Strategizing For Compliance: The Evolution of a Compliance Phase of Inter-American Court Litigation and the Strategic Imperative For Victims' Representatives.

INTRODUCTIONFor decades, international law and relations scholars have debated why nations comply, when they do, with international law.1 Some posit that compliance reflects rational calculations of national interest, while others argue that compliance is a response to the persuasive power of legal obligations.2 International lawyers, regardless of whether they have a rationalist or normative understanding of the effects of their work, generally accept the assertion by Louis Henkin that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."3 The assumed truth of this assertion has led many international lawyers to pursue their work without seriously evaluating its real impact or considering measures to make it more meaningful. As Oona Hathaway has aptly put it, "[t]he disinclination of international lawyers to confront the efficacy of international law is nowhere more evident or more problematic than in the field of human rights law."4There is, however, a marked increase in concern over the "compliance question" among international human rights lawyers, who are "eager to move beyond a discussion about why nations comply with international human rights law to a discussion about the process by which they can be made to do so."5 This concern has been reflected in a surge in scholarship about compliance with the decisions of regional human rights bodies,6 fora which present human rights lawyers with the rare opportunity to bring states to account for human rights violations perpetrated against individuals and communities. This increased attention to the topic has been mirrored by developments in the regional human rights systems themselves to address compliance deficits as they struggle with this question that cuts to the core of their legitimacy.7In the inter American human rights system, a particularly notable development is the evolution of a compliance phase of litigation before the Inter American Court of Human Rights ("the Inter American Court" or "the Court"), the highest human rights court in the Americas. History is clear that the open refusal by some states to comply with the Court's reparations orders led the tribunal to take the unprecedented step of issuing public orders highlighting particularly troubling cases of non compliance. These first orders sparked the development of a phase of litigation in which states, the representatives of victims, and the Inter American Commission on Human Rights ("the Inter American Commission" or "the Commission"), debate the adequacy of measures taken by the states to implement the reparations orders of the Court. In the decade since it inaugurated this practice, the Court has issued hundreds of compliance orders, addressing the implementation processes in over 80 percent of the cases in which it has issued reparations decisions, with multiple and complex orders in many of those cases.8The importance of this rapidly growing body of jurisprudence has not been lost on those engaged with the inter American system.9 International relations scholars have seized on these orders as potential windows into the tendencies of states to comply with human rights obligations10 and human rights practitioners have begun to develop an empirical narrative of the Court's success.11 However, despite the potential of this compliance jurisprudence to aid inter American litigants in understanding the viability of their litigation initiatives and improving their chances of achieving their desired outcomes, it has been underutilized for this purpose. This article aims to fill this gap, and provide guidance for those willing to strategize for compliance.This article provides a comprehensive review of the Court's compliance jurisprudence by developing a typology of the Court's reparations and systematizing all available information on the implementation of those reparations. By culling more than 90 experiences with implementation and providing both quantitative and qualitative analysis of these experiences, this article highlights the predictive potential of this body of jurisprudence. …