The final word? Constitutional dialogue and the Inter-American Court of Human Rights

Contesse, Jorge

doi:10.1093/icon/mox034

Cited by 11 publications

(8 citation statements)

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“…185 In this regard, EDC prioritizes forms of 'weak conventionality control', where the implementation of international human rights standards is based on the respect of the sources of international law, on the promotion of political forms of compliance beyond purely judicial mechanisms and on the awareness of domestic distributions of powers between different institutional sites of decision-making. 186 This, of course, does not imply abandoning the commitment with transformative aims, but rather encourages a reflection on the better ways to achieve these aims from international sites of normmaking and adjudication.…”

Section: Egalitarian-dialogic Constitutionalismmentioning

confidence: 99%

A critical account of Ius Constitutionale Commune in Latin America: An intellectual map of contemporary Latin American constitutionalism

Manus

2021

Glob. Con.

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Ius Constitutionale Commune in Latin America (ICCAL) is an academic endeavour that attempts to provide an account of the original Latin American path of transformative constitutionalism, comprising elements from national, transnational and international legal orders, and where the law is placed at the service of the normative trinity of constitutionalism, namely the rule of law, democracy and human rights. In this regard, ICCAL speaks of an Inter-American law that represents a new legal phenomenon, in a region where constitutionalist ideas have allegedly claimed new traction. In this article, I develop two main critiques that can be deemed challenges for an academic project that is still ‘under construction’, and provide an intellectual map of Latin American constitutionalism that could address these critiques and serve as a roadmap for studying potential Latin American contributions to debates around global constitutionalism.

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Section: Egalitarian-dialogic Constitutionalismmentioning

confidence: 99%

A critical account of Ius Constitutionale Commune in Latin America: An intellectual map of contemporary Latin American constitutionalism

Manus

2021

Glob. Con.

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“…Sin embargo, algunos académicos han presentado cuestionamientos a la doctrina. Dulitzky (2015aDulitzky ( , 2015b) y Contesse (2018Contesse ( , 2017 basan sus críticas en tres fundamentos: a) su base débil o inexistente en el derecho internacional y los documentos interamericanos; b) su pretensión intrusiva de definir las atribuciones de los jueces nacionales; y c) su incapacidad de generar un «diálogo» con los Estados, afirmando un problemático enfoque de tipo jerárquico de arriba hacia abajo, punto que también señala Torelly (2019, p. 136). Contesse (2018) sostiene que todos estos aspectos podrían eventualmente deslegitimar a la Corte IDH frente a los Gobiernos, tribunales y el público (p. 1169).…”

Section: Derechos Consideradosunclassified

Holding the line on human rights accountability: Explaining the unlikely judicial overturn of the pardon and immunity granted to human rights violator Alberto Fujimori

Cárdenas¹

2020

DERECHO

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Alberto Fujimori, Peruvian ex-president and perpetrator of human rights violations, was released from prison due to a presidential pardon in 2017. He was also granted immunity from prosecution. Although the political branches and the majority of the population supported these measures, as shown by public opinion polls, within months domestic courts overturned them completely, relying on standards set by the Inter-American Court of Human Rights. This is the most unlikely result, comparatively. The article examines what could explain this pro human rights accountability behaviour in the judiciary. It argues that the outcome could be the product of two processes initialised during the Peruvian transition: Judicial empowerment (independence and power gains) and legal culture shift from positivism to neo-constitutionalism. Both are defined and analysed with reference to transitional justice and socio-legal studies scholarship. The article further seeks to identify the conditions under which Inter-American conventionality control doctrine could have a strong domestic impact.

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“…343ff.) A particular important instrument in this regard is the conventionality control doctrine, which requires all state authorities to ex officio apply the American Convention as interpreted by the Court (Contesse, 2017; Ferrer Mac-Gregor, 2017). Just as the IACtHR comes to the aid of state authorities when they are under attack by other domestic authorities, these also come to the aid of the Court when its decisions raise negative reactions.…”

Section: Factors Of the Iacthr's Resiliencementioning

confidence: 99%

“…They argue that those incidents are part of an alleged ‘human rights backlash’, which targets not only the regional human rights regimes, but also the ideas of global justice embodied by the ICC. For instance, with regard to the IACtHR, several inter-American experts characterised the decision of the Argentine National Supreme Court of Justice in the case of Fontevecchia and D'Amico , 1 where it was held that the IACtHR acted ultra vires when it ordered the revocation of a national judgment as backlash (Abramovich, 2017; Contesse, 2017; Gargarella, 2017).…”

Section: Introductionmentioning

confidence: 99%

Parting ways or lashing back? Withdrawals, backlash and the Inter-American Court of Human Rights

Soley

Steininger

2018

International Journal of Law in Context

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This paper will analyse instances and threats of withdrawal from the Inter-American Court of Human Rights (IACtHR) in order to assess whether those cases can be qualified as backlash. Backlash often serves as an umbrella term for any form of disagreement, hence we differentiate ‘backlash’ from closely connected concepts such as ‘contestation’ and ‘resistance’. In the empirical part of this paper, we examine four cases of withdrawal from the IACtHR or threats thereof, namely Trinidad and Tobago, the Dominican Republic, Peru and Venezuela. The case-studies revealed that the criticism against the IACtHR is fuelled by a combination of three conditions, namely costs of membership, the domestic political system and the domestic impact of the judgments. Ultimately, the specific framework of the IACtHR allows innovative starting points to manage state discontent, in particular the two-tiered structure, the alliance with civil society and the presence of compliance partners within the state.

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The final word? Constitutional dialogue and the Inter-American Court of Human Rights

Cited by 11 publications

References 0 publications

A critical account of Ius Constitutionale Commune in Latin America: An intellectual map of contemporary Latin American constitutionalism

A critical account of Ius Constitutionale Commune in Latin America: An intellectual map of contemporary Latin American constitutionalism

Holding the line on human rights accountability: Explaining the unlikely judicial overturn of the pardon and immunity granted to human rights violator Alberto Fujimori

Parting ways or lashing back? Withdrawals, backlash and the Inter-American Court of Human Rights

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