Specificity in the Inter-American Court of Human Rights

Abstract

Human rights bodies formulate highly specific orders to minimize the risk of State non-compliance. However, specificity comes at a cost, reducing State autonomy when local agents implement measures on the ground. This article develops the concept of specificity in human rights reparations and analyses the specificity formulas deployed by the Inter-American Court of Human Rights in structural measures as a form of positive subsidiarity. We employ qualitative data analysis software to process 322 measures of non-repetition ordered by the Inter-American Court through to the end of 2020. This analysis identifies two modes of specificity: process-based, which defines procedures for compliance, and outcome-based, which sets the goals for the State. After coding over 800 segments of text from Court decisions, we outline an exhaustive legal framework with 26 process-based categories and 2 outcome-based forms of specificity. We conclude that outcome-based specificity can help courts balance positive subsidiarity and State autonomy in the design of reparations.

Practitioner Points

• This article provides users of the Inter-American System for Human Rights, particularly litigants (that is representatives of the victims or the States) and the Inter-American Commission, with relevant tools to improve their requests for guarantees of non-repetition.

• The proposed relationship between the language of a reparation measure and the principle of subsidiarity allows State’s institutions and mechanisms in charge of compliance to anticipate whether a determined course of action has the potential to be considered by the Court at the stage of monitoring of compliance, as compatible with the reparation ordered.

• The research also provides inputs to the Inter-American Court of Human Rights on how to design reparations measures, especially guarantees of non-repetition, considering the effect that including detailed or general instructions in the reparation order has on compliance.

1. Introduction

Every legal order must be interpreted before it can be implemented. The parties responsible for executing an order can therefore embrace an interpretation that is best suited to minimize the costs of compliance (Batory 2016; Shah 1996). This practice is of particular concern in international human rights law. Búzás has shown that States engage in ‘evasion’, complying with the letter of international norms in ways that undermine their purpose (Búzás 2017; 2021). To prevent evasion, human rights bodies issue specific orders that restrict the range of feasible interpretations available to the State. But specificity comes at a cost, because it also reduces the autonomy of local State agents to implement measures on the ground (Staton and Vanberg 2008).

What are the legal formulas to specify human rights orders, and what are the implications of these formulas for human rights practice? We explore these important questions through an analysis of reparations ordered by the Inter-American Court of Human Rights (IACtHR). The specificity of remedial measures has been the object of limited research. Early studies have underscored how certain forms of specificity can improve the implementation of reparations (Antkowiak 2011: 313; Murray and Sandoval 2020: 102), but authors acknowledge that specificity is just ‘a potential’ cause of compliance (Kapiszewski and Taylor 2013: 814). Our study centres on the meaning of specificity and its relationship with positive remedial subsidiarity, in a context in which States are ordered to implement complex measures.

The IACtHR provides a rich body of jurisprudence to analyse the specification of remedial orders. Its practice differs from peer institutions because of the scope and clarity of its reparations (Baluarte 2012: 274). The IACtHR is known for an ‘activist’ remedial regime that transcends monetary compensations to order detailed measures designed to repair human rights violations and avoid their repetition (Huneeus 2011: 501).

This article makes three contributions to the study of this topic. First, we build on previous studies, in particular the work of Murray and Sandoval (2020) to articulate a definition of specificity in remedial orders. Our definition emphasizes the amount of detail in the standards for compliance included in an order. Second, we systematically map the practice of specificity in the IACtHR by analysing all its guarantees of non-repetition (GNR), from its foundation through to the end of 2020. Among the different types of reparations ordered by IACtHR, GNR have received significant attention because of their complexity and the innovative ways in which the Court has framed them (Londoño Lázaro and Hurtado 2017). These measures seek to prevent future human rights violations by ordering the correction of the State’s institutional insufficiencies. The comprehensive character of GNR makes them likely to include multiple criteria of specificity (Galván Puente 2009: 73).

Third, we analyse the tension between specificity and remedial subsidiarity. Our analysis of the IACtHR’s practice leads us to identify two dimensions of specificity: a process-based dimension, by which the Court commands the State to adopt particular means to implement a reparation measure, and an outcome-based dimension, by which the Court commands the State to achieve a particular goal. In this article, we identify 26 formulas for process-based specificity but only two for outcome-based specificity. We conclude that the latter can be an important tool to balance positive subsidiarity and State discretion in the design of reparations.

2. Specificity in reparation measures

2.1 The concept of specificity

Previous research has referred to the level of detail in the wording of a reparation measure as ‘clarity’ (Staton and Romero 2011), ‘intrusiveness’ (Çalı 2018), or ‘specificity’ (Murray and Sandoval 2020). Staton and Romero categorize reparations ordered by the IACtHR as clear, somewhat clear, or unclear, depending on the content of the remedy. They consider that a remedy is clear when the action required from the State is unambiguous; somewhat clear, when ‘what is required from the State is fairly clear, but how it should be done is not completely obvious’, and vague, when the remedy is ‘extremely unclear, leaving considerable discretion to the State’ (Staton and Romero 2011: 10–11).

Çalı refers to intrusiveness as the practice of ‘specifying what types of actions states must take in order to repair the damage done through human rights violations and to prevent non-repetition’. Her research analyses how the institutional legal cultures of the European, Inter-American, and African regional systems account for variations in levels of intrusiveness (Çalı 2018: 227).

According to Donald and Speck,

specificity refers to the degree of detail contained in the indication of particular non-monetary individual or general measures, whether in the main body or the operative provisions of a judgment: the more specific the judgment, the less discretion remains to the state as to what remedial measure is required and possibly also by when it should be achieved (Donald and Speck 2019: 84).

Therefore, the specificity of a reparation measure must be inferred not only from the operative provisions of the decision, but also from the reasoning of the institution.

In an important contribution, Murray and Sandoval consider that

specificity can refer to the indication of key criteria in the wording of the measure that would allow the State to know what it is obliged or recommended to do; when does the State have to deliver on it; which authorities should take responsibility for it; and how should the State report on steps taken towards implementation (Murray and Sandoval 2020: 104).

For them, specificity criteria may include the content of the reparation, deadlines, identifying the victim, and the indication of the actors responsible for the compliance, among others (Murray and Sandoval 2020).

We define specificity as the amount of detail present in a legal order when detail is intended to operationalize the conditions for compliance. Greater specificity increases the connotation of the order by expanding the number of instructions or requirements. It also restricts the range of feasible interpretations for the order, and therefore the number of potential actions that meet the court’s standards of compliance. When defining specificity, we therefore differentiate the main action or obligation (what should be implemented) from the details related to implementation (for example how the order should be implemented). Only the latter constitute specificity criteria.

Our definition accommodates two ways in which courts and other bodies introduce specificity in their orders: by introducing detail in the description of the implementation process and by introducing detail in the definition of desired outcomes. As we show below, outcome-based specificity has been mostly ignored by the literature.

This definition also acknowledges the reality of ‘layered’ specificity criteria. Because compliance requires the target (for example the State) to act on a particular understanding of the order, courts impose additional requirements to reduce the plausible range of interpretations. Yet, compliance with additional instructions or requirements will also call for a proper understanding of them. Courts may therefore impose further constraints by providing new specifics. This process creates layers of specificity that we illustrate below.

2.2 Specificity as an index of subsidiarity

Specificity is a crucial concept in the analysis of reparations, not only because of its potential relevance for compliance (Antkowiak 2011), but also because it is an operational manifestation of the principle of subsidiarity. Subsidiarity involves ‘a relationship between two institutions or norms by which one supplements the other in appropriate circumstances’ (Neuman 2013). This principle implies that higher-level (for example international) institutions help lower-level (for example domestic) units accomplish their ends without arrogating the required tasks to themselves (Neuman 2013).

The role played by the international tribunals in relation to the State’s duty to repair is called ‘remedial subsidiarity’ and has been identified as one of the procedural doctrines of subsidiarity in International Human Rights Law (Neuman 2013). When an international institution orders remedies, it is supplementing the duty of the State to repair. In this context, specificity is a distinctive metric of subsidiarity because reparations with higher degrees of specificity imply a narrower margin of appreciation for the State (Londoño Lázaro and Hurtado 2017).

Carozza describes subsidiarity as a ‘somewhat paradoxical principle’ which encompasses negative and positive dimensions (Carozza 2003: 44). The negative dimension limits the intervention of the ‘higher’ institutional sphere to areas in which ‘lower’ units cannot accomplish their goals without assistance. This means that the higher level must refrain from arrogating tasks that a lower form of organization can effectively undertake (Carozza 2003). In the case of reparations, international courts must refrain from ordering reparations when human rights violations can be properly addressed at the domestic level. Thus Benson (2016: 82) asserts that ‘remedial subsidiarity protects the States’ choice of remedial means after an adverse judgment of an international human rights body or court’.

By contrast, the positive dimension of subsidiarity justifies an intervention when ‘lower’ units are unable to achieve the goals by themselves (Neuman 2013). In such situations, the higher institutional level has a duty to intervene. In the case of reparations, positive subsidiarity entails that when the State has not provided a proper remedy for human rights violations, international courts can order measures to restore the rights infringed and to repair the negative consequences of the breach.

Thus, the degree of specificity in reparations operates as an index of positive subsidiarity. A regional human rights court exercises positive subsidiarity when, for instance, it refers victims to domestic institutions to obtain compensation or to receive medical treatment.¹ As pointed out by Donald and Speck, the more detailed the design of a reparation measure, the less deference to the State (Donald and Speck 2019), and the greater degree of positive subsidiarity.

When courts provide less specificity in the design of reparations, they express greater levels of deference; that is, they voluntarily limit their own power for the benefit of domestic decision-makers (Tsereteli 2016). Deference manifests negative subsidiarity if the decision to exercise self-restraint is motivated by an awareness that national authorities have superior qualities to perform the function (Kavanagh 2008). Courts express deference by limiting the instructions given for the implementation of remedies. Thus, less specificity conveys more deference to the State and thus less reliance on the principle of positive subsidiarity.

2.3 Specificity in the Inter-American Court of Human Rights

The IACtHR is well known for its active remedial practice. In correspondence with the duty of the States to repair, the IACtHR is vested with remedial powers. The Court has the authority to order the State to ensure the right violated and to remedy the consequences of such violation (ACHR, ‘Pact of San Jose’, Costa Rica’ 1969, Article 63).

The preamble of the American Convention on Human Rights (ACHR) establishes that the Convention complements the protection of essential rights that are already provided for by the domestic law of the American States. The IACtHR has expressly mentioned the principle of (negative) subsidiarity when it has concluded that domestic jurisdictions adopted adequate remedial measures or provided reasonable reparations (Rodríguez Revolorio et al. v. Guatemala, 2019, para. 59). In such cases, the Court has refrained from ordering further measures, claiming that the State has conducted appropriate investigations (Tarazona Arrieta v. Peru, 2014, para. 136–41), has implemented restitution measures (Colindres Schonenberg v. El Salvador, 2019, para. 72–80), or has provided compensation (Santo Domingo Massacre v. Colombia, 2012, para. 336).

However, positive subsidiarity is most common in the Court’s remedial practice. The IACtHR is known for resorting to a broad array of reparatory measures and for the innovative character of those reparations (Aksenova 2020). Moreover, the Court has made an expansive interpretation of its remedial powers, ordering ‘a wide range of detailed remedies’ (Neuman 2013: 374). Murray and Sandoval studied multiple international bodies and concluded that the IACtHR is the one most likely to employ specificity ‘as a particular feature of its approach to reparations’ (Murray and Sandoval 2020: 106). As we show in the rest of this article, the analysis of reparations ordered by the IACtHR displays an extensive repertoire of specificity instruments, allowing for a detailed mapping of expressions of positive subsidiarity.

3. Methodology

To document patterns of specificity in reparations, we collected 363 judgments ordering reparations, issued by the IACtHR through to December 2020. We restricted our analysis to a single type of reparation measure to facilitate comparability across cases. GNR (that is structural measures) are distinctively complex and therefore display the widest range of specificity forms.² Our corpus includes 322 GNR, present in 168 court decisions (about 16 per cent of all reparations ordered by the Court during this period).

We gathered digital copies of the Court’s judgments on reparations in the original Spanish and conducted a computer-assisted text analysis. Our analysis identified all GNR, coded their segments of text indicating specificity (according to the definition presented in the previous section), created analytical categories to classify those text segments, and revisited the categories iteratively as we identified new forms of specificity (Kuckartz 2014). The resulting data file contains an exhaustive classification of 822 paragraphs, including the dispositive provisions and related paragraphs exposing the reasoning of the Court for 322 structural measures ordered by the IACtHR. Although we cannot present detailed information for all cases in a single article, the MAXQDA file that contains the text and digital codes for all cases is available upon request.

The text defining a reparation includes the order presented in the dispositive section of the judgment, as well as the preceding paragraphs laying out the reasoning of the Court in the reparations section of the judgment. Together, these clauses articulate a statement of the obligation (what must be done) and the required implementation details that constitute markers of specificity. For example, in the dispositive section of the judgment on Juan Humberto Sánchez v. Honduras, 2003, holding 12), the Court succinctly ordered that ‘the State must implement a record of detainees that enables control of legality of detentions, under the terms set forth in paragraph 189 of the Judgment’. In the referenced paragraph, located in the reparations section, the Court specified the nature of the record:

189. This Court deems that Honduras, in the framework of the general obligation set forth in Article 2 of the Convention, must implement, if it does not yet exist, a record of detainees to enable control of legality of the detentions, which must therefore include identification of the detainees, the reason for their detention, the competent authority, the day and time of admission and of release, and information on the arrest warrant.

Although the substance of GNR (the what) is not the focus of this article, a brief discussion to provide context is in order. GNR ordered by the IACtHR typically fall into seven categories. Most orders require changes in the domestic legal system to make it consistent with the ACHR (by means of enacting, modifying or repealing particular legislation) (Guerrilha do Araguaia v. Brasil, 2010, holding 15), or the provision of training for public officers (Poblete Vilches et al. v. Chile, 2018, holding 13). Other orders require the adoption of public policies, such as action protocols, social programmes or databases (Alvarado Espinoza et al.  v. Mexico, 2018, holding 16), the creation or strengthening of public entities (Ticona Estrada et al. v. Bolivia, 2008, holding 15), the diffusion of information (Albán Cornejo et al. v. Ecuador, 2007, holding 6), and the provision of safety measures for victims (‘Mapiripán Massacre’ v. Colombia, 2005, holding 11). In addition, the Court frequently orders prior consultation and access to traditional lands in cases related to indigenous communities (Saramaka People v. Suriname, 2007, holding 9).

We worked through the text of the reparations identifying markers of specificity in an inductive way and refining the categories (also called codes or nodes) as we revised new cases. The resulting coding scheme is summarized in Table 1. Court orders are specified by answering implicit questions about who (categories of persons), when (timing requirements), where (location requirements), how (modal requirements), and why measures must be implemented. Each of these questions leads to the identification of concrete legal categories and sub-categories, as presented in Table 1. Most importantly, while the first four questions specify features of the implementation process, the last question specifies the desired outcome set by the Court.

Table 1.

Specificity codes

Dimension	Question	Category	Subcategory
Process	Persons (who)	Responsible agents (66.1%)	State (62.7%)
			Entity with fixed characteristics (1.5%)
			Concrete State entity (1.8%)
		Participants (14.5%)	-
		Recipients (54.9%)	Recipients of information or inspection (52.7%)
			Recipients of resources (2.7%)
		Beneficiaries (20.1%)	Unidentified (9.9%)
			Determinable (3.7%)
			Identified (6.5%)
	Timing (when)	Deadlines (64.2%)	Concrete deadlines (20.1%)
			Immediate compliance (2.4%)
			Reasonable time (41.6%)
		Frequency (16.1%)	-
		Conditional implementation (6.2%)	-
	Location (where) (18.9%)	National (8.0%)	-
		Local (5.5%)	-
		Specific institutions (5.2%)	-
	Modality (how)	Content (95.9%)	-
		Quality requirements (17.0%)	-
		Publicity requirements (4.3%)	-
		Allocation of resources (10.8%)	-
		Legal Standards (45.6%)	General bodies of law (4.3%)
			Concrete instruments or legal provisions (27.3%)
			Court’s reasoning (13.9%)
			Expert witness criteria (0.9%)
		Inadmissible arguments or actions (4.3%)	-
Outcome	Purpose (why) (40.0%)	Non-repetition purpose (4.9%)	-
		Individualized purpose (35.0%)	-

4. Dimensions of specificity

We identified two modal dimensions of specificity: process-based and outcome-based.³ The former specifies remedies by determining the means that must be employed when implementing reparations. The latter guides compliance by establishing the purpose that must be achieved with the implementation of the measure. In this section, we outline these dimensions and offer some distinctive examples from the IACtHR’s jurisprudence.

4.1 Process-based specificity

Process-based specificity relates to the persons, time, place, and modal requirements included in the wording of the reparation to guide the process of implementation.

In their study of specificity, Murray and Sandoval identify several criteria, including the content of the reparation, deadlines, the indication of State actors responsible for the compliance, ordering the establishment of specific domestic mechanisms (both of which we named as responsible entity), and specifying the victim (which we named as beneficiary of the measure) (Murray and Sandoval 2020). We build on this list of process-based criteria, but our study identifies additional categories: persons affected by the reparation measure; the participation of institutions, experts, or victims; conditional implementation; requirements of place; general requirements of quality; publicity requirements; allocation of resources; inadmissible legal arguments or actions, and legal standards.⁴

Process-based categories present varying degrees of specificity depending on their level of detail, the information added by those details, and their impact on the means through which the reparation must be implemented. The inclusion of more details constrains the State because only the actions meeting process-based requirements are considered satisfactory when ascertaining compliance.

4.1.1 Who? Categories of persons

4.1.1.1 Responsible agents

Responsible agents are individuals or entities in charge of implementation. In line with Murray and Sandoval (2020: 108), the Court generally addresses its orders to the State, which is the case of 66.1 per cent of the GNR. Some orders are explicitly ‘binding on all the powers and organs of the State as a whole’ (Fornerón and Daughter v. Argentina, 2012, para. 177), which seems to anticipate inter-institutional conflicts. The inclusion of this kind of remark underscores that, although the State is primarily responsible for the implementation of the reparation, the measure should be entrusted to particular entities. Sometimes the Court orders the State to act through ‘the corresponding State agency’ (Saramaka People v. Suriname, 2007, para. 194.e) or ‘competent entities’ (Azul Rojas Marín et al. v. Peru, 2020, para. 252). Like Kapiszewski and Taylor (2013), we consider that neither of these references entail a high degree of specificity, as they do not guide the determination of the domestic institution that should implement the reparation.

By contrast, in some cases the IACtHR is more specific. It either details the characteristics that the responsible entity should have, or directly names a concrete domestic institution as responsible for implementation. The former provides an intermediate degree of specificity that reduces State discretion to select the authority in charge, while setting certain conditions the institution must fulfil. This formula was used in Quispialaya Vilcapoma v. Perú, 2015 (para. 280), in which the Court ordered visits to military installations ‘by independent, autonomous and competent authorities on the field’.

The highest degree of specificity is present when the Court identifies a concrete agent as responsible for the reparation. This happened in Artavia Murillo et al. (‘In Vitro Fertilization’) v. Costa Rica, 2012 (para. 338), when the Court ordered that ‘the Costa Rica Social Security Institute must make IVF available within its health care infertility treatments and programs’. Courts always incur the risk of making mistakes when naming a concrete State organ (Huneeus 2011: 524). Naming an institution without jurisdiction, for example, will misplace responsibility and delay compliance. However, Murray and Sandoval found that some litigants consider it a ‘risk worth taking’ (Murray and Sandoval 2020: 108).

4.1.1.2 Participants

Participants are victims, experts or institutions that must be actively and directly involved in the implementation of the reparation but who are not assigned primary responsibility for compliance. The IACtHR often requires the involvement of experts, specific State entities, regional and local authorities, civil society organizations, indigenous communities, and victims, among others. Participation may be required for purposes of coordination, as with central and regional State authorities (Azul Rojas Marín et al. v. Peru, 2020, para. 255); prior consultation, as with indigenous communities (Saramaka People v. Suriname, 2007, para. 194(c); Kaliña and Lokono Peoples v. Suriname, 2015); and for the engagement of trade unions (Isaza Uribe et al. v. Colombia, 2018, para. 191), civil society organizations (Tibi v. Ecuador, 2004, para. 191), experts (Human Right Defender et al. v. Guatemala, 2014, para. 263(a)), or the victims (Workers of the Fireworks Factory in Santo Antonio de Jesus and their Families v. Brazil, 2020, para. 289).

This form of specificity restricts State discretion in selecting the parties involved in the implementation of the reparation. It also has an impact on the design of the measure, as it implicitly entails mechanisms for coordination, consultation, or participation.

4.1.1.3 Recipients

The specification of recipients entails the determination of individuals or entities that must be targets of State action, without being the primary beneficiaries of the measure. The IACtHR commonly orders that State agents receive training, inspections, or resources. For example, in Atala Rifo and Daughters v. Chile, 2012 (para. 271), the Court ordered workshops directed towards all judicial officers of the State. Other cases refer to institutions that should be inspected (In Vitro Fertilization v. Costa Rica, 2012, holding 3), or should receive human or economic resources to develop their functions (Escaleras Mejía et al. v. Honduras, 2018, holding 2).

4.1.2 Beneficiaries

The Court commonly identifies those who must directly benefit from the implementation of the measure. Murray and Sandoval note that this form of specificity is related to the question of who the victim is, and thus to whom the reparation is owed. In addressing this question, the Court applies a flexible concept of victim, emerging from its Rules of Procedure (Article 35(2)), that allows ordering reparations even for those who, because of mass and gross human rights violations, have not been individually identified as victims (Murray and Sandoval 2020: 110).

Beneficiaries are easily identified for some forms of reparation, such as monetary compensation. GNR, the focus of this study, distinctively involve broad categories of beneficiaries. We detected three formulas representing different levels of specificity. Unidentified beneficiaries are not individualized in the reparation order, and do not need to be individualized for its implementation. That is the case, for example, when the measure is intended to benefit all persons under the jurisdiction of the State (Castillo Petruzzi et al. v. Peru, 1999, para. 222), or categories of people such as pregnant women (Cuscul Piraval et al. v. Guatemala, 2018, para. 228), LGBTI persons victims of violence (Azul Rojas Marín et al v. Peru, 2020, holding 13 and 15), indigenous and ethnic communities (Yatama v. Nicaragua, 2005, holding 11), or inmates (López-Álvarez v. Honduras, 2006, holding 9).

Determinable beneficiaries are those who are not individualized in the reparation order, but whose individualization will be necessary to comply with the reparation. For instance, in the protection measures ordered in ‘Mapiripán Massacre’ v. Colombia, 2005 (para. 313), the Court ordered a guarantee of security for the family of the victims and other former settlers of the village. Finally, identified beneficiaries are persons or groups named by the Court, who are meant to benefit from the reparation measure and usually coincide with the victims in the case.

By specifying beneficiaries, the Court restricts State discretion when choosing recipients of the reparation. This form of specificity may narrow the scope of the reparation if beneficiaries are restricted to a concrete group, such as members of the police at all levels of hierarchy (Lysias Fleury et al. v. Haiti, 2011, para. 129), or it might widen the scope of the reparation if the Court is not precise, as when the order is intended to affect all public authorities (González et al. ‘Cotton Field’ v. Mexico, 2009, para. 541), or to benefit the whole population (Rosendo Cantú et al. v. Mexico, 2010, para. 267).

4.1.3 When? Specificity in timing

Time is a crucial dimension of compliance. This is particularly relevant for GNR which have an expected time to compliance of about 18 years (Pérez-Liñán et al. 2023). The IACtHR imposes time constraints in three ways: by setting deadlines, norms about frequency, and standards for conditional implementation.

4.1.3.1 Deadlines

Deadlines impose a time frame for the implementation of reparations. Murray and Sandoval note that the Court employs deadlines as a mechanism to put pressure on States, but also to ensure that things move forward (Murray and Sandoval 2020: 107).

We identified three types of deadlines: reasonable time, concrete deadlines, and immediate compliance. When GNR include a deadline, the most common formula is that the State must comply ‘within a reasonable time’ (Cabrera García and Montiel Flores v. Mexico, 2010, holding 15). Concrete deadlines establish compliance timeframe ranging between three months and two years, with one year being the most common term (Indigenous Community Xákmok Kásek v. Paraguay, 2010, holding 25). Exceptionally, the Court requires that GNR are implemented at once. For instance, in Pacheco Teruel et al. v Honduras 2012 (holding 4), the Court ordered the State to ‘implement immediate measures to guarantee the fundamental rights of prisoners, as well as disaster-prevention measures’.

4.1.3.2 Frequency

Frequency refers to the periodicity with which the reparation should be implemented. Implementation frequencies may be ordered alone or in conjunction with deadlines. The IACtHR only uses this formula when ordering trainings or workshops, clarifying that they must be ‘permanent and continuous’ (Flor Freire v. Ecuador, 2016, holding 13).

4.1.3.3 Conditional implementation

Conditional implementation is tied to a requirement that makes the obligation enforceable. The IACtHR established preconditions only for 12 GNR during the period covered in this study. In most of the cases involving conditional implementation, the Court ordered the State to implement the measure ‘if it does not yet exist’ (Juan Humberto Sánchez v. Honduras, 2003, para. 189) or to ‘the extent that it has not already done so’ (Bayarri v. Argentina, 2008, holding 12). For the remaining conditional measures, implementation required distinctive preconditions, such as the enactment of a law (‘Las Dos Erres’ Massacre v. Guatemala, 2009, para. 254), or the victims’ consent to receive reparations (‘Mapiripán Massacre’ v. Colombia, 2005, holding 11).

In contrast to other formulas, conditional implementation does not necessarily restrict State discretion, but it mentions the conditions of possibility for the required actions. This formula often shows that the Court lacks enough information regarding the measures already in place or acknowledges that the measure depends on preconditions to become viable or binding.

4.1.4 Where? Location

Some orders also specify the location where the reparation must be implemented. This is not a common practice; the IACtHR has determined a specific location only in 61 GNR. In those cases, the Court has ordered that measures be implemented nationwide (Indigenous Communities of the Lhaka Honhat ‘Our Land’ Association v. Argentina, 2022, para. 356), locally (in a concrete province, department, municipality or city) (Barrios Family v. Venezuela, 2011, para. 341) or in particular institutions referenced by name (Huilca-Tecse v. Peru, 2005, para. 113) or type (Poblete Vilches et al. v. Chile, 2018, para. 240).

Location subcategories entail different degrees of specificity and scope. Reference to concretely located institutions by name is the most specific formula, followed by references to type, subnational locations, and nationwide implementation. The inclusion of specificity criteria provides the State with information about the geographic scope of the reparation measure. For instance, in Huilca-Tecse v. Peru, 2005 (para.113), the Court ordered the State to ‘establish in the Universidad Nacional Mayor de San Marcos, a course or subject on human rights and labor law, entitled “Cátedra Pedro Huilca”, to honor the memory of the trade union leader’. The specification in this reparation measure does not leave room for doubts regarding whether the GNR should be exclusively implemented where the violation occurred or across the entire territory of the State. In contrast, lack of specificity in this regard has the potential effect of widening the scope of the reparation measure.

4.1.5 How? Modality requirements

4.1.5.1 Content

In many instances, the action ordered by the Court is a vessel to convey substantive content. The order therefore needs to specify the subject matter of the reparation.

The Court commonly orders that trainings or workshops refer to general ‘principles and norms of human rights protection’ (Gomes Lund et al. ‘Guerrilha do Araguaia’ v. Brazil, 2010, para. 283), or to particular rights or norms (Tibi v. Ecuador, 2004, para. 263). In measures requiring the distribution of booklets, the implementation of campaigns or the establishment of informative or surveillance mechanisms, the Court may indicate the type of information that the State must collect and disseminate (Cuscul Piraval et al. v. Guatemala, 2018, para. 225). In the case of public policies, the Court may specify the functions or services they must provide. For example, in Gutiérrez Soler v. Colombia, 2005 (para. 112), the Court ordered Colombia to strengthen its control of detention facilities, specifying, inter alia, a) appropriate medical exams for every person detained or imprisoned; b) regular psychological evaluations of penitentiary officials; and c) frequent access to penitentiary facilities for institutions that control and protect human rights.

Content requirements apparently blur our initial distinction between the substance of GNR (the what) and their specific attributes (the how). The content of a public policy, for instance, is intrinsic to its definition. This ambiguity in the conceptual boundary between the noun and its adjectives, however, serves to underscore our thesis. By identifying specific attributes (of any kind), the Court narrows the set of substantive actions (the list of feasible whats) that meet the requirements for compliance.

Determinations of content exhibit varying degrees of specificity depending on the amount of information about the subject matter included in the reparation. A general mention to rights is less specific than an order to provide training on particular rights, according to a particular body of law. Likewise, a requirement to observe due process guarantees (J v. Peru, 2013, holding 18), is less specific than listing the specific guarantees to be included in the reparation.

4.1.5.2 Quality requirements

We define quality requirements as features of the measure, established through the inclusion of adjectives. When the Court specifies quality requirements, it is to point out that human rights training must be ‘compulsory’ or ‘mandatory’ (López Soto et al. v. Venezuela, 2018, holding 21), as a reminder that a measure must be ‘effective’ (Luna López v. Honduras, 2013, holding 10), or ‘clear’ (Mendoza et al. v. Argentina, 2013, holding 20), and to demand the ‘impartiality and independence’ of domestic institutions (Palamara-Iribarne v. Chile, 2005, para. 257). The remaining references cover a wide range of attributes for reparations: the diffusion of ‘understandable’ information (Cuscul Piraval et al. v. Guatemala, 2018, para. 228), the adoption of ‘rational and proportional’ measures (Caracazo v. Venezuela, 2002, holding 4.c), the provision of ‘simple, accessible and reasonable’ procedures and services (Yean and Bosico Girls, 2005, holding 8), or even services ‘at no cost whatsoever’ (Acevedo-Jaramillo et al. v. Peru, 2006, holding 14; Espinoza Gonzáles v. Peru, 2014, holding 15).

Some adjectives like ‘effective’ or ‘reasonable and proportional’ are undetermined, so they provide limited information for implementation purposes. Nevertheless, these adjectives anticipate criteria that the Court is expecting to evaluate at the supervision stage, so they still contribute to an understanding of how the Court envisions the final outcome.

4.1.5.3 Publicity

Publicity requirements demand that the actions or information related to the reparation be disseminated through news media, digital channels, or other means of communication. The IACtHR commonly demands the publication of its decisions, but our discussion in this section refers to publicity requirements for the implementation of individual measures. We found that the Court used this specificity formula only in 14 of 322 GNR. It has imposed this requirement when it considers that the State should publish statistics on issues such as racial discrimination (Acosta Martínez et al. v. Argentina, 2020, para. 121), investigations against police officers for discriminatory acts (Fernández Prieto and Tumbeiro v. Argentina, 2020, para. 127), and violence against LGBTI persons (Azul Rojas Marín et al. v. Peru, 2020, para. 252). Likewise, the Court has imposed this requirement when it considers that people not named as victims in the case may have been affected by the same violation, and thus orders the State to disseminate the measure so that potential beneficiaries can bring forward their petitions in the internal jurisdiction. For instance, in Almeida v. Argentina, 2020 (para. 68), the Court ordered the State to ‘publicize’ its obligation to ‘administratively review the situation of persons who request it and who [having been denied compensation as victims of state terrorism] are in the same factual circumstances as Mr. Almeida’.

The wording used by the Court can convey varying degrees of specificity, depending on whether the decision mentions specific media channels, formats, or platforms for publicity. For example, in Albán Cornejo v. Ecuador, 2007 (para. 162), the Court indicated that the State must spread information through ‘proper means of communication’, whereas in Almeida v. Argentina, 2020 (para. 68), the State had to publish an announcement ‘on the official websites of the State bodies it considers pertinent, in particular on the website of the Human Rights Secretariat of the Ministry of Justice and Human Rights’.

4.1.5.4 Allocation of resources

A specific order to allocate resources involves the requirement to earmark public funds (and other assets) for the implementation of a reparation. We found that the IACtHR required an allocation of resources in 35 out of 322 GNR. In 57 per cent of these cases, the Court generally stated that GNR shall be implemented ‘with the necessary budgetary resources’ (Ibsen Cárdenas and Ibsen Peña v. Bolivia, 2010, holding 14), or ‘supported with the adequate budget allocations’ (Ruano Torres et al. v. El Salvador, 2015, holding 19). In the remaining 43 per cent, the Court further specified the nature of the resources and their purpose. For instance, in Human Rights Defender et al. v. Guatemala, 2014 (para. 263.g), the Court ordered ‘the provision of sufficient human and financial resources to respond to the real needs for protection of human rights defenders’, and in Carpio-Nicolle et al. v. Guatemala, 2004 (para. 135), the Court ordered the State to ‘provide the entities responsible for preventing and investigating extrajudicial executions with sufficient human, financial, logistic and scientific resources to process all evidence of a scientific or other type adequately, in order to clarify criminal acts’. This formula demands the allocation of resources as a mandatory step, necessary for complying with the remedial measure.

4.1.5.5 Legal standards

The Court often identifies a set of principles, rules, or norms in conformity to which the reparation must be implemented. Formulas calling for the State to ‘adapt to’, or act ‘in conformity to’, ‘according to’, or ‘taking into account’, distinguish the inclusion of legal standards as a specificity criterion (López Soto et al. v. Venezuela, 2018, para. 337; Espinoza Gonzáles v. Peru, 2014, holding 13). The reference to legal standards does not relate to the content of the measure (the subject matter, discussed previously), but rather to the obligation to ensure compatibility of any actions taken with certain principles, rules, or norms.

We found that the Court has used this criterion 155 times in the 322 GNR, invoking standards from: 1) general bodies of law, 2) concrete instruments or legal provisions, 3) the reasoning part of the judgment; and 4) expert witness criteria. The Court has referred to general bodies of law, without specifying any concrete provisions or legal instruments, in about 9 per cent of the cases invoking legal standards. In most instances, the judgment orders the State to undertake a legal reform ‘in accordance with international standards’ (Fornerón and Daughter v. Argentina, 2012, para. 177), or includes similar statements concerning International Human Rights Law (Rodríguez Revolorio et al v. Guatemala, 2019, holding 10). In contrast, the Court has mentioned concrete instruments or legal provisions in 27.3 per cent of the GNR. For example, in Herrera Ulloa v. Costa Rica, 2004 (para. 198) it ordered the State to adapt its domestic legal system ‘to conform to the provisions of Article 8(2)(h) of the [American] Convention’. The Court may also indicate that a measure must comply with standards developed in the reasoning of the case, often directing readers to paragraphs in the same judgment (Palamara-Iribarne v. Chile, 2005, para. 255). The IACtHR refers to its own reasoning in about 13.9 per cent of GNR. Finally, the Court may order the State to implement the measure in accordance with criteria expressed by an expert witness who informed the decision. Expert witness criteria have been invoked in just 0.9 per cent of GNR. The decision always mentions the name of the expert witness, along with the precise part of the opinion the State must take into account (Pacheco Teruel et al. v Honduras, 2012, para. 111).

4.1.5.6 Inadmissible legal arguments or actions

The Court may include pre-emptive language warning about the inadmissibility of future arguments attempting to justify an eventual lack of compliance, or warning about inadmissible actions during the implementation process. We found that the Court has specified inadmissible legal arguments or actions in 14 GNR issued through to the end of 2020.

When dealing with federal states, the Court uses this formula to establish that they ‘cannot validly adduce their federal system to breach the norms of the [American] Convention’ (Indigenous Communities of the Lhaka Honhat ‘Our Land’ Association v. Argentina, 2022, para. 356). In some cases, the Court uses this criterion to remind the State which actions would constitute a violation of its international obligations, should they be carried out, or which legal practices would be incompatible with those obligations, should they continue to be implemented. For example, in Raxcacó Reyes v. Guatemala, 2005 (para. 132.ii) the Court ordered the State to create a legal procedure allowing convicted persons to apply for a pardon, and further specified that ‘in these cases, the sentence must not be executed while the decision on the pardon or commutation of sentence applied for is pending’.

This criterion constitutes a form of process-based specificity a contrario sensu. Instead of indicating which concrete actions must be taken to comply with the reparation measure, the Court specifies which ones are off limits. The amount of discretion granted to the State by this formula greatly depends on other specificity criteria present in the order. In principle, this criterion may grant the State a high level of discretion regarding the implementation of a measure, while providing valuable information to preclude actions or arguments that would be considered inadmissible. As such, this form of specificity serves a pre-emptive function.

4.2 Outcome-based specificity

While specificity criteria are conventionally seen as formulas to guide the implementation process (the who, when, where, how), courts can also specify the goals of State action (the why). Outcome-based specificity refers to the explicit determination of a purpose in the wording of the reparation order. The IACtHR specified the purpose of 40 per cent of its GNR. In defining those aims, the Court established two types of purposes: general non-repetition outcomes and individualized outcomes.

The Court makes explicit the non-repetition purpose when it indicates that the measure aims at the prevention of future violations, as it did in Barrayi v. Argentina, 2008 (para. 182). This statement constitutes the lowest degree of outcome-based specificity because it only restates the purpose of any GNR, without providing further guidance on the expected outcome, or on the means adequate to implement the reparation.

In contrast, when the Court establishes an individualized purpose for the GNR, it sets a higher degree of outcome-based specificity. In those cases, the purpose expresses a particular outcome that must be achieved through the measure’s implementation, such as the protection of a right or the realization of a public policy goal. Even if the Court does not specify any features of the implementation process (persons, places, timeframes, modal requirements, and so on), the individualized purpose implicitly narrows the means that might be appropriate to achieve that goal.

Within the individualized purpose, there are varying degrees of specificity depending on the extent to which the details included narrow the range of available actions the State can take to achieve the given purpose. For instance, in Indigenous Communities of the Lhaka Honhat ‘Our Land’ Association v. Argentina, 2022 (holding 15), the Court ordered the State ‘to provide legal certainty to the right to indigenous communal property’, and in Radilla-Pacheco v. Mexico, 2009 (para. 334), the IACtHR ordered that the State should adopt all necessary legal reforms ‘to bring Article 57 of the Code of Military Justice into line with international standards on the matter’. In these cases, the individualized purposes are broadly stated, and no further details are provided.

Individualized purposes in cases concerning the adaptation of the domestic legal system, are presented in a way that implicitly expresses the content of the legal reforms that must be undertaken by the State. The specification of the purpose provides the State with information about the essential clauses that the legal reform must include. In such cases, the purpose overlaps with the content of the measure. For example, in Cabrera García and Montiel Flores v. Mexico, 2010 (para. 235), the Court ordered the State to undertake the necessary legal reforms ‘to allow individuals affected by the actions of the military courts to have access to an effective remedy to challenge their jurisdiction’. Therefore, for the legal reform to achieve its intended purpose, it must include the creation of actions with appellate effect.

On the other hand, in ‘Las Dos Erres’ Massacre v. Guatemala, 2009 (para. 271), the Court ordered the creation of a webpage for the search of children abducted and illegally retained during the internal conflict and established that the

goal of this webpage will be to provide guidance and support to institutions or national associations dedicated to the search for children who were abducted and illegally retained during the internal conflict, as well as to individuals who access it looking for these children or who suspect being a child abducted and illegally retained, and to facilitate reuniting them with their families.

In contrast to the previous examples which only referred to a broad subject, this individualized purpose also includes details (such as the type of beneficiaries, that is a process-based specificity criterion), that further narrow the range of possible actions the State could undertake to implement the order.

A higher degree of specificity is present in cases where the Court segments the reparation measure to provide multiple objectives within the individualized purpose. For example, in Expelled Dominicans and Haitians v. Dominican Republic, 2014 (para. 465), the Court ordered the State to implement a permanent educational programme with the purpose of ensuring: (a) that racial profiling never constitutes a reason for detention or expulsion; (b) strict observance of the guarantees of due process during any proceedings related to the expulsion or deportation of aliens; (c) that Dominican nationals are never, in any circumstance, expelled, and (d) that collective expulsions of aliens are never executed.

Similarly, in the creation of mechanisms for the implementation of public policies the establishment of multiple objectives serves to orient the practical functions and attributions of the mechanism to be established by the State. For example, in Cuscul Pivaral v. Guatemala, 2018 (para. 226), the Court ordered the State to design a mechanism with the general purpose of ensuring the ‘accessibility, availability and quality of antiretroviral drugs, diagnostic tests, and health services for people living with HIV’. Furthermore, in said case, the Court ordered that the mechanism must achieve the following minimum objectives:

(i) to increase the availability, accessibility and quality of antiretroviral drugs, diagnostic tests for the HIV detection, and tests for the diagnosis and treatment of opportunistic diseases; (ii) to improve programs for the care of people living with HIV and to increase the coverage of care; (iii) to increase and improve urgent and immediate measures relating to health care for people living with HIV, and (iv) to improve the information available for decision making by all the competent authorities (ibid., para. 226).

In the absence of any other categories of specificity in the reparation, the establishment of a highly specific purpose provides sufficient information for the State to appropriately implement the measure, since only the actions which effectively meet the objectives indicated by the Court will be in compliance. With a less specific purpose, more deference is granted to the State in the implementation of the reparation measure. Likewise, the purpose of the measure constitutes a relevant criterion at the stage of monitoring of compliance, allowing the Court to determine whether the actions taken by the State are appropriate for compliance.

5. Conclusions

Our analysis of 322 GNR, ordered in 168 decisions of the IACtHR, underscores the importance of defining specificity in a multidimensional manner. Analysing both the process and the expected outcome of the implementation, offers a comprehensive perspective on how to design reparations. Scholarship about specificity in reparations has only considered categories that fall under the dimension of process-based specificity. We find this approach to be limited, as it excludes another important dimension of specificity: outcome-based specificity. This dimension refers to the explicit determination of a purpose that must be achieved through the implementation of the reparation, regardless of the steps followed by the State to achieve that goal.

Outcome-based specificity reinforces process-based specificity because it informs the State about the goals to be achieved, facilitating the operationalization of the conditions for compliance. Outcome-based specificity is an important mechanism to balance respect for State discretion and the exercise of positive remedial subsidiarity by a judicial or quasi-judicial body. This form of specificity appears to be distinctive of GNR because they address structural issues or institutional deficiencies of the State, instead of just focusing on the individual redress of particular victims.

When the reparations include outcome-based requirements, the State has discretion to select the means of implementation, while the human rights body still exercises positive remedial subsidiarity by establishing clear parameters under which compliance will be assessed. The State retains high levels of discretion to determine operational measures, but it is charged with choosing those compatible with an established purpose. Hence, the design of the reparation can lead the State to achieve the outcome established, without concerns about micromanagement by a judicial or quasi-judicial body.

When the reparation measure only includes process-based requirements, the State’s discretion over implementation varies depending on how the different categories, subcategories and forms of specificity interact in the design of the measure. In the absence of outcome-based specificity criteria, reparations may be highly detailed regarding the process of implementation but, lacking the information related to the expected outcome, may result in an implementation that does not fulfil what the judicial or quasi-judicial body originally intended.

A judicial or quasi-judicial body should rely on outcome-based specificity as the main component in the design of a reparation measure when the characteristics of the measure and the State’s history of compliance suggest that wider discretion is desirable. Considering the nature of GNR, our research suggests that the inclusion of process-based categories without describing an expected outcome is a suboptimal strategy.

This article aims at contributing to the research in the design of reparations. Further research will be necessary to assess the role of outcome-based specificity in other types of reparations, as well as to determine the impact of both dimensions of specificity in compliance rates. Particularly, further research is required to assess if outcome-based specificity contributes to overcoming obstacles during the phase of implementation of reparations.

Conflict of Interest

None declared.

Funding

This work was supported by the Notre Dame Reparations Design and Compliance Lab of the Kellogg Institute for International Studies of the University of Notre Dame, Indiana. We are indebted to the Kellogg Institute of International Studies for its support.

Footnotes

1

See Inter-American Court of Human Rights cases Operación Génesis v. Colombia, para. 469–75, and Vereda La Esperanza v. Colombia, para. 341. All cases cited in the text are from IACtHR.

2

We identified measures of non-repetition following the classification made by the Court in its judgments. In its first judgments, the Court did not label the reparations; in those cases we relied on the notion that this type of order has an inherently preventive nature (De Greiff and Justice UN 2015: para. 24). As such, we adopted the following definition: GNR are those which aim at performing structural, institutional, or normative changes within the State to avert the commission of similar human rights violations.

3

The distinction between process-based and outcome-based specificity is conceptually different (and narrower) than the distinction between ‘process’ understood as the design and implementation phase of reparative measures, and ‘outcome’ understood as the impact of those measures. For a treatment of the latter distinction, see Khawla Wakkaf, Framing Reparation Claims in International Law: Limitations and Pathways, JSD dissertation, forthcoming May, 2025, Notre Dame Law School.

4

Murray and Sandoval’s list also includes the quality of reasoning and deliberate ambiguity, which we do not consider specificity criteria under our definition presented above.

Author notes

Nicolás Buitrago-Rey is a J.S.D. Candidate in International Human Rights Law at Notre Dame Law School, Indiana, United States of America.

Paloma Núñez-Fernández is a Lawyer at the Inter-American Court of Human Rights, San José, Costa Rica.

Aníbal Pérez-Liñán is Director of the Kellogg Institute for International Studies and Professor of political science and global affairs at the University of Notre Dame, Indiana, United States of America.

Angélica Suárez-Torres is a Lawyer at the Inter-American Court of Human Rights, San José, Costa Rica.