The Legitimacy of Transformative Adjudication: the Case of the Inter-American Court of Human Rights
The Inter-American Court of Human Rights (hereinafter IACtHR or Court) is perhaps the most activist international tribunal in existence. Its jurisprudence has pushed the boundaries of human rights law time and time again. By, among others, ordering transformative reparations which go beyond individual cases, carrying out expansive treaty interpretation and ordering all domestic authorities to measure the legality of their actions against the rights of the American Convention on Human Rights as interpreted by the IACtHR, it has profoundly altered the legal landscape in the Americas. In line with the international public authority approach, this begs the question of its legitimacy.
The justification of Inter-American adjudication is thus the central concern of this study. Traditional accounts of how international tribunals operate fail to explain and justify the breadth and depth of the IACtHR’s exercise of international public authority. Concentrating on the specific discourses developed by the actors of the system to justify Inter-American adjudication (embedded in their proper historical and institutional context), renders more meaningful results. Nevertheless, such an analysis reveals legal, moral and functional justification narratives which have so far served to sustain widespread social legitimacy but which in some aspects fall short of normative democratic standards.
In the almost thirty years since the IACtHR started exercising its contentious jurisdiction, the more creative traits of its jurisprudence have developed more or less along two overarching topics.
The first of these is the transition to democracy, the second is structural causation of human rights violations. This first subject of concern resulted in a body of case law which set stringent new standards on how states must address a legacy of grave human rights violations. The second layer, which emerged after the acuteness of transition receded (without displacing the first one), to address and alleviate violations produced by structural causation, has likewise resulted in creative and expansive praetorian activity. Thus, individual human rights were given a collective dimension and cases were used as platforms for broader societal transformation. This is relevant for the purposes of the analysis since the contextual exigencies and institutional dynamics of these two broad topics show relevant distinctions and have generated different legitimatory discourses.
In the project, first the salient aspects of Inter-American adjudication will be pointed out, that is, the characteristics of its body of law that are specific to this international tribunal will be described. Second, explanations will be offered as to why adjudication took on these qualities by drawing attention to contextual exigencies and institutional dynamics. Third, justification narratives of such exercises of international public authority will be distilled by analyzing the utterances of actors relevant for the system. Fourth, the challenges raised to the prevailing narratives will be recounted and last but not least, a critique based on democratic considerations will be briefly sketched.