Contesse: Settling Human Rights Violations

Jorge Contesse (Rutgers Univ. - Law) has posted Settling Human Rights Violations (Harvard International Law Journal, forthcoming). Here's the abstract:

In the past few decades, human rights courts have been widely established around the world, sparking the interest of legal scholars who devote significant attention to state accountability for human rights violations. Academic centers exclusively dedicated to the study of international courts have appeared, and conferences on the role of international adjudication now abound. International law has become a juricentric discipline.

With the enormous attention afforded to the international human rights judiciary, critical aspects of non-judicial human rights decision-making are often neglected. One understudied mechanism is that of friendly settlements, whereby victims of human rights violations, acting under the “good offices” of regional human rights bodies, enter into direct negotiations with respondent states toward a consensual resolution to a human rights dispute. Despite its prolific use in regional human rights regimes, legal scholars have largely neglected the friendly settlement mechanism. This Article fills that gap. Drawing on a review of all friendly settlements executed before the Inter-American Commission on Human Rights, as well as interviews with Commission personnel (including two of its former presidents), state officials from six Latin American countries, members of non-governmental organizations, and petitioners, this Article comprehensively analyzes the general practice of settling human rights disputes. The Article identifies various motivations underlying the practice: states avoid the “naming and shaming” that comes with human rights litigiousness; victims more quickly obtain reparations; and human rights bodies alleviate their backlog.

But friendly settlements also raise serious—and unnoticed—challenges. The Article unearths both normative and practical concerns with settling human rights violations and considers a novel alternative. It proposes an improved form of friendly settlement that (i) distinguishes between and affords differentiated procedural treatment to disputes concerning individual violations and those seeking structural remedies, and (ii) delegates negotiation and compliance functions to local authorities. With these improvements, the Article concludes, human rights settlements can play a critical role in holding states accountable, along with—and even more than—human rights adjudication.