. Marciano
Plata et al., Supreme Court of the United States, No. 09–1233, On Appeal from the US District Courts
for the Eastern District and the Northern District of California.
98 Ibid., paras. 108–112, referring to Torregiani et al. v. Italia [2013] ECtHR, para. 65.
99 Resolutions N14/1994, and 09/2011 of the CNPCP; Ley de Ejecución Penal (Ley No. 7.210/
84); Ministerio de Salud y Ministerio de Justica, Portaría Interministerial, No. 1777, September 9,
2003; Consejo Nacional de Política Criminal y Penitenciaria (CNPCP), Resolutions No. 04/2014,
July 18, 2014, and 02/2015, October 29, 2015; Consejo Nacional de Política Criminal y Penitenciaria
(CNPCP).
100 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR, paras. 8–13. The State
submitted: “Diagnostico Tecnico y Plan de Contingencia para el Complejo de Curado.”

101 The UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), adopted by
the United Nations, General Assembly in Resolution A/RES/70/175, May 18–22, 2015, Rules 19–21.
102 IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas, OAS/Ser.L/V/II.131 Doc. 38, March 13, 2000, Principle XII.

104 Ibid., para. 98.
105 Ibid., paras. 98–102.
automatic)108 decisions to release detainees.109 Relatedly, the State has to imple-

ment policies that facilitate these releases.110 The terrible conditions in the deten-
tion centers do not create a right of automatic release, since this would prevent
the State from considering its obligations to the victims of the prisoners’ crimes
as well as to society.111
The Constitutional Court of Colombia emphasizes that the solution to the
problem of overcrowding not only requires the construction of new prisons but
can also be addressed by reducing the number of people deprived of liberty.112
The Court notes that there are persons who remain in prison despite there
being constitutional and legal reasons for them to be released, such as age, se-
rious terminal illness, or requests for release that have yet to be processed.113
According to the Colombian Constitutional Court, the continued imprisonment
of individuals who could be released114 signals that building more prisons will
not solve the problem of prison overpopulation.115
According to the IACtHR,116 the most significant judgment concerning de-
tention conditions in the Americas was issued by the Supreme Court of the
United States in 2011 in response to grave rights violations in the Californian
penitentiary system.117 The California prison population had a 200 percent
density during at least eleven years, with conditions of overcrowding similar
to those of the Institute.118 In that context, two class actions were submitted to
the Federal District Courts: the Coleman v. Brown case, brought on behalf of
prisoners with serious mental disorders, and the Plata v. Brown case, brought
on behalf of prisoners with serious medical conditions.119 The District Court or-
dered California to reduce its prison population to 137 percent over the course of
two years. The State of California appealed the case to the Supreme Court of the
United States. The majority (five to four) in the case said:
108 Ibid., para. 100.

110 Ibid., para. 101.
111 Ibid., para. 101.
114 Ibid. Individuals who should not be in custody include those detained without charge, those ar-
bitrarily detained, and those detained for offenses that should not be criminalized. See Subcommittee
on Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
Advice of the Subcommittee on Prevention of Torture to States Parties and National Preventive
Mechanisms relating to the Coronavirus Pandemic (adopted on March 25, 2020), <https://www.
ohchr.org/Documents/HRBodies/OPCAT/AdviceStatePar tiesC oronavirusPandemic2020.pdf>
116 Ibid., para. 103.
117 Edmund G. Brown Jr., Governor of California, et al.; Appellants v. Marciano Plata et al. US
Supreme Court, No. 09–1233, On Appeal from the US District Courts for the Eastern District and
the Northern District of California.
118 Criminal Institute of Plácido de Sa Carvalho v. Brazil [2018] IACtHR, para. 104.
119 Ibid.
For years, the medical and mental health care provided by California prisons
has not met the minimum constitutional requirements and has not met the
basic health needs of inmates. Unnecessary suffering and death have been
well-documented. Throughout the years during which this litigation has been
pending, no other sufficient resources have been found. Efforts to remedy
the rape have been thwarted by severe overcrowding in the California prison
system. The short-term benefits of care delivery have been eroded by the long-
term effects of severe and widespread overcrowding.120
The IACtHR noted that the US Supreme Court also indicated that
overcrowding was the primary cause of severe and illegal mistreatment of
prisoners as a result of inadequate medical care. The Supreme Court held that,
in order to protect the prisoners’ constitutional rights, the state was required to
limit the prison population. Additionally, in the case, many experts stated that
overcrowding was the main cause of constitutional violations.121
The IACtHR also considered judgments from the European Court and the
Supreme Federal Court of Brazil. In relation to the ECtHR, the Inter-American
Court mentioned that in the case of Torregiani et al. v. Italy, the European
Court determined that the detention conditions were incompatible with the
European Convention on Human Rights (European Convention, or ECHR).
The ECtHR ordered Italy to create a procedure with preventive and compen-
satory effects, as well as to guarantee an effective remedy for violations of the
European Convention.122 In relation to Brazil, the Inter-American Court
discussed a case123 concerning overcrowding.124 In this case, the Supreme
Federal Court of Brazil ruled that, in contexts of overcrowding and overpop-
ulation, judges should consider ordering early release, probation, or house
arrest.
Returning to the facts of the case before it, the Criminal Institute of Plácido
de Sá Carvalho v. Brazil, the Inter-American Court determined that a situation
120 Ibid.
121 Ibid.
122 Torregiani and others v. Italy [2013] ECtHR, para. 88 (“In general, these data reveal that the vio-
lation of the right of applicants to benefit from adequate detention conditions is not a consequence of
isolated incidents, but is due to a systemic problem resulting from chronic malfunction of the Italian
prison system, which affected and may still interest many people in the future [ . . . ]. According to the
European Court, the situation established in this case is therefore constitutive of a practice incom-
patible with the European Convention on Human Rights”). See Criminal Institute of Plácido de Sá
Carvalho v. Brazil, Provisional Measures November 22, 2018, Considering para. 106.
123 Súmula Vinculante No. 56 of the Supreme Federal Court of Brazil, 2016.
124 This decision is binding and mandatory for all judges, courts, and administrative entities. It
can only be modified by the Supreme Federal Court of Brazil itself. Criminal Institute of Plácido de Sá
Carvalho v. Brazil [2018] IACtHR, para. 110.
that risked causing irreparable damage to the personal integrity and life of the
beneficiaries of the provisional measures persisted in the prison and required
the IACtHR to order specific measures to preserve these rights.125 According
to the Inter-American Court, reducing the prison population of the Institute
was the only way to end this situation of risk. The IACtHR also stated that the
Supreme Federal Court of Brazil’s binding judgment on this matter126 applied
to the prisoners in the Institute.127 As such, judges are required to consider
early release, probation, or house arrest for these prisoners.128 Additionally,
following the reasoning of the Constitutional Court of Colombia, the Inter-
American Court stated that if, hypothetically, the conditions in the Institute
violated ACHR Article 5(2), this violation could not be remedied through the
construction of new prisons because, first, the State had no immediate plans
to construct new prisons and, second, the State itself had claimed it lacked
the resources to do so. The IACtHR also stated that the situation could not
be resolved through transferring prisoners from the Institute to other prisons,
since the other prisons did not have the capacity to receive more prisoners and
would themselves be overcrowded.129 The Inter-American Court thus deter-
mined that “the only way to stop the continuation of the situation that will
eventually violate the American Convention is to seek to reduce the population
of the Curado Complex.”130 This was the first time the IACtHR had asserted
that building new detention centers or transferring detainees would not solve
the problem at hand.
The Inter-American Court also stated that the poor conditions of deten-
tion make unlawful deprivations of liberty that might otherwise be lawful.
Detainees are experiencing more harm than is inherent in a lawful depriva-
tion of liberty. Given this, the IACtHR suggested that prisoners’ sentences be
reduced to account for the additional harm they undergo.131 In the case of
the Institute, the Inter-American Court reached the unprecedented conclu-
sion that, given that the prison had a population density double its capacity,
every day of deprivation of liberty in the Institute must be counted twice to-
ward the completion of each prisoners’ sentence. The IACtHR also did not ex-
clude the possibility of early release, probation, and house arrest, alternatives
125 Ibid., para. 116.

126 Súmula Vinculante No. 56 of the Supreme Federal Court of Brazil, 2016.
128 Ibid., para. 115; Súmula Vinculante No. 56 of the Supreme Federal Court of Brazil, 2016.
129 Ibid., paras. 115–116.
130 Ibid., para. 120.
mentioned by the Supreme Federal Court of Brazil in the 2016 case discussed
previously.132
According to the Inter-American Court, the situation at the Institute could
also lead to a violation of Article 5(6) ACHR, since terrible detention conditions
impede the reform and rehabilitation of individuals deprived of their liberty.
Degrading conditions affect prisoners’ self-esteem.133 The fact that the Institute
is controlled by dominant violent groups also results in the humiliation of
detainees, a serious deterioration of their self-perception and self-esteem, and a
high risk of recidivism.134
In sum, the Inter-American Court has determined that the conditions at
the Institute make the punishment degrading135 and that when the conditions
in a prison deteriorate to this point as a result of overpopulation and its
effects, the deprivation of liberty itself becomes unlawful.136 This determina-
tion could be seen as the IACtHR prejudging the merits of the case. It could
also be seen, however, as the Court searching for a way to order transforma-
tive provisional measures that will result in effective protection for detainees
who live in deplorable conditions and have done so, in some cases, for many
years. Concretely, the Inter-American Court ordered the measures listed in
Table I.8.1.137
The Inter-American Court clarified that the potential release of prisoners
convicted of, or charged with, crimes against life or physical integrity and sex
crimes needed to be handled more carefully.138 These cases require a tech-
nical criminological examination or examination of the cause of the detainees’
conduct performed by experts.139 The IACtHR also emphasized that its juris-
diction in this case was limited to the Institute and the persons deprived of
liberty there, so the order of provisional measures does not have an erga omnes
effect.140
132 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR, enacting paras. 2, 4. See
also the case of Milagro Sala v. Argentina, in which the Inter-American Court requested that the State
replace Mrs. Sala’s preventive detention with the alternative measure of house arrest to be carried out
at her residence or the place where she usually lives, or by any other alternative measure to pretrial
detention that is less restrictive of one’s rights than house arrest. Milagro Sala v. Argentina [2017]
IACtHR, para. 33.
133 Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR, para. 87.
134 Ibid., paras. 87–88.
137 Table elaborated by the authors.
138 Ibid., para. 131.
139 Ibid., para. 133.
140 Ibid., paras. 121–122.
Table I.8.1 Measures ordered by the Inter-American Court of Human Rights in the case
Criminal Institute of Plácido de Sá Carvalho v. Brazil [2018] IACtHR.
Structural problem Measure ordered
Deaths High number of deaths: 56 deaths To take measures to prevent more

in two years. deaths and to report what these
specific measures are.
Lack of information concerning the To investigate the causes of the
causes of the deaths.a deaths and to inform the next of kinb
Mortality higher than the free and the IACtHR.
population.
One doctor for over 3,000
prisoners.
Infrastructure Absence of a fire prevention and To adapt the infrastructure
response plan. conditions to those minimally
necessary to provide a decent life.c
Nine people responsible for the To remodel all the prison pavilions.
safety of 3,800 detainees. To install emergency lighting, a
Insufficient provision of mattresses, fire detection system, and an alarm
uniforms, footwear, bedding, and system.
towels to detainees. To implement the provisions of Law
No. 7.210/84.d
Absence of adequate lighting and
ventilation.
Physical insecurity due to
unforeseen fires.
Insufficient funds.
Overcrowding Overpopulation with approximate To reduce the number of prisoners
density of 200%. through counting each day of
Overcrowding in cells. deprivation of liberty twice.
Personal and physical insecurity To adjust the number of guards so
resulting from the disproportionate it would be proportionate to the
ratio of personnel to prisoners.e number of persons deprived of
Control of internal order in liberty.
the hands of the prisoners To subject persons deprived of
themselves. The most violent their liberty for crimes against life
generally organized for survival or or physical integrity, as well as sex
self-defense. crimes, to a criminological technical
Insufficient number of judges. Only exam conducted by psychologists
seven judges in the State of Rio de and social workers.
Janeiro oversaw the completion
of sentences of more than 50,000
individuals deprived of liberty.f
a Ibid., para. 61.
b Ibid., para. 62.
c Ibid., para. 68.
d Ibid., para. 69.
e Ibid., para. 79.
f Ibid., para. 72.

Studying the IACtHR’s transformative provisional measures concerning persons

deprived of their liberty in Latin America reveals that countless individuals live
in undignified conditions of detention that are incompatible with international
human rights standards. The Inter-American Court is using these transforma-
tive provisional measures to prompt gStates to change decades-old policies and
practices of criminalization and incarceration. The IACtHR’s transformative
provisional measures concerning detention centers also provide insight into a
structural problem in Latin America, a prison crisis involving overcrowding, in-
salubrity, rapid spread of infections and diseases, high levels of violence, deaths,
lack of control by State authorities, lack of access to medical services, lack of in-
vestigation and punishment, and a lack of funds.141
In its order of provisional measures in the case of the Criminal Institute
of Plácido de Sá Carvalho v. Brazil, the Inter-American Court balances the
right to dignified conditions of detention on the one hand, and States’ obli-
gation to punish those who commit crimes on the other. The IACtHR does
not find that dire prison conditions create an automatic right to be released,
but it does find that persons deprived of their liberty in such conditions un-
dergo a harsher punishment than is inherent to a state of imprisonment and
that their additional suffering must be taken into account by domestic judicial
authorities. Judges can do this by reducing the length of prison sentences in
proportion to the additional pain suffered by the detainees. In the case of the
Institute, the Inter-American Court reasoned that since the population den-
sity of the prison had reached 200 percent (that is, the double of the prison’s
capacity), the suffering of detainees had also doubled and, as such, every day
of deprivation of liberty should be counted twice. The IACtHR also clearly
stated that in the case of Brazil and perhaps in the Americas as a whole, pre-
trial detention is not the solution to criminality, and building more prisons or
transferring detainees to other prisons or detention centers is not the solution
to overcrowding.142
To reach these conclusions, the Inter-American Court relied heavily on do-
mestic jurisprudence, not only from Brazil but also from other OAS member
States, as well as the jurisprudence of the European Court to detect a growing,
global consensus about how to understand and solve the prison crisis.
141 Burbano Herrera and Haeck, “The Innovative Potential of Provisional Measures Resolutions for
Detainee Rights in Latin America Through Dialogue Between the Inter-American Court and Other
Courts,” in Rieter and Zwaan, Urgency and Human Rights, The Protective Potential and Legitimacy of
Interim Measures (2021), 242.
142 Ibid., 243.
I.9
Transformative Impact
A Framework for Analysis
By Mayra Ortiz Ocaña and Aníbal Pérez-Liñán
1. Introduction
This chapter advances a general framework to conceptualize and measure the im-
pact of the Inter-American Human Rights System (IAHRS). Our definition of im-
pact includes the intended and unintended effects of the IAHRS’s instruments in
three settings: practices, structures, and social outcomes. The framework presented
in this chapter acknowledges that a broad set of IAHRS instruments have potential
to generate impact and defines compliance as a (narrow) form of impact.
Understanding the role of the IAHRS requires moving beyond a focus on
compliance to consider multiple ways in which the System affects a variety of
actors and arenas. The authors of this book, as well as other students of the Inter-
American Commission (IACHR)1 and the Inter-American Court (IACtHR),2
have increasingly observed that low levels of compliance with reparations or-
dered by the System have not precluded a transformative influence of the IAHRS
across the region. A growing body of work thus analyzes the various forms of
“impact” created by the IAHRS.3
Unfortunately, a clear definition of impact seems to be missing from the spe-
cialized literature. This void creates a challenge when researchers seek to assess
transformative effects systematically. Moreover, the lack of a coherent definition
complicates the empirical study of this subject. In the following section, we build
on existing literature about national and international adjudication bodies to
provide a definition of impact suitable for analyzing the IAHRS.4
1 Natalia Saltalamacchia Ziccardi et al., “Friendly Settlements in the Inter-

American Human
Rights System: Efficiency, Effectiveness and Scope,” in Par Engstrom (ed.), The Inter-American
Human Rights System Impact Beyond Compliance (Palgrave Macmillan 2019).
2 Patricia Zuloaga Palacios, “Judging Inter-American Human Rights: The Riddle of Compliance
with the Inter-American Court of Human Rights” [2020] 42 Human Rights Quarterly 392.
3 Par Engstrom, The Inter-American Human Rights System: Impact Beyond Compliance (Palgrave
Macmillan 2019).
4 Diana Kapiszewski and Matthew M. Taylor, “Compliance: Conceptualizing, Measuring,
and Explaining Adherence to Judicial Rulings” [2013] 38 Law & Social Inquiry 803; Siri Gloppen,
Mayra Ortiz Ocaña and Aníbal Pérez-Liñán, Transformative Impact In: The Impact of the Inter-American
Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and
Mariela Morales Antoniazzi, Oxford University Press. © Mayra Ortiz Ocaña and Aníbal Pérez-Liñán 2024.
DOI: 10.1093/oso/9780197744161.003.0010
In the third section, we identify the transformative sequence generating impact.

This sequence begins at “moment zero,” when the organs of the IAHRS deploy
particular instruments at their disposal. The first stage of the sequence involves
members of a community of practice appropriating the frames generated by
those instruments to pursue demands about human rights.5 This appropriation
entails a transformation in their sociolegal practices. The second stage involves
an institutional response to the new demands. If the response is positive, there
is a transformation of institutional structures. After State institutions have
embraced a particular interpretation of the frames generated by the instrument
and redefined by the community of practice, the final stage is a transformation
on the ground in the rights of the target population, reflected in social outcomes.
This theoretical framework allows us to think about impact comprehen-
sively and systematically, across multiple analytical moments. However, any
claim about the actual impact of the IAHRS requires an operationalization of
this framework for empirical research. In the fourth section of the chapter, we
provide examples of strategies to empirically test the three different forms of
impact—and the mechanisms behind them. The last section summarizes our
main conclusions.
2. What Is Impact?
There is broad agreement in the field, including the contributors to this volume,
that the IAHRS has had significant impact in the Americas.6 However, a clear def-
inition of impact is missing in the specialized literature. To advance the system-
atic analysis of this issue, we conceptualize impact as the intended or unintended
effects on practices, structures, and social outcomes stemming from adjudicatory
and non-adjudicatory actions by international bodies.
This definition involves three components: an international body, which
takes action through adjudicatory (e.g., court rulings) or non-adjudicatory (e.g.,
country reports) instruments; a sequence of effects, which can be intended or
unintended; and a set of potential transformations (in sociolegal practices, insti-
tutional structures, or social outcomes).
Our definition encompasses the concept of compliance, but it also
accommodates a broad range of indirect and unexpected effects created by the
“Litigating Health Rights: Framing the Analysis,” in Alicia Ely Yamin and Siri Gloppen (eds.),
Litigating Health Rights: Can Courts Bring More Justice to Health? (Harvard University Press 2011).
5 Armin von Bogdandy and René Urueña, “International Transformative Constitutionalism in
Latin America” [2020] 114 American Journal of International Law 403.

6 Engstrom (n. 3).
178 Mayra Ortiz Ocaña and Aníbal Pérez-Liñán
IAHRS. The traditional notion of compliance refers to actions undertaken by

the addressee of a court ruling in order to fulfill the measures ordered by such
ruling.7 Chiara Giorgetti notes that compliance takes place “when the obligated
party acts accordingly to the ruling of a court, by either doing what the court
asked to be done or by refraining from doing what the court prohibited it to do.”8
Thus, compliance refers to the intended behavior of actors involved in a contro-
versy resulting from a legal decision with inter partes effects. In this sense, com-
pliance is a particular form of impact, included in our definition as the intended
effect of an adjudicatory instrument.
However, compliance is a narrow concept that prevents consideration of other
actors (a community of practice beyond the parties in a case), non-adjudicatory
instruments, and unintended transformations beyond the parameters of the
controversy. By incorporating those aspects, our definition makes it possible to
analyze impact beyond compliance.
Our approach is therefore similar to the one advanced by Sandra Botero, who
describes impact as “changes in the ideational, discursive, legal, organizational
and material realm that are attributable to the court ruling and the changes in life
outcomes.”9 Like Botero, we acknowledge that a court order may prompt direct
compliance, as well as indirect effects and changes in rights’ effectiveness beyond
the parties in the case. Unlike Botero, however, our characterization of impact
transcends the adjudicatory role of judicial bodies and unpacks the process by
which international bodies exert influence into a sequence of stages.
According to Botero, the literature on domestic courts has considered two
forms of impact beyond compliance: indirect effects and rights effectiveness.10
Indirect effects are the transformation of social relations or perceptions that
are not ordered by the sentence but still happen as a consequence.11 Thus, in-
direct effects are transformations that go beyond specific court orders in the
case. Scholars addressing the IAHRS often analyze its impact in terms of indirect
effects. For example, Viviana Krsticevic and René Urueña, in this volume, equate
impact to the indirect effects of the standards created by the System’s bodies.
Under this notion, standards, not reparation measures, begin the path toward
impact.
7 Bogdandy and Urueña (n. 5).

8 Chiara Giorgetti, “What Happens after a Judgment Is Given? Judgment Compliance and
the Performance of International Courts and Tribunals,” in Theresa Squatrito et al. (eds.), The
Performance of International Courts and Tribunals (Cambridge University Press 2018), 325.
9 Sandra Botero, Courts that Matter: Judges, Litigants and the Politics of Rights Enforcement
(Cambridge University Press 2023).

10 Botero (n. 9).
11 César Rodríguez Garavito, “Beyond the Courtroom: The Impact of Judicial Activism on
Socioeconomic Rights in Latin America” [2010] 89 Texas Law Review 1669.

Rights effectiveness, in turn, refers to the everyday fulfillment of human

rights.12 Under this notion, impact is related to the quality of life of a broad set
of persons affected by the ruling. Prompted by a legal decision, State action leads
to policy change, and eventually to a greater effectiveness of some rights for a
larger population. Given the scope of such changes, the expected time for them
to occur can be longer than the time for other types of transformations.13
In the IAHRS, the effect of most rulings transcends the specific controversy.
The contributions in this volume consistently support this claim. Our definition
thus incorporates the possibility of unintended consequences to accommodate
indirect effects beyond the scope of the court’s orders, and changes in social
outcomes to accommodate the effectiveness of rights enjoyed by actors who are
not parties in the case.
We differ from Botero in two crucial ways. First, our definition of impact, cen-
tered in the IAHRS, transcends the work of judicial bodies and thus contemplates
non-adjudicatory instruments as potential sources of impact. Second, we con-
ceptualize the process by which the System exerts transformative influence on
domestic audiences as a sequence of stages.
The IAHRS is formed by two distinct bodies: a Commission entrusted with
an individual petition system and with monitoring the human rights situation in
the Continent,14 and a Court with a jurisdictional function and an advisory role
to member States.15 Despite those differences, both bodies rely on adjudicatory
instruments, such as the merits reports issued by the IACHR and the decisions
issued by the IACtHR, and on non-adjudicatory instruments, like the country
reports issued by the IACHR and the advisory opinions issued by the IACtHR.16
Thus, the concept of impact needs to go beyond judicial sentences and include
other instruments related to nonjurisdictional action.
As for the process of influence, we claim that the impact of the IAHRS can
only be understood as a transformative sequence by which adjudicatory and
non-adjudicatory instruments have an effect on practices, structures, and so-
cial outcomes. Effective instruments prompt changes in daily activities and
12 Sandra Botero, “Judges, Litigants, and the Politics of Rights Enforcement in Argentina” [2018]
50 Comparative Politics 169.

13 UN Office of the High Commissioner for Human Rights (OHCHR), Human Rights Indicators: A
Guide to Measurement and Implementation (HR/PUB/12/5 2012), <https://www.refworld.org/docid/

51a739694.html> (accessed November 26, 2022).
14 Aníbal Pérez Liñán, Mariana Brocca, and Isabel Anayanssi Orizaga Inzunza, “Compliance
Agreements in the Inter- American Human Rights System” [2021] Max Planck Institute for
Comparative Public Law & International Law (MPIL Research Paper No. 2021-26).
15 Jeffrey K. Staton and Alexia Romero, “Rational Remedies: The Role of Opinion Clarity in the
Inter-American Human Rights System” [2019] 63 International Studies Quarterly 477.

16 A.A. Cançado Trindade, “La Función Consultiva De La Corte Interamericana De Derechos
Humanos: Naturaleza y Principios 1982– 1987. By M.E. Ventura and D. Zovatto. San José,
Madrid: Instituto Interamericano de Derechos Humanos/Editorial Civitas, 1989. Pp. 463” [1991] 85
American Journal of International Law 420.
discourses of certain groups or individuals in a broader community of practice.

Such changes, in turn, drive shifts in formal rules inside State and non-State or-
ganizations. Lastly, social outcomes reflect the transformation of the population’s
living conditions as a result of this process.
The issues discussed in this section underscore that the IAHRS demands a capa-
cious concept of impact encompassing compliance, acknowledging the importance
of adjudicatory and non-adjudicatory instruments, and conceiving a broad range of
effects as a sequential process. The following section describes the transformative
sequence and its effect on practices, structures, and social outcomes.
3. The Transformative Sequence: From Instruments

to Outcomes
The transformative sequence is the process by which the instruments of the

IAHRS create a path toward impact. The sequence starts at “time zero” when the
Commission or the Court employs an instrument, and it unfolds in three ana-
lytical moments: appropriation, institutional response, and transformations on
the ground. The three moments of this sequence map into three levels of anal-
ysis where impact is manifested: practices, structures, and social outcomes.
Arguably, each stage is necessary to advance to the next level of impact: a change
in practices by relevant actors is needed to achieve structural change, and struc-
tural change is in turn necessary to achieve a transformation in social outcomes.
3.1. Time Zero: The System’s Instruments
The onset of this sequence takes place when the Inter-American Commission or
the Inter-American Court employs an instrument to address a particular situa-
tion and frame it as a human rights matter. As mentioned in the previous section,
instruments can be adjudicatory or non-adjudicatory, and they may fulfill dif-
ferent functions depending on the context of the case. In this section, we discuss
six functions performed the IAHRS’ instruments: directing the State, building
standards, documenting facts, positioning topics, reframing issues, and assisting
local actors. By performing any of these functions, instruments can set in motion
the transformative sequence.
By instruments, we refer to the official means by which international bodies
exert their influence when addressing human rights issues. Adjudicatory
instruments are those used to settle a legal dispute in specific cases.17 In the
17 Courtney Hillebrecht, Saving the International Justice Regime: Beyond Backlash Against
International Courts (Cambridge University Press 2022).

IAHRS, adjudicatory instruments are distinctively employed in the individual

petition system, and take the form of merits reports in the IACHR, precautionary
and provisional measures, and sentences in the IACtHR. Non-adjudicatory
instruments, in turn, transcend the dispute-resolution function, and they are tied
to the system’s advisory and monitoring functions.18 Despite the lack of juris-
dictional effects, non-adjudicatory instruments have great potential for impact
because they develop general human rights principles and inform a community
of practice. The Court’s advisory opinions are an excellent example: as Pablo
Saavedra Alessandri shows in his chapter in this volume, several Constitutional
Courts have used advisory opinions as a central part of their reasoning to rule
in domestic cases. The impact of non-adjudicatory instruments is here directly
traceable, from the advisory opinion to the domestic judgment.
The range of possible instruments deployed by the System varies widely,
from extensive court rulings to brief press releases. The common feature of
all instruments is that they aim to influence human rights issues, but they
do so in different ways. We have identified six functions performed by the
system’s instruments: directing, reframing, documenting, standard-building,
positioning, and assisting. It is essential to point out that the same instrument
can perform multiple functions. For instance, a judgment can give an order to
the parties in the controversy and at the same time create a standard that will be
appropriated by actors who are not involved in the case.
Directing. In the system of petitions and cases, the IACHR (through its
merits reports) and the Inter-American Court (through its judgments) act as
adjudicatory bodies.19 Adjudication requires those bodies to direct the State
on the actions necessary to address a human rights violation. Although merits
reports present such directives as recommendations, and Court rulings do so
as injunctions for reparations, their function is similar. Both instruments effec-
tively command the State to honor its international obligations within the limits
of a legal controversy. As a result, an identifiable actor is expected to comply with
the directive, even though the responsible party can be identified as the overall
State or pinpointed as a specific domestic institution.20
Instruments releasing orders or directives are the starting point of a sequence
that potentially leads to compliance. Judgments and recommendations com-
mand a specific actor to fulfill an obligation; it is immaterial what actors beyond
the controversy do. In this case, victims rely on the order to obtain an institu-
tional response.
18 Cançado Trindade (n. 16).

19 Gerald L. Neuman, “Import, Export, and Regional Consent in the Inter-American Court of
Human Rights” [2008] 19 European Journal of International Law 101.
20 Rachel Murray and Clara Sandoval, “Balancing Specificity of Reparation Measures and States’
Discretion to Enhance Implementation” [2020] 12 Journal of Human Rights Practice 101.

Different instruments express directives in distinctive legal ways. In the case

of the Commission, directives are presented as recommendations. Even without
them having binding effects, they indicate the expected action to take care of
human rights violations. The Court’s case is more straightforward because the
judgments clearly order the State what to do. Also, precautionary and provisional
measures are directing instruments because they require the State to act in ac-
cordance to their terms.
Standard-building. The IACHR and IACtHR, in their labor, develop gen-
eral obligations about human rights and create guidelines regarding how States
should conduct their activities. By employing instruments that order specific
States how to act, the Commission and the Court indirectly construct a set of
standards that show how States, in general, should behave. Instruments perform
a standard-building function when they develop legal principles that can be
reclaimed by parties who are not involved in the controversy. Standard-building
thus differs from directing because there is no explicit target for compliance.
The community of practice appropriates those standards, and leverages them to
foster the legitimacy of particular legal claims. In this volume, Oscar Parra Vera
illustrates how the Supreme Court of Chile used IACtHR’s rulings to substantiate
Alberto Fujimori’s extradition.
When performing the standard-building function, the IAHRS bodies are at
the vanguard of international human rights law. The inter-American standards
have been adopted by domestic courts and other international bodies like the
African Court on Human and Peoples’ Rights or the European Court of Human
Rights.21 As Par Engstrom notes in this volume, the IAHRS is a “human rights
standard-setter.”
As with the directing function, the “time zero” of the transformative se-
quence often takes place when an instrument adjudicating a case articulates a
novel human rights standard. In contrast to the directing function, however,
the impact of the standard-building function manifests itself in parties be-
yond the case, like constitutional courts from other countries or other interna-
tional courts. Moreover, non-adjudicatory instruments, like advisory opinions
or country reports, may set standards and trigger this transformative sequence
without targeting any State.
Positioning. Instruments can also highlight human rights issues that have not
been discussed widely across the region or that have not been acknowledged
as a pervasive problem. Thus, beyond setting legal standards, the IAHRS can
position a topic, bringing it into a regional conversation and making it salient
across the Americas. For example, the case González and others v. Mexico not
21 Wayne Sandholtz, “Human Rights Courts and Global Constitutionalism: Coordination through
Judicial Dialogue” [2021] 10 Global Constitutionalism 439.

only set up a paradigmatic standard about structural discrimination22 but also

established that Mexico had a systematic problem of violence against women. In
constructing the instrument, the Court collected information from multiple ac-
tors and positioned the issue of violence against women as a pervasive problem
in Ciudad Juárez.23
When performing the positioning function, the IAHRS’s bodies do not come
up with topics on their own. Most likely, the System’s users have provided prior
input for the Commission and the Court to realize the importance of the matter.
On this basis, the positioning function involves the use of an authoritative instru-
ment to highlight the topic’s relevance for human rights beyond the specific case.
The positioning function differs from standard-setting because instruments
are deployed for a discursive purpose, not a legal one. Therefore, press releases
and country reports are valuable tools to position issues, even if they fail to
convey specific orders or articulate new standards. In positioning a topic, the
IACHR or the IACtHR delivers a platform for actors in the community of prac-
tice to back up the relevance of their claims about hitherto ignored issues.24
Reframing. The IAHRS plays a relevant function by recasting situations
naturalized as “common problems” as pressing human rights issues. According
to Armin von Bogdandy and René Urueña in this volume, considering the key
features of transformative constitutionalism and the role of the IAHRS as part of
this trend in Latin America, they argue that “the Inter-American Court’s most
profound impact stems from its enabling this reframing.”
One of the best examples of reframing is the conceptualization of structural
discrimination developed by the IACtHR. In its jurisprudence,25 the Court has
argued that the classic differentiation between direct and indirect discrimina-
tion is not enough to address situations based on indirect discrimination.26
The Court thus advanced the concept of structural discrimination to recog-
nize the historical domination and subordination suffered by some groups,
and the actions reproducing such inequalities.27 It further argued that the State
22 Víctor Abramovich, “Responsabilidad estatal por violencia de género: comentarios sobre el
caso Campo Algodonero en la Corte Interamericana de Derechos Humanos” [2010] 6 Anuario de

Derechos Humanos 167.
23 Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations and
Costs [2009] IACtHR, Ser. C No. 205.

24 Eduardo Ferrer Mac-Gregor, “Lhaka Honhat y Los Derechos Sociales de Los Pueblos Indígenas”
[2020] 39 Revista Electrónica de Estudios Internacionales, <https://doi.org/10.17103/reei.39.01>

(accessed July 27, 2022).
25 IACtHR (n. 23).
26 Trabajadores de la Hacienda Brasil Verde v. Brasil. Interpretación de la Sentencia de Excepciones
Preliminares, Fondo, Reparaciones y Costas [2017]. IACtHR, Ser. C No. 337. Separate Opinion Judge
Eduardo Ferrer.
27 Pedro Salazar and Mayra Ortiz Ocaña, “Libre expresión, universidad pública y mundo dig-
ital: reflexiones a propósito de los casos de Nicolás Alvarado y Marcelino Perelló,” in Jesús Rodríguez
Zepeda and Teresa González (eds.), El prejuicio y la palabra: Los derechos a la libre expresión y a la no
discriminación en contraste (CONAPRED 2018).
has special obligations toward members of those groups. This concept offered
a novel frame for a type of discrimination present in everyday life that seemed
to do nothing with the State and, therefore, was not a human rights issue. Once
it was “named” in the Court’s instruments, structural discrimination became a
human rights problem.
Like the positioning function, reframing serves a discursive purpose. The
community of practice can appropriate the new frame and use it for legal and po-
litical demands. The main difference between positioning and reframing is that
in the former, the IAHRS acts as a platform to amplify the discussion of a human
rights topic. When reframing an issue, the IAHRS provides a new conceptualiza-
tion of the issue as a human rights problem.
Documenting. A distinctive role played by the Commission, and to a certain
extent by the Court, is documenting cases of widespread and systematic human
rights violations. This documentation provides support to narratives that differ
from the ones created by powerful actors and serves as evidence for future
processes of justice. With this function, the system’s bodies have assisted local
actors in denouncing gross human rights violations and offered a forum where
their stories are listened to and preserved.
In particular, as Gabriela Kletzel claims in this volume, the Commission
had a prominent role during the military dictatorships in the Southern Cone,
documenting gross human rights violations and echoing the victims’ and
their families’ claims in a period when domestic institutions were not respon-
sive. Moreover, the documentation about human rights violations that allowed
the creation of counternarratives also served to generate evidence against au-
thoritarian regimes. For instance, the IACHR’s country reports were essential
for collecting information about the human rights situation in countries like
Argentina, Chile, Paraguay, and Uruguay during the 1970s. Claudio Grossman,
in this volume, underscores that the Commission “developed extensive fact-
finding investigations to prove gross and mass violations that governments
were denying.” Instruments performing a documentation function can initiate
a transformative sequence if they are appropriated by domestic actors and lever-
aged in their demands for justice.
Assisting. The IAHRS often deploys non-adjudicatory instruments to pro-
vide direct assistance to member States, in order to strengthen local capabilities.
Under this function, the System’s organs engage directly with domestic actors
and transfer knowledge or expertise to address human rights problems. The
Commission and the Court offer guidance to a broad community of practice, in-
cluding State officials, journalists, academics, and human rights activists.
As Joel Hernández Garcia shows in this volume, the Commission has pro-
vided technical aid to both States and civil society to improve capacities. A clear
example of the Commission’s assistance role is the Interdisciplinary Group of
Independent Experts’ work in Mexico. The GIEI (for its acronym in Spanish) was
built as an ad hoc body to help search for the forty-three missing students from
the Rural Normal School “Raúl Isidro Burgos” in Ayotzinapa, Guerrero. It was
entrusted to provide expertise in order to advance the investigations and to find
and prosecute the perpetrators.28 This configuration illustrates a form of hybrid
prosecution in which an international organization collaborates with national
institutions to perform a criminal investigation.29 The GIEI elaborated reports
with the evidence gathered from its work. Those instruments served the victims’
families and the NGOs accompanying them to push their claims with domestic
institutions.
When assisting State agents, the IAHRS appears to activate a straightfor-
ward transformative sequence because it is acting directly at the domestic level.
However, as the example of the GIEI shows, instruments intended to assist do-
mestic actors still need to be appropriated by the community of practice to ini-
tiate an effective transformative sequence.
3.2. First Stage: Appropriation
The first moment of the transformative sequence takes place when particular ac-
tors appropriate the instruments for their purposes. Those actors incorporate the
IAHRS’s directives, standards, positions, frames, documented facts, or technical
guidance into their discourses and everyday practices and leverage them in their
demands to advance human rights.
The notion of a “community of practice” helps us understand the wide variety
of actors who can leverage the System’s instruments. According to Bogdandy and
Urueña, the community of practice “is a group of actors that interact, on the basis
of the Inter-American Convention on Human Rights, to promote their agendas
and to fulfill what they regard as their mandates.”30 This community includes
State agents, like domestic courts, politicians, or civil servants, as well as non-
State actors, such as NGOs, grassroots organizations, and scholars working on
topics related to the IAHRS.
At the appropriation stage, the community of practice becomes the key player
in the transformative sequence. Its members adopt and adapt the novel frames
28 “Agreement between the Mexican State and the Inter-American Commission of Human Rights”
[2014], <https://centroprodh.org.mx/GIEI/?wpdmpro=acuerdo-de-asistencia-tecnica-con-mex
ico> (accessed July 27, 2022).
29 Guillermo Trejo and Camilo Nieto-Matiz, “Containing Large-Scale Criminal Violence Through
Internationalized Prosecution: How the Collaboration Between the CICIG and Guatemala’s Law
Enforcement Contributed to a Sustained Reduction in the Murder Rate” [2023] Comparative Political
Studies, forthcoming, <https://doi.org/10.1177/00104140221139386>.
30 Bogdandy and Urueña (n. 5), 414.
advanced by the System’s instruments and employ them to gain leverage in their
legal and political disputes. During the appropriation phase, it is possible to grasp
the System’s impact on the community’s discursive and everyday practices. The
community of practice takes IAHRS instruments where they are most needed; it
drives the tools on the ground, where they can make a difference.
This set of actors overlaps to some extent with Karen Alter’s “compliance
constituencies,” but it is broader in scope.31 For Alter, compliance constituencies are
actors whose interests align with an international court’s legal interpretation and
use its rulings because they provide legitimacy to their claims. In addition, those
constituencies can use the rulings as leverage for their domestic political disputes.32
Compliance constituencies are crucial for compliance because they appropriate the
court’s ruling and push the State toward implementation.
Compliance constituencies include government officials as well as civil society
actors. The State is not a unitary actor but a heterogeneous entity crossed by intra-
State conflict.33 Thus, public officials often start the transformative sequence when
they invoke an instrument to advance a human rights issue within the State. Along
those lines, Gabriel C.B. Navarro, in this volume, identifies how State officials can be
empowered by IAHRS instruments and use them to overcome institutional resist-
ance from other parts of the State.
Our discussion in this section, however, includes a broader set of actors and
instruments than the ones implied by Alter’s concept. Compliance constituencies
mobilize for the implementation of court rulings. The concept does not easily de-
scribe the appropriation of instruments like country reports, press releases, or
advisory opinions. Bogdandy and Urueña’s notion of community of practice, in
contrast, enables us to analyze an extended set of actors who may not be part of
the litigation, and who may leverage “softer” instruments that do not perform a
directing function.
At this stage, impact manifests itself as a transformation of actors’ discourse
and practices toward human rights topics. Actors incorporate ideas from an in-
strument into their discourse and use those ideas to provide new force to their
arguments. In addition, the System’s directives, standards, positions, frames,
documented facts, or technical guidance may encourage attitudinal change and
thus a new set of socio-legal behaviors. As noted by Botero, a court decision can
31 Karen Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton University
Press 2014).
32 Daniel Naurin and Øyvind Stiansen, “The Dilemma of Dissent: Split Judicial Decisions
and Compliance With Judgments From the International Human Rights Judiciary” [2020] 53
Comparative Political Studies 959.
33 Jessica Rich, State-Sponsored Activism (Cambridge University Press 2019), https:// doi.org/
10.1017/9781108626453.
help with the “effective diffusion of policy ideas and new cognitive paradigms
among governmental actors.”34
In cases in which State officials embrace new ideas from IAHRS instruments,
the analytical boundary between appropriation and structural change (the trans-
formative stage discussed in the next section) may be hard to establish in practice.
When public officials change their practices, it might appear that the State has
changed its structures. Nevertheless, the difference between the transformation
of practices and the transformation of structures is that the former only requires
ideational change among State officials, while the latter also requires codification
into formal institutions. As an example, consider the distinction between the
legal culture of the judiciary and its jurisprudence.35 Legal culture and jurispru-
dence may eventually converge. However, a sector of the judiciary may be open
to the IAHRS—a form of impact verifiable in their attitudes and actions—while
there is still no jurisprudence recognizing a particular instrument.
In conclusion, appropriation is the first mechanism of the transformative se-
quence, and it creates impact by producing change in discourses and sociolegal
behaviors. The community of practice, which includes State and non-State ac-
tors, becomes the key player during this phase, as it adopts and adapts the
System’s instruments to gain leverage in ongoing disputes.
3.3. Second Stage: Institutional Response
The second moment in the transformative sequence is the institutional response

to the actors in the community of practice who leverage IAHRS instruments in
their demands. While most instruments target the State—e.g., they direct the
State to provide reparations or protect vulnerable populations—non-State or-
ganizations may as well respond to those actors, for instance, by adopting new
doctrines of frames.
We define the institutional response as an organizational transformation
guided by the System’s instruments invoked by the community of practice.
The critical actors at this stage are State institutions, universities, human rights
NGOs, and other organizations. The actors of the community of practice ap-
proach these organizations to present their demands, and the institutions regu-
late what proposals materialize into structural change.
The institutional response can be positive or negative. On the positive side,
State officials or other institutions can provide space to the ideas or demands
34 Botero (n. 12).

35 Karina Ansolabehere, Sandra Botero, and Ezequiel Gonzalez-Ocantos, “Conceptualizar y medir
la cultura legal: evidencia a partir de una encuesta a los jueces federales mexicanos” [2022] 29 Política
y Gobierno 1.
articulated by the community of practice and spur organizational change. A pos-

itive response may translate into new legislation, jurisprudence, or educational
curricula. This constitutes a second form of impact: structural transformation
reshaping formal institutions. On the negative side, institutions may ignore the
new demands even if the IAHRS legitimizes them. Moreover, legal mobilization
invoking human rights instruments can incite different degrees of pushback,
from resistance to backlash,36 if there is an inhospitable environment or if the
instrument addresses a sensitive topic.37
An assessment of impact at this level requires a displacement of the analysis
from individual actors to collective institutional frameworks. For instance, the
distinction between State officials acting individually and institutions acting as
legal entities is crucial to understand the difference between impact in practices
and impact in structures. While an individual official might be open to the
IAHRS and incorporate the principles expressed by an instrument in her eve-
ryday practice, it is possible that her institution will not include the same princi-
ples in its regular functioning. However, if the official’s diligence or civil society
pressures lead the institution to incorporate those ideas into the administrative
or legal framework, new principles will apply to all members of the institution.
When impact spreads from individual officials to their organizations, it is pos-
sible to say that ideational change has bred structural transformation.
The chapters in this volume provide multiple examples of impact as structural
change and allow us to identify five institutional arenas where transformations
take place: legislation, jurisprudence, public policy, institutional designs, and
curricular changes.
The adaptation of domestic legislation is a common measure of nonrepetition
ordered by the IACtHR.38 At the same time, this volume documents several
instances in which States that were not part of a legal controversy preemp-
tively changed their legislation to align with IAHRS standards. The behavior of
States altering their domestic legal framework without being ordered to do so
reflects our earlier distinction between directing and standard-building. The
community of practice leverages an instrument directed to a different State and
activates a positive institutional response leading to new legislation. This path
of the transformative sequence is illustrated in this volume by Catalina Botero-
Marino’s analysis of the Claude Reyes case. The case triggered legislative reform
36 Wayne Sandholtz, Yining Bei, and Kayla Caldwell, “Backlash and International Human Rights
Courts,” in Alison Brysk and Michael Stohl (eds.), Contracting Human Rights: Crisis, Accountability,
and Opportunity (Edward Elgar 2018).
37 Hillebrecht (n. 17).
38 Damián González-Salzberg, “Do States Comply with the Compulsory Judgments of the Inter-
American Court of Human Rights? An Empirical Study of the Compliance with 330 Measures of
Reparation” [2013] 13 Revista do Instituto Brasileiro de Direitos Humanos 93.
in Chile but also started a domino effect across Latin America. The case led to
an early wave of reforms codifying the right to access information in Honduras,
Nicaragua, Guatemala, and Uruguay. After the Inter-American Court restated
the principles in Gomes Lund et al. v. Brazil, a second legislative wave took place
in El Salvador, Brazil, Colombia, Argentina, Paraguay, Guyana, and the Bahamas.
Those examples show how the directing and standard-building functions acti-
vate the transformative sequence through different paths.
Jurisprudence is a second arena for structural change. The incorporation of an
IAHRS instrument into local jurisprudence implies that the judiciary is bound
by the terms of the instrument, and all cases decided afterward should follow the
framework provided. There is a change in structures because the judiciary must
collectively abide by new standards. Jurisprudential change may result from two
processes: a unilateral decision directing the State to adopt the new framework,
or a judicial dialogue resulting in standard-building.39 The Inter-American
Court might order domestic judges to exercise control of conventionality on a
particular topic, but there is also the possibility that domestic courts will adopt
and develop IAHRS standards on their own. Multiple contributors to this
volume show how domestic courts have used inter-American standards to sup-
port a judicial decision. For example, Edison Lanza assesses how the standards
about freedom of expression had an impact in the region and were crucial for the
decisions of national tribunals on this matter.
Public policy is the third possible arena of structural transformation. Public
policies involve State action to address social problems; they require allocation
of public resources and regulation of a comprehensive set of actors.40 The IAHRS
promotes the adoption of programs that protect human rights and allocate na-
tional budgets to guarantee access to economic, social, cultural, and environ-
mental rights. For example, in this volume, Silvia Serrano Guzmán demonstrates
how the IACtHR’s decision in Artavia Murillo v. Costa Rica led to the inclusion
of in vitro fertilization (IVF) in the Costa Rican healthcare system. In response
to the Court’s decision, in early 2016 a series of executive decrees authorized
two private healthcare facilities to practice IVF, and eventually led to the estab-
lishment of a Unit of Reproductive Medicine of High Complexity for the Social
Security System in June 2019.
Additionally, there is a change in structures when States modify their insti-
tutional design. For example, the creation of specialized prosecution offices or
39 Jorge Contesse, “The Final Word? Constitutional Dialogue and the Inter-American Court of
Human Rights” [2017] 15 International Journal of Constitutional Law 414.

40 Pierre Lascoumes and Patrick Le Gales, “Introduction: Understanding Public Policy through
Its Instruments—From the Nature of Instruments to the Sociology of Public Policy Instrumentation”
[2007] 20 Governance 1.
the reorganization of executive offices to address human rights issues show how
IAHRS instruments have general implications for the design of State institutions.
Parra Vera provides an illustrative example in this volume. Addressing the
standards on the fight against impunity, the author claims that human rights
instruments have prompted “readjustments of institutional designs, schemes,
directives and other types of measures.” In Colombia, after the ruling in the
Gutiérrez Soler case, the Attorney General and the National Institute of Legal
Medicine and Forensic Sciences issued domestic directives related to torture.
Moreover, the Final Peace Agreement between the State and the FARC guerrilla
group incorporated a Comprehensive System of Truth, Justice, Reparation and
Guarantees of Non-Repetition, including the creation of a Special Jurisdiction
for Peace.
A final, and often overlooked form of structural change is the transforma-
tion of academic curriculums. Bogdandy et al., in this volume, underscore the
need to look at institutions of higher education to ponder impact. Universities
play a vital role in the diffusion of ideas, which become particularly powerful
when they are incorporated as part of regular teaching. When universities
modify their study plans to include topics related to the IAHRS, they prompt
ideational change for future generations of professionals. Educational re-
form qualifies as structural change because the new curriculum regulates
the learning process for students and instructors in the institution of higher
education.
The five above-mentioned arenas document the diversity of mechanisms
by which inter-American instruments can shape structural change. But, as we
argued earlier in this chapter, structural transformation only takes place after
a previous appropriation of those instruments by the community of prac-
tice, which articulates new demands and prompts an institutional response.
The effectiveness of those demands in promoting positive structural change
depends on an array of contextual factors that require systematic empir-
ical study.
3.4. Third Stage: Transformations on the Ground
The third stage in this complex causal sequence yields transformations on the
ground, the final link in the transformative chain. Let us recapitulate: an IAHRS
instrument aiming to influence a human rights situation is appropriated by the
community of practice, which succeeds in prompting an institutional response.
Once structural change is in place, the ultimate form of impact corresponds to
the transformation of social outcomes, a sustained change in people’s lives and in
the enjoyment of rights.
Transformative processes that reach the third phase are the most successful
ones because they change the way local populations experience rights. The rel-
evant population in each case is defined by the function performed by the in-
itial instrument. For example, if the instrument had a directing role and thus
started a sequence toward compliance, the relevant population forms the victims
in the case. If the instrument performed a standard-building role, the relevant
population is a much broader segment of persons who will benefit from the new
standard across the region.
Transformations in social outcomes reflect directly into rights-holders’ living
conditions. For example, in a case related to the violation of access to healthcare,
a successful instrument will direct the State to address the individual situation,
impacting the lives of patients who gain access to the care they need. Moreover,
if the instrument performs a standard-building role, it will impact a larger popu-
lation, as the community of practice promotes the new standard. In this volume,
Saavedra Alessandri and Serrano Guzmán emphasize how the Artavia Murillo
decision transformed the lives of Costa Ricans seeking in vitro fertilization.
Between the ruling in 2012 and the time of their writing, 159 babies had been
born by IVF treatment in Costa Rica.
The Inter- American System therefore has impact at multiple
levels: in sociolegal practices, in institutions, and in social outcomes. Because
transformations on the ground are the last stage of this transformative sequence,
the time required to reach this form of impact might be lengthy. The process
will require the completion of previous stages—appropriation and institutional
change—before changes in social outcomes are feasible. In addition, the prob-
ability of change becomes more uncertain at each stage. It is relatively easy for
the community of practice to appropriate a particular instrument, but it is much
harder to succeed in achieving institutional reform. And even when institutions
respond favorably, reforms do not guarantee that new institutions will properly
achieve the desired outcomes.41
In brief, the last moment of the sequence refers to the transformation of
people’s lives, both objectively and subjectively. This stage corresponds to the
most ambitious notion of impact as social transformation. For example, Cecilia
Bailliet discusses how the Inter-American Court has set standards with potential
to reduce structural violence across Latin America.42 Only after this long trans-
formative chain is it possible to observe actual change that is meaningful for the
citizenry.
41 Daniel M. Brinks, Steven Levitsky, and Maria Victoria Murillo, Understanding Institutional
Weakness: Power and Design in Latin American Institutions (Cambridge University Press 2019).
42 Cecilia Bailliet, The Construction of the Customary Law of Peace: Latin America and the Inter-
American Court of Human Rights (Edward Elgar Publishing 2021), ch. 6.

4. Strategies to Document Impact
In the previous section, we theorized the transformative sequence, connecting

each stage with a particular form of impact. In this section, we discuss empirical
strategies to document impact. We outline common challenges to the identifica-
tion of causality and illustrate empirical strategies based on their ability to assess
the effect of the IAHRS on practices, structures, and social outcomes.
Claiming that a human rights instrument had an effect on the community of
practice, on institutional change, or on the rights enjoyed by the population in-
evitably implies a statement about causation. To validate such claim, it is neces-
sary to verify the consistency between the causal argument and the empirical
evidence. In this regard, the transformative sequence poses three challenges.
First, it is a complex causal process with multiple stages. Transitioning from
each moment in the sequence to the next implies a distinct form of causality.
Thus, analysts may require different empirical strategies to document the causal
mechanisms operating at every step. Second, claiming causality at any stage
requires isolating the effect of the IAHRS from the effect of many other factors
that also shape practices, institutions, or social outcomes. Considering that the
IAHRS is immersed in a context where both domestic and international forces
are at play, any empirical strategy should account for alternative factors that
might influence the outcome. Lastly, causal accounts may document impact at
the level of individual cases, by tracing the process leading to a given transforma-
tion, or at the level of generalized patterns, by documenting the impact of IAHRS
instruments across multiple cases.
The transformative sequence has three moments with their corresponding
forms of impact. We have argued that a transformation in the earlier stages
is necessary to allow for impact in the later stages. For instance, an appropri-
ation of the instrument by the community of practice is necessary to achieve
institutional change. It follows from this structure that strategies to docu-
ment impact may focus on individual stages, on a combination of stages, or
on the “long” transformative chain. An analyst might focus solely on the first
stage, for example, documenting how Indigenous movements modified their
strategies in response to a given decision by the Inter-American Court. Or
she might document impact across all stages, showing that an IACtHR ruling
empowered Indigenous communities to lobby for land reform, which in turn
improved their living conditions. Research design choices, however, come at
a cost. Focusing on any single stage provides greater clarity about the causal
mechanisms involved, but it makes it more difficult to assess the overall im-
pact. Focusing on a longer sequence, on the other hand, allows for a more com-
prehensive picture, but it makes it more difficult to advance plausible claims
about causality.
A second challenge relates to the fact that human rights outcomes can be
explained by factors other than the IAHRS influence. When an instrument
directs the State to the creation of a new policy, other domestic processes also
drive this transformation. The efforts of the community of practice might be
helped by a timely change in the ruling party, or by mass mobilization that does
not have the IAHRS as a source of inspiration. To the extent that any alternative
explanations overlap with the transformative sequence, they will confound the
effects of the IAHRS. Documenting the System’s impact on social outcomes, the
most distant form of impact, is particularly difficult because many variables—
some of them not even under the State’s control—affect the enjoyment of rights.
Botero similarly notes that multiple factors determine how much any right is
realized for a particular population, and that judicial intervention is only one of
the possibilities.43 An economic crisis or a bonanza may also affect to what extent
the State succeeds in guaranteeing a right.
The third challenge is given by the trade-off between documenting impact in
a particular case and documenting patterns of impact across cases. An exercise
in process-tracing may establish, for instance, that a compliance agreement be-
tween Chile and representatives of the victims facilitated the implementation of
reparation measures recommended by the IACHR in the case of Carmelo Soria
Espinoza (2003). But a larger comparative study will be necessary to determine
whether compliance agreements are, in general, effective instruments to prompt
the adoption of the Commission’s recommendations.44 Focus on a single case
may improve the internal validity of the conclusions (i.e., greater certainty on the
mechanisms that produce impact), but a cross-sectional study will improve the
external validity of the study (i.e., the generalizability of the conclusions across
the Inter-American System).
In the rest of this section, we illustrate alternative strategies to study the
IAHRS impact using selected examples beyond this volume. We follow the struc-
ture of the transformative sequence to organize the selected examples, focusing
on distinctive outcomes at each stage.
Documenting change in practices. An empirical strategy to document impact
in the first stage of the sequence requires analysts to assess if some members of
the community of practice appropriate a particular instrument and incorporate
it to their discourse and practices. The measurable outcomes at this stage are ide-
ational changes and the incorporation of instruments to regular activities.
The study of ideational change can employ a wide range of methodologies,
including surveys, text analysis, archival research, or ethnography. For instance,
Karina Ansolabehere et al. administered an online survey to more than 1,100
43 Botero (n. 12).

44 Pérez Liñán, Brocca, and Orizaga Inzunza (n. 14).
Mexican judges to assess their legal culture.45 About 52 percent of judges indi-
cated that they rely on the jurisprudence of the IACtHR in a majority of their
decisions, and 70 percent indicated they have exercised conventionality control.
The authors placed the legal culture of judges in a continuum of “hermeneutic
routines,” with textualist judges less open, and interpretivist judges more open to
the inter-American instruments.
Besides the use of surveys, it is also possible to assess the IAHRS’s impact
on practices through archival research and text analysis, determining whether
documents issued by State agents, civil society organizations, or international
bodies increasingly incorporate a particular instrument.46 Wayne Sandholtz’s
analysis of citation networks, for instance, documents the emergence of a
“global constitutionalism” by showing how the Inter-American Court, the
European Court of Human Rights, the African Court of Human and People’s
Rights, and the UN Committee incorporate each other’s instruments in their
own work.47 In turn, qualitative interviews and ethnography are useful to vali-
date the impact of particular instruments on the community of practice’s daily
work and to understand how instruments are appropriated.48 Process-tracing
may help researchers to reconstruct the process by which the introduction of a
novel instrument ultimately led to the transformation of collective practices in
a particular case.49
Documenting change in structures. Impact at the level of structures requires
a positive institutional response. The measurable outcomes at this stage are
changes of legislation, jurisprudence, public policy, institutional design, or
curricula.
Some of the analytical tools employed to assess appropriation can also be
adapted to assess structural change. Studies using citations, for example, can
easily document transformations in jurisprudence. In their analysis of citation
patterns for thirteen national high courts in Latin America, Ezekiel González-
Ocantos and Sandholtz show that citations to the IACtHR expanded in the
twenty-first century, reaching more than a thousand citations across the region
by 2012. The authors show that IACtHR decisions related to judicial guarantees
(i.e., those referring to Article 8 of the American Convention on Human Rights),
the duty to investigate human rights violations (Article 25), freedom of religion
45 Ansolabehere et al. (n. 35).

46 John Wilkerson and Andreu Casas, “Large-Scale Computerized Text Analysis in Political
Science: Opportunities and Challenges” [2017] 20 Annual Review of Political Science 529.
47 Sandholtz (n. 21).
48 Diana Kapiszewski, Lauren M. MacLean, and Benjamin L. Read, Field Research in Political
Science: Practices and Principles (Cambridge University Press 2015).

49 Stuart S. Glennan, “Mechanisms and the Nature of Causation” [1996] 44 Erkenntnis 49.
(Article 12), and freedom of speech (Article 13) are the most cited by domestic
courts.50
As for legislation and public policy, legislative bills and administrative
regulations typically include whereases expounding the justifications for
policy change. Using text analysis, researchers can conduct a systematic review
of whether laws or policies invoke particular instruments. In turn, qualitative
strategies based on process-tracing allow researchers to unveil the alliances
between State actors and the community of practice to achieve institutional
transformations. For example, Botero underscores the alliance between domestic
courts and civil society in strategies of collaborative oversight,51 and Jessica Rich
underscores the alliance between the bureaucracy and social movements to
adopt public policies in favor of marginalized groups.52
Documenting change in social outcomes. Impact at the level of social transfor-
mation is distinctively difficult to document. The measurable outcomes at this
stage are changes in the living conditions of the target populations and their sub-
jective enjoyment of rights. As we noted earlier, the challenges when analyzing
the most distant outcomes result from the fact that researchers need to recon-
struct the “long” transformative sequence to determine impact. Equally impor-
tant, the long chain of causation also implies that many alternative explanations
may account for aggregate social outcomes, confounding the effects of the Inter-
American System. While qualitative process-tracing may be useful to recon-
struct the long transformative chain in a single case, statistical analysis will be
most useful to isolate the effect of international instruments vis-à-vis alternative
explanations.
Careful qualitative research can reconstruct the long chain leading from
instruments to social outcomes through case studies. It may also expose how
the transformative chain is disrupted. Based on ethnographic fieldwork, Natalia
Koper shows how the Mayangna and Miskito Indigenous peoples in Nicaragua
appropriated the IACtHR’s decision in the Awas Tingni case (2001) to defend
their land rights. Initially, the State responded positively, adopting legislation
(Law 445 of 2003) that established new demarcation mechanisms and procedures
for granting property titles in Indigenous lands. In the end, however, structural
change failed to produce the desired social outcomes, as an increasingly author-
itarian regime used the new legislation to interfere in the election of communal
50 Ezequiel González-Ocantos and Wayne Sandholtz, “Constructing a Regional Human Rights
Legal Order: The Inter-American Court, National Courts, and Judicial Dialogue, 1988–2014” [2021]
19 International Journal of Constitutional Law 1559.
51 Botero (n. 12).
52 Rich (n. 33).
and territorial authorities, and failed to protect Indigenous territories from the
violent incursions of non-Indigenous settlers.53
Careful quantitative research, in turn, can offer systematic measurement
of social outcomes and account for alternative explanations. Cross-national
indicators allow us to assess the enjoyment of rights through comparative in-
dices,54 which are typically based on expert and general population surveys.55
Accounting for cross-national variation in those outcomes, moreover, requires
multivariate analyses able to isolate the effect of human rights instruments from
the effect of additional factors, such as institutional weakness,56 economic devel-
opment, and corruption.57
Scholars and practitioners coincide in pointing out that the IAHRS has consid-
erable impact throughout the region and beyond.58 The chapters in this volume
document multiple ways in which the System has influenced the work of the
community of practice, legislation, public policy, and the enjoyment of citizen
rights, among other outcomes. This chapter has offered a general theoretical
framework to integrate and systematize all manifestations of impact. We artic-
ulated a comprehensive definition of impact and outlined the transformative se-
quence behind the various effects generated by the IAHRS. The usefulness of this
framework was illustrated by a set of empirical strategies used to assess impact.
In this concluding section, we summarize the four contributions advanced by
our framework.
The first contribution of this chapter is the idea that compliance should be
considered as a particular form of impact. Calls to investigate “impact be-
yond compliance” emerged from the realization that, despite its compliance
problems,59 the IAHRS had transformative effects across Latin America. Several
authors distinguished compliance from impact, using the latter term to describe
ill-defined but significant—and sometimes unexpected—consequences of the
53 Natalia Koper, “The Inter- American Court of Human Rights and Indigenous Rights in
Nicaragua: From Land to Empowerment?” [2022] 41 Bulletin of Latin American Research 608.
54 UN Office of the High Commissioner for Human Rights (n. 13).
55 Juan Carlos Botero and Alejandro Ponce, “Measuring the rule of law” [2011], available at SSRN
1966257.
56 Brinks, Levitsky, and Murillo (n. 41).
57 Luz Ángela Cardona, Horacio Ortiz Ríos, and Luis Daniel Vázquez Valencia, “Corrupción y
derechos humanos” [2018] 80 Revista Mexicana de Sociología 577.

58 Engstrom (n. 3).
59 Fernando Basch et al., “The effectiveness of the Inter-American system of human rights pro-
tection: a quantitative approach to its functioning and compliance with its decisions” [2010] 7 Sur—
International Journal on Human Rights 9.
System’s actions. Our definition of impact covers the intended and unintended
effects of adjudicatory and non-adjudicatory instruments. As such, the concept
incorporates compliance as a special case of impact; compliance is the desired ef-
fect of an adjudicatory instrument among the parties in a controversy.
In addition, following relevant work in domestic judicial politics,60 our defini-
tion provides an encompassing framework to include several types of impact: in
practices, structures, and social outcomes. Along those lines, we developed a con-
cept of impact that is useful to assess the effects, not only of judicial rulings but
also of non-adjudicatory instruments such as country reports and press releases.
We systematically mapped out the multiple functions performed by the IAHRS’s
instruments: directing State action, developing standards, documenting facts,
positioning new topics, reframing issues as human rights problems, and assisting
local actors in their human rights work.
In the third place, we contribute to the literature by advancing the idea of a
transformative sequence. In our account, the System’s organs create impact
through a transformative process in which sequence matters. At the start of the
sequence, the IAHRS deploys an instrument that can perform a number of roles.
This instrument is first appropriated by the community of practice and leveraged
in legal and political disputes. The community of practice utilizes this leverage
to obtain a response from the State or other organizations. When the response
is positive, we observe a transformation in structures, such as changes in juris-
prudence or academic curricula. In the most successful cases, structural change
leads to a transformation in the livelihood and the perception of rights among
the target population. Thus, the transformations normally cited as examples of
impact, such as changes in jurisprudence or legislation, cannot be understood
without a previous stage, where the community of practice plays a crucial role.
By pinpointing the specific outcomes that define each stage in the transform-
ative chain, our framework facilitates, in the fourth place, an empirical approach
to the study of impact. The framework does not ignore the possibility of negative
consequences, such as backlash against the IAHRS’s actions.61 But our analyt-
ical focus underscores transformations at each stage that alter the status quo in
the direction of advancing human rights. Our proposed research program relies
on the methodological tools of social sciences to assess how inter-American
instruments activate such transformations. Future empirical studies should ex-
plain why the community of practice appropriates some instruments more ef-
fectively than others, and why some instruments are more effective at driving
60 Botero (n. 12).

61 Ximena Soley and Silvia Steininger, “Parting Ways or Lashing Back? Withdrawals, Backlash and
the Inter-American Court of Human Rights” [2018] 14 International Journal of Law in Context 237.
structural change. Also, future research should trace the causal mechanisms be-
hind the advancement in the transformative sequence in successful cases.
The ideas presented in this chapter underscore the role of the community of
practice in bringing the instruments of the IAHRS to specific settings and using
them to achieve palpable transformations in legal structures. Empirical studies
of successful transformative sequences can provide important insights into ef-
fective strategies and inspire lessons to achieve new transformations on the
ground across the region.
I.10
Creating the Narrative of Human Rights
Impact in Latin America
By René Urueña and Stephania Yate Cortes
1. Introduction
The practical relevance of a Ius Constitutionale Commune en América Latina

(ICCAL) is deeply intertwined with the impact of the Inter-American Court
of Human Rights (IACtHR). A regional court with little societal impact would
seem to be in tension with the idea of transformative constitutionalism in Latin
America—that is, a project of collective construction of legal meaning that seeks
to transform society.1 In this context, the body of literature arguing that the
IACtHR is often but a toothless tiger, adopting orders with little expectation of
actual State compliance, appears to be a powerful indictment of the transform-
ative possibilities of the common law of human rights in Latin America.2 And
yet, in sharp contrast with that view, a second robust body of work has argued
that observers should go “beyond compliance,”3 and factor in the wider societal
“impacts” of the Court’s orders.4
This chapter intervenes in that discussion. It seeks to revisit the importance of
the IACtHR by proposing a redefinition of the terms of the debate. It argues that
“impact” is not a static fact but is rather a continuously evolving description of
reality, performed by the community of human rights practice in Latin America.
Specifically, participants of the community, including the IACtHR, construe
reality through cognitive categories provided by law and then organize such
descriptions in particular frameworks. Through such framing, the community
of practice interprets national political, policy, and juridical events as the con-
sequence of utterances from the IACtHR, thus creating a narrative about which
1 On that project, see Armin von Bogdandy and René Urueña, “International Transformative
Constitutionalism in Latin America” [2020] 114(3) American Journal of International Law 403–442.
2 For a review of such literature, see Viviana Krsticevic and René Urueña in this volume.
3 See the essays in Par Engstrom (ed.), The Inter-American Human Rights System: Impact beyond
Compliance (Palgrave Macmillan 2019).

4 See Viviana Krsticevic and René Urueña; René Urueña and Armin von Bogdandy in this same
volume.
René Urueña and Stephania Yate Cortes, Creating the Narrative of Human Rights Impact in Latin America In: The Impact
of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer
Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © René Urueña and Stephania Yate Cortes 2024.
DOI: 10.1093/oso/9780197744161.003.0011
200 René Urueña and Stephania Yate Cortes
the assessment of “impact” makes sense. Ultimately, this chapter argues, the
IACtHR’s impact is a narrative built by the community of human rights practice
through a particular framing, deploying a wide range of cognitive categories pro-
vided by law to describe “reality.” This wider process is lost when observers focus
solely on compliance with discrete inter-American orders as the relevant ana-
lytical unit to interrogate how the Court affects reality in the region. While such
discrete data observations are of course relevant they must be understood in ref-
erence to the story that the community of practice is telling about the Court, and
about itself. That narrative of impact helps explain the continued importance of
the Court in the region, beyond compliance with its specific orders.
To make that argument, this chapter starts by introducing the role of
communities of practice in creating narratives. It then moves on to describe how
such narratives are developed through the deployment of cognitive categories
that are organized in frameworks. The practice of such a process is then explored
in reference to three inter-American cases: González et al. v. Mexico (“Cotton
Field”); Vardo dos Fogos v. Brazil (“Fireworks Factory”); and Lemoth Morris et al.
v. Honduras (“Miskito Divers”). The final section concludes.
2. Communities of Practice and Narratives of Human

Rights Impact
International transformative constitutionalism is developed and sustained by

a group of actors that coalesce around the development of a common law of
human rights in Latin America—a Ius Constitutionale Commune en América
Latina (ICCAL).5 This common law creates, in Robert Cover’s pathbreaking
rendering, a “world of law” (a “nomos”) that “entails the application of human
will to an extant state of affairs as well as toward our visions of alternative fu-
tures.”6 This common law (this ICCAL) is, however, not enough to sustain the
community. To that effect, though, the community requires normative guidance
in its interpretation of texts. As Cover explains, a legal tradition includes “not
only a corpus juris but also a language and a mythos—narratives in which the
corpus juris is located by those whose wills act upon it.”7 Ultimately, the commu-
nity of practice creates a world of human right law—but also a need to inhabit
it, which is only possible through the development of a narrative that connects
the harsh reality of continuing human rights violations in Latin America with
the normative horizon of transformative constitutionalism. This gap between a
5 This definition is drawn from Bogdandy and René Urueña (n. 1). See further Armin von
Bogdandy and René Urueña in this volume

6 Robert M. Cover, “Nomos and Narrative” [1983] 97(4) Harvard Law Review 4–68, at 9.
7 Ibid., 9.
Creating the Narrative of Human Rights Impact 201
transformative ambition and the reality of human rights violations is, from this
perspective, not a problem of compliance (or lack thereof), but is a crucial part
of the dynamic process of creating the “world of law” that is ICCAL. As Cover
explains, narratives “build relations between the normative and the material uni-
verse, between the constraints of reality and the demands of an ethic,” which op-
erate at different levels, and are connected by narrative.
Narratives are crucial to understanding the dynamic construction of “impact”
in that they imply the collapse of the “is,” the “ought,” and, as Cover explains, the
“what might have been.” By constantly contrasting the descriptive “is” of human
rights violations in Latin America (or the incipient advances in protection in cer-
tain States), with the normative “ought” of ICCAL’s transformative ambitions,
the community of human rights practice creates a narrative of “impact” that
actualizes the IACtHR’s relevance. This tension gives sense to the Court’s man-
date: always struggling, but never defeated—a tension in which the community
of practice operates. The narrative of “impact” therefore introduces a constant
normative irritation to reality, as it provides the link that connects the factual
representation of domestic reality (say, the prosecution of an alleged perpetrator
of human rights violations) and the normative goals of the Court.
Such narratives allow us to explain why focusing on just compliance misses
the mark. Compliance puts the spotlight on discrete orders by the Court, which
in turn trigger certain domestic actions. However, tying together such discrete
events is a wider fabric narrative—in this case, a narrative in reference to which
it is possible to speak of “impact.” As historian and literary critic Hayden White
explains, narrative as a meta code is the key difference between the historical
document of the annals and the chronicles: while the annals (a list of events) are
“fact,” the chronicle is narrative. Similarly, the quantitative “fact” about compli-
ance are the annals of the IACtHR, while impact implies a narrative, a connec-
tion between such discrete “facts” and an overall normative mindset—in White’s
words, the impact is not the “real,” but a “discourse of the real.”8 Thus, when
quantitative studies show extremely low levels of compliance with the Court’s
orders, they are also creating a narrative—that of the System as an ineffectual in-
stitution of a largely symbolic role. That is also a “discourse of the real.”
3. Creating Narratives: Cognitive Categories and Framing
How is the narrative of impact created and sustained? In this section, we highlight
two strategies. First, the common law of human rights provides the community
8 Hayden White, “The Value of Narrativity in the Representation of Reality” [1980] 7(1) Critical
Inquiry 5–27, at 23.

of practice with a set of cognitive categories that allow it to describe its reality and
the position of each actor within that reality. However, cognitive categories in
themselves are not enough to build a narrative. In a way, they risk remaining as
vignettes within a wider framework of meaning. Hence, the community of prac-
tice needs to appeal to framing, as a second strategy to give sense and texture to
the narrative of impact.
3.1. Description through Cognitive Categories
Narratives are built on descriptions that allow us to understand reality, partic-

ularly when such descriptions are shared, told, and retold by the members of a
community of practice. When a narrative becomes broadly known and part of a
canon, “it appears to be an inevitable, necessary and natural impulse to narrate,
so that those narratives that correspond to the dominant cultural expectations
are not problematic.”9
In the case of the community of human rights practice in Latin America,
the descriptive work is performed through law.10 Indeed, the law provides the
community of practice with cognitive categories, by which we mean a concept,
created by the community of practice, which may help its participants to organize
their perception of their reality, as well as their role in it.11 As Julieta Lemaitre has
suggested when describing the role of law in grassroots activism, we understand
the world through concepts and networks of concepts that, in turn, refer to other
concepts, hence a part of social reality has no necessary materiality outside of
this constructed network of meanings.12
All actors in the community of practice use cognitive categories to describe a
particular reality. Elsewhere, one of us has explored how the concept of “victim”
in the Inter-American System provides a key cognitive category that organizes
9 Julia Otten, “Narratives in International Law” [2016] 99(3) KritV, CritQ, RCrit. Kritische
Vierteljahresschrift Für Gesetzgebung Und Rechtswissenschaft /Critical Quarterly for Legislation and
Law /Revue Critique Trimestrielle de Jurisprudence et de Législation 187–216, http://www.jstor.org/
stable/44504923.
10 Otten (n. 9). To take an example outside of Latin America, the narrative behind Article 51
of the UN Charter, which recognizes the right to self-defense, provides the cognitive tools nar-
rate use of force and is necessary to describe the “reality” of those who engage in self-defense See
Gina Heathcote, “Article 51 Self-Defense as a Narrative: Spectators and Heroes in International
Law” [October 2005] 12(1) Texas Wesleyan Law Review 131–153, https://doi.org/10.37419/TWLR.
V 12 . I 1 .6.
11 For further discussion about this set of concepts, see René Urueña’s work on cognitive categories
in “International Law as Expert Knowledge: Exploring the Changing Role of International Lawyers
in National Contexts,” in Jean d’Aspremont et al. (eds.), International Law as a Profession (Cambridge
12 Julieta Lemaitre, El derecho como conjuro: fetichismo legal, violencia y movimientos sociales
(Siglo del Hombre 2009), 394.

how civil society gets to know its realities, and eventually itself. It offers the
building blocks to describe reality—the actors, structures, and the representa-
tion of a process—the criminal process whereby the “perpetrator” creates the
victim. All this influences strategy on the ground.13
Among all other participants of the community, the IACtHR is a crucial pro-
vider and user of such cognitive categories. Many of the cognitive categories
deployed by the Court are expressed in the language of rights, which implies
an inherent claim to legal bindingness. However, their legal status as legal
obligations is neither necessary nor sufficient for them to work categories to de-
scribe reality. Beyond their legal status, it is only through the constant practical
use by the community that rights become cognitive categories useful for the con-
struction of narratives.
Consider the right of Indigenous peoples to prior consultation.14 Since its
recognition through the IACtHR’s evolutive interpretation of the rights to prop-
erty and culture,15 prior consultation has prompted the development of a wide
portfolio of categories describing geographical and ethnographic realities that
have allowed the community of human rights practice to make sense of their
environment, create a mental image of their geographical reality, and plan their
strategies accordingly.
An example of this process is the notion of “ancestral territory.”16 Of course,
such territories do exist in “reality.” Indigenous communities do have a geo-
graphical area where they have been traditionally located. However, the cogni-
tive category of “ancestral territory” mobilizes legal language to go beyond mere
historical or geographical data, and creates a geographical, cultural, and spiritual
reality “on the ground” that exists, however, only in reference to the law. That
13 Bogdandy and Urueña (n. 1).

14 See Corte IDH. Caso del Pueblo Saramaka v. Surinam; Corte IDH. Caso Pueblo Indígena
Kichwa de Sarayaku v. Ecuador; among others.
15 See generally Sorily Carolina Figuera Vargas and Meylin Heleana Ortiz Torres, “El Derecho a
La Consulta Previa a Los Pueblos Indígenas En El Sistema Interamericano de Derechos Humanos.

Casos de Estudio: Ecuador y Colombia” [2019] 19(36) Civilizar Ciencias Sociales y Humanas 59–76.
16 See, e.g., the rich Inter-American case law on the protection of “ancestral territory” in Comisión
Interamericana de Derechos Humanos, “Derechos de Los Pueblos Indígenas y Tribales Sobre Sus
Tierras Ancestrales y Recursos Naturales: Normas y Jurisprudencia Del Sistema Interamericano
de Derechos Humanos” (OEA/Ser.L/V/II Doc. 56/09, diciembre 2009). The Inter-American Court
has also often used the category of “ancestral land” or “ancestral territory,” for example, in Caso
de la Comunidad Moiwana v. Surinam. Excepciones Preliminares, fondo, Reparaciones y Costas.
Sentencia de 15 de junio de 2005. Ser. C No. 124, paras. 131–133; Caso Comunidad Indígena Yakye
Axa v. Paraguay. Fondo Reparaciones y Costas. Sentencia 17 de junio de 2005, paras. 96, 124, 167,
225; Caso Comunidad Indígena Sawhoyamaxa v. Paraguay. Fondo, Reparaciones y Costas. Sentencia
de 29 de marzo de 2006 paras. 164, 212, 235; Pueblo Saramaka. v. Surinam. Excepciones Preliminares,
Fondo, Reparaciones y Costas. Sentencia de 28 de noviembre de 2007, para. 85 (quoting Moiwana);
Caso Comunidad Indígena Xákmok Kásek. v. Paraguay. Fondo, Reparaciones y Costas. Sentencia de
24 de agosto de 2010, paras. 309–310; Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá
de Bayano y sus Miembros v. Panamá. Excepciones Preliminares, Fondo, Reparaciones y Costas.
Sentencia de 14 de octubre de 2014, paras. 121–122, among others.
is, it creates a space with a particular type of inhabitants, around which litiga-
tion strategies of both claimants and respondents gravitate, and has to be dealt
with by both, which exists however only in reference to that shared cognitive
category.17
Similarly, the law of prior consultation also provides cognitive categories that
describe the communities that are protected by such a right. In a veritable process
of interpellation, a particular notion of Indigenous community emerges in refer-
ence to the category “ancestral territory,” which is defined through the bundle
of legal relations created by the right to prior consultation.18 But the process is
not only top-down; that is, it is not only a bestowing of identity through cogni-
tive categories from international institutions. The Indigenous community is not
passive and, as an agent of its politics, in turn, puts forward its definition of the
geographical and ethnographic reality where the right to prior consultation is to
be applied—and, by doing so, defines crucial dimensions of its very own iden-
tity as a community. Through this process of interpellation by institutions and
continuous redefinition of the community itself, the law of prior consultation
shapes a particular subject of protection and, as this constant description of re-
ality becomes stabilized, it guides the range of possible reactions by national and
international institutions to the problem triggered of “prior consultation.”
3.2. Framing the Narrative of the Impact
Cognitive categories, though, are not enough to give sense to the narrative of im-
pact. A wider framework is needed for discrete cognitive categories to coalesce
into a narrative. Any given fact or event, as part of an interpretative process, can
17 Anthropologist and Indigenous rights activist Efraín Jaramillo has argued that the very notion
of “indigenous territory” is “a concept that arises from the relations of ethno-territorial groups with
the State” as, first, it “was not in the nature of indigenous peoples to determine territories to define
the spaces of their social being and to establish relations or differences with or differences with other
peoples” and, second, “the primary relationship of an indigenous group with its habitat is based on
the supply of resources for the subsistence of the group.” “Many of its myths and legends,” Jaramillo
explains, “revolve around a fertile and generous nature. From there arises the notion that the earth is
the mother of all that exists. But these cosmovisions were not limited to a delimited physical space,
outside of which their religious beliefs about nature were not valid.” Therefore, for Jaramillo “the
notion of indigenous territory as we know it today, arises from conflicting relations with the sur-
rounding society. It arises more from the political needs (of political affirmation) of indigenous peo-
ples, rather than from cultural imperatives, at a time when their habitat was invaded, during the
Spanish conquest and subsequent colonization.” (Efraín Jaramillo, “Territorio, Identidad Étnica y
Estado” [2003] 4(3) Revista Asuntos Indígenas 44–49, at 44–45). We argue, however, that regardless of
its historical or ethnographic origin, the cognitive category of “ancestral territory” does its contem-
porary work of describing reality for the community of practice, in accordance with the contempo-
rary consensus around its use. This cognitive role is not affected, but rather confirmed, by Jarmillo’s
valuable insight.
18 On interpolation in the Althusseian sense used here, see Ntina Tzouvala, Capitalism as
Civilisation: A History of International Law (Cambridge University Press 2020), at 61

be described in different terms or focus, narrowly or broadly—that is, in regard

to different “frames,” or “schemas of interpretations that transform a succession
of events into something meaningful.”19
When the IACtHR intervenes in a particular situation, it translates context
into human rights frameworks, which it then uses to organize its interpretation
of “reality.” The first intervention is therefore to understand social relations as
distinctively legal and, most importantly, to understand complex social problems
(such as inequality or violence) as legal challenges that can be processed through
legal reasoning.20 However, framing theory relies on acknowledging that
definitions of a situation are built up under a set of principles of organization
that govern social events and our subjective involvement in them.21 Frames are
not randomly given, or spontaneously constructed. The construction of a frame
can be a conscious process, led by certain actors of a particular community of
practice. Thus, to frame is, as Robert Entman has put it, “to select some aspects of
perceived reality and make them more salient in a communicating text, in such
a way as to promote a particular problem definition, causal interpretation, moral
evaluation, and/or treatment recommendation for the item described.”22
Such a framing process plays a key role in organizing the description of re-
ality performed through cognitive categories. Together, frames and cognitive
categories allow the construction of the narrative of the IACtHR’s impact in
Latin America. A particular framing of the issue will imply a particular version
of impact, beyond the specifics of compliance with a discrete Court order. Thus,
while cognitive categories provide the building blocks to describe the reality of
the Court, framing provides a blueprint to organize facts to build a narrative—
with “impact” being a necessary part of such narratives, one that indeed gives
them closure, as it helps organize events toward a conclusion of changed lives by
the Court’s action.
Framing is competitive. Participants of the community of practice put for-
ward particular frames to interpret the “reality” where ICCAL operates.23 In
that process, there will be conflict among different framings, some of which
will become dominant, and others less so. However, once a framework becomes
dominant, it constrains the future interpretation of ICCAL’s “reality,” setting the
baseline for the next interpretation of said reality.24 In social movements litera-
ture, this temporarily dominant frame is often labeled as a “master frame,” which
19 Erving Goffman, Framing Analysis: An Essay on the Organization of Experience (Northeastern
University Press, 1986).

20 See Bogdandy and Urueña (n. 1).
21 Goffman (n. 19), 11.
22 Robert M. Entman, “Framing: Toward Clarification of a Fractured Paradigm” [December
1, 1993] 43(4) Journal of Communication 52, https://doi.org/10.1111/j.1460-2466.1993.tb01304.x.

23 See Bogdandy and Urueña (n. 1).
24 Otten (n.9), 195.
implies a broad scope and works as a “master algorithm” that influences and
constrains the orientation of many social movements.25 Such a master frame is
organized in terms of a wide range of ideas; it is “syntactically flexible and lexi-
cally universalistic” and “provides flexible modes of interpretation; consequently,
it works as an inclusive system.”26
The IACtHR plays a crucial role in defining what the dominant framework
will be at a particular time. While not the only actor by any means, the Court’s
role in this framing process is salient, due to its unique position as the only re-
gional institution with a transnational mandate. While domestic constitutional
courts or universal human rights institutions do as much framing as the Court,
the latter’s framing is more likely to be adopted as a shared point of reference by
actors throughout the region, for at least two reasons: first, because, in a context
where many participants are putting forward their frames, the Court is particu-
larly influential, as it has the mandate to evaluate the frameworks proposed by
others and legally validate those frameworks as a particular violation of human
rights. And second, because due to its prior successes in adopting dominant
framings, the Court can constrain future frames, both implicitly by foreclosing
the horizon of possible alternative framings and, explicitly, by demanding as a
legal obligation that its prior framing, as expressed through prior interpretations
of legal texts (that is, its case law) be followed.
This is not to say that the Court’s framing is indisputable. The fact that a par-
ticular framework is influential at a given moment does not mean that there is a
uniform or unique interpretation of reality.27 As with any piece of literature, in
which the author plays with points of view that build up the overall structure,
the Court’s intervention foregrounds a particular frame that is just one part of
the story as a whole.28 However, the Court’s framing does set the terms for the
narrative of its impact: it is in the context of a particular framework that “impact”
makes sense. Ultimately, “impact” tells the story of a reality (described through
cognitive categories) organized around a particular framework (or contestation
of frameworks), that narrates a Court intervention that is more, or less, effective
in its task of transforming society.
25 Robert D. Benford and David A. Snow, “Framing Processes and Social Movements: An
Overview and Assessment” [2000] 26 Annual Review of Sociology 618.

26 David A. Snow and Robert D. Benford, “Master Frames and Cycles of Protest,” in Frontiers in
Social Movement Theory (Yale University Press 1992), 140.

27 See Gwendolyn Leachman, “Legal Framing,” in Austin Sarat, Studies in Law, Politics, and
Society, vol. 61 (Emerald 2013), 25–59.

28 Jerome Bruner, “What Is a Narrative Fact?” [1998] 560 Annals of the American Academy of
Political and Social Science 17–27.

4. Narratives of Impact in Practice
The IACtHR creates and sustains narratives through all of its legal utterances—
most importantly through its decision. This section discusses three instances of
inter-American adjudication that illustrate how narratives of impact are created
through the deployment of cognitive categories, organized around a particular
framing. In each of these cases, the Court: (a) used cognitive categories to de-
fine a particular problem, (b) diagnosed its causes, and (c) suggest remedies,
thus creating a complete frame of intervention.29 It is only with regards to such a
frame that it becomes possible to (d) start thinking about “impact.”30
The first case is González et al. v. Mexico (“Cotton Field”). Its facts are well
known: in Juárez (Mexico), three young women disappeared in 2001, later to be
found dead in a cotton field with signs of sexual violence. After the disappear-
ance had been reported and criminal proceedings activated, local authorities
failed to give an appropriate response to the victims’ families, failing also to in-
vestigate or sanction those responsible.31 The second case is Vardo dos Fogos
v. Brazil (“Fireworks Factory”), which addresses the events around a fireworks
factory in Santo Antônio de Jesus that exploded in 1998, killing sixty people
(forty women, nineteen girls, and one boy).32 Finally, the third case is Lemoth
Morris et al. v. Honduras (“Miskito Divers”), concerning forty-two victims of the
Miskito Indigenous community living in the department of Gracias a Dios, who
worked in deep-sea dive fishing. The free-diving practice was traditionally used
29 The two aspects were selected using Entman’s framing functions, considering the affinity with
the work of the Court and the qualitative method it implies. See Robert M. Entman, “Framing: Toward
Clarification of a Fractured Paradigm” [December 1, 1993] 43(4) Journal of Communication 51–58,
https://doi.org/10.1111/j.1460-2466.1993.tb01304.x. Other approaches and methodologies avail-
able, see Dafrizal Samsudin, “Understanding the Models of Framing Analysis Approaches in Media
Framing Studies,” in Proceedings of the Second International Conference on Social, Economy, Education
and Humanity (The Second International Conference on Social, Economy, Education, and Humanity,
Riau, Indonesia: SCITEPRESSScience and Technology Publications 2019), 385–389, https://doi.org/
10.5220/0009159503850389. In particular, framing theory is currently interested in empirical veri-
fication and measuring the effects of framing, a concern that goes beyond the scope of this chapter,
but might prove an interesting venue of ICCAL future research. See Dietram A. Scheufele and Shanto
Iyengar, The State of Framing Research, ed. Kate Kenski and Kathleen Hall Jamieson, vol. 1 (Oxford
University Press 2014), https://doi.org/10.1093/oxfordhb/9780199793471.013.47.
30 Equivalency frames will not be discussed; this means frames that present different but logi-
cally equivalent words or phrases and reflect an interest in the method of communication, mainly
focusing on framing effects research. See Irwin P. Levin, Sandra L. Schneider, and Gary J. Gaeth, “All
Frames Are Not Created Equal: A Typology and Critical Analysis of Framing Effects” [November
1, 1998] 76(2) Organizational Behavior and Human Decision Processes 149–188, https://doi.org/
10.1006/ obhd.1998.2804; Hillary C. Shulman and Matthew D. Sweitzer, “Advancing Framing
Theory: Designing an Equivalency Frame to Improve Political Information Processing” [April
1, 2018] 44(2) Human Communication Research 155–175, https://doi.org/10.1093/hcr/hqx006.
31 González y otras (Campo Algodonero) v. México. Preliminary Objection, Merits, Reparations
and Costs (Inter-American Court of Human Rights, November 16, 2009).

32 Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their families v. Brazil
(Inter-American Court of Human Rights, June 21, 2021).

for family consumption with safe limits regarding the depth of the immersion.
However, due to the increased commercialization of this activity, it started to be
practiced by Miskito boys outside the labor legislation with serious consequences
for their health and life.
4.1. Deployment of Cognitive Categories to Define

the Problem
The first move to develop a narrative is the definition of the problem to be

addressed. To do so, as was discussed earlier, the Court uses cognitive categories,
provided by law, to describe the reality in which its decision will intervene, thus
defining the possible scope of its “impact.” Ultimately, the “impact” of the Court
has to be understood with regard to a particular reality. However, this reality is
not given—it has to be construed through the interpretation of the community
of practice.
In Cotton Field, the question was whether the problem that these killings
posed pertained to the individual victims, or whether to adopt a wider prism
that included all three acts of violence (and others) as part of a larger reality. In
this case, the Court’s key move was one of scale. The scale at which the Court
analyzes the facts varies from the scale in which local actors initially portray
them.33 On a purely descriptive basis, the facts in Cotton Field will look very dif-
ferent when read through the cognitive categories provided by international law
to an international judge, as opposed to the same facts read through the cogni-
tive categories provided by domestic law to domestic authorities. States, in turn,
might want to resist such use of international cognitive categories and put for-
ward their interpretation of the relevant “reality” of the case. That was the case
in Cotton Field, where the three women’s cases were treated by Mexico as dis-
crete occurrences, each following an individual track in the Mexican criminal
system. That is, the “reality” of each killing was disconnected from the “reality”
of the other cases and, of course, disconnected from the wider “reality” of struc-
tural gender discrimination. The concurrence of patterns of criminality was not
considered at the national level and only after entering into the Inter-American
System did the relevant scale description change, and it became a structural case
of violence against women.
In Fireworks Factory, the Court uses the category of intersectionality to
present the reality of Santo Antônio de Jesus. The key issue was not only that
victims suffered structural discrimination based on their situation of poverty
33 Boaventura de Sousa Santos, “Law: A Map of Misreading. Toward a Postmodern Conception of
Law” [1987] 14(3) Journal of Law and Society 287, https://doi.org/10.2307/1410186.

but that at the same time this situation was intersected by gender, race, and age,
generating a particular type of discrimination against them.34 The Court thus
describes in detail the context of Santo Antônio de Jesus, including its histor-
ical background,35 the victims’ socioeconomic profile,36 and the conditions after
the tragedy. Workers in this sector are mostly Afro-descendant women who did
not finish elementary school and started working between the ages of ten and
thirteen as a way of increasing their income and because they have no one with
whom to leave their children during working hours.37 The key cognitive inter-
vention is, therefore, to describe the reality of the workers around their iden-
tity as Afro-descendants, women, and workers. The problem, thus described,
becomes less about industrial safety as such (a classic labor union and social
rights issue) and more an issue of intersectionality.
A similar move can be observed in Miskito Divers, this time on the
perpetrators’ end of the description.38 In that case, the Court deployed different
cognitive categories to new subjects in its description of the case. Even though
it acknowledges that it lacks jurisdiction to determine the responsibility of pri-
vate parties under international human rights law,39 the Court does include such
private parties in its description of the “reality” it is studying—in this case, the
fishing industry, who were of course crucial actors in the political economy of
diving.40 Framing the case around private companies transforms it into a busi-
ness and human rights case, taking the opportunity to tackle this issue from a
different perspective.41
34 Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their families v. Brazil,
paras. 190–197.
35 The Court considered that Santo Antônio de Jesus is in a region historically known for having
a significant presence of Afro-descendants. The receding was partly because, during the sixteenth
century, it received many slaves brought in to work on the cane sugar plantations and in tobacco
farming. Discrimination against them continued even after the abolition of slavery, since the exercise
of citizenship and the rights to housing and property were restricted, and entry into the labor market
was obstructed. See Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their
families v. Brazil, paras. 57–58.
36 Around the time of the events, poverty affected 65% of the population and 25,52% of children
lived in extreme poverty. Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and
their families v. Brazil, para. 60.
para. 65.
38 Miskitos was settled, but the parties asked the Court to analyze the content and scope of the
rights that were affected and provide elements to the States of the region regarding their obligations
to respect and guarantee human rights when companies and Indigenous peoples are involved. Case
of the Miskito Divers (Lemonth Morris et al.) v. Honduras (Inter-American Court of Human Rights,
August 31, 2021).
39 Ibid., para. 46.
41 See “Justice for Miskito Divers: A Turning Point for Business and Human Rights Standards from
the Inter-American Court of Human Rights,” OpenGlobalRights, https://www.openglobalrights.org/

justice-for-miskito-divers-a-turning-point-for-business-and-human-rights-standards/ (accessed
June 10, 2023).
This may initially seem to be a trivial observation: all courts define the “reality” as
part of their adjudication. But this role of the Inter-American Court is anything but
trivial. The whole point in Cotton Field, Fireworks Factory, and Miskito Divers was
precisely that domestic authorities had been unable (or unwilling) to “see” the wider
reality of the systematic victimization that the Court identified and validated. In
Cotton Field, the Court introduced its scale to the description of the problem, while
in Fireworks Factory, it introduced a new description of the victims’ plight, and in
Miskitos, a new actor was introduced in the description. In each of these cases, one
key transformative intervention was to describe a wider reality—a transformation
that was not achieved by developing new legal standards or by offering legal in-
terpretation or “naming and shaming” strategies, but by using different cognitive
categories.
4.2. Diagnosis of Causes
The definition of the reality of the problem is followed by an implicit or explicit di-
agnosis of its causes. In Cotton Field, the IACtHR put into sharp relief the social
context of victimization based on gender. To do so, the complainants emphasized a
general pattern of violence in Ciudad Juárez, and a specific pattern of femicide, that
turned the three deaths into part of a wider context of gender-based violence that
had existed since the 1990s in the city and its surrounding areas. This diagnosis of
causes was accepted by the Court. Rejecting the Mexican Prosecutor’s Office’s initial
approach, according to which most of the murders of women in Ciudad Juárez had
been committed under different circumstances, time, manner, and occasions,42 the
Court developed a framework that explained the facts more broadly and unveiled
a phenomenon that Mexican authorities had been reluctant to see—the systematic
victimization of women—identified and validated by inter-American institutions.
Similarly, in Fireworks Factory, including intersectionality allowed the Court
to reorganize the narrative about causes and effects. For the Court, the leading
cause of the problem in this case was the pattern of structural and intersectional
discrimination the victims faced. Accordingly, those patterns (i) forced the
victims to work in the firework factory because their situation prevented them
from finding alternatives in the commercial sector or even in domestic service,43
and (ii) facilitated the factory’s operation without adequate occupational health
and safety conditions.44.
42 González y otras (Campo Algodonero) v. México. Preliminary Objection, Merits, Reparations and
Costs, para. 127.

para. 71.
44 Ibid., para. 203
This diagnosis of causes was in sharp contrast with that of Honduras. For
example, the State’s agents argued that there were “reasonable limitations” to
conducting actions to verify and oversee the different economic activities con-
sidering the size of the territory.45 However, the Court’s reading through the
prism of intersectionality shifted the emphasis of the case, as it became not only
a matter of supervising and overseeing hazardous activities but of overcoming
those patterns of structural and intersectional discrimination.
Lastly, in Miskito Divers, the role of private fishing companies was highlighted
as one of the main causes of the divers’ dire conditions. The private buyers of fish
did not meet the minimum standards required to engage labor in dive-fishing,
have a formal employment contract or fair wage payments, or provide compen-
sation for those who suffered accidents or diseases associated with this work.
Moreover, they forced divers to work for long periods (ten or twelve days) and
gave them drugs that allow divers to remain underwater for as long as possible.46
The Court emphasized that Gracias a Dios was one of Honduras’s poorest and
most isolated areas and that the Miskito population had limited formal employ-
ment opportunities—a combination of facts that allowed the (relatively small)
fishing company to have an outside influence on people in the area.47 This anal-
ysis proved crucial for the Court’s framing of the case. While the Court was
careful not to attribute direct responsibility to these private parties, its diagnosis
of the case’s causes is mostly focused on them.48
4.3. Definition of Remedies
Finally, framing includes suggesting remedies. In Cotton Field, changing the

scale in the definition of a problem also changed the scale of possible solutions.
In cases with a wide framing, such as Cotton Field, reparation has become a ver-
itable exercise of governance, aiming to modify and guide public policy and
channel resources for that purpose. Thus, on top of individual reparations, the
Court ordered Mexico to continue standardizing all the institutional materials
used for investigating all the crimes relating to the disappearance, sexual abuse,
and murders of women from a gender perspective, adapting the Protocol for
Reception, Reaction and Coordination between municipal, State, and federal
authorities in cases of missing women and girls in the Municipality of Juárez and
to implement education and training programs and courses for public officials
on human rights and gender and on a gender perspective to ensure due diligence.
45 Ibid., paras. 136

46 Case of the Miskito Divers (Lemonth Morris et al.) v. Honduras, paras. 33–38.
47 Ibid., paras. 30–31.
48 Ibid., paras. 42–53.
In Fireworks Factory, the framing of the problem and the diagnosis of its
causes also provided different types of remedies, targeting the Court’s intersec-
tional reading of the case. On the one hand, the Court required Brazil to im-
plement a systematic policy of inspecting fireworks factories, both to verify the
health and safety conditions of the workplace and to oversee compliance with
the regulations on the storage of the materials involved.49 At this level, the focus
was the State’s due diligence in regulating, supervising, and overseeing the per-
formance of private or public entities. Following more closely its intersectional
framing, though, the Court imposed guarantees of nonrepetition, ordering
Brazil to develop a socioeconomic development program, especially for the pop-
ulation of Santo Antônio de Jesus, in coordination with the victims and their rep-
resentatives.50 The purpose of these measures was to provide better employment
opportunities in the area and to prevent, eradicate, and penalize child labor.
Similarly, in Miskito Divers, the Court accepted the remedies previously
agreed upon by Honduras and the representatives of the victims in their set-
tlement agreement. In terms of structural measures, the State agreed to ensure
the inclusion of Miskito divers and their families in existing social programs;
to implement measures to ensure the adequate regulation, control, and supervi-
sion of the activities of industrial fishing companies in Miskito territory; and to
strengthen the health and education systems in La Mosquitia. The parties’ set-
tlement, though, did not fully account for the Court’s framing, in which private
parties (in this case, the fishing companies) were a crucial part of the problem—
and hence, part of the solution. Thus, following its framing of the case as a busi-
ness and human rights issue, the Court brought the private party back to the
picture by imposing direct obligations upon them as part of the remedies, and
ordered that “businesses should adopt, at their own expense, preventive meas-
ures to protect the human rights of their workers, as well as measures aimed at
preventing their activities from harming the communities in which they operate
or on the environment.”51
4.4. The Narrative of the Impact
Through the deployment of cognitive categories to define a particular “re-

ality” of a problem, then diagnosing its causes, and finally proposing remedies,
the IACtHR sets the narrative in reference to which its impact can be assessed.
In each of these cases, the Court adopted orders that are subject to evaluation
para. 287.
50 Ibid., para. 298
51 Case of the Miskito Divers (Lemonth Morris et al.) v. Honduras, paras. 42–53.
of compliance.52 However, it is clear that each of these cases is often under-

stood to have had an “impact” in the respective target State, beyond the (low)
levels of compliance; for example, on Mexico’s gender policy,53 or on policies
for preventing work accidents and treating diseases linked to dive fishing in
Honduras.54
It is not possible to think about such an impact outside the Court’s defini-
tion of the reality of the problem of the case, its causes, and the appropriate
remedies—that is, outside the Court’s narrative. In each of these cases, the Court
deployed a particular set of cognitive categories and chose among a variety of
possible frameworks and created a particular narrative for each case. In that
narrative, the Court adopts a decision that is intended to affect the reality that
the same Court defined as relevant—often by adopting remedies prescribed by
the Court that are to tackle the causes of the problem, again as defined by the
Court. The evaluation of “impact” only exists within such a narrative; that is, an
evaluation of “impact” outside the basic narrative put forward by the Court (for
example, by evaluating whether Cotton Field had an impact on, say, the environ-
ment) would seem nonsensical.
The Court is only one producer/user of narratives. While, as discussed earlier,
its framings are particularly influential, it might be the case that other actors of
the community of practice resist the Court’s narrative and propose a different
one. For example, it could happen that a case like Cotton Field could be framed
to include violence against LGBTIQ+people, or that a case like Miskitos could be
framed in terms of Indigenous peoples or children’s rights. The Court’s decisions
presented here, therefore, work as the baseline for discussing possible alternative
framing, and hence possible alternative narratives. Each of these narratives will
include its horizon of impact.
52 The Inter-American Court of Human Rights monitors compliance with its orders. Levels of
compliance can be reviewed at https://www.corteidh.or.cr/casos_en_supervision_por_pais.cfm.

53 See Gloria de los Ángeles Suárez Escoffié, “Situación Actual de La Violencia de Género En
México,” in Género, Derechos Humanos e Interseccionalidad, ed. Andrea Carolina Subía and Seyedeh
Sougand Hessamzadeh (Universidad de Otavalo 2021), 88–108.
54 See “Reglamento de Seguridad y Salud Ocupacional de La Pesca Submarina Por Buceo,” Pub.
L. No. Acuerdo No STSS-577-2020 (2020). Considering this case is recent, the public act of acknowl-
edgment of international responsibility took place on March 2023. The State started to work on a
census of the situation of divers, the process for buying three hyperbaric chambers for the treatment
of decompression syndrome, and a permanent office in Puerto Lempira to monitor the condition
of divers and the various problems in the region. See “Buzos Miskitos: Autoridades Hondureñas
Asumen Compromisos y Expresan Disculpas Ante Problemática de Buceo En La Región,” CEJIL,
https://cejil.org/comunicado-de-prensa/buzos-miskitos-autoridades-hondurenas-asumen-comp
romisos-y-expresan-disculpas-ante-problematica-de-buceo-en-la-region/ (accessed June 9, 2023).
5. Conclusion
Adopting a narrative mindset regarding the impact of the IACtHR implies

shifting gears and focusing on cognitive processes. Narratives are necessary for
organizing and controlling knowledge and have an impact on how and where
interpretations take place in the community of practice. At the same time, the
framing process determines how reality is grasped and described to participants
of the community and those outside it.
Narratives are a potent way of describing reality. All participants of the com-
munity of practice, including the IACtHR, have the responsibility to consider
the role and representation of those who have suffered human rights violations
in the construction of such narratives. To do so, it seems important to begin by
acknowledging the role of the participants of the community of practice in the
creation of such a narrative. Denying the crucial role of narratives by appealing
to an alleged objective “reality” of compliance risks obscuring the crucial cogni-
tive works that are at play in human rights adjudication. It is crucial to strive for
epistemic justice—that is, narratives should not become technocratic obstacles
for recognition, justice, and reparations. The mobilization of the performative
aspect of IAHRS narratives should consider first and foremost the dignity of the
specific individuals that present their cases and their representation.
Of course, this is not the whole picture: the IAHRS’s sole function is not to
narrate events, and all of its activities cannot be reduced to their performative as-
pect. And yet, as this chapter shows, it is important to include such a narrative di-
mension in our vocabulary of “impact,” as it has an effect on cognitive processes
and potentially changes how reality is perceived. “Impact” is not a static fact but
is rather a continuously evolving description of reality, performed by the com-
munity of human rights in Latin America—beyond the mere compliance with its
specific orders.
PART II
IM PAC T A N D IN T E R-A M E R IC A N
STA N DA R DS
II.1
Impact of the Inter-American Jurisprudence
on Economic, Social, Cultural, and
Environmental Rights
By Eduardo Ferrer Mac-Gregor
1. Introduction
The Inter-American jurisprudence relating to economic, social, cultural, and envi-

ronmental rights (ESCER) is becoming an essential part of a Ius Commune in Latin
America in the context of transformative constitutionalism1 oriented toward human
rights, the rule of law, and democracy, which is particularly important in the most
unequal region in the world, with worrying rates of poverty and social exclusion.2
This chapter aims to characterize how this rich inventory of jurisprudence has
been created and to analyze the various topics and how the judicial protection
of ESCER has been carried out by the Inter-American Court of Human Rights
(Inter-American Court, or IACtHR).3 The chapter also aims at recognizing
advances within the Organization of American States (OAS),4 in particular
the far-reaching work that the Inter-American Commission on Human Rights
(Inter-American Commission, or IACHR) has achieved under its mandate,
which in the last few years has been revitalized through the creation of the Special
Rapporteurship on Economic, Social, Cultural, and Environmental Rights.5
1 Cf. Armin von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America. The

2 See also recent annual reports of the Economic Commission for Latin America and the
Caribbean (ECLAC), Social Panorama of Latin America, Santiago de Chile, United Nations, 2017,
2018, and 2019.
3 The jurisprudence on ESCER evolves continuously. Since the conclusion of this article, the
Inter-American Court has issued decisions that expand its precedents on Article 26 of the American
Convention on Human Rights.
4 For example, see the Social Charter of the Americas, approved by the OAS General Assembly in
Cochabamba, Bolivia, in 2012, and the Standards for the Preparation of Periodic Reports pursuant to
Article 19 of the Protocol of San Salvador, as well as the working group created to draft documents on
progress indicators on the ESCER rights discussed in the said Protocol through a review of submitted
national reports.
5 In 2012, the Inter-American Commission agreed upon the creation of the Unit on Economic,
Social and Cultural Rights. From 2014, this became the Special Rapporteurship on Economic, Social,
Eduardo Ferrer Mac-Gregor, Impact of the Inter-American Jurisprudence on Economic, Social, Cultural, and
Environmental Rights In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy,
© Eduardo Ferrer Mac-Gregor 2024. DOI: 10.1093/oso/9780197744161.003.0012
218 Eduardo Ferrer Mac-Gregor
Thus, we will analyze the channels and settings within which the Inter-
American Human Rights System has performed its supervisory function on
ESCER through the connection with civil and political rights from 1999 to
2017. Subsequently, we will refer to ESCER’s justiciability, which, according to
the Additional Protocol to the American Convention on Human Rights in the
area of Economic, Social, and Cultural Rights (Protocol of San Salvador), can
be accomplished through the individual petitions’ mechanism. In addition, we
will address developments based on the precedents Acevedo Buendía (2009)
and Lagos del Campo (2017), which marked a “before” and an “after” in this sub-
ject matter that had a profound impact on the Inter-American System. In re-
lation to the direct justiciability of Article 26 of the American Convention on
Human Rights (American Convention, or ACHR), we will address the following
topics: the used identification methodology, the derived obligations of the State,
and the rights and issues covered to date. Finally, we provide recent examples
from the perspective of ensuring nonrecurrence through transformative impact.
2. The Protection of ESCER through Civil and

Political Rights
The ACHR does not list ESCER expressly in its text. Like other international
documents of the time,6 the rights enshrined in the 1969 American Convention
are the so-called “civil and political rights” or “rights of freedom.” However,
one of the differences between the ACHR and its contemporaneous European
Convention on Human Rights7 is that the former includes a general provision
dedicated to economic, social, and cultural rights (Chapter III, Article 26).
Albeit in 1988, the Protocol of San Salvador covered ESCER in a similar way to
the provisions of the International Covenant on Economic, Social and Cultural
Rights. The Protocol stated that only trade union rights and rights relating to
education were subject to the system of direct individual petitions to the Inter-
American Commission and, when applicable, the IACtHR.8 These generated an
interesting decades-long debate within the Inter-American System relating to
Cultural, and Environmental Rights (SRESCER), with the first Special Rapporteur being appointed
in 2017.
6 For example, the International Covenant on Civil and Political Rights and the European
Convention on Human Rights.

7 We should not forget that the African Charter on Human and Peoples’ Rights was adopted
in 1981.
8 Art. 19.6 of the Additional Protocol to the American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights, concluded on November 17, 1998, and entering into force
on November 16, 1999, having been signed, ratified, and acceded to by sixteen States parties by
that date.
Impact of the Inter-American Jurisprudence 219
the interpretation of Article 26 of the American Convention on ESCER and were

not considered justiciable through the mechanism of individual petitions in the
Protocol of San Salvador.
The initial interpretative step of Article 26 took place in 1999 in the case of
Street Children (Villagrán Morales et al.) v. Guatemala. The IACtHR analyzed
violations not only from the perspective of the duty of the State to abstain from
specific actions but also adding positive obligations (the duty to act or to guar-
antee a particular right). Although, in the case of Street Children, ESCER rights
were not—strictly speaking—analyzed, and although the facts of the case did not
concern this issue, the case established the bases for what would subsequently be
called “positive obligations in relation to rights” in those cases where, given the
particular circumstances, the State would be expected to take a series of actions
to prevent the violation of rights.9
Based on this line of jurisprudence, for many years, the IACtHR applied the
“connection theory” or “indirect justiciability by connectivity.” In other words,
the IACtHR would analyze ESCER indirectly, whereas finding States interna-
tionally responsible for the violation of civil and political rights enshrined in the
ACHR.10 One explicit example of this theory and how the IACtHR applied it
can be found in the 2004 Juvenile Reeducation Institute case.11 In this case, the
IACtHR established:
149. The examination of the State’s possible failure to comply with its
obligations under Article 19 of the American Convention should take into
account that the measures of which this provision speaks go well beyond the
sphere of strictly civil and political rights. The measures that the State must
undertake, particularly given the provisions of the Convention on the Rights
of the Child, encompass economic, social and cultural aspects that pertain, first
and foremost, to the children’s right to life and right to humane treatment.
In this case, the representatives of the victims alleged that Article 26 of the
American Convention had been violated. However, the IACtHR did not deem it
necessary to pronounce upon the matter, considering that the issues pertaining
to a life with dignity, health, and recreation had already been analyzed in the
decision’s section on the rights to life and personal integrity concerning the
rights of the child.12
9 In general, the IACtHR indicated that failure to act on the part of the State impacted upon
standards for a “dignified life.” Case of the Street Children (Villagrán Morales et al.) v. Guatemala
[1999] IACtHR, Ser. C No. 63, para. 191.
10 Cf. Case of the “Juvenile Reeducation Institute” v. Paraguay [2004] IACtHR, Ser. C No. 112.
11 Cf. Case of the “Juvenile Reeducation Institute” v. Paraguay [2004] IACtHR, Ser. C No. 112.
In the period between 1999 and 2017, the IACtHR applied the connection
theory through three major strands:13 (a) via substantive rights (such as the
right to life and personal integrity); (b) via procedural rights14 (such as legal
safeguards, the right to an effective remedy, and the right to access information);
and (c) via the right to equality and nondiscrimination (particularly with regard
to the obligations in Articles 1.1 and 24 of the ACHR).
The IACtHR applied the connection theory mentioned above in three dif-
ferent scenarios: (a) toward direct allegations relating to Article 26 of the ACHR,
whether on the part of the Inter-American Commission or by representatives of
the victims; (b) toward acts relating to vulnerable groups; and (c) in those cases
in which, through rereading the decisions made by the Inter-American Court
between 1999 and 2017, it was possible to derive the content of certain ESCER.
It is worth noting that only in the case of scenarios “a” and “b” did a classifi-
cation take place concerning the three manners in which indirect connectivity
was applied (via procedural rights, substantive rights, or via rights of equality
and nondiscrimination); in the case of scenario “c”, a different classification was
chosen since the specifics of the cases required a different approach.
2.1. Indirect Justiciability of Cases in Which a Violation of

Article 26 Was Alleged
2.1.1. Substantive Rights
With regard to the first scenario and the application of substantive rights, we
find cases such as the case of the Juvenile Reeducation Institute v. Paraguay from
2004 and the case of the (year) Girls Yean and Bosico v. Dominican Republic
from 2005 concerning the alleged violation of the right of two girls to educa-
tion. In the latter, the IACtHR found that the facts characterized a violation of
the rights of the children to juridical personality (Article 3 of the ACHR) and
to a name (Article 18 of the ACHR), as a result of which—since they had no
identity documents—they were not able to access primary education.15 It must
also be noted that this was all associated—like in the 2004 Juvenile Reeducation
Institute case—with Article 19 of the ACHR interpreted in accordance with the
1989 UN Convention on the Rights of the Child. With regard to the Indigenous
communities in the cases of Yakye Axa (2005) and Sarayaku (2012), both against
13 See also Tara Melish, Protecting Economic, Social, and Cultural Rights in the Inter-American
Human Rights System: A Manual on Presenting Claims (Orville H. Schell, Jr. Center for International
Human Rights, Yale University and the Center for Economic and Social Rights 2003).
14 Similarly, in Advisory Opinion No. 23, the IACtHR identified procedural rights such as the right
to access information.
15 Cf. The case of the Girls Yean and Bosico v. Dominican Republic [2005] IACtHR, Ser. C No. 130,
paras. 175, 185.

Paraguay, the IACtHR subsumed the alleged violations relating to the right to
health, education, housing, and food (in the first case) and to the right to culture
(in the second case) under the right to a dignified life and the right to personal
integrity.
2.1.2. Procedural Rights
With regard to the focal point of procedural rights, we encounter the cases of
Five Pensioners (2003), Acevedo-Jaramillo et al. (2006), Dismissed Congressional
Employees (2006), and Acevedo Buendía et al. (2009), all against Peru, where
the IACtHR found Peru internationally responsible mainly for the violation
of procedural rights relating to legal safeguards—failure to execute domestic
judgments guaranteeing the right to an adjustable pension, which by association
affects the right to property and the enforcement of sentences (Articles 21 and
25.2.c of the ACHR).
In addition, the IACtHR stated that the long passage of time could affect cer-
tain social rights, thus declaring a violation of the right to a hearing within a rea-
sonable time as per Article 8.1 of the American Convention. In this type of case,
the IACtHR has applied the guiding principle that exceptional due diligence was
required in the handling of cases due to what was at stake, “given that the victims
were persons in a vulnerable situation,” as occurred in the case of Furlan et al.
v. Argentina (2012)16 and Gonzales Lluy et al. v. Ecuador (2015).17
2.2. Indirect Justiciability in Cases Relating to Groups in a

Position of Vulnerability
2.2.1. Substantive Rights
Regarding most cases pertaining to the second scenario, that is, cases dealing
with groups in positions of vulnerability, the application of connectivity via sub-
stantive rights prevails. Although technically, the IACtHR adopted this approach
for the first time in the case of the Juvenile Reeducation Institute, it was in the
case of Ximenes Lopes v. Brazil (2006) that the Inter-American Court expressed
particular concern with the vulnerability of certain groups and their enjoyment
of ESCER, referring to the circumstances in which a person might find him-
self or herself in such a situation of vulnerability (whether due to their personal
16 In this case, the Inter-American Tribunal declared that the right to a hearing within a reasonable
time (Article 8.1 of the ACHR) had been violated due to the excessive duration of the processing of
damages, which would have enabled the victim to access the rehabilitation required for her disability.
17 The Court found that the delay in concluding criminal proceedings (which, in accordance with
Ecuadorian law, was required to establish responsibility for the payment of damages in civil proceed-
ings) had an impact on the life (health) of the victim, since she was a child and was living with HIV in
poor economic conditions.
condition or due to a specific situation).18 In this way, the IACtHR protected the
rights of Indigenous communities,19 conditions of people deprived of their lib-
erty,20 the rights of migrants,21 the rights of persons with a disability,22 and the
rights of persons in a situation of poverty.23
2.2.2. Procedural Rights
In Claude Reyes et al. v. Chile (2006), the IACtHR used the right of access to infor-
mation to protect the right to the environment indirectly.24 Equally, in the case of
I.V. v. Bolivia (2016), access to sexual and reproductive health was addressed in
terms of the right to access information (informed consent).25
2.2.3. Equality and Nondiscrimination

With regard to equality and nondiscrimination, the IACtHR has ruled cases
where it drew upon the clauses of equality and nondiscrimination enshrined in
Articles 1.1. and 24 of the American Convention. In particular, the IACtHR has
reiterated its jurisprudence that while the nondiscrimination clause contained
in Article 1.1 (self-contained clause) is violated through the discriminatory in-
fringement of any provision of the American Convention, Article 24 is violated
if a domestic regulation is applied in a differentiated manner without objective
18 Case of Ximenes Lopes v. Brazil [2006] IACtHR, Ser. C No. 149, para. 103.
19 For example, in the cases of the Sawhoyamaxa and Xákmok Kásek communities, the Court
subsumed the content of rights such as the right to education, health, housing, food, and water under
the content of the right to a dignified life.
20 See also the following cases among others: Montero-Aranguren et al. (Detention Center of Catia)
v. Venezuela, Pacheco Teruel et al. v. Honduras, and Mendoza et al. v. Argentina. In such situations, the
IACtHR evaluated, through Articles 4 and 5 of the ACHR, conditions relating to health, food, and
water, for example.
21 For example, in the cases of Vélez Loor v. Panama and Nadege Dorzema et al. v. Dominican
Republic, the IACtHR analyzed the lack of medical attention suffered by the victims in these cases
during their time in the custody of the State. In the referenced cases, the IACtHR connected the con-
tent of the right to health with the content of the right to personal integrity.
22 In the case of Chinchilla Sandoval et al. v. Guatemala, the IACtHR analyzed the impact of insuf-
ficient medical attention, resulting in the victim’s acquisition of a physical limitation while deprived
of her liberty. In this case, the content of the right to health of a person deprived of her liberty was
analyzed from the particular point of view of the content of the right to life and to personal integrity.
23 In the case of the Hacienda Brasil Verde Workers v. Brazil, the IACtHR declared that Article
6 (Freedom from Slavery) of the American Convention had been violated since it found that the
working conditions were comparable with contemporary forms of slavery.
24 In the case of Claude Reyes, in the light of the State’s refusal to furnish the victims of the case
with all of the information they required in relation to a deforestation project that was to take place
in Chile and that could be harmful to the environment, the Inter-American Tribunal ruled that the
violated right was the right to access information as per Article 13 of the American Convention.
25 In the case of I.V. v. Bolivia, the IACtHR discussed the violation of the right to sexual and re-
productive health of the victim through the State obligation of active transparency. In this case, the
referenced allegation was associated with the violation of the content of the parameters that must be
used when obtaining informed consent in medical practice.
or reasonable justification.26 Furthermore, we should point out that in those

cases, the IACtHR developed the notions of “suspect categories” and “conditions
of vulnerability,” which single out groups that enjoy enhanced protection under
IAHRS standards.27
In certain cases, the application of domestic regulations discriminates who is
entitled to access certain social rights and who is not, as in the case of the regu-
lation of social security in which same-sex couples are often deprived of such a
right.28 The IACtHR has used this approach to assess similar situations related to
the enjoyment of sexual and reproductive rights, such as in the case of Artavia
Murillo et al. v. Costa Rica (2012), where the IACtHR pronounced a judgment of
“indirect discrimination” that took into account the victim’s disability, gender,
and financial situation in a context of general prohibition of in vitro fertilization
in Costa Rica.29
2.3. Cases Subject to the “Rereading” of ESCER from

1999 to 2017
This section addresses a series of cases in which the categories mentioned

previously, and their subclassifications are not applicable. Instead, the sec-
tion focuses on the “rereading” of the categories explored previously under an
ESCER language. According to this perspective, we can identify three degrees
in which the IACtHR recognizes ESCER in several thematic threads: (a) rights
from an ESCER perspective; (b) rights with a certain degree of social rights; and
(c) emerging phenomena that involve ESCER.
The first of the aforementioned thematic threads that the jurisprudence of
the IACtHR has addressed is the right to work in the context of the dismissal of
judges.30 Furthermore, in cases of sexual violence, the IACtHR has addressed—
albeit not explicitly—standards relating to women’s sexual and reproductive
26 Cf. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica
[1984], Advisory Opinion OC-4/84, Ser. A No. 4, paras. 53, 54, and the case of Ramírez Escobar et al.
v. Guatemala [2018] IACtHR, Ser. C No. 351, para. 272.
27 For example, with regard to disability, sexual orientation, and asylum.
28 In the case of Duque v. Colombia, the IACtHR found that the State had not presented an objec-
tive and reasonable justification for the restriction established in Law 54 of 1990 and Decree 1889
of 1994 based on sexual orientation for access to a survivor’s pension, thus violating Article 24 of
the ACHR.
29 Cf. Case of Artavia Murillo et al. (In Vitro Fertilization) v. Costa Rica [2012] IACtHR, Ser. C No.
257, paras. 288–317.

30 See also (among others): Case of Reverón Trujillo v. Venezuela [2009] IACtHR, Ser. C No. 197;
Case of Chocrón Chocrón v. Venezuela [2011] IACtHR, Ser. C No. 227; Case of the Constitutional
Tribunal (Camba Campos et al.) v. Ecuador. Preliminary Objections [2013] IACtHR, Ser. C No. 268;
and Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador. Preliminary Objection
[2013] IACtHR, Ser. C No. 266.
health.31 In cases concerning Indigenous communities (specifically the ones

regarding the lack of prior consultation), other elements beyond communal
property have been protected.32 Finally, in another thread of cases that includes
medical malpractice cases, the IACtHR defined rights based on the settings in
which the events occurred.33
In a second group, we encounter cases where the victims were trade unionists
seeking protection under Article 16 (Freedom of Association) of the American
Convention.34 Although, in these cases, the IACtHR did not find that States
violated Article 8.1.a of the Protocol of San Salvador, which protects freedom
of association in that instrument, these judgments referred to the Article 8.1.a
provision of the Protocol of San Salvador. Moreover, the case of the Río Negro
Massacres v. Guatemala (2012) dealt with the violation of the right of Maya Achí
communities to “bury the dead” by association with Article 12 (Freedom of
Conscience and Religion) of the ACHR.35 In this sense, the religiousness of the
Mayan communities can be considered a form of cultural manifestation; how-
ever, the IACtHR did not judge the case based on the right to culture; instead,
it linked the right “to bury the dead” with the right to personal integrity and the
right to religion.
Finally, regarding the third category, we can refer, on the one hand, to the
macro phenomena involving the violation of various ESCER and, on the other, to
cases where the violations observed have impacted a vulnerable group. Regarding
the first scenario, some cases relating to massacres have also addressed forced
internal displacement. In such cases, the inter-American jurisprudence has fo-
cused its analysis on the infringement of the freedom of movement (Article 22
of the ACHR). However, national jurisprudence indicates that, for example, the
phenomenon of forced internal displacement is associated with a violation of so-
cial rights such as the right to education, work, health, and food.36
In some of these cases concerning forced internal displacement, such as Yarce
et al. (2016) and Vereda la Esperanza (2017), both against the State of Colombia,
the IACtHR took into account the damages caused to the homes of some of the
31 See also (among others): Case of Fernández Ortega et al. v. Mexico [2010] IACtHR, Ser. C No.
215; Case of Rosendo Cantú et al. v. Mexico [2010] IACtHR, Ser. C No. 216; Case of V.R.P., V.P.C. et al.
v. Nicaragua [2018] IACtHR, Ser. C No. 350.
32 See also (among others): Case of the Saramaka People v. Suriname [2007] IACtHR, Ser. C No.
172; Case of the Garífuna Punta Piedra Community and its Members v. Honduras [2015] IACtHR, Ser.
C No. 304; Case of the Kaliña and Lokono Peoples v. Suriname [2015] IACtHR, Ser. C No. 309.
33 Case of Suárez Peralta v. Ecuador [2013] IACtHR, Ser. C No. 261; Case of Albán Cornejo et al.
v. Ecuador [2007] IACtHR, Ser. C No. 171.

34 See also, for example: Case of Huilca Tecse v. Peru [2005] IACtHR, Ser. C No. 121, and Case of
Baena Ricardo et al. v. Panama [2001] IACtHR, Ser. C No. 72.

35 Cf. Case of the Río Negro Massacres v. Guatemala [2012] IACtHR, Ser. C No. 250, para. 155.
36 In this respect, see the decision of the Constitutional Court of Colombia: T-025/2004.
victims through Article 21 of the ACHR (Right to Property). Regarding the

second scenario, the impact of violations of the rights of a vulnerable group, the
case of Florencio Chitay Nech v. Guatemala (2010) showed that the forced dis-
appearance of the victim influenced the displacement suffered by some of his
family members and, in particular, caused the disruption of the cultural life of
his children, since their displacement resulted in the impossibility of rekindling
their cultural practices.
3. Direct Justiciability via the Protocol of San Salvador
As already mentioned, the Protocol of San Salvador grants direct justiciability

to victims of trade union rights and the right to education. With regard to the
former, although the IACtHR has not so far declared the violation of trade
union rights as covered by the Protocol of San Salvador in an individual case,
in its Advisory Opinion No. 22 on the Entitlement of legal entities to hold rights
under the Inter-American Human Rights System, the IACtHR found that “those
rights are afforded to trade unions, federations and confederations, given that
they represent their members and seek to safeguard and protect their rights and
interests,”37 meaning that the IACtHR could eventually declare a violation of the
trade union rights of both physical persons and legal entities.
With regard to the right to education, in the case of Gonzales Lluy et al., the
IACtHR declared that Ecuador was responsible for the violation of this right as
provided by the Protocol of San Salvador. In the case in question, the IACtHR
recognized that the victim had been expelled from school and denied entry
to other schools because of the discrimination suffered by the victim due to
her condition as HIV positive which, according to her teachers, imposed a
risk to the other students. As a result, the victim suffered intersectional dis-
crimination due to her condition as a person with a disability (social attitude
barriers), but also for her condition as a female, a child, and because of her
economic status.38 In 2020, in the case of Guzmán Abarracín et al. v. Ecuador,
the IACtHR again declared that the right to education as per Article 13 of the
Protocol of San Salvador had been violated when determining the right of the
victim, as a female and a child, to a life free from sexual violence in the educa-
tional sphere.39
37 Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights System.
Advisory Opinion OC-22/16 of February 26, 2016. Ser. A No. 22, para. 97.
38 Case of Gonzales Lluy at al. v. Ecuador [2015] IACtHR, Ser. C No. 298, para. 290.
39 Case of Guzmán Albarracín et al. v. Ecuador [2020] IACtHR, Ser. C No. 405.
4. The New Model of Direct Justiciability
4.1. A Chronicle of ESCER’s Direct Justiciability

through Article 26
The IACtHR’s jurisprudence on the direct justiciability of ESCER began with the
case of the Five Pensioners v. Peru (2003).40 However, the landmark case in this
area was the case of Acevedo Buendía et al. (2009), also against Peru. In this latter
case, although the IACtHR did not establish the violation of Article 26 of the
American Convention (in this case, the violation of the right to a leveled pen-
sion was alleged), the IACtHR restated its jurisdiction over Article 2641 as well
as the interdependence between civil and political rights and economic, social,
and cultural rights. The IACtHR also recognized the progressive development
of and the nonregression obligation associated with such rights, which could be
claimed before competent human rights bodies called upon to resolve potential
violations of human rights.42
In the cases of Furlan et al. v. Argentina (2012) and Suárez Peralta et al.
v. Ecuador (2014),43 the IACtHR resumed the debate over the direct justiciability
of ESCER through Article 26 of the American Convention,44 both cases con-
cerning the right to health and based on the Acevedo Buendía precedent. In the
cases Canales Huapaya et al. v. Peru and Gonzales Lluy et al. v. Ecuador, both
from 2016, the IACtHR considered the possibility of direct justiciability of the
right to work and the right to health, respectively. The IACtHR used these cases
to revitalize its argumentative threads on the topic. In particular, it is worth
highlighting that, in the case of Gonzales Lluy, the IACtHR declared that the
right to education had been autonomously violated through the Protocol of San
Salvador. As such, the Inter-American Court’s interpretation pointed toward the
possible materialization of the justiciability of ESCER.
40 It should be noted that the Inter- American Commission on Human Rights had already is-
sued judgments on ESCER before the IACtHR was asked to rule on this case. For example, the Case
of the Yanomami Community v. Brazil [1985] Case No. 7615, Resolution No. 12/85, Case of Jorge
Odir Miranda Cortez v. El Salvador [2009] Case No. 12.249, Admissibility Report No. 29/01, Case of
Amilcar Menéndez, Juan Manuel Caride et al. v. Argentina [2001] Case No. 11.67, Report No. 03/01,
and Case of Milton García Fajardo et al. v. Nicaragua [2000] Report No. 100/01, Case No. 11.381.
41 Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the
Comptroller”) v. Peru [2009] IACtHR, Ser. C No. 198, paras. 12–19, 97.
42 Cf. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the
Comptroller”) v. Peru [2009] IACtHR, Ser. C No. 198, paras. 101–103.

43 This case, which addressed medical malpractice, expressed the need to declare a violation of the
right to health via Article 26 of the American Convention, illustrating various interpretative options
and their implications. See also my Concurring Opinion in the Case of Suárez Peralta v. Ecuador,
para. 27.
44 In this respect, see the opinions given in the cases in question.
A series of later cases and the opinions given by the judges between 2016 and
201745 provided a fertile argumentative background against which the IACtHR,
in 2017, decided that ESCER could be directly justiciable via Article 26 of
the ACHR.
4.2. The Case of Lagos del Campo Approach
The first time that the IACtHR declared a direct violation of Article 26 of the
ACHR was in the case of Lagos del Campo v. Peru, from 2017, where the IACtHR
sought to protect the right to employment stability and the right of workers to
associate themselves freely for the defense and promotion of their interests (via a
combination of Articles 16 and 26 of the American Convention). In this case, the
Inter-American Court reiterated the existing interdependence and indivisibility
between civil and political rights and economic, social, and cultural rights since
they should be understood comprehensively and collectively, without any hierarchy,
and enforceable in all cases before the competent authority.46
Since then, the IACtHR has declared the violation of ESCER based on Article
26 in eleven contentious cases and has referred to it explicitly in one advisory
opinion. To give an overview of the general aspects of Article 26’s direct justicia-
bility, in the following we briefly discuss the methodology used to determine the
content of Article 26 and the set of mandatory obligations associated with the
analysis of ESCER cases as well as the topics and rights that have been addressed
to date. We also provide examples of the reparations that have been ordered.
4.2.1. Methodology
In general, the IACtHR has applied the following four methodological steps: (a)
the identification of the standards contained in the Charter of the Organization
of American States (Charter of the OAS), (b) the verification of whether the right
is covered by the American Declaration of the Rights and Duties of Man, (c) the
verification of the existence of the right in national and international corpus iuris,
and (d) the verification of whether the right is recognized in the domestic system.
To a great extent, this methodology has been limited by the content of Article 29
of the ACHR through the application of Sections b, c, and d of said article.47
45 In the cases of Chinchilla Sandoval et al. v. Guatemala, I.V. v. Bolivia, Yarce et al. v. Colombia, and
Vereda la Esperanza v. Colombia.

46 Cf. Case of Lagos del Campo v. Peru [2017] IACtHR, Ser. C No. 340, para. 141.
47 The article in question states the following: “Article 29. Restrictions Regarding Interpretation.
No provisions of this Convention shall be interpreted as: [ . . . ]; b. restricting the enjoyment or ex-
ercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of an-
other convention to which one of the said states is a party; c. precluding other rights or guarantees
that are inherent in the human personality or derived from representative democracy as a form of
According to the mandate established in Article 26 of the American

Convention, initially, the IACtHR must determine whether the provision of
Article 26 covers a specific ESCER. At this first step, it is necessary to assess
whether the ESCER—as Article 26 requires—makes a direct reference to the
Charter of the OAS insofar as the rights are derived from economic and social
norms and norms relating to education, science, and culture.
The second step is to refer to the 1948 American Declaration of the Rights
and Duties of Man (American Declaration). According to the argument of
the IACtHR in its Advisory Opinion OC-10/89 that “the member states of
the Organization have signaled their agreement that the Declaration contains
and defines the fundamental human rights referred to in the Charter. Thus the
Charter of the Organization cannot be interpreted and applied as far as human
rights are concerned without relating its norms, consistent with the practice of
the organs of the OAS, to the corresponding provisions of the Declaration.”48
Thirdly, the Inter-American Court stated that, to define the content of the
right, it is also important to turn to other international instruments for the pro-
tection of human rights, including the Protocol of San Salvador itself, as well as
other “general” treaties (such as the International Covenant on Economic, Social
and Cultural Rights) or treaties concerning certain vulnerable groups (such as
the UN Convention on the Elimination of All Forms of Discrimination against
Women, the UN Convention on the Rights of the Child, and the UN Convention
on the Rights of Persons with Disabilities). It is noteworthy that the IACtHR has
also drawn upon soft law when determining what comprises part of the inter-
national corpus iuris.49 Furthermore, the IACtHR has taken into consideration
whether the right in question is recognized by a domestic constitution.
4.2.2. Obligations of the State

Similarly to the rights covered by Articles 3 to 25 of the American Convention,
the IACtHR has indicated that the general obligations to respect and guarantee
rights contained in Article 1 and the adaptation of domestic law stipulated
in Article 2 of the American Convention also apply to ESCER. Likewise,
the nondiscrimination clause in Article 1.1 should be taken into account.
Furthermore, the Court has stated that three types of obligations can be identified
government; or d. excluding or limiting the effect that the American Declaration of the Rights and
Duties of Man and other international acts of the same nature may have.”
48 Interpretation of the American Declaration of the Rights and Duties of Man in the context of
Article 64 of the American Convention on Human Rights [1989], Advisory Opinion, OC-10/89, Ser.
A No. 10, para. 43.
49 For example, in the case of the Lhaka Honhat, the IACtHR took into account—as part of interna-
tional law—the UN Declaration on the Rights of Indigenous Peoples and the American Declaration
on the Rights of Indigenous Peoples.
as a manifestation of the special features of ESCER: (a) obligations of immediate

enforceability, (b) the obligation of progressive development, and (c) the obliga-
tion to prevent regression.
In the case of the first type, the content of these obligations are associated with
requirements that, in themselves, do not require economic resources, such as
the prohibition of discrimination.50 As for the obligation of progressive develop-
ment, the Court has interpreted this obligation as the gradual advancement of a
right—taking available resources into account—in order to achieve the full reali-
zation of that right. Because this obligation implies action, it can be considered a
projection of the general obligation to guarantee rights. Finally, the obligation of
nonregression means that the State must refrain from actions that might damage
the achieved level of enjoyment of a right. This obligation implies a duty to re-
frain from action, which classifies regression prevention as an obligation to re-
spect rights.51
4.2.3. Rights and Topics Addressed52

4.2.3.1. Right to Work
The first three cases that the IACtHR resolved by recognizing the direct justici-
ability of ESCER via Article 26 of the ACHR concerned different aspects of the
right to work. The first of these cases, the case of Lagos del Campo v. Peru (2017),
was set in a context of work relationships between private individuals. In this
case, the IACtHR declared that the dismissal of the victim due to complaints he
had made within the company where he worked was not justified. In this regard,
the IACtHR also found that, among other things, the victim’s defense arguments
were not adequately examined and that this flaw was not remedied by the var-
ious attempts of recourses, including a writ of amparo in which the judge did
not examine Mr. Lagos del Campo’s allegations on substantive rights under the
justification that the matter was res iudicata. In its turn, the IACtHR declared
that the State had violated Articles 8.1 and 25.1 of the ACHR concerning Article
1.1 of the ACHR. In this case, when the IACtHR protected the right to stability
50 In this sense, for example, the preceding interpretation of the IACtHR reflects to a great extent
the stipulations of General Comment No. 3 of the ESCER Committee and has been reiterated in var-
ious subsequent general comments.
51 Even though, in the case of Acevedo Buendía et al., the IACtHR conceived the notion of progres-
sive development and of the prohibition of regression—greatly inspired by the General Comment of
the ESCER Committee—it was not until the case of Cuscul Pivaral et al. that the actual content was
developed and applied to a specific case. In particular, see paras. 147, 148.
52 In addition to the cases mentioned in this section, the IACtHR has found a violation of Article
26 of the ACHR in many subsequent cases (2021–2023). It has also recognized the justiciability of
the rights to freedom of association, collective bargaining, and strike (Advisory Opinion OC-27/21),
as well as the rights to health, water, food, and culture (Advisory Opinion OC-29/22). There is also
a highly relevant environmental case on the agenda of the IACtHR (La Oroya v. Peru), as well as two
advisory opinions on climate emergency and human rights (requested by Chile and Colombia) and
on the right to health care (requested by Argentina).
of employment due to the lack of justification for Mr. Lagos del Campo’s dis-
missal, it did so from a perspective of the State’s obligation to guarantee that legal
remedies protect substantive rights such as, in this case, the right to work.53
Some months later, the IACtHR again declared the violation of Article 26
of the ACHR in the case of the Dismissed Employees of Petroperu et al. v. Peru
(2017). Unlike in the case of Lagos del Campo, this time, the IACtHR found that
the victims were dismissed by the public sector. In addition, and similar to Lagos
del Campo, the IACtHR found a lack of judicial response to the unfair dismissals
of the victims, analyzing the right from the perspective of an obligation to guar-
antee rights.54
Subsequently, the IACtHR examined the dismissal of the three victims for po-
litical discrimination reasons in the case of San Miguel Sosa et al. v. Venezuela
(2018) (specifically because they had signed the recall petition against the then
President Hugo Chávez). In this case—unlike in the previous ones—the IACtHR
found that the violations observed in the sentence (particularly the discrimina-
tion due to political views and the impact on political rights) “had a shared oper-
ative event,” that being the dismissal of the three victims from the public sector.55
In 2020, the IACtHR pronounced a judgment in the cases of Spoltore
v. Argentina (2020) and Employees of the Santo Antônio de Jesus Fireworks Factory
and their Family Members v. Brazil (2020), which dealt with another aspect of the
right to work, related to the right to just and favorable conditions of work. The
first case addressed how the delay in labor proceedings impacted the victim and
his access to justice, aiming to win damages for an alleged occupational disease.
The case analysis considered the State’s acceptance of its responsibility on the
delay in legal proceedings and the fact that the victim had a disability.
The second case, concerning an explosion at a fireworks factory in which
mainly women and children died or were injured, focused on the substantial
and obligational content of the “just and favorable conditions” that ensured the
“safety, health, and hygiene conditions at work.” In its sentence, the IACtHR held
the State internationally responsible since the events occurred without the State’s
“monitoring or scrutiny with the intention of verifying the working conditions of
those working at the fireworks factory and without any action to prevent accidents
despite the activity conducted at the factory being classified by the regulations as
especially dangerous.”56
53 Cf. Case of Lagos del Campo v. Peru [2017] IACtHR, Ser. C No. 340, paras. 141–154.
54 Cf. Case of Dismissed Employees of Petroperu et al. v. Peru [2017] IACtHR, Ser. C No. 344,
para. 193.
55 Cf. Case of San Miguel Sosa et al. v. Venezuela [2018] IACtHR, Ser. C No. 348, paras. 108–109.
56 This case is also important in the context of the topic of businesses and human rights. In this
respect, see the United Nations Guiding Principles on Businesses and Human Rights [2011], UN
Doc. A/HRC/17/31, and IACHR/SRESCER, Report on Business and Human Rights: Inter-American
Standards [2019], OAS/Ser.L/V/II IACHR/SRESCER/REP.1/19.
4.2.3.2. Right to Health
The first case in which the IACtHR ruled that the right to health had been violated
was the case of Poblete Vilches et al. v. Chile (2018). The Inter-American Court
analyzed the violation of obligations of immediate effect in the light of the urgent
situation faced by Mr. Poblete when admitted to a public Chilean hospital in two
occasions. The IACtHR found that his right to health was also violated due to the
failure in obtaining the consent of a representative on his behalf and added that
rights such as the right to access information are rights which, in the presence
of a social right, can change from a right to a guarantee in order to embody the
social right in question—in this case, the right to health of Mr. Vinicio Poblete.57
The second case in which the IACtHR declared a violation of the right to
health was Cuscul Pivaral et al. v. Guatemala (2018). In this case, the right to
health was examined in a context where forty-nine people were living or had
lived with HIV and in association with attacks on the personal integrity of their
family members. In this case, the IACtHR examined the right to health based on
two main strands: the lack of medical care and the impact that insufficient health-
care had in the case of pregnant women with HIV. The sentence broke down the
analysis of the first issue into two time periods: before and after 2004. In the first
period, the IACtHR found that, given that before 2004 the State had not provided
treatment despite the existence of domestic legislation ordering it to do so, the
obligation of progressive development covered by Article 26 of the ACHR had
been violated due to inaction on the part of the State. After 2004, on the other
hand, when the State began to provide medical treatment to patients with HIV,
the Inter-American Court found that essential and interrelated elements of the
right to health had not been guaranteed (i.e., accessibility, availability, accepta-
bility, and quality). Regarding the impact of insufficient healthcare for pregnant
women with HIV, the IACtHR analyzed the referenced violation from a perspec-
tive of intersectional discrimination due to the coexistence of various factors
since some of the women were not given treatments to prevent the transmission
of HIV to their children.58
Finally, in the case of Hernández v. Argentina (2019), the Court held the State
internationally responsible because it had not guaranteed adequate medical at-
tention to Mr. Hernández for conditions associated with his tuberculosis whilst
deprived of his liberty; even after his mother’s complaints and court orders
(which were not adequately executed) requiring the State’s prompt attention in
order to protect the victim’s right.59
57 Cf. Case of Poblete Vilches et al. v. Chile [2018] IACtHR, Ser. C No. 349, paras. 100 et seq.
58 Cf. Case of Cuscul Pivaral et al. v. Guatemala [2018] IACtHR, Ser. C No. 359, paras. 103 et seq.
59 Cf. Case of Hernández v. Argentina [2019] IACtHR, Ser. C No. 395, paras. 62 et seq.
4.2.3.3. Right to Social Security

In the case of Muelle Flores v. Peru (2019), the IACtHR analyzed the impact of the
failure to execute two amparo judgments that recognized the right of the victim.
This constituted a violation of the obligation to guarantee the right in ques-
tion. The IACtHR found that the failure of the State to execute the judgments
represented not only an impact of “alimentary and income-substituting na-
ture” but also a violation of the victim’s right to dignity and personal integrity.60
The case of the National Association of Discharged and Retired Employees of the
National Superintendence of Tributary Administration (ANCEJUB- SUNAT)
v. Peru (2019) was analyzed similarly, with the difference that this case involved
the right to a pension of 598 people.61
4.2.3.4. Right to a Healthy Environment

In Advisory Opinion No. 23, the IACtHR declared that the right to a healthy
environment could be understood as a justiciable right under Article 26 of the
American Convention. Further, it also stipulated that the obligations of respect,
guarantee, and nondiscrimination applied when interpreting this right content.
The IACtHR added that given the relationship between the right to a healthy en-
vironment and other rights, certain rights are vulnerable to environmental deg-
radation (such as the right to life, personal integrity, and health) and that some
rights have an instrumental nature when it comes to guaranteeing the right to a
healthy environment (such as the right to access information and the right to po-
litical participation).62
The Court found that the right to a healthy environment was also violated in
the Case of the Community of Lhaka Honhat v. Argentina, which is addressed in
the following section due to its implications for other rights.
4.2.3.5. The Right of Indigenous Peoples to Land and ESCER (Food, Environment,
Water, and Cultural Identity)
The case of the Community of Lhaka Honhat v. Argentina (2020) is worthy of spe-
cial attention since the IACtHR found that various ESCER protected by Article
26 of the American Convention were jointly violated in the case.
We should highlight two differences with regard to previous cases related to
Indigenous peoples, where the Inter-American Court subsumed the protection
of ESCER under the content of the right to collective property. First, in the Lhaka
Honhat case, an implicit distinction was made between “land” and “territory.”
60 Cf. Case of Muelle Flores v. Peru [2019] IACtHR, Ser. C No. 375, paras. 167 et seq.
61 Cf. Case of the National Association of Discharged and Retired Employees of the National
Superintendence of Tributary Administration (ANCEJUB-SUNAT) v. Peru [2019] IACtHR, Ser. C No.
394, paras. 151 et seq.
62 See OC-23/17, The Environment and Human Rights, November 15, 2017.
Secondly, the right to the territory was protected explicitly via Article 26 of the
American Convention, declaring and refining—for the first time in a conten-
tious case—the rights to a healthy environment, adequate food, water, and cul-
tural identity.
Regarding the first aspect, one of the prior limitations in this matter was
that the violation of rights linked with the territory (for example, the right to
water) was confined to the concept of “land,” therefore attached to a notion of
production. Although the IACtHR had already indicated that the concept of
lands must also include the concept of territories, this subsumption of concepts
meant that when the international responsibility was determined, the remedies
were restricted to the restitution of “land” or were aimed at rectifying possible
shortfalls in previous consultation processes. In the case of Lhaka Honhat, the
IACtHR found a violation of the right to property in Article 21 of the American
Convention because the guarantee of the right to communal property was insuf-
ficient since the State did not implement adequate mechanisms for titling and
demarcation, thus failing to guarantee the right of communal ownership.
Concerning the second aspect, which is concerned with the protection of the
social, cultural, and environmental rights of the territory via Article 26 of the
American Convention, the IACtHR isolated the elements that it had previously
subsumed under the concept of communal property to give substance to and in-
dividualize violations of the said rights.
It is worth noting that this would not have been possible without the juris-
prudence on the separate and direct justiciability of ESCER that the IACtHR
has developed since the case of Lagos del Campo. The separate violation of con-
cerning social, cultural, and environmental rights was alleged by the represent-
atives of the victims in their petition to the IACtHR, invoking the precedents
of the Court in this area with respect to labor rights and the right to health, to a
healthy environment, and to social security mentioned previously. Similarly, the
numerous amicus curiae briefs presented in the case, some of which linked direct
justiciability to the United Nations’ 2030 Agenda and its objectives for sustain-
able development, are also important. Thus, in Lhaka Honhat, a series of relevant
precedents already existed, supporting the separate analysis of civil and political
rights and ESCER.
As well as declaring the separate violation of the rights to participate in cultural
life (in relation to cultural identity), a healthy environment, and sufficient food
and water and giving substance to these rights, from our standpoint the IACtHR
addressed the actual magnitude of the violations suffered by members of these
peoples and communities, being considered collective subjects with rights, when
they cannot fully dispose of and use the land and the elements linked with the
territory (natural resources). All in all, this interpretation constitutes a holistic
vision when it comes to the protection of Indigenous peoples’ rights.
4.2.4. Reparation Measures

Among reparation measures, those aiming to prevent similar events from
perpetuating the violation of rights stand out. To that end, it is important to
highlight certain reparations cases that aim to have a transformative impact
in ESCER.
In the case of Poblete Vilches et al. v. Chile (2018), the IACtHR included as
guarantees of nonrepetition: (i) the adoption of permanent education and
training programs for medical students and medical professionals, as well as all
the personnel of the healthcare and social security systems, including mediation
bodies, on the appropriate treatment of the older person in health-related matters
from the perspective of human rights and differentiated impacts, referring to the
right to health, the right of access to information, and judicial decisions; (ii) the
duty to report to the Court on the progress made in relation to the Sotero del Río
Hospital; (iii) designing a publication or booklet outlining the rights to health
of older persons; and iv) the adoption of the necessary measures to design an
overall policy for comprehensive protection of older persons.63
Secondly, in the case of ANCEJUB-SUNAT v. Peru (2019), the IACtHR found
that insofar as it warned that other members of the association could find them-
selves in similar situations to those analyzed in the case, given the possible lack
of execution of court rulings about the adjustment of their pensions, the IACtHR
found appropriate to order the creation of a register identifying: (a) other
members of ANCEJUB-SUNAT who were not listed as victims in the case; and
(b) other persons who were not members of the association but were discharged
and retired employees of the National Superintendence of the Tributary
Administration facing similar conditions to the victims in the case.64
Thirdly, in Cuscul Pivaral et al. v. Guatemala (2018), the IACtHR ordered
that the State designed a mechanism to guarantee the accessibility, availability,
and quality of health services for persons living with HIV. The Inter-American
Court specified that the design of this mechanism must involve the partici-
pation of the medical community and other sectors.65 This measure aimed to
impel government institutions to use deliberation and discussion to—together
with other medical care sectors—design strategies and actions for providing ad-
equate medical attention. In this sense, the measure attempts to create effec-
tive mechanisms for the materialization of ESCER on the ground so that they
become a medium through which stakeholders participate in decision-making
processes that will affect them rather than only remaining confined in judicial
decisions.
63 Cf. Case of Poblete Vilches et al. v. Chile [2018] IACtHR, Ser. C No. 349, paras. 232 et seq.
64 Cf. Case of the National Association of Discharged and Retired Employees of the National
Superintendence of Tributary Administration (ANCEJUB-SUNAT) v. Peru [2019] IACtHR, Ser. C No.
394, paras. 225, 226, 227.
65 Cf. Case of Cuscul Pivaral et al. v. Guatemala [2018] IACtHR, Ser. C No. 359, para. 226.
In the above-mentioned Lhaka Honhat case, the IACtHR ordered—although

not as a nonrepetition measure—the identification of critical situations of lack of
access to water and food and the formulation of a plan of action with measures to
mitigate situations of this kind. The sentence specified a series of concrete objectives
that the plan had to cover. In the same case, the IACtHR ordered the creation of a
community development fund that was innovative to regenerate Indigenous iden-
tity. Accordingly, the IACtHR ordered that this fund be “earmarked for actions
addressed at the recovery of the indigenous culture, including among its uses,
without prejudice to any others, the implementation of programs relating to food
security, and the documentation, teaching and dissemination of the history of the
traditions of the indigenous communities that are victims.”66
Lastly, in the recent case of the Employees of the Fireworks Factory v. Brazil
(2020), the Inter-American Court ordered that the State adopted a systematic
policy of periodic inspections in premises for the production of fireworks with the
aim of verifying occupational health and safety conditions and supervising com-
pliance with fireworks storage standards, meaning that the inspectors must pos-
sess knowledge about occupational health and safety and that the State can turn
to organizations such as the International Labour Organization and UNICEF
to seek advice or support when complying with the Inter-American Court’s
measure. The IACtHR also ordered, as a nonrepetition measure, that the State
must design and execute a socioeconomic program for the population of Santo
Antônio de Jesus in order to confront the lack of alternative types of work, par-
ticularly for children under the age of sixteen and for women of African descent
living in conditions of poverty.67
The challenges relating to implementing ESCER and making them effective in

Latin America and the Caribbean are increasing. The region remains the most un-
equal on Earth, with high poverty, inequality, and social exclusion.68 Linking the
analysis of ESCER presented in this chapter to the challenges engendered by the
66 Cf. Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina

67 The sentence states that this program must include the creation of professional and/or technical
training courses that enable workers to enter other labor markets, such as commerce, farming, IT,
and other important economic activities in the region, as well as measures aiming to confront school
dropout rates due to minors entering the workforce and campaigns raising awareness about working
rights and the risks involved in the production of fireworks. Moreover, this program must take into
account the main economic activities in the region, the possible need to promote other economic
activities, the need to ensure the adequate training of workers to undertake certain professional ac-
tivities, and the obligation to eradicate child labor in accordance with standards of international law.
68 See also the ECLAC reports on the Social Panorama of Latin America (n. 2), years 2017, 2018,
and 2019.
COVID-19 pandemic, it is worth highlighting that, according to the Economic

Commission for Latin America and the Caribbean, scenarios resulting from the
effects of the pandemic are discouraging, and “poverty, extreme poverty and in-
equality will increase in all countries of the region.”69 This UN body estimates
that, in 2020, poverty in Latin America will rise by at least 4.4 percentage points
in comparison to the previous year, “bringing the total number of people living
in poverty to 214.7 million (34.7% of the region’s population).”70
In this vein, the Inter-American Commission on Human Rights71 and the
Inter-American Court of Human Rights72 have expressed their concern and
highlighted the scenarios and impacts of the pandemic on different human
rights, not only the rights to life and personal integrity but also—with a par-
ticular intensity and with differential and intersectional impacts—the rights
to health, work, social security, education, the environment, food, water, and
housing, among other ESCER.73 They are also consistent in indicating the impact
on persons and groups in a particular situation of vulnerability, which, histori-
cally, have found themselves in a situation of social exclusion or disadvantage.74
Today, more than ever, the rich and growing standards on ESCER promoted
by the Inter-American System—and tuned with the United Nation’s 2030 Agenda
and its objectives of sustainable development75—are essential for constitutional
democracies to face the challenges they currently encounter in the region.
69 Economic Commission for Latin America and the Caribbean (ECLAC), The Social Challenge in
Times of COVID-19 [2020] Santiago de Chile, United Nations, 1.

70 Among these persons, extreme poverty will rise by 2.6 percentage points (15.9 additional people
compared with 2019, to affect a total of 83.4 million people). Cf. ibid., 2.
71 Pandemic and Human Rights in the Americas [2020] IACHR, Resolution 1/2020.
72 COVID-19 and Human Rights: The problems and challenges must be addressed from a human
rights perspective and with respect for international obligations [2020], Statement of the Inter-
American Court of Human Rights 1/20.
73 Cf. Statement of the Inter- American Court of Human Rights 1/20. COVID-19 and Human
Rights (n. 72), 2 and 3, and Resolution 1/2020 of the IACHR Pandemic and Human Rights in the
Americas (n. 71), 7.
74 Older people, children, adolescents, women, persons deprived of their liberty, Indigenous
and tribal peoples, persons in a situation of human mobility (migrants, stateless persons, victims
of human trafficking, and victims of forced internal displacement), LGBTIQ+persons, persons of
African descent, persons with a disability, persons living in poverty, persons living from the proceeds
of informal work, persons living on the street, defenders of human rights, social leaders, healthcare
professionals, and journalists.
75 For example, ending hunger (goal 2), health and well- being (goal 3), quality education
(goal 4), clean water and sanitation (goal 6), decent work (goal 8), reducing inequality (goal 10),
combating climate change, conserving oceans and marine resources, and protecting ecosystems
(goals 13–15), and promoting peace, justice, and solid institutions (goal 16). In this regard, the Inter-
American Commission has stated: “The 2030 Agenda is a global agenda and therefore all the States
of the Americas have committed to attaining the targets thereof. This Agenda constitutes a strategic
opening for working with States in the implementation of ESCER.” and “Overcoming the poverty
and exclusion that exist in the region is an ongoing challenge. In this regard, it bears highlighting that
the intervening factors that keep people in poverty are interrelated and encompass economic, social,
cultural, and environmental rights, in addition to civil and political rights. [ . . . ]. Undoubtedly, work
on the 2030 Agenda is essential in this regard [ . . . ].” Annual Report of the Inter-American Commission
on Human Rights 2017, Annual Report of the Office of the Special Rapporteur on Economic, Social,
Cultural and Environmental Rights (SRESCER) [2017] IACHR, OAS/Ser.L/V/II, paras. 130, 131.
II.2
The Inter-American Human Rights
System’s Impact on the Protection of the
Right to a Healthy Environment
By Henry Jiménez Guanipa and María Barraco
1. Introduction
The right to a healthy environment was first recognized in 1972 in the

Declaration of the UN Conference on the Human Environment, also known
as the Stockholm Declaration.1 Since then, more than one hundred countries
have included this right in their constitutions.2 Additionally, in 1992, the Rio
Declaration on Environment and Development provided—in its first principle—
that “[h]‌uman beings are at the centre of concerns for sustainable development”
and that “[t]hey are entitled to a healthy and productive life in harmony with
nature.”3 Similarly, Christopher Weeramantry, while serving as vice president of
the International Court of Justice in 1997, issued a separate opinion in the case of
Gabčikovo-Nagymaros Project (Hungary/Slovakia), in which he stated that “[t]he
protection of the environment is [ . . . ] a vital part of contemporary human rights
doctrine, for it is a sine qua non for numerous human rights such as the right to
health and the right to life itself.”4
International environmental law and international human rights law are sepa-
rate bodies of law and impose distinct obligations on States.5 The “environmental
rule of law” (the state of affairs in which “laws are widely understood, respected,
and enforced and the benefits of environmental protection are enjoyed by people
1 David Boyd, “The Effectiveness of Constitutional Environmental Rights” (Yale School of the
Environment, April 26–27, 2013), <https://environment.yale.edu/> (accessed October 3, 2021).

2 Marcos Orellana, “The Case for a Right to a Healthy Environment” (HRW Website, March 1,
2018), at <https://www.hrw.org/news/2018/03/01/case-right-healthy-environment> (accessed

October 3, 2021).
3 Rio Declaration on Environment and Development, First principle.
4 Gabcikovo-Nagymaros Dam (Hungary v. Slovakia) [1997], ICJ Rep. 9, 91.
5 Their differences and similarities are explained in Gonzalo Aguilar Cavallo, “Los derechos
ambientales en el Sistema Interamericano de Protección de los Derechos Humanos,” in Gonzalo

Aguilar Cavallo (ed.), Los derechos fundamentales como inspiración y marco del cambio constitucional
(Editorial Jurídica de chile 2017), 148–150.
Henry Jiménez Guanipa and María Barraco, The Inter-American Human Rights System’s Impact on the Protection of
the Right to a Healthy Environment In: The Impact of the Inter-American Human Rights System. Edited by: Armin von
Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press.
© Henry Jiménez Guanipa and María Barraco 2024. DOI: 10.1093/oso/9780197744161.003.0013
238 Henry Jiménez Guanipa and María Barraco
and the planet”),6 however, is undoubtedly related to human rights.7 Even

though environmental rights were incorporated relatively late into human rights
systems,8 several regional instruments on human rights recognize the right to
a healthy environment, including the African Charter on Human and Peoples’
Rights Article 249 and the International Covenant on Economic, Social and
Cultural Rights Article 12. None of the main treaties in the European Human
Rights System expressly recognize the right to a healthy environment, but the
right is nevertheless protected through other rights, such as the right to life and
the right to respect for private and family life.10
In 2011, the Human Rights Council adopted Resolution 16/11 on Human
rights and the environment, in which it stated that “environmental damage can
have negative implications, both direct and indirect, for the effective enjoyment
of human rights” and that “environmental damage is felt most acutely by those
segments of the population already in vulnerable situations.”11 Additionally, in
2012, the Human Rights Council issued the Resolution 19/10, which emphasized
that “certain aspects of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment require further study and clar-
ification.”12 In 2018, John H. Knox, former Special Rapporteur on human rights
and the environment, said that “[t]‌here can no longer be any doubt that human
rights and the environment are interdependent”13 and that “[t]he full enjoyment
of human rights [ . . . ] depends on biodiversity, and the degradation and loss
6 UNEP, “Environmental Rule of Law: First Global Report” (UNEP Website, January 24, 2019),
<https:// w ww.unep.org/ resour c es/ ass e ssm e nt/ e nviro n men t al- r ule- l aw- f irst- g lo b al- rep ort>
(accessed October 3, 2021).
7 Ibid., 25.
8 UNGA, Report by Special Rapporteur John H. Knox (December 24, 2012), UN Doc. A/HRC/22/
43, para. 7.
9 An important case in the jurisprudence of the African Human Rights System is Social and
Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR)
v. Nigeria, Communication No. 155-96 (ACHPR, October 27, 2001), concerning oil contamination
in the region where the Ogoni community lived. In this case, the African Commission on Human
and Peoples’ Rights recognized the strong relationship between the environment and human rights,
detailed States’ obligations to protect the environment, and concluded that Nigeria had violated
Article 24 of the African Charter on Human and Peoples’ Rights, among other provisions.
10 Clarissa Castillo Cuibillo, “El derecho a un ambiente sano y su relación con el cambio climático,”
in Henry Jiménez Guanipa and Javier Tous Chimá (eds.), Cambio Climático, energía y derechos
humanos: Desafíos y Perspectivas (Ediciones Ántropos 2017), 40. Among the cases of the ECtHR are
the following: Fadeyeva v. Russia [2005], ECtHR, App. No. 55723/00; Okyay et al. v. Turkey [2005],
ECtHR, App. No. 36220/97; Giacomelli v. Italy [2006], ECtHR, App. No. 59909/00; Marangopoulos
Foundation for Human Rights (MFHR) v. Greece [2006], European Committee of Social Rights,
Complaint No. 30/2005.
11 Human Rights Council, Resolution 16/11: Human rights and the environment (2011), UN Doc.
A/HRC/RES/16/11, Preamble.
12 Human Rights Council, Resolution 19/10: Human Rights and the environment (2012), UN Doc.
A/HRC/RES/19/1.
13 OHCHR, “UN expert calls for global recognition of the right to safe and healthy environment”
(OHCHR Website, March 5, 2018), <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.

aspx?NewsID=22755&LangID=E> (accessed November 19, 2021).
Inter-American Human Rights System’s Impact 239
of biodiversity undermine the ability of human beings to enjoy their human

rights.”14 Also in 2018, the UN General Assembly adopted the Declaration on
the Rights of Peasants and Other People Working in Rural Areas, which contains
several provisions related to environmental protection. Article 18, for example,
provides that “[p]easants and other people working in rural areas have the right
to the conservation and protection of the environment and the productive ca-
pacity of their lands, and of the resources that they use and manage.”
The inextricable link between the environment and the full enjoyment of
human rights is widely recognized. A clean, healthy, and functional environ-
ment is integral to the enjoyment of the rights to life, human dignity, health,
food, and more. The Inter-American Court of Human Rights (Inter-American
Court, or IACtHR) acknowledged this in its Advisory Opinion OC-23/17,15
and so did the Inter-American Commission on Human Rights (Inter-American
Commission, or IACHR) in its report on “Business and Human Rights.”16 The
IACtHR also recently established, in the case of Lhaka Honhat Association (Our
Land) v. Argentina, that Article 26 of the American Convention on Human
Rights (American Convention, or ACHR) encompasses the right to a healthy
environment.
There is also a general agreement that climate change poses the gravest threat
toward the environment and all living species, as it will restrict access to the re-
sources necessary to life. In 2019, UN High Commissioner for Human Rights
Michelle Bachelet said “[w]‌e are burning up our future” to underscore the neg-
ative impact that climate change has on human rights.17 The international com-
munity has issued warnings about this phenomenon for almost fifty years and,
at the same time, has contributed to the development of a normative framework
to combat climate change and to prevent a global temperature increase of more
than two degrees. Profound change, however, is required for these efforts to
succeed.18
14 UNGA, “Report by Special Rapporteur John H. Knox” (February 7, 2018), UN Doc. A/HRC/
37/58/Add.1, para. 78.

15 See Advisory Opinion 23/ 17: Environment and Human Rights, Ser. A No. 23 (IACtHR,
November 15, 2017).
16 IACHR, “Business and Human Rights: Inter-American Standards” (IACHR Website, November
1, 2019), <http://www.oas.org/en/iachr/reports/pdfs/Business_Human_Rights_Inte_American_St
andards.pdf> (accessed November 19, 2022), para. 46.
17 Michelle Bachelet, “Global update at the 42nd session of the Human Rights Council” (OHCHR
Website, September 9, 2019), <https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.

aspx?NewsID=24956&LangID=E> (accessed November 15, 2022).
18 IPCC, “Global Warming of 15°C—An IPCC Special Report on the impacts of global warming of
15°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context
of strengthening the global response to the threat of climate change, sustainable development, and
efforts to eradicate poverty” (IPCC Website, 2019), <https://www.ipcc.ch/site/assets/uploads/sites/
2/2019/06/SR15_Full_Report_High_Res.pdf> (accessed November 15, 2022).
The 2030 Agenda for Sustainable Development, adopted in 2015 by the UN

General Assembly through Resolution 70/1, was a significant step toward the
protection of the environment.19 The resolution recognizes that climate change is
one of the greatest contemporary challenges and includes as one of its objectives
“[t]‌ak[ing] urgent action to combat climate change and its impacts.” The resolu-
tion also states that one of the three dimensions to achieve sustainable develop-
ment is the environmental dimension and establishes specific actions related to
the environment in other goals to eliminate poverty, to ensure decent work and
economic growth, and to promote responsible consumption and production.
Civil society has played an active role in the development of the right to a
healthy environment, especially by using domestic and international instruments
that protect the right to participate in environmental issues, such as the UN
Economic Commission for Europe’s Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice in Environmental Matters
(Aarhus Convention) and the Regional Agreement on Access to Information,
Public Participation and Justice in Environmental Matters in Latin America and
the Caribbean (Escazú Agreement).20 The rights of access to information, par-
ticipation, and access to justice in environmental matters are key to the environ-
mental rule of law, since individuals are affected by the environment and advocate
to ensure that States comply with their obligations to protect the environment.21
This chapter is structured into two main sections. The first section presents
inter-American instruments and standards that recognize and protect the right
to a healthy environment as well as other, related human rights. These con-
tribute to an international corpus juris on environmental protection and human
rights. The second section examines examples in which domestic courts apply
inter-American standards to protect environmental human rights. Finally, the
chapter concludes that a ius commune on environmental rights is emerging and
that it will continue to be strengthened by both the international human rights
mechanisms and domestic courts.
2. The Protection of Environmental Human Rights in the

Even though the Inter-American Human Rights System (Inter- American

System, or IAHRS), during the first several decades of its existence, did not
19 UNGA, Resolution 70/1: Transforming our world: the 2030 Agenda for Sustainable Development
(2015), UN Doc. A/RES/70/1.

20 Adopted on March 2018 within the framework of the Economic Commission for Latin America
and the Caribbean (ECLAC), the Escazú Agreement entered into force in April 2021. It is a key in-
strument for the protection of environmental rights in Latin America.
21 UNEP (n. 6), 21.
consider the relation between human rights violations and environmental

damage,22 it has since recognized the right to a healthy environment as protected
by its normative framework. The IAHRS acquis is composed of the American
Declaration of the Rights and Duties of Men (American Declaration), the
Charter of the Organization of American States (OAS Charter), the Inter-
American Democratic Charter, and the American Convention and its subse-
quent protocols, as well as the IACtHR and the IACHR’s interpretations of these
instruments. Additionally, with the entry into force of the Escazú Agreement in
April 2021, the region now has a specific treaty that contains guiding principles
on human rights and the environment.
The preamble of the American Declaration states that “[t]‌he American
peoples have acknowledged the dignity of the individual, and their national
constitutions recognize that juridical and political institutions, which regulate
life in human society, have as their principal aim the protection of the essential
rights of man and the creation of circumstances that will permit him to achieve
spiritual and material progress and attain happiness.” In the case of Kawas
Fernández v. Honduras, the IACtHR determined that there is an undeniable
link between the environment and the enjoyment of other human rights, which
are negatively affected by the environmental degradation and climate change.23
The preamble of the American Declaration should be read in light of the Inter-
American Court’s interpretation in Kawas Fernández, since it would be impos-
sible to achieve spiritual and material progress and happiness in a contaminated
environment. Moreover, even if the American Declaration does not mention in
particular the right to a healthy environment, it includes rights related to the en-
vironment, such as the rights to life, property, health, and work.24
The OAS Charter establishes the obligation of member States to ensure the “in-
tegral development” of their peoples, which the Executive Secretariat for Integral
Development of the OAS has defined as “the general name given to a host of
policies that work in tandem to foster sustainable development.”25 Additionally,
the preamble of the Inter-American Democratic Charter recognizes that the in-
tegral development of human beings depends on a safe environment, and Article
22 Daniel Cerqueira, “Derechos Humanos y Ambiente: Contribuciones al Sistema Interamericano,”
in Henry Jiménez Guanipa and Marisol Luna Leal (eds.), Crisis climática, transición energética y
derechos humanos. Tomo II. Protección del medio ambiente, derechos humanos y transición energética
(Ediciones Ántropos 2020), 157.
23 Kawas Fernández v. Honduras [2009], IACtHR, Ser. C No. 196, para. 148.
24 Dinah Shelton, “Derechos ambientales y obligaciones en el sistema interamericano de derechos
humanos” [2010] 6 Anuario de Derechos Humanos, 114; “Indigenous an Tribal Peoples’ Rights over
their Ancestral Lands and Natural Resources” (IACHR, 2009), <https://www.oas.org/en/iachr/ind
igenous/docs/pdf/ancestrallands.pdf > (accessed November 19, 2021), 191.
25 OAS, “Integral Development,” <http://www.oas.org/en/topics/integral_development.asp>
(accessed November 22, 2021).

15 establishes that “[t]‌he exercise of democracy promotes the preservation and

good stewardship of the environment.”
On June 2001, the General Assembly of the OAS adopted Resolution 1819 on
“Human Rights and the Environment,” which states that the effective enjoyment
of human rights can improve environmental protection, thereby recognizing the
importance of promoting both environmental protection and the enjoyment of
human rights.26 Subsequently, in June 2008, the OAS General Assembly adopted
Resolution 2429 on “Human Rights and Climate Change in the Americas,” which
recognizes the negative impact that climate change might have on human rights
and instructs the IACHR to contribute “to the efforts to determine the possible
existence of a link between adverse effects of climate change and the full enjoy-
ment of human rights.”27 The General Assembly also adopted, in June 2015, the
American Declaration on the Rights of Indigenous Peoples, Article 19 of which
recognizes the right to a healthy environment.
As for the ACHR, Article 4 protects the right to life, which includes the
right to a dignified life (vida digna).28 The latter has to be analyzed in light of
other human rights, such as the right to a healthy environment.29 American
Convention Article 26, for example, provides for “the full realization of the rights
implicit in the economic, social, educational, scientific, and cultural standards
set forth in the Charter of the Organization of American States,” which the Inter-
American Court interpreted to include the right to a healthy environment in the
recent Lhaka Honhat v. Argentina case.30
Notwithstanding the provisions of the ACHR, the main instrument protecting
the right to a healthy environment is the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural
Rights (Protocol of San Salvador). Article 11 of the Protocol of San Salvador ex-
pressly recognizes the right to a healthy environment, providing that “[e]‌veryone
shall have the right to live in a healthy environment and to have access to basic
public services” and that “[t]he States Parties shall promote the protection, pres-
ervation, and improvement of the environment.”
The Inter-American Commission has also developed standards related to
the environment in various reports and cases. In its 1997 “Report of the Human
Rights Situation in Ecuador,” the IACHR analyzed the impact of the oil extrac-
tion on the rights to life and health of Indigenous communities living in areas
26 Inter-American Forum on Environmental Law, Human Rights and the Environment (2011), AG/
RES. 1819 (XXXI-O/01).

27 OAS General Assembly, Human Rights and Climate Change in the Americas (2008), AG/RES.
2429 (XXXVIII-O/08).
28 “Instituto de Reeducación del Menor” v. Paraguay [2004], IACtHR, Ser. C No. 112, para. 159.
29 Yakye Axa Indigenous Community v. Paraguay [2005], IACtHR, Ser. C No. 125, para. 163.
30 Lhaka Honhat (nuestra tierra) v. Argentina [2020], IACtHR, Ser. C No. 400, para. 202.
with oil fields. The Inter-American Commission emphasized that Ecuador must
protect the environment against contamination, as well as the lives of the region’s
inhabitants, because “where environmental contamination and degradation
pose a persistent threat to human life and health, the foregoing rights [to life
and to physical security and integrity] are implicated.”31 Similarly, the IACHR
stated that “[s]‌evere environmental pollution may pose a threat to human life
and health, and in the appropriate case give rise to an obligation on the part of a
[S]tate to take reasonable measures to prevent such risk, or the necessary meas-
ures to respond when persons have suffered injury.”32
Additionally, in its thematic report on “Indigenous and Tribal Peoples’
Rights over their Ancestral Lands and Natural Resources,” the Inter-American
Commission stated that “State members of the OAS must prevent the degrada-
tion of the environment in order to comply with their human rights obligations
in the framework of the Inter‐American system.”33 In its thematic report on
“Business and Human Rights,” the IACHR established that corporations must
also respect the right to a healthy environment by taking into consideration all
relevant international standards and principles, guaranteeing access to infor-
mation and effective reparation for victims of environmental degradation, and
more.34 In the report, the Inter-American Commission also emphasized the
importance of the ratification of the Escazú Agreement. Moreover, the IACHR
published the Resolution on Climate Emergency and Human Rights in the
Americas,35 with a section on “Human rights in the context of environmental de-
terioration and the climate emergency in the Americas” developing various state
obligations related to the right to a healthy environment. The Resolution also has
a section that develops the rights of Indigenous peoples.
With respect to the IACtHR, it has examined the right to a healthy environ-
ment in several cases concerning Indigenous peoples’ rights to their communal
lands.36 The Inter-American Court also recognized the existence of the right to
access information about matters of public interest in the case of Claude Reyes
v. Chile, in which part of the information requested was related to the environ-
mental impact of a potential industrialization project.
31 IACHR, “Report on the situation of human rights in Ecuador” (1997), < http://www.cidh.org/
countryrep/ecuador-eng/index%20-%20ecuador.htm> (accessed October 3, 2021).

32 Ibid.
33 Kawas Fernández v. Honduras (n. 23), para. 193.
34 Advisory Opinion 23/17 (n. 15), para. 46.
35 IACHR, “Resolution No. 3/2021. Climate Emergency: Scope of Inter-American Human Rights
Obligations” (2021), <https://www.oas.org/en/iachr/decisions/pdf/2021/resolucion_3-21_ENG.

pdf> (accessed October 25, 2023).
36 Pueblos Kaliña y Lokono v. Surinam [2015], IACtHR, Ser. C No. 309; Comunidad Indígena
Xákmok Kásek v. Paraguay [2010], IACtHR Ser. C No. 214, para. 313; Pueblo Saramaka v. Surinam
[2007], IACtHR, Ser. C No. 172; Kichwa de Sarayaku v. Ecuador [2012], IACtHR, Ser. C No. 245.
In addition, in its Advisory Opinion OC-23/17 on “The Environment and

Human Rights,” the Inter-American Court recognized that the right to a healthy
environment has both a collective and an individual dimension.37 The IACtHR
also emphasized that “as an autonomous right, the right to a healthy environ-
ment, unlike other rights, protects the components of the environment, such as
forests, rivers and seas, as legal interests in themselves, even in the absence of
the certainty or evidence of a risk to individuals.”38 At the same time, the Inter-
American Court stated that “adequate protection of the environment is essential
for human well-being, and also for the enjoyment of numerous human rights,
particularly the rights to life, personal integrity and health, as well as the right to
a healthy environment itself.”39
When determining the scope of the right to a healthy environment, the Inter-
American Court considered the domestic laws of States of the region that rec-
ognize this right, establish the obligation to carry out environmental impact
assessments, provide for public participation, and incorporate the precautionary
principle. The IACtHR’s approach to environmental issues thus evolved through
dialogue with domestic legal systems.
In the case of Lhaka Honhat v. Argentina, the Inter-American Court found,
for the first time, that a State had violated the right to a healthy environment. The
IACtHR concluded that Argentina had failed to fulfill its due diligence obligation
to prevent third parties from interfering in the Indigenous communities’ right to
a healthy environment and that the environmental degradation had also affected
other human rights (to food, water, and cultural identity).
The Inter-American Human Rights System thus has recognized the right to a
healthy environment and has theorized its interdependence with the enjoyment
of other human rights. The following sections examine this right in further de-
tail, with a focus on: (a) the protection of the right to a healthy environment,
(b) the right to a healthy environment and Indigenous communities, and (c) the
right to access information concerning and to participate in environmental
matters.
37 Advisory Opinion 23/17 (n. 15), para. 59 (“The human right to a healthy environment has been
understood as a right that has both individual and also collective connotations. In its collective di-
mension, the right to a healthy environment constitutes a universal value that is owed to both present
and future generations. That said, the right to a healthy environment also has an individual dimen-
sion insofar as its violation may have a direct and an indirect impact on the individual owing to its
connectivity to other rights, such as the rights to health, personal integrity, and life. Environmental
degradation may cause irreparable harm to human beings; thus, a healthy environment is a funda-
mental right for the existence of humankind.”).
38 Ibid., para. 64.
2.1. The Protection of the Right to a Healthy Environment
The first cases in which the IACtHR discussed the right to a healthy environment
concerned the rights of Indigenous communities. For example, in the case of the
Kaliña and Lokono Peoples v. Suriname, the Inter-American Court decided that
the protection, conservation, and improvement of the environment is “an essen-
tial human right related to the right to a dignified life derived from Article 4 of
the [American] Convention.”40
In 2017, the Inter-American Court took important steps toward filling gaps
in the law relating to the right to a healthy environment in its Advisory Opinion
OC-23/17.41 First, the IACtHR established that States have extraterritorial ju-
risdiction over environmental problems that cause transboundary harm, which
means that “States must ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States or of areas beyond the
limits of their jurisdiction.”42 The Inter-American Court also dedicated a section
of the Advisory Opinion to the obligations stemming from the right to a healthy
environment, in which it established that States have a due diligence obligation
“to take ‘all appropriate measures’ to achieve, progressively, the full effectiveness”
of the right to a healthy environment.43 Due diligence encompasses four main
duties:
1. The duty to prevent, which includes the obligations to safeguard human

rights and to ensure accountability and reparations when they are violated.
According to the IACtHR, this duty encompasses the above-mentioned
obligation not to cause damage to the environment in other States. It also
encompasses the obligations to regulate, supervise, and monitor activi-
ties that might cause environmental damage; to require environmental
impact assessments; and to establish contingency and mitigation plans.44
Similarly, the IACHR has interpreted the duty to prevent to require States
to supervise and regulate activities that could harm the environment.45
2. The duty to act in accordance with the precautionary principle by taking
measures to protect the environment “in cases where there is no scientific
certainty about the impact that an activity could have.”46
40 Pueblos Kaliña y Lokono v. Surinam (n. 36), para. 172.

41 Daniel Cerqueira, “El derecho a un medio ambiente sano en el marco normativo y
jurisprudencial del Sistema Interamericano de Derechos Humanos” (DPLF Fundación para el
Debido Proceso, 2020), <http://www.dplf.org/sites/default/files/el_derecho_a_un_medio_ambien
te_sano.pdf> (accessed November 12, 2022), 22.
45 Ibid., para. 174; para. 92.
3. The duty to cooperate to protect the environment, in good faith,47 in-

cluding the obligations to notify, to consult and negotiate, and to share
information.
4. Procedural duties, including the obligation to respect, protect, and fulfill
the rights of access to information, public participation, and access to jus-
tice as they relate to environmental matters.48
In the case of Lhaka Honhat v. Argentina, the Inter-American Court expanded

on its discussion of States’ obligations stemming from the right to a healthy envi-
ronment. The IACtHR emphasized that the obligations to respect and guarantee,
contained in ACHR Article 1.1, apply to this right. As such, States must prevent
third parties from violating the right to a healthy environment and to treat a vi-
olation of the right, should one occur, as illegal. The Inter-American Court also
highlighted that the rights of vulnerable groups are disproportionally harmed
by environmental damage.49 Accordingly, States have an added obligation to ad-
dress those vulnerabilities.
In February 2020, the IACHR granted precautionary measures in favor of
inhabitants of the areas near the Santiago River, in Mexico, whose rights to life,
health, and personal integrity were threatened by contamination caused by in-
dustrial activity.50 In its decision, the Inter-American Commission took into
account States’ obligations to “regulate and control activities under their juris-
diction that may cause significant damage to the environment” and to “mitigate
significant environmental damage.”
2.2. The Right to a Healthy Environment and

Indigenous Communities
The right to a healthy environment is crucial for Indigenous communities, who

have a strong connection with their lands and who are particularly vulnerable
to environmental degradation.51 The Inter-American Court has decided that
“members of tribal and indigenous communities have the right to own the nat-
ural resources they have traditionally used within their territory for the same
reasons that they have a right to own the land they have traditionally used and

49 Lhaka Honhat (nuestra tierra) v. Argentina (n. 30), para. 209.
50 Inhabitants of the areas near the Santiago River regarding Mexico [2020], IACHR, Precautionary
Measure No. 708-19.

51 IACHR, “Pueblos indígenas y tribales de la Panazmazonía” (IACHR Website, September 29,
2019), <https://www.oas.org/es/cidh/informes/pdfs/panamazonia2019.pdf> (accessed November

12, 2021); Advisory Opinion 23/17 (n. 15), para. 121.
occupied for centuries. Without them, the very physical and cultural survival
of such peoples is at stake.”52 Accordingly, the IACtHR and the IACHR have
recognized the importance of guaranteeing the right to a healthy environment
for securing Indigenous communities’ human rights, as well as the need to con-
duct environmental impacts assessments before undertaking projects that would
affect their lands.
When analyzing the link between a healthy environment and the protection of
Indigenous communities’ human rights, the IACtHR has taken into consideration
the fact that the right to collective property entails protection of the lands and access
to the natural resources located within the territories since these are necessary for
Indigenous peoples’ survival as well as the development of their traditional way of
life.53 Similarly, the IACHR recognized in its thematic report on “Indigenous and
Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources” the im-
portance of protecting the natural resources on Indigenous communities’ lands in
order to secure their fundamental rights, including the rights to life, dignity, health,
and property. The IACHR stated that “the State must undertake preventive and pos-
itive action aimed at guaranteeing an environment that does not compromise indig-
enous persons’ capacity to exercise their most basic human rights.”54
The Inter-American Commission has also determined that effective protec-
tion of the natural resources in Indigenous peoples’ territories requires access
to justice, access to information, and participation in decision-making. In con-
nection with this last obligation, the Inter-American Court has decided that the
right to property, contained in ACHR Article 21, creates an obligation to conduct
an environmental impact assessment55 so that Indigenous communities who
might be affected by a project can evaluate the risks and decide whether to give
their consent.56
The IACHR has also issued various recommendations in cases relating to
Indigenous communities and the environment. In the case of the Yanomami
Community v. Brazil,57 which concerned the construction of a motorway within
Yanomami territories that had resulted in diseases and even deaths of commu-
nity members, the Inter-American Commission concluded that the State had
violated the victims’ right to the preservation of health and well-being, among
others, and recommended the delimitation of Yanomami territories. In the case
of Mercedes Julia Huenteao Beroiza v. Chile,58 concerning the construction of a
52 Pueblo Saramaka v. Surinam (n. 36), para. 121.

53 Yakye Axa Indigenous Community v. Paraguay (n. 29), para. 137.
54 Kawas Fernández v. Honduras (n. 23), para. 194.
55 Pueblo Saramaka v. Surinam (n. 36), para. 129.
56 Pueblo Saramaka v. Surinam (n. 36), para. 40; Kichwa de Sarayaku v. Ecuador (n. 36), para. 205.
57 Yanomami v. Brasil [1985], IACHR, Case No. 7615.
58 Mercedes Julia Huenteao Beroiza v. Chile [2004], IACHR, Friendly Settlement Petition No.
4617/02.
hydroelectric plant in the Mapuche-Pehuenche’s territories against their will, the

parties reached a friendly settlement agreement in which the State committed
to implementing mechanisms that would guarantee the development and envi-
ronmental conservation of the territories. Additionally, in the case of the Maya
Indigenous Communities of the Toledo District v. Belize, the IACHR found that
the State violated the victims’ right to property by failing to recognize and pro-
tect their territories, as well as by granting logging and oil concessions on their
lands to third parties. The Inter-American Commission recommended that the
State provide reparations for the environmental damage that resulted from the
concessions. Finally, in the case of the Indigenous Communities of the Xingú River
Basin v. Brazil, the IACHR granted a precautionary measure in which it ordered
the State to halt the construction of the Belo Monte hydroelectric plant until
Indigenous communities had been consulted.
2.3. The Right to Access Information Concerning and

to Participate in Environmental Matters
The right to a healthy environment is closely related to the right of access to in-
formation concerning environmental matters, which in turn enables public par-
ticipation in these issues.
As previously mentioned, in the case of Claude Reyes v. Chile, the Inter-
American Court found that the State had violated its international obligations
when it did not guarantee the right of access to information concerning environ-
mental matters.59 The IACtHR expanded on this right on its Advisory Opinion
OC-23/17, in which it stated that “access to information on activities and projects
that could have an impact on the environment is a matter of evident public in-
terest.”60 The Court also emphasized the direct relation between the right of ac-
cess to information and the right to public participation in matters of sustainable
development and environmental protection.61
Finally, Articles 5 and 6 of the Escazú Agreement protect the right of access to
information concerning environmental matters, and Article 7 protects the right
to public participation in the decision-making processes related to the environ-
ment. The ratification of the Escazú Agreement by States is therefore pivotal to
the consolidation of these rights in the Americas.
59 Claude Reyes et al. v. Chile [2006], IACtHR, Ser. C No. 151, para. 174.
3. Transformative Impact: Recognition of Environmental

Human Rights at the Domestic Level
Twenty Latin American constitutions recognize the right to a healthy environ-

ment. The incorporation of the right to a healthy environment into a constitu-
tion significantly affects a country’s legal system.62 According to David Boyd,
the impacts of this incorporation are twofold: stronger environmental legisla-
tion and judicial decisions defending the right from violations.63 This section
focuses on domestic judicial decisions, especially on constitutional matters, that
acknowledge the relationship between human rights and the environment.
Among the twenty Latin American countries whose constitutions recognize
environmental rights, eighteen have constitutional provisions that directly pro-
tect the right to a healthy environment of the population as a whole. These coun-
tries are: Argentina (art. 41), Bolivia (art. 33), Brazil (art. 225), Chile (art. 19.8),
Colombia (art. 79), Costa Rica (art. 50), Cuba (art. 75), Ecuador (arts. 14, 66),
Guyana (art. 149J(1)), Honduras (art. 145), Jamaica (art. 13), Mexico (art. 4.5),
Nicaragua (art. 60), Panama (art. 118), Paraguay (art. 7), Peru (art. 2.22), the
Dominican Republic (art. 67), and Venezuela (art. 127). The other two countries,
Belize and El Salvador, refer to environmental protection only in its preamble
and provide environmental protection only to a particular, vulnerable group
(girls and boys), respectively.
Antigua and Barbuda, Guyana, Saint Vincent and the Grenadines, Saint Kitts
and Nevis, Saint Lucia, and Uruguay do not recognize the right to a healthy en-
vironment in their constitutions. Nevertheless, these countries have ratified the
Escazú Agreement and proclaimed the right to access information and participate
in public affairs as a constitutional right. Article 4(1) of the Escazú Agreement
establishes that “[e]‌ach Party shall guarantee the right of every person to live in a
healthy environment and any other universally-recognized human right related
to the present Agreement.” Therefore, these countries have indirectly incorpo-
rated into their constitutions the right to a healthy environment.
Eight countries do not have the right to a healthy environment in their
constitutions, directly or indirectly. These countries are the Bahamas, Barbados,
Dominica, Granada, Guatemala, Haiti, Suriname, and Trinidad and Tobago.
62 The case of Future Generations v. Ministry of the Environment and others [2018] Colombian
Supreme Court 11001-22-03-000-2018-00319-01 demonstrates the importance of having the right

to a healthy environment in constitutions. The Supreme Court of Justice of Colombia orders the ex-
ecutive branch to reverse the negative effects of deforestation in the Amazon by implementing a plan
to combat climate change. The Court takes into consideration that the Colombian constitution is
an “Ecological Constitution” that declares the right to a healthy environment to be a fundamental
right. The Court also finds that various provisions within the constitution form a “national ecological
public order.”
63 Boyd (n. 1).
In addition to the constitutional recognition of the right to a healthy envi-

ronment, many States have integrated into their domestic legal systems inter-
American treaties, jurisprudence, and standards concerning environmental
human rights, as required by conventionality control.64 These States implement
public policies in line with inter-American norms related to the environment
and apply these norms in judicial decisions.
For example, in 2016, the Constitutional Court of Colombia adjudicated a case
concerning illegal mining that had contaminated the Atrato River, where various
Indigenous and Afro-descendant communities reside.65 When recognizing the
right to water, the Colombian court referred to several IACtHR cases, such as
the case of the Yakye Axa Indigenous Community v. Paraguay, in which the Inter-
American Court had recognized the right of Indigenous communities to use the
natural resources of their ancestral lands. The Constitutional Court of Colombia
also cited the IACHR’s report on the “Human Rights Situation in Ecuador,”
which described human rights violations caused by oil extraction.
In Mexico, the National Human Rights Commission issued Recommendation
No. 32 on violations of the human rights to health, an adequate standard of life,
a healthy environment, and public information. The recommendation describes
the negative impact of urban air pollution, and highlights State obligations and
rights violations associated with the phenomenon.66 The recommendation
derives State obligations to protect the right to a healthy environment from inter-
national human rights law, including the IACtHR’s Advisory Opinion OC-23/17
and the IACHR’s definition of what constitutes a healthy environment.
Similarly, in two landmark cases, domestic Courts relied on the work of the
IAHRS when drawing connections between Indigenous communities and
the right to a healthy environment. In 2007, the Supreme Court of Belize de-
termined that the Maya community’s customary rights, recognized in the
country’s constitution, obligated the government to give the community title
to their territories. In this case, the Belizean court expressly references the
standards elaborated by the Inter-American Court in the case of the Mayagna
(Sumo) Awas Tingni Community v. Nicaragua regarding the close connection
Indigenous communities have with their lands.67 In Mayagna (Sumo) Awas
Tingni Community, the IACtHR also found that the State had a duty to obtain

65 Centro de Estudios para la Justicia Social “Tierra Digna” v. Presidencia de la República et al.
[2016] Colombian Constitutional Court Decision T-622-16.
66 For a detailed analysis of this Recommendation, see Jorge Ulises Carmona, “Derecho humano
a la salud, a un nivel de vida adecuado, a un medio ambiente sano, y a la información pública.

Recomendación No. 32 de la CNDH de México,” in Henry Jiménez Guanipa and Marisol Luna
Leal (eds.), Crisis climática, transición energética y derechos humanos. Tomo II. Protección del medio
ambiente, derechos humanos y transición energética (Ediciones Ántropos 2020), 399–424.
67 Aurelio Cal et al. v. The attorney general of Belize et al [2007] Supreme Court of Belice Claim No.
171/2007, 59-60.
informed consent from indigenous communities before authorizing leases or ex-

tractive licenses on their lands. In 2015, the Caribbean Court of Justice (CCJ)
also analyzed the human rights situation of Indigenous communities in Belize
and found that Q’eqchi’, Mopan Maya, and other Indigenous communities’ right
to property obligates the government to delimit and register their traditional
lands.68 In its decision, the CCJ refers to the IACHR’s standards regarding the
right of access to information and participation in decision-making about in-
dustrial and mining projects. The CCJ also mentioned the IACtHR case Claude
Reyes v. Chile when recognizing the right of access to information concerning
environmental matters.
In another, more recent case, the Supreme Federal Court of Brazil ordered
protective measures for Indigenous communities in the context of the COVID-
19 pandemic, including a measure to prevent third parties from entering their
territories and illegally extracting natural resources. The Brazilian court’s de-
cision emphasizes the relation between the right to a healthy environment and
the rights of Indigenous communities, as well as the State obligation to imple-
ment the necessary measures to protect Indigenous territories. In reaching its
conclusions, the Brazilian court relied on inter-American standards, especially
the IACtHR case Lhaka Honhat and the IACHR Resolution 1/2020, in which the
Inter-American Commission recommended, among other things, that States
“[t]‌ake utmost measures to protect the human rights of indigenous peoples in
the context of the COVID-19 pandemic.”69
The right to participate in decision-making concerning environmental matters
has also been recognized at the domestic level, as in the case of Rio Blanco in
Ecuador.70 Mining had begun without the prior, free, and informed consultation
of the local population. In May 2018, various nongovernmental organizations
(NGOs) representing rural and Indigenous communities requested an injunc-
tion that would suspend the mining. The lower court granted the injunction,
preventing the mining in Rio Blanco from continuing until local communities
had been duly consulted, in accordance with international standards. On appeal,
a higher court determined that the communities’ right to prior consultation had
been violated and affirmed the lower court’s decision.
68 The Maya Leaders Alliance et al. v. The attorney general of Belize [2015] The Caribbean Court of
Justice BZCV2014/002.
69 IACHR, “Resolution No. 1/ 2020. Pandemic and Human Rights in the Americas” (2020),
<https://www.oas.org/en/iachr/decisions/pdf/Resolution-1-20-en.pdf> (accessed November 12,
2022), 15.
70 For more cases that demonstrate the interamericanización of the right to participate in decision-
making concerning environmental matters, see Mariela Morales Antoniazzi and María Barraco,
“Aproximación al ius commune: Interamericanización en los derechos de participación y defensa
del medio ambiente,” in Henry Jiménez Guanipa and Marisol Luna Leal (eds.), Crisis climática,
transición energética y derechos humanos. Tomo II. Protección del medio ambiente, derechos humanos
y transición energética (Ediciones Ántropos 2020), 31–41.
Domestic judicial decisions have also recognized the right of access to infor-
mation concerning environmental matters. In February 2015, the Constitutional
Court of Colombia adjudicated a case concerning a chemical spill in Cartagena
that contaminated water sources.71 When analyzing standards on reparations
for environmental damage, the Colombian court referenced the IACtHR case
Claude Reyes v. Chile, which recognized the right of to access information con-
cerning the environment. The Colombian court also decided that the affected
community has the right to participate in the design of measures to restore the
environment to its previous conditions.
Most recently, an Argentine court found that the energy company YPF had
an obligation to provide information to an NGO regarding activity taking place
in the Vaca Muerta oil deposit. In so doing, the court referenced the right of ac-
cess to information concerning environmental matters contained in the Escazú
Agreement. This was the first time that the Escazú Agreement had served as the
basis for a judicial decision.72
These cases illustrate domestic courts’ reception of the standards on the
right to a healthy environment developed by the IACtHR and the IACHR and
consolidated in the Escazú Agreement. Additionally, considering that the inter-
action between and the confluence of domestic and international law is charac-
teristic of the ius constitutionale commune in Latin America,73 these cases signal
the emergence of an ius commune on environmental rights, with a particular
focus on the right to a healthy environment and the rights of participation in and
access to information concerning environmental matters.
In the past decades, global efforts to protect the environment have grown and
evolved. These efforts include strengthening the environmental rule of law, as
has been seen in Latin America. This international environmental movement
has been accompanied and reinforced by an emerging ius commune on envi-
ronmental rights. The development of this environmental ius commune results
from standard-setting by the Inter-American Court and the Inter-American
71 Fundación para la Defensa del Interés Público - Fundepúblico-y Carmenza Morales Brid
v. Sala Civil y de Familia del Tribunal Superior del Distrito Judicial de Cartagena [2015] Colombian
Constitutional Court Decision T-080/15.
72 Henry Jiménez Guanipa, “El acuerdo de Escazú y el derecho de acceso a la información dan a
luz una nueva jurisprudencia” [2019], 44 Revista Derecho del Estado.

73 Armin von Bogdandy et al., “Ius Constitutionale Commune En América Latina: A Regional
Approach to Transformative Constitutionalism,” MPIL Research Series, October 28, 2016, <https://
papers.ssrn.com/sol3/papers.cfm?abstract_id=2859583> (accessed November 13, 2022), 3.
Commission, combined with the incorporation of these norms in domestic legal

systems.
The IACtHR and IACHR’s standards have clarified State obligations stem-
ming from the right to a healthy environment. The Inter-American Court’s
Advisory Opinion OC-23/17 and its judgment in the Lhaka Honhat case explain
in detail the content of the right to a healthy environment and the corresponding
obligations of the State. This chapter has focused on the protection of the right to
a healthy environment, the enhanced obligation to guarantee the environmental
rights of Indigenous communities, and the rights of access to information and to
participate in decision-making concerning environmental matters.
Inter-American standards on environmental rights and obligations have been
invoked by domestic tribunals, signaling the emergence of a ius commune on
the environment in Latin America. This environmental ius commune has been
strengthened by the entry into force on April 22, 2021, of the Escazú Agreement,
which could catalyze additional judicial decisions that reinforce the environ-
mental rule of law in the region.
II.3
Indigenous Rights in the
Inter-American System
The Application of Precautionary Measures from a
Culturally Appropriate Perspective
By Antonia Urrejola and Elsy Curihuinca Neira
1. Introduction
The Inter- American Human Rights System (IAHRS) has increasingly

strengthened the recognition of the individual and collective rights of Indigenous
peoples. Both the Inter-American Court of Human Rights (IACtHR) and the
Inter-American Commission on Human Rights (IACHR) have developed im-
portant standards that are applied in a cross-cutting manner throughout all their
mechanisms.1 One such mechanism is the system of precautionary measures
(PMs), whereby the IACHR has the power to request States take urgent action
to protect the human rights of people living in the thirty-five countries under
their jurisdiction.2 This power is established in Article 18(b) of the Statute of the
Commission and Article 41(b) of the American Convention on Human Rights
(ACHR).3
Since the 1980s, the Commission has systematically spoken about the rights of
Indigenous peoples through the case system, in special reports, in admissibility
reports, in country reports, in reports on friendly settlements, in the mechanism
1 In this regard, see IACHR, “Indigenous and Tribal Peoples’ Rights over their Ancestral Lands
and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System,”
December 30, 2009, OAS/Ser.L/V/II, English translation is available at http://cidh.org/countryrep/
Indigenous-Lands09/TOC.htm; IACHR, “Indigenous Peoples, Afro-Descendant Communities
and Natural Resources: Protection of Human Rights in the Context of Extraction, Exploitation and
Development Activities,” December 31, 2015, OEA/Ser.L/V/II. Doc. 47/15, www-cdn.law.stanford.
edu/wp-content/uploads/2017/09/ExtractiveIndustries2016.pdf (accessed January 2, 2022).
2 This Mechanism is part of the IACHR’s function of supervising compliance with human rights
obligations established in Article 106 of the Charter of the Organization of American States (OAS).
3 This power rests on the general obligation that States have to respect and guarantee human rights
(Art. 1 ACHR), to adopt the necessary measures to ensure those rights (Art. 2), and to fulfill in good
faith the obligations contracted under the Convention and the OAS Charter.
Antonia Urrejola and Elsy Curihuinca Neira, Indigenous Rights in the Inter-American System In: The Impact of the
Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor,
and Mariela Morales Antoniazzi, Oxford University Press. © Antonia Urrejola and Elsy Curihuinca Neira 2024.
DOI: 10.1093/oso/9780197744161.003.0014
Indigenous Rights in the Inter-American System 255
for precautionary measures (MPMs), as well as through requests for orders and
provisional measures filed with the IACtHR. The Commission has insisted that
the right of Indigenous peoples to their lands and resources needs to be specially
protected because the full exercise of that right not only implies the protection
of an economic unit but the protection of the human rights of a community
whose economic, social, and cultural development is based on its relationship to
the land. When analyzing petitions dealing with cases in which the victims are
Indigenous peoples, the Inter-American System has stressed that human rights
violations affecting these groups also have implications for their collective rights
as communities, societies, and cultures with their own values and ways of living.
This is applicable also when dealing with PMs.
The recognition of the right of Indigenous peoples to a cultural identity and
to have their sociocultural context taken into account during the different pro-
cedural stages to grant a PM in the IACHR—from studying the application to
its granting and subsequent follow-ups— can generate more effective joint
strategies among Indigenous communities and States, and may go beyond the
conventional ways in which the latter have been operating these mechanisms
for Indigenous people. We believe that an intercultural perspective and consid-
eration of the collective rights of Indigenous peoples will improve the impact of
PMs on protecting Indigenous communities’ rights to health, life, and personal
integrity.
In that context, regarding Indigenous people who are beneficiaries of PMs, it is
worth asking about how the standards developed by the Inter-American System
have been interpreted and applied. Is there an intercultural approach when
analyzing a PM request? And once the PM has been granted, what challenges
exist for its effective implementation? Seeking to answer these questions, the
objective of this chapter is to provide an overview of the main inter-American
standards regarding Indigenous peoples and how they have been applied
through MPMs. Our methodological approach is qualitative, the type of study
is descriptive, and our analysis will be based primarily on resolutions issued by
the IAHRC.
The first section of the chapter provides an overview of the IAHRS, its con-
stituent bodies, and its mandate. In addition, we discuss three inter-American
standards developed on the subject of Indigenous peoples: (1) territorial rights,
(2) cultural identity, and (3) participatory rights, all of which must be respected
and guaranteed by States when preparing and implementing their laws, policies,
and programs. The second section focuses on the MPMs and provides a descrip-
tion of how the IACHR, through the analysis of PM requests, has interpreted
and applied the referred standards. The PMs we analyze illustrate the main
Indigenous issues addressed by the Commission between 2013 and 2018, with
the understanding that there are other issues and cases still to be addressed.
256 Antonia Urrejola and Elsy Curihuinca Neira
Finally, the third section of the chapter mentions some progress and challenges
encountered regarding the implementation of PMs by States and the monitoring
carried out by the IACHR in this regard.
2. Inter-American Human Rights System and General

Standards Regarding Indigenous Peoples
The IAHRS is a regional system for the promotion and protection of human
rights. It was created by the member States of the Organization of American
States (OAS). It consists of two bodies: the IACtHR, whose objective is the ju-
risdictional application and interpretation of the ACHR, and the IACHR, whose
main function is to promote the observance and defense of human rights and to
serve as an advisory body of the OAS on this matter.
Moreover, the System is based on three international instruments: the
Charter of the OAS, the American Declaration of the Rights and Duties of Man,
and the ACHR. The American Convention establishes, among other matters,
the obligation of States to respect the rights and freedoms recognized therein,
as well as the duty to adopt domestic law provisions that are necessary to en-
sure the enjoyment of such rights.4 In this sense, States are obligated to adapt
national procedures and substantive norms to the rights established in the
Inter-American System, as well as to design norms, mechanisms, guidelines,
and institutions for the full execution of their decisions.5 The Inter-American
Court and the Commission have the power to decide whether the conduct of a
State is in violation of the Convention and other inter-American instruments
and, consequently, once the violation has been established, to determine the
corresponding remedies.6 In accordance with the provisions of the American
Convention, the decisions of these supervisory bodies are binding on
States: they must comply with the judgments of the Court and comply in good
faith with the decisions of the IACHR.7 In fulfilling their mandate, both bodies
of the Inter-American System have developed extensive international standards
applicable to Indigenous peoples. Among these standards, it is possible to men-
tion the following.
4 Art. 1 of the American Convention on Human Rights (“Pact of San Jose, Costa Rica”), adopted
November 22, 1969, and entered into force on July 18, 1978.
5 Center for Justice and International Law (CEJIL), “Implementation of the decisions of
the Inter-American Human Rights System,” 2009, https://cejil.org/wp-content/uploads/pdfs/

implementacion_aportes_para_los_procesos_legislativos_2.pdf (accessed January 2, 2022).
6 Arts. 63 and 49 American Convention on Human Rights.
7 Ibid., art. 14.
2.1. The Right to a Cultural Identity
In accordance with the provisions of Article 1 of the American Convention,

States must guarantee on equal terms the full exercise and enjoyment of the rights
of persons who are subject to their jurisdiction. In the case of Indigenous peo-
ples, this norm has special significance since Indigenous peoples represent na-
tive and diverse societies with their own identity.8 As such, the right to a cultural
identity is a fundamental and collective right of Indigenous communities and
must be respected in a multicultural, pluralistic, and democratic society.9 Under
this right, States have a duty to recognize the aspirations of Indigenous peoples
to “exercise control over their own institutions, ways of life and economic devel-
opment and to maintain and develop their identities, languages and religions,
within the framework of the States in which they live.”10 This implies that States
must adopt the necessary preventive and corrective measures for the full and ef-
fective protection of this right.11 In that sense, the Inter-American Court has es-
tablished that States must grant “effective protection that takes into account their
own particularities, their economic and social characteristics, as well as their sit-
uation of special vulnerability, their customary law, values, uses and customs.”12
2.2. The Right to the Lands, Territories, and Resources

of Indigenous Peoples
The jurisprudence of the IAHRS has repeatedly recognized the proprietary

rights of Indigenous peoples over their territories and the duty of protection that
emanates from Article 21 of the American Convention.13 Both the Commission
and the Court have indicated that Indigenous territorial property is a form of
property not based on official State recognition but on the traditional use and
possession of the land and its resources.14 In virtue of this distinction, it has been
affirmed that “the traditional possession of the indigenous people on their lands
8 Ibid., Preamble.
9 Kichwa Indigenous People of Sarayaku v. Ecuador [2012], IACtHR, para. 217.
10 International Labour Organization (ILO), Indigenous and Tribal Peoples Convention No. 169,
1989, adopted June 27, 1989 and entered into force on September 5, 1991, Preamble.
11 Art. 12 American Declaration on the Rights of Indigenous Peoples.
12 Case of the Yakye Axa indigenous community v. Paraguay [2005], IACtHR, Ser. C No. 125, paras.
51, 63.
13 “Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources”
(n. 1), para. 55; additionally, see Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua
[2001], IACtHR, Ser. C No. 79, para. 148.
14 Ibid., para. 140 (a); Case of the Saramaka People v. Suriname [2007], IACtHR, Ser. C No. 172,
para. 96.
has effects equivalent to the title of full domain granted by the State.”15 Thus, the
IAHRS bodies have provided specific content to the right to Indigenous prop-
erty: on repeated occasions they have emphasized that the territory and natural
resources traditionally used by these groups are necessary for their physical and
cultural survival.16 The Court has expressly recognized the right of Indigenous
peoples to live freely in their own territories, adding:
[T]‌he culture of the members of the indigenous communities corresponds to a

particular way of life of being, seeing and acting in the world, constituted from
their close relationship with their traditional territories and the resources that
are there, not only because they are their main means of subsistence, but also
because they constitute an integral element of their worldview, religiosity and,
therefore, of their cultural identity.17
Recently, the Court reiterated its jurisprudence regarding the collective own-
ership of the lands and territories of Indigenous peoples by indicating that: (1)
the traditional possession that Indigenous peoples have over their lands has
effects equivalent to the title of full domain granted by the State; (2) traditional
possession gives Indigenous peoples the right to demand official recognition of
property and registration; (3) the members of Indigenous communities who,
for reasons beyond their control, have left or lost possession of their traditional
lands maintain the right of ownership over them, even in the absence of legal
title, except when the lands have been legitimately transferred to third parties in
good faith; (4) the State must define, demarcate, and grant collective ownership
titles over lands claimed by members of Indigenous communities; (5) members
of Indigenous communities who have involuntarily lost possession of their
lands, and have been legitimately transferred to third parties in good faith, have
the right to recover them or obtain other lands of equal size and quality; (6) the
State must guarantee the effective ownership of Indigenous peoples to their land
and refrain from performing acts that may lead to agents of the State itself, or
third parties acting with their acquiescence or tolerance, to affect the existence,
value, use, or enjoyment of the respective territory; (7) the State must guarantee
the right of Indigenous peoples to effectively control and own their own terri-
tory without any external interference from third parties; and (8) the State must
15 Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (n. 13), para. 151; Case of
the Sawhoyamaxa Indigenous Community v. Paraguay [2006], IACtHR, Ser. C No. 146, para. 128;
and Case of the Xákmok Kásek Indigenous Community v. Paraguay [2010], IACtHR, Ser. C No. 214,
para. 109.
16 Case of the Yakye Axa Indigenous Community v. Paraguay (n. 12), paras. 124, 135, 137; Case of
the Sawhoyamaxa Indigenous Community v. Paraguay (n. 15), paras. 118, 121.
17 Case of the Yakye Axa Indigenous Community v. Paraguay (n. 12), para. 135.
guarantee the right of Indigenous peoples to control and use their territory and
natural resources.18
2.3. Participatory Rights of Indigenous Peoples
The IAHRS has a vast jurisprudence on the participatory rights of Indigenous

peoples. Both the Court and the Commission have recognized that these groups
hold the right to consultation as well as free, informed, prior, culturally appro-
priate, and in-good-faith consent.19 Likewise, it has been specified that these
processes must be carried out beforehand, that is, before the execution of actions
that could significantly affect the interests of Indigenous peoples, such as the
exploration, exploitation, or extraction of Indigenous peoples lands and re-
sources.20 In this regard, the Commission has warned that one of the complaints
most frequently reported by Indigenous peoples relates to consultation
processes occurring after the concession for a given project had been granted.21
This matter is particularly relevant for the IACHR because Indigenous peoples
must have prior and sufficient awareness of the possible risks involved in such
projects, including health and environmental risks, in order to voluntarily accept
the proposed development or investment plan in an informed way.22 Specifically
regarding the right to consent, the IACHR has expressly stated that the objective
of any consultation process must be to reach an agreement or obtain consent.
Accordingly:
[I]‌ndigenous and tribal peoples must be able to significantly influence the

process and the decisions made in it, which includes the accommodation
of their perspectives and concerns, for example, through provable and
verifiable changes regarding the project objectives, parameters and design,
as well as any concerns they may have about the acceptance of the project
itself.23
18 Case of the Xucuru Indigenous People and their members v. Brazil [2018], IACtHR, Ser. C No.
346, para. 117.

19 In this regard, the IACHR has highlighted the need for the consultation processes to have an
advisory mechanism or procedure developed with the participation, collaboration, and coordination
of the Indigenous peoples themselves; see Indigenous Peoples, Afro-Descendant Communities and
Natural Resources (n. 1), para. 195. Additionally, see Case of the Saramaka People v. Suriname (n. 14),
para. 133; and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (n. 9), para. 186.
20 Case of the Kaliña and Lokono Peoples v. Suriname [2015], IACtHR, Ser. C No. 309, para. 207.
21 Indigenous Peoples, Afro-Descendant Communities and Natural Resources (n. 1), para. 196.
22 Ibid., para. 179; and IACtHR, Case of the Saramaka People v. Suriname (n. 14), para. 134.
23 Indigenous Peoples, Afro-Descendant Communities and Natural Resources (n. 1), para. 179; and
IACtHR, Case of the Saramaka People v. Suriname (n. 14), para. 134.
3. MPMs and Cultural Pertinence
Much has been written about the inter- American jurisprudence on the
rights of Indigenous peoples through the judgments of the IACtHR and the
recommendations of the IACHR.24 However, it seems to us that analyzing
MPMs and the effects that they have had on the rights of the Indigenous peoples
provides a new perspective.
MPMs were established in Article 25 of the Rules of Procedure of the
IACHR,25 which provides that in grave and urgent situations the Commission
may, at its own initiative or at the request of a party, “request that a State adopt
precautionary measures. Such measures, whether related to a petition or not,
shall concern serious and urgent situations presenting a risk of irreparable harm
to persons or to the subject matter of a pending petition or case before the organs
of the inter-American system.”26 These measures may be of a collective nature in
order to prevent irreparable harm to persons due to their link with an organiza-
tion, group, or community of determined or determinable persons.27
It should be added that the analysis carried out by the IACHR relates only
to the requirements of severity, urgency, and the risk of irreparable harm and
therefore can be resolved without entering into substantive determinations that
are typical when analyzing a case. In that sense, the current Rules of Procedure
provide that the granting of the PM will not constitute a prejudgment about the
violation of the rights protected in the ACHR and other applicable instruments,
and that the decisions on granting, extending, modifying, and lifting them must
be issued by informed resolutions.28
24 See, e.g., Gonzalo Aguilar Cavallo, “Emergencia de un derecho constitucional común en ma-
teria de pueblos indígenas,” in Armin von Bogdandy et al. (eds.), La justicia constitucional y su
internacionalización: hacia un Ius constitutionale commune en América Latina? T. II (UNAM,
Instituto de Investigaciones Jurídicas, MPIL, Instituto Iberoamericano de Derecho Constitucional,
2010), 3–84.
25 This Mechanism has remained in the Commission’s Rules of Procedure for more than three
decades, and the last regulatory reform came into force on August 1, 2013.
26 IACHR, “Rules of Procedure of the Inter-American Commission on Human Rights” (approved
by the Commission at its 137th regular session, held from October 28, 2009, to November 13, 2009;
and modified on September 2, 2011, and at its 147th regular session, held from March 8 to 22, 2013,
for its entry into force on August 1, 2013), Article 25.2. In accordance with the provisions of Article
25.2, the Commission, when assessing the origin of a PM, evaluates compliance with the following
requirements: “a. the ‘seriousness of the situation’ means the serious impact that an action or omis-
sion may have on a protected right or on the eventual effect of a pending decision in a case or petition
before the organs of the Inter-American System; b. The ‘urgency of the situation’ is determined by the
information that indicates that the risk or threat is imminent and can be materialized, thus requiring
preventive or protective action; and c. The ‘irreparable damage’ means the affectation on rights that,
by their very nature, are not susceptible to repair, restoration or adequate compensation.”
27 Ibid., art. 25.3.
28 Ibid, art. 25.7.
PMs fulfill two functions related to the protection of fundamental rights

enshrined in the norms of the IAHRS: a “precautionary” function, in the sense
of preserving a legal situation under consideration by the IACHR, and a “guard-
ianship” function because they seek to avoid irreparable harm and preserve the
exercise of human rights. These considerations have led to the granting of PMs in
a wide range of situations. Section 3.1 provides some examples of cases in which
the beneficiaries have been Indigenous peoples and where it is possible to note
the inclusion of inter-American standards regarding territorial rights, cultural
identities, and participation.
3.1. Precautionary Measure No. 113/16: “Tres Islas” Native

Community of Madre de Dios Regarding Peru29
In Precautionary Measure No. 113/16, the request indicated that the proposed
beneficiaries were in a dangerous situation due to a lack of effective, compre-
hensive, and continuous medical care in relation to the presence of unsafe levels
of mercury in their ecosystem as a result of mining activities in their territory.
Based on the case background, the IACHR requested that the State, in consulta-
tion with the beneficiaries or their representatives, adopt the necessary measures
to preserve the life and personal integrity of the members of the community, in-
cluding carrying out necessary medical diagnoses to determine contamination
levels—mercury or other substances—and ensuring that community members
have access to nutritionally and culturally adequate food and within levels ac-
ceptable to international organizations like the World Health Organization and
the Pan American Health Organization.
The Commission noted that the applicants had submitted information on var-
ious studies conducted over a number of years that indicated several community
members had mercury in their bodies, some exceeding levels considered accept-
able. Although these reports referred only to some members of the community,
the IACHR considered that “the situation of alleged health risk would extend to
the rest of the population, given the relationship that it would have, among other
aspects, with the intake of fish allegedly contaminated by mercury, which would
constitute one of the main food sources of the community.”30
This decision is an important advancement, as it is one of the first PMs to
recognize an Indigenous community as a collective beneficiary. In its deci-
sion, the IACHR indicated that the proposed beneficiaries, despite not being
29 IACHR, Resolution 38/17, Precautionary Measure 113/16, “Tres Islas” Native Community of
Madre de Dios, Peru.

30 Ibid., para. 34.
individualized, were members of the “Tres Islas” Native Community of Madre de

Dios, and therefore determinable under the terms of Article 25.6.(b) of the Rules
of Procedure of the IACHR.
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 Colombia31
The proposed beneficiaries of Precautionary Measure No. 395/18 indicated

that they were subjected to threats, harassment, and other acts of violence by
armed actors in their territory who sought to impose themselves on the native
authorities. Additionally, they reported the presence of antipersonnel mines
and explosive devices in the area, as well as the problem of Indigenous youth
being recruited into armed groups. In this case, the Commission requested the
State to adopt the necessary measures to safeguard the life and personal integ-
rity of identified Siona leaders so that the families of the Siona Gonzaya and Po
Piyuya Reserves could live safely in their territory. To this end, Precautionary
Measure No. 395/18 established measures aimed at enabling the members of the
Indigenous communities to move in a safe manner and allowing for the exer-
cise of their cultural and subsistence activities; removing the explosive material;
preventing and avoiding the recruitment of young people into armed groups;
and strengthening communications to deal with emergencies. The Commission
also requested that culturally appropriate measures be taken to protect the life
and integrity of the Siona leaders, so that they could fulfill their mandate ac-
cording to their own norms. Likewise, it indicated that the measures should be
adopted with the beneficiaries and/or their representatives in accordance with
their own forms of decision-making and systems of self-government.
It should be noted that in this instance the IACHR highly valued the spe-
cial relationship that Indigenous peoples had with their territory, indicating
that the lack of free access to various areas could impede their use, enjoyment,
and effective control of it, and exposing them to greater vulnerability and pre-
carious living conditions. Likewise, the IACHR noted that the alleged existence
of forced or voluntary recruitment into armed groups, in addition to putting
their rights to life and integrity at risk, could lead to the collective commu-
nity becoming disarticulated and thus deprived of an important demographic
31 IACHR, Resolution 53/ 18, Precautionary Measure 395/

18, Authorities and Members of
the Gonzaya (Buenavista) and Po Piyuya (Santa Cruz de Piñuña Blanco) Reserves of the Siona
Indigenous People (ZioBain), Colombia.
for the transmission of their values, norms, and culture.32 In addition, the
Commission noted that due to the presence of armed groups, members of the
Siona people would have limited mobility, restricting their ability to freely con-
duct cultural and subsistence activities. These restrictions specifically affected
the Siona authorities, who were unable to comply with the mandate granted by
their people. Furthermore, the Commission warned that the presence of armed
groups could undermine forms of Indigenous organization and leadership, af-
fecting the community’s life and future.
3.3. Precautionary Measure No. 860/17: Indigenous Families

of the Chaab’il Ch’och’ Community Regarding Guatemala33
According to the PM request, the Chaab’il Ch’och’ community was formed by

various families who fled the internal armed conflict from various places in Alta
Verapaz, where they had been persecuted and stripped of their lands by armed
groups. The complaint alleges that the community became vulnerable as a result
of being evicted from an area called Santa Isabel farm. The Commission warned
that the fact that families were dispersed—as a consequence of the evictions—
into various communities and villages beyond the area where they previously
lived could affect the social cohesion of the collective and impact its cultural
identity. In this context, the IACHR requested the State to adopt the necessary
and culturally appropriate measures to protect the rights to life and personal
integrity of the Indigenous families of the Chaab’il Ch’och’ community. These
measures were aimed at improving, inter alia, sanitary conditions and health
and food standards, especially for children, women, and the elderly. In addi-
tion, it indicated that these measures should be taken in consultation with the
beneficiaries and their representatives.
In addition to recognizing the beneficiaries as a collective subject—namely,
those evicted families—the resolution specified the effects the forced eviction
could generate on community members, including a breakdown of the social
fabric and the weakening and fragmentation of the community. Likewise, the
IACHR reiterated that the forced displacement of Indigenous peoples may place
them in a situation of special vulnerability, generating a risk of cultural and phys-
ical extinction.34
32 Ibid., paras. 20–34.

33 IACHR, Resolution 3/18, Precautionary Measure 860/17, Indigenous Families of the Chaab’il
Ch’och’ Community, Guatemala.
34 Ibid., para. 27.
3.4. Precautionary Measure No. 1014/17: U.V.O. Indigenous

Girl and Her Family Regarding Mexico35
According to the complaint, the proposed beneficiaries suffered threats, intimi-

dation, and accusations from within their own community after having reported
the alleged sexual violation of a girl from the community who, as a result of the
violation, suffered health problems. The Commission requested the State to
adopt the necessary measures to protect the life, personal integrity, and health of
the girl and her family. It also requested that culturally appropriate and gender-
based measures be adopted that would consider what was in the girl’s best in-
terest: to ensure that she had access to necessary medical and psychological care,
could study in a protective environment, and live safely in her community. The
Commission also stressed the importance of these measures being adopted in
consultation with the beneficiaries and their representatives, taking into consid-
eration the opinion of the girl and her best interests.
This case stands out for the intersectional analysis the IACHR made in its rea-
soning, that is, when establishing that the proposed beneficiary was a girl who,
due to her status as a growing person, deserved special, adapted, and reinforced
protection and that her best interests and personal development needed to be
considered and guaranteed.36 Furthermore, the Commission added that because
she was an Indigenous person, there were specific impacts in the context of the
culture of which she is part, referring to the ideas that women in her community
have of their own rights and what they consider “good living.”37
4. Progress and Challenges
States, in compliance with their international obligations, must provide effec-

tive protection to the beneficiaries of PMs in order to avoid the materializa-
tion of the presented risk. These responses are varied; in some cases they have
consisted of granting bodyguards and direct means of communication with
authorities, among others. However, despite the efforts made by States, in the
case of PMs granted to Indigenous peoples, there have been several implementa-
tion challenges.
Recently, during the 172nd Period of Sessions of the IACHR, the Commission
highlighted the importance of States being able to develop and strengthen their
35 IACHR, Resolution 27/18, Precautionary Measure 1014/17, U.V.O. Indigenous Girl and family,
Mexico.
36 Ibid., para. 25.
37 Ibid.
inter-institutional coordination at national, regional, and municipal levels to

implement PMs. Likewise, it emphasized that these coordination measures
should be adopted not only with due participation but alongside differential,
ethnic, and gender and age approaches, as well as within the framework of an
intercultural dialogue.38 During the same occasion, Indigenous representatives
from Colombia expressed their concerns that:
[T]‌he State [of Colombia] emphasizes the individual scope of the measures
and there is little consultation with the indigenous authorities for their
implementation and there is no clarity regarding the scope of the collective
contained in the precautionary measures [...] All stages of consultation
and implementation of precautionary measures must be carried out in the
territories, unless the beneficiaries themselves consider otherwise in response
to the uses, customs and proper governance of indigenous peoples as well as the
specificities of the territories and their geography.39
In addition, at the 174th Period of Sessions of the IACHR, various civil so-
ciety organizations denounced the increase in acts of violence in the Cauca
Department of Colombia. In particular, they referred to an increase in retali-
atory murders and threats perpetrated by organized armed groups against an-
cestral authorities and Indigenous guards40 who have made formal attempts to
claim their rights. They stressed that the Cauca Department is the second most
militarized area in Colombia and expressed concern about a military deploy-
ment announced by the State. They also highlighted the lack of compliance by
the Columbian State with various points established in the Peace Agreement, in-
cluding on matters of ethnicity and the guarantees proposed in the framework
on the voluntary substitution of illegal crops. The State, for its part, referred to
the deployment of a comprehensive strategy to address the situation in Cauca,
which would have a social and a security dimension.41
This context is the background for several PMs relating to Indigenous
people in Colombia, especially in the Cauca Department, and reveals some of
the problems in the implementation of effective, systematic, and culturally
appropriate measures to safeguard territorial rights and protect the life and
38 UN, “Implementation of Precautionary Measures with a Differential and Collective Ethnic
Approach in Colombia (Indigenous Peoples),” May 9, 2019.

39 IACHR, Hearing “Implementation of Precautionary Measures with a differential and collective
ethnic approach in Colombia,” Jamaica, 172 Period of Sessions, May 9, 2019.

40 The Indigenous Guard is conceived by many Indigenous people in the region as an ancestral
body; an instrument of unity, autonomy, and resistance, which acts both in the defense of the terri-
tory and the future of the Indigenous community. It is not a police structure but a humanitarian and
civil resistance mechanism.
41 IACHR, Hearing Violence and situation of indigenous peoples in the Department of Cauca in
Colombia, Ecuador, 174 Period of Sessions, November 12, 2019.

integrity of Indigenous peoples in Colombia. Meanwhile, the murder rate for

Indigenous leaders is on the rise and their precarious situation is intensifying
daily. In a public statement, the IACHR expressed its strong condemnation of
the attacks and murders committed against persons, leaders, and members of the
Indigenous Guard, as well as of the spike in violence in the Cauca Department.
According to publicly available information, on Sunday, November 3, 20193 two
armed men shot at the Indigenous leader Jesús Mestizo. That same night, Toribío
Alexander Vitonas Casamachin was killed by armed men. The Commission
also learned of the murder of Cristina Bautista, a leader of the Nasa community,
and José Gerardo Soto, James Wilfredo Soto, Eliodoro Uniscue, and Asdruval
Cayapu, who were ambushed by a group of unidentified subjects on October 29,
2019, in this same municipality. As a result of this latter attack, Matías Montaño
Noscué, José Norman Montano Noscué, Crescencio Peteche Mensa, Dora Rut
Mesa Peteche, Rogelio Tasquinas, and Alver Cayapú were also injured.42
One of the challenges related to the implementation of PMs by States is the
lack of State bodies to oversee compliance and implementation of PMs from an
intercultural approach. For the protection and integrity of Indigenous peoples, it is
essential to strengthen their autonomy and self-government, including Indigenous
security personnel, who have knowledge of their own territory, unlike, in most
cases, external State agents. PMs with a differentiated approach are essential to the
protection of Indigenous peoples as well as the implementation of inter-American
standards, which regard Indigenous peoples as subjects of collective rights.
However, and despite the efforts of the IACHR to monitor compliance with
these measures, challenges remain. Although the Commission has a variety of
tools to facilitate the follow-up of granted PMs—such as calls for work meetings
or hearings in the framework of the IACHR sessions, press releases, thematic
reports, or country reports—and there is a “Program to Strengthen Precautionary
Measures,”43 the current context demands greater monitoring efforts in each case.
In this regard, a useful precedent is the IACHR Special Mechanism to Follow Up
on the Ayotzinapa Matter regarding Precautionary Measure 409-14.
The recognition by both the IACtHR and the IACHR of the individual and
collective rights of Indigenous peoples can be seen in their various working
42 IACHR, Press Release No. 292/19, “IACHR strongly condemns attacks and murders against per-
sons, authorities and members of the Indigenous Guard in Colombia,” November 12, 2019, https://
www.oas.org/en/iachr/media_center/PReleases/2019/292.asp (accessed December 16, 2021).
43 IACHR, “IACHR presents its semi-annual balance sheet report on the implementation of the
2017–2021 Strategic Plan and the results of its work during the first half of 2019,” July 31, 2019.
mechanisms, including the system of PMs. In the four cases described, the
Commission applied the existing standards on territorial rights, cultural iden-
tity, and intersectional and inter-institutional participation: requesting States
to adopt culturally appropriate measures to protect the life and integrity of the
beneficiaries, valuing the special relationship that Indigenous peoples have with
their territory, and expressly requiring that the measures adopted be agreed upon
with the beneficiaries or their representatives. However, despite the progress
made by the Court and the Commission in these areas, considerable challenges
remain. Regarding States in general, there is a lack of State bodies to oversee
compliance and the implementation of PMs, especially when they are required
to be culturally relevant. The IACHR, for its part, also presents challenges linked
to the monitoring of compliance with these PMs by States.
The foregoing issues reveal the need for the different actors to join forces
in order to make fulfilling the precautionary and supervisory function of the
IAHRS more effective with regards to the human rights of Indigenous peoples
living in grave and urgent situations. In the current regional context, this situa-
tion gains a higher priority every day. Ombudsmen and national human rights
institutions in different countries in the region, as well as the IACHR itself, have
found that preventive and protective measures via PMs are increasingly relevant
in guaranteeing the rights of Indigenous peoples to life and physical integrity.
Their implementation has a real impact on safeguarding the lives of Indigenous
beneficiaries.
Despite the preceding, both the IACHR and nongovernmental organiza-
tions report an alarming upsurge in violent actions, including murders of
Indigenous people and their authorities and leaders, and a growing stigmatiza-
tion of Indigenous peoples by public officials in the region. Hence, it is essen-
tial that States complying with these PMs do so through intercultural dialogue;
this way the affected peoples also agree to the measures. The measures should
also enable the strengthening of the Indigenous communities’ own protection
and prevention mechanisms, especially regarding those peoples who have an
Indigenous Guard. This is essential when we talk about PMs with Indigenous
beneficiaries: the measures must be agreed upon with due participation and with
differentiated approaches within the framework of an intercultural dialogue. This
is undoubtedly a challenge for States, as well as for the Inter-American System.
II.4
The Inter-American Human Rights System
and Its Impact on the Human Rights
of Women
The Issue of Sexual Violence
By Julissa Mantilla Falcón
1. Introduction
The importance of the Inter-American Human Rights System (IAHRS)’s recog-

nition of sexual violence as a violation of human rights and formulation of sexual
violence criminal investigation guidelines is undeniable. Although this recogni-
tion has arrived only recently due to the absence of a gender perspective in the
traditional vision of international human rights law (IHRL), it is clear that the
input and guidelines of the IAHRS are now making a long-lasting contribution
to the fight against impunity concerning the various forms of sexual violence. In
this chapter, we present some of the most relevant developments in this topic,
highlighting their transformative impact on preventing such occurrences and
guaranteeing the adequate punishment thereof.
2. The IHRL Regulatory Framework for the Investigation

of Sexual Violence
In recent years, the introduction of a gender perspective into law and, particu-
larly, IHRL has allowed the human rights community to realize how, tradition-
ally, certain forms of gender violence have been neglected. The most prominent
example of this is violence against women. In fact, even though equality and
nondiscrimination have been recognized as fundamental aspects of human
rights since the Universal Declaration of Human Rights (1948), the issue of
women’s rights and the rights of the LGBTIQ+community were not a priority in
the development of human rights standards. This influenced the late recognition
Julissa Mantilla Falcón, The Inter-American Human Rights System and Its Impact on the Human Rights of Women
In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo
Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Julissa Mantilla Falcón 2024.
DOI: 10.1093/oso/9780197744161.003.0015
The Issue of Sexual Violence 269
of human rights violations that affect these groups, such as femicide, obstetric
violence, sexual violence, and hate-based violence.
The first human rights treaty to specifically address women’s rights was the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW, 1979). This treaty defines discrimination against women as “any dis-
tinction, exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on the basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field” (Article 1).1 This treaty constituted a crit-
ical milestone since, until then, there had been no precise definition of discrim-
ination against women and, in addition, the content of the treaty established
obligations on the part of the States to modify the social and cultural patterns
of conduct of men and women “with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea
of the inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women” (Article 5). In other words, it acknowledges the impor-
tance of a vision of the transformation of social reality to eliminate discrimina-
tion. Furthermore, it recognizes that the gender stereotypes and roles that are
replicated through socialization from childhood contribute to the subordination
suffered by women.
In 1989, the CEDAW Committee published General Recommendation No.
12,2 which recommends that the States report upon their legislation in force to
protect women against violence against women, including sexual violence, and
upon the support measures for victims, statistical data, and any other measures
being taken with the aim of eradicating violence.
In 1992, the CEDAW Committee issued General Recommendation 19, stating
that “[g]‌ender-based violence, which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general international
law or under human rights conventions, is discrimination within the meaning
of Article 1 of the Convention.”3 As can be seen, this document establishes a
clear link between violence against women and discrimination. This link has a
1 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
(1979), <https://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx> (accessed January

14, 2022).
2 Committee on the Elimination of Discrimination against Women, “Violence against women,”
General Recommendation No. 12 (1989), <https://conf-dts1.unog.ch/1%20SPA/Tradutek/Derech

os_hum_Base/CEDAW/00_4_obs_grales_CEDAW.html#GEN12> (accessed January 14, 2022).
General Recommendation No. 19 (January 29, 1992), para. 7, <https://tbinternet.ohchr.org/Treaties/

CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_3731_E.pdf> (accessed January
14, 2022).
270 Julissa Mantilla Falcón
significant impact because the principle of nondiscrimination is a peremptory

norm (ius cogens) of IHRL.
In 2017, the CEDAW Committee published General Recommendation 35,
stating that “prohibition of gender-based violence against women has evolved
into a principle of customary international law.”4 This includes sexual violence,
an aspect of extreme relevance, since it enshrines the prohibition of this type of
violence in the sphere of international practice, which constitutes a source of in-
ternational law.
The approval of the CEDAW and the first recommendations of the CEDAW
Committee formed the background against which, in 1993, the UN General
Assembly—on the occasion of the Second World Conference on Human Rights
in Vienna—approved the Declaration on the Elimination of Violence Against
Women (the Declaration).5 The Declaration defines violence against women as
“any act of gender-based violence that results in, or is likely to result in, physical,
sexual or psychological harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring in public or
in private life” (Article 1).
Additionally, the Declaration includes in its definitions “[p]‌hysical, sexual and
psychological violence occurring in the family, including battering, sexual abuse
of female children in the household, dowry-related violence, marital rape, female
genital mutilation and other traditional practices harmful to women, non-spousal
violence and violence related to exploitation; Physical, sexual and psychological
violence occurring within the general community, including rape, sexual abuse,
sexual harassment and intimidation at work, in educational institutions and else-
where, trafficking in women and forced prostitution; Physical, sexual and psycho-
logical violence perpetrated or condoned by the State, wherever it occurs” (Article
2). The Declaration would be the precedent for the creation of the UN post of
Special Rapporteur on violence against women, its causes and consequences.6
In the inter-American sphere, in 1994, the Inter-American Convention
on the Prevention, Punishment and Eradication of Violence against Women
(Convention of Belém do Pará)7 was approved. The Convention of Belém do
General Recommendation No. 35 (July 14, 2017), para. 2, <https://tbinternet.ohchr.org/Treaties/

CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_35_8267_E.pdf> (accessed January
14, 2022).
5 United Nations General Assembly, “Declaration on the Elimination of Violence Against
Women” (1993), <https://www.ohchr.org/EN/ProfessionalInterest/Pages/ViolenceAgainstWomen.

aspx> (accessed January 14, 2022).
6 Commission on Human Rights, Resolution 1994/45 (March 4, 1994).
7 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against
Women (Convention of Belem do Para) (1994), <http://www.cidh.org/Basicos/English/basic13.

Conv%20of%20Belem%20Do%20Parahtm> (accessed January 14, 2022).
Pará is the first international treaty that directly focuses on this topic. This
treaty conceptualizes violence against women as a violation of human rights,
defining it as “any act or conduct, based on gender, which causes death or phys-
ical, sexual or psychological harm or suffering to women, whether in the public
or the private sphere” (Article 1) and including physical, sexual, and psycholog-
ical violence that occurs within the family or domestic unit or within any other
interpersonal relationship or in the community as well as such violence that is
perpetrated or condoned by the State or its agents regardless of where it occurs
(Article 2).
Furthermore, Article 7 of the Convention of Belém do Pará stipulates that
the States parties agree to pursue, by all appropriate means and without delay,
policies to prevent, punish, and eradicate violence against women. One ex-
tremely relevant provision of the Convention of Belém do Pará is found in
Article 6, which provides for the right of every woman to a life free from vi-
olence, including the right of women to be free from all forms of discrimi-
nation and the right of women to be valued and educated free of stereotyped
patterns of behavior and cultural practices based on concepts of inferiority
or subordination. In addition, the Convention addresses the topic through
an intersectional approach, indicating that—when adopting measures to pre-
vent, eradicate, and punish violence—the States parties shall “take special ac-
count of the vulnerability of women to violence because of, among others,
their race or ethnic background or their status as migrants, refugees or dis-
placed persons. Similar consideration shall be given to women subjected to
violence while pregnant or who are disabled, of minor age, elderly, socioec-
onomically disadvantaged, affected by armed conflict or deprived of their
freedom” (Article 9). Moreover, the Convention of Belém do Pará establishes
the possibility of submitting petitions to the IAHRS when the States parties
fail to comply with their obligations (Articles 7 and 12). In this context, the
Inter-American Commission on Human Rights (IACHR) established the
Rapporteurship on the Rights of Women, also in 1994. The work of this Office
has been invaluable concerning the development of standards and reporting
on this topic.
In this way, a general international framework for increasing awareness about
the human rights of women and for protecting these rights is being gradually
consolidated, which in turn will help to enable the denormalization of violence
against women and the analysis of violence against women as a human rights
issue in the context of State international responsibility. In this regard, we are
seeing an increase in the awareness of sexual violence in its various forms and
within the framework of the inter-American standards, which we will consider
in more detail in the following.
3. Inter-American Standards and Their Role in the

Recognition and Condemnation of Sexual Violence
Jurisprudence and advances relating to the IAHRS have contributed to both the
definition of sexual violence and to the investigation of sexual violence. Although
initial developments did not specifically increase factual awareness, we now have
precise, clear standards that have allowed national jurisdictions and local policy
development to establish clear action frameworks. In this respect, the first thing
to highlight here is that the Inter-American Court of Human Rights (IACtHR)
has established through its case law that both CEDAW and the Convention of
Belém do Pará supplement international corpus iuris with regard to the pro-
tection of the personal integrity of women, which forms part of the American
Convention on Human Rights (ACHR).8 In Advisory Opinion 16/99,9 the
IACtHR already stressed the importance of the IHRL corpus iuris, establishing
that it was composed of international legal instruments with varied content and
legal effect (treaties, declarations, and resolutions) and that its dynamic evolu-
tion enabled an understanding of the development of fundamental rights. In this
sense, the recognition of the conventions mentioned previously as part of this
corpus iuris has significant consequences for protecting women’s rights and, spe-
cifically, for the prevention, investigation, and sanctioning of sexual violence and
the provision of reparations for victims.
3.1. Recognition of Sexual Violence as a Violation

of Human Rights
An initial contribution of extreme importance in this process can be found in

the report on the case of Raquel Martín de Mejía v. Peru (1996)10 by the Inter-
American Commission on Human Rights, analyzing the sexual violence suffered
by the victim in the context of the arbitrary detention of her husband Fernando
Mejía Egocheaga, a lawyer, journalist, and political activist, in 1989.
In this report, the IACHR resolves to acknowledge as true the events relating
to the rape of Ms. Martín de Mejía by members of the Peruvian army, consid-
ering a series of reports from various intergovernmental and nongovernmental
organizations documenting “numerous rapes of women in Peru by members
8 Castro Castro v. Peru [2006] IACtHR, Ser. C No. 160, para. 276.
9 The right to information on consular assistance in the framework of the guarantees of the due
process of law [1999], IACtHR, Advisory Opinion 16, para. 115, <https://corteidh.or.cr/docs/opinio
nes/seriea_16_ing.pdf> (accessed January 14, 2022).
10 Report on Raquel Martin de Mejía v. Peru [1996], Case 10.970, IACHR, Report No. 5/96, OAS/
Ser.L/V/II.91, Doc. 7, at 168.

of the security forces in emergency areas and in which the specific case of
Raquel Mejía is mentioned and described as representative of this situation.”11
Additionally, the IACHR recognized the nonexistence of effective domestic
legal remedies for Raquel and her husband, taking into account the fact that she
did not report the sexual abuse because she was afraid of reprisals and because
the available domestic resources were not sufficient to enable the events to be
reported.12 In its analysis, the IACHR concluded that the rape that occurred
constituted a violation of the State’s international responsibility to prohibit tor-
ture as established in Article 5 of the American Convention on Human Rights.13
To this effect, the IACHR identified elements of physical and mental suffering
and the intention of the perpetrator to punish and intimidate, and it found that
the act was realized by a member of State forces. Although this case was not
referred to the IACtHR, it can be considered as a landmark report with regard
to the forcefulness of the conclusions of the IACHR in characterizing rape as a
form of torture.
That said, if we take a look at the judgments of the IACtHR at this time, this
jurisprudence did not specifically include sexual violence and did not incorpo-
rate a gender perspective in its analysis. For example, in the judgment on the
case of María Elena Loayza Tamayo v. Peru (1997),14 referring to the detention
and subsequent mistreatment of the victim, the IACHR claimed that the right
to a humane treatment of the petitioner as per Article 5 of the ACHR had been
violated, since she had suffered torture and mistreatment during detention, in-
cluding rape. Nevertheless, the sentence of the IACtHR stated:
Although the Commission contended in its application that the victim was
raped during her detention, after examination of the file and, given the nature
of this fact, the accusation could not be substantiated. However, the other facts
alleged, such as incommunicado detention, being exhibited through the
media wearing a degrading garment, solitary confinement in a tiny cell with
no natural light, blows and maltreatment, including total immersion in water,
intimidation with threats of further violence, a restrictive visiting schedule, all
11 Ibid.
12 Ibid.
13 American Convention on Human Rights, Article 5 Right to Humane Treatment. “1. Every
person has the right to have his physical, mental, and moral integrity respected. 2. No one shall
be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All per-
sons deprived of their liberty shall be treated with respect for the inherent dignity of the human
person. . . ,” <https://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.
pdf> (accessed January 14, 2022).
14 Case of María Elena Loayza v. Peru [1997] IACtHR, Ser. C No. 33, para. 58.
constitute forms of cruel, inhuman or degrading treatment in terms of Article

5(2) of the American Convention. (Emphasis added.)
The IACtHR does not provide further information about the criteria that
caused it to accept all the allegations of mistreatment and torture but not those
of rape, nor does it give further detail about what the phrase “the nature of this
fact” means. Although the IACtHR condemns the State for violations of due
process and the infringement of the right to personal integrity in this case, it
is clear that the sexual aggression was rendered invisible and that, through its
sentence, the IACtHR established a different standard of truth for rape than for
other violations of human rights.
Subsequently, the IACtHR’s jurisprudence was amended, and in the case of
Plan de Sánchez Massacre v. Guatemala (2004), the sentence mentioned that
“the rape of the women was a common practice designed to destroy one of their
most intimate and vulnerable aspects of a person’s dignity,”15 concluding that the
victims were stigmatized in their communities.16
However, in 2006, with the sentence in the case of the Miguel Castro Castro
Prison v. Peru (2006),17 that the IACtHR consolidated a jurisprudential tendency
to recognize the existence of sexual violence, clearly identifying it as a violation
of human rights and including a gender-based focus in its analysis.
Thus, in this case, the IACtHR states that “during the armed conflicts women
face specific situations that breach their human rights, such as acts of sexual vi-
olence, which in many cases is used as ‘a symbolic means to humiliate the other
party.’ ”18
Additionally, the IACtHR analyzes different types of sexual violence and
“considers that sexual violence consists of actions with a sexual nature com-
mitted with a person without their consent, which besides including the physical
invasion of the human body, may include acts that do not imply penetration or
even any physical contact whatsoever.”19
Furthermore, the IACtHR identified the vaginal inspection suffered by one in-
mate at the Hospital of National Police at the hands of a group of hooded persons
as a sexual rape constituting torture, putting aside traditional interpretations
limiting rape to sexual relations without consent and establishing that “sexual
rape must also be understood as [an] act of vaginal or anal penetration, without
the victim’s consent, through the use of other parts of the aggressor’s body or
objects, as well as oral penetration with the virile member.”20
15 Case of Plan de Sánchez Massacre v. Guatemala [2004] IACtHR, Ser. C No. 116, para. 38.
16 Ibid., para. 49.
17 Castro Castro v. Peru [2006] IACtHR, Ser. C No. 160.
18 Ibid., paras. 223, 224.
20 Ibid., paras. 309 and 310.
Both the definition of sexual violence and that of rape would serve as
references for the analysis of subsequent cases in the region and as a point of ref-
erence for the development of national regulations.
In subsequent cases, the IACtHR established important precedents with re-
gard to the concept of rape, the investigation of violent acts, the role of legal
practitioners, and gender stereotypes as an element affecting the investigation
and punishment of such acts. In this sense, the IACtHR established that rape is
a particular type of aggression which, in general, is characterized through the
fact that it takes place in the absence of persons other than the victim and the ag-
gressor, which means that there is no visual or documentary evidence, meaning
that the word of the victim becomes crucial evidence. Moreover, the IACtHR
stressed that acts of sexual aggression constitute a type of crime that victims do
not tend to report due to the stigma generally associated with doing so.21
In the wake of these advances, the IAHRS has consolidated the concept of
sexual violence as a violation of human rights and has made other important
contributions to combating impunity in this area.
3.2. The Principle of Enhanced/Stringent Due Diligence
As of the precedent of Castro Castro v. Peru (2006), the IACtHR continued to

develop its jurisprudence in matters of sexual violence. In 2009, it published
the well-known sentence in the case of González et al. (“Cotton Field”) v. Mexico
(2009), dealing with the disappearance and death of Claudia Ivette Gonzáles,
Esmeralda Herrera Monreal, and Laura Berenice Ramos Monárrez.22 In
this case, identified as an incidence of violence against women, the IACtHR
concluded that the murders of the three women featured high levels of violence,
including sexual violence, and identified the existence of a culture of discrimina-
tion against women—recognized by the State and by various national and inter-
national organizations—which was evident in the motives and methods of the
crimes and in the prevailing impunity.23
21 In this respect, see Case of Rosendo Cantú et al. v. Mexico [2010] IACtHR, Ser. C No. 216; Case of
J. v. Peru [2013] IACtHR, Ser. C. No. 275.

22 For an analysis of this decision within a transformative constitutionalism paradigm, see Katrin
Tiroch and Luis E. Tapia Olivares, “La Corte Interamericana de Derechos Humanos y la protección
transnacional de la mujer: análisis de la sentencia González y otras vs. México (Campo Algodonero),”
in Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi (coords.), La
Justicia Constitucional y su Internacionalización:¿ Hacia un Ius Constitutionale Commune en América
Latina? T. II (UNAM 2010), 497–531; Eduardo Ferrer Mac-Gregor and Fernando Silva García,
“Homicidios de mujeres por razón de género. El Caso Campo Algodonero,” in Armin von Bogdandy,
Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi (coords.), La justicia constitucional y
su internacionalización: ¿Hacia un Ius Constitutionale Commune en América Latina? T. II (UNAM
2010), 259–333.
23 Case of Gonzáles et al. (“Cotton Field”) v. Mexico [2009] IACtHR, Ser. C No. 205, para. 164.
What is interesting here is how the IACtHR analyzes the State’s duty of pre-
vention and establishes that, in the specific instance of cases of violence against
women, the States “also have the general obligation established in the American
Convention on Human Rights, an obligation reinforced since the Convention of
Belem do Para came into force.”24 This means that, once again, the IACtHR rein-
forced the idea of the Convention of Belém do Pará forming part of international
corpus iuris on the rights of women, reinforcing a jurisprudential tendency in
this field that is increasingly progressive.
After analyzing the context of the events of the case, the IACtHR found that the
State was aware that there was a real and imminent risk that the victims would be
sexually abused, subjected to ill-treatment, and killed and that therefore “an ob-
ligation of strict due diligence arises in regard to reports of missing women, with
respect to search operations during the first hours and days.”25 This is a funda-
mental aspect since, in addition to the principle of due diligence that the IACtHR
had already recognized since the precedent of Velásquez Rodríguez v. Honduras
(1987), the Tribunal established a higher threshold for evaluating the diligence of
the State with regard to compliance with international obligations, also finding
that impunity in such cases contributes to tolerance in general toward violence
against women.
Recently, in 2018, the IACtHR ruled on the case of Linda López Loayza
v. Venezuela,26 which concerns the deprivation of liberty suffered by the victim
in 2001, lasting almost four months. During that time, the victim was subjected
to various acts of violence and mistreatment, including sexual violence, to the
extent that she subsequently had to spend almost a year in hospital, undergoing
numerous surgical interventions.
In this case, and although one individual committed the acts, the IACtHR
again stressed that—in addition to the general obligations of the ACHR—
States have particular obligations arising from the Convention of Belém do
Pará and established that since the acts concerned violence against a woman,
this constituted “a circumstance that required an enhanced due diligence that
transcended the particular context of this case and resulted in the need to adopt a
range of different measures intended, in addition to preventing specific acts of vi-
olence, to eradicate any act of gender-based violence in future.”27 As can be seen,
the IACtHR again raises the existence of an enhanced/stringent form of due dil-
igence and places it within the framework of the objectives of the Convention of
Belém do Pará with regard to the eradication of violent acts.

26 Case of Linda López Loaiza v. Venezuela [2018], IACtHR.
Also, in this case, the IACtHR revises its previous jurisprudence and mentions
the various elements and indications used to determine whether the State was
aware of the inherent risk in cases of violence against women, evaluating the
manner in which the State became aware of the facts, the relevant context, and
the reports filed or the real possibility of persons connected to the victims filing
reports.28
Another essential aspect when assessing the due diligence of the States
concerns the specific risk of women suffering sexual violence in cases of the
kidnapping or disappearance of women, as occurred in the case of Linda López.
This aspect is highly relevant since it consolidates the idea of the examination of a
backdrop of violations of human rights that facilitates the perpetration of sexual
violence and that, at the same time, enables an understanding of the failure to re-
port such acts considering the high incidence of disappearances of women and
of femicide in the region. This context analysis realized by the IACtHR is an ex-
tremely valuable tool for understanding the particular risk of women of suffering
sexual violence, allowing us to understand the need for the training and educa-
tion of agents of the State and legal practitioners to take the complexity of the
facts into account as part of compliance by the States with their international
obligations with enhanced due diligence.
3.3. The Intersectional Perspective when Approaching

the Issue of Sexual Violence
The concept of intersectional analysis arose primarily from the work of Kimberlé
Crenshaw who, having studied the situation of Black women and their subor-
dination on the basis of race and gender, highlighted the need to analyze their
experiences in a multidimensional way, raising awareness of the complexities of
discrimination and the heterogeneity of the groups of people affected by it.29 In
this regard, the concept of intersectionality is a tool enabling awareness to be
raised about the “interaction between various forms and sources of systems of
power and discrimination,”30 an aspect that needs to be taken into consideration
in the analysis of human rights.

29 Suggested further reading on this topic: Kimberlé Crenshaw, “Demarginalizing the Intersection
of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory
and Antiracist Politics,” 1989 University of Chicago Legal Forum, Article 8, <http://chicagounbo
und.uchicago.edu/uclf/vol1989/iss1/8> (accessed January 14, 2022); Ben Smith, “Intersectional
Discrimination and Substantive Equality: A Comparative and Theoretical Perspective” [2016] 16 The
Equal Rights Review 73.
30 United Nations, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary
executions on a gender-sensitive approach to arbitrary killings, Human Rights Council,” Thirty-fifth

Session 2017, para. 21.
In this regard, the inter-American standards incorporate an intersectional

perspective when analyzing the human rights of women that allows discrimina-
tion to be understood from a structural and historical viewpoint and that, rather
than being limited to the sum of individual acts, has a general impact upon the
enjoyment of human rights and fundamental freedoms.
In the inter-American sphere, the IACHR has asserted an intersectional ap-
proach in its work on promoting and protecting human rights. Without going
too far back, in its recent Resolution 1/2020, “Pandemic and Human Rights in
the Americas,” the IACHR insists that the States parties apply an intersectional
perspective in all measures adopted in this context and, in the specific case of
women, recommends to the States parties that their response to the pandemic
should incorporate the perspective of gender based on an intersectional ap-
proach, “taking into account the different contexts and conditions that could
increase the vulnerability to which women are exposed, such as, inter alia, eco-
nomic difficulties, age, status as a migrant or displaced person, disability, incar-
ceration, ethnic or racial origin, sexual orientation and gender identity and/or
expression.”
For the specific case of sexual violence, the IACHR, in its various declarations
and reports, has established a series of guidelines with this intersectional per-
spective for studying and raising awareness of such acts. Thus, for example, in its
report on access to justice for women who have been victims of sexual violence,
the IACHR highlighted the particular risk that girls, Indigenous women, women
with a disability, and women affected by armed conflict have of their human
rights being violated.31
Additionally, in its report on Indigenous women, the IACHR expressed its
concern that forensic medical and legal expert examinations do not ensure re-
spect for Indigenous customs in cases of sexual offenses, establishing that the
States have an obligation to realize culturally appropriate expert examinations in
cases involving Indigenous women.32
Recently, the IACHR published a report on violence toward girls and
adolescents, highlighting the impact of this type of violence upon their life plans,
as occurs in the case of maternity and forced marriages as a result of rape and in
the case of stigmatization suffered in schools, for example, focusing in particular
on cases of girls and adolescents of Indigenous or African descent.33 All of these
reports contribute to a better understanding of the specific situations of human
31 IACHR, “Report on Access to Justice for Women Victims of Sexual Violence: Education and
Health” (2011), 19, <https://www.oas.org/en/iachr/women/docs/pdf/SEXUALVIOLENCEEducHea

lth.pdf> (accessed January 14, 2022).
32 IACHR, “Report on Indigenous Women and Their Human Rights in the Americas” (2017), 104,
<http://www.oas.org/en/iachr/reports/pdfs/IndigenousWomen.pdf> (accessed January 14, 2022).

33 Ibid., paras. 231, 238.
rights violations and the complex impact of sexual violence in the various af-
fected groups.
In the scope of the jurisprudence of the IACtHR, the Tribunal had already
revealed its hand from this perspective in the sentences in the cases of Valentina
Rosendo Cantú and Inés Fernández Ortega, both versus Mexico (2010), relating
to rape committed on Indigenous women by members of the armed forces. One
of the victims was seventeen years old when the acts were committed. In its
judgments, the IACtHR highlighted aspects such as the situation of particular
vulnerability of the victims as members of Indigenous communities, difficulties
in reporting the acts to authorities who did not speak their language, and pos-
sible rejection by their community. It also stressed the need to take this situation
into account for remedial measures.34
Recently, the IACtHR has issued meaningful sentences incorporating an in-
tersectional approach. Firstly, the case of V.R.P., V.P.C. et al. v. Nicaragua,35 con-
cerning irregularities in the judicial process regarding a rape committed on a
nine-year-old girl by her father. In the face of the complaints made by the girl’s
mother (V.P.C.), complaints were filed against her for slander and libel, and she
felt obliged to flee the country with her two children for the United States, where
they were granted asylum. Applying an intersectional approach, the IACtHR es-
tablished that, according to Article 19 of the ACHR on the rights of the child, the
States parties should adopt special measures for cases of sexual violence in which
the victims are children or adolescents over and above the established standards
for cases where the victims are adult women, in the context of the obligation of
the State to exercise enhanced due diligence.
The IACtHR, therefore, applied the principles of the Convention on the Rights
of the Child, referring to the principle of nondiscrimination, the principle of the
best interest of the child, the principle of respect for the right to life, survival,
and development, and the principle of respect for the opinion of the child.36 It
is worthwhile to underline how the IACtHR consolidates the idea of different
standards in this case, guiding the way for the adoption of specific measures
by the States for cases relating to children and adolescents, which will conse-
quently result in the adaptation of investigation processes in line with their situa-
tion. As is already known, these processes were not conceived with children and
adolescents in mind and can bring about their revictimization. This is why the
stringent diligence required to avoid the perpetrator’s presence and interaction
between the perpetrator and the victims is vital.
34 Case of Fernández Ortega et al. v. Mexico [2010] IACtHR, Ser. C No. 215; Case of Rosendo Cantú
et al. v. Mexico [2011], IACtHR, Ser. C No. 47.

35 Case of V.R.P. and V.P.C.** et al. v. Nicaragua [2018] IACtHR, Ser. C No. 350.
In this case, the IACtHR recommended that the professionals in charge

of the investigation and victim assistance should have training that takes the
perspectives of gender and children into account. In its sentence, the IACtHR
analyzed each of the procedures and examinations to which the victim was
subjected, concluding that these did not respect human rights standards and,
furthermore, in many cases constituted discriminatory acts and renewed aggres-
sion toward the girl, stating that her participation “was conceived only in terms
of evidence and not taking into consideration her situation as a titleholder of
rights, whose opinions should have been taken into account.”37
In March 2020, the IACtHR pronounced sentence in the case of Azul Rojas
Marín et al. v. Peru (2020),38 relating to the torture suffered by a transgender
woman in 2008 after being detained by the police on her way home. During her
arrest and at the police station where she was held, the victim suffered homo-
phobic insults, was forcefully stripped, and subjected to torture and rape.
In this case, the IACtHR stressed the structural and historical discrimination
suffered by the LGBTIQ+population and highlighted the fact that sexual orien-
tation, gender identity, and gender expression are categories that are protected
by the ACHR, further establishing that violence against LGBTIQ+persons has a
symbolic purpose since “the victim is chosen in order to communicate a message
of exclusion or subordination.”39
An intersectional approach to cases of sexual violence and other violations
of human rights is of the utmost importance to recognize the victims’ specific
situations and, further, to determine proposals for reparation. In other words,
incorporating this approach in inter-American advances relating to sexual vio-
lence enables improved and increased awareness of such acts along with specific
analysis for the prevention of future, similar acts and the recognition of diversity
and nondiscrimination.
3.4. Gender Stereotypes and Their Impact into the

Investigation of Sexual Violence40
International human rights standards have identified gender stereotypes

as a cause of violations of human rights and, in particular, of violence against
women, since such stereotypes contribute to the perpetuation of situations of

38 Case of Azul Rojas Marín et al. v. Peru [2020] IACtHR, Ser. C No. 402.
39 Ibid., para. 93.
40 This section has been drafted on the basis of the expert reports presented by the author to the
Inter-American Court of Human Rights in her capacity as an expert appraiser for the Inter-American
Commission on Human Rights in 2016 and 2017.
subordination and inequality between men and women. In their well-known

work, Cook and Cusack define stereotypes as generalized or preconceived views
of the personal attributes of men and women, including personality traits, be-
havioral characteristics, roles, physical characteristics, and social functions.41
In this respect, we talk of “gender stereotypes” when certain characteristics,
attitudes, and roles are attributed to persons simply because they belong to the
female or male social grouping and when it is expected that persons will act
accordingly and will not violate the rules and regulations of behavior that have
been assigned to them by society. Such stereotypes limit autonomy and per-
sonal development since when people do act in a way that contradicts these
stereotypes, they are faced with social condemnation that jeopardizes their
autonomy, human rights, and fundamental freedoms and which can result in
situations of violence.
At the IAHRS level, the jurisprudence of the IACtHR has enabled the chal-
lenging of the gender stereotypes present in the investigation of violence
against women and in the punishment of perpetrators; these stereotypes have
contributed to the widespread impunity in this area. In the specific case of sexual
violence, in the Cotton Field case, the IACtHR established that stereotypes
are one of the causes and one of the consequences of gender violence toward
women.42 Similarly, throughout its jurisprudence, the IACtHR stresses that one
of the prerequisites for access to justice on the part of victims of sexual violence
is establishing rules for assessing evidence that avoids gender stereotypes43 that
could encourage impunity.
Moreover, in the case of Claudina Velásquez Paiz v. Guatemala (2017),44
concerning the disappearance and death of a young Guatemalan woman, the
IACtHR noted that the absence of a gender-based approach in the criminal
investigation—so an investigation based in preconceived ideas and stereotypes—
would render invisible prior events and the circumstances in which the death
occurred as well as the sexual violence suffered by the victim. In other cases,
the IACtHR has established that gender stereotypes contribute to undermining
the credibility of the victims and to making them feel responsible for the vio-
lence they have suffered—due to their sexual conduct, occupation, or way of
dressing—and that this affects the lines of investigation that the State should
follow in such cases.45
41 Rebecca J. Cook and Simone Cusack, “Gender Stereotyping: Transnational Legal Perspectives”
[2010] Profamilia 11.

42 Case of Gonzáles et al. (“Cotton Field”) v. Mexico [2009] IACtHR, Ser. C No. 205.
43 Case of Espinosa Gonzáles v. Peru [2014] IACtHR, Ser. C No. 283, para. 278.
44 Case of Velásquez Paiz et al. v. Guatemala [2017] IACtHR, Ser. C No. 307, para. 197.
45 Case of Gutiérrez Hernández v. Guatemala [2017] IACtHR, Ser. C No. 339, para. 170.
3.5. Responsibility of the State for Sexual Violence as Torture
Although the IAHRS has recognized various kinds of sexual violence, in this
section, we will focus on the development of sexual violence as torture and the
standards for the responsibility of the State, since this is an issue where inter-
American jurisprudence has made extremely recent contributions.
As pointed out previously, with the case of Raquel Martín de Mejía v. Peru
(1996), the IACHR started to analyze rape as a form of torture, a precedent which
was reflected in subsequent IAHRS developments, in addition to the aforemen-
tioned case of Castro Castro v. Peru (2006).
In its jurisprudence,46 the IACtHR has analyzed certain acts of sexual vi-
olence in the light of the Inter-American Convention to Prevent and Punish
Torture, identifying intent, the severe physical and mental suffering resulting
from such acts, and the fact that the acts are committed for a specific purpose or
end as prerequisites for classification as torture. In its jurisprudential develop-
ment, the IACtHR has stated that severe suffering on the part of the victim is in-
herent to sexual violence even if there is no evidence of injury or physical harm,
recognizing the fact that victims experience psychological and social damage
and consequences, and listing standards of international criminal courts. With
regard to the purpose of sexual violence as torture, the IACtHR has stated that it
has the objective to intimidate, degrade, humiliate, punish, or control the person
subjected to it.
About the responsibility of the State, the IACtHR has stressed in its jurispru-
dence that sexual violence committed by agents of the State while the victims
are in custody constitute serious and reprehensible acts where the agent abuses
his power and takes advantage of the vulnerability of the victim, which can
cause serious psychological consequences for the victim.47 In this context, in
the recent sentence in the case of Women Victims of Sexual Torture in Atenco
v. Mexico (2018),48 the IACtHR resolved that the sexual violence—besides
constituting torture—was used by agents of the State as a strategy of control
and dominance that entailed using the detained women to transmit a mes-
sage of repression. Similarly, the IACtHR found that the absence of a gender
46 In this respect, see Case of Inés Fernández Ortega v. Mexico [2010] IACtHR, Ser. C No. 215,
paras. 120 et seq., Case of Rosendo Cantú et al. v. Mexico [2010] IACtHR, Ser. C No. 216; Case of
Espinoza Gonzáles v. Peru [2014] IACtHR, Ser. C No. 289.
47 The Inter-American Court of Human Rights pronounced accordingly in the case of Favela
Nova Brasília v. Brazil, 2017, para. 255, <https://www.corteidh.or.cr/docs/casos/articulos/ser
iec_333_esp.pdf>, and in the case of Women Victims of Sexual Torture in Atenco v. Mexico, 2018,
para. 196, <https://www.corteidh.or.cr/docs/casos/articulos/seriec_371_ing.pdf> (accessed January
14, 2022).
48 Case of Women Victims of Sexual Torture in Atenco v. Mexico [2018] IACtHR, Ser. C No. 371.
perspective in the investigation of torture and sexual violence violated the

special obligations imposed by the Convention of Belém do Pará and the ob-
ligation to respect and guarantee the rights contained in the ACHR without
discrimination.
Furthermore, in the case of Linda López Soto et al. v. Venezuela, the IACtHR
made reference to the Convention of Belém do Pará, confirming that this text
“should permeate the evolutive interpretation of conducts and acts of violence
against women that may be categorized as torture.”49 As mentioned previously,
the victim was kidnapped and subjected to a series of abusive and aggressive
acts, including rape constituting violations of her right to personal integrity,
these being analyzed by the IACtHR. In conclusion, the IACtHR stated that
“intentional acts perpetrated by a private individual that cause a woman se-
vere physical, sexual or psychological suffering may constitute acts of torture
and deserve a punishment adapted to their severity to achieve the goal of their
eradication.”50
However, since the acts were not committed by public officials, the State
questioned their classification as torture. Despite this, the IACtHR found that
classification as torture was not limited only to “its perpetration by public
officials, and the State’s responsibility is not engaged merely by the direct action
of its agents,”51 thus setting an important precedent with regard to the scope of
the State’s responsibility in this matter. Moreover, making use of the evolutive
interpretation for analyzing acts of violence against women that might con-
stitute torture and making reference to the Convention of Belém do Pará, the
IACtHR concluded that “acts of violence against women perpetrated by pri-
vate individuals cannot be excluded, when they are committed with the State’s
tolerance or acquiescence because it has deliberately failed to prevent them,”52
condemning the State in that its failure enabled the acts of torture against the
victim.
This case represents a milestone in this field. It opens up the possibility of the
State being held responsible for sexual violence committed by individuals, which
is essential because many acts of gender violence toward women and girls take
place in the private sphere and not necessarily only by agents of the State. This
analysis of the IACtHR, developing the notion of State responsibility, without
a doubt enables the consolidation of improved protection standards for the
victims of sexual violence.
49 Case of Linda López Soto et al. v. Venezuela [2018] IACtHR, Ser. C No. 362, para. 197.
While prior to the turn of the millennium, as in particular reflected in the case
of María Elena Loayza Tamayo v. Peru (1997), the IACtHR did not yet include
a gender perspective in its interpretations and even rendered sexual aggression
invisible, subsequent jurisdiction adapted to a trend which already had been
paved by the IACHR and its landmark report on the case of Raquel Martín de
Mejía v. Peru (1996). Forthcoming, an inter-American corpus iuris, with the
Convention of Belém do Pará at its heart, was consolidated and contributed both
to a more precise definition and to the investigation of sexual violence. As such,
the sentence in the case González et al. (“Cotton Field”) v. Mexico (2009) specified
the obligations of States and their duty of prevention. In 2018, the IACtHR ruled
on the case of Linda López Loayza v. Venezuela and thereby placed due diligence
within the framework of the objectives of the Convention of Belém do Pará to
further promote and guarantee the eradication of violent acts.
Both the Court’s intersectional approach and the challenging of gender
stereotypes—present in the investigation of violence against women and in the
punishment of perpetrators—complement the corpus iuris. The intersectional
approach has led to an acknowledgment of the increased vulnerability and dis-
crimination of certain groups as rooted in structural and historical conditions.
This has helped to determine proposals for reparation and enforces a recogni-
tion of diversity and nondiscrimination. Likewise, gender stereotypes have
been revealed to be present in the investigation of violence against women and
in the punishment of perpetrators. Finally, over the past decades, the IACtHR
has analyzed certain acts of sexual violence in the light of the Inter-American
Convention to Prevent and Punish Torture, thereby both defining sexual vio-
lence as a form of torture as well as reminding of the State obligations in this
regard, in particular when it comes to violent acts on behalf of agents of the State.
In sum, the definition of sexual violence as gender violence and violation of
human rights coincides with a process of international standards development in
which the IAHRS has played an important role. States in the region have a neces-
sary set of legal tools that enables them to comply with international obligations
and reduce impunity in such cases. Further, in the IAHRS, victims have a means
of access to justice in which they can have their dignity recognized and—above
all—recover the full enjoyment of their human rights and freedom.
II.5
The Transformative Impact of the Artavia
Murillo Case on In Vitro Fertilization
By Silvia Serrano Guzmán
1. Introduction and Brief History of the Case
On January 19, 2001, an individual petition was filed before the Inter-American
Commission on Human Rights (IACHR) against the Republic of Costa Rica in
representation of nine infertile couples who were affected by the general prohi-
bition against the practice of assisted reproduction known as in vitro fertiliza-
tion (IVF). The number assigned to the petition was 12,361, and it had different
denominations during the proceedings before the Commission.1 The Inter-
American Court of Human Rights (IACtHR) named the case Artavia Murillo
and others—In Vitro Fertilization (“Artavia Murillo”) v. Costa Rica. The basic facts
of the case can be summarized as follows. On March 15, 2000, the Constitutional
Chamber of the Supreme Court of Justice of Costa Rica (the Constitutional
Chamber) issued a judgment with general effects in which it declared that
Executive Decree 24029-5 of February 3, 1995, was unconstitutional. This
Executive Decree authorized IVF treatment for married couples and included a
regulation for its practice.
The substantive argument of the Constitutional Chamber was related to its in-
terpretation of the scope of the protection of the right to life. The Constitutional
Chamber first established that, given the stage of scientific development at the
moment of the judgment, the practice of IVF necessarily encompassed the loss
of embryos. A reference was then made to the right to life being enshrined in
the Costa Rican Constitution and the American Convention on Human Rights
(ACHR) and concluded that both normative instruments impose an absolute
protection of the embryos that result from the fertilization of an egg by sperm
outside the womb and are not implanted into the uterus.2 On March 11, 2004, the
1 Gretel Artavia Murillo et al. (“In Vitro Fertilization”) [2010] IACHR, “Report No. 85/10,” Case
12.361.
2 Constitutional Chamber of the Supreme Court of Justice, Costa Rica, Judgment No. 2000-02306
of March 15, 2000, Case file No. 95-001734-007-CO.
Silvia Serrano Guzmán, The Transformative Impact of the Artavia Murillo Case on In Vitro Fertilization In: The
Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo
Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Silvia Serrano Guzmán 2024.
DOI: 10.1093/oso/9780197744161.003.0016
286 Silvia Serrano Guzmán
Commission approved its Admissibility Report No. 25/2004, which established

its competence to decide the petition and declared that it was admissible under
the requirements of Articles 46 and 47 of the ACHR.3 The Commission received
the additional allegations on the merits from the petitioners and the State, as
well as several additional submissions. It also held a public hearing on the merits
during its 133º period of sessions on October 28, 2008. The Commission re-
ceived a relevant number of amici curiae briefs in support of the arguments of
both parties.4
According to Article 50 of the ACHR, on July 14, 2010, the IACHR approved
its Merits Report No. 85/10, in which it established the international respon-
sibility of Costa Rica for the violation of Articles 11.2 (right to privacy), 17.2
(rights of the family), and 24 (right to equal protection) of the Convention in
relation to the general obligations established in Articles 1.1 and 2 of the same
treaty, to the detriment of the eighteen persons named on the initial petition. The
Commission also recommended that Costa Rica (1) lift the domestic prohibi-
tion on the practice of IVF, (2) guarantee that the regulation of IVF after lifting
the prohibition is compatible with its international obligations, and (3) provide
integral reparations for the victims.5 The Commission notified its Merits Report
to the parties and requested Costa Rica to provide information within two
months regarding compliance with the recommendations. After granting three
extensions at this stage, the IACHR considered that Costa Rica did not report
substantial compliance with the recommendations. Therefore, on July 29, 2011,
the Commission submitted the case to the Court.6
The case was processed by the Court as established in its Rules of Procedure.
Consequently, the representatives of the victims presented their autonomous
Briefs containing Pleadings, Motions, and Evidence on December 19 2011,7
and the State presented its Answer on April 30, 20128. Given that the State filed
preliminary objections, the Court granted to both the Commission and the rep-
resentatives of the victims an additional opportunity for written allegations re-
garding those objections.9 A few months later, the Court held a public hearing
on September 5–6, 2012, in which victims, witnesses, and expert witnesses
presented their declarations and the parties presented their oral allegations.10
3 Ana Victoria Sánchez Villalobos and others [2004] IACHR, “Report No. 25/04,” Petition 12.361.
4 Gretel Artavia Murillo et al. (“In Vitro Fertilization”) (n. 1).
5 Gretel Artavia Murillo et al. (“In Vitro Fertilization”) (n. 1).
6 IACHR, Submission Note to the IACtHR, https://www.corteidh.or.cr/docs/casos/articulos/ser
iec_257_ing.pdf (accessed December 29, 2022).

7 IACtHR, Article 40 of the Rules of Procedure.
10 For the complete hearing, see https://vimeo.com/48921880 (accessed December 29, 2022).
Transformative Impact of the Artavia Murillo Case 287
After receiving the final written allegations, the IACtHR issued its judgment on
the preliminary objections, merits, reparations, and costs on November 28, 2012.
The Artavia Murillo judgment is paradigmatic for several reasons. First, con-
sidering the judgment itself, it was the first opportunity to develop in various
directions the case law of the Inter-American System. The interpretation of
the Court has been used by a number of domestic tribunals in other States and
functions as the basis for the recognition of reproductive rights.11 Second, al-
though the case was presented in favor of eighteen individualized victims, it has
had a nationwide impact in Costa Rica. Third, during the process of compliance
supervision, the Court played an unprecedented role in safeguarding the effec-
tiveness of its decision. This chapter is intended to describe and comment on
each component of the widespread and multilevel impact of this case.
2. Transformative Impact in the Development of

Inter-American Jurisprudence
The evolution of the case law of the Inter-American System in the wake of the
Artavia Murillo case can be presented in two main topics: (1) the interpretation
of the protection of the right to life under Article 4.1 of the Convention, and
(2) the legal standards related to reproductive rights, including the right to “re-
productive autonomy” and its permissible limitations.
2.1. The Interpretation of the Protection of the Right to Life

under Article 4.1 of the Convention12
The IACtHR noted that the Constitutional Chamber interpreted Article 4.1 of
the Convention to establish the absolute protection of the right to life and subse-
quently justified the prohibition of IVF on these grounds. Therefore, it deemed it
necessary to analyze, as the authoritative interpreter of the Convention, whether
such an interpretation was admissible. In order to do so, the Court resorted to
the methods of interpretation provided in the Vienna Convention on the Law
of Treaties, as well as the parameters set forth in Article 29 of the Convention.
11 For a broader analysis of how Inter- American precedents generate transformative im-
pact: Ximena Soley, “The transformative dimension of inter-American jurisprudence,” in Armin von
Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America: the emergence of a new ius
commune (Oxford University Press 2017), 337–355.
12 Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica [2012], IACtHR, Ser. C No. 257. The
contents of the Judgment quoted under this subheading can be found in paras. 171–264.
In this section, I will summarize the result of the interpretation according to each
method and the final conclusion of the Court.
2.1.1. Interpretation in Accordance with the Ordinary Meaning

of the Terms
As the start, the IACtHR recalled the literal content of Article 4.1 of the
ACHR: “Every person has the right to have his life respected. This right shall be
protected by law and, in general, from the moment of conception. No one shall be
arbitrarily deprived of his life [emphasis added].” Based on such wording, the
Court underlined the relevance of assessing the terms “conception” and “in gen-
eral.” The following were the main considerations of the Court with respect to
those terms:
• According to the scientific evidence and the expert declarations received

during the processing of the case, IVF transformed the understanding of the
term “conception” because it showed the possibility that some time frame
passes between the union between the egg and the sperm and the actual
implantation of the embryo in the uterus. In 1969 (the year the Convention
was signed), the Royal Spanish Academy defined “conceive” as “the female
getting pregnant,” and “fertilize” as “join[ing] together the male reproduc-
tive element to the female one.” These definitions remain almost identical
for the Royal Spanish Academy. The scientific evidence coincides in stating
that only when the moment of implantation ends is it possible to speak of
conception because there is no chance of development without implanta-
tion of the embryo. When Article 4 of the Convention was drafted, neither
the Royal Spanish Academy nor the Convention mentioned the moment of
fertilization when referring to conception.
• Regarding the expression “in general,” the literal interpretation indicates
that the norm involves the possibility of considering exceptions.
The conclusion of the IACtHR under this method of interpretation was that
(1) the term “conception” is related to the moment of implantation inside the
woman’s body and, therefore, before that event the protection of the right to life
established in Article 4 of the Convention is not applicable; and (2) the expres-
sion “in general” entails exceptions to the rule.
2.1.2. Systematic and Historical Interpretation

The Court then proceeded to the systematic and historic methods of interpre-
tation, recalling that norms should be interpreted as part of a whole and their
meaning and scope must be established on the basis of the legal system to which
they belong. In the Artavia Murillo case, the relevant legal system is international
human rights law. Consequently, the IACtHR considered the approach of (1) the
Inter-American System, (2) the Universal System, (3) the European System, and
(4) the African System. The Court also explained that Article 32 of the Vienna
Convention on the Law of Treaties provides the travaux preparatoires of a treaty
may be used to confirm the result of the interpretation based in Article 31 (in ac-
cordance with the ordinary meaning of the terms), or when such interpretation
leads to an ambiguous or unclear result, or when the result is manifestly absurd
or unreasonable. Article 31.4 of the same Convention states that a term can be
afforded a special meaning if it appears that it was the intent of the parties. On
that basis, the Court deemed it pertinent to use the travaux preparatoires when
analyzing the approach in each system. The considerations of the Court with re-
spect to each system are summarized in the following paragraphs.
With respect to the Inter-American System, the travaux preparatoires of the
American Declaration of the Rights and Duties of Man do not offer a definitive
conclusion. The travaux preparatoires of the Convention show that the proposal
eliminating the expression “and, in general, from the moment of conception,” as
well as the proposal eliminating only “in general,” were unsuccessful. Both the
Declaration and the Convention refer to “every person” in numerous articles.
From the analysis of such articles, it is not feasible to hold that the embryo is
the holder and can exercise the rights that they enshrine. Therefore, the system-
atic and historic interpretation of the precedents of the Inter-American System
confirms that the status of “person” cannot be granted to the embryo.
Regarding the Universal System, the travaux preparatoires of the Universal
Declaration of Human Rights show that the drafters expressly rejected the pro-
posal of eliminating the term “born,” which aimed to exclude the unborn child
form the rights established in the Declaration. In that sense, the expression
“human being” used in the Declaration has not been understood to include the
unborn. The travaux preparatoires of Article 6 of the International Covenant on
Civil and Political Rights (establishing the right to life) indicate that the States
did not intend on giving to the unborn the treatment of a person nor granting
it the same level of protection accorded to children already born. Also, none of
the General Comments of the Human Rights Committee refer to the right to
life of the unborn child. In that sense, the Covenant does not entail an absolute
protection of the embryo, or prenatal life. The decisions and observations of the
Committee on the Elimination of Discrimination against Women—that is, the
authoritative interpreter of the Convention on the Elimination of All Forms of
Discrimination against Women—point to the argument that the principle of
equality and nondiscrimination requires that the rights of the pregnant woman
are privileged over the interest of protecting the life of her unborn child. Finally,
the Convention on the Rights of the Child defines “child” as “every human being
below the age of eighteen years, unless under the laws applicable to the child
majority is attained earlier.” The Preamble of this treaty noted the need to grant
protection to the child “before as well as after birth.” The travaux preparatoires
indicate that this phrase did not have the intention of extending the provisions
of the Convention to the unborn child. Indeed, there was a compromise for the
inclusion of said reference in the Preamble, but the travaux preparatoires clarify
that the Preamble would not define the interpretation of the Convention.
With respect to the European System, the provision establishing the right to
life in the European Convention on Human Rights states that “everyone’s right
to life shall be protected by law.” The former European Commission on Human
Rights and the European Court of Human Rights have interpreted this provision
in the sense that the protection of prenatal life is not absolute. This interpretation
has been made in the context of cases involving abortion and medical treatments
like IVF. Finally, in the African System, the provision of the Charter on Human
and People’s Rights establishes that “every human being shall be entitled to re-
spect for his life and for the integrity of his person.” The drafters of the Charter
expressly disregarded terminology that implied the protection of life from the
moment of conception.
Based on the foregoing, the IACtHR concluded that under the systematic
and historical interpretation none of the international treaties quoted by the
Constitutional Chamber and by Costa Rica in its defense can be used as the
basis for considering the embryo a person in terms set out in Article 4 of the
Convention. Neither the travaux preparatoires nor the systematic interpretation
of the Convention and the American Declaration lead to such a finding.
2.1.3. Evolutive Interpretation

The Court recalled that international treaties are living instruments and their
interpretation must be consistent with current living conditions, as per Article
29 of the Convention. The IACtHR underlined that an evolutive interpreta-
tion is particularly pertinent in this case, considering that by the moment the
Convention was signed IVF treatment did not exist. The Court analyzed two
topics in terms of an evolutive interpretation: (1) the legal status of the embryo,
and (2) the regulations and practices in comparative law in relation to IVF. The
Court gave consideration to both topics. With respect to the legal status of the
embryo, from the decisions of the European Court of Human Rights and the
Court of Justice of the European Union, as well as the Oviedo Convention for the
Protection of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine, the IACtHR concluded that the regulatory
tendencies of international law do not lead to the conclusion that the embryo
is accorded the same treatment as a person or that it is afforded a right to life.
Regarding the regulations and practices in comparative law, Costa Rica is the only
country that has a prohibition in place. Although there are not many regulations
on IVF, most States in the region permit its practice. That means that from the
perspective of the practice of most of the State parties, IVF treatment has been
understood to be permissible under the Convention. Such general practice is
linked to the principle of gradual and incremental (rather than absolute) protec-
tion of prenatal life. It is also linked to the conclusion that the embryo cannot be
understood as a person.
2.1.4. The Principle of the Most Favorable Interpretation, and the Object
and Purpose of the Treaty (Teleological Interpretation)
The Court recalled that the teleological interpretation consists of analyzing
the intention of the interpreted norms, its object and purpose, and, when per-
tinent, the aims of the regional system of protection. In the opinion of the
Court, the systematic and teleological interpretations are closely related. The
IACtHR considered that the position taken by Costa Rica denied the exist-
ence of other rights that could be subjected to disproportionate limitations as
a result of the absolute protection of the right to life. This position is contrary
to the protection of human rights, which constitute the purpose and object of
the treaty. Furthermore, the Court mentions that some judgments of constitu-
tional tribunals show that it is possible to strike an adequate balance between
the possible rights at stake, which is a relevant reference to interpret the sen-
tence “in general, from the moment of conception” as established in Article 4.1
of the Convention.13 In sum, the IACtHR considered that the most favorable in-
terpretation of such a provision (in line with its object and purpose) is to allow
an adequate balance between the rights and interests in tension. According to the
Court, this interpretation implies that it is not acceptable to argue for an absolute
protection of the embryo, which would have the effect of nullifying other pos-
sible rights involved.
2.1.5. Conclusion on the Interpretation of Article 4.1 of the Convention

Based on the foregoing, the Court reached the conclusion, expressed in
Paragraph 264 of the judgment that the different methods of interpretation
lead to consistent results. First, the embryo cannot be understood as a person
for the purposes of Article 4.1 of the Convention, and the scientific evidence
shows that “conception” in the meaning of the provision takes place from the
moment the embryo is implanted into the uterus, which means that before im-
plantation Article 4 of the Convention is not applicable. Moreover, the words “in
general” mean that the protection of the right to life established in the provision
13 The IACtHR here quotes the German Constitutional Court, the Constitutional Court of Spain,
the US Supreme Court, the Constitutional Court of Colombia, the Argentine Supreme Court of
Justice, and the Supreme Court of Justice of Mexico.
is not absolute, that such protection entails exceptions, and that it is “gradual and
incremental.”
2.2. The New Legal Standards Related to Reproductive Rights,

Including the Right to Reproductive Autonomy and Its
Permissible Limitations14
Artavia Murillo was the first case related to reproductive rights decided by the
IACtHR. The main legal issue was the determination on whether the prohibition
against IVF arbitrarily affected the rights to personal integrity (Article 5), per-
sonal liberty (Article 7), a private life (Article 11), and to a family (Article 17), as
well as the prohibition against discrimination (Article 1.1). The process was to
first assess whether there was an interference in the exercise of those rights and,
if so, to establish whether such interference was arbitrary or disproportionate.
In the analysis of the first step, the Court had the opportunity to set forth for the
first time a number of legal standards:
• The decision on whether or not to become a parent is part of the right to

a private life and the right to a family, protected by Articles 11 and 17 of
the Convention and includes the decision on whether or not to become
a mother or a father in the genetic or biological sense. This decision is
protected from the perspective of the individual and that of the couple.
• The right to personal liberty established in Article 7 of the Convention
should be read in a broad sense, that is, as the ability to do and not do all
that is lawfully permitted. This includes the possibility of all human beings
to self-determination and to choose freely the options and circumstances
that give meaning to their life, according to their own choices and beliefs, in
keeping with the law.
• The right to a private life enshrined in Article 11 of the Convention, and also
the right to personal liberty protected by Article 7 of the same treaty, is re-
lated to reproductive autonomy and to have access to reproductive services,
which includes the right to have access to the medical technology necessary
to exercise this right. For the first time, the IACtHR mentioned the exist-
ence of a right to “reproductive autonomy” protected by the Convention as
a derivation of the right to a private life and to personal liberty. Moreover,
the Court (also for the first time) referred to access to scientific progress as a
means of realizing the right to reproductive autonomy.
14 Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica (n. 12): the contents of the judgment
that are quoted under this subheading can be found in paras. 141–151 and 272–316.
• Reproductive autonomy is also related to healthcare. The lack of legal

safeguards that take reproductive health into consideration can result in a
serious impairment to the right to reproductive autonomy. Consequently,
there is a connection between personal autonomy, reproductive freedom,
and physical and mental integrity. The right to reproductive health entails
the rights of men and women to be informed about, be free to choose, and
have access to methods of fertility regulation that are safe, effective, easily
accessible, and acceptable.
After considerations on the substantive rights affected by the prohibition of

IVF, the Court recalled that such rights can be subjected to limitations, as long as
they are not arbitrary or abusive. According to the case law of the Court, in order
to be compatible with the Convention such limitations need to (1) be estab-
lished by law in the formal and material sense, (2) pursue a legitimate aim, and
(3) comply with the requirements of suitability, necessity, and proportionality
strictu sensu. In Artavia Murillo, the IACtHR stated that there was no need to
analyze each requirement, given that—as a consequence of the determinations
above with respect to the scope of the right to life—the absolute protection of the
life of the embryo has no basis under the Convention. The Court implied that the
State had not pursued a legitimate aim and considered that this fact was enough
to conclude the arbitrary and abusive nature of the limitation of rights and the
consequent international responsibility of the State.
The Court deemed it pertinent to explain the extent to which the rights at stake
in the case were sacrificed and that this outcome was not offset by the advantages
allegedly obtained via the absolute protection of the embryo. In other words, even
though the Court determined that the prohibition against the practice of IVF did
not comply with the basic requirement of pursuing a legitimate aim, it proceeded
to the analysis of the last requirement, the proportionality strictu sensu to carry
out a balancing exercise for pedagogic purposes. The Court emphasized that for
the limitation to be proportional strictu sensu in the specific case, it must satisfy
to a significant degree the protection of prenatal life without nullifying the rights
involved. The balancing was achieved according to three issues: (1) the degree of
impact to the rights at stake (grave, intermediate, or moderate); (2) the impor-
tance of the satisfaction of the interest pursued by the limitation; and (3) whether
the satisfaction of the latter justifies the limitation of the former.
With respect to the degree of interference in the exercise of the rights involved,
the Court affirmed that it was severe, particularly with respect to the couples
whose only option to have a biological child was through IVF. It mentioned,
among other aspects, the psychological impact derived from the lack of access to
an existing procedure that enabled their desired reproductive liberty. The Court
also took into account (in establishing the severity of the limitation) the fact that
infertility can be considered a disability, with distinct consequences related to

gender and class, in the sense that not all infertile couples have the economic
resources to travel to another country where IVF is permitted. Regarding the im-
portance of the satisfaction of the interest to protect embryonic life, the Court indi-
cated that the evidence indicates that embryonic loss takes place in the context of
both natural and IVF-assisted pregnancies. It considered it disproportionate to
claim an absolute protection of the embryo with respect to a risk that is not only
common but inherent to the natural process of conception.
Based on those findings, the Court reached the conclusion that the prohibi-
tion against IVF created a severe limitation to the rights to personal integrity,
personal liberty, privacy, reproductive autonomy, access to reproductive health
services, and to start a family. In contrast, the impact on the protection of the em-
bryo is very low, given that embryonic loss occurs in IVF and natural pregnancy.
Therefore, the Court affirmed that the protection of embryonic life had no basis
under the American Convention and the limitation of the rights at stake was
disproportionate.
2.3. Impact on the Decisions of Domestic Tribunals in Other

Countries of the Region
The impact of the Artavia Murillo case is not limited to Costa Rica. The judg-
ment not only established legal standards applicable to all the States parties to
the American Convention but those standards have also been used by domestic
tribunals in different countries.15
For example, on June 22, 2016, the Constitutional Court of Colombia is-
sued Judgment C 327-16 on the constitutionality of Article 90 of the Civil Code.
According to this provision, the legal existence of the person begins at the mo-
ment of birth. The Constitutional Court of Colombia, taking into consideration
the standards set forth in Artavia Murillo considered the scope that the IACtHR
gave to the right to life and its non-absolute character was consistent with the
provision of the Civil Code that had been challenged.16 Additionally, on August
28, 2017, the Constitutional Tribunal of Chile issued a decision on the constitu-
tionality of the statute that decriminalized abortion in three circumstances: when
the life of the mother is at risk, when a genetic illness with the fetus makes life
15 For a broader analysis on how Inter- American judgments impact the Latin-American re-
gion: Flávia Piovesan, “Ius Constitutionale Commune latinoamericano en derechos humanos e
impacto del Sistema Interamericano: rasgos, potencialidades y desafios,” in Armin von Bogdandy,
Héctor Fix Fierro, and Mariela Morales Antoniazzi (eds.), Ius Constitutionale Commune en América
Latina. Rasgos, potencialidades y desafíos (IIJ-UNAM-MPIL-IIDC 2014), 61–84.
16 Constitutional Court of Colombia, Judgment C-327/16, June 22, 2016, https://www.cortecon
stitucional.gov.co/RELATORIA/2016/C-327-16.htm (accessed January 7, 2022).

outside the uterus impossible, and when the pregnancy is the result of rape. In
its decision, the Constitutional Tribunal of Chile quoted the Artavia Murillo case
when establishing that the protection of life from the moment of conception was
not absolute.17
3. Nationwide and Structural Impact of the Reparations

Ordered by the Court18
The reparations ordered by the IACtHR were:
(i) To provide the victims with the psychological treatment they require,
immediately and free of charge, for up to four years. The psychological
treatment must be provided by State institutions and personnel special-
ized in attending to victims of events such as those that occurred in the
case at hand. When providing this treatment, the specific circumstances
and needs of each victim should also be considered, so that they are pro-
vided with family and individual treatment, as agreed with each of them,
after an individual assessment. The treatments must include the provi-
sion of medicines and, if appropriate, transportation and other expenses
that are directly related and strictly necessary.
(ii) As compensation for pecuniary damage, to pay the sum of USD 5,000 in
favor of the victims of the case who had to travel abroad to obtain access
to IVF treatment. As compensation for nonpecuniary damage, to pay
the sum of USD 20,000 to each victim.
(iii) To publish, within six months of notification of the judgment (1) the
official summary of the judgment prepared by the Court in the Official
Gazette, and (2) in a newspaper with a wide national circulation, as well
as (3) the full text of the judgment, available for one year, on an official
judiciary website.
(iv) To ensure that the prohibition against IVF is annulled as rapidly as pos-
sible so that those who wish to use this assisted reproductive technique
may do so without encountering any impediments to exercising the
rights that the judgment has found to have been violated.
(v) To regulate those aspects necessary for the implementation of IVF,
taking into account the principles established in the judgment. This rep-
aration includes the gradual establishment of systems for the inspection
17 Constitutional Tribunal of Chile, Judgment of August 28, 2017, https://www.csjn.gov.ar/dbre/
verNoticia.do?idNoticia=2166 (accessed January 4, 2022).

18 Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica (n. 12), paras. 318–373.
and quality control of qualified professionals and institutions that per-

form this type of assisted reproduction technique.
(vi) To gradually make IVF a part of healthcare infertility treatments and
programs of the Costa Rica Social Security Institute.
(vii) To implement permanent education and training programs and courses
on human rights, reproductive rights, and nondiscrimination for judi-
cial employees in all areas and at all echelons of the judiciary.
These seven reparations can be divided in two groups. In the first group, the
individual reparations in favor of the eighteen victims of the case, which include
the measures of rehabilitation (i), compensation (ii), and satisfaction (iii). In the
second group, the structural measures intended to revert the general situation of
unconventionality caused by the persistence of the prohibition and to avoid rep-
etition of the human rights violations that took place in the case (iv, v, vi, and vii).
After receiving and processing several written submissions from the parties during
the supervision on compliance procedure, the Court held a public hearing on com-
pliance on September 3, 2015,19 almost three years after the judgment on the merits
and reparations. On February 26, 2016, the Court issued its Order on compliance,
in which it declared that Costa Rica fully complied with the individual reparations
related to compensation and satisfaction. With respect to rehabilitation, the Court
considered that it should continue to supervise its compliance.20
Considering that the purpose of this chapter is to focus on the transforma-
tive impact of the case, I will comment on the situation of compliance (and the
concrete impact) of the second group of reparations, that is, the general struc-
tural measures described previously. The information will be presented in four
sections: training the judiciary in reproductive rights (section 3.1), the annul-
ment of the prohibition against IVF in Costa Rica (3.2), the regulation of IVF and
the implementation of systems of inspection and quality control regarding its
practice (3.3), and the inclusion of IVF in the State healthcare system (3.4).
3.1. Training the Judiciary in Reproductive Rights21
In compliance with this order, in January 2013 the Supreme Court of Justice of
Costa Rica issued a resolution establishing the obligation of the Escuela Judicial
19 It is relevant to mention here that the usual practice of the Court is to hold private hearings
on compliance. An important feature of the process of compliance with the judgment in the
Artavia Murillo case was the public character of this hearing, which took place under exceptional
circumstances.
20 Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica [2016], IACtHR, Monitoring
Compliance with Judgment.

21 Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica (n. 20): the contents of the Monitoring
Compliance Order quoted under this subheading can be found in paras. 58–65.
to implement permanent training programs mainly with respect to reproduc-

tive rights and nondiscrimination. The Escuela Judicial created a working group
with the participation of the Defensoría de los Habitantes de Costa Rica (the
Ombudsperson institution). The working group designed a forty-hour work-
shop named “Human, sexual and reproductive rights.” The Court analyzed four
aspects of the workshop, consistent with the parameters set forth in its judg-
ment: the contents of the courses, its implementation, the type of officials to
whom it was directed, and its permanence.
The contents of the workshop were designed to include “the develop-
ment of sexual and reproductive rights in light of human rights and gender
perspective[s]‌,” “assisted reproductive techniques,” the “description, legal
implications and scientific aspects of IVF as an assisted reproductive technique,”
the “reasoning used by the Court to establish that the prohibition of IVF is a
human rights violation,” and the “relevant case-law of the Court in the area of
sexual and reproductive rights.” The Court underlined the transversal approach
of these topics under “non-discrimination,” “gender perspective,” “prohibition of
violence,” “access to scientific progress,” and “access to justice.” With respect to
implementation, the Court noted that the workshop has happened three times
and that a fourth was already scheduled. And in relation to permanence, the
Court noted that the resolution of the Supreme Court of Justice stated that the
training must be permanent.
Regarding the type of officials, the Court pointed to the participation of
judges— of different levels of authority and areas of the judiciary— public
defenders, other Public Defence institution officials, prosecutors, other
Ministerio Público officials, and academic personnel of the Escuela Judicial. The
Court mentioned that training should be mandatory. However, the Court did
not establish this mandatory character as an obligation imposed by the judg-
ment, which would have helped it to attain a greater and broader impact. Based
on the foregoing, the Court concluded that Costa Rica fully complied with this
reparation.
3.2. The Annulment of the Prohibition of the Practice of IVF

in Costa Rica22
The annulment of the prohibition against IVF was the primary and basic
measure of nonrepetition established in the judgment. As a result of the different
possible paths available to ensure compliance with this measure and its obstacles,
the Court issued an unprecedented holding during the supervision of the
22 Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica (n. 20): the contents of the Monitoring
Compliance Order quoted under this subheading can be found in paras. 4–27.
compliance process. After the judgment of the Court (November 2012), three
possible mechanisms of compliance were opened at the domestic level: (1) the
approval of legislation by the Legislative Assembly (legislative branch), (2) the
adoption of a judicial decision by the Supreme Court of Justice leaving without
effect its 2000 decision, which established the prohibition in the first place (ju-
dicial branch), and (3) the decision of the constitutional actions (amparos) that
were filed in order to lift the prohibition, with erga omnes effects, by the Supreme
Court of Justice (judicial branch).
By the time of the public hearing on compliance three years after the judgment
(September 2015), the different draft laws pending at the Legislative Assembly
had accrued hundreds of objections presented by members of the Assembly that
needed to be processed and decided. The perspective supporting a prompt ap-
proval of legislation with the effect of lifting the prohibition was minimal. Also,
the contents of those draft laws were highly criticized by the parties before the
IACtHR during the compliance process—including the State of Costa Rica as a
whole—and by the Ombudsperson institution.
For its part, the Constitutional Chamber not only refused to show any will-
ingness to issue a decision, and thus leaving its previous judgment without ef-
fect, but rejected the constitutional actions (amparos) under arguments that did
not take into consideration two aspects of the order of the Court: that it had to
be fulfilled “as soon as possible” and that the lack of regulation could not be op-
posed as an obstacle to authorize the practice of IVF. Furthermore, the decisions
of the amparos included arguments reiterating the protection of the right to life
of embryos in clear contradiction to the reasoning of the IACtHR.
In these circumstances, the State expressed in the public hearing that com-
pliance with this fundamental order of the Court could be reached by means
of an Executive Decree (executive branch) that had already been drafted. The
purpose of the decree was to authorize the practice of IVF and to approve its
regulation. About a week after the public hearing, the State informed the Court
about the entry into force of Executive Decree No. 39210-MP-S: “Authorization
for the practice of In Vitro Fertilization and Embryo Transfer assisted reproduc-
tive technique.” However, a few days after the entry into force of the Decree it
was challenged before the Constitutional Chamber under the arguments that it
encompassed a violation of the “fundamental right to life of the unborn” and
that it was contrary to the constitutional mandate that fundamental rights could
only be regulated by the legislative branch. In February 2016, five months after
the public hearing on compliance, the Constitutional Chamber annulled the
Executive Decree.
Based on the sequence described in the previous paragraphs, the IACtHR
faced a challenging supervision of compliance process: State representatives
claimed that IVF had already been authorized by an Executive Decree, although
it was further annulled by the Supreme Court of Justice, and established that ful-
filling the order of the Court was the competence of the Legislative Assembly,
which after three years proved to be incapable of promptly doing so. In its para-
digmatic compliance Order of February 26, 2016, the Court had the opportunity
to consolidate important principles regarding compliance with its judgments. At
least three aspects deserve to be underlined here. First, States have the conven-
tional obligation of fully and promptly implementing the decisions of the Court,
and when such obligations are unfulfilled they incur in an international viola-
tion. Second, the conventional obligations of the State parties to the Convention
are mandatory for all the branches and institutions of the State, including the
highest tribunals, which must in good faith comply with international law. And
third, States cannot use domestic law arguments to avoid an international re-
sponsibility that has been already established.
After noting that in Costa Rica domestic law affirms that IACtHR decisions
can be directly executed, the Inter-American Court made the strong state-
ment that the Supreme Court of Justice had actively hindered compliance with
the Order authorizing IVF in Costa Rica. Specifically, it did so when omitting
to leave its own 2000 judgment without effect, then with the rejection of the
amparos and finally with the annulment of the Executive Decree that constituted
the only concrete and effective measure adopted by the State in order to comply
with the judgment. Based on the preceding, the IACtHR included the following
historic paragraph in its Order of Compliance:
By maintaining the prohibition to practice IVF in Costa Rica . . . the State has
unfulfilled its international obligations perpetuating a situation of violation of
rights . . . that could create grave and irreversible effects in those persons that
need access to the assisted reproductive technique. According to the judgment
of this Tribunal, the prohibition to practice IVF is manifestly incompatible with
the American Convention . . . and, therefore, it cannot produce legal effects nor
constitute an obstacle in the exercise of the rights protected by the Convention.
In consequence, in light of the American Convention and the reparation
ordered in the Judgment, it must be understood that IVF is authorized in Costa
Rica and, with immediate effects . . . without the need of a further legal state
act that acknowledges such possibility or regulated the implementation of the
technique. No sanction can be imposed due to the fact of practicing IVF.
With this decision, the Court not only consolidated the scope of its authority
in the context of the supervision on compliance processes but also faced a com-
plex challenge created by the different branches of the State involved. The inno-
vative manner in which the IACtHR approached this challenge had the direct
consequence of authorizing IVF in Costa Rica with its correlative structural and
nationwide impact. Between the Order of compliance of the Court and March
2019, 159 babies were born with the help of IVF treatment.
3.3. The Regulation of IVF and the Implementation of Systems

of Inspection and Quality Controls of Its Practice
The judgment of the Court included an order to regulate the practice of IVF
and to implement systems of inspection and quality controls. In the same con-
text described previously regarding the lack of compliance on the part of the
legislative and judicial branches, the executive branch complied with this obli-
gation via the same Decree No. 39210-MP-S, which served to lift the ban, au-
thorize IVF in Costa Rica, and regulate its practice. The Decree contains four
chapters: general provisions with respect to IVF; competent authorities in-
cluding the responsibilities and functions of the Ministry of Health, the Caja
Costarricense del Seguro Social, and the Association of Doctors and Surgeons
of Costa Rica in relation to the practice of IVF; the rights of the patients; and
the treatment of the gametes. In its compliance Order of February 26, 2016, the
Court noted that Decree No. 39210-MP-S was the only measure adopted by
Costa Rica to comply with the judgment and, therefore, determined that the
Decree must remain in force without harming the possibility that the legislative
body will issue subsequent regulations in conformity with the standards set forth
in the judgment.
According to the information available, by March 2019 Decree No. 39210-
MP-S was still in force and the executive branch issued two additional Decrees.
The first, Decree No. 39616-S of March 11, 2016, constitutes the technical norm
for healthcare facilities performing IVF and embryo transfer. The second,
Decree No. 39646-S of April 8, 2016, regulates the authorization of healthcare
facilities practicing IVF treatment.23 These three Decrees constitute the norma-
tive basis for the implementation of IVF in Costa Rica and for the inspection
procedures of the Ministry of Health. The other legislative proposals within the
Legislative Assembly were archived.24 In terms of the concrete impact of the reg-
ulation, by March 2019 two private healthcare facilities had been authorized to
practice IVF: Centro FECUNDAR Costa Rica—Panamá (authorized in May
2016) and Centro Fertilización In Vitro La California (authorized in February
23 Caso Artavia Murillo y otros (Fecundación in Vitro) y Caso Gómez Murillo y otros v. Costa Rica
[2019], IACtHR, Supervisión de Cumplimiento de Sentencias. Resolución de la Corte Interamericana

de Derechos Humanos.
24 Ibid.
2017).25 Furthermore, the Ministry of Health performed inspection visits and

determined that both facilities fully comply with the technical norms.
3.4. The Inclusion of IVF in the State Healthcare System
One of the most important and innovative reparations ordered by the Court
was the gradual inclusion of IVF in the public healthcare system. It is relevant
to briefly mention that this reparation is directly related to the conclusion of
the Court that the State breached the principle of nondiscrimination because of
the disproportionate impact of the IVF prohibition in the case of couples with
scarce economic resources. Artavia Murillo was the first case in the history of the
Court’s case law to declare a violation of Article 1.1 of the Convention using the
notion of indirect discrimination and disparate impact. It is worth underlining
that in this particular case, such an historic determination had its correlative
impact in the unprecedented reparation ordered by the Court.26 In compliance
with this reparation, in June 2019 the Unit of Reproductive Medicine of High
Complexity of the Caja Costarricense del Seguro Social, located in the Womens
Hospital Dr. Adolfo Carit, San José, started to operate. In its Compliance Order
of November 22, 2019, the Court declared that the State of Costa Rica had fully
complied with the judgment and archived the case.
Although the petition and case system were conceived as mechanisms to pro-
vide individual justice and reparation to victims of human rights violations that
had not received an adequate response at the domestic level, the Artavia Murillo
judgment serves as an example of the transformative impact that can result from
an individual case in the Inter-American Human Rights System. The transform-
ative impact in this particular case had multiple elements, and each deserves
individual consideration. Firstly, the case law of the Inter-American System devel-
oped in various directions:
• with respect to the scope of the protection of the right to life, after using
all the methods of interpretation in international law, the Court concluded
that (1) an embryo cannot be understood as a person for the purposes of
the Convention; (2) the protection of the right to life is not applicable prior
25 Ibid.
26 Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica (n. 12), paras. 285–303.
to conception; and (3) the words “in general” should be interpreted in the
sense that such protection is not absolute, entails exceptions, and is “gradual
and incremental.” A number of domestic tribunals in the region have used
these standards.
• with respect to reproductive rights and their permissible limitations, the
Court established that (1) the decision of whether or not to become a parent
(in both the biological and genetic sense) is protected by the Convention;
and (2) the rights to personal liberty and a private life read in conjunction
enshrine a right to reproductive autonomy that includes access to advances
in medical treatment.
Secondly, the reparations ordered by the Court had a nationwide impact

in Costa Rica. In addition to compensation and rehabilitation in favor of the
eighteen victims, the Court ordered structural changes intended to reverse the
general situation of unconventionality caused by the persistence of the prohi-
bition against IVF from the moment of the judgment and to avoid a repetition
of the human rights violations that took place in the case. Up to now, Costa
Rica has fully complied with its obligations: the training of the judiciary in re-
productive rights, the annulment of the prohibition against IVF in Costa Rica,
and the regulation of IVF and the implementation of systems of inspection and
quality control. Also, the State has adopted effective steps toward full compliance
with the inclusion of IVF in the public healthcare system. Between the Court’s
Compliance Order and March 2019, 159 babies were born with the assistance of
IVF treatment. Moreover, two private healthcare facilities have been authorized
to practice IVF treatment and in June 2019 the Unit of Reproductive Medicine of
High Complexity started to function.
And lastly, the situation that emerged with respect to the different possible
paths available to ensure compliance with the judgment led the Court to issue
an unprecedented holding during a supervision process, which can also be used in
other contexts in which State institutions create obstacles that impede the imple-
mentation of structural reparations. As a result of the proactive approach of the
Court, reparations were fully implemented.
II.6
The Impact beyond Compliance of the Case
of Azul Rojas Marin
Reflections around Strategic Litigation and the
By Chris Esdaile, Clara Sandoval, Alejandra Vicente, with
Renata Politi and Nataly Sanchez
1. Introduction
Violence against LGBTIQ+people is a persistent and often systematic practice

around the world.1 They are often punished for transgressing gender roles when
expressing non-normative sexual and gender identities.2 Violence takes different
forms, including arbitrary killings, death threats, beatings, corporal punishment,
arbitrary detention, sexual violence, verbal abuse, harassment, forced medical
procedures, and “conversion therapy” practices.3 In some instances, this violence
is legitimized by legislation or by the pronouncements of political leaders and other
authority figures. The COVID-19 pandemic saw a marked increase in LGBTIQ+
violence worldwide.4 Discrimination is often an underlying cause of this violence.
Equally, the investigation of such violence—when it takes place—is fre-
quently characterized by prejudice, stigma ,and disbelief of the victim’s story,
which discourages victims from coming forward and results in high rates of
underreporting5 and impunity.6 Survivors of such violence are therefore often
1 This chapter was written by three of the legal representatives of Azul during the litigation of
the case before the Inter-American System: Chris Esdaile (Legal Advisor at REDRESS), Alejandra
Vicente (Head of Legal at REDRESS), and Clara Sandoval (Professor, University of Essex/consultant
at REDRESS). Renata Politi (REDRESS) and Nataly Sanchez (University of Essex) provided invalu-
able research during the writing of this chapter.
2 IACHR, “Violence against LGBTI persons in The Americas,” OEA/Ser.L/V/II.Doc.36/15 Rev.2,
November 12, 2015, para. 25.

3 Report of the Independent Expert on protection against violence and discrimination based on
sexual orientation and gender identity A/HRC/38/43 (SOGI Report), May 11, 2018, paras. 27–28;
ACHPR Resolution 275, April 28, 2014.
4 Report on the impact of the COVID-19 pandemic on the human rights of LGBTIQ+persons, A/
75/258, July 28, 2020, para. 14.

5 IACHR (n. 2), para. 97.
6 IACHR (n. 2), para. 479.
Chris Esdaile, Clara Sandoval, Alejandra Vicente, with Renata Politi and Nataly Sanchez, The Impact beyond Compliance
of the Case of Azul Rojas Marin In: The Impact of the Inter-American Human Rights System. Edited by: Armin von
© Chris Esdaile, Clara Sandoval, Alejandra Vicente, with Renata Politi and Nataly Sanchez 2024.
DOI: 10.1093/oso/9780197744161.003.0017
304 Chris Esdaile et al.
unable to access justice and commonly suffer revictimization as a result of the

flaws in the investigation and any subsequent judicial processes.
Some of these forms of violence, along with a lack of diligent investigation,
were present in the case of Azul Rojas Marin and Other v. Peru. Azul is a trans-
gender woman, who at the time of the events identified as a gay man. She was
detained late at night on February 25, 2008, by members of the Peruvian po-
lice when she was walking home. Some of the officers knew who Azul was. They
insulted her and made derogatory remarks about her sexual orientation. She was
forcibly taken to a police station and kept there for almost six hours, although her
detention was not officially registered. During her detention, Azul was stripped
naked, beaten repeatedly, and anally raped with a police baton. The insults and
derogatory remarks about her sexual orientation continued throughout. She was
released early the next day.
Azul reported the crime to the authorities, but they did not believe her and did
not investigate properly. Different members of the justice system revictimized
Azul. During the reconstruction of the crime scene, Azul was forced to face her
perpetrators while they made fun of her. The prosecutor was present during
her medical examination, without Azul’s consent, and kept making comments
to influence the findings of the forensic doctor. Azul’s complaint was eventu-
ally dismissed. To date, no one has been held to account or punished for what
happened.
The case, culminating in the March 2020 judgment of the Inter-American
Court of Human Rights (IACtHR), was the first to be decided by a supra-
national body recognizing that torture can be carried out with the intent to
discriminate a person on the grounds of sexual orientation. This is an im-
portant step in a world where discrimination based on sexual orientation
and gender identity continues to take place daily. The significance of this
judgment merits careful reflection: What positive impacts could the case
have beyond the importance of the legal decision itself? Can a judgment like
this trigger structural changes and have impact in the life of Azul and many
others in her situation?
The argument that we put forward is that even if discrimination and violence
against LGBTIQ+people persists and compliance with the judgment remains
a challenge, the judgment itself, and the stakeholders engaged in the case, in-
cluding the Inter-American Commission on Human Rights (IACHR) and the
Inter-American Court, have triggered important dynamics. We argue that the
judgment advances the development of a world where LGBTIQ+people live free
of violence and are able to exercise their rights without discrimination. We un-
derstand impact in this context to be the ability of strategic litigation, and the
judgment, to unleash social dynamics capable of changing the structures that
enable violence, going beyond the specific forms of reparation ordered by the
The Case of Azul Rojas Marin 305
Court (even though we recognize that they too can become a vehicle for impact
and societal change).
Therefore, this chapter will look at the case of Azul, considering how the case
came about, what was achieved with it, but also, and importantly, what has been
the impact of the case since it was decided in March 2020. To this end, section
2 of the article explores the legal significance of the Azul judgment. Section 3
analyzes the development of the LGBTIQ+protection framework by the uni-
versal and regional human rights systems, as well as the cross-fertilization and
dialogue between these bodies. Section 4 proposes a methodology to assess the
impact of human rights litigation that can be used in the case of Azul and other
strategic litigation cases. Section 5 applies this methodology to the case of Azul,
highlighting the various forms of impact achieved since the judgment was is-
sued. Section 6 offers some reflections on the significance of the case of Azul
beyond compliance with the IACtHR judgment. The chapter concludes with
some reflections about what is needed to ensure that cases such as that of Azul
and others trigger changes to reduce the discrimination that—all too often—
surrounds the lives of LGBTIQ+people.
This chapter is written by some of the lawyers involved in the litigation of the
case, using primary and secondary data on the case and available information
that serves as evidence of the impact the case has had so far.
2. The Case of Azul Rojas Marín and Other v. Peru—Its

Legal Significance
REDRESS7 joined forces with two Peruvian civil society groups, the
Coordinadora Nacional de Derechos Humanos (CNDDHH)8 and PROMSEX,9
and filed a complaint before the IACHR in April 2009 to assist Azul in obtaining
justice. The case raised significant issues of law and practice that provided a
unique opportunity to advance protection of the rights of LGBTIQ+persons,
particularly in relation to the prohibition of discrimination on sexual orien-
tation grounds, the prohibition of torture, the obligation to investigate with
due diligence, and the right to reparations. The case lasted more than a decade
7 REDRESS is a UK-based NGO which delivers justice and reparation for survivors of torture,
challenges impunity for perpetrators, and advocates for legal and policy reforms to combat tor-
ture: <https://redress.org> (accessed October 22, 2023).
8 The National Coordinator for Human Rights is a coalition of civil-society organisms that work
toward the defense, promotion and education of human rights in Peru: <http://derechoshumanos.
pe> (accessed October 22, 2023).
9 PROMSEX is a Peruvian feminist NGO that, through political advocacy, knowledge genera-
tion and partnerships, helps people make decisions about their sexuality and reproduction with au-
tonomy, dignity, justice, and equality: <https://promsex.org/> (accessed October 22, 2023).
before the Inter-American System. The IACHR decided the merits of the case
in February 2018.10 Given that Peru did not comply with the recommendations
made by the IACHR, the case was referred to the Inter-American Court in
August 2018. The Commission noted this would be the first case before the
IACtHR dealing with violence against LGBTIQ+persons.11 The Court held a
hearing in August 201912 and decided the case in March 2020,13 making signifi-
cant findings of fact and law.
The Court declared the State of Peru internationally responsible for the vi-
olation of the right not to be subjected to torture, and the rights to personal
liberty, personal integrity, privacy, judicial guarantees and the judicial protec-
tion of Azul, all in connection with the prohibition of discrimination. Peru was
also found to be responsible for the violation of the right to personal integrity
of Azul’s mother, Juana Rosa Tanta Marín, who died in 2017, and who suffered
greatly due to what happened to Azul. The key issues decided by the Court are
summarized in the remainder of this section.
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
Peru argued that the detention of Azul took place to carry out an identity check
as she did not have her ID with her.14 Peru disputed the length of the detention.
However, the Court found that the detention was not carried out in accordance
with domestic law, that one of the officers who detained Azul knew who she was,
and that derogatory comments about her sexual orientation were made. The
Court, following the views of the UN Working Group on Arbitrary Detention15
and those of the expert Maria Mercedes Gómez,16 considered that the lack of
a legal basis for Azul’s detention and the existence of discriminatory elements,
10 Azul Rojas Marín et al. v. Peru [2018] Case 12.982, IACHR, Report No. 24/18.
11 Letter from IACHR to Pablo Saavedra Alessandri (Secretary of the IACtHR) (August 22,
2018): <https://www.oas.org/es/cidh/decisiones/corte/2018/12982NdeREs.pdf> (accessed October
22, 2023).
12 Public Hearing in the Case of Rojas Marín and another v. Perú (August 27, 2019): <https://
vimeo.com/347339620> (accessed October 22, 2023).

13 Case of Azul Rojas Marín et al. v. Peru (hereinafter Azul) [2020] IACtHR, Ser. C No. 402.
15 UNGA, “Report of the Working Group on Arbitrary Detention” (July 19, 2017) UN Doc. A/
HRC/36/37, [48].
16 Assistant professor of Criminology at Saint Mary’s University in Halifax, Canada; called as an
expert by the IACHR.

together, inferred that she was detained based on her sexual orientation, which
automatically rendered the arrest arbitrary.17
2.2. The Court Found that the Purposive Element of the

Definition of Torture Incorporates Discrimination Based
on Sexual Orientation and Gender Identity
Peru alleged that it was not proven that sexual violence took place, because the
domestic courts were unable to establish it due to the lack of direct evidence of
the crime.18 It also argued that torture did not take place because two elements of
the crime were missing: the intent and the purpose.
The IACtHR concluded Azul was anally raped while in detention. In con-
trast to the domestic courts’ approach, the IACtHR reached this conclusion by
assessing various pieces of evidence, including Azul’s statements, medical exam-
ination reports, and the forensic analysis of the clothes she wore at the time of the
events.19 The IACtHR considered that what happened to Azul amounted to tor-
ture as the intentionality, severity, and purposive elements were met.20 Further,
the Court expanded the list of specific purposes by which sexual violence can
constitute torture, to include the motive of discrimination based on the sexual
orientation of the victim. Following the expert opinions of Juan Méndez21 and
Maria Mercedes Gómez, the Court found that sexual violence that involves anal
rape, especially when carried out with a tool of authority such as a police baton,
all while derogatory remarks were made, shows that the specific motive of the
crime was to discriminate against Azul.22
The Court went further to label it as a hate crime given that it was the result
of prejudice and stated that the crime not only breached Azul’s rights but also
the freedom and dignity of the whole LGBTIQ+community.23 This finding
constitutes a major development under international law as this is the first case
decided by an international tribunal to conclude that torture can take place with
the specific purpose of discriminating against a person because of their sexual
orientation.
17 IACtHR, Azul (n. 13), paras. 127–128.

20 Ibid., paras. 161–163.
21 Professor of Human Rights Law, American University, Washington School of Law; former UN
Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
called as an expert by Azul’s legal representatives.
2.3. The Court Found that States Have a Duty to Investigate

Violence Motivated by Discrimination against Members of the
LGBTIQ+ Community
Peru argued that as soon as it learned about Azul’s allegations, it opened an in-
vestigation that was carried out with due diligence,24 although this was disputed
by Azul’s legal representatives. Given the prevailing levels of impunity for such
crimes in the Americas, the IACtHR made a careful assessment of the facts in
this regard.
The IACtHR reiterated its case law regarding due diligence in cases of sexual
violence,25 but extended its application to violence against LGBTIQ+persons,
adding new dimensions to its existing standards. Notably, the Court found
that when investigating violence States have a duty to take all necessary steps
to clarify if it was motivated by prejudice and discrimination.26 The Court said
that this implies that the State should collect all the required evidence, provide
full reasons for its decisions, and decide in an impartial and objective manner.
The authorities should not ignore any facts that could establish that the violence
was motivated by discrimination.27 In the case of Azul, the Peruvian authorities
never considered discrimination as a motivating factor and did not pursue this
line of investigation. This finding by the Court demonstrates its ongoing dia-
logue with the European Court of Human Rights (ECtHR), as it took note of the
ECtHR’s decision in Identoba (which set a similar precedent but in relation to ill
treatment).28
The Court also noted that investigations should avoid the use of stereotypes.
In this case, local prosecutors undermined the declaration of Azul by stating,
“but if you’re a homosexual, how am I going to believe you?,”29 and by inquiring
about her past sex-life. The Court noted that such stereotypical lines of inquiry
should not be used in cases of sexual violence, including when that violence is
committed against members of the LGBTIQ+community.30 This is another im-
portant contribution of the Court to the protection of LGBTIQ+people under
international law, which does not exist under ECtHR jurisprudence.

25 Case of Fernández Ortega et al. v. Mexico [2010] IACtHR, Ser. C No. 215.
26 IACtHR, Azul (n. 13), para. 196, citing Identoba and Others v. Georgia (hereinafter Identoba)
[2014] ECtHR, App. No. 73235/12, para. 67.

27 IACtHR, Azul (n. 13), para. 196.
28 ECtHR, Identoba (n. 26), para. 67. Note that, in contrast to the ECtHR, the IACtHR does not
make any reference to the difficulty of the task or the fact that it is, in the views of the ECtHR, “an ob-
ligation of best endeavours, and is not absolute.”
30 Ibid para. 202.
2.4. The Court Tackled Structural Discrimination

through Reparations
The IACtHR ordered holistic forms of reparation for both individual as well as
societal harm. From an individual perspective, the Court recognized Azul and
her mother as victims in the case and awarded them compensation for pecuniary
and nonpecuniary damage31 and ordered that the State “facilitate and continue”
the investigation into the facts, to identify, prosecute, and punish those respon-
sible for the sexual violence and torture which Azul suffered.32 The Court also
ordered that there should be a public ceremony, where senior government fig-
ures recognize the State’s international responsibility.33 It also required the State
to provide rehabilitation to Azul for physical and psychological harm, including
access to medicines and transport expenses necessary to undergo treatment.34
But what is most remarkable about this judgment, and which Peru chal-
lenged during the litigation, are the measures requested by Azul and awarded
by the Court to address structural discrimination as a cause of hate crimes. The
Court ordered Peru to adopt a protocol for the effective criminal investiga-
tion of violence against members of the LGBTIQ+community.35 The protocol
shall be binding under domestic law, instruct State representatives to abstain
from applying stereotypes, and include due diligence standards developed by
the Court in the judgment. The Court instructed the State to provide training
to members of the justice system and the police on LGBTIQ+rights and dili-
gent investigations.36 Additionally, Peru was ordered to implement a data col-
lection system to officially register all cases of violence against members of the
LGBTIQ+community, including disaggregated information.37
Finally, the Court ordered Peru to eliminate from its local/regional security
plans the reference to the “eradication of homosexuals and transvestites” since
this exacerbates discrimination against members of the LGBTIQ+community
and “promotes the possibility of violence based on prejudice.”38
Unfortunately, as of October 2023, more than a three and a half years after
the judgment was handed down, Peru has fully complied with very few of the
reparatory measures ordered by the Court. None of the deadlines imposed by the
Court have been met. It is in this context that questions about impact become so
crucial, as will be noted in the forthcoming sections. In any case, to fully address
31 Ibid., paras. 260, 267.

33 Ibid., paras. 233–234.
35 Ibid., paras. 242–244.
36 Ibid., paras. 248–249.
the impact of the judgment, it is essential to consider the case of Azul as part of
international efforts, at various levels, to ensure the protection of LGBTIQ+per-
sons. The next section of this chapter turns to this point, aiming to establish the
significance of the case of Azul in the context of international developments in
this area.
3. The International Protection of LGBTIQ+Rights

before the Case of Azul
Successful litigation on LGBTIQ+violence in Latin America, the region with the

highest rate of Sexual Orientation and Gender Identity (SOGI)-based violence,39
has only been possible as a result of the significant work undertaken by civil so-
ciety organizations to draw the attention of regional and international political
and human rights bodies to the issue.40 For instance, the work of the Coalition
of LGBTIQ+Organizations of Latin America and the Caribbean before the
Organization of American States (OAS) laid the foundations for the “historic
resolution on human rights, sexual orientation and gender identity in 2008.”41
This then encouraged the IACHR to adopt a strategy to deal with SOGI issues,
after which the first cases of litigation started to emerge.42
Strategies adopted by LGBTIQ+movements worldwide include public ed-
ucation, documenting human rights violations, lobbying, and legislative
campaigns.43 These have been essential tools used before, during, and after
any litigation, without which the litigation will lack the secure footing, or the
follow-up required, to achieve the desired impact. At the same time, LGBTIQ+
movements have stressed that their demands for protection under the human
rights framework are not new, but rather that well-established principles, such as
the right to freedom from torture and ill treatment, should be applied irrespec-
tive of sexual orientation and gender.44
39 Monica Malta et al., “Sexual and gender minorities rights in Latin America and the Caribbean: a
multi-country evaluation” [2019] 19 BMC International Health Human Rights 1, 3.

40 Victor Madrigal, “Protecting LGBT+Persons in Africa from Torture: Challenges, Opportunities
and Comparative Experiences,” REDRESS [Video]: <https:// youtu.be/ UFe6 g1Es l8Y> (accessed
November 30, 2021).
41 IACHR (n. 2), para. 3.
42 SOGI Report (n. 3).
43 Ryan Thoreson, “An International LGBT Movement” (October 27, 2020) Oxford Research
Encyclopedia of Politics: <https://oxfordre.com/politics/view/10.1093/acrefore/978019

0228637.001.0001/acrefore-9780190228637-e-1214> (accessed October 22, 2023); Amnesty
International, “Speaking Out, Advocacy experiences and tools of LGBTI activists in sub-Saharan
Africa” (2014).
44 Anthony J. Langlois, “Making LGBT Rights into Human Rights,” in Michael J. Bosia et al. (eds.),
The Oxford Handbook of Global LGBT and Sexual Diversity Politics (Oxford University Press 2020).
Positive developments in the Americas are not isolated. Cases like that of Azul
have been possible partly because a conducive international human rights pro-
tection environment has enabled this type of litigation. Important litigation in
Europe and the United Nations helped to pave the way for the case of Azul.
3.1. The European System
Initially, the ECtHR and former European Commission appeared reluctant

to deal with cases of SOGI-based violence, having ruled inadmissible the five
applications filed between 1959 and 1962 under Article 3 of the European
Convention on Human Rights (ECHR—prohibition of torture and ill treatment),
which challenged the criminalization of sexual acts between men.45 However, in
Dudgeon v. United Kingdom in 1980, the ECtHR found that criminalizing con-
sensual same-sex relations violates the right to respect for private life (Article 8
ECHR).46 In the 1990s, there was successful litigation on discrimination against
sexual minorities under Article 8 ECHR,47 and in 1999, the ECtHR ruled that
discrimination on the grounds of sexual orientation was covered by the prohibi-
tion of discrimination under Article 14 ECHR.48
It was not until the late 1990s, in Smith and Grady v. the United Kingdom, that
the ECtHR took its first step toward recognizing discriminatory torture or ill
treatment of LGBTIQ+persons.49 Despite concluding that Smith’s humiliating
interrogation by police officers—with intimate questions about her sexual ori-
entation and partners—did not amount to torture or ill treatment, the ECtHR
noted that it would not rule out the possibility that treatment “grounded upon a
predisposed bias on the part of a heterosexual majority against a homosexual mi-
nority” could fall within the scope of Article 3 ECHR.50 Subsequently, the ECtHR
has increasingly approached the issue of LGBTIQ+violence within the frame-
work of the prohibition of torture and ill treatment. For example, in X v. Turkey
in 2012, the ECtHR found a State in breach of its obligations under Article 3
45 Paul J. Johnson and Silvia Falcetta, “Sexual Orientation Discrimination and Article 3 of the
European Convention on Human Rights: Developing the protection of sexual minorities” [2018] 43
ELR 167, 168.
46 Dudgeon v. the United Kingdom [1980] Commission Report, App. 7525/76.
47 See, e.g., Norris v. Ireland App. 10581 (1988); Modinos v. Cyprus App. 259 (1993). See also
Laurence R. Helfer and Erik Voeten, “International Courts as Agents of Legal Change: Evidence from
LGBT Rights in Europe” (2014) 68 International Organization 77, 86
48 Mouta v. Portugal App. 33290 (December 21, 1999); Council of Europe, “Discrimination
on grounds of sexual orientation and gender identity” (2nd ed., Council of Europe Publishing,
September 2011), 37.
49 Its earlier reluctance to explore this issue is shown in, for example, S v. the Federal Republic of
Germany App. 10686 (Commission decision, October 5, 1984).

50 Smith and Grady v. the United Kingdom Apps. 33985/96 and 33986/96 (ECtHR, December 27,
1999). See also Stasi v. France App. 25001/07 (ECtHR, January 20, 2012).
ECHR due to discrimination based on sexual orientation, when the applicant

had been detained in conditions which caused him mental and physical suffering
and stripped him of his dignity.51
Subsequently, in Identoba and others v. Georgia52 and MC and AC v. Romania,53
both of which were brought by victims of attacks on activists during (or after)
LGBTIQ+demonstrations, the ECtHR further developed its views on States’
obligations to prevent and investigate LGBTIQ+violence. The decisions made
clear that, in addition to the nature and context of the insults, the general hos-
tile environment toward LGBTIQ+persons is a relevant factor in the examina-
tion of the discriminatory purpose behind the attacks. The Court concluded that
authorities had failed to protect adequately the victims, since, in light of the neg-
ative attitudes toward LGBTIQ+persons, the “authorities knew or ought to have
known of the risks associated with any public event concerning that vulnerable
community, and were consequently under an obligation to provide heightened
State protection.”54 The ECtHR also ruled that authorities have a duty to inves-
tigate effectively violent incidents against LGBTIQ+persons, which includes
acting promptly and taking all reasonable measures to “unmask possible dis-
criminatory motives.”55 Such an obligation is not absolute but requires the use of
“best endeavours.”
These standards have been confirmed by the ECtHR in more recent rulings,
including the January 2021 judgment in Aghdgomelashvili and Japaridze
v. Georgia, issued almost a year after the judgment of Azul, which marked the
first time the ECtHR found a substantive violation of Article 3 ECHR in a case of
LGBTIQ+ violence.56
3.2. The UN System
As in the European System, progress on the protection of LGBTIQ+persons

before UN bodies can be identified from the 1990s onward. In 1994, in Toonen
v. Australia, the Human Rights Committee (HRC) recognized sexual orientation
as a protected ground under the category of “sex” of the International Covenant
51 X v. Turkey App. 14626/09 (ECtHR, October 9, 2012). Jurist Legal News & Commentary, Paul
J Johnson, “The Impact of X v. Turkey: Homosexuality and the ECHR” (October 9, 2012): <https://
www.jurist.org/commentary/2012/10/paul-johnson-echr-turkey/> (accessed October 22, 2023).
52 ECtHR, Identoba (n. 26).
53 MC and AC v. Romania [2016] ECtHR, App. 12060/12.
54 ECtHR, Identoba (n. 26), para. 72.
55 Ibid., para. 67; MC and AC v. Romania (n. 53), para. 113.
56 Aghdomelashvili and Japaridze v. Georgia (hereinafter Aghdomelashvili and Japaridze) [2021]
ECtHR, App. 7224/11. See also Sabalić v. Croatia [2021] ECtHR, App. 50231/13, Association ACCEPT
and Others v. Romania [2021] ECtHR, App. 19237/16, Beizarras and Leivickas v. Lithuania [2020]
ECtHR, App. 41288/15, and Maksim Grigoryevich Lapunov v. Russia [2023] ECtHR, App. 28834/19.
on Civil and Political Rights (ICCPR). It further established that “adult con-
sensual sexual activity in private is covered by the concept of privacy [under
Article 17],” hence criminalization of same-sex sexual acts between consenting
adults constitutes an unreasonable interference by the State on the rights of
individuals.57
Later, other UN treaty bodies followed the trend of treating sexual orientation
as a protected category under various treaty provisions. In General Comments
14,58 15,59 18,60 and 20,61 the Committee on Economic, Social and Cultural
Rights (CESCR) specified that the prohibition of discrimination based on sexual
orientation or gender identity is covered by the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
Although UN bodies have developed doctrine on the discriminatory pur-
pose of certain acts of torture, they have not gone as far as the ECtHR on setting
standards on LGBTIQ+violence. In Cacho Ribeiro v. Mexico, the HRC found that
the torture inflicted on the victim by police officers—including sexual violence—
had a discriminatory purpose based on the sex of the victim. As in ECtHR’s
cases and in Azul, this assessment took into account “the nature of the sexual
comments made” by the perpetrators.62 However, in D.C. and D.E. v. Georgia,
the Committee against Torture (CAT), whilst referring to “the risks that arise for
prisoners who raise allegations of sexual assault, as they are likely to be labelled
as homosexuals and exposed to a high risk of abuse by other prisoners,” did not
address the discriminatory motive behind such increased risks.63
The CAT has also refrained from setting standards on the duty to investigate
with due diligence acts of violence potentially motivated by discrimination on
grounds of sexual orientation. In Mamatkarim Ernazarov v. Kyrgyzstan, de-
cided in 2011, while the CAT referred to the risks faced by the victim—who had
been killed in prison following his conviction of a sexual offence against another
man—it did not take into account these risks as a factor that should have led to
an investigation into the discriminatory purpose behind such violence.64 Future
decisions of the CAT, to be adopted after Azul’s judgment, could develop im-
portant standards in relation to nondiscrimination, torture, and due diligence
investigations in such cases.
57 Toonen v. Australia [1994] HRC Communication No. 488/1992 [8.7], [8.2], [8.5].
58 CESCR, “General Comment 14” [August 11, 2000] E/C.12/2000/4 [18].
59 CESCR, “General Comment 15” [January 20, 2003] E/C.12/2002/11 [13].
60 CESCR, “General Comment 18” [February 6, 2006] E/C.12/GC/18 [12].
61 CESCR, “General Comment 20” [July 2, 2009] E/C.12/GC/20 [32].
62 Lydia Cacho Ribeiro v. Mexico [2018] CCPR Communication No. CCPR/C/123/D/2767/2016
[10.3], [3.7].
63 D.C. and D.E. v. Georgia [2017] CAT Communication No. CAT/C/60/D/573/2013 [5.3].
64 Mamatkarim Ernazarov v. Kyrgyzstan [2011] CAT Communication No. 2054/2011 [9.6].
3.3. The African System
Despite the prevalence of de jure and de facto discrimination of LGBTIQ+people

in Africa, it is very telling that the African Human Rights System has not yet dealt
with cases concerning equality or discrimination based on sexual orientation
and gender identity. As of October 2023, there has not been litigation of cases of
SOGI-based violence before the African Commission on Human and Peoples’
Rights (ACHPR). The only case relating to the rights of LGBTIQ+persons ever
brought to the ACHPR was a communication filed back in 1994, which chal-
lenged the criminalization of sexual conduct between men and the legal status
of homosexuals in Zimbabwe.65 However, the ACHPR did not have the opportu-
nity to express its view on the matter as the complainant withdrew the case.
Despite the lack of litigation, the ACHPR’s Resolution No. 275 of 2014
condemns SOGI-based violence and, although not binding on member States,
calls upon them to introduce effective legislative and judicial mechanisms to
prevent and respond to such violence. Notwithstanding the significance of
Resolution 275, the subsequent withdrawal of the observer status of the organi-
zation Coalition of African Lesbians before the African Union66 is a sign of con-
tinued tension on LGBTIQ+rights in Africa and reinforces the need to develop a
strategy to engage African human rights bodies in the fight against SOGI-based
violence.67
3.4. The Inter-American System at the Forefront
Although its jurisprudence protecting LGBTIQ+persons started to develop

slightly later than in Europe, the Inter-American Human Rights System has now
gone further than the other supranational mechanisms in terms of protecting
LGBTIQ+persons from violence, placing the Americas at the forefront of these
efforts. Since 2003, the IACtHR has highlighted the essential role that the prin-
ciple of equality and nondiscrimination plays into effectively safeguarding the
rights protected both under international and domestic law.68 Nonetheless it
was not until 2012, in Atala Riffo and daughters v. Chile, that the IACtHR ruled
65 William Courson v. Zimbabwe [2000] Communication No. 136/94 (8th Annual Activity Report
of the ACHPR).
66 African Court on Human and Peoples’ Rights, Advisory Opinion No. 002/2015, September
28, 2017.
67 Sibongile Ndashe and Ayodele Sogunro, “Protecting LGBT+Persons in Africa from
Torture: Challenges, Opportunities and Comparative Experiences,” REDRESS [Video]: <https://

youtu.be/UFe6g1Esl8Y> (accessed November 30, 2021).
68 IACtHR, “Juridical Condition and Rights of Undocumented Migrants,” Advisory Opinion 18,
September 17, 2003, Ser. A No. 18, 88.

that discrimination on the basis of sexual orientation and gender identity was
prohibited under Article 1(1) of the American Convention on Human Rights
(ACHR).69
As in Europe, the protection of sexual minorities from discrimination was in-
itially approached by the IACtHR as an aspect of private and family life (Article
11 ACHR). In Atala Riffo and daughters v. Chile and Ramírez Escobar et al.
v. Guatemala, the IACtHR ruled on custodial rights of LGBTIQ+parents and
caregivers;70 Duque v. Colombia tackled the right to equal access to social benefits
for same-sex couples;71 while Flor Freire v. Ecuador dealt with the discrimina-
tory discharge from military service based on the perception of nonconforming
sexual orientation.72
Whilst the question of SOGI-based violence remained unaddressed by the
IACtHR until its decision in Azul in 2020,73 other bodies of the Inter-American
Human Rights’ System had earlier recognized the high rates of violence against
LGBTIQ+populations in the Americas and, between 2008 and 2017, the OAS
General Assembly adopted nine resolutions condemning violence against
LGBTIQ+people and calling on States to prevent and investigate these violent
acts and ensure victims’ right to judicial redress.74
Additionally, in 2015, the IACHR published its report on Violence against
LGBTI persons, which documented a context of systemic violence based on
SOGI prejudice in the Americas and established regional standards on how OAS
States should prevent, investigate, and punish these human rights violations.
This standard-setting process paved the way for the IACtHR to assess the case of
Azul in terms of due diligence in investigations concerning hate crimes against
LGBTIQ+persons. For instance, the report puts together a list of nonexhaustive
elements that serve to identify when a crime is motivated by SOGI prejudice,75
and these elements were pivotal to determine the discriminatory intent of the
torture suffered by Azul.76 It also demonstrates the catalyzing role of suprana-
tional human rights bodies, developing not only new jurisprudence but also
elements that trigger social change. A diverse group of actors in the Americas,
69 Atala Riffo and daughters v. Chile [2012] IACtHR; Ser. C No. 239, para. 91.
70 Ibid.; Ramírez Escobar et al. v. Guatemala [2018] IACtHR, Ser. C No. 351.
71 Duque v. Colombia [2016] IACtHR, Ser. C No. 310.
72 Flor Freire v. Ecuador [2016] IACtHR, Ser. C No. 315.
73 The IACtHR briefly acknowledged the issue of LGBTIQ+violence in IACtHR, “Gender identity,
and equality and non-discrimination of same-sex couples,” Advisory Opinion OC-24, November
25, 2017, Ser. A No. 22, paras. 33–35, which concerned the obligations of States’ to legally recognize
same-sex couples’ and transgender people accordingly with their self-perceived gender expression.
However, the opinion does not address specific State obligations regarding SOGI-based violence.
74 OAS, General Assembly AG/RES. 2908 (XLVII-O/17); AG/RES. 2887 (XLVI-O/16); AG/RES.
2863 (XLIV-O/14); AG/RES. 2807 (XLIII-O/13); AG/RES. 2721 (XLII-O/12); AG/RES. 2653 (XLI-
O/11); AG/RES. 2600 (XL-O/10); AG/RES. 2504 (XXXIX-O/09); AG/RES. 2435 (XXXVIII-O/08).
75 IACHR (n. 2), 504.
including the IACHR, victims, and civil society, paved the way for the Court to
decide on the case of Azul the way it did.
The path to Azul was, therefore, shaped by an ongoing dialogue between the
IACtHR and other OAS bodies. The developing understanding of the links be-
tween gender and SOGI-based prejudice allowed the Court in Azul to rely on its
rich jurisprudence on gender-based violence as a lens through which to under-
stand the structural nature of the discrimination. Recently, this was reaffirmed
in Vicky Hernández v. Honduras,77 the second case decided by the IACtHR on
LGBTIQ+violence—concerning the killing of a trans woman—which already
showcases the promise of Azul for the Inter-American System and its leading
role on this issue.
3.5. Cross-Fertilization across Systems
The first cases relating to SOGI before the ECtHR, the HRC, and the IACtHR
were framed in terms of privacy and respect for family life. However, the focus
shifted. The ECtHR started issuing rulings about the discriminatory nature of
SOGI-based violence, whilst the OAS started recognizing the issue through its
resolutions condemning acts of violence against LGBTIQ+persons. Then, a
year after the ACHPR issued Resolution No. 275, in 2015 the IACHR published
its report on Violence against LGBTI Persons and held a joint dialogue with the
ACHPR and the UN mechanisms to share recent developments regarding vio-
lence against LGBTIQ+people.78
This cross-fertilization across systems was one key factor which made the
Azul judgment possible. The findings of the IACtHR relied on some of the
ECtHR’s standards concerning due process when investigating acts of violence
against LGBTIQ+persons, as well as the developments regarding discrimina-
tory grounds for arbitrary detention put forward by the UN Working Group on
Arbitrary Detention. Nonetheless, the IACtHR went further by assessing SOGI-
based discrimination as a purposive element of torture for the first time and
addressing, with a comprehensive set of reparations, the various root causes of
LGBTIQ+violence and impunity.
77 Vicky Hernández and others v. Honduras [2021] IACtHR, Ser. C No. 422.
78 ACHPR, “Ending violence and other human rights violations based on sexual orientation
and gender identity: A joint dialogue of the African Commission on Human and Peoples’ Rights,
Inter-
American Commission on Human Rights and United Nations,” University of Pretoria
(2016): <https://www.ohchr.org/Documents/Issues/Discrimination/Endingviolence_ACHPR_IA
CHR_UN_SOGI_dialogue_EN.pdf> (accessed October 22, 2023).
Having explored the milestones that led to the IACtHR decision in the case of
Azul, the following section proposes a methodology to assess the impact of the
judgment in this and other human rights strategic litigation cases.
4. Criteria to Assess the Impact of Strategic Litigation
Strategic litigation is an effective tool to achieve several goals, including justice

and reparation to the direct victims as well as policy and legal reform, and so-
cial change. Yet evaluating the impact of strategic litigation is not always an easy
task. Victims and those assisting them might have different expectations on the
impact of litigation, and therefore might measure it differently. For example, di-
rect victims of gender-and sexual-based violence may be seeking reparations
focused on satisfaction (for example, the prosecution of those responsible),
while those assisting them may be focused on legislative impact. In some cases,
it can also be challenging to identify a causal relationship between a specific
case and any possible outcomes, in part because strategic litigation is usually a
lengthy process. In the procedural lifetime of a case, political elections may have
occurred, legal reforms may have been adopted, social norms may have changed,
or other factors could have resulted in improved protection for human rights, in-
dependently of the litigation.79
The impact also transcends strategic litigation, and the case of Azul is a good
example of this. The case was possible thanks to an ecosystem of actors that in-
cluded the Inter-American System, both the IACHR and the Court, which were
also key agents of social change. So reflecting on impact not only requires looking
at strategic litigation but also at the magnifying role played by key actors that
“work to improve human rights conditions and decrease the likelihood of the
repetition of abuses, while also providing satisfactory recourse to the victims.”80
Given the diverse forms of impact and actors involved in strategic litigation,
it is possible to identify a variety of factors or criteria to evaluate the impact of
a case, both as a case-planning exercise prior to the instigation of a case, as well
as after the litigation has ended. REDRESS, one of the co-litigant organizations
behind the case of Azul, has developed an impact matrix that considers various
criteria to measure the impact of strategic litigation. While there are competing
or complementary views on measuring impact, the criteria suggested here to
79 See Open Society Justice Initiative, “Strategic Litigation Impacts: Insights from Global
Experience” (2018), 28: <https://www.justiceinitiative.org/uploads/fd7809e2-bd2b-4f5b-964f-522c7

c70e747/strategic-litigation-impacts-insights-20181023.pdf> (accessed October 22, 2023).
80 Par Engstrom (ed.), The Inter- American Humans Rights System, Impact Beyond Compliance
(Palgrave 2019), 4.
consider the impact of litigation are comprehensive and permit us to assess the
outcomes so far in the case of Azul.81
• Justice: The impact on the victim(s) through (i) the declaratory element of
the litigation (such as greater public awareness of what has occurred, in-
cluding an acknowledgment of wrongdoing by the relevant authorities),
and (ii) adequate punishment or sanctions (such as a public apology by the
wrongdoer and/or the authorities being compelled to take affirmative ac-
tion to repair damage).
• Truth: Definitive findings of fact that can be of crucial importance to victims
and in campaigns against impunity.
• Legal: Changes in international and/ or national normative standards
brought about by the litigation, whether through treaty, case law, legislation,
or decrees.
• Policy and Governance: Commitments by State authorities to change
policy as a result of the litigation, as well as to concrete changes to technical
procedures necessary to implement any policy changes.
• Material: Specific benefits to the victim(s) stemming from the litigation, in-
cluding material reparations (such as psychosocial support, rehabilitation,
and compensation for harms suffered).
• Community: Benefits of the litigation to others in a similar situation, going
beyond the victim(s) in the case itself (e.g., collective reparations, public ed-
ucation campaigns, paving the way for other claimants).
• Movement: The impact the litigation has on the relevant social movements,
both in the country where the litigation took place and globally, and the role
of human rights systems which may both impact the litigation and be im-
pacted by it.
• Attitudes: Shifts in the attitudes of decision makers and stakeholders (such
as judges, diplomats, journalists, and law enforcement officials) as a result of
the litigation.
• Social: Changes in the acceptability or tolerance of the particular issue in the
country or region concerned.
These criteria, though broadly framed, reflect the kinds of results that can stem
from strategic litigation—including both discrete outcomes such as reparations
for the individual victim(s) in the case and broader, systemic changes, including
legislative changes or other essential reforms (such as abolishing impunity meas-
ures that prevent accountability for grave human rights violations).
81 Open Society Justice Initiative, Strategic Litigation Impacts: Insights from Global Experience
(OSJI 2018), 27.

Additionally, some of these criteria are intended to assess the extent to which
the case has contributed to changing the attitudes of relevant stakeholders, in-
cluding lawmakers, journalists, judges, or law enforcement officials (for ex-
ample, whether strategic litigation and advocacy efforts have sensitized judges to
apply human rights standards in cases related to violence against the LGBTIQ+
community), as well as the effect that the process itself may have in terms of
empowering and rehabilitating the victim.
Some of these criteria may be more relevant in some contexts than others,
or suitable only for evaluating strategic litigation at certain phases. In this re-
gard, while “truth”-related outcomes may emerge relatively early in the litigation
process, policy and governance impacts may take much longer to materialize
(often after years of ongoing advocacy and community organizing).
In assessing material impacts, it is important to recognize that a court
judgment does not necessarily ensure that a victim will receive the neces-
sary reparations. Our litigation experience shows that the implementation of
reparations orders in human rights cases is slow, and many victims wait years
before the reparations to which they are entitled finally materialize, while some
orders are never implemented.82
In addition, a slightly different approach might be taken when evaluating na-
tional litigation as compared to regional or international litigation. The policy
changes sought at regional and international human rights mechanisms (such
as the UN treaty bodies, for example) differ from those sought through national
courts, in part because the decisions in the former fora are not always considered
to have the same legal weight that national decisions do, whereas national
decisions will often not contain orders for State actors to implement measures of
nonrepetition.
The following section uses the preceding criteria to assess the impact of the
Azul judgment so far, since the decision was issued in March 2020.
5. The Impact of Azul’s Judgment
In the case of Azul, the IACtHR ordered important reparation measures, in-
cluding key guarantees of nonrepetition, as well as comprehensive reparations
for both individual and community harms. More than three and a half years has
passed since the decision was issued, and the implementation of reparations by
Peru has been hugely disappointing. As of October 2023, the only measures in
82 “Righting Wrongs: The Dynamics of Implementing International Human Rights Decisions”
[2020] 12(1) Journal of Human Rights Practice; Clara Sandoval, Philip Leach, and Rachel Murray,
“Monitoring, Cajoling and Promoting Dialogue: What Role for Supranational Human Rights Bodies
in the Implementation of Individual Decisions” [2020] 12 Journal of Human Rights Practice 71.
respect of which there has been full compliance are the publication of the judg-
ment, and the staging of a public ceremony of apology and acknowledgment of
international responsibility. Yet the IACtHR decision has had a significant im-
pact on Azul, as well as on others within the continent and beyond.
5.1. Justice, Truth, and Material Impacts for Azul, Her Mother,
and Society
The IACtHR ordered comprehensive individual reparations aimed at recognizing

the material and moral damage caused by the violations to Azul and her mother.
From a justice and truth perspective, the judgment acknowledges Azul and her
mother as victims of all the violations alleged by them in the case.83 The decision
recognizes the facts as reported by the victim, and in doing so it vindicates Azul’s
account of what happened to her, denying the false narrative of those that com-
mitted, supported, and tried to cover up the violations.
Given the existing violence and stigmatization of LGBTIQ+victims in the
Americas,84 the “truth” and “justice” impacts of the decision should not be
underestimated. Upon learning of the IACtHR judgment, Azul stated: “I have
no words to describe how I feel. I thank God above all. After all that I have been
through, finally a court believes me. I only wish I could have been able to share
this joy with my mother, who was always by my side in my efforts to report the
crime and find justice.”85
Since the judgment was issued, Azul’s personal situation has changed. Even
though the Peruvian State has still only paid a small proportion of the mone-
tary compensation due to Azul, her situation of vulnerability and exclusion has
improved, and she is starting studies to become a lawyer.
Furthermore, the judgment has also impacted positively on the empow-
erment of Azul and her fight for justice. In August 2021, Azul was invited as
a speaker to an event organized by the IACHR on the eradication of violence
against women and girls in the Americas. Azul was able to share what happened
to her and the challenges and progress made in her case.86 She spoke powerfully
at the ceremony at which the State apologized to her, and has also been invited

84 IACHR, “Recognition of the Rights of LGBTI Persons,” OEA/Ser.L/V/II.170, December 7, 2018,
para. 240.
85 REDRESS Press Release, “Groundbreaking ruling: Inter-American Court finds Peru respon-
sible for discriminatory torture against an LGBTI person and orders the State to combat discrimina-
tion”: <https://redress.org/news/groundbreaking-ruling-inter-american-court-finds-peru-responsi
ble-for-discriminatory-torture-against-an-lgbti-person-and-orders-the-state-to-combat-discrim
ination/> (accessed October 22, 2023).
86 See <https://www.youtube.com/watch?v=PP9qOI7HKtw> (accessed October 22 2023).
to give media interviews and attend other events in Peru. In many ways, she has
become an active player in the fight against SOGI violence. This shows the im-
pact that litigation can have in empowering victims to be mobilizers for broader
social change.
5.2. Legal Impact of the Case in Other Supranational and

National Bodies
Given that Azul set an unprecedented standard on discriminatory torture, the

decision has had a significant legal impact worldwide.
As mentioned previously, since the ruling in the case of Azul, the ECtHR has
taken a more forceful approach to expand the protection of LGBTIQ+people.
In Aghdgomelashvili and Japaridze,87 the tribunal found for the first time a
substantive violation of Article 3 of the ECHR due to ill treatment by the po-
lice when carrying out a search in the premises of an LGBTIQ+organization.
Subsequently, in B. and C. v. Switzerland,88 the tribunal ruled for the first time in
a case of non-refoulement that the failure of the State to consider the risk of tor-
ture and inhumane treatment of LGBTIQ+people in the country of origin can
result in a violation of Article 3.
Furthermore, during the litigation and following the Azul case, civil society
organizations submitted several joint amicus curiae briefs, encouraging the
ECtHR to develop further its case law on LGBTIQ+discriminatory torture and
ill treatment under Article 3 of the Convention.89
At the UN and regional level, the Group of Eminent International and
Regional Experts on Yemen, mandated by the Human Rights Council to investi-
gate violations in that country, referred to the concept of violence “motivated by
prejudice” developed by the IACtHR in Azul (citing the case), when referring to
instances of violence against LGBTIQ+people in the context of the conflict in
Yemen.90 Similarly, the case was featured in the report of the UN Independent
Expert on SOGI, which focuses on Gender Theory, referring to the decision
as “a remarkable example of judicial recognition of the fluid nature of gender
identity.”91
87 ECtHR, Aghdomelashvili and Japaridze (n. 56).

88 Case of B and C v. Switzerland [2020] ECtHR, App. Nos. 889/19 and 43987/16.
89 See, e.g., A v. Azerbaijan and 24 others [2019] ECtHR, App. No. 17184/ 18; and Maxim
Grigoryevich Lapunov v. Russia (n. 56), the judgment in respect of which was issued in
September 2023.
90 UN HRC, “Situation of human rights in Yemen, including violations and abuses since
September 2014—Detailed findings of the Group of Eminent International and Regional Experts on
Yemen,” UN Doc. A/HRC/45/CPR.7, September 29, 2020, at 214.
91 UN Independent Expert on SOGI. Report on Gender Theory. A/HRC/47/27 and A/76/152, of
June and July 2021, respectively, para. 33.

At the national level, in November 2020 the Mexican Supreme Court of Justice
adopted a Protocol for the Adjudication of Cases with a Gender Perspective
that incorporates some of the standards developed in Azul,92 for example, by
noting that discriminatory violence can be committed against certain social
groups, such as the LGBTIQ+community, as well as the duty to investigate acts
motivated by prejudice. In Argentina, in 2021 the Prosecutors Office released a
casebook containing key international decisions on gender at the international
and regional level. The case of Azul is included, but the volume is especially no-
table for not treating gender in a binary manner (men and women) but rather
rejecting this artificial distinction.93
5.3. The Impact of the Case of Azul on the Community and

the LGBTIQ+Movement
The case of Azul has contributed to shedding light on a key issue that until a few
years ago was invisible in the Americas and given only minimal attention glob-
ally. The IACtHR recognized explicitly that in Peruvian society, strong prejudices
against the LGBTIQ+population existed both at the time of the events in ques-
tion and continue today, resulting, in some cases, in violence.94 In this regard, the
decision has had an important impact by recognizing elements of “justice” and
“truth” in relation to violence against the LGBTIQ+community in Peru, which,
according to the IACtHR, had been effectively invisible due to the lack of official
data.95
The judgment in the Azul case also contributes to the nurturing of synergies
among the community working on LGBTIQ+violence on the continent, with
initiatives such as the creation in 2019 of the LGBTIQ+Litigants Network of the
Americas, set up by Promsex (co-litigants in the Azul case), Colombia Diversa,
and other regional organizations.96
The case of Azul is an important precedent for the feminist movement
conducting strategic litigation on gender violence, as it includes important
standards on the due diligence required to investigate violence with a gender
92 Mexico, Suprema Corte de Justicia de la Nación. Protocolo para Juzgar con Perspectiva de
Género, November 2020.

93 Ministerio Publico, República de Argentina, Perspectiva de género en los sistemas de protección
regional y universal de derechos humanos: Compendio sobre las decisiones e informes de los
órganos y mecanismos internacionales de derechos humanos en materia de género, 2021: <https://
www.mpf.gob.ar/direccion-general-de-politicas-de-genero/files/2021/03/DGPG_Ebook_2021_9-
3.pdf> (accessed November 30, 2021).
95 Ibid., para. 48.
96 Red de Litigantes LGBT de las Américas: < https://litiganteslgbt.org/quienes-somos/> (accessed
October 22, 2023).

perspective.97 Yet among the feminist and LGBTIQ+movements, the Azul and
the Vicky Hernández cases have also generated legal debate on the concept of
gender and the application of treaties on the protection of women’s rights to trans
women. The dissenting votes of IACtHR Judges Vio Grossi and Odio Benito in
the Vicky Hernández case, by which the two Judges disagreed with the majority
in asserting that the Convention of Belém do Pará protects the rights of trans
women, has generated controversy in this respect.98
At the international level, the significance of the Azul decision has been
recognized both in relation to the anti-torture movement99 and by the LGBTIQ+
rights movement.100
Likewise, civil society organizations like Equal Rights Trust or De-Justicia
have used the findings in Azul to argue key points of law and fact at national and
international levels and to continue advocating for full protection of members of
the LGBTIQ+community. For example, Equal Rights Trust cited Azul as a prec-
edent in its submission to the UN Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment on psychological dynamics
conducive to torture and ill treatment,101 and De-Justicia in Colombia did the
same before the Colombian Constitutional Court in a case where the rights
of a trans woman to access her pension were at stake.102 Finally, the case has
energized the LGBTIQ+movement in other regions of the world. For example,
in Africa, the case has been debated publicly among the organizations working
on LGBTIQ+rights, learning from the litigation experience of colleagues in the
Americas.103 Debate over the significance of Azul’s case in the African context
97 The case was featured by the Red Latinoamericana de Litigio Estratégico en Género. See
Alejandra Vicente, “Sexual orientation-based torture: one year since the judgement of the Inter-
American Court case of Azul Rojas Marín”: <https://www.releg.red/blog-eng/blog-azul> (accessed
October 22, 2023).
98 Carlos J. Zelada, “Vicky Hernández et al. V. Honduras: A Landmark Victory with a Bitter
Aftertaste” (August 27, 2021) EJIL: < https://www.ejiltalk.org/vicky-hernandez-et-al-v-honduras-a-

landmark-victory-with-a-bitter-aftertaste/> (accessed October 22, 2023).
99 Former UN Special Rapporteur on Torture, Juan Méndez, has recognized the importance of
the Azul judgment of the anti-torture movement: <https://www.youtube.com/watch?=hmc03pDR

mSA> (accessed October 22, 2023).
100 Victor Madrigal, “UN Independent Expert on Protection against violence and discrimination
based on sexual orientation and gender identity, has highlighted the significance of the judgement
for the LGBTIQ+ movement”: https://www.facebook.com/watch/?v=760455034952166> (accessed
October 22, 2023).
101 Equal Rights Trust (June 2020), paras. 20–21: <https://www.ohchr.org/Documents/Issues/Tort
ure/Call/NGOs/EqualRightsTrust.pdf> (accessed October 22, 2023).

102 Dejusticia, “Respuesta invitación por Oficio OPT- A-2318/2021 al Centro de Estudios de
Derecho, Justicia y Sociedad” (August 5, 2021), 15: <https://www.dejusticia.org/wp-content/uplo
ads/ 2 021/ 0 9/ 2 0210 9 06- Inte r ven c io%CC%81n- D ej usti c ia- r a%CC%81d.- T- 7 .987.537- 1 .pdf>
(accessed October 22, 2023).
103 See, e.g., event of July 1, 2021, with ISLA, the University of Pretoria, Promsex, REDRESS, and
the UN Independent Expert on SOGI.

has also taken place in events organized by the Pan-African Reparation Initiative
and the African Moot Court Conference organized by the University of Pretoria.
6. Reflection on the Impact of the Case
In recent years, important literature has emerged showing the importance of the
implementation of, and compliance with, international decisions.104 At the same
time, there is a push to look beyond that, considering the impact of such interna-
tional decisions, as well as the key role played by the Inter-American System in
dynamics that enable societal change. In the Americas, it is argued, despite lim-
ited compliance with international decisions, the impact of the System is hard to
deny when considering the various decisions, reports, and positions taken by the
IACHR and the IACtHR to facilitate and promote the reinforcement of human
rights protection.
The case of Azul allows us to situate the discussion between three key
concepts: compliance, implementation, and impact. Compliance here means
the actual execution of orders given by supranational bodies in individual
cases (for example, the payment of the compensation ordered, the restitution
of land, or reforms of legal norms). Implementation, on the other hand, refers
to the processes and dynamics that make compliance possible. Clearly, as has
been pointed out,105 looking only at compliance misses the opportunity to un-
derstand the real impact of actors and/or decisions beyond a specific case, but
looking only at impact without taking into account the various dynamics that
are unleashed through the process of implementing decisions also misses the op-
portunity to understand the correlation that exists between these three concepts.
The case of Azul allows us to argue that, while compliance with both the indi-
vidual and collective measures ordered by the Court has been poor, the case has
generated dynamics of implementation both to achieve compliance and also to
ensure impact. These are mutually reinforcing dynamics.
These dynamics have been the result of diverse factors, but there are two that
stand out: first, the organizations behind the case have generated pathways to
impact through multiple meetings, conferences, and workshops to promote the
findings of the case and help such standards to penetrate legal consciousness at
various levels (nationally, regionally, and internationally). To this end, they are
104 “Righting Wrongs: The Dynamics of Implementing International Human Rights Decisions”
(n. 82), 71; Society Justice Initiative, “Implementing Humans Rights Decisions: Reflection, Successes
and New Directions” (OSJI 2021): <https://www.justiceinitiative.org/uploads/3e398a5e-0b10-4fa4-
ba28-275bc909a8f8/implementing-human-rights-decisions-20210721.pdf> (accessed October
22, 2023).
105 Ibid.
part of key networks and communities of practice in this area as exemplified by

the LGBT Network of Litigants in the Americas, or as demonstrated by their
partnering with key civil society organizations such as Colombia Diversa to
write a report about violence against the LGBTIQ+community in the Americas
region.
Second, these organizations have not acted alone. The Inter- American
Human Rights System, both Commission and Court, have been essential to their
strategy, and clearly, as this chapter demonstrates, there are reinforcing positions
taken by both institutions that paved the way for the judgment and that allowed
them to develop new standards in key policy and legal spaces in the region and
beyond. As indicated by Engstrom and others, “the IASHR is likely to be most
effective where its various mechanisms are employed in a coordinated fashion
[and] where domestic actors utilise its rulings and precedents to further their
own efforts to bring about national-level policy change . . .”106
Importantly, this network has facilitated work in the region but also beyond,
including in Africa, which, as already noted in this article, is lagging behind in
the protection of the rights of LGBTIQ+persons. Therefore, a key element to
consider when exploring impact, are the networks of action that exist, and the
ecosystem of change that develops as a result of strategic litigation, as well as the
dynamics that predate, exist alongside, and follow such international litigation.
The criteria to assess impact utilized in this chapter, including justice, truth, the
social movement, legal, policy, material, and other forms of impact, show that
while it is still too early to analyze the full impact of the case of Azul, the reach of
this judgment is undeniable, even despite poor implementation thus far of the
orders given by the Court.
It is also clear that key dynamics have been unleashed to ensure implemen-
tation of the judgment, as shown by the work of Azul, REDRESS, and Promsex,
aiming to secure compliance but also to ensure that broader social change
is achieved. On this point, the ecosystem of actors, including the IAHRS, UN
bodies and special procedures, and the ECtHR, alongside civil society organiza-
tions and State authorities, have all played a key role. Hopefully, the case of Azul
and subsequent judgments like that of Vicky Hernández, will prompt effective
change in Africa and other regions, thus representing a significant contribution
to ensuring that, worldwide, there is broad acceptance that no one should suffer
violence and discrimination based on sexual orientation or gender identity.
106 Ibid., 1.
II.7
The Rights of the Child According to the
Inter-American Court of Human Rights
A Latin American Translation*
By Mary Beloff
1. Introduction
The rights of the child were recognized early on both in the Universal1 and Inter-
American human rights systems.2 These rights were originally framed as positive
* I am deeply grateful to Virginia Deymonnaz (UBA) for her outstanding research assistance and
to Ana Horowitz for her patient and thoughtful reading and comments on the text.
1 International Labour Organization: Convention fixing the minimum age for admission of chil-
dren to industrial employment (1919); Convention concerning the night work of young personas em-
ployed in industry (1919); Convention fixing the minimum age for admission of children to employment
at sea (1920); Convention concerning the age for admission of children to employment in agriculture
(1921); Convention on the medical examination of young persons—sea—(1921); Convention fixing
the minimum age for the admission of children to employment at sea (revised 1936); Convention con-
cerning the Night Work of Young Persons Employed in Industry (revised 1948); Convention concerning
the prohibition and immediate action for the elimination of the worst forms of child labour (1999).
United Nations: (a) Declarations: Declarations of the Rights of the Child (1924 and 1959); Universal
Declaration of Human Rights, article 25.2 (1948); Declaration on the Protection of Women and
Children in Emergency and Armed Conflict (1974), Declaration on Social and Legal Principles relating
to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption
Nationally and Internationally (1986); (b) Conventions and Covenants: Geneva Convention (IV) rel-
ative to the Protection of Civilian Persons in Time of War articles 14, 17, 23, 24, 38, 50, 76, 89, 94,
and 132 (1949); International Covenant on Economic, Social and Cultural Rights articles 10.3 and
12.2.a (1966); International Covenant on Civil and Political Rights articles 6.5, 10, 14.4, and 24 (1966);
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
victim of International Armed Conflicts—Protocol I (1977) articles 70, 77, and 78; Protocol Additional
to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-
International Armed Conflicts—Protocol II (1977) articles 4.3, and 6.4; Convention on the Elimination
of All Forms of Discrimination against Women, articles 5, 9, 11, 12, and 16 (1979); Hague Convention
on the Civil Aspects of International Child Abduction (1980); Convention on the Rights of the Child
(1989) and its Optional Protocols (Optional Protocol to the Convention on the Rights of the Child on
the sale of children, prostitution and child pornography (2000), Optional Protocol to the Convention on
the Rights of the Child on the involvement of children in armed conflict (2000), and Optional Protocol
to the Convention on the Rights of the child on a communications procedure (2011); Hague Convention
on Protection of Children and Cooperation in respect of Intercountry Adoption (1993); and Hague
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect to
Parental Responsibility and Measures for the Protection of Children (1996).
2 American Declaration of the Rights and Duties of Man (1948), articles VII and XXX [herein-
after American Declaration, or ADHR]; American Convention on Human Rights (1969), article 19
Mary Beloff, The Rights of the Child According to the Inter-American Court of Human Rights In: The Impact of the
Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and
Mariela Morales Antoniazzi, Oxford University Press. © Mary Beloff 2024. DOI: 10.1093/oso/9780197744161.003.0018
Rights of the Child According to the IACtHR 327
State obligations under the legal definition of “special protection measures,” and
they were generally understood to be inextricably linked to the principle of the
“best interest” of the child. In Latin America this normative structure associated
with the then-in-force inquisitorial procedural norms occasionally gave rise to
an unjustified paternalism in administrative and judicial practices that could go
to the extreme of making the child invisible as a subject of rights. Only after the
ratification of the Convention on the Rights of the Child (CRC) in 1989 did the
general understanding of child rights shift in its approach in favor of a more com-
plex appreciation of childhood that seeks to balance protection and autonomy,
and that reasonably combines positive and negative State obligations toward this
age group that is defined by its essential vulnerability.3
This development brought together two fields that had remained separate until
the early 1990s in the region: human rights and child protection activism. Legal
academia has, in turn, just recently begun to consider the rights of the child, es-
pecially as these have evolved in the jurisprudence of the Inter-American Court
of Human Rights (IACtHR).4
The Inter-American Human Rights System’s (IAHRS’s)5 relative omission of
child rights cannot be explained as a matter of law, since its main instruments—the
American Declaration on the Rights and Duties of Man in 1948 and the American
Convention on Human Rights in 1969—explicitly recognized the rights of children.
The motives for the IAHRS’s delay in processing cases related to children’s
rights are not analyzed here. This chapter instead examines one possible reason
for why it began to pay attention to the rights of the child. The thesis adopted
here is that it was not the legal but the political and cultural impact of the CRC
which explains the changes in perspective and practices in this field among dif-
ferent actors of the Inter-American system.6 Only after the CRC was adopted and
was subsequently ratified by all countries in less than two years did the IAHRS
begin to systematically frame child protection cases in human rights terms.
and also articles 4.5, 5.5, 13.4, 17, and 27; and Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), ar-
ticle 16 (1988) [hereinafter American Convention, or ACHR]. Also Inter-American Convention on
Conflict of Laws concerning the Adoption of Minors (1984); Inter-American Convention on Support
Obligations (1989); Inter-American Convention on the International Return of Children (1989); and
Inter-American Convention on International Traffic in Minors (1994). The Inter-American Convention
on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do
Pará), article 9 (1994) contains a reference to the vulnerability due to a girl’s minority in relation to
protection measures in contexts of violence.
3 Mary Beloff, Derechos del niño. Su protección especial en el sistema interamericano (2nd ed.,
Hammurabi 2019), ch. 1, at 39.

4 Hereinafter Inter-American Court or IACtHR
5 Hereinafter Inter-American System, or IAHRS.
6 See Mary Beloff, Derechos del niño. Su protección especial en el sistema interamericano (2nd ed.,
Hammurabi 2019), Introduction and chs. 1–3.

328 Mary Beloff
This chapter outlines the evolution in the Inter-American Court’s interpreta-

tion of the content of child rights (ACHR, art. 19). It aims to comprehensively
analyze the Court’s decisions concerning this article, as well as to provide some
clues as to why the rights of the child remains an unsettled issue in the region.
2. The Recognition of the Existence of an International

Corpus Juris on the Protection of the Rights of the Child
The three general inter-American instruments for the protection of human rights
(the American Declaration, the American Convention, and the Additional Protocol
to the American Convention on Economic, Social, and Cultural Rights, or “Protocol
of San Salvador”) recognize the right of the child to special protection measures.
The American Declaration contains two provisions concerning children’s
rights: Article VII, which provides that “all children have the right to special protec-
tion, care and aid,” and Article XXX, which establishes “the duty of every person to
aid, support, educate and protect his minor children,” as well as “the duty of children
to honor their parents always and to aid, support and protect them when they need it.”
The American Convention contains five provisions related to children: Articles
4.5, 5.5, 13.4, 17.4–5, and, most importantly, Article 19. Article 4.5 states that
“[c]‌apital punishment shall not be imposed upon persons who, at the time the
crime was committed, were under 18 years of age”; Article 5.5. establishes that
“minors, while subject to criminal proceedings, shall be separated from adults
and brought before specialized tribunals, as speedily as possible, so that they
may be treated in accordance with their status as minors”; Article 13.4 states that
“public entertainments may be subject by law to prior censorship for the sole
purpose of regulating access to them for the moral protection of childhood and
adolescence”; and Article 17, which provides for the protection of the family,
requires that “[i]n case of dissolution [of a marriage], provision shall be made
for the necessary protection of any children solely on the basis of their own best
interests” (17.4) and also states that “[t]he law shall recognize equal rights for
children born out of wedlock and those born in wedlock” (17.5).7
Only ACHR Article 19, however, refers directly to the rights of the child in
its title and content. The provision states: “Every minor child has the right to the
measures of protection required by his condition as a minor on the part of his
family, society, and the state.” This article serves as the backbone of the Inter-
American System’s approach to the protection of children.
In addition, Article 16 of the Protocol of San Salvador provides that “[e]‌very
child, whatever his parentage, has the right to the protection that his status as
7 The relevance of children’s rights in the system of protection created by the American Convention
is also reflected in Article 27 of this treaty, which establishes that Articles 4 (Right to Life), 5 (Right
to Humane Treatment), 17 (Rights of the Family), 18 (Right to a Name), and Article 19 (Rights of the
Child) cannot be suspended even in the event of war, public danger, or other emergency.
a minor requires from his family, society and the state”; that he or she has “the
right to grow under the protection and responsibility of his parents”; that “save
in exceptional, judicially-recognized circumstances, a child of young age ought
not to be separated from his mother; and that “[e]very child has the right to free
and compulsory education, at least in the elementary phase, and to continue his
training at higher levels of the educational system.”
Although the aforementioned article develops some content of the general
right to special protection, the fact is that, in the inter-American sphere, there are
no other rules and principles that assign further content to it. For this reason, the
adjudication of cases on the basis of Article 19 of the American Convention and
other articles included in regional treaties over which the IACtHR has jurisdic-
tion becomes more complex due to the considerable lack of precision regarding
what content these special protection measures must have.
For that reason, the Inter-American Court’s recognition that “[b]‌oth the
American Convention and the Convention on the Rights of the Child form part
of a very comprehensive international corpus juris for the protection of the child
that should help this Court establish the content and scope of the general provi-
sion established in Article 19 of the American Convention” was decisive.8
It was not until 1999, when the Court first decided a case on the basis of ACHR
Article 19 (Villagrán Morales et al.—case of the “Street Children”—v. Guatemala),
that it began to draw on this corpus juris and continued to do so in later decisions
concerning children in different situations of vulnerability due to socioeconomic
deprivation, gender, ethnicity, and disabilities, among others.9
According to the Court, the very comprehensive corpus juris in question
includes not only Article 19 of the American Convention but it also extends be-
yond the IAHRS to incorporate the UN Declarations of the Rights of the Child
(1924 and 1959), the Convention on the Rights of the Child, the UN Standard
Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules,”
1985), the UN Standard Minimum Rules for Non-custodial Measures (“The
8 IACtHR, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala, Merits, November
19, 1999, Ser. C. No. 63, 8para. 194.

9 The Inter- American Court has recognized the existence of several international corpora
juris: “[R]‌egarding the special protection required by the members of the indigenous communities”
(IACtHR, Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations, and
Costs, June 15, 2005, Ser. C No. 125, para. 163); of “human rights of migrants” (IACtHR, Case of the
Pacheco Tineo family v. Bolivia, Preliminary objections, Merits, Reparations, and Costs, November
25, 2013, Ser. C No. 272, para. 129), and “for the protection of human rights of children that are
asylum seekers and refugees in the American continent” (IACtHR, Advisory Opinion OC-21/14,
Rights and guarantees of children in the context of migration and/or in need of international protection,
August 19, 2014, Ser. A No. 21, para. 249); “of protection of the personal integrity of women” and
“as regards the prevention and punishment of violence against women” (IACtHR, Case of González
et al. (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, November
16, 2009, Ser. C No. 205, paras. 225 and 248); “for the protection of the human rights of persons with
disabilities” (IACtHR, Case of Chinchilla Sandoval et al. v. Guatemala, Preliminary objection, Merits,
Reparations, and Costs, February 29, 2016, Ser. C No. 312, concurring opinion of Judge Ferrer Mac-
Gregor, para. 9); and “of human rights related to the prohibition of discrimination based on sexual
orientation” (IACtHR, Case of Atala Riffo and daughters v. Chile, Merits, Reparations, and Costs,
February 24, 2012, Ser. C No. 239, para. 272).
330 Mary Beloff
Tokyo Rules,” 1990), and the UN Guidelines for the Prevention of Juvenile
Delinquency (“The Riyadh Guidelines,” 1990), in addition to other, general in-
ternational human rights instruments.
It also resorted to the Convention on the Rights of the Child when developing
its interpretation of the best interests of the child as a “regulating principle re-
garding children’s rights [ . . . ] based on the very dignity of the human being, on
the characteristics of children themselves, and on the need to foster their devel-
opment, making full use of their potential, as well as on the nature and scope of
the Convention on the Rights of the Child.”10
The Inter-American Court’s reliance on UN instruments and resolutions
through the wide notion of corpus juris reveals its intention to initiate a sort of
dialogue with the Universal human rights protection system. This tendency was
striking at first given that it had no a priori legal basis for doing so nor did the
Universal system include bodies with adjudicative competence. With the pas-
sage of time and the sustained issuing of rulings by the IACtHR, the question has
become naturalized to the point that, currently, both the Court and the different
treaty monitoring bodies of the Universal system (in this case, the Committee on
the Rights of the Child), reciprocally invoke decisions of the other.11
3. Defining “Child” in International Law: The Impact of the

Convention on the Rights of the Child on the Inter-American
Court Case Law
Although human rights instruments recognized that children have rights under
international law since the beginning of the twentieth century, the content and
scope of these rights remained associated with unjustified paternalistic criteria
until recently.
10 IACtHR, Advisory Opinion OC-17/2002, Juridical Condition and Human Rights of the Child,
August 28, 2002, Ser. A No. 17, para. 56; Case of Bulacio v. Argentina, Merits, Reparations, and
Costs, September 18, 2003, Ser. C No. 100, para. 134; Case of the Gómez Paquiyauri Brothers v. Peru,
Merits, Reparations, and Costs, July 8, 2004, Ser. C No. 110, para. 163; Case of Fornerón and daughter
v. Argentina, Merits, Reparations, and Costs, April 27, 2012, Ser. C No. 242, para. 49; Case of Atala
Riffo and daughters v. Chile (n. 9) para. 108; Case of Gonzales Lluy et al. v. Ecuador, Preliminary
Objections, Merits, Reparations, and Costs, September 1, 2015, Ser. C No. 298 para. 268; Case of
Ramírez Escobar et al. v. Guatemala, Merits, Reparations, and Costs, March 9, 2018, Ser. C No. 351,
para. 152; among others.
11 The Committee on the Rights of the Child frequently cites the Inter-American Court, and vice
versa. For example, in General Comment No. 8 on “The right of the child to protection from cor-
poral punishment and other cruel or degrading form of punishment,” the CRC refers to the Advisory
Opinion OC-17/02 when it asserts that the States “are under the obligation . . . to adopt all posi-
tive measures required to ensure protection of children against mistreatment, whether in their rela-
tions with public authorities, or in relations among individuals or with nonstate entities.” (para. 24).
The CRC also systematically evaluates compliance with decisions adopted by regional bodies when
monitoring country situations.
The Inter-American Court has played a decisive role in bringing about change
by weighing positive State obligations and negative freedoms in relation to chil-
dren without making the mistake of adopting a liberationist approach that places
them par conditio with adults. To this end, the Court has relied heavily on the
Convention on the Rights of the Child. This illustrates the aforementioned dia-
logue and the current interdependence of regional and Universal human rights
systems on issues related to the scope and content of the protection of children.
The fact that neither of the four specific regional instruments related to
minors12 that regulate matters of private international law, nor general inter-
American human rights instruments that establish State, community, and family
duties to secure the rights of children, define “child” for purposes of interna-
tional human rights law, explain why the Convention on the Rights of the Child
and the decisions of its treaty body, the Committee on the Rights of the Child,13
have become so crucial for the development of the scope of children’s rights in
IACtHR case law.
In the aforementioned Villagrán Morales et al. v. Guatemala case, the Court
adopted the Convention’s age-based definition of “child.”14 It stated that although
“Article 19 of the American Convention does not define what is meant by ‘child’
[ . . . ], the Convention on the Rights of the Child (Article 1) considers every
human being who has not attained 18 years of age to be a child.”15 Shortly after,
in Advisory Opinion OC-17/02, the Court again established that “taking into
account international norms [ . . . ], ‘child’ refers to any person who has not yet
turned 18 years of age” and also decided that the term child “obviously [ . . . ]
encompasses boys, girls, and adolescents.”16
12 Art. 2 Inter- American Convention on support obligations (1989): “For the purposes of this
Convention, a child shall be any person below the age of eighteen years”; art. 2 Inter-American
Convention on the International return of children (1989): “For the purposes of this Convention, a
child shall be any person below the age of sixteen years.”; and art. 2, a), Inter-American Convention on
International traffic in minors (1994): “For the purpose of the present Convention: a) “Minor” means
any human being below the age of eighteen.”
13 Hereinafter CRC.
14 Article 1, Convention on the Rights of the Child. The last part of this article allows the States to
retain the ability to establish in their domestic law that the age of majority can be reached prior to
eighteen years, but in Latin America this second provision has not been used to challenge the rule that
one is a child until the age of eighteen. Even the United States, which did not ratify the CRC, upholds
the same criterion in its Supreme Court rulings. On the other hand, the Human Rights Committee has
established that “the ages for protection” should not be “unreasonably brief ” and that in no case may a
State fail to comply with its obligations of protection of children and adolescents, even if they attained
legal age prior to eighteen years under national legislation. See Human Rights Committee, General
Comment 17, Article 23 Rights of the Child, para. 4. Additionally, Convention 182 concerning the
Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, establishes
in its Article 2 that the term “child” refers to “every person under 18 years of age” as does the Protocoto
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the
United Nations Convention against Transnational Organized Crime (art. 3).
15 IACtHR, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala [1999], Ser. C
No. 63, para. 188.

16 IACtHR, Juridical Condition and Human Rights of the Child (n. 10) para. 42 and fn. 45, italics added.
332 Mary Beloff
The Villagrán Morales et al. v. Guatemala case involved five victims; only three were
under eighteen years of age. Nevertheless, the Inter-American Court referred to all
five victims as “street children.”17 In subsequent cases, it reiterated its understanding
that “ ‘child’ refers to any person who has not yet turned 18 years of age”18 and did
not modify its definition even when considering issues such as the scope of the right
to special protection measures when dealing with adults serving jail time for crimes
committed when they were minors. This was recently decided in the Mota Abarullo
et al. v. Venezuela case, where the Court extended the right to special protection to
persons beyond the age of eighteen years serving a custodial sentence by determining:
(. . .) the relevant obligations of the State (. . .) started from the time they came
into contact with the system of justice and their deprivation of liberty when they
were juveniles, corresponded to those relating to the rights of the child, pursuant
to Article 19 of the Convention. Accordingly, in order to comply with the socio-
educational objective inherent in measures adopted in the case of children who
have committed criminal offenses, even when such offenses entail the deprivation
of liberty, it is necessary to extend the special juvenile regime to those who turn
18 while they are complying with those measures. Thus, the mere fact of turning
18 does not remove young people subject to deprivation of liberty in facilities for
juveniles from the special protection that should be provided by the State. ( . . . ).19
This precise definition of “child” is associated with the person’s essential vul-
nerability, which has also led the Court to consistently highlight the positive
obligations that this condition imposes on the adult world. These duties consti-
tute the clearest expression of justified paternalism in international human rights
law: according to the Court, children have “special rights corresponding to spe-
cific obligations of the family, society, and the State.”20
4. The Inter-American Court Jurisprudence on the

Rights of Children
The Court has addressed the rights of the child in: (1) advisory opinions; (2) pro-
visional measures; and (3) contentious cases.
17 Beloff (n. 3), ch. IV.

18 IACtHR, Case of Bulacio v. Argentina, (n. 10) para. 133.
19 IACtHR, Case of Mota Abarullo et al. v. Venezuela, Merits, Reparations, and Costs, November
18, 2020, Ser. C No. 417, para. 85.

20 Among others, IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic, Merits,
Reparations, and Costs, September 8, 2005, Ser. C No. 130, para. 133; Case of the Xákmok Kásek
Indigenous Community v. Paraguay, Merits, Reparations, and Costs, August 24, 2010, Ser. C No.
214, para. 257; Case of the Dos Erres Massacres v. Guatemala, para. 184; and Case of González et al.
(“Cotton Field”) v. Mexico (n. 9) para. 408.
4.1. Inter-American Court Advisory Opinions Related

to Child Rights
The Inter-American Court has issued two advisory opinions related to the rights
of children: OC-17/02 “Juridical Condition and Human Rights of the Child”21
and OC-21/14 “Rights and Guarantees of Children in the Context of Migration
and/or in Need of International Protection.”22 It issued a third advisory opinion
OC-29/22 “Differentiated Approaches with respect to Certain Groups of Persons
Deprived of Liberty” that includes one section regarding “children living in de-
tention centers with their mothers or primary caregivers.”23
Among them, the most relevant document is, however, the Advisory Opinion
OC-17/02 where the Court determined “the reach of special measures of pro-
tection for children (Article 19 of the Convention) in relation to the legal and
judicial guarantees of the Convention.” Despite some lack of conceptual clarity,
OC-17/02 constitutes a milestone in the field because it is the one inter-American
document containing the most comprehensive set of legal standards pertaining
to children.
4.2. Provisional Measures Regarding Children outside the

Framework of a Contentious Case
The Inter-American Court has intervened in matters related to the rights of

the child not only by issuing judgments in individual proceedings but also by
adopting provisional measures according Article 63.2 of the ACHR and Article
27 of the Rules of Procedure of the Inter-American Court “[i]‌n cases of extreme
gravity and urgency, and when necessary to avoid irreparable damage to persons
( . . . ) in matters it has under consideration.”
This article also empowers the Court to issue provisional measures in cases
not yet submitted before it, at the request of the Commission. This happened in
the context of two juvenile detention centers in Brazil24 and in connection with
adoption proceedings in Paraguay.25
21 IACtHR, Juridical Condition and Human Rights of the Child (n. 10), para. 56.
22 IACtHR, Rights and guarantees of children in the context of migration and/or in need of inter-
national protection. Advisory Opinion OC-21/14 of August 19, 2014. Series A No.21.
23 IACtHR, Differentiated approaches with respect to certain groups of persons deprived of liberty
(Interpretation and scope of Articles 1(1), 4(1), 5, 11(2), 12, 13, 17(1), 19, 24, and 26 of the American
Convention on Human Rights and other human rights instruments), Advisory Opinion OC-29/22,
May 30, 2022, Ser. A No. 29.
24 IACtHR, Matter of children deprived of liberty in the “Complexo do Tatuapé” of Fundação CASA
Provisional Measures regarding Brazil; and Matter of the Socio-Educational Internment Facility
[Provisional Measures regarding Brazil].
25 IACtHR, Matter of L.M. regarding Paraguay.
334 Mary Beloff
4.3. The Inter-American Court Case Law Regarding the Rights

of Children (ACHR Article 19)
In its jurisprudence, the Inter-American Court has focused primarily on ACHR

Article 19. It does not apply a uniform approach when analyzing State practice in re-
lation to this provision. In some cases, the Court analyzes ACHR Article 19 autono-
mously, while in others it analyzes this provision in conjunction with other norms.
It similarly varies in its application of ACHR Article 19 in determining reparations.
In the following paragraphs, I present all sixty-three contentious cases in
which, as of September 2023, the Court found a violation of ACHR Article 19. In
fifty-three cases, the Court analyzed the content of ACHR Article 19 and found
that a State had violated this provision; in the remaining ten cases, it found that a
State had violated ACHR Article 19 without analyzing its content.26 Additionally,
there are two cases where it analyzed the content of ACHR Article 19, but did not
determine its violation for procedural reasons.27
I classify the sixty-three decisions into two main groups: one set of decisions
concerns violations of the rights of individuals and the other set concerns attacks
on the rights of communities.
There are fifty-one cases regarding violations of the rights of individuals, which
I in turn categorize into six categories: (1) institutional violence; (2) juvenile jus-
tice; (3) discrimination; (4) health, education, and special needs; (5) forced labor
and trafficking; and (6) child soldiers. Some of these categories are in turn di-
vided into subcategories:
(1) Institutional violence includes: (a) summary executions (two cases),28

(b) institutional/urban violence (four cases),29 (c) institutional violence in
26 IACtHR, Case of Molina Theissen v. Guatemala, Reparations and Costs, July 3, 2004, Ser. C No.
106; Case of Carpio Nicolle et al. v. Guatemala, Merits, Reparations, and Costs, November 22, 2004,
Ser. C No. 117; Case of Tiu Tojín v. Guatemala, Merits, Reparations, and Costs, November 26, 2008,
Ser. C No. 190; Case of Human Rights Defender et al. v. Guatemala, Preliminary Objections, Merits,
Reparations, and Costs, August 28, 2014, Ser. C No. 283; Case of Yarce et al. v. Colombia, Preliminary
Objection, Merits, Reparations, and Costs November 22, 2006, Ser. C No. 325; Case of Vereda La
Esperanza v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, November 21, 2017,
Ser. C No. 341; Case of Carvajal Carvajal et al. v. Colombia, Merits, Reparations, Court Costs, and
Legal Fees, March 13, 2018, Ser. C No. 352; Case of Omeara Carrascal et al. v. Colombia, Merits,
Reparations, and Costs, November 21, 2018, Ser. C No. 368; Case of Deras García et al. v. Honduras,
Merits, Reparations, Costs, and Expenses, August 25, 2022, Ser. C No. 482; and Case of Tabares Toro
et al. v. Colombia, Merits, Reparations, and Costs, May 23, 2023, Ser. C No. 491.
27 IACtHR, Case of Serrano Cruz Sisters v. El Salvador, Merits, Reparations, and Costs, March 1,
2005, Ser. C No. 120; and Case of Vargas Areco v. Paraguay, September 26, 2006 Ser. C No. 155.
28 IACtHR, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (n. 8); and Case of
Servellón García et al. v. Honduras, Merits, Reparations, and Costs, September 21, 2006, Ser. C No. 152.
29 IACtHR, Case of Bulacio v. Argentina (n. 10); Case of García Ibarra et al. v. Ecuador Preliminary
Objections, Merits, Reparations, and Costs, November 17, 2015, Ser. C No. 306; Case of Carpio Nicolle
et al. v. Guatemala (n. 26); and Case of Valencia Campos et al. v. Bolivia, Preliminary Objections,
Merits, Reparations, and Costs, October 18, 2022, Ser. C No. 469.
the context of political crises and political instability (eight cases),30 (d) vi-
olence against human rights defenders (two cases),31 and (e) forced disap-
pearance (ten cases).32
(2) Juvenile justice includes three cases.33
(3) Discrimination includes: (a) discrimination due to migrant or refugee
status (three cases),34 (b) discrimination due to gender stereotypes and
gender-based violence (six cases),35 and (c) discrimination in the context of
the family (five cases).36
(4) Health, education, and special needs includes four cases.37
30 IACtHR, Case of the Gómez Paquiyauri Brothers v. Peru, Merits, Reparations, and Costs, July
4, 2004, Ser. C No. 110; Case of the Barrios family v. Venezuela, Merits, Reparations, and Costs,
November 24, 2011, Ser. C No. 237; Case of Uzcátegui et al. v. Venezuela, Merits and Reparations,
September 3, 2012, Ser. C No. 249; Case of Vélez Restrepo and family v. Colombia, Preliminary
Objection, Merits, Reparations, and Costs, September 3, 2012, Ser. C No. 248; Case of Landaeta
Mejías Brothers et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, August
27, 2014, Ser. C No. 281; Case of Carvajal Carvajal et al. v. Colombia (n. 26); Case of Omeara Carrascal
et al. v. Colombia (n. 26); and Case Deras García et al. v. Honduras, Merits, Reparations, Costs, and
Expenses, August 25, 2022, Ser. 482.
31 IACtHR, Case of Human Rights Defender et al. v. Guatemala (n. 26); and Case of Yarce et al.
v. Colombia (n. 26).

32 IACtHR, Case of Molina Theissen v. Guatemala (n.26); Case of Tiu Tojín v. Guatemala (n. 26);
Case of Chitay Nech et al. v. Guatemala, Preliminary Objections, Merits, Reparations, and Costs, May
25, 2010, Ser. C No. 212; Case Gelman v. Uruguay, Merits and Reparations, February 24, 2011, Ser.
C No. 221; Case of Contreras et al. v. El Salvador, Merits, Reparations, and Costs, August 31, 2011,
Ser. C No. 232; Case of Gudiel Álvarez et al. (“Diario Militar”) v. Guatemala, Merits, Reparations, and
Costs, November 20, 2012, Ser. C No. 253; Case of Rochac Hernández et al. v. El Salvador, Merits,
Reparations, and Costs, October 14, 2014, Ser. C No. 285; Case of Vereda La Esperanza v. Colombia
(n. 26); Case of Movilla Galarcio et al. v. Colombia, Merits, Reparations, and Costs, June 22, 2022, Ser.
C No. 452; and Case of Tabares Toro et al. v. Colombia (n. 26).
33 IACtHR, Case of the “Juvenile Reeducation Institute” v. Paraguay, Preliminary Objections,
Merits, Reparations, and Costs, September 2, 2004, Ser. C No. 112; Case of Mendoza et al. v. Argentina,
Preliminary Objections, Merits, and Reparations, May 14, 2013, Ser. C No. 260; and Case of Mota
Abarullo et al. v. Venezuela, Merits, Reparations, and Costs, November 18, 2020, Ser. C No. 417.
34 IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic (n. 20); Case of the Pacheco
Tineo family v. Bolivia (n. 9); and Case of expelled Dominicans and Haitians v. Dominican Republic,
Preliminary Objections, Merits, Reparations, and Costs, August 28, 2014, Ser. C No. 282.
35 IACtHR, Case of González et al. (“Cotton Field”) v. Mexico (n. 9); Case of Rosendo Cantú et al.
v. Mexico Preliminary Objections, Merits, Reparations, and Costs, August 31, 2010, Ser. C No. 216;
Case of Véliz Franco et al. v. Guatemala, Preliminary Objections, Merits, Reparations, and Costs, May
19, 2014, Ser. C No. 277; Case of V.R.P., V.P.C. et al. v. Nicaragua, Preliminary Objections, Merits,
Reparations, and Costs, March 18, 2018, Ser. C No. 350; Case of Guzmán Albarracín et al. v. Ecuador,
Merits, Reparations, and Costs, June 24, 2020, Ser. C No. 405; and Case Angulo Losada v. Bolivia,
Preliminary Objections, Merits, and Reparations, November 18, 2022, Ser. C No. 475.
36 IACtHR, Case of Atala Riffo and daughters v. Chile (n. 9); Case of Fornerón and daughter
v. Argentina Merits, Reparations, and Costs, April 27, 2012, Ser. C No. 242; Case of Ramírez Escobar
et al. v. Guatemala Merits, Reparations, and Costs, March 9, 2018, Ser. C No. 351; Case of López et al.
v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, November 25, 2019, Ser. C No.
396; and Case María et al. v. Argentina, Merits, Reparations, and Costs, August 22, 2023. Ser. C No. 494.
37 IACtHR, Case of Furlan and family v. Argentina, Preliminary Objections, Merits, Reparations, and
Costs August 31, 2012, Ser. C No. 246; Case of Gonzales Lluy et al. v. Ecuador, Preliminary Objections,
Merits, Reparations, and Costs, September 1, 2015, Ser. C No. 298; Case Vera Rojas et al. v. Chile,
Preliminary Objections, Merits, Reparations, and Costs, October 1, 2021, Ser. C No. 439; and Case of
Brítez Arce et al. v. Argentina, Merits, Reparations, and Costs, November 16, 2022, Ser. C No. 474.
336 Mary Beloff
(5) Forced labor and trafficking includes three cases.38

(6) Child soldiers includes one case.39
The remaining twelve cases concern massive violations of the rights of Indigenous
or Afro-descendant communities. I classify these decisions by country for the pur-
pose of facilitating a better understanding of the issue and to avoid repetition due
to nature of the rights that have been violated and the similarity of the sociopolitical
contexts in which these violations took place: Paraguay (two cases);40 Colombia (four
cases);41 Guatemala (four cases);42 El Salvador (one case);43 and Peru (one case).44
If all sixty-three cases were to be sorted by country, the breakdown would be:
Argentina, seven cases;45 Bolivia, three cases;46 Brazil, two cases;47 Chile, two
cases;48 Colombia, eleven cases;49 the Dominican Republic, two cases;50 Ecuador,
38 IACtHR, Case of the Hacienda Brasil Verde Workers v. Brazil, Preliminary objections, Merits,
Reparations, and Costs, October 20, 2016, Ser. C No. 318; Case of the Workers of the fireworks factory
in Santo Antônio de Jesus and their families v. Brazil, Preliminary Objections, Merits, Reparations, and
Costs, July 15, 2020, Ser. C No. 407; and Case of Buzos Miskitos (Lemoth Morris et al.) v. Honduras,
August 31, 2021, Ser. C No. 432.
39 IACtHR, Case of Noguera et al. v. Paraguay , Merits, Reparations, and Costs, March 9, 2020, Ser.
C No. 401.
40 IACtHR, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations,
and Costs, March 29, 2006, Ser. C No. 146; Case of the Xákmok Kásek Indigenous Community
v. Paraguay, Merits, Reparations, and Costs, August 24, 2010, Ser. C No. 214.
41 IACtHR, Case of the Mapiripán Massacre v. Colombia, Merits, Reparations, and Costs, September
15, 2005, Ser. C No. 134; Case of the Ituango Massacres v. Colombia, Preliminary Objections, Merits,
Reparations, and Costs, July 1, 2006, Ser. C No. 148; Case of the Santo Domingo Massacre v. Colombia,
Preliminary objections, Merits, and Reparations, November 30, 2012, Ser. No. 259, and Case of the
Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia,
Preliminary Objections, Merits, Reparations, and Costs, November 20, 2013, Ser. C No. 270.
42 IACtHR, Case of the “Las Dos Erres” Massacre v. Guatemala, Merits, Reparations, and Costs,
September 15, 2009, Ser. C No. 211; Case of the Río Negro Massacres v. Guatemala, Preliminary
Objection, Merits, Reparations, and Costs, September 4, 2012, Ser. C No. 250; Case of Coc Max et al.
(Massacre of Xamán) v. Guatemala, Merits, Reparations, and Costs, August 22, 2018, Ser. C No.
356; and Case of the Village of Los Josefinos Massacres v. Guatemala, Preliminary objection, Merits,
Reparations, and Costs, November 3, 2021, Ser. C No. 442.
43 IACtHR, Case of the Massacres of El Mozote and Nearby Places v. El Salvador, Merits,
Reparations, and Costs, October 25, 2012, Ser. C No. 252.

44 IACtHR, Case of Peasant Community of Santa Barbara v. Peru, Preliminary Objections, Merits,
Reparations, and Costs, September 1, 2015, Ser. C No. 299.

45 IACtHR, Case of Bulacio v. Argentina (n. 10); Case of Fornerón and daughter v. Argentina (n. 10); Case
of Furlan and family v. Argentina (n.37); Case of Mendoza et al. v. Argentina (n. 33); Case of López et al.
v. Argentina (n. 36); Case of Brítez Arce et al. v. Argentina (n. 37); and Case of María et al. v. Argentina (n. 36).
46 IACtHR, Case of the Pacheco Tineo family v. Bolivia (n. 9); Case of Angulo Losada v. Bolivia (n.
35); and Case of Valencia Campos et al. v. Bolivia (n. 29).

47 IACtHR, Case of the Hacienda Brasil Verde Workers v. Brazil (n. 38); and Case of the Workers of
the fireworks factory in Santo Antônio de Jesus and their families v. Brazil (n. 38).
48 IACtHR, Case of Atala Riffo and daughters v. Chile (n. 9); and Case of Vera Rojas et al. v. Chile (n. 37).
49 IACtHR, Case of the Mapiripán Massacre v. Colombia (n. 41); Case of the Ituango Massacres
v. Colombia (n. 41); Case of Vélez Restrepo and family v. Colombia (n. 30); Case of the Santo Domingo
Massacre v. Colombia (n. 41); Case of the Afro-descendant Communities displaced from the Cacarica
River Basin (Operation Genesis) v. Colombia (n. 41); Case of Yarce et al. v. Colombia (n.26); Case of
Vereda La Esperanza v. Colombia (n. 26); Case of Carvajal Carvajal et al. v. Colombia (n. 26); Case of
Omeara Carrascal et al. v. Colombia (n. 26); Case of Movilla Galarcio et al. v. Colombia (n. 32); and
Case of Tabares Toro et al. v. Colombia (n. 26).
50 IACtHR,Case of the Girls Yean and Bosico v. Dominican Republic (n. 20); and Case of expelled
Dominicans and Haitians v. Dominican Republic (n. 34).

three cases;51 El Salvador, three cases;52 Guatemala, thirteen cases;53 Honduras,

three cases;54 Mexico, two cases;55 Nicaragua, one case;56 Paraguay, four cases;57
Peru, two cases;58 Uruguay, one case;59 and Venezuela, four cases.60
5. The Right of the Child to Special Protection Measures

in Conjunction with the Right to Life
The Inter-American Court has interpreted the right of children to special pro-
tection in order to address children’s vulnerability61 by requiring States to take
measures additional to those which would be called for in an equivalent case
concerning an adult.62
51 IACtHR, Case of Gonzales Lluy et al. v. Ecuador (n. 10); Case of García Ibarra et al. v. Ecuador (n.
29); and Case of Guzmán Albarracín et al. v. Ecuador (n. 35).

52 IACtHR, Case of Contreras et al. v. El Salvador (n. 32); Case of the Massacres of El Mozote and
Nearby Places v. El Salvador (n. 43); and Case of Rochac Hernández et al. v. El Salvador (n. 32).
53 IACtHR, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (n. 8); Case of
Molina Theissen v. Guatemala (n. 26); Case of Carpio Nicolle et al. v. Guatemala (n. 26); Case of Tiu
Tojín v. Guatemala (n. 26); Case of the Las Dos Erres Massacre v. Guatemala (n. 20); Case of Chitay
Nech et al. v. Guatemala (n. 32); Case of the Río Negro Massacres v. Guatemala (n. 42); Case of
Gudiel Álvarez et al. (“Diario Militar”) v. Guatemala (n. 32); Case of Human Rights Defender et al.
v. Guatemala (n. 26); Case of Véliz Franco et al. v. Guatemala (n. 35); Case of Coc Max et al. (Massacre
of Xamán) v. Guatemala (n. 42); Case of Ramírez Escobar et al. v. Guatemala (n. 36); and Case of the
Village of Los Josefinos Massacres v. Guatemala (n. 42).
54 IACtHR, Case of Servellón García et al. v. Honduras (n. 28); Case Buzos Miskitos (Lemoth Morris
et al.) v. Honduras (n. 38); and Case of Deras García et al. v. Honduras (n. 26).
55 IACtHR, Case of González et al. (“Cotton Field”) v. Mexico (n. 9); and Case of Rosendo Cantú
et al. v. Mexico (n. 35).

56 IACtHR, Case of V.R.P., V.P.C. et al. v. Nicaragua (n. 35).
57 IACtHR, Case of the “Juvenile Reeducation Institute” v. Paraguay (n.33); Case of the Sawhoyamaxa
Indigenous Community v. Paraguay (n. 40); Case of the Xákmok Kásek Indigenous Community v. Paraguay
(n. 20); and Case of Noguera et al. v. Paraguay (n. 39).
58 IACtHR, Case of the Gómez Paquiyauri Brothers v. Peru (n. 10); and Case of Peasant Community
of Santa Barbara v. Peru (n. 44).

59 IACtHR, Case of Gelman v. Uruguay (n. 32).
60 IACtHR, Case of the Barrios family v. Venezuela (n. 30); Case of Uzcátegui et al. v. Venezuela
(n. 30); Case of Landaeta Mejías Brothers et al. v. Venezuela (n. 30); and Case of Mota Abarullo et al.
v. Venezuela (n. 33).
61 “The point becomes more complex when in addition to its sensitivity due to the subject matter—
irregularity, extravagance, marginality, dangerousness, crime—members of an especially vulnerable

human group are involved, often lacking the personal abilities to adequately face certain problems,
due to lack of experience, immaturity, weakness, lack of information or of training; or when they do
not meet the requirements of the law to freely manage their own interests and exercise their rights
in an autonomous manner [ . . . ]. Such is the situation of children or minors, who on the one hand
generally and in a relative manner—as different factors generate diverse situations—lack those per-
sonal requirements, and on the other hand exercise of their rights is restricted or halted, ope legis. It
is natural that in this ‘mine-strewn terrain’ abuse may appear and thrive, often shrouded by paternal
discourse or one of redemption, which can hide the severest authoritarianism.” IACtHR, Juridical
Condition and Human Rights of the Child (n. 10), Judge García Ramírez concurring opinion, para. 8.
62 “The ultimate objective of protection of children in international instruments is the harmonious
development of their personality and the enjoyment of their recognized rights. It is the responsibility
of the State to specify the measures it will adopt to foster this development within its own sphere of
338 Mary Beloff
It has established that States must consider the particular situation of the
child when adopting special protection measures.63 In other words, if other crit-
ical factors—such as family context,64 extreme social exclusion,65 ethnicity,66
gender,67 State custody,68 and/or a special need (for example, one derived from a
disability)69—further augment the child’s vulnerability, the State’s obligations to-
ward this child likewise increase due to the intersecting circumstances affecting
him or her.
The right to life contained in ACHR Article 4 is thus foundational for the ex-
ercise of other rights.70 The Inter-American Court stated that “Article 4 of the
[American] Convention guarantees not only the right of every human being
not to be arbitrarily deprived of life, but also the obligation of the State to take
the necessary measures to establish an adequate legal framework to dissuade
any threat to the right to life.”71 It was in Villagrán Morales et al. v. Guatemala
where the Court began to develop the content of the right to a “dignified life”
competence and to support the family in performing its natural function of providing protection to
the children who are members of the family. [ . . . ] it is important to highlight that children have the
same rights as all human beings—minors or adults—and also special rights derived from their con-
dition, and these are accompanied by specific duties of the family, society, and the State.” IACtHR,
Advisory Opinion OC-17/02, Juridical Condition and Human Rights of the Child (n. 10) paras. 53, 54,
60, and 62); also Case of the “Street Children” (Villagrán Morales et al.) (n. 8), para. 146; Case of Vélez
Restrepo and family v. Colombia (n. 30), para. 226; Case of González et al. (“Cotton Field”) v. Mexico
(n. 9), para. 408; Case of the Girls Yean and Bosico v. Dominican Republic (n. 20), para. 133; Case of the
Xákmok Kásek Indigenous Community v. Paraguay (n. 20), para. 257; and Case of Véliz Franco et al.
v. Guatemala (n. 35), para. 133; among others.
63 IACtHR, Advisory Opinion OC-17/02, Juridical Condition and Human Rights of the Child (n. 10),
para. 61. The Court stressed in the same decision that the protection of children must take into ac-
count “the characteristics of children themselves, and [ . . . ] the need to foster their development,
making full use of their potential,” para. 56.
64 IACtHR, Case of Ramírez Escobar et al. v. Guatemala (n. 36).
65 IACtHR, Case of Servellón García et al. v. Honduras (n. 28), para. 116; and Case of the “Juvenile
Reeducation Institute” v. Paraguay (n. 33); and Case of Mendoza et al. v. Argentina (n. 33), para. 262.
66 IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic (n. 20), among others.
67 Ibidem, para. 134; Case of Rosendo Cantú et al. v. Mexico (n. 35); Case of González et al. (“Cotton
Field”) v. Mexico (n. 9); Case of Véliz Franco et al. v. Guatemala (n. 35); among others.
68 IACtHR, Case of the “Juvenile Reeducation Institute” v. Paraguay (n. 33); Case of Mendoza et al.
v. Argentina (n. 33); Case Mota Abarullo et al. v. Venezuela (n. 33), Matter of children deprived of lib-
erty in the “Complexo do Tatuapé” of Fundação CASA (n. 24); and Matter of the Socio-Educational
Internment Facility (n. 10).
69 In Furlan and family v. Argentina, the Inter-American Court decided that the rights violations
should be analyzed in the light of (1) the international corpus juris for the protection of children,
and (2) the international standards on the protection and guarantee of the rights of persons with
disabilities, IACtHR, Case of Furlan and family v. Argentina (n. 37), para. 124; and in Gonzales Lluy
et al. v. Ecuador, the Court’s found that multiple factors of vulnerability and risk of discrimination
associated with a child’s conditions of gender, extreme poverty, and HIV status had converged in a
cross-cutting manner, IACtHR, Case of Gonzales Lluy et al. v. Ecuador (n. 10), paras. 193, 290, 291,
among others.
70 IACtHR, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (n. 8), para. 144;
Case of the Gómez Paquiyauri Brothers v. Peru (n. 10), para. 128; Case of the Barrios family v. Venezuela
(n. 30), para. 48; among many others.
71 IACtHR, Case of Gonzales Lluy et al. v. Ecuador (n. 10), para. 169; among others.
(vida digna) as the right to the material conditions that are necessary for leading
a dignified existence.
Following this interpretation, the Court indicated that the right to life should not
only be interpreted as a negative right that requires States to refrain from interfering
with and arbitrarily depriving individuals of life but also as a positive right that obligates
States to guarantee the conditions in which children lives meet basic standards of dig-
nity and to provide them with opportunities to realize their life projects.72
Although the Inter-American Court has not specified how States can guar-
antee children’s right to a dignified life, it has asserted that education and health-
care “require various measures of protection and are the key pillars to ensure
enjoyment of a decent life by the children, who in view of their immaturity and
vulnerability often lack adequate means to effectively defend their rights.”73 The
Court has also characterized States’ systematic violence against children as par-
ticularly serious and has established that the rights of children who are “at risk”
can be violated by omission as well as by action.74
Its understanding of ACHR Article 19 in conjunction with Article 4 thus
reveals States’ positive duties toward children who are at risk, particularly in the
area of economic, social, environmental, and cultural rights.75
The Court has also analyzed the right to a dignified life in cases involving
children deprived of their liberty,76 members of Indigenous communities (par-
ticularly in cases also addressing the right to cultural identity),77 minors who
are victims of massive human rights violations in contexts of political or institu-
tional violence,78 and children with special needs.79
In a decision concerning a juvenile detention center, the Inter-American
Court linked the State’s obligation to guarantee the conditions necessary for
72 “We believe that the project of life is consubstantial with the right to existence, and requires for
its development conditions of dignified life, security and integrity of the human person,” ibid., Judges
Cançado Trindade and Abreu Burelli, para. 8.
73 IACtHR, Juridical Condition and Human Rights of the Child (n. 10), para. 86; and Case of the
Xákmok Kásek Indigenous Community v. Paraguay (n. 20), para. 258; among others.
74 IACtHR, Case Gelman v. Uruguay (n. 32), para. 130; and Case of Contreras et al. v. El Salvador (n.
32), para. 90.

75 According to the concurring vote, the right to protection of street children is derived from their
vulnerability and is inextricably linked to the right to life. Later, the Inter-American Court applied
this reasoning in other decisions relating to vulnerable groups: “The protection needs of the weakest,
such as street children, ultimately require an interpretation of the right to life that includes the min-
imum conditions for a dignified life. Hence the inexorable link that we find, in the circumstances
of the present case, between Articles 4 (Right to Life) and 19 (Rights of the Child) of the American
Convention,” ibid., Judges Cançado Trindade and Abreu Burelli concurring opinion, para. 7.
76 IACtHR, Case of the “Juvenile Reeducation Institute” v. Paraguay (n. 33).
77 IACtHR, Case of the Xákmok Kásek Indigenous Community v. Paraguay (n. 20); Case of the
Sawhoyamaxa Indigenous Community v. Paraguay (n. 40); and Case of the Río Negro Massacres v. Guatemala
(n. 42); among others.
78 IACtHR, Case of the Mapiripán Massacre v. Colombia (n. 41), among others.
79 IACtHR, Case of Furlan and family v. Argentina (n. 37); and Case of Gonzales Lluy et al.
v. Ecuador (n. 10).

340 Mary Beloff
children to lead a dignified life to the special position of guarantor that the State
has in connection with persons in detention:
The State has a special role to play as guarantor of the rights of those deprived
of their freedom, as the prison authorities exercise heavy control or command
over the persons in their custody. So there is a special relationship and interac-
tion of subordination between the person deprived of his liberty and the State;
typically the State can be rigorous in regulating what the prisoner’s rights and
obligations are, and determines what the circumstances of the internment will
be; the inmate is prevented from satisfying, on his own, certain basic needs that
are essential if one is to live with dignity.80
In another case, the Court noted that the State’s duty is enhanced if the arrested
person is a child:
State authorities exercise total control over persons under their custody. The
way a detainee is treated must be subject to the closest scrutiny, taking into ac-
count the detainee’s vulnerability; this guarantee function of the State is espe-
cially important when the detainee is a minor. This circumstance gives the State
the obligation to exercise its function as guarantor taking all care required by
the weakness, the lack of knowledge, and the defenselessness that minors natu-
rally have under those circumstances.81
It has also invoked the principle of the best interests of the child when discussing
the right of children to special protection measures and the right to life:
In the case of the right to life, when the person the State deprives of his or her
liberty is a child [ . . . ], it has the same obligations it has regarding to any per-
sons, yet compounded by the added obligation established in Article 19 of the
American Convention. On the one hand, it must be all the more diligent and
responsible in its role as guarantor and must take special measures based on the
principle of the best interests of the child. On the other hand, to protect a child’s
life, the State must be particularly attentive to that child’s living conditions
while deprived of his or her liberty, as the child’s detention or imprisonment
does not deny the child his or her right to life or restrict that right.82
In other cases, however, the Court does not refer to the duty that States have
to ensure dignified living conditions but instead to their duty to prevent acts
80 IACtHR, Case of the “Juvenile Reeducation Institute” v. Paraguay (n. 33), para. 152; Case of Mendoza
et al. v. Argentina (n. 33), para. 188; Case of Mota Abarullo et al. v. Venezuela (n. 33) a, para. 88.
81 IACtHR, Case of Bulacio v. Argentina (n. 10), para. 126.
82 IACtHR, Case of the “Juvenile Reeducation Institute” v. Paraguay (n. 33), para. 160.
threatening children’s right to life.83 In the case of Juvenile Reeducation Institute

v. Paraguay, it added a requirement to the right to decent living conditions84
when the vulnerable population consists of children who are deprived of liberty.
Additionally, in the case of Xákmok Kásek Indigenous Community v. Paraguay,
the Court evaluated measures the State had adopted to comply with its duty to guar-
antee the right to life of the members of the Xákmok Kásek Indigenous commu-
nity. It considered both the positive and negative obligations of the State relating,
on the one hand, to the right to a dignified life, and, on the other, to the right not to
be arbitrarily deprived of life.85 It also interpreted the right to a dignified life to re-
quire the State to provide water,86 food,87 healthcare,88 and education.89
Finally, in a case involving a girl with HIV, the Inter-American Court found
that the harm to her health that had resulted from the disease and the danger it
posed to her life impaired the child’s right to life.90 It also found that the State had
violated the negative obligation not to interfere with the girl’s life even though
the girl’s blood had been contaminated by a private actor.91
6. The Right of the Child to Special Protection Measures

in Relation to Other Rights
The Inter-American Court has analyzed the right of the child to special pro-
tection measures in connection with various other rights. It has considered the
scope of the right to personal integrity and the right to health in cases of chil-
dren deprived of their liberty92 and of children with special needs.93 It has also
83 Thus, compliance with ACHR Article 4 ACHR “not only requires that a person not be deprived
arbitrarily of his or her life (negative obligation) but also that the States adopt all the appropriate
measures to protect and preserve the right to life (positive obligation) [ . . . ] not only to prevent,
try and punish those responsible for deprivation of life as a consequence of criminal acts, in gen-
eral, but also to forestall arbitrary executions by its own security agents.” IACtHR, Case of the Gómez
Paquiyauri Brothers v. Peru (n. 10), para. 129; also Case of the “Street Children” (Villagrán Morales
et al.) v. Guatemala (n. 8), paras. 139, 144, and 145.
84 IACtHR, Case of the “Juvenile Reeducation Institute” v. Paraguay (n. 33), para. 164, also para.
161; and Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (n. 8), para. 196.
85 IACtHR, Case of the Xákmok Kásek Indigenous Community v. Paraguay (n. 20), para. 193.
86 Ibid., para. 194/196.
87 Ibid., para. 258, also 197/202.
88 IACtHR, Case of the Sawhoyamaxa Indigenous Community v. Paraguay (n. 40), para. 171; also
Case of the Xákmok Kásek Indigenous Community v. Paraguay (n. 20), para. 260.
89 IACtHR, Case of the Xákmok Kásek Indigenous Community v. Paraguay (n. 20), para. 209/213.
The Court linked the right to life to the stay on ancestral land (Case of the Sawhoyamaxa Indigenous
Community v. Paraguay (n. 40), Judge Cançado Trindade concurring opinion, para. 28).
90 IACtHR, Case of Gonzales Lluy et al. v. Ecuador (n. 10), para. 190.
92 IACtHR, Case of the “Juvenile Reeducation Institute” v. Paraguay (n. 33); and Case of Mendoza
et al. v. Argentina (n. 33).

93 IACtHR, Case of Furlan and family v. Argentina (n. 37); and Case of Gonzales Lluy et al.
v. Ecuador (n. 10).

342 Mary Beloff
evaluated whether a State violated the right of the child to be heard vis-à-vis the
right to personal integrity and to health.
The Court has analyzed ACHR Article 19 extensively in relation to the right
to family protection in cases involving discrimination and arbitrary interference
with privacy, family life, and child custody,94 and it has established that these
violations can occur in contexts such as intercountry adoption95 and contact
with parents deprived of liberty.96
It has also considered the rights of Indigenous children to special measures and to
family protection97 by recognizing “( . . . ) the special significance that the coexistence
of the family has in the context of an indigenous family, which is not limited to the fa-
milial nucleus, but also includes the distinct generations that make up the family and
includes the community of which the family forms a part.”98 In addition, the Court has
also discussed the right of Indigenous children to their cultural identity.99
In other cases, the Inter-American Court has applied ACHR Article 19 when
children have been separated from their parents, which has occurred in contexts
of armed conflict,100 institutional violence and political crises,101 enforced
disappearances,102 and discrimination on the basis of their migrant or asylum-
seeker status.103
It has also ruled on the rights of the child to special protection with respect to
privacy and private property,104 the best interests of the child,105 residential care,106
the right to be heard, the right to movement and residence,107 the right to
94 IACtHR, Case of Atala Riffo and daughters v. Chile (n. 9); and Case of Fornerón and daughter
v. Argentina (n. 10).

95 IACtHR, Case of Ramírez Escobar et al. v. Guatemala (n. 36).
96 IACtHR, Case of López et al. v. Argentina (n. 36).
97 IACtHR, Case of the Las Dos Erres Massacre v. Guatemala (n. 20); and Case of the Río Negro
Massacres v. Guatemala (n. 42).

98 IACtHR, Case of Chitay Nech et al. v. Guatemala (n. 32), para. 159.
99 IACtHR, Case of Chitay Nech et al. v. Guatemala (n. 32); Case of the Río Negro Massacres
v. Guatemala (n. 42); Case of the Sawhoyamaxa Indigenous Community v. Paraguay (n. 40); Case of
the Xákmok Kásek Indigenous Community v. Paraguay (n. 20); and Case of the Río Negro Massacres
v. Guatemala (n. 42).
100 Among others, IACtHR, Case of Rochac Hernández et al. v. El Salvador (n. 32); Case of the Las
Dos Erres Massacre v. Guatemala (n. 20); and Case of the Río Negro Massacres v. Guatemala (n. 42).
101 Among others, IACtHR, Case of Vélez Restrepo and family v. Colombia (n. 30); and Case of the
Barrios family v. Venezuela (n. 30).

102 Among others, IACtHR, Case of Contreras et al. v. El Salvador (n. 32), para. 116; Case Gelman v.
Uruguay (n. 32); and Case of Gudiel Álvarez et al. (“Diario Militar”) v. Guatemala (n. 32).
103 IACtHR, Case of expelled Dominicans and Haitians v. Dominican Republic (n. 34); Case of the
Pacheco Tineo family v. Bolivia (n. 9); and Advisory Opinion OC-21/14 (n. 42).
104 IACtHR, Case of Furlan and family v. Argentina (n. 37); Case of the Massacres of El Mozote and
Nearby Places v. El Salvador (n. 43); and Case of Peasant Community of Santa Barbara v. Peru (n. 44).
105 IACtHR, Case of Atala Riffo and daughters v. Chile (n. 9); Case of Fornerón and daughter v.
Argentina (n. 10); and Case of Ramírez Escobar et al. v. Guatemala (n. 36).
106 IACtHR, Case of Atala Riffo and daughters v. Chile (n. 9); Case of Ramírez Escobar et al.
v. Guatemala (n. 36).

107 Among others, IACtHR, Case of the Barrios family v. Venezuela (n. 30); Case of Vélez Restrepo
and family v. Colombia (n. 30); Case of the Girls Yean and Bosico v. Dominican Republic (n. 20); Case of
the Mapiripán Massacre v. Colombia (n. 41); Case of expelled Dominicans and Haitians v. Dominican
Republic (n. 34); and IACtHR, Case of the Santo Domingo Massacre v. Colombia (n. 41).
physical, mental, and moral integrity,108 the right to honor and dignity,109 the
right to identity,110 the right to legal personality,111 the right to a name,112 and the
right to nationality.113
As for the right to education, although several cases related to children’s ed-
ucation had previously reached the Court,114 it was not until the 2015 case of
Gonzales Lluy et al. v. Ecuador that the Inter-American Court held a State directly
responsible for the violation of Article 13 (Right to Education) of the Protocol of
San Salvador. This decision implies a significant advance in the Court’s jurispru-
dence on children’s right to special protection.115
The Inter-American Court has also analyzed the right of children to special protec-
tion in relation to the rights to liberty, judicial guarantees, and judicial protection, as
well as in relation to the right to protection and access to justice in a reasonable time.116
It most important achievement in the context of juvenile justice has been to
derive from the right of children to special protection (ACHR Article 19) the
need for a differentiated comprehensive criminal response for juveniles, the con-
tent of which was developed in subsequent rulings.117
Finally, the Court has also analyzed several cases concerning the right to spe-
cial protection of child victims of sexual violence118 and child refugees, migrants,
and asylum seekers.119
7. The Limits and Possibilities of the Inter-American System

for Advancing the Rights of Children
Having reviewed the Inter- American Court’s contentious cases, advisory

opinions, and provisional measures related to child rights under Article 19 of the
108 IACtHR, Case of the Barrios family v. Venezuela (n. 30); Case of Rosendo Cantú et al. v. Mexico (n.
35); Case of Véliz Franco et al. v. Guatemala (n. 35); and Case of Contreras et al. v. El Salvador (n. 32).
109 IACtHR, Case of Rosendo Cantú et al. v. Mexico (n. 35); Case of V.R.P., V.P.C. et al. v. Nicaragua
(n. 35); Case of Contreras et al. v. El Salvador (n. 32); Case of Atala Riffo and daughters v. Chile (n. 9);
and Case of the Hacienda Brasil Verde Workers v. Brazil (n. 38).
110 IACtHR, Case Gelman v. Uruguay (n. 32); and Case of Serrano Cruz Sisters v. El Salvador (n. 24),
dissenting opinion of Judges Cançado Trindade and Ventura Robles.

111 IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic (n. 20); Case of expelled
Dominicans and Haitians v. Dominican Republic (n. 34); and Case Gelman v. Uruguay (n. 32).
112 IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic (n. 20); Case Gelman v. Uruguay
(n. 32); Case of the Las Dos Erres Massacre v. Guatemala (n. 20); Case of expelled Dominicans and
Haitians v. Dominican Republic (n. 34); and Case of Ramírez Escobar et al. v. Guatemala (n. 36).
113 Among others, IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic (n. 20); Case of
expelled Dominicans and Haitians v. Dominican Republic (n. 34); and Case Gelman v. Uruguay (n. 32).
114 Among others, IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic (n. 20); and
Case of the Xákmok Kásek Indigenous Community v. Paraguay (n. 20).

115 IACtHR, Case of Guzmán Albarracín et al. v. Ecuador (n. 35).
116 See (n. 33).
117 See (n. 33).
118 See (n. 35).
119 See (n. 34).
344 Mary Beloff
American Convention, I now turn to the question of to what extent the Court’s
legal developments have effectively advanced the recognition and protection of
children’s rights in practice.
Clearly, the Court’s development of legal standards concerning the protec-
tion of children does not prevent their rights and guarantees from ever being
violated. However, there are areas where the impact of its decisions can be more
clearly seen, such as the field of juvenile justice.
In order to evaluate the repercussion of an Inter-American Court’s decision,
it is crucial to first identify the reason why the case was brought before the Inter-
American System. Consequently, when assessing the effectiveness (or ineffec-
tiveness) of the Inter-American System in advancing children’s rights, it should
be determined whether litigators at the supranational level conceive their prac-
tice as an end in itself to secure justice and reparations for victims which were not
granted to them at the domestic level, or if they conceive it as a means to achieve
ulterior ends. These additional purposes may be specific or structural, focused
or comprehensive, narrow or ambitious. They may also include legal or institu-
tional reforms that among other things may change public policies, budget allo-
cation, or even the structure of government itself.
Failure to achieve the objectives that these actors set out to accomplish with
the presentation of a claim can produce criticism and/or generate frustration
among those who promoted it and/or among those who observe the functioning
of the system from academia or politics. These dynamics may occur even when
the Inter-American Court issues a decision that is favorable to children’s rights.
This may be the case when it comes to rulings related to violence against children
in the context of the fight against organized crime in Central America. Despite
these decisions of the Inter-American Court that determined the international
responsibility of States for violation of ACHR Article 19 in these cases, violence
against children in situations of marginalization and exclusion in Guatemala, El
Salvador, and Honduras has worsened, and tolerance for practices that violate
child rights by the security forces and the army has been reinforced. Another
example is the increased discrimination in the Dominican Republic against the
Haitian or Haitian-descendant population, including children, that persisted
after the Court decision that recognized the gravity of the issue in the country.
Frustration with the lack of effectiveness of cases that do determine the re-
sponsibility of the State for the violation of children's rights is due to an ex-
pectation of structural impact, as opposed to an approach that aims at victims
obtaining a judgment that recognizes that the State violated their rights and that
establishes reparations. Both viewpoints respond to a substantially different con-
ception of the functions and legitimate activities of jurisdictional bodies.
Given that the strategies and actions to be implemented differ depending on
what is expected from a supranational adjudicative system, it could be useful
to return to the question of what petitioners submitting cases before the Inter-
American System seek to accomplish. In terms of achieving the purpose of jus-
tice, it is of the utmost importance that victims obtain sentences that determine
the international responsibility of the State for unlawful acts committed against
them and order reparations. The mere fact that a supranational court such as
the Inter-American Court declares a State responsible for the violation of the
rights of one child and orders reparations is of extraordinary value. It provides
individual (or collective) justice at the same time that it recognizes the human
dignity of the victim(s).
A different scenario would take place if a case was litigated with a strategic
purpose and achievements were evaluated in that regard. Here progress is less
noticeable, to put it mildly: the last two decades of litigation for the rights of chil-
dren have proven that an Inter-American Court judgment alone is unlikely to
have a transformative impact in the lives of the continent’s children, especially
those in the most disadvantaged situations.
An additional problem arises in connection with the instrumentalization of
child victims (or their families or communities) who may not share this broader
vision of change, instead seeking simply to obtain justice at the individual level.
In order to avoid a conflict of interests and expectations, it is essential for organ-
izations to consider the opinions of the victim(s) and their families. This poses
a unique dilemma: children are either universally considered to be moral agents
without competence or, once they grow up, persons with reduced competence
until they reach adulthood. How to determine the best way to claim a child’s right
and how to hear his or her opinion freely and without manipulation of any kind
constitutes the greatest challenge facing any international mechanism created
to protect his or her rights today. It is also crucial that adults evaluate whether
bringing a case before the Inter-American System is the best option available to
effectively protect the rights at stake. Other faster and potentially more effective
means can provide more suitable solutions for the enforcement of the rights of
the children involved in a given case.
Another important element to consider when assessing the Inter-American
Court’s transformative impact on the development of children’s rights is time.
As the cases of Fornerón and daughter v. Argentina and Furlan and family
v. Argentina demonstrate, the timeline of the Inter-American System differs
from that of child victims. It is an undisputed fact that children do not experi-
ence time as adults do. The Court’s proceedings and legal reasoning often does
not coincide with the needs of child victims. If the Court were more sensitive to
time in child’s rights proceedings, it could more effectively ensure the right of
children to special protection.
Tensions between procedural requirements and the satisfaction of the best
interests of the child—recognized as a guiding principle in any decision involving
346 Mary Beloff
a child—have been thoroughly discussed. Litigating children’s rights cases before

the Inter-American System appears counterintuitive because by the time a de-
cision is obtained, the victim will almost inevitably have become an adult. For
this reason, other mechanisms that might be more effective in advocating for
children’s rights should be explored. The Inter-American Court could prove that
it takes children’s rights seriously by finding alternatives to the traditional, slow
methods of processing of individual petitions.
One mechanism that could be reinterpreted or redesigned to make the IAHRS
more sensitive to the rights of children could be a more intensive use of precau-
tionary or provisional measures. These measures could serve as an efficient al-
ternative to the litigation of individual petitions. Precautionary and provisional
measures respond to grave and urgent situations, aim to avoid irreparable harm,
and have a more immediate effect.
Eligio RESTA120 argues that when judging cases involving children, one is
always wrong or, at the least, one cannot be sure if one is right, because only
time will tell if the resolution reached in a child’s case was the right decision.
Simultaneously, one cannot stand still in the face of violations of the human
rights of the most vulnerable among us. Children whose rights are violated
cannot wait. They need urgent answers in ultra-fast times.
To avoid the drawn-out individual petitions procedure, the use of precau-
tionary or provisional measures in serious, urgent children’s rights cases should
be reconsidered and reformulated. In order to evaluate whether a case is serious
and urgent, all the circumstances of the child and his or her vulnerability should
be assessed. Vulnerability is derived from the condition of being a child, as well
as from family or social context, ethnic origin, special needs, gender, extreme
social exclusion, lack of care, and state custody, among other things. All these
factors should enter the analysis of a child’s right to special protection.
Another aspect to consider when evaluating the Inter-American System’s
effectiveness in the promotion and protection of children’s rights is the rela-
tionship between substance and procedure. The IAHRS’s individual petitions
mechanism, which is its traditional and primary method of addressing rights
violations, is so inadequately designed for the defense of children’s rights that it is
almost incompatible with ACHR Article 19. The individual petition mechanism
requires domestic remedies to be exhausted, and itself involves lengthy proceed-
ings, during which time the child becomes an adult. The procedure thus weakens
the ability of the Inter-American System to handle the substance of these cases.
For this reason, the IAHRS’s restrictions on the issuance of precautionary and
provisional measures concerning economic, social, environmental, and cultural
120 Eligio Resta, La infanzia ferita (Laterza, Bari 1998).

rights are unjustifiable in relation to cases involving child victims. The imme-
diate protection of children at risk requires that criteria to adopt precautionary
measures be differentiated from general criteria governing adult cases. Applying
the same rule for adults and for children here would empty the right to special
protection of its content.
In order to fairly balance protection and autonomy, freedom and develop-
ment, the IAHRS must indicate not only what States should stop doing in order
not to interfere with or harm children (negative obligations) but also what
States should do to guarantee children dignified living conditions (positive
obligations).
Comprehensively analyzing both inter-American and UN human rights
treaties that provide for children’s rights, as the Inter-American Court has done
in its jurisprudence on ACHR Article 19, led to the articulation of obligations that
reach beyond the mere defense of negative rights, as these new understandings
require States to establish public policies for groups that demand special pro-
tection. Nevertheless, ACHR Article 19 does not establish the content nor the
limits of special protection measures, the methodology of their implementation,
or the branch of the State (judicial, legislative, or executive) that should enact and
enforce them. As such, the jurisprudence of the Inter-American Court on the
rights of the child is at the moment an abstract, unfulfilled promise. To begin to
fulfill the promise—by means of an original and robust hermeneutic—the Inter-
American System must strengthen its institutional mechanisms for effectively
guaranteeing children’s rights.
II.8
The Riffo-Salinas Case
Human Rights of Older Persons Consolidated in
the Inter-American System
By Aída Díaz-Tendero
1. Introduction
According to the Inter-American Convention on the Protection of the Human

Rights of Older Persons (ICPHROP)1 and the dominant trend in gerontology, aging
is a gradual process that develops during the course of life and involves biolog-
ical, physiological, psychosocial, and functional changes of various consequences,
which are associated with dynamic and permanent interactions between the subject
and his or her environment. For its part, old age is a social construction2 referring to
the last stage of the life course in the sense that both old age and the problems faced
by the elderly3 are socially constructed. In other words, aging is a verifiable or objec-
tive fact, while old age is a subjective concept.4
The culture of old age, the individual and collective perceptions and ideas about
what it is to be an older person are under permanent construction and deconstruc-
tion, and the age groups and generations that today are older people have an impact
on the paradigm of old age that subsequent age groups and generations will experi-
ence through their reproduction or rupture of the stereotype.
1 Organization of American States (OAS), Inter-American Convention on the Protection of the
Human Rights of Older Persons (A-70), General Assembly, forty-fifth regular session, Washington,
DC, June 15, 2015.
2 Peter Berger and Thomas Luckmann, The Social Construction of Reality (Anchor 1967).
3 In more developed countries, the lower age limit is sixty-five years of age, while in developing
countries it is sixty years of age. Thus, in the ICPHROP, the age limit is sixty years or older, unless
domestic law determines a lower or higher base age, provided that it does not exceed sixty-five years.
This concept includes, among others, the concept of elderly person, which is the concept used in the
Bolivian legislation (Article 2 of the General Law for the Elderly reads: “[B]‌eing holders of the rights
expressed therein the elderly persons of sixty years of age or older, in the Bolivian territory” (Law No.
369 General Law for the Elderly Persons, Supreme Decree 1807, May 1, 2013)).
4 For a dissident position with respect to the aforementioned dominant criterion, see Aída Díaz-
Tendero, “Epílogo,” in Aída Díaz-Tendero (coord.), Un pacto con la soledad. Envejecimiento y vejez en
la literatura en América Latina y el Caribe (Tirant Lo Blanch 2019).
Aída Díaz-Tendero, The Riffo-Salinas Case In: The Impact of the Inter-American Human Rights System. Edited by: Armin
von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press.
© Aída Díaz-Tendero 2024. DOI: 10.1093/oso/9780197744161.003.0019
The Riffo-S alinas Case 349
The treatment of the elderly by the law, or in other words, the legal
formulations5 on the elderly, reflect the social constructs on old age of previous
cohorts and generations. It is for this reason that there is a gap between public
policies and legal frameworks that were designed for a short old age6 that was
conceived as one of physical, economic, and social deprivation and the needs
of today’s older persons, who in many cases live their old age in conditions of
health, productivity, autonomy, and well-being during a stage that extends over
decades.7 It should be noted that this new paradigm does not contradict the
recognition of the existence of frail and vulnerable older persons for different
reasons and circumstances,8 nor their corresponding need for protection.
The adoption of an inclusive perspective, encompassing the multiple forms of
old age, is an essential part of the human rights approach to older persons, which
has shown itself to be notably more agile in adapting to the new realities and
new paradigms of old age. The visibility of older persons as subjects of rights is
the result of certain phenomena such as the increase in the relative and absolute
number of older persons in the world, an irrefutable fact also in the case of Latin
America and the Caribbean.9 At the same time, the evolution in the development
of human rights, after normatively consolidating the rights of citizens, led to the
creation of instruments of various kinds for specific groups, including those ded-
icated to the elderly.
Before the Protocol of San Salvador, there were few inter-American norms
directly protecting the rights of older persons. Those were limited to the right
to social security (American Declaration on the Rights and Duties of Man,
art. XVI) and the prohibition of the death penalty (American Convention on
Human Rights, art. 4.5). The Protocol introduced broader protection, de-
termining that “[e]‌veryone has the right to special protection in old age” and
establishing the duty to progressively take the necessary steps to ensure proper
housing, food, medical care, work, and quality of life (art. 17). After the Protocol,
5 Riccardo Guastini, “Interpretation and legal construction” [2015] 43 Isonomia 11–48.

6 Life expectancy in the Latin American and Caribbean region was 51.4 years in the five-year pe-
riod 1950–1955 (Economic Commission for Latin America and the Caribbean, Observatorio
Demográfico 2019. Proyecciones de población, Santiago de Chile, ECLAC 2020).
7 Life expectancy in the Latin American and Caribbean region is 76.1 years in the five-year period
2020–2025 (ibid.).
8 Antonio Martínez Maroto, “Aspectos legales y consideraciones éticas básicas relacionadas
con las personas mayores,” in Rocío Fernández-Ballesteros (dir.), Gerontología social (Ediciones
Pirámide 2009).
9 Latin American and Caribbean aging is characterized by the high speed at which the aging
process will occur in relation to the pioneer countries in the demographic transition (such as the
European countries), although each country within the subset of the sample will carry out these
changes with a different chronology, with decades of difference between them. In the coming years,
the proportion of older persons in the total population of the countries of the region will double
and even triple (Economic Commission for Latin America and the Caribbean, Demographic
Observatory 2015. Population projections, Santiago de Chile, ECLAC 2016).
350 Aída Díaz-Tendero
other inter-American treaties also introduced direct protections for the rights
of older persons (Inter-American Convention on the Prevention, Punishment,
and Eradication of Violence against Women, art. 9; Inter-American Convention
against All Forms of Discrimination and Intolerance, art. 1.1).
The year 2015 marked a shift regarding the rights of older persons in the Inter-
American System. The adoption of the ICPHROP was a milestone, not only
in the region but also the world. The treaty places the Inter-American System
at the vanguard of international human rights law, in so much as it establishes
biding obligations specifically targeted at protecting the rights of older persons,
adopting a holistic and inclusive approach. It has catalyzed the protection of
the rights of older persons even for States that are yet to ratify the ICPHROP,
fostering holistic protection. For example, in Poblete Vilches et al. v. Chile, the
Inter-American Court relied on the ICPHROP to interpret the American
Convention on Human Rights, concluding that the right to nondiscrimination
applies to discriminatory conduct based on older age.
In this context, this chapter focuses on the analysis of the Riffo Salinas case,
judged on February 28, 2018, by the Plurinational Constitutional Court of
Bolivia. This chapter questions some aspects of the protection of the human
rights of older persons10 in the Inter-American System, aiming to demonstrate
how inter-American jurisprudence and norms impact on our national courts of
justice.
Section 2 assesses the relevance of this judgment in several ways: first, in the
dimension of its significance for the jurisprudence on older persons as subjects of
law; second, in terms of whether it integrates or excludes the ad hoc instrument
available to the Inter-American System for the protection of the human rights of
older persons, the ICPHROP;11; third, by the degree of integration or exclusion
of the inter-American standards established by the Inter-American Court and
Commission on Human Rights; fourth, by the degree to which it constitutes evi-
dence of the multilegal system, converging national and inter-American norms;
and fifth, by the type of social constructions on old age and the elderly that derive
from the case.
Section 3 is devoted to an in-depth examination of the articles of the ICPHROP
that are used in the Riffo Salinas judgment, in order to determine how they go be-
yond, or not, the interpretations of these articles made in the judgment.
10 In Bolivian legislation, the concept used is that of an elderly person (Article 2 of the General
Law of the Elderly reads: “[B]‌eing holders of the rights expressed therein the elderly persons of sixty
or more years of age, in the Bolivian territory” (Law No. 369 General Law of the Elderly Persons,
Supreme Decree 1807, May 1, 2013)).
11 Organization of American States, Inter-American Convention on Protecting the Human Rights
of Older Persons, June 15, 2015, T.S. No. A-70.

Section 4 addresses the cases on older persons in which the Inter-American

Court of Human Rights established the violation of the same rights violated in
the Riffo Salinas case.
Section 5 focuses on identifying the social constructions on old age and the
elderly in the judgments of the Inter-American Court. Some of these social
constructions will also be indicated in a cross-cutting manner throughout the
sections.
Section 6 summarizes the contributions of the chapter, although the final
assessment of whether the Riffo Salinas case represents a good practice for the
countries that are part of the Inter-American System will be made by the reader
after reviewing this chapter and, of course, the judgment itself.12
In general, this judgment shows the coexistence, antagonism, and/ or
overlapping of two phenomena: on the one hand, the permanent updating of in-
ternational law on the protection of rights and in this case, the adaptation to the
subjects of law that are the elderly today; and on the other hand: the permanence
of jurisprudential interpretations that obey social constructions on old age that
correspond to previous stages of history.
2. Riffo Salinas Case Judgment
Marco Antonio Riffo Salinas, a seventy-eight-year-old man prosecuted for ma-

terial and ideological falsehood and others, was granted by the Eighth Criminal
Sentencing Court of the Department of La Paz, Bolivia, the cessation of his pre-
ventive detention. The cessation was appealed by the plaintiff and the Second
Criminal Chamber of the Departmental Court of Justice of La Paz, which or-
dered the enforcement of the detention.
In February 28, 2018, the Plurinational Constitutional Court’s Second
Chamber annulled the challenged resolutions, ordering the issuance of a new
resolution, which should respect his constitutional rights and guarantees, and
provided for the immediate release of Mr. Riffo Salinas.
The legal grounds essentially revolved around the error of not taking into ac-
count that the subject was an elderly person. The decision is based on the fol-
lowing arguments: differential and intersectional approach to the rights of the
elderly; exceptionality of the preventive detention of elderly persons; the prin-
ciple or test of proportionality in the application of preventive detention based
12 Plurinational Constitutional Ruling 0010/2018-S2, Sucre, February 28, 2018, La Paz, file 21259-
2017-43-AL, https://jurisprudenciaconstitucional.com/sentencias/19232-sentencia-constitucional-
0010-2018-s2 (accessed December 29, 2022).
on an intersectional approach; criteria for the application of preventive detention

of elderly persons; and analysis of the specific case.
On all points, except for the criteria, the ruling is based on the ICPHROP, as well
as on Bolivian domestic law.13 In the differential and intersectional approach14 of
the legal grounds as well as in the exceptionality of the preventive detention of older
adults, reference is made to Article 5 (equality and nondiscrimination on grounds of
age) of the aforementioned ICPHROP to underline the importance of intersection
and multiple discrimination:
The States Parties shall develop specific approaches in their policies, plans
and legislation on aging and old age, in relation to older persons in vulnerable
conditions and those who are victims of multiple discrimination (...) persons
deprived of their liberty.
The right to liberty and security of person of the elderly is upheld on the basis
of Article 13 (right to personal liberty) of the aforementioned instrument, which
mentions:
States Parties (...) shall promote alternative measures to deprivation of liberty, in

accordance with their domestic legal systems.
Regarding Bolivian legislation, although there are rules such as the General Law
on Older Persons (2013) that guarantee and protect the rights of this age group, and
where special protection is established, the fact is that the interpretation of these
rules by the Plurinational Constitutional Court of Bolivia is based primarily on
the ICPHROP and complementarily on domestic law.15 As for the analysis of the
specific case, the ruling is based on Article 13 of the aforementioned instrument,
which promotes the adoption of criminal precautionary measures other than those
involving deprivation of liberty.
The judgment does not refer to any of the Inter-American Court judgments
related to older persons that predate Riffo Salinas (Five Pensioners v. Peru (2001);
Yakye Axa v. Paraguay (2005); Acevedo Buendía et al. v. Peru (2009); and García
13 Constitución Política del Estado Plurinacional (2009), Ley General de las Personas Adultas
Mayores (2013), Código De Procedimiento Penal (1999).

14 Intersectionality describes micro processes with respect to how each individual and group
occupies a social position in interlocking structures of oppression. The dimensions and relationships
of class, gender, and race/ethnicity must be studied together (Paula Dressel et al., “Gender, Race,
Class, and Aging: Advances and Opportunities,” in Meredith Minkler and Carroll L. Estes, Critical
Gerontology: Perspectives from Political and Moral Economy (Baywood 1999).
15 The ruling cites Articles 3, 5.b. and c., 67.I, and 68 of the General Law on Older Persons (2013);
Articles 13.I and 125 of the Political Constitution of the State (2009); and Articles 233.2 and 234 of the
Code of Criminal Procedure (1999).
Lucero et al. v. Chile (2013).16 However, other rulings and votes issued by that in-
ternational tribunal are present. In relation to the argument of the exceptionality
of the preventive detention of elderly people, there is the intersectional approach
that was introduced in the Inter-American System as an interpretation criterion
on violence against women, whose application was later extended to the anal-
ysis of discrimination of other groups in vulnerable situations. In the principle or
test of proportionality in the application of pretrial detention based on an intersec-
tional approach, the Inter-American Commission established the following in its
Report on the Use of Pretrial Detention:
When courts resort to pretrial detention without considering the application

of other less burdensome precautionary measures, given the nature of the facts
under investigation, pretrial detention becomes disproportionate.17
In turn, the Inter-American Court in its 2016 judgment on Merits, Reparations

and Costs in the Andrade Salmón v. Bolivia case, reiterates what was mentioned
in the Chaparro Álvarez and Lapo Íñiguez v. Ecuador case (2007):
That the purpose of the measures that restrict this right (...) will not impede
the development of the procedure or evade the action of justice . . . that they
are absolutely indispensable (...) and that they are measures that are strictly
proportional in such a way that the sacrifice inherent to the restriction of the
right is not exaggerated or disproportionate to the advantages obtained through
such restriction and the fulfillment of the purpose pursued.18
Proportionality is also upheld in the Bolivian ruling in the reasoned opinion of

Judge Sergio García Ramírez in relation to the judgment of the IACHR Court in
the aforementioned case versus Ecuador, which states:
Criminal precautionary measures, like any other restriction of fundamental

rights, should be: a) exceptional and not ordinary (...) b) justified within
a precise framework of reasons and conditions that give them legitimacy
and rationality; c) agreed upon by an independent jurisdictional authority
(...); d) indispensable; e) proportional; f) limited; g) periodically reviewable;
16 These cases will be reviewed in section 4, “In What Aspects Do the IACHR Court Cases on
Older Persons Go Further than the Bolivian Case?,” infra.

17 IACHR, Report on the Use of Pretrial Detention in the Americas, OEA/SER.L/V/II, Doc. 46/13,
December 30, 2013, para. 162.

18 Caso Andrade Salmón v. Bolivia [2016], IACtHR, Ser. C No. 330, para. 147.
h) revocable or replaceable (...) All this (...) has special emphasis if one thinks of
the most severe of these: the precautionary deprivation of liberty.19
An important aspect that forms a central part of the grounds of the ruling of
the Bolivian Plurinational Constitutional Court in the Riffo Salinas case is the
right to health, which had been ignored by the Second Criminal Chamber of the
Departmental Court of Justice of La Paz.
3. How Does the ICPHROP Go beyond the Bolivian Case?
The ICPHROP was signed on June 15, 2015, within the OAS and entered into
force on January 11, 2017. To date, it has been ratified by Uruguay, Costa Rica,
Bolivia, Chile, Argentina, El Salvador, and Ecuador and requires three more
ratifications for the follow-up mechanisms established therein to become op-
erational. Just as well, the Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence against Women (Belém do Pará
Convention) requires special consideration for elderly women (art. 9), while
the Inter-American Convention against All Forms of Discrimination and
Intolerance prohibits age-based discrimination (art. 1.1).
The ICPHROP is a cutting-edge instrument that introduces new concepts on
aging and includes the civil, political, and social rights of the elderly.20 It takes
inequality into account—Latin America and the Caribbean is the most unequal
region on the planet—as well as multiculturalism and multiple forms of aging.
By determining that States must take awareness-rising measures, the treaty aims
to target the root causes of discrimination against older persons. It also includes
a progressive agenda,21 recognizes the right to palliative care,22 and adopts a
19 Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador Bolivia [2007], IACtHR, Ser. C No. 170,
reasoned opinion of Judge Sergio Ramírez, para. 7.

20 For a review of the civil, political and social dimensions of the ICPHROP, see Aída Díaz-
Tendero, “Dimensiones civil, política y social de la Convención Interamericana sobre la Protección

de los Derechos Humanos de las Personas Mayores,” in Eduardo Ferrer Mac-Gregor and Luis Raúl
Guerrero (coords.), Derechos del Pueblo Mexicano: México a través de sus Constituciones, vol. V,
Transversalidad constitucional con prospectiva convencional (Instituto de Investigaciones Jurídicas/
Miguel Ángel Porrúa 2016), 187–202.
21 Suffice it to mention the inclusion in the right to equality and nondiscrimination on grounds of
age (art. 5) of victims of multiple discrimination, such as persons of diverse sexual orientations and
gender identities (see section 3.1 infra); the inclusion in the right to health (art. 19) of public policies
on sexual and reproductive health of the elderly (see section 3.2 infra); the inclusion in the right to life
and dignity in old age (art. 6) of palliative care and palliative care for the elderly (see section 3.3 infra);
and the inclusion in the right to life and dignity in old age (art. 6) of palliative care and other measures
to avoid unnecessary suffering and futile and useless interventions, in accordance with the right of the
elderly person to express informed consent (art. 11) in the field of health (see section 3.2 infra).
22 See Tamar Ezer, Diederik Lohman, and Gabriela B. de Luca, “Palliative Care and Human
Rights: A Decade of Evolution in Standards” [2018] 55 Journal of Pain & Symptom Management 163,
concept of “older person.”23 Although there is room for improvement,24 there is

also a gender perspective.25
This section will specifically review in what sense Articles 5 (equality and
nondiscrimination on grounds of age) and 13 (right to personal liberty) go be-
yond their use in the Riffo Salinas judgment, and what other dimensions of the
ICPHROP do the rights to liberty, life, health, and security that the judgment
considers to have been violated appear in the ICPHROP.
3.1. Equality and Nondiscrimination on the Basis of Age and

the Right to Personal Freedom
The broadening of the criteria for discrimination26 in the ICPHROP is very no-
table: gender, disability, sexual orientation, gender identity, migration, poverty,
marginalization, Afro-descent, and Indigenous origin, but also discrimination
against homeless people, people in prison, people belonging to traditional peo-
ples or ethnic, racial, national, linguistic, and religious and rural groups, as well
as the multiplying effect of discrimination when several of these conditions or
characteristics are added together. Article 5 (equality and nondiscrimination)
represents a recognition of regional multiculturalism, responding to the vast cul-
tural richness and heterogeneity and to the claims of the Indigenous peoples.27 It
also strongly emphasizes the gender perspective in the instrument.
164, 166; Francesco Seatzu, “Constructing a Right to Palliative Care: The Inter-American Convention
on the Rights of Older Persons” [2015] 1 Ius et Scientia 25.
23 See Francesco Seatzu, “Sulla convenzione dell’organizzazione dell’organizzazione degli stati
americani sui diritti delle persone anziane” [2015] 31 Anuario Espanol de Derecho Internacional
349, 358.
24 See Caitlin R. Williams, Erin C. Bennett, and Benjamin Mason Meier, “Incorporating a Gender
Perspective to Realise the Health and Human Rights of Older Persons,” in Allyn Taylor and Patricia
Kuzler (eds.), Ageing, Health and International Law: Towards an International Legal Framework to
Advance the Health and Human Rights of Older Persons (2010), https://ssrn.com/abstract_id=3790
125 (accessed December 13, 2021).
25 Preamble and art. 3 (I), 12 Inter-American Convention on Protecting the Human Rights of
Older Persons.
26 Discrimination is understood as any distinction, exclusion, or restriction that has the purpose
or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of

human rights and fundamental freedoms in the political, economic, social, cultural, or any other
sphere of public and private life (ICPDHPM definition).
27 On Indigenous Peoples and the Convention, see Aída Díaz- Tendero, “La Convención
Interamericana sobre la Protección de los Derechos Humanos de las Personas Mayores y los Pueblos
Originarios,” in Jorge Olvera, Julio César Olvera, and Ana Luisa Guerrero, Los Pueblos Originarios en
los debates actuales de los Derechos Humanos (Universidad Autónoma del Estado de México/CIALC/
UNAM and MA Porrúa 2017), 237–254.
At the same time, Article 5 constitutes one of the most avant-garde elements of
the ICPHROP. It incorporates sexual orientation28 and gender identity29 in the
corpus of human rights of the elderly, thus breaking the homogeneous and stere-
otyped vision about this population.
The Riffo Salinas sentence also refers to Article 13, the promotion of alterna-
tive measures to the deprivation of liberty by the States. This article is particu-
larly interesting because it establishes the guarantee by the States of access by
the elderly person deprived of liberty to rehabilitation mechanisms for their re-
integration into society. Underlying the spirit of the norm is the consideration
of life after the period of deprivation of liberty, discarding the idea that for an
incarcerated elderly person there is no future in society after the end of his or her
sentence.
In the ICPHROP, freedom also appears in Article 12 dedicated to the rights of
the elderly person receiving long-term care services, establishing in one of the
subparagraphs of Paragraph c) on the operation of the services that “the exercise
of the freedom and mobility of the elderly person shall be protected.” Other spe-
cific freedoms that appear in the ICPHROP are the right to freedom of expres-
sion (art. 14), the right to freedom of movement and the freedom to choose one’s
residence (art. 15).
3.2. Rights to Safety, Life, and Health
The right to security is present in the ICPHROP in other articles in addition to

the aforementioned Article 13. The “right to safety and to a life free from vio-
lence” (art. 9) refers to multiple types of violence and mistreatment.
Violence against the elderly includes, among others, different types of abuse,
including financial and patrimonial, physical, sexual, psychological, labor
exploitation, expulsion from their community and all forms of abandonment
28 Sexual orientation is independent of biological sex or gender identity; it refers to the capacity
of each person to feel a deep emotional, affective and sexual attraction to persons of a gender dif-
ferent from his or her own, of the same gender or of more than one gender, as well as the capacity to
maintain intimate and sexual relations with people. It is a complex concept whose forms change over
time and differ among different cultures. (United Nations, Sexual Orientation and Gender Identity in
International Human Rights Law. South America, Office of the United Nations High Commissioner
for Human Rights, 2012, 3).
29 The internal and individual experience of gender as each person deeply experiences it, which
may or may not correspond to the sex assigned at birth, including the personal experience of the
body (which may involve modification of bodily appearance or function through medical, surgical,
or other techniques, provided it is freely chosen) and other expressions of gender, including dress,
speech, and manners (ibid.).
or neglect that take place within or outside the family or domestic unit or that
are perpetrated or tolerated by the State or its agents wherever they occur.
Again, multiculturalism is reflected in the expulsion of the elderly from their

community, a customary practice of certain native peoples.
Safety is also reinforced in the rights of the elderly person receiving long-term
care services30 in Article 12, which determines the establishment of a regulatory
framework for the operation of long-term care services, including the adoption
of measures to “protect the personal safety and the exercise of freedom and mo-
bility of the elderly person.”
The right to life occupies a prominent place in Article 6 “Right to life and dig-
nity in old age” and relates especially to the end of life, palliative care, appropriate
management of problems related to the fear of death of the terminally ill, pain,
unnecessary suffering, and futile and useless interventions, in accordance with
the right of the elderly person to express informed consent. This article affirms
life and considers death as a normal process, which should neither be accelerated
nor delayed.
The right of the elderly person to make decisions and to define his or her life
plan, as well as to develop an autonomous life (art. 7, right to independence and
autonomy), is also a dimension of the right of the life.
The right to health enshrined in Article 19 is one of the broadest and most
comprehensive of the ICPHROP. It takes into account regional socioeconomic
inequality as well as multiculturalism.
The instrument’s emphasis on multiculturalism is also evident in the special
attention it pays to traditional, alternative, and complementary medicine. The
right to provide free and informed consent—in the field of health—in accord-
ance with the communication needs of the elderly person and the fact that the
information provided must be presented in accordance with the level of edu-
cation (art. 11) shows sensitivity to regional socioeconomic inequity. Likewise,
the inclusion of sexual and reproductive health and the treatment of sexually
transmitted diseases in the right to health of the elderly (art. 19), as well as the
right to give free and informed consent (art. 11, to accept, refuse to receive or vol-
untarily interrupt medical or surgical treatment and to receive clear and timely
information on the possible consequences and risks of such decision), may be
considered a progressive agenda in the area of health.
30 Elderly person receiving long-term care services: a person who resides temporarily or perma-
nently in a regulated facility, whether public, private, or mixed, in which he/she receives quality com-
prehensive social and health services, including long-stay residences, that provide these long-term
care services to the elderly person with moderate or severe dependency who cannot receive care at
home (CIPDHPM definition).
4. In What Aspects Do the IACHR Court Cases on Older

Persons Go Further than the Bolivian Case?
This section will analyze cases of the Inter-American Court of Human Rights on
the elderly in relation to the Riffo Salinas case, in order to find some coincidences,
differences, and/or complementarities. The analysis focuses on freedoms and rights
that were violated in Riffo Salinas (to life, to health, and to liberty and security).
4.1. Right to Life
In the case Yakye Axa v. Paraguay31 (2005), the Court analyzes Article 4 (right to life) of
the American Convention in relation to Article 1.1, concluding that it “includes not only
the right of every human being not to be arbitrarily deprived of life, but also the right not
to be subjected to conditions that prevent or hinder access to a dignified existence.”
This can be understood as a special relationship of the right to life with other
rights, that is, the factors that intervene in the attainment of a dignified life such
as health. Similarly, the Riffo Salinas case (Point III.5) sheds light into the health-
life binomial: “[T]‌he rights to life and health must take precedence when making
a determination.” The Yakya Axa case also calls attention to factors that hinder a
dignified life, specially the extreme poverty generated by the lack of access to land
ownership and natural resources. It even goes much further in this same case, and
the Commission’s arguments relate the right to life to social rights, in an interpreta-
tion of Article 26 of the American Convention:
Paraguay has the duty to guarantee the conditions necessary for the attainment of
a life in dignity, a duty that is underlined by the commitment contained in Article
26 of the Convention to adopt appropriate measures to achieve the full realization
of social rights.32
In the same sense, the Court manifests itself in the case Poblete-Vilches
v. Chile33 (2018) when it establishes the right to life as a fundamental right for
whose compliance and according to Article 4 of the American Convention:
31 The lands of the Paraguayan Chaco, where the Yakye Axa Indigenous community used to live, were
sold to British businessmen at the end of the nineteenth century for cattle ranching, and the Indigenous
people worked for these companies in very poor conditions. In 1986, they moved to another tract of land,
which also brought no improvement in their quality of life. Since 1993, the Yakye Axa Indigenous com-
munity began the corresponding procedures to claim the lands they consider their traditional habitat. The
case reached the Court on March 17, 2003 (Case Yakye Axa v. Paraguay [2005], IACtHR, Ser. C No. 123).
32 Case Yakye Axa v. Paraguay [2005], Ser. C No. 123, para. 157, subpara. e).
33 On January 17, 2001, Mr. Vinicio Antonio Poblete Vilches, seventy-six years old, was admitted to
the Sótero del Río public hospital due to severe respiratory failure. He was hospitalized for four days in
States have the obligation to ensure the creation of the conditions required to
prevent violations of this right.34
4.2. Right to Health
It is convenient to separate allusions to the right to health from those referring to the
condition of lack of health.
In the Riffo Salinas case, health, or rather the lack thereof, is understood as an im-
pediment to the exercise of rights in the general sense, that is, a deficit in the exercise
of rights of a civil, political, or social nature whose origin is the lack of the right to
health, a social right par excellence.
It is also “the lack of health” that appears as a conditioning factor for the analysis
of the evidentiary elements from a different perspective in the Riffo Salinas ruling.
In the case Yakye Axa v. Paraguay, the right to health is protected by Article
10 of the Protocol of San Salvador, which “establishes the right of ethnic and cul-
tural groups to use their own traditional medicines and health practices, as well
as the right of access to health institutions and medical care provided to the rest
of the population in order to preserve their physical, mental and moral integ-
rity,”35 and the protection is reinforced because they are elderly people. If in this
ruling there is a social construction of old age as vulnerability, it certainly does
not appear explicitly.
The Poblete-Vilches v. Chile case36 is the first case in which the Inter-American
Court of Human Rights ruled directly on the right to health of the elderly.37
the intensive care unit. He was then admitted to the Surgical Intensive Care Unit where he underwent
surgery when the patient was unconscious, without having obtained the consent of his relatives. On
February 2, he was discharged early, without further instructions, and his relatives had to hire a private
ambulance to take him home, since the hospital had no ambulances available. Three days later, Mr.
Poblete was admitted to the same public hospital, where he remained in the intermediate care unit,
despite the fact that the medical record required him to be admitted to the intensive care ward. He also
required a respirator, which was not provided. Mr. Poblete-Vilches died two days later, on February 7,
2001. The relatives filed a first criminal complaint in 2001 and a second one in 2005. On December 11,
2006, the First Civil Court ordered the dismissal of the case; it was dismissed in 2007. Again, on June
30, 2008, the case was dismissed and on August 5, 2008, the case was unsealed. It reached the Court in
2018 (Case Poblete-Vilches v. Chile [2018], IACtHR, Ser. C No. 372).

35 Case Yakye Axa v. Paraguay [2005], IACtHR, Ser. C No. 123, partially dissenting opinion of
Judge A. Abreu Burelli, para. 25.
36 On the Poblete-Vilches v. Chile case, see Mariela Morales Antoniazzi and Laura Clericó (coords.),
Interamericanización del derecho a la salud. El caso Poblete de la Corte IDH bajo la lupa (Instituto de
Estudios Constitucionales del Estado de Querétaro 2019).
37 The designation “elderly person” is used for the first time by the Court in the Poblete-Vilches
v. Chile case, based on the ICPHROP, setting an important precedent. However, it cannot support its
judgment on this instrument, due to the fact that it was ratified by the Chilean State on July 11, 2017.
The Court interprets that the protection of the right to health derives from
the American Convention and relies—due to the impossibility of invoking
the ICPHROP because the facts were prior to the date of when Chile ratified it
(August 15, 2017)—on a multiplicity of instruments. It establishes that health is a
fundamental and indispensable human right and that every human being has the
right to the enjoyment of the highest attainable standard of health that enables
him or her to live in dignity, health being understood not only as the absence of
disease or infirmity but also as a complete state of physical, mental, and social
well-being, derived from a lifestyle that allows individuals to achieve a compre-
hensive balance. This general obligation translates into the duty of the States to
ensure people’s access to essential health services, ensuring quality and effective
medical care, as well as to promote the improvement of the population’s health
conditions.
The merits of the case state that the elderly are entitled to a reinforced protec-
tion of the right to health and, therefore, require the adoption of differentiated
measures.
The Court valued the opportunity to rule for the first time specifically on the
rights of the elderly in the area of health. It highlighted the importance of making
the elderly visible as subjects of rights with special protection and therefore com-
prehensive care, with respect for their autonomy and independence. The Court
considered that there is a reinforced obligation to respect and guarantee their
right to health. The questioning of the social construction of old age behind this
ruling should be repaired in that the exercise of the right to health is linked to the
enforceability of the same by its holder, in this case, the elderly person; and in
no way is it related to the fact that he or she is vulnerable or fragile. On the other
hand, the immediate accompaniment of the principles of autonomy and inde-
pendence reinforces the interpretation in the same sense.38
4.3. Right to Liberty and Security
The case of García Lucero et al. v. Chile39 (2011) can be considered complemen-
tary to the Riffo Salinas case in relation to due process. The Bolivian case upholds
38 IACtHR’s more recent cases expanding social and economic rights of older persons were not yet
decided at the time Riffo Salinas was ruled (e.g., Muelle Flores v. Peru, 2019). See Daniel Cerqueira,
“Jurisprudencia de la corte IDH en casos sobre DESCA: entre lo retórico y lo impredecible. Justicia
en Las Américas” (Blog de la Fundación para el Debido Proceso, July 1, 2020), https://dplfblog.com/
2020/01/07/jurisprudencia-de-la-corte-idh-en-casos-sobre-desca-entre-lo-retorico-y-lo-impredeci
ble/(accessed January 5, 2022).
39 The facts of this case take place during the Chilean dictatorship. On September 16, 1973, Mr.
Leopoldo García Lucero was arrested by Carabineros in Santiago de Chile and was held incommuni-
cado and tortured in various ways. He was then taken to a concentration camp “Chacabuco” where
he remained for thirteen months. After Decree-Law 81 of 1973, Mr. García Lucero was expelled from
Chile on June 12, 1975, and has been living in the United Kingdom ever since. In 1993, he sent a letter
the need to promote alternative measures to the deprivation of liberty of an

elderly person (see section 2), and the García Lucero case raises the right to a
simple and prompt recourse before competent judges or courts (art. 25(1) of the
ICPHROP: judicial protection) in relation to Article 1(1) of that instrument (ob-
ligation to respect rights) on the basis of age.
In the Poblete-Vilches case, the right to personal liberty is interpreted in re-
lation to the right to health, specifically, the freedom to give consent prior to
surgery. The Chilean State had already accepted prior to the arrival of the case
before the Inter-American Court the violation of Mr. Poblete’s right to personal
liberty40 (art. 7, everyone has the right to liberty and security of person).
5. Social Constructions about Old Age and the Elderly
In the Riffo Salinas ruling, the social construction of old age is based on inactivity,
a precarious state of health, economic scarcity, and limited social environments.
It is counterintuitive to use the ICPHROP without rescuing the ideological part
of the instrument, given that its leitmotif is the empowerment of the elderly, the
recognition of the multiplicity of old age, and especially the breaking of the asso-
ciation between vulnerability and fragility, with old age.
Similarly, in the case of the IACtHR García Lucero et al. v. Chile, the char-
acterization of Mr. Leopoldo García Lucero as a person in a situation of vul-
nerability due to the fact that he is seventy-nine years old and suffers from a
permanent disability is emphasized. Regarding this characterization, it is
explained that the Protocol of San Salvador indicates in its Articles 17 and 18
the relevance of “protection” to the “elderly” and “handicapped.” Advanced age
is also taken into account in the requirement of special diligence in the resolu-
tion of the process.
On the contrary, the construction around the elderly in the Yakye Axa
v. Paraguay case is not monochromatic, since it has to do on the one hand with
vulnerability, in that the State is expected to adopt measures aimed at maintaining
their functionality and autonomy, guaranteeing the right to adequate food, ac-
cess to clean water, and healthcare, but on the other hand it has to do with the
from London to the Program for the Recognition of the Politically Exonerated in Chile in which he
referred to the injuries caused by the torture he received. He receives three types of monetary com-
pensation under different laws. The case reaches the court in 2011 (Case García Lucero et al. v. Chile
[2013], IACtHR, Ser. C No. 267).
40 Of utmost interest is the Court’s interpretation of liberty, defining it as “the capacity to do and
not to do everything that is lawfully permitted, allowing every person to organize, in accordance with
the law, his individual and social life according to his own choices and convictions” (Case Poblete-
Vilches v. Chile [2018], IACtHR, Ser. C No. 372, para. 169).
empowerment of the elderly, visualizing them as the main oral transmitters of

culture to the new generations. In other words, older persons are not only rights-
holders but also duty bearers (in this sense, the specific reference to obligations
in the African protection instrument is very relevant41).
This two-dimensional construction is also found in the Poblete-Vilches v. Chile
case. The Commission constructs old age around vulnerability, specifically in re-
lation to access to the right to health and the public health system, as well as taking
into account people living in poverty. However, the Court highlights the impor-
tance of making the elderly visible as subjects of rights with special protection
and therefore comprehensive care, with respect for their autonomy and indepen-
dence. The empowerment of the elderly as subjects of rights and responsibilities
can be seen in these principles. Of particular interest for the justiciability of
Economic, Social and Cultural Rights (ESCR) is the location of the discourse of
social construction. It would seem a priori that the enforceability of civil and po-
litical rights is strengthened by social constructions that empower older persons,
while that of social rights is based on social constructions of old age based on vul-
nerability and fragility. However, this is a false dilemma. The ESCR are rights that
can be demanded not on the basis of the vulnerability of those who are entitled to
them but on the basis of their empowerment, in the same way that in the realm of
public policies, social assistance is differentiated from social security.42 Finally,
social constructions based on the ownership of rights, empowerment, autonomy,
and independence support the phenomena of interdependence and indivisibility
of civil, political, and social rights.
On the occasions when health appears in the Riffo Salinas judgment, it is related
to certain social constructions that relate the elderly to poor health, in accordance
with the previous paradigm on old age. The following excerpt (Point III.1.) of the
Riffo Salinas ruling shows the argument on the differential and intersectional ap-
proach to the rights of older persons based on certain social constructions:
Given that old age implies the loss of means of subsistence, either due to
the advent of diseases and the consequent loss of health, or because they
become economically inactive and are therefore limited in the exercise of
their rights.
41 In the African instrument, the obligations of older persons, integrated in Article 20, consist
of generating and transferring knowledge to younger generations, generating intergenerational sol-

idarity and dialogue, and resolving conflicts as mediators (African Union, Protocol to the African
Charter on Human and People’s Rights on the Rights of Older Persons in Africa, General Assembly,
Twenty Sixth Ordinary Session, Addis Ababa, January 31, 2016).
42 Aída Díaz-Tendero, “The State and the economic security of older adults. Marco conceptual en
torno a las dimensiones de la solidaridad económica” [2015] 85 Papeles de Población Nueva Época
79–108.
In other words, there is a social construction of old age as a stage of losses and
vulnerabilities, which may be true for a specific case, but is not true for the gener-
ality of the elderly population.
The criteria for the application of preventive detention of the elderly in the Riffo
Salinas ruling establish that it is also necessary to analyze the evidence from a
differentiated perspective and without requiring formalities that are difficult to
comply with for the elderly (Point III.4, Paragraph a.1):
Most of them are sick, inactive at work, without patrimony and often without a
family environment (...)
This is, once again, a construction of old age based on shortcomings and
deficits, in this case in the health, economic, and even social spheres, which in
some ways is contrary to the spirit of the ICPHROP.
In the arguments of the analysis of the specific case in the Riffo Salinas judg-
ment, the right to health appears together with the right to life, and this time it is
repeated categorically that “the elderly person has by nature a vulnerable health
condition,” that is, again a negative social construction of old age in the following
context (Point III.5):
Medical certifications and even a forensic medical expert report recommending

the internment of the accused in a hospital due to his advanced age; (...)
precisely when facing resolutions that impose precautionary measures on
elderly people, the rights to life and health must take precedence when making
a determination, since the elderly person has by nature a vulnerable health
condition.
The multilevel impact of the standards of the Inter-American System can be seen
in the Riffo Salinas case in the application of the ICPHROP, in the integration
of the inter-American standards established by the Court and the Commission
in cases that do not involve elderly persons, and in the convergence of national
and inter-American norms. Regarding its significance for the jurisprudence on
the elderly as subjects of law, it is clear that the case is based on the preferential
and special treatment to which the defendant is entitled because he is an elderly
person.
The answer to the question of whether the case integrates the ad hoc instru-
ment of the Inter-American System for the protection of the human rights of
the elderly, the ICPHROP is affirmative and is based, specifically, on the use of
Articles 5 (equality and nondiscrimination on grounds of age) and 13 (right to

personal liberty).
In relation to the degree of integration or exclusion of the inter-American
standards established by the Court and the Commission, the Riffo Salinas judg-
ment includes judgments and votes issued by the Inter-American Court in cases
that, although they are not about older persons, are substantive for its legal ar-
gumentation, such as the Report of the Inter-American Commission on the use
of pretrial detention based on the intersectional approach; and the cases Lapo
Íñiguez v. Ecuador (2007) and Andrade Salmón v. Bolivia (2016) on indispensa-
bility and proportionality.
To answer the question of whether the case constitutes evidence of the
multilegal system, converging national and inter-American regulations, it is
noted in the legal grounds that both the ICPHROP and Bolivian domestic
regulations are used, especially the General Law on Older Adults (2013), but
also the Political Constitution of the Plurinational State (2009) and the Code of
Criminal Procedure (1999).
Regarding the conclusions on the social constructions of old age and the eld-
erly that emerge from the judgment, the ruling does reinforce a negative con-
struction of old age and the elderly, associated with losses and vulnerabilities in
different dimensions. Although it is appropriate to portray these circumstances
in the characterization of specific cases, it is not correct to generalize them as a
definition of old age and/or older persons. In this sense, the Riffo Salinas ruling
goes against the spirit of the ICPHROP.
Other conclusions that emerge from the analysis of the Riffo Salinas case and
that were not established in the initial questions are, on the one hand, the inter-
dependence (of civil, political, and social rights) and, on the other hand, the mul-
tidimensionality of rights, specifically the right to health. The main right violated
in the Riffo Salinas case belongs to the civil sphere (right to life), but its link with
the right to health (social right), echoing Poblete-Vilches v. Chile, a case based on
the violation of the right to health in its social dimension but which irremedi-
ably brings with it the violation of civil rights such as the right to give informed
consent.
A new era in the protection of the human rights of the elderly begins, based
on the instrument created specifically for this purpose and which constitutes
the vanguard at the global level. The ICPHROP deepens the content and appli-
cability of human rights to the daily reality of the elderly, as evidenced in the
possibilities of Articles 5 and 13 and in the magnitude of the rights to security,
freedom, life, and health.
Likewise, evidence has been presented to support the assertion that the
Court’s jurisprudence on the human rights of older persons has established in-
teresting standards in relation to the right to life (Yakye Axa v. Paraguay and
Poblete-Vilches v. Chile cases, 2018), the right to health (Yakye Axa v. Chile and
Poblete Vilches v. Chile cases), and the rights to liberty and security (García
Lucero et al. v. Chile and Poblete-Vilches v. Chile cases).
A judge’s knowledge of the human rights approach applied to aging opens his
or her eyes to how his or her jurisdictional task can be strengthened with re-
gional instruments, standards, and jurisprudence that allow understanding the
phenomenon of aging and the elderly as subjects of law.
Finally, one of the pending tasks in the Ius Constitutionale Commune en
América Latina is the inclusion of social constructions on old age and older
persons that embrace the multiplicity, plurality, and heterogeneity of old age,
without weakening the need for protection, the existence of intersections that
enhance the vulnerability of certain older persons, and, in general, the appli-
cation gap (as recognized by the European Recommendation of 201443) of the
regulations that a good number of older persons suffer to a greater extent than
other age groups. Positive and plural social constructions about old age and older
people have a considerable impact in the legal sphere and beyond, as recognized
in the line of jurisprudence classified as therapeutic44 in Anglo-Saxon geronto-
logical law. Likewise, the way in which older people live and think about their
old age today will shape the social—and legal—constructions of old age that will
contextualize the lives of older people and the gerontological legal praxis of the
next generation.
43 Council of Europe, Recommendation on the promotion of the human rights of older persons,
CM/Rec(2014)2, 2014.
44 David B. Wexler, “Therapeutic jurisprudence in clinical practice” [1996] 153 American Journal
of Psychiatry 455.
II.9
The Standards of the Inter-American
Human Rights System regarding Migration
and Its Impact on the Region’s States
By Elizabeth Salmón and Cécile Blouin
1. Introduction
The complexity of the issues explored in this chapter and the unfinished char-
acter of the applicable inter-American standards poses a series of difficulties
for researchers.1 The first difficulty lies in the dialectical tension between sover-
eignty and the rights of migrants. Control over the entry, residence, and exit of
foreigners or non-nationals within a sovereign territorial area has traditionally
been understood as part of the “reserved domain” of the State.2 However, since
there are no vetoed spaces for human rights, such rights have been able to enter
into this privileged area of State regulation.3 Thus, human rights have risen as a
limit to an otherwise strictly sovereign realm. Additionally, the evolution of leg-
islation, together with the dynamic or relative nature of “reserved domain,” has
progressively transformed human rights into an unavoidable issue in the devel-
opment of legal regimes and the framing of public policies on migration.
1 This chapter is part of a Pontificia Universidad Católica del Perú (PUCP) research project
entitled “Migrant Trajectories: An Approach to the Factors that Structure the Migratory Projects
and Strategies of Young Venezuelan People in Peru” (2019–2021). This PUCP Project was presented
by the Interdisciplinary Research Group on Human Rights and International Humanitarian Law
(GRIDEH) and won PUCP’s Annual Research Project Contest. We would like to thank Crisbeth Vigo
and Lucero Ibarra, both GRIDEH research assistants, for their help in reviewing literature review and
jurisprudence.
2 See Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua
against v. United States of America) [1986] International Court of Justice (ICJ), para. 205; and United
Nations General Assembly (UNGA), Resolution No. 2625 (XXV), “Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations,” October 24, 1970, A/RES/2625(XXV).
3 For a broader analysis on the impact of international human rights law on the paradigm of
“Open State”: Mariela Morales Antoniazzi, “El Estado Abierto como objetivo del Ius Constitutionale
Commune. Aproximación desde el impacto de la Corte Interamericana de Derechos Humanos,”
in Armin von Bogdandy et al. (eds.), Ius constitutionale commune en América Latina: rasgos,
potencialidades y desafíos (UNAM; IIJ; MPIL; IIDC 2014), 277–278.
Elizabeth Salmón and Cécile Blouin, The Standards of the Inter-American Human Rights System regarding Migration
and Its Impact on the Region’s States In: The Impact of the Inter-American Human Rights System. Edited by: Armin
von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press.
© Elizabeth Salmón and Cécile Blouin 2024. DOI: 10.1093/oso/9780197744161.003.0020
Standards of the Inter-American Human Rights System 367
Another difficulty arises from the conceptualization of migration. There

is no legal consensus on the definition of “migrant.” Nevertheless, different
instruments characterize the various groups of people who move, each granting
them a specific protection regime.4 In this chapter, we choose to start from
a broad concept of migration in order to address the totality of the standards
of the Inter-American Human Rights System (IAHRS) developed in this field.
Therefore, when we refer to migrants we include refugees, migrants, and stateless
persons in situations of displacement. Detailing each one of these figures does
not correspond to the aims of this chapter, but it is worth emphasizing that they
share a common trait: they all refer to non-nationals. Moreover, it is important
to recognize human mobility as an intricate phenomenon where legal categories
are increasingly discussed.5
This chapter has two objectives: (1) analyzing the progress made by the
IAHRS in terms of the protection and guarantees of migrant rights, and (2) un-
derstanding the magnitude of the impacts of these standards in the region. Each
objective will be explored consecutively in the two following sections.
2. The Standards of the Inter-American Human Rights

System for Migration Matters
One needs to consider that there is no normative reference to explain the no-
tion of “standard” within the IAHRS. Instead, there is a reference model guiding
the effective fulfillment of contracted obligations: an unavoidable interpre-
tive paradigm for the attainment of international obligations and a permanent
enrichment mechanism that ensures international courts contribute to the
essential content of human rights.6 From the perspective of the national en-
forcer, according to César Landa a standard would be a criterion shaping the
interpretations of national judges and a reference point for the validation of the
national laws of a State.7
4 Cécile Blouin, “Antes de la llegada: migración (forzada) de personas venezolanas,” in Cécile
Blouin (ed.), Después de la llegada Realidades de la migración venezolana (Themis IDEHPUCP 2019).
5 See Roger Zetter, “More Labels, Fewer Refugees: Remaking the Refugee Label in an Era of
Globalization” [2007] 20 Journal of Refugee Studies 172, <https://academic.oup.com/jrs/article-

abstract/20/2/172/1539814> (accessed February 5, 2022); Jane McAdam, “Swimming Against the
Tide: Why a Climate Change Displacement Treaty Is Not the Answer” [2011] 23 International Journal
of Refugee Law 2, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1714714> (accessed
February 5, 2022).
6 Elizabeth Salmón and Cristina Blanco, El derecho al debido proceso en la jurisprudencia de la
Corte Interamericana de Derechos Humanos (4th ed., Fondo Editorial de la Pontificia Universidad
Católica del Perú 2021), 13.
7 César Landa, Control of Conventionality: The Peruvian Case (Editorial Academia Española
2017), 122.
368 Elizabeth Salmón and Cécile Blouin
Within this framework, one can distinguish between at least three pre-
cise stages in the relationship between the IAHRS and the issue of migration.
These stages can be explained by the evolution of the jurisprudence of the Inter-
American Court of Human Rights (IACtHR) and the work of the Inter-American
Commission on Human Rights (IACHR).
2.1. First Stage: Silence from the Inter-American Human

Rights System
The Economic Commission for Latin America and the Caribbean (CEPAL) and
the International Organization for Migration (IOM) have pointed out that since
the end of the twentieth century migratory flows8 have increased throughout the
region, and primarily in North America.9 Nonetheless, efforts to develop human
rights standards in the IAHRS were not initially focused on the human rights
of migrants. Hence, we can speak of an initial stage in the IAHRS considera-
tion of migration as characterized by silence. This silence could be explained by
the upheavals taking place during that period, which was marked by a number
of dictatorships and systematic human rights violations and meant that priority
issues, such as torture and enforced disappearances, demanded the greatest at-
tention. As is already known, the IACtHR began its work in a convulsed Latin
America. This is reflected by its first judgments on cases involving “enforced
disappearances and other serious human rights violations related to this crime.”10
The first judgment by the Inter-American Court, the Velásquez Rodríguez case
against Honduras, responded to the need to confront the phenomenon of forced
disappearance of persons and, therefore, established the constituent elements of
such crime.11 The following two cases were also from Honduras, which is under-
standable due to the numerous complaints of missing persons and the inaction
of the State in the face of such a crisis.12 This jurisprudential line is also evidenced
later in the cases of Godínez Cruz v. Honduras (1989), Blake v. Guatemala (1998),
8 Carlos Maldonado Valera, Jorge Martínez Pizarro, and Rodrigo Martínez, Protección social y
migración: una mirada desde las vulnerabilidades a lo largo del ciclo de la migración y de la vida de las
personas (CEPAL 2018), 13, <https://repositorio.cepal.org/bitstream/handle/11362/44021/1/S180
0613_es.pdf> (accessed February 5, 2022).
9 International Organization for Migration (IOM), “Migration and Migrants: Regional
Dimensions and Developments,” in Maire McAuliffe and Martin Ruhs (eds.), World Migration Report
2018 (IOM 2017), 91, <https://publications.iom.int/system/files/pdf/wmr_2018_sp.pdf> (accessed
February 5, 2022).
10 Elizabeth Salmón, Introducción al Sistema Interamericano de Derechos Humanos (PUCP Fondo
Editorial 2019), 289.

11 IACtHR, 40 años protegiendo derechos (IACtHR 2018), 20, <https://www.corteidh.or.cr/sitios/
libros/todos/docs/40anos_esp.pdf> (accessed February 5, 2022).

12 Salmón (n. 10), 290.
and Goiburú et al. v. Paraguay (2006). In this way, the initial action of the IACtHR
responded to the reality of a region suffering from severe and systematic human
rights violations perpetrated mostly by State agents from the 1970s onward.13
Another reason for the silence during this stage is that following the inception
of the Inter-American System there was no concerted focused on international
migration, given that the region was mainly an origin for migration and not an
area of transit, let alone a destination.14 However, this situation has changed in
recent years. Mobility trends between 2000 and 2010 indicate that the number
of Latin American people living in countries other than those of their birth
increased by 32 percent and by 35 percent in Central America.15 Therefore, in the
last decades “the intra-regional immigration increase in Latin America and the
Caribbean is consistent with the processes of international mobility.”16
These two circumstances bring to light the initial lack of response by the
Inter-American System for the protection of the rights of migrants. However,
the IACHR was able to rule, in specific but isolated cases, on certain obligations
regarding the rights of migrants. In this regard, we have the Merits Report on the
1997 case of Haitian Refugees v. the United States,17 which outlines protection
guidelines on the prohibition of non-refoulement based on the rights to life, se-
curity, and personal integrity. Likewise, in the report on the case of Loren Laroye
Riebe Star, Jorge Barón Guttlein, and Rodolfo Izal Elorz v. Mexico in 1999,18 the
IACHR sought to establish State obligations regarding judicial guarantees in ad-
ministrative expulsion proceedings. These cases are only two incipient efforts
that would be further developed in subsequent years.
2.2. Second Stage: Initial IAHRS Reactions
A foundational moment in the protection of the rights of migrants occurs with

the release of the IACtHR’s Advisory Opinion OC-18/03 on the legal status and
rights of undocumented migrants. It is important to recall that in 2002 Mexico
requested the opinion of the Inter-American Court mainly because the practices
and interpretations of various States in the region were denying the labor rights
of undocumented workers by using discriminatory criteria based on their immi-
gration status.
13 Ibid.
14 Jorge Matínez Pizzaro and Cristián Oerrego Rivera, Nuevas tendencias y dinámicas migratorias
en América Latina y el Caribe (CEPAL 2016), 12, <https://repositorio.cepal.org/bitstream/handle/
11362/39994/1/S1600176_es.pdf> (accessed February 5, 2022).
15 Ibid.
16 Ibid.
17 Haitian Boat People (United States) [1997] Case 10.675, IACHR, Merits Report No. 51/96.
18 Loren Laroye Riebe Star, Jorge Barón Guttlein and Rodolfo Izal Elorz (Mexico) [1999] Case
11.610, IACHR, Report No. 49/99.

In this Advisory Opinion, the IACtHR explicitly refers to the rights of migrants
and thus places migration as an axis of concern for human rights.19 It also states
that the objectives of migration policies must bear in mind the respect for human
rights.20 In other words, the power of the State to exercise its migration policies was
recognized, considering it lawful for States to establish measures on the entry, per-
manence, or exit of migrants as workers in specific areas of production within their
territory. However, this competency must follow measures for the protection of the
human rights of all persons and, in particular, the human rights of workers.21
Regarding the main standards developed by the IACtHR, it is noteworthy
that they established an unbreakable tie between the respect for the principle
of equality and nondiscrimination and the obligation to guarantee and respect
human rights. They even determined that this principle has ius cogens status.22
Concerning the effects of the principle, the Court recognizes the vulnerability of
migrants. It establishes that States cannot discriminate or tolerate discriminatory
situations to the detriment of migrants, but they can grant a different treatment
to documented compared to undocumented migrants. A State can differentiate
between migrants and nationals as long as the differential treatment is reason-
able, objective, proportional, and does not harm human rights.23 It is relevant
to stress that on this occasion the IACtHR established for the first time that the
right to due process24 must be recognized within the framework of the minimum
guarantees provided to all migrants, regardless of their immigration status.25
Regarding the rights of undocumented migrant workers, the IACtHR emphasized
that having an immigration status cannot be a justification for depriving
people of the enjoyment and exercise of their human rights, including labor
rights.26
19 Lila García, “Migraciones, Estado y una política del derecho humano a migrar: ¿hacia una nueva
era en América Latina?” [2016] 88 Colombia Internacional 113. It should be recognized that before
Advisory Opinion 18/03, the Inter-American Court in 1999 adopted Advisory Opinion 16/99, which
recognizes the right of effective access to consular assistance for foreign persons deprived of liberty.
This pronouncement, although of crucial importance, focuses mainly on the obligations of the States
of origin. In that sense, we do not detail it in this chapter; see IACtHR, “The Right to Information
on Consular Assistance within the Framework of the Guarantees of Due Process of Law,” Advisory
Opinion OC-16/99, October 1, 1999, Ser. A No. 16.
20 IACtHR, “Juridical Condition and Rights of Undocumented Migrants,” Advisory Opinion OC-
18/03, September 17, 2003, para. 168.

22 Ibid., paras. 85, 97.
24 The Court considers it as “the list of minimum guarantees of due process is applied in the deter-
mination of rights and obligations of a ‘civil, labor, tax or any other nature,’ ” therefore revealing that
due process affects all these spheres and not just the criminal aspect, ibid., para. 124.
26 Helena María Olea Rodríguez, Los derechos humanos de las personas migrantes: Respuestas
del Sistema Interamericano (Instituto Interamericano de Derechos Humanos 2004), 77. IACtHR,
In summary, the IACtHR addresses the rights of migrants in the framework

of the general obligations of nondiscrimination embodied in the American
Convention on Human Rights (ACHR). These pronouncements and decisions
laid the foundations for the protection of the human rights of migrants at the
Latin American level. The jurisprudence and specialized doctrine that we will
examine later reflects this.
Regarding its contentious jurisdiction, the IACtHR in 2010 issued its ruling
on the case of Vélez Loor v. Panama. The process began after Mr. Jesús Vélez,
who was from Ecuador, was arrested and held in a Panamanian prison and sub-
sequently deported because he allegedly did not have with him the necessary
documentation to remain in the country. This judgment is especially relevant be-
cause it was the first time the IACtHR ruled on the deprivation of liberty for mi-
gratory reasons.27 The Court made it clear that detention for migratory reasons
cannot have a punitive purpose. In this sense, the judgment marks an advance in
the prohibition of the criminalization of irregular migration in the region, and
it establishes that in cases involving migrants, detention and deprivation of lib-
erty due to irregular migratory situations are only admissible when necessary
and proportionate to the specific case, for the shortest possible time, and in re-
sponse to the legitimate purposes alleged.28 Additionally, where appropriate,
migrants should be detained in establishments specifically intended for that pur-
pose and following their legal situation, and not in common prisons or other
places where they may be held together with persons accused or convicted of
criminal offenses.29 The IACtHR also established clear elements and guidelines
concerning judicial guarantees in immigration procedures and regarding the
sanctions that could be imposed for the violation of its provisions. Among these
guarantees it is worth mentioning legal representation, the right to be notified
of your rights under the Vienna Convention on Consular Relations, the right to
communicate with a consular officer and to receive consular assistance within a
reasonable timeframe, and the judicial guarantees contemplated in Article 8.1 of
the ACHR.30
“Juridical Condition and Rights of Undocumented Migrants,” Advisory Opinion OC-

18/
03,
September 17, 2003, paras. 133–160.
27 For a complete analysis of the sentence, see Romina Sijniensky, “Limitaciones al uso de
medidas privativas de libertad para el control de los flujos migratorios: comentario al caso Vélez
Loor Vs. Panamá de la Corte Interamericana de Derechos Humanos,” in Opus Magna Constitucional
Guatemalteco, Tomo IV (Instituto de Justicia Constitucional 2011), 71–97, <https://www.corteidh.
or.cr/tablas/28053-4.pdf> (accessed February 5, 2022).
28 Ibid.
29 Ibid.
30 Helena María Olea Rodríguez, “Migración (en la jurisprudencia de la Corte Interamericana de
Derechos Humanos)” [2015] 9 Revista en Cultura de la Legalidad 249–272.

Another substantial contribution of this judgment is that it reaffirms the catego-

rization of migrants as a “vulnerable group.”31 According to the IACtHR, the con-
dition of vulnerability has an ideological dimension, and it differs depending on
the different historical contexts of each State. It is maintained de jure (inequalities
between nationals and foreigners within the law) and de facto (structural
inequalities).32 This vital recognition places migrants in a jurisprudential and inter-
pretive category of the highest order, establishing reinforced protection for people
on the move. Such jurisprudential development is one of the particularities of the
Inter-American jurisprudence on the topic.
We can say, therefore, that there is now a coexistence between the recognition
regarding the applicability of general obligations, such as the commitment to guar-
antee and respect human rights without discrimination, and what is explicitly appli-
cable to migrants as a vulnerable group.
2.3. Third Stage: Development and Expansion of Standards
The IACtHR has developed robust jurisprudence on people on the move, which
includes and is based upon the adoption of measures aimed at the protection of
migrants.33 In this regard, the IACtHR has developed standards based on the pro-
tection of the right to life, personal integrity, freedom of movement, and residence
for refugees and asylum seekers, as well as irregular migrants, and it has also pro-
vided for the protection of family members and migrant children.34 A list of these
precedents is provided in Table II.9.1.
This development is first evidenced in the 2012 case of Nadege Dorzema et al.
v. the Dominican Republic. This case involved the death of several individuals
resulting from the use of force by military agents. The incident took place when a
truck carrying a group of Haitian people entered Dominican Republic territory
and Dominican military agents engaged in a high-speed pursuit that resulted in
the truck overturning.35 In this regard, the Court declared that the Dominican
State was responsible for the events, particularly for violating their obligation to
respect and guarantee the rights of all persons, as well as the obligation of norma-
tive adequacy (Articles 1 and 2 ACHR). Likewise, it is important to point out that
the Court referred to indirect discrimination resulting from “norms, actions,
31 Case Vélez Loor v. Panama [2010] IACtHR, Ser. C No. 218, para. 207.
32 Ibid., para. 98.
33 Belen Olmos, “Assessing the Evolution of the Inter-American Court of Human Rights in the
Protection of Migrants’ Rights: Past, Present, and Future” [2017] 21 International Journal of Human
Rights 1483.
34 Ibid.
35 Nadege Dorzema et al. v. the Dominican Republic [2012] IACtHR, Ser. C No. 251, paras. 41–65.
Table II.9.1 Summary table of IACtHR contentious cases on rights of migrants.
Contentious cases Rights provided in the ACHR Group
The case of Vélez Loor • Due process in administrative Migrants in an

v. Panama (2010) procedures, access to justice: irregular situation
procedural guarantees (Arts. 8 and
25 ACHR)
• The deprivation of liberty for
migratory reasons (Art. 7.5 ACHR)
The case of Nadege • Equality, nondiscrimination, and Migrants
Dorzema and others regulatory compliance obligation
v. Dominican Republic (Arts. 1 and 2 ACHR)
(2012) • Prohibition of collective expulsions due
to the principle of non-refoulement
(Art. 22.9 ACHR)
The case of Familia • Principle of non-refoulement Asylum seekers and
Pacheco Tineo (Art. 22.9 ACHR) children
v. Bolivia (2013) • Due process and access to justice
within the framework of the refugee
status determination (Arts. 8, 22.7,
and 25 ACHR)
Case of expelled • The obligation of normative adequacy Stateless persons
Dominicans and (Art. 2 CADH)
Haitians v. the • Duty to prevent, avoid, and reduce
Dominican Republic statelessness (Arts. 1.1 and 27 ACHR)
(2014)
policies, or measures”36 that in practice may produce negative effects for spe-
cific groups of people, in this case, migrants. The Court also referred to the pro-
hibition of collective expulsions derived from the principle of non-refoulement
(Article 22.9 ACHR). Expulsion proceedings are to be evaluated individually
and according to the particular circumstances of each case.37 Additionally, the
Court refers to the standards of legality, necessity, and proportionality in the use
of force, which must be applied in contexts of migratory operations as well.38
Another relevant case is Pacheco Tineo family v. Bolivia, in which the Court for
the first time analyzed the situation of refugees. The Pachecos were a Peruvian
family who were expelled from Bolivia, despite their refugee status, solely on
the basis of their irregular entrance into the country as migrants. The Court de-
veloped standards regarding procedural guarantees in processes to determine

38 Ibid., paras. 85–91.
refugee status through the joint interpretation of the right to seek and receive
asylum, and the right to due process and access to justice (Articles 8, 22.7, and
25 ACHR).39 Specific obligations were established40 for States toward applicants,
such as providing a competent interpreter and guidance concerning the proce-
dure to be followed, legal advice and representation, and the opportunity to con-
tact a UNHCR representative. The Court also established that the examination
of the request would be performed by a competent and identified authority that
duly substantiates its decisions, as well as respecting the personal information
of applicants at all stages. Likewise, in case the request is rejected, the pertinent
information needed to appeal the decision must be granted within a reasonable
period. The State must also allow the applicant to remain in the country for as
long as the appeal is reviewed.41
In 2014, the IACtHR achieved a third milestone when it had the opportunity
to rule on statelessness. In the case of the Expelled Dominicans and Haitians v. the
Dominican Republic, the Court established the duty of States to prevent, avoid,
and reduce statelessness. The Dominican Republic had violated the rights of a
group of Haitian and Dominican people by expelling them from their territory.
Moreover, by applying these discriminatory measures, the State had hindered the
access of the Haitian people to identification documents, which led the Court to
affirm the existence of a systematic discriminatory pattern of expulsions against
Haitian people and people of Haitian descent.42
In the case of Expelled Dominicans and Haitians v. the Dominican Republic,
the Court established the obligation not to adopt practices or legislation con-
cerning nationality that in practice leads to the increase of stateless persons.43
Additionally, the right to nationality must be understood from two perspectives.
On the one hand, the right to nationality endows the individual with essential
legal protection to establish a connection with a specific State; on the other hand,
the right to nationality protects the individual against arbitrarily being deprived
of all political rights and civil rights.44 Thus, when legislating on nationality,
States should not only consider the duty to reduce statelessness but also the ob-
ligation to adopt an appropriate legal framework under the principle of equality
and nondiscrimination.45
39 Case of the Pacheco Tineo Family v. Plurinational State of Bolivia [2013] IACtHR, Ser. C No. 272,
para. 154.
41 Ibid.
42 Case of expelled Dominicans and Haitians v. the Dominican Republic [2014] IACtHR, paras.
192–198.
43 Salmón (n. 10), 318.
44 IACtHR, Case of expelled Dominicans and Haitians v. the Dominican Republic (n. 42), para. 254.
Table II.9.2 Summary table of IACtHR advisory opinions on rights of migrants.
Advisory Opinion Rights provided in the ACHR Group
Advisory Opinion • Obligation to respect and guarantee Migrants in an

18/03 (2003) human rights (Art. 1.1 CADH) irregular situation
• Principle of equality and
nondiscrimination (Arts. 1 and
24 CADH)
• The obligation of normative
adequacy (Art. 2 CADH)
Advisory Opinion • Due process guarantees applicable in Children
21/14 (2014) migratory processes involving girls
and boys (Arts. 8, 19, and 25 CADH)
• Guarantees for asylum applications
(Arts. 19, 22.7, and 22.8 CADH)
• Principle of nondeprivation of the
freedom of children due to their
immigration status (Arts. 7 and
19 CADH)
• Right to family life (Arts. 11.2 and 17
CADH)
Advisory Opinion • Right to seek and receive asylum Refugees and asylum
25/18 (2018) (Art. 22.7 CADH) seekers
The Court has also set standard within its consultative role, as shown in
Table II.9.2. The IACtHR in 2014 issued Advisory Opinion 21/14 on “Rights
and Guarantees of Children in the Context of Migration and/or in Need of
International Protection.”46 In this ruling, the IACtHR referred to the particular
vulnerability of this group and recognized that children are entitled to the right to
seek and receive asylum and may, in consequence, submit applications for recog-
nition of refugee status in their capacity, whether accompanied or not.47 Among
others, the IACtHR developed four main rights: (1) guarantees of due process
applicable to migratory processes involving girls and boys, (2) guarantees for
asylum applications, (3) the principle of nondeprivation of liberty of boys girls
because of their migration status, and (4) the right to family life.
Another IACtHR pronouncement came in 2018: Advisory Opinion 25/18 on
“The Institution of Asylum and its Recognition as a Human Right in the Inter-
American System of Protection.”48 Indeed, the institution of asylum includes
46 At the request of the States of Brazil, Argentina, Paraguay, and Uruguay.

47 IACtHR, “Rights and Guarantees of Children in the Context of Migration and/or in Need of
International Protection,” Advisory Opinion OC-21/14, August 19, 2014, para. 80.
48 At the request of the State of Ecuador, on the interpretation of asylum (Art. 22 CADH and Art.
XXVII DADDH).
all guarantees49 associated with the international protection of people who are
forced to leave their country of nationality or habitual residence.50 The primary
purpose of the institution is to preserve: (i) the protection that a State offers to a
person who is not of its nationality or who does not habitually reside in its terri-
tory; and, (ii) the principle of non-refoulement, or in others words the obligation
not to deliver said person to a different State where his or her rights to life, secu-
rity, freedom, and integrity are under imminent risk.51 This principle requires
the host State to carry out an individual and preliminary assessment of the risk
of return, granting the opportunity for the person to express their reasons for
fleeing, and deploy all necessary measures to protect the person in case a genuine
risk is proven. Furthermore, this principle must be understood in conjunction
with the prohibition of torture, since the duty of non-refoulement implies deter-
mining whether there is a well-founded presumption that a person is in danger
of being subjected to torture or cruel, inhuman, or degrading treatment.
Likewise, the IACtHR notes that the right to seek and receive asylum goes be-
yond a State prerogative and must be recognized as such, with legislative meas-
ures that allow the effective exercise of such a right under Article 22.7 of the
ACHR.52 In both advisory opinions, the Inter-American Court specifies that
the right to seek and receive asylum applies to refugees under the traditional ra-
tionale and according to the expanded definition of the Cartagena Declaration.53
In short, the Court has recognized the precarious position of migrants. It
has also provided rights such as due process in administrative procedures and
access to justice.54 Additionally, in a more concrete specification process, the
49 Refugee status, territorial asylum, diplomatic asylum, and equal protection.

50 IACtHR, “The Institution of Asylum and its Recognition as a Human Right in the Inter-
American System of Protection,” Advisory Opinion OC-25/28, May 30, 2018, Ser. A No. 25, para. 65.
51 IDEHPUCP, Documento resumen de la OC25/18: La institución del asilo y su reconocimiento
como derecho humano en el SIDH (IDEHPUCP 2018), 2, <https://cdn01.pucp.education/idehpucp/

wp-content/uploads/2018/10/01223946/dr-oc-25-18.pdf> (accessed February 5, 2022).
52 IACtHR, The Institution of Asylum and its Recognition as a Human Right in the Inter-American
System of Protection (n. 50), paras. 122–123.

53 Article 3 of Cartagena Declaration established : “Hence the definition or concept of a refugee
to be recommended for use in the region is one which, in addition to containing the elements of
the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their
country because their lives, safety or freedom have been threatened by generalized violence, foreign
aggression, internal conflicts, massive violation of human rights or other circumstances which have
seriously disturbed public order.” The Cartagena Declaration seeks to complement the conventional
definition in order to ensure greater protection for people who have experienced any of its five key
determinants of displacement. Cartagena Declaration on Refugees, Colloquium on the International
Protection of Refugees in Central America, Mexico and Panama. Adopted by the Colloquium on the
International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena,
Colombia from November 19 to 22, 1984.
For more information, see Luisa Feline Freier, Isabel Berganza, and Cécile Blouin, The Cartagena
Refugee Definition and Venezuelan Displacement in Latin America (International Migration 2020).
54 Procedural guarantees, detention and deprivation of liberty, equality and nondiscrimination,
an obligation of normative adequacy, prohibition of collective expulsions, the principle of

Inter-American System has addressed with particular interest the situation

of migrant children, both in its contentious cases and in its advisory opinions.
Nevertheless, it is appropriate to mention some pending issues on this matter.
See Tables II.9.1 and II.9.2.
2.4. Pending Issues
The rights of migrants in the region are still a matter of study and discussion for
the IAHRS. The central bodies of the System have undoubtedly given answers
to the protection and guarantee of migrant rights. However, the response has
not always been timely and has focused on the protection of some rights rather
than others. The reinforced protection of vulnerable groups in the IAHRS is at
an early stage. While State obligations concerning migrant children have been
recognized, there is little or no jurisprudence on other vulnerable groups that
also move across borders, such as women, the disabled, Indigenous populations,
and victims of human trafficking. The European and UN human rights systems
have greater jurisprudential and soft law development for these groups.
Attention to the particular needs and vulnerabilities of these groups has
resulted in reinforcing the content of the right to non-refoulement to serve as an
additional tool for the protection of the specific human rights enjoyed by these
people.55 This interpretation comes from the jurisprudence of the IAHRS, from
pronouncements by UN human rights bodies, and from precedents set by the
European Court of Human Rights (ECtHR).56 In the last three years the IACHR
has not submitted any substantive merits reports on alleged violations of migrant
rights to the IACtHR. However, in 2018 the IACHR granted a precautionary
measure to a Venezuelan woman with HIV who was at risk of deportation from
Panama.57 This decision demonstrates the level of interest and concern that the
IACHR has for the situation of migrants in the region.58
non-
refoulement, due process and access to justice within the framework of refuge request
procedures, obligation of normative adequacy, duty to prevent, avoid, and reduce statelessness.
55 Crisbeth Vigo, Estándares jurídicos para garantizar el derecho a la no devolución en el sistema
interamericano de derechos humanos: especial atención a algunos grupos en situación de vulnerabilidad

(PUCP 2019).
56 See M.S.S. v. Belgium and Greece [2011] ECtHR App. no. 30696/09; Sufi and Elmi v. the United
Kingdom [2011] ECtHR App. nos. 8319/07 and 11449/07; Yoh-Ekale Mwanje v. Belgium [2011]
ECtHR App. no. 10486/10; N. v. United Kingdom [2008] App. no. 26565/05; and D. v. the United
Kingdom [1997] ECtHR App. no. 30240/69.
57 IACHR, Resolution 81/ 18, Precautionary Measure 490/ 18— M.B.B.P., regarding Panama,
October 15, 2018, <https://www.oas.org/es/cidh/decisiones/pdf/2018/81-18MC490-18-PN.pdf>
58 See also IACHR, Resolution 2/18, “Forced Migration of Venezuelan People,” March 14, 2018.
The IACHR grants precautionary measures to protect migrant children separated from their families
Finally, despite the contribution of the IACHR to the justiciability of eco-

nomic, social, and cultural rights,59 there is still a long road ahead regarding the
development of these rights in relation to the protection of migrant populations.
3. The Transformative Impact of IAHRS Standards in Latin

America: An Analysis in Light of the Legal Frameworks
In this section we seek to identify how the standards of the Inter-American

System influence and transform the legal frameworks of Latin American States.
The normative framework on migration and asylum matters in the region is
complex and heterogeneous; therefore, it is difficult to identify the overall impact
of the IAHRS on this matter. Additionally, domestic judgments are increasingly
heeding IAHRS standards. All this translates into a complicated relationship be-
tween the IAHRS and States on this pressing regional issue.
3.1. The Transformative Impact on the Normative Frameworks

on Migration and Asylum in the Region
The normative frameworks of the countries in the region do not treat migra-
tion uniformly. Most South American countries—with the exception of Chile,
Colombia, and Paraguay—have liberalized their regulatory framework to in-
clude more protective provisions for foreigners and have thus become one of the
areas with the most considerable discourse in favor of the rights of migrants.60
Yet these reforms have taken place at different times and coexist with regula-
tory frameworks based on the doctrine of national security. Additionally, regula-
tion does not always move towards improving the protection of migrants’ rights.
There have also been some setbacks, as was the case in Argentina.61
in the United States, <https://www.oas.org/es/cidh/prensa/comunicados/2018/186.asp> (accessed

February 5, 2022).
59 Christian Courtis, “El aporte de los sistemas internacionales de derechos humanos
internacionales a la justicibilidad de los derechos económicos, sociales y culturales,” in Magdalena

Cervantes Algayde et al. (eds.), ¿Hay justicia para los derechos económicos, sociales y culturales?
Debate abierto a propósito de la reforma constitucional en materia de derechos humanos (Suprema
Corte de Justicia de la Nación 2014).
60 Diego Acosta Arcarazo and Luisa Feline Freier, “Turning the Immigration Policy Paradox
Upside Down? Populist Liberalism and Discursive Gaps in South America” [2018] 49 International
Migration Review 659–696.
61 Pablo Ceriani Cernadas, Migration Policies and Human Rights in Latin America: Progressive
Practices, Old Challenges, Worrying Setbacks, and New Threats, Policy Brief (2018) Global Campus
of Human Rights, <https://repository.gchumanrights.org/bitstream/handle/20.500.11825/629/Poli
cyBrief_LatinAmerica_ok.pdf?sequence=4&isAllowed=y> (accessed February 5, 2022).
According to Pablo Ceriani, there are three types of normative migration

frameworks in the region:62 (1) regulatory frameworks derived from mili-
tary dictatorships, (2) recent regulatory frameworks, and (3) those that are
undergoing a reform process.63 The first category includes those with the least
degree of incorporation of IAHRS standards, while those in the second group
incorporate most of them. In the first group, Chile—and to a lesser extent
Paraguay64—offers the most worrying case. For example, Chile has the oldest
migration law: Decree 1094, adopted by Pinochet in 1975 and based on the doc-
trine of national security, is still in force.65 To date, Chile has not adopted a new
normative migration framework despite a legislative proposal with a clear re-
strictive approach presented by President Sebastián Piñera.66 Another case
worth mentioning is Colombia, which does not have a law regarding migration
but only specific provisions adopted by the executive.67 According to Donna
Cabrera, Gabriela Cano, and Alexandra Castro, these norms do not establish a
62 Pablo Cernadas only analyzes the strict census migration regulation frameworks. We decided to
incorporate asylum rules into this classification based on our definition of migration and the impor-
tance of international protection standards.
63 Pablo Ceriani Cernadas, “Luces y sombras en la legislación migratoria latinoamericana”
[2011] 233 Revista Nueva Sociedad 75. At the time of writing, Chile and Colombia were in the
process of reforming their migration law. In the case of Chile, after many years of inertia, a bill was
presented in April 2018 with a restrictive approach. In the case of Colombia, a reform was presented
in 2019 that, according to the analysis made by a group of universities and civil society organiza-
tions, must be modified to include the IHRL standards on migration. See Ministerio del Interior y
Seguridad Pública, “Minuta: Reforma Migratoria y Política Nacional de Migraciones y Extranjería”
(April 8, 2018), <https://cdn.digital.gob.cl/filer_public/b0/09/b0099d94-2ac5-44b9-9421-5f8f3
7cf4fc5/nueva_ley_de_migracion.pdf> (accessed February 5, 2022); Carolina Stefoni, Claudia
Silva, and Sebastián Brito, “Migración venezolana en Chile: La (des)esperanza de los jóvenes,” in
Luciana Gandini, Victoria Prieto Rosas, and Fernando Lozano-Ascencio (eds.), Crisis y migración
de población venezolana: Entre la desprotección y la seguridad jurídica en Latinoamérica (UNAM
2019); Victoria Finn and Sebastian Umpierrez de Reguero, “Inclusive Language for Exclusive
Policies: Restrictive Migration Governance in Chile, 2018” [2020] 11 Latin American Policy 42–61;
CODHES, Servicio Jesuita a Refugiados Colombia, Programa de asistencia legal a población con
necesidad de protección internacional y víctimas del conflicto armado—Corporación Opción Legal,
Universidad Nacional de Colombia, Universidad de los Andes, Universidad Externado de Colombia
y Pastoral Social-Caritas Colombia, “Document for analysis of bill number Senate 036 through which
principles and regulatory framework of the comprehensive immigration policy of the Colombian
state are established” (March 20, 2020), <https://col.jrs.net/wp-content/uploads/sites/14/2020/06/
AnálisisProyLeyMigraciones2020.pdf> (accessed February 5, 2022).
64 The Migration Law, Law No. 978/96, 1996, <https://www.bacn.gov.py/leyes-paraguayas/3211/
ley-n-978-migraciones> (accessed February 5, 2022).

65 Francisca Vargas Rivas, “Una Ley de migraciones con un enfoque de derechos humanos,” in
Tomás Vial (ed.), Informe Anual sobre Derechos Humanos en Chile 2018 (Universidad Diego Portales
2018), 488, <https://derechoshumanos.udp.cl/cms/wp-content/uploads/2020/12/Vargas-Ley-Migr
aciones-2.pdf> (accessed February 5, 2022).
66 Carolina Stefoni, Claudia Silva, and Sebastian Brito, “Migración venezolana en Chile: La (des)
esperanza de los jóvenes,” in Luciana Gandini, Victoria Prieto Rosas, and Fernando Lozano-Ascencio
(eds.), Crisis y migración de población venezolana: Entre la desprotección y la seguridad jurídica en
Latinoamérica (UNAM 2019).
67 Decree 1067 of 2015 and Resolution 6045 of 2017.
protective legal framework for all migrants. On the contrary, they grant broad
discretionary powers to immigration authorities.68
We have found that most States in the second group have adopted new reg-
ulatory frameworks in the last ten years. It is difficult to categorically affirm
that these normative frameworks respond to the development of the IAHRS.69
However, it is clear that the general concern about migration and the specific
concern regarding migration as a human rights matter have a lot to do with the
expansion of these normative frameworks. Therefore, we propose looking into
the normative frameworks of the region according to the developmental stages
of the IAHRS.
A chronological list of norms adopted in the Americas is found in Table II.9.3.
Table II.9.3 demonstrates that the most productive periods of reforms to nor-
mative migration and asylum frameworks correspond to the two most fruitful
stages of the IAHRS.70 This development can be explained by the significant
concern of those States that were traditionally considered origin sites for migra-
tion, such as Peru, Ecuador, and Bolivia, but later became transit and destination
sites. Regional States also became more concerned about the human rights of
foreigners due to changes in migration dynamics. In addition, the obligations
imposed by the IAHRS by themselves generate the need to adapt national nor-
mative frameworks.
Recent regulatory frameworks are adopting a human rights approach based
on the right to equality and nondiscrimination as a basis for the recognition of
the rights of foreigners.71 Throughout the region, we find in these norms a range
of standards related to the end of migration criminalization, the right to non-
refoulement, and guarantees of due process.72 Likewise, despite its nonbinding
nature, the expanded definition of the Cartagena Declaration has been incor-
porated into the laws of fifteen countries in the region.73 Additionally, there is a
trend whereby regulatory frameworks now recognize these standards to a larger
extent (in the last stage), especially in the last four years. For instance, this is the
68 Donna Catalina Cabrera Serrano, Gabriela M. Cano Salazar, and Alexandra Castro Franco,
“Procesos recientes de movilidad humana entre Venezuela y Colombia 2016–2018,” in Luciana

Gandini, Victoria Prieto Rosas, and Fernando Lozano-Ascencio (eds.), Crisis y migración de
población venezolana: Entre la desprotección y la seguridad jurídica en Latinoamérica (UNAM 2019).
69 Pablo Ceriani Cernadas comments that the normative changes in the area of migration re-
garding the countries of the region toward a human rights approach can be explained in part by the
approval of the Mercosur Residence Agreement in 2002. Cernadas (n. 63).
70 We refer here to the third and fourth moment in the development of standards of the IAHRS.
71 All regulatory frameworks refer to this principle in their national regulations on migrants and
refugees, except Belize.

72 Cernadas (n. 63).
73 Cécile Blouin, Isabel Berganza, and Luisa Feline Feier, “The spirit of Cartagena? Applying the
extended refugee definition to Venezuelans in Latin America” [2020] 63 Forced Migration Review
64–66, <https://www.fmreview.org/cities/blouin-berganza-freier> (accessed February 5, 2022).
Table II.9.3 Adoption of the normative frameworks on migration and asylum

matters according to the development stage of the IACHR.
State Normative framework
Normative frameworks adopted during the stage of silence (until 2002)

Chile Decree 1094 (1975)
Paraguay Law No. 978/96, Migration Law (1996)
Brazil Refugee Act (1997)
Belize Immigration Act, Chapter 156 (2000)
Refugees Act, Chapter 165 (2000)
Venezuela Organic Law on Refugees or Refugees and Asylum Seekers (2001)
Peru Law No. 27891, Refugee Law (2002)
Paraguay Law No. 1938, General Law on Refugees (2002)
El Salvador Decree No. 918 (2002)a
Normative frameworks adopted during the initial IAHRS reactions stage (2003–2010)
Argentina Migration Law No. 25871 (2003)
General Law on Refugee Recognition and Protection Law No.
26165 (2006)
Venezuela Immigration Law, Law No. 37944 (2004)
Honduras Decree No. 208-2003, Migration and Foreigners Law (2004)
Uruguay Law No. 18076, Refugee Status Law (2006)
Law 18250 Migration (2008)
Panamá Decree Law No. 3 On the National Migration Service, the
Immigration Career and Other Provisions (2008)
Costa Rica Law 8764 Law on Migration and Foreigners (2009)
México Law on Refugees and Complementary Protection (2011)
Migration Law (2011)
Normative frameworks adopted during the standards development stage (2011 onward)
Chile Law No. 20430, establishes provisions on refugee protection (2010)
Nicaragua Law No. 761, General Law on Migration and Aliens (2011)
Bolivia Refugee Protection Law No. 251 (2012)
Migration Law No. 370 (2013)
Colombia Decree No. 2840, Whereby the Procedure for the Recognition of
the Status of Refugee, rules on the Advisory Commission for the
Determination of the Refugee Status and other provisions (2013)
(continued)
Table II.9.3 Continued
State Normative framework
Guatemala Migration Code (2016)

Brazil Migration Law 13445 (2017)
Ecuador Human Mobility Law (2017)b
Peru Legislative Decree No. 1350, Migration Law (2017)
Panama Executive Decree No. 5 (2018)c
El Salvador Decree No. 286: Special Law on Migration and Foreigners (2019)
a Regulates the protection of refugees.
b It is an integral framework on migrants, refugees, stateless persons, and victims of human

trafficking.
c It regulates the protection of refugees.
case for Ecuador’s 2017 Human Mobility Law, which recognizes all the standards
of the IAHRS.74
There is also a tendency in some countries to set higher standards than those
established by the IAHRS. Argentina and Uruguay, for example, recognize the
right to migration in their national migration laws.75 Ecuador, however, is the
most paradigmatic case, recognizing the right to migrate and universal citizen-
ship within its Constitution,76 rights not yet developed within the framework of
the IAHRS. However, there have been some setbacks. In 2017, Argentina adopted
the National Emergency Decree (DNU) No. 70/2017,77 which restricts the rights
of migrants previously granted by Law 25871. Additionally, Peru, following an
influx of migration from Venezuela,78 adopted temporary norms characterized
74 The right to non-refoulement for any person and the guarantees of due process in migratory
administrative procedures and in the framework of the refugee status determination; the duty to pre-
vent, avoid, and reduce statelessness, the guarantees of due process applicable in migratory processes
(boys and girls), the principle of nondeprivation of liberty of children by their family unit situation.
75 Art. 4 of Argentina Migration Law and Art. 1 of Uruguayan Migration Law.
76 Constitution of Ecuador, 2008, Art. 40 raises, among others, the right to migrate, and 416.6, uni-
versal citizenship.
77 Claudia Pedone et al., “De la estabilidad económica y la regularidad jurídica al ajuste
socioeconómico y la precariedad del trabajo: migración venezolana en la Ciudad Autónoma

de Buenos Aires,” in Luciana Gandini, Victoria Prieto Rosas, and Fernando Lozano-Ascencio
(eds.), Crisis y migración de población venezolana: Entre la desprotección y la seguridad jurídica en
Latinoamérica (UNAM 2019).
78 Almost 5.7 million Venezuelans had fled from their country. Colombia and Peru are the main
destination countries. UNHCR and IOM. R4V official website (2021), <https://www.r4v.info/es/
refugiadosymigrantes> (accessed February 5, 2022).
by their lack of coherence or clear legal grounds.79 Furthermore, Ecuador has

been increasing the entry barriers for Venezuelan people, marking a setback to
its constitutional framework.80
The complexity and heterogeneity of the adaptation process of regula-
tory reform—unfinished and many times more de jure than de facto—can be
explained by three main reasons. The first is linked to the migratory profile of the
countries that are both expellers and receivers of migrant populations. Colombia,
for example, receives the largest amount of Venezuelans and continues to be a
country that expels people in need of international protection.81 In countries,
such as Colombia and Peru, that are facing new realities such as Venezuelan
migration, we observe the fragility of this opening trend in migration policies.
Although both countries offer new possibilities to protect Venezuelan migrants
this trend coexists with setbacks, inconsistencies, and instabilities.82 Another
reason has to do with the relationship between States and the IAHRS in general.
Different States in the region are questioning the IAHRS in an attempt to weaken
the System.83 The number of cases and the number of public hearings before the
IACHR are signs, among others, of the level of contact between States and
the System. This can also influence how States receive these standards. Third, the
general situation of human rights and the rule of law in a given country are key
elements to consider when understanding progress and setbacks. Thus, political
changes, the use of migrants as scapegoats, and other violations of rights shed
some light onto this process of regulatory reform.
79 Cécile Blouin and Luisa Feline Freier, “Población venezolana en Lima: entre la regularización
y la precariedad,” in Luciana Gandini, Victoria Prieto Rosas, and Fernando Lozano-Ascencio

(eds.), Crisis y migración de población venezolana: Entre la desprotección y la seguridad jurídica
en Latinoamérica (UNAM 2019). Cécile Blouin et al., Estudio sobre el perfil socio económico de la
población venezolana y sus comunidades de acogida: una mirada hacia la inclusión (PUCP 2019),
<http://idehpucp.pucp.edu.pe/lista_publicaciones/estudio-sobre-el-perfil-socio-economico-de-
la-p oblacion-venezolana-y-sus-comunidades-de-acogida-una-mirada-hacia-la-inclusion-2/>
80 Ramírez Jacques, Yoharlis Lináres, and Emilio Useche, “(Geo)políticas migratorias, inserción
laboral y xenofobia: Migrantes venezolanos en Ecuador,” in Cécile Blouin (ed.), Después de la

llegada: Realidades de la migración venezolana (Themis-PUCP 2019); Diego Acosta, Cécile Blouin,
and Luisa Feline Freier, “La emigración venezolana: Respuestas latinoamericanas” [2019] 3
Documentos de trabajo, <https://www.fundacioncarolina.es/wp-content/uploads/2019/04/DT_FC_
03.pdf> (accessed February 5, 2022).
81 Liliana Lyra Jubilut and Rachel de Oliveira Lopes, “Forced Migration and Latin
America: Peculiarities of a Peculiar Region in Refugee Protection” [2018] 56 Archive des Völkerrechts
131–154.
82 Ibid. Cécile Blouin, “Complejidades y contradicciones de la política migratoria hacia la
migración venezolana en el Perú” [2021] 106 Colombia Internacional 141–164.

83 Salmón (n. 10).
3.2. The Recognition of the Standards of the IACHR in the

Judicial and Constitutional Spheres
This section analyzes the judicial and constitutional spheres of the regional
States and their use of IAHRS standards on migration matters.84 It should be
mentioned that this development is still in its initial stages and differs depending
on the country or subregion. This can be explained by the difficulties that
foreigners encounter—as a generally excluded demographic—when attempting
to access justice and by the diversity of the existing judicial control mechanisms
in migration matters. In recent years, however, we have observed an increasing
number of pronouncements on migration that develop human rights standards
for migrants. In this section, we present the most relevant judgments from dif-
ferent subregions to make visible the importance of the IAHRS in the develop-
ment of standards.85
The Argentine case is the most obvious place to start. Unlike in other coun-
tries where judicial review comes by exception through amparos or habeas
corpus, Argentine judges exercise control over immigration measures.86 This
has generated extensive jurisprudence on immigration control. In a recent
2018 judgment, the Federal Contentious Administrative Chamber indicated
that Argentina’s immigration policy must consider the special vulnerability
of migrants, since their situation can become extremely fragile, as stressed
by Advisory Opinion 03/10 and the Case of Dominican and Haitian People
v. Dominican Republic. Additionally, the court reaffirmed its standards on the
minimum guarantees of due process that should be applied to the immigration
procedures established in the Vélez Loor case against Panama and in the IACHR’s
report on human mobility.87
Mexico offers a further elaboration of this dynamic. In relation to a 2013 case
on immigration detention and due process, the Mexican Supreme Court made
84 For a broader look on transformative constitutionalism: Armin von Bogdandy, “Ius
Constitutionale Commune en América Latina: una mirada a un constitucionalismo transformador”

[2015] 34 Revista Derecho del Estado 3.
85 Due to difficulties in accessing complete information, this is not an exhaustive review of all the
judgments on this matter in Latin America but an initial approach to the subject.
86 Lila García Emilse, “Decisiones de la Corte Suprema de Justicia de la Nación (Argentina) sobre
control migratorio (2004–2018)” [2019] 3 Périplos: Revista Las Políticas Migratorias 84.
87 Federal Contentious-Administrative Chamber—Chamber V, Judicial Power of the Nation of
Argentina. File No. 3061/2017. Judgment of March 22, 2018, <https://www.cels.org.ar/web/wp-cont

ent/uploads/2018/03/fallo-camara-migrantes.pdf> (accessed February 5, 2022). Another relevant
decision is Attorney General’s Office, “Zhang, Peili” Cause No. FMP 81048271/2009. Judgment of
April 27, 2016, <https://www.mpf.gob.ar/dictamenes/2016/VAbramovich/abril/Z_FMP_81048271_
2009.pdf> (accessed February 5, 2022). For an analysis of the judgments in immigration matters
in Argentina, see also Diego Morales, “Derechos humanos de los migrantes en Argentina: Apuntes
sobre nuevas perspectivas jurisprudenciales” [2012] 1 Revista Derecho Público 345.
express reference to Advisory Opinion OC-16/99.88 A more recent case on im-

migration detentions before the Eighth District Court of Amparo concerning
administrative matters in Mexico City draws on different IACHR standards
contained in Advisory Opinion 18/03, Vélez Loor v. Panama and the Pacheco
Tineo Family v. Bolivia cases of the Inter-American Court.89
The Andean region of Chile is interesting for our purposes because the
country’s Supreme Court has generated a systematization of immigration cases
brought to this Court between 2010 and 2018.90 It reveals that the Chilean
Supreme Court has been willing to rule on the guarantees of due process in the
context of migration and is following the jurisprudence of the Inter-American
Court, though without mentioning it explicitly.91 Similarly, in relation to cases
about the right to nationality, the Chilean Supreme Court makes direct refer-
ence to the ACHR.92 Additionally, the Santiago Court of Appeals analyzed the
case of migrants living in an irregular situation, making express reference to the
provisions of the Inter-American Court in the Advisory Opinion on the legal
status and rights of undocumented migrants.93
In Ecuador, one can identify different judgments of its Constitutional Court
regarding international protection, which take into account the standards of
the IAHRS.94 A recent case involves an appeal for precautionary measures filed
against the imposition of passport requirements for Venezuelan people en-
tering Ecuadorian territory. The Constitutional Court of Ecuador declared this
measure inadmissible, arguing that border controls that deny Venezuelan people
entry and then return to their point of departure would imply a violation of the
right to non-refoulement. To this end, the Court made direct references to the
88 Supreme Court of Justice of the Nation. Direct protection under review 517/2011. Judgment
of January 23, 2013, <https://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.

aspx?AsuntoID=125754> (accessed February 5, 2022).
89 Eighth District Court of Amparo in administrative matters of Mexico City. Judgment No. 357/
20188 June 2018, <http://cmdpdh.org/wp-content/uploads/2018/07/sentencia.pdf> (accessed

February 5, 2022).
90 Supreme Court of Chile. Legal Collections Magazine: “Migrantes” (Dirección de Estudios de
la Corte Suprema: Santiago 2019), <http://decs.pjud.cl/download/revista-colecciones-juridicas-

migrantes/> (accessed February 5, 2022).
91 Miriam Henriquex Viñas, “La jurisprudencia de la Corte Suprema como agente transformador
en la protección de la libertad personal de los migrantes” (2020) MPIL Research Paper Series No.
2020-04, 12, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3545196> (accessed February
5, 2022).
92 For instance: Supreme Court File 10.897/2013, Judgment of January 14, 2014.
93 Court of Appeals of Santiago, Cuartel Borgoño Case. File 351- 2013. Judgment of March 9,
2013, <https://studylib.es/doc/5048594/sentencia-de-la-corte-de-apelaciones--santiago—cuatro>
94 Constitutional Court of Ecuador. Judgment No. 002-14-SIN-CC. Case No. 0056-12-IN and
0003-12-IA, August 14, 2014, <https://www.uasb.edu.ec/documents/62017/1489475/002-14-

SIN-CC/91d0c9de-a640-4c0a-a8dc-50efe2e4db0e?version=1.0.> (accessed February 5, 2022).
Constitutional Court of Ecuador. Judgment No. 090-15-SEP-CC. Case No. 1567-13-EP, March
25, 2015.
ACHR, particularly Article 22.8, as well as several of the precedents mentioned

in this chapter, such as the Nadege Dorzema et al. v. the Dominican Republic and
the Pacheco Tineo Family v. the Plurinational State of Bolivia cases.95
When considering the situation in Peru, it is important to mention a recently
adopted judgment from the country’s Constitutional Court.96 The Court cited
the Vélez Loor v. Panama and the Pacheco Tineo Family v. Bolivia cases in order to
determine that Peru must respect at all times the standards of due process, as well
as the guarantees derived from it, even if the migrant person is in an irregular sit-
uation. Another compelling case from Peru is the habeas corpus petition granted
in 2018 against the decision of the National Superintendence of Migration to
impose mandatory passports for Venezuelan people entering Peru. Although
the request was declared partially founded, the National Superintendency of
Migration and the Ministry of Interior appealed the judgment and obtained
a new ruling that completely revoked the previous judgment.97 Now the
Constitutional Court must determine, as was the case for Ecuador, the limits of
migration policy concerning the rights of Venezuelan migrants, especially con-
cerning the right to non-refoulement.
Additionally, we find in the jurisprudence of the Constitutional Court of
Colombia some progress regarding standards that go beyond those laid out by
the IAHRS. The Columbian Constitutional Court has recently set standards for
the right to health of Venezuelan migrants by using standards from the Universal
System of Human Rights. On that basis, the Court ordered that the right to
health of a Venezuelan woman who was denied radiotherapy and chemotherapy
treatments be guaranteed, as well as to a minor who needed an operation. This
judgment sets standards not yet established in the IAHRS and addresses some of
the pending problems mentioned previously.98
In short, this quick review shows that the IACHR has played a crucial role in
the adoption of new normative frameworks and in responses to a number of spe-
cific cases put before several of the region’s domestic justice systems that deter-
mine and specify the content of the rights of migrants. Additionally, the region
95 Constitutional Court of Ecuador. Sentence relapsed in Case No. 0014-19-IN, March 27, 2019,
<http://doc.corteconstitucional.gob.ec:8080/alfresco/d/d/workspace/SpacesStore/327ea82c-7604-
4a52-8261-8a189c85b1bf/0014-19-in-auto> (accessed February 5, 2022).
96 Peruvian Constitutional Court File No. 02744-2015-PA/TC. Judgment from November 8, 2016,
<https://www.tc.gob.pe/jurisprudencia/2016/02744-2015-AA.pdf> (accessed February 5, 2022).

On the award see the following note: <http://idehpucp.pucp.edu.pe/notas-informativas/una-
sentencia-galardonada-lo-establece-tc-derechos-los-migrantes/> (accessed February 5, 2022).
97 Superior Court of Lima. File No. 06488-2018-0-1801-JR-PE-05. Judgment of October 5, 2018,
<https://static.legis.pe/wp-content/uploads/2018/10/Exp.-06488-2018-0-1801-JR-PE-05-2-32-
Legis.pe_.pdf>.
98 Colombian Constitutional Court, Judgment T-500/18, Guardianship action presented by Luisa
Alejandra Bravo Sainea and Lázaro Valdés Carrillo, through a legal representative, against the Special
Administrative Unit for Migration Colombia-Regional Andina, Judgment of December 9, 2018.
has proven to be open to the development of standards related to what in this

chapter we have called pending issues. With this, mutual feedback and possible
transformative impacts are observed between the IAHRS and a number of States
in the region. In this sense, these national developments can help to consolidate
a protection framework for migrants in the region and inspire the IAHRS to fur-
ther develop standards on issues still pending.
It can be said that despite the identified progress, the protection of the rights of
migrants is still a relatively new issue for the IAHRS. As yet there is no consol-
idation of standards on the matter of migration within the IAHRS. Given the
regional migration dynamics, it is likely that in the following years standards will
have addressed some of the pending issues mentioned above.
With regards to transformative impacts, we have seen that the majority of
the States in the region have adopted increasingly protective internal norma-
tive frameworks that guarantee the rights of migrants. However, numerous gaps
persist between the regulation and its implementation. Likewise, when facing
specific crises—such as the Venezuelan one—there have been some setbacks re-
garding the construction of normative frameworks. Regarding these setbacks,
it is vital to remember the standards of the IAHRS. On the other hand, how-
ever, the IAHRS standards have influenced the judicial and constitutional work
of Latin American States, particularly Chile, Ecuador, Argentina, and Colombia.
In some cases, national courts have set standards that go beyond those raised
by the IAHRS. Nonetheless, significant challenges remain concerning the trans-
formative impacts linked to the still incipient role of national courts in defending
the rights of migrants in the region and their possible setbacks. We should finally
note that the recent rulings in Ecuador and Peru following Venezuelan migra-
tion suggest the relevance of strategic litigation in this field, a point that should
not be neglected.
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
By Melina Girardi Fachin
1. Introduction
This chapter examines how the Inter-American Human Rights System (Inter-
American System, or IAHRS) responds to violations of the rights of human
rights defenders in the framework of the right to defend rights. Focusing prima-
rily on the case of Escaleras Mejía and Others v. Honduras, decided by the Inter-
American Court of Human Rights (Inter-American Court, or IACtHR) in 2018,
the chapter addresses common challenges in the implementation of protections
for human rights defenders in Latin America.
Defending human rights in Latin America has always been risky due to the
region’s high rates of violence. The Inter-American System began to address this
challenge in 2000 in response to demands from civil society. The IAHRS devel-
oped and started to enforce standards specific to human rights defenders.1
Violence against human rights defenders has also increased alongside the
spread of the democratic setbacks and authoritarianism throughout Latin
America in recent years. For example, city councilor Marielle Franco, a Brazilian
human rights defender who spoke out against the police’s deadly raids in densely
populated favelas, was assassinated in 2018. Her murdered remains unre-
solved, although some suspect the involvement of high-level Brazilian political
authorities.
All violations of the rights of human rights defenders, including those of the
rights of defender Carlos Escaleras Mejía, are attempts to silence those who draw
1 See, e.g., IACHR, “Report on the situation of human rights defenders in the Americas” (2006);
IACHR, “Second Report on the situation of human rights defenders and defenders in the Americas”
(2012).
Melina Girardi Fachin, The Human Right to Defend Human Rights in the Inter-American System In: The Impact
of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo
Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Melina Girardi Fachin 2024.
DOI: 10.1093/oso/9780197744161.003.0021
The Human Right to Defend Human Rights 389
attention to rights violations and impunity in the face of these violations. The
recent IACtHR case of Escaleras Mejía and others v. Honduras, the focus of this
chapter, further examines the normative grounds of the right to defend rights in
the inter-American corpus juris.2
Escaleras Mejía concerns the killing of Carlos Escaleras Mejía, a mayoral can-
didate and environmental activist, in 1997. Before his death, Escaleras Mejía was
threatened, pressured, and offered bribes to withdraw his candidacy. Escaleras
Mejía has been recognized as a human rights defender because he publicly
denounced many illegal activities that harmed the environment.
This chapter is divided into three sections. The first section explains who
human rights defenders are and how global, regional, and domestic legal sys-
tems protect them. The second section analyzes both the procedure and the
substance of the IACtHR’s judgment in the case of Escaleras Mejía. Finally, the
third section examines the transformative impact of the Inter-American System
on human rights defenders’ work in Latin America, especially at the current
moment.
This subject was selected to demonstrate the gap between inter-American
standards and human rights practices in the region. The specific case,
Escaleras Mejía, will be analyzed in detail not only because it is one of the
Inter-American Court’s most recent judgments on the subject but also be-
cause it contributes significantly to the elaboration of the right to defend
rights. The line of jurisprudence leading up to this case will also be analyzed,
as will this jurisprudence’s impact on the IAHRS, States, and, most impor-
tantly, victims.
The chapter focuses on the transformative potential of the Inter-American
System and its impact about human rights in the Americas. The IAHRS has
succeeded in elaborating and disseminating norms related to the respect for
human dignity through strengthening the inter-American corpus juris.3 Inter-
American standards have enabled reductions in national deficits, encouraged
advances in legislative frameworks and public policies on human rights, and
prevented setbacks in the protection of human rights.
The standards on human rights defenders developed by the IACtHR have
facilitated the protection of defenders themselves and of those on whose behalf
the defenders advocate, as the analysis of Escaleras Mejía will demonstrate. The
2 Sérgio García Ramirez, “La ‘navegación americana’ de los derechos humanos: hacia un Ius
Commune,” in Armin von Bogdandy, Mariela Morales Antoniazzi, and Eduardo Ferrer Mac-Gregor
(coords.), Ius Constitutionale Commune en América Latina: textos básicos para su comprensión
(Instituto de Estudios Constitucionales del Estado de Querétaro; MPIL 2017).
3 Daniel O’Donnel, Derecho Internacional de los Derechos Humanos. Normativa, jurisprudencia y
doctrina de los sistemas universal e interamericano (Oficina en Colombia del Alto Comisionado de las
Naciones Unidas para los Derechos Humanos 2004), 57–59.
390 Melina Girardi Fachin
Inter-American Court has recognized that protecting human rights defenders

is not only a matter of securing their right to defend rights but also essential
for the operation of the IAHRS. Human rights defenders drive the work of the
Inter-American System because they are the ones who alert the IAHRS to rights
violations not only against themselves but against all victims.
2. Human Rights Defenders: Multilevel Approach
This section introduces international law’s multilevel approach to the protection

of human rights defenders.4 It emphasizes the importance of dialogue between
the different protective levels to protect human rights effectively. Institutions with
distinct mandates coexist and complement each other in ways that strengthen
respect for human dignity. The interactions of plural institutions create a larger
regime that protects individuals and their rights.
Out of the contemporary framework of human rights has arisen a “new public
order”5 that impacts the entire international community by making interna-
tional human rights principles a condition and limit on State practices. The ar-
ticulation of this new order and its relationship with domestic law is based on
the principles of a pro personae principle6 (i.e., a victim-centered approach) and
subsidiarity.7
This is the essence of common Latin American constitutional law, or Ius
Constitutionale Commune en América Latina (ICCAL).8 The coexistence of
global, regional, and domestic legal systems has established a new paradigm of
human rights based on mutual dialogue that not only enhances protection for
individual victims but also the situation of human rights throughout the region.
This chapter examines the rights of human rights defenders within the ICCAL
framework.
4 Ingolf Pernice, Constitutional law implications for a state participating in a process of regional
integration. German Constitution and “multilevel constitutionalism” (German Rapport to the XV

International Congress on Comparative Law 1998), 2–3.
5 Armin von Bogdandy, Flávia Piovesan, and Mariela Morales Antoniazzi (coords.), Estudos
avançados em direitos humanos: democracia e integração jurídica: emergência de um novo direito

público (Campus 2012), xiv/xv.
6 Alejandro Rodiles, “The Law and Politics of the Pro Persona Principle in Latin America,”
in Armin von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America (Oxford
7 Simon Hentrei, Complementary Adjudication: Legitimating International Judicial Authority in
the Americas (DPhil thesis, University of Frankfurt am Main 2018), 79.

8 Armin von Bogdandy, “Ius Constitutionale Commune en América Latina: observations
on Transformative Constitutionalism,” in Armin von Bogdandy et al. (eds.), Transformative

Constitutionalism in Latin America (Oxford University Press 2017), 27–48.
2.1. Global System
Since 1948, the UN human rights system has served as the foundation for the
promotion of the international rights of the individual. The United Nations
adopted a minimalist set of standards and obligations concerning a variety of
rights, including the rights of human rights defenders.
The Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms (UN Declaration on Human Rights Defenders, or
Declaration), enacted in 1998,9 was the set of international principles to focus on
the right to defend rights. Since then, it has served as a model for domestic and
regional systems. Although the UN Declaration on Human Rights Defenders is
not binding, States are nevertheless obligated to enforce its content because it
has been approved by consensus in the UN General Assembly and because it
concerns rights contained in binding international treaties.10
The Declaration comprehensively articulates defenders’ rights and corre-
sponding State’s responsibilities. Articles 2, 9, 12, 14, and 15 concern the State
obligations, including the duty to protect, promote, and implement all human
rights and to ensure that all persons under their jurisdiction are able to enjoy
all social, economic, political, and other rights and freedoms in practice.11
Additionally, Article 4 of the UN Declaration on Human Rights Defenders
clarifies that the Declaration should not be used to impair, contradict, restrict,
or derogate from other international instruments such as the International
Covenants on Human Rights, which contain standards recognized by most of
the international community.
The Declaration provides minimum standards for the UN system and be-
yond. It also seeks to answer three fundamental questions about human rights
defenders: Who are they? What are their rights? Who is obliged to protect their
rights?
In response to the first question, Who are human rights defenders?, the
Declaration defines defenders broadly and inclusively as all individuals who ad-
vocate for human rights. Article 1 of the Declaration provides: “Everyone has the
right, individually and in association with others, to promote and to strive for the
protection and realization of human rights and fundamental freedoms at the na-
tional and international levels.”12 In other words, advocating for human rights is
all that is required to make someone a human rights defender.
9 General Assembly, General Resolution No. 53/144 UN A/RES/53/144, “Declaration on the

Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms” (March 8, 1999).
10 OHCHR 2011.
11 Article 2 UN Declaration on Human Rights Defenders 1999.
12 OHCHR 1999.
As for the second question, What are their rights?, the Declaration includes
many. Some, however, stand out as particularly relevant for the work of human
rights defenders: the right to meet or assemble peacefully; the right to form, join,
and participate in nongovernmental organizations, associations, or groups;13
the right to communicate with nongovernmental or intergovernmental organ-
izations; the right to know, seek, obtain, receive, and hold information about
all human rights and fundamental freedoms;14 the right to develop and discuss
new human rights ideas and principles; the right to have adequate access, on a
nondiscriminatory basis, to participation in their State’s government;15 the right
to benefit from an effective remedy and to be protected in the event of the vi-
olation of their rights;16 the right to exercise their occupation or profession;17
and the right to participate in peaceful activities protesting violations of human
rights and fundamental freedoms.18 This set of rights constitutes the core of legal
protection for human rights defenders and their activities. Identifying this core is
essential to understand the content of the right to defend rights.
Finally, in response to the question of Who is obliged to protect the rights of
defenders?, the UN Declaration on Human Rights Defenders focuses—as most of
international human rights law does—on States. The Declaration provides that
States have the “prime responsibility and duty to protect, promote and imple-
ment all human rights and fundamental freedoms” and that, to comply with their
obligations, States should “adopt[] such steps as may be necessary to create all
conditions necessary in the social, economic, political and other fields, as well as
the legal guarantees required to ensure that all persons under its jurisdiction, in-
dividually and in association with others, can enjoy all those rights and freedoms
in practice.”19 Additionally, the Declaration provides that States are obligated to
promote and facilitate education in human rights for everyone, but especially for
lawyers, law enforcement, the armed forces, and public servants.20
The Declaration also highlights the importance of the role individuals, non-
governmental organizations, and relevant institutions play in the protection
of human rights. It emphasizes that not only State, but also non-State actors
contribute to the promotion and protection of human rights in the interest of
strengthening, among others things, “understanding, tolerance, peace and
friendly relations among nations and among all racial and religious groups.”21

Although the UN Declaration on Human Rights Defenders does not expressly

include a right to defend rights, one can be inferred from the Declaration’s grouping
together of civil, political, economic, social, and cultural rights and accompanying
State obligations. The right to defend rights can thus be reached through an “um-
brella” approach22 that unifies different human rights. UN standards concerning
human rights defenders have also greatly influenced regional and domestic
articulations of the right to defend rights, which will be discussed in the next
sections.
2.2. Regional Systems
Regional systems also have recognized the work of human rights defenders.
Operating in more homogeneous contexts that enable innovations suited to their
regional specificities, these systems have had the opportunity to advance the protec-
tion of human rights defenders in ways that complement global standards. Each re-
gional human rights system has developed its own approach to the topic of human
rights defenders. The African System, like the UN System, adopted a declaration,
while the American and European Systems issued resolutions and guidelines.
In 2009, the European Union adopted guidelines about human rights
defenders with the goal of improving their protection. The European Union
based its guidelines on the commitments of the Organization for Security and
Cooperation in Europe (OSCE) and on universally recognized human rights
standards. The guidelines expressly stated that they “do not set new standards or
seek to create ‘special’ rights for human rights defenders but concentrate on the
protection of the human rights of those who are at risk as a result of their human
rights work.”23 The guidelines’ aim was thus not to establish new rights but “to
contribute to promoting equal protection of human rights for all.”24 In line with
the mandate of the OSCE Office for Democratic Institutions and Human Rights
(ODIHR), which prepared the document, the guidelines were framed as a tool
“to support participating States in the implementation of their human dimen-
sion commitments related to the protection of human rights defenders.”25
The General Assembly of the Organization of American States (OAS) has is-
sued a resolution on human rights defenders every year since 1999.26 Mirroring
22 Katarina Tomasevski, Development Aid and Human Rights Revisited (Pinter Publishers
1993), 48.
23 ODIHR 2016, 6.
24 ODIHR 2016, 6.
25 ODIHR 2016, 6.
26 OAS General Assembly, AG/ RES.1671 (XXIX- O/ 99), “Human rights defenders in the
Americas, support for the individuals, groups, and organizations of civil society working to promote
and protect human rights in the Americas,” Res. 2 (June 7, 1999).
the principles embodied in the UN Declaration on Human Rights Defenders,

the OAS resolutions recognize the work of human rights defenders and call on
States to ensure the ability of human rights defenders to do that work.27 Notably,
in Resolution No. 2941 on “Promotion and Protection of Human Rights,” the
OAS General Assembly asserted that its motivation for adopting a resolution on
human rights defenders was “member states’ historic concern for situations that
prevent or hamper the work of human rights defenders at the national and re-
gional levels in the Americas.”28
In 1999, the African Union adopted the Grand Bay Declaration and Plan of
Action, which underlines the importance of protecting human rights defenders
and calls on African States to act. The declaration also reaffirms the African
Union’s commitment to the purpose and principles stated in the Charter of the
Organization of African Unity (OAU), in the Charter of the United Nations, the
Universal Declaration of Human Rights, and the African Charter on Human
and Peoples’ Rights. The First OAU Ministerial Conference on Human Rights
in Africa, which prepared the declaration, called it a historic milestone, and
encouraged African States to implement it.29
Although the primary instruments of the regional systems do not expressly
refer to human rights defenders, the resolutions, guidelines, and declaration
mentioned here provide a basis from which regional human rights mechanisms
can extract the right to defend rights using systematic and evolutive interpre-
tation. This also illustrates the working methods of the regional systems. They
develop human rights norms both through interpreting human rights treaties
as living instruments30 and through jurisdictional tools or quasi jurisdictional
tools, as in the case of the Inter-American Commission on Human Rights (Inter-
American Commission, or IACHR) and the African Commission on Human
and Peoples’ Rights. The section on the inter-American standards on human
rights defenders will return to this point.
2.3. Domestic Systems
The global and regional standards mentioned previously concentrate on States’

obligations to promote and protect human rights. As per the subsidiarity prin-
ciple, the State has the primary responsibility for the protection of human
27 OAS General Assembly, AG/RES. 2941 (XLIX-O/19), “Promotion and Protection of Human
Rights” (June 28, 2019), 134–135.

28 Ibid., 133–135.
29 Grand Bay (Mauritius) Declaration and Plan of Action 1999.
30 Villagran Morales et al. v. Guatemala (The Street Children Case) [1999] IACtHR, Ser. C No. 63.
rights.31 International systems act when States fail to comply with their human
rights obligations.
Domestic law and international law affect each other. Due to the rich dia-
logue between international and domestic legal systems, many Latin American
countries have incorporated international standards for the protection of human
rights defenders into domestic law and policy.
In the Inter-American System, Honduras is the State against which the highest
number of cases concerning defenders’ rights violations have been brought, even
though Honduras has expressly recognized the existence of the right to defend
human rights at the domestic level in Article 1 of the Law on the Protection of
Human Rights Defenders, Journalists, Social Communicators, and Justice
Officials. Similarly, Mexico has passed legislation that protects human rights
defenders and journalists.32
Other countries in the IAHRS, such as Brazil and Colombia, have created ad-
ministrative programs to protect human rights defenders. Brazil set up the
National Program for the Protection of Human Rights Defenders (PPDDH) within
the Secretariat for Human Rights of the Presidency of the Republic. The National
Policy of Protection for Human Rights Defenders was created in 2009. Decree No.
9937/2019 established the PPDDH to coordinate measures to protect people who
work protecting human rights.33 Colombia has protected human rights defenders
through the nongovernmental program Somos Defensores, created in 1999. In
2011, Decree No. 4065 established the Unidad Nacional de Protección.
This landscape of legislation and administrative programs concerning human
rights defenders appears, to a greater or lesser extent, in most States of the region.
Nevertheless, States often fail to protect human rights defenders as required by
domestic and international law.
Latin America experiences high rates of violence against human rights
defenders, which has been increasing in recent years.34 A wave of conservative
populism touting anti–human rights discourses in the region has threatened
human rights defenders by framing them as enemies of the State.35 The assassi-
nation of Brazilian councilwoman Marielle Franco, mentioned in the introduc-
tion to this chapter, illustrates how important it is to promote the protection of
human rights defenders in this violent context.
31 César Rodríguez Garavito, El derecho en América Latina. Un mapa para el pensamiento jurídico
del siglo XXI (Siglo Veintiuno Editores 2011).

32 For more information on protection policies at Colombia and Mexico, Global Justice, see “Guia
de Proteção para Defensoras e Defensores de Direitos Humanos,” <http://www.global.org.br/wp-

content/uploads/2016/09/guia-DDHs-final.pdf > (accessed February 5, 2022).
33 Decree No. 9937/2019.
34 Ibid.
35 Esther Solano Gallego, “La bolsonarización de Brasil” [2019] 121 Documentos de Trabajo
(IELAT, Instituto Universitario de Investigación en Estudios Latinoamericanos), 1, 18.

The Inter-American System addresses this situation with ICCAL, through which
domestic and international courts share responsibilities in accordance with the
principle of subsidiarity and the idea that transformative constitutionalism can be a
driving force for social change in Latin America. The connections ICCAL draws be-
tween the Inter-American Court and national courts enables the latter to confront
the threat to human rights posed by authoritarian populism.36
Due to its transformative mandate, the IAHRS plays a crucial role in strengthening
domestic protections for human rights defenders and unifying movements that ad-
vocate on behalf of human rights defenders.
3. IACtHR Jurisprudence on Defenders
This section reviews the IACtHR’s jurisprudence on human rights defenders,

culminating in the Escaleras Mejía case. The Inter-American System engages with
emancipatory struggles for rights and justice specific to Latin America. The IAHRS
aims to encourage State compliance with human rights obligations by, among other
things, setting in motion cooperative efforts that facilitate each State’s implementa-
tion of its commitments and consider States’ diversity and pluralism. Collaboration
and dialogue are among the IAHRS’s tools for generating a transformative impact
based on common standards of human rights in the region.
Cooperation between regional and local systems advances transformative con-
stitutionalism in Latin America, giving momentum to human rights–oriented
social change. The IACtHR develops and disseminates the standards of the
inter-American corpus juris, which provide a baseline of protection for human
rights. These protective standards have encouraged the adoption of legislation
and public policies that protect human rights defenders, prevented backlashes,
and strengthened the capacities of human rights defenders in the struggle for
rights and justice. The Inter-American Court has done this through its jurispru-
dence on human rights defenders. The IACtHR proclaimed the existence of a
right to defend rights through its interpretation of international norms and de-
spite the absence of an express provision containing this right in the American
Convention on Human Rights (American Convention, or ACHR).37 This vis
expansiva38 of the IACtHR is especially important because Latin America is
36 Cristóbal Rovira Kaltwasser et al. (eds.), The Oxford Handbook of Populis (Oxford University
Press 2017).
37 Flávia Piovesan, “Direitos Humanos e diálogos entre jurisdições” 19 [2012] Revista brasileira de
Direito Constitucional 68.

38 Eduardo Ferrer Mac-Gregor, “What Do We Mean When We Talk About Judicial Dialogue?
Reflections of a Judge of the Inter-American Court of Human Rights” [2017] 30 Harvard Human
Rights Journal 89.
characterized by a high degree of social exclusion, inequality, and threats to de-

mocracy. In this context, those who choose to fight against injustice and defend
human rights are particularly vulnerable.
When domestic institutions fail to respect, protect, and fulfill human rights,
the human rights defenders turn to the IAHRS for protection. The Inter-
American Court protects human rights defenders in two ways. First, the IACtHR
strengthens respect for the Rule of Law and human rights.39 Second, the IACtHR
aims to address structural challenges as well as individual violations, facilitating
a transformative impact. As Armin von Bogdandy40 has explained, the decisions
of international courts shape international law in ways that affect domestic law.
International standards become legal reference points for domestic legal actors
and generate ICCAL through cooperation and dialogue.
Much of the Inter- American System’s jurisprudence on human rights
defenders involves the State of Honduras, but as explained previously, these cases
are of regional interest. Honduras’s experience is relevant to the Americas as a
whole. Since the beginning of the 1990s, Honduran environmental activists have
defended nature. Their efforts have been met with harassment, threats, assault,
and murder.
In 2012, the UN Special Rapporteur on the situation of human rights defenders
(UN Special Rapporteur) issued a report about her visit to Honduras in which
she expressed concern about “the degree of violence affecting people claiming
their economic, social and cultural rights, including land rights, by peaceful
means.”41 In response to the report, the State of Honduras created a special
group to investigate the deaths of environmental activists. Nevertheless, as the
Inter-American Court confirmed in the case of Kawas Fernández v. Honduras,
the State did “not implement[] an overall public policy aimed at protecting the
supporters of human rights, in particular environmental activists.”42 In 2016, the
UN Special Rapporteur and the IACHR’s Rapporteur on the Rights of Human
Rights Defenders and Justice Operators noted that Honduras had become one of
the most dangerous countries in the Americas for human rights defenders.
This section analyzes the impact of the cases of Luna López v. Honduras, Kawas
Fernández v. Honduras, and Carlos Escaleras Mejía and others v. Honduras on the
protection of human rights defenders in the IACtHR.
39 This forms what Dworkin has called a “chain novel.” Ronald Dworkin, Uma questão de princípio
(Luís Carlos Borges tr., Martins Fontes 2000), 236.

40 Armin von Bogdandy, “Ius Constitutionale Commune in América Latina: observations
on Transformative Constitutionalism,” in Armin von Bogdandy et al. (eds.), Transformative

Constitutionalism in Latin America (Oxford University Press 2017).
41 A/HRC/22/47Add.1, para. 73.
42 Kawas Fernández v. Honduras [2009] IACtHR, para. 70.
3.1. Luna López v. Honduras (IACtHR)
On October 10, 2013, the IACtHR declared the State of Honduras internationally
responsible for violating its obligation to guarantee Carlos Antonio Luna López’s
right to life and his family’s right to humane treatment.
Carlos Antonio Luna López was a city councilor in the town of Catacamas,
Honduras, who denounced and introduced policies against illegal tree logging in
the area. Since his investigations and political actions had affected the interests of
local politicians, Luna López began to receive threats. Then, on May 18, 1998, he
was shot while leaving the city after a town council meeting. He died while on his
way to the hospital.
The petitioners claimed that there had been an unwarranted delay in the in-
vestigation and prosecution of those responsible for the murder of Luna López.
In its analysis of Article 4 of the American Convention, which contains the right
to life, the Inter-American Court reiterated that the States’ obligations to human
rights defenders, including environmental activists, becomes more relevant in
countries where these defenders are targeted with threats, acts of violence, and
killings.
When considering the right to humane treatment, contained in Article 5 of
the ACHR, the IACtHR found that the State’s failure to guarantee Luna López’s
right to life caused psychological and emotional trauma to his family. The sit-
uation of continuous risk to which his family was exposed (which was further
aggravated by threats and irregularities that occurred during the investigation)
inflicted suffering, anguish, and feelings of insecurity, frustration, and helpless-
ness on Luna López’s family members.
3.2. Kawas Fernández v. Honduras
On April 3, 2003, the IACtHR issued its judgment in the case of Kawas Fernández
v. Honduras. It declared that the State was partially responsible for the extraju-
dicial execution of Blanca Jeannette Kawas Fernández because it had hindered
investigations and legal proceedings related to her execution. Specifically, the
Inter-American Court found that the State had violated the rights to a fair trial
and judicial protection, enshrined in ACHR Articles 8(1) and 25(1), respec-
tively, in conjunction with ACHR Article 1.1’s general obligation to respect and
guarantee human rights, to the detriment of Kawas Fernández, as well as Jacobo
Roberto Kawas Cury, Selsa Damaris Watt Kawas, Jaime Alejandro Watt Kawas,
Jacobo Roberto Kawas Fernández, Jorge Jesús Kawas Fernández, and Carmen
Marilena Kawas Fernández.
Kawas Fernández was well known in Honduras as a defender of the environ-

ment. On February 6, 1995, while working at home with her assistant in the city
of Tela, Kawas Fernández was shot in the neck and died instantly.
The State began a criminal investigation. Nevertheless, when the IACtHR
heard the case, the domestic criminal proceedings were still in a prelimi-
nary phase. The Inter-American Court held that the authorities in charge of
investigating Kawas Fernández’s death delayed the collection of relevant testi-
mony for so long that they impeded the fact-finding process.
The IACtHR explained that States have a duty to respect and to ensure the
right to life and that the duty to ensure rights requires States to take positive ac-
tion. The Inter-American Court held that the State had violated its obligation
to take positive action regarding Kawas Fernández’s right to life by failing to
punish those responsible for the death of Kawas Fernández. Fourteen years had
passed since Kawas Fernández was murdered and the State had not identified the
perpetrator. The IACtHR concluded that evidence indicated that State agents,
including those charged with investigating the case, had been involved in the
events that led to Kawas Fernández’s death, a conclusion which the State has not
disproved.
The Inter-American Court additionally said that “[r]‌eaching any other con-
clusion would entail allowing the State to resort to its own negligence or inef-
ficacy for the criminal investigation to release itself from responsibility for the
violation of Article 4(1) of the [American] Convention.”43
The IACtHR developed its jurisprudence on human rights defenders in Luna
López and Kawas Fernández. These cases then provided a foundation for the
Inter-American Court’s judgment in the case of Escaleras Mejía in 2018.44
3.3. Escaleras Mejía v. Honduras
Before arguing that the Escaleras Mejía case illustrates the transformative impact
of the Inter-American System, this section describes the facts of the case and the
proceedings before the Inter-American Commission.
At approximately 6:30 p.m. on October 18, 1997, Carlos Escaleras Mejía was
returning from a political meeting when two men emerged from the shadows
and shot him in the back. Escaleras Mejía was taken to the hospital but did
not survive surgery. Escaleras Mejía was one of the most distinguished po-
litical leaders of the Aguán Valley. He led several human rights organizations,
which mainly focused on environmental issues. Escaleras Mejía denounced and
43 Kawas Fernández v. Honduras [2009] IACtHR, para. 97.

44 Ronald Dworkin, Uma questão de princípio (Luís Carlos Borges tr., Martins Fontes 2000).
opposed the companies that dumped toxic substances in local rivers. Due to
his activism, Escaleras Mejía received death threats and eventually was killed.
Like the cases of Kawas Fernández and Luna López, the case of Escaleras Mejía
illustrates the atmosphere of insecurity and the persecution of environmental
activists in Honduras.
Impunity aggravates this situation. The State’s investigation into the facts sur-
rounding Escaleras Mejía’s death was not exhaustive, impartial, or effective. On
January 13, 2003, the Center for Justice and International Law (CEJIL) filed a pe-
tition with the Inter-American Commission alleging that Honduras had violated
ACHR Articles 1(1), 4, 8, and 25 by failing to undertake an exhaustive and effec-
tive investigation and to punish those responsible for Escaleras Mejía’s death, as
well as by failing to adopt effective measures to prevent crimes against human
rights defenders.
CEJIL also alleged that Honduras had violated Article 5 of the American
Convention with respect to Escaleras Mejía’s family members by failing to
hold those responsible for the crime accountable, to undertake a serious and
effective investigation, and to provide effective domestic legal remedies. The
Inter-American Commission declared the case admissible on February 24,
2005,45 and issued a report on the merits in June 2014. In the merits report, the
IACHR concluded that the State was responsible and made recommendations
to Honduras.46 The Inter-American Commission relied on prior decisions
against Honduras when establishing the State’s responsibility in the case of
Escaleras Mejía.
Following the Inter- American Commission’s recommendations, the
petitioners and the State signed a friendly settlement agreement.47
In this agreement, the State recognized that it had violating Escaleras Mejía’s
rights to life, freedom of association, and participation in government (ACHR
Articles 4.1, 16.1, and 23, in conjunction with Article 1.1), as well as his family
members’ rights to humane treatment, a fair trial, and judicial protection (ACHR
Articles 5, 8, and 25, in conjunction with Article 1.1).
Although the State made significant progress toward compensating the
victims and complying with the measures of satisfaction, the State did not make
significant progress in its criminal investigations. For this reason, the IACHR de-
cided the case should proceed to the IACtHR.
On September 22, 2017, the Inter-American Commission submitted the case
of Escaleras Mejía to the Inter-American Court. The IACHR requested that the
45 Carlos Escaleras Mejía [2005] IACHR, Report No. 15/05.

46 Carlos Escaleras Mejía and Family Honduras [2014] Case 12.492, IACtHR, Report No. 43/14,
OEA/Ser. L/V/II. 151, Doc. 8.
47 “Friendly Agreement in Compliance with the recommendations of the Inter- American
Commission on Human Rights in the Report on the Merits No. 43/14.”
IACtHR find the State internationally responsible and to consider the measures
already adopted by the State as a result of the friendly settlement agreement.
Afterward, the parties filed a joint request to the Court to approve the agreement,
in which the State acknowledged its responsibility for the events and committed
to providing reparations. The victims requested that the Inter-American Court
develop the content of the right to defend human rights in its judgment. The
friendly settlement did not foreclose the possibility of consideration of the merits
by the IACtHR.
The Inter-American Commission itself highlighted: “[T]‌he pertinence of the
joint request of the parties concerning the development of the content of the
right to defend human rights is an important element to strengthen the [Inter-
American] Court’s line of jurisprudence [ . . . ] on this subject.”
Now that this section has reviewed the case’s facts and procedure, the fol-
lowing section will explain how the IACtHR used Escaleras Mejía to transform
the protection of human rights defenders in the Americas.
4. The Right to Defend Rights: The Legacy of Escaleras Mejía
The cases against Honduras described in the previous section form an impor-
tant part of the Inter-American Court’s jurisprudence on the right to defend
rights. The IACtHR’s jurisprudence on human rights defenders begins with the
premise that their work is essential to strengthening democracy and the rule of
law. In this way, the right to defend rights grows out of earlier IACtHR juris-
prudence concerning rights violations that hinder the consolidation of the rule
of law,48 including decisions regarding the strengthening of institutions and the
limitations on States’ use of force. The first case ruled by the Inter-American
Court, Velásquez Rodríguez v. Honduras, concerns enforced disappearance and
the State’s duties to prevent, investigate, and sanction any violation of the rights
contained in the American Convention.
Similarly, in the case of Godínez Cruz v. Honduras, the IACtHR held the State
responsible for leaving enforced disappearances in impunity and thus creating
conditions under which they would continue. The Inter- American Court
reiterated this reasoning in La Cantuta v. Peru, in which it found the State re-
sponsible for systematic enforced disappearances. The IACtHR has established
that States must initiate serious, impartial, and effective investigations ex officio
and without delay in the event of serious human rights violations.
48 Flávia Piovesan, “Ius constitutionale commune latino-americano em Direitos Humanos e o
Sistema Interamericano: perspectivas e desafios” [2017] 8 Revista Direito e Práxis 1362.

The IACtHR’s cases on the protection of human rights defenders also form part
of its jurisprudence concerning the consolidation of the rule of law. According
to inter-American standards, the protection of human rights in a democratic
society depends on effective and appropriate guarantees that human rights
defenders will be free to do their work.49 Human rights defenders are essential to
ensuring States’ compliance with human rights norms and complement the role
of the Inter-American System.
Latin America, which has long had a poor record on the protection of human
rights defenders, has recently experienced an increase in violence against and
criminalization of defenders, especially environmental activists like those in the
Honduran cases.50
The case of Escaleras Mejía is important because it consolidates the
IACtHR’s prior jurisprudence in the umbrella concept of the right to defend
rights.51 The IACtHR has determined that the rights relevant to the work of
human rights defenders are ACHR Articles 4, 5, 8, 16, 23, and 25, in con-
junction with Article 1.1. Together, these rights obligate States to ensure that
human rights defenders enjoy the protection they need to do their work. The
Inter-American Court has not, however, expressly recognized the right to de-
fend rights as a stand-alone right, preferring to treat it as an umbrella concept.
In Escaleras Mejía, the IACtHR derived the right to defend rights from the
following rights.
4.1. Right to Life (Article 4.1 of the American Convention)
ACHR Article 4(1) provides that all individuals have a right to life. Often, vio-
lence against human rights defenders results in death, a violation of their right
to life.
Murders, assaults, forced disappearances, threats, persecution, and other
forms of violence target and impede the work of human rights defenders. State
agents frequently participate in this violence or enable it through a failure to
investigate violent acts with due diligence, as in the case of Escaleras Mejía,
Marielle Franco, and many others.
49 IACHR, “Report on the Situation of Human Rights Defenders in the Americas” (2006),
para. 124
50 Global Witness Report (July 2020), <https://www.globalwitness.org/en/press-releases/pior-
ano-da-história-para-ativistas-do-meio-ambiente-e-da-terra-pelo-menos-200-assassinados-em-
2016-enquanto-crise-se-espalha-ao-redor-do-mundo/> (accessed February 5, 2022).
51 Katarina Tomasevski, Development Aid and Human Rights Revisite (Pinter Publishers 1993).
4.2. Right to Freedom of Association (Article 16 of the

American Convention)
The Inter-American Court has interpreted ACHR Article 16.1 to contain both
negative and positive obligations. The State not only must respect the freedom of
individuals to associate without interference, but it also must protect those who
exercise this right from non-State interference as well as investigate any violation
of this right.52
The State thus is obligated not only to refrain from interfering with human
rights defenders’ freedom of association but also to ensure that human rights
defenders can exercise this right freely and without fear of violence.
The Inter-American Court has also found that the right to freedom of asso-
ciation is closely connected to the exercise of other rights, including the right to
a healthy environment derived from Article 26 of the American Convention.53
The IACtHR has established that the right to a healthy environment is a funda-
mental human right and that degradation of the environment negatively affects
the enjoyment of this right. Moreover, the Inter-American Court has clearly
stated that States have an obligation to ensure that their actions do not impair the
enjoyment of fundamental rights. In the case of Escaleras Mejía, there was evi-
dence that Escaleras Mejía was targeted due to his defense of the environment, a
legitimate exercise of the freedom of association.
4.3. Right to Participate in Government (Article 23.1.b of the

American Convention)
Participation in government is one of the rights that enables the defense of

human rights, as illustrated by the case of city councilor Marielle Franco, who
was shot dead, along with her driver, in March 2018 due to her criticism of police
violence in Rio’s favelas.
Similarly, the harassment and threats suffered by Escaleras Mejía were
connected not only to his defense of human rights in general but also more spe-
cifically to his running for office. In the weeks leading up to his death, Escaleras
Mejía was harassed, threatened, and even offered money in exchange for
withdrawing his candidacy.
52 IACHR, “Report on the Situation of Human Rights Defenders in the Americas” (2006), para. 50.
53 IACtHR, Advisory Opinion OC-23/17, “State obligations in relation to the environment in the
context of the protection and guarantee of the rights to life and to personal integrity: interpretation
and scope of Articles 4(1) and 5(1) in relation to articles 1(1) and 2 of the American Convention on
Human Rights,” November 15, 2017.
As in its prior jurisprudence,54 the Inter-American Court explained that the

right to defend human rights involves the exercise of a combination of other
rights, which, like all human rights, are interdependent and indivisible.
4.4. Rights to a Fair Trial and to Judicial Protection (Articles

8.1 and 25.1 of the American Convention)
When a human rights defender is harmed, the State has an obligation to ensure
impartial and timely justice. This implies an exhaustive collection of the relevant
information and an exploration of all relevant lines of investigation to identify
the perpetrators of the attack.
The obligation to investigate the impairment of human rights defenders’
rights is reinforced by the fact that the defense of human rights can only be freely
exercised when the defender is not subject to threats, harassment, or physical or
psychological assault. In the case of Escaleras Mejía, shortcomings, irregularities,
and omissions in the investigation contributed to a considerable delay in
identifying and punishing the perpetrators. The failure to clarify the motive be-
hind the attack on Escaleras Mejía resulted in impunity.
The Inter-American Court also held the State responsible for violating the
rights of Escaleras Mejía’s family, since the domestic investigations and proceed-
ings had not been effective in ensuring access to justice, establishing the facts,
investigating, and punishing those responsible, or redressing the consequences
of the attack.
4.5. Right to Humane Treatment (Article 5.1 of the American

Convention)
The IACtHR also found a violation of the family’s right to humane treatment be-
cause of the anguish caused by the lack of adequate protection and the profound
suffering that stemmed from it.
4.6. Right to Freedom of Expression and Right of Assembly

(Articles 13 and 15 of the American Convention)
Although the Inter-American Court did not discuss the right to freedom of ex-
pression or the right of assembly in Escaleras Mejía, the IACtHR had analyzed
54 H. Case of Human rights defender et al. v. Guatemala [2014] IACtHR, Ser. C No. 283, para. 129.
these rights in prior cases concerning human rights defenders. According to the
Special Representative of the UN Secretary-General on the situation of human
rights defenders, violations of defenders’ right to freedom of expression leads to
self-censorship.55 ACHR Article 13 thus has not only an individual dimension
but also a collective dimension, affecting how entire societies share and receive
ideas and information.56
The freedom of assembly is also an important element of the right to defend
human rights. In the case of López Lone v. Honduras, the Inter-American Court
found the freedom of expression and the freedom of assembly to be necessary
components of the “right to defend democracy.” The Inter-American Court also
established in that case that the right to defend rights “involves . . . the joint ex-
ercise of other rights, such as freedom of expression and freedom of assembly.”57
The list of rights that the IACtHR has discussed thus far in relation to the right
to defend rights is not exhaustive. Depending on the circumstances of the case
involving human rights defenders, other rights may be relevant.
The right to defend human rights is thus an umbrella concept that encompasses
many rights. Although there is no single, established formula for the right to
defend rights, the IACtHR has identified a set of essential attributes. This right
represents a complex synthesis of rights that bring together values such as polit-
ical participation, social justice, and sustainability, and that require international
cooperation as well as State action.
4.7. The Autonomous Right to Defend Rights
In the Escaleras Mejía case, the Inter-American Court expressly decided not to
examine the existence of an autonomous right to defend the rights, despite the
parties’ request that it did so. Previously, in the case of Human Rights Defender
and others v. Guatemala, the IACtHR states that “there is an international con-
sensus regarding the activities carried out by human rights defenders to promote
and protect human rights, among others.” There, also, the Inter-American Court
stopped short of identifying an autonomous right to defend rights.
Although the IACtHR could have gone further in recognizing the right to
defend rights, the Escaleras Mejía case represents a step in this direction, espe-
cially when compared to the previous cases against Honduras highlighted previ-
ously. The scope of the umbrella concept of the right to defend rights was better
55 UN, “Report of the Special Representative Hina Jilani on the situation of human rights
defenders,” para. 20.

56 López Lone et al. v. Honduras case [2015] IACtHR, Ser. C No. 302, para. 166.
57 López Lone et al. v. Honduras case [2015] IACtHR, Ser. C No. 302, para. 164.
defined, and the Inter-American Court mentioned the existence of the right to
defend rights even though it did not analyze it independently from other rights.
In the Escaleras Mejía case, the IACtHR missed a significant opportunity
to establish the existence of an autonomous right to defend rights in the inter-
American corpus juris. This right is especially important to Latin America given
the prevalence of violence against human rights defenders in the region. The de-
fense of human rights in Latin America is a dangerous activity that has endan-
gered the lives and liberties of thousands of defenders like Escaleras Mejía.
Challenges to human rights demand that courts, especially the international

courts, create a common law (ICCAL) that sets shared standards oriented toward
the adequate protection of human rights in the framework of a democratic so-
ciety. Through an analysis of Escaleras Mejía and others v. Honduras, this chapter
has reviewed inter- American standards on human rights defenders, while
emphasizing shared regional challenges and the impact of the Inter-American
System, as well as interaction among global, regional, and domestic standards.
This chapter focused on the case of Escaleras Mejía v. Honduras, one of the
most recent IACtHR cases and the one that made the most significant advances
in developing the law around the protection of human rights defenders.
More recently, in June 2022, the case of Gabriel Salles Pimenta versus Brazil58
was ruled by the IACtHR. The Court considered the State responsibility in the
death of Gabriel Salles Pimenta, a rural workers’ rights advocate, in 1982. He was
murdered amidst violence linked to land and agrarian reform demands in the
State of Pará. Pimenta had received multiple threats related to his work and had
sought protection from the State, but his pleas went unheeded. He was fatally
shot in 1982. The subsequent investigation, which concluded in 2006 due to a
statute of limitations decision, was marred by numerous State omissions.
The Inter-American Court of Human Rights found that the Brazilian State
violated various human rights, including the right to life, justice, and association.
It recommended comprehensive reparations for the victim’s family, a diligent
investigation, and measures to prevent such incidents in the future, including
strengthening the protection for human rights defenders.
In its Merits Report, the Court made several recommendations to the Brazilian
State, including implementing measures of nonrepetition, strengthening
the Program for the Protection of Human Rights Defenders with a focus on
preventing violence against defenders of the rights of rural workers, conducting
58 Sales Pimenta v. Brazil case [2022] IACtHR, Ser. C No. 454.

an independent and thorough assessment of the situation of human rights

defenders in the context of land conflicts to detect and eradicate risk factors
they face (including land distribution disparities), and enhancing the capacity
to investigate crimes against human rights defenders in line with the guidelines
outlined in the report.
Human rights defenders play a crucial role in advocating for the protection
of human rights and ensuring that governments adhere to international human
rights standards. When cases involving human rights defenders are brought be-
fore the Inter-American Human Rights System, it serves as a significant plat-
form to highlight and address violations against these individuals. Such cases
can set important precedents, emphasizing the importance of protecting those
who work tirelessly to uphold human rights and hold governments accountable.
These cases underscore the necessity of safeguarding freedom of expression, as-
sociation, and assembly for all citizens and reinforce the importance of a robust,
effective, and impartial human rights protection mechanism within the region.
The recognition of the right to defend rights is necessary to strengthen the
protection of defenders and prevent their being killed, criminalized, harassed,
and threatened as part of efforts to halt the progress of their vital work. This
recognition is especially important in many Latin American countries, which
struggle with high levels of repression, inequality, and violence.
Although the Inter-American Court did not expressly recognize the right
to defend rights as a stand-alone right in Escaleras Mejía, it defined the right’s
contours by emphasizing its umbrella quality and examining the political, so-
cial, and environmental dimensions of the defense of rights. In addition to this,
the IACtHR underlined the importance of the Court’s function to protect both
individual defenders and the broader community. Similarly, the Inter-American
Commission has stated that “when a person is kept from defending human
rights, the rest of society is directly affected.”59
The Inter-American System saves lives.60 There is, of course, room for im-
provement. The IAHRS has not, for example, prevented the murders of Carlos
Escaleras Mejía, Marielle Franco, and many other defenders. Nevertheless, the
standards that the IAHRS has developed in response to these tragic events will
help to protect many human rights defenders and other victims in the region.
This will be achieved through the interaction of domestic, regional, and inter-
national standards culminating in the regional transformative constitutionalism
we call ICCAL.
59 IACHR, “Report on the situation of human rights defenders in the Americas” (2006), para. 34.
60 Flávia Piovesan, “Ius constitutionale commune latino-americano em Direitos Humanos e o
Sistema Interamericano: perspectivas e desafios” [2017] 8 Revista Direito e Práxis 1362.
II.11
The Inter-American Human Rights
System’s/ICCAL’s Impact on Transitions
to Democracy from the Perspective
of Transitional Justice
By Christina Binder
1. Introduction
In Latin America, transitions to democracy have often involved an engagement

with major human rights violations committed by former regimes (frequently
military dictatorships).1 The question of how to deal with past crimes is thus cru-
cial for developing and consolidating new democratic norms and institutions in
Latin American States. It is a test of practice for the Inter-American Human Rights
System and, more particularly, the Ius Constitutionale Commune en América
Latina (ICCAL).2 The impact of the Inter-American Human Rights System (and
of ICCAL) on transitions to democracy will indeed relate to its ability to deal with
these violations at the domestic level and its corresponding support for domestic
institutions. Still, what are parameters to measure this impact?
This chapter argues that the concept of Transitional Justice provides rele-
vant parameters and will thus draw on the concept for guidance. According
to the definition contained in a report by the UN Secretary- General,
Transitional Justice is “the full range of processes and mechanisms associ-
ated with a society’s attempts to come to terms with a legacy of large scale
past abuses, in order to ensure accountability, serve justice and achieve
1 An earlier iteration of this chapter was published under the title “The Prohibition of Amnesties
by the Inter-American Court of Human Rights,” in Armin von Bogdandy and Ingo Venzke (eds.),
International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global
Governance (Springer 2012), 295–328. The author wishes to thank Verena Jackson for her valuable
research assistance.
2 In this chapter, ICCAL refers to the transformative potential of the Inter-American Human
Rights System, most importantly to the Inter-American Court of Human Rights (IACtHR), which
has unfolded—as will be argued—as a set of regional constitutional laws based on human rights.
Christina Binder, The Inter-American Human Rights System’s/ICCAL’s Impact on Transitions to Democracy from the
Perspective of Transitional Justice In: The Impact of the Inter-American Human Rights System. Edited by: Armin von
© Christina Binder 2024. DOI: 10.1093/oso/9780197744161.003.0022
Impact on Transitions to Democracy 409
reconciliation.”3 Transitional Justice, therefore, concerns the question of how to

deal with past human rights violations and is central to transitions toward a more
peaceful, democratic society. It provides the parameters to measure both success
and scale of democratic transitions as well as the impact of the Inter-American
Human Rights System on these transitions.
Transitional Justice has three dimensions: retributive, restorative, and distri-
butive. Retributive justice refers to forms of reparations that primarily aim to
criminally prosecute perpetrators; restorative and distributive justice, however,
put the victims at center stage and aim to make good the harm that occurred.
Restorative justice does this by giving a voice to victims, by establishing the truth
through an official historical record of what happened, by hearing confessions
of guilt by perpetrators, and through institutional reforms. Distributive jus-
tice instead focuses on (monetary) compensation. As will be shown, all these
components are of relevance in Latin America.
Since many Latin American States passed amnesty laws in the course of their
transitions to democracy, the question of how to qualify these amnesties for past
human rights violations arose. As will be shown, blanket amnesties run against the
very idea of Transitional Justice. Amnesty laws were subject to a rich case law of the
Inter-American Court of Human Rights (IACtHR) and were found to violate key
provisions in the American Convention on Human Rights (ACHR).4 Accordingly,
the IACtHR’s case law on amnesties is of crucial importance for democratic
transitions. More particularly, the Inter-American Human Rights System and the
Inter-American Court have contributed to the realization of all three aspects of
Transitional Justice when dealing with amnesty laws that contravene the ACHR.
2. Enabling Transitions to Democracy in Latin

America: How to Deal with Past Human Rights Violations
from the Perspective of Transitional Justice
In the course of democratic transitions, the question of amnesties proved a major

concern in Latin America. Domestic amnesty laws in many countries, such as
3 UN Security Council, Report of the Secretary-General, “The rule of law and transitional justice
in conflict and post-conflict societies,” August 23, 2004, UN Doc. S/2004/616, para. 8. See alsoAnja
Seibert-Fohr, “Transitional Justice in Post-Conflict Situations,” in Anne Peters and Rüdiger Wolfrum
(eds.), The Max Planck Encyclopedia of International Law (Oxford University Press 2008), para.
1: “Transitional justice describes a field of international law which is concerned with the question
how to confront a situation of past large-scale human rights violations and humanitarian abuses in a
period of transition to peace and democracy.”
4 See Barrios Altos v. Peru [2001] IACtHR, Ser. C No. 75; La Cantuta v. Peru [2006] IACtHR, Ser.
C No. 162; Almonacid Arellano v. Chile [2006] IACtHR, Ser. C No. 154; Gelman v. Uruguay [2011]
IACtHR, Ser. C No. 221; Case of the massacre of El Mozote and nearby places v. El Salvador [2012]
IACtHR, Ser. C No. 252; Gomes Lund et al. v. Brazil [2010] IACtHR, Ser. C No. 219.
410 Christina Binder
Argentina, Chile, and Uruguay,5 de facto established impunity for past violations.
In Peru, then President Alberto Fujimori passed a number of amnesty laws in 1995,
shielding himself and other human rights perpetrators against prosecution for
crimes committed in the context of their fight against left-wing guerrilla fighters in
the early 1990s.6 Thus, the three dimensions of Transitional Justice—retributive,
restorative, and distributive—were set aside at the domestic level. In Latin America,
therefore, transitions to democracy often came “at a price”: it proved difficult for
the nascent and still fragile democracies to struggle against impunity as many of
the human rights perpetrators remained in influential positions.7 At the same
time, the “quality” of the respective amnesty laws diverged significantly. In coun-
tries like Peru and Chile, quasi self-amnesties were passed by the former regimes.
Similarly, in Argentina the previous regime exercised sufficient pressure in favor
of the provision of amnesty laws.8 In other parts of the region, amnesties seemed
to be the result of a national deliberation process. In Uruguay, for example, the am-
nesty deal was brokered between the political parties and the armed forces, subse-
quently passed by Parliament, and upheld twice by popular referenda in 1989 and
2009.9,10
5 See, for instance, the notorious Punto Final and Obediencia Debida Acts in Argentina, which
were passed in 1986 and 1987, respectively, and brought investigations on human rights violations
committed by the military junta between 1976 and 1983 to a practical halt. See also the 1978 Chilean
amnesty decree law (Decreto Ley No. 2191, April 19, 1978; Diario Oficial No. 30.042), which estab-
lished the nonresponsibility for crimes committed between September 11, 1973 (the military coup
by Pinochet) and March 10, 1978. For Uruguay, see the Law Nullifying the State’s Claim to Punish
Certain Crimes/Limitations Act/Law of Expiry, Law No. 15848, December 22, 1986.
6 Law (Ley) No. 26479, “Conceden amnistía general a personal militar, política y civil para
diversos casos,” June 14, 1995, published in Normas Legales, No. 229 (1995), 200; modified by Ley No
26492 “Precisan interpretación y alcances de amnistía otorgada por La Ley No 26479,” June 28, 1995,
published in Normas Legales, No. 230, 1995, 8.
7 See, e.g., Argentina, where President Carlos Menem, in view of the danger of a new military
coup, pardoned around thirty top junta leaders in 1989 who had been imprisoned for human rights
abuses (Decree 1002/89). The Decree was recently declared unconstitutional by the Argentine
Supreme Court; see Mazzeo Julio Lilo y otros, Judgment of July 13, 2007, in Jurisprudencia Argentina
2007-III-573).
8 Ibid.
9 The Expiry Law was approved on December 22, 1986, by the Uruguayan parliament, and ac-
cording to Article 1: “It is recognized that, as a consequence of the logic of events stemming from the
agreement between the political parties and the Armed Forces signed in August 1984, and in order to
complete the transition to full constitutional order, the State relinquishes the exercise of penal actions
with respect to crimes committed until March 1, 1985, by military and police officials either for po-
litical reasons or in fulfillment of their functions and in obeying orders from superiors during the de
facto period.” See Wayne Sandholtz, unpublished paper, “Juggling Rights, Juggling Politics: Amnesty
Laws and the Inter-American Court,” 33: “The Gelman v Uruguay case was the first in which the
IACtHR ruled expansively in a case that did not involve a self-amnesty. The Uruguayan amnesty law
(the ‘Expiry Law’) was subject to a democratic process by which a majority of the population chose to
uphold it on two occasions, first in a referendum held in 1989 and two decades later through a plebi-
scite in 2009.”
10 Note that also the Supreme Court of Justice of Uruguay captioned orders “Detta, Josefina;
Menotti, Noris; Martínez, Federico; Musso Osiris; Burgell, Jorge s/unconstitutionality of the Law
15.848. Arts. 1, 2, 3 and 4,” Judgment No. 112/87, resolution of May 2, 1988, evidence, folios 2256
to 2318 upheld in a first judgment the constitutionality of the law. In a second judgment on October
While the procedural legitimacy of the various amnesty laws differs—with self-
amnesties being the most problematic—the result is the same: impunity for major
human rights violations in disregard of the different dimensions of Transitional
Justice. A key issue when discussing the impact of the Inter-American System on
democratic transitions, therefore, relates to the System’s contribution to realizing
the different dimensions of Transitional Justice at the domestic level and its sup-
port for national efforts in the fight against impunity. Indeed, the Inter-American
System has eased transitions by pushing States to uphold certain minimum
requirements. So what were the requirements set by the Inter-American Court’s
amnesty jurisprudence for the domestic level, and what was their impact?
The following layers can be distinguished: Firstly, there are substantive
standards that focus on ending impunity for major human rights violations and
the right of victims and their family members to truth, due process, and com-
pensation. Secondly, there are supportive strategies and techniques of norm con-
trol that give a maximal effect to standards and jurisprudence at the domestic
level, namely, the nullification of amnesty laws and the Inter-American Court’s
conventionality control. And thirdly, when discussing the impact of the ICCAL
on democratic transitions, there are broader democratic considerations like
strengthening domestic institutions, the separation of powers, and the rule of
law; the independence and impartiality of domestic tribunals vis-à-vis the ex-
ecutive seems especially crucial in societies emerging from a violent and often
authoritative past. These layers will be examined in turn to determine the impact
of the Inter-American Human Rights System on democratic transitions.
3. Inter-American Human Rights Standards within a

Multilevel Legal System of Law
A preliminary question relates to the position that the inter-American human

rights standards occupy in the multilevel system of law present in Latin American
States. Indeed, this position is a decisive factor in determining the potential im-
pact of the inter-American standards on democratic transitions.
So how does the Inter-American System work, and what is its place in the
internal order of States, as well as, more generally, in the multilevel system of
law? With regards to the international level, the ACHR is a treaty binding on
the States parties to it. The ACHR establishes international obligations and
19, 2009 the Supreme Court of Uruguay rendered Judgment No. 365 in the case of “Sabalsagaray
Curuchet Blanca Stela,” where it declared the unconstitutionality of Articles 1, 3, and 4 of the Law and
resolved the inapplicability in the specific case at hand. See also Gelman (n. 4), paras. 145 et seq. Also,
the impact of the ICCAL varies, as will be shown, depending, inter alia, on the different “qualities” of
adoption of the amnesty laws.
sets human rights standards applicable to the domestic sphere.11 A violation

of these standards entails the international responsibility of the State in ques-
tion in accordance with the International Law Commission’s (ILC) Articles on
State Responsibility.12 However, even though the international responsibility
of a State in breach of its obligations is at stake in such situations, there are no
automatic consequences at the domestic level. Rather, the consequences at the
domestic level depend on the legal and constitutional system of the respective
State. A State’s constitutional order determines the incorporation of interna-
tional obligations—including, therefore, the ACHR—and is thus of importance
for the ACHR’s domestic effect. The ACHR has been given a high rank in the in-
ternal constitutional hierarchy of most Latin American States, commonly with a
self-executing character attributed to the rights enshrined in the Convention.13
This considerably facilitates the reception of the ICCAL and the Inter-American
Court’s jurisprudence.14 Thus, the domestic impact of the ACHR—and the case
law of the IACtHR in the interpretation of the ACHR—is considerable. As will be
shown, this impact is also supported by the Inter-American Court’s techniques of
norm control: the nullification of amnesty laws and the conventionality control.
The constitutional setup in most Latin-American countries is thus primed to
give a maximum effect to the ICCAL and its standards. It also supports the Inter-
American Human Rights System’s impact on democratic transitions.
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”
The amnesty jurisprudence of the inter-American human rights institutions has

a considerable history, reaching back several decades. Already in the 1980s the
11 The ACHR is a treaty that has to be complied with by the States party to it (Art. 26 Vienna
Convention on the Law of treaties (VCLT): pacta sunt servanda; and Art. 27 VCLT).
12 ILC, “Draft Articles on Responsibility of States for Internationally Wrongful Acts” [2001] 2
Yearbook of the International Law Commission (Part Two).

13 See Allan Brewer Carías, “La interrelación entre los Tribunales Constitucionales de America
Latina, la Corte Interamericana de Derechos Humanos, y la Cuestión de la inejecutabilidad de sus

decisiones en Venezuela” [2009] unpublished paper 6 et seq. and 13. This is of particular importance
for the conventionality control explained later. In fact, norm control regarding the constitution-
ality of laws or decrees exercised by domestic judges often automatically includes a conventionality
control, since the ACHR is incorporated with a constitutional rank. See, e.g., María Angélica Gelli,
“El Liderazgo Institucional de la Corte Suprema y las Perplejidades del Caso ‘Mazzeo,’ ” La Ley of 7
December 2007, Buenos Aires, 1.
14 See, e.g., ibid.
question of amnesty laws came up in the Inter-American System. In 1992, the

Inter-American Commission stated that the Argentine and Uruguayan amnesty
laws contradicted those States’ human rights obligations.15 The Inter-American
Court, asked by Argentina and Uruguay to render an advisory opinion on the
Commission’s competence to decide on the validity of domestic legislation,
upheld the Commission’s competence in this regard.16 Nevertheless, “the political
climate in the relevant countries remained hostile to the [inter-American human
rights] system’s views on amnesty laws,”17 and no immediate reaction at the na-
tional level gave effect to the Court’s findings. It was only with the Inter-American
Court’s landmark decision in the 2001 Barrios Altos case,18 and later with the 2006
La Cantuta v. Peru19 and Almonacid v. Chile20 decisions, that the issue of amnesty
legislation was brought back onto the regional human rights agenda.21 Since then
the question of amnesties has been at stake in numerous cases brought before the
Court.22
In its amnesty jurisprudence, the Inter-American Court addressed all three
dimensions of Transitional Justice: retributive, restorative, and distributive. It did
so first by establishing substantive standards. For example, in the Barrios Altos
case, the Inter-American Court found that impunity for human rights violations,
which were recognized as ius cogens under international human rights law be-
cause of their seriousness, was inadmissible and those responsible ought to be
punished.23 Accordingly, the Court established that the 1995 Peruvian amnesty
15 See IACHR, Cases 10.147, 10.181, 10.240, 10.262, 10.309, 10.311; IACHR, Report No. 28/92,
OEA/Ser.L/V/II.83, Doc. 14, corr.1 (1992–93) (Argentina); IACHR, Cases 10.029, 10.036, 10.145,
10.305, 10.372, 10.373, 10.374, 10.375, Report No. 29/92, (Uruguay). See James Cavallaro and
Stephanie Brewer, “Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The
Case of the Inter-American Court” [2008] 102 American Journal of International Law 768, 819 et seq.
16 IACtHR, “Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41,
42, 44, 46, 47, 50, and 51 of the American Convention on Human Rights),” Advisory Opinion OC-13/
93, July 16, 1993, Ser. A No. 13, paras. 30, 37, 57(1).
17 See Cavallaro and Brewer (n. 15), 820.
18 IACtHR, Barrios Altos v. Peru (n. 4).
19 IACtHR, La Cantuta v. Peru (n. 4).
20 IACtHR, Almonacid v. Chile (n. 4).
21 The Barrios Altos and La Cantuta cases against Peru concerned massacres in 1991 and 1992 that
were committed by the paramilitary death squad La Colina and ordered by then President Albero
Fujimori. Those responsible were shielded from prosecution by amnesty laws passed by the Fujimori
government in 1995: Laws No. 26479 and 26492 (n. 6). See also the following cases concerning self-
amnesties: IACtHR, Castillo-Páez v. Peru [1998] IACtHR Ser. C No. 43; Loayza Tamayo v. Peru [1998]
IACtHR, Ser. C No. 60.
22 See IACtHR, Barrios Altos v. Peru, IACtHR, La Cantuta v. Peru, IACtHR, Almonacid Arellano
v. Chile, IACtHR, Gelman v. Uruguay, IACtHR, Case of the massacre of El Mozote and nearby places
v. El Salvador, IACtHR, Gomes Lund et al. v. Brazil (n. 4).
23 IACtHR, Barrios Altos v. Peru (n. 4), para. 41: “This Court considers that all amnesty provisions,
provisions on prescription and the establishment of measures designed to eliminate responsibility

are inadmissible, because they are intended to prevent the investigation and punishment of those re-
sponsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary ex-
ecution and forced disappearance, all of them prohibited because they violate non-derogable rights
recognized by international human rights law.”
laws violated the rights of the survivors and victims’ families to be heard by
a judge and to judicial protection, as established in Article 8.1 and Article 25
ACHR, respectively. The Court stated further that these amnesty laws impeded
the investigation, capture, prosecution, and conviction of those responsible for
the human rights violations in the Barrios Altos massacre, in contravention of
Article 1.1 ACHR, and obstructed the clarification of the facts of the case. Finally,
the Inter-American Court held that the respective laws contributed to the de-
fenselessness of victims and the perpetuation of impunity and were thus “man-
ifestly incompatible with the aims and spirit of the [American] Convention.”24
The Inter-American Court established in relation to the 2001 Peruvian amnesty
laws that they lacked legal effects in internal Peruvian legislation.25 The survivors
and the next of kin of victims of massacres involving perpetrators who had not
been prosecuted due to the effect of the amnesty laws implemented between
1995 and 2001 were to be indemnified monetarily and given adequate psycho-
logical support, and investigations and prosecutions holding responsible those
who were accountable for the massacre had to proceed.
Similar findings were reached in Almonacid v. Chile, which concerned the
extrajudicial killing of a professor—and a supporter of the Communist Party—
in September 1973 by State police forces acting under the instructions of the
Pinochet regime. The Inter-American Court found that the killing constituted
a crime against humanity,26 which as a non-derogable right under the ACHR
could not remain unpunished.27 The Court reasoned similarly to the Barrios
Altos case: it established that the nonprosecution of those responsible in ap-
plication of the 1978 amnesty decree law (Decreto Ley)28 constituted a viola-
tion of Articles 8.1 and 25 together with Articles 1.1 and 2 of the ACHR.29 The
Court, as in Barrios Altos, stated that the respective decree law was devoid of
legal effects.30 What is more, the IACtHR ordered the indemnification and sat-
isfaction of the victims, including the prosecution of those responsible, and the
publication of the established facts in the Diario Oficial of Chile and in another
widely circulated newspaper, as well as other measures. Furthermore, the Court
found with effect erga omnes that the Chilean State was obliged to ensure that the
respective amnesty decree law hindered neither the continued investigations on
24 IACtHR, Barrios Altos v. Peru (n. 4), para. 43.

25 The IACtHR extensively listed Peruvian measures and jurisprudence to reach this conclusion.
26 See, e.g., IACtHR, Almonacid v. Chile (n. 4), para. 115.
27 Ibid., para. 111: “Los crímenes de lesa humanidad producen la violación de una serie de
derechos inderogables reconocidos en la Convención Americana, que no pueden quedar impunes.”

28 Chilean Amnesty Decree Law No. 2.191 (n. 5).
29 IACtHR, Almonacid v. Chile (n. 4) para. 2.
30 Ibid., para. 3. The fact that the amnesty laws had not been applied by Chilean courts in various
cases since 1998 was not considered sufficient to comply with the requirements of Article 2 ACHR, as
the implementing authorities could change their approach (ibid., para. 121).
the extrajudicial execution of the victim and similar situations nor the identifica-
tion and punishment of those responsible in that case and similar cases.31
In Gelman v. Uruguay,32 the Inter-American Court found Uruguay in viola-
tion of its obligations under the American Convention by letting crimes go un-
punished through the country’s amnesty law. While taking into consideration
the democratic approval of the Uruguayan law, the Court ultimately considered
this immaterial33 and found that the law was lacking legal effects.34 The Court
stated that the democratic legitimacy of a law had no effect on its general com-
patibility with human rights law. Even in cases like the one before it, the conven-
tionality control could not be spared and was therefore not only a task for judicial
authorities but for every public authority.35
In the above-mentioned cases, the Inter-American Court adopted a similar
approach to domestic amnesty laws36 that shield perpetrators of grave human
rights violations from prosecution. Interestingly, the Court was less concerned
about the method of adoption, that is, whether the respective law was an act of
self-amnesty or an amnesty passed by a subsequent regime or national parlia-
ment transitioning toward democracy.37 Rather, the Court based its decision on
the amnesty laws’ ratio legis: that they shield perpetrators of grave human rights
violations from prosecution. In so doing, the Court explicitly referred to the ius
cogens character (non-derogable nature) of the prohibition of torture and extra-
judicial killings.38 Consequently, the respective amnesty laws were found to vi-
olate the rights of survivors and the family members of victims to a fair trial and
judicial protection;39 the laws’ very existence, according to the Court, constituted
a violation of a State’s obligation under the ACHR.40 While not of immediate
relevance for the Court’s reasoning, the procedural legitimacy of the amnesty
law’s adoption, as will be shown, is important for the reception and effects of the
Court’s amnesty jurisprudence at the domestic level.41

32 IACtHR, Gelman v. Uruguay (n. 4).
33 Ibid., para. 229, 238; see also Sandholtz, (n. 9), 35 et seq.
34 IACtHR, Gelman v. Uruguay (n. 4) para. 232.
36 As mentioned, the criteria for the incompatibility of amnesty laws are most clearly established
in Almonacid v. Chile (n. 4), para. 120: it is the ratio legis—i.e., to shield perpetrators of grave human
rights violations from prosecution—rather than how the law was adopted—e.g., a self-amnesty—–
which is decisive.
37 Ibid., para. 120. The Inter-American Court seems to make a distinction as regards amnesty laws
that are adopted to end an armed conflict. See IACtHR, Massacre of El Mozote and nearby places v. El
Salvador (n. 4).
38 See, e.g., IACtHR, Barrios Altos v. Peru (n. 4), para. 41; Almonacid v. Chile (n. 4), para. 111.
39 ACHR, arts. 8.1 and 25.
40 ACHR, arts.1.1 and 2.
41 See section 4.2 infra.
With its jurisprudence, the Inter-American Court obliges States to give effect
to the different dimensions of Transitional Justice, which are important for dem-
ocratic transition processes of societies emerging from a violent past. Therefore,
the retributive dimension of Transitional Justice is accomplished via the required
criminal prosecution of perpetrators; the restorative dimension is accomplished by
defending the right of victims to the truth and to a fair process, as well as the nec-
essary psychological aid and help when instances of torture are involved; and the
distributive dimension is realized by awarding monetary compensation to victims.
The standards and human rights conditions set up by the Inter-American Court for
domestic democratic transition processes are thus stringent and comprise all three
dimensions of Transitional Justice.
What is more, the Inter-American Court has also developed especially two in-
novative types of norm control to facilitate the reception and increase the impact
of its judgments at the domestic level: first, the nullification of unconventional
amnesty laws and second, the conventionality control. As regards the former, the
Inter-American Court in its amnesty jurisprudence—for example, Barrios Altos,
La Cantuta, Gelman, and Almonacid—does not task domestic authorities with
amending or repealing deficient legislation. Rather, the Court itself determines
whether the respective amnesty laws are “without effect” ab initio as a result of
contravening the ACHR.42 The wording chosen by the Inter-American Court—
“lack legal effect,” carecen efectos jurídicos—demonstrates that the Court does not
consider an additional national legal act—for example, a repeal of the amnesty
law—necessary to give effect to its determination.43 This is explicitly confirmed
in the voto razonado of Judge García Ramírez in La Cantuta.44 When stating
that national laws “are without effect” when contravening the ACHR, the Inter-
American Court attributes supranational force to its determinations and acts
like a national constitutional court.45 This direct norm control exercised by the
42 This was stated most clearly in La Cantuta v. Peru (n. 4), para. 187: “[D]‌ichas leyes no han
podido generar efectos no los tienen en el presente ni podrán generarlos en el future.”

43 While the Court’s findings in La Cantuta indicate that the Inter-American Court’s statement is
declaratory and not constitutive, such an establishment would have been up to the competent institu-
tion at the domestic level (e.g., the constitutional court).
44 See voto razonado by Judge Sergio García Ramírez, IACtHR, La Cantuta v. Peru (n. 4), paras.
4 and 5: “En suma, la ineficacia de esos mandamientos resulta inmediatamente—y sin necesidad de
actos especiales que lo dispongan y que, en todo caso, se limitarían a declararlo—de su colisión con la
Convención Americana.”
45 See Néstor Sagüés, “El ‘Control de Convencionalidad’ en particular sobre las Constitucionales
Nacionales,” La Ley, February 19, 2009, Buenos Aires, 3: “[E]‌n ciertos veredictos . . . la Corte
Interamericana habría incluso nulificado normas nacionales, como leyes de amnistía, con efectos
erga onmnes, comportándose así como un verdadero Tribunal Constitucional nacional.” Note that,
especially when establishing the nullity of amnesty laws and decrees, the Court refers explicitly to the
particularly serious character of human rights violations the amnesty laws are providing impunity
for: the respective human rights guarantees being recognized as non-derogable (ius cogens) in inter-
national human rights law. The IACtHR thus seems to introduce a certain hierarchy of norms. This
is evidenced by the fact that with respect to other laws that violated the ACHR but did not provide
Inter-American Court maximizes the impact of its findings, since no additional

national act is necessary to give effect to the Inter-American Court’s judgments.
Likewise, the conventionality control (control de convencionalidad) increases
the effects of the Inter-American Court’s jurisprudence. Indeed, in Almonacid
v. Chile, the Inter-American Court established for the first time that national
courts were obliged not to apply national norms that were in violation of the
ACHR and, what is more, of the ACHR in the interpretation given by the Inter-
American Court (control de convencionalidad).46 According to the IACtHR:
124. The Court is aware that domestic judges and courts are bound to respect
the rule of law, and therefore, they are bound to apply the provisions in force
within the legal system. But when a State has ratified an international treaty
such as the American Convention, its judges, as part of the State, are also bound
by such Convention. This forces them to see that all the effects of the provisions
embodied in the Convention are not adversely affected by the enforcement of
laws which are contrary to its purpose and that have not had any legal effects
since their inception. In other words, the Judiciary must exercise a sort of
“conventionality control” between the domestic legal provisions which are
applied to specific cases and the American Convention on Human Rights. To
perform this task, the Judiciary has to take into account not only the treaty, but
also the interpretation thereof made by the Inter-American Court, which is the
ultimate interpreter of the American Convention.47
Such decentralized conventionality control tasks national courts not to

apply (provisions of) laws that are in contravention of the ACHR.48 This obli-
gation applies to all States parties to the ACHR and without the necessity of a
prior judgment by the Inter-American Court against the respective State. The
for amnesty in cases of serious human rights violations, the IACtHR tasked national authorities to
modify/amend the respective laws. See Fermín Ramires v. Guatemala [2005] IACtHR, Ser. C No.
126: the Court established that a provision of the Guatemalan penal legislation that contravened the
ACHR should be amended in a reasonable time and not be applied as long as it was not amended.
Likewise in La Última Tentación de Cristo (Case of Olmedo Bustos y otros (La última Tentacion de
Cristo) v. Chile [2001] IACtHR, Ser. C No. 73, para. 4: the Court asked Chile to amend a provision
of its constitution as the preliminary censorship established there violated Article 13 (freedom of
thought and expression) of the ACHR; the Court did not declare the latter norms “without effect” it-
self, and it seems that only in reliance on non-derogable rights, in cases concerning ius cogens norms
violations, the Court resorts to the drastic sanction to nullify a law.
46 Sagüés (n. 45); see also Juan Carlos Hitters, “Control de Constitucionalidad y Control de
Convencionalidad. Comparación (Criterios fijados por la Corte Interamericana de Derechos

Humanos)” [2009] 7 Estudios Constitucionales, <https://www.scielo.cl/scielo.php?pid=S0718-
52002009000200005&script=sci_arttext> (accessed February 5, 2022).
47 IACtHR, Almonacid v. Chile (n. 4), para. 124.
48 In the interpretation of the IACtHR.
Inter-American Court bases the duty to exercise the conventionality control,

inter alia, on Article 27 of the Vienna Convention on the Law of Treaties (VCLT),
which holds that a State cannot justify noncompliance with a treaty with refer-
ence to internal law.49 Put differently, the Inter-American Court asks domestic
courts to exercise a conventionality control comparable to the constitutionality
control in constitutional law. The standard of review is not only the ACHR but
also “the interpretation thereof made by the Inter-American Court, which is the
ultimate interpreter of the American Convention.”50 The Inter-American Court
thus tasks national judges to exercise their review with reference to its own case
law. According to the Inter-American Court, national judges have to engage
in such controls not only when requested by a party to the case but also “ex of-
ficio,”51 and abstain from applying it to the concrete case when an internal norm
or law contravenes the ACHR.52 In situations where the national legislator has
failed to amend the deficient law,53 it is domestic courts and judges that have to
give effect to the human rights guarantees in the ACHR. After being applied first
in the 2006 Almonacid case, the doctrine was consolidated in subsequent juris-
prudence, including Trabajadores Cesados del Congreso (Aguado Alfaro y otros)
v. Peru,54 and more recently in Heliodoro Portugal v. Panama.55
In sum, both forms of norm control—the nullification of national laws and the
conventionality control—enable an effective implementation of a State’s human
rights obligations and give maximum effect to the ACHR. The Inter-American
Court’s supranational determination that national laws, or decrees, are “without
effect” bypasses the need for an additional national legal act.56 The convention-
ality control especially has far reaching consequences for the inter-American
human rights protection system, as it makes national judges guardians of the
human rights guarantees enshrined in the ACHR57 and thus provides for the
latter’s effective implementation at a decentralized level. The conventionality
49 IACtHR, Almonacid v. Chile (n. 4), para. 125.

51 See also Trabajadores Cesados del Congreso (Aguado Alfaro y otros) v. Peru [2006] IACtHR, Ser.
C No. 158, para. 128.
52 IACtHR, Almonacid v. Chile (n. 4), paras. 123–125: the effect of such control by national judges
is inter partes, see Sagüés (n. 45), 2. The IACtHR has not pronounced itself on what happens when the
respective national tribunal is competent to invalidate norms erga omnes. Still, according to Sagüés, it
might do so.
53 See, in this sense, IACtHR, Almonacid v. Chile (n. 4), para. 123.
54 IACtHR, Trabajadores Cesados del Congreso (n. 51), para. 128.
55 Heliodoro Portugal v. Panamá [2008] IACtHR, Ser. C No. 186, paras. 180–181. See also IACtHR,
La Cantuta v. Peru (n. 4), para. 173; Boyce y otros v. Barbados [2007] IACtHR, Ser. C No. 169, para. 78.
56 This facilitates the work of national institutions, especially when the nullification of amnesty
laws may be met with domestic resistance (see infra section 4.2).
57 The IACtHR seems to leave open whether such control might be exercised with respect to other
human rights treaties; see IACtHR, Almonacid v. Chile (n. 4), para. 124: “[A]‌n international treaty,
such as the American Convention.”
control in particular, if properly implemented, would counterbalance the limited

number of cases brought before the IACtHR, as domestic judges are required
to ensure the effectiveness of the guarantees contained in the ACHR at the na-
tional level. Such effectiveness seems crucial in the field of amnesties and, more
broadly, in the Latin American context of democratic transitions and serious
human rights violations. The “toolbox” of the IACtHR, therefore, is highly devel-
oped. What remains to be seen is the domestic reception and the impact of the
Inter-American Human Rights System “on the ground.”
4.2. Domestic Reception of the IACtHR’s

Amnesty Jurisprudence
To truly measure the IACtHR’s impact on democratic transitions, a domestic-

oriented analysis seems warranted. As will be shown, the reception of the Court’s
jurisprudence at the national level was generally positive, with the judiciary (do-
mestic tribunals and judges) turning out to be the IACtHR’s best allies. It did not
make a difference whether States were parties to a specific case or not, which
illustrates the acceptance of the Court’s doctrine of conventionality control.
What somehow mattered, conversely, was the method with which the respec-
tive amnesty law was adopted, namely, its procedural legitimacy—self-amnesty
versus an amnesty passed by parliamentary approval—and the degree of soci-
etal consensus on which the amnesty was based. Peru, Chile, Argentina, and
Uruguay will be discussed by way of example.
Peru fully complied with the Inter-American Court’s Barrios Altos deci-
sion, which concerned an act of self-amnesty passed by Alberto Fujimori. As
the Peruvian national legal system does not provide for a “nullification of laws,”
this was done on the basis of the incorporation of the ACHR into the domestic
legal system58 and national legal provisions, making it possible to give effect
to international decisions.59 According to the Peruvian Constitutional Court
(Tribunal Constitucional),60 the Inter-American Court’s interpretative authority
58 Arts. 55–57 of the Peruvian Constitution. While the 1993 Peruvian Constitution does not pro-
vide for an incorporation of international (human rights) treaties at a certain rank in its legal hier-
archy, Article 55 provides that international treaties are “part of national law”; its final provisions
establish that constitutional rights and freedoms have to be interpreted in accordance with treaties on
human rights ratified by Peru.
59 See, e.g., La Ley No 27.775, “Regula el procedimiento de ejecución de Sentencias emitidas por
Tribunales Supranacionales”; art. 115 Código Procesal Constitucional.

60 The Peruvian Constitutional Court acts as the final interpreter of the constitution and may
derogate, with erga omnes effects, unconstitutional legislation. In addition, normal judges may de-
cide not to apply or enforce unconstitutional laws with effects inter partes (system of judicial diffuse
norm control in combination with a concentrated control in a specialized extra court; see arts. 138,
201, 202, and 204 of the Peruvian Constitution). See also Sagüés, “Regional Report Latin America”
in accordance with Article 62.3 ACHR made the Court’s interpretations binding
upon all national authorities, including Peru’s Constitutional Court. More par-
ticularly, the Peruvian Constitutional Court found that not only the resolutive
part of the judgments but also the Inter-American Court’s reasoning had binding
force.61 The Peruvian Constitutional Court accordingly followed the IACtHR’s
determination that the 1995 amnesty laws were devoid of legal effect.62 In short,
the Inter-American Court’s position on the nullity of amnesty laws contravening
the ACHR was given effect in Peru.63
The implementation of Almonacid in Chile was more indirect. At first, no direct
effect was attributed to the Inter-American Court’s judgments.64 Furthermore, a
bill promoted by the Chilean government to amend the Chilean criminal code
so that serious human rights violations were not subject to amnesties or stat-
utes of limitation, such as foreseen in the 1978 amnesty decree law, had not been
passed as of April 2019.65 Still, the 1978 amnesty decree law is not applied in
practice as the Chilean Supreme Court has ruled consistently that the amnesty
decreed by the military government was inapplicable to war crimes or crimes
against humanity, and that these crimes were not subject to the statute of limi-
tations.66 The Chilean Supreme Court referred inter alia to the Inter-American
Court’s Almonacid decision—as well as to Barrios Altos—when establishing
that domestic legal norms could not be used as obstacles for the prosecution
of perpetrators of gross human rights violations.67 Thus, national authorities
complied with the Inter-American Court’s findings, although on a case-by-case
basis. Given that legislation to repeal the controversial 1978 amnesty decree law
[2009] VII. Konrad Adenauer Stiftung Conference on International Law: The Contribution of
Constitutional Courts in Safeguarding Basic Rights, Democracy and Development, 10.
61 This even in cases where Peru was not a party to the dispute.
62 See Peruvian Constitutional Court, Caso Santiago Martín Rivas, November 29, 2005, Expediente
No. 4587–2004, AA/TC, para. 63.
63 See, e.g., the findings of the IACtHR in La Cantuta v. Peru, where the Court establishes that Peru
had fully implemented the Barrios Altos Judgment: IACtHR, La Cantuta v. Peru (n. 4), para. 186.
64 The 2005 reforms of the Chilean Constitution introduced a system of centralized norm con-
trol located at the Constitutional Court with a monopoly to control the constitutionality of legis-
lation with erga omnes effects (art. 82 of the Chilean Constitution). Still, the Chilean Supreme
Court is tasked to exercise the system of diffuse norm control until the end of its term of office
(Cuadragesimacuarta, Chilean Constitution). Article 5 of the Chilean Constitution establishes the
obligation to respect the fundamental rights of persons recognized in the Constitution and relevant
international human rights treaties. Thus, international human rights treaties arguably have a consti-
tutional rank.
65 See the Office of the High Commissioner on Human Rights, “Committee on Enforced
Disappearances Examines Report of Chile,” Geneva April 10, 2019, <https://www.ohchr.org/en/New

sEvents/Pages/Display News.aspx?NewsID=24469&LangID=E> (accessed February 5, 2022).
66 See Ibid.
67 Supreme Court of Chile, Criminal Chamber, Molco Case (No. 559–2004) of December 13, 2006,
paras. 19–20. See also the IACtHR’s findings in Almonacid v. Chile (n. 4), para. 121.
had not been passed, Chilean courts only chose in practice not to apply the 1978
amnesty decree law.
The case of Argentina demonstrates that, in States that are not party to a
case, the reception of the Inter-American Court’s judgments is generally good
and the Court’s impact on transitions to democracy are considerable, from a
Transitional Justice perspective. The Inter-American Court’s doctrine of control
de convencionalidad was explicitly accepted by the Argentine Supreme Court.68
For example, the Argentine Supreme Court relied extensively on the Barrios Altos
decision of the Inter-American Court when stating that Argentina’s amnesty
laws (Punto Final and Obediencia Debida) were unconstitutional. The Argentine
Supreme Court drew on the Inter- American Court’s reasoning especially
when finding that the Argentine amnesty laws had the same deficiencies as the
Peruvian ones: being “self-amnesties,” ad hoc, and intended to prevent the pros-
ecution of grave human rights violations.69 The impact of the Inter-American
Court’s jurisprudence thus seems considerable: domestic amnesty legislation is
not applied to specific cases or declared unconstitutional among others in reli-
ance on the criteria established in the judgments of the Inter-American Court.
In sum, the Inter-American Court’s amnesty jurisprudence was met with ac-
ceptance in Peru, Chile, and in Argentina. In all three countries, the Court’s case
law seems to have supported transitions by alleviating domestic institutions. In
Peru and Chile the nullification of amnesty laws through the Inter-American
Court “facilitated” the work of Chilean and Peruvian domestic authorities in-
sofar as it dispensed with the need for an additional national act. In Argentina,
the Inter-American Court’s amnesty jurisprudence provided standards and
increased the legitimacy of the findings of Argentine tribunals by requiring
them to engage in the control de convencionalidad. This support for democratic
transitions seems especially important in cases where it is difficult—due to in-
ternal resistance—to formally amend or repeal the respective amnesty laws at
the domestic level. It also points to the crucial role of domestic judges where the
implementation of human rights obligations and transitions to democracy are
concerned. Therewith, the domestic rule of law is strengthened through the case
law of the IACtHR.
68 See the Argentine Supreme Court cases Mazzeo Julio Lilo y otros (n. 7), para. 21; and Recurso de
hecho deducido por la defensa de Julio Héctor Simón en la causa Simon, Julio Hector y otros s/privación
ilegitima de la libertad, etc., June 14, 2005, the Argentine Supreme Court relied extensively on the
Barrios Altos decision of the IACtHR when stating that Argentina’s amnesty laws (Punto Final and
Obediencia Debida) were unconstitutional. See the questioning of constitutionality control in Acosta
by the Argentine Prosecutor General, Walter Carnota, “The Inter-American Court of Human Rights
and ‘Conventionality Control’ ” [2015] unpublished paper, 25 et seq. See also the Argentine Supreme
Court in Rodríguez Pereyra v. Ejército Nacional, November 27, 2012.
69 Argentine Supreme Court, Rodríguez Pereyra v. Ejército Nacional (n. 68), para. 24; see also
Mazzeo Julio Lilo y otros (n. 7).

Tellingly, the reception of the Inter-American Court’s case law at the domestic
level is particularly good in cases where the amnesty laws at stake lack proce-
dural legitimacy: when they are self-amnesties or were adopted under the pres-
sure of the former regime, as was the case in Peru, Chile, and Argentina. The
Court’s jurisprudence is especially welcome in these instances. Conversely, the
reception of the Inter-American Court’s amnesty jurisprudence is more critical
in countries where the amnesty is combined with a broad societal consensus,
as was the case in Uruguay. Indeed, the reception of the Gelman case at the do-
mestic level was controversial: the Uruguayan vote on a law doing away with the
Expiry Law in October 2011 resulted in a 49–49 deadlock. Until 2019, Uruguay
had not fully complied with the Inter-American Court’s judgment in the Gelman
case. There seemed to be a lack of effective prosecution from judicial bodies, a
general unwillingness to recognize crimes as crimes against humanity, and a cer-
tain opposition to the conventionality control.70 This indicates how influential
the method with which an amnesty law is adopted at the domestic level can be
in determining the reception of the Inter-American Court’s case law. The Inter-
American Court’s authority is questioned to a further reaching extent in relation
to amnesties that were adopted by parliament or backed by a broad societal con-
sensus, as in Uruguay, and thus in a process with increased domestic procedural
legitimacy.71 Conversely, it proved to be of minor relevance whether a particular
State was party to a case: Peru, Chile, and Argentina complied equally well with
the Court’s judgments even though not all were party to a case and followed the
interpretative guidance provided by the Inter-American Court.
To deal with past human rights violations is a challenge for any society moving
from a violent past to a hopefully more peaceful future. The success of these
transitions will largely depend on a society’s ability to address this past. This
has proved true for many Latin American States. As was shown throughout this
chapter, the Inter-American Court has accompanied domestic democratic tran-
sition processes remarkably well through its “amnesty jurisprudence,” overruling
the impunity extended to perpetrators of violations. The Court’s transformative
impact is thus considerable, as illustrated in Peru, Chile, and Argentina.
70 Center for Justice and International Law, “Uruguay reconoció ante la Corte Interamericana
de Derechos Humanos el incumplimiento de la sentencia del caso Gelman,” September 19, 2019,
<https://www.cejil.org/es/uruguay-reconocio-corte-interamericana-derechos-humanos-incumpl
imiento-sentencia-del-caso-gelman> (accessed February 5, 2022).
71 Another challenge may arise in relation to amnesties that are part of a peace process (as in
Colombia).
Different dimensions, however, can be distinguished. First, the Inter-

American Court has set up clear substantive standards, which guide democratic
transitions at the domestic level and set limits on State action from a human
rights perspective—especially in terms of the rights of victims. These standards
cover the three dimensions of Transitional Justice—retributive, restorative,
and distributive. Domestic transitions to democracy, therefore, are facilitated
along these lines. Second, innovative techniques of norm control make the im-
plementation of the respective human rights standards easier at the domestic
level. The nullification of amnesty laws without the need for an additional do-
mestic act helps to overcome national obstacles in implementation—for ex-
ample, internal resistance—and contributes to giving maximum effect to the
respective standards. The conventionality control disperses the impact of the
Inter-American Court’s jurisprudence throughout the Americas. Thus, the inter
partes effect of judgments—which, in view of the limited number of IACtHR
judgments, could be an impediment to transformative impact—is overcome.
Overall, the Inter-American Court’s case law on amnesties has been well
received in Latin American States, as shown in Peru, Chile, and Argentina.
Domestic tribunals especially have given effect to the Inter-American Court’s
jurisprudence and made themselves allies of the Court. Indeed, the references
to the Court’s jurisprudence seem to support domestic tribunals in their fight
against impunity and inadmissible amnesties at the domestic level, as it gives
their decisions moral, political, and legal authority. Domestic tribunals are re-
lieved from carrying the burden of dealing with past human rights violations
alone. The Inter-American Court thus supports domestic judiciaries vis-à-vis
the executive and possibly the legislative branch, strengthens the separation of
powers, and furthers domestic checks and balances. Notably, the Inter-American
Court’s amnesty jurisprudence is best received in relation to amnesty laws that
were passed by the former executive branch responsible for or involved in human
rights violations, and therefore lack internal domestic legitimacy.
In sum, the transformative impact of the Inter-American Human Rights
System appears most lasting through its strengthening of domestic tribunals.
This is not only of relevance for the question of how to deal with past human
rights violations. A strong and independent domestic judiciary is also a firm
promise for a peaceful and democratic society in the future, which is perhaps the
most important and most durable impact of the ICCAL in Latin America.
II.12
Impact of the Inter-American
Human Rights System in the Struggle
against Impunity
By Oscar Parra Vera
1. Introduction
In 1994, Juan Méndez1 indicated that the Inter-American System involved

“a promise that the community of nations of the Hemisphere made to its
victims: that if the State institutions did not respond to the violations of human
rights, the international authorities would be there to listen to their grievances
and to re-establish the observance of law.” An analysis of the jurisprudential ev-
olution of the Inter-American Court of Human Rights in the form of “due dili-
gence” in combating impunity helps illustrate the transformational impact the
Inter-American System has triggered in making possible said promise.
For example, the first stage of this process2 corresponds to the 1970s and 80s,
when the System played a significant role in denouncing and documenting the
systematic, large-scale violations of human rights, especially in the context of
military dictatorships and abuse of states of emergency. The system of individual
petitions was then at a very early stage. The emphasis was placed on in loco visits
by the Inter-American Commission and on the corresponding country reports.
Significant examples of the latter are the Commission’s visits and reports con-
cerning Chile (1974, 1976, and 1977) and Argentina (1980). These reports and
visits dealt with military dictatorships in which there was no domestic institu-
tion for confronting State repression. Therefore, the international community
provided the only answer. One difficulty the Inter-American Court faced in this
1 Juan E. Méndez, “Prólogo,” en ILSA. Sistema Interamericano para la Protección de los Derechos
Humanos: Aportes para una evaluación (ILSA 1994), 9.

2 I elaborate on this historical description of the regional system as of, inter alia, in Víctor
Abramovich, “De las violaciones masivas a los patrones estructurales. Nuevos enfoques y clásicas
tensiones en el sistema interamericano de derechos humanos” [2010] 11 Sur, Revista Internacional
de Derechos Humanos 7–39 and Cecilia Medina Quiroga, “Los 40 años de la Convención Americana
sobre Derechos Humanos a la luz de cierta jurisprudencia de la Corte Interamericana” [2009]
Anuario de Derechos Humanos 15–34.
Oscar Parra Vera, Impact of the Inter-American Human Rights System in the Struggle against Impunity In: The
Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo
Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Oscar Parra Vera 2024.
DOI: 10.1093/oso/9780197744161.003.0023
The Struggle against Impunity 425
phase was the fact that the system of individual petitions had not yet crystallized
for dealing with systematic, large-scale violations. In other words, the System
presupposed States governed by the rule of law whereby domestic remedies were
exhausted before subsequently tackling the situation of regional protection. In
its first contentious cases, the Court established standards of procedure and evi-
dence to allow it to confront such obstacles.
A second aspect of this process is connected to the so-called “transitions to
democracy” and the problems associated with impunity caused by past abuse.
Reports and disputes surfaced of cases relating to restrictions on amnesties and
on the rights to truth, justice, and reparation. At the same time, emphasis was
placed on removing the loopholes of repressive systems such as the abuse of states
of emergency, the restrictions on habeas corpus, and the arbitrary use of military
criminal justice. During this period, institutional forms emerged in some coun-
tries (constitutional courts, ombudsman offices, supervisory bodies, etc.) to re-
port current and past arbitrariness. However, the real power the oppressors still
managed to maintain, along with other forces and factors, weakened the activity
of these bodies and nullified their impact. The international community was be-
ginning to support the efforts being made in domestic law, and assumed a more
active role—via inter-American litigation of strategic cases—in such cases where
progress is much too limited.
Taking into account the previous framework, in the present chapter, I ana-
lyze several paradigmatic issues concerning the evolution of jurisprudence in
accessing justice in the context of the battle against impunity. I shall begin by
highlighting some details and supplements made in the standards of due dil-
igence, aimed at greater accountability of the efforts that States bring forward
in this matter. In this respect, whereas twenty years ago, the main battle was to
document an international consensus on the impossibility of pardoning serious
violations of human rights, in the last few years, the Inter-American Court has
had to analyze more complex institutional circumstances which have generated
case law in aspects such as inter-State judicial cooperation, prevalent criminal
offenses, the “criminality of the system,” and due diligence in investigating vio-
lence toward women as a form of discrimination.
I shall continue by analyzing some of these circumstances and examples in
order to later consider their impact. There are, of course, other interesting issues
and cases I have not included in this selection. Nonetheless, the focus on these
cases aims to best explain the advances and challenges the inter-American case
law faces in its battle against impunity.3
3 I do not include in these examples the significant progress in due diligence concerning the inves-
tigation of abuse of women and gender-based violence, aspects which are analyzed in other chapters
of this book. Because this book also includes a chapter on transitional justice, I make very little men-
tion of this topic.
426 Oscar Parra Vera
2. Some Details on the Scope of the Need to Investigate

Serious Violations of Human Rights
In 1988, in its first contentious case concerning forced disappearance, the Inter-
American Court indicated that the duty to guarantee the rights recognized by the
Convention involves the duty of preventing, investigating, and sanctioning all
violation of human rights.4 Subsequently, in 2001, in the judgment on the mas-
sacre of Barrios Altos v. Peru,5 the Court established that the self-amnesty laws
were incompatible with the American Convention along the following lines:
[ . . . ] all amnesty provisions, provisions on prescription and the establishment

of measures designed to eliminate responsibility are inadmissible, because they
are intended to prevent the investigation and punishment of those responsible
for serious human rights violations such as torture, summary, extrajudicial or
arbitrary executions and forced disappearance, all of them prohibited because
they violate non-derogable rights recognised by international human rights law.
Another chapter of the present book6 analyzes in detail the impact of the
Barrios Altos case regarding various amnesties adopted in the Americas. Thus, in
this segment, I merely concentrate on describing how in recent years the Court
has issued various rulings which complement and clarify the criteria indicated in
the Velásquez and Barrios Altos cases.
2.1. Fraudulent Res Judicata and Admissible Weightings

Surrounding the Principle of Ne Bis In Idem
First of all, the Court developed the concept of fraudulent res judicata. In the case
of Carpio Nicolle et al. v. Guatemala,7 in association with extrajudicial executions
and attacks on personal integrity, the Court considered that “the courts of law
[acted] without independence and impartiality, applying legal standards and
provisions contrary to due diligence, and omitting the implementation of cor-
responding ones.” Additionally, the Court established that there had been “con-
tinual obstruction of the investigations by State agents and the so-called ‘parallel
groups’ in power, and also a lack of diligence in conducting the investigations,
all of which [established] total impunity,” it had missed the “guarantees needed
4 Case of Velásquez Rodríguez v. Honduras [1988], IACtHR, Ser. C No. 4.

5 Case of Barrios Altos v. Peru. Merits [2001], IACtHR, Ser. C No. 75.
6 See Christina Binder in Chapter II.11 of this anthology.
7 Case of Carpio Nicolle et al. v. Guatemala [2004], IACtHR, Ser. C No. 117, paras. 76.23, 76.34,
and 133.
to start investigating and evaluate all evidentiary material,” and claimed that the
“prevailing general situation of the legal system [ . . . ] [indicated] its inability to
maintain its independence and impartiality in the face of pressure which [may
have been] exercised on its members.” The Court alluded to the “fraudulent res
judicata,” and considered that “it [had been] established that systematic ob-
struction of the administration of justice and of due diligence [had] prevented
the identification, judgement and punishment of the material and intellectual
perpetrators” the victims were subjected to.
The Carpio case tends to equate fraudulence with a seriously irregular global
situation in the developed overall legal proceedings. Subsequently, the notion
of fraudulence was applied in a manner closely associated with the intervention
of military jurisdiction. In fact, in the case of Gutiérrez Soler v. Colombia, which
relates to acts of torture, the Court stated that the case had been brought forward
to the military criminal justice authorities “where it was decided to stop all pro-
ceedings,” thus disqualifying, for no apparent reason, the victim’s legal claim. At
the same time, a disciplinary investigation was filed by applying the non bis in
idem principle. The Court determined that a “fraudulent res judicata” was evi-
dent because the national proceedings were “contaminated by [v]‌ices” connected
with a lack of respect for the rules of due diligence, and, because of this, “the
State, exonerating itself from its investigation and punishment obligations, shall
not invoke judgements emanating from proceedings which do not comply with
the standards of the American Convention, since legal decisions which originate
in internationally wrongful circumstances are not res judicata.”8 This phrasing
in the Gutierrez case is somewhat complex for an understanding of the scope of
“fraudulent res judicata” when associated with all abuse of the Convention.
Nevertheless, the subsequent application of the standard is associated with
situations in which impunity is clearly promoted. In the Almonacid case,9 the
Court indicated that the ne bis in idem was not an absolute right and was there-
fore inapplicable when: (i) the action of the court presiding over the case was
aimed at waiving or suspending responsibility for an abuse of human rights or
international law or at shielding the person concerned from criminal respon-
sibility; (ii) the proceedings were not conducted independently or impartially
in conformity with the due procedural guarantees, or (iii) there was no proper
intention of bringing the perpetrators to justice. When presented with these
situations, the Court indicated that either an “apparent” or “fraudulent” res judi-
cata arises, as well as what was stated in the aforementioned Carpio Nicolle case.
In addition, the Court indicated:
8 Case of Gutiérrez Soler v. Colombia [2005], IACtHR, Ser. C No. 132.

9 Case of Almonacid Arellano et al. v. Chile [2006], IACtHR, Ser. C No. 154.
If new facts or evidence [appeared] that make it possible to ascertain the identity
of those responsible for human rights violations, particularly for crimes against
humanity, investigations can be reopened, even if the case ended in an acquittal
with the authority of a final judgement, since the dictates of justice, the rights
of the victims, and the spirit and the wording of the American Convention
supersedes the protection of the ne bis in idem principle.10
2.2. Cooperative Interstate Obligations Regarding

Investigation and Extradition
Furthermore, the Court specified obligations derived from international law in

terms of inter-State cooperation in investigating and possibly extraditing alleged
perpetrators in cases of serious violation of human rights. Thereon, in the Case
of Goiburú et al v. Paraguay,11 the Court issued a ruling on the forced disappear-
ance of several persons within the context of the so-called Operation Condor.
The Court reasoned that thousands of citizens of the Southern Cone had tried to
escape repression in their countries of origin during the 1970s and 80s, seeking
refuge in neighboring countries. As a result, the dictatorships developed a
strategy called “Operation Condor” (a key name given to the alliance uniting the
security forces and intelligence services of the Southern Cone dictatorships in
combating and subjugating persons designated as “subversive elements”).
In the face of the prosecution of the perpetrators of Operation Condor, the
Court considered that Paraguay had “a compulsory obligation to have requested
the extradition of the accused, promptly and with due diligence”12 as well as “the
necessary measures, of a diplomatic and judicial nature, to prosecute and punish
all those responsible for the violations committed, which includes furthering the
corresponding extradition requests by all possible means.”13 The Court found
that “the inexistence of extradition treaties does not constitute a motive or jus-
tification for failing to institute a request of this type”14 and that “the need to
eradicate impunity establishes an obligation for the international community
to ensure interstate cooperation to this end.”15 With that in mind, the Court
alluded to a “collective guarantee” within the system, whereby the States had an

11 Case of Goiburú et al. v. Paraguay [2006], IACtHR, Ser. C No. 153.
13 Ibid.
14 Ibid.
obligation to exercise “their jurisdiction to apply their domestic law and inter-
national law to prosecute and, if applicable, punish those responsible”16 or by
collaborating “with other States which do so or attempt to do so.”17 Hence, extra-
dition is an important instrument to this end.
The foregoing was reiterated and deepened in the Case of La Cantuta
v. Peru.18 The events, which occurred in 1992, are connected with the disap-
pearance of eight persons (one professor and seven university students) and
the execution of two students. The soldiers responsible for these actions were
pardoned under an amnesty law until the legal decisions applied in the said
law were annulled. The Court stated that “since it was a matter of systematic
violation of human rights, it presented, before the international community,
the need to eradicate impunity as an obligation of interstate cooperation,”
to the extent that a State exercises its jurisdiction or collaborates with other
States to prompt investigation of the events. These standards of inter-State
cooperation had the important effect of creating building blocks permitting
the extradition to Peru of Alberto Fujimori, ex-president of that country, on
whom the Peruvian judiciary placed criminal responsibility for the massacre
of Barrios Altos and the disappearances in La Cantuta. The rulings adopted
by the Inter-American Court substantiated, to a large extent, the ruling of the
Supreme Court of Chile in permitting the extradition of the latter ex-politician.
Subsequently, the Special Chamber, specially created by the Supreme Court of
Justice of Peru for the trial of Fujimori, found that even though the proven
facts, the penal-judicial relevance of the latter, the interpretation and imple-
mentation of the pertinent penal standards and the individualization of the
penalty were exclusive domestic court powers,19 one could not disconnect this
from the interpretation and application of international law performed by the
Inter-American Court.
Another projection of these inter-State cooperation obligations can be found
in a significant order on the monitoring compliance issued in 2009 in the Case
of the Mapiripán Massacre v. Colombia, whose judgment on merits was issued
in 2005.20 This case refers to a massacre committed by Colombian paramilitary
groups, which occurred in 1997.
16 Ibid.
17 Ibid.
18 Case of La Cantuta v. Peru [2006], IACtHR, Ser. C No. 162.
19 Special Chamber of the Supreme Court of Justice of Peru, Judgment of April 7, 2009. For this and
other types of impact on the jurisprudence of the Inter-American Court in Peru, see Clara Sandoval,
“The Challenge of Impunity in Peru: The Significance of the InterAmerican Court of Human Rights”
[2008] 1(5) Essex Human Rights Review 97–118.
20 Case of the “Mapiripán Massacre” v. Colombia [2005], IACtHR, Ser. C No. 134.
The Inter-American Court demanded a detailed investigation of the events.

Years later, one of the commanders of the paramilitary group that committed
the atrocities was extradited to the United States to face drug-trafficking charges.
It was alleged, however, that the extradition was a response to the government’s
intention to prevent the person from telling the truth about what had occurred,
particularly the extent to which State authorities were involved in the said events.
The Inter-American Court then issued an order in which it stated that “the im-
plementation of entities such as extradition shall not serve as a mechanism to
favour, seek or secure impunity.”21
Bearing in mind that extradition had occurred on drug-trafficking charges,
the Court pointed out that “the prevailing consideration must be that of imputa-
tion of serious violations of human rights.”22 Furthermore, it demanded that the
State of Colombia “clarify the mechanisms, instruments and legal entities applied
to ensure that the extradited person collaborates in the investigation of the acts
[and] to ensure that he is duly tried.”23 The Court took into account the obstacles
that the said extradition might present for truth, justice, and reparations of the
serious violations of human rights attributable to State paramilitarism. The Court
mentioned the “lack of agreement in legal cooperation”24 between Colombia
and the United States in “ensuring that the proceedings taking place outside of
Colombia do not interfere with or jeopardise the investigations into the serious
violations which occurred.”25 This order was later used by the Criminal Chamber
of the Supreme Court of Justice of Colombia as one of the grounds for refusing
the extradition of a paramilitary leader until the latter had done his duty con-
cerning truth, justice, and reparations in accordance with a “Justice and Peace”
law adopted in the said country.26
The IACtHR reiterated this criterium in the case of Manuel Cepeda Vargas
v. Colombia,27 regarding the extrajudicial execution of a left-wing party
leader, within the context of a pattern of assassinations of leaders of the said
party. In this case, one of the perpetrators had been extradited to the United
States. The Court reiterated that the entity of extradition must not pose an
obstacle to due diligence in the investigations nor be used as a mechanism to
secure impunity.
21 Case of the “Mapiripán Massacre” v. Colombia [2009], para. 41.

22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 Supreme Court of Justice of Colombia, Criminal Appeals Chamber, Judgment of August
19, 2009.
27 Case of Manuel Cepeda Vargas v. Colombia [2010], IACtHR, Ser. C No. 213.
2.3. Qualification of Conduct as a Crime

against Humanity to Determine the Scope of the Obligation
to Investigate: Debates
The Inter-American Court is not a criminal court. Nevertheless, in some cases it

has been considered pertinent to consider certain acts as crimes pursuant to in-
ternational criminal law with the aim of determining the scope of international
responsibility or to specify the scope of due diligence in the investigation of the
acts. In the aforementioned case of Almonacid v. Chile,28 the amnesty law dealing
with crimes by the military dictatorship suffered in said country was analyzed.
The Court reviewed the elements that constitute a crime against humanity and
assessed what had occurred based on the said elements. It found that the assassi-
nation of the victim, which occurred in 1973, was part of a widespread or system-
atic attack on segments of the civilian population. It indicated that there could
be no amnesty for this offense according to the current dictates of international
law since it constituted a crime against humanity. Thus, the Court found that
the State did not meet its obligation of adapting its national law for the purpose
of guaranteeing the rights established in the American Convention, because it
kept in force the Decree Law, which in Chile does not exempt crimes against hu-
manity from the general amnesty it grants.
It is possible to consider that the Court qualifies the extrajudicial execution
that occurred as a crime against humanity, bearing in mind that its jurisdic-
tion ratione temporis could only have been exercised since 1990. The Inter-
American Court took into account that the European Court had established
that if, at the time of the events, these acts were considered crimes against
humanity by international law (as was indeed the case in 1973), it did not
matter if national legislation did not penalize them. Therefore, its investiga-
tion, judicialization, and penalties are lawful and respect the international
principles established to safeguard the guarantees of the defendants. In 1973,
the year of the death of Mr. Almonacid Arellano, the commissioning of crimes
against humanity, including the murder committed in the context of a wide-
spread and systematic attack on sections of the civilian population, was a vi-
olation of an imperative standard of international law. The Court emphasized
that the said ban on committing crimes against humanity was a standard of
ius cogens, and that the punishment of these crimes was an obligation in line
with general international law. It concluded that the States could not shirk
the duty of investigating, establishing, and sanctioning those responsible for
28 Case of Almonacid Arellano et al. v. Chile [2006], IACtHR, Ser. C No. 154.
crimes against humanity, implementing amnesty laws or other types of in-

ternal regulation.29
The Almonacid judgment triggered various debates on whether the Inter-
American Court had the competence to declare that certain actions constituted
crimes against international criminal law. In fact, in the Cepeda case, the State
presented a preliminary exception relating to a lack of competence in that matter
stating that the Inter-American Court could not declare that a particular right
constituted an offense or that a State was responsible for a crime. The Court
rejected the allegation, stating that in cases of serious violation of human rights
the Court had taken into account that such violations could also be characterized
or qualified as crimes against humanity for the purpose of clearly explaining the
scope of State responsibility within the Convention in that specific case and as-
sess the respective legal consequences, without these having to imply, in any way,
an imputation or offense to any natural person.30
Subsequently, within the context of monitoring compliance of the Barrios
Altos case, the Court determined that the domestic court decision of not con-
sidering the facts to be a crime against humanity was contrary to the State’s
recognition of responsibility and in contradiction with judgments of high do-
mestic authorities (such as the Supreme Court and the Truth and Reconciliation
Commission), which is why it failed to comply with Court orders and impaired
the right to truth.31 As can be seen, the qualification of an offense as a crime
against humanity by the Inter-American Court should not necessarily be un-
derstood as a determination of individual criminal responsibility, but rather,
in a complementary manner, be used by an international court or by national
institutions to specify the scope of due diligence in the respective investigations
and for aspects needed to overcome impunity in a particular case.
2.4. Abuse of the Law and Other Procedural Irregularities

Aimed at Hindering Due Diligence
Apart from the impunity built on exclusion from responsibility or forms of am-
nesty and pardons, the Inter-American Court has had to assess obstacles to due
diligence built on irregular abuse of procedural institutions of domestic law
belonging to the respective States. In the case of the “Las Dos Erres” Massacre
v. Guatemala, the use by the defense of those charged with the massacre of at
29 The Court emphasized that said ban on committing crimes against humanity was a standard of
ius cogens, and that the punishment of these crimes was an obligation in line with general interna-
tional law.
30 Case of Manuel Cepeda Vargas v. Colombia (n. 27).
31 Case of Barrios Altos v. Peru [2012], IACtHR.
least thirty-three appeals for protection was analyzed, some of which took up to
four years to be resolved.32 The Court considered that “the appeals for legal pro-
tection submitted in the internal proceedings exceeded their processing within
the terms established by the law,”33 and that “the provisions which [regulated] the
appeal of protection, the lack of due diligence and tolerance of the courts when
processing as well as the lack of effective judicial protection, [ . . . ] [permitted]
the abuse of the writs of protection as a delaying tactic in the proceeding”34 and
the said abuse was transformed “into an element of impunity.”35
Similarly, in the case of Ibsen Cárdenas and Ibsen Peña v. Bolivia, concerning
forced disappearance, the Court established that in the course of nine years of
domestic crime proceedings, around 111 excuses had been made by various
judges of differing hierarchy and specialization of whom 59 suspended instruc-
tion, judicial debates, or the prosecution of the same. The Court concluded that
the due diligence of the investigation had been impaired, because
the constant filing of abstentions affected the seriousness of the conduction

of the domestic law proceedings. And that those abstentions affected the
processing of this case due to the delays brought as a result of the judicial
system’s minimal control, which, as a consequence of the legislation applied,
left to the judges’ discretion the referral of abstentions to superior authorities
for consultation as to their legality, all of this while threatened with a penalty if
the abstentions were declared legal.36
2.5. Prevalent Formulation of Criminal Definition and

Due Diligence
In cases such as Heliodoro Portugal v. Panama, Tiu Tojín v. Guatemala, Ibsen

Cárdenas, and Ibsen Peña v. Bolivia, or Gelman v. Uruguay, the jurisprudence
established that, in the framework of due diligence regarding the prosecution
of forced disappearances, when domestic investigations had been opened only
as homicide or kidnapping, excluding other offenses such as torture or forced
disappearance, it is possible that the criminal case would reach its statute
of limitations at the domestic courts. For this reason, it has been noted that
32 Cf. Case of the “Las Dos Erres” Massacre v. Guatemala [2009], IACtHR, Ser. C No. 211, paras.
111, 113, 114, and 115.

35 Ibid.
36 Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia [2010], IACtHR, Ser. C No. 217, para. 190.
when dealing with serious violations of human rights, in particular forced

disappearances, authorities should investigate and prosecute cases based on
the most stringent criminal norms. Additionally, as it pertains to a crime of a
continuous execution, that is to say, one whose consummation extends over
time, when the formulation of criminal definition of the offense of forced
disappearance comes into force, the new law became applicable without it
representing retroactive application or a violation of the principle of legality.37
Also, the Court stressed that the formulation of criminal definition of forced
disappearance of persons as an autonomous crime and the explicit definition
of punishable conduct it included were of vital importance for effective eradi-
cation of this practice.
2.6. Due Diligence, Systemic Crimes, and

“Transitional” Contexts
A large portion of the case law developments on due diligence are connected
with countries which address the matter of how to tackle past atrocities, or what
measures ought to be taken to cope with a situation of armed conflict or of large-
scale systematic violations of rights. In this context, there is a significant debate
as to the specific nature achieved by certain obligations relating to the investiga-
tion and punishment of these crimes.
Some of these debates have been raised in cases before the Inter-American
Court which involve an analysis of “systemic crimes.”38 For example, in the case
of Rochela Massacre v. Colombia, the ruling of which was issued in 2007,39 the
Court analyzed the execution, in 1989, of several members of a judicial com-
mittee who were investigating crimes committed by paramilitaries. Although
Colombia’s judiciary had convicted seven individuals and a noncommissioned
officer of the army —for concealing information—the Court established that
several relationship patterns between the paramilitary group that committed the
massacre, and the senior military commanders, and civil authorities of the said
zone had not been investigated.
The Court declared said State internationally responsible for the issuance of a
legal framework through which it encouraged the creation of self-defense groups
which developed into paramilitary ones.40 Moreover, the Court declared that
37 Case of Gelman v. Uruguay. Merits and Costs [2011], IACtHR, Ser. C No. 221.
38 For more on the concept and implications of institutional design inherent to systemic crim-
inality, see Michael Reed Hurtado (ed.), Judicialización de crímenes de sistema. Estudios de caso y
análisis comparado (ICTJ 2008).
39 Case of the Rochela Massacre v. Colombia [2007], IACtHR, Ser. C No. 163.
40 Case of the 19 Merchants v. Colombia [2004], IACtHR, Ser. C No. 109.
Colombia had not adopted the necessary measures to effectively end the risky
situation created by the same State by way of the aforementioned legal frame-
work,41 and had not adopted effective preventative and protective measures for
the civilian population in a situation where attacks from paramilitary groups
could likely be anticipated.42 Also, the Court declared Colombia responsible for
the support, acquiescence, participation, and collaboration between members of
the armed forces and paramilitaries.43
In the case of the Rochela Massacre, the Court specifically analyzed a regu-
lation and counter-guerrilla combat manual, which stated in great detail the
functions and ties between the armed civilian groups and the security forces. The
test in this case indicated that such regulations had fostered various institutional
relationships between the State and the paramilitaries, including training, organ-
ization and patrols, and intelligence networks. Thereon, the Court specified:
[T]‌he State allowed the involvement and cooperation of private individuals in

the performance of certain duties (such as the military patrol of public order
areas, the employment of arms designed for the exclusive use of the armed
forces or the performance of military intelligence activities), which, in general,
are within the exclusive competence of the State and where the State has the
special duty to act as a guarantor. Therefore, the State is directly responsible,
either as a result of its acts or omissions, for all the activities undertaken by these
private individuals in the performance of the foregoing duties, particularly if it
is taken into consideration that private individuals are not subject to the strict
control exercised over public officials regarding the performance of their duties.
The situation in which private individuals cooperated in the performance of
such duties reached such a magnitude that, when the State sought to adopt
measures designed to address the lack of restraint in the actions undertaken by
paramilitary groups, these groups themselves, with the support of State agents,
attacked the judicial officers.44
Furthermore, the Court emphasized the particular gravity of the crimes. The
Court took into account that the State was responsible for a massacre directed
against its own judicial officers while they were performing their duty of
investigating serious violations of human rights, and that members of the State
armed forces had participated in the massacre. Furthermore, the Court stated
that such a crime was part of a pattern of killings and acts of violence toward
41 Case of the Pueblo Bello Massacre v. Colombia [2006], IACtHR, Ser. C No. 140.
42 Case of the Ituango Massacres v. Colombia [2006], IACtHR, Ser. C No. 148.
43 Ibid.; Case of the “Mapiripán Massacre” v. Colombia [2005], IACtHR, Ser. C No. 134.
44 Case of the Rochela Massacre v. Colombia (n. 39), para. 102.
judicial officers with such responsibilities, the aim being to intimidate and
frighten the justice system in order to achieve impunity for atrocities.
The Court observed that the State failed to conscientiously investigate the sys-
tematic patterns in which the actions of those responsible were incriminated.
Instead, over a period of eighteen years in a criminal trial, the prosecution at the
local level made at least seven failed attempts to identify and single out approx-
imately one hundred persons who were indicated by an “alias” or whose role in
a paramilitary group was clearly uncertain. Additionally, the attempts to iden-
tify members of the armed forces were confined to officers and subalterns of a
low rank. The State failed to investigate the responsibility of high-ranking mili-
tary officers in the zone. Furthermore, the disciplinary trials of civil authorities
and other State agents had been completely inefficient. The Court found that all
the foregoing “affected, in particular, the identification of possible responsible
persons in charge of the military battalions involved in the field of activity of
the paramilitary groups associated with the massacre.”45 Taking into account the
dimensions of what had not been investigated, the Court highlighted the need
to analyze patterns associated with the criminal execution structure and the re-
sponsibility of the military commanders of the zone.46
In context of the facts of the present case, the principles of due diligence
required that the proceedings be carried out taking into account the complexity
of the facts, the context in which they occurred and the systematic patterns
that explain why the events occurred. In addition, the proceedings should
have ensured that there were no omissions in gathering evidence or in the
development of logical lines of investigation. Thus, the judicial authorities
should have borne in mind the factors [ . . . ] that denote a complex structure of
individuals involved in the planning and execution of the crime, which entailed
the direct participation of many individuals and the support and collaboration
of others, including State agents, an organisational structure which existed
before the crime and persisted after it had been perpetrated, because the
individuals who belong to it share common goals.47
In a similar vein, concerning due diligence in the investigation of systemic

crimes in the Cepeda case, the Court announced that army members and

46 The Court indicated that “the judicial authorities should have borne in mind the factors [ . . . ]
that denote a complex structure of individuals involved in the planning and execution of the crime,
which entailed the direct participation of many individuals and the support and collaboration of
others, including State agents, an organisational structure which existed before the crime and
persisted after it had been perpetrated, because the individuals who belong to it share common
goals.” Ibid., para. 158.
47 Ibid.
members of one or several paramilitary groups had participated in the planning

and implementation of the killings. The Court established:
[A]‌lthough the division of tasks makes it difficult to clarify the ties between
the perpetrators, in complex cases, the obligation to investigate includes the
duty to direct the efforts of the apparatus of the State to clarify the structures
that allowed these violations, the reasons for them, the causes, the beneficiaries
and the consequences, and not merely to discover, prosecute, and, if applicable,
punish the direct perpetrators.48
In view of the foregoing, the IACtHR ordered as a redress to:
identify the group of individuals involved in the planning and execution of the
facts, including those who designed, planned or assumed control, decision or
leadership of their implementation, and those who performed the necessary
logistic functions to execute the decisions taken, even if senior civil authorities,
high-ranking military officers or intelligence services are involved, avoiding
omissions in following up on logical lines of investigation.49
It is possible to detect a certain complementarity between these standards and

those developed in international criminal law regarding criminal participation
such as the “joint criminal enterprise,” perpetration-by-means, co-perpetration-
by-means, command responsibility, and so forth. The use of these entities to al-
locate individual criminal responsibility can help toward giving effect to strict
due diligence in the investigation depending on the details implemented by the
Inter-American Court.50
On the other hand, in the Rochela Massacre case and in the Cepeda case, the
IACtHR was informed of the implementation of standards of “transitional jus-
tice” in relation to the process of demobilization and bestowal of judicial benefits
to paramilitary groups. In Colombia, “alternative sentencing” was incorporated
as a “benefit consistent with suspending the issuance of the determined penalty
in the respective sentence, replacing it with an alternative penalty” of between
five and eight years duration, “conceded to allow the beneficiary to contribute to
48 Case of Manuel Cepeda Vargas v. Colombia (n. 27), para. 118.

50 In this context, concepts such as “collection of evidence,” “relevant fact,” the assessment of ev-
idence, among other benchmarks for an investigative methodology, evolve according to the needs
of the inquiry into systematization. For an analysis of this possible dynamic relationship, see Ward
Ferdinandusse, Direct Application of International Criminal Law in National Courts (T.C.M., Asser
Press 2006) and, in the case of Colombia, Alejandro Aponte, “Persecución nacional de crímenes
internacionales: el caso colombiano,” en K. Ambos y E. Malarino (eds.), Persecución nacional de
crímenes internacionales en América Latina y España (Instituto MaxPlank para derecho penal
internacional de Friburgo y Fundación Konrad Adenauer 2003), 201–258.
the achievement of national peace, collaborate with the law, and make amends to
and adequately resocialise the victims.”51
Concerning this type of law, in the case of the Rochela Massacre, the Court
stated that “all the elements which prompt the effectivity of the penalty should
return a verifiably sound objective and be compatible with the Convention.”52
The insistence on verifiable compliance of this objective, intended as a penal
benefit, infers that the Court does not deny the possibility of granting such a ben-
efit. Nevertheless, the Court correspondingly verifies—both normatively and
empirically—that the State makes progress with the high legal constraint in its
proposal of justice to the victims.
On the other hand, some of these standards on demobilization allow the ac-
quisition of legal benefits (for example, suspension of the issuance of penalties)
for persons who were not investigated for serious human rights violations, even
though they belonged to a group responsible for systemic crimes (such as per-
sons who claim to have participated only as logistical support or only carried
illegal weapons). In the Cepeda case, the Court conceded that during the process
of demobilization of one of the perpetrators of the crimes, the State did not adopt
the due diligence required for his individualization and proper identification, so
that he would not receive those benefits, which were intended for individuals not
involved in serious violations of human rights.
At the end of 2010, the IACtHR issued a further significant precedent in
the area of transitional justice: the case of Gomes Lund et al. (“Guerrilha Do
Araguaia”) v. Brazil.53 The matter was the forced disappearance of the members
of a resistance movement during the Brazilian military regime, and the imple-
mentation of an amnesty law which hindered the investigation and punishment
of those responsible. The IACtHR reiterated its jurisprudence concerning access
to justice in such cases. Concerning what was debated upon by the parties as to
whether the Brazilian Amnesty Law was an amnesty, a self-amnesty or a “po-
litical agreement,” the Court indicated that incompatibility with the American
Convention included amnesties of serious violations of human rights and was
not restricted solely to the so-called “self-amnesties.” In addition, the Court in-
dicated that incompatibility of the amnesty laws with the American Convention
did not stem from its implementation process and from the authority which is-
sued these (formal aspect), but from the material aspect of providing impunity
from serious violations of international law committed by the military regime.
On the other hand, the IACtHR observed that the monitoring of convention-
ality had not been observed by the jurisdictional authorities of the State and that,
51 Case of the Rochela Massacre v. Colombia (n. 39), para. 182.

53 Case of “Gomes Lund v. Brasil” [2010], IACtHR, Ser. C No. 219.
on the contrary, a Federal Supreme Court judgment which had confirmed the
validity of the amnesty law did not observe Brazil’s international obligations
stemming from international law. Also, in this case, the IACtHR issued impor-
tant definitions on the scope of the right to truth. The Court established that in
cases of violations of human rights, the State authorities were not permitted to
use protective mechanisms like State secrecy, confidentiality of information,
reasons of public interest, or national security, to withhold information re-
quired by the legal or administrative authorities in charge of the investigation
or pending trials. Also, in cases where a punishable act is being investigated, the
decision whether information qualifies as being secret, and refusal to submit the
latter or refusal to determine if documentation still exists, may depend exclu-
sively on a State authority whose members are delegated the task of performing
wrongful acts.
2.7. Limitations on the Intervention of the Military

Criminal Jurisdiction
The IACtHR indicated that “the military criminal jurisdiction is not the compe-
tent jurisdiction to investigate and, in its case, prosecute and punish the authors
of violations of human rights but that instead the processing of those responsible
always corresponds to the ordinary jurisdiction.”54 The Court also mentioned
the problems of unconventionality of such “ample and imprecise” standards
that prevented “the objective assessment as to whether the crimes could be le-
gally classified as civil or military ones”, or that extended “the competence of
the military jurisdiction to crimes which do not have a strict connection with
military discipline or with juridical rights characteristic of the military realm.”55
Furthermore, the Court addressed the incompetence of the military jurisdiction
in investigating all events which constituted violations of civilian human rights.56
2.8. Impulse of Extraordinary International

Supervisory Mechanisms
An extraordinary international supervisory mechanism was the Grupo

Interdisciplinario de Expertos Independientes (GIEI (Interdisciplinary Group
of Independent Experts)), which was agreed upon by the Inter-American
54 Case of Radilla Pacheco v. Mexico [2009], IACtHR, Ser. C No. 209, para. 273.
56 Ibid., paras. 273, 286, and 289. A further three cases versus Mexico, the judgments of which
were issued in 2010, reiterated this type of rule.

Commission, the State of Mexico, petitionary human rights organizations,

and the relatives of the forty-three students who were forcibly abducted in
Ayotzinapa.57 The mandate of the GIEI had three objectives: (1) to set up the
students’ search and rescue plans; (2) to technically analyze the lines of inves-
tigation to determine criminal responsibility; and (3) to conduct an analysis of
the integrated care plan for the victims of the acts. The GIEI was established by
five experts and independent experts (none of them of Mexican nationality), and
supported by a technical team. Upon conclusion of their work, in April 2016,
the GIEI left behind a series of lines of investigation to follow up on what had
happened to the students and determine who was responsible for their forced
disappearance.
This initiative emerged quite soon, only a few months after the shocking
events and not decades later, as tends to be the case with many inter-American
decisions. This helps improve the chances of success of the investigation, because
much of the assessment of evidence can still be conducted without the passage of
time affecting the availability of evidence. The GIEI activities were continued via
transfer to the Special Follow-Up Mechanism as a Precautionary Measure of the
Ayotzinapa case (established by IACHR staff), whose first report was issued in
2018 and which has been promoting IACHR hearings on the issue.
Another similar mechanism was established in 2018, following the subju-
gation of protests which flared up in Nicaragua against policies driven by the
government of Daniel Ortega. For this reason, the Inter-American Commission
began a working visit and registered the excessive use of force majeure /by State
security bodies and armed third parties. Also, the IACHR received complaints
concerning the death of 76 persons and a further 868 injured.58 On June 25,
2018, the IACHR announced the establishment of the Mecanismo Especial
de Seguimiento para Nicaragua (MESENI (Special Monitoring System for
Nicaragua)), created by a technical team from the same Commission. The goal
of the MESENI is to follow up on the fifteen recommendations issued by the
IACHR following its working visit in May of 2018 and the recommendations
arising from the Report on Serious Violations to Human Rights in the context of
the social protests in Nicaragua.59 The IACHR also announced the creation of the
aforementioned Interdisciplinary Group of Independent Experts (GIEI) in the
case of Nicaragua, set up by international experts to contribute to and support
domestic investigations into acts of violence which occurred in Nicaragua. The
GIEI was supplied with powers to technically analyze the lines of investigation
57 Students of the rural school “Raúl Isidro Burgos,” Mexico [2014], IACHR, Resolution 28/2014
Precautionary Measure No. 409-2014.

58 Observaciones preliminares de la visita de trabajo de la CIDH a Nicaragua [2018] IACHR.
59 Report on Serious Violations to Human Rights in the context of the social protests in Nicaragua
[2018] IACHR.
and make recommendations to the State on the level of legal responsibility. In

particular, reviewing whether adequate legal entities are being utilized for the
framework of possible illicit deeds and those responsible for them. The group
was supplied with the autonomy and independence to access investigative and
security files.
2.9. Due Diligence in the Investigation of Executions

and Disappearances
In 2019, the Inter-American Court had the opportunity to reiterate its consistent
case law concerning its duty to investigate serious violations of human rights. In
the case of Diaz Loreto et al v. Venezuela,60 the Court held the State internation-
ally responsible for the victims’ detention and later extrajudicial execution by
police officers.61 Similarly, regarding the duty to investigate, it indicated:
The Court has established that efficient determination of the truth within the
context of the obligation to investigate a death must be evident as of the very
first procedures. When investigating the violent death of a person, the first
stages of investigation are of crucial importance, as is the negative impact that
omissions and irregularities may have in such stages on the proper and effective
prospects of clarifying the event. In this context, this Court has specified the
guiding principles that require observation in an investigation concerning
violent death, as is clear from the events of the present case. The State authorities
who conduct an investigation of this type must try, at the very least, inter alia: i)
to identify the victim; ii) to recover and preserve the probative material related
to the death in order to assist in any potential criminal investigation of those
responsible; iii) to identify possible witnesses and obtain their statements in
relation to the death under investigation; iv) to determine the cause, manner,
place and time of death, as well as any pattern or practice which could have
caused the death, and v) to distinguish between natural death, accidental death,
suicide and homicide. The autopsies as well as analyses of human remains must
be rigorously performed by competent professionals, employing the most
appropriate procedures.
In addition, the Court indicated in its case-law regarding the scene of crime that
the investigators must, at the very least: i) photograph the scene and any other
physical evidence, and the body as it was found and after it has been moved; ii)
60 The case referred to the extrajudicial execution perpetrated against three persons within the
context of extrajudicial executions on the part of police officers in Aragua State, Venezuela. Case of
Díaz Loreto et al. v. Venezuela [2019], IAtCHR, Ser. C No. 392.
61 Ibid., para. 97.
gather and conserve all samples of blood, hair, fibres, threads and other clues;
iii) examine the area to look for footprints or any other trace that could be used
as evidence, and iv) prepare a detailed report with any observations regarding
the scene, the measures taken by the investigators, and the assigned storage of
all the evidence collected. The Court also ruled that when investigating a scene
of crime, the latter shall be maintained with a view to protecting all evidence.62
In this case, the international responsibility of the State was determined, since
it had been verified that “proceedings had not been initiated to monitor various
aspects of the version offered by relatives and other witnesses, such as a recon-
struction of events, the investigations of the victims’ clothing, the evidence of
the mud they had in their mucous membrane, lungs and digestive system, etc.”63
and that “it had not been proven whether the victims had fired the weapons
which were collected at the scene of the crime since there had been no sam-
pling of fingerprint or of traces of powder on the hands, none of which had been
controverted by the State in its arguments.”64 The Court thus concluded that “the
lack of implementation of proceedings and important samples, in particular
concerning the scene of the crime and examination of bodies resulted in an in-
fringement of the due diligence required in an investigation.”65
2.10. Pardons for Humanitarian Reasons Should Not Affect

the Proportionality of Punishment
On May 30, 2018, the Inter-American Court issued an order on the monitoring
compliance of the aforementioned judgments of the Barrios Altos and La Cantuta
cases, in which it assessed the compatibility of the presidential authority to issue
a pardon for humanitarian reasons in favor of a perpetrator of serious violations
of human rights. The specific case concerned Alberto Fujimori, the former presi-
dent of Peru, who had been convicted for commissioning the said serious crimes.
To determine the compatibility of the humanitarian pardon with interna-
tional human rights law, the Inter-American Court assessed whether it dispro-
portionately affected the victims’ right of access to justice. The Court indicated
that the penalty imposed on the perpetrator of a serious violation of human
rights “cannot be unduly affected or become illusive during enforcement of
the judgement which imposed the punishment in adherence to the principle
62 Ibid., paras. 104 and 105. See also Case of Gómez Virula et al. v. Guatemala [2019], IACtHR, Ser.
C No. 393, paras. 73 and 74.

of proportionality.”66 In this case, the Court then assessed (1) the existence of
measures to safeguard the life and personal integrity of the persons deprived of
their liberty, (2) the right of access to justice of the victims of serious violations
of human rights, and (3) the possibility of jurisdictional monitoring of the
Presidential Resolution through which the pardon for humanitarian reasons has
been conceded. The Court concluded:
[I]‌t would be up to the national authorities to determine if the Peruvian legal

system were able to provide alternative measures which, without involving
a pardon on the part of the Executive, would allow protection of the life and
integrity of Alberto Fujimori, convicted of serious violations of human rights,
assuming that his state of health and detention conditions really posed a threat
to his life. One would have to consider which measure were most in line with
the principle of proportionality and the right of access to justice of the victims.67
3. Transformational Impact
The various standards and criteria associated with due diligence in the battle
against impunity have been projected in legal decisions in the domestic envi-
ronment as readjustments of institutional designs, schemes, directives, and other
types of measure adopted by human rights institutions.
For example, the inter-American standards boosted legal and constitutional
reforms in the criminal military jurisdiction of Colombia, Peru, Argentina, and
Mexico.68 Another advance at an institutional level has been the implementation
of the Istanbul Protocol in Colombia as of the Gutiérrez Soler case. In fact, the
said case led to the issuance of domestic directives by the Attorney General and
the National Institute of Legal Medicine and Forensic Sciences.69
In Colombia, the rulings of the Inter-American Court have been used in
decisions of the High Courts of the country (Constitutional Court, Council of
66 Case of Barrios Altos and Case of La Cantuta v. Peru [2018], IACtHR, Monitoring of Compliance
with Judgment, para. 47.

67 Ibid., “Whereas” Clause 68.
68 Annabella Sandri Fuentes “La reforma integral del sistema de justicia militar argentino
motivada por el cumplimiento de las obligaciones que surgen de la Convención Americana sobre
Derechos Humanos” [2015] 61 Revista IIDH 319–356; Juan Rial (ed.), La justicia militar. Entre la
reforma y la permanencia (RESDAL 2010); Julio Ríos-Figueroa, Constitutional Courts as Mediators.
Armed Conflict, Civil-Military Relations, and the Rule of Law in Latin America (Cambridge University
Press 2017).
69 Mónica Trespalacios Leal, El estado colombiano frente a las órdenes de investigar, juzgar y
sancionar a los responsables de violaciones a los derechos humanos, dictadas por la Corte Interamericana
de Derechos Humanos (National University of Colombia 2018).
State, Supreme Court of Justice), the Office of the Attorney General, supervi-
sory bodies (Ombudsman’s Office, Office of the Inspector General), and even by
branches of the executive and the legislative powers.70
The rulings of the IACtHR in the Velásquez Rodríguez and Barrios Altos cases
had a strong effect on the determination of Judgment C-004 of 2003, in which
the Constitutional Court verified the constitutionality of one of the causal factors
for the origin of the extraordinary appeal for review in criminal matters. The
Court found that this appeal was not only implemented in favor of the accused,
and stated that it was possible to restrict the principle of ne bis in idem in cases of
violations of human rights and of serious infringements of international human-
itarian law. Taking as a foundation the inter-American jurisprudence, among
other entities, the Court indicated that the duties of the State in investigating and
punishing the violations of human rights are much more intensive than in the
case of petty offenses and that, as a result, the rights of the victims become more
prevalent. The High Court then explained that the decisions of international
bodies could generate, under certain assumptions, the reopening of proceedings,
and the modification of sentences which have been transferred to res judicata.71
This transcendental decision had an impact on a later legislative debate which
lead to the reform of the procedural code which incorporated this approach.72
Also, this precedent has been used by the Criminal Chamber of the Supreme
Court of Justice to reopen various cases concerning violations of human rights.73
70 See Alejandro Ramelli, “Sistema de fuentes del derecho internacional público y ‘bloque de
constitucionalidad’ en Colombia” [2004] 11 Revista Mexicana de Derecho Constitucional 157;

Rodrigo Uprimny, Uses and Abuses of Transitional Justice Discourse in Colombia (PRIO 2007).
71 The High Court stated that the appeal for review takes place when there is “a domestic court
ruling or a decision from an international supervisory and monitoring authority on human rights,
formally accepted by our country, which determines the existence of this new offence or of a test that
was not known at the time of the debates.” In the same manner, it indicated that the review process
could not be appealed against the penal orders which declared termination of the investigation, the
proceedings or of the judgment of acquittal, “invariably, and when a domestic court decision, the de-
cision of an international court on supervision and monitoring of human rights, formally approved
by our country, establishes a conspicuous breach of the obligations of the Columbian state, thor-
oughly and impartially to investigate said violations.”
72 Article 4 of Law 906 of 2004.
73 Taking into account, among other entities what was ordered by the Inter-American Court in
the Case of the 19 Tradesmen, the Criminal Appeals Chamber of the Supreme Court of Justice of
Colombia approved an appeal for review and ordered the reopening of investigations against the
senior military officers of the zone. Cf. Judgment issued on March 6, 2008, file 24841. A similar
reopening of the investigations against several acquitted persons occurred in connection with the
receipt, at a domestic level, of the judgments of the Inter-American Court on the extrajudicial execu-
tion of Jesús María Valle Jaramillo, a defender of human rights, and on the torture suffered by Wilson
Gutiérrez Soler. Cf. Judgments of July 6, 2011, and September 17, 2008, respectively. See also the
judgments of November 1, 2007 (relating to the decision of the Inter-American Commission in the
Leydi Dayán Sánchez case) and of February 24, 2010 (concerning the decision of the Inter-American
Commission in the Case of Collective 82).
On the other hand, as indicated by Góngora,74 in other rulings it is possible

to observe a co-evolutionary vision of a convergence of standards concerning
the rights of victims between the Constitutional Court and the Inter-American
Court. For example, in the Mapiripán case the litigants requested a specific dec-
laration of the Inter-American Court disapproving of the aforementioned “Law
of Justice and Peace” that had not yet been passed. The IACtHR abstained from
a direct declaration in this respect, although it did reiterate the scope of its juris-
prudence regarding the impossibility of amnesties for serious violations and of
the principles of victims’ access to justice. Subsequently, when the Constitutional
Court had to review the Law of Justice and Peace, it referred to inter-American
jurisprudence. The Constitutional Court identified several problems of the said
law, and ordered various amendments to strengthen victims’ rights.75 When the
controversy returned to the regional level, in the aforementioned cases of the
Massacres of La Rochela and Cepeda, the Inter-American Court supported the
jurisprudence of the Constitutional Court in insisting on the guidelines the law
had to comply with and the due diligence required from the authorities charged
with its implementation.
One expression of dialogues that goes beyond the judicial reception of
inter-
American standards can be witnessed in recent legal strategies in
Colombia where the lessons learnt from the Inter- American System are
projected. It consists of a Comprehensive System of Truth, Justice, Reparation
and Guarantees of Non-Repetition established by the Final Peace Agreement
negotiated between the State of Colombia and the former FARC guerrilla group
in 2016. The Comprehensive System incorporates judicial and extrajudicial
mechanisms to safeguard the rights of the victims. The judicial component of the
system is incorporated into the Special Jurisdiction for Peace (JEP). The extra-
judicial mechanisms are the Truth Commission, the Search Unit for Presumed
Disappeared Persons, and the mechanisms of administrative reparation.
The JEP was conceived as a tribunal to end domestic armed conflict in
Colombia,76 leading to the creation of an institutional apparatus which aims to
define the legal situation of all those who participated in the conflict and, at the
same time, create incentives which satisfy and boost the rights of the victims. In
74 Manuel Eduardo Góngora Mera, “Diálogos Jurisprudenciales Entre La Corte Interamericana
de Derechos Humanos y La Corte Constitucional de Colombia: Una Visión Coevolutiva de La

Convergencia de Estándares Sobre Derechos de Las Víctimas,” La Justicia Constitucional y su
Internacionalización: ¿Hacia un Ius Constitutionale Commune en América Latina?, vol II (UNAM,
Instituto de Investigaciones Jurídicas, Max-Planck-Institut Für Ausländisches Offentliches Recht
und Völkerrecht e Instituto Iberoamericano de Derecho Constitucional 2010).
75 Judgment C-370 of 2006.
76 Andrés Bermúdez Liévano, Los debates de La Habana: una mirada desde adentro (Institute for
Integrated Transitions 2019), 234–235.

Colombia, these rulings have been making changes to concepts and the manner
of investigation, judgment, and punishment.
It is worth mentioning that the inter-American criteria of due diligence in
investigation are central to the design of the JEP, with special emphasis on the
analysis of macro-criminality. On the matter of investigation, a constitutional
reform has allowed the possibility of prioritizing and selecting cases to promote
the elucidation of the most serious and representative crimes. Also, the principal
focus of action is on criminal charges for the most responsible perpetrators and
on the criminal structures which allowed the perpetration of the crimes. On
the other hand, the proceedings of investigation and prosecution are strongly
characterized by the contributions to the truth and reparations offered by those
appearing in court. The accused submit themselves to a system of condition-
ality under the new Comprehensive System as a requirement for maintenance
of benefits.
The special emphasis on analysis of context and on analysis of macro-
criminality are effects of inter-American jurisprudence. In fact, from some of
the judgments I have reviewed in this chapter, the IACtHR has pointed out that
a certain type of serious violation of human rights are understood to be linked
to other acts in a specific context, and to certain policies, patterns, criminal
plans, and special practices. Investigations that analyze individual crimes in iso-
lation fail to make various connections and often result in the impunity of the
cases. Unveiling the criminal plans, patterns, and policies is crucial for obtaining
the guarantees of non-repetition which the inter-American jurisprudence has
insisted on concerning reparations.
One example of this type of judicial macro-case of the JEP is useful to un-
derstand the magnitude of the challenge. Case 03 on extrajudicial executions
analyzes more than four thousand executions that occurred in every department
of the country. The case is determining the main individuals responsible among
around twenty-five hundred servicemen associated with the executions.77 At the
point of termination of this chapter, six hundred victims have been accredited,
and more than twenty human rights organizations participate as legal represent-
atives. The victims and their organizations have presented reports which file the
atrocities. For example, one of the most recent reports listed 232 executions in a
single region of the country. On the other hand, more than 80 of the crimes are
currently being tried in international lawsuits before the Inter-American System.
For this reason, the JEP Chamber for the Acknowledgment of Truth, currently
in charge of the macro-case, has highlighted many of these crimes. Furthermore,
the Chamber’s dialogues with the inter-American authorities shall remain
permanent.
77 <https://www.jep.gov.co/Especiales/casos/03.html> (accessed December 13, 2022).

Finally, another field relevant to the interaction between the inter-American

community and the national one can be seen in the connection of the
Constitutional Court of Colombia with the implementation of several inter-
American rulings. In fact, regarding several precautionary measures (of the
Inter-American Commission) and provisional measures (of the Inter-American
Court), the Constitutional Court has upheld its obligation in the domestic
field and issued various orders to contribute to the compliance of the measures
imparted by the Commission and the Court. These orders, particularly related
to the thorough investigation of crimes, include the provision of specific types
of information necessary for conducting the investigations with due diligence.78
The legal developments analyzed in this chapter illustrate some advances and
challenges in the case law of the Inter-American Court in the battle against im-
punity. The analyzed cases demonstrate several development routes toward a
protective union building on the interaction between the national systems and
the inter-American one.79 This constitutes a dynamic process which has taken on
a variety of forms depending on the institutional design of the respective coun-
tries. This protective union encourages a legal dialogue in which the positive
aspect of one level is called upon to strengthen the other parallel level, in light
of the principle of the most favorable interpretation. In this context, as Diego
García-Sayán80 has indicated, the legal standards arising from international law
make no sense whatsoever without a State counterpart which applies them and
abides by them, because “they [are] the most immediate national references the
population has, and are the institutional structures and social structures capable
of advancing or reversing the gains which can be achieved in terms of human
rights.”
The Inter-American Court has also made an effort to achieve a high level of
efficiency in the battle against impunity in striving to implement its decisions by
way of more precise orders and by trying to strengthen the initiatives of internal
actors. The Court thus contributes to forms of institutional empowerment to try
to break down the factors that generate impunity in a specific situation, and that
78 See in this regard Judgments T-327 of 2004 (on the precautionary measures in support of the
Peace Community of San José de Apartadó) and T-558 of 2003 (on precautionary measures issued by
the Inter-American Commission).
79 Manuel Eduardo Góngora Mera, Inter- American Judicial Constitutionalism. On the
Constitutional Rank of Human Rights Treaties in Latin America through National and Inter-American
Adjudication (IIDH 2011).
80 Diego García-Sayán, Una Viva Interacción: Corte Interamericana y Tribunales Internos Un
Cuarto de Siglo 1979-2004 (La Corte Interamericana de Derechos Humanos (IACtHR) 2005).
use legal means to hold authorities to account to the highest possible degree. The
approaches from the Court demonstrate great interest in combining purely nor-
mative reasonings with empirical findings to boost justice in the best manner,
generating improvement strategies that have proven to be effective when decreed
by the Court.
In this sense, the cases analyzed also illustrate the great paradox surrounding
the Inter-American System. These cases reach the Inter-American Court be-
cause decisions and internal institutions, in particular judicial ones, have not
been effective in re-establishing the rule of law. Nonetheless, the efficacy of the
Inter-American System depends on the ability of those national institutions,
along with the bodies of the system, to implement inter-American standards.
Despite the said paradox, on a path which is not free of unsatisfactory aspects,
the Inter-American Court has been keeping the promise of the Inter-American
System toward the victims by offering circumstances in which the rule of law is
fully established where the local institutions have not responded adequately to
their grievances. And, in this undertaking, the Court has come across various
local actors who, by working together with it, have allowed the Inter-American
System to continuously provide room for hope.
II.13
The Independence of Justice as a Human
Right and an International Obligation
in Inter-American Jurisprudence
By Carlos Ayala Corao
1. Introduction
The rights of all persons, as recognized in the American Convention on Human

Rights (American Convention, or ACHR), are simultaneously obligations upon
the States parties and must be respected, guaranteed, and protected. In other
words, a human being is the holder of international human rights that are re-
flected in the international obligations of nation States. In this respect, Article
1 of the American Convention stipulates that the States parties undertake to
respect the rights recognized in the Convention and to ensure that all persons
subject to their jurisdiction can freely and fully exercise these rights without dis-
crimination on the basis of race, color, sex, language, political opinion or any
other opinion, national or social origin, economic status, position at birth, or any
other social condition. This obligation upon the States parties is complemented
by the obligation to adopt provisions in domestic law that commit the States
parties to implement, in accordance with their constitutional procedures and
the stipulations of the American Convention, the legislative measures or other
measures required in order to give effect to the rights mentioned in Article 1 if
the exercise of these rights is not already guaranteed by legislative provisions or
provisions of another kind.
This treaty framework assumes that the States parties, as the addressees of the
obligations relating to human rights, are those who directly take responsibility
for effective compliance with international obligations to respect and ensure
human rights within their domestic jurisdiction. Therefore, the States parties are
responsible for enforcing human rights without any discrimination with regard
to all persons under their jurisdiction.
According to the jurisprudence of the Inter-American Court of Human Rights
(Inter-American Court, or IACtHR), these obligations to respect and ensure the
Carlos Ayala Corao, The Independence of Justice as a Human Right and an International Obligation in Inter-American
Jurisprudence In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia
Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press.
© Carlos Ayala Corao 2024. DOI: 10.1093/oso/9780197744161.003.0024
450 Carlos Ayala Corao
rights contained in Article 1 of the American Convention imply “an obligation

upon the States Parties to organize the governmental apparatus and, in general,
all the structures through which public power is exercised, so that they are ca-
pable of juridically ensuring the free and full enjoyment of human rights.”1
2. Human Rights and the International Obligation of

Effective Judicial Protection
2.1. The Essential Content of the Right/Obligation to Protect

That Right
Human rights and the treaty obligation of the States parties to protect the rights
of all human beings should be structured through the separation of powers and
judicial independence.
The protection of the rights of all human beings is expressed in international
treaties through the right to simple and prompt recourse, or any other effective
recourse, to a competent, independent, and impartial judge or tribunal.2
The right to effective judicial protection of human and fundamental rights
is accompanied by certain essential, intrinsic, substantial, and inseparable
guarantees. These are the judicial guarantees of due process for the protec-
tion of human rights for all persons accessing justice:3 the petitioner or ap-
pellant; the victim; and the defendant or accused. Of these judicial guarantees
to which all persons are entitled, the right to be heard stands out first and
foremost: (i) by a competent, independent, and impartial judge or tribunal; (ii)
previously established by law; (iii) with due guarantees; (iv) within a reason-
able time. The rights of persons accused of a crime are also noteworthy: (v) to
be presumed innocent as long as his guilt has not been proven according to
law; and (vi) with full equality, to the minimum guarantees of Article 8.2 of
the ACHR.
In accordance with the aforementioned principles of international law as per
Articles 1 and 2 of the American Convention, the States parties undertake to en-
sure effective judicial protection for all persons subject to their jurisdiction with
the guarantees of due process and of the rights recognized in their constitution,
laws, and the Convention itself without discrimination of any kind.
1 IACtHR, “Exceptions to the exhaustion of domestic remedies (Art. 46(1), 46(2)(a), and 46(2)(b),
American Convention on Human Right,” Advisory Opinion OC-11/90, August 10, 1990, Ser. A No.
11, para. 23.
2 Art. 25, ACHR.
3 Art. 8, ACHR.
The Independence of Justice as a Human Right 451
2.2. Protection via Independent Judges and Tribunals
The protection of rights in accordance with Article 25 of the Convention is not

restricted to a requirement that the judges or tribunals be competent; instead—in
accordance with Article 8.1 of the Convention—they must also be “independent
and impartial.”
Thus, the American Convention requires that the effective judicial protection
of rights be guaranteed through independent judges and tribunals. The Basic
Principles on the Independence of the Judiciary of the United Nations cited re-
peatedly in the reports and decisions of the IACHR and the IACtHR state the
following:4
1. The independence of the judiciary shall be “guaranteed by the State” so that

“it is the duty of all governmental and other institutions to respect and ob-
serve the independence of the judiciary.” (Principle 1)
2. “The judiciary shall decide matters before them impartially, on the basis
of facts and in accordance with the law, without any restrictions, improper
influences, inducements, pressures, threats or interferences, direct or indi-
rect, from any quarter or for any reason.” (Principle 2)
3. “The judiciary shall have jurisdiction over all issues of a judicial nature and
shall have exclusive authority to decide whether an issue submitted for its
decision is within its competence as defined by law.” (Principle 3)
4. “There shall not be any inappropriate or unwarranted interference with
the judicial process” and judicial decisions by the courts shall be subject
only to “judicial review” (or to mitigation or commutation by competent
authorities of sentences imposed by the judiciary, in accordance with the
law). (Principle 4)
5. “Everyone shall have the right to be tried by ordinary courts or tribunals
using established legal procedures” and, accordingly, “tribunals that do not
use the duly established procedures . . . shall not be created” to displace the
jurisdiction normally belonging to the ordinary courts. (Principle 5)
4 E.g., Case of the Constitutional Court v. Peru [2001] IACtHR, Ser. C No. 71, para. 73; Case of
López Lone et al. v. Honduras [2015] IACtHR, Ser. C No. 302, para. 170. See also IACHR, “Guarantees
for the independence of justice operators. Towards strengthening access to justice and the rule of law
in the Americas,” OAS/Ser.L/V/II. Doc. 445, December 2013, <http://www.oas.org/es/cidh/defenso
res/docs/pdf/Operadores-de-Justicia-2013.pdf> (English version <https://www.oas.org/es/cidh/def
ensores/docs/pdf/justice-operators-2013.pdf>) (accessed February 5, 2022). “Basic Principles on the
Independence of the Judiciary,” Adopted by the Seventh United Nations Congress on the Prevention
of Crime and the Treatment of Offenders held at Milan from August 26 to September 6, 1985 and
endorsed by General Assembly Resolutions 40/32 of November 29, 1985 and 40/146 of December
13, 1985, <https://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx>
6. “The principle of the independence of the judiciary entitles and requires

the judiciary to ensure that judicial proceedings are conducted fairly and
that the rights of the parties are respected.” (Principle 6)
7. “It is the duty of each Member State to provide adequate resources to en-
able the judiciary to properly perform its functions.”
In addition to these initial principles, the Basic Principles document also

mentions principles relative to: freedom of expression and association (Principles
8 and 9), qualifications, selection, and training (Principle 10), conditions of
service and tenure (Principles 11 to 14), professional secrecy and immunity
(Principles 15 and 16), and discipline, suspension, and removal (Principles 17
to 20).
Judicial independence has two dimensions: (i) institutional or objective,
relating to the judicial system as an organ of the State under the separation of
powers; and (ii) individual or subjective, relating to the judge as a member of
the judiciary. However, ultimately, judicial independence requires that “neither
the judiciary nor the judges who compose it be subordinate to the other public
powers.”5 In this sense, the Inter-American Court has affirmed that these two
dimensions have the objective of protecting “the Judicial System in general and
its members in particular, from finding themselves subjected to possible undue
limitations in the exercise of their functions, by bodies alien to the Judiciary . . .”6
The Inter-American Court has made an important clarification by affirming that
the right of any person as enshrined in Article 8.1 of the American Convention
to protection or to be judged by an independent judge must be analyzed not
only with regard to the dimension of the defendant but also with regard to the
dimension of the judge, who must enjoy the guarantees that make judicial in-
dependence possible. The latter dimension must be analyzed in the light of the
treaty rights of the judge as holder of the guarantees of judicial independence, in-
cluding cases in which a State decision arbitrarily affects the irremovability and
stability of the judge.7 To sum up, the Inter-American Court has established that
5 International Principles on the Independence and Accountability of Judges, Lawyers and
Prosecutors, Practitioners Guide No. 1, International Commission of Jurists (Geneva, 2007), 21,
<https://www.icj.org/wp-content/uploads/2012/04/International-Principles-on-the-Indep ende
nce-and-Accountability-of-Judges-Lawyers-and-Procecutors-No.1-Practitioners-Guide-2009-Eng.
pdf> (accessed February 5, 2022).
6 Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela [2008]
IACtHR, Ser. C No. 182, para. 55. Similarly: Case of Reverón Trujillo v. Venezuela [2009] IACtHR,
Ser. C No. 197, para. 67; Case of Chocrón Chocrón v. Venezuela [2011] Ser. C No. 227, para. 97; Case of
Atala Riffo and Daughters v. Chile [2012] IACtHR, Ser. C No. 239, para. 186; Case of the Constitutional
Tribunal (Camba Campos et al.) v. Ecuador [2013] IACtHR, Ser. C No. 268, para. 188.
7 Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador [2013] IACtHR, Ser. C
No. 266, para. 153. Similarly: IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.)
v. Ecuador (n. 6), paras. 191 and 197.
judicial independence is an essential judicial guarantee of due process of which

the judge is the holder and in which regard the judge has the right to have the
State respect his or her stability in office. This guarantee also includes the sub-
jective right of the judge for any removal of the judge from office to be based on
expressly established grounds and via due process or, if applicable, because the
term of the judge’s mandate has come to an end. This means that when the State
arbitrarily violates the tenure of a judge, it not only violates judicial indepen-
dence as enshrined in Article 8.1 of the American Convention but also violates
the right of a citizen to access to and continuity of the public service of their
country under general conditions of equality as established in Article 23.1 of the
American Convention.8
3. Facets of the Independence of Judges
The facets forming an integral part of the independence of judges are as

follows: the process of selecting and appointing judges, guarantees against ex-
ternal pressures, the principle of irremovability, and the system for sanctioning
and removing judges from office.
3.1. The Process of Selecting and Appointing Judges
In accordance with Basic Principle 10, persons selected for judicial office shall be
“individuals of integrity and ability with appropriate training or qualifications
in law.” Any method of judicial selection shall “safeguard against judicial
appointments for improper motives,” and there shall be no discrimination.
Following this principle, the Inter-American Court has maintained that States
must, when establishing procedures for appointing judges, take into account
the fact that not just any procedure satisfies the conditions demanded by the
Convention for the adequate implementation of a truly independent regimen,
particularly if basic parameters of objectivity and reasonability are not respected
and if the procedures are left open to a high level of discretionary consideration
that does not necessarily enable the selection of the most suitable candidates.9
At the same time, the Inter-American Court has declared that judges must be
selected exclusively based on their personal merits and professional qualifications,
ensuring equal opportunities in the access to the judicial power.10
8 IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (n. 6), para. 199.
9 IACtHR, Case of Reverón Trujillo v. Venezuela (n. 6), para. 74.
10 Ibid., para. 72.
In this sense, the procedures for appointing judges must guarantee equal
opportunities by means of an open competition so that any citizen who can prove
it complies with the requirements determined in law may participate. This open
competition in the selection process excludes any arbitrary inequality and may
not include any privileges or advantages with regard, for example, to those provi-
sionally occupying the office.11
3.2. The Political Right of Access to and Permanence in the

Office of Judge under Equal Conditions
Open competition in the procedures for appointing judges under general

conditions of equality through reasonable and objective means also shapes
the political right of all citizens, recognized in Article 23.1c of the American
Convention, “to have access, under general conditions of equality, to the public
services of his country.”
There is also another aspect to this right: the right of a judge to remain in the
public office to which he or she was appointed under conditions of equality.
Thus, if a judge is improperly dismissed for belonging to a certain group, this
constitutes arbitrary unequal treatment with regard to the right to remain in office
in conditions of equality (art. 23.1.c, ACHR) and if, in turn, the judge in question
is not reinstated, in conditions of equality, to the exercise of public functions (as
a judge), this shall also constitute a violation of the right recognized in Article
23.1.c of the American Convention.
In this regard, the Inter-American Court has confirmed the following:
138. According to the State’s arguments, Article 23(1)c of the American

Convention does not include the protection of the right to remain in the
exercise of public service. In this sense, the Court points out that in the case of
Apitz Barbera et al., this Tribunal stated that Article 23(1)c does not establish
the right to access a public position, but to do so in “general conditions of
equality”. This means that the respect and guarantee of this right are fulfilled
when “the criteria and procedures for the appointment, promotion,
suspension and dismissal [are] reasonable and objective” and when “the
people are not object of discrimination” in the exercise of this right. Likewise,
the Human Rights Committee has interpreted that the guarantee of protection
covers both the access and the continuance in equal conditions and non-
discrimination with regard to the suspension and dismissal procedures. As
observed, the access in equal conditions would constitute an insufficient
11 Ibid., para. 73.

guarantee if it were not accompanied by the effective protection of the

continuance in what is accessed.
[...]
140. [ . . . ]In synthesis, the Court observes that a titular judge, under
circumstances of an annulled dismissal similar to that of Mrs. Reverón Trujillo
could have been reinstated. On the contrary, in the present case, since it is a
provisional judge, under the same factual assumptions, the reinstatement was
not ordered.
141. This difference in the treatment of titular judges that enjoy a full
guarantee of tenure and provisional ones who do not have any protection
by that guarantee within the context of continuance that corresponds to
them, does not respond to a reasonable criterion (supra para. 138) pursuant
to the Convention (supra paras. 114 through 117 and 121). Therefore, the
Tribunal concludes that Mrs. Reverón Trujillo suffered an arbitrary unequal
treatment regarding the right to remain, under equal conditions, in the
exercise of public service, which constitutes a violation of Article 23(1)(c)
of the American Convention in connection to the obligations of respect and
guarantee established in Article 1(1) of the same.12 (Emphasis added by the
author.)
In conclusion, when the permanence of judges in office is arbitrarily affected,

the “right to judicial independence established in Article 8(1) of the American
Convention is violated, in conjunction with the right of access to and perma-
nence in public service, under general conditions of equality, established in
Article 23(1)(c) of the American Convention.”13 This occurs, in the opinion of
the Inter-American Court, not only in cases of the arbitrary removal of judges by
judicial or disciplinary authorities but also in cases of the removal or dismissal
of judges or magistrates as a result of impeachment proceedings in parliamen-
tary instances if these are carried out arbitrarily in violation of the minimum
guarantees of due process as established in Article 8 of the American Convention:
3.4. Conclusion of the Court on judicial guarantees and political rights

222. Consequently, the Court declares the violation of Article 8(1), and
the pertinent parts of Article 8(2) and 8(4), in relation to Article 1(1) of
the American Convention, owing to the arbitrary termination and the
impeachment proceedings that occurred, facts that gave rise to the violation
of judicial guarantees to the detriment of the eight victims in this case.
Furthermore, the Court declares the violation of Article 8(1), in relation to
12 Ibid., paras. 138, 140, and 141.

Article 23(1)(c) and Article 1(1) of the American Convention, owing to the
arbitrary effects on tenure in the exercise of the judicial function and the
consequent harm to judicial independence and the guarantee of impartiality,
to the detriment of the eight victims in this case.14 (Emphasis added by the
author.)
3.3. Guarantees against External Pressures: The Principle

of Irremovability
The guarantee against external pressures is an essential element of the indepen-

dence of judges and tribunals. Judges must enjoy the conditions necessary to
hear, process, substantiate, decide upon, and execute cases freely, so without fear
of suffering consequences for their actions. A judge who has been threatened or
who has a justified fear of suffering reprisals in their position as a judge if he or
she does not reach a certain decision is not a free or independent judge. Judges
must be capable of resolving cases in accordance with the facts on record and on
the basis of their reasoning in accordance with the law. Consequently, external
pressures executed by political and governmental authorities against a judge and
threats—including threats by judicial authorities of suspension or removal from
office if a judge does not reach a certain decision—constitute a violation of the
principles of judicial independence and impartiality.
In this regard, the Inter-American Court has invoked the Basic Principles,
which state that the judges will decide the matters brought before them “on
the basis of facts and in accordance with the law, without any restrictions, im-
proper influences, inducements, pressures, threats or interferences, direct or in-
direct, from any quarter or for any reason” (Principle 2), and that the judiciary
“shall have jurisdiction over all issues of a judicial nature and shall have exclu-
sive authority to decide whether an issue submitted for its decision is within its
competence as defined by law” (Principle 3), and that “[t]‌here shall not be any
inappropriate or unwarranted interference with the judicial process” (Principle
4). The Court reached the conclusion that these guarantees reinforce the stability
of the judges in their position in seeking to guarantee their independence with
regard to the parties, society, and the State.15
15 IACtHR, Case of Reverón Trujillo v. Venezuela (n. 6), para. 80. Similarly: IACtHR, Case of
Chocrón Chocrón v. Venezuela (n. 6), para. 100; IACtHR, Case of Atala Riffo and Daughters v. Chile (n.
6), para. 186; IACtHR, Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (n. 7),
para. 146; and IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (n. 6),
para. 190.
Otherwise, if the irremovability of judges did not exist as a guarantee against

external pressures, the States could remove judges and intervene in judicial
power, bringing about a fear of being arbitrarily dismissed in other judges, and
thus encouraging those judges to obey their instructions or refrain from chal-
lenging the appointing and sanctioning bodies.
Pressures exerted by political, economic, and social groups might also con-
stitute external pressures in this sense, depending on their weight and impor-
tance. However, this is not the case if these pressures are manifestations of
critical ideas or opinions as part of the legitimate exercise of freedom of expres-
sion. In this regard, the quotation made by the Inter-American Court in the case
of Apitz Barbera et al. of the statement by Mr. Param Cumaraswamy (former
Special Rapporteur of the United Nations on the Independence of Judges and
Lawyers, between 1994 and 2003) is relevant. In his capacity as an expert wit-
ness proposed by the Commission in the case in question, Cumaraswamy con-
firmed that “[w]‌hile constructive public criticism of judgments or decisions in
temperate language would be permissible even from political forces, when such
criticism is couched in virulent, intemperate, threatening, and intimidating lan-
guage and in bad faith, it will be considered a threat or interference with judicial
independence.”16
In conclusion, a judge must be free to decide upon a dispute in accordance
with the law and his or her reasoning and legal awareness without fearing
any kind of reprisal. Thus, the Inter-American Court has called attention to
statements of public officials, particularly the top government authorities, which
might constitute a form of interference with or pressure impairing judicial in-
dependence or that might induce or invite other authorities to engage in activ-
ities that may abridge the judge’s independence or affect the judge’s freedom of
action.17 The irremovability of judges therefore protects judicial independence,
consisting of the following guarantees: continuance in the position, an adequate
promotions process, and no unjustified dismissals or free removal. This means
that if the State does not comply with one of these guarantees of irremovability, it
violates its obligation to respect and guarantee judicial independence.18 On the
other hand, as we have seen, judicial independence transcends the individual
dimension of the person of the judge and extends to the whole of society and to
its institutional dimension as an essential element of the rule of law and democ-
racy. Thus, there is a direct relationship between judicial independence and the
16 IACtHR, Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela (n.
6), footnotes 59 and 157.

right of judges to accede to and remain in their posts under general conditions of
equality, as an expression of their guarantee of tenure.19
4. The Stability and Exceptional Nature

of Provisional Judges
In some countries for reasons of necessity and in others for reasons of reckless
political expediency, provisional judges are appointed. These may also be called
temporary, interim, acting, substitute judges, and the like. Some of the States
appointing judges of this kind have attempted to claim that there is no need to
comply with any procedures or objective merit requirements for such provi-
sional judges and that they are appointed “discretionally.” But what is worse is
that at least some of these States have also claimed that such provisional judges
do not have any stability or, consequently, irremovability and that, as a result,
they may be removed discretionally without any cause or procedure and, further,
without any right to effective judicial recourse. In other words, they are freely ap-
pointed judges subject to discretionary removal.
It is not possible to conceive a judge without independence guarantees. Thus,
even though it is not possible to equate the position of a permanent judge to
that of a provisional one, even in the case of the latter, the irremovability of the
judge is closely linked to the guarantee against external pressures. Indeed, if pro-
visional judges do not have the security of permanence for a determined period,
they are vulnerable to pressures from various sectors, primarily those that have
the ability to decide upon dismissals or promotions within the judiciary.
As we saw previously, the appointment of judges must be governed by objec-
tive conditions that ensure the success of the best qualified candidates under gen-
eral conditions of equality. Therefore, appointments of provisional judges must
also be guaranteed to comply with these requirements through measures that
are adapted to the special characteristics of such judges. Moreover, once provi-
sional judges have been suitably appointed, they must enjoy the same minimum
guarantees of stability as permanent judges. In the words of the Inter-American
Court, the States must guarantee that provisional judges benefit from a suitable
procedure for their appointment and a certain irremovability with regard to their
position. This appropriate stability and irremovability of provisional judges is
subject to a dissolving condition such as the completion of a predetermined term
or the observance and conclusion of a public competitive tender governed by
the principles of objectivity, transparency, and publicity. Therefore, provisional
19 IACtHR, Case of López Lone et al. v. Honduras (n. 4), para. 194.
judges must enjoy all of the benefits characteristic of continuance until the
dissolving condition that puts a legal end to their term of office occurs.20
A different situation might arise in the light of appointments that are openly
irregular due to a violation of the rule of law and democracy on the part of a dic-
tatorship or authoritarian regime with the aim of politically controlling the judi-
ciary and suppressing society using party agents or a political movement.
In any case, it is important to stress that since provisional judges constitute
significant obstacles to judicial independence, they must be an exception in two
senses: both with respect to duration and with respect to the rule of judges in a
country. In this sense, even if there are duly justified reasons for the appoint-
ment of provisional judges, this situation must be temporary, so it must last for
the least time necessary to enable the regularization of normality with regard
to judges. At the same time, the general rule with regard to judges in a country
must be the appointment of permanent judges, and the appointment of a group
of provisional judges must take place only as a justified exception that is limited
in time.21
Lastly, as we have seen in the cases of Reverón Trujillo and Chocrón Chocrón,
the Inter-American Court has confirmed that the exceptional nature of judges
with a provisional character is a requirement for such judges to be compatible
with the right of access to public service under conditions of equality. Thus, the
Court has insisted on indicating the importance of the right of judges to remain in
office on general terms of equality in accordance with Article 23(1)(c) of the ACHR
since “the guarantee of stability or tenure of the judge is related to the right to re-
main in public office, on general terms of equality.”22
5. The Exercising of Other Rights by Judges: Freedom

of Expression and the Right to Association
One important element of the guarantees of the independence of judges in a

democratic society is freedom of expression. This is defined in the Inter-American
Democratic Charter (IADC) as one of the essential components of the exercise of
democracy.23 With regard to judges, the Basic Principles invoked by the Inter-
American Court in its jurisprudence establish that “members of the judiciary
are like other citizens entitled to freedom of expression, belief, association and
assembly; provided, however, that in exercising such rights, judges shall always
20 IACtHR, Case of Reverón Trujillo v. Venezuela (n. 6), paras. 116 and 117. Similarly: IACtHR,
Case of Chocrón Chocrón v. Venezuela (n. 6), para. 106.

Chocrón Chocrón v. Venezuela (n. 6), para. 107.

23 Art. 4, IADC.
conduct themselves in such a manner as to preserve the dignity of their office

and the impartiality and independence of the judiciary” (Principle 8).24
Freedom of expression, recognized in Article 13 of the American Convention,
has been broadly developed in the jurisprudence of the Inter-American Court
as a cornerstone for the existence of a democratic society, both in its individual
dimension, regarding who has the right to seek, receive, and disseminate infor-
mation and opinions of all kinds without prior censorship, and in its social di-
mension, in relation to the collective right of society to receive information and
opinions of all kind without prior censorship.25
Even if these rights are not absolute and are subject to restrictions, the Court
has established in its jurisprudence that a right can be restricted only as long
as any interference is not abusive or arbitrary, and such interference must
therefore: (i) be enacted by law; (ii) serve a legitimate purpose; and (iii) meet
the requirements of suitability, necessity, and proportionality.26 Owing to their
functions in the administration of justice, under normal conditions of the rule
of law, judges may be “subject to different restrictions, and in different ways, that
would not affect other individuals, including other public officials.”27 Thus, in
accordance with these principles, the aim of protecting the independence and
impartiality of justice as a right or freedom of others can justify “the restriction of
certain conduct by judges.”28 In any case, “the power of the State to regulate or re-
strict these rights is not discretionary and any limitation of the rights recognized
in the Convention must be interpreted restrictively.”29
Notwithstanding even legitimate restrictions upon freedom of expression
to which a judge might be subjected in normal conditions, in certain excep-
tional circumstances, the scope of this freedom is wider. The Inter-American
Court, citing the Bangalore Principles of Judicial Conduct, has confirmed that
there may be situations in which a judge, as a citizen who is a member of so-
ciety, considers that he or she has a moral duty to speak out.30 In this respect, in
25 Cf. IACtHR Cuadernillo de Jurisprudencia de la Corte Interamericana de Derechos Humanos N°
16: Libertad de Pensamiento y de Expresión, <https://www.corteidh.or.cr/sitios/libros/todos/docs/
cuadernillo16.pdf> (accessed February 5, 2022).
26 Cf. IACtHR, “The word ‘Laws’ in Article 30 of the American Convention on Human Rights”
[1986] Advisory Opinion OC-6/86, paras. 35 and 37, and Case of Artavia Murillo et al. (“In Vitro
Fertilization”) v. Costa Rica [2012] IACtHR, Ser. C No. 257, para. 273. See also the following on the
right to the freedom of speech: Case of Herrera Ulloa v. Costa Rica [2004] IACtHR, Ser. C No. 107,
para. 120; Case of Fontevecchia and D’Amico v. Argentina. Merits, Reparations, and Costs. Judgment of
November 29, 2011, Ser. C No. 238, para. 43; and Case of Mémoli v. Argentina. Preliminary Objections,
Merits, Reparations, and Costs. Judgment of August 22, 2013, Ser. C No. 265, para. 127, cited in the
judgment of IACtHR, Case of López Lone et al. v. Honduras (n. 4), para. 168.
30 Cf. United Nations, “Commentary on the Bangalore Principles of Judicial Conduct,” compiled
by the UN Office on Drugs and Crime (2013), paras. 65 and 140. In this respect, the Ibero-American
the Case of López Lone et al., the IACtHR cited among the bases for its decision
the statement of Leandro Despouy (former Special Rapporteur of the United
Nations on the Independence of Judges and Lawyers, 2003–2009), an expert wit-
ness in this case, who indicated that it may constitute an obligation for judges to
speak out “in a context in which democracy is being impaired, because they are
the public officials[,]‌specifically the judicial agents, who are the guardians of
the basic rights, in the face of abuses of power by other public officials or other
power groups.”31 In the said case, the Inter-American Court concluded that “at
times of grave democratic crises, as in this case, the norms that normally restrict
the rights of judges to participate in politics are not applicable to their actions in
defence of the democratic order,” citing their rights as citizens to take part in pol-
itics, to freedom of expression, to the right of assembly and to protest.32
The preceding principles and guidelines for jurisprudential interpretation
are also applicable to the freedom of association of judges. In this regard, the
Basic Principles state that judges enjoy the right “to form and join associations
of judges or other organizations to represent their interests, to promote their
professional training and to protect their judicial independence” (Principle 9).
This right implies an international obligation upon the States to guarantee the
conditions necessary to allow the right to be exercised and, at the same time, to
refrain from imposing obstacles or illegitimate restrictions upon this right.
Associations of judges have various legitimate ends, including those relating
to the promotion of the values and principles of the judiciary, the rule of law, de-
mocracy and human rights, the training of judicial personnel, the fight for digni-
fied conditions in the exercise of judicial function, and other similar ones. Thus,
these associations of judges normally need to be composed of active judges,
so judges who are currently exercising their functions. In other words, in such
cases, the judges are exercising their right to association in their very capacity
as judges. This means that once they are no longer judges, they are generally no
longer active members of these associations, and they therefore also cease to ex-
ercise this right of the association of judges.
Consequently, the Inter-American Court has maintained that the arbitrary
dismissal of a judge who is a member of an association of judges which, as such,
also brings about an end to the judge’s exercising of his or her condition as a
member of the association in question also constitutes “an undue restriction of
Code of Judicial Ethics establishes that “[t]‌he judge has the right and the duty to denounce any at-
tempt at disruption of his/her independence.” Ibero-American Code of Judicial Ethics 2006,
Article 6, <https://www.poderjudicial.es/cgpj/en/CIEJ/Ibero-American-Code-of-Judicial-Ethics/>
the right to freedom of association,” in violation of Article 16 of the American

Convention.”33
6. The Disciplinary System and the System for Removing

Judges from Office
As we saw previously, stability as an essential guarantee of judicial independence

entails the principle of the stability of judges and their consequent inviolability.
Even if this principle is not absolute, it is subject to a series of guarantees and
requirements. As a general principle, during their time in office, judges may not
be removed or dismissed unless the following prerequisites are met: (i) previ-
ously established statutory grounds in accordance with the principles of deter-
mination of criminality (“tipicidad”) and proportionality; (ii) a prior process
that respects the guarantees of due process and defense; and (iii) the right to ef-
fective judicial recourse before competent, impartial, and independent judges
and tribunals.
This gives rise to a need to conduct a high scrutiny test or rigorous exami-
nation of cases and procedures through which judges are removed from office,
whether these procedures be disciplinary or of another kind.
Based on the cited Principles 17 and 18 as invoked by the Inter-American
Court and on the interpretations of the Human Rights Committee of the United
Nations in General Comment 32, the IACtHR has confirmed that judges may
be dismissed only for “conduct that is clearly unacceptable” and for “reasons of
serious misconduct or incompetence.”34 Thus, the possibility of dismissal must
abide by the “principle of extreme gravity” given that the protection of judicial in-
dependence requires that the dismissal of judges “be considered as the la ultima
ratio in judicial disciplinary matters.”35 In this regard, judges may be removed
only “for serious disciplinary offenses or incompetence, and by proceedings with
due guarantees or when their term of office has ended.” This means that dismissal
“cannot be an arbitrary measure, and must be analysed in light of the existing do-
mestic framework and the circumstances of the specific case.”36
Further, the Court has considered that, “based on the guarantee of judicial tenure,
the grounds for removing judges from their posts must be clear and established by
law.” Thus, considering that “dismissal or removal from office is the most restrictive

34 IACtHR, Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (n. 7), para. 147.
Similarly: IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (n. 6), para.
191; IACtHR, Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (n. 7), para. 198;
and Case of López Lone et al. v. Honduras (n. 4), paras. 196, 198, 199, and 259.
and severe disciplinary measure that can be adopted, the possibility of its application
must be predictable, either because the punishable conduct is expressly and clearly
established, precisely, clearly and previously, by law, or because the law delegates its
imposition to the judge or to an infra-legal norm, under objective criteria that limit
the scope of discretion.”37
Likewise, citing the Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa,38 the Court has referred specifically to the inadmissibility
of removing judges from office only because their decisions have been overturned
or even because they have been subjected to other disciplinary or administrative
procedures solely because a decision made by them has been reversed on appeal or
upon review by a higher judicial body.39
The IACtHR has developed the differences between the various sanctions appli-
cable to judges depending on the gravity of the offense, citing other international
standards such as those contained in Principle VI of the Recommendation of the
Council of Europe on the Independence, Efficiency and Role of Judges.40 Based
on the principles and authoritative interpretations invoked by the Inter-American
Court, the IACtHR has maintained that dismissal, as the maximum penalty, must
be the result of “serious misconduct,” whereas “other sanctions” that are less serious
may be considered in the event of “negligence or incompetence.”41
In the case of sanctions applied to judges, and particularly dismissals, the
authority in charge must “act independently and impartially in the proceed-
ings established for that effect and allow the exercise of a right to a defence.”42
Furthermore, the Court considers that for an investigation of a complaint against
a judge to be effective, “those responsible for it must be independent, from a
38 The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, adopted
as part of the African Commission’s activity report at second summit and meeting of heads of
State of AU held in Maputo from July 4–12, 2003, Principle A, Article 4, Clause n (2), published in
International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors
(2007), 213 to 223, <https://www.icj.org/wp-content/uploads/2012/04/International-Principles-on-
the-Independence-and-Accountability-of-Judges-Lawyers-and-Procecutors-No.1-Practitioners-
Guide-2009-Eng.pdf> (accessed February 5, 2022).
39 IACtHR Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (n. 7), para,
149. Similarly: IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (n. 6),
para, 193.
40 Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the
Independence, Efficiency and Role of Judges (adopted by the Committee of Ministers on October 13,
1994, at the 518th Meeting of the Ministers’ Deputies), <https://www.euromed-justice.eu/en/system/
files/20090123125232_recR%2894%2912e.pdf> (accessed February 5, 2022).
41 IACtHR, Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (n. 7), para.
paras. 191 and 192.
Chocrón Chocrón v. Venezuela (n. 6), para. 99; IACtHR, Case of the Constitutional Tribunal (Camba
Campos et al.) v. Ecuador (n. 6), para. 189; and Case of López Lone et al. v. Honduras (n. 4), para. 196.
hierarchical and institutional point of view and also in the practice, from the
individuals implicated in the events investigated.”43
In accordance with the standards developed by the Inter-American Court, the
IACtHR has fully rejected the free or arbitrary removal of judges (including pro-
visional judges), since this violates judicial independence seeing that it foments
an objective doubt regarding the “effective possibility they may have to decide
specific controversies without fearing the retaliation.”44 Thus, the Court has
endorsed the guarantees of judicial independence in the institutional and subjec-
tive sense in relation to the principle of the inviolability of tenure, confirming the
following strict prerequisites of the disciplinary or punitive system for judges: (i)
previously established statutory grounds in accordance with the principles of de-
termination of criminality (“tipicidad”) and proportionality; (ii) a prior process
that respects the guarantees of due process and defense; and (iii) the right to ef-
fective judicial recourse before competent, impartial, and independent judges
and tribunals. Therefore, when judicial independence is affected, it is not only
a case of the guarantees of due process recognized in Article 8 of the American
Convention and the right to access and remain in public office, on general terms
of equality, as established in Article 23(1)(c) of the American Convention being
violated with regard to the judge; in addition, the right to effective judicial pro-
tection as recognized in Article 25 of the Convention is also affected, with re-
gard to the parties subject to trial and certainly with regard to the actual judge.45
Lastly, the Inter-American Court, invoking its precedent in the Case of Uzcátegui
et al., has indicated that criminal proceedings can have “an intimidating or
inhibiting effect” on the exercise of freedom of expression, “contrary to the State’s
obligation to guarantee the free and full exercise of this right in a democratic
society,”46 and has stated that the application of this consideration depends on
the specific facts of each case.47 Further, despite the fact that the case under con-
sideration did not involve criminal proceedings, the Court has considered that
“the mere fact of instituting disciplinary proceedings against the judges and the
43 Case of Gutiérrez and Family v. Argentina [2013] IACtHR, Ser. C No. 271, para. 120.
Chocrón Chocrón v. Venezuela (n. 6), para. 99; IACtHR, Case of the Constitutional Tribunal (Camba
Campos et al.) v. Ecuador (n. 6), para. 189; and Case of López Lone et al. v. Honduras (n. 4), para. 196.
45 IACtHR, Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (n. 7), para.
para. 191; Case of López Lone et al. v. Honduras (n. 4), para. 200; and Case of Valencia Hinojosa et al.
v. Ecuador [2016] IACtHR, Ser. C No. 327, para. 105.
46 Case of Uzcátegui et al. v. Venezuela [2012] IACtHR, Ser. C No. 249, para. 189, cited in Case of
López Lone et al. v. Honduras (n. 4), para. 176.

47 As an example, the IACtHR mentioned that in the Case of Uzcátegui et al., criminal proceed-
ings were taking place against Mr. Uzcátegui and the person who filed suit held a high position
(Commander General of the Armed Police Forces of the State of Falcón) and that there was a con-
text of violence in which the victim had been subject to threats, harassment, and unlawful arrest.
Cf. IACtHR, Case of Uzcátegui et al. v. Venezuela (n. 46), para. 189, cited in Case of López Lone et al.
v. Honduras (n. 4), para. 176.
justice based on their actions against the coup d’etat and in favor of the rule of
law could have had this intimidating effect and, therefore, constituted an undue
restriction of their rights.”48
7. Brief Reference to Impeachment Proceedings

against Judges
In some countries, the removal or dismissal of judges (magistrates or ministers)

of high courts such as a supreme court of justice or constitutional tribunals or
courts is the responsibility of the legislative body (parliament or congress), which
acts through the process of impeachment. However, this process, despite taking
place within the seat of political power, must still be governed by the general
principles and guarantees of judicial independence, namely, legal cause, compe-
tence, due process, and the right to effective judicial recourse.
The Inter-American Court has had opportunity on two occasions to pro-
nounce upon the use of impeachment proceedings for the dismissal of judges.
By coincidence, both of these cases relate to the judges of constitutional courts.
In the case of the Constitutional Court of Peru, the IACtHR established the fol-
lowing criteria, confirmed in the case of the Constitutional Court of Ecuador, in
relation to the judicial guarantees applicable to impeachment proceedings in
general and, in particular, to impeachment proceedings against judges:
1. The exercising of the State’s sanctioning power must be carried out in full
compliance with the legal order, which includes respecting the minimum
guarantees of due process in accordance with the requirements established
in the American Convention.
2. The application of Article 8 of the American Convention relating to judi-
cial guarantees (“Right to a Fair Trial” in the English version) is not limited
to judicial recourse in the strictest sense; instead, it relates to “the proce-
dural requirements that should be observed in order to be able to speak of
effective and appropriate judicial guarantees so that a person may defend
himself adequately in the face of any kind of act of the State that affects his
rights.”
3. The list of minimum guarantees established in Article 8 Para. 2 of the
Convention also applies to the determination of rights and obligations of a
civil, labor, fiscal, or any other nature and, therefore, “in this type of matter,
the individual also has the overall right to the due process applicable in
criminal matters.”
4. The provision of the Convention proclaiming the right of a person to be

heard by a competent judge or tribunal to determine their rights (Article
8.1) refers to “any public authority, whether administrative, legislative, or
judicial, which, through its decisions determines individual rights and
obligations.” Thus, “any State organ that exercises functions of a materially
jurisdictional nature has the obligation to adopt decisions that are in con-
sonance with the guarantees of due legal process in the terms of Article 8 of
the American Convention.”
5. The independence of any judge requires an appropriate appointment
process with a fixed term in the position and a guarantee against external
pressures. This means that “under the rule of law, the independence of all
judges and, in particular, that of constitutional judges, must be guaranteed
owing to the nature of the matters submitted to their consideration.”
6. Regarding the exercise of the authority of Congress to conduct impeach-
ment proceedings, which engages the responsibility of a public official,
the Court believes that “it should be recalled that any person subject to a
proceeding of any nature before an organ of the State must be guaranteed
that this organ is competent, independent and impartial and that it acts in
accordance with the procedure established by law for hearing and deciding
the case submitted to it.”49
In relation to the right of judges as per Article 8.1 of the American Convention
to a hearing and to exercise the right to defense in impeachment proceedings or
sanctioning processes in the parliamentary context, the Inter-American Court
has reiterated that the guarantees established in Article 8 of the Convention pre-
sume that “the victims should have extensive possibilities of being heard and
acting in the respective proceedings so that they may submit their claims and
present probative elements, and that these are analyzed completely and rigor-
ously by the authorities before a decision is taken on the facts, responsibilities,
sanctions, and reparations.”50
Based on the application of the preceding principles and guarantees of due
process applicable to impeachment proceedings against judges, the Inter-
American Court concluded in the Case of the Constitutional Court of Peru
that the State had violated the right to a fair trial embodied in Article 8 of the
American Convention with regard to the magistrates (Manuel Aguirre Roca,
49 IACtHR, Case of the Constitutional Court v. Peru (n. 4), paras. 68 to 71, 75, and 77; confirmed in
IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (n. 6), para. 166.
50 IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (n. 6), para.
181. The first part of the citation of the court, “The victims should have extensive possibilities of
being heard and acting in the respective proceedings,” was first expressed in IACtHR, Case of the
Constitutional Court v. Peru (n. 4), IACtHR, para. 81.
Guillermo Rey Terry y Delia Revoredo Marsano) since “the impeachment

proceeding to which the dismissed justices were submitted did not ensure them
guarantees of due legal process and did not comply with the requirement of the im-
partiality of the judge.” In addition, the Court observes that, in the context of this
specific case, the Legislature did not have the necessary conditions of independence
and impartiality to conduct the impeachment proceeding against the three justices
of the Constitutional Court.”51 (Emphasis added by the author.)
Similarly, in the Case of the Constitutional Tribunal of Ecuador, the Inter-
American Court concluded that the judges (members) of the said Tribunal: (i)
were not notified in the first proceeding conducted by Congress in order to de-
termine the termination of their positions and were not able to respond to the
charges that were being made against them, given that it was necessary that their
possibility of being heard was guaranteed in relation to the alleged irregularities
in their appointment; and that (ii) in the subsequent impeachment trial
conducted against them by Congress, which was a new proceeding, the judges
were not notified of the new parliamentary session and had no opportunity to
exercise their right of defense in order to intervene in this proceeding and to be
heard.52
8. Some Consequences of the Violation

of Judicial Independence
Failure to respect the guarantees of judicial independence, specifically through

the arbitrary removal or dismissal of a judge, violates various provisions of the
American Convention, including the guarantees of due process, the right to ac-
cess and remain in public office on general terms of equality, and the right to
effective judicial protection as recognized in Articles 9, 23(1)(c), and (25) of the
Convention.
The victim of any such violation of judicial independence is the judge; but in
addition, depending on the circumstances, the parties subject to trial may also
be victims of the violation of judicial independence: the plaintiffs, defendants,
accused, and victims of the violation of human rights. All the victims of the vi-
olation of the right to judicial independence must be fully compensated for the
damages suffered.
51 IACtHR, Case of the Constitutional Court v. Peru (n. 4), paras. 84 and 85.
52 IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (n. 6), paras. 183,
187, and 222.
8.1. Full Reparation for Judges: Reinstatement and the Payment

of Damages
Judges who have been the victims of arbitrary removal or dismissal from office have
the right to be protected in domestic law through effective judicial recourse be-
fore competent, independent, and impartial judges with regard to the acts through
which their judicial guarantees were violated, including their guarantee of judicial
independence as recognized in Article 8 of the American Convention. For this pro-
tection, the judges have the right to simple and prompt recourse or any other effec-
tive recourse as enshrined in Article 25 of the Convention. In this regard, the Basic
Principles establish that decisions in disciplinary, suspension, or removal proceed-
ings relating to the office of judges should be “subject to an independent review”
(Principle 20).
If the appeal is upheld, the judge must be protected and fully compensated, in-
cluding being reinstated to the position of which he or she was arbitrarily deprived.
In other words, this effective protection must enable the judge to again exercise his
or her office due to the principle of irremovability. This means that the upholding of
a judiciary appeal against the arbitrary dismissal of a judge must necessarily lead to
the reinstatement of that judge to his or her office in addition to further compensa-
tion for material and moral damages caused.53
Nonetheless, in accordance with the rule established in the American Convention
and once domestic recourses have been exhausted without full reparation having
been obtained, a judge who has been subject to arbitrary removal or dismissal may
appeal to the IACHR and, in turn, subsequently to the IACtHR, in order to obtain
international protection for his or her violated treaty rights.
As we have seen, the Inter-American Court has had opportunity to become fa-
miliar with and decide upon various cases relating to the arbitrary removal or dis-
missal of judges in violation of judicial independence and other guarantees of due
process and the right to effective judicial protection.
In some cases, given the arbitrary removal or dismissal suffered by the judges,
the Inter-American Court has declared the State internationally responsible for
the violation of Articles 8 and 25 with respect to the judge as the victim; fur-
ther, as of the Case of Reverón Trujillo, it declared the violation of Article 23(1)
(c) (political rights to have access, under general conditions of equality, to the
public services of the country).54 Given the specific characteristics of the Case

54 Case of the Constitutional Court v. Peru [2001] IACtHR, para. 130.1 and 2; Case of Apitz Barbera
et al. (“First Court of Administrative Disputes”) v. Venezuela [2008] IACtHR, Operative Paragraphs,
para. 267.7, 8, and 9; IACtHR, Case of Reverón Trujillo v. Venezuela (n. 6), Operative Paragraphs,
para. 209.2, 3, and 4; IACtHR, Case of Chocrón Chocrón v. Venezuela (n. 6), Operative Paragraphs,
para. 205.2 and 3; IACtHR, Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (n.
7), Operative Paragraphs, para. 284.2, 3, and 4; IACtHR, Case of the Constitutional Tribunal (Camba
of López Lone et al. with regard to the vagueness of the measures and discipli-
nary sanctions, the declaration of the judges against the coup d’etat, and the
association of judges to which they belonged, the Inter-American Court also
declared the violation of Article 9 (Freedom from Ex Post Facto Laws), Article
13.1 (Freedom of Thought and Expression), Article 15 (Right of Assembly), and
Article 16 (Freedom of Association) of the Convention.55
As of the Case of Apitz Barbera et al., as a general rule, the Inter-American
Court has provided in its sentences for the requirement, as part of full reparation,
that the State reinstate the judges, “if they so desire,” in a position in which “they
have the same salaries, related benefits, and equivalent rank as they had prior to
their removal from office.”56 This benefit, direct or in kind, must be replaced by
a compensation payment if, due to legitimate reasons, the State is unable to rein-
state the judges as required by the compensation provision.57
In cases the Inter-American Court has ascertained the “impossibility” of
reinstating the judges “in their functions as judge,” the Court has provided di-
rectly for the payment of substitutive compensation. This has occurred for
reasons associated with amendments made to the Constitution, which modi-
fied the organ (Constitutional Tribunal), the new organ (Constitutional Court)
not being equivalent in composition or powers to the previous organ,58 or if a
constitutional change has generated the subsequent restructuring of the organ
(Supreme Court of Justice) including significant modifications in aspects such as
the number of members making up the new organ (National Court of Justice),
the new number being less than the old number of members, with some of the
judges (magistrates) already having refused reinstatement.59
With regard to reparations for damaged caused, in all of the cases, the Inter-
American Court provided in its judgments for the compensation of the victims
for “pecuniary and non-pecuniary damages, and reimbursement of costs and
expenses” in accordance with the stipulated conditions for each case. The Court
included the lost salaries and related benefits not received by the judges along
Campos et al.) v. Ecuador (n. 6), Operative Paragraphs, para. 327.2, 3, and 4; and IACtHR, Case of
López Lone et al. v. Honduras (n. 4), Operative Paragraphs, para. 341.2, 3, 4, 5, 7, and 8.
55 IACtHR, Case of López Lone et al. v. Honduras (n. 4), Operative Paragraphs, para. 341.2 to
6 and 9.
IACtHR, para. 267.17.

IACtHR, Operative Paragraphs, para. 267.17. The State was given one (1) year to reinstate the ar-
bitrarily removed or dismissed judge in IACtHR, Case of Chocrón Chocrón v. Venezuela (n. 6), para.
205.7, and in IACtHR, Case of López Lone et al. v. Honduras (n. 4), paras. 298 and 341.16.
58 IACtHR, Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (n. 6), paras. 263
and 264; and Operative Paragraphs, para. 327.10.

59 IACtHR, Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (n. 7), paras.
214 and 215; and Operative Paragraphs, para. 284.10.

with other material and moral damages caused in addition to loss of profits after
dismissal.60
Other additional full reparation measures stipulated by the IACtHR have
referred to structural problems that caused the violations of the rights, such as
laws, regulations, and jurisprudence. In these cases, with the aim of making the
obligation of nonrepetition effective, the IACtHR has required the State to adopt
general measures to prevent further violations. For example, in the Venezuelan
cases relating to the fact that a majority of judges were provisional, freely ap-
pointed, and subject to discretionary removal without effective judicial recourse,
the Court required the State to remedy the situation by adopting corrective legis-
lative measures (Venezuelan Code of Judicial Ethics) and changing the jurispru-
dential policy of its Supreme Tribunal of Justice.61
8.2. Reparation for Parties Subject to Trial
Having been subjected to a “judge” without guaranteed independence, whether

as the accused, plaintiff, or victim, is not only a violation of the right to access to
justice with guarantees of due process (arts. 8 and 25 ACHR); in addition, it can
be associated with a range of serious additional violations and damages.
In light of such situations, we must ask ourselves the following: What pro-
tection can persons who have been victim to decisions made by judges who are
not independent, or who have been denied protection due to decisions made by
judges who are not independent, seek at international level?
The Case of Castillo Petruzzi et al., in which Chilean victims were tried and
convicted for treason in Peru by military courts lacking independence in viola-
tion of their right to judicial guarantee, was heard by the IACrHR. In this case,
the Inter-American Court determined that “the military tribunals that tried
the alleged victims for the crimes of treason did not meet the requirements im-
plicit in the guarantees of independence and impartiality that Article 8(1) of the
American Convention recognizes as essentials of due process of law.”62 (Emphasis
IACtHR, Operative Paragraphs, para. 267.16; IACtHR, Case of Reverón Trujillo v. Venezuela (n. 6),
Operative Paragraphs, para. 209.12; IACtHR, Case of Chocrón Chocrón v. Venezuela (n. 6), Operative
Paragraphs, para. 205.10; IACtHR, Case of the Supreme Court of Justice (Quintana Coello et al.)
v. Ecuador (n. 7), Operative Paragraphs, para. 284.11; IACtHR, Case of the Constitutional Tribunal
(Camba Campos et al.) v. Ecuador (n. 6) Operative Paragraphs, para. 327.11; and IACtHR, Case of
López Lone et al. v. Honduras (n. 4), Operative Paragraphs, para. 341.18.
61 IACtHR, Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela
(n. 6), Operative Paragraphs, para. 267.19; IACtHR, Case of Reverón Trujillo v. Venezuela (n. 6),
Operative Paragraphs, para. 209.9 and 10; and IACtHR, Case of Chocrón Chocrón v. Venezuela (n. 6),
Operative Paragraphs, para. 205.8.
62 Case of Castillo Petruzzi et al. v. Peru [1999] IACtHR, Ser. C No. 52, para. 132.
added by the author.) The Court therefore determined that “the State violated
Article 8(1) of the American Convention,”63 finding the military proceedings
against the victims “invalid.” Among the full reparation measures for the victims,
the Court required that the State guarantee “a new trial in which the guarantees of
due process of law are ensured.”64 (Emphasis added by the author.)
Similarly, in the Case of Palamara Iribarne, the victim, who was a civilian
and had published a book on topics concerning military intelligence, was tried
and convicted by military courts lacking independence. In this case, the Inter-
American Court, having first confirmed that “the independence of the Judiciary
from other State powers is essential for the exercise of judicial functions”65 (em-
phasis added by the author), concluded that the State “did not guarantee Mr.
Palamara’s right to be tried by an appropriate, impartial, and independent judge
in the criminal proceedings brought against him, and therefore, it has violated
Article 8(1) of the Convention to his detriment,”66 and furthermore “violated
the right to judicial protection consecrated in Article 25 of the American
Convention”67 to his detriment. Among the measures of full reparation for the
victim, the Court required that the State “must leave without effect, in the term of
six months and to every extent, the conviction”68 passed by the Chilean military
tribunals against Mr. Palamara Iribarne (emphasis added by the author).
In conclusion, in the case of the trial and conviction of victims by judges
lacking judicial independence, the IACtHR has pronounced the violation of
the essential guarantee of due process and the right to judicial protection as
enshrined in Articles 8 and 25 of the American Convention. Further, among the
full reparation measures for the victims, it has provided for the invalidity of the
processes, requiring the State to leave without effect the convictions and guar-
antee a new trial with full observance of the due legal process.
In two of its cases, the Human Rights Committee of the United Nations, in a
similar way to the IACtHR in the cases relating to the trial or failure to provide ju-
dicial protection to victims by judges lacking judicial independence, has declared
the violation of the essential guarantee of due process and of judicial protection
as enshrined in Article 14.1 of the International Covenant on Civil and Political
Rights and, among the full reparation measures for the victims, has required that
the State provide the victim with effective recourse, guaranteeing—among other
63 Ibid., para. 226.4.

64 Ibid., para. 226.4, Operative Paragraphs, para. 226.13.
65 Case of Palamara Iribarne v. Chile [2005] IACtHR, Ser. C No. 135, para. 145.
66 Ibid., para. 269.3.
67 Ibid., para. 161; and Operative Paragraphs, para. 269.4.
68 IACtHR, Case of Palamara Iribarne v. Chile (n. 65), para. 161; and Operative Paragraphs, para.
269.12; and IACtHR. Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations,
and Costs. Judgment of November 23, 2009. Series C No. 209, paras. 114, 115; Operative Paragraphs
5 and 8.
measures—a judicial proceeding that complies with the guarantees established

by Article 14 of the Covenant.69 Likewise, in these cases, the Committee, in a
similar way to the ICHR, ordered the State to adopt general structural measures
in order to avoid the future occurrence of similar violations.70
Judicial independence is an essential element of the rule of law and constitu-

tional democracy. This is why the constitutions of democratic States enshrine it
in the chapters on the organization of justice, judges, and courts. Its classic role
is to guarantee freedom and uphold the Constitution, through its supervisory
functions.
At the same time, judicial independence has progressively developed as an
essential constitutional and human right within the guarantees of due process.
Indeed, the right of every person to have access to the protection of his or
her rights and to be tried before independent and impartial judges has been
enshrined in international human rights instruments as an international obliga-
tion of States.
For a judge to be independent and free from external pressures, he or she must
in turn enjoy a series of guarantees relating to his or her appointment, tenure,
stability, and termination of his or her function. Hence, if a judge is the victim
of a violation of any of these judicial guarantees, he or she is a legitimate subject
to claim effective protection and full reparation. If protection is not granted by
national courts, the affected judge may bring an action before the competent in-
ternational protection bodies in order to obtain such protection and reparation.
Thus, the right-obligation of every person to protection and trial before in-
dependent judges is also a right-obligation of all judges, both at the domestic
(constitutional-legal) and international level (treaties and other human rights
instruments).
69 The Human Rights Committee of the United Nations has acted similarly to the ICHR. Cf. Gabriel
Osío Zamora v. Venezuela [2018] UN Human Rights Committee, Opinion of Communication No.
2203/2012, CCPR/C/121/D/2203/2012; and Marco Siervo Sabarsky v. Venezuela [2019] UN Human
Rights Committee, Opinion of Communication No. 2254/2013, CCPR/C/125/D/2254/2013.
70 For a broader analysis on structural impact of Inter- American decisions: Pablo Saavedra
Alessandri, “Algunas reflexiones en cuanto al impacto estructural de las decisiones de la Corte
Interamericana de Derechos Humanos,” in Armin von Bogdandy et al. (eds.), Ius Constitucionale
Commune en América Latina. Textos básicos para su compression (MPIL; Instituto de Estudios
Constitucionales del Estado de Querétaro 2017), 457–502.
II.14
Freedom of Expression
Inter-American Standards and Their
Transformative Impact
By Catalina Botero-Marino
1. Introduction
Ius Constitutionale Commune en América Latina (ICCAL),1 or the common

Latin American constitutional law that involves the interaction of norms across
domestic constitutions and the Inter-American Human Rights System (Inter-
American System, or IAHRS) of the Organization of American States (OAS),2
has played a substantial role in developing shared legal standards that drive
constitutional transformation in the region.3 Considering the severe demo-
cratic crisis Latin America currently face, the transformative impact of ICCAL
might not seem believable. The available evidence, however, demonstrates the
existence of a virtuous circle of social impact generated by a multilevel protec-
tion of human rights, democratic principles, and the rule of law. This multilevel
1 On the original idea of a Ius Constitutionale Commune en América Latina, see Armin von
Bogdandy, “The Transformative Mandate of the Inter-American System—Legality and Legitimacy

of an Extraordinary Jurisgenerative Process” (2019) MPIL Research Paper No. 2019-16, https://ssrn.
com/abstract=3463059 (accessed December 3, 2021).
2 The Inter- American Human Rights System (Inter- American System, or IAHRS) of the
Organization of American States (OAS) is composed by the Inter-American Commission on Human
Rights (Inter-American Commission, or IACHR), the Inter-American Court of Human Rights
(Inter-American Court, or IACtHR), and the Rapporteurships created by the IACHR. The Office of
the Special Rapporteur for Freedom of Expression is a key player in promoting the right to freedom
of expression.
3 An earlier version of this chapter was written in 2018 for the Global Freedom of Expression
Project of the University of Columbia and can be found at: Catalina Botero-Marino, “The Role
of the Inter-American Human Rights System in the Emergence and Development of Global
Norms on Freedom of Expression,” in Lee C. Bollinger and Agnès Callamard (eds.), Regardless of
Frontiers: Global Freedom of Expression in a Troubled World (Columbia University Press 2021), 185–
206. I would like to thank my colleagues Julián Niño and Salomé Gómez for their invaluable support
in the production of that article. This chapter also incorporates some of the decisions collected by the
team of Los Andes University that works on the Spanish page of the Global Freedom of Expression
Project. I would like to thank them for their dedicated work summarizing and synthesizing the most
relevant regional jurisprudence on freedom of expression, https://globalfreedomofexpression.colum
bia.edu/espanol/?lang=es (accessed December 3, 2021).
Catalina Botero-Marino, Freedom of Expression In: The Impact of the Inter-American Human Rights System.
Oxford University Press. © Catalina Botero-Marino 2024. DOI: 10.1093/oso/9780197744161.003.0025
474 Catalina Botero-Marino
protection grows out of interactions among domestic courts, the IAHRS, and a
broader community of practice.
This chapter explains the relationship between domestic and international
institutions that has enabled the creation of human rights standards at mul-
tiple levels. These standards have transformed the understanding and appli-
cation of the law at both the domestic and international levels. This chapter
also argues that the Inter-American System has promoted and developed re-
gional standards for the protection of the right to freedom of expression, some
of which have become—or at the very least have the potential to become—
ICCAL. To this end, the chapter explains the process through which existing
standards on freedom of speech have been established; describes the content of
these standards; and demonstrates the transformative impact that two of these
standards have had in domestic legal systems: the standard regarding the limits
of criminal law and the standard regarding the scope and nature of the right to
access public information.
2. The Creation of ICCAL Regarding Freedom of Expression

and the Inter-American System’s Transformative Mandate
During the 1980s and 1990s, the Inter-American Commission on Human Rights
(Inter-American Commission, or IACHR) produced a single thematic report4
and decided only a few cases on freedom of expression.5 Meanwhile, the Inter-
American Court of Human Rights (Inter-American Court, or IACtHR) issued
only two advisory opinions regarding this right, one of which had only a minor
impact.6 Nevertheless, by the late 1990s and the 2000s, the Inter-American
Commission and the Inter-American Court had emerged as leaders in the pro-
motion the right to freedom of expression in the Americas.
Three critical events characterize the Inter-American System’s transition to-
ward increased attention to the right of freedom of expression:7 (i) the creation,
in 1997, of the Office of the Special Rapporteur for Freedom of Expression (Office
of the Special Rapporteur, or Office) at the IACHR; (ii) the publication, in 2000,
4 IACHR, “Annual Report 1994,” Chapter V: Report on the Compatibility of “Desacato” Laws with
the American Convention on Human Rights, OEA/Ser.L/V/II.88, Doc. 9 rev., February 17, 1995.
5 For a list of the most important IACHR cases concerning freedom of expression, see http://
www.oas.org/en/iachr/expression/jurisprudence/decisions_iachr_merit.asp (accessed December

3, 2021).
6 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism
(Arts. 13 and 29 American Convention on Human Rights), IACtHR, Advisory Opinion OC-5/85 of
November 13, 1985, Ser. A, No. 5; Enforceability of the Right to Reply or Correction (Arts. 14(1), 1(1)
and 2 American Convention on Human Rights), IACtHR, Advisory Opinion OC-7/86 of August 29,
1986, Ser. A, No. 7.
7 For more details on this issue, see Botero-Marino (n. 3), 185–206.
Freedom of Expression 475
of the IACHR’s Declaration of Principles on Freedom of Expression;8 and (iii)

the approval, in 2000, of the Inter-American Democratic Charter of the OAS,9
which provided that freedom of expression is one of the “essential components
for the exercise of democracy.”
These events sparked an exponential increase in regional attention to the de-
velopment of standards concerning freedom of expression. From 2001 until the
date of completion of this chapter,10 the IACtHR has decided fifty11 cases related
to freedom of expression and access to information.12 These cases constitute
slightly less than 15 percent of all rulings issued by the Inter-American Court
(347).13 Meanwhile, the IACHR has issued many admissibility, merits, the-
matic, and country reports on the subject and, through its Office of the Special
Rapporteur, has produced twenty-two annual reports detailing progress and
setbacks in the right to freedom of expression in every State of the Americas.
During the same period, the Office also issued more than forty thematic reports
analyzing broader trends concerning the right to freedom of expression.14
The Inter- American System’s exponential increase in attention and
contributions to legal norms concerning freedom of expression has provided a
basis for hundreds of well-known cases from courts throughout the region and
has given rise to significant constitutional and legislative reforms, as I will ana-
lyze here.15 For example, Chile modified its constitution to eliminate prior cen-
sorship in response to one of the Inter-American Court’s decisions. Chile, along
with over twenty other countries in the region, also has created mechanisms that
guarantee access to information in accordance with an IACtHR ruling. More
than twelve Latin American countries repealed or modified criminal provisions
due to the Inter-American Commission’s reports and the Inter-American Court’s
8 The Declaration of Principles on Freedom of Expression, approved by the IACHR in
October 2000.
9 AG/RES. 1 (XXVIII-E/01), September 11, 2001.
10 June 1, 2021.
11 The Inter-American Court includes fifty-three cases related to freedom of expression in its juris-
prudence search engine. In a study conducted together with Anderson Dirocie at Columbia Global
Freedom of Expression, however, we found that five of these fifty-three cases have no relation to
Article 13, and that two other cases concerning freedom of expression were not included among
the fifty-three. We concluded that a total of fifty cases relate to freedom of expression. Most of these
decisions are referenced in this chapter.
12 For a list of judgments on the right to freedom of expression of the Inter-American Court, see
http://www.oas.org/en/iachr/expression/jurisprudence/si_decisions_court.asp (accessed December

3, 2021).
13 For a list of judgments of the IACtHR, see http://www.corteidh.or.cr/cf/Jurisprudencia2/busq
ueda_casos_contenciosos.cfm?lang=en (accessed December 3, 2021).

14 For the annual and thematic reports concerning the right to freedom of expression from the
Special Rapporteurship, see http://www.oas.org/en/iachr/expression/reports/annual.asp and http://

www.oas.org/en/iachr/expression/reports/thematic.asp (both accessed December 3, 2021).
15 For information on the most emblematic cases on this subject, see Global Freedom of Expression
of the University of Columbia, Spanish Database: https://globalfreedomofexpression.columbia.edu/

espanol/?lang=es (accessed December 3, 2021).
rulings.16 Additionally, and as this chapter will show, the most emblematic do-
mestic judgments that promote the right to freedom of expression in the region
consistently cite decisions and other products of the Inter-American System.
The Inter-American System’s influence in the region is not a one-way street,
flowing only from the IAHRS to States. Instead, the construction of transform-
ative standards has resulted from a virtuous circle in which domestic legal
developments also enrich the work of the Inter-American System. For example,
Claude Reyes et al. v. Chile, the first ruling issued by an international human
rights court to safeguard access to information as a fundamental right, was made
possible, in part, by the legislative progress that Mexico had made during the
turn of the century with regard to access to information. The increase in criminal
law restrictions that punished critical discourse regarding public affairs slowed
after Argentina acknowledged, in Kimel v. Argentina, that it had violated the
rights of investigative journalist Eduardo Kimel by sentencing him to a year in
prison for denouncing a domestic judge’s alleged collaboration with the dictator-
ship.17 Similarly, at the end of the twentieth century, Colombia created the first
domestic protection system for journalists, which was later acknowledged by
the Inter-American Court in the case of Vélez Restrepo and family v. Colombia.18
Before analyzing the Inter-American System’s innovations concerning the right
to freedom of expression and their impact on States, however, it is worth noting
States’ recurrent backlash against the development of these standards.
Inter-American standards on freedom of expression have not developed lin-
early or without contradictions. Since the beginning, these developments have
encountered fierce opposition from illiberal governments and less democratic
Latin American States, as well as OAS political bodies influenced by these States.
From the Peruvian President Alberto Fujimori to the Venezuelan and Ecuadorian
presidents Chavez, Maduro, and Correa, Latin American leaders have chal-
lenged the IAHRS’s promotion of freedom of expression. Venezuela, for in-
stance, started a campaign against the Inter-American System that, in September
2012, culminated in the State’s withdrawal from the American Convention on
Human Rights (American Convention, or ACHR). The Ecuadorian government
under Rafael Correa was the subject of questions, concern, and condemnation
in the Office of the Special Rapporteur’s annual reports and press releases for
16 This corresponds to the number of countries that have modified either their desacato or crim-
inal defamation laws. Later in this chapter, I will mention which countries made modifications in one
or both of those categories. See also Botero-Marino (n. 3), 185–206.
17 Kimel v. Argentina [2008] IACtHR, Ser. C, No. 177.
18 Vélez Restrepo and family. v. Colombia [2012] IACtHR, Ser. C, No. 248. To learn more about
the influence of State developments on international standards regarding freedom of expression, see
“The Role of the Interamerican Human Rights System in the Emergence and Development of Global
Norms on Freedom of Expression, Botero Catalina, Columbia Freedom of Expression Project,” cur-
rently in the process of being published.
imposing criminal sanctions on journalists, charging media companies large

sums of money for alleged damages they had caused to the “person of the presi-
dent,” arbitrarily using State publicity, suspending the transmission of television
channels critical of Correa’s administration, monopolizing media ownership in
the hands of the State, and more.19 In the same year of Venezuela’s withdrawal,
Ecuador proposed a program to reform the IACHR to the Permanent Council
of the OAS. The reform sought to hamper the Office of the Special Rapporteur’s
work by imposing technical and financial constraints.20 Thanks to the strong op-
position Ecuador faced at the Permanent Council, the reforms were eventually
rejected.21
Even if these attacks have affected the IAHRS, and even if the conditions of po-
litical uncertainty in which the region currently finds itself do not favor expansive
developments in the scope of the rights contained in the American Convention,
inter-American standards regarding freedom of expression still have a notable im-
pact, as shown in the following sections.
3. Inter-American Standards within the Multilevel

Legal System
Over the last twenty years, the Inter-American System has advanced a set of legal
standards on freedom of expression in the region. The IAHRS has developed and ap-
plied a three-part proportionality test to evaluate limitations on the right to freedom
of expression. This test is based on the general notion that the right to freedom of
expression enjoys special protection when it concerns matters of public interest. The
three-part test requires that, for any limitation on freedom of expression on matters
of public interest to be legitimate, the following must be demonstrated: (1) that the
restrictions are contemplated in a clear and concise law; (2) that the law pursues a
legitimate aim, that is, a purpose protected by international human rights law such
as the American Convention; and (3) that the measure is useful, necessary, and pro-
portionate to the end pursued.22
The IAHRS’s jurisprudence also has developed relevant protective standards
across the following main topics within the freedom of expression:23
19 2011 Annual Report of the OAS Special Rapporteur for Freedom of Expression, Catalina
Botero-Marino, Chapter II(B)(9): Ecuador. OEA/Ser.L/V/II, Doc. 69, December 30, 2011.
20 The proposals to reform the Office of the Special Rapporteur sought to prevent the
Rapporteurship from acting autonomously and from acquiring funds from sources external to
the OAS.
21 For more on this, see Botero Marino (n. 3).
22 For more on the three-part proportionality test, see Kimel v. Argentina (n. 17).
23 The Office of the Special Rapporteur for Freedom of Expression has proposed the development
of standards on other issues, such as: the scope of freedom of expression on the Internet; freedom
First, the IAHRS has determined that speech concerning matters of public in-
terest, or public interest speech, requires special protection, which is reflected in
the prohibition of the use of criminal law to limit expressions that may affect the
reputations of public officials.24
Second, the Inter-American Court has been a pioneer on the right of access to
public information.25 The IACtHR has furthered the right of access to informa-
tion in at least three key contexts: the right of access to information concerning
serious human rights violations,26 Indigenous peoples’ right of access to infor-
mation,27 and the right of access to information as a requirement for obtaining
informed consent in matters relating to an individual’s health.28
Third, the Inter-American Court has ruled that the American Convention
prohibits prior29 and indirect censorship.30
Fourth, the IACtHR has determined that States must grant special protec-
tion to individuals who are threatened or harmed for exercising their right to
freedom of expression.31
Fifth, the Inter-American Court has developed important standards on the
limitations on, as well as duties32 and rights33 of, public officials with respect to
freedom of expression.
of expression in electoral proceedings; freedom of expression and poverty; and standards on diver-
sity and pluralism in the media; see http://www.oas.org/en/iachr/expression/index.asp (accessed
December 7, 2021); see Granier et al. (Radio Caracas Televisión) v. Venezuela [2015], IACtHR, Ser.
C, No. 293 (on pluralism); and 2016 Thematic Report of the OAS Special Rapporteur for Freedom
of Expression, Edison Lanza: Standards for a Free, Open and Inclusive Internet. OEA/Ser.L/V/II,
IACHR/RELE/INF.17/17, March 15, 2017.
24 The two landmark cases of the Inter-American Court on this issue are Kimel v. Argentina (n. 17),
and Tulio Alvarez v. Venezuela. The other eight cases are mentioned later in this chapter.
25 The most significant case on this issue is Claude-Reyes et al. v. Chile.
26 Case of Myrna Mack Chang v. Guatemala. Merits [2003], IACtHR, Ser. C No. 101; Case of Gomes
Lund et al. (“Guerrilha do Araguaia”) v. Brazil [2010], IACtHR, Ser. C No. 219; Case of Maldonado
Vargas et al. v. Chile [2015], IACtHR, Ser. C No. 300.
27 Two of the most emblematic cases in this area are probably Kaliña and Locono v. Suriname, and
Kichwa Indigenous People of Sarayaku v. Ecuador.

28 Case of I.V. v. Bolivia [2017], IACtHR, Ser. C No. 336.
29 The most emblematic case on the matter is likely Olmedo Bustos et al. v. Chile (The Last
Temptation of Christ) [2001], IACtHR, Ser. C, No. 73. The Inter-American Commission has also
considered this issue in cases such as the Francisco Martorell v. Chile.
30 The most emblematic cases on the issue are probably: Ivcher Bronstein v. Peru [2001], IACtHR,
Ser. C, No. 74. And IACtHR Granier et al. (Radio Caracas Televisión) v. Venezuela [2015], IACtHR,
Ser. C, No. 293.
31 The emblematic case of the Inter-American Court in this matter is Vélez Restrepo and family
v. Colombia (n. 18). Other significant cases on the subject are Ríos et al. v. Venezuela, Perozo
et al. v. Venezuela, and Carvajal Carvajal et al. v. Colombia, IACtHR, and Manoel Leal de Oliveira v.
Brazil, IACHR.
32 The most emblematic cases on the limitations on freedom of expression for public officials
are Apitz Barbera v. Venezuela, Ríos et. al v. Venezuela, Perozo et al. v. Venezuela, Uzcátegui et al.
v. Venezuela, and Granier et al. (Radio Caracas Television) v. Venezuela, all cases IACtHR.
33 On the right of public officials to question actions of other public authorities or to participate in
the debate of matters of public interest, see cases San Miguel Sosa et al. v. Venezuela, López Lone et al.
The IACtHR’s jurisprudence has also addressed media regulation,34 the rela-
tion between freedom of expression and the right of association,35 the limits of
civil law as a means of restricting freedom of expression,36 and special protection
for speech that expresses essential elements of personal identity or dignity.37
Two of these topics are particularly relevant to this chapter, since the IAHRS’s
jurisprudence in these areas has had a remarkable transformative impact: the
special protection of public interest speech, and more specifically the prohibi-
tion of contempt and criminal defamation; and access to public information. The
IAHRS’s approach to the other issues mentioned has also had a notable impact in
some countries, but has not been as significant on a regional scale. For example,
although inter-American standards on the prohibition of censorship have not
had an impact on the entire region, they still have produced a transformative im-
pact in some countries,38 including constitutional reform in Chile.39
In the next section, I describe the content of inter-American standards related
to the protection of public interest speech and the right to access information as
well as these standards’ impact on domestic legal systems.
3.1. Special Protection of Public Interest Speech: The Rejection

of Desacato and Criminal Defamation
An issue of great concern to the Inter-American Commission and the Office

of the Special Rapporteur for Freedom of Expression has been the application
of criminal sanctions to punish those who express their opinions on matters
of public concern. The IACHR and the Office of the Special Rapporteur have
expressed this concern in the report on the crime of desacato (contempt),40 the
v. Honduras, IACtHR, and Urrutia Laubreaux v. Chile, IACtHR, and, especially, the case Adriana
Beatriz Gallo et al. v. Argentina, IACHR.
34 Case of Granier et al. (Radio Caracas Television) v. Venezuela [2015], IACtHR, Ser. C No. 293;
IACHR, Report No. 48/16, Case 12.799, Merits (Publication). Miguel Ángel Millar Silva and Others
(Radio Estrella del Mar de Melinka) Chile, November 29, 2016.
35 Case of Lagos del Campo v. Peru [2018], IACtHR, Ser. C No. 366; Case of Yarce et al. v. Colombia
[2017], IACtHR, Ser. C No. 343.

36 Case of Fontevecchia and D’Amico v. Argentina [2011], IACtHR, Ser. C No. 238; Case of Tristán
Donoso v. Panama [2009], IACtHR, Ser. C No. 193.

37 Case of the Community Garifuna Triunfo de la Cruz and its members v. Honduras [2015],
IACtHR, Ser. C No. 305; Case of Vicky Hernández et al. v. Honduras [2021], IACtHR, Ser. C No. 422.
38 See Supreme Court Justice of Brazil, Judgment of August 4, 2015; Supreme Court of Justice of
Mexico, Judgment of May 2, 2012; Supreme Court of Justice of Costa Rica, Judgment of March 29,
2011; Constitutional Court of Colombia, Judgment of February 3, 2011, https://globalfreedomofexp
ression.columbia.edu/espanol/?lang=es (accessed December 11, 2021).
39 Law No. 19.742 of August 8, 2001, Boletín Oficial of August 25, 2001.
40 IACHR, “Annual Report 1994,” Chapter V: Report on the Compatibility of “Desacato” Laws with
the American Convention on Human Rights, OEA/Ser.L/V/II.88, Doc. 9 rev., February 17, 1995.
Declaration of Principles on Freedom of Expression,41 and additional thematic

and country reports, as well as in a number of cases the IACHR has brought be-
fore the IACtHR.
Thus far in the twenty-first century, the Inter-American Commission has
brought ten cases before the Inter-American Court concerning the use of crim-
inal law to restrict freedom of expression.42 In nine of those cases, the IACtHR
found that the use of criminal law constituted an unnecessary and dispropor-
tionate measure in violation of the right to freedom of expression. Only in one
of these cases, Mémoli v. Argentina, did the Inter-American Court uphold the
imposition of criminal sanctions as a consequence of speech. In Mémoli, the
IACtHR decided that it would not be appropriate strictly to apply the three-part
test because that the expression that had been subjected to criminal liability was
not, in the Inter-American Court’s view, public interest speech. The IACtHR
reached this conclusion by noting that the offensive expression was directed not
at a public official but at private individuals. The IACtHR decided that illegal use
of public property leased to private individuals was not relevant. In the latest case
on the matter, Álvarez Ramos v. Venezuela,43 the IACtHR provided a detailed for-
mulation of the jurisprudential rule on proportionality and the use of criminal
law to punish criticism of public officials. Nevertheless, this judgment exclusively
concerns speech that criticizes public officials in the exercise of their functions.
The IACtHR’s jurisprudence rejecting the use of criminal law to punish those
who have criticized public officials has given rise to at least three transformations.
First, the development of this standard led most States of the region to repeal
the crime of desacato. Second, this standard has restricted the concept of crim-
inal defamation in several criminal codes. Third, the standard provides judi-
cial protection for individuals who face charges after expressing criticism that
“offends” public officials. In the following subsections, I discuss each of these
three transformations.
3.1.1. Contempt Laws/Leyes de Desacato

At the beginning of the 1990s, as a legacy of Latin America’s authoritarian past,
many criminal codes in the region retained sanctions that enabled the imprison-
ment of anyone who, by any means, offended the honor or reputation of a public
official.44 Desacato (contempt), as this crime is called, should not be mistaken for
41 Declaration of Principles on Freedom of Expression, approved by the IACHR in October 2000.

42 Cf. Herrera Ulloa v. Costa Rica (n. 52); Ricardo Canese v. Paraguay (n. 52); Palamara Iribarne
v. Chile [2005], IACtHR, Ser. C, No. 135; Kimel v. Argentina (n. 17); Tristán Donoso v. Panamá
[2009], IACtHR, Ser. C, No. 193; Usón Ramírez v. Venezuela [2009], IACtHR, Ser. C, No. 207; Mémoli
v. Argentina [2013], IACtHR, Ser. C, No. 265; Álvarez Ramos v. Venezuela [2019], IACtHR, Ser. C, No.
380; Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People)
v. Chile [2014], IACtHR, Ser. C No. 279.
43 Álvarez Ramos v. Venezuela (n. 42).
44 Botero-Marino (n. 3).
criminal defamation. The victim of desacato is necessarily a public official, which

is not true of criminal defamation. The punishment for desacato is also more se-
vere than those crimes of defamation.
The IACHR first considered desacato laws in the 1992 case of Verbitsky
v. Argentina.45 After entering a friendly settlement agreement, Argentina
removed the crime of desacato from its criminal code.46 At the same time, the
IACHR found that the crime of desacato was incompatible with Article 13 of the
American Convention. According to the Inter-American Commission, desacato
undermines a fundamental democratic principle: that, public officials should al-
ways be subject to public scrutiny.47 In support of its position, the IACHR drew
on the jurisprudence of the European Court of Human Rights.48 The IACHR
also observed that desacato remained a crime in at least fourteen Latin American
countries and recommended that it be repealed. As a direct consequence of the
IACHR’s report, Paraguay repealed the crime of desacato in 1997.49 Shortly after,
the Inter-American Commission issued its Declaration of Principles on Freedom
of Expression, which provides that “[l]‌aws that penalize offensive expressions
directed at public officials, generally known as ‘desacato laws,’ restrict freedom of
expression and the right to information.” Following this, Costa Rica50 and Peru51
removed the crime of desacato from their criminal codes.
Later, three cases concerning the criminalization of public interest speech
were brought before the IACHR: Herrera Ulloa v. Costa Rica (2004), Ricardo
Canese v. Paraguay (2004), and Palamara Iribarne v. Chile (2005). In the third
case, Palamara Iribarne was convicted for desacato. Cases decided by the IACHR
between 2002 and 2003 were also brought before the Inter-American Court,
which issued its rulings in 2004 and 2005.52 In the Palamara Iribarne case, the
IACtHR found that crimes of desacato are incompatible with the American
Convention. Furthermore, it held that the use of criminal law to limit public in-
terest speech is unnecessary and disproportionate in democratic societies. In re-
sponse to these rulings, Panama,53 Chile,54 and Nicaragua55 removed desacato
from their criminal codes. Additionally, the constitutional courts of Honduras,56
45 Verbitsky v. Argentina [1994], IACHR, “Report No. 22/ 94 (Friendly Settlement),” Case No.
11.012.
46 Law 24.198 of May 12, 1993, Boletín Oficial No. 27.652.
47 Inter-American Commission, “1994 Annual Report,” Chapter V.
48 Lingens v. Austria [1986], ECtHR, and Castells v. Spain [1992], ECtHR.
49 Law No. 1.160 of November 26, 1997 (Criminal Code).
50 Law No. 8.224 of March 13, 2002, La Gaceta No. 65.
51 Law No. 27.975 of May 28, 2003, Diario Oficial El Peruano, 244.983.
52 Herrera Ulloa v. Costa Rica [2004], IACtHR, Ser. C, No. 107; Ricardo Canese v. Paraguay [2004],
IACtHR, Ser. C, No. 111; Palamara Iribarne v. Chile [2005], IACtHR, Ser. C, No. 135.
53 Law No. 22 of June 29, 2005, Gaceta Oficial 25.336.
54 Law No. 20.048 of August 22, 2005, Diario Oficial No. 38.250.
55 Law No. 641 of November 16, 2007, La Gaceta No. 232.
56 Supreme Court of Justice of Honduras, Chamber of Constitutional Affairs, Judgment of May
19, 2005. For case information of this and all other judgments handed down by national courts
Guatemala,57 and Bolivia58 held the crime of desacato unconstitutional based on

the Inter-American Court’s jurisprudence. Similarly, the Fifth Chamber of the
Superior Court of Justice of Brazil59 held that the crime of desacato is incompat-
ible with the American Convention in a special appeal.60
The Guatemalan and Bolivian rulings that declared desacato laws to be con-
trary to these countries’ respective constitutions illustrate the transformative im-
pact of inter-American jurisprudence on constitutional law in Latin America.
The Constitutional Court of Guatemala declared unconstitutional the crim-
inal provisions that severely sanctioned insult, defamation, and offenses that
damaged the honor and reputation of public officials if they were related to the
exercise of public functions.61 In adopting this decision, the court interpreted
Guatemala’s constitutional right to freedom of expression in light of inter-
American standards. Drawing on the IACtHR’s Advisory Opinion OC-5/85 and
the IACHR’s Report on the Compatibility of “Desacato” Laws with the American
Convention on Human Rights, the Guatemalan court concluded that contempt
laws were, per se, contrary to the American Convention and the Guatemalan
Constitution. According to the Guatemalan court, public officials in a demo-
cratic society have a duty to submit themselves to greater public scrutiny and
not, through desacato laws, to greater protection of their right to personality, in-
cluding the right to a good name. In response to the argument that the decrimi-
nalization of desacato would lead to an avalanche of unfair criticism of officials,
the Guatemalan court held that the right to freedom of expression must protect
not only inoffensive speech but also offensive, shocking, and disturbing ideas or
information, as this is what pluralism, tolerance, and broadmindedness—the
foundational values of democratic societies—demand.
A few years later, the Plurinational Constitutional Court of Bolivia declared
unconstitutional the crime of desacato, while expressly relying on inter-
American law.62 The Bolivian court used the same formulation of the principle
of proportionality as used by the Inter-American Court in cases concerning
freedom of expression. The Bolivian court stated that restrictions on freedom of
expression, according to the jurisprudence of the IACtHR, must: (i) be expressly
provided for by law; (ii) be aimed at the protection of the rights and reputation
mentioned in this chapter, see https://globalfreedomofexpression.columbia.edu/casos/?lang=es

(accessed December 1, 2021).
57 Constitutional Court of Guatemala, Judgment of February 1, 2006.

58 Constitutional Court of Bolivia, Judgment of September 20, 2012.
59 Superior Tribunal de Justiça do Brasil (STJ), Recurso Especial No. 1.640.084 -SP (2016/
0032106-0), Judgment of December 15, 2016.

60 More on this same subject: Botero-Marino (n. 3), 185–206.
61 Constitutional Court of Guatemala, Judgment of February 1, 2006.
62 Constitutional Court of Bolivia, Judgment of September 20, 2012.
of individuals, national security, public order, public health, or morals; and (iii)
be necessary in a democratic society to “achieve imperative public interests.”
On the one hand, the Bolivian court acknowledged that the crime of desacato
pursued a legitimate aim, since it sought to protect the right to honor, which
is held by all persons. On the other hand, the court indicated that government
authorities or public servants carry out activities that are in the interest of society
and, therefore, it is necessary that the way in which they exercise their functions
be openly debated. If any information published for this purpose is false, officials
can respond through rectification and reply, as provided in Article 106.II of the
Bolivian Constitution. According to the Bolivian court, desacato impedes over-
sight of the administration of public funds and facilitates corruption, thereby
failing to protect the collective rights of society as a whole. In support of this
decision, the Bolivian court expressly cited the IACtHR case of Herrera Ulloa
v. Costa Rica and the IACHR’s Report on the Compatibility of “Desacato” Laws
with the American Convention on Human Rights.
3.1.2. Criminal Defamation
The Office of the Special Rapporteur for Freedom of Expression has repeat-
edly asserted in its reports that criminal law is a disproportionate means of
restricting public interest speech.63 The Inter-American Commission reiterated
this concern in its Declaration of Principles on Freedom of Expression.64 The
IACHR also has adopted all of the Office of the Special Rapporteur’s reports and
submitted cases concerning criminal defamation to the Inter-American Court
that have given rise to the Inter-American System’s jurisprudence on the matter.
According to IAHRS jurisprudence, the use of criminal law to limit freedom
of expression violates Article 13.2 of the American Convention unless it meets
these three conditions: (i) the limitation must be defined in a precise and clear
manner by law, formally and materially; (ii) the limitation must be in the in-
terest of compelling objectives that are enshrined in the American Convention;
and (iii) the limitation must be necessary for a democratic society to achieve the
compelling objectives pursued, strictly proportionate to the objectives, and ap-
propriate to serve the objectives.65
Under the first requirement, the principle of legality (also known as strict
legality, which applies to criminal provisions in the terms of Article 9 of the
63 IACHR, Office of the Special Rapporteur on Freedom of Expression. The Inter-American Legal
Framework Regarding the Right to Freedom of Expression, <http://www.oas.org/en/iachr/expression/

docs/publications/INTER-AMERICAN%20LEGAL%20FRAMEWORK%20OF%20THE%20RI
GHT%20TO%20FREEDOM%20OF%20EXPRESSION%20FINAL%20PORTADA.pdf> (accessed
December 1, 2021).
64 Declaration of Principles on Freedom of Expression, approved by the IACHR in October 2000.
65 IACHR, The Inter-American Legal Framework Regarding the Right to Freedom of Expression,
para. 67.
American Convention), the restriction must be formulated in a clear and precise

manner, free of ambiguities or uncertainties. Under the second requirement, the
principle of legitimate aim, the restriction must be oriented toward achieving
a purpose enshrined in the American Convention. Finally, under the third re-
quirement, the principle of necessity, the restriction must be essential to achieve
the desired purpose; it must constitute the least onerous means, among all means
available, for the achievement of that purpose; and it must be proportional to the
degree of infringement of freedom of expression.
Applying this in the case of Kimel v. Argentina, the IACtHR concluded that
Argentina’s criminal libel and slander laws violated Articles 9 and 13 of the
American Convention due to their extreme vagueness.66 The Inter-American Court
used this test to find that, in establishing liability, States must employ the measures
least restrictive of freedom of expression.67 The IACtHR additionally clarified that
the principle of necessity is not met when a restriction is merely useful, reasonable,
or timely. To be necessary, the restriction must be essential to achieve a legitimate
purpose.68 Moreover, in cases concerning public interest speech, restrictions must
be strictly proportionate, meaning that the sacrifice of freedom of expression “is not
exaggerated or disproportionate in relation to the advantages obtained from the
adoption of such limitation.”69
According to the IACtHR, critical speech directed at public officials and con-
cerning matters related to their public functions enjoys special and reinforced pro-
tection for three fundamental reasons: first, public officials have voluntarily exposed
themselves to public scrutiny, so they are obliged to tolerate a higher level of criti-
cism and intrusion into their private lives; second, public officials, due to their social
position, have a greater capacity than does the average individual to counter any
criticism directed against them in the public arena; and, third, the existence of open
public debate on the conduct and suitability of those who exercise or aspire to exer-
cise public functions is indispensable for the functioning of democracy.70
As a result of these inter-American standards, a significant number of States
party to the American Convention have repealed—completely or partially—the
crime of defamation from their respective legal systems through either legislation
or jurisprudence.
Drawing on arguments similar to those developed
within the Inter-
American System, Nicaragua,71 Panama,72
66 Kimel v. Argentina (n. 17).

67 Ibid., para. 76.
68 Ibid., para. 85.
69 Ibid., para. 83.
70 Cf. ibid.
71 Law No. 641 of November 16, 2007, La Gaceta No. 232.
72 Law No. 26 of May 21, 2008, Gaceta Oficial 26.045. See Supreme Court of Justice, Judgment of
April 11, 2014.

Argentina,73 and El Salvador74 partially abolished the crimes of slander and

libel. Meanwhile, the highest criminal courts in Peru75 and Colombia76 cited the
Inter-American Court’s jurisprudence when deciding that defamation crimes,
although constitutional in principle, are disproportionate in practice when
used to protect the honor of public officials. Mexico,77 Grenada,78 and Jamaica79
fully removed defamation crimes from their legislation. Similarly, the Mexican
Supreme Court80 held that, where libel and/or slander remained crimes in local
legislation, public officials’ critics nevertheless could not be charged with these
crimes to ensure the special protection of public interest speech.81
In total, eleven countries have repealed the crime of desacato, and nine
have repealed the crime of defamation, in accordance with the evolving inter-
American standards on freedom of expression. Unfortunately, some countries
have lagged behind. In Venezuela, for example, domestic courts continue to con-
vict journalists for publicly criticizing politicians and other public authorities. In
response to these countries’ behavior, the IACHR and the Office of the Special
Rapporteur have issued public statements82 that have produced strong political
reactions from these States.83
3.2. The Right of Access to Information
The Office of the Special Rapporteur addressed the right of access to informa-
tion in detail for the first time in its 2001 Annual Report.84 In this document,
the Office of the Special Rapporteur observes that ACHR Article 13 protects
the right of access to information,85 an interpretation supported not only by the
text of that provision but also by the Inter-American Court’s Advisory Opinion
73 Law No. 26.551 of November 18, 2009, Boletín Oficial No. 31.790. See Supreme Court of Justice,
Judgment of June 24, 2008.

74 Decree No. 836 of December 7, 2011, Diario Oficial No. 299, Vol. 393.
75 Supreme Court of Justice of Peru, Chamber of Criminal Affairs, Judgment of June 18, 2010.
76 Supreme Court of Justice of Colombia, Chamber of Criminal Affairs, Judgment of July 10, 2013.
77 Decree of April 13, 2007, Diario Oficial de la Federación of April 13, 2007.
78 Criminal Code (Amendment) Act 2012.
79 Defamation Act 2013.
80 Supreme Court of Justice of the Nation of Mexico, Judgment of June 17, 2009.
81 To further examine this topic: Botero-Marino (n. 3), 185–206.
82 OAS Special Rapporteurship for Freedom of Expression, Press Release No. 96/11 (Revista Sexto
Poder v. Venezuela), August 31, 2011; Press Release No. 93/15 (La Nación, Tal Cual et al. v. Venezuela),
August 24, 2015. IACHR, Precautionary Measure No. 406/11 (Palacio et al. v. Ecuador), February 21,
2012; Precautionary Measure No. 30-14 (Villavicencio v. Ecuador), March 24, 2014; Report No. 66/
2015 (Admissibility), Case No. 1436-11 (Palacios v. Ecuador), October 27, 2015.
83 See Botero-Marino (n. 3), 185–206.
84 2001 Annual Report of the OAS Special Rapporteur for Freedom of Expression, Santiago
Cantón, Chapter III: Report on the Action with Respect to Habeas Data and the Right of Access to
Information in the Hemisphere.
85 Ibid., para. 10.
OC-5/8586 and Principle 4 of the Inter-American Commission’s Declaration of

Principles of Freedom of Expression.87 Nonetheless, the Office expressed con-
cern that only a few States in the Americas at the time had in place legislation
concerning the right of access to information.
In 2006, in the case of Claude Reyes et al. v. Chile,88 the IACtHR interpreted
Article 13 of the American Convention to provide a right of access to information
held by the State.89 In its ruling, the Inter-American Court found that it is not nec-
essary for an individual to prove they have a particular interest in order to access
this information. The Inter-American Court also stated that any restriction on this
right must be provided by law, pursue a legitimate aim, and be necessary to attain
that purpose.90 The IACtHR drew on many of the Office of the Special Rapporteur’s
arguments and products, especially in its 2003 Annual Report. The Office, in turn,
had drawn inspiration from the Mexican law on access to information.
In addition to the pioneering developments in the right of access to infor-
mation in the Claude Reyes case, the Inter-American Court has also addressed
three specific aspects of the right of access to information that have had a less
significant regional impact: the right of access to information concerning
serious human rights violations;91 Indigenous peoples’ right of access to
86 The Report draws from the Advisory Opinion, IACHR, OC 5/85, Ser. A. No. 5, para. 70, in
paragraph 21 of the third chapter, the following conclusion: “[A]‌ccess to state-held information
represents a fundamental individual right that states have the duty to uphold.”
87 The Report homes in on Principle 4 of the IACHR Declaration of Principles of Freedom in para-
graph 22 of the third chapter: “Access to information held by the state is a fundamental right of every
individual. States have the obligation to guarantee the full exercise of this right. This principle allows
only exceptional limitations that must be previously established by law in case of a real and imminent
danger that threatens national security in democratic societies.” And paragraph 23: “Principle 4 of
the IACHR Declaration of Principles of Freedom of Expression establishes the parameters the state
must observe in denying information in its possession. Given the need to promote greater trans-
parency in government as the basis for strengthening democratic institutions in the hemisphere,
limitations with respect to the information contained in state archives must be exceptional. Such
limitations must be clearly established in the law and applicable only in the case of substantial and
imminent detriment to a legitimate pursuit of public policy, and when the protection of such infor-
mation must take precedence over the public interest in being informed. Petitions in respect of any
act restricting access to information should therefore be considered on a case-by-case basis.” See also
2001 Annual Report of the OAS Special Rapporteur for Freedom of Expression, Santiago Cantón,
Chapter III: Report on the Action with Respect to Habeas Data and the Right of Access to Information in
the Hemisphere, ch. 3.
88 For more details on the impact of the Claude Reyes decision, see Sofía Jaramillo-Otoya, “Claude
Reyes et al v. Chile: A Global Trailblazer,” in Lee C. Bollinger and Agnès Callamard (eds.), Regardless
of Frontiers: Global Freedom of Expression in a Troubled World (Columbia University Press, 2021),
185–206.
89 The European Court of Human Rights (European Court), in the case of Guerra et al. v. Italy
[1998], had already recognized the existence of a right of access to information concerning envi-
ronmental issues. The European Court, however, held that the right arose not from Article 10 of the
European Convention on Human Rights but from Article 8; see Guerra et al. v. Italy [1998] ECtHR.
90 Claude Reyes, IACtHR, paras. 88–91.
91 Case of Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil [2010], IACtHR, Ser. C No. 219;
Case of Maldonado Vargas et al. v. Chile [2015], IACtHR, Ser. C No. 300.
information;92 and the right of access to information for the exercise of personal
autonomy or as a requirement for obtaining informed consent in matters relating
to an individual’s health.93 Claude Reyes is one of the IACtHR cases that has had
the greatest transformative impact in the region.
In response to Claude Reyes, Chile passed a legislative reform that established
a system of guarantees for the right of access to information.94 In 2007, following
this legislative reform, the Constitutional Court of Chile found that there is a
fundamental right of access to information.95 At the same time, Honduras,96
Nicaragua,97 Guatemala,98 and Uruguay99 enacted laws on access to informa-
tion. These events constituted the first legislative wave concerning the right of
access to information in the Americas. Later, after the OAS General Assembly
approved the Inter-American Model Law on Access to Public Information,100
the Inter-American Court restated the holding of Claude Reyes in the case of
Gomes Lund et al. v. Brazil.101 In so doing, the Inter-American System unleashed
a second legislative wave, in which access to information laws were enacted in
El Salvador,102 Brazil,103 Colombia,104 Argentina,105 Paraguay,106 Guyana,107 and
the Bahamas.108
Although Claude Reyes v. Chile is probably the most cited judgment of the
Inter-American Court concerning ACHR Article 13, the overall impact of the
IACtHR’s jurisprudence on access to information has also been remarkable.
Promoting the right of access to information has not been easy, since access to in-
formation contradicts the culture of secrecy that has prevailed in Latin America
and which in many cases has been protected by laws inherited from dictatorships.
Legislative and judicial transformations in the field of access to information are
critical. The regional transformations that have resulted from the development
of IAHRS standards concerning access to information demonstrate the existence
92 Case of the Kaliña and Lokono Peoples v. Suriname [2015], IACtHR, Ser. C No. 309; Case of
Kichwa Indigenous People of Sarayaku v. Ecuador [2012], IACtHR, Ser. C No. 245.
93 Case of I.V. v. Bolivia [2017], IACtHR, Ser. C No. 336.
94 Law No. 20.285 of August 11, 2008, Boletín Oficial of August 20, 2008.
95 Constitutional Court of Chile, Judgment of August 9, 2007.
96 Decree No. 170-2006 of December 30, 2006, La Gaceta of December 30, 2006.
97 Law No. 621 of May 16, 2007, La Gaceta No. 118 of June 22, 2007.
98 Decree No. 57-2008 of October 23, 2008, Diario de Centro América No. 45, Vol. 285.
99 Law No. 18.381 of October 17, 2008, Diario Oficial of November 7, 2008.
100 AG/RES. 2607 (XL-O/10), June 8, 2010.
101 Gomes Lund et al. (“Guerrilha do Araguaia) v. Brazil [2010], IACtHR, Ser. C, No. 219, paras.
196–199.
102 Decree No. 534 of December 2, 2010, Diario Oficial No. 70, Vol. 391.
103 Law No. 12.527 of November 18, 2011, Diário Oficial da União of November 18, 2011.
104 Law No. 1.712 of March 6, 2014, Diario Oficial No. 49.084.
105 Law No. 27.275 of September 14, 2014, Boletín Oficial No. 33.472, 1.
106 Law No. 5.282 of September 18, 2015, Registro Oficial No. 180 of September 19, 2014.
107 Access to information Act of 2011, The Official Gazette of Guyana of September 27, 2011.
108 Freedom of information Act of 2017, Official Gazette of Bahamas of March 31, 2017.
of ICCAL. In the remainder of this section, I will discuss some of the most recent
domestic court rulings on the subject.
In ruling 1306 (2013), the Supreme Court of Justice of Paraguay cited inter-
American jurisprudence when determining that the public has a right to know
the salary of public officials. According to the Paraguayan court, this information
was not so confidential as to justify the restriction of the right of access to infor-
mation under the test established by the IACtHR in Claude Reyes v. Chile.
The Costa Rican judiciary has repeatedly defended the right of access to public
information. Even before the enactment of the Costa Rica’s law on transparency
and access to public information,109 the Constitutional Chamber of the Supreme
Court had developed important jurisprudence on access to information based
on the jurisprudence of the IACtHR, which the Costa Rican court gradually ex-
panded until it met the highest regional standards. For example, in one of its key
judgments on the subject, the Costa Rican court held that, under the principle
of maximum disclosure, the State should provide anyone who requested infor-
mation with all the information the State was obligated to keep, regardless of
how cumbersome the searching and systematization of this information might
be. The Costa Rican court did, however, decide to impose the costs of digitiza-
tion or copying on the individual, failing to establish an adequate method for
differentiating between cases in which the costs should be borne by the State and
those in which it could be passed on to the individual.110 In a more recent case,
after the adoption of the law on transparency and access to information, the Costa
Rican court reiterated that there exists a right to receive complete, current, and or-
derly public information within a specified timeframe. The court also highlighted
the progressive nature of the right of access to information, according to which
the State should gradually implement measures to facilitate access, preferably by
computerized means using freeware. In support of its decision, the Costa Rican
court once again cited the case of Claude Reyes et al. v. Chile.111
The transformative impact of the Inter-American System’s jurisprudence
on access to information has been particularly striking in El Salvador. The
Constitutional Chamber of the Supreme Court of Justice of El Salvador has fre-
quently used inter-American standards to advance its jurisprudence and trans-
form El Salvador’s democracy, as the following four judgments demonstrate.
In 2012, the Supreme Court of Justice of El Salvador noted that, according
to inter-American standards, a statutory provision could not introduce new
categories of confidentiality of information into the legal system that were not
originally encompassed in the law.112 The Supreme Court determined that the
109 Executive Order No. 40200 of April 27, 2017, Sistema Costarricense de Información Jurídica.
110 Supreme Court of Justice of Costa Rica, Judgment of March 21, 2014.
111 Supreme Court of Justice of Costa Rica, Judgment of June 30, 2017.
112 Supreme Court of Justice of El Salvador, Chamber of Constitutional Affairs, Judgment of
December 5, 2012.
right of access to public information may be subject to exceptions, but these must
be enshrined in a “formal, prior, written and strict law” based on the principle
of maximum disclosure. In support of its decision, the Salvadoran court cited
Claude Reyes et al. v. Chile and the IACtHR’s Advisory Opinion OC-6/86.
During the following year, the same Chamber relied on similar arguments to
find that the public information officer of the Salvadoran legislature had violated
an individual’s rights of access to public information and petition by (i) refusing
to provide a copy of the 2012 resolutions of the legislature’s board of directors
that authorized the purchases of works of art, Christmas gifts, and alcoholic
beverages; (ii) failing to provide a list of the aforementioned goods, together with
their invoices; and (iii) failing to rule on a request for information about the or-
igin of the funds used to purchase these goods.113
In 2014, the Constitutional Chamber of the Supreme Court of Justice of
El Salvador again interpreted the right of access to information in the light of
inter-American standards, stating that the information contained in a criminal
proceeding in which a former president was investigated is not necessarily con-
fidential.114 In this case, the Salvadoran court linked access to information to the
right to truth, which implies “free access to objective information about events
that have violated fundamental rights” as well as “the possibility and the actual
capacity to investigate, search for, and receive reliable information that leads to
the impartial and full clarification of the facts.”115
Finally, in 2016, the Supreme Court of Justice of El Salvador established that a
lower court’s refusal to unseal a criminal case investigating a collective homicide
from a 1982 military operation in “El Calabozo” violated the plaintiffs’ right to
know the truth.116 The Salvadoran court established a link between the right to
truth and the right of access to information based in part on the IACtHR case 19
Merchants v. Colombia. According to the Inter-American Court’s judgment in
this case, the relatives of victims of serious human rights violations have a right
to know the truth, which entails the right to request and obtain information held
by the State. The Salvadoran court also referred to the IACHR report in the 1999
case of Ignacio Ellacuría, S.J. et al. v. El Salvador117 to establish that victims have a
right of access to information and that society as a whole has a right to know the
truth about serious human rights violations.
In Argentina, domestic legislation does not adequately protect the right of
access to information and so jurisprudence has become the most important
113 Supreme Court of Justice of El Salvador, Chamber of Constitutional Affairs, Judgment of July
25, 2014.
114 Supreme Court of Justice of El Salvador, Chamber of Constitutional Affairs, Judgment of June
13, 2014.
115 Supreme Court of Justice of El Salvador, Judgment of June 13, 2014.
116 Supreme Court of Justice of El Salvador, Chamber of Constitutional Affairs, Judgment of
November 11, 2016.

117 IACHR, “Report No. 136/99,” Fondo: Caso 10.488 of December 22, 1999.
means of guaranteeing this right, as the following four cases illustrate. In 2012,
the Supreme Court of Argentina decided whether the National Institute of Social
Services for Retirees and Pensioners was obligated to provide the Argentine
Association for Civil Rights (Association, or ADC) with detailed information con-
cerning its advertising budget. Even though the ADC was a private entity exercising
public functions, the Argentine court ruled in favor of the Association, relying in
part on the principle of maximum disclosure developed by the IACtHR. Indeed,
the Argentine court cited Claude Reyes et al. v. Chile when it stated that “Article
13 of the American Convention, by expressly providing the right to ‘seek,’ ‘re-
ceive,’ and ‘impart,’ protects the right of everyone to request access to information
under the control of the State, with the exceptions permitted under the American
Convention regime of restrictions.” The Supreme Court of Justice of Argentina also
cited the Office of the Special Rapporteur for Freedom of Expression’s 2003 Annual
Report to establish the close relationship between the right of freedom of expres-
sion and thought and the right of access to public information.118
In 2014, the Supreme Court of Argentina determined whether the Center for
the Implementation of Public Policies Promoting Equity and Growth (CIPPEC)
had a right to access information concerning the beneficiaries of social assistance
from the State.119 In this case, the court held that the State could not invoke the
beneficiaries’ privacy protection to refuse CIPPEC this information, since the data
was not sensitive and the purpose of the request was to exercise public control over
the expenditure of public funds. Again, in support of its decision, the Argentine
court cited inter-American standards. It used the case of Claude Reyes et al. v. Chile
to explain the scope and nature of the right of individuals to request access to
public information and the obligation of the State to guarantee the right to receive
the requested information. The court also cited the IACtHR case Gomes Lund
et al. (“Guerrilha do Araguaia”) v. Brazil, the IACHR’s 2007 Report on Terrorism
and Human Rights, and the Office of the Special Rapporteur for Freedom of
Expression’s 2007 Special Study on the Right of Access to Information.120
The Supreme Court of Justice of Buenos Aires relied on the Supreme Court
of Argentina’s jurisprudence concerning access to information when it sought
to determine whether the failure of the General Directorate of Culture and
Education to respond to a request for information regarding the number of days
that students in certain schools in the country had not had classes due to the ab-
sence of teachers violated the right of access to information.121 The Buenos Aires
court ordered the General Directorate of Culture and Education to provide the
requested information, citing the Office of the Special Rapporteur for Freedom
118 Supreme Court of Justice of the Nation of Argentina, Judgment of December 12, 2012.
119 Supreme Court of Justice of the Nation of Argentina, Judgment of August 5, 2014.
120 The Supreme Court ruled in the same way in cases such as Rubén Héctor Giustiniani v. Y.P.F.
[2015], Arg., Sup., CAF37747/2013/1/RH1.

121 Supreme Court of Justice of the Province of Buenos Aires, of December 29, 2014.
of Expression’s 2004 Annual Report on the right of access to information and

the IACtHR cases Claude Reyes v. Chile and Gomes Lund v. Brazil to support its
argument that “Article 13 of the American Convention on Human Rights, by ex-
pressly providing the rights to ‘seek’ and ‘receive’ ‘information,’ protects the right
of every person to request access to information under the control of the State”
and that “[t]‌his information must be provided without the need to prove a direct
interest in obtaining it or a personal interest, except in cases where a legitimate
restriction applies. Providing information to a person may in turn allow it to cir-
culate in society in such a way that all may become aware of it, access it, and as-
sess it.”
Finally, Court No. 18 of Buenos Aires relied on inter-American standards
when determining whether the government of the City of Buenos Aires had
violated an individual’s right of access to information by providing incomplete
information concerning the value allocated to official advertising in the media.
The court ordered the City to provide the complete information, citing the
IACtHR case Claude Reyes v. Chile and the IACHR Report on Terrorism and
Human Rights in the same manner as the other Argentine courts.
Mexico, for its part, is the birthplace of the right of access to informa-
tion in the region. The country’s Federal Law on Transparency and Access to
Public Government Information was the first of its kind122 and the former
Federal Institute of Access to Public Information (now the National Institute of
Transparency, Access to Information, and Protection of Personal Data) was prob-
ably the most prominent institution in the field in Latin America. Nevertheless,
in some exceptional cases, cases on access to information have reached the
Mexican Supreme Court. In the judicial resolution of these cases, one can see the
influence of the Inter-American System’s jurisprudence on the matter, as shown
by the two following examples.
In the 2011 case of Radilla v. Procaduría General de la República,123 the
Supreme Court of Justice of Mexico determined whether it was legitimate for the
State to withhold information contained in preliminary investigations of crimes
against humanity and/or serious human rights violations. The specific case re-
ferred to facts that had appeared in the IACtHR case Radilla Pacheco v. Mexico,124
in which the Inter-American Court had recognized the right of the victims to
know the results of criminal investigations. The Mexican court concluded its
case by upholding the right of access to information, thereby complying with one
aspect of the IACtHR ruling and, at the domestic level, opening the possibility of
public control over the management of the prosecutors’ offices in cases involving
serious human rights violations and/or crimes against humanity.
122 Federal Law on Transparency and Access to Public Government Information of June 11, 2002,
Diario Oficial of June 11, 2002.

123 Radilla v. Procuraduría General de la República [2011], Mex. Sup., AR-168/2011.
124 Radilla Pacheco v. Mexico [2009], IACtHR, Ser. C, No. 209.
In another case in which a petitioner requested access to information

contained in previous investigations, the Supreme Court of Justice of Mexico
determined that the right of access to information should prevail whenever the
necessity for secrecy of the requested documents could not be demonstrated.
According to the Mexican court, secrecy is allowed only when in the pursuit of
a legitimate aim and necessary for a democratic society. Consequently, the court
found that a rule withholding all documents that form part of the preliminary
investigations, solely because they form part of these investigations, is a dispro-
portionate restriction on the right of access to information. In support of its de-
cision, the Mexican court referred to Article 13 of the American Convention and
Article 19 of the International Covenant on Civil and Political Rights, to OC-5/
85, as well as to the cases Claude Reyes et al. v. Chile, Herrera Ulloa v. Costa Rica,
and Palamara Iribarne v. Chile. The inter-American jurisprudence helped the
Mexican court to underline the importance of the right of access to public infor-
mation, to apply the principle of maximum disclosure, and to formulate a pro-
portionality test determining whether a given restriction is legitimate.
The Constitutional Court of Colombia shows how continual and com-
prehensive use of IAHRS jurisprudence can produce important democratic
transformations. The Colombian court has invoked inter-American standards
concerning access to information in dozens of cases in an attempt to break with
the dominant culture of secrecy maintained by certain sectors of the State, such
as the defense sector. In Judgment T-1025 of 2007, for example, the court de-
termined whether, in a context of serious human rights violations, individuals
could access the names, institutional codes, command lines, and units of secu-
rity forces agents who had participated in allegedly irregular domestic military
operations. The Colombian court found in favor of the individuals in part be-
cause of inter-American standards on access to information. In its judgment, the
Colombian court quoted extensively from Claude Reyes et al. v. Chile, Herrera
Ulloa v. Costa Rica, Palamara Iribarne v. Chile, and Advisory Opinion OC-5/85.
The court also referred to the IACHR’s Declaration of Principles on Freedom of
Expression and the Office of the Special Rapporteur for Freedom of Expression’s
2001 and 2003 reports.125 The Colombian court concluded that secrecy is only
legitimate when it is necessary for a democratic society, which requires that it
conform to the principles of proportionality and reasonableness.
In Judgment T-511 of 2010,126 the Constitutional Court of Colombia found
that the National Police’s refusal to provide two individuals with the information
125 Claude Reyes and others v. Chile [2006], IACtHR; Herrera Ulloa v. Costa Rica [2004], IACtHR;
Palamara Iribarne v. Chile [2005], IACtHR; Compulsory Membership in an Association Prescribed by Law
for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), IACtHR, Advisory
Opinion OC-5/85 of November 13, 1985, Ser. A, No. 5; The Declaration of Principles on Freedom of
Expression [2000], IACHR; IACHR, 2001 Annual Report of the OAS Special Rapporteur for Freedom of
Expression; CHR, 2003 Annual Report of the OAS Special Rapporteur for Freedom of Expression.
126 Constitutional Court of Colombia, Eighth Chamber of Review, Judgment T-511/10 of June 18, 2010.
they had requested concerning the identity of police officers who had been
present during the occurrence of several crimes violated the right of access to
information. Once again, to support its decision, the Colombian court referred
to inter-American standards on access to information and, in particular, to the
IACHR’s Declaration of Principles on Freedom of Expression and the Office of
the Special Rapporteur for Freedom of Expression’s Special Study on the Right of
Access to Information of 2007.
As a final example from the Constitutional Court of Colombia, in Judgment
T-608 of 2013,127 the court interpreted inter-American standards to mean that
the refusal to provide an individual with an explanation for why she was not
granted compensation as a victim of the armed conflict violated her right of ac-
cess to information. Again, the Colombian court cited the 2007 Special Study
on the Right of Access to Information of the Office of the Special Rapporteur for
Freedom of Expression.128
Last but not least, in an emblematic case,129 the Supreme Court of the
Dominican Republic relied on inter-American standards to find that the names
and salaries of public officials constitute public information to which any indi-
vidual may have access. In reaching this decision, the Dominican court explained
that both ACHR Article 13 and Article 19 of the Universal Declaration of Human
Rights form part of the domestic law of the Dominican Republic, since these
instruments were ratified by the legislature. The Dominican court also specifi-
cally discussed the Claude Reyes v. Chile case as supporting the notion that ac-
cess to public information is fundamental to strengthening democracy, since it
enables the public to control the management of public resources.
This chapter has shown the positive relationship and virtuous circle between do-
mestic authorities and international bodies that strengthens the protection of
human rights by highlighting progress on two issues within the right to freedom
of expression: criminalization and access to information. Eleven countries have
repealed desacato laws, nine countries have limited the use of criminal law in cases
of criticism leveled against public officials, and more than twenty-four countries
have recognized the right of access to information. These evolving inter-American
standards on freedom of expression seem to have been consolidated into ICCAL.130
127 Constitutional Court of Colombia, Eighth Chamber of Review, Judgment T- 608/13 of
September 2, 2013.
128 IACHR, Office of the Special Rapporteur for Freedom of Expression, Special Study on the Right
to Access to Information (2007).

129 Constitutional Tribunal of Dominican Republic, Judgment of September 21, 2012.
130 Omar Humberto Maldonado Vargas et al. v. Chile [2015], IACtHR, Ser. C, No. 300.
This chapter does not mean to suggest that progress is necessarily constant
or permanent. The right to freedom of expression has encountered strong op-
position in countries such as Venezuela.131 There have already been significant
setbacks in freedom of expression in Latin America and rising authoritarianism
in the region has created additional threats to this right.
Notwithstanding those challenges, there is no doubt that the relationship be-
tween the Inter-American System and domestic legal systems, including con-
stitutional courts, has generated a transformation in international law and
constitutional law across the region. Although we might not expect to see major
advances in freedom of expression in the coming years, due to the challenge
of rising authoritarianism, we do know that in States in which the judiciary
continues to enjoy sufficient autonomy inter-American standards have curbed
authoritarian attacks on individual rights. International standards lend domestic
courts the legitimacy they need to rebuff authoritarian advances in contexts of
political polarization.
During the COVID-19 pandemic, for example, Brazilian and US courts have
staved off restrictions on the rights of access to information and freedom of ex-
pression. In Brazil, the Supreme Federal Tribunal issued a provisional measure
suspending legislation that limited freedom of information requests.132 In the
United States, the case of Rodríguez-Cotto v. Vázquez-Garced will determine
whether imposing criminal penalties for the dissemination of false informa-
tion related to COVID-19 is unconstitutional.133 Similarly, an Argentine agency
exempted requests for information from the executive branch’s general suspen-
sion of administrative deadlines in response to COVID-19, expressly citing
IACHR Resolution No. 1/2020 in its reasoning.134
The transformative impact of multilevel dialogue has enabled resistance, in no
small number of cases, against government attempts to limit the right of access to
information severely, thereby preserving fragile democratic institutions.
131 A clear example of the way in which the different branches in Venezuela have limited the
right of access to information can be found in the following judgment: Supreme Court of Justice of
Venezuela, Judgments of June 15, 2010, and August 5, 2014.
132 See Ruling from Brazil’s Federal Supreme Tribunal suspending the efficacy of a law that lim-
ited the access to information, http://portal.stf.jus.br/processos/detalhe.asp?incidente=5881853

133 Rodriguez-Cotto v. Vazquez-Garced [2020], District Court, D. Puerto Rico— ongoing pro-
ceedings against 25 L.P.R.A §§ 3654(a) and (f), limiting freedom of expression, <https://www.courtl
istener.com/docket/17179901/rodriguez-cotto-v-vazquez-garced/?filed_after=&filed_before=
&entry_gte=&entry_lte=&order_by=desc> (accessed December 10, 2021).
134 Argentina’s public access to information agency, citing Resolution No. 1/2020 of the IACHR,
stated that access to information administrative requests will not be subject to delays, <https://www.
oas.org/es/cidh/expresion/showarticle.asp?artID=1173&lID=2> (accessed December 10, 2021).
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
By Edison Lanza
1. Introduction
This chapter provides an overview of the development of the right to freedom of

expression in the Inter-American System and its impact on the region. It contains
a systematization of the principles that the Inter-American Human Rights System
(IAHRS) has helped to consolidate as minimum guarantees for the exercise of this
right through the decisions of its main bodies: the Inter-American Commission
on Human Rights (IACHR), its Office of the Special Rapporteur for Freedom of
Expression, and the Inter-American Court of Human Rights (IACtHR).
In a region with a long history of dictatorships and authoritarianism rooted in
different ideological leanings and doctrines, the liberties derived from the right
to freedom of expression have been subject to manipulation and suppression
in virtually every country in the hemisphere for much of the twentieth century.
However, one of the major achievements of the Inter-American System over the
past thirty years has been to build a common inter-American legal framework
for the respect and promotion of rights linked to freedom of expression and the
strengthening of democratic systems.
Perhaps the most perceptible impact is the expansion of these guarantees and
principles in the different legal systems of Latin America and the Caribbean
through national court decisions and their implementation through legislation—
as described in a few specific cases in this chapter.1 Although the region has not
been spared the consequences of governments turning toward authoritarianism,
1 For a broader analysis on how Inter-American decisions impact national contexts: Oscar Parra
Vera, “El impacto de las decisiones interamericanas. Notas sobre la producción académica y una
propuesta de investigación en torno al empoderamiento institucional.” Armin von Bogdandy, Héctor
Edison Lanza, Impact of the IAHRS Principles on Freedom of Expression and the Need for Their Expansion in the Digital
Age In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan,
Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Edison Lanza 2024.
DOI: 10.1093/oso/9780197744161.003.0026
496 Edison Lanza
it is important to note that these principles have become the yardstick for prog-
ress and are used to denounce measures that governments have taken to under-
mine fundamental freedoms.
This chapter also examines how the fundamental principle of the right to
freedom of expression developed by the Inter-American System has been
adapted to the development of information and communication technologies,
in particular with the advent of the so-called “digital arena” that the internet has
created. The new virtual and cross-border space that characterizes communi-
cation between people dovetails perfectly with the wording of Article 13 of the
American Convention, which states that freedom of expression can be exercised
“regardless of frontiers” and “or through any other medium of one’s choice.”
The emergence of the internet and a new ecosystem of intermediaries—some
of them driven by machines or intelligent software—have made it possible for
millions of people to be connected and participate in the public sphere, but it has
also forced the IAHRS to rethink its principles in a more challenging context.
The revolution in communication technologies is an inevitable factor that
has radically changed the means of exercising the rights and freedoms to seek,
receive, and impart information and ideas. When the IACHR and the IACtHR
began to cut through the Gordian knot of the right to freedom of expression and
the role of the media in the late 1980s, such a revolution had yet to take place.
In the last decade, however, the Inter-American System has contributed its own
interpretations and standards (considered international soft law) with the aim of
providing content to the right to freedom of expression on the internet in general
and on social media networks especially. Through the thematic reports on the
enjoyment of these rights on the internet—two of which have been prepared by
the Office of the Special Rapporteur for Freedom of Expression of the IACHR—
and the Joint Declarations published by the Rapporteurs for Freedom of
Expression from the United Nations, the IACHR, the Organization for Security
and Co-operation in Europe (OSCE), and the African Commission on Human
Rights, the IAHRS has had a significant influence on internet policy debates and
on those national courts addressing these types of challenges.2
This chapter concludes by outlining a series of current challenges to the ex-
ercise of human rights in the digital arena and the questions that the System
must begin to consider in order to help shape the constantly evolving inter-
American legal framework in this field. Undoubtedly, the digital age is different
from previous times, and the opportunities to affect freedoms and rights through
Fix-Fierro, and Mariela Morales Antoniazzi (coords.), Ius Constitutionale Commune en América
Latina. Rasgos, potencialidades y desafios (UNAM 2014), 383–420.
2 Sejal Parmar, “The Significance of the Joint Declaration on Freedom of Expression” [2019], 37(2)
Netherlands Quarterly of Human Rights 179.

Freedom of Expression in the Digital Age 497
technology have increased. The System, therefore, must begin to interpret inter-
American instruments in order to address these new risks.
2. The Inter-American Legal Framework on Freedom

of Expression and Its Impact on the Region’s Legal Systems
and Case Law
For the Inter-American System, freedom of expression is a fundamental right

that is essential to the functioning of democratic political systems.3 This is be-
cause this right serves three basic functions: it safeguards the primary function
of communicating and thinking about the world from our own perspectives,4 it
plays a central and structural role in the functioning of democratic institutions,5
and it is a critical tool for the exercise of other human rights.6 As the IACtHR
held its Advisory Opinion 5/85:
Freedom of expression is a cornerstone upon which the very existence of

a democratic society rests. It is indispensable for the formation of public
opinion. It is also a conditio sine qua non for the development of political
parties, trade unions, scientific and cultural societies and, in general, those
who wish to influence the public. It represents, in short, the means that enable
the community, when exercising its options, to be sufficiently informed.
Consequently, it can be said that a society that is not well informed is not a
society that is truly free.7
In the inter-American context, this right has a dual dimension: an individual

dimension, consisting of the right of each person to express his or her own
thoughts, ideas, and information; and a collective dimension, consisting of a
society’s right to seek and receive any information, to know the thoughts, ideas,
and information of others, and to be well informed.8 This dual dimension gives
3 IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/
85 of November 13, 1985, Ser. A No. 5, para. 50; IACHR, “Annual Report 1994,” Office of the Special
Rapporteur for Freedom of Expression of the IACHR (1994), Chapter V.
4 IACHR, “Inter-American Legal Framework Regarding the Right to Freedom of Expression,”
Office of the Special Rapporteur for Freedom of Expression de la IACHR (2010), para. 7.
5 Ibid., para. 8.
6 Ibid., para. 9.
7 Cf. “Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism” (n. 3), para. 70; for an affirmation of this point, see also San Miguel Sosa, et al. v. Venezuela
8 Cf. Kimel v. Argentina [2008] IACtHR, Ser. C No. 177, para. 53; Claude-Reyes et al. v. Chile
[2006], IACtHR Ser. C No. 151, 2006, para. 75; López Álvarez v. Honduras [2006] IACtHR, Ser. C No.
141, para. 163; Herrera Ulloa v. Costa Rica [2004] IACtHR, Ser. C No. 107, para.108; Ivcher Bronstein
v. Peru [2001] IACtHR, Ser. C No. 74, para. 146; Ricardo Canese v. Paraguay [2004] IACtHR, Ser. C
498 Edison Lanza
rise to the principle that both must be preserved: it is unacceptable under inter-
American standards to undermine one of these dimensions while claiming to
preserve the other.9
The importance of the right to freedom of thought and expression for the
functioning of the system is reflected in the development of reinforced standards
of protection for all speech ab initio. This includes all kinds of ideas, opinions,
and information, including those that “offend, are unwelcome or shock the State
or any sector of the population.”10 But the instrumental nature of the right has
meant that certain types of speech are specially protected. This includes political
speech and speech on matters of public interest,11 speech about public officials
in the exercise of their duties, speech about candidates for public office,12 and
speech expressing essential elements of someone’s personal identity or dignity.13
Not all speech enjoys such special protection. Article 13.5 of the American
Convention expressly allows for the penalization of a particular kind of
speech: war propaganda and hate speech that constitutes incitement to lawless
violence or to any other similar action against any person or group of persons on
any grounds including those of race, color, religion, language, or national origin.
The IACHR has stated:
[T]‌he imposition of sanctions for the abuse of freedom of expression under

the charge of incitement to violence (understood as the incitement to commit
crimes, the breaking of public order or national security) must be backed up
by actual, truthful, objective and strong proof that the person was not simply
No. 111, para. 77; “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile [2001] IACtHR, Ser.
C No. 73, 2001, para. 64; “Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism” (n. 3), para. 30.
9 Cf. ibid., para. 33.

10 Cf. Herrera Ulloa v. Costa Rica (n. 8), para. 113; “The Last Temptation of Christ” (Olmedo Bustos
et al.) v. Chile, (n. 8), para. 69; Ríos et al. v. Venezuela [2009] IACtHR, Ser. C No. 194, para. 105;
Perozo v. Venezuela [2009] IACtHR, Ser. C No. 195, para. 116; see also Kimel v. Argentina (n. 8), para.
88: “In the domain of political debate on issues of great public interest, not only is the expression of
statements which are well seen by the public opinion and those which are deemed to be harmless
protected, but also the expression of statements which shock, irritate or disturb public officials or any
sector of society. In a democratic society, the press must inform extensively on issues of public in-
terest which affect social rights, and public officials must account for the performance of their duties.”
11 Cf. Inter-American Legal Framework Regarding the Right to Freedom of Expression (n. 4),
paras. 33 et seq.; see also Kimel v. Argentina (n. 8), para. 57; Claude Reyes et al. v. Chile (n. 8), paras.
84–87; Palamara Iribarne v. Chile [2005] IACtHR, Ser. C No. 135, para. 83; Herrera Ulloa v. Costa
Rica (n. 8), para. 127.
12 Kimel v. Argentina (n. 8), paras. 86–88; Palamara Iribarne v. Chile (n. 11), para. 83; “The Last
Temptation of Christ” (Olmedo Bustos et al.) v. Chile (n. 8), para. 69; Ivcher Bronstein v. Peru (n. 8),
paras. 152, 155; Ricardo Canese v. Paraguay (n. 8), para. 83; Herrera Ulloa v. Costa Rica (n. 8), paras.
125–129; Claude Reyes v. Chile (n. 8), para. 87; Tristán Donoso v. Panama [2009] IACtHR, Ser. C No.
193, para. 115.
13 Cf. “Inter-American Legal Framework Regarding the Right to Freedom of Expression” (n. 4),
para. 53; see also López Álvarez v. Honduras (n. 8), para. 169.
issuing an opinion (even if that opinion was hard, unfair or disturbing), but that
the person had the clear intention of committing a crime and the actual, real
and effective possibility of achieving this objective.14
Child pornography is also prohibited in absolute terms by the Convention on

the Rights of the Child (Article 34 (c)), the Optional Protocol to the Convention
on the Rights of the Child on the sale of children, child prostitution, and child
pornography, and International Labour Organization Convention No. 182 on
the worst forms of child labor (Article 3 (b)).15
The protection that the Inter-American System affords to freedom of ex-
pression is not absolute. The inter-American standards allow for limitations or
restrictions to this right, but they must meet strict requirements as these limita-
tions are designed to be exceptional.16 Thus, in order for a restriction on the right
to freedom of expression to be admissible:
(1) the limitation must have been defined in a precise and clear manner by a
law, in the formal and material sense; (2) the limitation must serve compelling
objectives authorized by the Convention; and (3) the limitation must be
necessary in a democratic society to serve the compelling objectives pursued,
strictly proportionate to the objective pursued, and appropriate to serve said
compelling objective.17
The system has also rejected prior censorship in near absolute terms and
imposes an obligation on States not to take actions or measures that indirectly
affect freedom of expression.
Finally, the inter-American standards highlight the importance of States to
promote diversity and pluralism in the media ecosystem where democratic
public debates occur.18 In this regard, the Inter-American Commission has said
that “States must prevent public or private monopoly of ownership and control
over media outlets, and must promote different groups’ access to radio and tel-
evision frequencies and licenses, whichever the groups’ technological means
might be.”19 The IACtHR has held that States must:
14 Ibid., para. 58.

16 Cf. Lagos del Campo v. Peru [2017] IACtHR, Ser. C No. 340, para. 98; Tristán Donoso v. Panama
(n. 12), para. 110; Usón Ramírez v. Venezuela [2009] IACtHR, Ser. C No. 207, para. 48; Kimel
v. Argentina (n. 8), para. 54.
17 “Inter-American Legal Framework Regarding the Right to Freedom of Expression” (n. 4), para.
67; affirming this jurisprudence, see, e.g., Lagos del Campo v. Peru (n. 16), para. 102.
18 “Inter-American Legal Framework Regarding the Right to Freedom of Expression” (n. 4), paras.
224 et seq.
500 Edison Lanza
minimize the restrictions to information and balance, as much as possible,

the participation of the different movements present in the public debate,
promoting informative pluralism. The protection of the human rights of
whoever faces the power of the media, who must exercise the social task it
develops with responsibility, and the effort to ensure structural conditions that
allow an equal expression of ideas can be explained in these terms.20
The inter-American standards developed by the IACtHR and the IACHR

are, as a whole, a powerful legal framework for the protection of freedom of
expression—one of the rights without which democratic systems cannot flourish.
According to the Court, Article 13 offers one of the most robust guarantees of this
right in comparative terms, including Article 19 of the International Covenant on
Civil and Political Rights and Article 10 of the European Convention on Human
Rights.21 These guarantees have been strengthened by local courts adopting the
protection standards of the Inter-American System. One of the most visible
impacts of the Inter-American System lies in the jurisprudential dialogue be-
tween national high courts and the standards of the Inter-American System, and
vice versa. This has helped to broaden and strengthen the content of the constitu-
tional norms and regional treaties related to this right.
The Office of the Special Rapporteur for Freedom of Expression systematized
relevant national case law on freedom of expression, starting with the set of
court decisions documented as best practice in its Annual Reports for the 2013–
2016 period.22 The region’s courts have addressed a range of issues, including
cases involving public officials and the judicial protection of specially protected
speech, particularly political speech; protections against the criminalization of
circulating information and opinions of public interest; developing the doc-
trine of actual malice to resolve conflicts between freedom of expression and the
honor of public officials and persons involved in public debates; and protecting
journalists against the pressure to reveal the identity of their sources, among
others. With respect to emerging issues, the Office has reported the growing lit-
igation of matters related to freedom of expression on the internet (including
blocking, downloading, and de-indexing content), privacy, and digital surveil-
lance, on which the case law is still in the early stages of development.
In one of the cases examined, upon considering a journalist’s extraordinary
petition for cassation, the Supreme Court of Colombia exhaustively examined
the function of freedom of expression in its political dimension, citing the
case law of the country’s Constitutional Court. The judgment underscored
20 Ríos et al. v. Venezuela (n. 10), para. 106.

22 Cf. IACHR, “National Case Law on Freedom of Expression and Access to Information,” Office of
the Special Rapporteur for Freedom of Expression of the IACHR (2017).

the importance of freedom of expression as a precondition for effective social

participation, the improvement of public policies, and the guarantee of robust
discussions on matters of general interest. It held that freedom of expression:
promotes sociopolitical stability, by providing a safety valve for social

dissent . . . protects the political minorities that are active at a given time,
preventing them from being silenced by prevailing or majority forces . . . helps
shape public opinion on political matters and the consolidation of a properly
informed electorate.
The Chamber of Criminal Cassation of the Supreme Court of Colombia

thus concluded that the “profound” constitutional and international protection
of freedom of expression “is justified precisely because of those lofty goals of
solidifying participatory democracy.”23
An illustrative example of these kinds of national decisions regarding the pro-
tection of freedom of expression on the internet is the June 4, 20144 opinion
(voto-vista) delivered by Judge Nancy Andrighi of the Superior Court of Justice
(Superior Tribunal de Justiça (STJ)) of Brazil, in which the high court’s majority
ruled to set aside an injunction against an internet search service provider.
Judge Andrighi held that guardianship of the virtual environment demands
“increased care” and that as a consequence “any type of restriction must be care-
fully considered” so that it does not affect “the perfect functioning” of the Web.
She added that “in the case of Internet search service providers, the imposition
of implicit or subjective obligations would entail, potentially, the restriction
of the search results, which would be to the detriment of all user[s]‌.” She also
highlighted the importance of online search services in a world in which the
daily lives of millions of people depend on information that is on the internet and
would be difficult to find without the search tools offered by search sites.24
3. Challenges and Restrictions to the Exercise of Freedom

of Expression on the Internet
At the beginning of the twenty-first century, traditional mass media continue to

play a crucial role in investigating and publishing information of public interest,
promoting government accountability, and engendering debates on all kinds of
issues. However, internet platforms and services now represent a massive con-
duit for public debate and information of interest to citizens. These services
23 Ibid., para. 14.

502 Edison Lanza
facilitate the expression of individuals and social groups, allow for more hori-
zontal communication, and promote open and robust public debate in general
because the decentralized spaces into which everyone can pour information and
opinions become more difficult to control. The online environment has also pro-
vided “ideal conditions for innovation and the exercise of other fundamental
rights such as the right to education and free association.”25
The flip side of this positive aspect of the internet, however, involves challenges
linked both to the power of States to interfere in the circulation of information
and to the growing role of private platforms that facilitate communication by
moderating content. Unquestionably, challenges in the region include direct and
indirect interference by some States to prevent the circulation of information
and ideas that are not in their interest. There is also the difficulty of preventing
or discouraging some governments, individuals, or groups from making abu-
sive comments or using social media with the deliberate intent to deceive or pro-
mote violence. Some States have also increased their technological capacity to
block entire websites, as well as ordering that internet access be suspended at
certain times or in certain areas, or enacting disproportionate legislative meas-
ures to order the removal of specific content. Other challenges include the new
role of private actors as intermediaries in the flow of information, the liability
of intermediaries for content produced by third parties, and the viral spread of
problematic speech on social networks, such as hate speech or mass disinfor-
mation campaigns. These are some of the issues modern democracies face in
regulating their digital public sphere.
Second, there is a consensus in international law on the powerful role that
private actors now play in the circulation of information. These private actors
are companies that provide services or platforms that facilitate the exchange of
information, ideas, and opinions among citizens, government officials, organ-
izations, and so on. Indeed, with billions of people participating in the digital
arena, the internet is providing a new way of circulating (or “sharing”) infor-
mation. Traditional media’s own editorial selection, while not disappearing, has
been largely replaced by the terms and conditions, or “community rules,” that
individuals agree to when they open an account on these websites. These com-
munity rules are also implemented through content-recommendation systems
based on automated algorithms that operate on the basis of artificial intelligence.
These automated tools analyze the information, allow or block content, and
make recommendations to users about content that—according to data collected
from their online activity—people follow based on their web browsing habits.
25 IACHR, “Freedom of Expression and the Internet,” Office of the Special Rapporteur for
Freedom of Expression of the IACHR (2013), para. 2.

The decentralized network of the internet, which entails reciprocal communi-

cations between senders and receivers of communications, has been dominated
by commercial actors whose investments have enabled the development of var-
ious public forums on a previously unimaginable scale but whose actions, for
better or worse, shape public debate and in part determine what citizens con-
sume, read, and watch.
A third, growing challenge is the ability to track “digital footprints,” or data
that people leave behind when they use the internet. As part of the very design
of the internet (in the form of a network) the traffic users create, unlike analog
communications, leaves traces that are stored and used by social networks in
line with their business model, which consists of selling advertising through
user preferences. This has created an advertising industry with highly targeted
messages that depend largely on amassing and exploiting peoples’ digital
footprints; at least one result of this development concerns a number of novel
challenges to privacy rights. Some recent cases show that the data stored by pri-
vate actors have been used not only to sell commercial advertising but also to
send targeted political messages and disinformation during election periods.26
This feature of the internet has also been exploited by State actors engaging
in the surveillance or monitoring of journalists, activists, and dissidents,
jeopardizing elements of Article 11 of the American Convention, which
safeguards privacy from interference by both State and non-State actors—
particularly when individuals are exercising fundamental rights such as the
freedom to investigate, the freedom to contact others to seek and impart infor-
mation, and in connection to the freedoms of association, assembly, and political
participation.
4. Principles on Freedom of Expression and the Internet

Developed by the Inter-American Human Rights System
Over the past ten years, the IACHR and the Office of the Special Rapporteur
for Freedom of Expression have been developing interpretations and princi-
ples, especially in their thematic reports and decisions, applicable to violations
and conflicts of rights in the digital arena. In addition, national courts in the
Americas and Europe, the European Court of Human Rights, and to a lesser ex-
tent the Inter-American Case System, have established jurisprudential criteria
(though not always uniform) on these issues.
26 IACHR, “Guide to Guarantee Freedom of Expression Regarding Deliberate Disinformation
in Electoral Contexts,” Office of the Special Rapporteur for Freedom of Expression of the IACHR
(2019).
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In the following I discuss some of these principles that are best suited to re-
spond to these challenges, and which have been developed within the paradigm
of the decentralized network of the internet. It is important to emphasize that
these principles are not only theoretical developments but are being actively
articulated in dialogue with the best practices adopted by several States and
promoted by civil society, in legislation and in court decisions. In this regard,
and in light of the American Convention and other IAHRS instruments, there
is a hemispheric consensus on the importance of maintaining a free, open, and
inclusive internet. These principles are also tied to State obligations to prohibit
prior censorship, to promote pluralism of information and the debating of ideas,
and to encourage citizen participation required by democratic systems.
4.1. Universal Internet Access, Diversity, and Pluralism
All of the benefits to public debates that the internet has brought—that is,
increased access, horizontal participation, and freedom to access and share
information—can only be enjoyed if citizens have access to the internet. From
the very beginning this has represented a major challenge in the Americas due to
widespread social inequality. While internet access has expanded over the years,
especially through the rise of mobile phone use, public policies are still needed
to ensure equitable and affordable access for all citizens. In particular, the ex-
pansion of mobile telephony and smartphones in recent years have facilitated
Internet access to sectors of the population that were previously excluded from
enjoying, for example, the rights to information and expression and access to
knowledge and education.
Nevertheless, when States’ public policies for social inclusion are weakened,
internet coverage is left to the private sector, which has tended to promote
agreements between Internet service providers and telecommunication
companies known in practice as “zero rating.” These agreements typically offer
the most disadvantaged sectors of the population an Internet experience limited
to popular and mass services under privileged data usage conditions.
Principle 2 of the IACHR’s Declaration of Principles on Freedom of Expression
establishes:
All people should be afforded equal opportunities to receive, seek and impart
information by any means of communication without any discrimination
for reasons of race, color, sex, language, religion, political or other opinions,
national or social origin, economic status, birth or any other social condition.27
27 IACHR, “Declaration of Principles on Freedom of Expression” (2000), Principle 2.

In addition, the IACtHR has underscored the obligations of diversity and plu-
ralism that should guide States in regulating the communications ecosystem in
which public debates take place, in relation both to the obligation to prevent
public and private monopolies and to the promotion of access to that ecosystem
by different groups “[whatever their] technological means [may] be.”28 The
Court emphasized the obligation to foster information pluralism29 and called
attention to the need for the media to operate under conditions that meet the
requirements of freedom of expression.30
The digital divide between those who can afford internet access and take ad-
vantage of the benefits of this technology and those who, for economic, gener-
ational, or geographical reasons, do not yet have full access to it, poses a major
obstacle to the enjoyment of the freedoms and knowledge that the internet
brings. For this reason, several countries in the region have moved forward with
programs to include more people on the internet, from schools to remote rural
areas.31
In this field, the question of access is governed by the general principle of
nondiscrimination, according to which States must:
adopt affirmative measures (legislative, administrative, or [any other kind]),

to reverse or change existing discriminatory situations that may [undermine]
certain groups’ effective enjoyment and exercise of the right to freedom of
expression [under conditions of equality and non-discrimination].32
The Office of the Special Rapporteur considered that Principle 2 of the

Declaration should be interpreted in such a way as to create consequences and
positive obligations for States to take steps to promote universal access:
28 Cf. “Inter-American Legal Framework Regarding the Right to Freedom of Expression” (n. 4),
para. 224.
29 Cf. Ríos v. Venezuela (n. 10), para. 106; Granier et al. (Radio Caracas Television) v. Venezuela
[2015] IACtHR, Ser. C No. 293, para. 142: “the plurality of the media and news constitutes an effective
guarantee of freedom of expression, and the State has a duty to protect and ensure this under Article
1(1) of the Convention, by minimizing restrictions to information and encouraging a balanced par-
ticipation, and by allowing the media to be open to all without discrimination, because the idea is
that 'no individuals or groups are, a priori, excluded.’ ”
30 Cf. “Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism,” Advisory Opinion 5/85 (n. 3), para. 34.

31 See the Constitution of the United Mexican States, Chamber of Deputies, February 5, 1917;
most recent amendments published on December 27, 2013, Art. 7; Library of the National Congress
of Chile. Law No. 20.435. Amending Law No. 17.336 on Intellectual Property of August 28, 1970.
May 4, 2010. Arts. 85L to 85U and 71A to 71S; Congress of Argentina. Law 26.032. Internet Service.
Establishes that searching for, receiving, and disseminating information and ideas through the
Internet falls within the constitutional guarantee of freedom of expression. June 16, 2005. Art. 1;
Congress of Brazil. Law No. 12.965/2014 (Civil Rights Framework for the Internet [Lei do Marco Civil
da Internet]).
32 IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of Expression
(2008), Chapter III, 230.

506 Edison Lanza
not only to infrastructure but also the technology necessary for its use and
to the greatest possible amount of information available on the Internet;
to eliminate arbitrary barriers to access to infrastructure, technology and
information online, and to adopt measures of positive differentiation to allow
for the effective enjoyment of this right for individuals or communities who
face marginalization and discrimination.33
In addition, the principles of diversity and pluralism that the Inter-American

System has developed are also related to the issue of access, since the open and
decentralized architecture of the internet has made it possible to lower the entry
barriers to participate in public debates; it is up to States to preserve “the Internet’s
ideal conditions for promoting and maintaining informational pluralism.”34
4.2. Principle of Net Neutrality
The IACHR and its Office of the Special Rapporteur have documented numerous
cases in which a State has ordered public and private telecommunications
companies to remove specific content and even entire media outlets from the
internet. Another censorship practice has led authoritarian governments to shut
down, block, or reduce the intensity of the internet signal during certain protest
periods or in response to messages that they consider critical or contrary to their
policies. All of this must be interpreted in light of the prohibition against prior
censorship established in Article 13.2 of the Convention. Similarly, civil society
organizations in the hemisphere have warned of the possible violation of this
principle by private sector internet service providers. The growing “bandwidth”
demand for different services has led providers to prioritize traffic from certain
packages over others in order to offer a better service. This technical possibility
could be used, for example, for services that handle priority traffic, which in ef-
fect could result in a two-speed network: one that works faster but is limited to
the most popular or powerful services, and a slower one through which all serv-
ices can be accessed but at a lower speed. This would violate a fundamental prin-
ciple of the network architecture.
One international law response to this new reality, also provided for in the
Inter-American System, has been to develop the principle of net neutrality.
This principle, aimed at preserving the free flow and plurality of information
and opinions on the web, is in part an application of the principles of neutrality
33 “Freedom of Expression and the Internet” (n. 25), para. 15; cf. “Annual Report 2017,” para. 7.
34 “Freedom of Expression and the Internet” (n. 25), para. 19; cf. “Annual Report 2017” (n. 33),
para. 8.
and nondiscrimination required of States under international conventions re-

garding all kinds of ideas and speech.35 One of the central pillars of freedom of
expression is the principle that the State must be neutral toward the content of
information and opinions: laws or measures must not seek to reward or punish
people for speech acts based on their content.36 This means, for example, that
when adopting a restriction, the State would be unable to limit only some of
the content involved in the message, such as religious or ideological elements;
nor could it, in the words of the Court, use direct or indirect mechanisms to re-
strict freedom of expression, such as allocating government advertising or radio
frequencies based on editorial decisions. States are bound by a general principle
of nondiscrimination. Furthermore, in accordance with the social dimension of
the law, which allows access to all kinds of ideas and information ab initio, States
cannot engage in “discriminatory treatment [favoring] certain content [on] the
Internet [over content] distributed by certain sectors of society.”37
The horizontal nature of the network, the exponential multiplication of
sources of information and the weakening of traditional gatekeepers have made
public debates freer and more open but also more chaotic and difficult to control.
This is partly a result of network design: being decentralized, “data packets” sent
from one device to another seek the most efficient way to reach their final desti-
nation through the network.38 This “maximizes the use of the networks.”39
The value of this network design therefore is twofold: first, it is efficient in terms
of traffic; and second, it offers freedom, since the principle of content neutrality
allows for a more open and robust public debate. The circulation of ideas, infor-
mation, and opinions is essential for citizens to freely choose their preferences
under the “free marketplace of ideas” paradigm.40 The Joint Declaration of 2011
reaffirmed this principle, stating that “there should be no discrimination in the
treatment of Internet data and traffic, based on the device, content, author, origin
and/or destination of the content, service or application.”41 The objective of this
principle is to ensure that the internet is not “subject to conditions, or directed
or restricted, such as blocking, filtering or interference.”42 Several countries in
the region have established the general principle of neutrality in their legislation.

36 Cf. IACHR, “Inter-American Legal Framework Regarding the Right to Freedom of Expression”
(n. 4), para. 30.
37 “Freedom of Expression and the Internet” (n. 25), para. 21.
38 Cf. “Freedom of Expression and the Internet” (n. 25), para. 27: “Net neutrality is part of the orig-
inal design of the Internet. It facilitates access to and circulation of content, applications and services
freely and without any distinction.”
39 “Annual Report 2017” (n. 33), para. 21.
40 Cf. Abrams v. United States, 250 US 616 (1919), Holmes, J., dissenting.
41 OSCE, Joint Declaration on Freedom of Expression and the Internet (2011), point 5.a.
42 IACHR, “Freedom of Expression and the Internet” (n. 25), para. 25.
508 Edison Lanza
Thus, for instance, in Chile, Law 20.453 established that communication service
providers cannot:
arbitrarily block, interfere with, discriminate against, hinder or restrict the right of
any Internet user to use, send, receive, or offer any content, application, or lawful
service through the Internet, or to engage in any other type of lawful activity or use
through the network. In this regard, they must offer every user a type of Internet
access service or connectivity to the Internet access provider, as appropriate, that
does not arbitrarily differentiate content, applications, or services based on the
source of origin or ownership, taking into account the different configurations of
the Internet connection according to the contract in force with the users.43
In 2014, the National Congress of the Argentine Republic passed Law 25.078
that guaranteed every user the right to “access, use, send, receive, or offer any
content, application, service, or protocol through the Internet without any type
of restriction, discrimination, distinction, blocking, interference, hindrance,
or degradation.”44 For its part, in 2014 Brazil enacted the Civil Framework for
the Internet, comprehensive legislation that (among other things) expressly
safeguards net neutrality.45 The United States did the same in a policy statement
issued by the Federal Communication Commission and through State legisla-
tion. The Office of the Special Rapporteur considers it important “that authorities
guarantee the validity of this principle through adequate legislation”46 since it is
“fundamental for guaranteeing the plurality and diversity of the flow of informa-
tion.”47 As the IACtHR has held, “the State must not only minimize restrictions
on the [flow] of information, but also [balance], to the greatest possible extent,
[the inclusion of different perspectives] in the public debate, fostering [pluralism
of information]. Consequently, [fairness must govern] the flow of informa-
tion.”48 This general principle could give way when it is:
strictly necessary and proportional in order to preserve the integrity and

security of the network; to prevent the transmission of online content at the
express request—free and not incentivized—of the user; and to temporarily
and exceptionally manage network congestion. In this latter case, the measures
employed should not discriminate between types of applications or services.49
43 National Congress of Chile, Law No. 20.453, 2010, Art. 1.

44 National Congress of the Argentine Republic, Law No. 25.078, 2014, Art. 56.
45 Cf. National Congress of the Federative Republic of Brazil, Law No. 12.965 (Civil Rights
Framework for the Internet), 2014, Art. 3. IV.

46 Ibid., para. 26.
47 Ibid., para. 28.
48 Kimel v. Argentina (n. 8), para. 57; Fontevecchia and D’Amico v. Argentina [2017], IACtHR, para. 45.
4.3. Content Blocking and Filtering
The decentralized nature of the internet makes it very difficult to control the
flow of information. Taking down a website does not prevent the content from
being replicated on a different site within minutes. Removing a video from an
online video-sharing platform does not guarantee that it will not (in a slightly
modified form) be uploaded again or circulated on other platforms (such as
encrypted messaging services) or information management systems (such as
peer-to-peer networks). This difficulty in controlling what circulates on the
internet has allowed citizens of closed societies to organize and demand their
rights by breaking through official barriers to information. However, the flip side
of this feature is that plainly illegal content such as child pornography or content
inciting acts of terrorism can be distributed through channels that are difficult to
control. This has triggered a variety of reactions: internet service providers have,
for example, developed automated mechanisms to identify illegal content, and
States and law enforcement agencies have deployed investigative teams that are
constantly scanning the web to remove and prosecute disseminators of child por-
nography. The Special Rapporteurs for freedom of expression have stated that:
forcing the blocking or suspension of entire websites, platforms, channels, IP

addresses, domain name extensions, ports, network protocols, or any other kind
of application, as well as measures intended to eliminate links, information and
websites from the servers on which they are stored, all constitute restrictions
that are prohibited and exceptionally admissible only strictly pursuant to the
terms of Article 13 of the American Convention.50
In this regard, the blocking of online content is an act that very much resembles
prior censorship, something that the Inter-American System has considered im-
proper in near-absolute terms.51
Indeed, as the Inter-American Commission has maintained, the practice of
content blocking or filtering is only acceptable in exceptional cases involving
clearly illegal content or speech that is not covered by the right to freedom of
expression.52 The typical example of this kind of speech is child pornography.
To combat the exploitative and abusive practices behind this type of material,
50 “Freedom of Expression and the Internet” (n. 25), para. 84; Joint Declaration on Freedom of
Expression and the Internet (n. 41), point 3.a.

51 In OC5/85, the Court held that prior censorship is a violation that is “extreme not only in that
it violates the right of each individual to express himself, but also because it impairs the right of each
person to be well informed, and thus affects one of the fundamental prerequisites of a democratic so-
ciety.” The only exception to this general principle is provided for in Article 13(4) of the Convention,
which states: “Notwithstanding the provisions of paragraph 2 above, public entertainments may be
subject by law to prior censorship for the sole purpose of regulating access to them for the moral pro-
tection of childhood and adolescence.”
52 Cf. “Freedom of Expression and the Internet” (n. 25), para. 85.
510 Edison Lanza
most countries block websites that contain or disseminate it. In these cases,
the measure must be subjected to a “strict balance of proportionality” to en-
sure that it does not “affect legitimate speech that deserves protection.”53 Speech
that enjoys the presumption of protection cannot be subjected to this type of
measure, which (by definition) would usually be considered draconian.54 In this
regard, the Office of the Special Rapporteur has expressed concern and found
the practice of blocking specific websites or applications, sometimes under court
order, to be disproportionate, with “little or no consideration for the impact of
such measures on the right to freedom of expression online.”55
4.4. Intermediary Liability
Before the internet, the mainstream media served as a highly influential vehicle
in public debates, with the ability to select and edit the information they made
available to the public. As defined in various Inter-American Court decisions,
the media enable society to be informed and thus made the exercise of freedom
of expression a reality. While that function has not disappeared in the age of the
internet, it has migrated (at least partially) to large online platforms that were
developed to facilitate the flow of information and ideas and enable anyone to dis-
seminate and share content. Even though these intermediaries do not explicitly
intervene in the editing of content, they have a growing influence on what we can
access on it due to the requirements imposed by States and content moderation by
social media companies, pursuant to their terms of service and community rules.
Indeed, major internet platforms, social networks, and intermediary serv-
ices are having an ever-greater impact on online public discourse. Although
there are different platforms, in general social networks have specialized par-
ticular functions, such as providing free access to content produced and shared
by third parties, whether they are people close to users (family, friends, leaders,
companies) or producers of information such as the media, artists, and so
on. In the case of search engines, they facilitate users’ search for information
by indexing the millions of websites hosted on the internet. In return, these
companies have captured the attention of three billion people and control a large
part of the targeted advertising market through users’ digital footprints.
Their central role in the flow of information has turned these intermediaries
into nodal points of control that are targeted by State actors seeking to shape public
debates by directing, restricting, or censoring public conversation.56 The private
53Ibid., para. 85.

54Cf. ibid., para. 90.
55 Cf. “Annual Report 2017” (n. 33), para. 86; IACHR, “Annual Report 2015,” Office of the Special
Rapporteur for Freedom of Expression (2015), para. 264.

56 Cf. “Freedom of Expression and the Internet” (n. 25), para. 93.
decisions these services make in order to meet their objectives and contractual
terms also have a significant impact on public discourse. This creates challenges
from the standpoint of freedom of expression and the legal liability that applies to
the online ecosystem. There is a consensus that the incentives created by a system
that imposes subsequent liabilities on intermediaries for third-party content
may be disproportionate or fail to respect international human rights protection
standards. If the law imposes legal or financial penalties for harm arising from con-
tent distributed by third parties, intermediaries may approach the issue with exces-
sive zeal and filter or exclude from public discourse more content than is strictly
necessary. This problem of overreaching is a form of private censorship that ad-
versely affects third parties who use these platforms to distribute their content.
Such dynamics would undermine the principle that public discourse should
be open, robust, and uninhibited. For this reason, various countries in the world
and in the region have chosen to limit the liability of intermediaries for content
produced by third parties. In this respect, the 2011 Joint Declaration stated:
No one who simply provides technical Internet services such as providing

access, or searching for, or transmission or caching of information, should
be liable for content generated by others, which is disseminated using those
services, as long as they do not specifically intervene in that content or refuse to
obey a court order to remove that content, where they have the capacity to do so
(“mere conduit principle”).57
The Office of the Special Rapporteur has maintained that extending this basic
principle to the internet means (1) the absolute exclusion of any system of strict
liability,58 and (2) the exclusion of systems of fault-based liability that require
intermediaries to exercise prior control or monitor the services they provide.59
4.5. Subsequent Liability
One point that warrants special attention is the subsequent liability contemplated
in the digital context. As stated earlier, the right to freedom of expression is not ab-
solute: when harm arises from the exercise of that right, subsequent liability can be
established in clearly and precisely worded laws, provided that it is proportionate.60
In particular, the Inter-American Commission (systematizing the case law of the
57 Joint Declaration on Freedom of Expression and the Internet (n. 41), point 2.a.
58 “Freedom of Expression and the Internet” (n. 25), paras. 95–100.
59 Ibid., paras. 102, 105: arguing that “this type of mechanism puts private intermediaries in the
position of having to make decisions about the lawfulness or unlawfulness of the content, and for the
reasons explained above, create incentives for private censorship.”
60 Cf. “Inter-American Legal Framework Regarding the Right to Freedom of Expression” (n. 4), para. 67.
512 Edison Lanza
Inter-American Court) recommended that it consists of the exercise of the right

of reply or, when that is insufficient, proportionate civil liability.61 In the digital
environment, the Office of the Special Rapporteur specified that the systemic
dimensions of the Internet must be considered when addressing certain types of
subsequent liability, since they must be precisely designed so as not to affect the ex-
ercise of the right to freedom of expression. As a general principle, the Rapporteurs
for Freedom of Expression stated that, when assessing the necessity and propor-
tionality of restrictive measures, it is essential to apply a digitally systemic perspec-
tive that considers the impact of such a measure on the functioning of the internet
as a decentralized and open network.62 In this regard, “the correction of erroneous
information is the least costly measure for redressing damage related to it.”63
It is imperative that the drafters of subsequent liability laws and the judges
who apply them consider the impact of certain decisions. For instance, as noted
previously, decisions to block access to certain websites are in general grossly
disproportionate and therefore incompatible with the American Convention. It
is also unacceptable to apply subsequent liability especially, or in an aggravated
manner, to online speech, given the previously outlined principles of neutrality
and nondiscrimination.64
4.6. Hate Speech and Disinformation
Hate speech and the dissemination of false information for the purpose of de-
liberately misleading the public are challenges that modern democracies have
always faced. In general, legislative and judicial systems have sought propor-
tionate responses to tackle the problem of speech that impoverishes public dis-
course without sacrificing the general principle that States must remain neutral
in terms of content regulation. These problems, which have always existed, have
been exacerbated by the speed and capacity of content to go viral, the center
of a horizontal social media ecosystem. The oversight mechanisms that previ-
ously identified hate speech or disinformation practices appear to have lost their
ability to influence. A more open and decentralized public discourse, such as
that offered by the internet, is also by definition a more chaotic space and one in
which this type of speech is likely to be more visible.
The ACHR strikes an appropriate balance on these issues. The Convention
excludes hate speech from protection, but only in strictly exceptional
circumstances, namely, when such speech incites violence or there is:
61 Ibid., para. 79.
62 Cf. Joint Declaration on Freedom of Expression and the Internet (n. 41), point 1.c; see also
“Freedom of Expression and the Internet” (n. 25), para. 63.
actual, truthful, objective and strong proof that the person was not simply
issuing an opinion (even if that opinion was hard, unfair or disturbing), but that
the person had the clear intention of committing a crime and the actual, real
and effective possibility of achieving this objective.65
The digital environment and the perception that hate speech and disinfor-
mation are more widespread should lead not to a revision of the principles but
to their reaffirmation. Indeed, subsequent liability, including criminal liability,
can be adapted to address speech that incites violence based on discrimination.
However, the Court could advance its case law on hate speech by establishing
what elements and requirements both the law and the courts should consider
in identifying speech that has the potential to incite violence on discrimina-
tory grounds. In a recent report on hate speech and violence against LGBTIQ+
persons in the Americas, the IACHR and its Office of the Special Rapporteur
recommended observing the Rabat Plan of Action on the prohibition against
advocating for national, racial, or religious hatred. The Rabat Plan sets out
criteria to make it easier for national authorities to discern when they are dealing
with speech that may incite violence on discriminatory grounds.66
In its interpretation of Article 13.5 of the American Convention, the
Commission held that States should pass legislation to punish the advocacy of
hatred that constitutes “incitement to violence or any other similar unlawful
action,” and it referred to the limits for such penalties. On the other hand,
under Article 13.2 of the American Convention, other intolerant expressions
or remarks that do not strictly constitute an “incitement to violence” may be
subject to the imposition of subsequent liability to ensure the rights to dig-
nity and the nondiscrimination of particular groups in society, including
LGBTIQ+persons. The International Covenant on Civil and Political Rights
(ICCPR) takes a similar approach. The Rabat Plan of Action adds a third type
of speech that, although not punishable, raises concerns about tolerance and
respect and clearly distinguishes between: (1) expressions that constitute a
criminal offense, (2) expressions that are not criminally punishable but may
justify a civil suit or administrative penalties, and (3) expressions that are not
legally punishable “but still rais[e]‌a concern in terms of tolerance, civility and
respect for the rights of others.”67
65 “Inter-
American Legal Framework Regarding the Right to Freedom of Expression” (n. 4),
para. 58.
66 “Violence Against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas” (2015),
paras. 227 et seq.

67 United Nations Committee on the Elimination of Racial Discrimination, General recommen-
dation No. 35, Combating racist hate speech, September 26, 2013, CERD/C/GC/35, paras. 20, 25.
514 Edison Lanza
4.7. Cybersecurity, Privacy, and Surveillance
The emergence of the internet has created a communication system that is more
horizontal but also produces many more traces for identifying people than an-
alog technologies. Under the previous paradigm, information could be accessed
relatively anonymously. The technological capacity of others to know what we
were reading, listening to, or watching was limited unless these actors invested
in costly surveillance tactics or actions that contravened human rights. Today,
surfing the internet means leaving traces of everything we do. The websites we
visit know who we are, they know our patterns of consumption, what websites
we visit, what newspapers we read, and who we vote for. Based on that informa-
tion, they can create profiles that are used for commercial purposes. This knowl-
edge has radically transformed the advertising market. Companies that wish to
transmit their messages or advertisements can design precise and highly targeted
strategies. This creates a message dissemination process that is more efficient and
effective (while also far more invasive) than traditional advertising.
This feature of the internet has given rise to at least three consequences. First,
the internet has been developing on the basis of an advertising scheme through
which companies provide different types of services based on the advertising in-
come they generate. These companies have acquired influential positions within
the online communication ecosystem. Second, users—wary of the existence of
highly personalized profiles that capture their consumption patterns, tastes, and
social relationships—have demanded and are demanding technologies that give
them greater control over their personal data and allow them to avoid some of
the industry’s practices, such as tracking on websites. In addition, States around
the world have made efforts to strengthen and update their legal frameworks that
protect personal data, which are considered essential to prevent the most abusive
advertising practices.
Finally, some States have taken advantage of internet traffic in order to carry out
mass surveillance, with not a few reported cases of unlawful intrusion (namely,
surveillance or spying) into the digital communications of people exercising their
fundamental rights as journalists, human rights advocates, judges, or members
of opposition parties. This has also been aided by the inadequate or insufficient
development of privacy-enhancing tools and technologies, such as default en-
cryption, as well as by the absence of legislation and independent oversight of the
surveillance activities of security agencies.68 These activities have been called into
68 Cf. OSCE, Joint Declaration on Surveillance Programs and their Impact on Freedom of Expression;
SR/UN, Report of the Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression. United Nations General Assembly, New York, NY, Office of the Special
Rapporteur on Freedom of Opinion and Expression, 2013, para. 2. On this issue, a report by the
University of Toronto’s Citizen Lab found that State institutions in Mexico acquired Pegasus spyware
question and confirm the need for adequate and efficient mechanisms to protect
privacy rights. The right to privacy is in fact one of the fundamental rights for
a democratic political community. Without the adequate protection of a private
sphere away from the gaze of others, human beings cannot develop full and free
lives. A reasonable expectation of privacy is a prerequisite for democratic citizen-
ship and is closely linked to the freedom of expression.69
The Office of the Special Rapporteur for Freedom of Expression of the IACHR
has said that “[r]‌espect for online freedom of expression assumes that there is
privacy for people’s communications.”70 The IACtHR underscored the close con-
nection between the right to privacy and the right to personal liberty guaranteed
by Article 7 of the Convention.71 The protection of privacy extends to areas
such as the home, forms of correspondence, and family life.72 In addition, the
IACHR has stated that the right to privacy encompasses four legally protected
interests “that are closely related to the exercise of other fundamental rights such
as freedom of thought and expression,” including:
the right to have an individual sphere impervious to the arbitrary interference

of the State or third parties . . . the right to govern oneself, in that solitary space,
by one’s own rules defined autonomously according to one’s individual life
plan. . . . the confidentiality of all the data produced in that private space—in
other words, it prohibits the disclosure or circulation of information captured,
without the consent of their owner, in that space of private protection reserved
to the individual . . . and the right to one’s own image, meaning the right to not
have one’s image used without consent.73
This renewed concern for the right to privacy is intimately linked to the emer-
gence of the internet. The world has moved away from a focus on the initial
promise of the Internet as a profoundly democratizing, horizontal space toward
a realization of its complications and dangers, in which that equalizing element
coexists with a global surveillance network built on the massive and selective
and unlawfully used it to intercept communications from journalists and human rights defenders.
See J. Scott-Railton et al., “Reckless VI: Mexican Journalists Investigating Cartels Targeted with NSO
Spyware Following Assassination of Colleague” (2018). Retrieved from Citizen Lab at the University
of Toronto website: <https://citizenlab.ca/2018/11/mexican-journalists-investigating-cartels-targe
ted-nso-spyware-following-assassination-colleague/> (accessed February 5, 2022).
69 Cf. SR/UN, Report of the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression. General Assembly United Nations, New York, NY. Office of the
Special Rapporteur on Freedom of Opinion and Expression, 2011, para. 11.
71 Cf. Artavia Murillo et al. (In Vitro Fertilization) v. Costa Rica [2012] IACtHR, Ser. C No. 257, para. 143.
72 Freedom of Expression and the Internet’ (n. 25), paras. 188–190.
516 Edison Lanza
violation of the right to privacy. In this regard, the link between the right to pri-
vacy and freedom of expression is close: if repressive States deploy surveillance for
unlawful purposes, the internet can be used to silence or undermine the protec-
tion of journalism and dissent, penalize criticism, and crack down on the provi-
sion of independent information, as well as the sources of such information.74
For the UN Special Rapporteur on Freedom of Expression, the problem is so
serious that he has recently called for:
an immediate moratorium on the global sale and transfer of the tools of the
private surveillance industry until rigorous human rights safeguards are put in
place to regulate such practices and guarantee that Governments and non-State
actors use the tools in legitimate ways.75
In Advisory Opinion 5/85, the Inter-American Court held that freedom of ex-
pression is a:
cornerstone upon which the very existence of a democratic society rests. It is

indispensable for the formation of public opinion. It is also a conditio sine qua
non for the development of political parties, trade unions, scientific and cultural
societies and, in general, those who wish to influence the public. It represents,
in short, the means that enable the community, when exercising its options, to
be sufficiently informed. Consequently, it can be said that a society that is not
well informed is not a society that is truly free.76
In recent years, the internet has become a part of the fundamental scaffolding
upholding modern democratic systems. Public discourse and the free flow of
information—which the Court highlighted as essential to democracy in its first
decision on this right—are increasingly taking place through this decentralized
network. The communications ecosystem that has emerged as a result represents
a paradigm shift in the communications order, and this shift is having a direct
impact on that discourse.
From this perspective, I submit that the bodies of the Inter-American System
need to reaffirm their extensive jurisprudence on freedom of expression for at
least three reasons. First, the paradigm shift brought about by the internet has
74 Ibid., para. 21.

75 SR/UN, Surveillance and Human Rights, para. 2.
76 “Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism”
(n. 3), para. 70.

called into question many of the principles on which this jurisprudence is based.
Faith in free, open, robust, and uninhibited debate seems to be giving way to
demands for greater control and censorship in a deeply problematic regulatory
approach that amounts to a repudiation of the principles and standards of the
Inter-American System.
Second, new actors in the communications world have emerged with a variety
of roles. Thus, the principle that limits the legal liability of intermediaries for third-
party content does not mean that they do not play a fundamental role in the flow
of information online, and this can be addressed legitimately through approaches
that respect freedom of expression.77 It seems clear that the larger internet
platforms function as private curators of public debate. To the extent that they do
in fact play this role, it is vitally important to reflect on the principles that should
guide them. When operating as public forums, the principles of freedom of expres-
sion and transparency developed here should guide these private actors in their
roles as moderators. At the same time, we need to ensure that there is sufficient
democratic, citizen oversight of these forums and how they operate in practice.
The unlawful surveillance that has proliferated on the internet—often of
journalists, activists, opposition figures, dissidents, and others exercising their
right to freedom of expression—has at times led to various forms of retaliation
by States. These surveillance activities are conducted against a backdrop of weak
democratic controls on the purchase and transfer of technology to governments
with repressive policies toward journalists and human rights activists. The issue
of targeted and mass surveillance must be addressed by the System’s bodies
from the perspective of States’ human rights law obligations and the related
responsibilities of the companies that manufacture these technologies.
Third, and finally, democratic institutions throughout the world seem to be
experiencing a moment of crisis and doubt in terms of their capacity to deliver
effective responses to citizens’ demands. Freedom of expression and protection
from both mass and targeted surveillance, while guaranteeing public discourse
(essential for democracies to function) has emerged as a fundamental right on
the path toward addressing these challenges. Therefore, the principles must
be updated and applied to the ever-changing reality of the world around us in
order to guide us, once again, in the search for regulatory solutions to the novel
problems we face.
77 Cf. Fontevecchia and D’Amico v. Argentina (n. 48), para. 44, stating: “Social media platforms
play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a
democratic society, which is why it is indispensable for them to encompass the most diverse informa-
tion and opinions. As essential instruments of freedom of thought and expression, these media must
exercise their social function responsibly.”
PART III
OP T IMIZ ING T H E I M PAC T OF
T HE IN T E R- A
MER IC A N SYST E M
III.1
Proposals for the Improvement of the
Work of the Inter-American Commission
on Human Rights
By Joel Hernandez García
1. Introduction
For over sixty years the Inter- American Commission on Human Rights
(IACHR) has supported member States of the Organization of American States
(OAS) and their civil societies in a broad endeavor to protect human rights.1
Meaningful steps have been taken in the Western Hemisphere to build a world
where all human beings are free and equal in dignity and rights. The IACHR
has played a fundamental role in the democratization of American societies and
its impact has been transformative. To a lesser or greater degree, the standards
developed by the Commission have been incorporated into the domestic legal
orders of American States. For example, the rule of law has been strengthened in
many countries by internalizing recommendations made by the IACHR through
its various mechanisms.
However, the Commission can and should do more. In a complex world,
the Commission needs to remain effective and be more efficient. This could be
achieved by improving some of its working methods, which would assist it in
facing current challenges. This chapter, therefore, will provide a general anal-
ysis of the Commission’s impact on the construction of an inter-American legal
order. From there I will present some proposals to improve the Commission’s
continued work of complementing national efforts in the protection and promo-
tion of human rights.
1 This text was written in July 2020 and last revised in October 2021. This version has been
approved by the author and editors.
Joel Hernandez García, Proposals for the Improvement of the Work of the Inter-American Commission on Human
Rights In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan,
Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Joel Hernandez García 2024.
DOI: 10.1093/oso/9780197744161.003.0027
522 Joel Hernandez García
2. A Robust Inter-American Human Rights System
The construction of international human rights law has experienced great progress
in the Americas since the foundation of the OAS and the adoption of the American
Declaration of the Rights and Duties of Man (American Declaration) in 1948.2 The
region has been able to develop a solid body of international human rights law,
which is interpreted and applied by the IACHR and the Inter-American Court of
Human Rights (IACtHR). The international order that emerged as a response to
the horrors of World War II had a fundamental orientation toward the respect for
human dignity. Indeed, the OAS was founded in order to promote the values of the
new postwar international order. The commitment of the founding member States
to the full respect for human rights appears in various sections of the OAS Charter.
In accordance with the Preamble of that instrument, “the true significance of
American solidarity and good neighborliness can only mean the consolidation on
this continent, within the framework of democratic institutions, of a system of in-
dividual liberty and social justice based on respect for the essential rights of man.”3
However, the action of the international community in the defense of human
rights was gradual. Initially, that action was marked by the principle of noninter-
vention in domestic affairs, which limited any expression of concern by the in-
ternational community to events that arose in the countries of the region. What
happened within a State remained the exclusive competence of that State. Today,
no State can argue that issues related to human rights are a matter of domestic
competence as the international community has a vested interest in the promo-
tion and protection of human rights at a global level.
The milestone that initiated the change in the international community’s ap-
proach to human rights issues was the Fifth Meeting of Consultation of Ministers
of Foreign Affairs, held in August 1959 in Santiago, where the foundations of the
Inter-American System were laid down.4 The Santiago Declaration contains two
fundamental decisions of the foreign ministers: (1) to begin negotiations on a
“human rights convention” and (2) to establish a Commission on human rights
in charge of “promoting respect for such rights.”5 Ten years later, in 1969, the
American Convention on Human Rights, the Pact of San José, was adopted.6 The
2 Organization of American States (OAS), “American Declaration of the Rights and Duties of
Man,” adopted at the Ninth International Conference of American States, Bogotá, Colombia, 1948.
3 OAS, “Charter of the Organization of American States,” Preamble, para. 4.
4 Information on the evolution of the Inter-American Human Rights System, https://www.oas.
org/en/iachr/mandate/Basics/intro.asp#_ftn6 (accessed November 2, 2021).

5 See the complete text of the Declaration of Santiago, Chile, adopted at the Fifth Meeting of
Consultation of Ministers of Foreign Affairs, Santiago, Chile, August 12–18, 1959, Final Act, Doc.
OEA/Ser.C/II.5, 4–6, https://www.oas.org/consejo/MEETINGS%20OF%20CONSULTATION/
minutes.asp (accessed November 2, 2021).
6 OAS, American Convention on Human Rights, “Pact of San José,” Costa Rica, November 22,
1969. Treaty Series No. 36.

Proposals for Improvement 523
Commission immediately began its work without waiting for the conclusion of
the American Convention.
Sixty years later the region now enjoys a robust Inter-American Human Rights
System (IAHRS) with two fully operational and complementary institutions, the
Commission and the Court. The awareness that human rights and human dig-
nity are inherent to human beings is commonly understood. More so, there is
a widespread acceptance that the defense of human rights on the continent is
a collective responsibility of all OAS member States and that no State authority
can abandon its international responsibility in cases of human rights violations
under the argument that human rights are matters that fall within the domestic
arena. The impact that the Commission and the Court have had on the conti-
nent is undeniable, both generally in the construction of democratic societies
respectful of human rights and individually through the reparation of human
rights violations.7
The IAHRS works on the basis of three pillars. Firstly, the Commission has
developed a strong human rights monitoring system directed at the thirty-five
member States of the OAS through a toolbox of mechanisms. Secondly, the
Commission provides technical assistance to States and civil societies to en-
hance national capacities. Nonetheless, the Inter-American System is largely
known by the third pillar: its system of cases and petitions. Through the adju-
dication process, generally accepted legal standards have been established. The
merits reports of the Commission and the sentences of the Court set obligations
upon States to repair human rights violations committed against individuals.
They have a reparatory objective and, therefore, a direct impact on victims. In
addition, those decisions also have a general effect on the concerned State’s pop-
ulation when measures of nonrepetition are ordered. These kinds of measures
impose obligations to adopt laws, regulations, or policies with the purpose that
the wrong committed by State agents is not to be repeated.
Inter-
American legal instruments and the interpretation thereof by the
Commission and the Court have developed standards on the human rights
obligations of member States under thresholds established by those bodies. Even
though State practice is an element in the creation of international law rules,
inter-American human rights law has been advanced by the decisions of the
7 Panlo Saavedra, “Algunas reflexiones en cuanto al impacto estructural de las decisiones
de la Corte Interamericana de Derechos Humanos,” in Armin von Bogdandy et al. (eds.), Ius
Constitucionale Commune en América Latina. Textos básicos para su comprensión (IECQ y MPIL,
Querétaro 2017), 457–502; Flávia Piovesan, “Ius Constitutionale Commune latinoamericano en
derechos humanos e impacto del Sistema Interamericano: rasgos, potencialidades y desafios,” in
Armin von Bogdandy, Héctor Fix Fierro, and Mariela Morales Antoniazzi (eds.), Ius Constitutionale
Commune en América Latina. Rasgos, potencialidades y desafíos, (IIJ-UNAM-MPIL-IIDC 2014), 61–
84; Ximena Soley, “The transformative dimension of inter-American jurisprudence,” in Armin von
Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America: the emergence of a new ius
commune (Oxford University Press 2017), 337–355.
Commission and the Court by moving States beyond literal interpretations of

the norms they are bound by.
The most evident impact of the Inter-American System lies in the progres-
sive development of international human rights law. The standards developed
from the decisions of the Commission and judgments of the Court are part of
an American corpus juris that nourishes their work. Through an evolutionary
approach each precedent set by those organs serves as a source of law to continue
developing the norms in subsequent decisions.
The IACHR and the IACtHR have thus adopted an evolutionary interpreta-
tion of the American Convention when developing standards. In this regard, the
Court has established that the interpretation of the Convention “must consider
the changes over time and present-day conditions.”8 It has also observed that the
interpretation of other international norms cannot be used to restrict the enjoy-
ment and exercise of a right. Furthermore, the interpretation must contribute to
the most favorable application of the provision whose interpretation is sought.
To that end, the Inter-American System has relied on the general provisions of
interpretation set forth in the Vienna Convention on the Law of Treaties, in par-
ticular the principle of pacta sunt servanda: every treaty in force is binding upon
the parties to it and must be performed by them in good faith.9
The Inter-American System is inherently victim-oriented. The adoption of
human rights instruments, the establishment of the organs of the Inter-American
System, and the development of their jurisprudence with far-reaching standards
have the ultimate goal of preventing human rights violations and, where those
violations have been committed, effective reparations to victims.
Victims, who in pursuit of justice denied by the State, are empowered to bring
cases before the Commission in an expeditious manner and through a simple
procedure. Even though it is the Commission’s prerogative to bring cases against
the State before the Court, since the reform to the Court’s rules of procedure
adopted in 2000 the victim enjoys ius standi in all the tribunal’s proceedings.
We come, therefore, to the inevitable issue of the ways and means to guar-
antee a State’s compliance with its international obligations. If the State remains
inactive in relation to the decisions of the Commission or the Court and no
reparation is given to the victim, as a basic principle of law, the State incurs in-
ternational responsibility and shall be subject to consequences provided by in-
ternational law. However, if the ultimate goal is the protection of the victim and
the prevention and reparation of human rights violations, the question is how the
Inter-American System can improve its effectiveness. Beyond the general issue of
8 IACtHR, “The Right to Information on Consular Assistance in the Framework of the Guarantees
of Due Process of Law,” Advisory Opinion OC-16/99 of October 1, 1999, Ser. A No. 16, paras.
113–114.
9 UN, Vienna Convention on the Law of Treaties, May 23, 1969, UN Doc. No. 18232, art. 26.
the efficacy of international law, the organs of the Inter-American System must
work according to the understanding that the cooperation of the State is needed
under all circumstance in order to have a positive impact on victims and society
at large. How to secure the cooperation of States, therefore, is key and obliges the
Commission to examine the way it performs its work, crafts its decisions, and
designs its mechanisms with a view of obtaining compliance. The effectiveness of
the system depends on the cooperation provided by States. If such cooperation is
not obtained, their decisions run the risk of remaining without effect.
We must not lose sight of the fact that the development of the Inter-American
System, like any other development of international law, stems from the will-
ingness of States. A sovereign decision by twenty-one States allowed the adop-
tion of the American Declaration in 1948. The States established the organs
of this System and initiated the negotiation of the American Convention by a
sovereign decision. The individual will of each State later allowed the adoption
of and adherence to the American Convention and the recognition of the con-
tentious jurisdiction of the Inter-American Court. However, once conventional
agreements are adopted, States are obliged to fulfill them under the principle of
pacta sunt servanda. Thus, we face a dichotomy between States accepting the
human rights commitments arising from the American Declaration and the
American Convention as a voluntary act and the duty to abide by the decisions
of the Commission and the Court according to the nature of each organ and the
terms of adherence by that State to those human rights instruments.
Taking into account the consensual nature of the international system and
the standing obligations of States under inter-American human rights law,
proposals for improving the work of the Commission contained in this chapter
are made while also recognizing that, in order to have an impact on the protec-
tion of victims, State compliance with the decisions of the Commission is essen-
tial. In what follows, three proposals are put forward to improve the work of the
Commission: strengthening national capacities (section 3), advancing standards
through the selection of cases to remedy structural situations (section 4), and
promoting compliance with the decisions of the Commission (section 5).
3. Strengthening National Capacities
We must proceed from two basic assumptions. First, States have the primary ob-
ligation to respect fundamental rights and freedoms and ensure their free and
full exercise to all persons under their jurisdiction. Second, the Inter-American
System has a subsidiary role and complements national judicial systems. The
interplay between national systems and the Inter-American System provides
victims with the widest degree of protection. The Court has long prescribed the
obligation of States to establish their jurisdiction over human rights violations

and reaffirmed the principle of complementarity. In the case of Andrade Salmon
v. Bolivia, the Court affirmed:
[T]‌he Inter-American human rights system consists of a national level, through

which each State must guarantee the rights and freedoms provided for in the
Convention and investigate and, where appropriate, try and punish the offences
that are committed; and that if a specific case is not resolved at the domestic or
national stage, the Convention provides for an international level in which the
main organs are the Commission and the Court.10
In addition, the Court has also indicated “that when a matter has been re-
solved in the domestic order, according to the clauses of the Convention, it is
not necessary to bring it before the Inter-American Court for its approval or
confirmation.”11
Each State should have the necessary legislation in place and the competent
authorities to respect and ensure the full exercise of the rights and freedoms
recognized in their constitutions and by international human rights law. As per
Article 2 of the American Convention, States parties are to adopt such legislative
or other measures necessary to give effect to those rights or freedoms. In order to
afford the highest level of protection, national legislation should be drafted in ac-
cordance with the highest international standards. In fact, a number of countries
in Latin America have given constitutional hierarchy to norms of international
human rights in order to guarantee that laws and regulations, and the acts de-
rived thereof, are consistent with those international standards.
The strengthening of national capacities should follow a two-prong approach.
On the one hand, States have a duty to improve their normative framework and
judicial systems in order to comply with their primary obligation to respect and
ensure the full enjoyment of human rights. On the other hand, the obligations
derived from the decisions of the Commission and the judgments of the Court
have the effect of harmonizing policies and laws to meet international standards.
Strong national systems with laws, regulations, and institutions within demo-
cratic societies prevent violations of human rights. In turn, when violations occur,
those national systems have a greater capacity to remedy grievances. The adher-
ence of national legal and institutional frameworks to inter-American standards
is fundamental for a case to be concluded at the national level. Recourse to the
Commission can only be by exception.
10 Andrade Salmón v. Bolivia [2016], IACtHR, Ser. C No. 330, para. 92 (author’s translation).
11 Ibid.
The core of the system of petitions and cases is its complementarity. It is trig-
gered when remedies at the national level have been exhausted in accordance
with a general rule of international law contained in the American Convention.
Only those cases that are likely to characterize a violation of rights contained in
the instruments under the competence of the Commission would be admitted
for consideration.12 The purpose of the Inter-American System is not to provide
a judicial review; it is not at the cassation level of a complaint. As the system
of petitions and cases has the sole purpose of establishing a State’s international
responsibility for violations of Inter-American instruments, its complemen-
tarity means that its decisions and recommendations are aimed at correcting
the wrongs not fully repaired at the national level. Once international respon-
sibility is established, the State in question should repair those violations within
the framework of its national laws and procedures. At the compliance level, the
concerned State must internalize the decision or judgment.
As a consequence of the nature and functioning of the Inter-American System,
it is in the best interest of victims to find protection at the national level, as the
system of petitions and cases inevitably delays the reparation due to the victim.
As explained in the next section, the number of cases in the Commission’s docket
makes the process long and, sometimes, cumbersome. Moreover, compliance
with the Commission’s decisions or the Court’s judgments requires the activa-
tion of follow-up mechanisms, which in turn require additional efforts that pro-
long satisfactory reparation.
However, the need to strengthen national capacities to implement human
rights focused public policies that generate concrete impacts for the enjoy-
ment and exercise of human rights and effective means of reparation is a per-
sistent hemispheric challenge. The Commission has played a vital role in
promoting the adoption of constitutional reforms, laws, and public policies
with a focus on human rights in accordance with inter-American standards. Its
recommendations have led States to eliminate discriminatory laws, policies, and
practices to provide reparations to victims, to prevent the repetition of human
rights violations, and to strengthen their protection.
One of the main activities of the Commission is to promote knowledge and
the implementation of inter-American standards in normative frameworks, na-
tional instruments for the protection of human rights, and in the formulation
of public policies. In the present moment, strengthening national capabilities
constitutes the basis for the realization of rights. Therefore, it is in the interest
of the Commission to contribute proactively to the development of the sorts
of objective conditions inside States that are conducive to transforming inter-
American standards into concrete reality.
12 Art. 34 American Convention on Human Rights.

The Commission has taken the responsibility for promoting the strengthening
of national capabilities in Strategic Objective 3 (SO3) of its Strategic Plan 2017–
2021.13 SO3 aims to promote democracy, human dignity, equality, justice, and
fundamental freedoms based on an active strengthening of State institutions
and public policies with a human rights approach, in accordance with inter-
American norms and standards, and to develop the capacities of social and ac-
ademic organizations and networks to act in defense of human rights. In order
to implement SO3, the Commission has developed a range of specific programs,
including training and promoting human rights focused ideas and cultures;
collaborating with Central American and Caribbean States; technical coopera-
tion on institutionality and public policies with a human rights approach; and
programs on social participation, as well as contributing to the capacity-building
of social and academic organizations and networks acting in defense of human
rights.
Over a five-year period, the Commission has implemented various actions to
implement SO3 programs. The deployment of technical assistance has included
training stakeholders, technical assistance for drafting bills, and supporting the
development of public policies and preparing thematic reports on various topics
that contain guidelines on inter-American standards.
As the Strategic Plan 2017–2021 comes to an end, the Commission must as-
sess its achievements and the opportunities that exist to continue strengthening
national capacities. In order to work more intensively on strengthening national
capacities, future efforts of the Commission should address the issue of reaching
out more actively to a larger number of actors. The common goal should be
the internalization of inter-American standards in national laws and their dis-
semination among national autonomous institutions, legislators, and justice
operators for their application in the performance of their duties.
One possibility could be the development of inter-American networks of na-
tional autonomous institutions directly involved in the defense and protection of
human rights. These networks would then promote inter-American standards
and liaise with the Commission. In previous paragraphs, we have highlighted the
responsibilities of States to protect and respect rights and freedoms and to ensure
their free and full exercise. Within each State there are actors who play a major
role in the national justice system by means of defending or representing victims.
As part of their work, they promote inter-American standards and compel na-
tional authorities to abide by those norms. Within this group, national human
rights institutions (ombudspersons), national mechanisms for the prevention
13 IACHR, “Strategic Plan 2017–2021,” April 28, 2017, <https://www.oas.org/en/iachr/media_cen
ter/PReleases/2017/054.asp> (accessed November 19, 2021).

of torture, and public defenders, among others, have developed a general prac-
tice to promote the highest international standards in their defense work. The
Commission could support those national actors by creating inter-American
networks. These kinds of networks could be the basis for coordinating activi-
ties among their members, including the exchange of best practices, the devel-
opment of common methodologies of work, the training of personnel, and the
dissemination of inter-American standards. The ultimate purpose would be to
support these national actors, whose work in the pursuance of justice has the ef-
fect of strengthening national capacities.
A second possibility is to develop cooperation programs with selected coun-
tries or regions. The Strategic Plan 2017–2021 established a cooperation program
with Central America and the Caribbean. The program has achieved meaningful
results in matters relating to monitoring and capacity-building. However, the
Commission must intensify the promotion of these activities if it wants to have
a greater impact, especially in countries with specific needs. Chapter 4.B of the
Commission’s Annual Report provides a general assessment of progress and
challenges for each country in the region. This evaluation of the state of human
rights in the region allows the Commission to identify specific areas to be jointly
addressed with countries.
As part of this proposal for extended cooperation, the Commission could
start working closer with key actors, including legislators and justice operators,
for a broader dissemination of inter-American standards. Within this group, it is
possible to identify parliamentary advisers, prosecutors, judges, and councils of
the magistracy, among others. This would entail developing country-strategies
to identify actors and subjects of work. Those strategies should aim at providing
technical assistance in two aspects: first, by supporting legislative work that
elaborates laws and regulations implementing inter-American standards, and
second, by joining national efforts for training justice operators in the interpreta-
tion of those international standards. The combination of legislative and judicial
technical assistance will have the effect of directly promoting the highest levels
of protection to be afforded by national authorities, which in turn will allow an
effective prevention of human rights violations and adequate reparation in cases
of infringement.
As established previously, the second prong in the interplay between national
systems and the Inter-American System has to do with the internationalization
of decisions of the Commission and judgments of the Court with the effect of
harmonizing national legal frameworks with international standards. Thus,
the Inter-American System has an overarching impact stemming from single
complaints that are brought into the system of petitions and cases. The following
sections deal with proposals to advance the impact of cases in strengthening na-
tional capacities.
4. Advancing Standards through the Selection of Cases

to Remedy Structural Situations
Despite the influence that the Inter-American System has had on the region in
promoting the highest standards of protection, the Commission’s continued
impact and effectiveness faces significant challenges. One of the weaknesses of
the Commission has been the longstanding procedural backlog. This backlog is
explained by the increasing number of petitions and the limited resources avail-
able to the Commission to face the procedural burden. As reported in detail in
the 2020 Annual Report,14 the number of petitions lodged with the Commission
has exponentially increased in recent years. Last year the Commission received
1,990 petitions.15 The case backlog has resulted in significant delays. Once a pe-
tition is filed, the average time for an admissibility report is seven years, and the
average time for a merits report is twelve years and seven months.
To address this situation, the Strategic Plan 2017–2021 established as one of its
objectives the Special Procedural Delay Reduction Program. Before the adoption
of the Strategic Plan, the Commission approved sixteen merits reports in 2016.
Thereafter, there has been a gradual increase. In 2017, the number increased to
thirty-five merits reports; in 2018, forty-three reports were adopted, in 2019 the
Commission approved a total of forty-seven, and in 2020, sixty-seven reports
were adopted.16 The result is a 400 percent increase in merits reports compared
to the reports adopted in 2016. With regard to cases referred to the Court, the
number has also increased. In 2016, sixteen cases were sent to the Court; in 2017,
there were seventeen cases; in 2018, eighteen cases, in 2019, thirty-two cases, and
in 2020, twenty-three cases. This translates into a 100 percent increase compared
to 2016. These numbers are a positive sign that the procedural backlog is de-
clining. However, the Commission still maintains a substantive docket. The 2020
Annual Report presents a portfolio of 3,089 petitions and cases. At the end of
2020, there were 1,685 petitions at the admissibility stage, and 1,404 cases at the
merits stage.17
The system of petitions and cases has given the Inter-American System its
most representative feature. Therefore, the procedural burden must be tackled
quantitatively, in order to attend to all those who have approached the system
seeking redress, and qualitatively, in order to continue generating standards that
guide the action of States. Addressing the significant number of cases, both quan-
titatively and qualitatively, raises a dilemma. Should the Commission continue
taking action on all petitions that meet the admissibility requirements provided
14 IACHR, “Annual Report 2020.”

15 IACHR, “Annual Report 2020,” para. 14.
16 IACHR, “Annual Report 2020,” para. 30.
17 IACHR, “Annual Report 2020,” paras. 217–218.
in the Convention and its Rules of Procedure or should it instead adopt admissi-
bility criteria in order to address paradigmatic cases that will produce structural
changes in States?
Under the first option, petitions would follow the current procedure as es-
tablished in the Commission’s instruments. The Executive Secretariat of the
Commission would continue to study and process petitions that fulfill the
requirements set forth in Article 28 of the Rules of Procedure—mostly the
provision of certain information, including the alleged violation of any of the
human rights recognized in the American Convention and other applicable
instruments. Once the petition has been lodged, the Commission would take
the decision on its admissibility at a later stage and, if applicable, on the merits.
Timely and efficient reparations to victims would depend on the extent to which
the Commission has significantly reduced the case backlog. Undoubtedly, the
advantage of this option is to keep the System open to any cases that involve al-
leged violations of the American Convention and other inter-American human
rights instruments. The downside is that cases that would likely have an impact
on remedying structural deficiencies in national legal systems would not be
prioritized.
Under the second option, the Commission would have to adopt admissi-
bility criteria to prioritize cases that may have an impact in addressing structural
impairments to the enjoyment of human rights in a given State. This option would
have the advantage of speeding up decisions with an impact both on reparations
to victims of violations and on strengthening national capacities via structural
recommendations. The downside of this option is that petitions that have been
lodged before the Commission in recent years would receive limited attention. In
addition, this option would establish additional criteria for admissibility, which
would also require an amendment to the Rules of Procedure. Any such amend-
ment entails a complex process of negotiation and requires a wide consultation
to take into account the views of all interested parties. Therefore, amendments to
the Rules of Procedures are possible only in exceptional circumstances.
A proposal for improving the current situation may address this in two si-
multaneous ways. On the one hand, the Commission must make additional
progress in reducing the existing case backlog. The Special Procedural Delay
Reduction Program should continue its implementation. On the other hand,
the Commission should pay special attention to cases with a higher severity
threshold and that are paradigmatic for the development of inter-American
standards. A possible solution would be to make more frequent use of criteria
contained in Article 29(d) of the Regulation in order to expedite the evaluation
of a petition during the initial processing stage in the following situations: when
the decision could have the effect of remedying serious structural situations that
have an impact on the enjoyment of human rights, or when the decision could
promote changes in legislation or State practices and avoid receiving multiple

petitions on the same matter.
The Commission should continue exploring other ways, in consultation
with States and civil societies, to achieve a greater impact and efficiency in its
system of petitions and cases. For instance, a possible way to advance cases to
remedy structural issues could be to extend criteria for the expedited study and
initial processing of petitions currently contained in Article 28 of the Rules of
Procedure to the admissibility and merits stages. However, this action would
require an amendment of the Commission’s Rules of Procedure, entailing the
aforementioned complexities.
In the end, the Commission needs to engage in deep reflection and em-
bark on a wide consultation process on measures to advance cases with an im-
pact in remedying structural situations. As stated throughout this chapter, the
Inter-American System of cases and petitions has contributed to the devel-
opment of standards not only to repair violations of human rights committed
against individuals but to avoid the repetition of violations. The challenge the
Commission is facing is to continue to have an impact in strengthening national
capacities without losing its transformative character due to its case backlog. It is
imperative, therefore, that the Commission starts a dialogue on how to advance
cases that may contribute to remedying structural situations.
5. Promoting Compliance with the Decisions

of the Commission
As with any other human rights body, a State has to comply with the Commission’s
decisions in order for victims to be protected. The effectiveness of the IAHRS is
largely based on States complying with the decisions of the Commission and the
judgments of the Court. Both bodies have implemented their own monitoring
mechanisms. Although the duty to comply with the decisions and judgments of
the Commission and the Court is fully established, the cooperation of States is
determinant. It is not sufficient to exhaust proceedings at the level of the two
organs to repair the victims. A significant number of measures remain unful-
filled, and in various cases compliance processes take considerable time. This sit-
uation is extremely worrisome because the effectiveness of the System is placed
in question when a victim’s rights are not restored in a satisfactory and timely
manner. The general objective of the Strategic Plan 2017–2021 is “to stimulate
the effectiveness of the Inter-American Human Rights System as a pillar and
common commitment of the Americas.”
At times, State structures are complex and compliance with decisions
depends on several domestic actors. Federal States pose a special challenge as
international responsibilities may arise from different levels of government and

the federal authorities must embark on internal procedures to respond to the
Commission’s requests. However, it is an established rule of international law
that the conditions within a State do not exempt it from fulfilling its international
obligations.18
The Commission resorts to various tools to obtain compliance with its
decisions. Public hearings or private working meetings in the framework
of its periods of sessions are used to make a situation visible and to present
recommendations to the parties that might encourage compliance. In such
meetings, members of the Commission meet with concerned parties to review
compliance levels with precautionary measures, merits reports, and friendly
settlement agreements. In addition, other measures are being taken to buttress
compliance. For example, the Commission has made progress in the system-
atization of its recommendations and the development of special follow-up
mechanisms to move State authorities to give effect to their decisions. One land-
mark has been the recent launching of the Inter-American System to Monitor
Recommendations, also known by its acronym in Spanish as the Inter-American
SIMORE.19 The Inter-American SIMORE is an online tool that systemati-
cally collects all recommendations made by the IACHR through its various
mechanisms. In particular, it is a platform to exchange and receive information
concerning efforts to monitor the Commission’s recommendations.
The Inter-American SIMORE plays two main roles. First, it enables users to
conduct specialized searches for various recommendations, such as published
merits reports, friendly settlement agreements, country reports, resolutions, and
recommendations of the Commission’s Annual Reports. At the same time, it also
gives registered users the opportunity to submit information concerning efforts
to monitor the recommendations made by the IACHR in the user’s country
and thematic reports and its resolutions. The Inter-American SIMORE will be
an essential tool to support the work of the Impact Observatory of the IACHR.
The Observatory is a platform established by the Commission by Resolution
02/19 of September 22, 2019 with the objective of reflecting, systematizing,
and making visible the impact of its actions in the defense and protection of
human rights in the region and in collaboration with States, civil society or-
ganizations, international organizations, and academia.20 The Commission has
also developed special mechanisms to follow up its recommendations, namely,
MESENI (Nicaragua), MESA for the Ayotzinapa case (Mexico), and MESEVE
18 Art. 27 Vienna Convention.

19 See IACHR Press Release 132/20, “Inter-American SIMORE,” June 10, 2020, <https://www.oas.
org/en/iachr/media_center/PReleases/2020/132.asp> (accessed November 15, 2021).
20 IACHR, “Impact Observatory,” Resolution 02/19, <https://www.oas.org/en/iachr/decisions/
pdf/Resolution-2-19-en.pdf> (accessed November 15, 2021).

(Venezuela). The purpose of these special mechanisms is to closely monitor the

situation in those countries so as to make recommendations both focused and
timely. In addition, the Commission and the government of Honduras estab-
lished a collaborative mechanism to provide technical assistance to implement
the recommendations made by the Commission in its country report of 2019.21
However, the Commission must make additional efforts. Notwithstanding
that the Commission’s recommendations are contained in various instruments
now systematized in the Inter-American SIMORE, emphasis must be placed
on the system of petitions and cases—due to its transformative impact. Some
proposals to obtain a higher degree of compliance could include a revision to
the contents of the recommendations, a more strategic use of the Court, and a
greater political dialogue with States and petitioners.
With regard to the contents of the recommendations, the Commission has
a duty to apply the concept of integral reparation, as developed by the Inter-
American System. The concept of integral reparation, derived from Article
63.1 of the American Convention, includes the accreditation of damages in the
material and immaterial sphere and the granting of measures such as the in-
vestigation of the facts; the restitution of rights, goods, and liberties; physical,
psychological, or social rehabilitation; satisfaction, through acts for the benefit
of the victims; guarantees of nonrepetition; and compensation for material and
nonpecuniary damage. The measures for integral reparation are contained in
the merits reports issued by the Commission in accordance with Article 50 of
the American Convention. Redressing human rights violations depends on ad-
equate reparation. Therefore, the recommendations in the merits reports must
ascertain that measures are ordered in relation to the damage infringed upon
the victim. In order for these recommendations to be effectively complied with,
they must be drafted in clear and precise wording that indicates the measure to
be implemented. Finally, the recommendation must be measurable and subject
to follow-up procedures.
In the case of States that recognize the contentious jurisdiction of the Court,
the Commission will always be able to initiate a procedure when States do not
comply with the recommendations contained in the merits report and victims
express their consent to proceed in that way. The Rules of Procedure of the
Commission prescribe a presumption in favor of sending cases to the Court
when the State has not complied with the recommendations. Article 45 of the
Rules of Procedure establishes that if the State in question has accepted the ju-
risdiction of the Court and the Commission believes the State has not complied
with the recommendations of the merits report, it shall refer the case to the Court,
21 IACHR, “Situation of Human Rights in Honduras,” August 27, 2019, OEA/Ser.L/V/II. Doc. 146,
<https://www.oas.org/es/cidh/informes/pdfs/Honduras2019.pdf> (accessed November 15, 2021).

unless there is a reasoned decision by an absolute majority of the members of the

Commission to the contrary. In addition, at the request of the State concerned,
Article 46 permits the Commission to consider suspending the three-month
time limit for cases to be referred to the Court, as established in Article 51.1 of
the American Convention, so long as the State demonstrates that it is willing and
able to implement the recommendations included in the merits report through
the adoption of concrete and adequate measures of compliance. To this end, the
Commission may take into account several factors, most importantly the posi-
tion of the petitioner.
Referrals to the Court have a powerful impact on reparations of human
rights violations and on the development of inter-American standards, espe-
cially for structural remedies. Before taking that decision, the letter and spirit
of the Convention and the Rules of Procedure require the Commission to take
measures to obtain compliance with recommendations contained in the merits
reports. Thus, the Commission is entrusted with the difficult decision of deter-
mining whether the merits reports has been complied with; if the Commission
decides that compliance has not occurred, then the case has to be sent to the
Court. Article 46.2 of the Rules of Procedure provides several factors, among
others, to be taken into account during the referral decision: (1) the position of
the petitioner, (2) the nature and seriousness of the violation, (3) the need to
develop or clarify the case law of the System, and (4) the future effect of the de-
cision within the legal systems of member States. It is in the interest of victims
to obtain full satisfaction and a duty of the Commission to obtain compliance
with its merits report. The possibility of a referral to the Court serves as leverage
to that purpose. However, the Commission has to make all efforts to fulfill its
mandate. There could be situations where the Commission sees no possibility of
fulfillment and a referral to the Court is the only possibility. Nevertheless, other
cases might be better resolved at the level of the Commission, for instance, when
there are procedural handicaps at the Court stage. Either way, the Commission is
bound to give due consideration to the position of the petitioner.
Keeping dialogic channels open with States is an important part of the
Commission’s work of obtaining the cooperation of States. Indeed, the
Commission’s practice has been to maintain a permanent dialogue with States.
This dialogue is even more important when seeking compliance. In recent years,
the Commission has started to convene working meetings with the parties in
cases with merits reports that might be referred to the Court. These meetings
have proved to be efficient at assessing the possibility of State cooperation
and at determining the best ways to obtain compliance. Beyond the system of
petitions and cases, political dialogue with States and civil societies is needed.
Civil societies play a fundamental role in beneficially shifting a State’s position.
As users of the System, civil society organizations represent victims, and their
legitimate expectation is to have a more efficient Inter-American System. In turn,

dialogue with member States fosters a common understanding on the regional
challenges to achieving the full enjoyment of human rights.
Sixty years after its foundation, the Inter-American Commission on Human

Rights remains the patrimony of the Americas. The Inter-American System
serves as an example of a multilateral construction of norms and standards
guided by the practical pursuit of having a direct impact in the lives of the men,
women, and children living in the region. The Commission has largely assisted
in building a common understanding of human rights values. It is in the interest
of all actors involved to keep the System in force in order to contribute to the
strengthening of national institutions and to protect victims of human rights
violations. It is also in the interest of the Commission to continue its perma-
nent strengthening process in order to adjust to new challenges and to update its
methods of work to achieve the full enjoyment of rights and fundamental free-
doms for all.
III.2
A Broader Look at the Transformative
Impact of the Inter-American Court
of Human Rights’ Decisions
By Pablo Saavedra Alessandri
1. Introduction
A fascinating feature of the Inter-American Court of Human Rights (the Court,

or IACtHR) is how it can produce a truly transformative impact on the protection
of human rights in the Americas,1 despite its operating budget’s constraints,2 and
the low number of cases presented before3 and resolved by4 the Court annually.5
The IACtHR issues decisions with a high degree of impact and relevance
that we might call transformative decisions. The IACtHR decisions’ impact and
1 See Armin von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America, The
Emergence of a New Ius Commune (Oxford 2017). Armin von Bogdandy, Mariela Morales Antionazzi,
and Eduardo Ferrer Mac-Gregor (eds.), Ius Constitutional Common (Institute for Constitutional
Studies of the State of Queretaro 2017). Javier García Roca and Encarna Carmona Cuenca (eds.),
Towards a Globalization of the Dertechos. The Impact of the Sentecias of the European Court and the
Inter-American Court (Thomson Reuters Arazandi 2017). Edgar Corzo Sosa, Jorge Ulysses Carmona
Tinoc, and Pablo Saavedra Alessandri (eds.), Impact of the Judgments of the Inter-American Court of
Human Rights (Tirant 2011). Javier García Roca et al. (eds.) The Dialogue between the European and
American Systems of Human Rights (Thomson Reuters 2012).
2 At its Forty-ninth Ordinary Session held on September 26, 2019, in Medellin, Colombia, the
General Assembly of the Organization of American States (OAS) approved a US$ 5,296,100 budget
for the IACtHR in 2020. Additionally, the IACtHR receives voluntary contribution from OAS
member States and other actors throughout international cooperation. See IACtHR, “Annual Report
2019,” 152–158, <https://www.corteidh.or.cr/docs/informe2019/espanol.pdf> (accessed February
5, 2022).
3 In 2005, only 10 cases were brought to the IACtHR. However, after this date the number of cases
began to increase (14 cases in 2006 and 2007, 9 cases in 2008, 12 cases in 2009, 16 cases in 2010 with,
23 cases in 2011, 12 cases in 2012, 11 cases in 2013, 12 cases in 2012, 11 cases in 2013, 19 cases in 2014,
19 cases in 2015, 14 cases in 2015, 16 cases in 2016, 2017, and 2018, and 32 cases in 2019. See IACtHR,
“2019 Annual Report,” 46, <https://www.corteidh.or.cr/docs/informe2019/espanol.pdf> (accessed
February 5, 2022).
4 The IACtHR issued 9 sentences of preliminary exceptions, merits, and reparations in the year
2010. In 2011, the Court issued 18 sentences; 21 in 2012; 16 in 2013; 16 in 2014; 18 in 2015; 21 in
2016; 14 in 2017; 28 in 2018; and 25 in 2019.
5 I would like to thank Attorney Elizabeth Jiménez Mora for her support and comments in
preparing this chapter.
Pablo Saavedra Alessandri, A Broader Look at the Transformative Impact of the Inter-American Court of Human Rights’
Decisions In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan,
Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Pablo Saavedra Alessandri 2024.
DOI: 10.1093/oso/9780197744161.003.0028
538 Pablo Saavedra Alessandri
transcendence can be seen from the perspective of the victims6 and from the
transformation of social reality stance. Thus, the Inter-American Court, on the
one hand, provides a window of hope for victims of human rights violations in
their quest for justice, truth, and reparation, and, on the other, it is a conduit
to drive structural changes in spaces where human rights are not yet effectively
guaranteed or a barrier to avoid human rights setbacks is not yet in place.
It is important to pause briefly to explain three different but concatenated
concepts: (1) compliance and implementation of a judicial decision, (2) its im-
pact, and (3) its significance.
According to the IACtHR rules and procedures, compliance and imple-
mentation are assessed by the Court’s supervision and monitoring procedures
which evaluates the concrete measures adopted by the State to comply with the
set of reparations ordered by the Court in its judgment.7 In this chapter, I ana-
lyze questions such as what are the mechanisms or institutional tools that the
Inter-American Court has to supervise its sentences. How do these institu-
tional mechanisms operate? Are these mechanisms effective? How does a State
comply with the reparations that were ordered? Are the State bodies in charge
of enforcing each of the reparations that were ordered? Are there internal
mechanisms in the States to comply with reparations? How long does it take for a
State to comply with reparations? What happens if a State does not comply with
a sentence? What role do the victims play in the implementation and compliance
with the decisions? Can other external actors help to comply with the judgments
of the Inter-American Court? How is the interaction between victims and the
State regarding compliance? What are the obstacles and resistances to achieving
effective compliance with decisions?8
When we talk about the impact of a judgment, we have generally focused on
a structural change perspective that focuses on the changes it may bring to the
interior of a State. These changes are normally conveyed through guarantee of
nonrepetition measures ordered by the Court to prevent facts similar to those
known to the Court from happening again.9 It is important to draw attention
6 Carlos Martin Beristain, Dialogues on Repair. Experiences in the Inter-American Human Rights
System (Inter-American Institute for Human Rights 2008), Tome I and Vol. II.
7 The Sentence Compliance Oversight Unit within the IACtHR Secretariat assesses the compli-
ance of each measure of redress that the Court ordered in its final judgment by conducting strict
scrutiny of the execution of its various components, as well as for reparations to materialize with
respect to each of the victims benefiting from the measures, with most cases being multiple victims.
IACtHR, “2019 Annual Report,” <https://www.corteidh.or.cr/docs/informe2019/espanol.pdf>
8 IACtHR, “Learn About Oversight Compliance with Judgment,” official website, available at
<https://www.corteidh.or.cr/conozca_la_supervision.cfm> (accessed February 5, 2022). IACtHR,

“Sentencing Compliance Supervision” (official website), <https://www.corteidh.or.cr/supervision.
cfm?lang=es> (accessed February 5, 2022).
9 Pablo Saavedra Alessandri, Guillem Cano Palomares, and Mario Hernández Ramos, “Repair
and Supervision of Sentecias,” in Javier García Roca and Encarna Carmona Cuenca (eds.),
Towards a Globalization of the Dertechos. The Impact of the Sentecias of the European Court and the
A Broader Look at the Transformative Impact 539
to the fact that so far the literature has only analyzed the transformative impact
through judgments arising from contention cases, leaving aside whether the
other jurisdictional functions of the Inter-American Court, such as advisory
opinions and provisional measures, may also have a transformative impact, as
well as avoid structural setbacks in the effective protection of human rights on a
given social reality.
Finally, I do not refer to the “significance” of a decision as the fulfillment of
reparations or structural impact, but taking into account the knowledge, accept-
ance, and empowerment that a decision provokes in the different social actors
according to their interests or communities of practice. Knowledge, acceptance,
and empowerment become the necessary engine to drive changes in social re-
ality or to prevent setbacks against the exercise and enjoyment of human rights.
Acceptance and empowerment occur through the dissemination of judicial ac-
tivity and the creation of spaces for dialogue and interaction with different social
actors.
In this chapter, we would like to expand the concept of structural impact to
include advisory opinions and provisional measures in its analysis, in addition
to contention cases. We will first take up the concept of structural impact of the
IACHR’s judgments through nonrepetition guarantees from two recent cases of
different natures and include a brief reflection on whether other forms of repara-
tion could have had similar impact. Secondly, we will look at the Court’s advisory
role and look at one of its last rulings, which clearly illustrates the transformative
impact on social reality that advisory opinions can have. Finally, we will look at
provisional measures and see how they can aid preventing structural setbacks or
providing structural protection to certain groups.
2. Structural Impact of Contention Cases
2.1. General Considerations about Reparations
The Inter-American Court of Human Rights is the international court that has
developed and deepened the most on the right to comprehensive reparation
for victims of human rights violations.10 In its jurisprudence, comprehensive
Inter-American Court (Thomson Reuters Arazandi 2017). Victor Abramovich, “From mass violations
to structural patterns. New approaches and classic tensions in the Inter-American System” [2009] 63
Journal of the Faculty of Law of the Pontifical Catholic University of Peru 95,138.
10 Sergio García Ramírez and Marcela Benavides Hernández, Reparations for Human Rights
Violations. Inter-American Jurisprudence (Ed. Porrúa 2014). Carlos Martin Beristain, “Dialogues
on Repair. Experiences in the Inter-American Human Rights System” [2008] 1 Inter-American
Institute for Human Rights. Andrés Javier Rousset Siri, “The concept of comprehensive reparation
reparation has various manifestations, depending on the nature of the case and
the dimension of the damage it seeks to repair. We could classify or regroup
reparations in six categories: compensation, restitution, rehabilitation, satisfac-
tion, investigation of the facts and sanction when appropriate, and guarantees
of nonrepetition. In turn, each of the categories of reparation can have a range
of modalities, depending on the violations declared by the Court and their
consequences.
With regard to guarantees of nonrepetition, the Court may order a State to
adopt legislative reforms, public policies, or change of practices in cases where
the legal rule or absence thereof, the implemented public policy or its deficit, the
existing practice or the absence thereof were the ones that served as the basis for
the violation generated.11
The reparation that entails regulatory change, such as the adoption of public
policies or change of practice, seeks to ensure that a structural failure that allowed
or served as the basis for the violation and consequently the international re-
sponsibility of the State is transformed or disjointed in order to prevent acts
of the same nature from happening again in order to effectively guarantee the
enjoyment of the rights and freedoms protected in the American Convention.
This type of reparation necessarily has a public scope or impact and is aimed at
solving structural problems by benefiting not only victims of the case but also
other members and groups of society. That is to say, they have general effects and
in turn acquire a dimension of prevention.12
In multiple cases, the Court has ordered the adoption of nonrepetition
guarantees that have resulted in structural reforms. This has happened, for ex-
ample with the reform of Chile’s Political Constitution on freedom of expres-
sion so that film censorship was eliminated and changed to a cinematic rating
regime;13 the declaration of invalidity and lack of legal effects of Peru’s amnesty
in the jurisprudence of the Inter-American Court of Human Rights” [2011] 1 International Journal
of Human Rights. Laurence Burgorgue-Larsen (coord.), Human rights in context in Latin America.
The Impact of the Inter-American Human Rights System on States Parties (Colombia, Ecuador, Haiti,
Mexico, Nicaragua, Peru, Dominican Republic, Uruguay and Venezuela) (Tirant lo Blanch 2016).
11 Principle 23. Non-repetition guarantees should include, as appropriate, all or part of the fol-
lowing measures, which will also contribute to the prevention of events similar to those that caused
the violation. See United Nations Organization, “Basic principles and guidelines on the right of
victims of manifest violations of international human rights standards and serious violations of in-
ternational humanitarian law to bring appeals and obtain reparations,” Resolution 60/147, December
16, 2005.
12 Pablo Saavedra Alessandri, Guillem Cano Palomares, and Mario Hernández Ramos, “Repair
and Supervision of Sentecias,” in Javier García Roca and Encarna Carmona Cuenca (eds.), Towards
a Globalization of the Dertechos. The Impact of the Sentecias of the European Court and the Inter-
American Court (Thomson Reuters Arazandi 2017).
13 Case “The Last Temptation of Christ” (Olmedo Bustos and others) v. Chile [2001] IACtHR, Ser. C
No. 73.
laws; the adequacy of terrorist legislation from both a procedural and substantive
perspective; ensured access to issues of public interest through the establishment
of a procedure for this purpose in Chile; creation of an effective mechanism for
demarcation and reclamation of ancestral lands of indigenous communities in
Nicaragua; legislative reforms to ensure the right to appeal a criminal ruling in
Costa Rica; restricting military jurisdiction for cases of human rights violations
in Mexico; criminalization of the crime of enforced disappearance in Bolivia;
modification of the provision of the penal code that refers to the concept of
danger of the agent in relation to the crime of murder in Guatemala; establish-
ment of a simple judicial remedy to control the decisions of the highest electoral
body affecting human rights in Mexico; restriction of military service for minors
in Paraguay; leaving the amnesty law in El Salvador, a reform on the regulations
of insult and slander in Argentina; and non-imposition of the mandatory death
penalty in Barbados.14
I would like to dwell on two sentences of a very different nature and rela-
tively recent enforcement that show the transforming impact of the IACHR’s
judgments on the social realities of countries.
2.2. Authorization and Access to In Vitro Fertilization—

Transforming the Hope of Having Children
The case of Artavia Murillo and Others (“In Vitro Fertilization”) v. Costa Rica
originated from a decision issued by the Constitutional Chamber of the Supreme
Court of Justice in 2000 when it declared unconstitutional the decree regulating
the technique of in vitro fertilization (IVF) and therefore prohibiting the prac-
tice of IVF in Costa Rica. The IACHR found15 that the State was internationally
responsible for violating, among others, the rights to private and family life and
14 Case Barrios Altos v. Peru [2001] IACtHR, Ser. C No. 75. La Cantuta v. Peru case [2006] IACtHR,
Ser. C No. 162; Case Norín Catrimán and others (Leaders, Members and Activist of the Mapuche
Indigenous People) v. Chile. [2014] IACtHR, Ser. C No. 279; Case Claude Reyes and others v. Chile
[2006] IACtHR, Ser. C No. 151; Mayagna Community (Sumo) Awas Tingni v. Nicaragua [2001]
IACtHR, Ser. C No. 79; Herrera Ulloa v. Costa Rica case. Preliminary Exceptions, Fund, Repairs and
Costs [2004] IACtHR, Ser. C No. 107; Case Radilla Pacheco v. Mexico [2009] IACtHR, Ser. C No. 209.
Case Fernández Ortega and Others v. Mexico. [2010] IACtHR, Ser. C No. 215. Rosendo Cantú case
and another v. Mexico. [2010] IACtHR, Ser. C No. 216; Trujillo Oroza v. Bolivia case [2000] IACtHR,
Ser. C No. 64; Fermín Ramírez v. Guatemala case [2005] IACtHR, Ser. C No. 126; Castañeda Gutman
v. Mexico case [2008] IACtHR, Ser. C No. 184; Case Vargas Areco v. Paraguay [2006] IACtHR, Ser. C
No. 155; Case Massacres of El Mozote and surrounding places v. El Salvador [2012] IACtHR, Ser. C
No. 252; Kimel v. Argentina case [2008] IACtHR, Ser. C No. 177; DaCosta Cadogan v. Barbados case
[2009] IACtHR, Ser. C No. 204. Boyce case and others v. Barbados [2007] IACtHR, Ser. C No. 169.
15 Judgment No. 2000- 02306 of March 15, 2000 issued by the Constitutional Chamber of the
Supreme Court of Justice, File No. 95-001734-007-CO.
sexual health, as well as the principle of equality and nondiscrimination to the

detriment of eighteen people.16
As a result, the Court ordered that Costa Rica, among other reparations: (a)
take measures to stop the prohibition of IVF practices and ensure that people who
wish to have access to that reproduction technique do so without encountering
impediments to the exercise of their rights; (b) regulate the implementation of
IVF and establish inspection and quality control systems of qualified institutions
or professionals developing this type of technique; c) include IVF within infer-
tility programs and treatments in its health service.17
Costa Rica initially terminated the IVF ban and subjected its implementation
to the approval of a law from the Legislative Assembly. At least three bills had
been presented, and none had made progress in the corresponding legislative
procedures. At the same time, representatives of the victims and other persons
interested in accessing the IVF technique filed various appeals for amparo before
the Supreme Court to annul the prohibition, so that the judgment of the Inter-
American Court would be complied with. These remedies were rejected, it was
argued, among other reasons, that it was not up to the Supreme Court to “order
the execution” of the judgments of the Inter-American Court or to “supply the
supervision of compliance with them.”18
As no progress had been made in complying with these reparations, the
Court convened a public Compliance Oversight hearing. At that hearing, the
State represented by its executive branch reported that it had drawn up a draft
executive decree authorizing and regulating IVF in order to comply with the
16 Case Artavia Murillo and Others (Fecundation in Vitro) v. Costa Rica [2012] IACtHR, Ser. C
No. 257.
17 Case Artavia Murillo and Others (Fecundation in Vitro) v. Costa Rica [2016] IACtHR, Sentencing
Compliance Supervision. Resolution of the Inter-American Court of Human Rights of February 26,
2016, 114, 115.
18 The three bills were: (1) No. 18,057 “Law on Fertilization in vitro and transfer of fertilized eggs”;
(2) No. 18.738 “Law on In Vitro Fertilization and Embryonic Transfer”; and (3) No. 18.824 “In Vitro
Fertilization Framework Law.” Both representatives of the victims filed amparo appeals in 2013.
“Representative Boris Molina filed two appeals for protection on behalf of twelve of the eighteen
victims of the present case, for the ‘non-compliance’ of the judgment issued by the Inter-American
Court. In addition, that representative brought another appeal for protection on behalf of two
other persons who are not victims of[l]‌case but who ‘suffer infertility and given their status are
candidates for in vitro fertilization’, and in ‘against the Costa Rican Social Security Box’ in order that
‘the judgment of the Inter-American Court gives them that reproductive right’. Representative May
Cantillano filed an appeal for 39 people who are not victims of the present case, and ‘against the
Ministry of Health, the Ministry of the Presidency, the Legislative Assembly and the Costa Rican
Social Security Box’ by the ‘incumplimiento’ of the Judgment issued by the Inter-American Court
and in order to ‘enable and respect the fundamental rights of persons suffering from infertility dis-
ease.’ ” Cfr. Case Artavia Murillo and Others (Fecundation in Vitro) v. Costa Rica [2016] IACtHR,
Sentencing Compliance Supervision. Resolution of the Inter-American Court of Human Rights of
February 26, 2016; Judgment No. 69-2014 issued by the Constitutional Chamber on January 7, 2014;
judgment No. 2014-001424 issued by the Constitutional Chamber on January 1, 2014; judgment No.
2014-02413 issued by the Constitutional Chamber on February 21, 2014, and judgment No. 2014-
3968 issued by the Constitutional Chamber on March 19, 2014.
judgment. The Court welcomed this State initiative as it sought to comply with
its judgment, as well as allowing and regulating the practice of IVF.19
A few days after the decree came into force, an unconstitutionality appeal was
filed against it for the alleged “ ‘violation and/or threat to [the] fundamental right
to life’ of the ‘conceived unborn’, and a ‘[v]‌iolation of the principle of reserve of
law’ ” that it represented. On February 3, 2016, the Constitutional Chamber is-
sued its decision by majority vote, declaring the appeal of unconstitutionality
valid, for violation of the principle of reservation of law. The Constitutional
Chamber ordered the annulment of the decree. With this decision of the
Constitutional Chamber, the prohibition of IVF was maintained, and it became
an obstacle for the effective fulfillment of the judgment of the Inter-American
Court.20
The Inter-American Court issued a Judgment Compliance Oversight decision
and noted that with the decision of the Constitutional Chamber, the only specific
measure taken by a State authority and body to comply with the judgment was
voided. It was noted that this inaction had a negative impact “considering the
passing of time without eliminating the IVF ban affected the possibility of people
undergoing this treatment in Costa Rica to have biological children, mainly
those who tried other treatments to deal with infertility or for those who had
only that option to procreate.” The Court recalled the immediate and binding ef-
fect of its rulings and noted that the IVF ban should be understood as manifestly
inconsistent with the American Convention, cannot produce legal effects or con-
stitute an impediment to the exercise of the rights protected in the Convention.
As a result, it indicated that the practice of IVF should be understood as author-
ized in Costa Rica.21
The IACHR carried out an analysis of the decree and established that it was in-
tended to comply with the judgment, and therefore positively valued the measure
taken by the executive branch. Because of all of the preceding, the Inter-American
Court provided that the decree be kept in force with the aim of preventing the
right to access the IVF technique and compliance with its judgment from being
illusory.22 As can be seen, the IACHR gave validity23 and revived the decree that
19 Decree No. 39210-MP-S called “Authorization for the realization of the assisted reproduction
technique of fertilisation in embryonic transference,” issued by the President of the Republic and the
Ministers of the Presidency and Health (hereinafter “the Decree”), published in the Official Journal
La Gaceta No. 178, Year CXXXVII of September 11, 2015.
20 IACtHR. Artavia case Murillo and others (Fecundation in Vitro) v. Costa Rica. Sentencing
Compliance Supervision. Resolution of the Inter-American Court of Human Rights of February 26,
2016, para. 18; Constitutional Chamber of the Supreme Court of Costa Rica. Resolution No. 2016-
001692 issued on February 3, 2016.
21 Case Artavia Murillo and Others (Fecundation in Vitro) v. Costa Rica. Sentencing Compliance
Supervision. Resolution of the Inter-American Court of Human Rights of February 26, 2016, paras.
20, 25, 26.
22 Ibid., paras. 33, 35.
23 Ibid., para. 36.
the Constitutional Chamber had declared invalid. This measure resulted in the
beginning of the practice of IVF technique in Costa Rica. The State first author-
ized two private establishments to implement the IVF technique. In 2019, the
Ministry of Health granted qualification to the High Complexity Reproductive
Medicine Unit of the Costa Rican Social Security for the realization of the prac-
tice of IVF.24
This sentence transformed the social reality of Costa Rican men and women
and especially of those who saw IVF practice as the last hope for biological chil-
dren. Now they have access to it in their own territory, until before the judgment
of the IACHR they could not do so. Today dozens of children have been born in
Costa Rica thanks to IVF both through the public and private health system.25
2.3. Ensuring Effective Recourse—Transforming Access

to Justice for Those Convicted by Councils of War
The Maldonado Vargas case and others v. Chile originated from the Supreme
Court’s refusal to review the convictions issued against twelve members of
the air force by the Councils of War during the military dictatorship in Chile.
In 2001, the victims filed an appeal for review of the convictions handed down
by the Councils of War before the Chilean Supreme Court, arguing that evi-
dence obtained under torture in those processes had been taken into account
in order to convict them.26 The appeal was rejected. The Inter-American Court
condemned the Chilean State for the violation of the right to legal protection by
not providing victims with an effective remedy that would allow them to review
and be able to leave without effect convictions of trials carried out by Councils of
War during the military dictatorship in Chile.27
The Inter-American Court ordered Chile, among various measures of rep-
aration: (a) to make available to the victims in this case an effective mech-
anism to review and/ or annul the conviction sentences; and (b) adopt
24 Case Artavia Murillo and others (Fecundación in Vitro) and Caso Gómez Murillo and others
v. Costa Rica. Sentencing Compliance Supervision. Resolution of the Inter-American Court of

Human Rights of November 22, 2019, para. 11; CCSS News, “CCSS puts at the service of the modern
population ‘in vitro’ fertilization unit” (July 17, 2019), <https:// www.ccss.sa.cr/ notic ias/
servic
ios_noticia?ccss-pone-al-servicio-de-la-poblacion-moderna-unidad-de-fertilizacion-in-vitro>
(accessed February 5, 2022); see Case Artavia Murillo and others (Fecundación in Vitro) and Caso
Gómez Murillo and others v. Costa Rica. Sentencing Compliance Supervision. Resolution of the Inter-
American Court of Human Rights of November 22, 2019.
25 La Nación. “71 babies conceived ‘in vitro’ have been born in Costa Rica since return from IVF”
(February 20, 2018), https://www.nacion.com/el-pais/salud/71-bebes-concebidos-in-vitro-han-nac

ido-en-costa/QBNL6C4NGVELBDN3UAR5K3M5TY/story/ (accessed February 5, 2022).
26 Maldonado Ordóñez v. Guatemala case [2016] IACtHR, Ser. C No. 311.
27 Maldonado Vargas case and others v. Chile [2015] IACtHR, Ser. C No. 300, para. 120.
legislative, administrative, or any other measures to make available to other per-

sons sentenced by courts martial an effective mechanism to review and annul
the convictions that were handed down in processes that could take into account
evidence and/or confessions obtained under torture. The Inter-American Court
gave Chile a wide margin of maneuver to seek an ideal mechanism to guarantee
effective access to justice for the victims of the case, as well as for all those who
had been convicted by the Council of War.28
The presidency created a study group to analyze the best way to comply with
the Court’s structural reparations.29 The result of the study led the Judicial
Prosecutor of the Supreme Court to present before it an appeal for review to nul-
lify the judgments of the Councils of War. In October 2016, the Second Chamber
of the Supreme Court annulled the indicated judgments.30 It is interesting to
note that in its decision, the Supreme Court changed its previous jurisprudence
on the matter, noting that the appeal for review was the procedural route and
therefore the ideal tool for those who were convicted by court-martial and want
to challenge those decisions.31
This Supreme Court ruling clearly exemplifies a constructive dialogue be-
tween Courts (Inter-American and national) for effective protection of human
rights and the important role that national courts can play in assisting in the
effective enforcement of Inter-American Court’s rulings.32 Thus, the Supreme
Court’s reinterpretation of the grounds of origin of the review appeal allowed
victims of the case to be guaranteed effective access to justice and to be able to
give effect to the convictions obtained in spurious proceedings. The review ap-
peal also became the appropriate structural mechanism for other people who
had been convicted in the same circumstances.
The Second Chamber of the Supreme Court of Chile, in 2016, changed its in-
terpretation and admitted the appeal for review, giving great weight to the judg-
ment of the Inter-American Court as an element of conviction to configure and
expand the grounds for review raised. The Supreme Court noted:
28 Ibid., paras. 132, 133, 167, and 170.

29 Ibid., para. 25.
30 Ibid.
31 It’s an important point out that in 2011, in a similar case, Chile’s Supreme Court again rejected
an appeal for review brought against convictions of the War Councils, arguing at that time that the
appeal could not be admitted because the occurrence or discovery of a new event or the appearance
of a document to allow the recourse to be accepted under the Code of Criminal Procedure had not
been verified. Cfr. Maldonado Vargas case and others v. Chile [2015] IACtHR, Ser. C No. 300, paras. 52
and 135.
32 Judgment issued by the Second Chamber of the Supreme Court of Chile on October 3, 2016, in
the case identified with role cause No. 27, 543-2016, caratula Chilean Air Force against Bachelet and
others.
[...] attending to the content and resolution of the ruling of the Inter-
American Court, is unavoidable in this case, given the mandate contained in
said statement to the State of Chile, this implies that the interpretation and
application of the procedural provisions that regulate the action of the revision
that has been proposed, contemplated in the Code of Military Justice and in the
Code of Criminal Procedure, should be carried out this time trying to adjust
to the reasoned and decided by that international court, in order to protect
the right to judicial protection that is considered violated by the absence of
resources to review the conviction sentences handed down by the Courts of
War in the process Rol No. 1-73 and, ultimately, make possible the effective and
fast mechanism to review and be able to annul those sentences that said ruling
provides.[...]33
Likewise, it is important to note that the Supreme Court of Chile in its judg-
ment recognized the fundamental role that domestic courts have, within the
framework of their competences, in the compliance or implementation of the
judgments of the Inter-American Court and the importance of exercising control
of conventionality so as not to incur in breach of its international commitments.
In this sense, it indicated:
It should not be forgotten that, as is typical of international law, States must

comply with their commitments in good faith, that is, with the will to make
them effective (this principle of international law emanates from the Vienna
Convention on the Law of Treaties, Article 26) and that in addition—or as a
consequence of the foregoing—, non-compliance with the ruling brings with it
the international responsibility of the State of Chile, in accordance with Articles
65 and 68 No. 1 of the Convention, so that all of its organs—including this
Court, it goes without saying—in the scope of its powers—they must take into
consideration these obligations, so as not to compromise the responsibility of
the State. Thus, in the interpretation and application of the norms that deal with
the review action, especially the invoked grounds for invalidation, it should not
be pretended that what is at stake is not only the resolution of a specific case,
but also the responsibility of the State of Chile in case of opting for a restrictive
reading of human rights and, in particular, of the right to an effective and rapid
mechanism to review and be able to annul the sentences handed down as a
corollary of an unjust process—as will be demonstrated—by the Councils of
War summoned in the process Rol N° 1-73.34
33 Ibid. Considering eleventh.

34 The Supreme Court of Chile pointed out that “however, it should be noted that, even if it had
not been delivered in the referred ruling by the C[orte IDH] in the case ‘Omar Humberto Maldonado
It is interesting to acknowledge Chile’s political goodwill in complying with

the sentence. The same remedy that had been denied to the victims of the case
and to others in equal situations was the appropriate mechanism for complying
with it and ensuring access to justice. This is a good reflection of what we could
call the harmonious and constructive pro persona dialogue between national
and international jurisdictions. This dialogue, on the one hand, transformed the
grounds for the judicial review appeal and, on the other, guaranteed access to
justice for a group of uniformed men.
2.4. Additional Reflections on the Transforming Impact

of Contention Cases
We have so far analyzed the transformative impact of the sentences through

comprehensive reparation in its dimension of guaranteeing non-repetition. It
would be convenient to begin to explore, if it is necessary to broaden the con-
cept of structural impact, to also include those symbolic reparations that in their
content carry a transforming dimension of social reality through acts of various
kinds. On many occasions, the Court in its judgments has ordered the creation
of a monument. Through this type of symbolic reparation expressed in an artistic
work, in addition to repairing the victim, it is sought to transform the citizen
who is the spectator of the artistic work of those spaces and experiences that are
dehumanized, collectively stigmatized, historically discriminated, and invisible
and that were known to the Court. With the artistic dimension of symbolic rep-
aration, it is sought that in the spectator citizen an awareness is created about the
events or social problems that have occurred, in order that they do not happen
again. The sum of these spectating citizens allows us to create new and collective
imaginary spaces, of a “never again.”35
In this chapter, I do not intend to delve deeper into this point. Nonetheless, it
is necessary to state it in order to begin to reflect on the matter and to be able to
Vargas and others versus Chile’, likewise, this Supreme Court should seek to adopt an interpretation
of national procedural rules leading to the result indicated in that ruling (...). In this order, the courts
have an obligation to attempt an interpretation of national standards affecting human rights that is
harmonious with the international obligations of the State in this field, even if those internal rules
themselves do not comply with the Convention. . . , to which it can be added that, in accordance with
the particularities of fundamental rights in a constitutional rule of law such as ours, those rights must
be interpreted according to certain criteria, and one of these, is the principle pro person, according
to which the rule or interpretation that gives greater effectiveness to the protection of human rights
should be preferred.”
35 Yolanda Sierra León (ed.), Symbolic Repair: Jurisprudence, Singing and Fabrics (Universidad
del Externado de Colombia 2018). Carlos Martin Beristain, “Dialogues on Repair. Experiences in
understand in its real dimension, the transformations of social reality that come
with the judgments of the Inter-American Court of Human Rights.
3. Consultative Opinions and Their Transformative Impact
3.1. General Considerations
The IACHR has an advisory function where it is called upon to unravel the
meaning and scope of international human rights standards that are submitted
for the Court’s consideration.36 The advisory function allows the Court to inter-
pret any rule of the American Convention by virtue of being the ultimate inter-
preter of the American Convention37 as well as “other treaties concerning the
protection of human rights in the American States” of what is its primary ob-
ject or may be parties thereof, States outside the Inter-American System.38 In
addition, the Court has noted that consultative opinions aim to “assist Member
States and OAS bodies in fully and effectively complying with their international
human rights obligations.” We can see that consultative opinions have a dual
purpose or function, on the one hand, to determine the meaning and scope of
the inter-American human rights system” [2008] Inter-American Institute for Human Rights, Tome
1. Case of the “Children of the Street” (Villagrán Morales and others) v. Guatemala [2001] IACtHR,
Ser. C No. 77, para. 103. IACtHR, Moiwana Community Case v. Suriname [2005] IACtHR, Ser. C No.
124, para. 218. Case of the “Mapiripán Massacre” v. Colombia [2005] IACtHR, Ser. C No. 134, para.
315. La Cantuta v. Peru case [2006] IACtHR, Ser. C No. 162, para. 236. Ticona Estrada case and others
v. Bolivia [2008] IACtHR, Ser. C No. 191, paras. 164 and 165. Case González and others (“Campo
Algodonero”) v. Mexico [2009] IACtHR, Ser. C No. 205, paras. 271 and 272. Case of the Massacre of
Las Dos Erres v. Guatemala [2009] IACtHR, Ser. C No. 211, para. 265. Case Radilla Pacheco v. Mexico
[2009] IACtHR, Ser. C No. 209, paras. 355 and 356. Cepeda Vargas v. Colombia case [2010] IACtHR,
Ser. C No. 213, paras. 228 to 230; Yolanda Sierra León (ed.), Symbolic Repair: Jurisprudence, Singing
and Fabrics (Universidad del Externado de Colombia 2018).
36 Article 64.1 of the American Convention states that: “Member States of the Organization may
consult the Court on the interpretation of this Convention or other treaties concerning the protec-
tion of human rights in American States. It may also be consulted, as far as they are responsible, by
the bodies listed in Chapter X of the Charter of the Organization of American States, as a matter for
them, as a matter of view, as a matter of view, by the Buenos Aires Protocol.”
37 Almonacid Arellano case and others v. Chile [2006] IACtHR, Ser. C No. 154, para. 124;
Consultative Opinion OC-21/14, para. 19, Consultative Opinion OC-22/16, para. 16, and Chinchilla
Sandoval case and others v. Guatemala [2016] IACtHR, Ser. C No. 312, para. 242.
38 Cfr. “Other Treaties” Subject to the Court’s Advisory Function (art. 64 American Convention on
Human Rights). Consultative Opinion OC-1/82 of September 24, 1982. Ser. A No. 1, decisive point
first. IACtHR, “Rights and guarantees of children in the context of migration and/or in need of in-
ternational protection,” Consultative Opinion OC-21/14 of August 19, 2014. Ser. A No. 21, para. 23.
IACtHR, “Ownership of legal rights in the Inter-American System of Human Rights (Interpretation
and scope of Article 1.2, Articles 1.1, 8, 11.2, 13, 16, 21, 24, 25, 29, 30, 44, 46, and 62.3 of the
American Convention on Human Rights, as well as Article 8.1A and B of the San Salvador Protocol),”
Consultative Opinion OC-22/16 of February 26, 2016. Ser. A No. 22, para. 26.
an international standard and, on the other, to assist States in better guaranteeing

and protecting human rights.39
The interpretation produced in an advisory opinion is binding for States. The
Court has pointed out that when carrying out a conventionality check, account
must be taken of what is stated by it both in the exercise of its consultative com-
petence and what has been developed in its contentious40 competence. In this
way, the issuance of an advisory opinion “constitutes a guide to be used to resolve
issues relating to the respect and guarantee of human rights within the frame-
work of protection (...) and thus prevent possible human rights violations.”41 In
this way, we could say that consultative opinions are binding as soon as they are
judged to be interpreted.42
As of the date of writing this chapter, the Court had issued twenty-six advisory
opinions.43 The Inter-American Court does not monitor their advisory opinions
and thus is not able to measure their real impact on American States. In my view,
the time has come for the Court to start monitoring the impact of its advisory
opinions. This monitoring should be different from what the Court does in con-
tentious cases, since it is not about monitoring compliance with the reparations
ordered but the change and good practices generated by an advisory opinion and
whether and how it can empower different actors according to their particular
interests.
To illustrate the transformative impact that advisory opinions may have, I will
draw on the advisory opinion requested by Costa Rica on two issues related to
the rights of LGBTIQ+people. The first concerns the recognition of the right to
gender identity and in particular the procedures for processing applications for
name change on the account of gender identity. The second issue concerns the
economic rights of same-sex couples.44
39 IACtHR, “Gender identity, and equality and nondiscrimination to same-sex couples. State
obligations in relation to name change, gender identity, and rights arising from a same-sex relation-
ship (interpretation and scope of Articles 1.1, 3, 7, 11.2, 13, 17, 18 and 24, in connection with Article 1
of the American Convention on Human Rights).” Consultative Opinion OC-24/17 of November 24,
2017. Ser. A No. 24, para. 22.
40 IACtHR, “The Effect of Reservations on the Entry into Force of the American Convention
on Human Rights.” Consultative Opinion OC-2/82 of September 24, 1982. Ser. A No. 2, para. 29.
IACtHR, “Rights and guarantees of children in the context of migration and/or in need of interna-
tional protection”. Consultative Opinion OC-21/14 of August 19, 2014. Ser. A No. 21, para. 31.
41 Cfr. IACtHR, “Rights and guarantees of children in the context of migration and/or in need
of international protection.” Consultative Opinion OC-21/14 of August 19, 2014. Ser. A No. 21,
para. 31.
42 Juan Carlos Hitters, “Are the pronouncements of the Commission and the Inter- American
Court of Human Rights binding? (control of constitutionality and conventionality)” [2008] 10 Ibero-
American Journal of Law Constitutional 131.
43 Official website of the Inter-American Court of Human Rights, Consultative Opinions, <https://
www.corteidh.or.cr/opiniones_consultivas.cfm> (accessed February 5, 2022).

44 The questions resolved by OC-24 were: 1. “Taking into account that gender identity is a cat-
egory protected by Articles 1 and 24 of the CADH, in addition to the provisions of numerals 11.2
3.2. The Consultative Opinion on Nondiscrimination against

LGBTIQ+ People
3.2.1. The Context Situation

It is important to note that the Court, before going into discussion of the questions
posed in the request for consultative opinion, conducted a brief context analysis
on the situation of the LGBTIQ+population in the region and warned that these
people have historically been victims of structural discrimination, stigmatiza-
tion, various forms of violence, and violations of their fundamental rights.45 This
context analysis highlighted a structural problem of vulnerability and lack of rec-
ognition of the rights of the LGBTIQ+population in the Americas.
In light of the structural problems experienced by the LGBTIQ+population,
the Court pointed out the importance that this advisory opinion will have in the
region since “it will make it possible to specify the state obligations in relation to
the rights of LGBTI persons within the framework of their obligations to respect
and guarantee the human rights of everyone under its jurisdiction. This will lead
to the determination of the principles and specific obligations that States must
comply with in terms of the right to equality and non-discrimination.” In other
words, this advisory opinion became a mechanism to assist the States in effec-
tively guaranteeing the protection of the rights of LGBTIQ+persons and a tool
to promote changes where situations of discrimination still exist.46
Regarding the rights of same- sex couples, the Inter- American Court
concluded that the American Convention, based on the right to equality and
nondiscrimination, protects the family bond that may derive from a relationship
between same-sex couples, and it should be done on the same terms as those
and 18 of the Convention does that protection and the CADH provide that the State must recognize
and facilitate the re-name of individuals, in accordance with the gender identity of each person?”;
2. “If the answer to the above consultation is yes, could it be considered contrary to the CADH that
the person interested in changing his first name can only go to judicial proceedings without admin-
istrative proceedings?”; 3. “Could it be understood that Article 54 of the Costa Rican Civil Code
should be interpreted, in accordance with the CADH, as meaning that persons wishing to change
their first name on the basis of their gender identity are not required to submit to the judicial process
contemplated there, but that the State must provide them with a free administrative procedure, fast
and accessible to exercise that human right?”; 4. “Taking into account that non-discrimination on the
grounds of sexual orientation is a category protected by Articles 1 and 24 of the CADH, in addition
to the provisions of numeral 11.2 of the Convention does that protection and the CADH provide that
the State recognizes all economic rights arising from a same-sex link?”; and 5. “If the above answer
is yes, is it necessary for a legal figure to regulate same-sex links, so that the State recognizes all the
economic rights arising from this relationship?” IACtHR, “Gender identity, and equality and non-
discrimination to same-sex couples. State obligations in relation to name change, gender identity,
and rights arising from a same-sex relationship (interpretation and scope of Articles 1.1, 3, 7, 11.2,
13, 17, 18 and 24, in connection with Article 1 of the American Convention on Human Rights).”
Consultative Opinion OC-24/17 of November 24, 2017. Ser. A No. 24, para. 3.
45 Ibid., para. 33.

46 Ibid., para. 21.
that are done with respect to heterosexual couples relationships. This protec-
tion transcends economic rights and extends to “all the rights and obligations
recognized in the domestic law of each State that arise from the family ties of
heterosexual couples.” This means that the States must guarantee access to all
existing concepts in domestic legal systems to ensure the protection of the rights
of families made up of same-sex couples. According to the Court, it may be nec-
essary for the States to modify the existing concepts, through legislative, judicial,
or administrative measures, to extend them to couples constituted by persons of
the same sex.47
Regarding the name change of trans people, the Court indicated that the
nonrecognition of gender identity constitutes a structural problem that reinforces
acts of discrimination against people who perceive themselves as having a gender
regardless of their assigned sex at birth. The name of a person is an attribute of
his or her personality that is essential for his or her free development and for
the realization of his or her right to identity. The prohibition of changing the
name according to self-perceived gender identity implies an impairment of the
rights of transgender people by not being able to be freely recognized according
to the person’s self-perception, since their official documentation does not match
their identity, being exposed to a situation of permanent revictimization. This
also creates practical problems in exercising rights. It increases their situation of
vulnerability by exposing them to situations of discrimination and generalized
violence. In this sense, the Court pointed out that the States are under the obli-
gation to recognize, regulate, and establish simple procedures or procedures for
the change of name, the adaptation of public records and identity documents in
accordance with the self-gender identity—perceived by each person. It indicated
that the administrative and notarial procedures are the ones that best suit these
elements.48
This interpretation of the Court gave rise to the activation of historical
lawsuits in various countries to allow marriage between same-sex couples. In
this sense, it is worth highlighting the impact of the advisory opinion regarding
equal marriage in Costa Rica and Ecuador. As we will see in both countries,
their constitutional courts advanced an evolutionary interpretation based on the
aforementioned advisory opinion to allow marriage between same-sex couples
47 Ibid paras. 191, 198, 228; Unconstitutionality actions accumulated and processed in files No.
15-013971-0007-CO, 15-017075-0007-CO and 16-002972-0007-CO. View Constitutional Chamber

of Costa Rica. Resolution No. 12782-2018 (August 8, 2018), <https://nexuspj.poder-judicial.go.cr/
document/sen-1-0007-875801> (accessed February 5, 2022).
48 Organization of American States, “Guidelines for the implementation of Consultative Opinion
No. 24 in the Framework of the Legal Recognition of Gender Identity. Implications of the Resolution
of the Inter-American Court for Civil Registration and Identification Institutions” (May 2020), 21;
ACT, “Towards the effective guarantee of the rights of children and adolescents: National Protection
Systems” November 30, 2017, para. 299; IACtHR, Consultative Opinion OC-24/17, para. 116.
in their respective countries. This is an example of the transformative impact

that advisory opinions can have on social realities and how they serve to em-
power various actors. On the other hand, with regard to the name change of trans
people in various countries, important steps have been taken to facilitate the
name change procedure, on this point we will see what happened in Costa Rica.49
3.2.2. Costa Rica
In August 2018, the Constitutional Chamber of the Supreme Court of Costa Rica
ruled in favor of same-sex couple marriage as a result of various appeals alleging
the unconstitutionality of Article 14(6) of the Costa Rican Family Code.50
The Constitutional Chamber harmoniously interpreted the national legal
system with the OC and declared Paragraph 6 of Article 14 of the Family
Code—which indicated that the marriage between same-sex persons was legally
impossible—unconstitutional. In this sense, it pointed out:
In accordance with the criteria of the Inter-American Court of Human Rights

that (advisory opinion OC-24/17), and in view of the power that the Chamber
has to graduate and measure the effects of its unconstitutionality judgments
(ordinal 91 of the Law of Jurisdiction Constitutional), the Legislative Assembly
is urged, in the use of its constitutionally assigned legislative function, to that
within 18 months, counted from the full publication of this pronouncement
in the Judicial Bulletin, adapt the national legal framework with the purpose
of regulating the scope and effects derived from couple relationships between
people of the same sex, in the terms set forth in this judgment. Consequently,
subsection 6 of numeral 14 of the Family Code remains in force for up to the
aforementioned period of 18 months.51
In accordance with what was ordered by the Constitutional Chamber, the

union between people of the same sex had to be regulated by the Legislative
Assembly by May 26, 2020, otherwise, marriage between couples of the same
sex would be allowed. The Legislative Assembly during the period of eighteen
49 Organization of American States (OAS), “Report on the Overview of the Legal Recognition of
Gender Identity in the Americas” (May 2020). OAS, “Report on Guidelines for the Implementation of
Consultative Opinion No. 24 in the Framework for the Recognition of Gender Identity. Implications
of Inter-American Court of Human Rights for Civil Registration and Identification Institutions”
(May 2020).
50 Article 14.6 of the Family Code provided:
ARTÍCULO 14. Marriage is legally impossible: [ . . . ] 6) Between people of the same sex;
Constitutional Chamber of Costa Rica. Resolution number No. 12782– 2018 (August 8,
2018) <https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-875801> (accessed February
5, 2022).
51 Constitutional Chamber of Costa Rica. Resolution No. 12782–2018 (August 8, 2018), <https://
nexuspj.poder-judicial.go.cr/document/sen-1-0007-875801> (accessed February 5, 2022).

months granted by the Constitutional Chamber did not legislate and, as a con-
sequence, from the indicated date, same-sex marriage was allowed. On May 27,
marriage between same-sex couples became lawful in Costa Rica.
Regarding the name change of trans persons, the Inter-American Court
answered one of the questions posed by Costa Rica regarding Article 54 of
the Civil Code of that country and indicated that its current wording would
be in accordance with the provisions of the American Convention, only if it is
interpreted, in the sense that the procedure established by that norm can guar-
antee that people who wish to change their identity data so that they are in ac-
cordance with their self-perceived gender identity, is a materially administrative
procedure. In this sense, it indicated that Costa Rica, in order to more effectively
guarantee the protection of human rights, may issue a regulation by which it
incorporates the aforementioned standards to the procedure of an administra-
tive nature which can provide in a parallel way, of conformity to what is stated in
the previous paragraphs of this opinion.52
As a consequence of the advisory opinion, the Supreme Electoral Tribunal
(TSE) of Costa Rica has become the State institution in charge, among others,
of the civil registry. On the occasion of OC-24, an Internal Commission of
the Supreme Electoral Tribunal issued a series of recommendations to ad-
just its regulations to those established by the Court. The foregoing resulted in
the Reform of the Regulations for the Civil Status Registry and Regulations for
the identity card with new characteristics, through which the procedure called
“name change due to gender identity” was created through a simple adminis-
trative procedure. Previously, it was a relatively cumbersome judicial procedure.
This allowed people who required rectification of their name due to gender iden-
tity to do so easily. Likewise, the Costa Rican authorities decided to eliminate the
reference to sex/gender from the identity card. The TSE approved in 2019 “the
Guidelines for Respectful and Equal Treatment, which compile mandatory com-
pliance criteria for respectful and equal treatment of LGBTI persons, both for the
Court officials and for those who come to request services.”53
As observed, the advisory opinion has had a transformative impact on the
Costa Rican social relationship since, as a consequence of this, marriage be-
tween same-sex couples was allowed and the change of names of transgender
people was also made more expeditious and simple. It is noteworthy how much

53 Official page of the Supreme Court of Elections of Costa Rica, <https://www.tse.go.cr/el_tse.
htm> (accessed February 5, 2022); OAS, “Overview of the Legal Recognition of Gender Identity
in the Americas” (May 2020), 47; Supreme Court of Elections of Costa Rica. Decree No. 6-2011.
Regulations on the Registry of the Civil State and Regulations on the Identity Card with new features
(reformed by Decree No. 7-2018), Articles 52–56, <http://www.pgrweb.go.cr/scij/Busqueda/Normat
iva/Normas/nrm_texto_completo.aspx?param1=NRTC&nValor1=1&nValor2=86510&nValor3=
112246&strTipM=TC> (accessed February 5, 2022).
the constructive dialogue among the Inter-American Court, the Constitutional

Chamber of the Supreme Court, and the Supreme Electoral Tribunal
strengthened the protection of the rights of LGBTIQ+people in Costa Rica.
3.2.3. Ecuador
On June 12, 2019, Ecuador’s Constitutional Court recognized same-sex marriage
under Sentences 10-18-CN/19 and 11-18-CN/19.54
In Case No. 10-18-CN/19, the Constitutional Court heard the constitutionality
inquiry on Articles 81 of the Civil Code and 52 of the Organic Law on Identity
Management and Civil Data. The Civil Judicial Unit queried the refusal of the
Ecuadorian Civil Registry to register the marriage of a same-sex couple based on the
aforementioned articles, since they only recognized the marriage between a man
and a woman.55
In its ruling, the Constitutional Court recalled that according to the
Ecuadorian Constitution, international human rights treaties that are more fa-
vorable to the Constitution itself prevail over any other legal norm or act of public
power. With this in mind, it recognized the importance of following the inter-
pretation of the Convention made by the Inter-American Court in its advisory
opinion for four reasons: (1) the Inter-American Court itself has established the
obligation to take into account, as part of the conventionality control, its juris-
prudence and precedents or guidelines; (2) the Court is the ultimate interpreter
of the American Convention; (3) the Court [IDH] has the rational requirement
to universalize the future of its ratio decidenci; and (4) the Inter-American Court
54 Constitutional Court of Ecuador. 10- 18-CN/19 Case No. 10- 18-

CN (Marriage between
same-sex persons) Concerning the constitutionality consultation of Articles 81 of the Civil Code
and 52 of the Organic Law on Identity Management and Civil Data. Article 428 Ecuador’s Political
Constitution states that if a judge or judge, ex officio or at the request of a party, considers that a rule
of law is contrary to the Constitution or international human rights instruments establishing rights
more favorable than those recognized in the Constitution, will suspend the processing of the case and
forward in consultation the file to the Constitutional Court, which within a period of no more than
forty-five days, will rule on the constitutionality of the rule; Constitutional Court of Ecuador. 11-18-
CN/19 Case No. 11-18-CN (Equal Marriage) Relating to the consultation issued by the Court of the
Criminal Chamber of the Higher Court of Justice of Pichincha About compatibility between Article
67 of the Constitution and Advisory Opinion OC-24 of the IHR.
55 Constitutional Court of Ecuador. Official Register, Constitutional Edition. Year III No. 96,
Quito, Monday, July 8, 2019; Article 81 of the Civil Code provided:

Art. 81. Marriage is a solemn contract by which a man and a woman come together in order
to live together. Procreate and help each other; Article 52 of the Organic Law on Identity
Management and Civil Data Established:
Art. 52. Authority before whom marriage is celebrated and registered. Marriage is the
union between a man and a woman and is celebrated and registered with the Directorate-
General for Civil Registration, Identification and Cedulation. Outside Ecuadorian territory,
it is held and registered with the diplomatic or consular agent, if at least one of the counter-
yents is Ecuadorian.
is the competent court to establish the responsibility of a State party for the viola-
tion of the Convention.56
Taking into account the preceding and AO-24, the Ecuadorian Constitutional
Court recognized same-sex couples’ right to marriage and the State duty to
legislate this right, otherwise it would be “parliamentarily unfair” and “would
provoke the international responsibility of the Republic of Ecuador before the
Inter-American Human Rights System.” Accordingly, the Constitutional Court
declared the expression “a man and a woman” of both provisions and the term
“procreate” in Article 81 unconstitutional. The Constitutional Court established
with erga omnes effect the substitutionary and subtractive unconstitutionality of
the terms mentioned so that the provisions would read as follows:
Article 81.-Marriage is a solemn contract by which two people come together

in order to live together and help each other.57
Article 52.-Authority before whom marriage is celebrated and registered.
Marriage is the union between two people and is celebrated and registered
with the General Directorate of Civil Registry and Identification. Outside of
Ecuadorian territory, it is celebrated and registered with the diplomatic or
consular agent, if at least one of the parties is Ecuadorian.58
The Constitutional Court urged the National Assembly to “comprehensively

review the marriage legislation to include same-sex couples as spouses, with the
same treatment as that granted to different-sex couples.”59
To the important contributions of the aforementioned judgment, what is
established in the framework of Case No. 11-18-CN/19 is added. The Court
of the Criminal Chamber of the Superior Court of Justice of Pichincha asked
the Constitutional Court about the compatibility between Article 67 of the
Constitution, which establishes that marriage is between a man and a woman,
and the advisory opinion OC-24 of the Inter-American Court.
The Constitutional Court analyzed the legal nature of an advisory opinion
of the Inter-American Court, concluding that it is “an authoritative” interpre-
tation by a supranational body: the Inter-American Court, whose jurisdiction
stems from an international treaty to which Ecuador is a party, and that Ecuador
has the obligation to comply in good faith, without being able to “invoke the
provisions of its internal law as justification for the breach of a treaty.” Based
on the preceding, the Constitutional Court concluded that “[t]‌he rights and
56 Constitutional Court of Ecuador. Official Register, Constitutional Edition. Year III No. 96,
Quito, Monday, July 8, 2019, 25.

57 Ibid., 30.
58 Ibid., 30, para. 98.
59 Ibid.
guarantees that derive from the authentic interpretation of the Inter-American

Court of Human Rights, which appear in the advisory opinions, are part of the
Ecuadorian legal system and have to be observed in Ecuador by any public au-
thority within the scope of its competence.” In addition, the Constitutional
Court recognized advisory opinions as part of the constitutionality block and
established their binding character.60
Based on this important conclusion and drawing upon AO-24 in its anal-
ysis, the Constitutional Court established that marriage is a constitutional
right that allows the exercise of the right to family and therefore Article 67 of
the Constitution complements the regulation and interpretation of the ACHR,
made by the Court through Advisory Opinion OC24/17, which recognizes mar-
riage between persons of the same sex. The Constitutional Court found that in-
stead of being contradictory, the domestic law and the American Convention
(as interpreted by the IACtHR) are complementary. As such, the Constitutional
Court concluded that neither a constitutional reform nor a legislative reform of
Articles 81 of the Civil Code and 52 of the Organic Law on the Management of
Identity and Civil Data were necessary, as these provisions should be interpreted
in light of the Court’s sentence No. 11-18-CN/19.61
In the present case there is evidence of what we could call a constructive
and harmonious dialogue between the Constitutional and the Inter-American
Court to guarantee the rights of same-sex couples. This dialogue was based on
the advisory opinion, which caused domestic courts to formulate a query to the
Constitutional Court on the basis of Article 428 of the Constitution, since the
Inter-American Court’s interpretation of the American Convention, in prin-
ciple, was more beneficial to same-sex couples than the norms of the Ecuadorian
legal system. The interpretation given by the Constitutional Court shows the
transformative impact that advisory opinions can have on a social reality.
4. Provisional Measures: Avoiding Structural Setbacks,

Providing Structural Protection
The American Convention, in Article 63.2, expressly empowers the Inter-

American Court to adopt provisional measures in cases of extreme gravity and
urgency and, when necessary, to avoid irreparable harm to persons. The Inter-
American Commission on Human Rights is the competent body to request
provisional measures before the Court when a case is under the Commission’s
procedures. However, when a case is brought before the Court, either in the
60 Ibid., paras. 80, 130, 300.

61 Ibid., paras. 112, 130.
merits stage or in the supervision of compliance with the judgment, in addition

to the Commission, the victims and their legal representatives are competent to
request provisional measures before the Court.62
According to the jurisprudence of the Inter-American Court of Human
Rights, provisional measures may be of a precautionary nature, to ensure the
outcome of the proceedings,63 or of a protective nature, to protect the rights of
persons.64
Recently, the Inter-American Court issued two important resolutions on pro-
visional measures in the framework of cases that were in the phase of supervi-
sion of the sentence and that have had a structural impact. One of them refers to
the order to file an amnesty bill in Guatemala that affected compliance with sev-
eral cases with regard to the duty to investigate serious human rights violations
that occurred during the internal armed conflict. The other resolution refers to
the situation of extreme vulnerability in which a group of migrants found them-
selves as a result of the restrictive movement measures ordered by Panama and
the closure of borders in the framework of the COVID-19 health emergency.
4.1. Archivor Amnesty Bill: Avoiding Structural Retracement
Within the monitoring compliance framework of the case of Members of the

Chichupac Village and neighboring communities of the Municipality of Rabinal
v. Guatemala, the victims’ legal representatives requested provisional measures
because the legislative process of a draft amnesty law was underway. It was in-
dicated that if it were approved and turned into law, the judgment of the Court
regarding the duty to investigate the events that occurred in the case would be
made illusory and that impunity would be caused in this and other cases.65
62 As regards gravity, for the purposes of provisional measures, the Convention requires that it be
“extreme,” i.e., to be at its highest or highest degree. The urgent nature implies that the risk or threat
involved is imminent, which requires that the response to remedy them be immediate. Finally, as
regards irreparable harm, there must be a reasonable likelihood that it will materialize and should
not fall on goods or legal interests that may be repairable; Article 27.2 of the Rules of Procedure of
the Court IDH states: “The case of matters not yet before it, the Court may act at the request of the
Commission”; Article 27.3 of the Rules of Procedure of the Court provides: “The court’s contention
cases, victims or alleged victims, or their representatives, may submit directly to the Court a request
for interim measures, which shall relate to the subject matter of the case.”
63 Cfr. Herrera Ulloa case for Costa Rica [2001] IACtHR, Provisional Measures. Resolution of
the Inter-American Court of Human Rights of September 7, 2001, Considering 4, and People of the
Miskitu Indigenous People’s Communities of the North Caribbean Region with respect to Nicaragua
[2018] IACtHR, Extension of Provisional Measures. Resolution of the Inter-American Court of
Human Rights of August 23, 2018, Considering 3.
64 Case Members of the Chichupac Village and neighboring communities of the Municipality of
Rabinal, Caso Molina Theissen and 12 other Guatemalan Cases v. Guatemala [2019] IACtHR, re-
cital 5.
Rabinal v. Guatemala [2016] IACtHR, Ser. C No. 328. In that judgment, the Court had ordered
After the public hearing, the Court analyzed the amnesty bill taking into ac-
count the impact that its approval could have in that and other prior Guatemalan
cases where the State international responsibility was already established. In
those cases, the Court held that Guatemala has the duty to investigate the facts
and apply the corresponding sanctions to those responsible. This is how the
analysis was made in the case Members of the Chichupac Village and neighboring
communities of the Municipality of Rabinal and another twelve cases that were in
the stage of supervision of compliance with the judgment.66
The Court observed that the amnesty bill sought to reform the National
Reconciliation Law by repealing its Article 8 and declaring “amnesty or total
extinction of criminal responsibility for all crimes committed” in the internal
armed confrontation. In addition, in Article 567 the draft noted:
[...] Any person who has been tried and is in compliance with a sentence or
in criminal proceedings and measures of coercion were decreed, [...] must be
ordered amnesty and dismissal in their case, and their freedom ordered by the
court corresponding within twenty-four hours. The judicial, ministerial, police
or penitentiary authority that does not comply with this rule will incur the
crimes of Malicious Retardation, Denial of Justice and Illegal Detention.68
The Court established that the approval of this law would have a negative
and irreparable impact on the victims’ right of access to justice. It would con-
tradict prior sentences ordered against Guatemala regarding the impossibility
of applying amnesties to those responsible for serious crimes and violations
of human rights. The bill would also be incompatible with Articles 8 (Judicial
that all obstacles, de facto and de jure, should be removed and that impunity should be effectively
investigated enforced disappearances, forced displacement, alleged torture, extrajudicial executions,
sexual rape, and forced labour, as well as allegations of crimes against humanity, war crimes, and/or
genocide. The Court expressly noted that in order to comply with this obligation, no amnesty laws or
limitation provisions, or purported exclusions from liability, may not be applied, which are in fact a
pretext for preventing the investigation.
66 Case Members of the Chichupac Village and neighboring communities of the Municipality
of Rabinal v. Guatemala [2016] IACtHR, Ser. C No. 328, paras. 316 and 318; Case Members of the
Chichupac Village and neighboring communities of the Municipality of Rabinal, Caso Molina Theissen
and 12 other Guatemalan Cases v. Guatemala [2019] IACtHR, Provisional Measures and Sentencing
Compliance Supervision. Resolution of the Inter-American Court of Human Rights of March 12,
2019, paras. 28 and 55.
67 In its jurisprudence with respect to several Guatemalan cases, the Court has emphasized that
the National Reconciliation Act expressly provided, in Article 8: “The termination of the criminal lia-
bility referred to in this law shall not apply to crimes of genocide, torture and enforced disappearance,
as well as those crimes that are imprescriptible or non-extinguishing of criminal liability in accord-
ance with domestic law and international treaties ratified by Guatemala.”
68 Initiative that provides for the approval of reforms to Decree No. 145-96 of the Congress of the
Republic, Law on National Reconciliation. Registration Number 5377, Article 5.

Guarantees), 25 (Judicial Protection), and 2 (Duty to Adopt Provisions of

Domestic Law) of the American Convention and the Court’s solid jurispru-
dence. On the other hand, the Court pointed out that what is indicated in the
bill regarding the release of convicted and accused persons within a period of
twenty-four hours and expose judicial operators who question the law or their
release to a possible criminal penalty. It affects judicial independence by having
a chilling effect that prevents an autonomous exercise of the judicial function.
This put pressure on judges and other judicial operators who wanted to carry out
a control of conventionality of the referred law, if they were exposed to criminal
sanctions.69
In this way, the Court concluded that it was facing a serious, urgent, and po-
tentially irreparable situation, since the passing of the bill would by itself consti-
tute a serious breach of Guatemala’s obligations regarding the case of Members
of the Chichupac Village and neighboring communities of the Municipality of
Rabinal and twelve other cases that are in the stage of monitoring compliance
with judgment. Likewise, the victims’ access to justice would be illusory since
a mechanism of structural impunity would be being created with respect to se-
rious human rights violations, crimes against humanity and genocide, an issue
that also openly contravenes the established jurisprudence of this Court, the
American Convention on Human Rights and other instruments of international
human rights law. In view of the foregoing, the Court expressly ordered the State
to interrupt and archive the aforementioned bill.70
Making an analogy to certain developments in constitutional matters, such as
the unconstitutional state of affairs, what the Court did was to prevent an uncon-
stitutional state of affairs from being created in Guatemala by attempting to create
a scaffolding of structural impunity regarding serious human rights violations,
a question that is manifestly antagonistic to the American Convention and the
repeated jurisdiction of the Court. It is worth recalling the jurisprudence devel-
oped by the Inter-American Court in the Barrios Altos case where it declared that
Peru’s amnesty law lacked validity and legal effects.
It is clear that the bill directly affected all Guatemalan cases in the compliance
supervision stage that investigation concerning serious human rights violations
had been ordered. Here the provisional measure had a precautionary dimension
in the sense of ensuring compliance with the sentence. Moreover, the provisional
measure acquired a tutelary dimension, in terms of protecting the right of ac-
cess to justice for all victims, which prevented a structural setback and built a
Rabinal, Caso Molina Theissen and 12 other Guatemalan Cases v. Guatemala [2019] Provisional
Measures and Sentencing Compliance Supervision. Resolution of the Inter-American Court of
Human Rights of March 12, 2019, para. 46.
70 Ibid., para. 52.
scaffolding of generalized impunity in Guatemala regarding the serious human

rights violations from the country’s internal armed conflict. Finally, the provi-
sional measures helped to avoid that the State intimidated judges, since if the
bill had been approved, judicial independence would be affected as judges that
challenged or refused to apply the amnesty law would be exposed to criminal
sanctions.
4.2. Immediate Protection and Adoption of Measures

to Protect the Lives, Health, and Integrity of Migrants
The case of Vélez Loor v. Panama addresses the detention of Mr. Jesús Tranquilino
Vélez Loor, an irregular migrant of Ecuadorian nationality sentenced to two
years of deprivation of liberty. The Inter-American Court held that Panama was
internationally responsible. Among other measures of reparation, the Court or-
dered as a guarantee of nonrepetition and with a structural nature that the State
adapts the establishments destined to the detention of people for immigration
reasons. According to the Court:
The State must, within a reasonable period of time, adopt the necessary
measures to have establishments with sufficient capacity to house the persons
whose detention is necessary and proportionate in the specific case due to
migration issues, specifically adequate for such purposes, offering material
conditions and an appropriate regime for migrants, and whose staff is civilian
and is properly qualified and trained.71
In the context of the crisis caused by the COVID-19 pandemic, the victims’
representatives submitted to the Court a request for provisional measures in
order to protect the rights to life, health, and personal integrity of all migrants
held in the migratory centers in the Darien region of Panama as these were not
adequate to meet the needs of migrants. The representatives requested the provi-
sional measure based on the structural reparation ordered by the Court.72
The Inter-American Court observed that in Panama, as a result of the var-
ious measures adopted to prevent the spread of COVID-19, a critical situation
was occurring in the migrant population. This is the result of the order to close
the borders and the limitation of the right of movement to migrants on their
71 Vélez Loor v. Panama case [2010] IACtHR, Ser. C No. 218, resolution point 15.
72 Vélez Loor v. Panama case. Provisional Measures [2020] IACtHR; Adoption of Provisional
Measures. Resolution of the Inter-American Court of Human Rights of July 29, 2020, visa 2; put ur-
gent action, information and hearing, as well as the data provided by the Ombudsman’s Office Group
United Nations Inter-Agency on Human Mobility during the interim measures procedure.
way to the northern countries. This caused a situation of overcrowding in the

Darien migration stations, making it difficult to adopt adequate measures of so-
cial distancing and hygiene recommended by the World Health Organization to
avoid the spread of COVID-19, as well as the provision of health, water, shelter,
and food. It was registered that there were infections with COVID-19 among
migrants and State agents resident in the area.73
The Court concluded that Panama has a special position as guarantor of the
rights of the people who are in its custody at the Immigration Reception Stations
and that it was evident “the existence of a risk to the health, personal integrity
and life of various people, whose severity warrants immediate intervention in
favor of a group of people in vulnerable situations, such as migrants and other
foreigners in the context of human mobility who may require international pro-
tection, a vulnerability that is increased by the pandemic.”74
It is interesting to note that the Court ordered a wide and varied catalog of
measures to Panama to address the urgent and serious situation of its migrant
population. Among others, the Court pointed out that the State should reduce
overcrowding; guarantee respect for the principle of non-refoulement of all for-
eign persons; adopt measures to prevent the risk of violence; establish protocols
or action plans for the prevention of the contagion of COVID-19 and the care
of infected migrants; provide migrants with free and nondiscriminatory access
to healthcare services; provide pregnant women with free access to sexual and
reproductive healthcare services as well as maternity care services, and pro-
vide adequate healthcare services for girls and boys; adopt the necessary meas-
ures to overcome language and cultural barriers that hinder access to health
and information; continue with the free provision of masks, gloves, alcohol,
and disposable towels, promote information on personal hygiene measures
recommended by health authorities, provide sufficient food and drinking water
for personal consumption, with special consideration of pre-post-natal nutri-
tional requirements; guarantee access to the Migration Reception Stations of the
Ombudsman’s Office and other independent monitoring mechanisms, as well as
international organizations and civil society; prevent the measures adopted from
promoting xenophobia, racism, and any other form of discrimination.75
In the situation described, the adoption of the provisional measure arises
from a guarantee of nonrepetition and acquires a protective dimension to give
Measures. Resolution of the Inter-American Court of Human Rights of July 29, 2020, para. 8; the
Court also finds the emergency requirement, as long as the State reported that, as of May 12, 2020, 58
positive cases of migrants had been detected in La Peñita, a figure that evolved from 158 to June 30,
2020 in Darien, including the contagion of officials.
Measures. Resolution of the Inter-American Court of Human Rights of July 29, 2020, para. 23.
75 Ibid., para. 35.
structural protection to health, life, and integrity to a group of migrants who

were in a situation of aggravated vulnerability as a result of the pandemic.
This chapter examined the structural impact of the Inter-American Court of

Human Rights’ decisions on the social reality of some States under its jurisdic-
tion. Recognizing that the impact of a decision may well go beyond a merely
State-centered transformation through the guarantee of nonrepetition, the
decision’s impact on the base of a broader construction of knowledge, accept-
ance, and empowerment within a broader community of practice as a whole
will be of interest. Two very different judgments, the case of Artavia Murillo and
Others (“In Vitro Fertilization”) v. Costa Rica and the case of Maldonado Vargas
and others v. Chile, were introduced to highlight how comprehensive reparation
in its dimension of guarantee of nonrepetition has had a transforming impact
on social realities. The jurisprudence of the Court has hence provided concrete
content to the obligation to provide reparations by looking at the harm and im-
pact that a human rights violation produces, both in an individual and collective
dimension within diverse forms of social interaction. Such jurisprudence has led
to the adoption of public policies, legislative modifications, and changes in State
practices, among other things, and the adoption of new laws. Reparations turn
the judgments into a living instrument.
Furthermore, the Court’s social impact is also produced by the advisory
opinions and provisional measures. The impact of both of them is reflected in
good practices and in the empowerment of different actors according to their
particular interests. It is also noteworthy that advisory opinions rest on dem-
ocratic and participative elements, as there is an open participation for all
Organization of American States member States, international organizations,
civil society organizations, and academia, among others. They hence constitute
a particular fruitful source of a collective construction of the law, which not only
give rise to the Court’s binding interpretations for States but which are also prone
to be received by a broader community of practice that can amplify their impact.
Provisional measures are equally significant when talking about impact. These
measures, adopted in cases of extreme gravity, urgency, and necessary to avoid
irreparable harm to persons, avoid structural setbacks and provide structural
protection. They can and in many cases should be included within the impact
analysis, which by their nature can prevent structural setbacks and provide pro-
tection to certain groups.
Finally, a harmonious and constructive pro persona judicial dialogue be-
tween the national and inter-American courts is crucial when implementing the
judgments of the Inter-American Court and giving life to the advisory opinions
in the national legal systems. Likewise, it is important to highlight how other
powers of the State can help provide the Inter-American Court’s judgments
with effectiveness and thus promote structural changes. The varied topics which
the Court has addressed, in continuous contact with a broader community of
practice, have strengthened the work of the Court itself and nurtured an inter-
American legal system, with the interpretation of the American Convention and
other treaties that form part of the inter-American corpus iuris.
III.3
Addressing Conceptual Challenges
Compliance and Impact
By Aníbal Pérez-Liñán, Kelly Morrison, and Luis L. Schenoni
1. Introduction
This chapter argues that time is a fundamental consideration to understand

how States implement the orders of the Inter-American Human Rights System
(IAHRS). Time is relevant not only to assess delays in legal outcomes but also to
conceptualize variation in the causes of compliance. Given this premise, we pro-
pose a new set of criteria to assess levels of compliance and illustrate the use of
those criteria with extensive evidence from the Inter-American Court of Human
Rights (IACtHR). The proposed approach shows that compliance is sometimes
at odds with broader transformative impacts, a point underscored toward the
end of the chapter.
Our focus on the IACtHR allows us to place growing concerns about a crisis
of compliance in proper perspective. The Court expects full compliance with
its rulings for the sake of the victims of human rights abuses.1 Reparations
for victims may include State recognition of human rights violations, finan-
cial compensation, the prosecution of perpetrators, or institutional reforms
to prevent abuses from recurring. Yet the Inter- American Court has few
2
mechanisms to enforce such orders. Although the Court issues annual reports
and, in extreme cases, can invoke Article 65 of the American Convention
of Human Rights (ACHR), the General Assembly of the Organization of
American States rarely addresses compliance issues.3 Member States also face a
1 Antônio Augusto Cançado Trindade, “Compliance with Judgments and Decisions— The
Experience of the Inter-American Court of Human Rights: A Reassessment.” Lecture presented at
the European Court of Human Rights, Strasbourg (January 31, 2014).
2 In this chapter, we use the terms “compliance” and “implementation” as synonymous to avoid ex-
cessive repetition, although we understand that these terms may convey subtle differences. Similarly,
we sometimes refer to reparation measures ordered by the Court as “orders,” aware that the Court
employs this English term to refer instead to supervision resolutions.
3 See Cecilia M. Bailliet, “Measuring Compliance with the Inter- American Court of Human
Rights: The Ongoing Challenge of Judicial Independence in Latin America” [2013] 31 Nordic Journal
of Human Rights 477, 479. Article 65 of the ACHR establishes: “To each regular session of the General
Aníbal Pérez-Liñán, Kelly Morrison, and Luis L. Schenoni, Addressing Conceptual Challenges In: The Impact of the
Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and
Mariela Morales Antoniazzi, Oxford University Press. © Aníbal Pérez-Liñán, Kelly Morrison, and Luis L. Schenoni 2024.
DOI: 10.1093/oso/9780197744161.003.0029
Addressing Conceptual Challenges 565
variety of compliance hurdles, including a lack of political will and institutional

capacity.4
Observers have lamented the ongoing crisis of compliance in the Inter-
American System, which continues to cast doubt on its effectiveness.5 As César
Rodríguez Garavito and Celeste Kauffmann point out, though it is undeniable
that the Court has made progress in promoting human rights, “it is equally evi-
dent that the implementation of reparation and non-repetition measures ordered
by the Commission and the Court is scant.”6 Indeed, recent research suggests
that noncompliance is widespread, particularly for reparations demanding in-
stitutional change. Damián A. González-Salzberg finds that implementation
rates range between 3 percent and 31 percent for measures requiring prosecu-
tion or legislative changes.7 Darren Hawkins and Wade Jacoby report compli-
ance rates between 7 percent and 19 percent for similar measures. In recent years
the Court itself implemented a strategic plan to overcome widespread “practices
of impunity.”8
In this context of perceived crisis, we focus on a technical issue with signif-
icant implications: the definition and measurement of compliance. We show
Assembly of the Organization of American States, the Court shall [report] cases in which a state has
not complied with its judgments, making any pertinent recommendations.” The Court has used this
procedure as the last recourse to expose noncompliance.
4 Ignacio Alvarez et al., “Reparations in the Inter-American System: A Comparative Approach
Conference.” [2007] 56 American University Law Review 1375, 1454. Courtney Hillebrecht,
Domestic Politics and International Human Rights Tribunals (Cambridge University Press 2014).
Sabrina Vannuccini, “Member States’ Compliance with the Inter-American Court of Human
Rights’ Judgments and Orders Requiring Non-Pecuniary Reparations” [2014] 7 Inter-American and
European Human Rights Journal 225.
5 Jorge Calderón Gamboa, “Fortalecimiento del rol de la CIDH en el proceso de supervisión
de cumplimiento de sentencias y planteamiento de reparaciones ante la Corte IDH” [2014] 10

Anuario de Derechos Humanos 105–116. Trindade (n. 1). Elise Mara Coimbra, “Inter-American
System of Human Rights: Challenges to Compliance with the Court’s Decisions in Brazil” [2013]
10 Sur: International Journal on Human Rights 57–74. Vittorio Corasaniti, “Implementación de las
sentencias y resoluciones de la Corte Interamericana de Derechos Humanos: un debate necesario”
[2009] 49 Revista IIDH 13–28. César Rodríguez Garavito and Celeste Kauffmann, “From Orders
to Practice: Analysis and Strategies for Implementing Decisions of the Inter-American Human
Rights System,” in Camila Barreto Maia et al., The Inter-American Human Rights System: Changing
Times, Ongoing Challenges (Due Process of Law Foundation 2016), 249–284. Mónica Pinto, “The
Role of the Inter-American Commission and Court of Human Rights in the Protection of Human
Rights: Achievements and Contemporary Challenges” [2013] 2 Human Rights Brief 34–38.
6 Rodríguez Garavito and Kauffmann (n. 5), 251.
7 Damián A. González- Salzberg, “The Effectiveness of the Inter- American Human Rights
System: A Study of the American States’ Compliance with the Judgments of the Inter-American
Court of Human Rights” [2010] 15 International Law: Revista Colombiana de Derecho Internacional
115–142. Damián A. Gonzalez-Salzberg, “Do States Comply with the Compulsory Judgments of the
Inter-American Court of Human Rights? An Empirical Study of the Compliance with 330 Measures
of Reparations” [2013] 13 Revisto do Instituto Brasileiro de Direitos Humanos 93–114.
8 Strategic Plan: 2017– 2021 (2017) Inter-American Commission on Human Rights. Darren
Hawkins and Wade Jacoby, “Partial Compliance: A Comparison of the European and Inter-American
Courts of Human Rights” [2010] 6 Journal of International Law & International Relations 35–85.
566 Aníbal Pérez-Liñán et al.
that existing metrics cannot give a full picture of aggregate levels of compli-
ance within the Inter-American System. Most reports measure compliance by
assessing the percentage of reparations implemented within a particular period
of time. However, such measures cannot account for the time it takes for States
to comply. Because the Court’s caseload has increased in recent years,9 it is diffi-
cult to discern whether rates of compliance have decreased over time, or whether
more cases are now at the supervision stage.
We advocate an alternative approach, one that considers not only whether
a State complies with a given reparation measure but also how long it takes
them to do so. We describe this analytic perspective as a discrete-time ap-
proach, for reasons explained in the next section. Although a discrete-time
approach can help scholars and practitioners evaluate levels of compli-
ance more accurately, it has rarely been applied to an analysis of the Inter-
American Court.10
The chapter proceeds through three sections. In section 2, we introduce
the discrete-time approach for assessing rates of compliance then discuss the
relevance of time as a crucial dimension of implementation before comparing
two traditional (static) metrics of compliance against two discrete-time met-
rics. We introduce the concepts of a yearly probability of compliance and an
expected time for compliance (ETC) and document their objective equiv-
alence. Section 3 illustrates these concepts with data from all cases decided
by the IACtHR until 2018. In addition to comparing Latin American States,
this section shows that the implementation of Court orders follows a distinc-
tive life cycle, as the yearly probability of compliance varies over time. There
is a window of opportunity in which States tend to comply, but compliance
becomes less likely the longer a reparation remains under supervision. The
final concluding section 4 addresses the distinction between compliance and
impact. Though it is true that the effectiveness of the Inter-American System
rests “to a large measure on compliance with the decisions of its organs,”11
we identify four distinct patterns of alignment between compliance and im-
pact: direct transformative impact, indirect transformative impact, State re-
sistance, and backlash.
9 Nelson Camilo Sánchez and Laura Lyons Cerón, “The Elephant in the Room: The Procedural
Delay in the Individual Petitions System of the Inter-American System” in Camila Barreto Maia et al.,
The Inter-American Human Rights System: Changing Times, Ongoing Challenges (Due Process of Law
Foundation 2016).
10 For a notable exception, see Francesca Parente, “Past Regret Future Fear: Compliance with
International Law” (DPhil thesis, University of California 2019).

11 Annual Report: 2017–2021 (2018) Inter-American Commission on Human Rights 144.
2. Improving Inter-American Standards: Compliance

in Time
Compliance with international court rulings necessarily involves a temporal

dimension. States must adapt their behavior in order to conform to a norm or
ruling,12 and because any change in behavior is necessarily never immediate,
time is a crucial dimension to consider when conceptualizing and measuring
compliance. In this section, we compare two approaches to quantify compliance.
The first, traditional approach calculates rates of compliance across cases (or rep-
aration measures) at a particular point in time, offering a static “snapshot” of the
situation. The second approach introduced in this chapter conceptualizes com-
pliance as an event that takes place within discrete-time units (years), and thus
allows for a dynamic analysis of the process.
To understand the difference between the two approaches, imagine a hy-
pothetical case in which the IACtHR orders a State to comply with two repa-
ration measures. Three years later, the Court issues a supervision resolution
documenting that the State complied with the first order within two years of the
decision but has yet to comply with the second order. The conventional proce-
dure estimates the rate of compliance across orders at the time of the resolution.
This “snapshot” of the situation would show that by the end of the third year, the
State has complied with 50 percent of the orders (one out of two). In contrast,
the discrete-time procedure records every year until an order meets compliance.
In the previous example, the first order met compliance after two years, thus the
annual rate of compliance is 1/2, that is, an event of compliance over a two-year
period. The second order has not yet been met with compliance by the end of the
third year, thus the annual rate for the second order is 0/3. We can easily aggre-
gate this information across reparation measures. Overall, the yearly probability
of compliance for the State is 1/5.
Why is the second approach necessary? The conceptual implications of the
two approaches become clear if we imagine that the Court issues a new supervi-
sion resolution a decade after the decision. The new resolution reminds us that
the State complied with the first order within two years but warns that the State
has not complied with the second order ten years after the ruling. A decade after
the ruling, the snapshot analysis would reiterate the initial conclusion: the rate of
compliance remains at 50 percent. In contrast, the discrete-time estimate would
penalize the State for the long delay in compliance. The annual rate of compli-
ance for the first order is still 1/2, but the annual rate for the second order is now
12 Jana von Stein, “The Engines of Compliance,” in Jeffrey Dunoff and Mark Pollack (eds.),
Interdisciplinary Perspectives on International Law and International Relations: The State of the
Art (University Press 2013), 49. Oran Young, Compliance and Public Authority: A Theory with
International Applications (Johns Hopkins Press 1979), 104.
0/10. Overall, the yearly probability of compliance for the State is now 1/12. That
is, one event of compliance, on average, every twelve years.
3. Why Time Matters
Time is a relevant dimension of the concept of compliance for two reasons. First,
as the previous hypothetical example illustrates, delays are relevant to charac-
terize legal outcomes. Even if States conform to the orders of the IACtHR, they
may display considerable divergence in how long they take to do so. Delays
with compliance ultimately matter for the victims and for the Court’s reputa-
tion. Second, time is relevant to understand the causes of compliance. Contextual
variables that influence State behavior normally fluctuate over time. In the fol-
lowing sections, we discuss the reasons for this fluctuation and explain how the
discrete-time approach allows us to improve our understanding of those issues.
3.1. Legal Outcomes
A good measure of compliance must take into account not only whether a State
complied with a ruling but also how long it took to do so. States are unlikely to
respond to Court rulings right away, and a variety of factors can impose delays.
To treat equally cases in which a State complied after fifteen years with cases in
which a State complied after fifteen months, for instance, would draw a false
equivalence between two very different patterns of State behavior.
Consider, for example, the Garrido y Baigorria v. Argentina case. In response
to the illegal detention and disappearance of Adolfo Garrido and Raúl Baigorria
in 1990, the Court ruled that Argentina needed to compensate the families of
both victims, pay the lawyers’ fees for their work on the case, identify two extra-
marital children of Raúl Baigorria—in order to pay them reparations—and in-
vestigate and sanction the authorities complicit in the disappearances. Although
these orders were issued simultaneously in 1998, Argentina’s compliance record
varied according to the reparation measure. A snapshot of this case in 2017 indi-
cated that Argentina had complied with three-quarters of the reparation meas-
ures ordered by the Court. However, Argentina took nine years to comply with
the first reparation, five years to comply with the second, and nineteen years to
comply with the third. Because of this variance, the aggregate rate of compliance
observed in 2017 (3/4) masks important information about Argentina’s overall
record and variation by type of reparation.
Conversely, time also matters for assessing noncompliance. A snapshot treats
a lack of compliance at the end of the observation period (say, by 2017) as a
negative outcome, irrespective of the time elapsed. Yet the hypothetical example
introduced at the start of this section illustrates why this metric can be mis-
leading. In Garrido y Baigorria, Argentina failed to comply with only one of four
orders, but its lack of compliance with the fourth order deserved very different
interpretations nineteen years after the ruling compared with two years after the
ruling. Delays represent an important feature of a State’s compliance record that
scholars must consider when measuring levels of compliance.
3.2. The Causes of Compliance
The second reason to incorporate a temporal element is that compliance is not

a static phenomenon. The contextual factors that influence a State’s propensity
to comply with a ruling evolve over time. For instance, changes in governments
or regimes often affect the likelihood that leaders will recognize State culpability
in past human rights abuses. Guatemala came into rapid compliance with a va-
riety of historical obligations following the election of Óscar Berger in 2004.13
A snapshot measure that encompasses this period would report a higher level of
compliance for Guatemala but fail to account for the sudden increase associated
with political change. Other contextual variables influence a State’s propensity
to comply over time. These include public opinion, the electoral calendar, eco-
nomic conditions, and the political ideology of incoming governments.14
Even if these variables remain stable for several years, we may observe tem-
poral fluctuations when we analyze the probability of compliance over time. As
we discuss in section 6, compliance follows a distinctive life cycle. Compliance is
unlikely in the wake of a ruling, becomes more likely after States have had time
to implement the required measures, and it becomes unlikely again as reluctant
States drag their feet. A good definition of compliance should allow us to docu-
ment this life cycle.
4. Four Metrics of Compliance
We can now compare four different ways of conceptualizing and measuring com-
pliance according to their capacity to address the two problems discussed previ-
ously. First, a static rate of compliance reflects the percentage of closed cases—or
the percentage of implemented reparation measures—at the time of the snap-
shot, without acknowledging changing conditions. Scholars in this tradition
13 Alvarez et al. (n. 4), 1454.

14 Parente (n. 10).
look at a set of orders within a given period and simply calculate the proportion
of reparations that were met with compliance.15
A second, less common approach reports the average number of years States
take to comply. This measure tackles the first challenge discussed previously
(delays) by reporting the average time to compliance. However, because the units
of analysis are cases or reparation measures rather than discrete-time units, this
measure cannot tackle the second problem (changing conditions over time).
Moreover, the analyst is able to measure the time to compliance only if com-
pliance has taken place by the end of the observation period. In the previous
example of Garrido y Baigorria v. Argentina, an analyst taking a snapshot of the
case by year nineteen would observe an average time to compliance of eleven
years ((9 +5 +19)/3) without accounting for the fourth, pending measure. Thus,
this approach presents the problem of selection bias, given that States are likely to
comply with lenient measures first. To overcome the limitations of the snapshot
approach, we advocate for the discrete-time approach introduced earlier. There
are two possible discrete-time measures of compliance, one expressed as a yearly
probability and a second expressed in terms of duration. Although they are
expressed in different metrics, these expressions are mathematically equivalent.
The yearly probability of compliance, illustrated in section 2, reflects the like-
lihood that a State will comply with a given reparation measure at a given point
in time. Because this third metric can vary from year to year, it is sensitive to
changes in explanatory factors. For instance, the probability of compliance may
be low in year t but increase substantially after a new government enters office
in year t +1. We show in section 6 that when we compare a large number of
reparation measures this metric allows us to reconstruct the life cycle of com-
pliance. Moreover, the yearly probability of compliance contains the necessary
information to assess duration—a low probability of compliance in a given year
suggests that the State will take long time to comply—but it is not a very intuitive
metric to assess delays. Therefore, we need an alternative metric to convey this
information.
For ease of interpretation, we propose a fourth measure: the expected time
for compliance (ETC). The ETC represents the expected number of years until
the State implements an order. We calculate the ETC in three steps. First, we
record the number of discrete-time units (years) until we observe compliance.
Returning to Garrido y Baigorria, for instance, there are nine time units for the
first reparation measure, five for the second, nineteen for the third, and nine-
teen and counting for the fourth. Second, we estimate the yearly probability of
15 González-Salzberg, “Do States Comply with the Compulsory Judgments of the Inter-American
Court of Human Rights?” (n. 7).

compliance—the third metric discussed in the previous paragraph. The average

probability of compliance per annum in Garrido y Baigorria is 3/52: three events
of compliance in 9 +5 +19 +19 time units. Third, we retrieve the ETC by taking
the inverse of that probability. If the average probability of compliance is 3/52,
the inverse of this figure provides the expected number of years (17, or 52/3)
until the State honors an order.
Because the ETC is derived from the yearly probability of compliance, the
discrete-time approach allows us to report the ETC and the estimated proba-
bility of compliance interchangeably. These two statistics are conceptually equiv-
alent: an ETC of two years reflects a compliance probability of 0.50, while an
ETC of ten years reflects a compliance probability of 0.10. We often prefer the
ETC because of its intuitive interpretation: a high ETC means that the State will
likely take many years to comply, while a low ETC indicates that a State is likely
to comply promptly.
Before discussing our findings, it is important to note some caveats for the
interpretation of our fourth metric. The ETC already accounts for the possibility
that a State will not comply with a given order. The measure penalizes cases of
noncompliance by reporting longer expected compliance horizons. Therefore,
a very long ETC should not be interpreted as a specific prediction about the
number of years until compliance but rather as an indication of unlikely com-
pliance over the long run. For instance, an ETC of one hundred years does not
imply that a State will wait a century to comply with a ruling but that noncompli-
ance is likely over the long run—the yearly probability is just 0.01. In addition,
because we normally report ETCs that summarize information for several years,
this figure may mask important information about the implementation life cycle.
Two States may have similar ETCs but vary in their propensity to comply at spe-
cific points in time following a ruling. Given this limitation, in the following sec-
tion we report numerical information about ETCs to compare States, but also
present graphical information about cycles of compliance.
5. Compliance with the IACtHR
We illustrate the four metrics discussed previously using evidence from the
IACtHR. Between 1989 and 2018, the Inter-American Court ruled against States
in 238 cases, ordering some 1,783 reparation measures. We compiled an original
data set for these cases, documenting the year of each ruling and the year of the
resolutions in which the IACtHR determined that the State had complied with
the reparation measures. Because the Court’s supervision resolutions identify
two possible levels of compliance (“partial” or “full”), we calculate measures of
compliance for two events: the first acknowledgment of any form of compliance
whether partial or full, and the acknowledgment of full compliance, that is, the
end of the supervision process for a particular order.
Table III.3.1 summarizes this information, comparing States along the two
snapshot measures of compliance. The first four columns in the table identify
the country, the number of cases in which the IACtHR ruled against the State,
the number of cases that the Court has archived due to full compliance, and the
number of reparation measures ordered in total. The following columns present
conventional measures of compliance based on a snapshot at the end of 2018. The
two columns under “Compliance (%)” compare rates of implementation across
countries, using the conventional estimate for the percentage of reparations.
The last two columns compare the average number of years elapsed between the
Court’s ruling and the moment when the Court acknowledges compliance.
The initial portrait presented in Table III.3.1 is admittedly dim, with only 33
out of 238 cases archived. This means the IACtHR has closed only 14 percent
of the cases due to full compliance, while 86 percent of the cases still burden
its supervision efforts. At the country level, it is also disappointing that no State
has closed more than half of its cases. This evidence has played into the hands
of critics who highlight the limited effectiveness of the Inter-American Human
Rights System.16
The first three columns of the table also illustrate some problems with an anal-
ysis based on overall cases, which does not disaggregate rulings into specific
orders. The column reporting the total number of cases makes it evident that
we risk placing very different situations in the same category when comparing
the rate of archived cases. For example, Uruguay, Colombia, and Venezuela had
closed no cases by the end of 2018, yet Uruguay had only two cases pending,
while Colombia and Venezuela had some twenty pending cases each. Moreover,
the compliance rate for specific orders shows that the political will in Colombia
and Venezuela has been quite different.
The remaining columns in Table III.3.1 compare levels of compliance based
on individual reparation measures. To overcome some limitations of the analysis
based on cases, legal scholars opted to break down cases into individual repara-
tion.17 The focus on individual reparations represented a considerable advance.
States such as Bolivia, Ecuador, or Panama, which appear as noncompliant in
most cases, are implementing most of the reparation measures ordered in the
context of those cases even though the cases remain open. Perhaps most impor-
tantly, the literature analyzing compliance with specific reparation measures
16 Carlos Villagrán and Fabia Veçoso, “A Human Rights Tale of Competing Narratives” [2017] 8
Revista Direito e Práxis 1603.

17 Fernando Basch et al., “The Effectiveness of the Inter-American System of Human Rights
Protection: A Quantitative Approach to its Functioning and Compliance with Its Decisions” [2011] 7
Sur 9. Bailliet (n. 3).
Table III.3.1 Conventional measures of compliance (by 2018).
Country Cases Reparations 1. Compliance (%)* 2. Average time†
Total Archived Any Full Any Full
Argentina 15 4 90 61.1 48.9 4.2 4.0

Barbados 2 0 10 50.0 30.0 3.0 3.0
Bolivia 6 2 43 74.4 67.4 2.3 2.7
Brazil 8 1 58 31.0 24.1 2.5 2.5
Chile 9 2 54 66.7 61.1 2.4 2.4
Colombia 22 0 199 40.7 32.2 3.7 4.4
Costa Rica 4 2 24 37.5 33.3 3.1 4.8
Dominican 4 0 38 7.9 7.9 3.0 3.0
Republic
Ecuador 20 9 111 73.0 64.0 2.9 3.4
El Salvador 6 0 66 53.0 39.4 3.3 3.5
Guatemala 27 1 226 41.6 36.3 2.9 3.0
Haiti 2 0 11 0.0 0.0 -- --
Honduras 13 2 93 41.9 32.3 3.2 2.4
Mexico 10 1 113 47.8 39.8 3.7 3.6
Nicaragua 5 2 31 32.3 22.6 3.5 3.1
Panama 5 1 31 71.0 64.5 2.5 2.8
Paraguay 7 1 70 42.9 35.7 4.4 5.8
Peru 43 3 302 37.7 27.5 4.5 4.2
Suriname 6 2 43 34.9 32.6 3.8 4.1
Trinidad and 2 0 14 0.0 0.0 -- --
Tobago
Uruguay 2 0 14 35.7 35.7 2.0 2.0
Venezuela 20 0 142 4.9 4.2 6.3 6.5
TOTAL 238 33 1783 41.8 34.3 3.5 3.6
* Percentage of reparation measures with any form of partial or full compliance by the end of 2018.
†Average number of years from the ruling until IACtHR reported any form of partial or full compli-
ance, if the State complied. Available only for reparations with compliance.
documented which type of remedies is more likely to be implemented. The evi-

dence consistently indicates that States are more likely to honor monetary com-
pensation measures and less likely to implement nonrepetition measures and
orders addressing the State’s obligation to prosecute perpetrators.18
The different rates of compliance across different types of reparation meas-
ures underscore the importance of treating compliance as a gradual rather than
a discrete outcome. A gradual approach to compliance is especially important
when it comes to orders that involve long-term processes and several domestic
actors, such as guarantees of nonrepetition that demand changes in legislation.
Specialists have argued for a flexible understanding of compliance, given that the
Inter-American Court has a relatively expansive and maximalist jurisprudence.19
Fortunately, the IACtHR reports partial compliance—that is, demonstrated
progress toward implementation—in its monitoring resolutions. Table III.3.1
illustrates the contrast between a strict definition of compliance, acknowledging
only full implementation (with an average rate of 34%) and a broad definition
including partial or full implementation (with an average rate of 42%). For com-
plex orders that involve, for example, investigating, judging, and sanctioning
perpetrators, specialists argue for an even more nuanced classification that goes
beyond the two categories of partial and full compliance.
5.1. Rates of Compliance
The central columns in Table III.3.1 report rates of compliance as a percentage

of reparations with any level of implementation (partial or full) or strictly in full
compliance. We consider all reparations ordered by the Court from 1989 to 2018.
The picture emerging from this analysis, based on individual reparation meas-
ures, is far more promising than the one based on individual cases. More than
40 percent of the reparations ordered since 1989 met with some degree of com-
pliance, and over a third have been fully complied with. This might be a reason-
able number for a Court credited with ordering high-bar reparation measures
and sometimes at the cutting edge of human rights jurisprudence—something
that other tribunals, like the European Court of Human Rights (ECtHR), do not
aim for. As a point of reference, the ECtHR obtained a 55 percent implementa-
tion rate for its leading cases between 2009 and 2018.20
18 Basch (n. 17), 24.

19 Jorge Contesse, “Resisting the Inter-American Human Rights System” [2019] 44 Yale Journal of
20 For the ECtHR, “leading” cases represent new legal issues, while “repetitive” cases represent
later instances of the same issue. The Committee of Ministers closes repetitive cases when States
comply with individual measures (e.g., monetary compensation), but only closes the leading cases
once States comply with general measures (e.g., measures of nonrepetition). George Stafford, “The
5.2. Average Time to Compliance
The last two columns in Table III.3.1 report the observed time to compliance
for the average reparation measure by country. The figures are somewhat sur-
prising, with just three and a half years on average between the date of the
ruling and the date when the IACtHR acknowledges compliance. However,
these estimates exclude all reparation measures without implementation and
thus present an overly optimistic picture. Countries with extremely low rates
of compliance, such as the Dominican Republic (7.9%), may also display a
prompt (three-year) execution of the few measures they actually choose to im-
plement. Only a dynamic duration analysis is able to overcome this inferential
problem.
In sum, Table III.3.1 illustrates the advantages and the limitations of snap-
shot measures of compliance. By moving from an analysis of overall cases
to an analysis of specific orders (reparation measures), conventional statis-
tics provide important insights. At the same time, however, they fail to effec-
tively account for the role of time. A specific example will help convey this
point: analyzing compliance in 2012, Cecilia Baillet noted that Mexico, which
had at that time a zero percent compliance rate at the case level, behaved partic-
ularly well with regard to orders of investigation and punishment, complying
with a remarkable 67 percent of those challenging orders.21 Thus, the anal-
ysis of specific measures provides more nuanced information than the anal-
ysis of overall cases. However, nuance gained from comparing orders does not
translate into nuance over time. The Court decided on four additional cases
involving Mexico within five years of Baillet’s study, issuing three of the four
rulings in 2018. If we had conducted a similar analysis of decisions involving
Mexico by the end of 2018, compliance rates at the reparation level would have
dropped considerably because the State did not have enough time to imple-
ment the orders within a few months.
To overcome these limitations, Table III.3.2 displays discrete-time measures
for the same cases. The central columns report the yearly probability of com-
pliance, and the last two columns report the ETC for each member State. This
ensures that countries with notable delays are brought to the forefront.
Implementation of Judgments of the European Court of Human Rights: Worse Than You Think—
Part 2: The Hole in the Roof ” (2019) EJIL: Talk!, <https://www.ejiltalk.org/the-implementat
ion-of-judgments-of-the-european-court-of-human-rights-worse-than-you-think-part-2-the-
hole-in-the-roof/> (accessed February 5, 2022).
21 Bailliet (n. 3), 480.

Table III.3.2 Discrete-time measures of compliance (at 2018).
Country Reparations Yearly probability‡ ETC (years)§
Any Full Any Full
Argentina 90 0.101 0.073 9.9 13.7

Barbados 10 0.067 0.034 15.0 29.7
Bolivia 43 0.147 0.122 6.8 8.2
Brazil 58 0.082 0.060 12.2 16.8
Chile 54 0.163 0.149 6.1 6.7
Colombia 199 0.069 0.047 14.6 21.4
Costa Rica 24 0.103 0.078 9.7 12.8
Dominican Republic 38 0.012 0.012 83.0 83.0
Ecuador 111 0.169 0.126 5.9 7.9
El Salvador 66 0.096 0.065 10.4 15.4
Guatemala 226 0.069 0.055 14.5 18.1
Haiti 11 0.000 0.000 -- --
Honduras 93 0.089 0.065 11.3 15.3
Mexico 113 0.097 0.078 10.3 12.8
Nicaragua 31 0.085 0.048 11.8 21.0
Panama 31 0.136 0.102 7.4 9.8
Paraguay 70 0.048 0.035 20.9 28.9
Peru 302 0.052 0.034 19.2 29.5
Suriname 43 0.055 0.049 18.1 20.5
Trinidad and Tobago 14 0.000 0.000 -- --
Uruguay 14 0.057 0.057 17.4 17.4
Venezuela 142 0.007 0.006 148.9 174.8
TOTAL 1783 0.069 0.052 14.5 19.4
‡ Yearly probability of a first report documenting any form of partial or full compliance.
§Expected number of years until the IACtHR reports the first form of partial or full compliance.
Undefined for countries that never complied with an order, i.e., ETC =∞.
5.3. Yearly Probability of Compliance
The States most likely to comply with pending Court orders have been Ecuador,
with an average yearly probability of partial or full compliance of 0.169, or
16.9 percent; Chile, with 16.3 percent; and Bolivia, with 14.9 percent. At the other
end of the spectrum we find Haiti and Trinidad and Tobago, with no compliance
events to date; and Venezuela, with a yearly probability of 0.007, or just 0.7 per-
cent. Trinidad and Tobago and Venezuela denounced the American Convention
in 1998 and 2012, respectively. As a result, the probability of Ecuador honoring a
Court order has been twenty-four times greater than the probability of Venezuela
doing so.
It is worth noting that the number of reparation measures pending is unre-
lated to the probability of compliance. Some States, like Haiti and Barbados, are
confronted with only a few orders, but they are unlikely to comply with them.
Countries like Ecuador and Mexico, however, confront a large number of orders
but they display annual rates of compliance well above the mean. It follows that
backlog is not the main explanation for annual rates of compliance. Causality
could in fact flow in the opposite direction, as unresponsive States may dis-
courage victims from appealing to the Inter-American System.
5.4. Expected Time for Compliance
For a more intuitive metric, the last two columns of Table III.3.2 display the ETC.
Because the ETC figures incorporate information about noncompliance, the
contrast with Table III.3.1 can be shocking. While the observed time for com-
pliance for measures honored by the Dominican Republic is three years, the ex-
pected time for compliance for the country is eighty-three years.
To place those States in perspective, Figure III.3.1 plots the expected time
until the first manifestation of partial or full compliance for all countries in Table
III.3.2. The figure allows us to distinguish between two qualitatively distinct
groups: noncompliers—the Dominican Republic, Haiti, Trinidad and Tobago,
and Venezuela—and the rest. Noncompliers have zero probability of compliance
in any given year or display unrealistic ETCs that indicate a probability effec-
tively approaching zero. The remaining States present ETCs that range continu-
ously between six and twenty-one years, as in the cases of Ecuador and Paraguay.
Such a continuum suggests that States in this second group belong in the same
category: their differences, although very significant, are a matter of degree. The
figure shows that eight countries in this group are likely to comply with their
reparation orders within a decade. These country averages, however, hide a
Venezuela 149
Dominican Republic 83
Paraguay 21
Peru 19
Suriname 18
Uruguay 17
Barbados 15
Colombia 15
Guatemala 15
Brazil 12
Nicaragua 12
Honduras 11
El Salvador 10
Mexico 10
Argentina 10
Costa Rica 10
Panama 7
Bolivia 7
Chile 6
Ecuador 6
Trinidad and Tobago
Haiti
0 20 40 60 80 100 120 140 160
Figure III.3.1. Expected time for the first form of partial or full compliance in years
considerable amount of variance across types of reparation measures and over

the life cycle of reparations, as we discuss in the following section.
Based on Table III.3.2. ETCs undefined for Trinidad and Tobago and Haiti.
6. The Compliance Life Cycle
The most important advantage of discrete-time measures is their capacity to

track levels of compliance over time. Although Table III.3.2 reports the average
probability of compliance for each State in a typical year, a State’s propensity to
comply naturally varies over the years. This variation in part reflects idiosyn-
cratic conditions, for example, government changes, but it also reflects the nature
of the implementation process. It is unlikely that States will comply with repa-
ration measures immediately after a ruling because it takes time to address the
Court’s requests.
Even if most factors driving compliance remain stable, on average we observed
temporal fluctuations when we analyzed compliance in time. Willing States will
be unlikely to comply immediately, but they will do so within a few years. After
willing States have complied within a reasonable period, only orders issued to
reluctant States will remain in the analysis. Thus, the average probability of com-
pliance should be low immediately after a decision (as willing States prepare to
comply), will increase within few years, and then drop again when only reluctant
States remain under supervision. While conventional measures of compliance
(calculated for cases or reparation measures) are unable to track changes in the
probability of implementation over time, discrete-time measures (calculated an-
nually) allow us to document the life cycle of compliance with precise accuracy.
Figure III.3.2 documents the life cycle using data from the IACtHR. The hor-
izontal axis reflects the number of years a measure has remained under supervi-
sion; the vertical axis reflects the probability of compliance by the end of the year.
The series tracks the yearly probability of compliance for two outcomes: the first
indication of compliance, whether partial or full, and indicated by the dotted
line, and full compliance, indicated by the solid line. Annual probabilities are
calculated for pending orders, that is, those without any implementation (dotted
line) or those without full compliance (solid line). Thus, while the solid line in
Year 1 reflects 69 episodes of full compliance for 1,607 pending orders, with a
probability of 0.043, or 4.3 percent, a similar rate in Year 6 reflects 32 episodes for
734 pending measures, with a probability of 4.4 percent. Only 11 orders remain
under supervision by year 20.
Although the average ETC reported in Table III.3.2 is more than fourteen
years, the figure shows that this average hides an uneven historical trajectory: the
probability of compliance increases consistently within the first three years of
a ruling, as willing States prepare to implement the required measures. By the
third year the probability of any form of compliance is about 16 percent, and the
probability of full compliance is close to 11 percent. The likelihood of compli-
ance declines in the following years, hitting a nadir by the end of the first decade.
In practice, this life cycle means that the cumulative probability of compli-
ance, whether partial or full, approximates 50 percent within the first decade.
The number of reparation measures monitored by the IACtHR therefore drops
considerably after ten years. This pattern is hard to grasp from Table III.3.2, since
the average ETC is prolonged by reluctant States and by a small percentage of
measures without implementation. Figure III.3.2 therefore suggests that there is
.2
.15
Probability of compliance
.1
.05
0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
Years from ruling
Any Full
Figure III.3.2. The compliance life cycle

more room for optimism than commonly assumed. Moreover, the data tends to
overestimate the time to compliance. Actual implementation takes place a year
or two before the Court acknowledges State behavior. Most studies, including
the one contained in this chapter, employ the date-of-supervision resolutions
as the official time to compliance, but on average State actions precede those
resolutions by at least eighteen months. Figure III.3.2 also suggests that compli-
ance with lagging reparation measures appears to improve about two decades
after a ruling. However, because very few measures remain open at this stage, this
“surge” reflects the experience of only a very few cases (Castillo Petruzzi v. Perú;
Garrido y Baigorria v. Argentina and Suárez Rosero v. Ecuador) and thus it is
uncertain.
The study of life cycles introduces a dynamic perspective to the analysis. It
provides a more encouraging outlook than the static comparison of compliance
rates (as in Table III.3.1) or the comparison of ETCs across States (as in Table
III.3.2). It also allows scholars and practitioners to identify the best window of
opportunity to elicit State compliance. Given the large number of cases decided
by the Court in recent years, it is hard to anticipate whether the observed life
cycle will remain stable in the future.
This chapter has shown that a dynamic analysis of compliance is able to sustain
more reliable (and perhaps more optimistic) conclusions regarding how the
Inter-American Human Rights System influences outcomes in Latin America.
However, the longitudinal perspective also calls for a long-term distinction
between compliance and impact. Compliance narrowly defines whether State
actions align with the orders of the Inter-American System, while impact refers
to the broader legal and social consequences of those orders.
An extensive literature has acknowledged that legal decisions have
implications that transcend State behavior. For instance, Yuval Shany (2014)
develops the idea of international court effectiveness to analyze whether tribunals
are able to “attain, within a predefined amount of time, the goals set for them by
their relevant constituencies.”22 Karen J. Alter, Laurence R. Helfer, and Mikael
Rask Madsen (2018) conceptualize international court authority to understand
“how the audiences that interact with international courts embrace or reject in-
ternational court rulings.”23 We build on those distinctions to emphasize that
22Yuval Shany, Assessing the Effectiveness of International Courts (Oxford University Press 2014).
23Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen (eds.), International Court Authority
over the long run compliance and transformative impacts may not coincide
when it comes to expected outcomes. In the ideal-typical cases, State compli-
ance leads to positive impacts, and a lack of compliance leads to negative human
rights outcomes. However, observers can also identify “misaligned” instances in
which a lack of compliance is followed by unexpected positive transformations
or, by contrast, situations in which compliance triggers a backlash against the
courts. We therefore close our discussion by identifying four potential patterns
that link compliance and impact: direct transformative impact, indirect trans-
formative impact, resistance, and compliance backlash.
7.1. Direct Transformative Impact
Compliance with human rights rulings often creates lasting consequences for so-
ciety. In the domestic realm, iconic rulings, such as Brown v. Board of Education
(1954) in the United States, have contributed to profound social transformations,
even though compliance was achieved after considerable resistance. In the Inter-
American System moreover, some decisions have transformative impacts be-
yond the original case and country. For example, when the Argentine Supreme
Court nullified the 1987 amnesty law in 2005, it relied on the Barrios Altos case,
an IACtHR decision referring to Peru (2001). This pattern of recursive inter-
action between domestic law and the Inter-American System led Armin von
Bogdandy et al. to conceptualize “an original Latin American path of transform-
ative constitutionalism,” described as the emergence of an Ius Constitutionale
Commune in Latin America.24 This development “builds, far more than on neo-
constitutionalism, on the Inter-American system of human rights, whose influ-
ence in the region the authors of the 1990s could not foresee.”25
7.2. Indirect Transformative Impact
This type of pattern refers to surprising instances in which court rulings induce
positive outcomes despite the lack of direct compliance. For example, although
the two central measures ordered by the IACtHR in the 2006 Almonacid Arellano
y otros v. Chile case—involving the State’s obligation to investigate and sanction
human rights violations—remain without compliance to this day, the Criminal
Chamber of Chile’s Supreme Court cited the decision within a few months in
24 Armin von Bogdandy et al., “Ius Constitutionale Commune en América Latina: A Regional
Approach To Transformative Constitutionalism” (2016) MPIL Research Paper Series No. 2016-21.
25 Bogdandy et al. (n. 24), 21.
the Hugo Vásquez Martínez and Mario Superby Jeldres case to assert that crimes
against humanity are not subject to statutes of limitations. This was not the first
time that Chilean courts built on international law, but while “before Almonacid
international law was mostly mobilized by parts of the Chilean judiciary as an
interpretative tool, following the IACtHR ruling, international legal norms have
also been deployed as distinctive legal criteria.”26
7.3. Resistance
The evidence presented in previous sections shows that States too often resist
the implementation of reparation measures. In some cases, however, passive re-
sistance escalates into active defiance. Wayne Sandholtz et al. note that “non-
compliance with, and even criticism of, the decisions of international human
rights courts are normal forms of resistance to adverse rulings. But sometimes
States strike at international human rights courts with more far-reaching forms
of resistance.”27 States may cease to cooperate with the court, narrow the court’s
jurisdiction, limit access (standing) to the court, withdraw from the court’s
jurisdiction, and even—as in the case of the Southern Africa Development
Community Tribunal—collectively terminate the court.
As mentioned before, Trinidad and Tobago (1998) and Venezuela (2012)
have denounced the American Convention of Human Rights and withdrawn
from the IACtHR’s jurisdiction. The Dominican Republic has not taken this
step, but its Constitutional Tribunal ruled in 2014 that the IACtHR’s decisions
are nonbinding. Sandholtz et al. discuss these cases as instances of backlash.
However, we want to emphasize that those reactions were part of a deliberate
strategy to avoid compliance. These preemptive forms of backlash are analyti-
cally distinct from the backlash triggered by compliance efforts discussed in the
next section.
7.4. Compliance Backlash
We employ this term to refer to episodes in which actual or anticipated com-

pliance with controversial rulings triggers unexpected negative consequences.
26 Marcelo Torelly, “From Compliance to Engagement: Assessing the Impact of the Inter-American
Court of Human Rights on Constitutional Law in Latin America,” in Par Engstrom (ed.), The Inter-
American Human Rights System: Impact Beyond Compliance (Palgrave Macmillan 2019), 124.
27 Wayne Sandholtz, Yining Bei, and Kayla Caldwell, “Backlash and International Human Rights
Courts,” in Alison Brysk and Michael Stohl (eds.), Contracting Human Rights: Crisis, Accountability,
and Opportunity (Edward Elgar 2018), 159.
For instance, in late 2017 the IACtHR asserted equal rights for same-sex couples
in a consultative opinion (24/17) requested by Costa Rica. The Constitutional
Chamber of the Costa Rican Supreme Court acknowledged the opinion and
ultimately ruled against the Family Code in August 2018. However, the Inter-
American Court’s position triggered a political storm in the context of the 2018
presidential election campaign. A conservative public backlash against the deci-
sion bolstered mass support for presidential candidate Fabricio Alvarado, who
railed against the Court and won the first round of the presidential election,
though he was defeated in the runoff.
The Costa Rican experience illustrates a critical fact: compliance backlash
is led by political entrepreneurs who exploit social reactions against unpop-
ular rulings. We distinguish this pattern from instances of preemptive backlash
discussed previously, in which State agents undermine human rights tribunals as
part of a deliberate strategy to avoid compliance. Although the boundaries be-
tween the two categories are sometimes ambiguous, the distinction can help us
differentiate between qualitatively different situations. For example, in the con-
text of the European Court of Human Rights, the 2014 Yukos case resembles an
example of preemptive backlash by Russia, while the 2005 Hirst case resembles
an example of compliance backlash from the United Kingdom. Nevertheless,
the distinction can be fluid: compliance backlash easily turns into a preemptive
strategy when political actors leading the charge against human rights tribunals
gain control of the national government or domestic courts. The complex re-
lationship between compliance and transformative impacts underscores the
importance of adopting a diachronic perspective when assessing State compli-
ance with the orders of the Inter-American System. The discrete-time approach
introduced in this chapter offers an effective strategy to address some of the
major conceptual challenges created by such a diachronic perspective. Further
development of this approach will therefore be crucial to advance consistent
standards within the region’s multilevel legal system.
III.4
Transformative Impact of the
A Methodology to Think beyond Compliance
By Viviana Krsticevic and René Urueña
1. Introduction
The Inter-American Human Rights System (Inter-American System, or IAHRS)

has made great contributions to the protection of the rights of victims, the de-
velopment of legal standards, and the strengthening of democracies in Latin
America. However, the low levels of compliance reported by the Inter-American
Court of Human Rights (Inter-American Court, or IACtHR) and by some
commentators could lead to the erroneous conclusion that the Inter-American
System is of marginal importance in efforts to hold States accountable for human
rights violations.1
The experience of most of the Inter-American Court’s stakeholders suggests
otherwise. The understanding that victims, litigants, and States have of its work
seems to contradict the most critical assessments of the levels of compliance
with IACtHR decisions and their impact on access to justice. From the perspec-
tive of these stakeholders, and also of the Inter-American Court itself, IACtHR
judgments play a key role in ensuring State accountability.
This contradiction arises from the limits of compliance as an analytical cat-
egory for assessing impact. This chapter extends the scope of analysis, arguing
that compliance with international norms can be promoted through an institu-
tional design and practice that considers their wider impact.2 Ultimately, this
chapter argues, there is a feedback loop between the wider impact of an inter-
national institution’s order and compliance with that order. Compliance with in-
ternational decisions is facilitated by the wider impact of such decisions, which
1 See Armin von Bogdandy and René Urueña in this volume.

2 Complementing this reading, see Armin von Bogdandy and René Urueña; and Stephania Yate
Cortes and René Urueña, in this volume.
Viviana Krsticevic and René Urueña, Transformative Impact of the Inter-American Human Rights System In: The
Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer
Mac-Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Viviana Krsticevic and René Urueña 2024.
DOI: 10.1093/oso/9780197744161.003.0030
A Methodology to Think beyond Compliance 585
feeds into compliance processes. The Inter-American Court’s jurisprudence on

crimes against humanity illustrates this connection.
Most of the quantitative literature concerning compliance with IACtHR orders
ignores this broader impact. Moreover, the scholarly work that does consider the
Inter-American Court’s wider impact nevertheless overlooks the connection be-
tween impact and compliance, instead framing them as two distinct categories.
This chapter fills that gap in the literature, by proposing criteria to consider when
assessing the impact of the Inter-American Court and by discussing how the
IACtHR’s wider impact affects compliance.
The second section of this chapter provides a more thorough review of the
literature on compliance and the impact of the Inter-American Court and
identifies its limitations. Next, the third section describes the institutional land-
scape for monitoring compliance at the Inter-American Court of Human Rights
and emphasizes the dynamic nature of this process. Finally, the fourth section
proposes that the following criteria be considered when assessing impact: (a)
time; (b) quality of compliance; and (c) institutional impact.
2. Literature Review: Compliance with the Inter-American

Court’s Orders
The last decade has witnessed growth in the study of compliance with the Inter-
American System’s orders, and most commentators seem to agree that the
IAHRS’s work is characterized by extremely low levels of compliance. Both the
Inter-American Court and recent scholarly work, however, have argued that
these low levels of compliance do not necessarily mean that States are indifferent
to the IAHRS, or that its work has no impact.3 Nevertheless, most studies show
a disappointing record of compliance with the Inter-American System’s orders,
especially when these orders are disaggregated by type and by the body adopting
the order, either the Inter-American Court or the Inter-American Commission
on Human Rights (Inter-American Commission, or IACHR).
One recent line of scholarship has measured the level of compliance quanti-
tatively, finding that, while orders that have to do with economic compensation
are often complied with, other orders that imply more politically costly action
by the State seem to be less heeded. For example, Fernando Basch, Leonardo
Filippini, Ana Laya, Mariano Nino, Felicitas Rossi, and Bárbara Schneider
disaggregated by type of orders and found that those requiring economic and
3 Annual Report of the Inter- American Court of Human Rights, 12; Damian A. Gonzalez-
Salzberg, “Do States Comply with the Compulsory Judgments of the Inter-American Court of
Human Rights? An Empirical Study of the Compliance with 330 Measures of Reparation” [2014] 13
Revista do Instituto Brasileiro de Direitos Humanos.
586 Viviana Krsticevic and René Urueña
symbolic reparation have a higher level of compliance (total compliance of 47%

and partial compliance of 13%), as opposed to orders requiring the investigation
and punishment of perpetrators of human rights violations (total compliance of
10% and partial compliance of 13%).4
Following different classifications, Damian A. Gonzalez-Salzberg’s study of
orders issued by the Inter-American Court prior to 2011 similarly found that
States are more likely to comply with orders requiring them to implement eco-
nomic and symbolic measures, than with orders requiring the investigation and
punishment of those responsible for the violation of rights: orders requiring pay-
ment of compensation, publication of the decision, and apologies to victims had
a higher level of compliance (65% for compensation, 75% for publication, and
80% for apologies), whereas orders requiring the State to investigate or punish
those responsible and to modify domestic law had lower levels of compliance
(69% and 51%, respectively).5
These quantitative studies, though significant, have three crucial limitations.6
The first concerns the notion of “partial compliance.” Both quantitative and
qualitative studies of compliance with inter-American orders adopt the three
categories used by the Inter-American System: “compliance,” “partial compli-
ance,” and “non-compliance,” of which partial compliance encompasses, by far,
the highest number of cases.7 The category of partial compliance is too blunt, and
studies that accept this category without further nuance fail to account for the
differences among the many, varied actions that the IAHRS designates as “partial
compliance.”
Second, many quantitative studies of compliance arrive at counterintuitive
conclusions regarding the relevance of the Inter-American System for the pro-
tection of human rights. These studies conclude that the Inter-American Court
is ineffective, especially in ensuring accountability, based on low rates of com-
pliance.8 This conclusion ignores the reality that many orders with which States
4 Fernando Basch et al., “The Effectiveness of the Inter- American System of Human Rights
Protection: A Quantitative Approach to Its Functioning and Compliance with Its Decisions” [2010]
12 SUR—International Journal on Human Rights 9.
5 Gonzalez- Salzberg (n. 3). For results in the same line, see Eduardo Bertoni, “El Sistema
Interamericano de Derechos Humanos-SIDH-y La (Real?) Falta de Apoyo Regional” (2017) 20
Iuris Dictio. Eduardo Bertoni, “El Sistema Interamericano de Derechos Humanos—SIDH—y la
(¿real?) falta de apoyo regional” [2017] 20 Iuris Dictio; Darren Hawkins and Wade Jacoby, “Partial
Compliance: A Comparison of the European and Inter-American Courts of Human Rights’ [2010]
6 Journal of International Law and International Relations 35; Alexandra Huneeus, “Courts Resisting
Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights” [2011]
44 Cornell International Law Journal 493; Open Society Foundations, From Judgment to Justice.
Implementing International and Regional Human Rights Decisions (Open Society Foundations 2010).
6 For a complementing critique of that body of literature, see Armin von Bogdandy and René
Urueña; Stephania Yate Cortes and René Urueña, in this volume.

7 See Hawkins and Jacoby (n. 5), 35.
8 Bertoni (n. 5).
do not fully comply nevertheless generate significant societal change, including

in the area of accountability. When the Inter-American Court classifies an order
as partially fulfilled, it not only reveals but can also increase the effectiveness of
the international system by acknowledging a State’s progress, while at the same
time enabling the IACtHR to continue to monitor and guide the State’s efforts
to achieve full compliance.9 The Inter-American Court’s extended period of at-
tention to States’ actions significantly increases the impact of IACtHR decisions
on accountability processes at the domestic level, which are themselves often
lengthy, as well as in other areas that are discussed later in this chapter’s analysis
of the case of Barrios Altos v. Peru.
Third, these studies’ use of the IAHRS’s categories not only oversimplifies in-
stitutional and social processes that respond to inter-American decisions but
also presents a static analysis of those processes. Partial compliance, for example,
can range from the opening of an investigation to a final ruling that has not yet
been enforced. The broad spectrum of State actions that would fall into the cate-
gory of partial compliance demonstrates the need to develop more dynamic and
flexible categories that would better capture the effects of the System and how
they vary in character and over time.
Clara Sandoval, Philip Leach, and Rachel Murray demonstrated this chal-
lenge in their study of the level of implementation of international obligations in
nine countries.10 According to them, “supranational bodies are doing more than
monitoring the implementation of orders and recommendations despite a scar-
city of resources.”11 Nevertheless, they note “an unused potential in the mandates
of these supranational bodies as well as in their ability to bring other actors on
board that cajole better implementation of reparation measures.” They especially
focus on how these bodies can open spaces for constructive dialogue, including
the IAHRS’s ability to organize hearings with States and victim’s representatives.
Qualitative studies have emerged in response to this line of scholarship,
seeking to understand the impact and the role of the Inter-American System in
the protection of human rights in Latin America through changes in narratives,
truth-telling, social behaviors, and more.12 Alexandra Huneeus, for example, in
9 This dynamic monitoring process is explored as an instance of “transformative constitution-
alism beyond compliance” in Armin von Bogdandy and René Urueña, in this volume.
10 The Human Rights Law Implementation Project, HRLIP, seeks to analyze the levels of compli-
ance and implementation of nine countries in Arica, Europe, and America, regarding regional and
international tribunals, https://www.bristol.ac.uk/law/hrlip (accessed November 9, 2021).
11 Clara Sandoval, Philip Leach, and Rachel Murray, “Monitoring, Cajoling and Promoting
Dialogue: What Role for Supranational Human Rights Bodies in the Implementation of Individual
Decisions?” [2020] 12 Journal of Human Rights Practice 71–100.
12 See, e.g., Stephania Yate Cortes and René Urueña, in this volume. Par Engstrom, The Inter-
American Human Rights System: Impact Beyond Compliance (Springer 2018). For a similar
perspective on IAHRS compliance that focuses on Colombia and combines quantitative and qual-
itative methods, see Sergio Anzola, Beatriz Eugenia Sánchez, and René Urueña, “Después Del
Fallo: El Cumplimiento de Las Decisiones Del Sistema Interamericano de Derechos Humanos. Una
a study about the role of domestic institutions in the fulfillment of court orders,
found that noncompliance is largely due to the inaction of domestic judges and
prosecutors and a lack of coordination between State institutions. According to
Huneeus, the higher the level of coordination between State institutions that is
required, the lower the level of compliance with court orders will be.13 Similarly,
Courtney Hillebrecht recognized that there may be higher levels of compliance
when the executive power of a government establishes coalitions with judges and
legislators, although Hillebrecht considers the political will of the government to
be the primary factor affecting compliance.14 Cecilia Bailliet, on the other hand,
analyzed States’ degrees of compliance with eighteen IACtHR judgments and
found that lack of judicial independence from military and security institutions
has the effect of reducing compliance with orders to investigate those responsible
for human rights violations.15
Scholars have also analyzed how various characteristics of domestic legal
systems, and especially their differing approaches to the relationship between
domestic and international law, affect State compliance with international
court decisions. Huneeus, for example, has demonstrated that compliance with
IACtHR decisions depends on the existence of a domestic legal community that
envisions constitutional law as incorporating human rights standards, which
forms alliances with relevant actors within the executive and legislative branches
of the government.16
The Inter-American Court itself has observed that compliance with (and,
relatedly, the effectiveness of) its decisions is linked to the integration of in-
ternational law into domestic systems,17 as illustrated by the “constitutional
block” in Colombia as well as developments in constitutional law developments
in Argentina and Peru.18 Meanwhile, Jonathan Doak has proposed that the
Propuesta de Metodología,” Manual de Derechos Humanos y Políticas Públicas (Universidad Pompeu

Fabra 2012).
13 Huneeus (n. 5), at 493.

14 Courtney Hillebrecht, “The Domestic Mechanisms of Compliance with International Human
Rights Law: Case Studies from the Inter-American Human Rights System” [2012] 34 Human Rights
Quarterly 959–985.
15 Cecilia M. Bailliet, “Measuring Compliance with the Inter– American Court of Human
Rights: The Ongoing Challenge of Judicial Independence in Latin America” [2013] 31 Nordic Journal
of Human Rights 477–495.
16 Alexandra Huneeus, “Constitutional Lawyers and the Inter– American Court’s Varies
Authority” [2016] 79 Law & Contemporary Problems 179.
17 García Prieto et al. v. El Salvador [2007] IACtHR, Ser. C No. 168, Voto concurrente del Juez
García Ramírez, para. 11. See also Helio Bicudo, “Cumplimiento de las sentencias de La Corte
Interamericana de Derechos Humanos y de las recomendaciones de La Comisión Interamericana
de Derechos Humanos,” in Antônio Augusto Cançado Trindade (ed.), El Sistema Interamericano de
Protección de Los Derechos Humanos en el umbral del siglo XXI (Corte Interamericana de Derechos
Humanos 2003), 229–234.
18 See Jorge Ernesto Roa Roa, Las antinomias entre las constituciones y La Convención Americana
Sobre Derechos Humanos: El gran dilema del juez constitucional y convencional interamericano
participation of civil society and victims in domestic criminal processes is a key

factor in ensuring accountability for human rights violations.19 Marcelo Torelly,
on the other hand, has argued that compliance with IACtHR decisions depends
less on the constitutional status of international law than it does on the legal cul-
ture of domestic judges.20 And Sergio Anzola, Beatriz Eugenia Sánchez, and one
of the authors of this chapter likewise demonstrated that, in the case of Colombia,
compliance was not related to either the binding nature of IACtHR decisions in
the Colombian judicial system or to the existence of a mechanism for compli-
ance with reparation orders in such decisions. Instead, they found a positive cor-
relation between compliance and the participation of victims in the reparations
process, the direction of orders to the national government (as opposed to re-
gional entities), and the type of nongovernmental organization (NGO) respon-
sible for the litigation.21
Other qualitative work has studied the indirect impacts that IACtHR
decisions have had on the protection of human rights. One of the most discussed
topics has been the advancement of human rights through multilevel dialogue
between domestic and international courts, which leads to domestic courts’ reli-
ance on inter-American standards and application of conventionality control,22
a doctrine that requires domestic judges to apply the American Convention
on Human Rights (American Convention, or ACHR) directly when exercising
their domestic jurisdiction.23 Tania Giovanna Vivas Barrera, and Jaime Alfonso
Cubides Cárdenas, for example, have argued that conventionality control might
(Universidad Externado de Colombia 2015), 139–148; María Angélica Prada, “La integración del de-
recho internacional en el sistema colombiano,” in George Rodrigo Bandeira Galindo, René Urueña,
and Aida Torres Pérez (eds.), Protección multinivel de derechos humanos (Der Derechos Humanos
and Educación Superior 2013).
19 Jonathan Doak, “Victims’ Rights in Criminal Trials: Prospects for Participation” [2005] 32
Journal of Law and Society 294–316.

20 Marcelo Torelly, “From Compliance to Engagement: Assessing the Impact of the Inter-
American Court of Human Rights on Constitutional Law in Latin America,” in Par Engstrom (ed.),
The Inter-American Human Rights System: Impact Beyond Compliance (Springer International
Publishing 2019), 115–141
21 Anzola, Sánchez, and Urueña (n. 12).
22 See Víctor Bazán, “Corte Interamericana de Derechos Humanos y Cortes Supremas o
Tribunales Constitucionales Latinoamericanos: el control de convencionalidad y la necesidad de un

diálogo interjurisdiccional crítico” [2010] 16 Revista Europea de Derechos Fundamentales/European
Journal of Fundamental Rights 15; Marcelo Neves, “Del Diálogo Entre Las Cortes Supremas y La
Corte Interamericana de Derechos Humanos al Transconstitucionalismo En América Latina,” in
George Rodrigo Bandeira Galindo, René Urueña, and Aida Torres Pérez (eds.), Protección Multinivel
de Derechos Humanos. Manual (Derechos Humanos y Educación Superior 2013). Eduardo Ferrer
Mac-Gregor, “El Control de Convencionalidad Como Un Vehículo Para El Diálogo Judicial Entre
La Corte Interamericana de Derechos Humanos y Los Tribunales de América” [2016] Anuario de
Derecho Constitucional Latinoamericano 337.
23 See Bazán (n. 22); Neves (n. 22); Mac-Gregor (n. 22).
encourage compliance with the Inter-American Court’s decisions.24 This line

of scholarship also shows that judicial dialogue extends beyond the region to
impact other legal systems, such as the European Human Rights System.25 In
this context, dialogue consists of an exchange of ideas and results in shared
standards that provide a sense of common purpose that buttresses compliance26
and enhances the prestige of the Inter-American Court, both regionally and
globally.27
As can be gleaned from this overview, existing literature demonstrates the
limit of focusing solely on compliance. A bridge is needed between the study
of compliance and the study of the wider impact of the Inter-American System,
which introduces more nuance into analyses of compliance and theorizes the
confluence of compliance and wider impact.28 Ultimately, work needs to be done
to analyze the causal relations among institutional design, compliance, and im-
pact beyond compliance.29
3. Dynamic Monitoring of Compliance
Crucial to rethinking compliance in the IAHRS is understanding the complex,

iterative system the Inter-American Court uses to monitor its judgments.30 The
IACtHR has developed rich jurisprudence on reparations,31 interpreting ACHR
24 Tania Giovanna Vivas Barrera and Jaime Alfonso Cubides Cárdenas, “Diálogo judi-
cial transnacional en la implementación de las sentencias de la Corte Interamericana” [2012] 8

Entramado 184–204.
25 Laurence Burgorgue- Larsen and Nicolás Montoya Céspedes, “El Diálogo Judicial Entre La
Corte Interamericana de Derechos Humanos y La Corte Europea de Derechos Humanos,” in George
Rodrigo Bandeira Galindo, René Urueña, and Aida Torres Pérez (eds.), Protección Multinivel de
Derechos Humanos. Manual (Derechos Humanos y Educación Superior 2013).
26 René Urueña, “¿Protección Multinivel de Los Derechos Humanos En América Latina?
Oportunidades, Desafíos y Riesgos,” in George Rodrigo Bandeira Galindo, René Urueña, and Aida
Torres Pérez (eds.), Protección Multinivel de Derechos Humanos. Manual (Derechos Humanos y
Educación Superior 2013).
27 Burgorgue-Larsen and Montoya Céspedes (n. 25).
28 See generally Oscar Parra, “The Impact of Inter- American Judgments by Institutional
Empowerment,” in Armin von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin
America: The Emergence of a New Ius Commune (Oxford University Press 2017), 357–376. See also
Par Engstrom, “Introduction: Rethinking the Impact of the Inter-American Human Rights System,”
in Par Engstrom (ed.), The Inter-American Human Rights System: Impact Beyond Compliance
(Palgrave Macmillan 2019), 1–22.
29 Engstrom (n. 12).
30 The following description of the monitoring process draws in part from Rene Urueña,
“Compliance as Transformation: The Inter-American System of Human Rights and Its Impact(s),”
in Research Handbook on Compliance in International Human Rights Law (Edward Elgar
Publishing 2021).
31 Dinah Shelton, “Reparations in the Inter-American System,” in David J. Harris and Stephen
Livingstone (eds.), The Inter-American System of Human Rights (Oxford University Press 1998); Sergio
García Ramírez, “Las Reparaciones En El Sistema Interamericano de Protección de Los Derechos
Humanos” [2008] Ciudad de México: UNAM. Viviana Krsticevic, “Diálogo para la consecución de
justicia,” in Armin von Bogdandy et al. (eds.), Cumplimiento e impacto de las sentencias de la Corte
Article 63.1 as granting it broad authority to order the measures necessary for a
State to implement to provide redress to victims of human rights violations.32
These reparations include monetary compensation, measures of satisfaction,
and guarantees of nonrepetition.33 For example, the Inter-American Court
might order the investigation, prosecution, and punishment of those responsible
for gross human rights violations and crimes against humanity; the training of
public officials; the passage or reform of legislation; acts of recognition of respon-
sibility; medical treatment; or education grants.34 The wide range of reparations
necessitates the cooperation of many different State actors for a judgment to be
fully implemented. The IACtHR’s detailed ordering of individual and general
measures of reparation stand in stark contrast to the more restrained, declara-
tive, and delegation practice of its European counterpart.35
The IACtHR’s judgments set a timeline for compliance with different meas-
ures, which can range from one year to an undetermined period, or what might
be considered a “reasonable time.” The timeline for orders to investigate and
punish those responsible for human rights violations is generally undetermined.
The Inter-American Court takes primary responsibility for monitoring com-
pliance with its orders,36 although compliance may also be reported to the General
Assembly of the Organization of American States under ACHR Article 65 (which
points to another difference between the Inter-American and European sys-
tems). Pursuant to IACtHR’s rules of procedure, compliance with the judgments
and other decisions of the Inter-American Court is monitored through a State’s
submission of reports, complemented by the victims’ observations responding
to those reports. The Inter-American Commission comments on both the
State’s reports and the victims’ observations. The Court has also requested in-
formation from specific State institutions (e.g., the Prosecutor’s Office and the
Ombudsman’s Office) during this phase, which sometimes prompts previously
Interamericana y el Tribunal Europeo de Derechos Humanos. Transformando realidades (UNAM

2019); Articles 67 and 68 ACHR provide that the Inter-American Court’s judgments are final and
binding.
32 Shelton (n. 31).

33 Gonzalez-Salzberg (n. 3), 5.
34 Based on Article 63 ACHR, ICJ, and other provisions, the Inter-American Court has issued
measures of cessation, compensation, nonrepetition, satisfaction, and rehabilitation.

35 Hawkins and Jacoby call the European Human Rights System a system of “delegated com-
pliance.” We would call it, less optimistically, a system of optional compliance, since States decide
what measures would suffice with minimal guidelines or input from victims, the European Court of
Human Rights, or the Committee of Ministers of the Council of Europe.
36 Baena Ricardo et al. v. Panama [2003] IACtHR, No. Ser. C No. 104, para. 72 (“[J]‌urisdiction
includes the authority to administer justice; it is not restricted to stating the law, but also encompasses
monitoring compliance with what has been decided. It is therefore necessary to establish and imple-
ment mechanisms or procedures for monitoring compliance with the judicial decisions, an activity
that is inherent in the jurisdictional function. [ . . . ] To maintain otherwise, would mean affirming
that the judgments delivered by the Court are merely declaratory and not effective.”).
uninvolved actors to engage in the implementation of the orders. In 2008, for

example, the IACtHR asked the Attorney General of Guatemala to produce a
report on obstacles to the prosecution of human rights cases. Once the IACtHR
has gathered all the information it requires, it proceeds to determine the level
of compliance with its decisions and issue the relevant orders. The process of
monitoring compliance thus primarily consists of soliciting written reports from
the IACHR, the State, and the victims, a method which is, again, distinct from
that of the European Human Rights System.
The Inter-American Court may not only rely on all these sources of infor-
mation, but it may also convene a hearing with the State and the victims’ rep-
resentatives to monitor compliance. For some of these hearings, the Court has
requested the presence of specific State institutions. These hearings are most
often private but can be, in exceptional situations, public. Additionally, in 2015,
the Inter-American Court began holding some of these hearings in the terri-
tory of the relevant States. On-site hearings have taken place in Panama (2015),
Honduras (2015), Mexico (2016), Guatemala (2017), Panama (2017), Paraguay
(2017), and Colombia (2019), among others. In 2020, the IACtHR convened a
virtual hearing concerning provisional measures that were related to its work
monitoring compliance with its decision in a case against Panama.37 In excep-
tional circumstances, the IACtHR can also conduct an on-site visit to obtain
firsthand information about compliance, as it did in the case of the Massacres of
El Mozote and surrounding areas v. El Salvador, with the consent of the relevant
State.38
As part of the monitoring process, the Inter-American Court issues additional
resolutions in which it states which orders have reached full or partial compli-
ance and which are pending compliance. The IACtHR also provides guidance
to the State that will enable the latter to progress toward compliance with more
complex measures of reparation, such as the investigation, prosecution, and
punishment of individuals responsible for human rights violations. For ex-
ample, a compliance resolution might determine that amnesties cannot be ap-
plied to crimes against humanity and should be considered void. Most of the
cases the Court decided after 2001 were the subject of at least one monitoring
decision within two years of the adoption of the original decision, as well as sev-
eral decisions evaluating compliance and reorienting State action.39 The vast ma-
jority of IACtHR cases are in the phase of compliance monitoring.
37 This occurred due to COVID- 19 travel restrictions. Vélez Loor v. Panama [2020] IACtHR,
Provisional measures.
38 IACHR, “Informe Anual 2018.”
39 IACtHR, “ABC de la Corte Interamericana de Derechos Humanos: El qué, cómo, cuándo, dónde
y porqué de la Corte Interamericana” (San José, C.R./Corte IDH) 2018, at 10–11.

The Inter-American Court has also developed a strategy for jointly monitoring
groups of similar cases. This method was first suggested by victims’ representa-
tives who had litigated cases against Colombia, all of which resulted in orders
directing the State to fulfill the right to mental and physical health. Since then,
the IACtHR has used this strategy of joint hearings and resolutions in several
countries and on different issues to address structural obstacles to compliance.40
For example, the Inter-American Court has jointly monitored cases that include
orders concerning policies, laws, and practices that are critical for the investi-
gation of gross human rights violations in Guatemala, Mexico, Peru, Colombia,
and Honduras, among other countries.41
Moreover, compliance with the Court’s orders changes over time. This cru-
cial insight is missing from most research on compliance with inter-American
decisions. Instead of viewing the IACtHR’s orders as static in time, the IACtHR’s
stakeholders should take into account the changes that the Inter-American
System introduces into its orders to make it easier to achieve compliance and,
consequently, to have an impact.
The IACtHR is often aware of context and tailors its monitoring decision to
make them more effective in often rapidly changing environments, with effects
on the strategies of State and civil society actors. This is not to say that the Inter-
American Court changes the substance of States’ legal obligations established in
the merits’ judgment. Instead, as part of the dynamic process of monitoring com-
pliance, the Inter-American Court’s orders suggest various means through which
a State can comply with its obligations, as laid out in the original judgment. Note
that this process is distinct from the European Human Rights System’s margin of
appreciation doctrine, which the Inter-American System does not use to inter-
pret the content of rights or obligations under inter-American law.42
In this monitoring process, relevant actors also change over time. Scholars of
constructivist international relations have explored the idea that interactions be-
tween actors transform structures, which in turn triggers transformations in the
interests and strategies of the actors.43 The interests of the actors thus are not
static but evolve through the interaction at the same time as they contribute to
the transformation of other actors’ behaviors, practices, and norms. These actors
40 IACtHR, Informe Anual 2018, 69.

41 IACtHR, Informe Anual 2018, 72–73.
42 See Claudio Nash Rojas, “La doctrina del margen de apreciación y su nula recepción en la
jurisprudencia de la Corte Interamericana de Derechos Humanos” [2018] 11 ACDI—Anuario

Colombiano de Derecho Internacional.
43 See Alexander Wendt, “The Agent- Structure Problem in International Relations” [1987] 41
International Organization 335; Emanuel Adler, Communitarian International Relations (Routledge
2005), 5–6. This section draws on René Urueña, “Interaction as a Site of Postnational Rule-
Making: A Case Study of the Interamerican System of Human Rights,” in Elaine Fahey (ed.), The
Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law
(Routledge 2015), 133–159.
are not machines that merely collide or coexist, confront or coerce. Continual
interactions transform the actors as well as the terms of engagement and the
process.
This approach has the potential to improve analyses of the IACtHR’s impact
by exploring the Court’s direct and indirect interactions with key domestic ac-
tors, including victims, civil society, governments, and perpetrators.44 To assess
both positive impacts and the negative resistance, it is critical to understand
how compliance could be affected over time by the development of legal cul-
ture, the degree to which justice operators are open to implementing interna-
tional standards, the involvement of civil society,45 the obstacles imposed by
governmental officials, policies, or interest groups, and more. This is important
because one impact of the decisions of the Inter-American System is support for
domestic institutions that aim to protect human rights,46 which can lead to the
consolidation and strengthening of civil society actors such as NGOs and social
movements.47
This view of compliance contrasts with most quantitative studies’ “realist”
approach to compliance. The realist view considers international human rights
institutions to have no ability to “pull” a State toward compliance; State compli-
ance depends on the interests of the State, making human rights norms epiphe-
nomenal.48 According to this approach, compliance with a judicial decision is
achieved by activating certain sociopolitical mechanisms (e.g., suing in a court of
law) to “force” the addressee of the decision to do something (e.g., pay damages).
Since international law, especially international human rights law lacks this kind
of enforcement mechanism, the realist view considers compliance to be almost
purely at the discretion of States.
Xinyuan Dai, on the other hand, observed that international institutions
can influence States’ compliance with international agreements through their
interactions with domestic actors, including victims. According to Dai, States
purposefully design monitoring arrangements for international institutions so
that victims of human rights violations can help to monitor compliance. Most
importantly, Dai observes that compliance is more a function of competing
44 Engstrom (n. 12), 5.

45 Par Engstrom and Peter Low, “Mobilising the Inter-American Human Rights System: Regional
Litigation and Domestic Human Rights Impact in Latin America,” in Par Engstrom (ed.), The Inter-
American Human Rights System. Impact Beyond Compliance (Palgrave Macmillan 2019). Rossana
Rocha Reis, “Transnational Activism and Coalitions of Domestic Interest Groups: Reflections on
the Case of Brazil,” in Par Engstrom (ed.), The Inter-American Human Rights System. Impact Beyond
Compliance (Palgrave Macmillan 2019).
46 Oscar Parra-Vera, “Institutional Empowerment and Progressive Policy Reforms: The Impact of
the Inter-American Human Rights System on Intra-State Conflicts,” in The Inter-American Human
Rights System (Springer 2019), 143–166.
47 Engstrom and Low (n. 45); Rocha Reis (n. 45).
48 For example, Eric A. Posner, The Twilight of Human Rights Law (Oxford University Press 2014).
domestic constituencies than it is, as the realist view would suggest, of a mon-
olithic national interest defined by the head of State.49 Dai’s approach fits the
Inter-American Court’s dynamic process of monitoring compliance. While not
established by member States but rather by the international institution itself
(and, often, against the desires of the States), the IACtHR monitoring system
does create a continuum between the decision and the conditions for its imple-
mentation, which influence each other. The political leverage needed to achieve
compliance changes over time and can be influenced by the very decision whose
implementation is sought. Moreover, a range of domestic actors with competing
interests can create or destroy the possibility of successful implementation of an
IACtHR judgment.
4. A Methodology for Thinking beyond Compliance
The dynamic process of compliance monitoring makes it possible to open the

black box of “partial non-compliance” and disaggregate the actions that States
and civil society take to achieve compliance with IACtHR judgments. In doing
so, it is possible to extend one’s view beyond compliance, to analyze the wide
range of direct and indirect effects that the Inter-American Court’s decisions
have on the protection of human rights—particularly through its interaction
with various social and institutional actors. A dynamic approach makes it pos-
sible to identify more clearly not only progress toward compliance with IACtHR
decisions but also resistance against these decisions and the wider impact of the
Inter-American Court. Scholars must be careful not to create a narrative of prog-
ress according to which all interactions between the Inter-American System and
domestic actors inevitably enhance the protection of human rights.50 They must
also account for resistance and backlash against the IAHRS that arise during the
process of monitoring compliance.
4.1. Accounting for Change over Time
A dynamic process of monitoring means that the impact of a decision on the

Inter-American System changes over time. Nevertheless, the temporal dimen-
sion is often ignored when assessing compliance with inter-American orders
as well as their impact. For example, quantitative studies of compliance usually
49Xinyuan Dai, International Institutions and National Policies (Cambridge University Press 2007).
50On narratives surrounding the IACtHR, see Stephania Yate Cortes and René Urueña, in this
volume.
ignore the year in which the respective decision was adopted, equating noncom-
pliance with a decision adopted several years before their analysis with noncom-
pliance with a decision adopted a few months prior to their analysis.
Neglecting to factor in change over time creates misleading results. Even in
the absence of State resistance, it takes time to achieve compliance with inter-
national legal orders. A more accurate analysis would first define the normal
amount of time needed for the implementation of an order, and only after this
period of time had elapsed would it interpret noncompliance as resistance to
the international decision. One strategy to account for the passing of time is to
set expectations based on the stage of the proceedings at the international level.
For example, studies could distinguish between domestic actions occurring: (1)
when the petition is presented before the Inter-American Commission; (2) when
the case is submitted to the Inter-American Court; (3) when the Inter-American
Court issues a merits judgment; and (4) a set number of years after the merits
judgment was issued (e.g., two, five, ten, fifteen).
This strategy provides a more accurate account of IAHRS proceedings over
time and thus facilitates the study of impacts beyond compliance, the analysis of
context, the application of impact measurement matrices, and more. Factoring
in time also enables domestic action to be linked more easily to a specific IAHRS
activity or stage of proceedings, so the effects of particular mechanisms or actions
can be discerned. This approach also reveals the impact of international litigation
and international decisions on domestic proceedings concerning individuals
responsible for serious human rights violations by providing additional infor-
mation that could establish correlations between international human rights
proceedings and progress or setbacks in domestic criminal proceedings.
4.2. Improving the “Quality” of Compliance
The dynamic process of compliance affects the very nature of the act of compli-
ance. Most literature concerning the impact of international legal proceedings
on domestic criminal prosecutions adopts a dichotomic compliance/noncom-
pliance approach. As such, this line of scholarship fails to register improvements
in the “quality” of the State actions that constitute compliance.
Not all acts of compliance are the same in terms of truth, justice, and
nonrepetition. For example, in the case of Court decisions that order criminal
prosecutions for human rights violations, the prosecution of perpetrators with
higher levels of responsibility (for example, those with command and control
over the atrocities or who hold positions of political power) might have a wider
impact to prevent impunity, than the prosecutions of lower-level perpetrators,
who were simply following orders or were paid for committing their crimes.
While both prosecutions are a step forward in terms of compliance with the
Court’s orders, we suggest that prosecutions of perpetrators with substantial po-
litical or military decision-making power imply a better “quality” of compliance
than prosecution at the lowest level of the criminal structure.
As will be described in this section, inter-American adjudication creates
better outcomes in the administration of justice by contributing to prosecutorial
and judicial action and by ensuring that those in power are less sheltered from
prosecution. This is a remarkable achievement considering the Latin American
context of impunity, particularly for individuals who have committed serious
human rights violations.
The Inter-American Court’s decisions can trigger specific actions in domestic
criminal proceedings, including calling witnesses, hearings, indictments, and
judgments. Consider the well-known case of Barrios Altos v. Peru.51 In 1989,
Peru’s National Intelligence Service and Army Intelligence Service began to im-
plement “Plan Ambulante,” an operation monitoring residents of the Barrios
Altos neighborhood in Lima, who were suspected of being part of the Shining
Path (Sendero Luminoso) guerrilla group. On November 3, 1991, six armed
individuals burst into a neighborhood fundraising party, or “pollada” as it
is called in Peru, where they proceeded to kill fifteen people and wound four
others. The victims filed a petition before the Inter-American Commission on
June 30, 1995, and the Inter-American Court issued its judgment on the matter
on March 14, 2001, six years after the initiation of proceedings before the IAHRS
and ten years after the incident in question.52
Barrios Altos is a paradigmatic inter-American case because it constitutes the
first IACtHR ruling on amnesty laws for serious human rights violations. In this
case, the Inter-American Court found that Peru’s amnesty laws were incom-
patible with the protection of fundamental rights recognized by the American
Convention on Human Rights and that they consequently had no legal effects.53
Additionally, and most importantly for this chapter, Barrios Altos illustrates how
active engagement of victims and victims’ representatives with the IAHRS can
shape domestic judicial proceedings and how governments and judicial actors
can prompt the IACtHR to suggest alternate methods for the implementation of
its orders.
When Barrios Altos was submitted to the Court, then President Valentín
Paniagua’s transitional government moved to recognize the State’s responsi-
bility, and the IACtHR decided the case in March 2001. The Inter-American
Court declared not only that the State was obligated to investigate the individuals
51 Final Report of the Truth and Reconciliation Commission (TRC), Vol. VII, Las ejecuciones
extrajudiciales en Barrios Altos (The extrajudicial executions in Barrios Altos), 475–493.

52 Caso Barrios Altos v. Perú. Fondo [2001] IACtHR, Ser. C No. 75, para. 2.
53 Ibid., para. 18.
responsible for the human rights violations that had occurred but also that the
amnesty laws releasing them from responsibility were “without legal effects,” as
the victims and the IACHR had requested.54 A few months later, the victims’ rep-
resentatives asked the Inter-American Commission to file a request for an in-
terpretation of the judgment, to clarify if the effects of the Barrios Altos decision
were general or if they were limited to the particular case.55 In September 2001,
the IACtHR declared that “given the nature of the violation that amnesty laws
No. 26479 and No. 26492 constitute, the effects of the decision in the judgment
on the merits of the Barrios Altos cases are general in nature.”56
Peru’s Prosecutor’s Office complied with the decision by ordering prosecutors
to request that the amnesty laws not be applied. This enabled prosecutions con-
cerning serious human rights violations to proceed domestically, without the
need for a separate petition to the IAHRS.57 These prosecutions included consti-
tutional indictment proceedings against former President Alberto Fujimori for
the extrajudicial executions in the neighborhood of Barrios Altos and for the
kidnappings of Gustavo Gorriti and Samuel Dyer, among other individuals crit-
ical of his government.
Moreover, over the course of two decades, the IACtHR intervened at critical
junctures in the decision’s implementation to issue additional orders that guided
all branches of the government toward the effective prosecution and sentencing
of the individuals most responsible for the Barrios Altos incident and other sim-
ilar cases.58 The victims and their representatives requested these orders from the
IACtHR and the State, especially the executive and the judiciary, implemented
them. These interactions resulted in the Inter-American Court’s determination
that the human rights violations in Barrios Altos were crimes against humanity,
which prevented the early release to Fujimori and others; its establishment of an
obligation to extradite Fujimori in the case of La Cantuta v. Peru; and its pro-
hibition that the application of pardons to Fujimori, with consequences for the
executive and the judiciary, in a joint decision concerning Barrios Altos and La
Cantuta.
54 The organizations that represented the victims were Comisión de Derechos Humanos
(COMISEDH); the Asociación Pro-Derechos Humanos (APRODEH); the Fundación Ecuménica

para el Desarrollo y la Paz (FEDEPAZ); Instituto de Defensa Legal (IDL); Coordinadora Nacional de
Derechos Humanos (CNDDHH); and the Center for Justice and International Law (CEJIL). Viviana
Krsticevic, El derecho común transformador: el impacto del diálogo del sistema interamericano de
derechos humanos con las víctimas en la consecución de justiciar, document submitted to the Max
Planck Institute for International and Public Law, 2018.
55 Caso Barrios Altos v. Peru [2001] IACtHR, Interpretation. Ser. C No. 83.
56 Ibid, para. 18.
57 Viviana Krsticevic, Implementación de las decisiones del Sistema Interamericano de Derechos
Humanos. Aportes para los procesos legislativos (Centro por la Justicia y el Derecho Internacional
2007), 18.
58 Most notably La Cantuta v. Peru, Fondo, Reparaciones y Costas, Inter-Am. Ct. H.R. (Ser. C) No.
162 (Nov. 29, 2006).

Barrios Altos demonstrates the impact that the Inter- American Court’s
process of monitoring compliance can have on domestic criminal proceedings
and how such impact is characterized by both progress and setbacks. It also
shows how, over time, the role of institutional actors can change: at first, the ex-
ecutive supported the IACtHR’s decision in Barrios Altos, but later governments
were reluctant to hold accountable the individuals responsible for the human
rights violations in that case and even attempted to secure the early release of
former president Fujimori from prison. Finally, Barrios Altos illustrates the im-
portance of the participation of victims and civil society at the domestic and
international levels for the development and implementation of international
human rights law.59
The case of Barrios Altos provides a concrete example of how the Inter-
American Court’s process of monitoring compliance improves the quality of
that compliance. Although Peru had punished some key perpetrators before
this process began, the IACtHR’s continued monitoring of domestic crim-
inal proceedings kept the pressure on the State to investigate, prosecute, and
punish the many perpetrators who had not been held accountable and to re-
ject requests to exonerate the former president and others. Ultimately, all of the
case’s perpetrators, intellectual and material, were prosecuted, including high-
ranking members of the government and military such as President Fujimori, his
advisor Vladimiro Montesinos Torres, General Julio Salazar Monroe, General
Juan Norberto Rivera Lazo, and General Nicolás de Bari Hermoza Ríos. Their
sentences, twenty-five years in prison, were significant. This was also the first
time in the world an elected president had been convicted of crimes against hu-
manity. This is especially striking given that Latin America has had high rates
of impunity in cases of serious human rights violations and Peru, prior to the
IACtHR’s intervention with a stronger accountability framework, was no
different.
Analyses of the process of monitoring compliance should distinguish between
types of perpetrators in orders concerning criminal prosecutions. In particular,
they should distinguish between intellectual and material authors and between
high-and low-ranking officials. Instead of considering only whether an IACtHR
decision could increase the percentage of perpetrators held accountable overall,
these analyses should also disaggregate based on the responsibility and rank of
the perpetrators. This variable can then be cross-referenced to evaluate the im-
pact of other factors on domestic criminal proceedings, such as the participation
of the victims and civil society, the involvement of the press, and the attitude of
the government toward the Inter-American System.
59 See Krsticevic (n. 57).

This methodology will improve analyses of the types of perpetrators of

human rights violations and the differentiated effects of the IAHRS on their in-
vestigation and punishment. The Inter-American Court has played an impor-
tant role in promoting domestic criminal proceedings against those involved in
human rights violations, including the prosecution of high-ranking authorities.
Including this factor in analyses of compliance will help demonstrate and explain
the impact of the IAHRS on these proceedings.
4.3. Institutional Impact
Many limitations of quantitative scholarship on compliance with inter-American

orders are derived from a narrow understanding of the role of international judi-
cial decisions in domestic politics. Some scholars have countered with a “beyond
compliance” approach, which explores IAHRS impacts that do not fit within the
compliance/noncompliance dichotomy.60
The Inter-American System has both direct and indirect effects on domestic
legal systems. Direct effects are the result of decisions against the relevant State
and can be equated with the concept of compliance. Indirect effects are triggered
by the standards, if not the specific content, of orders against any State and can
be equated with impact. Examining not only the relevant State’s implementation
of an IACtHR decision (direct effects) but also this decision’s influence on other
States (indirect effects) is the essence of the impact beyond compliance approach.
To understand the effects of the IACtHR’s orders, it is necessary to under-
stand each country’s norms, institutions, practices, and attitudes.61 In much of
Latin America, receptiveness to international human rights law (e.g., the adop-
tion of human rights standards by domestic courts, and the ability of civil so-
ciety actors to mobilize for justice in different thematic areas)62 is connected to
the region’s experience of dictatorships, conflict, and structural discrimination.63
Nevertheless, the extent of this receptiveness varies significantly and can change
over time for both government and civil society.
The following variables should thus be considered in analyses of the impact
of the Inter-American System: (1) prosecution and punishment; (2) truth and
60 See Dai (n. 48); and La Cantuta (n. 58).

61 See Courtney Hillebrecht, “The Domestic Mechanisms of Compliance with International
Human Rights Law: Case Studies from the Inter-American Human Rights System” [2012] 34 Human
Rights Quarterly 959–985.
62 See Engstrom (n. 12); on Brazil: Torelly (n. 20).
63 Mariela Morales Antoniazzi, “El Estado abierto como objetivo del Ius Constitutionale
Commune. Aproximación desde el impacto de la Corte Interamericana de Derechos Humanos,”

in Armin von Bogdandy, Mariela Morales Antoniazzi, and Héctor Fix Fierro (coords.), Ius
constitutionale commune en América Latina. Rasgos, potencialidades y desafíos (UNAM 2014).
memory initiatives, both official (those carried out at the initiative of the State)
and unofficial (those implemented at the initiative of civil society, victims, etc.);
(3) domestic legal reforms in relation to the human rights obligations (whether
positive or negative, that is, whether enhancing the protection of human rights
or undermining it); and (4) impact of other factors on domestic proceedings.
The Inter-American System conceives of compliance monitoring as part of a

larger process of human rights protection. In accordance with this perspective,
low levels of compliance should be understood in the context of broad social
transformation through law. Thus, somewhat paradoxically, noncompliance can
at times be more conducive to impact than full compliance.
Most of the mechanisms for monitoring compliance are less concerned with
enforcing certain orders than with creating cognitive and political frameworks
that will facilitate local pressure toward compliance, usually by a heterogenous
set of institutional actors (such as ombudsman’s offices or prosecutors’ offices)
as well as domestic NGOs and social movements. The Inter-American Court’s
process of monitoring compliance is thus directed toward the socialization of
relevant domestic actors, a process “by which actors adopt the beliefs and be-
havioral patterns of the surrounding culture.”64 This socialization occurs as the
IACHR and the IACtHR gather information, conduct on-site visits, and hold
decentralized compliance hearings. The IAHRS uses compliance monitoring
mechanisms as a tool to open spaces of dialogue and alter power dynamics
with local stakeholders, working with civil society to create the conditions for
compliance.
The inter-American approach to compliance blurs the lines between adju-
dication and compliance monitoring, rejecting the notion that the reparations
ordered in the IACtHR’s merits judgments are crystallized or carved in stone.
These measures are often general, such that the precise contours of their do-
mestic implementation will only become apparent through interactions with
State authorities, victims and their representatives, and civil society. An IAHRS
order thus defines the aim and scope of the measures a State must implement but
sometimes leaves the details of implementation to domestic actors. The Inter-
American System also challenges the notion that the context of compliance is
static. The Inter-American Court’s approach is, instead, a dynamic process
of normative persuasion, that is, “a social process of interaction that involves
64 Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights through
International Law (Oxford University Press 2013).

changing attitudes about cause and effect in the absence of overt coercion.”65
Nevertheless, the IACtHR maintains its role as the final authority on compliance,
as evidenced in Barrios Altos.
This chapter began by discussing the contributions and limitations of cur-
rent scholarship on compliance with and the impact of international decisions.
It addressed the relationship between compliance and impact, thereby bridging
a gap in the literature. It also proposed a methodology that complements and
perfects other qualitative and quantitative approaches to evaluating the effects
of international orders. Overall, it laid the foundation for an improved under-
standing of the various factors that interact to implement IAHRS decisions by
suggesting changes to how compliance and impact should be assessed.
65 Jeffrey T. Checkel, Why Comply? Social Learning and European Identity Change (International
Organization 2001), 562.

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
By Katya Salazar and Daniel Cerqueira
1. Introduction
This chapter describes certain strategies of the Due Process of Law Foundation
(DPLF) that aim to expand the impact of legal standards from the decisions of
the Inter-American Commission on Human Rights (IACHR) and the Inter-
American Court of Human Rights (IACtHR). Based on DPLF’s experience
as a regional civil society organization engaging with the noncontentious
mechanisms of the Inter-American Human Rights System (IAHRS), such as
monitoring and promotion activities (which excludes the system of petitions,
cases, and precautionary measures), this chapter provides a detailed account,
through some examples, of the joint action among DPLF, local and/or national
organizations aimed at achieving and enhancing the impact of inter-American
standards in the Americas.
The first section deals with the conceptual difference between compliance
with the decisions of the organs of the IAHRS and the impact of inter-American
standards as parameters for State action based on the decisions of these organs.
The section stresses the fact that in spite of the low level of compliance with
decisions pertaining to contentious cases, the impact of such decisions upon
legislative processes, the design of public policy, and judicial practice in Latin
America is irrefutable. The second section describes the institutional mission,
strategies, and working methods developed by DPLF with the objective of
raising awareness and disseminating information about the IAHRS’s standards
Katya Salazar and Daniel Cerqueira, 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 In: The Impact of the
Inter-American Human Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-
Gregor, and Mariela Morales Antoniazzi, Oxford University Press. © Katya Salazar and Daniel Cerqueira 2024.
DOI: 10.1093/oso/9780197744161.003.0031
604 Katya Salazar and Daniel Cerqueira
to ensure that these are properly used by State agents dedicated to the adminis-
tration of justice in particular and legal agents more generally.
The third section explains how DPLF has tried to translate the demands of
local and national civil society organizations into the development of new inter-
American standards. To this end, we explain certain advocacy activities toward
the IACHR prior to the development of new standards with regard to two specific
topics: the extraterritorial responsibility of the countries of origin of transnational
corporations involved in human rights violations, and the link between cor-
ruption and human rights. In our concluding remarks, we underline the role of
civil society in the process of the creation of new standards and narratives by the
organs of the IAHRS and in seeking to enhance the impact of IAHRS’s decisions.
2. Impact of the IAHRS, beyond Compliance with Decisions

Pertaining to Contentious Cases
One of the main challenges concerning the effectiveness of the IAHRS is State
parties’ low level of compliance with the decisions of its bodies. This challenge has
been highlighted by the IACHR and the IACtHR. For example, the first Strategic
Plan adopted by the IACHR for 2011–2015 established “promoting full compliance
with its decisions and recommendations” as one of its strategic objectives.1 In the
same way, the Strategic Plan for 2017–2022 sets out twenty programs of work linked
to five strategic objectives2 that are integrated into a multidisciplinary “Special
Program to Monitor IACHR Recommendations.” In the words of the IACHR:
While progress has been made and some States have, for example, introduced
legislative reforms to enforce international decisions, the challenge of reaching
1 IACHR, “Strategic Plan 2011–2015,” 40, <https://www.oas.org/en/iachr/docs/pdf/iachrstrate
gicplan20112015.pdf> (accessed February 5, 2022).

2 According to the Strategic Plan of the IACHR, these objectives are: 1. contribute to the devel-
opment of a more effective and accessible system of inter-American justice in order to overcome
practices of impunity in the region and achieve comprehensive reparations for victims through deci-
sive measures for the strengthening of the petition and case system, friendly settlements, and precau-
tionary measures; 2. have an impact on prevention measures and the factors that lead to human rights
violations through the coordinated use of IACHR mechanisms and functions to achieve improved
capacity for monitoring and coordinating relevant, timely, and appropriate responses; 3. promote
democracy, human dignity, equality, justice, and fundamental freedoms based on an active contri-
bution to the strengthening of State institutions and public policies with a human rights approach
in accordance with inter-American norms and standards and to the development of the capacities
of social and academic organizations and networks to act in defense of human rights; 4. promote
the universalization of the Inter-American Human Rights System through coordinated initiatives
with the Inter-American Court and to cooperate with other international, regional, and subregional
human rights agencies and mechanisms; and 5. guarantee the human resources, infrastructure, tech-
nology, and budget necessary for full implementation of the Inter-American Commission on Human
Rights’ mandate and functions by means of results-based institutional management.
Strategies of the Due Process of Law Foundation 605
a level of implementation that ensures the effectiveness of the IASHR remains.

Therefore, and as a central component of the Plan’s strategy, the IACHR intends
to develop a cross-cutting program in which it expects to initiate coordinated
actions to follow up on recommendations using all available mechanisms (case
reports, resolutions on precautionary measures, thematic and country reports,
hearings, and monitoring of friendly settlement agreements).3
For several years now, the IACtHR has adopted the practice of issuing
resolutions and convening hearings on compliance with the reparation meas-
ures contained in its judgments. This practice is regulated by Article 69 of its
Rules of Procedure. In its annual reports, the Court has highlighted the neces-
sity of overcoming the challenges linked to the low level of compliance with its
judgments. In this regard, it has stressed the importance of the involvement of
national human rights institutions, domestic courts, academia, and civil society
organizations with the aim of contributing to the realization of the reparation
measures contained in the judgments of the Inter-American Court.4
Expert studies have shown the low level of State compliance with reparation
measures stipulated by the IACHR in its merits reports and by the IACtHR in its
judgments. Based on a quantitative analysis, some of these studies indicate a par-
ticularly low level of compliance regarding reparation measures on the obliga-
tion to investigate and punish human rights violations. On the other hand, civil
society organizations have participated in processes of dialogue with the IAHRS
organs aiming at perfecting the mechanisms for monitoring compliance with its
decisions.5
In the light of the extensively documented claim6 about the low level of com-
pliance with decisions, it is important to clarify certain concepts that will shape
3 IACHR, “Strategic Plan 2017–2022,” 62, <https://www.oas.org/en/iachr/mandate/StrategicP
lan2017/docs/StrategicPlan2017-2021.pdf> (accessed February 5, 2022).

4 IACtHR, “Annual Report 2018,” 76–78, <https://www.corteidh.or.cr/sitios/informes/docs/
ENG/eng_2018.pdf> (accessed February 5, 2022).

5 For example, see the working document compiled by members of the International Network for
Economic, Social and Cultural Rights (ESCR-Net) who are urging the IAHRS to adopt certain meas-
ures to bring about the improved monitoring of recommendations made in its final merits reports.
ESCR-Net, “Implementation of decisions of the Inter-American Commission on Human Rights—
discussion paper of ESCR-Net’s Strategic Litigation Working Group” (2018), <https://www.escr-net.
org/sites/default/files/201802-discussion-paper-of-escr-nets-strategic-litigation-working-group.
6 For a more detailed paper on this topic, see Fernando Basch et al., “La Efectividad del
Sistema Interamericano de Protección de Derechos Humanos: Un Enfoque Cuantitativo sobre su

Funcionamiento y sobre el Cumplimiento de sus Decisiones” [2010] 7 Sur, <http://www.conectas.
org/Arquivos/edicao/publicacoes/publicacao-201424165630161-76428001.pdf>, and Open Society
Justice Initiative, “From Judgment to Justice: Implementing International and Regional Human
Rights Decisions, Chapter II. The Inter-American Human Rights System” (2010), <http://www.ope
nsocietyfoundations.org/sites/default/files/from-judgment-to-justice-20101122.pdf> (accessed
February 5, 2022).
subsequent sections of this chapter. First, we need to make a distinction between

the notions of “compliance with decisions of the IASHR” on the one hand, and
the “impact of Inter-American standards” on the other. The first concept relates
to the fulfillment of the reparation measures stipulated in final decisions on con-
tentious cases. The second relates to the IAHRS’s ability to create parameters for
State action and to ensure that users of the IAHRS observe these parameters, es-
pecially State agents and institutions.
It is also important to clarify what we mean by the term “inter-American
standards.” The word standard denotes a behavior model required when
complying with a certain obligation. Doctrine defines “Inter- American
standards” as “behavioural guidelines for the State Parties to the Convention to be
used as behavioural evaluation criteria and as legal rules whose content implies
the establishment of specific obligations upon the States, whereby failure to
comply shall bring about consequences relating to international responsibility.”7
Another conceptual explanation necessary to enable a proper understanding
of the inter-American standards’ creation process is related to the IAHRS’s pro-
tection, promotion, and monitoring pillars. For the purposes of this chapter,
“protection” encompasses the ability of the IAHRS organs to recognize and pro-
nounce judgment on petitions, cases, and requests for urgent (precautionary
and provisional) measures. “Monitoring” refers to the supervision activi-
ties performed by the IACHR through its country and thematic reports, press
releases, thematic hearings, and annual reports. Lastly, the pillar of “promotion”
covers the thematic reports, training, professional development programs, and
other initiatives of the IACHR for disseminating inter-American standards.8
Primarily, the inter- American standards emanate from the obligations
contained in the American Convention on Human Rights (American
Convention, or ACHR) and in the other instruments that form the norma-
tive framework of the IAHRS.9 In Kelsenian terms, we could say that these
7 Translation of quote by Manuel Quinche Ramírez, Los estándares de la Corte Interamericana y la
Ley de Justicia y Paz (Editorial Universidad del Rosario 2009), 28.

8 The responsibilities conferred upon the IACHR in its first Statute, adopted during the Fifth
Meeting of Consultation of Ministers of Foreign Affairs in 1959, were restricted to the functions of
monitoring and promotion, with no recognition of the power to receive petitions and contentious
cases and to pronounce judgment upon them. In the light of the consolidation of mechanisms for in-
dividual petitions in the European and universal human rights context, the member States of the OAS
decided to modify the Statute of the Commission during the Second Extraordinary Inter-American
Conference, in 1965, which led to the IACHR beginning to pronounce judgment upon petitions and
cases from 1967. For an explanation of the development of how the IACHR has prioritized the var-
ious working pillars since its creation in 1959 until 2015, see Daniel Cerqueira and Katya Salazar,
“Las atribuciones de la Comisión Interamericana de Derechos Humanos antes, durante y después del
proceso de fortalecimiento: por un balance entre lo deseable y lo possible,” in Camila Barretto Maia
et al., Desafíos del Sistema Interamericano de Derechos Humanos—nuevos tiempos, viejos retos (Due
Process of Law Foundation 2016), 144–189.
9 See IACHR, “Basic Documents in the Inter-American System,” <http://www.oas.org/en/iachr/
mandate/basic_documents.asp> (accessed February 5, 2022).

instruments establish rules of conduct for the State parties, whereby the failure
to comply with these rules generates legal sanctions. We do not intend to delve
into Hans Kelsen’s account of international law in his Pure Theory of Law,10 but to
reinforce the premises upon which this chapter is based, we will employ the ter-
minology used by Kelsen and the discrepancies between the two main theorists
of legal positivism on the defining criteria of the effectiveness of law.
Kelsen distinguishes between the concepts of validity and efficacy of a legal
norm, maintaining that while the former means that individuals must follow the
conduct prescribed in the mentioned norm, the second refers to actual compli-
ance of behavior with what has been established in the norm. To sum up, validity
relates to the existence of obligations established in law and efficacy relates to the
compliance of the behavior of the addressees of the obligations prescribed by law
with the obligations themselves.11
Contrary to Kelsen, Herbert L.A. Hart moves away from the methodolog-
ical dependence of the so-called primary norms that aim to prescribe behaviors
and penalize their violation. Hart emphasizes what he terms secondary norms,
which include the rules of change (creation of law), rules of adjudication (appli-
cation of law), and rules of recognition (parameters for determining whether or
not a norm belongs to a given legal system). For Hart, even if the compliance of
individuals with the behaviors described in the primary rules is one of the essen-
tial objectives of any legal system, the efficacy of the system is based on the exist-
ence of a minimum level of agreement about the content of the secondary norms
on the part of the operators of the law, that is, the persons upon whose conduct
the very existence of the secondary rules depends.12
Without trivializing the theoretical depth of the two main authors of legal
positivism, we draw upon their work in order to highlight the difference be-
tween compliance with decisions and the implementation of the standards of
the IAHRS. Compliance requires State observance of the obligations prescribed
in “inter-American law,” defined here as the norms derived from the inter-
American instruments and their interpretation by the organs of the IAHRS.
10 According to Kelsen, law—in the sense of a legal system—comprises a coercive order of human
conduct, supposed to be sovereign, that connects together certain facts determined by it as conditions
of coercive acts determined by it. For the author, international law is in line with this definition in that
it establishes specific sanctions for behavior that deviates from the prescribed norms. In the absence
of a supranational entity authorized to impose sanctions on the States, in international law sanctions
take the form of reprisals and wars, exercised by the States themselves, if they feel that their interests
are affected by the failure of another State to comply with a rule established in a treaty or in an-
other source of international law. See Hans Kelsen, Pure Theory of Law (University of California Press
1967), ch. VII.
11 In accordance with the descriptive epistemology that characterizes legal positivism, Kelsen
stresses that while the object of study of the philosophy of law is the validity of law, the efficacy of law
is the object of the study of legal sociology.
12 H.L.A. Hart, The Concept of Law (Oxford University Press 1961).
Above all, the analysis of compliance proceeds with an evaluation of the com-
pliance of the actions of the denounced State with the specific reparation
obligations prescribed by the adjudicatory organs of the IAHRS—the IACHR
and the IACtHR. In Kelsenian terms, the analysis of compliance concerns the
efficacy of the primary norms that make up “inter-American law” and whether
the sanctions provided by the adjudicatory organs of the IAHRS are effectively
respected by State parties, the addressees of the System’s norms.
In turn, the impact of the standards of the IAHRS includes the existence of
a minimum level of agreement about what “inter-American law” actually is,
not only with regard to the content of the primary rules but also with regard to
the integration between the norms (rules and principles) that make up “inter-
American law” and the various domestic laws of States. In the current consti-
tutional paradigm in most of this continent’s countries, particularly in Latin
America, the law applicable to a certain legal dispute encompasses both do-
mestic and international rules, binding State authorities to base their decision
on the rules that ensure the human rights at stake to the greatest extent possible.
In light of this premise, the efficacy of the IAHRS depends on the integration of
inter-American and domestic law via the minimum level of agreement on the
part of legal professionals in the domestic sphere that lead them to base their
decisions on inter-American standards.
One of the indicators of such agreement is, of course, the existence of fun-
damental judicial decisions in the inter-American jurisprudence. However,
the efficacy of the IAHRS is not limited to respect or disrespect of the IACtHR’s
judgments and IACHR’s recommendations. With regard to the rule of adjudica-
tion of “inter-American law,” the dissemination of the doctrine of “convention-
ality control” among the domestic courts, the transconstitutionalism,13 and the
consolidation of a ius constitutionale commune14 are expressions of the efficacy of
the IAHRS. From our point of view, as an adjudicatory system that intends to ad-
judicate specific cases, the IAHRS has not been efficacious, given its inability to
provide timely responses to the victims of human rights violations and the high
level of noncompliance with the reparations stipulated in IAHRS decisions.15
Nevertheless, as a source of legal standards that are capable of influencing the
creation and interpretation of rules by the States parties of the IAHRS, its efficacy
is demonstrable.
13 Marcelo Neves, Transconstitucionalismo (WMF Martins Fontes 2009).

14 Armin von Bogdandy et al., “Ius Constitutionale Commune En América Latina: A Regional
Approach to Transformative Constitutionalism” (2016) MPIL Research Paper Series No. 2016-21.
15 In this respect, see The Center for Justice and International Law (CEJIL), “Implementación de
las Decisiones del Sistema Interamericano de Derechos Humanos—aportes para la administración

de la justiciar” (2017), <https://cejil.org/en/publications/implementation-of-the-inter-american-
human-rights-systems-decisions-only-in-spanish/> (accessed February 5, 2022).
There are various examples of cases in which, despite the fact that reparation
measures arising from the judgments of the IACtHR are disrespected, these
measures have influenced the actions of the denounced States and of other States
parties of the IAHRS. This dualism can be verified on the basis of legal reforms,
public policy design, and legal interpretations that are oriented toward the inter-
American standards. Among others, we can mention two cases relating to the
application of amnesty laws in the face of serious human rights violations. The
judgment that opened up the jurisprudential development of the IACtHR in
this matter—the Case of Barrios Altos v. Peru in 2001—is still in the compliance
phase, and the IACtHR has periodically been called upon to decide upon meas-
ures adopted by the various bodies of the Peruvian State, which blatantly fail to
comply with the reparation measures.16
The judgment in the Barrios Altos case is just one of the various judgments in
which the IACtHR has ordered a State to revoke amnesty laws and in which the
reparation measures remain in the compliance stage. Despite this, the impact
that the rule derived from this judgment has had upon legislative and jurispru-
dential creation in the region is undeniable.17 Various academic papers detail
the impact that the rule on the prohibition of amnesty laws in the face of serious
human rights violations has had on legislative and jurisdictional actions in the
region.18 Another matter addressed in judgments that are still in the compliance
stage but whose rules have had a notable impact in different countries relates to
the restriction upon the use of military proceedings to hear cases pertaining to
violations of human rights and to try civilians. Since the first verdict dealing with
this matter—the Case of Castillo Petruzzi et al. v. Peru19—the IACtHR has pro-
nounced several judgments20 reiterating the obligation to restrict the jurisdiction
of military courts to the protection of legal interests linked to the actual functions
16 See, e.g., Case of Barrios Altos and Case of La Cantuta v. Peru [2018] IACtHR.
17 This rule establishes the obligation of the States to “refrain from resorting to amnesty, pardon,
statute of limitations and from enacting provisions to exclude liability, as well as measures, aimed
at preventing criminal prosecution or at voiding the effects of a conviction” in the case of serious
violations of human rights. See, among other judgments, Gutiérrez Soler v. Colombia [2005] IACtHR,
Ser. C No. 132, para. 97.
18 See, e.g., Oscar Parra, “La jurisprudencia de la Corte Interamericana respecto a la lucha contra
la impunidad: algunos avances y debates” [2012] 13 Revista Jurídica de la Universidad de Palermo,

<https://www.palermo.edu/derecho/revista_juridica/pub-13/13JURIDICA_01PARRAVERA.pdf>
(accessed February 5, 2022); and DPLF, “Digest of Latin American jurisprudence on international
crimes” (2009) Vol. I, Chapter VI, Section 2, <http://www.dplf.org/sites/default/files/digestenglishs.
19 IACtHR, Case of Castillo Petruzzi et al. v. Peru, Merits, Reparations and Costs, Judgment of May
30, 1999, Ser. C No. 52, para. 128.

20 For a more detailed analysis of the matter, see Juan Carlos Gutiérrez y Silvano Cantú, “The
Restriction of Military Jurisdiction in International Human Rights Protection Systems” [2010] 13

Sur, <https://sur.conectas.org/en/the-restriction-of-military-jurisdiction-in-international-human-
rights-protection-systems/>.
of the armed forces.21 Again, although most of the verdicts pronounced by the
IACtHR are still in the compliance stage, there are many examples of reforms
to military codes of procedure, laws, and jurisprudence relating to this matter,
brought about through the implementation of inter-American standards.
We would like to stress the fact that in the two examples mentioned, the
judgments of the IACtHR are part of a process in which the IACHR has played
a fundamental role. For instance, since the start of the 1990s, the Commission
has referred to the incompatibility of amnesty laws approved in Argentina22 and
Uruguay23 with the obligations to investigate and to sanction serious violations
of human rights as established in the American Convention. In its Annual Report
1996, the IACHR reiterated this stance in relation to the amnesty law enacted by
Guatemala24 and did the same in relation to every single one of the countries that
has adopted amnesty laws in the region.
Thus, the rule established in the judgment in the Case of Barrios Altos v. Peru
in 2001 was preceded by a decade of IACHR pronouncements based on final
reports on the merits of cases and by pronouncements made in the context
of monitoring and promotion activities.25 It is worthy of note that, in the case
of the amnesty law of El Salvador, the IACHR declared this law incompatible
with the inter-American standards for the first time through a letter sent to the
government of El Salvador on March 26, 1993, six days after the enactment of
the said law. The concern shown in that case has been reiterated in the Report on
the Situation of Human Rights in El Salvador in 199426 and in final reports on the
merits of cases.27
Other examples of the development of standards on the basis of
pronouncements upon cases, thematic reports, or country reports on the part
of the IACHR that would subsequently be superimposed by jurisprudential
21 The IACtHR has concluded that, under penalty of the violation of the “principle of the natural
judge” and the guarantees of due process, ordinary justice is always competent to investigate, try, and
punish the perpetrators of violations of human rights.
22 IACHR, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311 v. Argentina, Report No. 28/92
of October 2, 1992.
23 IACHR, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, and 10.375 v. Uruguay,
Report No. 29/92 of October 2, 1992.

24 IACHR, “Annual Report 1996,” Chapter V, Human Rights Developments in the Region—
section on Guatemala.
25 For an analysis of precedents in this matter on the part of the IACHR and of the obligation to
leave without effect any domestic laws contrary to the obligation to investigate and sanctions serious
violations of human rights, see the Chapter IV a) Par. 72 to 86 of the Annual Report of the IACHR of
2013, <http://www.cidh.org/countryrep/ElSalvador94eng/II.4.htm> (accessed February 5, 2022).
26 IACHR, “Report on the Situation of Human Rights in El Salvador,” Sec. I, OAS/Ser.L/II.85,
Doc. 28 Rev., February 11, 1994, which quotes the letter sent by the IACHR to the Government of El
Salvador on March 26, 1993.
27 See, e.g., IACHR, “Report 1/99, Case 10.480, Lucio Parada Cea et al.,” January 27, 1999, paras.
111–16; “Report 136/99, Case 10.480, Ignacio Ellacuría, S.J, Segundo Montes, S.J., Armando López,
S.J., Ignacio Martín Baró, S.J., Joaquín López y López, S.J., Juan Ramón Moreno, S.J., Julia Elba
Ramos, and Celina Mariceth Ramos, El Salvador,” December 22, 1999, paras. 197–232.
rules of the IACtHR can be seen in relation to the incompatibility of contempt

laws with the right to freedom of expression,28 the legal definition as “torture”
of sexual violence exercised during police or military operations,29 and the pro-
tection of the lands of Indigenous people in the context of the right to collective
property,30 among others.
Beyond the endogenous process of the development of standards inside the
organs of the IAHRS, we would also like to explain the exogenous process and,
in this context, the role that a regional civil society organization (CSO) such as
DPLF can play here. In the following we will address certain strategies with this
objective, and we will explain the more relevant outcomes for the creation and
impact of the inter-American standards, with a focus on two topics that DPLF
has recently worked on: the extraterritorial responsibility of the countries of or-
igin of transnational companies involved in violations of human rights, and the
link between corruption and human rights.
3. DPLF’s Strategies for Increasing the Impact of the

IAHRS Decisions
DPLF is a regional, nongovernmental organization, whose mandate is to pro-

mote the rule of law and respect for human rights in Latin America. Founded
in 1996 by former members of the Truth Commission of El Salvador, the organ-
ization was created following the peace accords that brought an end to the civil
war in El Salvador between 1980 and 1992.31 One of the main topics dealt with
28 In 1995, the IACHR published a thematic report on this subject, ahead both in terms of time and
depth of analysis of the first judgment of the IACtHR relating to a conflict between the criminal of-
fense of contempt of court and the right to freedom of expression, viz., the Case of Palamara Iribarne
v. Chile. See IACHR, “Report on the Compatibility of “Desacato” laws with the American Convention
of Human Rights,” OAS/Ser.L/V/II.88, Doc. 9 Rev., February 17, 1995, and Case of Palamara Iribarne
v. Chile [2005] IACtHR, Ser. C No. 135.
29 IACHR, “Report No. 5/96, Case 10.970, Raquel Martín de Mejía, Peru,” March 1, 1996, Section
B, Considerations on the substance of the case; this precedes the first case in which the IACtHR
considered the legal status of sexual violence as a category of torture by several years. In this regard,
see Case of the Miguel Castro-Castro Prison v. Peru [2006] IACtHR, Ser. C No. 160.
30 IACHR, “Resolution 12/85, Yanomami Indians, Brazil,” March 5, 1985, dealing with the obliga-
tion of the State of Brazil to demarcate, define, and protect the territory of the indigenous Yanomami
people, this obligation being broadened with more detail decades later in the Case of the Mayagna
(Sumo) Awas Tingni v. Nicaragua [2001] IACtHR, Ser. C No. 79.
31 The Truth Commission for El Salvador was created in the light of the peace accords signed in
1991 between the government of El Salvador and the Farabundo Martí National Liberation Front,
putting an end to the civil war. The Commission was headed by Thomas Buergenthal, former
President of the Inter-American Court of Human Rights and the International Court of Justice, other
members including Belisario Betancur, former President of Colombia, and Reinaldo Figueredo,
former Minister of Foreign Affairs of Venezuela. See United States Institute of Peace, “From Madness
to Hope: The 12-Year War in El Salvador: Report of the Commission on the Truth for El Salvador”
(2001), <https://www.usip.org/files/file/ElSalvador-Report.pdf> (accessed February 5, 2022).
in the final report of this Commission was the role of the El Salvador judicial
system during the war. Its lack of efficacy and independence enabled violence in
the country to progress with complete impunity. Due to the need to make this
situation visible and prevent similar events in the region, the members of the
Truth Commission decided to create an organization aimed at strengthening the
judiciaries of Latin American to make them more efficient and democratic.32
Over the years, the mandate of DPLF has adjusted to challenges in the way of
the enjoyment of human rights and democratic governance throughout the hem-
isphere. At present, DPLF is a regional organization made up of professionals
of various nationalities based in Washington, DC, with permanent personnel in
Mexico, El Salvador, Peru, and Bolivia. The organization’s strategy is based on the
creation of knowledge, exchange of experiences and lessons learned, lobbying at
national and international levels in coordination with its allies in the region, and
the strategic dissemination of information.
During its twenty-three years of existence, DPLF has focused its work on
countries with chronic situations of impunity and ineffective justice systems. In
recent years, DPLF has also focused on countries that are moving toward a dem-
ocratic transition, such as Venezuela, Nicaragua, and—most recently—Bolivia.
At present, DPLF’s programs are: (i) Judicial independence, which includes
initiatives on the role of district attorneys in a democracy, transparent and meri-
tocratic elections of high judicial authorities, elements of a democratic public se-
curity policy, and accountability and reparations for serious violations of human
rights; (ii) Impunity and Serious Human Rights Violations, where DPLF looks in
more detail at standards relevant for the reconstruction of judicial institutions
in countries in transition and promote the exchange of experiences in order to
address these challenges; (iii) Human rights and natural resources, where DPLF
promotes the use of international law to defend the territory and natural re-
sources of Indigenous peoples and rural communities; and (iv) Strengthening the
IAHRS, where DPLF monitors and promotes reforms and transparent and par-
ticipatory processes in the nomination and selection of members of the IACHR
and IACtHR as well as other inter-American authorities.
The initiatives of DPLF deal with social phenomena with significance for the
enforcement of the rule of law and human rights in matters where it feels that
international law can make relevant contributions to the processes of political
deliberation, the design of public policy, and the imparting of justice. Although
32 “In time, our experience in El Salvador caused us to reflect upon the situation in other countries
in the region and to understand that while the case of El Salvador was unique in many aspects, other
countries in our region have suffered, to a greater or lesser extent, the effects of justice administra-
tion systems that are archaic, ineffective, oppressive, corrupt, and largely undemocratic, and which
needed to be reformed . . .”—translation of the words of Thomas Buergenthal upon the formal inau-
guration of the activities of the DPLF. In Reformas a la Justicia Penal en las Américas (Fundacion para
el Debido Proceso Legal 1999).
DPLF does not litigate before the IAHRS in the sense of submitting petitions
or requests for protection measures directly to IAHRS organs, it is a user of its
various mechanisms of monitoring and promotion.33 Through the compilation
of specialist studies, training activities, the observation of criminal trials,34 and
amici curiae35 presentations to the organs of the IAHRS and domestic tribunals,
DPLF hopes to encourage judges in the region to use inter-American standards
in their decisions and to engage with the IACtHR and IACHR to develop new
standards through their pronouncements. The mechanisms for monitoring and
promotion, which include thematic hearings at the IACHR, allow DPLF to make
the problems with which it is dealing visible at national and regional level and to
require the States to comply with inter-American rules and standards in a multi-
lateral and public forum.
In addition to case law, the advisory opinions, country reports, and thematic
reports of the IACHR, which generally address more current and regional problems,
are particularly useful for the work of DPLF. For this reason, the standards included
in this document and those arising from the case system allow DPLF to disseminate
and raise awareness of the Inter-American standards that are vital to its work. In this
sense, DPLF has coordinated efforts with organs of the IAHRS and has compiled
summary infographics of judgments,36 advisory opinions, and instrumental the-
matic reports with the aim of bringing about a greater impact.
Another aspect of DPLF’s work relates to the production of toolkits and
reports that aim to more solidly define inter-American standards. By nature,
these standards tend to establish general obligations for the States and lack the
required effective force for direct implementation on the part of State operators.
In the different programs and lines of work of DPLF, it has attempted to pro-
vide the various State organs and agents with clearer guidelines on how they
should apply inter-American standards.37 In order to contribute to the improved
33 The DPLF has advised civil society organizations on the formulation of petitions and requests
for precautionary measures before the IACHR, but, due to institutional policy, the DPLF has not
directly pursued or invoked the system of petitions and cases or the protection mechanisms made
available by the IACHR and the IACtHR (precautionary and provisional measures, respectively).
34 For an example of the observation of an archetypal criminal trial by the DPLF, see
Daniel Cerqueira and Katya Salazar, La Sentencia sobre los Hechos de Violencia en la Curva del
Diablo: comentarios a la luz de los estándares internacionales de derechos humanos (March 7, 2017),
<http://www.dplf.org/sites/default/files/bagua_v2.pdf> (accessed February 5, 2022).
35 See the website of the DPLF, page on amicus curiae briefs presented in recent years, available at
<http://www.dplf.org/en/resources/amicus_curiae> (accessed February 5, 2022).

36 DPLF, Folleto sobre la Sentencia de la Corte IDH en el Caso Ruano Torres y otros v. El Salvador,
<http://www.dplf.org/sites/default/files/folleto_agapito_web_v1.pdf> (accessed February 5, 2022).

37 With regard to the inter-American standards on the right to prior, free, and informed consul-
tation, for example, whereas the first regional report of DPLF aimed to state the applicable inter-
American right and compare it with the regulatory framework of four Andean countries, the other
publications on the matter deal with certain operational problems in the implementation of these
standards on the part of the governments; problems derived from inadequate consultation processes
and more concrete discussions on the pros and cons of adopting a regulatory framework with a
awareness of and use of inter-American standards, DPLF carries out applied re-
search and disseminates it in shorter, more accessible versions through its in-
stitutional blog38 and social networks. DPLF shares the latest developments of
the IAHRS on the topics it works on and, if the case so deserves, it formulates
opinions on current topics through press releases or public letters.
Having explained the institutional mission of DPLF and its way of working as
a user of the IAHRS, we will now look at two examples of coordinated advocacy
with partner organizations that aim at bringing about new narratives and the
development of new standards on the part of the IACHR with regard to certain
social phenomena and patterns of behavior by public and private actors that en-
danger the enjoyment of human rights in the region.
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
Since the creation of a program dedicated to the study of the impact of extractive
industries on human rights, in 2010, DPLF39 has worked with CSOs, collectives,
and other social movements that work with victims of human rights violations
resulting from the intensive extraction of natural resources. A significant number
general scope as a model of the implementation of the right to prior consultation. Several of these
reports were compiled along with other national and local organizations, allowing us to analyze the
use and knowledge of the Inter-American standards in the light of the demands and needs of local
groups. For more information about the publications of DPLF on the right to prior, free, and in-
formed consultation, see <http://www.dplf.org/en/resources-topics/right-consultation> (accessed
February 5, 2022).
38 Entitled “Justicia en las Américas,” this Spanish-language blog (BlogDPLF) is provided by the
Due Process of Law Foundation as a space where staff and members of the board of directors of the
organization, along with other persons and organizations dedicated to the enforcement of human
rights in the Americas, can collaborate. The blog periodically publishes information and analyzes
the main debates and events relating to the promotion of the rule of law, human rights, judicial inde-
pendence, and the consolidation of democracy in Latin American. One important part of the articles
published on the blog comprises analyses of decisions of the organs of the IAHRS and of draft laws or
judicial decisions that are relevant because they conflict with or make progress toward the implemen-
tation of the inter-American standards. For more information on the BlogDPLF, see <https://dplfb
log.com/> (accessed February 5, 2022).
39 Some of the text contained in this section is an adaptation of a chapter originally published in
a manual on holding States accountable for extraterritorial violations of human rights. See FIAN
International and ETOS Consortium, For Human Rights Beyond Borders: Handbook on How to Hold
States Accountable for Extraterritorial Violations (2017), 42–43, <https://www.etoconsortium.org/
nc/en/main-navigation/library/documents/detail/?tx_drblob_pi1%5BdownloadUid%5D=204>
of these violations occur in contexts where transnational mining companies act

with the political, diplomatic, financial, or other support from the countries
where their parent company is registered or domiciled, so of their country of
origin.
In Latin America, mining companies that are headquartered or registered
in Canada and mining companies from other countries that are listed on the
Toronto Stock Exchange account for more than 70 percent of all investment in
mining projects from Mexico to Chile. In several of these projects, there have
been reports of disputes over the lands of Indigenous and peasant communities,
the criminalization of socio-environmental advocates, and a growing number of
murders of people who oppose the presence of mining activities in their lands.
This reality is directly linked to the signing of investment and free trade
agreements between Canada and certain countries in the region that in-
clude clauses facilitating mining concessions and that weaken socioeconomic
safeguards. Particularly under the Stephen Harper administration (2006–2015),
Canadian cooperation has been used as an agent for promoting Canadian
companies’ foreign investment in countries with which Canada has signed co-
operation agreements.40 Further, financial subsidies, fiscal extensions, and dip-
lomatic support abroad have been expanded for Canadian mining companies
without any proportionate advances in the creation of an institutional frame-
work for accountability for human rights violations committed or tolerated by
these companies in third countries.41
In this context, since 2011, DPLF has participated in initiatives with other
CSOs, academic bodies, and social movements to increase visibility for the in-
ternational responsibility of Canada. Based on the conclusion that the general
standards of the IAHRS relating to the obligation to respect and protect human
rights in the light of actions of private individuals are applicable to the States
of origin of transnational companies,42 DPLF coordinated a series of advocacy
activities with the aim of causing the IACHR to issue specific pronouncements
on the extraterritorial responsibility of the countries of origin of companies in-
volved in violations of human rights.
In October 2013, a group of CSOs from various Latin American companies
participated in a thematic hearing before the IACHR entitled Situación de los
40 See MiningWatch Canada, New Federally Funded Academic Institute a Tool to Support Mining
Industry (2014) at <http://www.miningwatch.ca/news/new-federally-funded-academic-institute-

tool-su-pport-mining-industry> (accessed February 5, 2022).
41 See, e.g., <http://www.dplf.org/en/news/over-180-organizations-urge-canadian-prime-minis
ter-promote-effective-regulation-canadian> (accessed February 5, 2022).

42 Daniel Cerqueira, “The Attribution of Extraterritorial Liability for the Acts of Private Parties
in the Inter-American System: Contributions to the debate on corporations and human rights”
(BlogDPLF, October 1, 2015), <https://dplfblog.com/2015/10/14/the-attribution-of-extraterritor
ial-liability-for-the-acts-of-private-parties-in-the-inter-american-system-contributions-to-the-deb
ate-on-corporations-and-human-right/> (accessed February 5, 2022).
derechos humanos de las personas afectadas por la minería en las Américas y la

responsabilidad de los Estados huéspedes y de origen de las empresas (“Human
rights situation of persons affected by mining in the Americas and the re-
sponsibility of the host states and countries of origin of the companies”).43 In
April 2014, after three years of research, organizations from Chile, Colombia,
Honduras, Mexico, and Peru, along with academic centers from Canada and
the United States, published a report on the impact of Canadian mining in Latin
America and the responsibility of Canada.44 The report examines twenty-two
mining projects located in nine countries in the region and identifies a pattern of
human rights violations and their underlying causes, above all in Canada, as the
country of origin of the companies involved in the abuses.
The report was presented to the IACHR in April 2014 and played a part in
the latter’s statement in its end-of-session press release about “emerging issues
such as corporate responsibility as regards the impact of extractive industries on
the observance of human rights, especially the impact on certain groups such
as Afro-descendants and indigenous peoples.”45 Eight months later, twenty-nine
CSOs and Canadian academic entities participated in another thematic hearing
before the IACHR dealing expressly with the role of Canada in abuses committed
by mining companies in Latin America.46 In the press release published a few
days after this hearing, the IACHR urged the States to “adopt measures to pre-
vent the multiple human rights violations that can result from the implementa-
tion of development projects, both in countries in which the projects are located
as well as in the corporations’ home countries, such as Canada.”47
During the IACHR’s 154th session, in March 2015, the extraterritorial
obligations of the States were again addressed in a hearing coordinated by
the DPLF on “Corporations, Human Rights, and Prior Consultation in the
Americas.”48 At the end of the session, the IACHR stressed that it is “essential
43 For more information about the hearing, see <dplf.org/es/news/nota-de-prensa-mineria-y-
derechos-humanos-en-america-latina-los-estados-de-origen-de-las> (accessed February 5, 2022).

44 Working Group on Mining and Human Rights in Latin America, “The impact of Canadian
Mining in Latin America and Canada’s Responsibility. Executive Summary of the Report submitted
to the Inter-American Commission on Human Rights” (2014), <http://www.dplf.org/sites/default/
files/report_canadian_mining_executive_summary.pdf> (accessed February 5, 2022).
45 IACHR Wraps Up its 150th Session. Press release (Washington DC, April 4, 2014), <https://www.
oas.org/en/iachr/media_center/PReleases/2014/035.asp> (accessed February 5, 2022).

46 Available at <https://www.youtube.com/watch?v=OWYue8FP9ZY&feature=youtu.be>
(accessed February 5, 2022). For a more detailed explanation of the effects of this hearing in Canada,
see Shin Imai and Natalie Bolton, “El gobierno de Canadá no hace lo suficiente para abordar los
problemas de las empresas mineras canadienses en América” [2015] 20 Aportes DPLF 24–26, <https://
www.dplf.org/sites/default/files/aportes2020_web_final_0.pdf> (accessed February 5, 2022).
47 IACHR Wraps Up its 153rd Session. Press release (Washington DC, November 7, 2014), >https://
www.oas.org/en/iachr/media_center/PReleases/2014/131.asp> (accessed February 5, 2022).

48 The video of the hearing is available at <https://www.youtube.com/watch?v=wFqc7ccS7Mw>

that any development project is carried out in keeping with the human rights
standards of the Inter-American system.”49
After four years of research, exchange of experiences and information, advocacy,
and lobbying aimed at placing the extraterritorial obligations of the States on the
agenda of the IAHRS,50 in April 2016 the IACHR published its thematic report,
Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human
Rights Protection in the Context of Extraction, Exploitation, and Development
Activities.51 One of the sections of this report deals with the obligation of the coun-
tries of origin of the companies to harmonize their domestic laws and public policies
in order to prevent and mitigate human rights violations and to offer reparations
for such violations. For the first time, the IACHR formulated specific rules on the
obligations of the countries of origin of the companies in relation to human rights
abuses committed abroad. The report finished with a list of recommendations for
States to monitor, control, and supervise the activities carried out in other countries
by companies headquartered or registered in their jurisdiction.52
With the aim of increasing the impact of the said report and disseminating its
content, DPLF published an infographic summary in the four official languages
of the Organization of American States (OAS), allowing more legal operators to
become familiar with key standards concerning the obligations of the countries
of origin of companies.53
The publication of the mentioned thematic report on the part of the IACHR
was only a first step toward the incorporation of the extraterritorial obligation of
the countries of origin of companies into the IAHRS’s agenda, inspiring other fu-
ture pronouncements of the Inter-American Commission itself and the approach
of the IACtHR in its Advisory Opinion 23/17,54 entitled “The Environment and
49 IACHR Wraps Up its 154th Session. Press release (Washington DC, March 27, 2015), <https://
www.oas.org/en/iachr/media_center/PReleases/2015/037.asp> (accessed February 5, 2022).

50 For more information on the impact of the advocacy relating to the extraterritorial obligations
of Canada in Canada and relating to the impact of Canadian mining in third countries, see Shin Imai,
Canadian Government Promises Stronger Monitoring of Canadian Companies Operating Abroad,
January 30, 2018, <https://dplfblog.com/2018/01/30/canadian-government-promises-stronger-
monitoring-of-canadian-companies-operating-abroad/> (accessed February 5, 2022).
51 IACHR, “Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human
Rights Protection in the Context of Extraction, Exploitation, and Development Activities,” OAS/
Ser.L/V/II. Doc. 47/15, December 31, 2015, <https://www.oas.org/en/iachr/reports/pdfs/Extractiv
eIndustries2016.pdf> (accessed February 5, 2022).
52 Ibid., 185. For a more detailed evaluation of the report of the IACHR, see D. Cerqueira and
C. Blanco, IACHR Takes Important Step in the Debate on Extraterritorial Responsibility and States’
Obligations regarding Extractive Companies (May 2016), <https://dplfblog.com/2016/05/11/iachr-
takes-important-step-in-the-debate-on-extraterritorial-responsibility-and-states-obligations-re-
garding-extractive-companies/> (accessed February 5, 2022).
53 DPLF, “Infographic summary of the report of the IACHR on ‘Indigenous Peoples, Afro-
Descendent Communities, and Natural Resources: Human Rights Protection in the Context of
Extraction, Exploitation, and Development Activities,’ ” (March 30, 2017), <http://www.dplf.org/
sites/default/files/ddhh_extractivas_digital_en_v1_0.pdf> (accessed February 5, 2022).
54 IACtHR, “The Environment and Human Rights,” OC 23/17 of November 15, 2017, Ser. A No. 23.
Human Rights.” Adopted on November 15, 2017, this advisory opinion broadens
the parameters developed by the IACHR in the aforementioned report, setting
out clearer principles and rules on the attribution of State responsibility in the
light of actions by private entities and the obligation of the countries of origin
of companies that commit environmental harm abroad. Further, it establishes
parameters for compliance with prevention and guarantee obligations relating
to cross-border damage and enshrines—for the first time in the context of the
IAHRS—the principles of precaution and prevention in relation to environ-
mental damage. In accordance with these principles, the States must act if there
are plausible indicators that an activity might bring about irreversible damage to
the environment, even in the absence of scientific certainty.
The Inter-American Court of Human Rights clarified the circumstances in
which the conduct of a State constitutes an exercise of jurisdiction, stressing that
a State is internationally responsible for the violation of the right to a healthy en-
vironment and other associated rights, even if the environmental damage takes
place on the territory of another country, if the State authorities concerned do
not meet their prevention and guarantee obligations in relation to companies
headquartered or domiciled in their jurisdiction.55
Again, due to the importance of the standards on the responsibility of coun-
tries of origin of companies contained in the advisory opinion, DPLF worked
with the IACtHR and partner organizations to coordinate the compilation of an
infographic on the fundamental principles and conclusions of the IACtHR’s pro-
nouncement.56 This summary was published in the four official languages of the
OAS and facilitated access to the content of the advisory opinion not only by
users of the IAHRS but also by operators of law called upon to decide on disputes
or to adopt decisions in the diverse spheres of State action in their respective
countries.
Finally, in November 2019, the IACHR published the report “Business and
Human Rights: Inter- American Standards,” which expands the parameters
relating to the obligations of countries of origin of companies beyond the con-
text of extractive activities and environmental damage. Although the standards
contained in this report are largely based on pronouncements of the United
Nations’ Human Rights Council, Special Rapporteurs, independent experts, and
thematic committees, this is the most detailed document of the IAHRS in which
parameters of State action toward the corporate sector are set out.57
55 Ibid., para. 97.

56 DPLF, “Infographic summary of Advisory Opinion 23/17 on the Environment and Human
Rights” (September 2018), <http://www.dplf.org/sites/default/files/oc23_english.pdf> (accessed
February 5, 2022).
57 IACHR, “Thematic Report on “Business and Human Rights: Inter-American Standards,” OAS/
Ser.L/V/II, November 1, 2019.

4.2. Corruption and Human Rights
The connection between corruption and human rights in the narrative of

the organs of the IAHRS is evolving, but the IAHRS organs have focused on
identifying corruption as a direct or indirect cause of human rights violations
that are not necessarily planned or foreseen. Nevertheless, the current reality in
the region shows a much more complex scenario in which violations of human
rights can be a key part of strategies designed by criminal networks comprising
State and private agents who wish to fully or partly co-opt State institutional
entities in order to take advantage of their resources to benefit the criminal
network. To achieve their aims, these networks use increasingly deploying so-
phisticated strategies which, in many cases, include committing human rights
violations in order to facilitate their objectives and ensure the impunity of the
network.
In this context, the co-optation of justice institutions stands out. This can take
the form of undue interference in and manipulation of selection processes—
especially those of the highest authorities—in order to ensure the election of per-
sons close to the criminal network, thereby ensuring impunity for illegal actions.
This symbiosis between State institutional entities controlled by de facto powers
(and therefore corrupt institutions) and manipulated judicial elections (which
violate the inter-American standards governing them) also occurs with other
human rights violations. Let’s not forget paradigmatic cases such as the murder
of the Indigenous leader and environmental activist Berta Cáceres in Honduras,
whose activism brought to light a network of corruption operating in Honduras
that then planned her murder in order to avoid the visibility caused by her
demands and to ensure success in their activities with total impunity. Another
case concerned the murder of defenders of territory in the Peruvian rainforest,
whose defensive action and visibility work were obstacles to the lucrative illegal
logging industry. There are also thousands of cases of missing persons in Mexico,
many of them committed through organized crime networks, but many others
linked to the activities of criminal networks fed by the authorities.
These are the new realities that have caused us to include a much broader con-
textual analysis in our work, including the role of large-scale corruption and the
control of institutions by de facto powers, with the aim of better understanding
the current patterns and trends in the violations of human rights committed on
the continent. These aspects have also led us to ask ourselves if and how we could
contribute to the fight against corruption through the promotion of human
rights and the international justice systems. Was it possible to identify a “human
rights perspective” in the fight against major corruption? Were new standards
necessary for this objective, or were the existing standards sufficient? How can
the various mechanisms of the IAHRS be used in this area?
For DPLF, this new type of analysis involves the tasks of learning and
deepening knowledge of concepts, since at the international level, the fight
against corruption and the defense of human rights have followed separate
paths, with different audiences, narratives, and strategies, and attempts to con-
nect them are relatively recent.
Within the United Nations, the treaty bodies and special procedures have
indicated that when corruption is widespread, the States cannot meet their
obligations relating to human rights.58 Similarly, the Special Rapporteur of the
United Nations on the Independence of Judges and Lawyers, in a report on cor-
ruption and judicial independence presented in 2017 to the UN Human Rights
Council, indicated that the UN Convention against Corruption “should be also
be seen as a fundamental international instrument for the protection of human
rights, and it therefore warrants continued attention from the relevant compe-
tent bodies,” since corruption has a devastating effect on the justice systems as a
whole.59
At the inter-American level, in March 1996, the General Assembly of the OAS
adopted the Inter-American Convention against Corruption, whose implemen-
tation is based on a process of scrutiny exercised by the States parties themselves,
but neither the text nor the documents produced by the OAS Secretariat contain
an approach to the impact of corruption upon the enjoyment of human rights
in the region.60 The narrative in the IAHRS on the links between human rights
and corruption has developed primarily from the momentum arising from civil
society organizations, which has been received with interest and concern by the
IACHR. DPLF has actively participated in this process in the past years.
The IACHR made the relationship between corruption and human rights
evident with the approval of Resolution 1/17 on Human Rights and the Fight
against Impunity and Corruption, in which it indicated that “the establishment
of effective mechanisms to eradicate corruption is an urgent obligation in order
to achieve effective access to an independent and impartial justice and to guar-
antee human rights.” One year later, it broadened its criteria with Resolution 1/
18 on Corruption and Human Rights, stating that corruption is a complex phe-
nomenon that often establishes structures that capture State entities, through
different criminal schemes, and affects human rights in their entirety—civil,
58 Committee on Economic, Social and Cultural Rights, “Consideration of reports submitted
by States Parties under Articles 16 and 17 of the Covenant, Concluding Observations, Republic of
Moldova,” E/C.12/1/ADD.91, December 12, 2003, para. 12; and Committee on Rights of the Child,
“Consideration of reports submitted by States Parties under Article 44 of the Convention, Concluding
Observations, The Republic of the Congo,” CRC/C/COG/CO/1, October 20, 2006, para. 14.
59 Human Rights Council, “Report of the Special Rapporteur on the Independence of Judges and
Lawyers,” A/72/140, July 25, 2017.

60 OAS, “Inter-American Convention against Corruption” (March 29, 1996), <http://www.oas.
org/en/sla/dil/docs/inter_american_treaties_B-58_against_Corruption.pdf> (accessed February

5, 2022).
political, economic, social, cultural, and environmental—as well as the right to

development, and weakens governance and democratic institutions, promotes
impunity, undermines the rule of law, and exacerbates inequality. In this reso-
lution, the IACHR emphasizes certain fundamental concepts and formulates
recommendations that address the phenomenon with a human rights focus.
Subsequently, the IACHR addressed the topic in several country and thematic
reports, stressing corruption as an aggravating factor in situations of exclusion
and discrimination and as a direct or indirect cause of human rights violations—
in particular ESCER, but also the right to access to justice and freedom of expres-
sion in cases where options for reporting acts of corruption are limited.61 In the
same way, in its most recent country reports on the situation of human rights in
Honduras, Guatemala, and Mexico, the IACHR identified corruption as one of
the factors having a bearing on impunity in cases of human rights violations in
these countries.
In its turn, in the case of Escobar v. Guatemala, of 2018, the IACtHR stressed
the negative consequences of corruption and the obstacles that it poses for the
effective enjoyment of human rights along with the fact that the corruption of
State authorities or private providers of public services affects vulnerable groups
in a particular way.62 The IACtHR indicated in its judgment that the impact of
corruption (in this case, a network of illegal adoptions) reduces the confidence
of the people in the government and, in time, in democratic order and the rule
of law.63
The strategy established by DPLF for responding to initial questions and
promoting a greater involvement on the part of the IAHRS in this field in-
cluded an initial analysis, discussions, and the exchange of experience and in-
formation with other CSOs in the region with the same concerns, as well as
disseminating information and lobbying the IACHR. These actions influenced
the growing interest of the IACHR in the further development of the standards
included in Resolutions 1/17 and 1/18 and, in line with the conclusions and
recommendations of the heads of State of the continent at the 2018 Summit of
the Americas,64 in making a significant contribution in this field.
In this context, DPLF participated in various preparation meetings for the
thematic report on the matter, during which it conveyed many of the concerns
of its partners. In December 2017, DPLF participated in a closed discussion
on corruption and human rights organized by the IACHR and the Office of
the UN High Commissioner for Human Rights during the First Forum of the
61 IACHR, “Democratic Institutions, the Rule of Law and Human Rights in Venezuela,” OAS/
Ser.L/V/II. December 31, 2017, para. 146.

62 Case of Ramírez Escobar et al. v. Guatemala [2018] IACtHR, Ser. C No. 351, para. 241.
64 2018 Summit of the Americas, focusing on democratic governance against corruption.
Inter-American Human Rights System in Washington, DC.65 Subsequently, in

March 2018, it participated in a consultation meeting in Colombia during the
167th Extraordinary Period of Sessions in the presence of other experts on the
matter.66 In December 2018, DPLF organized a meeting in Washington, DC,
with experts and colleagues from the region in order to discuss the advances of
the IAHRS in this field and to make certain recommendations, which were also
shared with the IACHR.
When the IACHR agreed to formulate a report on corruption and human
rights, DPLF expressly supported this initiative and, in collaboration with
groups with which it had been pondering this matter,67 it organized meetings in
six cities in the Americas with the aim of ensuring that the technical team of the
IACHR, which was in charge of preparing the report, could gather relevant in-
formation. These meetings were attended by at least 150 organizations and took
place in Argentina, Chile, Colombia, Peru, El Salvador, and Mexico.68
Subsequently, DPLF requested a IACHR thematic hearing on “Corruption and
Human Rights: The role of justice systems in Latin America,” which took place in
Sucre, Bolivia, on February 15, 2019, with twenty-one organizations and experts
in the field participating in the initiative.69 During this hearing, DPLF provided
relevant information on at least ten countries in the region and the role of their
justice systems both as protagonists in acts of corruption and as the entities re-
sponsible for the criminal prosecution of this crime. Also, and more importantly,
DPLF demonstrated regional patterns and made a series of recommendations
for regional implementation.
At the same time, DPLF maintained a constant dialogue with its partners
in the region, and whilst awaiting the IACHR thematic report, it established a
strategy for the dissemination and—above all—the implementation of the new
standards that the report would contain. The report was finally published on
December 31, 2019, and DPLF planned presentations during 2020 in various
capitals of the region. The report contains important advances, positioning the
IAHRS as a relevant actor in the efforts of States and civil society to confront
corruption and the violations of human rights that are usually derived from this
phenomenon.
65 IACHR, “Annual Report 2017,” Chapter 1, at 43, <https://www.oas.org/en/iachr/docs/annual/
2017/TOC.asp> (accessed February 5, 2022).

66 Ibid.
67 The events were mainly organized in collaboration with the Rule of Law Program of the
Konrad Adenauer Foundation (KAS), the Latin American and Caribbean Network for Democracy
(REDLAD), and Fundar.
68 See IACHR, “Report on Corruption and Human Rights” (December 2019), 14.
69 See <https://www.youtube.com/watch?v=ekAnMhacV3s&list=PL5QlapyOGhXuSrrN5A
MHWWfm36AsMzrq0&index=14> and <http://www.oea.org/en/iachr/media_center/PReleases/
2019/038A-EN.pdf> (accessed February 5, 2022).
Again, with the aim of contributing to the socialization of the content of the
report and promoting the addressing of the phenomenon of serious corruption
from the perspective of the human rights obligations of States, DPLF published
an infographic summary on the main findings and conclusions relating to the
justice systems.70
The ideas expressed in this chapter intend to support the following hypoth-
esis which, to a certain extent, guides the strategies, working methods, and
initiatives of DPLF as a user organization of the Inter-American System. Despite
the low degree of compliance with decisions issued by its organs, the standards
of the IAHRS have guided the actions of State agents and operators of the law
throughout the continent. Rather than proposing a methodology for proving this
hypothesis, this chapter attempts to point out the way in which the DPLF and its
partner organizations have tried to influence the development and dissemina-
tion of certain inter-American standards. Naturally, the experiences described
here may well be different from those of civil society organizations engaged in
activities of litigation and activism with a local or national scope of action or with
institutional missions and strategies that differ from DPLF’s own.
The use of two specific examples of the development of standards on the part
of the IAHRS in order to consolidate the stated conceptual hypothesis is not in-
tended to be an inductive demonstration in which the general premises can be
shown through specific premises. Indeed, the examples cited in the last section
of this chapter aim to support reflections on the role of civil society in the cre-
ation of standards in two processes of advocacy and lobbying in which DPLF
was directly involved. The conclusion relating to the impact of the standards re-
cently developed by the organs of the IAHRS requires a more specific evaluation
of the way State actors and operators of the law on a domestic scale are shaping
their actions on the basis of the standards, rules, and principles derived from the
pronouncements of the mentioned supranational organs.
Although this chapter could be read as a self-referential exercise, our inten-
tion is to justify the premise that the impact of the IAHRS is directly correlated
to the capability of the organs of the IAHRS to develop standards that re-
spond to the demands of CSOs, as well as to their ability to ensure that these
standards are better known and applied by operators of law and State agents at
70 DPLF, “Independencia judicial y corrupción: Síntesis de los principales contenidos sobre
justicia del informe ‘Corrupción y Derechos Humanos’ de la CIDH,” <http://www.dplf.org/sites/defa

ult/files/info_corrupcion_digital_vf.pdf> (accessed February 5, 2022).
the national level. In the examples contained in this chapter, the development of
new standards transcends the creation of legal rules in matters upon which the
IAHRS has not previously made pronouncements, requiring the incorporation
of new narratives about social phenomena which, in themselves, do not imply a
violation of human rights but which nonetheless may be affecting the enjoyment
of human rights and the normal functioning of the rule of law in the region.
III.6
Activism Strategies Involving the
Inter-American System
Reflections for the Field of Action and Perspectives from
National Human Rights Organizations
By Gabriela Kletzel
1. Introduction
The achievements of the Inter-American Human Rights System (IAHRS) are

wide- ranging, diverse, and profound. Throughout its history, the IAHRS’s
mechanisms have taken an increasingly larger and unerring role in the fight
against impunity for crimes against humanity in the context of civil–military
dictatorships and armed conflicts. These mechanisms have also left their mark
on efforts to defend the rights of groups who have historically been victims of
discrimination. With the advent of democracy in the region, the IAHRS’s agenda
and actions have expanded to include work on the structural patterns of rights
violations.1
In order to analyze the scope of the Inter-American System, it is useful to ex-
amine the dynamics between its different bodies and principal actors, specifically
regional States, victims of violations that require intervention, and social organ-
izations that channel the demands of victims. For the purposes of this chapter,
I will focus on the work done by national human rights organizations. By under-
standing the potential of the Inter-American System, the organizations have not
limited their actions to bringing cases of human rights violations to light but—in
addition to providing assistance for specific situations that require redress—have
also deployed diverse strategies to maximize the impact of the IAHRS and, there-
fore, have been a catalyst for structural transformations. At the same time, they
1 See, in this respect, Victor Abramovich, “De las violaciones masivas a los patrones
estructurales: Nuevos enfoques y clásicas tensiones en el sistema interamericano de derechos

humanos” [2009] 6 Sur 7–37.
Gabriela Kletzel, Activism Strategies Involving the Inter-American System In: The Impact of the Inter-American Human
Rights System. Edited by: Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales
Antoniazzi, Oxford University Press. © Gabriela Kletzel 2024. DOI: 10.1093/oso/9780197744161.003.0032
626 Gabriela Kletzel
have also played a key role in aspects of the Inter-American System’s substan-
tive and institutional development by challenging and expanding the agenda of
its bodies, safeguarding its composition, and generating and enhancing working
tools, among other actions. To shed light on these roles, I will provide concrete
examples of actors and interventions that have enabled material transformations
in the observance of rights within States and, from an institutional perspective,
the System itself.
To start, I think it is relevant to show that actions vis-à-vis the IAHRS ought to
be considered as comprehensive strategies to fight impunity, with both national
and international dimensions. I will support this claim by looking at the work
done by historic organizations in Argentina that have developed themselves into
successful interlocutors with the Inter-American Commission on Human Rights
(IACHR) and the Inter-American Court of Human Rights (IACtHR). Secondly,
I will discuss some of the contributions developed by domestic social actors from
different countries in the region to bolster the actions of the IAHRS in institu-
tional and substantive terms. I will prioritize recent strategies—based on their
legitimacy and national experience—that social organizations have used to give
momentum to the creation of intervention mechanisms in real time, to accom-
plish a proper integration of the System’s bodies, and to push for a more complex
account of the matters covered by the System’s thematic agenda.
2. The Inter-American System as One Piece among More

Complex Strategies
The logic behind actions taken before international bodies that protect and
promote rights will be, without question, a determining factor in strategy-
building around preventing or redressing human rights violations. The
possibilities available to an actor putting forward a claim, the type of situations
requiring intervention, and the specific response dynamic will impact the po-
tential role attributed to the international authority and the way its effects are
assessed.
The variety of competences held by the IAHRS, aside from assistance in cases
that have not received an adequate response at the local level, allows its bodies
to be seen as elements in a much larger machinery in the fight against impunity,
especially in light of the structural deficiencies of many States in the region. In
these scenarios, the actions of the IAHRS complement and, in many cases, rein-
force the catalog of initiatives undertaken domestically and are in keeping with
the logic of comprehensive strategy that must not be lost along the way. The per-
sistent appeals to the IAHRS by human rights organizations seeking Memory,
Truth and Justice in Argentina exemplify this particular dynamic.
Activism Strategies Involving the Inter-American System 627
Seeking justice for crimes against humanity committed during Argentina’s

last dictatorship has required the use of diverse tools and IAHRS standards in
an ongoing and versatile legal battle that the country’s historic human rights
movement has sustained for decades. Within the framework of a claim that has
managed to involve most of society and the political system, human rights or-
ganizations representing victims of State terrorism have used multiple strategies
vis-à-vis the IAHRS to legitimize their struggle, keep their claims on the public
agenda, develop new tools to reveal the truth, and move forward decidedly on
the road to justice. At the same time, these efforts have fostered the development
of standards and tools that have later benefited other struggles.
The in loco visit by the IACHR to Argentina in 1979,2 and its 1980 Country
Report in,3 gave visibility and substance to the reports by the families of
victims of systematic practices of mass arbitrary detentions, torture, and forced
disappearances that characterized the extermination plan of the de facto military
government in power between 1976 and 1983. In view of that precedent, human
rights organizations have deployed a variety of actions vis-à-vis the IAHRS that
have proven to be key factors at different moments in the fight against impunity.
With the return to democracy in 1983, both the work conducted by the
National Commission on the Disappearance of Persons (Comisión Nacional
sobre la Desaparición de Personas, or CONADEP)4 and the details of the Trial
of the Military Juntas5 set out a path for truth and justice, which was abruptly
interrupted with the passage of the Due Obedience (Obediencia debida) and
Full Stop (Punto final) laws, as well as the presidential pardons of 1989. The Due
Obedience Law created an irrefutable presumption that military personnel who
2 In September 2019, the IACHR visited Argentina to commemorate the fortieth anniversary of its
historic visit in 1979. See, in this respect, https://www.oas.org/en/cidh/prensa/comunicados/2019/

226.asp (accessed November 13, 2021).
3 IACHR, “Country Report on the human rights situation in Argentina,” April 11, 1989, https://
www.cidh.org/countryrep/Argentina80sp/indice.htm (accessed November 13, 2021).

4 After the restoration of democracy, President Raúl Alfonsín formed the National Commission
on the Disappearance of Persons (CONADEP) to investigate incidents related to the disappearance

of persons during the civil–military dictatorship. CONADEP was presided over by writer Ernesto
Sábato and twelve recognized figures from different areas of national life. CONADEP called upon
dozens of volunteers and persons linked to the human rights struggle who spent just over nine
months traveling across most of the country as part of their work to compile, organize, and establish
a hierarchy of data on human rights violations. CONADEP produced a final report entitled “Nunca
Más” (“Never Again”). More information at https://www.argentina.gob.ar/anm/oral/trabajadores-
conadep (accessed November 13, 2021).
5 The accused were members of the three military juntas: Jorge Rafael Videla, Emilio Eduardo
Massera, and Orlando Ramón Agosti (first military junta, 1976–1980); Roberto Eduardo Viola,
Armando Lambruschini, and Omar Domingo Rubens Graffigna (second military junta, 1980–1981);
and Leopoldo Fortunato Galtieri, Jorge Isaac Anaya, and Basilio Lami Dozo (third military junta,
1981–1982). On December 9, 1985, the Federal Court issued its ruling confirming the existence of a
systematic extermination plan by the military dictatorship that usurped power on March 24, 1976.
In this regard, more details at https://www.telam.com.ar/notas/201512/129500-juicio-a-las-juntas-
sentencia.html (accessed November 13, 2021).
had committed crimes had acted in due obedience, thus exempting them from
criminal responsibility; the Full Stop Law set a term of sixty days for the termi-
nation of criminal legal actions; and the presidential pardons reversed sentences
and trial procedures for persons accused of human rights violations who had not
benefited from said laws.
This scenario led the families of victims—of whom many by then had set up
a diverse range of human rights organizations—to intensify their strategies to
fight impunity, resorting once again to multiple political and legal actions at the
national and international level. This is the context within which the annual mass
marches take place every March 24, marking the anniversary of the 1976 coup
d’état, the multitudinous public denouncements (escraches) of “repressors at lib-
erty,” the commencement of trials in European countries for crimes committed
against their own citizens, and the proceedings under universal jurisdiction by
Spain’s National High Court, as well as different initiatives brought before the
IAHRS and the Universal Human Rights System.6
Among other actions, they submitted multiple petitions to the IACHR
denouncing those laws and decrees as violations of the American Convention
on Human Rights (ACHR) insofar as they obstructed the progress of criminal
proceedings on grave human rights violations that occurred during the de facto
government. By virtue of the material nature of the claims, as well as the legal na-
ture of the issue, the Commission gave its decision on the entire set of petitions
in its Report No. 28/92. In this report, the Commission ruled that the enactment
of said laws and decrees had the effect of terminating any pending trials against
people responsible for past human rights violations. The Commission concluded
that this constituted a violation of the right to judicial guarantees, judicial pro-
tection, and the obligation to investigate, thus rendering said laws incompatible
with the ACHR and recommended that Argentina adopt the “necessary meas-
ures to clarify the facts and individually hold responsible those who committed
human rights violations during the last military dictatorship.”7
Thus, after the Commission’s visit to Argentina in 1979, domestic claims for
justice were once again supported by international mechanisms, to the point
that said laws and decrees were determined to be incompatible with Argentina’s
obligations within the framework of the American Convention. Nevertheless,
given the limitations imposed by the political context, this international ruling
did not result in the immediate reopening of judicial proceedings, but it did set
6 Among other publications, see CELS, Hacer justicia. Nuevos debates sobre el juzgamiento de los
delitos de lesa humanidad en la Argentina (Siglo Vientiuno Editores 2011), https://www.cels.org.

ar/web/publicaciones/hacer-justicia-nuevos-debates-sobre-el-juzgamiento-de-crimenes-de-lesa-
humanidad-en-la-argentina/ (accessed November 18, 2021).
7 IACHR, “Report No. 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309, and 10.311,” October
2, 1992.
an inevitable precedent for the 2005 Argentine Supreme Court ruling on those
instruments of impunity.8 At the same time, it was a determining factor for or-
ganizations to continue insisting on their claims at the national and international
level through an innovative proposal: truth trials (juicios por la verdad).
In 1998, the Inter-American Commission received a new petition against
Argentina from Carmen Aguiar de Lapacó, sponsored by a number of human
rights organizations.9 The petitioner went to the IACHR after judicial authorities
refused to properly channel her petition (based on the right to the truth and to
bereavement) in order to determine what happened to her daughter Alejandra,
who disappeared on March 17, 1977, after being detained by the authorities.
They sustained the violation of their rights to judicial guarantees, to effective ju-
dicial protection, and the obligation to respect their rights under the American
Convention.10
The demands made by the human rights movement, which came up against
multiple sources of resistance at the local level,11 finally found a proper conduit
in the Commission. Through its framework a process of amicable resolutions
commenced with the State agreeing to accept and guarantee the right to the
truth and committing to take diverse measures to remedy alleged violations.
Specifically, the government accepted that the right to the truth “consists of ex-
hausting all measures to attain clarification as to what happened to disappeared
persons . . . without any statutory limits” and determined that it would put in
place a legal framework for National Criminal and Federal Correctional Courts
throughout the country to have exclusive jurisdiction in all cases to ascertain
the truth and final fate of persons disappeared before December 10, 1983. The
government would also assign a corps of ad hoc prosecutors for all cases in the
search for the truth and final fate of disappeared persons; they would also employ
their specialized expertise in gathering and interpreting data and improve the
centralization and circulation of information across dispersed cases.12
Among many other effects, including the effective commencement of the
truth trials, this process of amicable settlement alongside the final report of the
IACHR’s in loco visit ended up being essential elements in the strategy to keep
the public spotlight on the need to uncover acts of State terrorism committed by
8 Julio Héctor Simón y otros s/privación ilegítima de la libertad, etc. (Poblete) [2005], Argentine
National Supreme Court, causa No. 17.768.

9 Namely, Abuelas de Plaza de Mayo, Asamblea Permanente de los Derechos Humanos (APDH),
CELS, Centro por la Justicia y el Derecho Internacional (CEJIL), Familiares de Detenidos Desaparecidos
por Razones Políticas, Liga Argentina por los Derechos del Hombre, Madres de la Plaza de Mayo—
Línea Fundadora—Movimiento Ecuménico por los Derechos Humanos (MEDH), and Servicio de Paz y
Justicia (SERPAJ).
10 For local precedents of international claims, see CELS, La lucha por el derecho (Siglo Vientiuno
Editores 2008), 223.

11 Ibid.
12 Carmen Aguiar de Lapacó v. Argentina [2000], IACHR, Report No. 21/00, Case 12.059.
the civil–military dictatorship and prosecute them institutionally. Nevertheless,

although knowing the truth was essential, the primary objective of the human
rights movement was always justice. As such, the Center for Legal and Social
Studies (Centro de Estudios Legales y Sociales, or CELS) and Grandmothers of
the Plaza de Mayo (Abuelas de la Plaza de Mayo) did not miss the opportunity
to specifically request the reopening of criminal cases on the grounds that the
laws of impunity were unconstitutional. In this context, seeking recourse to the
IAHRS was once again decisive. This time, however, it was achieved not through
the impact of a petition (as in the Report No. 28/92 cases) or the implementation
of an amicable settlement (like the Lapacó case) but through pushing for the ap-
plication of international human rights law by domestic courts.
Consequently, along with Law 25779 repealing the Due Obedience and Full
Stop laws, the precedents and standards set in other Latin American countries by
the IAHRS on the incompatibility of pardoning crimes against humanity, such as
Barrios Altos v. Peru,13 were a cornerstone of the 2005 Argentine Supreme Court
ruling in the Simon case,14 which resulted in the definitive reopening of legal
proceedings against all perpetrators.15 Despite its transcendence, that decision
would not be the end of the ongoing interaction between domestic and interna-
tional law on the road to justice. On the one hand, human rights organizations
have returned to the IAHRS through diverse routes in cases where trials have
been hindered by the outdated dynamics of the Argentine justice system, which
is ill prepared to handle the contingencies of these types of proceedings. In public
sessions before the IACHR, these organizations have, among other actions,
exposed the difficulties they have encountered, forcing the Argentine State to
provide explanations.16 Moreover, IAHRS standards were again essential to
counteract a recent attempt to establish impunity through a significant reduction
in the sentences sought in the Supreme Court ruling in the Muiña case.17 This
13 Barrios Altos v. Perú [2001], IACtHR, Ser. C No. 75.

14 For a synthesis of the Simón case, see https://www.cels.org.ar/common/documentos/sinte
sis_fallo_csjn_caso_poblete.pdf (accessed November 15, 2021).
15 The reopening of the justice process has meant that there are currently 226 court rulings
throughout the country, in which 915 persons were convicted and 144 acquitted. Further informa-
tion on the trials for crimes against humanity in Argentina at https://www.cels.org.ar/informe2019/
lesa.html (accessed December 14, 2021).
16 Among other instances, on March 6, 2007, there was a public hearing before the IACHR in the
context of the “Monitoring compliance with Petition 28/92, Argentina, on the incompatibility of the
laws of impunity with the American Convention” (Seguimiento del cumplimiento del Informe 28/92,
Argentina, sobre la incompatibilidad de las leyes de impunidad con la Convención Americana). For
an audio recording of the hearing, see https://www.cidh.oas.org/Audiencias/127/Seguimiento%20
del%20informe%2028-92,%20Argentina.MP3 (accessed December 14, 2021).
17 Argentine National Supreme Court, “Recurso de hecho deducido por la defensa de Luis Muiña
en la causa Bignone, Reynaldo Benito Antonio y otro s/Recurso extraordinario,” May 3, 2007, https://
www.cij.gov.ar/nota-25746-La-Corte-Suprema--por-mayor-a--declar--aplicable-el-c-mputo-del-
2x1-para-la-prisi-n-en-un-caso-de-delitos-de-lesa-humanidad.html (accessed December 13, 2021).
See, in this regard, CELS, El fallo “Muiña” de la Corte Suprema de Justicia de la Nación, https://www.
cels.org.ar/web/publicaciones/fallo-muina/ (accessed December 2, 2021).
decision, in addition to receiving widespread domestic criticism,18 prompted a

reaction from the Inter-American Commission19 and was ultimately dismantled
under a new decision from the high court in the 2019 Batalla case.20
The capillary effect of the IAHRS’s actions in this struggle for justice warrants
a deeper analysis. Argentina’s experience shows that the IACHR and the IACtHR
can play a key role in political fights with long-term impacts. This will largely de-
pend on the ability of social actors promoting the System’s intervention to inter-
lace their local strategies with the effects of international action. In this context,
measuring the results of each intervention by regional organizations in the short
term, in isolation or as an end in itself, could lead to a weakening of opportunities
for action in which recourse to such intervention must be understood as merely
a part of a much more complex approach.
3. Toward a Genuine Strengthening of the Regional

Protection System
Throughout its history, the IACHR and the IACtHR have had to face serious risks
to their mandates and fundamental competences. These risks arose in the con-
text of severe questioning that arose from different alliances among States in the
region, paradoxically presented as “strengthening processes.” The latest of these
episodes was a few years ago when Brazil, Colombia, Venezuela, and Ecuador
pursued an agenda (on which we have already reflected21) that threatened not
only the IACHR’s autonomy, independence, and, in effect, its authority to rule on
precautionary measures but also the work conducted by the Special Rapporteur
18 In response to the decision on Muiña, the National Congress passed in record time Law
27.362 on the inapplicability of the 2x1 benefit for crimes against humanity. For further informa-
tion, see http://servicios.infoleg.gob.ar/infolegInternet/anexos/270000-274999/274607/norma.htm
19 The IACHR expressed that the Argentine Supreme Court’s decision “departs from international
standards for prosecuting grave human rights violations,” and added that crimes against humanity
differ from other crimes “because of the aims and objectives they pursue; they are based on the
concept of humanity as victim. States, therefore, have an international obligation not to leave these
crimes unpunished and to ensure the proportionality of the penalty. The application of the ‘two for
one’ calculation or other benefits should not serve to undermine the proportionality of the penalty for
persons responsible for crimes against humanity. Its application would render inadequate the pun-
ishment that was imposed, which runs contrary to inter-American human rights standards.” IACHR
Press Release No. 60/17, “IACHR Expresses Concern over Argentine Supreme Court Decision,” May
15, 2017.
20 Argentine National Supreme Court, “Batalla Rufino,” December 4, 2018, https://www.cij.gov.
ar/nota-32689-PENAL---Inaplicabilidad-del-beneficio-del-2x1-para-los-delitos-de-lesa-humani
dad.html (accessed December 11, 2021). See, in this regard, https://www.cels.org.ar/web/2018/12/
corte-suprema-de-justicia-de-la-nacion-no-es-aplicable-el-2x1-para-delitos-de-lesa-humanidad/
21 Camila Baretto Maia et al, The Inter-American Human Rights System. Changing Times, Ongoing
Challenges (Colección Dejusticia 2015).

on freedom of expression, among other issues. Regrettably, these attacks have

not tried to strengthen the bodies of the Inter-American System in terms of
prioritizing the needs of victims of various and longstanding rights violations,
despite how they were framed.
Luckily, as we will see, civil society has often picked up the gauntlet to bolster
the issues, forms, and logic behind intervention by the Inter-American System
in order to improve its impact. There are many examples, but the examples that
I present here center on just three pivotal issues for the IAHRS: its devices, its
composition, and the perspective on which it bases its standards.
I will first focus on the contributions made by domestic civil society actors
toward creating working tools under a renewed logic of timely interventions.
I will then take a look at the weight that civil society brings to bear on preserving
the mandate of the regional protection system through its participation in the
process of selecting IACHR and IACtHR members. This is happening in a con-
text of concrete risks with regard to the profiles of candidates proposed by the
region’s governments. Finally, I will share the efforts of a group of organizations
that have worked tirelessly for the development and consolidation of IAHRS
standards on an issue of the utmost relevance: social protest and human rights.
3.1. The Role of Civil Society in Generating Disruptive Tools
After experimenting for years with the tools of the IAHRS, organizations have
worked arduously to forge new instruments to provide more timely and effec-
tive responses to rights violations. In this context, an innovative intervention by
some international experts in Mexico particularly stands out, as it invigorated
the work being done by Mexican human rights organizations in the fight against
systemic impunity. I am referring to the experience of the Interdisciplinary
Group of Independent Experts (GIEI).
The GIEI was formed in the framework of precautionary measures granted
by the IACHR in response to the disappearance of forty-three students from
Ayotzinapa. The GIEI was an experiment without legal precedent,22 prompted
by Mexican human rights organizations that were mired in a struggle against
systemic impunity. When the GIEI began its work, the Attorney General of the
Republic of Mexico (Procuraduría General de la República, or PGR) had al-
ready publicly revealed the “true story” of the disappearances, according to
which members of the Guerreros United cartel had incinerated the students in
22 Silva Cabrera, Gabriela Ángel, and Gabriela Kletzel, “Ayotzinapa. La experiencia del Grupo
Interdisciplinario de Expertos Independientes,” in CELS (ed.), Derechos Humanos en la Argentina,

Informe 2017 (Siglo XXI editores 2017), 223–242.
a garbage dump and thrown their ashes into the river. The PGR had expressed
its commitment to pursuing and punishing the alleged perpetrators. Without
the intervention of human rights organizations, the case would have gone no
further than that. However, a coalition of organizations prompted an innovative
strategy. They proposed forming a team of institutionally recognized (by both
the IACHR and the federal government) experts to provide technical assistance
in real time to the investigations.
Three human rights organizations in particular—the Centro de Derechos
Humanos de la Montaña (Tlachinollan), the Centro de Derechos Humanos Miguel
Agustín Pro Juárez, and the Red Guerrerense de Organismos Civiles de Derechos
Humanos—played a decisive role in coordinating this approach and forming the
GIEI. Taking advantage of the political momentum that the case generated, they
got the Mexican government and the IACHR to sign an agreement. One key ob-
jective was for the institutionalization of a Group of Experts to maintain social
pressure on the government so as to prevent the Ayotzinapa case from falling
into the tangled web of Mexican bureaucracy.
The most immediate results of the GIEI were two reports exhibiting the se-
rious deficiencies in the methods of criminal investigation and recommending
actions to improve institutional performance. These recommendations applied
to the case at hand, but also made reference to structural problems in institu-
tional responses to forced disappearances. In 2016, once the GIEI was dismantled
by the government of then President Enrique Peña Nieto, the group was replaced
with a system of direct monitoring between the IACHR and Mexican authorities.
At first glance the GIEI might seem like a strategy with only a limited scope.
Years after their disappearance, the forty-three students have never been found.
Moreover, impunity continues to be a serious problem in Mexico and the PGR
continues to receive strong criticism from national and international organiza-
tions alike. However, a more complex assessment of this process requires more
careful attention to the relationship between the GIEI, activists, the State, and
society in general.
Despite being a technical body, the GIEI had strong ties to domestic social
movements. This relationship was neither accidental nor natural but was built
through the intermediation of human rights organizations that facilitated
meetings, organized protests, and linked the GIEI’s work to the most structural
claims against impunity. The investigation became a benchmark in the search
for truth in cases of disappearances and its strong political capital was useful for
those groups leading the social movement around the Ayotzinapa case.
After a year and a half of work the GIEI had successfully discredited the official
version of the story. It conducted a new, independent investigation that disproved
the garbage dump fire theory and the disposal of the ashes in the river. At the
same time, it showed evidence of State and federal police intervention, as well as
army presence at the scene of the disappearances. Furthermore, it documented

how a top government official actively participated in covering up the facts. It
also revealed the existence of a bus that had not been included in the official in-
vestigation, along with indicators suggesting that it was loaded with drugs and
heading for Chicago when the students boarded it. The GIEI formulated this hy-
pothesis as a possible explanation for the wanton reaction by security agents who
opened fire on the students before their disappearance.
Aside from the concrete impact on the Ayotzinapa case, the GIEI acted as a
hub for leveraging energy around broader societal demands for justice. Its role
in the investigation structured arguments that were later transformed into social
mandates and set precedents for improving new strategies. In addition, in the
course of its investigations the GIEI uncovered more than seventy mass graves in
the State of Guerrero that were unrelated to the Ayotzinapa case. In conjunction
with the conclusions on the case, these discoveries placed the problem of struc-
tural impunity in Mexico under intense public scrutiny and contributed to the
organization and mobilization of a broad spectrum of social actors.
The GIEI’s work involved the federal government in an uncomfortable dis-
cussion with international actors that led to the creation of ordinarily nonex-
istent instances of accountability. In addition, it provided tools for strengthening
institutions like the Executive Commission for Attention to Victims and the
National Commission on Human Rights.
The IACHR also played its part. It could have taken a legalistic position and
refused to support this innovation. Nevertheless, aware of the need to take ad-
vantage of the scenario, the IACHR activated another of its legal tools and or-
ganized an in loco visit. This type of visit—which allows the Commissioners to
travel to a country to interview officials, NGOs, and victims in order to assess
the overall human rights situation—had not occurred in Mexico since 1998. By
involving itself in the sociopolitical context created by the Ayotzinapa case, the
presence of the IACHR invigorated discussions around the human rights crisis
in the country and took it beyond the parameters of the specific case toward the
severity and scale of the situation in general.
The work of the GIEI had such an impact that, three years after it was
stopped, the government of President Andrés Manuel Lopez Obrador created
the conditions to re-establish this mechanism and continue the search for
the students and shed light on those responsible for their disappearance.23
Furthermore, the IACHR has decided to replicate this logic of timely interven-
tion in other contexts, such as Nicaragua, where, after visiting the country and
23 See, e.g., Jannet López Ponce, “GIEI se reincorpora a búsqueda de 43 normalistas de Ayotzinapa”
(Milenio, November 11, 2019), https://www.milenio.com/politica/ayotzinapa-giei-reincorpora-

busqueda-43-normalistas (accessed November 11, 2021).
verifying the grave human rights violations occurring during the 2018 social
protests, the Commission decided to establish a Group of Independent Experts
and establish, at the same time, a Special Monitoring Mechanism (Mecanismo
Especial de Seguimiento para Nicaragua, or MESENI).24
Through the GIEI, human rights organizations were able to devise a legal
experiment to maintain the vitality of social movements, create a platform to
show the magnitude of the crisis, and position proposals for structural reform
that also reiterated the forms of intervention conceived within the IACHR itself.
As with the process of Memory, Truth, and Justice in Argentina, this experience
demonstrates that in the framework of more complex strategies international
mechanisms can provide forums capable of generating innovative synergies to
strengthen projects of institutional transformation driven from below.
3.2. Guardians of Mandate and Jurisdiction
A lack of transparent institutional and formal processes for nominating and

selecting Commissioners and Judges to the IACtHR and who meet proper
standards in human rights matters is a problem that can be a deciding factor for
the profile and efforts of protection bodies.25 This risk has escalated in recent
years, with a number of States nominating candidates who are particularly un-
suitable for the forum and whose positions are openly contrary to the standards
of the Inter-American System.
In this context, civil society has played a fundamental role in safeguarding
the composition of regional bodies. In addition to issuing specific proposals
to regional States for the formalization of these processes following the anal-
ysis of candidate profiles—information that, not being made public until
the process is well underway, may be difficult to get—various organizations
have coordinated positions at the national and regional level to reject some
candidates: they have produced joint statements from among hundreds of
organizations requesting the removal of unsuitable candidates, prepared
documents for foreign offices and missions to the Organization of American
States (OAS), encouraged discussion-based meetings in embassies and in
24 On the MESENI, see IACHR Press Release No. 135/18, “IACHR Launches Special Monitoring
Mechanism for Nicaragua (MESENI),” June 25, 2018.

For an example of the impact of actions taken by the IACHR, see “CIDH anuncia liberación de 11
detenidos en Nicaragua” (Voz de América, July 7, 2018), <https://www.voanoticias.com/a/cidh-anun
cia-liberaci%C3%B3n-de-11-detenidos-en-nicaragua/4473199.html> (accessed December 8, 2021).
25 The IACHR and the IACtHR each have seven members from OAS countries who are elected by
the Organization’s General Assembly. To that end, the terms of the American Convention on Human
Rights state that IACHR Commissioners should be persons of high moral authority and recognized
as well versed in human rights matters.
Washington, created public discussion forums that have led to the forma-
tion of a panel prior to each election, and contributed to the construction of a
system of evaluation for candidates by a group of distinguished scholars that is
renewed after every selection process.
One concrete example of this work is the resistance to the election of Carlos
Horacio De Casas, nominated to the Commission by Argentina in 2017. De
Casas is a lawyer with hardly any human rights experience and a long history
of defending corporate interests. He has openly positioned himself against re-
productive and LGBTIQ+rights, and has publicly supported the crime of con-
tempt of court, which has been used to criminalize journalists, something the
IACHR itself has condemned. After announcing his candidacy, De Casas even
lied about the background of a military officer he represented who was accused
of committing crimes against humanity during the civil–military dictatorship.
The only interaction De Casas has had with the Inter-American System was to
defend the executives of a company accused of financial crimes. Moreover, his
law firm went before the IACHR to defend the interests of a mining corporation
that severely damaged indigenous communities in Guatemala. His credentials
could hardly have been worse.
In light of this significant risk to the composition of the IACHR, different civil
society organizations joined forces to prevent De Casas from being elected by the
OAS. This occurred first at the national level and was then extended to include
organizations from other countries, as well as international organizations.
In Argentina, a diverse set of actors issued a formal objection to his candi-
dacy: more than 130 Argentine organizations—human rights organizations,
unions, rural movements, and associations working on justice issues, gender
equality, the environment, LGBTIQ+rights, and freedom of expression—
asked the Minister of Foreign Affairs and the Secretary of Human Rights to
revoke his nomination. These actors and organizations also informed the
public on the problems his designation represented, taking advantage of so-
cial media platforms and coordinating with the Abuelas de la Plaza de Mayo
and the Ni Una Menos groups to provide video testimonies in support of the
campaign. These material expressions of concern and opposition to De Casas’
candidacy were sent by organizations from different States to embassies of
OAS member States in Buenos Aires and to the missions of OAS member
States in Washington. Numerous meetings were also held with diplomatic
personnel.
Meanwhile, in a public letter two former IACHR Presidents, Robert Goldman
and Juan Méndez, urged the Argentine president to withdraw De Casas’ can-
didacy. Finally, an international panel of independent experts sounded the
alarm with regard to his credentials. Based on his CV, professional trajec-
tory, and his previous publications, the panel expressed its concern about the
candidate meeting the requirement of recognized competence in human rights

matters. None of the other five candidates nominated to perform duties as
Commissioners on the IACHR received this type of criticism. Finally, when re-
gional elections were held, the campaign worked, and De Casas was not selected
to the Commission.
Regrettably, this risk seems not to have gone away, as other inappropriate
nominations have proliferated recently. Among other examples, in 2019 the
Argentine government once again insisted on an openly “anti-rights” candi-
date,26 and Colombia tried to designate a candidate that had expressly said “no
to the peace agreement.” In this context, organizations again coordinated stra-
tegically, deploying actions at the national and regional levels. In Argentina, the
coordinated efforts of the human rights movement got the government to di-
rectly withdraw the nomination.27 In Colombia, the filing of a lawsuit at the
local level28 and the regional disclosure of the candidate’s professional back-
ground led to another victory and the Inter-American System’s standards were
upheld.
Both in Argentina specifically and in the region more generally, the work
done by civil society organizations has thus had a hand in preventing the IACHR
from incorporating persons who openly disdain the rights of women and girls,
who defend companies that have violated the rights of rural and Indigenous
communities, or stand against the most basic standards when it comes to
fighting impunity. Indeed, after the last election and for the first time ever these
efforts have contributed to making women the majority on the Commission, one
of whom is an expert on gender issues.
This matter, which at times may seem far removed from the concrete
dynamics of guaranteeing rights, is actually at the core of their effective
safeguarding approaches. In addition to continuing to demand the formalization
of transparent, participative selection processes and in keeping with suitability
requirements, it is fundamental that there are more actors paying attention to
these processes in order to preserve the role of international organizations in the
promotion and protection of rights and the effective prevention and redressing
of violations.
26 Despite the De Casas fiasco, the Argentine government submitted another candidate in 2019
with positions that were openly contrary to IAHRS standards on sexual and reproductive rights, as
well as State obligations regarding crimes against humanity.
27 See Alejandra Hayon, “El antiderechos que se queda en casa” (Página 12, February 20, 2019),
<https://www.pagina12.com.ar/175993-alfredo-vitolo-el-antiderechos-que-se-queda-en-su-casa>
28 See Diego Camilo Carranza Jimenez, “Admiten acción contra la candidatura de exsenador para
representar Colombia ante CIDH” (Anadolu Agency, May 22, 2019), <https://www.aa.com.tr/es/
mundo/admiten-acci%C3%B3n-contra-la-candidatura-de-exsenador-para-representar-colombia-
ante-cidh/1484939> (accessed November 13, 2021).
3.3. Broadening the Agenda and Scope
Experience has shown that anchoring and developing new issues on the IAHRS
agenda is usually a long, stage-by-stage process, where the push from civil society
plays a key role. Of the many possible examples, a useful one for our purposes has
to do with the recent development of an agenda on social protests and human
rights vis-à-vis the Commission. A group of organizations29 in recent years have
been working to encourage a much more systematic and complex approach by
the IACHR to State responses to social protest. Rather than solely linking so-
cial protest to freedom of expression, their approach connects it to the lessons
learned in different national contexts. Their goal was to cast a more complex lens
on social protest, reclaim its legitimacy as a strategy, and place the focus on how
different States react to its deployment.
After diagnosing the need for the IACHR to diversify its position on State
reactions to public demonstrations, the organizations proposed a regional the-
matic hearing to address points of contact where protests and human rights
overlap throughout the continent.30 This hearing was accompanied by a closed
working meeting with the Commission in which the organizations presented in
detail the dimensions and perspectives warranting greater attention from the
Commission.
This exchange led to the inclusion in the IACHR 2015 Annual Report of a spe-
cific chapter on the use of force and human rights in the context of protests31—
for which the organizations were called upon to contribute. This was followed up
with an ongoing study with the Commission that involved monitoring multiple
29 American Civil Liberties Union (ACLU), United States Article 19, Brazil Article 19, Mexico,
Asociación Pro Derechos Humanos (APRODEH), Peru, Canadian Civil Liberties Association
(CCLA), Cauce Ciudadano A.C., Mexico, Centro de Derechos Humanos Fray Francisco de Vitoria,
Mexico, Centro de Derechos Humanos Miguel Agustín Pro Juárez (Centro Prodh), Mexico, Centro
de Estudios Legales y Sociales (CELS), Argentina, Centro de Justicia para la Paz y el Desarrollo
(CEPAD), Mexico, Centro Nacional de Comunicación Social (CENCOS), Mexico, Colectivo de
Abogados José Alvear Restrepo, Colombia, Comité de Familiares de Detenidos—Desaparecidos en
Honduras (COFADEH), Comité de Solidaridad con los Presos Políticos (CSPP), Colombia, Conectas
Direitos Humanos, Brazil, Coordinadora Nacional de Derechos Humanos, Peru, Corporación
Humanas, Chile, Espacio Público, Venezuela, Fundar Centro de Análisis e, Investigación, Mexico,
Instituto de Defensores de Direitos Humanos (DDH), Brazil, Instituto de Estudios Legales y Sociales
del Uruguay (IELSUR), Instituto Mexicano de Derechos Humanos y Democracia (IMDHD),
Mexico, Justiça Global, Brazil, Núcleo Especializado de Cidadania e Direitos Humanos de Defensoria
Pública do Estado de São Paulo, Brazil, Observatorio Ciudadano, Chile, Programa Venezolano de
Educación—Acción en Derechos Humanos (PROVEA), Venezuela, Propuesta Cívica, Mexico,
Red de Apoyo por la Justicia y la Paz, Venezuela, Red Nacional de Organismos Civiles de Derechos
Humanos “Todos los Derechos para Todas y Todos,” Mexico, Servicios y Asesoría para la Paz, A.C.
(SERAPAZ), Mexico.
30 For an audio-visual recording of this hearing, see <https://www.youtube.com/watch?v=_NF0
K33bkLI> (accessed December 12, 2021).

31 IACHR, “Annual Report 2015,” Chapter IV.A, Use of Force.
situations throughout the region, organizing national thematic hearings, and

adopting informed positions articulated through public announcements. At the
same time that the organizations published their own assessment,32 the IACHR
finally resolved to work on the matter in depth and committed itself to preparing
a specific thematic report, which at the time of writing has yet to be published.33
The development of this line of work, encouraged by the initiative and push
from domestic social actors, left the Commission in a better position to assess
and respond to situations such as those taking place a few years ago in Ecuador,
Chile, and Colombia.34 It is worth noting that the contributions of civil society
toward the development of this theme were decisive in the regional mechanism
adopting a more comprehensive definition of protest while also identifying a
series of positive State obligations for facilitating them, as well as looking deeper
at legal and administrative restrictions, repression, the use of force, the criminal-
ization of protest, and the impunity of police violence. Based on the road covered
thus far, these organizations will surely also play a central role in implementing
the key considerations arising from the Commission’s new report, with a view
toward generating effective material conditions to safeguard the right to protest.
Throughout this chapter I have presented an overview of strategic interventions

by social actors within the Inter-American System. Some show that our analyses
of the Commission’s impacts should not be focused on narrow or isolated
actions, since its contributions are often in continuous dialogue with structural
processes, national struggles, and transformations in which victims have dis-
played incredible levels of tenacity. The contributions of national stakeholders
have demonstrated the value of having a deeper knowledge of the complex State
networks operating in each context and re-signified the usefulness and specific
role of international recourse. Others have shown the important role played by
civil society in generating and renewing tools, safeguarding the integration of
mechanisms, and proposing new outlooks on unresolved issues.
Fifty years after the American Convention on Human Rights was ratified,
sharing the multiple but entangled roads taken can inspire other forms of activism
32 In this respect, see CELS, “Latin American State Responses to Social Protest” (CELS, 2016),
https://www.cels.org.ar/protestasocial_AL/en.html (accessed December 17, 2021).

33 See <https://www.oas.org/es/cidh/expresion/showarticle.asp?artID=1160&lID=2> (accessed
December 17, 2021).

34 Among other statements, see https://www.oas.org/es/cidh/prensa/comunicados/2019/262.asp,
<https://www.oas.org/es/cidh/prensa/comunicados/2019/270.asp>, and <https://www.oas.org/es/

cidh/prensa/comunicados/2019/313.asp> (all accessed December 17, 2021).
to confront other debts when it comes to substantive and institutional challenges

that, despite all its accomplishments, persist within the Inter-American System.
Sharing experiences and lessons learned can function as a catalyst for developing
new strategies to confront the broader challenge of upholding human rights on
our continent, now and in the future.
Conclusion
By Armin von Bogdandy, Flavia Piovesan, Eduardo Ferrer Mac-Gregor,
By developing the concept of transformative impact, this volume has brought

the debate about the effectiveness of international human rights law in general,
and of the Inter-American Human Rights System (IAHRS) in particular, be-
yond the narrow frame of compliance. It defined transformative impact as struc-
tural changes resulting from the Inter-American System’s responses to human
rights violations, which tackle systemic regional challenges by addressing the
root causes and institutional enablers of violations, rather than focusing exclu-
sively on their individual dimensions. The volume also connected the notion
of transformative impact to transformative constitutionalism, in which law is
responsive and even redistributive in the face of societal needs and structural
inequalities.1
This collection of studies is a continuation to a decades-long scholarly con-
versation. It fits within the scholarship on Ius Constitutionale Commune en
América Latina (ICCAL). As a concept, ICCAL describes a legal phenomenon
that combines elements of inter-American legal orders into a regional system
oriented toward the protection and advancement of human rights.2 It is a
form of transformative constitutionalism developed in Latin America as a re-
gional project, a mutually supportive structure aimed at compensating national
deficits in order to expand human rights.3 It responds to structural challenges
in the region, constantly adapting not only the issues it tackles but also devel-
oping procedural tools that are best suited to face them. Building upon previous
ICCAL scholarship, the chapters have adopted a multidisciplinary methodology,
anchored on legal principles and comparative analyses.
1See Armin von Bogdandy and René Urueña in Chapter I.1. of this anthology.
2Armin von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America: the
Emergence of a New Ius Commune (Oxford University Press 2017), 4.
3 Ibid.
Armin von Bogdandy, Flavia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi,
Conclusion In: The Impact of the Inter-American Human Rights System. Edited by: Armin von Bogdandy,
© Armin von Bogdandy, Flavia Piovesan, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi 2024.
DOI: 10.1093/oso/9780197744161.003.0033
The volume analyzed the unique characteristics of the Inter- American

System that enable its transformative impact, emphasizing the system’s victim-
centric approach, community of practice, and institutional resilience. The Inter-
American Commission on Human Rights (IACHR) and Inter-American Court
of Human Rights (IACtHR)’s continuous, dynamic interactions with a variety of
stakeholders facilitate both the diffusion of substantive human rights standards
throughout the region and also the reinvention of the Inter-American System’s
procedural formulations to suit a particular time and place, thus maximizing the
impact of inter-American law. The Inter-American System’s influence on the re-
gion has the potential to increase as institutional innovations, capacity-building
efforts, and educational programs draw more State actors, citizens, victims, and
civil society organizations into the community of practice, with its shared under-
standing of and commitment to human rights.4
This community of practice, in turn, fosters institutional and social transfor-
mation. The community is constituted by a diverse group of stakeholders, in-
cluding activists, academia, and public officials such as judges, prosecutors, and
other government officials. These are the stakeholders who work to put inter-
American standards and decisions into practice, ensuring that the changes
envisioned by the Commission and the Court actually happen on the ground.
The dynamic interactions between national actors and the Inter-American
System strengthen them, providing tools and building momentum to overcome
challenges that had been unsurmountable when left only to national systems.
These challenges may involve active resistance by powerful groups (such as eco-
nomic actors profiting from extractive industries that damage Indigenous lands,
or military commanders seeking to avoid punishment for past crimes). At the
same time, in many cases, the challenge to protect rights derives from indiffer-
ence or prejudice against the victims, who are seen as unworthy of protection.
Measures taken by the Inter-American System can contribute to overcoming
these scenarios by shining light onto the violations, rallying social support and
recognizing the legal value of the victim’s claims. The actors seeking to protect
human rights use such measures to strengthen their positions within domestic
disputes (legal, political, or otherwise), reshaping the national equilibrium of
forces in a way that favors victims who had been neglected or antagonized.
In addition to channeling implementation, the community of practice also
fosters transformative impact and creates critical thinking. Constructive en-
gagement enables improvement of the IAHRS institutions, identifying their
shortcomings and indicating possible avenues to achieve better outcomes. The
community of practice keeps ICCAL stakeholders aware of how their actions
are—or are not—impacting the region, as well as of regional transformations
that may require corresponding changes to the protection architecture. As
4 See Mariela Morales Antoniazzi, Flávia Piovesan, and Júlia Cortez da Cunha Cruz in Chapter I.3
of this anthology.
Conclusion 643
the community of practice is diverse, ICCAL debates encompass different

perspectives, multidisciplinary approaches, and creative takes. The commu-
nity also generates interest for inter- American institutions and standards,
disseminating knowledge about the system and drawing in new people and new
actors, thus further expanding and strengthening the community of practice it-
self, as well as the human rights culture more broadly.
The Inter-American System thrives, in part, because of this environment. The
Commission and the Court openly acknowledge the importance of the commu-
nity of practice to their effectiveness, cultivating its engagement via a series of
public participation initiatives, including capacity-building programs, holding
IACHR and IACtHR meetings in places other than their headquarters to be
closer to audiences throughout the region, and opening hearings and events to
the participation of a broad range of actors. Fundamentally, the Inter-American
System is open to continuous change in its focus, forms of action, tools, and pro-
cedure. This flexibility, which we describe as “institutional resilience,” allows the
System to feed on insight provided by the community of practice, continuously
changing itself to respond to feedback and constructive criticism, as well as to
new circumstances in the region.
At the center of the Inter-American System, as well as that of the broader
ICCAL community, lies the victim-centric approach, especially as applied
to comprehensive reparations. This means rights-holders are protagonists—
institutions, standards, and procedures are oriented to recognizing victim’s
agency and to placing their claims front and center. The victim-centric ap-
proach is entrenched in every aspect of the System (indeed, the System itself
is a testament to the rise of human rights as a driving force of international
relations within the Americas): from the inter-American treaties that proclaim
human rights in the region to the procedural rules that enable victims to par-
ticipate in every step of IAHRS processes. In particular, the comprehensive
reparations ordered by the Commission and the Court are a strong example
of how the System takes the plight of the victims of human rights violations
seriously, offering not only monetary compensation for their suffering but also
restituting the fulfillment of their rights when possible (for example, freeing
a person who has been arbitrarily detained or reinstating the job of a victim
who had been wrongfully terminated), requiring rehabilitation measures
(for example, the provision of mental health services for victims of torture),
ordering symbolic measures directed at acknowledging victim suffering and
changing social views on the violation (for example, via State apologies), de-
termining the investigation, prosecution, and punishment of those responsible
for the violation, and the adoption of measures of nonrepetition to prevent
reoccurrence of the violations. This bold set of measures is a unique feature of
the Inter-American System, one that recognizes the complex motivations and
needs of a victim of human rights violations and places them at the center of
the reparation process.
The victim- centric approach strengthens the Inter- American System and
inspires engagement from victims of other violations as well as from agents who
prize human rights progress in the region. In this perspective, the victim-centric
approach is also a driver for growth in the community of practice. In turn, the com-
munity of practice contributes to implementation and to critical thinking on how
to improve victim-centered outcomes. IAHRS institutions constantly transform
themselves to ensure continued deliverance on human rights aims, responding to
the needs of victims and proposals of the ICCAL community.
One can see that the three IAHRS elements highlighted by us—the victim-
centric approach, the community of practice, and institutional resilience—are
mutually reinforcing. They strengthen each other, generating positive feedback
loops and an overall virtuous cycle. The success stories of the IAHRS and its track
record of transformations in the region are built upon the continuous interaction
of these elements.
The Inter-American System’s victim-centered approach, the community of prac-
tice, and the institutional resilience have enabled the System to effectively change
not only in spite of the lack of a robust enforcement mechanism but also in the face
of State resistance.5 In some cases, a State’s resistance to a specific decision against it
represents a form of good-faith engagement in a dynamic process of compliance.6
Nevertheless, States have been known to engage in bad-faith efforts to weaken the
community of practice and undermine inter-American standards by, for example,
limiting the mandates and resources of the Inter-American Commission and Inter-
American Court.7 These kinds of challenges, which target the crux of the Inter-
American System’s effectiveness to date, alarm us far more than does the familiar,
unnuanced observation that rates of compliance with the decisions of these bodies
tend to be low.
To illustrate the transformative impact of the Inter- American System,
its successes and shortcomings, the volume presented examples of how the
Inter-American Commission and Inter- American Court have approached
the rights of Indigenous and tribal peoples;8 the rights of persons deprived of
liberty;9 economic, social, cultural, and environmental rights;10 the rights of
women;11 reproductive rights;12 the rights of LGBTIQ+people;13 rights of the
5 See Rainer Grote in Chapter I.4 of this anthology.

6 See Armin von Bogdandy and René Urueña in Chapter I.1. of this anthology, pp. 11 f..
7 See Armin von Bogdandy and René Urueña in Chapter I.1. of this anthology; Rainer Grote in
Chapter I.4 of this anthology; Claudio Grossman in Chapter I.2 of this anthology.
8 See Gabriela C.B. Navarro in Chapter I.7 of this anthology; see Antonia Urrejola and Elsy
Curihuinca Neira in Chapter II.3 of this anthology.

9 See Clara Burbano-Herrera and Yves Haeck in Chapter I.8 of this anthology.
10 See Eduardo Ferrer Mac- Gregor in Chapter II.1 of this anthology; see also Henry Jiménez
Guanipa and María Barraco in Chapter II.2 of this anthology.
11 See Julissa Mantilla Falcón in Chapter II.4 of this anthology.
12 See Silvia Serrano Guzmán in Chapter II.5 of this anthology.
13 See Chris Esdaile et al. in Chapter II.6 of this anthology.
Conclusion 645
child;14 the rights of older persons;15 the rights of migrants;16 the right to defend
rights;17 the right to effective judicial protection;18 and the right to freedom of
expression.19 The volume also examined the transformative impact of the Inter-
American System in contexts of transitional justice20 and impunity.21 These
examples both demonstrate the importance of the victim-centric approach, the
community of practice, and institutional resilience to achieve transformative im-
pact on the ground and highlight key elements of inter-American jurisprudence,
such as evolutive interpretation, conventionality control, and comprehensive
reparations, which provide the legal and theoretical basis for these real-world
transformations.
They also shed light on a fundamental overarching point: transformative im-
pact is the key to comprehending the successes of the Inter-American System.
The project envisioned by the IAHRS architects was bold—even, some might say,
utopian: in a region plagued by entrenched human rights deficits and, in many
historical moments, run by governments that had no interest in solving these
issues, how could one envision an architecture capable of generating positive
human rights outcomes? The difficulties were compounded by the fact that in-
ternational relations are dominated predominantly by States, and international
human rights law defends the rights of individuals and groups against the States
that have violated them. Like other international human rights institutions, the
IAHRS has to overcome the challenge of relying on States to build and maintain
a system that is used against them. In the twentieth century, human rights pro-
tection in the Americas faced the additional obstacle of a context where many
Latin American States were, for a remarkable part of the century, authoritarian
dictatorships that directly committed systematic violations of human rights.
Transformative impact is the bedrock that enabled the System to succeed in
improving the protection of human rights despite such adverse conditions. By
tapping into the human rights community, the System lets go of the fiction of the
monolithic State and finds allies within national societies. Partnering with the
IAHRS, such domestic allies use legal and political openings to lock in changes
that yield long-term impact on the protection of human rights. Therefore, the
System is able to, at the same time, respond to past human rights violations that
would have gone unchecked and to mobilize against future wrongdoing. Its
14 See Mary Beloff in Chapter II.7 of this anthology.

15 See Aída Díaz-Tendero in Chapter II.8 of this anthology.
16 See Elizabeth Salmón and Cécile Blouin in Chapter II.9 of this anthology.
17 See Melina Girardi Fachin in Chapter II.10 of this anthology.
18 See Carlos Ayala Corao in Chapter II.13 of this anthology.
19 See Catalina Botero-Marino in Chapter II.14 of this anthology; see also EdisonLanza in Chapter
II.15 of this anthology.

20 See Christina Binder in Chapter II.11 of this anthology.
21 See Oscar Parra Vera in Chapter II.12 of this anthology.
institutional resilience allows it to adapt itself to whichever format is more con-

ducive of change in a particular time and place, acting within the realm of what
is possible to reach true transformation. That is why the history of the IAHRS
is marked by the issues it tackled as much as by the procedures it used to do
so (standard-setting, reports, litigation, precautionary and provisional meas-
ures, follow-up mechanisms). In a way, the constant reinvention allows domestic
and international actors to jointly hack whichever set of circumstances had been
hampering change, and to skew structures of power in favor of victims of human
rights violations and other disadvantaged groups.
Transformative impact also allows one to understand how a System with rela-
tively few cases (if compared, for example, to the European System of Human Rights
or to national institutions) and allegedly low rates of compliance has been able to
not only last decades, but to affirm itself as a reference and a vanguard institution.
Structural change and transformation that becomes embedded in national societies
(either legally or culturally) are key to understanding the IAHRS legitimacy. They
explain how the System is able to deliver on its mandate and maintain relevance
even if its size is small when contrasted with the hundreds of millions of people it
aims to protect.
The chapters in this volume should inspire future studies of the transformative
impact of the Inter-American System that concern standards and contexts not cov-
ered in this volume, such as digital rights, climate change, and freedom from vio-
lence, including cyberviolence. Similarly, the volume identified and analyzed tools
of the Inter-American System that merit study but whose impact could be further
explored by scholars, including precautionary measures, provisional measures, and
advisory opinions.22 The volume also suggested that scholars deepen the methodo-
logical discussion on measuring compliance and impact, as well as their manner of
theorizing the relationship between the two.23
Finally, the volume recommends changes that could increase the transform-
ative impact of the Inter-American System. To be more responsive to societal
needs and structural inequalities, for example, the Inter-American System could
expedite cases that are most likely to address these problems and could prioritize
developing inter-American standards in conversation with the society at large.24
Then, to facilitate State compliance with its decisions and broad acceptance of its
22 See Clara Burbano-Herrera and Yves Haeck in Chapter I.8 of this anthology; see also Pablo
Saavedra Alessandri in Chapter III.2 of this anthology.

23 See Aníbal Pérez-Liñán et al. in Chapter III.3 of this anthology; see also Viviana Krsticevic and
René Urueña in Chapter III.4 of this anthology.

24 See Joel Hernández García in Chapter III.1 of this anthology; see also Katya Salazar and Daniel
Cerqueira in Chapter III.5 of this anthology.

Conclusion 647
standards, the Inter-American System could strengthen national capabilities and

engage in continuous dialogue with State actors.25
The Inter-American Human Rights System has proved its ability to cause
transformative impact. By opening a path for victims of human rights violations
to address their grievances, it has contributed to face structural challenges in the
region. It helps transform the pain of the victims into dignity, rights, and justice.
The better the community of practice understands that impact, the better it can
help transform.
25 See Joel Hernández García in Chapter III.1 of this anthology; see also Gabriela Kletzel in
Chapter III.6 of this anthology.

Index
For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear
on only one of those pages.
Aarhus Convention, 240 adoption, 79–80

abductions. See forced disappearances healthy environment, right to, 237–38,
abortion, 294–95 238n.9
Abuelas de la Plaza de Mayo (NGO), 629–30, 636 human rights defenders, 394
access to information, 478, 479, 485–93 institutional reform, 93–94
ACHPR. See African Charter on Human and life, right to, 290
People’s Rights (ACHPR); African living instrument doctrine, 81–82
Commission of Human and People’s older persons, 362n.41
Rights (ACHPR) remedial practice, 84–85
ACHR. See American Convention on Human African Commission of Human and People’s
Rights (ACHR) Rights (ACHPR)
ACtHPR. See African Court on Human and generally, 76–77
Peoples’ Rights (ACtHPR) creation, 79–80
activism strategies digital freedom of expression, 496
generally, 14, 625–26, 639–40 future trends, 99
complex strategies and IAHRS, 626–31 healthy environment, right to, 238n.9
impunity, 625–26 human rights defenders, 394
in loco visits, 627, 629–30 institutional reform, 93–94
regional protection system LGBTQI+ rights, 314, 316
generally, 631–32 living instrument doctrine, 80–81
broadening of agenda and scope, 638–39 African Court on Human and Peoples’ Rights
civil society organizations, 632–35 (ACtHPR)
disruptive tools, 632–35 generally, 76–77
guardians of mandate and jurisdiction, creation, 79–80
635–37 documentation strategies, 194
social protest, use of force, 638–39 institutional reform, 93–94
Additional Protocol to the American living instrument doctrine, 81–82
Convention on Human Rights in the noncompliance, 94
area of Economic, Social, and Cultural remedial practice, 84–85
Rights (Protocol of San Salvador) standard-building function, 182
children’s rights, 327, 328 withdrawal from jurisdiction, 91
economic, social, cultural, and African Moot Court Conference, 323–24
environmental rights, 218–19, 224, 225 African Union
health, right to, 359 Grand Bay Declaration and Plan of
healthy environment, right to, 242 Action, 394
older persons, 359, 361 human rights defenders, 393, 394
advisory opinions institutional reform, 93–94
generally, 180–81 LGBTQI+ rights, 314
LBGTQI+ rights, 550–56 remedial practice, 85
migration, 178, 181, 375t Agosti, Orlando Ramón, 627
transformative impact, 548–49 Aguiar de Lapacó, Alejandra, 629
African Charter on Human and People’s Rights Aguiar de Lapacó, Carmen, 629
(ACHPR) Aguirre Roca, Manuel, 466–67
generally, 76–77 Alfonsín, Raúl, 627n.4
650 Index
Alvarado, Fabricio, 582–83 judicial independence (see judicial

American Convention on Human Rights independence)
(ACHR) legislative measures, 526
access to information, 486, 492, 493 LGBTQI+ rights, 314–15, 550
Additional Protocol to the American life, right to, 290, 291–92, 341, 358–59
Convention on Human Rights in the maintaining human rights focus among
area of Economic, Social, and Cultural dictatorships, 36–37
Rights (Protocol of San Salvador) migration, 371
children’s rights, 327, 328 monitoring compliance, 142–43
economic, social, cultural, and older persons, 349–50, 360
environmental rights, 218–19, 224, 225 personal liberty, right to, 292
healthy environment, right to, 242 preventive detention, 159
older persons, 349–50 prison conditions, 158–59, 171–72, 173
adoption, 78–79, 522–23, 525 private life, right to, 292
amnesty, 66n.80, 409, 413–15, 417–19 Protocol of San Salvador, 218–19, 224, 225,
Article 26, 242 (see also economic, social, 242
cultural, and environmental rights) provisional measures (see provisional
children’s rights (see children’s rights) measures)
claims, 35 rape, 157–58
compliance, 564–65 remedial practice, 83–84
contempt laws, 481 remedial provisions, 83–84, 83n.33
conventionality control (see conventionality sexual violence, 272, 273, 276, 279
control) standards, 63, 64, 606–7
criminal defamation, 483–84 transitional justice, 411–12
deprivation of liberty, 158 in vitro fertilization (IVF), 285–86
digital freedom of expression withdrawal, 87n.56, 88–90, 476–77, 582
generally, 496, 503 American Declaration on the Rights and Duties
hate speech, 512–13 of Man
net neutrality, 506 adoption, 78–79, 522, 525
privacy, 515 children’s rights, 164n.62, 327
dignified life, right to, 108–9 claims, 35
domestic courts, 114–15 direct justiciability, 227, 228
economic, social, cultural, and environmental global human rights governance, 101–2, 103,
rights (see economic, social, cultural, and 104–5
environmental rights) healthy environment, right to, 241
embeddedness, 86–87 life, right to, 289, 290
evolutionary interpretation, 524 older persons, 349–50
family, right to, 292 standards, 63
freedom of association, 403 American Declaration on the Rights of
freedom of expression (see freedom of Indigenous Peoples, 242
expression) American Institute of International Law, 101–2
fundamental rights, 597 amnesty
grievances of individuals against nations, 38 generally, 38–39, 39n.23, 66n.80, 409
healthy environment, right to, 239, 242, 246, conventionality control, 417–19
247 international human rights standards, 106–7
human dignity, 155 jurisprudence of IACtHR, 412–19
humane treatment, right to, 273n.13 domestic reception, 419–22
human rights community of practice, 18, 22, 25 standards, 412–19, 423
human rights defenders (see human rights jus cogens status of law, 415
defenders) nullification of laws, 416–17, 418–20
impunity (see impunity) past human rights violations, 409–11
indigenous rights (see Indigenous rights) procedural legitimacy, 422
integral reparation, 534 transformative impact, 540–41, 557–60, 581,
interpretation, 548n.36 609–10
Index 651
analytical framework for transformative impact Constitution, 95

generally, 10, 176–77, 196–98 constitutional law, 588–89
appropriation, 185–87 contempt laws, 481
communities of practice, 185–86 controversial appointments to IACHR,
compliance constituencies, 186 636–37
documentation strategies, 192–96 Country Reports, 184
change in practices, 193–94 COVID-19 pandemic, 62
change in social outcomes, 195–96 crimes against humanity, 626–31, 631n.19
change in structures, 194–95 criminal defamation, 483–85, 540–41
empirical approach, 197–98 democracy, declining support, 53–54
impact defined, 177–80, 197 DPLF, 622
indirect effects, 178 Due Obedience Law, 627–28, 630–31
institutional response, 187–90 extractive industries, 252
academic curricula, 190 Federal Contentious Administrative
domestic legislation, 188–89 Chamber, 384
institutional design, 189–90 Federal Correctional Court, 629
jurisprudence, 189 forced disappearances, 568–69, 626–31
positive versus negative response, freedom of expression, 28–29, 476, 480,
187–88 494
public policy, 189 Full Stop Law, 627–28, 630–31
instruments, 180–85 healthy environment, right to, 249, 252
generally, 179 human rights units, 115–16
adjudicatory instruments, 179, 180–81 human rights violations, 37
assisting function, 184–85 IACtHR, 95, 97–98
directing function, 181–82 ICPHROP, 354
documenting function, 184 impunity, 424–25
non-adjudicatory instruments, 179, indigenous rights, 151–52
180–81 LGBTQI+ rights, 322
positioning function, 182–83 Memory, Truth, and Justice, 626–31, 635
reframing function, 183–84 migration, 378, 382–83, 384, 387
standard-building function, 182 militarization, 54–55
rights effectiveness, 179 military reforms, 443
transformations on ground, 190–91 Ministry of Foreign Affairs, 636
transformative sequence, 176, 180, 197 National Commission on the Disappearance
Anaya, Jorge Isaac, 627 of Persons (CONADEP), 627–28,
Andean Tribunal of Justice, 18 627n.4
Andrighi, Nancy, 501 National Criminal Court, 629
Antigua and Barbuda, right to healthy National Emergency Decree No. 70/2017,
environment, 249 382–83
Arab Spring, 99 net neutrality, 508
Arellano, Almonacid, 431–32 prison conditions, 165
Argentina reparations, 568–69
access to information, 487, 489–91, 494 Supreme Court of Justice, 151–52, 421,
amnesty 489–90, 628–29, 630–31
compliance, 610 Trial of the Military Juntas, 627–28
transformative impact, 581 “truth trials,” 628–30
transitional justice, 409–10, 410n.5, assembly, right of, 404–5
410n.7, 412–13, 421–22, 421n.68, 423 association, freedom of
Center for the Implementation of Public human rights defenders, 403
Policies Promoting Equity and Growth judicial independence, 459–62
(CIPPEC), 490 asylum, 375–76
children’s rights, 340 Austria, ECHR, 86
communities of practice, 23–24 autonomous law, 19–20
compliance, 28–29 average time to compliance, 570, 575
652 Index
Bachelet, Michelle, 239 children’s rights, 164–65, 336–37, 340

Bahamas communities of practice, 23–24
access to information, 487 Constitution, 25
healthy environment, right to, 249 contempt laws, 481–82
Baigorria, Raúl, 568 COVID-19 pandemic, 58, 62
Bangalore Principles of Judicial Conduct, 460–61 Criminal Institute of Plácido de Sá Carvalho,
Barbados 153–54, 155, 167–73, 174t, 175
compliance, 577 democracy, declining support, 53–54
death penalty, 540–41 Fireworks Factory case, 207–9, 210, 212
healthy environment, right to, 249 freedom of expression, 494, 501
provisional measures, 161n.51 healthy environment, right to, 249, 251
Basic Principles on the Independence of the human rights, 25
Judiciary, 451–52, 453, 459–60, 461, 462 human rights defenders, 395
Bautista, Cristina, 265–66 human rights units, 115–16
“Beijing Rules,” 330 impunity, 438–39
Belize indigenous rights, 97n.95
healthy environment, right to, 249, 250–51 militarization, 54–56
indigenous rights, 250–51 Military Criminal Code, 55
Benin, withdrawal from AFCtHR jurisdiction, 91 National Policy of Protection for Human
Benito, Odo, 322–23 Rights Defenders, 395
Berger, Óscar, 569 National Program for the Protection of
Bernardino, Minerva, 103 Human Rights Defenders (PPDDH),
Betancur, Belisario, 611n.31 395
Bogotá Conference, 103–4 net neutrality, 508
Bolivia prison conditions, 163–65, 166–67, 171–73,
attempts to maintain human rights narrative, 175
40, 42n.38, 48 provisional measures, 153–54, 161n.52,
children’s rights, 340 163–64
Code of Criminal Procedure, 364 racial discrimination, 209n.35
compliance, 572–74, 577 reparations, 67n.83
Constitution, 482–83 Superior Court of Justice, 481–82, 501
contempt laws, 481–83 Supreme Federal Court, 168–69, 171–73,
COVID-19 pandemic, 62 175, 494
DPLF, 612 threats to mandate of IACHR, 631–32
forced disappearances, 540–41 Brighton Declaration, 92
General Law on Older Persons, 352, 364 Buergenthal, Thomas, 611n.31, 612n.32
healthy environment, right to, 249 Bukele, Nayib, 40
human rights violations, 37 Burkina Faso, AFCtHR jurisdiction, 91
ICPHROP, 354
impunity, 433 Cáceres, Berta, 619
indigenous rights, 151–52 Canada
migration, 373–74, 380 extractive industries, 615–16
militarization, 55 extraterritorial responsibility, 615–16
older persons, 351–54, 361, 362, 363, 364 Caribbean Court of Justice (CCJ), 250–51
Plurinational Constitutional Court, 151–52, Cartagena Declaration, 376, 376n.53, 380–82
350, 351, 352, 354, 482–83 Castro, Fidel, 36n.9
Political Constitution of the Plurinational Cayapú, Alver, 265–66
State, 364 Cayapú, Asdruval, 265–66
Bolsonaro, Jair, 40 CEDAW. See Convention on the Elimination
Brazil of All Forms of Discrimination against
access to information, 487, 494 Women (CEDAW)
anti-LGBTQI+ groups, 56 censorship, 478, 499, 509
attempts to maintain human rights narrative, Center for Justice and International Law
40, 42n.38 (CEJIL), 400
Index 653
Center for Legal and Social Studies (CELS), 55 anti-LGBTQI+ groups, 56

Centro de Derechos Humanos de la Montana attempts to maintain human rights narrative,
(NGO), 633 40–41, 48
Centro de Derechos Humanos Miguel Agustin children’s rights, 340
Pro Juarez (NGO), 633 communities of practice, 23–24
Centro de Estudios Legales y Sociales (CELS) compliance, 577
(NGO), 629–30 Constitution, 420n.64, 540–41
César de Souza, Roni, 164–65 Constitutional Court, 487
Chávez, Hugo, 230, 476–77 Constitutional Tribunal, 294–95
child pornography, 499, 509 contempt laws, 481–82
children’s rights Councils of War, 544–47, 545n.31
generally, 11, 326–31 Country Reports, 184
child defined, 334–35 Decree Law, 431
evaluation of IAHRS, 346–33 DPLF, 622
instrumentalization of child victims, 328 freedom of expression, 475–76, 540–41
international corpus juris, 329–34 healthy environment, right to, 249
jurisprudence of IACtHR, 335–40 human rights violations, 36, 37, 65n.79
child soldiers, 340 ICPHROP, 354
communities, 340 impunity, 424–25, 427, 429, 431–32
forced labor and trafficking, 340 Inter-American SIMORE, 68
health, education, and special needs, 339–40 judicial independence, consequences of
individuals, 339–40 violations, 470–71
institutional violence, 339 legislative reform, 188–89
juvenile justice, 339 LGBTQI+ rights, 315
nondiscrimination, 339 migration, 378–80, 385, 387
limits of IAHRS, 346–33 militarization, 55
possibilities of IAHRS, 346–33 net neutrality, 507–8
precautionary measures, 329–32 older persons, 358–61, 360–61n.39, 362
provisional measures, 165, 329–32 reparations, 193
reparations, 337 social protest, use of force, 639
special protection measures Supreme Court, 182, 385, 420–21, 420n.64,
best interests of child, 343 432, 545–46, 581–82
detention, 342–43 Truth and Reconciliation Commission, 432
dignified life, right to, 341–43 civil society organizations (CSOs)
economic, social, cultural, and DPLF, 613n.33, 621, 623–24
environmental rights, 342 healthy environment, right to, 240
education, 341–42, 345 regional protection system, role in
family protection, 343–44 strengthening, 632–35
forced disappearances, 344 sociopolitical dimension of IAHRS, 71
health, right to, 343 standards, 611
indigenous people, 344 climate change, 239–40
institutional violence, 344 Coalition of African Lesbians, 314
life, right to, 340–43 Coalition of LGBTIQ+ Organizations of Latin
other rights, 343–46 America and the Caribbean, 310
sexual violence, 346 Colombia
street children, 342n.103 access to information, 487, 492–93
substance versus procedure, 331 anti-LGBTQI+ groups, 56
transformative impact, 327 attempts to maintain human rights narrative,
child soldiers, 340 40–41, 48
Chile Attorney General, 189–90
abortion, 294–95 children’s rights, 340
access to information, 486–88 Civil Code, 294–95
amnesty, 409–10, 410n.5, 412–13, 414–15, communities of practice, 23–24
414n.30, 420–22, 423 compliance, 572, 592
654 Index
Colombia (cont.) communities of practice

Comprehensive System of Truth, Justice, appropriation, 185–86
Reparation and Guarantees of Non- human rights community of practice, 18,
Repetition, 189–90, 445 22–26, 70–71, 642–43, 644
Constitutional Court, 145, 151–52, 168–70, narrative of human rights impact, 200–1
171–72, 250, 252, 294–95, 323–24, 386, transformative impact, 642–43
444n.71, 445, 447, 492–93 comparative analysis
constitutional law, 588–89 generally, 9, 76–77
controversial appointments to IACHR, 637 backlash against human rights jurisprudence
criminal defamation, 484–85 generally, 87
DPLF, 622 institutional reform, 91–94
extractive industries, 252 noncompliance, 94–96
FARC guerrilla group, 189–90 responses, 96–98
Final Peace Agreement, 265, 445 withdrawal from regional human rights
forced disappearances, 224–25 systems, 88–91
freedom of expression, 476, 500–1 Cold War, expansion of human rights
healthy environment, right to, 249, 249n.62, protection
250, 252 generally, 77–78
human rights defenders, 395 diversification of remedial practice, 82–85
human rights violations, 37 embeddedness, 86–87
impunity, 427, 429–30, 434–38, 436n.46, institutionalization, 78–80
443–47, 444n.71, 444n.73 judicialization, 80–82
Indigenous Guard, 265, 265n.40, 267 future trends, 98–99
indigenous rights, 151–52, 262–63, 264–66 complementarity, 527
institutional response, 189–90 compliance
investigations of human rights violations, 593 generally, 8, 17–18, 32–33
Law of Justice and Peace, 445 challenges, 45
LGBTQI+ rights, 315, 323–24 constructivist approach, 593–94
life, right to, 294–95 conventionality control, 127–28, 589–90
migration, 378–80, 383, 386, 387 Country Reports, 533–34, 606, 610–11, 613, 621
militarization, 55 defined, 177–78
military reforms, 443 dynamic monitoring, 590–95
National Institute of Legal Medicine and dynamic nature of decisions, 27
Forensic Sciences, 189–90 dynamic nature of implementation, 28
National Police, 492–93 friendly settlements, 533–34
precautionary measures, 30–31 hearings, 592
prison conditions, 165, 166–67, 168–70, 171–72 human rights community of practice, 22–26
reparations, 30, 67n.83 IACHR monitoring, 97n.97, 113, 142–43
Search Unit for Presumed Disappeared IACtHR monitoring, 97n.97, 113, 142–43,
Persons, 445 591–94
Siona indigenous people, 261–62 impact versus, 30
social protest, use of force, 639 literature review, 585–90
Somos Defensores, 395 low levels, 4–5, 17, 18, 176, 584, 604–6
Special Jurisdiction for Peace (JEP), 189–90, measuring (see measuring compliance)
445–46 Merits Reports, 533–36, 605
Supreme Court of Justice, 249n.62, 430, 444, partial compliance, 586, 587
444n.73, 501 promoting, 532–36
threats to mandate of IACHR, 631–32 dialogue, 535–36
Unidad Nacional de Protección, 395 integral reparation, 534
Colombia Diversa (NGO), 322, 324–25 Inter-American SIMORE, 533–34
Committee against Torture (CAT), 313 private working meetings, 533–34
Committee on Economic, Social and Cultural public hearings, 533–34
Rights (CESCR), 313 referrals, 534–35
Index 655
qualitative studies, 587–90 Access to Justice in Environmental

quantitative studies, 585–87 Matters (Aarhus Convention), 240
realist approach, 594 Convention on the Elimination of All Forms
Thematic Reports, 606, 610–11 of Discrimination against Women
traditional understandings, 27–28 (CEDAW)
transformative impact beyond CEDAW Committee, 269–70, 289–90
generally, 13–14, 584–85, 595, 601–2 direct justiciability, 228
amnesty, 609–10 life, right to, 289–90
change over time, 595–96 sexual violence, 269–70, 272
defining, 143–46 Convention on the Rights of Persons with
IACtHR, 147–48 Disabilities, 228
improving quality of compliance, 596–600 Convention on the Rights of the Child
institutional impact, 600–1 child defined, 334–35
standards, 604–11 child pornography, 499
transformative constitutionalism, 6, 29–32 Committee on the Rights of the Child,
transformative practice, 26–29 329n.8, 334
compliance life cycle, 566, 578f, 578–80 direct justiciability, 228
Conference on the Human Environment, 237 impact, 326–27
“connection theory.” see economic, social, indirect justiciability, 220–21
cultural, and environmental rights international corpus juris, 329–30
constructivist international relations, 593–94 life, right to, 289–90
contempt laws, 480–83 nondiscrimination, 279
Convention against Corruption, 620 ratification, 326–27
conventionality control Coordinadora Nacional de Derechos Humanos
generally, 9–10, 122–24, 136–37, 412n.13 (CNDDHH) (NGO), 305–6, 305n.8
adjudication versus execution, 129–31 Correa, Rafael, 476–77
amnesty, 417–19 corruption
binding nature of decisions, 135 Country Reports, 621
categories, 132, 133–34, 136 development of standards, 619–23
compliance, 127–28, 589–90 rule of law, 52n.12
defined, 125–29 Thematic Reports, 621–22
diffuse control, 122–23, 123n.2, 130–31, 136, Corruption Perception Index, 51–52
137 Costa Rica
diffuse versus concentrated control, 123n.2 access to information, 488
erga omnes, 132, 136, 137 Association of Doctors and Surgeons of
external versus internal control, 122–23, Costa Rica, 300
122–23n.1, 130–31, 136 Centro FECUNDAR Costa Rica—Panama,
flexibility, 32–33 300–1
hypotheses, 123 Centro Fertilizacion In Vitro La California,
implementation as component, 132, 133 300–1
indigenous rights, 151–52 Civil Code, 553
methodology, 124–25 Civil Status Registry, 553
relaxing, 32–33 Constitution, 285–86
res interpretata, 122–23, 129–36, 137 Constitutional Chamber, 285–86, 287–88,
res judicata, 122–23, 129–37 290, 298, 488, 543–44, 552–54, 582–83
targets, 128 COVID-19 pandemic, 62
Convention of Belém do Pará. See Inter- criminal law, 540–41
American Convention on the Family Code, 552, 582–83
Prevention, Punishment and Guidelines for Respectful and Equal
Eradication of Violence against Women Treatment, 553
(Convention of Belém do Pará) healthy environment, right to, 249
Convention on Access to Information, Public ICPHROP, 354
Participation in Decision-Making and Inter-American SIMORE, 68
656 Index
Costa Rica (cont.) criminal defamation, 479, 483–85

LGBTQI+ rights, 549–50n.44, 552–54, 582–83 Criminal Institute of Plácido de Sá Carvalho
Ministry of Health, 300–1, 543–44 (Brazil), 153–54, 155, 167–73, 174t, 175
name change for trans persons, 553–54 CSOs. See civil society organizations (CSOs)
same-sex marriage, 552–53, 582–83 Cuba
Social Security System, 189, 543–44 healthy environment, right to, 249
Supreme Court of Justice, 296–97, 298–99 human rights violations, 36n.9, 37
Supreme Electoral Tribunal (TSE), 553–54 cultural identity, right to, 255–56, 257
Unit of Reproductive Medicine of High cybersecurity, 514–16
Complexity, 189
in vitro fertilization (IVF) de Bari Hermoza Ríos, Nicolás, 599
generally, 25–26, 189, 191, 223 De Casas, Horacio, 636–37, 637n.26
annulment of prohibition, 297–300, 542, Declaration of Principles on Freedom of
542n.18 Expression
IACtHR decision, 285–87, 301–2 generally, 474–75
inspection and quality controls, 300–1 access to information, 485–86, 486n.87, 492–93
regulation, 300–1 contempt laws, 481
reparations, 295–96, 302 criminal defamation, 483
reproductive rights, training judiciary, digital freedom of expression, 504
296–97 public interest speech, 479–80
state healthcare system, 301 Declaration on Human Rights Defenders, 391–93
transformative impact, 541–44 Declaration on the Elimination of Violence
Womens Hospital Dr. Adolfo Carit, 301 Against Women, 270
Côte d’Ivoire, withdrawal from AFCtHR Declaration on the Right and Responsibility
jurisdiction, 91 of Individuals, Groups and Organs
Council of Europe (CoE) of Society to Promote and Protect
expansion, 78 Universally Recognized Human Rights
Recommendation of the Council of Europe and Fundamental Freedoms, 391–93
on the Independence, Efficiency and Declaration on the Rights of Peasants and Other
Role of Judges, 463 People Working in Rural Areas, 238–39
Country Reports De-Justicia (NGO), 323–24
generally, 5–6, 26–27, 34–35, 36–37, 41–44, deprivation of liberty, 155–59, 161
47–48, 62–63 Despouy, Leonard, 460–61
compliance, 533–34, 606, 610–11, 613, 621 detainees, 157
corruption, 621 dictatorships
freedom of expression, 475, 479–80 maintaining human rights focus, 36–37
human rights violations, 184 National Security Doctrine, 36
impunity, 424–25, 627 digital freedom of expression
indigenous rights, 254–55, 266 generally, 13, 495–97, 516–17
transformative impact, 177, 179, 182, 183, challenges, 501–3
184, 186, 197 digital divide, 505
Court of Justice of the Andean Community, “digital footprints,” 503
139–40 principles
COVID-19 pandemic generally, 503–4
freedom of expression, 494 content blocking, 502, 509–10
healthy environment, and right to, 251 cybersecurity, 514–16
migration, 560–61 disinformation, 512–13
need for IAHRS, 57–62 diversity, 505, 506
Rapid and Integrated Response Coordination filtering, 509–10
Unit (SACROI), 46–47 hate speech, 512–13
crimes against humanity intermediary liability, 510–11
impunity, 431–32, 630–31, 631n.19 net neutrality, 506–8
pardons, 630–31 nondiscrimination, 505–6
Index 657
pluralism, 505, 506 children’s rights, 342

privacy, 514–16 “connection theory”
subsequent liability, 511–12 equality and nondiscrimination, 222–23
surveillance, 514–16 groups in position of vulnerability, 221–23
universal access, 504 procedural rights, 221, 222
private actors, 502–3 substantive rights, 220–22
restrictions, 501–3 violation of Article 26 alleged, 220–21
social media direct justiciability
generally, 496, 517n.77 generally, 226–27
abuse, 502 education, right to, 225
hate speech, 512 health, right to, 226, 231
intermediary liability, 510 healthy environment, right to, 232
Thematic Reports, 496, 503 indigenous rights, 232–33
dignified life, right to, 108–9, 341–43 Lagos del Campo case, 227
direct justiciability of ESCER. See economic, methodology, 227–28
social, cultural, and environmental new model, 226–35
rights Protocol of San Salvador, 225
discrete-time measures of compliance, 566, 576t reparations, 234–35
disinformation, 512–13 social security, right to, 232
Dominica, right to healthy environment, 249 state obligations, 228–29
Dominican Republic trade unions, 225
access to information, 493 work, right to, 229–30
anti-LGBTQI+ groups, 56 healthy environment, right to (see healthy
children’s rights, 340, 346–47 environment, right to)
compliance, 575, 577–78 indirect justiciability
Constitutional Tribunal, 582 education, right to, 220–21
healthy environment, right to, 249 equality and nondiscrimination, 222–23
human rights violations, 37 forced disappearances, 224–25
IACtHR decisions not enforced, 89–90 groups in position of vulnerability, 221–23
Inter-American SIMORE, 68 indigenous rights, 220–22, 223–24
migration, 372–73, 374–75 procedural rights, 221, 222
withdrawal from IAHRS, 90, 582 Protocol of San Salvador, 224
Dozo, Basilio Lami, 627 reproductive rights, 222, 223–24
DPLF. See Due Process of Law Foundation sexual violence, 223–24
(DPLF) substantive rights, 220–22
Due Process of Law Foundation (DPLF) trade unions, 224
generally, 14, 603–4, 623 violation of Article 26 alleged, 220–21
Blog DPLF, 614n.38 work, right to, 223–24
civil society organizations, 613n.33, 621, migration, 378
623–24 protection through civil and political rights
corruption, 620, 621–23 generally, 218–20
extraterritorial responsibility, 614–15, indirect justiciability, 220–23
616–17, 618 “rereading” of ESCER language, 223–25
programs, 612 Special Rapporteurship on Economic, Social,
standards, 611–14, 613–14n.37 Cultural, and Environmental Rights,
strategies for expansion of IAHRS, 611–14 217
Thematic Reports, 243, 247
East African Court of Justice, 99 Economic Commission for Europe, 240
ECHR. See European Convention on Human Economic Commission for Latin America
Rights (ECHR) and the Caribbean (CEPAL), 235–36,
economic, social, cultural, and environmental 368–69
rights Economic Community of West African States
generally, 10, 217–18, 235–36 (ECOWAS), 99
658 Index
ECtHR. See European Court of Human Rights compliance, 592

(ECtHR) Constitutional Chamber, 488–89
Ecuador COVID-19 pandemic, 62
attempts to maintain human rights narrative, criminal defamation, 484–85
40–41, 42n.38, 48 DPLF, 612, 622
children’s rights, 340 Farabundo Marti National Liberation Front,
Civil Code, 554n.55 611n.31
compliance, 572–74, 577–78 healthy environment, right to, 249
Constitution, 25, 382–83, 554n.54 human rights violations, 36, 37
Constitutional Court, 385–86, 554–56 ICPHROP, 354
extractive industries, 250, 251 militarization, 54–55
freedom of expression, 476–77 prison conditions, 166–67
healthy environment, right to, 249 Supreme Court of Justice, 488–89
Human Mobility Law, 380–82 Truth Commission for El Salvador, 611–12,
human rights, 25 611n.31
ICPHROP, 354 Equal Rights Trust (NGO), 323–24
impeachment of judges, 465–66, 467 erga omnes, 132, 136, 137, 149–50
indigenous rights, 251 Escaleras Mejía, Carlos, 388–89, 399–400, 402,
LGBTQI+ rights, 315, 554–56 403, 404, 406, 407
migration, 371, 380–83, 385–86, 387 Escazú Agreement. See Regional Agreement
Ministry of Interior, 386 on Access to Information, Public
National Superintendency of Migration, 386 Participation and Justice in
same-sex marriage, 554–56 Environmental Matters in Latin
social protest, use of force, 639 America and the Caribbean (Escazu
threats to mandate of IACHR, 631–32 Agreement)
education, right to ESCER. See economic, social, cultural, and
children’s rights, 339–40, 341–42, 345 environmental rights
direct justiciability, 225 European Committee for the Prevention of
indirect justiciability, 220–21 Torture (CPT), 159n.37
effectiveness of international courts European Convention on Human Rights
generally, 10, 138–39, 152 (ECHR)
compliance compliance, 26–27, 593
defining, 139–41 delegated compliance, 591n.35
evaluating compliance with IACtHR economic, social, cultural, and
decisions, 141–43 environmental rights, 218–19
measuring, 139–41 embeddedness, 86
de facto authority, 145–46, 150 freedom of expression, 500
functions, 143–45 institutionalization, 78
global governance, 145 institutional reform, 91–92
goal-based approach, 144 LGBTQI+ rights, 311–12
ICCAL, 147 life, right to, 290
indigenous rights, 148–52 Protocol No. 1, 95–96
legal sociology, 145 Protocol No. 11, 78, 91–92
LGBTQI+ rights, 152 Protocol No. 15, 92, 96–97
transformative impact beyond compliance remedial practice, 82–83
defining, 143–46 withdrawal, 91, 95–96
IACtHR, 147–48 European Court of Human Rights (ECtHR)
women’s rights, 152 backlash, 583
elderly persons. See older persons compliance, 26–27, 593
El Salvador contempt laws, 481
access to information, 487, 488–89 delegated compliance, 591n.35
amnesty, 540–41, 610 digital freedom of expression, 503
children’s rights, 340, 346–47 documentation strategies, 194
Index 659
duty to investigate, 308 forced labor and trafficking of children, 340

effectiveness, 139 France, ECtHR, 80
impunity, 431–32 Franco, Marielle, 388, 395, 402, 403, 407
institutionalization, 78 freedom of association
institutional reform, 91–92 human rights defenders, 403
judicialization, 80 judicial independence, 459–62
LGBTQI+ rights, 311–12, 316, 321, 325 freedom of expression
life, right to, 290–91 generally, 13, 473–74, 493–94
living instrument doctrine, 80–81 access to information, 478, 479, 485–93
migration, 377 collective dimension, 497–98
noncompliance, 94–95 Country Reports, 475, 479–80
prison conditions, 168–69, 171, 175 COVID-19 pandemic, 494
remedial practice, 82–83 Declaration of Principles on Freedom
reparations, 574 of Expression (see Declaration of
response to backlash, 96–97 Principles on Freedom of Expression)
standard-building function, 182 digital freedom of expression (see digital
volume of cases, 646 freedom of expression)
European Court of Justice (ECJ) friendly settlements, 481
effectiveness, 139 functions, 497
life, right to, 290–91 human rights defenders, 404–5
European Union, human rights defenders, 393 IAHRS legal framework, 497–501
expansion of IAHRS IAHRS standards, 477–79
generally, 14, 603–4, 623–24 ICCAL, 474–77, 493
development of standards individual dimension, 497–98
corruption, 619–23 judicial independence, 459–62
extraterritorial responsibility, 614–18 limitations
transformative impact beyond compliance, generally, 499
604–11 censorship, 478, 499, 509
DPLF strategies, 611–14 child pornography, 499, 509
expected time for compliance (ETC), 566, hate speech, 498–99, 512–13
570–71, 577–78, 578f war propaganda, 498–99
expression. See freedom of expression media regulation, 479
expression, freedom of. See freedom of expression Merits Reports, 475
extractive industries, extraterritorial monopolization of media, 499–500
responsibility, 614–18 Office of the Special Rapporteur for Freedom
extradition, impunity, 428–30 of Expression (see Office of the Special
extraterritorial responsibility, 614–18 Rapporteur for Freedom of Expression)
public interest speech
fair trial, right to, 404 generally, 478, 479–80
family, right to, 292 contempt laws, 480–83
femicide, 107–8 criminal defamation, 483–85
Figueredo, Reinaldo, 611n.31 Leyes de Desacato, 480–83
Figueroa, Ana, 103 rights and duties of public officials, 478
forced disappearances Thematic Reports, 474, 475, 479–80
children’s rights, 344 threats or harm for exercising, 478
economic, social, cultural, and transformative impact, 474–77
environmental rights, 224–25 friendly settlements
human rights defenders, 402 generally, 62–63, 65, 69–70, 80, 113, 115–16
impunity, 426, 428–29, 441–42 compliance, 533–34
international human rights standards, 106–7 freedom of expression, 481
migration, 368–69 healthy environment, right to, 247–48
reparations, 568–69 human rights defenders, 400–1
sexual violence, 277 indigenous rights, 254–55
660 Index
Fujimori, Alberto, 89–90, 182, 409–10, 413n.21, Constitutional Court, 482

419–20, 429, 442, 476–77, 598–99 contempt laws, 481–82
corruption, 621
Galtieri, Leopoldo Fortunato, 627 criminal law, 540–41
Gambia, AFCtHR jurisdiction, 91 healthy environment, right to, 249
Garcia Lucero, Leopoldo, 360–61n.39 human rights defenders, 405
Garrido, Adolfo, 568 human rights violations, 36, 37
Germany impunity, 426–27, 432–33
ECtHR, 94–95 indigenous rights, 263
Federal Constitutional Court, 94–95 Inter-American SIMORE, 68
Ghana, AFCtHR jurisdiction, 91 investigations of human rights violations, 593
Gini coefficient, 50n.3 LGBTQI+ rights, 315
global human rights governance, 101–5 militarization, 54–55
global impact of IAHRS National Reconciliation Act, 558, 558n.67
generally, 9, 100–1 prison conditions, 165
experimentalist approach, 120–21 sexual violence, 274, 281
future trends, 118–21 Guidelines for the Prevention of Juvenile
global human rights governance, 101–5 Delinquency (“Riyadh Guidelines”), 330
international human rights standards, Guyana
105–11 access to information, 487
amnesty, 106–7 healthy environment, right to, 249
dignified life, right to, 108–9
femicide, 107–8 Haiti
impunity, 106–7 children’s rights, 346–47
indigenous rights, 109–11 compliance, 577–78
rape, 107–8 healthy environment, right to, 249
reparations, 106–7 human rights violations, 37
transitional justice, 106–7 migration, 372–73, 374
violence against women (VAW), 107–8 Harper, Stephen, 615
regional systems, 118–20 hate crimes, 307, 309
transnationalized human rights hate speech, 498–99, 512–13
implementation, 111–18 health, right to
domestic courts, role of, 114–15 children’s rights, 339–40, 344–43
human rights actors, pressure from, 114 direct justiciability, 226, 231
states, engagement of, 115–16 older persons, 356–57, 359–60
Global Impunity Index, 52n.17 healthy environment, right to
Goldman, Robert, 636–37 generally, 10–11, 237–40, 252–53
Gonzáles, Claudia Ivette, 275 access to information, 243, 247, 248
Grenada civil society organizations, 240
criminal defamation, 484–85 climate change, 239–40
healthy environment, right to, 249 COVID-19 pandemic, 251
grievances of individuals against nations, 37–39 direct justiciability, 232
Grossi, Vio, 322–23 domestic level, 249–52
Group of Eminent International and Regional friendly settlements, 247–48
Experts on Yemen, 321 human rights, relation to, 237–39
Guatemala ICCAL, 252–53
access to information, 487 indigenous people, 243, 245, 246–48, 250–51
amnesty, 416–17n.45, 557–60, 610 protection, 240–46
attempts to maintain human rights narrative, access to information, 243
42n.38 due diligence, 245–46
Attorney General, 591–92 indigenous rights, 243, 245
Chaab’il Ch’och’ indigenous community, 263 individual and collective right, 244,
children’s rights, 334–35, 340, 346–47 244n.37
compliance, 591–92 state obligations, 246
Index 661
state obligations, 246, 253 forced disappearances, 402

transformative impact, 249–52 friendly settlements, 400–1
Herrera Monreal, Esmeralda, 275 ICCAL, 390, 396, 397, 406
Honduras jurisprudence of IACtHR
access to information, 487 generally, 396–97, 401–2
children’s rights, 340, 346–47 assembly, right of, 404–5
compliance, 592 Escalers Mejía case, 399–406
contempt laws, 481–82 fair trial, right to, 404
corruption, 619 freedom of association, 403
dive fishing, 209, 211, 212–13, 213n.54 freedom of expression, 404–5
Escalers Mejía case humane treatment, right to, 404
legacy, 401–6 judicial protection, right to, 404
overview, 399–401 Kawas Fernández case, 398–99
healthy environment, right to, 249 life, right to, 402
human rights defenders Luna López case, 398
generally, 388, 395, 397 participation in government, right of, 403–4
Escalers Mejía case, 399–406 rule of law, 397, 401, 402
Kawas Fernández case, 398–99 standards, 389–90
Luna López case, 398 Merits Reports, 400
human rights violations, 36, 37 multilevel approach
Inter-American SIMORE, 68 generally, 390
investigations of human rights violations, 593 domestic systems, 394–96
Law on the Protection of Human Rights global system, 391–93
Defenders, Journalists, Social regional systems, 393–94
Communicators, and Justice Officials, protection of rights, 392
395 rights, 392
LGBTQI+ rights, 316 transformative impact, 389, 397
migration, 368–69 violence, 388–89, 395
militarization, 54–55 Human Rights Law Implementation Project
Miskito Divers case, 207–8, 209–10, 211, 212 (HRLIP), 587n.10
prison conditions, 165 hyper-presidentialism, 52
sexual violence, 276
human dignity, 155 IACHR. See Inter-American Commission on
humane treatment, right to Human Rights (IACHR)
human rights defenders, 404 IACtHR. See Inter-American Court of Human
sexual violence, 273n.13 Rights (IACtHR)
Human Rights Committee IAHRS. See Inter-American Human Rights
dignified life, right to, 108–9 System (IAHRS)
judicial independence, 471–72 ICCAL See Ius Constitutionale Commune en
LGBTQI+ rights, 312–13 América Latina (ICCAL)
removal of judges, 462 ICPHROP. See Inter-American Convention on
human rights community of practice, 18, 22–26, the Protection of the Human Rights of
70–71, 642–43 Older Persons (ICPHROP)
Human Rights Council immigration. See migration
corruption, 620 improvement of IAHRS
healthy environment, right to, 238–39 generally, 13, 521, 536, 646–47
LGBTQI+ rights, 321 case selection standards, advancing to
human rights defenders remedy structural situations, 530–32
generally, 12, 388–90, 406, 407 admissibility criteria, 531
autonomous right, 405–6 expedited petitions, 531–32, 646–47
defined, 391 Special Procedural Delay Reduction
Escalers Mejía case Program, 530, 531–32
legacy, 401–6 compliance, promoting, 532–36
overview, 399–401 dialogue, 535–36
662 Index
improvement of IAHRS (cont.) coordinated effort, 267

integral reparation, 534 Country Reports, 254–55, 266
Inter-American SIMORE, 533–34 cultural identity, right to, 255–56, 257
private working meetings, 533–34 direct justiciability of ESCER, 232–33
public hearings, 533–34 effectiveness of international courts, 145–46,
referrals, 534–35 148–52
national capacities, strengthening, 525–29 framing, 213
complementarity, 527 friendly settlements, 254–55
cooperation programs, 529 general standards, 256
internationalization of decisions, 526, 529 healthy environment, right to, 243, 245,
legislative measures, 526 246–48, 250–51
networks of national autonomous systems, indigenous territory, 204n.17
528–29 indirect justiciability of ESCER, 220–22,
normative frameworks, 526, 527–29 223–24
Strategic Objective 3 (SO3), 528 international human rights standards, 109–11
two-prong approach, 526 lands and territories, 232–33, 255–56, 257–59
impunity life, right to, 358
generally, 12, 424–25, 447–48 older persons, 355, 358
activism, 625–26 participation in government, 255–56, 259
Country Reports, 424–25, 627 poverty among indigenous peoples, 51n.4
forced disappearances, 426, 428–29, 441–42 precautionary measures
institutional response, 189–90 generally, 254–56, 260–61
international human rights standards, 106–7 Chaab’il Ch’och’ indigenous community,
in loco visits, 424–25 263
need to investigate serious human rights Siona indigenous people, 262–63
violations “Tres Islas” indigenous community of
generally, 426 Madre de Dios, 261–62
abuse of law, 432–33 progress, 264–66
admissible weightings, 426–28 resources, 257–59
crimes against humanity, 431–32, 630–31, sexual violence, 278–79
631n.19 Thematic Reports, 266
executions, 441–42 violence, 267
extradition, 428–30 indirect justiciability of ESCER. See economic,
extraordinary international supervisory social, cultural, and environmental rights
mechanisms, 439–41 in loco visits
forced disappearances, 441–42 generally, 26–27, 41–43, 62–63
fraudulent res judicata, 426–28 activism strategies, 627, 629–30
humanitarian pardons, 442–43 impunity, 424–25
ne bis in idem, 426–28 Inter-American Commission on Human Rights
penal military jurisdiction, 439 (IACHR)
prevalent classification, 433–34 accountability, ensuring, 584, 586–87
proportionality of punishment, 442–43 analytical framework for transformative
state obligations, 428–30 impact (see analytical framework for
systemic crimes, 434–39 transformative impact)
transformative impact, 443–47 assisting function, 184
transitional justice, 425, 434–39 authoritarianism as challenge, 47
universal jurisdiction, 628 backlog of cases, 45–46, 119, 530
Independent Expert on SOGI, 321 challenges, 44–47, 48
India, transformative constitutionalism, 2 children’s rights, 164–65
Indigenous rights controversial appointments, 636–37
generally, 11, 254–56, 266–67 corruption, 620–22
ancestral territory, 203–4, 204n.17 Country Reports (see Country Reports)
challenges, 264–66 COVID-19 pandemic, 58–61, 58–59n.48
conventionality control, 151–52 creation, 78–79
Index 663
Declaration of Principles on Freedom Protocol of San Salvador (see Additional

of Expression (see Declaration of Protocol to the American Convention
Principles on Freedom of Expression) on Human Rights in the area of
digital freedom of expression (see digital Economic, Social, and Cultural Rights
freedom of expression) (Protocol of San Salvador))
documenting function, 184 provisional measures, 160, 163–65, 556–57
economic, social, cultural, and public hearings, 62–63
environmental rights, 218–19, 236 Rapid and Integrated Response Coordination
Executive Secretariat, 531 Unit, 46–47, 61–62
Fifth Meeting of Consultation of Ministers of Rapporteur on the Rights of Human Rights
Foreign Affairs, 606n.8 Defenders and Justice Operators, 397
friendly settlements (see friendly settlements) Rapporteurship on the Rights of Women, 271
healthy environment, right to (see healthy referrals, 35
environment, right to) Registration Group, 45–46
human rights community of practice, 24–25, Report on the Use of Pretrial Detention, 352–53
643 response to backlash, 97
human rights defenders, 394, 397 role (see role of IACHR)
Impact Observatory, 69, 533–34 Rules of Procedure, 260, 530–31, 532,
indigenous rights (see Indigenous rights) 534–35, 605
informational requirements, 26–27 Second Extraordinary Inter-American
institutional dimension, 67 Conference, 606n.8
institutional elements, 50 selection of commissioners, 635n.25
institutional reform, 92–93 sexual violence (see sexual violence)
Inter-American System to Monitor Sistema de Monitoreo de Recomendaciones
Recommendations (Inter-American Internacionales de Derechos Humanos
SIMORE), 68–69, 533–34 (Inter-American SIMORE), 68, 533–34
Interdisciplinary Group of Independent Specialized Academic Network of
Experts (GIEI), 69–70n.92, 184–85, Cooperation, 69
439–40, 632–35 Special Mechanism to Follow Up on the
international human rights standards, 105–6 Ayotzinapa Matter (MESA), 266, 440,
LGBTQI+ rights (see LGBTQI+ rights) 533–34
in loco visits Special Monitoring System for Nicaragua
generally, 26–27, 41–43, 62–63 (MENESI), 69–70, 70n.93, 440–41, 634–35
activism strategies, 627, 629–30 Special Procedural Delay Reduction
impunity, 424–25 Program, 530, 531–32
low levels of compliance, 4–5, 584, 604–6 Special Program to Monitor IACHR
Merits Reports (see Merits Reports) Recommendations, 604–5
MESEVE, 533–34 Special Rapporteurship on Economic, Social,
migration (see migration) Cultural, and Environmental Rights, 217
monitoring compliance, 97n.97, 113, 142–43 Special Rapporteurships, 34–35, 42, 69
Office of the Special Rapporteur for Special Study on the Right of Access to
Freedom of Expression (see Office of Information, 490, 493
the Special Rapporteur for Freedom of standard-building function, 182
Expression) states, engagement, 115–16
petitions, 42–44 Strategic Objective 3 (SO3), 528
positioning function, 183 Strategic Plan 2011–2015, 604
precautionary measures (see precautionary Strategic Plan 2017–2021, 528, 529, 530, 532,
measures) 604, 604n.2
Principles and Best Practices on the Thematic Reports (see Thematic Reports)
Protection of Persons Deprived of transformative impact (see transformative
Liberty in the Americas, 156n.17, impact)
168–69 victim-centric approach, 63
prison conditions, 163–64 violence as challenge, 47
Procedural Delay Group, 45–46 in vitro fertilization (IVF), 285–86
664 Index
Inter-American Conference on Problems of digital freedom of expression (see digital

War and Peace, 102, 103–4 freedom of expression)
Inter-American Convention against All Forms of dignified life, right to, 108–9
Discrimination and Intolerance, 350, 354 directing function, 181, 182
Inter-American Convention against domestic courts, 114–15
Corruption, 620 economic, social, cultural, and environmental
Inter-American Convention on the Prevention, rights (see economic, social, cultural, and
Punishment and Eradication of environmental rights)
Violence against Women (Convention effectiveness
of Belém do Pará) evaluating compliance with IACtHR
generally, 350, 354 decisions, 141–43
LGBTQI+ rights, 322–23 impact beyond compliance, 147–48
sexual violence, 270–71, 272, 276, 283 embeddedness, 86–87
violence against women (VAW), 107–8 engagement of states, 115–16
Inter-American Convention on the Protection extraterritorial responsibility, 617–18
of the Human Rights of Older Persons Fireworks Factory case, 207–9, 210, 212
(ICPHROP) flexibility, 32–33
generally, 348, 350, 354–55 freedom of expression (see freedom of
adoption, 350, 354 expression)
equality, 355–56 healthy environment, right to (see healthy
health, right to, 356–57 environment, right to)
liberty, right to, 352 high levels of engagement, 18
life, right to, 356–57 human dignity, 155
nondiscrimination, 355–56 human rights community of practice, 23–24,
personal freedom, right to, 355–56 25–26, 643
proportionality, 353–54 human rights defenders (see human rights
ratification, 354 defenders)
safety, right to, 356–57 impunity (see impunity)
Inter-American Convention to Prevent and indigenous rights (see Indigenous rights)
Punish Torture, 282, 284 inducing compliance, 26–29
Inter-American Court of Human Rights (IACtHR) institutional dimension, 67, 68–70
accountability, 584, 586–87 institutional elements, 50
advisory opinions international human rights standards, 105–6
generally, 180–81 judicial independence (see judicial
LBGTQI+ rights, 550–56 independence)
migration, 178, 181, 375t judicialization, 80
transformative impact, 548–49 LGBTQI+ rights (see LGBTQI+ rights)
amnesty, 66n.80, 106–7 life, right to (see life, right to)
analytical framework for transformative living instrument doctrine, 80–81
impact (see analytical framework for low levels of compliance, 5, 17, 18, 584, 604–6
transformative impact) margin of appreciation, 97–99
assisting function, 184 migration (see migration)
backlog of cases, 119 Miskito Divers case, 207–8, 209–10, 211, 212
children’s rights (see children’s rights) monitoring compliance, 97n.97, 113, 142–43,
conventionality control (see conventionality 591–94
control) narrative of human rights impact (see
corruption, 621 narrative of human rights impact)
Cotton Field case, 107–8, 207–8, 210, 211 noncompliance, 94–95
creation, 78–79 older persons (see older persons)
Criminal Institute of Plácido de Sá Carvalho positioning function, 183
(Brazil), 153–54, 155, 167–73, 174t, 175 preventive detention, 159
deprivation of liberty, 155–56 prison conditions, 158–59, 163–64
detainees, 157 provisional measures (see provisional measures)
Index 665
rape, 157–58 institutional resilience, 642, 644, 645–46

referrals, 35 key elements
reframing function, 183–84 generally, 62–63
remedial practice, 83–84 reparations, 64–65
reparations, 29–30, 64–65, 64n.72, 106–7 standards, 63–64
response to backlash, 97–98 victim-centric approach, 63
selection of judges, 635n.25 monitoring pillar, 523, 606
Sentence Compliance Oversight Unit, 538n.7 need
sentences, 180–81 anti-LGBTQI+ groups, 56–57
sexual violence (see sexual violence) contemporary challenges, 53–57
Special Monitoring Mechanism for corruption, 51–52, 52n.12
Nicaragua, 69–70, 70n.93 COVID-19 pandemic, 57–62
standard-building function, 182 democracy, declining support, 53–54
standards, 64 hyper-presidentialism, 52
transformative impact of decisions (see militarization, 54–56
transformative impact) populism, 53, 54
transitional justice (see transitional justice) rule of law, 51–52
victim-centric approach, 63 structural challenges, 50–52
violence against women (VAW), 107–8 violence, 51
in vitro fertilization (IVF), 285, 286–87 promotion pillar, 606
Inter-American Democratic Charter (IADC), protection pillar, 606
241–42, 459–60, 474–75 robust IAHRS, 522–25
Inter-American Human Rights Network, 147–48 cases and petitions, 523
Inter-American Human Rights System monitoring, 523
(IAHRS). See also specific topic or entity progressive development of international
generally, 1, 9, 49–50, 74–75, 473n.2 human rights law, 524
amnesty, 66n.80 standards, 523–24
analytical framework for transformative technical assistance, 523
impact (see analytical framework for victim-oriented nature, 524
transformative impact) sociopolitical dimension, 70–71
cases and petitions, 523 civil society organizations, 71
compliance (see compliance) human rights community of practice,
constructive engagement, 642–43 70–71
cultural dimension, 71–73 stakeholders, 642–43
academic institutions, 72, 73 standards
educational system, 72 generally, 63–64
state action, 72–73 corruption, 619–23
expansion defined, 606–7
generally, 14, 603–4, 623–24 extraterritorial responsibility, 614–18
corruption, 619–23 freedom of expression, 477–79
DPLF strategies, 611–14 migration, 384–87
extraterritorial responsibility, 614–18 robust IAHRS, 523–24
transformative impact beyond compliance, sexual violence (see sexual violence)
604–11 transformative impact beyond compliance,
First Forum of the Inter-American Human 604–11
Rights System, 621–22 technical assistance, 523
global impact (see global impact of IAHRS) transformative impact (see transformative
human rights community of practice, 23, impact)
642–43, 644 transitional justice (see transitional justice)
improvement (see improvement of IAHRS) victim-centric approach, 63, 643–44
institutional dimension, 67–70 victim-oriented nature, 524
implementation mechanisms, 67 Inter-American Juridical Committee, 102
programs of cooperation, 68–69 International Court of Justice (ICJ), 237
666 Index
International Covenant on Civil and Political state healthcare system, 301

Rights (ICCPR) transformative impact, 541–44
access to information, 492 IACtHR decision, 285–87, 301–2
freedom of expression, 500 Merits Reports, 286
hate speech, 513 new legal standards, 292–94
LGBTQI+ rights, 312–13 transformative impact, 541–44
life, right to, 289–90 Iribarne, Palamara, 481–82
withdrawal, 87n.56 Istanbul Protocol, 443
International Covenant on Economic, Social Italy
and Cultural Rights (ICESCR) ECtHR, 80
Committee on Economic, Social and Cultural prison conditions, 171
Rights (CESCR), 313 Ius Constitutionale Commune en América
direct justiciability, 228 Latina (ICCAL), 1–3. See also specific
economic, social, cultural, and topic or entity
environmental rights, 218–19 generally, 473–74
healthy environment, right to, 237–38 common law, 200–1
LGBTQI+ rights, 313 cultural dimension of IAHRS, 73
International Criminal Court (ICC), 119–20 dimensions, 1–2
international human rights standards, 105–11 effectiveness of international courts, 147
amnesty, 106–7 freedom of expression, 474–77, 493
dignified life, right to, 108–9 healthy environment, right to, 252–53
femicide, 107–8 human rights defenders, 390, 396, 397, 406
impunity, 106–7 implications beyond Latin America, 2–3
indigenous rights, 109–11 interplay between domestic law and IAHRS,
rape, 107–8 581
reparations, 106–7 narrative of human rights impact (see
transitional justice, 106–7 narrative of human rights impact)
violence against women (VAW), 107–8 specific to Latin America, 2
International Labour Organization transformative constitutionalism, 4–7
child pornography, 499 generally, 641
occupational safety and health, 235 actors, 6
International Network for Economic, Social and impact beyond compliance, 6
Cultural Rights (ESCR-Net), 605n.5 tools, 5–6
International Organization for Migration transitional justice, 408, 423
(IOM), 368–69 IVF. See in vitro fertilization (IVF)
Internet. See digital freedom of expression
intersectionality Jamaica
narrative of human rights impact, 208–9, criminal defamation, 484–85
210–11, 212 healthy environment, right to, 249
older persons, 352, 352n.14, 362 human rights violations, 87n.56
sexual violence, 277–80 judicial independence
in vitro fertilization (IVF) generally, 12–13, 449–50, 472
generally, 25–26, 189, 191, 223, 301–2 Basic Principles on the Independence of the
Artavia Murillo case Judiciary, 451–52, 453, 459–60, 461, 462
generally, 25–26, 189, 191, 223 consequences of violations
annulment of prohibition, 297–300, 542, generally, 467
542n.18 damages, 468–70
IACtHR decision, 285–87, 301–2 judges, reparations for, 468–70
inspection and quality controls, 300–1 parties, reparations for, 470–72
regulation, 300–1 reinstatement, 468–70
reparations, 295–96, 302 disciplinary systems, 462–65
reproductive rights, training judiciary, elements
296–97 generally, 453
Index 667
external pressure, protection, 456–58 background, 304

irremovability principle, 456–58 community impacts, 322–24
permanence in office, 454–56 duty to investigate violence, 308
political right of access, 454–56 impact, 319–25
selection and appointment of judges, justice impacts, 320–21
453–54 legal impacts, 321–22
freedom of association, 459–62 material impacts, 320–21
freedom of expression, 459–62 movement impacts, 322–24
impeachment, 465–67 reflections, 324–25
individual dimension, 452–53 reparations, 309–10
institutional dimension, 452–53 torture based on sexual orientation or
objective dimension, 452–53 gender identity, 307
obligation of effective judicial protection of truth impacts, 320–21
human rights effectiveness of international courts, 152
essential content, 450 framing, 213
independent judges and tribunals, 451–53 hate crimes, 307, 309
provisional judges, 458–59 hate speech, 513
removal of judges, 462–65 IACtHR advisory opinions
subjective dimension, 452–53 context, 550–52
judicial protection, right to, 404 Costa Rica, 552–54
jus cogens Ecuador, 554–56
amnesty, 415 international protection
migration, 370 generally, 310–11
justice, right to, 103 Africa, 314
juvenile justice, 339 cross-fertilization across systems, 316–17
Europe, 311–12
Kawas Curry, Jacobo Roberto, 398 IAHRS, 314–16
Kawas Fernández, Blanca Jeannette, 398–99 UN, 312–13
Kawas Fernández, Carmen Marilena, 398 name change for trans persons, 553–54
Kawas Fernández, Jacobo Roberto, 398 non-refoulement, 321
Kawas Fernández, Jorge Jesús, 398 older persons, 356
kidnappings. See forced disappearances same-sex marriage, 552–53, 554–56, 582–83
Kimel, Eduardo, 476 sexual violence, 280, 307
Knox, John H., 238–39 SOGI-based violence, 303–4, 310
strategic litigation, 317–19
labor unions attitude shifts, 318
direct justiciability of ESCER, 225 community impacts, 318, 322–24
indirect justiciability of ESCER, 224 justice impacts, 318, 320–21
Lambruschini, Armando, 627 legal impacts, 318, 321–22
Larreta, Eduardo Rodriguez, 103–4 material impacts, 318, 320–21
Larreta Proposal, 103–4 movement impacts, 318, 322–24
Latinobarómetro, 53–54 policy and governance impacts, 318
legal norms, 606–7, 607n.10 social impacts, 318
legal positivism, 607–8 truth impacts, 318, 320–21
Leyes de Desacato, 480–83 transformative impact, 550–56
LGBTIQ+ Litigants Network of the Americas, violence against LGBTQI+ persons, 303–4,
322 310
LGBTQI+ rights liberty, right to, 352, 360–61
generally, 11, 303–5, 325 life, right to
anti-LGBTQI+ groups, 40n.26, 56–57 generally, 287–88, 291–92
Azul Rojas Marin case children, 340–43, 342n.103, 343n.111
generally, 305–6 evolutive interpretation, 290–91
arbitrary detention, 306–7 human rights defenders, 402
668 Index
life, right to (cont.) Merits Reports

indigenous people, 358 generally, 179, 180–81, 523
most favorable interpretation, 291 case selection, 530
older persons, 356–57, 358–59 compliance, 533–36, 605
ordinary meaning of terms, 288 directing, 181
systematic and historical interpretation, freedom of expression, 475
288–90 human rights defenders, 400
teleological interpretation, 291 migration, 369, 377
living instrument doctrine, 80–82 in vitro fertilization (IVF), 286
Lopez Obrador, Andrés Manuel, 634–35 Mestizo, Jesús, 265–66
Luna López, Carlos Antonio, 398 metrics of compliance. See measuring
Lutz, Bertha, 103 compliance
Mexico
Maduro, Nicólas, 40, 476–77 access to information, 491–92
Malawi, AFCtHR jurisdiction, 91 anti-LGBTQI+ groups, 56
Mali, AFCtHR jurisdiction, 91 Attorney General, 632–33
“Mandela Rules,” 156n.11, 156n.17, 168–69 children’s rights, 340
margin of appreciation, 97–99 compliance, 575, 577, 592
Martin de Mejia, Raquel, 272–73 Constitution, 101–2
Massera, Emilio Eduardo, 627 corruption, 619
Max Planck Institute for Comparative Public Cotton Field case, 107–8, 207–8, 210, 211
Law, 73 criminal defamation, 484–85
measuring compliance democracy, declining support, 53–54
generally, 13, 564–66, 580–81 DPLF, 612, 622
average time to compliance, 570, 575 Executive Commission for Attention to
backlash, 582–83 Victims, 634
compliance life cycle, 566, 578f, 578–80 Federal Institute of Access to Public
compliance versus impact, 580–81 Information, 491
conventional measures, 573t Federal Law on Transparency and Access to
direct transformative impact, 581 Public Government Information, 491
discrete-time measures of compliance, 566, 576t forced disappearances, 632–35
discussion, 571–74 freedom of expression, 476
expected time for compliance (ETC), 566, Guerreros United cartel, 632–33
570–71, 577–78, 578f healthy environment, right to, 246, 249, 250
indirect transformative impact, 581–82 human rights defenders, 395
limitations, 586–87 human rights violations, 540–41
qualitative studies, 587–90 impunity, 439–40
quantitative studies, 585–87 indigenous rights, 264
rate of compliance, 569–70, 574 Interdisciplinary Group of Independent
resistance, 582 Experts (GIEI), 69–70n.92, 184–85,
time 439–40, 632–35
causes of compliance, 569 investigations of human rights violations, 593
discrete-time measures of compliance, LGBTQI+ rights, 322
566, 576t migration, 369–70, 384–85
importance, 568 militarization, 54–55
legal outcomes, 568–69 military reforms, 443
static “snapshot” approach versus, 567–68 National Commission on Human Rights, 634
yearly probability of compliance, 566, 570, National Human Rights Commission, 250
577 National Institute of Transparency, Access to
media regulation, 479 Information, and Protection of Personal
Mejia Egocheaga, Fernando, 272 Data, 491
Méndez, Juan, 307, 424, 636–37 Protocol for the Adjudication of Cases with a
Menem, Carlos, 410n.7 Gender Perspective, 322
Mercedes Gómez, Maria, 306–7 reparations, 211
Index 669
sexual violence, 275–76, 279, 281, 282–83, communities of practice, 200–1

284 framing, 201–2, 204–6
Special Mechanism to Follow Up on the narratives in practice
Ayotzinapa Matter (MESA), 266, 440, generally, 207–8
533–34 Cotton Field case, 107–8, 207–8, 210, 211
Supreme Court of Justice, 322, 484–85, defining problem, 208–10
491–92 diagnosis of causes, 210–11
violence against women (VAW), 107–8, Fireworks Factory case, 207–9, 210, 212
182–83, 207–8, 210, 211 impact, 212–13
migration intersectionality, 208–9, 210–11, 212
generally, 12, 366–67, 387 Miskito Divers case, 207–8, 209–10, 211, 212
COVID-19 pandemic, 560–61 remedies defined, 211–12
defining migrant, 367 National Security Doctrine, 36
economic, social, cultural, and Native Americans. See Indigenous rights
environmental rights, 378 ne bis in idem, 426–28
forced disappearances, 368–69 net neutrality, 506–8
IACtHR Nicaragua
advisory opinions, 370, 375–76, 375t access to information, 487
asylum, 375–76 attempts to maintain human rights narrative,
contentious cases, 373t 40, 42n.38, 48
jus cogens status, 370 children’s rights, 340
non-refoulement, 369, 372–73, 375–76, communities of practice, 23–24
377, 380–82, 382n.74, 385–86 contempt laws, 481–82
IAHRS criminal defamation, 484–85
generally, 367–68 DPLF, 612
development and expansion of standards, healthy environment, right to, 249
372–77 human rights violations, 37
initial reactions, 369–72 indigenous rights, 150, 195–96, 540–41
pending issues, 377–78 sexual violence, 279–80
recognition of standards, 384–87 Special Monitoring System for Nicaragua
silence, 368–69 (MENESI), 69–70, 70n.93, 440–41,
Merits Reports, 369, 377 634–35
sovereignty, 366 thematic reports, 42–43
transformative impact Nigeria, right to healthy environment, 238n.9
generally, 378 Ni Una Menos (NGO), 636
normative frameworks, 378–83, 381t Nohlen, Dieter, 54n.28
provisional measures, 560–62 nondiscrimination
recognition of IAHRS standards, 384–87 children, 274, 339
vulnerable group, migrants as, 372, 377 digital freedom of expression, 505–6
military courts, 55, 89–90 discrimination defined, 355n.26
minors. See children’s rights economic, social, cultural, and
Molina, Boris, 542n.18 environmental rights, 222–23
Montaño Noscué, José Norman, 265–66 older persons, 355–56
Montaño Noscué, Matias, 265–66 non-refoulement
Montesinos Torres, Vladimiro, 599 LGBTQI+ rights, 321
Morales, Evo, 55 migration, 369, 372–73, 375–76, 377, 380–82,
382n.74, 385–86
“naming and shaming,” 115–16 transformative impact, 561
narrative of human rights impact
generally, 10, 199–200, 214 OAS. See Organization of American States
cognitive categories, 201–4 (OAS)
ancestral territory, 203–4 obligation to investigate, 38–39
defining problem, 208–10 Office for Democratic Institutions and Human
victims, 202–3 Rights (ODIHR), 393
670 Index
Office of the Special Rapporteur for Freedom of Organization for Security and Cooperation in
Expression Europe (OSCE)
generally, 474–75, 476–77, 477–78n.23 digital freedom of expression, 496
access to information, 485–86, 490, 492, 493 human rights defenders, 393
Annual Reports, 500 Organization of American States (OAS)
content blocking, 509 generally, 34–35
criminal defamation, 483, 485 Charter, 101–2, 104, 227, 228, 241–42,
digital freedom of expression, 495, 496, 503 254n.3, 256, 522
filtering, 509 during Cold War, 78–79
intermediary liability, 511 compliance, 564–65, 591–92
net neutrality, 506, 508 corruption, 620
privacy, 515 economic, social, cultural, and
public interest speech, 479–80 environmental rights, 217
subsequent liability, 511–12 elections, 56n.36
threats to mandate, 631–32 extraterritorial responsibility, 617
universal Internet access, 505–6 Fifth Meeting of Consultation of Ministers of
Office of the UN High Commissioner for Foreign Affairs, 522–23
Human Rights, 621–22 Follow-Up of Recommendations
older persons Section, 69
generally, 12, 348–51, 363–65 healthy environment, right to, 241–42
IACtHR human rights defenders, 393–94
generally, 351, 358 indigenous rights, 254n.3
health, right to, 359–60 Inter-American Model Law on Access to
indigenous people, 358–59 Public Information, 487
liberty, right to, 360–61 LGBTQI+ rights, 310, 315–16
life, right to, 358–59 Permanent Council, 92–93
security, right to, 360–61 prison conditions, 168
ICPHROP Ortega, Daniel, 440–41
generally, 348, 350, 354–55 Oviedo Convention for the Protection of
equality, 355–56 Human Rights and Dignity of the
health, right to, 356–57 Human Being with regard to the
indigenous people, 355 Application of Biology and Medicine,
integration of standards, 363–64 290–91
LGBTQI+ persons, 356
liberty, right to, 352 pacta sunt servanda, 524, 525
life, right to, 356–57 Pact of San José. See American Convention on
nondiscrimination, 355–56 Human Rights (ACHR)
personal freedom, right to, 355–56 Pan-African Reparation Initiative, 323–24
proportionality, 353–54 Panama
safety, right to, 356–57 compliance, 572–74, 592
security, right to, 352 contempt laws, 481–82
intersectionality, 352, 352n.14, 362 criminal defamation, 484–85
Latin America, 349n.9 healthy environment, right to, 249
LGBTQI+ rights, 356 Immigration Reception Stations, 561
long-term services, 356, 357, 357n.30 migration a, 377, 560–62
preventive detention, 351–54, 361, 362, 363, 364 Pan American Health Organization, 261
Riffo Salinas case, 351–54, 361, 362, 363, 364 Paniagua, Valentín, 597–98
social constructions, 348, 351, 361–63 Paraguay
Organisation of African Unity (OAU) access to information, 487, 488
generally, 76–77 attempts to maintain human rights narrative,
First OAU Ministerial Conference on Human 42n.38
Rights in Africa, 394 children’s rights, 340
human rights defenders, 394 communities of practice, 23–24
Index 671
compliance, 577–78, 592 duty to investigate violence, 308

Country Reports, 184 impact, 319–25
health, right to, 359 justice, truth, and material impacts,
healthy environment, right to, 249 320–21
human rights violations, 37 legal impact, 321–22
impunity, 428–29 material impacts, 320–21
indigenous rights, 151, 220–21, 358 movement impact, 322–24
Inter-American SIMORE, 68 reflections, 324–25
LGBTQI+ rights, 57 reparations, 309–10
life, right to, 358 torture based on sexual orientation or
migration, 371–72, 378, 379–80 gender identity, 307
Ministry of Education and Sciences, 57 truth impacts, 320–21
older persons, 359, 361–62 migration, 373–74, 380, 382–83, 386
Operation Condor, 428–29 militarization, 55
Supreme Court of Justice, 488 military courts, 89–90
partial compliance, 586, 587 military reforms, 443
participation in government, right of National Intelligence Service, 597
human rights defenders, 404–5 “Plan Ambulante,” 597
indigenous people, 255–56 procedural rights, 221
Peña Nieto, Enrique, 633 Prosecutor’s Office, 598
personal freedom, right to, 355–56 reparations, 67n.83, 309–10
personal liberty, right to, 292 sexual violence, 272–74, 280, 282, 284
Peru “Tres Islas” indigenous community of Madre
amnesty de Dios, 261–62
compliance, 597–99, 609–10 withdrawal from IAHRS, 89–90
transformative impact, 540–41, 559, 581 Peteche, Dora Rut Mesa, 265–66
transitional justice, 409–10, 412–14, Peteche Mensa, Crescencio, 265–66
413n.21, 413n.23, 419–20, 421–22, 423 Pew Research Center, 53–54
anti-LGBTQI+ groups, 56 Piñera, Sebastián, 379–80
Army Intelligence Service, 597 Pinochet, Augusto, 36, 65n.79, 379–80, 414–15
children’s rights, 340 Poblete Cilches, Vinicio Antonio, 358–59n.33
Constitution, 419n.58 precautionary measures
Constitutional Court, 151–52, 419–20, generally, 30–31, 62–63
419–20n.60 adjudicatory instruments, 180–81
constitutional law, 588–89 challenges, 45
corruption, 619 children’s rights, 329–32
criminal defamation, 484–85 guardianship function, 261
direct justiciability of ESCER, 226, 227–35 indigenous rights
DPLF, 612, 622 generally, 254–56, 260–61
grievances of individuals, 38 Chaab’il Ch’och’ indigenous
Grupo Colina, 38 community, 263
healthy environment, right to, 249 Siona indigenous people, 262–63
IACtHR decisions not enforced, 89–90 “Tres Islas” indigenous community of
impeachment of judges, 465–67 Madre de Dios, 261–62
impunity, 429, 432, 442–43 precautionary function, 261
indigenous rights, 151–52, 261–62 preventive detention, 159
investigations of human rights violations, 593 Principles and Guidelines on the Right to a Fair
Lagos del Campo case, 227 Trial and Legal Assistance in Africa, 463
LGBTQI+ rights prison conditions, 158–59, 161, 162–67
generally, 305–6 private life, right to, 292
arbitrary detention, 306–7 Promsex (NGO), 305–6, 305n.9, 322, 325
background, 304 property, right to, 224–25
community impact, 322–24 proportionality and impunity, 442–43
672 Index
Protocol of San Salvador. See Additional international human rights standards, 106–7
Protocol to the American Convention in vitro fertilization (IVF), denial of right,
on Human Rights in the area of 295–96, 302
Economic, Social, and Cultural Rights judicial independence, violations
(Protocol of San Salvador) judges, 468–70
provisional judges, 458–59 parties, 470–72
provisional measures key element of IAHRS, 64–65, 64n.72
generally, 10, 153–55, 175 low levels of compliance, 176
adjudicatory instruments, 180–81 non-repetition, 540–41, 540n.11
case study, 153–54, 155, 167–73, 174t, 175 transformative impact, 539–41
children’s rights, 164–65, 329–32 violence against women (VAW), 211
Criminal Institute of Plácido de Sá Carvalho repressive law, 19–20
(Brazil), 153–54, 155, 167–73, 174t, 175 reproductive autonomy, 293
deprivation of liberty, 155–59, 161 reproductive rights
extreme gravity and urgency, 556–57, generally, 11
557n.62 abortion, 294–95
legal basis, 160–61 degree of interference in exercise of rights,
preventive measures, 160 293–94
prison conditions, 158–59, 161, 162–67 family, right to, 292
protective measures, 160 indirect justiciability, 222, 223–24
transformative impact life, right to
generally, 556–57 generally, 287–88, 291–92
amnesty, 557–60 evolutive interpretation, 290–91
migration, 560–62 most favorable interpretation, 291
transformative provisional measures, 161–63 ordinary meaning of terms, 288
urgency, 161 systematic and historical interpretation,
public interest speech 288–90
generally, 478, 479–80 teleological interpretation, 291
contempt laws, 480–83 new legal standards, 292–94, 301–2
criminal defamation, 479, 483–85 personal liberty, right to, 292
Leyes de Desacato, 480–83 private life, right to, 292
reproductive autonomy, 293
Rabat Plan of Action, 513 transformative impact, 287
Ramos Monárrez, Laura Berenice, 275 in vitro fertilization (IVF) (see in vitro
rape as torture, 107–8, 157, 282–83 fertilization (IVF))
rate of compliance, 569–70, 574 res interpretata, 122–23, 129–36, 137
realist international relations, 594 res judicata
Red Guerrerense de Organismos Civiles de conventionality control, 122–23, 129–37
Derechos Humanos (NGO), 633 impunity, fraudulent res judicata, 426–28
REDRESS (NGO), 305–6, 305n.7, 317–18, 325 Responsibility to Protect, 104–5
Regional Agreement on Access to Information, responsive law, 19–21
Public Participation and Justice in Revoredo Marsano, Guillermo Rey Terry y
Environmental Matters in Latin America Delia, 466–67
and the Caribbean (Escazu Agreement), rights of the child. See children’s rights
240–41, 240n.20, 248, 249, 252 Rio Declaration on Environment and
reparations Development, 237
generally, 29–30 Rivera Lazo, Juan Norberto, 599
children’s rights, 337 “Riyadh Guidelines,” 330
direct justiciability, 234–35 role of IACHR, 34–35
economic, social, cultural, and generally, 9
environmental rights, 234–35 overview, 47–48
forced disappearances, 568–69 attempts to maintain human rights
integral reparation, 534 narrative, 39–42
Index 673
challenges, 44–47, 48 social media

grievances of individuals against nations, generally, 496, 517n.77
37–39, 47–48 abuse, 502
improving inclusion and participation in hate speech, 512
political system, 42–44, 47–48 intermediary liability, 510
maintaining human rights focus among social protest, use of force, 638–39
dictatorships, 36–37, 47–48 social security, right to, 232
Rubens Graffigna, Omar Domingo, 627 Soria Espinoza, Carmelo, 193
rule of law Soto, James Wilfredo, 265–66
human rights defenders, 397, 401, 402 Soto, José Gerardo, 265–66
need for IAHRS, 51–52 South Africa, transformative
Rule of Law Index, 51–52, 51n.10 constitutionalism, 2
Russia Spain
Constitutional Court, 94–95 National High Court, 628
Council of Europe, 78 universal jurisdiction, 628
ECtHR, 92, 94–95, 583 Special Rapporteur of the United Nations on the
Rwanda, withdrawal from AFCtHR Independence of Judges and Lawyers, 620
jurisdiction, 91 Special Rapporteur on Freedom of Expression,
515–16
safety, right to, 356–57 speech. See freedom of expression
Saint Kitts and Nevis, right to healthy Standard Minimum Rules for Non-custodial
environment, 249 Measures (“Tokyo Rules”), 330
Saint Lucia, right to healthy environment, 249 Standard Minimum Rules for the Administration
Saint Vincent and the Grenadines, right to of Juvenile Justice (“Beijing Rules”), 330
healthy environment, 249 Standard Minimum Rules for the Treatment of
Salazar Monroe, Julio, 599 Prisoners, 156n.11, 156n.17, 168–69
Santiago Declaration, 522–23 Stockholm Declaration, 237
secondary norms, 607 street children, 342n.103
Second World Conference on Human Rights, 270 subsidiarity, 24–25
security, right to, 352, 360–61 substantive equality, 7
self-defence, 202n.10 Suriname
sexual orientation and gender identity (SOGI)- healthy environment, right to, 249
based violence, 303–4, 310 human rights violations, 37
sexual violence. See also violence against indigenous rights, 138
women (VAW) surveillance, 514–16
generally, 11, 268, 284 Switzerland, ECHR, 86
children, 346
forced disappearances, 277 Tanta Marin, Juana Rosa, 306
IAHRS standards Tanzania, withdrawal from AFCtHR
generally, 272 jurisdiction, 91
enhanced due diligence, 275–77 Tasquinas, Rogelio, 265–66
gender stereotypes, 280–81 Thematic Reports
intersectionality, 277–80 generally, 42–43, 47–48, 62–63, 105–6, 528,
recognition as violation of human rights, 533–34
272–75 compliance, 606, 610–11
state responsibility, 282–83 corruption, 621–22
stringent due diligence, 275–77 digital freedom of expression, 496, 503
indigenous people, 278–79 economic, social, cultural, and
indirect justiciability, 223–24 environmental rights, 243, 247
international human rights law framework, extraterritorial responsibility, 615–18
268–71 freedom of expression, 474, 475, 479–80
LGBTQI+ persons, 280, 307 indigenous rights, 266
rape as torture, 107–8, 157, 282–83 social protest, use of force, 638–39
674 Index
“Tokyo Rules,” 330 healthy environment, right to, 249–52

Toronto Stock Exchange, 615 human rights defenders, 389, 397
torture impunity, 443–47
rape as torture, 107–8, 157, 282–83 LGBTQI+ rights, 550–56
sexual orientation or gender identity, 307 migration
trade unions generally, 378
direct justiciability of ESCER, 225 normative frameworks, 378–83, 381t
indirect justiciability of ESCER, 224 provisional measures, 560–62
transformative constitutionalism recognition of IAHRS standards, 384–87
generally, 32–33 non-refoulement, 561
flexibility, 32–33 provisional measures
human rights community of practice, 22–26 generally, 556–57
ICCAL, 4–7 amnesty, 557–60
generally, 641 migration, 560–62
actors, 6 reparations, 539–41
impact beyond compliance, 6 reproductive rights, 287
tools, 5–6 in vitro fertilization (IVF), 541–44
Latin America, 19–21 transitional justice
substantive equality, 7 generally, 12, 408–9, 422–23
transformative impact beyond compliance, amnesty
6, 29–32 generally, 38–39, 39n.23, 66n.80, 409
transformative impact conventionality control, 417–19
generally, 13, 65–67, 74–75, 537–39, 562–63, domestic reception of IACtHR
644–47 jurisprudence, 419–22
advisory opinions jurisprudence of IACtHR, 412–19
generally, 548–49 jus cogens status of law, 415
LGBTQI+ rights, 550–56 nullification of laws, 416–17, 418–20
amnesty, 540–41, 557–60, 581, 609–10 past human rights violations, 409–11
analytical framework (see analytical procedural legitimacy, 422
framework for transformative impact) standards, 412–19, 423
beyond compliance defined, 408–9
generally, 13–14, 584–85, 595, 601–2 distributive dimension, 409, 413–14, 416, 423
amnesty, 609–10 ICCAL, 408, 423
change over time, 595–96 impunity, 425, 434–39
defining, 143–46 international human rights standards, 106–7
IACtHR, 147–48 multilevel legal system standards, 411–12
institutional impact, 600–1 past human rights violations, 409–11
quality of compliance, improving, 596–600 restorative dimension, 409, 413–14, 416, 423
standards, 604–11 retributive dimension, 409, 413–14, 416, 423
transformative constitutionalism, 6, 29–32 transnationalized human rights
children’s rights, 327 implementation, 111–18
Chilean Councils of War, 544–47 engagement with states, 115–16
communities of practice, 642–43 pressure from human rights actors, 114
contentious cases role of domestic courts, 114–15
generally, 547–48 Transparency International, 51–52
Chilean Councils of War, 544–47 Trinidad and Tobago
reparations, 539–41 compliance, 577–78
in vitro fertilization (IVF), 541–44 healthy environment, right to, 249
Country Reports, 177, 179, 182, 183, 184, withdrawal from IAHRS, 88, 582
186, 197 Tunisia, AFCtHR jurisdiction, 91
freedom of expression, 474–77 Twelfth UN Congress on Crime Prevention and
future research, 646 Criminal Justice, 165
Index 675
2030 Agenda for Sustainable Development, human rights defenders, 394, 397
236, 240 Independent Expert on SOGI, 321
LGBTQI+ rights, 312–13, 316
UDHR. See Universal Declaration of Human “Mandela Rules,” 156n.11, 156n.17, 168–69
Rights (UDHR) Office of the UN High Commissioner for
Ukraine in Council of Europe, 78 Human Rights, 621–22
UNICEF, 235 “Riyadh Guidelines,” 330
unions Special Rapporteur of the United Nations
direct justiciability of ESCER, 225 on the Independence of Judges and
indirect justiciability of ESCER, 224 Lawyers, 620
Uniscue, Eliodoro, 265–66 Special Rapporteur on Freedom of
United Kingdom Expression, 515–16
Brexit, 95–96 Standard Minimum Rules for Non-custodial
ECtHR, 80, 92, 95–97, 583 Measures (“Tokyo Rules”), 330
Human Rights Act 1998, 95–96 Standard Minimum Rules for the
Privy Council, 87n.56, 88 Administration of Juvenile Justice
Representation of the People (“Beijing Rules”), 330
Act 1983, 95–96 Standard Minimum Rules for the Treatment
withdrawal from ECHR, 91, 95–96 of Prisoners, 156n.11, 156n.17, 168–69
United Nations “Tokyo Rules,” 330
Basic Principles on the Independence of the Twelfth UN Congress on Crime Prevention
Judiciary, 451–52, 453, 459–60, 461, 462 and Criminal Justice, 165
“Beijing Rules,” 330 2030 Agenda for Sustainable Development,
budget crisis, 119–20 236, 240
Charter, 102–3, 202n.10, 394 UNICEF, 235
Committee against Torture (CAT), 313 Working Group on Arbitrary Detention,
Committee on Economic, Social and Cultural 306–7, 316
Rights (CESCR), 313 United States
Conference on the Human Environment, 237 access to information, 494
Convention against Corruption, 620 Brown v. Board of Education (1954), 20–21, 581
corruption, 620 Federal Communication Commission, 508
Declaration on Human Rights Defenders, freedom of expression, 494
391–93 militarization, 54–55
Declaration on the Rights of Peasants and net neutrality, 508
Other People Working in Rural Areas, prison conditions, 170–71
238–39 Supreme Court, 168–69, 170–71
Declarations of the Rights of the Child, 330 Universal Declaration of Human Rights (UDHR)
digital freedom of expression, 496 access to information, 493
Economic Commission for Europe, 240 global human rights governance, 101, 103
Group of Eminent International and human rights defenders, 394
Regional Experts on Yemen, 321 life, right to, 289–90
Guidelines for the Prevention of Juvenile sexual violence, 268–69
Delinquency (“Riyadh Guidelines”), 330 universal jurisdiction, 628
Human Rights Committee Universal System of Human Rights, 386
dignified life, right to, 108–9 University of Pretoria, 323–24
judicial independence, 471–72 Uruguay
LGBTQI+ rights, 312–13 access to information, 487
removal of judges, 462 amnesty
Human Rights Council generally, 39n.23
corruption, 620 compliance, 610
healthy environment, right to, 238–39 transitional justice, 409–10, 410n.5,
LGBTQI+ rights, 321 410n.9, 412–13, 415, 422
676 Index
Uruguay (cont.) children, institutional violence, 339, 342

children’s rights, 340 indigenous people, 267
compliance, 572 LGBTQI+ persons, 303–4, 310
Country Reports, 184 need for IAHRS, 51
Expiry Law, 410n.9 sexual orientation and gender identity
healthy environment, right to, 249 (SOGI)-based violence, 303–4, 310
human rights violations, 37 violence against women (VAW). See also sexual
ICPHROP, 354 violence
Inter-American SIMORE, 68 international human rights standards,
migration, 382–83 107–8
narrative of human rights impact, 207–8,
VAW. See violence against women (VAW) 210, 211
Vélez, Jesús, 371 positioning, 182–83
Vélez Loor, Jesús Tranquilino, 560 reparations, 211
Venezuela Vitonas Casamachin, Alexander, 265–66
access to information, 494n.131
attempts to maintain human rights narrative, war propaganda, 498–99
40, 41–42, 48 Watt Kawas, Jaime Alejandro, 398
children’s rights, 340 Watt Kawas, Selsa Damaris, 398
communities of practice, 23–24 Weeramantry, Christopher, 237
compliance, 572, 577–78 women’s rights
Constitutional Chamber, 88–89 effectiveness of international courts, 152
criminal defamation, 485 femicide, 107–8
DPLF, 612 rape as torture, 107–8, 157, 282–83
freedom of expression, 476–77, 480, 494 reproductive rights (see reproductive rights)
healthy environment, right to, 249 sexual violence (see sexual violence)
IACtHR decisions not enforced, 89–90 violence against women (VAW) (see violence
impunity in, 441–42 against women (VAW))
judicial independence, consequences of work, right to
violations, 470 direct justiciability, 229–30
MESEVE, 533–34 indirect justiciability, 223–24
migration, 377, 382–83, 385–86 Working Group on Arbitrary Detention, 306–7,
precautionary measures, 88–89 316
prison conditions, 165–66 World Bank, 151–52
provisional measures, 161n.52 World Health Organization
sexual violence, 276–77, 283, 284 COVID-19 pandemic, 560–61
threats to mandate of IACHR, 631–32 indigenous rights, 261
withdrawal from IAHRS, 88–90, 166n.77, “world of law,” 200–1
476–77, 582 Worldwide Governance Indicators Project,
Videla, Jorge Rafael, 627 51–52, 51n.9
Vienna Convention on Consular Relations, 371
Vienna Convention on the Law of Treaties yearly probability of compliance, 566, 570, 577
amnesty, 417–18 Yemen
life, right to, 287–89 Group of Eminent International and
pacta sunt servanda, 524 Regional Experts on Yemen, 321
Viola, Roberto Eduardo, 627 LGBTQI+ rights, 321
violence
challenge to IACHR, 47 Zimbabwe, LGBTQI+ rights, 314

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The Impact of the Inter-​American Human

Published in the United States of America by Oxford University Press

© The multiple Contributors 2024

Some rights reserved. No part of this publication may be reproduced, stored in

You must not circulate this work in any other form

Library of Congress Cataloging-​in-​Publication Data

Printed by Integrated Books International, United States of America

(Based on the Declaration of Principles jointly adopted by a Committee of the

List of Contributors xxiii

I.1 Inducing Compliance as a Transformative Process: The Bright

I.9 Transformative Impact: A Framework for Analysis  176

II.1 Impact of the Inter-​American Jurisprudence on Economic,

II.9 The Standards of the Inter-​American Human Rights System

III.1 Proposals for the Improvement of the Work of the

III.4 Transformative Impact of the Inter-​American Human Rights

List of Contributors xxiii

I.1 Inducing Compliance as a Transformative Process:

3. WHAT Are the Key Components of the

4. The Difference between Adjudication and Execution in

II.1 Impact of the Inter-American Jurisprudence on Economic, Social,

II.3 Indigenous Rights in the Inter-American System:

2.1. The Interpretation of the Protection of the Right to Life under

II.7 The Rights of the Child According to the Inter-American Court

2.3. Third Stage: Development and Expansion of Standards  372

4. Impact of the ICCAL/​Inter-​American Human Rights System

3.2. The Political Right of Access to and Permanence in the

III.1 Proposals for the Improvement of the Work of the Inter-American

5. Compliance with the IACtHR  571

3. Toward a Genuine Strengthening of the Regional

Eduardo Ferrer Mac-​Gregor is judge of the Inter-​American Court of Human Rights, as

Pablo Saavedra Alessandri is the Executive Secretary at the Inter-​American Court of

Cécile Blouin is a Senior Researcher at the Instituto de Democracia y Derechos Humanos

Clara Burbano-​Herrera is Professor of International Human Rights Law and Director of

Stephania Yate Cortes is a PhD candidate at Universidad de los Andes, Colombia.

Aída Díaz-​Tendero is a Professor at Universidad Nacional Autónoma de México (UNAM).

Melina Girardi Fachin is a Professor at Universidade Federal do Parana. She holds a

Joel Hernandez García is a Commissioner of the Inter-​American Commission on Human

Gabriela Kletzel is a lawyer specialized in international human rights law (Universidad de

Gabriela C.B. Navarro is an Assistant Professor at the Federal University of Lavras

Renata Politi is Legal Officer at REDRESS.

Nataly Sanchez holds a Master of Laws from University of Essex.

Antonia Urrejola is a Commissioner at the Inter-​American Commission on Human

René Urueña is a Professor and the Director of Investigations at Universidad de los

1. The Inter-​American System, Ius Constitutionale

As legal scholars of and practitioners in the Inter-​American Human Rights

Commune en América Latina: A Regional Approach to Transformative Constitutionalism (2016)

2 Armin von Bogdandy and René Urueña, “International Transformative Constitutionalism in

Latin America” [2020] 114 AJIL 403.

and Politics in Africa, Asia and Latin America 123.

Emergence of a New Ius Commune (Oxford University Press 2017).

America: An intellectual map of contemporary Latin American constitutionalism” [2021] 11

Journal of International Law 20.

2. Moving toward Transformative Impact

a sound and valuable observation. The Inter-​American Commission itself has

sentencias y resoluciones de la Corte Interamericana de Derechos Humanos: un debate necesario”

17 Inter-​American Commission on Human Rights, “Strategic Plan 2011–​2015,” 59, <https://​www.

oas.org/​en/​iachr/​docs/​pdf/​iac​hrst​rate​gicp​lan2​0112​015.pdf> (accessed February 5, 2022).

“International Transformative Constitutionalism in Latin America” [2020] 114 American Journal of

Emergence of a New Ius Commune (Oxford University Press 2017).

The Impact of the Inter-American Human

Library of Congress Cataloging-in-Publication Data

List of Contributors xxiii

I.1 Inducing Compliance as a Transformative Process: The Bright

I.9 Transformative Impact: A Framework for Analysis 176

II.1 Impact of the Inter-American Jurisprudence on Economic,

II.9 The Standards of the Inter-American Human Rights System

III.1 Proposals for the Improvement of the Work of the

III.4 Transformative Impact of the Inter-American Human Rights

List of Contributors xxiii

I.1 Inducing Compliance as a Transformative Process:

3. WHAT Are the Key Components of the

4. The Difference between Adjudication and Execution in

II.1 Impact of the Inter-American Jurisprudence on Economic, Social,

II.3 Indigenous Rights in the Inter-American System:

2.1. The Interpretation of the Protection of the Right to Life under

II.7 The Rights of the Child According to the Inter-American Court

2.3. Third Stage: Development and Expansion of Standards 372

4. Impact of the ICCAL/Inter-American Human Rights System

3.2. The Political Right of Access to and Permanence in the

III.1 Proposals for the Improvement of the Work of the Inter-American

5. Compliance with the IACtHR 571

3. Toward a Genuine Strengthening of the Regional

Eduardo Ferrer Mac-Gregor is judge of the Inter-American Court of Human Rights, as

Pablo Saavedra Alessandri is the Executive Secretary at the Inter-American Court of

Clara Burbano-Herrera is Professor of International Human Rights Law and Director of

Aída Díaz-Tendero is a Professor at Universidad Nacional Autónoma de México (UNAM).

Joel Hernandez García is a Commissioner of the Inter-American Commission on Human

Antonia Urrejola is a Commissioner at the Inter-American Commission on Human

1. The Inter-American System, Ius Constitutionale

As legal scholars of and practitioners in the Inter-American Human Rights

a sound and valuable observation. The Inter-American Commission itself has

17 Inter-American Commission on Human Rights, “Strategic Plan 2011–2015,” 59, <https://www.

oas.org/en/iachr/docs/pdf/iachrstrategicplan20112015.pdf> (accessed February 5, 2022).

University Press 2018) <https://opil.ouplaw.com/view/10.1093/law-mpeipro/e3634.013.3634/law-

While much admired for its groundbreaking decisions, the Inter-American

in Miguel Carbonell (ed.), Neoconstitucionalismo(s) (Trotta-UNAM 2013), 159; Roberto Gargarella,

Skeptics of the transformative impact of inter-American adjudication often

University Press 2013), 198–208.

Inter-American Court.”46 The Argentinean court decided to accept the IACtHR’s

Compliance should not be fetishized as a proxy for real-life impact. While

Bureaucracies are path-dependent and often lack empathy with marginalized

to transformative constitutionalism. Arguably, the Inter-American Court’s most

This chapter’s purpose is to explore the role of the Inter-American Commission

1 See IACHR, “Country Reports,” <https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/repo

rts/country.asp> (accessed January 5, 2022); and “Country Visits,” https://www.oas.org/en/iachr/act

2 See IACHR, “Thematic Rapporteurships and Units,” <https://www.oas.org/en/iachr/mandate/

rapporteurships.asp> (accessed January 5, 2022).

Ser./L/V/II.111, Doc. 20, para. 26 (rev. April 16, 2001), <https://www.cidh.oas.org/annual.eng.htm>

Nicaragua and El Salvador” [1991] 43 Stanford Law Review 733–735.

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