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Thomas Antkowiak, a member of the faculty at Seattle University School of Law, served as the moderator. Members of the panel included Bernard Duhaime, Professor of Law at the University of Quebec in Montreal and Vice Chair of the United Nations Working Group on Enforced or Involuntary Disappearances; Alejandra Gonza, Director of the International Human Rights Clinic at the University of Washington School of Law; and Viviana Krsticevic, the Executive Director of the Center for Justice and International Law and an Adjunct Professor at the American University’s Washington College of Law.
For those who are unfamiliar with the Inter-American human rights system, it consists of two key institutions: the Inter-American Commission on Human Rights (“the Commission”) and the Inter-American Court of Human Rights (“the Inter-American Court” or “the Court”). The Commission has two roles. Under the Charter of the Organization of American States (“the Charter”), the Commission adjudicates petitions brought by individuals against OAS member states alleging violations of rights guaranteed under the Charter. The Commission also publishes country-specific and thematic reports. Under the American Convention on Human Rights (“the Convention”), the Commission acts as a gatekeeper, examining individual petitions alleging violations of rights guaranteed under the Convention and making recommendations if violations are found. If a state party to the Convention fails to comply with it recommendations, the Commission may refer a petition to the Inter-American Court for adjudication. The presentations of the panelists focused primarily on the jurisprudence of the Inter-American Court.
After introducing the panel members, Professor Antkowiak provided a brief overview of the “human rights architecture” constructed by the Commission and the Inter-American Court during the past 35 years. He explained that both the Commission and the Court have routinely employed the pro homine principle when interpreting the Charter and the Convention, which favors the expansive definition of individual rights and narrowly defines restrictions thereon. This victim-centered approach has made a significant impact beyond Latin America, influencing the work the European Court of Human Rights, the emerging African human rights system, and the UN’s human rights treaty bodies. Professor Antkowiak concluded by noting that some of the Court’s more recent decisions have retreated from its historically expansive approach to individual rights and become more deferential to the interests of states, leading many observers to speculate that the Court’s jurisprudence may be at a crossroads.
Professor Duhaime spoke about the rights of women under the Inter-American system, focusing on three types of cases: 1) those involving violence against women, 2) those involving equality and gender discrimination, and 3) those involving reproductive health. He characterized the Court’s jurisprudence on violence against women as groundbreaking, citing, in particular, the Court’s judgment in the case of Loayza Tomayo v. Peru, which defined rape as a form of torture. With respect to gender discrimination, Professor Duhaime highlighted the Court’s willingness to entertain claims of “double discrimination” involving gender in combination with some factor (poverty, migrant status, etc.) and to consider whether such dual claims could give rise to a third form of discrimination. Although the Court has heard many reproductive health cases, ranging from the use of forced sterilization to prohibitions against in vitro fertilization, Professor Duhaime noted that the Court has yet to interpret the Convention’s “right to life” clause in case involving abortion.
Ms. Gonza, who previously worked as senior attorney at the Commission and as a staff attorney at the Inter-American Court, devoted her remarks to freedom of expression under Article XIII of the Convention. She began by asserting that the Court has a history of applying Article XIII robustly as a means of limiting state power. It has defined expression broadly to include content that is shocking and disturbing. Any restrictions on freedom of expression must be established by law, for the purpose of protecting a compelling state interest, and must be proportional. In addition, the Court was the first human rights tribunal to recognize a right to access information.
Ms. Gonza went on to describe several more recent cases, which she characterized as setbacks to freedom of expression. One involved a government’s attempt to shut down a television station by vandalizing its broadcasting equipment. The Court declined to find a violation of Article XIII on the grounds that the journalists themselves were not attacked and that only their property had been damaged. Perhaps more disturbingly, the Court has declined to invalidate several recent prosecutions under criminal libel statutes, even though the defendants in those cases had been targeted for criticizing public figures about matter of public concern.
Ms. Krsticevic, who has litigated numerous cases before the Commission and the Inter-American Court, spoke about the Court’s creative approach to remedies in claims involving systematic and recurring violations of the rights of indigenous peoples. The Court’s principle innovation in this context has been the development of a theory of general reparations that goes beyond compensating individual victims for economic losses. Examples of such reparations include requiring states to investigate, document, prosecute, and punish ongoing violations of the human rights of indigenous peoples. In addition, the Court has required states to publicly acknowledge and apologize for past systematic violations of the human rights of indigenous peoples and to establish public memorials. This approach contrasts sharply with that of other human rights tribunals, such as the European Court of Human Rights.
Ms. Krsticevic went on to describe what she characterized as three “red flags” in the Court’s most recent cases involving the rights of indigenous peoples, which may signal a partial retreat from its earlier, more expansive approach. These red flags include 1) inconsistency in applying general measures of reparations from one case to another; 2) an increased willingness to defer to the decisions of national courts, even when those courts have a poor record of respecting human rights; and 3) a reluctance to reopen an investigation of systematic human rights abuses if the relevant statute of limitations has run.
Professor Antkowiak concluded the presentation with a brief synthesis of the main points raised by the panelists before opening the floor to questions from the audience.
Charles Bjork, International & Foreign Law Reference Librarian, Georgetown University Law Library