Abstract

Excerpted From: James Cavallaro, Silvia Serrano Guzmán and Jessica Tueller, A New Path Forward? How Attention to Economic, Social, Cultural, and Environmental Rights Could Increase U.S. Indigenous and African-American Civil Society Engagement with the Inter-American Human Rights System, 28 UCLA Journal of International Law and Foreign Affairs 39 (Fall, 2024) (153 Footnotes) (Full Document)

In the field of human rights, U.S. exceptionalism is often understood from the perspective of the state and its policies. The United States, when ratifying treaties, limits the norms it accepts through the attachment of reservations, understandings, and declarations that, in effect, render the rights protected no more expansive than their corollaries in the U.S. Constitution and laws. In a similar fashion, U.S. authorities routinely refuse to recognize the oversight role of universal and regional bodies for individual complaints; the U.S. Supreme Court, these authorities insist, is the final arbiter of legal matters.

Less understood is the relationship of civil society groups to U.S. exceptionalism, the constraints exceptionalist policies place on their advocacy, and their own contributions to exceptionalist practices. Almost without exception and until quite recently, most of those advancing rights in the United States have accepted the frame of civil rights and the U.S. Constitution, rather than narratives focusing on international human rights. As long as progressives were a majority on the Supreme Court, this strategy worked reasonably well. Understanding advocacy as limited to the domestic framework made it easy to overlook some of the potential structural problems such a strategy entails. Those limitations are magnified immensely when advocates cease to prevail in civil rights litigation. Reliance on the Constitution, for example, limits the scope of advocacy to the rights protected by U.S. law and its interpretation, to the exclusion of economic, social, and cultural rights (which are not protected in the Constitution). Reliance on the Constitution and the accompanying reverence for that document, and the values it embodies for those charged with its interpretation, also borders on support for the underlying premises of U.S. exceptionalism (the idea that the United States is fundamentally different and better than other nations and thus international norms relevant for every other nation are unnecessary in and for the United States). Thus, exclusive reliance on the U.S. Constitution and law not only is detrimental to efforts to hold U.S. authorities responsible for human rights violations in the present but also limits the capacity of advocates to imagine justice beyond the highly limited parameters imposed by the Constitution.

This Article contends that the evolving approach of the inter-American human rights system (IAHRS) to the human rights of Indigenous peoples and persons of African descent, including their economic, social, cultural, and environmental rights (ESCER), presents a key opportunity for U.S. civil society actors to expand beyond the dominant framework of civil rights discourse and domestic litigation. At the same time, it recognizes that developments in inter-American standards present challenges for engagement with the U.S. government, which has resisted accountability for racial discrimination and rejected the recognition of economic, social, cultural, and environmental rights.

Part I describes how the IAHRS's approach to the human rights of Indigenous peoples and persons of African descent has changed over time. In the landmark case Awas Tingni (2001), the IAHRS focused on land tenure as the primary legal basis for the rights of Indigenous peoples and developed standards regarding states' obligations when considering large development projects affecting Indigenous communities. Since then, the Inter-American Court of Human Rights has continued to develop its jurisprudence on Indigenous communities' rights, as will be detailed below. At the same time, the IAHRS has largely failed to address discrimination against persons of African descent in the United States, only beginning to take limited steps in recent years. Importantly, the IAHRS has also demonstrated an increasing willingness to address violations of ESCER with implications for the rights of people of Indigenous and African descent.

Part II assesses the challenges and opportunities these changes in the IAHRS's approach present for its engagement with U.S. government and civil society. The system's emerging willingness to address violations of ESCER could complicate its engagement with the United States, given the U.S. government's privileging of civil and political rights over ESCER. That said, the U.S. government's long history of resistance to international human rights law in general, and to international monitoring of U.S. racial discrimination in particular, suggests that the increasing attention to ESCER by the IAHRS would have limited practical implications. Of greater interest is the effect these changes might have on IAHRS engagement with U.S. civil society. According to historians and social scientists, U.S. Indigenous movements--unlike their counterparts in Latin America--have organized primarily around the concept of sovereignty, rather than rights, which has historically made the IAHRS less relevant to their struggles for justice. This Article suggests that U.S. Indigenous civil society actors could see greater utility in engaging with the IAHRS if the system's efforts to protect the ESCER of Indigenous communities elsewhere in the Americas prove effective. Historians and social scientists have also observed that U.S. Afro-descendant civil society has tended to privilege a rights framework and has a stronger international tradition than does U.S. Indigenous civil society. This Article suggests this makes U.S. Afro-descendant civil society actors even more likely than U.S. Indigenous civil society actors to increase their engagement with the IAHRS as the system develops standards on ESCER. Increased IAHRS attention to issues of racial discrimination also provides a basis for increased engagement of U.S. Afro-descendant civil society with the inter-American system.

Before beginning, a note about source material. We are lawyers with expertise in the inter-American system, not historians or social scientists who have studied U.S. social movements in depth, firsthand. For this reason, in Part II, we rely heavily on primary sources and our own insights about the IAHRS, whereas, in Part III, especially Subparts II.B and II.C, we rely on secondary sources from historians and social scientists, bringing their insights into conversation with the changes in inter-American jurisprudence we describe in Part I. Our goal is not to produce original research on U.S. social movements nor to characterize the broad and diverse array of Indigenous and Afro-descendant civil society actors in the United States. Instead, our claim is more limited: we note that historians and social scientists have observed certain general trends in the United States that might inform these actors' approach to engaging with the inter-American system.

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This Article thus posits that U.S. Indigenous and Afro-descendant civil society may develop a greater interest in the IAHRS, while the U.S. government will likely maintain its low level of engagement. Whether this theory is supported by greater engagement with the system in practice is a promising area for future research. In closing, we also suggest that the IAHRS could further increase the likelihood of U.S. civil society engagement, as well as U.S. government engagement, if its analyses and decisions are sensitive to the realities of the United States. For example, the IAHRS might, when applicable, call on Indigenous tribal governments to respect, protect, and fulfill rights and on the U.S. federal government to respect their sovereignty as the best way to ensure the enjoyment of rights by individuals within the tribal governments' jurisdiction. Perhaps the most effective way for the IAHRS to achieve these tailored analyses and recommendations is through frequent dialogue with civil society. This Article's review of inter-American standards and scholarship on U.S. social movements suggests that the work of the IAHRS has the potential to be more relevant to U.S. Indigenous and Afro-descendant civil society now than it has been in prior decades. Still, the IAHRS holds the potential to become even more relevant to U.S. Indigenous and Afro-descendant civil society if these actors assist in shaping the standards and calling for their application.

Visiting Professor, Yale Jackson School of Global Affairs; Professor of the Practice, Wesleyan University; Executive Director, University Network for Human Rights; former Commissioner (2014-2017) and President (2016-2017), Inter-American Commission on Human Rights.

Co-Director, Health and Human Rights Initiative, O'Neill Institute for National and Global Health Law, Georgetown University; Adjunct Faculty, Georgetown University; former Coordinator of the Case Section of the Inter-American Commission on Human Rights.

Forrester Fellow, Tulane University Law School; former Robina Fellow, Inter-American Commission on Human Rights (2021-2022).