From Compliance to Engagement: Assessing the Impact of the Inter-American Court of Human Rights on Constitutional Law in Latin America (original) (raw)
Related papers
2015
This dissertation addresses the question: under what conditions do regional and national high courts matter in the promotion and domestic incorporation of international human rights law? In order to address this question, I argue that domestic high courts can proactively adopt international human rights laws through their interpretation of the law and resulting case decisions. Regional courts promote international law, particularly through their requirement of domestic legal reforms in their judgments. I examine the extent of state compliance with these requirements, where compliance consists of these changes in the domestic legal system thereby institutionalizing international laws and transforming them into enforceable law. These arguments are evaluated through original data consisting of the universe of compliance records of Latin America to the Inter-American Court of Human Rights from 2001-2015 and Latin American high court cases. I find that domestic high courts successfully and unilaterally institutionalize international human rights laws and a much higher compliance rate with even such stringent regional court requirements as domestic legal reform. The influence of regional and national high courts is much higher then traditional scholarship credits. vi
How does Transnational Legal Process (TLP), based on international human rights law, affect domestic constitutional law? This chapter aims to address this question by analysing how domestic constitutional regimes in Latin America interact with the Inter-American System. It argues that structural transformations in international Law together with broader legal interaction have allowed new players to behave as constitutional actors articulating political claims in the language of fundamental rights by means of the Inter-American System. This process inaugurates possibilities of reshaping constitutional law, allowing civil-society actors to bypass institutional obstacles to human rights enforcement in the domestic arena. The parallel development of the Inter-American System as an independent regime with a plurality of domestic answers to its normative growth leads to a unique path of development, adding an interesting set of models of transversal human rights governance to the broader field of ‘global governance’.
This chapter analyses the impact of the Inter-American Human Rights System on litigating human rights organisations, and in turn, the ability of HROs to advance the realisation of rights and achieve redress for rights violations through international litigation. The chapter is divided into three main parts. The first part draws on theoretical insights from the literature on social movements and legal mobilisation to develop an analytical framework for understanding both how the IAHRS fosters transnational legal mobilisation, in the form of HRO litigation, and how such mobilisation may affect domestic human rights change. This discussion generates expectations for the subsequent empirical analysis outlined in the following two parts of the chapter, which examine patterns of human rights litigation before the IAHRS, the System’s responses, and the impact that such mobilisation may have on domestic human rights. The second main part of the chapter offers a quantitative analysis of the IACHR’s petition data, while the third part provides an in-depth qualitative assessment of key litigating human rights organisations in Peru, Colombia, and Brazil. In the conclusion we draw out the broader lessons concerning the role of HROs in the mobilisation and impact of the IAHRS, while reminding ourselves of the many limitations of such mobilisation.
Transnational Legal Theory, 2019
Contemporary processes of regionalisation of fundamental human rights protection beg the question: are we looking up? Or are we looking out? This paper argues, via the case study of the revolutionary jurisprudence of the Inter-American Court of Human Rights, that we are looking beyond the traditional elements of constitutional analysis, which are inseparable from the idea of sovereign State. The development of a sort of ‘constitutional spirit’ of the Inter-American Court is fundamentally due to the extremely difficult socio-political Latin-American context. This article aims to analyse two main examples of the ‘constitutional spirit’ of the Court of San José: its decisions regarding member states’ amnesty laws, through which the Court enters into the delicate debate on democratic transition in Latin America and transitional justice, and its control of conventionality, which highlights the ‘either-way’ process of constitutional law internationalisation and international law constitutionalisation.
Rejecting the Inter-American Court: Judicialization, National Courts, and Regional Human Rights
2011
This book chapter generates theories about when high courts comply with Inter-American Court rulings. In over one-half of the rulings it has issued since it began its work in 1979, the IACtHR issues orders that require action by national courts. Further, it has increasingly taken on a role of reviewing whether national practices of judicial independence and due process comply with the American Convention on Human Rights. The chapter seeks to discern the factors that influence how national high courts respond to this incursion into their turf, and whether they act as a partner in regional legal integration by complying with the IACtHR's decisions. It examines recent instances in which the high courts of Argentina, Chile, and Venezuela reject a ruling of the Inter-American Court.
Resisting the Inter-American Human Rights System (2019)
Yale Journal of International Law, 2019
International human rights law today is being questioned on the basis of the regime’s scope of authority and enforceability. Since 1988, the Inter-American Court of Human Rights has seen its case law and its influence expand. The Court’s opinions, along with the reports of the Inter-American Commission on Human Rights, have become widely seen by domestic courts as authoritative, thereby realizing many of the promises of international norms and holding Latin American States accountable for their unwillingness or inability to fulfill their international obligations. Along with the significant institutionalization of human rights law in other regions, as well as at the global level, human rights law in the Americas has become part of the legal and political landscape of States and the individual, creating a kind of inter-American constitutionalism. Despite this trend, the system of human rights protection has recently come under fire, as have other regional human rights regimes and international courts. States in general, and their courts in particular, have become less receptive and at times even opposed to what they perceive as an overly aggressive approach to adjudication. Drawing on interviews with current constitutional judges from three Latin American countries, this Article identifies and analyzes three core facets of resistance and backlash in the inter-American human rights system. It then offers two avenues for reform to strengthen the system: first, the reformulation of legal doctrines used by the international human rights courts to mediate their relations with member States; and second, the adoption of new mechanisms to monitor compliance with decisions by international courts.
Social Science Research Network, 2012
/Basic4.Amer.Conv.Ratif.htm (last visited Dec. 15, 2011). 7 Id. 8 Id. 9 AMERICAN CONVENTION ON HUMAN RIGHTS chs. VII, VIII. 10 Id. at ch. VII. 11 See generally STATUTE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS. 12 Id. at art. 1. 13 AMERICAN CONVENTION ON HUMAN RIGHTS art. 46. 14 Id. 15 Compare the thousands of complaints brought to the Commission between 1972 and 2010 with the 235 cases brought before the Court. See Annual Reports, Inter-American Commission on Human Rights, available at http://www.cidh.oas.org/annual.eng.htm (last visited Dec. 15, 2011); Jurisprudence: Decisions and judgments, Inter-American Court of Human Rights, available at http://www.corteidh.or.cr/casos.cfm (last visited Dec. 16, 2011). 16 AMERICAN CONVENTION ON HUMAN RIGHTS ch. VIII sect. 2. 17 Id. at ch. VIII. 18 Id. 19 Id.; STATUTE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS; STATUTE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS. 20 Nearly all cases before the Court involve the hearing of witnesses.
Human Rights Quarterly, 2012
In their rulings, international human rights tribunals frequently ask states to engage in costly compliance measures, ranging from paying reparations to victims to changing domestic human rights laws and practices. The tribunals, however, have little enforcement or oversight capacity. The responsibility for compliance falls to domestic actors: executives, legislators and judiciaries. Through nuanced case studies of the compliance process in Argentina, Brazil and Colombia, this article suggests that compliance with the Inter-American human rights tribunals' rulings depends on executives' political will for compliance and their ability to build procompliance coalitions with judges and legislators.
2011
This article discusses two main arguments. The first is that the Inter-American System of Human Rights (ISHR) provides the institutional basis for the construction of a transnational public sphere that can contribute to democracy in Brazil. Issues that are not recognized on the national political agenda can thrive in these transnational spaces. However, for the ISHR to function as a transnational public sphere, it needs to have credibility and its orders must be respected by the states. The second argument of this paper is that one of the challenges to the credibility of the ISHR is the reluctance of the national legal community to implement international human rights law in practice. We refer here to both the implementation of international decisions against Brazil and to so-called “conventionality control.” We have a legal duty to conform our conduct to international human rights standards, which have thus far been neglected.