Resisting the Inter-American Human Rights System

Yale Journal of International Law, Forthcoming

67 Pages Posted:   

Jorge Contesse

Rutgers Law School

Date Written: September 13, 2018

Abstract

Questions of scope of authority and enforcement are ripe at what is an increasingly critical time for international human rights law. 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 a too 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 relation with member states; and second, the adoption of new mechanisms to monitor compliance with decisions by international courts.

Keywords: human rights, Inter-American Court of Human Rights, Latin America, backlash,

Referência
CONTESSE, Jorge. Resisting the Inter-American Human Rights System (September 13, 2018). Yale Journal of International Law, Forthcoming. Disponível em: <https://ssrn.com/abstract=3248979>. Acesso em 18 set. 2018.

Contestation and Deference in the Inter-American Human Rights System

Jorge Contesse

Rutgers Law School

April 1, 2016

Law & Contemporary Problems, Vol. 79(2), 2016 

Abstract:

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.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2799476>. Acesso em: 07 jul. 2016.