James Cavallaro, clinical professor and executive director of the Human Rights Program, has litigated numerous cases before the Inter-American Court, Latin America’s human rights court. But this year he and Lecturer Stephanie Brewer ’07, an attorney at the Miguel Agustín Pro Juárez Human Rights Center in Mexico City, are making a different kind of case—this time in the court of public opinion—turning the focus on regional human rights courts themselves.
They wrote “Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court,” soon to be published in the American Journal of International Law, after having worked together on a case before the court when Brewer was a student at the HLS International Human Rights Clinic. “It was like peeling off layers of an onion and getting deeper and deeper into the problem,” says Cavallaro. “We became increasingly convinced that the court, in terms of its procedures and its outcomes, has not been sufficiently responsive to the context of rights violations within its jurisdiction.” And increasingly, that seemed to apply to other regional human rights courts as well.
Part of the problem, they say, is the model: the European Court of Human Rights. Up until the early 1990s, for a typical state under the court’s jurisdiction, the rule of law was strong, cases involved changes to policy rather than violent human rights abuses, and compliance with court rulings was virtually a given.
But in the Americas—and in much of the developing world—none of this is true. Under these circumstances, Cavallaro says, it takes much more than “just the brushstroke of a judicial sentence“ to bring about social change. The authors believe a new model is needed for the Inter-American Court, for the newly established African Court on Human and Peoples‘ Rights, and indeed, for the European Court of Human Rights itself, now that member states include former Soviet bloc countries, where the rule of law is far from entrenched.
“The future effectiveness of regional courts may depend,” Cavallaro and Brewer write, “on their ability to operate in ways relevant to a model of human rights advancement drawn precisely from states characterized by systematic violations and resistance to supranational authority.” To that end, the article provides a comprehensive critique of the Inter-American Court—looking at its strengths and its challenges—and a blue print for a shift in the work of all regional courts.
The authors contend that when regional human rights courts lack the power to “to trigger lasting improvements in the protection of human rights simply by directing governments to change their practices,” the primary actors who bring about change are activists, members of the media, and members of the government with progressive views on human rights. The Inter-American Court has been most successful, they say, when domestic actors could incorporate its judgments into broader strategies.
Their study found that recent modifications to workings of the Inter-American Court may reduce the ability of those actors to bring about change. “In some cases [the court] may be moving away from practices that were its strengths,” says Brewer, referring to the court’s response to procedural changes that have more than doubled its caseload over the past four years. To keep pace with the increase in cases, the court has drastically reduced hearings and the average number of witnesses for each case.
Cavallaro says the idea that more cases automatically lead to more justice is based on the Western European idea of regional courts.
“But suppose the model, in fact, is Latin American law,” he says. “It’s quite progressive in terms of the rights recognized on paper. Unfortunately, it’s the practice that’s distant from the promise of law. But what the Inter-American Court has done, and what it can do, is demonstrate in powerful ways through witnesses in public sessions, that state practice has been aberrant, and has been violent. And it can create a highly visible, legitimate, factual record that then can be leveraged by advocacy groups in the region to promote change. If that’s the role of the court, well, then it makes a big difference that you don’t have seven witnesses, and three or four full days for that hearing. It makes a big difference that you don’t have the public engagement, the cross-examination of state agents who are manipulating and distorting information. It makes a big difference that you don’t create a record and a judgment that is going to be useful for advocates in-country.”
In addition to looking at procedure, Brewer and Cavallaro do examine the court’s jurisprudence. ”But that’s not enough,” says Brewer. “You have to follow the case and see what has been the actual impact on the situation of human rights in a country.”
They stress that while courts must remain impartial in their factual evaluations and legal determinations, to be effective they should be in touch with the social and political realities in countries subject to their jurisdiction and render judgments that reflect those realities.
The authors imagine there may be resistance. But at the same time, says Cavallaro, courts have historically made decisions based on social realities. “Look at Brown v. Board of Education,” he says. “It was ’all deliberate speed’ not ’integrate all schools tomorrow.’ ”