On 5 May 2021, hundreds of red dresses were displayed in the many mobilization events across Canada to mark the National Day of Awareness for Missing and Murdered Indigenous Women and Girls in the country. It is a significant day to remember more than a thousand Indigenous women and girls killed or stolen. It is important to remember them, their stories and names, including Francis Brown, from the Wet’suwet’en Nation. She was remembered during a demonstration as a well-known hunter and mushroom picker who knew the woods very well. One day, Francis “disappeared.” She has never been found, and her case remains unresolved — her mother never had closure before passing away.[1] Indeed, violence and discrimination against women and girls continue to be endemic all across the Americas and have been particularly acute against certain groups such as Indigenous women and girls, and Canada has not been an exception. The number of cases in the region is overwhelming, as well as the severity of many of them. In the last few years, thousands of women and girls have marched all over the hemisphere to have their voices heard, denouncing abuses and reaffirming their right to a life free of violence and discrimination.[2] March 8^th — international women’s day — and November 25^th — international day for the elimination of violence against women — have been marked by massive demonstrations, also because the high levels of violence against women and girls have been exacerbated in the context of the pandemic.[3]

Historically, girls and women of the Americas have been subjected to severe human rights abuses. With and for the advancement of a stronger framework for their rights, girls and women, domestic and international organizations, governments and academia, amongst others, have intensified their work addressing these pressing issues in the last few years.[4] In this spirit, the present article seeks to present, from a positivist point of view, some of the Inter-American Human Rights System’s (System or IAHRS) contributions to this matter. Thus, the article provides the main regional standards developed by the institutions of the IAHRS in this area of human rights law. Accordingly, the authors’ objective is not to provide an analytical perspective, but rather to expose what the IAHRS has advanced and offers on a very pressing matter across the continent. In this vein, it proposes an updated overview of the IAHRS’ main jurisprudential advancements for a Canadian readership interested in assessing the usefulness of the regime to promote and defend girls’ and women’s rights in Canada.[5] Considering their own situation, perspective and potential biases, respectively as Canadian male and Colombian female jurists, both human rights defenders, the authors do not intend to appraise the specific relevance of these developments for Canadian girls and women, but rather provide information and tools which can be useful for the latter’s struggles for rights.[6]

The text thus first addresses the Systems’ normative and institutional framework on this topic. It then illustrates its important jurisprudential contributions[7] in the specific area of women and girls’ rights in the Americas,[8] which mandate States to address core human rights concerns and have paved the way for the adoption of domestic legal standards essential for the better enjoyment of these fundamental rights and freedoms. The text thus focuses on the right to equality and non-discrimination, on the protection of women and girls from violence, and on the important issue of sexual and reproductive rights.[9] It concludes by briefly discussing the importance of these crucial developments and standards for all the States in the hemisphere, including Canada.

This section shows how the institutional tools to protect women and girls’ rights have evolved in the IAHRS, gaining increasing importance as the system has provided even more attention to this pressing matter. The issue of women’s rights has timidly made its way on the Inter-American Human Rights agenda over the years. There were indeed efforts to create a space for women in the Pan American Union (PAU),[10] the predecessor of the Organization of American States (Organization or OAS). It created the Inter-American Commission on Women (CIM) in 1928, giving it the mandate to conduct a study of the legal status of women in the Americas.[11] This resulted in the Convention on the Nationality of Women,[12] the first international treaty on women’s rights, adopted in 1933.[13]

During the 1948 conference held in Bogota, which saw the adoption of the OAS Charter[14] and the creation of the Organization, the Member States also adopted the Inter-American Convention on the Granting of Civil Rights to Women and the Inter-American Convention on the Granting of Political Rights to Women.[15] In addition, one should recall the American Declaration,[16] adopted in 1948, the American Convention (Pact of San José),[17] adopted in 1969, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).[18] They all also contain a series of articles addressing women’s rights directly or indirectly, in particular through the prism of the right to equality.[19]

But the cornerstone of the Inter-American Human Rights System regarding the rights of girls and women is definitely the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, more commonly known as the Bélem Do Para Convention, which was adopted in 1994.[20] This treaty defines violence against women — of all ages and backgrounds — and reiterates the right of women to have a life free of violence, both in the public and private spheres. In accordance with this convention, States must investigate, prosecute and punish perpetrators of violence, and adopt measures to prevent and eliminate all forms of violence against women and girls, taking “special account of the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons,”[21] as provided in Article 9. The Inter-American Commission on Human Rights (IACHR) is competent to receive individual complaints relating to a part of this convention.[22] The Inter-American Commission of Women, in addition to its various statutory functions,[23] is also partly responsible for the observance of the Bélem Do Para Convention (Article 19) through a mechanism that reviews periodic reports submitted by States parties describing the measures adopted to implement that convention.[24]

In 1994, the IACHR established a Rapporteurship on the rights of women. It is composed of one of the commissioners, acting as a Rapporteur, and a team of human rights specialists, which assist the IACHR in its thematic and country reports, as well as during its visits,[25] and in the processing of women’s rights related petitions.[26]

Both the IACHR[27] and the Inter-American Court of Human Rights (IACTHR or the Court)[28] have adopted important decisions dealing with girls’ and women’s rights, in particular regarding the rights to equality and non-discrimination, gender-based violence, as well as sexual and reproductive rights. Many of these precedents have been discussed in the literature.[29]

From its earlier decisions,[31] the IACHR has stated that discrimination on the basis of gender is prohibited under the American Convention. In the María Eugenia Morales de Sierra case,[32] for example, it ruled that by adopting legislation that expressly treated women differently from men, without legitimate and justified reasons, Guatemala had violated Articles 1 and 24 of the Convention.[33] In this case, the Guatemalan civil code prevented a woman from exercising certain rights without her husband’s authorization, for example, undertaking commercial activities outside her home, entering into contractual agreements or bringing legal actions to court. The Commission considered that the justifications invoked by the State were not imperative and, rather, marginalized women. While doing so, the IACHR interpreted the American Convention in light of the United Nations (UN) Convention on the Elimination of All Forms of Discrimination against Women. This Convention expressly provides that

States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.[34]

The IACHR also addressed briefly the indirect discriminatory effects of legislation on women in the Elena Tellez Blanco 2007 admissibility decision dealing with a Costa Rican program regulating the work of “Substitute Aunts” in shelters or residences for children.[35] The Commission admitted the case inter alia on the basis that the workload to which the victim was allegedly subjected could, if proven, have a disproportionate impact on women, since only women occupy the ‘Aunt’ positions, subjected to harsh employment conditions and work hours.[36]

In its 1998 and 1999 annual reports, the IACHR addressed the issue of affirmative action measures in favour of women, which States should adopt in certain circumstances when required to achieve substantive equality of opportunity, particularly for groups that have been historically marginalized.[37] For the Commission, these affirmative action programs do not constitute discrimination to the extent that they have an objective and reasonable justification, and have an effect proportional to their aim.

Both the Court and Commission have contributed significantly to developing standards of the rights to equality and non-discrimination regarding lesbian women.[38] In the 2012 Atala Riffo case, for instance, the IACTHR concluded that Chile’s legislation denying custody rights to a lesbian mother because of her sexual orientation violated her rights to equality and non-discrimination, privacy, and protection of honor.[39] It indicated, more specifically, that

States must abstain from carrying out any action that, in any way, directly or indirectly, is aimed at creating situations of de jure or de facto discrimination. The States are obliged to take affirmative measures to reverse or change discriminatory situations that exist in their societies to the detriment of a specific group of persons. This implies the special obligations to protect that the State must exercise with regard to acts and practices of third parties who, with its tolerance or acquiescence, create, maintain or promote discriminatory situations.[40]

Similarly, in the 2018 Merits Report of the Marta Lucía Álvarez Giraldo case, the Commission found that the State of Colombia violated several of Marta Álvarez Giraldo’s rights because she was discriminated against as a lesbian woman in prison.[41] Between 1994 and 2002, she was not allowed an intimate visit. In 2002, her rights were protected by the Constitutional Court of Colombia, but harm and suffering had already been caused during the previous years. Based on the difference between “distinction” and “discrimination,” the Commission determined — among others — that negative social stereotypes associated with women’s exercise of their sexuality and lesbian women were used to deny Marta’s rights.[42]

The heightened vulnerability of women in prison was also recognized by the State of Ecuador in a 2013 Friendly Settlement before the Commission regarding Karina Montenegro and others.[43] In this case, five women were arbitrarily detained. At the moment of their detention, four were pregnant, and one was over 65 years of age. Still, in contravention of Ecuadorian law, they were detained and taken to jail, when they should have been given house arrest due to their specific conditions. Moreover, the detention extended in time, and the newborns were kept in prison for their first 90 days of life, without adequate medical attention. This illegal detention generated physical, mental and moral damages to the women, aggravated by their special situation of vulnerability. Their newborns were also negatively affected. In its admissibility report, the Commission had already acknowledged that the alleged violations could contravene the rights of women and children.[44] In the settlement, the State acknowledged its responsibility for not complying with the law and not having granted greater protection to people of vulnerable groups such as children, the elderly and pregnant women.[45]

In this vein, both the Commission and the Court have also adopted clear standards on the issue of double discrimination and intersectional discrimination faced by some women.[46] Both have recognized that some women and girls may be exposed to double or multiple vulnerabilities, based on their age, race, ethnic origin, status as human rights defenders, among others, sometimes even aggravated by certain circumstances or contexts.[47] This is, for example, the case of the Employees of the Fireworks Factory of Santo Antônio de Jesus in Brazil adopted by the Court. On 11 December 1998, a fireworks factory exploded in the state of Bahia. As a result, 60 people died, and six survived. The majority of them — the survivors and the dead — were Afro-descendant women in a situation of poverty and low education. The facilities and working conditions were very precarious, and their pay was very low. The majority of the survivors were also women and girls, and none received adequate medical attention. After almost two decades, they were still seeking justice for what happened, as most of the judicial processes were still pending. Consequently, among others, the IACTHR found that the victims of this devastating accident were immersed in patterns of structural and intersectional discrimination, aggravated by a situation of structural poverty and lack of opportunities.[48]

Another example is the case of Ana Teresa Yarce and four other women human rights defenders in the “Comuna 13,” Medellin, Colombia. On 6 October 2006, Ana Teresa was murdered. She and the other women human rights defenders had suffered severe violence in reprisal for their actions defending human rights; including, criminalization based on fabricated criminal charges, forced internal displacement, harassment, stigmatization and numerous death threats.[49] In this case, the IACTHR recognized that the vulnerabilities of these victims were heightened because they were women and human rights defenders in a general context of violence against women and violence against women human rights defenders within an armed conflict. Furthermore, the forced displacement affected them in a different and disproportionate manner, exposing them to increased risks and vulnerabilities as women leading the defence of human rights in their communities.[50]

In this regard, as mentioned, it is important to note that Article 9 of the Bélem Do Para Convention provides that States must

take special account of the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons. Similar consideration shall be given to women subjected to violence while pregnant or who are disabled, of minor age, elderly, socioeconomically disadvantaged, affected by armed conflict or deprived of their freedom.[51]

In the Gonzales Lluy case dealing with the right to life, physical and moral integrity and education of a young girl infected with HIV AIDS in an Ecuadorian facility, the Court took into consideration the victim’s gender, age, poor economic situation and health status. It also concluded that these factors added one to another and intersected to constitute a distinct motive of discrimination.[52]

Similarly, in the 2016 decision on the case I.V. against Bolivia (addressed further in the last section of this text), the Court discussed how certain women could be placed in situations of greater vulnerability due to an intersection of multiple discriminations. In this specific instance, the victim suffered sterilization without her consent. The Court noted that multiple levels of discrimination based on gender, socio-economic situation, and migratory status also affected this woman’s effective access to justice.[53]

Moreover, the IACHR has addressed in greater detail, in some of its thematic reports, the need and importance of adopting an intersectional approach to the processing of cases of human rights violations against women,[54] in particular against Indigenous women.[55]

Before discussing next the worrying issue of violence against women, it is necessary to reiterate that such violence is a human rights violation, and it is discriminatory by its very nature. Indeed, the preamble of the Bélem Do Para Convention specifically indicates that “violence against women is an offense against human dignity and a manifestation of the historically unequal power relations between women and men”.[56] Indeed, in the 2006 Castro Castro Prison case dealing with security forces repression of an uprising in a Peruvian jail, the IACTHR recalled the observations of the UN Committee for the Elimination of Discrimination against Women as the definition of discrimination against women “includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately,” and that “[v]iolence against women is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men”.[57]

In addition, Article 6 of the Bélem Do Para Convention expressly indicates that

[t]he right of every woman to be free from violence includes, among others, the right to be free from all forms of discrimination and […] to be valued and educated free of stereotyped patterns of behavior and social and cultural practices based on concepts of inferiority or subordination.[58]

The Commission addressed this specific issue in its 2001 ruling on the Maria da Penha Maia Fernandes v Brazil case, where the victim had been subjected to domestic violence in a context of rampant and systematic impunity in Brazil. The IACHR considered in particular that the stereotypes associated with women and domestic violence, and the generalized pattern of negligence and tolerance of the phenomenon by the authorities resulted in discriminatory judicial ineffectiveness, which constituted violations of the American Convention and the Bélem Do Para Convention.[59] This approach was reaffirmed several times by the Commission and the Court, including the 2018 IACTHR decision of the case of Linda Loaiza López Soto against Venezuela. In this case, the victim was kidnapped and suffered severe violence — including sexual slavery and torture — in the hands of someone she knew. The Court considered that the violations committed against her were exacerbated by the State authorities’ prejudicial gender stereotypes during the investigation and the trial of the accused.[60]

Even before the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women entered into force, the IACHR had already adopted standard-setting precedents on this issue of the utmost importance for the Americas.[61] In its 1996 Raquel Martín de Mejía decision,[62] dealing with the case of a woman raped by the Peruvian armed forces, the Commission was the first international adjudicative body to qualify rape as torture under international law — even before the European Court of Human Rights and the UN Ad Hoc International Criminal Tribunals for Rwanda and the Former Yugoslavia.[63] The IACHR confirmed this approach in the 2001 Ana, Beatriz and Celia Gonzalez Perez case. There, taking into consideration the Bélem do Para Convention, it indicated that rapes committed by Mexican State agents as well as the authorities’ subsequent inaction to investigate, judge and sanction these crimes triggered the State’s responsibility not only under the American Convention but also under the Inter-American Convention to Prevent and Punish Torture.[64]

In the above-mentioned Castro Prison judgment[65], the Court reiterated this qualification of rape as torture and provided detailed legal definitions of rape and sexual violence.[66] Moreover, in two important 2010 judgments dealing with Indigenous women and girls raped and sexually abused by Mexican military personnel, the Rosendo Cantu case and the Fernández Ortega case, the Court also concluded that such violations infringed upon the victims’ rights to private life and dignity.[67] Both the Commission and the Court have described various acts of violence and rape committed by State agents as forms of torture.[68]

Similarly, the Court, in the 2018 case of Women Victims of Sexual Torture in Atenco v. Mexico, indicated that for a rape to be classified as torture, the intentionality, the severity of the suffering and the purpose of the act must be analyzed, taking into consideration the circumstances of each case. In this specific situation, protests taking place in Atenco in May 2006 were severely repressed by the police, and 11 women were arbitrarily detained. While the police transported them to the detention center, they were subjected to extreme violence, including rape and other forms of sexual violence. Once in the detention center, many of the women suffered further violations, also by the medical personnel that was supposed to examine them. The Inter-American Court found that the rape, sexual violence and many abuses suffered by these women constituted torture, both physical and psychological.[69] It also considered that these acts of torture were used as a form of social-repressive control and constituted discrimination based on gender.[70]

One should highlight that, in its standard-setting 2010 “Cotton Field” decision (González et al.), the Court dealt with several aspects of the sadly famous situation of feminicides in Ciudad Juárez in the North of Mexico. In addition to setting other relevant principles, it reiterated the State’s due diligence duty to prevent violence against women and girls, including in the context of “disappearances,” considering the particular circumstances of vulnerability to which women can be exposed.[71] This case was about the responsibility of the State for the “disappearance” and subsequent death of Claudia Ivette González, Esmeralda Herrera Monreal and Laura Berenice Ramos Monárrez — two of them girls — whose bodies were found in a cotton field in Ciudad Juárez on 6 November 2001. The IACTHR considered that the authorities did not take measures to protect the victims, to prevent these crimes, to investigate them with due diligence, and to respond effectively and adequately, while the State was fully aware of the existence of a pattern of gender violence resulting in the “disappearance” or death of hundreds of women and girls.

This principle of due diligence to prevent violence against women and girls was reiterated in two subsequent decisions about the same crime of feminicide, this time in Guatemala.[72] In 2014, the Court adopted a decision in the case of Veliz Franco et al. The case originated on 16 December 2001, when 15-year-old María Isabel Veliz Franco left her home to go to work and never came back. Despite the complaint about her “disappearance,” the authorities did nothing to try to find her. Two days later, her body was found. A series of irregularities occurred during the investigation into her “disappearance” and subsequent death. The Court considered that Guatemala had failed to protect the life and integrity of the victim,[73] as it did again a year later in the 2015 case of Velásquez Paiz et al., dealing with a young woman who had “disappeared” in 2005. More specifically in that case, when the victim’s relatives went to report the “disappearance,” the authorities required them to wait 24 hours before doing so. However, the State agents were well aware of the existing context of violence against women that put the victim in imminent danger. Ultimately, her body was found the following day with signs of sexual and extreme violence. The IACTHR considered that the State did not take immediate and exhaustive measures to find and protect the young woman after learning that she was missing.[74] In both cases, the Court also indicated — among others — that the State had the obligation to compile information and document the circumstances of vulnerability to which the victims were exposed in order to tailor more effective preventive measures.[75]

The Court has addressed in greater detail specific aspects of diligent investigations which should be undertaken by State authorities in cases of violence against women,[76] as required by Articles 8 and 25 of the American Convention[77] as well as Section 7(b) of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.[78] For instance, in the above-mentioned feminicides cases, the Court indicated that, during such investigative operations, State agents should adopt a gender perspective and ensure that victims can access justice fully, and free from stereotypes. For instance, in the “Cotton Field” case, the IACTHR established that the investigative authorities considered the victims to be “flighty” or that “they had run away with their boyfriends,” which added to the State’s inaction at the start of the investigation. The Court concluded that

as a result of its consequences as regards the impunity in the case, this indifference reproduces the violence that it claims to be trying to counter, without prejudice to the fact that it alone constitutes discrimination regarding access to justice. The impunity of the crimes committed sends the message that violence against women is tolerated; this leads to their perpetuation, together with social acceptance of the phenomenon, the feeling women have that they are not safe, and their persistent mistrust in the system of administration of justice.[79]

This was reaffirmed by the Court in I.V. v. Bolivia, where it also added that such ineffectiveness or indifference of the judicial system constitutes, in itself, discrimination against women in access to justice.[80]

In both previously mentioned 2010 Mexican cases, Rosendo Cantu and Fernández Ortega, the Court dictated that investigative authorities had to prevent the revictimization of the women. They had to ensure their effective and willful participation in the investigation, considering linguistic and cultural obstacles as the victims were Indigenous women.[81] The Inter-American Tribunal also provided detailed indications of the specific technical requirements for investigating a sexual violence case, particularly regarding the investigators’ interactions with the victims.[82] In 2018, in the Atenco case, mentioned before, it found that the stereotypical and discriminatory treatment that the women received during the investigative and medical process was revictimizing. Also, the Court recalled that States have the obligation to establish the possible responsibilities of the officials who contribute to such acts of revictimization and institutional violence.[83]

The above-mentioned obligations of States to prevent and investigate with due diligence acts of violence against women apply to acts committed by public authorities and private actors.[84] Thus, it includes acts of violence committed in the context of domestic violence, a situation expressly covered by the Bélem Do Para Convention. Article 2 defines the concept of violence against women and includes

physical, sexual and psychological violence: a. that occurs within the family or domestic unit or within any other interpersonal relationship, whether or not the perpetrator shares or has shared the same residence with the woman, including, among others, rape, batteries and sexual abuse; b. that occurs in the community and is perpetrated by any person, including, among others, rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place; and c. that is perpetrated or condoned by the state or its agents regardless of where it occurs.[85]

While violence perpetrated by private actors cannot always trigger State responsibility[86], it can, however, give rise to a human rights violation attributed to the State when the latter does not act with due diligence, for example, to protect those at risk or to prevent, investigate or sanction these acts of violence.[87]

Similarly, and in addition to the previously mentioned 2001 Fernandes case,[88] the Commission found in the 2011 Jessica Lenahan (Gonzalez) et al decision that the State agents had failed to undertake reasonable measures to prevent domestic violence even though they knew or should have known of a situation of risk. This was the first complaint brought by a domestic violence victim against the United States of America for alleged international human rights violations. In this case, Jessica Gonzales’ estranged husband abducted her three daughters in violation of a domestic violence restraining order. Ms. Gonzales repeatedly called and met with the police to report the abduction and restraining order violation. But the police failed to respond to her urgent calls. Ten hours after her first contact with the police, Ms. Gonzales’ estranged husband arrived at the police station and opened fire. The police immediately shot him dead and then discovered the bodies of the three girls in his pickup truck. Public authorities undertook no effective criminal investigation after that. In the course of the civil lawsuit against the police filed by Jessica, the Supreme Court decided in 2005 that she was not entitled to have the restraining order enforced by the police under the United States Constitution. In its decision, the Inter-American Commission indicated, among others, that

[t]he obligations established in Article II [of the Declaration] extend to the prevention and eradication of violence against women, a crucial component of the State’s duty to eliminate both direct and indirect forms of discrimination. In accordance with this duty, State responsibility may be incurred for failures to protect women from domestic violence perpetrated by private actors in certain circumstances.[89]

In certain circumstances, there can also be an enhanced obligation of due diligence, no-revictimization and special protection, such as in instances of violence against girls. This was the case, for example, of the 2018 judgment of V.P.C. et al v Nicaragua,[90] dealing with the criminal investigation and subsequent legal processes on the rape of an eight-year-old child by a non-state actor, allegedly the victim’s father. The IACTHR indicated that, in such circumstances, the State must at a minimum ensure access to relevant information relating to judicial processes, provide free legal aid to victims so that they can participate in the latter and protect their rights, including the right to be heard within a reasonable time. In addition, the State must ensure that victims are interviewed only when necessary and appropriate, by competent and trained personnel, while respecting the rights of victims to safety and private life. Finally, the authorities must ensure the victims with immediate psychological and medical assistance provided by specialized professionals and in accordance with a gender perspective and the needs of minors. The Court dealt more specifically with the conditions relating to physical examinations carried out by the authorities on such victims of sexual crimes. It indicated that this type of procedure should be carried out after obtaining the consent of the victim’s representative, who should be authorized to choose the sex of the professional specializing in child and juvenile gynecology who will carry out the intervention. This should be done in a way that avoids or minimizes additional trauma and revictimization of the child, be performed in an appropriate place, respecting the victim’s right to privacy, and in the presence of an accompanying person if requested.[91]

Before addressing women’s sexual and reproductive rights in the next section, it is important to note that many decisions dealing with instances of violence against women also address these specific rights. For example, in addition to the V.P.C. et al v Nicaragua judgment discussed above, one should also consider the recent case of Paola Guzmán Albarracín v Ecuador. In that instance, the victim, a 16-year-old girl who was attending public school, died as a result of medication that she took to kill herself. Prior to her death, the school authorities, who knew of her intoxication, delayed her admission to a hospital, where she was finally taken and later died, leaving a suicide note commenting on sexual abuses that she had been suffering. Since she was 14 years old, the victim had been suffering rape, harassment and sexual abuse by the vice-rector of her school, who had her dominated with the idea of helping her to pass school subjects with which she had difficulty. This abusive situation was known to the school staff, which did not take any action to protect her and rather tried to cover the situation. For almost 18 years, Paola’s relatives sought justice, but the accused remains a fugitive. The crime’s investigation in many ways blamed the victim and the criminal action was eventually declared prescribed. In the face of such serious violations, the Inter-American Court declared the responsibility of the Ecuadorian State, explaining that the rights to personal integrity and life entail freedoms, among which is sexual freedom and control of one’s own body. Such freedoms can be exercised healthily by adolescents to the extent that they develop the capacity and maturity to do so and are provided with adequate sexual education addressing concepts such as prior consent to sexual intercourse, abuse of authority and dominating positions that may hinder such consent. The Court concluded that the girl’s right to a life free of sexual violence in the education sphere was violated.[92]

At the beginning of the 2010s, important milestones were set in the Inter-American System regarding women’s sexual and reproductive rights. The Commission published two important thematic reports on the issue: Access to Maternal Health Services from a Human Rights Perspective in 2010 and Access to Information on Reproductive Health from a Human Rights Perspective in 2011.[93] Similarly, the Court adopted the 2010 Xákmok Kásek Indigenous Community case, dealing with the members of an Indigenous community that was reclaiming its traditional lands, where it found Paraguay responsible for the death of certain victims because it had not complied with its obligation to plan and provide adequate health assistance to pregnant women in accordance with the State’s international obligation to ensure special measures of protection for pregnant women.[94]

Moreover, in the 2011 Gelman case dealing with the enforced “disappearance” of pregnant women by Argentinean and Uruguayan authorities, the Court found violations of the victim’s rights to life, personal integrity, liberty, private life and dignity (as well as many other rights). The Court considered her pregnancy as a condition of particular vulnerability. The State agents forced the victim to give birth during her clandestine detention and provided a new identity to the child, who was later given away to another family. The Court considered those violations to “reveal a particular conception of women that threatens freedoms entailed in maternity, which form an essential part of the free development of the female personhood.”[95]

There are other important standards regarding women’s sexual and reproductive rights adopted to address the context of maternity. In the I.V. v Bolivia case, mentioned briefly in both previous sections, the victim was admitted in July 2000 to the Women’s Hospital in La Paz, Bolivia. She experienced the spontaneous rupture of the membranes at week 38.5 of her pregnancy and pain at the level of the caesarean section that she had undergone in 1982. The fetus was in a transversal position, and thus a caesarean section was performed. After the newborn was taken for examination, I.V. underwent a bilateral tubal ligation, although she had not consented to the intervention. In its 2016 decision, the IACTHR emphasizes the intrinsic relationship between maternal health and women’s rights to privacy and personal integrity. It also analyzed the fundamental importance of fully ensuring the previous, free and informed consent of women to medical interventions. It provided procedural and technical medical requirements in this regard. It recognized that several factors limit the capacity of women to make free and informed decisions related to their reproductive health. For example, the limited access to health services, the power relations existing between a woman and her husband, family, community, or the medical staff, and stereotypes regarding women.[96]

Similarly, in its 2012 standard-setting judgment on in vitro fertilization, Artavia Murillo v Costa Rica, the Court reiterated that the decision of whether or not to become a mother is an essential part of the rights to private life and free development of women.[97] Also, the rights to privacy and personal integrity include the right to reproductive autonomy, access to reproductive health services, and relevant information in this regard. It also indicated that “[t]he lack of legal safeguards that take reproductive health into consideration can result in a serious impairment of the right to reproductive autonomy and freedom,” and that “there is a connection between personal autonomy, reproductive freedom, and physical and mental integrity.”[98] It also added that women’s right to enjoy the benefits of scientific progress

in order to exercise reproductive autonomy and the possibility to found a family gives rise to the right to have access to the best health care services in assisted reproduction techniques, and, consequently, the prohibition of disproportionate and unnecessary restrictions, de iure or de facto, to exercise the reproductive decisions that correspond to each individual.[99]

The IACHR first addressed the issue of abortion and the right to life, in the Baby Boy case adopted in the early eighties, dealing with an abortion that took place in the United States in accordance with US law.[100] It analyzed the drafting history (travaux préparatoires) of Article I of the Declaration. It concluded that the drafters had preferred to omit language that would oblige States to derogate laws that allowed abortions in certain circumstances and adopted a broader version of the text “Every human being has the right to life, liberty and the security of his person.” Similarly, in light of the travaux préparatoires of Article 4.1 of the Convention,[101] the IACHR concluded that while the drafters of the Pact of San José included a reference to the protection of life “from the moment of conception”, they also inserted the words “in general” to avoid obliging States to derogate laws which allowed abortions.[102] Thus, the IACHR refused to recognize that, in that specific case, by allowing an abortion to take place, the United States had violated the American Declaration.

The Court confirmed this interpretation in its above-mentioned 2012 decision on in vitro fertilization, when it indicated, that “the object and purpose of Article 4(1) of the Convention is that the right to life should not be understood as an absolute right, the alleged protection of which can justify the total negation of other rights.”[103] It also added, after having reviewed decisions of the supreme/constitutional courts of the United States, Germany, Spain, Colombia, Argentina and Mexico on the topic, that

it can be concluded from the words ‘in general’ that the protection of the right to life under this provision is not absolute, but rather gradual and incremental according to its development, since it is not an absolute and unconditional obligation, but entails understanding that exceptions to the general rule are admissible.[104]

The Court also specified that “the term ‘in general’ infers exceptions to a rule, but the interpretation in keeping with the ordinary meaning does not allow the scope of those exceptions to be specified.”[105] This being said, these exceptions could certainly include certain types of situations already encountered by both the Commission and the Court in decisions dealing with friendly settlements[106] as well as precautionary[107] and provisional measures[108] where both indicated that abortions must be made available in certain circumstances, including in cases of pregnant girls victims of rape, when the health of the mother is at risk and when the fetus is not viable.[109]

This was the case, for example, of the friendly settlement regarding the case of Paulina del Carmen Ramírez Jacinto in Mexico. On 31 July 1999, 14 years old Paulina was raped in her home. The incident was immediately reported to the Public Prosecutor’s Office. The rape resulted in a pregnancy, which Paulina and her mother decided to abort. It was a legal option based on Article 136 of the Baja California Criminal Code. Thus, on 3 September 1999, the Public Prosecutor’s Office authorized the medical intervention to be performed at a public hospital. She received an appointment for October 1^st and remained at the hospital until October 8^th, but — while she was forced to fast — the procedure was never performed. Paulina and her mother then went back to the Public Prosecutor’s Office, which repeated the order for the medical procedure. Following that, the State Attorney General took Paulina and her mother to a priest. On 13 October 1999, Paulina was readmitted to the hospital. The next day, two women — invited by the hospital’s director, but who had no connection to the health services — visited Paulina while her mother was not present. They showed her violent videos of abortion and subsequently did the same with her mother, intending to dissuade them. On 15 October 1999, moments before the medical intervention, the hospital’s director met with Paulina’s mother to describe the alleged risks of the procedure and claim that she would be the only person responsible in the case of Paulina’s death. This intense pressure succeeded in deterring Paulina’s mother from carrying out the medical procedure. After a long negotiation with the State, a settlement was reached, and although the Commission did not rule on the merits, it did say that

the Convention of Belem do Para states that the victims of sexual violence are entitled to the recognition, enjoyment, exercise, and protection of all their human rights […] [and] the health of sexual violence victims should be treated as a priority in legislative initiatives and in the health policies and programs of Member States.[110]

Another example is the case of B in El Salvador, where one of the strictest anti-abortion laws in the world applies. In fact, many women—mostly from marginalized sectors of the Salvadoran society—have been unjustly sent to prison accused of aggravated homicide because they have had a miscarriage.[111] In the case of B, on 29 April 2013, the IACHR granted precautionary measures in her favour. B was suffering from various pathologies, her pregnancy had a high risk of death for her, and the fetus was anencephalic. Yet, the State had not taken any measures to protect her life or integrity. Thus, the IACHR granted precautionary measures to protect her rights and requested the State to implement recommended medical treatment aiming to protect her life, personal integrity and health. A treatment was then practiced, and the Commission lifted the measures on 19 August 2013.[112]

Both the Commission and the Court have yet to rule on such situations in ordinary contentious matters. Yet, both

the universal and inter-American human rights systems have progressively and consistently addressed the impacts of the denial of such services on women’s rights (i.e., health services that women and girls alone need by reason of their gender and reproductive rights), and in particular the impacts of total criminalization of abortion in the countries of Latin America and the Caribbean.[113]

In addition, in its 2012 decision on in vitro fertilization, the Inter-American Tribunal also indicated that it had

used different methods of interpretation that have led to similar results according to which the embryo cannot be understood to be a person for the purposes of Article 4(1) of the American Convention. In addition, after analyzing the available scientific data, the Court has concluded that “conception” in the sense of Article 4(1) occurs at the moment when the embryo becomes implanted in the uterus, which explains why, before this event, Article 4 of the Convention would not be applicable.[114]

These Inter-American decisions dealing directly or indirectly with the interruption of pregnancies and which have been discussed thoroughly in the literature[115] follow the same tendency as similar legislative developments in the region[116] and jurisprudential developments adopted within the United Nations System,[117] for example, by the Committee on the Elimination of Discrimination Against Women,[118] the Human Rights Committee,[119] the Committee of the Rights of the Child,[120] as well as in the European Human Rights System, by the former European Commission on Human Rights[121] and by the European Court,[122] which have considered certain permissive abortion laws compatible with their respective human rights treaty.

As presented in this article, the Inter-American System has contributed significantly to the progress of important standards related to the protection of human rights of women and girls in the Americas, in particular with respect to the rights to equality and non-discrimination, to be free from violence against women, and to sexual and reproductive rights. These developments have been more prolific in the last few years; thus, some may consider that they come rather late in a long process towards strengthening regional and national normative and institutional frameworks for women and girls in the region. Also, some could argue that the UN System, particularly the avenues offered by the Committee on the Elimination of Discrimination Against Women (CEDAW), is sufficient to address violations of women and girls’ rights. This paper, however, demonstrates that the Inter-American Commission and Court of Human Rights’ recent decisions and developments have been crucial to address pressing human rights issues for women and girls in the region, particularly in regards to rampant violence and discrimination. Many concerns remain, of course, in particular as to the System’s capacity to provoke real social change as to girls and women’s rights, in a region where the status quo has often been the answer on the matter. Notwithstanding the Court’s “conventionality control” powers,[123] many could criticize the limitations to the implementation of Commission and Court decisions by States,[124] in particular in the area of women’s human rights.[125] Yet, the System’s contributions to specific cases and direct and indirect positive impacts on the advancement of normative and institutional frameworks in Latin America and the Caribbean is undeniable.

The struggle for women’s human rights in the Americas also has broader implications for other issues, such as the universalization of the System.[126] In fact, progress in the protection of women’s human rights is particularly relevant to the debate related to the ratification by the United States of the American Convention or the latter’s adhesion by Canada.[127] As for the Canadian process,[128] it is certainly central and very rightly so.[129] The present contribution has demonstrated how relevant the IAHRS can be for addressing many of the important human rights concerns faced by Canadian women today, particularly regarding equality and non-discrimination, violence against women and sexual and reproductive rights.

This is certainly the case, for example, of the crucial issue of intersectional discrimination experienced by many women across Canada.[130] The relevance of this approach to Canadian women’s equality rights has long been demonstrated, including by the Ontario Human Rights Commission[131] and former Supreme Court Judge Claire L’Heureux Dubé.[132] It is needed more than ever to adequately consider the human rights violations experienced by Indigenous women, as argued earlier by the authors.[133]

Similarly, the issue of violence against women, in particular in the case of Indigenous women, is on top of the country’s human rights agenda, including the recommendations of the National Commission of Enquiry into Missing and Murdered Indigenous Women and Girls that are being implemented. On this specific matter, one should recall the substantive findings and methodological recommendations made by the Inter-American Commission in its 2014 Report on Missing and Murdered Indigenous Women in British Columbia.[134]

Finally, the IAHRS’s recent developments on the issue of women’s reproductive health are also extremely pertinent to the Canadian reality, where abortion and women’s rights have been central to many social, legal and political debates,[135] and where recent reports of Indigenous women having been forcibly sterilized have shocked the country.[136]