The Inter American Court of Human Rights

The Legitimacy of International Courts and Tribunals

Natalia Zúñiga

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000598025
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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.

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

DOI: 10.4324/9781003200888-2

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

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.

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 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

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).

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

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.

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 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.

6 Herbert Butterfield, The Whig Interpretation of History (London: Bell, 1931).

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.

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.

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

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.

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 interna...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Dedication
• Contents
• Introduction
• 1 A general framework on the discourse on the legitimacy of international human rights bodies
• 2 Ideology and self-validation: Critical legal theory
• 3 The Inter-American Court of Human Rights and its practice as a supraconstitutional tribunal
• 4 Two competing legal streams on the legitimacy of the Inter-American Court of Human Rights
• 5 State-centric vs. constitutional discourses?: Confluence rather than opposition
• 6 Ideology and the image of the IACtHR as democracy-builder
• Conclusion
• Index