Books by Thomas Antkowiak
Oxford University Press, 2017
The book offers a thorough, critical, and accessible analysis of the American Convention on H... more The book offers a thorough, critical, and accessible analysis of the American Convention on Human Rights, the main human rights treaty of the Americas. To do so, we closely review the jurisprudence of the two institutions charged with interpreting the Convention—the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights—with emphasis on the Court’s binding judgments. We focus on the rights most developed by the Court and Commission: the rights to equality, life, humane treatment, personal liberty, property, due process and judicial protection, as well as the freedom of expression and reparations. Throughout the book, we examine this case law with a victim-centered lens—identifying key jurisprudential developments, discussing critical areas that lack consistency and rigor, and proposing alternative conceptual approaches.
Each book chapter contains: 1) an Introduction to compare the Convention right’s formulation with equivalent rights in other major international and regional treaties; 2) a Background section to consider the right’s negotiation history; 3) a Scope of Protection section to analyze the right’s provisions, paragraph by paragraph or topic by topic; and 4) a Limitations section, if applicable, to study any limitations to the right. In addition, the book’s Introduction presents an up-to-date overview of the dynamic Inter-American Human Rights System, discussing the System’s legal instruments, major institutions, significant impact, critical developments, and current challenges.
Papers by Thomas Antkowiak
The Inter-American Court of Human Rights has now developed a significant jurisprudence on indigen... more The Inter-American Court of Human Rights has now developed a significant jurisprudence on indigenous peoples, far more extensive than the case law of the other regional human rights tribunals. Also, unlike the various United Nations institutions that promote indigenous rights, the Inter-American Court issues binding and detailed judgments. As a result, the Court has become a global leader in the adjudication and redress of indigenous claims. For this reason, this first close and critical examination of the Court’s reparations for indigenous peoples is vital.
With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other powerful measures. Generally, these pioneering remedies have directly responded to victims’ preferences for restoration. In contrast, the Court’s monetary reparations frequently disappoint. Examples include token sums ordered for plundered ancestral resources and a neglect of individualized compensation.
By undercompensating indigenous petitioners in these ways, the Court fails to recognize them as full-fledged rights bearers. Fully entitled to collective and individual rights, they accordingly require appropriate remedies on both communal and individual levels. This critique is urgent because indigenous cases continue to flow to the Court, and its criteria are increasingly adopted by UN authorities, regional human rights institutions, and national courts.
Ultimately, this Article urges the Court to commit to a victim-centered approach for monetary damages, as it generally has done for non-monetary remedies. Once rights violations are proven, if the Court does not reasonably respond to the way victims want to be restored, it will not adequately redress them. As a result, the Court will betray its mandate as a human rights tribunal and undermine the individual and collective rights of indigenous peoples.
This essay examines the trailblazing approach to communal property in the Inter-American human ri... more This essay examines the trailblazing approach to communal property in the Inter-American human rights system, and then applies that legal framework to the distressing Nicaraguan initiative to construct a trans-oceanic canal. The estimated $50 billion megaproject started initial development in December of 2014, and seriously threatens the lands and livelihoods of the indigenous and Afro-Caribbean communities in its path. I conclude that, if Nicaragua proceeds with the Canal and several of its associated projects, the State will clearly violate the communities’ property rights, among other key rights and freedoms. As a result, Nicaragua, in accord with its international legal obligations, should halt the Canal initiative until it secures the free, prior, and informed consent of the affected populations.
This chapter examines how the Inter-American Court of Human Rights has addressed economic, social... more This chapter examines how the Inter-American Court of Human Rights has addressed economic, social and cultural rights. First, I briefly consider the primary Inter-American treaties on the subject: the American Convention on Human Rights, the Protocol of San Salvador, and the Charter of the Organization of American States. Second, I assess how the Inter-American Court has interpreted those instruments. While the Tribunal has increasingly recognized economic, social and cultural rights through various means, Article 26 of the American Convention on Human Rights -- the Convention’s most explicit provision on this category of rights -- has largely been avoided. I consider reasons for this avoidance, and then evaluate the alternative means the Court has used to protect economic, social and cultural rights.
University of Pennsylvania Journal of International Law, Vol. 35, No. 1, 2014
In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial deci... more In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This Article considers how the Sarayaku judgment impacts the Court’s case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now connects a number of key indigenous rights to the right to property, Article 21 of the American Convention on Human Rights. When traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights.
For significant reasons, however, the right to property cannot serve as the conceptual stronghold for indigenous peoples’ survival and development. First, the Court’s approach limits the autonomy of indigenous peoples and their capacity for change. Second, the right to property inherently has difficulty providing even basic protection for ancestral lands because domestic and international law grants states wide latitude to interfere with property. Though the Court has attempted to create special ‘safeguards’ for indigenous lands and resources, they have proven inadequate.
In response, I urge a distinct way for the Court to conceptualize indigenous rights. The right to property must be subsumed by, and anchored to, a stronger configurative principle to defend indigenous peoples’ livelihood. Other human rights regimes offer the right to self-determination or specific minority protections that can safeguard indigenous rights. The relevant Inter-American legal instruments fail to establish such principles. As a result, I propose that a broad right-to-life concept, known as vida digna in the Court’s case law, serve as the new structural basis for an array of essential indigenous norms — including cultural integrity, nondiscrimination, lands and resources, social development, and self-government.
More than ever, international attention has been directed to the needs of those who have suffered... more More than ever, international attention has been directed to the needs of those who have suffered human rights violations. Nevertheless, the chasm between what victims want and what they obtain is still vast. The Inter-American Court of Human Rights, unlike most tribunals, has sought to narrow this gap by ordering remedies that respond to victims’ demands for recognition, restoration, and accountability.
In contrast, for decades the European Court of Human Rights has applied a restrictive remedial model. The European Court, inordinately concerned about its institutional integrity, curtails remedies — often delivering only declaratory relief and monetary damages. Since the Inter-American model is far more oriented towards the expressed preferences of victims, I will designate it “victim-centered”, while I conceptualize the European approach as “cost-centered”.
This Article will consider the development of the victim-centered approach in international law, test its feasibility, and then urge its application — by both the European Court and nascent human rights bodies searching for adequate remedial principles. To demonstrate the viability of this model, I will present a detailed analysis of state compliance with the remedies of the Inter-American Court.
I conclude that the European Court, the African Court on Human and Peoples’ Rights, and the International Criminal Court have recently made progress towards a victim-centered paradigm. But the tribunals still have much terrain to cover, if they choose to follow the trail blazed by the Inter-American Court. The Inter-American Court has been able to convince states to implement its demanding remedies without losing their allegiance. While its approach is certainly not perfect, its record shows that a victim-centered model is attainable for international courts.
A sustained reflection upon remedial obligations and possibilities is particularly necessary at t... more A sustained reflection upon remedial obligations and possibilities is particularly necessary at this juncture in the development of international law, where important mechanisms with reparative functions have recently sprung up around the world: the International Criminal Court, the African Court of Human Rights, and several national schemes, as a result of proliferating transitional justice initiatives. This Article argues for a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition.
The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding powers that has consistently ordered equitable remedies in conjunction with compensation. The Article next considers the strengths and limitations of the Inter-American Tribunal's unique reparative approach, which has been neglected in the literature despite significant evolution in recent years. The following section attempts to refine the Court's normative model by proposing a participative methodology, consisting in procedural reforms, to calibrate remedies more precisely to a victim's situation and necessities. Finally, the work discusses how the Court's victim-conscious balance of non-monetary orders and economic compensation, which has revamped standards for redress in international law, should be incorporated to a greater extent into the remedial approaches of other international courts and domestic institutions.
On June 15, 2005, the Inter-American Court issued its judgment in Moiwana Village v. Suriname, wh... more On June 15, 2005, the Inter-American Court issued its judgment in Moiwana Village v. Suriname, which held Suriname responsible for numerous human rights violations and ordered several remedial measures. In a separate opinion, one of the Tribunal's veteran judges, Antonio Cancado-Trindade, wrote that the case "raises issues of great transcendence." Certainly, the decision illustrates several of the Court's latest jurisprudential developments, and navigates a few rising socio-political tides in South and Central America.
This brief essay seeks to demonstrate how the Moiwana case: a) presents factual situations that are increasingly common before the Court; b) continues to develop key legal constructions in response to such facts; c) foreshadows a significant evolution with respect to elements of the Tribunal's more "traditional" jurisprudence; and d) reflects, nevertheless, a prevailing caution regarding other aspects of legal analysis.
La Convención Americana sobre Derechos Humanos Comentada (Commentary on the American Convention on Human Rights), Konrad-Adenauer Foundation (2014) , 2014
Estos dos capítulos respectivamente examinan: 1) el Principio de Legalidad y de Retroactividad de... more Estos dos capítulos respectivamente examinan: 1) el Principio de Legalidad y de Retroactividad del artículo 9 de la Convención Americana sobre Derechos Humanos; y 2) el Derecho a Indemnización del artículo 10 de la misma Convención. Los capítulos buscan recopilar, analizar y criticar la jurisprudencia interamericana sobre estos principios. Además, brevemente comparan dichos principios y derechos con la jurisprudencia correspondiente del Tribunal Europeo y de las Naciones Unidas.
Por lo general, lo más frecuente es que los tribunales nacionales e internacionales, en casos de ... more Por lo general, lo más frecuente es que los tribunales nacionales e internacionales, en casos de abusos a los derechos humanos, simplemente declaren violaciones y otorguen una indemnización económica. Sin embargo, la Corte Interamericana en los últimos 15 años viene rompiendo esquemas en el Derecho Internacional, liderando un movimiento que utiliza un concepto mucho más integral de reparación. A pesar de dichos desarrollos importantes, sus aportes en este sentido no han recibido suficiente atención en el mundo académico.
En el presente ensayo, yo quisiera presentar aspectos importantes de la jurisprudencia de la Corte Interamericana en materia de reparaciones y proponer, a la vez, que otros tribunales incorporen en mayor grado su modelo, en el que se enfatiza los beneficios de las reparaciones no pecuniarias.
En los últimos años, los países latinoamericanos han explotado sus recursos naturales de una mane... more En los últimos años, los países latinoamericanos han explotado sus recursos naturales de una manera sin precedentes. Muchos de estos recursos no sólo se encuentran en territorios indígenas, sino que además son esenciales para la supervivencia de las comunidades indígenas. Como consecuencia, éstas han intentado defender sus tierras y sus recursos, y los derechos sobre ellos, acudiendo cada vez con mayor frecuencia a los mecanismos internacionales de protección de los derechos humanos.
Este artículo resumirá algunos de los aspectos más importantes que surgen del marco legal desarrollado por el Sistema Interamericano de Protección de los Derechos Humanos, especialmente en las sentencias de la Corte Interamericana de Derechos Humanos. Además, cuando el espacio lo permita, se harán breves referencias a los parámetros similares que pueden encontrarse en el Sistema Universal de las Naciones Unidas.
... en las Américas: marco legal internacional Thomas Antkowiak y Alejandra Gonza p2 Opciones del... more ... en las Américas: marco legal internacional Thomas Antkowiak y Alejandra Gonza p2 Opciones del derecho ambiental internacional para proteger los derechos de los pueblos indígenas Astrid Puentes Riaño p6 Consulta, consentimiento y veto María Clara Galvis Patiño p11 El ...
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Books by Thomas Antkowiak
Each book chapter contains: 1) an Introduction to compare the Convention right’s formulation with equivalent rights in other major international and regional treaties; 2) a Background section to consider the right’s negotiation history; 3) a Scope of Protection section to analyze the right’s provisions, paragraph by paragraph or topic by topic; and 4) a Limitations section, if applicable, to study any limitations to the right. In addition, the book’s Introduction presents an up-to-date overview of the dynamic Inter-American Human Rights System, discussing the System’s legal instruments, major institutions, significant impact, critical developments, and current challenges.
Papers by Thomas Antkowiak
With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other powerful measures. Generally, these pioneering remedies have directly responded to victims’ preferences for restoration. In contrast, the Court’s monetary reparations frequently disappoint. Examples include token sums ordered for plundered ancestral resources and a neglect of individualized compensation.
By undercompensating indigenous petitioners in these ways, the Court fails to recognize them as full-fledged rights bearers. Fully entitled to collective and individual rights, they accordingly require appropriate remedies on both communal and individual levels. This critique is urgent because indigenous cases continue to flow to the Court, and its criteria are increasingly adopted by UN authorities, regional human rights institutions, and national courts.
Ultimately, this Article urges the Court to commit to a victim-centered approach for monetary damages, as it generally has done for non-monetary remedies. Once rights violations are proven, if the Court does not reasonably respond to the way victims want to be restored, it will not adequately redress them. As a result, the Court will betray its mandate as a human rights tribunal and undermine the individual and collective rights of indigenous peoples.
For significant reasons, however, the right to property cannot serve as the conceptual stronghold for indigenous peoples’ survival and development. First, the Court’s approach limits the autonomy of indigenous peoples and their capacity for change. Second, the right to property inherently has difficulty providing even basic protection for ancestral lands because domestic and international law grants states wide latitude to interfere with property. Though the Court has attempted to create special ‘safeguards’ for indigenous lands and resources, they have proven inadequate.
In response, I urge a distinct way for the Court to conceptualize indigenous rights. The right to property must be subsumed by, and anchored to, a stronger configurative principle to defend indigenous peoples’ livelihood. Other human rights regimes offer the right to self-determination or specific minority protections that can safeguard indigenous rights. The relevant Inter-American legal instruments fail to establish such principles. As a result, I propose that a broad right-to-life concept, known as vida digna in the Court’s case law, serve as the new structural basis for an array of essential indigenous norms — including cultural integrity, nondiscrimination, lands and resources, social development, and self-government.
In contrast, for decades the European Court of Human Rights has applied a restrictive remedial model. The European Court, inordinately concerned about its institutional integrity, curtails remedies — often delivering only declaratory relief and monetary damages. Since the Inter-American model is far more oriented towards the expressed preferences of victims, I will designate it “victim-centered”, while I conceptualize the European approach as “cost-centered”.
This Article will consider the development of the victim-centered approach in international law, test its feasibility, and then urge its application — by both the European Court and nascent human rights bodies searching for adequate remedial principles. To demonstrate the viability of this model, I will present a detailed analysis of state compliance with the remedies of the Inter-American Court.
I conclude that the European Court, the African Court on Human and Peoples’ Rights, and the International Criminal Court have recently made progress towards a victim-centered paradigm. But the tribunals still have much terrain to cover, if they choose to follow the trail blazed by the Inter-American Court. The Inter-American Court has been able to convince states to implement its demanding remedies without losing their allegiance. While its approach is certainly not perfect, its record shows that a victim-centered model is attainable for international courts.
The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding powers that has consistently ordered equitable remedies in conjunction with compensation. The Article next considers the strengths and limitations of the Inter-American Tribunal's unique reparative approach, which has been neglected in the literature despite significant evolution in recent years. The following section attempts to refine the Court's normative model by proposing a participative methodology, consisting in procedural reforms, to calibrate remedies more precisely to a victim's situation and necessities. Finally, the work discusses how the Court's victim-conscious balance of non-monetary orders and economic compensation, which has revamped standards for redress in international law, should be incorporated to a greater extent into the remedial approaches of other international courts and domestic institutions.
This brief essay seeks to demonstrate how the Moiwana case: a) presents factual situations that are increasingly common before the Court; b) continues to develop key legal constructions in response to such facts; c) foreshadows a significant evolution with respect to elements of the Tribunal's more "traditional" jurisprudence; and d) reflects, nevertheless, a prevailing caution regarding other aspects of legal analysis.
En el presente ensayo, yo quisiera presentar aspectos importantes de la jurisprudencia de la Corte Interamericana en materia de reparaciones y proponer, a la vez, que otros tribunales incorporen en mayor grado su modelo, en el que se enfatiza los beneficios de las reparaciones no pecuniarias.
Este artículo resumirá algunos de los aspectos más importantes que surgen del marco legal desarrollado por el Sistema Interamericano de Protección de los Derechos Humanos, especialmente en las sentencias de la Corte Interamericana de Derechos Humanos. Además, cuando el espacio lo permita, se harán breves referencias a los parámetros similares que pueden encontrarse en el Sistema Universal de las Naciones Unidas.
Each book chapter contains: 1) an Introduction to compare the Convention right’s formulation with equivalent rights in other major international and regional treaties; 2) a Background section to consider the right’s negotiation history; 3) a Scope of Protection section to analyze the right’s provisions, paragraph by paragraph or topic by topic; and 4) a Limitations section, if applicable, to study any limitations to the right. In addition, the book’s Introduction presents an up-to-date overview of the dynamic Inter-American Human Rights System, discussing the System’s legal instruments, major institutions, significant impact, critical developments, and current challenges.
With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other powerful measures. Generally, these pioneering remedies have directly responded to victims’ preferences for restoration. In contrast, the Court’s monetary reparations frequently disappoint. Examples include token sums ordered for plundered ancestral resources and a neglect of individualized compensation.
By undercompensating indigenous petitioners in these ways, the Court fails to recognize them as full-fledged rights bearers. Fully entitled to collective and individual rights, they accordingly require appropriate remedies on both communal and individual levels. This critique is urgent because indigenous cases continue to flow to the Court, and its criteria are increasingly adopted by UN authorities, regional human rights institutions, and national courts.
Ultimately, this Article urges the Court to commit to a victim-centered approach for monetary damages, as it generally has done for non-monetary remedies. Once rights violations are proven, if the Court does not reasonably respond to the way victims want to be restored, it will not adequately redress them. As a result, the Court will betray its mandate as a human rights tribunal and undermine the individual and collective rights of indigenous peoples.
For significant reasons, however, the right to property cannot serve as the conceptual stronghold for indigenous peoples’ survival and development. First, the Court’s approach limits the autonomy of indigenous peoples and their capacity for change. Second, the right to property inherently has difficulty providing even basic protection for ancestral lands because domestic and international law grants states wide latitude to interfere with property. Though the Court has attempted to create special ‘safeguards’ for indigenous lands and resources, they have proven inadequate.
In response, I urge a distinct way for the Court to conceptualize indigenous rights. The right to property must be subsumed by, and anchored to, a stronger configurative principle to defend indigenous peoples’ livelihood. Other human rights regimes offer the right to self-determination or specific minority protections that can safeguard indigenous rights. The relevant Inter-American legal instruments fail to establish such principles. As a result, I propose that a broad right-to-life concept, known as vida digna in the Court’s case law, serve as the new structural basis for an array of essential indigenous norms — including cultural integrity, nondiscrimination, lands and resources, social development, and self-government.
In contrast, for decades the European Court of Human Rights has applied a restrictive remedial model. The European Court, inordinately concerned about its institutional integrity, curtails remedies — often delivering only declaratory relief and monetary damages. Since the Inter-American model is far more oriented towards the expressed preferences of victims, I will designate it “victim-centered”, while I conceptualize the European approach as “cost-centered”.
This Article will consider the development of the victim-centered approach in international law, test its feasibility, and then urge its application — by both the European Court and nascent human rights bodies searching for adequate remedial principles. To demonstrate the viability of this model, I will present a detailed analysis of state compliance with the remedies of the Inter-American Court.
I conclude that the European Court, the African Court on Human and Peoples’ Rights, and the International Criminal Court have recently made progress towards a victim-centered paradigm. But the tribunals still have much terrain to cover, if they choose to follow the trail blazed by the Inter-American Court. The Inter-American Court has been able to convince states to implement its demanding remedies without losing their allegiance. While its approach is certainly not perfect, its record shows that a victim-centered model is attainable for international courts.
The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding powers that has consistently ordered equitable remedies in conjunction with compensation. The Article next considers the strengths and limitations of the Inter-American Tribunal's unique reparative approach, which has been neglected in the literature despite significant evolution in recent years. The following section attempts to refine the Court's normative model by proposing a participative methodology, consisting in procedural reforms, to calibrate remedies more precisely to a victim's situation and necessities. Finally, the work discusses how the Court's victim-conscious balance of non-monetary orders and economic compensation, which has revamped standards for redress in international law, should be incorporated to a greater extent into the remedial approaches of other international courts and domestic institutions.
This brief essay seeks to demonstrate how the Moiwana case: a) presents factual situations that are increasingly common before the Court; b) continues to develop key legal constructions in response to such facts; c) foreshadows a significant evolution with respect to elements of the Tribunal's more "traditional" jurisprudence; and d) reflects, nevertheless, a prevailing caution regarding other aspects of legal analysis.
En el presente ensayo, yo quisiera presentar aspectos importantes de la jurisprudencia de la Corte Interamericana en materia de reparaciones y proponer, a la vez, que otros tribunales incorporen en mayor grado su modelo, en el que se enfatiza los beneficios de las reparaciones no pecuniarias.
Este artículo resumirá algunos de los aspectos más importantes que surgen del marco legal desarrollado por el Sistema Interamericano de Protección de los Derechos Humanos, especialmente en las sentencias de la Corte Interamericana de Derechos Humanos. Además, cuando el espacio lo permita, se harán breves referencias a los parámetros similares que pueden encontrarse en el Sistema Universal de las Naciones Unidas.