Discrimination and the Regional Human Rights Protection Systems: The Enigma of Effectiveness
58 Pages Posted: 11 Nov 2019 Last revised: 12 Nov 2019
Date Written: November 1, 2019
Despite the creation of regional human rights protection systems and their efforts, the problems of discrimination, exclusion, and marginalization continue to be widespread, posing formidable barriers for many persons to exercise their basic civil, political, economic, social, and cultural rights. These considerations raise the question of whether the regional human rights protection systems in the Americas and Europe can really impact substantially the eradication of the problem of discrimination, which is part of their mandate.
The author contends in this article that the Inter-American and European Systems do have potential to contribute to the prevention and response to the problem of discrimination, through the execution of their varied mandates and mechanisms. In this sense, the author discusses in the article emerging legal tendencies that are noteworthy from both systems, among these: i) the special treatment of a number of groups as “vulnerable” or “in a situation of vulnerability;” ii) an approach considering the intersection of different identities or factors of discrimination; iii) a flexible reading to the textual prohibition of discrimination in the major treaties, identifying more prohibited motives such as sexual orientation and gender identity; iv) an avid link between violence and discrimination, and the obligation to act with due diligence when these acts are committed by non-State actors; and v) the issue of stereotypes and how these influence negatively the actions of State authorities towards historically marginalized groups and society as a whole. The article will review how these legal tendencies offer both opportunities and challenges to these two regional protection systems to improve their effectiveness in efforts to address in a structural and transformative way the problem of discrimination in the Americas and in Europe.
This paper contributes to current scholarship in this area by comparing the approach to discrimination issues of two regional human rights protection systems; examining the overall response of these institutions to discrimination through the lens of effectiveness and the varied mechanisms of each system; and considering the different social contexts, political realities, and financial pressures these systems face, which impact their overall work in the protection and promotion of human rights.
Keywords: Inter-American Court, European Court of Human Rights, Discrimination, Effectiveness, Americas, Europe, Human Rights
JEL Classification: K33, K38
Suggested Citation: Suggested Citation