Is Equal Access a Right?
Abramovich, Víctor, Americas Quarterly
The next frontier for the Inter-American System will be social rights. Is the system and Commission ready?
As politics have changed in the Americas, so has the role of the Inter-American system. Many of the challenges facing democracy and human rights today stem from patterns of inequality and unequal access. The growing number of such cases before the Inter-American Commission on Human Rights (Commission) and the Inter-American Court of Human Rights (Court) has helped to blaze a new trail of jurisprudence for the hemisphere.
Latin America's political landscape is far more complex than it was when the system was established 50 years ago. At that time, the biggest challenge was confronting the massive, systematic human rights violations occurring in authoritarian states, or as part of internal conflicts. During the post-dictatorial transitions in the 1980s and the early 1990s, the system expanded its mandate, outlining core principles regarding the right to justice, truth and reparations. It set the limits for amnesty laws and established the foundation for the strict protection of freedom of speech. It invalidated military courts and protected habeas corpus, procedural guarantees and the democratic political system, among other measures.
The challenge now is to consolidate democracy in the region. While many countries have taken important steps, such as strengthening electoral systems, protecting freedom of the press, and abandoning political violence, the growing political and economic marginalization of vast sectors of the population has imposed structural limitations on the exercise of social, political and civil rights.
This is a particularly important area that needs to be addressed by the contemporary Inter-American system, since existing international mechanisms have been-at best-subsidiary. Ultimately, only the state can provide the necessary guarantees.
Evolving jurisprudence in the Inter-American system has begun to respond by targeting structural conditions at the national level, such as the quality of judicial systems. But its influence extends to more than just the interpretation of the law in local courts. It can (and has) also influenced the development, implementation, evaluation and administration of public policies. Thus, individual case decisions often serve as a form of pressure on states to enact broader policies that target structural problems at the root of cases brought before the Court or the Commission. In the case of Claudio Reyes vs. Chile in 2006, for example, the Court endorsed a law concerning access to public information and created agencies to ensure its application. The Commission's report on the 2001 case of Maria da Penha Maia Fernandes vs. Brazil served to establish a federal law on domestic violence. Various decisions of both the Commission and the Court concerning the competence of the military judicial system led to changes in legislation in Peru and Colombia.
In addition, the legal framework of individual cases allows the Inter-American system and the Commission, in particular, to promote friendly negotiations between petitioners and states. In these cases, the state often agrees to implement institutional reforms or create mechanisms suggested through negotiation and consultation with civil society. There are also cases where states have agreed to change their laws as a result of amicable solution processes. For example, the repeal of Argentina's desacato law, which criminalized criticism of public officials, and the creation of procedures to implement quotas guaranteeing the participation of women in electoral processes. In the case of Horacio Verbitsky vs. Argentina, for example, the state repealed the desacato law in 1994 as a result of a direct agreement they made with journalist Horacio Verbitsky, the petitioner. Verbitsky had been penalized for criticizing a minister of the Supreme Court of Argentina. Similarly, an agreement reached in the case of María Teresa Morini vs. Argentina resulted in Argentina implementing a quota system in which three of the top five candidates of each party list would be women.
Extending the Agenda: Exclusion and Institutional Degradation
The evolution of the role played by the Inter-American system has been accompanied by an expansion of its agenda. Over the course of its history, the system has served as an echo chamber for problems of the democracies in the region. The cases and issues brought before the system by civil society reflect existing conflicts in the region's countries.
The Inter-American system's emerging agenda on social exclusion draws from different collective conflicts. These include limits on the social and political participation of women, discrimination against Afro-Latin Americans and indigenous communities that restricts their access to government services, as well as abuse at the hands of police forces and prison authorities. Collectively, these conficts affect lowincome or poor populations who do not have equal access to the protections guaranteed by the law.
But more than reflecting unjust economic and social systems, the emerging body of social-rightsbased jurisprudence in the Inter-American system is directly tied to the shortcomings of administrative, political and judicial institutions. Addressing these conflicts requires a fresh and nuanced approach.
What follows is a quick overview of some of the key cases that have formed the core of evolving jurisprudence related to the new contemporary challenges of the hemisphere.
All have set important precedents, and together they represent a bold approach to defining the state's obligations to disadvantaged sectors of the population, whose rights have been curtailed by deep-rooted social inequalities. They have established a set of so-called "positive rights" that must be protected pro-actively by the state, in contrast to "negative rights" that are typically ensured through restraints on state behavior or limits on its activity. This represents a historic evolution from a concept of formal equality toward a concept of substantive equality.
The classic notion of equality in the Inter-American system is non-discrimination. It aims to eliminate unjustified or arbitrarily established privileges or differences. Current jurisprudence has sought to generate equal rules for all, and to establish the principle of neutrality or "blindness" on the part of justice systems toward socioeconomic or gender differences.
This notion was affirmed in the 2001 case of María Eugenia Morales de Sierra vs. Guatemala through a report issued by the Commission. In that case, the Commission required the Guatemalan government to reform its civil code, which granted husbands the exclusive administration of the assets of both parties and imposed restrictions on married women's freedom to work outside the home.1 The Commission established that certain forms of difference or distinction in terms of treatment are strongly suspect of illegality and the state must offer very strong reasons for their justification. As long as the difference is due to some of the suspect factors or categories, race, sex or national origin, the norm or policy implementing it shall be observed under a strict criterion. Guatemala proceeded to gradually reform the norms challenged by the Commission.
But this classic notion of equality does not take into account the subordination of certain social sectors, a reality that demands not identical rules but, rather, a differential treatment that levels the playing field across the board. This complex question has prompted the Inter-American system, in the last few years, to move gradually toward the notion of substantial equality, which requires the state to play an active role in removing inequities or establishing special protection for vulnerable groups that have suffered historical or structural discrimination. As noted earlier, this amounts to the establishment of a positive right, under which governments are expected to do all in their power to guarantee equal conditions and investigate and remedy systematic inequities
A 2007 Commission report titled Access to Justice for Women Victims of Violence in the Americas established the systemic basis for these sorts of equality- oriented measures under the Inter-American system.
The 2001 case of Maria da Penha Maia Fernandes vs. Brazil exemplifies this type of decision. In this case, the victim had been attacked several times by her husband without any reaction from the authorities from which she had sought help. What is interesting about the case is that the civil society organizations submitting it to the Court asked that the particular situation be judged according to the social and institutional context in which the events had occurred.
Presenting the case from this angle forced the Court not only to observe the individual victim but also to see her as part of a larger population structurally affected by certain government practices. Rather than an isolated and exceptional episode of violence, it was presented as a structural pattern. The argument in effect was that violence-prevention measures and policies had been ineffective. Moreover, once the violence had occurred, the judicial mechanisms to remedy the victim and to investigate the crimes failed.
The Court established that in these types of patterns, states have the obligation to take diligent preventive action, even when the violence is committed by private individuals. Thus, even though the husband's actions gave rise to the abuse, the state was held responsible for failing to adopt preventive measures that, with due diligence, could have prevented such violence, or-once the violence occurred-failed to provide victims with adequate judicial remedies.
The Inter-American system's adoption of the notion of structural equality should help judicial interpretations and affect the debate and discourse concerning the concept of equality. One of the ways it will help is that affirmative action measures adopted by the state cannot be invalidated under a formal notion of equality. Another is that states not only have the obligation to refrain from discriminatory practices but also, when faced with certain situations of structural inequality, are obliged to adopt affirmative or positive balancing actions to ensure the exercise of rights by certain groups. A third interpretation holds that while certain practices or policies may appear neutral or nondiscriminatory, they can have unintended discriminatory consequences for certain disadvantaged groups, and therefore violate the principle of equality.
This last interpretation was fundamental to the 2005 ruling in the case of Yean and Bosico vs. the Dominican Republic. In this case, the Court examined the requirements demanded by the public administration of the Dominican Republic to register and grant identification documents to children whose parents had immigration irregularities. According to the Court, certain requirements that were seemingly general in scope were actually designed to hinder registration and access to nationality for children of Haitian origin. This ruling effectively applied the equality principle to a specific social context, namely the conditions under which Haitians were treated in the Dominican Republic. In doing so, the decision found-and established a precedent for determining- that certain state actions can unfairly affect not just an individual but also a specific group or social sector. The decision opened the door for affected groups and the courts to assess the potential impact of government policies and practices on social groups, beyond individuals.
This concept of equality is also reflected in the way the Inter-American system has started to reevaluate state obligations in the areas of civil and political rights.
Many cases illustrate this reevaluation, particularly in matters related to collective property rights in indigenous lands. Recently, the principle of equality relating to marginalized groups forced a reinterpretation by the Court of the obligation of the state regarding the right to life. In the 2009 ruling of the case of the Sawhoyamaxa indigenous people vs. Paraguay, the Court extended the right to life to include the state's obligation to guarantee access to minimal resources (food and health care) for their subsistence.
The Inter-American system has also set positive obligations regarding indigenous peoples right to participate in the political system. This has extended, for example, to their right to be consulted regarding polices that could affect their traditional territories. Under the precedent set by Court rulings, the proposed use of natural resources on aboriginal lands obliges the state to consult with indigenous groups or their political representatives. In rulings on these cases, the Inter-American system has argued that such measures are essential to guaranteeing their political inclusion.
The rulings established a direct link between the exercise of cultural and social rights and their civil and political rights. Such rights are set forth in international treaties and instruments, such as the International Labor Organization's Convention 169, and have also been recognized in the Inter-American Convention on Human Rights. In a series of recent decisions, the Court has established the obligation of states to establish proper mechanisms for indigenous peoples participation and consultation in decisions that could affect the use of their natural resources or alter their ancestral territories in any way.2
In the 2005 case of Yatama vs. Nicaragua3 the Court determined that Nicaraguan legislation and decisions made by the state's electoral bodies had limited the possibility of political participation of a political organization representing indigenous communities living on the country's Atlantic coast. In its ruling, the Court cited the right to political participation set forth in Article 23 of the Inter-American Convention and interpreted the Article as extending beyond the right to participation in formal electoral processes to cover participation in other public policy discussions and mechanisms of control or oversight over the government. The Court maintained that the Nicaraguan electoral system should be modified to allow indigenous groups and communities electoral participation. This would require the state to recognize organizational systems based on cultural norms within the indigenous communities.
To guarantee the effective political participation and sufficient representation of indigenous groups in the Nicaraguan Congress, this recognition was essential. This ruling imposed a "positive obligation" on the state of Nicaragua, based on the characteristics of the affected group by obligating the state to remove cultural obstacles that prevent or limit the political participation of a group traditionally suffering discrimination.
The Inter-American system has also set strong positive obligations regarding the right to access to justice. This has included, in a series of cases, establishing precise standards regarding the right of plaintiffs to legal and other appropriate, effective judicial assistance in order to file claims for violation of fundamental rights.4 In one of these cases, Velázquez Rodríguez vs Honduras, in 1988, the court concluded that according to the generally recognized principles of international law, judicial recourses have to be effective and adequate.
These landmark decisions impose upon states in the hemisphere an obligation to remove social or economic barriers that limit access to their national justice system. Just as significantly, they oblige states to establish free public legal assistance as well as other mechanisms aimed at alleviating the expenses of accessing the justice system for the poorest and most marginal sectors of the population.
Economic inequality, according to the Court, affects the efficient defense of the interest of the poor and marginalized and, for that reason, requires state judiciaries to take into account a government's social policies, including its provision of legal services. The system has set the existence of a government obligation to establish these services as a positive policy to compensate real situations of inequality and to guarantee equality of tools and options in a judicial process, but it has not defined the nature and characteristics in detail.
This base of positive obligations, linked to the reality of inequality in the Americas, can serve as a framework to examine public policy and define an obligation for states. It requires them to act in favor of protecting subordinate groups or collectives, restore balance and, sometimes, to take sides. In doing so, it goes beyond the traditional notion of passive rights.
In this new scenario, the challenge of the Inter-American system is to intervene in a more effective way in conflicts stemming from social exclusion and inequality. These conflicts are indicative of the looming human rights agenda in years to come in the region's young democracies.
Individual case decisions oft en serve as a form of pressure on states to enact broader policies that target structural problems.
IACHR 50 YEARS
CASES THAT MADE A DIFFERENCE
A counterinsurgency group known as "La Colina," working with military intelligence, killed 15 and wounded four individuals at a house party in Barrios Altos, a neighborhood in Lima, Peru. The victims were mistakenly thought to be involved with the Shining Path. An in-depth investigation into the case was impossible due to a then-existing amnesty law, which granted amnesty to members of the security forces and civilians who were the subject of a complaint, investigation, indictment, trial or conviction, or who were serving prison sentences for human rights violations committed after May 1980. The law was repealed in 2000 and the case was reopened. The landmark case shed light on the human rights violations committed under the administration of President Alberto Fujimori.
The proposed use of natural resources on aboriginal lands obliges the state to consult with indigenous groups or their political representatives.
Landmark decisions oblige states to estabish free public legal assistance as well as other mechanisms aimed at alleviating expenses of accessing the justice system.
1 Report 4/01, Case 11.625, María Eugenia Morales de Sierra vs. Guatemala (January 19, 2001). 2 Inter-American Human Rights Court, Comunidad Mayagna (Sumo) Awas Tingni vs. Nicaragua (August 31, 2001), Comunidad Yakye Axa vs. Paraguay (June 17, 2005), and Saramaka Clans v. Suriname (June 23, 2006). 3 Yatama vs. Nicaragua (June 23, 2005). See also the concurring vote of Judge Diego García Sayan. 4 The jurisprudence regarding effective judicial recourse is clear in the Inter-American System of Human Rights protection in Genie Lacayo vs Perú (1995) and in Velázquez Rodríguez vs. Honduras (July 29, 1988).
Víctor Abramovich is the second vice president of the Inter-American Commission on Human Rights. He was previously Commissioner and the Special Rapporteur on the Rights of Women for the Commission.…
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Publication information: Article title: Is Equal Access a Right?. Contributors: Abramovich, Víctor - Author. Magazine title: Americas Quarterly. Volume: 3. Issue: 3 Publication date: Summer 2009. Page number: 83+. © Americas Society Council of the Americas Spring 2007. Provided by ProQuest LLC. All Rights Reserved.
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