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Between universalism and

regional law and politics:
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A comparative history of the
American, European, and
African human rights systems
Alexandra Huneeus* and Mikael Rask Madsen**
This article represents a first systematic attempt to compare the institutional histories of
the regional human rights systems in Europe, the Americas, and Africa. It argues that the
three main regional human rights systems have enacted common scripts that have produced
relatively similar institutional models across the regions under scrutiny. This is not to deny,
however, the enormous variation among the systems; nor is it to deny the role of local social
and political contexts in shaping them. Rather, the analysis seeks precisely to identify both
the common institutional scripts and the regional particularities to render the general history
of regional human rights courts and commissions—a key component of the larger history of
human rights that has been largely overlooked in current debates. We argue that the dynam-
ics of the Cold War initially shaped the bounds within which actors in each region came to
realize, re-shape, and re-signify common institutional scripts.
1. Introduction
Regional human rights have been heralded as one of the greatest innovations of interna-
tional law of the twentieth century.1 And yet, the broader debate on the history of human
rights has paid surprisingly little attention to regional human rights systems, thereby
missing some of the most salient strands of the larger history. This article represents a
* Associate Professor of Law, University of Wisconsin Law School. Email: huneeus@wisc.edu.

** Professor and Director of iCourts, the Danish National Research Foundation’s Centre of Excellence for
International Courts. This research is funded by the Danish National Research Foundation Grant no.
DNRF105. Email: Mikael.Madsen@jur.ku.dk.
1
See, e.g., M. O’Boyle, On Reforming the Operation of the European Court of Human Rights, 1 Eur. Hum. Rts.
L. Rev. 1 (2008).
I•CON (2018), Vol. 16 No. 1, 136–160 doi:10.1093/icon/moy011

Between universalism and regional law and politics 137
first systematic attempt to compare the institutional histories of the regional human
rights systems in Europe, the Americas, and Africa. It reveals how the regional rights
systems’ evolution has been shaped in part by the same geopolitical dynamics, and how,
in many ways, they have explicitly and implicitly worked in t andem, linked by common

challenges, and notably by shared ideas and practices. Our story also uncovers that the
paths of influence between the regional rights systems are not, as is often assumed, sim-
ply unidirectional: while it is undoubtedly the case that the European human rights sys-
tem became influential in its region earlier, the Latin American and African systems have
also contributed to the making of the broader international human rights order.
Our approach might seem uncontroversial to specialists of the regional systems. Yet it cuts
directly against tendencies in recent scholarship to concentrate on the universal system and
to emphasize the role of the West in the genesis of human rights institutions. Most scholars
who have given a global account of human rights have tended to slight the regional systems
and focus instead on the UN-based system, perhaps because it claims the mantle of univer-
sality.2 It is nevertheless in the regional systems where much—if not most—of the human
rights action has unfolded, and not only in recent years but from the very beginning. Most
decisively, the regional systems have developed judicial institutions that render binding judg-
ments on the member states. Consequently, they have also come to engage in increasingly
dense interaction with domestic courts, becoming far more deeply embedded in national sys-
tems than the UN system. To slight them is to distort the history of human rights.
Our comparative regional approach moreover allows us to push back on the tendency
to view human rights institutions and international courts as creations of the West that
are transplanted, copied, or otherwise vernacularized by the South. It is of course pos-
sible to describe the Inter-American Court, for example, as a transplant at a formal and
purely institutional level.3 Yet, such a narrow perspective leaves out how this system—
like the European and African ones—is embedded in and responsive to a region with dis-
tinct cultural, political, and social contexts. This contextual embeddedness in large part
explains the trajectory of the system. Even the “vernacularization” thesis4 that seeks to
emphasize the agency of local actors in adapting and re-signfiying “global” practices
assumes a directionality—from global North to global South—that our account chal-
lenges: the Inter-American regional system, for example, has made key contributions to
the practices and institutions of other regional human rights systems.5
2
See, e.g., Moyn who pays very little attention to the early European and American human rights systems
and when he does he tends to belittle them. S. Moyn,The Last Utopia: Human Rights in History (2010). And
see S. Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction
of Global Values (2016) (rescuing the Global South contribution, but emphasizing the United Nations
alone).
3
For such an institutional approach to regional (economic) courts, see K. J. Alter, The Global Spread of
European Style International Courts, 35 W. Eur. Pol. 135 (2012).
4
S. Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (2006).
5
Although we do not adopt a critical legal studies (CLS) perspective, our approach resonates with the
third world approaches to international law, as well as recent and emerging accounts of the history of
international law in Latin America and elsewhere. See, e.g., M. Mutua & A. Anghie, What Is TWAIL? 94
Proceedings of the Annual Meeting (Am. Soc’y Int’l L.) 31 (2000); M. A. Glendon, The Forgotten Crucible: The
Latin American Influence on the Universal Human Rights Idea, 16 Harv. Hum. Rts. J. 27 (2003).
138 I•CON 16 (2018), 136–160
The general argument underpinning our approach is that no single actor, state, or
region can claim sole authorship of international or regional human rights. This has
historic reasons: at the time of the genesis of all three systems, the repertoire of ideas
and concepts from which they drew had already emerged in both legal and political

discourse—and this influenced both regional and international developments.6 Thus,
the regional systems are neither the consequence of transplants going from the North
to the South nor the result of a larger UN or US-driven master plan of international
human rights. Rather, the fact that the systems share relatively similar institutional
models is revelatory of how these actors have borrowed from and contributed to a
collective bank of ideas about international human rights. Where the regional sys-
tems differ the most is therefore not in their institutional designs, which are generally
rather similar at a formal legal level, but the temporality of when they have managed
to turn ideas into actual institutions. Moreover, as our analysis suggests, even simi-
lar institutions, for example, Commissions, have sometimes played out differently on
the regional terrains due to specific contextual constraints. We consequently argue
that the single most decisive factor explaining differences in regional human rights
are contextual differences between the regions. Simultaneously, however, the fact
that exchange between the systems and the larger international regime have taken
place for decades provides countering processes of unification. This ultimately places
the regional systems at the crossroads of a universalizing discourse on human rights
and the specific constraints derived from local legal and political contexts. To use the
notions of the Stanford school of institutionalism,7 international human rights have
provided a global “script” which has been enacted in radically different settings in
Europe, Latin America, and Africa and has resulted in a relative diversity of institu-
tions and practices.
Reflecting this specific line of inquiry, our comparative analysis contrasts the devel-
opments in each region within specific historical periods. Using insights from previ-
ous work which have demonstrated the deep relationship between geopolitics and
the evolution of human rights,8 we have chosen three broad geopolitical episodes of
world history to delineate the analysis: the end of World War II; the Cold War; and
the era of globalization and democratizations that begins after 1990. Although the
three periods chosen imposed a set of common structural constraints on all three
systems, they also produced local contextual variation. To allow for these important
variations in the analysis, we explore the local contexts countering and varying global
trends in each of the regions. This approach is reflected in the structure of the article.
The genesis of the founding instruments is examined in Section 2 with an emphasis
on cross-fertilization (in all three directions) and shared experiences. Section 3 then
examines the process of institutionalizing human rights systems buffeted by Cold War
6
See, e.g., J. Winter & A. Prost, Rene Cassin and Human Rights—From the Great War to the Universal
Declaration (2013).
7
See, e.g., J. W. Meyer, J. Boli, G. M. Thomas, & F. O. Ramirez, World Society and the Nation-State, 103 Am.
J. Soc. 144 (1997).
8
See, e.g., M. R. Madsen, The Challenging Authority of the European Court of Human Rights: From Cold War
Legal Diplomacy to the Brighton Declaration and Backlash, 79 Law & Contemp. Probs. 141 (2016).
politics: each region was positioned differently vis-á-vis the USA and the USSR, and
thus each struck a unique balance between judicialization and other forms of human
rights work, and each forges new institutions and working methods. Section 4 points
to a relative convergence in the practices and challenges facing the regional systems

following the Cold War: processes of democratization and globalization contributed to
the judicialization of each, as well as to a growing exchange between them which is
decidedly multi-directional.
Section 5, the conclusion, briefly examines the shared challenges posed by the
current rise of populist politics that emphasize nationalist ideologies in the USA and
Europe. These changes have caused scholars to forecast the imminent end times of
human rights. But our comparative history of the key regional institutions suggests
that although the USA has been central, the history of regional human rights is
marked by the fact that many other actors, and the institutions themselves, have been
the real innovators. And they are likely to continue playing that role, with or without
the USA.
2. Declaring human rights in the aftermath of

World War II
The history of post-war human rights is increasingly contested.9 If we limit our focus
to international legal instruments, this history arguably begins with the American
Declaration of Human Rights.10 In preparation for the 1945 San Francisco meet-
ing that would define the new United Nations (UN), Latin American nations met in
Chapultepec, Mexico to forge a common political agenda for the post-war period. The
region was enjoying a rare period of prevalently democratic governments in the mid-
1940s, which meant the states had many common interests. It was in Chapultepec
that the Latin American states assigned the task of creating an international instru-
ment articulating the rights of man11 to the Inter-American Juridical Committee.12
A final version, the American Declaration of Human Rights, was adopted by the
nations of the Americas in Colombia in April 1948—the same meeting during which
they adopted the Charter of the Organization of American States and created the OAS.
The writing of the American Declaration and the Universal Declaration of Human
Rights (UDHR) thus overlap in time, with the American Declaration preceding that of
the UN General Assembly by eight months. Each set of drafters was aware of and inter-
ested in the work of the other. Mexico’s delegates to the Bogotá conference submitted
9
For an overview, see S. L. Hoffmann, Human Rights in the Twentieth Century: A Critical History (2011).
10
Glendon, supra note 5, at 31. See also K. Sikkink, Latin American Countries as Norm Protagonists of the Idea
of International Human Rights, 20 Global Governance 389 (2014).
11
Gros Espiell, La Declaración Americana de los Derechos y Deberes del Hombre. Raíces conceptuales y politicas en
la historia, la filosofía, y el derecho Americano,” Número Especial, Revista Instituto Interamericano de Derechos
Humanos 41, 49 (1989). Originally it was to be called the Declaration of the International Rights and
Duties of Man. Only later did its name come to reflect the regional, as opposed to universal, aspiration. Id.
12
The Inter-American Juridical Committee had been created in 1943 by the Third Meeting of Consultation
of Ministers of External Relations (Rio de Janeiro, 1942).
140 I•CON 16 (2018), 136–160
a motion to take notice of the Universal Declaration project. However, Hector Gros
Espiell’s study of the Bogotá meeting concludes that “there were few amendments
approved in Bogotá that were based on the United Nations project.”13 Conversely,
historians of the Universal Declaration emphasize the influence of Latin American

states and actors generally, and of the American Declaration in particular. An early
draft of the American Declaration, for example, was one of the main sources for the
Economic, Social and Cultural Rights of the first draft of the UDHR.14 In this sense,
Latin American states were early innovators that influenced the development of the
Universal and, indirectly, the European human rights system. Even as a series of other
actors were pursuing similar ideas, they were the first to turn these ideas into an inter-
national legal document and to draw the contours of a regional model.
The Latin American states were, however, loath to further legalize and institution-
alize the human rights they declared. The OAS Charter mentions human rights, but
does not include its own list of rights. And while the Charter provides for the creation
of a human rights commission, the Inter-American Commission opened its doors only
in 1959, over a decade after the Charter was adopted. This preference for aspirational
declarations over institutions and binding treaties closely tracks US foreign policy of
the time: in the OAS as in the UN, the USA was influential “both in helping to acknowl-
edge vague principles and in defeating something stronger.”15 The USA supported the
writing of and voted in favor of both human rights declarations. Yet it opposed the
efforts of Latin American states to include specific human rights commitments in
the UN Charter, just as it opposed initiatives in 1948 to include the American
Declaration in the OAS Charter, and to create a separate binding human rights treaty.16
It would be a mistake, however, to attribute the shape of the early OAS human rights
system to US foreign policy alone. The main impetus for its creation came from Latin
American states, which pushed successfully for a declaration, and for the inclusion of
human rights and a commission in the OAS Charter. Further, several Latin American
states were themselves reluctant to create binding commitments not because the USA
opposed them, but for reasons related to their own domestic politics.
2.1. The European Convention and “free Europe”

The drafting of the European Convention on Human Rights (ECHR) in the late 1940s
drew from the same pool of ideas and scripts as had the American states and the UN.
As in the Americas, the idea of a human rights convention was regarded by many as
intrinsic to the broader efforts linked to regional integration of the late 1940s.17 Also,
13
Supra note 11 at 46 (translated by authors).
14
J. Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999). See also
Glendon, supra note 5, at 31.
15
D. Forsythe, Human Rights, the United States and the Organization of American States, 13 Hum. Rts. Q. 66, 76
(1991).
16
Id. at 77.
17
Suggestions for a Western option or alternative date back further and include suggestions for both North
Atlantic alliances and European federalism. See, e.g., A. W. B. Simpson, Human Rights and the End of Empire:
Britain and the Genesis of the European Convention 558 (2004).
even if the ECHR was presented as mainly codifying existing national practices,18 it
found its inspiration in the UDHR and there was no attempt to deviate too much from
this common script.
Yet, the ECHR was also different. The Convention, which came a few years later

than the American Declaration and OAS Charter, was a reaction to the heightening
tensions of the post-war world. It was drafted above all as a Cold War instrument,
and a political statement for a “free Europe.”19 During the actual negotiation of the
ECHR, the utopian visions of universal human rights were generally substituted with
a more westernized jargon of “liberty and democracy.” Indeed, the rapid drafting of
the Convention reflected a growing fear of, on the one hand, the rising power of the
national Communist parties, and, on the other, Soviet imperial expansionism into
Western Europe. Animated by these new political realities, European governments
actually managed to agree on the institutional components for providing Europeans
with enforceable human rights under international law. Rather than issuing non-
binding declarations or postponing the creation of relevant institutions as the UN and
OAS had done, the ECHR provided for the creation of institutions—a Commission and
a Court—that would enforce human rights on the international plane. This was an
institutional innovation, but the idea of international human rights courts neverthe-
less predated the European efforts.
However, the European states’ commitment to actual enforcement, as opposed to
Cold War posturing, should not be overstated. Ratification did not require accepting
the European Court of Human Rights’ (ECtHR) jurisdiction or the right to individual
petition before the Commission. Both features, which later would become emblems
of the European human rights regime, were optional in the 1950 Convention. And
this design feature—introduced as a necessary compromise during negotiation of
the European human rights system—deeply influenced the authority and practices
of the ECtHR until the mid- to late 1970s. As we will see below, both the African and
Inter-American system later adopted this feature of tiered judicialization, allowing
each state to choose whether its commitment would be shallow, deep, or somewhere
in between.
2.2. Africa and the European Convention

The tiered system also allowed colonial powers to extend the European Convention
to their colonies with relatively little cost. Indeed, well before the newly independent
African states would create an autochthonous human rights system, large parts of
colonial Africa were in principle subsumed into the European regional system. Britain
extended the reach of the ECHR to its colonial territories under ECHR article 56 in
1953, as part of a complex late-colonial game of limiting the political costs of decol-
onization insurgencies and maintaining imperial order. In practice it was, however,
a largely symbolic gesture. Britain only accepted the right to individual complaints
18
Id.
19
See, e.g., M. R. Madsen, From Cold War Instrument to Supreme European Court: The European Court of Human
Rights at the Crossroads of International and National Law and Politics, 32 Law & Soc. Inquiry 137 (2007).
142 I•CON 16 (2018), 136–160
and the court’s jurisdiction in 1966. That meant that access to Strasbourg was tightly
restricted during the height of the decolonization process: the only path was for
another Convention state to bring Britain before the Commission, and although this
did happen in the Cyprus case discussed below, there were no other examples of the

use of interstate complaints regarding administered territories.
France, the other main colonial power, only ratified the Convention in 1974 but then
made the Convention applicable to a number of overseas territories, in practice a set of
small islands in the Caribbean, the South Pacific, and the Indian Ocean. Other colonial
powers equally extended the reach of the Convention to colonial holdings, notably
the Netherlands (Surinam and Dutch Antilles and Aruba) and Denmark (Greenland).
Belgium, however, opted to exclude the Congo. Significantly, and despite the colonial
powers’ disingenuous extension of the ECHR to their colonies, the Convention became
the basis for the bills of rights of many African states upon independence, following its
use as a model for the Nigerian Constitution.20 Arguably, these would, in turn, inform
the making of the African human rights system.
Comparatively, this early period of drafting the foundational instruments shows
that Latin America and Europe, and to some extent the USA, were drawing from and
expanding upon the same shared pool of ideas about human rights protection as they
developed regional systems. They developed largely similar lists of rights and insti-
tutions: non-binding declarations; international bodies dedicated to human rights,
and, indeed, the very idea of rights promotion and protection at the regional level.
Moreover, it is very clear that the development was hardly a transplant from Europe or
the USA to the South. The different instruments rather emerged in a historical moment
which allowed for turning a set of already existing ideas into legal documents, albeit in
most cases of a soft kind.
3. Forging regional human rights institutions during the

Cold War
We have argued that Cold War politics shaped the original European Convention and
thereby made it have a different momentum than the two preceding declarations of the
immediate post-war period.21 As we will argue below, Cold War politics came to shape
all of the human rights systems during the subsequent period. But it did so in the con-
text of emerging human rights institutions—states were no longer the sole authors of
human rights. In the OAS System, the proximity of the US and Latin American states’
own ambivalence about human rights institutions meant that the system initially had
little legal heft. But it was nonetheless able to gain power and a relative autonomy
through what we describe below as the Inter-American Commission’s creative politi-
cal, as opposed to legal, human rights diplomacy. By contrast, the European human
20
We thank Frans Viljoen for this point. See also K. Vasak, The European Convention of Human Rights Beyond
the Frontiers of Europe, 12(4) Int’l & Comp. L.Q. 1206 (1963).
21
The argument is developed in detail in M. R. Madsen, La Genèse de L’Europe des Droits de L’Homme: Enjeux
Juridiques et Stratégies d’Etat (France, Grande-Bretagne et Pays Scandinaves, 1945–1970) (2010).
rights institutions eventually developed a more legal approach tailored to the main
structural constraints of the period—Cold War and decolonization—an approach best
described as “legal diplomacy.” This allowed the system to very gradually institution-
alize and create its legal tools which subsequently, during the détente of world politics

of the 1970s, were turned into effective legal protections. We further compare this to
the situation in Africa. The fact that African countries in many instances were subject
to Cold War proxy wars between the super powers made it a very protracted process
to create a common African human rights agenda. Consequently, only in 1986 did
the African Charter come into effect, a document which both drew upon the prior two
regional charters and introduced a new vocabulary of duties and of peoples, which
reflected above all a concern with de-colonization
3.1. Human rights diplomacy in the Americas

The legal conception of human rights and the idea of a judicial regime to protect them
had in fact been fully articulated already at the birth of the OAS. During the same
1948 Bogotá meeting in which the states voted into being the American Declaration,
they issued a resolution calling on the Inter-American Juridical Committee to con-
sider “a Statute for the creation and functioning of an Inter-American Court dedicated
to guaranteeing the Rights of Man.”22 However, the quickly unfolding dynamics of
the Cold War meant that this judicial model was set aside. The Juridical Committee
responded in 1949 with a report concluding that to create a court prior to creating a
legally binding human rights instrument was to put the cart before the horse.23 The
project of the Inter-American Court was thus scuttled, but neither did the project of
creating a binding human rights convention immediately prosper.
Indeed, for the first decade of the OAS, there was no institution-building around
human rights, and no binding human rights commitments. Importantly, the United
States’ dual role as world hegemon and state party meant that it had an ambivalent
and ever-shifting attitude toward the Inter-American system (IAS): as a matter of for-
eign diplomacy, a human rights system that emphasized liberty and democracy might,
at times, help in its struggle against communism in Latin America; but as a matter of
domestic politics, the USA refrained from subjecting itself to binding human rights
law and institutions. The Latin American states were themselves ambivalent, at times
because they worried that a strong system would create greater likelihood of US inter-
vention in local affairs, at others because they, too, were reluctant to subject them-
selves to international scrutiny: “Virtually all elites were content with, or resigned
to, the status quo.”24 Their preference was to keep the Inter-American human rights
system as a vehicle for declaring and promoting human rights, with states as the site
for their actual protection.
22
D. Zovatto, Antecedentes de la Creación de la Corte Interamerican de Derechos Humanos, in La Corte
Interamericana de Derechos Humanos. Estudios y documentos 209 (1999).
23
Id.
24
Forsythe, supra note 15, at 80.
144 I•CON 16 (2018), 136–160
It took a political crisis in the late 1950s to open the way for the creation of the
Inter-American Commission. The Dominican Republic’s meddling in Venezuelan
affairs alarmed Venezuela’s allies, triggering the OAS into action. In its statements
to the OAS, Venezuela raised the Trujillo government’s violation of domestic human

rights. The USA sided with Venezuela in pushing for regional action in the Dominican
Republic crisis. But many other states were wary of US intentions, concerned that a
strong human rights regime would erode the principle of non-intervention so strongly
articulated by American states in the 1933 Montevideo Convention. Eventually a
compromise was reached: on the one hand, the OAS would attend to the crisis in the
Dominican Republic through diplomatic intervention; on the other, it would create
a human rights commission. At the 1959 meeting of the Consultation of Foreign
Ministers in Santiago, Chile, the ministers issued a declaration directly linking inter-
state relations to human rights: “the harmony among the American Republics only
can be effective as long as respect of human rights and fundamental freedoms . . .
are a reality in the internal workings of each of them.”25 The Commission was voted
into being. However, its mandate gave it powers to educate and provide consultation
only: it could “develop an awareness of human rights” in the Americas, “make recom-
mendations” to member states, “prepare” general studies, and “urge” governments to
provide information on human rights.26 The USA abstained on the Commission vote.27
The Commission soon grew beyond its constrained mandate. Through its handling
of political crises and creative readings of its mandate, it began to assert authority to
not only study and promote human rights in general but also protect them in specific
situations.28 Thus, the Commission began to make inquiries into the human rights
situation in Castro’s Cuba, and to issue recommendations regarding its human rights
situation.29 Perhaps unsurprisingly, these interventions drew no complaint from
the United States, while Castro complained of US imperialism.30 But it then became
harder for the USA and other states to object on principle when the Commission began
claiming the same powers over other states, such as Haiti, Dominican Republic, and,
eventually, Argentina and Chile.31
25
Final Act, Fifth Meeting of Consulation of Ministers of Foreign Affairs, Santiago, Chile, Inter-Am. C.H.R.,
OAS Doc. OEA/Ser. C?11.5 at 3 (1960), cited in R. Goldman, History and Action: The Inter-American Human
Rights System and the Role of the Inter-Amrercan Commission on Human Rights, 31 Hum. Rts. Q. 856, 862
(2009).
26
Statute of the Inter-American Commission on Human Rights, adopted May 25, 1960, O.A.S. Doc. OEA/
SEr.L/V/I.1 (1960) art. 9.
27
Forsythe, supra note 15, at 82. This abstention came despite the fact that the USA successfully opposed
allowing the new Commission to hear individual complaints.
28
C. Medina, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System 75
(1988).
29
The Commission’s first two country reports both focused on Cuba. Available at http://www.oas.org/en/
iachr/reports/country.asp. It is interesting to note, further, that until the 1974 report on Chile, all the
country reports focused on smaller states in Central America and the Caribbean.
30
P. W. Kelly, Sovereign Emergencies: Latin America and the Making of Global Human Rights Politics 5 (forth-
coming 2018).
31
Medina, supra note 28, at 75.
In this way, the Commission incrementally claimed the power to conduct in-country
visits (with state consent) and write reports on conditions in countries of its choosing;
to assign rapporteurships; and to conduct good offices and mediation. It even began to
accept individual petitions,32 although it soon ran up against the limits of a case sys-

tem in the context of dictatorships that would readily deny facts and withhold infor-
mation. It “concluded without any formal decision to invest almost all of its resources
in reports on the general conditions of human rights in various countries.”33
In 1967, the OAS formally wrote the powers the Commission had begun claiming
into its mandate and promoted the Commission to the status of a principle organ of
the OAS. 34 Entering its second decade with a more solid status, the Commission began
to reach its stride.35 As military dictatorships came into power in the Southern Cone,
and as human rights activists began to organize around their systematic violations,
the Commission began to confront more powerful states. Reports drawn from in loco
visits and individual communications established the Commission as a “hemispheric
grand jury”36 or “collective ombudsman, working primarily through diplomacy”
to defend human rights.37 The reports on Pinochet’s Chile, in particular, re-shaped
perceptions of the military regime and raised the Commission’s profile. As argued by
Patrick Kelly: “The OAS, and the sanctity of its member states’ national sovereignty,
would never be quite the same.”38
The Commission’s political approach stands in contrast to that of the early ECHR
system, which was from the beginning based on the more legalistic logic of indi-
vidual petition or inter-state complaints.39 The Inter-American Commission was
also under very different constraints. Because it claimed its powers directly from
the OAS Charter, the Commission did not have to concern itself with wooing states:
all American states were already party. At the same time, as the late 1960s and
early 1970s wore on, it had to contend with a growing number of dictatorships.
The Commission’s constraints were also quite different from those of the UN Human
Rights system. Felipe Gonzalez writes that the Inter-American Commission was
more able to intervene in regional situations than was the universal system, in part
because it did not contain within it the paralyzing rift between the USA and the
USSR:40 the great majority of American states were within the US sphere of influ-
ence during the Cold War.
Even as the IAS thus forged a human rights strategy that emphasized country reports
over cases, the project of judicialization inched forward. At the same 1959 meeting
32
Id., ch. 6.
33
T. Farer, The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox, 19(3)
Hum. Rts. Q. 529 (1997).
34
Medina, supra note 28..
35
Kelly, supra note 30.
36
Farer, supra note 33, at 512.
37
Forsythe, supra note 15, at 84.
38
Kelly, supra note 30, at 14–15.
39
See infra. Section 3.2
40
F. Gonzalez, Sistema Interamericano de Derechos Humanos (2013).
146 I•CON 16 (2018), 136–160
in which the Commission was created, the Inter-American Committee of Jurists41 was
charged with writing a binding human rights Convention which provided for the cre-
ation of a court. Although a draft was ready within the year, it was not presented to the
OAS until an Inter-American Conference in 1965.42 The American Convention was

then further delayed by developments at the UN, where the two main international
human rights covenants were finally ready in 1966. After some debate about whether
the IAS should focus on creating mechanisms to enforce the universal human rights
treaties, the IAS opted for following the model of binding regional law that was also
emerging in Europe. The American Convention, complete with its own list of rights
and providing for an Inter-American Court, was adopted in November 1969 and went
into effect in 1978—almost two decades after an OAS body first called for its creation.43
It would, however, take another ten years for the Court to begin to have real impact. Like
the ECHR, the ACHR created a tiered system in which states were allowed to choose among
different levels of commitment. At the highest level, states could ratify the Convention
and, through a separate declaration, accept the jurisdiction of the Inter-American Court.
Alternatively, states could ratify the Convention but not accept the jurisdiction of the Court.
At the lowest level, states could choose not to ratify the Convention, and thus remain subject
only to the Commission’s supervision under the OAS Charter and American Declaration.44
This meant that the early Inter-American Court—like the European institutions but in con-
trast to the early Inter-American Commission—would have to be mindful of wooing states
into the system. And states were loath to accept court jurisdiction. At the time the Inter-
American Court issued its first annual report in 1980, only Costa Rica, home to the Court,
was on board. When it received its first contentious case in 1986, only nine states were in
the fold, and neither Brazil nor Mexico, the two main regional powers, were part.
A further hindrance to judicialization was that, as in the early European system,
there was no direct petition to the Court: to this day, individual petitions must begin
at the Commission, and will only be referred to the Court if efforts to create a non-
adjudicative resolution fail. But the Inter-American Commission was both mistrustful
of the new court and jealous of its own role. It refused to refer cases for seven years,
confining the Court’s activity to requests for advisory opinions referred by states.
Through the end of the 1980s, then, the IAS was a system in which the Commission’s
self-styled model of political human rights diplomacy was paramount.
3.2. Europe: From legal diplomacy to human rights law

The ECHR became effective in 1953 and the right to individual petition (before the
Commission) became effective in 1955 for the Federal Republic of Germany and a few
41
The IACJ was created by the OAS Charter to assist with the codification of international law. See G. Pope
Atkins, Encyclopedia of the Inter-American System 241 (1997).
42
It had been scheduled to be presented in 1961, but that meeting was canceled after the Bay of Pigs
debacle. See Goldman, supra note 25, at 863.
43
Organization of American States, American Convention on Human Rights, Nov. 22, 1969, in force July
18, 1978, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, at Chapter VIII.
44
This is the level at which the United States, Canada, Venezuela, and several Caribbean states currently
participate in the IAS.
smaller states. The Court began operating only in 1959, after the Federal Republic
of Germany and seven smaller states had accepted its jurisdiction. Notably, the three
major European powers of France, the UK, and Italy were absent. This meant that
both the Commission and the Court not only had to develop European human rights

but also, and as a key objective, had to seek to woo these crucial states to accept its
jurisdiction.
The very first cases issued by the Strasbourg institutions provide, in many ways, a
highly illustrative case of the situation of the nascent European human rights system
in the midst of Cold War and decolonization. The Cyprus case45 before the Commission,
an interstate complaint filed by Greece against the UK, both NATO member states,
imported into the system all the complexities of late colonial practices. What was
increasingly looking like a showdown with the British Empire in Strasbourg was, how-
ever, eventually solved by resort to diplomacy.46 For the Strasbourg institution, this was
a convenient solution because it was thus able to avoid having to pronounce violations
in the context of international high politics. For the member states, the solution helped
avoid that a key country in the broader Cold War scheme, the United Kingdom, was to
be denounced as violator of the Convention—and, crucially, before having accepted
the jurisdiction of the Court. But the first case before the Court, Lawless v. Ireland47 was
equally testing. It concerned the use of detention without trial in Ireland as a response
to IRA insurgency. Again, Strasbourg found a way out: according to the Court, the
practice was not in compliance with article 5 of the Convention. However, the Court
interpreted article 15 with respect to emergency situations in such a way that the
Irish government was entitled to apply these measures, since the “life of the nation”
was threatened.
In other words, a form of legal diplomacy prevailed as a means to play the double
game of, on the one hand, affirming the Court’s position as having the final say on the
interpretation of the rules while, on the other, finding solutions that did not alienate
the existing or prospective member states. Importantly, the legal diplomacy approach
stands in contrast to that of the Inter-American system which was, for the first three
decades, mainly a political diplomatic system. A key difference was that an individual or
state petition was required to set the European system in motion. Neither the European
Commission nor the Court interpreted its mandates to include ex officio competences to
identify cases. Moreover, the country visits and writing of general reports that was the
main activities of the Inter-American Commission were not an important part of the
repertoire of the European system. And while the European Commission (and Court)
acted under the permanent threat of member state opt-ins or -outs, the Inter-American
had more solid ground in its legal mandate derived from the Charter.
Tailored to its political and institutional context, the legal diplomacy of the European
institutions was, however, successful in institutional terms.48 It was precisely against
45
Greece v. United Kingdom, App. No. 176/56, ECtHR (Dec. 14, 1958).
46
Simpson, supra note 17.
47
App. No. 332/57, ECtHR (July 1, 1961).
48
M. R. Madsen, Legal Diplomacy—Law, Politics and the Genesis of Postwar European Human Rights, in Human
Rights in the Twentieth Century: A Critical History (2011).
148 I•CON 16 (2018), 136–160
the backdrop of very cautious legal development that, in 1966, the UK chose to accept
the optional clauses on individual petition and ECtHR jurisdiction, including for some
of its dependencies (1967). In the following years, the other key member states fol-
lowed, including France and Italy, and by 1975 the ECtHR was finally fully operational

in the sense that all high contracting parties had accepted the jurisdiction of the Court49
The Court did not waste much time in turning this political opening into law, through a
series of landmark decisions of the late 1970s which visibly shifted its direction in human
rights law and power. Notably it made the Convention both dynamic and a real obligation
on the member states: In 1978, the Court held that the ECHR is “[. . .] a living instrument . . .
[which] must be interpreted in the light of present-day conditions . . . standards in the . . .
member states.”50 In 1979, it established that “[t]he Convention is intended to guarantee
not rights that are theoretical or illusory but rights that are practical and effective..”51
This change can best be explained by a transformation in the Court’s operational
context. The ECtHR generally benefited from the fact that the Cold War of human rights
was receding and the major European powers had accepted the end of empire. As a
result, European imperial societies were no longer the main object of human rights
activism. In Western Europe, throughout the 1970s, most human rights activism was
instead directed against non-democratic regimes outside the jurisdiction of European
human rights: Greece, Spain, and Portugal.52 Indeed, for human rights activism in
the 1970s, the main offenders were geographically located outside Western Europe:
in Latin America, South Africa, and Eastern Europe. Moreover, the ECtHR’s new case
law also reflected other important social processes of the period. The two key decisions
cited above concerned contemporary social issues, such as corporal punishment and
access to divorce. In other words, the ECtHR took full advantage of the geopolitical
transformations of the period, notably the Cold War détente, to improve its overall
institutional position and start addressing “present-day [social] conditions” to legiti-
mize a new more progressive European human rights law.
The European institutions thus began to innovate, linking human rights not only to
fundamental rights such as the right against torture and forced disappearance (that
had become the focus of activism in Latin America in the meantime) but also now to
progressive social issues, such as access to divorce. This move would eventually help
expand the meaning of human rights and the reach of the Convention. Prima facie,
then, the Latin American and European regional systems looked similar during the
Cold War: they began their trajectory with instruments that covered similar sets of
rights and bodies devoted to their protection. However, as these institutions began to
respond to their distinctive regional politics and contexts, they created different work-
ing methods and ideas regarding regional human rights protection, and focused on
the development of different rights doctrines.
49
France, however, only accepted individual petition in 1981.
50
Tyrer v. the United Kingdom, App. No. 5856/72, ECtHR, ¶ 31(Apr. 25, 1978).
51
Airey v. Ireland, App. No. 6289/73, ECtHR, ¶ 24 (Oct. 9,1979).
52
Greece withdrew from the European system between 1970 and 1975, while Portugal and Spain only
joined the system in 1977 and 1978, respectively, after their transitions to democracy.
3.3. Africa: Human rights in the post-colonial state

The project of creating an African Charter on Human and Peoples’ Rights (or the
Banjul Charter) was officially launched by the Organization for African Unity (now
the African Union) in 1979, the same year the Inter-American Court officially opened

its doors and the ECtHR delivered yet another landmark decision. The Charter came
into effect in 1986, and in 1987 an African Commission on Human and Peoples’
Rights was created with the task of promoting, protecting, and interpreting the
Charter. The question of a regional African human rights instrument was, however,
much older, yet it had been overshadowed by what most African leaders saw as para-
mount to creating effective post-colonial states, namely, security, effective decoloniza-
tion, sovereignty and territorial integrity—and economic growth. The original focus
of the organization can, on balance, be said to have been more on African states than
African individuals, and far more focused on politics than law.
Making things further complicated, the very question of human rights was deeply
entangled with decolonization during the period. Some historians have recently argued
that human rights played only a marginal role in the processes of decolonization—
that is, liberation movements only marginally mobilized the repertoire of human
rights to argue for independence.53 What these accounts tend to overlook, however, is
that other actors were pursuing an international human rights agenda in Africa and
for a variety of reasons. This is the case of the international involvement of metro-
politan French lawyers in a number of decolonization struggles in French-controlled
Africa,54 and it is the case of early human rights NGOs.
One such NGO was the International Commission of Jurists (ICJ), at the time a
strongly Western-leaning organization and crusading for civil and political rights.55
As early as 1961 at a meeting organized by the ICJ and attended by 194 lawyers,
judges and scholars from twenty-three African countries in Lagos, Nigeria, a call was
made for the establishment of an African court of human rights.56 For the subsequent
twenty years, the idea was kept alive by numerous calls by United Nations Commission
on Human Rights, NGOs and individual states. The idea of a court was also proposed
by one delegation to the Banjul Charter conference. That said, the reigning sentiment
was that it was premature to take the project on at this stage. Moreover, as argued by
Frans Viljoen, the notion of an African court at this stage was not that of a human
rights court but rather something resembling a regional penal court to prosecute
crimes against humanity, a clear target being Apartheid leaders.57
In the context of this analysis, it is interesting to observe that the Banjul Charter
introduces several innovations to the models earlier created in Europe and the
53
J. Eckel, Human Rights and Decolonization: New Perspectives and Open Questions, 1 Human.: An Int’l J. Hum.
Rts., Humanitarianism, and Dev. 111 (2010).
54
Madsen, supra note 21.
55
It even received covert funding from the CIA. H. Tolley, The International Commission of Jurists: Global
Advocates of Human Rights (1994).
56
N. J. Udombana, Towards the African Court on Human and Peoples’ Rights: Better Later Than Never, Yale Hum.
Rts. & Dev. L.J. 1, 3 (2000).
57
F. Viljoen, A Human Rights Court for Africa, and Africans, 30 Brook. J. Int’l L. 1, 5–6 (2004).
150 I•CON 16 (2018), 136–160
Americas. Although these innovations are often construed as reflecting a distinctly

African tradition, they can also be seen as a pragmatic response to the political context
of de-colonization and the Cold War. In particular, the Charter emphasizes the rights
of “peoples,” which do not appear in the European or American Conventions, includ-

ing “the right of all peoples to equality without “domination of a people by another”;
the right of all peoples to existence and self-determination; the right of all peoples
to freely dispose of “their wealth and natural resources”; and the right of all peoples
to their economic, social and cultural development.”58 These clauses had a distinctly
political meaning, for “peoples” was understood to refer either to the state, in those
states led by liberation leaders, or to indigenous peoples represented by liberation
movements, in those states under colonial or white minority rule.59
But the innovations were not supported by strong institutions. The Charter pro-
vided only a rather weak institutional setup, with only a quasi-judicial body in
charge of securing the Charter. This meant that the initial phase of the African sys-
tem was problematic. According to one commentator, between 1988 and 1992, the
Commission received on average fewer than twelve individual complaints per year, a
tendency that has continued to the present day and that suggests that the Commission
remains highly underused. The main problems were similar to those of the early
Inter-American system, namely, insufficient legalization, and a set of states with lit-
tle interest in effectively changing that status quo. The mandate was also somewhat
similar to that of the IAS Commission, namely, to promote human and peoples’ rights
(as opposed to enforcing them). It further resembles the IAS Commission in that all
states under the Charter automatically came under the Commission’s purview, and
participated in the individual petition system that the Commission determined to be
implicit in its mandate when interpreting article 55 on “other communications.” As in
the Americas, however, the individual petition at first did not play an important role.
Indeed, before the end of the Cold War, the Commission left little direct imprint on the
situation of human rights in Africa.60 But, as we will argue below, the Commission
came to function as a breeding ground for human rights activists, who set in motion
the process toward establishing an African human rights court.
Taken together, the Cold War trajectories of the three regional rights systems show
how each system, while originally drawing from the same pool of ideas, began adapting
these to its own institutional and political contexts. In Latin America and Europe, the
new human rights institutions played a key role in forging working methods unique to
their region. In Europe, the system initially developed as shown a c ontextually attuned
“legal diplomacy” that reflected the tiered commitment of the member states. Later,
however, it used the acquired legitimacy to develop a more expansive, p rogressive
58
B. H. Weston, R. A. Lukes, & K. M. Hnatt, Regional Human Rights Regimes: A Comparison and Appraisal, 20
Vand. J. Transnat’l L. 585, 610–611 (1987).
59
We thank Solomon Ebobrah for this point. See also F. Ouguergouz, The African Charter on Human and
Peoples’ Rights. A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa 249–255
(2003).
60
See, e.g., C. E. Welch, The African Commission on Human and Peoples’ Rights: A Five-Year Report and
Assessment, 14 Hum. Rts. Q. 43 (1992).
understanding of human rights; In Latin America, the result was also a kind of
diplomacy, but much less legalized and instead focused on putting political pressure
on the member states in the context of widespread violations committed by the then
dominant dictatorships. In Africa, as states agreed on the creation of a human rights

system, they put forward a new iteration of the meaning of rights which reflected
their particular history. Yet, it was initially only coupled with weak institutions.
4. The age of human rights

The close of the Cold War in 1989 led to important changes in all three regional sys-
tems. As geopolitical bipolarism receded and democracy spread in Latin America,
Eastern Europe, and Africa, the regional systems gained in membership and politi-
cal salience. The European and American systems in particular began adhering to
similar scripts. Their courts became more assertive, and began to take on attributes
typically associated with national constitutional courts. Of equal if not greater sig-
nificance, each of these two systems became more deeply embedded in the domestic
legal realm, so that its influence was felt not only through international litigation but
also through the daily decisions of domestic judges and other state actors, and even
non-state actors, who made reference to the regional case law as an authoritative
guide. The period is further marked by greater remedial specification61 and by a deeper
integration of the regimes with each other via meetings and mutual citation—and,
toward the end of the period, a degree of pushback against both of these two systems.
The African system only in part follows these general trends. The African Court was
established in 2006, and it has not yet had a broader impact. In part this is the result
of the lack of state commitment as African states have repeated the European and
Latin American histories’ reluctance with regard to accepting the key competences
of the court. Moreover, states have held it hostage to their political projects, for exam-
ple, bringing it into the African controversies over the International Criminal Court
(ICC) in Africa. As it approached its tenth year, it had issued only four decisions on the
merits.
4.1. Latin America: Democracy, judicialization, and debate

The spread of democracy in Latin America in the 1980s and 1990s at first plunged
the IAS into an identity crisis. During the authoritarian period, as described
above, the IAS had devoted itself to calling out and struggling against authoritarians’
illegal use of state violence against civilian populations. But when the Commission
tried to include criticisms of the Argentine and Uruguayan amnesty laws in its 1992
Annual Report, the states balked.62 Both amnesty laws had been passed under the new
democratic governments as a way to quell tensions that threatened their still delicate
61
A. Huneeus, Reforming the State from Afar: Reform Litigation at the Human Rights Courts, 40(1) Yale J. Int’l
L. 1 (2015). See also B. Çalı, Explaining variation in the intrusiveness of regional human rights remedies in
domestic orders, in this issue at 214.
62
Felipe Gonzales, El Sistema Interamericano de Derechos Humanos: transofrmaciones y Desafios 63, 67 (2013).
152 I•CON 16 (2018), 136–160
political transitions. In retaliation, Argentina and Uruguay asked the Inter-American

Court to issue an advisory opinion on the scope of the Commission’s powers: they
wanted the Court to decide that the Commission lacked authority to review national
legislation under the Convention. The Central American republics similarly resented

being shamed by the Commission despite the fact that the massive structural viola-
tions had ended and they had embarked on peace processes.63 It was not appropriate,
critics argued, for the Commission to exercise the same oversight of democracies as it
had over the dictatorships.64 Its role should return to that of promotion, rather than
direct protection, of human rights. In 1993, the OAS General Assembly therefore
adopted a resolution to study a reform of the IAS.
This first moment of pushback is revelatory. Despite the IAS’s success in opposing
authoritarian policies, its role in the new democratic era was up for grabs, and the
authority of its main organ, the Commission, was newly unstable. It further reveals
that the emphasis of the IAS at this time was not yet the litigation of individual cases
that would come to characterize the new era but, rather, the Commission’s reports on
state practices. Yet the stand-off also foreshadows what would come, for the critics did
not succeed; rather, with strong civil society support, the Commission emerged from
the reform with expanded powers for the new democratic era. For its part, the Court
backed the Commission. It ruled that the power of the Commission to review domestic
laws was implicit in the American Convention,65 thus laying a legal foundation for the
authority of IAS organs (itself included) to exert conventionality control.
Even as the reform debate was unfolding, the Inter-American Court was slowly
building a distinct reputation through a steady, if meager, flow of cases. Equally
important were the relationships that the Court began to establish with its domes-
tic counterparts. For if the newly elected executives were at first reluctant to share
their rights-protecting role with the IAS, this was not always true of the region’s
new and newly empowered constitutional courts. Starting in Brazil in 1998, many
states reformed or promulgated new constitutions that emphasized rights and judi-
cial review.66 Courts began to practice judicial review with more frequency, and often
chose to fortify their rulings by citing to the ACHR, and to the Inter-American Court
and Commission jurisprudence. In 1992, the Argentine Supreme Court declared that
human rights judgments were binding not only on Argentina as a whole but also on
its judiciary.67 This understanding would later be written into the 1994 Constitution.
Similarly in Colombia, the new Constitutional Court decided in 1992 that it had the
power to review legislation under human rights treaties. Other courts followed suit:
63
Id.
64
Id.
65
Certain Attributes of the Inter-American Commission on Human Rights, Advisory Opinion OC-13/93,
Inter-Am. Ct. H.R. (ser. A) No. 13 ¶¶ 27, 37 (July 16, 1993).
66
R. Uprimny, Las transformaciones constitucionales recientes en América Latina: tendencias y desafíos, in El
Derecho en America Latina: Un Mapa para el Pensamiento Jurídico del Siglo xxi 109 (César Rodríguez Garavito
ed., 2011).
67
Corte Suprema de Justicia de la Nacion [CSJN], 7/7/1992, “Ekmekdjian, Miguel Angel c/ Sofovich,
Gerardo y otros,” Fallos (1992-315-1492) (Arg.).
throughout the region judges adapted a French legal concept, the constitutional bloc,
to stand for the idea that international human rights treaties ratified by the state are
directly applicable constitutional law.68
Today, the Inter-American Court’s docket is still quite small, with sixteen judgments

issued in 2015, the same number as in 2014.69 Further, OAS states keep the Court
tightly constrained: it is among the poorest international courts in the world with a
yearly budget of $5.5 million; it meets fewer than fourteen weeks per year; and its
judges are paid roughly $6000 per year. 70 All of this, of course, inhibits the Court’s
ability to expand its docket. However, through judicial dialogue and in particular
through the constitutional bloc doctrine, the Court’s judgments are able to take on
a life of their own as authoritative guides to interpreting the American Convention:
increasingly judges and other state actors refer to the Inter-American Court’s cor-
pus of roughly 210 contentious judgments as guides for domestic policymaking and
adjudication.71
The Court itself, seemingly aware that embeddedness is the path to greater influ-
ence, declared in 2006 that all courts in states under its jurisdiction were under an
obligation to exert “conventionality control.” In other words, they must review laws
and official acts for conformity to the American Convention, using the Court’s judg-
ments as authoritative statements.72 Further, they should not apply laws that violated
the Convention. This was a bold and controversial move for several reasons. First,
the American Convention makes no explicit mention of this duty. Second, the Court
seemed to say that all judges had to exert judicial review of legislation, even in states
that had systems of concentrated, as opposed to diffuse, judicial review. Third, and
redolent of the European Court of Justice’s bolder rulings, the Court seemed to sug-
gest that the American Convention was self-executing in all states, and that domestic
judges must defer to the Inter-American Court’s interpretation of the Convention.
Not all of its interlocutors, however, embraced the Court’s expansionist moves. In
2007 the Venezuelan Supreme Court rejected two Inter-American Court judgments
as wrongly decided, and exhorted the executive to withdraw Venezuela from its juris-
diction. In 2012, President Chavez accordingly denounced the American Convention,
releasing Venezuela from the jurisdiction of the Inter-American Court. Chavez also led
the creation of two new international organizations, the Union of South American
States (UNASUR) and the Boliviaran Alliance for the Peoples of Our Americas (ALBA),
and several leaders in the region periodically argue that these new organizations
should themselves develop human rights systems, so as to eschew US influence and
68
Manuel Eduardo Góngora Mera, Inter-American Judicial Constitutionalism: On the Constitutional Rank of
Human Rights Treaties in Latin America through National and Inter-American Adjudication 162 (2011).
69
Available at http://www.corteidh.or.cr/sitios/informes/docs/ENG/eng_2015.pdf.
70
Lineamientos 2011–2015: Fortaleciendo la Justicia Interamericana, a través de un financiamiento previsible y
armónico at 17–18.
71
A. Huneeus, Constitutional Lawyers and the Inter-American Court’s Varied Authority, 79 Law & Contemp.
Probs. 179 (2015).
72
Almonacid Arellano and Others v. Chile, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154, ¶ 124 (Sept. 26, 2006).
154 I•CON 16 (2018), 136–160
the IAS.73 Further, it is not only governments on the Left that have disputes with the
IAS. Argentina, Brazil, and Colombia were among those that pushed for a reform pro-
cess in 2012–2013 that many viewed as a backlash against the system. And in 2014,
the Constitutional Court of the Dominican Republic (DR) devised a loophole through

which to single-handedly release itself from the thrall of the Inter-American Court:
it ruled that the instrument by which the executive had accepted the Inter-American
Court’s jurisdiction in 1999 was constitutionally flawed, and thus the DR was not
now—and had never been—under its jurisdiction.74 Thus, the Court’s membership
has shrunk in recent years. Nor does it look likely to grow any time soon: it seems
unlikely that Canada, the USA, or the missing Caribbean OAS nations will accept its
jurisdiction. Rather, the IAS has become primarily a Latin American system, although
critics point out that the USA still exerts considerable influence through the OAS,
shaping the institutions which bind the Latin American states even as it fails to submit
itself to them.
There is some cause to worry that the IAS is in peril, in particular as its voluntary
funding streams began to dwindle in 2016. The alternative reading, however, is that
the moments of backlash are symptomatic of its growing power, and part of an ongo-
ing dialogue between states, IAS bodies and civil society over the evolution of human
rights in the Americas. Further, regardless of whether all courts embrace the doctrine
of conventionality control, it seems clear that the jurisprudence of the Inter-American
Court plays an important role in Latin America, and has contributed to fostering a dis-
course on constitutional rights shared across the region’s courts. Some even refer to
this as a ius commune constitucional americano.75
4.2. Europe: Expansion, national embeddedness, and backlash

At first glance the European system follows the path of increased embeddedness and
resulting conflicts with member states seen in the IAS. After the end of the Cold War,
the ECtHR, however, started to deliver a significantly higher number of judgments
per year.76 In 2013 alone, the ECtHR adjudicated some 3,661 applications in 916
judgments. This, in itself, sets the European court apart from the other two courts
scrutinized in this article. The obvious geopolitical context for explaining this change
is the transformation of Europe following the end of the Cold War. The Council of
Europe (CoE) welcomed practically all Central and Eastern European countries into
the system: from 1990 through 2007 twenty new member states, including Russia,
joined the CoE and the ECtHR. The integration of new member states with recently
refurbished and still incomplete legal and political systems posed a serious challenge
73
Available at http://www.eluniverso.com/noticias/2015/01/31/nota/4502526/rafael-correa-propone-crear-
corte-latinoamericana-derechos-humanos.
74
A. Huneeus & D. Shelton, Sentencia TC 0256-14 C of the Dominican Republic Constitutional Court, 109(4)
Am. J. Int’l L. 866 (2015).
75
Armin von Bogdandy, Ius Constitutionale Commune en América Latina: Observations on Transformative
Constitutionalism, 109 Am. J. Int’l L. (Unbound) 109 (2015).
76
A detailed account on the evolution of the Court’s decisions is found in Madsen, supra note 8, at 79.
to the Court. As it strived to maintain and expand the relatively high human rights
standards set in the 1980s and 1990s it became involved in the democratization pro-
cesses in Eastern Europe.
The simultaneous institutional reform of the Court both facilitated and impaired

the situation. Protocol No. 11 (1998) provided that the ECtHR was to be a perma-
nent IC with compulsory jurisdiction and compulsory right to individual petition.
The Commission, which previously had screened applications and represented indi-
viduals before the Court, was discontinued. Thereby, the European system started
departing from the dominant model of regional human rights. Further, it is unlikely
to be replicated in any of the two other regions studied here due to the docket crises it
has triggered. To respond to the increased backlog of the new permanent court, new
additional protocols were drafted in the 2000s. The picture emerging was, however,
that institutional reform could not keep up with the pace of claims filed and a serious
backlog of cases was accumulated. In 2011 the ECtHR faced an all-time high of some
150,000 pending cases.
Another important change happened throughout the 1990s which resembles
more the Latin American situation: more and more European countries began to
incorporate the Convention into national law.77 This had the immediate effect that
the influence of the ECtHR was now not limited to individual cases against specific
member states. Instead, the Court and its jurisprudence came to resemble more that
of the European Court of Justice in terms of spinning an ever-closer transnational
integration of national and international law and politics on human rights. Across
Europe there was significant increase in references to the Convention by national law-
yers and, although to a lesser extent, judges. In more institutional terms this meant
that the ECtHR started acting as a de facto constitutional court as it became the last
instance for human rights claims. This new transnational constitutional protection of
human rights in Europe resembles to a large extent the developments also identified
in Latin American countries where the discourse on neo-constitutionalism also inte-
grated regional human rights into its construction. The difference, however, was that
in Europe the embeddedness was mainly driven by legislative acts—in Latin America
by national courts and the Inter-American Court.
This ambitious construction of a nationally embedded European human rights sys-
tem with a single permanent court at the pinnacle almost immediately faced problems
and eventually backlash. The challenge derived from the enlargement was first reg-
istered in a steadily growing number of applications coming from the new member
states. But what put most stress on the system was that it had to face an entirely differ-
ent challenge, namely, that for the first time some member states were de facto at war
with each other. From 2004 the court was faced with politically very delicate matters
in a series of judgments against Russia derived from the Russia’s conflicts with neigh-
boring countries such as Georgia, Chechnya, Moldova (Transnistria), and Ukraine,
77
In most countries, this incorporation of the Convention required a specific legislative act. For an overview, see
Helen Keller & Alec Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems (1998).
156 I•CON 16 (2018), 136–160
most of which also produced inter-state complaints before the Court. The Russian
response consisted both of non-compliance and loud political discontent.
But challenges to the ECtHR did not come only from the newer states. The Court
has also became engaged in a growing conflict with the United Kingdom, a key coun-

try since the genesis of the Convention.78 Like other member states, Britain had with
the 1998 Human Rights Act incorporated the Convention and the state had gener-
ally faced a decline in adverse judgments from Strasbourg. But in the aftermath of
the war on terror, the ECtHR’s principled defense of the rights of radical Islamists in
deportation cases created discontent. A series of cases where the Court found that a
British blanket ban on appeals of life sentences violate the Convention also caused
consternation. Followed closely by the media, these cases caused a growing choir of
Conservatives to question the legitimacy of judicial override of democratically legiti-
mate positions taken in parliament.79 This stand-off between Strasbourg and British
Conservatives became the direct background to the reform process codified in the
Brighton Declaration (2012).
From Protocol No. 11 to the Brighton Declaration, every additional protocol had
aimed at rationalizing the ECHR system, mainly to fix the backlog problem. The
Brighton Declaration clearly stands out in this regard as it openly raises the polit-
ical question of the future of the system, and includes a number of negative com-
ments on the quality of the judges and their judgments.80 The immediately following
Protocol Nos. 15 and 16 both contained elements designed for rebalancing the system
in favor of national law and politics.81 And these protocols, as well as the Brighton
Declaration, were accepted by all forty-seven member states of the system. The Court
itself has arguably also shown greater deference to national law and politics in a num-
ber of recent decisions involving the United Kingdom.82 This might indicate that the
rights-oriented jurisprudence that the Court carefully distilled beginning in the late
1970s is being attenuated by new forms of strategic judging reminiscent of the legal
diplomacy of the early ECtHR.
Most explanations of this pushback against the Court have focused on the fact that
the Court is in a difficult situation due to the continuous case overload. But the push-
back might also reflect broader changes at the geopolitical level. The post-Cold war era
of democratization and resulting honeymoon of human rights is coming to an end
and a new world order less attuned to the liberal project of international law seems
to be emerging. With member states as different as Russia and the United Kingdom
78
As argued in Madsen, supra note 8, at 79.
79
See, e.g., David Davis, Britain Must Defy the European Court of Human Rights on Prisoner Voting as Strasbourg
Is Exceeding Its Authority, in The European Court of Human Rights and Its Discontents: Turning Criticism into
Strength (Spyridon Flogaitis et al. eds., 2013).
80
Brighton Declaration ¶¶ 23, 25c (2012).
81
Some elements, however, also empower the Court. Laurence R. Helfer, Redesigning the European Court of
Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, 19 Eur.
J. Int’l L. 125 (2008).
82
See, e.g., RMT v. United Kingdom, App. No. 31045/10, 366 Eur. Ct. H.R. (2014); Animal Defenders
v. United Kingdom, App. No. 48876/08, 57 Eur. H.R. Rep. 21 (2013); A, B and C v. Ireland, App. No.
25579/05, Eur. Ct. H.R. (2010).
now both repositioning themselves away from the integrated core Europe, the ECHR
project is faced with the challenge of neo-sovereigntism and nationalism, a subject we
will return to in the conclusion.

4.3. Africa: The judicialization of human and peoples’ rights
The very same geopolitical transformations and democratization movements that
spurred the evolution of the human rights systems in Europe and Latin America
over the past two and a half decades also had a major impact in Africa. The African
Commission became more active and gained authority, particularly with respect to
civil society. It also began to be more assertive in its concluding observations, as well as
engaging in more progressive interpretation of the Charter. Further, the Commission’s
general profile in post-Cold War African landscape was arguably boosted by its oppo-
sition to the Abacha dictatorship of Nigeria (1993–1998): given that Nigeria’s turn
toward authoritarian rule took place in the midst of democratization, the Commission
was able to garner some support from other states. This human rights diplomacy, rem-
iniscent of the early Inter-American Commission’s handling of political crises, gave
it legitimacy. Yet, the African Commission has not been able to leverage this instance
and transform itself into a regional actor in the same way. And while more states com-
plied with the African Commission’s demands for filing state reports, compliance with
the Commission’s conclusions has remained problematic.
The other important change was the creation of the African human rights court.
The original Banjul Charter did not provide for a human rights court. The idea was,
however, revitalized in the aftermath of the end of the Cold War and gained momen-
tum as “[d]emocratization swept the continent . . . [and] the proliferation of new
international judicial mechanisms [linked] the adoption of the Protocol to a global
trend.”83 And whereas the idea originally was closely associated with Western activ-
ism, the post-1989 proposal came to a higher degree from African activists, many of
whom, however, were working for international NGOs based out of Europe and the
USA.84 The idea was particularly debated at the pre-session workshops and sessions
of the African Commission where an ever greater number of NGOs gained observer
status—by 1994 some 140.85 The same year the Assembly of Heads of States of the
Organization for African Unity (OAU) authorized the establishment of a committee to
consider means for enhancing the efficiency of the Commission, particularly by the
possible creation of a court.
The organization that had tabled the first proposal for a court in 1961, the Geneva-
based International Commission of Jurists, once again played a key role, producing
the first draft protocol presented in 1995, where government lawyers met. A long
series of subsequent meetings eventually produced the Protocol on the establishment
of an ACtHPR presented in 1998, and immediately signed by fifty-two member states
83
Viljoen, supra note 57, at 9.
84
M. Debos, La création de la Cour africaine des droits de l’Homme et des peuples. Les dessous d’une ingénierie
institutionnelle multicentrée, 60 Cultures et Conflits 159, 161 (2005).
85
Viljoen, supra note 57, at 8.
158 I•CON 16 (2018), 136–160
of the OAU. The ACtHPC was well-received both by attending governments and by the
international community.86 It was seen as a collaborative effort that—despite having
borrowed ideas from the two other regional human right courts and despite having
involved international NGOs and Western-sponsored African NGOs—was mainly pro-

duced by Africans.87
As in the other two systems, the states created a tiered system that allowed states to
choose their level of commitment, resulting in a protracted process of institutionaliza-
tion. At the Nouakchott 1997 meeting, it had been decided to make individual access
optional and set the number of ratifications required for the Court coming into exist-
ence to fifteen, which overall slowed down the process. The Protocol establishing the
Court eventually came into force in 2004. To date twenty-nine of the African Union’s
fifty-four member states have ratified it, but only seven countries have accepted the
right of individual access to the court. As in the early European and American sys-
tems, the largest powers are strikingly absent in this regard.
The ACtHPR started as an operational court in 2007. Institutionally, the system
faced challenges very similar to those of both the Inter-American and the original
pre-Protocol No. 11 European court.88 The main access point to the African Court for
individuals is via the Commission.89 In this regard the pattern observed first in Europe
and later in Latin America of commissions reluctant to refer cases seems to have been
repeated: the ACtHPR has only seen few such referrals, and no referrals of cases to be
decided on the merits.90 Although the Court has only delivered judgments in a handful
of cases so far, it has ventured into heated topics such as freedom of expression and
reparations and (non-)compliance (Mtikila v. Tanzania).91 Overall, the constraining
factors —notably, the lack of ratifications of its jurisdiction and of the right of direct
access by individuals—has limited its role until now.
However, the African context has also provided the conditions for an important
innovation in regional rights protection. The ACtHPR is emerging in the midst of an
already judicialized regional space. Africa has more international courts than any
other continent, and the subregional trade courts have in some cases adjudicated
human rights. Notably the ECOWAS Court of Justice has had express human rights
competence since 2005, and the East African Court of Justice has creatively carved
out a space for rule of law litigation, and may grow to include an express human
86
Udombana, supra note 56, at 46.
87
B. Kioko, The Road to the African Court of Human and Peoples’ Rights. Paper presented at African Society
of International and Comparative Law—Proceedings of the Tenth Annual Conference, Addis Ababa, 70,
Aug. 3–5, 1998.
88
There is, however, the option for filing an individual application directly to the Court but this has only
been accepted by one member state so far.
89
In some ways the African system is a blend of the others: it allows for indirect access through the
Commission, as in Latin America, but also for direct individual access for states that so choose, as in the
pre-1998 European system.
90
The home page of the ACtHPR lists four such referrals (available at http://www.african-court.org/en/
index.php/2012-03-04-06-06-00/referred-cases).
91
Tanganyika Law Society, Legal and Human Rights Centre, and Reverend Christopher R. Mtikila v. United
Republic of Tanzania, App. Nos. 009/2011 and 011.2011, Judgment of June 14, 2013.
rights jurisdiction in the future.92 The Tribunal of the Southern African Development
Community (SADC) also ventured into human rights before its suspension.
Arguably the ACtHPR’s slow process of institutionalization has indirectly contrib-
uted to the development of these alternative human rights venues, many of which can

be accessed by individuals without first exhausting domestic remedies. Indeed, Africa
may be creating a novel form of complementarity, with the subregional courts acting
as either alternatives to the ACtHPR or first instance courts of the larger regional con-
tinental protection of human rights, with the ACtHPR in principle at the apex. The
risk is, however, that the the ACtHPR becomes less relevant as these other courts will
end up taking the bulk of the cases, resulting in further delay in its institutionalization.
The emergence of the International Criminal Court (ICC) is another contextual fac-
tor that is potentially reshaping the ACtHPR’s trajectory in a different direction than
the two other systems. Whereas Africans were keen participants at the drafting of the
Rome Statute establishing the ICC and generally welcomed the ad hoc war tribunals
for Rwanda and Sierra Leone, the AU has now become more wary of the power of
international courts and anxious to find regional alternatives. Indeed, there is a proto-
col in existence that aims to restructure the ACtHPR so that it includes a more general
chamber (trade and state conflict), a human rights chamber (the currently existing
court), and a criminal chamber, although the latter, importantly, will not hear cases
against acting heads of state or government, thereby deviating from the ICC.93 Such an
African mega court is not without problems for the ACtHPR as it might jeopardize the
steps already taken to judicialize and legalize human rights in Africa at the regional
level. Moreover, the ACtHPR is not keen to share its premises with an international
criminal law chamber where the cases very likely will be highly controversial. Right
now developments can go in either direction, all depending on the AU’s final stance
on the ICC.
5. Conclusion: The twilight of human rights?

Our approach of comparing the trajectories of the three regional human rights sys-
tems in three distinct historical periods contributes several insights that are hidden
when we view the evolution of each regional system at a time. First, we are able to
show how the three have followed common institutional and legal models and ideas
that emerged at the level of world society, and were in place as the first regional institu-
tions were debated and imagined. Thus, while it is the case that the European human
rights system became influential in its region earlier, all three systems were heir to
models imagined during the inter-Cold War period. Further, their emergence cannot
be explained as the product of strategic action or functional imperative alone: despite
great differences in their contexts, the states of each region drew on shared ideas that
92
S. T. Ebobrah, Litigating Human Rights Before Sub-Regional Courts in Africa: Prospects and Challenges, 17
Afr. J. Int’l & Comp. L. 79 (2009).
93
C. B. Murungu, Towards a Criminal Chamber in the African Court of Justice and Human Rights, 9 J. Int’l Crim.
Just. 9, 1067 (2011).
160 I•CON 16 (2018), 136–160
have come to be widely accepted but articulated slightly differently due to regional
contextual constraints.
Second, this approach throws into relief factors that helped shape the variation that
nonetheless exists among the three systems. In particular, each system’s distinct posi-

tion within global politics and particularly the geopolitics before, during, and after the
Cold War shaped the evolution of its institutions. Notably, the close of the Cold War
led to an initial convergence between the European and Inter-American systems, both
of which became more judicialized and gained influence in national law. In Africa
processes of democratization also led to the creation of a human rights court. But by
the time the Court came into being in 2007, it did so in an already judicialized inter-
national space. This has provided a novel context for its evolution in which multiple
international courts are interpreting and developing the Banjul Charter at once—a
scenario that significantly deviates from the other two systems.
Finally, these findings also help us consider the future. Brexit and the Trump
presidency seem to give greater force to the claim of some scholars that the age of
human rights is coming to an end. However, these scholars tend to be the same ones
who emphasize the role of the United States, and the pro-rights pivot of the Carter
administration in particular, as launching the human rights revolution.94 From their
perspective, it follows from the fact that the USA was important in ushering in the
global human rights revolution that it will also play a role in its end. Our alterna-
tive history, which emphasizes regional institutions and the contributions of Africa,
Latin America, and Europe, suggests a less apocalyptic future. The regional systems
long preceded the 1970s US rights pivot, and will likely outlast it. Regional human
rights institutions have become deeply embedded and highly institutionalized. As we
see in the ongoing reforms of the ECtHR and the resulting rebalancing of the field of
European human rights, such institutions are capable of adapting to their political
context, including a context in which the Anglo-American world plays a lesser role.
94
See Moyn, supra note 2; S. Hopgood, The Endtimes of Human Rights (2013).

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Between universalism and

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* Associate Professor of Law, University of Wisconsin Law School. Email: huneeus@wisc.edu.

I•CON (2018), Vol. 16 No. 1, 136–160 doi:10.1093/icon/moy011

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2. Declaring human rights in the aftermath of

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2.1. The European Convention and “free Europe”

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2.2. Africa and the European Convention

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3. Forging regional human rights institutions during the

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3.1. Human rights diplomacy in the Americas

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3.2. Europe: From legal diplomacy to human rights law

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3.3. Africa: Human rights in the post-colonial state

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Americas. Although these innovations are often construed as reflecting a distinctly

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4. The age of human rights

4.1. Latin America: Democracy, judicialization, and debate

political transitions. In retaliation, Argentina and Uruguay asked the Inter-American

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4.2. Europe: Expansion, national embeddedness, and backlash

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5. Conclusion: The twilight of human rights?

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