Emerging Voices: Extraordinary Reparations, Legitimacy, and the Inter-American Court
[David L. Attanasio is a professor of law at the Jorge Tadeo Lozano University in Bogotá, Colombia, and Doctoral candidate in philosophy at U.C.L.A.]
The Inter-American Court of Human Rights—the highest authority dedicated to enforcing international human rights law in the Inter-American system—has received deep praise for its influential and innovative reparations decisions (.pdf). Nonetheless, its more innovative reparations measures suffer from a serious problem of legitimacy, in that they do not seem to respond to the human rights violations that the Court identifies. Specifically, in the vast majority of its reparations decisions since 2001, the Court has ordered what I call extraordinary reparations, measures such as human rights training, changes to law and policy, improvements in the justice system, and provision of education, water, food, or public services (preceding links to .pdfs). These typically are in addition to compensation payments and other measures explicitly designed to eliminate the violation’s consequences. Although the Court has not adequately defended its practice of ordering extraordinary reparations, several potential bases of legitimacy may justify its principal decisions. Some extraordinary reparations are disguised orders to cease violations, others seek to repair damage to communities, and some aim to repair victim trust in the state.
Despite the importance of its innovations, the Inter-American Court has not explained why it may order extraordinary reparations, particularly when it has already ordered measures supposedly sufficient to eliminate the effects of past human rights violations. For example, following a forced disappearance (.pdf), the Court ordered monetary compensation for the victim’s family supposedly equivalent to the harm suffered, but went on to order, among other measures, a literacy program for the victim’s mother. The American Convention on Human Rights empowers the Court to order reparations only for identified human rights violations, not to order any measure it thinks might make for a better state or for a more human rights-friendly social environment. It is not an international legislature. However, extraordinary reparations, which often appear aimed at changing the victim’s circumstances, apparently lack any “causal nexus” (.pdf) with a past human rights violation. As states have complained (.pdf), they do not seem to address the violation’s effects, as other reparative measures such as restitution or compensation are supposedly sufficient for that objective. The Court lacks explicit principles in its jurisprudence sufficient to clarify when and why extraordinary reparations might be legitimate.
The need for principles and limits is particularly salient given the small number of contentious cases the Court resolves each year—between nine and nineteen in recent years. It directly reviews only a small portion of all the alleged human rights violations that occur in the states subject to its jurisdiction, sharply limiting the direct control it can impose on states. This fact creates a powerful incentive to find ways to address human rights violations in the Americas other than by imposing accountability in individual cases. One temptation is to seek deeper changes in the states and their societies through apparent exercises of the reparations power that the American Convention concedes to the Court. To accomplish this end, the Court may order human rights training for state officials, changes to certain institutional structures, or changes to legislation as extraordinary reparations for the victims of human rights violations. But these reparative measures—as desirable as they are given the Court’s limitations—may not be legitimate, depending on whether they in fact respond to the past violations or their consequences.
Nonetheless, three bases of legitimacy can explain and justify the main trends in the Court’s extraordinary reparations jurisprudence and provide guidance and limits in the future. First, many extraordinary reparations measures are actually legitimate orders to cease ongoing human rights violations. For example, in Atala Riffo v. Chile (.pdf), the Court held that Chile violated the American Convention when it deprived a woman of child custody on the basis of her sexual orientation. It then ordered, in addition to the nullification of the custody decision and monetary compensation, changes to Chilean law and legal practice and non-discrimination training for public officials. These reparations might be understood as orders to eliminate laws, practices, and states of affairs that in themselves constitute violations of the American Convention. The Court may legitimately order cessation of such violations for the same reasons that a domestic court may legitimately invalidate an unconstitutional law or practice in a case where the law or practice was applied and generated a constitutional violation. However, cessation orders are legitimate only if the Court identifies that the circumstances in question violate the Convention, so the Court ought to change its typical practice of leaving the violation unspecified.
Second, many extraordinary reparations are legitimately aimed at eliminating the consequences of past human rights violations for a community rather than for individuals. Even though the measures may appear disconnected from the past violations because restitution, compensation, or rehabilitation (medical or psychological treatment) have already been awarded to individual victims, such extraordinary measures nonetheless can be legitimate. For example, Rio Negro Massacres v. Guatemala (.pdf) concerned a village subject to massacres and forced displacement, many of whose residents resettled in the town of Pacux. The Court ordered that the state implement a number of measures to improve life in Pacux, including provision of medical personnel for a health center, food security programs, improved streets, supply of water, drainage and sewers, and improved schooling facilities.One way to understand the collective measures in this case is as an attempt to repair the damage to the social fabric of the community caused by the massacres and displacement. Even if the required reparations for individuals were sufficient to eliminate the individual effects of past human rights violations, the Court may legitimately order additional measures to restore (or to attempt to restore) community cohesion. However, if the Court believes that the community was harmed and must be repaired, it ought to identify explicitly the harm and argue that extraordinary reparations are relevant to rebuilding the community.
Finally, extraordinary reparations may legitimately aim to repair victim trust in the state that the human rights violation damaged, an effort that will often require more than simply eliminating the material effects of the violations. Apologies, recognition of responsibility, construction of monuments or museums, and commemorative days may serve this purpose, for example. However, the reparations that are appropriate means to rebuild trust and thereby promote reconciliation depend on the social context of the victim, such as whether the victim was subject to discrimination on the basis of some characteristic like ethnicity, gender, or sexual orientation. These factors affect what measures are appropriate to restore the victim’s trust that the state will treat him or her appropriately and that it will not commit future human rights violations. For victims that were subject to marginalization in the form of discrimination or distributive injustice, repair may require exceptional measures. Reparations that merely seek to eliminate the consequences of the human rights violations may be insufficient; restoring the victim’s trust may require measures that attempt to change the social circumstances of the victim. Once again, it is important that the Court clearly identify that it is ordering reparations to rebuild damaged social trust in exceptional circumstances and to defend the pertinence of the measures to that end.