The Inter American Court of Human Rights: The Legitimacy of International Courts and Tribunals 9781032061375, 9781032061399, 9781003200888

Citation preview

The Inter American Court of Human Rights

This book provides a critical legal perspective on the legitimacy of international courts and tribunals. The volume offers a critique of ideology of two legal approaches to the legitimacy of the Inter-American Court of Human Rights (IACtHR) that portray it as a supranational tribunal whose last say on human rights protection has a transformative effect on the democracies of Latin America. The book shows how the discussion between these Latin American legal strands mirrors global trends in the study of the legitimacy of international courts related to the use of constitutional analogies and concepts such as the notion of judicial dialogue and the idea of democratic transformation. It also provides an in-depth analysis of how, through the use of those categories, legal experts studying the legitimacy of the IACtHR enact self-validation processes by making themselves the principal agents of transformation. These self-validation processes work as ideological apparatuses that reproduce and entrench the mindset that the legal discipline is a driving force of change in itself. Further, the book shows how profiling the Court as an agent of transformation diverts attention from the ways in which it has pursued a particular view of human rights and democracy in the region that creates and reproduces relations of inequality and domination. Rather than discarding the IACtHR, this book aims to de-centre the focus away from formal legal institutions, engaging with the idea that ordinary people can mobilise and define the content of law to transform their lives and territories. The book will be a valuable resource for scholars working in the areas of human rights law, law, public international law, legal theory, constitutional law, political science and legal philosophy. Natalia Torres Zúñiga is a postdoctoral research fellow at the Norwegian Centre for Human Rights, University of Oslo. She writes in the areas of international human rights law, constitutional law, law and political economy.

The Inter American Court of Human Rights The Legitimacy of International Courts and Tribunals

Natalia Torres Zúñiga

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Natalia Torres Zúñiga The right of Natalia Torres Zúñiga to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-032-06137-5 (hbk) ISBN: 978-1-032-06139-9 (pbk) ISBN: 978-1-003-20088-8 (ebk) DOI: 10.4324/9781003200888 Typeset in Galliard by Deanta Global Publishing Services, Chennai, India

For Stein

Contents

Introduction 1 1 A general framework on the discourse on the legitimacy of international human rights bodies Introduction 7

7

1. On the context and progress of the international law discipline 8

1.1. A flourishing of international legal institutions and liberal values: after darkness, war and politics  10 1.2. The rise of discourses on the legitimacy of international human rights judicial bodies  16 2. Attempts to theorise the legitimacy of international judicial bodies  20

2.1. Normative legitimacy 22 3. Two normative approaches to IHRB legitimacy  25

3.1. The state-centric model of legitimacy  25 3.2. The constitutional approach to the legitimacy of international tribunals  30 4. Conclusion 33

2 Ideology and self-validation: Critical legal theory Introduction 35

35

1. Critical legal studies  39 2. Legal Marxism 45

2.1. A toolkit of Marxist concepts  48 3. Self-validation and ideology as theoretical lenses: problematising legitimacy of the IACtHR  58



viii Contents

3 The Inter-American Court of Human Rights and its practice as a supraconstitutional tribunal Introduction 62

62

1. The Inter-American System of Human Rights and the IACtHR 65 2. Performance and practices of the IACtHR  69

2.1. Creation of uniform standards of human rights contents 74 2.2. Social rights protection  76 2.3. Holistic reparations 78 2.4.  Supervision of compliance  82 3. Control of conventionality, general effects and Inter-American Corpus Juris 84

4 Two competing legal streams on the legitimacy of the Inter-American Court of Human Rights Introduction 91 1. On the discourses on the legitimacy of the Court and the actors who drive them  92 2. The constitutional perspective  95

2.1. Who drives the constitutional perspective?  95 2.2. The constitutionalisation of international law  97 2.3. Supranationalisation I: the existence of a common Corpus Juris and bloc of conventionality  100 2.4. Dialogue and subsidiarity  103 2.5. Supranationalisation II: control of conventionality  105 2.6. Supranationalisation III: the Court’s public authority and transnational democratic grounds  107 2.7. Margin of appreciation: between reluctance and acceptance 110 2.8. Democratic transformation 111 3. The state-centric local democratic approach  114

3.1. Who drives the state-centric approach?  114 3.2. Approach to the existence of a ius constitutionale commune 114 3.3. Principle of subsidiarity against supranationalisation 117 3.4. Arguments against the Court as ultimate interpreter (Supranationalisation II)  118 3.5. Defence of local democracies and sovereignty (Supranationalisation III)  121 3.6. Court and its democratic legitimacy  124

91

Contents  ix

3.7. Margin of appreciation as an alternative solution to supranationalisation 125 3.8. Democratic transformation at the local level  129 Conclusion 131 5 State-centric vs. constitutional discourses?: Confluence rather than opposition Introduction 132

132

1. The criteria grounding the discourses on the legitimacy of the Court  133 2. On the analysis of the actors and their discourses  135 3. Similarities masked as disagreements in the two discourses on the legitimacy of the Court  140

3.1. The constitutional analogy  141 3.2. Subsidiarity and margin of appreciation  142 3.3. Democratic transformation 143 4. Ideology and false contingency as flaws in the use of the constitutional analogy  146

4.1. The use of the constitutional analogy in international law  147 4.2. Constitutional analogies and the legitimacy of the Court  153 5. Conclusions 170

6 Ideology and the image of the IACtHR as democracy-builder 174 Introduction 174 1. Democracy and the IACtHR as a democracy-builder  175 2. Ideology critique of the two legal discourses on the legitimacy of the IACtHR as a democracy-builder  179

2.1. Naturalisation and false contingency of the concept of procedural democracy  179 2.2. Procedural democracy: expert’s unfinished journey 181 2.3. Ideology and distrust over majorities  184 2.4. Democratic proceedings and substantive equality 187 Conclusion 193 Conclusion 197 1. The actors involved in the deployment of the two legal perspectives 199 2. Ideology as a method of critique  200

x Contents 3. Constitutional analogy: On the existence of a ius constitutionale commune 201

3.1. Ius constitutionale commune created by judges  201 3.2. Liberal constitutionalism: human rights and democracy as part of the ius constitutionale commune  202 4. Dialogue, margin of appreciation and subsidiarity  203 5. On the role of the Court as an agent of democratisation 204 6. On the legitimacy of the Court  206

Index

209

Introduction

The contents of this book are the result of my interest in studying the role that the Inter-American Court of Human Rights (IACtHR) performs in the protection of human rights in the Latin American region. Overall, this monograph expresses my discontent with how constitutional lawyers and IACtHR judges understand and shape the authority and legitimacy of this international human rights tribunal. Since the beginning of its functioning in 1979, the IACtHR has developed standards on human rights protection that seem to rest on a universalistic understanding of human rights that do not necessarily admit any deference to states. It has also informally expanded its competences when it has created or designed concepts not initially recognised in the American Convention of Human Rights (ACHR). These include the mechanism of supervision of compliance for its case law, a wide range of reparations that go beyond the just satisfaction of the victims of human rights violations or the concept of control of conventionality to assess the compatibility of the national legislation and other local decisions with the ACHR. For those in the legal community working with human rights and constitutional law, the expansion of the Court’s authority and the uniformity of the standards it has created have not necessarily been seen as negative, but as helpful for the protection of human rights. As a Latin American lawyer with a background in Latin American constitutional law and human rights, until 2016 my mindset was likewise shaped to support the activism of the region’s constitutional tribunals and supreme courts as necessary for facing people’s struggles in our new democratic states, still in the process of maturation. With regard to the role of the IACtHR, then, I was always in favour of its activism. Like other constitutional lawyers, I traced a parallelism between the performance of the Latin American constitutional tribunals and the IACtHR, and I was concerned with arguments legitimating the Court’s actions. My understanding of legitimacy was informed by the theories and problems of the legitimacy of constitutional tribunals. The opportunity to start developing my interest in the legitimacy of the Court arrived with the case Gelman v. Uruguay (2011) and the attention that it aroused among the constitutional legal scholars in the following years (2012–2018). In that case, the Court declared the incompatibility of Uruguay’s amnesty law with DOI: 10.4324/9781003200888-1

2 Introduction the ACHR. Although the legislation had been approved by democratic means— by a majority in the Parliament and then confirmed with two referendums—during a democratic period, the Court ordered its modification and the prosecution of the perpetrators of human rights violations that occurred during the 1970s, when a dictatorial government held power in Uruguay. In the view of the Court, a democratic decision could not breach the right to judicial protection of the victims of mass human rights violations. Although the prohibition of amnesty laws was not a new rule in the InterAmerican System—Barrios Altos v. Peru (2001) was the first such case law—the Gelman v. Uruguay decision triggered different reactions. While some legal scholars and advocates supported the contents of Gelman v. Uruguay, the Supreme Court of Uruguay rejected the decision and refused to open criminal proceedings. Some other scholars, such as Roberto Gargarella and Jorge Contesse, argued against the decision of the Court by pointing out that it threatened the democratic principle. Gargarella in particular used arguments related to judicial review, a typical figure of constitutional law, to argue against the Court and portray it as a supraconstitutional tribunal. In my constitutional mindset, the Court had made a correct decision. Its universalistic approach was necessary because Latin American states were reluctant to respect human rights. From my standpoint, the position of scholars like Gargarella or Contesse (state-centric scholars) threatened the Court’s authority. Their views hindered the possibility that states embrace a vision in which human rights are shaped by the Court, from above, because states themselves are not subjects of trust. Like other scholars working in the field of constitutional law, such as Armin von Bogdandy and Eduardo Ferrer Mac-Gregor, who supported the Court’s performance, I started to use a constitutional law framework to build arguments in favour of the Court and its authority. In October 2015, I started my PhD studies and the initial research question of my PhD project aimed to find the normative reasons that, regardless of the consent of the states, provided support to Court’s authority to make decisions with a universalistic viewpoint, or to expand its authority informally. In my search for answers, I enrolled as a visiting student of the Max Planck Institute for Public and Comparative Law because it drives the project Ius constitutionale commune en América Latina (ICCAL), focused on the IACtHR and its role as an agent of transformation. Some of the tenets of this project mirror elements and concepts from constitutional law and global constitutionalism. The object of my stay was to build a “constitutional” theoretical framework that justified the above-mentioned practices of the Court. I intended to construct arguments that disputed the claims made by local judges and state-centric scholars. During my time at the Max Planck Institute (2017), I became less convinced that the legitimacy of the Court should be understood in similar terms to the legitimacy of constitutional tribunals, and whether the constitutional framework scholars used to discuss its legitimacy was the right one. I stopped looking for the normative reasons supporting the legitimacy of the Court to in turn support its growing authority. I tried to understand what premises, concepts and theories

Introduction  3 grounded the discourses of those in favour of the activism of Court (the constitutional perspective) and of those arguing for constraining its informal growth (the state-centric perspective). To conceptualise my own understanding of the arguments supporting concerns on the Court’s legitimacy, I embraced the perspective of critical legal studies (CLS), especially the field of legal Marxism and the critique of ideology and false contingency. The new research questions that led to the switch in the direction of the project were these: How does the legitimacy of the IACtHR arrive as a problem and object of study? What kind of arguments, concepts and theories are involved in the notion of the legitimacy of international tribunals and the IACtHR? How do the constitutional and state-centric scholars drive the discussion on the legitimacy of the IACtHR at the discourse level? How does the critical legal theory help challenge the concept of IACtHR legitimacy? How does the critique of ideology—as a method of the Marxist tradition—contribute to building a critical analysis of the discourses on that legitimacy? By the same token, I redefined the goals of my doctoral research project. The first would be to map the arguments, concepts and theories surrounding the two competing legal-oriented perspectives—the state-centric and the constitutional— on the authority and legitimacy of the IACtHR. The second would be to build a critical analysis, based on ideology as a method of critique, to dispute the arguments and the meta-framework of those discourses, to show that they are not in opposition, and share the same ideological flaws. A third goal would be to point out that there may be other potential ways to engage with international human rights and democracy that deviate from the focus given to the institutional protection the Court provides (from above), and that can be shaped as strategies from below. As a result of the switch in the direction of my project, my argument can be stated very simply. I argue that the two legal discourses on the legitimacy of the Court—the state-centric and the constitutional perspective—are not in opposition because they use three common elements to debate its authority and legitimacy. These are the constitutional analogy, the principle of subsidiarity and the role of the Court as an agent of democratisation. In this book, I show that the two legal perspectives agree on profiling the Court as a supranational tribunal with constitutional powers whose last say on human rights protection transforms Latin America’s developing democracies. Portraying the Court as a supraconstitutional actor hides a distrust towards people as entities capable of generating their emancipation, and profiles them as passive subjects in need of institutional aid. Likewise, the argument of democratic transformation, rather than being intrinsically progressive, has not been attentive to the ways in which the Court has pursued a very particular view of democracy and human rights in the region. The larger conclusion of my book is that the current discussions on the legitimacy of the IACtHR show how legal experts enact processes of self-validation, which positions themselves and the Court as the principal agents of transformation. These self-validation processes work as ideological apparatuses that reproduce and entrench a particular mindset that defines the legal discipline as a driving

4 Introduction force of change in itself. The book calls for a reimagining of human rights and democracy in the region in a way that repositions people as active actors of local change under the dynamics of necessity and contingency. Rather than discarding the existence of the Court, I propose decentring the focus away from formal legal institutions, engaging with the idea that ordinary people can mobilise and define the content of human rights and democracy for the transformation of their lives and territories. Now let me explain why this book is a contribution. It is relevant because it provides a different reading of the dynamics of the Inter-American System of Human Rights. In the first place, there are few academic works rooted in the tradition of critical legal studies that challenge the mainstream perspective of the IACtHR as a pivotal agent protecting human rights, or that challenge what the Court and constitutional lawyers understand as human rights and democracy. This is the first study that discusses the concept of the Court’s legitimacy and the meta-framework that grounds the concerns about this legitimacy. Secondly, the novelty of this book is that it is one of very few works, if not the only work, to combine a study of the ideology present in the meanings of certain concepts of human rights, constitutionalism and democracy, and pay attention to the role legal experts play in reproducing them. Another contribution is that the structure of the monograph rests on the identification of two possible lines of arguments (discourses or approaches) that seem to be in opposition. Through identifying them and their supposed disagreements, the book provides a meta-analysis of the concepts, theories and premises that support the arguments of both perspectives, as well as of their consequences in the understanding of the functioning of an international tribunal. The result is that the disagreements transform into similarities. The book demonstrates that these similarities reproduce relations of domination on two levels: between legal experts and people, and between the hegemonic political powers and subjected states. Finally, the monograph contributes by positioning itself as part of a broader field related to the legitimacy of international adjudication, but also remarking on the particularities and context of the Inter-American System of Human Rights. It thus connects the Latin American constitutional understanding of the authority and legitimacy of the Court with the fields of global constitutionalism and practices in other fields of international law that make use of constitutional analogies. Structurally, this book is divided into six chapters. In Chapter 1, I outline the rise of studies related to the legitimacy of international tribunals after the end of the Cold War. More concretely, the chapter describes two approaches to the legitimacy of international human rights bodies with the aim of providing a general framework in which I can locate the ongoing debates on the legitimacy of the IACtHR. The chapter shows how the rise of the issue of legitimacy of international tribunals mirrors a narrative of progress and evolution in the structure and complexity of the international arena and its institutions that respond to the idea that they are governed by universal values like justice, peace and human rights. In Chapter 2, I introduce legal Marxism as the theoretical approach that grounds the arguments of my critique of the two legal perspectives on the Court’s

Introduction  5 legitimacy. Since legal Marxism is part of a larger field known as critical legal studies, the chapter provides a general account of the central tenets of CLS and the “New Stream” of international law, with a particular focus on the poststructuralist critique raised by scholars like Martti Koskenniemi and David Kennedy. Within the tradition of legal Marxism, I engage with the critique of ideology, a method used by Susan Marks in her work The Riddle of All Constitutions to discuss the ideological flaws of the right to democratic governance. Chapter 2 describes the concept of ideology that grounds my critique, as well as other devices or concepts that stem from the legal Marxist field such as false contingency, imperialism and others. Chapter 3 introduces the origins of the Inter-American System of Human Rights and the practice of its organs, namely the Inter-American Commission of Human Rights and the IACtHR. The chapter shows the activism of the Court in carrying out practices that are not originally recognised in the ACHR, triggering backlash from the local authorities. The chapter provides a wide range of information on the practice of the Court that grounds the constitutional understanding of its nature and competences. Chapter 4 approaches the central object of discussion—the tenets that support the state-centric and the constitutional approaches. It depicts them as competing and contradictory, since the scholars who support them portray them as such. Firstly, the chapter identifies the lawyers and academics involved in the deployment of the two perspectives, and defines them as members of a legal epistemic community whose discussions have constitutive effects on the understanding of the Court’s role. With regard to the constitutional approach, the chapter provides insights into the arguments that undergird the idea of the existence of a ius constitutionale commune in the region, support the image of the Court as the ultimate interpreter of the ACHR, neglect the notion of margin of appreciation and see the Court as an agent of democratisation (transformation). Similarly, it addresses the arguments of the state-centric approach, which supposedly dispute the constitutional approach. For example, I highlight arguments in favour of embracing a theory of deference, arguments in defence of the local democracies and the sovereignty of the states before the Court and arguments related to the notion of dialogue among judges. Chapter 5 is divided into two main sections. The first constitutes a transition from the previous chapters, which give a general account of my theoretical framework, the practice of the Court and the understanding of Latin American lawyers of its legitimacy. It introduces the idea that the Court and the two discourses are interrelated towards a dynamic of self-understanding and self-interpretation. Since some of the Court’s judges are actively involved in the circuits supporting the constitutional approach, I argue that this approach works as a mechanism of self-interpretation for the Court. I also maintain that the statecentric approach takes part in these dynamics of self-interpretation because it shares the constitutional approach’s assumptions about the nature of human rights democracy and the role of international institutions. This part of the chapter also describes how the state-centric approach is silent on certain arguments

6 Introduction raised by the constitutional perspective, or arrives at the same conclusions on important issues. The second section of Chapter 5 shows that the supposed oppositions between the two perspectives are in fact similarities. It demonstrates that the arguments both perspectives offer have similarities that can be summed up by three main criteria: the use of the constitutional analogies, a neglect of the principle of subsidiarity or a reinterpretation of it in hierarchical terms and the idea that the Court promotes democratic transformation. In this second part of the chapter, I introduce my view on the consequences of using constitutional analogies to describe the competences and functions of the Court. My analysis shows how the analogy serves to describe the Court as a supraconstitutional tribunal, to argue in favour of a ius constitutionale commune moulded by judges and to establish relations of verticality between the Court and local judiciaries and other local authorities. Likewise, it points out that although at first sight the state-centric approach seems to oppose the image of the Court as a constitutional tribunal, these scholars’ responses mirror the theories that either highlight the problems of democratic legitimacy that judicial review faces locally or depict the possible activism of the judiciary as a threat to the will of majorities in democracy. The chapter also shows how the state-centric scholars are sometimes silent about the arguments of the constitutional discourse, how they share with the constitutional scholars a similar understanding of the existence of a ius constitutionale commune and the notion of judicial dialogue, among other aspects. In Chapter 5, I also argue that the constitutional analogy informs the contents of the idea of the ius constitutionale commune. This means the latter reflects notions of human rights and democracy that resemble a model of liberal constitutionalism as a synonym of progress and as an ideal goal. I then build arguments to show the ideological flaws that stem from embracing a notion of ius constitutionale commune as if it were natural, contingent or apolitical. Finally, I establish the connection with the contents to be discussed in Chapter 6, that is, the concepts of democracy and equality. The sixth and final chapter encompasses my critique of the contents of the notion of ius constitutionale commune with a special focus on the concepts of democracy and human rights (equality). I use elements of the Marxist critique to analyse the concept of democracy that profiles the Court as a democracystrengthening agent. I focus on how the two discourses and the Court reproduce a model democracy grounded on a notion of equality of subsistence or recognition that provides limited protection to certain groups without challenging the root causes of poverty and misery in Latin America. The chapter also analyses the right to prior consultation of indigenous and Afro-descendant people, in order to show how the two scholarly discourses provide support to the Court’s protection of equality in terms of a politics of inclusion in the capitalist economic system, and profile it as an example of democratisation or transformation. I dispute arguments that the politics of inclusion has transformative effects, and argue that it reinforces the dynamics of capitalism.

1

A general framework on the discourse on the legitimacy of international human rights bodies

Introduction Latin American legal scholars working in constitutional law and international human rights have developed two competing legal discourses on the legitimacy of the Inter-American Court of Human Rights (IACtHR). These carry with them two different, often contradictory, conceptualisations of the Court. One proposes a constitutional approach that profiles the IACtHR as a hierarchical organ with constitutional powers acting on behalf of the region’s people. The second adopts a state-centric perspective of the court as defending the sovereignty of democratic states, but as also carrying out moderate activism with regard to the region’s “weakest democracies.” The two approaches generally frame their debates in terms of democratic legitimacy, and both engage with the constitutional analogy, the principle of subsidiarity and the argument of democratic transformation. This Latin American debate on the legitimacy of the IACtHR necessarily relates to a wider ongoing discussion on the legitimacy of international institutions and international human right bodies (IHRB). It is crucial to note, however, that the arguments and ideas developed by the legal streams in Latin America have their own features that respond to the specific political history of human rights in the region during the 20th and 21st centuries. From that premise, this chapter aims to provide an overview of the rise of the legal discourses on the (democratic) legitimacy of IHRB, as well as a general appraisal of ongoing discussions around the topic. The chapter is divided into three sections. The first section introduces an explanation of the rise of the discourses on the democratic legitimacy of the IHRB as part of a narrative of progress influenced by the tenets of international liberalism during the post–Cold War period. The second section describes the definition and main features of IHRB normative legitimacy. In describing the current status of the concept of IHRB legitimacy, the book will adopt certain categories to portray the streams object of study. The third section refers particularly to the state-centric and constitutional approaches to the democratic legitimacy of IHRB as leading concepts

DOI: 10.4324/9781003200888-2

8  International human rights bodies that allow describing these two streams—that is to say, to find sticking and convergence points between them.1

1. On the context and progress of the international law discipline This section introduces current legal, political and philosophical scholarship on the idea of a crisis of legitimacy (that is, democratic legitimacy) affecting international human rights bodies. The purpose is to provide an overview of the topic that will be used in the following chapters in connection with the dynamics of Latin American legal scholarship. Introducing “legitimacy” as a term and concept will not necessarily lead to promoting standards that help assess the democratic legitimacy of the IACtHR or find the normative basis for its democratic legitimacy. Rather than using the idea of legitimacy to develop arguments justifying IACtHR activism and the idea of its transformative judicial power, the concept works as a departure point to discuss some of the premises that support its study among legal scholars. The idea of legitimacy is pivotal because it enables me to step back to grasp the rationale of a narrative that supports the concerns and interests contained within this concept. The following sections will describe the premises that constitute the terrain for concerns regarding the democratic legitimacy of IHRB and the IACtHR. In doing this, they introduce a definition of democratic legitimacy and its link to the idea that IHRB contribute to democratisation or promoting democracy through the protection of human rights—a moral, legal value they pursue by nature. To begin with, it should be pointed out that the focus on the legitimacy of the IACtHR finds its roots in the rise of discourses on the evolution of international law’s nature and functions, that is to say, in the narrative of progress of the legal discipline. According to this discourse, international law has gained territory and power in itself, as well as in its institutions; it could be a driving force to achieve specific desirable universal goals such as peace, protection of human rights and democracy. The word “progress” is used here purposefully, because it refers to the idea that the international legal discipline is, per se, in a state of positive development. This idea of progress also serves to demarcate the legal discipline’s autonomy from politics. Similarly, it implies that international law is inherently a force for good that contributes to promoting order and other universal moral values. Indeed, developments in the international legal arena are generally narrated as linear and as the proof of international law’s desired future. The examples I will provide are in fact written in the language of progress, that is to say, in terms of self-evident development, both in the values that international law pursues (away

1 This chapter also refers to the state-centric and constitutional approaches to the IACtHR’s legitimacy, but it is Chapter 4 that deals specifically with approaches to the IACtHR.

International human rights bodies  9 from power, politics and injustice towards law, predictability and justice) and the discipline in itself (as a governance system, as a technique, as effectiveness).2 The idea of the legal discipline’s progress defines the grounds of mainstream scholarship in the field. This “immanent progressive value” of international law can be linked with a narrative that is not objective and might be defined as politics. By highlighting the idea of progress, it is possible to demystify mainstream narratives of international law. Demystification could be a meaningful form for thinking about international law with a different horizon of intellectual possibility. Calling into question the idea of progress has also a direct effect on the way one can understand the growing interest in the legitimacy of IHRB and particularly the IACtHR. To illustrate how the notion of progress operates, Hathaway and Schapiro’s 2017 book The Internationalists: How a Radical Plan to Outlaw War Remade the World is one example of the way in which mainstream international lawyers and international relations scholars describe a unidirectional narrative of international law experiencing a “transformation” from an “Old World Order” to a “New World Order.” The authors guide the reader from the idea of the former, in which the privilege to use force entailed a licence to kill, “diplomacy” and the rights of conquest, towards the latter, which prohibits use of force and qualifies it as a crime of aggression, has no coerced or forced agreements and makes conquest illegal.3 The Internationalists is a typical example of the way in which accounts of international law are written: They are epochal and identify “hinges” upon which international order turns into something better. Mainstream legal perspectives have also portrayed progress by, for example, describing a switch from absolutism to democracy and “the end of history,” a new international liberalism or institutionalism in the international arena after the end of the Cold War,4 and an evolution of the sources of international law.5 The pattern of such universal and unilateral narratives entails that the “progress” in question is always led by liberal, democratic heroes battling against conservative forces. These narratives refer to a past that encompasses principles of progress that ratify the successful history of the present.6 Here, it is important to mention that the paradigm shifts narrated are achieved through the adoption of

2 Thomas Skouteris, “The Idea of Progress,” in The Oxford Handbook of the Theory of International Law, eds. Anne Orford and Florian Hoffman (Oxford: Oxford University Press, 2016); The Notion of Progress in International Law Discourse (The Hague: Asser Press, 2010). 3 Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017). 4 Anne-Marie Slaughter Burley, “Law among Liberal States: Liberal Internationalism and the Act of State Doctrine,” Columbia Law Review 92, no. 8 (1992): 1907–1996; Daniel Joyce, “Liberal Internationalism,” in The Oxford Handbook of the Theory of International Law, eds. Orford and Hoffmann, 471–487; Florian Hoffmann, “International Legalism and International Politics,” in The Oxford Handbook of International Law, eds. Anne Orford and Florian Hoffmann (Oxford: Oxford University Press, 2016), 954–984. 5 Skouteris, The Notion of Progress. 6 Herbert Butterfield, The Whig Interpretation of History (London: Bell, 1931).

10  International human rights bodies legal forms that enabled outcomes like the prohibition of the use of force. Legal activism is seen as a key element in triggering the change from the old to the new. Taking into account such accounts of pivots or hinges in the narrative of international law’s progress, this book will focus primarily on a narrative focused on a post–Cold War stage that describes how international law and international structures or institutions have evolved as a result of the historical fact of the war’s end.7 Within that time frame, two main fields overlap in the development of this book, namely the idea of proliferation and the project of international (global) democracy.

1.1. A flourishing of international legal institutions and liberal values: after darkness, war and politics The starting point for discourses on the legitimacy of international institutions and judicial bodies can be found in the end of the Cold War and the ways in which it has been interpreted. The dominant narrative describes the Cold War as a period in which traditional international law was deformed because the hegemonies of the East and West were preoccupied with negotiating power based on the idea of national sovereignty. According to this narrative, during the Cold War, there was no room for applying rule of law (i.e. for judicial institutions’ success as dispute-settlement mechanisms).8 In that context, the mainstream narrative indicates that moralism was necessarily attached to the great powers’ struggles.9 Accordingly, it insists that the end of the Cold War led to morality and liberalism fitting together again, since the former is endemic to the latter.10 The renaissance of liberalism enabled a progressive move to the rule of law in the international arena or a revival of international liberalism.11 According to the mainstream legal discourse, international liberalism involves a project of international law that promotes the development of international institutions and frameworks to enable the coordination of international society for trade, peace, security, the civilising of conflict, democracy and human rights, as well as making state sovereignty and cooperation compatible. The international liberalist conception of international society (and community)

  7 The way in which this historical fact has been presented or described is not objective either, but to discuss the objectivity or non-objectivity of narrations of the Cold War’s end is not the object of this book.   8 Cesare Romano, “The Proliferation of International Judicial Bodies: The Pieces of the Puzzle,” New York University Journal of International Law and Politics 31, no. 4 (1999): 729, 31.   9 Robert O. Keohane, “Twenty Years of Institutional Liberalism,” International Relations 26, no. 2 (2012): 130. 10 Keohane, “Twenty Years.” 11 Keohane.

International human rights bodies  11 corresponds with the image or definition of liberal states, which in turn rest on ideas of Western democracy and rule of law.12 On the post–Cold War stage, liberal internationalism has been understood as an essential tool for creating an environment built around universal values rather than in material self-interest.13 Using this idea, scholars claim that liberal states behave better than the illiberal ones.14 According to Slaughter, liberal states act in a zone of law, while non-liberal states operate in a “zone of politics” with no rule of law.15 Slaughter, who works within the new internationalism perspective, argues in favour of adopting a liberal transnational rule of law as a way to shaping a new understanding of both transnational and public international law. She builds a dichotomy between liberal and non-liberal states in order to insist that the liberal model must be the foundation of international relations.16 This argument connects to a well-known work by Rawls, The Laws of Peoples (1993), which argues that the law of peoples (international law) is developed within a framework of political liberalism. For Rawls, the law of peoples must be an extension of a liberal conception of justice for a domestic regime to a Society of Peoples.17 Rawls suggests that a liberal society is better positioned or superior in moral terms than a non-liberal one. This implies a view that liberal people have a duty to encourage decent people and other non-liberal societies to change and adopt the principles of liberal societies. In general, it is possible to assert that the renewal of faith in liberalism involved building a connection between liberal values (“liberal democracy,” peace and human rights) and the development or increasing influence of international law in local legal orders.18 In combination with moral values like democracy and human rights, the end of the Cold War also implied the spreading of the “liberalisation” of economies, meaning the promotion of free markets. In the liberal

12 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Hersch Lauterpacht Memorial Lectures (Cambridge: Cambridge University Press, 2002), 228. 13 Burley, “Law among Liberal States,” 1920. 14 Slaughter defines a liberal state as one with juridical equality, constitutional protections of individual rights, representative governments and market economies based on private property rights. A non-liberal state is defined as not having all these characteristics. Burley, 1909. 15 Burley. 16 Burley. 17 John Rawls, The Law of Peoples: With the Idea of Public Reason Revisited (Cambridge, MA: Harvard University Press, 1999). 18 Last but not least, transnational civil society networks are also objects of study in a post– Cold War period. Some studies focus on the importance of international networks in the human rights field and how they contribute to the spread of ideas on individual criminal accountability (human rights violations). For example, in The Justice Cascade, Sikkink proposes that truth commissions and high-level human rights prosecutions (criminal accountability or justice cascade) could spread due to two structural changes in the international community—a wave of democratisation and the end of the Cold War. Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W.W. Norton, 2011).

12  International human rights bodies account, democracy, human rights and free markets are not in conflict because they are connatural concepts. Indeed, it has been said that economic liberalisation is the only way to promote human rights and democracy.19 Thus, liberalising economies, adopting models of electoral democracy and protecting human rights are widely seen as the product of a context of progress, as the post–Cold War stage has been characterised.20 In a nutshell, a set of actions and new topics of study focused on the idea of the morality of liberalism (promotion of democracy and human rights) and have gained a central role in the international arena.21 The revitalisation and expansion of the United Nations’ collective security system after the break-up of the Soviet Union and the proliferation of international tribunals are cases in point. For example, the UN has increased the rate and scope of its executive actions since the Cold War’s end. That is to say, its peacekeeping operations and administration of territories have become more frequent and more ambitious.22 Based largely upon the idea that a commitment to humanitarian ideals demands action from the “international community” in the form of intervention, these have taken place primarily in formerly colonised areas.23 A second relevant assumption is that the principal threats to democracy and human rights occur at the local level, making it necessary to collectively intervene in some nation states. The ambition and complexity of these operations have prompted a set of questions regarding the authority, effectiveness and legitimacy of the UN’s international executive actions.24 These can be summarised as follows: Why should an international executive, particularly the UN’s executive organs, have the power to govern in the decolonised world instead of domestic authorities? This gave rise to the concept of “responsibility to protect,” since traditional understandings of the UN’s authority were inadequate for its increased and broadening executive

19 Anne Orford, “Locating the International: Military and Monetary Interventions after the Cold War,” Harvard International Law Journal 38, no 2 (1997): 464–475. Orford criticizes the abovementioned assumption. Instead, she argues that market liberalization programs imposed by international instititions may pose a threat to democracy and human rights in the national legal orders. 20 The promotion of market liberalisation and electoral democracy arguably strangled the possibility of imagining alternative ways to promote democracy and economic growth in the Third World. 21 Keohane, “Twenty Years.” 22 Starting in the late 1950s, the UN has developed a body of practices with the main goal of maintaining order and protecting life in the decolonised world. Countries undergoing peace operations and territorial administrations in the immediate post–Cold War period included Kosovo, East Timor and Somalia. UN Missions have also been established in Rwanda and Haiti. 23 Orford, “Locating the International,” 447. Indeed, in the 1950s, the development of executive rule was based on the idea that decolonisation could involve a new theatre for the Cold War. 24 Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press, 2011).

International human rights bodies  13 actions.25 This doctrine calls on states to protect their populations, and provides for UN Security Council action to do so if they fail. International economic institutions, like the International Monetary Fund (IMF) and the World Bank, meanwhile, have influenced the policies of many governments.26 These economic interventions have impacted the capacity of states and people to determine their own political and economic structures. To illustrate this point, the IMF and the World Bank have influenced governments’ policies by imposing conditions on access to credits and loans, and through its role in organising debt rescheduling. Even when the directives provided by these organs are restricted to economic issues, in practice they intervene in the governance of recipient states.27 In order to achieve economic liberalisation, the World Bank promotes the idea that education, labour markets and health come under economic and expert decision-making, rather than political and popular decisionmaking.28 What’s more, international economic institutions require changes to the political and constitutional frameworks of recipient states in the name of economic management or liberalisation.29 In general, theories regarding the responsibility to protect and the authority of international economic institutions are built on the idea that international law and international institutions promote democracy and human rights. Accordingly, the legitimacy of the international institutions and their lack of conflict with the principle of democracy have been questioned. Hippler shows that the market liberalisation promoted by international economic institutions has often infringed on the right to self-determination or democratic governance of local political communities in substantive terms.30 Similarly, the study of international judicial dispute settlements has occupied a central role in legal, political and philosophical scholarship dealing with international law. There is an increasing interest in the proliferation of international tribunals (new tribunalism) and the expansion of their competences (sometimes without the relevant states’ consent).31 In the narrative that defends and justifies the proliferation of tribunals, the phenomenon was possible because of the end

25 The Responsibility to Protect Doctrine was agreed by the UN’s Millennium Summit of 2005. 26 Orford associates the intervention of the IMF and the World Bank with the humanitarian crisis that took place in former Yugoslavia. The “shock therapy doctrine” they imposed caused the political crisis in that country and others. Orford, “Locating the International.” 27 These were Latin American states and Eastern European states in transition from communism. “Locating the International: Military and Monetary Interventions after the Cold War.” 28 Orford, “Locating the International.” 29 Orford. 30 Jochen Hippler, The Democratisation of Disempowerment: The Problem of Democracy in the Third World (London: Pluto Press with Transnational Institute, 1995). 31 Karen Alter, “The Multiplication of International Courts and Tribunals after the End of the Cold War,” in The Handbook of International Adjudication, eds. Cesare Romano, Karen Alter, and Chrisanthi Avgerou (Oxford: Oxford University Press, 2013).

14  International human rights bodies of the Cold War and the subsequent, or parallel, wave of democratisation.32 It rests on the idea that there is a new paradigm in international law involving a rule-oriented approach to international governance that benefits states and individuals, and faith in the capacity of tribunals as agents of transformative change has revived accordingly. The rising number of tribunals provides a sense of progress in two ways. Firstly, international law is perceived as becoming stronger. Secondly, it dovetails with a perception that arbitrariness and power play in international relations have decreased. This shift or evolution in international law is seen as being driven by the increased number of international tribunals. In general, their proliferation is assumed as a natural, long-awaited development, reflecting a process by which judicialisation has become the modern alternative for conflict-solving.33 It has also triggered a focus on lawyers as central actors in changing the way in which international disputes are solved—that is, before tribunals instead of through war. The progress narrative that grounds discourses of proliferation is thus a selfvalidation device for the discipline and for lawyers who see themselves as social engineers or architects of the structures of the international legal order.34 Taking into account these elements, scholars working on this field tend to present the proliferation of international tribunals as proving the existence of an international justice system. Despite its imperfections, this system is seen as having evolved over the past 20 years. Alter explains the way in which the international justice system (international courts, or “ICs”) has evolved thus: Adaptations in the design of ICs, and increased litigation in front of ICs suggest a gradual strengthening of international judicial institutions over time. Some ICs experience crises and moments of political backlash, but the larger trend over time has been in the direction of extending access, expanding subject-matter jurisdiction, adding remedies, and increasing litigation.35

32 Karen Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton, NJ: Princeton University Press, 2014), 209. Alter describes the Cold War’s end as the breaking point in the evolution of an international system of justice: “The end of the Cold War led to the reform of existing ICs, the creation of many new ICs, and increased litigation in all ICs. Today’s ICs are overwhelmingly new-style ICs that copy a small repertoire of basic models. Many of these ICs are associated with club goods, where membership includes submitting to an IC’s compulsory jurisdiction.” 33 Skouteris, The Notion of progress. Skouteris shows how progress is presented in the discourses of proliferation as neutral, rather than as connected to any power dynamic, and that this neutrality is ideological because it masks or overlooks the link between law and politics: “tribunals emerge, sprout, spring out like mushrooms in a natural chain of cause and effect, but not as parts of ideological projects or historical conjunctures in which the discipline (and its scientists) are an organic part. The author adopts the posture of a dispassionate, neutral, objective chronicler that merely transcribes events as they unfold before his sight, from a seemingly external point of view.” 34 See Chapters 2, 5 and 6. 35 Alter, The New Terrain.

International human rights bodies  15 A 2018 publication by Grossman, Cohen, Føllesdal and Ulfstein also reflects the idea of progress that grounds new tribunalism as a subject of study.36 It argues that international judicial bodies currently make decisions with implications for the whole international community, setting standards related to whether the use of force is legal, the content of sovereign rights and the protection of human rights, trade and environment. It contends that such decisions transcend the parties of each case.37 This way of understanding the steady proliferation (and increased use) of international courts and tribunals has triggered enquiries into institutional hierarchy, normative conflict and even the fragmentation of international tribunals. These involve theories on the adjudication of international tribunals, theories on transnational legal processes and studies of the role of international tribunals from sociological and philosophical perspectives, among others.38 In brief, those approaches have focused on the following: (1) compliance and effectiveness of decisions (which is connected to discussions around the legitimacy of judicial bodies); (2) the role of international courts as agents (in functionalist terms) and as social institutions; (3) the dialogue between international and judicial authorities; (4) the behaviour and finance of international tribunals; (5) rethinking the judicial lawmaking and its position as source of international law; (6) discussing the elements for the legitimacy of the international judiciary.39 The three examples described above―the authority of the UN, the economic institutions of global governance and the new tribunalism―trigger debate on the legitimacy of the authority of the international institutions. The scholars working in these new fields of study address arguments like the protection and promotion of human rights and democracy as the moral principles that validate the actions of these institutions. These two values, or material principles, of international law become the driving ideals that support the progress narrative, which in turn supports the increasing influence of international institutions in national legal orders. Likewise, the growing attention to these two principles connects with the assumption that the state consent model—in which the will of states define the competences of these international organisations—does not provide sufficient foundations for the competences that do not stem from the relevant treaties or original powers.

36 Harlan Cohen, Andreas Følllesdal, Nienke Grossman, and Geir Ulfstein, “Legitimacy and International Courts—A Framework.” in Legitimacy and International Courts, eds. Harlan Cohen, Andreas Føllesdal, Nienke Grossman, and Geir Ulfstein (Cambridge: Cambridge University Press, 2018). 37 Cohen, Føllesdal, Grossman, and Ulfstein, “Legitimacy.” 38 Pierre-Marie Dupuy and Jorge Viñuales, “The Challenge of ‘Proliferation’: An Anatomy of the Debate”; Samantha Besson, “Legal Philosophical Issues of International Adjudication”; Mikael Rask Madsen, “Sociological Approaches to International Courts,” in The Oxford Handbook of International Adjudication, eds. Romano, Alter and Shany. 39 Romano, Alter and Shany, The Oxford Handbook.

16  International human rights bodies With regard to the “new tribunalism,” this book focuses on the issues of legitimacy of the international human rights judicial bodies. As with global governance institutions, the question of legitimacy of tribunals exceeds the notion of state consent as the principle grounding the authority or competence of IHRB. As it will be discussed, much of the debate about the IHRB legitimacy is influenced or driven by the same concerns or issues that have arisen around global governance institutions.40 However, the debates on IHRB legitimacy have their own particularities.

1.2. The rise of discourses on the legitimacy of international human rights judicial bodies The definition of international human rights judicial bodies (IHRJB) includes regional tribunals such as the European Court of Human Rights (ECtHR), which interprets and adjudicates the European Convention on Human Rights (ECHR), the Inter-American Court of Human Rights (IACtHR) established under the Organization of American States (OAS), which interprets the American Convention on Human Rights (ACHR), and the African Court of Human Rights. These regimes emerged at the end of the Second World War and became relevant tools for individuals and political actors against states during the 1970s. Through the lens of a unilinear progress narrative, the legal and political science scholarship highlights that human rights regimes have now become institutionalised. This institutionalisation encompasses a “set of international practices, almost universally recognised, if not always respected.”41 In fact, it is possible to state that while the relevance of human rights is rarely disputed, and states tend to endorse international human rights norms, states do dispute international institutions’ practices, such as interpreting, monitoring, mediating, adjudicating, enforcing and implementing those norms.42 In terms of the role IHRB perform in relation to the protection of human rights, they are profiled as institutions that apply international law in a manner beneficial to the international community as a whole.43 Indeed, IHRB are seen as being able to compel changes in legislation, correct persisting human rights

40 Armin von Bogdandy and Ingo Venzke, “In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification,” European Journal of International Law 23, no. 1 (2012): 7–41. 41 Johan Schaffer, Andreas Føllesdal, and Geir Ulfstein, “International Human Rights and the Challenge of Legitimacy,” in The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, eds. Andreas Føllesdal, Johan Karlsson Schaffer, and Geir Ulfstein (Cambridge: Cambridge University Press, 2014), 1. 42 Schaffer, Føllesdal, and Ulfstein, The Legitimacy. 43 In general, international lawyers (judges) are given a central role as builders and defenders of the basic principles of the international system. Skouteris describes lawyers’ faith in the phenomenon of proliferation: Have we not, after all, managed to establish the International Criminal Court, a dream come true for many generations? Is it also not true that the International Court of Justice has never been so busy? Has the relative success of the ICTY and

International human rights bodies  17 violations by increasing accountability and punitive measures and provide remedies or reparations to victims. The progress narrative also pinpoints the idea that IHRB, as part of international human rights regimes, shape choices among civil society, individuals and groups since they provide standards for evaluating states’ actions or behaviour and for seeking justice in local and international arenas. In addition, scholars who focus on the role of IHRB usually find a link with democracy.44 They insist that the human rights protection provided by international human rights bodies contributes directly to promoting democracy or legitimising the governments at the local political communities. The scholarship cites, as examples of this contribution to democracy, the fact that IHRB have developed standards on protecting the right to life, political rights and freedom of expression, or have helped strengthen rights in post-dictatorial phases.45 IHRB are defined as democracy builders, as pivotal actors who promote standards of protection of human rights and therefore democracy.46 This premise is linked to the idea that local democracy does not define its features by itself, but that they are informed by international law.47 Academics’ interest in the impact that international human rights and IHRB have on local democracies thus has several outcomes. The first is that tribunals and IHRB are profiled as constitutional tribunals that exert a counter-majoritarian role in protecting human rights.48 Thinking of the IHRB as constitutional tribunals also leads to an argument that defines the promotion and protection of minorities and their right to equality a progressive function of international judicial review that shall be followed by national authorities.49 Another consequence of linking IHRB with the concept of democracy is related to the use of evolutive interpretation of treaties and of precedent in the international human rights law. Scholars and IHRB themselves argue that “evolutive” or “dynamic”

ICTR not triggered a domino effect in the domestic orders of many states that now endorse universal jurisdiction? Skouteris, The Notion of Progress. 44 Tom Daly, “The Alchemists: Courts as Democracy-Builders in Contemporary Thought,” Global Constitutionalism 6, no. 1 (2017): 104–108; Alter, The New Terrain, 335–365. 45 James A. Sweeney, The European Court of Human Rights in the Post-Cold War Era: Universality in Transition, Routledge Research in Human Rights Law (London: Routledge, 2013). Christina Binder, “The Prohibition of Amnesties by the Inter-American Court of Human Rights,” German Law Journal 12, no. 5 (2011). 46 Daly, “The Alchemists.” 47 Steven Wheatley, The Democratic Legitimacy of International Law, vol. 29, Studies in International Law (Oxford: Hart, 2010): 246. 48 Andreas Føllesdal, “The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory,” Theoretical Inquiries in Law 14, no. 2 (2013). 49 Laura Clérico and Martín Aldao, “La Igualdad Como Redistribución Y Como Reconocimiento: Derechos De Los Pueblos Indígenas Y Corte Interamericana De Derechos Humanos,” Estudios constitucionales: Revista del Centro de Estudios Constitucionales 9, no. 1 (2011): 191–192.

18  International human rights bodies interpretation of human rights treaties is necessary in order to ensure that rights remain “practical and effective.”50 Given the type of functions that IHRB perform, or that have been attributed to them, scholars contend governments’ criticisms of human rights bodies are not a surprise.51 Governmental authorities rejecting IHBR decisions is normal because “no authority whose power is directly challenged by human rights advocacy is likely to concede to its legitimacy.”52 Scholarship has also recently highlighted the fact that the human rights bodies like the ECHR and IACtHR have been criticised for expanding their competences and for potentially threatening democratic principles. Regardless of differences in the political contexts in which these regimes have evolved, scholars working in the field of human rights point out that IHRB face challenges linked to the practices through which they exert their authority. ECHR judgments have been criticised by national politicians and scholars for going too far, or being too activist.53 Equally, applicants, NGOs and some academic commentators have criticised the Court for not going far enough.54 Criticism of the ECHR has especially revolved around cases Lautsi v. Italy, Hirst II v. UK and MSS v. Belgium,55 and even when the decisions made seem to represent an exception rather than a rule, scholars have raised critiques reminiscent of the debates between local judiciary carrying out a judicial review and parliaments. To illustrate, Zwart criticises the fact that in Hirst II, the Court declared the prisoner voting ban contrary to the European Convention on Human Rights, even though at least 12 states party to it had similar restrictions in their national

50 Eirik Bjørge, The Evolutionary Interpretation of Treaties (Oxford: Oxford University Press, 2014); George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007); Jean-Paul Costa, “On the Legitimacy of the European Court of Human Rights’ Judgments,” European Constitutional Law Review 7, no. 2 (2011): 173–182. 51 Schaffer, Føllesdal, and Ulfstein, “International Human Rights and the Challenge of Legitimacy” in Schaffer, Føllesdal, Ulfstein, The legitimacy. 52 Michael Ignatieff, Human Rights as Politics and Idolatry, eds. Amy Gutmann and K. Anthony Appiah, The University Center for Human Values Series (Princeton, NJ: Princeton University Press, 2001). 53 Zwart, Tom. “More Human Rights than Court: Why the Legitimacy of the European Court of Human Rights Is in Need of Repair and How It Can Be Done.” In The European Court of Human Rights and Its Discontents, eds. Spyridon Flogaitis, Tom Zwart, and Julie Fraser, Cheltenham: Edward Elgar Publishing, 2013, 71. 54 Egbert Myjer, “Why Much of the Criticism of the European Court of Human Rights Is Unfounded?,” in The European Court of Human Rights and Its Discontents: Turning Criticism into Strength, eds. Spyridon Flogaitis, Tom Zwart, and Julie Fraser (Cheltenham: Edward Elgar Publishing, 2013), 39–40. 55 However, scholars also point out that the above-mentioned cases are not necessarily representative of the ECHR or are sensitive topics for the respondent states. Some studies show that despite the debate around the legitimacy of the European Court of Human Rights, it enjoys a high level of legitimacy among its stakeholders. Başak Cali, Anne Koch, and Nicola Bruch, “The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights,” Human Rights Quarterly 35, no. 4 (2013): 955–984.

International human rights bodies  19 legislation. For him this is a type of decision on which the Court has made policy judgments and masked the fact by using standards like “European consensus.”56 Bellamy and Dzehtsiarou also see these cases entail a problem of democratic legitimacy. In their opinion, ECHR decisions challenge the decisions of democratically elected governments in comparable terms to the counter-majoritarian argument against judicial review.57 Also, in the Görgülü judgment, the German Federal Constitutional Court stated that the German legislature may decide not to comply with international agreements like the European Convention to avoid violating German constitutional principles.58 In the same vein, as it will be described in Chapters 3 and 4, the IACtHR has developed a set of practices that are not recognised formally in the ACHR, such as the doctrine of control of conventionality and the mechanism of supervision of compliance.59 Likewise, it has adopted standards of human rights protection that do not necessarily meet the rules or criteria of consensus in the Latin American region, like the prohibition of amnesty laws.60 This has led to the Court’s being profiled as an activist tribunal or supraconstitutional court. Scholars who study the IACtHR have reacted in two ways. Supporters point to the IACtHR’s pivotal role in protecting human rights and provide arguments that justify its activism, or argue that it should not be restricted in any way because its role in protecting human rights is a sort of transnational democracy.61 Critics say the IACtHR threatens the principle of democracy or sovereignty. The leading case underpinning this claim is Gelman v. Uruguay, which prohibits the adoption of amnesty laws in the Latin American region, even when passed during a democratic period.62 Other critics say the Court’s universalistic approach does not leave room for national debate, or for the margin of appreciation doctrine.63 Some scholars

56 Zwart, More Human Rights. 57 Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge: Cambridge University Press, 2015); Richard Bellamy, “The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the European Convention on Human Rights,” European Journal of International Law 25, no. 4 (2014). 58 Zwart, More Human Rights. 59 Jorge Contesse, “Resisting the Inter-American Human Rights System,” Yale Journal of International Law 44, no. 2 (Summer 2019). Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 154 (September 26, 2006), https://www.corteidh.or.cr/docs/casos/articulos/seriec154ing.pdf. 60 IACtHR, Case Gelman v. Uruguay. Merits and Reparations (Judgment of February 24, 2011, Series C, No. 221), https://www.corteidh.or.cr/docs/casos/articulos/seriec221ing.pdf. 61 Armin von Bogdandy, and René Urueña. “International Transformative Constitutionalism in Latin America,” The American Journal of International Law 114, no. 3 (2020), 436. 62 Roberto Gargarella, No Place for Popular Sovereignty: Democracy, Rights, and Punishment in Gelman v. Uruguay, SELA (Seminario Latinoamericano De Teoría Constitucional Y Política), 2013, accessed October 8, 2021, https://digitalcommons​.law​.yale​.edu​/cgi​/viewcontent​.cgi​?article​=1123​&context​=yls​_sela. 63 Pablo Contreras, “Conventionality Control, International Deference, and National Discretion in the Inter-American Court of Human Rights Case Law,” Control de Convencionalidad, Deferencia Internacional y Discreción Nacional en la Jurisprudencia de la Corte

20  International human rights bodies contend that a distrust towards people and national institutions is being masked by “protection” of human rights.64 Others point to the critiques made by the constitutional tribunals and supreme courts disputing who has the last word on protecting human rights in Latin America.65 Arguments concerning the activism or performance of the ECHR and IACtHR have been framed in terms of legitimacy issues. The use of the notion of legitimacy is arguably based on the idea that IHRB have developed competences that do not stem from states consent. For those concerned with whether the IHRB are entitled to take on such competences (evolutionary interpretation, controlling democratic decisions, control of conventionality), states’ consent should be accompanied by other factors or justifications that support or restrict IHRB performance. States’ consent is seen as insufficient, and morality becomes relevant either to support IHRB performance or to argue in states’ favour. Arguments concerning IHRB legitimacy likewise touch upon aspects related to whether the authority of IHRB to protect human rights could be grounded on the principle of justice or the counter-majoritarian role of the judiciary against majorities. Concerns about the legitimacy of the IACtHR highlight the fact that scholars of international human rights and constitutional law have started applying a concept, and arguments, traditionally used to justify the authority of the national political or legal authorities.

2. Attempts to theorise the legitimacy of international judicial bodies The goal of this section is to map out the general understanding and current state of discourses on IHRB legitimacy. It provides information on general abstract models of legitimacy, but also on more specific approaches to the legitimacy of judicial bodies like the ECHR. Firstly, an enduring problem is that the legal scholarship that raises concerns on IHRB legitimacy is silent on the concept that it embraces, a concept that in itself can be considered slippery. It can refer to a problem of legality (consent of states), for example, even though legitimacy is a broader concept than that.66 As mentioned, the concept of legitimacy becomes relevant when the consent

Interamericana de Derechos Humanos 20, no. 2 (2014); Fabia Veçoso, “Between Human Rights Absolutism and Contextual History: Aspects of the Experience of the Inter American Court of Human Rights” (PhD diss., University of Sao Paulo, 2012), accessed August 10, 2021, https://teses.usp.br/teses/disponiveis/2/2135/tde-18022013-142609/publico/ Tese_Fabia_Fernandes_Carvalho_Vecoso_versao_simplificada.pdf. 64 Fabia Veçoso and Carlos Villagrán Sandoval, “A Human Rights’ Tale of Competing Narratives,” Direito e Práxis 8, no. 2 (2017): 1603–1651. 65 Veçoso and Villagrán, “A Human Rights’ Tale.” 66 Silje Langvatn and Theresa Squatrito, “Conceptualising and Measuring the Legitimacy of International Criminal Tribunals,” in The Legitimacy of International Criminal Tribunals, eds. Nobuo Hayashi and Cecilia Marcela Bailliet (Cambridge: Cambridge University Press, 2017); Cohen, Føllesdal, Grossman, and Ulfstein, “Legitimacy and International Courts: A Framework.”

International human rights bodies  21 of states is not considered a sufficient base for international institutions’—and more recently human rights judicial bodies’—exercise of authority.67 Therefore legitimacy may refer to extra-legal or non-legal considerations as justifications for judicial bodies’ expansive authority or, more specifically, the de facto competences they exert. Prior to introducing a definition of legitimacy, it is important to note that concerns about the legitimacy of IHRB link to those on the legitimacy of global governance institutions. Those similar interests rest on the aforementioned progress narrative that promotes the idea that the legal discipline, its structure and the authority of international institutions are continually evolving. That sense of progress means discussions on the legitimacy of global governance institutions and their adjudication are shaped by the parameters of analogy with domestic institutions and theories. In the international arena, the analogy is also present in the use of words related to governance rather than government. The work of Bodansky shows this parallelism. He argues, in fact, that the greater authority that international organisations have gained means legitimacy is not only a concern for domestic governments, which has long been a central focus of political theory.68 He says that the consensual nature of international law has tended to moot the issue of legitimacy in the field, but he also indicates that the evolution of international law and its institutions has triggered the beginning of a debate.69 His work defines legitimacy as a matter of political authority that encompasses questions related to what gives some institutions the right to govern others, and why those subject to authority should obey. These are the same questions asked in discussions about domestic political theory, which Bodansky says are also relevant in the international arena.70 More specifically, the domestic analogy is also present when the narrative refers to the legitimacy problems of IHRB. As mentioned in the previous section, IHRB are presented as opposed to local democracies, echoing the traditional debate between constitutional tribunals and majoritarian democracies. In selecting the idea of the legitimacy of the IACtHR as a supraconstitutional and

67 Mattias Kumm, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis,” European Journal of International Law 15, no. 5 (2004); Johan Schaffer, “Legitimacy, Global Governance and Human Rights Institutions: Inverting the Puzzle,” in The Legitimacy, eds. Schaffer, Føllesdal, and Ulfstein. 68  Daniel Bodansky, “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?,” American Journal of International Law 93, no. 3 (1999), 596. 69 Lupu contends that despite the differences between national and international courts, it is possible to use “what scholars have learned about how national courts establish legitimacy in their strategic settings in order to better understand why doing so appears to be difficult for international courts in different settings.” Yonatan Lupu, “International Judicial Legitimacy: Lessons from National Courts,” Theoretical Inquiries in Law 14, no. 2 (2013): 434–457. 70 Daniel Bodansky, “Legitimacy,” in The Oxford Handbook of International Environmental Law, eds. Daniel Bodansky, Jutta Brunnée Brunnée, and Ellen Heyand (Oxford: Oxford University Press, 2008).

22  International human rights bodies democracy builder, the book will focus on a normative rather than on a sociological approach.71

2.1. Normative legitimacy72 The concept refers to the existence of the normative reasons that legitimate international tribunals’ authority. Within the liberal tradition, the function of normative legitimacy indicates when a (political) institution is entitled to exercise power. In other words, it refers to the right to rule.73 Scholars discuss what the normative grounds are for the legitimacy of IHRB, or the reasons why citizens or states should obey. These two questions each have a different focus. While the first focuses on the institutions, the second focuses on the subjects who have to comply with a tribunal’s decisions. Some considerations and concerns about normative legitimacy can be split into source, process and results-oriented factors. For source-based justification, states’ consent is the traditional way to exercise authority over the bound subject.74 Process-based justification implies that procedures should be fair, to provide equal opportunities to each party involved in a case. It also refers to the open-mindedness of judges as a criterion to measure a tribunal’s legitimacy. Results-oriented justification is linked to enquiries about the quality of international tribunals’ performance. This can be assessed through standards of efficiency, in terms of rapidness, or problem-solving capacity on specific issues of relevant competence (human rights or investment, for example). The performance of a court is also assessed beyond case law; it is asked whether it sets precedents or provides criteria

71 Sociological legitimacy refers to the perceptions or beliefs that an institution has a right to rule. This implies that legitimacy is subject to empirical analysis, to measuring the degree or type of support an institution enjoys. In general terms, the sociological legitimacy of international law is focused on this question: On what basis do subjects of international law think that an institution or person has the right to rule. See the work of Madsen, “Sociological Approaches.” 72 The concept of normative legitimacy could include aspects of sociological legitimacy. “The Concept of Legitimacy in International Law,” in Legitimacy in International, eds. Rudiger Wolfrum and Volker Roben (Dordrecht: Springer, 2008). Indeed, Bodansky states: “On the one hand, to some degree descriptive legitimacy seems conceptually parasitic on normative legitimacy, since beliefs about legitimacy are usually beliefs about whether an institution, as a normative matter, has a right to rule. People justify, criticize, and persuade on the basis that an institution is actually legitimate (or illegitimate). On the other hand, some argue the other way around, that normative legitimacy depends on descriptive legitimacy.” Daniel Bodansky, “Legitimacy in International Law and International Relations.” in Interdisciplinary Perspectives on International Law and International Relations, eds. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2012), 327. 73 Laura Valentini, “Assessing the Global Order: Justice, Legitimacy, or Political Justice?” Critical Review of International Social and Political Philosophy 15, no. 5 (2012): 593–612. 74 Grossman, Cohen, Føllesdal, and Ulfstein, The Legitimacy.

International human rights bodies  23 for interpretation, or whether it has helped promote the goals of the international organisations it serves.75 2.1.1. STANDARDS OF NORMATIVE LEGITIMACY

Scholars working on normative legitimacy link the concept with the principles of justice or democracy, or a combination of both, or with other criteria. Indeed, legitimacy is never an “on/off” switch, but it is a product of many different factors.76 Non-monistic, mixed conceptions of legitimacy thus discard the idea that legitimacy rests on one exclusive component; they assume that a framework of legitimacy should be based on a combination of characteristics. For example, Buchanan and Keohane’s complex standard of legitimacy provides criteria applicable to global governance institutions. To be legitimate, institutions should meet criteria such as having a minimum of moral acceptability, demonstrating comparative benefit, supporting institutional integrity and reflecting a degree of accountability to relevant audiences like NGOs and other epistemic agents. For Buchanan and Kehoane, international institutions should not necessarily be perfectly democratic to be legitimate.77 Grossman too has constructed a complex standard of legitimacy for human rights tribunals. The criteria she proposes are procedural fairness, a substantive standard of justice that implies an effective securing of certain core human rights and effective participation of stakeholders in judicial law or policymaking.78 Whereas monistic conceptions of legitimacy do not fulfil all the angles of the notion of legitimacy, it is necessary to indicate the link between them and other principles, like justice or democracy. Firstly, legitimacy as justice is connected to the criterion of outcomes. The service conception developed by Raz is one example; it points out that the crucial factor for an authority’s legitimacy is that it can demonstrate its capacity to serve those governed. Some scholars argue that the criteria of justice as a legitimating factor imply defining it in terms of minimal moral acceptability.79 This implies a respect for a minimum core of human rights, but the meaning of justice also depends on the court and its context.80 One could claim that the minimum core of human rights admissible for other international tribunals does not necessarily apply to IHRB, but that achieving just outcomes

75 Grossman, Cohen, Føllesdal, and Ulfstein. 76 Yuval Shany, “Stronger Together? Legitimacy and Effectiveness of International Courts as Mutually Reinforcing or Undermining Notions,” in The Legitimacy, eds. Grossman, Cohen, Føllesdal, and Ulfstein, 354–371. 77 Allen Buchanan and Robert O. Keohane, “The Legitimacy of Global Governance Institutions,” Ethics & International Affairs 20, no. 4 (2006). 78  Nienke Grossman, “The Normative Legitimacy of International Courts,” Temple Law Review 86, no. 1 (2013): 61–105. 79 J. Raz, The Morality of Freedom (Oxford: Oxford University Press, 1988). 80 Grossman, “The Normative Legitimacy.” It is important to indicate that in the mainstream literature, a decision can be just but illegal, or just but illegitimate.

24  International human rights bodies is what matters—even if this means disregarding law in the decision-making process. Just outcomes entail the expansion of human rights protection, in particular the human rights of the most vulnerable.81 With regard to the democratic approach to legitimacy, the connection between the two concepts stems from several debates about the legitimacy deficits of international governance institutions due to lack of democratic accountability. Democratic legitimacy has been studied from two perspectives.82 The first posits a principle of transnational democracy as rooting the authority and legitimacy of international tribunals.83 Political scientists and legal scholars have worked towards the existence of a transnational vein of the democratic principle since the early 1990s. This requires insisting on the existence of a transnational demos, whether one takes an ideal or a non-ideal approach.84 Indeed, a variety of shortand long-term institutional prescriptions, including international courts, transnational parliaments and multi-level governance architecture, can enable individuals to participate in global decision-making. Other ideal proposals focus on the existence of a hierarchical system of state-like institutions at the global level. The second perspective focuses on a notion of democracy that remains within the nation-state, and thus denies its transnational nature. They embrace the idea that local democracies, through their institutions, provide indirect demo­cratic grounds for the authority of international tribunals. Yet they still call for these tribunals to have more transparency, accountability and participation.85 More specifically, describing the principle of democracy when it comes to the democratic legitimacy of the IHRB involves two facets. Firstly, scholars should build arguments on the link between democracy and human rights that incorporate the two concepts’ co-originality.86 Secondly, discussing the link between the two concepts implies that transnational democrats or state-centric democrats must build arguments to sustain the idea that international human rights regimes reinforce national democracies, especially recently established (or re-established) democracies.87 This means describing the type of rights that are linked directly to democracy, or in what sense an IHRB promotes democracy.

81 Molly Land, “Justice as Legitimacy in the European Court of Human Rights,” in The Legitimacy, eds. Grossman, Cohen, Føllesdal, and Ulfstein. 82 Another aspect to discuss is the concept of democracy in itself. Chapters 5 and 6 develop an analysis of the notion of democracy adopted by Latin American legal scholars. 83 Armin von Bogdandy and Ingo Venzke, In Whose Name? (Oxford: Oxford University Press, 2014). 84 David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995); Johan Schaffer, Democrats without Borders: A Critique of Transnational Democracy (PhD diss., University of Gothenburg, 2008). 85 Cristina Lafont, “Can Democracy Go Global?,” Ethics & Global Politics 3, no. 1 (2010). 86 Johan Schaffer, “The Co-Originality of Human Rights and Democracy in an International Order,” International Theory 7, no. 1 (2015). 87 Samantha Besson, “The Legitimate Authority of International Human Rights: On the Reciprocal Legitimation of Domestic and International Human Rights,” in The Legitimacy, eds.

International human rights bodies  25

3. Two normative approaches to IHRB legitimacy This section pays special attention to approaches concerning the ECHR and other general attempts to theorise on the (democratic) legitimacy of adjudication. One aspect is related to the way in which scholars refute that lack of democratic legitimacy of IHRB. As will be analysed in Chapter 5, they build arguments of democratic legitimacy upon the idea that the IACtHR and IHRB share commonalities with local tribunals, more specifically with constitutional courts, which also face problems of democratic legitimacy before majorities in their local political communities. Concerns about democratic legitimacy may then reveal and validate the use of analogy as a device to portray a narrative of progress among international institutions, or eventually self-validate the legal scholars involved in the ongoing debates around legitimacy. A second aspect is related to the consequences of affirming that IHRB legitimacy is based or not based on democracy. It implies debating the meaning of democracy, and whether a transnational or local conception of it is at stake. Another consequence is related to the democratisation outcomes that IHRB provide, as well as the limits IHRB should set in order to respect the principle of democracy in the local arena.88 In order to respond to or analyse the tenets or implications that support claims of democratic legitimacy, one must explore current theories within mainstream scholarship on the topic. In general, the account of the concerns about IHRB democratic legitimacy that I provide here will ground the deeper analysis of the discourses around the IACtHR’s democratic legitimacy.

3.1. The state-centric model of legitimacy This stream will be named the “state-centric perspective” because scholars working in this field recognise the primary importance of local legal orders in protecting human rights, before the role of the European System of Human Rights or other IHRB.89 To illustrate, Føllesdal refers to a basic global structure in which states play prominent roles with their own basic domestic structures. Within this frame, international institutions serve important yet limited functions, like providing corrective checks on democratic legislatures, or compensatory mechanisms for an overall unjust set of international rules. 90

Schaffer, Føllesdal, and Ulfstein; “Human Rights and Democracy in a Global Context: Decoupling and Recoupling,” Ethics & Global Politics 4, no. 1 (2011). 88 See Chapters 5 and 6. 89 Steven Wheatley, “On the Legitimate Authority of International Human Rights Bodies,” in The Legitimacy, eds. Schaffer, Føllesdal, and Ulfstein; Besson, “The Legitimate Authority of International Human Rights: On the Reciprocal Legitimation of Domestic and International Human Rights”; Başak Çalı, “The Legitimacy of International Interpretive Authorities for Human Rights Treaties: An Indirect-Instrumentalist Defence,” in The Legitimacy, eds. Schaffer, Føllesdal, and Ulfstein; Føllesdal, “The Legitimacy Deficits of the Human Rights Judiciary.” 90 Føllesdal, 348.

26  International human rights bodies The authors identified as representatives of the state-centric strand include Besson, Føllesdal, Weathley and Bellamy. In general, they do not call into question the way in which the progress narrative profiles the struggles the ECHR faces in terms of legitimacy. They agree that the ECHR is the outcome of a story of evolution and progress in the European context, that helps protect rights in Western liberal or “advanced democracies,” but also in the new democracies that were formerly part of the Communist bloc.91 The state-centric approach posits that liberal democracy has a direct or natural connection with the protection of human rights. Some, such as Besson, affirm that international human rights law legitimates national democracies and vice versa; indeed, she states that the mutual constitution of human rights and democracy at the national level is the first source of legitimacy for the judiciary at the international level.92 Also, authors like Føllesdal differentiate between advanced and weak democracies to justify whether the ECHR does or does not affect the principle of democracy. The state-centric scholars define democracy as the only legitimate or best form of domestic government. They have developed arguments that address the role that IHRB should ideally have before democracies. For republicans like Bellamy, institutions like judicial review, that is, non-majoritarian mechanisms, entail a risk of domination over people. For him, advocates of the argument that highlight the low degree of arbitrariness of the judiciary by emphasising their deliberative decision-making character and their subjection to rights-based judicial review overlook the fact that judicial review can encompass potential risks of arbitrary rule. Bellamy argues that focusing on the figure of judicial review means focusing on rights and judicial methods to resolve conflicts, and it prevents pursuing the ideal that political institutions should allow perpetual contestation about interests, rights and policies within the institutions that foster civic virtues. Yet, in his “political constitutionalism,” Bellamy argues that democracy as non-domination can only be realised where parliament is sovereign and cannot be overruled by a constitutional court; he has also argued that weak judicial review at the European level is compatible with this theoretical framework. In general, beyond differences in philosophical approach, these scholars all concur that international institutions are allowed to ensure that democracy is not

91 Indeed, Madsen summarises the sense of darkness attributed to the communist bloc, but also the sense of progress after the end of the Cold War: “The rapid drafting of the ECHR reflected a growing fear of, on the one hand, the rising power of the national Communist parties, and, on the other, Soviet imperial expansionism into Western Europe, notably in respect to Italy at the time of negotiation. Effectively, none of the Eastern European countries ratified the ECHR, and the subsequent development of the system was to happen in a club of Western European countries that, regardless of their different interests in the Convention, were like-minded when it came to the protection of liberal European democracy.” Mikael Rask Madsen, “From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics,” Law & Social Inquiry 32, no. 1 (2007): 137–159. 92 Samantha Besson, “Subsidiarity in International Human Rights Law—What Is Subsidiary about Human Rights?,” The American Journal of Jurisprudence 61, no. 1 (2016): 69–107.

International human rights bodies  27 interrupted or weakened.93 Overall, one could say that the state-centric approach has drawn arguments related to the democratic source of IHRB, the democratic outcomes of IHRB and the margin of appreciation as a self-restraining device. State-centric approaches embrace indirect democratic grounds stemming from an ideal conceptualisation of international society geared towards an association of (liberal) democratic states. In a nutshell, for this approach, the main source of legitimacy of IHRB or the ECHR is the consent of “democratic” states.94 On the one hand, they describe democracy as “a political system involving regular elections for the legislature and executive branches between competing parties on the basis of one person, one vote and majoritarian rules.”95 On the other hand, they deny any direct democratic grounds for IHRB (a principle of transnational democracy). Yet they do not reject the possibility of promoting certain principles of accountability and transparency in the decision-making process of the IHRB, or in the appointment of the judiciary. To illustrate, for Bellamy, who defends a neo-republican approach, the IHRB ideally find legitimacy through an association of democratic states.96 Wheatley’s work is also grounded on an indirect democratic source. He has developed arguments by which the political (democratic) authority of IHRB stems from the fact that democratic states’ function is to ensure that discussions around human rights are undertaken in line with the values of justice and public reason. Public reason can stem from consensus among local political communities that informs consensus among democratic states and the debates within them throughout the adoption of international treaties, as well as from the claims and counter-claims of victims and states regarding violations of human rights before judicial tribunals.97 In the view of the state-centric scholars, IHRB and the ECHR promote demo­ cratic outcomes either in advanced or weak democracies. In the liberal contractualism tradition, the outcome of a decision, like the enhancement of democracy through the protection of basic human rights, is what makes states (and citizens) comply with case law. Contingent compliers follow the decision of a tribunal is the quality of its decisions or proceedings—that is, how well they meet the

93 Wheatley, The Democratic Legitimacy of International Law, 228. 94 A factual element that supports the arguments of such scholars working in the European arena is that Council of Europe membership can be reached only by democratic states. In that context, a democratic state refers to a form of procedural democracy that ensures civil and political rights. 95 Richard Bellamy, “The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the Hirst Case,” in The Legitimacy, eds. Schaffer, Føllesdal, and Ulfstein; Andreas Føllesdal, “Much Ado About Nothing?: International Judicial Review of Human Rights in Well-Functioning Democracies,” in The Legitimacy, eds. Schaffer, Føllesdal, and Ulfstein. 96 Bellamy, “The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the Hirst Case.” 97 Wheatley, “On the Legitimate Authority of International Human Rights Bodies,” 108.

28  International human rights bodies appropriate principles of legitimacy.98 Føllesdal uses the concept of service (as developed by Raz) as the key definition to justify the moral reasons that support a tribunal’s decisions. He introduces some reasons for which subjects (states and individuals) should comply with the decisions of a tribunal. For instance, the judicial authority is less likely to be tainted by bias or pressures, whereas direct individual action could be self-defeating; therefore, it is better to embrace an indirect strategy guided by authority. Applying the notion of service to the ECHR, Føllesdal argues that the judiciary may be impartial among parties of a conflict, and is better positioned to spot mistaken beliefs or assumptions around the protection of human rights.99 Bellamy explains the reasons for which democratic states would agree to IHRC from a different perspective—that of republicanism. He recalls the argument according to which mature democracies should accept ECHR decisions as a means to strengthen democracy in less advanced democracies, and also the utility of IHRC in promoting the stability of democratic governments against non-democratic opponents. By the same token, he addresses the protection of minorities and non-citizens who do not participate in the political system with a motive to enhance IHRC. Finally, he refers to the idea of democratic states’ fallibility, which can be corrected by the international judiciary.100 The authors mentioned here also refer to the margin of appreciation as the solution to restraining the jurisdiction of IHRB. Various arguments support this principle of interpretation that grants a state the authority, within some limits, to determine whether the human rights recognised in the European Convention are violated in a particular case.101 In all cases, the subjects involved in a relationship connected to the margin of appreciation are the states and the international judiciary. This structure reveals that for the state-centric perspective, IHRB legitimacy does not require individuals—they are excluded from that relation that grounds the legitimacy of the ECHR. From a republican perspective, some scholars assert that the margin of appreciation balances the risk of domination and threat to democracy that the ECHR and IHRB may present to local governments. The concept must, however, operate under the model of weak judicial review and take into account the existence or not of consensus about the protection of human rights. According to Bellamy, ECHR decisions fit into that category because the ECHR does not have the

  98 Andreas Føllesdal, “The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights,” Journal of Social Philosophy 40, no. 4 (2009).   99 Andreas Føllesdal, “Much Ado about Nothing?” 272–299; “The Legitimacy Deficits of the Human Rights Judiciary.” 100 Bellamy, The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the Hirst Case.” 101 Andreas Føllesdal, “Appreciating the Margin of Appreciation,” in Human Rights: Moral or Political?, ed. Adam Etinson (Oxford: Oxford University Press, 2018).

International human rights bodies  29 power to invalidate or overrule parliamentary decisions.102 In that sense, judicial review or a strict margin of appreciation operates in two cases: IHRB can protect the rights of non-citizens and minorities who lack adequate voice in a national political system and, because every democratic state is fallible, an “outsider’s perspective” on democratic decision-making processes can be valuable.103 In the latter case, Bellamy indicates that IHRB can help to look at how other legal systems may provide policies that challenge local prejudices and assumptions, and can thus “help guard against precipitate over reactions to a shocking incident, such as a terrorist bomb or the abduction of a child, and point to the longer-term adverse consequences of over-hasty legislation.”104 From a liberal contractualism approach, Føllesdal also develops the idea that the margin of appreciation is a tool to promote the legitimacy of international courts as well as promote democracy at the local level. He refers to the argument of the international judiciary’s domination as a reason to promote the margin of appreciation and protect decision-making processes at the local level (in accor­ dance with the principle of subsidiarity). Føllesdal believes that deference to the state and local political communities should be the rule if it favours democracy and democratic decision-making processes.105 However, he also refers to the idea of protecting minorities as the criterion to ground the Court’s judicial review, and that limits the applicability of the margin of appreciation. According to his viewpoint, even the most mature democracies risk harming the rights of minorities. For example, the standard mechanisms of democracy, which work for majo­ rities, are not necessarily useful for a minority. Indeed, a minority may never get the attention of political parties that look for political support.106 All these approaches share the idea that the “judicial review” or ECHR competences must be minimal,107 in order to preserve the democratic principle and the self-governance of local political communities, but also to correct their failures. The perspectives of state-centric scholars also rely on the idea that the justiciability of human rights refers strictly to civil and political rights, rather than social rights.108 This understanding of the rights that are protected under the judicial matches with the way in which they conceive of human rights and democracy, that is to say, in terms of equality or individual interests that crystallise towards democratic procedures. Within that picture, the importance of IHRB and the

102 Bellamy, “The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the European Convention on Human Rights.” 103 Bellamy. 104 Bellamy, “The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the Hirst Case,” 257. 105 Føllesdal, “Appreciating the Margin of Appreciation.” 106 Føllesdal, “Much Ado About Nothing?;” “Appreciating the Margin of Appreciation.” 107 Contra: George Letsas, “Appreciating the Margin of Appreciation: The Margin of Appreciation Revisited: A Response to Føllesdal,” in Etinson, Human Rights: Moral or Political?, 295–310. 108 At most, they admit a broad interpretation of social rights that includes social dimensions of civil and political rights.

30  International human rights bodies ECHR manifests in their capacity to articulate the minimum content or consensus of human rights protection in a collective association of democratic orders.109

3.2. The constitutional approach to the legitimacy of international tribunals The constitutional perspective is informed by different fields of international legal scholarship. Global constitutionalist, global administrativist or constitutional lawyers are part of this approach, sharing commonalities as well as differences. In general, global constitutionalists’ arguments rest on the idea of an evolving international arena and that international institutions, including human right bodies, exert an authority that is autonomous from the consent of states. In this strand, scholars put forward the idea that these courts fulfil several roles that affect international and national authority in general. To illustrate, they maintain that courts perform functions that involve exercising constitutional, enforcement, and administrative review; stabilising normative expectations and legitimating the exercise of public authority; improving state compliance with primary legal norms; engaging in judicial lawmaking to clarify or expand substantive obligations; and enhancing the legitimacy of international norms and institutions, including of ICs themselves.110 Global constitutionalists thus embrace the idea that international courts are able to advance democratic values and shape democratic practices beyond the state. Indeed, from them a transnational democratic principle grounds the autonomy of international institutions. They do not promote the existence of a global state, however, since the existence of democracy is not necessarily restricted to the boundaries of a territory. Here it is possible to identify two streams regarding the idea of democracy and adjudication in the international arena. One focuses on a non-ideal model of transnational democracy, while the other promotes an ideal model. Despite their differences, even when neither totally discard the role of the state or the relevance of local democracy, they are more preoccupied with justifying the authority of international courts. They then adopt top-down perspectives. The first perspective advances the initial discussions around the principle of transnational democracy in the late 1990s and the beginning of this century.111 This perspective seeks democratic values and practices that can be carried throughout certain conditions in the international legal arena, rather than the

109 Wheatley, “On the Legitimate,” 113. 110 Jonathan Kuyper and Theresa Squatrito, “International Courts and Global Democratic Values: Participation, Accountability, and Justification,” 43, no. 1 (2017): 161. Quoting Laurence Helfer, ‘The effectiveness of international adjudicators’, in Romano, Alter, and Shany (eds), The Oxford Handbook: 464. 111 Held, Democracy and the Global Order.

International human rights bodies  31 ideal model of democracy beyond states. In this non-ideal model, the authors depart from the premise that democracy is largely connected with certain procedural principles that have to be present at different levels or stages of the constituency of the international courts as well as of their decision-making processes. Kuyper and Squatrito work with a non-ideal model of democracy beyond states and present some general standards of democracy applicable to different types of international tribunal. They focus on internal elements that help demo­ cratise international tribunals’ internal decision-making procedures. They argue that international tribunals can foster certain democratic principles at the international level, as well as equal participation, accountability and public justification, by engendering possibilities for individuals to participate in how transnational authority is exercised. For example, citizens affected by the authority of international tribunals should have the opportunity to engage with how this authority is wielded and possess the power to judge whether tribunals and courts have fulfilled their responsibilities. Kuyper and Squatrito also refer to the idea of public justification for the discussions on a court’s decision-making process. They assert that the reasoning and scope of judicial decisions catalyse public discussion. In their view, making decisions public and explicating the reasoning for them helps democratise the decision-making process and take into account the individuals affected by a decision.112 The second approach is based on the idea of an ideal understanding of the principle of democracy beyond the state.113 Bogdandy and Venzke support the democratic grounds for the authority of international tribunals. They develop a general theory that attempts to be applicable to all international courts and tribunals, which they argue exert a public authority and are agents of global governance. To summarise, they say the exercise of public authority involves the adoption of an act that affects the freedom of others in pursuance of a common interest.114 In general, the idea of public authority is an attempt to argue in favour of international law’s distinct nature. This concept attempts to overcome the idea of anarchy and co-existence based on the consent of states that rules the profile of international law (the private law paradigm). It excludes the horizontal phenomena of public international law and is grounded on international law’s impact on the freedom of other actors such as states and individuals. Its conceptualisation deviates from the traditional idea of physical coercion and overwhelming force, and involves a broader definition of authority, which includes softer mechanisms such as creating compliance through shaping the terms of international discourse

112 Kuyper and Squatrito, “International Courts and Global Democratic Values.” 113 See the work of Ahlhaus who argues in favour of a “transnational conception of the polity.” Svenja Ahlhaus, “The Democratic Paradox of International Human Rights Courts: A Kantian Solution?” in Kantian Theory and Human Rights, eds. Andreas Føllesdal and Reidar Maliks (New York: Routledge, 2013), 113–129. 114 Bogdandy and Venzke, In Whose Name?

32  International human rights bodies and influencing the knowledge and perceptions of subjects of international law.115 In embracing public authority, these authors reject the idea that courts are instruments of parties that justify their practice through states’ consent and community values, as institutions that work in the interest of specific legal regimes. Instead, they suggest a new paradigm for the study of international courts that sees them as multifunctional actors exercising public authority.116 For Bogdandy and Venze, the fact that international tribunals exert public authority requires elaborating democratic justification. They argue the idea that democracy beyond the state entails the following core elements: citizenship, representation, transparency, deliberation, participation, responsiveness and control.117 Although they recognise the limitations of a democratic theory beyond states, they consider it still possible to develop arguments in that direction.118 Firstly, they support the idea of a transnational citizenship grounding the authority of international tribunals. According to them, its existence does not depend on a legally defined group under positive law or a right to vote at the international level. Instead, they embrace an open approach and aspire more broadly to develop mechanisms of effective political inclusion at an international or transnational level that secure representation, transparency, participation, deliberation and responsiveness, as well as the relevant control mechanisms. Following this, Venzke and Bogdandy develop three manifestations of the democratic principle in the adjudication field that involve inclusion in a broad sense.119 These are the role of deliberative bodies in the selection of judges, making sure courts proceed “in a transparent, deliberative and participatory manner, and embed themselves into relevant publics,” and that “the democratic principle provides clues as to what judges should say” (in other words, democratic content). In terms of this latter, the authors highlight the idea that courts control and legitimate other institutions, and must therefore calibrate their authority towards the level of scrutiny of the judicial review. That premise is their departure point for discussing the relevance of the margin of appreciation and potential cases that involve weak judicial review or strong scrutiny.120

115 Armin von Bogdandy, Matthias Goldmann, and Ingo Venzke, “From Public International to International Public Law: Translating World Public Opinion into International Public Authority,” European Journal of International Law 28, no. 1 (2017): 140–145. 116 They distinguish their approach from transnational constitutionalism, transnational legal process and international institutionalism. The proposal of “international public law” instead pretends that all the possible shortcomings or flaws from those approaches are overcome. Bogdandy, Goldman and Venzke, “From Public International”, 131–140. 117 The authors’ departure point here is the European Union Treaty. They believe the principles it recognises are general criteria for a wider discussion on the democratic basis for international adjudication. Bogdandy and Venzke, In Whose Name? 118 They reject embracing the concept of accountability instead of democracy, but hold that it has not proved possible to truly break away from the concept of democracy and establish that of accountability as autonomous. Bogdandy and Venzke. 119 This relates to the idea that inclusion goes beyond the right to vote. 120 Bogdandy and Venzke.

International human rights bodies  33 The judiciary’s role as they describe it connects with the idea of proliferating international institutions. They qualify courts as actors of global governance whose legitimacy should be justified through a democracy-oriented perspective, and conclude that an international judiciary should be understood, interpreted and developed with dual reference to peoples organised by states and to supplementary forms of transnational or cosmopolitan citizenship. They argue that in spite of the difficulties of a democratic approach, it still offers a viable basis for theorising and developing the democratic legitimation of international courts today.

4. Conclusion As mentioned at the beginning of this chapter, presenting the current state of discourses on the legitimacy of the IACtHR had as purpose to serve as a departure point for building a critique of the current concerns regarding its legitimacy. While describing the two normative approaches to the legitimacy of the IHRB, it is possible to highlight some similarities rather than conflicts between the state-centric and the constitutional perspectives. They both assume that IHRB are necessary and natural agents that promote human rights and democracy among mature and weak democratic national orders. These discourses on the legitimacy of IHRB mirror the mindset of lawyers, political scientists and philosophers who embrace a vision of the current international law as proof of progress and advancement. Perhaps, the difference between the scholars working with these approaches is one of degree in the use of legal, moral and philosophical arguments to support the understanding of the legitimacy of IHRB. On the one hand, the state-centric perspective supports a horizontal view about the relationship between the States and IHRB that moderates the activism and expansion of competencies of IHRB. On the other hand, the constitutional perspective provides strong support to the activism of IHRB and seeks normative arguments to portray them as a legitimate vertical authority. However, they both leave untouched the presumptions that help describe the current stage and institutionalisation of IHRB as progressive, transformative of human rights and democracy in the world. In doing so, these approaches discard some relevant and fundamental questions about the false contingency of the concept of human rights and the nature of the concept of democracy that they have embraced while discussing the legitimacy of IHRB. Moreover, while discussing the normative legitimacy of IHRB, the two approaches engage with a vertical understanding of the use of human rights where the judiciary and its performance is what matters rather than ordinary people and their use of human rights for struggles from the grassroots.121 In brief terms, these were the current approaches to international tribunals’ legitimacy. This general theorisation around the legitimacy of international

121 For an in-depth critique, see Chapters 5 and 6.

34  International human rights bodies tribunals has been absorbed by Latin American legal thinking. As explained in the following chapters, some recent publications on the IACtHR profile it in terms of public authority and argue that it exerts a transformative power. The Latin American legal scholars working with the legitimacy of the IACtHR combine elements from the approaches that have been introduced here, but the former also has its own stamp that will be presented more in-depth in Chapters 3 and 4. In the next chapter, the theoretical perspective will be introduced that constitutes the grounds of the critique in this book.

2

Ideology and self-validation Critical legal theory

Introduction Chapter 1 introduced a state-of-the-art way of framing the legitimacy of international human rights bodies (IHRB) as objects of study. Arguably, as a general rule, the narratives of Latin American legal scholars working on international human rights create and reproduce a similar understanding of the role of Inter American Court of Human Rights (IACtHR) and its legitimacy.1 As Chapters 3 and 4 will show, the Inter-American Human Rights System does not scape this mainstream approach to studying the legitimacy of international human rights tribunals. The problem is that this mainstream perspective remains unchallenged, although it is possible to identify a growing criticism to the discourses on the legitimacy of the European Convention on Human Rights (ECHR) and the IACtHR. At the most, mainstream legal scholars will be preoccupied with finding a solution to overcome the legitimacy problems of IHRB. They will be justifying the practices of international tribunals or trying to incorporate other legal strategies to modulate or self-restraint the practices of an international human rights tribunal. This way of approaching the issues of legitimacy can be defined as a problem-solving perspective. The latter takes the world as it is, with the prevailing institutions as the given framework for action; the problem-solving perspective aims to make those institutions deal effectively with particular issues, often by isolating or fixing limits around the issues to be dealt with.2 Against this background, this book aims to understand how the problem of legitimacy arrives as an issue of study and the arguments and theories involved in the notion of legitimacy of the IACtHR. In that vein, critical legal theory becomes a relevant theoretical framework that can help answer these enquiries. The critical legal theory finds its roots in the legacy of the Frankfurt School and its Western Marxian philosophy tradition born in the early 20th century. Some

1 This statement about the mainstream vein of scholars studying the IASHR does not imply overlooking the existence of other critical approaches to human rights: indigenous and Afrodescendant rights driven by legal scholars working with human rights in Latin America. 2 Robert W. Cox, Production, Power, and World Order: Social Forces in the Making of History, vol. 1, Power and Production (New York: Columbia Universty Press, 1987).

DOI: 10.4324/9781003200888-3

36  Ideology and self-validation of the key themes for this school were the critique of modernity and capitalist society, social emancipation and mass culture. Critical theory provides specific interpretations of central tenets of Marxism, such as the critique of ideology, reification and fetishisation, among others. The work of the members of the Frankfurt school such as Hokenheimmer, Adorno, Pollock and others is usually seen as a contribution to philosophy and social sciences, but not necessarily to the legal field. However, the intellectual work of other Frankfurt scholars such as Franz Neumann, Kirkerheimer and Marcuse is representative of the contributions of the Frankfurt School to legal theory in the 20th century. These scholars, exiled in the United States during the Second World War, joined the Office of Strategic Services (OSS) and wrote reports on war crimes, de-Nazification and post-war military government.3 In addition, Neumann contributed theoretically and legally to the build-up of the Nuremberg trials in 1945.4 Overall, the Frankfurt school and its legal variant seek the emancipation of human slavery and creation of a world that satisfies the needs of human beings. In that vein, the critical theory stands apart from the prevailing order and asks how we came to be governed by it. It tends to see that order as part of a whole and tries to understand how the parts and the whole have been created or the process of change.5 This legacy has influenced more recent critical approaches to international law, which stands in opposition to the mainstream approach and argues from the perspective of disposed and marginalised individuals. The term “critical legal theory” works as a wide umbrella for different critical projects and approaches to international law such as Third World Approaches to International Law (TWAIL), Feminist, critical race theory, Marxism, critical legal studies (CLS) and New Approaches to International Law (NAIL), among others.6 This umbrella concept contributes to understanding law as a discipline within a political and historical context. In that sense, critical theory helps discard the idea of law as an autonomous set of rules and unveil or deconstruct premises and legal concepts that seem to be transcendent immutabilities—like the concepts of democracy, legitimacy and the rule of law. Even when a path appears already paved—here, that of international human rights law in the Latin American context—critical theory helps us see that it is still possible to cast doubt on some of its grounds. This is a worthwhile exercise because it can enable the

3 Franz Neumann, Herbert Marcuse, Otto Kirchheimer, and Raffaele Laudani, Secret Reports on Nazi Germany: The Frankfurt School Contribution to the War Effort (Princeton, NJ: Princeton University Press, 2013). 4 David Kettler and Thomas Wheatland, Learning from Franz L. Neumann. Law, Theory, and the Brute Facts of Life (London: Anthem Press, 2019). 5 Cox, Production, Power, and World Order, 128–129. 6 Günter Frakenberg, Critical Theory in Max Planck Encyclopedia of Public International Law, accessed October 10, 2021, https://opil​-ouplaw​-com​.ezproxy​.uio​.no​/view​/10​.1093​/law​: epil​/9780199231690​/law​-9780199231690​-e693​?rskey​=hDlvpq​&result​=1​&prd​=MPIL.

Ideology and self-validation  37 discovery of things we have previously overlooked. As Orford has written, it is still possible to make visible things that are already visible.7 In Latin America, critical legal theory8 has influenced different contemporary legal fields such as constitutional law, sociology of law and philosophy of law, among other legal strands.9 Although this is a non-exhaustive list, it is possible to mention the work of some contemporary critical legal scholars in international law. For example, Latin American TWAIL legal scholars such as Eslava, Obregón and Urueña have highlighted the relationship between imperialism and the current form and content of international law. Eslava (Colombia)10 formulates a strategy of resistance and argues that in spite of the politicisation of international law, it is necessary to deal with it and establish how and where one should engage with it.11 For Eslava and Pahuja, the TWAIL project requires continual engagement with international law by taking into account the agonistic nature of its promises.12 This involves thinking about it not only as a normative project but also as a set of concrete practices that express themselves in the material world. In order to advance an agenda of resistance, TWAIL requires the adoption of a different methodology to study international law, that is, one that focuses on examining how international law unfolds on the “everyday” plane.13 The interest in sites and objects of the everyday, generally seen as unrelated to the lofty

 7 Anne Orford, “In Praise of Description,” Leiden Journal of International Law 25, no. 3 (2012): 618.   8 Social scientists in Latin America have also made important theoretical contributions to critical studies. Dependency theory was initially driven by the Argentinian Prebisch, who worked at the United Nations Economic Commission for Latin America (ECLA). According to this theory, the international economic system having an industrial centre dominates the agrarian periphery. Prebisch explained that Latin America’s underdevelopment was the product of an asymmetrical international system. He pointed out that a process of recurring loss in international trade was limiting the chances of growth for underdeveloped countries since they exported only agricultural products and raw material, not technology. Fernando Cardoso, “New Paths: Globalization in Historical Perspective,” Studies in Comparative International Development 44, no. 4 (2009).   9 Among Latin American legal scholars who embrace a critical legal perspective in the abovementioned legal fields are Alejandro Medici, (Argentina), Carlos Antonio Wolkmer (Brasil), Helena Alviar (Colombia), Oscar Guardiola (Colombia), Oscar Correa (Mexico), Ricardo Sanin Restrepo (Ecuador). 10 Luis Eslava, “Istanbul Vignettes: Observing the Everyday Operation of International Law,” London Review of International Law 2, no. 1 (2014); Local Space, Global Life: The Everyday Operation of International Law and Development (Cambridge: Cambridge University Press, 2015); Luis Eslava, Liliana Obregón, and Rene Urueña, “Imperialismo(s) Y Derecho(s) Internacionales: Ayer y Hoy,” in Imperialismo Y Derecho Internacional: Historia Y Legado: Capitulos Traducidos De Antony Anghie, Martti Koskenniemi, Y Anne Orford, eds. Luis Eslava, Liliana Obregón, and Rene Urueña (Bogotá: Editorial Siglo del Hombre, 2016). 11 Eslava, Luis, and Sundhya Pahuja. “Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law.” Verfassung Und Recht in Übersee 45, no. 2 (2012): 195-221. 12 Eslava and Pahuja, “Between Resistance,” 213. 13 Eslava and Pahuja, 213.

38  Ideology and self-validation international,14 contrasts with the traditional understanding of international law as a group of extraordinary events or as a superior thing in need of attention and study.15 In the same vein, in Mestizo International Law, Arnulf Becker Lorca (Chile) offers an alternative explanation of the rise of modern international law. He demon­strates that the non-Western states and lawyers have made use of the 19th-century classical thinking to defend better rules for governing international relations, appropriating the discourses of sovereignty and equality in order to contest justifications for unequal Western power.16 Obregón’s contribution to the history of international law from a third world view should also be mentioned. She explains that Latin American17 regionalism in international law finds its roots in a common creole legal consciousness in the region, highlighting how the 19th-century Latin American scholars identified themselves as descendants of Europeans (the centre) while also challenging the centre with notions of their regional uniqueness (as natives of America). According to her viewpoint, this legal consciousness as a nation- and region-building tool during the second half of the 19th century gave rise to the doctrine of non-intervention (the Calvo Doctrine), as well as to discussions of the existence of an American international law in the first half of the 20th century (during the 1950s).18 Equally, in the field of international human rights law, some legal scholars have engaged with the quintessential critique that CLS and NAIL have built to challenge the mainstream, that is, the flaw of indeterminacy of rules and legal practices. Namely, Veçoso has used the argument of the indeterminacy of language to critically analyse the case law of the IASHR in relation to the prohibition of amnesty laws in the Latin American context. Karen Engle is another scholar

14 Eslava, “Istanbul Vignettes.” The ethnographic perspective (everyday life) has grounded Eslava’s studies on the impact of international law on the decentralisation of nation states, that is, on how the international legal field promotes the idea that local governments are the spaces for overcoming problems of development. He studies illegal neighbourhoods in Bogotá, for example, and demonstrates that they have become sites in which the international, national and local norms challenge the concept or idea of local development. His work highlights how the existence of illegal neighbourhoods has prompted local governments to create strategies of intervention to legalise them, but that also change citizens’ perceptions of Bogotá and its laws. Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development. 15 Eslava, “Istanbul Vignettes,” 5. 16 Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (Cambridge: Cambridge University Press, 2014). 17 Obregón’s work refers to the use of term “Latin America” in the second half of the 19th century. She indicates that the lawyer Carlos Calvo helped to promote the notion of Latin America, as well as the use of the term in reference to the special characteristics of international law for the region. Liliana Obregón, “Between Civilisation and Barbarism: Creole Interventions in International Law,” Third World Quarterly 27, no. 5 (2006): 815. 18 Obregón, “Between Civilisation and Barbarism,” 815.

Ideology and self-validation  39 working with a critical perspective19 to the cultural configuration of the rights of indigenous and Afro-descendants in the universal as well as regional system of international human rights. In her critical work, she has paid special attention to the situation of Afro-Colombian communities and the constraints to their right to self-determination as a consequence of the turn to a cultural approach in the international human rights field.20 This book is theoretically situated in the critical legal arena. Namely, it combines some theoretical aspects of the field of CLS and legal Marxism. In that vein, the chapter intends to provide a general overview that situates the legal Marxist tradition in a broader alternative framework to the traditional approaches to international law. The second section provides to the reader reasons that explain why some of the tenets of legal Marxism and CLS (self-validation) are relevant for criticising the mainstream perspective on the IACtHR’s legitimacy. The book relies on the critique of ideology and false contingency to unveil the politics behind current legal discourses on its legitimacy driven by a group of legal scholars with constitutional law legal background.

1. Critical legal studies The approach to international law known as New Stream finds its roots in the 1977 Conference on Critical Legal Studies held at the University of Wisconsin (USA) by a group of left-wing law professors. A critical legal conference likewise took place in Britain in 1984, and similar groups started to work with CLS in France, Germany and other countries.21 The “New Stream” movement of international law, a subset of CLS and of US critical scholarship which also posits a critique of liberalism (a central tenet of CLS), incorporates normative philosophy, anthropology, politics and psychiatry too. The lawyers who label themselves New Stream are involved in a battle with those defined as mainstream.22 Some key New Stream authors are Koskenniemi, Duncan Kennedy and David Kennedy. The New Stream has advanced on four fronts. They argue that the logic of liberalism in international law is incoherent; that international legal discourse has a constrained structure; that international legal analysis is indeterminate; and that international law’s authority is self-validated.23 A major tenet in CLS tradition is

19 Karen Engle, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Durham, NC: Duke University Press, 2010). Her work is informed by the contributions of David Kennedy. 20 Engle, The Elusive Promise. Chapter 3 provides more information about critical legal approaches to human rights in Latin America. 21 Peter Fitzpatrick and Alan Hunt, Critical Legal Studies (Oxford: B. Blackwell, 1987), 2. 22 Deborah Z. Cass, “Navigating the Newstream: Recent Critical Scholarship in International Law,” Nordic Journal of International Law 1 (1984): 4. 23 China Miéville, Between Equal Rights: A Marxist Theory of International Law, vol. 6, Historical Materialism Book Series (Leiden: Brill, 2005), 48; Nigel Purvis, “Critical Legal Studies in Public International Law,” Harvard International Law Journal 32, no. 1 (1991): 81–127.

40  Ideology and self-validation that the abstractions of liberalism are contradictory.24 Firstly, international law promotes the dichotomy between sovereign will and world order. The liberal influence is present in the premise that sovereignty is the basic unit in the life of international law. The social order is just a consequence of a social contract among equal sovereigns. In that sense, there is no natural world order that exists prior to sovereigns’ will. Secondly, international law is plagued by subjective value. So for international law, moral truth and moral worth are not objective, but subjective.25 In general, these two assumptions mean that international law can be made only by equal sovereigns (as atomic components of international law). For mainstream scholars, states should be equal because there is no pre-existing objective morality; thus, they alone are the subjects and objects of international law. The world order is based on liberty, which enables sovereigns to act on grounds of consent but also allows them to act in a manner at odds with other sovereigns and their choices.26 If sovereignty can affect the liberty of others at any moment, international law has tried to find a way to harmonise states’ competing liberty. The solution provided is the principle of “rule of law,” whose core content is formal equality and equal treatment. This language is abstract and requires generality, that is, neutrality. Herein lies the contradiction: International liberalism cannot claim to resolve conflicts with rules of neutrality (objectivity) while supporting the subjectivity of sovereign states.27 To illustrate, the doctrine of jus cogens is defined as a nonconsensual rule whose derogation is not allowed under any type of circumstances. In that sense, a jus cogens norm binds states in spite of the possibility that they have not given their consent. This type of law violates the principle of subjectivity for which the international community has been established by states’ subjective consent.28 In Kennedy’s words, the incoherence of international law means the identity of sovereign states depends upon “their participation in an international society which is not compatible with that sovereign authority.”29 However, states “cannot be both internally absolute and externally social.”30 The second critique by the CLS tackles the structure of international law. These scholars maintain that legal reasoning is constrained by the ideological underpinnings and patterns of legal argument stemming from liberalism. It is

24 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument: Reissue with a New Epilogue (Cambridge: Cambridge University Press, 2005). 25 Purvis, “Critical Legal Studies,” 94. 26 Purvis, 95. 27 Shakira Bedoya Sanchez, The Politics of Order: A Critical Theorization of Selectivity in Relation to Icty’s Indictment Policy Practice (PhD diss., Albert-Ludwigs-Universität Freiburg, 2016), 92–93. 28 Bedoya Sanchez, The Politics of Order, 32. 29 David Kennedy, “Theses about International Law Discourse,” German Yearbook of International Law 23 (1980): 353–391. 30 Kennedy, “Theses about,” 361.

Ideology and self-validation  41 important to point out that CLS refers to liberal ideology in many ways. The ideological structure of liberalism in international law is present from the moment at which legal arguments are presented as neutral, promoting only liberty and procedural justice. It does not admit its image of political theory and rejects the idea that law is politics. By providing a neutral face, liberalism transmits no awareness of the political nature of its commitments. Yet CLS sees liberalism as doing more than just describing the structure of international relations.31 Liberalism refers to the principle of liberty as natural and as a core element that organises the international field, foreclosing the possibility of finding alternative explanations for the nature of international law. Indeed, the descriptive tone of the explanation of the mainstream approach to international law mixes the idea of what the world is with a normative affirmation that it “ought” to exist.32 It hides or rules out the possibility of defining liberty as a substantive goal that is different to states’ nature. Another structural critique refers to dichotomies in international law. Purvis writes that scholars from the New Stream tend to point out that international legal arguments are addressed in terms of oppositions. That is, the two distinctive positions within mainstream international legal thinking combine to accommodate consent with justice, objectivity with subjectivity. Kennedy shows how these two positions work with and against each other to generate an international legal system that appears complete and sustainable.33 In general, their arguments either promote normative ideas that are previous to state will or gather around the idea of state behaviour as the triggering force that supports obligations. The two patterns are exclusive and exhaustive, and they reject intermediate positions.34 Koskenniemi uses the terms “ascending” and “descending” to refer to these two ways of making claims about order and obligation in international law.35 The descending pattern privileges normativity over concreteness, using notions such as justice, common interest and ideas seen as superior and external to state will. The ascending pattern privileges concreteness over normativity, referring to state behaviour and implying that law’s impartiality is based on states’ acceptance of the rules. According to the ascending pattern, law becomes constraining because justification comes from normative ideas (natural or hierarchical); according to the descending perspective, the rules stem from states’ will or interest.36

31 Purvis, “Critical Legal Studies,” 100. 32 Purvis, 100. 33 David Kennedy, International Legal Structures (Baden-Baden: Nomos, 1987), 289. 34 Koskenniemi, From Apology to Utopia, 59. 35 Koskenniemi borrows the terms “ascending pattern” and “descending pattern” from Walter Ullman’s 1955 book Law and Politics in the Middle Ages. According to Koskenniemi, the ascending–descending dichotomy bears another dichotomy: deductivism–inductivism. Koskenniemi, 59. 36 Koskenniemi, 59.

42  Ideology and self-validation International law works to make the ascending and descending patterns compatible, in spite of the fact that the result is incoherent. Legal discourse oscillates permanently between the two positions while remaining open to the possibility of contention from the opposite argument. Koskenniemi exemplifies how the ascending pattern is thus rebuttable and vice versa: From the ascending perspective, the descending model falls into subjectivism as it cannot demonstrate the content of its aprioristic norms in a reliable manner (i.e. it is vulnerable to the objection of utopianism). From the descending perspective, the ascending model seems subjective as it privileges State will or interest over objectively binding norms (i.e. it is vulnerable to the charge of apologism).37 International law is in fact ruled by the logic of reversibility of the ascendant and descendant arguments; so it is essential that both projects are conserved—and the criterion of preference is therefore meaningless.38 Both forms of legal argumentation are valid in order to avoid the problems that apologism and utopianism support. These dichotomies form the deep structure of international law. They serve to justify its binding nature; in other words, they define what constitutes an international legal argument.39 The legal argument becomes a recurrent self-referential search for roots, authority and coherence. Its language and rhetoric can explain its flexibility and coherence without referring to the “object world” described by words or the “subject world” that created the language by setting aside the idea of agency.40 The third critique built by CLS is oriented towards the indeterminacy of international law. CLS makes evident how liberal legality aims to construct an exercise of determinate theorising, that is, to provide rules that solve a conflict by themselves. Against this background, CLS emphasises that the nature of legal discourse is indeterminate, so the rules alone cannot provide a solution. A radical indeterminacy means that international law can support any type of claim, or provide completely opposed answers to any legal inquiry.41 This reveals the

37 Koskenniemi, 60. 38 Koskenniemi, 506. 39 Purvis, “Critical Legal Studies,” 104. 40 David Kennedy, “Critical Theory, Structuralism and Contemporary Legal Scholarship,” New England Law Review 21, no. 2 (1985–1986): 209–290. 41 Bedoya Sanchez, The Politics of Order, 37; Jason A. Beckett, “Rebel without a Cause? Martti Koskenniemi and the Critical Legal Project,” German Law Journal 7, no. 12 (2006): 1052. As mentioned, doctrinal arguments can be linked to “descending interpretation” (a community perspective) or to an “ascending interpretation” (an autonomy approach). Jochen Von Bernstorff, “Sisyphus Was an International Lawyer: On Martti Koskenniemi’s ‘From Apology to Utopia’ and the Place of Law in International Politics,” German Law Journal 7, no. 12 (2006): 1015–1035.

Ideology and self-validation  43 non-achievable idea of correctness—the fact that it is not possible to find a correct semantic interpretation of a legal source (doctrine or jurisprudence) or legal rules. As Purvis says, there is no one a priori justification or outcome above others. As I have described, since each result is equally valid, it is “impossible to deduce implications from concepts, and consequently, abstractions cannot compel any decision.”42 It is impossible to maintain or settle a permanent position.43 Lawyers from both legal strands take intermediate positions that enable a mix of positivistic and naturalistic arguments, while failing to reflect on the contradictions inherent in them.44 The legal system is not only indeterminate at its core, but also in its applications. Indeed, the content and meaning of international legal doctrines are defined only in connection to concrete facts. International law cannot be detached from the usages of the jurists or lawyers. Therefore there are no areas free from decisionism; the politics of international law always involves a choice.45 Moreover, due to the existence of competing theories—the dichotomy—selecting one theory necessarily involves a political choice. Legal reasoning is thus an exercise of choosing between theories, rather than a process of logical determinacy.46 The fragmentation of international law is one example of indeterminacy. Koskenniemi and Leino have documented the way in which the International Criminal Tribunal for the former Yugoslavia (ICTY) assumes positions that diverge from those adopted by the International Court of Justice (ICJ).47 The Tádic case is an example of an ICTY decision that overruled the criteria built by the ICJ on the doctrine of effective control in the decision made in the case of Nicaragua v. United States of America. The ICJ considered that the United States was not responsible for the breaches of humanitarian law perpetrated by the contras. Financing, training and equipping them was not enough proof of its direct participation in the commission of unlawful acts. The ICJ found that even the general US control “over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that USA directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged” by Nicaragua. In contrast, in the Tádic decision, the ICTY considered that a state is internationally responsible for acts committed by its officials outside their remit or contrary to its orders. For the ICTY, the rule is that a “State must be held accountable for acts of its organs whether or not these organs

42 Purvis, 110. In the same way, regarding private adjudication, Duncan Kennedy asserts that “there is no metasystem that would, if only we could find it, key us into one mode or the other as circumstances ‘required’.” Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review 89, no. 8 (1976): 1775. 43 Purvis, “Critical Legal Studies,” 108; Koskenniemi, From Apology to Utopia. 44 Purvis, “Critical Legal Studies,” 107. 45 Koskenniemi, From Apology to Utopia, 596. 46 Purvis, “Critical Legal Studies,” 108. 47 Marti Koskenniemi and Päivi Leino, “Fragmentation of International Law? Postmodern Anxieties,” Leiden Journal of International Law 15, no. 3 (2002): 553–579.

44  Ideology and self-validation complied with instructions, if any, from the higher authorities.” The ICTY stated that the way in which it conceived of state responsibility was based on a realistic concept of accountability, which disregards legal formalities.48 One could argue that the ICTY did not overrule ICJ jurisprudence since the latter deals with state responsibility and the former with individual responsibility. Yet from the indeterminacy perspective, both versions, effective control and overall control, are “right.” Both positions are equally valid interpretative choices, since arguments favouring one position could equally be used to support the opposite.49 This is why a judicial decision is always a political choice. As shown, CLS has demonstrated that the nature of international law is incoherent, constrained and indeterminate. Yet it has authority because sovereign states engage with it to solve international controversies, as if its use makes a difference or as if it is determinate and coherent. That engagement can be explained by the fourth flaw of traditional approaches to international law, that is, the problem of self-validation. Namely, the authority of international law is self-validated towards mechanisms that secure compliance in spite of the fact that it lacks external coercion. Purvis describes two mechanisms of self-validation. The first can be explained through an anthropological approach, focusing on the way in which rules attain validation through ritual. That is, rules are valid because of their historical origins or attachment to deep cultural roots. An international institution can be validated through a democratic pedigree or goals of justice, for example. Mystification is another way to self-validate the discipline. International law is mystified when liberalism makes a political choice look like unquestionable, “natural” law or logical compulsion. The consequence is that sovereign states accept the authority of international law as if it were neutral, determinant and coherent.50 The above-mentioned four flaws bring to the forefront main CLS’s finding, that is, international law is politics. Also, pointing out the flaws of the mainstream approach to international law broaches the idea that profession is central to the discipline. CLS leaves behind the conception that international law is the abstraction of the international community of states, and embraces the premise that the subject of international law is the legal profession of international lawyers. Focusing on the legal profession implies adopting the idea that international legal rules (the object) are what the lawyers state (subjects). In tandem, those rules that constitute the law provide legitimacy and prestige to the lawyer who through the use of legal knowledge and language demonstrate the mastery of the field.51

48 Koskenniemi and Leino, “Fragmentation of International Law?” 49 Koskenniemi and Leino, 566. 50 Purvis, “Critical Legal Studies,” 112–113. 51 Gleider Hernández, “The Responsibility of the International Legal Academic,” in International Law as a Profession, eds. Jean D’ Aspremont, Tarcisio Gazzini, André Nollkaemper, and W.G. Werner (Cambridge: Cambridge University Press, 2017), 170.

Ideology and self-validation  45 In that sense, lawyers perform dynamics and practices flawed of self-validation and self-referentiality. The latter takes place throughout the construction of the legal rules and the rising of the image of the lawyer as master of legal language and technicalities. Namely, self-validation occurs because the image of the lawyers as engineers of social transformation does not sustain in any external or objective reason that can prove it. The problems of self-validation and self-referentiality lie in the fact the justification for that image of lawyers can only be found in the fact that lawyers are the creators of their own expertise.52 Overall, defining international law in terms of the legal profession is compelling for the lawyers. In the first place, this perspective implies recognising that the legal profession is empowered because the law is what lawyers state. The second consequence is that lawyers have to rethink about their selfimage.53 However, this exercise would require that they accept that law is not about the application of ready-made rules and to admit that the solution to juridical problems that lawyers provide are informed by “fields such as politics, social and economic casuistry which were formally delimited beyond the point at which legal argument is supposed to stop in order to remain “legal.”54

2. Legal Marxism Legal Marxism is another strand of the critical approaches to international law. Although Marx did not have a project about international law, legal Marxism has been built by later scholars. The Russian Revolution and the establishment of a Bolshevik government in Russia in 1917 did, however, prompt a debate about the nature of law and its role in a post-capitalist society. The Bolshevik approach to international law was inevitably framed according to the context, that is, the struggles of the 20th century.55 Legal Marxism, is usually linked to Soviet Union’s scholars such as Stucka and Korovin, followed by Pashukanis, Vyshinsky and Gregory Tunkin.56 Some scholars have suggested that Soviet theoretical approaches to international law

52 Anna Leander and Tanja Aalberts, “The Co-Constitution of Legal Expertise and International Security,” Leiden Journal of International Law 26, no. 4 (2013): 783–792. 53 Martti Koskenniemi, The Politics of International Law (Oxford: Hart Publishing, 2011), 62. 54 Koskenniemi, The Politics of International Law, 62. 55 Bianchi shows that in the West, Soviet theories of international law are usually portrayed purely as an example of extreme positivism, but this reflects Western scholars’ limited knowledge of Soviet legal theories. Andrea Bianchi, International Law Theories: Different Ways of Thinking about International Law (Oxford: Oxford University Press, 2016), 75. Bowring claims that Soviet international law is considered either a matter of the past, or a discipline driven by bitter enemies. Bill Bowring, “Positivism versus Self-Determination: The Contradictions of Soviet International Law,” in International Law on the Left: Re-Examining Marxist Legacies, ed. Susan Marks (Cambridge: Cambridge University Press, 2008). 56 Taylor names these scholars as representatives of the Soviet approach to international law. Equally, this author situates this group as part of a broader Russian tradition to International law prior to the revolution. Owen Taylor, International Law and Revolution (PhD diss.,

46  Ideology and self-validation were subservient to the Soviet Union’s foreign policy in relation to the West.57 Yet one could argue that Soviet approaches have certain common features with Western thought. Indeed, Müllerson describes the Soviet approach as resting on elements of legal positivism, like the premise that norms of international law may stem from the states’ will but also from customary law.58 The end of the Cold War contributed to the idea that legal Marxism, or more concretely, the Soviet approach to international law, was an outdated strand. Against this background, legal Marxism has overcome the arguments that dismiss its value for the legal discipline in current times—mainly because the critique of Marxism to capitalism continues being relevant in a world of unrivalled capitalism. The end of the 1990s and the beginning of the 21st century saw a resurgence in Marxist scholarship on international law that detaches from orthodox Marxism and provides new insights into the Marxist legacy. Indeed, the work of Pasukanis who wrote the first comprehensive Marxist theory of law (including international law) has received renewed attention in our current times.59 Pashukanis is relevant here because he built a commodity form theory of law that offers essential insights into a theory of the legal form itself from a Marxist viewpoint. For Pashukanis, the form of international law was informed by the struggles of imperialism. In that sense, the real historical content of international law was the struggle between capitalist states, resting on the idea that the bourgeoisie exercises domination over the proletariat and colonised countries.60 Currently, it is possible to identify two main strands in the field of legal Marxism. The first strand is of the form of law, while the second strand of scholars criticises some of the international law’s substance. Miéville represents the first strand of legal Marxism. His work is linked to Pashukanis’ argument that form is the only thing that matters. His work and that of Miéville also allow reflection on the limits of legal praxis based on the legal form in itself, or even on the possibilities of revolution within the legal form.61 In 2005, in China, Miéville published a book that engages with the contributions of Pashukanis to legal theory. Miéville argues that Pashukanis’ theory could help deepen the discussion of whether international law is “real” law. In general, he attempts to go beyond Pashukanis’ account of the structural relationship between imperialism and international law, arguing that without violence there could be no inter-

SOAS, University of London), 108, accessed October 14, 2021, http://eprints​.soas​.ac​.uk​/ id​/eprint​/20343. 57 John Quigley, “The New Soviet Approach to International Law,” Harvard International Law Club Journal 7, no. 1–2 (1965–1966): 1–32. 58 R. A. Müllerson, “Sources of International Law: New Tendencies in Soviet Thinking,” The American Journal of International Law 83, no. 3 (1989): 494–512. 59 Evgeny Pashukanis, The General Theory of Law and Marxism (New Brunswick: Transaction Publishers, 2002). 60  Evgeny Bronislavovich Pashukanis, International Law (Pashukanis: Selected Writings on Marxism and Law. Edited by Piers, Sharlet Robert Beirne New York: Academic Press, 1980). 61 Taylor, International Law and Revolution.

Ideology and self-validation  47 national law—international law takes the form of imperialism.62 What Miéville sees as law’s intimate association with capitalism and violence ultimately prevents it from performing a transformative role. Fundamentally changing the system’s dynamics necessitates not reforming the institutions, he writes, but eradicating the forms of law—meaning the fundamental reformulation of the political and economic system. Eradication is the best hope for global emancipation, and it would mean the end of law.63 The second group of Marxist scholars criticises the substance of international law’s rules and principles. They insist that the content of normative prescriptions must be reconsidered, especially if we are not content with things as they are.64 Marks writes that working with Marxism involves engaging with the idea that history is to be understood in materialist terms. Legal relations thus have to be grasped with reference to life’s material conditions (as a historically specific mode of production). This premise has some consequences. Firstly, the materialist approach allows a reflection on the inadequacy of idealist forms of analysis, that is to say, on the tendency of legal scholarship to approach the world in a way that overemphasises the autonomous power of ideas.65 Marxism provides the opportunity to delve deeper into the conditions of emergence and expansion of those ideas.66 The consolidation of capitalism as a world system thus necessitates discussing specific aspects of international law like the limits and structure set by the world economy system. The relevant topics to discuss in terms of substance include imperialism,67 the relevance of historicity and the contingent nature of certain facts, class approach to international law, race and Marxism and ideology. Marxian concepts are currently being used to provide an explanation of the history and nature of international law and its connections with capitalism, injustice and misery.68 For example, some recent works use the notion of primitive accumulation to explain current land grabbing as a global legal phenomenon constituted by international law and more specifically international investment law.69 Other works such as

62 Robert Knox, A Critical Examination of the Concept of Imperialism in Marxist and Third World Approaches to International Law (PhD diss., The London School of Economics and Political Science, 2014), 187. 63 Miéville, Between Equal Rights, 318. 64 Susan Marks, International Law on the Left: Re-Examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), 16. 65 Marks, International Law, 3. 66 The idea of “determination,” which connects to the idea of material conditions, is a response to criticisms of Marxism. “Determination” here does not mean the operation of predictable laws external to the human being, but the act of setting limits that are historical inheritances stemming from human actions, and are therefore reversible. Marks, International Law, 3. 67 Knox, A Critical Examination of the Concept of Imperialism. 68 Rose Parfitt, The Process of International Legal Reproduction (Cambridge: Cambridge University Press, 2019). 69 Umut Özsu, “Grabbing Land Legally: A Marxist Analysis,” Leiden Journal of International Law 32, no. 2 (2019): 215–233.

48  Ideology and self-validation the recent book of Nina Tzoulava use a Marxist approach to discuss the notion of civilisation.70 While she shares with the new stream movement the idea of the indeterminacy of the term civilisation, she also uses Marxist theory to state that indeterminacy is not only a synonym of openness, but it also represents a particular form of argumentation that reproduces and reshapes the contradictions of global capitalism.

2.1. A toolkit of Marxist concepts The following paragraphs introduce the concepts of ideology and false contingency, both crucial for working towards a critical analysis of the legal discourses on the legitimacy of the IACtHR. I introduce the concept of ideology in the terms in which it has been developed by Thompson and Marks. These tools will enable me to analyse and criticise (1) the doctrinal discourses on the legitimacy of the IACtHR and (2) the content of IACtHR decisions on democracy and human rights. References to the Marxist critique of democracy will be described more specifically in Chapters 5 and 6. 2.1.1. IDEOLOGY

In the Marxist strand, ideology has been one of the primary paths used to understand international law. The basic concern is connected to a phrase from Marx’s Capital: They do not know it, but they are doing it. Zižek writes that this concept of ideology implies a misrecognition of ideology’s own presuppositions, a divergence between the so-called social reality and our distorted representation, or false consciousness.71 Overall, defining law as an ideology is a contribution from critical legal scholarship that the Frankfurt school’s legacy has influenced. Ideology critique has been used to expose arguments, practices, as politically biased. Besides, this tool has been used to inform about the existence of a specific “ideology” and its harmful effects on the particular segment of legal practice or society. In general, ideology critique helps highlight that ideology is not an object of analysis in the mainstream legal discourse. The use of ideology critique also implies the assumption that legal scholarship shall resist ideology and stand against the roots of it.72 Nonetheless, the concept of ideology has also been subject to much controversy. It has been said that it is no longer useful and that the end of ideology has been reached.73 The definition of ideology was dismissed as a matter of the past

70 Ntina Tzouvala, Capitalism as Civilisation (Cambridge: Cambridge University Press, 2020). 71 Slavoj Žižek, The Sublime Object of Ideology (London: Verso, 2008), 24. 72 Justin Desautels-Stein and Akbar Rasulov, “Deep Cuts: Four Critiques of Legal Ideology,” Yale Journal of Law and the Humanities 31, no. 2 (2021), accessed October 14, 2021, https://ssrn​.com​/abstract​=3797002. 73 Terry Eagleton, Ideology: An Introduction (London: Verso, 1991); Susan Marks, “Exploitation as an International Legal Concept,” in International Law on the Left: Re-Examining Marxist Legacies, ed. Susan Marks (Cambridge: Cambridge University Press, 2008).

Ideology and self-validation  49 by authors like Lipset, Shils and Bel in the 1950s and by Fukuyama in the late 1980s and 1990s.74 These authors saw the concept of ideology either as a rigid comprehensive system of ideas about political ideologies or as a concept that can equally refer to any political programme or ideology—including communism, conservatism and perhaps socialism. As Marks points out, however, proclaiming the demise of ideology seems to only demonstrate the concept’s relevance.75 And indeed, authors like Thompson, Eagleton and Zižek have since revived interest in it. Their contributions provided the basis of Marks’ work The Riddle of All Constitutions. In comparison to its original definition, what remains central is the sense that ideology is connected to the ideas and practices that reproduce and defend the status quo. In this sense, it is not necessarily in connection with the idea of falsity, but to the idea of cynicism.76 Among the contributions to the relationship between law and ideology, it is possible to mention the work of Duncan Kennedy. He built a critique of American adjudication based on ideology critique as a theoretical analysis tool during the 1970s.77 The work of Kennedy highlights how the liberal and conservative perspectives from the American legal system obscure the extent to which the role of judging practice is a matter of choice rather than a neutral exercise.78 For Kennedy, the judge who faces a case in which liberals and conservatives face a legal conflict is an ideological performer.79 In his perspective, the judge finds a

74 Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford: Oxford University Press, 2003), 16. 75 Marks, The Riddle of All Constitutions, 18. 76 Marks. The idea of ideology that remains does not correspond with that which Foucault critiqued. Foucault argues that the notion of ideology “stands in virtual opposition to something else which is supposed to count as truth.” According to Foucault, that is problematic because it involves assuming that it is possible to find a “truth” or “correct representation of the reality,” even in a context in which discourses are neither true nor false. In addition, Foucault says the notion of ideology “stands in a secondary position relative to something which functions as its infrastructure, as its material, economic determinant, etc.” He is arguing against the orthodox Marxist belief that economic relations are the sole determinant of history; in contrast, he believes that the ideas and forms that represent economic relations are just partly constitutive of social conditions. 77 Martti Koskenniemi, “Between Commitment and Cynicism: Outline for a Theory of International Law as Practice,” in International Law as a Profession, eds. Jean D’Aspremont, Tarcisio Gazzini, André Nollkaemper, and Wouter Werner (Cambridge: Cambridge University Press, 2017). 78 Recent studies about law and ideology show the diversity of approaches to the analysis of this relationship. For example, some scholars focus on the relationship between nationalism and legal ideology, or the study of legal ideology from the law and social memory perspective, among others. See Rafał Mańko and Michał Stambulski, “Law and Ideology: Critical Explorations.” Wroclaw Review of Law, Administration & Economics 5, no. 1 (2015): 1–4. https://doi​.org​/10​.1515​/wrlae​-2015​-0019. 79 Duncan Kennedy, A Critique of Adjudication: (fin De Siècle) (Cambridge, MA: Harvard University Press, 1997), 157.

50  Ideology and self-validation solution to a legal problem that fits into the existing system of a recurrent ideological battle between those two sides.80 International law has also been studied from the critique of ideology perspective. This approach has helped explain certain narratives of mainstream international law. Bianchi maintains that the concept is still valuable for analysing whether international law hides particular interests, or whether certain rules represent particular interests rather than the international community’s values. In that sense, the ideology critique might help enable emancipation and assess whether current patterns of international law also allow emancipation. To illustrate, Orford points out that practices of humanitarian intervention are ideological. Following Althusser, she asserts that ideology or cultural representations play a role in creating the individual sense of self and ways of understanding one’s relation to the world. Orford draws on Althusser’s work, which states that ideology plays a role in the creation of subjects,81 to point out that individuals become subjects of ideology through a process of interpellation. Althusser’s statement provides a starting point for thinking about international intervention and the sense of self of those who engage with the legal texts on this topic.82 Orford states that international law operates not only in the realm of state systems but also in the realm of imagination, where meanings are created and where we are invited to see ourselves in certain ways. Legal texts about humanitarian intervention are helpful for exploring the sense of self that mainstream legal scholarship helps create. The narrative of humanitarian intervention presents the idea of rogue states, ruthless dictators and ethnic tensions as threats to the established liberal international order; therefore, it stipulates that use of force is necessary to challenge them.83 The implication of this argument is that the international community is the guarantor of core values; however, that constant representation performs a function that justifies the existing order in ideologically orthodox ways … Much of the international intervention is justified by presenting an image of the international community as acting on the interests of humanity and democracy, while ignoring the violence and injustice effected in the name of internationalism through monetary and military intervention.84

80 Kennedy states that legal conflicts into the existing schemas or structures used to fight earlier ideological battles or ways to understand the world. Kennedy, A Critique, 153. 81 Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press, 2003). Orford also makes clear that for Althusser, ideology produces subjects, rather than the subjects producing ideology. 82 Orford points out that feminist critique and TWAIL have also explained how the mainstream narrative produces subjects who identify themselves with a white male hero associated with attributes like freedom, creativity, civilisation, power, etc. 83 Anne Orford, “Muscular Humanitarianism: Reading the Narratives of the New Interventionism.” European Journal of International Law 10, no. 4 (1999): 691. 84 Orford “Muscular Humanitarianism,” 691.

Ideology and self-validation  51 Koskeniemmi has also referred to the notion of ideology in connection to the legal profession. He uses this notion to explain how the role of international judges oscillates between commitment and cynicism. While the judge personifies impartiality beyond national and other group interests, most judges recognise that assumptions, prejudices or commitments inform their work of various kinds.85 Following the work of Sloterdijk and Duncan Kennedy, Koskeniemmi explains that the judge is cynical and has bad faith. Sloterdijk, in Critique of Cynical Reason, argues that current society is composed of cynical subjects who know about the distance between the ideological mask and the social reality but insist on remaining hooded.86 It means that an individual knows the “particular interests hidden behind an ideological universality, but still one does not renounce it.” In the same way, Eagleton refers to actions rather than to lack of awareness, describing how someone sitting on a whites-only bench, even when consciously opposed to racism, in real terms acts as a supporter of discriminatory practices. Ideology as cynicism implies that the idea of illusion or mystification is not ruled out. The illusion does not lack knowledge of social reality, but it hides or overlooks how our actions contribute to shaping it. Zižek asserts the following idea: [I]f the place of the illusion is in the reality of doing itself, then this formula can be read in quite another way: ‘they know that, in their activity, they are following an illusion, but still, they are doing it’. For example, they know that their idea of Freedom is masking a particular form of exploitation, but they still continue to follow this idea of Freedom.87 Thus, the unawareness or bad faith may reside in the way in which my actions contribute to perpetuate the asymmetries of the social reality. Likewise, ideology operates in terms of the practice, not the error, of adopting a position according to which all knowledge springs from a specific social point. What is illusory is the assumption that the world appears the same from all vantage points.88 Concretely, Koskeniemmi states that the bad faith stems from the fact that the judge knows that judging is a politics of law and has nothing to do with impartiality. However, the judge continues being loyal to the legal profession and to the social artificial distinction between (objective) law and (subjective) politics.89 Moreover, Susan Marks has also made a contribution to the study of international law from the ideology standpoint. This book engages theoretically with the contribution of Susan Marks who has worked with the idea of ideology as a tool

85 Koskenniemi, “Between Commitment and Cynicism.” 86 Peter Sloterdijk, Critique of Cynical Reason, vol. 40, Theory and History of Literature (Minneapolis: University of Minnesota Press, 1987). 87 Sloterdijk, Critique of Cynical Reason, 30. 88 Marks, The Riddle of All Constitutions, 23. 89 Koskenniemi, “Between Commitment and Cynicism.”

52  Ideology and self-validation to criticise the concept of democratic governance. Marks departs Thompson’s critical approach to ideology, which draws on some themes implicit in previous conceptions. For Thompson, ideology is concerned with the way in which symbolic forms intersect with relations of power, or how meaning is mobilised in the social world to bolster up individuals and groups who occupy positions of power.90 In other words, Thompson says ideology can be used to refer to the ways in which meaning serves, in particular circumstances, to establish asymmetrical relations (relations of domination). Thompson indicates that his proposal differs significantly from Marx’s work, in which domination is explained in terms of class relations. According to Marx, the relations of class domination and subordination are the axes of inequality in modern capitalists societies. Thompson claims that Marx downplays the role of other types of relations in containing dominance, such as relations between sexes, ethnic groups, individuals and the state, among others. Although we live in a world in which class domination plays an important role, other forms of conflict must also be taken into account.91 Three aspects are essential to grasp Thompson’s modified notion of ideology. He refers to the concepts of meaning and domination, and the ways in which meaning serves to establish relations of domination. Domination involves power relations which are asymmetrical, excluding a group of agents while another group is endowed with power. Meaning contributes to maintaining relations of domination in several ways. Thompson suggests a set of manoeuvres that are typical of ideology—(1) “legitimation,” (2) “dissimulation,” (3) “unification,” (4) “reification” and (5) “fragmentation.”92 Ideology as legitimation means that relations of domination may be established and sustained by being represented as legitimate, that is, as worthy of support. For instance, narrativisation is a strategy for recounting the past and treating the present as part of a cherished tradition.93 This means continuously presenting the way in which the world appears and reinforcing it. Similarly, the strategy of rationalisation involves providing a chain of reasons that justify things as they are, due to which change becomes irrational.

90  John B. Thompson, Ideology and Modern Culture: Critical Social Theory in the Era of Mass Communication (Cambridge: Polity Press, 1990), 56. This definition rejects the two responses to the inherited concept of ideology. Thompson wrote that one, the neutral definition, defines the concept of ideology as a system of thought or belief, present in every political programme and movement—communism, Reaganism, Thatcherism and Stalinism—while the other abandons the concept of ideology purely because it has been hurled back and forth as a term of abuse. It does not ask whether the tradition has identified issues that endure in the present and deserve our attention. 91 Thompson, Ideology, 57. Thus, the relation between class domination may be contingent rather than necessary. 92 Thompson, 59. 93 Thompson, 61.

Ideology and self-validation  53 Ideology as dissimulation means relations of domination may be established by being obscured or defined in a way that diverts focus from existing relations or processes. One strategy is displacement—transferring the features of one subject or object to another. To illustrate, Thompson refers to Marx’s account of The Eighteenth Brumaire of Louis Bonaparte, who presented himself as the heir of Napoleon and managed to revive the idea of the great hero and the respect surrounding him.94 Another strategy of dissimulation is the mode of inversion. In this case, domination is created through making a thing or action seem to be its opposite. The suppression of protest is presented as the restoration of order, for example,95 and labour exploitation is presented as the result of free exchange of equality to mask the inequality that characterises it.96 Ideology as unification involves the strategy of standardisation, of representing a built unity that dismisses differences and divisions between individuals. Unification is achieved through the use of symbols of unity like flags; those symbols create and reaffirm collective unity in large groups or smaller organisations. Marks refers to universalisation as associated with unification, taking as an example Marx’s reflections on the rule of the bourgeoisie, whereby the concepts of freedom and equality take the form of universality. The ruling class represents its interests as common to all members of the society—as the only reasonable interests. Ideology as fragmentation means domination is achieved by separating individuals and groups that are capable of joining forces against the dominant powers. Fragmentation uses differentiation to disunite and prevent challenges against the “big brothers.”97 Finally, ideology operates through the mode of reification. This concept was created by Lukacs and reflects the Marx’s account of the “fetishism of commodities.” In general terms, ideology freezes history into second nature, presenting it as spontaneous, inalterable. In this sense, reification is connected with naturalisation. Naturalising, like de-historicising, involves denying that ideas and beliefs are products of specific times and geographies.98 It also links with strategies of nominalisation and passivisation that allow the deletion of actors and their agency from the processes they lead or drive; in consequence, processes are represented as if autonomous from the subject that produces them.99 It is also relevant to mention here the idea of false consciousness as incorporated into the original definition of ideology in Marx and Engels’ 1846 work The German Ideology, and in what sense this relates to the current definition used in this book. As mentioned, false consciousness is the condition of lacking awareness

94 Thompson, 62. 95 Thompson, 62. 96 Marks, The Riddle of All Constitutions, 20. 97 Thompson, Ideology, 65. 98 Eagleton, Ideology, 59. 99 Thompson, Ideology, 66.

54  Ideology and self-validation of one’s real state—of ignorance—and relates to mystification or illusion; that is, ideology involves falsehood since it implies a false approach to the reality in which people are living. This perspective clashes with Thompson’s because he is not concerned with that error as much as with ideology as a tool of injustice. Thompson and Marks work with a more empirical perspective that refers to the action as perpetuating domination. In general, ideology, in terms of domination, involves the practice or manoeuvres that contribute to masking reality. The discursive forms through which meaning serves to establish relations of domination shall be analysed in connection with the context in which they are applied. As Marks points out, what counts is the way in which those manoeuvres work in practice: As no ideological strategy is “ever ideological as such,” what counts is the method and strategy through which it operates.100 According to Marks, ideology is self-confirming, but also contains the alternatives for change. Ideology can unsettle traditional understanding of certain meanings and bear a larger landscape with wider possibilities for providing different content to concepts we know. Yet these possibilities do not have emancipatory guarantees: “Once the mystifications through which meaning supports relations of domination have been exposed, no progressive logic will begin to unfold, propelling domination towards emancipation, actuality towards ideals.”101 The chances of change and transformation depend on the context, strategies and tactics that individuals or other subjects engage with.102 2.1.2. FALSE CONTINGENCY

Marks’ work on this concept stems from Unger’s work on false necessity.103 Unger develops the idea that the illusion of false necessity occurs when we make the premises that support the established order seem natural. For him, it is crucial to understand that the organisation of society is created and therefore we can rebel against the worlds we have built.104 He thinks it is crucial to grasp that

100 Marks, The Riddle of All Constitutions, 25. 101 Marks, 27. 102 Marks, 27. 103 A recent publication draws upon the concept of contingency to analyse the path of international law. The authors of this collection explore alternative readings of the past that reveal the causes grounding the current configuration in international law. In this publication, contingency is also used to seek what could have been done differently to change the present international law and build a different future. Ingo Venzke and Kevin John Heller (eds.), Contingency in International Law: On the Possibility of Different Legal Histories (Oxford: Oxford University Press, 2021). 104 Roberto Mangabeira Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy, New ed. (London: Verso, 2001), xvii.

Ideology and self-validation  55 everything that appears as presupposed is, in real terms, the result that human beings have reached through remaking and challenging.105 It is generally possible to find the notion of false contingency behind that of false necessity. The former helps us understand that even when history is a social product and can be remade in a different way, the possibilities are framed by circumstances. To explain this, Marks departs from Marx’s The Eighteenth Brumaire of Louis Bonaparte to explain that historical processes are open and determined.106 She points out that Marx shows how Bonaparte’s coup d’état in 1851 proved that sometimes tragedy repeats itself, but also that the course of the events is not fixed and there is space for the unexpected. Marks points to Marx’s argument “men make their own history, but they do not make it just as they please in circumstances they choose for themselves; rather they make it in present circumstances, given and inherited.”107 This makes clear that we should not assume that history obeys laws. However, the fact that will and action are the heart of history does not mean that we should confuse contingency (accident) with an absence of causal determination. The facts of history are real relations of individuals in a determinate society. In some cases, their actions produce results at variance with and sometimes opposite to those they intended.108 Using false contingency does not mean replacing the idea of false necessity; indeed, they must be used in tandem.109 One is not obliged to accept either contingency or pure determinism.110 Instead, what we are left with is the historical possibility (material conditions) that gives us a specific range of outcomes (not indeterminate) to promote change or make the impossible seem possible.111 The phrase false necessity has barely been used in international law, but there are projects and approaches that coincide with the concept developed by Unger. Under the parameters of the same premise, some legal scholars have pointed out

105 Unger, False Necessity, xxviii. Unger summarises his understanding of false contingency in the following terms: “The illusions of false necessity arise because we surrender to the social world, and then begin to mistake present society for possible humanity, giving in to the ideas and attitudes that make the established order seem natural, necessary, or authoritative.” Unger, xx. 106 Susan Marks, “False Contingency,” Current Legal Problems 62, no. 1 (2009): 1. 107 Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte,” in Marx: Later Political Writings, ed. Terrell Carver (Cambridge: Cambridge University Press, 1996), 32. 108 Edward Hallett Carr and Richard J. Evans, What Is History?, 2nd ed. (Basingstoke: Palgrave, 2001). 109 Marks, “False Contingency,” 10. 110 Ellen Meiksins Wood, Democracy against Capitalism: Renewing Historical Materialism (Cambridge: Cambridge University Press, 1995). 111 Wood, Democracy against Capitalism, 145. This discussion has been carried out through a conflict between determinism and contingency. Determinism has been attributed to Marxism, which has been accused of fatalistically believing that “everything is already decided.” However, discussions on this topic have also pointed out an intermediate point between determinism and the idea that everything in history is vague and indifferent, and no necessary factors exist.

56  Ideology and self-validation how discourses on development policy work as progress narratives that promote the idea that all is for the best; in that exercise, these scholars have contested what appears beyond dispute.112 Marks points out that as lawyers, we tend to try to vindicate the contingency of history. To counterbalance the fact that agents act as if things are arbitrary in international law,113 she argues for including the idea of false contingency when analysing it. The concept helps trace how contingency is accompanied by circumstances; how some facts and institutions in international law are not random or accidental. This is relevant especially because international lawyers can easily fall on the side of necessity when focusing on the indeterminacy of international law as a feature that provides possibilities for transformation. Necessity disguised as contingency is reflected in a situation in which the possibilities that indeterminacy gives us are drawn without taking into account the context or asking why we have these alternatives, or in which we treat things as isolated. This happens when social relations of imperialism are treated like isolated problems, dissociated from wider political and historical processes and dynamics, in mainstream international law. Imperialism’s structural logic is thus obscured and naturalised.114 CLS’ championing of the indeterminacy of international law as a tenet of its theoretical framework is one aspect the author intends to challenge here. In my opinion, we must ask how international law arrived at the logics of neutrality or the logic of dichotomies, and how and why has liberalism shaped the form of legal discourses. And we must ask how the core concepts promoted by mainstream scholarship, like justice, human rights and transnational democracy, have been defined—in what context, by whom and to whose benefit. The content of those principles is not contingent, natural or plucked from the air. We must look at the dynamics that have come with the making of international law. The element of necessity is also present in the illusion that we can make use of any possibility without taking into account that possibilities are shaped by social, political and economic context. Hence Marks’ criticisms of her own work on democracy. She reflects that her work argued against treating the concept of democracy underpinning the debate on the emergent right to democratic government as given or self-evident, pointing out that actually its content is contingent. Yet she failed to mention that the concept of formal democracy that she criticised was not free-floating. In real terms, that concept resulted from a systemic machinery, a bigger picture. She writes that even when she became aware of how that idea of formal democracy became privileged, she did not discuss it.115

112 Marks, “False Contingency,” 2. 113 Marks, 2. 114 Knox, A Critical Examination of the Concept of Imperialism, 191. 115 Marks, “False Contingency.” Marks also refers to the work of David Kennedy regarding the human rights movement to explain how false contingency is present in his work: David Kennedy, “The International Human Rights Movement: Part of the Problem?,” Harvard Human Rights Journal 15 (2002).

Ideology and self-validation  57 Likewise, Marks has used the concept of false contingency to analyse the discourse on root causes116 driven by human rights organisations and scholars. She has argued that international law does not connect the root causes of violence, of abuses of human rights, with imperialism. The notion of root causes, or the way in which it has been used, has a remarkable flaw that consists of a merely partial grasp of how and why abuses occur. There are three principal problems in the understanding of root causes: “the investigation of causes is halted too soon, … effects are treated as though they were causes, … causes are identified, only to be set aside.”117 Marks argues these failures are a form of false contingency. The discourse on root causes has removed the systemic context of human rights violations; these violations are explained as if they are natural or random. In such a framework, solutions for ending them become remote since they apparently belong to an order of nature. Zižek likewise exposes the flaws of the root causes discourse in relation to the situation of migrant workers. For him, the mainstream perspective focuses on that category instead of that of the working class. The displacement of the latter term enables seeing immigrants’ problems as a multiculturalistic issue of tolerance rather than one of power, exploitation and economy. Changing the problem into one of tolerance means falsification, or not looking at the circumstances or at systemic problems.118 Marks has given further examples regarding the way in which root causes involve false contingency. The cases of arbitrary detention in Afghanistan119 are an example of the way in which the examination of root causes has identified consequences as if they were causes. In 2009, the UN Assistance Mission in Afghanistan presented a report on arbitrary detention which provided information on detentions of people after unfair trials or for actions that are not crimes. This document analysed the “root causes” of these human rights violations, including gaps in the legal system (since the procedure of habeas corpus was either non-recognised in the legal system or not respected), the ongoing nature of developing a formal legal system and corruption within the criminal justice system.120 What Marks asks is whether those causes are the real ones, or if they

116 Marks defines root causes as the initiating fact in a bond of causation. Susan Marks, “Human Rights and Root Causes,” Modern Law Review 74, no. 1 (2011): 60. 117 Marks, “Human Rights,” 70. 118 Slavoj Zizek, “Tolerance as an Ideological Category,” Critical Inquiry 34, no. 4 (2008): 660–682. 119 Marks has developed a similar analysis regarding false contingency and the concept of exploitation. For instance, she focuses on how criminalisation as international law’s response to sexual exploitation strengthens a regime of crime control. However, it also led us to believe that injustice in relation to victims of (sexual) human trafficking is random. The response focusing on punishment and criminalisation does not take into account the systemic logics of capital accumulation, but makes us believe that the problem of human trafficking is a matter of morality and may be solved by expertise, administration or law. Marks, “Exploitation,” 299–302. 120 Marks, “Human Rights.”

58  Ideology and self-validation actually go beyond the dysfunction of the legal system and authorities’ lack of accountability. She finds that looking at the real root causes involves assuming that arbitrary detention is functional, and probably rational, within the context of existing conditions. For example, promoting measures to combat corruption does not respond to the fact—documented in the report—that there is a preponderance of poor people in arbitrary detention because they cannot buy their freedom. In the same way, education on the idea of due process will not change the fact—also documented in the report—that judges consider that those accused of crimes of subversion should not have access to defence counsel, especially in a contested political order. Detention thus has a rationality.121

3. Self-validation and ideology as theoretical lenses: problematising legitimacy of the IACtHR This book will show how the IACtHR practices, its case law and legal academic work oriented towards the legitimacy of the IACtHR mirror and reproduce the flaws present in the ongoing approaches to the legitimacy of IHRB mentioned in Chapter 1. Overall, the premises that portray IHRB as samples of progress and evolution of the rule of law seem to be undisputed events or natural facts. Indeed, Chapter 1 shows how legal scholars embrace these presumptions to frame the current understanding and legal discourses about the legitimacy of international tribunals. They occupy themselves with building normative theories that either support or restrain the practices of international tribunals. In general, mainstream legal scholars are focused on making theoretical efforts that match the evolution of international tribunals in an era of the triumph of the rule of law. This book contends the central tenets of the above-mentioned theoretical frameworks from a critical perspective that combines theoretical elements of CLS and legal Marxism. The book’s perspective overlaps with CLS understanding of the nature of law as a legal profession. It coincides with CLS understanding that international law shall be read as a group of people pursuing projects that run against and with each other. The book fits with the CLS perspective because it treats the legitimacy of the IACtHR as a topic framed and built by legal scholars and judges from Latin America. Namely, the book analyses two competing discourses on legitimacy, demonstrating that they are not in an actual conflict. However, it is not the aim of this book to situate the study of the legal discourses on the legitimacy of the IACtHR within the exclusive margins of the study of law as a legal profession as CLS does. It instead attempts to provide a perspective that situates the rise of legal approaches to the legitimacy of the IACtHR beyond the pure internal critique of the role of legal experts and the indeterminacy of the language and legal concepts they use through their legal practice. In line with recent academic scholarship, this book challenges the CLS idea that law and language produced by legal actors are indeterminate, and therefore, a

121 Marks.

Ideology and self-validation  59 product of pure contingency.122 Following Chimni, Miéville and Knox, the book contends that the critique on the indeterminacy of international law has been done without analysing the logic of capitalism in shaping international law’s nature and form. Koskeniemmi and other representatives of CLS, such as Kennedy, do not see the connection between the deep structures of capitalism and imperialism in international law.123 As Marks argues, the meaning of concepts, values and norms is not a random choice; they are the products of a broader picture, of a specific material context. This does not mean that the content of a concept is the product of pure necessity, but that legal topics are not isolated or free. The book centres on analysing texts such as legal academic writings and decisions of the IACtHR that have built the notion of legitimacy of the IACtHR. As mentioned above, the book uses the notion of ideology that grounds the work of Susan Marks to show how the meaning of concepts such as legitimacy of the international tribunals and constitutional perspectives framing the legal approaches to the legitimacy of the IACtHR are not neutral, natural or given. As mentioned in Introduction, the book is occupied with two legal strands of legitimacy of the IACtHR that are defined as opposing and competing. Against this background, the ideology perspective helps unveil how the two legal approaches on the legitimacy of the court are not in real conflict, but overlap each other since they both are grounded on a liberal constitutional perspective of law, human rights and legal institutions. In that vein, the book revisits IACtHR decisions regarding democracy and human rights and promotes a conservative understanding of political transformation shaped in a concrete context of hege­ monic capitalism. In tandem, the book analyses the way in which legal scholars’ arguments on the legitimacy of the IACtHR tend to mask its nature and actions (in terms of “narrative of progress” and “analogy with the local institutions”), as well as the role of the judiciary before local democracies. Also, while maintaining the focus of analysis on the texts and decisions produced by legal scholars pertaining to those two legal strands, the book offers more than a traditional exercise of legal interpretation. Concretely, the book makes use of false contingency as a concept to state that the discussions on the legitimacy of the IACtHR are the product of a historical context shaped by the dynamics of hegemonic and capitalist powers in Latin America. This aspect will be partially addressed in Chapters 5 and 6 with the aim to show what remains unsaid about the socio-historical context in which the rise of the legal discourses on the legitimacy of the IACtHR has taken place. Overall, to work with a combination of CLS legacy and legal Marxism is useful for unveiling the limits of the two discourses on the legitimacy of human rights, which can fall on the side of

122 See the work of Tzouvala, Ntina. Capitalism As Civilisation. Cambridge Studies in International and Comparative Law. Cambridge: Cambridge University Press, 2020. 123 B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (New York: Cambridge University Press, 2017).

60  Ideology and self-validation idealism, whereby the inherited, constraining myth of international law presents itself at an abstract level, removed from historicity. Overall, the critique of ideology will primarily help understand relations of domination that benefit legal experts as the agents of change rather than ordinary people. This book will also help comprehend the study of the role of legal experts from a Marxist perspective. That is, towards the critique of ideology, the book will contribute to seeing the legal experts in constitutional law and international human rights law as intellectuals of global capitalism who create and reproduce their values and norms.124 While using a combination of CLS and Marxism, the book embraces a perspective that proposes law as a tool of emancipation and transformation. Adopting this viewpoint implies that the book keeps distance from some legal Marxists such as Miéville’s who state that law does not have any potential for transformation.125 Although the book recognises that focusing on the text, arguments and indeterminacy of the legal rules is not necessarily emancipatory, it attempts to overcome this flaw with the adoption of a legal Marxist framework.126 In that vein, the book adopts the view of Marks, Knox and Chimni, who recog­ nise the limits of legality, but it also argues that progressive forces can advance their interests through international law. Following Knox’s ideas, one should approach law in terms of strategy and tactics in order to subvert the capitalist model. Strategy refers to long-term goals (theory) and tactics to the achievement of short-term aims. Knox refers to strategy as a theoretical base that is never abstract but always in practice. Strategy is not in opposition to prudence, but articulates and grounds prudent acts. Embracing the idea of strategy and tactics means that international law in itself is a tool for revolution or subverting the system. I find it necessary to adopt a perspective of fundamental opportunism,127 using law in a long-term strategy to transcend liberal legalism rather than accepting its criteria. In a capitalist world law is inevitable, since every aspect of life is juridified, that is, the commodity form dominates all life. Thus, one should make use of law tactically, looking at the legal argument as openly subjected to political exigencies that enable the use of law whenever necessary in the process to overthrow capitalism.128

124 Similar conclusion can be found in the work of Tzoulava, Capitalism as Civilization. 125 Miéville, Between Equal Rights. 126 See the work of Miéville and Taylor criticising also the focus on textuality adopted by CLS, and the influence on the non-materialist wing of Third World Approaches to International Law. Owen Taylor, “Reclaiming Revolution,” Finnish Yearbook of International Law 22 (2011): 259–292. 127 Knox develops the idea of strategy and tactics taking into account the work of Lukacs, who insists that in order to remain critical, one must intend to transcend the existing order. For Lukacs, liberals need not worry about strategy because they act on the logic of the existing order: their actions are only tactical. György Lukács, Political Writings, 1919–1929: The Question of Parliamentarianism and Other Essays (London: NLB, 1972). 128 Susan Marks, “International Judicial Activism and the Commodity-Form Theory of International Law,” European Journal of International Law 18, no. 1 (2007): 199–211

Ideology and self-validation  61 In brief, adopting a critical perspective on the role of the IACtHR and its legitimacy does not criticise the idea of human rights in itself. However, it points out that the current international human rights legal protection does not necessarily reflect their nature as possible instruments against domination, or as instruments to help promote change and transformation (under the logic of strategy and tactics). Critique in this book will enable to highlight that the silences about the conditions and tenets that inform the rise of discourses of legitimacy of the IACtHR are rather the product of the questions we choose to ask and the facts we leave behind as non-relevant.129 Nor does the critique rest on the objective superiority of the local perspective over the Inter-American perspective; that would be another argument of universality. A critical perspective, moreover, does not involve embracing a sceptical position about law and its possibilities. Again, in Orford’s terms, if we do not trust in law (the word) to guarantee a determined outcome, then we should abandon fidelity to the text (law) and do something else—perhaps sociological description.130 This requires stepping out and away from the known terrain. After faith, what? The first step, perhaps, is to analyse whether what we have before us is inflated an expectation in the role of judges in the Inter-American System of Human Rights. Through ideology and false contingency, I analyse the consequences of promoting discourses on legitimacy that rely on the idea that constitutional legal scholars and the international judiciary are entitled to promote change. In the same vein, ideology and false contingency will help me see if the notions of democracy and human rights promoted by the Court are as progressive as they seem. Finally, I try to provide another reading of the role of IHRB and the IACtHR in the Latin American region—perhaps a reading that does not look at these institutions as having the power to transform our realities, but at the people in the local arena as the subjects for promoting change.

129 Tzoulava, Capitalism as Civilization. 130 Anne Orford, “Human Rights after Faith – An Introduction to the Cultures of Human Rights: Symposium,” Melbourne Journal of International Law 7, no. 1 (2006): 1–12.

3

The Inter-American Court of Human Rights and its practice as a supraconstitutional tribunal

Introduction In international human rights law, human rights are defined as universal, interdependent laws that allow the resolution of political dispute and resistance to state power by pleading to judicial or quasi-judicial powers.1 This definition is not contingent, and rather than abstract, the content of human rights and design of institutions aiming to secure them are the product of concrete circumstances and political choices. In this political decision-making, the state has been defined as the very telos of human rights struggles.2 If human rights are political choices taken in a specific historical and political context, their current configuration and usage can be the object of study and possible critique. For example, does the definition of human rights within the mainstream legal strand correspond with the very core of human rights, that is, their potential to perform an emancipatory end, their radicality? It is essential to step away from overdetermining human rights perspectives in Latin America, mainly because human rights’ current notion and design have become objects of worldwide critique throughout the last 25 years.3

1 Illan Rua Wall, Human Rights and Constituent Power: Without Power or Warranty (London: Routledge, 2012). 2 Wall, Human Rights. 3 Critical and empirical literature on human rights law, discourses and movements was present in the late 1990s. The work of Baxi (1998), Kennedy (2001) and Rajagopal (2007) are samples of it. Equally, in the 2010s, Samuel Moyn published The Last Utopia and proposed a revisionist understanding of the origin of contemporary human rights. Moyn locates human rights current shape and content in the late 1970 rather than in the historical revolutions from 18th and 19th centuries or the holocaust in 1945. Stephen Hopgood has also raised a critique against the current International Human Rights law regime, stating that this is the product of American power and the middle-class population’s support. Hopgood argues in favour of a notion of human rights that works as a non-hegemonic language of resistance from below, carved out and put into practice by the subaltern. Stephen Hopgood, The Endtimes of Human Rights (Ithaca: Cornell Press, 2013) In the same line, the work of Costas Douzinas and Illa Wall Rua calls into question the radicality of international human rights law. Wall, Human Rights (Oxford: Hart, 2000).

DOI: 10.4324/9781003200888-4

The Inter-American Court of Human Rights  63 As mentioned in Chapter 2, critical theory has a long-standing tradition that has influenced different strands of the legal field in Latin America. In the field of human rights, the work of Gándara provides us with theoretical reflections about human rights nature from a legal, philosophical perspective applied to the Latin American context. The work of Gándara (2019) offers a theoretical framework to understand human rights (and international human rights law) from a decolonial and non-capitalist perspective. Overall, Gándara proposes to grasp the human rights nature beyond their current liberal and European design and to situate the concept of human rights within a post-liberal and plural context. Latin American scholars have also raised some critiques on the constraints of the current formulation of international human rights for the region. A recent publication mirrors ongoing critiques of social rights’ configuration in the world and Latin America. For example, Bohoslavsky and Cantamutto (2021) refer to the International Monetary Fund and its neoliberal policies’ impact on the configuration of human rights, especially in Argentina. These authors claim that IFM’s loan policies have shaped a minimalist understanding of human rights that often result in violations of the human rights of the populations of debtor States. Bohoslavsky and Cantamutto argue about abandoning neoliberalism’s constraints and embracing a transformative notion of human rights. In the same vein, there is an increasing literature grounded on the critical legal tradition that calls into question the practices of the IACtHR.4 As mentioned in Chapter 2, Veçoso uses the framework of CLS to criticise the absolutist Court’s approach to the amnesty laws in post dictatorial contexts. She argues that the indeterminacy of language prevents the prohibition of amnesty laws as the only way to promote a peaceful political transition. In her perspective, indeterminacy allows the adoption of different legal solutions in every context.5 Related literature to the IACtHR also critically analyses the way in which the work of legal scholars occupied with the IACtHR––particularly the project Ius Constitutionale Commune en America Latina––portray its role as transformative.6

More recently, the work of Moyn and Jessica Whyte propose a genealogy of the legal configuration of contemporary international human rights and neoliberalism. Jessica Whyte, The Morals of the Market: Human Rights and the Rise of Neoliberalism (London: Verso, 2019); Moyn Samuel, Not Enough: Human Rights in an Unequal World (Cambridge, MA: Harvard University Press, 2018). 4 See the list of literature containing articles that adopt a critical legal perspective towards the work of the IACtHR and the mainstream legal scholars working with the IACtHRs authority and legitimacy. Juan C Herrera, “La idea de un derecho común en América Latina a la luz de sus críticas the idea of a common law in Latin America in light of its critiques,” International Journal of Constitutional Law 19, no. 4 (2021): 1385–1416. 5 Fabia Veçoso, “Between Human Rights Absolutism and Contextual History: Aspects of the Experience of the Inter American Court of Human Rights” (PhD diss., University of Sao Paulo, 2012), accessed October 14, 2021, https://teses​.usp​.br​/teses​/disponiveis​/2​/2135​/ tde​-18022013​-142609​/publico​/Tese​_Fabia​_Fernandes​_Carvalho​_Vecoso​_versao​_final​.pdf. 6 Francisca Pou Giménez and Ana Micaela Alterio, Review of Transformative Constitutionalism in Latin America, 2018, accessed October 13, 2021, https://blog​-iacl​-aidc​.org​/blog​/2018​/ 10​/21​/book​-review​-transformative​-constitutionalism​-in​-latin​-america.

64  The Inter-American Court of Human Rights The work of Alejandro Rodiles calls into question the overemphasis that constitutional legal scholars have put into the role of the IACtHR and the judiciary in changing the Latin American context throughout the protection of fundamental rights. Overall, he particularly states that ICCAL scholars offer a “over-­ intellectualised” perspective that centres on the judge as agent of change and removes popular democratic debate as central for the process of transformation of a Latin American context affected by inequality and violence.7 Nonetheless, the mainstream legal approach to international human rights law tends to shadow the above-mentioned critical approaches. Legal studies tend to focus on reparations, impact and compliance of the decisions of the IACtHR. They highlight the role of the IACtHR as pivotal and central for the realisation of human rights in the Latin American region.8 Others give a normative and noncritical account of the practices of the Court such as the creation of the doctrine of conventionality9 and still others provide information on the backlash against the IACtHR and the Inter American Commission of Human Rights.10 In contrast to the mainstream literature, this book aligns with the increasing Latin American legal literature with a critical perspective of human rights. It contributes with a critical analysis of the ideology grounding the legal discourses on the role of the IACtHR, its legitimacy and its image of a transformative agent. In order to grasp the content of these legal discourses, this chapter informs the reader about the origins of the Inter-American System of Human Rights, its structure and the practice of its organs–especially the Inter-American Court of Human Rights (IACtHR). Concretely, the chapter situates the Court’s dynamics in a specific political and historical context of dictatorial governments and the transition to democracy. This input will help call into question the contingent and neutral nature of human rights in Latin America. Subsequently, it will also be possible to challenge the discourses on the legitimacy of the IACtHR that are built under the premises of neutrality of human rights and its current configuration as means of progress in themselves. Also, in order to carry through the analysis of ideology critique, studying the practice of the Court becomes pivotal. The Court’s case law is crucial because the texts (Court decisions) are objects that become part of a shifting consciousness that sustains certain ideas, behaviours and beliefs concerning complex

  7 Alejandro Rodiles, “Toward Ius Commune Americanum?,” in Comparative International Law, eds. Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg (New York: Oxford University Press, 2018).  8 Par Engstrom, The Inter-American Human Rights System: Impact beyond Compliance, Studies of the Americas (Cham: Palgrave MacMillan, 2019).  9 Juan-Pablo Pérez-León-Acevedo, “The Control of the Inter-American Court of Human Rights over Amnesty Laws and Other Exemption Measures: Legitimacy Assessment,” Leiden Journal of International Law 33, no. 3 (2020): 667–687. 10 Jorge Contesse, “Judicial Interactions and Human Rights Contestations in Latin America,” Journal of International Dispute Settlement 12, no. 2 (2021): 271–290.

The Inter-American Court of Human Rights  65 organisations (and within certain professions). The Court’s case law builds a certain understanding of law and international institutions that will be a useful reference for this discussion. Indeed, the two legal streams on the legitimacy of the Court have made use of its case law as a main source for their arguments in favour or against its practice. The contents of this chapter shall not be read as a traditional approach to the study of the IASHR and its organs. Methodologically, it is pivotal to differentiate the practise and case law of the Court separately from the legal academic discourses on the legitimacy of the IACtHR (Chapter 4). This split will help show in Chapter 5 how the frame and definition of the legitimacy of the IACtHR are informed by the academic legal discourse and the case law of the IACtHR. This methodological division will also help grasp that the legal philosophy underlying the legal work (case law) and the case law underlying the legal understanding engage in dynamics of self-image and self-validation. The chapter is divided into three sections. The first provides information on the origins and current situation of the Inter-American System and Human Rights, such as identifying the actors involved in the creation and adoption of the American Convention of Human Rights and other instruments that are part of the Inter-American System of Human Rights. The second section is devoted to detailing the practice of the Court when it exerts its jurisdictional competence, and highlights its activism in creating concepts that do not stem from the American Convention on Human Rights (ACHR). For example, the chapter shows how the Court has expanded its competence and understanding of the notion of reparations, monitoring compliance and social rights, among others. The third part of the chapter is devoted to presenting the notion of control of conventionality as practice driven by the IACtHR to control national legislation. Studying the notion of control of conventionality is relevant because, as will be discussed in Chapters 4–6, it has given rise to some of the arguments related to whether the IACtHR’s activist role in protecting human rights is legitimate.

1. The Inter-American System of Human Rights and the IACtHR The Americas have one major regional organisation with significant relevance for human rights―the Organization of American States (OAS). OAS was established in 1948 at the Ninth International Conference of American States in Bogotá, Colombia. These countries signed the original OAS Charter: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the United States, Uruguay and Venezuela. Other countries joined in subsequent years: Barbados, Trinidad and Tobago (1967), Jamaica (1969), Grenada (1975), Suriname (1977), Dominica, Saint Lucia (1979), Antigua and Barbuda, Saint Vincent and the Grenadines (1981), Bahamas (1982), Saint Kitts and Nevis (1984), Canada (1990), Belize and Guyana (1991).

66  The Inter-American Court of Human Rights The OAS Charter reflects the primary concerns of the American states, such as that of non-intervention.11 This principle had a long tradition in the American continent and its codification was sought by Latin American jurists since the 19th century as a strategy to maintain powerful states’ respect for the political independence and territorial integrity of Latin American countries. This had a direct link with European countries’ interest in the territories of the new Latin American republics, and the disparity of economic and military power between the United States and Latin American countries. The Charter’s stipulation of the sovereignty and integrity of OAS state members confirms its relevance on the American continent. For example, Articles 19 (former Article 15) and 21 (former Article 17) include the clause of non-intervention in the internal or external affairs of the American States and prohibit the use of armed force or military occupation against any OAS state member.12 During that 1948 Ninth Conference, the state members of OAS adopted the American Declaration of the Rights and Duties of Man,13 which recognises civil, political, economic and cultural rights. No enforcement machinery supports this Declaration, since it is not considered a binding document, but the States did pass a resolution indicating the need for an Inter-American Court to protect these rights and requested the Inter-American Jurist Commission (IAJC) to prepare a project of statute. The IAJC neglected to do so, however, since there was no treaty that recognised human rights or imposed obligations on states to protect human rights. The IAJC stated that a prerequisite for an international tribunal would be an international treaty endowing all human beings with certain fundamental rights which must be respected by the contracting states.14 The monitoring of human rights protection was formalised only in 1959 when the Fifth Meeting of Consultation took place. In this meeting, foreign ministers discussed Venezuela’s accusation that the Trujillo government in the Dominican Republic had attempted to undermine the government of Venezuela and assassinate its chief executive. Although the Meeting was initially concerned with issues related to the principle of non-intervention, the attendants focused on the role of OAS in promoting respect for human rights. Some argue that the concerns of Eisenhower’s government in the United States regarding the political situation in Cuba also led to some compromises being reached on the protection of human rights.15

11 More specifically, the Doctrines Drago and Calvo were formulated in Latin America to protect the interests of Latin American republics. 12 José Cabranes, “The Protection of Human Rights by the Organization of American States,” The American Journal of International Law 62, no. 4 (1968): 893. 13 It predates the Universal Declaration of Human Rights by several months. 14 Alwyn V. Freeman, “The First Meeting of the Inter-American Council of Jurists,” The American Journal of International Law 44, no. 2 (1950): 374–382. 15 David Forsythe, “Human Rights, the United States and the Organization of American States,” Human Rights Quarterly 13, no. 1 (1991): 66–98. Despite US interest in promoting human rights, it abstained on the vote creating the Commission for the Protection of

The Inter-American Court of Human Rights  67 The Meeting’s result—the 1959 Declaration of Santiago de Chile—established a link between the protection of human rights and representative democracies, and a link between violations of human rights and anti-democratic regimes. The states also agreed on a compromise to establish a Convention and a Commission for the Protection of Human Rights. States assigned the IAJC to draft a binding convention on human rights including the instrumentalities for their protection, and resolved to establish an Inter-American Commission on Human Rights, composed of seven members to be elected in their individual capacity by the OAS Permanent Council. The Commission was born in a context of prevalence of the principle of non-intervention and the protection of national sovereignty against international monitoring of human rights. In accordance with the Declaration of Santiago, the Council approved the Inter-American Commission’s Statute and elected its first members on June 29, 1960. In 1959, the IACJ had also drafted a convention on human rights to be studied or adopted at the Eleventh Inter-American Conference, which was supposed to be held in Ecuador in 1960 but did not happen due to several political events.16 Enumerating substantive economic, social and cultural rights as well as civil and political rights, this draft floundered for seven years in various OAS organs. In parallel to these developments, the prevalence of the rule of non-intervention in the region weakened after the 1953–1959 Cuban Revolution triggered the OAS’s declaration of adherence to communism as contrary to its values, its exclusion of the Cuban Government from participation in the system and its economic sanctions against Cuba, imposed in 1962. Likewise, in 1965, the United States intervened in the Dominican Republic, ostensibly on behalf of the rights of US nationals there, but primarily to prevent the settling of another communist government.17 Also, in 1965, the Second Special Inter-American Conference, held in Rio de Janeiro, marked the first real possibility for adopting a treaty for the protection of human rights for the Latin American region. The Second Conference sent

Human Rights. It also objected to some of the Commission’s proposed functions. Forsythe affirms that the overall US position on human rights was complex, that is, “favoring action on human rights in the Dominican Republic and by implication in Cuba, barely tolerating a new Commission, opposing a dynamic or authoritative Commission.” Forsythe, “Human Rights, the United States,” 82. 16 Mary Reid Martz, “Ecuador and the Eleventh Inter-American Conference,” Journal of Inter-American Studies 10, no. 2 (1968): 306–327. 17  José Cabranes, “Human Rights and Non-Intervention in the Inter-American System,” Michigan Law Review 65, no. 6 (1967): 1174–1175. Trujillo, a dictator, was assassinated in 1961 and political chaos followed. In April 1965, the Partido Revolucionario Dominicano (Dominican Revolutionary Party) stormed the National Palace and installed a provisional president. Rather than issuing public statement related to the threat of communism, the US government (the commander of US forces) declared that its mission of intervention was launched “in order to give protection to hundreds of Americans who are still in the Dominican Republic and to escort them safely back to this country.”

68  The Inter-American Court of Human Rights the convention draft to the OAS Council to assess it and submit comments to the IACJ. The OAS Council suggested that economic, cultural and social rights, except those rights concerning labour unions, should not be part of the American Convention.18 Finally, in 1968, the American Convention on Human Rights (ACHR) was approved, as well as the creation of the IACtHR.19 The ACHR entered into force in 1978, after the 11th instrument of ratification.20 It came to life on a continent plagued by disparities, structural poverty and violence and ruled by authoritarianism. According to Medina, States that subscribed to and ratified the ACHR were more interested in being part of “the club” of those States that respect international human rights rather than implementing the ACHR in their local orders.21 The ACHR is restricted to civil and political rights; it comprises clauses concerning the right to life, freedom of expression, the right to vote and so on. It also encompasses a non-derogability clause that in cases of emergency, the ACHR prohibits the suspension of the following articles—Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Retroactive Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality) and Article 23 (Right to Participate in Government)— or of the judicial guarantees essential for protecting the rights recognised in the ACHR. The ACHR contains a clause concerning the protection of economic and social rights: Article 26 refers to the progressive duty of the state to adopt measures for the full realisation of the rights implicit in the economic, social, educational, scientific and cultural standards set forth in the OAS Charter. The ACHR,

18 Robert Goldman, “History and Action: The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights,” Human Rights Quarterly 31, no. 4 (2009): 856–887. 19 Buergenthal explained the significance of the adoption of the ACHR in the 1970s. He also provided some reflections on what type of rights shall be the object of priority in the context of dictatorships and gross violations of human right such as the right to access to international justice. Thomas Buergenthal, “American Convention on Human Rights (The): Illusions and Hopes,” Buffalo Law Review 21 (1971): 121–136. 20 The IASHR encompasses other binding treaties that involve the protection of human rights or the eradication of crimes and discrimination. They are the Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990), the Inter-American Convention to Prevent and Punish Torture (1985), the Protocol of San Salvador, the InterAmerican Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para, 1994) and the Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities (1999). However, these treaties won’t be object of analysis in this book. Indeed, the IACtHR has only a limited jurisdiction to declare the international responsibility of the States parties that breach the contents of these treaties. 21 Cecilia Medina Quiroga and Peter Krupa, The American Convention on Human Rights: Crucial Rights and Their Theory and Practice. Second ed. (Cambridge: Intersentia, 2016), 1.

The Inter-American Court of Human Rights  69 in establishing the machinery to be employed in protecting human rights in the Americas, also created the Inter-American Commission on Human Rights (IACHR), and established its role as exerting locus standi before the Court on behalf of alleged victims of human rights violations. The IACtHR has been an important actor that offers judicial protection to human rights in the Latin American region. The IACtHR began operating in 197922 and has a contentious jurisdiction, an advisory jurisdiction (Article 64.1 of the ACHR) and it can also order provisional measures in cases of extreme gravity threatening irreparable damage (Article 63.2 of the ACHR). The Court solves enquiries made by state members of OAS regarding interpretation of the Convention or other treaties concerning the protection of human rights in the American states.23 Currently, 20 of the 23 OAS states party to the ACHR opt to accept the Court’s contentious jurisdiction in accordance with Article 62 of the ACHR: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay. Trinidad and Tobago and Venezuela had accepted, but withdrew from it in 1998 and 2012, respectively. The judicial procedure of the Inter-American System provides access to justice to individuals, but it is the Commission and the states that have locus standi to present a case before the Court. The ACHR recognises that any person or a group of persons, or any non-governmental entity legally recognised in one or more member states of the Organization, are entitled to lodge petitions with the Commission; after the Commission has decided to present a case before the Court, the alleged victims have locus standi in judico at all stages of the contentious procedure.

2. Performance and practices of the IACtHR Among Latin American legal scholarship, it is usually stated that during its more than 40 years of existence, the performance of the IACtHR has been shaped by the socio-economic and political context in the region.24 Overall, the rise and

22 The Court consists of seven judges who must be nationals of the OAS member states. According to Article 52 of the ACHR, these judges are elected in “an individual capacity from among jurists of the highest moral authority and of recognised competence in the field of human rights,” for terms of six years with the possibility of re-election only once. 23 For a general overview of the functioning of the Inter American System of Human Rights, see: James L Cavallaro, Claret Vargas, Clara Sandoval, Bernard Duhaime, Caroline Bettinger-Lopez, Stephanie Erin Brewer, Diana Guzman, and Cecilia Naddeo, Doctrine, Practice, and Advocacy in the Inter-American Human Rights System (Oxford: Oxford University Press, 2019). Also, a general overview of standards of human rights and procedures before the Court can be found here: Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights. 2nd ed. (Cambridge: Cambridge University Press, 2013). 24 Clara Sandoval, “Two Steps Forward, One Step Back: Reflections on the Jurisprudential Turn of the Inter-American Court of Human Rights on Domestic Reparation Programmes,” The International Journal of Human Rights 22, no. 9 (2018): 1192–1208; Ariel Dulitzky,

70  The Inter-American Court of Human Rights development of its case law corresponds with the rise of the language of human rights in the Latin American context as a political tool used by left-wing actors to fight the abuses of dictatorial governments during the 1970s and 1980s.25 Before, at its very beginning, the system’s functioning was dominated by the principle of non-intervention and the dynamics of US foreign policy. Therefore, the Inter-American System was scarcely used. For example, some authors state how the organs of the Inter-American System, such as the Inter-American Commission of Human Rights, were inactive or not well known by ordinary people in the Latin American local societies. As an example, one can refer to the Commission’s inaction in relation to torture in Brazil, despite this organ started its functions in 1959. In 1964, military forces displaced a civil government in Brazil on account of a weak political structure and social inequalities. The ensuing authoritarian government, however, held onto power while failing to improve these gross inequalities. This situation triggered the rise of resistance movements and armed groups, and the military regime responded with torture and forced disappearance, among other violations. Fares says “that Brazil’s descent into the abyss of systematic torture barely registered on the Commission’s radar screen.”26 Although the victims were educated people who chose to challenge the government, they did not choose to use the language of human rights and the Commission to confront the abuses perpetrated against them. Farer states that by that time the Commission had a very low profile, while Brazilian civil society was underdeveloped.27 Equally, at the beginning of 1973, the Commission had only reported on 50 cases, even though the region was packed with incidents of torture and summary execution, among other human rights breaches, especially in Guatemala, El Salvador and Haiti. One reason for the low number of cases is that the victims did not know of the Commission’s existence, because they come from underprivileged or low-income layers of Latin American societies.28 However, in the late 1960s, the profile of the victims of abuses switched from low-income subjects to the middle-class and educated young population. By that time, the latter organised through new political movements which challenged the capitalist model and the traditional political parties, asking for a redistribution

“The Inter-American Human Rights System Fifty Years Later: Time for Changes,” Revue Québécoise De Droit International 1, no. 1 (2011): 127–164; Goldman, “History and Action,” Cecilia Medina Quiroga, “The Inter-American Court of Human Rights 35 Years,” Netherlands Quarterly of Human Rights 33, no. 2 (2015): 118–122; Ariel Dultizky, Derechos Humanos en Latinoamérica y el Sistema Interamericano: Modelos Para (Des)Armar (México: Instituto de Estudios Constitucionales del Estado de Querétaro, 2017). 25 Samuel Moyn, Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2011), Vania Markarian, Left in Transformation: Uruguayan Exiles and the Latin American Human Rights Networks, 1967–1984 (New York: Routledge, 2005). 26 Tom Farer, “The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox,” Human Rights Quarterly 19, no. 3 (1997): 525–526. 27 Farer, “The Rise of the Inter-American Human Rights Regime.” 28 Farer, 523.

The Inter-American Court of Human Rights  71 of wealth among other goals.29 Educated young people were disgusted at the condition of their countries, and embraced Marxist ideas about social change during the 1970s and 1980s. By then, several dictatorships held power as part of a strategy to combat communism in the region. The military dictatorships or weak civilian governments in Brazil, Argentina, Bolivia, Chile, Peru and Uruguay adopted policies of forced disappearance, torture and prohibition of trade unions and student groups to confront leftist groups. These regimes advocated the doctrine of national security to justify their unlawful acts.30 While the class language was abandoned by left-wing movements in the Southern Cone, their members embraced a perspective of human rights and legal-institutional reform.31 Indeed, Markarian points out that the Uruguayan Left replaced the class approach with a discourse whose main aim was to fight against dictatorships through securing rules for political participation and limit the state’s power over citizens.32 The new, higher goal of the Left was recovering democracy and defending the civil and political rights suppressed by dictatorial regimes. This change of language among left-wing members—middle-class and educated people—was impulsed due to their connection with network and institutional ties in the international arena. The left-wing victims and their families embraced the emerging transnational human rights language and reshaped their discourse against dictatorial governments. Uruguayan left-wing members defined themselves as possessing both constitutionally and internationally guaranteed rights. According to Moyn, the decision of the leftist sector to resist the dictators’ repression in terms of human rights struggles was pivotal in the promotion of the concept itself in the region.33 Moyn suggests that the organs of the InterAmerican System were thus more the beneficiaries than the agents driving the rise of human rights in the region.34 The Commission’s interventions have generally

29 Markarian, Left in Transformation. 30 Daniel Feierstein, “National Security Doctrine in Latin America,” in The Oxford Handbook of Genocide Studies, Vol. 1 (Oxford: Oxford University Press, 2010). Feirstein refers to the doctrine of National Security as the policy developed primarily by the United States. He describes it in the following terms. “This policy widened the sphere of international conflict to Latin America in the belief that the region could play a strategic role in the fight against communism, an ideological struggle that had no territorial boundaries. The National Security Doctrine was inspired by the cold war but also by the methods developed by Western powers in various counter-insurgency struggles. This policy involved the practice of systematic annihilation of political enemies in Latin America, and began as early as 1954 with the military coup in Guatemala, continued almost until the beginning of the twenty-first century.” 31 Paige Arthur, “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice,” Human Rights Quarterly 31, no. 2 (2009): 347. 32 Markarian, Left in Transformation. 33 Moyn, Last Utopia, 143–144. 34 Moyn, 143.

72  The Inter-American Court of Human Rights been considered crucial for the protection of human rights, but this tends to overlook the fact that it was a political decision on the part of social movements that made the mechanisms of protection of human rights more relevant. The adoption of human rights language among the left wing caused the Commission’s cases to proliferate within seven years from around 50 cases to more than 7000.35 It became particularly active in the 1970s, with reports on human rights in Chile in 1974, 1976 and 1977.36 In 1979, the Commission organised a site visit to Argentina, receiving victims’ and relatives’ testimonials on the excesses of the military regime. The report published by the IACHR provided information on the systematic nature of these human rights violations.37 Thus, the Commission exerted its competence to monitor the human rights situation in member states through its annual reports or visits to states party to the American Convention of Human Rights.38 Initially, the Inter-American System mainly did on-site visits and reports on the general situation of human rights in Latin American countries. These tools were considered more effective than the individual cases (petitions) due to the generalized context of human rights violations in countries such as Argentina, among other countries.39 However, later in the 1970s, the rise in human rights language also triggered the functioning of the IACtHR as a jurisdictional body since the Commission started to bring cases to the Court. Throughout its four decades of existence, the IACtHR has developed its competencies in a way that supporters have defined as progressive. However, also some others have qualified as intrusive of the States sovereignty. Since the beginning of its mandate, the Court has dealt with a context of post-dictatorship transitions (the early 1980s to the beginning of the 21st century). The Court dealt with cases concerning mass and systematic human rights

35 Farer, “The Rise of the Inter-American Human Rights Regime,” 523, 527. See also: Cecilia Medina Quiroga, The Battle of Human Rights: Gross, Systematic Violations and the InterAmerican System (Dordrecht: M. Nijhoff, 1988). 36 Report on the status of Human Rights in Chile Inter-Am. Comm’n H R, OEA/Ser.L/V/ II.34, 1974, http://www​.cidh​.org​/countryrep​/Chile74eng​/chap​.2​.htm; Third Report on the Situation of Human Rights in Chile, Inter-Am. Comm’n H R, Oea/Ser.L/V/Ii.40, Doc. 10 (1977), (http://www​.cidh​.org​/countryrep​/Chile77eng​/INDEX​.htm1977). 37 For a balanced overview about the impact of the report of the Situation of Human Rights in Argentina, see: Ariel Dulitzky, “Argentina, Desapariciones forzadas y el Sistema Interamericano de Derechos Humanos: A Propósito del Caso Julien-Grisonas,” Revista Pensamiento Penal (2020), accessed October 14, 2021, http://www​.pensamientopenal​.com​.ar​/system​/ files​/2021​/03​/doctrina49558​.pdf. 38 Report on the Situation of Human Rights in Argentina, Inter-Am. Comm’n H R, Oea/ Ser.L/V/Ii.49, Doc. 19 Corr.1, 1980, http://www​.cidh​.org​/countryrep​/argentina80eng​/ toc​.htm. 39 Tom Farer, “The Future of the Inter-American Commission on Human Rights: Promotion versus Exposure,” in El Futuro del Sistema Interamericano de Protección de los Derechos Humanos, eds. Juan Méndez and Francisco Cox (San José: Instituto Interamericano de Derechos Humanos, 1998), 515; Dulitzky, “Argentina, Desapariciones forzadas,” 27.

The Inter-American Court of Human Rights  73 violations perpetrated under dictatorial governments in this political landscape.40 In those cases, the IACtHR declared an international responsibility of former dictatorships for violating the right to life, integrity, juridical personality and judicial protection, among others. The IACtHR also established specific standards of protection of human rights and defined the core content of, among others, the rights to life, human treatment, freedom of expression, judicial protection and the limits of the amnesty laws. Later, since the beginning of the 21st century, the IACtHR has started to deal with cases concerning the protection of social rights, inequality and the safety of vulnerable groups such as indigenous, Afrodescendants,41 women42 and LGBT.43 As the Court developed its case law on human rights standards in the Latin American context, it also built practices concerning the scope and nature of its jurisdiction. The chapter will show how the Court jurisdictional practices have usually gone beyond its initial competencies defined in the ACHR. Some samples of these practices are the uniform approach to human rights protection, the judicial protection of social rights, the holistic approach to reparations, the informal creation of a mechanism of compliance and the control of conventionality. These practices have served to build the image of the IACtHR as if it were a supraconstitutional or constitutional tribunal that holds a hierarchical relationship with the local authorities of Latin American states. Indeed, the notion of control of conventionality and its design has been important input for shaping the discourses on the legitimacy of the IACtHR, scope and contents.44 To date, these practices of the IACtHR also face resistance from the States parties of the ACHR.45 They argue that the Court has overstepped its original jurisdiction and threatens the sovereignty of the States. They also say that the Court performance may conflict with the concept of subsidiarity as a structural principle of the Inter-

40 Victor Abramovich, “From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System,” Sur 6, no. 11 (2009): 7–38; Buergenthal, “American Convention.” 41 The Saramaka People v. Suriname, Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. Inter-Am. Ct. H.R., Series C No. 185 (2006), https:// www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_172​_ing​.pdf. 42 Gonzalez et al. (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C), No 205 (November 16, 2009), https:// www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_205​_ing​.pdf. 43 Gonzalez et al. (“Cotton Field”) v. Mexico, Request for Interpretation of the Judgment on Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 254 (November 21, 2012), https://corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_239​_ing​.pdf. 44  Jorge Contesse, “The International Authority of the Inter-American Court of Human Rights: A Critique of the Conventionality Control Doctrine,” The International Journal of Human Rights 22, no. 9 (2018): 1168–1191; Hennebel Ludovic, “The Inter-American Court of Human Rights: The Ambassador of Universalism,” Revue Québécoise De Droit International 1, no. 1 (2011): 57–97. 45 The Inter-American Commission of Human Rights faces also resistance from the States and has gone through an economic crisis due to the lack of economic support from the States parties.

74  The Inter-American Court of Human Rights American System of Human Rights.46 As mentioned in the introductory part of this chapter, the practices of the IACtHR constitute the premises and the object of analysis among the scholars who run the discourses on the legitimacy of this Court.

2.1. Creation of uniform standards of human rights contents The IACtHR has created standards of human rights protection that can be defined as samples of a universalist approach rather than deferential in favour of the States. It is argued that this particularity of the system is the product of the sociopolitical context plagued by gross violations of human rights and threatens the new democratic constitutional orders. This context has justified the use of different interpretative methods to create uniform standards of human rights protection. In the view of former judges such as Cançado Trindade, the Court’s attitude towards uniformity of human rights standards has helped face the latent potential for regression to authoritarian statehood and abuses of states of emergency.47 One illustration of the uniformity of standards concerns amnesty laws. The IACtHR stated that self-amnesty laws were not valid since they breached the norms of jus cogens such as the right to access to justice and the right to judicial protection. It declared the Peruvian amnesty law invalid and ordered the reopening of the prosecution of those responsible for the gross violations of human rights in Peru.48 According to the Court, self-amnesty laws make victims defenceless and perpetuate impunity and obstructing investigation, access to justice, obtaining knowledge of the truth and corresponding reparations.49 The prohibition of amnesty laws favouring perpetrators of gross violations of human rights became a general rule, applied in decisions like Almonacid Arellano v. Chile, Gomes Lund et al. v. Brasil and Gelman v. Uruguay. In all these cases, the Court declared the responsibility of the states without exception. However, while the nature of amnesty law as a norm of jus cogens seems to be more an argumentative creation of the IACtHR than a general consensus among the subjects of the international community,50 States and scholars have also reacted against the Court position. Some have argued that the IACtHR has

46 Contesse, “Judicial Interactions and Human Rights Contestations;” Ximena Soley and Silvia Steininger, “Parting Ways or Lashing Back? Withdrawals, Backlash and the InterAmerican Court of Human Rights,” International Journal of Law in Context 14, no. 2 (2018): 237–257. 47 Abramovich, “From Massive Violations.” 48 Barrios Altos v. Peru, Merits, Judgment Inter-Am. Ct. H. R. (Series C) No. 75 (March 14, 2001), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_75​_ing​.pdf. 49  Barrios Altos v. Peru, Merits, Judgment Inter-Am. Ct. H. R. (Series C) No. 75 (March 14, 2001), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_75​_ing​.pdf. 50 For example, one could discuss whether an international human rights court has the competency to argue that the prohibition of amnesty laws has the status of a jus cogens norm. Or is it that competency exclusive of the International Court of Justice?

The Inter-American Court of Human Rights  75 failed to create a more deferential standard towards analysing amnesty legislation adopted by democratic governments. Indeed, critics point out that adopting a uniform approach towards the prohibition of amnesty laws implies a breach of the principle of subsidiarity. In Gelman v. Uruguay, the Court declared the incompatibility of the Uruguayan amnesty legislation with the ACHR and ordered the State to initiate criminal proceedings against the perpetrators of the enforced disappearance of María Claudia García Iruretagoyena de Gelman. This decision was criticised because the Court fully applied the general rule prohibiting amnesty laws––Barrios Altos v. Peru and Almonacid Arellano v. Chile––without considering if the Gelman v. Uruguay case law had certain particularities as its democratic origin. In the decision, the Court stated that although the Expiry Law was approved during a democratic stage and was supported on two occasions by people through direct democracy, the legislation was not valid under the standards of international law. It also argued that the protection of human rights acts as a limit to the rule of the majority, who should also prioritise “control of conformity with the Convention.”51 The decision of the Court triggered a reaction from the Supreme Court of Uruguay, which put into question the authority of the Court as the ultimate interpreter of the ACHR, and its capacity to intervene on matters of constitutional nature such as the reopening of criminal procedures (non-retroactivity of criminal legislation). Indeed, the Uruguayan Supreme Court declared the unconstitutionality of Law 18.83152 that opened the possibility to prosecute perpetrators of gross violations of human rights in Uruguay.53 Despite the adverse reaction from Uruguayan Court, the IACtHR reinstated the uniformity of its doctrine on amnesty laws. During the compliance supervision proceeding, the IACtHR argued that the decision of Uruguay’s Supreme Court did not consider the evolution of international human rights law, affecting the injured parties’ right to access justice and perpetuating impunity. In the view of the IACtHR, when a State ratifies a treaty, that treaty is part of the national legal order and has effects over the Constitution and other local legislation.54 Overall, the uniformity of human rights standards has continued as a rule that does not admit almost any exception. The invalidity of amnesty laws was reconfirmed as a general rule of the Inter-American System in the supervision of

51 Gelman v. Uruguay, Merits and Reparations, Judgment Inter-Am. Ct. H. R. Series C No. 221 ¶ 239 (February 24, 2011), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_ 221​_ing​.pdf. 52 This legislation was passed by the Parliament of Uruguay in compliance with the decision Gelman v. Uruguay. 53 Excepción de inconstitutionalidad artículos 1, 2 y 3 de la Ley 18.831, IUE 2–109971/2011 Supr. Ct. U. (2013). 54 Gelman v. Uruguay. Monitoring Compliance with Judgment, Order of the Court, “Considerando” ¶ 103 (Inter-Am. Ct. H. R. March 20, 2013), https://www​.corteidh​.or​.cr​/docs​/ supervisiones​/gelman​_20​_03​_13​.pdf.

76  The Inter-American Court of Human Rights compliance of the cases Barrios Altos v. Peru and La Cantuta v. Peru that took place in 2018 (see Section 3). While it admitted the possibility that the local authorities provide pardon or amnesty in favour of people sentenced for gross violations of human rights, it also stated this was an exceptional event since the right to access to justice of the victims shall prevail before the former.55 Reaffirming the standards on amnesty laws exemplifies how the possibility of a change from uniformity to subsidiarity as a general principle of the IACtHR is not necessarily a concern for the IACtHR, even though the resistance of States has increased in the last years. This statement means that in the view of the IACtHR, local authorities may not have different alternatives to detach from the standards this tribunal has created. The chances to include the notion of margin of appreciation—deference in favour of the State—as it is used in the European System of Human Rights seem to be more a theoretical discussion among the legal scholars who have proposed it than a realistic alternative that the IACtHR will adopt.56

2.2. Social rights protection As mentioned above, the Court’s practice has moved from cases involving gross violations of human rights to issues related to the scope of social rights and the formulation of public policies in order to overcome the levels of exclusion and the structural patterns of inequality.57 For legal scholars, this change in the nature of cases is linked to the fact that that the democratically elected governments in the region are not capable of reversing the economic and social conditions of people living in conditions of structural inequality and exclusion, such as peasants, women, children and indigenous people. Although the ACHR recognises civil and political rights as human rights, the Court has developed argumentative criteria to provide indirect and direct social rights under the scope of the ACHR. One argument is related to the protection of material equality as it constitutes the grounds of some Court decisions that provide a social side of civil and political rights. More specifically, the Court has developed standards concerning the social dimensions of civil rights, such as the

55 Barrios Altos and Case of La Cantuta v. Peru. Monitoring Compliance with Judgment, Order of Court, “Considerando” ¶ 54–57 (Inter-Am. Ct. H. R. May 30, 2018), https:// www​.corteidh​.or​.cr​/docs​/supervisiones​/barriosaltos​_lacantuta​_30​_05​_18​.pdf. 56 Laura Clérico, “El Argumento de la Falta de Consenso Regional en Derechos Humanos. Divergencia entre el TEDH y la Corte IDH,” Revista Derecho Del Estado 46 (2020): 57–83, https://doi​.org​/10​.18601​/01229893​.n46​.03, Jorge Contesse, “Contestation and Deference in the Inter-American Human Rights System,” Law and Contemporary Problems 79, no. 2 (2016): 123–146, among others. 57 Abramovich, “From Massive Violations.”

The Inter-American Court of Human Rights  77 right to life, physical integrity and the collective aspect of the property right,58 among others.59 The Court has used the notion of a dignified life to provide indirect protection to social rights.60 For example, in 2015, in the case Gonzales Lluy v. Ecuador, the Court used the notion of a dignified life to rule justiciability of the right to health of a person infected with HIV as part of the content of the right to life and human treatment recognised in ACHR Articles 4 and 5. Also, since 2006, the Court has referred to Article 26 of the ACHR and its content as a supporting argument to protect social rights. In cases such as Acevedo Buendia v. Peru, the Court has paved the way for further widening its competencies. In this case, the Court argued that the interdependence between civil and political rights and economic, social and cultural rights creates a general obligation for the states to pursue their fulfilment and avoid adopting regressive measures. Only in 2017, the IACtHR has interpreted that it holds jurisdiction to provide direct and autonomous judicial protection to social rights under Article 26 of the ACHR that contains references to social rights. Namely, in Lagos del Campo v. Peru, the IACtHR declared as justiciable the right to work, particularly to reinforced stability. Overall, in this case, the Court relied on the binding nature of Article 26 of the ACHR to expand its ratione materiae competence.61 More recently, the IACtHR has also analysed violations of other social rights via Article 26 in connection with the violation of civil and political rights, such as the right to health in Poblete Vilches v. Chile and Cuscul Pivaral v. Guatemala.62

58 Five Pensioners v. Peru, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 98 (February 28, 2003), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_ 98​_ing​.pdf. In this case, the Court describes the right to a pension as protected under the content of the right to property which is recognised in Article 21 of the ACHR. 59 Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 279 (May 29, 2014), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_279​_ing​.pdf. The Saramaka People v. Suriname, Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. Inter-Am. Ct. H.R., Series C No. 185 (2006), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_172​_ing​.pdf. Xucuru Indigenous People and Its Members v. Brazil, Preliminary Objections, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 346 (February 5, 2017), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_346​_ing​.pdf. 60 The notion of dignified life was introduced by the Court in the decision Villagrán Morales v. Guatemala (1999); it has further refined the notion of dignified life in subsequent decisions. 61 Case of Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 340 (August 31, 2017), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_340​_ing​.pdf. 62 Case of Poblete Vilches et al. v. Chile, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 349 (March 8, 2018), https://www​.corteidh​.or​.cr​/docs​/casos​ /articulos​/seriec​_349​_ing​.pdf; Case of Cuscul Pivaral et al. v. Guatemala. Preliminary Objection, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C)

78  The Inter-American Court of Human Rights The Court’s decision to provide judicial protection to social rights is not out of contestation. Arguments such as the interdependence of human rights and the nature of Article 26 of the ACHR have received both support and criticism from the academic community.63 One idea used for criticism is based on the fact that the OAS has a specific treaty related to social rights—the protocol of San Salvador. The latter grants jurisdiction to the Inter-American Commission and Court only over petitions that allege violations of unions and education rights, respectively. According to this argument, the IACtHR does not hold a competence to protect other social rights than the ones established in the aforementioned treaty.64 Equally, the decision has also been criticised by some judges of the IACtHR. They have issued dissenting opinions to state that the above-mentioned arguments have led to a mutation of the ACHR without the consent of the States’ parties.65

2.3. Holistic reparations Another essential feature of the IACtHR’s jurisdiction and its informal expansion is the type of reparations it orders. According to Article 63.1, in cases in which the Court finds a breach of rights or freedoms protected under the ACHR, it rules the remedy or the compensation to be paid to the injured party. Under the parameters of this article, the Court has ordered two types of reparations. Firstly, it has adopted traditional pecuniary measures of reparation when a state has been declared responsible for human rights violations. Secondly, the Court has created complementary non-pecuniary measures, such as requiring states to design and apply public policies regarding social rights, restitution, cessation, medical and psychological rehabilitation, apologies, memorials, legislative reform and training programmes for state officials.66

No. 359 (August 23, 2018), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​ _378​_esp​.pdf. 63 Among the supporters, see case Lagos del Campo v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 340 (concurring opinion of Judge Ferrer Mac-Gregor). 64 Thomas M. Antkowiak, “A ‘Dignified Life’ and the Resurgence of Social Rights,” Northwestern University Journal of International Human Rights 18, no. 1 (2020): 1–51. Other reasons mentioned by Antkowiak are the nature of Article 26 contents. They are defined more in terms of standards than rights in themselves. Those “standards” in many instances refer to amorphous principles and objectives of public policy. 65  Lagos del Campo v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 340 (partially dissenting opinion of Judge Humberto Antonio Sierra Porto). 66 For a comparative perspective on the type of reparations issued by the IACtHR and United Nations Human Rights Committee, see: Rachel Murray and Clara Sandoval, “Balancing Specificity of Reparation Measures and States’ Discretion to Enhance Implementation,” Journal of Human Rights Practice 12 (2020): 101–124.

The Inter-American Court of Human Rights  79 The non-pecuniary measures can benefit not only victims but also third parties or a community as a whole.67 For example, in the Aloeboetoe et al. v. Suriname case, in which the Court declared that the obligation to provide reparations for damages is sometimes, within limits imposed by the legal system, extended to cover persons who, though not successors of the victims, have suffered some consequence of the unlawful acts.68 In terms of legislation reform, the Court ordered the reformation of specific legislation in the 2001 decision in Olmedo-Bustos v. Chile, requiring Chile to amend its national constitution in order to prohibit prior censorship and allow exhibition of the film The Last Temptation of Christ.69 More recently, the Court has requested that states bring their legislation into line with the Inter-American Corpus Juris in cases such as forced disappearance of persons,70 military jurisdiction71 and prison conditions,72 among others. In these cases, the Court did not scrutinise specific laws, as it did in Olmedo-Bustos. States and scholars have argued that the holistic approach to reparations conflicts with the principle of subsidiarity. According to this principle, the State is better prepared for the response to human rights violations than supranational organs. In that sense, as a general rule, the scope of reparations shall be deferred to the condemned State.73 However, the Court did not use this principle and established the standards of reparation that include policy design and aspects that have been usually domestic matters. Among the reasons given by the IACtHR for introducing its holistic perspective is the unwillingness or incapability of the States to effectively deal

67 González et al. (“Cotton Field”) v. Mexico, Merits, Reparations and Costs, Judgment InterAm. Ct. H.R. (ser. C) No. 205 ¶ 450 (November 16, 2009). 68 Aloeboetoe et al. v. Suriname, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 15 ¶ 67 (September 10, 1993), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/ seriec​_15​_ing​.pdf. 69 The administrative and judicial authorities of the government of Chile censored the screening of “The Last Temptation of Christ” because Article 19(12) of the 1980 Constitution of Chile established a “system of censorship for the exhibition and publicity of cinematographic productions.” The Court declared the international responsibility of Chile for the breach of the right to freedom of expression (Article 13.2 of the ACHR). Indeed, the ACHR prohibits expressly prior censorship, but establishes that the right shall be subject to subsequent imposition of liability, which shall be expressly established by law to ensure respect for rights or reputations, the protection of national security, public order or public health or morals. 70 Gómez Palomino v. Peru, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 136 (November 22, 2005), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_136​_ing​.pdf. 71 Palamara Iribarne v. Chile, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 135 (November 22, 2005), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_135​_ing​.pdf. 72 Montero Aranguren et al. (Detention Center of Catia) v. Venezuela, Preliminary Objection, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No 150 (July 5, 2006), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_150​_ing​.pdf. 73 Leiry Cornejo Chavez, “New Remedial Responses in the Practice of Regional Human Rights Courts: Purposes beyond Compensation,” International Journal of Constitutional Law 15, no. 2 (2017): 372–392.

80  The Inter-American Court of Human Rights with issues regarding the protection of human rights. In the view of the Court, the protection of human rights and restitution in integrum should just not be limited to the investigation, prosecution and punishment of human rights violations. It also entails securing non-repetition of these abuses through the advancement of public policies with a broader scope than the victims of a case.74 Although the Court has created a broader reparations competence that prioritises the protection of victims and embraces a holistic perspective, it is also true that levels of compliance are low compared to other systems, such as that of Europe. Condemned Latin American states comply primarily with orders to pay just satisfaction to victims of human rights violations but refuse to abide by the non-pecuniary reparations.75 In other cases, the local authorities also call into question the criteria used by the IACtHR to determine the amount of economic compensation. There are some examples concerning the backlash of local authorities before the decisions of the IACtHR on the scope of pecuniary and non-pecuniary damage established by the IACtHR. For example, in the case of Río Negro Massacres v. Guatemala, the Court discussed whether some of the victims who had obtained a pecuniary reparation under the NRP were “duly compensated.”76 The NRP recognised a financial reparation of 44,000 quetzales for every family unit that had more than one fatal victim of extrajudicial execution, forced disappearance or death during a massacre. In the view of the IACtHR, this standard did not represent an adequate reparation or compensation for pecuniary and nonpecuniary damages. In that sense, this tribunal ordered the State to pay much higher amounts in individual terms (rather than in family units). Concretely, it ordered to pay $30,000 to each victim of enforced disappearance, US$15,000 to each surviving victim of the massacres, US$10,000 to each survivor of the massacres who is a member of the family of the victims of forced disappearance and an additional US$10,000 to each survivor of the massacres who was a victim of acts of slavery and involuntary servitude.77 The Guatemalan authorities refused to accept the reparations imposed by the IACtHR. They stated that the IACtHR did not have any power to establish a different framework for reparation than the NRP of Guatemala. They

74 La Cantuta v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 162 ¶ 201 (Nov. 29, 2006); Gonzales et al. v. Mexico (“Cotton Field”), Merits, Reparations and Costs, Judgment Inter-Am. Ct. H.R. (ser. C) No. 205, ¶ 450 (November 16, 2009). 75 The European human rights system has higher levels of compliance, but also a much narrower jurisprudence of remedies. 76 Río Negro Massacres v. Guatemala. Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 250 (September 4, 2012), https://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_250​_ing​.pdf. 77  Río Negro Massacres v. Guatemala. Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 250 (September 4, 2012), https://www​ .corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_250​_ing​.pdf.

The Inter-American Court of Human Rights  81 also argued that the State is the only one with the competence to determine the amount to be paid as reparation for pecuniary and non-pecuniary damage.78 In 2014, during the monitoring compliance of this case, the IACtHR declared that the State was blatantly refusing to implement the judgment and claimed the State’s attitude to be an act of contempt, contrary to its international obligations. Over the years and due to the critics it has received, the Court has turned its approach. It has become more cautious and has tried to harmonise its conception on reparations with domestic reparation programmes (DPR). Clara Sandoval describes how reparations in some specific cases were issued after considering states’ views on DPR.79 For example, in the case of García Lucero v. Chile, the IACtHR deferred to Chile the decision of providing a reasonable amount of compensation to Mr Lucero for rehabilitation purposes. In contrast to previous cases (such as Bámaca Velásquez v. Guatemala and Chitah Ney v. Guatemala), the Court sidestepped establishing the amount of money to pay to Mr Lucero.80 However, in other recent cases such as Tenorio Roca and Others v. Peru, the Court continued upholding its standards against the DPR. One argument used by the Court was that the condemned state had not proved the victims had adequate reparation under the Peruvian DPR.81 Overall, for some scholars, this change in the conceptualisation of reparations and lack of clarity on the reparations standards hinders the possibility that the victims of contentious cases before the Court obtain adequate, prompt and effective reparation when DRP does not secure proper standards of reparation.82 In their view, adopting a more deferral perspective in favour of states entails the victims with long-standing cases before the Court—eight years or more—face the argument that they have to return to domestic authorities, even though they think the State has already failed them.83

78 Río Negro Massacres and Gudiel Álvarez et al. v. Guatemala. Monitoring Compliance with Judgment. Order of the Court, Inter-Am. Ct. H. R. (August 21, 2014), https://www​.corteidh​.or​.cr​/docs​/supervisiones​/Rio​_Negro​_y​_Gudiel​_21​_08​_14​.pdf. 79 Sandoval, “Two Steps Forward, One Step Back,” 1197. 80 Case of García Lucero et al. v. Chile. Preliminary Objection, Merits and Reparations, Judgment, Inter-Am. Ct. H. R. (Series C) No. 267 (August 28, 2013), https://www​.corteidh​.or​. cr​/docs​/casos​/articulos​/seriec​_267​_ing​.pdf. A similar approach has been taken in the case Operacion Genesis v. Colombia. Afrodescendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No 270 (November 20, 2013), https://www​.corteidh​.or​.cr​/docs​/casos​/ articulos​/seriec​_270​_ing​.pdf. 81 Tenorio Roca et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs, Judgment Inter-Am. Ct. H. R. (Series C) No. 314 (June 22, 2016), https://www​.corteidh​.or​.cr​/docs​/ casos​/articulos​/seriec​_314​_esp​.pdf. 82 Sandoval, “Two Steps Forward, One Step Back,” 1203. 83 Sandoval, 1203.

82  The Inter-American Court of Human Rights States and scholars often quote the principle of subsidiarity as necessary to limit the intervention of the IACtHR in defining the scope of reparations. It is argued that the Court activism leads to resistance and backlash against the Court; therefore, this organ should revisit its understanding of the principle of subsidiarity and margin of appreciation.84 However, some also state the IACtHR uses the principle of subsidiarity so that it does not mean blind deference to domestic systems.85 For example, Sandoval suggests that the Court shall evaluate in every case whether to provide a holistic approach or to defer to the States the concretisation of reparation measures.86 To date, there is no clarity on whether and how the IACtHR will implement consistent rules and standards of reparation that respect or do not challenge the principle of subsidiarity in favour of the Latin American states.

2.4.  Supervision of compliance Unlike the European System of Human Rights where States show higher levels of compliance, the Inter-American System of Human Rights has always faced problems with the effectiveness of the Court decisions. Indeed, the ACHR does not include any norm explaining methodology for compliance, and there is no organ in charge of following up on compliance to decisions. The Court has created a mechanism of supervision of compliance that does not necessarily coincide with the original ACHR text. Using the principle of compétence–compétence, it has ruled that it has the authority to supervise the execution of its judgments.87 This is, in fact, an exception within the international law standards since international courts do not supervise compliance with their own judgments. The Court has also said that its authority to monitor compliance is grounded in the constant and standard practice of the Court and in the resulting opinio Juris communis of the States Parties to the Convention, with regard to whom the Court has issued various orders on compliance with judgment, that is to say, in customary law.88

84 Jorge Contesse, “Resisting the Inter-American Human Rights System,” Yale Journal of International Law 44, no. 2 (Summer 2019): 234, 236–237. 85 Sandoval, “Two Steps Forward, One Step Back,” 1204. 86 Sandoval, 1204. 87 Baena Ricardo et al. v. Panama. Competence, Judgment, Inter-Am. Ct. H. R. (Series C) No. 104 (November 28, 2003), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_ 104​_ing​.pdf. 88 Baena Ricardo et al. v. Panama. Competence, Judgment, Inter-Am. Ct. H. R. (Series C) No. 104 ¶102 (November 28, 2003), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/ seriec​_104​_ing​.pdf.

The Inter-American Court of Human Rights  83 Through its practice, the Court has developed a wide amount of case law on compliance.89 It routinely convenes hearings to examine the measures it ordered a state to adopt, reviewing information provided by both petitioners and state officials. However, here the principle of subsidiarity is also at stake since the IACtHR usually uses a unilateral language that does not help conciliate with the States that disagree with the decision of the IACtHR.90 As mentioned before, during the monitoring compliance of the case Río Negro Massacres v. Guatemala in 2014, the IACtHR declared Guatemala in desacato (contempt) and in breach of its international obligations such as the implementation of decision adopted by an international tribunal.91 Despite this, Guatemala has not made more open statements against the IACtHR decision. By 2021, the payment of reparation for material and immaterial damage is still pending for being fully implemented and the IACtHR has required the State to make efforts in that direction. In addition, in 2018, the politicians and parliamentarian representatives from Guatemala advanced some legal initiatives to modify the Guatemalan Amnesty Law (Bill 5377) and extend this benefit to the perpetrator of crimes such as torture, forced disappearance and genocide perpetrated during Guatemalan armed conflict. The eventual approval of this change in legislation would have hindered the implementation of 14 Guatemalan cases solved by the IACtHR. In 2019, during the monitoring compliance in Residents of the Village of Chichupac and Neighboring Communities, Municipality of Rabinal, Molina Theissen and 12 Other Cases  v.  Guatemala, the IACtHR requested Guatemala not to pass Bill 5377 because it would constitute a contempt (desacato) against the case law concerning the crimes against humanity that took place during the Guatemalan armed conflict. The IACtHR also invoked the right to access to justice of the victims as a reason that sustained its order.92 As shown in these two samples, one of the problems that stem from this selfcreated mechanism is that States may resist complying after the IACtHR has gone through the follow-up mechanism. In some cases, the States will ignore the Court while national tribunals will contradict the Court openly in other opportunities. Compliance will depend on the will of the judges or local authorities and their engagement with the views of the IACtHR. In this type of context, it

89 The Court has issued more than 200 “supervision stage decisions” and almost 350 merits judgments. Contesse, “Resisting the Inter-American Human Rights System,” 233. 90 Carlos Villagrán Sandoval and Fabia Fernandes Carvalho Veçoso, “A Human Rights’ Tale of Competing Narrative,” Revista Direito E Práxis 8, no. 2 (2017): 1603–1651. 91 Cases of the Río Negro Massacres and Gudiel Álvarez et al. v. Guatemala. Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of August 21, 2014. 92 Members of the Village of Chichupac and neighboring communities of the Municipality of Rabinal, Case of Molina Theissen and 12 other Guatemalan’s Cases v. Guatemala. Provisional Measures and Monitoring Compliance with Judgment. Order of the Court, “Resuelve”¶ 2 (Inter-Am. Ct. H. R. March 12, 2019). https://www​.corteidh​.or​.cr​/docs​/supervisiones​/ aldeachichupac​_12​_03​_19​.pdf.

84  The Inter-American Court of Human Rights seems relevant the IACtHR starts introducing changes that reframe the scope of its supervisory jurisdiction.93 As mentioned in the other sections, scholars would concretely suggest that the IACtHR engages with the principle of subsidiarity and adopt a more deferential approach towards the reparations it orders and the way it conducts the monitoring compliance proceeding. A deferential commitment would also require the IACtHR to engage with more systematic and predictable rules for the follow-up and monitoring of compliance.

3. Control of conventionality, general effects and Inter-American Corpus Juris The concept of control of conventionality is central to the discussion on the legitimacy of the IACtHR. Chapter 5 will discuss how this concept in itself has been shaped in parallel to a national law concept such as the control of constitutionality. Chapter 5 will also analyse the consequences of using this parallel in the Inter-American System of Human Rights. As a concept created by the Court, it refers to the exercise of assessing the compatibility of national legislation of ACHR state members with the standards of human rights built by the Court through its contentious and advisory jurisdiction. This judicial creation is another proof of the activism of the Court in building concepts that might clash with some tenets of a more traditional understanding of international obligations, that is, they stem from states’ consent. Since the creation of the concept in 2006 in the case Almonacid Arellano v. Chile, the Court has referred to it consistently. This consistency has triggered its study in a large amount of publications in Latin America.94 Such studies have addressed the legitimacy of the Court to create this type of concept, but also to build arguments that support this type of practice. In the case law of the Court and the literature concerning control of conventionality, the concept is defined primarily as local judicial authorities’ obligation to carry out control of conventionality of local norms when they make decisions in exercise of their judicial function. Indeed, Ramírez has described control of conventionality in analogical terms to the control of constitutionality. Especially in the case law for Tibi v. Ecuador, Ramírez defined control of conventionality as a competence the IACtHR exerts in similar terms to a constitutional court. According to the former judge, if a constitutional tribunal examines acts or legislation with a general scope, in light of the principles and norms of constitutions, the IACtHR similarly analyses acts and legislation in connection with the legal standards, principles and values of the treaties on which it bases its adjudicatory jurisdiction.95

93 Contesse, “Resisting the Inter-American Human Rights System,” 234–235. 94 See Chapter 4. 95 Tibi v. Ecuador. Preliminary Objections, Merits, Reparations and Costs, Judgment, InterAm. Ct. H. R. (Series C) No. 114 ¶ 3 (September 7, 2004) (Separate concurring opinion of the Judge Sergio García Ramírez), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/ seriec​_114​_ing​.pdf.

The Inter-American Court of Human Rights  85 Yet the control of conventionality is also applied by the Court in the exercise of its own jurisdictional and advisory competences. As for the object of this book, this section will focus on the practice of the Court in applying the control of conventionality itself. Overall, the control of conventionality at the Inter-American level reminds the idea of a control of constitutionality. That is, this figure implies that the judge will be analysing the compatibility of a national norm with the ACHR and the Inter-American standards of human rights protection. Indeed, in 2010, Judge Eduardo Ferrer Mac-Gregor made an analogy between control of conventionality and control of constitutionality. According to his statements, the IACtHR has carried out “concentrated conventionality control” since its very first judgments, examining the actions of the state, in each particular case, in light of the Convention. In his concurring opinion on the case Cabrera García and Montiel v. Mexico, the judge also stated that control of conventionality was a sort of vertical power that emerged from the Court’s condition as final interpreter of the ACHR.96 However, the idea of controlling norms and ordering their modification at an international level is not a recent practice that comes along with the case Alomancid Arellano. It was already implicit in the practice of the IACtHR through its exercise of jurisdiction since the early 2000s, as in Barrios Altos v. Peru and The Last Temptation of Christ v. Chile. In both cases, the Court exerted control of conventionality to analyse the local legislation concerning amnesty laws and prior censorship. Moreover, through the application of the control of conventionality, the Court has controlled the conventionality of constitutional clauses and ordinary legislation in decisions such as The Last Temptation of Christ v. Chile, Yatama v. Nicaragua, Boyce v. Barbados and Cabrera García Montiel, among others. For example, in The Last Temptation of Christ v. Chile, the IACtHR analysed Clause 19.12 of the Constitution of Chile, which establishes prior censorship in movie production. In determining the acts of the executive, legislative and judicial powers, that constitutional clause prevented the exhibition of the movie The Last Temptation of Christ. The IACtHR said that by maintaining cinematographic censorship in the Chilean legal system, the state failed to comply with its obligation to adapt its domestic law to the ACHR and thus make effective the rights embodied in that treaty. It determined that Chile had breached Articles 2 and 1(1) of the ACHR. It ordered the state to amend its Constitution and other domestic law, within a reasonable time period, to eliminate prior censorship to allow exhibition of “The Last Temptation of Christ.”97

96 Cabrera García and Montiel-Flores v. Mexico. Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R (Series C) No. 220 ¶ 23 (November 26, 2010) (Concurring opinion of Ad-Hoc judge Eduardo Ferrer Mac-Gregor), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_220​_ing​.pdf.  97 The Last Temptation of Christ (Olmedo-Bustos et al.) v. Chile. Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 73 (February 5, 2001), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_73​_ing​.pdf.

86  The Inter-American Court of Human Rights In the case law for YATAMA v. Nicaragua, the Court controlled the conventionality of a constitution and electoral legislation. This case law is related to the exclusion of members of the indigenous regional political movement Yapti Tasba Masraka Nanih Asla Takanka (YATAMA) from participating as candidates in the 2000 municipal elections. The IACtHR examined Electoral Act No. 331 of 2000 and Article 173 of the Constitution of Nicaragua, which contained restrictions on the right to vote and the right to a judicial remedy stipulated by the ACHR (Articles 23 and 25, respectively). Nicaragua’s electoral legislation established that only political parties were allowed to participate in an electoral process, which prevented the participation of YATAMA that only had the status of a regional movement. For the IACtHR, establishing that all political movements must fulfil the status of a political party in order to run in the municipal elections was discriminatory against indigenous communities. Indeed, the Court stated that the legislation imposed on YATAMA candidates, a form of organisation alien to their practices, customs and traditions, negatively affected their participation in municipal elections.98 Therefore, the Court ordered the state to reform the requirements of the Electoral Act that prevented indigenous people and ethnic communities from participating effectively in the electoral process.99 Overall, the Court has applied this technique to control national legal norms constantly during the last decade. In tandem, the Court has also developed the argument that it is the ultimate interpreter of the ACHR.100 The latter idea helps strengthen the notion that the Court has the authority and legitimacy to control and order the modification of all types of national legislation including Constitutions. Being the last interpreter of the ACHR implies that the decisions of the Court provide standards to be followed not only by the condemned state, but also by all the States parties of the IACtHR. As described in the case of Almonacid Arellano v. Chile, the control of conventionality, in effect, involves the use of the IACtHR’s jurisprudence. As for Court interpretations, it has stated that according to the principle of effet utile, all state organs must guarantee compliance with conventional obligations and their effects in the design of domestic law. In the case of Gomes Lund v. Brazil, it asserted that this principle of effet utile involves taking into account the Court’s decisions.101 In the Cabrera García and Montiel v. Mexico case, the Court asserted that the region’s highest courts had referred to

 98 Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No 127 ¶ 218–219 (June 23, 2005), https:// www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_127​_ing​.pdf.  99 Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No 127 ¶ 258–259 (June 23, 2005), https:// www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_127​_ing​.pdf. 100 Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R.(Series C) No. 154 ¶ 124 (September 26, 2006), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_154​_ing​.pdf. 101 Case of Gomes Lund et al. (“Guerrilha Do Araguaia”) v. Brazil. Preliminary Objections, Merits, Reparations, and Costs, Judgement, Inter-Am. Ct. H. R.(Series C) No. 219 ¶ 176–

The Inter-American Court of Human Rights  87 and applied conventionality control taking into account Court’s interpretations. It referred to the decisions of the Constitutional Chamber of the Supreme Court of Justice of Costa Rica, the Constitutional Court of Bolivia, the Constitutional Court of Peru and others to show how these tribunals have used the interpretations that the IACtHR has built in the exercise of its jurisdiction.102 Also, in line with the self-created doctrine of the ultimate interpreters of the ACHR, the Court has developed the concept of “Inter-American Corpus Juris”103 to encompass the different instruments of the IASHR and the interpretations of the Court. The use of this category reveals the Court’s attempts to give flexibility to the traditional understanding of international legal obligations.104 This Corpus Juris includes the Inter-American Convention on Forced Disappearances, the Inter-American Convention to Prevent and Punish Torture and the Convention of Belém do Pará. Thus, the Court’s interpretation of the content of those treaties is also binding for states.105 The notion of Corpus Juris is also understood as the control setting that states must use when they proceed with conventionality control. More specifically, in the case Rio Negro Massacres v. Guatemala, the Court referred to the Inter-American Convention on Forced Disappearances, the Inter-American Convention to Prevent and Punish Torture and the Convention of Belém do Pará as sources of the Inter-American Corpus Juris.106 In the Court’s view, these treaties and its own interpretation that constitute the Inter-American

177 (November 24, 2010), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_ 219​_ing​.pdf. 102  Cabrera García and Montiel-Flores v. Mexico. Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R (Series C) No. 220 ¶ 225–232 (November 26, 2010) https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_220​_ing​.pdf. 103 Judge Cancado Trindade introduced the term in 1999 in his separate opinion to the case Blake v. Guatemala. Blake v. Guatemala. Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 48. (January 22, 1999) (Separate opinion of Judge Antonio Cançado Trindade), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_48​_ing​.pdf. The concept of Corpus Juris was also included in Advisory Opinion OC-16/99 to define it “as a set of international instruments of varied content and juridical effects (treaties, conventions, resolutions and declarations). Its dynamic evolution has had a positive impact on international law in affirming and building up the latter’s faculty for regulating relations between States and the human beings within their respective jurisdictions.” The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H. R. (Series A) No.16 ¶ 115 (October 1, 1999), https://www​.corteidh​.or​.cr​/docs​/opiniones​/seriea​_16​_ing​.pdf. 104 The use of the idea of Corpus Juris is not a coincidence, but intentional. Regarding the medieval origins of the notion of Corpus Juris, see: Pablo Contreras, “Notas Sobre El Corpus Juris Interamericano,” in Control De Convencionalidad, Corpus Iuris Y Ius Commune Interamericano, eds. Humberto Nogueira and Gonzalo Aguilar (Santiago: Triángulo, 2017). 105 Case of Gudiel Álvarez et al. (“Diario Militar”) v. Guatemala. Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 253 ¶ 300 (November 20, 2012), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_253​_ing​.pdf. 106  Río Negro Massacres v. Guatemala. Preliminary Objection, Merits, Reparations, and Costs. Judgment, Inter-Am. Ct. H. R. (Series C) No. 250 ¶ 222–224 (September 4, 2012), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_250​_ing​.pdf.

88  The Inter-American Court of Human Rights Corpus Juris must be used to establish the content and scope of the rights recognised in the ACHR.107 These three doctrines or concepts created by the Court throughout the judicial practice of interpretation have also triggered the reaction of Latin American states. It has been mentioned above in the case Gelman v. Uruguay and the reaction of the Uruguayan Supreme Court against the decision of the IACtHR that declared the unconventionality of the Uruguayan amnesty law. A similar situation stems from the case Artavia Murillo v. Costa Rica, relating to Costa Rica’s prohibition on the practice of in vitro fertilisation (IVF) since 2000. This prohibition rests on the decision of the Constitutional Chamber of the Costa Rica Supreme Court of Justice, in which it held that IVF violated the right to life of fertilised embryos. The IACtHR reviewed the arguments used by the Chamber, especially its interpretation related to human rights treaties to support the prohibition of IVF. In that sense, the Court considered that those instruments did not have any special content oriented to protect the right to life in its preconception stage. According to the Court, the Chamber had overlooked current standards on the protection of the right to life. For the IACtHR, the right to life has evolved in a direction that implies that embryos should not be considered in the same way as human beings. The support used by the Court was a comparative analysis with the standards of the universal and European system of protection of human rights. The IACtHR concluded that the Chamber’s interpretation related to the protection of the right to life of embryos constituted an act of discrimination against people who are unable to reproduce and also a severe limitation on the right to life and intimacy. Consequently, the Court ordered Costa Rica to adopt measures to ensure the annulment of legislation prohibiting IVF so that those who wish to use this assisted reproduction technique may do so without encountering any impediments.108 In 2015, the Supreme Court of Costa Rica declared the unconstitutionality of the IVF in an executive decree passed by the Executive Branch, in compliance with the Court’s decision. The Chamber annulled the decree because of the possible limitations IVF implies for the right to life. It held that restrictions on human rights are a matter of Congress’s legal reservation.109 During the compliance supervision, the IACtHR reacted aggressively and stated that the Supreme Court was obliged to comply with the Artavia Murillo decision. It argued for making the case law enforceable, regardless of the application of the proper legal proceedings for the implementation of IVF. The Court

107  Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment, Inter-Am. Ct. H. R. (Series C) No. 209 ¶ 146 (November 23, 2009), https://www​. corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_209​_ing​.pdf. 108 Case of Artavia Murillo et al. (in Vitro Fertilization) v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 257 ¶ 336 (November 28, 2012). 109  Resolución Nº 2015–15725 (2015).

The Inter-American Court of Human Rights  89 found that the Chamber had the opportunity to make the guarantees of non-repetition ordered effective while it solved the action of unconstitutionality against the decree, or while it solved individual petitions (amparo) concerning the application of IVF. More recently, it seems the Court has chosen certain cases to moderate its vertical approach to the relationship with local authorities and their obligation to apply the control of conventionality at the local level. In 2018, the Court conducted a monitoring compliance proceeding of Cantuta v. Peru and Barrios Altos v. Peru. The Court dealt with the request of the victims to overturn a decree from 2017 that provided humanitarian pardon to the former president Fujimori’s who was sentenced to 25 years in prison for his role in crimes against humanity under his government’s command. In the view of the victims, the pardon decree that favoured Fujimori was an open breach of the above-mentioned decisions in which the IACtHR declared the invalidity of the Peruvian amnesty laws. The IACtHR declined to exert conventionality control over the pardon decree that benefited Fujimori. Still, it ordered the Peruvian jurisdiction to exercise conventionality control over this pardon.110 Indeed, the Court established the criteria Peruvian authorities should follow when carrying through the pardon decree’s conventionality test. Concretely, it asked the authorities to consider the viewpoint the IACtHR expressed in the judgment. In the opinion of the IACtHR, the sentences and convictions imposed for crimes such as enforced disappearances and others covered by international criminal law cannot be pardoned or reduced by States.111 The IACtHR also stated that the Peruvian State must analyse whether the presidential pardon was an obstacle to the State’s duty to investigate, prosecute and convict perpetrators of human rights violations.112 Although this case could be framed as a sample of a deferential approach adopted by the IACtHR, Contesse states that this deference exercise that favours the Peruvian authorities was constrained. The deference was framed under the terms of the IACtHR and its standards. In practice, Peru did not have other alternatives than to follow the IACtHR perspective.113

110 Case of Barrios Altos and Case of La Cantuta v. Peru. Monitoring Compliance with Judgment. Order of Court, “Considerando” ¶ 45 (Inter-Am. Ct. H. R. May 30, 2018). Also see: Leiry, Cornejo Chavez, Juan-Pablo Pérez-León-Acevedo, and Jemima García-Godos, “The Presidential Pardon of Fujimori: Political Struggles in Peru and the Subsidiary Role of the Inter-American Court of Human Rights,” The International Journal of Transitional Justice 13, no. 2 (2019): 328–348. 111 Case of Barrios Altos and Case of La Cantuta v. Peru. Monitoring Compliance with Judgment. Order of Court, “Considerando” ¶ 45 (Inter-Am. Ct. H. R. May 30, 2018), https://www​.corteidh​.or​.cr​/docs​/supervisiones​/barriosaltos​_lacantuta​_30​_05​_18​.pdf. 112  Case of Barrios Altos and Case of La Cantuta v. Peru. Monitoring Compliance with Judgment. Order of Court, “Considerando” ¶ 54–57 (Inter-Am. Ct. H. R. May 30, 2018). 113 Jorge Contesse, “Case of Barrios Altos and La Cantuta v. Peru” The American Journal of International Law 113, no. 3 (2019): 574.

90  The Inter-American Court of Human Rights Overall, it seems that the IACtHR has moderated its vertical authority in some cases throughout the last years. Nonetheless, the position of the Court towards its practices continues going in the same direction. It continues exerting a hierarchical mandate over Latin American states that can be intrusive and transform the understanding of the principle of subsidiarity in the region. For example, the advancement towards the direct protection of social rights confirms this tendency of the Court and its members. It seems the Court has not decided to adopt clear deference criteria that serve as a rule it must follow in its case law. Instead, it prefers using cherry-picking techniques that allow choosing arbitrarily the cases in which it is preferable to adopt a more deferential perspective than a hierarchical one, or provide an interpretation that benefits the States rather than its image of ultimate interpreter of the ACHR.114 Beyond the concerns on the relation of the IACtHR with the States, it is essential to highlight that the practices of this tribunal are not just anecdotic events of a regional human rights tribunal. Indeed, studying the Court’s practice helps create an understanding of how it has developed a self-image in which it is the agent with the last word on protecting human rights, necessarily providing for and contributing to the transformation of the human rights situation and democracy in the region. Highlighting the self-image of the IACtHR as one of supraconstitutional nature is essential to show how it directly influences the current legal discourses on the legitimacy of the IACtHR. The legal discourses and the IACtHR’s practices contribute to creating an understanding of the law and the role of international tribunals as transformative and progressive in themselves. While showing the interaction between the two of them, the book will uncover how they both work as ideological tools that shape the image of lawyers as agents with the power to transform the world and govern not only States but also ordinary people.

114 Villagrán Sandoval and Veçoso, “A Human Rights’ Tale.”

4

Two competing legal streams on the legitimacy of the InterAmerican Court of Human Rights

Introduction This chapter aims to introduce two competing approaches—constitutional and state-centric approaches—to the legitimacy of the IACtHR. These categories include different groups, and the categorisation is not exhaustive or exclusive; it is more an ideal typification or guiding distinction.1 It looks at the practice and understanding of lawyers and academics, with the aim of providing insights into the way in which the Court is portrayed and their conception of human rights. It shows the main ideas that the two streams promote, and how they help build an image of a regional legal order in which the Court apparently plays a pivotal role.2 In that sense, this chapter sets aside the idea of law as a discipline exclusively related to jurisprudence or legal norms. The first part of the chapter refers to the constitutional perspective and the second part describes the state-centric approach. The study of these two legal approaches is important because to varying degrees law makes the world, in that it helps form understanding and beliefs that make the world unfold in certain ways and not others. Law provides categories through which we order our understanding of social life and the legal order,3 but—like a state—it is also the behaviour and discourse of the lawyers involved in making law and doctrine. To a certain extent, then, legal scholars discussing the legitimacy of the Court are lawmakers, and their understanding of law and the role of the judiciary impacts the way in which legal experts and even advocacy networks approach law. Legal scholars of both streams have the capacity to influence, for example, how we understand human rights, how legal actors decide to approach to litigation

1 Johan Karlsson Schaffer, Democrats without Borders: A Critique of Transnational Democracy (PhD diss., University of Gothenburg, 2008), 22. In this sense, Schaffer points out that “realexisting arguments may float closer to or farther away from the ideal-typical abstractions, being more or less aligned with them without necessarily perfectly matching the one or the other.” 2 Alexandra Huneeus, “Constitutional Lawyers and the Inter-American Court’s Varied Authority,” Law and Contemporary Problems 79, no. 1 (2016): 179–207. 3  Nicholas Blomley, “Flowers in the Bathtub: Boundary Crossings at the Public–Private Divide,” Geoforum 36, no. 3 (2005): 281–296.

DOI: 10.4324/9781003200888-5

92  Two competing legal streams at the international level and whether it matters more to promote compliance locally or to build legal or moral reasons for the expansionist rule of the IACtHR. In any case, the doctrine and legal analysis they have produced in the past decade cannot be overlooked, especially because self-criticality is essential among legal professionals to avoid law becoming an end in itself instead of a tool for transformation and emancipation. The two sections of this chapter rest on three transversal concepts present in the discourses concerning the democratic legitimacy of the IACtHR: analogy, subsidiarity and democratic transformation. Those are the leading premises for portraying or supporting the way in which top-down and bottom-up approaches understand or discuss the legitimacy of the Court. They will be referred to briefly throughout the description of the two streams object of analysis,4 but a proper explanation and analysis of them is carried out in Chapters 5 and 6.

1. On the discourses on the legitimacy of the Court and the actors who drive them This chapter is driven by the idea of the existence of two competing legal streams discussing the legitimacy of the Court. These two streams are composed of legal actors, that is, lawyers who perform as legal scholars (professors at universities), as judges of constitutional tribunals, as professional experts in other branches of government and as IACtHR judges.5 This chapter defines the two approaches as legal epistemic communities performing as actors that spread, reinforce and reproduce ideology in two senses. The concept of the epistemic community was developed by Haas to explain how decision-makers and politicians interact with scientific and professional communities that provide expert knowledge related to a topic.6 It implies that these scientific and professional communities share ideas and resources to promote themselves (in terms of reputation and knowledge). More specifically, Haas stipulates that an epistemic community combines various characteristics: principled beliefs, shared values emerged from their analysis of practices, shared notions of validity for promoting and validating knowledge in the domain of expertise, a

4 The possible commonalities and disagreements shown in this chapter are a construction that emerges from juxtaposing these two particular approaches. 5 Some former judges of constitutional tribunals in Latin America seek to be appointed as IACtHR judges. Entering the networks of legal scholars discussed here can be a strategy to widen these judges’ contacts and connect with privileged centres of knowledge in Europe. 6 The concept of epistemic community has origins in that of “episteme,” as widely used by Foucault; it was first used in 1975 by Ruggie in reference to Foucault. John Gerard Ruggie, “International Responses to Technology: Concepts and Trends,” International Organisations 29, no. 3 (1975): 557–583; Mai’A K. Davis Cross, “Rethinking Epistemic Communities Twenty Years Later,” The Review of International Studies 39, no. 1 (2013): 137–160.

Two competing legal streams  93 standard policy enterprise associated with problems to which their professional competence is devoted to address or to solve.7 Epistemic groups can be located institutionally among people working at the same organisation (university), network of universities or bespoke centre. It is also common that networking is enabled through national international associations, special interest groups and journals. The two legal streams broached in this chapter could be described as an epistemic community because they are not necessarily in real opposition and their dynamics mean they are in constant dialogue and share similar academic spaces. In the first sense, they portray an international institution (like the Court) as an actor with constitutional powers that becomes the exclusive actor promoting social transformation through law. The focus on the role of the judiciary as a pivotal actor of change masks the fact that for both legal streams, people become passive actors perpetually in need of help provided by international institutions or the democratic state. Secondly, the ideology they reproduce is related to the idea of progress with regard to the notions of constitutionalism, democracy and human rights that frame the discussions on the legitimacy of the Court. As will be shown in Chapters 5 and 6, these concepts are portrayed as natural, as contingent. Thus, scholars of both perspectives obscure the radical nature of human rights and democracy, and contribute to shaping relations of domination between states, economic powers and the excluded. As mentioned, this book focuses on the role of legal experts in creating law and profiling the character of institutions like the IACtHR. However, its path is different because it upholds the notion that law is not entirely arbitrary or indeterminate. It is not possible to deny that the legal scholars that are part of the two legal streams discussed here may have personal interests or (by nature) act under a power-seeking logic when they engage in projects related to the legitimacy of the Court. In the same way, the behaviour of the Court and its activism—the basis for discussions on its legitimacy—may be influenced by the logic of power seeking on judges’ part.8 Yet personal interests cannot be explained outside of a structure, a larger system that gathers social, cultural, economic and political dimensions and relations. Alter and Helfer argue that the support that external actors—including advocacy networks, national judges, and national administrators—give to the international judiciary, rather than theories about its inherent (power-seeking) nature, explain expansionist law-making. For example, in the case of the Andean Tribunal of Justice (ATJ), Helfer and Alter explain that lawyers who worked at intellectual property agencies created in the 1990s built a regional network to

7 Peter M. Haas, “Introduction: Epistemic Communities and International Policy Coordination,” International Organization 46, no. 1 (1992): 1–35. 8 Karen J. Alter and Laurence R. Helfer, “Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice,” International Organization 64, no. 4 (2010): 563–692.

94  Two competing legal streams share information and build standards to resolve common legal problems. The ATJ was the actor that developed procedures and rules that helped administrative agencies solve legal issues around private property, but this rule creation was not a unidirectional process. Helfer and Alter indicate that the agencies also influenced, through their preferences and interpretations of intellectual property norms, the content the ATJ has given the Andean communitarian rules on intellectual property.9 Turning back to the object of this book, one cannot understand the decisions of the IACtHR without taking into account what the two discourses on its legitimacy think about its case law and how it may reproduce the ideas built by those legal scholars. For that reason, the relationship between legal scholars and the Court is active and bidirectional, and that together they build a “shared legal knowledge or mindset” that goes beyond personal interests.10 Collective constructions of ideas exist whenever people or actors act together. In that sense, the two legal strands cannot be understood purely as the summative or aggregative views of people with personal and egoistic intentions. They both are groups or communities because they share common knowledge about law, but most importantly because they have made decisions and taken actions in relation to this common knowledge. They continually reproduce and share their ideas about the IACtHR’s legitimacy with Latin American Legal scholars. The act of reproduction through publishing and organising seminars and conferences is done regardless of these legal scholars’ personal beliefs and interests. Group intentions exist only in action; action is what makes these legal scholars a group. Since the two legal streams are involved in reproducing debates on the legitimacy of the Court, they carry out collective actions that do not necessarily correspond with their personal preferences.11 Any discourse on the legitimacy of the IACtHR is not neutral, and therefore it is necessary to point towards the ideological and political bias of the supposedly neutral ideas that support them. Indeed, a social system consists of material conditions, interests and ideas.12 Thus, even when legal scholars pursue their professional interests (projects), the private beliefs and knowledge they use to create or give content to law are not disconnected from abstract ideas—and those ideas too are shaped by material conditions. Law making and the content of law are not then entirely contingent.

  9 Helfer Laurence and Karen J. Alter, “The Andean Tribunal of Justice and Its Interlocutors: Understanding the Preliminary Ruling Reference Patterns in the Andean Community,” New York University Journal of International Law and Politics 41, no. 4 (2009): 871–930. 10 For example, becoming a future judge of the Court, or to get the privilege to participate in important centres of production of knowledge like the Max Planck Institute. 11 Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999). 12 Wendt, Social Theory.

Two competing legal streams  95

2. The constitutional perspective In general terms, the constitutional approach to the legitimacy of the IACtHR portrays it as a hierarchical tribunal that has the last say concerning the protection of human rights, acts on behalf of people and has the power to transform the social and political context in Latin America. These features do not seem to conflict with the principle of subsidiarity, since the scholars promoting this perspective hold that the dynamics of the system rely on the existence of dialogue among judges.

2.1. Who drives the constitutional perspective? Several legal scholars and experts work with constitutional concepts or use them as devices to describe their understanding of the Court as a pivotal actor in the region. This section describes a group of scholars who are part of a project named Ius Constitutionale Commune en América Latina (ICCAL). The reason for attending to this particular group is its increasing relevance and presence in the region. Their project is driven by the Max Planck Institute of Comparative Public Law and International Affairs (Heidelberg, Germany) jointly with the Instituto de Investigaciones Jurídicas from the Universidad Autónoma de Mexico. Around them are other centres or academic associations13 whose members are primarily constitutional lawyers who were formerly judges of constitutional tribunals or the highest courts in the Latin American states. The ICCAL project is described as a new approach to constitutionalism in the region. Bogdandy writes that ICCAL has an approach to law that entails positive law and legal discourses connected to it. It rests on the premise that law has a particularly transformative power for Latin societies. It has a sharp emphasis on rights and rejects the centralisation of power (that is, strong presidentialism).14 According to its page on the Max Planck Institute website, ICCAL’s objectives are to promote respect for human rights, democracy and the rule of law and to guide the opening of national legal orders to international law and the configuration of effective and legitimate international institutions. The project rests on the idea of a ius commune emerging from the dialogue between judicial authorities and from the openness of Latin American states’ constitutions to receiving the contents of the ACHR. The existence of a ius commune also drives the idea of constitutional law’s capacity to transform the local and political context—that is to say, it fits with the notion of transformative constitutionalism. In general, that project refers to the existence of a common constitutional law and rests on constitutional analogies to portray or to justify the notion

13 Such as the Instituto Iberoamericano de Derecho Constitutional, a Latin American association composed of various national associations of constitutional law. 14 Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan, and Ximena Soley, Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford: Oxford University Press, 2017).

96  Two competing legal streams of control of conventionality, or the notion of the ACHR and the Court’s case law as the legal basis of the ius commune. This explanation from Bogdandy, director of the Max Planck Institute, indicates what the core of ius commune implies: The existence of a Ius Constitutionale Commune becomes most palpable in the interaction of domestic authorities with the Inter-American Court. Most states in the region have recognized the supremacy of international human rights law in their domestic legal orders—either through express constitutional provisions or by constitutional adjudication. Moreover, the InterAmerican Court has developed the legal doctrine of conventionality control according to which all domestic authorities are under the obligation to determine whether their acts are in conformity with the American Convention and the Court’s interpretation of it. As a result of inter-American jurisprudence states have repealed and amended laws, including the Constitution; national Courts, especially constitutional courts, have relied on inter-American case law in salient cases; and administrative agencies have crafted countless policies to comply with far-reaching reparations. There is little doubt that this system constitutes the normative core of the Ius Commune.15 These main tenets of the ICCAL project are reproduced in scholarly publications around the Latin American region. The Max Planck Institute and the Instituto de Investigaciones Jurídicas have promoted the publication of scholarly literature in English (translated into Spanish) or in Spanish or Portuguese16 that refers to the existence of a ius commune in Latin America. Since 2010, the Instituto de Investigaciones Jurídicas has published several books introducing the main features of the ICCAL project. Two of these titles are Ius Constitutionale Commune en América Latina: Rasgos, Potencialidades y Desafíos17 and Soberanía y Estado abierto en América Latina y Europa.18 In 2017, the Max Planck Institute jointly with Oxford University Press released a book on ICCAL’s emergence—a collective publication that introduces the tenets and perspective of the project to the English-speaking legal community.19 Another book the two institutions have published in connection with ICCAL is Bogdandy’s Hacia un nuevo derecho

15 Armin von Bogdandy, “Ius Constitutionale Commune En América Latina: Observations on Transformative Constitutionalism.” AJIL Unbound 109 (2015): 109. doi:10.1017/ S2398772300001264. 16 Armin von Bogdandy, Flávia Piovesan, and Mariela Morales Antoniazzi, Direitos Humanos, Democracia E Integração Jurídica. Avançando No Diálogo Constitucional E Regional (Rio de Janeiro: Lumen Juris, 2011). 17 Héctor Felipe Fix-Fierro, Armin von Bogdandy, and Mariela Morales Antoniazzi, Ius Constitutionale Commune En América Latina. Rasgos, Potencialidades Y Desafíos (México, Instituto de Investigaciones Jurídicas, Universidad Aútonoma de México, 2016). 18 José María Serna de la Garza and Armin von Bogdandy, Soberanía Y Estado Abierto En América Latina Y Europa, among Others (México: Instituto de Investigaciones Jurídicas, 2014). 19 Bogdandy, Ferrer Mac-Gregor, Morales Antoniazzi, Piovesan, and Soley, Transformative Constitutionalism.

Two competing legal streams  97 público: Estudios de Derecho Público Comparado, Supranacional e Internacional,20 the Spanish translation of The Exercise of Public Authority by International Institutions: Advancing International Institutional Law.21 Bogdandy and Venzke’s In Whose Name was also published in Spanish by Universidad Externado de Colombia in 2016. As the publication of these two latter titles suggests, the premises that ground the ICCAL project are directly connected with the concepts that Bogdandy has developed, namely the international judiciary’s public authority and a transnational democracy that grounds this authority. Bogdandy is the leader of ICCAL, and ICCAL was conceived among the research guidelines of the Max Planck Institute, of which he is director. The ICCAL project also fits with the proliferation of Latin American constitutional lawyers’ ideas concerning the role of the judiciary in the region’s democratised states. In the Latin American context, a particular faction of constitutional lawyers debates whether local courts and the IACtHR should perform an activist role in relation to politics, whether the courts hold a counter-majoritarian role in relation to political branches. Arguably, then, ICCAL’s discourse related to the legitimacy of international adjudication complement studies on constitutional courts’ legitimacy.

2.2. The constitutionalisation of international law The phrase “constitutionalisation of international law” has become a standardised term among legal communities working in the fields of constitutional law and human rights law in the Latin America.22 ICCAL and the project of international public authority that the Max Planck Institute promotes are directly linked to the project of global constitutionalists.23 The Latin American grasp of constitutionalisation also includes a particular perspective that comes from the specific features of the judicial culture—or the features attributed to the judge—in Latin America. In a nutshell, the scholars of global constitutionalism make use of constitutional analogies to describe international law’s progress and maturation as opposed

20 Armin von Bogdandy, Hacia Un Nuevo Derecho Público. Estudios De Derecho Público Comparado, Supranacional E Internacional (México: Instituto de Investigaciones Jurídicas, Universidad Autónoma de México, 2011). 21 Philipp Dann, Matthias Goldmann, Rüdiger Wolfrum, Armin von Bogdandy, and Jochen Bernstorff, The Exercise of Public Authority by International Institutions (Berlin, Heidelberg: Springer Berlin / Heidelberg, 2009). 22 Laura Clérico, Griselda Capaldo, and Jan Sieckman, Internacionalización Del Derecho Constitucional, Constitucionalización Del Derecho Internacional (Buenos Aires: Eudeba, 2011). 23 A mentioned in Chapter 1, the project of public international authority says its tenets stem from the global constitutionalist and global administrative perspectives. Armin von Bogdandy, Matthias Goldmann, and Ingo Venzke, “From Public International to International Public Law: Translating World Public Opinion into International Public Authority,” European Journal of International Law 28, no. 1 (2017): 115–145.

98  Two competing legal streams to the politics, power and sovereignty that traditionally governed it.24 Indeed, Bianchi argues that in international law, analogies are used by international lawyers to provide credibility to the discipline through temporary—eventually permanent—epistemological foundations.25 These analogies built on institutions of constitutional law are present in arguments referring to the idea of a global or international constitution or to a ius constitutionale commune in Latin America. In the international field, some strands have used the term “constitutionalism” to develop ideas concerning the possibility that the international community could create a written or material constitution that refers to a set of common values, procedures and rules. When constitutionalists refer constitutionalism, they try to construct the basis of a new legitimacy of international in which state sovereignty is complemented by other guiding principles, such as respect for human rights, human dignity, human security, global common interest, rule of law and democracy.26 For the international constitutional strand, the principle of consent of states as the main source of international law’s rules has been eroded by the rise of common global interests that do not admit the requirement of reciprocity.27 Global constitutionalists also support the proliferation of international courts and tribunals, and develop the idea that these international institutions should carry through judicial review mechanisms as an effective way of constraining power.28 As Klabber writes, “judicial review aims to tame the beast of politics: it sends the message that no matter what politics may decide, it cannot overstep the bounds of law.”29 This understanding of global constitutionalism has a point of encounter with one current understanding of constitutionalism that has arisen in the Latin American context. Huneeus refers to a concept dubbed “neo-constitutionalism,” which has become object of study among constitutional scholars as a theoretical frame for portraying the IACtHR as a constitutional tribunal.30 The term neo-constitutionalism has been coined to refer to constitutional processes and reforms that have taken place relatively recently in Latin America. More specifically, it has been used to present the period of constitutional reforms

24 Andrea Bianchi, International Law Theories: Different Ways of Thinking about International Law (Oxford: Oxford University Press, 2016), 46–51; Anne Peters, “Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures,” Leiden Journal of International Law 19, no. 3 (2006): 579–610. 25 Bianchi, International Law Theories, 46. 26 Bianchi. 27 Peters, “Compensatory Constitutionalism.” 28 Bianchi. 29 Jan Klabbers, “Setting the Scene,” in The Constitutionalization of International Law, eds. Jan Klabbers, Anne Peters, and Geir Ulfstein (Oxford: Oxford University Press, 2009), 27. 30 This period of constitutional change started in the mid-1980s: Brazil in 1988, Colombia in 1991, Paraguay in 1992, Ecuador in 1998 and 2008, Peru in 1993, Venezuela in 1999 and Bolivia in 2009, among others. Countries such as Argentina (1994), Mexico (1992) and Costa Rica (1989) introduced major reforms to their existing constitutions.

Two competing legal streams  99 as an attempt at “transformative” political will in the region.31 Indeed, the neo-­ constitutionalist approach emphasises the recognition of rights in constitutions. It is argued that it privileges principles over rules, and rights have a strong axiological weight. In the neo-constitutional logic, the legal system passes through a process of constitutionalisation that means it is completely “impregnated by constitutional standards.” Constitutions become “extremely invasive and … capable of conditioning both legislation and jurisprudence and doctrinal style.”32 Likewise, neo-constitutionalists promote judicial activism in the interpretation of rights and rights-related constitutional clauses.33 They aim to overcome an undue formalism in the Latin judiciary and insist on the judicial review of rights and rights-based litigation.34 They thus form an image of local tribunals as holding wide interpretative parameters to deal with constitutionalised values: A second characteristic of neo-constitutionalism is that, as a result of the foregoing, the jurisprudential practice of constitutional courts undergoes a significant change. Judges have to start performing their functions under new interpretive parameters. Their hermeneutic duties become more complex, to the extent that they have to start working with constitutionalized “values” that must be applied to specific cases in a justified and reasoned fashion. In other words, what neo-constitutionalism has introduced as a gradual innovation has something to do with a certain kind of unwritten judicial activism.35 Another aspect of the neo-constitutional perspective is defining the new constitutions as opened and pluralist.36 In one sense, that openness is related to the incorporation of international law, especially international human rights law. Indeed, the importance of international human rights law for neo-constitutionalists is directly connected to their strong attachment to constitutional rights. Following on from this idea of the legal systems’ openness, the constitutionali-

31 Huneeus, “Constitutional Lawyers.” 32 Felipe Curcó Cobos, “The New Latin American Constitutionalism: A Critical Review in the Context of Neo-Constitutionalism,” Canadian Journal of Latin American and Caribbean Studies / Revue canadienne des études latino-américaines et caraïbes 43, no. 2 (2018): 221. Quoting Ricardo Guastini, Estudios De Teoría Constitucional (México: Universidad Nacional Autónoma de México-Instituto de Investigaciones Jurídicas-Fontamara, 2007). 33 A strong connection to the work of Dworkin on the interpretation of rights, among others like Zagrebelsky and Alexy, The work of these authors has been used to support an activist role of the tribunals towards their activity of interpretation. Miguel Carbonell, Teoría Del Neoconstitucionalismo. Ensayos Escogidos (Madrid: Trotta-Universidad Nacional Aútonoma de México, Instituto de Investigaciones Jurídicas, 2007). 34 Huneeus, “Constitutional Lawyers.” 35 Curcó Cobos, “The New Latin American Constitutionalism,” 221. 36 Mariela Morales Antoniazzi, “El Estado Abierto Como Objetivo Del Ius Constitutionale Commune. Aproximación desde el Impacto De La Corte Interamericana De Derechos Humanos,” in Ius Constitutionale Commune En América Latina. Rasgos, Potencialidades y Desafíos, eds. Héctor Felipe Fix-Fierro, Armin von Bogdandy, and Mariela Morales Antoniazzi (México: Universidad Nacional Autónoma de México-Instituto de Investigaciones Jurídicas, 2014).

100  Two competing legal streams sation of international law that ICCAL has embraced implies the existence of a material regional constitution that encompasses regional values and is binding for all Latin American states. As mentioned in Chapter 3, the Court has referred to the ACHR and other treaties of the Inter-American System of Human Rights as a sort of material constitution. Likewise, if one follows the argument that supports Latin American tribunals’ judicial activism, it is possible to affirm that the neo-constitutional approach enhances arguments related to the interpretation and application of international human rights law by national and international tribunals as the main sources for developing the content of human rights. For ICCAL scholars, rather than focusing on theories of monism or dualism for incorporating treaties and international principles into national legal orders, one should look to the dialogue, interaction and contents of rights given by the international and local judiciary, especially by the IACtHR.37 This understanding of the constitutionalisation of international law in Latin America assumes that in practice local tribunals have begun to use the constitutional review proceeding as a mechanism of that judges use to interpret and directly apply international treaties ratified by the state.38 It promotes the term proceso de convencionalización (conventionalisation process) as a synonym for the constitutionalisation process,39 meaning the process whereby local legal orders are influenced, modified and shaped by the ACHR and the standards constructed by the IACtHR through its case law. It also refers to the progressive effectiveness or possible direct effect of human rights norms in local legal orders. In general, conventionalisation is linked to the idea that the IASHR and the case law of the Court play a pivotal role that may even change the content of the legal order beyond the will of the political branches, due to the power of human rights as universal values.

2.3. Supranationalisation I: the existence of a common Corpus Juris and bloc of conventionality According to the constitutional approach, the constitutionalisation of international law means the ACHR functions as a regional constitution that reflects the existence of a regional common law. Indeed, it is common for constitutional scholars to use the notion of either a bloc of conventionality or a bloc of constitutionality to refer to the ACHR and the interpretation of Court decisions as

37 Rene Urueña, “Luchas Locales, Cortes Internacionales. Una Exploración De La Protección Multinivel De Los Derechos Humanos En América Latina,” Revista Derecho del Estado, no. 30 (2013): 310–318. 38 Alexandra Huneeus, “Introduction to Symposium on the Constitutionalization of International Law in Latin America,” American Journal of International Law. AJIL Unbound 109 (2015): 89. 39 Leonardo García Jaramillo, “De La ‘Constitucionalización’ a La ‘Convencionalización’ Del Ordenamiento Jurídico. La Contribución Del Ius Constitutionale Commune,” Revista Derecho del Estado, no. 36 (2016): 135.

Two competing legal streams  101 part of a material regional constitution. According to some of these authors, a bloc of constitutionality is a useful device that comprises the practice of the local authorities that position the ACHR as a norm of constitutional rank, regardless of its formal recognition in the legal order.40 The bloc of conventionality is a clear example of a constitutional analogy. According to Gongora, Bogdandy and Huneeus, in Latin America this notion comprises international norms that become part of the domestic legal order in substantive terms, even though they are not formally part of the Constitution.41 Thus, the use of bloc of constitutionality allows reference to human rights treaties as materially constitutional, despite their constitutional rank not being formally recognised by local legal orders. These authors justify the use of a bloc of constitutionality as an important tool for constructing a ius constitutional commune, especially because it will reflect a process of integration between international law and constitutional law.42 The use of the constitutional analogy goes further when scholars apply it to describe the set of treaties and case law that govern the Court’s rulings, also implying that the ACHR functions as a regional constitution.43 An illustration of this exercise of analogy is Ferrer Mac-Gregor’s work, which refers to the idea that the Inter-American Corpus Juris, that is to say, a real “block of conventionality,” comprises the basis for exerting control of conventionality.44 This statement is precisely linked with one of ICCAL’s premises concerning the constitutional bloc as a concept that captures the idea that national constitutional law and the relevant international law should jointly realise common guarantees.45 In the same way, the Inter-American Constitution contains the idea of the erga omnes effects of the Court’s case law. The majority of the literature concerning

40  Manuel Góngora-Mera, “La Difusión Del Bloque De Constitucionalidad En La Jurisprudencia Latinoamericana Y Su Potencial En La Construcción Del Ius Constitutionale Commune Latinoamericano,” in Ius Constitutionale Commune En Derechos Humanos En Latinoamérica, eds. Armin von Bogdandy, Mariela Morales Antoniazzi, and Eduardo Ferrer Mac-Gregor (México: Porrúa, 2013). 41 The notion a bloc of constitutionality is inherited from continental law; in France, Spain and Italy, the concept is related to the set of norms that conform to the parameter of control of constitutionality. Those norms include formal constitutions as well as other national legal norms that are substantially constitutional. 42 Góngora-Mera, “La Difusión Del Bloque De Constitucionalidad,” 176; Huneeus, “Constitutional Lawyers,” 186. 43 Mariela Morales Antoniazzi, “Interamericanización como mecanismo del Ius Constitutionale Commune En Derechos Humanos En América Latina,” in Ius Constitutionale Commune En América Latina. Textos Básicos Para Su Comprensión, eds. Armin von Bogdandy, Mariela Morales Antoniazzi, and Eduardo Ferrer Mac-Gregor (Querétaro: Instituto de Estudios Constitucionales del Estado de Querétaro, 2017), 435. 44 Eduardo Ferrer Mac-Gregor, “Conventionality Control the New Doctrine of the InterAmerican Court of Human Rights,” American Journal of International Law. AJIL unbound 109 (2015): 93–99. 45 Armin Von Bogdandy, “Ius Constitutionale Commune En América Latina: Una Mirada a Un Constitucionalismo Transformador,” Revista Estado de Derecho, no. 34 (2015): 11.

102  Two competing legal streams the general effects of the decisions and case law of the IACtHR46 support the arguments built by the Court more than constructing theoretical arguments on the subject. They particularly differentiate between the Court’s direct and indirect effects. Direct effects are related to the consequences of the case for the parties involved, that is to say, the responsible state and its authorities. Indirect effects (res interpretata) are explained as the efficacy of the case law beyond the parties involved. According to them, res interpretata help prevent future violations of human rights in the region, suggesting that local judges can detach themselves from the interpretation of the IACtHR only to provide a more progressive protection of the human rights in the ACHR.47 Furthermore, some authors who embrace the idea that the Court is the last interpreter of the ACHR have argued that erga omnes effects stem from the general obligations of international law recognised in Articles 1 and 2 of the ACHR.48 Others affirm that the erga omnes effects of the Court’s case law stem from the collective guarantee on the protection of human rights that ground the logic and nature of the Inter-American System of Human Rights.49 This collective guarantee implies that the states have a duty to prevent human rights violations; thereby, they have the obligation to apply the standards created by the IACtHR.50 In close connection to the doctrine of general effects, some authors of this strand provide arguments on the judiciary’s duty to interpret national legislation under the standards of a bloc of conventionality (interpretación conforme).51 The idea that the effects of the case law of the Court are general is also directly linked to the notion that the Court is the ultimate interpreter of a bloc of conventionality. The constitutional approach does not necessarily provide a clear explanation for profiling the Court in such a way. At best, this description ultimately

46 Juan Carlos Hitters, “Un Avance en el Control de Convencionalidad. (El Efecto ‘Erga Omnes’ De Las Sentencias De La Corte Interamericana),” Estudios Constitucionales 11, no. 2 (2013): 695–712; Eduardo Ferrer Mac-Gregor, “Eficacia de la Sentencia Interamericana y la Cosa Juzgada Internacional: Vinculación Directa Hacia Las Partes (Res Judicata) E Indirecta Hacia Los Estados Parte De La Convención Americana (Res Interpretata) (Sobre El Cumplimiento Del Caso Gelman vs. Uruguay),” in Estudios constitucionales 11, no 2, 641–694. 47 Ferrer Mac-Gregor, “Eficacia De La Sentencia Interamericana Y La Cosa Juzgada Interna­ cional.” 48 Hitters, “Un Avance en el Control de Convencionalidad,” 320. 49 Humberto Nogueira Alcalá, “The Conventionality Control by the States Part of the American Convention on Human Rights and Chilean Courts,” Revista de Derecho, no. 15 (2017): 43–200. 50 Nogueira Alcalá, “The Conventionality Control by the States,” 62. 51 Eduardo Ferrer Mac-gregor, “Interpretación Conforme Y Control Difuso De Convencionalidad: El Nuevo Paradigma Para El Juez Mexicano,” Estudios constitucionales: Revista Semestral del Centro de Estudios Constitucionales de Chile 9, no. 2 (2011): 130–131; Néstor Pedro Sagüés, “International Obligations and ‘Conventionality Control’,” Estudios constitucionales: Revista Semestral del Centro de Estudios Constitucionales de Chile 8, no. 1 (2010), 285–286.

Two competing legal streams  103 relies upon the constitutional analogy. To illustrate, Nogueira explains that the Court is the last interpreter of the ACHR because, in similar terms to constitutional tribunals, as it exerts its contentious and advisory competences, it interprets and provides content to the rights recognised in the different instruments of soft and hard law that are part of the IASHR.52

2.4. Dialogue and subsidiarity For the constitutional approach, the fact that the Court has the last say on protecting human rights in the region does not imply a conflict with the principle of subsidiarity. There are two reasons for which they do not see a conflict here. Firstly, the constitutional approach usually puts more emphasis on protecting rights than on the principle of subsidiarity. They usually develop general arguments to assert that the Court respects the competence of the states, but do not develop any deep meaning for subsidiarity in a human rights regime. Their understanding of the principle is very flexible, since they engage flexibly with the exhaustion of local remedies adopted by the Court since the beginning of its practice. As will be mentioned in Section 1.7, the scholars of this strand reject the margin of appreciation because they consider that protecting human rights prevails before principles of sovereignty or democracy. Again, however, they do not give examples in which the latter principles prevail; it seems they are empty concepts before the power of human rights. Secondly, although the constitutional perspective supports the premise that the Court is the judicial organ with last say on protecting human rights, it also argues in favour of inter-judicial dialogue between local judiciaries and the IACtHR. The notion of dialogue implies that there is no preconceived hierarchy between the parties. Aguilar, for example, asserts that the notion of ius commune interamericanum mirrors the dialogue or interaction between IASHR organs and local tribunals.53 Holding these two ideas together necessarily bring a sort of tension to the arguments the constitutional approach develops. This tension is present in the work of Acosta, for instance. On the one hand, she refers to the existence of dialogue in a context of multilevel constitutionalism.54 According to her, the notion of a ius constitutionale commune emerges from dialogue between constitutional judges and the IACtHR. Acosta explicitly

52 Humberto Nogueira Alcalá, “Diálogo Interjurisdiccional, Control de Convencionalidad y jurisprudencia del Tribunal Constitucional en Período 2006–2011,” Estudios Constitucionales 10, no. 2 (2012): 70. 53 Gonzalo Aguilar Cavallo, “Constitucionalismo Global, Control De Convencionalidad y el Derecho a Huelga en Chile,” ACDI: Anuario Colombiano de Derecho Internacional, no. 9 (2016): 158. 54 Paola Andrea Acosta Alvarado, Más Allá De La Utopía: Del Diálogo Interjudicial a La Constitucionalización del Derecho Internacional. La Red Judicial Latinoamericana Como Prueba Y Motor Del Constitucionalismo Multinivel (PhD diss., Universidad Complutense de Madrid, 2014), https://eprints.ucm.es/id/eprint/28119/1/T35645.pdf.

104  Two competing legal streams comments on the constitutional nature of the network of judges who promote human rights protection in a model of multilayered constitutionalism.55 However, her model still refers to the Court as part of a judicial network in which it plays a key role and holds a vertical relationship with local judicial bodies. Despite this vertical relationship, she explains that a multilayered system of human rights protection does not affect the principle of subsidiarity; on the contrary, the principle of subsidiarity is central to the foundations of the multilayered system.56 Acosta’s assertion of a vertical relation between the Court and local judges and her simultaneous claim that dialogue rests on the tenets of constitutional pluralism, enabling a horizontal interaction between the two jurisdictions, is self-contradictory.57 In the logic of pluralism, no defined final authority with the final say exists, yet Acosta sees the Court as the ultimate interpreter of the ACHR; another contradiction thus becomes visible. If, hypothetically, the notion of the Court as the organ with the last word on protecting human rights is an attribution that stems from the dialogue with local judges, how do the constitutionalists prove the existence of that dialogue? In general, articles on the existence of dialogue between the jurisdictions present the concept, but do not provide broad examples of it. Indeed, they tend to cite the incorporation of standards built by the Court in local judges’ legal reasoning as examples of dialogue. Likewise, it is common for the Court, in its practice, to refer to the inclusion of its own case law in local tribunals’ jurisprudence to affirm that its rules have general effects. In the same vein, my own earlier work cited dialogue between the Peruvian Constitutional Court and the IACtHR by describing how the Peruvian tribunal incorporated standards on the invalidity of amnesty laws to declare the constitutionality of reopening criminal proceedings against perpetrators of human rights violations in the La Cantuta and Barrios Altos cases.58

55 Acosta Alvarado, Más Allá De La Utopía, 242–243. 56 Paola Andrea Acosta Alvarado, “Ius Commune Interamericano. Brevísimas Notas sobre el Concepto de Diálogo,” in Ius Constitutionale Commune En América Latina. Textos Básicos Para Su Comprensión, eds. Armin von Bogdandy, Mariela Morales Antoniazzi, and Eduardo Ferrer Mac-Gregor (Querétaro: Instituto de Estudios Constitucionales del Estado de Querétaro, 2017), 373–375, 381. Acosta’s arguments rely heavily on literature concerning global governance. She explains, for example, that the Ius constitutionale commune is proof of the existence of a multilayered mode of governance in the IASHR. For Acosta, the ius commune mirrors common values that exist in international law and in Latin American constitutions. In her view, the multilayered mode of governance materialises through existing or eventual shared procedural avenues established at and among different layers of governance. 57 Acosta Alvarado, “Ius Commune Interamericano,” 383. 58 Natalia Torres Zúñiga, El Control De Convencionalidad: Deber Complementario Del Juez Constitucional Peruano Y El Juez Interamericano (Similitudes, Diferencias Y Convergencias) (Saarbrücken: Editorial Académica Española, 2013).

Two competing legal streams  105 A smaller number of articles referring to the notion of dialogue focus on a bottom-up perspective.59 Góngora-Mera refers to the standards of protection for displaced people built by the Constitutional Court of Colombia, and how the IACtHR has applied those rules in its case law, especially in the decisions for Ituango Massacres v. Colombia and “Mapiripán Massacre” v. Colombia (both 2006). Góngora-Mera gives an account of how the Court used the notion of evolutive interpretation of ACHR Article 22 (freedom of movement and residence) to include the protection of internally displaced people as part of the core content of those rights.60 He points out that the IACtHR also adopted the position of Decision T-025 (2004) in which the Colombian Constitutional Court declared that the situation of internally displaced Colombians was an unconstitutional state of affairs61 and ordered the adoption of policies in favour of the victims of displacement. He highlights how the Court followed the statements of Decision T-025 by recognising the complexity of the phenomenon of internal displacement and the situation of special vulnerability and defencelessness for the victims. He also shows how the IACtHR emulated the Colombian Court and ordered the state to grant the displaced preferential treatment and to adopt positive measures to reverse the effects of this situation of vulnerability.62

2.5. Supranationalisation II: control of conventionality The concept of control of conventionality, created and developed by the Court through its case law, is another example of its profiling as a supraconstitutional tribunal. Indeed, the language it uses when referring to conventionality control rests on the constitutional analogy of judicial review.63 Since the Almonacid

59 Diego García Sayan, “Una Viva Interacción: Corte Interamericana Y Tribunales Internos,” in La Corte Interamericana De Derechos Humanos. Un Cuarto De Siglo: 1979–2004, ed. Corte Interamericana de Derechos Humanos (San José: Corte Interamericana de Derechos Humanos, 2005). 60 Manuel Gongora Mera, “Diálogos Jurisprudenciales Entre La Corte Interamericana De Derechos Humanos Y La Corte Constitucional De Colombia: Una Visión Co-Evolutiva De La Convergencia De Estándares Sobre Derechos De Las Víctimas,” in La Justicia Constitucional y su Internacionalización: ¿Hacia Un Ius Constitutionale Commune En América Latina?, eds. Armin Von Bogdandy, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi (Mexico: Institituto de Investigaciones Juridicas, 2010), 419. 61 The original Spanish term is estado de cosas inconstitucionales. An unconstitutional state of affairs is a figure developed by the Colombian Constitutional Court that enables it to declare the failure of both the legislative and executive branches of government to enforce public policies against systematic violation of fundamental rights. Such failure justifies judicial intervention to combat the structural causes of the violations. The Court acts as an institutional coordinator, helping state organs overcome political and structural barriers and increasing dialogue with civil society. Thiago Luís Santos Sombra, “Adpf 347 and the ‘Unconstitutional State of Affairs’ of Brazil’s Prison System,” Espaço Jurídico Journal of Law 17, no. 2 (2016): 649–656, https://doi.org/10.18593/ejjl.v17i2.9764. 62 Gongora Mera, “Diálogos Jurisprudenciales,” 417. 63 Ariel Dulitzky, “An Alternative Approach to the Conventionality Control Doctrine,” American Journal of International Law. AJIL Unbound 109 (2015): 100–108.

106  Two competing legal streams Arellano decision, a plethora of articles and books have explained the origins, legal foundations, characteristics and impact of control of conventionality in local orders.64 Chapter 3 described how the notion of control of conventionality has been defined under the logic of control of constitutionality. That is to say, in both cases, the judiciary is obliged to apply or interpret a legal norm under the standards of a constitution or bloc of conventionality. The constitutional character attributed to the ACHR implies that the Court is a constitutional tribunal.65 Dulitzky argues that the language deployed in its case law implies that the Court may have transformed itself as the final and sole proper interpreter of the ACHR, with an absolutist interpretation. This is especially clear when the Court argues that the parameter of conventionality control is not only the ACHR itself, but also its own case law.66 Burgorgue has explicitly portrayed the Court as a constitutional tribunal. She applies the constitutional analogy to profile the Court like a constitutional court. According to her, the similarity of the two types of tribunal is marked in the function they undertake, that is, they both fulfil the conformity of legal norms with a superior Corpus Juris, such as constitution or the ACHR.67 Burgorgue goes even further, defining national tribunals and national legal normativity as of inferior position in relation to the IACtHR and ACHR.68 Burgorgue pinpoints the competences the ACHR attributes to the Court, such as advisory jurisdiction and contentious competence. For this author, the

64 Control de convencionalidad interno. La aplicación del corpus iuris interamericano por los Estados Parte de la Convención Americana sobre Derechos Humanos, en especial, las jurisdicciones nacionales Humberto Nogueira Alcalá and Gonzalo Aguilar Cavallo (Santiago de Chile: Librotecnia, 2018); El Control De Convencionalidad: Un Balance a 10 Años De Almonacid Arellano vs. Chile, Miriam Henríquez and Morales Antoniazzi. Mariela,(Santiago de Chile: Facultad de Derecho de la Universidad Alberto Hurtado, Der Editores, 2017; Juana María Ibañez Rivas, Manual Auto-Formativo Para La AplicacióN Del Control De Convencionalidad Dirigido a Operadores De Justicia (San José: Instituto Interamericano de Derechos Humanos, 2015); Oswaldo Ruiz-Chiriboga, “The Conventionality Control: Examples of (Un)Successful Experiences in Latin America,” Inter-American and European Human Rights Journal 2, no. 1–2 (2013): 200–219; Pablo González-Domínguez, The Doctrine of Conventionality Control: Between Uniformity and Legal Pluralism in the Inter-American Human Rights System (Cambridge: Intersentia, 2018), Pérez-León, “The Control of the Inter-American Court of Human Rights over Amnesty Laws”; Ariel Dulitzky, “An InterAmerican Constitutional Court? The Invention of the Conventionality Control by the InterAmerican Court of Human Rights,” Texas International Law Journal 50, no. 1 (2014): 45. 65 Laurence Burgorgue-Larsen, “La Corte Interamericana como Tribunal Constitutional,” in Ius Constitutionale Commune En América Latina. Rasgos, Potencialidades Y Desafíos, eds. Héctor Felipe Fix-Fierro, Armin von Bogdandy, and Mariela Morales Antoniazzi (México: Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurídicas, 2016); Dulitzky, “An Alternative Approach to the Conventionality Control Doctrine,” 102–103. 66 See Chapter 3, and Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 154 (September 26, 2006). Dulitzky, 100. 67 Burgorgue-Larsen, “La Corte Interamericana.” 68 Burgorgue-Larsen, 424.

Two competing legal streams  107 advisory jurisdiction is similar to a prior control of constitutionality (judicial review of legislation before its approval by parliament).69 Likewise, Burgorgue compares the control of conventionality that the Court carries out through its contentious competence with control of constitutionality a posteriori. The comparison rests on the fact that the Court examines the compatibility of national legal norms— including constitutional-rank norms—with the standards of an Inter-American Corpus Juris.70 Indeed, she purposefully reasserts that the exercise of conventionality resembles constitutional tribunals’ examination of legal norms’ conformity with local constitutions.71 In the same way, control of conventionality reflects its supranational character when scholars describe it as an obligation related to local tribunals in terms of a diffuse control of conventionality. With regard to the obligation of the Court to exert control of conventionality, the constitutional approach defines it as a concentrated control of conventionality. More specifically, Judge Ferrer Mac-Gregor employed that categorisation in his concurring opinion to the Cabrera García v. Mexico case, as well as in various articles he has authored related to control of conventionality.72 This entails a vertical relation between the Court exerting concentrated control and local judiciaries below it. In addition, it reinforces the idea that the Court has the ultimate say on protecting human rights in the region.

2.6. Supranationalisation III: the Court’s public authority and transnational democratic grounds The constitutional approach and more specifically the ICCAL project support the validity of the implied and expansive powers that the Court has adopted for protecting human rights. In justifying the Court’s activism, they engage with the use of constitutional analogies, partially neglecting the consent of states as the source of tribunals’ authority, to promote the idea of its autonomy.73 In brief, for the constitutional approach and ICCAL, international courts have evolved from being instruments of party states whose authority relies on those states’ consent (dispute settlement) to become agents of global governance whose authority stems from other normative sources, such as a principle of transnational democracy. Thus, one premise of ICCAL is that the IACtHR is an agent

69 Burgorgue-Larsen, 426. 70 Burgorgue-Larsen, 426. 71 Burgorgue-Larsen, 428–435. 72 This argument attempts to address how both the case law, including concurring or separate opinions, and the doctrine that academics spread throughout publications contribute to profile the image of the Court in constitutional terms. See: Eduardo Ferrer Mac-Gregor, Del Control De Constitucionalidad Al Control De Convencionalidad: ¿Un Nuevo Modelo Para América Latina? (Girona: Cátedra de Cultura Jurídica, 2011). 73 The meaning of autonomy of the institutions connects to the previous work of Bogdandy, Goldman, and Venzke on the public authority of international public institutions and the legitimacy of international tribunals.

108  Two competing legal streams of public authority. The definition of that notion implies the “capacity, based on legal acts, to impact other actors in their exercise of freedom, be it legally or simply de facto.”74 Thus, it cannot be understood only in terms of national authority, but also the idea that it extends beyond the notion of bindingness, and that, like constitutional courts, international tribunals exert authority despite their lack of means to coerce parliaments or governments.75 The fact that the constitutional approach embraces that notion of authority has consequences in its understanding of the profile of the Court. Under its definition, the IACtHR’s authority does not only rely on the consent of states, but also on other international values that provide the basis for the expansion of powers regardless of the will of the Latin American states. Indeed, Bogdandy and Venzke affirm the following idea: The law-making effect of a judicial decision, especially its general dimension, depends not merely on its voluntas but also on its ratio, on the reasons given. But does it make sense, then, to conceive of judicial law-making as an exercise of public authority? (…) It may be worth adding that our relatively broad conception of authority stems from a principal consideration: if public law is seen in a liberal and democratic tradition as an order for safeguarding personal freedom and for allowing collective self determination, then any act with an effect on these normative vantage points should come into consideration the moment its effects are significant enough to give rise to reasonable doubts about its legitimacy.76 In general, these authors justify their theory of international institutions’ public authority as an alternative path in relation to global governance approaches that rely on a functionalist perspective. They agree with the functionalist approach that tribunals are actors of global multilayered governance, but they also see the secretive, technocratic flaws of functionalism and international institutions’ lack of democratic accountability as a crucial problem of global governance. Thus, they opt for arguments centred on a transnational democracy as a solution to the problems that institutions of global governance give rise to. Bogdandy and Venzke’s proposal is that if the IACtHR is an autonomous agent, it acts “In the Name of the Peoples” instead of “In the Name of the States.” They believe the Court ultimately protects peoples, not the apparatus of

74 Armin von Bogdandy and Ingo Venzke, In Whose Name? (Oxford University Press, 2014), 113. See chapter 1. 75 Bogdandy and Venzke, In Whose Name?, 113. 76 Armin von Bogdandy and Ingo Venzke. “In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification.” European Journal of International Law 23, no. 1 (2012): 18.

Two competing legal streams  109 government, even if the latter represent a people. More specifically, they adopt a model of dual democracy that sees a democratic state as a source of democratic legitimacy as well as a transnational or cosmopolitan citizenship. In that sense, they affirm that the notion of transnational citizenship does not depend on establishing a community under positive law or a right to vote for an international parliament.77 They claim that their conception of democracy goes beyond the notion of exclusive representation to comprise the idea of inclusion. This latter implies that in their various decision-making processes, tribunals should hold broader deliberative processes in order to democratise them and legitimise their authority, among other aspects. Bogdandy and Venzke also argue that the IACtHR can act on behalf of stateless individuals, refugees and members of authoritarian states who are inadequately represented by their government.78 This perspective has some problems. Firstly, the theory of democratic legitimacy that they attempt to profile as general was designed taking into account the structures and dynamics of the European Union, and it is unclear whether all their arguments fit or are applicable to the Inter-American System of Human Rights. Secondly, Bogdandy and Venzke also bring the debate on the existence of a transnational democracy to Latin America, but arguably their ideas about the transnational democratic grounds of an international tribunal like the Court can easily be used to strengthen the position of international institutions and legal experts as lawmakers, rather than to promote more human rights and democracy in the region. In the Latin American region, as recent scholarship demonstrates, many legal scholars supporting ICCAL’s perspectives have also adopted the tenet related to the autonomy of the Court. The discussion on the Court’s legitimacy exists and it has embraced its own features, which are embedded in the Latin American understanding of constitutionalism.79 In general, the proposal driven by the Max Planck Institute on the existence of a ius constitutionale commune fits with the understanding of constitutional law in Latin America that supports strong activism from the local judiciary. Yet there is still some work that Latin American scholars should do in order to clarify their position in relation to the tenets of the Max Planck Institute’s ongoing projects. For example, they should discuss more explicitly their vision of the Court as an autonomous actor of global governance that acts on behalf of people (that is, the idea of transnational democracy).

77 They detach or differentiate from the republican perspective driven by Petit, who refers to the notion of indirect democratic grounds that states provide to the international order. Bogdandy and Venzke, In Whose Name?, 143. 78 They affirm that the democratic approach moves beyond the dimension of protecting rights. Bogdandy and Venzke, 212. 79 Chapter 5 will discuss the connection between the idea of transnational democracy and the Latin American perspective of the constitutionalisation of the Court. The ICCAL project arguably helps reinforce the practice of profiling the Court as a constitutional tribunal.

110  Two competing legal streams

2.7. Margin of appreciation: between reluctance and acceptance The doctrine of margin of appreciation has been a matter of discussion in the constitutional strand. Yet related arguments have not been developed in-depth because the majority of constitutional scholars reject the doctrine’s use or justify a reluctance to apply it in the Inter-American System of Human Rights. Indeed, it is obvious that the notion of deference is not a matter of great interest because even when these scholars embrace the notion of dialogue, it has not involved developing any clear arguments concerning the margin of appreciation as a selfrestraint rule for the IACtHR. During the 1990s, former IACtHR Judge Cançado Trindade adopted a position that clearly rejected the doctrine of margin of appreciation for two reasons. He argued that there was no room for it because the majority of the cases put before the Court involved alleged violations to non-derogable rights.80 This argument comprises normative and practical elements. On the normative side, Cançado took a universal approach to the notion of human rights that does not admit any relativism. Indeed, he considered the doctrine of margin of appreciation an “artifice” created to enable a relative application of International Human Rights Law. The pragmatic side was based on the nature of the cases, many of which involved gross, massive and grave violations of human rights.81 However, as Contreras has asserted, the bloody history of the Latin American region should not prevent an analytical study of the figure.82 More recently, Nash has justified the reluctance around the notion of deference by taking into consideration the nature of the obligations recognised in the ACHR. For Nash, Article 2 (related to the obligation of the state to adopt legal or other measures to give effect to the rights or freedoms recognised in the ACHR) is the legal foundation that permits the Court to become the last interpreter of human rights in the Latin American region and to reject the doctrine of deference. Nash writes that the fact that the states ratified the ACHR implies that they accepted the powers stemming from Article 2; therefore, the Court is not obliged to inhibit itself in favour of the state. Nash recognises that the neglect of the doctrine in the region can be explained by the Court’s distrust of the states party to the ACHR.83

80 Augusto Cançado Trindade, “Reflexiones Sobre El Futuro Del Sistema Interamericano De Protección De Los Derechos Humanos,” in El Futuro Del Sistema Interamericano De Protección a Los Derechos Humanos, eds. Juan Méndez and Francisco Cox (San José: Instituto Interamericano de Derechos Humanos, 1998). 81 Pablo Contreras, “National Discretion and International Deference in the Restriction of Human Rights: A Comparison between the Jurisprudence of the European and the InterAmerican Court of Human Rights,” Northwestern University Journal of International Human Rights 11, no. 1 (2012): 62. 82 Contreras, “National Discretion,” 63. 83 Fix-Zamudio, Héctor, “El derecho internacional de los derechos humanos en las constituciones latinoamericanas y en la Corte Interamericana de Derechos Humanos”, Revista Latinoameicana de Derecho I, no. 1 (2004): p. 147.

Two competing legal streams  111 Other authors justify the neglect of the notion of deference by explaining specific cases that did not admit a margin of deference in favour of the state. Acosta has justified the non-use of the doctrine in Colombian cases put to the Court. She states that their nature—that is, their connection with massacres, forced disappearances, and extra-judicial executions—ruled out any possibility of the use of the margin of appreciation in favour of the state.84 Acosta’s reflection does not include any kind of argument that supports the emergence of a doctrine of deference or a critical viewpoint on the Court argument’s for rejecting it. An author who supports the existence of a multilayered system of human rights protection should commit to developing different forms to solve possible conflicts stemming from the proclaimed horizontal relationship between the judiciary. While the constitutional approach seems open to discussing the use of the margin of appreciation, it uses arguments that justify the lack of a doctrine of deference on the basis of an absolutist idea of human rights protection. In the end, human rights outweigh any need for debate and entrench the vision of the Court as a supraconstitutional judicial body.

2.8. Democratic transformation The constitutional approach also engages with the local dimension of democracy and human rights. In particular, it affirms that the IACtHR holds powers that enable it to transform local democracies through human rights protection. For these scholars, the Court has become a kind of beacon radiating principles concerning the protection of individual rights and equality, and is therefore a democracy builder or transformative power. The constitutional approach uses certain premises to justify its arguments. Firstly, it connects the rise of the Court’s authority with the wave of democratisation in Latin America and the settling of democratic governments. According to this strand, in the context of democratisation, the Court helped instil respect for civil and political rights like freedom of speech, the right to life and right to due process of law.85 The content of those rights—which constitute minimum

84 Paola Andrea Acosta Alvarado, “Los Casos Colombianos Ante El Sistema Interamericano Y El Uso Del Margen De Apreciación: ¿Ausencia Justificada?,” in El Margen De Apreciación En El Sistema Interamericano De Derechos Humanos: Proyecciones Regionales Y Nacionales, eds. Paola Andrea Acosta Alvarado and Manuel Nuñez Poblete (México: Instituto de Investigaciones Jurídicas, 2012), 87. 85 ICCAL supports the idea of the pivotal role of national courts and the IACtHR in transforming the region by the same token. According to Bogdandy, the Court is an alternative in order to overcome the hyper-presidentialisms in the region, as well as to promote the realisation of democracy: “The jurisprudence of the Colombian Constitutional Court and the Inter-American Court demonstrate that this aspiration is no rose-tinted utopia. It is nonetheless clear to all that courts cannot and will not automatically support a transformational project. The persistent question is this: what can be done so that the Latin American courts, which traditionally have not challenged the executive power or practices of exclusion, will

112  Two competing legal streams guarantees in a democratic society—was thus defined by the Court, which thereby became a democracy-building agent. This statement does not necessarily take into account the circumstances, political forces or particular situations through which the Court could become an agent of protection of human rights in the region. In the first instance, the argument on the transformation of local democracies implies a certain definition of democracy and its relationship with the notion of human rights. As Daly affirms, to provide content to the notions of democracy building or strengthening as functions of tribunals requires recognising that democracy and democratisation are meta-concepts and contested definitions of an expansive nature.86 The constitutional approach does not explain this perspective expressly; indeed, their arguments take for granted that the Court has played a pivotal role in democratisation in the region. Likewise, the assumption that the Court became pivotal in promoting human rights during a post-dictatorial stage is a seed for the argument that, currently, in a more stable context, it can play a leading role in promoting human rights and strengthening democracy. Using the narrative of progress, constitutional scholars assert that although local Latin American democracies are passing through a phase of stable democratic governments, they face remarkable inequality, exclusion and poverty.87 In that context, they consider the IACtHR to still have a leading role because it provides the templates for protecting civil and, eventually, social rights to which state organs are bound.88 If the IACtHR’s work responds to the challenge of counteracting structural deficiencies, weak institutions and exclusion, constitutional scholars should justify how this activism on behalf of substantive equality does not require the international judiciary’s invasion of the local order. They have tried to respond to possible critiques by affirming that their interest in the judiciary’s role in protecting equality does not involve a call for replacing policymaking by political institutions.89 Yet a deeper explanation of how and why describing the case law of the Court as driving devices of transformation and mobilisation is central to promoting local change is still pending.

take up these difficult tasks with some prospect of success?” Bogdandy, “Ius Constitutionale Commune En América Latina: Observations on Transformative Constitutionalism,” 112. 86  Tom Gerald Daly, “The Alchemists: Courts as Democracy-Builders in Contemporary Thought,” Global Constitutionalism 6, no. 1 (2017): 109. 87 Armin von Bogdandy, “Ius Constitutionale Commune En América Latina: Una Mirada a Un Constitucionalismo Transformador.” 88  Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, and Rogelio Flores Pantoja, Inclusión, Ius Commune Y Justiciabilidad De Los Desca En La Jurisprudencia Interamericana: El Caso Lagos Del Campo Y Los Nuevos Desafíos (Querétaro: Instituto de Estudios Constitucionales del Estado de Querétaro, 2018); Bogdandy, Piovesan, and Morales Antoniazzi, Direitos Humanos, Democracia E Integração Jurídica. Avançando No Diálogo Constitucional E Regional. 89 Bogdandy, “Ius Constitutionale Commune En América Latina: Observations on Transformative Constitutionalism,” 112.

Two competing legal streams  113 As for democracy, the constitutional strand embraces a concept of it that combines the formality of electoral and participatory democratic models with a substantive approach focused on inclusion or substantial equality. The constitutional approach addresses their idea of substantive equality as a democratic matter in terms of vulnerability or identity.90 They usually focus on the situation of vulnerable groups whose identity is defined in basic terms. They cite examples of the Court’s case law helping to transform the situation of groups such as indigenous and, more recently, LGTB people. For example, a recent paper by Herrera points out that IACtHR jurisprudence has played a vital role in safe-guarding the rights of communities by establishing a high standard of protection, particularly concerning states’ imperative to recognise free, prior and informed consent.91 According to Herrera, the case law Saramaka v. Surinam—in which the Court recognised the right to collective property of Afro-descendant communities and the right to prior consultation of indigenous communities on implementing investment projects in their territories—is the starting point for a comprehensive path for protecting indigenous and Afro-descendant rights, in clear reference to the necessity of consent for effectively protecting the right to property, among other rights.92 He writes: Saramaka stands as a landmark case which strives for systematic protection of indigenous autonomy and self-governance under a multicultural perspective. Since that precedent was first set, decisions of communities should not just be “considered” or “socialized”; additionally, there is an abstract “right to consultation, and where applicable, a duty to obtain consent.”93

90 Mary Beloff and Laura Clérico, “Derecho a Condiciones De Existencia Digna Y Situacion De Vulnerabilidad En La Jurisprudencia De La Corte Interamericanaderecho a Condiciones De Existencia Digna Y Situacion De Vulnerabilidad En La Jurisprudencia De La Corte Interamericana,” Estudios constitucionales: Revista del Centro de Estudios Constitucionales, no. 1 (2016): 139–178; Martín Aldao and Laura Clérico, “A Multidimensional Approach to Equality in the Inter-American Context: Redistribution, Recognition, and Participatory Parity,” in Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune, eds. Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan, and Ximena Soley (Oxford: Oxford University Press, 2017): 83–96. 91 Juan C. Herrera, “Judicial Dialogue and Transformative Constitutionalism in Latin America: The Case of Indigenous Peoples and Afro-descendants.” Revista Derecho Del Estado, no. 43 (2019): 191–233. 92 The constitutional approach is similarly engaged with democracy’s connection to social rights as devices for promoting inclusion. Recent publication spell out how it conceives the judicialisation of social rights as a device of transformative change for the region’s democracies. Eduardo Ferrer Mac-Gregor. “Social Rights in the Jurisprudence of the Inter-American Court of Human Rights.” In Research Handbook on International Law and Social Rights, 173–187. Research Handbooks in International Law Series. Edward Elgar Publishing, 2020; Mariella Morales Antoniazzi y Laura Clérico. Interamericanizacion del derecho a la salud. Perspectivas a la luz del caso Poblete Vilches de la Corte IDH (Querétaro: Instituto de Estudios Constitucionales del Estado de Quétaro, 2020). 93 Herrera, “Judicial Dialogue and Transformative Constitutionalism,” 199–200.

114  Two competing legal streams For the constitutional approach, it is heartening that the Court adopts a perspective of equality in terms of identity and substantive equality in terms of inclusion. However, the constitutional approach must analyse more seriously or critically the arguments they use to support the image of the IACtHR as a democracy builder. Significantly, the constitutional scholars shall examine whether the concept of democracy they embrace rather than challenging the root causes of inequality reinforces them or, in practical terms, leave them untouched.

3. The state-centric local democratic approach 3.1. Who drives the state-centric approach? The scholars who belong to this strand are constitutional lawyers or human rights lawyers that focus on a state-centric approach to the role of the Court. In defence of the principles of sovereignty or democratic majority, they gather the perspectives of high courts that have reacted or criticised the Court’s decisions. They suggest that the Court experiences an increasing backlash and pressure from local domestic orders due to its activism.94 One of the first voices to develop a critique of the decisions of the Court was Gargarella. Cavallo, Contreras and Contesse have developed a further critique that invites focus on the notion of margin of appreciation as an alternative solution to moderate the role of the Court as an international tribunal with constitutional powers. Some of these authors use constitutional theory to debate the Court’s role. To cite one instance, Gargarella’s argument concerning the relationship between the IACtHR and local democracies reproduces Waldron’s work on the clash between the institution of judicial review and democracy.95 These scholars define themselves as having a different approach to that adopted by the constitutional stream. The following sections describe the main arguments developed by this strand.

3.2. Approach to the existence of a ius constitutionale commune The legal scholars who are part of this perspective do not have a clear response to the emergence of the idea of a ius constitutionale commune in Latin America. To illustrate, Gargarella asserts that the claim on the developing of a ius commune is right, at least in partial terms. He agrees that judicial dialogue exists, but refers to it as an emerging figure in the region. However, he suggests that these advancements should be analysed under the parameters of democracy. Gargarella argues that the law, at local, national and international levels, should be the product of

94 Jorge Contesse, “Contestation and Deference in the Inter-American Human Rights System. (Subsidiarity in Global Governance),” Law and Contemporary Problems 79, no. 2 (2016): 123–146. 95 Gargarella, Roberto. “Democracy and Rights in Gelman v. Uruguay.” AJIL Unbound 109 (2015): 118. doi:10.1017/S2398772300001276. Quoting Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999).

Two competing legal streams  115 deliberated democratic agreements.96 He thus rejects the idea that a ius constitutional commune should result from judicial decisions; he affirms that the content of democratic laws should be the product of “horizontal agreements,” and not of judicial or political “vertical impositions.”97 Other state-centric authors have also deployed explanations of the use of the concept of ius commune in the region. These do not involve a strong critical approach, however, but the one that is more pragmatic or practical. That is to say, in some cases they support the existence of a ius commune, while in other situations they point out some of the weaknesses of that doctrine or the notion of control of conventionality. Contreras’ work on the notions of Corpus Juris or ius commune is an example. He first provides a genealogy of the use of the term in the Court’s jurisprudence and expounds the reasons for its use. He explains that the terms Corpus Juris or ius commune originated in medieval times, that is, in a premodern period incomparable to the context of democratic constitutionalism that governs the region. He does not provide further explanation of why it is critical to use a premodern notion. Contreras also states that these categories have been applied as a device to represent the deformalisation of the traditional sources of international law.98 He brings up the use of the notions of Corpus Juris or ius commune to broaden member states’ international obligations since they comprise different sources of soft law and case law of the Court. Contreras also refers to how the Court has linked the notion of Corpus Juris to the evolutionary principle, securing its opened nature and the possibility of its continuous development and flexibility. Another aspect that Contreras remarks on as a characteristic of the doctrine of ius commune is its connection with the notion of control of conventionality as drawn by the Court in the case Massacres of Black River v. Argentina.99 This association implied that a Corpus Juris is the parameter of control of conventionality that local authorities must apply in order to determine the conformity of the local legal order with the standards of the System. Rather than criticising the general effects of the Court’s decisions and possible vertical definition of the concept of ius constitititutionale commune or Corpus Juris, Contreras positively refers to the general effects that the Artavia Murillo v. Costa Rica case might trigger in Latin American legal orders. Contreras says the criteria on the nasciturus right to life should be applied by the local judiciary in Chile in compliance with the obligation of control of

96  Gargarella, “The Constitutionalization of International Law,” 215. 97  Gargarella, 215. 98 Pablo Contreras, “Notas Sobre El Corpus Juris Interamericano,” in Control De Convencionalidad, Corpus Iuris Y Ius Commune Interamericano, eds. Humberto Nogueira and Gonzalo Aguilar (Santiago: Triángulo, 2017). 99 Contreras, “Notas Sobre El Corpus Juris Interamericano.”

116  Two competing legal streams conventionality imposed by the IACtHR.100 In addition, he suggests that the standards provided by the Court could trigger a deliberative process related to the approval of new legislation allowing and regulating abortion in Chile.101 Contreras engages with the standards given by the Court concerning nasciturus right to life and clearly refers to its jurisprudence as authoritative. This works as a device to argue against the conservative position that prohibits abortion in Chile.102 In parallel and contrary to his position on the standards on the right to life, Contreras seems to adopt a sceptical approach to the use of the categories of Corpus Juris or ius constitutionale commune. He affirms that their usage is not casual; in contrast, they have been used intentionally to justify and include the jurisprudence of the Court as a binding source of international law. Finally, Contreras enunciates his concerns about (rather than a rejection of) their usage, and calls for a better understanding of the topic, as well as a larger and deeper theoretical development of it.103 The state-centric approach also questions the existence of a dialogue between the IACtHR and local judiciary, but do not reject the idea of dialogue as a basis for promoting a kind of ius commune in Latin America. Contesse criticises the notion of dialogue that the constitutional approach uses to evade allegations of monism. He points out that “dialog” implies that the IACtHR should take into consideration the case law of local jurisdictions, and writes that when the constitutional scholars provide examples of dialogue, they ultimately refer to the existence of a unidirectional monologue from the Court to domestic courts. If there were dialogue, then both parties would have an equal right to participate and the better argument about the meaning and scope of fundamental rights should ultimately prevail notwithstanding the authority from whence it originated. Yet, as formulated, the Court’s opinions have more weight in this model of “inter-jurisprudential dialogue,” effectively functioning as the final word.104 In his view, the Court should try to achieve a real dialogue with local judges, instead of imposing its standards. He suggests that monologue was acceptable in the years in which the Court began functioning, when local democracies showed

100 Eduardo Chia and Pablo Contreras, “Análisis De La Sentencia Artavia Murillo Y Otros (“Fecundación in Vitro”) v. Costa Rica De La Corte Interamericana De Derechos Humanos,” Estudios constitucionales: Revista del Centro de Estudios Constitucionales 12, no. 2 (2015): 580–582. 101 Chia and Contreras, “Análisis De La Sentencia,” 582. 102 Chia and Contreras, 582–583. 103 Contreras, “Notas Sobre El Corpus Juris Interamericano.” 104 Jorge Contesse, “The Final Word? Constitutional Dialogue and the Inter-American Court of Human Rights: A Rejoinder to Paolo Carozza and Pablo González Domínguez,” International Journal of Constitutional Law 15, no. 2 (2017): 425.

Two competing legal streams  117 weak institutional structure and the cases it had to solve were related to gross violations of human rights.105 Contesse also tries to show that the Court may have dialogued with national jurisdictions in the current Latin American context. He highlights as a positive the fact that in the case Atala v. Chile, the Court referred to the decisions of the Colombian Constitutional Court and the Supreme Court of Mexico, which ruled out discrimination against same-sex couples. For Contesse, these two cases enabled the Court to bolster the idea that discriminating against a person because of his or her sexual orientation violates the ACHR.106 In general, in Contesse’s perspective, the progress and maturity of local democracies is what makes it possible to dialogue. For him, the new democracies that held power after the fall of Latin American dictatorships did not deserve deference; at that time, the Court did have last say on protecting human rights. From my viewpoint, his position does not necessarily oppose the constitutional approach’s argument for distrusting the local democracies.

3.3. Principle of subsidiarity against supranationalisation The state-centric approach places the principle of subsidiarity as central to its critique of the Court’s supranational profile. In consequence, they focus on an explanation of the concept and its relevance for international human rights law. Contesse, for instance, starts explaining various approaches to the principle and justifying why is it relevant to discuss its scope in the Inter-American System of Human Rights. He argues in favour of the principle as a solution to some of the problems that emerge from the increasing international authority of regional courts protecting human rights.107 In a nutshell, Contesse points out that the concept in itself admits either a normative or a descriptive perspective that become relevant for allocating authority. A normative approach to subsidiarity implies a “rebuttable presumption for the local”: Local units should have first right to decide matters of law. In contrast, a descriptive approach does not entail any preference for the local, the peripheral or the central, but merely describes the relationship between two institutions and how one complements the other in specific situations. This approach gives room to defend centre-controlled decision-making, rather than just promoting a presumption in favour of the local.108 After explaining the differences between the two definitions, Contesse does not decisively embrace either of them. Instead, he uses these descriptions to compare them with the understanding of the principle of subsidiarity in the Court’s practice. Through this comparison, he ultimately highlights how the Court’s attitude towards the principle makes it flexible. He explains that this weak approach

105 Contesse, “The Final Word?,” 426. 106 Contesse, 428. 107 Contesse, 425. 108 Contesse, “Contestation and Deference,” 124–126.

118  Two competing legal streams to the principle of subsidiarity connects to the type of human rights breaches in the region. He refers to the Velásquez Rodríguez v. Honduras case in which the Court adopted a flexible notion of the rule of exhaustion of local remedies to admit the case and make a decision on its merits. In his account, the respondent state cited the lack of exhaustion of local remedies as a preliminary objection, but the court rejected this: even though it recognised that domestic law has precedence over the international arena, it used the language of human rights to disregard that precedence.109 In the opinion of Contesse, when the Court carved out an exception to the exhaustion of domestic remedies, it established itself as a moral superior acting on behalf of human rights and providing direction to a country with an underdeveloped rule of law.110 Adopting a weak version of the subsidiarity principle means engaging with a maximalist ethos that is still present in Court practice. As a matter of fact, Contesse depicts the doctrine of control of conventionality as an example of the maximalist direction adopted by the Court and its flexible approach to subsidiarity. Contesse points out a relevant argument that calls into question the argument on the noncompliance of the states as a way to justify the validity of the doctrine. He affirms that the fact that state responsibility can emerge from non-compliance is not sufficient or a valid reason to endow judges with powers, like the control of conventionality, that the domestic legal system may not grant them.111 Contesse raises his critique with more doubts than with a clear rejection towards the concept of control of conventionality. Indeed, his concerns spotlight that continuing with the above-mentioned doctrine could reinforce reluctance and backlash from the states against the Court.112 Therefore, his critique does not necessarily discard the control of conventionality or perhaps implies the acceptance of the institution with a weaker tone. Certainly, he prefers to adopt a perspective of deference that in his viewpoint is possible due to the region’s democratisation.113 However, this aspect will be discussed in Section 3.5 of this part of the chapter.

3.4. Arguments against the Court as ultimate interpreter (Supranationalisation II) The profile of the Court as a supraconstitutional body has been criticised by the state-centric approach in various senses. Among several arguments, some point out the lack of democratic background of the Court’s composition, or argue that it acts as a fourth judicial instance. This section exposes the arguments the state-centric approach has raised against the constitutional perspective. To start with, some argue that positioning

109 Contesse, 129. 110 Contesse, 130. 111 Contesse, 140. 112 Contesse, 141. 113 Contesse, 141.

Two competing legal streams  119 the Court as the organ with the last word on human rights affects the sovereignty of the states that ratified the ACHR and accepted the jurisdiction of the IAtCHR. The state-centric scholars believe that the act of ratifying a treaty, or of recognising the jurisdiction of an international tribunal, does not imply that tribunal should have the last word on the contents or protection of human rights.114 This argument is reinforced by the point that the Court is composed of seven part-time judges who are not democratically elected; thereby, they do not have enough legitimacy to hold the last word on human rights in the region. Some criticise the theory that the Court is the ultimate interpreter of the ACHR as ideological or as not having any legal foundation to sustain the Court’s constitutional power. Malarino, for example, contends that promoting the Court’s judicial activism and its profile as a supraconstitutional tribunal is ideological since the appeal of judicial activism rests on the subjective point of view of those who evaluate and characterise the results as correct.115 Promoting the Court as the organ with the last say on rights in the System is ideological because it is “rhetorically effective only between those who share the same ideological point of view.”116 Some authors consider that understanding the Court as the organ with the last say on rights implies that it is affirming: “I am bound by the Convention, but the Convention is what I say it is.”117 However, by using the distinction between finality and infallibility, Malarino affirms that even if someone accepts that the Court is the authority on the law, that does not mean that the Court is infallible. He writes then that the fact that Court is obliged to correctly apply the rules of the ACHR and other treaties under its control does not rule out that it may make mistakes (intentionally or otherwise). Moreover, in his view, its mistaken decisions will endure since there is no higher court that controls its case law, yet this does not mean that a mistake in interpreting a norm becomes a general rule. For instance, if the Court fails by providing an erroneous application of ACHR Article 9 that prohibits the retroactive application of criminal law, that does not imply that the rule of non-retroactivity has changed and expanded with general effects for all member states. This stems from the lack of any clause positioning the Court as lawmaker: If the Inter-American system were to include a rule providing that “anything the IACHR considers appropriate will be law,” then the Inter-American legal framework would undoubtedly be what the IACHR says it is. However, this rule does not exist in the Inter-American system. Consequently, asserting

114 Ezequiel Malarino, “Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American Court of Human Rights,” International Criminal Law Review 12, no. 4 (2012): 665–695. 115 Malarino, “Judicial Activism,” 679. 116 Malarino, 680. 117 Malarino, 680.

120  Two competing legal streams that in the Inter-American system “the law is what judges say it is” is not true. It is not true that everything judges say is law.118 Another critique of the Court’s supranationalisation is the argument that profiles it as a tribunal of fourth instance. In general, an international tribunal like the IACtHR cannot act as a higher court or an appeal court “in settling disputes between parties, on some aspects of the assessment of evidence, or of the application of the domestic law to certain matters not directly related to compliance with international human rights obligations.”119 Following this, the Court and the constitutional approach deny the Court’s character as a court of last resort or a criminal court. Malarino points out that it does act as a fourth instance tribunal, however, when it orders a national tribunal to reopen a judicial proceeding. He cites the case Bulacio v. Argentina to argue that the Court refuses to analyse evidence favouring the respondent state in order to exclusively benefit the alleged victims who initiated a proceeding before the Court. Bulacio v. Argentina is related to the illegal detention of a 17-year-old (Walter Bulacio) by the Buenos Aires police. Bulacio died as a consequence of the injuries caused by the police during his detention. The investigation of the case lasted longer than 10 years, extinguishing the possibility of prosecuting or condemning the alleged perpetrator.120 The Court ordered the reopening of the judicial proceeding against the police officer (Mr. Espósito). In its opinion, Espósito had taken actions to delay the criminal action against him. However, Malarino points out that the Court’s assessment was based only on the arguments of the parties involved (the victims) and Espósito was not part of the international proceeding. In Malarino’s view, the decision thus ignored the fact that the criminal action had lapsed, and reopening the case involved breaching the principle of legality.121 For Malarino, the Court assigns relevance only to the arguments submitted by parties to international proceedings, does not consider other aspects relevant for domestic legal orders and tends to disregard evidence that would favour the acquiescing state. This tendency connects with the perspective adopted by the Court on its general obligation to protect human rights. In the Court’s view, this comprises a “duty to punish” doctrine it developed since the Velasquez Rodríguez v. Honduras case, and does not admit alternative solutions to face the consequences of illegal actions. More specifically, Basch points out that this type of decision in which the Court entrenches the duty to punish doctrine can impinge on defendants’ rights in concrete criminal cases. Basch says the duty to punish

118 Malarino, 680. 119  Cabrera García and Montiel-Flores v. Mexico. Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 220 ¶ 16 (November 26, 2010), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_220​_ing​.pdf. 120  Bulacio v. Argentina. Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R (Series C) No. 100 (September 18, 2003), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/ seriec​_100​_ing​.pdf. 121 Malarino, “Judicial Activism,” 691–693.

Two competing legal streams  121 also halts the competence of a domestic tribunal to take into consideration a defendant’s constitutional rights in making its decision. The fact that the Court acts a fourth instance tribunal can trigger the emergence of a “criminal law of the enemy.”122

3.5. Defence of local democracies and sovereignty (Supranationalisation III) The state-centric strand has developed arguments concerning state sovereignty and the democratic principle to respond to the constitutional strand and its hierarchical view of the Court’s role. These scholars’ approach may discard the existence of a model of transnational democracy as the constitutive basis of IACtHR authority. Their understanding of democracy might entail a local perspective, in which democratic states provide a sort of indirect democratic basis for the Court, but they do not directly explain the model of democracy they embrace in relation to the Court. Even if it is possible to infer an engagement with a certain type of ideal democratic model,123 it would be useful to see a more explicit view of their approach to democracy. This would involve a direct answer to Bogdandy’s work on the authority and legitimacy of international tribunals. Concerns about the principle of democracy are linked either to the relationship between local parliaments and the IACtHR124 or that between people and the IACtHR. In both cases, a point of discussion is the quality of the local democracies as criteria. Likewise, these authors usually claim that the protection of human rights has emptied the principle of sovereignty. The concerns about the democratic principle were raised initially by Gargarella as a result of the Gelman v. Uruguay case law. As mentioned in Chapter 3, the Court declared the incompatibility of the amnesty law because it clashed with the prohibition of amnesties imposed and reproduced through the practice of the Court in its contentious jurisdiction. In response, Gargarella built arguments related to the quality or democratic legitimacy of the legislation declared invalid by the Court in Gelman v. Uruguay. He compares Uruguay’s case with selfamnesty laws approved in Peru to highlight differences in democratic pedigree between the two. In the Peruvian case, he says the Court’s intervention was correct because it tried to address the failures of a dictatorship; however, it made a

122 Fernando Felipe Basch, “The Doctrine of the Inter-American Court of Human Rights Regarding States’ Duty to Punish Human Rights Violations and Its Dangers (Academy on Human Rights and Humanitarian Law: Articles and Essays Analyzing Reparations in International Human Rights Law),” American University International Law Review 23, no. 1 (2008): 213. 123 Gargarella seems to agree with the approach adopted by Petit. Interview, December 2016. 124 Leiv Marsteintredet, “The Inter-American Court of Human Rights and the Mobilisation of Parliaments,” in International Human Rights Judiciary and National Parliaments, eds. Matthew Saul, Andreas Føllesdal, and Geir Ulfstein (Cambridge: Cambridge University Press, 2017).

122  Two competing legal streams wrong decision in the Uruguayan case because it did not take into account the democratic nature of the proceedings leading to the approval of the amnesty law. More specifically, according to Gargarella, the Uruguayan amnesty law was approved by a democratic government and reaffirmed in two instances by popular vote. For him the amnesty law in Uruguay was adopted in a context of full civil and political liberty, although he recognised that Uruguayan democracy may have been affected by reasonable fears generated by events in neighbouring Argentina and by pressure exerted by the Uruguayan military (although not in the form of attempted coups).125 The Peruvian amnesty law, meanwhile, was adopted during a period of dictatorship to protect perpetrators of massive violations of human rights; it thus warranted a very low presumption of democratic legitimacy.126 For Gargarella, the Court ultimately considers the form or depth of democratic approval irrelevant.127 He sees its decision as resulting from its narrow understanding of democracy, which does not take into account what the vast majority of Uruguayan people had decided regarding past crimes. He argues that the Court defines democracy in a way that seems to be reducible to regular elections, and rules out a more robust way of understanding it, that is to say, in deliberative (public debate) terms.128 He argues in favour of this model of democracy as a robust view that could mean deferring to democratically adopted decisions in contexts of disagreement.129 A second approach concerning democracy focuses on promoting the idea that international human right bodies like the IACtHR can influence the dynamics of local parliaments in protecting human rights. For this strand, the influence of human rights bodies is driven by the logics of subsidiarity and margin of appreciation. In the case of the IACtHR, some authors are sceptical about its influence over parliaments due to its activist or hierarchical dynamics.130 However, they also propose alternatives that support IACtHR influence over parliaments’ legislative work. Marsteindretet, for example, indicates that the current dynamics and the type of decisions made by the IACtHR will not promote parliamentarian mobilisation because the Court only refers to democratic procedures to decrease the margin of deference, but also because the high level of specificity of its decisions

125 Roberto Gargarella, No Place for Popular Sovereignty: Democracy, Rights, and Punishment in Gelman v. Uruguay, SELA (Seminario Latinoamericano De Teoría Constitucional Y Política), 2013, accessed October 8, 2021, https://digitalcommons​ .law​ .yale​ .edu​ /cgi​ / viewcontent​.cgi​?article​=1123​&context​=yls​_sela; Gargarella, “The Constitutionalization of International Law.” 126 In 1992, Fujimori dissolved the Congress in a self–coup d’état, and the amnesty law was passed by the new Democratic Constituent Congress. 127 Gargarella affirms that for the Court, the relevant factor was not “the process of adoption” of the norm or “the authority that issued the amnesty law,” but rather “its ratio legis,” that is, “leaving unpunished serious violations of international law.” Roberto Gargarella, “Democracy’s Demands,” AJIL Unbound 112 (2018): 77. 128 Gargarella, “Democracy’s Demands,” 77. 129 Gargarella, 78. 130 Marsteintredet, “The Inter-American Court of Human Rights,” 267–269.

Two competing legal streams  123 does not leave much room for parliamentary deliberation. His view is that when a decision is a dictate, it impedes the improvement of the quality of parliamentary debates and deliberation.131 Marsteintredet demonstrates how the Court overlooks the quality of local democracies or democratic proceedings in its decision-making by comparing Gelman v. Uruguay and Granier and others (RCTV) v. Venezuela. He agrees with Gargarella that Gelman v. Uruguay represents a decision that clearly affected the principle of democracy because the Court did not assess the high quality of parliamentary and democratic proceedings in Uruguay as criteria to evaluate the amnesty law’s validity. He describes the case Granier and others (RCTV) v. Venezuela as an example in which the Court, in contrast, did take into account the low quality of the procedures that denied the renewal of RCTV’s broadcasting licence since they did not include norms of due process and affected freedom of expression.132 He concludes that those two contrasting cases demonstrate that “while low-quality domestic procedures may reduce a state’s margin of appreciation, high-quality parliamentary and democratic procedures do not increase a state’s margin of appreciation.”133 Regardless of the current landscape of the IASHR, Marsteintredet proposes an alternative that could bring a broader degree of Court influence to parliamentary mobilisation. Notably, his arguments rest on the idea that democracy becomes real through periodical elections and a set of institutions like parliament, judicial branch and executive power. He thus proposes that the IACtHR should look at the quality of parliamentarian proceedings or state procedures to provide a broader deference to states.134 He also calls for a lower degree of specificity in Court decisions.135 Marsteintredet says that in order to convert domestic parliaments into allies of the Court, it should follow the practice of the European Court of Human Rights, and stop making decisions that are dictates. Changing the tone of the mandates stemming from Court decisions could be the only way to reap the benefits of improved parliamentary legislation in the human rights area.136 Malarino too builds a critical stance on the specificity of reparations in the IASHR. Indeed, he argues that the features of the reparations dictated by the

131 Marsteintredet, 258. 132 Marsteintredet, 256. 133 Marsteintredet, 268. 134 Marsteintredet, 263. 135 In that sense, he believes advisory opinions have a broader potential to promote engagement with protection of human rights at the local level. 136 Marsteindretet borrows a paragraph from Hawkings and Jacoby to explain the differences between the IACtHR and the ECtHR. in the following terms: “The IACHR essentially tells state violators, Complete this list of remedies, and tell us when it’s finished. We will then check what you have done. By contrast, the ECtHR essentially tells states, You’ve done wrong. Find a way to undo or compensate for the harm you’ve caused and to avoid future harm. When it’s done, tell our designated third party, and they will check.” Marsteintredet, 257.

124  Two competing legal streams Court in contentious cases constitute an open threat to the legislative and executive branches of local democracies. Malarino argues that the Court’s interference in local subjects is evident when it orders the state party to modify its constitution. In his view, constitutional amendments fall under the exclusive competence of the state. Furthermore, he argues that IACtHR judges do not have popular legitimacy to decide on complex political issues requiring debate or political dialogue; so when the Court orders, for instance, the introduction of a new crime in the legal orders (as a form of reparation), it constrains the principle of sovereignty.137

3.6. Court and its democratic legitimacy Scholars working with the state-centric approach have not offered an in-depth discussion of whether the Court has democratic grounds for its activism. The fact that they use constitutional literature to criticise its activism implies that they would also use the constitutional analogy to shape their arguments on the legitimacy of the Court. Therefore, the state-centric approach should develop a clear argument on whether the Court has democratic grounds or why do they think it does not. A second aspect the state-centric stream should develop is its view on the need to democratise IACtHR proceedings, meaning it must clarify to what extent it adopts a non-ideal approach to the notion of transnational democracy or to what extent promoting values like transparency and deliberation does not relate to democratic theories beyond states. A recent monograph by Hernandez has developed standards concerning the democratic legitimacy of the Court according to some criteria that qualify as a state-centric approach. Hernandez asserts that even though there is no formal recognition of the control of conventionality in the ACHR, its competence to control national legislation is justified for its connection to human rights protection.138 However, even when affirming that human rights protection is a normative reason to support control of conventionality, Hernandez makes an explicit connection between control of conventionality and the democratic legitimacy doctrine. Thus, she affirms that control of conventionality lacks democratic legitimacy or, at most, that its level of democratic legitimacy is minimal. She therefore calls for promoting citizen participation in the decision-making process of the Court (through figures like amicus curiae) and inter-institutional dialogue between state organs and the Court. Indeed, she writes that citizen participation through amicus curiae is an example of participatory democracy. With regard to inter-institutional dialogue, Hernandez refers to Gargarella’s discussion of possible solutions to tensions between a local judiciary and

137 Malarino, “Judicial Activism.” 138 Diana Patricia Hernández Castaño, Legitimidad Democrática De La Corte Interamericana De Derechos Humanos En El Control De Convencionalidad (Bogotá: Universidad Externado de Colombia, 2014).

Two competing legal streams  125 parliament. Following his reflections on the local judiciary, Hernandez describes the notion of resending (reenvío), which would see the IACtHR asking the legislative branch to debate with more depth a decision (a law) that affects the rights recognised in the ACHR. For her the Court should adopt a practice of resending instead of ordering specific reparations. In her view, requesting specific decisions negates any room for local deliberation. Crucially, Hernandez’s main argument relies on constitutional law scholarship concerning the legitimacy of the local judiciary and local judicial review, but she does not justify why her work rests mainly on such literature and on studies concerning the standards of democratic legitimacy of constitutional tribunals or supreme courts. It becomes explicit that Hernandez has a conception of the IACtHR as similar to the idea of a constitutional court. So in what sense is the state-centric approach different from the constitutional stream?

3.7. Margin of appreciation as an alternative solution to supranationalisation The margin of appreciation doctrine is linked to the threat to subsidiarity and democracy that the state-centric approach condemns the constitutional perspective for in Latin America. The interest in the notion of margin of appreciation is recent in the region. Scholars justify their attention to this new subject of study with an argument based on the maturity of the governments in the region bringing a presumption of trust in their favour. Regardless of how relevant the doctrine is, the state-centric approach does not necessarily address to what extent subsidiarity and margin of appreciation are directly connected. Some authors, like Føllesdal, argue that they are different since the principle of subsidiarity expresses a commitment to leave as much authority to the more local authorities as possible, while arguments for a margin of appreciation reflect that certain individual interests require centralised authority above the state, and the centralised authority of the state is therefore at stake. As mentioned, this kind of discussion on the nature of margin of appreciation is largely absent in the Latin American context. The margin of appreciation doctrine has a long track record in the European System of Human Rights.139 It can be defined as a principle of interpretation and adjudication that determines whether a state or international judicial body should have the last word on determining if Convention rights are violated in a particular

139 It has been used in the European System of Human Rights since the case Lawless v. Ireland (1961). George Letsas, “The Margin of Appreciation Revisited: A Response to Føllesdal,” in Human Rights : Moral or Political?, ed. Adam Etinson (Oxford: Oxford University Press, 2018); A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007); Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality, Oxford Monographs in International Law (Oxford: Oxford University Press, 2012); Andreas Føllesdal, “Exporting the Margin of Appreciation: Lessons for the Inter-American Court of Human Rights,” International Journal Of Constitutional Law 15, no. 2 (2017): 359–371.

126  Two competing legal streams case. Some approaches to the concept remain descriptive and do not explain how a tribunal or the doctrine determines whether a subject is a matter of national sovereignty or whether the tribunal should establish the content of a particular human rights standard. In that sense, Legg defines the margin of appreciation as the judicial practice of assigning weight to the respondent state’s reasoning in a case on the basis of one or more of three external factors: democratic legitimacy, the common practice of states and expertise.140 In the same vein, Føllesdal maintains that the doctrine’s validity rests on epistemic factors such as the fact that local authorities may not necessarily be in the best position to protect minorities, and that the doctrine has potential to prevent the domination of international judges over people.141 In the Latin American context, scholars of the state-centric approach take note of the reluctance of judges and scholars of the constitutionalist strand to apply the concept. They concur with the constitutional approach on the inconvenience of using the margin of appreciation to solve early cases connected with gross human rights violations perpetrated by dictatorships, but engage more closely with the doctrine because they believe the region is now in a different historical and political stage. Although the state-centric approach attempts to develop the doctrine of margin of appreciation as a balance to the Court’s activism, only few of these scholars openly affirm that behind the reluctance towards doctrines of deference hides a desire of “many activists and scholars to transform the IACtHR into the new constitutional court of the Americas, with absolute powers to make uniform the interpretation and application of the Inter-American convention throughout the continent.”142 Candia argues that this can be proved by the rise of the doctrine of control of conventionality, the extended use of the test of proportionality and the declarations of the IACtHR’s own judges.143 In a nutshell, the state-centric approach in Latin America argues that it is necessary that the Court commit to using the doctrine of margin of appreciation, or indeed any deference doctrine, because this lack constitutes one of the democratic deficits affecting the Court. It creates a failure to respect the autonomy

140 Legg also refers to the idea that the way in which he approaches to understand how does the margin of appreciation work relies on the practice of the tribunals because it enables a coherent exposition of doctrine. This statement is in response to the fact that Letsas argues that “the best theory of the margin of appreciation may not be the one that ECtHR judges, one by one, share or have fully developed in their judgments.” Legg, The Margin of Appreciation, 17; George Letsas, “Two Concepts of the Margin of Appreciation,” Oxford Journal of Legal Studies 26, no. 4 (2006): 705–732. 141 Andreas Føllesdal, “Appreciating the Margin of Appreciation,” in Human Rights: Moral or Political? ed. Adam Etinson (Oxford: Oxford University Press, 2018). 142 Gonzalo Candia, “Comparing Diverse Approaches to the Margin of Appreciation: The Case of the European and the Inter-American Court of Human Rights,” accessed October 14, 2021, http://dx​.doi​.org​/10​.2139​/ssrn​.2406705, 22. 143 Candia, “Comparing Diverse,” 22.

Two competing legal streams  127 of “democratic states,” and provides the impression that the Court does not admit different interpretations, instead of the notion of dialogue that the constitutional approach seems to promote.144 The state-centric approach, then, provides a normative argument focused on the democratic nature of Latin American governments. Indeed, the argument on states’ democratic nature is drawn in terms of the progress or evolution of the region. The state-centric approach calls for applying doctrines of deference because the states in question are mostly well-functioning democracies, with court cases moving away from claims of mass atrocity to issues such as the right to same-sex marriage.145 Føllesdal has argued in favour of the margin of appreciation, explaining that some Latin American countries have been ranked as democratic in worldwide surveys measuring democracy. Additionally, he indicates that some states party to the Council of Europe are less democratic that Latin American states, but this has not prevented the application of the margin of appreciation by the ECHR.146 He proposes that the IACtHR follows ECHR practice, since he considers the context of the Latin American region and the European region as similar in terms of democratisation. A second argument links to the idea of promoting deliberative proceedings in the local arena. Føllesdal argues that the application of the margin of appreciation “nudges” states to promote democratic deliberation and the independence of the judiciary.147 Other authors argue in favour of the margin of appreciation by citing the practice of the Court in order to discard the idea that the doctrine is foreign to the IASHR. In his account of the Court’s case law, Contesse highlights how the Commission and the Court have applied the margin of appreciation towards its case law in exceptional cases. The author refers to the use of the concept in relation to the right to vote in Guatemala, in which the Commission referred to the local context as the place for analysing the dimensions of Article 23 (right to vote), from “which the margin of appreciation allowed by international law can emerge.”148 Contesse affirms that the Commission and the Court have failed to explain why and how the doctrine should be used, but has not gone further in explaining on how the margin of deference would work; at most he considers that it would be relevant to apply Letsas’ structural and substantive definition of it.149 In general, Contesse concurs with Gargarella that the quality of a democracy shall be the rule to measure the degree of margin of appreciation given to states. Contreras agrees on the necessity of a doctrine of deference or margin of appreciation, but affirms that generic support for it is too broad because it does

144 Candia, 22. 145 Contesse, “Contestation and Deference.” 146 Føllesdal, “Exporting the Margin of Appreciation,” 371. 147 Føllesdal, 371. 148 Contesse, “Contestation and Deference,” 141. 149 Contesse, 142.

128  Two competing legal streams not rest on the specific particularities of the IASHR.150 One step would be to provide a general framework for the doctrine. Regarding the connection between margin of appreciation and democracy, that is to say, deference in favour of states, authors who support the doctrine’s adoption should make clear which concept of democracy they embrace. For instance, Contesse seems to follow Føllesdal who embrace a model of representative democracy, but has not outspoken what he understands as democracy.151 Similarly, although Gargarella espouses a model of deliberative democracy, he has not clarified the connection between a doctrine of deference and the concept of democracy itself. In that sense, another element requiring discussion is the way in which subsidiarity, margin of appreciation and international human rights law are related. For Besson, for example, Letsas’ and Føllesdal’s approaches, among others, do not capture the relationship between democracy and human rights. For Besson, understanding that relationship is necessary to build a proper theory of subsidiarity in international human rights law.152 Contreras has also made an effort to explain more concretely how the margin would work in some specific cases. He presents the work of academics who, in his view, advance arguments in favour of the margin of appreciation with more nuanced substantive issues.153 He refers to the work of Abramovich, for example, who argues in favour of a doctrine of deference through the procedural rules applied in the system.154 In that sense, Contreras refers to rule of the fourth instance as a limit the Court has imposed itself. His argument here is very generic, though, and apart from explaining the content of the rules, it does not provide a clear analysis of the application in concrete cases. Abramovich does not provide for the application of the concept of deference in relation to the content of rights, but still works on the assumption that the Court should have the last word. More specifically, he believes the Court should not provide deference in cases concerning structural inequalities that involve vulnerable groups. In such cases, the Court

150 Contreras, “National Discretion,” 63. 151  Føllesdal, “Appreciating the Margin of Appreciation.” 152 Samantha Besson, “Subsidiarity in International Human Rights Law—What Is Subsidiary about Human Rights?,” The American Journal of Jurisprudence 61, no. 1 (2016): 74. Besson criticises the fact that Føllesdal and others identify human rights subsidiarity with other conceptions of the principle that prevail in other legal and political contexts (federal polity or in Catholic social doctrine). 153 Contreras suggests also the possible criteria to apply the margin of appreciation in cases concerning the right to freedom of speech. Pablo Contreras Vásquez, “National Discretion.” It is also particularly relevant to point out that in the Inter-American System, the right of the freedom of speech has been drawn in terms of a right with a preferred position; thereby, the proposal of Contreras may be an attempt to balance the above-mentioned direction in the case law of the Court. 154 Contreras, “National Discretion,” 65; Víctor Abramovich, “Autonomía y Subsidiariedad. El Sistema Interamericano De Derechos Humanos Frente a Los Jueces Nacionales,” in El Derecho en América Latina. Un Mapa Para El Pensamiento Jurídico Del Siglo XXI, ed. César Rodríguez Garavito (Buenos Aires: Siglo XXI, 2011), 223–225.

Two competing legal streams  129 may defend those who are not protected by the state, and is entitled to exert a broader encroachment.155 The studies that support the application of the concept of deference or margin of appreciation in the IASHR should take into account what is behind the notion itself.156 It is essentially a contested concept that necessitates contrasting the arguments adopted by the state-centric approach such as democracy with the normative contestability of human rights.157 A more complete critique of the concept as a response to the constitutional approach will be developed in Chapter 5.

3.8. Democratic transformation at the local level The state-centric approach embraces the idea that democracy and human rights are directly connected, but does not necessarily explain with any thoroughness how are they linked.158 In general terms, in the state-centric scholars’ narrative, the end of the dictatorships gave rise to the adoption of democratic forms of governments that enabled the revindication of human rights.159 For them, the Court played a role in promoting human rights and thus in strengthening the democratic principle at the local level. In that sense, they embrace the idea that international human rights bodies trigger or strengthen democratisation processes.

155 Abramovich, “Autonomía y Subsidiariedad,” 222. 156 Contesse, Jorge. “Contestation and Deference in The Inter-American Human Rights System.” Law and Contemporary Problems 79, no. 2 (2016): 123–145, Andreas Føllesdal, “Exporting the Margin of Appreciation: Lessons for the Inter-American Court of Human Rights,” International Journal of Constitutional Law 15, no. 2 (2017): 359–371.; Bertelsen, Soledad A margin for the margin of appreciation: Deference in the Inter-American Court of Human Rights, International Journal of Constitutional Law 19, no 3 (2021), 887–913. 157 George Letsas, The Margin of Appreciation Revisited: A Response to Føllesdal (Oxford: Oxford University Press, 2018), 296. See Letsas who argues against Føllesdal and his arguments about democratic pedegree of local democracies and his vision of a minimalist judicial review. For example, the ones who argue in favour of that doctrine could construct a theory of deference that takes into account some of the critiques that argue that the notions of deference and discretion are ultimately unhelpful. Clérico has also recently introduced a critical approach to the notion of margin of appreciation in the Inter American System of Human Rights. Laura Clérico, “El Argumento De La Falta De Consenso Regional En Derechos Humanos. Divergencia Entre El TEDH y La Corte IDH,” Revista Derecho Del Estado, no. 46 (2020): 57–83. 158 In this regard, Besson has developed theoretical efforts to explain the connection between human rights and democracy or human rights in a context of the rise and entrenchment of liberalism. Samantha Besson, “The Legitimate Authority of International Human Rights: On the Reciprocal Legitimation of Domestic and International Human Rights,” in The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, eds. Johan Schaffer, Andreas Føllesdal, and Geir Ulfstein (Cambridge: Cambridge University Press, 2014). 159 Contesse, “The Final Word?”; Víctor Abramovich, “From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System,” Sur 6, no. 11 (2009): 7–37.

130  Two competing legal streams In general terms, the state-centric approach does not therefore necessarily differ from the constitutional perspective; both engage with aspects of a representative or procedural model of democracy (for instance, deliberative) related to the protection of human rights in terms of substantive equality. In relation to the intervention of the Court or the Commission on situations related to the social dimension of civil rights or equality, there is no clarity in the position of Contesse or Contreras, for example. Contesse provides information on the problems that the organs of the System face—such as in the Belo Monte v. Brazil case—and portrays it as an example of the expansive powers they hold, but he does not provide a clear view on the intervention of international bodies on issues concerning vulnerable groups and equality.160 Does Contesse totally reject the intervention of the Court on issues concerning structural inequality and vulnerable groups? Does he have an intermediate position on this subject? The state-centric approach has developed two aspects of the concept of democracy. The first is an interest in the concept of democracy in terms of inclusion or equality and non-discrimination. Since the state-centric approach recognises the challenges of substantive democracy, it is also focused on the protection of the rights of disadvantaged groups like women, LGTB people and indigenous people. By the same token, they seem to recognise that external factors contribute to these structural inequalities. However, it is unclear to what extent these roots causes are included as part of a deeper reflection for the sake of change or for readdressing the law, instead of just including them in explanations of specific situations.161 To what extent does the state-centric approach differ from the constitutional approach, which also recognises the roots of structural inequalities? To what extent do they focus exclusively on the role of the judges and states as actors for challenging those structural causes of inequality? Some authors of the state-centric approach attempt to link the concept of human rights with a concept of deliberative democracy. Gargarella tends to define certain indigenous rights under the parameters of deliberation. In a recent publication, he portrays the right to consultation of indigenous people as an example of democracy and its connection to human rights beyond individuals’ electoral rights such as the right to equality, non-discrimination and the protection of disadvantageous groups.162 But Gargarella has not addressed his own view on the topic of democracy and substantive equality, because his approach has been focused on the uniformity of amnesty laws and how they affect the princi-

160 Jorge Contesse “Resisting the Inter-American Human Rights System,” The Yale Journal of International Law 44, no. 2 (2019): 179–238. 161 For example, Gargarella sustains that to achieve substantive equality, it is necessary to reflect on the organic part of the Constitution that focuses on the structure of power of the governments. For him, any achievement on the protections of substantive equality means focusing on the engine room of the Constitution. Roberto Gargarella, Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution (New York: Oxford University Press, 2013). 162 Gargarella, “Democracy’s Demands.”

Two competing legal streams  131 ple of democracy. It would be useful to understand how Gargarella connects a deliberative approach to the protection of civil, political, and social rights in the international arena. Does he think it is possible to assign a deliberative vein to the IACtHR?163 Is his critique of the Court only focused on protecting civil and political rights?

Conclusion This chapter has described the main tenets of the two discourses on the legitimacy of the Court. It has introduced them as if they were competing legal streams in order to show the apparent clashes among them. Points of interest for the two legal perspectives described here include the argument of democratic transformation, the idea of the Court as the last interpreter of the ACHR, the notion of judicial dialogue and the transnational democratic grounds sustaining the Court’s authority. However, Chapters 5 and 6 will demonstrate that the two legal discourses are not in real opposition. The concept of ideology as a tool of analysis will show that they both embrace a model of constitutionalism and democracy as neutral products of progress rather than products of political choices and historical events in the region. Similarly, ideology critique will be used to discuss the possibility that the discourses on the Court’s legitimacy may contribute to a vision of the relationship between the IACtHR and local territories that disempowers people, profiling the Court as a necessary agent for transforming democracies and human rights in the region.

163 According to Langford, Gargarella’s approach shows “how courts provide a space for excluded voices, signal to states which arguments must be taken seriously, remand some decisions back to legislatures for further consideration, promote and oversee the exchange of arguments, force the consideration of structural problems, create new forums for public discussions, and set criteria for development of new policies” Malcolm Langford, Social Rights Adjudication: An Interdisciplinary Perspective (PhD diss., University of Oslo, 2014).

5

State-centric vs. constitutional discourses? Confluence rather than opposition

Introduction This chapter introduces the critique of the two discourses on the legitimacy of the IACtHR. It could be defined as a bridge between the explanatory part of the book and the author’s reflections on the Court’s legitimacy. It is divided into two main parts, each comprising two sections. The first part, encompassing Sections 1 and 2, is devoted to providing a quick recapitulation of the contents of the previous chapters. The second part, including Sections 3 and 4, introduces the arguments with regard to the ideological flaws present in the state-centric and constitutional discourses on the legitimacy of the Court. Section 1 provides information about the understanding of the legitimacy of the IACtHR grounding this book. Somehow, this concept is more implicit than explicit in the ongoing debates with which the scholars developing the two discourses engage. It is still there, however, and it frames these scholars’ concerns about the role of the IACtHR in the Latin American context. Section 2 presents a summary of the main ideas driving the premises that ground the understanding of the legitimacy of the Court. This section provides a description of the epistemic communities that build the discourses on this democratic legitimacy, as well as the concept of ideology that is used to criticise the premises that ground these discourses. Section 3 shows the similarities of the two competing discourses. It explains how the scholars of the two discourses engage in similar terms with the use of the constitutional analogy, as well as with the notions of dialogue and margin of appreciation. It also refers to the notion of democratic transformation that is part of the notion of constitutionalism that the two discourses share. Section 4 introduces an analysis of the use of the constitutional analogies and points out that this is not a new task in the field of international law. It describes how constitutional analogies have served as instruments of informal reform of international institutions, and to justify the expansion of legal experts’ authority to shape our understanding of the world. Moreover, Section 4 shows how the use of the constitutional analogy in the Inter-American System of Human Rights is ideological, since it naturalises one exclusive understanding of the world that corresponds with liberalism. In the same vein, this section discusses certain aspects DOI: 10.4324/9781003200888-6

State-centric vs. constitutional discourses?  133 related to the notion of dialogue as a tool to obscure the consequences of adopting a constitutional approach to the nature of the IACtHR role. Finally, this section addresses how engaging with the constitutional analogy helps legitimate legal experts, or judges, to be the ultimate interpreter of the meaning of rights, democracy and constitutionalism in the Latin American region.

1. The criteria grounding the discourses on the legitimacy of the Court This section helps create an understanding of how the two perspectives have addressed their concerns on the legitimacy of the IACtHR. Chapter 4 identified the premises that ground the understanding of the two discourses, premises related to the constitutional attributions both perspectives embrace when profiling the IACtHR, as well as the notions of dialogue and margin of appreciation. Linked with constitutional attributions are other premises that ground the legitimacy of the Court in terms of its role as democracy-builder.1 Whereas the state-centric and constitutional discourses have been shaped in the specific Latin American landscape, these debates can be situated in a more complex and broader context explained in Chapter 1. Indeed, the discourses on the legitimacy of the IACtHR and how it has been addressed by Latin American scholars share some of the issues that have been studied in the European context, as well as those stemming from the specific dynamics of the Court and Latin American lawyers’ understanding of law. Chapter 1 of this book introduced how international tribunals’ legitimacy was an object of study in relation to some other tribunals, such as the European Court of Human Rights.2 Concerns about these tribunal’s legitimacy became relevant in a context that has been depicted as a turning point in the nature and history of internal law and relations. The mainstream scholarship has depicted the end of the Cold War as the start of a new liberal internationalism,3 with the advances to international rule of law and the principle of democracy at the international, national and local levels, better developed and increasingly complex international structures4 and the proliferation of international tribunals (and therefore of international adjudication). As discussed

1 See Section 3 of this chapter. 2 Richard Bellamy, “The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the Hirst Case,” in The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, eds. Johan Karlsson Schaffer Andreas Føllesdal, and Geir Ulfstein (Cambridge: Cambridge University Press, 2014). 3 Anne-Marie Slaughter Burley, “Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine,” Columbia Law Review 92, no. 8: 1907–1096. 4 Thomas Skouteris, The Notion of Progress in International Law Discourse (The Hague: Asser Press, 2010); Pierre-Marie Dupuy and Jorge E. Viñuales, “The Challenge of ‘Proliferation’: An Anatomy of the Debate,” in The Oxford Handbook of International Adjudication, eds. Cesare P.R. Romano, Karen J. Alter, Chrisanthi Avgerou, Pierre-Marie Dupuy, and Jorge E. Viñuales (Oxford: Oxford University Press, 2013), 136–157.

134  State-centric vs. constitutional discourses? in Chapter 1, scholars studying this proliferation position international tribunals as agents that exert a legal authority exceeding the original competences states gave them when they were created. If these tribunals were initially just dispute settlement bodies, the mainstream scholarship now attributes general effects to their decisions, and validates the informal expansion of their competences. This is when legitimacy becomes relevant, because the concept enables a discussion of the reasons justifying international tribunals’ right to rule and making their rulings enforceable within states. If their legitimacy was initially based on the consent of states, discussions now ask whether their authority also stems from the values that root the international legal order, that is, the protection of human rights, democracy and justice.5 This understanding of the development and progress of international tribunals’ functions has also framed the debate between the two discourses on the legitimacy of the IACtHR. As Chapter 4 has shown, the two discourses argue about the Court’s powers to make decisions that do not stem from the consent of states. More concretely, they discuss whether the Court is entitled to exert powers or competences like control of conventionality or to be the ultimate interpreter providing content to a ius constitutionale commune. They also debate whether its case law threatens or enhances democracy through human rights protection. Thus, even if none of the Latin American scholars6 spell out the fact that their debates about the Court are related to the notion of legitimacy—the normative reasons that justify its right to rule—they are actually discussing exactly that. Finally, although the discourses on the legitimacy of the Court locate themselves as part of a broader landscape and reproduce some of the tenets or current debates on the legitimacy of international adjudication, those discourses are grounded within the specific features of Latin American legal scholarship. That is, the debates on the Court’s legitimacy are informed by these legal scholars’ understanding of the notion of constitutionalism, the role of constitutional judiciary and its activism and the interaction between international and constitutional law. The following sections provide a broader analysis of this statement.

5 Laura Valentini, “Assessing the Global Order: Justice, Legitimacy, or Political Justice?,” Critical Review of International Social and Political Philosophy 15, no. 5 (2012); Nienke Grossman, “The Normative Legitimacy of International Courts,” Temple Law Review 86, no. 1 (2013); Silje Langvatn and Theresa Squatrito, “Conceptualising and Measuring the Legitimacy of International Criminal Tribunals,” in The Legitimacy of International Criminal Tribunals, eds. Nobuo Hayashi and Cecilia Marcela Bailliet (Cambridge: Cambridge University Press, 2017). 6 There are exceptions, of course: Bogdandy and Venzke have formulated arguments addressing the idea that the legitimacy of international adjudication is informed by a principle of transnational democracy. This means the notion of legitimacy is not entirely tacit, especially as Bogdandy has close links with Latin American scholars.

State-centric vs. constitutional discourses?  135

2. On the analysis of the actors and their discourses This section reiterates some aspects of the critique against the two discourses on the legitimacy of the Court. The reader should remember that the two discourses, that is, the constitutional and state-centric, emanate from the actions of a legal epistemic community,7 and that the analysis is based on the Marxist tradition of ideology. As described in Chapter 4, the concept of the epistemic community was developed by Haas to explain how decision-makers and politicians interact with scientific and professional communities that provide expert knowledge related to a topic.8 They share ideas and resources to promote themselves (in terms of reputation and knowledge).9 Moreover, it is particularly important that the reader understands that the epistemic community that drives the discourses on the legitimacy of the Court is part of a more complex structure shaped by hegemonic (economic and political) powers. The theories, concepts and arguments driven by these legal communities are informed by those structures, and at the same time these legal scholars reinforce or reproduce the meanings and concepts that are part of those larger structures. With regard to the epistemic communities, the two competing approaches to the legitimacy of the IACtHR are driven by constitutional lawyers, former judges of constitutional tribunals and possible future candidates for appointment as IACtHR judges. The scholars who promote both perspectives share spaces of debate in annual meetings in several Latin American cities and in Heidelberg at workshops organised by the Max Planck Institute. Indeed, authors of the statecentric approach like Contesse and Gargarella are participants in the meetings related to the development of ius constitutionale commune.10 Thus, the statecentric scholars interact with the constitutional scholars in the same spaces and share knowledge.11

  7 See definition in Chapter 4.   8 The concept of epistemic community has origins in that of “episteme,” as widely used by Foucault; it was first used in 1975 by Ruggie in reference to Foucault. The description of epistemic communities in this chapter takes a Marxist, not a Foucauldian, approach, as it focuses on ideology and false contingency. John Gerard Ruggie, “International Responses to Technology: Concepts and Trends,” International Organization 29, no. 3 (1975). Mai’A K. Davis Cross, “Rethinking Epistemic Communities Twenty Years Later,” Review of International Studies 39, no. 1 (2013).  9 Ruggie argues that epistemic communities can arise from bureaucratic positions, technocratic training, similarities in scientific outlook and shared disciplinary paradigms. 10 They were both participants in the ICCAL Annual Meeting in December 2016. In the same way, Gargarella has contributed to the collective publication on Transformative Constitutionalism in 2017. Roberto Gargarella. “The ‘New’ Latin American Constitutionalism: Old Wine in New Skins,” in Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune, eds. Armin von Bogdandy, Eduardo Ferrer MacGregor, Mariela Morales Antoniazzi, Flávia Piovesan, and Ximena Soley (Oxford: Oxford University Press, 2017). 11 As described in Chapter 4, some studies define the judges of international tribunals and the legal communities that interact with them as epistemic communities. The case of the

136  State-centric vs. constitutional discourses? What’s more, the actors of this epistemic community who support the constitutional approach are closely connected to the IACtHR judges. Indeed, some of the judges at the IACtHR are active members of the constitutional discourse. For example, former judge Sergio García Ramirez (Mexico) and judge Eduardo Ferrer Mac-Gregor (Mexico),12 who have helped create the notion of control of conventionality and profile it as a sort of control of constitutionality, frequently publish articles and books related to the existence of a ius commune in collective books as part of the aforementioned ius constitutionale commune project run by the Max Planck Institute (ICCAL).13 Their publications strengthen the ideas and concepts the Court has built through its case law. Moreover, as Section 4 will show, these judges’ particular understanding of the Court fits with the tenets of the Max Planck Institute projects on the international authority and democratic legitimacy of international adjudication. This interaction can be interpreted in the following way: Since the judges or scholars of the constitutional discourse locate themselves in two spaces— the courtroom and the networks in which they participate—a dynamic of selfunderstanding of the role of the Court and self-interpretation of its decisions plays out through them. Then, in the interaction of the constitutional scholars with the judges of the Court, a process of self-validation occurs.14 This does not mean that the constitutional discourse exactly reproduces the Court’s selfunderstanding. For example, IACtHR Judge Humberto Sierra Porto (former judge of the Constitutional Court of Colombia) does not necessarily support all the implications of the use of constitutional analogies to shape the authority and legitimacy of the IACtHR. To illustrate, he disagrees with one of the arguments that the constitutional discourse supports, that is, that the direct protection of social rights is a competence of the IACtHR.15 Taking this into account, the

Andean Court of Justice is one of these examples. See Karen J. Alter and Laurence R. Helfer, “Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice,” International Organization 64, no. 4 (2010). 12 The book focuses mainly on the scholars who are actively driving arguments related to the legitimacy of the Court. Therefore, it does not engage with the contributions of former Judge Cançado Trindade. However, he was one of the main proponents of the universal perspective or top-down approach to the legitimacy and authority of the IACtHR. 13 These publications have been mentioned in Chapter 4. They include Ius Constitutionale Commune en América Latina. Rasgos, Potencialidades y Desafíos, Soberanía y Estado abierto en América Latina y Europa. Another book is Bogdandy’s Hacia un nuevo derecho público: Estudios de Derecho Público Comparado, Supranacional e Internacional, the Spanish translation of The Exercise of Public Authority by International Institutions: Advancing International Institutional Law. 14 The author is indebted to Stein Bolstad Skjelbred for the argument on self-understanding and self-interpretation between the Court and the two legal discourses on the legitimacy of the Court. 15 Voto Parcialmente Disidente Del Juez Humberto Sierra Porto: Case of Lagos Del Campo v. Peru. Preliminary Objection, Merits, Reparations, and Costs (Judgment of August 31, 2017. Series C No. 340). The decision and the vote of Judge Humberto Sierra Porto are only in Spanish.

State-centric vs. constitutional discourses?  137 self-understanding of the Court is still independent of constitutional discourse scholars’ interpretation of its case law; the interpretation can vary from or not reproduce the standards given by the Court. In the same vein, as the following sections will further elaborate, although the state-centric discourse seems opposed to the constitutional discourse, the interaction and exchange of ideas between the scholars of the two groups is active. Rather than two epistemic communities, the scholars of the constitutional and state-centric discourses are part of one. Leading representatives of the statecentric discourse include Roberto Gargarella (Argentina) and Jorge Contesse (Chile). In their critique of the role of the Court as a supraconstitutional tribunal, they engage with constitutional categories to either criticise or implicitly validate it. When they use constitutional categories to build arguments against the constitutional scholars, these latter become part of the dynamic of self-interpretation they carry out. Some information about the scholars who lead the competing perspectives on the role of the Court is introduced here because these legal experts and the documents they produce constitute an apparatus of law-making. They contribute to creating a particular mindset of what law is, what capacity the law and the judiciary have to transform reality and what the role is that the international and national institutions play when they create or apply law. The aim is to apply the concept of ideology to show how these discourses are ideological and contribute to create a notion of rights and democracy that are in essence de-radicalised. Analysing the two discourses (constitutional and state-centric) under the lens of ideology in order to point out to what extent they are or are not in real opposition requires identifying the objects of the critique (the premises, the arguments and the consequences of these arguments). The process reveals the two discourses’ shared and eventually different understandings of the IACtHR. Some objects that are part of the discourse may be implicit or subtle, but the critic is, of course, entitled to address some of her concerns about the more hidden aspects that ground a discourse. Thus, the analysis implies that certain arguments that the book raises challenge some of the implicit tenets or premises supporting the two discourses’ arguments. Indeed, the book will make use of the critique of existing traditions of thought to understand the tacit premises that ground them.16 While part of the exercise of criticising implies understanding the tacit premises (in what is known as phantom theory), it helps to bring those preconditions to light to make them distinguishable.17 The same idea is applicable to the consequences triggered by the arguments of the two discourses. If scholars’ or agents’ actions have consequences on an audience’s understanding of the world, it can be helpful to formulate a hypothetical landscape of how this works. Even if it does not adjust precisely to their

16 Johan Schaffer, Democrats without Borders: A Critique of Transnational Democracy (PhD Diss., University of Gothenburg, 2008). 17 Schaffer, Democrats.

138  State-centric vs. constitutional discourses? thinking, we can formulate better or more explicitly the ideas grounding their discourse.18 Moreover, as part of the analysis of the two discourses, it is important to indicate that the critique of the state-centric approach will address three particular aspects that are present in the way in which they shape or build their arguments. This chapter as well as Chapter 6 will show how the state-centric approach shares with the constitutional approach the same premises or departure points and arrives at the same conclusions. In addition, this chapter shows how the statecentric approach remains silent on some important aspects or arguments driven by the constitutional approach.19 Silence implies a confirmation of the arguments of the constitutional approach, or a need for clarification or better explanation from the state-centric scholars. The analysis of the two discourses will focus on the explicit arguments and their implicit presumptions and consequences, and will now highlight in what sense the notion of ideology is used in this analysis. Chapter 2 explained that ideology “refers to the ways in which meaning serves, in particular circumstances, to establish and sustain” asymmetrical relations (relations of domination).20 That chapter also addressed some strategies grounding relations of domination, such as legitimation,” “dissimulation,” “unification,” “reification” and “fragmentation.”21 While this statement about the concept of ideology and its link to the analysis of discourses seems directly related to the poststructuralist and post-Marxist tradition, this research is not positioned there. In post-Marxism, the analysis of discourse rests on the premise that reality does not exist, but that language signifies it.22 Discourses then constitute reality. In contrast, this research is grounded on the idea that the meanings or contents of the discourses are not contingent but

18 Schaffer also states that the practice of arguing should be based on the notion of generosity. This notion implies that “we should give the benefit of doubt to the scholars that we are evaluating and criticizing.” In his view we should be just, but this is also a practical advice: the critic’s argument becomes less vulnerable to counter-attack. Schaffer, 24. 19 The author is indebted to Malcolm Langford for his suggestion on the categories that constitute the tools of analysis of the state-centric approach. 20 Terry Eagleton, Ideology: An Introduction (London: Verso, 1991). Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford: Oxford University Press Incorporated, 2003). 21 John B. Thompson, Ideology and Modern Culture: Critical Social Theory in the Era of Mass Communication (Cambridge: Polity Press, 1990), 59. 22 Indeed, Žižek has raised a critique of Foucauldian discourse analysis. He points out that despite Foucault’s work to show the discursive materiality of scientific thought, he fails to recognise the real in what appears to be only symbolic fiction: “That is to say, the true philosophical art is not to recognize action behind reality—i.e. you experience something as reality and through the work of deconstructive criticism you unmask it as mere symbolic fiction—but to recognize the Real in what appears to be mere symbolic fiction.” Slavoj Žižek, Conversations with Žižek (Cambridge, Malden, MA: Polity, 2004), 104. Foucault achieved the de-reification of social, historicised concepts that were apparently without history. However, not everything is about the construction of reality; there is also a necessary process of subjectivation. See Fabio Vighi and Heiko Feldner, “Ideology Cri-

State-centric vs. constitutional discourses?  139 are shaped by political, historical and social context. Then the book does reject the idea that a discourse is previous to everything else, which elides distinction between thought and material reality.23 However, even if this book does not align with the poststructuralist approach to the study of discourses, the notion of ideology can be grasped as a discursive practice. This understanding means focusing on discursive effects and not on the language as a signifier. Since ideology entails a naturalisation of social reality (through naturalisation and reification, among other strategies described in Chapter 2), discourse as ideology and the understanding of meanings as tools of domination are based on the idea that discourses are inscribed in ideological relations that shape that social reality. Then, the analysis of discourse in terms of ideology aims to show “where the power impacts upon certain utterances and inscribes itself tacitly within them.”24 Moreover, if the discourses are influenced by hegemonic powers and their strategies to maintain domination, then the discourses also have a constitutive role, since what matters is that a meaning sticks.25 The notion of ideology used in this book helps discuss how the use of the constitutional analogy and the argument of democratic transformation can contribute to naturalising relations of domination between those that drive the forces of the economic and political model and those that are disposed or subordinated to the rules imposed by capitalism. More specifically, the book is concerned with the ideological roots that portray liberal constitutionalism, democracy and human rights as symbols of progress and transformation. In showing that the two discourses engage with or contribute to ideological strategies of naturalisation, the book demonstrates that they are not in real opposition. And while pointing out the ideological flaws of their arguments, the author calls on all of us (legal scholars and advocates) to think outside the box, to think about possible alternatives in which law is not an end in itself or does not necessarily serve the hegemon. Moreover, this account of ideology as a discursive practice of domination is informed by a Gramscian perspective. That is, one in which domination involves an active process of production and reproduction and mobilisation of popular consent, which can be constructed for a dominant group that holds this consent and uses it.26 Then, domination is not related necessarily to the notion of force, but it rests on the confluence between force and moral ideas.27 In the same

tique or Discourse Analysis?: Žižek against Foucault,” European Journal of Political Theory 6, no. 2 (2007): 141–159. 23 Eagleton, Ideology. The author’s disagreement with the post-Marxist and post-structuralist approaches to discourses is also in direct relation to the indeterminacy of language. The indeterminacy of language implies accepting that reality does not influence the content of concepts. 24 Eagleton, 223. 25 Eagleton, 223. 26 Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge: Cambridge University Press, 2003), 18. 27 Rajagopal, International Law, 18.

140  State-centric vs. constitutional discourses? vein, this notion of domination could be useful to understand the relationship between the people and the legal experts,28 but also to trace a link between the legal experts and the hegemonic powers of the world. For example, some argue that lawyers play an elitist role that reflects state positions or positions in favour of capitalism (market economy) while ignoring social reality.29 The next section introduces the similarities in the two discourses on the legitimacy of the IACtHR.

3. Similarities masked as disagreements in the two discourses on the legitimacy of the Court Chapter 4 described two competing discourses on the legitimacy of the IACtHR. It introduced the main arguments of the two perspectives as if they were in open debate about the role of the Court and the tenets of its legitimacy. Depicting the individuals that carry out the two discourses as having a real discussion may look outdated; indeed, the debate has to be understood as metaphorical. What we find is two apparently contending mindsets on the legitimacy of the Court.30 The main premise of this book is that the two discourses on the legitimacy of the IACtHR are not in real opposition, as one can perceive initially from the way in which they have shaped their arguments in favour or against the activism of the Court. Their common theoretical approach to the IACtHR’s role rests on three aspects or canons—the constitutional analogy, subsidiarity and democratic transformation. These have been picked from the descriptions created by the two legal streams, which show a strong background in constitutional law.31 They comprise specific elements that allow a comparison between the two approaches, which also emerges from the gaps in their arguments. The following sections compare the state-centric approach and the constitutional approach to the legitimacy of the Court. It aims to show how the two discourses’ similarities face problems of both ideology and false contingency. The comparison encompasses the explicit arguments as well as an interpretation of the sometimes implicit premises grounding these arguments. It also refers, as already explained, to some of the consequences or implications of the arguments of the state-centric approach. As mentioned too, the arguments of the constitutional approach, in particular, mirror the case law of the Court, since the actors who are part of that approach have strong connections with the Court itself; that is, they are judges or may aspire to be. In this comparative exercise, some aspects related to the Court’s self-understanding of its role will be addressed.

28 For example, Rajagopal argues that lawyers in the Third World overlook “the ongoing peoples’ movements around the environment in their own societies.” Rajagopal, 20. 29 See critique in Chapter 6. 30 Hidemi Suganami, The Domestic Analogy and World Order Proposals (New York: Cambridge University Press, 1989), 22. 31 The chosen criteria fit with a current tendency in the international law field to use constitutional analogies and question the reconfiguration of the principle of subsidiarity.

State-centric vs. constitutional discourses?  141

3.1. The constitutional analogy As mentioned in Chapters 3 and 4, the case law of the Court and the two legal discourses on the legitimacy of the Court have used constitutional analogies to define and discuss its authority.32 The use of the constitutional analogy is present in the way in which the Court has defined the concept of control of conventionality in similar terms to control of constitutionality. The analogy also appears in the way in which the Court refers to the general effects of its case law, as well as with regard to the notion of ius constitutionale commune. The scholars of the constitutional discourse support the self-constructed image of the Court as a constitutional tribunal when they develop the aforementioned idea of a ius constitutionale commune and the notion of dialogue. The state-centric approach, rather than challenging this analogous image of the Court, ultimately validates it: These scholars engage with the notion of a ius commune when not challenging its existence or the terms in which it has been framed, but also when they embrace and support the idea of dialogue. Section 4 of this chapter develops a critical argument to show how engaging with the notion of ius constitutionale commune and dialogue masks a hierarchical approach to the Court’s role, and naturalises notions of human rights and democracy that serve to establish and maintain relations of domination. The notion of ius commune fits a notion of constitutional liberalism that has been portrayed as a natural pathway to follow in the Latin American context. Similarly, the chapter provides arguments to show how embracing a model or notion of a ius commune built by the judiciary means portraying legal experts as the ones who are entitled to define the common values of the region. This idea will be also addressed in Section 4. Engaging with the use of the constitutional analogy implies that both discourses, explicitly or implicitly, accept or admit that the legitimacy of the Court’s authority stems not only from the consent of the state, but also from the values, principles or norms that are the basis of a ius constitutionale commune. Studying the use of the constitutional analogy shows that the state-centric approach has

32 Chapter 3, provided information related to the practices and votes of judges who describe the competences of the Court as if they were constitutional instruments: Concurring Opinion of Ad-Hoc Judge Eduardo Ferrer Mac-Gregor Regarding the Case of Cabrera García and Montiel-Flores V. Mexico. Preliminary Objection, Merits, Reparations, and Costs, Judgment of November 26, 2010 Series C No. 220; Opinion of the Judge Vio Grossi. Gender Identity, and Equality and Non-Discrimination with Regard to Same-Sex Couples: State Obligations in Relation to Change of Name, Gender Identity, and Rights Deriving from a Relationship between Same-Sex Couples (Interpretation and Scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in Relation to Article 1, of the American Convention on Human Rights), (Advisory Opinion OC-24/17 of November 24, 2017. Series A No. 24). In the same vein, Chapter 4 described how the writings of the constitutional scholars used the constitutional analogy to describe and justify the practices of the Court. See, for example: Armin von Bogdandy, “Ius Constitutionale Commune En América Latina: Una Mirada a Un Constitucionalismo Transformador,” Revista Derecho del Estado, no. 34 (2015): 3–50.

142  State-centric vs. constitutional discourses? Table 5.1 Legitimacy and the Constitutional Analogy Concept

Constitutional Approach

State-centric

Constitutional Existence of a ius analogy commune

Ius commune created No challenge to the existence of a ius by judges commune Existence of Dialogue exits and Dialogue exists. dialogue among rules out the relation Doubts on the judges of hierarchy dynamics of that dialogue Control of Engagement with No rejection. conventionality the concept Attempts to balance its application with the notion of margin of appreciation Consent as source of Consent is outdated Silence. Could stick legitimacy to the consent as a sufficient source or support non-adequacy of the consent of States Silence. The Court Court as democratic It acts on behalf can promote space of people. Space values associated of debate among with democracy: people and state transparency, accountability

not developed an argument about the idea of transnational democracy. Indeed, it is non-existent, and the attachment of state-centric scholars to the consent of states as the sole source of the Court’s authority is not clear. However, even if state-centric scholars were to eventually oppose the notion of transnational democracy, it would not necessarily challenge the arguments of the constitutional approach. Even in the hypothetical case that they embrace a notion related to a notion of indirect democratic grounds, the state-centric approach will not necessarily challenge the idea that the Court needs democratic grounds to exert a legitimate authority. Table 5.1 shows the similarities and apparent differences between the constitutional and state-centric approaches on the use of constitutional analogies to portray the identity of the IACtHR.

3.2. Subsidiarity and margin of appreciation A second argument linked to the use of the constitutional analogy is related to the principle of subsidiarity. The case law of the Court and the two legal perspectives on the Court’s legitimacy link their arguments related to the existence of a

State-centric vs. constitutional discourses?  143 ius constitutionale commune and dialogue among judiciaries with the principle of subsidiarity. For the Court and the Constitutional approach, there is no conflict between the existence of a ius commune and the subsidiarity principle. They argue that as long as the Court protects human rights, it does not threaten the principle of subsidiarity. In contrast, the state-centric authors do not rule out tension between the construction of the ius constitutional commune and the principle of subsidiarity. Despite this disagreement, however, it is arguably unclear what the two streams mean by the principle of subsidiarity. The principle of subsidiarity is also involved in discussions related to the rejection or promotion of doctrines of deference, like the margin of appreciation. As mentioned in Chapter 4, the scholars of the constitutional approach reject the margin of appreciation, arguing that Latin American states are not prepared to receive its benefit due to their weak institutions or non-mature democratic governments, the nature of current breaches of human rights and other factors. This rejection apparently clashes with the support that the state-centric approach has for the notion of margin of appreciation. Yet arguably they are not necessarily in real opposition here either, since the state-centric perspective has not developed a proper standard for applying the margin of deference. Indeed, as Chapter 4 showed, the two perspectives both establish a difference between mature and weak democracies as the determining justification for developing a margin of appreciation. The notion of margin of appreciation and its relation with the degree of maturity of local democracies may serve to secure the Court monist’s rule, but also to mask international distrust of the local spaces. Moreover, the notion of subsidiarity and margin of appreciation that fits with the concept of dialogue is ideological, because it may help mask a relation of domination. As will be discussed in Section 4 of this chapter, the fact that the two perspectives refer to a dialogue among local jurisdictions and the IACtHR without providing empirical evidence of it, or developing standards that rule that dialogue, leads to certain problems. Table 5.2 shows the apparent clash between the constitutional and state-centric approaches towards the notion of margin of appreciation.

3.3. Democratic transformation The third element grounding the discourses on the Court’s legitimacy is related to its role as democracy-builder or agent of democratic transformation. In the IACtHR case law, the protection of international human rights is directly related to the idea of democracy and democratisation. Since the beginning of its mandate, the Court has stated that human rights and democracy are two sides of the same coin.33 Indeed, as described in Chapter 3, the case Gelman v. Uruguay

33 For example, the Advisory Opinion 06/86 the Court established the link between the protection of human rights and democracy. The Court stated: “General welfare” and “public order” are terms of the Convention that must be interpreted with reference to the

144  State-centric vs. constitutional discourses? Table 5.2 Legitimacy and Margin of Appreciation Constitutional Approach State-centric

Concept Subsidiarity

Margin of appreciation

Consolidation of democracy

Reluctance, however its Alternative to stabilise application is not ruled the activism of the out Court in order to protect democracy and sovereignty Some democracies All democracies are in are more mature than consolidation. Silence others. The mature on what democracies ones deserve deference are entitled to be subjects of trust

shows how the Court understands the relationship between human rights and democracy—that is, that human rights are a limit to the functioning or dynamics of the principle of democracy (due to the threat majoritarian decisions represent to minorities, for example).34 As explored in Chapter 4, the two legal streams on the Court’s legitimacy likewise embrace the idea that democracy and human rights are naturally linked. The scholars supporting the two discourses also share the idea that the Court has a say about the role of human rights in enhancing democracies. That role encompasses either limiting the dynamics of local democracies, or protecting and giving content to the human rights that constitute conditions for the functioning of a democracy. Thus, the Court and the scholars who drive the two discourses on its legitimacy support the idea that the international judiciary is entitled to protect democracy through human rights protection. In the view of the Court and the two legal streams, democracy and human rights have become part of the ius constitutionale commune in the Latin American region.

treaty, which has its own philosophy under which the American States “require the political organization of these States on the basis of the effective exercise of representative democracy” (Charter of the OAS, Art. 3(d)); and the rights of man, which “are based upon attributes of his human personality,” must be afforded international protection (American Declaration, Second Introductory Clause; American Convention, Preamble, para. 2). In this connection, the Court has already stated: Within the framework of the Convention, it is possible to understand the concept of general welfare as referring to the conditions of social life that allow members of society to reach the highest level of personal development and the optimum achievement of democratic values (…) The Word “Laws” in Article 30 of the American Convention on Human Rights (Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6.). 34  Case Gelman v. Uruguay, Merits and Reparations, Judgment Inter-Am. Ct. H. R. Series C No. 221 ¶ 30-31 (February 24, 2011).

State-centric vs. constitutional discourses?  145 Chapter 6 will dispute the ideas that build the image of the Court as an agent promoting democracy through the protection of human rights. The chapter will call into question the necessity of the IACtHR case law promoting democracy. Necessity here is not with regard to the very existence of the institution, but to the way in which it has been profiled as a pivotal agent of transformation, that is, as an agent of democratisation. Moreover, Chapter 6 will demonstrate how the two legal discourses (statecentric and constitutional) share a similar perspective on the concepts of democracy and human rights that is apolitical or contingent. The contents of democracy and human rights are political choices framed by historical and political dynamics in Latin American. The chapter will challenge how both groups of scholars apparently accept these two concepts without discussing their content or how they became interdependent. As a result, they both adopt a model of low-intensity democracy that prioritises procedural or deliberative rules as core content. Studying the concept of democracy embraced by the two discourses involves looking at the concept of democracy that the Court puts forward, in order to find out how they accompany and reinforce it. By pointing out this relationship, the book also attempts to establish a connection with the notion of democracy promoted by hegemonic powers like the US Government in the Latin America context during the third wave of democratisation in the 1980s. A consequence of questioning the current conception of democracy is debunking the content of concepts like democratisation or democratic transformation and thereby the role of the Court as an agent of democratic transformation.35 One aspect to examine is whether the concept of democracy that the Court and the legal streams embrace is one of low intensity, which is a de-radicalisation of the principle of the will of people. Likewise, it is discussed whether the concept of human rights that the two perspectives embrace de-radicalises them as possible tools for change driven by people. In addition, discussing the argument that the Court is democracy-builder or agent of democratic transformation involves analysing the link between democracy show and the notion of equality that the Court and the two legal discourses on its legitimacy aim for. Chapter 6 will discuss whether that conception of equality is really transformative, or actually strengthens asymmetric relations, that is, relations of domination between vulnerable groups and the economic and political system. Table 5.3 shows the similarities in the arguments of the two perspectives with regard to the notion of democratisation or democratic transformation.

35 See Chapter 6.

146  State-centric vs. constitutional discourses? Table 5.3 Legitimacy and Democratic Transformation Concept Democratic transformation

Constitutional Approach Democracy

Set of procedural rules. Related to the principles of equality and non-discrimination Relation between Democracy and human rights and human rights are democracy co-original Equality in Recognition of root substantive terms causes that trigger structural inequalities

State-centric Set of procedural rules. Related to the principles of equality and non-discrimination Democracy and human rights are co-original Recognition of root causes that trigger structural inequalities

4. Ideology and false contingency as flaws in the use of the constitutional analogy In this section, the notion of ideology helps show how the use of constitutional analogy frames the possible foundations of IACtHR legitimacy and naturalises the notion of constitutionalism as an apolitical synonym of progress (reification). Ideology also helps show how the use of the constitutional analogy empowers legal experts, that is, the professors and judges settling the content of human rights and democracy from above. Using the notion of ideology serves to demonstrate how applying the constitutional analogy disempowers people and portrays them as empty vessels in the need of international institutional aid. This section differentiates itself from the mainstream perspective on international human rights in which scholars traditionally aim to understand the decisions of the Court, perhaps in order to be the voice of the Court beyond its decisions. In contrast, this section attempts to understand the logic of the narrative of progress in which the Court exerts a pivotal role in transformation.36 Firstly, the section introduces a general framework of the use of the constitutional analogy in the international legal field. Then, a critique based on ideology is introduced to confront the similarities present in the two discourses on the Court’s legitimacy with regard to its image as a constitutional judicial body.

36 Pedro León Gutierrez, “Equality and the Inter-American Court of Human Rights: What Is the Ideology?” (Master diss., Lund University, 2010), accessed August 20, 2021, https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1890994&file OId=2011803.

State-centric vs. constitutional discourses?  147

4.1. The use of the constitutional analogy in international law The use of local analogies in international law and international relations is recurrent. Analogies have been used to depict the international field as law in its infancy, moving progressively in the direction of municipal law.37 When referring to the domestic analogy, one pinpoints the notion of affinity, or similarity. An argument that uses the domestic analogy assumes that, implicitly or explicitly, there are some correspondences between domestic and international phenomena. However, the analogy’s use in the international field does not mean the exact transplantation of domestic institutions or concepts to the international arena.38 Here some information on the use of constitutional analogies in international law is introduced in order to demonstrate three ideas. The first is that they are tools to provide flexibility for the informal growth or expansion of the authority of international institutions. The second is that they reproduce a narrative of progress that depicts international law as a constitutional discipline, and the growth in complexity of international institutions as necessary for strengthening its constitutional nature. The third idea is that they work as a meta-framework of liberal constitutional values that inform the actions and work of experts in shaping our local realities, for example informing the concept of modern state, the understanding of democracy, human rights and the role of international institutions. During the early 20th century, authors such as Lauterpacht39 and Verdross40 applied analogies stemming from municipal law to describe the nature of international law. Although Lauterpacht recognised the specific and sui generis nature of international law, he made use of such analogies to describe its features. The more international law approaches the standards of municipal law, the more it approximates to those standards of morals and order which are the

37 Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Longmans, Green and Co., 1927). 38 Suganami, The Domestic Analogy, 142, 198. 39 Suganami provides evidence of the use of local analogies in the international law field since the 19th century. He presents the authors who support or criticise their use. Among the opponents, he includes Hobbes, Spinoza, Pufendorf, Wolff and Vattel. Some international lawyers of the late 19th and the early 20th centuries also stressed the specific character of international law as an argument against such analogies: Manning, Bull, and those who followed, or agreed with, their basic tenets about the uniqueness of international society. On the other hand, scholars supporting the domestic analogy included Saint-Pierre and Kant; Saint-Simon, Ladd, Lorimer, and Bluntschli; Oppenheim and Lauterpacht, among others. Suganami, The Domestic Analogy. 40 In his 1926 book Die Verfassung der Völkerrechtsgemeinschaft (The Constitution of the International Legal Community), Verdross stated that an international community with a constitution enjoyed a pedigree. Bianchi argues that this statement reflects how the idea that a legal order “should be structured around some foundational tenets laying down its main structural characteristics would appear to many lawyers as a truism.” Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford: Oxford University Press, 2016), 47.

148  State-centric vs. constitutional discourses? ultimate foundation of all law … It is better that international law should be regarded as incomplete, and in a state of transition to the finite and attainable ideal of a society of States under the binding rule of law, as generally recognized and practised by civilized communities within their borders, than that, as the result of the well-meant desire to raise its formal authority qua law, it should be treated as the perfect and immutable species of a comprehensively diluted genus proximum.41 The use of such analogies in international law has generally been a contentious issue in the study of international relations and law.42 Their use is obvious in comparisons of treaties with contracts (a source of private law),43 and in definitions of the international order in terms of international society.44 Regardless of accusations that the domestic analogy can be misleading, it has not disappeared. On the contrary, the constitutional analogy has been used at multiple stages of international law’s history to shape the understanding and nature of international law and the structure of the world order. Beyond those traditional debates, the chapter pays special attention to constitutional analogies because they have been used45 by scholars working with international law and by legal professionals working in international institutions.46 As mentioned, the constitutional analogy works to provide flexibility in favour of the informal expansion of the powers of international institutions and as metaframework of values that support the role of experts in shaping local realities. The case of the International Labour Organization (ILO) is a sample of these two ideas. Sinclair explains that since the beginning of its mandate, ILO has dealt with issues concerning the informal expansion of its competences. Sinclair proffers a genealogy of technical assistance within the ILO since its creation during

41 Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Oxford University Press, 2011), 440. In contrast to Lauterpacht and Verdross, during the same period Manning insisted that international law had a different nature. He ruled out the notion of international law as a primitive municipal law, and argued that it is more …… realistic to see international law as law of a different species, than as merely a more primitive form of what is destined some day to have the nature of a universal system of non-primitive municipal law. Suganami, The Domestic Analogy, 18. Quoting Manning, “The Legal Framework in a World of Change,” in The Aberystwyth Papers: International Politics 1919–1969, ed. Brian Porter (London: Oxford University Press, 1972), 319. 42 Bianchi, International Law Theories, 46–47. 43 Lauterpacht, Private Law Sources. 44 Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 2nd ed. (Basingstoke: Macmillan, 1995). 45 Suganami also provides a general account of the use of constitutional analogies in the 19th and 20th centuries. Suganami. Suganami, The Domestic Analogy. 46 The use of domestic analogies is also present in the field of international arbitration. For a general overview, see Valentina Vadi, Analogies in International Investment Law and Arbitration (Cambridge: Cambridge University Press, 2016).

State-centric vs. constitutional discourses?  149 an interwar period, with special attention to the way in which international jurists adapted institutions, concepts and categories of domestic constitutional law to the international arena.47 The constitutional analogy was used to profile ILO as a living organisation. In fact, some interwar jurists defined Part XIII of the Covenant of the League of Nations as the constitution of ILO, using the term due to the flexibility it provides to the conception of law: It permits adaptation and reform through informal means or simply through interpretation.48 Wright wrote in favour of using the constitutional analogy in the following terms: In conclusion, the writer believes the phrase in question is important because it insists upon the applicability of the constitutional history of nations, especially of England, to the problem of international organization. … The constitution of the League of Nations is to be built up of understandings in the twilight zone of law and morality, enjoying the regularity of obedience of one and the flexibility of the other, infinitely tenacious yet capable of indefinite adaptation.49 Wright, then, held that the constitutional analogy provides the flexibility for interpretation in international law. According to him, international law was a science of guiding principles rather than of codified and specific rules; it should develop from precedent to precedent rather than by definition in treaty, especially because some fields related to international organisation were not yet ready for codification.50 Overall, the constitutional analogy has been present throughout the history of ILO to support flexible interpretation and the reform of the ILO and other international organisations.51 Interpreting the use of the constitutional analogy as a support for flexibility has a context and a purpose, of course. Sinclair points out that the expansion of the competences of the ILO and other international organisations can be best understood if one connects it with the making and remaking of modern states under the pattern of the Western model. The growth or use of the constitutional analogy allowed experts working in the ILO to strengthen their executive authority in pursuing a liberal reform of modern states, and to explain or justify formation processes of global governance. For example, interpreting ILO competences with the flexibility provided by the constitutional approach allowed its experts

47 Guy Fiti Sinclair, To Reform the World: International Organizations and the Making of Modern States (Oxford: Oxford University Press, 2017), 31. Sinclair affirms that jurists starting to use the term “charter” to refer to the Covenant of the League of Nations is directly linked with the use of constitutional analogies. 48 Sinclair, To Reform the World, 39–45. 49 Quincy Wright, “The Understanding of International Law,” The American Journal of International Law 14, no. 4 (1920): 565. 50 Wright, “The Understanding,” 578. 51 Sinclair, To Reform the World, 107–110.

150  State-centric vs. constitutional discourses? to engage with projects related to welfare state development, and to shape the understanding of social and economic development as universal aims in European and non-European societies.52 More recently, the constitutional analogy is still in use in the international field to depict the expansion of the competences of international tribunals as a sign of progress and evolution in the international arena. For example, Helfer has stated that although analogies between domestic constitutions and treaty regimes are inexact, the discourse of constitutionalism has relevance for the international discipline. He establishes a link between the proliferation of international institutions, the rise of global problems and the constitutional analogy as a tool to solve these problems. In his explanation, the use of the constitutional analogy is accurate because global problems can no longer be addressed exclusively in the local arena.53 The constitutional analogy has been used to depict the WTO Agreement as a constitution,54 or to state that in international law there are nascent hierarchies among legal norms, as well as between international and local norms, that resemble relations between national constitutions and municipal law.55 Some other

52 Sinclair, 141–147. Sinclair provides other examples of the application of the constitutional analogy during the Second World War period, illustrating how the UN Charter was also framed as a constitutional instrument by the jurists and experts working within the UN system. He shows how the constitutional analogy has provided flexibility in making amendments to the UN Charter, with the International Court of Justice (ICJ) dealing with questions related to finding mechanisms for adapting the Charter to the world’s needs and conditions. Fiti also states that in the case of the UN, the constitutional analogies supported the expansion of executive authority through their connection with the notion of rule of law. The UN, as an institution with constitutional powers, was entitled to intervene in territories on behalf of the values stemming from the notion of rule of law. For example, the rule of law, encompassing values such as solidarity, democracy and justice, worked as a framework justifying the birth of the UN Emergency Force (UNEF), the mandate of which did not fit the explicit terms of the UN Charter. UNEF was the first UN military force, established by the General Assembly to secure an end to the Suez Crisis. It was deployed in Egypt from 1956 to 1967. 53 Laurence R. Helfer, “Constitutional Analogies in the International Legal System (the Emerging Transnational Constitution),” Loyola of Los Angeles Law Review 37, no. 1–2 (2003): 194. 54 Helfer explains that the WTO Agreement has acquired something of the status of higher law when it clashes with inconsistent national legislation or regulations. In his view, this reveals the analogous forms of WTO law to domestic constitutions. Helfer, “Constitutional Analogies,” 201–204. 55 The mainstream scholarship has provided arguments in favour of hierarchies as vital to international law. For example, with regard to Article 103 of the UN Charter, some legal scholars have defined it as a supremacy clause that grants UN primacy over other international treaties. In their view, Article 103, which refers to the prevalence of the obligations under the treaty before other international obligations, constitutes an international public order. See: Dinah Shelton, “Protecting Human Rights in a Globalized World. (Globalization and the Erosion of Sovereignty),” Boston College International and Comparative Law Review 25, no. 2 (2002); Bardo Fassbender, “The United Nations Charter as Constitution of the International Community,” Columbia Journal of Transnational Law 36, no. 3 (1998): 529– 619. Thus, Helfer argues in favour of the necessity of hierarchies, but also admits that in

State-centric vs. constitutional discourses?  151 subjects, such as the legitimacy of international tribunals, also link with the use of constitutional analogies in international law. According to Helfer, the constitutional analogy provides justification to legitimate the authority of international organisations since their legitimacy no longer rests exclusively on the consent of the states. It provides arguments supporting the idea that constitutional or universal values, such as the protection of mankind and the principle of democracy, ground their legitimacy. Helfer refers to the necessity of the constitutional analogy in the following terms: Here treaty obligations are dynamic and evolve through institutional processes outside of any one state’s control, compliance with those obligations may clash with domestic preferences and raise trenchant legitimacy concerns. The formal rules of state consent to treaties do little to ameliorate these concerns, suggesting the need for alternative sources of legitimacy to support adherence to international agreements and institutions. The foregoing example illustrates how the maturation of the international legal system is challenging settled doctrines and prompting scholars to assess the system from fresh perspectives. One such perspective is to view international rules and institutions through the lens of constitutionalism.56 According to Helfer, the practice of the international tribunals and other institutions challenge settled doctrines on the nature of international law that portray it as chaotic or anarchic; he states that they instead penetrate further into domestic affairs and contribute to promoting universal values and development or progress locally. For Helfer, the development of international institutions raises normative and conceptual challenges that are similar to constitutional law. A general problem in Helfer’s argument is related to his adoption of the notion of the progress of international law as a discipline, reflecting a general understanding of the legal discipline as continually evolving for the better. This creates a picture of international organisations as always playing a necessary, positive role in international law’s evolution, since they are the product of that improvement process; thereby, they always act on behalf of common interests—on behalf of progress.57 Moreover, some institutions have self-proclaimed their constitutional status, such as the European Court of Human Rights, when it defined the European Convention of Human Rights as a “constitutional instrument of European public order.”58 With regard to the use of constitutional analogies in the cases just described, it can be argued that certain practices occur and the rise of the field of global

“international law hierarchies are continually evolving and (often) continually contested.” Helfer, “Constitutional Analogies,” 219. 56 Helfer, “Constitutional Analogies,” 197. Emphasis added. 57 Sinclair, To Reform the World, 5. 58 Loizidou v Turkey, Admissibility, App No 15318/89, E.C.H.R. Case No 40/1993/435/514, A/310 (1995).

152  State-centric vs. constitutional discourses? constitutionalism then occurs as a result. The jurists, philosophers and political scientists who are part of this field have made use of constitutional analogies to argue that international law is based on a sort of material constitution. For instance, they portray the existence of universal values that play the role of a constitution, and perform as a meta-framework legitimating the functions of international institutions and informing the structures of national legal orders.59 Overall, the use of constitutional analogies reinforces the idea that international organisations’ powers are designed to be apolitical,60 and to meet the interests or common values of states or international communities, like the protection of human rights, democracy, peace and security. It also reinforces the idea that international law and international institutions are apolitical (which is what functionalist theory does). To summarise, the previous paragraphs have shown how the constitutional analogy has had a continuous presence in several fields of international law and international relations throughout the 20th century. The application of the constitutional analogy reveals that even if it is not recognised as a formal source of law-making, it can be defined as an informal tool that contributes to shaping the authority and nature of international institutions, as well as the understanding of the nature of international law. The mainstream scholarship has overlooked how the everyday practices of jurists in the bosom of international organisations— including their use of analogies—frame the image of international organisations and of international law itself. In relation to this book, Chapter 1 showed how the field of global constitutionalism has influenced the constitutional approach to the legitimacy of international tribunals, especially with regard to the principles that ground their right to rule. Likewise, as mentioned in Chapter 4, there is a relation between the use of constitutional analogies and the existence of ius constitutionale commune that is present in the two discourses on the legitimacy of the IACtHR, as well as

59 This is not an exhaustive list of the uses of constitutional analogies in the field of global constitutionalism. There are also several related arguments that support their use in constitutionalism. One example is the idea that there is an increasing de-constitutionalisation of the legal orders. Anne Peters, “Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures,” Leiden Journal of International Law 19, no. 3 (2006); “The Merits of Global Constitutionalism,” Indiana Journal of Global Legal Studies 16, no. 2 (2009). It is not the object of this book to discuss the different aspects and the field of global constitutionalism in itself. To the contrary, the following sections of this chapter focuses on the Inter-American System and the use of constitutional analogies in that space and context. 60 Jan Klabbers, “The Emergence of Functionalism in International Institutional Law: Colonial Inspirations,” European Journal of International Law 25, no. 3 (2014): 645–675. According to Klabbers, the functionalist approach to international organisations becomes self-evident since it provides the legal structure and facilitates the growth of international organisations. However, as he points out, it is important to look at its origins, and how studying international organisations only from its lenses could be ideological and contribute to naturalise a relation of domination between the international organisations, their legal experts and people from below.

State-centric vs. constitutional discourses?  153 between the field of global constitutionalism and the narrative of the existence of a ius constitutionale commune in Latin America. Moreover, in a similar vein to the field of global constitutionalism,61 the two legal approaches and the IACtHR itself use the constitutional analogy to portray the Court as if it exerts judicial review or as if it were a constitutional tribunal. In contrast to the mainstream legal scholarship, this book engages with the idea that informal law-making tools operate in tandem with the set of legal materials like the constituent instruments of international organisations, treaties and advisory opinions. Hence the importance of looking at how the practice of jurists, legal experts, professors and judges interact with the formal sources of Article 38 of the ICJ Statute. These figures play an active role in the understanding and development of international law and the role of international institutions. With this in mind, the next section discusses the consequences of the use of the constitutional analogy in shaping the legitimacy of the IACtHR.

4.2. Constitutional analogies and the legitimacy of the Court Chapters 3 and 4 showed how the case law of the Court and the two legal discourses on its legitimacy have applied constitutional analogies to describe its powers, such as its authority to provide erga omnes effects to its decisions or to exert a control of conventionality ex ante and ex post. The constitutional analogy has also been present when the Court and the two legal discourses describe the obligations of local judiciaries to apply control of conventionality as if it were a specific type of judicial review, or describe the existence of a ius constitutionale commune and dialogue, among other concepts. The goal of this section is to highlight the use of constitutional analogies as an ideological tool of domination. Recurring to constitutional analogies forms an understanding of a regional constitutionalism (rights and democracy) that is shaped from above (hierarchically) by international judges. The arguments of both discourses share premises which build the image of the Court as a supraconstitutional tribunal. As a consequence of their engagement with the constitutional analogy, the Court becomes a necessary agent of progress in strengthening constitutionalism with regard to the protection of human rights and democracy in the Latin American region.

61 Erika de Wet, “Judicial Review as an Emerging General Principle of Law and Its Implications for the International Court of Justice,” The Netherlands International Law Review 47, no. 2 (2000): 181–210; Geoffrey R. Watson, “Constitutionalism, Judicial Review, and the World Court,” Harvard International Law Journal 34, no. 1 (1993): 1–45. According to Sinclair, the functionalist approach directs the studies of discussions on the nature of international organisations. Sinclair states that these studies have a doctrinal orientation that rests almost exclusively on the standard legal sources of international law and the interpretation made by international judicial bodies in case law or advisory opinions. The functionalist approach to international institutions neglects the everyday practices of legal experts (informal tools) as sources of making law. Sinclair, To Reform the World, 7–8.

154  State-centric vs. constitutional discourses? 4.2.1. IDEOLOGY ON THE ARGUMENTS RELATED TO THE EXISTENCE OF A IUS CONSTITUTIONALE COMMUNE

Ius constitutionale commune is a meta-framework of values and principles for both international and national arenas that rests on three main ideas: (1) that a constitution can exist beyond the space of a nation state; (2) the content of the Inter-American constitution is related to human rights and the principle of democracy62; (3) the judiciary plays a necessary role in the construction and evolution of the ius constitutionale commune. These three elements that ground the notion of the existence of a ius constitutionale commune serve to build the idea that the notion itself is transformative. For the constitutional approach, the InterAmerican System is passing through a process of transformation because of the rise of Latin American constitutionalism. In its mindset, transformation refers to development and consolidation of the Latin American states as driven by judges in application of the ius constitutionale commune. With regard to the notion of ius of constitutionale commune as constitution created by judges, the scholars of the constitutional discourse have built the idea that there is a ius constitutionale commune in the Latin American region.63 Chapter 4 explained that in their view, the set of rules or standards that ground this ius constitutionale commune are the ACHR, the other inter-American treaties and the interpretation built by the Court through its case law. This latter has been defined as a bloc of conventionality in similar terms to the idea of a bloc of constitutionality, in reference to the informal or material contents of a constitution.64 The treaties that the constitutional discourse have defined as part of a ius constitutionale commune reflect a similar understanding to that of the Court of the set of norms and principles that are part of a corpus juris. Chapter 3 referred to the Rio Negro Massacres case law as a decision that described the instruments that are part of an Inter-American corpus juris. They included the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women

62 The notion of ius constitutionale commune is not restricted to the concepts of international human rights and democracy (for example, it could include justice), but they are its most salient aspects. Likewise, as Chapter 6 demonstrates, the narrative of the evolution of the Inter-American System of Human Rights that the two discourses engage with is grounded on the transitology theory of democracy (and democratisation) and human rights. However, the understanding of democracy and democratisation and human rights promoted by a transitology approach is not out of contestation. Also, Chapter 6 shows the ideological flaws undergirding the two discourses on the legitimacy of the Court. 63 Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan, and Ximena Soley, eds., Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford: Oxford University Press, 2017). 64 Eduardo Ferrer Mac-Gregor, Del Control De Constitucionalidad Al Control De Convencionalidad: ¿Un Nuevo Modelo Para América Latina? (Universitat de Girona. Cátedra de Cultura Jurídica, 2011).

State-centric vs. constitutional discourses?  155 (“Convention of Belém do Pará”) and the Convention on the Rights of the Child.65 This understanding of the corpus juris is not new, and it has been driven by certain IACtHR judges. One of the representatives of the constitutional discourse, Judge Sergio García Ramirez (Mexico), is a proponent of the notion of a body of rules that have been interpreted as an Inter-American constitution or ius constitutionale commune. He has addressed the idea of a corpus juris or ius commune in his concurring opinions66 and academic articles,67 which have been published by the Max Planck Institute and the Instituto de Investigaciones Jurídicas of the Universidad Autónoma de Mexico. His concurring opinion in the case Dismissed Congressional Employees v. Peru shows how he has portrayed the existence of a ius commune: In the instant case, when referring to the control of “conventionality,” the Inter-American Court has considered the applicability and application of the American Convention on Human Rights, Pact of San José. However, the same function is deployed, for the same reasons, with regard to other instruments of a similar nature, that comprise the corpus juris arising from the human rights conventions to which the State is a party: the Protocol of San Salvador, the Protocol to Abolish the Death Penalty, the Convention to Prevent and Punish Torture, the Convention of Belém do Pará on the Eradication of Violence against Women, the Convention on Forced Disappearance of Persons, etcetera. The task is to ensure consistency between actions at the national level and the international commitments made by the State that generate specific obligations for the latter and recognize certain rights for the individual.68 The notion of a bloc of conventionality that encompasses the interpretation of the Court is based on case law that states that Court decisions have erga omnes effects. As Chapter 3 described, in the case Almonacid Arellano v. Chile, the Court stated that its decisions should be taken into account by the local judiciary,

65  Río Negro Massacres v. Guatemala. Preliminary Objection, Merits, Reparations, and Costs. Judgment, Inter-Am. Ct. H. R. (Series C) No. 250 (September 4, 2012), https://www. corteidh.or.cr/docs/casos/articulos/seriec250ing.pdf. 66 Reasoned Concurring Opinion of Judge Sergio García Ramírez to Case of Myrna Mack Chang v. Guatemala. Merits, Reparations and Costs, Judgment of November 25, 2003. Series C No. 101. 67 Sergio García Ramírez, “The Inter-American Human Rights Navigation: Towards a Ius Commune,” in Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune, eds. Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan, and Ximena Soley (Oxford: Oxford University Press, 2017), 301–320. 68 Opinion of Judge Sergio García Ramírez. Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 24, 2006. Series C No. 158.

156  State-centric vs. constitutional discourses? since it is the ultimate interpreter of the ACHR.69 Judge Eduardo Ferrer MacGregor (Mexico) has also applied the notion of a bloc of conventionalióty in his separate opinions and in academic articles sponsored by the Max Planck Institute and the Instituto de Investigaciones Jurídicas. In his separate opinion to the case of Cabrera García and Montiel Flores v. México, he stated that the advisory opinions and case law of the Court were sources for the interpretation of the ACHR: The “interpretations” of this conventional norm include not only the interpretations made in the sentences pronounced in the “contentious cases”, but also the interpretations made in the other resolutions issued. Thus, the interpretations made when deciding on “provisional measures” are included; on “supervision of compliance with judgments” or, even, on the request for “interpretation of the sentence” in terms of article 67 of the Pact of San José. It must also understand the interpretations derived from the “advisory opinions” referred to in Article 64 of the aforementioned Covenant, precisely because it has as its purpose “the interpretation of this Convention or of other treaties concerning the protection of rights humans in the American States.70 The work of Ferrer Mac-Gregor has found support from other scholars who share the constitutional mindset, such as Góngora-Mera71 and Laurence Burgorge Larsen,72 who are also part of the Max Planck Institute’s ICCAL project. Overall, the understanding of the role of the Court as a supraconstitutional tribunal correlates to Bogdandy’s project supporting the authority of international law and the legitimacy of international adjudication. Beyond the correspondence between the arguments of the constitutional discourse and the case law of the Court, there are several aspects of the idea of ius constitutionale commune to remark, such as the premises it is based on. The first is that the notion of its existence is grounded on constitutional approach scholars’ shared view of the concept of constitutions and the rise of neo-constitutionalism

69 Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 154 (September 26, 2006), https:// www.corteidh.or.cr/docs/casos/articulos/seriec154ing.pdf. 70 Concurring Opinion of Ad-Hoc Judge Eduardo Ferrer Mac-Gregor Regarding the Case of Cabrera García and Montiel-Flores v. Mexico. Preliminary Objections, Merits, Reparations and Costs. 71 Manuel Góngora Mera, “La Difusión Del Bloque De Constitucionalidad En La Jurisprudencia Latinoamericana Y Su Potencial En La Construcción Del Ius Constitutionale Commune Latinoamericano,” in Ius Constitutionale Commune En Derechos Humanos En Latinoamérica, eds. Armin von Bogdandy, Mariela Morales Antoniazzi, and Eduardo Ferrer MacGregor (México: Porrúa, 2013). 72 Laurence Burgorgue-Larsen, “La Corte Interamericana de Derechos Humanos Como Tribunal Constitutional,” in Ius Constitutionale Commune En América Latina: Rasgos, Potencialidades Y Desafíos, eds. Héctor Felipe Fix-Fierro, Armin von Bogdandy, and Mariela Morales Antoniazzi (México: Instituto de Investigaciones Jurídicas, Universidad Nacional Autónoma de México UNAM, 2016).

State-centric vs. constitutional discourses?  157 in Latin America.73 As Chapter 4 described, Latin American neo-constitutionalism pays special attention to the dogmatic part of constitutions, that is, the recog­ nition of fundamental rights and the role of the judiciary in protecting human rights through judicial review.74 By the same token, the notion of ius constitutionale commune shares certain features with the field of global constitutionalism, as a result of the influence of scholars who are part of the Max Planck Institute.75 The most obvious common feature is the fact that global constitutionalists and the Latin American scholars use the constitutional analogy, but also the fact that they embrace a notion of idealist constitutionalism that defines itself as a normative theory maximising the protection of rights, which is not necessarily connected to the notion of national constitutions.76 With the same strand of global constitutionalism and the Max Planck Institute’s project on the legitimacy of international adjudication, these scholars also share a focus on looking for where the power is located in the

73 Alexandra Huneeus, “Lawyers and the Inter-American Court’s Varied Authority,” Law and Contemporary Problems, no. 79 (2016): 204–205. 74 Huneeus, “Lawyers,” 204–205. 75 It is not a coincidence that the global constitutional field includes several German scholars and institutions. As Koskenniemi states, global constitutionalism could be defined as a German discipline. Koskenniemi provides a general account of the German heritage of international law (this includes Swiss and Austrian German-speakers), pointing out that German philosophers, lawyers and other actors have played a central role developing its concepts and categories. He traces the influence of German academia on contemporary international law, including the notion of coordination, driven by the Triepel and Kauffman, and cosmopolitan theory, whose roots are in Kelsen’s Pure Theory of Law. For Kelsen, national law is dependent on international law; Verdross used that statement to portray a constitutional approach to international law based on faith and values, overlooking the political nature of embracing international law as superior. Martti Koskenniemi, “Between Coordination and Constitution: International Law as a Discipline,” Redescriptions: Yearbook of Political Thought, Conceptual History and Feminist Theory 15, no. 1 (2011): 45–70. Koskenniemi highlights the importance of Heidelberg’s Max Planck Institute for Public and Comparative Law. In his view, the Institute represents the German academy of international law from the interwar period to the present. Salient features of the current atmosphere of this academy can be summarised in terms of universalism, the engagement with a public law approach and an attachment to human rights. Koskenniemi also remarks on the boost that Max Planck Institute scholars have given to the notion of legitimacy and transnational democracy as a source of legitimacy. Also, he indicates that the study of the fragmentation of international law has been led by German scholars like Teubner, who uses the work of German scholar Luhmmann to discuss the aforementioned topic. 76 Maduro establishes a distinction between constitutions and constitutionalism. In his view, the notion of constitutionalism (a theory of social decision making) is broader than the notion of a constitution (a contract supported by a political community). Miguel Poiares Maduro, “From Constitutions to Constitutionalism: A Constitutional Approach for Global Governance,” in Global Governance and the Quest for Justice: Vol. 1 International and Regional Organisations, ed. Douglas Lewis (Oxford: Hart Publishing, 2006), 227.

158  State-centric vs. constitutional discourses? international arena and seeking arguments that legitimate the power of international institutions, such as the IACtHR.77 The scholars of the state-centric approach have not really contested the existence of a ius constitutionale commune and its definition as a material constitution. Moreover, when they argue in favour of a dialogue between judges or of a margin of appreciation, they embrace the notion of its existence. At the core of the idea of dialogue is the chance of finding common and different aspects and understandings of the concept of rights that illuminate the Latin American region. Such commonalities can be interpreted as being part of the content of ius constitutionale commune, and suggest to me that the state-centric approach engages with the existence of a ius constitutionale commune in the region. A consequence of embracing the notion of dialogue is accepting the idea that the international judiciary has a valid say on common constitutional standards in the Latin American region. For the constitutional approach this is not a problem, since it engages or supports the idea that the Court is the ultimate interpreter of the ius commune. Likewise, while the scholars of the state-centric approach argue that a judicial body like the Court may threaten the democratic principle when it orders or establishes uniform concepts or standards of human rights protection, they contest neither the fact that the Court is a lawmaker nor that it is depicted as a supraconstitutional tribunal. The state-centric approach engages with the constitutional analogy by making use of the analogy of the judicial review and its democratic flaws to build arguments against the Court. As for the contents of the ius constitutionale commune, one first aspect are the human rights recognised in the ACHR and other Inter-American instruments. The state-centric approach seems to embrace this understanding, since it has not contested it. Since the two discourses accept the existence of a ius constitutionale commune, their understanding of the concept is similar. Indeed, the discourses rest on a similar grasp of the contents of the ius constitutionale commune. Concretely, in the account of the constitutional and state-centric scholars, the notion of human rights fits with that of democracy: They become two sides of the same coin. For the constitutional and state-centric scholars, who as a general rule embrace a model of liberal constitutionalism, human rights and democracy are at the core of the functioning of local political communities that refer to the reception of international law, as well as pluralism. This understanding of human rights and democracy is another aspect that articulates together with the notion of democracy that the Court itself and other OAS organs have embraced.78

77 Armin von Bogdandy and Ingo Venzke, In Whose Name? (Oxford: Oxford University Press, 2014). As mentioned in Chapter 4, the proposal of Bogdandy and Venzke rests on the notion of a transnational democratic principle grounding the authority of international adjudication. Likewise, the scholars of global constitutionalism, like Maduro, argue that in a context in which international institutions hold power and authority over states (global governance), the use of constitutional categories are necessary to add constitutional value to legitimise the exercise of that power. Maduro, “From Constitutions, 251.” 78 See Chapter 6.

State-centric vs. constitutional discourses?  159 Moreover, as mentioned, a ius constitutionale commune not only informs the contents and values at the local level, but also the contents and nature of the international arena. For example, the fact that the notion of ius constitutionale commune encompasses an understanding of democracy and human rights as interdependent concepts at the local level prompts enquiries regarding whether and how that relationship reproduces itself on the international level. In the mindset of the constitutional approach, a transnational dimension of it legitimates the authority of the Court. The constitutional discourse, as will be discussed in Section 4.2.3, has an implicit attachment to the notion of transnational democracy as the source of the Court’s legitimacy. In parallel, Section 4.2.3 aims to highlight the fact that the state-centric approach also accepts the link between democracy and human rights implies that it too has a view regarding the existence of a transnational dimension of the concepts of democracy and human rights. With regard to the premises that ground the notion of ius constitutionale commune, they have several flaws. In the first place, the idea of the existence of a ius commune in Latin America reflects the premise of progress that is at the foundation of the constitutional and state-centric scholarship. Indeed, the baseline of the argument for the existence of a ius constitutionale commune is the idea that the society of states advances towards a regional-universal community sharing common values and goals. They both share the idea that the notion of constitutionalism or ius constitutionale commune represents transformation in itself. While transformation will be discussed in Chapter 6 with special attention to the role of the Court as a democracy-builder, the idea of transformation that stems from the existence of a ius constitutionale commune is self-evident and its tenets are not discussed at all. Indeed, as Chapter 6 shows, this idea of transformation has been constructed on notions of procedural democracy and de-radicalised human rights that seem ahistorical and contingent. The premise of ius commune is that the whole region shares a unidirectional understanding of the notion of rights, democracy and the rule of law.79 If one takes into account that Latin American countries passed through a democratisation process after dictatorships lost power and US political support, the idea that the region has a similar understanding of those concepts finds merits. The notion of change in relation to the end of the dictatorial governments is present in the state-centric and the constitutional discourses. The constitutional discourse actually drives the idea that a process of constitutional reforms followed the end of the dictatorships.80 The state-centric discourse also seems to embrace the idea that the region went through a period of constitutional reforms rooted in the recognition of human rights and democracy as core norms.81 To sum up,

79 Fabia Veçoso and Carlos Villagrán Sandoval, “A Human Rights’ Tale of Competing Narratives,” Direito e Práxis 8, no. 2 (2017): 1608. 80 See Chapter 6. 81 There is a parallel between the narrative and rise of the notion of ius constitiutionale commune and the rise of global constitutionalism. While the two discourses on the legitimacy

160  State-centric vs. constitutional discourses? the two discourses define current constitutionalism in opposition to the region’s recent dictatorial governments. The two discourses portray constitutionalism, and more specifically rights and democracy, as if they were apolitical and not products of a historical and political context dominated by hegemonic powers. Following Ritchie, one could state that legal scholars supporting both discourses embrace a constitutional theory that “values abstract form over the content of social situatedness.”82 They support a curtailed analysis of the circumstances in Latin American and also support a particular version of constitutionalism based on a liberal tradition guiding notions of what is good in the Latin American context.83 In the conception of constitutionalism that the two discourses embrace, there is no argument that questions or points out the identity of the law-giver or constituting power. It means that, if one wants to discard the ideological foundations of this new constitutionalism, it is at least necessary to confront the notion of constituent power with the argument that technicity and hegemonic powers support the technicians or experts who truly occupy the role of lawmakers.84 This “objective” notion of constitutionalism at the local level prompts the two discourses to push the idea that their model of local constitutionalism repeats itself at the international level. Both discourses remain within the liberal paradigm as if it were the only available system for the Latin American context. As Schwöbel states, this could lead to “significant limitations

of the Court support the notion of a ius constitutionale commune born with the end of dictatorships, theories of global constitutionalism establish a link between its rise and the end of the Cold War. The rise of global constitutionalism usually refers to the Cold War’s end as the start point for a moralisation of international law. As Chapter 1 explained, that period was the context for pioneering a difference between liberal and illiberal states based on a framework of liberal constitutionalism whose values are reproduced at the international level. Olena Shivo, “Global Constitutionalism and the Idea of Progress,” Helsinki Law Review 12, no. 1 (2018): 10–34. Those values include the protection of human rights and universal justice. Oliver Diggelmann and Tilmann Altwicker, “Is There Something Like a Constitution of International Law? A Critical Analysis of the Debate on World Constitutionalism,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 68 (2008): 623–650. Urueña points out that the constitutional discourse is “a perfect fit to the ‘constitutional mindset’ of global governance, where power is exercised in a top-down fashion, on the basis of legal norms adopted in the name of humanity.” René Urueña, “Global Governance through Comparative International Law? Inter-American Constitutionalism and the Changing Role of Domestic Courts in the Construction of the International Law,” Jean Monnet Working Paper 21/13 (2013): 9, accessed October 10, 2021, https://jeanmonnetprogram​.org​/wp​-content​/uploads​/2014​/ 12​/Uruena​.pdf. 82 David Ritchie, “Organic Constitutionalism: Rousseau, Hegel and the Constitution of Society,” Journal of Law in Society 6, no. 1 (2005): 38–40. 83 Ritchie calls into question the formality of positivist liberal constitutionalism in the following terms: There has been a conceptual collapse, then, between the formal positivist mechanisms of particular constitutions and the historical forces and influences of a more fundamental organic conception of constitutionalism. Ritchie, “Organic Constitutionalism,” 68. 84 Sara Kendall, “‘Constitutional Technicity’: Displacing Politics through Expert Knowledge,” Law, Culture and the Humanities 11, no. 3 (2015): 363–377.

State-centric vs. constitutional discourses?  161 including the creation of an environment that favours hegemonic ambitions at the possible expense of diversity.”85 The ideological use of the language related to the existence of a ius constitutionale commune becomes evident when the current model of constitutionalism becomes natural and entirely contingent for the region. In addition, the fact that the two discourses support the existence of a ius commune, either directly or indirectly (through the notion of dialogue among judges), implies that they also accept the existence of a parallel constitution that is only partially controlled by the states that created the international structures now converted into lawmakers.86 The use of constitutional language, however, is not just useful to describe or show the advancement of the international legal order in the direction of a constitutional order and its interaction with the constitutional arena. And the use of the constitutional analogy is not only a method of flexibility that legal and political experts use to interpret or widen international institutions’ competences. Indeed, the use of constitutional language and the notion of dialogue aim to construct a reality in which the judiciary is the institution that builds the contents of rights and democracy that illuminate the Latin American region. More concretely, the use of the constitutional analogy in the Inter-American System serves also to create a specific understanding of the world.87 The ideological flaw of the notion of ius constitutionale commune is related to how it hides the fact that the use of constitutional analogies in the international legal order does not ultimately correspond with a romantic perspective but instead empowers legal experts, that is, scholars and judges, as the ones who hold the knowledge on the contents of constitutionalism.88 If the international field is a constructed reality that responds to political and historical dynamics, one has to take into account that the intersubjective knowledge of certain agents has a constitutive effect on the social reality that surrounds us.

85 Christine EJ Schwöbel, Global Constitutionalism in International Legal Perspective, (Leiden: Martinus Nijhoff Publishers, 2011), 1. 86 Altwicker and Diggelmann, “Is There Something,” 627–628. 87 As happened with the use of the constitutional analogy in the ILO to support the expansion of its competences in order to shape the world. Sinclair, To Reform the World. 88 René Urueña. No Citizens Here: Global Subjects and Participation in International Law, (Leiden: Martinus Nijhoff Publishers, 2012). https://doi.org/10.1163/9789004220706. Martti Koskenniemi, “Between Commitment and Cynicism: Outline for a Theory of International Law as Practice.” In International Law as a Profession, edited by Jean d’Aspremont, Tarcisio Gazzini, André Nollkaemper, and Wouter Werner, 38–66. Cambridge: Cambridge University Press, 2017); David Kennedy, “Challenging Expert Rule: The Politics of Global Governance,” Sydney Law Review 27, no. 1 (2005); David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton: Princeton University Press, 2018).

162  State-centric vs. constitutional discourses? Human agents and international structures are interrelated, then.89 In that sense, another critique of the two discourses and the use of the constitutional analogy point out the lack of objectivity of the international norms or the interpretation given to them by the judiciary. Following Butterfield, the flaw of the two discourses becomes clear in the way in which they address the discussion on the legitimacy of the Court. Even when it is accepted that legal scholars introduce personal bias, bias cannot be recognised in the discourses on the legitimacy of the Court, as readers are trapped in treacherous circular arguments.90 The two streams justify their arguments by taking events out of context (abstracting them), and then pretend that the facts speak for themselves.91 4.2.2. CONTROL OF CONVENTIONALITY, DIALOGUE AND THE PROFILE OF THE COURT AS A SUPRACONSTITUTIONAL TRIBUNAL: LEGAL EXPERTISE RULING THE REGION

This section demonstrates how the constitutional and state-centric discourses rest on arguments that support a hierarchical relationship between the Court and the local judiciaries and authorities. The constitutional and state-centric perspectives use the notion of dialogue as a concept that would help to rule out the idea that the Court acts as a supraconstitutional tribunal, but the notion of judicial dialogue is self-referential and does not challenge the hierarchical profile given to the Court. The image of the Court as a supraconstitutional tribunal becomes evident through an analysis of control of conventionality. Chapter 3 described the idea, as created by the IACtHR in 2006, and discussed its development in Court case law since then. As shown in Chapter 3, the Court used its implied powers to make a broader interpretation of the obligations of states and to make the ACHR an instrument with self-executing effects.92 Control of conventionality resembles the concept of judicial review, which constitutional tribunals carry out to secure the supremacy of constitutions over lower-ranked norms. It is seen as having direct and general effects beyond the litigating parties,93 and as a general obligation for all judges.94 Moreover, the supraconstitutional nature of the Court and its hierarchical relationship with the local judiciaries is also tangible because, in the

89 Altwicker and Diggelmann, “Is There Something,” 643. Agents and international structures can be also mutually constitutive. 90 Herbert Butterfield, The Whig Interpretation of History (London: Bell, 1931), 105. 91 Butterfield, The Whig Interpretation, 105. 92 Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations and Costs. 93 Case of the Dismissed Congressional Employees (Aguado-Alfaro et al.) v. Peru. Request for Interpretation of the Judgment on Preliminary Objection, Merits, Reparations and Costs, Judgment of November 30, 2007. Series C No. 174. 94 Case of the Dismissed Congressional Employees (Aguado-Alfaro et al.) v. Peru.

State-centric vs. constitutional discourses?  163 application of control of conventionality, the judges are bound by the interpretations of the Court. In this respect, the arguments of the constitutional discourse with regard to the control of conventionality become a mechanism of self-interpretation. Chapter 4 described how scholars supporting this discourse have published multiple articles related to the nature, impact and reception of control of conventionality in national legal orders and guidelines for its application,95 while others use constitutional categories to portray it in similar terms to control of constitutionality96 and compare the IACtHR with the European Court of Justice.97 The representatives of the state-centric approach have not contested control of conventionality as a Court practice and a duty that local judiciaries should perform in decision-making processes. As mentioned, Gargarella has stated that the practices of the Court impact the democratic principle at the local level,98 but this argument does not question the validity of control of conventionality. Indeed, Gargarella validates the practice when he reproduces the debate on the countermajoritarian role of the judicial review in the Latin American context. Although the constitutional analogy is a recourse that legal scholars and experts have used to provide flexibility for the interpretation of international institutions’ competences, portraying the labour of the Court as a supraconstitutional tribunal impacts the understanding of the Court’s role and the role of legal experts (professors and judges) in protecting human rights and democracy.99 One first aspect of control of conventionality to comment on is that the arguments provided by the constitutional discourse with regard to its validity are based on the fact that the Court has defined itself as the ultimate interpreter

95 Eduardo Ferrer Mac-Gregor, “Interpretación Conforme Y Control Difuso De Convencionalidad: El Nuevo Paradigma Para El Juez Mexicano,” Estudios constitucionales—Revista Semestral del Centro de Estudios Constitucionales de Chile 9, no. 2 (2011): 531–622; Juana María Ibañez Rivas, Manual Auto-Formativo Para La Aplicación Del Control De Convencionalidad Dirigido a Operadores De Justicia (San José: Instituto Interamericano de Derechos Humanos, 2015). 96 Laurence Burgorgue-Larsen, “La Corte Interamericana De Los Derechos Humanos Como Tribunal Constitucional,” Working Papers on European Law and Regional Integration, no 22 (2014), accessed September 10, 2021, https://www.ucm.es/ideir/publicaciones. 97 Ariel Dulitzky, “An Inter-American Constitutional Court? The Invention of the Conventionality Control by the Inter-American Court of Human Rights,” Texas International Law Journal 50, no. 1 (2014): 45–93. 98 Roberto Gargarella, No Place for Popular Sovereignty: Democracy, Rights, and Punishment in Gelman v. Uruguay, SELA (Seminario Latinoamericano De Teoría Constitucional Y Política), 2013, accessed October 8, 2021, https://digitalcommons​.law​.yale​.edu​/cgi​/viewcontent​.cgi​?article​=1123​&context​=yls​_sela. 99 D’Aspremont argues that one strategy of legal experts in the production of knowledge and social validation is related to the use or creation of neologisms. The term “control of conventionality” may serve as a passport to fame, either of individuals or of a community of legal experts or tribunal. Jean d’Aspremont, Epistemic Forces in International Law: Foundational Doctrines and Techniques of International Legal Argumentation (Cheltenham: Edward Elgar Publishing Limited, 2015), 234–236.

164  State-centric vs. constitutional discourses? of the norms that are part of the ius constitutionale commune. This argument is self-validating and tautological, since it rests on the idea that the Court and the judges have legitimate authority to create the figure of control of conventionality without necessarily discussing the foundations of the Court’s right to rule. In response to this critique of self-validation, it could be argued that the notion of control of conventionality is harmless and has been created to promote or build a culture of respect and compliance of the standards of the InterAmerican System of Human Rights.100 Even in the hypothetical case that the notion of conventionality has been raised to secure the reception of the standards of the Inter-American System of Human Rights, this is shaped with a top-down perspective that positions the judges as determining the understanding of rights in the region. This interpretation obscures an alternative political imagination in which people can rethink the content of human rights to fit their demands.101 For state-centric scholars such as Contesse and Contreras, the solution to reversing the top-down understanding of the authority of the Court can be found in either focusing on the local reception of control of conventionality or in establishing criteria that protect the sovereignty and democracy of states (such as margin of appreciation).102 Likewise, some other state-centric scholars state that the authority of the Court is best measured by analysing the practices of the local judiciary and local authorities, and avoid debating the nature or legitimacy of the Court itself.103 According to this “bottom-up” perspective, the Court’s authority varies from country to country, and depends on how conservative or activist the judiciary in each country is.104 In general, this perspective does not truly challenge the consequences of the top-down approach because both focus on criteria of dialogue or distribution of authority between those holding the power to interpret law and those building the understanding of law. The statecentric approach does not contest the fact that the very creation of the concept of control conventionality is a manifestation of the use of constitutionalist language to shape a world built by the judiciary. Moreover, in the hypothetical case that the authors of the state-centric discourse support the notion of control of conventionality because they embrace

100 Ibañez Rivas, Manual Auto-Formativo. 101 Dimitri Van Den Meerssche, “International Organisations and the Performativity of Measuring States,” International Organizations Law Review 15, no. 1 (2018): 168–201. 102 Jorge Contesse, “Contestation and Deference in the Inter-American Human Rights System (Subsidiarity in Global Governance),” Law and Contemporary Problems 79, no. 2 (2016): 123–145; Pablo Contreras, “National Discretion and International Deference in the Restriction of Human Rights: A Comparison between the Jurisprudence of the European and the Inter-American Court of Human Rights,” Northwestern University Journal of International Human Rights 11, no. 1 (2012): 28–82. 103 Alexandra Huneeus, “The Institutional Limits of the Inter-American Constitutionalism,” in Comparative Constitutional Law in Latin America, eds. Dixon Rosalind and Ginsburg Tom (Cheltenham: Edward Elgar Publishing, 2017). 104 Huneeus, “Lawyers”; Huneeus, “The Institutional Limits of the Inter-American Constitutionalism.”

State-centric vs. constitutional discourses?  165 theories on pluralism that attribute to the judiciary the authority of lawmakers, here they too adopt a self-referential105 and self-validatory approach. Selfreferentiality in the arguments of the state-centric scholars is notable when they support or do not reject the notion of dialogue among the judiciary.106 Accepting the notion of dialogue involves recognising that local and international judicial authorities have the capacity to validate their own institutional acts. The judiciary formulates the law and declares the validity of this institutional act.107 Again, the fact that both state-centric and constitutional approach scholars argue in favour of a notion of dialogue makes clear that the two discourses are not in real confrontation. As discussed in Chapter 4, the constitutional discourse also applies the notion of dialogue to accommodate or evade the argument that control of conventionality renders the Court a supraconstitutional tribunal. An implicit premise that supports the observation that both discourses embrace the notion of dialogue is that they both reject the monism–dualism dichotomy that explains the reception of international law at the national level, since it cannot address properly the current interaction between the national and international order. Using the notion of dialogue begs the question of who or what is the ultimate authority holding the last word in that dialogue, that is, the last word on standards of rights protection in the Latin American region. In the end, the two discourses embrace a monism even as they deny it. The scholars that support a constitutional discourse do not really engage with a horizontal understanding of relations between the Court and the national legal orders, stating that there has been no opportunity to develop standards of deference that define who holds the last word on the content of rights.108 Indeed, the lack of theorisation on the criteria for allocating authority in the relationship reveals that the constitutional discourse supports the distrust lying in Court decisions with regard to the local authorities and the language of uniformity and universality it employs in its decisions. State-centric scholars’ support for the argument of a margin of appreciation does not mean this is a different option to the monism that the constitutional legal scholars promote. In general, the two discourses embrace a notion of monism masked by dialogue and pluralism in the Inter-American System of Human

105 Dimitri Van Den Meerssche, “European Perspectives on Constitutional Pluralism(s): An Ontological Roadmap,” Transnational Legal Theory 9, no. 1 (2018): 10. 106 Jorge Contesse, “The Final Word? Constitutional Dialogue and the Inter-American Court of Human Rights: A Rejoinder to Paolo Carozza and Pablo González Domínguez,” International Journal of Constitutional Law 15, no. 2 (2017): 443–446. 107 Van Den Meerssche, “European Perspectives,” 6. 108 Paola Andrea Acosta Alvarado, “Los Casos Colombianos Ante El Sistema Interamericano Y El Uso Del Margen De Apreciación: ¿Ausencia Justificada?,” in El Margen De Apreciación En El Sistema Interamericano De Derechos Humanos: Proyecciones Regionales Y Nacionales, eds. Paola Andrea Acosta Alvarado and Manuel Nuñez Poblete (México, DF: Instituto de Investigaciones Jurídicas, 2012).

166  State-centric vs. constitutional discourses? Rights. A problem plaguing arguments for a theory of deference is related to the criterion of advanced or mature democracies or the quality of democratic proceedings as grounding deference; it is not said who is the one qualifying and measuring state behaviour.109 The state-centric scholars implicitly accept that measuring the quality of democracies is in the hands of the judiciary.110 This understanding of the role of the judiciary again implies that judges (legal experts) shape the world, shape what we know about protecting human rights and democracy.111 Furthermore, when the state-centric scholars adopt the arguments related to more advanced or weak democracies,112 their arguments resemble distrust of local political communities. Again, we see no real conflict between the two discourses discussed in this book. The fact that the notion of margin of deference is a judicial practice implies that the state-centric approach adopts a descriptive claim about the practice of dialogue and the rules that govern that judicial dialogue, but also a normative frame that tells us how to imagine the future of the Inter-American System of Human Rights. That is, a future in which the protection of human rights and democracy has been tamed for the sake of progress and evolution in order to reach an ideal model of liberal constitutionalism that has de-radicalised the notions of rights and democracy. Since the state-centric approach accepts the existence of a ius constitutionale commune, the possible rules guiding dialogue between local judiciaries and the IACtHR have as meta-framework the understanding of rights that the Court has adopted. Since the contents of rights are designed under the terms of uniformity, with a hierarchical approach, the framework of tools to solve conflict among judiciaries and determine who has the last word are also defined through that hierarchical frame. In consequence, every practice that could be defined as dialogue takes place under the umbrella of the ius commune that comprises elements of self-validity and moral hierarchy.113 What’s more, the notion of dialogue that the constitutional and state-centric discourse adopt is actually more a monologue, with local tribunals acting as receptors rather than as equal agents of making law or creating the jus constitutionale commune. Urueña states that in practice, some local tribunals apply the decisions of the Court as an authoritative statement of a hierarchically superior

109 Van Den Meerssche, “International Organizations.” 110 Contesse, “Contestation and Deference.” 111 See Chapter 6. 112 Contesse, “Contestation and Deference.” 113 The work of Mattias Kumm has been criticised because its arguments resemble the theory of monism, rather than a third way for understanding relations between national and international law. Van Den Meerssche, “European Perspectives.” See the article of Kumm: Kumm, Mattias. “The Moral Point of Constitutional Pluralism 1: Defining the Domain of Legitimate Institutional Civil Disobedience and Conscientious Objection.” In Philosophical Foundations of European Union Law, Dickson, Julie, and Pavlos Eleftheriadis, eds. Oxford: Oxford University Press, 2013, doi: 10.10​93/ac​prof:​oso/9​78019​95887​70.00​3.000​9.

State-centric vs. constitutional discourses?  167 norm, that is, “inter-American law is there to be applied, not controverted.”114 Constitutional scholars mention dialogue related to the protection of indigenous rights between the Constitutional Court of Colombia and the IACtHR,115 but there is no proof of this dialogue or interaction from below. In other cases, the dialogue that scholars describe mainly relates to the use of IACtHR standards by constitutional and supreme courts in Argentina, Uruguay, Mexico, Peru and other states.116 Thus, it has not been proved that there is space for differing approaches to rights protection in the Latin American region. Indeed, it seems that the veil of uniformity given by the Court implies that domestic courts should stick to the Court’s interpretation and become mere enforcers of the will of the international community.117 Overall, the language of constitutionalism thus has a constitutive effect on the way in which we understand the role of the local and international judiciary, and how we understand the notion of the principle of subsidiarity, among other aspects. Indeed, the fact that control of conventionality rests on the notion of erga omnes effects of Court case law means the IACtHR is hierarchically superior to local judiciaries. There is a contradiction between the argument that the Court’s action is ruled by the principle of subsidiarity and the notion of control of conventionality. 4.2.3. TRANSNATIONAL DEMOCRACY VERSUS INDIRECT DEMOCRATIC GROUNDS OF THE LEGITIMACY OF THE COURT

Another consequence of using the constitutional analogy is the need to legitimate the authority of the Court to create a ius constitutionale commune and act as supraconstitutional tribunal. In the view of Max Planck Institute scholars, the legitimacy of international adjudication rests on a principle of transnational democracy.118 As mentioned in Chapter 4, Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune was published in Spanish in 2017 by one of Colombia’s most prestigious universities, the University Externado. Its target audience is the Latin American legal community, especially the constitutional lawyers whose focus of study includes the activism of

114 Urueña, “Global Governance,” 16. 115 Manuel Gongora Mera, “Diálogos Jurisprudenciales Entre La Corte Interamericana De Derechos Humanos Y La Corte Constitucional De Colombia: Una Visión Coevolutiva De La Convergencia De Estándares Sobre Derechos De Las Víctimas,” in La Justicia Constitucional Y Su Internacionalización: ¿Hacia Un Ius Constitutionale Commune En América Latina? Vol. Ii, eds. Bogdandy et al. (México: Instituto de Investigaciones Jurídicas, 2010). 116 Urueña, “Global Governance”; Natalia Torres Zúñiga, El Control De Convencionalidad: Deber Complementario Del Juez Constitucional Peruano Y El Juez Interamericano (Similitudes, Diferencias Y Convergencias) (Saarbrücken: Editorial Académica Española, 2013). 117 Urueña, “Global Governance,” 17. 118 However, the basis or frameworks of legitimacy encompass also principles such as justice, among others.

168  State-centric vs. constitutional discourses? judiciaries. The book attempts to provide a general theory on the democratic legitimacy of international tribunals and courts. It depicts international tribunals as agents of change whose decisions have effects beyond the litigating parties of a case and are tools of transformation. Bogdandy builds arguments that state that the international tribunals hold a democratic legitimacy that stems from a principle of transnational democracy. Regardless of the proposal of the Max Planck Institute scholars, in practice none of the Latin American academics who support the two discourses on the legitimacy of the Court have established a clear position on the existence of a transnational democracy. This does not mean that they do not have an opinion regarding the existence of a democratic principle beyond the states; as discussed at the beginning of this chapter, analysing theoretical positions or discourses entails dealing with implicit aspects that ground the positions studied, as well as the possible consequences of their statements. Concerning the two discourses, a necessary consequence that stems from the use of the constitutional analogy is related to rising concerns about the legitimacy of the Court. Indeed, the fact that the two discourses support the Court’s creation of concepts and practices not recognised by member states implies a need to justify the legitimacy of the Court’s authority. In this regard, scholars of both discourses should have a view on the transnational democratic principle for two reasons. The first is that it is an inevitable consequence of profiling the Court and its functions as a constitutional tribunal exerting judicial review. The second is linked to the fact there is a direct relation between the two discourses and the project of the Max Planck Institute. In that sense, even if individual scholars within the constitutional discourse do not support the arguments related to the principle of transnational democracy as the one that grounds the authority of international tribunals, their publications are linked to the project of ius consitutionale commune in Latin America. This means that the scholars of the constitutional discourse should pay attention to its link to other projects that the Max Planck Institute supports. More specifically, the ICCAL project is connected to the work of Bogdandy, Venzke and Goldman on the democratic legitimacy and authority of international institutions and the design of a theory of “international public law” or institutional law.119 The connection between these ongoing projects is clear since the academic writings about ICCAL are directly informed by the theoretical framework built by the abovementioned academics.120

119 Philipp Dann, Matthias Goldmann, Rüdiger Wolfrum, Armin Bogdandy, and Jochen Bernstorff, The Exercise of Public Authority by International Institutions (Berlin, Heidelberg: Springer Berlin / Heidelberg, 2009); Armin von Bogdandy, Matthias Goldmann, and Ingo Venzke, “From Public International to International Public Law: Translating World Public Opinion into International Public Authority,” European Journal of International Law 28, no. 1 (2017): 115–145. 120 As a sample see: Armin Von Bogdandy and Rene Urueña, “International Transformative Constitutionalism in Latin America,” The American Journal of International Law 114, no. 3 (2020): 403–442.

State-centric vs. constitutional discourses?  169 Indeed, Bogdandy and Urueña have built arguments that portray the IACtHR has a mandate grounded on a transnational Latin American regional public or regional demos.121 In general terms, Latin American scholars working with the constitutional discourse should at least discuss the statements made by Bogdandy. They should reflect or discuss to what extent transnational democracy exists and the possible features of such a principle. If, hypothetically, the public authority of the Court is informed by a principle of transnational democracy, we must ask whether there is a transnational citizenship and, if so, what criteria ground it,122 among other questions. The notion of transnational citizenship also requires discussing how to frame the democratic authority of the international judiciary, including how to “democratize” its decision-making processes. It would be helpful for the state-centric scholars—if they think it is relevant— to make a clear statement on the concept of democracy as a source of IACtHR legitimacy. Their arguments demonstrate an understanding of the Court also grounded on a notion of progress and evolution in the role of international institutions and the nature of international law. The state-centric scholars’ support for and validation of constitutional analogies and the role of the Court as lawmaker implies that they position themselves far from the more traditional understanding of international law, in which the legitimacy and authority of a tribunal stems exclusively from states’ consent.123 Were the state-centric scholars to start debating the existence of a transnational democracy, it seems unlikely that they would embrace the constitutional discourse’s notion of it. They would argue in favour of a non-ideal notion of democracy at the international level that would focus on making appointment and decision-making proceedings “democratize” themselves.124 If so, the statecentric scholars would not need to discuss the existence of a transnational citizenship (addressed by ideal theories). Another possibility is that state-centric scholars

121 Bogdandy and Urueña, “International Transformative Constitutionalism.” 122 For example, the “all affected principle” supported by Held and others and the notion of demoi put forward by Boham, among others. James Bohman, Democracy across Borders: From Dêmos to Dêmoi (Cambridge, MA: MIT Press, 2010); David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995). For critique of the arguments related to the concept of transnational democracy by cosmopolitan and deliberative scholars, see: Schaffer, Democrats. 123 Bogdandy and Venzke have built a categorisation of the different stages in the evolution of international adjudication: (1) Courts as instruments of dispute settlement; (2) Courts as organs of the value-based international community; (3) Courts as institutions of legal regimes; (4) Toward a democracy-oriented theory. Armin von Bogdandy and Ingo Venzke, “In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification,” European Journal of International Law 23, no. 1 (2012). In the same sense, Grossman argues that the state-consent model of normative legitimacy is outmoded since international tribunals’ decisions have an impact beyond litigating parties and the purposes of international adjudication. Grossman, “The Normative Legitimacy,” 65–67. 124 Jonathan W. Kuyper and Theresa Squatrito, “International Courts and Global Democratic Values: Participation, Accountability, and Justification,” 43, no. 1 (2017): 152–176.

170  State-centric vs. constitutional discourses? would accommodate the republican tradition of international law,125 understanding the international order as an association of (liberal) democratic states whose legitimacy rests on the will of people.126 The international order and institutions then hold indirect democratic grounds stemming from the legitimacy of democratic states. The problem with these hypothetical arguments is that they do not challenge the proposal of Bogdandy and Venzke. Both discourses rely on the progressive nature of the international legal order. Firstly, they both engage with the advancing complexity of international institutions and their increasing influence over national orders. Secondly, they both engage with the idea that constitutionalising (with democracy and human rights as universal values) the Latin American region proves its advancement and progress towards a model similar to Western constitutional orders.127 Both discourses thus represent variants of the liberal paradigm of international law that is at the core of the project of proliferation of international tribunals, and that informs theories on global governance and international authority and the content of the values considered universal, such as justice, human rights and democracy. The two discourses embrace a moral approach to the nature of both international law and the nation state, in attributing to nation states the adjective “liberal” or “illiberal.” Their position on the notion of democracy beyond states is not descriptive or objective, but involves a political choice. In general, the two perspectives, either through silence or the eventual development of arguments on the idea of transnational democracy, are ideological. The two discourses depict a unidirectional progress narrative that enshrines the liberal model of international law and relations as the only path, the only way to understand the world. In their understanding of the progressive evolution of the authority of the Court, everything becomes self-evident: neither progress nor the increasing role of the Court (and judges) in building democracy locally and internationally need explanation.

5. Conclusions This chapter has addressed the first part of the critique of the discourses on the legitimacy of the IACtHR. Firstly, it has shown how the use of constitutional analogies, the notion of dialogue and the notion of democratic transformation

125 Gargarella could position himself in the republican tradition. In December 2016, the author had an informal interview with him in Buenos Aires, during a seminar organised by Pluricourts. He stated that he followed the arguments and theory raised by Pettit. 126 Philip Pettit, “Legitimate International Institutions: A Neorepublican Perspective,” in The Philosophy of International Law, 2010, eds. Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010). 127 See, in Chapter 6, the discussion on the ideology behind the democratisation narrative, which serves as a framework of progress in which the Court is positioned as a necessary agent of transformation and advancement of democracy and human rights.

State-centric vs. constitutional discourses?  171 constitute the premises framing the Court’s legitimacy. While the chapters described these three aspects separately, they work together and each finds its roots in a constitutional understanding of the functioning of the Inter-American System of Human Rights and the Court as a supraconstitutional tribunal. The chapter has proposed that the two discourses are not in real opposition, and that similarities ground the core contents of their arguments. These similarities become explicit with regard to the existence of a ius constitutionale commune built by the IACtHR and the local judiciary through judicial dialogue. Moreover, both discourses reproduce the Court’s self-understanding of its supraconstitutional role in the Latin American region. More specifically, the chapter posited that the scholars supporting the constitutional discourse directly reproduce and interpret the case law of the Court. As a result of the work of these scholars, the image of the Court as a constitutional tribunal ruling on the content of human rights and democracy in the region has been reinforced. Actions of key actors confirm the dynamics of self-interpretation and self-understanding (self-validation) governing the relations between the Court and scholars of the constitutional discourse. The chapter described the roles of Sergio García Ramirez and Eduardo Ferrer Mac-Gregor, who have been or are IACtHR judges and also participate in the ICCAL project sponsored by the Max Planck Institute and the Instituto de Investigaciones Jurídicas. Their publications, jointly with the articles by academics like Bogdandy, directly contribute to constructing the idea of a hierarchical system of human rights protection in which the Court has the last say. Instead of rejecting the use of constitutional arguments that support the idea of the Court as a supraconstitutional tribunal or analysing the self-validatory dynamics of the constitutional discourse, the scholars of the state-centric discourse reinforce the constitutional mindset.128 The key actors that have been identified here are Roberto Gargarella and Jorge Contesse, who have also participated in the network of scholars supporting the constitutional discourse. Gargarella in particular bolsters the constitutional understanding undergirding the constitutional discourse when he raises a critique that resembles the traditional critique of judicial review with regard to its counter-majoritarian role.129 This chapter has also shown that, with their constitutional arguments, the scholars of the constitutional approach deny the hierarchical nature of their portrayal of the Court. They use the concept of dialogue to make a vertical approach to the role of the Court look horizontal. Indeed, even when they refer to dialogue, the constitutional scholars develop no rules or criteria for its dynamics. Even when some constitutional scholars argue in favour of developing a margin of appreciation, they do not provide any examples and they say the System has not evolved to a stage at which states and people deserve to be subjects of trust.

128 Martti Koskenniemi, “Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalizati,” Theoretical Inquiries in Law 8, no. 1 (2006): 2–36. 129 Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999).

172  State-centric vs. constitutional discourses? The state-centric discourse also rests on the notion of dialogue and promotes the margin of appreciation as a tool for balancing the authority of the Court and protecting the democratic principle of the Latin American states. Again, however, they do not develop arguments to settle the rules for applying these techniques. In consequence, both discourses promote a notion of dialogue that is empty and resembles a notion of monism rather than a horizontal pluralism. An ideological flaw is present because despite their arguments in favour of the notion of dialogue, they do not really challenge the verticality of the Court. The ideological strategy behind the use of the constitutional analogy itself works on three levels. Firstly, the analogy could be defined as a tool of flexibility that allows the “informal” modification of the functions of international institutions, that is, the expansion of their competences. The Court and the Constitutional discourse have made use of the constitutional analogy to create figures such as the control of conventionality, or to define the Court as the ultimate interpreter of the ACHR. Secondly, the constitutional analogies also have a constitutive effect on understanding the nature of international law, the relationship between national and international law, the relationship between the local and international judiciary and the role of the legal experts in shaping the world. The constitutive consequences of the use of the constitutional analogy do not come out of thin air, and the contents informing the constitutional analogy are also shaped by reality. The contents that inform the international field as a consequence of the use of constitutional analogies are not remotely contingent. In this case, the ideological strategy of the two discourses can be defined as one of reification, since they both adopt an objective, descriptive narrative of constitutionalising the role of the Court. They overlook that this narrative acts in favour of legal experts, who establish a relation of domination with regard to the protection of rights in the Latin American region. In a third level of analysis, the constitutional analogy naturalises a notion of constitutionalism that, rather than contingent or objective, is the product of the historical and political context. This notion, emphasising the protection of rights and judicial activism, is informed by an understanding of progress that has as an ideal model a notion of liberal constitutionalism grounded on the Western tradition and shaped according to the interests of the hegemonic powers that dominated the region in the 20th century. In that account, the progress makers or agents of transformation that enable progress are judges, more specifically the IACtHR. The next and final chapter explores the ideological strategies and outcomes that inform and stem from the notions of democracy and human rights that the Court and both discourses embrace. Finally, constitutional analogies help promote the idea that authority needs to be legitimated through normative values such as democracy, justice or just the defence of human rights, not only through the consent of states. Once the constitutional nature of the Court’s role has been validated by the two discourses, the functions of the Court are informed by the notion of false necessity (by a strategy of reification). That is, the Court becomes a constitutional agent that is a

State-centric vs. constitutional discourses?  173 key actor in constructing a ius constitutionale commune and a necessary agent for human rights protection, whose authority has increased as a consequence of the progress and evolution of constitutionalism internationally. Perhaps, we have to disentangle the link between human rights protection and the role of the international judiciary in order to reimagine an alternative path in which people, not legal experts, decide how they will engage with the protection of human rights, democracy and constitutionalism. Then legitimacy is not necessarily an issue, because the role of the Court is contingent rather than necessary, since it is part of a strategy designed from below.

6

Ideology and the image of the IACtHR as democracy-builder

Introduction As stated in Chapter 5, the constitutional and state-centric perspectives share three common criteria that ground their understanding of the authority and legitimacy of the Court—the constitutional analogy, the notion of subsidiarity and the notion of democratic transformation. This chapter discusses the third argument related to the legitimacy of the Court, namely the idea that it is an agent of democratic transformation in a context of progress or consolidation of democracies in the Latin American region. The argument linking democracy and the legitimacy of the Court has two dimensions—(1) a discussion of whether the Court’s authority is based on transnational democratic grounds1; (2) the argument that the Court is an agent of democratisation whose decisions shape democracy at the local level. However, the chapter only focuses on the second dimension of the arguments on the role of the IACtHR as an agent of democratisation of local political communities. Overall, the notion of the IACtHR as an agent of democratisation of Latin American political communities mirrors ongoing perspectives concerned with the rise of tribunals and the proliferation of judicial review in new democracies, constitutional courts with strong powers or an activist profile case law. Mainstream scholars profile the case law of international courts as leading or successful samples of democratization and progress.2 For example, a recent work of Daly itself assumes that the IACtHR performs the role of democracy-builder.

1 Chapter 5 introduced arguments related to the notion of transnational democracy and its indirect democratic grounds for the authority of the Court to perform competences not recognised in the ACHR. 2  Tom Gerald Daly, “The Alchemists: Courts as Democracy-Builders in Contemporary Thought,” Global Constitutionalism 6, no. 1 (2017): 113. In the Latin American context, the role of the judiciary in politics and democratisation has also been an object of analysis. See: Julio Ríos Figueroa, “Institutions for Constitutional Justice in Latin America,” in Courts in Latin America, eds. Gretchen Helmke and Julio Rios-Figueroa (Cambridge: Cambridge University Press, 2011); Julio Ríos-Figueroa, Constitutional Courts as Mediators: Armed Conflict, Civil-Military Relations, and the Rule of Law in Latin America, (Cambridge: Cambridge University Press, 2016).

DOI: 10.4324/9781003200888-7

IACtHR as democracy-builder  175 Others make general assessments on the role of local and international tribunals and argue that they have taken on dramatic roles in local and European governance.3 This chapter is directly connected to the idea of ius constitutionale commune discussed in Chapter 5, since democracy and human rights are two of its core components. The general object of this chapter is to analyse critically how the constitutional and the state-centric approaches have developed the notion of the IACtHR as an agent that promotes democracy. This critical analysis aims to demonstrate the ideological flaws of the notion of democracy embraced by the state-centric and constitutional approaches. The chapter will also trace how the two legal discourses’ understanding of democracy fit together with the Court’s perspective on democracy and its role as democracy-builder. In that sense, the chapter aims at demonstrating how the conflict between the two legal discourses is only apparent, while they both embrace a limited understanding of democracy and discard it to equate it as the will of people. Concretely, the chapter is divided into two sections. The first section provides an overview of the two legal discourses on the concept of democracy and the role of the IACtHR as a democracy-builder. The second section scrutinises the assumptions and arguments concerning democracy and democracy-building driven by the state-centric and constitutional legal discourses. This section shows how the notion of democracy embraced by the two legal discourses is profiled as a natural, contingent event in the Latin American context obscuring its political roots. Equally, the second section shows how the notion of progress grounding the notion of democracy empowers the IACtHR as a pivotal agent of democratisation. Also, this section highlights how the notion of democracy grounding the Court’s and the two discourses’ understanding of the notion of democracy hides a distrust over majorities and converts the democratic proceedings to be valuable in themselves. Finally, the chapter addresses a critique of how the two legal discourses validate the notion of procedural democracy as a mechanism to promote substantive equality and transformation.

1. Democracy and the IACtHR as a democracy-builder Defining the role of the Court in terms of democracy-building necessarily means adopting a concrete perspective on the concept of democracy itself, the notion of democratic transformation and the role and functions of international structures in promoting democracy. Although the concept of democracy is a contested concept, it is possible to state that the two discourses on the legitimacy of the IACtHR adopt a notion of democracy as a set of rules and procedures and discussions focused on the consolidation of those rules and procedures.

3 Diana Kapiszewski, Gordon Silverstein, and Robert Kagan, Consequential Courts: Judicial Roles in Global Perspective (Cambridge: Cambridge University Press, 2013), 1.

176  IACtHR as democracy-builder In tandem, the two discourses’ understanding of the concepts of democracy and human rights are connected to the self-understanding of the Court. While the constitutional discourse reflects or directly supports the Court’s self-understanding and works as a mechanism of self-interpretation, the state-centric approach engages in that self-interpretation because it does not entirely challenge the terms in which the constitutional approach frames the IACtHR as democracy-builder. The scholars supporting the constitutional approach argue in favour of a model of participative rather than representative democracy that goes with the recognition of political actors with specific identities (indigenous, LGBT), the protection of social rights and stronger state intervention in “the economy against economic neoliberalism and the free market system.”4 Clérico and Aldao focus on a notion of substantive equality grounded on the politics of recognition.5 For the latter, this represents an advance in establishing democracy and rule of law in the region. Thus, in their view, the Court can intervene to protect vulnerable groups even if/ when that entails exerting competences beyond states’ consent. Also, the constitutional approach points out that promoting democracy is a progressive goal that implies passing from acquiring stability in the protection of basic rights (political and civil rights) to the promotion of equality. The notion of equality that the state-centric approach supports involves focusing on how equality can be enhanced through democratic proceedings. Gargarella, advocate of the state-centric approach, argues that the conception of democracy in the Inter-American System of Human Rights fits together with his definition of the deliberative notion of democracy that meets more requirements than the electoral model. He embraces the deliberative democracy model as the ideal one that enhances dialogue and participation in different political spaces (not only in the parliament) and proceedings (consultations and referendums). He sees deliberation itself as being structurally based on the principle of equality and as reproducing equality. This becomes clear when he defines prior consultation as a deliberative model that can address or provide a democratic solution for including indigenous people in the political economic model that the Latin American states have adopted. However, with regard to the role of the Court in promoting equality, he does not necessarily give a general account of what equality means as part of the ius constitutionale commune.6

4 Armin von Bogdandy et al., “Ius Constitutionale Commune En América Latina: A Regional Approach to Transformative Constitutionalism,” Max Planck Institute for Comparative Public Law and International Law. MPIL Research Series 2016–2021 (2016), http://dx.doi. org/10.2139/ssrn.2859583 5 Martín Aldao and Laura Clérico, “A Multidimensional Approach to Equality in the InterAmerican Context: Redistribution, Recognition, and Participatory Parity,” in Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune, eds. Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, and Mariela Morales Antoniazzi (Oxford: Oxford University Press, 2017). 6 The work of Gargarella is broader than the articles mentioned here. For example, he has views on the concept of equality and about the role of the judiciary in promoting equality. See:

IACtHR as democracy-builder  177 The definition of procedural democracy embraced by scholars supporting the constitutional and state-centric discourses coincides with the core elements that the IACtHR has endorsed through its case law, such as Yatama v. Nicaragua, Castaneda Gutman v. Mexico, Constitutional Court v. Peru, among others. That is one in which representative democracy is directly linked to the protection of human rights. The Court has endorsed the definition of democracy contained in the Charter of the Organization of American States and the Inter-American Democratic Charter, adopted on September 11, 2001: The essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organisations, and the separation of powers and independence of the branches of government.7 This basic consensus—on democracy as a set of procedural rules—electoral, participatory or deliberative rules—between the arguments of the two discourses and the Court constitutes the basis for building the image of the IACtHR as a democracybuilder. In their statements, the judicial protection of human rights directly impacts the strengthening of democracy. When the scholars supporting the two discourses attribute to the Court a role in promoting democracy through human rights protection, they engage with the notions of change, progress and, more concretely, transformation. The scholars of the constitutional discourse have argued explicitly that the existence of a ius constitutionale commune in the Latin American region has led the region towards a transformation enhanced by the IACtHR.8 The scholars of the state-centric discourse are less convinced that the IACtHR has a transformative role concerning democracy and human rights. However, as argued in Chapter 5, in engaging with the existence of a ius constitutionale commune, they too support the same notions of democracy and human rights that lead to profiling the Court as a necessary agent for democratic transformation.9

Roberto Gargarella, The Quest for Equality (Cambridge: Cambridge University Press, 2010); Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution (New York: Oxford University Press, 2013); Elin Skaar, Siri Gloppen, and Roberto Gargarella, Democratization and the Judiciary: The Accountability Function of Courts in New Democracies (London: Cass, 2004). 7 Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. Series C No. 184 ¶ 142 (August 6, 2008). 8 Armin von Bogdandy, “Ius Constitutionale Commune En América Latina: Una Mirada a Un Constitucionalismo Transformador,” Revista Derecho del Estado, no. 34 (2015): 3–50. 9 The notion of transformation here has to be grasped within the theoretical framework of transitology and democratic consolidation. Guillermo O’Donnell, Philippe C. Schmitter, and Laurence Whitehead, Transitions from Authoritarian Rule: Comparative Perspectives (Baltimore: Johns Hopkins University Press, 1986).

178  IACtHR as democracy-builder Moreover, the two legal discourses (state-centric and constitutional) have clearly adopted a notion of democracy portrayed in terms of progress that it is used to mark a distance with the past. This notion of democracy in terms of linear progress is notable when the two discourses refer to the switch from dictatorships to democracies,10 as well as to the notions of weak and mature democracies (in terms of quality)11 or to the constitutionalisation process of the Latin American ius commune.12 Indeed, scholars supporting both discourses highlight landmark cases that help bestow on the IACtHR the profile of solvers of political and economic problems of the new democracies in Latin America. They usually divide the role of the IACtHR as democracy-builder into two periods, one of transition and a second one of democratic consolidation. For example, as shown in Chapter 4, scholars of both groups point out how the IACtHR has helped strengthen the rule of law and the principle of democracy in the new Latin American democracies.13 They describe how the Court helped promote standards related to the right to life, judicial protection, freedom of expression14 and the rights of authorities and public servants of the new and weak democratic governments.15 For the second period, the state-centric approach and the constitutional perspective differentiate between the region’s mature and less developed democracies.

10 Jorge Contesse, “Resisting the Inter-American Human Rights System”; Binder, Christina. “The Prohibition of Amnesties by the Inter-American Court of Human Rights,” German Law Journal 12, no. 5 (2011): 1203–1230. 11 Roberto Gargarella, No Place for Popular Sovereignty: Democracy, Rights, and Punishment in Gelman v. Uruguay, SELA (Seminario Latinoamericano De Teoría Constitucional y Política), 2013, accessed October 8, 2021, https://digitalcommons​.law​.yale​.edu​/cgi​/viewcontent​.cgi​?article​=1123​&context​=yls​_sela. 12 Mariela Morales Antoniazzi, “Interamericanización como mecanismo del Ius Constitutionale Commune En Derechos Humanos en América Latina,” in Ius Constitutionale Commune En América Latina.Textos Básicos Para Su Comprensión, eds. Armin von Bogdandy, Mariela Morales Antoniazzi, and Eduardo Ferrer Mac-Gregor (Querétaro: Instituto de Estudios Constitucionales del Estado de Querétaro, 2017). 13 The most recent pronouncement of the IACtHR about the relationship between democracy and human rights can be found in the Advisory Opinion 28. Indefinite Presidential Re-election in Presidential Systems in the context of the Inter-American System of Human Rights (Interpretation and scope of Articles 1, 23, 24 and 32 of the American Convention on Human Rights, XX of the American Declaration of the Rights and Duties of Man, 3(d) of the Charter of the Organization of American States and of the Inter-American Democratic Charter), Advisory Opinion OC-28/21, Inter-Am. Ct. H. R (Series A) No 28. (June 7, 2021), https://www​.corteidh​.or​.cr​/docs​/opiniones​/seriea​_28​_eng​.pdf. 14 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights, Advisory Opinion OC-5/85, Inter-Am. Ct. H. R Series A No. 5 (November 13, 198), https://www​.corteidh​. or​.cr​/docs​/opiniones​/seriea​_05​_ing​.pdf; The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86, Inter-Am. Ct. H. R (Series A) No. 6 (May 9, 1986), https://www​.corteidh​.or​.cr​/docs​/opiniones​/seriea​_06​_ing​.pdf. 15 Constitutional Court v. Peru. Merits, Reparations and Costs, Judgment, Inter-Am. Ct.H.R. (Series C) No. 71 (January 31, 2001).

IACtHR as democracy-builder  179 Also, they both imply that the current challenges of Latin American democracies are related to structural inequalities threatening the political system grounded on a notion of electoral and procedural democracy. For example, Bogdandy, Morales and Ferrer Mc Gregor argue openly about the impact of poverty and inequality in the Latin American democratic systems. In tandem, the state-centric approach scholars use the same perspective to describe the political landscape in Latin America. Contesse, for example, highlights that the democratic principle rules the majority of Latin American states. He also highlights the current issues related to dramatic situations involving minorities and structural social and economic injustice. Overall, the differences between the two legal perspective objects of study seem to be of degree; therefore, they are not in real opposition. The following section will provide the ideology critique of the premises grounding the constitutional and state-centric discourses on the legitimacy of the IACtHR as a democracy-builder.

2. Ideology critique of the two legal discourses on the legitimacy of the IACtHR as a democracy-builder This section shows the ideological flaws of the premises and understanding of the two legal discourses on the legitimacy of the IACtHR as a democracy-builder. It also demonstrates how the two legal strands reproduce the Court’s interpretation of democracy. The section focuses on the use of the Court’s decisions to naturalise (reification) the idea that an international court promotes democracy. It finally pays attention to the possible consequences of profiling the IACtHR as a democracy-builder, such as the disempowerment of people as the main actors of transformation in their local spaces.

2.1. Naturalisation and false contingency of the concept of procedural democracy None of the scholars supporting the discourses discussed here have developed a deeper reflection of how the Latin American states came to embrace the current model of procedural democracy that seems predominant in the region, especially during the period following the end of the dictatorships. At least, in the arguments they raise in relation to the Court as an agent of democratic advancement or transformation, the legal scholars of neither discourse offer a penetrating analysis that connects international political history with the outcomes of the legal choices taken by the Latin American states. Namely, neither of the two discourses on the legitimacy of the Court establishes an explicit link between local struggles and US influence in building the process of democratisation of the former dictatorships. For example, scholars do not seriously probe the real causes of human rights violations during the dictatorial period, as well as the influence of the United States in the transition to democracies. Recognising the existence of human rights violations in the Latin

180  IACtHR as democracy-builder American region and pointing out that the dictatorial governments are mainly responsible for them does not explain that those unlawful actions were never random or free-floating. For example, even when the scholars of the two discourses make a connection between the human rights violations and Operation Condor (a US policy), they do not engage deeply with recognising how the operation shaped the context for democratisation. For example, they do not analyse how Operation Condor helped de-radicalise popular movements and promote, afterwards, a process of democratisation driven by US interests. Indeed, they overlook analysing whether and how the procedural democracy that Latin American states adopted as a constitutional and legal principle of their national orders aimed to stabilise the interests of the United States in Latin America by securing free markets and procedural rules of democratic elections. Low-intensity democracy focused on proceedings and not necessarily on outcomes means ruling out democracy understood as people’s government.16 The United States adopted a strategy of political aid to build up political institutions in the countries in crisis. This engagement with democracy as a foreign policy entailed a shift in institutions from its Central Intelligence Agency (CIA, active in supporting Operation Condor) to its National Endowment for Democracy (NED).17 NED provided, for example, leadership training, education in democracy, ideas and information and development of institutional ties and working relations between US individuals and organisations and their counterparts in the countries in crisis. These initiatives aimed at an intellectual exchange between dominant and subordinated groups that can be defined as a consensus-building process. Since the state-centric and the constitutional approach scholars overlook the historical context of the process of democratisation, they portray the shift from a dictatorship to a democratic government with a democratic constitution as a natural step, in which the law is neutral. For example, in relation to the constitutional discourses, look at the process of formation of a ius constitutionale commune as if it were detached from the political context of asymmetrical relations between the Latin American states and the United States. The notion of ius commune, thus, appears to be just the product of dialogue among judges. Even if that were the case, those judges may be counterparts of the hegemonic power, since they have adopted and strengthened the notion of procedural democracy it promotes. By naturalising the notion of procedural democracy, they close down any discussion about a concept of democracy, beyond participatory, deliberative or representative models that posits people as its central agents. If the “will of people” is at the core of the notion of democracy, talking about democracy or human rights

16 William Robinson, Promoting Polyarchy: Globalization, US Intervention, and Hegemony, vol. 48, Cambridge Studies in International Relations (Cambridge: Cambridge University Press, 1996). 17 Robinson, Promoting Polyarchy.

IACtHR as democracy-builder  181 without reference to people means taking these notions as descriptive terms for liberal societies as they are today. Discarding the notion of people, or not discussing it as the core element of democracy, implies that procedural democracies are ends in themselves. Although it is not the object of this book to discuss the notion of people,18 it is important to reflect on whether the above-mentioned models of democracy are real weapons that allow people to define the social, economic and political aspects of their lives and pursue real emancipation. In the same vein, the engagement of the two discourses with the notion of procedures as a core element of democracy may find themselves engaging with a strategy of unification as an ideological tool. Following Marks, one could argue that taking the universalisation of the notion of procedural democracy as neutral and contingent can confer the illusion that political institutions are inclusionary or that a social body is defined by its wholeness rather than by social and economic divisions. The universality of the right to vote or mechanisms of deliberation may be used to hide the gap between low-intensity democracy and an inclusory democracy that rests on the will of people.19

2.2. Procedural democracy: expert’s unfinished journey As shown in Chapter 5, the two discourses engage with the idea of ius constitutionale commune, embracing the notion of progress at its core. The academic work written of such as Gargarella, Contesse, Bogdandy, Aldao and Clerico, and Mendez, who have directly treated the link between democracy and human rights, indicates that they share a vision of Latin American democracies linked to the notion of progress. Indeed, the two discourses portray the notion of procedural democracy in opposition to dictatorships. In doing so, they reduce the alternatives for change or progress to a duality between dictatorships and representative democracy. In the view of both legal perspectives, procedural democracy represents enlightenment and advancement, while the dictatorial governments mirror the notion of chaos and darkness. Equally, the adoption of procedural democratic rules is also portrayed as work-in-progress, that is, in perpetually unfinished consolidation. They overlook analysing whether and how the procedural democracy that Latin American states adopted as constitutional and legal principles of their national orders aimed to stabilise the interests of the United States in Latin America by securing free markets and procedural rules of democratic elections. Low-intensity democracy focused on proceedings and not necessarily on outcomes means ruling out democracy understood as people’s government.

18 People are neither an entity out of time nor a stable and unitary entity. For a further analysis, see: Illan Rua Wall, Human Rights and Constituent Power: Without Power or Warranty (London: Routledge, 2012). 19 Susan Marks, The Riddle of All Constitutions (Oxford: Oxford University Press, 2003), 65.

182  IACtHR as democracy-builder Contesse, who represents the state-centric discourse, clearly adopts a narrative in which democracy follows the end of dictatorships and continues in the process of consolidation. For him, this narrative frames the actions and authority of the Court, and he argues thus: Scholars have identified three distinct periods in the development of the IAHRS.30 The first began in 1978, with the entry into force of the American Convention, and ended around 1990, as the authoritarian regimes of member states lost power. This period is defined by the IAHRS’s responses to authoritarian regimes in the region executing massive and systematic human rights violations in the form of state policy. … In the second phase of the IAHRS development, the system acclimated itself to a changing political environment in which member states were transitioning from authoritarianism to democracy. It faced a new breed of cases addressing human rights questions much subtler—freedom of expression, access to information, and transparency—than those raised by the atrocities of the earlier period. … The third period of the IAHRS began around 1996 with the system’s response to pressure from the transnational civil society to shift focus from the “promotion” of human rights and the establishment of the rule of law in emerging democracies to the “protection” of the rights of individuals and groups within these newly established democracies. 50 Human rights advocates demanded that supranational bodies take steps to protect the rights of specific vulnerable groups, such as women, LGBTI individuals, and indigenous peoples.20 In the same vein, the constitutional strand has stated that the project of ius constitutionale commune positions itself in a context in which Latin America has overcome the issue of dictatorships and faces problems of quality or consolidation of democracy: Data from the past 20 years suggest that not only economic crisis trigger distrust towards democratic institutions, but also persistent inequality, violence and corruption. In that sense, many not only want respect of their electoral, civil and political rights but also claim for security, jobs, a higher standard of living—and some seem willing to support authoritarian regimes to get them. In other words, “democracy is not the only game in town.” Democratic regimes have only been marginally better at achieving such social goals, making it more difficult for citizens to associate democracy with personal improvements. Yet, despite a lack of widespread entrenchment of the

20 Jorge Contesse, “Contestation and Deference in the Inter-American Human Rights System (Subsidiarity in Global Governance),” Law and Contemporary Problems 79, no. 2 (2016): 129–133.

IACtHR as democracy-builder  183 value of democracy in the population, elites do express a much firmer commitment to this form of government than was the case several decades ago. The threat of a military takeover has largely receded. Although authoritarian tendencies remain, there is a greater commitment to making democratic institutions work. Hence, the principle of democracy has some solid ground, on which ICCAL can build.21 Portraying democracy as a journey that involves a maturation or linear progress from a barbaric past to an evolved modernity involves embracing a notion of procedural and liberal democracy as natural or inevitable. The notion of maturing from a minimal (electoral) democracy to a liberal democracy has been criticised for being a cluster notion that uses or rests on the West-centric standard model of democracy, while ignoring that those Western democracies developed in wholly different historical, societal and geopolitical contexts to the new democracies. Also, the fact that the two perspectives accept a procedural democracy as a natural step after the end of dictatorships engages with the idea that Latin American democracies will reach a similar stage to the advanced Western democracies. This understanding of the process of democratisation or consolidation entails adopting categories like mature or weak, more advanced or less developed. These categories are not contingent or indeterminate, but encompass a perspective of democracy that focuses on elections, formal participation or deliberation and obscure the fact that Latin American democracies also face problems of real empowerment that make such democracy an empty vessel for people. As shown in Chapter 4, in this process of consolidation of democracy, legal scholars of both discourses portray the IACtHR as a pivotal actor who, throughout the protection of human rights, is a key agent in the maturation of Latin American democracies. While they support the strong or hierarchical intervention of the IACtHR in cases related to gross violations of human rights, they also pay attention to the change of landscape in which Latin American democracies are moving through a maturation process.22 Consequently, they both discuss what role the IACtHR should have in a landscape in which dictatorships are not a general threat, democratic institutions have developed and human rights protection is not necessarily related to gross violations as in the past. Concerns related to democracy and human rights are now connected to aspects like substantive equality, the protection of minorities and social rights or the protection of democracy in terms of the validity of democratic proceedings.

21 Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan, and Ximena Soley, Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford: Oxford University Press, 2017), 13. Emphasis added. 22 Contesse, “Contestation and Deference”; Bogdandy, “Ius Constitutionale Commune En America Latina: Una Mirada.”

184  IACtHR as democracy-builder Scholars of the state-centric discourse have begun discussing the use of a margin of appreciation (MoA) to protect the decision-making procedures that parliaments and executive branches make at the local level. The introduction of this concept means that constitutional and state-centric scholars will discuss, at most, the degree of intervention of a tribunal in local democracy. However, the fact that the scholars of the constitutional approach do reject the implementation of MoA does not mean that they are in frontal opposition to the state-centric scholars. Although state-centric scholars encourage the IACtHR to adopt self-restraint by applying deference or MoA doctrines, human rights protection and the degree of maturity of democracy continue to be a matter of legal experts and judge’s decisions. Then, the two discourses reduce the notion of democracy to a topic and a set of procedural rules decided by experts. In that vein, the two discourses reduce the individual to a subject who believes an expert will take care of her. This approach makes us lose sight of the fact that the human order is constructed and fragile; and that changing the rules of the world is dependent on the commitment of ordinary people to create real transformation. In discussing the level of intervention of the IACtHR under the language of MoA, the constitutional and the state-centric scholars reaffirm the notion of procedural democracy as a synonym of transformation, and they discard any other attempt to understand a more radical idea of human rights detached from the concept of subsistence or survival to face mass violations of human rights or poverty and exclusion.

2.3. Ideology and distrust over majorities Chapter 4 described how the constitutional scholars state that human rights constrain democracy in almost absolutist terms. For this approach, all the Latin American democracies are in consolidation and, even when some may be more “mature” than others, there is no argument in favour of a majoritarian decision in a democratic local space. This position reproduces the Court’s understanding of human rights and democracy, in which the protection of the former seems to be absolute before the latter.23 In contrast, a state-centric author like Gargarella has differentiated between amnesty laws adopted through democratic proceedings and the others adopted by less democratic or dictatorial governments.24 Gargarella has argued on the correctness of the democratic proceedings in Uruguay that approved its amnesty law, expressing discontent towards the top-down approach adopted by the Court with regard to the universality of the prohibition on amnesties. However, he focused only on percentages of approval from people who participated in two referendum

23 Armin von Bogdandy and Rene Urueña, “International Transformative Constitutionalism in Latin America,” The American Journal of International Law 114, no. 3 (2020): 403–442. 24 See Chapter 4.

IACtHR as democracy-builder  185 processes that upheld the amnesty laws in Uruguay. That is, he only argued in favour of the democratic proceedings with quantitative arguments. In short, in fewer than ten lines, and basically without offering any argument, the IACtHR in Gelman overruled without any extenuating or mitigating considerations a decision of the Uruguayan Congress that had been ratified by the popular opinion of more than 50% of the population expressed through clean and direct means. What we would call the problem of democratic pedigree was thus clearly laid out in its most serious form.25 Gargarella undoubtedly challenges the universalistic view of the Court on democracy and human rights, but he has not analysed more deeply the distrust of the notion of democracy as the will of people that is present in the Gelman v. Uruguay decision.26 Indeed, the decision does not only show distrust of the state, but also implies distrust of the will of people as the ultimate holders of the meaning of democracy. [T]he protection of human rights constitutes a impassable limit to the rule of the majority, that is, to the forum of the “possible to be decided” by the majorities in the democratic instance, those who should also prioritize “control of conformity with the Convention” (supra paras. 193), which is a function and task of any public authority and not only the Judicial Branch.27 Although Gargarella’s contribution usefully points out the distrust of the Court towards majorities, his focus on the quantitative percentages of acceptance of the amnesty law leaves the quality of the proceedings untouched. He does not discuss how genuine, how egalitarian Uruguay’s democratisation is and whether the parties involved all had the same access and tools to debate the law’s validity.28 Moreover, this focus on quantities not only validates procedures and their design in themselves; indeed, Gargarella’s perspective risks mistaking the value of procedures as ends in themselves and not as means that allow people to exert self-determination or their own will. In that vein, providing per se value to proceedings is

25 Gargarella, No Place for Popular Sovereignty? 26 Eduardo Ferrer Mac-Gregor, “Eficacia De La Sentencia Interamericana Y La Cosa Juzgada Internacional: Vinculación Directa Hacia Las Partes (Res Judicata) E Indirecta Hacia Los Estados Parte De La Convención Americana (Res Interpretata) (Sobre El Cumplimiento Del Caso Gelman Vs. Uruguay),” in Diálogo Jurisprudencial En Derechos Humanos entre Tribunales Constitucionales y Cortes Internacionales, eds. Eduardo Ferrer Mac-Gregor and Alfonso Herrera García (Valencia: Tirant lo Blanch, 2013); Armin von Bogdandy and Ingo Venzke, “In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification,” European Journal of International Law 23, no. 1 (2012): 7–41. 27 Case Gelman v. Uruguay. Merits and Reparations, Judgment, Inter-Am. Ct. H. R. (Series C) No. 221 (February 24, 2011), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_ 221​_ing​.pdf. 28 Gargarella, No Place for Popular Sovereignty?

186  IACtHR as democracy-builder ideological because it can entail obscuring the importance of ensuring that people are able to participate in the decisions affecting their lives.29 Jointly with the gaps in Gargarella’s arguments, it has been mentioned that the scholars supporting the constitutional discourse argue that a democratic decision cannot affect or breach human rights in absolutist terms, making the concept of democracy empty of its content. Judge Ferrer Mac-Gregor has stated that national democratic authorities must follow IACtHR decisions without exception. There is nothing in his arguments in defence of democracy, and he validates the universalistic approach, which discards the defence of majorities. When the constitutional approach denies the possibility that a majority approves an amnesty law due to the limits imposed by standards created by the IACtHR, the notion of democracy becomes empty. Procedural democracy is nothing more and nothing less than implementing a scheme of rights dictated by the IACtHR.30 By doing so, the constitutional discourse reinforces the image of the IACtHR as a supraconstitutional tribunal and the idea that this is the one that defines what democracy means. In general, the arguments of the constitutional discourse and the Court’s case law Gelman v. Uruguay support a top-down perspective that disempowers people. Namely, their understanding of democracy casts people as always in need of judicial aid because judges in the human rights field are profiled as neutral voices and provide progress standards for the region. Democracy is then no longer in the hands of people and can no longer serve as an emancipatory principle against the state, economic powers and the structures that reproduce the knowledge and culture of procedural democracy. In tandem, the state-centric approach does not really challenge the abovementioned dynamics of self-image and self-validation of the IACtHR. Like the constitutional scholars, state-centric scholars argue that after a democratic transition takes place—that is, the process leading to the election of a democratic government and adoption of democratic institutions—it is necessary the IACtHR nurtures democracy because the transition does not ensure that it will remain. The state-centric scholars hold differences in the degrees of distrust over the notion of democracy understood as the will of people. At the most, the state-centric perspective will differentiate between more mature and less mature democracies to tune the work of the IACtHR. The state-centric approach will not call into question the self-attributed image of the IACtHR as a democracy-builder since the latter idea is a core premise grounding its arguments about the need to start differentiating between weak and more robust democracies.

29 Marks, The Riddle of All Constitutions, 66. 30 Johan Karlsson Schaffer, “Democrats without Borders: A Critique of Transnational Democracy” (PhD diss., University of Gothenburg, 2008), 103.

IACtHR as democracy-builder  187

2.4. Democratic proceedings and substantive equality The Court and the two legal discourses promote the idea that democracy as a set of procedural rules also entails consolidating the principle of material equality. In the view of these three subjects, democratic proceedings such as participatory or deliberative help overcome eventual situations of structural inequality in the Latin American context. This idea is connected to the case law of the IACtHR dealing with issues concerning excluded minorities who face high levels of poverty and discrimination. In those cases, the IACtHR has opted to recognise political participation rights as mechanisms to secure human rights such as property and the right to life (environmental rights). For example, in Saramaka v. Surinam (2007), the Court recognised the right to property of the Saramaka people, a tribal Afro-descendant group whose territory was at stake due to large investment projects planned by the State of Surinam. The Court recognised the rights to property grounded on “the special relationship that members of indigenous and tribal peoples have with their territory.” Likewise, in the view of the Court, the State of Surinam had the duty to carry out a prior consultation when concessions for exploring and exploiting natural resources in indigenous or tribal territories were at stake. The Court established that the State must consult with the communities affected by the development or investment project, reasonably share the benefits with them and complete assessments of the project’s environmental impact. It also established that the State must obtain the indigenous people’s free, prior and informed consent in cases involving major investment projects.31 In the view of the IACtHR, the proceeding in itself is a mechanism that will ensure indigenous and Afro-descendants secure their access to land and right to property. The IACtHR focused on providing some standards, such as adapting the consultation to the customs and traditions of tribal and indigenous people. Overall, the IACtHR portrayed the right to prior consultation as the weapon to balance the State policy on promoting large-scale investment projects that can potentially affect the human rights of indigenous groups. For the IACtHR, prior consultation serves as a mechanism to challenge the structural inequalities that affect indigenous and tribal people. In that vein, the decision Saramaka v. Suriname highlights, for example, how in the view of the IACtHR, prior consultation and consent are conditions that will lead the communities to obtain a fair and equitable sharing of benefits to be derived from such exploitation. In 2017, the IACtHR decided to link the right to consultation and the right to political participation in a democratic society recognised in Article 23 of the ACHR. In Kaliña Lokono v. Suriname, it analysed the petition of two indigenous

31 Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 172 (November 28, 2007), https://www​.corteidh​.or​.cr​/docs​/casos​/articulos​/seriec​_185​_ing​.pdf.

188  IACtHR as democracy-builder communities against the State of Suriname. The alleged victims could not enjoy or use their traditional territories due to mining operations, the establishment of nature reserves and the provision of property titles to other individuals. The Court assessed that the State had failed to provide guarantees of the right to collective property regarding the mining concession in the Wane Kreek Nature Reserve. According to the Court, the State of Suriname did not ensure effective participation of indigenous people prior to actions such as exploration, exploitation and extraction in mining operations in the territories of Kaliña and Lokono. That omission was defined as a violation of Articles 21 and 23 about Articles 1(1) and 2 of the ACHR.32 The IACtHR repeated its reasoning in Saramaka v. Surinam concerning the value in itself of the prior consultation as a mechanism of change and transformation. It stated that prior consultation and participation of tribal and indigenous communities is a mechanism that helps these groups secure their interests and human rights, such as the right to property and equitable compensation. In the view of the IACtHR, the right to prior consultation in itself helps disadvantaged groups overcome material inequality and exclusion. In tandem, the constitutional and state-centric scholars depict the right to prior consultation as a democratic procedural tool that provides the opportunity for inclusion and transformation to indigenous and Afro-descendant people.33 In their view, the standards created by the Court for procedural democracy help disadvantaged groups overcome material inequality and exclusion.34 Both legal approaches portray the case Saramaka v. Suriname as a sample of the role of the IACtHR as a democracy-builder. Then, the scholars of both approaches support the understanding of the IACtHR about the role of proceedings in promoting substantive equality. The scholars engaged with the two legal discourses on the democratic role of the Court refer to the right to prior consultation as an advancement in the protection of excluded indigenous and Afro-descendant peoples. As mentioned, the work of Aldao and Clerico, which represents the constitutional approach, refers to the protection of indigenous rights as an example of inclusion. In the same vein, Herrera has defined the rules on the right to prior consultation built by the Court high standards that have a transformative impact in the Latin American region:

32 Kaliña and Lokono Peoples v. Suriname. Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H. R. (Series C) No. 309. (November 25, 2015), https://www​.corteidh​.or​.cr​/docs​/ casos​/articulos​/seriec​_309​_ing​.pdf. 33 Juan C. Herrera, “Judicial Dialogue and Transformative Constitutionalism in Latin America: The Case of Indigenous Peoples and Afro-descendants,” Revista Derecho Del Estado, no. 43 (2019): 191–233. 34 Laura Clérico and Martín Aldao, “La Igualdad Como Redistribución y como reconocimiento: Derechos De Los Pueblos Indígenas y Corte Interamericana de Derechos Humanos,” Estudios Constitucionales 9, no. 1 (2011): 157–98; Roberto Gargarella, “Democracy’s Demands,” AJIL Unbound 112 (2018): 73–78.

IACtHR as democracy-builder  189 Free, prior and informed consent (fPiC) of indigenous peoples and Afrodescendants on matters that have the potential to affect their interests and territories has become one of the most powerful tools that positive and jurisprudential law has created in recent decades to protect the collective rights of these populations. 1 In the construction of transformative constitutionalism in the region; 2 the Inter-American Court of Human Rights and the Constitutional Court of Colombia have become a kind of beacons irradiating principles and supranational values.35 In the view of the constitutional scholars the Court should continue developing or clarifying the standards related to the right to prior consultation. This statement finds justification in the way in which these scholars point out how, as part of evolving standards of protection of indigenous rights, the Court has gone as far as developing more specific rules on consultation, like good faith, transparency and compatibility with the customs and traditions of indigenous people.36 The fact that the constitutional scholars see Court standards as transformative devices in themselves overlooks whether the right to consultation has really worked in favour of indigenous people or has been employed ideologically as a tool of domination. It seems that for them it is enough that the Court has built standards on the right to consultation. Since they zoom in on the right to consultation as a landmark of progress, they ignore that this right can be fulfilled in chaotic, violent situations that won’t be solved by consulting or perfecting proceedings to agree on benefit-sharing with indigenous people or evaluating the impact of the economic activities in their territories.37 When scholars of the constitutional approach state that the Court is a thriving democracy-builder solely because it has created the right to prior consultation standards, the flawed reliance on self-validation is evident. Adopting a procedural approach to democracy as the only method to reach equality or inclusion arguably deprives people of genuine participation in the decisions affecting their lives.38 In general, these scholars assume that procedural democracy and a market economy based on the exploitation of natural resources are samples of progress that will change the structural inequalities affecting indigenous, Afro-descendants and other excluded groups. However, this understanding of what democracy implies obscures that the mechanisms of participation do not challenge the economy of extractivism in practice. Indeed, the mechanism of consultation does not

35 Herrera, “Judicial Dialogue and Transformative Constitutionalism,” 193. 36 Efrén Olivares Alanís, “Indigenous Peoples’ Rights and the Extractive Industry: Jurisprudence from the Inter-American System of Human Rights,” Goettingen Journal of International Law 5, no. 1 (2013): 187–214. 37 César A. Rodríguez Garavito, “Ethnicity.Gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields,” Indiana Journal of Global Legal Studies 18, no. 1 (2011): 263–305. 38 Marks, The Riddle of All Constitutions, 66.

190  IACtHR as democracy-builder aim to discuss, under the rule of the will of people, if this economic system shall be valid or not. Apropos the state-centric approach, Gargarella, as mentioned in Chapter 4, has affirmed that the right to prior consultation is proof of the democratic demands and rights that assist indigenous people. For him, the recognition of the right to prior consultation is directly connected to the notion of deliberative democracy. According to this idea, one could state that for him the fact that international law recognises the right to prior consultation is proof that in the Inter-American System the notion of democracy is not only a periodic electoral system, but also has more requirements. He presents his position in the following terms: It also seems that, in our time, international organizations have come to recognize the existence of demanding democratic rights, which numerous countries have put in practice and different international tribunals have enforced. To take just one significant example, consider Convention 169 of the International Labour Organization, referring to the rights of indigenous peoples, whose Article 6 creates an obligation to “consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.” In recent years, the right to prior consultation has been used on numerous occasions in cases contesting the exploitation of natural resources in areas traditionally inhabited by indigenous groups.39 However, the state-centric approach does not take into account that framing the right of prior consultation as a type of deliberative forum at the local level does not ensure that disadvantaged groups can discuss essential aspects of the legal order that entrench certain dynamics of the economic system that constitute root causes of structural inequalities. Despite the ruling on indigenous peoples’ right to prior consultation, there are significant barriers—like that of unequal bargaining power vis-á-vis national governments and extractive industries.40 It is possible that my argument on Gargarella here is flawed, especially because he has referred to the contradiction between neoliberalism and the rights of indigenous people. His work Latin American Constitutionalism 1810–2010: The Engine Room of the Constitution, for example, recognises the contradiction between the demands of indigenous people and political forces’ decision to adopt neoliberal politics. He states that in practical terms, the recognition of indigenous demands in new Latin American constitutions is neutralised by the politics of

39 Gargarella, “Democracy’s Demands,” 76. 40 Alex Page, “Indigenous Peoples’ Free Prior and Informed Consent in the Inter-American Human Rights System,” Sustainable Development Law & Policy 4, no. 2 (Summer, 2004): 16–20.

IACtHR as democracy-builder  191 neoliberalism.41 However, he should make a clearer statement about his view on the right to prior consultation and its link with neoliberal politics when commenting on democracy and human rights, as in 2018 in the article “Democratic Demands,” quoted above. Moreover, for Gargarella, as he mentions in Latin American Constitutionalism 1810–2010, the way to achieve equality as one of the components of Latin American Constitutionalism is to expand participation and deliberation, but also to focus on strengthening democratic and constitutional institutions. Then he argues in favour of redesigning the representative system against hyper-presidential systems and lawyers taking care of social issues. Yet his arguments do not point out, as Marxist critique does, the need to re-politicise the market. In his arguments in favour of a deliberative model, he does not explicitly address the possibility that the market prevents the excluded from participating. He does not point out either whether in Latin American Constitutionalism it is possible to discuss or realise a re-politicisation of the market or debate the ownership of means of production. In a region with structural inequalities like Latin America, it is important that scholars make explicit statements about such alternatives. The scholars of the state-centric approach, then, focus on promoting more deliberative proceedings at the expense of questioning the de-politicisation of the economic model. Yet, in my opinion, Gargarella does not settle a frame related to substance: He does not determine which subjects to discuss in a deliberative model under the notion of the rule of people. Focusing on the recognition of the right to prior consultation as a proceeding does not imply giving real capacity of negotiation or self-determination to indigenous and Afro-descendant people.42 Moreover, neither of the two approaches to the legitimacy of the Court takes into account that recognising the right to consultation risks the appropriation of this right by other actors who provide Western standards to its content and does not necessarily guarantee the power of negotiation for indigenous people. From their descriptions on the right to prior consultation as a democratic tool or device for change, it seems they have seen the possibility that this right and the rules of the Court enhance domination in relation to the economic system. It is essential that the scholars of the two perspectives discuss more openly how democracy and transformation as grounds of the right to prior consultation work against claims that this right has been co-opted by global institutions like the World Bank, the

41 Gargarella, Latin American Constitutionalism. 42 There are different studies related from a democratic perspective that serves as basis for theorising on the democratic nature of the right to prior consultation in terms of representation and intermediation. These contributions have been made in sociology of political science fields. For example: Gisela Zaremberg, Valeria Guarneros-Meza, and Adrián Gurza Lavalle, Intermediation and Representation in Latin America: Actors and Roles Beyond Elections (Cham: Palgrave Macmillan, 2017); Zaremberg Gisela, Marcela Torres Wong, and Guarneros-Meza Valeria, “Deciphering Disorder: Participatory Institutions and Conflict in Megaprojects in Mexico,” América Latina Hoy 79 (2018): 103–124, doi:10.14201/ alh20187981102.

192  IACtHR as democracy-builder Inter-American Development Bank (IADB) and the International Council on Mining and Metals (ICMM). These institutions see the politics of extractivism of natural resources as crucial for anti-poverty policies, and recognise the right to consultation as part of their discourse of development towards economic activities, which in fact create more inequalities and rest on the idea of inclusion in the system.43 Scholars shall at least consider that consultation right does not necessarily entail an emancipatory potential, but is a device of status for companies and states that engage with the notion of corporate social responsibility. Focusing on procedural rules as a mechanism to overcome inequality and strengthen democracy does not necessarily ensure that people can discuss substantive issues related to the material conditions of their lives. It could also be argued that rights like consultation accompany new forms of accumulation rather than a solution to the problem of property and dispossession of land. The recognition of the property right may not be solved through consultation since it involves inclusion in an economic system of extractivism. The right to consultation entails that indigenous peoples are consulted about the way in which unavoidable extractivism must be undertaken and have the right to “participate” in the benefits of “development.”44 In that sense, this notion of procedural democracy (right to consultation) helps naturalise a de-radicalised model of democracy and human rights since they are framed to include the excluded in an economic model that understands development as subsistence. Furthermore, the procedure’s effectiveness depends on the organisational capacity of the groups in question, on their capacity to reject investment projects and eventually on their capacity to discard the use of prior consultation. The two discourses are ideological since they posit procedural rules as not serving any interests, such as those of lawyers, but as if they were not relational and situational to political and economic powers. In working in a way that favours a model of procedural democracy, constitutional and state-centric scholars reinforce the idea that solutions to issues such as poverty and inequality are ultimately to do with the effectiveness of proceedings. When the two legal strands embrace or accept the Court’s understanding on the right to consultation, they do not make explicit other alternatives that favour indigenous and Afro-descendant people. For example, one grounded on a more open notion of self-determination through a discussion not limited by the idea of inclusion in the current economic system may challenge the political economy and the dynamics of the market and extractivism. Not questioning the political economy reaffirms inequality as a necessary feature of our contemporary

43 Roger Merino Acuña, “The Politics of Extractive Governance: Indigenous Peoples and Socio-Environmental Conflicts,” The Extractive Industries and Society 2, no. 1 (2015): 85–92. 44 Roger Merino Acuña, “Coloniality and Indigenous Territorial Rights in the Peruvian Amazon: A Critique of the Prior Consultation Law,” in Bath Papers in International Development and Wellbeing (Centre for Development Studies), University of Bath, 2015, accessed October 15, 2021, https://www​.econstor​.eu​/bitstream​/10419​/128133​/1​/bpd38​.pdf.

IACtHR as democracy-builder  193 democracies. Then, affirming the right to prior consultation entails that the two perspectives accept the subtle violent dynamic of inclusion present in the legal and political terms through which the right to prior consultation has been designed.45 Embracing the image of the Court as a builder of democracy and transformation overlooks taking into account the real impact of the right to prior consultation. Scholars from social sciences document how other alternative methods, rather than the right to prior consultation, have helped indigenous people prevent extractive projects from being implemented. Such proposals shift the focus of attention away from the achievements of the Court and towards people as the primary agents of change. Overall, the two legal strands on the legitimacy of the IACtHR as a democracy-builder not only validate as natural a democratic model that sets apart the economic model as an object of democratic contestation. Their arguments about the right to prior consultation and its transformative impact mainly serve to position the IACtHR as the central agent providing solutions to economic and political problems. However, this image of the IACtHR entails a flaw of self-validation of the legal experts and judges as problem-solvers who rule from above and hold the last word concerning what democracy and equality mean. Throughout the dynamics of self-validation and self-interpretation of the IACtHR, the constitutional and state-centric scholars have also triggered people’s loss of their role as central agents who can redefine the scope and meaning of democracy and human rights according to their needs and circumstances. That role implies that they could eventually discard the current model of procedural democracy in favour of one that helps promote real transformation.

Conclusion This chapter has shown how the constitutional and state-centric perspectives on the legitimacy of the IACtHR address arguments related to its role as an agent promoting democracy through human rights protection. Democracy and human

45 Another critique to the two legal discourses on the legitimacy the IACtHR can be drawn from a class perspective (Marxian perspective). For example, it could be argued that the constitutional and the state-centric approach embrace politics of identity and overlook that these criteria limit and exclude other people who face problems of inequality. It would be necessary to create a unifying criterion such as class that jointly with categories as race and culture promotes equality in more egalitarian terms. The two legal strands working on the legitimacy of the Court should ask themselves if, rather than focusing on the protection of cultural identity of indigenous people and their democratic rights (based on identity), they could embrace a general criterion that protects all excluded people (agricultural workers and peasants, among others) who also face dispossession of land or problems related to the environment or their right to life. Focusing on the politics of identity and the multiplicity of forms of domination disaggregates the world into separate realities, and leaves intact the dynamics of a capitalist economic model based on free market and class exploitation. But focusing on the irreducibility of fragmentation denies that capitalism is unifying a social system shaping all identities and social relations. See the work of Chimni about a class approach to international law. B.S. Chimni, “Prolegomena to a Class Approach to International Law.” European Journal of International Law 21, no. 1 (2010).

194  IACtHR as democracy-builder rights are principles that ground the concept of ius constitutionale commune, which the two perspectives see the Court building through its case law. A core element discussed throughout the chapter is the concept of democracy that frames the profile of an agent of democratisation given to the IACtHR. The arguments that the scholars supporting both perspectives raise around the notion of democracy fit with and reproduce the understanding of the Court. They then, particularly the constitutional perspective, work as an instrument of self-interpretation for the decisions of the Court. When the state-centric and constitutional perspectives argue that the Court plays a role in promoting democracy, ideology and false contingency come into play. The ideological flaw is that they both use arguments shaped in terms of a unidirectional progress narrative cast by the liberal tradition. That account of progress is ideological because it encompasses the adoption and development of a specific meaning of the concept of democracy as if it were natural. By presenting the origins of that model of democracy as neutral, they assume that its adoption is a completely contingent event and that it is the only possible model to pass from a dictatorial government to a government of democratically elected authorities. They do not take into account the possibility of pursuing other types of democracy, such as one that pursues emancipation and is based on the rule of people. The chapter also pointed out that the scholars discussed here embrace a model of democracy that is always in a process of consolidation towards becoming a liberal democracy. This premise implies that both legal discourses always define our democracies as weak, infantile or mature. The problem is that consolidation refers only to the continuity of democratic elections, to widening the participatory or deliberative mechanism and to promoting equality of subsistence. This idea of consolidation risks focusing only on democratic proceedings as ends in themselves and not as possible means to allow the self-rule of people. By the same token, the fact that the two perspectives adopt a notion of democracy permanently consolidating electoral and deliberative procedures implies that they both distrust and discard the idea of democracy defined as the rule of people, requiring a quest for real equality. Likewise, adopting a procedural democracy means that the two approaches depoliticise key decision-making aspects of a political community, like the nature and basis of its economic model or political economy. In my opinion, the decisions of the Court and the two legal discourses are not truly transformative and do not actually point to the root causes of the structural inequality in the Latin American context, that is the political economy of the free market and extractivism, among other manifestations of transnational economic forces and classes (capitalism). In asserting that the IACtHR plays a role in building democracy, both discourses support to a higher or lower degree the necessity of international human rights judiciary performing as democracy-builder. Discussing the legitimacy of the Court as an agent of democratisation connects with the use of the constitutional analogy, introduced in Chapter 5. Attributing to the Court the role of

IACtHR as democracy-builder  195 agent of democratisation or connecting its work in human rights with democracy involves profiling legal professionals as the ones who know what democracy means, even when they work as IACtHR judges whose competence is the protection of human rights. In the same way, it profiles international judicial institutions as agents with a valid and necessary voice in the design and evolvement of democracies in the region. This cynicism is also present when they argue in favour of the legal discipline and judges as neutral actors bringing progress and change, while not recognising that law in itself is a discipline that entails political choice. Last but not least, as mentioned in Chapter 2, any approach that focuses on the transformative role of law cannot be seen as an end in itself. This book has explained how legal scholars and the Court have portrayed themselves as agents of change who know and apply a neutral human rights law. For both the statecentric and constitutional approaches, what matters is how an institution has promoted local democracy. Yet there is no mention of the role of people in transforming and reaching democracy and human rights through a different or oppositional perspective to what the Court or legal scholars think. In that sense, they are both top-down perspectives. The book rather calls for an approach that is more pragmatic (in terms of strategy) and that comes from below. When it argues for a “from below” perspective, it does not aim to focus on the implementation of Court decisions at the local level or look at how litigation as a tool for mobilisation will provide a different perspective to what the book has criticised. In contrast, the book calls for a perspective which recognises the limits of international law due to its direct link with the logic of free market and exploitation (capitalism), but that at the same time takes advantage of international law despite these limitations of content and form. This idea involves recognising that law is neither neutral nor indeterminate. It is thus also important to adopt a political perspective (a strategy) that asks whether and how international human rights law in its all forms (legal norms, jurisprudence and doctrine) in Latin America is linked to the politics of domination that stem from capitalism. Rather than focusing on the role of legal experts as agents of change in themselves, it is pivotal to start focusing on other subjects of international law, like oppressed individuals (in terms of class and identity), as the main actors promoting change and transformation. They should be the ones in charge of designing a strategy in which using law and international human rights bodies like the Court could help to advance more radical notions of democracy and human rights. In general terms, this chapter has criticised the tenets or arguments that constitute the basis of the concerns about the legitimacy of the Court as an agent of democratisation or democratic transformation. If those arguments are flawed by ideology and false contingency, the notion of legitimacy as a relevant question is also flawed by ideology. Prior to concern about the Court’s right to rule or moral reasons that portray it as an agent of democratic transformation, we must ask what kind of democracy and human rights the Court and legal scholars have embraced. If those notions are not really transformative, not radical enough to

196  IACtHR as democracy-builder pursue real equality and recognise the right of people to rule themselves, perhaps the concerns about the legitimacy of international human rights are not so relevant. On the contrary, these concerns could contribute to naturalising the idea that litigation at the international level is transformative. Indeed, since legitimacy is concerned with moral reasons justifying the Court’s authority, the fact that the Court is defined as an agent of democratisation is reason enough for the expansion of its competences regardless of states’ consent.

Conclusion

This book has raised a critique of Latin American legal scholars’ understanding of the legitimacy and authority of the Inter-American Court of Human Rights (IACtHR). The book had as a first goal to map the arguments of two competing legal-oriented perspectives—the state-centric and the constitutional—on the authority and legitimacy of the IACtHR. A second goal was to build a critical analysis, based on ideology as a method of critique, to dispute the arguments of those discourses. Mapping the premises, concepts and theories that ground their understanding has allowed me to question whether the state-centric and the constitutional perspectives on the legitimacy of the Court are in real opposition, as well as identify the ideological flaws that their similarities reproduce. A third goal of the book was to point out that there may be other potential alternatives of engagement with international human rights and democracy that detach from the focus given to the institutional protection the Court provides (from above), to be shaped as strategies from below. The book in itself offers an opening for further discussions with my Latin American colleagues. The following research questions with regard to the understanding of the authority and legitimacy of the Court underlie this book: 1. How does the legitimacy of the IACtHR arrive as a problem and object of study? 2. What kind of arguments, concepts and theories are involved in the notion of the legitimacy of the international tribunals and the IACtHR? 3. How do the constitutional and state-centric scholars drive the discussion on the legitimacy of the IACtHR on the discourse level? 4. How does the critical legal theory contribute to challenge the concept of the IACtHR’s legitimacy? 5. How does the critique of ideology—as a method of the Marxist tradition— contribute to building a critical analysis on the discourses on that legitimacy? The book has traced the understanding of the authority of the Court that grounds the two legal discourses on its legitimacy. In the first place, the book identified that the object of dispute between the two legal discourses was the legitimacy (the right to rule) of the Court to exert competences not recognised DOI: 10.4324/9781003200888-8

198 Conclusion by the ACHR. Those competences are related to ordering the modification of national legal legislation (control of conventionality), providing general effects to its decisions and ruling through a universalistic protection of rights rather than deference. While the constitutional perspective supports the activism and expansion of the Court’s authority, the state-centric perspective builds arguments that challenge its practice. In the study of both legal discourses, the book highlighted that the scholars who represent the two perspectives use three common elements to ground the profile of the Court—the constitutional analogy, the notion of subsidiarity (margin of appreciation) and the role of the Court as an agent of democratisation. These three common aspects work as devices that shape the Court’s authority as if it were a supraconstitutional tribunal and endorse the idea that the legitimacy— that is, the moral reasons that support the alleged constitutional authority of the Court—is an issue to discuss. While discussing the Court’s legitimacy, they construct arguments about the need to constrain (not invalidate) the expansion of its social mission, which extends beyond its dispute settlement jurisdiction to being an agent of change, with decisions that have general impact beyond the litigating parties in a particular case. The aforementioned commonalities revealed that although the two discourses seem to be in mutual opposition, they were not necessarily competing perspectives. In this respect, the critique of ideology was useful to identify the metaframework that informs the notion of legitimacy and authority of the Court. The notion of ideology helped argue that the discussions on the legitimacy of the IACtHR rest on and reproduce the logic of liberal constitutionalism. Since the arguments used by both legal perspectives are shaped by that logic, the conflict between them is only ostensible. They share important similarities and, eventually, only marginal differences on the justifiability of the expansion of the Court’s authority and activism. In a second level of analysis, the critique of ideology has been useful to argue that the notion of liberal constitutionalism that grounds the debates on the legitimacy of the Court has been naturalised and depicted as the only way to pursue progress, change and advancement on national and international levels. Here, the critique of ideology helps show that the constitutional framework used by the two legal perspectives is a tool of self-validation. In a third level of analysis, the critique of ideology has contributed to discussing the flaws of liberal constitutionalism in Latin America, with special focus on the notions of democracy and human rights that the two legal perspectives use in discussing the legitimacy of the Court. Discussing the ideological flaws of the notions of democracy and human rights leads to pointing out that the Court is not an agent for emancipation, but an institution that reproduces concepts of democracy and human rights that were shaped in a context of political and economic domination. The following sections summarise the key aspects advanced in this book. Sections 1 and 2 outline the identity of the actors involved in the development of two legal discourses on the legitimacy of the Court, and the use of the ideology as a method of critique. Sections 3, 4 and 5 articulate the findings about

Conclusion  199 the ideological flaws present in the two legal discourses when the scholars who support them use constitutional analogies, the notions of dialogue and margin of appreciation, and the role of the Court as agent of democratisation. Finally, Section 6 provides the author’s perspective on the Court’s legitimacy as a topic of study in the Latin America context.

1. The actors involved in the deployment of the two legal perspectives Analysing the arguments or tenets that ground the state-centric and constitutional perspectives entails identifying their proponents. As shown in this book, they are lawyers who work in the field of constitutional law, including some who serve as judges of the IACtHR. These lawyers constitute one epistemic community that engages with the project Ius Constitutionale Commune en América Latina (ICCAL) driven by the Max Planck Institute for Public and Comparative Law. The Instituto de Investigaciones Jurídicas of the Universidad Autónoma de Mexico is also involved in the development of the project, especially in its economic support of the publications related to ICCAL. The leading members of the community who support the constitutional perspective include Professor Armin von Bogdandy, Judge Eduardo Ferrer MacGregor, Judge Sergio García Ramirez and Judge Humberto Sierra Porto. Of the scholars supporting the state-centric perspective, Professor Roberto Gargarella and Assistant Professor Jorge Contesse are the most salient in terms of attempting to build a direct response to the arguments grounding the constitutional perspective.1 These actors interact in various common spaces such as conferences and seminars, while publishing books and articles that help shape the understanding of the Court as a pivotal agent of change and transformation of the Latin American region. The two legal discourses interweave with the IACtHR’s self-understanding of its authority and its legitimacy. As mentioned, the judges of the Court are also active participants in the activities carried out by the members of the epistemic community that builds the two perspectives. Then, the arguments that underlie the constitutional perspective, in particular, work as a device of self-interpretation for the Court. And while the scholars of the state-centric approach attempt to contest the arguments of the constitutional perspective, they actually reinforce its premises. The state-centric approach shares the same liberal constitutionalist framework, use constitutional categories to dispute the arguments of the constitutional approach and sometimes fail to respond to or remain silent before claims made by the constitutional approach.

1 Other scholars from Latin America and Europe, such as Pablo Contreras or Andreas Føllesdal, have developed arguments that fit with the state-centric perspective. However, they have not taken part actively in the activities organised by the Latin American scholars. Some of the work done by Contesse engages with the work of Føllesdal, however.

200 Conclusion

2. Ideology as a method of critique The arguments that have been addressed against the two discourses engage with the legal Marxist approach to international law. Specifically, the method of ideological critique has been the driving concept used to show that the two legal perspectives share similarities in their understanding of the legitimacy of the Court. In this book, ideology is concerned with “the ways in which meaning serves, in particular circumstances, to establish asymmetrical relations (relations of domination).”2 This concept helps show how the notions of ius constitutitonale commune, democracy and human rights that underlie the commonalities shared by the two legal perspectives—constitutional analogy, subsidiarity and democratisation—are ideological and ground relations of domination. Ideology in this book is not related to falsehood or lack of awareness. In contrast, it can be defined as cynicism and it operates in terms of practice, not error. That implies that one knows the “particular interests hidden behind an ideological universality, but still one does not renounce it.”3 If there is unawareness, it resides in the way in which the actions of people help perpetuate the asymmetries of the social reality. The ideological strategies deployed as the legal scholars of both perspectives build their arguments are manoeuvres of naturalisation, reification, dissimulation and others. Working with ideology based on the idea of meanings as a tool of domination also fits with the notion of false contingency. As described in the book, this notion works in tandem with that of false necessity, which attempts to overrule the problem of determinism of history. False contingency helps us understand that even when history is a social product and can be remade in different ways, the possibilities are framed by circumstances. Thus, the notion of false contingency helps us understand that the contents or meanings in the two legal perspectives are not contingent; in contrast, they are shaped by the political, historical and social context. This book is grounded on the idea that the contents given to notions such as ius constitutionale commune, democracy and human rights are not indeterminate. They have been shaped, if not entirely, through consensual methods in a context of asymmetrical relations between the hegemonic power of the region, the United States and the Latin American states. As mentioned above, ideology as a method of critique has worked in three different ways: ●●

●●

To make evident the meta-framework of liberal constitutionalism that grounds the two discourses on the legitimacy of the Court. To show how this notion of liberal constitutionalism has been naturalised as synonym of progress and evolution that is driven by judges and legal experts.

2 Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford: Oxford University Press Incorporated, 2003). 3 Slavoj Zizek, The Sublime Object of Ideology, The Essential Zizek (London: Verso, 2008), 29.

Conclusion  201 ●●

To discuss the ideological flaws of the concepts of democracy and human rights employed in liberal constitutionalism. Because of the flaws of those concepts, it was possible to question the arguments that depict the role of the Court as an agent of change and emancipation.

3. Constitutional analogy: On the existence of a ius constitutionale commune Overall, the constitutional analogy has been a recurrent instrument in the international legal field to provide flexibility for the interpretation of international instruments and justify the informal expansion of competences of international institutions such as the ILO, UN and World Bank. As shown in the book, the expansion of competences has shaped not only the authority of international institutions but also the understanding of the notion of a modern state at the local level. In the same vein, the field of global constitutionalism rests on the use of constitutional analogies that help justify the existence of a material constitution encompassing universal values that inform the dynamics of the international arena, the local arena and state practices. The constitutional analogy has constitutive effects on what the Court and the scholars supporting the legal discourses understand about our reality and the Inter-American System of Human Rights. Those constitutive effects work in three spheres. Firstly, the constitutional analogy is a tool that helps profile the ACHR and other sources of international law (ius constitutionale commune) as constitutional instruments that are objects of flexible interpretation to create new non-ACHR-recognised competences for the Court or justify an evolutive interpretation of human rights. Secondly, its use shapes the understanding of the Court as a supraconstitutional tribunal. Thirdly, it naturalises a model of constitutionalism with emphasis on rights protection, democracy and judicial activism that reproduces the paradigm of Western liberal constitutionalism.

3.1.  Ius constitutionale commune created by judges The book demonstrates that the notion of ius constitutionale commune is a clear example of the use of constitutional analogies in international law. This notion reunites elements of global constitutionalism with aspects of Latin American constitutionalism. As shown, the ICCAL project has strong connections with the work of Bogdandy on the democratic legitimacy of adjudication and international public authority, which is based on principles of global constitutionalism, global administrative law and legal institutionalism. Likewise, scholars use some of the features of Latin American constitutionalism such as emphasis on the recognition of rights and the power of judges as lawmakers to inform the notion of ius constitutionale commune. In the view of the constitutional perspective, ius constitutionale commune could be defined as a sort of Inter-American constitution that encompasses the common values and principles that inform the national legal orders of the Latin American states. The scholars who support this perspective argue that these

202 Conclusion common values are a normative or meta-framework that has direct impact on the national legal orders, and ground the authority of the Court to exert competences such as the control of conventionality and the general effects of its decisions. Scholars of the state-centric approach do not deny the existence of the ius constitutionale commune and even agree with the constitutional perspective on the contents of the values and norms that build it, such as low-intensity democracy and human rights of subsistence. Using the notion of ius constitutionale commune triggers a discussion on the role the IACtHR plays with regard to its contents. This is because both perspectives profile the Court as if it were a constitutional tribunal that shapes the contents of an Inter-American constitution. While the constitutional perspective supports the idea that the Court has last say on human rights and democracy, the state-centric approach contests the authority of the Court with arguments that mirror the debate concerning national-level judicial review and its countermajoritarian role. Moreover, the state-centric approach does not deny that the IACtHR plays a role in building the standards of a ius constitutionale commune. It supports the idea of self-restraint of the Court when it rules on cases and defines the contents of the ius constitutionale commune, and engages with the idea of dialogue among judges. As shown in Chapter 5, the concepts that stem from the case law of the Court, such as the general effects of its decisions, its power to exert control of conventionality or its authority as ultimate interpreter, are reinforced by the arguments driven by the scholars of the two legal discourses. They both have contributed to spreading the idea that the Court and, eventually, the local judiciaries build the contents of a ius constitutionale commune in the region. In the end, the two discourses focus on the role of legal experts, either to justify their authority or to argue in favour of a more controlled or less aggressive deployment. Chapter 5 provided arguments that demonstrated that none of these scholars have imagined alternative understandings that involve other possible actors (such as citizens) building a ius constitutionale commune that represents “all” and not just the knowledge of legal experts. Moreover, none of their arguments take into account that the unity stemming from the notion of ius constitutionale commune could hide or obscure ongoing projects driven by hegemonic structures. From the debates that the two perspectives engage with, one can conclude that they both depict the ius constitutionale commune as a product of the judiciary. They are both silent on the possibility that their understanding of human rights and democracy are de-radicalised products of relations of hegemony and domination.

3.2. Liberal constitutionalism: human rights and democracy as part of the ius constitutionale commune As shown in Chapters 5 and 6, the use of the constitutional analogy implies that the contents of the ius constitutionale commune are informed by the paradigm of constitutional liberalism, which in the Latin American context means a model of

Conclusion  203 low-intensity democracy (a set of rules for periodical elections) that de-politicises the economic aspect of social life. This notion of democracy is complemented by a notion of human rights that conveys a politics of fatalism and equality subsistence. The Court, the constitutional approach and the state-centric approach all share the same understanding of these principles, and describe them as apolitical or contingent. The apparent objectivity of the contents of the ius constitutionale commune obscures the fact that they have been shaped in a context in which the United States dominated the region and deployed a strategy of promoting democracy to secure the development of capitalism. More concretely, the two perspectives fail to recognise a connection between the US policy of supporting dictatorial governments in Southern Cone countries such as Argentina, Uruguay, Paraguay and Chile and the policy encouraging democratic transition that started in the late 1980s. As mentioned in Chapter 6, the lack of connection between these two strategies ignores the fact that US support for dictatorships aimed to demobilise radical political forces in local spaces. Once these forces of Latin American countries were controlled, and the dictatorial governments entered into crisis, the United States decided to start a process of democratisation according to its interests. The two discourses are flawed in terms of ideology and false contingency because the concept of democratisation that they use to frame their arguments is depicted as a natural process that occurred regardless of or without the influence of the region’s hegemonic power. Moreover, the arguments of both perspectives engage with a narrative of progress and evolution that profiles the procedural model of democracy as one example of advancement in opposition to dictatorial governments. Embracing a procedural democracy represents passing from darkness to enlightenment, from disorder to order. Once the scholars of two discourses engage with the procedural model of democracy as if it were the only avenue to follow, they rule out the possibility of discussing different understandings of democracy, such as democracy as rule of people, or other alternatives that re-politicise the economic system. As a consequence, the two perspectives engage with the idea of consolidating the procedural model of democracy and profile the Court as an agent of that consolidation process (democratisation). The advancement or progress in human rights protection and democracy that the two discourses engage with can be read as strengthening a de-radicalised understanding of those concepts. Moreover, their engagement with the concept of ius constitutionale commune and its elements of low-intensity democracy and human rights of subsistence validates the concentration of power in the IACtHR, since it holds the power to shape the contents of the ius constitutionale commune.

4. Dialogue, margin of appreciation and subsidiarity Judicial dialogue is another commonality present in the work of the scholars driving the state-centric and constitutional perspectives. The notion of dialogue obscures the hierarchical nature of the relationship between the Court and the

204 Conclusion states, more concretely the local judiciary. For instance, while the scholars supporting the constitutional approach describe the relation between the Court and local judges as horizontal, their academic work also validates the idea that the Court holds the last word on human rights protection in the region. In this respect, their arguments are contradictory and reproduce dynamics of monism. This monist approach is also evident when they show reluctance about the idea of implementing a notion of margin of appreciation, since in their view the cases resolved by the Court do not provide any room for the deployment of that doctrine. Similarly, the state-centric perspective engages with the notion of dialogue when it argues in favour of a margin of appreciation, or states that the Court deploys a monologue. The solution these scholars provide for improving dialogue involves conversation among judges, with the international and national judiciary defining the content of rights. In that sense, they reinforce the idea that the content of human rights is defined by an elite, validating a top-down perspective in which legal experts shape our reality. Moreover, the margin of appreciation provides support to the idea of the existence of a ius constitutionale commune shaped by judges. The margin of appreciation that the state-centric approach proposes reinforces the idea that the judiciary is the entity that measures which states boast a better consolidation of democracy and deserve trust. Indeed, the state-centric approach accepts as valid the fact that standards of deference necessarily have as a meta-framework the Court’s understanding of rights and democracy, that is, one in which the ideal model is a liberal constitutionalism that de-radicalises those principles. This understanding of the margin of appreciation implies that judges (legal experts) shape the world, shape what we know about human rights protection and democracy. As members of an elite that reproduces contents and meanings shaped in a context of asymmetrical relations, their judgments are the product of relations of domination in the region. As the two discourses address the notion of dialogue, or margin of appreciation, the understanding of rights and democracy driven by the Court becomes problematic. Dealing with the authority and legitimacy of the Court implies reproducing notions of low-intensity democracy and human rights of subsistence that constitute the meta-framework of their debates.

5. On the role of the Court as an agent of democratisation The book challenged the image of the Court as an agent of democratisation and therefore of transformation. Firstly, the understanding of transformation followed in this monograph is opposed to the one that the two legal discourses and the Court engage with. The idea of transformation embedded in the two perspectives and the Court’s approach seems to be the process of consolidating a model of procedural democracy. This notion of transformation serves to maintain relations of domination between ruling classes and the excluded, or between the hegemonic states in the region and the subjected states.

Conclusion  205 To be sure, none of the scholars portray their ideas as reproducing a procedural model of democracy. Instead, they engage with the premises of inclusion and substantive equality as complementing democracy as a set of procedural rules. This understanding of democracy presents itself as a process of consolidation. For these scholars, having a set of institutions and proceedings is the first step in transitioning to democracy after dictatorships. Moreover, they have adopted the idea that after the stabilisation of democratic proceedings, democracy must be consolidated. As demonstrated, the state-centric and the constitutional perspective do not deviate from the Court’s grasp of democracy, that is, representative democracy linked with participation and protection of human rights such as equality. To achieve democratic consolidation, the scholars of both perspectives argue that equality in substantive terms is the key principle to pursue. Scholars who represent the constitutional perspective argue in favour of a notion of equality that pursues the recognition and inclusion of vulnerable groups to achieve the development of democracies. Those who represent the state-centric approach describe the Latin American political context as one of consolidation in which states have stabilised electoral proceedings and democratic institutions, but that still have as a challenge the struggles for recognition and equality of certain disadvantaged groups. The constitutional perspective supports an activist performance of the Court with regard to the protection of vulnerable groups with specific identities; for example, one in which the Court provides general effects to its decisions or even the direct protection of these groups’ social rights. The state-centric approach either supports the protection of vulnerable groups but with the application of the doctrine of deference, or argues in favour of deliberative proceedings oriented towards the inclusion of the vulnerable groups in decision-making processes. Overall, the two perspectives engage with the idea that Court case law is a device to confront the problems of inequality in the Latin American democracies that are consolidating. With different degrees of intensity, scholars who represent both perspectives support the Court’s role, and eventually its activism, as important for overcoming the structural inequalities affecting people in Latin American countries. In that sense, they reinforce the Court’s understanding of the concepts of democracy and human rights, but also its self-understanding as an agent of transformation. Thus, both perspectives are involved in the dynamics of self-interpretation of the Court. The problem of supporting inclusion as the only core elements of equality is that neither the Court nor the scholars challenge the real cause of the structural inequalities in the region, that is, the entrenchment of capitalism. The Court and the two legal discourses thus embrace a human rights of fatalism, helping to avoid violence and supporting subsistence to mitigate exclusion. Moreover, in the view of the Court and the two perspectives, the protection of the rights of indigenous and Afro-descendant people is all about including them in the economic and political model of capitalism, but not in terms of self-determination. This means that, in real terms, recognising rights like prior consultation or benefit-sharing can disempower people instead of challenging

206 Conclusion the consequences of capitalism, such as exclusion and structural inequalities. Taking into account the problems in the Court’s and the scholars’ understanding of equality, perhaps we should engage with other criterion, such as class, that together with other battles such as the one of identity gives people the chance to create real equality, or to discuss and take decisions with regard to property, means of production, the market and other elements that constitute the basis of capitalism.

6. On the legitimacy of the Court In the understanding of the constitutional and state-centric approaches, the Court has been crucial in protecting the human rights of the victims of the Latin American dictatorships and continues to play a role in a context of democratisation or consolidation. Indeed, as demonstrated, the scholars of both perspectives accept, to different degrees, the informal expansion of the Court’s authority. The consequence of depicting that informal expansion as positive—because it protects human rights or because it corresponds with the more complex architecture of international law—is a need to start developing arguments related to the legitimacy of the Court as an object of study. However, the book has shown the ideological problems involved in the deployment of arguments that ground the discussion of the Court’s legitimacy. In general, the constitutional analogy, the margin of appreciation and dialogue and the notion of the Court as an agent of democratisation build an image of a supraconstitutional tribunal with the last word on human rights protection and democracy as elements of a ius constitutionale commune created by judges. In this respect, it is essential to reconsider whether it is useful to discuss the legitimacy of the Court in the terms used by the two perspectives. Once we discuss the Court’s legitimacy, we adopt a paradigm of progress in which the growth of international institutions is necessary for local spaces. In being concerned about the legitimacy of the Court, we provide arguments that validate the fact that legal experts shape our realities. More concretely, studying the legitimacy of the Court becomes a tool of self-validating the role of experts, and looking for standards or criteria for legitimacy becomes an end in itself. As a result of discussing legitimacy, legal scholars contribute to the disempowerment of people to define, shape and imagine a different understanding of human rights and democracy. Regarding the notion of people as the subject that should have the power to reimagine the understanding of rights and democracy, it is important to point out that “the people” is a sometimes fluid concept, often used to legitimise populist policies both left and right. An ordinary dictionary definition states that “the people” refers to the “the commonality as distinguished from the titled, the learned; the populace.”4 In this book, the people as a concept refers to those who have

4 The New International Webster’s Comprehensive Dictionary of the English Language (Naples, Florida: Trident press international, 1996).

Conclusion  207 no special power or privileges, those who are subjects of oppression. As such, it is a term partly defined by opposition to “the privileged,” where it can both be unclear exactly who the privileged are, and to what extent “the people” form a unity in itself. Providing clarity on these issues would necessitate a more thorough analysis of class, identity and power structures in modern Latin America, which is outside the scope of this book. If the concept of “the people” is still too generic for readers, the term is still necessary since the “will of people” is a core element of the notion of democracy. If we renounce the notion of people as the subject central to democracy or the design of battles for human rights, we would lose the sense and the radical nature of these concepts. Talking about democracy or human rights without reference to the people would mean taking these notions as descriptive terms for liberal societies as they are today. Thus, democracy would appear as a set of rules and procedures, and again one would end up discussing on the consolidation of those rules, repeating a model of low-intensity democracy, while the oppressed remain excluded and subjected to the domination of rules imposed by hegemonic powers. Another consequence of engaging with the current understanding of the legitimacy of the IACtHR is accepting the dynamics of domination imposed by the hegemonic economic and political forces that rule the Latin American region. The legal experts surrounding the Court represent an elite that adopts and reproduces the understanding of democracy and human rights that accompanied the US policy of democratisation during the 1980s. Thus, legitimacy as an issue of study helps strengthen a de-radicalised notion of human rights and democracy that reproduce asymmetrical relations of power, and in turn exclusion and misery. This argument does not rule out the fact that the local elites and social movements have also played, to certain extent, an autonomous and important role in the understanding of human rights, democracy and constitutionalism that we adopted in Latin American countries in the 20th century, or that there is a tradition of constitutional liberalism in the region that finds its roots in our colonial past. It only remarks on the relevance of the fact that the local political struggles for democracy and human rights in the 1980s took place amid asymmetrical international relations in which the United States used consensual methods to promote a model of democracy and human rights that accommodated its interests and those of capitalism. The constitutional lawyers in Latin America might tell that now is not the time for critique. They could point out that currently we face different crises, such as authoritarianism in Venezuela that has forcibly displaced Venezuelan citizens to neighbouring countries, as well as the rise of right-wing conservative governments in Brazil and the United States. They might tell that, instead of questioning, we need to engage with the fragile understanding of democracy and human rights that informs the Inter-American System of Human Rights and our local spaces, we must shore up the IACtHR and its role in protecting human rights. However, it is important to take the chance to expose, not hide or reinforce the flaws present in the self-understanding of the Court and the self-interpretation that the two scholarly perspectives deploy. Perhaps what we take for granted as

208 Conclusion necessary for the advancement or change of Latin American reality needs to be abandoned for an alternative, transformative strategy. Highlighting the problems stemming from studying legitimacy should not be taken as an argument against international human rights or the existence of a court that protects them. Indeed, the Court could play a role in the region, but that its function is contingent and should be subjected to strategies from below, designed by people. In this ideal landscape, the Court would not be the leader that builds the contents of a ius constitutionale commune, but an actor that, depending on the circumstances of local political struggles driven by people, could contribute to strategies shaped in our local spaces. If we convey that human rights are a political language and democracy is the rule of people, we can build an alternative meaning for them, one that engages with real transformation, that challenges all types of domination, especially that stemming from capitalism. However, that alternative meaning of human rights and democracy must be informed by our local circumstances and should rest on structural goals that allow change. Our reality and structural long-term goals, shaped from below, should be the core element that shapes our understanding of those concepts. We the people should be able to reimagine them in order to fight the naturalisation and reification of the politics of fatalism, equality of subsistence and the de-politicisation of the market. Perhaps, Latin American lawyers involved in the deployment of the legitimacy discourse could adopt another type of engagement with the realities of our countries, rather than with only securing the status of an institution that is ultimately a weak agent for promoting change. Latin American lawyers should also be aware that we easily fall into the trap of seeing law and its institutions as ends in themselves. Maybe we should start understanding that the use of international law and international institutions has to be tamed by the logic of opportunism. Perhaps we should step back to understand that law has contributed and contributes to promoting a domination of experts and of economic and political powers, even when it seems that we work on behalf of justice or the excluded. Depending on the circumstances and opportunities that surround us, we can elaborate strategies and tactics that make international law serve real equality, that makes law a useful tool for those below. Our enterprise of supporting real transformation and emancipation must be accompanied by the exercise of selfcritique. We must always re-examine our purposes and the goals of the battles that we take as granted or make our own. Finally, the weaknesses, gaps and eventual contradictions of this book reflect just a stage of the author’s work, not yet complete, still “in progress.” As Paul Valéry states: A work is never completed except by some accident such as weariness, satisfaction, the need to deliver, or death: for, in relation to who or what is making it, it can only be one stage in a series of inner transformations.

Index

ACHR see American Convention of Human Rights African Court of Human Rights 16 Almonacid Arellano v. Chile 74, 75, 84, 86 Aloeboetoe et al. v. Suriname 79 American Convention of Human Rights (ACHR) 1–2, 5, 16, 19, 34, 58–61, 65, 68–69, 68n19, 75–78, 79n69, 85–90 American System of Human Rights 62–90, 69n22 analogy: constitutional 6, 141–142, 147–153, 201–203; as tool of flexibility 172 Andean Tribunal of Justice (ATJ) 93–94 Artavia Murillo v. Costa Rica 88, 115 Atala v. Chile 117 ATJ see Andean Tribunal of Justice Bámaca Velásquez v. Guatemala 81 Barrios Altos v. Peru (2001) 2, 75–76, 85, 89 bloc of constitutionality 101n41 bloc of conventionality 101–103 Boyce v. Barbados 85 Bulacio v. Argentina 120 Cabrera García and Montiel v. Mexico 85 capitalism 6, 47 Castaneda Gutman v. Mexico 177 Chitah Ney v. Guatemala 81 CLS see critical legal studies Cold War 10 consensus-building process 180 constitutional analogies 6, 101–103, 141–142, 147–153, 201–203; in international law 147–153; Ius

constitutionale commune 154–162; and legitimacy of Court 153–170; during Second World War period 150n52 constitutional approach, legitimacy of IACtHR 91, 95–114; bloc of conventionality 100–103; control of conventionality 84–90, 105–107, 118, 162–167; Corpus Juris 100– 103; Court’s public authority and transnational democratic grounds 107–109; democratic transformation 111–114; dialogue 103–105; drivers of 95–97; international law, constitutionalisation of 97–100; reluctance vs. acceptance 110–111; subsidiarity 103–105 Constitutional Court v. Peru 177 constitutionalism 97–100 Contesse, Jorge 2, 117–119, 127–130, 135, 137, 171, 179, 182, 199 contingency 54n103 Contreras, Pablo 110, 115–116, 127–128, 130 control of conventionality 84–90, 105–107, 118, 162–167 Corpus Juris 86–88, 87n103, 100–103 Court 3–5; as agent of democratisation 204–206; competences of 6; as constitutional tribunal 6; functions of 6; legitimacy of 92–95, 206–208; and local judiciaries/authorities 6; public authority 107–109; self-interpretation for 5; as supraconstitutional tribunal 6, 118–121; transnational democratic grounds 107–109; as ultimate interpreter 118–121 critical legal studies (CLS) 3, 36, 39–45, 58–59 

210 Index critical legal theory 36–37, 37n8 critical race theory 36 Critique of Cynical Reason (Sloterdijk) 51 democracy 6, 11–16, 12n20, 194; distrust over majorities in 184–186; false contingency of 179–181; IACtHR as builder of 175–179; ideology and 184–186; and IHRB 17; as journey 181–184; naturalisation of 179–181; procedural 179–184; in state-centric model of legitimacy 121–124; and substantive equality 187–193; threats to 12–13 democratic legitimacy 7, 126, 132; of adjudication 25, 201; court and 124–125; democratic state as source of 109; of IACtHR 8, 92, 175–179; of IHRB 7–8, 24–33; of international adjudication 136; of international public authority 201; of international tribunals and courts 24, 168; of legislation 121–122; principle of transnational democracy 24, 107– 109, 167–170 democratic transformation, IACtHR 111–114 determination 47n66 dialogue 103–105, 116–117, 162–167, 203–204 domestic reparation programmes (DPR) 81 DPR see domestic reparation programmes ECHR see European Convention on Human Rights ECtHR see European Court of Human Rights The Eighteenth Brumaire of Louis Bonaparte (Marx) 53, 55 epistemic community 92–93, 135n8 equality 6, 187–193 erga omnes 101–102 Eslava, Luis 37, 38n14 estado de cosas inconstitucionales 105n61 European Convention on Human Rights (ECHR) 16–17, 26n91; activism/performance of 20; criticism of 17–18; judgments 17–18 European Court of Human Rights (ECtHR) 16 exploitation 57n119

false contingency 54–58, 57n119, 61; of democracy 179–181; Marxism, legal 54–58; state-centric vs. constitutional discourses 146–170 false necessity 54–58 False Necessity (Unger) 54–55, 55n105 Feminist 36 Ferrer Mac-Gregor, Eduardo 2, 85, 101, 107, 136, 156, 171, 186, 199 Frankfurt school 36 García Lucero v. Chile 81 García Ramirez, Sergio 84, 136, 155, 171, 199 Gargarella, Roberto 2, 114–115, 121–124, 127–131, 135, 137, 163, 170n125, 171, 176, 181, 184–186, 190–191, 199 Gelman v. Uruguay (2011) 1–2, 19, 74–75, 88, 121, 123, 143–144, 186 The German Ideology (Marx and Engels) 53 global constitutionalism 97–100, 157n75 Gomes Lund et al. v. Brasil 74, 86 Gonzales Lluy v. Ecuador 77 Görgülü judgment 19 Granier and others (RCTV) v. Venezuela 123 Guatemalan Amnesty Law (Bill 5377) 83 Hernández, Diana Patricia 124, 125 Hirst II v. UK 17 human rights 1, 11–16; IACtHR (see Inter-American Court of Human Rights); IHRB (see international human right bodies); IHRJB (see international human rights judicial bodies); threats to 12–13 IACtHR see Inter-American Court of Human Rights IADB see Inter-American Development Bank ICCAL see Ius Constitutionale Commune en América Latina ICJ see International Court of Justice ICMM see International Council on Mining and Metals ICs see international courts ICTY see International Criminal Tribunal for the former Yugoslavia ideologies 5, 49n76, 52n90, 58–61, 174–196; as cynicism 51; definition

Index  of 48–49; as dissimulation 53; of domination 54; as fragmentation 53; IACtHR as democracy-builder, critique to 179–196; law and 49, 49n78; of legal Marxism 48–54; legal profession and 51; as legitimation 52; Marks’s on 51–54; as method of critique 50, 200–201; political 49; as reification 53; state-centric vs. constitutional discourses 146–170; Thompson’s critical approach to 52; as unification 53 IHRB see international human right bodies IHRJB see international human rights judicial bodies IMF see International Monetary Fund imperialism 37, 47 Inter-American Commission of Human Rights 5 Inter-American Court of Human Rights (IACtHR) 1–5, 7–9, 16, 18–19, 62–131, 69n22, 178n13, 197–208; activism/performance of 20; actors 199; compliance, supervision of 82–84; constitutional approach to legitimacy of 91, 95–114; control of conventionality 84–90, 105–107, 118, 162–167; as democracy-builder 174–196; general effects 84–90; holistic reparations 78–82; InterAmerican Corpus Juris 87–90; Inter-American System of Human Rights and 65–90, 117; legitimacy of 7–20, 58–62; and local democracies 114; Marxian perspective 193n45; performance/practices of 69–84; social rights protection 76–78; statecentric local democratic approach 91–92, 114–131; uniform standards of human rights contents, creation of 74–76 Inter-American Development Bank (IADB) 192 Inter-American System of Human Rights 4–5; IACtHR and 65–90, 117 international adjudication 4, 133–136, 156–158, 167–169, 169n123 International Council on Mining and Metals (ICMM) 192 International Court of Justice (ICJ) 43–44 international courts (ICs) 14–15, 14n32

211

International Criminal Tribunal for the former Yugoslavia (ICTY) 43–44 international human right bodies (IHRB) 7, 16–17; authority/ competence of 16; as constitutional tribunals 17, 30–33; as democracy builders 17; legitimacy of 7–33; normative approaches to legitimacy of 25–33; normative legitimacy 22–24; state-centric model of legitimacy 25–30 international human rights judicial bodies (IHRJB) 16–20; ACHR 16; African Court of Human Rights 16; ECHR 16; ECtHR 16; IACtHR 16, 18–19 The Internationalists: How a Radical Plan to Outlaw War Remade the World (Hathaway and Schapiro) 9 international law 8–20; ascending pattern in 41–42; Bolshevik approach to 45; CLS on 36, 39–45; during Cold War 10; constitutional analogy in 147–153; constitutionalisation of 97–100; descending pattern in 41–42; IHRJB, rise of 16–20; imperialism and 37; indeterminacy of 42–43; legal institutions 10–16; legal Marxism 36, 45–58; liberal values 10–16; mystification of 44; narrative 10–16; New Stream movement of 39–42; obligation in 41; progress of 8–20; regionalism in 38; self-validation 44–45; structure of 40–42; substance of 47; transformation 9 international lawyers 16n43 international legal institutions 10–16 International Monetary Fund (IMF) 13, 13n26 international society 10–11 international tribunals 30–33; democratic legitimacy of 24; legitimacy, constitutional approach to 30–33 in vitro fertilisation (IVF) 88–89 ius constitutionale commune 6, 95–98, 141–143, 154–162, 154n62, 174–193 Ius constitutionale commune en América Latina (ICCAL) 2, 95–97, 111–117, 154–162, 154n62, 174–193, 199 IVF see in vitro fertilisation

212 Index judges 16n43; of constitutional tribunals 92–95, 92n5; role of 92–95 jus cogens norm 40, 74, 74n50 Kennedy, David 5, 39 Kennedy, Duncan 39, 49 Koskenniemi, Martti 5, 39, 42 La Cantuta v. Peru 76, 89 The Last Temptation of Christ 79, 79n69, 85 Latin American Constitutionalism 1810–2010: The Engine Room of the Constitution (Gargarella) 190–191 Latin American constitutional tribunals 1 Lautsi v. Italy 17 The Laws of Peoples (Rawls) 11 lawyers 16n43 left wing 71–72 legal Marxism 4–5 legal scholars 92–95 legitimacy: of Court 92–95, 206–208; crisis of 8–20; definition 21; and democratic transformation 146; of IACtHR 8–20, 58–61, 91–131; idea of 8; of IHRB 8–33; of international tribunals, constitutional approach to 30–33; margin of appreciation and 144; normative 22–24, 22n71; as problem-solving perspective 35; sociological 22n71; statecentric model of 25–30, 91–92, 114–131; see also democratic legitimacy liberalism/liberalisation 10–12; constitutional 141, 202–203, 207; economic 12–13; international 7, 10–12, 56, 132; in international law 39–44; market 12n20, 13; morality of 12; political 11 liberal states 11, 11n14 liberal values 10–16 Lorca, Arnulf Becker 38 margin of appreciation (MoA) 110–114, 203–204; legitimacy and 144; to protect decision-making procedures 184; state-centric model of legitimacy 125–129; state-centric vs. constitutional discourses 142–143 market liberalisation 12n20, 13 Marks, Susan 5, 51–52

Marxism, legal 36, 39, 45–60; false contingency 54–58; ideology of 48–54; Soviet Union’s scholars 45–46 Massacres of Black River v. Argentina 115 Max Planck Institute 95–97 Mestizo International Law (Lorca) 38 Mieville, China 46–47 MoA see margin of appreciation Montiel v. Mexico 86 MSS v. Belgium 17 Müllerson, R. A. 46 mystification 44 NAIL see New Approaches to International Law National Endowment for Democracy (NED) 180 National Security policy 71n30 NED see National Endowment for Democracy neo-constitutionalism 98–100 Neumann, Franz 36 New Approaches to International Law (NAIL) 36 New Stream movement 39–42 new tribunalism 15 Nicaragua v. United States of America 43 non-liberal state 11n14 normative legitimacy, IHRB 22–24, 22n71; approaches to 25–33; democratic approach to 24; principles of justice/democracy and 23; process 22; results-oriented justification 22; source 22; standards of 23–24 OAS see Organization of American States Obregón, Liliana 37–38, 38n17 Olmedo-Bustos v. Chile 79 Operation Condor (US policy) 180 Organization of American States (OAS) 16 Pashukanis, Evgeny 45–46 peace 11–16 phantom theory 137 Porto, Humberto Sierra 136, 199 Prebisch, Argentinian 37n8 principle of liberty 41; see also liberalism/liberalisation principle of subsidiarity 117–118 profile 162–167 proliferation of tribunals 13–15, 14n33

Index  public authority, Court’s 107–109 Purvis, Nigel 41, 43–44 reification 172 res interpretata 102 responsibility to protect 12–13 The Riddle of All Constitutions (Marks) 5, 49 Río Negro Massacres v. Guatemala 80, 83, 87 rule of law 40 Saramaka v. Surinam (2007) 113, 187–188 self-amnesty laws 74 self-interpretation 5, 136 self-referentiality 45 self-understanding 5, 136, 171 self-validation 44–45, 58–60, 136, 171 sociological legitimacy 22n71 sovereignty 121–124 state-centric model of legitimacy: vs. constitutional discourses 132–173; Court and its democratic legitimacy 124–125; Court as supraconstitutional body 118–121; democracies 121–124; democratic transformation at local level 129– 131; dialogue 116–117; drivers of 114; of IACtHR 91–92, 114–131; of IHRB 25–30; ius constitutionale commune in Latin America 114–117, 154–162, 154n62; margin of appreciation 125–129; principle of subsidiarity against supranationalisation 117–118; sovereignty 121–124 state-centric vs. constitutional discourses 132–173; actors, analysis of 135–140; constitutional analogy 141–142, 147–153; control of conventionality 162–167; democratic transformation 143–146; dialogue 162–167; false contingency 146–170; ideology 146–170; international law,

213

constitutional analogy in 147–153; legitimacy of Court, constitutional analogies and 153–170; on legitimacy of Court 133–134, 153–170; margin of appreciation 142–143; profile 162–167; similarities as disagreements in 140–146; subsidiarity 142–143; supraconstitutional tribunal 162–167; transnational democracy vs. indirect democratic grounds 167–170 state consent model 15 status quo 49 subsidiarity, principle of 6, 103–105, 117–118, 203–204 Tádic case 43 Tenorio Roca and Others v. Peru 81 Third World Approaches to International Law (TWAIL) 36 Tibi v. Ecuador 84 transnational civil society networks 11n18 Trindade, Cançado 110 Tunkin, Gregory 45 TWAIL see Third World Approaches to International Law Tzoulava, Nina 48 UNEF see UN Emergency Force UN Emergency Force (UNEF) 150n52 Urueña, Rene 37 Uruguayan amnesty law 122 Velásquez Rodríguez v. Honduras 118, 120 von Bogdandy, Armin 2, 31–32, 95–97, 99, 101, 108–109, 121, 134n6, 156, 158n77, 168–171, 169n123, 179, 181, 199 World Bank 13, 13n26 Yatama v. Nicaragua 85–86, 177 Žižek, Slavoj 48, 51, 57, 138n22