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The Inter American Court of Human Rights: The Legitimacy of International Courts and Tribunals

The Inter American Court of Human Rights: The Legitimacy of International Courts and Tribunals

Author: Natalia Torres Zúñiga
Publisher: Routledge
ISBN: 9781032061375
Published In: July 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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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 decenter the focus away from formal legal institutions, engaging with the idea that ordinary people can mobilize 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 political science and legal philosophy.

INTRODUCTION

CHAPTER 1: A GENERAL FRAMEWORK ON THE DISCOURSES ON THE LEGITIMACY OF INTERNATIONAL HUMAN RIGHTS BODIES

Introduction

On the context and progress of the international law discipline

A flourishing of international legal institutions and liberal values: After darkness, war and politics

The rise of discourses on the legitimacy of international human rights judicial bodies

Attempts to theorise the legitimacy of international judicial bodies

Normative legitimacy

Standards of normative legitimacy

Two normative approaches to IHRB legitimacy

Conclusion

CHAPTER 2: IDEOLOGY AND SELF-VALIDATION: CRITICAL LEGAL THEORY

Introduction

Critical Legal Studies

Legal marxism

2.1. A toolkit of marxist concepts

3. Self-validation and ideology as theoretical lenses: problematizing legitimacy of the IACHR

CHAPTER 3 THE INTER-AMERICAN COURT OF HUMAN RIGHTS AND ITS PRACTICE AS A SUPRACONSTITUTIONAL TRIBUNAL

Introduction

The Inter-American System of Human Rights and the IACtHR

Performance and practices of the IACtHR

2.1. Creation of uniform standards of human rights contents

2.2. Social rights protection

2.3. Holistic reparations

2.4. Supervision of compliance

Control of conventionality, general effects, and the inter-american corpus juris

CHAPTER 4: TWO COMPETING LEGAL STREAMS ON THE LEGITIMACY OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Introduction

On the discourses on the legitimacy of the Court and the actors who drive them

The constitutional perspective

2.1. Who drives the constitutional perspective?

2.2. The constitutionalisation of international law

2.3. Supranationalisation I : the existence of a common corpus juris and bloc of conventionality

2.4. Dialog and subsidiarity

2.5. Supranationalisation II: control of conventionality

2.6. Supranationalisation III: The Court’s public authority and transnational democratic grounds

2.7. Margin of appreciation: between reluctance and acceptance

2.8. Democratic transformation

The state-centric local democratic approach

3.1. Who drives the state-centric approach?

3.2. Approach to the existence of a ius constitutionale commune

3.3. Principle of subsidiarity againsT supranationalization

3.4. Arguments against the Court as ultimate interpreter (Supranationalisation II)

3.5. Defence of local democracies and sovereignty (Supranationalisation III)

3.6. The Court and its democraric legitimacy

3.7. Margin of appreciation as an alternative solution to supranationalisation

3.8. Democratic transformation at the local level

Conclusion

CHAPTER 5: STATE-CENTRIC VS. CONSTITUTIONAL DISCOURSES? CONFLUENCE RATHER THAN OPPOSITION

Introduction

The criteria grounding the discourses on the legitimacy of the Court

On the analysis of the actors and their discourses

Similarities masked as disagreements in the two discourses on the legitimacy of the Court

The constitutional analogy

Subsidiarity and margin of appreciation

Democratic transformation

Ideology and false contingency as flaws in the use of the constitutional analogy

The use of the constitutional analogy in international law

Constitutional analogies and the legitimacy of the Court

Ideology on the arguments related to the existence of a ius constitutionale commune

Control of conventionality, dialog, and the profile of the Court as a supra-constitutional tribunal: Legal expertise ruling the region

Transnational democracy vs. indirect democratic grounds of the legitimacy of the Court

Conclusions

CHAPTER 6: Ideology and the image of the IACtHR as democracy builder

Introduction

Democracy and the IACtHR as a democracy builder

Ideology critique of the two legal discourses on the legitimacy of the IACtHR as a democracy builder

Naturalization and false contingency of the concept of procedural democracy

Procedural democracy: expert’s unfinished journey

Ideology and distrust over majorities

Democratic proceedings and substantive equalit

Conclusions

CONCLUSIONS

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