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

Human Rights › International Law

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

By Natalia Torres Zúñiga
Routledge July 2022

Specifications

ISBN-13
9781032061375
Publisher
Routledge
Publication
July 2022
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

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.

Table of Contents

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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