—Irene Spigno, Academia Interamericana de Derechos Humanos
How to make States compliant with their legal obligations with reference to international human rights law (henceforth IHRL)?
The volume edited by Rainer Grote, Mariela Morales Antoniazzi, and Davide Paris tries to give an answer to this crucial question, with important practical implications regarding the effectiveness of human rights protection, especially in consideration of the fact that one of the main weaknesses of IHRL is the lack of solid and robust mechanisms forcing States to comply with their international obligations.
The fil rouge that forms the backbone of the volume is represented by the distinction of “compliance” from similar concepts such as “implementation” and “enforcement”. According to the definition provided by Kal Raustiala and Anne-Marie Slaughter in their chapter on ‘International Law, International Relations and Compliance’ in Walter Carlsnaes, Thomas Risse and Beth A. Simmons (eds), Handbook of International Relations (SAGE 2002), compliance should be understood as “a state of conformity or identity between an actor’s behavior and a specified rule”, while “implementation [reflects] the process of putting international commitments into practice”, and “enforcement […] refers to those activities which are intended to push relevant actors towards a rule-compliant behavior, e.g. through the imposition of sanctions.”
With this difference in mind, the authors of the different chapters collected in the book were called to reflect on the strengths, but also weaknesses and the areas of opportunity of the various mechanisms analyzed in the volume, both at a regional level – with reference to the European system for the protection of human rights, the inter-American and the African one – and at an universal level, through the analysis of the compliance monitoring under the International Covenant on Civil and Political Rights.
This wide and inclusive approach allows the reader to have a complete overview of the current state of health of IHRL, whose mission – beyond the legal formalisms that often cage and constitute an obstacle for an effective protection of human rights – is now that of not just resolving individual human rights violations, but rather transforming a reality of – in many cases – structural human rights violations. This mission is clear in the purpose – pushed from outside, very often by society itself or by a generalized context of serious human rights violations – of regional human rights systems which, unlike the universal system, have been endowed with substantial reviews and remedial powers, thanks to the presence of regional Human Rights bodies (commissions and courts).
The differences between the three regional systems analyzed in the book – European, Inter-American and African – are profound and are mainly linked to the diverse institutional structure but also, and especially, to the different context in which these bodies – judicial and quasi-judicial – operate. Nonetheless, it is also possible to identify common points. One of them is that, initially, these were systems whose scope was to resolve individual complaints and, therefore, to guarantee the protection of the violated right inter partes to assume a transformative vocation. However, regional systems aim to solve structural problems starting from the individual case (see Chapter 2, pp. 21-22 and 38-40; Chapter 11, pp. 225 ff. and Chapter n. 18, p. 387).
The volume gives the reader a very interesting picture of very different realities that we can find in Europe, Latin America and Africa as well as at an international level. In each regional or universal experience analyzed we can find tendentially well-compliant states [like Argentina, Chile, and even Mexico, for example, in Latin America (see Part II on Latin America) or Austria in Europe (see Chapter 3, pp. 42 ff.)] and states that opted out of the system (as is the case of Venezuela).
The explanations behind this difference in compliance, can be several and of legal, political, social, and contextual nature (Chapter 25, pp. 510 ff.). One of the main critics and even attacks that have been made against the human rights regional systems is that regional commissions and courts are also activists, thereby affecting States’ sovereignty by demanding –for example– changes in their legislative or even constitutional framework, implicitly recognizing many rights sometimes contradictory in the convention that therefore would enter via control of conventionality also in the states and sometimes –many times actually even explicitly– without having received any democratic mandate.
But wasn’t it about this? Was this not the agreement perhaps tacit (but not too much), after the second world war? In other words, the main core of the so-called Human Rights Revolution was that States were going to give up part of their sovereignty in order to guarantee and protect human rights, wasn’t it?
Surely this is how Regional Courts understood their mandate. Maybe, the European Court of Human rights adopted some more self-restraints than the Inter-American Court did, being the judge of San José a human rights court in a region that unfortunately is characterized by serious, very serious human rights violations. The Inter-American Court of Human Rights took its transformative role very seriously, as demonstrated by its activist case law in the promotion of a real and important change in the matter of human rights. One of the strong points of its judicial doctrine is precisely the jurisprudence that it has developed in the matter of reparations, which is a very articulated and advanced case law, much more so than that of the European Court of Human Rights, identifying six dimensions affected by human rights violations, which can be grouped into two macro categories that distinguish between reparation measures that are directed solely and exclusively at the victim (or victims) and measures with a collective vocation which intend to make a structural change. The former includes restitution measures, which are intended to restore the situation of the victim to the moment prior to the occurrence of the damage; compensation, which covers material physical or emotional damages, expenses incurred and loss of income; and rehabilitation, which include the required medical and psychosocial care.
Among the latter, in order to solve the obligation assumed with reference to the structural and social changes that the Inter-American Court intends to carry out, the Inter-American Court has developed measures of satisfaction, which have a symbolic character and public acknowledgment of responsibility; guarantees of non-repetition, which seek the adoption of structural measures that look to prevent the repetition of violations; and the obligation/duty to investigate as a measure of reparation.
In addition, the Court has been adding specific approaches in cases that affect vulnerable groups. This is, for example, the case of gender-based violence against women, in which the transformative vocation of reparation measures has resulted in the adoption of a gender approach, understood as a methodological tool created by feminist theories that allows to eradicate the inequalities of power created by the biological, social or anatomical differences that exist between men and women.
And in front of this transformative case law, what do States do? The sixteen country reports that we find in the volume tell us something important about the attitude States have towards compliance: some of them have a strong integration between IHRL and domestic law, in some other cases compliance is done after “gentle” reminders, but in most States (in the three regional systems but also in the universal one), there is a very serious problem related to apathy from the States’ part in relation to subsequent compliance with these measures (despite the existence of a specific legal duty in this sense). Reviewing the results of the compliance monitoring process carried out, for example, by the Inter-American Court itself, the system is facing a rather worrying panorama. The data shows that the vast majority of States are lagging behind in complying with structural reparation measures, which imply a profound change in the system. But it is not only a problem that we can find in the Inter-American system.
Normally, States do not find any problem in complying with measures that do not imply a structural effort, such as those that require the payment of a compensation or indemnity, the construction of a monument to remember the memory of the victims, nor those that require them to standardize the internal legislation or the creation of specialized agencies to facilitate and streamline comprehensive and multidisciplinary care for victims. And neither with those measures that generate activities and training in human rights or workshops, radio programs and awareness campaigns that were extended to companies, public institutions, and teachers of all educational levels.
However, among the measures that are difficult to comply with are those that refer to structural change. This is very clear in the Inter-American system where many States face important difficulties not only at complying with the duty to investigate, prosecute and punish HR violations, but also at guaranteeing the right to the truth of the families of the victims and the non-repetition of such human rights violations. However, many crimes still go unpunished after many years generating a generalized context of impunity which favors more human rights violations.
Despite the important advancements realized, IHRL has still significant debts with the victims. The problems with compliance that authors have underlined in the book demonstrate this and show only a small part of the serious human rights crisis that affects, with nuances, the different latitudes of the globe. The outlook is very bleak and worrying. Although there has been significant progress, thanks to the transforming vocation of regional and universal human rights case-law, the current scenario shows that States’ actions are still not enough.
Perhaps, we have charged the IHRL with an excessive responsibility, since States should be the responsible for guaranteeing human rights and to comply with them. However, given their inactivity, the IHRL still appears to be inefficient and has little scope for action if global strategies are not considered in order to strengthen the regional protection system to force States to comply with the protection and reparation measures, and sanctioning them in the event that they do not.
Also, we could make the effort to wonder about the true meaning of the transforming vocation of the IHRL and rethink the foundations of the mechanism for supervising compliance. What is still evident is that IHRL system cannot work without a collaborative attitude on the part of the states, which begins when the existence of a context of serious human rights violations is recognized as a problem of a structural and systematic nature that still persists and for which much remains to be done.
And the “Research Handbook on Compliance in International Human Rights Law”, edited by Rainer Grote, Mariela Morales Antoniazzi, and Davide Paris is a great academic contribution to this effort.
Suggested citation: Irene Spigno, Book Review: Rainer Grote, Mariela Morales Antoniazzi, and Davide Paris “Research Handbook on Compliance in International Human Rights Law”, Int’l J. Const. L. Blog, May 31, 2023, at: iconnectblog.com/book-review-rainer-grote-mariela-morales-antoniazzi-and-davide-paris-research-handbook-on-compliance-in-international-human-rights-law-cheltenham-edward-elgar-2021/
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