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

by von Bogdandy, Armin; Piovesan, Flávia; Ferrer Mac-Gregor, Eduardo; Morales Antoniazzi, Mariela

• ISBN13: 9780197744161
• ISBN10: 0197744168
• Format: Hardcover
• Copyright: 2024-03-12
• Publisher: Oxford University Press

Summary

The Inter-American System of Human Rights (IASHR) is certainly a source of innovation in human rights law and policy. However, uncertainty reigns over its true legal, political, and social effects as many decisions face serious problems of compliance. To better grasp the System's effects, this book broadens the focus from compliance to impact as the key criterion of effectiveness. Thus, The Impact of the Inter-American Human Rights System: Transformations on the Ground can reveal the IASHR's deep and multifaceted effects, not least by embedding a common law of human rights.

Outlining the IASHR's historic path and contemporary practice, this book shows legal, political, and social effects with respect to the main problems that trouble the Americas. Though most of these certainly continue to exist, the System is having a transformative impact on them on the ground, though with huge differences between issues and countries. These achievements as well as the variations should be of interest to academics, judges, and policymakers in Latin America as well as other regions undergoing similar stress, such as Central and Eastern Europe or Africa.

The Impact of the Inter-American Human Rights System brings together leading scholars in international and constitutional law, social sciences, and international relations to present a systematic and critical analysis of the impact of the IASHR in the various fields of its activity. These include issues of internal conflicts, transition to democracy, rights of vulnerable groups, social rights, the environment, digital rights, and the accountability of private actors. The book also offers evidence-based proposals to further enhance the transformative impact of the Inter-American System that could be taken up by courts and policymakers at the national, Inter-American, and global levels.

This is an open-access title available under the terms of a CC BY-NC-ND 4.0 International license.

Author Biography

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 (gavel) of the Inter-American Court of Human Rights.

Flávia Piovesan is a professor of Constitutional Law and Human Rights at the Pontifical Catholic University of São Paulo (PUC-SP). She was a 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 a visiting fellow at the Max Planck Institute for Comparative Public Law and International Law. From 2009-2014 she was there 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. Flávia 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.

Eduardo Ferrer Mac-Gregor is judge and former president 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 is director of the Ibero-American 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 University of Notre Dame, American University College of Law, Paris-Sorbonne University (Panthéon París 1), Complutense (Madrid) and the Max Planck Institute for Comparative Public Law and International Law (Heidelberg).

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 her PhD at the University of Frankfurt/ Main. Her research focuses on constitutional law, Human Rights Law and the Inter-American System of Human Rights. Mariela Morales Antoniazzi has been a visiting professor at various Latin American universities and is vice-president of the German section of the Ibero-American 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.

Table of Contents

Introduction Armin von Bogdandy, Flávia Piovesan, Eduardo Ferrer Mac Gregor, Mariela Morales Antoniazzi

PART I

I.1 Inducing Compliance as a Transformative Process: The Bright Side of a Dismal Record Armin von Bogdandy, René Urueña
I.2 Protecting Human Rights in the Americas: The Continuous Role of the Inter-American Commission on Human Rights Claudio Grossman
I.3 Inter-American System of Human Rights: Sociopolitical, Institutional, and Cultural Dimensions of its Transformative Impact Mariela Morales Antoniazzi, Flávia Piovesan, Julia Cortez da Cunha Cruz
I.4 Current Issues and Common Challenges for the Protection of Human Rights in Europe, the Americas, and Africa Rainer Grote
I.5 The Impact of the Inter-American Human Rights System Beyond Latin America Par Engstrom
I.6 Conventionality Control and the Basic Elements of the Judicial Function
I.7 Effectiveness of International Courts: From Compliance to Transformative Impact
I.8 The Use of Transformative Provisional Measures by the Inter-American Court of Human Rights: Toward a Tangible Impact
I.9 Transformative Impact: A Framework for Analysis
I.10 Constructing the Narrative of Human Rights Impact in Latin America

PART II
II.1 Impact of the Inter-American Jurisprudence on Economic, Social, Cultural, and Environmental Rights
II.2 The Inter-American Human Rights System's Impact on the Protection of the Right to a Healthy Environment
II.3 Indigenous Rights in the Inter-American System: The Application of Precautionary Measures from a Culturally Appropriate Perspective
II.4 The Inter-American System of Human Rights and its Impact on the Human Rights of Women: The Issue of Sexual Violence
II.5 The Transformative Impact of the Artavia Murillo Case on In Vitro Fertilization
II.6 The impact beyond compliance of the Case of Azul Rojas Marin: Reflections around Strategic Litigation and the Inter-American System of Human Rights
II.7 The Rights of the Child Corpus Juris in the IACtHR: A Latin American Translation
II.8 The Riffo-Salinas Case: Human Rights of Older Persons Consolidated in the Interamerican System
II.9 The Standards of the Inter-American Human Rights System Regarding Migration and its Impact on the Region's States
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
II.11 The Inter-American Human Rights System's/ICCAL's Impact on Transitions to Democracy from the Perspective of Transitional Justice
II.12 Impact of the Inter-American System of Human Rights in the Struggle Against Impunity
II.13 The Independence of Justice as a Human Right and an International Obligation in Inter-American Jurisprudence
II.14 Freedom of Expression: Inter-American Standards and their Transformative Impact
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

PART III
III.1 Proposals for the Improvement of the Work of the Inter-American Commission on Human Rights
III.2 A Broader Look at the Transformative Impact of the Inter-American Court of Human Rights' Decisions
III.3 Addressing Conceptual Challenges: Compliance and Impact
III.4 Transformative Impact of the Inter-American Human Rights System: A Methodology to Think Beyond Compliance
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 (IASHR)
III.6 Activism Strategies Involving the Inter-American System: Reflections for the Field of Action and Perspectives from National Human Rights Organizations

Conclusion