1. Introduction: A scholarship at a tipping point
‘What a strange coincidence’ comes to mind initially when pondering the publication, barely a few years apart, of two monographs whose titles and synopsis offer very similar promises. Burgorgue-Larsen explores ‘The 3 Regional Human Rights Courts’ (hereafter The 3 Courts), which ‘compares and contrasts’ each system, with ‘a critically engaged look at both the creation and the workings of the three regional human-rights systems’.Footnote 1 Roberts’ ‘Alternative Approaches to Human Rights’ (hereafter Alternative Approaches) looks into ‘[t]he disparate Historical Paths of the European, Inter-American and African Regional Human Rights Systems’, analysing the ‘comparative historical evolution of the European, Inter-American and African regional human rights systems’.Footnote 2
Starting with broadly the same questions and goals (comparing the parallel creation and evolutions of three independent yet institutionally remarkably similar regional human rights systems) is indeed puzzling. Both monographs deliver mainly an explanatory account, combining empirical descriptions with an analytical–doctrinal approach. But more striking is the conundrum that appears when reading both monographs: they go about answering this similar question extremely differently … and yet are very coherent with each other.
A more thorough review of each book will be provided in the next section, but a brief overview of their main arguments will here be useful. The 3 Courts finds that to understand the development, successes and failures of regional human right systems depends on how these systems (and from there, the people in these systems) navigate state sovereignty. Differences or similarities between the three systems’ development can be attributed to saliency that questions of sovereignty have in their constituency, and the response of the system to these concerns. These responses, themselves, are shaped by a multitude of sociolegal factors, including the identity and background of decision-makers, their openness to external sources, their monitoring of the implementation of the decisions. On the other hand, Alternative Approaches focuses more on the feedback loop between the cases brought to the systems (in all their social, political, and legal context) and the body of case law and decisions that the systems adopt in turn. With a more historical institutionalist approach and more attached to the body of case law of each system, it breaks down how one needs to contextualize the jurisprudence of each body not only within its institutional and normative set-up, but also its idiosyncratic socio-cultural context. This explains the various trajectories of each system, from diverging jurisprudence to different institutional evolutions, despite their similar set-up at first glance.
The methods deployed in both monographs differ and their structure diverge, and therefore neither is a repetition of the other. Instead, they converge at some points, revert to their explorations of different sub-issues and reconvene again. Where one bypasses a specific question or method, the other complements by delivering a discussion on the missing aspect. This hints at a degree of underlying, implicit consensus between both authors, a consensus which is worth exploring and unpacking, as it marks the foundation not of a new theory, but rather a new field of research.
Three factors can probably be identified as playing a role in the timing: ripeness of the field, relevance of the question and the agenda of the courts. ‘Ripeness of the field’ refers to a sort of critical mass of scholarship on each individual system. We have decades of legal, social, sociological, historical and political reflections on the EuropeanFootnote 3 and Inter-American systems.Footnote 4 The African system has now entered the dance for long enough that it also provides substantial material to reflect on.Footnote 5 There is, practically speaking, content to work with: archives to explore, case law to analyse, reports to comb through, key persons of interest to interview, statistics to draw up, and institutional and procedural changes to evaluate. Second, international adjudicative systems, in general, have seen a rise in academic interest from various fields, with massively funded interdisciplinary projects and centres such as the PICT since 1997 in the New York University and SOAS (then UCL’s Centre for International Courts and Tribunals since 2007), PluriCourts in the University of Oslo (2013–2023), and iCourts in the University of Copenhagen (ongoing). Both monographs and the research agenda they implicitly set up build on this existing scholarship from authors such as Madsen, Çalı, Alter, or Huneeus, as will be described in this review essay. But they adopt a different epistemology, framing, and set of goals and questions. The critical mass of international law and international courts literature was essential, but Roberts and Burgorgue-Larsen’s updated approach surfaces new knowledge and understanding which was so far either left uncovered, implicit, assumed, or underestimated. Added to this academic relevance is the amount of discourse they generate among the broader public: the UK’s constant threat to leave the European Court of Human Rights (ECtHR),Footnote 6 the criticism against the International Criminal Court (ICC) for its focus on prosecuting criminals from the Global South,Footnote 7 the International Court of Justice (ICJ) catapulted at the top of every single newsfeed in 2024 for the South Africa v. Israel case,Footnote 8 or the Court of Justice of the European Union (CJEU)’s high-profile rulings involving multiple GAFAs.Footnote 9 In a world where international law seems both everywhere and nowhere anymore, regional judicial and quasi-judicial systems capture the attention of policymakers, commentators, and somehow, laypersons. Thirdly, the three regional systems, and especially their courts, have for the last few years gone out of their way to set themselves apart from any other international institution or even any other international court. Meeting once a year very officially and releasing common press statements, the three ‘sister courts’Footnote 10 want to be taken as the independent part of a collaborative whole.
So perhaps it is not that surprising, in the end, that two scholars ended up tackling the tremendously difficult task of taking stock of how the three systems have fared and evolved since their creation. This short review essay would like to argue that rather than a coincidence, it may be a sign of the times. By their similar topic, different approaches yet coherent and complementary conclusions, both Burgorgue-Larsen and Roberts set the foundations of a field that has been bubbling for the last few years: the comparative study of regional human rights systems. By comparing and contrasting both works, we can sketch the boundaries of this field as an autonomous area of study, grown – but now emancipated – from the neighbouring international human rights law or international courts. This review contends that the monographs outline a new, distinct field of research rather than contributing to international human rights law. This new field is the fruit of scientific convergenceFootnote 11: departing from and simultaneously building on international human rights, international relations, sociology of law and general political science. Instead, the parameters of the field are its object of interest, its broad research questions, its methodological approaches and its goals. A consensus on those parameters and constitutive elements is what characterizes the new field, and differentiates the emerging realm from neighbouring subjects.Footnote 12
The objects in question are ‘Regional Human Rights Systems’, characterized by their state membership, their focus on human rights specifically and with both a textual (a Human Rights Charter, Convention, Treaty …) and institutional component (at least one judicial or quasi-judicial organ to implement the text). This new field approaches its object from an inherently interdisciplinary perspective. It sheds new light on both international human rights law and the study of international organizations by refusing to engage only with one or the other. A ruling cannot be analysed outside of the sociological inner workings of the regional court; theorizing political backlash from states cannot be disjointed from the doctrinal analysis of the rulings or decisions delivered. By taking a more specialized focus than international human rights law, the field embraces a more in-depth and interdisciplinary toolbox to explore all facets of regional human rights. A wider range of questions can thus be explored, going beyond what previous research agendas have identified – from the traditional challenges of compliance to the sociology of commissioners and the communication practices of registrars.
The field is therefore not limited to what Roberts and Burgorgue-Larsen include in their monographs. The focus of this review on these two monographs is justified by their unique positioning vis-à-vis the existing literature and their length provides ample content to sketch out a coherent new field. But they still only represent two perspectives, from two sociolegal researchers based in the Global North. Whether this truly becomes an emancipated and autonomous branch of research will ultimately depend on subsequent contributions by other researchers embracing the novelty and features of this new field as loosely delineated in Section 4. It is too early to tell whether this emerging field will lead to a full re-evaluation of international human rights law or the sociology of law and courts. Nonetheless, the relevance of this new field lies in its ability to explore new questions and provide more complex answers, tailored to regional human rights systems.
2. ‘The three courts’ and their ‘alternative approaches to human rights’: An initial review
2.1. Individual overviews
This essay will start with an overview of both monographs in question, starting with Roberts’ Alternative Approaches.
The thrust of Roberts’ thesis is as follows: the evolution of a regional human rights system is first and foremost shaped by the kind of cases that are brought before it.Footnote 13 These cases are the fruits of the interactions between institutional and procedural rules, evolving case-law creating (dis)incentives to litigate, and national and sub-national context(s). The argument is one of path-dependence.Footnote 14 Structurally, the monograph starts with an introduction containing a literature review and the general theoretical framework of the book. Three chapters follow. In each of the first two chapters – ‘Foundational Moments’ (Chapter 2) and ‘Struggles’ (Chapter 3) – Roberts covers one system after the other rather than jumping between systems. Subsequently, ‘Comparisons’ (Chapter 4) brings together insights yielded by the previous two chapters, taking stock of the path that each system ended up taking and why. It also offers normative conclusions about the institutional and procedural set-up of regional human rights systems. The book is capped off with a structural conclusion re-stating the diversity of trajectories that each system has had, and what to consider when envisioning future comparable mechanisms.
Methodologically, Roberts draws from doctrinal analysis and historical institutionalism, meshing them together in a particularly effective manner. This flows from the theoretical framework itself: ‘the institutional form of the various regional rights systems should be understood as both constituting and constituted by the rights struggles that have come before them’.Footnote 15 Thus, Roberts can provide in-depth doctrinal analysis of the jurisprudence of each system, and link not just the ruling, but the doctrinal analysis of the ruling, to the context in which it was provided. For example, he identifies three phases to the work of the African Commission: before the 1990s, 1990s to 2000s, 2010s to the present time.Footnote 16 Each period is separated by what is virtually a critical juncture, through a change in either procedures or national contexts; and within each path-dependent period are specific cases that are thoroughly analysed to link the body of work of the Commission during that time to this new context. The advantage is that in doing so, the reader receives an excellent picture of each system’s trajectory, and the constant feedback loop between context, institutions and decisions.
In The 3 Courts, Burgorgue-Larsen goes about this comparative exploration of the three regional systems very differently. The main theme, rather than thesis, is that the trajectory of each system comes down to how they navigate state sovereignty and national interest: against it, around it … or supporting it.Footnote 17 This means understanding how sensitive their constituencies were/are to questions of sovereignty, and how the legal, institutional and sociological makeup of each institution gave it different tools to navigate this territory.
This second monograph, after its relatively short introduction, also starts with the geopolitical contexts of the drafting and adoption of each system (Chapter 1). Chapters 2 and 3 (under Part 1 ‘Evolution’) look at some key institutional and procedural changes they have gone through, drawing parallels or identifying key differences. This includes the respective roles of the Commission and the Court in each system,Footnote 18 the multiplication of protocols or other conventionsFootnote 19 or the appointment procedures and impact of the makeup of the bench.Footnote 20 The second part, called ‘Interpretation’, covers Chapters 4 and 5. The author coins ‘decompartmentalization’ as the key notion to understand the substantive work of each system.Footnote 21 For Burgorgue-Larsen, one feature all three systems have in common is this attempt to open their decision-making to external sourcesFootnote 22 to expand the scope of rights, and support new interpretations, by innovatively combining rights existing in their own normative instruments for example. The last part is titled ‘Application’ (Chapter 6 and Chapter 7) and takes ‘synergies’ as its key concept to explore the constitutional, social, and political incentives that various national and subnational actors must work with to support the system (or not). The book closes with a conclusion gathering insights gained regarding the role that ‘irreducible sovereignty’ has played and continues to play today.
Methodologically, the book takes advantage of its length (576 pages) and broad scope to draw from a multitude of approaches, rather than subscribing to a specific one. The author borrows from historical and biographical approaches,Footnote 23 constitutional history,Footnote 24 case-law exegesis,Footnote 25 and more implicitly a sort of data triangulation and discourse analysis to identify the role of each actor in detail (for example, to explore the implementation issues in the African systemFootnote 26). The book constantly goes from one system to the other: what can be learnt of the comparison is not left for the end of the book, or even the end of each chapter. It is a double-edged sword: on the one hand, it successfully makes a case for a single epistemological identity of all three systems that must be studied together. On the other hand, it is sometimes challenging to know how a given system is doing at any point in time, as it is constantly only one third of a whole assessment.
2.2. Between differences and coherence
These are not two radically opposed monographs. On many issues, they reach similar conclusions. For Europe: the political savviness of the early Commission was key to reassure states initially, and the key challenge is now the problematic full judicialization of the system through Protocol 11. For Latin America: the bold behaviour of the early Commission placed it on the map as a regional actor that could not be ignored, and the system’s focus on social rights set it apart from its European brethren. However, it was slowed down by difficulties for the Court and Commission to find their footing around each other, and today by the limited support of states. For Africa: despite some ambitious decisions of both organs, non-implementation remains endemic. Additionally, the African system must now deal with the partial capture of the Commission by states in the last few years, and the difficulty for the Court to balance an ambitious jurisprudence with states withdrawing from the framework.
Additionally, neither is a work of comparative human rights law. Both are committed to the comparative methods, but of the systems as a whole, rather than specific procedures or decisions. They often analyse specific questions or aspects of a given system without making a rigorous comparison with the other. The comparison occurs at the level of entire systems rather than these individual issues. For example, Roberts engages in a fascinating discussion of the Latin American system’s body of work on gender and violence,Footnote 27 but does not cover the same question in the European system. This is part of the deliberate embedding of each system in its context, with both authors identifying what are the most relevant features to include, rather than strictly and systematically engaging comparison. Most of the time, that is not problematic, especially from the perspective of legal scholars. Social scientists, however, might raise an eyebrow at the lack of clear selection strategy. Burgorgue-Larsen, for example, convincingly argues for the importance of key personalities in the development of each system. These include the likes of Pierre-Henri Teitgen,Footnote 28 Kéba Mbaye,Footnote 29 or Margaret May Macaulay.Footnote 30 But there is no justification as to why there is insight to be gained from a legal biography of their life, rather than any other judge, commissioner or lawyer, beyond that they ‘deserve attention’.Footnote 31
Lastly, both books display differences. Their goal may be the same (retracing the social, legal, institutional, and political evolution of all three systems) but their approaches differ starkly. Roberts has a clear theoretical framework to support throughout, builds on solid epistemic grounds, and takes the body of work of each system to be what matters in the end. Burgorgue-Larsen has a much looser methodology and is more interested in the sociolegal dynamics in and around the systems than the normative content of the case law on key issue areas. This vastly broadens the scope of her work, compared to Roberts, covering for example the implementation struggles which are absent from Robert’s monograph. On the other hand, with his focus on the case-law throughout, Roberts manages to create a sort of jurisprudential identity for each system, a collage of key issues on which each Court has developed particular expertise, the various challenges they faced and how this is all linked together. Burgorgue-Larsen, in a more sociolegal tradition, spends time detailing the links of each system with civil society organizations (progressive and conservative), domestic judiciaries, or other organs of the regional system such as the Committee of Ministers in EuropeFootnote 32 or the Executive Council of the African Union.Footnote 33 These institutions appear in Robert’s accounts, but they do so sporadically, when relevant for specific cases or issues.
In short, the reader will come out of these two excellent contributions to the scholarship with two important takeaways. First, there is clearly something, a coherent object of study, that both authors set out to examine. Neither of them defines what is a regional human rights system in the first place, and still, there is an implicit agreement on the ontological nature of what is to be researched. Second, rather than disagreeing on the substance of the analysis, the two authors demonstrate that there are different ways to research this object. Importantly, these ways are not incompatible with each other: nothing in Robert’s more case-law-centred approach excludes the loser sociolegal method of Burgorgue-Larsen, and vice versa. They speak to each other easily, but come from different perspectives. This is because they draw from a diversity of scholarship, which until now had not coalesced into a coherent field.
3. A departure from existing literature
There is pertinence is comparing two monographs setting out to explore a similar line of inquiry, especially when published so close to each other. But the focus on The 3 Courts and Alterative Approaches as opposed to other works – some from previous decades, some only a few years old), is justified by how alone in their similarities they are. Not only do they match each other in format (monograph), scope (all three regional human rights systems on equal footing), and methodological openness (doctrinal and sociolegal); they are the only ones with this format, scope and methods. They build on decades of previous works, but move beyond them in a way that is both remarkably similar and unique in the field.
3.1. Holistic comparative studies of regional human rights: A limited field
Contributions with the same general intent of comparing the legal and political history of all three systems are few. In 1987, Weston, Lukes, and Hnatt published ‘Regional Human Rights Regimes: A Comparison and Appraisal’ in the Vanderbilt Journal of Transnational Law.Footnote 34 In 2018, international courts specialists Huneeus and Madsen published ‘Between Universalism and Regional Law and Politics: A Comparative History of the American, European, and African Human Rights Systems’.Footnote 35 They both ask a fascinatingly similar question, almost 30 years apart: what is to be gained from regionalized approaches to human rights, as opposed to the UN-backed global system? To answer, both try to take broad stock of the trajectory of all three systems, individually and comparatively with each other.
Weston, Lukes, and Hnatt engaged in an exercise of institutional comparison between the European, Inter-American, and brand-new African systems, both to set the scene and then analyse their likely effectiveness (based on the procedural rules of accessibility, and admissibility, including the rights covered by the system), but are limited explicitly by the lack of data available for the two most recent systems,Footnote 36 and implicitly by the format of an article.
Almost 30 years later, Huneeus and Madsen carry out ‘the first systematic attempt to compare the institutional histories of the regional human rights systems in Europe, the Americas, and Africa’, as part of a special issue of ICON on ‘Comparing Regional Human Rights Regimes’.Footnote 37 But beyond this descriptive goal, they also had an explanatory agenda to uncover ‘how the regional rights systems’ evolution has been shaped in part by the same geopolitical dynamics, and how, in many ways, they have explicitly and implicitly worked in tandem, linked by common challenges, notably by shared ideas and practices’Footnote 38 and how the systems have influenced each other, and the international human rights order globally. Of the contributions to the special issue, Huneeus and Madsen’s is the most interested in historical evolution and embeddedness in time, making it closely related to the two books here reviewed. The general framework set up by the special issue itself will be of more interest in Section 3 of this essay, as a point of comparison with the new field emerging in Roberts’ and Burgorgue-Larsen’s monographs.
And about four years later, came the two monographs under review. What can we draw from placing them in light of these two previous publications which seemingly shared the same intent? First, there is an evolution in the research agenda, and a more refined awareness of what can be gained by beholding all three systems at once. The goal for Weston is comparison for comparison’s sake, to assess (from a US perspective) what these regimes are in the first place. As the authors stated themselves,
[i]t is not the purpose of this Article to appraise each regional regime’s efficiency in dealing with these grievance procedures processing the applications and in implementing the decisions reached relative to them. Of course, a thorough empirical study along these lines is very much in order.Footnote 39
With Huneeus and Madsen, appraisal not only exists, but is now embedded in time: these are not fixed systems that are being compared, but evolutions, behaviours, and changes. They also start mentioning institutionalism as an influence to appraise these changes over time, allowing for a more complex theorization. But both Roberts and Burgorgue-Larsen mark a departure through their breadth and depth, devoting full monographs to the topic and leveraging an impressive amount (and array) of data. The shift is also theoretical: Roberts refers extensively to Huneeus and Madsen’s article, to argue against their theoretical framework, which suggested that a coherent international human rights agenda had given shape to all three systems. Roberts finds that the systems’ foundational moments and subsequent evolutions were far more diverse than Huneeus and Madsen had argued, displaying ‘greater differentiation and less convergence’ than had been suggested.Footnote 40 And while Burgorgue-Larsen is more committed to finding where the evolution, behaviour, or body of work of each system can be comparable, her book also shines on the idea that each system is thoroughly embedded in its context, rather than relating to more global influences. The shift is methodological (up to and including the sheer decision to dedicate entire monographs to the comparison) and theoretical (considering the systems as stand-alone objects in a context, rather than offshoots of one given impetus).
3.2. Comparative human rights law: Regional protections as case-studies
Of course, there is more to comparative human rights than all-encompassing accounts or theorization of all three regional human rights systems at once. A rich scholarship compares two, sometimes three, systems on one specific issue-area, more in the style of traditional comparative law. For a sample of this literature, we can cite Murray’s research on serious or massive human rights violations (comparing the procedures of all three systems to deal with this specific type of violation, and some of the practicesFootnote 41), Viljoen’s work on compliance and oversight (comparing the inter-American and African systemsFootnote 42), the comparison of the normative instruments of all three systems by Okere,Footnote 43 or of the rules and practice of Amicus Curiae by Mohamed.Footnote 44 But these comparisons can go beyond the actual body of decisions or official procedures of the systems: Steininger in 2022 compared the press release practices of the European and inter-American systems, in the context of loyalty-building and resistance to backlash;Footnote 45 Hawkins and Jacoby empirically explored (partial) compliance by states in the inter-American and European systems, as did Hillebrecht.Footnote 46 So how do The 3 Courts and Alternative Approaches differ?
Both monographs gather insights from this diverse literature into a coherent theoretical framework. This is not only about the format of a monograph giving more space to do so, but rather about finding an explanation for the behaviour of a system holistically, from the rules of access to the struggle of implementation, from the normative instruments to the communication practices: instead of taking these issues as separate, there is a deliberate conceptualization as all of them being intertwined.
Additionally, both authors also make a radical move beyond traditional comparative international law, to make the procedural rules and the body of decisions only a small part of the object under study – in particular for Burgorgue-Larsen. Judicial biographies, cultural context explored empirically and formal and informal ties with branches of governments are a fundamental part of the research project. Moreover, a substantial part of the scholarship mentioned above usually focuses on one system primarily and then uses one or two others as a foil. Often, the main interest lay in the African system, and referring to the other two was a way to try and anticipate how it would evolve, evaluate institutional reforms or analyse its body of work. Roberts and Burgorgue-Larsen’s works (as well as Huneeus and Madsen’s article) do not take one system as being more or less referential than another. Normative conclusions should not be avoided, but by taking all three systems in their own institutional, political, and social context, new insights emerge. Roberts warns that there is no one-size-fits-all, but that the ‘optimal model’ may be the dualist set-up of a Court and a Commission, either strongly or weakly integrated with each other depending on the context.Footnote 47 This approach has a radical advantage: it prevents (or at least limits) the Euro-centrism which has often been pervasive in the study of human rights regimes, where research was often framed as a ‘lesson from’ or a ‘lesson for’, with the Strasbourg system heralded as a model and the Addis Ababa/Arusha system in need of inspiration.
3.3. System-specific scholarship
Methodologically, the richness and diversity of both books, but in particular of The 3 Courts, builds on a third, even larger body of works: research focusing on one single system – either as ‘an example of’, or for the system itself. These are the well-established works of Bates, Duranti, Simson, Madsen, and Dzehtsiarou on the European system;Footnote 48 or Viljoen, Mutua, SSenyonjo, Bekker, and Okafor, on the African system;Footnote 49 and of Quiroga, Huneeus, and Abramovich for the inter-American system.Footnote 50 This is where the range of topics covered by each book is reflected, as an enormous body of work retracing in detail the creation of each system, zooming in on the relationships of each system with their constituency, their ability to withstand pressure, the nomination procedures, the sociological backgrounds of the judges and commissioners, and the exact role of specific cases, high-profile diplomats, domestic supreme courts, or specific NGOs is uncovered. This literature does not seek a comparison of one system with another but instead acknowledges that each individual system has its own context, stakes, constraints, and challenges and that much can be learned by embracing this uniqueness. The tour de force of both Roberts and Burgorgue-Larsen is to take this attention to the micro-level usually reserved for single-case studies, and blend it with a comparative approach, without ever diluting its underlying philosophy.
Comparative but embracing the idiosyncrasy of each system; building on international law scholarship but looking beyond the law; uncompromising between breadth and depth: this is how The 3 Courts and Alternative Approaches set themselves apart from the existing literature, explicitly or implicitly. They bring the foundations of a different field, the boundaries and content of which we can now try to sketch out.
4. Comparative regional human rights systems as a coherent research area
One last notable contribution to help place these two monographs in their academic context is the overall ICON Special Issue to which Huneeus and Madsen’s article was a contribution. The ambition was to ‘identify … and explain … the convergences and divergences of human rights institutionalization in different regions’,Footnote 51 and this was disaggregated in ‘access, interpretation, and remedies’.Footnote 52 A few years later, the works of Burgorgue-Larsen and Roberts, taken as a whole, probably exceed what the three academics had in mind in 2018. There are overlaps between Çalı et al.’s 2018 Research Agenda and the new field described in this essay: regions as the key unit of analysis, the openness to new regimes which could emerge in Asia and the Middle East, the interest in comparatively learning from each system,Footnote 53 and some empirical findings. But as will be seen in this section, there are also notable differences in the framing of the research (with the contributors to the 2018 Special Issue positioning themselves as part of comparative international human rights law,Footnote 54 and anchored in international law), the goals and sometimes the empirical conclusions drawn. The new field re-assesses their vision a few years after the fact, to argue that the scholarship has reached the maturity required (and encouraged) to be a field that stands on its own.
This final section attempts to draw, with broad strokes, what the constitutive characteristics of this new field are. It builds on the critical appraisal of both The 3 Courts and Alternative Approaches, as well as their place in the existing scholarship, to give shape to this field.
4.1. The object: ‘Regional human rights systems’
If there is a new field, it needs a distinct object of study. The object, here, is ‘Regional Human Rights Systems’, which shall be broken down into its components.
‘Regional’ differentiates it from International Human Rights, but also national or sub-national human rights mechanisms. ‘Regional’ implies both the participation of multiple states in the system, and that these states share some form of geographical characteristics, usually a continent or subcontinent. As such, this excludes systems that are international or global, such as UN-based instruments, which are fundamentally subject to different dynamics. This might seem trivial, but political contexts, legal traditions, cultural and religious environments have been demonstrated by Burgorgue-Larsen and Roberts to be key elements to any coherent analysis: more homogenous than at the global level, yet far more diverse than at the national level. What this means is that theoretical explanations, assumptions, and knowledge currently existing for global or (sub)national human rights mechanisms should not be taken as automatically applicable to regional systems. The dynamics at work at this particular meso-level are unique.
‘Human Rights’ defines the focus of the system rationae materiae. All three systems’ normative instruments (Convention, Charter, Protocols…) overlap in part; but they also widely differ in areas such as environmental rights, cultural rights, social rights, or indigenous rights. ‘Human Rights’ should not be taken here in its classic European liberal understanding of rights as civil, political, and property-related only. This aligns to level the field and avoid placing one particular ontology of human rights over another, decentring the scholarship away from Europe and welcoming TWAIL, feminist, queer and indigenous epistemologies.
However, the field is restricted to regimes with human rights as their goal and sole purpose. As such, other supranational regimes and/or international courts that have developed a body of decisions involving human rights fall outside the comparative study of regional human rights systems. The ECOWAS Court, the CJEU, and the Andean Tribunal of Justice (ATJ) all have dabbled more or less extensively (sometimes very extensively) in human rights matters,Footnote 55 but have been created for different goals, with different mandates, and deal with human rights only incidentally. This ultimately justifies their exclusion: the institutional set-up of the European, African and inter-American systems mirror each other, to a degree unmatched by other systems. This commensurability of all three systems is fundamental to the development of new theories and frameworks, as opposed to those which have already been proposed in fields such as the study of international organizations, or international human rights law.
At this point, the European, the inter-American, and the African systems seem therefore the sole objects of study. But the field should not be defined by these three instances only, else it assumes that none other can be adopted in other regions. In the introduction of their 1987 article, Weston et al. mention the Permanent Arab Commission on Human Rights, to which today could be added the Arab Charter on Human Rights adopted in 2004.Footnote 56 Additionally, the ASEAN also now has its own Human Rights Declaration, adopted in 2012. Would they be considered a human rights system? None of the key works covered in this review essay defines what a ‘system’ is, or what are the required components. But in light of both monographs and the scholarship they build on, the presence of a judicial and/or quasi-judicial body in charge of ensuring that states comply with their obligations is required – the adoption of a list of rights is not sufficient. This could be what makes it a ‘system’, rather than simply a ‘regime’. Burgorgue-Larsen mentions in a footnote that while the Courts are the main focus of her analysis, they ‘contribute to the establishment of a true jurisdictional system’.Footnote 57 Roberts, like Huneeus and Madsen, uses ‘system’ without defining or questioning it. The symposium they were part of was titled ‘regional human rights regimes’, and in the research agenda they envision, Cali et al. use ‘regime’ and ‘system’ interchangeably – as had Weston et al. before them, all the way back in 1987.
‘Regime’ has both the advantage and the inconvenience of having a clear definition in international relations scholarship, usually that of Krasner: ‘principles, norms, rules and decision-making procedures around which actor expectations converge in a given issue-area’,Footnote 58 and a rich body of work on ‘regime theory’.Footnote 59 But the definition intuitively seems outdated, and inappropriate for human rights matters, even more so in light of Roberts and Burgorgue-Larsen’s work. Is there a convergence of expectations of all actors involved when so much is about push-and-pull, compromises, strategies, and resilience/backlash dynamics between states, judicial, and quasi-judicial institutions within this regime, different branches of governments which can experience rapid shifts and unrest, and the ever-changing nature of civil society actors and litigants availing of this regime? Is the point of a human rights regime convergence, today? Contributions to the 2018 ICON Special Issue run into the same limitations: by setting out an agenda focused on explaining convergence and divergence, research is limited to a comparative analysis of specific components (remedies, access, interpretation). A return to ‘system’, instead of ‘regime’, frees up the scholarship from pre-existing notions that may not be adapted to regional human rights set-ups, to broaden the perspective. It can be used to distinguish systems (with a normative instrument and at least one quasi-judicial institution tasked with ensuring states comply with this instrument) from the vaguer regimes (such as the ASEAN human rights regime, without its own judicial or quasi-judicial body).
Beyond the vocabulary comes the question of ‘how far’ this newly established object (should) reach, in breadth and depth. If we continue to use The 3 Courts and Alternative Approaches as a starting point, it appears that widening the frame is the way forward. Both cover the behaviour of the Commission, the Court, and the states, and different branches of government and the shifts they can experience. There is also an important focus on National Human Rights Institutions (NHRI), litigants and lawyers, and civil society organizations – with Burgorgue-Larsen covering both liberal and conservative forces. Surprisingly absent from either monograph are the actors ‘above’: none covers the impact that the global UN system can have on the three regional systems, the institutional, formal and informal links which may exist. That is not to negate the singular identity of the regional systems compared to the UN Treaty Body, but if context is everything, then surely this context includes both a look downward and a look upward.
4.2. The methodology: Transcending disciplines beyond ‘comparative law’
Another distinctive element of this new field of research is its openness to research methods from multiple disciplines. Looking at the differences in methodological tools between Roberts and Burgorgue-Larsen, one is struck by the diversity of approaches. Their starting point is ‘the comparative method’, which finds some commonality in law (where it refers to an entire field of comparative (international) law) and social sciences (where it is meant to yield different types of insights depending on case selection strategy). The new field to emerge is, in a sense, inherently comparative, by virtue of having only three systems to study today.Footnote 60 Additionally, by leaning on both legs of the ‘comparative’ approach (legal and socio-legal) we can rely on a broader range of methods drawn from each field, which can be used either when actively engaging in comparison, or focusing on single case studies on single system. A few of these methods (some of them employed by Roberts and Burgorgue-Larsen, and others not) are introduced here, from their most quintessentially legal to the ones most heavily drawing from social sciences.
Both authors first make use of traditional doctrinal analysis at various points, Roberts more heavily than Burgorgue-Larsen. Roberts uses a legal exegesis of the key decisions of the Inter-American Commission on transitional justice,Footnote 61 or the African Commission’s appreciation of admissibility.Footnote 62 Burgorgue-Larsen throughout her section on ‘decompartmentalization’ analyses decisions (mostly, of the Courts of each system), looking into how this method was used within each system to improve the standards of protection set in their case law, for example by combining different rights, extending the scope of protection or adopting new concepts. But the doctrinal method should be embraced with an additional challenge: it should carry on with the decentralizing analysis away from European legal traditions, to mirror the move away from the European system as the de facto model. Burgorgue-Larsen touches on this when exploring neo-constitutionalist approaches in Latin AmericaFootnote 63 and African constitutionalism,Footnote 64 and how it lead to different types of synergies between national constitutions and the relevant regional human rights system.
A second set of methods is more embedded in empirical approaches, drawn from fields such as sociology, political science, ethnography, history, and social sciences at large. They are already commonly used in the vast field of sociolegal studies, and include both positivist and more interpretivist approaches – although both Roberts and Burgorgue-Larsen adopt a positivist standpoint. Roberts, for example, builds on historical institutionalism and historical sociology, which is not only a theoretical framework but also a methodological one which shapes the inquiry: the focus on evolution through time, the identification of critical junctures or ‘political opportunities’,Footnote 65 the positive feedback loop creating path dependence.Footnote 66 Even Burgorgue-Larsen, with her focus on institutions and behaviours reciprocally shaping each other, can be said to build on this approach. Both stress the importance of the initial impetus behind the creation of a regional human rights system, and how it can both be counter-intuitive when looking at it decades later, and shape the trajectory of the system. It is easy here to see how archival research would also fit within the field. Zooming in on other methods that both authors borrow from without fully exploiting, we can also foresee the contributions that thorough legal biographies of key judges and commissioners, or sociological analysis of the (evolving) profile of commissioners, judges, members of the registrar, etc… who have shaped the systems. Ethnographic work either within the institutions, related government branches or even civil society organizations interacting with the systems would similarly be an enlightening addition to the field.
A third set of approaches (rather than methods per se) are more normative, philosophical, and critical takes on regional human rights systems. Once again to ensure that the field takes the three systems and stand-alone, valuable entities of their own rather than copycats of the European model, TWAIL scholarship, feminist theories, CRT or Marxist critique must have a place of choice. They are incredibly relevant to continue pushing for higher standards, especially regarding environmental rights, cultural rights, indigenous rights, or women’s rights for example. They also offer a place of discussion to avoid falling into principled relativism or pushback against human rights in general. These approaches help develop theories of human rights, but also procedures and institutions, which can be tailored to the socio-cultural context of their constituency, and truly reflect the expectations of individuals and groups meant to benefit from them.
4.3. Questions and goals: What are we here for
Remains the centrepiece: what are the questions meant to be explored and answered in this field? This is without a doubt where the new research agenda differs from that set in the 2018 ICON Special Issue, with its comparative focus on convergence and divergence between the systems, on three specific aspects (interpretation, access, remedies). With its renewed methods and object, potential research questions overlap Çalı et al.’s proposal, but also radically broaden the field of inquiry.
The idea is less to uncover brand new, never-asked-before questions (although some topics, as will be seen, cover recent phenomena). Instead, the goal is to revisit some questions familiar to scholars of either human rights law or international courts, providing new explanations tailored to the idiosyncrasies of regional human rights systems. Far be it from this essay to exhaustively list all potential areas of research, but surely key ones will have to include the negotiation, adoption, and entry into force of initial and new legal instruments and procedures; factors impacting decision-making processes and behaviours; impact of new or different rules on admissibility and procedure (here overlapping, but going beyond Hampson et al.’s 2018 contribution on access to ‘regional human rights courts and commissions’ for exampleFootnote 67); embeddedness within the national and substantial terrain; resilience strategies; human rights standards and jurisprudence; enforcement, implementation and application; judicial and extrajudicial communication; resilience, resistance, and backlash. The questions are not new – but the answers are likely to be: the objects of study have no equivalent in international law or international relations, and interdisciplinary methods are likely to yield novel insights.
Some questions, however, are new: the first being the multifaceted and complex relationships between the quasi-judicial organ (usually the Commission) and the judicial organ (usually the Court) of a given system. Regional human rights systems can fascinatingly oscillate between politicization and judicialization based on the rules and praxis of both organs vis-à-vis each other. Despite nominally having only three systems, their different institutional set-up in this aspect, as well as the evolution of said rules and practice for each of them, now provide us with much material to try to understand not only the behaviour of each organ but of the system as a whole, on all questions listed above. The push and pull between the Inter-American Commission and its Court; the weakening and politicization of the African Commission in recent years as the Court tries to find its authority; and the impact that the removal of the Commission had on all aspects of the European system – these are as many elements that the study of comparative regional human rights systems can explore to further the protection of human rights on the ground.
Second is a topic that was surprisingly absent from both Roberts’ and Burgorgue-Larsen’s works, despite having been touched on by other scholars: the interactions of the systems with other regional and international institutions, but particularly with each other. The important role that the UN system in particular could play has already been mentioned – but surprisingly little is said by either author on the interactions between the regional systems themselves. Yet, in the last few years, their Courts in particular dedicated themselves to appearing united. In 2018, all three courts adopted the San Jose I Declaration,Footnote 68 in 2019 the Kampala DeclarationFootnote 69 and in 2023 San José II Declaration.Footnote 70 They have institutionalized a Yearly Human Rights Forum, published joint law reports, joint publications and joint press releases, coining themselves ‘sister courts’.Footnote 71 Regional human right systems (out of necessity, convenience, strategy or kinship) engage with each other in a dialogue that is very distinct from the one between the CJEU and the ECtHR, for example. This further confirms their coherence as the object of study, and the exclusion of other international courts with broader mandates or different institutional set-ups. Additionally, the sufficient commensurability of these systems will make it possible to comparatively explore how they engage with other sources of international (human rights) law and other international organizations and courts, without including these other institutions as an object of study per se. The impact that these two types of dialogues can have within each system has so far been limited to looking into external references to each other’s case law. But through the lens of comparative regional human rights regimes, this represents an interesting move likely to affect the intra- and outer-system balances and behaviours. Both the motivations and the consequences of this positioning (potentially different in each system!) require scholarly attention.
5. Conclusion: The added value of a new field
Calls to a ‘new field’, announcements of a ‘new key concept’, and presentations of a ‘new research agenda’ in academia can be met with suspicion. Why reinvent the wheel? In the end, it comes down to the question of the added value: is it necessary to conceptualize a whole new field, or is it enough to simply continue building on the existing scholarship?
Neither Burgorgue-Larsen nor Roberts claim to pioneer a new field – and yet, arguably, they are setting the foundation of something that currently does not exist in the literature. Both books would find a place of choice in any module on international human rights law, human rights in the twenty-first century or comparative international law. Specific chapters would be at home in a reading list on transitional justice, resistance, and backlash against human rights, theories of human rights or judicial decision-making, or civil society and international human rights. Both speak across disciplines and will be home in law schools, social science colleges, and international relations departments. And yet, they would probably end up speaking to each other more than to other readings on these lists.
For researchers interested specifically in regional human rights systems, both monographs present unequivocal added value. They have identified an object of study that does not have an equivalent. We can try to extend existing theories on courts or regimes to them, or approach them from well-established disciplines, but there is a sense this is partially denying that they are idiosyncratic constructions, on the international (regional?) stage. Like international courts before them, regional human rights systems require a breakdown of disciplinary boundaries, to take them as they are rather than making them fit into pre-existing approaches or models. Neither fully political nor fully judicial, half decision-makers and half investigators, so close yet sometimes so far from individuals, there is an enormous amount of knowledge to be produced and gained if they are taken holistically. There is also here an unmissable opportunity to feature non-European-centric scholarship, to give a place of choice to the rich body of works that many scholars, especially from the Global South, have produced over the years on the African and Latin American systems. If the courts of all three systems are willing to position themselves as ‘sister courts’ in the face of regional and international permacrisis and backlash, we can also try to establish a field that is truly collaborative and goes beyond well-entrenched boundaries and borders. And if this is overly optimistic – or overly ambitious – perhaps it is simply a testament to the excellent and stimulating read that both books proved to be, individually but especially together.
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