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The innovative potential of provisional measures resolutions for detainee rights in Latin America through dialogue between the Inter-American Court and other courts

Clara Burbano Herrera (UGent) and Yves Haeck (UGent)
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Abstract
The dire situation in prisons in which detainees who are protected by provisional measures find themselves in Latin America is a practice incompatible with international human rights treaties, such as the American Convention on Human Rights (ACHR) and human rights standards developed by the Inter-American Court, which establish that detainees must be held in dignified detention conditions. The Inter-American Court uses the legal instrument of provisional measures adopted in the context of the case of the Instituto Penal Plácido de Sá Carvalho v. Brazil (2018) to start a dialogue with the case law of certain national courts of the Organization of American States (OAS States) and another international court, with the objective of analysing the structural problems in detention centres all over Latin America and providing some answers. While the Inter-American Court is aware of the limits of its jurisdiction, it apparently wishes its provisional measures to have an effective or material impact on the improvement of detention conditions. For the first time the Court adjudicates that for a state with grave problems in its detention centres, there is no need to build new detention facilities or to transfer detainees to other existing centres, because these measures do not solve the problem at hand. The time during which detainees are being held in undignified conditions must be taken into account and lead to a reduction of their time spent in prison.
Keywords
Colombian Constitutional Court, Detainees, Detention, Dialogue, Inter-American Court of Human Rights, Inter-American Human Rights System, Overcrowding, Provisional Measures, Precautionary Measures, Urgent Measures

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MLA
Burbano Herrera, Clara, and Yves Haeck. “The Innovative Potential of Provisional Measures Resolutions for Detainee Rights in Latin America through Dialogue between the Inter-American Court and Other Courts.” Urgency and Human Rights : The Protective Potential and Legitimacy of Interim Measures, edited by Eva Rieter and Karin Zwaan, T.M.C. Asser Press, 2021, pp. 223–44, doi:10.1007/978-94-6265-415-0_10.
APA
Burbano Herrera, C., & Haeck, Y. (2021). The innovative potential of provisional measures resolutions for detainee rights in Latin America through dialogue between the Inter-American Court and other courts. In E. Rieter & K. Zwaan (Eds.), Urgency and human rights : the protective potential and legitimacy of interim measures (pp. 223–244). The Hague: T.M.C. Asser Press. https://doi.org/10.1007/978-94-6265-415-0_10
Chicago author-date
Burbano Herrera, Clara, and Yves Haeck. 2021. “The Innovative Potential of Provisional Measures Resolutions for Detainee Rights in Latin America through Dialogue between the Inter-American Court and Other Courts.” In Urgency and Human Rights : The Protective Potential and Legitimacy of Interim Measures, edited by Eva Rieter and Karin Zwaan, 223–44. The Hague: T.M.C. Asser Press. https://doi.org/10.1007/978-94-6265-415-0_10.
Chicago author-date (all authors)
Burbano Herrera, Clara, and Yves Haeck. 2021. “The Innovative Potential of Provisional Measures Resolutions for Detainee Rights in Latin America through Dialogue between the Inter-American Court and Other Courts.” In Urgency and Human Rights : The Protective Potential and Legitimacy of Interim Measures, ed by. Eva Rieter and Karin Zwaan, 223–244. The Hague: T.M.C. Asser Press. doi:10.1007/978-94-6265-415-0_10.
Vancouver
1.
Burbano Herrera C, Haeck Y. The innovative potential of provisional measures resolutions for detainee rights in Latin America through dialogue between the Inter-American Court and other courts. In: Rieter E, Zwaan K, editors. Urgency and human rights : the protective potential and legitimacy of interim measures. The Hague: T.M.C. Asser Press; 2021. p. 223–44.
IEEE
[1]
C. Burbano Herrera and Y. Haeck, “The innovative potential of provisional measures resolutions for detainee rights in Latin America through dialogue between the Inter-American Court and other courts,” in Urgency and human rights : the protective potential and legitimacy of interim measures, E. Rieter and K. Zwaan, Eds. The Hague: T.M.C. Asser Press, 2021, pp. 223–244.
@incollection{8657295,
  abstract     = {{The dire situation in prisons in which detainees who are protected by provisional measures find themselves in Latin America is a practice incompatible with international human rights treaties, such as the American Convention on Human Rights (ACHR) and human rights standards developed by the Inter-American Court, which establish that detainees must be held in dignified detention conditions. The Inter-American Court uses the legal instrument of provisional measures adopted in the context of the case of the Instituto Penal Plácido de Sá Carvalho v. Brazil (2018) to start a dialogue with the case law of certain national courts of the Organization of American States (OAS States) and another international court, with the objective of analysing the structural problems in detention centres all over Latin America and providing some answers. While the Inter-American Court is aware of the limits of its jurisdiction, it apparently wishes its provisional measures to have an effective or material impact on the improvement of detention conditions. For the first time the Court adjudicates that for a state with grave problems in its detention centres, there is no need to build new detention facilities or to transfer detainees to other existing centres, because these measures do not solve the problem at hand. The time during which detainees are being held in undignified conditions must be taken into account and lead to a reduction of their time spent in prison.}},
  author       = {{Burbano Herrera, Clara and Haeck, Yves}},
  booktitle    = {{Urgency and human rights : the protective potential and legitimacy of interim measures}},
  editor       = {{Rieter, Eva and Zwaan, Karin}},
  isbn         = {{9789462654143}},
  keywords     = {{Colombian Constitutional Court,Detainees,Detention,Dialogue,Inter-American Court of Human Rights,Inter-American Human Rights System,Overcrowding,Provisional Measures,Precautionary Measures,Urgent Measures}},
  language     = {{eng}},
  pages        = {{223--244}},
  publisher    = {{T.M.C. Asser Press}},
  title        = {{The innovative potential of provisional measures resolutions for detainee rights in Latin America through dialogue between the Inter-American Court and other courts}},
  url          = {{http://dx.doi.org/10.1007/978-94-6265-415-0_10}},
  year         = {{2021}},
}

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