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

The UN High Commissioner for Human Rights, Michelle Bachelet, recently called for the end to all forms of violence and a return to peaceful dialogue in response to Colombia’s recent protests by a wide range of civil society groups and trade unions disillusioned by the failure of the 2016 peace agreement to resolve the root cause of inequality. At present, Latin America may be characterized as a region which has enjoyed an epoch of “long peace”, due to the lack of inter-state wars, but a diametric rise in intra-state violence, evidenced by its ranking as having the highest level of violence in the world and in particular having the highest levels of violence against workers and women.

This book explores the regional normative evolution of peace from its negative form (absence of violence) to its positive form (equality, non-discrimination, and social justice) and the challenge of articulating a pro homine peace in an increasing authoritarian populist context.

Hans Kelsen believed that only negative peace was to be considered law; however this book argues that a regional customary law of a pluralistic peace which is inclusive of positive peace is being constructed. Kelsen’s pure theory of law sets forth that all of the valid rules of law of a legal system must be mutually consistent and derive their force from a Grundnorm (basic norm). Taking into account that Kelsen recognized that the Grundnorm may not be the same in every legal order, it may be argued that peace may be considered to be a Grundnorm which remains under evolution at the international, regional, and national levels and hence has pluralistic normative iterations. As a Grundnorm, states should aim to ensure that their laws, regulations, policies, and practices harmonize with the aim of peace. The uniqueness of peace as a common value is that it is both an end and a means of the transnational legal system; one can only attain peace by pursuit of pacific means of dispute resolution. The validity of peace is grounded in its multifaceted qualities as an overarching substantive principle and provides criteria for evaluation of procedures through the concept of pacific settlement of disputes within law. Peace is both an historical and modern aim of the international system, dating back to the Peace of Westphalia and currently expressed within recent UN output, such as the 2017 General Assembly Declaration on the Right to Peace and Sustainable Development Goal #16.

Peace has a heterogeneous normative nature within Latin American constitutions which moves beyond its status as an aim, value, or principle of the legal order: first, appearing as a marker of the state’s controlling function in situations of protests, revealing the risk of oppressive peace; second, as an external obligation of pacific dispute resolution and peaceful coexistence with other states, including nuclear disarmament and territorial peace; third, as a justiciable right to be claimed by an individual or a group, alternatively as an obligation of the state and/or society vis-à-vis the domestic society; fourth as linked to human rights; and fifth as an aspect of culture through peace education and domestic alternative dispute resolution in labor conflicts. Peace can be justiciable, as revealed in a 2004 case by the Costa Rican Supreme Court in which a law student claimed that the Costa Rican government had violated the Constitution by expressing support for the US invasion of Iraq.

In terms of peace as a means, there is concern at the withdrawal of both Colombia and Venezuela from recognition of resolution of their respective continental shelf cases from the ICJ in favor of direct negotiation may weaken the Court as an effective peacemaker. The strategic value of oil and other natural resources reveals the fragility of the international dispute resolution system in the context of economic interests.

I interviewed the current judges of the Inter-American Court of Human Rights and reviewed the academic literature authored by former judges on the topic of peace. The judges agree that Peace is an aim of the regional system but are concerned about the contextual challenges related to corruption, authoritarianism, poverty, exclusion, violence, and infringements on national judiciaries. This underscores their engagement in addressing structural violence to strengthen equality and non-discrimination.  The Court has established a significant body of jurisprudence addressing the rights of migrants, indigenous people, and the elderly. Many of these cases recognize socio-economic rights as justiciable and call for non-repetition guarantees to ensure restitution of property, access to justice, and training of border guards and other personnel working with vulnerable communities. However, states are delayed in implementing these orders, thereby demonstrating the complexity of dismantling structural violence. The Court also issues provisional orders calling for protection of human rights defenders and other civil society actors engaged in protests which are subject to oppressive response by the Sttate.

The current President of the Inter-American Court of Human Rights, Elizabeth Odio Benito, considers women to be the heart of peace and thus concludes that the Court protects peace because it protects women’s rights. There is currently a high level of polarization within the region revealed by societal mobilization and counter-mobilization regarding abortion, access to IVF, violence against women, and family rights. The Court has issued important non-repetition guarantees calling for training of medical staff, police, and judicial actors in women’s rights, however many of these orders remain unimplemented in spite of continuing protests by women demanding change. The battle for hearts and minds is reflected within in the Court through its majority decisions which tend to uphold liberal interpretation of rights and dissents reflecting conservative views by Judge Vio Grossi. The contestation of views may impact future elections of judges to the Court.

The Inter-American Court of Human Rights may be able to develop the framework of sustainable peace within the context of the triad of human rights, democracy, and development.  It articulates which state institutions require reform/training in order to tackle structural equality and non-discrimination challenges related to positive peace by underscoring accountability. It may be suggested that peace as a value may serve as a bridge between liberal and conservative civil society and state actors as it is central to both secular and faith-based institutions. It may be possible to further culture of peace initiatives, recognizing the heritage of peace-related initiatives within the region and vision of future integration. The response to the current backlash against human rights, regression of human rights protection and democracy, and diminished social trust and trust in state institutions requires strategic engagement by the Court as well as NGOs to develop a contemporary understanding of the function of human rights in relation to sustainable peace and its eventual crystallization as a customary norm as part of a new epoch in the normative evolution of international law.

 The Construction of the Customary Law of Peace: Latin America and the Inter-American Court of Human Rights 
by Cecilia Bailliet
Edward Elgar | Cheltenham, Northampton, 2021. 265pp.

Written by

Cecilia M. Bailliet is Professor at the Department of Public and International Law at the University of Oslo.
Website at the University of Oslo

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