Is Equal Access a Right?

By Abramovich, Víctor | Americas Quarterly, Summer 2009 | Go to article overview

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. …

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