We are extremely grateful to Professor Lucas Lixinski for organizing this Symposium on our Commentary of the American Convention on Human Rights (ACHR), (OUP, 2022). We are also deeply humbled and honored that such authoritative voices in the field, as Maria de Almeida Rosa, Lucas Carlos Lima, Bruna Nowak and Lucas Lixinski himself, engaged with us and provided constructive and innovative perspective on our writings.
Before addressing some – not all, due to the word limit constraint – of the main points of their reviews, we would like to offer a more personal explanation on the roots of the book. As rightly highlighted by Lima, other commentaries of the ACHR have been published in different languages since its entry into force in 1978. The scholarship on the Inter-American System Human Rights System (IASHR) is rich, vibrant, creative, pluralist and sometimes disruptive. It requests public international lawyers fed by a certain conception of public international law (such as ourselves as authors of the Commentary) to think differently. This is precisely the first reason of this book: our desire to engage with this intellectual community. The idea of this book emerged a long time ago and from the reading of emblematic judgments of the Inter-American Court such as Villagran Morales v. Guatemala and then, Blake v. Guatemala. These two cases dealing with grave violations of human dignity raised many important questions and allowed us to discover one of the most intelligent and truly committed academics and judges, the late Antônio Cançado Trindade. His concurring opinion on Villagran Morales on vulnerability, the humanization of international law, the need to protect the weakest people (as children in the street), and how in its adjudication function the Court could make a certain difference, is a treasure. As lawyers, we have been deeply influenced by Cançado Trindade’s legacy and this legacy shapes also the methodology followed in our Commentary and the way we perceive the IASHR as a whole.
There is another factor that fueled our research: the assumption, rarely challenged, that the European Convention of Human Rights (ECHR) would be the best human rights system. When we explain to a non-American international lawyer audience the need to take seriously the IASHR, its “exotic” (sic) character is in general put forward to justify the lack of interest, and the focus on the ECHR and its Court, that would be more “serious” and rigorous. Leaving aside the discriminatory dimension of this recurrent comment, it also reveals the ignorance of the legal theory and philosophy at the basis of the IASHR, much more elaborated and articulated in our views than in the ECHR or even the UN treaty bodies mechanisms. Wanting to highlight the centrality of the IASHR explains – as highlighted by Lima -, the choice of a comparative methodology when relevant, in the Commentary.
The final element that attracted us to the IASHR is its truly universal feature that already transpired in Villagran Morales. When the Court addressed the situation of street children in Guatemala, it is not only a specific and situated matter that is captured but the essence of vulnerability of children living in the streets of any other country in any other continent. The IASHR as a laboratory for a universal human rights system is probably what strikes us most. We both are Independent Experts for universal human rights mechanisms (Human Rights Committee and Committee on Economic, Social and Cultural Rights) and yet, as academics, we are deeply convinced that from a normative and substantive standpoint, the genuine universal discourse on human rights stands in the decisions of the Inter-American organs. We do not say so to be provocative but because each of the judgements of the Court addressing a specific situation partly reveals the human condition, its precarity and its “most adverse condition” as worded by Judge Cançado Trindade in his Opinion on Villagran Morales, that is “universalizable”. The IASHR in general and the Court in particular are “victims-centric” and this posture fits with our own conception of International Human Rights Law.
In this sense, we concur with what one of our reviewers, Almeida Rosa, stressed regarding the immense contribution of the Inter-American organs to a gender-based approach to human rights in general and to specific questions as a life free from violence, access to justice or reparation. Compared to the ECHR, the IAHRS is far more elaborated and thorough on the need to fight against structural and intersected discrimination against girls, adolescents, and women. However, as Almeida Rosa indicated, the sub-representation of women in the Inter-American mechanisms is one of the important challenges of the continent. When we wrote the Commentary, Elizabeth Odio Benito was the only woman on the bench of the Court. The “gender turn” of both the Inter-American Commission and Court in 2021-2022 is slowly changing the picture but as we explain in the Commentary, the history of the composition of the two organs is deeply unbalanced from a gender perspective. This composition fact raises fascinating questions on the relationship between gender-based and feminist jurisprudence and gender representation.
Against this background, we would like to address some important points among those raised by the reviewers.
The first one deals with the structure of the book mentioned by Lixinski who regrets that some cross topics as conventionality control or pro persona interpretation were not treated in specific chapters. We struggled with this question. Many structural topics would have deserved a specific analysis as the rights of indigenous communities, the gender dimension of the jurisprudence above-mentioned, the concept of vulnerabilities and so on. However, it would have been another book – and not a commentary article-by-article following the structure of the treaty – and as stressed by Lixinski, some of these books have already been written, including one by the two of us in French (here).
The second remark common to Lima and Lixinski concerns our own doctrinal position. Nowak read the book under a different perspective and therefore, does not fully share the same approach.
Lima points out that when dealing with some rights that raise “dilemma” to the Commission or the Court, as economic, social, cultural, and environmental rights (Article 26 of the ACHR), we explain the jurisprudence of the organs but do not provide guidance of what could or should be the future of this jurisprudence. Lixinski formulates the same idea but slightly differently. He lauds the analysis of the past and present of the IASHR but the absence of more prospective reflections. For Nowak – we will go back later to the substance of their review -, the book on the contrary provides a perspective of the work that can be done in the future.
We will focus on Lima and Lixinski’s point. We take their view and do not challenge it. However, the exegetical method imposed by such a commentary explains this approach, which also corresponds with our normative project. Our aim is not only to assess and analyze the rationale behind the Inter-American organs’ human rights philosophy and practice but also to explain the dynamic à l’oeuvre. Therefore, the purpose is to analyze the system as it is and not as it should be, or again it would be another book. And indeed, we adopt a more prescriptive position when we analyze and compare the international jurisprudence in our new book The New Rhetoric of International Human Rights Law (forthcoming, CUP, 2023) but it was certainly not the purpose of the Commentary to speculate on what should be the inter-American jurisprudence of tomorrow.
Finally on this point, we must confess that what Lima sees as a certain shyness is explained by the very same ground of the project. We started the project having in mind that the assumption of the ECHR as the “best system” was unfounded, compared to the pro persona philosophy of the IAHRS. And one of the main difficulties we had when we wrote the Commentary was precisely to acquire a critical distance with the IASHR. We were helped by a series of online conferences we organized with stellar scholars and practitioners, experts of the Inter-American system as Lucas Carlos Lima himself, Jorge Contesse, Ignacio de Casas, Silvia Serrano Gùzman, Salvador Herencia Carrasco among others. It was extremely enlightening for us to hear and benefit from their critical views and as stressed by Nowak, it will be important for future work “to make the system live up to its promises”.
The final significant comment we would like to briefly address is also by Nowak. We particularly appreciate that the review is focused on reparations and remedies, insofar as this is one of the most important achievements and “emblematic features” of the IAHRS as she rightly points out. Nowak provides important inputs on how some of the recent judgements of the Court against Brazil are implemented in the field. She also rightly highlighted that the pecuniary measures (compensation) of reparation are not the most important form of reparation. Instead, non-pecuniary measures and especially guarantees of non-repetition, as described in our Chapter on Article 63-1 of the ACHR, are probably the main contribution of the Inter-American system to the law of reparation in case of violations of human rights, included when victims with specific needs as children or persons in situation of poverty are involved. As beautifully worded by Judge Cançado Trindade in the above-mentioned concurring opinion,
“[…] the reparations granted mean that, in the concrete case, the human conscience has prevailed over the impulse of destruction. In this sense, the reparations, although not full, are endowed with an unquestionable importance in the work of safeguard of the rights inherent to the human being.” (para. 43)
This importance to reparations is exactly what inspired our symbiotic writing and we second Nowak when she calls for a better comprehensive implementation of the Court’s judgements and the ACHR. The latter is a formidable instrument of struggle for an effective access to justice and rights for victims and the Commentary is an attempt to echo what makes the Inter-American Human Rights System so unique.