To the improbable tune of 10-15 cases a year, the Inter-American Court of Human Rights (IACtHR) has radically altered the legal landscape of the region. It has struck down laws, given direct effect to some of its decisions and ordered all domestic authorities to ex-officio measure the legality of their actions in accordance with the American Convention and its jurisprudence. For the 20 states over which it exercises jurisdiction, it has become an undeniably powerful legal actor, an additional check on state power and a forum in which the demands of vulnerable sectors of the population can be ventilated. The IACtHR has undeniably sought to influence large-scale processes of social change in the Americas.
Traditional accounts of how international tribunals operate fail to explain and justify the breadth and depth of its activities. Constitutional theory from the Global South appears more helpful. Thus, in this project, the authority of the IACtHR is conceptualized through the lens of transformative constitutionalism. The Court’s jurisprudence and role– both the legal interpretations themselves and the dynamics that they produce – are reconstructed under this perspective.
The IACtHR’s transformative orientation was not a given. As critical legal scholars have shown, law can be both apologetic and utopian; it may cement power structures or destabilize them to bring about new ones. Even norms that are commonly known for their emancipatory potential – such as human rights – can be used and applied in a reactive and conservative manner. Both usages are, of course, present in the workings of the inter-American system, but to different extents.
This contribution also shows how an international regime can take on a life of its own. Even though the framers of the American Convention opened legal pathways for the Court to take on a transformative role, their statements in 1969 and the general experience of the time, did not presage this type of role for human rights law or for the regional human rights court. For these reasons, the historical and intellectual context which gave rise to this new understanding of rights and of the judicial role is addressed.
Although transformative adjudication in the Americas has by and large been used to deepen democratization processes, strengthen the rule of law and protect the vulnerable; it continues to raise important legitimacy concerns. These shall be sketched out in terms that acknowledges the limits of dominant theories and hopefully contributes to the discussion on the proper role of courts, the limits of judicial authority, and the importance of rights in the specific context of the Global South.