Quo vadis, Inter-American Court? Activism, Backlash and Latin American Constitutionalism (I-CONnect Column)

—Francisca Pou Giménez, ITAM, Mexico City

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Next July, it will be 30 years since the Inter-American Court of Human Rights (IACtHR) issued its first ruling, Velásquez Rodríguez (1988). In three decades, we have witnessed a wealth of developments that were hard to imagine when this body – whose seven Justices work pro bono, with the support of a small staff and shrinking funds reluctantly provided by States at the OAS – joined the Inter-American Commission in striving to ameliorate human rights abuses in the region.

The Court has been generous in innovations, which include an intense watching of state duties to prevent violations by public and private actors, a liberal stance towards procedural requirements, forceful doctrines regarding rights indivisibility and disadvantaged groups, and a rich and pioneering remedial toolkit. Most notably, it has adopted the doctrine of “conventionality control,” which urges judges and other national authorities to assure, within the limits of their jurisdiction, the efficacy of the Convention, inaugurating an integrative framework of relations between national and international legal sources and authorities.[1] Partly because of attitude and will, and partly because of specificities of institutional design,[2] the Court has gained a reputation as being distinctively activist.

Three recent episodes have garnered attention in the legal community for once again ringing the bell of activism. The first is the Fontevecchia saga (2011-2018), which documents the back-and-forth between the IACtHR and the Supreme Court of Argentina with regards to a privacy vs. free speech case. The second is the Lagos del Campo ruling (2017), where the Court declared for the first time the direct efficacy of social and economic rights in the context of the American Convention. The third is Advisory Opinion N. 24 (2017), on gender identity and non-discrimination of same-sex couples. While the three episodes confirm that the Court consistently feels like it needs to take certain roads, despite more conciliatory ones being available, I suggest that the activism/backlash outcry should probably redirect its arguments, given regional constitutional commitments and the growing State willingness to play the Inter-American political card.

Fontevecchia

In Fontevecchia and D’Amico (2011), the Court found Argentina in violation of its duties regarding the free speech rights of two journalists who were condemned by national courts (including the Supreme Court) to pay damages for having invaded the privacy of ex-President Menem.[3] The Court considered that Argentinian courts did not solve the conflict of rights under proper Inter-American standards and instructed the country to, among other things, “leave without effect” the Supreme Court ruling within one year. While the State took no action for quite long regarding this core remedy, on Valentine’s Day 2017, the Supreme Court finally came forward. To the surprise of all, a Court that had been a close ally and an enthusiastic enforcer of Inter-American standards was now stating that “repeal” was impossible, talking of a “sphere of sovereignty reservation”, and proclaiming its status as supreme judicial body in the country.[4]

On supervising compliance, the IACtHR was conciliatory and remarked that compliance must not necessarily imply a “repeal,” urging the country to find an appropriate solution.[5] But the issue remains open[6], and the Argentinian rebellion has further nourished the ever-growing debate about the “verticality” of the Court and its role as “fourth appeal” in rights conflicts, out of its rejection of the doctrine of the margin of appreciation and its unwillingness to accord States a degree of deference.[7]

Lagos del Campo

In Lagos del Campo, the IACtHR found Perú in violation of the right to work and association of a person who was director of an association within the company he worked for and was dismissed after giving an interview to a magazine.[8] The IACtHR framed, for the first time, the violation to employment stability as a self-standing violation of Article 26 (“Progressive Development”), the sole provision in Chapter III of the Convention. This article prompts States to “undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires”.[9]

As is well known, the Inter-American system has made available to States a Protocol on social, economic and cultural rights (the San Salvador Protocol), in force since 1999. This Protocol however, allows for only two of the rights it contains to be individually petitioned before the IACtHR (education and trade-union freedom).[10] Lagos del Campo, even if the product of a divided Court, suggests that the destiny of social rights enforcement is no longer tied to the destiny of the Protocol and thus opens the door to an abundance of new claims.

Same-Sex Couples

In November 2017, the Court issued an Advisory Opinion requested by Costa Rica regarding aspects of the legal treatment to be accorded to inter and transgender individuals and same-sex couples.[11] The Court was asked to clarify, first, the protection awarded by the Convention regarding the legal means to recognize a change of name addressed to align it with gender identity —in particular if requiring a plaintiff to follow lengthy judicial proceedings, instead of faster and cheaper administrative ones, was acceptable. Secondly, the Court was asked to clarify, in light of its previously having declared sexual orientation as a protected category under the Convention, what protection the treaty confers to the property interests ensuing from same-sex bonds, and whether States had to make available a specific institution to regulate those interests.

All eyes were placed, of course, on the last question: on whether the Court, honoring its distaste for half-measures, would be prepared to declare, like the US Supreme Court in Obergefell, a State duty to recognize same-sex marriage. And while the Advisory Opinion devotes much space to other questions, in the final pages it basically answers this question affirmatively: States must extend to same-sex couples the institutions that protect family bonds at the national sphere, including marriage. They must actively seek to overcome whatever temporary difficulties they might face in doing so and assure, in the meantime, meaningful protection.[12]

The Roads not Taken and the Nature of Latin American Constitutionalism

In all three cases, the IACtHR discarded some of the roads it could have taken and chose others that maximize its vision of what rights protection demands in the case. In OC-24/17, it could have embraced a more conventional understanding of what an “advisory opinion” allows for, limiting itself to dispel doubts about the Convention’s interpretation or its compatibility with specific national norms raised by the requesting State —instead of commanding all States to follow certain specified paths. In Lagos del Campo, it could have stuck by its former position, where social rights protection occurs as a collateral implication of protecting civil and political rights under a paradigm of indivisibility —implicitly accepting the existence of a division of labor between the Convention and the San Salvador Protocol. In Fontevecchia and other cases involving rights conflicts among private parties, it could have sketched out a limited set of conditions allowing for an overruling of national judicial balancing under extraordinary circumstances.

All this is true. Yet it is also true that the Court produced, in the three cases, a prima facie perfectly sound interpretation of the substantive provisions at play —all of which are simultaneously considered national provisions by constitutions, or find norms that “mirror” them in the national sphere. With the possible exception of balancing cases (where differences of opinion may come from a different appraisal of specific facts and weights), the conclusions arrived at by the Inter-American Court could be reached by most national apex courts even if the American Convention and Inter-American rulings did not exist, solely on the basis of the provisions contained in their own national constitutions. Before sounding the trumpets of imminent state backlash, therefore, it is important to see that contemporary Latin American “open” constitutional frameworks restrict the range of considerations that can be meaningfully resorted to: sovereignty arguments before the Inter-American Court have no place; arguments denying the enforceability of social rights have no place; and evolving interpretation is a daily occurrence. This suggests the direction eventual “reactions” to the Court should therefore take. While Executive branches can launch campaigns of unprincipled backlash —though the way they increasingly implicate the Court within their political strategies may eventually reveal their hypocrisy[13]—, the reaction of high national courts must be principled. Judicial responses to the Inter-American Court based on what national constitutions prescribe must become more sophisticated and should turn directly on which institution better protects rights.

Suggested citation: Francisca Pou Giménez, Quo vadis, Inter-American Court? Activism, Backlash and Latin American Constitutionalism, Int’l J. Const. L. Blog, Apr. 11, 2018, at: http://www.iconnectblog.com/2018/04/quo-vadis-inter-american-court-activism-backlash-and-latin-american-constitutionalism-i-connect-column/

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[1] On the integrative and “constitutional” traits of the system, see Ariel E. Dulitzky, “An Inter-American Constitutional Court? The Invention of the Conventionality Control by the Inter-American Court of Human Rights”, 50 Tex. Int’l L.J. 45 (2015).

[2] For an illuminating portray of institutional differences, see Laurence Burgorgue-Larsen, “The added value of the inter-American human rights system: comparative thoughts”, in Armin von Bogdandy et al., Transformative constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford, 2017).

[3] Fontevecchia y D’Amico vs. Argentina (November 29, 2011).

[4] Ministerio de Relaciones Exteriores y Culto s/informe sentencia dictada en el caso ‘Fontevecchia y D’Amico vs. Argentina’ por la Corte Interamericana de Derechos Humanos, esp. pp. 6, 9 and 10.

[5] Fontevecchia y D’Amico vs. Argentina. Supervisión de cumplimiento de sentencia (October 18, 2017).

[6] On December 5, 2017, Resolution 4015/17 of the Supreme Court of Argentina ordered an addition to the original ruling stating that it the latter has been “declared incompatible with the Inter-American Convention.” It also stated that this measure can be adopted since it does not violate the “principles of public law” contained in the Constitution.

[7] Academic debate on these questions is now vast. See, for a sample, the pieces gathered in Int’l J. Const. L. 15(2) (2017).

[8] Lagos del Campo v. Perú (August 31, 2017)

[9] For an excellent reconstruction of the antecedent discussion on the status of Article 26 within the Court, see Óscar Parra Vera, “La justiciabilidad de los derechos económicos, sociales y culturales en el Sistema Interamericano a la luz del artículo 26 de la Convención Americana. El sentido y la promesa del caso Lagos del Campo”, in Eduardo Ferrer MacGregor et al., eds., Inclusión, Ius Commune y justiciabilidad de los DESCA en la jurisprudencia interamericana. El caso Lagos del Campo y los nuevos desafíos (Querétaro, 2018). The same criteria were used in Trabajadores cesados de Petroperú y otros vs. Perú (November 27, 2017).

[10] The first case enforcing a Protocol right is Gonzales Lluy y otros vs. Ecuador (September 1, 2015).

[11] OC-24/17. Gender Identity, and Equality and non-Discrimination to Same-Sex Couples (November 24, 2017).

[12] See OC-24/17, § 228 (core answer), §§ 218-219 (declaring the extension of marriage to same-sex couples to be the “more simple and efficacious” means to attain the protection they enjoy under the Convention); §§ 221-223 (refuting the grounds sometimes offered to sustain the unsuitability of marriage in the case of same sex-couples), §§ 224-225 (considering the creation of an institution with effects analogous to marriage but with a different name to be discriminatory); and §§ 226-227 (acknowledging momentary needs to adjust national systems, but stressing its transitory nature).

[13] See Nicolás Carrillo-Santarelli, The Politics behind the Latest Advisory Opinions of the Inter-American Court of Human Rights, Int’l J. Const. L. Blog, Feb. 24, 2018, at: http://www.iconnectblog.com/2018/02/the-politics-behind-the-latest-advisory-opinions-of-the-inter-american-court-of-human-rights/.