Settle or litigate? Consequences of institutional design in the Inter-American system of human rights protection

Abstract

Why do states engage in settlements with victims of human rights violations? Although the friendly settlement procedure has been on the books at the Inter-American Commission on Human Rights since 1992, states did not begin utilizing the procedure in earnest until nearly ten years later – why? I argue that state behavior – the choice to settle or litigate – at the Inter-American Commission is driven in part by two features of the institution’s design: (1) optional jurisdiction of the Inter-American Court and (2) a 2001 rule change that reduced the level of discretion over submission of cases to the court. Using an original dataset of petitions at the Inter-American Commission, I show that states engaged in more settlements in response to the increased cost of litigation, but that these changes are limited to states under the Inter-American Court’s jurisdiction. Moreover, as a positive, perhaps unintended, consequence, states’ levels of compliance with the Commission’s non-binding recommendations also increased after the rule change. My findings indicate that it is possible for institutions to achieve more desirable or efficient outcomes by changing the rules of the game.