The Construction of the Customary Law of Peace: Latin America and the Inter-American Court of Human Rights 1800371861, 9781800371866

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The Construction of the Customary Law of Peace

For my husband, Ole Kristian, in appreciation for his unwavering support of renewed immersion in Latin America

The Construction of the Customary Law of Peace

Latin America and the Inter-American Court of Human Rights

Cecilia M. Bailliet Professor, Department of Public and International Law, University of Oslo, Norway

Cheltenham, UK • Northampton, MA, USA

© Cecilia M. Bailliet 2021

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2021936624 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781800371873

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ISBN 978 1 80037 186 6 (cased) ISBN 978 1 80037 187 3 (eBook)

Contents Acknowledgmentsviii 1

Introduction to The Construction of the Customary Law of Peace1 1.1 Peace at the international level 4

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The evolution of the Inter-American law of peace: treaties and custom 2.1 Introduction 2.2 The Chaco War (1932–1935) 2.3 The Anti-War Treaty of Non-Aggression and Conciliation and the Montevideo Convention on the Rights and Duties of States 2.4 The Inter-American Conference on the Maintenance of Peace 2.5 The Inter-American Treaty for Reciprocal Assistance (Rio Treaty) and the American Treaty on Pacific Settlement (Pact of Bogotá) 2.6 The Organization of American States – an order of peace and justice 2.7 Sub-regional organizations 2.8 Conclusion

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Constitutional approaches to peace within Latin America 3.1 Introduction: peace as constitutional value or aim of the state 3.2 Liberal-statist internal orientations towards peace: protest marches, state responses, and the risk of oppressive peace  3.3 Negative peace: externally oriented peace, pacific settlement of disputes, peaceful coexistence, nuclear disarmament, peace missions, and territorial peace 3.4 Conclusion v

20 20 20 23 25 36 41 45 47 48 48 50 76 82

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The contribution of constitutional positive peace iterations 4.1 Introduction 4.2 The justiciability of peace as a right and/or duty 4.3 Peace and human rights 4.4 Culture of peace 4.5 Conclusion

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The contribution of the Inter-American Court of Human Rights to positive peace – perspectives from the judges 5.1 Introduction 5.2 The adoption of the Statute of the Court in La Paz upon the foundation of hierarchical peace 5.3 Seating the Inter-American Court of Human Rights in Costa Rica – towards positive peace 5.4 The normative scope of peace – perspectives from former presidents and current judges of the Inter-American Court of Human Rights 5.5 Conclusion

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The responsive court and promotion of positive peace – upholding equality and non-discrimination – justiciability and compliance challenges 6.1 Introduction 6.2 Framing peace according to the American Convention on Human Rights 6.3 Equality and non-discrimination in relation to positive peace 6.4 Direct justiciability of economic, social, cultural, and environmental rights and implications for the justiciability of peace 6.5 Non-repetition orders of the Inter-American Court of Human Rights pursuing sustainable peace through structural equality and non-discrimination 6.6 The added value defining a quality peace: bridging ius constitutionale commune en America Latina with peace studies 6.7 Peace and the conventionality control doctrine 6.8 Conclusion

83 83 84 100 107 115 117 117 117 119 120 131

132 132 132 135 137 150 159 168 171

Contents

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Towards a sustainable gendered peace: the battle for hearts and minds within the Inter-American Court of Human Rights 7.1 Introduction 7.2 The normative and institutional link between peace and gender in Latin America 7.3 Feminist social mobilization and counter-mobilization 7.4 The polarization of gender within society and the Inter-American Court of Human Rights: competitive framing – autonomy v. protection 7.5 Non-compliance with reparations orders related to non-repetition guarantees involving women’s rights 7.6 Conclusion: towards a gendered peace within Latin America – moving beyond polarization  Conclusion: reflections on the construction of a pro homine customary peace

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173 173 176 179 182 200 211 214

Index217

Acknowledgments I extend my highest appreciation to the judges, lawyers, Secretariat, and librarians of the Inter-American Court of Human Rights for generously granting me interviews and access to the library of the Court. I am grateful to the University of Peace in Costa Rica for receiving me as a Visiting Researcher during my sabbatical from the Department of Public and International Law at the University of Oslo, Norway and allowing me to combine peace research and teaching. I benefitted from insightful comments offered to my presentations by researchers at the Peace Research Institute of Oslo, iCOURTS in Copenhagen, the Department of International Relations at the London School of Economics, the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, the Center for Global Constitutionalism at the Humboldt University in Berlin, the Norwegian Latin American Research Network at the Centre for Development and the Environment in Oslo, and participants of the Law & Society Conference 2020. The support given by Edward Elgar throughout the process of realizing the vision of this project was exemplary. C.M.B.

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1. Introduction to The Construction of the Customary Law of Peace Peace is both a historical and modern aim of law, dating back to the Peace of Westphalia and confirmed within universal, regional, and national constitutional instruments.1 There are new normative iterations of peace at the international level, including recognition of its status as a human right by the UN General Assembly (UNGA) as well as a UN Sustainable Development Goal, that signal a pluralistic approach to implementation.2 Latin America and the Inter-American Court of Human Rights provide a contextual setting for examination of the emerging construction of a customary law of peace evolving from its negative form (absence of violence) to its positive form (equality, non-discrimination, and social justice) and the challenge of articulating a pro homine peace. The book commences with an overview of the normative development of peace at the international and regional levels concluding that peace is a Gründnorm that has received universal recognition due to its unique quality as both an end and a means of the legal system; as one can only attain peace through pacific means of dispute resolution. This is followed by a historical reflection of normative (treaties and declarations) and institutional peace development within Latin America, beginning with the negotiation that ended the Chaco War in 1935 between Bolivia and Paraguay. In 1936, President Roosevelt called for an Inter-American conference to promote the preservation of peace as a common aim within the region. The conference confirmed the foundational values of constitutional representative government, social justice, and peace for Latin America. This led to the establishment of the Organization of American States (OAS) and the Inter-American Court of Human Rights, as well as sub-regional organizations which characterize the region as a “Peace Zone.”

1 Cecilia M. Bailliet, “Introduction”, Research Handbook on International Law and Peace (Edward Elgar Publishing 2019). 2 UN General Assembly, Declaration on the Right to Peace: resolution/adopted by the General Assembly, 2 February 2017, A/RES/71/189, https://​www​.refworld​.org/​ docid/​589c72134​.html (accessed 27 April 2020) and UN Sustainable Development Goal #16, https://​su​stainabled​evelopment​.un​.org/​sdg16 (accessed 3 June 2020).

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The book explores the heterogeneous normative nature of peace within Latin American constitutions beyond its status as an aim, value, or principle of the legal order: first, appearing as a marker of the state’s controlling function in situations of protests, revealing the risk of oppressive peace; second, as an external obligation of pacific dispute resolution and peaceful coexistence with other states, including nuclear disarmament and territorial peace; third, as a justiciable right to be claimed by an individual or a group, alternatively as an obligation of the state and/or society vis-à-vis the domestic society; fourth as linked to human rights; and fifth as an aspect of culture through peace education and domestic alternative dispute resolution in labor conflicts. It is notable that both state and civil society actors have played a role in pursuing peace within the region, as evidenced by the six Nobel Peace Prizes awarded to Latin Americans: 1936 Carlos Saavedra Lamas (Argentina), 1980 Adolfo Pérez Esquivel (Argentina), 1982 Alfonso García Robles (Mexico), 1987 Óscar Arias Sánchez (Costa Rica), 1992 Rigoberta Menchú (Guatemala), and 2016 Juan Manuel Santos (Colombia). In 2018, upon the commemoration of the 40th Anniversary of the Inter-American Court of Human Rights, the then acting President of the Court, Judge Eduardo Ferrer Mac-Gregor, announced that the Court would double its efforts in pursuit of peace, justice, and human rights. This book argues that peace should be interpreted in accordance with the pro homine principle, which calls upon judges to apply the most favorable law that will benefit individuals, regardless of their origin, their generality or specialty, or their national or international status.3 It is suggested that this can be an important strategy for the consolidation of peaceful societies and prevention of violence. In particular, this book presents the pluralistic views on the normative value of peace by former and current judges in the Inter-American Court of Human Rights. This is followed by a discussion of the issue of justiciability of positive peace through the Court’s jurisprudence on equality and non-discrimination. The Inter-American Court of Human Rights can play a role in gap filling by defining the scope of the regional pluralistic normative understanding of peace as a value, aim, and principle to be respected by states and non-state actors. It is suggested that its contribution to building sustainable peace is found within its non-repetition guarantees addressing structural equality and non-discrimination measures. Yet, there are challenges for the Inter-American Court of Human Rights regarding state compliance with positive peace-related orders.

3 Yota Negishi, “The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control” 28(2) European Journal of International Law (2017) pp. 457–481.

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The book proposes that peace should be considered as an additional component of jus commune. Jus commune refers to harmonization of a common core of legal principles. At the Inter-American regional level, jus commune recognizes the aims of democracy, rule of law, and human rights.4 To form part of the regional jus commune it is not necessary to harmonize the national concepts of peace, but rather to harmonize the national variants with the international understanding of peace. As there is no universal definition of peace at the international level, there is flexibility regarding acceptance of national variants, however it is arguable that at the regional level, the national variants should be interpreted in accordance with the American Convention on Human Rights, OAS Charter, and other regional human rights instruments. This book does not focus on transitional justice or jus post bellum issues which have often received attention within peace studies.5 The book seeks to build a bridge between human rights, constitutional law, and peace scholarship. Moreover, as the current President of the Inter-American Court of Human Rights, Judge Elizabeth Odio Benito, has confirmed the commitment of the Court to pursue both peace and gendered justice, there is an examination of what are the components of a sustainable gendered peace as a particular dimension of a pro homine peace.6 The conclusion suggests that there is evidence of an evolving customary law of peace within the region that is pluralistic and may be strengthened by the Court’s progressive jurisprudence as well as that of national courts. It is suggested that this will add a new chapter to the Inter-American Court of Human Rights’ role as a norm entrepreneur in defining the contours of the de lege ferenda normative regime that aims to support the consolidation of sustainable peaceful societies.

4 Federico Mayor, “La paz, el desarrollo y la democracia forman un triángulo interactivo, cuyos vértices se refuerzan mutuamente” 21 Diálogo, Derecho Humano a la Paz: Germen de un Futuro Posible 4 (UNESCO, Mexico, June 1997). 5 On transitional justice in Latin America, see Elin Skar, Jemima Garcia-Godos and Cath Collins, Transitional Justice in Latin America: The Uneven Road from Impunity Towards Accountability (Routledge 2016). For a critical discussion of the limitations of law in the context of transitional justice and peacebuilding, see Chandra Lekha Sriram, “Beyond Transitional Justice: Peace, Governance, and Rule of Law” 19(1) International Studies Review (2017) pp. 53–69. On jus post bellum see Carsten Stahn, Jennifer Easterday and Jens Iverson, Jus Post Bellum: Mapping the Normative Foundations (Oxford University Press 2014). 6 See Inter-American Court of Human Rights, “Inaguracíon del Año Judicial Interamericano 2020” (2020), https://​corteidh​.or​.cr/​sitios/​libros/​todos/​docs/​apertura/​aj​ _2020​.pdf (accessed 14 October 2020).

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1.1

PEACE AT THE INTERNATIONAL LEVEL

1.1.1

Peace as a Gründnorm

Peace itself is divided between the negative variant (the absence of violence) and the positive variant (social justice, cooperation, non-discrimination, equality, and elimination of structural violence). Hans Kelsen believed that only negative peace was to be considered law; however this book argues that a regional customary law of a pluralistic peace which is inclusive of positive peace is being constructed.7 Kelsen’s pure theory of law sets forth that all of the valid rules of law of a legal system must be mutually consistent and derive their force from a Gründnorm (basic norm).8 Taking into account that Kelsen recognized that the Gründnorm may not be the same in every legal order, it may be argued that peace may be considered to be a Gründnorm which remains under evolution at the international, regional, and national levels and hence has pluralistic normative iterations. As a Gründnorm, states should aim to ensure that their laws, regulations, policies, and practices harmonize with the aim of peace. The uniqueness of peace as a common value is that it is both an end and a means of the transnational legal system; one can only attain peace by pursuit of pacific means of dispute resolution. The validity of peace is grounded in its multifaceted qualities as an overarching substantive principle and provides criteria for evaluation of procedures through the concept of pacific settlement of disputes within law. It is arguable that all states claim to recognize the obligation to act in pursuit of negative peace, as evidenced by the significant reduction of inter-state conflicts in the modern period.9 Although Latin America has eliminated inter-state war in the modern epoch, it is plagued by high levels of internal violence and social unrest. As noted by Anna Spain, “we have shifted from a world in which peace had to be secured between states to one in which

7 See Helmut Rumpf, “The Concepts of Peace and War in International Law” 27 German Yearbook of International Law 429 (1984), discussing the fact that negative peace has a “more evident epistemological structure” (absence of violence or war) than positive peace (a social aim based on social justice which “is a matter of values and principles subject to dispute”). He states that the legal and sociological positivists discarded justice as an unscientific concept, due to its subjective quality. Hence even international relations scholars focused on negative peace. 8 Hans Kelsen, Pure Theory of Law (The Lawbook Exchange 2009). 9 See Hans Blix, “Is the World on the Road to Peace or War?” Lecture 1 (SIPRI 2018), noting the reduction in violence but citing concern for the maintenance of interventions, failure of the UN Security Council to respond, and contradiction of UN Security Council resolutions by member states, https://​ www​ .sipri​ .org/​ sites/​ default/​ files/​2018​-10/​sipri​-lecture​-01​.pdf (accessed 15 July 2020).

Introduction

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peace must be secured within the state between peoples.”10 The conundrum for states is how to promote internal peaceful coexistence in a manner that is not oppressive. This raises queries regarding implementation: What is the added value and drawback of applying peace as a normative value within law? Given that Latin American states vary in political, economic, historical, social, and cultural background, the application of peace in practice aims for consistency but also requires flexibility in order to be considered legitimate by the local society. In terms of the viability of peace receiving recognition as customary law, on the one hand it has normative recognition in the sense that it appears in universal, regional, and national instruments. However, on the other hand, the formulation of a “right to peace” has not been taken up by the International Law Commission nor espoused by the important non-governmental organizations (NGOs), such as Human Rights Watch or Amnesty International, although it is promoted by other NGOs from the South.11 It is described as a third-generation hybrid human right representing “law from the South,” in company with the right to solidarity and the right to development.12 A question arises as to how one would identify a violation of the right to peace, in the positive sense. Finally, one may inquire as to what is the added value of processing this right by a court and what is the remedy. Or have we moved beyond justiciability in terms of the search for progress towards peace? 1.1.2

Peace as Part of the Universal Jus Commune

Inter-American Court of Human Rights Judge Eduardo Ferrer Mac-Gregor invokes a common cultural space created by the integration of international and national human rights standards as formulating a universal jus commune for humanity, protecting human rights and spanning all the regions, uniting universal, European, and African approaches with Inter-American perspec-

Anna Spain, “Deciding to Intervene” 51 Houston Law Review 847 (2014). See Charity Butcher and Maia Carter Hallward, “Bridging the Gap between Human Rights and Peace: An Analysis of NGOs and the United Nations Human Rights Council” 18(1) International Studies Perspectives (February 2017) pp. 81–109, noting “[r]eligiously-affiliated and women’s NGOs typically link these concepts, while non-Western NGOs stress peace over human rights.” 12 The draft declaration on the right to solidarity: https://​www​.ohchr​.org/​Documents/​ Issues/​Solidarity/​Draf​tDeclarati​onRightInt​ernational​Solidarity​.pdf (accessed 23 September 2020) and the UN Human Rights Council, Working Group on the Right to Development, Draft Convention on the Right to Development, A/HRC/WG.2/21/2 (17 January 2020) https://​www​.ohchr​.org/​Documents/​Issues/​Development/​Session21/​3​_A​_HRC​_WG​.2​_21​_2​ _​AdvanceEditedVersion​.pdf (accessed 23 September 2020). 10 11

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tives, in pursuit of harmonization.13 This section reviews the normative framework of peace at the universal and regional levels. 1.1.2.1 The UN Charter – peace as an end and a means Evidence that peace forms part of the universal jus commune may be gleaned from the fact that peace as a value, end, and means is explicitly recognized within the UN Charter. The preamble sets forth the aim: to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security. Article 1 articulates that the substantive and procedural purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

Article 2(3) creates an obligation to pursue pacific dispute resolution: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” This is further developed in Article 33, which sets forth an obligatory sequence for pacific dispute resolution: 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means (emphasis added).

The normative framework sets forth an expected code of conduct for states as well as a set procedural and institutional structure for the pursuit of peace.14 13 Eduardo Ferrer Mac-Gregor, “What Do We Mean When We Talk About Judicial Dialogue?” 30 Harvard Human Rights Journal 89 (2017). He cites Giuseppe de Vergottini, “Dialogo Jurisprudencial” in Eduardo Ferrer Mac-Gregor, Fabiola Martinez, and Giovanni A. Figueroa (eds), Diccionario de Derecho Procesal Constitucional y Convencional (Universidad Autonoma Nacional de Mexico 2014) p. 584. 14 See Cecilia M. Bailliet and Simon O’Connor, “The Good Faith Obligation to Maintain International Peace and Security and the Pacific Settlement of Disputes” in

Introduction

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1.1.2.2 Peace and human rights The Universal Declaration of Human Rights preamble declares the protection of human rights as a means to attain global peace, thereby linking the two umbrella terms: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Similarly, the preambles of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights also state that human rights are the foundation of world peace: “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” These articulations underscore that it would not be possible to enjoy a true state of peace without respect for human rights, thereby implicitly impugning repressive policies and actions that would violate human rights in the name of peace. The elements of human dignity, equality, and enjoyment of rights are thus intrinsic to fulfillment of peace by a state, thereby setting a foundation for recognition of positive peace obligations. Asdrubal Aguilar suggests that peace may be considered an inalienable right of individuals and the human family, on account of being the condition for the exercise of human rights.15 Celestino Del Arenal argues that peace is a meta-right which encompasses all other human rights because without peace you cannot enjoy human rights, and inversely without human rights you cannot enjoy peace.16 Hence, one may argue that peace is the realization of human rights.17 Indeed, peace may be considered to be one of several umbrella concepts which are interlinked, e.g. Justice, Development, Security, Sovereignty, Democracy, Rule of Law, and Human Rights.18 Together, they provide an overarching foundation for international cooperation to address current global challenges – such as climate change,

Cecilia M. Bailliet (ed.), Research Handbook on International Law and Peace (Edward Elgar Publishing 2019) pp. 83–106. 15 Asdrubal Aguilar, “El derecho humano a la paz,” speech in the XXIX General Conference of UNESCO, Paris 1997. Talleres Graficos de la Nacion (Imprenta Nacional Caracas November 1997) p. 2, cited by Virginia Arango Durling, Paz Social y Cultura de Paz (Ediciones Panama Viejo 2007) pp. 16–17. 16 Celestino Del Arenal, “Paz y Derechos Humanos” 5 Revista del Instituto Interamericano de los Derechos Humanos (1987) pp. 5–22. 17 Nicolas Maria Lopez Calera, “Vivir en paz: Paz y Derechos Humanos” 1(1) Derechos y libertades (Instituto Bartolomé de las Casas 1993) pp. 169–178, cited by Durling, supra note 15 at 18. 18 See generally James M. McCormick and Neil J. Mitchell, “Human Rights Violations, Umbrella Concepts and Empirical Analysis” 49(4) World Politics (1997) p. 512.

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forced migration, terrorism, racism, xenophobia, and poverty. Determination of whether there is a hierarchical relationship among the umbrella concepts, how to interpret the components of each concept, or whether one value should be sacrificed for the sake of the other present many dilemmas.19 It is not advisable to pursue hierarchical rankings among the umbrella concepts, but there is a need to research conflicts and commonalities between them. Frederico Mayer explains the interconnectedness between peace, democracy, and development: Durable Peace is the premise and requirement for the enjoyment of human rights and obligations .. Peace, Development and Democracy form an interactive triangle. Without democracy there is durable development, the inequalities become unsustainable and there is violence, the opposite of peace. Peace corresponds to a basic human need and is capable of being defined as a human right. Without peace, there are no human rights. Without peace, not only does violence reign but humanity is degraded and human life loses its transcendental quality. Peace is an aspiration as are all human rights, that are conquered daily, limited daily, and frustrated daily.20

One may consider Judge Pazmiño Freire’s dissent on the 2018 Rejection of the Request by the Inter-American Commission on Human Rights for an Advisory Opinion addressing the impeachment of the President of Brazil and underscoring the importance of the Court engaging with the umbrella concepts of Democracy and Human Rights:21 I regret the fact that my colleagues have not chosen to make a thorough examination of this issue which, in my opinion, is essential in order to avoid the erosion of democracy in our region. The effective guarantee and defense of civil and political rights, as well as the human rights system as a whole, has become and is a crucial part of the essence of modern democracies. Accordingly, I consider it of the highest importance that the Court establish parameters that assist States in fulfilling their international obligations and, thus, that guarantee the full effectiveness of the American Convention and the strengthening of the Inter-American public order. The experiences of conflict and political persecution in our hemisphere, as well as 19 For example, consider research on the components of “Democratic Peace,” see Haavard Hegre, Michael Bernhard, and Jan Teorell, “Reassessing the Democratic Peace: A Novel Test Based on the Varieties of Democracy Data” (March 2018) V-Dem Working Paper 2018:64, https://​ssrn​.com/​abstract​=​3144969 or http://​dx​.doi​.org/​10​ .2139/​ssrn​.3144969 (accessed 15 July 2020). 20 Federico Mayer, “El derecho humano a la paz”, UNESCO 1997, cited by Asdrubal Aguiar, “Perfiles eticos y normativos des derecho humano a la paz” 110 Revista de la Facultad de Ciencias Juridicas y Politicas (Universidad Central de Venezuela 1998) p. 41. 21 I/A Court H.R., Rejection to the Request of an Advisory Opinion presented by the Inter-American Commission on Human Rights. Order of the Inter-American Court of Human Rights of May 29, 2018. Dissenting Opinion by Judge L. Patricio Pazmiño Freire.

Introduction

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constitutional reform without minimum standards of convention-based prevention, bear witness to what can happen in the absence of adequate safeguards for the democratic institutional framework.

Judge Friere provides an additional partial dissent in the Case of Petro Urrego v. Colombia (2020) involving the removal from office of the Mayor of the City of Bogotá, Gustavo Francisco Petro Urrego, who was prohibited from running for office for the next 15 years by the Attorney General of Colombia in 2013. As the process was not conducted by an independent judge competent in penal proceedings, nor were due process rights respected, the Court held that this constituted a violation of Article 23 of the American Convention on Human Rights on the right to participate in government.22 Judge Friere partially dissented, noting the failure of the Court to identify the Attorney General’s characterization of Petro Urrego’s left-wing policies as representing the threat of socialism of the 21st century meriting institutional silencing. In his partial dissent, Judge Friere characterized the disciplinary measures taken as disguised reprisal, persecution, or discrimination of ideology of social change constituting arbitrary action and abuse of power in violation of the principle of non-discrimination. He expressed concern that the Court failed to analyze the need to deconstruct the presumption of legality of the Attorney General’s Office, given that the aim was to disqualify Petro Urrego from running for president in 2018, thereby negatively impacting democracy:23 Consider the regional and international context, in which the academy, the justice system, as well as social and political actors, are raising their concerns regarding non-isolated practices of interference in the dynamics of democratic debate, under apparently legal forms. It is essential that we reaffirm some of the original sources that feed and sustain a republican state: the right to dissent, to diversity of opinions and creeds, and to political participation within the framework of a representative electoral democracy regime. Principles, values and rules that, by assuming them already incorporated into the institutional practice, we have taken for granted their comfortable existence; without realizing that slowly, but systematically, they are diluted ... by actions formalized in institutional frameworks, which, if not timely identified and legally contained, could favor a progressive and irreparable deterioration of the founding principles of the Inter-American system and its public order, seriously questioning the republican model of law ... At this time, it would seem, the 22 I/A Court H.R., Case of Petro Urrego v. Colombia, Preliminary Objections, Merits, Reparations and Costs. Judgment of July 8, 2020. Series C No. 406. 23 Ibid, Partial Dissent by Judge Freire. He cites cases in which the Court addresses disguised discrimination of processes: Case of Granier and others (Radio Caracas Televisión) v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 22, 2015. Series C No. 293, para. 189, and Case of San Miguel Sosa and others v. Venezuela. Merits, Reparations and Costs. Judgment of February 8, 2018. Series C No. 348, para. 190.

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transgression of the higher hierarchical order that protects universal, interdependent and indivisible human rights, as well as the founding principles of the OAS Charter, the Democratic Charter and the Convention, is being encouraged, by action or omission. The Inter-American Court on Human Rights, I am convinced, did not take advantage of the historic and decisive opportunity to vigorously contain any practice, open or veiled, that involves discrimination on the basis of ideas, confessions or creeds against politicians who exercise peacefully, democracy and law, his legitimate option of opposition status.

Violations of principal values, including democracy and peace, invariably weaken the protection of human rights and thereby require attention by practitioners, policymakers, academics, and judges. The next sub-section presents new normative developments supporting peace as a type of hybrid right for the modern epoch. 1.1.2.3 New normative developments supporting peace as a hybrid right 1.1.2.3.1 The 2016 UN Declaration on the Right to Peace The identification of peace as a customary norm within Latin America may be in part derived from review of regional state practice respecting the negative peace prohibition on the use of force between states, famously characterized as “The Long Peace” (albeit contradicted by increased use of force within states).24 Moreover there has been a marked increase in the adoption of state measures to implement positive peace guarantees related to improving enjoyment of equality and non-discrimination domestically.25 Nevertheless, it may be argued that its modern customary status would also be supported through

24 On the “long peace in Latin America” and the need for a new taxonomy to address latent interstate conflicts, see Tássio Franchi, Eduardo Migon, Eduardo Xavier Ferreira Glaser and Roberto Xavier Jiménez Villareal, “Taxonomy of Interstate Conflicts: Is South America a Peaceful Region?” 11(2) Brazilian Political Science Review (2017) pp. 1–23. Latin American States manage inter-state disputes through negotiation and discussion within the OAS forums, including the Peace Fund (https://​ www​.oas​.org/​sap/​peacefund/​peacefund/​, accessed 17 July 2020), inter-state complaints to the Inter-American Commission on Human Rights, as well as submission of cases to the International Court of Justice. On the increased use of force within states, see Elliott Davis, “UN Rights Official Warns of ‘Excessive Force’ Amidst Pandemic”, US News & World Report (29 April 2020). 25 On improved equality measures within the region, see Laura Clerico, Liliana Ronconi, and Martin Aldao, “Hacia la reconstrucción de las tendencias jurisprudenciales en América Latina y el Caribe en materia de igualdad: sobre la no-discriminación, la no-dominación y la redistribución y el reconocimiento” 9(1) Revista direito GV (2013) pp. 115–170.

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opinio juris by the recognition of peace as a human right by the UNGA, as explained by Stefan Talmon:26 One argument is that modern custom is related to new and important moral values and global challenges, such as peace, human rights and the environment, where the actual practice of states has been characterized by too many violations to serve as a sound basis for induction. In these areas, there is also an urgent need to create new rules and fill existing gaps; traditional custom is ill-suited to do this, being both too burdensome and slow to develop. Modern custom, on the other hand, can develop quickly because it is deduced from multilateral treaties and declarations by international forums such as the United Nations General Assembly (UNGA), which can declare existing customs, crystallize emerging customs and generate new customs. For these reasons, it is claimed, international human rights law, international humanitarian law, international criminal law and international environmental law should be arrived at by deduction.

In 2016, the UNGA adopted the Declaration on the Right to Peace, in respect of which all the Latin American nations voted in favor.27 The Declaration sets forth a framework for peace that signals recognition of a third-generation hybrid right, linking first-generation to second- and third-generation rights, and articulates the obligation of states to dismantle structural violence that impedes positive peace.28 It underscores a soft obligation upon the state to implement equality and non-discrimination. It also calls upon states to guarantee freedom from fear and want, traditionally linked to social security, social welfare, access to jobs, and housing. It is not necessarily designed to be justiciable (as this would depend on the national system), as it may be implemented through a state administrative policy or international organization (IO)/NGO projects, and civil society programs.29 Article 1 Everyone has the right to enjoy peace such that all human rights are promoted and protected and development is fully realized.

26 Stefan Talmon, “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion” 26(2) European Journal of International Law (2015) pp. 417–443. 27 UN General Assembly, Declaration on the Right to Peace: resolution / adopted by the General Assembly, 2 February 2017, A/RES/71/189, https://​www​.refworld​.org/​ docid/​589c72134​.html (accessed 1 March 2021). 28 On second-wave third-generation rights see Rosa Freedman, “‘Third Generation’ Rights: Is There Room for Hybrid Constructs within International Human Rights Law?” 2(4) Cambridge Journal of International and Comparative Law (2014) pp. 935–959. 29 See program by University of La Salle in Colombia to help displaced youths attain a life in peace, https://​www​.iica​.int/​es/​prensa/​noticias/​j​%C3​%B3venes​-colombianos​ -construyen​-su​-proyecto​-de​-vida​-en​-paz​-y​-promueven​-el​-desarrollo; CINEP, https://​ www​.cinep​.org​.co/​Home2/​temas/​ciudadania​-y​-paz/​4​-1​-iniciativasdepaz​.html; UNDP,

12

The construction of the customary law of peace

Article 2 States should respect, implement and promote equality and non-discrimination, justice and the rule of law, and guarantee freedom from fear and want as a means to build peace within and between societies. Article 3 States, the United Nations and specialized agencies should take appropriate sustainable measures to implement the present Declaration, in particular the United Nations Educational, Scientific and Cultural Organization. International, regional, national and local organizations and civil society are encouraged to support and assist in the implementation of the present Declaration. Article 4 International and national institutions of education for peace shall be promoted in order to strengthen among all human beings the spirit of tolerance, dialogue, cooperation and solidarity. To this end, the University for Peace should contribute to the great universal task of educating for peace by engaging in teaching, research, post-graduate training and dissemination of knowledge. Article 5 Nothing in the present Declaration shall be construed as being contrary to the purposes and principles of the United Nations. The provisions included in the present Declaration are to be understood in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and relevant international and regional instruments ratified by States.

This Declaration confirms the value of creating international and national institutions for peace education and calls for implementation of peace by the UN and United Nations Educational, Scientific, and Cultural Organization (UNESCO) as well as support by international, regional, national, and local organizations, and civil society.30 Hence, there are a diversity of actors and approaches when considering responsibility for peace. It should be noted that the Declaration sets forth a framework “respect, implement, and promote” peace instead of the “respect, protect, and fulfill” framework constructed to set forth the scope of fulfillment of obligations within human rights, which includes non-interference by the state, prevention of interference by third parties, as well as state adoption of legislative, judicial, or economic measures

https://​www​.undp​.org/​content/​dam/​colombia/​docs/​Paz/​undp​-co​-cursoconflictos​-2014​ .pdf; or NGO, http://​www​.mpdl​.org/​ or https://​www​.ffla​.net/​qu​%C3​%A9​-hacemos/​ programas/​cultura​-de​-paz​-y​-movilidad​-humana​.html (accessed 17 September 2020). 30 Articles 3–5. UNESCO was established in 1945 to promote peace thorough dialogue and mutual understanding. It promotes culture of peace education programs throughout Latin America: http://​www​.fund​-culturadepaz​.org/​spa/​informe​_cultura​_de​ _paz/​informe/​informeeng​.pdf (accessed 15 July 2020).

Introduction

13

for realization of the right.31 The Declaration’s formulation appears to characterize peace as requiring policy approaches. This may be due to the recognition of the importance of supporting culture of peace strategies through education and dissemination programs. Nevertheless, the maintenance of “respect” recognizes the state duty to refrain from interfering with enjoyment of the right to peace and this leaves open the possibility of justiciability depending on the national context. 1.1.2.3.2 Peace as a Sustainable Development Goal Peace is linked to UN Sustainable Development Goal number 16, which calls for promoting peaceful and inclusive societies for sustainable development, providing access to justice for all, and building effective, accountable institutions at all levels.32 Helen Ahrens refers to what may be considered as an essentialist concept of peace within the 2030 Agenda for Sustainable Development, Goal 16, which appears to be equivalent to protection from crime and violence.33 Manfred Nowak offers a critique that there is a lack of clarity as to its scope and content: SD16 is one of the most important SDGs as it promotes peaceful and inclusive societies, based upon equal access to justice and effective, accountable and inclusive institutions. It is particularly significant in relation to promoting civil and political rights, good governance and the rule of law. However, the relevant targets and indicators do not live up to this ambitious goal and convey more the impression of apples and oranges having been mixed together without any clear overall vision about peaceful and inclusive societies. This impression is confirmed when looking specifically at target SDG 16, which is intended to promote nothing less than the rule of law and equal access to justice for all.34

31 See Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford University Press 2019). Respect: the obligation to respect requires states to refrain from interfering with the enjoyment of rights. Protect: the obligation to protect requires states to prevent violations of human rights by third parties, such as non-state actors. Fulfill: the obligation to fulfill requires states to take legislative, administrative, economic, judicial, and other measures towards the full realization of human rights. 32 https://​su​stainabled​evelopment​.un​.org/​sdg16 (accessed 15 July 2020). 33 Helen Ahrens, “SDG 16.3 Promote the Rule of Law at the National and International Levels, and Ensure Equal Access to Justice for All: Its Impact on Latin America in the light of the American Convention on Human Rights” in Helen Ahrens, Horst Fischer, Veronica Gomez and Manfred Nowak (eds), Equal Access to Justice for All and Goal 16 of the Sustainable Development Agenda: Challenges for Latin America and Europe (Lit Verlag 2019). Ahrens noted that some Latin American countries resisted SG 16 (pp. 3, 5). 34 Manfred Nowak, “Equal Access to Justice: A Human Rights Approach to SGG 16” in Ahrens et al supra note 33, at pp. 17–20. “Rule of Law, Supremacy of the law,

14

The construction of the customary law of peace

In 2019, the Inter-American Court of Human Rights and UNESCO issued a joint document which outlines a strategy for engagement by the transnational, multi-institutional Latin American system for administration of justice, which includes public ministries, ministries of justice and human rights, judiciaries, public defenders, and international courts, to pursue UN Sustainable Development Goal number 16’s objectives to promote peace, justice, and strengthened institutions.35 Specifically, this is intended to reduce violence, strengthen the rule of law, and combat corruption and money laundering. It is also intended to support participation of the citizenry through protection of freedom of expression through legal and administrative reforms, addressing impunity, increasing transparency of the state, and improving public access to information. Inter-American Court Judge Ricardo Pérez Manrique encouraged judicial systems to seek an increased share of national budgets, noting “[t]o invest in Justice is to invest in Peace,” thereby confirming the link between the two umbrella terms.36 He expressed concern for marginalized communities that lack access to justice to assert their rights. Parra-Vera discusses the impact of the Inter-American Human Rights System (IAHRS), which he describes as emphasizing the empowerment of individuals, groups, or state agencies (indirect effects); changes in ideas, perceptions and social imaginaries of the issues addressed in the litigation (symbolic effects), and the “unblocking effect” of IAHRS decisions in helping to confront officials and state structures that seek to obstruct the full enjoyment of rights.37 He suggests that the IAHRS may additionally have a delibera-

equality before the law, accountability to the law, fairness in application of the law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency,” p. 33. See also M. Cherif Bassiouni, “Searching for Peace and Achieving Justice: The Need for Accountability” 59 Law and Contemporary Problems 9–28 (1996), https://​scholarship​.law​.duke​.edu/​lcp/​vol59/​iss4/​ 3 (accessed 15 July 2020). 35 Javier Benech, Foro de alto nivel: Fortalecimiento del Estado de Derecho y los Derechos Humanos para lograr Sociedades Pacíficas, Justas, Inclusivas y Transparentes (UNESCO 2019). He relates that in 2019 the “authorities of the Inter-American Court of Human Rights, the Conference of Ministers of Justice of the Ibero-American Countries (COMJIB), the Ibero-American Association of Public Ministries (AIAMP), the Ibero-American Judicial Summit and the Ibero-American Association of Public Defenders (AIDEF) met ... to improve international cooperation to combat organized crime, strengthen the confidence of the population in the system of administration of Justice and raise awareness that the rule of law is the only way to achieve better societies in which human rights become effective in their widest expression.” 36 Ibid at p. 12. 37 Oscar Parra-Vera, “Institutional Empowerment and Progressive Policy Reforms: The Impact of the Inter-American Human Rights System on Intra-State Conflicts”

Introduction

15

tive impact by promoting greater social participation, accountability, and debate regarding the reach and implementation of particular public policies. Through its actions, the IAHRS may become an ally for domestic institutions, thereby contributing to reforms which improve checks and balances and to the strengthening of institutions that advocate compliance with international human rights obligations. The Inter-American Commission and the Court of Human Rights can also act as allies to governments, judges, and legislatures that seek to advance compliance with their constitutional and legal commitments. Institutional empowerment can advance a progressive agenda related to sustainable peace. The obligation of the state to provide peace may be active or passive; it may require implementation and result in accountability for omissions. One may consider the obligation of the Colombian state and the Fuerzas Armadas Revolucionarias de Colombia (FARC – Revolutionary Armed Forces of Colombia) to pursue the peace process and implement the peace agreement in good faith. The state should fulfill, facilitate, promote, and provide peace, hence there is a need to map to what extent peace is regulated at the national level. The legislature can adopt, amend, or revoke laws to harmonize with the Gründnorm of peace. The executive can administrate peace – such as by promoting culture of peace initiatives within schools or local communities – facilitate the use of alternative dispute resolution (ADR) in labor disputes, and pursue peace treaties or agree to participate in peace missions. The judiciary can resolve conflicts and potentially serve to prosecute violations of peace or assess state responsibility for failure to protect individuals and communities from violence, as well as holding accountable state actors which violate human rights in the name of preserving peace, such as in response to protests. States may consider the creation of domestic monitors to measure internal peace, similar to the Positive Peace Index.38 However, Latin American states may claim economic limitations on their ability to meet positive peace obligations and this would require examination of the budget of the government as well as the potential extent of corruption within the state.

in Per Engstrom (ed.), The Inter-American Human Rights System: Impact Beyond Compliance (Palgrave 2019) p. 146. 38 Institute for Economics & Peace, Positive Peace Report 2018 and 2019, http://​ visionofhumanity​.org/​app/​uploads/​2019/​10/​PPR​-2019​-web​.pdf (accessed 17 July 2020).

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The construction of the customary law of peace

1.1.2.3.3 The Global Peace Index of Positive Peace The Global Peace Index identifies criteria to measure positive peace, which provide a framework for the study, suggesting components of positive peace:39 (1) Well-functioning government, rule of law, democracy, access to justice, separation of powers, checks and balances, transparency, good relations with neighbours. (2) Acceptance and rights of others – women, children, refugees, indigenous peoples, non-discrimination and equality, equitable distribution of resources, and social justice. (3) Low levels of corruption.

Although the first two criteria are important topics tackled by the Inter-American Court of Human Rights in its existing jurisprudence, the final issue remains a challenge for the Court in spite of the link between corruption and violation of human rights that was recently documented by the Inter-American Commission on Human Rights.40 According to the 2020 Global Peace Index the highest five countries in terms of positive peace are: Costa Rica (32), Uruguay (35), Chile (45), Panama (56), and Argentina (74). The lowest five are Guatemala (115), Nicaragua (135), Mexico (137), Colombia (140), and Venezuela (149). The Global Index reports a regional deterioration of peace due to political terror, violence by criminal and paramilitary groups, violent protests, and forced migration. The Latinobarómetro 2018 reported a significant decrease in trust in government and support for democracy, an economic downturn, as well as problems with elected authoritarianism and corruption.41 Within Latin America, state repression of regime opponents in Nicaragua, 39 The Institute for Economics and Peace, Global Peace Index 2020, http://​ visionofhumanity​.org/​app/​uploads/​2020/​06/​GPI​_2020​_web​.pdf (visionofhumanity. org) (accessed 17 July 2020). This quote taken from the Global Peace Index’s identification of Pillars of Peace published here: https://​www​.files​.ethz​.ch/​isn/​169569/​Pillars​ %20of​%20Peace​%20Report​%20IEP​.pdf. 40 Anne Peters, Corruption and Human Rights, Working Paper 20 (Basel Institute on Governance 2015); Anne Peters, “Corruption as a Violation of Human Rights” 29(4) European Journal of International Law (November 2018) pp. 1251–1287. Inter-American Commission on Human Rights, “Corrupción y Derechos Humanos Estándardes Interamericanos” (6 December 2019) OEA/Ser.L/V/II. Doc. 236, http://​ www​.oas​.org/​es/​cidh/​informes/​pdfs/​CorrupcionDDHHES​.pdf (accessed 22 September 2020). See Carina Bentata Gryting, “Asking Too Much: Why Regional Human Rights Courts Cannot Tackle Corruption” in GAB: The Global Anti-Corruption Blog (24 October 2016): https://​glob​alanticorr​uptionblog​.com/​2016/​10/​24/​asking​-too​-much​ -why​-regional​-human​-rights​-courts​-cannot​-tackle​-corruption/​ (accessed 22 September 2020), noting delays, funding gaps, and compliance problems facing the Court. 41 The 2018 Latinobarómetro Report is available at: https://​www​.latinobarometro​ .org/​lat​.jsp (accessed 20 September 2020).

Introduction

17

societal collapse in Venezuela, and state and gang violence in El Salvador, Honduras, and Mexico have resulted in mass migration within the region. In addition, the implementation of peace in Colombia is marred by assassination of human rights activists, while Guatemala’s peace is negatively affected by malnutrition, crime, corruption, and weakening of accountability for past war crimes. The pursuit of positive peace may be considered a regional imperative. 1.1.3

Other Regional Organizations

1.1.3.1 The European Union – towards a peaceful future The Treaty on European Union sets forth a framework for recognition of peace as a regional aim as well as a corresponding obligation to uphold it both internally and externally: the preamble calls for a common defense to promote peace in the region and the world. Article 3(1) sets forth that “[t]he Union’s aim is to promote peace, its values and the well-being of its peoples” and section (5) states that the EU shall contribute to peace in its external relations. Article 8 states that the EU shall maintain peaceful relations with its neighbors and Article 21 sets forth that the EU shall have a common foreign and security policy and take common action to preserve peace. These standards have served as a foundation for EU humanitarian actions and support for post-conflict peacebuilding, reconstruction, and education in other regions.42 The Charter on Fundamental Rights of the European Union (2007) characterizes a peaceful future as an aim of the Union in its preamble: “The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.” The European Convention for the Protection of Human Rights and Fundamental Freedoms sets forth in the preamble that the fundamental freedoms “are the foundation of justice and peace in the world,” thereby expressly linking the enjoyment of human rights as a condition for peace. Hence, there is a broad normative base for peace as a regional aim with a duty for its preservation, in keeping with the universal standards. 1.1.3.2 The Africa Union’s normative commitment to peace The African Union has the most comprehensive normative recognition of peace, encompassing its characteristics as an aim, value, principle, collective right, and culture. The Constitutive Act of the African Union, Article 3(f) identifies peace on the continent as an objective of the Union; Article 4 recognizes peaceful dispute resolution and states’ right to peaceful coexistence and the

42 See Ana E. Juncos and Jonathan Joseph, “Resilient Peace: Exploring the Theory and Practice of Resilience in Peacebuilding Interventions” 14(3) Journal of Intervention and Statebuilding (2020) pp. 289–302.

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The construction of the customary law of peace

right to live in peace as principles of the African Union. Taken together, these norms provide solid evidence for confirmation of the fundamental status of peace as an end and a means in correlation with the qualities articulated within the UN Charter. The African Charter on Human and Peoples’ Rights, Article 23(1) sets forth a justiciable collective right to internal and external peace: “All peoples shall have the right to national and international peace and security.” In comparison, the African Commission on Human Rights has had two cases addressing Article 23 on peace. In the first case, the Commission discussed the duty of non-intervention and obligation of pacific settlement of disputes, and in the second case, the legality of the use of embargo in response to a military coup was considered to be a breach of the peace.43 The African Protocol on the Rights of Women preamble recognizes peace as an African value. Article 4 requires states to promote peace education actively through curricula and social communication in order to eradicate elements in traditional and cultural beliefs, practices, and stereotypes which legitimize and exacerbate the persistence and tolerance of violence against women. Article 10 recognizes the right to peace and a culture of peace, and addresses women’s participation rights as well as calling for diversion of budget away from military expenditures in favor of social development: 1. Women have the right to a peaceful existence and the right to participate in the promotion and maintenance of peace. 2. States Parties shall take all appropriate measures to ensure the increased participation of women: (a) in programmes of education for peace and a culture of peace; (b) in the structures and processes for conflict prevention, management and resolution at local, national, regional, continental and international levels; (c) in the local, national, regional, continental and international decision making structures to ensure physical, psychological, social and legal

43 Case 227/99 African Commission of Human Rights, Democratic Republic of Congo/Burundi, Rwanda, Uganda and Case 157/96 Association pour la sauvegarde de la paix au Burundi/Kenya, Uganda, Rwanda, Tanzania, Zaire (DRC), Zambia. In the second case, the Commission found that the states legally applied an embargo on Burundi in response to military coup in Burundi which was considered a breach of the peace. The Commission concluded that the Respondent States were not guilty of violation of the African Charter. The Commission took note of the entry into force of the Burundi Peace and Reconciliation Agreement, as well as the efforts of the Respondent States aimed at restoring a lasting peace, for the development of the rule of law in Burundi, through the accession of all Burundian parties to the Arusha Accord.

Introduction

19

protection of asylum seekers, refugees, returnees and displaced persons, in particular women; (d) in all levels of the structures established for the management of camps and settlements for asylum seekers, refugees, returnees and displaced persons, in particular, women; (e) in all aspects of planning, formulation and implementation of post-conflict reconstruction and rehabilitation. 3. States Parties shall take the necessary measures to reduce military expenditure significantly in favour of spending on social development in general, and the promotion of women in particular.

Furthermore, Kamari M. Clarke propones that the Malabo Protocol for the African Court pursue an approach that considers peace to be “the first measure for the management of violence and sustenance of life ... establishing pre-conditions for justice in Africa,” thereby requiring a sequencing of economic justice and political justice (including constitutional and legal reforms), followed by criminal and reparative justice.44 The combination of international instruments, policies, and engagement by international think-tanks oriented towards peace provides a normative foundation for recognition of peace as a universal value and the building of institutional mechanisms to promote peace policies and state practice for crystallization of customary international law. The next chapter will present an overview of the evolution of the Inter-American law of peace through treaty and custom.

44 Kamari M. Clarke, “Peace and ‘Justice’ Sequencing in Management of Violence in the Malabo Protocol for the African Court” in Charles C. Jalloh, Kamari M. Clarke and Vincent O. Nmehielle (eds), The African Court of Justice and Human and People’s Rights in Context (CUP 2019) p. 118.

2. The evolution of the Inter-American law of peace: treaties and custom 2.1 INTRODUCTION As a community, Latin America has long strived for the attainment of comprehensive peace through law. The articulation of peace as a regional aim is confirmed within the body of soft and hard law instruments that also recognize the importance of prioritizing pacific dispute resolution as the preferred alternative to the use of coercion and force. The normative evolution can be traced from an initial orientation towards upholding negative peace to the acknowledgement of positive peace aspirations for an integral regional order within the OAS Charter. The sub-regional organizations endorse the characterization of Latin America as a “Peace Zone” as a culmination of regional customary orientation. Yet, the universality of the aim is at present threatened by intra-regional divisions regarding the road to peace in practice.1

2.2

THE CHACO WAR (1932–1935)

As noted by William Schabas, the crime of aggression is the corollary to the right to peace, as the former is a preemptory norm in international law; this lends weight to the normative value of peace.2 Latin America has had a long tradition of articulating the law of negative peace, largely linked to the engagement of Carlos Saavedra Lamas, an Argentine diplomat who was the first Latin American to win the Nobel Peace Prize in 1936.3 He negotiated the peace

1 See Sabine Kurtenbach, “The Limits of Peace in Latin America” 7(3) Peacebuilding (2019) 283–296. 2 William Schabas, “The Human Right to Peace” 58 Harvard International Law Journal Online (2017) https://​harvardilj​.org/​2017/​04/​the​-human​-right​-to​-peace/​ (accessed 15 July 2020). 3 When Argentina joined the League of Nations in 1932, Saavedra Lamas deserved much of the credit; furthermore he played a leading role in the organization’s condemnation of Italy’s war on Ethiopia in 1936.

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The evolution of the Inter-American law of peace

21

agreement between Bolivia and Paraguay after the Chaco War (1932–1935).4 This war had been prompted by the discovery of oil deposits in the Chaco territory and the ensuing rivalry between the Royal Dutch Shell company (supporting Paraguay) and Standard Oil (supporting Bolivia).5 Another factor was Bolivia’s interest in securing access to the Atlantic Ocean through the Paraguay river, given that it had lost access to the Pacific Ocean as result of the 1879 War of the Pacific. The 1879 War of the Pacific was called the Saltpeter war as it was a result of Chile’s resistance to a tax imposed by Bolivia on the former’s mining activities within its territory in violation of the 1874 Boundary Treaty. Chile requested mediation, which Bolivia refused, preferring to resort to its local courts. Chile repudiated the treaty and embarked on a quest to gain access to the Pacific coastal territory, which was rich in natural resources including nitrates (saltpeter was used as fertilizer), guano (used for gunpowder), and copper.6 The Chilean navy defeated Peru (which was in an alliance with Bolivia) and there were significant battles within the Atacama desert. The war ended with a US-supported peace treaty and follow-up mediation by President Herbert Hoover that established the new boundaries. This enabled Chile to attain the territory and left Bolivia without access to the Pacific coast and setting the stage for the Chaco War. In the Chaco War, it is estimated that Bolivia suffered a casualty loss of 2 percent of its population (ca. 65,000), while Paraguay lost 3 percent of its population (ca. 36,000).7 The 1938 Chaco Treaty awarded most of the disputed territory to Paraguay but granted Bolivia a corridor to the Paraguay river and a port. In 2009, the presidents of Paraguay and Bolivia signed a final accord officially resolving the border dispute that resulted in the war, characterizing it as having been brought about by foreign interests.8 Ironically, commercially

4 “Tratado de Paz entre Paraguay y Bolivia”, Revisionistas, http://​ www​ .revisionistas​.com​.ar/​?p​=​11730 (accessed 15 July 2020). 5 For an overview of the impact of oil on politics within the region, see Frederick Haussmann, “Latin American Oil in War and Peace”, Foreign Affairs (January 1943), “Oil is too important a factor in war and peace and especially in hemisphere relations to be neglected in the framing of a Good Neighbour Policy.” 6 In 1884, Bolivia signed a truce, the Treaty of Valparaiso, whereby Bolivia accepted the military occupation of the entire Bolivian coast. The Treaty of Peace and Friendship of 1904 ceded the region of Antofagasta to Chile. In return, Chile agreed to build a railroad connecting the city of La Paz, Bolivia with the port of Arica and guaranteed freedom of transit for Bolivian commerce through Chilean ports and territory. 7 Alejandro De Quesada, The Chaco War 1932–35: South America’s Greatest Modern Conflict (Bloomsbury Publishing 2011). 8 “Bolivia, Paraguay end Border Dispute with Accord”, France 24 (28 April 2009), https://​www​.france24​.com/​en/​20090428​-bolivia​-paraguay​-accord​-end​-border​

22

Source:

The construction of the customary law of peace

The Smithsonian.

Figure 2.1

Shows the Guanays which leave guano, one of the causes of the War of the Pacific

viable oil and natural gas was finally discovered on both countries’ territory only in 2012.9 The elements of foreign interests in natural resources negatively impacting regional peace remain a constant theme, as evidenced by the challenges in Venezuela at the time of writing.10 It is notable that after the Chaco War, Paraguay amended its Constitution to guarantee social security benefits to the veterans of the Chaco war (and widows and children) as well as the

-dispute (accessed 25 July 2020). In 2018, the International Court of Justice held that Chile was under no legal obligation to negotiate a settlement to grant Bolivia access to the Pacific Ocean, indicating how relevant these issues are at present. 9 Jane Whaley, “Oil in the Heart of South America” 14(4) Geo ExPro (2017), https:// ​ w ww ​ . geoexpro ​ . com/ ​ a rticles/ ​ 2 017/ ​ 1 0/ ​ o il​ - in​ - the​ - heart​ - of​ - south​ - america (accessed 25 July 2020). 10 Anatoly Kurmanaev and Clifford Krauss, “To Survive Venezuela’s Leader Gives Up Decades of Control over Oil”, The New York Times (8 February 2020), https://​ www​.nytimes​.com/​2020/​02/​08/​world/​americas/​venezuela​-oil​-maduro​.html (accessed 25 July 2020).

The evolution of the Inter-American law of peace

23

Bolivian prisoners of war who chose to remain in Paraguay after the signing of the peace treaty.11 It may be considered an early example of a positive peace orientation that looks beyond negative peace orientations to provide a more comprehensive peace to the persons affected by the conflict.

2.3

THE ANTI-WAR TREATY OF NON-AGGRESSION AND CONCILIATION AND THE MONTEVIDEO CONVENTION ON THE RIGHTS AND DUTIES OF STATES

Carlos Saavedra Lamas (Figure 2.2) was inspired by the peace agreement ending the Chaco War and sought to expand the framework for regional peace by sponsoring an Anti-War Treaty of Non-Aggression and Conciliation (known as the Saavedra Lamas Pact), signed in Rio de Janeiro on October 10, 1933. This treaty aimed to condemn wars of aggression and territorial acquisitions obtained by the use of force and replace them with pacific solutions provided by international law based on justice and equity, including obligatory use of a permanent conciliation system in the case of unsuccessful diplomacy within a reasonable time, or alternatively use of arbitration or judicial settlement. Yet, it also included an adaptation of the Calvo Clause, calling for exhaustion of domestic remedies prior to conciliation on issues relating to constitutional law.12 The Anti-war Treaty was ratified by Argentina, Brazil, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay, the United States, and 11 Paraguay, Constitution (1992), Article 130: Of the Glorious Sons of the Fatherland Their widows and minor or handicapped children, including those veterans who were dead prior to the promulgation of this Constitution will succeed to the economic benefits. The benefits granted to the glorious sons of the Fatherland will not suffer restrictions and will be of immediate validity, with no requirements but their unfailing certification. The Bolivian ex-prisoners of war, who since the signing of the Treaty of Peace would have made the choice of integrating themselves definitively into the country, are equated to the veterans of the War of the Chaco, concerning the economic benefits and assistance advantages. 12 Manuel R. Garcia-Mora, “The Calvo Clause in Latin American Constitutions and International Law” 33 Marqette Law Review 205 (1949); Donald Shea, The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (University of Minnesota Press 1955). The Calvo Clause emphasized non-interference and called for exhaustion of domestic remedies in disputes between aliens and governments and waiver of diplomatic protection.

24

The construction of the customary law of peace

Source: Wikipedia.

Figure 2.2

Carlos Saavedra Lamas

Venezuela. It was also ratified by countries outside of the Americas: Bulgaria, Czechoslovakia, Spain, Finland, Rumania, and Yugoslavia. Additionally, it

The evolution of the Inter-American law of peace

25

was signed by Colombia, Greece, Norway, and Turkey. The OAS considers this Pact later to have been derogated from by the Treaty on Pacific Solutions (The Pact of Bogotá), nevertheless it remains valid for states which have not ratified the latter instrument. This was followed up by the Montevideo Convention on the Rights and Duties of States (1933), which sets forth the criteria for statehood, recognizing the declarative theory of statehood, the equality of states, and prohibiting the use of force (as well as threats and coercion) for territorial acquisition or advantages as well as intervention.13 Notably, Article 10 recognizes peace both as an aim of states and as a means: “The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognized pacific methods.” The emphasis on peace as a means underscores that pacific dispute resolution should not be considered secondary to peace as a substantive aim, given that violations of the obligation to adhere to these procedures have resulted in significant violence.

2.4

THE INTER-AMERICAN CONFERENCE ON THE MAINTENANCE OF PEACE

Three years later, Carlos Saavedra Lamas led an Inter-American Conference on the Maintenance of Peace held in Buenos Aires, Argentina in December 1936. President Franklin D. Roosevelt invited the heads of state of the Americas to join and participate in the first joint presidential radio broadcast throughout the region. The aspiration was to promote mechanisms to pursue regional peace and avoidance of the catastrophe of war plaguing Europe at the time.14 This conference produced a Declaration of Principles of Inter-American Solidarity and Cooperation, signed on December 21, 1936.15 The Declaration served to further promote Roosevelt’s Good Neighbor Policy, which sought to

13 Ratified by Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, the United States, and Venezuela. 14 Carlos Saavedra Lamas, The Inter-American Conference on the Consolidation of Peace (Buenos Aires 1938). International American Conferences were held regularly commencing in 1889 in order to promote the use of arbitration and pacific settlement of disputes, develop legal codes, and support commercial integration. 15 Declaration of Principles of Inter-American Solidarity and Cooperation, Declaration adopted by the Inter-American Conference for the Maintenance of Peace at Buenos Aires December 21, 1936; Report of the Delegation of the United States of America to the Inter-American Conference for the Maintenance of Peace, Buenos Aires, Argentina, December 1–23, 1936 (Washington, U.S. Government Printing Office, 1937) p. 227; The Avalon Project, http://​avalon​.law​.yale​.edu/​20th​_century/​ intam07​.asp (accessed 15 July 2020).

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Photo from Wiki.

Figure 2.3

President Franklin D. Roosevelt with President Vargas of Brazil

end the epoch of interventionism promoted by his cousin President Theodore Roosevelt and the 1904 Roosevelt Corollary to the 1823 Monroe Doctrine, which forbade European imperialism within the Americas. 2.4.1

The Roosevelt Corollary

The 1904 Roosevelt Corollary expressed a right of the United States to militarily intervene to defend US interests and collect debts, e.g. Nicaragua (1909–1933), Cuba (1906–1908), the Dominican Republic (1916–1924), and Haiti (1915 to 1934).16 It was issued in response to a 1902 seizure of the Venezuelan Navy and naval blockade of Venezuela by the United Kingdom, Germany, and Italy due to unpaid debts on account of a state of civil war in Venezuela. The Argentine Minister of Foreign Affairs Luis María Drago wrote a note to the United States declaring that no foreign power could use force to 16 Serge Ricard, “The Roosevelt Corollary” 36(1) Presidential Studies Quarterly (2006) pp. 17–26.

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collect a debt, as this would violate national sovereignty, and thereby be in violation of international law, hence setting forth the Drago Doctrine. As noted by Kevin Anderson, there were convoluted positions on what form of dispute resolution would provide justice: The Venezuelan economy was heavily dependent on foreign investment, which accounted for much of the country’s capital in railroad, mines, and utilities. Germans owned much of manufacturing, the French held a monopoly on cable communications, Belgians operated the waterworks, while Italians and Germans dominated merchandizing and agriculture. All of Venezuela’s shipping lines were foreign owned. Of a total population estimated at two million, approximately 20,000 German, British, Italian, and French foreign national were resident in Venezuela. Many Europeans were mistreated during the revolution that had brought Castro to power, with foreign nationals suffering the same consequences of civil war as did the Venezuelans. Ranchers and Farmers lost livestock and suffered property damage. Railroads were commandeered, ships seized, and crews imprisoned. Castro established a commission in 1901 to decide many of the resultant claims and insisted that they were within the scope of Venezuelan internal affairs. Castro’s arrangement was unsatisfactory to Europeans because the commission was comprised exclusively of Venezuelans, and Europeans distrusted Venezuelan justice. Another problem was the non-payment of interest on the 10 million dollar Venezuelan bond debt that was held by the British and refinanced by German bankers in 1896. Venezuela’s precarious condition was exacerbated by an uprising led by Manuel Matos.17

The European countries were dissatisfied with the Venezuelan claims commission, which they considered to have unfairly handled their claims, and thus requested that President Theodore Roosevelt act as arbitrator, however he recommended that they refer the case to the Permanent Court of Arbitration (PCA). This was the first referral by European countries to this institution, which was established as a consequence of the peace movement to provide an alternative to the deployment of armies to resolve conflicts. The PCA determined that the blockading states deserved preferential treatment in repayment. Anderson concludes the PCA decision actually imperiled peace: Although the Venezuelan settlement was proclaimed a triumph for the principle of arbitration and the Hague Court, it did not bring peace to Venezuela. Mixed commissions heard over a thousand cases and awarded to various claimants over eight million dollars, which equaled approximately fifteen percent of the total amount claimed. Castro carefully paid the first claims of the blockading powers but tried to delay execution of other provisions of the settlement and to reduce revenues from the La Guaira and Puerto Cabello customs houses by opening more facilities.

17 Kevin M. Anderson, “The Venezuelan Claims Controversy at the Hague, 1903” 57(3) The Historian (1995) pp. 525–536.

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Castro’s methods soon embroiled Venezuela in more disputes with the United States, France, and the Netherlands.18

President Theodore Roosevelt announced the Corollary and took forceful action resulting in serial occupations that continued for decades.19 Ironically, he was the first statesman to win the Nobel peace prize for having negotiated peace in the Russo-Japanese war in 1904–1905 through the Treaty of Portsmouth. The Nobel peace prize was controversial precisely due to his imperialistic policies.20 He sought to donate the money to the US Congress for the funding of a permanent Industrial Peace Committee that would address “fair dealings between classes of society,” however Congress never created the committee. He also supported the idea of a type of an international peace league with police powers. These concepts may be considered to be quite timely at the time of writing. Theodore Roosevelt also managed the historic Pious Fund dispute with Mexico by way of arbitration as recommended by the peace movement. This dispute involved the refusal of Mexico to share the interest of a Pious Fund established by Spanish donors to promote Catholicism within California with the Roman Catholic Archbishop of San Francisco and the Bishop of Monterey after the territory was ceded to the United States pursuant to the Treaty of Guadalupe Hidalgo (1848). In 1875, the case was brought before a Mixed Claims Commission that was evenly divided, resulting in the Umpire Arbitrator of the Commission rendering an award which called for 6 percent interest of half of the capital of the fund to be paid to the Bishops for 21 years. Mexico paid the award but refused to pay the interest, calling for use of domestic courts. Nevertheless, the case was sent by both states to the Permanent Court of Arbitration in the Hague, which held that the decision of the Arbitrator was res judicata and recognized Mexico’s obligation to make full payment of the interest in perpetuity (the PCA specified that Mexico should pay the accrued debt in gold, but that future payments could be made in silver).21 This precedent sought to strengthen the validity of arbitration as an effective peaceful dispute resolution mechanism. However, there remain divisive opinions within the region, as evidenced by Brazil’s refusal to ratify the International Centre

Ibid. Ibid. 20 “Theodore Roosevelt: Fact”, The Nobel Prize, https://​www​.nobelprize​.org/​ prizes/​peace/​1906/​roosevelt/​facts/​ (accessed 15 July 2020). 21 “The Pious Fund Case: United States v. Mexico”, IX Reports of International Arbitral Awards (United Nations, 14 October 1902) pp. 1–14, https://​legal​.un​.org/​riaa/​ cases/​vol​_IX/​1​-14​.pdf (accessed 15 July 2020) and W.L. Penfield, “The ‘Pious Fund’ Arbitration” 175(553) The North American Review (1902) pp. 835–843. 18 19

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for Settlement of Investment Disputes Convention (1966) and the withdrawal of Bolivia, Ecuador, and Venezuela. 2.4.2

The Declaration of Principles for Inter-American Solidarity and Cooperation

President Franklin D. Roosevelt believed that it was important to prevent European militarism from reaching the Americas but rejected his cousin’s corollary as counterproductive. He called for the establishment of an Inter-American conference in Buenos Aires, Argentina to articulate a strategy by which another conflict would never occur again on the continent. The aim was to have the Latin American states ratify all peace instruments and pursue pacific instruments. President Roosevelt wrote a letter to Argentina’s President General Agustin P. Justo in which he explained that the Inter-American Conference was intended to provide a forum to determine how to maintain peace among the American Republics through the vehicle of law: be it by speedy ratification of all the Inter-American instruments, modifying existing instruments or creating new peace instruments. There was also the possibility of creating new institutions of peace to prevent war. President Roosevelt set forth a vision for a permanent peace for the region: The conformance given by the governments of Bolivia and Paraguay to the peace protocols recently negotiated in Buenos Aires, have given the government and people of the United States the most profound satisfaction and given that there is hope that that there is the possibility of a permanent and equitable solution to this tragic controversy that has been maintained during such a long period that has caused such a large sacrifice of so many lives and imposed such crushing costs on the citizens of the two belligerent countries. I am of the firm conviction that the time has arrived that the American republics ... take advantage of this opportune moment to consider their joint responsibility and common necessity to reduce the probability of the continuation of hostilities and serve the cause of permanent peace in the Western continent. The conference will seek to determine the best way to protect the maintenance of peace in the American Republics.22

Present Justo responded by expressing his belief that the moment had arrived for the American Republics, considering their joint responsibility, solidarity, and finances, to consolidate peace within the region. He agreed upon the benefit of an Inter-American Conference: “Given that we are in an obscure hour of the world, full of uncertainty for the instability and for the effective reign of international morality.”23 He declared that his government was

Saavedra Lamas, supra note 14 at p. 13. Ibid.

22 23

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honored to host pursuant to its tradition of the love of justice, respect for law, and fidelity to international cooperation. He recognized the need to consolidate regional peace. In his opinion, this specifically required the end of commercial and economic dominion. During the conference, the Argentine Chancery discussed the European problem – Italy’s occupation of Ethiopia, as well as the possibility of coordinating with the League of Nations, the 1928 Kellogg Briand Pact, which prohibited the use of force to resolve disputes, and the Anti-War Pact signed in Rio on October 10, 1922. The delegates considered whether to include neutrality, prohibition of arms transfers, closure of ports, and interruptions of communications. They decided to consolidate peace in the Americas by preventing war through resolving economic and commercial problems that make relations within the continent difficult. Argentina, Chile, and Peru supported exhaustion of domestic remedies before seeking arbitration in the case of denial of justice. However, the United States did not want any limitations on arbitration. The rapporteur suggested that the parties agree without reservation not to use armed force or other coercive measures or diplomatic interventions to resolve public or contractual debts or financial claims. They cited the Drago doctrine, which determined that international law did not permit military intervention to collect debts.24 President Roosevelt made a speech calling for adherence to pacific dispute resolution: There is no conflict in the Americas that cannot be resolved by pacific means and all are interested in demanding that such situations be settled by way of accords and without the shedding of blood. The American nations cannot provide a better service to civilization than by maintaining internal and international peace, liberating themselves for always of conflict.25

He reiterated the principle of the interdependency of states, that no state can survive isolation. He made a second speech, noting that Dr Saavedra Lamas had received the Nobel Peace Prize. He expressed concern for the tremendous economic crisis that he considered to be without equal in history, and that within the Inter-American region there had been a war between two sister republics. Nevertheless, he opined that this Conference would give birth to

24 T. Woolsey, “Drago and the Drago Doctrine” 15(4) American Journal of International Law (1921) pp. 558–559. 25 Saavedra Lamas, supra note 14 at pp. 122–124.

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hope for the future of the Americas, as well as mutual confidence in American democracies: The dissipation of shadow of fear, thanks to our common efforts, all the nations within the hemisphere are at peace with their neighbors. This is not a conference that seeks to form alliances, divide war booty, distribute nations, or treat people as if they were pieces in a game of fate. Our aim is to assure the continuation of the blessing of peace. The men, women, and children of the Americas know what war is. It is more than the clash of armies, it includes the destruction of cities and countryside, misery, fear of a messed-up society and disappearance of constitutional governance. I am firmly convinced that regular people from all parts of the civilized world want peoples to live in peace with one another. Nevertheless, the leaders and governments pursue war. If human genius that invented the arms of death cannot discover methods to preserve peace, there is no doubt that our civilization is crossing a fatal moment ... We know by experience that peace cannot be achieved only by asking for it, peace, like other precious goods, can only be obtained by strong efforts. You who are gathered here today carry the hopes of millions of others in other less fortunate lands. On the other side of the ocean we see continents in pieces on account of old recriminations and new fanaticisms. Others clamor for justice and change of inequality by force of arms and not by reason and pacific justice. Others affirm that new markets can only be attained by conquest. We read that treaties among nations are being ignored. We also know that great quantities of arms are accumulated by all sides and millions of men and women work in factories making arms. Nevertheless, it is logical that we reach the conclusion that such work is fictitious, it does not raise permanent structures nor produces items for consumption to maintain a stable prosperity. We know that the nations responsible for this foolishness will see a day in which they will have to use the destructive arms against their neighbors or a moment in which its false economy will fall like a house of cards. In both cases, even though the Americans are not implicated within a war, we also suffer. The craziness of a great war in other parts of the world will affect us and threaten our wellbeing in a thousand ways. And the economic ruin of any nation or nations, endangers our prosperity. Can we, the Republics of the New World, help the old continent avoid imminent catastrophe? To achieve this, the best way is to strengthen democratic and constitutional procedures of government, in order to achieve harmony, unity, and efficiency, while preserving individual liberties of our citizens. By achieving this our peoples, in contrast to what happens to other peoples living under other forms of government, can insist on their intention to live in peace. That way the democratic form of government will be justified. In this new determination to live in peace, the peoples of the Americas, we are firmly united in our final decision that if other peoples, impulse by the madness of war or the desire to expand territories, try to commit acts of aggression against us, they will find the republics of this hemisphere willing to consult for security and well-being. We have all enjoyed the glory of independence. Let’s go in the direction of interdependence. In second place, in addition to perfecting the instruments of peace, we can fight with more energy than in the past, to avoid the creation of conditions which lead to war. The lack of social justice or political justice within the borders of any nation is always a cause of anxiety. By way of the democratic procedures, we can achieve within the Americas the highest possible standard of living for all of us. The men

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and women who enjoy political liberty who are willing to work and find jobs, who can rely on the necessary recourses to maintain their families and educate their children, who are satisfied with their luck in life and in friendship with their neighbors will defend themselves but never permit taking arms in conquest.26

Roosevelt took early note of the military industrial complex, later articulated by President Eisenhower, and also explained the importance of recognizing peace as a regional aim: Governments claim to need war as a political instrument and sacrifice democratic ideals in pursuit of the accumulation of armaments. It is not a mere coincidence, that given these suicidal politics and the suffering accompanying them, that people desperately believe that peace costs more than war. Peace comes from the spirit and should be based in faith. By seeking peace, perhaps it would be better to begin by proclaiming faith in the Americas, the faith in liberty and its realization that has proved to be a force incapable of being overthrown by attack. This faith is born of a common hope and aim transmitted by our forefathers with one common end: liberty and security of man, the foundation of our peace.27

Roosevelt set out faith in democracy as offering the hope of peace, and recognition of freedom and security as the basis of peace, and the need to have faith in peace itself in another speech at the same conference: In the first place, it is our duty to avoid at all costs a future war amongst ourselves. In order to achieve this, the best is to strengthen the democratic and constitutional governmental procedures in order to harmonize with the actual necessity of unity and efficiency and at the same time preserve individual liberties of our citizens. By achieving this our peoples, in contrast to what happens to other peoples living other forms of government, can insist and will insist on their intention to live in peace. That is how the democratic form of government will be justified around the world ... In second place, in addition to perfecting instruments of peace, we can fight with more verve than in the past to avoid creating conditions that lead to war. The lack of social or political justice within the borders of any nation is always a cause of anxiety. By way of the democratic procedures we can manage to achieve within the Americas the highest standard of living possible for us. Those men and women who enjoy the benefits of political liberty who are willing to work and find an occupation, who can count on the necessary recourses to maintain their families and educate their children, who are satisfied with their luck in life and in their friendship with their neighbours, will defend themselves with all their strength, but will never agree to take up arms in a war of conquest ... Peace comes from the spirit and should base itself in faith. By seeking peace, perhaps it would be better to begin by highly

Ibid at p. 176. Ibid.

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proclaiming faith in the Americas, faith in liberty and its realization that has proven to be in half of the world, an inexpungable force against all attack.28 Three centuries of history have geminated the seeds of life in our countries, the fourth century witnessed them rise liberty and equality, taking with them a common system of constitutional government, the fifth century offers us a common ground of understanding and mutual help. At last our hemisphere has reached adulthood ... To conclude, to express our faith in the Western Hemisphere we will affirm: (1) That we will maintain and defend the democratic form of constitutional representative government. (2) That by way of this form of government we can offer a better distribution of culture, education, ideas and free expression of thought. (3) That by this way we can guarantee better security of life for our citizens and more equal opportunity to reach prosperity. (4) That by this way we can foment commerce and scientific and artistic exchange between nations. (5) That we may permit avoiding rivalries in arms, avoid recriminations, and promote good will and true justice. (6) That by this way of government we can offer hope for peace and a life of greater abundance for the people of the world.29

Of note, between December 1 and 23, 1938 Mexico proposed a Peace Code for the Pan American Union, however this was not supported by the US delegation due to disagreement on the concept of an “aggressor” and characterization of the use of sanctions “as creating greater evils than they would correct.”30 Regarding the articulation of an “aggressor,” Mexico proposed expressing American solidarity against “any attempt on the part of a state against the integrity or the inviolability of the territory, the sovereignty, or the independence of an American State.” However, the characterization of “aggressor” was viewed by the United States as aggravating international relations instead of pursuing appeasement.31 These issues have remained persistently problematic throughout time, most recently evidenced by the failed attempt of US ex-Green Berets to capture President Maduro in 2020 and the application of sanctions by the US government and the European Union against the Maduro regime that were alleged to exacerbate human suffering.32 The Mexican Peace Ibid at p. 181. Ibid at p. 182. 30 The Secretary of State to the American Delegation to the Eighth International Conference of American States, Foreign Relations of the United States Diplomatic Papers, V The American Republics (US State Department, Office of the Historian 1938), https://​history​.state​.gov/​historicaldocuments/​frus1938v05/​d55 (accessed 15 July 2020). 31 Charles G. Fenwick, “The Ninth International Conference of American States” 42 American Journal of International Law 553 (1948). 32 Michael Fox, “The Human Cost of the US Sanctions on Venezuela”, DW (1 October 2019), https://​www​.dw​.com/​en/​the​-human​-cost​-of​-the​-us​-sanctions​-on​ 28 29

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Code proposal also called for obligatory arbitration of political and legal disputes and the establishment of an Inter-American Court of Justice, which eventually ceded to referral of cases to the International Court of Justice in the Hague according to the American Treaty on Pacific Settlement (1948).33 The Pan American Union organized several Inter-American conferences, including one in Colombia that created the Organization of American States in 1948. The Pan American Union became the Secretariat of the Organization of American States. The final text of the 1936 Declaration of Principles for Inter-American Solidarity and Cooperation has a preamble which declares the notion of a regional commitment to democracy, peace, justice, development, and solidarity:34 The Governments of the American Republics, having considered: That they have a common likeness in their democratic form of government and their common Ideals of peace and justice, manifested in the several Treaties and Conventions which they have signed for the purpose of constituting a purely American system tending towards the preservation of peace, the proscription of war, the harmonious development of their commerce and of their cultural aspirations in the various fields of political, economic, social, scientific and artistic activities; That the existence of continental interests obliges them to maintain solidarity of principles as the basis of the life of the relations of each to every other American nation; That Pan Americanism, as a principle of American International Law, by which is understood a moral union of all of the American Republics in defence of their common interests based upon the most perfect equality and reciprocal respect for their rights of autonomy, independence and free development, requires the proclamation of principles of American International Law; and That it is necessary to consecrate the principle of American solidarity in all non-continental conflicts, especially since those limited to the American Continent should find a peaceful solution by the means established by the Treaties and Conventions now in force or in the instruments hereafter to be executed.

The operative paragraphs recognize the primacy of sovereignty, democracy, the prohibition of territorial acquisition through use of force, the principle of -venezuela/​a-​50647399 (accessed 15 July 2020) and “Venezuela Orders the Arrest for Former Green Beret”, The Guardian (8 May 2020), https://​www​.theguardian​.com/​ world/​2020/​may/​08/​venezuela​-jordan​-goudreau​-nicolas​-maduro​-attack (accessed 15 July 2020). 33 Edwin Borchard, “The ‘Committee of Experts’ at the Lima Conference” 33(2) American Journal of International Law (1939) pp. 269–282. 34 Declaration of Principles of Inter-American Solidarity and Cooperation, Buenos Aires, December 21, 1936. U.S., Department of State, Publication 1983, Peace and War: United States Foreign Policy, 1931–1941 (Washington, D.C.: U.S., Government Printing Office 1943) pp.  351–352, https://​www​.mtholyoke​.edu/​acad/​intrel/​interwar/​ interamerican​.htm (accessed 15 July 2020).

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non-intervention, prohibition of gunboat diplomacy to collect debts, and use of pacific settlement of disputes: 1. That the American Nations, true to their republican institutions, proclaim their absolute juridical liberty, their unqualified respect for their respective sovereignties and the existence of a common democracy throughout America; 2. That every act susceptible of disturbing the peace of America affects each and every one of them, and justifies the initiation of the procedure of consultation provided for in the Convention for the Maintenance, Preservation and Reestablishment of Peace, signed at this Conference; and 3. That the following principles are accepted by the American community of Nations: (a) Proscription of territorial conquest and that, in consequence, no acquisition made through violence shall be recognized; (b) Intervention by one State in the internal or external affairs of another State is condemned; (c) Forcible collection of pecuniary debts is illegal; and (d) Any difference or dispute between the American nations, whatever its nature or origin, shall be settled by the methods of conciliation, or unrestricted arbitration, or through operation of international justice.

This instrument provided a foundation for the regional architecture that followed to reinforce the prohibition of the use of force within the region and creation of mechanisms for peaceful dispute resolution. 2.4.3

The Declaration of Lima

The Eighth International Conference of American States, December 24, 1938 produced the Declaration of Lima, which confirmed the importance of maintaining peaceful dialogue in order to maintain regional peace:35 Considering: That the peoples of America have achieved spiritual unity through the similarity of their republican institutions, their unshakable will for peace, their profound sentiment of humanity and tolerance, and through their absolute adherence to the principles of international law, of the equal sovereignty of states and of individual liberty without religious or racial prejudices; That on the basis of such principles and will, they seek and defend the peace of the continent and work together in the cause of universal concord; That respect for the personality, sovereignty, and independence of each American state, constitutes the essence of international order sustained by continental solidarity, which historically has found expression in declarations of various states, or in agreements which were applied, and sustained by new declarations and by treaties in force; that the Inter-American Conference for the Maintenance of Peace, held at Buenos Aires, approved on December 21, 1936, the declaration of the principles of inter-American solidarity and coopera-

U.S., Department of State, supra note 34 at pp. 438–439.

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tion, and approved, on December 23, 1936, the protocol of non-intervention; the Governments of the American States. Declare: First. That they reaffirm their continental solidarity and their purpose to collaborate in the maintenance of the principles upon which the said solidarity is based; Second. That faithful to the above-mentioned principles and to their absolute sovereignty, they reaffirm their decision to maintain them and to defend against all foreign intervention or activity that may threaten them; Third. And in case the peace, security or territorial integrity of any American republic is thus threatened by acts of any nature that may impair them, they proclaim their common concern and their determination to make effective their solidarity, coordinating their respective sovereign wills by means of the procedure of consultation, established by conventions in force and by declarations of the inter-American conferences, using the measures which in each case the circumstances may make advisable. It is understood that the Governments of the American Republics will act independently in their individual capacity, recognizing fully their juridical equality as sovereign states; Fourth. That in order to facilitate the consultations established in this and other American peace instruments, the Ministers for Foreign Affairs of the American Republics, when deemed desirable and at the initiative of any one of them, will meet in their several capitals by rotation and without protocol character. Each government may, under special circumstances or for special reasons, designate a representative as a substitute for its Minister for Foreign Affairs.

These declarations were followed up by treaties which sought to solidify the commitments through binding instruments.

2.5

THE INTER-AMERICAN TREATY FOR RECIPROCAL ASSISTANCE (RIO TREATY) AND THE AMERICAN TREATY ON PACIFIC SETTLEMENT (PACT OF BOGOTÁ)

The Inter-American Treaty for Reciprocal Assistance was signed in 1947 in Rio de Janeiro, in response to concerns about Axis influence in the region. It declared a commitment to “consolidating and strengthening their relations of friendship and good neighborliness” and “to prevent and repel threats and acts of aggression against any of the countries of the Americas.” The preamble contains a statement on the link between justice, democracy, human rights, and peace: That the American regional community affirms as a manifest truth that juridical organization is a necessary prerequisite of security and peace, and that peace is founded on justice and moral order and, consequently, on the international recognition and protection of human rights and freedoms, on the indispensable well-being of the people, and on the effectiveness of democracy for the international realization of justice and security.

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The operative paragraphs declare respect for limitations on the use of force set in the UN Charter, the applicability of individual and collective self-defense in the event of an attack on one American state, and agreement to pursue pacific settlement of disputes at the regional level before resorting to UN institutions. The OAS has facilitated consultation meetings by the Ministers of Foreign Affairs within the region pursuant to the Inter-American Treaty for Reciprocal Assistance consistently since 1939, addressing external threats to peace ranging from war in Europe, Japanese attack, “the risk of international communist aggression”, the Malvinas War, and terrorism; as well as intra-regional threats involving intervention, aggression, coercive acts, and armed/border conflicts and violation of air space.36 However, the last meeting was in 2008, addressing Colombia’s 2008 raid in Ecuador, which targeted the second in command of the FARC. Some of these consultations remain open to this day as the underlying conflict was not resolved within the consultation. The Rio Treaty has been weakened by the withdrawal of Mexico, Bolivia, Ecuador, Cuba, Nicaragua, and Venezuela, in part responding to US support for the United Kingdom instead of Argentina in the 1982 Falklands/Malvinas War and in part due to concern about the US call for contributing troops in the 2003 Iraq War. As Thomas Legler explains, the Rio Treaty mechanism was unable to restore peace to Venezuela during the humanitarian crisis of 2019: In September 2019, the signatories of the Rio Treaty held a Meeting of Consultation of Ministers of Foreign Affairs on the fringes of the annual United Nations General Assembly in New York City to address the situation in Venezuela. Sixteen of the nineteen ministers present agreed to increase their cooperation against officials of the government of Nicolás Maduro accused of corruption, human rights abuses, and organized crime, including a new network of financial intelligence, asset freezes, and criminal prosecution. In December 2019, the same countries adopted targeted travel and asset sanctions against an extensive list of Venezuelan authorities (OAS 2019). Yet none of these measures adopted by regional actors have had any discernible impact in terms of moving Venezuela closer to a peaceful, negotiated solution or the restoration of its democratic constitutional order.37

36 See Organization of American States, Meetings of Consultation of Ministers of Foreign Affairs, http://​www​.oas​.org/​CONSEJO/​MEETINGS​%20OF​ %20CONSULTATION/​minutes​.asp (accessed 12 September 2020). On Colombia’s raid in Ecuador and the OAS meetings see Cecilia Bailliet, “The ‘Unrule’ of Law: Unintended Consequences of Applying the Responsibility to Prevent to Counterterrorism, A Case Study of Colombia’s Raid in Ecuador” in Cecilia Bailliet (ed.), Security: A Multidisciplinary Normative Approach (Brill 2009). 37 Thomas Legler, “A Story Within a Story: Venezuela’s Crisis, Regional Actors, and Western Hemispheric Order Upheaval” 109 European Review of Latin American and Caribbean Studies (2020) pp. 135–156.

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Although the political consultations have not always been successful, it may be suggested that the legal mechanisms for dispute resolutions may be more effective but also present challenges. The American Treaty on Pacific Settlement (Pact of Bogotá), April 30, 1948, sets forth an obligation to refrain from the threat or use of force, or other means of coercion for the settlement of controversies.38 Parties are to utilize pacific procedures at all times. It establishes a sequence in which regional pacific procedures are utilized before referring them to the UN Security Council.39 The Treaty contains a requirement to exhaust domestic remedies when matters concern domestic jurisdiction; if there is doubt then Parties are to request the International Court of Justice (ICJ) to determine the case.40 The Pact of Bogotá contains a type of Calvo Clause in which Parties agree not to make diplomatic representations to protect their nationals or refer the case to an international court when the nationals have the means to place the case in the domestic court.41 It recognizes the right of individual and collective self-defense.42 It supports mediation, good offices, investigation, conciliation, and arbitration. It also sets forth that the Parties recognize the compulsory jurisdiction of the ICJ of all disputes concerning: (a) (b) (c) (d)

The interpretation of a treaty; Any question of international law; The existence of any fact which, if established, would constitute the breach of an international obligation; The nature or extent of the reparation to be made for the breach of an international obligation.43

Indeed, the ICJ is, at the time of writing, addressing various territorial disputes within the region (albeit some have been discontinued due to state preference for negotiation instead of adjudication), including: the Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Dispute over the Status and Use of the Waters of the Silala

40 41 42 43 38 39

Article I. Article II. Article V. Article VII. Article VIII. Article XXXI.

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(Chile v. Bolivia), and Guatemala’s Territorial, Insular and Maritime Claim (Guatemala/Belize).44 These cases may be regarded as strategic value cases that impact foreign investment in oil and natural gas exploration in the sea, as well as privatization of water rights.45 In 2018, two vessels conducting seismic exploration on behalf of the ExxonMobil corporation in the Stabroek block in the disputed maritime territory between Guyana and Venezuela were intercepted by the Venezuelan Navy.46 Guyana filed a complaint with the United Nations, and the UN Secretary-General referred the case to the ICJ. Venezuela refused to recognize jurisdiction of the Court or participate in proceedings, declaring that it preferred to resolve the dispute via negotiations. It is estimated that

44 The ICJ has addressed several territorial disputes in the region: Colombia v. Peru (Asylum) 1950, Haya de la Torre Colombia v. Peru (1951); Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) 1958; military and paramilitary activities in and against Nicaragua, Nicaragua v. United States in 1991 (in which the ICJ held that the US had violated the prohibition of the use of force in the UN Charter, as well as the customary principles of non-intervention and respect for sovereignty); border and transborder actions, Nicaragua v. Costa Rica in 1987 (discontinued due to Esquipulas II Peace Agreement); border and transborder actions, Honduras v. Nicaragua in 1992 (discontinued due to solution found via negotiation); land, frontier, and maritime dispute, El Salvador v. Honduras (Nicaragua intervening) in 1992, the ICJ held that the three joint sovereigns were entitled, outside the closing line, to a territorial sea, continental shelf and exclusive economic zone, but must proceed to a division by mutual agreement; territorial and maritime dispute in the Caribbean Sea between Honduras and Nicaragua in 2007, navigational rights between Costa Rica and Nicaragua in 2009, concern regarding pollution from the construction of pulp mills in shared watercourses, Argentina and Uruguay in 2010, territorial and maritime dispute between Colombia and Nicaragua in 2012 and 2018; aerial herbicide spraying, Ecuador v. Colombia in 2013; maritime dispute between Chile and Peru in 2014; transboundary harm due to dredging and the construction of a canal, Costa Rica and Nicaragua in 2015; construction of a road along the San Juan River, Costa Rica and Nicaragua 2015; dispute regarding the continental shelf shared between Colombia and Nicaragua in 2016; land boundary in the northern part of Isla Portillos, Nicaragua v. Costa Rica in 2018; and the dispute between Bolivia and Chile on the obligation to negotiate access to the Pacific Ocean in 2018. 45 Roberta Greco, “The Silala Dispute: Between International Water Law and the Right to Water”, Questions of International Law (31 May 2007), http://​www​.qil​-qdi​ .org/​silala​-dispute​-international​-water​-law​-human​-right​-water​-forthcoming/​ (accessed 13 January 2021). 46 “Exxon Mobil to Dominate Offshore Guyana Spending”, Offshore (14 February 2020), ExxonMobil to dominate deepwater Stabroek block offshore Guyana spending | Offshore (offshore-mag.com) (accessed 13 January 2021); Gareth Chetwynd, Opinion: Venezuela Ramps Up Pressure Over Guyana after ICJ Ruling”, UPSTREAM (11 January 2021), OPINION: Venezuela ramps up pressure over Guyana after ICJ ruling | Upstream Online (accessed 13 January 2021).

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foreign investment in the Stabroek block will total 53 billion US dollars. There is a high risk of violence, which underscores the importance of recourse to a peaceful settlement of the dispute.47 The rejection by Venezuela of the ICJ indicates the necessity of pursuing further good faith negotiations. In 2012, Colombia actually denounced the Pact of Bogotá after the ICJ ruled that although Colombia retained sovereignty over the islands of Albuquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla, Nicaragua retained sovereignty over 30,000 square miles of maritime territory which contains oil and natural gas reserves.48 This dispute remains ongoing within the ICJ, as well as negotiations; however there has emerged a type of “naval arms race” within the region which is problematic. President Ortega stated “Nicaragua wants peace ... We have no expansionist aims …we only want what the court at The Hague granted us in its ruling.”49 In contrast, President Santos rejected the jurisdiction of the ICJ in this matter, opining that “[t]he borders between nations cannot be in the hands of a court of law … [t]hey must be drawn by agreement between the countries involved.”50 In 2014, the Santos Government filed a case with the Constitutional Court of Colombia that held that the ICJ decision could not be implemented without a treaty between Colombia and Nicaragua, returning the matter to diplomatic negotiations.51 Similarly, Belize and Guatemala have had military engagement at their borders on account of competing interests in maritime oil exploration, leading to mediation by the OAS as well as recourse to the ICJ.52 The high stakes involved in these cases demonstrate the fragility of institutional mechanisms of peaceful settlement of disputes, which are subject to legitimacy attacks by the parties to the conflict and other powerful stakeholders. In spite of certain cases of resistance to the ICJ, in favor of political 47 See David R. Mares, Latin America and the Illusion of Peace (Routledge 2018). He provides an overview of the ongoing territorial disputes and the militarization of borders. 48 The Pact of Bogotá was also denounced by El Salvador in 1973. 49 Santiago Wills, “Colombia will challenge Maritime Border with Nicaragua”, ABC News (10 September 2013), https://​abcnews​.go​.com/​ABC​_Univision/​colombia​ -challenge​-maritime​-border​-nicaragua/​story​?id​=​20217370 (accessed 12 January 2021). 50 “Colombia withdraws from ICJ over Nicaragua v. Colombia Ruling”, Arbitration Notes (12 December 2013), hsfnotes.com (accessed 13 January 2021). 51 Steven Arrigg Koh, “Constitutional Court of Colombia finds that Implementation of ICJ Decision requires Treaty”, International Law in Brief (9 May 2014), https://​ www​.asil​.org/​blogs/​constitutional​-court​-colombia​-finds​-implementation​-icj​-decision​ -requires​-treaty​-may​-2​-2014 (accessed 13 January 2021). 52 A. Perez, C. Chin-Ta and F. Afero, “Belize-Guatemala Territorial Dispute and its Implications for Conservation”, Tropical Conservation Science, March 2009, pp. 11–24.

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negotiation, the Inter-American instruments formed a type of regional peace law which became consolidated within the OAS Charter.

2.6

THE ORGANIZATION OF AMERICAN STATES – AN ORDER OF PEACE AND JUSTICE

The OAS is the oldest regional organization in the world, actually established to “achieve an order of peace and justice.”53 In 1948, during the Ninth Session of the International American Conference, in which the OAS was created, the representative of Argentina, Mr. Brugmalia, explained the vision for the creation of the OAS, which had peace as an objective:54 We are within a historic assembly within these deliberations, that is realizing transcendental times for America. We are in the deliberative stage of peace, affirming American International Law, with the objective of safeguarding us against war, secure culture, end all suffering and conquer all problems that, precipitated in a flood, could signal the breakage of positive construction among us ... Argentina believes in universal pacification, that the economic cooperation and the spiritual contribution of America, are the social and political bases of the continental philosophy.

The representative from Mexico, Mr. Torres Bonet, confirmed the aim of peace as a means to avoid the violence that befell Europe at the time:55 Peace is indivisible. Nothing that we would do to divide it would benefit any of our peoples. America should be the bridge of world hope and conciliation. The pillars of such category are not hate and intolerance, rather understanding, truth and independence. Let us strengthen democracy without leaving democracy, acting within it, bringing to life its institutions within liberty, and proving its rules by example. Throughout many years we have repeated that the law is our force and that Nazi Fascism was defeated, even at the hour of its maximum triumphs, because among the many arms that it had, it lacked the most splendid one: faith in the universality of civilization and in civilization for liberty. That faith forms the inviolable shield of our America. Let’s maintain it without a stain.

2.6.1

The OAS Charter

The OAS Charter Article 1 expresses the aim of the organization for establishing conditions for peace within the region. It lists the strengthening of the peace and security of the continent as an essential purpose of the OAS, as well

OAS Charter, Article 1. CB-67 /SP-11, Ninth International American Conference (30 March 1948). 55 CB-54/SP-7, Ninth International American Conference (30 March 1948). 53 54

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as the promotion and consolidation of representative democracy, cooperation to promote development, the eradication of extreme poverty, and the limitation of conventional weapons, thereby linking several umbrella terms.56 It confirms the negative peace principle of condemnation of wars of aggression.57 Hence, it pursues realistic peace as it prohibits direct and indirect intervention, interference, economic or political coercion, occupation, and use of force, with the exception of self-defense.58 In Article 3(j) it sets forth the principles that “social justice and social security are bases of lasting peace” and Article 3(n) recognizes the principle that the education of peoples should be directed towards peace. It sets forth a detailed binding framework for the pacific settlement of disputes in Chapter V, thereby reiterating the prior regional normative affirmations of this principle:59 Article 24 International disputes between Member States shall be submitted to the peaceful procedures set forth in this Charter. This provision shall not be interpreted as an impairment of the rights and obligations of the Member States under Articles 34 and 35 of the Charter of the United Nations. Article 25 The following are peaceful procedures: direct negotiation, good offices, mediation, investigation and conciliation, judicial settlement, arbitration, and those which the parties to the dispute may especially agree upon at any time. Article 26 In the event that a dispute arises between two or more American States which, in the opinion of one of them, cannot be settled through the usual diplomatic channels, the parties shall agree on some other peaceful procedure that will enable them to reach a solution. Article 27 A special treaty will establish adequate means for the settlement of disputes and will determine pertinent procedures for each peaceful means such that no dispute between American States may remain without definitive settlement within a reasonable period of time.

The OAS has a Peace Fund which engages in inter-state dispute resolution, mostly addressing territorial conflicts (Belize and Guatemala, Honduras and Nicaragua, Honduras and El Salvador, Costa Rica and Nicaragua, and

56 OAS Charter Article 2. See Heraldo Muñoz and Mary D’Leon, “The Right to Democracy in the Americas” 40 (1) Journal of Interamerican Studies and World Affairs (1998) pp. 1–18. 57 OAS Charter Article 3. 58 OAS Charter Articles 19–22, see also Article 2. 59 OAS Charter Articles 24–27, see also Articles 2 and 3.

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Colombia and Ecuador) as well as conflict prevention and peacebuilding initiatives in Guatemala, Honduras, Ecuador, El Salvador, Nicaragua, Suriname, Haiti, Venezuela, Colombia, the Dominican Republic, and Belize.60 Monica Herz describes the diminishment of inter-state violence within the region: During the second half of the twentieth century and particularly after the mid-1980s the region has been characterised by very few instances of inter-state wars. In 1969, war broke out over territorial and migration issues between El Salvador and Honduras; in 1982 between Argentina and the United Kingdom over the Malvinas/ Falkland Islands; and in 1998 Peru and Ecuador finally settled their boundary dispute after a conflict that left nearly a thousand dead combatants in 1995. Relations between Brazil and Argentina and between Argentina and Chile improved dramatically after the mid-1980s, and in 1999 Chile and Peru settled their border dispute. The US was involved in several armed conflicts and military interventions, particularly in Central America; but apart from the US intervention in Haiti in 1994, it has refrained from military intervention since 1990.61

The remaining inter-state territorial disputes and rise of crime, illiberal populism, and corruption indicate that the OAS will have to continue to address challenges to both negative and positive peace within the region. The OAS Charter explicitly recognizes that social justice and social security are the bases of lasting peace, thereby incorporating aspects of positive peace, and it is continued societal reclamation for this aspect of peace that remains challenging.62 The OAS Charter observes that respect for treaties is conducive to peaceful relations among states, paying homage to the tradition of peace through law and the principle of pacta sunt servanda.63 Additionally,

60 The OAS Peace Fund has an Inter-American Peace Forum: http://​www​.oas​ .org/​sap/​peacefund/​(accessed 17 July 2020). See Yadira Soto, The Role of the Organization of American States in Conflict Affected States in the Americas (IDEA 2016), https://​www​.idea​.int/​sites/​default/​files/​publications/​the​-role​-of​-the​-organization​ -of​-american​-states​-in​-conflict​-affected​-states​-in​-the​-americas​.pdf (accessed 17 July 2020). Venezuela withdrew from the OAS in 2017, rendering peacemaking efforts difficult. 61 Monica Herz, “Does the Organisation of American States Matter?” Crisis States Working Papers Series No. 2 (2008) p. 9. She states in footnotes 5 and and 6: “Brazil and Argentina solved their disputes over water rights and nuclear competition. Chile and Argentina signed the 1984 Treaty of Peace and Friendship that put an end to the Beagle Channel feud and called for use of pacific dispute resolution mechanisms. Between the mid-nineteenth century and 1989, US invaded Cuba, the Dominican Republic, El Salvador, Grenada, Haiti, México, Nicaragua, Honduras, Panama and Puerto Rico.” 62 OAS Charter Article 3(j). 63 OAS Charter Article 18.

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it recognizes the cultural element of peace as it declares that the education of peoples should be directed towards justice, freedom, and peace.64 Hence, the OAS Charter is a holistic embodiment of peace in all of its dimensions as a foundation for the region, identifying substantive, procedural, internal, and external qualities. 2.6.2

Other Instruments

The Protocol of San Salvador (1999) also addresses a culture of peace through education in Article 13(2):65 Right to Education 1. Everyone has the right to education. 2. The States Parties to this Protocol agree that education should be directed towards the full development of the human personality and human dignity and should strengthen respect for human rights, ideological pluralism, fundamental freedoms, justice and peace. They further agree that education ought to enable everyone to participate effectively in a democratic and pluralistic society and achieve a decent existence and should foster understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups and promote activities for the maintenance of peace.

The Inter-American Democratic Charter’s preamble refers to the recognition of peace as related to democracy and development in the OAS Charter and the Declaration of Managua for the Promotion of Democracy and Development.66 This is also affirmed within the Inter-American Convention Against Corruption (1996): CONSIDERING that representative democracy, an essential condition for stability, peace and development of the region, requires, by its nature, the combating of every

OAS Charter Article 3(n). Organization of American States (OAS), Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) (16 November 1999), https://​ www​ .refworld​ .org/​ docid/​ 3ae6b3b90​ .html  (accessed 25 July 2020). Ratified by Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay. 66 Inter-American Democratic Charter (11 September 2001). In the Declaration of Managua [AG/DEC. 4 (XXIII-O/93)], the member states expressed their firm belief that democracy, peace, and development are inseparable and indivisible parts of a renewed and integral vision of solidarity in the Americas; and that the ability of the Organization to help preserve and strengthen democratic structures in the region will depend on the implementation of a strategy based on the interdependence and complementarity of those values. 64 65

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form of corruption in the performance of public functions, as well as acts of corruption specifically related to such performance.

It is notable that the UN Declaration on the Right to Peace (2016), Article 5 calls for the Declaration to be interpreted in accordance with universal and regional instruments ratified by states, hence Latin American states would be expected to pursue peace policies that would be in conformance with the American Convention on Human Rights and the American Declaration of Human Rights, as well as the OAS Charter and additional relevant regional instruments. Hence, the architecture of the entire OAS system is firmly grounded in the pursuit of peace in various normative iterations ranging from negative peace to positive peace and a culture of peace.

2.7

SUB-REGIONAL ORGANIZATIONS

The sub-regional organizations have contributed to recognizing peace as a regional value, norm, and concept. These entities largely address negative peace, i.e. the absence of war or armed conflict, but at times have engaged to promote positive peace through support for education. In 1999, MERCOSUR (the Southern Common Market) declared itself, Bolivia, and Chile to be a zone of peace, free of nuclear weapons, pursuing mechanisms of consultation and cooperation.67 It noted that peace is central to integration and the preamble of the declaration sets forth that “peace is the main desire of our peoples, the basis for the development of humanity, and an essential condition for the present and future existence of MERCOSUR.” Furthermore, the preamble identifies democracy, human rights, social progress, and protection of the environment as fundamental for strengthening peace. Finally, it expresses commitment to the purposes and principles of both the UN Charter and the OAS Charter, which themselves adhere to peace as an aim. The now defunct UNASUR (Union of South American Nations) was founded by left-wing Presidents Lula and Chavez who declared South America to be a zone of peace. It ended in 2019 and was replaced by PROSUR (Forum for the Progress and Development of South America), which was composed of Chile, Colombia, Brazil, Peru,

67 Political Declaration of MERCOSUR, Bolivia, and Chile as a Zone of Peace (24 July 1999), https://​www​.oas​.org/​csh/​english/​docc​&​tmercosur​.asp (accessed 9 September 2020). On MERCOSUR’s support of peace education see Feliciatas Acosta, “A Latin American Approach to Peace: The Case of MERCOSUR,” The Palgrave Handbook of Global Approaches to Peace (Palgrave Macmillan 2019) pp. 367–392. On MERCOSUR and security cooperation, see Andrea Oelsner, “Consensus and Governance in Mercosur: The Evolution of the South American Security Agenda” 40(2) Security Dialogue (2009) pp. 191–212.

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Ecuador, Argentina, Paraguay, and Guyana (excluding Venezuela). PROSUR was founded by the right-wing Presidents Pinear and Duque; notably it aims to promote regional integration but does not mention peace. Both CARICOM (The Caribbean Community) and CELAC (the Community of Caribbean and Latin American States, originally established by Venezuela) declared Latin America and the Caribbean to be a zone of peace. These institutions reiterate the principles of non-interference and non-intervention in the affairs of states (both direct and indirect), condemnation of the threat or use of force, peaceful dispute resolution, peaceful coexistence, respect for sovereignty, self-determination, adherence to the rule of law, respect for human rights and democracy, nuclear disarmament, and a culture of peace. They engaged to oppose US support for regime change in Venezuela in 2019, pursuing dialogue with the UN Secretary-General to support recognition of the peace zone, resulting in his offer to provide mediation.68 The CARICOM countries also divided the OAS by voting against or abstaining from a vote on a resolution on the situation in Venezuela in 2019.69 Brazil withdrew from CELAC, alleging that the sub-regional group failed to protect democracy given its stance on Venezuela.70 MERCOSUR suspended Venezuela on account of failure to uphold democratic norms.71 In 2017, the Lima Group (composed of 12 states) was created to seek a peaceful solution to the crisis in Venezuela but sought regime change without the use of force.72 Polarization within the region prevents effective pacific dispute resolution. Instead of an effective response to the humanitarian crisis involving the forced migration of over 3 million Venezuelans to neighboring countries, the international community has failed to achieve consensus on the way forward and the pursuit of peace is 68 “Readout of the Secretary-General’s Meeting with CARICOM Delegation” (United Nations Secretary-General, 28 January 2019), https://​ www​ .un​ .org/​ sg/​ en/​ content/ ​ s g/ ​ r eadout/ ​ 2 019 ​ - 01 ​ - 28/ ​ r eadout ​ - of ​ - the ​ - secretary​ - general​ % E2​ % 80​ % 99s​ -meeting​-caricom​-delegation (accessed 20 July 2020). 69 “SVG Vote against OAS Resolution on Human Rights in Venezuela”, News 784 (30 August 2019), https://​news784​.com/​local​-news/​svg​-vote​-against​-oas​-resolution​-on​ -human​-rights​-in​-venezuela/​ (accessed 20 July 2020). 70 “Brazil Steps out from CELAC because of its Failure ‘To Protect Democracy’”, MercoPress (17 January 2020), https://​en​.mercopress​.com/​2020/​01/​17/​brazil​-steps​-out​ -from​-celac​-because​-of​-its​-failure​-to​-protect​-democracy (accessed 15 July 2020). 71 Sarah DiLorenzo, “Mercosur Trade Bloc Suspends Venezuela on Democracy Concerns, Associated Press (5 August 2017), https://​apnews​.com/​c0d​58f7a1c224​ b4286fea93 ​ c c6db1391/​ M ercosur​ - trade​ - bloc​ - suspends​ - Venezuela​ - on​ - democracy​ -concerns (accessed 20 July 2020). 72 The 12 members comprised Argentina, Brazil, Canada, Chile, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Panama, Paraguay, and Peru. Guyana, Saint Lucia, Bolivia and Haiti became members later on. They sought negotiation with consensus to peacefully achieve the restoration of democracy in the country.

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stalled. At the time of writing Latin America is challenged by societal ruptures and sub-regional divisions that impede harmonization and peaceful regional integration.

2.8 CONCLUSION Latin America’s historic substantive commitment to pursuing peace through law as both a means and an end is contrasted by the negative impact of intra-regional polarization. The puzzle is how to achieve the regional aim when there is divergence as to what is the correct road to peace, for example whether it is acceptable to apply any form of coercion in the name of peace and how to restore regional consensus. What should be the approach of the international community to address illiberal, populist democracies that pursue authoritarian peace? In part, this demonstrates complexity as pertaining to the interpretation of the scope of implementation of peace in practice. Furthermore, the continued presence of external stakeholders with interests in the natural resources in the region sustains the propensity for ongoing interstate territorial disputes. The next chapter will discuss similar dilemmas regarding constitutional approaches to negative peace within Latin America, juxtaposing normative language to contextual challenges and the risk of oppressive peace.

3. Constitutional approaches to peace within Latin America 3.1

INTRODUCTION: PEACE AS CONSTITUTIONAL VALUE OR AIM OF THE STATE

Peter Haberle has examined constitutional recognition of the obligation to contribute to peace.1 Often, the reference to peace is contained within the preamble. Haberle suggests that preambles form a point of reference in the history of a nation, tying together a past, present, and future to form a coherent narrative. Furthermore, the preamble is not only a framework of reference for the duties and functions of the state and its citizens, but also serves as a guideline for interaction of the state with society.2 Finally, the preamble sets the tone of the Constitution by conveying fundamental principles. Haberle indicates that inclusion of peace within a preamble would classify it above a moral appeal, as a fundamental principle, but may require subsequent recognition within a bill of rights, in the main text of the Constitution, or other legislation. On the other hand, in Colombia, the preamble is considered part of the constitutional block, hence its reference to peace carries normative weight on par with the rest of the Constitution, although peace is also referred to within separate articles in the main text, which gives it increased justiciability.3 Haberle states that there 1 R. Ferreyra, “Notas sobre la paz. Propósito de un constitucionalismo ciudadano” 12(24) Ratio Juris UNAULA (2017) pp. 391–415. 2 S. Thieil, “Three insights from Peter Haberle’s ‘Preambles in the text and context of constitutions’” UK Constitutional Law Blog (25 March 2015). 3 C.C., 18 May 1995, Sentencia C-225/95 (Colom.). The Colombian Constitutional Court affirmed that “from a constitutional perspective, peace should not be considered the absence of conflicts, but the instrument for managing the latter peacefully.” Cited by Justin O. Frosini, “Constitutional Preambles: More Than Just a Narration of History” 2 University of Illinois Law Review (2017) p. 603. See Manuel José Cepeda Espinosa and David Landau, Colombian Constitutional Law: Leading Cases (OUP 2017) p. 47 presenting C-291/07 in which the Colombian Constitutional Court described the constitutional block as rules and principles (including human rights) which serve as a guiding parameter in the interpretation of constitutional provisions and serving an integrative function by providing constitutional guidance in the absence of express constitutional provisions.

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is a presumption of harmony between constitutional provisions, hence one may argue that constitutional provisions should be interpreted in conformance with the reference to peace. Indeed, one may also argue that peace should be considered a higher constitutional principle of substantive weight and significance, a supreme universal value recognized by the international and national orders, a Gründnorm as discussed in Chapter 1.4 Indeed, Antonio Enrique Pérez Luno referred to peace as a fundamental value and obligation of everyone, especially those in power, and wondered why it continues to be debated when it is so important and essential to survival.5 The recognition of peace as a constitutional value is quite common within the region, even within countries marked by social unrest and violence. The preambles of the Constitutions of Nicaragua (1987) and Ecuador (2009) recognize peace as an aim. The Preamble of Haiti’s 1987 Constitution articulates “social peace” as an aim of the government. The Constitution of the Dominican Republic (2015) recognizes peace as a supreme value and principle, while Venezuela’s 1999 constitutional preamble and Article 1 recognize “international peace” as a value. Hence, peace appears in most of the constitutions within Latin America, presenting a rich tapestry of manifestations, confirming its multifaceted normative nature as well as the complex histories of each of the nations. This invites reflection as to the form in which peace appears. There is an inherent tension between the role of peace in some countries as it is utilized to maintain an internal, oppressive orientation towards legitimizing state control of the society, while, in other countries, it evinces openness towards societal enjoyment of peace by offering a space for a transnational, diverse policy action rooted in emancipation.6 This section surveys the national contexts and cate4 See Anne Peters, “Supremacy Lost: International Law Meets Domestic Constitutional Law” 3 Vienna Online Journal of International Constitutional Law (2009) p. 170, at pp. 195–198, cited by Yota Negishi, “The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality” 28 European Journal of International Law (May 2017) p. 457. 5 Antonio Enrique Pérez Luna, Derechos humanos, Estado de Derecho y Constitucíon (Madrid Tecnos 1995). 6 See UN Charter, Preamble, Article 1 and Article 2. David Law has categorized three types of constitutions: the liberal archetype, the statist archetype, and the universalist archetype. The liberal constitution seeks to regulate and restrain the authority of the state through negative and procedural rights, as well as via a strong independent judiciary to protect individuals from abuses by the state. The statist constitution identifies the state as seeking the community’s goals through positive rights and the community is expected to cooperate with the state to achieve those goals. The judiciary is intended to protect the state’s interest. The universalist archetype commits to the international normative order and is supportive of international cooperation to address global challenges. The judiciary is expected to uphold the global legal order. David Law, “Constitutional archetypes” 95 Texas Law Review (2016) p. 153.

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gorizes the Latin American constitutions’ normative articulation of negative peace into different groups: • Internally Oriented, Statist/Liberal Peace as a condition for enjoyment of a right – association, assembly, speech, petition, writing and the Risk of Oppressive Peace (Argentina, Brazil, Colombia, Chile, Guatemala, Mexico (peaceful writing), Nicaragua, El Salvador, Haiti, Panama, Peru, Uruguay, Paraguay, Suriname, Venezuela); • Externally Oriented Negative Peace – A. peaceful coexistence and obligation to pursue pacific settlement of disputes, peaceful cooperation, participate in international peace missions, peace and trade, participation in supranational order, peaceful passage through the Panama Canal (Argentina, Barbados, Brazil, Ecuador, Honduras, Uruguay, Suriname, Venezuela, Bolivia, Cuba, Colombia, Costa Rica, Guatemala, Paraguay, Panama); B. renunciation of war, condemnation of wars of aggression, prohibition of foreign military bases, asylum for peace activists, right of conscientious objection (Costa Rica, Bolivia, Ecuador, Venezuela, Cuba, Nicaragua, Paraguay).

3.2

LIBERAL-STATIST INTERNAL ORIENTATIONS TOWARDS PEACE: PROTEST MARCHES, STATE RESPONSES, AND THE RISK OF OPPRESSIVE PEACE

In accordance with the orientation of the American Convention on Human Rights, the majority of Latin American constitutions include a liberal-statist internal approach to peace in which peace is a condition for the enjoyment of a right, such as freedom of assembly, association, or expression.7 Society is expected to cooperate with the state in pursuit of the shared, common goal of peace. There is a tension because liberal freedoms form part of the foundation of democracy.8 They enable society to exert democratic control of the state through demands for transparency, accountability, and pluralistic participation. The state’s interest in controlling protest marches reveals a possible 7 For example, Suriname’s Constitution (1987) has Article 20, which states: “Everyone has the right to freedom of peaceful association and assembly, taking into consideration the rules to be determined by law for the protection of public order, safety, health and morality.” Furthermore, Article 211 states: “The right to demonstrate peacefully is recognized.” 8 Sergio Garcia Ramirez, Alejandra Gonza and Erendira Ramos Vasquez, La Libertad de Expression (Sociedad Interamericana de Prensa 2018) p. 30.

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conflict between the state and society’s interpretation of the scope and balance between peace and democracy. Roberto Gargarella states that Latin American constitutionalism was largely oriented towards consolidating order after independence and reflected compromise between liberal and conservative political factions in the period between 1850 and 1910.9 This was followed by a period of social reforms through 1950 addressing labor rights and social security. The third period included the adoption of human rights guarantees (including women’s rights) and recognition of special protection for indigenous or ethnic groups.10 However, these reforms were not always accompanied by decentralization of power, thus the impact of new rights may have been limited in practice. The region underwent an explosion of social mobilization in the 1990s and the 2000s that Gargarella describes as addressing the impact of neoliberal reforms, including free trade agreements with the United States, water and gas privatization, and occupation of land by the landless.11 By 2019 Latin America ignited once more in widespread protests addressing corruption, impunity, economic inequality, and environmental damage caused by development projects.12 It is arguable that within the Latin American context, in which there is a current trend towards authoritarianism, it is very important to understand the impact of social order orientation approaches in relation to the regional triad of democracy, development, and peace at the regional level. 3.2.1

Peace as Social Order and the Risk of Oppressive Peace

3.2.1.1 Argentina Argentina’s 1853 constitutional preamble refers to “preserving domestic peace” as an object of the creation of the Constitution; peace is thus a positive

9 Roberto Gargarella, “Equality” in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar Publishing 2017) p. 177. 10 Roberto Gargarella, “Latin American Constitutionalism: Social Rights and the ‘Engine Room’ of the Constitution” 4(1) Notre Dame Journal of International and Comparative Law (2013–2014) pp. 9–17. 11 Ibid at pp. 189–190. 12 Moises Nam and Brian Winter, “Why Latin America was Primed to Explode”, Foreign Affairs (29 October 2019), https://​www​.foreignaffairs​.com/​articles/​central​ -america​-caribbean/​2019​-10​-29/​why​-latin​-america​-was​-primed​-explode (accessed 15 July 2020). See also the Carnegie Endowment for Peace Protest Tracker Map, noting that eight out of 12 Latin American states experienced significant protests in the recent period: https://​carnegieendowment​.org/​publications/​interactive/​protest​-tracker​?gclid​ = ​ E AIaIQobC ​ h MIy7vm2P7​ l 6wIVEywYC​ h 2gSQD1EAA​ Y ASAAEgIfO​ _ D​ _ BwE (accessed 13 September 2020).

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right, not a negative right. This reflects an internal orientation towards state control of societal action – a guarantee of domestic peaceful coexistence. This remains a persistent concern for the state, given significant episodes of social unrest, protests, and rioting throughout the country’s modern history.

Source:

Adolfo Pérez Esquivel and the Secretaria Comisíon por la Memoria.

Figure 3.1

Adolfo Pérez Esquivel and the mothers of the Plaza de Mayo

Argentina has had long periods of military dictatorship, the last one from 1976 to 1983. As part of the US-backed Operation Condor, state security forces forcibly disappeared an estimated 30,000 persons, including university students, trade unionists, journalists, and other activists.13 The mothers of the disappeared formed a human rights organization which sought the truth about the fate of their children, famously demonstrating every week in the Plaza de Mayo (see Figure 3.1).14 As a result of his organization of community activism against the dictatorship, Adolfo Pérez Esquivel was arbitrarily detained and 13 The Inter-American Court of Human Rights addressed Operation Condor in the Case of Goiburu v. Paraguay (22 September 2006). Operation Condor included the regimes of Argentina, Brazil, Bolivia, Chile, Uruguay, Paraguay, Ecuador, and Peru. 14 Viviana M. Abreu Hernandez, “The Mothers of La Plaza de Mayo: A Peace Movement” 27(3) Peace & Change (2002) pp. 385–411.

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tortured for over a year. He founded an NGO Servicio Paz y Justicia that promoted an international campaign to denounce the human rights violations of the Dirty War. He was awarded the Nobel Peace Prize in 1980 and the Pope John XXIII Peace Memorial and went on to protest both national and international issues of oppression, including environmental protection, the impact of austerity measures, and the use of force in the Middle East. In the more recent period, Argentina experienced protests in 2015 addressing violence against women “Ni una menos” (also addressing socio-economic rights, which spread to many other countries within Latin America) and in 2019 against the Macri regime’s economic policies and resulting food crisis.15 To the extent the Argentine Supreme Court has addressed peace it is as part of a standard review of the grounds for the state’s limitation of a right, such as freedom of expression or the right to strike, underscoring its role as the guardian of the community.16 The Inter-American Court of Human Rights condemned the abuse of judicial process in the context of violation of freedom of expression in the Case of Kimmel v. Argentina (2008), in which a journalist who criticized a judge’s actions in relation to the investigation of the San Patricio massacre was subject to reprisal in the form of criminal proceeding for libel.17 The single greatest potential drawback of promoting recognition and dissemination of peace as a Gründnorm is that it may be misapplied to support oppressive policies by the state to respond to dissent. It is undeniable that state actors often equate peace with security and thus justify security measures in the name of peace.18 At the international level, this is exemplified by peace missions pursuing counter-terrorist operations, and at the national level by arbitrary arrests of persons engaged in protests against government reforms or private development projects, fomenting the phenomenon of illiberal peace.19

15 Hinde Pomeraniec, “How Argentina Rose Up Against the Murder of a Woman”, The Guardian (8 June 2015), https://​www​.theguardian​.com/​lifeandstyle/​2015/​jun/​ 08/​argentina​-murder​-women​-gender​-violence​-protest (accessed 28 July 2020). “The Situation is Dire: Argentines Protest over Food Crisis”, Al Jazeera (13 September 2019), https://www.aljazeera.com/new(s/2019/09/situation-dire-argentinians-protes t-food-crisis-190913062627019.html (accessed 28 July 2020). 16 Supreme Court of Argentina, Menem Carlos Saul c/ Editorial Perfil y otros s/ daños y prejuicios. 368. XXXIV. REX 25/09/2001 Fallos: 324:2895; Unión Obrera Molinera Argentina c/ Minetti, José y Cía.1962 Fallos: 254:65. 17 I/A Court H.R., Case of Kimel v. Argentina. Merits, Reparations and Costs. Judgment of May 2, 2008 Series C No. 177. 18 See also Alexandra Huneeus, “When Illiberals Embrace Human Rights” 113 American Journal of International Law Unbound (2019) p. 380. 19 David Lewis, John Heathershaw and Nick Megoran. “Illiberal Peace? Authoritarian Modes of Conflict Management” 53(4) Cooperation and Conflict (2018) pp. 486–506.

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3.2.1.2 Venezuela All statesmen claim to act in peace. As an example, President Maduro often claims to invoke peace as an aim, but the exodus of 4 million citizens fleeing on account of hunger due to a collapsed economy, lack of services, and repression belies his alleged commitment, precisely because of the violations of human rights and democracy. Maduro’s peace is not a “quality peace” and there have been mass protests involving tens of thousands of people demanding the resignation of President Maduro.20 Pursuant to Article 68 of the Venezuelan Constitution: “Citizens have the right to demonstrate, peacefully and without weapons, subject only to such requirements as may be established by law.” Nevertheless, there have been serious charges of arbitrary detention, torture, and extrajudicial executions of opponents signaling Maduro’s commitment to oppressive peace.21 Venezuela has been under the populist Bolivarian Revolutionary regime, which commenced with Hugo Chavez in 1998 but deteriorated into an economic crisis that worsened under the regime of Nicolás Maduro. The legitimacy of Maduro’s reelection was questioned in 2018, and the following year, the international community divided in supporting the National Assembly Federal Deputy Juan Guaidó as president, resulting in an impasse towards restoration of peace.22 Ironically, President Maduro continuously invokes the right of Venezuelans to live in peace, enjoy self-determination free from foreign intervention, linking peace to sovereignty.23 The government blames US and EU economic sanctions and banking freezes as causing the humanitarian crisis.24 The humanitarian

20 “Tens of Thousands Protest in Venezuela to Urge Nicolas Maduro To Resign”, Reuters (3 February 2019), https://​www​.theguardian​.com/​world/​video/​2019/​feb/​ 03/​tens​-of​-thousands​-protest​-in​-venezuela​-to​-urge​-nicolas​-maduro​-to​-resign​-video (accessed 15 July 2020). 21 UN Office of the High Commissioner for Human Rights, Report on the Human Rights Situation in the Bolivarian Republic of Venezuela, A/HRC/41/18 (5 July 2019). 22 Thomas Legler, “A Story within a Story: Venezuela’s Crisis, Regional Actors, and Western Hemispheric Order Upheaval” 109 European Review of Latin American and Caribbean Studies (2020) pp. 135–156. 23 “Presidente Maduro: Sigamos Ganando el Derecho a La Paz”, TeleSur (5 March 2020), https://​www​.youtube​.com/​watch​?v​=​s​-mwSFnFRxI (accessed 26 July 2020). 24 On the effect of economic sanctions on human rights, see Dursen Pesken, “Better or Worse? The Effect of Economic Sanctions on Human Rights” 46(1) Journal of Peace Research (2009) 59–77. Utilizing time-series, cross-national data for the period 1981–2000, the findings suggest that economic sanctions worsen government respect for physical integrity rights, including freedom from disappearances, extra-judicial killings, torture, and political imprisonment. The results also show that extensive sanctions are more detrimental to human rights than partial/selective sanctions. Economic coercion remains a counterproductive policy tool, even when sanctions are specifically imposed with the goal of improving human rights. Finally, multilateral sanctions

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tragedy of displacement, hunger, and arbitrary detention suffered by the people may be considered a violation of a right to peace as well as a violation of the neighboring countries’ right to peaceful coexistence, as was pointed out by the representative of Uruguay in the UN Arria Formula meeting in 2017.25 At present, peace negotiations are stalled and there are calls to file international criminal charges against the Maduro regime for crimes against humanity, rendering the outlook for implementation of peace as a constitutional value bleak.26 In 2012, Venezuela denounced the American Convention on Human Rights and withdrew its recognition of the jurisdiction of the Inter-American Court of Human Rights, thereby seeking to limit the filing of human rights complaints with the Court. It is suggested that the international community and civil society have key roles in unmasking illegitimate claims to peace, and instead underscore the importance of participation of institutions such as the Inter-American Court of Human Rights to define what characteristics a pro homine peace is expected to have. A starting point would be the requirement of full respect for human rights. Hence, repression of the freedoms of expression, assembly, association, as well denial of access to the right to food and basic services would be factors for discrediting a state’s claim of pursuit of peace policies. Authoritarian states pursue policies which use coercion and power hierarchies to control discourses, limit dissent, and manipulate spatial mobility (resettlement, denial of movement rights, etc.) and political economy to reward supporters and marginalize opponents (who risk being labeled terrorists as part of delegitimization of their demands).27 The Inter-American Court of Human Rights issued an Advisory Opinion on the Denunciation of the American Convention on Human Rights and the Charter of the Organization of American States and the consequences for state human rights obligations in 2020 that underscored the

have a greater overall negative impact on human rights than unilateral sanctions. In February 2021 the UN Independent Rapporteur on Unilateral Coercive Measures and Human Rights, Alena Douhan, declared that the unilateral sanctions exacerbated the pre-existing crisis in Venezuela and called for their removal. “Independent UN rights expert calls for unilateral sanctions to be dropped against Venezuela”, UN News (12 February 2021), https://​news​.un​.org/​en/​story/​2021/​02/​1084642 (accessed 27 February 2021). 25 UN Arria Formula Meeting on Venezuela 2017: http://​ webtv​ .un​ .org/​ watch/​ the​-situation​-in​-venezuela​-security​-council​-arria​-formula​-meeting/​5640800406001/​ (accessed 13 September 2020). 26 Gissou Nia and Rodrigo Diamanti, “How to Hold Venezuela’s Maduro for Human Rights Abuses”, Just Security (28 April 2020), https://​ www​ .justsecurity​ .org/​69877/​how​-to​-hold​-venezuelas​-maduro​-accountable​-for​-human​-rights​-abuses/​ (accessed 26 July 2020). 27 Ibid.

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importance of member states of the OAS to provide asylum to those fleeing and to seek investigation and prosecution of human rights violations.28 3.2.1.3 Nicaragua Nicaragua was occupied by the United States in the 1930s and then experienced a 43-year Somoza dictatorship, which was toppled by the Sandinistas in 1979. They were later opposed by the US-backed Contras in a war that killed 30,000 people. Nicaragua’s 1987 Constitution, Article 3, refers to its historic Sandinista revolution as it identifies the struggle for peace and proclaims solidarity with countries fighting oppression and discrimination: “The struggle for peace and the establishment of a just world order represent fundamental commitments of the Nicaraguan nation. We therefore oppose all forms of colonialist and imperialist domination and exploitation and declare our solidarity with all countries fighting against oppression and discrimination.” Elections were held in 1990 but Daniel Ortega returned to power in 2011 and has held power ever since. Nicaragua’s 1987 Constitution, Article 53 guarantees: “The right to peaceful gathering is recognized; the exercise of this right does not require prior permission.” In 2018–2019, there were massive protests against President Daniel Ortega which resulted in equally massive repression entailing loss of lives and injuries, as well as torture and prosecution of opponents.29 The Inter-American Court of Human Rights responded to the grave threats to lives and arbitrary detention with provisional measures.30 Carlos Emilio Lopez, a member of the National Assembly, noted that peace is a social good and a collective right that is constructed in a horizontal relationship between the government and the people, arguing that the Sandinista party had provided 11 years of peace until the recent disturbances of the peace. The

28 I/A Court HR, Denunciation of the American Convention on Human Rights and the Charter of the Organization of American States and the consequences for State human rights obligations (interpretation and scope of articles 1, 2, 27, 29, 30, 31, 32, 33 to 65 and 78 of the American Convention on Human Rights and 3(l), 17, 45, 53, 106 and 143 of the Charter of the Organization of American States). Advisory Opinion OC-26/20, November 9, 2020. Series A No. 26. 29 Human Rights Watch, “Nicaragua: Events of 2018”, World Report 2019 (Human Rights Watch 2019) https://​www​.hrw​.org/​world​-report/​2019/​country​-chapters/​ nicaragua (accessed 15 July 2020). 30 I/A Court H.R., Matter of the Nicaraguan Center for Human Rights and the Permanent Commission of Human Rights (CENIDH-CPDH) regarding Nicaragua. Adoption of Urgent Provisional Measures. Order of the President of the Inter-American Court of Human Rights of July 12, 2019. I/A Court H.R., Matter of seventeen persons deprived of liberty regarding Nicaragua. Provisional Measures. Adoption of Urgent Provisional Measures. Order of the President of the Inter-American Court of Human Rights of May 21, 2019.

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National Assembly adopted a Law on the Culture of Dialogue and Peace.31 However, the government appears to place most of the responsibility on society rather than itself, in spite of the gross human rights abuses conducted by the state, including extrajudicial executions, torture, and rape in detention.32 3.2.2

Correcting Oppressive Peace

Latin America is experiencing chronic protests addressing the failure to maintain positive peace: cuts to education, health care, and the claim for recognition of water as a human right, impact of development projects on the environment, violence against social activists, protection of women against gender violence, as well as demands for regime change and an end to corruption and impunity. The degree to which states seek to curtail the right of assembly is an area in which the Inter-American Court of Human Rights can be requested to address the scope of infringement of demands for positive peace. The constitutions are liberal/statist in the sense that peace is set as a limitation of the liberal right that is placed upon society. It is essential that the Inter-American Court of Human Rights support national judiciaries in providing independent, objective forums for deliberation of the scope of limitation in concrete actions by the state. Reactions range from arbitrary detention, incarceration, excessive restrictions on protest marches in terms of time, duration, etc., and other violations including threat to life. Sergio Ramirez et al discuss the scope of restrictions:33 In no way could the “public order” or the “common good” (grounds for limitations to human rights) be invoked as means to suppress a right guaranteed by the Convention or to denaturalize it or deprive it of real content (see art. 29 of the Convention). These concepts should be subject to a strictly strict interpretation of the “fair demands” of a “democratic society” that takes into account the balance between the different interests at stake and the need to preserve the object and purpose of the Convention. The “need” and, therefore, the legality of the restrictions on freedom of expression based on Article 13.2 of the American Convention, will depend on whether they are oriented to satisfy an imperative public interest. Among several options to achieve that goal, one that restricts the protected right to a lesser extent must be chosen. Given this standard, it is not enough to demonstrate, for

31 Pedro Ortega Ramirez, “Assamblea Nacional Aprueba la Ley Para una Cultura de Dialogo, Reconciliacion, Seguridad, Trabajo y Paz en Nicaragua”, El 19 (24 January 2019), https://​www​.el19digital​.com/​articulos/​ver/​titulo:​86669​-asamblea​-nacional​ -aprueba​-ley​-para​-una​-cultura​-de​-dialogo​-reconciliacion​-seguridad​-trabajo​-y​-paz​-en​ -nicaragua (accessed 20 July 2020). 32 UN Office of the High Commissioner for Human Rights, Report of the Human Rights Situation in Nicaragua, A/HRC/42/18 (3 September 2019). 33 Sergio García Ramírez, Alejandra Gonza and Eréndira Ramos Vázquez, La Libertad de Expression (Sociedad Interamericana de Prensa 2018) p. 30.

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example, that the law serves a useful or timely purpose; In order for them to be compatible with the Convention, the restrictions must be justified according to collective objectives that, due to their importance, clearly recognize the social need for the full enjoyment of the right that article 13 guarantees and do not limit more than what is strictly necessary proclaimed in that article. That is, the restriction must be proportional to the interest that justifies it and closely adjust to the achievement of that legitimate objective, interfering to the least extent possible in the effective exercise of the right to freedom of expression.34

The Court addressed intimidation tactics used against women activists engaging in defense of mining strikes as violating Article 16 on freedom of association in Cantoral Huamaní and García-Santa Cruz v. Peru (2007):35 The Court also found that the execution of Saúl Cantoral-Huamaní and Consuelo García-Santa Cruz had an intimidating effect on the workers of the Peruvian mining trade union movement. In a context such as that of the instant case, executions like these not only restricted the freedom of association of an individual, but also the right and the freedom of a specific group to associate freely without fear; in other words, the freedom of the mining workers to exercise this right was affected. In addition, this intimidating effect was accentuated and made more severe by the context of impunity that surrounds the case.

The Inter-American Court of Human Rights also issued an advisory opinion recognizing the right of trade unions and indigenous communities to file claims with the Court.36 The Inter-American Commission on Human Rights produced a report in 2017 titled “Silenced Zones: Highly Dangerous Areas for the Exercise of Freedom of Expression,” which offered recommendations that focused on protecting journalists from physical or psychological attacks, as these would be deemed violations of freedom of expression.37 The Inter-American Court of Human Rights outlined the protection due to journalists in a contentious case Vélez Restrepo (2012), involving a cameraman

34 Ibid. See also Inter-American Commission on Human Rights, Inter-American Legal Framework Regarding Freedom of Expression, OEA/Ser. L/V/II CIDH/RELE/ INF/2/09 (30 December 2009). 35 I/A Court H.R., Case of Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of July 10, 2007. Series C No. 167, para. 148. 36 I/A Court H.R., The Standing of Legal Entities in the Inter-American Human Rights System, Advisory Opinion OC-22/16, 26 February 2016. 37 Edison Lanza, Special Rapporteur for Freedom of Expression, Silenced Zones: Highly Dangerous Areas for the Exercise of Freedom of Expression, OEA/ Ser.L/V/II CIDH/RELE/INF.16/17 (Inter-American Commission on Human Rights 15 March 2017), https://​www​.oas​.org/​en/​iachr/​expression/​docs/​publications/​ZONAS​ _SILENCIADAS​_ENG​.pdf (accessed 15 July 2020).

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who was attacked by the Colombian military on account of his filming of a protest against fumigation by the military of coca plants. It held that there was a violation of freedom of expression.38 The Inter-American Court of Human Rights also found a violation of freedom of expression in the case of Palamare-Iribane v. Chile (2005), in which a retired navy officer published a book titled Ethics and Intelligence Services, for which he was subject to prosecution in military courts without independent appeal while the book was blocked from sale.39 As noted by Naira Posenato:40 If all forms of expression are in principle protected by Article 13 of the American Convention, certain types of speech receive special protection because of their importance for the exercise of other human rights and, especially, for the maintenance and strengthening of democracy, in line with the Inter-American Court special attention for the protection of the right to freedom of expression collective dimension. For the Inter-American Court, three types of speech deserve special protection: (a) political speech or speech involving matters of public interest; (b) speech regarding public officials in the exercise of their duties or candidates to public offices; and (c)

38 I/A Court H.R., Case of Vélez Restrepo and family v. Colombia. Preliminary Objection, Merits, Reparations, and Costs. Judgment of September 3, 2012. Series C No. 248. 39 I/A Court H.R., Case of Palamara Iribarne v. Chile. Merits, Reparations and Costs. Judgment of November 22, 2005. Series C No. 135. 40 Naira Posenato, The Protection of the Right to Freedom of Expression: A Panorama of the Inter-American Court of Human Rights Case Law (2016), https://​www​.researchgate​.net/​publication/​295244849​_THE​_PROTECTION​_OF​_THE​ _RIGHT​_TO​_FREEDOM​_OF​_EXPRESSION​_A​_PANORAMA​_OF​_THE​_INTER​ -AMERICAN ​ _ COURT​ _ OF​ _ HUMAN​ _ RIGHTS​ _ CASE​ _ LAW​ _ A​ _ PROTECAO​ _DO​ _ DIREITO​ _ A​ _ LIBERDADE​ _ DE​ _ EXPRESSAO​ _ UM​ _ PANORAMA​ _ DA​ _JURISPRUDENCIA​_DA​_COR (accessed 15 July 2020). She reviews the case law: In the Case Ivcher Bronstein v. Peru (2001) the Court found a violation of freedom of expression when the State stripped Mr. Bronstein of his nationality to prevent him from editing television programs related to secret services. In the Case Usón Ramírez v. Venezuela (2009) in which a retired general was prosecuted for insulting the Army by critizing the injury of soldiers held in a punishment cell. In Ricardo Canese v. Paraguay (2004) the Court held a violation in the form of defamation proceedings brought against Canese who disclosed his political rival’s links to Stroessner. In Case Kimel v. Argentina (2008) the Court found a violation in the defamation suit against the journalist for his publication of a book “The Massacre of San Patricio” in which he explores the murder of five clergymen and criticized the government, as well as a judge, for insufficient investigation. In the case of Tristan Donoso v. Panama (2009) the Court found a violation in the defamation conviction based on his accusation of corruption by the Attorney General. In Fontevecchia and D’amico v. Argentina (2011), violation in the form of damages ordered to be paid by journalists for disclosure of information about President Menem, allegedly in violation of his right to privacy.

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speech that is an element of identity or personal dignity of the person expressing herself ... The second paragraph of Article 13 of the American Convention also states that freedom of expression can be limited in view of the protection of national security or of public health or morals. The arrangement, however, has been interpreted narrowly by the Inter-American organs, also to prevent that this possibility, given their potential magnitude, should be used to suppress effectively the right to freedom of expression, or deprive it of any real content. In this way, it is clearly stated that, to any penalty imposed in the name of defending the public order (understood as security, public health or morality) is necessary to demonstrate that the concept of “order” is not authoritarian, but a democratic one, understood as the existence of structural conditions for all people, without discrimination, to exercise their rights in freedom, with vigour and without fear of being punished for it. If this concept is invoked as a ground for limiting human rights, it must be strictly interpreted, taking into account the balance between the different interests at stake and the need to preserve the object and purpose of the Convention.

It may be suggested that further recommendations may be warranted for civil society members, although the Inter-American Commission also produced in the same year a report titled “Towards Effective Integral Protection Policies for Human Rights Defenders.”41 3.2.3

Protests in Favor of Positive Peace-related Rights

3.2.3.1 Colombia In April 2019, Colombia experienced nationwide “Peace and Justice” strikes protesting budget cuts affecting education, health care, and pension plans; assassinations of social leaders, afro-Colombian leaders, indigenous leaders and unionists; and infringement of indigenous land rights.42 Colombia’s 1991 Constitution, Article 37, addresses the condition of enjoyment of freedom of assembly: “Any group of individuals may gather and demonstrate publicly and peacefully.” According to Article 218, “the National Police is a permanent armed body of a civilian nature responsible to the national community and whose primary purpose is the maintenance of the conditions necessary for 41 Inter-American Commission on Human Rights, Towards Effective Integral Protection Policies for Human Rights Defenders, OEA/Ser.L/V/II. Doc. 207 (29 December 2017), https://​www​.oas​.org/​en/​iachr/​reports/​pdfs/​Defensores​-eng​-2017​.pdf (accessed 15 July 2020). 42 Steven Grattan, “Thousands hold ‘National Strike’ over Budget Cuts”, Al Jazeera (26 April 2019), https://​www​.aljazeera​.com/​news/​2019/​04/​thousands​-hold​-national​ -strike​-colombia​-budget​-cuts​-190425215502188​.html (accessed 15 July 2020) and “Colombia: Nationwide Strike Against Duque’s Neoliberal Policies”, Telesur (25 April 2019), https://​www​.telesurenglish​.net/​news/​Colombia​-Nationwide​-Strike​-Against​ -Duques​-Neoliberal​-Policies​-20190425​-0012​.html (accessed 15 July 2020).

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the exercise of public rights and freedoms and to insure that the inhabitants of Colombia may live together in peace.” It is intended that the police should guarantee security and peaceful coexistence, as well as prevent violence. They have been engaged in peacebuilding with support of international donors.43 There is concern that peace in Colombia is fragile given the fact that the police use a Mobile Anti-Disturbance Squad, which itself is accused of using disproportionate force, and paramilitary groups remain active against civil society groups. The People’s Congress, representing diverse social groups, issued a statement in 2019 in response to the President’s refusal to enter into a dialogue with indigenous leaders indicating marches as the preferred strategy to voice demands in light of a lack of action by the state to address violations: The organized communities of the Indigenous and peasant movement of the Southwest of the country continue the process of struggle and resistance by way of mobilization, they continue strong in the Social Minga for the defense of life, territory, democracy, justice and peace. Thousands of men and women demand solutions from the Colombian State for the guarantee of rights in the territories. In response to the lack of political will of the Government of Iván Duque, the violation of established agreements, the absence of guarantees for life and the protection of the territories, the military treatment of the social protest, the terrible National Development Plan which furthers the model of death, displacement and pillaging; are the reasons that motivate this mobilization.44

This underscores that the path to peace is long and is prone to setbacks. There is a need for courts to support the road towards consolidation of peace, and the Inter-American Court of Human Rights has responded through its delivery of provisional measures to guarantee protection for those facing grave risk to life.45 3.2.3.2 Chile Chile’s 1980 Constitution, Article 13, guarantees “[t]he right to assemble peacefully without prior permission and unarmed.” Like Argentina, Chile has had a long history of protest marches, including the March of the Penguins in 2006 involving students, as well as between 2011 and 2013 (called the Chilean Winter), marches by pensioners in 2016, and student marches again in 2019 43 “Peacebuilding Model of the Colombian National Police: A Long-Term Commitment for Peace”, Interpeace (26 May 2017), https://​www​.interpeace​.org/​2017/​ 05/​peacebuilding​-colombian​-commitment/​ (accessed 15 July 2020). 44 “Colombian Police Attack Protesters on Pan American Highway”, Peoples Dispatch (19 March 2019), https://​peoplesdispatch​.org/​2019/​03/​15/​colombian​-police​ -attack​-protesters​-on​-pan​-american​-highway/​ (accessed 15 July 2020). 45 I/A Court H.R., Matter of Almanza Suárez regarding Colombia. Provisional Measures. Order of the Inter-American Court of Human Rights of October 8, 2020.

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opposed to state intervention in education and privatization of education, during which the students were subjected to tear gas and water cannons by Anti-Riot police.46 The protests in October 2019 occurred after the government raised the price of subway tickets, resulting in a wave of protests against inequality and corruption marked by privatization, low wages and pensions, increased cost of living and education, and a decrease in health services. The protests led to looting, vandalism, arson, and excessive use of force by the state.47 President Sebastián Piñera declared a state of emergency: “We are at war with a powerful, relentless enemy that respects nothing or anyone and is willing to use violence and crime without any limits.”48 Nevertheless, he agreed to increase pensions, provide insurance and medicine for severe illnesses, increase the minimum wage, cancel electricity bill hikes, cut the salaries of congressmen and other politicians who had high salaries, and reform the Constitution.49 Of interest, the Inter-American Court of Human Rights denied a request for a provisional measure of protection claimed by a Chilean judge who felt threatened after he declared the detention of a Chilean protester to be illegal.50 3.2.3.3 Haiti In 2019, Haiti experienced severe protests due to a significant increase in fuel and food prices. Haiti’s 1987 Constitution preamble sets forth that the system of government shall be founded on social peace, and Haiti’s Constitution, Article 31, recognizes the right of peaceful assembly and association. From 1957 to 1986, Haiti was ruled by the Duvalier regime, which engaged in mass murders of opponents until they were replaced through a series of coup d’états, which themselves ended in 1994 with the US Operation Uphold Democracy, which restored President Aristide to power until 2004 when he was subject to

46 Chile recognizes the right of peaceful assembly in its Constitution (1980) Article 19 (13). 47 “OAS Rights Commission calls on Chile to Stop ‘Excessive Force’”, France 24 (6 December 2019), https://​www​.france24​.com/​en/​20191206​-oas​-rights​-commission​ -calls​-on​-chile​-to​-stop​-excessive​-force (accessed 26 July 2020). 48 Associated Press in Chile, “Chile: Protests Rage as President Extends State of Emergency”, The Guardian (21 October 2019), https://​www​.theguardian​.com/​world/​ 2019/​oct/​20/​chiles​-president​-reverses​-fare​-increase​-as​-unrest​-continues (accessed 15 July 2020). 49 Pascale Bonnefoy, “Chile President Responding to Protests Promises to Address Economic Woes”, The New York Times (23 October 2019), https://​www​.nytimes​.com/​ 2019/​10/​23/​world/​americas/​chile​-protests​-pinera​.html​?action​=​click​&​module​=​Latest​&​ pgtype​=​Homepage (accessed 15 July 2020). 50 I/A Court H.R., Case of Urrutia Laubreaux v. Chile. Request for Provisional Measures. Order of the Inter-American Court of Human Rights of March 12, 2020.

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another coup d’état. In the case of Fleury and others v. Haiti (2011)51 involving the arbitrary arrest and torture of a human rights defender, the Inter-American Court of Human Rights called for [a] mandatory program or course as part of the general and continuing training of the Haitian National Police, at all hierarchical levels, which includes, among others, courses or modules on national and international human rights standards, particularly in the proportional use of force by state security forces, adequate treatment of detainees and in matters of investigation and prosecution of constitutive acts of cruel, inhuman or degrading treatment and torture, as well as a mandatory program or course as part of the general and continuing training of Haitian judicial operators, which includes, among others, courses or modules on national and international standards in human rights and particularly in terms of arrests, detentions, investigation and prosecution of acts constituting arrests or illegal detentions, cruel, inhuman or degrading treatment and torture.

The Court also called for review of the investigation procedures of police officials and for coordination to be improved between state judicial officials and their judiciary in order to ensure effective and independent investigations of human rights abuses committed by members of the Haitian security forces, underscoring the need to professionalize the state security forces, and in particular,52 [a]n effective process of selecting and certifying new recruits and existing officers to exclude those who have participated in acts of corruption, human rights violations and other crimes ... the State must adopt the institutional decisions and give instructions that correspond to review and strengthen their accountability mechanisms and bodies of members of the Haitian National Police who may be involved in human rights violations.

Although the Inter-American Court of Human Rights has addressed state accountability for human rights violations affecting positive peace, it is noteworthy that Haiti underwent significant natural disasters and then hosted a 13-year UN Peacekeeping operation, MINUSTAH. It sought to restore law and order and train police, but was marred in its mission by its responsibility for a cholera outbreak and cases of sexual abuse by peacekeepers. This raised issues of the need to address international accountability for human rights violations affecting peace.53 51 I/A Court H.R., Case of Lysias Fleury et al. v. Haiti. Merits and Reparations. Judgment of November 23, 2011. Series C No. 236, para. 129. 52 Ibid at para. 131. 53 Ed Pilkington and Ben Quinn, “UN Admits for the First Time that Peacekeepers brought Cholera to Haiti”, The Guardian (1 December 2016), https://​www​.theguardian​ .com/​global​-development/​2016/​dec/​01/​haiti​-cholera​-outbreak​-stain​-on​-reputation​-un​

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3.2.3.4 Brazil Brazil’s 1988 Constitution, Article 5 XVI, sets forth that all persons may hold peaceful meetings, without weapons, in places open to the public, without need for authorization, so long as they do not interfere with another meeting previously called for the same place, subject only to prior notice to the proper authority. Brazil experienced protests involving tens of thousands of students and teachers in 200 cities in May 2019 after President Bolsonaro proposed severe budget cuts to universities.54 The protests commenced peacefully but did erupt into violence in some locations, including use of rubber bullets by the police. The previous years, tens of thousands of Brazilian students and teachers held protests against the government’s cuts to university funding, which ended scholarships to the underprivileged as well as affecting regularly budgetary costs, such as upkeep of infrastructure.55 Brazil’s challenges regarding internal inequality, discrimination, and marginalization are evident in land conflicts regarding development projects affecting indigenous and rural communities, which damage internal peace.56 Proposals to restrict the right of peaceful assembly and penalize social protests, banning abortion, and weakening the rights of Afro-Brazilian and indigenous communities in land demarcation and consent for use have alarmed human rights activists.57 The Inter-American Court of Human Rights has issued a compliance order calling upon the state to enable the fulfillment of the recognition of territory of the Xucuru indigenous people.58 -says (accessed 15 July 2020) and Logan Abassi, “UN Peacekeepers sexually abused hundreds of Haitian women and girls”, Reuters (10 June 2015), https://​www​.rt​.com/​ news/​266179​-un​-peacekeepers​-haiti​-sexual/​ (accessed 15 July 2020). 54 Tom Phillips, “Students protest across Brazil over Jair Bolsonaro’s sweeping cuts to education”, The Guardian (30 May 2019), https://​www​.theguardian​.com/​ world/​2019/​may/​31/​students​-protest​-across​-brazil​-over​-jair​-bolsonaros​-sweeping​-cuts​ -to​-education (accessed 15 July 2020). Anthony Bodle and Pablo Garcia, “Brazil Education Freeze Spurs Biggest Protests Yet against Bolsonaro”, Reuters (15 May 2019), https://​www​.reuters​.com/​article/​us​-brazil​-politics​-education/​brazil​-education​ -freeze​-spurs​-biggest​-protests​-yet​-against​-bolsonaro​-government​-idUSKCN1SL2H6 (accessed 15 July 2020). 55 Anna Jean Kaiser, “Brazil’s Bolsonaro dismisses ‘imbecile’ students as he faces biggest protests yet”, The Guardian (16 May 2019), https://​www​.theguardian​ .com/​world/​2019/​may/​16/​brazils​-bolsonaro​-dismisses​-imbecile​-students​-as​-he​-faces​ -biggest​-rallies​-yet (accessed 15 July 2020). 56 “Brazil”, CARITAS Canada, https://​www​.devp​.org/​en/​international/​brazil (accessed 10 February 2021). 57 https://​www​.amnesty​.org/​en/​countries/​americas/​brazil/​report​-brazil/​ (accessed 15 July 2020). 58 I/A Court H.R., Case of the Xucuru Indigenous People and its members v. Brazil. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of November 22, 2019.

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3.2.3.5 El Salvador El Salvador’s 1983 Constitution, Article 7, recognizes the right of peaceful assembly. In March 2019, El Salvador experienced a protest march organized by the University of El Salvador calling for water to be recognized as a human right within the Constitution, to be kept under public management, and not be privatized.59 The value of this endeavor was its articulation of a social, economic, cultural, and environmental right as meriting incorporation within the national legal system. El Salvador had a civil war between 1980 and 1992, in which 70,000 people were killed and over 1 million displaced. The 1992 Chapultepec Peace Accords established the Farabundo Martí National Liberation Front (FMLN) as a political party and enabled peaceful transition to democracy. Unfortunately, El Salvador has a chronic problem of gang violence, which has been characterized as prompting a new war between the state and the gangs.60 The use of repressive tactics (detention, raids, executions, militarized policing) by state security actors against criminal gangs (e.g. MS-13), which themselves engage in significant violence, and persistent high rates of poverty, unemployment, and marginalization present serious challenges. In the Case of the Massacre of El Mozote v. El Salvador (2012) the Inter-American Court of Human Rights addressed the state’s liability for its violation of the rights to life pursuant to a scorched-earth policy of massacre of peasants (the majority children, women, and elderly persons) by the Salvadoran Armed Forces in 1981.61 The Court held that El Salvador’s Law of General Amnesty for the Consolidation of Peace actually was contrary to the letter and spirit of the Peace Accords as it infringed the survivors’ and victims’ families’ right to judicial protection and upheld a state of impunity given that the state had failed to effectuate its duty to investigate and punish human rights. As of 2020, El Salvador had yet to comply with the order to investigate those responsible for the massacre and those responsible for the cover-up, nor had the state implemented the order to implement an obligatory course on human rights (including women’s and children’s rights) for all levels of the Army. The failure of the state to comply with these orders indicates a lack of political will to alter the

59 “Hundreds of Salvadorans March against Water Privatization”, Agencia EFE (20 March 2019), https://​www​.efe​.com/​efe/​english/​world/​hundreds​-of​-salvadorans​-march​ -against​-water​-privatization/​50000262​-3930765 (accessed 15 July 2020). 60 “El Salvador’s Politics of Perpetual Crisis”, International Crisis Group, https://​ www ​ . crisisgroup ​ . org/ ​ l atin ​ - america ​ - caribbean/ ​ c entral​ - america/​ e l​ - salvador/​ 6 4​ - el​ -salvadors​-politics​-perpetual​-violence (accessed 15 July 2020). 61 I/A Court H.R., Case of the Massacres of El Mozote and surrounding areas v. El Salvador. Merits, Reparations and Costs. Judgment of October 25, 2012. Series C No. 252.

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structural basis of the discrimination upon which the massacre was based. This bodes poorly for consolidation of positive peace within the nation. 3.2.3.6 Panama Similarly, in 2019, Panama experienced peaceful protests against the possible impact of projects for hydroelectric plants upon the environment.62 Panama’s 1972 Constitution, Article 38, guarantees freedom of assembly: All inhabitants of the Republic have the right to assemble peacefully, without arms for lawful ends. Authorities may take Police action to prevent or restrain abuse of this right, when the form in which it is exercised causes, or may cause, traffic disturbances, breach of the peace, or violation of the rights of others.

The Inter-American Court of Human Rights addressed the Case of the Indigenous Peoples Kuna de Madungandí and Embera de Bayano v. Panama (2014), in which the state constructed a hydro electric dam in the area of Alto Bayano in 1972.63 The area was flooded and the indigenous people were resettled in another territory. Non-indigenous peasant communities sought to move into the territory to work on the dam and the Pan-American Highway, they unionized, and conflicts erupted with the indigenous communities and continued through the 1990s. The indigenous communities sought demarcation and title to their property, as well as removal of the non-indigenous peasant communities from the territory. They repeatedly engaged in protests and blocked the Pan-American Highway. The Inter-American Court of Human Rights held that the state had violated the indigenous communities’ right to property through its failure to demarcate and issue title to their property and it violated their right to judicial protection. As of 2020, the state had not yet demarcated

62 “Panama: Protests against HydroPower projects Ensue”, TeleSur (27 February 2019), https://​www​.telesurenglish​.net/​news/​Panama​-Protests​-Against​-Hydropower​ -Projects​-Ensue​-20190227​-0027​.html (accessed 15 July 2020). Other protests proved less peaceful; they addressed proposed constitutional reforms addressing corruption, immigration, and anti-LGBT marriage, among other issues. Paola Nagovitch, “Panama’s Constitutional Reform Conundrum”, Americas Society Council of the Americas (19 November 2019), https://​www​.as​-coa​.org/​articles/​panamas​-constitutional​ -reform​-conundrum (accessed 31 July 2020). 63 I/A Court H.R., Case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment of October 14, 2014. Series C No. 284.

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the territory of the Ipetí and Piriatí Emberá communities, thereby signaling grounds for continued conflicts. The Court determined that [t]he State must proceed to demarcate the lands that correspond to the Ipetí and Piriatí Emberá communities and to title the Ipetí lands as a right to collective ownership, within one year of notification of this judgment, with the full participation of the communities and taking into consideration their customary law, values, practices and customs. While the said lands have not been adequately demarcated and titled, the State must refrain from any action that could lead to state agents, or third parties acting with their acquiescence or tolerance, affecting the existence, value, use or enjoyment of the resources located in the geographical area where the members of the Ipetí and Piriatí Emberá communities live and carry out their activities. The State must also take the necessary measures to annul the property title granted to C.C.M. within the territory of the Emberá Community of Piriatí within one year of notification of this judgment.64

3.2.3.7 Uruguay The Uruguayan 1967 Constitution, Article 38, sets forth: “The right of peaceful and unarmed public meetings is guaranteed. The exercise of this right may not be denied by any authority of the Republic except in accordance with law, and only insofar as such exercise may prejudice public health, safety or order.” Uruguay has had various protests over the years: in 2002 due to bank closures as a result of Argentine withdrawing funds during the crisis, and others tied to international financial and trade policies, such as the 2018 protests by independent farmers. The Inter-American Court of Human Rights addressed the state’s obligation to respect the right to property in Biaberi Duarte and others v. Uruguay (2011), holding the state accountable for the Central Bank’s failure to give the plaintiffs the right to petition, non-discrimination in proceedings, and failure to guarantee judicial protection.65 There have also been protests against the presence of US military in conjunction with a G20 meeting and protests against “American Imperialism” on account of a visit by President George Bush. The protests revealed the link between external and domestic interests as the protesters called for tax cuts for the agricultural sector and a lowering of petrol costs. In 2017, President Vasquez of Uruguay issued a decree banning street protests, in part responding to worker protests regarding the pulp mill.66

64 Ibid at paras. 232–233. See also I/A Court H.R., Case of Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v. Panama. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of May 23, 2017. 65 I/A Court H.R., Case of Barbani Duarte et al. v. Uruguay. Merits, Reparations and Costs. Judgment of October 13, 2011. Series C No. 234. 66 Priscilla Guinovart, “Uruguay President Isn’t Helping Himself by Banning Protests”, Panam Post (23 March 2017), https://​panampost​.com/​priscila​-guinovart/​

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However, protests continued to confront President Lacalle Pou in 2019–2020 in response to constitutional security reform proposals seeking to legalize house raids and establish a new national guard, as well as the ongoing crisis in the agricultural sector, and resistance to privatization of education. 3.2.4

Protests to Call for Regime Change or Address Corruption and Impunity

Anne Peters points to a correlation between high levels of corruption, impunity, and significant violations of human rights.67 She defines corruption as administrative or political decisions being bought rather than made on the basis of lawful procedure. Peters states that corruption is the antithesis of the rule of law, and that the rule of law is a condition for the enjoyment of human rights. She notes that “corruption and human rights violations thrive in the same environments and probably have the same root causes, such as poverty and weak institutions.”68 Peters explains the conceptual link between corruption and human rights violations: Corruption, which follows the unofficial laws of the market, upsets the legal framework. Conceptually, corruption therefore constitutes the negation of the rule of law and thus also of the idea of human rights. Furthermore, corruption is often an aggravating factor in a human rights violation ... Rampant corruption constitutes a permanent structural danger to numerous human rights of persons subject to the power of officials. Therefore, – in cases involving the complete inaction of the State or evidently deficient anti-corruption measures – the State is in any event responsible under international law for its failure to discharge its human rights obligations to prevent and protect.69

She underscores the obligations of the state to protect, the legislature to pass effective laws, the executive to administer the measure, and the judiciary to offer effective legal protection. She discusses the problem of state inaction to prevent corruption. Brazil experienced a huge scandal when the media reported that the Minister of Justice, Sergio Moro, previously a judge, collaborated with prosecutors to charge the presidential candidate Lula with corruption to impede his election. He was sentenced to nine years in jail and

2017/​03/​23/​uruguayan​-president​-vazquez​-governs​-by​-means​-of​-prohibitions​-and​ -decrees/​(accessed 15 July 2020). 67 Anne Peters, Corruption and Human Rights (Basel Institute on Governance Working Paper No. 2, 2015). 68 Anne Peters, Corruption as a Violation of Human Rights. Max Planck MPIL Research Paper 2016-18. 69 Ibid at pp. 2–11.

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the opposition won the presidential election. Lula filed a complaint with the UN Human Rights Committee.70 Hence, the phenomenon in Latin America is that there are real corruption cases which may not be processed correctly and there are also fake corruption cases which also have procedural irregularities. Corruption charges have become an effective tool to discredit political leaders on the left and the right, facilitating regime changes without the use of the military. It is estimated that over 30 ex-presidents and vice-presidents have been accused, indicted, or prosecuted on charges of corruption since the 1970s, 18 in the recent period, and in the case of particular countries, e.g. Peru, including all living ex-presidents.71 It is noteworthy that the Inter-American Commission on Human Rights resolution on corruption and human rights provides a transnational cooperative framework for tackling this challenge, emphasizing the importance of protecting the independence of judicial actors and maintaining respect for freedom of expression and association, as well as upholding transparency and access to information, and respect for economic, social, cultural, and environmental rights.72

70 Dom Phillips, “Brazil Reels at Claims Judge Who Jailed Lula who Collaborated with Prosecutors”, The Guardian (10 June 2019), https://​www​.theguardian​.com/​world/​ 2019/​jun/​10/​brazil​-lula​-sergio​-moro​-judge​-collaborated​-with​-prosecutors (accessed 15 July 2020). 71 Benjamin Russell, “Legal Trouble for Latin American Presidents”, Americas Quarterly (9 May 2019), https://​www​.americasquarterly​.org/​content/​presidents​-prison​ -temer (accessed 15 July 2020) and Frances Jenner, “Why Corrupt but Charismatic Presidential Candidates Still Get Votes”, Latin America Reports (25 March 2019), https://​latinamericareports​.com/​why​-corrupt​-but​-charismatic​-presidential​-candidates​ -still​-get​-votes/​1491/​ (accessed 15 July 2020). 72 Inter-American Commission on Human Rights, Resolution 1/18 Corruption and Human Rights (2 March 2018), https://​www​.oas​.org/​en/​iachr/​decisions/​pdf/​Resolution​ -1​-18​-en​.pdf (accessed 15 July 2020). In comparison, in Africa, Jorum Duri states that in the case of SERAP v Nigeria before the Court of Justice of the Economic Community of West African States, the applicants argued that the embezzlement of public funds in the department of education violated the right to education and was illegal and unconstitutional as it violated Articles 21 and 22 of the African Charter. Even though the Court did not declare the illegality or unconstitutionality of embezzlement of public funds, it noted the negative impact of corruption on the right to education and ordered the Nigerian government to provide necessary funds to cover the shortfall to ensure smooth implementation of the education program. The decision is important as it recognized the destructive effects of corruption and related Illicit Financial Flows (IFFs) to the full enjoyment and realization of the right to education provided in Article 17 of African Charter. Yorum Duri, “Combating Corruption-related Illicit Financial Flows from Africa: Legal Approaches and Challenges” 2 African Human Rights Yearbook (2018) p.  321, http://​www​.pulp​.up​.ac​.za/​images/​pulp/​books/​journals/​AHRY​_2018/​ Duri​%202018​.pdf (accessed 15 July 2020).

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3.2.4.1 Peru Peru’s 1993 Constitution also contains the narrow concept of peace as a condition of enjoyment of a right: Article 2(12) Every person has the right to peaceful assembly without arms. Meetings on any premises, whether private or open to the public, do not require prior notification. Meetings held in squares and public thoroughfares require advance notification by the relevant authority, which may prohibit such meetings solely for proved reasons of safety or public health. Peru underwent internal conflicts and social unrest, culminating in the Shining Path communist insurgency movement, which terrorized the society throughout the 1980s. In 1990, Alberto Fujimori was elected president. He defeated the Shining Path communist insurgency using heavy-handed tactics by the military and committees of self-defense. He was later tried for human rights violations, including murder and kidnapping, as well as corruption violations, and was imprisoned before receiving a presidential pardon in 2017, which was overturned by the Peruvian Supreme Court in 2018. The Inter-American Court of Human Rights issued a compliance order that criticized the application of a pardon on humanitarian grounds.73 Peru experienced protests in 2018 on account of President Vizcarra’s pardon of Fujimori and in 2019 on account of demands for compensation due to destruction of communal territory by construction of roads to a site operated by a Chinese mining firm.74 There were complaints that the national police used excessive force to repress the protests. In 2019, Peruvians engaged in protests against the president’s dissolution of Congress and the Peruvian Constitutional Tribunal’s order to release Fujimori’s daughter, who had been imprisoned for money laundering and corruption.75

73 I/A Court H.R., Case of Barrios Altos and Case of La Cantuta v. Peru. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of May 30, 2018. 74 “Peruvian Peasants Continue Protests Against Chinese Mining Firm”, Peoples Dispatch (1 April 2019), https://​peoplesdispatch​.org/​2019/​04/​01/​peruvian​-peasants​ -continue​-protests​-against​-chinese​-mining​-firm/​ and https://​www​.hrw​.org/​world​ -report/​2019/​country​-chapters/​peru (accessed 15 July 2020). 75 Claudia Dominguez and Amy Lewis, “Protests in Peru as Country is Thrown into Political Turmoil”, CNN (1 October 2019), https://​edition​.cnn​.com/​2019/​10/​01/​world/​ peru​-protests​-vizcarra​-congress​-intl/​index​.html (accessed 15 July 2020). “Protests in Peru after Court orders Release of Keiko Fujimori”, Al Jazeera (26 November 2019), https://​www​.aljazeera​.com/​news/​2019/​11/​peru​-opposition​-leader​-keiko​-fujimori​-freed​ -pending​-graft​-probe​-191125212930871​.html (accessed 15 July 2020).

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3.2.4.2 Mexico In May 2019, thousands protested to demand the resignation of President Andres Manuel Lopez Obrador in Mexico due to concerns about his inability to improve security and the economic downturn within the nation.76 Mexico has a grim legacy of repressing movements, in particular the Tlatelolco Massacre in which state forces massacred members of the Mexican Student Movement of 1968, which had called for democratic change of regime. In 2018, criminal gangs known as porros composed of conservative-minded individuals seeking to counter liberal positions attacked student demonstrators protesting femicide, disappearance of students, increased tuition fees, and maladministration of the National Autonomous University of Mexico (UNAM).77 Mexico’s 1917 Constitution refers to peace as a measure of the condition of the exercise of several rights, such as freedom of writing – to be limited for public peace (Article 7), right of petition – to be in a peaceful manner (Article 8), and right to peaceful assembly (Article 9). At present Mexico is challenged by endemic violence (including perpetrated by state actors), organized crime, and corruption, resulting in calls for investigations, truth commissions, reform of the police to include civilians, and peacebuilding programs to offer education and training to persons at risk of recruitment into criminal groups.78 The Inter-American Court of Human Rights has issued provisional measures calling for protection of human rights defenders.79 3.2.4.3 Haiti A similar situation erupted in Haiti the same year, as CARICOM issued a statement of concern about the violent protests demanding resignation of President Jovenel Moise on account of charges of corruption, inability to improve the economic downturn, and devaluation of the currency, which resulted in loss of life and damage to property.80 Haiti’s Constitution guarantees the right 76 Josue Gonzalez, “Thousands March in Protest against Mexico’s President”, Reuters (6 May 2019), https://​www​.reuters​.com/​article/​us​-mexico​-president​-protest/​ thousands​-march​-in​-protest​-against​-mexicos​-president​-idUSKCN1SB0U5 (accessed 15 July 2020). 77 Adan Placencia, “Students in Mexico Rise Up Against Political Repression”, Liberation News (19 September 2018), https://​www​.liberationnews​.org/​students​-in​ -mexico​-rise​-up​-against​-political​-repression/​ (accessed 15 July 2020). 78 Human Rights Watch, “Mexico: Events of 2019”, Human Rights Watch World Report 2020, https://​www​.hrw​.org/​world​-report/​2020/​country​-chapters/​mexico (accessed 26 July 2020). 79 I/A Court H.R., Matter of Castro Rodríguez regarding Mexico. Provisional Measures. Order of the Inter-American Court of Human Rights of November 18, 2020. 80 “Haiti suma mas de una semana de protestas contra el gobierno de Moise”, El Pais (15 February 2019), https://​elpais​.com/​internacional/​2019/​02/​14/​america/​ 1550170003​_145275​.html (accessed 15 July 2020).

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of peaceful assembly in Article 31: “Freedom of unarmed assembly and association for political, economic, social, cultural or any other peaceful purposes is guaranteed.” Nevertheless, as previously discussed, in 2011 the Inter-American Court of Human Rights found that the state had violated the freedom of association of a human rights defender.81 By 2019, the Court held that the state had failed to provide reparations to the victim and also failed to train the police and judiciary in human rights.82 The following year, it was the Haitian police themselves that were protesting the government for higher salaries and the president characterized the protests with use of blockades as an attempted coup, while the Army described it as a “war situation.”83 3.2.4.4 Paraguay Paraguay experienced serious protests against government corruption in April 2019.84 The 1992 Constitution, Article 32, sets forth: “Persons have the right to meet and to manifest peacefully, without weapons and with licit ends, without the need of a permit, as well as the right not to be obligated to participate in such acts.” Paraguay has continually faced internal challenges to peace, as it experienced a period of military dictatorships, culminating in the 35-year regime of Alfredo Stroessner, which ended in 1989 by way of an internal military coup. This marked the beginning of the “democratic era” of Paraguay. However, on March 31, 2017, hundreds of demonstrators set fire to the National Congress building after 25 legislators held a closed vote that approved a constitutional amendment which would permit the reelection of the President, Horacio Cartes. The opposition stated that this was an illegal action which amounted to a coup d’état. The Paraguayan Bishops’ Conference urged that there “be no more wars between brothers! Let us always work for peace! ... Peace requires the culture of encounter, the search for the common good, national unity.” The Inter-American Court of Human Rights actually denied a claim presented by a political opponent who claimed to have been abducted and tortured; in a historic turn of events, the president of Paraguay actually 81 I/A Court H.R., Case of Lysias Fleury et al. v. Haiti. Merits and Reparations. Judgment of November 23, 2011. Series C No. 236. 82 I/A Court H.R., Case of Fleury et al. v. Haiti. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of November 22, 2019. 83 “Haiti Capital Port au Prince brought to a Standstill by Protesting Police”, France 24 (15 September 2020), https://​www​.france24​.com/​en/​20200914​-haiti​-capital​-port​-au​ -prince​-brought​-to​-a​-standstill​-by​-protesting​-police (accessed 17 October 2020). “In pictures: Haiti Capital’s streets blocked as protests spread”, BBC News (25 February 2020), https://​www​.bbc​.com/​news/​51628293 (accessed 17 October 2020). 84 Ernesto Londoño and Santi Carneri, “In Paraguay Fighting Graft with Eggs and Toilet Paper”, The New York Times (22 April 2019), https://​www​.nytimes​.com/​2019/​ 04/​22/​world/​americas/​paraguay​-corruption​.html (accessed 15 July 2020).

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attended the oral hearing in the Court, which in turn found a failure of proof demonstrating state responsibility.85 3.2.4.5 Honduras Honduras’ 1982 Constitution, Article 79, sets forth: “Everyone has the right of peaceful assembly, without arms, in a public demonstration or temporary assembly, in connection with their common interests of whatever nature, without the need of notice or special permission.” In June 2019, Honduras experienced serious protests, involving tens of thousands of people, against presidential decrees intended to privatize education and healthcare, which turned violent.86 Similarly, the police used tear gas and there were complaints that security forces were targeting students and journalists. This was followed by more violent protests in October calling for the resignation of President Hernandez on account of allegations of corruption by narco-traffickers, leading one commentator to note “[t]he path to social peace passes through the president’s resignation.”87 Nonetheless, the president remained in office despite the protests as he agreed to receive third-country asylum seekers from the United States.88 Ironically, the majority of the Honduran people continue to live in poverty and experience high levels of violence, prompting continued migration to the United States in search of peace.89 The Inter-American Court of Human Rights has called upon the state to implement a public policy of protection of human rights defenders.90

85 I/A Court H.R., Case of Arrom Suhurt et al. v. Paraguay. Merits. Judgment of May 13, 2019. Series C No. 377. 86 Gustavo Palencia, “Protesters return to Streets in Honduras despite President’s Concessions”, Reuters (4 June 2019), https://​www​.reuters​.com/​article/​us​-honduras​ -protests/​protesters​-return​-to​-streets​-in​-honduras​-despite​-presidents​-concessions​ -idUSKCN1T503W (accessed 15 July 2020). 87 Associated Press, “Violent Protests seek removal of Honduras President”, VOA (24 October 2019), https://​www​.voanews​.com/​americas/​violent​-protests​-seek​-removal​ -honduras​-president (accessed 27 September 2020). 88 Marlon Gonzalez, “US-Honduras Finalize Final Steps on Asylum Deal”, Associated Press (10 January 2020), https://​apnews​.com/​article/​15​661fc80b84​ 46b75131bb​97d5606b32 (accessed 27 September 2020). 89 The World Bank, Honduras, https://​www​-worldbank​-org​.ezproxy​.uio​.no/​en/​ country/​honduras (accessed 27 September 2020). “Hundreds of Hondurans set off for US Border: Little Difference if you Die Here or There”, The Guardian (15 January 2020), https://​www​.theguardian​.com/​world/​2020/​jan/​15/​honduras​-migrants​-caravan​ -us​-border (accessed 27 September 2020). 90 I/A Court H.R., Case of Luna López v. Honduras. Merits, Reparations and Costs. Judgment of October 10, 2013. Series C No. 269.

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3.2.4.6 Costa Rica Costa Rica’s 1949 Constitution, Article 26, sets forth: “Everyone has the right to meet peacefully and without arms, whether for private business, or to discuss political matters and to examine the public conduct of the functionaries.” Internally, Costa Rican peace is currently challenged by the ongoing economic impact of corruption within the past governments, increased inequality, and xenophobic reactions within society against Nicaraguan migrants.91 In September 2018, Costa Rica experienced strikes and protest marches responding to an increase in taxes on rent and public services, corruption, and the phenomenon of luxury pensions held by public servants in perpetuity.92 A particular nefarious corruption case, dubbed the El Cementazo case, involved the provision of a loan by the Bank of Costa Rica to a Costa Rican cement company which purchased cement from China and influenced various politicians. It exposed a complex web of international companies, domestic businessmen, corrupt judges, politicians, political parties, and even former presidents, which belied the country’s international reputation as an exemplary model of a well-functioning, peaceful, democratic state.93 The investigation of corrupt state officials from every branch of government resulted in the removal of judges and other officials from their positions and remains ongoing. It serves as a reminder that peace requires more than refusal to use force at the international level; it requires a dedicated commitment to the elimination of structural violence as well.

91 On xenophobia: Rico, “44 arrested for xenophobic attacks against Nicaraguans in San Jose”, Costa Rica News (18 August 2018), http://​qcostarica​.com/​44​-arrested​ -for​-xenophobic​-attacks​-against​-nicaraguans​-in​-san​-jose/​ (accessed 20 July 2020). On corruption involving a former president: “Costa Rica: Past and Present Presidential Corruption Cases Spoil an Artful but Inaccurate PR Campaign”, Council on Hemispheric Affairs (3 December 2013), http://​www​.coha​.org/​costa​-rica​-past​-and​ -present​-presidential​-corruption​-cases​-spoil​-an​-artful​-but​-inaccurate​-pr​-campaign/​ (accessed 15 July 2020). 92 “Costa Rica: Protestors Confront President Alvardo over Tax Bill”, Al Jazeera (4 October 2018), https://​www​.aljazeera​.com/​news/​2018/​10/​costa​-rica​-protesters​ -confront​-president​-alvarado​-tax​-bill​-181004064515161​.html (accessed 26 July 2020). 93 Alvaro Murillo, “Un escandalo empaña la campaña en Costa Rica y somete pruebas a su sistema político, El Pais (2 November 2017), https://​ elpais​ .com/​ internacional/​2017/​11/​02/​america/​1509632417​_178983​.html (accessed 15 July 2020). Benjamin Russell, “Costa Rica’s ‘Before and After’ Corruption Scandal Casts a Long Shadow”, Americas Quarterly (2 August 2019), https://​www​.americasquarterly​.org/​ article/​costa​-ricas​-before​-and​-after​-corruption​-scandal​-casts​-a​-long​-shadow/​ (accessed 17 July 2020).

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3.2.4.7 Guatemala In January 2019, thousands protested in Guatemala against President Morales’ expulsion of the International Commission against Impunity in Guatemala and his efforts to remove judges from the highest court.94 In essence, citizens were responding to authoritarian backlashes which culminated in the Congress considering granting amnesty to war criminals from the civil war (1960–1996) in which 200,000 people died, marked by a military-led genocide against the indigenous people. There is also concern about state repression of environmental and campesino activists opposed to mining development projects.95 Guatemala’s 1985 Constitution, Article 33, sets forth: “The right of peaceful assembly and without weapons is recognized.” Ironically, Article 244 recognizes the army as destined to maintain the peace. The Inter-American Court of Human Rights has issued provisional measures to protect human rights defenders pursuing accountability, most notably, Helen Mack, the sister of the anthropologist Myrna Mack, who was murdered for documenting the army’s use of scorched earth tactics, displacement, and massacres of indigenous people.96 By 2020, the protesters were in the tens of thousands and they actually set fire to the Congress in protest at budget cuts affecting COVID health care and education, as well as continued corruption.97 Protests will continue to occur throughout the region and hence the challenge is whether states will manage to pursue social order in a manner that will respect human rights – whether pro homine peace may become a regional norm. On this issue, the Inter-American Court of Human Rights will have a role to play, as discussed further in Chapters 5, 6, and 7. The next section presents external dimensions of peace.

94 Sandra Cuffe, “Thousands of Guatemalans Protest in Favor of Corruption Commission”, The Los Angeles Times (14 January 2019), https://​www​.latimes​.com/​ world/​la​-fg​-guatemala​-protests​-20190114​-story​.html (accessed 15 July 2020). 95 Carrie Seay Fleming, “Democracy Under Assault: Guatemala Attempts to Silence Eco-Populists”, New Security Beat (4 March 2019), https://​www​.newsecuritybeat​.org/​ 2019/​03/​democracy​-assault​-guatemala​-attempts​-silence​-eco​-populists/​ (accessed 15 July 2020). 96 I/A Court H.R., Case of Mack Chang et al. v. Guatemala. Provisional Measures. Order of the Inter-American Court of Human Rights of June 24, 2020. 97 Associated Press, “Guatemala protests set Congress on fire during budget Protests”, The Guardian (22 November 2020), https://​www​.theguardian​.com/​world/​ 2020/ ​ n ov/ ​ 2 2/ ​ g uatemala​ - protesters​ - set​ - congress​ - on ​ - fire ​ - during ​ - budget ​ - protests (accessed 30 November 2020).

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3.3

NEGATIVE PEACE: EXTERNALLY ORIENTED PEACE, PACIFIC SETTLEMENT OF DISPUTES, PEACEFUL COEXISTENCE, NUCLEAR DISARMAMENT, PEACE MISSIONS, AND TERRITORIAL PEACE

3.3.1

Universalist Models of Peace as an End and a Means

David Law categorizes constitutions which declare allegiance to the supranational legal order as pursuing a universalist archetype that links international law to constitutional law in order to provide increased legitimacy to the state.98 Alejandro Chetman explains that Latin American constitutions that underwent liberal reforms in the 1980s and 1990s embraced universalist language in part to gain legitimacy among the international community and attract investment.99 However, the radical constitutional reforms linked to the Bolivarian Republics of Venezuela, Ecuador, Bolivia, and Nicaragua also incorporated universalist aims in keeping with their worldview. Hence, peace is both an international and national constitutional concept that fits well within the universalist archetype of both the liberal and radical/21st-century socialist models of constitutions.100 Suriname’s 1987 Constitution, Article 7, provides a fine example of combining peace as both an end and means within the external context: The Republic of Suriname promotes the participation in international organizations with a view to establishing peaceful coexistence, peace and progress for mankind. The Republic of Suriname promotes the solidarity and collaboration with other peoples in the combat against colonialism, neo-colonialism, racism, genocide and in the combat for national liberation, peace and social progress. The Republic of Suriname promotes the development of the international legal order and supports the peaceful settlement of international disputes.

In addition, the Constitution’s preamble recognizes peaceful coexistence to be one of the bases for collaboration with one another and all the peoples of the world. Suriname was quite active in addressing the Venezuelan crisis in the context of regional peace in discussions within the OAS and other forums, calling for states to work together to find a solution to the displacement and David Law, “Constitutional Archetypes”, 95 Texas Law Review 153 (2016). Alejandro Chetman, “International Law and Constitutional Law in Latin America” in Conrado Hübner Mendes and Roberto Gargarella (eds.), The Oxford Handbook of Constitutional Law in Latin America (OUP 2020), https://​ssrn​.com/​ abstract​=​3207795 (accessed 2 March 2021). 100 Colin Crawford and David Bonilla, Constitutionalism in the Americas (Edward Elgar Publishing 2018). 98 99

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humanitarian crisis impacting the region. The Venezuelan 1999 Constitution preamble calls for peaceful cooperation among nations. In the UN Security Council debate on the situation in Venezuela in 2019, Suriname reiterated its principled position, based on the UN Charter and the Constitution, of resort to dialogue to strive for peaceful coexistence in national and international conflicts, support for the principle of non-interference in domestic affairs, and respect for sovereignty and territorial integrity.101 In like manner, Paraguay is committed to the universal order in its 1992 Constitution, Article 145: “The Republic of Paraguay, in conditions of equality with other States, admits a supranational juridical order which guarantees the enforcement of human rights, of peace, of justice, of cooperation and of development, in political, economic, social and cultural [matters].” It is committed to realistic peace, as Article 144 renounces war but sustains the principle of legitimate defense, in keeping with the UN and OAS Charters, and Article 37 recognizes the right of conscientious objection. The Guatemalan 1985 Constitution, Article 149, gives another example of universalist orientation: Of the International Relations Guatemala will establish norms for its relations with other States, in accordance with the international principles, rules, and practices with the purpose of contributing to the maintenance of the peace and the freedom, for the respect and defense of human rights, [and] the strengthening of the democratic processes and international institutions that guarantee the mutual and equitable benefit between the States.

Ecuador also proclaims a regional and universalist orientation and identifies participation in the international system as contributing to peace in its 2008 Constitution, Article 276(5): “To guarantee national sovereignty, promote Latin American integration and boost strategic insertion into the global context, which contributes to peace and a democratic, equitable world system.” Furthermore, Article 416 recognizes peaceful coexistence and peace as an aim of foreign relations and commits to peaceful dispute resolution. Uruguay has an affirmation of the use of peaceful means of dispute settlement, including arbitration with respect to differences arising related to international treaties in Article 6 of its 1966 Constitution: “In international treaties which the Republic may conclude there shall be proposed a clause to the effect that all differences which may arise between the contracting parties shall be settled by arbitration or other peaceful means.”

101 Statement by Suriname, “Press Release: Venezuelans Must Resolve Crisis Themselves, Security Council Delegates Agree while Differing over the Legitimacy of Contending Parties”, UN Security Council, 8472nd Meeting SC/137/19 (26 February 2019), https://​www​.un​.org/​press/​en/​2019/​sc13719​.doc​.htm (accessed 17 July 2020).

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The 1982 Constitution of Honduras, Article 274, sets forth that armed force will participate in international peace missions. Article 15 declares support for the principles and practices of international law, which promote solidarity and self-determination of peoples, non-intervention and the strengthening of universal peace and democracy, including customary international law, the right to self-determination, and reference to fraternity/solidarity. Furthermore, Honduras recognizes the validity and obligatory execution of arbitral and judicial sentences of an international character. This is a very unique provision within a region marked by the tradition of the Calvo Clause. The Brazilian 1988 Constitution preamble lists the peaceful solution of disputes as one of the aims of the Constitution and Article 4 sets forth that the defense of peace will be one of the governing principles for its foreign relations, hence it is an externally oriented peace. Brazil aspires to be a world leader in global affairs and thus prides itself on its international diplomacy; the external orientation matches its aim for an increased protagonist role in international affairs.102 Bolivia’s 2009 Constitution, Article 267, refers to the eternal conflictive issue of access to an ocean but is committed to non-violent dispute resolution: “The effective solution to the maritime dispute through peaceful means and the full exercise of sovereignty over that territory is a permanent and inalienable objective of the Bolivian State.” Article 255 recognizes the principle of peaceful resolution of conflicts. Bolivia sought resolution of its need for access to the Pacific Ocean by filing a case with the ICJ; however the Court held that Chile had no obligation to negotiate access to the Pacific Ocean, leaving both countries without a solution to their dispute.103 Cuba has a new Constitution, adopted in 2019, which contains the broadest, most thorough references to peace in the region. This is clearly linked to its history of being subjected to American intervention as Article 16 recognizes the state’s aspiration for a dignified, true, and valid peace for all states, based on the respect for independence and sovereignty of peoples and the right to self-determination, expressed in the liberty to choose their own political, economic, social, and cultural system, as an essential condition to guarantee pacific coexistence among nations. Article 16 also confirms the state’s willingness to strictly observe the principles and norms of international law, in particular equality of rights, territorial integrity, the independence of states, the prohibition on the threat or use of force in international relations, interna-

102 Sean W. Burges, Brazil in the World: The International Relations of a South American Giant (Manchester University Press 2020). 103 Obligation to Negotiate Access to the Pacific Ocean, Bolivia v. Chile, ICJ (2018).

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tional cooperation for the benefit of equitable and mutual interest, the pacific solution of conflicts based on equality, and other principles proclaimed in the UN Charter. It promotes the unity of all Third World countries and condemns imperialism, the enemy of peace and of peoples, fascism, colonialism, neocolonialism or other forms of oppression, in any of its manifestations. It rejects racism and discrimination and condemns the direct or indirect intervention in internal or external affairs of any state, armed aggression, economic, commercial and financial blockage, or any other form of economic or political coercion, physical violence against persons who are residents of other countries, or other types of infringement or threat to the integrity of states and of the political, economic, and cultural elements of nations. It confirms the international crime of wars of aggression and conquests and recognizes the legitimacy of battles for national liberation and armed resistance to aggression, and the international duty to show solidarity with peoples who fight for their liberation and self-determination. It promotes general and complete disarmament, rejects the existence, proliferation, or use of nuclear arms, mass extermination or other similar effects, and cyberwar, as well as the development and use of new weapons, including autonomous, which violate international humanitarian law. It repudiates and condemns terrorism in all of its manifestations, in particular state terrorism. It seeks to maintain friendship with countries having a different political, social, and economic system, respect their sovereignty, observe norms of coexistence between states, and promote multipolarity within international relations as an alternative to domination and political, financial, and military hegemony, which threaten peace, independence, and sovereignty of peoples. Furthermore, in Article 19, Cuba guarantees asylum for persons persecuted on account of their fight for peace, recognizing individual action on behalf of peace. Similarly, Nicaragua’s Constitution, Article 42, sets forth that refuge and asylum are to be granted only to those who are persecuted in their struggle for democracy, peace, justice, and human rights. Argentina’s Constitution, Section 27, highlights the commitment of peace through trade (preceding the establishment of MERCOSUR): “The Federal Government is under the obligation to strengthen its relationships of peace and trade with foreign powers, by means of treaties in accordance with the principles of public law laid down by this Constitution.” In comparison, the 1966 Constitution of Barbados, Article 79 A, grants the Attorney General direct prosecution of cases involving publications calculated to interfere with the peaceful relations of Barbados with foreign states, thereby indicating use of peace as an externally oriented limitation of expression by the state to preserve international harmony.

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3.3.2

Nuclear Disarmament and Territorial Peace

In spite of the internal challenges to peace, Mexico has been a forerunner in externally oriented peace, as Mexican diplomat Alfonso García Robles won the Nobel Peace Prize in 1982 for his support for the Treaty of Tlatelolco (1969), which established Latin America and the Caribbean as a nuclear-free zone. It includes all 33 states of the region. This treaty won the 2013 Future Policy Award for sustainable disarmament as it prohibits the testing, manufacture, or acquisition of nuclear weapons. Article 27 of the Mexican 1917 Constitution sets forth that nuclear energy will only be used for peaceful goals. In like manner, Nicaragua’s Constitution has a broad commitment to externally oriented peace, ranging from sub-regional unity to prohibition of nuclear weapons in Article 9: Nicaragua firmly defends Central American unity, supports and promotes all efforts to achieve political and economic integration and cooperation in Central America as well as efforts to establish and preserve peace in the region. Nicaragua bases its international relations on friendship, complementarity and solidarity among the peoples and reciprocity among States. Consequently, all forms of political, military, economic, cultural, or religious aggression and the interference in the internal affairs of other States are forbidden and proscribed. Nicaragua recognizes the principle of the peaceful settlement of international disputes through the means offered by international law and prohibits the use of nuclear weapons and other means of mass destruction in domestic and international conflicts.

Some countries explicitly articulate a concept of territorial peace, ranging from prohibition of foreign military bases to recognition of indigenous communal territories. However, in what is perhaps the most unique normative iteration of peace within the region, Panama’s 1972 Constitution allows peaceful transit of vessels in Article 315: “The Panama Canal constitutes an inalienable patrimony of the Panamanian Nation; it shall remain open to peaceful and uninterrupted transit of vessels from all Nations and its use shall be subject to requirements, and conditions established by this Constitution, the Law and its Administration.” Venezuela’s 1999 Constitution, Article 13, sets forth a prohibition of foreign military bases within its territory: “The geographical space of Venezuela is an area of peace. No foreign military bases or facilities having purposes that are in any way military shall be established within such space by any power or coalition of powers.” Venezuela has been accused by Colombia and the United States of providing bases to former FARC combatants accused of engaging in narco-trafficking and it has accused Colombia of providing a base to US-supported opponents to the Maduro regime, resulting in militarization of

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the border.104 The fear of misuse of territory for armed intervention is the most significant factor in a lack of trust between the neighboring states. Similarly, Ecuador’s 2008 Constitution, Article 5, sets forth a like standard: “Ecuador is a territory of peace. The establishment of foreign military bases or foreign facilities for military purposes shall not be allowed. It is forbidden to transfer national military bases to foreign armed or security forces.” In fact, Ecuador has had bases held by non-state actors, such as FARC, and currently narco-traffickers, resulting in marches by the people protesting violence and calling for the right to peace in the border territories.105 Article 579 addresses peaceful coexistence as a collective right of indigenous people in relation to their enjoyment of territory: “To keep and develop their own forms of peaceful coexistence and social organization and creating and exercising authority, in their legally recognized territories and ancestrally owned community lands.” The Inter-American Court of Human Rights upheld the obligation of the state to consult and receive prior free, informed consent of the indigenous tribe before granting concessions to companies seeking to exploit natural resources from indigenous territory in the case of Kichwa Indigenous People of Sarayaku v. Ecuador (2012).106 Similarly, the Constitutional Court of Ecuador held the Chevron Oil Company liable for 9.5 billion US dollars for repair of social and environmental damage within indigenous territories.107 Regarding the situation of indigenous people in Paraguay, in the case of the Indigenous Xákmok Kásek Community v. Paraguay (2010), the Inter-American Court of Human Rights called for the establishment of a judicial authority to resolve land disputes:108 Consequently, in accordance with Article 2 of the American Convention, within two years, the State must adopt in its domestic law the necessary legislative, administrative and any other measures to establish an effective system for indigenous peoples

104 “Containing the Border Fallout of Colombia’s New Guerilla Schism”, International Crisis Group (20 September 2019), https://​ www​ .crisisgroup​ .org/​ latin​ -america​ - caribbean/​ a ndes/​ c olombiavenezuela/​ b 040​ - containing​ - border​ - fallout​ -colombias​-new​-guerrilla​-schism (accessed 28 July 2020). “Venezuela starts Military Exercises along the Colombian Border”, The Buenos Aires Times (11 September 2019), https://​www​.batimes​.com​.ar/​news/​latin​-america/​venezuela​-starts​-military​-exercises​ -along​-colombia​-border​.phtml (accessed 28 July 2020). 105 “Ecuador marcha por un espacio de derecho a integración y paz”, El Tiempo (6 July 2018), https://​www​.eltiempo​.com/​mundo/​latinoamerica/​ecuador​-marcha​-por​-el​ -derecho​-a​-la​-integracion​-y​-a​-la​-paz​-240444 (accessed 26 July 2020). 106 I/A Court H.R., Case of Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and Reparations. Judgment of June 27, 2012. Series C No. 245. 107 Sentencia 230-18-SEP-CC del 27-06-2018. 108 I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of August 24, 2010. Series C No. 214, para. 310.

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to claim their ancestral or traditional lands, which makes it possible to implement their right to property. This system must establish substantive norms that guarantee: (a) that the importance to the indigenous peoples of their traditional lands is taken into account, and (b) that it is not enough that the land claimed is owned privately and is being exploited rationally to reject any land claim. Furthermore, this system must establish that a judicial authority has the competence to decide the disputes that arise between the right to property of private entities and that of the indigenous peoples.

The issue of territorial dimensions of peace is one in which the Inter-American Court of Human Rights had demonstrated special competence in delineating the pursuit of pacific solutions to internal conflicts and the importance of upholding a human rights perspective. Nevertheless, it is these cases that prove among the most difficult to attain compliance, due to political resistance.109

3.4 CONCLUSION The recognition of peace within Latin American constitutions is both pluralistic and holistic. There are references to the principle of non-aggression and non-interference or renunciation of war, allegiance to the pacific solution of conflicts, peaceful coexistence, peaceful cooperation, participation in peace missions, regional or global integration, or participation in the supranational juridical order. It serves both as a condition for the enjoyment of rights, such as assembly, association, speech, writing, or petition, or as the foundation for full enjoyment of human rights or vice versa, including one jurisdiction linking peaceful coexistence to recognition of indigenous collective land rights. The principal role of the Inter-American Court of Human Rights in relation to negative peace is its issuance of provisional measures seeking to protect human rights defenders and its correction of the various iterations of oppressive peace, including the use of amnesties. The next chapter discusses the justiciability of peace as a right or duty and culture of peace initiatives in the context of recognition of constitutional positive peace iterations.

109 G.C. Braga Navarro, “The Struggle after the Victory: Non-compliance in the Inter-American Court of Human Rights’ Jurisprudence on Indigenous Territorial Rights” Journal of International Dispute Settlement (November 2018).

4. The contribution of constitutional positive peace iterations 4.1 INTRODUCTION The nature of peace as a justiciable right or duty (or both) is recognized within the region, at times taking individual form, other times appearing as pertaining to the collective society, group, or state. This chapter presents the different facets of constitutional iterations of positive peace and explores its interrelationship with human rights. Furthermore, there is presentation of the increased attention to culture of peace initiatives through education and use of alternative dispute resolution in labor disputes. Although there are three states which recognize the right to peace within the Constitution (Bolivia, Colombia, and Ecuador), the obligation to guarantee peace is perhaps even more intriguing. Four constitutions place the duty on society. Venezuela’s 1999 Constitution, Article 132, identifies a societal obligation towards social peace: “Everyone has a duty to fulfill his or her social responsibilities and participate together in the political, civic and community life of the country, promoting and protecting human rights as the foundation of democratic coexistence and social peace.” Similarly, Bolivia’s 2009 Constitution, Article 108, recognizes that Bolivians have a duty “to defend, promote, and contribute to the right to peace, and to encourage a culture of peace.” Haiti’s 1987 Constitution, Article 52(1)(k), sets forth a civic duty to work to maintain peace. Ecuador’s 2008 Constitution, Article 3, sets forth that the state has duty to guarantee the right to peace and Article 83(4) also recognizes a civic duty to cooperate in keeping the peace and safety. Colombia’s 1991 Constitution, Article 22, and Guatemala’s 1985 Constitution in its Preamble and Article 2, recognize the obligation of the state to provide peace.

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THE JUSTICIABILITY OF PEACE AS A RIGHT AND/OR DUTY

4.2.1 Colombia Colombia has had the longest history of internal violence in the modern era within the region, commencing with the ten-year period of La Violencia between the Conservatives and the Liberals dating from the assassination of populist leader Jorge Gaitán in 1948, followed by anti-communist repression in the 1960s, leading to an internal conflict spanning decades involving the FARC, Ejército de Liberación Nacional (ELN – National Liberation Army), paramilitaries, and the national army. Perhaps because of this history, it is the country which actually has the strongest constitutional commitment to peace within the region. Franklin Moreno Millan stated that the 1991 Constitution was the result of negotiation with armed groups and the general dissatisfaction within the society that the previous Constitution did not address social needs, hence the 1991 Constitution is known as the “Peace Constitution.”1 Both the preamble and Article 2 guarantee peaceful coexistence and peace to the citizenry. In addition, Article 22 specifically sets forth that “[p]eace is a right and a duty of which compliance is mandatory.” Hence, peace is considered to be a synthesis right and given a triple juridical value: (1) as a societal value, foundation of the state, and human rights (preamble), as an essential aim that guides the judicial order;2 (2) as a principle that should direct the actions of the public authorities (Articles 2 and 3); and (3) as a constitutional right Article 22) that determines the action of authorities and individuals. There is a mechanism to process collective claims, the acción popular, and persons may also file a tutela only if the claim is also linked to other constitutional rights.3 Christian Manelic Vidal León opines that the drafters of the 1991 Constitution intended the right to peace to be considered a fundamental synthesis right, given that its guarantee would enable the enjoyment of civil and political 1 Franklin Moreno Millán, “El concepto de paz en la constitución política de Colombia de 1991: Reconstruccion dialéctica de su significado a partir de la jurisprudencia de la corte constitucional” 21(2) Revista de Derecho Universidad Católica del Norte (2014) pp. 305–346. 2 “Reserva de Ley Estatutaria-Facultades del gobierno en estados de excepción”, Acción de constitucionalidad, Sentencia No. C-055/95, Corte Constitucional de Colombia, Bogotá, 1995 cited by Christian Manelic Vidal León, El derecho humano a la paz y su aplicación en los sistemas jurídicos nacionales y en el derecho internacional (Universidad Andina 2011). 3 “Derecho a la Paz/Derecho Colectivo/Acción Popular/Acción de Tutela – Improcedencia”, Acción de Tutela, Sentencia No. T-08, Corte Constitucional de Colombia, Bogotá, 1992.

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rights.4 Indeed, the Court has held that peace is a supreme interest for society, given that its absence implies the degrading of the human being (including violation of human dignity, the main guideline of the legal system) and the rupture and uprooting of society, endangering the very existence of organized society.5 Millan describes the right to peace in the Constitution as a substantive right, with a dual quality of value and principle. As a value it represents one of the most precious aims of the order; as a principle, it sets forth interpretation and creation of norms and can be applied directly within concrete cases.6 The Constitutional Court has set forth that peace has multifaceted forms of expression: an aim or purpose within domestic law and international law, an ideal state and ideal that the legal system should seek,7 a protocol for action in conflict situations, a collective right or protocol for action, a fundamental or subjective right, and a civic duty/constitutional obligation.8 The Constitutional Court, referring to the internal ambit, recognized peace as a fundamental value (such as the absence of war or conflict), as a principle or fundamental collective right or protocol for action, and as a duty necessary for the exercise of

4 “Mínimo de paz y derecho a la paz”, Acción de Tutela, Sentencia No. T-439, Corte Constitucional de Colombia, Bogotá, 1992. 5 Corte Constitucional de Colombia, Sentencia C-695/02. Clarification of Vote by Eduardo Montealegre Lynett. 6 Moreno Millan, supra note 1. 7 Corte Constitucional de Colombia, Sentencia C-048/2001. Presiding Judge Eduardo Montealegre Lynet. 8 Corte Constitucional. Sentencia C-353, 1994; Corte Constitucional. Sentencia C-045, 1996; Corte Constitucional. Sentencia C-339 de 1998; Corte Constitucional. Sentencia C-340 de 1998; Corte Constitucional. Sentencia C-328 de 2000; Corte Constitucional. Sentencia C-991 de 2000; Corte Constitucional. Sentencia C-048 de 2001; Corte Constitucional. Sentencia C-695 de 2002; Corte Constitucional. Sentencia C-644 de 2004; Corte Constitucional. Sentencia C-928 de 2005; Corte Constitucional. Sentencia C-367 de 2006; Corte Constitucional. Sentencia C-370 de 2006; Corte Constitucional. Sentencia T-1025 de 2007; Corte Constitucional. Sentencia C-333 de 2012; Corte Constitucional. Sentencia C-579 de 2013; Corte Constitucional. Sentencia T-008 de 1992; Corte Constitucional. Sentencia T-102 de 1993; Corte Constitucional. Sentencia C-225 de 1995; Corte Constitucional. Sentencia C-290 de 1995; Corte Constitucional. Sentencia C-045 de 1996; Corte Constitucional. Sentencia C-328 de 2000; Corte Constitucional. Sentencia C-991 de 2000; Corte Constitucional. Sentencia C-578 de 2002; Corte Constitucional. Sentencia C-689 de 2002; Corte Constitucional. Sentencia T-249 de 2003; Corte Constitucional. Sentencia T-598 de 2005; Corte Constitucional. Sentencia C-928 de 2005; Corte Constitucional. Sentencia C-370 de 2006; Corte Constitucional. Sentencia T-102 de 1993; Corte Constitucional. Sentencia C-045 de 1996; Corte Constitucional. Sentencia C-991 de 2000; Corte Constitucional. Sentencia C-048 de 2001; Corte Constitucional. Sentencia C-578 de 2002; Corte Constitucional. Sentencia C-370 de 2006.

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other rights.9 The Court has held that the civic duty is held by public authorities and all inhabitants of the territory, according to Article 95(6):10 The quality of being Colombian enhances all members of the national community. Everyone has the duty to exalt and dignify it. The exercise of the rights and liberties recognized in this Constitution implies responsibilities. Every individual is obliged to obey the Constitution and the laws. The following are duties of the individual and of the citizen: 4. To defend and propagate human rights as the foundation of peaceful coexistence; 6. To strive toward achieving and maintaining peace.

The Constitutional Court has stated that all the efforts of society should be directed towards the achievement of peace. Nevertheless, it observes that the state has the greatest role, given that the political system is in charge of evaluating the conditions to make the achievement of peace possible, while the judicial system has the task of adjusting its instruments of analysis – legal interpretation and dogmatism – towards this objective. The Constitutional Court has identified a type of minimum scope and maximum scope of the right to peace within the legal system and it has accepted peace as a national and international collective aim and may be considered part of the constitutional block in accordance with Article 9.11 As explained by Judge Diana Fajardo

9 Corte Constitucional. 2 de julio de 1992. “Proceso de tutela T-1088 adelantado por el señor Luis Humberto Rolon Maldonado contra las Fuerzas Militares de Colombia y los Organismos de Seguridad del Estado con sede en el Departamento de Norte de Santander”. Sentencia T-439 de 1992. See also Sentencia C-160/17. 10 Corte Constitucional. 6 de julio de 1995. “Demanda de inconstitucionalidad contra la Ley 104 de 1993 por la cual se consagran unos instrumentos para la búsqueda de la convivencia, la eficacia de la justicia y se dictan otras disposiciones”. Sentencia C-283 de 1995. Corte Constitucional. 13 de julio de 2006. “Demanda de inconstitucionalidad contra los artículos 2, 3, 5, 9, 10, 11.5, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 34, 37 numerales 5 y 7, 46, 47, 48, 54, 55, 58, 62, 69, 70 y 71 de la Ley 975 de 2005 por la cual se dictan disposiciones para la reincorporación de miembros de grupos armados organizados al margen de la ley, que contribuyan de manera efectiva a la consecución de la paz nacional y se dictan otras disposiciones para acuerdos humanitarios, y contra la ley en su integridad”. Sentencia C-370 de 2006. 11 Corte Constitucional de Colombia, Sentencia C-370/06. Magistrados ponentes: Manuel José Cepeda Espinosa, Jaime Córdoba Triviño, Rodrigo Escobar Gil, Marco Gerardo Monroy Cabra, Álvaro Tafur Galvis y Clara Inés Vargas Hernández. See Sentencia C-027/18 (April 2018).

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Rivera, in Case C-007/18, the constitutional system is designed as serving the aim of peace:12 95. In the judgment C-379 2016 the Constitutional Court recalled, in the beginning of its exposition, the famous essay by Immanuel Kant, Perpetual Peace, to explain that a Constitution based on principles of liberty, equality, and dependency on a legal order is a necessary presumption for overcoming armed conflicts and achievement of peace. Thus it underscored, the “betting on the law, in particular constitutional”, in the sense of replacing violence by institutional mechanisms for conflict resolution ... 97. The constitutional process of 1991 was thus based on the democratic opening and gave way to an inclusive, participatory scene, oriented towards the creation of a stable institutionalization based on the concept of Law as a pacific, primordial mechanism for conflict resolution, as well as respect for human dignity, source of human rights, and ultimate criteria of legitimacy of the State. 98. As a result, in the 1991 Constitution, peace and the aspiration of a just order appear, beginning in the Preamble, as aim of the political organization; and article 2 as the ultimate aim of the State, indivisible and necessary for democracy and the constitutional state ... 102. The idea of peace linked to construction of a just, democratic order, respectful of rights, was presented in the 1991 Constitution. Thus, the Preamble – of which its normative value has been underscored by this Court – consecrates the purpose of fomenting pacific coexistence and article 2 defines it as an aim of the State. 103. As a value, peace is the foundation of the legal and political order and radiates all the constitutional norms, with different concrete manifestations within the Constitution. Within the cited jurisprudence, the Court has indicated that it considers peace, as a minimum, as the absence of conflicts; while on a maximalist plane (or optimal) it refers to the group of necessary conditions for the enjoyment of human rights and the construction of democracy. Within conflict scenarios, peace manifests itself as the aspiration for humanization of conflict by way of international humanitarian law. 104. Article 22 also defines peace as right and duty. From this perspective, which can be called jus fundamental (or fundamental rights), peace is an individual right, of a multidimensional nature; as well as a collective right, social welfare budget and public construction. As a duty, it is not a desire, a declaration or a political aspiration, but rather entails true obligations for the authorities, society and individuals. In addition, from this perspective, it is part of the duties of citizens, in accordance with article 95(6) (emphasis in original).

12 C-007/18 (1 March 2018) para. 87. The incorporation of a system of transitional justice implies the adoption of a wide and complex group of instruments or mechanisms oriented towards satisfying the right to peace – by way of overcoming generalized violence, the enjoyment of rights by victims, the strengthening of the rule of law and the achievement of reconciliation.

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Also in Case T-102 of 1993, Judge Carlos Gaviria Díaz recognized the pluralistic nature of the right to peace in the forms of its exercise: It is a right of autonomy prohibiting interference of public power and individuals, which in turn claims a correlative legal duty of abstention; a right of participation, in the sense that its holder is empowered to intervene in public affairs as an active member of the political community; a power of demand against the State and individuals to claim compliance with obligations to do. As a right that belongs to every person, it implies for each member of the community, among other rights, that of living in a society that excludes violence as a means of conflict resolution, that of preventing or denouncing the execution of acts that violate the rights of human beings and to be protected against any act of arbitrariness, violence or terrorism. Peaceful coexistence is a basic purpose of the State and must be the ultimate motive of the forces of the constitutional order. Peace is also a budget for the democratic process, free and open, and a necessary condition for the effective enjoyment of fundamental rights.

Nevertheless, the Court leaves open the possibility for limitation of the right to peace in relation to other umbrella values, foreshadowing legal disputes regarding the application of amnesties and remedies in the context of the Colombian Peace Accords, which remain problematic at present:13 106. Peace is not an absolute value and that, on certain occasions, it must be weighted with other values of constitutional rank, such as the victims’ rights to truth, justice, reparation and non-repetition of violent events.14

Case C-579/13 called for a holistic approach to transitional justice: “For that it is necessary to reach a delicate balance to end hostilities and prevent the return to violence (negative peace) and consolidate peace by way of structural reforms and inclusive policies (positive peace).” In Case C-027/18 (April 18, 2018) Judge José Fernando Reyes Cuartas offered a comprehensive overview of the scope of the right to peace in terms of obligations: In the attempt to achieve peace of satisfaction, the 1991 National Constituent Assembly in a show of pacifism, reconciliation and reinstatement welcomed former

13 Rebekka C. Friedman, Nelson Camilo Sanchez and Eric Wiebelhaus-Brahm, “Securing the Peace and Promoting Human Rights in Post-Accord Colombia” in James Meernik, Jacqueline H.R. DeMeritt, and Mauricio Uribe Lopez (eds), As War Ends: What Colombia Can Tell Us about the Sustainability of Peace and Transitional Justice (Cambridge University Press 2019). 14 See Cases C-370 of 2006, C-579 of 2013 and C-379 of 2016, all related to the eventual demobilization of marginalized groups of the law or with the aspiration to cease the internal armed conflict.

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combatants from armed groups as their members, who along with the other assembly members recognized peace by capturing it within the text of the Constitution as a value, right and duty (preamble, articles 2, 22 and 95). Not only is it enshrined in the superior text but in many international human rights treaties that make up the constitutionality block (art. 9). As a common objective of humanity, the Court determined that the 1991 Charter is cataloged as a “Constitution for peace”, having a triple character, namely: i) value of society, foundation of the State and human rights (preamble Constitution); ii) essential purpose that radiates the legal system and principle that directs the action of the State (art. 2 superior); and iii) a right and a duty of mandatory compliance (arts. 22 and 95 superiors), which directs the action of individuals and authorities. Hence, it would have been argued that citizens and authorities must take effective measures not only to prevent but also to eliminate acts of breach of peace. This Court also found that the purpose of the constitutional State is “the achievement of peace and coexistence through the legal order and protection of the fundamental rights of citizens ...” Thus, it is clear that the commitment of law, and in particular the constitutional right, is to replace the conflict based on the violent route, by peaceful and institutional mechanisms of dispute resolution. The Executive Branch has a social duty to achieve and maintain the peace that lies in the Executive Branch, as it is responsible for advancing the essential procedures to ensure the safety of the inhabitants of the national territory. Numeral 4 of article 189 of the Constitution, attributes to the President of the Republic to preserve public order throughout the territory and restore it where it is disturbed. Then it can adopt different types of measures that oscillate between peaceful conflict solutions and the use of actions such as force, in addition to the declaration of internal commotion or external warfare (arts. 212 and 213 above). However, this Court has said that: “The peaceful instruments for conflict resolution are better suited to humanist philosophy and the broad normative deployment around peace that the Constitution advocates. Hence, the parties in dispute, particularly in those conflicts whose continuation endangers the maintenance of peaceful coexistence and national security, must strive to find peaceful solutions that see the individual as the ultimate goal of the State. In this regard, this Court had already said that the right to peace implies for each member of the community, among other rights, that of living in a society that excludes violence as a means of conflict resolution, of preventing or denouncing the execution of acts that violate human rights and that of being protected against any act of arbitrariness, violence or terrorism. And, in another pronouncement, the Court pointed out that the right and the duty to peace oblige the constitutional judge to expel laws that stimulate violence and that move away the possibilities of converting armed conflicts into political conflicts” ... In this sense, the constitutional jurisprudence has determined that the armed conflict limits to a great extent the material possibilities of enjoyment of the rights, especially those of the victims thereof, so that an acceptable standard of democratic exercise of these rights and, in a more general way, of the validity of the constitutional State itself, without overcoming the confrontation that affects the aforementioned minimum core of the right to peace. This allows us to consider, without ambiguity, that peace is a determining and transversal axis of the Constitution, as well as an object of weighting against the other defining elements of the Constitution ... The Court signals that peace is not only the opposite of war, but also inter-state cooperation, mutual appreciation

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between individuals within a nation, and mindfulness of the value of security. It is equally a context of tranquility within the development of human activities. Peace is the achievement of the enjoyment of liberty and the social and individual actions.15 The intrinsic concept within peace is solidarity for the construction of a state in conditions of equality and security. There are various roads to peace: (1) Inter-State cooperation, (2) Mutual appreciation between individuals within a nation, (3) awareness of the value of security, and (4) the good use of liberty within social order.16

The Constitutional Court has addressed the state’s external obligations regarding peace as well in Sentencia C-214/17, April 5, 2017 on the peacekeeping accord with the UN: This Tribunal has pronounced itself on the different commitments Colombia has undertaken pertaining to the prohibition of war and the search for pacific solution to conflicts. In effect, Sentencia C-287 de 200217 indicated the following: It should be mentioned that Colombia has ratified other international instruments which seek the essential aim of the maintenance of peace such as the Treaty Renouncing War or “Paris Pact” of 1928, The American Treaty of Pacific Solution (Pact of Bogotá), and including the UN and OAS Charters, the purposes and aims are also present within the OAS. Hence “the search for peace is an objective that always existed among States and to which Colombia has always been attentive and provided necessary collaboration or ratifying different international instruments that seek this.”18 From this is derived the obligation of the State to maintain peace, not only within the Colombian territory, but also within the international scene. This Court has not explicitly addressed the prohibition of war and pacific settlement of disputes within the international ambit, nevertheless, the legal development of such principles the Court has developed the obligation of the State to prioritize the peaceful settlement of disputes which is intrinsically related to the prohibition of war.

Specifically, the Constitutional Court has recognized the principle of non-intervention in internal affairs of other states, C-187 (1996),19 C-249

15 Lina M. Escobar, Margarita Cárdenas-Poveda, Vicente F. Benítez R. and Sebastián Mantilla-Blanco, El Derecho a la Paz. ¿Una Norma programàtica, con tendencia a lo normativo o a lo semántico? (Editorial Pontifica Universidad Javeriana 2011) pp. 141–168. 16 Corte Constitucional de Colombia, Sentencia C-876/2002. Magistrados ponentes: Álvaro Tafur Galvis, Marco Gerardo Monroy Cabra, Alfredo Beltrán Sierra, Jaime Córdoba Triviño, Jaime Araujo Rentera, Clara Inés Vargas Hernández, Eduardo Montealegre Lynett, Rodrigo Escobar Gil y Manuel José Cepeda Espinosa. 17 M.P. Clara Inés Vargas Hernández. 18 Sentencia C-381 de 1996 M.P. Dr. Hernando Herrera Vergara. 19 M.P. Carlos Gaviria Díaz.

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(2004), C-269 (2014), and C-974 (2001).20 In Case T-102 (1993)21 the Court established peace as a participation right: One peculiar characteristic of this right is the multiple ways in which its exercise takes form. It is an autonomy right, to the extent to which it is tied to the interference of the public power and individuals, who claim, in turn, a correlative duty to abstention, a right of participation; in the sense that this is enabling the intervention in all public matters as an active member of the political community; a power to make demands before the State and individuals to claim the performance of duties.

The Constitutional Court has addressed Peace as a Means in Case C-379/16: In this respect, the Court has insisted that the consecration of the right – duty of peace in article 22 of the Constitution does not have an aspirational nature, on the contrary it is about a constitutional obligation of strong content, which applies to the State and society imposition of specific duties linked to the obligation to pacifically resolve disputes, which is defined as a condition for the effectiveness of the democratic principle. For this Tribunal, “Article 22 of the Constitution establishes that peace is a right and a duty of obligatory compliance. In its most simple conception, peace signifies the absence of war. In this sense, and in accordance with international norms, for the Court, the mandate of article 22 of the Constitution should be understood in a strong sense, that is not as a mere aspiration nor as the expression of a utopia, rather as a rule of conduct that should inspire all Colombians and should lead to the solution of conflicts in a pacific manner. In another opportunity, the Court indicated “From a Constitutional perspective, peace should not be understood as the absence of conflicts, instead as the possibility of treating them pacifically”. This call for the pacific solution of conflicts couples with an option to respect human dignity. In effect, the legitimacy of pacific solutions to conflicts which may be presented in the society are directly related to adequate debate and consensus which is achieved in a democratic ambit.” (Emphasis added)

The Court also describes peace as containing a progressive character: The constitutional jurisprudence has concluded in various decisions and in a stable manner, that peace is an objective of first order within the model of political organization adopted by the Constitution. To that end, it recognizes the triple condition of peace as a right, a duty, and fundamental value of this model, which carries with it direct obligations, at least three defined aspects: i) a state obligation of design and implementation of actions, norms, and public politics, directed at overcoming armed conflict, and in general, the achievement of pacific coexistence; (ii) a social obligation to prefer pacific solution as the exclusive and admissible constitutional mechanism for resolution of conflicts; and (iii) the progressive achievement of the

20 M.P. Álvaro Tafur Galvis. See also Sentencia C-328 de 2000 on the State’s obligation to prevent war. See also Sentencia C-579 de 2013. 21 M.P. Carlos Gaviria Díaz.

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pure effect of fundamental rights, which is a condition for peace and the democratic order, conceived from a material perspective.

The clarification vote of Judge Cristina Pardo Schesinger in Case C-527/17 explains the role of the constitutional judge in relation to peace: One of the consequences for a constitutional judge is to have to safeguard the primacy of a Peace Constitution, that guarantees it as a fundamental right, is to make interpretations in conformance with peace. This is, what a constitutional judge calls making an interpretation for and according to peace (pro et secundum pacem) not in contradiction to peace (contra pacem). The readings and applications of the Constitution, especially in the judicial hall, cannot promote or preserve violent conflict. On the contrary, there is a duty to understand the Constitution in such a way to promote pacific coexistence in which conflicts and tensions can be changed and resolved without violence. This duty to interpret according to peace, does not only derive from the Constitution. The “bloque de constitucionalidad” contemplates human rights rules and international humanitarian law specifically as a conscience and preservation of peace, such as end the effects of violent conflict when they are inevitable that also form part of the interpretive framework.

In 2016, President Juan Manual Santos was awarded the Nobel Peace Prize for negotiating the Peace Accords with the FARC, thereby ending the armed conflict and heralding a new era of peace in the region. However, the implementation of the Peace Accords is a challenge for the current government, notably as the state has chosen to pursue restorative justice rather than incarceration of offenders in order to guarantee progress towards realization of the right to peace. The soft accountability of the Special Jurisdiction for Peace has prompted debate due to its applying amnesties in the form of reduced sentences to members of the FARC.22 Additional problems include the recurrence of violence and assassinations of civic society leaders seeking social justice, indicating that the path to sustainable peace remains fragile. 4.2.2

Costa Rica

In terms of the justiciability of negative peace, Costa Rica is committed to principled peace as Article 12 of its 1949 Constitution permanently abolished the army. It serves as an example to the world of the possibility of pursuing

22 See the report on the La Jurisdicción Especial para la Paz (Special Jurisdiction for Peace – JEP) by the International Commission of Jurists, Jurisdicción Especial para la Paz: análisis a un año de su entrada en funcionamiento (June 2019), https://​www​ .icj​.org/​colombias​-transitional​-justice​-tribunal​-can​-do​-more​-to​-address​-victims​-needs​ -new​-icj​-report/​(accessed 15 July 2020). See Lisa Laplante, “A Balancing Act: The Right to Peace and Justice” 59 Harvard International Law Journal (2019).

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peaceful development through a strong commitment to education and health care instead of funding an army. Costa Rica engaged to promote peace within the region. Former President Óscar Arías won the Nobel Peace Prize in 1987 for his support of the Central American Esquipulas Peace Accords, which sought to restore democracy and peace to the region, which had been plagued by war through an approach focused on dialogue, common development, regional integration, and pluralistic democracy.23 This initiative was a rebuke to US interventionism, supported by the ICJ decision in the 1986 Nicaragua Case, and a marker of a new epoch oriented towards enjoyment of peace. Nevertheless, it is ironic that the Supreme Court of Costa Rica declared the government to be in breach of both the Constitution and the UN Charter when it issued press releases in 2008 giving moral support to the coalition of countries engaged in belligerent actions in Iraq and called for measures to be taken to remove Costa Rica from the list of countries allied with the coalition.24 In 2004, a Costa Rican law student brought a case against the government for its support of the United States in the Iraq War in the context of forming part of an alliance/coalition in the War on Terror. The Costa Rican Supreme Court recognized jurisdiction in the case, noting that any Costa Rican citizen could file a claim regarding alleged violation of the right to peace, as it is a fundamental value of collective interest of the society. The Supreme Court held that the policy was in violation of the constitutional supreme value of peace, as well as the UN Charter and OAS Charter, hence it nullified the support, thereby standing as a guardian of the global legal order. Magistrate Ernesto Jinesta Lobo of the Supreme Court opines that peace forms part of the conventionality control doctrine, which grants supremacy to international law and human rights at the national level.25 In his view, constitutional courts should guarantee the right to peace, fulfilling their role as peacemakers. Of interest, beyond the focus on negative peace, as the Court upheld the prohibition on the use of force, he notes that the Court characterized the right to peace as also pro23 Óscar Arías Sánchez, “Procedimiento para establecer la paz firme y dudadera en CentroAmérica (Acuerdo de Esquipulas II, 7 de agosto de 1987)” 88(2) Relaciones Internacionales (2015) pp. 81–90. Philip Travis, “Óscar Arías and the Treaty of Esquipulas,” Oxford Research Encyclopedia of Latin American History (OUP 2017). 24 Sentencia no. 18211 de Sala Constitutional de la Corte Suprema de Justica, 10 diciembre 2008. 25 Ernesto Jinesta Lobo, “El derecho fundamental a la paz en la jurisprudencia de la sala constitutional de Costa Rica”, Cumbre Integracion Para La Paz (11 April 2015), http://​embaj​adamundial​deactivist​asporlapaz​.com/​es/​prensa/​el​-derecho​-fundamental​ -la​-paz​-en​-la​-jurisprudencia​-de​-la​-sala​-constitucional​-de​-costa​-rica​-dr (accessed 15 July 2020); Roberto Zamora, “El largo camino hacia el derecho a la paz”, Delfino (September 2018), https://​delfino​.cr/​2018/​09/​el​-largo​-camino​-hacia​-el​-derecho​-a​-la​ -paz/​(accessed 15 July 2020).

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moting internal peaceful coexistence within a pluralistic society, underscoring violence, exclusion, poverty, insecurity, and inequality as violations of the right to peace that require a response. Hence, this demonstrates a potential for courts to enforce the right to peace at the domestic level. The Supreme Court’s decision presents an exposition of this approach:26 The Costa Rican people, tired of a history of war, conflicts, dictators, and marginalization of the benefits of development, freely and wisely chose to adopt peace as the guiding value of the society. On that date, the historic change crystallized, a new spirit was declared – a spirit of peace and tolerance. Since then, the barracks became a museum and the country adopted reason and law as mechanisms to resolve their internal and external problems. Focus is placed on human development and we declared our right to live in freedom and peace. On that day, this nation turned, we decided that whatever the cost we should run to fight for peace, it will always be better than the irreparable costs of war. This philosophy is what culminated in our country’s “Proclamation of perpetual neutrality, active and unarmed.” And the numerous international instruments signed as an extension of this rooted constitutional value, that serves as a constitutional parameter when analyzing the acts. This court has underscored the value of peace as a legal and political principle: “The laws, norms, and authoritative acts need not only to be promulgated by competent organs and proper procedure, but they should also be examined to be harmonious with the values and principles in the Constitution, such as peace.” Under these conditions, this Constitutional Tribunal understands that the “Proclamation on Perpetual, Active, and Unarmed Neutrality” of 1983 is a unilateral promise by Costa Rica in the international movement that came to develop the constitutional value of peace and, as a result, should be observed with good faith in a permanent manner by the Costa Rican Government, avoiding at all times, transgression of the rule of estoppel of public international law, or making an exception or nonobservance it in a specific case. It should be taken into consideration, in the concrete case, that above-mentioned Proclamation, in the “Neutrality Duties” sets forth: Loyal towards our secular vocation of peace, Costa Rica soberly takes on the duties inherent to its new condition of a perpetually neutral state. We promise not to initiate any war; to abstain from the use of force, including any threat or military reprisal; to abstain from participating in a war between third party states; to defend effectively our neutrality and independence with all possible material, legal, political, and moral recourses; and to practice a foreign policy of neutrality in order not to involve ourselves in real or perceived way in any belligerence. Furthermore, we promise to extend our duties of a perpetually neutral state to internal conflicts within states. The often-cited belligerent conflict, be it declared legitimate or illegitimate, from the Costa Rican perspective what is constitutionally incorrect is the use of force, outside of the framework of action of the United Nations. In summary, the Court deems there to have been a constitutional infraction in terms of the support of the use 26 Sala Constitucional de la Corte Suprema de Justicia de Costa Rica, Res. 2004-09992 (8 September 2004), https://​nexuspj​.poder​-judicial​.go​.cr/​document/​sen​-1​ -0007​-282712 (accessed 15 July 2020).

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of armed action outside of the framework regulated by the international system via the United Nations; it proves incompatible with the Costa Rican constitutional law. The Executive Power’s press releases of 19 and 21 March 2003 to give moral Support to the “Coalition” or “Alliance” of countries that engaged in belligerent actions in Iraq, are contrary to our constitutional order and the international system of the United Nations to which our country belongs, and thus are unconstitutional ... Measures should be taken to demand that the US Government remove our country from the list of allied countries to the Coalition or Alliance. The actions are contrary to the Constitution, to the international system of the United Nations and international law accepted by Costa Rica, we nullify the accord of the Executive Power of 19 March 2003, relating to the belligerent conflict against Iraq, and all actions related to this. The Government should take necessary measures so that the US Government removes our country from the list of allies to the “Coalition” or “Alliance” on the webpage of the White House, to give effect to the nullification.

A second case involved a mandatory legislative consultation of constitutionality filed by the Board of the Legislative Assembly on the draft accession to the Protocol on the prohibition of the use of asphyxiating toxic or similar gases and bacteriological means in war in which the Court expounded on the external dimension of peace:27 It follows that Costa Rica’s purpose of adhering to this Protocol represents a clear civilian manifestation of the Costa Rican people, their pacifist vocation and spirit and, of course, is consistent with the value constitutional foundation of peace contained, implicitly, in our fundamental text from the proscription of the army (article 12) and the admission, unique and exclusive, of the legitimate defense against external aggressions or the State of National Defense (articles 121, subsection 6, and 147, subsection 1). This Constitutional Court has recently ruled on the right to peace, implicitly enshrined in our legal system and recognized after the approval of multiple international treaties dealing with the right to peace and the management of international conflicts. Thus, in judgment No. 200814193 of 10:03 hrs. of September 24, 2008, and reiterating the considerations outlined in the vote No. 2004-09992 of 14:31 hrs. On September 8, 2004, the following was resolved: On the right to peace ... . In this regard, the Chamber has indicated that it is a supreme value of the Political Constitution (judgment # 1739-92 of July 1, 1992) and a fundamental value of Costa Rican identity (judgment # 1313-93 of January 26, March 1993). Likewise, it has been considered as a value not only nationally but also internationally in accordance with the provisions of the Charter of the United Nations Organization, the Declaration on the Right of Peoples to Peace, adopted by Resolution # 39 / 11 of the General Assembly of the United Nations of November 12, 1984, the Declaration on the Inadmissibility

27 The Supreme Court of Costa Rica Sentencia No. 18211 de Sala Constitucional de la Corte Suprema de Justicia, 10 December 2008 Ponente: Ernesto Jinesta Lobo No. 08-015250-0007-CO.

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of Intervention in the internal affairs of States and Protection of their independence and sovereignty, adopted by the General Assembly of the United Nations in the Resolution # 2131 (XX) of December 21, 1965 and the Declaration on the Principles of International Law concerning friendship relations and cooperation between States in accordance with the Charter of the United Nations adopted in resolution # 2625 (XXV) of the General Assembly of October 24, 1970 (judgment # 2004-9992 of September 8, 2004). In this last judgment cited, the Chamber stated: “(…) It is clear that the Costa Rican people, tired of a history of death, confrontations, preferring the benefits of development, chose freely and wisely from nineteen forty-nine, to collect the feeling that has long accompanied the Costa Ricans, to adopt peace as the guiding value of society. On that date that historical change crystallized, a new spirit was proclaimed, a spirit of peace and tolerance. From then on, the barracks symbolically became a museum or teaching center and the country adopts reason and law as a mechanism to solve its problems internally and externally. Likewise, we are committed to human development and we proclaim our right to live free and in peace. That day this nation took a turn, we decided that whatever cost we must run to fight for peace will always be less than the irreparable costs of war. That philosophy culminates in the ‘Proclamation of perpetual, active and unarmed neutrality’ of our country, and the numerous international instruments signed in the same direction – cited abundantly by the parties – as an extension of that entrenched constitutional value, which serves as a constitutional parameter when analyzing contested acts. In this same sense, the jurisprudence of this Chamber has been pronounced, which has highlighted the value of peace as a legal and political principle, in its sentences stating: ‘... hence the laws, in general, the rules and acts of authority require for their validity, not only to have been promulgated by competent bodies and due procedures, but also to pass the substantive review for their agreement with the standards, supreme principles and values of the Constitution ..., such as those of order, peace, security, justice, freedom, etc., which are configured as patterns of reasonableness (see judgment number 1739-92)’. In another sentence referring to the fundamental values of The Costa Rican identity: “... can be summed up ... in those of democracy, the Social State of Law, the essential dignity of the human being and the system of freedom in addition to peace (Article 12 of the Political Constitution), and Justice ... (see sentence number 1313-93)”. The foregoing evidences that the right to peace has in the Costa Rican system a normative recognition that derives, not only from the text of the Political Constitution, but from the International Treaties ratified by our country, a jurisprudential recognition derived from the sentences issued by the Constitutional Chamber; and above all a social recognition, according to the feeling and action of Costa Ricans themselves. However, the construction of peace, as a certain part of the European doctrine affirms, constitutes an open task whose achievement holds responsible and commits each inhabitant of the country, and especially those who exercise power within the States. Hence, the greatest effort falls on the authorities of the Government to achieve, maintain and consolidate the peace of the country, combined with the purpose of strengthening relations of peaceful cooperation among all peoples. Therefore, the search for peace in a State is not only limited to

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the internal, but also external, so that it is respected by the other States. When referring to peace as a value, it should be noted that every constitutional value, as stated by a sector of European doctrine, has a triple dimension: a) based on a static level of every provision and constitutional institution, of all legal systems; b) guiding on a dynamic level, of the legal order but also of the politician based on predetermined goals and ends that make illegitimate any normative provision that pursues different purposes and hinders the same constitutional values; and c) criticism, which implies that the constitutional value is suitable to serve as an evaluation criterion or parameter of the entire legal system, whereby any infra-constitutional norm can be controlled based on its conformity or not with the constitutional values. Thus, when peace is conceived as a value, the three dimensions referred to are attributable to it, for which it acts as the foundation of the set of norms and institutions, in order to strengthen peaceful relations at the internal and external levels of the State; guides the normative interpretation in the search for solutions that in turn promote it; and invalidates any normative provision or activity of the public authorities that undermines national or international social peace. These three dimensions should be taken into consideration by the States. (...) Additionally, it should be remembered, within the framework of the objective of the draft law consulted, that the attainment of peace can be considered as one of the fundamental purposes of International Human Rights Law. This follows from the Preambles of the Charter of the United Nations, the Universal Declaration of Human Rights and the Charter of the Organization of American States. The same should be noted regarding the Covenants on Civil and Political Rights and Social and Cultural Economic Rights, signed by the United Nations Organization in 1966, in which peace appears as the end to which recognition of rights is oriented there. mentioned. In this way, it is observed that as of the second half of the 20th century, International Law has evolved towards a considerable increase in the commitments of States in respecting and promoting human rights, as a guarantee of peace. The international covenants and conventions cited, among others, link the nations in this common commitment. In addition, judicial mechanisms have been strengthened to enforce the international obligations of States in this area and have evolved towards the recognition and special protection of dignity and human rights, even more so, in times of war, through the consolidation of International human right. Indeed, today it is not enough to proclaim an ideal for the solution of conflicts to be carried out in a peaceful manner, but it is appropriate and in accordance with the Law of the Constitution, to highlight respect for human dignity. Therefore, the recognition of human dignity and the right to peace not only impose the duty to prevent war, but also, in the event of an inevitable conflict, is forced to moderate its effects. Hence, international conventions are adopted that seek, precisely, to force States internationally to refrain from resorting to such aggressive and detestable means such as asphyxiating or toxic gases and bacteriological means, which in addition to being used for war purposes, can massively impact entire populations and cause genocide, which is reprehensible. In fact, it is feasible that weapons of chemical or bacteriological contents have indiscriminate effects and their action, in many cases, exceeds the aggressor’s control capacity, so that they constitute weapons of mass destruction, which moves away, clearly, of the purposes of International Humanitarian Law that strongly questions the use of such means of war. Hence, with absolute respect for human dignity, states are obliged to promote the non-use of disproportionate aggressive mechanisms, both against combatants and the civilian population in general. Thus, in accordance with the implicit right to peace, parallel ends are con-

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ceived as global disarmament and absolute respect for the dignity and human integrity of the dire consequences of armed conflicts, these being fundamental purposes of International Law. Provisions that are absolutely consistent with the values and principles enshrined in our Political Constitution. Note that, previously, the Costa Rican State has signed such international instruments, such as the United Nations Convention on the prohibition of the development, production, storage and use of chemical weapons and on their destruction, draft law that was submitted to consultation before this Constitutional Court, finding no formal or material objections of constitutional order (see judgment No. 1995-06930 of 15:09 hrs. of December 19, 1995). Under this intelligence, the bill of “Accession to the Protocol on the prohibition of the use of asphyxiating, toxic or similar gases and bacteriological means in warfare” is substantially in accordance with the constitutionality parameter. On the merit of the foregoing, it is necessary to vacate the consultation in the sense that the bill “Adherence to the Protocol on the prohibition of the use of asphyxiating, toxic or similar gases and bacteriological means in war” (legislative file No. 16,695) is not unconstitutional (emphasis in the original).

In another case, the Supreme Court addressed the Directorate General of Civil Aviation and the Ministry of Public Security decision to allow five military Blackhawk helicopters to land within the territory without receiving authorization by the legislature as constituting a violation of the Costa Rican people’s right to peace.28 The helicopters were actually part of a security detail accompanying US President Barack Obama in his official visit to the country. It is notable that the next time the United States sent such helicopters to the country they first sought permission from the legislature.29 4.2.3 Bolivia Bolivia has a comprehensive version of peace which reflects its history of having been subjected to interference in the form of a US-backed coup d’etat against its left-wing government (which represented the Peoples’ Assembly composed of miners, peasants, teachers, and students) in 1971. This launched a long period of repression and state terrorism, which included systemic torture, forced disappearance, and murder. At the time of writing, Bolivia has established a truth commission to investigate the human rights violations conducted by the military government between 1964 and 1982. Bolivia’s 2009 Constitution, Article 10, sets forth that Bolivia is a pacifist state that promotes the culture of peace and the right to peace, as well as regional and global cooperation for equitable development, condemning wars of aggression Sentencia 2013-9122 5 Julio 2013. Rico, “US Military Helicopters land in Costa Rica”, QCosta Rica News (22 September 2015), https://​qcostarica​.com/​u​-s​-military​-helicopters​-land​-in​-costa​-rica/​ (accessed 13 September 2020). 28 29

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(while reserving the right of self-defense) and prohibiting the installation of foreign military bases. The Bolivian Court clarified the state’s recognition of realistic peace, as opposed to principled peace, given that the commitment to a right to peace and culture of peace did not negate the civic duty of Bolivians to participate in defense of their country in the event of an act of aggression, thereby prohibiting conscientious objection.30 The Inter-American Court of Human Rights has contributed to the construction of positive peace by calling for training of immigration officials in refugee law and human rights pursuant to a case involving the deportation of a refugee family to Peru, in violation of the right to judicial protection and judicial guarantee, including the right to asylum and the principle of non-refoulement.31 4.2.4 Guatemala Guatemala’s 1985 Constitution addresses peace as a duty held by the state, setting forth both in the preamble and Article 2 that the state has an obligation to guarantee its inhabitants’ peace. At present, sustainable peace in Guatemala is challenged by the failure of the state to address the root causes of the civil war (1960–1996), which resulted in genocide against the Mayan indigenous people.32 There is a high level of malnutrition, poverty, exclusion, and discrimination against indigenous people and other vulnerable groups, as well as a parallel state infiltrating the justice system.33 In February 2019, the Guatemalan Congress considered a proposal to reform Guatemala’s 1996 National Reconciliation Law, which permits amnesty for crimes that could be considered political but excludes amnesty for international abuses like genocide, torture, and other crimes against humanity. The reform alleges that

30 Declaracíon Constitucional Plurinacional 0029/2015 Sucre 29 January 2015, 0550-2013-12-CEA. 31 I/A Court H.R., Case of the Pacheco Tineo family v. Bolivia. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 25, 2013. Series C No. 272, para. 274. 32 Jorge Mario Garcia Laguardia, “Derechos Humanos y Acuerdos de Paz en Guatemala” in Héctor Fix-Zamudio (ed.), Liber Amicorum Corte Interamericana de Derechos Humanos (Inter-American Court of Human Rights 1998) pp. 733–741, at 734, discussing the structural root causes of the conflict and the importance of addressing socio-economic problems to achieve positive peace: “We achieved a peace that is the absence of war, via the end of the internal armed conflict, now we have the legal and civil battle for implementation of peace accords, the construction of peace, rule of law and social justice.” 33 Inter-American Commission on Human Rights, Situation of Human Rights in Guatemala, OEA/Ser.L/V/II. Doc. 208/17 (31 December 2017), http://​www​.oas​.org/​en/​ iachr/​reports/​pdfs/​Guatemala2017​-en​.pdf (accessed 26 July 2020).

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prosecution efforts have targeted the military and that there had been no genocide in Guatemala. Congressman Fernando Linares Beltranena argued that people cannot be convicted of crimes that were not stipulated in Guatemala’s penal code at the time.34 It is an inverted, perverted take on accusations of “victor’s justice” actually coming from the victors of the civil war, as the Unidad Revolucionaria Nacional Guatemalteca (URNG – Guatemalan National Revolutionary Unity) was effectively decimated in the civil war. This initiative directly contradicts the efforts of Rigoberta Menchú, an indigenous activist who denounced the human rights violations of the government during the civil war, and who received the Nobel Peace Prize in 1992 for her efforts to attain social justice for indigenous people and achieve reconciliation. After receiving letters of concern from the Inter-American and UN systems, the Congress shelved the proposal. However, in 2019 the Constitutional Court ruled that a presidential candidate, Thelma Aldana, who had championed anti-corruption as Attorney General and vowed to revive the dismantled International Commission Against Impunity could not run for office, thereby indicating a real risk of a return to oppressive peace and a violation of the state’s duty to guarantee a pro homine peace.35

4.3

PEACE AND HUMAN RIGHTS

Although there is much academic and policy support for recognition of the link between peace and human rights, it is notable that only a minority of jurisdictions in the region refer to peace as the foundation for full enjoyment of human rights or vice versa: Honduras and Venezuela. Ironically, they are both currently facing crises of peace and violations of human rights. These countries have received guidance from the Inter-American Court of Human Rights as to how to build positive peace but the juxtaposition between the context and the constitutional aspirations is striking.

34 Leila Miller, “Guatemala Amnesty Bill Stirs Fears of Impunity and Revenge of Ex-Military”, The Los Angeles Times (25 February 2019), https://​www​.latimes​.com/​ world/​la​-fg​-guatemala​-amnesty​-20190225​-story​.html (accessed 15 July 2020). 35 Sandra Cuffe and Mary Beth Sheridan, “Guatemala Court rules Popular Anti-Corruption Crusader Ineligible to Run for President”, The Washington Post (16 May 2019), https://​www​.washingtonpost​.com/​world/​the​_americas/​guatemala​-awaits​ -ruling​-can​-popular​-anti​-corruption​-crusader​-run​-for​-president/​2019/​05/​14/​8ec59356​ -7516​-11e9​-a7bf​-c8a43b84ee31​_story​.html​?utm​_term​=​.c7a7894ee658 (accessed 15 July 2020).

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4.3.1 Honduras Honduras recognizes peace as a context for the full realization of man as a human being in its preamble and also calls for social peace in its 1982 Constitution, Article 5, thereby actually recognizing both societal liberty perspectives and the state prerogative to maintain order. Curiously, Article 272 states that the army is established to maintain peace. Honduras has experienced marked violence against human rights and environmental defenders, women, and indigenous communities, resulting in pleas for investigation of crimes by two Nobel Peace Laureates in 2017.36 The Inter-American Court of Human Rights has persistently identified structural changes by which the Honduran state can start to build positive peace. It called upon the state to conduct a national awareness campaign, addressed to security officials, justice operators, and the general population, about the importance of the work carried out by environmental defenders in Honduras and their contributions in the defense of human rights in the case of Kawas Fernández v. Honduras (2009).37 The Court also articulated the duty of the State to adopt measures of a legislative, administrative or judicial nature, or the improvement of existing ones, that guarantee the free realization of the activities of environmental defenders; the immediate protection of environmental defenders from the danger or threats that arise due to their work, and the immediate, serious and effective investigation of acts that endanger the life or integrity of environmental defenders, on the occasion from his job.38

The Court ordered the state to create a monument and name a national park stating that the victim died in defense of the environment, and that national park in particular. In the case of Pacheco Teruel and others v. Honduras (2012) the Court called for training programs that should include international standards in prison matters and the jurisprudence of the inter-American system in this regard. These programs or courses must be permanent and addressed to officials of the Honduran prison system at all hierarchical levels.39 Likewise in the case of Pacheco Leon and others v. Honduras (2017), the state was

36 “Nobel Laureates Demand Justice for Slain Honduran Activist Berta Caceres”, Voice of America (31 October 2017), https://​www​.voanews​.com/​americas/​nobel​ -laureates​-demand​-justice​-slain​-honduran​-activist​-berta​-caceres (accessed 15 July 2020). 37 I/A Court H.R., Case of Kawas Fernández v. Honduras. Merits, Reparations and Costs. Judgment of April 3, 2009. Series C No. 196. 38 Ibid at para. 214. 39 I/A Court H.R., Case of Pacheco Teruel et al. v. Honduras. Merits, Reparations and Costs. Judgment of April 27, 2012. Series C No. 241.

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ordered to set up a mandatory permanent human rights training program for police, prosecutors, and judicial officials, which includes, among other topics, standards for diligent investigation and technical aspects in cases of homicides due to political motivations and perpetual impunity.40 Finally, in the case of Stairs Mejia and others v. Honduras (2018), the state reached an agreement with the victim, in which it recognized the risk situation experienced by human rights defenders in Honduras, for which it undertook to “approve and implement a due diligence protocol for the investigation of crimes committed against human rights defenders.”41 This protocol was to include: (i) the risks inherent in the work of defending human rights; (ii) the context in which human rights defenders develop their work; (iii) the gender and intercultural perspective in the investigation of the crimes involved; and (iv) best practices and standards. Finally, the state promised that after 18 months from the entry into validity of the protocol, it would present a report on compliance which would include statistics on the investigation of cases. The Court approved this measure. In particular, the Court welcomed the approval of the Law for the Protection of Human Rights Defenders, Journalists, Social Communicators and Justice Operators, and the state’s commitment to make a proposal to improve inter-institutional coordination. 4.3.2 Venezuela Venezuela’s 1999 Constitution, Article 132, sets forth that “[e]veryone has a duty to fulfill his or her social responsibilities and participate together in the political, civic and community life of the country, promoting and protecting human rights as the foundation of democratic coexistence and social peace.” The Inter-American Court of Human Rights has issued decisions holding Venezuela accountable for violations of the right to life and torture of persons by security service officers in the Case of Diaz Lorteo and Others v. Venezuela (2019) involving the extrajudicial executions of three men by the Cuerpo de Seguridad y Orden Público del Estado Aragua (CSOPEA).42 The Court called for training of police security officers on torture, physical integrity, personal liberty, the use of force, and human rights. The Venezuelan Supreme Court has addressed peace in relation to declaring the use of amnesties unconstitutional in a lengthy reflection which explains the 40 I/A Court H.R., Case of Pacheco León et al. v. Honduras. Merits, Reparations and Costs. Judgment of November 15, 2017. Series C No. 342. 41 I/A Court H.R., Case of Escaleras Mejía et al. v. Honduras. Judgment of September 26, 2018. Series C No. 361. 42 I/A Court H.R., Case of Díaz Loreto et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 19, 2019. Series C No. 392.

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balancing values of peace, human rights, democracy, and justice, which proves more in favor of strict accountability:43 ... (I)f it is understood that one of the criteria of delimitation of amnesty with respect to justice is to achieve national peace and reconciliation under the democratic and constitutional foundations supported by justice, it cannot be understood that social peace be established based on impunity for the commission of illegal acts. The conflict between values in an amnesty is, on the one hand, the alleged national reconciliation in favor of amnesty as a means to achieve peace and, on the other, values such as justice (avoid impunity) and the preeminence of human rights, against amnesty, both recognized in the Constitution in its articles 1, 2 and 3, but in respect of which the legislative and jurisprudential experience has chosen to protect justice as a preponderant value. According to the above, amnesties can then be instituted, as a legal means for a process of reconciliation, normalization and balanced coexistence, becoming a “peace pact”, which is capable of establishing a new order that seeks to prevent the reissue of facts that are intended to exclude from jus puniendi and subject them to oblivion; However, this does not enable as highlighted based on constitutional principles and values, jurisprudence and doctrine, a contribution of impunity or the legitimation of abuses against the rule of law ... . The judge must be rational, that is, he must act according to principles and rules, but at the same time it must be reasonable, that is, to be located on a broader contextual level, in which considerations of a valuation order, such as those of justice, social peace and healthy coexistence. Criminal law not only limits freedom, but also creates freedom ... . Attacks that are aimed at justifying the existence of criminal law as a repressive instrument of power for the realization of the legal order are unfounded in a freely organized society, since only the penalty makes possible the protection of legal peace within a framework of freedom. It follows, therefore, that amnesty is vitally important as an institution in the legal system; but it can perform contradictory functions in the society in which it is applied; On the one hand, its correct use can mean a means to achieve supreme values of the Venezuelan legal system, such as justice and social peace (articles 2 and 3 of the Constitution). On the other, it can represent a milestone that ruins the public sphere, weakens democratic institutions and destroys the rule of law and justice enshrined in the Constitution, not being a means to achieve social peace, but a reason to impose violence and impunity in society, even achieving a legal framework that enables a true anomie, which allows the execution of destabilization plans or ignorance of the Democratic State. In this way, you should highlight I am aware that amnesty, contrary to what is indicated by public opinion, is not a sort of impunity for human rights violators or their accomplices but rather a constitutional mechanism that allows – under certain circumstances (irruption of the constitutional system) – the consolidation of a social peace through the recognition of a material equality between the actors in conflict

43 Judgment no 264 of the Supreme Court of Justice – Constitutional Chamber of April 11, 2016.

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that recognizes a material substrate in terms of the facts and the political recognition of the counterpart. Therefore, an overlap of justice, in order to achieve an alleged “national reconciliation or public peace” whose foundations are not based on an underlying social disagreement – which cannot be settled or settled by the institutional means established in the legal system (v. gr. elections) would be the same as ignoring not only the immediate purposes of the State as guarantor of fundamental human rights, but an invitation that would set a terrible precedent, which instigates the individual’s rebellion against the will of the law, which requires reparation that reaffirms the authority of the State by imposing a penalty as a result of the process of due process. Notwithstanding the foregoing, in the Venezuelan constitutional framework the “exercise of citizen freedoms and for political purposes” referred to in the law is not unlimited, and, therefore, not every protest, demonstration, claim or appeal against the institutional order it is admissible, since although constitutional article 68 provides for the right to express, it establishes as a limit to this possibility its necessary realization in a peaceful manner. Continuing, in relation to the principles of independence and equality, it should be noted that Article 1 of the Fundamental Text declares the Bolivarian Republic of Venezuela irrevocably free and independent, basing its moral heritage and its values of freedom, equality, justice and peace international, in the doctrine of Simon Bolivar, the Liberator; while advocating independence as an inalienable right of the Nation, along with freedom, sovereignty, immunity, territorial integrity and national self-determination. In addition to the above considerations, given that the reading of the enacted Law of Amnesty and National Reconciliation cannot be formulated in strictly literal terms of what is established in the norm, but necessarily in relation to the historical-axiological framework of the regulation, it is clear for the Chamber that in the present case reveals an arbitrary activity of the legislator, which does not act in representation of the general interest of the company in accordance with articles 1, 2 and 3 of the Constitution of the Bolivarian Republic of Venezuela, but intends to impose a true hegemony of sectoral interests outside the constitutional principles (justice, peace and responsibility among others), presenting their particular interests as general values, through a pretended sustained social consensus, not in a process of dissent and consensus of the democratic system, but taking advantage of the legitimacy derived from the representation in direct exercise that is exercised within the framework of the powers of the Legislative Body. The National Assembly seeks to impose and reproduce a social reality within the framework of a process of establishing a hegemonic position through imposition of counter values such as impunity and disobedience to the law, through an institutional legal framework, in which the principles of dignity, equality, freedom, among others, that inform the Basic Text are not effectively guaranteed. What is clear is that the enacted Law of Amnesty and National Reconciliation is not an exercise of power in accordance with the constitutional framework, but rather a regulation that violates and ignores its articles and also generates contrary consequences to the aim which is to achieve social peace within the framework of a rule of law, and which implies the submission of individuals and society to democratic channels for the solution of their disagreements. The constitutional principles include values, the ultimate goals that link individuals and society, norms that regulate actions aimed at achieving immediate goals based on their conformity to the ultimate and common system of characteristic values of

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the community. They are commonly recognized as “institutions,” which are of vital importance, since a society is integrated if it meets the criteria of owning a system of institutional norms that are specifically applied based on moral authority, since if it were not so, at the other extreme we would be in the presence of an anomic society. It should be borne in mind that in that context the task of integrating deeply complex and pluralistic societies corresponds to the Law, since the binding force of law and its ability to integrate very complex societies, as currently dominated by pluralism, are in the capacity of the right to prove “rational” not only from the formal point of view but also from the practical-moral point of view. The constitutional law defines the fundamental lines of the normative context that generally regulates corporate relations, since in each Constitution that set of values common to the “collective conscience” that constitute the fabric of social morality is objectified. The Constitution becomes an element that regulates society, relationships between individuals, assumes the function of control of collective life and the actions of individuals; It is as the regulatory center of every collective project and of every reciprocal expectation, it regulates the norms of practical action ... Thus, in the face of political violence, every State has the primary duty to protect the population itself from serious and continuing violations of human rights. In the Democratic and Social State of Law and Justice, political violence cannot be considered an instrument for resolving national disputes. Many Popes have said it in peremptory terms: violent action is never a way out of a crisis. Likewise, the principle of responsibility to protect is the foundation of all actions undertaken by the rulers towards the governed. A total and a priori rejection of the use of violence is a moral, social conquest. All the great theorists of democracy (Kelsen, Schumpeter, Bobbio) argue that democratic procedures replace the violent processes of conquest of government power to those peaceful represented by the decision to appeal to electoral-type procedures (according to Bobbio, democracy is the first form of application of the principles of nonviolence). If political violence is legitimized, we renounce our own democratic integrity, political pluralism represents the minimum condition for a democracy to function, while tolerance is a mental position that allows it to function and in that context, the resolution of conflicts must be the product of the real, effective and, ultimately, conscious recognition of the other, not of a simple empty procedure of content that stands for the sole purpose of legitimizing a hegemonic position of power. As for chapter VI of the Law of Amnesty and National Reconciliation, article 28 provides for the creation of a special commission for reconciliation, whose main function is to follow up on the application of the amnesty law itself, without observing its wording the conception of a process in which all parties that may be involved. It claims to initiate a communicative exchange that will lead to mutual recognition and lay the foundation for peace, founded on forgiveness, a common understanding of the facts, and the restoration of the social bond. Nonetheless, this is unconstitutional.

Both countries are undergoing significant violations of human rights and peace, including arbitrary detention, torture, extrajudicial assassinations of human rights defenders, journalists, and political opponents, and a lack of judi-

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cial independence.44 The international and regional actors, including the UN Security Council and the OAS, have been stymied in restoring peace and have witnessed an escalation in the severity of human rights violations, resulting in calls to hold President Maduro accountable for crimes against humanity.45 The Inter-American Court of Human Rights issued an Advisory Opinion addressing the responsibility of states which have denounced the American Convention on Human Rights (e.g. Venezuela), concluding that they are still obligated to respect human rights contained within the OAS Charter, the American Declaration on Human Rights, and other human rights treaties not denounced by the state, as well as customary norms and jus cogens norms.46 The Court noted that the Advisory Opinion was issued in order to contribute to the pacific resolution of disputes in pursuit of the aim of the OAS to achieve an order of peace and justice within the Americas. In terms of the human right to peace of women and children, there are normative iterations of “peace within the home” that recognize the obligation to prevent domestic violence: Paraguay’s Constitution, Article 60, ensures that the state will promote policies having the purpose of avoiding violence in the family and Ecuador’s Constitution, Article 44, provides that children have the right to enjoy peaceful coexistence with family and community. Both provisions signal the importance of state policies preventing violence by private actors in the domestic environment, thereby connecting to the Inter-American

44 UN Office of the High Commissioner for Human Rights, Situation of Human Rights in Honduras, A/HRC/43/3/Add.2 (26 February 2020). UN Office of the High Commissioner for Human Rights, Situation of Human Rights in the Bolivarian Republic of Venezuela, A/HRC/41/18 (5 July 2019). 45 See the February 2019 meeting on Venezuela in the UN Security Council: https://​news​.un​.org/​en/​story/​2019/​02/​1033832; the role of the UN and OAS regarding the coup d’etat and elections in Honduras is very problematic: https://​ www​ .telesurenglish​.net/​news/​Honduras​-Zelaya​-Says​-OAS​-Two​-faced​-U​.N​.​-is​-Divisionary​ -20180311​-0022​.html. See OAS Permanent Council, Resolution Regarding Recent Events in Venezuela, CP/RES. 1143 (2269/20) (10 January 2020) calling for elections in Venezuela, but opposed by Antigua and Barbuda as Venezuela is no longer a member of the OAS. UN Human Rights Council, “Venezuela: UN Report Urges Accountability for Crimes Against Humanity” (16 September 2020), https://​www​ .ohchr​.org/​EN/​HRBodies/​HRC/​Pages/​NewsDetail​.aspx​?NewsID​=​26247​&​LangID​=​E (all accessed 20 October 2020). 46 I/A Court H.R., La Denuncia de la Convencion Americana sobre Derechos Humanos y de la Carta de la Organizacon de los Estados Americanos y sus efectos sobre las obligaciones estatales en materia de derechos humanos, Opinion Consultiva OC-26/20 (November 9, 2020) para. 175.

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System of Human Rights jurisprudence on the due diligence obligation to address risk of harm to women and children (discussed further in Chapter 7).47

4.4

CULTURE OF PEACE

Civil society is expected to support constitutional values. Since peace is often recognized as a constitutional value, it has a history of forming part of the societal discourse in Latin American and other regions.48 Peace may be considered to be a cultural aspiration of Latin Americans – in spite of (or perhaps because of) the context of violence, inequality, and discrimination. For peace to be viable as a recognizable principle it needs to be accepted and considered a legitimate aim by society. Peace movements within Latin America can be traced back to the early 1900s, responding to repression by dictatorships that extended within Central America and the Southern Cone to the violence of the civil wars in Central America in the 1980s, and current demands for social justice in response to neo-authoritarian regimes.49 The peace movements have often been linked to Catholic, Protestant, and Evangelical churches, human rights NGOs, and other transnational actors, and have influenced the evolution of law, including international law to prohibit the use of force and limit the power of the state over society through demands for reforms to strengthen constitutionalism and human rights.50 Hence, peace is also referred to in the context of culture – a culture of peace and peace law may be conceived as part

47 Leyla-Denisa Obreja, “Expanding Due Diligence: Human Rights Risk Assessments and Limits to State Interventions Aimed at Preventing Domestic Violence” 7(2) Groningen Journal of International Law (2020), https://​ugp​.rug​.nl/​GROJIL/​ article/​view/​36025 (accessed 17 October 2020). Cecilia M. Bailliet, “Persecution in the Home: Applying the Due Diligence Standard to Harmful Traditional Practices within Human Rights and Refugee Law” 30(1) Nordic Journal of Human Rights (2012) p. 36. 48 On societal discourse and constitutional value, see S. Thieil, “Three insights from Peter Haberle’s Preambles in the text and context of constitutions”, UK Constitutional Law Blog (25 March 2015), https://​ukconstitutionallaw​.org/​2015/​03/​25/​ stefan​-theil​-three​-insights​-from​-peter​-haberles​-preambles​-in​-the​-text​-and​-context​-of​ -constitutions/​(accessed 15 July 2020). 49 “Peace Movements in Latin America”, The Oxford Encyclopedia of Peace (OUP 2010). See also Ron Pagnucco, “The transnational Strategies of the Service for Peace and Justice in Latin America” in Jackie Smith, Charles Chatfield and Ron Pagnucco (eds), Transnational Social Movements and Global Politics: Solidarity Beyond the State (1997) pp. 123–140. See also Wenche Hauge, “A Latin American Agenda for Peace” 16(5) International Peacekeeping (Syracuse University Press 2009) pp. 685–698. 50 B. Fassbender, A. Peters and C. Lynch, “Peace Movements, Civil Society, and the Development of International Law”, The Oxford Handbook of the History of International Law (Oxford University Press 2019).

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of legal culture as well.51 José Manuel Pureza describes the culture of peace as being part of a new common sense.52 The culture of peace includes the tolerance of differences, equality, and acceptance of multiculturalism – including inter-religious and inter-cultural dialogue and cooperation to achieve peaceful coexistence. The Nicaraguan 1987 Constitution, Article 5, describes culture of peace characteristics as the basis of peace: Solidarity among Nicaraguans must consist in joint action which leads to the abolition of exclusionary practices and favors the most impoverished, disadvantaged and marginalized people; a feeling of unity based on common objectives and interests of the nation, as cooperation and mutual assistance promote and breathe life into relationships characterized by understanding, respect and dignity which form the basis for peace and reconciliation among individuals.

More broadly, a culture of peace also may refer to peace education, sustainable development, human rights, gender equality, democratic participation, tolerance, the free flow of information, and disarmament. Hence, it can be implemented by the State, regional institutions, and civil society with specific policies and campaigns.53 Even corporations are increasingly engaged in promoting negotiation between trade unions and employers, training to combat corruption, and vocational training for displaced and demobilized youths at risk of recruitment into criminal gangs.54 Yet, Franz Reimer points out the dilemma of linking law with culture when considering the state’s interest in maintaining control through law: For decades, however, law and culture have been explicitly or implicitly placed in opposition to one another as two realms of life with entirely different rationalities. Often, law was conceived of as powerful and protective, whereas culture – whatever was meant by this label precisely – was viewed as a frail plant in need of protection

51 See Markus Kotzer (ed.), Peter Haberle on Constitutional Theory (Nomos/Hart 2018). 52 José Manuel Pureza, “Derechos Humanos y Cultura de Paz? Dangerous Liaisons?” in Felipe Gomez Isa and José Manuel Pureza (eds), La protección internacional de los derechos humanos en los albores del siglo XXI (Universidad de Deusto 2003) pp. 827, 828. 53 On September 13, 1999, the UN General Assembly adopted a program of action on a culture of peace which includes eight points, previously confirmed by the 1998 Resolution on Culture of Peace (A/53/243). On the engagement of MERCOSUR in peace education, see F. Acosta, “A Latin American Approach to Peace: The Case of MERCOSUR” in A. Kulnazarova and V. Popovski (eds), The Palgrave Handbook of Global Approaches to Peace (Palgrave Macmillan 2019). 54 See the International Council of Swedish Industry and the Global Compact Business for Peace initiative, https://​www​.ihrb​.org/​other/​can​-corporations​-support​ -peace (accessed 10 February 2021).

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... Culture also served as a dialogue partner for law. As a societal subsystem of its own, culture may be considered both a formative and a limiting factor in relation to the law. The law and culture dichotomy also mirrors a fundamental distinction made between the state and society (Staat und Gesellschaft). This distinction pervaded German political and legal theory during the nineteenth and twentieth centuries. Accordingly, law could be seen as the state’s instrument of control, whereas culture was perceived as the epitome of free activities within a society ... no regulation can really be understood outside the background of its specific tradition and culture. In this sense, any given legal system has its respective culture.55

Oliver Richmond explains the importance of understanding the role and impact of culture: Local cultures often engender social and economic systems that are expressions of responsibility to each other, despite their limited resources and lack of market infrastructure, and in contradistinction to the elite, predatory state or class systems attempting to concentrate power in the hands of a particular identity group ... (t)his requires an understanding of the ways local or “organic” intellectuals, policymakers, politicians, bureaucrats, professionals, networks (social, professional, cultural, religious, identity, labour, leisure) and associations of ordinary people think of peace in everyday life ... Peace formation is not territorial; it is deterritorialised, transnational, transversal or perhaps diasporic, but firmly aimed at emancipatory and empathetic forms of peace. This represents a situated form of community via a struggle for the necessary space, resources, autonomy, identity and institutions. Peace formation would enable an appreciation of everyday agency, structural conditions related to material, spatial and temporal dimensions of justice, networks and institutional frameworks, simultaneously with an appreciation of their interplay as a forever unfinished process ... The international architecture is still required, however, as a check and balance against state power, and as an enabler of social justice.56

Cultural violence was defined by Galtung as legitimizing direct or structural violence through religion, art, language, ideology, or even science to pursue discriminatory and exclusionary policies.57 Classic examples include hate speech, xenophobic narratives on social media, discriminatory attitudes based on social class, etc. Cultural peace seeks to counter this type of violence, hence

55 Franz Reimer, “Law as Culture? Culturalist Perspectives in Legal Theory and Theory of Methods” 18 German Law Journal (2017) p. 255: “It is evident that hermeneutics is a key topic in legal methodology. Applying the law is normally equated with interpreting the law, and interpreting the law is traditionally associated with four guiding elements: the text, the context, history, and the rationale.” 56 Oliver P. Richmond, “Rescuing Peacebuilding? Anthropology and Peace Formation” 32(2) Global Society (2018) pp. 221–239. 57 Johan Galtung, “Cultural Violence” 27(3) Journal of Peace Research (1990) pp. 291–305.

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there is a need to study examples of positive initiatives to promote peace culture.58 Non-violent peace movements have been instrumental in bringing about regime change.59 There may be a disconnect between state and societal approaches to peace; the aim is to move towards harmonization and it may be argued that this is where the Inter-American Court of Human Rights may make a contribution. Of note, Latin America has had six Nobel Peace Laureates, four of whom worked as state officials with diplomatic endeavors and two of whom were civil society activists, hence this underscores the importance of individuals oriented towards international and national peace within both the state and society.60 4.4.1 Education In 2019, the UN General Assembly passed a resolution on Promotion of Peace, Love and Conscience that called upon states and civil society to promote a culture of peace through education and public awareness initiatives oriented towards reconciliation in accordance with local culture.61 Felicitas Acosta states that “the emergence of the emphasis on a culture of peace and education for a culture of peace is part of a wider realization that the attainment of peace is not merely an institutional problem, but rather one that requires the subtle elements of cultural change.”62 UNESCO supports initiatives that focus on an international network of youth for peace (Red Internacional de Jóvenes por la Paz, including students from Peru, Colombia, Argentina, Guatemala, and Ecuador) that seek to disseminate a culture of peace based on resilience, 58 Paul F. Diehl, “Exploring Peace: Looking beyond War and Negative Peace” 60 International Studies Quarterly (2016) pp. 1–10. See also Patricia M. Shields, “Limits of Negative peace, Faces of Positive Peace” 47(3) Parameters (2017) pp. 5–12. 59 David Robson, “The 3/5 Rule: How a Small Minority Can Change the World”, BBC (14 May 2019), http://​www​.bbc​.com/​future/​story/​20190513​-it​-only​-takes​-35​-of​ -people​-to​-change​-the​-world (accessed 15 July 2020). Maria J. Stephan and Erica Chenoweth, “Why Civil Resistance Works: The Strategic Logic of Non-Violence” 33(1) International Security (2008) pp. 7–44. 60 1936: Carlos Saavedra Robles (Argentina); 1980: Adolfo Pérez Esquivel (Argentina); 1982: Alfonso García Robles (Mexico); 1987: Óscar Arías Sánchez (Costa Rica); 1992: Rigoberta Menchú (Guatemala); and 2016: Juan Manuel Santos (Colombia). 61 UN General Assembly, Resolution 73/329 Promoting the Culture of Peace and Love with Conscience, A/Res/73/329 (31 July 2019), https://​undocs​.org/​en/​A/​RES/​73/​ 329 (accessed 15 July 2020). 62 Felicitas Acosta, “A Latin American Approach to Peace: The Case of MERCOSUR” in Aigul Kulnazararova and Vesselin Popovski (eds), The Palgrave Handbook of Global Approaches to Peace (Palgrave 2019) p. 374.

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solidarity, and social cohesion.63 The events bring together civil society, local community, and political actors to design policies, and hence possible linkage to a constitutional framework is positive. The Paraguayan 1992 Constitution, Article 73, addresses peace as an aim of education: All persons have the right to a complete integral and permanent education, which as a system and a process, is accomplished within the context of the culture of the community. Its goals [fines] are the full development of the human personality and the promotion of freedom and peace, social justice, solidarity, cooperation and the integration of the peoples; the respect for human rights and the democratic principles; the affirmation of the commitment to the Fatherland, to the cultural identity and the intellectual, moral, and civic training, as well as the elimination of the educational contents of a discriminatory character. The eradication of illiteracy and the preparation for work are permanent objectives of the educational system.

According to the Ecuadoran 2008 Constitution, Article 3(8), the state has an obligation to provide the enjoyment of a right to a culture of peace: State has duty to guarantee its inhabitants the right to a culture of peace, to integral security and to live in a democratic society free of corruption.

Similar to Paraguay, it also identifies peace as an aim of education in Article 27: Education will focus on the human being and shall guarantee holistic human development, in the framework of respect for human rights, a sustainable environment, and democracy; education shall be participatory, compulsory, intercultural, democratic, inclusive and diverse, of high quality and humane; it shall promote gender equity, justice, solidarity and peace; it shall encourage critical faculties, art and sports, individual and community initiatives, and the development of competencies and capabilities to create and work.

Article 393 sets forth clear obligations for the state to implement culture of peace policies at the institutional level, linking it to the guarantee of safety: The State shall guarantee human safety by means of integrated policies and actions to ensure the peaceful coexistence of persons, to promote a culture of peace and to prevent forms of violence and discrimination and the perpetration of offenses and crimes. The planning and application of these policies shall be entrusted to specialized bodies at the different levels of government.

63 Catedra UNESCO de Cultura y Educación para La Paz, https://​catedradepazutpl​ .org/​2020/​06/​05/​iii​-encuentro​-de​-gestores​-de​-cultura​-de​-paz/​ (accessed 6 October 2020).

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In particular, Article 249 identifies border communities as being prioritized for culture of peace policies: “cantons whose territories are wholly or partially within a forty-kilometer border belt shall receive preferential attention for consolidating a culture of peace and socio-economic development, through integrated policies safeguarding sovereignty, natural biodiversity, and interculturalism. The law shall regulate and guarantee enforcement of these rights.” In practice, there have been problems implementing the culture of peace educational programs because of clashes between Coexistence Codes and Internal Regulations at the local level, as well as a need to train educators and students.64Additionally, Article 347 sets forth that the “State shall guarantee that schools shall be spaces for peaceful coexistence.” Peru has adopted legislation, specifically, Law No. 30810, that incorporates the principle of the culture of peace and nonviolence into Law No. 28044, which promotes the incorporation into the Peruvian educational system of the teaching of the culture of peace. Article 8 of the General Education Law sets forth: “I) The culture of peace and nonviolence, which promotes values and attitudes that reject all types of violence and discrimination, affirms life, individual freedom, freedom of thought, solidarity, equality between men and women and in general those rights referred to in Chapter I of the Political Constitution of Peru.”65 This is a good example of the implementation possibilities for standards relating to peace. It is notable that the Peruvian Constitution also recognizes the right to peace, tranquility, and enjoyment of leisure time and rest in Article 2(22), hence one may interpret the culture of peace legislation as implementation of this right in practice. Nevertheless, although the Dominican Republic does not have a constitutional reference to a culture of peace, it has several culture of peace programs promoted by civil society actors in coordination with a university and schools promoting art centers.66 In sum, culture of peace policies aim to promote dialogue based on respect for diversity, recognition, inclusion, participation, and support for emancipa64 Alejandro Jorge Christ, “Cultura de Paz y Reformas Educativas”, https://​core​.ac​ .uk/​download/​pdf/​159773273​.pdf (accessed 6 October 2020). 65 “Peru: Law to Promote the Culture of Peace and Non-Violence in Basic Education”, Culture of Peace News Network (13 July 2018), http://​cpnn​-world​.org/​ new/​?p​=​13188 (accessed 15 July 2020). 66 Cultura de Paz Republica Dominicana, http://​culturadepazrd​.do/​(accessed 15 July 2020). Alcedo Magarin, “Cultura de Paz como Politica de Estado”, El Nuevo Diario (29 August 2017), https://​elnuevodiario​.com​.do/​cultura​-paz​-politica​-estado/​ (accessed 15 July 2020). Anabareli Espinoza, “Dominican Republic: Integrating Art Subjects in Centers Helps Create a Culture of Peace, Global Campaign for Peace Education” (17 May 2018), https://​www​.peace​-ed​-campaign​.org/​dominican​-republic​ -integrating​-art​-subjects​-in​-centers​-helps​-create​-a​-culture​-of​-peace/​ (accessed 15 July 2020).

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tory discourses at the local level. It appears to be a valuable approach towards promoting social resilience in an epoch of polarizing narratives emerging from social media and fomenting division within societies. The essence of culture of peace initiatives is the recognition noted by Michael Doyle that peace is an ethical duty because it is only under conditions of peace that all men can treat each other as ends, rather than as means to an end.67 This is currently recognized by governments through culture of peace education initiatives within the region.68 4.4.2

Alternative Dispute Resolution of Labor Disputes

Legal aspects of promoting a culture of peace include the creation of mechanisms for pacific dispute resolution at the national local levels. Among the most common mechanisms are those pertaining to labor disputes, which have received increased application of MASC (Mecanismos Alternativos de Solución de Conflictos). For example, the Colombian 1991 Constitution, Article 55, sets forth: “It is the duty of the State to promote agreement and other measures for the peaceful solution of collective labor conflicts.”69 Nevertheless, in spite of the constitutional framework, the use of MASC within Colombia requires greater dissemination, institutionalization, and support by employers, as well as increased trust in the Ministry of Labor, which handled 282,000 individual labor conflicts and 6,000 collective conflicts between 2014 and 2018.70 In

67 See Michael Doyle’s discussion of Kant in Liberal Peace: Selected Essays (Routledge 2012) p. 69. 68 See e.g. Said Bahajin, “La educación como instrumento de la cultura de paz” 18(78) Innovación educativa (México DF) (2018) pp. 93–111. 69 See Hernan Trujillo Tovar, “Estudio sobre los conflictos laborales y los mecanismos de solución en el sector publico de Colombia” (OIT 2016), https://​ www​.ilo​.org/​wcmsp5/​groups/​public/​-​-​-americas/​-​-​-ro​-lima/​-​-​-sro​-lima/​documents/​ genericdocument/​wcms​_561227​.pdf (accessed 28 July 2020). 70 Juan Pablo López Moreno and Juliana Morad Aceno, Mediacion Laboral y Conflictos Laborales en Colombia (Tirant Lo Blanch 2020), https://​cienciasjuridicas​ .javeriana​.edu​.co/​documents/​3722972/​11531474/​Libro+​Mediaci​%C3​%B3n+​Laboral+​ y+​conflictos+​laborales/​43f99623​-9f0c​-4338​-9bfd​-42f455ea18bb (accessed 6 October 2020). Mauricio León, “Los conflictos mas fuertes entre empleados y empleadores”, Portafolio (16 May 2018), https://​www​.portafolio​.co/​economia/​empleo/​los​-conflictos​ -laborales​-mas​-fuertes​-entre​-empleados​-y​-empleadores​-517151 (accessed 6 October 2020).

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comparison, the Chilean 1980 Constitution, Article 16, provides a detailed description of labor negotiation:71 Collective negotiation with the company for which they work is a right of workers, except in the cases in which the law expressly prohibits negotiation. The law will establish the procedures for collective negotiation and the appropriate procedures for reaching a just and peaceful solution [by] it. The law will specify the cases in which collective negotiation must be submitted to obligatory arbitration, which will correspond to special tribunals of experts, having the organization and attributions which will be established in it.

The Direccion Laboral offers MASC for a wide range of issues, including work environment, sexual harassment, child labor, etc.72 In like manner, the 1982 Constitution of Honduras, Article 139, states: “The State has an obligation to promote, organize and regulate conciliation and arbitration procedures for the peaceful settlement of labor disputes.” The Secretary of Labor established an entity called Resolucion Alterna de Conflictos Laborales (RACL), which managed over 3,000 cases in one year.73 The 1993 Constitution of Peru, Article 28, also calls for peaceful labor dispute resolution: “Encouraging collective bargaining and promoting peaceful settlement to labor disputes. Collective agreements are binding in the matters concerning their terms.” The Ministry of Labor claimed to have resolved over 100 labor conflicts in one year through use of ADR, thereby confirming the value of assigning a ministry an institutional mandate to implement these measures.74 Moreover, the Dominican Republic 2015 Constitution refers to the Public Ministry’s obligation to provide alternative dispute resolution in Article 169, relevant to fields beyond labor disputes (such as family law, civil law, and criminal law): In the exercise of its functions, the Public Ministry shall guarantee the fundamental rights that belong to male and female citizens, shall promote the alternative resolution of disputes, shall provide for the protection of victims and witnesses and shall defend the public interest guarded by the law.

71 Chile’s Department of Labor has a website presenting conciliation: https://​www​ .dt​.gob​.cl/​portal/​1626/​w3​-article​-60361​.html (accessed 13 September 2020). 72 https://​www​.dt​.gob​.cl/​portal/​1626/​w3​-propertyvalue​-23829​.html. 73 “Mas de 3,000 casos de conflictos laborales registra la Secretaria en un año”, La Prensa (9 October 2016), https://​www​.laprensa​.hn/​honduras/​1006821​-410/​m​%C3​ %A1s​-de​-3000​-conflictos​-laborales​-registra​-la​-secretar​%C3​%ADa​-este​-a​%C3​%B1o (accessed 6 October 2020). 74 “MTPE resolvió 107 conflictos laborales y benefició a más de 195,000 trabajadores”, Andina (29 July 2019), https://​andina​.pe/​agencia/​noticia​-mtpe​-resolvio​-107​ -conflictos​-laborales​-y​-beneficio​-a​-mas​-195000​-trabajadores​-760506​.aspx (accessed 6 October 2020).

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The Supreme Court issued a regulation on ADR in the Dominican Republic that seeks to guarantee peaceful coexistence among the peoples within the nation, in accordance with Article 26(4) of the Constitution, thereby applying a norm that was intended to be applied externally to the internal level:75 ... the Dominican Republic accepts an international judicial system that guarantees respect of fundamental rights, peace, justice, and political, social, economic and cultural development of nations. It promises to act on the international, regional, and national levels in a manner compatible with national interests, the peaceful coexistence between peoples and the duties of solidarity with all nations.

Institutional measures are contingent on a parallel cultural shift towards recognition of culture of peace values, and the advancement of MASC within the region is a positive trend, although attacks on labor and trade union activists remain endemic and reveal the fragility of structural changes. Indeed, the International Trade Union Confederation, 2020 Global Rights Index lists Bolivia, Brazil, Chile, Colombia, Ecuador, and Honduras as among the worst countries for violence against workers, making Latin America the most violent region in the world for workers.76 It is notable that the Inter-American Court of Human Rights has recognized the right of trade unions to have standing as victims of human rights abuses in order to file claims for protection.77

4.5 CONCLUSION In conclusion, the constitutions of the Americas contain all the variants of Franz Reimer’s typology of constitutional normativity. Peace ranges from a superior value, to an enforceable right and duty; the duty is divided between countries which recognize it as the duty of the state to provide peace to the society and jurisdictions, or in which the society has the duty to uphold social peace, or both. The initiatives to pursue culture of peace educational and dispute resolution programs to germinate peace from the bottom up appear promising but are challenged by the context of inequality, crime, and internal

Resolution 2142-2018 issued by the Supreme Court on 19 July 2018. International Trade Union Confederation, 2020 ITUC Global Rights Index, https://​www​.ituc​-csi​.org/​IMG/​pdf/​ituc​_globalrightsindex​_2020​_en​.pdf (accessed 29 January 2021). 77 I/A Court H.R., Entitlement of legal entities to hold rights under the Inter-American Human Rights System (Interpretation and scope of Article 1(2), in relation to Articles 1(2), 8, 11(2), 13, 16, 21, 24, 25, 29, 30, 44, 46 and 62(3) of the American Convention on Human Rights, as well as of Article 8(1)(A) and (B) of the Protocol of San Salvador). Advisory Opinion OC-22/16 of February 26, 2016. Series A No. 22. 75 76

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violence. In spite of the variation of form, peace is widely recognized within Latin American constitutions, thereby providing a foundation for potential inclusion in the jus commune. There is a range of normative language that indicates variability as to whether peace may be considered justiciable at the domestic level. Bolivia, Colombia, Venezuela, and Costa Rica’s case law demonstrates the viable justiciability of the right/value/obligation of peace at the national level, which indicates a possible path for eventual international processing. The Inter-American Court of Human Rights should be able to examine cases involving peace that meet justiciability requirements and clarify the pro homine scope of peace, denounce oppressive peace, while also recognizing diverse interpretations of normative iterations at the national level. The next chapter addresses the perspectives of the judges of the Inter-American Court of Human Rights as to normative quality of peace and its relevance to human rights and the mandate of the Court.

5. The contribution of the Inter-American Court of Human Rights to positive peace – perspectives from the judges 5.1 INTRODUCTION The Inter-American Court of Human Rights has a particular role within the region through its contentious and advisory functions as it aims to uphold a public order of peace by way of issuing decisions clarifying the scope of positive peace as articulated within equality and non-discrimination standards. Indeed, Armin von Bogdandy notes that “[t]he typical legitimacy narrative of the international tribunals is very visible in their arguments: the tribunals are the beloved servants of peace.”1 This chapter provides the background for the establishment of the Court and an overview of the range of perspectives of the judges regarding the value and applicability of peace as a legal norm.

5.2

THE ADOPTION OF THE STATUTE OF THE COURT IN LA PAZ UPON THE FOUNDATION OF HIERARCHICAL PEACE

Symbolically, the Statute of the Inter-American Court of Human Rights was adopted by the Organization of American States General Assembly in 1979 in the city of La Paz, Bolivia. The city’s name is a short form of longer, prior versions linked to historical events during the period of colonization and independence. The first version, Nuestra Señora de La Paz, is originally rooted in the peace achieved after a bloody insurrection by encomenderos, led by Gonzalo Pizarro, in 1544 against the Viceroy of Spain, Blasco Nuñez Vela 1 Armin von Bogdandy and Ingo Venzke, “En nombre de quien? Un estudio sobre la autoridad pública de los tribunales internacionales y su justificacíon democrática” in Eduardo Ferrer Mac-Gregor and Alfonso Herrera García (eds), Dialogo Jurisprudencial en Derechos Humanos Entre Tribunales Constitucionales y Cortes Internacionales (Tirant lo Blanch 2013) p. 90.

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(who was decapitated; his head was actually impaled on a pike as a symbol of victory).2 The encomenderos were protesting the New Laws of the Indies for the good treatment and preservation of the Indians. The New Laws sought to terminate the slavery of the indigenous people by ending the encomienda system and converting the indigenous people into tax-paying subjects of the King of Spain, the Holy Roman Emperor Charles V.3 Unfortunately, the peace achieved maintained the encomienda system and prevented emancipation of the indigenous people. In 1825, the second version of the name, La Paz de Ayacucho, was linked to the peace settlement at Ayacucho (originally founded by Francisco Pizarro) when the Republicans defeated the Spanish Army in 1825 during the last battle of the Spanish American Wars of Independence.4 From its inception, it may be suggested that peace within Latin America was marked by an orientation towards repelling foreign intervention but which failed to address systemic structural violence that maintained internal social exclusion and exploitation rooted in the legacy of colonization. Indeed, Simón Bolivar predicted that Latin American nations would struggle to maintain republican democratic models. He characterized their social and political context to be more responsive to the tradition of caudillismo, which has characterized authoritarian regimes and populist leaders to the present time.5 Latin America commenced with a peace enjoyed by and for elites, rather than by and for the people. Roberto Gargarella describes Latin America as having been marked by dire forms of oppression for centuries ... These extreme situations of inequality included the presence of slaves, the domination of aboriginal groups ... who were cruelly exploited in mitas and yanaconazgos, the denial of fundamental rights to women, the deprivation of all political rights to the poor ...6

2 The encomienda system issued grants to conquistadores guaranteeing the slave labor of the indigenous people. 3 The New Laws were based on advocacy by Bartolome de La Casas, who chronicled the abuses against the indigenous populations and enunciated the concept of human dignity, which is the foundation of human rights. 4 Ayacucho means “dead corner” on account of the large amount of casualties found on the field. 5 Alvaro Vargas Llosa, “Simon Bolivar: El Caudillo, el Populismo, y la Democracia”, El Independent (23 July 2014), https://​independent​.typepad​.com/​elindependent/​2014/​ 07/​sim​%C3​%B3n​-bolivar​-el​-caudillo​-el​-populismo​-y​-la​-democracia​.html (accessed 15 July 2020). 6 Roberto Gargarella, “Equality” in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar Publishing 2017) p. 178.

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As a point of departure, it is suggested that the Inter-American Court of Human Rights is committed to addressing the consequences of insufficient positive peace within the region, articulating the fundamental importance of non-discrimination and equality, and calling upon states to correct institutional dysfunction.7

5.3

SEATING THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN COSTA RICA – TOWARDS POSITIVE PEACE

The American Convention on Human Rights was signed in San Jose, Costa Rica in 1969. Costa Rica offered to seat the Court in San Jose and provided it with legal staff. The location of the Court is significant because of its particular characterization as a nation of peace. After victory in the civil war, in which 2,000 people died, on December 1, 1948 President José Figueres Ferrer (a Social Democrat), inspired by H.G. Wells’s Outline of History, abolished the military of Costa Rica. The following year, the Constitution was amended to formalize the abolition of the Army in Article 12. The military budget was redirected towards public education, health care, and culture. He also granted citizenship to the African-descent communities in Costa Rica, as well as the right to vote (along with women and illiterates). Hence, the Inter-American Court of Human Rights is seated in a nation that has no army and thus renounces the use of force to resolve disputes – the quintessential model of a Kantian republic. Yet, it is the country’s commitment to upholding social justice and the elimination of structural violence that reveals its full worth as a site for inspiration for the Court. Indeed, Judge Cançado Trindade noted that the most pressing challenge to implementation of peace is intrastate issues, rather than inter-state disputes.8 7 Claudia Martin and Diego Rodriguez-Pinzon, “Strengthening or Straining the Inter American System on Human Rights” in Yves Haeck, Oswaldo Ruiz-Chiriboga and Clara Burbano-Herrera (eds), The Inter American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015). They discuss several challenges, including how the Court receives additional financial support from international agencies, foundations and European states, instead of OAS states. They opine that universalization of the Inter-American Treaties is still a challenge: the number of ratifications of human rights treaties has not increased since 1996, with a few exceptions, and just a few states have accepted the jurisdiction of the Court. The new instruments on discrimination have not been adopted by states, and constitutional tribunals have been abandoned at the national level. States have not all adopted laws to implement the decisions of the Court. 8 Antônio Augusto Cançado Trindade, “The Historical Recovery of the Human Person as Subject of the Law of Nations” 1(3) Cambridge International Law Journal (2012) pp. 8–59.

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As a human rights court, the Inter-American Court of Human Rights has a mandate to address domestic obligations to guarantee the components of positive peace, i.e. human rights, in particular equality and non-discrimination, as well as the elements of sustainable peace-effective institutions providing access to justice.9 As articulated by Johan Galtung in 1969, positive peace calls for: the presence of cooperation between people and states, the “integration of human society”; incorporating social justice (equal opportunity/enjoyment of social contract/human dignity), respect for human rights, and the elimination of “structural violence” which causes poverty, inequality, exclusion, death, or disability through inequitable distribution of resources addressing basic human needs (such as food, medicine, housing). It also includes the denial of equal protection in cases addressing domestic violence, hate crimes, etc.10 The next section will discuss the perspective of former and current judges of the Inter-American Court of Human Rights on the normative scope of peace.

5.4

THE NORMATIVE SCOPE OF PEACE – PERSPECTIVES FROM FORMER PRESIDENTS AND CURRENT JUDGES OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

It is significant that the former presidents and current judges of the Inter-American Court of Human Rights are supporters of normative recognition of peace and of the role of courts in its construction. This section presents their views on the pluralistic normative scope of peace and their concerns regarding the contextual challenges to its implementation in the current epoch. According to the former President of the Inter-American Court of Human Rights, Judge Héctor Gros Espiell, peace is a common, universal aspiration of the human race, a value, a principle, and an obligation.11 Moreover, he opines that peace should be considered to be both a right and duty of states, individuals, and international organizations. Pursuing the theory of interconnectedness of rights, Gros Espiell suggested that the right to peace is a way of protecting

9 Of the 35 member states of the OAS, the following 20 have accepted the Court’s contentious jurisdiction: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay. 10 Johan Galtung, “Violence, Peace, and Peace Research” 6 Journal of Peace Research (1969) pp. 167–191. Structural violence refers to the phenomenon of social structures or social institutions inflicting harm upon people by preventing them from meeting their basic needs. 11 Héctor Gros Espiell, “El derecho humano a la paz” 3 Anuario del derecho constitucional latinoamericano (2005).

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the right to life, which is violated by war and violence. Furthermore, he argued that it may be considered jus cogens, given its status as a corollary to the prohibition of the use of force, an obligation erga omnes. He described the right to peace as both an individual and collective right that should be recognized as having a juridical quality: with capacity for processing as a claim right, penalization for violation, and provision of compensation through civil, criminal, or administrative procedures enforced at the domestic level through legislation, executive policy, or judicial decisions. At the international level, he argued that it may engage state responsibility and individual criminal responsibility. Furthermore, Gros Espiell supported replacing the current culture of violence with a culture of peace through education, as confirmed within the OAS Charter Article 3(n) and the Additional Protocol to the American Convention on Human Rights, in the area of Economic, Social, and Cultural Rights (Protocol of San Salvador), Article 13(2).12 Hence, he set forth a broad holistic framework for recognition of pro homine peace at the regional level to be supported by the state, society, and the Inter-American system, including the Court. Another former President of the Inter-American Court of Human Rights, Judge Antonio Cançado Trindade, was actually one of the legal experts invited by UNESCO to draft a declaration on the right to peace in 1997.13 He related that UNESCO surveyed member states and identified three positions on the normative quality of peace: (1) the right to peace is a human right, (2) it is a moral right, or (3) it is an aspiration, and that there was discomfort with recognizing it as a legal right.14 Cançado Trindade stated that he supports the right to peace as belonging to peoples, therefore a collective right, and one 12 OAS Charter, Article 3(n): “The education of peoples should be directed toward justice, freedom, and peace.” Protocol of San Salvador, Article 13(2): The States Parties to this Protocol agree that education should be directed towards the full development of the human personality and human dignity and should strengthen respect for human rights, ideological pluralism, fundamental freedoms, justice and peace. They further agree that education ought to enable everyone to participate effectively in a democratic and pluralistic society and achieve a decent existence and should foster understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups and promote activities for the maintenance of peace. 13 Antonio A. Cançado Trindade, “Some Reflections on the Justiciability of the Right to Peace, on the Occasion of the United Nations Retaking of the Subject by the United Nations” 11(11) Revista do Instituto Brasilero de Direitos Humanos (2011). Of interest, in the consultations with states, Brazil warned that the right to peace should not infringe on the Security Council and should not apply to internal violence as a violation of the right to peace. 14 A.A. Cançado Trindade, “The Right to Peace and the Conditions for Peace”, 21 Diálogo – The Human Right to Peace: Seed for a Possible Future (UNESCO/Paris June

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that is also an extension of the right to life. Further, he concluded that it can be protected by international courts in concrete cases: for example, involving the right of indigenous groups to enjoy the right to life, protection of culture, and protection from displacement; the right of people to be protected from massacre; or the right of a society to live in peace free from fear of health risks on account of nuclear tests.15 He implicitly builds on the concept of Gründnorm by identifying peace as an end and a fundamental principle of international law that contributes to the protection of the human being and that is inclusive of norms such as the prohibition of the unlawful use of force, the principle of pacific dispute resolution, non-refoulement guarantees for refugees, etc.16 He considers principles to be a manifestation of the international juridical conscience that upholds the humanization of international law.17 This approach seeks to guide the evolution of the international legal system

1997) pp. 20–21. He wondered why the international arms trade did not command more attention within the UN. 15 I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146. I/A Court H.R., Case of the Moiwana Community v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 15, 2005. Series C No. 124. I/A Court H.R., Case of Barrios Altos v. Peru. Merits. Judgment of March 14, 2001. Series C No. 75. I/A Court H.R., Case of the Caracazo v. Venezuela. Merits. Judgment of November 11, 1999. Series C No. 58. I/A Court H.R., Case of the Caracazo v. Venezuela. Reparations and Costs. Judgment of August 29, 2002. Series C No. 95. I/A Court H.R., Case of the Plan de Sánchez Massacre v. Guatemala. Merits. Judgment of April 29, 2004. Series C No. 105; I/A Court H.R., Case of the 19 Merchants v. Colombia. Merits, Reparations and Costs. Judgment of July 5, 2004. Series C No. 109. I/A Court H.R., Case of the Mapiripán Massacre v. Colombia. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 134. I/A Court H.R., Case of the Pueblo Bello Massacre v. Colombia. Merits, Reparations and Costs. Judgment of January 31, 2006. Series C No. 140. I/A Court H.R., Case of the Ituango Massacres v. Colombia. Preliminary Objection, Merits, Reparations and Costs. Judgment of July 1, 2006. Series C No. 148. I/A Court H.R., Case of Montero Aranguren et al. (Detention Center of Catia) v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of July 5, 2006. Series C No. 150. I/A Court H.R., Case of the Miguel Castro Castro Prison v. Peru. Merits, Reparations and Costs. Judgment of November 25, 2006. Series C No. 160. I/A Court H.R., Case of La Cantuta v. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162. ICJ, Nuclear Tests cases (New Zealand versus France, 1974 vol. II) – Pleadings, Oral Arguments, Documents, p. 7. 16 Antonio Augusto Cançado Trindade, Foundations of International Law: The Role and Importance of its Basic Principles (2005), http://​www​.oas​.org/​es/​sla/​ddi/​docs/​ publicaciones​_digital​_XXX​_curso​_derecho​_internacional​_2003​_Antonio​_Augusto​ _Cançado​_Trindade​.pdf (accessed 15 July 2020). 17 Ibid.

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and the application of norms and rules to respond to the changing needs of the international community and the aspirations and protection interests of mankind. He credits humanization of law as manifesting itself within various protection-oriented normative regimes, such as Human Rights Law, Refugee Law, International Humanitarian Law, International Criminal Law, Law of the Sea, Environmental Law, etc. Judge Cançado Trindade stated that peace applies to the relation between society and state and the relation between states, as well states and other societies, and underscores the primacy of law over force. In his view, peace is a foundational value and end of the international legal order and requires correction of contrary practices by states and non-state actors. Pursuant to his view, the Inter-American Court of Human Rights is an active champion of peace due to its jurisprudence protecting indigenous people, refugees, victims of threats to life, etc. A third former President of the Inter-American Court of Human Rights, Diego García-Sayán, acknowledged the right to peace and the state’s obligation to guarantee its enjoyment in the context of transitional justice in his concurring opinion on the Massacre of El Mozote: A negotiated solution to the internal armed conflict raises several issues regarding the weighing of these rights, within the legitimate discussion on the need to conclude the conflict and put an end to future serious human rights violations. States have a legal obligation to address the rights of the victims and, with the same intensity, the obligation to prevent further acts of violence and to achieve peace in an armed conflict by the means at its disposal. Peace as a product of a negotiation is offered as a morally and politically superior alternative to peace as a result of the annihilation of the opponent. Therefore, international human rights law should consider that peace is a right and that the State must achieve it.18

He further discusses the challenge of balancing the transition to peace with the clamor for accountability and justice: Thus, in certain transitional situations between armed conflicts and peace, it can happen that a State is not in a position to implement fully and simultaneously, the various international rights and obligations it has assumed. In these circumstances, taking into consideration that none of those rights and obligations is of an absolute nature, it is legitimate that they be weighed in such a way that the satisfaction of some does not affect the exercise of the others disproportionately. Thus, the degree of justice that can be achieved is not an isolated component from which legitimate

18 I/A Court H.R., Case of the Massacres of El Mozote and surrounding areas v. El Salvador. Merits, Reparations and Costs. Judgment of October 25, 2012. Series C No. 252. Concurring Opinion by Judge Diego García-Sayán, para. 37.

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frustrations and dissatisfactions can arise, but part of an ambitious process of transition towards mutual tolerance and peace.19

As described by Lisa Laplante, Judge Sayán signaled the importance of states undergoing transition to peace to pursue a nuanced approach in which reparative models of justice may be preferred over punitive models in order to achieve a balance with the society’s right to enjoyment of the right to peace.20 The Inter-American Court of Human Rights had declared the use of amnesty to be in violation of the American Convention on Human Rights in the Case of Barrios Altos v. Peru (2001) and Case of the Massacres of El Mozote and Nearby Places v. El Salvador (2012).21 Although several states pursued prosecution of officers thereafter, there emerged a backlash against the Court’s prohibition of amnesty in which several governments alleged an increased risk of loss of peace and sought to uphold amnesty legislation, including Nicaragua, El Salvador, Uruguay, Guatemala, and Peru.22 Colombia sought a middle way in which some amnesties were granted to ex-FARC combatants in return for reparations to victims or community service, resulting in a polarized division within society as to the legitimacy of the peace process.23 Mortimer Sellers

Ibid at para. 38. Lisa Laplante, “A Balancing Act: The Right to Peace and Justice” 59 Harvard International Law Journal (2019). 21 I/A Court H.R., Case of Barrios Altos v. Peru. Merits. Judgment of March 14, 2001. Series C No. 75. I/A Court H.R., Case of the Massacres of El Mozote and surrounding areas v. El Salvador. Merits, Reparations and Costs. Judgment of October 25, 2012. Series C No. 252. See Wayne Sandholtz and Mariana Rangel Padilla, “Law and Politics in the Inter-American System: The Amnesty Cases” 8(1) Journal of Law and Courts (2020). 22 Pablo González Domínguez and Edward J. Perez, “Challenges of the Inter American Court of Human Rights’ Case Law on Amnesty Laws within Contexts of Transitional Justice” 80 Persona & Derecho (2019) p. 81. See Inter-American Commission on Human Rights, “Press Release: IACHR Expresses Concern over the passing of Amnesty Law in Nicaragua” (12 June 2019) https://​www​.oas​.org/​en/​iachr/​ media​_center/​PReleases/​2019/​145​.asp (accessed 28 July 2020); Nelson Renteria, “El Salvador Wartime Parties Suspend Amnesty Bill”, Reuters (24 May 2019), https://​ www​.reuters​.com/​article/​us​-el​-salvador​-amnesty/​el​-salvador​-wartime​-parties​-suspend​ -controversial​ -amnesty​ -bill​ -idUSKCN1ST2TC (accessed 28 July 2020); “Uruguay Overturns Amnesty for Military Era Crimes”, BBC (27 October 2011), https://​www​ .bbc​.com/​news/​world​-latin​-america​-15473619 (accessed 28 July 2020). Jo Marie Burt and Paolo Estrada, “In Defiance of Court Rulings Guatemalan Congressional Leaders Push Amnesty Bill”, International Justice Monitor (5 September 2019), https://​www​ .ijmonitor​.org/​2019/​09/​in​-defiance​-of​-court​-rulings​-guatemalan​-congressional​-leaders​ -push​-amnesty​-bill/​(accessed 28 July 2020). 23 Courtney Hillebrecht, Alexandra Huneeus and Sandra Bords discuss legitimacy concerns of the Inter-American Court of Human Rights due to concern for its support 19 20

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explains a possible tension within the interrelationship between peace and justice: “Peace and order are corollaries of justice. Justice creates peace and order, but (pretended) peace and order without justice are simple oppression. As Calgacus said of the Romans, ‘solitudinem faciunt, pacem appellant’ – ‘they have made a wasteland and they call it peace.’”24 Bassiouni suggests that justice and peace are not counterpoints, rather they promote and sustain each other.25 Indeed, the President of the Inter-American Court of Human Rights, Judge Elizabeth Odio Benito, set forth: “I believe that we will only achieve peace through justice. Only through justice can we avoid the repetition of further atrocities, which in the past we have been unable to prevent as an international community or as individuals. Sadly, this constitutes part of our human legacy.”26 A fourth former President of the Court, Judge Humberto Sierra Porto, opines that peace is a value, the ultimate aim of the legal order, a common culture, and the result of respect for human rights.27 As an intellectual exercise, he considers the implication of defining peace more specifically: If peace is a human right then at the first level the State should not interfere with it; at the second level it should have the obligation to provide conditions for the enjoyment of the right (this refers to structural support for the peaceful coexistence of the people within the country); and as a third-generation right it would be viewed as applying to individuals, collectivities, and states as it is essential for humanity and peaceful coexistence at the global level. At the local level, Judge Sierra notes that peace applies to police norms dealing with civil protests and the Court may review the proportionality of measures taken by the State. At the national level, he remarks that there are conflicts in practice between umbrella values of the rights to peace, truth, and justice, in spite of the fact that they are supposed to be complementary to each other. He notes

of criminal prosecution of atrocity crimes, striking down amnesty laws in five Latin American countries, resulting in critiques regarding the possible negative impact on peace negotiation and consolidation. They commend the Court’s contribution to supporting recognition of the duty of the state to create peace and attend to victims’ rights. Courtney Hillebrecht, Alexandra Huneeus and Sandra Bords, “The Judicialization of Peace” 59 Harvard International Law Journal (2018) p. 279. 24 Mortimer Sellers, “The Value and Purpose of International Law” 111 American Society of International Law Proceedings (2017) pp. 301–305. 25 C. Bassiouni, “Justice and Peace: The Importance of Choosing Accountability over RealPolitik” 35 Case Western Journal of International Law (2003) p. 191. 26 Elizabeth Odio Benito, “Justice for Peace: No to Impunity” in Christopher C. Joyner (ed.), Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998 (Association Internationale de Droit Penal 1998) p. 153. 27 Interview 9 March 2019.

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the dilemma present in Colombia in which problems arose within transitional justice mechanisms that sought reparative justice to cultivate peace, thereby reducing retributive approaches, but provoking disagreement within society.28 The Colombian peace accord is a political instrument as it addressed social problems regarding inclusion and state presence, which in turn prompted legal reforms of the Colombian Constitution, resulting in dissent.29 He suggests that peace can be considered a filler when the law is not clear. For example, courts can apply peace as a value instead of law in order to achieve peace in cases in which the application of law would not result in peace. For example, the Colombian Peace Tribunal chose non-implementation of extradition of a former FARC commander accused of dealing narcotics to the United States in order to respect the terms of the peace accord, which established a time limit for extradition.30 At the international level, Judge Sierra suggests that the Inter-American Court of Human Rights may give content to peace if the law has not provided meaningful development, but that peace should be founded within law or constitutions in order to be applied by judges. In addition, the Court can create a standard of interpretation of peace when states show similar interpretation. Judge Sierra suggests that one can bring peace to the Court as a claim in conjunction with another right within the American Convention, such as the right to life. He does not believe that peace is yet a customary norm as there are not enough cases and the practice does not confirm an obligatory character to the norm. One may counter that the number of cases involving peace within the Colombian Constitutional Court (discussed in Chapter 4) may indicate a positive trend in favor of recognizing state practice, and the fact that all Latin American States recognize the obligation not to use force within the region provides evidence of opinio juris. Judge Sierra is concerned about the phenomenon of corruption, which he identifies as being the antithesis of peace as it creates a context that impacts peace, which is the basis of human rights. Like peace, corruption requires both legal and political approaches. 28 See e.g. Rebekka Friedman, León Sánchez, Camilo Nelson and Eric Wiebelhaus-Brahm, “Securing the Peace and Promoting Human Rights in Post-Accord Colombia” in James Meernik, Jacqueline H.R. DeMeritt and Mauricio Uribe Lopez (eds), As War Ends: What Colombia Can Tell Us about the Sustainability of Peace and Transitional Justice (Cambridge University Press 2019). 29 See e.g. Alejandro Gómez-Velásquez, “The Constitutional Framework for Transitional Justice in Colombia” 14(28) Opinión Jurídica (2015) pp. 21–44, http://​ www​.scielo​.org​.co/​scielo​.php​?script​=​sci​_arttext​&​pid​=​S1692​-25302015000200002​&​ lng​=​en​&​tlng​=​en (accessed 25 July 2020). 30 “Colombia’s Peace Tribunal defies an American Extradition Request”, The Economist (18 May 2019), https://​www​.economist​.com/​the​-americas/​2019/​05/​18/​ colombias​-peace​-tribunal​-defies​-an​-american​-extradition​-request (accessed 25 July 2020).

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A fifth former President of the Court, Judge Eduardo Ferrer Mac-Gregor, suggests that the Court concretely contributes to peace through its provisional measures pursuant to Article 63(2) of the American Convention.31 The Court responds to individual cases marked by extreme gravity and urgency that require prevention of irreparable harm: e.g. threat to life and/or physical integrity of human rights defenders, indigenous community representatives, journalists, and judges; arbitrary detention of political opponents; and threat of refoulement of refugees, etc.32 Perhaps the most innovative provisional measure linked to positive peace is that of the Case of Vélez Loor v. Panama (2020) involving migrants held in reception centers in Panama during the COVID 19 pandemic.33 The President of the Inter-American Court of Human Rights, Judge Odio Benito, issued a provisional order which applied to socio-economic rights, as it called upon the state to protect all migrants (taking into account the special inter-sectoral vulnerability of persons due to gender and age) held within the migrant reception centers in Panama by taking the following measures to protect their rights to health (including non-discriminatory access to health care), physical integrity, and life:34 A. Reduce overcrowding to the lowest possible level so that recommended guidelines for social distancing can be respected to prevent the spread of the virus,

Interview 13 March 2019. Article 63(2) of the American Convention provides: In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission. 32 Recent provisional measures include I/A Court H.R., Matters of Certain Penitentiary Centers of Venezuela. Humberto Prado. Marianela Sánchez Ortiz and family with regarding Venezuela. Provisional Measures. Order of the Inter-American Court of Human Rights of July 8, 2020. I/A Court H.R., Case of Mack Chang et al. v. Guatemala. Provisional Measures. Order of the Inter-American Court of Human Rights of June 24, 2020. I/A Court H.R., Matter of Members Choréachi Indigenous Community regarding Mexico. Provisional Measures. Order of the Inter-American Court of Human Rights of June 10, 2020. The Court’s provisional measures are available at http://​ www​.corteidh​.or​.cr/​medidas​_provisionales​.cfm​?lang​=​en. See Clara Burbano Herrera, Provisional Measures in the Case Law of the Inter-American Court of Human Rights (Intersentia 2010). Clara Burbano Herrera and Yves Haeck, “Provisional Measures: Inter-American Court of Human Rights (IACtHR)”, Max Planck Encyclopedia of International Procedural Law (Oxford University Press 2019). 33 I/A Court H.R., Case of Vélez Loor v. Panama. Provisional Measures. Adoption of Provisional Measures. Order of the Inter-American Court of Human Rights of July 29, 2020. 34 Case of Vélez Loor Vs. Panama. Provisional Measures. Adoption of Urgent Measures. Resolution of the President of the Inter-American Court of Human Rights (26 May 2020). 31

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taking into account people with risk factors, and including the possibility of examining alternative and based measures in the community. B. Determine, when possible, in accordance with the best interests, family or community reception options for unaccompanied migrant girls, boys and adolescents, as well as for those who are together with their families preserving the family unit, in accordance with the provisions of Advisory Opinion OC-21/2014. C. Guarantee respect for the principle of non-refoulement of all foreign persons, when their life, security or personal integrity is at risk, as well as effective access to asylum procedures when appropriate. D. Adopt measures to prevent the risk of violence, and in particular that of a sexual nature, to which migrant women, girls and boys are exposed. E. Establish protocols or action plans for the prevention of the contagion of COVID-19 and the care of infected migrants, according to the recommended guidelines. Among other aspects, make sure to carry out health checks on each person who enters the establishment, verifying if they have a fever or symptoms of the disease; take biological samples from all those cases classified as “suspect”, and adopt the necessary medical care, quarantine and / or isolation measures. F. Provide migrants with free and non-discriminatory access to health care services, including those necessary to face the COVID-19 disease, guaranteeing quality and effective medical services and the same standard of care that is available in the community. G. Provide pregnant women with free access to sexual and reproductive health care services as well as maternity care services, and provide adequate health care services for girls and boys. H. Adopt the necessary measures to overcome legal, language and cultural barriers that hinder access to health and information. I. Take measures to ensure natural ventilation, maximum cleaning, disinfection and waste collection to prevent the disease from spreading. J. Continue with the free provision of masks, gloves, alcohol, disposable towels, toilet paper and garbage bags, among other elements, both for the population that is in the establishments and the custodial and health personnel. K. Promote, through the necessary supplies and information, personal hygiene measures recommended by health authorities, such as regular hand and body washing with soap and water to prevent the transmission of said virus and other infectious diseases. L. Provide sufficient food and drinking water for personal consumption, with special consideration of pre-natal and post-natal nutritional requirements. M. Enable access to mental health services for people who require it, taking into account anxiety and / or other pathologies that may be generated as a result of the fear caused by the COVID-19 situation. N. Guarantee access to the Migration Reception Stations of the Ombudsman’s Office and other independent monitoring mechanisms, as well as international organizations and civil society. O. Prevent the measures adopted from promoting xenophobia, racism and any other form of discrimination.

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According to Judge Freire, the application of provisional measures to address socio-economic rights, such as the right to health, indicates the Inter-American Court of Human Rights’ willingness to address positive peace protection issues though progressive interpretation of the principles of effet utile and pro homine approach to its mandate.35 Judge Ferrer Mac-Gregor uses a metaphor of the sun to confirm the fundamental value of peace: peace is its center and the rays are composed of human rights, democracy, and the rule of law. In his view, the Court may be considered a peace institution as the enjoyment of human rights is a manifestation of peace. Nevertheless, Mac-Gregor warns of the lack of solidarity within the region and the tendency of younger generations to value security over human rights as casting a shadow over the sun. The current President of the Court, Judge Elisabeth Odio Benito, declared that the umbrella values of peace, justice, and democracy are intertwined and interdependent.36 Specifically, she is a proponent of a gendered peace which respects women’s rights (discussed in Chapter 7). She considers law to have all the mechanisms needed to resolve conflicts, that it is a most excellent method for peace, as the alternative is violence. Moreover, she states that the Inter-American Court of Human Rights is the backbone of the democracies in the region and is the vanguard of provision of collective reparations, hence its value in providing a foundation for regional peace is significant. She supports education aimed at teaching peace, human rights, and democracy, and therefore is in favor of culture of peace policies. Yet, Judge Odio Benito is also concerned about the impact of corruption and the perverse application of sovereignty as an instrument to violate human rights, underscoring the hypocrisy of international politics as influenced by economic interests and an underlying threat to peace. The other current judges of the Inter-American Court of Human Rights are also supportive of peace and express its multifaceted normative qualities as well as challenges in implementation. Judge Eugenio Raúl Zaffaroni recognizes peace as supreme value. However, he is vexed by the irony that although the role of law is to contain violence, the present context is one in which law becomes an instrument of violence instead of peace.37 He cites

35 See Concurring Opinion by Judge Freire. I/A Court H.R., Case of Vélez Loor v. Panama. Provisional Measures. Adoption of Provisional Measures. Order of the Inter-American Court of Human Rights of July 29, 2020. 36 Interview 26 February 2019. 37 He elaborates this perspective in his dissent in the Advisory Opinion on the Denunciation of the American Convention on Human Rights and the Charter of the Organization of American States and the consequences for State human rights obligations (interpretation and scope of articles 1, 2, 27, 29, 30, 31, 32, 33 to 65 and 78 of the American Convention on Human Rights and 3(l), 17, 45, 53, 106 and 143 of the Charter

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concern for the influence of transnational corporations on governments, which presents a complex challenge as the world is marked by rising inequality, the reemergence of authoritarianism in response to populism, and the perversion of international law and human rights, e.g. the increased application of the use of force, application of sanctions, and penal measures “to protect life.”38 Furthermore, the increased phenomenon of institutional racism and xenophobia, characterized by the widespread use of detention and incarceration of minorities, asylum seekers, and other vulnerable groups, as well as the accompanying negative trend of subordination of the judiciary in relation to the executive within the region, indicates a regression from “peace law.”39 This includes threats, and removal of judges, loss of independence of the judiciary, salary reduction which stimulates corruption, selection on the basis of personal loyalty to political or economic groups, stigmatization on account of alleged links to human rights, disqualification, and labor vulnerability. Zaffaroni suggests that there is a need for more creativity and imagination within international law to address current challenges, including the recognition of the justiciability of second- and third-generation rights to promote peace. He explains that the Inter-American system seeks to address “institutional apartheid” in which fragile or nonexistent state institutions lead to discrimination against segments of the populations whose rights are not recognized or protected.40 He calls for comprehensive institutional redesign and concludes of the Organization of American States). Advisory Opinion OC-26/20, November 9, 2020. Series A No. 26. He is concerned about the risk of humanitarian intervention in Venezuela. 38 Interview 7 February 2019. 39 Eugenio Raúl Zaffaroni, “La Justicia como garante de los Derechos Humanos en Mexico y America Central: La Independencia del Juez”, La Justica como Garante de los Derechos Humanos: La Independencia del Juez (ILANUD 1996) p. 36. Zaffaroni notes the regional trend towards subordination of the judiciary to the executive: massive displacement of judges, threats, removal, removal of independence of judiciary, salary reduction – stimulating corruption, selection on the basis of personal loyalty to political or economic groups, stigmatization of link to human rights, disqualification, labor vulnerability, terrorization. He calls for institutional redesign and that the international and regional system should push institutional transformation. Eugenio Raúl Zaffaroni, “El Racismo Como Estructura Discursiva Contra Los Derechos Humanos” in Lorena Gonzalez Volio (ed.), Presente y Futuro de los Derechos Humanos: Ensayos en Honor a Fernando Volio Jimenez (Instituto Interamericano de Derechos Humanos 1998). He cites Michale Wieviorka, El espacio del racism Barcelona (Paidos Iberica Ediciones 1992). There are three levels of racism: inorganic present in all societies, with isolated manifestations; organic racism within institutions that promote discourses and an ideology; and official racism in which the state assumes it as an ideology. Racism is pursued via devaluation of persons and the maintenance of hierarchy. 40 Zaffaroni, “La Justicia como garante de los Derechos Humanos en Mexico y America Central”, supra note 39 at p. 36.

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that the international and regional system should push institutional transformation by strengthening the principle of the independence of the judiciary. This perspective articulates a primary role for the Court in fortifying the structural framework which is needed as a foundation of positive peace. Judge Ricardo Pérez Manrique believes that peace requires human rights guarantees.41 He states that the Inter-American Court of Human Rights contributes to peace through its non-repetition guarantees, which create peace (discussed in Chapter 6). He notes that the challenge to peace in Latin America is the phenomenon of internal conflicts, majoritarian governments sidelining the judiciary, fragmentation, demagoguery politics, and corruption. Finally, Judge Patricio Pazmiño Freire characterizes peace as a polycentric concept that includes the absence of violence, equality, non-discrimination, development, dialogue, and equity.42 He is concerned that peace is in recession within the region and that the construction of peace is challenged by the weakness of public order and institutions. He describes Latin America as being characterized by extreme poverty, exclusion, and long-standing disputes which confound governments and political parties that are unable to meet the challenge of providing peace via social stability. In his view, there are structural challenges that foment violence. He characterizes the Inter-American Court of Human Rights as one of the few achievements of regional integration and hence believes that it has an important role to play in promoting peace.

5.5 CONCLUSION Overall, the judges of the Inter-American Court of Human Rights provide a pluralistic normative vision of peace which is flexible but unified in their common acknowledgment of its value, confirming its intrinsic relationship to human rights as well as supporting a cognizance of the role of the Inter-American Court of Human Rights in affirming peace through its jurisprudence. Yet, their common disquiet regarding the structural challenges affecting the implementation of positive peace obligations regarding equality and non-discrimination underscores the urgency of the Court’s increased engagement. The next chapter presents the Court’s engagement as a responsive court which upholds structural equality and non-discrimination in pursuit of positive peace while confronting issues of justiciability and compliance.

Interview 14 March 2019. Interview 16 March 2019.

41 42

6. The responsive court and promotion of positive peace – upholding equality and non-discrimination – justiciability and compliance challenges 6.1 INTRODUCTION Although many of the former and current judges of the Court recognize peace as a regional or universal aim, there is a division regarding the justiciability of second- and third-generation rights, including peace. As a result, there are different justiciability paths for peace. It is suggested that the Inter-American Court of Human Rights concretely pursues implementation of peace through the issuance of non-repetition guarantees addressing structural violence. These orders often face challenges with compliance, thereby demonstrating the fragility of peace in practice. The Court has the possibility of defining the scope of a pro homine quality peace, thereby linking human rights to peace theory as a means of strengthening the value of the decisions.

6.2

FRAMING PEACE ACCORDING TO THE AMERICAN CONVENTION ON HUMAN RIGHTS

It is notable that neither the American Convention on Human Rights (ACHR) nor the American Declaration of Human Rights makes explicit mention of peace, instead referring only to the right of peaceful assembly in Article 15 and Article XXI respectively, thereby setting forth peace as a tool of the state to limit exercise of a right.1 The Inter-American Court of Human Rights has the mandate to identify the scope of legitimate limitation of peaceful assem

1

American Convention of Human Rights Article 15: The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others. 132

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bly, thereby checking excesses by the state involving the use of force that violate the obligation of negative peace through infringement of the principles of legality, proportionality, and necessity.2 Yet, the American Convention also articulates human rights pertaining to positive peace, including Article 24 on equal protection, Article 26 on progressive development, and Article 1 on non-discrimination.3 Peace may be raised as claim for recognition of obligation by the state if it is directly linked to the violation of a right within the ACHR, such as the right to life, or if there is a link to violation of the right to non-discrimination or if the applicant has been denied access to justice or judicial guarantees (in violation of Article 24 guaranteeing equal protection of the law) relating to peace if the norm is recognized at the national level.4 Article 32 of the ACHR sets forth a cosmopolitan vision of common responsibilities: “Every person has responsibilities to his family, his community, and mankind.” If peace is conceived as a duty instead of a right, the Inter-American Court of Human Rights can explain the obligation of the state to guarantee peace within society, between different communities.

American Declaration on Human Rights Article XXI: “Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature.” 2 See Edison Lanza, Special Rapporteur for Freedom of Expression, Inter-American Commission on Human Rights, Inputs from the Special Rapporteurship for Freedom of Expression of the IACHR for the General Comment No. 37 on Article 21: right of peaceful assembly (14 February 2020), https://​www​.ohchr​.org/​Documents/​HRBodies/​ CCPR/​GCArticle21/​Mr​_Edison​_Lanza​_ACHR​.pdf (accessed 15 July 2020). 3 Article 1. Obligation to Respect Rights: 1.The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. Article 24. Right to Equal Protection: “All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.” Article 26. Progressive Development: The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires. 4 Furthermore, the Protocol of San Salvador, Article 3, recognizes the right to enjoy rights “without discrimination of any kind for reasons related to race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.”

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The Court has discussed peace in an obiter dictum in relation to analysis of violation of human rights within the Advisory Opinion on the Environment and Human Rights, in which it identified the right to peace as being subject to risk of violation due to environmental displacement:5 ... according to Article 29 of the Convention, other rights are also vulnerable and their violation may affect the rights to life, liberty and security of the individual, and infringe on the obligation of all persons to conduct themselves fraternally, such as the right to peace, because displacements caused by environmental deterioration frequently unleash violent conflicts between the displaced population and the population settled on the territory to which it is displaced. Some of these conflicts are massive and thus extremely grave.

Alternatively, if a case involving the right or duty of peace is raised in a case involving a state which recognizes the justiciability of peace within its domestic laws, then the Court could assess its interpretation pro homine. In this manner, the Court may be able to construct peace of “particular quality,” linked to human rights and democracy. The Court has created other rights, such as the right to the truth and the prohibition of enforced disappearance; hence, construction of the obligation of peace would arguably be in keeping with this tradition of being a norm entrepreneur.6 However, there is also an indirect path to expanding the peace mandate of the Court towards addressing positive peace obligations by way of reference to Article 29 of the ACHR on Restrictions regarding Interpretation: No provision of this Convention shall be interpreted as: a. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;

5 The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/18, Inter-Am. Ct. H.R., Series A No. 23 (November 15, 2017) para. 66. In comparison, see the Court’s ober dictum on universal jurisdiction in I/A Court H.R., Case of Herzog et al. v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment of March 15, 2018. Series C No. 353. 6 I/A Court H.R., Case of Ivcher Bronstein v. Peru. Judgment of February 6, 2001. Series C No. 74, para. 186. I/A Court H.R., Case of the Constitutional Court v. Peru. Judgment of January 31, 2001. Series C No. 71, para. 123. I/A Court H.R., Case of Bámaca Velásquez v. Guatemala. Judgment of November 25, 2000. Series C No. 70, para. 211. See Inter-American Commission on Human Rights, The Right to the Truth in the Americas, OEA/Ser.L/V/II.152 Doc. 2 (13 August 2014), http://​www​.oas​.org/​en/​ iachr/​reports/​pdfs/​Right​-to​-Truth​-en​.pdf (accessed 15 July 2020).

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b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party; c. precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.

Article 29 may be understood as setting forth that restrictions on interpretation of rights within the ACHR may not preclude enjoyment of the right to peace if it is considered to be “inherent in the human personality or derived from representative democracy.” One may suggest that peace may fall under this characterization given the OAS Charter’s articulation of peace as an aim of the regional organization and member states in conjunction with democracy and human rights. This aim includes the positive peace elements of social security, social justice, peace education, and integral development.7 In particular, peace education may be considered to be justiciable under Article 13 of the Protocol of San Salvador. Hence, the regional human rights normative framework is firmly grounded in the pursuit of positive peace in various normative iterations. Of particular importance is the fact that there shall not be a restriction of enjoyment of the right to peace if it is recognized within national law; nor shall the ACHR be interpreted to limit the effect of other international human rights instruments, which may potentially include the UN Declaration on the Right to Peace.

6.3

EQUALITY AND NON-DISCRIMINATION IN RELATION TO POSITIVE PEACE

In spite of the fact that many Latin American constitutions are committed to equality, the region is considered to have the highest level of inequality in the world.8 As long as there is a lack of enjoyment of equality there will be a lack of enjoyment of peace and this underscores the exigency of engaging courts to define the scope of state obligations towards positive peace. David Landau articulates a vision of responsive courts: “The end goal, for example, may not be to ensure that judiciaries interpret and enforce rights in the same way across the region, but ensure that courts ameliorate rather than exacerbate weaknesses 7 OAS Charter Articles 1, 2, 3, and 30. Negative peace elements are also included, such as the prohibition of intervention, the condemnation of aggression, and the obligation to pursue pacific dispute resolution. 8 Roberto Gargarella, “Equality” in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar Publishing 2017) p. 192.

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in the political system.”9 Nevertheless, Roberto Gargarella stresses the need to address the organization of power in Latin America, which impedes equality, given that there are strong executives and judiciaries which may not be representative of the people, as well as a lack of participatory institutional processes for equality claims and policy design.10 Indeed, it has been noted that various courts within the region are subject to political influence or clientelism, which limit their ability to check abuses of political authority.11 In terms of framing the Inter-American Court of Human Rights as the lead responsive court in relation to promoting positive peace within the region, it has developed a rich jurisprudence that has sought to strengthen democratic institutions, underscore the value of human dignity, and empower vulnerable groups against oppression, thereby strengthening the evolution of positive peace case law.12 It has recognized the principle of equality and non-discrimination as jus cogens in Advisory Opinion No. 18 (September 17, 2003) on the Juridical Condition and Rights of Undocumented Migrants.13 Judge Cançado Trindade explains: The IACtHR sustained that States have the duty to respect and to secure respect for human rights in the light of the general and basic principle of equality and non-discrimination, and that any discriminatory treatment in relation to the protection and exercise of such rights (including labour rights) generates the international responsibility of the States. In the understanding of the Court, the fundamental principle referred to entered into the domain of jus cogens ...14

In addition, his separate Opinion underscores that the preservation of peace is a legitimate aim of law.15 One may consider whether the positive peace 9 David Landau, “Judicial Role and the Limits of Constitutional Convergence in Latin America” in Dixon and Ginsburg (eds), supra note 8 at p. 249. 10 Gargarella, supra note 8 at p. 193. 11 Raúl A. Sanchez Urribarri, “Between Power and Submissiveness: Constitutional Adjudication in Latin America” in Dixon and Ginsburg (eds), supra note 8 at p. 110. See David Landau, “Judicial Role and the Limits of Constitutional Convergence in Latin America” in Dixon and Ginsburg (eds), supra note 8 at p. 249. 12 I. de Paz González, The Social Rights Jurisprudence in the Inter-American Court of Human Rights: Shadow and Light in International Human Rights (Edward Elgar Publishing 2018). 13 I/A Court H.R., Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18, paras. 97–101 and 110–111. 14 Antonio Augusto Cançado Trindade, Jus Cogens: The Determination and The Gradual Expansion of its Material Content in Contemporary International Case-Law, p.  17, https://​www​.oas​.org/​dil/​esp/​3​%20​-​%20Cançado​.LR​.CV​.3​-30​.pdf (accessed 15 July 2020). 15 I/A Court H.R., Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18. Separate Opinion of Judge Antonio Cancado Trindade, para. 46.

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elements of equality and non-discrimination place erga omnes duties upon states vis-à-vis the international community but also vis-à-vis individual duties to each other. The next section discusses two competing trends within the Inter-American Court of Human Rights regarding the justiciability of socio-economic and cultural rights, which impacts our understanding of the normative value of peace. It is suggested that courts could pursue an analysis which identifies the violation of equality or non-discrimination and explain the impact upon the enjoyment of peace as an aim of the state and the regional organization.

6.4

DIRECT JUSTICIABILITY OF ECONOMIC, SOCIAL, CULTURAL, AND ENVIRONMENTAL RIGHTS AND IMPLICATIONS FOR THE JUSTICIABILITY OF PEACE

6.4.1

The Majority Approach to Addressing Structural Violence

What is required instead, is that the system be able to deliver quality solutions (not just decisions) in relation to the actual problems that people face, in situations where a claim seems to be more a symptom than the real underlying problem. J. Martínez Layuno16

Carbonell and Ferrer Mac-Gregor underscore the principle of a social compact grounded in the pursuit of human dignity; in their view the state should act on two fronts: to promote well-being and compensate suffering.17 Hence, the state would have a positive obligation to act in situations of unemployment, injury, housing, education, health, sustainable development, fiscal redistribution, collective rights, unions, etc. in order to realize the social compact. The perspective is that the state should take proper measures and not contradict the aim of social justice. Thus, the Inter-American Court of Human Rights seeks to interpret socio-economic rights pro persona/pro homine. Gisela de León, of the NGO Centro por la Justicia y el Derecho Internacional (Center for Justice and International Law), commends the Inter-American Court of Human Rights for promoting peace through its holistic defense of human rights. At the civil and political level it has quashed amnesty laws and called for accountability for 16 Juan José Martínez Layuno, “Access to Perfect or Adequate Justice? Justice Beyond the Right of Access to Courts” in Helen Ahrens Horst Fischer, Veronica Gomez, and Manfred Nowak (eds), Equal Access to Justice for All and Goal 16 of the Sustainable Development Agenda: Challenges for Latin America and Europe (Lit Verlag 2019) p. 237. 17 Miguel Carbonell and Eduardo Ferrer Mac-Gregor, Los Derechos Sociales y su Justiciabilidad Directa (Flores 2014).

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serious human rights violations in the context of armed conflict and issuance of provisional measures responding to attacks on judges.18 In addition, she confirms that the full enjoyment of peace requires respect for socio-economic rights, lauding the Court’s contribution to recognizing the right of access to land for indigenous people, access to medicine (HIV), and the elimination of poverty.19 De León concludes that one cannot enjoy peace if one is poor, hence the Court’s engagement on socio-economic rights is central to tackling structural challenges that promote exclusion and foment violence. Rodolfo Cardenal addresses the importance of responding to structural violence: Inequality and exclusion are assaults against the lives of the majority of human beings. If they do not snatch the slow death of poverty, hunger, and disease, then they lose the quick death of violence, a product of common delinquency, gangs, organized crime, trafficking of women and children, drugs, weapons, cars, domestic violence, paramilitaries, and other armed groups such as social cleansing. In this way, death is propagated and multiplied until it is unstoppable. The challenge is to fight in the structural, social, and personal spheres ... The common evil contains characteristics of structural and institutional injustice. The structures are unjust and the violence is institutionalized when the right to life, food, health, education, liberty, access to justice, to not be subject to arbitrary arrest, to not be tortured, or to be denied the right to freedom of expression and the right to political organization for a prolonged duration. Unjust institutionalization is expressed in legislation, customs, and ideologies.20

18 Interview March 26, 2019. See e.g. I/A Court H.R., Case of the Massacres of El Mozote and surrounding areas v. El Salvador. Merits, Reparations and Costs. Judgment of October 25, 2012. Series C No. 252. I/A Court H.R., Case of the Las Dos Erres Massacre v. Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 24, 2009. Series C No. 211. I/A Court H.R., Case of the Plan de Sánchez Massacre v. Guatemala. Merits. Judgment of April 29, 2004. Series C No. 105. I/A Court H.R., Case of Molina Theissen v. Guatemala. Merits. Judgment of May 4, 2004. Series C No. 106. I/A Court H.R., Case of Barrios Altos v. Peru. Merits. Judgment of March 14, 2001. Series C No. 75. I/A Court H.R., Case of Cuscul Pivaral et al. v. Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 23, 2018. Series C No. 359. 19 See I/A Court H.R., Case of Gonzales Lluy et al. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 1, 2015. Series C No. 298, para. 193. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146, para. 154. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, para. 28. 20 Rodolfo Cardenal, “El bien comun. Principio de la democracia, la ciudadania y los derechos humanos”, IIDH Quien responde por los derechos humanos de las poblaciones mas pobres en America Latina y el Caribe? Democracia v. Desigualdad (2007–2011) (IIDH 2012) p. 305.

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In contrast, Kenneth Boulding was critical of Galtung’s focus on structural violence and positive peace on account of an alleged failure to identify concrete answers to the problems, describing it as a metaphor rather than a model.21 If peace is a multidimensional concept, how do we avoid treating it in a unidimensional manner? There is a research need to disaggregate peace by analyzing the separate components and there are issues regarding the measurement clarity of components and interpretation.22 The Inter-American Court of Human Rights is striving to provide answers to structural problems through its jurisprudence addressing human rights issues that are related to the positive peace components of equality and non-discrimination. Indeed, Judge Ferrer Mac-Gregor expounds a vision for the Inter-American Court of Human Rights as encompassing equality, non-discrimination, and social justice to emancipate vulnerable groups within society: The Inter-American Court has the chance to add substance to the content of rights which for a long time were considered “second generation”. This takes on recognition of the rights of many vulnerable people, children (girls and boys), women, indigenous people, afro-descendent, disabled people, elderly, migrants, detained people, LBGT, and human rights defenders who are impeded from enjoying their rights.23

21 Kenneth E. Boulding, “Twelve Friendly Quarrels with Johan Galtung” 14(1) Journal of Peace Research (1977): 75–86 at p. 84. 22 See generally James M. McCormick and Neil J. Mitchell, “Human Rights Violations, Umbrella Concepts and Empirical Analysis” 49(4) World Politics (1997) p. 512. 23 Eduardo Ferrer Mac-Gregor, La justiciabilidad de los derechos economicos, sociales, culturales y ambientales en el Sistema interamericano de derechos humanos (Universidad Autonoma de Mexico 2017) p. 234. He describes the regional construction of ius constitionale commune within human rights with special emphasis on the link between effective human rights with democratic development conditions, above all to protect vulnerable sectors, citing Mariela Morales Antoniazzi, Proteccion supranacional de la democracia en Suramerica, en estudio sobre el acervo del ius constitucionale commune (UNAM 2015). See also Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi and Rogelio Flores Pantoja, Inclusíon, Jus Commune y Justiciabilidad de los DESCA en la Jurisprudencia Interamericana El Caso Lagos del Campo y Los Nuevos Desafios (Instituto de Etudios Constitucionales del Esado Queretaro 2018). They suggest that there has been a change of paradigm in the Inter-American Court of Human Rights jurisprudence from indirect justiciability of DESCA to direct justiciability. This is based on I/A Court H.R., Case of Lagos del Campo v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2017. Series C No. 340.

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He delineates the Court’s approach to structural inequality in his separate opinion, Case of the Hacienda Brasil Verde Workers v. Brazil:24 The American Convention does not contain an explicit concept of discrimination, nor of the groups which are subject to discrimination ... It gives some elements that should be taken into consideration, to identify structural discrimination derived from context or massive or collective patterns: A collective group (not individual), having immutable characteristics, or related to historical facts of discriminatory practices, may be minority or majority group, that these groups have in a situation of systemic subordination, marginalization or submission that prevents them from accessing basic conditions of human development.

The orientation towards structural discrimination is linked to Johan Galtung’s discussion of positive peace as requiring elimination of structural violence and discrimination.25 In particular, the Court’s recognition of the obligation of the state to guarantee social security is a decision which may be considered to support peace, as the OAS Charter recognizes social security and social justice as the basis for a lasting peace. The Case of Muelles Flores v. Peru (2019) involved an elderly person’s claim to social security and denial of access to justice.26 In his separate vote Justice Ferrer Mac-Gregor articulated a notion of “exceptional due diligence” due to vulnerable persons – and the phenomenon of “intersectional vulnerability,” including poverty, marginalization, and exclusion. He portrays the Court as seeking to progressively expand the reach of equality:27 The Muelle Flores case shows us that the confluence of diverse factors of vulnerability – which have been traditionally identified by the Inter-American Court of Human Rights in cases involving discrimination against women –, can also operate in situations not involving sex or gender; in the case of “age” and “hearing disability” there are multiple forms of vulnerability in the life of Mr. Muelle Flores, which has important consequences if one takes into consideration the failure to execute the judgments which recognized the right of social security within the domestic system.

The Court has upheld the interdependence of rights, for example when guaranteeing the right to health and the right to a life with dignity. The Court set forth 24 I/A Court H.R., Case of the Hacienda Brasil Verde Workers v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Judgment of October 20, 2016. Series C No. 318. Separate Opinion of Judge Ferrer Mac-Gregor Poisot, paras. 5 and 80. 25 Johan Galtung, “Violence, Peace, and Peace Research” 6(3) Journal of Peace Research (1969) p. 167. 26 I/A Court H.R., Case of Muelle Flores v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of March 6, 2019. Series C No. 375. 27 Ibid Separate Opinion of Judge Ferrer Mac-Gregor Poisot at para. 67.

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that states have a positive obligation to create conditions to avoid violations to the right to life in dignity thereby demonstrating an analysis that is supportive of a positive peace approach.28 Judge Pérez Manrique outlines the debate on justiciability of economic, social, cultural, and environmental rights (the Court uses the acronym DESCA for these rights) within the Inter-American Court of Human Rights in his partial dissent in the case of Lhaka Honhat v. Argentina.29 The first approach is one that links the violations of economic, social, and cultural right to the right of a person to be recognized as a person before the law (Article 3) and the right to effective remedy (Article 25), or on the basis of the express recognition within the Additional Protocol to the American Convention on Human Rights on Economic, Social, and Cultural Rights – The San Salvador Protocol.30 He describes the second approach as linking economic, social, cultural, and environmental rights to Article 26 of the American Convention on the progressive development of human rights: The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.

He suggests that since 2017, this article has been interpreted by the Court as recognizing the justiciability of rights which are derived implicitly or explic28 Consider I/A Court H.R., Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19, 1999. Series C No. 63. I/A Court H.R., Case of the “Juvenile Reeducation Institute” v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146. I/A Court H.R., Case of Servellón García et al. v. Honduras. Merits, Reparations and Costs. Judgment of September 21, 2006. Series C No. 152. 29 I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Merits, Reparations and Costs. Judgment of February 6, 2020. Series C No. 400. Partial Dissent by Judge Ricardo Peréz Manrique. 30 I/A Court H.R., Case of the “Juvenile Reeducation Institute” v. Paraguay. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 2, 2004. Series C No. 112. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125. I/A Court H.R., Case of Gonzales Lluy et al. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 1, 2015. Series C No. 298.

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itly from the Charter of the Organization of American States, as well as other international instruments, such as the American Declaration of the Rights and Duties of Man, the Protocol of San Salvador, the Universal Declaration of Human Rights, the Covenant on Economic, Social, and Cultural Rights, the national constitutions of the States Parties to the Convention, and others.31 Judge Manrique offers a third vision on justiciability based on the concept of interdependence of rights. He first reflected on his commitment to recognizing the justiciability of economic, social, cultural, and environmental rights in his Concurring Opinion in the Case of the National Association of Discharged and Retired Employees of the National Tax Administration Superintendence v. Peru (2019):32 The first thing that I consider appropriate to express is my conviction that Human Rights are interdependent and indivisible in such a way that the so-called civil and political rights are totally intertwined with the so-called economic, social, cultural and environmental rights. The interdependence and indivisibility of rights allows us to see the human being as a full holder of rights. Failure to see it this way will artificially fragment human rights and dignity. The second thing that I consider appropriate to express is my conviction about the special importance of the DESCA guarantee in our region. It is known to all that Latin America has high rates of inequality and poverty, in such a way that millions of people do not have real access to basic goods necessary for a decent existence. In this sense, I have no doubt that all political and social legal actors must be alert to this reality and act accordingly. In my particular case, my commitment to DESCA is based on an ethical and legal conviction that I expressed at the time as Judge of the Supreme Court of Justice of Uruguay and that I maintain as Judge of the Inter-American Court. Not taking DESCAs into account when administering justice from the Inter-American Court would be contrary to my vision of the interdependence and indivisibility of rights and, in turn, a limitation on the effective access to inter-American justice of individuals.

In his partially dissenting opinion in the Lhaka Honhat v. Argentina case, Judge Manrique outlines a vision for a harmonized approach by the Court:33 Article 26 of the Convention is what could be called a framework article that generally refers to ESCRs [economic, social, and cultural rights] without specifying 31 I/A Court H.R., Case of Lagos del Campo v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2017. Series C No. 340, addressing job security, as well as in cases of the right to health and social security. 32 I/A Court H.R., Case of the National Association of Discharged and Retired Employees of the National Tax Administration Superintendence v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 21, 2019. Series C No. 394. Concurring Opinion of Judge Ricardo Perez Manrique, paras. 2 and 3. 33 I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Merits, Reparations and Costs. Judgment of

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what they are and what they consist of. This article makes a reference to the OAS Charter for its reading and content. On the other hand, the Protocol of San Salvador, an instrument subsequent to the American Convention, identifies and gives content to DESCA. The Protocol is explicit in indicating which individual cases regarding DESCA can be brought to the attention of the Court: only with regard to freedom of association and education. For their part, other instruments of the inter-American corpus juris mention DESCA. In the ANCEJUB vote, I stated my vision on the indivisibility and interdependence of human rights, this leads me to express that I consider that the Inter-American Court does have jurisdiction to hear and rule on DESCA, both individually and collectively. These same principles allow me to make a systematic analysis of the Convention, the Protocol of San Salvador, the OAS Charter and other instruments of the inter-American corpus juris. Part II of the American Convention, which deals with the means of protection, states in its article 44 that: “Any person or group of people (…) may submit petitions to the Commission that contain denunciations or complaints of violation of this Convention by a State party”. For its part, Article 48 indicates that: “The Commission, upon receiving a petition or communication alleging the violation of the rights enshrined in this Convention, shall proceed in the following terms ...”. Likewise, Article 62 No. 3 of the Convention indicates that: “The Court has jurisdiction to hear any case regarding the interpretation and application of the provisions of this Convention that is submitted to it ...” ... . The articles of the Convention indicated above are clear that any of the rights indicated in the Convention without distinction of any kind (civil, political, economic, social, cultural and environmental) can be brought to the attention of both organs of protection and that they are competent to know about them. The mentioned articles do not make distinctions between civil, political, social, cultural and environmental in regards to their protection. To claim that the inter-American protection bodies can only know civil and political rights and not DESCAs, would be contrary, on the one hand, to the indivisibility and interdependence of rights and would lead to a fragmentation of the international protection of the person and its ownership. as a subject of international law.

The Inter-American Court of Human Rights interprets Article 26 to require the state to be active in meeting the obligation of progressive achievement, rather than espousing a position of passive omission to implement socio-economic rights or supporting a retrogression or weakening of socio-economic rights.34

February 6, 2020. Series C No. 400. Partially Dissenting Opinion of Judge Ricardo Perez Manrique, paras. 4–7. 34 Elard Ricardo Bolaños Salazar, “La justiciabilidad de los derechos económicos, sociales y culturales en el Sistema Interamericano a propósito del caso Lagos del Campo vs. Perú” 120 Gaceta Constitucional (2017) pp. 247–261, file:///​C:/​Users/​ CECILI​~1/​AppData/​Local/​Temp/​La​%20justiciabilidad​%20de​%20los​%20derechos​ %20económicos ​ , ​ % 20sociales​ % 20y​ % 20culturales ​ % 20en ​ % 20el ​ % 20Sistema​ %20Interamericano​%20a​%20propósito​%20del​%20caso​%20Lagos​%20del​%20Campo​ %20vs​.​%20Perú​_stamped​.pdf (accessed 20 July 2020).

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The Court affirmed the state’s duty to uphold socio-economic rights autonomously from Article 26, including the right to a healthy environment, food, water, cultural identity, and indigenous community property in the Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina (2020).35 The Court held that the state had failed to protect the indigenous community from infringement of their land by Creole communities that engaged in cattle ranching and logging. Another omission is that the state had failed to provide effective administrative and judicial processing of a case intended to resolve the land disputes, indicating the importance of guaranteeing procedural rights in order to uphold substantive rights. The majority of the Court espouses a progressive perspective on recognizing the justiciability of DESCA rights, which indicates a foundation for presentation of positive peace claims. As stated by Judge Ferrer Mac-Gregor: “Poverty, inequality and social exclusion are the invisible walls that separate our society. These are the real walls that we have to knock down to achieve development, democracy and peace.”36 6.4.2

Caveat Regarding the Justiciability of Second- and Third-generation Rights

Judge Eduardo Vio Grossi, in his partially dissenting opinion in Lagos Campos v. Peru (2017), recognizes that human rights may be derived from other normative sources than the American Convention, such as the OAS Charter, national laws, and other sources.37 Nevertheless, he opines that this does not justify a finding of justiciability before the Court, which he states is only ascribed to civil and political rights contained within the American Convention. He states that only the rights to trade union membership and education would be considered justiciable according to the Protocol of San Salvador. He characterizes the OAS Charter provisions establishing state obligations to achieve common aims of peace, Latin American integration, and development, rather than individual justiciable rights.38 According to his analysis, potentially peace education would be justiciable before the court because of the recognition

35 I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Merits, Reparations and Costs. Judgment of February 6, 2020. Series C No. 400. 36 Speech by Judge Eduardo Ferrer Mac-Gregor, 30 January 2018, https://​www​ .corteidh​.or​.cr/​docs/​comunicados/​cp​_05​_18​.pdf (accessed 11 October 2020). 37 I/A Court H.R., Case of Lagos del Campo v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2017. Series C No. 340. Partially Dissenting Opinion of Judge Eduardo Vio Grossi. 38 Ibid at p. 7.

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of justiciability of education according to Article 13 of the Protocol of San Salvador. Nevertheless, he is against recognizing the justiciability of other economic, social, cultural, and environmental rights contained in the OAS Charter because he fears that all underdeveloped states within Latin America risk being brought before the court on account of their underdevelopment. He opines that the Court has effectively protected socio-economic rights in prior cases by linking them to civil and political rights, such as physical integrity, property, judicial protection, or judicial guarantees, without resorting to Article 26. Judge Vio Grossi issued a dissent in the Lakha Honut v. Argentina case, in which he outlined that only national legislatures could recognize the justiciability of a socio-economic right:39 Now, just reading the aforementioned norms is enough to verify, clearly and without the slightest doubt, that they establish “principles”, “goals” or “mechanisms” for, joining efforts among the States Parties to the Charter of the OAS, “to ensure that international social justice prevails in its relations and for its peoples to achieve integral development, indispensable conditions for peace and security.” It should not be forgotten that all the norms mentioned are found in Chapter VII of that, called “Integral Development”. Thus, such rules establish obligations to do, consisting of cooperating and adopting public policies in order to achieve the development of the peoples of America. Thus, the objectives of the aforementioned norms, referring to “international social justice”, “integral development”, “just social order”, “economic development and peace”, “integration of the national community”, its “development and progress” and “being a developed country”, would “derive”, according to the interpretation provided by the Judgment, the corresponding human rights. And this would also happen with the “basic goals” related to, for example, the “substantial and self-sustained increase in the national product per capita” or the “equitable distribution of national income” or the “modernization of rural life” or the “industrialization accelerated and diversified” or the stability of the domestic price level”, or the “urban conditions” or “the initiative and private investment” or “the expansion and diversification of exports”. That is, the range of possibilities from which the interpreter could “derive” or “update” human rights not expressly contemplated in any international norm, would be enormous, not to say, without limit. And it is a phenomenon that is already current. Before, the Court decided, in accordance with article 26, although related to other conventional norms, cases related to the right to health, social security, labor law and the right to job security. Now it does so with respect to the rights to cultural identity, a healthy environment, adequate food and water, more solely on the basis of the provisions of said provision. If this trend is followed and carried to its extreme, all the States Parties

39 I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Merits, Reparations and Costs. Judgment of February 6, 2020. Series C No. 400. Partially Dissenting Opinion of Judge Eduardo Vio Grossi, paras. 63–67.

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to the Convention and that have accepted the jurisdiction of the Court, could eventually be brought before it for being underdeveloped or developing, that is, for not fully achieving the integral development or some of its facets, that is, “principles”, “goals” or “mechanisms” contemplated in the OAS Charter from which the Judgment derives rights. In this order of ideas, it should be underlined that the Judgment has advanced in this direction. Indeed, it affirms that there is “the obligation of the States to achieve the integral development of their peoples”, which “arises from articles 30, 31, 33 and 34 of the Charter”, for which reason logically it could be assumed, On the one hand, that, according to the Judgment, before the aforementioned obligation, there would be the corresponding right to development and that failure to comply with it, could give rise to an action before the Court for violation of the correlative human right. If this were indeed so, it would clearly seem far from what the States Parties wanted when signing the Convention or, at least, from the logic implicit in it, especially, by the way in which said Chapter VII is drafted. It is, therefore, evident that “the economic, social, and educational, science, and cultural norms, contained in the Charter of the Organization of American States, reformed by the Protocol of Buenos Aires” referred to in the Article 26, do not provide the Court with jurisdiction to hear and resolve possible violations of the rights that derive from them.

The concurring opinion by Judge Sierra Porto in the Case of Poblete Vilches and others v. Chile (2018) also presents concern for the possible negative impact upon the legitimacy of the Court due to its recognition of the justiciability of socio-economic, cultural, and environmental rights, which he fears is vague in scope:40 This conceptual omission, I believe, has a direct effect upon legal security of which we are also the guardians, thus having the consequence of the impossibility of completing an adequate subsumption of a concrete fact in relation to a norm. In fact, this approximation would seem to subsume the norm in relation to a fact. In this regard, it would be fitting to ask: Exactly what is the category of socio-economic, cultural, and environmental rights that are protected by the Convention? Where does this catalogue begin and end? This legal uncertainty does not only affect states, but also the victims of violations of fundamental rights who seek to utilize the system of individual petitions. For example, one may ask, “Which harm would require exhaustion of domestic remedies? An individual harm or a collective harm that had specific effects?” In my opinion, the approach taken within the cases previously cited do not answer any of these questions. As a Tribunal, we are obligated to give an answer which allows for predictability, the public confidence on the Inter American institutionalism depends upon this. These reflections are not only motivated in the spirit of generating a vigorous debate of ideas, but also by the genuine concern about the consequences and the

40 I/A Court H.R., Case of Poblete Vilches et al. v. Chile. Merits, Reparations and Costs. Judgment of March 8, 2018. Series C No. 349. Concurring opinion of Judge Sierra Porto.

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impact our decisions may have. In the actual climate of legal insecurity generated by the Lagos del Campo case, there opens the possibility of a wave of individual petitions based on presumed violations of socio-economic and cultural, environmental rights that may aggravate the problem of process congestion of the Commission, which would precisely damage the persons who they claimed to protect. As a Tribunal, we have the responsibility and the obligation not to ignore this reality, nor many other realities upon which our decisions will be applied.

Similarly, Judge Sierra Porto offered a similar warning in his concurring opinion in the case of Gonzales Lluy et al. v. Ecuador (2015) that the stability and future of the Inter-American system depends to a great extent on the balance that the Court achieves between the temptation to over-expand its competences and the need to make progress in legal standards for effective protection.41 He implicitly invokes Kenneth Boulding’s observation that solutions to structural violence require multidisciplinary approaches, moving beyond the law.42 He explains this perspective in his Concurring Opinion in the Case of the Garifuna Triunfo de La Cruz Community and its members v. Honduras (2015):43 The solution to these types of problems should be confronted by States in an integral manner, not only as a legal matter. One may derive from the facts of this case that the problems and conflicts regarding the right to property and the traditional use of the territory by the Community are only one aspect of the problem existing within the zone. It appears that at the base of these conflicts there are problems of absence of public policies – or a lack of consistent and adequate implementation – on the topics of registration, land redistribution, education, creation of spaces for integration and dialogue between the indigenous and non-indigenous communities. In order to find solutions to these conflicts it is necessary to elaborate integral public policies and strategies for coexistence that go beyond delimitation and demarcation of plots of land and are designed to avoid situations of permanent conflict. This requires assistance by different experts who should include, among others, sociologists, and social workers. Understanding that the rights of the indigenous communities cannot be understood as privileges above the rights of the rest of the population, the States should publicize and implement policies designed to avoid situations of inequality, with the end of guaranteeing the enjoyment of rights by all citizens, both indigenous and on-indigenous communities.

41 I/A Court H.R., Case of Gonzales Lluy et al. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 1, 2015. Series C No. 298. Concurring Opinion of Judge Sierra Porto, para. 33. 42 Kenneth E. Boulding, “Twelve Friendly Quarrels with Johan Galtung” 14(1) Journal of Peace Research (1977): 75–86 at p. 84. 43 I/A Court H.R., Case of the Garifuna Triunfo de la Cruz Community and its members v. Honduras. Merits, Reparations and Costs. Judgment of October 8, 2015. Series C No. 305. Concurring Opinion of Judge Sierra Porto.

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Consider also the partially dissenting opinion by Judge Sierra Porto in the Case of Dismissed Employees of Petroperú and others v. Peru (2017):44 ... The application of international norms within the internal ambit depends not only on its binding quality as international instruments, but also the recognition that the very national law treats these instruments as internal law. Secondly, that the incorporation of international norms and their interpretation should be made by international organs (like the Inter-American Court) in harmony with rules established by national law. Thus, within this complex universe of interaction between national and international, it is of fundamental importance that the interpretations developed by the Court enjoy the most legitimacy possible. On this depends that its incorporation be delivered by state authorities, which is even more important in light of the development of the conventionality control doctrine. The abuse of the principle pro personae and evolutionary interpretation – which does not take into consideration the normative aspects of international law which determine the reach of the Convention clauses can affect not only the legitimacy of the judgment in the concrete case, but also its implementation in the future as hermeneutical criteria relevant to the solution of controversies at the national level.

Judge Sierra Porto also provided a similar vote of partial dissent in the Case of Muelle Flores v. Peru.45 He indicated that socio-economic rights and environmental rights may be justiciable at the national level or even before the Court as long as they are linked to a right within the ACHR. Hence, he would agree that one may argue that one may bring a case involving the right to peace to the Court if it is linked to the right to life, for example: The present analysis does not deny the interdependence and indivisibility of civil, political, economic, social, cultural, and environmental rights, nor does it disregard the obligations which are derived from the San Salvador Protocol, for those states which ratified it. Nor does it mean that the Court considers that economic, social, cultural, and environmental rights, within their individual dimension, should not be protected or considered directly justiciable by other means, such as within domestic jurisdictions, for example, or including before this very Court, as long as its justiciability is formed by way of connection to the Convention rights, as the Tribunal has done in several prior occasions. At the same time, the principle pro persona implies that, by interpreting the provision of a treaty, one must benefit the application of the norm which gives greatest protection to the rights of a person and/or one should interpret the rights in a broad manner in favor of the individual. Nevertheless, the application of this principle cannot displace the use of other interpretive methods, nor may it fail to recognize 44 I/A Court H.R., Case of Dismissed Employees of Petroperú et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2017. Series C No. 344. Partial Dissent by Judge Humberto Sierra Porto, paras. 25–26. 45 I/A Court H.R., Case of Muelle Flores v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of March 6, 2019. Series C No. 375. Partial Dissent by the Judge Humberto Sierra Porto.

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the results achieved as a consequence of them, given that all of them should be understood in their entirety. To affirm the contrary, the unrestricted application of the pro persona principle will lead to delegitimization of interpretation. Thus, pursuant to the form of interpretation mentioned previously, it is clear that the Convention does not give competence to the system’s organs to directly protect economic, social, cultural, and environmental rights in their individual characteristic, neither the object and aim of the Convention nor the pro persona principle can be utilized to reach a different result. These cannot be utilized to validate an interpretive option that does not follow the norm and on the contrary, implies its modification. In this case, one is not facing an interpretation which better guarantees the norm than that which the pro persona principal allows given that this should be applied when the Court is facing two possible interpretations, valid and true to a conventional precept. Precisely, the direct justiciability of economic, social, cultural, and environmental rights as individual rights, by way of Article 26 of the Convention is not a valid interpretation, given that what is being attempted is to derive an interpretive pronouncement which does not correspond to the interpreted provision. Therefore, the Inter-American Court cannot take on the competence regarding the presumed violation of a right or liberty which is not included within the protection regime of the American Convention or in the San Salvador Protocol. On the other hand, regarding the evolutionary interpretation, the Court has repeatedly signaled that human rights treaties are living instruments, whose interpretation should share the evolution of time and the conditions of real life. This evolutionary interpretation is a consequence of the general rules of interpretation within Article 29 of the American Convention and in the Vienna Convention on the Law of Treaties. On this point, neither is it possible to invoke this method of interpretation to add rights to the protection regime of the Convention nor to grant competence to the Court when it does not have it. The adequate ambit of application is that of the evolutionary interpretation of a right or a liberty, or an obligation of the state, which exists and is included within the protection regime of the Convention or Protocol, in a different and generally wider meaning than that which the authors originally gave, as the Court has done in different occasions, above all in limiting or expanding the content of the rights recognized within the Convention, resorting to the international corpus juris. An example of this is the inclusion of the orientation of gender within the discussion of “any other social condition” as one of the motives of discrimination prohibited by article 1.1 of the Convention. Without prejudice to what I have indicated in this section, I am not insensitive to the importance of the justiciability of the economic, social, cultural, and environmental rights and their protection by way of the Inter-American Court. Nevertheless, it is possible to achieve this by way of less problematic ways regarding interpretation, which would be in accord with the competence given to the Court by the States and that which is stipulated by international law. As the Tribunal has done previously on repeated occasions previous to the present jurisprudential position, the economic, social, cultural and environmental rights can be protected by way of their linkage to other rights recognized within the Convention, that is by way of an indirect mechanism of protection.

Nevertheless, Isaac de Paz González declares that communitarian peace, justice, and democracy are the core Inter-American values, the very essence

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of the ACHR.46 He notes that respect for human rights in the ACHR member states depends mainly on the strengthening of the rule of law but he calls for responsive courts as necessary institutions for addressing social injustice:47 As a consequence, law cannot be a passive spectator of human suffering and courts should take concrete steps to build a new dimension of economic and social justice. Undoubtedly, the link between constitutional and international law is the axiological-normative aim affirmed in the ICESCR [International Covenant on Economic, Social and Cultural Rights] that stands for “the ideal of free human beings enjoying freedom from fear and want, [that] can only be achieved if conditions are created whereby everyone may enjoy economic, social and cultural rights”.

In conclusion, the justiciability of positive peace is grounded in the analysis of violation of non-discrimination and equality. The court may examine whether a measure is reasonable and has an objective, legitimate purpose and the proportionality of the measure in relation to its aim. Peace may be justiciable within national law or it may be linked to a right within the ACHR (e.g. right to life). Furthermore, peace is linked to social security, social justice, and education in the OAS Charter and the San Salvador Protocol and thus may be recognized as justiciable by the majority of the Court pursuant to Article 26 of the American ACHR and attains indirect justiciability via Article 29. The next section addresses non-repetition guarantees and the link to positive peace.

6.5

NON-REPETITION ORDERS OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS PURSUING SUSTAINABLE PEACE THROUGH STRUCTURAL EQUALITY AND NON-DISCRIMINATION

Perhaps the most compelling argument in favor of recognizing the added value of peace as an obligatory norm is its positive characteristics pursuing equality and non-discrimination. This section presents a selection of cases addressing land disputes and displacement of communities, including the rights to property, residence, movement, indigenous identity, and nationality in the context of equality and non-discrimination claims that are related to the pursuit of sustainable peace but which have met with compliance challenges. Gender cases are discussed separately in Chapter 7. In these cases, the Inter-American Court of Human Rights has called for non-repetition guarantees intended to 46 Isaac de Paz González, The Social Rights Jurisprudence in the Inter-American Court of Human Rights: Shadow and Light in International Human Rights (Edward Elgar Publishing 2018) p. 1. 47 Ibid at p. 14.

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correct structural and systemic inequality and discrimination that challenge sustainable peace. It is suggested that reframing the non-repetition orders as frameworks intended to promote positive peace may change how states perceive them and perhaps improve future compliance. The case of the Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (2013) involved a self-declared “peace community” that was displaced and subjected to violence, murder, enforced disappearance, and encroachment of property upon return.48 They filed amparos with the national courts to claim protection of human rights, including peace, but the courts did not consider the amparo to be the proper procedure for claiming a right to peace. The Inter-American Court of Human Rights ordered special non-repetition guarantees to address sustainable peace through restitution of property and safety guarantees to ensure their right to live in human dignity:49 Therefore, the Court considers, as it has in other cases, that the State must guarantee that the conditions of the territories that the State must restitute, as well as of the place where the members of the Cacarica communities live at present, are adequate for the safety and decent life of those who have returned and also of those who have not yet done so. To this end, the State must send periodically – at least once a month – official representatives to the territories from which these persons were displaced and, in particular, to the Peace Communities (“Esperanza de Diós” and “Nueva Vida”), for the five years that follow notification of this Judgment, in order to verify the situation of public order and, consequently, they must meet with the communities or the designated representatives of the latter. If, during these monthly meetings, the inhabitants of the communities express concern about their safety, the State must take the necessary measures to guarantee this, and these measures must be designed in collaboration with the beneficiaries of such measures.

As of 2020, the state had not yet complied with the order of restitution of the territory to the indigenous community in conditions of safety and dignity, nor was it able to complete effective investigation and prosecution of those responsible for violations or provide indemnification to victims. The community remains unable to enjoy sustainable peace. In the case of Norín Catrimán and others v. Chile (2014), the Inter-American Court of Human Rights addressed the arrest and detention of Mapuche indige-

48 I/A Court H.R., Case of the Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 20, 2013. Series C No. 270, para. 460. 49 Ibid at para. 460.

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nous leaders who led protests on land rights that became violent.50 They were prosecuted according to the Chilean Terrorism Law. The Court considered that the application of stereotypes and prejudices against the Mapuche indigenous leaders in the foundation of the sentences constituted a violation of the principle of equality and non-discrimination and the right to equal protection of the law, enshrined in Article 24 of the American Convention, in relation to Article 1.1 of the same instrument. The Court underscores the principles of equality and non-discrimination as the foundation of human dignity and the international legal system:51 As already indicated, Article 1(1) of the Convention establishes that the States Parties “undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” Meanwhile, Article 24 stipulates that “[a]ll persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.” Regarding the principle of equality before the law and non-discrimination, the Court has indicated that “the notion of equality springs directly from the oneness of the human family, and is linked to the essential dignity of the individual.” Thus, any situation is incompatible with this concept that, by considering one group superior to another group, leads to treating it in a privileged way; or, inversely, by considering a given group to be inferior, treats it with hostility or otherwise subjects it to discrimination in the enjoyment of rights that are accorded to those who are not so classified. The Court’s case law has also indicated that, at the current stage of the evolution of international law, the fundamental principle of equality and non-discrimination has entered the sphere of jus cogens. It constitutes the foundation for the legal framework of national and international public order and permeates the whole legal system.

As of 2020, the state remained in partial compliance regarding vacating sentences against the leaders, protecting witnesses, and providing psychological support and indemnification. One may contrast these cases with the Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina (2020) in which the Inter-American Court of Human Rights ordered the removal of the Creole community from the property claimed by the Lhaka Honhat indigenous community but called for use of pacific dispute resolution mechanisms, including mediation or arbitration, to facilitate the transfer. Although the Court accepted that the case may be brought to the national judiciary, it stated that 50 I/A Court H.R., Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile. Merits, Reparations and Costs. Judgment of May 29, 2014. Series C No. 279. 51 Ibid at para. 197.

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the judiciary cannot overturn the transfer order (thereby implying reference to the conventionality control doctrine):52 ... the Court orders the State to carry out the transfer of the Creole population, according to the guidelines set forth below: (a) The State must promote procedures for the voluntary transfer of the Creole population, while trying to avoid compulsory evictions. (b) In order to guarantee the foregoing, during the first three years counted from the notification of this Judgment, the state, judicial, administrative or any type of authorities, provincial or national, may not execute actions of forced or compulsory eviction of Creole settlers. (c) Without prejudice to the process of agreements established from Decree 2786/07 of 2007 onwards, and described in this Judgment, the State must make available to interested parties mediation or arbitration processes to determine the transfer conditions; in case of not resorting to them, the corresponding jurisdictional route may be used. In the framework of any of the aforementioned processes, those who attend them may adduce their claims and the rights that they consider to be of assistance to them, but they may not question the right to indigenous community property determined in this Judgment and, consequently, the order of the transfer outside indigenous territory. The authorities that eventually decide in such processes will not be able to adopt decisions that prevent compliance with this Judgment. (d) In any case, the competent authorities, administrative, judicial or of any nature, must ensure that the transfer of the Creole population becomes effective, safeguarding the rights of said population. In this sense, resettlement or access to productive land with adequate land infrastructure (including the installation of pastures and access to water for sufficient production and consumption, as well as the installation of necessary fences) and, where appropriate, technical assistance, must be effectively enabled, and training to carry out productive activities.

The Inter-American Court of Human Rights also issued an order to the state to remove the fences and livestock belonging to the Creole settlers from indigenous territory and study the lack of access to water and food as affected by the Creole livestock on their property. In addition, it called for the creation of an Action Plan to support the right to health and life of the indigenous community and a report (including the participation of the indigenous community) to be submitted to the Court within one year, which would be sent to

52 I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Merits, Reparations and Costs. Judgment of February 6, 2020. Series C No. 400, para. 290.

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the Commission for comment and then followed up by the Court:53 The report should delineate the actions to be taken: (a)

the conservation of the water, surface or underground, existing in the indigenous territory within lots 14 and 55, which are of use by the victim indigenous communities, as well as to avoid their contamination or to remedy the existing contamination; (b) guarantee permanent access to drinking water by all the members of the indigenous communities victims in this case; (c) to prevent the loss or decrease of forest resources in the indicated territory, as well as to seek their gradual recovery; and (d) permanently enable all members of the indigenous communities victims in this case, access to food in a nutritionally and culturally appropriate manner.

The Inter-American Court of Human Right held that the rights to a cultural identity, healthy environment, and adequate food and water had been infringed; hence it called upon the state to create a community development fund to support recovery of indigenous culture, food security programs, and documentation, as well as education of the indigenous traditions with the participation of the community. The state was ordered to provide 2 million US dollars to the fund. Judge Sierra Porto partially dissented and expressed concern for what he perceived to be a confusing role of the International Court of Human Rights in assuming a supervisory role in relation to compliance regarding the Action Plan that he deemed to be more appropriate for the Inter-American Commission of Human Rights.54 Herein lies discomfort regarding acceptance of the justiciability of second- and third-generation rights related to peace, as well as the scope of remedies. Enforcement requires policy measures to dismantle structural inequality and discrimination that require longer time frames and a variety of implementing partners from the state and civil society.

Ibid at para. 333. I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Merits, Reparations and Costs. Judgment of February 6, 2020. Series C No. 400. Partially Dissenting Vote of Judge Sierra Porto, paras. 27–30. 53 54

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In the Case of Nadege Dorzema et al. v. Dominican Republic (2012) the Court addressed the vulnerability of Haitian irregular migrants to injury, loss of life, detention, and expulsion due to:55 (a)

the absence of preventive measures to adequately address situations relating to migratory control on the land border with Haiti; (b) violence deployed by the illegal and disproportionate use of force against unarmed immigrants; (c) the failure to investigate violence, the absence of testimony by and the participation of the victims in the criminal proceedings, and the impunity of the events; (d) the detentions and collective expulsion without the due guarantees; (e) the lack of adequate medical attention and treatment to the injured victims; and (f) the demeaning treatment of the corpses and the failure to return them to the next of kin.

The Court held that there was de facto discrimination against the victims due to their migration status and that the state did not respect or ensure the rights of the Haitians in violation of Article 1(1) of the American Convention in relation to the rights to life (Article 4), humane treatment (Article 5), personal liberty (Article 7), fair trial (Article 8), judicial protection (Article 25), and the prohibition of collective expulsion (Article 22(9)). The Court called for training of the army, the national police, administration of justice officials, and border control personnel in the human rights of migrants, non-discrimination standards, and the use of force (proportionality, necessity, etc.), as well as dissemination of a human rights media campaign to migrants within the Haitian community in the Dominican Republic. Finally, the Inter-American Court of Human Rights called for a substantial preventive approach to address discrimination against migrants through permanent training of state officials:56 This Court considers it important to strengthen the institutional capacities of the bodies in charge of respecting and guaranteeing said human rights, through the training of members of the Armed Forces, border control agents and agents in charge of immigration procedures, in order to prevent events such as those analyzed in this case from being repeated ... b) the principle of equality and non-discrimination, especially applied to migrants and with a gender and child protection perspective, and c) due process in the detention and deportation of irregular migrants, in accordance with the standards established in this Judgment. Additionally, in order to meet these objectives and in the case of a continuous training system, said course must be taught permanently. To this end, the State must submit an annual report for

55 I/A Court H.R., Case of Nadege Dorzema et al. v. Dominican Republic. Merits, Reparations and Costs. Judgment of October 24, 2012. Series C No. 251, para. 237. 56 Ibid at para. 272.

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three consecutive years, in which it indicates the actions that have been carried out for this purpose.

These orders had not been complied with as of 2020. Similarly, in the Case of Expelled Dominicans and Haitians v. Dominican Republic (2014) the Court also called for training of border control and immigration agents to prevent non-discrimination:57 [The Court] considers it relevant to strengthen the respect and guarantee of the rights of the Dominican population of Haitian and Haitian descent, through the training of members of the Armed Forces, agents border control and agents in charge of immigration and judicial procedures, linked to immigration matters so that events such as those in this case are not repeated. To this end, it considers that the State must carry out, within a reasonable period of time, continuous and permanent training programs on issues related to said population in order to ensure that: a) racial profiles do not constitute, in any way, the reason for making an arrest or expulsion; b) strict observance of due process guarantees during any procedure related to expulsion or deportation of foreigners; c) no expulsions of persons of Dominican nationality are made under any circumstances; and d) no collective expulsions of foreigners are made.

The Court addressed a national context in which the Haitian population and those born in Dominican territory of Haitian descent lived in vulnerability and poverty, suffering discrimination from state authorities. They were denied personal identity documents and subjected to systematic collective expulsions without due process. The state was found responsible for violation of recognition of juridical personality (Article 3), nationality (Article 20), name (Article 18), identity and personal liberty (Article 7), freedom of movement and residence (Article 22), judicial guarantees (Article 8), judicial protection (Article 25), protection of the family (Article 17), privacy and arbitrary interference with family life (Article 11), non-discrimination (Article 1), and the rights of the child (Article 19). The Court underscored the obligation of the state to promote policies that recognize the human dignity of persons within its jurisdiction, irrespective of race, nationality, or status. Hence, it ordered the state to terminate judicial or administrative proceedings against the victims, register identity and nationality documentation, facilitate accessible birth certificate procedures, permit residency for those subject to arbitrary expulsion, and restore the nationality of those born in the Dominican Republic irrespective of the nationality of the parents. As of 2020, these orders had yet to be complied

57 I/A Court H.R., Case of Expelled Dominicans and Haitians v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2014. Series C No. 282, para. 464.

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with, thereby demonstrating the challenge of dismantling structural and systemic discrimination within the region. The Case of Roche Azaña v. Nicaragua (2020) addressed the plight of two brothers who in 1996 sought to migrate from Ecuador to the United States but were shot with AK weapons by the Nicaraguan army and national police while traveling in a vehicle with other migrants which failed to heed the authorities’ warning to stop for inspection.58 One brother was killed and the other suffered serious injury resulting in long-term complications. The Court addressed Inter-American standards for the use of force, noting that the use of force by state security forces should be defined by exceptionality and be planned and limited proportionally by the authorities. The use of force or use of coercive instruments should be a last resort when all other methods of control have failed. The use of force should respect the principles of legality, legitimate purpose, absolute necessity, and proportionality. The Court held that the state had violated these principles through the disproportionate use of force resulting in the arbitrary loss of life of one brother and the arbitrary violation of the right to physical integrity of the other brother. Moreover, the Court noted Nicaragua’s lack of a specific law on the parameters of the use of force by state agents and stated that this omission was a violation of the duty to guarantee the rights to life and physical integrity by way of legislation. The Court called for training of the police and the army in international standards on the use of force and protection of migrants; the state was ordered to incorporate this training within one year.59 Moreover, the Inter-American Court of Human Rights set forth the obligation of states to guarantee that all persons who have suffered abuse or human rights obligations as a consequence of border control measures are given fair and effective access to justice, effective remedy, and adequate, effective, and speedy reparation:60 Special consideration should be given to the fact that Mr. Patricio Fernando Roche Azaña was a migrant, who, due to the characteristics of this case, was in a clear situation of vulnerability. The Court recalls that due process of law is a right that must be guaranteed to every person, regardless of their immigration status. Likewise, the Court considers that States have the duty to ensure that all persons who have suffered human rights abuses or violations as a result of border governance measures have equitable and effective access to justice, access to an effective remedy, to adequate, effective and prompt reparation for the damage suffered, as well as to relevant information on violations of their rights and the mechanisms of repair. Within the framework of operations carried out in border areas, States have the duty

58 I/A Court H.R., Case of Roche Azaña et al. v. Nicaragua. Preliminary Objection, Merits and Reparations. Judgment of June 3, 2020. Series C No. 403. 59 Ibid at para. 122. 60 Ibid at para. 91.

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to investigate and, where appropriate, prosecute human rights abuses and violations committed, impose penalties commensurate with the seriousness of the crimes, and take measures to ensure that they are not repeated.

Judge Freire issued a separate Opinion in which he identified migration as one of the most significant global challenges of our time, which was impacted by climate change and the economic crisis resulting from the COVID-19 pandemic, resulting in the mischaracterization of migrants as “illegals” and increasing the risk of human rights violations. He underscored that the state obligation to protect migrants emanates from the principle of equality and non-discrimination, a principle that the Court has declared as jus cogens.61 In the Case of Acosta Martinéz and Others v. Argentina (2020), the Inter-American Court of Human Rights identified a general context of racial discrimination, police violence, and use of racial profiling by the police, in violation of Article 1(1) of the ACHR.62 This resulted in the arbitrary detention of José Delfín Acosta Martínez (an Afro-descent Uruguayan migrant) and his ensuing death in state custody in 1996. The Court ordered the state to regularly train the police in Buenos Aires and the federal police on discriminatory stereotypes including race, color, nationality, or other ethnic origin, as well as the use of racial profiling in detention and its negative impact upon people of African descent. The training was to be implemented within two years from the judgment. Furthermore, the Court ordered the state to implement a registry of complaints filed by persons who allege having been arbitrarily detained on the basis of racial profiling as well as a registry and statistics on people of African descent within Argentina. The state was instructed to present a report to the Court on compliance with these measures within three years. Attainment of compliance with structural orders remains a compelling challenge for the Court although they may be considered the key to sustainable peace. The non-repetition guarantees are intended to benefit the whole of society, beyond the victims, and hence require a longer timeline for compliance. The Court has established a Unit on Monitoring Compliance with the Judgment. It has strengthened its capacity to follow up implementation through the issuance of orders for detailed information and reports by the state on compliance. It also holds private and public hearings on compliance in Costa Rica and in the countries in which the case originated, as well as sending delegations of Secretariat lawyers and a judge to conduct on-site meetings to 61 Ibid, Separate Opinion of Judge Freire, para. 13, citing Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03, September 17, 2003. Series A No. 18 para. 101. 62 I/A Court of H.R., Case of Acosta Martínez and Others v. Argentina, Merits, Reparations, and Costs. Judgment of 31 August 2020. Series C No. 410.

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facilitate communication between state officials and victim representatives. Thus, the Court has committed to strengthening its institutional commitment to improving compliance with non-repetition guarantees, thereby supporting peacebuilding initiatives. The next section discusses the analytical framework of Ius Constitutionale Commune en America Latina (ICCAL) and the potential to connect with peace studies theory in order to define a “quality peace.”

6.6

THE ADDED VALUE DEFINING A QUALITY PEACE: BRIDGING IUS CONSTITUTIONALE COMMUNE EN AMERICA LATINA WITH PEACE STUDIES

At the regional level, jus commune refers to harmonization of a common core of legal principles invoking basic values inherent to human dignity shared within a region/community while accepting pluralism and differentiation. Armin von Bogdandy explains the concept of ICCAL: It highlights the capacity of law to transform societies and emphasizes law’s response to problems such as widespread poverty, violence, and social exclusion. ICCAL aims at changing political and social realities in the region in order to create the general framework for the full realization of democracy, the rule of law, and human rights.63

He explains that ICCAL focuses on the use of strategic litigation based on human rights provisions contained within national constitutions and the Inter-American human rights normative instruments (forming a bloque de constitutionalidad) to address the claims of marginalized groups subject to violence, structural inequality, and exclusion complementing or responding to mobilization by civil society. It can be transnational, including a network of normative instruments and case law from the Inter-American Court of Human Rights, national constitutions, and cases from national constitutional or supreme courts.64 Bogdandy advocates the perspective that law can transform society, thus one may suggest that we need to evaluate whether the added value 63 Armin von Bogdandy, “Ius Constitutionale Commune en America Latina: Observations on Tranformative Constitutionalism” AJIL Unbound (2015–2016) p. 109. 64 Paolo Carozza, “Subsidiarity as a Structural Principle of International Human Rights Law” 97(1) American Journal of International Law (2003) p. 40. The principle of subsidiarity implies, in the first place, that the national states are to protect and respect human rights, to the extent they can. In second place, subsidiarity approves the idea of integration of the interpretation and national implementation and supranational implementation of rights in a community of discourse. In the third place, to the

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of peace law is in keeping with this aim. Judge Ferrer Mac-Gregor sets forth the vision for the Inter-American Court of Human Rights as supporting second generation rights in order to protect the rights of marginalized groups: The Inter-American Court has the chance to add substance to the content of rights which for a long time were considered “second generation”. This takes on recognition of the rights of many vulnerable people, children (girls and boys), women, indigenous people, afro-descendent, disabled people, elderly, migrants, detained people, LBGT, and human rights defenders who are impeded from enjoying their rights.65

He also includes the protection of the right to a healthy environment among these protection standards, thereby including a third-generation right, which was formally recognized as justiciable within the Lhaka Honhat v. Argentina case (2020). Rodolfo Cardenal explains the challenge of structural violence within Latin America: Inequality and exclusion are assaults against the lives of the majority of human beings. If they do not snatch the slow death of poverty, hunger, and disease, then they lose the quick death of violence, a product of common delinquency, gangs, organized crime, trafficking of women and children, drugs, weapons, cars, domestic violence, paramilitaries, and other armed groups such as social cleansing. In this way, death is propagated and multiplied until it is unstoppable. The challenge is to fight in the structural, social, and personal spheres. This fight is not reduced to the biological dimension, but still includes liberty, justice, dignity, solidarity. In this history of the fight of life against death, one needs to ponder the problem of different human rights and their hierarchy. The common evil contains characteristics of structural and institutional injustice. The structures are unjust and violence is institutionalized when the right to life, food, health, education, liberty, access to justice, to not be subject to arbitrary arrest, to not be tortured, or to be denied the right to freedom extent that the national state organs cannot achieve these ends, the international organs, created by the decision of the states, can intervene. 65 Eduardo Ferrer Mac-Gregor, La justiciabilidad de los derechos ecnomicos, sociales, culturales y ambientales en el Sistema interamericano de derechos humanos 234 (Universidad Autonoma de Mexico 2017). He describes the regional construction of ius constitionale commune within human rights with special emphasis on the link between effective human rights with democratic development conditions, above all to protect vulnerable sectors, citing Mariela Morales Antoniazzi, Proteccion supranacional de la democracia en Suramerica, en estudio sobre el acervo del ius constitucionale commune (UNAM 2015). See also Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, and Rogelio Flores Pantoja, Inclusion, Jus Commune y Justiciabilidad de los DESCA en la Jurisprudencia Interamericana El Caso Lagos del Campo y Los Nuevos Desafios (Instituto de Etudios Constitucionales del Esado Queretaro 2018). They suggest that there has been a change of paradigm in the Inter-American Court of Human Rights jurisprudence from indirect justiciability of DESCA to direct justiciability, based on the case Lagos del Campo 2017.

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of expression and the right to political organization for a prolonged duration. Unjust institutionalization is expressed in legislation, customs, and ideologies.66

The Inter-American Court of Human Rights may be considered to be an essential actor in supporting the consolidation of peace within the region and explaining the scope of positive peace obligations, thereby participating as a “norm entrepreneur” in the evolution of the customary law of peace. It is suggested that the Inter-American Court of Human Rights can play a role in gap-filling by developing a pluralistic pro homine concept of peace as a value or principle through its jurisprudence to be respected by states and non-state actors, thereby adding a new chapter to its role as a norm entrepreneur by defining the contours of this de lege ferenda normative regime which can support the consolidation of peaceful societies and prevention of violence.67 As peace is a universal, regional, and national principle, its normative value is confirmed in the abstract form, but will vary in interpretation among the different levels, thereby ranging in justiciability. It is recognized that violations of human rights increase the risk of violence on account of fomenting cycles of state repression and societal rebellion.68 Michelle Parlevliet confirms that direct violence, structural violence, and cultural violence (denying human dignity/otherness) involve human rights violations that span civil and political rights to socio-economic rights related to inequality, inequity, injustice, and insecurity. She argues that incorporation of a human rights perspective in conflict transformation aims at the achievement

66 Rodolfo Cardenal, “El bien comun. Principio de la democracia, la ciudadania y los derechos humanos” in Instituto Interamericano de Derechos Humanos, Quien responde por los derechos humanos de las poblaciones mas pobres en America Latina y el Caribe? Democracia v. Desigualdad (2007–2011) (IIDH 2012) p. 305. 67 See UN Secretary General Report on the Responsibility to Protect: Lessons Learned for Prevention, A/73/898–S/2019/463 (10 June 2019), http://​www​.globalr2p​ .org/​media/​files/​n1916893​.pdf (accessed 15 July 2020). 68 Michelle Parlevliet, Rethinking Conflict Transformation from a Human Rights Perspective (Berghof Handbook No. 9 2009) p. 7. See also Michelle Parlevliet, “Bridging the Divide: Exploring the Relationship between Human Rights and Conflict Management” 11(1) Track Two Constructive Approaches to Community and Political Conflict (2002); Michelle Parlevliet, Human Rights and Conflict Transformation: Towards a More Integrated Approach (Berghof Handbook 2011); Michelle Parlevliet, “Embracing concurrent realities: Revisiting the relationship between human rights and conflict resolution” (2015), https://​www​.semanticscholar​.org/​paper/​Embracing​ -concurrent ​ - realities​ % 3A​ - Revisiting​ - the​ - and​ - Parlevliet/​ b 6b40ddc08​ 1 f7c23adb4​ f0d5d177a51cc5b5e415 (accessed 15 July 2020). See also Kjersti Skarstad, “Human Rights Violations and Conflict Risk: A Theoretical and Empirical Assessment” in C. Bailliet (ed.), Research Handbook on International Law and Peace (Edward Elgar Publishing 2019).

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of a peace “of a certain quality,” addressing equality, justice, and democracy demands.69 Hence, one may suggest that the Inter-American Court of Human Rights can be interpreted as indirectly explaining the scope of “quality peace” through its analysis of positive peace-related human rights violations. Thus, the added value of examining peace within the context of a human rights analysis is that it streamlines the aim of the construction of sustainable peace within the region. The liberal model of peace is based on legitimate, accountable institutions, rule of law, and human rights. It is often challenged by illiberal peace pressures on account of superficial reforms which do not dismantle preexisting repressive, exclusionary political, economic, and social structures characterized by corruption, crime, class, religious, ethnic divisions, and clientelism.70 Yet, Oliver Richmond warns about the risk of governments pursuing what he deems to be “negative hybrid peace,” which implements structural violence (discrimination, violence, inequality, and marginalization that maintain elite or group interests, with oppressive social, economic, political, or military structures). This is instead of “positive hybrid peace,” which he states is rooted in accommodation, reconciliation, emancipation, autonomy, social justice, and a sense of liberation.71 He opines that institutions grounded in positive hybrid peace and adapted to the local context would underpin the provision of rights and needs: [T]he peace liberalism creates in the context of a neoliberal state rests less on a social contract but on the amount of security elites can afford in public and private spaces to protect their own status, property and prosperity. Increasingly, elites in such situations have to re-securitise their own property and persons in order to survive in personal and professional capacities (as has long been the case in Guatemala and El Salvador, for example). This lack of contextual grounding for liberalism and neoliberalism, in particular, has also driven the exponential securitisation of the institutions of development, peacebuilding and statebuilding (meaning many international actors’ local offices are behind high walls). It also means that elites may, at a state and market level, seek material support from states, donors and actors beyond the liberal consensus, such as with the role of China in Africa, for example ... Neoliberalism also requires elite rather than local consent. A lack of broad local consent stems partly from cultural and identity insensitivities on the part of external actors and partly from their unwillingness to alleviate pressing needs through redistribution. While they are unwilling to engage with local political and cultural forms of agency, they are also unwilling or unable to materially support the liberal peace architecture fully ... Liberal intervention additionally suffers from a local legitimacy deficit if procedural forms of democracy are established where representation loses Parlevliet, Rethinking Conflict Transformation, supra note 68 at 9. Roberto Belloni, “Hybrid Peace Governance: Its Emergence and Significance” 18 Global Governance (2012) p. 21. 71 On hybrid peace, see Roger MacGinty, “Hybrid Peace: The Interaction Between Top-down and Bottom-up Peace” 41(4) Security Dialogue (2010) pp. 391–412. 69 70

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its substance, if free trade increases the marginalisation of post-conflict actors, and if property rights bias law and the state in ways which may not match contextual social and historical dynamics ... Peace has been narrowed to a focus on security and the state; hence the discourse of statebuilding, which is oriented towards security, rights and markets, but offers little in the way of a peace dividend which might be attractive or necessary at the local level.72

Indeed, the observation that societies often prefer a negative peace implicating order over social justice was noted by Martin Luther King Jr. in his Letter from a Birmingham Jail: First, I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizen’s Council-er or the Ku Klux Klanner, but the white moderate who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice ...73

The Inter-American Court of Human Rights can potentially define the scope of peace in a manner which is emancipatory and non-discriminatory, validating local participation in peace endeavors, examining historical exclusion, and providing input on the need for institutional reform to facilitate the full enjoyment of human rights. In this manner, it may be argued that the incorporation of a peace perspective would fit with the orientation of ICCAL. ICCAL seeks to address structural deficiencies and exclusion, two aims as explained by Bogdandy et al.: The first is to address the profound structural deficiencies in many countries, often due to weak institutions, which lead to insecurity, impunity or corruption. A true constitutional democracy is impossible without overcoming such deficiencies. The second arises out of unacceptable living conditions for broad parts of the population. Indeed, there is a specific concern for so called “vulnerable groups.”74

72 Oliver Richmond, “The Dilemmas of a Hybrid Peace: Negative of Positive?” Cooperation & Conflict (12 June 2014) pp. 6–10. See also Oliver Richmond, “Human Rights and the Development of a Twenty-first Century Peace Architecture: Unintended Consequences?” 73(1) Australian Journal of International Affairs (2019) pp. 45–63. 73 Martin Luther King, “Letter from a Birmingham Jail”, 16 April 1963, http://​www​ .stanford​.edu/​group/​King/​Docs/​birmingham​.html (accessed 15 July 2020). 74 Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flavia Piovesan and Ximena Soley, Ius Constitionale Commune en America Latina: A Regional Approach to Transformative Constitutionalism, Max Planck International Law Research Papers Series No. 2016-21.

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ICCAL seeks to overcome exclusion and explain how law can perpetuate exclusion or overcome it, thereby promoting social inclusion.75 These scholars indicate concern for weak institutions, lack of access to justice, lack of independent judiciaries, poverty, inequality, violence, and corruption. ICCAL analyzes the transnational interaction of domestic public law in various countries both horizontally and with international institutions. ICCAL scholars examine the constant dialogue between domestic legal developments and international human rights governance in light of socio-economic challenges. Peace may be negatively constructed to characterize security actions by the state in counterterrorism or to repress political dissent. An example is the backlash within El Salvador alleging that the Inter-American Court of Human Rights was actually endangering peace by prohibiting its amnesty law.76 Parlevliet explains that it is important to take into account peacebuilding perspectives when designing legal reforms to ameliorate human rights in a context in which violations take place and to prevent potential “negative ramifications of well-intended activities to improve conditions.”77 She characterizes human rights as the pursuit of the aims of ICCAL: “... human rights involve more than law and relate also to challenging the status quo, emancipating the oppressed and promoting social justice and social change towards a more fair, participatory and equal society where people can live in freedom and dignity.”78 The linkage of peace to human rights can be complementary if articulated as common values to buttress political campaigns or legal initiatives seeking social justice, but peace approaches can also result in contradictions in prac-

Ibid. The Court declared the amnesty law to be in violation of the American Convention on Human Rights in I/A Court H.R., Case of the Massacres of El Mozote and surrounding areas v. El Salvador. Merits, Reparations and Costs. Judgment of October 25, 2012. Series C No. 252. The backlash took the form of a 2019 reconciliation law proposal that would promote new amnesties. Sergio Garcia Hernandez, “Porque Victimas de la Guerra Civil de El Salvador Rechazan un Proyecto de Ley de Reconciliacion?” Anadolou Agency (28 May 2019), https://​www​.aa​.com​.tr/​es/​mundo/​ -por​-qu​%C3​%A9​-v​%C3​%ADctimas​-de​-la​-guerra​-civil​-de​-el​-salvador​-rechazan​-un​ -proyecto​-de​-ley​-de​-reconciliaci​%C3​%B3n/​1491611 (accessed 15 July 2020). 77 Michelle Parlevliet, “Human Rights and Peacebuilding: Complementary and Contradictory, Complex and Contingent” 9(3) Journal of Human Rights Practice (2017) pp. 333–357. She states in a footnote: “In Kyrgyzstan, this resulted in the development of a methodology for conflict-sensitive lawmaking to ensure that laws passed do not create or exacerbate underlying social and political tensions.” 78 Ibid. 75 76

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tice, such as peace agreements which absolve or lessen accountability in order to end the conflict, for example in Colombia. Parlevliet warns that [l]iberal peacebuilding has been denounced for its tendency to come in standardized, technocratic formats; for relying on Western values and models of the state; for imposing change from above and outside; for being naïve and culturally insensitive; and for ignoring non-state forms of governance, sub-national conflict dynamics, and issues of sociopolitical cohesion.79

Hence, peace needs to be built from a bottom-up perspective, with local actors and civil society groups having ownership of initiatives.80 In this manner, peace may be articulated to create spaces for society to enjoy human rights and freedoms, such as assembly and expression. One may consider examples such as the Dominican Republic’s Youth Conferences to promote pacific dispute resolution mechanisms to its peaceful protest marches, for instance the 2017 Green March against Impunity.81 Parlevliet remarks on the need to alter the perspective: Existing literature to date has devoted more attention to the topic of how human rights standards, values and principles can or should enhance efforts to build peace, than to ways in which peacebuilding insights and methods can advance human rights promotion and protection ... From a rights perspective, the peacebuilding emphasis on dialogue-based methods and mutually acceptable outcomes and its reluctance to embrace confrontation as a strategy can be problematic in contexts marked by power asymmetry. Meanwhile, the historical focus of human rights on the state does not easily suit the proliferation of non-state armed actors and cross-border conflict dynamics which matter in peacebuilding; invoking rights can also have a securitizing effect, increasing rather than decreasing conflict dynamics.82

Indeed, social scientists underscore the importance of reaching out to business elites and other non-state actors to promote peace and human rights perspec Ibid. See Dahlia Simangan, “When Hybridity Breeds Contempt: Negative Hybrid Peace in Cambodia” 39(8) Third World Quarterly (2018) pp. 1525–1542; Pol Bargués-Pedreny and Elisa Randazzo, “Hybrid Peace Revisited: An Opportunity for Considering Self-Governance?” 39(8) Third World Quarterly (2018) pp. 1543–1560; Syaiful Anam, “Peacebuilding: The Shift towards a Hybrid Peace Approach” 9(1) Global & Strategies (2018) pp. 37–48. 81 “Más de 900 jóvenes de 14 provincias formulan 30 rutas de acción para proyectos en Congreso para una Cultura de Paz”, Cultura de Paz Republica Dominicana, http://​ culturadepazrd​.do/​hola/​(accessed 15 July 2020). Jorge Pineda, “Tens of Thousands March over Corruption in the Dominican Republic”, Reuters (17 July 2017), https://​ www ​ . reuters ​ . com/ ​ a rticle/ ​ u s ​ - dominican ​ - protests/ ​ t ens ​ - of ​ - thousands ​ - march ​ - over​ -corruption​-in​-dominican​-republic​-idUSKBN1A10ZH (accessed 15 July 2020). 82 Parlevliet supra note 77. 79 80

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tives, taking into account human rights initiatives such as the Ruggie Guiding Principles on Business and Human Rights and the current initiative to create a binding treaty.83 The Inter-American Court of Human Rights was given an opportunity to engage in peacebuilding analysis in the case of Lhaka Honhat v. Argentina.84 The Court held that the state was required to guarantee the Lhaka Honhat indigenous community the full exercise of their property rights and hence it was to transfer the Creole population (while respecting the voluntary nature of the transfer) avoiding compulsory evictions through use of mediation, arbitration, and judicial dispute resolution mechanisms. The state was to guarantee the Creoles “resettlement or access to productive land with adequate land infrastructure (including the installation of pastures and access to water for sufficient production and consumption, as well as the installation of necessary fences) and, where appropriate, technical assistance, must be effectively enabled, and training to carry out productive activities.”85 The state was ordered to remove fences and livestock belonging to the Creoles. However, the Court explained that it only had a mandate to address the rights of the indigenous people, not the Creoles, even though two lots were inhabited by Creoles, and that there were also other indigenous people that did not belong to the organization, underscoring the fact that the Court formally focuses on narrow dispute resolution between the formally recognized parties instead of peacebuilding. Nevertheless, the Court describes its efforts to listen to the Creole people’s concerns and permit both oral and written participation in the proceedings:86 It is pertinent to also state that this Court observes that lots 14 and 55 are also inhabited by “creoles”, non-indigenous inhabitants. The Court is prevented from ruling directly on the rights of Creole settlers, as they are not a formal part of the international judicial process. However, it is undeniable that they are part, in a material sense, of the substantive conflict related to the use and ownership of land. 83 Kinda Mohamadieh and Daniel Uribe, “Business and Human Rights: Commencing a Historic Discussion on a Legally Binding Instrument”, The South Bulletin (87–88) (The South Centre 23 November 2015), https://​www​.southcentre​.int/​ question/​business​-and​-human​-rights​-commencing​-historic​-discussions​-on​-a​-legally​ -binding​-instrument/​(accessed 15 July 2020) and UN Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights (2011), https://​ www ​ . ohchr ​ . org/​ D ocuments/​ P ublications/​ G uiding ​ P rinciples ​ B usinessHR ​ _ EN ​ . pdf (accessed 15 July 2020). 84 I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Merits, Reparations and Costs. Judgment of February 6, 2020. Series C No. 400. 85 Ibid. 86 Ibid at para. 36.

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Even though this Court cannot rule on your rights, it understands that taking into account your situation is pertinent in order to adequately analyze the case that has been raised and to ensure the effectiveness of the decision that is adopted in this Judgment. The Court has tried, within the framework of the procedural guidelines that govern its actions, to listen to Creole people. Thus, it has held a meeting with several representatives of families and Creole organizations within the framework of the on-site visit. During the same, they referred to the territorial problem, presenting their points of view regarding the process of agreements for the location of Creole people, the conditions to advance solutions to the territorial conflict and state intervention in this regard. In addition, during the same proceeding, the Court’s delegation received documentation presented by Creole people, and it also did so afterwards. In said documentation there is a “proposal” regarding the distinction of indigenous territory and land corresponding to the Creole population. Likewise, this Court has received written testimonial statements from Creole people, in which they referred to the facts of the case, expressing, among other issues, difficulties and damages in the framework of the territorial relocation process. The Court takes into account the aforementioned manifestations, in particular, in order to evaluate the actions followed in the case related to the presence of the Creole population on land claimed by the indigenous communities and the transfer of said population, and in order to consider the measures of repair that, in this regard, may correspond.

The State of Argentina delineated a participatory work methodology pursuing dialogue between the Creole and indigenous communities:87 Argentina explained that it was developing a participatory working method in agreement with the parties (criollos and indigenous peoples), based on the map presented by the “petitioners.” The “methodology” involved a “dialogue” between the indigenous communities and the criollo families. Argentina asked the Court to “take into account the characteristics of the conflict and the realistic way of resolving it, noting the progress that had been made towards finding a peaceful and participatory solution.” It emphasized that “owing to the agreements reached, it had been possible to delimit the territory” and that “demarcation required the participation of all those concerned.” It explained that, in order to “grant the single title to the indigenous communities in which the criollo families do not appear as co-owners, […] it is essential that all the agreements between the parties have been signed, and this involves the active participation of the communities and the criollos, so that achieving this depends to a great extent on the willingness of the said parties.” It added that “[t]he survey and demarcation were also indispensable, as well as the signature of the deed transferring ownership to the criollo families. Once this formal act has been completed, the criollo families will cease to appear registered as titleholders of Lots [14 and 55].” It also indicated that difficulties had been encountered in the “relocation” process. The State recalled that Article 21 of the Convention indicated the possibility of subordinating the use and enjoyment of property to “the interests of society,” and understood that such interests are “constituted” in this case not only for the indigenous communities affiliated with Lhaka Honhat, but also for other communities

Ibid at paras. 111–112.

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who are not affiliated and for criollo families. It alleged that the criollo families are “vulnerable rural settlers.” It indicated that it was necessary to harmonize the rights of the indigenous communities affiliated with the Lhaka Honhat Association with those of the indigenous communities that were not represented by this Association, as well as the criollo population. Hence, it argued that the State “also has to guarantee the right of the settlers to obtain title to the lands that they have historically inhabited” and that the said right was “guaranteed by responding to the claims of [the indigenous communities] and reaching total agreement with them.”

However, the Court clarifies a narrow scope of analysis: “The question that the Court must determine is whether the state conduct followed in the case has provided adequate legal security to the community property right and whether it has allowed the free exercise and enjoyment of that right by the indigenous communities.”88 Hence, the Court does not seize the opportunity to address peacebuilding interests between the communities in its framing of the legal issues. It is suggested that the Court is more likely to offer reflections on peacebuilding addressing long-term perspectives on reestablishing mutual respect, cooperation, and other aspects that go beyond determination of accountability within its non-repetition orders. Explicit articulation of the normative value of peace as the legitimate aim of the state, principle, and obligation to society may serve to buttress human rights protection within the region. Peace should join human rights, democracy, and rule of law as a foundation of ICCAL, sharing the characteristic of showing how law has transformative potential to change society (for better or worse, emancipatory measures or repressive measures), measuring how peace is supported by national and international articulations. It is important to note that peace can be differentiated in normative articulation at the national level but be considered to be cohesive at the regional level as an overarching value.

6.7

PEACE AND THE CONVENTIONALITY CONTROL DOCTRINE

One important doctrine which may impact recognition of peace as a customary norm within the region it conventionality control. Pablo González-Domínguez explains the background and reasoning for the application of the “conventionality control doctrine” within Latin America: The doctrine of conventionality control is one of the Inter-American Court’s most recent efforts to increase the influence and effectiveness of the different sources of law in the Inter-American System at the domestic level. Although it is still an idea in progress, conventionality control can be defined as an international legal obligation

Ibid at para. 114.

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that requires all the authorities of the States parties to the American Convention to interpret domestic law in accordance with the Inter-American Corpus Juris, which is integrated by the American Convention, treaties of similar nature (i.e. the Inter-American Convention to Prevent and Punish Torture), the interpretations of these treaties made by the Inter-American Court (in the exercise of its contentious or advisory jurisdiction) and other sources of soft law in the Inter-American System (i.e. the Inter-American Democratic Charter). In accordance with this doctrine, State authorities must avoid the enforcement of anti-conventional laws in case that no consistent interpretation is legally possible, although they must always act within their competences and the corresponding procedural regulations as defined by domestic law.89

Pablo González Domínguez supports the judicial dialogue between the regional and national levels, asserting that the “give and take” is the process that constructs human rights law.90 Thus, the likelihood of the eventual emergence of peace in the context of the conventionality control doctrine would be dependent on the extent to which national and regional judges and lawyers are exposed to and recognize the legal dimensions of peace within international and domestic law, ranging from the UN and OAS Charters to regional instruments and national constitutions. Isaac de Paz González characterizes the conventionality control doctrine as being flexible given that it permits states to vary the mode in which they

89 P. González-Domínguez, “General Introduction”, The Doctrine of Conventionality Control: Between Uniformity and Legal Pluralism in the Inter-American Human Rights System (Intersentia 2018) pp. 1–12. 90 See P.G. Carozza and P. González, “The Final Word? Constitutional Dialogue and the Inter-American Court of Human Rights: A Reply to Jorge Contesse” 15(2) International Journal of Constitutional Law (2017) pp. 436–442. The theory behind paragraphs 123–125 of Almonacid Arellano v. Chile, where the doctrine of conventionality control is first articulated as such, is that the obligations to respect and ensure the rights and freedoms recognized the American Convention on Human Rights (in terms of article 1(1) ACHR) have direct effect on the judiciary, and that the Court has the authority to decide the necessary measures (in terms of article 2 ACHR) by which judges should comply with this duty. This position certainly challenges the traditional notion that international obligations do not bind specific authorities unless otherwise established by the treaty or by domestic law, and that states have the absolute freedom to decide the manner by which those obligations are fulfilled at the domestic level. But the line of reasoning followed in Almonacid and subsequent cases shows that the Court interprets articles 1(1) and 2 ACHR as provisions that must guide the conduct of domestic authorities (not the conduct of the state, as an abstraction), in a manner that they are “able to ensure the effet utile of the international instruments so that they are not reduced or annulled by the application of domestic laws and practices contrary to the object and purpose of the [American Convention]” in the event that the legislative power fails to comply with its duties under article 2.

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harmonize their laws with the American Convention and jurisprudence of the Inter-American Court of Human Rights. States need not have identical forms of implementation, thus there remains diversity within the region. Bolivia and Ecuador give supremacy to international human rights law over constitutional law, but other countries have a range of approaches to incorporation or prioritization of international human rights law. Marcelo Torelly stresses the importance of not imposing an international legal hierarchical approach, hence it would be wiser to build recognition of peace from the bottom up:91 Engagement strategies that articulate and harmonize the international and domestic laws as much as possible can recognize international normativity without necessarily accepting an international legal hierarchy. Engagement may introduce human rights norms where they were previously absent, and it may balance domestic and international law provisions to generate mixed normative criteria, adding increased legitimacy to decision making in controversial cases.

De Paz González notes that there is a challenge of non-compliance with the Inter-American Court of Human Rights’ judgments and this may be due to resistance by lower courts, legislators, private actors, politicians, and administrative agencies, thereby requiring a broader dialogue within state and society to advance normative evolution.92 This perspective is buttressed by Benedicte Bull and Mariel Aguilar-Støen, who explain the important role of extending discourses among influential business associations to support the strengthening of transparent, responsive governance institutions and expanding the participatory representation of previously marginalized or excluded groups in order to reach solutions to structural inequalities and systematic discrimination that impede peace.93 Hence, there would be a need to disseminate the added value of peace among influential stakeholders within society as well as state actors in order to improve the standing of peace as a relevant legal norm. Judge Freire provides a framework for applying the conventionality control doctrine that is adapted here to evaluate peace: (1) Identify the constitutionality and conventionality of peace under the national law; (2) Interpret the national version of peace in accordance with the national constitutional and conven-

91 Marcelo Torelly, “From Compliance to Engagement: Assessing the Impact of the Inter American Court of Human Rights on Constitutional Law in Latin America” in Per Engstrom (ed.), The Inter-American Human Rights System: Impact Beyond Compliance (Palgrave 2018) pp. 118, 134. 92 Isaac de Paz González, The Social Rights Jurisprudence in the Inter-American Court of Human Rights (Edward Elgar Publishing 2018) p. 17. 93 Benedicte Bull and Mariel Aguilar-Støen, “Peace-building and Business Elites in Guatemala and El Salvador: Explaining the Discursive institutional Turn” 19(1) Conflict, Security & Development (2019) pp. 121–141.

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tional framework; (3) Choose the most favorable and effective interpretation of the peace law in the protection of rights and freedoms in application of the pro homine or favor libertatis principles provided for in Article 29 of the American Convention on Human Rights; (4) Discard incompatible or less protective interpretations; (5) Only when compliant constitutional and conventional interpretations cannot be achieved should the national provisions be disregarded or declared invalid.94

6.8 CONCLUSION The Inter-American Court of Human Rights has established a solid framework of case law directly related to positive peace. Its jurisprudence calls upon states to dismantle structural violence practices and policies in order to guarantee equality and non-discrimination to all persons, in particular those marginalized due to ethnicity, class, age, disability, migrant status, or other characteristic. Justiciability of peace may take different routes: either by its direct recognition within a national constitution, or by way of linking to a right within the ACHR in particular non-discrimination and equality, or social security, social justice, and education in the OAS Charter and San Salvador Protocol according to Article 26 ACHR, or indirectly by way of Article 29 ACHR. Although state compliance with non-repetition guarantees tends to be delayed in practice, it is suggested that the integral reparative orders values may be characterized as intended to restore peace to polarized societies, thereby offering what Patricia Palacios Zuloaga deems to be “extra-compliance” value in the form of impact: 94 Patricio Pazmiño Freire gave a lecture on “The Interpretation of National Law in Line with International Law: A View from the Regional Perspective” (Faculty of Law Universidad Complutense de Madrid 16 April 2018). He presented a framework to conduct a conventionality control analysis: 1. Start from the principle of the constitutionality and conventionality of national law 2. Undertake the “interpretation” of the national law in accordance with the Constitution and conventional parameters 3. opt for the most favorable and effective interpretation of the legislation in the protection of rights and freedoms in application for the pro homine or favor libertatis principles provided for in Article 29 of the ACHR 4. discard incompatible or less protective interpretations 5. Only in circumstances when compliant constitutional and conventional interpretations cannot be achieved, should the national provision be disregarded or declared invalid, according to the competence assigned by the Constitution and national laws. The jurisprudential dialogue is becoming ever clearer and is enabling the formation of an inter-American legal heritage that has international human rights law as a common language – ius constitutionale commune.

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normative iterations of pro homine quality peace, which may be espoused by civil society advocacy groups.95 Moreover, the Inter-American Court of Human Rights has developed institutional processes to promote continuous pacific dialogue throughout the monitoring of compliance between state representatives, victims, and civil society representatives, thereby contributing to the creation of a culture of peace.96 The next chapter reviews the particular contribution of the Inter-American Court of Human Rights to the construction of a customary law of sustainable gendered peace.

95 See Pablo Saavedra Alessandri, “The Role of the Inter-American Court of Human Rights in Monitoring Compliance with Judgments” 12(1) Journal of Human Rights Practice (2020) pp. 178–184; Patricia Palacios Zuloaga, “Judging Inter-American Human Rights: The Riddle of Compliance with the Inter-American Court of Human Rights” 42(2) Human Rights Quarterly (2020) pp. 392–433. 96 Clara Sandoval, Philip Leach and Rachel Murray, “Monitoring, Cajoling and Promoting Dialogue: What Role for Supranational Human Rights Bodies in the Implementation of Individual Decisions?” 12(1) Journal of Human Rights Practice (2020) pp. 71–100.

7. Towards a sustainable gendered peace: the battle for hearts and minds within the Inter-American Court of Human Rights 7.1 INTRODUCTION According to the current President of the Inter-American Court of Human Rights, Judge Elisabeth Odio Benito, the relationship of the Inter-American Court of Human Rights to Peace is founded on a corollary: “The Woman is the heart of Peace and the Inter-American Court of Human Rights protects women and children, hence the Court protects Peace.”1 The Court’s jurisprudence has been recognized as comprehensively articulating a due diligence obligation of states to pursue structural reforms and education of state actors to guarantee women access to justice and to ensure protection of women against violence within private and public spaces.2 Several cases were decided before Judge Odio Benito was appointed President; however, she is increasing the commitment of the Court to these issues.3 Judge Odio Benito was clear in indicating

Interview February 26, 2019. For example: Azul Rojas Marin et. al. v. Peru (2020) (torture of transgender), Lopez Soto v. Venezuela (2018) (abduction, torture, enslavement, femicide), Women Victims of Sexual Torture in Atenco v. Mexico (2018), Miguel Castro-Castro Prison v. Peru (2006) (rape, sexual violence, custodial violence), V.R.P. and V.P.C. et al. v. Nicaragua (2018) (child rape), Cantu v. Mexico (2010) (rape and torture by military), Gonzalez, Monreal and Monarrez (“Cotton Field”) v. Mexico (2009) (disappearance, torture, mutilation, sexual abuse). See Ciara O’Connell, “Women’s Rights and the Inter-American System” in N. Reilly (ed.), International Human Rights of Women (Springer 2019) pp. 139–153. 3 She is listed as one of the 1,000 women nominated for the Nobel Peace Prize. She is profiled at the website for the 1000 peace women initiative: http://​ www​ .1000peacewomen​.org/​en/​network/​1000​-peacewomen/​search/​elizabeth​-odio​-benito​ -361​-27​.html (accessed 17 July 2020). 1 2

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that her period of leadership of the Court would be marked by the pursuit of peace and women’s rights:4 I assume this challenge with humility and the unwavering commitment that I will seek to contribute criteria that consolidate a new stage of our jurisprudence aimed at strengthening democracy, peace, gender justice and economic, social and environmental rights ... The fight against sexual violence and the recognition of the sexual and reproductive rights of women who occupy a central role in our jurisprudence.

As defined by Brenda Valero Diaz, achievement of gender equality is the root of guaranteeing a gendered peace: Generally, women associate themselves with peace and men with violence, this thinking forms part of the structure which upholds the patriarchy, it supports militarism, war, and violence against women. Articulating this form of patriarchy of power relationships in a violent manner, such that the patriarchal concept of power, is defined as the capacity to obligate and dominate. A feminist peace proposes a logic of power, which is maintained by responsibility of a society that leaves behind gender hierarchies, militarized values, and the patriarchal system. Keeping in mind another vision, it is not about being a woman but rather a feminist, including men and women who have a different perspective about peace. Only the social, economic, and cultural measures that promote equality can definitively eradicate violence against women, it is the inequality of women, that makes a woman vulnerable to violence.5

Valero Diaz explains that the link between women’s equality is itself a peace movement: Feminism has signaled the profound connection between the patriarchal system and militarism, between sexism and other forms of social and cultural discrimination, and finally, between gender-based violence and general violence. In this way, the feminist movement, independently of its adhesion to pacifism, by revindicating equality and liberation of women, is itself a peace movement, because it is contributing actively to the construction of a world more egalitarian and just, and thus more peaceful.6 4 The President of the Court issues statements delineating her vision for the Court and the region: https://​www​.corteidh​.or​.cr/​mensaje​_presidencia​.cfm (accessed 17 July 2020). 5 Brenda Valero Diaz, “Genero y paz: Relatos de mujeres victimas de violencia en Baranquilla, Colombia” in Raimundo Caviedes Hoyos (ed.), Cultura de Paz, Derechos Humanos, Una Mirada Socio-Juridica (Universidad Simon Bolívar 2014) p. 176. She cites Candida Martinez Lopez and Maria Dolores Miron Pérez, La paz desde la perspectiva de los estudios de genero; una aportacion fundamental para construir un mundo mas igualitario, justo, y pacifico (Instituto de Estudios de la Mujer, Universidad de Granada 2000). 6 Ibid.

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Nevertheless, Latin America has the highest rate of sexual violence against women in the world.7 It may be argued that a culture of gendered peace within the region has yet to be forged due to the challenges of impunity, resistance to gender-oriented legislation and regional case law, and lack of political will to devote resources and establish institutional mechanisms and education for protection of women and girls.8 In response, Latin America has experienced a wave of social mobilization addressing reproductive rights, protection from sexual violence/discrimination, and equality in the workplace; as well as a significant counter-mobilization seeking to limit the impact of “gender ideology” on national and regional case law and legislation. The Court is experiencing a battle for hearts and minds through the inputs of opposing liberal and conservative NGOs, thereby reflecting polarization within the region and impacting the prospects for implementation of a sustainable gendered peace. Although the majority of the Court, led by its President Judge Odio Benito, are dedicated to upholding a liberal approach to women’s rights, Judge Vio Grossi issued dissents which followed the legal arguments of the conservative NGOs, thereby providing space for pluralistic positions. Furthermore, there is concern about lack of compliance with the Court’s reparations orders, which address non-repetition guarantees relating to gendered peace.

7 Sebastian Essayag, From Commitment to Action: Policies to End Violence Against Women in Latin America and the Caribbean (UNDP/UN Women 2016), https://​www​.undp​.org/​content/​dam/​rblac/​docs/​Research​%20and​%20Publications/​ Empoderamiento ​ % 20de ​ % 20la ​ % 20Mujer/ ​ U NDP ​ - RBLAC​ - ReportVCMEnglish​ .pdf (accessed 15 July 2020). Sara Bott, Alessandra Guedes, Mary Goodwin and Jennifer Adams Mendoza, Violence Against Women in Latin America and the Caribbean: A Comparative Analysis of Population-Based Data from 12 Countries (Pan American Health Organization 2014), https://​www​.paho​.org/​hq/​index​.php​?option​ =​com​_content​&​view​=​article​&​id​=​8175:​2013​-violence​-against​-women​-latin​-america​ -caribbean​-comparative​-analysis​&​Itemid​=​41342​&​lang​=​en (accessed 15 July 2020). Inter-American Commission on Human Rights, Violencia, Discriminacion contra mujeres, niñas y adolescents, OEA/Ser.L/V/II. (14 November 2019), http://​www​.oas​ .org/​es/​cidh/​informes/​pdfs/​ViolenciaMujeresNNA​.pdf (accessed 28 July 2020). 8 As noted in The Dialogue: “Impunity is rooted in a lack of political will – to adequately organize resources and initiatives and mechanisms for the protection of women and their access to justice.” “High Rates of Violence Against Women in Latin America despite Femicide Legislation: Possible Steps Forward”, The Dialogue (15 October 2018), https://​www​.thedialogue​.org/​blogs/​2018/​10/​high​-rates​-of​-violence​ -against​-women​-in​-latin​-america​-despite​-femicide​-legislation​-possible​-steps​-forward/​ (accessed 15 July 2020).

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7.2

THE NORMATIVE AND INSTITUTIONAL LINK BETWEEN PEACE AND GENDER IN LATIN AMERICA

The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belém do Pará) was adopted in 1994 and ratified by 32 Latin American countries.9 It sets forth in the preamble that violence against women is a violation of human rights. Similarly, all the Latin American states voted in favor of the Declaration on the Right to Peace, which explicitly links enjoyment of peace to human rights and calls upon states to uphold equality and non-discrimination guarantees in Article 2: Article 1 Everyone has the right to enjoy peace such that all human rights are promoted and protected and development is fully realized. Article 2 States should respect, implement and promote equality and non-discrimination, justice and the rule of law, and guarantee freedom from fear and want as a means to build peace within and between societies.

Nevertheless, women are only specifically mentioned in the preamble in relation to participation: “Recalling also that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women, on equal terms with men in all fields.” In terms of linking peace to gender at the constitutional level, all general non-discrimination guarantees that include gender are relevant. However it appears that some constitutions refer to the equal right of political participation, for example the 1853 Constitution of Argentina, Article 37: “Actual equality of opportunities for men and women to elective and political party positions shall be guaranteed by means of positive actions in the regulation of political parties and in the electoral system” or the 1991 Constitution of Colombia, Article 40: “The authorities will guarantee the adequate and effective participation of women in the decision levels of the Public Administration.” Other constitutions include indirect provisions, for example articles which identify the aim of preventing domestic abuse in the home. For instance, Paraguay’s 1992 Constitution, Article 60, ensures that the state will promote policies having the purpose of avoiding violence in the family.10 Nevertheless, there is no explicit prohibition of gender violence within Latin American constitutions; this is 9 It is notable that all Latin American countries have ratified the UN Convention on the Elimination of Discrimination Against Women. 10 Rodrigo Uprimny describes the gap between constitutional reform and implementation of transformational change in practice. Rodrigo Uprimny, “The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges”

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a subject of separate specific national legislation. National legislation within the region ranges from addressing domestic violence11 to second-generation forms of abuse:12 economic violence, armed conflict related sexual violence, femicide,13 trafficking, and inter-sectoral discrimination increasing the risk of violence/harassment, such as ethnicity, political opinion, migrant status, age, socio-economic background, etc. Regarding institutional implementation, there is variability as to the extent to which national governments assign ministries to implement National Action Plans on gender, whether police create special units to address gender-related violence and undergo special gender training, whether legislation will be implemented, and whether prosecutors will charge abusers.14 UN Women calls for structural approaches to reducing gender violence within the region, including legislative harmonization, educational policies, specific educational strategies, protective and punishment measures, research, statistics and evaluation, and strengthening inter-institutional and inter-sector coordination.15 89 Texas Law Review (2011) p.  1587, http://​www​.corteidh​.or​.cr/​tablas/​r27168​.pdf (accessed 15 July 2020). 11 Antigua and Barbuda, Bahamas, Barbados, Belize, Brazil, Costa Rica, Chile, Cuba, Dominica, Dominican Republic, Ecuador, Grenada, Guyana, Haiti, Honduras, Jamaica, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and Grenadines, Suriname, Trinidad and Tobago, and Uruguay. 12 Mexico, Argentina, Colombia, El Salvador, Guatemala, Nicaragua, Venezuela, Bolivia, and Panama. 13 Mexico, Argentina, Colombia, El Salvador, Guatemala, Nicaragua, Venezuela, Bolivia, and Panama. 14 P. Neumann, “Transnational Governance, Local Politics, and Gender Violence Law in Nicaragua” 60(2) Latin American Politics and Society (2018) pp. 61–82. Cecilia Menjívar and Shannon Drysdal Walsh, “The Architecture of Feminicide: The State, Inequalities, and Everyday Gender Violence in Honduras” 52(2) Latin American Research Review (2017) pp. 221–240. Mona Lena Krook and Juliana Restrepo Sanín, “Gender and Political Violence in Latin America” 23(1) Política y gobierno (2016) pp. 125–157. Shannon Drysdale Walsh and Cecilia Menjívar, “Impunity and Multisided Violence in the Lives of Latin American Women: El Salvador in Comparative Perspective” 64(4) Current Sociology (2016) pp. 586–602. Stéphane Guimont Marceau, Dolores Figueroa Romero, Vivian Jiménez Estrada and Roberta Rice, “Approaching Violence Against Indigenous Women in the Americas from Relational, Intersectional and Multiscalar Perspectives” 45(1) Canadian Journal of Latin American and Caribbean Studies/Revue canadienne des études latino-américaines et caraïbes (2020) pp. 5–25. Noelle Jolin, “Gender-based violence in Colombia: New Legislation Targets Femicides and Acid Attacks” 91 Tulane Law Review (2016) p. 371. 15 Prevention of violence against women and girls in the educational context. Promissory practices in 14 countries of Latin America and the Caribbean. Working document. United Nations Secretary General’s Campaign to End Violence against Women (UN Women, UNICEF 2015). See also Alicia Deus and Diana Gonzalez, Analysis of Femicide/Feminicide Legislation in Latin America and the Caribbean

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UN Women’s Latin America Office identified the following strategy for 2019–2020: “Expand the implementation of the sustaining peace agenda in the region, fostering women’s inclusion in peacebuilding and decision-making to address increasing security challenges and new forms of criminality; and to contribute to the implementation of the peace agenda and transitional justice processes.”16 This language links peace participation to engagement in security, which Gina Heathcote warns is an illegitimate form of coopting women’s rights to support state security agendas that may be oppressive of civil society.17 One may consider a definition of “sustainable gendered peace” that would include protective, participatory, and autonomy elements that could be referred to by the Court:18 • equality, non-discrimination, and dignity; • reduction of poverty and political and economic exclusion, as well as guarantee of social justice and adequate standard of living (including health care, sexual and reproductive health care); • non-violent dispute resolution/access to justice; and A Proposal for a Model Law (UN Women 2019), https://​ www2​ .unwomen​ .org/​-/​media/​field​%20office​%20americas/​documentos/​publicaciones/​2019/​05/​1final​ %20analysis​%20of​%20femicide​%20legislation​%20in​%20latin​%20amercia​%20and​ %20the​%20caribbean​-compressed​.pdf​?la​=​en​&​vs​=​409 (accessed 15 July 2020). 16 UN Women, Strategic Note of the Regional Office for the Americas and the Caribbean 2019–2021 (UN Women 2019), https://​lac​.unwomen​.org/​en/​digiteca/​ publicaciones/​2019/​09/​nota​-estrategia​-oficina​-regional​-onu​-mujeres​-america​-latina​-y​ -el​-caribe (accessed 15 July 2020). UN Women also embarked upon a campaign to end impunity in cases of sexual violence: https://​lac​.unwomen​.org/​en/​noticias​-y​-eventos/​ articulos/​2019/​11/​no​-mas​-violencia​-sexual​-onu​-mujeres (accessed 15 July 2020). 17 Gina Heathcote, “Security Council Resolution 2242 on Women, Peace and Security: Progressive Gains or Dangerous Development?” 32(4) Global Society (2018) pp. 374–394. 18 Peace is understood as having negative and positive variants, negative peace is the absence of violence or war (this includes domestic violence) and positive peace calls for cooperation between people and states as well as the integration of human society via social justice, equality, non-discrimination, respect for human dignity, and elimination of structural violence which causes poverty and exclusion. A culture of peace is composed of different criteria centered upon the promotion of inclusive values: • tolerance of differences, equality, and acceptance of multiculturalism – including interreligious and intercultural dialogue and cooperation to achieve peaceful coexistence; • peace education, sustainable development, human rights, gender equality, democratic participation, tolerance, the free flow of information, and disarmament; • set of values, attitudes, modes of behavior and ways of life that reject violence and prevent conflicts by tackling their root causes to solve problems through dialogue and negotiation among individuals groups and nations.

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• non-state actors/civil society share responsibility for creating and maintaining peace in addition to states; • pursuit of culture of peace through education and community events/social media campaigns. The Court’s jurisprudence has upheld due diligence obligations of states regarding the protection of women from violence.19 However, it is suggested that a sustainable gendered peace would require full respect for equality and non-discrimination guarantees related to autonomy interests, moving beyond sexual violence. The next section will discuss the impact of societal polarization on issues relating to women’s rights (that consequently impact gendered peace) and how it plays out within the amicus briefs to the Inter-American Court of Human Rights in relevant cases.

7.3

FEMINIST SOCIAL MOBILIZATION AND COUNTER-MOBILIZATION

The feminist social mobilization within Latin America entered into its fourth wave and received international attention with the Ni Una Menos march in 2015 in Argentina, which exploded throughout the region via social media. It called for an end to gender-based violence and sexual harassment, opportunities for job promotions, equal pay with men, longer maternity leave, childcare for working mothers, and free access to lawyers for victims of domestic violence. This movement was followed by the International Women’s Strike on Women’s Day, which included articulation of resistance to “systemic violence of an economic system that is rapidly leaving women behind.” The goal of the strike is to build a movement of women who agree that the wellbeing of a society stems from affordable childcare and healthcare and an equal living wage. The march takes place on March 8 every year and addresses ending gender-based and domestic violence, legalized abortion, pay equality, labor reform, and pro-democracy measures. There are expectations of more women candidates running for office within the region.20

19 See Leyla-Denisa Obreja, “Expanding Due Diligence: Human Rights Risk Assessments and Limits to State Interventions Aimed at Preventing Domestic Violence” 7(2) Groningen Journal of International Law (2020) pp. 182–194. 20 Kendall D. Funk, Magda Hinojosa and Jennifer M. Piscopo, “After Weeks of Seeing Latin American Protests Expect to See More Women Elected to Office”, The Washington Post (6 November 2019), https://​www​.washingtonpost​.com/​politics/​2019/​ 11/​06/​after​-weeks​-latin​-american​-protests​-expect​-see​-more​-women​-elected​-office/​ (accessed 15 July 2020).

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However, the wave of feminist social mobilization was countered by a very strong conservative “family values/protection of children” movement uniting Evangelicals, Catholics, and right-wing political parties, some with transnational links to faith-based legal advocacy groups within the United States, such as the Alliance Defense Fund (ADF) and the Center for Family Human Rights. These groups successfully articulated a threat of “an ideology of gender” and lobbied legislative bodies to prevent the adoption of abortion law and same-sex marriage legislation, as well as electing homophobic candidates to office, e.g. Bolsonaro in Brazil and Giammattei in Guatemala.21 As an example of how powerful this movement is in relation to peace, one may consider Nobel Peace Laureate President Juan Manuel Santos’ observation that a “fake news” campaign suggesting that the Colombian Peace Agreement’s provisions on women would negatively impact Colombian families was one of the factors in the society’s initial rejection by referendum of the first Peace Agreement in 2016, with 50.2 percent voting against it.22 In 2019, US Secretary of State Mike Pompeo announced that the United States would cut funding to the Inter-American Commission on Human Rights on account of its pro-reproductive health policy (which includes the choice of abortion).23 In 2020, President Trump partic-

21 Daniel Politi and Ernesto Londoño, “Argentine Senate Narrowly Rejects Legalizing Abortion”, The New York Times (9 August 2018), https://​www​.nytimes​ .com/​2018/​08/​09/​world/​americas/​argentina​-abortion​-vote​.html (accessed 15 July 2020). Devin Watkins, “Argentine Senate Rejects Voluntary Abortion Law”, Vatican News (8 August 2020), https://​www​.vaticannews​.va/​en/​church/​news/​2018​-08/​ argentina​ -senate​ -rejects​ -abortion​ -law​ .html (accessed 15 July 2020). Monica Malta et al., “Sexual and Gender Minorities Rights in Latin America and the Caribbean: a Multi-Country Evaluation” 18(1) BMC International Health and Human Rights (6 November 2019) p.  31, https://​www​.ncbi​.nlm​.nih​.gov/​pmc/​articles/​PMC6836409/​ (accessed 15 July 2020). Javier Corrales, “The Expansion of LGBT Rights in Latin America and the Backlash” in Michael J. Bosia, Sandra M. McEvoy and Momin Rahman (eds), The Oxford Handbook of Global LGBT and Sexual Diversity Politics (Oxford Handbooks Online June 2019), https://​www​.oxfordhandbooks​.com/​view/​10​ .1093/​oxfordhb/​9780190673741​.001​.0001/​oxfordhb​-9780190673741​-e​-14 (accessed 15 July 2020). Nevertheless, in 2020, the Argentine Congress approved legislation legalizing abortion. BBC News, “Argentina Abortion: Senate Approves Legislation in Historic Decision (30 December 2020), https://​www​.bbc​.com/​news/​world​-latin​ -america​-55475036 (accessed 29 January 2021). 22 International Crisis Group, “What Makes Peace: Colombia’s Ex-President Says its Harder than War” Podcast Hold Your Fire (22 October 2020), https://​ www​.crisisgroup​.org/​latin​-america​-caribbean/​andes/​colombia/​what​-makes​-peace​ -colombias​-ex​-president​-santos​-says​-its​-harder​-war (accessed 31 January 2021). Additional factors included different expectations regarding accountability and enjoyment of rights of political participation by ex-FARC members. 23 Makini Rice and Lesley Wroughton, “US expands abortion ‘gag rule’, cuts funding to regional bloc: Pompeo”, Reuters (26 March 2019), https://​www​.reuters​.com/​article/​

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ipated in a March for Life rally, confirming the government’s commitment to this movement and leaving the OAS concerned about future challenges to its institutions that are committed to pursuing women’s rights.24 Rather than strengthen a culture of sustainable gendered peace, the region experienced deepened societal polarization. In response, Judge Elisabeth Odio Benito announced her dedication to women’s rights and peaceful dialogue, noting that she would seek to counter the divisive trends within the region,25 ... seek to contribute criteria that consolidate a new stage of our jurisprudence aimed at strengthening democracy, peace, gender justice and economic, social and environmental rights ... The fight against sexual violence and the recognition of the sexual and reproductive rights of women who occupy a central role in our jurisprudence ... Violence should never be the answer to social protests. The hate speech that nourishes an alarming and growing misogyny, xenophobia, racism, anti-Semitism, homophobia, transphobia and Islamophobia, is a very worrying everyday reality.

It may be argued that Judge Odio Benito appears to mainstream the components of what may be considered a gendered peace within the majority decisions; she does not often write separate Opinions.26 This strategy may be viewed as a tactic to ensure that the gender perspective is not marginalized or regarded as peripheral to the Court’s jurisprudence or it may reflect an allegiance to pursuing unity within the Court as President. In addition, she ensured that the Court issued a declaration emphasizing the obligation of states to protect women against an increased risk of domestic violence during the COVID pandemic.27 Her attentiveness to women’s rights indicates a leadership

us​-usa​-abortion​-pompeo/​us​-expands​-abortion​-gag​-rule​-cuts​-funding​-to​-regional​-bloc​ -pompeo​-idUSKCN1R71LZ (accessed 15 July 2020). See Inter-American Commission on Human Rights, Press Release: “IACHR Urges All States to Adopt Comprehensive, Immediate Measures to Respect and Protect Women’s Sexual and Reproductive Rights” (23 October 2107), http://​www​.oas​.org/​en/​iachr/​media​_center/​PReleases/​2017/​165​.asp (accessed 15 July 2020). See also Nienke Grossman, “Populism, International Courts, and Women’s Human Rights” 35 Maryland Journal of International Law (2020), https://​ssrn​.com/​abstract​=​ (accessed 10 October 2020). 24 Ritu Prasad, “Trump First President to Attend Anti-Abortion Rally”, BBC News (24 January 2020), https://​www​.bbc​.com/​news/​world​-us​-canada​-51239795 (accessed 15 July 2020). 25 Speech, February 3, 2020, https://​www​.corteidh​.or​.cr/​sitios/​libros/​todos/​docs/​ apertura/​aj​_2020​.pdf (accessed 11 October 2020). 26 She joined Judge Eduardo Ferrer Mac-Gregor in a separate opinion addressing state responsibility for an extrajudicial execution, Case of Díaz Loreto et al. v. Venezuela, Judgment of November 19, 2019. Series C No. 392. 27 Inter-American Court of Human Rights, “Declaration: COVID-19 y derechos humanos: Los problemas y desafios deben ser abordados con perspectiva de derechos

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orientation towards continued mainstreaming approaches which may result in a backlash, and persevering in pursuing sustainable gendered peace.

7.4

THE POLARIZATION OF GENDER WITHIN SOCIETY AND THE INTER-AMERICAN COURT OF HUMAN RIGHTS: COMPETITIVE FRAMING – AUTONOMY V. PROTECTION

Marta Rodriguez de Assis Machado, Ana Luiza Villela de Viana Bandeira, and Fernanda Emy Matsuda analyze the strategic mobilization around domestic violence and abortion within Latin America – demonstrating the complexity of acceptance of discourses, responses by institutions/officials, and the role of allies and opponents who form “family rights” counter-movements.28 They review the adoption of the Maria da Penha Law on domestic violence and the Femicide Act and call for implementation by courts and pursuit of executive policy. This is in contrast to the right to abortion, which was subject to strong counter-movements and failure to gain institutional support, in part because the “autonomy” framing was polarizing. They state that women’s demands to combat domestic violence, guarantee maternity leave, and grant women better access to the labor market received more support than abortion, which was opposed by the Catholic Church and “traditional pro-life and pro-family groups.” They describe an alternative framing process of “protecting the woman.” They note that conservatives are interested in protecting women (in particular dependent housewives subject to domestic abuse) as “legitimate victims” and want to strengthen the law and institutions, but not to protect homosexuals, transgender people, prostitutes, transvestites, or racial minorities. Abortion activists then strategically adopted a protection frame to present women as victims of sexual violence, women carrying an anencephalic fetus, or victims of unsafe abortion. Rene Urueña suggests that the Inter-American Court faces a challenge to be inclusive of conservative perspectives within its jurisprudence: Politically costly as it might be, the Court needs to be bold in creating argumentative spaces that allow for the Evangelical experience to exist in the public sphere in Latin America, in the context of respect for human rights in general and LGBTI rights in

humanos y respetando las obligaciones internacionales” (9 April 2020), https://​www​ .corteidh​.or​.cr/​tablas/​alerta/​comunicado/​cp​-27​-2020​.html (accessed 27 July 2020). 28 Marta Rodriguez de Assis Machado, Ana Luiza Villela de Viana Bandeira and Fernanda Emy Matsuda, “Moral Negotiations and Uneven Victories in Feminist Legal Mobilization” in Rachel Sieder, Karina Ansolabehere and Tatiana Alfonso (eds), Routledge Handbook of Law and Society in Latin America (Routledge 2019).

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particular. Evangelical institutions provide believers with a community – a space for like-minded individuals to share the implications of their faith, socialize, and strategize. These communities also created spaces for small-scale leadership of some traditionally disadvantaged segments of the population. For example, ethnographic work in southern Mexico has shown that Evangélicos opened spaces for indigenous women to gain a new level of independence, proselytize outside the home, and develop a “sisterhood” that provides shelter against domestic violence. They frame opposition to LGBT rights as an issue affecting freedom of religion.29

Hence, the Inter-American Court of Human Rights has experienced a type of mirroring of the polarization in the split between the majority Court which upheld liberal orientation to equality and non-discrimination issues related to gender and sexual reproductive rights, while Judge Vio Grossi provided voice and Urueña’s “argumentative space” for conservative thinking via his dissenting opinions. 7.4.1

Artavia Murillo v. Costa Rica

In Artavia Murillo v. Costa Rica, the Inter-American Court of Human Rights examined whether couples experiencing fertility problems but prohibited by the state from using In Vitro Fertilization (IVF) treatment could claim human rights violations, including privacy, family, and equality.30 The Court held that the embryo was not a human person entitled to protection and that the decision to pursue IVF was a personal decision meriting protection in accordance with enjoyment of the rights to privacy, family life, family, dignity, and non-discrimination of the American Convention on Human Rights:31 A weighing up of the severity of the limitation of the rights involved in this case as compared to the importance of the protection of the embryo allows it to be affirmed that the effects on the rights to personal integrity, personal liberty, private life, intimacy, reproductive autonomy, access to reproductive health services, and to found a family is severe and entails a violation of these rights because, in practice, they are annulled for those persons whose only possible treatment for infertility is IVF. In addition, the interference had a differentiated impact on the victims owing

29 Rene Urueña, “Evangelicals at the Inter American Court of Human Rights”, Symposium on the American Convention on Human Rights and Its New Interlocutors, AJIL Unbound (2019) p. 360. 30 I/A Court H.R., Case of Artavia Murillo et al. (In Vitro Fertilization) v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2012. Series C No. 257. 31 Ibid at paras. 314–316.

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to their situation of disability, gender stereotypes and, for some of the victims, to their financial situation. In contrast, the impact on the protection of prenatal life is very slight, because the risk of embryonic loss is present both in IVF and in natural pregnancy. The Court underlines that the embryo, prior to implantation, is not covered by the terms of Article 4 of the Convention, and recalls the principle of the gradual and incremental protection of prenatal life. Therefore, the Court concludes that the Constitutional Chamber based itself on an absolute protection of the embryo that, by failing to weigh up or take into account the other competing rights, involved an arbitrary and excessive interference in private and family life that makes this interference disproportionate. Moreover, the interference had discriminatory effects.

However, Judge Grossi issued a dissent, upholding the ADF amicus brief calling upon the Court to pursue a pro homine interpretation to uphold the right to life of unborn children:32 In this regard, it must be noted that three countries proposed at the Specialized Inter-American Conference on Human Rights – where the Convention was approved – the elimination of the sentence “and, in general, from the moment of conception,” so that abortion would not be forbidden. However, the majority of States participating in said Conference rejected this proposal, incorporating the aforementioned sentence in the Convention. In other words, there was an evident intention of leaving no doubt as to the broad protection that the law must give to the right of every person to have his or her life respected, a protection that must be provided even when the person has been conceived or has not yet been born. Consequently, the aforementioned sentence was established in order to allow States to grant the unborn the legal protection that must be given to the right of “every person [...] to have his life respected” “from the moment of conception.” In other words, such protection must be “common” to those who are born and to the unborn. Consequently, no distinction can be made in this respect among them, “even if they are of a different nature,” because they “constitute a whole.” There is human life in both the born and the unborn. Both are a human being, a person. The legally protected good in Article 4(1) is, then and ultimately, the right to life of “every person.” This is why the Convention decided to leave no doubt as to the fact that Article 4(1) protects life, irrespective of its stage of development. In this regard, the expression “in general” constitutes a reference to the way the law may protect the unborn. Needless to say, this protection could be different to that which is granted to the person who is already born. Consequently, the expression “and, in general” makes no reference to an exception, to an exclusion. Quite the opposite, this expression is inclusive. It makes applicable the obligation, to protect the right to life of every person by law, from the moment of conception ... Finally, the author of this dissenting opinion disagrees with the findings of the cited paragraph because 32 Joint Amicus Curiae by Alliance Defense Fund, C-Fam, Alliance for Life to the Inter-American Court of Human Rights on the Artavia Murillo Case, http://​ www​.adfmedia​.org/​files/​IVF​-CostaRicaAmicus​-English​.pdf (accessed 15 July 2020). Dissenting Opinion of Judge Eduardo Vio Grossi, section 1 (B).

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it leads to the conclusion that not only the embryos before implantation, but also unborn or conceived children, have no inherent “right to have [their] life respected.” Their right would be dependent, not only on the respect for the pregnant woman’s life, but also on her will to respect the rights of her child. Such an approach is contradictory to the letter and spirit of Article 4(1) of the Convention, which evidently relate to matters such as the juridical regime of abortion.

The Court ordered the state to legalize IVF and train state officials in reproductive rights. Nevertheless, there was significant domestic resistance to implementing the orders. The Costa Rican legislature (whose members had received letters from the ADF underscoring the sovereign power to decline to implement the order33) failed to produce legislation authorizing IVF, leading the President to issue an Executive Decree in 2015 calling for implementation, which was, in turn, declared invalid by the Costa Rican Supreme Court. The Inter-American Court sent a delegation composed of Judge Freire and lawyers from the Unit on Monitoring Compliance with Judgments. The Supreme Court reversed itself, recognizing the validity of the Executive Decree.34 This marked the Inter-American Court of Human Rights as conflicting with the conservative will of society and resulting in a polarizing presidential election battle in which candidates debated whether or not to implement the Court’s “LGBTQ” order.35 Notably, Judge Vio Grossi issued a dissent to the resolution

33 Letter by ADF to members of the Costa Rican Legislature 1 July 2011, http://​ www​.adfmedia​.org/​files/​CostaRicaLetter​.pdf (accessed 14 July 2020). 34 See order of compliance by the Inter-American Court of Human Rights issued to Costa Rica on 26 November 2016, http://​www​.corteidh​.or​.cr/​docs/​supervisiones/​ artavia​_26​_02​_16​.pdf (accessed 14 July 2020). See also I/A Court H.R., Case of Artavia Murillo et al. (In Vitro Fertilization) and Case of Gómez Murillo et al. v. Costa Rica. Monitoring Compliance with Judgments. Order of the Inter-American Court of Human Rights of November 22, 2019. 35 Ligia De Jesus Castaldi and Maria Ines Franck, “Inter-American Court Judgment Against Costa Rica on In Vitro Fertilisation (IVF): A Challenge to the Court’s Enforcement Authority” Oxford Human Rights Hub (28 April 2016), http://​ohrh​.law​ .ox​.ac​.uk/​inter​-american​-court​-judgment​-against​-costa​-rica​-on​-in​-vitro​-fertilisation​ -ivf​-a​-challenge​-to​-the​-courts​-enforcement​-authority/​ (accessed 14 July 2020). See also Rene Urueña, “Reclaiming the Keys to the Kingdom (of the World): Evangelicals and Human Rights in Latin America” Netherlands Yearbook of International Law (2018) pp. 175–203. The Evangelical pressure led to the resignation of the Minister of Education in 2019, due in part to his support for transgender bathrooms in schools. Alvaro Murillo, “Costa Rica Education Minister resigns Under Evangelical Fire due to LGBTQ policy”, Reuters (2 July 2020) https://​www​.reuters​.com/​article/​us​-costa​-rica​ -protests/​costa​-rica​-education​-minister​-resigns​-under​-evangelical​-fire​-for​-lgbtq​-policy​ -idUSKCN1TX00V (accessed 30 July 2020).

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on compliance in 2016 warning the Court about going beyond its mandate and interfering with the internal matters of the state:36 In this regard, it must be remembered that the Convention establishes, in its article 68.1, that: “[t] he States Parties to the Convention undertake to comply with the Court’s decision in any case in which they are parties.” Who is responsible, therefore, for the execution of a sentence is the State Party in the corresponding case. Thus, the Court’s judgments do not apply directly to the inhabitants and in the territory of the corresponding State Party, since, for this to happen, an act of the State is necessary. ... Based on the foregoing, it can be affirmed that the Court lacks supranational powers regarding the supervision of compliance with its judgments. These powers, not having been contemplated in the Convention, cannot be established by a judgment or resolution of the Court. ... The Judgment does not rule on the way in which the Judgment is carried out and which state body corresponds to it. In this way, it leaves all these matters in the area called in International Law as the internal, domestic or exclusive jurisdiction of the State; in which the State is sovereignly responsible and which, therefore, is not regulated by International Law. This is equivalent or similar to what is known as the margin of appreciation of the State that international law recognizes. ... Such proceeding unfortunately leads the Court to interfere in the internal or national controversy regarding a matter, that is, the way in which the Judgment is carried out; power that the Court itself left, is repeated, within the scope of the internal, domestic or exclusive jurisdiction of the State. ... In merit of all the above, it is concluded that the Resolution: a) by establishing two new result obligations, not contemplated in the Judgment, violates articles 67 and 68.1 of the Convention; b) by altering the object of monitoring compliance with the Judgment and interpreting it ex officio, it violates the provisions that regulate that procedure and said remedy, and c) by intervening in the internal controversy of the State regarding the way to comply with the Judgment, contravenes norms of International Customary Law relative to the international responsibility of the State. In summary, by altering what is ordered by the Judgment, the Resolution exceeds the exercise of the powers that have been conferred on the Court in the matter and violates the principle of International Law of non-interference in the internal affairs of the State.

The reasoning in this dissent correlates with the position of the conservative NGOs and hence serves to provide a platform for recognition of their legal arguments.

36 Dissent by Judge Eduardo Vio Grossi to the Resolution on Monitoring Compliance with the Judgment (26 February 2016) paras. 8, 9, 25 and 52–54.

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Duque v. Colombia

Judge Vio Grossi also issued a dissent in Duque v. Colombia, which addressed the pension rights of same-sex couples, in which Mr. Duque was denied equal access to his partner’s pension following the death of his partner because the law required the spouse to be of the opposite sex.37 The Court held the state responsible for violating the right to non-discrimination and equality as the state failed to provide an objective and reasonable justification for the discrimination:38 Regarding the principle of equality and non-discrimination before the law, the Court has indicated that the notion of equality stems directly from the oneness of mankind and is inseparable from the essential dignity of the person. On this basis any situation is unacceptable which, considering a certain group superior, accords it privileges; or, conversely, considering it inferior, treats it with hostility or in any way discriminates against it in the enjoyment of rights that are recognized to those who do not form part of that group. The Court has also indicated that at the current stage of evolution of international law, the fundamental principle of equality and non-discrimination has entered the realm of jus cogens. The juridical structure of national and international public order rests upon it and it permeates the entire legal system. Furthermore, the Court has established that States must refrain from taking steps that are aimed, in any way, at directly or indirectly creating situations of discrimination de jure or de facto. States are obliged to adopt positive measures to reverse or change any discriminatory situations that exist in their societies against any specific group of persons. This entails a special obligation of protection that the State must exercise with regard to the acts and practices of third parties that, with its tolerance or acquiescence, create, maintain or encourage discriminatory situations. The Court has established that Article 1(1) of the Convention is a general norm whose content extends to all the provisions of the treaty and establishes the obligation of States Parties to respect and ensure the full and free exercise of the rights and freedoms recognized therein “without any discrimination.” In other words, whatever its origin or form, any treatment that could be considered discriminatory in relation to the exercise of any of the rights recognized in the Convention is per se incompatible with this instrument. A State’s failure to comply with the general obligation to respect and ensure human rights, through any discriminatory treatment, gives rise to its international responsibility. Thus, there is an inseparable link between the obligation to respect and ensure human rights and the principle of equality and non-discrimination. While the general obligation under Article 1(1) refers to the State’s obligation to respect and guarantee “without discrimination” the rights enshrined in the American Convention, Article 24 protects the right to “equal protection of the law.” That is to say, Article 24 of the American Convention prohibits discrimination by the law, not 37 I/A Court H.R., Duque v. Colombia Preliminary Objections, Merits, Reparations and Costs. Judgment of February 26, 2016. Series C No. 31028. 38 Ibid at paras. 91–94, 103 and 138.

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only as regards the rights contained in said treaty, but also as regards all the laws enacted by the State and their implementation. In other words, if a State discriminates in ensuring the respect for or guarantee of a treaty-based right, it would not be in compliance with the obligation established in Article 1(1) and the substantive right in question. If, to the contrary, the discrimination refers to unequal protection by domestic law or its application, the fact should be examined in light of Article 24 of the American Convention in relation to the categories protected under Article 1(1) of the Convention. The Court finds that Colombia’s domestic laws regulating de facto marital unions and the property regime between permanent partners, as well as the regulatory decree that created the social security system, established a difference in treatment between heterosexual couples who could form a de facto marital union and same-sex couples who could not. The Inter-American Court has established that a person’s sexual orientation and gender identity are categories protected by the Convention. Thus, any discriminatory law, act or practice based on an individual’s sexual orientation is prohibited by the Convention. Consequently, no rule, decision or practice of domestic law, either by State authorities or by private individuals, may diminish or restrict, in any way, the rights of a person based on their sexual orientation. In that regard, this inter-American instrument prohibits discrimination in general, including categories such as sexual orientation, which cannot be used as a basis for denying or restricting any of the rights established in the Convention. Any discrimination of this type would be contrary to the provisions of Article 1(1) of the American Convention. ... This Court concludes that the State is responsible for the violation of the right to equality and non-discrimination established in Article 24 of the Convention, in relation to Article 1(1) thereof, to the detriment of Mr. Angel Duque, given that he was not permitted to apply for a survivor’s pension under conditions of equality, as established in Colombia’s domestic legislation.

Judge Vio Grossi issued a partial dissent, which echoes the legal position of the Conservative NGO Center for Family and Human Rights: Well, in this regard it should be noted that, at the time in question, there was no international legal obligation to grant a survival pension to the person who had a de facto union with the deceased of the same sex, given that such unions were not recognized in the international arena, so it was not appropriate to invoke them as support for the litigious object or the claim of the right to request the pension in question. Indeed, there is not a single source of International Law that imposed on the State, at the time of the events, the obligation to recognize the right to survivors’ pensions for couples made up of people of the same sex. The foregoing, because, at that time and as stated in the Judgment, not only was there no treaty or rule of international law that alluded to such de facto unions, but even these have only been recognized in only five States Parties of the Convention after the year 2002. To this data it should be added that same-sex marriage has been allowed only in four States Parties to the Convention and in very recent times. So, then, that even today, sixteen

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States Parties to the Convention do not contemplate in their laws de facto or civil unions between persons of the same sex.39

The Center for Family and Human Rights also presented an amicus curiae which argued that international law (including the American Convention) does not require states to either recognize the categories of “sexual orientation” and “gender identity” within their laws. Nor did they find support within international law to offer special protections or rights to individuals based upon them, such as to guarantee the right to change one’s name according to personal gender identity.40 The brief correctly points out that the American Convention protects family rights and offers a definition of family that appears to infer a heterosexual couple: Article 17. Rights of the Family 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. 2. The right of men and women of marriageable age to marry and to raise a family shall be recognized, if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of nondiscrimination established in this Convention. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. The States Parties shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests. 5. The law shall recognize equal rights for children born out of wedlock and those born in wedlock.

The Center does not accept sexual orientation as a category for binding non-discrimination protection, especially at the level of jus cogens; instead the Center suggests that this should be an optional additional protection to be determined by the state itself. The Center notes that Article 1 does not mention gender identity or sexual orientation as categories for non-discrimination pro-

Partial dissent by Judge Eduardo Vio Grossi (26 February 2016) p. 7. Amicus brief presented by the Center for Family and Human Rights to the Inter-American Court of Human Rights on the Request for an Advisory Opinion by Costa Rica 17 May 2016, http://​www​.corteidh​.or​.cr/​sitios/​observaciones/​costaricaoc24/​ 25​_center​_family​_hr​.pdf (accessed 14 July 2020). 39 40

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tection. The Center asserts that the Court overreached itself with the recognition of sexual orientation as a protection category in the Riffo and Duque cases: Despite what the Court held in the Atala Riffo case, no binding UN treaty mentions the notions of sexual orientation and gender identity, and no UN treaty can be fairly interpreted to include these notions. Also, there is no colorable argument that a customary international norm exists with regard to these notions, since well over 70 countries proscribe homosexual conduct in their penal laws. To support its conclusion in that case, the Court referenced a good number of declarations and resolutions, all of which, however, are non-binding in nature. Among other controversial UN documents, it mentioned the 2008 “Declaration on human rights, sexual orientation and gender identity.” It failed to specify, however, that this was a non-binding statement, and not even a negotiated resolution. It equally failed to mention that this Declaration was only signed by 66 UN member states. It also omitted that only 12 of the 35 member states of the Organization of the American States (OAS) undersigned the statement. It then referenced statements by the Human Rights Committee and by the Committee on Economic, Social, and Cultural Rights, which classified sexual orientation as one of the categories of forbidden discrimination considered in article 2(1) of the International Covenant on Civil and Political Rights and Article 2(2) of the International Covenant on Economic, Social, and Cultural Rights. All the referenced statements, however, are non-binding in nature. Treaty bodies’ “evolutionary” and “progressive” interpretations of treaty provisions are recommendations for states, and nothing more. They have no legal value. Treaty bodies lack the power to change, to interpret, or to repeal the laws of sovereign states. Based on their mandates, they can neither increase, nor decrease, nor in any other way modify the provisions that were agreed and ratified by the signatory states, and of which only sovereign states are the final interpreters.

The amicus brief further underscores that only six OAS member states recognize same-sex marriage and only four offer similar rights to marriage, and 11 OAS states penalize homosexual acts. The validation of the conservative NGO’s analysis by Judge Grossi reveals the mirroring of the polarization within the society. On the one hand, this may legitimize the Court as being pluralistic in orientation, but it may also reflect increased politicization within the Court. 7.4.3

State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples41

In May 2016, the Republic of Costa Rica requested an Advisory Opinion from the Court to interpret the scope of the rights to privacy, the right to a name,

41 Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples State Obligations Concerning Change of Name, Gender Identity, and Rights derived

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and the right to equal protection of the laws under the American Convention on Human Rights. In its Request, Costa Rica observed that protection of rights relating to sexual rights and gender identity varies significantly across the countries of the OAS, and that further clarification as to what amounts to discrimination is needed. Hence, Costa Rica specifically asked the Court to address the following issues: (i)

whether states must “recognize and facilitate the name change of an individual in accordance with his or her gender identity”; (ii) whether the lack of administrative procedures for name change in such circumstances could be considered contrary to the American Convention on Human Rights; (iii) whether the American Convention requires states to recognize all patrimonial rights that derive from a same-sex relationship; and (iv) whether there must be a specific mechanism to govern relationships between persons of the same sex for the state to recognize all the economic rights that derive from that relationship. The Court received 47 amicus curiae briefs from both liberal and conservative non-state actors: 1. ADF International 2. Amicus DH, A.C. 3. Asociación Civil 100% Diversidad y Derechos – Anexo 1. Dictamen Secretaría Nacional de Niñez, Adolescencia y Familia (SENNAF) – Anexo 2. Dictamen Fiscalía de Estado de Salta – Anexo 3. Acta Consejo Federal de los Registros del Estado Civil y Capacidad de las Personas de la República Argentina; Ushuaia – Provincia de Tierra del Fuego; 14 de mayo de 2014 – Anexo 4. Nota 100% Diversidad y Derechos ante el Consejo Federal de abril de 2016 – Anexo 5. Disposición 1094/2016 del Registro de Provincia de Buenos Aires – Anexo 6. Nota 100% Diversidad y Derechos ante el Consejo Federal de octubre de 2016 – Anexo 7. Disposición del Registro de Ciudad de Buenos Aires de diciembre de 2016 4. Asociación OTD Chile 5. Asociación de Travestis, Transexuales y Transgéneros de Argentina y la Red de Personas Trans de Latinoamérica y del Caribe from a relationship between Same-Sex Couples (Interpretation and Scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American Convention on Human Rights), Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (Series A) No. 24 (24 November 2017), http://​www​.corteidh​.or​.cr/​docs/​opiniones/​seriea​_24​_eng​.pdf (accessed 17 July 2020).

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6. Asociación Frente por los Derechos Igualitarios, Asociación Ciudadana ACCEDER, Asociación Movimiento Diversidad pro Derechos Humanos y Salud, Asociación Transvida y Asociación Centro de Investigación y Promoción para América Central (CIPAC) 7. Asociación para la Promoción y Protección de los Derechos Humanos “Xumek” - Anexo 1. Mapeo legal sobre el cambio de nombre de las personas transgénero 8. Australian Human Rights Centre, UNSW Faculty of Law 9. Avocats Sans Frontières Canada et la Clinique internationale de défense des droits humains de l’UQAM 10. Center for Family and Human Rights (C-Fam) 11. Centro de Derechos Humanos de la Pontificia Universidad Católica del Ecuador 12. Centro de Direito Internacional 13. Centro de Estudios en Derechos Humanos (CEDH) y la Carrera de Especialización en Protección de Derechos de Niños, Niñas y Adolescentes, pertenecientes a la Facultad de Derecho de la Universidad Nacional del Centro de la Provincia de Buenos Aires (UNICEN) 14. Centro de Promoción y Defensa de los Derechos Sexuales y Reproductivos – PROMSEX 15. Centro Guadalupe Vida y Familia de Puerto Rico 16. Centro por la Justicia y el Derecho Internacional (CEJIL), Asociación LGTB Arcoíris de Honduras, Asociación REDTRANS – Nicaragua, Centro de Investigación y Promoción de los Derechos Humanos, Centro de Investigación y Promoción para América Central de Derechos Humanos, Coalición contra la Impunidad, Comité de Familiares de Detenidos Desaparecidos en Honduras, Comunicando y Capacitando a Mujeres Trans, Fundación de Estudios para la Aplicación del Derecho, Mulabi / Espacio Latinoamericano de Sexualidades y Derechos, y la Unidad de Atención Sicológica, Sexológica y Educativa para el Crecimiento Personal, A.C. 17. César Norberto Bissutti, Juliana Carbó, Gisela Vanesa Hill, Antonela Sabrina Rivero, Estefanía Watson y Leandro Anibal Ardoy, Integrantes de la Clínica Jurídica de DDHH de la Facultad de Ciencias Jurídicas y Sociales de la Universidad Nacional del Litoral Santa Fe, Argentina 18. Círculo de Derecho Internacional de la Facultad de Derecho de la Universidad del Pacífico del Perú 19. Clínica de Derechos Humanos y el Semillero de Derecho Internacional de la Pontificia Universidad Javeriana Cali 20. Clínica de Direitos Humanos da Universidade Federal de Minas Gerais 21. Clinica de Direitos Humanos do Programa de Pós-graduação em Direito da Pontifícia Universidade Católica do Paraná

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22. Clínica de Direitos Humanos e Direito Ambiental da Universidade do Estado do Amazonas (Clínica DHDA/UEA) 23. Clínica de Interés Público contra la Trata de Personas del Instituto Tecnológico Autónomo de México y el Grupo de Acción por los Derechos Humanos y la Justicia Social A.C. 24. Clínica Jurídica de Interés Público “Grupo de Acciones Públicas” de la Facultad de Jurisprudencia de la Universidad del Rosario de Colombia 25. Clínica Jurídica de la Universidad de San Andrés, Argentina 26. Comisión Colombiana de Juristas 27. Dejusticia - Anexo 1. Derechos de las parejas del mismo sexo en las Américas - Anexo 2. Identidad de género 28. Dieciseis organizaciones de derechos humanos que forman parte de la Coalición de Organizaciones LGBTTTI ante la OEA: Colombia Diversa; Akahatá; Asociación Alfil; Asociación Panambi; Centro de Promoción y Defensa de los Derechos Sexuales y Reproductivos (Promsex); Colectiva Mujer y Salud; Fundación Diversencia; Heartland Alliance – Global Initiatives for Human Rights (GIHR); Liga Brasilera de Lésbicas; Letra S, Sida, Cultura y Vida Cotidiana, A.C.; Otrans – Reinas de la Noche; Ovejas Negras; Red Mexicana de Mujeres Trans; Red Latinoamericana y del Caribe de Personas Trans (Redlactrans); Taller Comunicación Mujer; y UNIBAM. - Anexo 1. Encuesta a Personas Trans sobre el Reconocimiento de la Identidad de Género. Trámite administrativo (Resultados de la Campaña en Redes Sociales #MiNombreMiIdentidad) 29. Facultad de Derecho de la Pontificia Universidad Católica de Chile 30. Facultad de Derecho Tijuana de la Universidad Autónoma de Baja California 31. Facultad de Derecho de la Universidad Veracruzana 32. Fundación Iguales 33. Fundación Myrna Mack 34. Grupo de Advogados pela Diversidade Sexual e de Gênero 35. Grupo de estudiantes de la Escuela Libre de Derecho de México. Coordinadores: Daniel Esquivel Garay, Marianna Olivia Loredo Celaya, Claudio Martínez Santistevan. Integrantes: Aranxa Bello Brindis; Daniela Morales Galván Duque; Eduardo González Ávila; Alejandra Muñoz Castillo Rosete Mac Gregor; Jimena Pulliam de Teresa, Carlos Rodolfo Ríos Armillas. Asesor: Lic. Elí Rodríguez Martínez 36. Grupo de Investigación Problemas Contemporáneos del Derecho y la Política (GIPCODEP), adscrito a la Facultad de Derecho y Ciencias Políticas de la Universidad de San Buenaventura Cali 37. “Humanismo y Legalidad”, “Ixtlamatque Ukari A.C” y “La Cana Proyecto de Reinserción Social”

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38. Jorge Kenneth Burbano Villamarín, Laura Melisa Posada Orjuela y Hans Alexander Villalobos Díaz, miembros del Observatorio de Intervención Ciudadana Constitucional de la Facultad de Derecho de la Universidad Libre de Bogotá 39. Karla Lasso Camacho y María Gracia Naranjo Ponce, estudiantes de la Clínica Jurídica de la Universidad San Francisco de Quito 40. LIBERARTE Asesoría Psicológica 41. Movimiento Diversidad pro Derechos Humanos y Salud 42. Natalia Castro y Gerardo Acosta, miembros del Grupo de Litigio de Interés Público de la Universidad del Norte 43. Red Lésbica Cattrachas de Honduras 44. Parlamentarios para la Acción Global 45. The Impact Litigation Project of the Center for Human Rights & Humanitarian Law at American University Washington College of Law 46. The John Marshall Law School International Human Rights Clinic 47. Universidad Centroamericana José Simeón Cañas The Court declared that the right to name change is protected by the American Convention and that all marriage should be made available to same-sex couples, in reference to the rights of equality and non-discrimination, which the Court considers to have the quality of jus cogens:42 The Court has asserted that the notion of equality emanates directly from the oneness of the nature of humankind and it is dissociable from the essential dignity of the individual. Thus, any situation is incompatible with this that, considering a specific group to be superior, gives it privileged treatment or, inversely, considering it inferior, treats it with hostility or otherwise subjects it to discrimination in the enjoyment of rights that are accorded to others not so classified. States must refrain from taking actions that are directly or indirectly aimed at creating situations of de jure or de facto discrimination. The Court’s jurisprudence has also indicated that at the current stage of evolution of international law, the fundamental principle of equality and non-discrimination has entered the domain of ius cogens. The whole legal structure of national and international public order rests on this premise and it permeates every legal system ... States are obliged to adopt positive measures to reverse or to change discriminatory situations existing within their society that prejudice a specific group of persons. This entails the special obligation of protection that the State must exercise with regard to the actions and practices of third parties, who with its acquiescence or tolerance, create, maintain or facilitate discriminatory situations.43 Ibid at paras. 61–65. In para. 66, the Court recognizes that differential treatment should be objective, reasonable, pursue a legitimate purpose, and respect proportionality between means and ends in order to be considered in accordance with the American Convention on Human Rights. “Moreover, in cases of prejudicial differential treatment, that is, when the dif42 43

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The Court stated that the right to change one’s name is related to the general principles of the right to a name and the right to identity, specifically protecting one’s self-perceived gender identity, as derived from the right to a juridical personality (Article 3), the right to personal liberty (Article 7), the right to privacy (Article 11), the right to freedom of thought and expression (Article 13), and the right to a name (Article 18). It held that states are obligated to recognize, regulate, and establish prompt, free, and confidential procedures (subject to informed consent and not requiring medical or psychological certifications that are unreasonable or pathologizing) to guarantee this right.44 Furthermore, it set forth that marriage is not defined by procreation, but rather is part of a social reality of the construct of family. The Court stated that states must extend all existing legal mechanisms, including marriage, to same-sex couples in accordance with the right to protection of privacy and family life (Article 11) and the right to protection of the family (Article 17). The Court noted that Article 1 requires states to respect the full and free exercise of rights by persons subject to their jurisdiction without discrimination: The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

The Court explained its reasoning for application of the right non-discrimination to persons of a different sexual orientation or gender identity: ... the prohibited categories of discrimination listed under Article 1(1) of the American Convention are neither exhaustive nor restrictive, but merely indicative. Thus, the Court finds that by including the expression “or any other social condition” the wording of this article leaves the grounds of discrimination open in order to recognize other categories that were not explicitly listed but are analogous to these. Consequently, when interpreting this phrase, the hermeneutic alternative that is most favorable to the protection of the rights of the individuals and compatible to the application of the pro persona principle must be chosen ... it can be considered that the prohibition to discriminate on the grounds of gender identity is understood not only with regard to the real or self-perceived identity, but also in relation to the

ferentiating criteria correspond to one of the categories protected by Article 1(1) of the Convention which relate to: (i) permanent personal traits that an individual cannot dispose of without losing his or her identity; (ii) groups that are traditionally marginalized, excluded or subordinated, and (iii) irrelevant criteria for the equitable distribution of property, rights or social benefits, the Court considers that there is evidence that the State has acted arbitrarily.” 44 The Opinion is set forth in para. 229.

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identity perceived externally, regardless of whether or not that perception corresponds to the reality.45

With respect to same-sex marriage, the Court indicated that “a restrictive interpretation of the concept of ‘family’ that excludes the emotional ties between a same-sex couple from the inter-American protection would defeat the object and purpose of the Convention.”46 The Court called upon states to recognize same-sex marriage and grant full patrimonial rights:47 The Court finds no reason to ignore the family relationships that same-sex couples who seek to undertake a life project together may establish by means of permanent emotional ties, typically characterized by cooperation and mutual support. In the Court’s opinion, it is not its role to give preference to or distinguish one type of family tie over another. However, the Court finds that, under the Convention, it is the obligation of States to recognize such family ties and protect them ... The Court deems it important to stress that with this it is not downplaying other family models, nor is it ignoring the importance of the family institution as an essential component of society. To the contrary, the Court is recognizing the same dignity to the emotional ties of a couple formed by two persons who are part of a historically oppressed and discriminated minority ... The Court understands that the principle of human dignity derives from the complete autonomy of the individual to choose with whom he or she wishes to enter into a permanent and marital relationship, whether it be a natural one (de facto union) or a formal one (marriage). This free and autonomous choice forms part of the dignity of each person and is intrinsic to the most intimate and relevant aspects of his or her identity and life project.

Judge Vio Grossi issued a partial dissent, noting that the union of same-sex couples was to be regulated at the national level by the state, and disagreed that the Court could impose a regional change in marriage and family law through an Advisory Opinion:48 It is also essential to recall that international law, including international human rights law, at the current state of its development, does not include special rights for unions between same-sex couples. There is no binding treaty for OAS Member States that regulates the situation of such couples. The Convention does not do so. Furthermore, there is no customary law or general principle of law that does so. Nor do the laws of most of those States refer to the matter. All this can be deduced from

Paras. 67, 79. Para. 189. 47 Paras. 191, 192, and 225. 48 Partial Dissent by Judge Eduardo Vio Grossi to Advisory Opinion OC-24/17 (24 November 2017) paras. 66–71. 45 46

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OC-24. Of the 34 Member States of the OAS, only eight of them regulate cohabitation unions, civil unions or de facto unions. In short, there is no autonomous source of international law, in other words, a treaty, custom, or general principle of law that, in the legal sphere of the Americas, governs the union of same-sex couples, creating the institution and establishing the corresponding rights. All that exists, are unilateral legal instruments of some OAS Member States that, logically, are binding only for the States that have issued them, particularly as they correspond to a minority and, thus, cannot be considered evidence of an international custom or serve as grounds for a general principle of law. With regard to the resolutions of international organizations concerning unions of same-sex couples, these are not declarations of law; that is, they do not interpret a provision of a convention or customary law or a general principle of law in force for the OAS Member States. Consequently, they do not constitute a supplementary source of international law, but rather express an aspiration – that could evidently be considered very legitimate – of most of the member States of the international organization concerned, so that it is either international law or the domestic law of each of them that includes and regulates the situation. And, regarding jurisprudence, there is only the judgment handed down in the Atala case. In this regard, it should be noted that, as a supplementary source of international law, jurisprudence is not binding if it is expressed in advisory opinions and, conversely, it is binding if it is expressed in the ruling in a contentious case, but only for the State that is a party to the respective case. Consequently, the situation of unions between same-sex couples is a matter that also falls within the internal, domestic or exclusive jurisdiction of the State. This signifies, first, that States, in exercise of their internal, domestic or exclusive jurisdiction, may regulate this situation unilaterally; international law does not prevent them from doing so. Second, it means that States may decide not to regulate the situation; in other words, based on the current development of international law, they do not commit any internationally wrongful act in this case. And, third, it means that the Court’s possible control of the conventionality of the actions taken by States in this regard, either of a preventive nature by an advisory opinion, or of a binding nature by a judgment in a contentious case, would only be admissible with regard to those States that have regulated the relationship between same-sex couples, in order to determine whether this regulation has had a negative effect on human rights. From a different perspective this means that the recognition and regulation of unions between same-sex couples cannot be imposed on States by jurisprudence, and especially by an advisory opinion, which is not binding for the State that requests the opinion and, above all, for other States.

Hence, Judge Vio Grossi mirrored the argument of ADF International which stated: “Tragically, this case is a reflection of how the Court consistently overreaches its mandate by imposing an agenda over the democratic process and undermining the sovereignty of Member States.”49 ADF International filed 49 Amicus Brief offered by ADF International to the Inter-American Court of Human Rights on the Advisory Opinion requested by Costa Rica, http://​www​ .corteidh​.or​.cr/​sitios/​observaciones/​costaricaoc24/​45​_adfinternational​.pdf (accessed 11 February 2021)

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an amicus brief which asserted that there was international disagreement on the issue of granting human rights derived from sexual orientation or gender identity. It underscored the lack of universal consensus on soft law resolutions on sexual orientation issued by the UN and OAS, calling for a margin of appreciation approach to be applied, thereby respecting state sovereignty, and emphasizing that the American Convention does not require states to recognize and facilitate a name change correlating with gender identity.50 It is notable that in 2003 when the Court issued an Advisory Opinion recognizing non-discrimination as jus cogens in relation to the denial of consular rights to illegal migrant workers in the United States, this may have been viewed more in keeping with the social justice orientation of some religious groups and thereby resulted in a lesser impact on legitimacy, thereby avoiding the influx of amicus curiae from conservative interest groups.51 Indeed, the amicus curiae from non-state actors came from law schools, law firms, and IOs/NGOs working with migrant rights: –– ILO –– Clínicas Jurídicas del Colegio de Jurisprudencia de la Universidad San Francisco de Quito –– Delgado Law Firm –– Liliana Ivonne González Morales, Gail Aguilar Castañón, Karla Micheel Salas Ramírez e Itzel Magali Pérez Zagal, estudiantes de la Facultad de Derecho de la Universidad Nacional Autónoma de México (UNAM) –– Comisión Interamericana de Derechos Humanos –– Harvard Immigration and Refugee Clinic of Greater Boston Legal Services at the Harvard Law School –– Working Group on Human Rights in the Americas of Harvard and Boston College Law Schools y el Centro de Justiça Global/Global Justice Center –– Señor Thomas A. Brill, del Law Office of Sayre & Chavez –– Law Office of Sayre & Chavez; Labor, Civil Rights and Immigrants’ Rights Organizations in the United States –– Academia de Derechos Humanos y Derecho Internacional Humanitario de la American University, Washington College of Law y el Programa de Derechos Humanos de la Universidad Iberoamericana de México –– Center for International Human Rights of the Northwestern University, School of Law.

Ibid. Inter-American Court of Human Rights, Advisory Opinion OC-18/03 (September 23, 2003), Request by Mexico. See also, Advisory Opinion OC/21-14 19 (August 2014), Request by Argentina, Brazil, Paraguay, and Uruguay. 50 51

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The Court also received amicus curiae briefs on the Advisory Opinion on Migrant Children from similar institutions as well as NGOs working for Women and Children’s Rights. Urueña observes the Evangelicals’ paradoxical approach to both submitting amicus curiae to the Inter-American Court and rejecting its output. He calls upon the Court to recall its previous acceptance of indigenous belief traditions regarding property, thereby calling for the acceptance of the pluralism of religious beliefs held within the broader community, avoiding “secular fundamentalism” by deferring to states for resolution of these issues: By both rejecting and embracing the Inter-American Court in their transnational strategy, Evangélicos (backed by their U.S. based partners) are not pushing for the collapse of the distinction between secular and religious discourse. Instead, they are pushing for a different understanding of the secular and the religious. Evangélicos reject the current Court’s definition of the religious/secular line but, at the same time, embrace the Court as a forum in which to promote their ideas. For them, the Court should not decide which ideas are religious (thus belonging to the private sphere) and which are secular (thus belonging to the public sphere) – that decision belongs to the believer herself, who reclaims the agency to assert that part of her beliefs are not only religious and private, but also public ... On this view, there is an equivalency between competing public views (for example, Evangélicos’ views opposing same-sex marriage and others’ views supporting it), each of which should be considered on its own merits and not through a differentiated prism in which one is “religious” and the other “secular.” In this division of labor, the Court should not intervene to protect one particular view. Rather, it should be a mere referee and let the debate among the different views play out – ideally in the ballot box.52

Indeed, the Inter-American Court of Human Rights was concerned on April 23, 2019, as there was a joint press release from the Ministry of Foreign Relations and the Ministry of Justice and Human Rights on the Inter-American System of Human Rights, as the representatives of Argentina, Brazil, Colombia, Paraguay, and Chile presented a note with a declaration on the Inter-American System to the Inter-American Commission on Human Rights which called for respect for subsidiarity and the constitutional system for reparation.53 This sent a strong signal to the Court that these governments shared Judge Vio Grossi’s perspectives, which also correlated with the conservative NGO amicus briefs

52 R. Urueña, “Evangelicals at the Inter-American Court of Human Rights” 113 AJIL Unbound (2019) pp.  360–364. doi:​10​.1017/​aju​.2019​.64. 53 Felipe Vargas, “Chile y otros cuatro países entregan nota a la CIDH solicitando ‘respetar margen de autonomía’ para asegurar derechos”, EMOL (23 April 2019), https://​www​.emol​.com/​noticias/​Nacional/​2019/​04/​23/​945568/​Chile​-entrega​ -declaracion​-a​-la​-CIDH​-en​-la​-que​-pide​-respetar​-margen​-de​-autonomia​-para​-asegurar​ -derechos​.html (accessed 17 July 2020).

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that accuse the Court of interfering with domestic politics.54 Human rights evolve through jurisprudence that expands the interpretation of protection categories against exclusion or oppression by the state, hence there is an inescapable merger of politics and law which requires careful balancing. In terms of future appointments to the Court, there is concern that candidates may be screened for their orientation on these issues, thereby signaling a risk of potential “packing of the Court.”55 President Odio Benito’s term ends in 2021 and she will not run for another term, hence there is interest in whether other women will be appointed. This creates a precarious context for the Court when drafting decisions and reparations orders that are related to gender. In May 2020, the Court received a compilation delineating which measures (judicial, administrative, or mixed) states have taken to implement the standards set forth in the Advisory Opinion on Gender Identity (e.g. measures should be accessible, confidential, and include training) and what challenges remain.56 The study signals a positive impact of the Court in promoting awareness of the importance of engaging in structural reforms to guarantee equality and non-discrimination, thereby providing a solid foundation for enjoyment of positive peace through the Court’s articulation of jus cogens obligations. The next section examines the challenge of compliance with the non-repetition orders involving women’s rights and explains the impact on sustainable gendered peace.

7.5

NON-COMPLIANCE WITH REPARATIONS ORDERS RELATED TO NON-REPETITION GUARANTEES INVOLVING WOMEN’S RIGHTS

According to Judge Ricardo Pérez Manrique, the Inter-American Court of Human Rights’ primary contribution to peace is through the issuance of reparations orders related to non-repetition guarantees that are designed to correct structural discrimination, thereby forming a foundation for positive peace.57 54 On the influence of international courts upon international and domestic politics see Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press 2014). 55 For a similar situation at the domestic level, see Ezequiel González Ocantos, “Persuade Them or Oust Them: Crafting Judicial Change and Transitional Justice in Argentina” 46(4) Comparative Politics (2014) pp. 479–498. 56 Organization of American States, Panorama del Reconocimiento Legal de la Identidad de Genero en las Americas, OEA/Ser.D/XXVII.5 (OAS May 2020), http:// ​ c larciev​ . com/​ i dentidaddegenero/​ p ublic/ ​ f iles/ ​ P ANORAMA ​ % 20DEL​ %20RECONOCIMIENTO​ % 20LEGAL​ % 20DE​ % 20LA ​ % 20IDENTIDAD ​ % 20DE​ %20GENERO​%20EN​%20LAS​%20AMERICAS​.pdf (accessed 17 July 2020). 57 Interview March 14, 2019.

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Paulina García-Del Moral articulated the phenomenon of “formally feminist states” within Latin America that had ratified the relevant conventions and adopted legislation on women’s rights but nevertheless displayed “overt and subtler patterns of state resistance” to actual implementation and enforcement of these norms.58 She calls upon the Court “to place the onus on the state to provide proof of the effectiveness of its implementation of feminist laws and policies in order to avoid engaging in undue judicial deference.” These cases include input by the liberal NGO, CEJIL, in following up compliance reports. Gisela De León, CEJIL, expressed concern that the Inter-American Court of Human Rights was reducing the number of non-repetition orders in order to increase its level of effective compliance; the issue is whether this policy will reduce the Court’s impact on sustainable peace.59 This section presents cases in which the non-repetition guarantees seeking to correct structural violence directed at women/gender and inter-sectoral identity are facing compliance resistance. 7.5.1

I.V. v. Bolivia

This case involved a refugee woman from Peru who sought asylum in Bolivia in 1993. In 2000, she became pregnant and suffered complications resulting in her hospitalization in a public state hospital. She underwent a caesarian section and had her fallopian tubes tied without her consent, resulting in her sterilization. The Court found Bolivia responsible for violations of the rights to physical integrity, freedom, dignity, access to information, and family life, and the right to form a family. The reparation order called for training programs for medical students and medical professionals and health personnel on issues of informed consent, gender-based discrimination, and stereotyping, as well as gender violence. The Court indicated its concern about lack of implementation:60 This Court values the progress made by Bolivia to comply with this measure. However, it considers it pertinent to request the following precise information from the State in order to assess compliance with this reparation measure: (i) the actions aimed at promoting the programs ordered in the Judgment for medical professionals and the personnel of the health system, health and social security, (ii) if public and private universities in Bolivia adapted their medical curricula to ensure that they 58 Paulina García-Del Moral, “The ‘Formally Feminist State’: A Potential New Player in the Inter-American Human Rights System?” 113 AJIL Unbound (2019) pp. 365, 369. 59 Interview with Gisela De León, CEJIL, March 26, 2019. 60 I/A Court H.R., Case of I.V. v. Bolivia. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of June 1, 2020, para. 26.

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include issues of informed consent, gender-based discrimination and stereotypes, and gender-based violence and (iii) measures which will be adopted to ensure that such training programs are developed in a permanent and mandatory manner. Based on the foregoing, this Court considers that the measure ordered in operative paragraph 12 of the Judgment is pending compliance.

The failure of the state to tackle inter-sectoral discrimination within health care signals an acquiescence in a culture of intolerance, which increases the risk of violence and violations against women, in particular those having refugee, migrant, or other vulnerable status. 7.5.2

Atala Riffo and Daughters v. Chile

In 2002, Atala Riffo, a Chilean judge, separated from her husband. They agreed that she would retain custody of their three daughters. However, when Ms. Riffo’s lesbian partner moved in, her ex-husband filed for custody, claiming that her homosexuality was harmful to the children. Although Ms. Riffo won her case at the lower court, her ex-husband appealed to the Chilean Supreme Court, which found in favor of the ex-husband, stating that Ms. Riffo’s homosexuality would be detrimental to their daughters’ development. Ms. Riffo filed a claim with the Inter-American Court of Human Rights, which found that the Supreme Court had discriminated against Ms. Riffo and violated her right to equality and non-discrimination. The Court recognized sexual orientation as a protected class: A right granted to all persons cannot be denied or restricted under any circumstances based on their sexual orientation. This would violate Article 1(1) of the American Convention. This inter-American instrument proscribes discrimination, in general, including categories such as sexual orientation, which cannot be used as grounds for denying or restricting any of the rights established in the Convention.61

Although the state paid financial compensation it has yet to comply with the reparation order requiring structural changes to remedy discriminatory attitudes within the judiciary via education and training programs for public judicial officials at the regional and national levels.62 61 I/A Court H.R., Case of Atala Riffo and daughters v. Chile. Merits, Reparations and Costs. Judgment of February 24, 2012. Series C No. 239, para. 93. 62 I/A Court H.R., Case of Atala Riffo and daughters v. Chile. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of February 10, 2017. For an overview of the intended transformational impact of these orders see Álvaro Paúl, “Examining Atala-Riffo and Daughters v. Chile, the First Inter-American Case on Sexual Orientation, and Some of its Implications” 7(1–2) Inter-American and European Human Rights Journal (2014) (Protection of Human

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González and Others (“Campo Cotton”) v. Mexico (2009)

This case involved the murder of two young girls and one woman in the cotton fields in Ciudad Juarez, Mexico in 2001.63 The state failed to conduct a search or effective investigation and prosecution. The Court held the state responsible for the state of impunity. Caroline Bettinger Lopez described the Court as recognizing “double discrimination” that resulted in hostile stereotypes that were the cause and consequences of gender-based violence, which constituted a form of discrimination. The Court indicated the importance of pursuing thorough long-term training of police, prosecutors, judges, the military, legal assistance officers, and public officials to ensure due diligence in investigation, processing, prosecution, and reparation of gender discrimination/ violence/homicides in order to prevent gender violence and stereotyping. The state was to carry out a public education program and provide a compliance report within three years. The victims filed a report that concluded that ten years after the decision, the Mexican state had not implemented structural changes nor taken real, adequate, or sufficient actions to prevent and eliminate violence against women. At present, not only is Ciudad Juarez one of the cities which has the highest rates of violations against women in Mexico, but femicide and other gender violations have extended throughout the country.64 The Mexican state alleged that it had taken measures to combat femicides and forced disappearances of women, however protests have continued alleging failure of the state to provide protection to women.65 This case was followed by others raising

Rights in the Americas: Selected Essays for the Inter-American Court of Human Rights’ Anniversary) pp. 54–74, https://​ssrn​.com/​abstract​=2​ 539558 (accessed 17 July 2020). 63 I/A Court H.R., Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 16, 2009. Series C No. 205, see para. 4.2.8. I/A Court H.R., Case of González et al. (“Campo Algodonero”) v. Mexico. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of May 21, 2013. 64 Observations by the NGO Centro Para el Desarollo Integral de la Mujer (CEDIMAC) on the Seventeenth Report by Mexico on Compliance with the Non-Repetition Orders issued by the Inter-American Court of Human Rights, http://​ www​.corteidh​.or​.cr/​docs/​supervisiones/​escritos/​gonzalez​_y​_otras​_campo​_algodonero​ _vs​_meyico/​Obs​_Rep​_15​_10​_2019​.pdf (accessed 14 July 2020). 65 Seventeenth Report by Mexico on Compliance with the Non-Repetition Orders issued by the Inter-American Court of Human Rights (16 November 2019), http://​www​ .corteidh​.or​.cr/​docs/​supervisiones/​escritos/​gonzalez​_y​_otras​_campo​_algodonero​_vs​ _meyico/​Obs​_Estado​_24​_07​_2019​.pdf (accessed 14 July 2020). See James Doubek, “Mexican Women Stay Home to Protest Femicides in ‘A Day Without Us’”, NPR (9

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similar concern for non-compliance with non-repetition guarantees related to gendered peace. 7.5.4

Fernández Ortega and Others v. Mexico (2010)

This case involved the rape and torture of an indigenous woman by Mexican military personnel. The Court addressed the state’s failure to investigate the case and prosecute those responsible as well as noting the lack of access to justice of indigenous women in Mexico, citing inter-sectoral discrimination as a factor. It applied the Inter-American Convention on Prevention of Violence against Women. The Court commended the state for the existence of various actions and training courses. It called upon the state to ensure that the training include, as appropriate, the study of the provisions set forth in the Istanbul Protocol and in the Guidelines of the World Health Organization, and the need for care of alleged victims of rape, particularly when they belong to groups in situations of greater vulnerability such as indigenous women:66 As it has done previously, the Court provides that the State continue to implement programs and ongoing training courses on diligent investigation in cases of sexual violence against women, which include a gender and ethnicity perspective. These courses should be taught to officials federal and the state of Guerrero, particularly members of the Public Ministry, the Judiciary, the Police as well as health sector personnel with jurisdiction in this type of cases and that because of their functions constitute the primary care line for women victims of violence. ... This Court considers it important to strengthen the institutional capacities of the State through the training of officials of the Armed Forces on the principles and norms for the protection of human rights and on the limits to which they must be subjected, in order to prevent the repetition of acts such as those which occurred in the present case. For this, the State must implement, within a reasonable time, a permanent and mandatory program or course of training and training in human rights that includes, among other issues, the limits on the interaction between military personnel and civilians, gender and indigenous rights, addressed to members of the Armed Forces, at all hierarchical levels. ... Finally, the Court observes that the diagnosis made by the Secretariat of Women of the State of Guerrero provided by Mexico identified, among other institutional barriers that hinder the attention to violence in indigenous and rural areas, the concentration of said services in cities and the difficulty of access and transfer to the headquarters of care services. Said diagnosis recommended, among other measures, to decentralize services and promote itinerant sensitization and training services in

March 2020) https://​www​.npr​.org/​2020/​03/​09/​813699719/​mexican​-women​-stay​-home​ -to​-protest​-femicides​-in​-a​-day​-without​-us​?t​=​1613042073546 (accessed 17 July 2020). 66 I/A Court H.R., Case of Fernández Ortega et al. v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of August 30, 2010. Series C No. 215, paras. 260, 262, and 278.

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detection and attention to violence and improve access to telephone services for the indigenous communities of Guerrero, to allow better care for women victims of violence. The Court understands that the first of the measures would be being attended to with the mobile units informed. Notwithstanding the foregoing, the Court values said document and considers it useful to indicate to the State that it analyze the need to advance in the implementation of these two recommendations in the area where the facts of this case occurred.

The Court issued a report noting that the State of Mexico had not complied with orders regarding training of federal and state officials and reiterated its orders:67 Continue to implement programs and ongoing training courses on diligent investigation in cases of sexual violence against women, which include a gender and ethnicity perspective, which should be given to federal and Guerrero state officials. Implement, within a reasonable time, a permanent and mandatory program or course of training and training in human rights, addressed to the members of the Armed Forces. Provide the necessary resources for the mep’aa indigenous community of Barranca Tecoani to establish a community center, which constitutes a center for women, in which educational activities on human rights and women’s rights are carried out. Adopt measures so that the girls of the community of Barranca Tecoani who are currently conducting secondary studies in the city of Ayutla de los Libres, have adequate accommodation and food facilities, so that they can continue to receive education in the institutions to which they attend. Notwithstanding the foregoing, this measure may be complied with by the State by opting for the installation of a secondary school in the aforementioned community. Ensure that care services for women victims of sexual violence are provided by the institutions indicated by Mexico, among others, the Public Ministry in Ayutla de los Libres, through the provision of material and personal resources, whose activities shall be strengthened through training actions.

The NGO CEJIL offered a commentary on the state’s compliance report, which focuses on the promotion of a culture of gendered peace through education:68 Along the same lines, the State simply omits referring to some points. For example, it does not mention anything regarding awareness raising and awareness campaigns about the prohibition and effects of violence and discrimination against indigenous women; the investigation of officials of the Public Prosecutor’s Office that hindered

67 An overview of remaining non-repetition guarantees to be complied with is available at: https://​www​.corteidh​.or​.cr/​docs/​supervisiones/​SCS/​mexico/​fernandez/​ fernandezp​.pdf (accessed 10 October 2020). 68 CEJIL, Observations to the State’s Compliance Report, Supervision of Compliance with Judgments, CDH-12.580/358 y 12.579/348 (24 October 2019) Case of Rosendo Cantú and others v. México and Case of Fernández Ortega and others v. México.

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the investigations was carried out. Nor has it mentioned the establishment of the community center and the measures in favor of access to education for girls in the community of Barranca Tecoani, ordered in the Fernández Ortega case ... We respectfully request the Honorable Court to urge the Mexican State to fully comply with these points, and that in its future reports mention only courses and trainings given in the last period and on the specific issue of care for women victims of sexual violence, providing specific elements on the content (descriptive letter) and scope (number and type of officials) thereof.

The Mexican state alleged that it had indeed complied with the order:69 Regarding the ninth decision of the sentence, the Mexican State is allowed to inform that the National Institute of Women (INMUJERES), in collaboration with the Supreme Court of Justice of the Nation (SCJN) delivered the online courses “Human rights and control of conventionality” and “Strengthening of the delivery of justice with a gender and intercultural perspective.” The course “Human rights and control of conventionality” had four openings, while the “Strengthening of the delivery of justice with a gender and intercultural perspective” had three openings. With these courses 1,862 and 948 people were trained respectively. INMUJERES makes available the following courses in order to raise awareness and train the staff of the Executive Branch and Judicial Branch: • Course of induction to equality for women and men. • MOOC Zero tolerance to sexual harassment and sexual harassment. Meet and Protocol for the APF [Administración Pública Federal – Public Federal Administration]. Prepare for Certification in Harassment Care and Sexual Harassment. Course for Counselors. INMUJERES has shared with the Attorney General of the Republic materials on protocols of feminicide violence and sexual violence to be used in the respective training of the staff of said unit. As mentioned in previous reports, the National Commission to Prevent and Eradicate Violence Against Women has launched since 2010, the Justice Centers for Women, whose objective is to respond to the obligations regarding care and prevention of violence against women. The justice centers are the result of efforts among the various authorities of the Mexican State and civil society organizations providing: medical, psychological and legal care; transit houses; playrooms with experts/entities of child development, and workshops on social and economic empowerment. Currently, there are 39 centers in operation in 27 states.

According to the Mexican state, the problems are not due to a lack of political will by the state; one may infer that the society requires a long-term cultural shift towards gendered peace. However, in 2020, tens of thousands of Mexican

69 Mexico’s Report on Compliance is available at: https://​www​.corteidh​.or​.cr/​docs/​ supervisiones/​escritos/​fernandez​_ortega​_y​_otros​_vs​_meyico/​Obs​_Edo​_29​_11​_2019​ .pdf (accessed 10 October 2020).

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women went on strike to protest both state inaction and the maintenance of a culture which permits violence against women.70 7.5.5

Rosendo Cantú and Another v. Mexico (2010)

This case involved the rape and beating of an indigenous girl by the military. The Inter-American Court of Human Rights held Mexico responsible for rape as torture and failure to fulfill the due diligence obligation to investigate and prosecute the crime, noting inter-sectoral discrimination, as well as failure to provide reparation to the victim. The Court indicated appreciation for the existence of various actions and training courses developed by the state. In this regard, the state was instructed to place emphasis on the care of alleged victims of rape, especially when they belong to groups in situations of greater vulnerability such as indigenous women and children and to continue training:71 As it has done previously, the Court orders the State to continue implementing continuous training programs and courses on the diligent investigation of cases of sexual abuse against women, which include a gender and ethnicity perspective. These courses must be offered to federal level officials and officials in the state of Guerrero, particularly to those in the Public Prosecutor’s Office, the judicial branch, the police force and health workers with competence in these types of cases, who because of their functions constitute the first line of response to women victims of violence.

The Court called for compliance with the non-repetition orders:72 Continue to implement programs and ongoing training courses on diligent investigation in cases of sexual violence against women, which include a gender and ethnicity perspective, which should be given to federal and Guerrero state officials. Continue with the actions carried out in the field of human rights training of members of the armed forces, and must implement, within a reasonable period of time, a permanent and mandatory program or course of training and training in human rights, aimed at members of the Armed Forces. Ensure that care services for women victims of sexual violence are provided by the institutions indicated by Mexico, among others, the Public Ministry in Ayutla de los Libres, through the provision of material and personal resources, whose activities shall be strengthened through training actions, in accordance with the provisions of

70 Paulina Villegas, “In Mexico, Women go on strike Nation-Wide to Protest Violence”, The New York Times (9 March 2020). 71 I/A Court H.R., Case of Rosendo Cantú et al. v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of August 31, 2010. Series C No. 216, paras. 246 and 249. 72 Repeated in the Compliance Supervision order of 12 March 2020, http://​www​ .corteidh​.or​.cr/​docs/​supervisiones/​rosendo​_12​_03​_20​.pdf (accessed 13 July 2020).

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paragraph 263 of this Judgment. Continue to promote the awareness and awareness campaigns of the general population about the prohibition and effects of violence and discrimination against indigenous women.

The NGO CEJIL commented on the state’s compliance report in a manner similar to its comments on previous cases:73 For example, regarding the training offered to public officials and armed forces, what is presented is repetitive and outdated; and in the case of the standardization of protocols, it does not provide more substance that would allow evaluation of its correct application. Along the same line, the State simply omits referring to some points. For example, it does not mention anything regarding awareness raising and awareness campaigns about the prohibition and effects of violence and discrimination against indigenous women; or the investigation of the Public Prosecutor’s officials that hindered the investigations. Nor does it discuss the establishment of the community center and the measures in favor of access to education for girls in the community of Barranca Tecoani, as ordered in the Fernández Ortega case.

The Mexican state alleged compliance, reiterating similar information to its replies to other cases:74 The Federal Judiciary Council, through the Federal Judiciary Institute, held a workshop on “Strengthening the Delivery of Justice with a Gender and Intercultural Perspective” in conjunction with the National Women’s Institute (INMUJERES). It was held at the Judicial School of the Federal Judiciary Institute, which has registered 1,862 people trained in four openings. In addition, the course entitled “Human Rights and Conventional Control” registered 948 people trained in three openings. Also, on October 19 and 20, as well as November 29 and 30, 2018, the workshop “Criminal Defense with a Gender Perspective” was again held, thus training 2,192 servants and public servants, fulfilling the objective of training and sensitizing defenders, public advisors of the Federal Judicial Power on the importance of integrating the gender perspective in institutional development and in the performance of the jurisdictional defense.

73 Submission by CEJIL to the Inter-American Court of Human Rights on 24 October 2019, http://​www​.corteidh​.or​.cr/​docs/​supervisiones/​escritos/​rosendo​_canty​_y​ _otra​_vs​_meyico/​Obs​_Rep​_24​_10​_2019​_​.pdf (accessed 13 July 2020). 74 Mexico’s Report on Compliance is available at: https://​www​.corteidh​.or​.cr/​docs/​ supervisiones/​escritos/​rosendo​_canty​_y​_otra​_vs​_meyico/​Obs​_Edo​_04​_12​_2019​.pdf (accessed 10 October 2020).

Towards a sustainable gendered peace

Source:

Santiago Arau

Figure 7.1

7.5.6

209

The photo depicts the “peace wall” erected by the Mexican government to protect the National Palace from women protesting the lack of accountability for femicide. The women painted the names of the victims on the wall

Women Victims of Sexual Torture in Atenco v. Mexico (2018)

This case involved the sexual torture of 11 women by Mexican police in 2006. The Inter-American Court of Human Rights called for gender training of police:75 ... It is pertinent to order the State to create and implement, within two years, a training plan for Federal Police officers and the State of Mexico aimed at: raising awareness among members of the police in addressing with gender perspective police operations, the discriminatory nature of gender stereotypes as employees in this case and the absolute duty of respect and protection of the civilian population with whom they come into contact in the framework of their work. This training plan must be incorporated into the regular training course for members of the federal and state police force.

75 I/A Court H.R., Case of Women Victims of Sexual Torture in Atenco v. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 28, 2018. Series C No. 371, para. 355.

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In 2019, it reiterated the order on account of non-compliance:76 The State must, within two years, create a training plan for Federal Police officers and the State of Mexico, and establish a monitoring and inspection mechanism to measure and evaluate the effectiveness of existing policies and institutions in terms of accountability and monitoring of the use of force by the Federal Police and the police of the State of Mexico.77

It may be argued that in spite of the fact that these gendered peace non-repetition guarantees appear to meet a lack of political will within the state and/or society for implementation, they are oriented around the protection paradigm of women and hence do not provoke conservative NGOs since they do not address the autonomy paradigm linked to more controversial cases involving sexual reproductive rights. Nevertheless, the Court has experienced pressure to be effective in terms of state compliance, hence it has reduced the number of non-repetition orders as these require long-term implementation.78 There is a risk that the reduction of non-repetition orders may reduce the Court’s ability to promote a sustainable culture of gendered peace.

76 I/A Court H.R., Case of Women Victims of Sexual Torture in Atenco v. Mexico. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of October 7, 2019. 77 The statement of remaining non-repetition guarantees to be complied with is available at: https://​www​.corteidh​.or​.cr/​docs/​supervisiones/​SCS/​mexico/​mujeresatenco/​ mujeresatencop​.pdf (accessed 10 October 2020). 78 This is similar to the case of Lopez Soto v. Venezuela (2018). This case involved the horrific kidnapping of a woman by a man who subjected her to sexual violence and torture for four months, where the police failed to investigate her abduction effectively. The Court ordered the state to adopt regulations implementing the Organic Law on The Right of Women to Live a Life Free from Violence and to make operative tribunals on violence against women throughout the country as well as justice and health personnel training on due diligence protection (including the Istanbul Protocol and the UN Manual on Prevention of Extrajudicial Executions, including a gender perspective on women’s rights, deconstruction of stereotypes) within the institutions which are mandated to receive complaints on violence against women. The Court set forth that medical professionals should receive permanent training on the treatment of women who are victims of violence. The state was ordered to create a database on gender-based violence that implementation of the orders was subject to a deadline of two years with reporting after three years. These orders remain outstanding.

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CONCLUSION: TOWARDS A GENDERED PEACE WITHIN LATIN AMERICA – MOVING BEYOND POLARIZATION

It is suggested that sustainable gendered peace is context dependent, affected by the level of structural violence, inequality in access to education, healthcare, discrimination in participation in civic life, and lack of social justice in society. The aim of sustainable gendered peace requires processes that build trust within society and between the state and society. Silva de Alwis, Mnasriaa, and Wardaa note: “Context will inevitably shape and diversify women’s views of what warrants constitutional protection and whether international human rights standards comport with local belief systems or cultural practices.”79 They warn of women’s participation as being affected by a “complex set of interactions influenced by stakeholders with varying and sometimes conflicting socio-political objectives.” Additionally, they implicitly invoke peace theory when discussing gender participation in constitutional transformation: Women’s engagement should be premised on a dialogic, human rights, analytical framework. While the primacy of rights must guide constitutional change, international human rights must be premised on an ongoing discourse that calls for simultaneous internal and cross-cultural dialogue involving a plurality of voices, including the equal representation of women. The emphasis here is on “ongoing.” Constitutional guarantees are not guarantees until they are enforced without bias or exception. Participation in constitution-drafting projects should not end with the final text but must continue with the formation of institutions that reflect and maintain the constitution’s blueprint for nation building.

The challenge for the region is the systematic pursuit of a culture of gendered peace through education, to be pursued at all levels from school to state officials. As the war of amicus briefs at the Inter-American Court of Human Rights has revealed, the battle for hearts and minds reflects polarization within the region, and there may be a need for strengthening consensus language within the jurisprudence.80 Because the current President of the Court is from Costa Rica, she is very aware of the cost of politicization of the Court. The 79 Rangita de Silva de Alwis, Anware Mnasriaa and Estee Wardaaa, “Women and the Making of the Tunisian Constitution” 90 Berkeley Journal of International Law (2017) p. 1756. 80 See partially dissenting vote of Judge Manrique: It is important to consider that the Tribunal’s legitimacy is based on the soundness of its reasoning and its adherence to the law and the prudence of its decisions. It also does so by consensus of its members. The simultaneity thesis – proposed in this vote – would have been a way to achieve greater argumentative solidity in the case, as well as a consensus among the judges of the Court.

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Inter-American Court of Human Rights should reconsider its reduction of non-repetition orders, as it is hoped the Court will recognize this to be a valuable tool in shaping a culture of sustainable gendered peace within the region. President Odio Benito is pursuing protection of women’s rights in cases involving the due diligence obligation of prevention of sexual violence against young women and girls, such as in the Case of Guzman Abaracin v. Ecuador (2020) involving the sexual abuse of a teenage girl by the Vice-Rector of the state-run school she attended, resulting in her suicide. The Court held that the state had failed to uphold its due diligence obligation to investigate and prosecute violators in accordance with both the American Convention on Human Rights and the Convention of Belém dó Pará. The Court is at the time of writing considering a Request by the Inter-American Commission on Human Rights for an Advisory Opinion on trade union rights, gender violence, and discrimination.81 Both cases are unlikely to cause polarization of the Court within the region because they address the traditional protection paradigm.82 In contrast, the Case of Azul Rojas Marin and others v. Peru (2020) is very likely to meet resistance.83 This case involved the arbitrary detention, physical assault, torture, and rape of Azul Rojas Marin, a transgender person, by the police in 2008. The Court stated:84 The Inter-American Court has recognized that LGBTI people have historically been victims of structural discrimination, stigmatization, and different forms of violence and violations of their fundamental rights. In this regard, it has established that the sexual orientation, gender identity or gender expression of a person are categories protected by the Convention. Consequently, the State cannot act against a person based on their sexual orientation, their gender identity and/or their gender expression ... the Court has indicated that the use of violence for discriminatory reasons I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Merits, Reparations and Costs. Judgment of February 6, 2020. Series C No. 400, partially dissenting vote of Judge Manrique, para. 16. 81 Inter-American Commission of Human Rights, Request for an Advisory Opinion on the scope of state obligations under the Inter-American System with regard to the guarantee of trade union freedom, its relationship to other rights, and its application from a gender perspective (31 July 2019), https://​www​.corteidh​.or​.cr/​docs/​solicitudoc/​ soc​_3​_2019​_ing​.pdf (accessed 11 February 2021). 82 I/A Court H.R., Case of Guzmán Albarracín et al. v. Ecuador. Merits, Reparations and Costs. Judgment of June 24, 2020. Series C No. 405. 83 I/A Court H.R., Case of Azul Rojas Marín et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of March 12, 2020. Series C No. 402, see paras. 242–255 delineating the non-repetition orders. Jorge Contesse calls for reform of the compliance mechanism to include civil society actors to help review: Jorge Contesse, “Resisting the Inter-American Human Rights System” 44 Yale Journal of International Law (2019) p. 179. 84 Case of Azul Rojas Marín et al. v. Peru, paras. 90–93.

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has the purpose or effect of preventing or annulling the recognition, enjoyment or exercise of the fundamental human rights and freedoms of the person who is the object of the discrimination, regardless of whether that person identifies themselves with a determined category.

It called upon the state to establish training of state officials, public and private health personnel, judicial actors, the army, and the police in protection of LGBTI persons, including instruction on non-discrimination and stereotyping in receiving, processing, and investigating complaints. The Court also called for the adoption of a protocol on the investigation and administration of justice in cases of violations against LGBTI persons. The Court also ordered the state to implement within one year a system to compile data on violence against LGBTI people, also using inter-sectoral analysis while eliminating the indicator of “eradication of homosexuals and transvestites” from Peru’s district and regional Public Security Plans. The state was ordered to submit a compliance report within three years of the judgment. Hence, the Court may find itself both promoting sustainable gendered positive peace and facing political repercussions for its liberal orientation in the near future.

8. Conclusion: reflections on the construction of a pro homine customary peace Within Latin America, peace is considered to be an aim carrying obligations with external characteristics pertaining to respect for sovereignty, non-intervention, use of pacific dispute resolution mechanisms (including international courts), as well as internal characteristics related to the realization of equality and non-discrimination, social justice, and the pursuit of a culture of peace education within society. It would appear that the multiplicity of normative iterations of peace confirm its Gründnorm status. It ranges from being a facilitative norm with moral considerations (as negative peace), which encourages states to resolve disputes in a non-violent manner in order to uphold peaceful coexistence, to a moral norm (positive peace), which calls for social justice, equality, non-discrimination and the elimination of structural violence.1 Thus implementation of peace varies according to context and scale; it is a versatile norm that is both a means and an end that may be implemented by choice of procedures and by application of substantive policies. It is not that violation of peace does not have a remedy; it is that the remedy should be flexible according to the concrete case. There is a regional imperative to strengthen positive peace at a time in which inter-state violence is diminished but intra-state violence is significant. The fact that the current indicators of positive peace and democracy confirm a downward trend underscores the importance of the Inter-American Court of Human Rights in providing responsive jurisprudence, delineating the scope of a pro homine positive peace based on equality and non-discrimination within the region and thereby serving as a norm entrepreneur for other regions and universal entities.2 1 See Anthea Elizabeth Roberts, “Traditional and Modern Approaches to Customary International Law: A Reconciliation” 95 The American Journal of International Law (2001) p. 757. 2 The Global Peace Index 2020 sets forth: “South America and Central America and the Caribbean recorded the largest and second largest deterioration on the 2020 GPI. While South America’s average deterioration in peacefulness was driven by deteriorations on Militarisation and Safety and Security, the fall in peacefulness in Central

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In terms of justiciability, there are multiple paths that may be taken. First, violation of positive peace would be tied to an analysis of violation of non-discrimination and equality according to the American Convention on Human Rights. Hence, it would be necessary to examine whether the measure is reasonable and has an objective, legitimate purpose, as well as analyzing the proportionality of measure in relation to aim. Alternatively, peace may be linked to another substantive right within the American Convention on Human Rights (e.g. right to life). Second, peace may be justiciable within national law as a right or obligation. Finally, peace is linked to social security, social justice, and education in the OAS Charter (peace education is also within the San Salvador Protocol), hence this can also form a possible basis for justiciability via Article 26 of the American Convention on Human Rights. Indirect justiciability may be possible by way of Article 29. The Inter-American Court of Human Rights may be able to develop the framework of sustainable peace within the context of the triad of human rights, democracy, and development, providing jurisprudence on freedom of expression and related rights as well as non-discrimination and social justice. Through its use of provisional measures to respond to oppressive peace actions and non-repetition orders to create positive peace structures, the Court demonstrates that it is an important institution for consolidating sustainable peace within the region as it indicates which state institutions require reform/training in order to tackle structural equality and non-discrimination challenges related to positive peace by underscoring accountability. At a time of polarization and increased violence within the region, the articulation of peace as a value may provide a way forward for the Court and the pluralistic societies which it seeks to protect.3 It may be suggested that peace as a value may serve as a bridge between liberal and conservative civil society and state actors as it is central to both secular and faith-based institu-

America and the Caribbean was driven by changes in Ongoing Conflicts.” Institute for Economics & Peace, Global Peace Index 2020, http://​visionofhumanity​.org/​app/​ uploads/​2020/​06/​GPI​_2020​_web​.pdf (accessed 17 July 2020). 3 An important framework to explore is the UN High Commissioner for Human Rights initiative “Faith for Rights,” which seeks to explore how faith-based actors can support human rights in order to create more peaceful societies which uphold human dignity, equality, tolerance, and mutual respect. This initiative published the Beirut Declaration “Faith for Rights,” which underscored how religion seeks to protect the right to life, freedom of thought, conscience, religion, and expression, freedom from want and fear (contained in the Declaration on the Right to Peace), freedom from violence, and protection of human dignity. The Beirut Declaration calls upon religious actors to combat violence, discrimination, and religious hatred. UN Office of the High Commissioner for Human Rights, Faith for Rights (May 2020), https://​www​.ohchr​.org/​ Documents/​Press/​Faith4Rights​.pdf (accessed 13 July 2020).

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tions. Because many of the cases deal with split communities, e.g. indigenous v. non-indigenous and secular v. religious, there may be an added value for the Court to expand its role in peacebuilding and help create bridges between communities. The Court may be able to delineate the balance between the use of peace as a control mechanism by the state and the use of peace by society as a mechanism of emancipation and participation. Above all, the added value of including a peace analysis is that it can strengthen mutual respect, reconciliation, and cooperation by looking beyond violation of rights in highly polarized societies to promote harmonization. It may be possible to further culture of peace initiatives, recognizing the heritage of peace-related initiatives within the region and vision of future integration. The response to the current backlash against human rights, regression of human rights protection and democracy, and diminished social trust and trust in state institutions requires strategic engagement by the Court as well as NGOs to develop a contemporary understanding of the function of human rights in relation to sustainable peace and its eventual crystallization as a customary norm as part of a new epoch in the normative evolution of international law. The construction of a customary law of peace appears to be advancing within the region and recognition of its multifaceted forms provides evidence of pluralistic normative evolution in pursuit of prevention of violence to provide hope of realization of the aspiration of sustainable regional peace.4

4 See UN Secretary-General, “Report on the Responsibility to Protect: Lessons on Prevention”, A/73/898–S/2019/463 (10 June 2019).

Index absence of violence 1, 4, 131 abuse of power 9 abuses against the rule of law 103 access to justice 13, 16, 133, 138, 157, 160, 164 to assert their rights 14 denial of 140 for non-violent dispute resolution 178 sustainable peace-effective institutions providing 120 for women 173, 204 Acosta, Felicitas 110 Acosta Martinéz and Others v. Argentina (2020) 158 adequate food and water, right to 145, 154 ADF International 191, 197–8 administration of justice 155 in cases of violations against LGBTI persons 213 Latin American system for 14 African Charter on Human and Peoples’ Rights 18 African Commission on Human Rights 18 African Court, Malabo Protocol for 19 African Protocol Malabo Protocol 19 on the rights of women 18 Africa Union Constitutive Act of 17 normative commitment to peace 17–19 objective of 17 on peaceful dispute resolution 17 on right to live in peace 18 peaceful coexistence 17

Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (2013) 151 Agenda 2030 13 aggression, crime of 20 aggressor, concept of 33 Aldana, Thelma 100 Alliance Defense Fund (ADF) 180 alternative dispute resolution (ADR) in Dominican Republic 114 in labor disputes 15, 83, 113–15 American community of Nations 35 American Convention on Human Rights (ACHR) 3, 45, 55, 127, 150, 183, 191 Additional Protocol to 141 Article 1 of 158 Article 2 of 81 Article 13 of 57, 59–60 Article 15 of 132 Article 17 of 189 Article 21 of 132 Article 23 of 9 Article 24 of 152, 187–8 Article 26 of 141, 143 Article 29 of 134–5, 149, 171 Article 32 of 133 effectiveness of 8 framing peace according to 132–5 legality of the restrictions on freedom of expression 57 orientation of 50 Protocol of Buenos Aires 141 San Salvador 121, 141–5 on restrictions regarding interpretation 134–5 on rights of the family 189 on right to participate in government 9 signing of 119 217

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Venezuela withdrawal from 55, 106 American Declaration of Human Rights 45, 106, 132 American Declaration of the Rights and Duties of Man 135, 142 American Imperialism 67 American International Law, principle of 34, 41 American regional community 36 American solidarity, principle of 25, 29–35, 34 American Treaty on Pacific Settlement (1948) see Pact of Bogotá (1948) amnesty delimitation of conflict between values 103 criteria of 103 in Venezuela 103 laws and legislations 105, 137, 164 prohibition of 124 Amnesty International 5 Anderson, Kevin 27 anti-communist repression 84 anti-conventional laws, enforcement of 169 Anti-War Pact (1922) 30 Anti-War Treaty of Non-Aggression and Conciliation (1933) 23–5 arbitration principle of 27 validity as an effective peaceful dispute resolution mechanism 28 Argentina Acosta Martinéz and Others v. Argentina (2020) 158 Constitution of 176 counter-terrorist operations 53 dialogue between the Creole and indigenous communities 167–8 Femicide Act 182 gender-based violence and sexual harassment 179 International Women’s Strike on Women’s Day 179 Kimmel v. Argentina (2008) 53 Lhaka Honhat v. Argentina 141–2, 144–5, 152, 166 military dictatorship in 52

Ni Una Menos march (2015) 179 Operation Condor 52 Plaza de Mayo 52 preserving of domestic peace in 51 regulation of political parties 176 San Patricio massacre 53 social order and the risk of oppressive peace 51–3 state control of societal action 52 vulnerable rural settlers 168 Arías, Óscar 93 Arria Formula meeting (2017) 55 Artavia Murillo v. Costa Rica 183–6 assembly, right of 57 condition of enjoyment of 60 in Panama 66 association, freedom of Cantoral Huamaní and García-Santa Cruz v. Peru (2007) 58 violation of 58 asylum, right to 99 Atala Riffo and Daughters v. Chile 202 austerity measures 53 autonomy, right of 88 Azul Rojas Marin and others v. Peru (2020) 212 Barbados Constitution of 79 peaceful relations with foreign states 79 Barrios Altos v. Peru (2001) 124 Beltranena, Fernando Linares 100 Biaberi Duarte and others v. Uruguay (2011) 67 Bolivar, Simón 118 Bolivia Constitution of 78, 83 on duty to defend, promote, and contribute to the right to peace 83 I.V. v. Bolivia 201–2 justiciability of peace, as a right and/ or duty 98–9 on non-violent dispute resolution 78 peace agreement with Paraguay 78 Peoples’ Assembly 98 principle of peaceful resolution of conflicts 78

Index

prohibition on the installation of foreign military bases 99 self-defense, right of 99 truth commission to investigate the human rights violations 98 US-backed coup d’etat against its left-wing government 98 Bonet, Torres 41 Boulding, Kenneth 139, 147 Boundary Treaty (1874), between Chile and Bolivia 21 Brazil Constitution of 64, 78 Hacienda Brasil Verde Workers v. Brazil (2016) 140 preamble on peaceful solution of disputes 78 protests against the government’s cuts to university funding 64 protests in favor of positive peace-related rights 64 rights of Afro-Brazilian 64 Xucuru indigenous people 64 Calvo Clause 38 Cançado Trindade, Antonio 119, 121, 123, 136 Cantoral Huamaní and García-Santa Cruz v. Peru (2007) 58 Cardenal, Rodolfo 138, 160 Caribbean Community (CARICOM) 46, 71 Cartes, Horacio 72 case law, regional 175 caudillismo 118 Center for Family Human Rights 180 Central American Esquipulas Peace Accords 93 Chaco War (1932–1935) 1, 20–23 causes of 21 losses suffered by Bolivia and Paraguay 21 peace agreement between Bolivia and Paraguay after 21, 23 resolution of 21 change of name right to 195 state obligations concerning 190–200 Chapultepec Peace Accords (1992) 65

219

Charter of the United Nations see UN Charter Charter on Fundamental Rights of the European Union 17 Chavez, Hugo 45, 54 chemical weapons, prohibition on storage and use of 98 Chetman, Alejandro 76 Chevron Oil Company 81 child labor 114 Chile Atala Riffo and Daughters v. Chile 202 Chile v. Bolivia 39 Constitution of 61 Article 16 114 Norín Catrimán and others v. Chile (2014) 151 Poblete Vilches and others v. Chile (2018) 146 privatization of education in 62 protest marches in Chilean Winter marches 61 March of the Penguins (2006) 61 by pensioners 61 protests in favor of positive peace-related rights 61–2 resistance to a tax imposed by Bolivia 21 right to assemble peacefully 61 settlement of border dispute with Peru 43 state intervention in education 62 state of emergency 62 Terrorism Law 152 Clarke, Kamari M. 19 Coexistence Codes 112 collective bargaining 114 collective conscience 105 collective self-defense 37–8 Colombia 165 acción popular 84 Afro-descendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (2013) 151 Charter on Constitution for peace 89 Constitutional Court of 85–6, 126

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Constitution of 60, 83, 84, 113, 126 domestic laws regulating de facto marital unions 188 Duque v. Colombia 187–90 history of internal violence 84 justiciability of peace, as a right and/ or duty 84–92 militarization of the border 80–81 Mobile Anti-Disturbance Squad 61 National Constituent Assembly 88 National Liberation Army (ELN) 84 Peace Accords 88, 92, 126, 180 “Peace and Justice” strikes (2019) 60 Peace Constitution (1991) 84 Peace Tribunal 126 peaceful coexistence and peace to the citizenry 84 period of La Violencia 84 principle of non-intervention in internal affairs of other states 90 protests in favor of positive peace-related rights 60–61 raid in Ecuador (2008) 37 referendum of the first Peace Agreement 180 Revolutionary Armed Forces of Colombia (FARC) 15, 37, 80–81, 84, 92 on right to autonomy 88 peace 84–6, 89 same-sex couples, pension rights of 187 Special Jurisdiction for Peace 92 colonization, legacy of 118 Committee on Economic, Social, and Cultural Rights 190 common responsibilities, cosmopolitan vision of 133 Community of Caribbean and Latin American States (CELAC) 46 condemnation of wars of aggression, principle of 42, 50 conflict transformation, human rights perspective in 161 Constitutional Court of Colombia 40 constitutional jurisprudence 89, 91

conventionality control doctrine 93, 148, 168–71 Convention of Belém do Pará (1994) 176–9 corruption 16 defined 68 and human rights violations 68 Costa Rica abolition of the Army in 119 Artavia Murillo v. Costa Rica 183–6 Board of the Legislative Assembly 95 case against the government for its support to Iraq War 93–5 Central American Esquipulas Peace Accords 93 citizenship to the African-descent communities 119 claim regarding violation of the right to peace 93 Constitution of 74 Article 12 of 92 defense against external aggressions 95 economic impact of corruption in 74 El Cementazo case 74 fundamental values of 96 justiciability of peace, as a right and/ or duty 92–8 “LGBTQ” order 185 Neutrality Duties 94 private and public hearings 158 Proclamation on Perpetual, Active, and Unarmed Neutrality (1983) 94 protests to call for regime change 74 Protocol on the prohibition of the use of asphyxiating toxic gases 95 bacteriological means in war 95 reactions within society against Nicaraguan migrants 74 right to vote 119 scope of the rights to privacy 190 seating the Inter-American Court of Human Rights in 119–20 Social State of Law 96 Supreme Court of 93, 185

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Index

In Vitro Fertilization (IVF) treatment, legalization of 183–6 counter-terrorist operations 53, 164 Covenant on Economic, Social, and Cultural Rights 142, 190 COVID 19 pandemic 127–8 risk of domestic violence during 181 crimes against humanity 55, 99, 106 Cuartas, José Fernando Reyes 88 Cuba Anti-war Treaty 23 asylum for persons persecuted on account of their fight for peace 79 Constitution of 78 negative peace 50 Rio Treaty 37 US military intervention in 26 Cuerpo de Seguridad y Orden Público del Estado Aragua (CSOPEA) 102 cultural identity, rights to 111, 144–5, 154 cultural violence 161 defined 109 culture of peace 107–15 alternative dispute resolution of labor disputes 113–15 based on resilience, solidarity, and social cohesion 110–11 in Dominican Republic 112 education 110–13 educational and dispute resolution programs 115 education initiatives 113 legal aspects of promoting 113 and peace law 107 Peru Law No. 30810 and Law No. 28044 on 112 policies for 112 problems in implementing 112 recognition of 115 and socio-economic development 112 teaching of Peruvian educational system of 112 customary international law 19, 78, 186 customary law of peace construction of 1

evolution of 161 sustainable gendered 172 cyberwar 79 de Assis Machado, Marta Rodriguez 182 decision-making 178 Declaration of Lima (1938) 35–6 Declaration of Managua for the Promotion of Democracy and Development 44 Declaration of Principles for Inter-American Solidarity and Cooperation (1936) 25, 29–35 Declaration on the Right to Peace (2016) 10–13, 45, 121, 135, 176 de lege ferenda 3, 161 democracy, Inter-American values of 149 democratic constitutional order, restoration of 37 democratic society fair demands of 57 free of corruption 111 denial of justice 30 de Paz González, Isaac 149, 169–70 deployment of armies, to resolve conflicts 27 DESCA rights, justiciability of 144 de Viana Bandeira, Ana Luiza Villela 182 Díaz, Carlos Gaviria 88 Diaz Lorteo and Others v. Venezuela (2019) 102 Direccion Laboral 114 Dirty War, human rights violations of 53 Dismissed Employees of Petroperú and others v. Peru (2017) 148 displacement of communities, selection of cases addressing 150 disproportionate aggressive mechanisms, non-use of 97 dispute resolution 4 legal mechanisms for 38 see also pacific settlement of disputes domestic public law, transnational interaction of 164 domestic violence 160, 179, 181 Maria de Penha Law on 182 risk during the COVID pandemic 181

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shelter against 183 strategic mobilization around 182 Dominican Republic constitutional reference to a culture of peace 112 Constitution of 114 Expelled Dominicans and Haitians v. Dominican Republic (2014) 156 Green March against Impunity 165 Haitian community in 155 Nadege Dorzema et al. v. Dominican Republic (2012) 155 regulation on ADR in 115 university and schools promoting art centers 112 Youth Conferences to promote pacific dispute resolution mechanisms 165 Doyle, Michael 113 Drago Doctrine 27, 30 Drago, Luis María 26 due diligence 102, 107, 140, 173, 179, 203, 207, 212 due process 155 observance of 156 process of 104 rights of 9, 157 Duque v. Colombia 187–90 economic justice 19 economic, social, and cultural rights (ESCRs) approach to addressing structural violence 137–44 caveat regarding the second- and third-generation rights 144–50 implications for the justiciability of peace 137–50 justiciability of 137–50 Ecuador Constitution of 81, 83 Constitutional Court of 81 on establishment of foreign military bases 81 Gonzales Lluy et al. v. Ecuador (2015) 147

Guzman Abaracin v. Ecuador (2020) 212 Kichwa Indigenous People of Sarayaku v. Ecuador (2012) 81 right of indigenous people in relation to their enjoyment of territory 81 education privatization of 68 right to 44 effet utile, principle of 129 Eighth International Conference of American States (1938) 35 Eisenhower, President 32 Ejército de Liberación Nacional (ELN) see National Liberation Army (ELN), Colombia El Salvador 162 amnesty law 164 Case of the Massacre of El Mozote v. El Salvador (2012) 65, 124 Chapultepec Peace Accords (1992) 65 civil war between 1980 and 1992 65 Constitution of 65 Farabundo Martí National Liberation Front (FMLN) 65 gang violence, problem of 65 Law of General Amnesty for the Consolidation of Peace 65 national legal system 65 protest march organized by the University of El Salvador 65 protests against the government’s cuts to university funding 65–6 right of peaceful assembly 65 scorched-earth policy of massacre of peasants 65 state security actors against criminal gangs 65 use of repressive tactics 65 embargo legality of the use of 18 in response to a military coup 18 encomenderos 117–18 encomienda system 118 enforced disappearance, prohibition of 134, 151

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Index

Environmental Law 11, 123 environmental rights 65, 69, 137–50 equal protection denial of 120, 133 judicial guarantees on 133 right to 152, 187 equality and non-discrimination elements of 137 erga omnes duties 137 as jus cogens 136 principle of 9, 136, 155, 158, 187 in relation to human rights 136 positive peace 135–7 violation of 137, 150, 187 equality of states 25 erga omnes, obligation 121, 137 Espiell, Gros 120–21 Esquivel, Adolfo Pérez 2, 52 estoppel of public international law, rule of 94 European Convention for the Protection of Human Rights and Fundamental Freedoms 17 European militarism 29 European Union Charter on Fundamental Rights of 17 common defense to promote peace 17 common foreign and security policy 17 framework for recognition of peace 17 towards a peaceful future 17 Treaty on 17 exceptional due diligence, notion of 140 Expelled Dominicans and Haitians v. Dominican Republic (2014) 156 expression, freedom of 53, 58 legality of the restrictions on 57 protection of 14 repression of 55 right to 138, 160 violation of 53, 59 Palamare-Iribane v. Chile (2005) 59 externally oriented peace 76, 78, 80 extrajudicial executions 54, 57, 102 of opponents 54

ExxonMobil corporation 39 fair dealings, between classes of society 28 fair demands, interpretation of 57 faith-based legal advocacy groups 180 “fake news” campaign 180 Falklands War/Malvinas War (1982) 37, 43 family concept of 196 law 114, 196 rights of 189 “family rights” counter-movements 182 “family values/protection of children” movement 180 favor libertatis, principle of 171 femicides, measures to combat 71, 177, 203 feminism 174 feminist laws and policies, implementation of 201 feminist social mobilization and counter-mobilization 179–82 “family values/protection of children” movement 180 within Latin America 179 sustainable gendered peace and 179–82 Fernández Ortega and Others v. Mexico (2010) 204–7, 208 Ferrer, José Figueres 119 Ferrer Mac-Gregor, Eduardo 2, 5, 127, 129, 137, 139, 140, 144, 160 financial intelligence 37 Fleury and others v. Haiti (2011) 63 food, right to 55 denial of access to 55 food security programs 154 forced disappearances of women, measures to combat 203 foreign military bases establishment of 81 prohibition of 50, 80, 99 formally feminist states, phenomenon of 201 Forum for the Progress and Development of South America (PROSUR) 45–6

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The construction of the customary law of peace

framing of peace, according to ACHR 132–5 freedom of thought and expression, right to 195 Freire, Patricio Pazmiño 131 Fuerzas Armadas Revolucionarias de Colombia (FARC) see Revolutionary Armed Forces of Colombia (FARC) Fujimori, Alberto 70 fundamental rights, violations of 146 Future Policy Award, for sustainable disarmament 80 Gaitán, Jorge 84 Galtung, Johan 109, 120, 139, 140 gang violence, problem of 17, 65 García-Sayán, Diego 123 Gargarella, Roberto 51, 118, 136 Garifuna Triunfo de La Cruz Community and its members v. Honduras (2015) 147 gender-based discrimination 201–2 gender-based violence 174 in Argentina 179 obligations of states regarding protection from 179, 181 prohibition of 176 protection of women against 57 structural approaches to reduce 177 gender equality 108, 174 gender identity 189 Inter-American Court of Human Rights Advisory Opinion on 200 notion of 190 protection of rights relating to 191 state obligations concerning change of 190–200 gender ideology, impact of 175 gender-oriented legislation 175 gender training of police 209 gendered peace 3, 129, 172, 174–5, 178–9, 181–2, 200, 204–6, 210–12 Global Peace Index 16–17, 115 highest five countries 16 reports a regional deterioration of peace 16

Gonzales Lluy et al. v. Ecuador (2015) 147 González and Others (“Campo Cotton”) v. Mexico (2009) 203–4 González-Domínguez, Pablo 168 Good Neighbor Policy 25 Gründnorm of peace 1, 4–5, 15, 49, 53, 122, 214 Guadalupe Hidalgo, Treaty of (1848) 28 Guatemala 162 amnesty to war criminals from the civil war 75 budget cuts affecting COVID health care and education 75 civil war (1960–1996) 99 Constitution of 75, 83, 99 discrimination against indigenous people 99 exclusion of amnesty for international abuses 99 expulsion of the International Commission against Impunity 75 genocide against the Mayan indigenous people 99 justiciability of peace, as a right and/ or duty 99–100 National Reconciliation Law (1996) 99 obligation to guarantee its inhabitants’ peace 99 penal code of 100 protests to call for regime change 75 take on accusations of “victor’s justice” 100 Guatemala/Belize case 39 Guatemalan National Revolutionary Unity 100 gunboat diplomacy 35 Guyana v. Venezuela (1899) 38 Guzman Abaracin v. Ecuador (2020) 212 Haberle, Peter 48 Hacienda Brasil Verde Workers v. Brazil 140 Haiti civic duty to work to maintain peace 83 Constitution of 62, 71, 83 Fleury and others v. Haiti (2011) 63

Index

Haitian National Police 63 human rights abuses 63 mass murders of opponents 62 MINUSTAH (UN Peacekeeping operation) 63 Operation Uphold Democracy (1994) 62 protests due to increase in fuel and food prices 62 protests in favor of positive peace-related rights 62–3 protests to call for regime change 71–2 right of peaceful assembly and association 62, 72 state accountability for human rights violations 63 hard law instrument 20 hate speech 109, 181 healthy environment, right to 144–5, 154 Herz, Monica 43 Honduras Constitution of 73, 78 Article 5 of 101 Article 139 of 114 Article 272 of 101 Garifuna Triunfo de La Cruz Community and its members v. Honduras (2015) 147 human rights training program 102 Kawas Fernández v. Honduras (2009) 101 Law for the Protection of Human Rights Defenders 102 Pacheco Leon and others v. Honduras (2017) 101 Pacheco Teruel and others v. Honduras (2012) 101 peace and human rights in 101–2 national awareness campaign 101 work of defending human rights 102 prison system 101 privatization of education and healthcare 73 protests to call for regime change 73 on right of peaceful assembly 73 self-determination 78

225

societal liberty perspectives 101 Stairs Mejia and others v. Honduras (2018) 102 state prerogative to maintain order 101 violence against human rights 101 workers 115 Hoover, Herbert 21 house raids, legalization of 68 human dignity 156 development of 44 elements of 7 protection of 97 recognition of 97 social compact, principle of 137 value of 136 violation of 85, 96 human personality, development of 44 human rights abuse of 37 condition for the exercise of 7 Constitution of 54 as foundation of democratic coexistence and social peace 102 governance in socio-economic challenges in 164 grounds for limitations to 57 LGBTI rights 182–3, 185, 213 linkage of peace to 164 as a means to attain global peace 7 obligations of IAHRS 15 peace and 7–10, 100–107 protection of 7, 10 provisions contained within national constitutions 159 respect for 44 Ruggie Guiding Principles on Business and Human Rights 166 training program 102 Universal Declaration of Human Rights 7 violation of 7, 16, 53, 56, 68, 123, 138 accountability for 63 in Bolivia 98–9 corruption and 68

226

The construction of the customary law of peace

in Haiti 63 in Honduras 101 positive peace-related 162 risk of 158 severity of 106 state accountability for 63 in Venezuela 54, 102 Human Rights Committee 69, 190 Human Rights Law 11, 97, 123, 169, 170, 196 human rights organization 52 Human Rights Watch 5 human society, integration of 120 humanity, development of 45 humanization of international law 122–3 ideological pluralism 44 ideology of gender, threat of 180 illiberal peace, phenomenon of 53, 162 independence and equality, principles of 104 indigenous communal territories, recognition of 80 indigenous people Creoles community 166 cultural identity of 154 emancipation of 118 Lhaka Honhat community 141–2, 144–5, 152, 166 right of 81, 147, 153 to claim their ancestral or traditional lands 82 to enjoy the right to life 122 in Guatemala 100 social justice and 100 slavery of 118 Indigenous Peoples Kuna de Madungandí and Embera de Bayano v. Panama (2014) 66 Indigenous Xákmok Kásek Community v. Paraguay (2010) 81 Industrial Peace Committee 28 informed consent, issues of 81, 195, 201–2 institutional apartheid 130 institutional injustice 138, 160 institutional racism, phenomenon of 130 institutional silencing 9 Inter-American Commission on Human Rights 15, 60, 180, 199

Advisory Opinion 8 “Silenced Zones: Highly Dangerous Areas for the Exercise of Freedom of Expression” report (2017) 58 on violation of human rights 16 Inter-American Conference in Buenos Aires 29 Inter-American Conference on Human Rights 184 Inter-American Conference on the Maintenance of Peace (1936) 25–36 Declaration of Lima (1938) 35–6 Declaration of Principles for Inter-American Solidarity and Cooperation 29–35 Organization of American States (OAS) 41–5 Pact of Bogotá (1948) 36–41 Rio Treaty (1947) 36–41 Roosevelt Corollary (1904) 26–9 sub-regional organizations 45–7 Inter-American Convention Against Corruption (1996) 44 Inter-American Convention on Prevention of Violence against Women 204 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women see Convention of Belém do Pará (1994) Inter-American Convention to Prevent and Punish Torture 169 Inter-American Court of Human Rights 1, 10, 14–15, 16, 53, 55, 57, 63, 65, 66, 70, 72, 73, 75, 81, 99, 110, 115, 116, 131, 137, 139 40th Anniversary of 2 adoption of the statute of 117–19 La Paz de Ayacucho 118 Nuestra Señora de La Paz 117–18 Advisory Opinion on addressing the responsibility of states 106 Charter of the Organization of American States 55

Index

denunciation of American Convention on Human Rights 55 environment and human rights 134 gender identity 200 migrant children 199 recognizing the right of trade unions 58 agenda related to sustainable peace 15 approach to structural inequality 140 Artavia Murillo v. Costa Rica 183–6 articulation of jus cogens obligations 200 on Colombia’s domestic laws regulating de facto marital unions 188 declaration on the right to peace 121 on establishment of a judicial authority to resolve land disputes 81 on gender training of police 209 guidance on peace and human rights 100–107 jurisdiction of 55 jurisprudence on equality and non-discrimination 2 location of 119 non-compliance with reparations orders related to Atala Riffo and Daughters v. Chile 202 Fernández Ortega and Others v. Mexico (2010) 204–7 González and Others (“Campo Cotton”) v. Mexico (2009) 203–4 I.V. v. Bolivia 201–2 non-repetition guarantees involving women’s rights 200–10 Rosendo Cantú and Another v. Mexico (2010) 207–9 Women Victims of Sexual Torture in Atenco v. Mexico (2018) 209–10 non-repetition guarantees 150 non-repetition orders of 150–59

227

normative instruments and case law 159 on normative scope of peace 120 peacebuilding analysis 166 perspectives from former presidents and current judges of 120–31 on normative scope of peace 120–31 polarization of gender within 182–200 on protection of human rights defenders 71 pursuing sustainable peace through structural equality and non-discrimination 150–59 on pursuit of peace and women’s rights 174 scope of infringement of demands for positive peace 57 seating in Costa Rica 119–20 support to consolidation of peace within the region 161 trends regarding justiciability of socio-economic and cultural rights 137 on types of speech deserving special protection 59–60 on violation of freedom of expression 59 Inter-American Court of Justice 34 Inter-American Democratic Charter 44, 169 Inter-American Human Rights System (IAHRS) human rights obligations 15 impact of 14 unblocking effect of 14 Inter-American law of peace Anti-War Treaty of Non-Aggression and Conciliation 23–5 Chaco War (1932–1935) 1, 20–23 evolution of 19, 20–47 Inter-American Conference on the Maintenance of Peace 25–36 Montevideo Convention on the Rights and Duties of States (1933) 23–5 Inter-American public order 8

228

The construction of the customary law of peace

inter-American solidarity and cooperation, principle of 25, 29, 34, 35–6 Inter-American Treaty for Reciprocal Assistance (1947) 36–41, 37 signatories of 37 Inter-American values, of democracy 149 interconnectedness of rights, theory of 120 interdependence of rights, concept of 140, 142, 143 interdependency of states, principle of 30 internal armed conflict 123 Internal Regulations 112 International American Conference 41 International Centre for Settlement of Investment Disputes Convention (1966) 28–9 International Commission Against Impunity 75, 100 international communist aggression, risk of 37 International Court of Human Rights 154 International Court of Justice (ICJ) 38, 78 jurisdiction of 38, 40 Nicaragua Case (1986) 93 International Covenant on Civil and Political Rights 7, 190 International Covenant on Economic, Social and Cultural Rights (ICESCR) 7, 150 International Criminal Law 11, 123 International Customary Law 186 International Human Rights Law 11, 97, 123, 196 prioritization of 170 International Humanitarian Law 11, 79, 92, 97, 123 international justice, operation of 35 international law based on justice and equity 23 International Law Commission 5 International Law of non-interference, in the internal affairs of the State 186 international law, principles and norms of 35, 78 international legal system, evolution of 122, 152 international morality, notion of 29

international organization (IO) 11, 76, 120, 197 International Women’s Strike on Women’s Day 179 intersectional vulnerability, phenomenon of 140 inter-sectoral discrimination 177, 202, 204, 207 inter-state conflicts 4 inter-state dispute resolution, OAS Peace Fund for 42 inter-state disputes 119 inter-state violence, diminishment of 43 inter-state wars 4, 43 intra-regional divisions, regarding the road to peace 20 intra-regional polarization, impact of 47 In Vitro Fertilization (IVF) treatment, legalization of 183–5 Iraq War (2003) 37, 93–5 Ius Constitutionale Commune en America Latina (ICCAL) 159–68 aims of 164 analysis of transnational interaction of domestic public law 164 concept of 159 foundation of 168 promotion of social inclusion 164 on structural deficiencies and exclusion 163 use of strategic litigation 159 I.V. v. Bolivia 201–2 job promotions 179 job security, right to 145 judicial dialogue, between the regional and national levels 169 judicial guarantee, right to 99, 133, 145, 156 judicial process, abuse of 53, 166 judicial protection, right to 65–7, 99, 145, 155–6 juridical personality, right to 156, 195 jus cogens 106, 121, 158, 189, 198, 200 equality and non-discrimination, principle of 136 jus commune 3, 116, 159 formulation of 5

Index

new normative developments supporting peace Global Peace Index 16–17 peace as a sustainable development goal 13–15 UN Declaration on the Right to Peace (2016) 10–13 peace and human rights 7–10 peace as part of 5–17 UN Charter on 6 jus post bellum 3 justice in Africa, pre-conditions for 19 justiciability of peace 134 approach to addressing structural violence 137–44 implications of economic, social, cultural, and environmental rights on 137–50 as a right and/or duty in Bolivia 98–9 Colombia 84–92 Costa Rica 92–8 Guatemala 99–100 justiciability of rights 141 Justo, Agustin P. 29 Kawas Fernández v. Honduras (2009) 101 Kellogg Briand Pact (1928) 30 Kelsen, Hans 4 Kichwa Indigenous People of Sarayaku v. Ecuador (2012) 81 Kimmel v. Argentina (2008) 53 King, Martin Luther, Jr. 163 labor conflicts 2, 113–14 labor disputes peaceful settlement of 114 use of alternative dispute resolution (ADR) in 15, 83, 113–15 labor law 145 labor negotiation 114 labour rights 136 Lagos Campos v. Peru (2017) 144 Lamas, Carlos Saavedra 20, 23, 24–5, 30 land disputes, selection of cases addressing 150 Landau, David 135 La Paz de Ayacucho 118

229

Laplante, Lisa 124 Latin American constitutions 2, 50–51, 76, 82, 116, 135, 176 Latinobarómetro 16 Law, David 76 Law of Amnesty and National Reconciliation 104–5 Law of General Amnesty for the Consolidation of Peace (El Salvador) 65 Law of the Sea 123 Law on the Culture of Dialogue and Peace (Nicaragua) 57 League of Nations 30 legal insecurity 147 legal order, principle of 2, 4, 76, 87, 93, 97, 123, 125 legal security 146, 168 legal uncertainty 146 legality, principle of 133, 157 Legler, Thomas 37 León, Manelic Vidal 84 Lhaka Honhat v. Argentina 141–2, 144–5, 152, 160, 166 liberal intervention 162 liberal model of peace 162 liberal-statist internal orientations towards peace 50–75 for correcting oppressive peace 57–60 protests in favor of positive peace-related rights Brazil 64 Chile 61–2 Colombia 60–61 El Salvador 65–6 Haiti 62–3 Panama 66–7 Uruguay 67–8 protests to call for regime change or address corruption and impunity 68–9 Costa Rica 74 Guatemala 75 Haiti 71–2 Honduras 73 Mexico 71 Paraguay 72–3 Peru 70

230

The construction of the customary law of peace

as social order and the risk of oppressive peace Argentina 51–3 Nicaragua 56–7 Venezuela 54–6 liberation, sense of 162 life, right to 121, 126, 133, 155 in dignity 141 extension of 122 of unborn children 184 Lima Group 46 Long Peace, The 10 Lopez, Carlos Emilio 56 Luno, Antonio Enrique Pérez 49 Maduro, Nicolás 33, 37, 54–5, 106 Malabo Protocol for the African Court 19 Manrique, Ricardo Pérez 14, 131, 141–2, 200 March of the Penguins (2006) 61 marginalized groups claims of 159 rights of protection of 160 mass migration 17 Massacres of El Mozote and Nearby Places v. El Salvador (2012) 65, 123–4 Matos, Manuel 27 Matsuda, Fernanda Emy 182 Mayer, Frederico 8 Menchú, Rigoberta 2, 100 MERCOSUR (the Southern Common Market) 45–6, 79 Mexico Constitution of 71, 80 externally oriented peace 80 Fernández Ortega and Others v. Mexico (2010) 204–7 González and Others (“Campo Cotton”) v. Mexico (2009) 203–4 legacy of repressing movements 71 Mexican Student Movement (1968) 71 National Autonomous University of Mexico (UNAM) 71 protests to call for regime change 71 Rosendo Cantú and Another v. Mexico (2010) 207–9

Tlatelolco Massacre (1968) 71 on use of nuclear energy for peaceful goals 80 Women Victims of Sexual Torture in Atenco v. Mexico (2018) 209–10 military dictatorship in Argentina 52 community activism against 52 in Paraguay 72 military industrial complex 32 Millan, Franklin Moreno 84 MINUSTAH (UN Peacekeeping operation) 63 mitas 118 Mixed Claims Commission 28 Moise, Jovenel 71 Monroe Doctrine (1823) 26 Montevideo Convention on the Rights and Duties of States (1933) 23–5 Moral, Paulina García-Del 201 Muelles Flores v. Peru (2019) 140 Nadege Dorzema et al. v. Dominican Republic (2012) 155 name, right to a 195 narco-trafficking 80 National Association of Discharged and Retired Employees of the National Tax Administration Superintendence v. Peru (2019) 142 National Liberation Army (ELN), Colombia 84 national security, protection of 60, 89 national sovereignty, violation of 27, 77 naval arms race 40 Nazi Fascism 41 necessity, principle of 133 negative peace implicating order over social justice 163 law of 20, 133 negative hybrid peace 162 New Laws of the Indies 118 Ni una menos 53, 179 Nicaragua Constitution of 56, 80, 108 Contras 56

231

Index

extrajudicial executions, torture, and rape in detention 57 human rights abuses 57 Law on the Culture of Dialogue and Peace 57 Nicaragua Case (1986) 38, 93 occupation by the United States 56 protests against President Daniel Ortega 56 right to peaceful gathering 56 Roche Azaña v. Nicaragua (2020) 157 Sandinista revolution 56 social order and the risk of oppressive peace 56–7 Somoza dictatorship 56 non-aggression and conciliation, anti-war treaty of 23–5 principle of 82 non-continental conflicts 34 non-governmental organizations (NGOs) 5 non-interference 82 in domestic affairs 77 International Law of 186 principle of 46, 77, 82 by the state 12 non-intervention in internal affairs of other states 90 principle of 35, 46 protocol of 36 non-refoulement, principle of 99, 122, 128 nonviolence, principles of 105, 112 Norín Catrimán and others v. Chile (2014) 151 normative scope of peace Inter-American system 121 justiciability of socio-economic and cultural rights 137 perspectives from former presidents and current judges 120–31 pluralistic 120 positions on 121 pro homine 121 role of courts in 120 Nowak, Manfred 13 nuclear disarmament 2, 46 and territorial peace 80–82

nuclear-free zone 80 nuclear weapons acquisition of 80 sub-regional unity to prohibition of 80 use of 79 Nuestra Señora de La Paz 117–18 Obama, Barack 98 obiter dictum 134 obligation of peace, construction of 116, 134 obligation of the state 187, 196 to dismantle structural violence 11 to protect women against domestic violence 181 to provide fair and effective access to justice 157 to provide peace 15 to pursue structural reforms 173 Odio Benito, Elisabeth 3, 125, 127, 129, 173, 175, 181, 200, 212 Operation Condor (Argentina) 52 Operation Uphold Democracy (1994) 62 opinio juris 11, 126 oppressive peace correcting of 57–60 risk of 2, 47, 50 in Argentina 51–3 in Nicaragua 56–7 in Venezuela 54–6 order, concept of 60 Organization of American States (OAS) 1, 3, 25, 76 Charter of 10, 20, 41–4, 45, 55, 93, 97, 106, 121, 140–42, 146, 150 Article 1 of 41 Article 24 of 42 Article 25 of 42 Article 26 of 42 Article 27 of 42 articulation of peace 135 as holistic embodiment of peace 44 on social justice and social security 43 creation of 34, 41 vision for 41 General Assembly of

232

The construction of the customary law of peace

adoption of Statute of the Inter-American Court of Human Rights 117–19 member states of 190, 196–7 order of peace and justice 41–5 Pan American Union 34 Peace Fund 42 penalization of homosexual acts 190 on prosecution of human rights violations 56 Protocol of San Salvador (1999) 44 purpose of 41 Secretariat of 34 organization of power, in Latin America 136 organized crime 37, 71, 138, 160 Ortega, Daniel 40, 56, 204–7, 208 Pacheco Leon and others v. Honduras (2017) 101 Pacheco Teruel and others v. Honduras (2012) 101 pacific settlement of disputes 50 concept of 4 creation of mechanisms for 113 obligation to pursue 6 obligatory sequence for 6 polarization within the region and 46 as preferred alternative to the use of coercion and force 20 principle of 122 UN Charter on 79 use of 35, 152 Pact of Bogotá (1948) 25, 34, 36–41 Colombia denouncement of 40 on right of individual and collective self-defense 38 pacta sunt servanda, principle of 43 Palamare-Iribane v. Chile (2005) 59 Pan American Union 33–4 Pan Americanism 34 Panama Case of the Indigenous Peoples Kuna de Madungandí and Embera de Bayano v. Panama (2014) 66 Case of Vélez Loor v. Panama (2020) 127 Constitution of 66, 80 freedom of assembly 66

on peaceful transit of vessels through Panama Canal 80 projects for hydroelectric plants 66 protests in favor of positive peace-related rights 66–7 Paraguay Constitution of 72, 111, 176 “democratic era” of 72 Indigenous Xákmok Kásek Community v. Paraguay (2010) 81 internal challenges to peace 72 military dictatorships in 72 National Congress 72 Paraguayan Bishops’ Conference 72 protests against government corruption 72 protests to call for regime change 72–3 Parlevliet, Michelle 161, 164–5 participatory institutional processes, for equality claims 136 patriarchal concept of power 174 peace adoption of state measures to implement 10 code of conduct for states for the pursuit of 6 as a customary norm within Latin America 10 definition of 3 and human rights 7–10, 100–107 implementation of 12 in Latin America see peace within Latin America normative scope of 120–31 obligation to guarantee 83 as regional state practice 10 responsibility for 12 right to see peace, right to validity of 4 peace and gender relationship, in Latin America 176–9 peace at the international level Gründnorm 4–5 jus commune 5–17 other regional organizations 17–19 Peace Code for the Pan American Union (1938) 33 peace community 151

233

Index

peace education, institutions for 2, 12, 18, 108, 112, 115, 135, 144, 214–15 peace law 41, 107, 130, 160, 171 peace obligations, recognition of 7, 15, 131, 134, 161 Peace of Westphalia 1 peace policies, state’s claim of pursuit of 55 peace process, legitimacy of 124 peace, right to 55, 120, 123 in Bolivia 83 in Colombia 84–6, 89 in Costa Rica 96 declaration on 121, 176 society’s right to enjoyment of 124 states recognizing 83 peace within Latin America aim of the state for 48–50 as constitutional value 48–50 duties and functions of 48 externally oriented negative peace 50 internally oriented, statist/liberal peace 50 liberal-statist internal orientations towards 50–75 negative peace 76–82 obligation to contribute 48 presumption of harmony 49 peace within the home 106 Peace Zone 1, 20, 46 peaceful assembly right of 65, 73, 132 scope of legitimate limitation of 132 peaceful coexistence, right to 17, 46, 50, 52, 55, 61, 76–7, 81–2, 84, 86, 88, 94, 108, 111–12, 115, 125, 214 peaceful dispute resolution mechanism creation of 35 institutional 40 validity of arbitration as 28 peaceful gathering, right to 56 people, right of to be protected from massacre 122 permanent conciliation system 23 Permanent Court of Arbitration (PCA) 27–8 personal liberty, right to 102, 155–6, 183, 195

Peru

Barrios Altos v. Peru (2001) 124 Case of Azul Rojas Marin and others v. Peru (2020) 212 Constitution of 70, 114 political 112 Constitutional Tribunal 70 Dismissed Employees of Petroperú and others v. Peru (2017) 148 educational system of the teaching of the culture of peace 112 General Education Law 112 internal conflicts and social unrest 70 Lagos Campos v. Peru (2017) 144 Law No. 30810 and Law No. 28044 on culture of peace 112 mining trade union movement 58 Muelles Flores v. Peru (2019) 140 peaceful labor dispute resolution 114 protests to call for regime change 70 right to peaceful assembly without arms 70 Shining Path communist insurgency 70 standards relating to peace 112 Supreme Court of 70 Peters, Anne 68 Petro Urrego v. Colombia (2020) 9 Pious Fund dispute 28 Pizarro, Gonzalo 117–18 Plaza de Mayo 52 Poblete Vilches and others v. Chile (2018) 146 polarization of gender, within society Artavia Murillo v. Costa Rica 183–6 competitive framing of 182–200 Duque v. Colombia 187–90 and Inter-American Court of Human Rights 182–200 relationship between same-sex couples 190–200 state obligations concerning change of name and gender identity 190–200 police security officers, training of 102 political authority, abuses of 136 political dissent, repression of 164

234

The construction of the customary law of peace

political justice 19, 31–2 political liberty 32 political organization, right to 87, 91, 138, 161 political participation, right of 9, 176 political violence 105 Pompeo, Mike 180 porros (criminal gangs) 71 Portsmouth, Treaty of 28 Posenato, Naira 59 positive peace 200 case law 136 components of 16 equality and non-discrimination in relation to 135–7 evolution of 136 human rights violations related to 162 justiciability of 150 positive hybrid peace 162 preservation of 136 state obligations towards 135 Positive Peace Index 15 poverty 8, 42, 65, 68, 73, 94, 99, 120, 131, 138, 140, 142, 144, 156, 159–60, 164, 178 power relationships, patriarchy of 174 prenatal life, protection of 184 prisoners of war 23 privacy, right to 195 pro homine peace 1–3, 55, 75, 100, 116, 121, 129, 132, 134, 137, 161, 171–2, 184, 214 pro persona, principle of 137, 148–9, 195 property rights bias law 163 proportionality, principle of 125, 133, 150, 155, 157, 215 PROSUR see Forum for the Progress and Development of South America (PROSUR) protection of the family, right to 156, 195 protests, in favor of positive peace-related rights Brazil 64 Chile 61–2 Colombia 60–61 El Salvador 65–6 Haiti 62–3

Panama 66–7 Uruguay 67–8 protests to call for regime change 68–9 in Costa Rica 74 in Guatemala 75 in Haiti 71–2 in Honduras 73 in Mexico 71 in Paraguay 72–3 in Peru 70 public health, protection of 60 Pureza, José Manuel 108 quality peace 54, 132 added value defining 159–68 pro homine 172 scope of 162 racial profiling 158 Ramirez, Sergio 57 recognition of peace, within Latin American constitutions 11, 17, 19, 44, 49, 82, 120, 168, 170 Red Internacional de Jóvenes por la Paz 110 Refugee Law 99, 123 regime change, demands for 46, 57, 68–9, 110 regional commitment to democracy, notion of 34 Reimer, Franz 108, 115 religious beliefs, pluralism of 199 renunciation of war 50, 82 representative democracy 42, 44, 135 res judicata 28 Resolucion Alterna de Conflictos Laborales (RACL) 114 respect, maintenance of 13 responsibility for peace 12 restrictions, scope of 57 Revolutionary Armed Forces of Colombia (FARC) 15, 37, 80–81, 84, 92, 126 Richmond, Oliver 109, 162 right to abortion 182 adoption of law on 180 right to peace 18 formulation of 5 violation of 5

Index

Rio Treaty see Inter-American Treaty for Reciprocal Assistance (1947) Rivera, Diana Fajardo 86–7 Robles, Alfonso García 80 Roche Azaña v. Nicaragua (2020) 157 Roosevelt Corollary (1904) 26–9 Roosevelt, Franklin D. 1, 25–6, 29 Good Neighbor Policy 25 Roosevelt, Theodore 26–8 Monroe Doctrine (1823) 26 Pious Fund dispute 28 Roosevelt Corollary (1904) 26–9 Royal Dutch Shell company 21 Ruggie Guiding Principles on Business and Human Rights 166 Russo-Japanese war (1904–1905) 28 Saavedra Lamas Pact 23–5 Saltpeter war see War of the Pacific (1879) Salvadoran Armed Forces 65 same-sex couples 188, 196 pension rights of 187, 197 right to protection of privacy and family life 195 rights derived from a relationship between 190–200 same-sex marriage 188, 196 legislation on 180 San Salvador Protocol (1999) 44, 121, 141–5, 149, 171, 215 Article 13 of 135 Sandinista revolution (Nicaragua) 56 Santos, Juan Manual 2, 40, 92, 180 Schabas, William 20 Schesinger, Cristina Pardo 92 scorched-earth policy, of massacre of peasants 65 self-defense, right of 37–8, 42, 70, 99 self-determination, right to 6, 46, 54, 78–9 Servicio Paz y Justicia 53 sexual and reproductive rights of women, recognition of 174, 181 sexual harassment 114 in Argentina 179 fight against 181 in Mexico 204–7 against women 175

235

sexual orientation, notion of 188–90, 195, 198, 202, 212 sexual reproductive rights 183, 210 sexual rights, protection of 191 Sierra Porto, Humberto 125, 147–8, 154 social activists, violence against 57 social and cultural discrimination 174 social bond 105 social communication 18 social compact, principle of 137 social development 18–19 social inclusion 164 social injustice 150 social justice 1, 4, 42, 109, 120, 145, 162 for indigenous people 100 negative peace implicating order over 163 social mobilization 51, 175, 179–80 feminist 179–82 social morality 105 social order, peace as in Argentina 51–3 in Nicaragua 56–7 in Venezuela 54–6 social peace 49 democratic coexistence and 83 societal obligation towards 83 social reality 104, 195 social resilience, promotion of 113 social responsibilities 83, 102 social security system 11, 42, 140, 145, 188 social unrest and violence 49 social welfare 11, 87 socialism, threat of 9 socialist models of constitutions 76 societal collapse, in Venezuela 17 societal discourse, in Latin American 107 societal polarization, on issues relating to women’s rights 179, 181 socio-economic and cultural rights, justiciability of 137 socio-economic development 112 soft law instrument 20 Spanish American Wars of Independence 118 speech deserving special protection, types of 59–60 Stairs Mejia and others v. Honduras (2018) 102

236

The construction of the customary law of peace

standard of living 31–2, 178 Standard Oil 21 state and gang violence, in El Salvador 17 state repression and societal rebellion, cycles of 161 state responsibility, for failure to protect individuals and communities from violence 15 statehood criteria for 25 declarative theory of 25 strategic mobilization, around domestic violence and abortion 182 Stroessner, Alfredo 72 structural inequality 140, 154, 159 structural violence 147, 161 approach to addressing 137–44 elimination of 119, 120, 140 within Latin America 160 negative hybrid peace 162 sub-regional organizations 1, 20, 45–7 supranational juridical order 76–7, 82 Suriname conflict prevention and peacebuilding initiatives in 43 Constitution of 76 externally oriented negative peace 50 principle of non-interference in domestic affairs 77 statist/liberal peace 50 survivors’ pensions, right to 188 sustainable development 137 Sustainable Development Goal 1 Agenda 2030 13 Goal 16 (SD16) 13–14 objectives of 14 peace as 13–15 sustainable gendered peace 179, 182 construction of 162 culture of 175, 181 customary law of 172 definition of 178 feminist social mobilization and counter-mobilization 179–82 gender equality 174 non-repetition guarantees relating to 175

normative and institutional link 176–9 sustainable peaceful societies 3 Talmon, Stefan 11 territorial acquisition, through use of force 23, 25 prohibition of 34 territorial peace concept of 2, 76–82 nuclear disarmament and 80–82 Third World countries 79 Tlatelolco Massacre (1968) 71 Tlatelolco, Treaty of (1969) 71, 80 Torelly, Marcelo 170 trade unions 58, 108 right of 115, 144, 212 to file claims with the Court 58 transnational legal system 4 Treaty on European Union 17 Treaty on Pacific Solutions see Pact of Bogotá (1948) Treat of Peace and Friendship between Argentina and Chile (1984) 43 Trindade, Cançado 119, 121, 123, 136 Trump, Donald 180–81 March for Life rally 181 truth, right to 134 Umpire Arbitrator of the Commission 28 UN Charter 7, 12, 18, 45, 77, 93, 95 jus commune 3, 5–6, 116, 159 limitations on the use of force 37 pacific solution of conflicts based on equality 79 Preambles of 97 UN General Assembly (UNGA) 1, 37, 110 recognition of peace as a human right by 11 resolution on Promotion of Peace 110 Unidad Revolucionaria Nacional Guatemalteca (URNG) see Guatemalan National Revolutionary Unity Union of South American Nations (UNASUR) 45 United Nations (UN)

Index

Arria Formula meeting (2017) 55 Committee on Economic, Social, and Cultural Rights 142, 190 Declaration on the Right to Peace (2016) 10–13, 45, 135 Human Rights Committee 69, 190 peacekeeping operations MINUSTAH 63 Security Council 6, 38, 106 Sustainable Development Goal 1, 13–15 Universal Declaration of Human Rights 7, 12, 97, 142 United Nations Educational, Scientific and Cultural Organization (UNESCO) 12, 14, 110, 121 United States (US) Congress 28 intervention in Haiti 43 occupation of Nicaragua 56 Operation Uphold Democracy (1994) 62 support for regime change in Venezuela 46 universalist models of peace, as an end and a means 76–9 unlawful use of force, prohibition of 122 UN Women 177 strategy for 2019–2020 178 Urueña, Rene 182–3, 199 Uruguay Biaberi Duarte and others v. Uruguay (2011) 67 Constitution of 67, 77 decree banning street protests 67 financial and trade policies 67 legalization of house raids 68 protests against “American Imperialism” 67 protests in favor of positive peace-related rights 67–8 right of peaceful and unarmed public meetings 67 on use of peaceful means of dispute settlement 77 worker protests regarding the pulp mill 67 Valero Diaz, Brenda 174 Vela, Blasco Nuñez 117

237

Vélez Loor v. Panama (2020) 127 Vélez Restrepo case (2012) 58 Venezuela abuses against the rule of law 103 Arria Formula meeting (2017) 55 Bolivarian Revolutionary regime 54 bond debt 27 civil war in 26–7 coalition of powers 80 Community of Caribbean and Latin American States (CELAC) 46 conflict between values in an amnesty 103 Constitution of 77, 80, 83, 102 Article 132 of 102 criteria of delimitation of amnesty with respect to justice 103 dependence on foreign investment 27 Diaz Lorteo and Others v. Venezuela (2019) 102 economic crisis 54 expulsion from MERCOSUR 46 extrajudicial executions 102 extrajudicial executions of opponents 54 humanitarian crisis in 37, 54–5 Law of Amnesty and National Reconciliation 104 naval blockade of 26 non-payment of interest 27 peace and human rights in 102–7 on prohibition of foreign military bases within its territory 80 refusal to recognize jurisdiction of ICJ 39–40 shipping lines 27 social order and the risk of oppressive peace 54–6 social responsibilities 102 societal obligation towards social peace 83 state policies preventing violence by private actors 106 Supreme Court of 102 training of police security officers 102 US and EU economic sanctions on 54 US support for regime change in 46

238

The construction of the customary law of peace

violations of human rights and democracy 54 right to life and torture of persons 102 withdrawal from American Convention on Human Rights 55, 106 Venezuelan Navy, seizure of (1902) 26, 39 Vienna Convention on the Law of Treaties 149 Vio Grossi, Eduardo 144–5, 175, 183, 185, 187–8, 196–7, 199 violations of peace 15 claim regarding 93 in Costa Rica 93 violence against women 18, 174 Convention of Belém do Pará on 176–9 obligations of states regarding 179 vocational training, for displaced and demobilized youths 108 vote, right to 119 vulnerable groups 99, 130, 136, 139, 163 War of the Pacific (1879) 21, 22

War on Terror 93 water rights, privatization of 39 Wells, H.G. 119 women and children, trafficking of 160 women’s equality, relation with peace movement 174 women’s rights 174, 205 challenges to 181 and gendered peace 129 guarantees involving 51 impact of societal polarization on issues relating to 179 legislation on 201 liberal approach to 175 non-repetition orders involving 200–10 protection of 212 to support state security agendas 178 xenophobia 8, 130, 181 yanaconazgos 118 Zaffaroni, Eugenio Raúl 129–30 zone of peace see Peace Zone Zuloaga, Patricia Palacios 171