Thomas M. Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights

Thomas M. Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights The Inter-American human rights system is in many respects a trailblazer in international human rights law. Its most celebrated attribute is the rich vein of jurisprudence emanating from the two adjudicative bodies of the American Convention on Human Rights: the Inter-American Court of Human Rights (‘the Court’) and the Inter-American Commission on Human Rights (‘the Commission’). The judgments and advisory opinions of the Court, and published decisions, reports and other documents of the Commission are the Inter-American system’s chief export. A combination of a history of state-sponsored violence, unique socio-political factors, a civil society determined to see justice done, and a crop of creative jurists seated in the Commission and in the Court has seen the Inter-American system produce a number of notable firsts. Emblematic of these is having: the first human rights court to affirm indigenous rights to communal property; the first regional human rights body to hold that rape by state agents may constitute torture; the first human rights court to recognize an individual right to notice of consular assistance; and the sole human rights system to create an autonomous right to simple, prompt and effective judicial recourse (amparo). Yet, these remarkable merits sit alongside a few dispiriting shortfalls. In The American Convention on Human Rights: Essential Rights, Thomas M. Antkowiak, an Associate Professor of Law and Director of the Latin American Program at Seattle University School of Law, and Alejandra Gonza, Director of the International Human Rights Clinic at the University of Washington School of Law, agree that juridical innovations, a victim-focused approach and robust decisions have strengthened individual and collective rights in the Inter-American system, and protected the Convention rights of vulnerable petitioners against states and powerful commercial interests (p 2). On a critical note, however, they observe that certain decisions have diluted Convention rights, distorted legal concepts, departed from a victim-centred perspective, or neglected rigorous analysis and meticulous conceptual development (p 2). To remedy these jurisprudential lapses, Antkowiak and Gonza methodically highlight the specific instances that reflect a lack of judicial consistency or rigour, critique them in light of the objects of the American Convention and, most importantly, provide convincing alternative conceptual approaches. The book begins with an Introduction, useful in itself for the way in which it offers a concise and instructive overview of the Inter-American system, its principal institutional bodies and their interrelations. Chapter 2, which is concerned with equality, advances a careful interpretation of Article 24 of the American Convention. Article 24 provides: ‘All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.’ While noting the foundational status of equality as an organizing principle for societies and the legal framework, Antkowiak and Gonza point out that the two elements of this right (the right to equality before the law and the right to equal protection of the law) have polarized opinion on the content of this right. An objective reading of Article 24, they submit, shows that it established these two elements as autonomous rights, and this interpretation is both accepted and developed by the Court (p 37). Yet, Antkowiak and Gonza observe that the Court has in some cases interpreted Article 24 as an accessory right to Article 1(1), which requires states to respect Convention rights and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights ‘without any discrimination’ on the enumerated grounds, as well as on ‘any other social condition’. In a searching turn, this chapter meticulously presents conflicting case law to support the conclusion that the Inter-American system currently regards Article 24 and Article 1(1) as simultaneously separate concepts and in relation to each other (p 40). Even more worrying, note Antkowiak and Gonza, is the Court’s recent practice of restricting the scope of Article 24 to ‘the application or interpretation of a specific domestic law’ (p 37). As part of their critical and corrective approach, the authors raise persuasive principled objections to this unsupported practice (pp 38–40). Chapter 3 considers the right to life as outlined in Article 4 of the American Convention, and analyzes how the jurisprudence of the Court and Commission has clarified its content and expanded its scope. In contrast with the practice of comparable quasi-judicial bodies which defer to states, Antkowiak and Gonza note that, in line with Article 4, the Court has been assertive that (i) life begins at conception and (ii) conception starts ‘from the moment at which implantation [of the embryo in the mother’s uterus] occurs’ (p 73). Limitations on the right to life involving the use of lethal force are also considered in the context of law enforcement and armed conflict operations. Here, Antkowiak and Gonza demonstrate that, like other human rights treaty monitoring bodies, the Court has used flexible criteria for determining whether deprivation of life is arbitrary (p 83). The continued application of the right to life in armed conflict has consistently been affirmed in Inter-American jurisprudence, with both the Court and Commission holding that international humanitarian law (IHL) and American Convention rights apply co-extensively (p 86). However, Antkowiak and Gonza note that the Court has been reticent to apply IHL intensively, more so in assessing proportionality in attack or specific obligations in the conduct of hostilities (p 88). Although this important point concurs with the findings of the broader literature on point, it may have been more helpful to proffer an alternative approach from comparable experiences. Another significant subject in Chapter 3 is the question of capital punishment which, though not initially prohibited in the American Convention, is shown to be increasingly regarded as tending towards complete abolition the world over. Crucially, Antkowiak and Gonza note that the Court has been instrumental in staying executions (p 81) and challenging the legality of statutes that impose a mandatory death penalty on conviction (p 78). One of the key innovations of the Inter-American system is the crime of enforced disappearance, a concept that developed out of necessity given the prevalence of the practice during the period of authoritarian and military rule in Latin America. Antkowiak and Gonza chart the conceptual development of this crime which presently not only violates the right to life, but also other rights, including the right to personal integrity, personal liberty and juridical personality (pp 92–7). Antkowiak and Gonza note, in Chapter 4, that the approach of the Inter-American system has been to advance the protection of personal integrity by demanding more rigorous safeguards of states and being firm in finding violations of Article 5 of the American Convention (p 104). This indicates a tendency towards greater possibility of future classification of presently less serious breaches of personal autonomy as more serious violations of the right to humane treatment. Antkowiak and Gonza also show that protection of personal integrity is an area in which a high degree of convergence has occurred in the doctrine and practice of human rights treaty bodies (p 111). The authors identify the ‘cross-fertilization’ of jurisprudence among these human rights treaty bodies as a key contributor to the ever growing protections for personal integrity and more stringent standards across different human rights systems (p 105). Contributions of international criminal tribunals to the definition of some of the constitutive conduct of Article 5 violations are likewise acknowledged by the authors who show that while Inter-American jurisprudence generally comports with international best practice, there is need for greater vigilance to avert a reverse (p 116). The Inter-American system’s own jurisprudence has also played a critical role in developing the content of Article 5. With specific reference to the Court, Antkowiak and Gonza demonstrate that inward-looking approaches are equally useful because, drawing on the Commission and the Inter-American Convention to Prevent and Punish Torture, the Court has rendered judgments of crucial import (pp 109–10). Thus the Court’s interpretive approach has extended the scope of prohibited conduct, expanded state duties and broadened access to redress for serious yet difficult to prove offences. Yet, for all its impressive accomplishments, critical observers, as are Antkowiak and Gonza, can detect some striking shortfalls in the Court’s Article 5 jurisprudence. First, the Court’s interpretive approach to Article 5 is not always consistent, nor is its tendency to conclude that ‘an act can breach only Article 5(1) and not 5(2)’ transparent (p 106). Secondly, the Court’s reticence to find breaches of Article 5(2) has resulted in the more recent and troubling practice of disregarding Article 5 violations altogether (p 129). Chapter 5 turns to a consideration of jurisprudence on Article 7 of the American Convention, which establishes a general right of all persons to not be deprived illegally or arbitrarily of their liberty, and specifies the guarantees for persons deprived of their liberty. The implication of this provision is that deprivation of liberty is only permissible if (i) its procedures and reasons are established by law and (ii) the detention or arrest is not arbitrary (p 141). Antkowiak and Gonza welcome a number of key advances in the approach of the Inter-American system to personal liberty. First, although detailed safeguards originally addressed criminal proceedings, the Court and Commission have progressively read them to apply also to administrative deprivation of liberty such as cases of immigration detention (p 159). Secondly, both the Court and Commission have overcome the barrier posed by an evidential requirement of specific details of the location and duration of captivity. Thirdly, the Court has extended the material scope of Article 7 by establishing that violations may be carried out by non-state actors, even absent the orders or control of a state (p 145). Despite this, Antkowiak and Gonza find worrying methodological problems in the Court’s approach to the principles of legality and arbitrariness, which has been inconsistent over the years (p 160). Although the two principles are closely linked, the Court has drawn a bright-line distinction between them, and this has resulted in the growing practice of the Court to disregard rigorous examination of arbitrariness once it finds an illegal detention (p 161). Another flaw identified by the authors is the Court’s current practice of exclusively considering the text of national law as the decisive basis for assessing the legality of detention (p 161). Coupled with the mistaken attempt to draw a sharp distinction between legality and arbitrariness, it is possible for detention to be technically legal in terms of compliance with national standards, but still arbitrary in terms of international law. This has the dual effect of expanding state discretion over detention practices and limiting or distorting the import of international human rights law. A further critique of the Court’s Article 7 jurisprudence raised by Antkowiak and Gonza is its increasing deference to states, whereby the Court is disinclined to criticize deficient national laws that do not offer the minimum safeguards. They observe that the Court ‘has only very rarely condemned national law in this context’ (p 167). Joint consideration of the rights to due process and judicial protection is given in Chapter 6. Starting with an analysis of Article 8 (the right to a fair trial), Antkowiak and Gonza welcome how its due process protections have extended to regulate proceedings of any public authority, be they judicial, administrative or legislative, as long as its decisions determine individual rights and obligations (p 179). Another significant advance related to Article 8 is the development of a right to justice that enunciates a guarantee against impunity by requiring that, even where a case ended with an acquittal by final judgment, investigations may be reopened if new evidence emerges or if it can be demonstrated that the double jeopardy rule should not apply (p 213). Turning to the right to judicial protection in Article 25, Antkowiak and Gonza lament the slapdash expansion of its scope beyond the original or reasonably justifiable limit, thus introducing legal uncertainty. This, they hold, results from the Court’s dubious conflation of Articles 8 and 25 (p 226). Among human rights treaties, the American Convention is unique as it provides the broadest protection of thought and expression. Article 13 is the only human rights treaty provision that prohibits prior censorship, while Article 13(3) limits ‘indirect’ restrictions to free expression. In Chapter 7, Antkowiak and Gonza argue that these liberal provisions have secured a basis for the expansive use of freedom of expression guarantees as a tool for accountability. Indeed, the Inter-American Court pioneered the right of access to information held by the state, an innovation that influenced the practice of other human rights monitoring bodies (p 232). Conceiving freedom of expression as a crucial tool to restrict state power and improve democracy, the early Article 13 jurisprudence of the Court denounced state censorship and disproportionate limits on legitimate expression, leading to legislative reform and other indicators of its impact in cultivating a climate of tolerance and liberal democracy. After 2008, however, Antkowiak and Gonza identify the inexplicable adoption of restrictive, contradictory and unsupported interpretations of Article 13 (p 253). The Court began to adopt deferential attitudes towards states, resulting in permission of greater limitations on protected expression and more onerous obligations on the speakers. An additional concern which the authors identify in the freedom of expression jurisprudence of the Court is the tendency to find violations of Article 13(1) absent rigorous analysis of Article 13 in its entirety, and of the facts of a case in light of explicit terms and limits outlined in the American Convention (p 260). The more judicial assessment becomes opaque, the greater grows the discretion of the Court and states which can have chilling effects on freedom of expression. Recognizing the corrosive effect that these shortfalls may have on a broader category of civil and political rights, Antkowiak and Gonza make a cogent case for a return to the pre-2008 and more progressive interpretation of Article 13 (p 255) and advocate for the prohibition of criminal sanctions on expression (p 251), as well as the need to adopt ‘standards to foster vigorous public debate’ (p 256) so as to provide predictable standards for journalists and others who criticize state officials and institutions. Compared with other human rights treaties, the formulation of the right to property in Article 21 of the American Convention is more robust in its protective scope and import. In addition to requiring that ‘just compensation’ follow any deprivation of property, it provides a basis for the expansive interpretation of property to include intangible property such as intellectual property and stocks and communal property owned collectively (p 268). The jurisprudence surveyed in Chapter 8 demonstrates that by adopting a progressive and victim-centred approach to Article 21, the Court has become a pioneer in the international understanding of proprietary rights of indigenous people (p 269). By clarifying the rights-conferring character of the ties that indigenous communities have to their ancestral lands, the Court made a juridical innovation that brought previously excluded communities within the fold of legal protection. However, a few aspects of the Court’s property rights jurisprudence do not pass muster and are accordingly criticized by Antkowiak and Gonza. First, the authors point out that the Court has used inconsistent and vague formulae for determining what constitutes just compensation (p 275). Secondly, the Court has adopted an essentialist approach to determine communal ownership rights of indigenous peoples, thereby disregarding the possibility that the indigenous people may not necessarily live according to a ‘cultural script’ (p 272). The third concern arises from the way the Court evaluates the implications of major development projects on the local communities that depend on the affected natural resources (p 281). As with other regions, there has been an increase in the pursuit by governments and corporations of mega-projects that substantially impact natural resources on which a vulnerable constituency depends. In order to balance the interests of development with proprietary and cultural rights of affected communities, the Court adopts detailed safeguards for extractive industries and hydro-electricity projects, including securing the free, prior and informed consent of the affected community. Antkowiak and Gonza, however, critically note that these requirements are easily circumvented (p 282). To address this worrying trend and to better protect vital ancestral lands and resources, they propose and strongly advocate a robust right-to-life approach instead of the modest right-to-property approach (p 283). Remedial approaches of the Inter-American system are generally regarded as more advanced than those of comparable human rights systems. Taking cue from the restitutio in integrum principle, the Court has consistently construed Article 63 of the Inter-American Convention to mean that ‘any violation of an international obligation that has caused damage entails the obligation to repair it adequately’ (p 287). Thus, Antkowiak and Gonza observe that the reparative tools that the Court uses to wipe out the consequences of the illegal act and reestablish the conditions that, but for the impugned act, would probably have existed are extensive and varied. They include restitution, rehabilitation, satisfaction and guarantees of non-repetition, as well as pecuniary and non-pecuniary damages. Part of the reason why the Inter-American system has become a trail blazer in the area of reparations is that, unlike other comparable courts which are institutionally restricted, the Court has binding jurisdiction to order reparations. Yet, despite its robust model of reparations, Antkowiak and Gonza show, with reference to case law, how the Court has fallen short of reasonable expectations. A key concern raised by the authors is the need for a more intensively victim-centred approach to both monetary and non-monetary reparations. While conceding that the Court has had meaningful regard to victims’ preferences and taken the complex realities of certain vulnerable populations into its reparations calculus, Antkowiak and Gonza hold that more can and should be done to respond effectively to the needs of victims. Focusing on reparations in cases where victims are indigenous people, this chapter also argues that deeper engagement of indigenous communities in evaluating, designing and implementing non-monetary reparations is a crucial methodology to secure more equitable and sustainable relief (p 300). The recent reparations-related practice of the Court is, however, a source of concern. In particular, Antkowiak and Gonza highlight the tendency of the Court to neglect some justified individualized and collective requests for monetary damages, particularly in cases involving groups (p 294). In sum, The American Convention on Human Rights: Essential Rights is a carefully constructed, proficiently written and critically reasoned book. It offers a perceptive account of Inter-American jurisprudence that critiques its milestones and mistakes, and sets out the principled way forward. However, the book is not without flaws. A minor quibble is the lack of chapter summaries and the absence of a concluding chapter. On closer review, however, Chapter 1 appears to remedy these shortfalls. Turning back to the merits of this book, a number of its laudable aspects must be registered. First, its analysis is grounded on a systematic review of Inter-American practice in the light of comparative international human rights law: this makes it a work of distinct comparative value. Secondly, the Appendix of the Court's case law, which is listed by Convention Article following the book’s chapters, is unique in concept and unprecedented in scale. Thirdly, the rigorous and wide-ranging research offers keen insight into the socio-political context in which the Inter-American system operates. Lastly, it illustrates the ever growing convergence of jurisprudence of the United Nations and regional mechanisms on core aspects of essential rights. Hence, this book is a timely and well-conceived guide to a nuanced understanding of international human rights law in practice. © The Author(s) [2018]. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Human Rights Law Review Oxford University Press

Thomas M. Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights

Human Rights Law Review , Volume Advance Article (2) – May 8, 2018

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Abstract

The Inter-American human rights system is in many respects a trailblazer in international human rights law. Its most celebrated attribute is the rich vein of jurisprudence emanating from the two adjudicative bodies of the American Convention on Human Rights: the Inter-American Court of Human Rights (‘the Court’) and the Inter-American Commission on Human Rights (‘the Commission’). The judgments and advisory opinions of the Court, and published decisions, reports and other documents of the Commission are the Inter-American system’s chief export. A combination of a history of state-sponsored violence, unique socio-political factors, a civil society determined to see justice done, and a crop of creative jurists seated in the Commission and in the Court has seen the Inter-American system produce a number of notable firsts. Emblematic of these is having: the first human rights court to affirm indigenous rights to communal property; the first regional human rights body to hold that rape by state agents may constitute torture; the first human rights court to recognize an individual right to notice of consular assistance; and the sole human rights system to create an autonomous right to simple, prompt and effective judicial recourse (amparo). Yet, these remarkable merits sit alongside a few dispiriting shortfalls. In The American Convention on Human Rights: Essential Rights, Thomas M. Antkowiak, an Associate Professor of Law and Director of the Latin American Program at Seattle University School of Law, and Alejandra Gonza, Director of the International Human Rights Clinic at the University of Washington School of Law, agree that juridical innovations, a victim-focused approach and robust decisions have strengthened individual and collective rights in the Inter-American system, and protected the Convention rights of vulnerable petitioners against states and powerful commercial interests (p 2). On a critical note, however, they observe that certain decisions have diluted Convention rights, distorted legal concepts, departed from a victim-centred perspective, or neglected rigorous analysis and meticulous conceptual development (p 2). To remedy these jurisprudential lapses, Antkowiak and Gonza methodically highlight the specific instances that reflect a lack of judicial consistency or rigour, critique them in light of the objects of the American Convention and, most importantly, provide convincing alternative conceptual approaches. The book begins with an Introduction, useful in itself for the way in which it offers a concise and instructive overview of the Inter-American system, its principal institutional bodies and their interrelations. Chapter 2, which is concerned with equality, advances a careful interpretation of Article 24 of the American Convention. Article 24 provides: ‘All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.’ While noting the foundational status of equality as an organizing principle for societies and the legal framework, Antkowiak and Gonza point out that the two elements of this right (the right to equality before the law and the right to equal protection of the law) have polarized opinion on the content of this right. An objective reading of Article 24, they submit, shows that it established these two elements as autonomous rights, and this interpretation is both accepted and developed by the Court (p 37). Yet, Antkowiak and Gonza observe that the Court has in some cases interpreted Article 24 as an accessory right to Article 1(1), which requires states to respect Convention rights and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights ‘without any discrimination’ on the enumerated grounds, as well as on ‘any other social condition’. In a searching turn, this chapter meticulously presents conflicting case law to support the conclusion that the Inter-American system currently regards Article 24 and Article 1(1) as simultaneously separate concepts and in relation to each other (p 40). Even more worrying, note Antkowiak and Gonza, is the Court’s recent practice of restricting the scope of Article 24 to ‘the application or interpretation of a specific domestic law’ (p 37). As part of their critical and corrective approach, the authors raise persuasive principled objections to this unsupported practice (pp 38–40). Chapter 3 considers the right to life as outlined in Article 4 of the American Convention, and analyzes how the jurisprudence of the Court and Commission has clarified its content and expanded its scope. In contrast with the practice of comparable quasi-judicial bodies which defer to states, Antkowiak and Gonza note that, in line with Article 4, the Court has been assertive that (i) life begins at conception and (ii) conception starts ‘from the moment at which implantation [of the embryo in the mother’s uterus] occurs’ (p 73). Limitations on the right to life involving the use of lethal force are also considered in the context of law enforcement and armed conflict operations. Here, Antkowiak and Gonza demonstrate that, like other human rights treaty monitoring bodies, the Court has used flexible criteria for determining whether deprivation of life is arbitrary (p 83). The continued application of the right to life in armed conflict has consistently been affirmed in Inter-American jurisprudence, with both the Court and Commission holding that international humanitarian law (IHL) and American Convention rights apply co-extensively (p 86). However, Antkowiak and Gonza note that the Court has been reticent to apply IHL intensively, more so in assessing proportionality in attack or specific obligations in the conduct of hostilities (p 88). Although this important point concurs with the findings of the broader literature on point, it may have been more helpful to proffer an alternative approach from comparable experiences. Another significant subject in Chapter 3 is the question of capital punishment which, though not initially prohibited in the American Convention, is shown to be increasingly regarded as tending towards complete abolition the world over. Crucially, Antkowiak and Gonza note that the Court has been instrumental in staying executions (p 81) and challenging the legality of statutes that impose a mandatory death penalty on conviction (p 78). One of the key innovations of the Inter-American system is the crime of enforced disappearance, a concept that developed out of necessity given the prevalence of the practice during the period of authoritarian and military rule in Latin America. Antkowiak and Gonza chart the conceptual development of this crime which presently not only violates the right to life, but also other rights, including the right to personal integrity, personal liberty and juridical personality (pp 92–7). Antkowiak and Gonza note, in Chapter 4, that the approach of the Inter-American system has been to advance the protection of personal integrity by demanding more rigorous safeguards of states and being firm in finding violations of Article 5 of the American Convention (p 104). This indicates a tendency towards greater possibility of future classification of presently less serious breaches of personal autonomy as more serious violations of the right to humane treatment. Antkowiak and Gonza also show that protection of personal integrity is an area in which a high degree of convergence has occurred in the doctrine and practice of human rights treaty bodies (p 111). The authors identify the ‘cross-fertilization’ of jurisprudence among these human rights treaty bodies as a key contributor to the ever growing protections for personal integrity and more stringent standards across different human rights systems (p 105). Contributions of international criminal tribunals to the definition of some of the constitutive conduct of Article 5 violations are likewise acknowledged by the authors who show that while Inter-American jurisprudence generally comports with international best practice, there is need for greater vigilance to avert a reverse (p 116). The Inter-American system’s own jurisprudence has also played a critical role in developing the content of Article 5. With specific reference to the Court, Antkowiak and Gonza demonstrate that inward-looking approaches are equally useful because, drawing on the Commission and the Inter-American Convention to Prevent and Punish Torture, the Court has rendered judgments of crucial import (pp 109–10). Thus the Court’s interpretive approach has extended the scope of prohibited conduct, expanded state duties and broadened access to redress for serious yet difficult to prove offences. Yet, for all its impressive accomplishments, critical observers, as are Antkowiak and Gonza, can detect some striking shortfalls in the Court’s Article 5 jurisprudence. First, the Court’s interpretive approach to Article 5 is not always consistent, nor is its tendency to conclude that ‘an act can breach only Article 5(1) and not 5(2)’ transparent (p 106). Secondly, the Court’s reticence to find breaches of Article 5(2) has resulted in the more recent and troubling practice of disregarding Article 5 violations altogether (p 129). Chapter 5 turns to a consideration of jurisprudence on Article 7 of the American Convention, which establishes a general right of all persons to not be deprived illegally or arbitrarily of their liberty, and specifies the guarantees for persons deprived of their liberty. The implication of this provision is that deprivation of liberty is only permissible if (i) its procedures and reasons are established by law and (ii) the detention or arrest is not arbitrary (p 141). Antkowiak and Gonza welcome a number of key advances in the approach of the Inter-American system to personal liberty. First, although detailed safeguards originally addressed criminal proceedings, the Court and Commission have progressively read them to apply also to administrative deprivation of liberty such as cases of immigration detention (p 159). Secondly, both the Court and Commission have overcome the barrier posed by an evidential requirement of specific details of the location and duration of captivity. Thirdly, the Court has extended the material scope of Article 7 by establishing that violations may be carried out by non-state actors, even absent the orders or control of a state (p 145). Despite this, Antkowiak and Gonza find worrying methodological problems in the Court’s approach to the principles of legality and arbitrariness, which has been inconsistent over the years (p 160). Although the two principles are closely linked, the Court has drawn a bright-line distinction between them, and this has resulted in the growing practice of the Court to disregard rigorous examination of arbitrariness once it finds an illegal detention (p 161). Another flaw identified by the authors is the Court’s current practice of exclusively considering the text of national law as the decisive basis for assessing the legality of detention (p 161). Coupled with the mistaken attempt to draw a sharp distinction between legality and arbitrariness, it is possible for detention to be technically legal in terms of compliance with national standards, but still arbitrary in terms of international law. This has the dual effect of expanding state discretion over detention practices and limiting or distorting the import of international human rights law. A further critique of the Court’s Article 7 jurisprudence raised by Antkowiak and Gonza is its increasing deference to states, whereby the Court is disinclined to criticize deficient national laws that do not offer the minimum safeguards. They observe that the Court ‘has only very rarely condemned national law in this context’ (p 167). Joint consideration of the rights to due process and judicial protection is given in Chapter 6. Starting with an analysis of Article 8 (the right to a fair trial), Antkowiak and Gonza welcome how its due process protections have extended to regulate proceedings of any public authority, be they judicial, administrative or legislative, as long as its decisions determine individual rights and obligations (p 179). Another significant advance related to Article 8 is the development of a right to justice that enunciates a guarantee against impunity by requiring that, even where a case ended with an acquittal by final judgment, investigations may be reopened if new evidence emerges or if it can be demonstrated that the double jeopardy rule should not apply (p 213). Turning to the right to judicial protection in Article 25, Antkowiak and Gonza lament the slapdash expansion of its scope beyond the original or reasonably justifiable limit, thus introducing legal uncertainty. This, they hold, results from the Court’s dubious conflation of Articles 8 and 25 (p 226). Among human rights treaties, the American Convention is unique as it provides the broadest protection of thought and expression. Article 13 is the only human rights treaty provision that prohibits prior censorship, while Article 13(3) limits ‘indirect’ restrictions to free expression. In Chapter 7, Antkowiak and Gonza argue that these liberal provisions have secured a basis for the expansive use of freedom of expression guarantees as a tool for accountability. Indeed, the Inter-American Court pioneered the right of access to information held by the state, an innovation that influenced the practice of other human rights monitoring bodies (p 232). Conceiving freedom of expression as a crucial tool to restrict state power and improve democracy, the early Article 13 jurisprudence of the Court denounced state censorship and disproportionate limits on legitimate expression, leading to legislative reform and other indicators of its impact in cultivating a climate of tolerance and liberal democracy. After 2008, however, Antkowiak and Gonza identify the inexplicable adoption of restrictive, contradictory and unsupported interpretations of Article 13 (p 253). The Court began to adopt deferential attitudes towards states, resulting in permission of greater limitations on protected expression and more onerous obligations on the speakers. An additional concern which the authors identify in the freedom of expression jurisprudence of the Court is the tendency to find violations of Article 13(1) absent rigorous analysis of Article 13 in its entirety, and of the facts of a case in light of explicit terms and limits outlined in the American Convention (p 260). The more judicial assessment becomes opaque, the greater grows the discretion of the Court and states which can have chilling effects on freedom of expression. Recognizing the corrosive effect that these shortfalls may have on a broader category of civil and political rights, Antkowiak and Gonza make a cogent case for a return to the pre-2008 and more progressive interpretation of Article 13 (p 255) and advocate for the prohibition of criminal sanctions on expression (p 251), as well as the need to adopt ‘standards to foster vigorous public debate’ (p 256) so as to provide predictable standards for journalists and others who criticize state officials and institutions. Compared with other human rights treaties, the formulation of the right to property in Article 21 of the American Convention is more robust in its protective scope and import. In addition to requiring that ‘just compensation’ follow any deprivation of property, it provides a basis for the expansive interpretation of property to include intangible property such as intellectual property and stocks and communal property owned collectively (p 268). The jurisprudence surveyed in Chapter 8 demonstrates that by adopting a progressive and victim-centred approach to Article 21, the Court has become a pioneer in the international understanding of proprietary rights of indigenous people (p 269). By clarifying the rights-conferring character of the ties that indigenous communities have to their ancestral lands, the Court made a juridical innovation that brought previously excluded communities within the fold of legal protection. However, a few aspects of the Court’s property rights jurisprudence do not pass muster and are accordingly criticized by Antkowiak and Gonza. First, the authors point out that the Court has used inconsistent and vague formulae for determining what constitutes just compensation (p 275). Secondly, the Court has adopted an essentialist approach to determine communal ownership rights of indigenous peoples, thereby disregarding the possibility that the indigenous people may not necessarily live according to a ‘cultural script’ (p 272). The third concern arises from the way the Court evaluates the implications of major development projects on the local communities that depend on the affected natural resources (p 281). As with other regions, there has been an increase in the pursuit by governments and corporations of mega-projects that substantially impact natural resources on which a vulnerable constituency depends. In order to balance the interests of development with proprietary and cultural rights of affected communities, the Court adopts detailed safeguards for extractive industries and hydro-electricity projects, including securing the free, prior and informed consent of the affected community. Antkowiak and Gonza, however, critically note that these requirements are easily circumvented (p 282). To address this worrying trend and to better protect vital ancestral lands and resources, they propose and strongly advocate a robust right-to-life approach instead of the modest right-to-property approach (p 283). Remedial approaches of the Inter-American system are generally regarded as more advanced than those of comparable human rights systems. Taking cue from the restitutio in integrum principle, the Court has consistently construed Article 63 of the Inter-American Convention to mean that ‘any violation of an international obligation that has caused damage entails the obligation to repair it adequately’ (p 287). Thus, Antkowiak and Gonza observe that the reparative tools that the Court uses to wipe out the consequences of the illegal act and reestablish the conditions that, but for the impugned act, would probably have existed are extensive and varied. They include restitution, rehabilitation, satisfaction and guarantees of non-repetition, as well as pecuniary and non-pecuniary damages. Part of the reason why the Inter-American system has become a trail blazer in the area of reparations is that, unlike other comparable courts which are institutionally restricted, the Court has binding jurisdiction to order reparations. Yet, despite its robust model of reparations, Antkowiak and Gonza show, with reference to case law, how the Court has fallen short of reasonable expectations. A key concern raised by the authors is the need for a more intensively victim-centred approach to both monetary and non-monetary reparations. While conceding that the Court has had meaningful regard to victims’ preferences and taken the complex realities of certain vulnerable populations into its reparations calculus, Antkowiak and Gonza hold that more can and should be done to respond effectively to the needs of victims. Focusing on reparations in cases where victims are indigenous people, this chapter also argues that deeper engagement of indigenous communities in evaluating, designing and implementing non-monetary reparations is a crucial methodology to secure more equitable and sustainable relief (p 300). The recent reparations-related practice of the Court is, however, a source of concern. In particular, Antkowiak and Gonza highlight the tendency of the Court to neglect some justified individualized and collective requests for monetary damages, particularly in cases involving groups (p 294). In sum, The American Convention on Human Rights: Essential Rights is a carefully constructed, proficiently written and critically reasoned book. It offers a perceptive account of Inter-American jurisprudence that critiques its milestones and mistakes, and sets out the principled way forward. However, the book is not without flaws. A minor quibble is the lack of chapter summaries and the absence of a concluding chapter. On closer review, however, Chapter 1 appears to remedy these shortfalls. Turning back to the merits of this book, a number of its laudable aspects must be registered. First, its analysis is grounded on a systematic review of Inter-American practice in the light of comparative international human rights law: this makes it a work of distinct comparative value. Secondly, the Appendix of the Court's case law, which is listed by Convention Article following the book’s chapters, is unique in concept and unprecedented in scale. Thirdly, the rigorous and wide-ranging research offers keen insight into the socio-political context in which the Inter-American system operates. Lastly, it illustrates the ever growing convergence of jurisprudence of the United Nations and regional mechanisms on core aspects of essential rights. Hence, this book is a timely and well-conceived guide to a nuanced understanding of international human rights law in practice. © The Author(s) [2018]. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Human Rights Law ReviewOxford University Press

Published: May 8, 2018

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