Title: CONSTITUTIONAL LAWYERS AND THE INTER-AMERICAN COURT'S VARIED AUTHORITY
Abstract: I INTRODUCTION The power of the Inter-American Court of Human Rights (IACtHR) to shape government behavior varies greatly from country to country. All states subject to the Court's jurisdiction accept its authority to adjudicate disputes, and all take at least some meaningful steps toward judgment compliance. Even the Chavez government, despite loudly campaigning against the Inter-American System (IAS) and eventually removing Venezuela from the Court's jurisdiction, occasionally paid victims pursuant to Court orders. (1) But in some states the Court's judgments play a far greater role: they are untethered from the particular dispute that gives rise to them and take on a life as law-like rules that guide the subsequent behavior of public actors and the outcomes of disputes that never reach the Court. In some states the Court's judgments even come to shape policymaking and public debates, constraining the range of options that are put on the table. The Colombian Constitutional Court, for example, regularly reviews national laws for compatibility with the American Convention on Human Rights as interpreted by the IACtHR. (2) And actors from all sides of Colombia's currently unfolding peace process--from the uribistas who oppose it to the guerrilla leadership that is negotiating it--refer to IACtHR rulings as they debate whether and how to prosecute war crimes. (3) This article demonstrates that variation of the Inter-American Court's authority across states can be explained in great part by the practice of constitutional law in each state. This is not to say that differences in constitutional texts explain the variation. Rather, the article suggests that for the Court's authority to expand beyond mere judgment compliance, two factors other than the black-letter law must be in place. The first factor is the presence of lawyers--be they scholars, judges, public-interest lawyers, or other practitioners--who adhere to and promote a particular vision of constitutional law as containing within it international human rights law. The Inter-American Court opened its doors in 1979, during the era of military dictatorships in Latin America. Starting in 1988, many Latin American countries enacted new constitutions. During this more democratic era, new theories that foreground judicial power, higher-law rights review, and constitutions open to international standards began to spread. There now exists in the region a transnational network of lawyers who advance a liberal vision of constitutional law that emphasizes judicial power, rights-based review, and Dworkinian-style interpretive practices, and who embrace the view that constitutional rights are grounded not only in positive domestic law but also in international human rights instruments. (4) Typically labeled neoconstitutionalism, such theories help provide a platform for expanding the Inter-American Court's authority. (5) But the spread of neoconstitutionalist ideas throughout Latin America does not explain why the IACtHR's authority varies by country. The second factor explaining this variation is that those who advance these ideas must have political impact at the national level: they must be able to forge alliances with legislative and executive reformers who adopt the movement's vision of law and advance it as part of their own project of political reform. In seeking to understand the rise of a unified Europe, the rise of the New Deal in the United States, and other transformations that are at the same time political and legal, Yvez Dezalay and Bryant Garth argue that it is important to broaden the analysis to include not only the legal field but also the interaction of the struggles that unfold in the legal field with those that unfold in the political field. (6) Their observation proves relevant in the Inter-American setting: it is where neoconstitutionalists gain political momentum and participate in the construction of a new domestic constitutional order, as in Colombia, that the Court's authority expands beyond judgment compliance and comes to shape state behavior outside the confines of a particular dispute. …
Publication Year: 2016
Publication Date: 2016-01-01
Language: en
Type: article
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Cited By Count: 13
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