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Settle or litigate? Consequences of institutional design in the Inter-American system of human rights protection

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Abstract

Why do states engage in settlements with victims of human rights violations? Although the friendly settlement procedure has been on the books at the Inter-American Commission on Human Rights since 1992, states did not begin utilizing the procedure in earnest until nearly ten years later – why? I argue that state behavior – the choice to settle or litigate – at the Inter-American Commission is driven in part by two features of the institution’s design: (1) optional jurisdiction of the Inter-American Court and (2) a 2001 rule change that reduced the level of discretion over submission of cases to the court. Using an original dataset of petitions at the Inter-American Commission, I show that states engaged in more settlements in response to the increased cost of litigation, but that these changes are limited to states under the Inter-American Court’s jurisdiction. Moreover, as a positive, perhaps unintended, consequence, states’ levels of compliance with the Commission’s non-binding recommendations also increased after the rule change. My findings indicate that it is possible for institutions to achieve more desirable or efficient outcomes by changing the rules of the game.

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Fig. 1

Note: The three possible outcomes of petitions are indicated by rectangles

Fig. 2
Fig. 3

Note: Only petitions from states under the Court’s jurisdiction are included in these calculations

Fig. 4

Note: Only petitions from the 2001–2018 period are included. States that had fewer than five petitions are excluded for legibility

Fig. 5

Note: Articles include physical integrity rights (Article 4: right to life; Article 5: right to humane treatment; Article 7: right to personal liberty); civil and political rights (Article 3: right to juridical personality; Article 8: right to a fair trial; Article 13: freedom of thought and expression; Article 25: right to judicial protection) and rights for a protected class (Article 19: rights of the child). Petitions can fall into more than one category if more than one article is violated

Fig. 6

Note: Only states that engaged in at least two settlements in both periods are included. The number in parentheses is the average number of remedies in friendly settlements for that state between 1992 and 2000

Fig. 7

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Notes

  1. See Shelton (2015) for more information about the non-adjudicative activities of the Inter-American Commission.

  2. See Abbott and Snidal (2000) for a further discussion of the dimensions of hard and soft law.

  3. Dominica, Grenada, and Jamaica are examples of states that have ratified the American Convention, but remain outside of the Court’s jurisdiction. As such, they have undertaken the higher obligation, but not higher delegation. Venezuela denounced the American Convention in 2012 and left the Court’s jurisdiction in 2013, but rejoined the American Convention in July 2019.

  4. Admissibility criteria are set forth in Articles 26-36 of the Rules of Procedure of the Inter-American Commission on Human Rights, revised 2013.

  5. I do not consider compliance agreements, which are sometimes signed by the state and petitioner after the Commission issues a merits report, to be the same as settlements as they seek to clarify only the nature of the remedies, and come after the determination of state responsibility.

  6. Prior to 1992, the Inter-American Court interpreted Article 49 of the American Convention, which provides for friendly settlements, to mean that the Commission may provide for a friendly settlement proceeding, but is not legally required to Standaert (1999). This made sense when the institutions were young and states rarely responded to the Commission’s request for information. In 1992, the Commission’s new regulations provided that the Commission shall make itself available for friendly settlement proceedings. See Regulations of the Inter-American Commission on Human Rights, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 103 (1992).

  7. This is not explicitly stated in the American Convention, but cases can only be referred to the Court if procedures in Articles 48 and 50 have been fulfilled; Article 50 assumes that a settlement has not been reached.

  8. There is one exception, which is that if the Court rejects the case on jurisdictional grounds, the Commission resumes its responsibilities, as happened in Alfonso Martín del Campo Dodd v. Mexico.

  9. If the decision goes in favor of the state, it tends to be because the Court accepted one or more of the state’s preliminary objections, which preclude jurisdiction.

  10. Many have criticized this lack of transparency; see Fiss (1984)’s strongly titled “Against Settlement” and the equally clear directive of Hafner-Burton et al. (2017)’s “Against Secrecy.” Likewise, Kucik and Pelc (2016) argue that private negotiations during settlement of World Trade Organization disputes create negative externalities for other members.

  11. For a detailed discussion of friendly settlements at the European Court, see Keller et al. (2010).

  12. The Inter-American Commission has a procedure for “compliance agreements” to merits reports. However, these are negotiations only over remedies, in line with the Commission’s original recommendations; there has still been a judgment against the state, which keeps compliance agreements as extensions of merits reports.

  13. In this way, human rights courts play the role of “decider”, rather than information revealer or coordinator (Johns 2012).

  14. In the parlance of Fig. 1, settlement refers to the left direction, resulting in the “Friendly settlement” node, while litigation refers to everything after the “Evaluate merits” node.

  15. In these cases, the Commission has also written a preliminary merits report finding a violation. However, the report is not published as such. Rather, it becomes part of the submission to the Court for judgment. Thus, I treat merits reports and Court judgments as mutually exclusive outcomes.

  16. This is even worse than the rate at the Commission, in which (only) 95% of rulings went against the state. All calculations of win percentage come from the author’s original data on petitions.

  17. In this case, the Court would lack competence rationae temporis. Several states ratified the American Convention in the 1970s and 1980s but did not recognize the Court’s competence to hear cases until the 1990s. In these instances, the petitioner may allege a violation of the American Convention on Human Rights for an incident that took place after the state’s ratification of the treaty, but may not be able to take the case to the Court if the incident took place before the recognition of jurisdiction.

  18. Inter-American Commission on Human Rights, 2000 Annual Report, Chapter II, para. 26.

  19. I use submissions to the Court and Court judgments interchangeably because the Court does not refuse any submissions. The uncertainty is over whether the Commission will submit the case to the Court, not whether the Court will evaluate the merits, conditional on submission.

  20. This is the year that the preliminary report was sent to the state and petitioners. It is not necessarily the same year as the year in which the merits report was published. On Fig. 2, this is represented by the “Violation” and “No violation” nodes, as this is the information communicated to the state.

  21. Ecuador is the only state for which I had monetary award values for all settlements. Ecuador also engaged in many settlements in both periods, which helps avoid dragging the average award up or down due to extremes or outliers.

  22. These numbers represent the average award per victim for each case. The majority of cases involve a single victim. For the few cases with multiple victims, I took the total award in that case divided by the number of victims in that case.

  23. By bargaining failure I mean instances in which both sides expressed a willingness to settle, but a settlement could not be reached.

  24. In other words, there were seven instances where the petitioner and state both indicated a willingness to settle, but a settlement could not be reached. In the other 30 instances, only one side indicated a willingness to settle, so no negotiations took place.

  25. Notably, there were also more instances in which at least one side wanted to settle after 2001 (20 of 46 cases, or 43%, compared to 37 of 133 cases, or 28%).

  26. In nine of these cases, the violation occurred prior to the state’s ratification of the American Convention and/or acceptance of the Court’s jurisdiction. In one case, the Court accepted the state’s preliminary objections on temporal jurisdiction, so the Commission took up the case again. In another case, the Commission felt there was insufficient evidence for the Court to find a violation; in the last case, the state had already revoked the relevant domestic law.

  27. In some cases, the Commission could not locate the petitioners, and so decided to keep the case at the Commission. In other cases, the petitioners could be found, but did not wish for the Court to take up the case.

  28. Once the merits report from a case has been published at the Commission, the matter cannot be referred to the Court even if the state has failed to comply with the Commission’s recommendations. The fact that a case will not be reconsidered even if states do not fulfill the recommendations is significant because it creates an opportunity for states to “game” the system by promising compliance to get the merits report published, and then refusing to comply later once the threat of referral to the Court has subsided.

  29. Note that these percentages do not exactly match up to the 20 cases that remained at the Commission because of substantial compliance or a compliance agreement. Even if there is a reason for a case to remain at the Commission, like the petitioners’ unwillingness or inability to move forward to the Court, states might still choose to implement some of the Commission’s recommendations, especially if they anticipate a case might move forward if non-compliance is observed.

  30. See Inter-American Commission on Human Rights, “Follow-up Factsheet of Report No. 47/01, Case 12.028, Donnason Knights.”

  31. I limit the compliance window to five years here to ensure the state has an adequate chance to comply, and also to restrict the possibility that compliance is more likely in older cases simply because the state has had more time to implement the Court’s rulings. Data from the author.

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  1. Perry World House, University of Pennsylvania, Philadelphia, PA, USA

    Francesca Parente

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Parente, F. Settle or litigate? Consequences of institutional design in the Inter-American system of human rights protection. Rev Int Organ 17, 39–61 (2022). https://doi.org/10.1007/s11558-020-09412-y

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