Inter-State Cases in Disguise under Inter-American Human Rights Law (original) (raw)
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The paper examines decisions from the Inter-American Court of Human Rights regarding the validity of state parties’ amnesty laws under the American Convention. The objective is to understand the reasons used by the Court to ground the claim that domestic amnesty laws lack legal effect. This analytical effort is necessary to face the question of whether regional fragmentation can be considered as new Grossräume. The paper aims to shed light on political choices, not neutral statements, that are implied in the Court's reasoning, that is, the universalist pull of human rights and their superior status when contrasted with domestic laws. Even if there is no possibility of a direct analogy between the Schmittian concept and the Inter-American System, the latter intends to exert hegemonic influence over the region, and this trend has to be analysed considering how political choices have been justified by the Inter-American Court.
Contestation and deference in the Inter-American human rights system
2016
This article discusses the Inter-American human rights system's adjudication model in light of some of the conjectures on subsidiarity as a principle for international governance -- that is, the degree of deference it grants to the assessment of a situation by the member state concerned. I inquire about the system's role as arbitrator of human rights cases within its jurisdiction, examining the dynamics of subsidiarity within the system's changing context. I find that the Inter-American Court of Human Rights tends to employ a maximalist model of adjudication. Such a model leaves little room for states to reach their own decisions and can be explained as largely resting upon the political context where the Court came to exist, almost four decades ago. I argue that there is a challenge ahead for the Court, namely, to reconcile both claims: on the one hand, states' demands for higher deference, and on the other hand, the importance of an independent and legitimate regio...
Contestation and Deference in the Inter-American Human Rights System (2016)
Law & Contemporary Problems, 2016
This Article discusses the inter-American human rights system’s adjudication model in light of some of the conjectures on subsidiarity as a principle for international governance — that is, the degree of deference it grants to the assessment of a situation by the member state concerned. I inquire about the system’s role as arbitrator of human rights cases within its jurisdiction, examining the dynamics of subsidiarity within the system’s changing context. I find that the Inter-American Court of Human Rights tends to employ a maximalist model of adjudication. Such a model leaves little room for states to reach their own decisions and can be explained as largely resting upon the political context where the Court came to exist, almost four decades ago. I argue that there is a challenge ahead for the Court, namely, to reconcile both claims: on the one hand, states’ demands for higher deference, and on the other hand, the importance of an independent and legitimate regional human rights tribunal. Download: http://papers.ssrn.com/sol3/papers.cfm?abstract\_id=2799476
Beijing Law Review
The Inter-American human rights system is one of the major regional human rights systems globally. In spite of the availability of human rights instruments in the region, some of which are legally binding, the spate of human rights abuse still leaves a sad commentary. The objective of this paper therefore is to take a critical survey of the human rights instruments in the region with a view to assessing their strengths and constraints. The method of research is basically doctrinal and utilizes the major human rights instruments in the region such as the Charter of the Organization of American States (OAS), the American Declaration of the Rights and Duties of man, and the American Convention on Human Rights in its evaluation. It is the finding of the paper that the Inter-American system indeed has a number of positive features such as the emphasis placed on democratic governance and third party interventions in the adjudicatory process among others. The paper has also identified a number of weaknesses in the system including that the Inter-American Commission lacks the power to refer a case to the Inter-American Court where the State concerned has not ratified the American Convention on Human Rights; and further, the Commission's recommendations are not legally binding. Therefore, the paper recommended among other things that the Commission be able to transmit a case directly to the Court whether or not the party concerned has ratified the American Convention.
International Law and the Protection of Human Rights in the Inter-American System
Houston Journal of International Law, 1997
Inter-American Commission on Human Rights of the Organization of American States. Affiliation for identification purposes only. The opinions expressed are those of the author alone and are not to be attributed to the Organization of American States or any of its organs. 1. U.N. CHARTER art. 2, para. 1. 2. See id. arts. 3-4. 3. See ARTHUR LARSON ET AL., SOVEREIGNTY WITHIN THE LAW 125 (1965). 4. See WERNER LEVI, CONTEMPORARY INTERNATIONAL LAW: A CONCISE INTRODUCTION 73 (2d ed. 1991).
Regional systems of human rights are part of a complex rotective system that also includes national and global instruments. One of the important advantages of regional systems in comparison with global protection instruments of human rights lies in the lower difficulty of those systems in establishing consensus on these rights. Undeniably, the Inter-American and European systems are the most structured and developed and are specific object of analysis in this paper. After a reflection on the construction of important to register that this article uses, besides specialized literature, a strong comparative approach between American and European Human Rights Systems and, especially, techniques of empirical legal studies with a large number (Large-N) of data. The hypothesis to be tested in this text is that American and European Systems has many peculiarities because of the cultural, legal, and historical circumstances, but a comparative study of those systems is important to understand some common problems and to analyze different ways to deal with the protection of human rights. As will be showed in this paper, the hypothesis is true because, for example, the number of processes is very diverse, but both systems have strong problems in correctly enforcing their decisions.
International Journal of Constitutional Law, 2020
Why do courts rely on specific bodies of jurisprudence to justify decisions? We analyze judicial dialogue in the Inter-American System, where the Inter-American Court of Human Rights (IACtHR) has defined its mission as the construction of a regional legal order. This order needs courts at all levels to engage with each other. Original databases of citations by the IACtHR to the judgments of national courts and in the opposite direction, allow us to establish whether such practices are emerging. Furthermore, the paper asks why the IACtHR cites some courts but not others, and to what end. Statistical models reveal that the IACtHR is more likely to cite case law from countries that exhibit characteristics that are more conducive to the creation of a regional human rights legal order, and jurisprudence from countries with which it has had more extensive experience and interaction. Qualitative content analysis suggests that the IACtHR uses citations as a source of persuasive authority, but also to showcase domestic acceptance of its doctrines and decisions. This leads us to characterize citations as an effort to educate courts in the use of Inter-American jurisprudence and thus foster greater integration. At the national level, we find considerable temporal/cross-country variation in openness to the dialogue. We rely on original quantitative indicators and case studies to show this is as a function of the IACtHR's growing visibility and networking efforts, as well as country-level changes in legal cultures and judicial personnel that push courts away from formalism.