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The “Formally Feminist State”: A Potential New Player in the Inter-American Human Rights System?

  • Paulina García-Del Moral (a1)

Extract

A decade ago, the Inter-American Court of Human Rights issued a landmark judgment in the case of González and Others (“Cotton Field”) v. Mexico, which addressed the abduction and subsequent sexual murder of three young women in the industrial border city of Ciudad Juárez—a place known for systematic gender violence and impunity. For the victims’ next of kin and the feminist and human rights activists involved in the litigation, the murders constituted feminicidios (feminicides). The resulting judgment has been celebrated not only for developing new standards for women's human rights internationally, but also for its domestic impact in the form of innovative feminist laws and policies in Mexico and other Latin American countries. With a focus on Cotton Field’s impact on Mexico, this essay explores the potential rise of the “formally feminist state”—a state that adopts domestic feminist legislation and policies but then resists their implementation—as a new player on the stage of the inter-American human rights system (IAS). Drawing on insights from American sociolegal analyses on judicial deference to the presence of policies and institutional mechanisms as indicators of compliance with antidiscrimination laws, I suggest that this new player may create a different set of challenges for courts in assessing states’ lack of compliance with norms on women's human rights.

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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 González and Others (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 205 (Nov. 16, 2009).

2 See, e.g., Julia Monárrez Fragoso, Trama de una Injusticia: Feminicidio Sexual Sistémico en Ciudad Juárez (2013); Paulina García-Del Moral, Feminicidio: TWAIL in Action, 110 AJIL Unbound 31 (2016); Marcela Lagarde, Preface: Feminist Keys for Understanding Feminicide: Theoretical, Political, and Legal Construction, in Terrorizing Women: Feminicide in the Americas xi-xxv (Rosa-Linda Fregoso & Cynthia Bejarano eds., 2010).

3 See, e.g., Caroline Bettinger-López, The Challenge of Domestic Implementation of International Human Rights Law in the Cotton Field Case, 15 CUNY L. Rev. 315 (2012); Ruth Rubio-Marin & Clara Sandoval, Engendering the Reparations Jurisprudence of the Inter-American Court of Human Rights: The Promise of the Cotton Field Judgment, 33 Human Rights Q. 1062 (2010); Patricia Olamendi, Feminicidio en México (2017); Paulina García-Del Moral & Pamela Neumann, The Making and Unmaking of Feminicidio/Femicidio Laws in Mexico and Nicaragua, 53 L. & Soc'y Rev. 452 (2019).

4 Rubio-Marín & Sandoval, supra note 3.

5 According to Chapter V, Article 325 of the Federal Criminal Code, gender reasons exist when: (1) the victim presents signs of sexual violence of any kind; (2) the victim was subjected to shameful or degrading injuries or mutilations before or after being deprived of life, including acts of necrophilia; (3) there is a history of or information about any kind of violence against the victim in the family, work, or school environment by the active subject; (4) there is a sentimental, affective, or trusting relationship between the active subject and the victim; (5) there were threats linked to the criminal act, harassment, or injuries by the active subject against the victim; (6) the victim was left without means of communicating with anyone else (incomunicada), for however long a time period prior to the deprivation of life; or (7) the victim's body was exposed or exhibited in a public place. This crime carries a prison sentence of forty to sixty years, in addition to monetary sanctions. As a means to combat impunity, the statute also contains provisions to punish public servants who hinder the administration of justice, “whether maliciously or negligently.” Potential punishments include a prison term of three to eight years, fines, and removal or dismissal from office.

6 LGAMVLV, Chapter V, Art. 21 defines feminicidal violence as “the extreme form of gender violence against women as an outcome of the violation of women's human rights in the public and private spheres involving the combination of misogynous conducts that may lead to societal and state impunity and result in the homicide or other violent deaths of women.”

7 Id., art. 26.

8 Amparo en Revisión 554/2013, Suprema Corte de Justicia de la Nación (2015).

10 Id.

11 Id. at 15.

12 Interview with Pablo Navarrete, Juridical Coordinator of the National Women's Institute (INMUJERES) (Mexico City, March 2014).

13 Much recent feminist activism has focused on both feminicidios disguised as suicides and actual suicides resulting from sustained gender discrimination or abuse. See, e.g., Patricia Sulbarán Lovera, Violencia Contra la Mujer: Qué es el Suicidio Feminicida y Por Qué El Salvador es el Único País de América Latina que lo Condena, BBC Mundo (Nov. 20, 2018).

14 OCNF, supra note 9.

15 Skype Interview with Rodolfo Domínguez Márquez, OCNF litigator (April 2014).

16 OCNF, supra note 9, at 180.

17 Cecilia Menjívar & Shannon Drysdale Walsh, Subverting Justice: Socio-Legal Determinants of Impunity for Violence against Women in Guatemala, 5 Laws 31 (2016).

18 Id. at [7].

19 Id. at [17].

20 Interview with Pablo Navarrete, supra note 12.

21 OCNF, supra note 9, at 201.

22 Amparo Directo 114/2016, Sexto Tribunal Colegiado del Primer Circuito, sentence of January 18, 2018.

23 OCNF, supra note 9.

24 Hazel Zamora Mendieta, Pide Observatorio Ciudadano Terminar Simulación en CONAVIM, Milenio (Mar. 17, 2019).

25 González and Others (“Campo Algodonero”) v. Mexico, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. May 21, 2013).

26 González and Others (“Cotton Field”) v. Mexico, supra note 1, at paras. 502 & 521.

27 These critiques were expressed by the Commission and the plaintiffs in reports for the Inter-American Court's two previous monitoring decisions on the Cotton Field judgment. However, the Commission and the plaintiffs failed to provide the Court with new observations in 2013.

28 See, e.g., Lauren B. Edelman et al., When Organizations Rule: Judicial Deference to Institutionalized Structures, 117 Am. J. Soc. 888 (2011).

29 Id.

30 See, e.g., Veliz Franco and Others v. Guatemala, Preliminary Objection, Merits, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 277 (May 19, 2014); Velásquez Paiz v. Guatemala, Preliminary Objection, Merits, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 307 (Nov. 19, 2015).

The “Formally Feminist State”: A Potential New Player in the Inter-American Human Rights System?

  • Paulina García-Del Moral (a1)

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