DECIDING TO MAKE A DIFFERENCE: Why the Challenges Facing Today's Regional Human Rights Tribunals Call for a New Model of Supranational Litigation
This article addresses the consequences of the radical transformation over the past two decades of regional human rights courts and the political landscapes over which they exercise jurisdiction. Since 1990, the number of states subject to regional rights courts has doubled and is likely to grow significantly in the next decade. The majority of states now subject to the jurisdiction of these bodies are quite different from the Western European democracies that dominated the field and scholarship about the role of supranational human rights litigation until recently. The authors contend that these changes in membership require rethinking of the basic model by which supranational courts affect human rights practices. Further, they argue that these bodies must adapt their procedures to this new context if they are to remain relevant and effective in the twenty-first century. Considering briefly the European human rights system, but focusing primarily and drawing upon numerous case studies from the Inter-American system, the article examines the circumstances under which the actions of supranational rights bodies have led to measurable advances and retreats in human rights, in specific cases and in broader patterns of abuse. Based on these conclusions, the article sets forth and applies a theory of the role of supranational courts in social change in countries in which respect for human rights and the rule of law are not firmly entrenched, countries that now constitute a majority of states subject to the jurisdiction of the European and Inter-American Court of Human Rights. Finally, the article posits several hypotheses concerning the type of procedures and decisions courts ought to adopt to be most effective in the countries and regions in which they seek to have an impact today. The article concludes by recommending that the Inter-American Court consider taking measures aimed at: 1) intensifying its fact-finding, with particular consideration to the role of public hearings and witness testimony, to provide a forum to amplify visibility of the cases litigated; 2) issuing jurisprudence that demonstrates appreciation of domestic conditions, thus maximizing relevance and minimizing the risk of backlash; and 3) not accepting blindly state recognitions of responsibility (when these come late in the litigation and are intended to deflect attention or curtail fact-finding rather than to demonstrate a good faith commitment to comply with supranational decisions).