Toward Fair Play: A Decade of Transformation and Resistance in International Human Rights Advocay in Brazil

In conferences and panels on human rights practice in Brazil, I often resort to a simplified analogy between soccer matches and international human rights litigation and advocacy, one certain to be understood in the world's premier soccer nation. The analogy concerns the expectations that a player or team brings onto the field at the beginning of any match, and those of a litigant (or attorney) seeking to bring her case before an international human rights oversight body. To begin, I tell the audience that the players expect fair play: that the other team has recognized the competition itself and its rules; that the other team has joined a league or confederation and has ceded to that body some control over the match; that the other side will respect the rules that have been established for match play and will abide by the determinations of the judges and referee during the course of the match. Finally, and perhaps most importantly, players expect that the other team will respect the final outcome of the match and will assume the consequences inherent in that decision. When the match decides a championship, one team expects that the other will surrender the championship trophy. Were soccer more like international human rights litigation, it would be an odd spectacle: teams would often play uncontested matches, flagrant fouls would be committed without penalties, players would routinely disregard the referees' rulings, and the losers would often return home self-declared victors. How does one play in these circumstances? As in most of the developing world (and in many developed states), the greatest challenge facing human rights lawyers in Brazil is the inherent weakness of the mechanisms established to oversee compliance with treaty norms and assure implementation of decisions by international bodies within the country. In direct contrast with the practice of law as taught in law school, much of the practice of international human rights advocacy concerns how best to respond when the state does not comply with or even acknowledge the fundamental presumptions that underlie the legal process. Such noncompliance runs the gamut from the nonratification of a treaty, the failure to recognize the oversight jurisdiction of a UN Committee or regional body, the failure to follow deadlines and other procedural norms during litigation, or the failure to implement the recommendations and determinations of international bodies. 1. RULES OF ENGAGEMENT States may not recognize the jurisdiction of international oversight bodies without first ratifying the treaties that establish these bodies. Largely due to its misguided belief that it had achieved a racial democracy, and thus would not suffer adverse consequences, the Brazilian military government ratified the International Covenant on the Elimination of All Forms of Racial Discrimination in 1968. Some two decades later, during its transition to democracy and in the first years of its posttransition civilian government, Brazil ratified the remaining five United Nations core human rights treaties, as well as the American Convention on Human Rights, the principal rights treaty in the inter-American system of the Organization of American States ("OAS").1 Yet notwithstanding its recognition of these international agreements, Brazil refused to accept the jurisdiction of the oversight bodies created by the treaties themselves for a decade after its ratification of the last of these seven treaties. The lone exception to this rule was Brazil's recognition of the Inter-American Commission on Human Rights ("IACHR" or "Commission") individual complaints mechanism, which is an implied consequence of OAS membership even without ratification of the American Convention on Human Rights.2 Over the course of 2002, IMAGE FORMULA6 the Brazilian government recognized the jurisdiction of the United Nations treaty bodies that oversee racial and gender-based discrimination. …