Regional Human Rights Courts and Institutional Failure

This paper investigates the role of the regional human rights system in Europe and Latin-America in combating institutional failure, as opposed to addressing individual instances of human rights violations. I define institutional failure as a violation of a constitutional duty, typically a human right, of large scope ie that 1. affects large numbers of people, 2. has been ongoing for a considerable amount of time, and/or 3. concerns sufficiently important rights/values. The paper explores what mechanisms regional human rights bodies have in the past used to address broader structural or systemic failures (eg ECHR’s pilot procedure), how effective such mechanisms have been from a comparative law perspective and whether we see a trend towards convergence in this regard. It also raises the question of the legitimacy of regional courts engaging in remedying institutional failure which often involves them in comparatively detailed questions of policy typically reserved to other branches.