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Conservative Governments and Latin America's Human Rights Landscape

  • Jorge Contesse (a1)

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In 2009, as the American Convention on Human Rights turned forty, Left-wing governments ruled in almost all Latin American countries. The democratization wave that began in the late 1980s had produced a seemingly hegemonic turn to the Left—the so-called “Pink Tide.” A decade later, the political landscape was radically different. With only a few exceptions, Right-wing governments are in power throughout Latin America. The implications of the conservative wave have been felt in a number of areas—including human rights. This essay explores the ways in which the new conservative governments of Latin American have tried to curb the inter-American human rights system and examines the potential long-term consequences that their efforts may have on the regional system and the protection of human rights. It then suggests possible avenues for sound engagement between states and the system, observing that the Inter-American Court's expansive case law may cause more harm in the long run.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 See James D. Bowen, The Right in “New Left” Latin America, 3 J. Pol. Latin Am. 99 (2011).

2 See The Resilience of the Latin American Right (Juan Pablo Luna & Cristóbal Rovira Kaltwasser eds., 2014); Omar G. Encarnación, The Rise and Fall of the Latin American Left, The Nation (May 9, 2018).

3 See Jorge Contesse, Resisting the Inter-American Human Rights System, 44 Yale J. Int'l L. 179 (2019); Alexandra Huneeus & René Urueña, Treaty Exit and Latin America's Constitutional Courts, 111 AJIL Unbound 456 (2017); Ximena Soley & Silvia Steininger, Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights, 14 Int'l J. L. Context 237 (2018).

5 Id.

6 See Letter from José Miguel Vivanco, Human Rights Watch Americas Director (Apr. 25, 2019).

7 Id.

8 Id.

9 @CIDH, Twitter (Apr. 23, 2019, 2:04 PM).

10 According to this doctrine, domestic judges and national authorities are directly bound by the American Convention and the Court's interpretation of the Convention. See Symposium on the Constitutionalization of International Law in Latin America, 109 AJIL Unbound 89 (2015).

11 Once the five governments’ letter to the Inter-American Commission was made public, the Chilean House of Representatives summoned the Minister of Justice and Human Rights to explain the statement. Before the House, the minister expressed concerns with the inter-American system's performance, ranging from the Court's handling of public policy issues that should be left to states’ democratic processes to the Court's misuse of sources of international law. See Gobierno Reiteró Fundamentos de Carta a Comisión Interamericana de DD.HH, Cámara de Diputados de Chile (May 13, 2019).

12 Barrios Altos v. Peru, Merits, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001).

13 See id. at 10 (explaining the doctrine).

14 Gelman v. Uruguay, Merits and Reparations, Inter-Am Ct. H.R. (ser. C) No. 221 (Feb. 24, 2011).

16 Lagos del Campo v. Peru, Preliminary Exceptions, Merits, Reparations and Costs, Judgement, Inter-Am. Ct. H.R. (ser. C) No. 340 (Aug. 31, 2017). Article 26 of the American Convention provides: “The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.”

17 Id. at para. 139.

18 See Poblete Vilches and Others v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 349 (Mar. 8, 2018), Concurring Opinion by Sierra Porto, J., ¶ 17.

20 See Jorge Contesse, Sexual Orientation and Gender Identity in Inter-American Human Rights Law, 44 N.C. J. Int'l L. 353 (2019).

21 See Advisory Opinion OC-24/17, supra note 15.

23 See Alexandra Huneeus, When Illiberals Embrace Human Rights, 113 AJIL Unbound 380 (2019); Laurence R. Helfer, Populism and International Human Rights Institutions: A Survival Guide, in Human Rights in a Time of Populism: Challenges and Responses (Gerald L. Neuman ed., forthcoming 2019).

24 See Jorge Contesse, Case of Barrios Altos and La Cantuta v. Peru, 113 AJIL 568 (2019).

25 In previous decisions, the Inter-American Court had declared that amnesty laws “lack legal effect.” See Barrios Altos v. Peru, supra note 12, para. 44.

26 Id.

28 See Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 EJIL 491 (2008).

29 The Inter-American Commission routinely issues precautionary measures on behalf of individuals who face imminent risk of irreparable harm to their right to life or physical integrity.

30 As judge Sierra Porto has written, “the Inter-American Court is an international tribunal and, therefore, it is reasonable to expect that it acts as such.” Poblete Vilches and Others v. Chile, Merits, Reparations and Costs, Concurring Opinion by Sierra Porto, J. para. 22 (March 8, 2018) (emphasis added). On the distinction between international and constitutional authority, see Jorge Contesse, The International Authority of the Inter-American Court of Human Rights: A Critique of Conventionality Control, 22 Int'l J. Hum. Rts. 1168 (2018).

Conservative Governments and Latin America's Human Rights Landscape

  • Jorge Contesse (a1)

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