1. Introduction

The incorporation of the notion of vulnerability in the legal sphere is the result of a complex transdisciplinary migration (Estupiñán-Silva, 2014, p. 197; Liedo, 2021, p. 244). This concept, whose origins trace back to the natural sciences in association with risk and disasters, subsequently moved through the social sciences and critical studies until its reception into law. In the current context of human rights, vulnerability transcends the idea of an inherent weakness to be configured as a universal ontological quality: the human potentiality for being harmed and the unavoidable social interdependence (Yáñez, 2024, p. 219).

From a theoretical perspective, fundamental contributions such as those of Judith Butler allow for a distinction between precariousness—understood as a shared existential condition—(Butler, 2020, p. 30) and precarity, defined as the unequal and politically induced distribution of said condition. This distinction makes visible how certain lives are exposed to greater risks due to neoliberal structures that inequitably distribute vital supports (Sales, 2021, p. 5). In the legal realm, and following the postulates of Martha Fineman, the recognition of this universal vulnerability challenges the liberal paradigm of the fully autonomous subject (Fineman, 2010, p. 255). This demands the construction of a responsive state that moves beyond the mere abstention from harm and assumes an active role in the generation of resilience (Fineman, 2010, p. 268).

Consequently, in international human rights law, vulnerability operates as an indispensable vector of analysis for the achievement of substantive equality (Basset, 2017, p. 20). Its teleological function is the specification of rights and guarantees for those subjects whose capacity for enjoyment is compromised by structural inequalities (Young, 2000, p. 98), thus overcoming the inadequacies of formal equality (Ronconi, 2019, p. 124). It is, fundamentally, a relational concept: a subject is not vulnerable due to an internal incapacity, but rather as a function of an external threat or the absence of institutional supports (Yáñez, 2024, p. 209). For, as Fineman posits, inequalities are not mere correctable imbalances through isolated mechanisms but manifestations of a structural reality in which all persons, to a greater or lesser extent, depend on institutional, community, and state networks to develop their autonomy and guarantee their well-being (Fineman, 2020, p. 54).

Consistent with the above, and with the aim of avoiding the stigmatization and pathologization of subjects, contemporary doctrine favors the category of groups in a situation of vulnerability over that of vulnerable groups. This terminological precision emphasizes that vulnerability is circumstantial, produced by contexts of exclusion, and not an essentialist characteristic of individuals’ identity (Medina and Sarabia, 2022, p. 284; Liedo, 2021, p. 248). Thus, legal analysis must necessarily consider its aggravated forms, such as intersectional discrimination (Aguilar, 2023, p. 214) and the accumulation of vulnerabilities or particular vulnerabilities (Lucero and Díaz, 2022, p. 230). These situations occur when multiple risk factors interact simultaneously, generating a damage of superior and synergistic intensity that demands reinforced and differentiated legal protection (Yáñez, 2024, p. 218).

Precisely in this sense, the notion has permeated the corpus iuris of international human rights law. In the conventional sphere, its reception is observed in instruments such as the Protocol of San Salvador (Article 13 on the right to health); the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (preamble and Articles 8, 9, and 10); the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (preamble); the Inter-American Convention on Protecting the Human Rights of Older Persons (Articles 5, 20, 23, and 24); and the Convention of Belém do Pará (Article 9). Likewise, the notion has been incorporated into soft law, most notably the Yogyakarta Principles and, with significant development, the Brasilia Rules on Access to Justice for Persons in Vulnerable Conditions.

Finally, in regional jurisprudence, both the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACtHR) have incorporated the concept, albeit with distinct nuances. While in the European system, the risk has been noted that the routine use of the concept may result in a stigmatizing label for certain groups without effective implications (La Barbera, 2019, p. 252; Rodríguez, 2024, p. 74), in Inter-American jurisprudence, the recourse to vulnerability has avoided essentialization, decisively contributing to the strengthening of the right to equality and non-discrimination. Under this premise, the present research paper aims to analyze how the Inter-American Court interacts with the notion of vulnerability specifically through the reparations ordered in its judgments.

2. The inter-american court and its incorporation of the notion of vulnerability

As doctrine has pointed out, the IACtHR has established itself as the jurisdiction of the vulnerable (Henao, 2022, p. 41), by virtue of its competence to hear cases of serious violations of the American Convention, previously processed before the Inter-American Commission.

In the context of international human rights law, and despite some initial perplexity regarding its legal nature, international courts increasingly invoke the notion of vulnerability. In this regard, the former judge of the Court, Roberto de Figueiredo Caldas, described the evolution of this concept by stating that: “It was timidly introduced into the jurisprudence of the nineties and has advanced in recent decades to become, at present, an integral element of the protection of rights within the American system of protection” (Caicedo, 2021, p. 79; editorial translation).

Vulnerability thus emerges as a transformative concept in Inter-American jurisprudence. Although in its early years the Tribunal was primarily devoted to confronting the horrors of Latin American dictatorships and to reparation through the right to truth, it has subsequently proceeded to address the profound structural inequality that permeates the continent. Along these lines, former judge Sergio García Ramírez maintains that vulnerability functions as a framework to prevent patterns of violence (Basset, 2017, p. 25), reflecting on the work of the Court as follows:

The effort to generate conditions for the reasonable exercise of the human rights of those holders manifests itself through multiple ongoing avenues. Among these are the so-called “laws of the weakest,” which must be accompanied, in a highly relevant applicative dimension, by what we might call “jurisprudence of the weakest,” that is, jurisdictional criteria—national and international— that generate conditions of access to rights in favor of the vulnerable. I have referred to this on several occasions. In the work of the Court, this jurisprudence holds a prominent place. It constitutes, strictly speaking, a characteristic feature of Inter-American human rights jurisprudence. (García, 2019, p. 7; editorial translation)

This transformative vocation is ratified by Professor Burgorgue-Larsen, who posits that there are two concepts situated at the center of the Court’s judicial policy: on the one hand, the right to non-discrimination in its positive dimension as the right to equality (Articles 1.1 and 24 of the Convention); and, on the other, the praetorian concept of vulnerability. Regarding the interaction between the two, she notes:

They serve not only to put an end to structural-type inequalities but also to impose reinforced positive obligations on States. Suddenly, it is no longer a matter of extending the scope of application of the Convention as such, but the scope of the obligations imposed on States. Both are closely related: it could be said that they are two sides of the same coin. (Burgorgue-Larsen, 2014, p. 129; editorial translation)

In this sense, the transformative capacity of the concept lies in its aptitude to generate specific duties to act for the States parties to the Convention (positive obligations). As the same author points out, “vulnerability somehow reinforces the operation of the right to non-discrimination, allowing for the imposition of a series of positive obligations on States” (Burgorgue-Larsen, 2014, p. 129). In the same vein, Professor Caicedo highlights that: “Vulnerability has served as a point of support for the development of a body of jurisprudence through which it is intended to reinforce the protection of those persons or groups who find themselves in situations where harm is inflicted upon them and they lack the physical and legal means to confront it” (Caicedo, 2021, p. 78; editorial translation).

Consequently, the Court has proceeded to weigh the degree of vulnerability of the victims in order to precisely profile the scope of both the violation of rights and the State’s duties of protection. Although the Tribunal has qualified certain human groups as vulnerable— such as indigenous peoples or pregnant women deprived of their liberty—a rigorous examination of its jurisprudence confirms that the Court always prioritizes a contextual analysis of vulnerability.

From this perspective, Inter-American jurisprudence has consolidated the criterion that the absence of tools to cope with harm is directly linked to the inability to exercise rights with due guarantees. Therefore, the legal response must be oriented toward the articulation of institutions and concrete actions that ensure the effective enjoyment of such rights. This reaffirms the transformative nature of the notion, as “The Court seems to have found in vulnerability a platform to deepen the protection of the rights of those groups or individuals who must face certain risks and who lack the means or instruments of defense to confront them” (Caicedo, 2021, p. 79; editorial translation).

The Court conceives vulnerability as a corrective tool for inequality, both factual and normative. The Tribunal reveals a critical facet of the function of law in the face of vulnerability: national legal systems may not only fail to design avenues for the exercise of the rights of discriminated groups, but the legal structures themselves can assume an active role as perpetuators of vulnerability by denying or making impossible the recognition and exercise of rights (Caicedo, 2021, p. 80).

From the foregoing, significant consequences arise regarding the special duties of protection or positive obligations of States to combat inequality in access to rights. Even the doctrine specialized in the right to conditions for a dignified existence or Existenzminimum has stated that:

The IACtHR has always maintained this development in close relationship—explicitly or implicitly— with the concept of vulnerable groups or with the concept of a situation of vulnerability. This argument allows us to maintain that the basis of the IACtHR’s jurisprudential development regarding the right to conditions for a dignified existence (referred to elsewhere as “minimum vital” or “Existenzminimum” or, in a more comprehensive and robust manner, “the right to an adequate standard of living”) is that of material equality. (Beloff & Clérico, 2016, p. 142; editorial Translation)

2.1. Evolution of the recourse to vulnerability in the jurisprudence of the Inter-American Court of Human Rights

While Professor Rosmerlin Estupiñan has systematized a typology regarding the use of the notion of vulnerability in the jurisprudence of the Inter-American Court based on the dichotomy between the personal condition and the specific situation of the victim (Estupiñan-Silva, 2014, p. 215)—a distinction that the Tribunal itself repeatedly articulates—an examination of its jurisprudential tarjectory between 1999 and 2022 allows for a different conclusion. For the Court, the determining element is not static categorization, but rather the factual context in which threats and the risk of violation of conventional rights are configured. That is, the analysis centers on the context of vulnerability that fostered the violation of the Convention and exacerbated the consequent harm.

Indeed, the Court does not limit itself to verifying a personal condition (such as disability or gender) but examines in each case the dynamic interaction of threats—such as state action or omission, discriminatory regulations, poverty, or patterns of structural discrimination. This contextual framework is the substratum upon which the notion of vulnerability evolves and operates. Thus, the categories of personal condition and specific situation have transitioned toward an analysis of the context of vulnerability, a tool through which the Tribunal determines the scope of protection obligations and the intensity of the harm suffered by the victim.

The genesis of the term in Inter-American jurisprudence dates back to 1997. In the case of Loayza Tamayo vs. Peru, the Court first incorporated the notion through reference to judgments of the European Court of Human Rights. That same year, in the case of Suárez Rosero vs. Ecuador, the Tribunal established that the incommunicado detention of persons deprived of their liberty places them in a position of vulnerability, a criterion reiterated in 1999 in the case of Castillo Petruzzi vs. Peru. In this incipient stage, the use of the concept is still referential, limited to jurisprudential citations of the ECHR or the qualification of specific situations of defenselessness.

The turning point occurred with the judgment in the case of the “Street Children” (Villagrán Morales et al.) vs. Guatemala in November 1999. It is here that the Court inaugurated a substantive analysis of the contexts of vulnerability, evaluating their causal impact on the harm and defining, based on this, the content of conventional obligations and reparation measures. This normative construction has been extended and deepened to the present day.

In the period between 1999 and 2009, the consolidation of the concept is observed, focused on contexts associated with childhood and indigenous peoples. Regarding the first group, judgments such as “Street Children”, Bulacio, and Juvenile Reeducation Institute highlight the impact of the deprivation of liberty and social inequality; for its part, in the case of the Yean and Bosico Girls, the impact of migratory status on the exercise of rights is addressed. As for indigenous peoples, cases such as Yakye Axa and Xakmok Kásek illustrate contexts of vulnerability derived from ancestral territorial dispossession and its effect on a dignified life. Toward the end of this period, the notion expanded toward disability (case of Ximenes Lopes) and gender, linked both to the deprivation of liberty (case of the Miguel Castro Castro Prison) and to sexual violence (case of González et al. (“Cotton Field”)).

Subsequently, between 2010 and 2022, the Court expanded the spectrum of analysis toward emerging issues. It examined the impact of the precariousness of healthcare systems on persons with HIV (cases of Gonzales Lluy and Cuscul Pivaral); the barriers to access to health and social security for older persons (cases of Poblete Vilches and Teachers of Chañaral); and discrimination and violence against the LGBTIQ+ population (cases of Atala Riffo and Vicky Hernández). Likewise, scrutiny was reinforced in cases of sexual violence against women within contexts of structural discrimination.

In synthesis, throughout more than two decades, the Court has consolidated a use of the notion of vulnerability that is inextricably linked to factual contexts that cause, facilitate, or multiply rights violations, severely sharpening the harm. In response, as will be addressed in the following section, the Tribunal reacts through an evolutionary interpretation of conventional rights and by ordering reparations with a transformative vocation, oriented toward correcting said contexts and preventing future violations. This methodology allows the Court to dispense with the static notion of vulnerable groups and avoid the determination of reinforced protection duties based exclusively on isolated personal conditions.

3. The IACHR’s response to vulnerability: comprehensive reparation

Doctrine has defined integral reparation (reparación integral) as the set of measures whose object is to restore or compensate the legally protected interest (bien jurídico) that has been harmed, seeking not only to reestablish the situation prior to the occurrence of the illicit act but also to improve it in light of respect for human rights. Under this conception, reparation cannot be restricted to mere restitution, nor is it exclusively reducible to the payment of financial indemnity (Bolaños and Quintero, 2022, p. 107).

This understanding has been adopted by the Inter-American Court of Human Rights, particularly when facing cases where it has been proven that the victims were immersed in a context of vulnerability. The Tribunal’s actions find their normative basis in Article 63.1 of the American Convention, which provides:

If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be guaranteed the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such rights be remedied and that fair compensation be paid to the injured party.

In those cases where the Court has detected the vulnerability of the victims, it understands that the outcome of the transformation of their situation is closely related to the task of creating conditions of material equality. In this sense, it ruled in the case of Poblete Vilches vs. Chile, stating that:

[...] the Court reiterates that the right to equality and non-discrimination encompasses two conceptions: a negative one related to the prohibition of arbitrary differences in treatment, and a positive one related to the obligation of States to create conditions of real equality for groups that have been historically excluded or that are at greater risk of being discriminated against (Inter-American Court of Human Rights, 2018, p. 41; editorial translation).

Thus, when analyzing the jurisprudence in which the Tribunal has ordered reparations in the face of situations of vulnerability, it is possible to identify measures oriented toward changes in state conduct, the prevention of new violations of conventional rights, and the generation of resilience in the victim, thereby enabling an effective enjoyment of rights following the judgment. Furthermore, there are specific contexts of vulnerability—such as those affecting indigenous peoples, women and girls who are victims of sexual violence, sexual diversities, and persons living with HIV—in which the Court has ordered reparations of a strong character and with a marked transformative vocation.

In this regard, concerning the content of integral reparation in situations of vulnerability and structural discrimination, the Inter-American Court has expressly established:

The Court recalls that the concept of “integral reparation” (restitutio in integrum) implies the re-establishment of the previous situation and the elimination of the effects produced by the violation, as well as an indemnity as compensation for the damages caused. However, bearing in mind the situation of structural discrimination in which the facts of the present case occurred and which was recognized by the State, the reparations must have a transformative vocation regarding said situation, such that they have not only a restitutive but also a corrective effect. In this sense, restitution to the same structural situation of violence and discrimination is not admissible. (Inter-American Court of Human Rights, 2009, p. 114; editorial translation)

Based on this conceptual framework, the following section will proceed to analyze several cases of Inter-American jurisprudence where integral reparation, through the measures ordered to the States, has played a central role in the face of situations of vulnerability.

3.1. Xákmok kásek v. paraguay case (2010)

The Xákmok Kásek community was dispossessed of its ancestral lands in the Paraguayan Chaco, seeing its subsistence and mobility restricted by the privatization of the territory. Despite claiming restitution since 1990, the State failed to guarantee its rights, allowing sales to third parties and declaring protected areas without prior consultation, thus violating its communal property and judicial guarantees. In this judgment, the Inter-American Court deepens the notion of integral reparation in the face of the vulnerability of indigenous peoples, determining that territorial restitution constitutes, per se, a fundamental resilience mechanism that transcends the mere proprietary dimension. In this regard, the Tribunal emphasizes the vital connection between the territory and the community’s subsistence:

The link between the members of the Community and said territories is fundamental and inextricable for their food and cultural survival; hence the importance of its return. Contrary to what the State points out, the lands to be delivered to the members of the Community are not just any real estate “within the historical territory of the Enxet Lengua,” but rather the territory that the members of the Community have demonstrated in this case to be their specific traditional territory and most suitable for indigenous settlement (Inter-American Court of Human Rights, 2010a, p. 72; editorial translation).

In addition to territorial restitution, various rehabilitation measures aimed at guaranteeing conditions for a dignified existence (existencia digna) are included, such as the supply of goods and the provision of basic services. The Court ordered the adoption of specific protection measures for groups in a situation of special vulnerability, including children, older persons, and pregnant women. In the educational field, it ordered providing the local school with the material and human resources necessary to ensure access to basic education, paying special attention to ensuring that teaching respects cultural traditions and guarantees the preservation of their own language.

Likewise, as a rehabilitation measure in the health sphere, the Tribunal ordered the establishment of a permanent health post in the community settlement, provided with the necessary medicines and supplies to provide adequate care, given the difficulty of access to other health centers. For the effective implementation of this measure, the State was imposed the obligation to guarantee the pertinent transport and communications.

Regarding the guarantees of non-repetition, the judgment establishes the State’s duty to ensure the registration and documentation of the community members, acting as a resilience mechanism for the protection of the right to juridical personality. Finally, as reparation for non-pecuniary damage (daño inmaterial), the Court ordered the creation of a community development fund for an amount of 700,000 United States dollars. This fund aimed to implement educational, housing, food security, and health projects, as well as the supply of drinking water and the construction of sanitary infrastructure, among other measures intended for the integral benefit of the community members.

3.2. Fernández ortega case v. mexico (2010)

This case addresses the sexual violence (violación sexual) suffered by a Me’phaa indigenous woman at the hands of Mexican military personnel in 2002 inside her home. The lack of a diligent investigation and the initial trial in military jurisdiction (fuero militar) generated impunity, violating her rights to personal integrity, judicial guarantees, and judicial protection within a context of institutional violence and discrimination. In this judgment, the Inter-American Court addressed integral reparation by considering the intersectionality of the vulnerability factors that converged in the victim: her status as a woman, an indigenous person, and a child at the time of the events.

Regarding the obligation to investigate and prosecute those responsible, the Tribunal found that the victim faced a series of structural obstacles in accessing justice. Consequently, it ordered that the State “has the duty to continue providing the means for her to access and participate in the proceedings of the case, for which it must ensure the provision of an interpreter and support from a gender perspective, in consideration of her circumstances of special vulnerability” (Inter-American Court of Human Rights, 2010b, p. 82; editorial translation).

In the area of guarantees of non-repetition, specifically regarding training programs for officials, the Court ruled that the training implemented by the State must incorporate the study of fundamental international instruments, such as the Istanbul Protocol and the World Health Organization Guidelines. Likewise, the ruling emphasized that such training must place special emphasis “on the care of alleged victims of sexual violence, especially when they belong to groups in a situation of greater vulnerability, such as indigenous women and children.”

Furthermore, regarding satisfaction measures and the victims’ life plan (proyección de vida), the Tribunal weighed the serious impact suffered by Ms. Rosendo Cantú—who was a child at the time of the events—and her daughter, as well as the significant change caused to their living conditions. Accordingly, it ordered the State to provide a scholarship for technical or university studies, seeking thereby to restore, as far as possible, their educational development opportunities.

Finally, concerning compensation for non-pecuniary damage (daño inmaterial), the Court expressly considered the victim’s status as a child at the time the harmful events occurred as a determining factor in setting the amount.

3.3. Cuscul pivaral v. guatemala (2018)

This judgment addresses the State’s responsibility for the lack of medical care for 49 persons living with HIV, which resulted in deaths and serious health deterioration within a context of vulnerability. Despite a writ of amparo demanding comprehensive treatment, the Constitutional Court of Guatemala dismissed it following an isolated presidential measure, leaving the victims’ rights to life, health, and judicial protection unprotected. Regarding rehabilitation measures, the Court ordered the provision of medical, psychological, or psychiatric treatment to the direct victims of violations of the right to health and personal integrity. This treatment is conceived in a comprehensive manner and must include: i) the free and lifelong supply of required medications, both antiretrovirals and those necessary to combat opportunistic infections; ii) the performance of diagnostic tests for the care of HIV and other derived pathologies; iii) a social support scheme encompassing food supply, emotional support, and psychosocial counseling; and iv) the provision of prevention technologies, such as condoms and sterile injection material.

To guarantee the accessibility of these measures, the Tribunal ordered that care be provided at the medical center closest to the victims’ residence, with the State assuming transport and food expenses. Likewise, the obligation was established to provide free, immediate, and comprehensive psychological or psychiatric treatment to the victims’ relatives through specialized institutions. In the area of satisfaction measures, the granting of university scholarships was ordered for both the direct victims and their sons and daughters.

Regarding guarantees of non-repetition, the judgment imposes structural positive duties on the State, among which the following stand out: 1) designing a mechanism that guarantees the accessibility, availability, and quality of antiretrovirals and health services for the population; 2) implementing training programs on international standards and national legislation for health system officials who care for persons living with HIV in Guatemala; 3) ensuring access to and follow-up on HIV testing for pregnant women; and 4) deploying a national awareness campaign aimed at officials and the general population regarding the rights and respect due to persons living with this condition (Inter-American Court of Human Rights, 2018a).

3.4. Barbosa de souza v. brasil (2021)

The case addressed the impunity in the femicide of Márcia Barbosa at the hands of a state deputy, whose investigation was blocked for years by the misuse of parliamentary immunity. This unjustified delay prevented access to justice, evidencing intersectional discrimination (based on gender, race, and class) and the State’s responsibility for violating judicial guarantees.

Regarding the guarantees of non-repetition, the Court based its measures on the recognition of the context of discrimination and structural violence in which women in Brazil are immersed, disproportionately affecting those of African descent and in situations of poverty. Under this premise, the Tribunal ordered the State to implement structural measures, including:

The creation of a national and centralized data collection system, disaggregated by key variables such as age, race, social class, victim and aggressor profile, place of occurrence, relationship between the parties, and means used. This mechanism aims to allow for a rigorous qualitative and quantitative analysis of acts of violence against women and, in particular, violent deaths.

The design and execution of a continuous education and training plan aimed at the police forces in charge of investigation and justice operators in the state of Paraíba. Such training must incorporate a gender and race perspective, ensuring that officials possess the necessary competencies to identify, investigate, and prosecute acts of violence against women based on gender.

The holding of a day of reflection and awareness by the Legislative Assembly of the state of Paraíba, named Márcia Barbosa de Souza. This activity must address the impact of femicide, violence against women, and the implications of the use of the figure of parliamentary immunity in these contexts.

The adoption and implementation of a national protocol establishing clear and uniform criteria for the investigation of femicides.

Finally, regarding the determination of pecuniary and non-pecuniary damage (daño material e inmaterial), the Court opted to set a single compensation amount encompassing both concepts. The legally relevant aspect of this decision lies in the fact that the Tribunal expressly recognized said sum as compensation linked to the victims’ condition of vulnerability, aimed at repairing the “negative effect of prolonged impunity on persons who find themselves in a situation of greater vulnerability” (Inter-American Court of Human Rights, 2021a, p. 51; editorial translation).

3.5. Vicky hernández v. honduras (2021)

The case concerns the extrajudicial execution of Vicky Hernández, a trans activist, which occurred during a curfew (toque de queda) following the 2009 coup d’état, implying the direct responsibility of State agents. The lack of investigation and the context of prejudice-motivated violence violated her rights to life, to the recognition of juridical personality, and to a life free from violence.

In this judgment, the Court ordered satisfaction measures oriented toward visibilization and remembrance, such as the production of an audiovisual documentary on the situation of discrimination and violence faced by trans women in Honduras, and the creation of an educational scholarship program named Vicky Hernández, aimed at facilitating the completion of secondary or technical studies for trans women.

Regarding guarantees of non-repetition, the ruling established obligations of an institutional and procedural nature to combat prejudice-motivated violence. These include:

1) the creation and implementation, within a two-year period, of a permanent training plan for State security forces on the rights of the LGBTI population;

2) the establishment of an administrative procedure for the recognition of gender identity;

3) the adoption of a specialized investigation and justice administration protocol for cases of violence against LGBTI persons; and

4) the implementation of a system for the collection of data and figures on acts of violence perpetrated against this collective.

As evidenced in the analysis of the preceding judgments, guarantees of non-repetition stand as the primary mechanism of integral reparation to address the vulnerability of victims. In this sense, the Tribunal has underscored the imperative need to adopt such measures in situations of vulnerability, going so far as to expressly establish that: “in those cases where there are violations regarding the pensions of vulnerable groups, it is necessary to order guarantees of non-repetition” (Inter-American Court of Human Rights, 2019, p. 72; editorial translation).

4. Conclusions

The reflections conducted throughout this work allow us to verify that the notion of vulnerability has ceased to be a marginal or merely descriptive category in International Human Rights Law to establish itself as a central and transformative hermeneutic tool in the jurisprudence of the Inter-American Court of Human Rights (IACtHR). To conclude, and with the aim of systematizing the findings of this research, I proceed to describe its main conclusions.

1. From the “weak subject” to the context of vulnerability

In the first place, this work evidences that the reception of vulnerability in the Inter-American legal sphere is the product of a conceptual maturation that overcomes paternalistic views. Although the concept has a transdisciplinary genesis—migrating from the natural sciences and the study of disasters toward the social sciences—its adoption by the IACtHR has implied a legal reception that has redefined its utility.

This redefinition has decisive theoretical and practical implications. Consequently, vulnerability is not a static label attached to the identity of individuals, but rather a circumstantial situation produced by contexts of exclusion.

The research allows us to conclude that the IACtHR has overcome the initial dichotomy—systematized by a segment of doctrine—between personal condition and specific situation. The analysis of its jurisprudence, from the “Street Children” case in 1999 to more recent judgments in 2021 and 2022, demonstrates that the determining element for the Tribunal is the context of vulnerability. It is this factual framework, where state threats, discriminatory regulations, and structural inequalities interact, that defines the intensity of the harm caused and the correlative state obligations. In this way, the Court has avoided the essentialization and stigmatization entailed by the category of “vulnerable groups,” favoring instead the analysis of risk factors that place subjects (in this case, victims) in a position of disadvantage.

2. Vulnerability as a vector of material equality and positive obligations

In the realm of state obligations, vulnerability operates as a necessary vector to promote conditions of substantive equality. Inter-American jurisprudence has built an inextricable relationship between the right to equality and vulnerability, understood as two sides of the same coin. This symbiosis has allowed the Tribunal to impose reinforced positive obligations on states. Mere abstention from harm is not enough; the verification of a context of vulnerability activates the State’s duty to become a responsive state—as posited by Fineman—capable of generating resilience and dismantling the structural inequalities that prevent the effective enjoyment of conventional rights.

This corrective function of vulnerability is necessary, as it recognizes that national legal systems are not neutral. Often, legal and administrative structures themselves perpetuate exclusion by denying the recognition of rights or impeding access to justice. Therefore, the special protection granted by the Court is but a necessary equalization measure to guarantee the content of Article 24 of the American Convention.

3. The reparative response: toward a transformative vocation

The IACtHR has utilized the reparations regime to provide an effective response to contexts of vulnerability. The study of its jurisprudence confirms that, when faced with violations occurring in scenarios of structural inequality, the traditional concept of integral reparation (restitutio in integrum) proves insufficient and even counterproductive. Reestablishing the situation prior to the illicit act would be inadmissible, as it would imply returning the victim to the same situation of precariousness and marginality that facilitated the violation of their conventional rights.

In response to this, the Court has developed a doctrine of reparations with a transformative vocation. These measures do not seek only to compensate for individual harm but also to correct structural conditions of inequality and generate a corrective effect for the future. Through the analysis of the cases Xákmok Kásek, Fernández Ortega, Cuscul Pivaral, Vicky Hernández, and Barbosa de Souza, it can be concluded that this transformative vocation materializes in three interconnected dimensions: the generation of resilience, attention to intersectionality, and the guarantee of non-repetition through structural changes at the normative and material levels within states.

The generation of resilience and integral rehabilitation: The Court understands that reparation must provide victims with the tools to reconstruct their life plans (proyectos de vida) with autonomy. In the case of indigenous peoples (Xákmok Kásek), territorial restitution is not ordered as a mere transfer of property, but as a fundamental mechanism for cultural resilience and food survival. Furthermore, it is complemented by community development funds and basic services that directly tackle poverty and exclusion. A similar logic applies in the Cuscul Pivaral case, where rehabilitation for persons with HIV transcends the supply of medication to encompass comprehensive social support (food, emotional support, etc.), recognizing that health is a complex social determinant.

The response to intersectionality and aggravated forms of vulnerability: The research accounts for how reparations are adjusted to address aggravated forms of vulnerability, such as intersectional discrimination (Hennig & Franco, 2025, p. 316). In the Fernández Ortega case, the Court made visible the triple discrimination (woman, indigenous, child) and ordered specific measures such as the provision of interpreters and educational scholarships. It is especially relevant that the Tribunal considered the status as a child as a determining element in increasing the amount of compensation for non-pecuniary damage. Likewise, in the Barbosa de Souza case, the Court innovated by expressly recognizing that the indemnity compensated for the negative effect of prolonged impunity on persons in a situation of greater vulnerability, directly linking the reparatory amount to State inaction regarding vulnerable persons.

Guarantees of non-repetition as an institutional remedy: Finally, it is concluded that guarantees of non-repetition constitute the tool favored by the Court to confront vulnerability. These measures act as a true institutional structure and normative adequacy intended to prevent future conventional violations by modifying cultural and normative patterns within the States parties.

The analysis of these cases allows for the identification of a typology of these guarantees focused on visibilization and training. In the Vicky Hernández and Barbosa de Souza cases, the Court ordered the creation of systems for collecting disaggregated data to bring the violence against trans people and Afro-descendant women out of statistical invisibility. The production of information thus emerges as a form of reparation that compels the state to recognize the existence and magnitude of structural violence.

Similarly, the training of officials ceases to be a generic measure and becomes a specific pedagogical intervention. The Court demands that such training incorporate perspectives of gender, race, and interculturality, and that it address concrete international standards (such as the Istanbul Protocol), in order to eradicate the prejudices that hinder access to justice. Furthermore, measures of symbolic and administrative recognition are ordered, such as gender identity procedures and awareness campaigns, which seek to challenge the cultural meaning of discrimination.

In short, the jurisprudence of the IACtHR demonstrates that confronting vulnerability requires much more than compassion or assistance; it requires a robust legal intervention that combines the redistribution of resources, the recognition of identities, the participation of those affected, and the transformation of power structures—especially through the normative adequacy of the States’ legal systems. This is precisely in line with the possibility of building real or substantive equality in the terms of Article 24 of the American Convention, as authors such as Fredman (2016, p. 728) have dogmatically proposed. The notion of vulnerability has allowed the Tribunal to build a jurisprudence that is not limited to verifying harm, but uses the power of the international judgment to demand that states build a resilient institutionality.

Integral reparation, under this perspective, becomes a mechanism of corrective and distributive justice. By ordering measures ranging from land restitution and access to medical treatment to the reform of investigation protocols and the production of statistical data or relevant normative adjustments, the IACtHR reaffirms that the only valid response to vulnerability is one that dismantles the causes that originated it. Thus, the Inter-American System offers a model for the protection of human rights where vulnerability is not a mere label but a condition that the law has an imperative mandate to transform.

5. References

Aguilar, A. (2023). El examen de la discriminación de género e interseccional en la jurisprudencia interamericana: Una propuesta de clasificación. Eunomia, 24, 127-157. https://e-revistas.uc3m.es/index.php/EUNOM/article/view/7662

Basset, Ú. (2017). La vulnerabilidad como perspectiva: Una visión latinoamericana del problema. Aportes del sistema interamericano de derechos humanos. En Ú. Basset (Ed.), Tratado de la vulnerabilidad (pp. 19-40). La Ley.

Beloff, M. & Clérico, L. (2016). Derecho a condiciones de existencia digna y situación de vulnerabilidad en la jurisprudencia de la Corte Interamericana. Estudios Constitucionales, 14(1), 139-178. http://dx.doi.org/10.4067/S0718-52002016000100005

Bolaños, T. & Quintero, D. (2022). Función transformadora y emancipatoria de la reparación integral: La búsqueda incesante de la justicia y la igualdad. Estudios Constitucionales, 20(2), 105-131. https://doi.org/10.4067/S0718-52002022000200105

Burgorgue-Larsen, L. (2014). El contexto, las técnicas y las consecuencias de la interpretación de la Convención Americana de los Derechos Humanos. Estudios Constitucionales, 12(1), 105-161. http://dx.doi.org/10.4067/S0718-52002014000100004

Butler, J. (2020). La fuerza de la no violencia. Editorial Planeta Chilena.

Caicedo, N. (2021). El alcance de la vulnerabilidad en la jurisprudencia de la Corte Interamericana de Derechos Humanos: Apertura de nuevas líneas de interpretación. En E. La Spina (Coord.), Cuadernos Deusto de Derechos Humanos No. 97 (pp. 77-97). Instituto de Derechos Humanos Pedro Arrupe. http://www.deusto-publicaciones.es/deusto/pdfs/cuadernosdcho/cuadernosdcho97.pdf

Estupiñan-Silva, R. (2014). La vulnerabilidad en la jurisprudencia de la Corte Interamericana de Derechos Humanos: Esbozo de una tipología. En Derechos humanos y políticas públicas: Manual (pp. 193-231). Universitat Pompeu Fabra. https://e-archivo.uc3m.es/handle/10016/19803

Fineman, M. (2010). The vulnerable subject and the responsive state. Emory Law Journal, 60, 251-275. https://scholarlycommons.law.emory.edu/elj/vol60/iss2/1/

Fineman, M. (2020). Beyond equality and discrimination. SMU Law Review Forum, 73(1), 51-62. https://scholar.smu.edu/cgi/viewcontent.cgi?article=1012&context=smulrforum

Fredman, S. (2016). Substantive equality revisited. International Journal of Constitutional Law, 14(3), 712-738. https://doi.org/10.1093/icon/mow043

García, S. (2019). Los sujetos vulnerables en la jurisprudencia transformadora de la Corte Interamericana de Derechos Humanos. Cuestiones Constitucionales, 41, 3-34. https://doi.org/10.22201/iij.24484881e.2019.41.13940

Henao, M. (2022). La presunción de inocencia en los medios de comunicación y RR.SS. [Memoria para optar al título de Licenciatura en Ciencias Jurídicas y Sociales, Universidad de Chile]. https://repositorio.uchile.cl/bitstream/handle/2250/187222/La-presuncion-de-inocencia-en-los-medios-de-comunicacion.pdf?sequence=1&isAllowed=y

Hennig, M. & Franco, F. (2025). Protección de grupos vulnerables, discriminación estructural e interseccionalidad desde la perspectiva de la Corte Interamericana de Derechos Humanos. En M. Hennig, H. Rank & F. Franco (Eds.), Activismo judicial: Cómo deciden los tribunales constitucionales en América Latina. La protección de los grupos vulnerables y la superación de la discriminación estructural (pp. 281-323). Fundación Konrad Adenauer.

La Barbera, M. (2019). La vulnerabilidad como categoría en construcción en la jurisprudencia del Tribunal Europeo de Derechos Humanos: Límites y potencialidad. Revista de Derecho Comunitario Europeo, 62, 235-257. https://doi.org/10.18042/cepc/rdce.62.07

Liedo, B. (2021). Vulnerabilidad. Eunomia. Revista en Cultura de la Legalidad, 20, 242-257. https://doi.org/10.20318/eunomia.2021.6074

Lucero, J. & Díaz, J. (2022). Desafíos en el derecho internacional para la protección de niños, niñas y adolescentes y sus familias víctimas de desplazamiento ambiental. Revista de Derecho Ambiental, 18(2), 223-252. https://doi.org/10.5354/0719-4633.2022.68289

Medina, R. & Sarabia, C. (2022). Debates sobre vulnerabilidades: Antesala de los grupos en situación de vulnerabilidad. En J. Breceda, C. Murillo, M. Suárez & E. Rojas (Coords.), Debates actuales sobre Derechos Humanos, vulnerabilidad e intervención social (pp. 272- 295). Cenur, Universidad de la República, Editorial Políticas Públicas.

Rodríguez, B. (2024). De la tutela antidiscriminatoria a la protección de situaciones de vulnerabilidad: Posibilidades y límites en el derecho de la Unión Europea. Labos: Revista de Derecho del Trabajo y Protección Social, 5(1), 68-96. https://doi.org/10.20318/labos.2024.8396

Ronconi, L. (2019). Repensando el principio de igualdad: Alcances de la igualdad real. Isonomía, 49, 103-140. https://doi.org/10.5347/49.2018.25

Sales, T. (2021). Vulnerabilidad, precarización e injusticias interseccionales: Notas para una filosofía política feminista. Isegoría, 64. https://doi.org/10.3989/isegoria.2021.64.02

Yáñez, M. (2024). El desarrollo de la noción de vulnerabilidad en el ámbito de los derechos humanos. IgualdadES, 11, 191-223. https://doi.org/10.18042/cepc/IgdES.11.07

Young, I. (2000). Inclusion and democracy. Oxford University Press.

Cited norms and instruments

Convención de Belém do Pará Organización de los Estados Americanos. (1994). Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer “Convención de Belém do Pará”. https://www.oas.org/juridico/spanish/tratados/a-61.html

Convención sobre personas mayores Organización de los Estados Americanos. (2015). Convención Interamericana sobre la protección de los derechos humanos de las personas mayores. https://www.oas.org/es/sla/ddi/tratados_multilaterales_interamericanos_A-70_derechos_humanos_personas_mayores.asp

Convención sobre trabajadores migratorios Organización de las Naciones Unidas. (1990). Convención internacional sobre la protección de los derechos de todos los trabajadores migratorios y de sus familiares. https://www.ohchr.org/es/instruments-mechanisms/instruments/international-convention-protection-rights-all-migrant-workers

Corte Interamericana de Derechos Humanos. (1997a). Caso Loayza Tamayo Vs. Perú. Fondo (Serie C No. 33). https://www.corteidh.or.cr/docs/casos/articulos/seriec_33_esp.pdf

Corte Interamericana de Derechos Humanos. (1997b). Caso Suárez Rosero Vs. Ecuador. Fondo (Serie C No. 35). https://www.corteidh.or.cr/docs/casos/articulos/seriec_35_esp.pdf

Corte Interamericana de Derechos Humanos. (1999a). Caso Castillo Petruzzi y otros Vs. Perú. Fondo, reparaciones y costas (Serie C No. 52). https://www.corteidh.or.cr/docs/casos/articulos/seriec_52_esp.pdf

Corte Interamericana de Derechos Humanos. (1999b). Caso de los “Niños de la Calle” (Villagrán Morales y otros) Vs. Guatemala. Fondo (Serie C No. 63). https://www.corteidh.or.cr/docs/casos/articulos/seriec_63_esp.pdf

Corte Interamericana de Derechos Humanos. (2003). Caso Bulacio Vs. Argentina. Fondo, reparaciones y costas (Serie C No. 100). https://www.corteidh.or.cr/docs/casos/articulos/seriec_100_esp.pdf

Corte Interamericana de Derechos Humanos. (2004). Caso “Instituto de Reeducación del Menor” Vs. Paraguay. Excepciones preliminares, fondo, reparaciones y costas (Serie C No. 112). https://www.corteidh.or.cr/docs/casos/articulos/seriec_112_esp.pdf

Corte Interamericana de Derechos Humanos. (2005a). Caso Comunidad Indígena Yakye Axa Vs. Paraguay. Fondo, reparaciones y costas (Serie C No. 125). https://www.corteidh.or.cr/docs/casos/articulos/seriec_125_esp.pdf

Corte Interamericana de Derechos Humanos. (2005b). Caso de las Niñas Yean y Bosico Vs. República Dominicana. Excepciones preliminares, fondo, reparaciones y costas (Serie C No. 130). https://www.corteidh.or.cr/docs/casos/articulos/seriec_130_esp.pdf

Corte Interamericana de Derechos Humanos. (2006a). Caso Ximenes Lopes Vs. Brasil. Fondo, reparaciones y costas (Serie C No. 149). https://www.corteidh.or.cr/docs/casos/articulos/seriec_149_esp.pdf

Corte Interamericana de Derechos Humanos. (2006b). Caso del Penal Miguel Castro Castro Vs. Perú. Fondo, reparaciones y costas (Serie C No. 160). https://www.corteidh.or.cr/docs/casos/articulos/seriec_160_esp.pdf

Corte Interamericana de Derechos Humanos. (2009). Caso González y otras (“Campo Algodonero”) Vs. México. Excepción preliminar, fondo, reparaciones y costas (Serie C No. 205). https://www.corteidh.or.cr/docs/casos/articulos/seriec_205_esp.pdf

Corte Interamericana de Derechos Humanos. (2010a). Caso Comunidad Indígena Xákmok Kásek Vs. Paraguay. Fondo, reparaciones y costas (Serie C No. 214). https://www.corteidh.or.cr/docs/casos/articulos/seriec_214_esp.pdf

Corte Interamericana de Derechos Humanos. (2010b). Caso Fernández Ortega y otros Vs. México. Excepción preliminar, fondo, reparaciones y costas (Serie C No. 215). https://www.corteidh.or.cr/docs/casos/articulos/seriec_215_esp.pdf

Corte Interamericana de Derechos Humanos. (2012). Caso Atala Riffo y niñas Vs. Chile. Fondo, reparaciones y costas (Serie C No. 239). https://www.corteidh.or.cr/docs/casos/articulos/seriec_239_esp.pdf

Corte Interamericana de Derechos Humanos. (2015). Caso Gonzales Lluy y otros Vs. Ecuador. Excepciones preliminares, fondo, reparaciones y costas (Serie C No. 298). https://www.corteidh.or.cr/docs/casos/articulos/seriec_298_esp.pdf

Corte Interamericana de Derechos Humanos. (2018a). Caso Cuscul Pivaral y otros Vs. Guatemala. Excepción preliminar, fondo, reparaciones y costas (Serie C No. 359). https://www.corteidh.or.cr/docs/casos/articulos/seriec_359_esp.pdf

Corte Interamericana de Derechos Humanos. (2018b). Caso Poblete Vilches y otros Vs. Chile. Fondo, reparaciones y costas (Serie C No. 349). https://www.corteidh.or.cr/docs/casos/articulos/seriec_349_esp.pdf

Corte Interamericana de Derechos Humanos. (2019). Caso Asociación Nacional de Cesantes y Jubilados de la Superintendencia Nacional de Administración Tributaria (ANCEJUB-SUNAT) Vs. Perú. Excepciones preliminares, fondo, reparaciones y costas (Serie C No. 394). https://www.corteidh.or.cr/docs/casos/articulos/seriec_394_esp.pdf

Corte Interamericana de Derechos Humanos. (2021a). Caso Barbosa de Souza y otros Vs. Brasil. Excepciones preliminares, fondo, reparaciones y costas (Serie C No. 435). https://www.corteidh.or.cr/docs/casos/articulos/seriec_435_esp.pdf

Corte Interamericana de Derechos Humanos. (2021b). Caso Vicky Hernández y otras Vs. Honduras. Fondo, reparaciones y costas (Serie C No. 422). https://www.corteidh.or.cr/docs/casos/articulos/seriec_422_esp.pdf

Corte Interamericana de Derechos Humanos. (2021c). Caso Profesores de Chañaral y otras municipalidades Vs. Chile. Excepción preliminar, fondo, reparaciones y costas (Serie C No. 443). https://www.corteidh.or.cr/docs/casos/articulos/seriec_443_esp.pdf

Principios de Yogyakarta Comisión Internacional de Juristas. (2007). Principios de Yogyakarta: Principios sobre la aplicación de la legislación internacional de derechos humanos en relación con la orientación sexual y la identidad de género. https://yogyakartaprinciples.org/wp-content/uploads/2016/08/principles_sp.pdf

Protocolo de San Salvador Organización de los Estados Americanos. (1988). Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales “Protocolo de San Salvador”. https://www.oas.org/es/cidh/mandato/Basicos/sansalvador.asp

Reglas de Brasilia XIV Cumbre Judicial Iberoamericana. (2008). Reglas de Brasilia sobre acceso a la justicia de las personas en condición de vulnerabilidad. https://www.acnur.org/fileadmin/Documentos/BDL/2009/7037.pdf

Funding: This article has not received any funding associated with the public, commercial, or for-profit sectors.

Acknowledgments: To Dr. Liliana Galdámez Zelada for her constant support and guidance in the studies of Constitutional Law and International Human Rights Law.

Conflict of interest: The author declares no conflict of interest in the preparation of this article.

Contribution declaration based on CRediT taxonomy: The author declares their contributions to the present research article, using the CRediT taxonomy: Conceptualization: (100%); Formal analysis: (100%); Investigation: (100%); Writing - original draft: (100%); Writing - review and editing: (100%).

Use of AI: The author declares that artificial intelligence tools were not used in any phase of the manuscript preparation.