A Human Rights' Tale of Competing Narratives/ Um Relato de Narrativas Rivais de Direitos Humanos.

AutorSandoval, Carlos Arturo Villagran
CargoTexto en ingles - Ensayo

Introduction

The 2015 edition of Social Panorama of Latin America, a yearly publication on poverty trends produced by the Economic Commission for Latin America and the Caribbean, showed that the poverty and indigence rates in the region grew in both 2014 and 2015. Accordingly, "175 million people would be considered to be income poor in 2015, 75 million of whom would be living in extreme poverty." (1) Despite the recent progress in Latin America, such as the significant decline in poverty and indigence from 2010 through 2014, inequality has proven its resilience as a structural problem in the region. (2)

In this setting, how do we assess current and future contributions of the Inter-American System of Human Rights (the System) for such an unequal region? Can we think about rights protection without considering this particular context of structural inequality? In other words, how can we rethink and reimagine the System while focusing on the current problem of income distribution in post-transitional Latin American democracies?

These questions are not new. Victor Abramovich previously called attention to the need for reestablishing the System's strategic role to improve the structural conditions in Latin America so as to secure the full enjoyment of rights for citizens at a national level. (3) Accordingly, in its beginnings during the 80s and the 90s as a last resource for victims of authoritarian regimes, the System approached the treatment of the authoritarian past. Currently, the regional context is more complex. Abramovich noted that many countries in the region had experienced democratic transitions but had not yet consolidated democracy; the resulting exclusion and inequality generate constant political instability. (4)

In view of these broader challenges, this paper explores the 2016 financial crisis experienced by the Inter-American Commission on Human Rights (the Commission or IACHR) as an illustrative example within a larger context for rethinking the System as a whole. We argue that reform must involve a reexamination of the dialectic roles of both member states and Inter-American institutions; the goal is to create new institutional opportunities that can cope with the current contexts of rights violations related to inequality, poverty and income distribution.

We intend to show that the Commission's situation of financial hardship is deeply connected to a broader legitimacy issue that informs its proposed reforms, as debated in the Organization of American States (OAS) Special Working Group on the IACHR Strengthening Process during 2011 and 2012. The creation of this OAS Special Working Group was related to the member states' recent reactions against the Commission's overexpansion of powers, especially with regard to the issue of precautionary measures. The strengthening process was the member states' attempt to provide greater certainty and clarification to the Commission's powers, which could lead to a higher rate of compliance with its decisions. From another standpoint, the strengthening process can be seen as a constraint that the states have imposed on the System and its institutions.

Nevertheless, this move was in response to over 20 years of the Commission and the Inter-American Court of Human Rights (the Court) excessively expanding its interpretation of its powers. The result of this overexpansion of powers and activist interpretation was that scholars determined the universality of the Inter-American human rights system, or the Ius Constitutionale Commune. (5) This new scholarly narrative has led to studies on the roles that these institutions play as drivers in the establishment of a regional Latin American constitutional order. (6) This view includes a narrative in which states are the main perpetrators of human rights in the region, with the System being similar to a criminal human rights law imposed upon the states. (7)

This universal institutional view calls into question the development of the Inter-American system as a whole. This is due to the backlash from some member states, particularly since 2010. With specific regard to the Commission, states have questioned the reach of its legal powers, particularly its precautionary measures. The result of this questioning was an analysis of the Commission's powers and its constituting instruments. In relation to the Court, domestic constitutional courts have challenged the limits of its interpretation. Whether viewed either as a clarification process or as a court's multilevel dialogue, this backlash demonstrates the member states' push for a greater dialectic between them and the Inter-American institutions. This backlash, therefore, represents a strong compelling counterargument to the universal institutional narrative of the Inter-American legal regime.

This paper argues that different human rights narratives are at play within the context of the System. These narratives are connected to the tension between the main goal of protecting human rights in the Americas and the states' roles as the System's material supporters.

The prevalence of the unidirectional and institutionalist narrative of Ius Constitutionale Commune may have contributed to the system's failures. Member states have rebelled in recent times against this universal approach, particularly since the later years of the first decade of the 2000s. However, the Inter-American institutions continue to be nonresponsive to this backlash and unidirectional. This paper argues that, rather than treating states as entities to be kept under strict surveillance and mistrust, the system should be changed and reimagined through dialogue and a deeper consideration of domestic contexts, thus enabling the System to survive and encouraging member states to participate at higher levels.

This paper, consequently, provides a critical and contextual reading of the Inter-American System, including its member states and institutions. This paper also examines and reviews the scholarship developed by authors, the Court and the Commission on both Inter-American universalism and the backlash against the Inter-American institutions. The object of this paper, therefore, is to contrast the legal reasoning related to two competing narratives: that of the Ius Constitutionale Commune and that of the member states' refusal to comply with the System's decisions.

In presenting this critical and contextual reading of the backlash against Inter-American institutions, this paper is divided as follows: Part I briefly retells the history of the Commission and the Court before the 1990s, aiming to shed light on a historical perspective that shows that both the Court and the Commission were actually benefactors of a global movement rather than central pieces in the return of democracy and state-building in the region. Without aiming to offer a comprehensive history of the Inter-American System, this other historical perspective paves the way for different views on the System's role in the region, which is a necessary effort in the critique of Inter-American universalism. Part II analyses the narrative of the Ius Constitutionale Commune. It analyses how institutions and scholars, since the 1990s, have offered a new view on regional rights in which the Inter-American institutions are part of the meta-constitutional level of constitutional bodies in the region. This meta-constitutional view, however, is depicted as universal and institutional; it thus fails to take into account broader social contexts, such as rights violations related to poverty and inequality. This has led both the Commission and the Court to impose their interpretation in a top-down fashion, ultimately tying it to the development of conventionality control. Part# III of this paper reviews occasions in which member states and their superior courts have not complied with, or have placed limits on, the Commission's powers and the Court's judgments. This paper uses as its examples the 2012 strengthening process and the judgments of the domestic courts, particularly those of Costa Rica, Guatemala and Uruguay, in response to the Court's judgments. Universalist scholars have usually neglected these examples in their studies. However, both the 2012 strengthening process and the domestic courts' rebuttal of the Court's jurisprudence have strong legal bases that, in our view, cannot be neglected in the process of reimagining the System. Lastly, Part IV of this paper explains that, although both the Court and the Commission have provided strong academic universalist claims, these claims need to be further analyzed and scrutinized. This paper explores in greater detail the lesser-told stories of backlashes, refusals and resistance against the System's decisions to provide a comprehensive sketch of the System as a whole. This is done not merely as a critical deconstruction or as plain disregard of the language of rights, (8) but as a fundamental stage in beginning to redesign the System's role in the process of improving structural conditions and ensuring Latin American citizens' full enjoyment of rights, thus moving beyond the narrative of deficits in the regime and its institutions.

This paper, consequently, calls for a new view of the dialogue that Inter-American institutions have with member states and their domestic courts so as to bypass the universal institutional approach that is cemented in the system. This view calls for a more dialogical and context-sensitive approach to the interaction between Inter-American institutions and domestic actors. With this approach, we do not intend to merely deconstruct the institutional achievements of the Inter-American system; rather, we hope to contribute to the presentation of new avenues for a productive engagement with the system and its challenges.

  1. A Prologue to the Inter-American Human Rights System

    As explained previously, it is our belief that the current Commission's financial crisis is the...

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