![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
In its early days, almost all cases examined by the Inter-American Court of Human Rights (IACtHR) involved acts of state violence. Deference to national decision-makers was out of the question, due to their manifest lack of willingness and/or ability to deliver on human rights promises. A partial shift of focus away from such cases, due to the change in a legal and political landscape, created the need for the IACtHR to reconsider its relationship with national jurisdictions and become more deferential. This would enable the IACtHR to ensure conformity of its approach with its subsidiary role and strengthen its legitimacy and effectiveness. This article reflects on how deference does and should operate at each of the two stages of judicial reasoning, norm interpretation and norm application. It asks: does the IACtHR exercise deference? Should it exercise deference? If so, with regard to what, under what conditions and to what extent? As regards norm interpretation, the article suggests ways of adopting a middle ground between overreliance on national interpretations to the detriment of individuals and complete disregard of those interpretations at the risk of antagonising states. As regards norm application, it suggests that some of the recent judgments signalled the willingness of the IACtHR to exercise deference (refusing to impose its determination of consequences that should follow from the treaty norms in the given situation) and calls for a clear articulation of conditions and the extent of deference.
Acknowledgements
The author would like to thank Amrei Muller, Matthew Saul and anonymous reviewers for their helpful comments on earlier drafts.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on Contributor
Nino Tsereteli is a Post-Doctoral Fellow at the Judicial Studies Institute, Masaryk University, Faculty of Law.
Notes
1. Alexandra Huneeus, ‘Constitutional Lawyers and the Inter-American Court’s Varied Authority’, Law and Contemporary Problems 79 (2016): 179, 182 (pointing out that through 2000, all but two cases decided by the court dealt with state violence).
2. Samantha Besson, ‘Subsidiarity in International Human Rights Law – What is Subsidiary about Human Rights?’, American Journal of Jurisprudence 61 (2016): 69, 82 (pointing out that there are some rights in relation to which the ECtHR has excluded the margin of appreciation); Roberto Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’, Human Rights Law Review 14 (2014): 494 (pointing out that total, de novo reassessment of domestic decision-making is warranted in cases on the right to life and prohibition against torture).
3. Bernard Duhaime, ‘Subsidiarity in the Americas: What Room is there for Deference in the Inter-American System’, in Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation, ed. Lucasz Gruszczynski and Wouter Werner (Oxford: Oxford University Press, 2014), 314 (explaining the IACtHR’s hesitation to defer by the limited capacity of national agencies to effectively protect human rights); Ariel E. Dulitzky, ‘An Inter-American Constitutional Court? The Invention of Conventionality Control by the Inter-American Court of Human Rights’, Texas International Law Journal 50 (2015): 54 (pointing out that ‘subsidiarity generally works when there is a functioning democratic system and an independent and effective judiciary’ and that the IACtHR ‘never had this privilege’ since national courts were ‘unable, incapable, powerless or unwilling to intervene’ to address massive violations of human rights).
4. Duhaime, ‘Subsidiarity in the Americas’, 301.
5. See for example, Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford: Oxford University Press, 2012) 85, 90 (arguing that even though the IACtHR had not assigned weight to the decisions of national authorities, it would have deferred if the cases were suitable).
6. Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, 19 January 1984, Inter-Am. Ct. H.R. (Ser. A) No. 4 (1984), paras 59, 62–3.
7. Jorge Contesse, ‘Contestation and Deference in the Inter-American Human Rights System’, Law and Contemporary Problems 79 (2016): 141.
8. Almonacid-Arellano et al. v. Chile, IACtHR, Judgment of 26 September 2006, para. 124.
9. Lucas E. Barreiros, ‘Emerging Voices: Freedom or Restraint? On the Comparison Between the European and Inter-American Human Rights Courts’, Opinio Juris, http://opiniojuris.org/2014/08/11/emerging-voices-freedom-restraint-comparison-european-inter-american-human-rights-courts/
10. Dulitzky, ‘An Inter-American Constitutional Court?’, 45.
11. Ibid., 76.
12. Roberto Gargarella, ‘Gelman v. Uruguay, Symposium: The Constitutionalization of International Law in Latin American Democracy and Rights’, AJIL Abound (2015): 115–19.
13. Cristina Binder, ‘The Prohibition of Amnesties by the Inter-American Court of Human Rights’, German Law Journal 12, no. 5 (2011): 1203.
14. Contesse, ‘Contestation and Deference in the Inter-American Human Rights System’, 145.
15. Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’, International and Comparative Law Quarterly 65 (2016): 21–2.
16. Under 62(3) of the American Convention, the jurisdiction of the IACtHR ‘shall comprise of all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it, provided that the State Parties to the case recognize or have recognized such jurisdiction’.
17. For the rationale of deference, see Aileen Kavanagh, ‘Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication’, in Expounding the Constitution, Essays in Constitutional Theory, ed. Grant Huscroft (Cambridge: Cambridge University Press, 2008), 185–7.
18. Anastasios Gourgourinis, ‘The Distinction between Interpretation and Application of Norms in International Adjudication’, Journal of International Dispute Settlement 2 (2011): 33, 43. Academic commentators differentiate between norm interpretation and norm application for the purposes of assessing appropriateness of affording the margin of appreciation to national jurisdictions. However, they admit that the two concepts are overlapping. See for example, Jan Kratochvil, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’, Netherlands Human Rights Quarterly 29 (2011): 324, 332; Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’, European Journal of International Law 16 (2005): 907, 914.
19. Gourgourinis, ‘The Distinction between Interpretation and Application of Norms in International Adjudication’, 33.
20. Ibid., 46–7.
21. Joost Pauwelyn and Manfred Elsig, ‘Politics of Treaty Interpretation, Variations and Explanations Across International Tribunals’, in Interdisciplinary Perspectives on International Law and International Relations, The State of Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (Cambridge: Cambridge University Press, 2013).
22. Anthea Roberts, ‘Subsequent Practice: The Battle Over Interpretive Power’, in Treaties and Subsequent Practice, ed. Georg Nolte (Oxford: Oxford University Press, 2013), 95.
23. Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’, 913–14.
24. Ibid.
25. Besson, ‘Subsidiarity in International Human Rights Law’, 69, 99.
26. Ibid., 100.
27. See Oddný Mjöll Arnardóttir, ‘Organised Retreat? The Move from “Substantive” to “Procedural” Review in the ECtHR’s Case Law on the Margin of Appreciation’, Conference Paper No. 4, Annual Conference, Oslo, 10–12 September 2015, 12–13, 22–3 (commenting on methodological choices of the ECtHR).
28. Janneke Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, European Law Journal 17, no. 1 (2011): 80–120; Kratochvil, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’, 354 (both suggesting that there should be three different levels of intensity of judicial review).
29. Huneeus, ‘Constitutional Lawyers and the Inter-American Court’s Varied Authority’, 182 (pointing out that while the cases addressing state violence remain present on the IACtHR’s docket, since 2012, only half of the judgments belong to this category).
30. McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’, 60.
31. Gomes Lund et al. v. Brazil, Judgment of 24 November 2010 (Preliminary Objections, Merits, Reparations and Costs), para. 44.
32. Ibid., para. 176.
33. Gelman v. Uruguay, Judgment of 4 February 2011 (Merits and Reparations), para. 239.
34. Gomes Lund et al. v. Brazil, paras 163–70.
35. Ibid.
36. Gelman v. Uruguay, paras 215–24.
37. Barrios Altos v. Peru, Judgment of 14 March 2001 (Merits), para. 41.
38. Pablo Contreras, ‘National Discretion and International Deference in the Restriction of Human Rights: A Comparison between the Jurisprudence of the European and the Inter-American Court of Human Rights’, Northwestern Journal of Human Rights 28 (2012): 71.
39. Atala Riffo and Daughters v. Chile, Judgment of 24 February 2012 (Merits, Reparations and Costs).
40. Ibid., para. 74.
41. Ibid., para. 75.
42. Ibid., Dissenting Opinion of Judge Perez-Perez, para. 20 (asserting that evolutive interpretation is dependent on the existence of some kind of common ground and, in its absence, a national margin of appreciation should be allowed).
43. Atala Riffo and Daughters v. Chile, para. 92.
44. Ibid., para. 119.
45. Ibid.
46. Ibid., para. 92, fn. 114.
47. Artavia Murillo et al. v. Costa Rica, Judgment of 28 November 2012 (Preliminary Objections, Merits, Reparations and Costs).
48. Ibid., para. 162.
49. Ibid., para. 170.
50. Ibid., paras 177, 186.
51. Ibid., para. 187.
52. Ibid., para. 187.
53. Ibid., paras 252–4.
54. Ibid., para. 256.
55. Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, Judgment of 21 June 2002 (Merits, Reparations and Costs), paras 103, 108.
56. Ibid., para.106.
57. Ibid., para. 108.
58. Ibid., Concurring Separate Opinion by Judge Sergio Garcia Ramirez, para. 12.
59. Ibid.
60. Lucas Lixinski, ‘Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law’, European Journal of International Law 21, no. 3 (2010): 585–604 (suggesting that the IACtHR avoids ‘excursion into waters not chartered by the American Convention’ and ‘bears in mind that having states as a part of the system and complying with decisions is every bit as important as progressive, pro homine interpretations of the American Convention’).
61. Gomes Lund et al. v. Brazil, Judgment of 24 November 2010 (Preliminary Objections, Merits, Reparations and Costs), para. 175 (pointed out that ‘the non-compatibility of the amnesty laws with the American Convention in cases of serious violations of human rights does not stem from a formal question, such as its origin, but rather from the material aspect’); Gelman v. Uruguay, paras 225–46 (emphasised the limits of democracy in relation to the rights protection and insisted that the existence of a democratic regime was determined by its formal as well as substantive characteristics. It was irrelevant for the IACtHR that in contrast to other amnesty laws, the law under consideration had been approved by the democratically elected legislature and upheld by popular referendums).
62. Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’, 910.
63. Castaneda Gutman v. Mexico, Judgment of 6 August 2008 (Preliminary Objections, Merits, Reparations and Costs), paras 166, 171.
64. Ibid., para. 198.
65. Ibid., paras 201, 204.
66. Ibid., para. 200, 202.
67. Yatama v. Nicaragua, Judgment of 23 June 2005 (Preliminary Objections, Merits, Reparations and Costs), paras 212–26 (finding the violation due to exclusion of candidates representing the indigenous community from municipal elections, by imposing the requirements alien to their practices, customs and traditions).
68. Wong Ho Wing v. Peru, Judgment of 30 June 2015 (Preliminary Objections, Merits, Reparations and Costs), paras 164–7. This case involved alleged exposure to the risk of suffering violations in case of extradition to China. The IACtHR pointed out that none of the judicial authorities that intervened gave any consideration to the arguments concerning the human rights situation in the state requesting extradition and possible risks to the personal integrity of the presumed victim. It emphasised that the judiciary ‘should have responded to these allegations’. Consequently, the IACtHR had to carefully examine the information about conditions in the state requesting extradition and as an additional factor, diplomatic assurances provided, in order to determine whether the presumed victim would face a real, foreseeable and personal risk, if extradited.
69. In Usón Ramírez v. Venezuela, the IACtHR found that the national court failed to take into account the requirement of the Convention about larger tolerance towards expression on matters of public interest and imposed disproportionate sanctions, providing automatic protection to honour or reputation, without considering the larger protection of freedom of expression in a democratic society. Usón Ramírez v. Venezuela, Judgment of 20 November 2009, paras 84–6; In Fontevecchia and D’amico v. Argentina, the IACtHR scrutinised the decision of the Supreme Court imposing a civil sentence upon two journalists for expressions related to the private life of the president. It established that the Supreme Court failed to assess whether the information in question was or was not of public interest or contributed to the general debate and instead referred to the alleged privacy issues in isolation from the problems of public interest arising from them. Fontevecchia and D’amico v. Argentina, Judgment of 29 November 2011, paras 51, 66.
70. Memoli v. Argentina, Judgment of 22 August 2013 (Preliminary Objections, Merits, Reparations and Costs).
71. Ibid., para. 140.
72. Ibid., para. 141.
73. Ibid., paras 141, 143.
74. Ibid., para. 143.
75. Ibid., para. 147.
76. Manuel Cepeda Vargas v. Colombia, Judgment of 26 May 2010 (Preliminary Objections, Merits, Reparations and Costs), para. 246.
77. Ibid.
78. See partially dissenting opinion of judge Perez Perez in Manuel Cepeda Vargas v. Colombia.
79. Concurring Opinion of Diego Garcia-Sayan in ibid., para. 3.
80. Ibid., paras 4–6, 9.
81. Ibid., para. 12.
82. Ibid., paras 23–4.
83. Ibid., para. 33.
84. Ibid., para. 32.
85. Gelman v. Uruguay, Order of 20 March 2013, paras 70–1.
86. Ibid.
87. Legg, The Margin of Appreciation in International Human Rights Law, 85, 90 (arguing that even though the IACtHR had not assigned weight to the decisions of national authorities, it would have deferred in suitable cases); Duhaime, ‘Subsidiarity in the Americas’, 315; Contreras, ‘National Discretion and International Deference in the Restriction of Human Rights’, 81.
88. Atala Riffo and Daughters v. Chile, para. 74; Artavia Murillo et al. v. Costa Rica, para. 170.
89. Kanstantsin Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’, German Law Journal 12 (2011): 1736.
90. Ibid., 1744.
91. Laurence Helfer and Anne-Marie Slaughter, ‘Towards a Theory of Effective International Adjudication’, Yale Law Journal 107 (1997): 317.
92. Besson, ‘Subsidiarity in International Human Rights Law’, 100.
93. Ibid.
94. Gerald L. Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’, European Journal of International Law 19 (2008): 101–23; McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’, 44.
95. Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’, 115.
96. Ibid.
97. Dulitzky, ‘An Inter-American Constitutional Court?’, 48, 52.
98. Ibid., 73.
99. Ibid., 76.
100. Ibid., 77.
101. Paksas v. Lithuania, Appl. No. 34932/04, Judgment of 6 January 2011 (Merits and Just Satisfaction), para. 106.
102. Shindler v. the United Kingdom, Appl. No. 19840/09, Judgment of 7 May 2013 (Merits and Just Satisfaction), para. 115; Sitaropoulos and Giakoumopoulos, Appl. No. 42202/07, Judgment of 15 March 2012 (Merits), para. 75.
103. McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’, 60.
104. Eyal Benvenisti, ‘Margin of Appreciation, Consensus and Universal Standards’, New York Journal of International Law and Policy 31 (1998–1999): 843, 850–3; Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’, 920; Gerald L. Neuman, ‘Subsidiarity’, in The Oxford Handbook of International Human Rights Law, ed. D. Shelton (Oxford: Oxford University Press 2013), 360, 375–7.
105. Duhaime, ‘Subsidiarity in the Americas’, 316.
106. For reflections on the ECtHR, see Amrei Müller, ‘Domestic Authorities’ Obligations to Co-develop the Rights’, in this issue.
107. Holning Lau, ‘Rewriting Shalk and Kopf Shifting the Locus of Deference’, in Diversity and European Human Rights, ed. Eva Brems (Cambridge: Cambridge University Press, 2012), 244 (suggests exercise of self-restraint by the ECtHR not when pronouncing whether a right should be protected, but with regard to how and when to implement protection of that right).
108. As an exception, see Memoli v. Argentina, para. 143.
109. Shany, ‘Towards a General Margin of Appreciation Doctrine in International Law?’, 922; McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’, 33; Contesse, ‘Contestation and Deference in the Inter-American Human Rights System’, 144; Duhaime, ‘Subsidiarity in the Americas’, 302.
110. Arnardóttir, ‘Organised Retreat?’, 43.
111. Dulitzky, ‘An Inter-American Constitutional Court?’, 53 (according to the author, subsidiarity is premised on the understanding that local actors are in the best position to understand what measure may be most effective for internalizing human rights norms in distinct contexts).
112. Paolo Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights’, American Journal of International Law 97 (2003): 38, 44.
113. Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, 118; Gerards relied on Ely’s representation-reinforcing approach to judicial review, according to which judicial control is essential if national political process ‘malfunctions’ or is ‘undeserving trust’. This happens if ‘the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out’ and also if the ‘representatives beholden to an effective majority are systematically disadvantaging some minority’ denying them ‘the protection afforded to other groups by a representative system’. See John Hart Ely Democracy and Distrust, A Theory of Judicial Review (Cambridge, Massachusetts and London, England: Harvard University Press, 1980), 74, 103.
114. Commentators are reluctant to accept international courts’ total deference to the national decision-making process. See for example Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’, 910 (noting that ‘the margin of appreciation does not preclude judicial review, but rather works to limit its scope of operation’).
115. Claudio Grossman, ‘The Inter-American System and its Evolution’, Inter-American and European Human Rights Journal 2 (2009): 49–50. See also Contesse, ‘Contestation and Deference in the Inter-American Human Rights System’, 130–2.
116. Kratochvil, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’, 343; K. Dzehtsiarou, European Consensus and Legitimacy of the European Court of Human Rights (Cambridge: Cambridge University Press 2015), 131–4.