1st Edition
The Inter American Court of Human Rights The Legitimacy of International Courts and Tribunals
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.
INTRODUCTION
CHAPTER 1: A GENERAL FRAMEWORK ON THE DISCOURSE ON THE LEGITIMACY OF INTERNATIONAL HUMAN RIGHTS BODIES
Introduction
1. On the context and progress of the international law discipline
1.1. A flourishing of international legal institutions and liberal values: after darkness, war and politics
1.2. The rise of discourses on the legitimacy of international human rights judicial bodies
2. Attempts to theorise the legitimacy of international judicial bodies
2.1. Normative legitimacy
3. Two normative approaches to IHRB legitimacy
3.1. The state-centric model of legitimacy
3.2. The constitutional approach to the legitimacy of international tribunals
4. Conclusion
CHAPTER 2: IDEOLOGY AND SELF-VALIDATION: CRITICAL LEGAL THEORY
Introduction
1. Critical legal studies
2. Legal Marxism
2.1. A toolkit of Marxist concepts
3. Self-validation and ideology as theoretical lenses: problematising legitimacy of the IACtHR
CHAPTER 3: THE INTER-AMERICAN COURT OF HUMAN RIGHTS AND ITS PRACTICE AS A SUPRACONSTITUTIONAL TRIBUNAL
Introduction
1. The Inter-American System of Human Rights and the IACtHR
2. Performance and practices of the IACtHR
2.1. Creation of uniform standards of human rights contents
2.2. Social rights protection
2.3. Holistic reparations
2.4. Supervision of compliance
3. Control of conventionality, general effects and Inter-American Corpus Juris
CHAPTER 4: TWO COMPETING LEGAL STREAMS ON THE LEGITIMACY OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
Introduction
1. On the discourses on the legitimacy of the Court and the actors who drive them
2. The constitutional perspective
2.1. Who drives the constitutional perspective?
2.2. The constitutionalisation of international law
2.3. Supranationalisation I: the existence of a common Corpus Juris and bloc of conventionality
2.4. Dialogue and subsidiarity
2.5. Supranationalisation II: control of conventionality
2.6. Supranationalisation III: the Court’s public authority and transnational democratic grounds
2.7. Margin of appreciation: between reluctance and acceptance
2.8. Democratic transformation
3. The state-centric local democratic approach
3.1. Who drives the state-centric approach?
3.2. Approach to the existence of a ius constitutionale commune
3.3. Principle of subsidiarity against supranationalisation
3.4. Arguments against the Court as ultimate interpreter (Supranationalisation II)
3.5. Defence of local democracies and sovereignty (Supranationalisation III)
3.6. Court and its democratic legitimacy
3.7. Margin of appreciation as an alternative solution to supranationalisation
3.8. Democratic transformation at the local level
Conclusion
CHAPTER 5: STATE-CENTRIC VS. CONSTITUTIONAL DISCOURSES?: CONFLUENCE RATHER THAN OPPOSITION
Introduction
1. The criteria grounding the discourses on the legitimacy of the Court
2. On the analysis of the actors and their discourses
3. Similarities masked as disagreements in the two discourses on the legitimacy of the Court
3.1. The constitutional analogy
3.2. Subsidiarity and margin of appreciation
3.3. Democratic transformation
4. Ideology and false contingency as flaws in the use of the constitutional analogy
4.1. The use of the constitutional analogy in international law
4.2. Constitutional analogies and the legitimacy of the Court
5. Conclusions
CHAPTER 6: IDEOLOGY AND THE IMAGE OF THE IACTHR AS DEMOCRACY-BUILDER
Introduction
1. Democracy and the IACtHR as a democracy-builder
2. Ideology critique of the two legal discourses on the legitimacy of the IACtHR as a democracy-builder
2.1. Naturalisation and false contingency of the concept of procedural democracy
2.2. Procedural democracy: expert’s unfinished journey
2.3. Ideology and distrust over majorities
2.4. Democratic proceedings and substantive equality
Conclusion
CONCLUSION
1. The actors involved in the deployment of the two legal perspectives
2. Ideology as a method of critique
3. Constitutional analogy: On the existence of a ius constitutionale commune
3.1. Ius constitutionale commune created by judges
3.2. Liberal constitutionalism: human rights and democracy as part of the ius constitutionale commune
4. Dialogue, margin of appreciation and subsidiarity
5. On the role of the Court as an agent of democratisation
6. On the legitimacy of the Court
Biography
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.
