Electoral Rights in Nicaragua: The Unbearable Lightness of Non-implementation?

The chapter revolves around the analysis of the landmark judgment issued on 23 June 2005 by the Inter-American Court of Human Rights on the case YATAMA v. Nicaragua, whereby the Court declared several violations of the American Convention on Human Rights on the account of the application of a flawed electoral law resulted in the exclusion of a major indigenous political party from the November 2000 municipal elections. The judgment is especially relevant with regard to the right to political participation of indigenous peoples and it contributes in delineating the Inter-American jurisprudence on electoral rights. The Court provides an original reading of the notions of democracy and electoral rights, through the lenses of a differential approach, meant to reflect the traditional values and customs of indigenous peoples and their right to self-determination. In the judgment these issues are examined in-depth and the specificities of the electoral rights of indigenous peoples are reflected in the measures of reparation ordered. In this vein, the compensation for non-pecuniary damage (i.e. 80,000 US$) takes into account the “communitarian democracy” which characterises indigenous peoples in the Autonomous Regions of the Atlantic Coast of Nicaragua and is designed to encompass also the collective dimension of the damage. Moreover, the Court ordered the respondent State, among others, to amend the Electoral Law and to adopt the necessary legislative measures to establish an effective judicial remedy to challenge the decisions of the Supreme Electoral Council. More than 15 years after the adoption of the judgment, the measures ordered have not been effectively implemented and it is therefore especially pertinent to explore whether the judgment – or rather the failure to enforce it – have generated any significant legal and economic impacts. The question appears especially timely, bearing in mind the serious crisis, characterised by gross human rights violations vis-à-vis a mounting wave of social protests, that Nicaragua is undergoing since April 2018. Nicaragua’s failure to implement the judgment on the YATAMA case has seemingly not triggered any egregious consequences within the Inter-American human rights system. This lack of reaction vis-à-vis the disrespect of the Court’s orders is troublesome, as it may suggest that the failure to enforce judgments rendered by an international court does not entail any serious consequence and an uncompliant State is easily left off the hook. Yet, Nicaragua appears among the countries with the lower score in terms of respect and guarantees of electoral rights and democracy in the Americas. Moreover, it could be argued that it is precisely because of the failure to enforce the measures ordered by the Court (and, to a certain extent, by other international human rights bodies) that Nicaragua pays an especially high price at the domestic level in legal and economic terms. The current crisis – and its tragic consequences – are certainly not foreign to the failure to implement the judgments of the Inter-American Court. It is here argued that there can be no sustainable democracy without the enforcement of the relevant international judgments. After all, there is not much lightness to non-implementation.