Bringing Effective Remedies Home: The Inter-American Human Rights System, Reparations, and the Duty of Prevention

AuthorLisa J. Laplante
Published date01 September 2004
Date01 September 2004
Subject MatterPart A: Article
This article explores how the Inter-American Court of Human Rights applies pecuniary and
non-pecuniary reparations judgments in an effort to compel States to comply with the duty of
prevention and non-repetition as embodied in Article 1 of the American Convention of Human
Rights. Using Peru as a case study, the author argues that such judgments fail to induce States
to guarantee internal domestic remedies, the mechanism used by citizens to check State
compliance with the international duty to protect human rights, including the right to
reparation, thus creating victim reliance on the Court for redress. In conclusion, the author
proposes that the Court begin to use punitive measures in order to compel States to begin erecting
internal remedies at home and thus strengthening domestic protection of human rights.
The ultimate goal of an international human rights tribunal like the Inter-American
Court of Human Rights (hereinafter ‘Inter-American Court’ or ‘the Court’) should
be to render itself obsolete. In an ideal setting, the Court will have served its purpose
the day all member States take every step possible to prevent human rights
violations, or when not possible, guarantee their non-repetition by ensuring
effective internal remedies that lead to prompt criminal investigations and just
compensation for victims, measures that will help deter future violations. As the
overarching object and purpose of the American Convention of Human Rights
(hereinafter ‘American Convention’), prevention and non-repetition should
constantly inform the decisions and opinions of the Inter-American Court. That
is, as the primary enforcement mechanism of the American Convention, the Court
should carry out its work in the best way possible to move us closer to this ultimate
goal, no matter how far off this ideal may appear to be.
This article examines how the Court, as a non-penal tribunal, relies on pecuniary
and non-pecuniary reparations as its primary tool for inducing States to bring their
internal norms, both on paper and in practice, into compliance with the
international obligations embodied in the American Convention. As an evolving
body of law, reparations, which arise out of the general right to a remedy recognised
in international law, have recently gained increased attention but primarily for their
restorative justice purposes of compensating victims who are harmed as a result of a
Netherlands Quarterly of Human Rights, Vol. 22/3, 347-388, 2004.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 347
* B.A., Public Policy, Brown University 1991; M.Ed., University of Massachusetts 1994; J.D., New York
University School of Law, 1999. Legal consultant for Liberated Innocents in Lima, Peru; Research
Associate, Praxis: An Institute for Social Justice, Boston, USA.
wrongful act or omission of a State. This general trend plays down the deterrent
function of reparations as a means of compelling States to fulfil their international
obligations such as those found in the American Convention.
Deterrence occurs when States alter internal policies and practices in order to
avoid future scrutiny and costly reparation payments ordered by the Court. In
particular, as part of this scheme, States begin to guarantee that remedies in
domestic courts are both accessible and effective. Guaranteeing prompt civil and
criminal recourse serves both the individual’s interest of protecting her right to
redress, as well as the community’s interest of ensuring the State’s compliance with
human rights norms, and the prevention of their violation. In other words, every
legal claim brought both individually and collectively serves as a constant check on
the State’s use or abuse of its power. When working optimally, this arrangement
eliminates the need of an international entity like the Court to review the State’s
compliance with international obligations since individuals will have assumed
this role.
Relative to other regional systems of human rights, the Court has been credited
for being progressive in relation to its landmark reparation judgments, which have
contributed greatly to international jurisprudence. The true test of the effectiveness
of the Court’s use of reparations, however, is its actual impact on the behaviour of
States, not only in terms of paying off judgments ordered by the Court but also in
erecting human rights protections within their own system, including adequate and
effective internal remedies. Yet, as will be discussed, the reparation judgments of the
Court have yet to alter the behaviour of member States on a more consistent and
systemic level. To support this argument, the author uses the case study of Peru as an
example of a State that has begun to pay compensation ordered by the Court while
failing to ensure effective domestic remedies for victims of human rights violations
at home.
In response to this reality, the author proposes that the Court move away from
depending on the strict compensatory rationale that links reparations to the harm
suffered by the victim, and instead begin to sanction States for human rights
violations just enough to give them incentive to alter their internal practices. If faced
by more onerous reparation judgments from the Court, States may be motivated to
guarantee the right to a remedy within its domestic jurisdiction, thus eliminating the
dependence of victims on the Inter-American Court. Alternatively, until the Court
strengthens the deterrence function of its reparation judgments, States may be more
likely to comply with the Court’s reparation judgments, paying compensation to a
handful of successful litigants, while allowing impunity to reign with respect to the
majority of other human rights complaints.
In other words, without incentive, there will be no political will to address
internal inadequacies of internal remedial mechanisms, nor to erect truly effective
internal protections that go towards preventing human rights violations. While it is
hoped that States will protect human rights because of their intrinsic value and
importance, pragmatism now requires a cost/benefit approach to altering State
behaviour; namely by increasing reparation payments as sanctions to persuade
States to identify and implement all necessary measures to protect these rights
within their territory.
This article recognises that the political feasibility of this proposal is coloured by
the practical restraints faced by the Court whose very existence is bound by the
realities of a consensual treaty system in which States agree to be subject to the
Court’s contentious jurisdiction, but in reality face only diplomatic pressure if they
Lisa J. Laplante
should ignore their international obligations, at which point they may even decide
to withdraw their consent altogether. Probably for this reason, the Court has been
cautious in its expansion of reparations, for instance avoiding punitive damages
altogether and instead relying on more conventional, accepted forms of reparations
that nevertheless serve a punitive function while retaining their legitimacy as being
compensatory in nature. Time and circumstances, along with judicial honesty, will
reveal the true feasibility of this proposal. However, despite the relative youth of the
human rights movement, we have been pleasantly surprised by other encroach-
ments on sovereignty. For instance, in 1998 the Pinochet Case expanded the
extraterritorial reach of jurisdiction in ways never before expected. In fact, 50 years
ago, the idea of a State subjecting itself to the scrutiny of an international human
rights tribunal stretched the imagination of even the most steadfast idealist.
The concept of prevention and the non-repetition of human rights violations form
the bedrock of the American Convention as reflected in Article 1(1) which obliges
all State parties ‘to respect the rights and freedoms recognized herein and to ensure
to all persons subject to their jurisdiction the free and full exercise of those rights
and freedoms...’
States do not have a choice in this matter but rather are obliged to
protect human rights under both treaty law and customary law,
not just by ensuring
investigations of and reparation for human rights violations but also guaranteeing
their non repetition.
As explained by Antonio Augusto Canc¸ado Trindade, current
judge of the Court,
The 1948 American Declaration on the Rights and Duties of Man,
accompanied by the 1948 Inter-American Charter of Social Guarantees,
represents the starting point of the process of generalization of human rights
protection on the American continent. The American Declaration, like the
Universal Declaration of Human Rights of the same year, comprised a wide
range of human rights (civil, political, economic, social, and cultural), aiming at
the protection of human beings not only under certain circumstances or in circumscribed
sectors as in the past, but in all circumstances and in all areas of human activity.
Bringing Effective Remedies Home
Netherlands Quarterly of Human Rights, Vol. 22/3 (2004) 349
American Convention on Human Rights, 22 November 1969, International Law Magazine, Vol. 9, p.
693, OEA/ser.K/XVI/1.1/Doc. 65 (English) Rev.1. Corr.2 (1970) (entered into force 18 July 1978)
[hereinafter: the American Convention].
See Vela
´squez Rodrı
´guez Case, Judgment on the Merits of 29 July 1988, Inter-American Court of
Human Rights (Series C), No. 4, paras 164-165 [hereinafter: Vela
´squez Rodrı
´guez Judgment]: ‘The
Restatement of the Foreign Relations Law of the United States suggests that a state is obligated to
respect the human rights that it has accepted under treaty or ‘‘that states generally are bound to
respect as a matter of customary international law...’’’; Restatement (Third) of the Foreign
Relations Law of the United States 701 (1987).
Loayza Tamayo Case, Reparations Judgment of 27 November 1998, Inter-American Court of Human
Rights (Series C), No. 42, para. 85 [hereinafter: Loayza Case].
Canc¸ ado Trindade, Antonio Augusto, ‘Current State and Perspectives of the Inter-American System
of Human Rights Protection at the Dawn of the New Century’, Tulane Journal of International and
Comparative Law, Vol. 8, 2000, p. 5, at pp. 7-8 (emphasis added).

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