The Politics behind the Latest Advisory Opinions of the Inter-American Court of Human Rights

—Nicolás Carrillo-Santarelli, Universidad de la Sabana, Colombia[1]

The Inter-American Court of Human Rights (hereinafter, IACtHR) recently made public the text of its two latest advisory opinions, In OC-24/17 the Court was of the opinion that the change of name and identity documents ought to be consistent with the self-perceived gender identities, reason why individuals should be entitled to request corrections in that regard; that self-same couples are entitled to the protection of the rights of the family (art. 17 American Convention on Human Rights), and that this requires the recognition of same-sex marriage (opinions 2, 3, 6, 7 and 8 of OC-24/17). In turn, OC-23/17 is interesting for several reasons, including the opinion that the right to a healthy environment is an autonomous right that may be directly invoked (paras. 55, 57) and protected through different human rights (para. 64); and that has individual and collective dimensions (para. 59), the violation of which has a correlated negative impact on other human rights as the rights to life and integrity (para. 66). Quite remarkably, the Court argued that “unlike other rights, it also protects elements of the environment, such as forests, rivers, seas and others, being them legal interests themselves, even if there is no certainty or evidence of a risk against individuals […] the Court notes the trend to recognize legal personality and, accordingly, rights of the nature both in judgments and constitutional systems” (para. 62). While there is much more to discuss about the content of those opinions of the Court, in this post I will focus on the politics behind them.

In this post, I argue that the rationale behind the request for the advisory opinions made by Costa Rica (in regard to OC-24) and Colombia (concerning OC-23) reflects the desire to achieve policy objectives by both states –of a domestic nature in the Costa Rican case, and in relation to international disputes in the Colombian one. In this sense, the request of the opinions corresponds to a process of interaction with international law aimed at facilitating certain political objectives, confirming what McDougal and Lasswell said frequently happens in the international arena.

Before exploring the specific goals pursued by Colombia and Costa Rica, it is important to consider why the authorities of both states chose the forum of the Inter-American Court. In my opinion, this election was no mere coincidence, but rather a calculated gambit that took into account why the way in which the Court usually operates made it quite likely that their objectives could be achieved.

In relation to advisory opinion OC-24, it has been noted before that the Inter-American Court of Human Rights tends to view cases in black and white terms, rejecting nuanced approaches like those based on margin of appreciation doctrines that could permit different state options provided that certain boundaries are respected. Instead, in controversial and culture war cases the Court has acted under the understanding that there is always one right answer. Perhaps this way of thinking can be explained in historical terms, considering that the first cases the Court had to examine were related to heinous abuses in which there were clear violations against life, integrity, or other rights, especially in the context of authoritarian governments in the region. Concerning those cases, no nuances or margins are appropriate, and the Court earned a well-deserved reputation for standing up to abusive regimes and offering a “last hope” of protection and remedies to victims whose rights were trampled domestically. Perhaps it now considers such a role to be appropriate in relation to all cases and rights.

On the other hand, in relation to OC-23, the Court had held before, in advisory opinion OC-16/99 on “Consular Assistance”, that it “cannot be restrained from exercising its advisory jurisdiction because of contentious cases filed with the International Court of Justice” (para. 61). In making this holding, the Court emphasized its autonomy vis-à-vis other international Courts and its mission of furthering the protection of human rights in the Americas. This confirms the trend of the Court to be bold and seize all matters presented to it out of the belief that its action is often crucial and that, without it, rights could be unprotected in the region. This explains why the Court is both willing to make a decision in all cases instead of adopting more open approaches, and why it has promoted its idea of a “control of conventionality”, in accordance to which states subject to its jurisdiction are obliged to implement its case law even regarding contentious cases they are not parties to and in advisory opinions. The compatibility of such doctrine with the formal sources of international law in the region has been questioned by some, but can be explained as coherent with the perception the Court may have of itself as some sort of regional “constitutional” body.

Aware of this, Costa Rican and Colombian authorities opted to ask the Court certain questions related to domestic and international debates or controversies they are embroiled in, relying on the likelihood that they would obtain an answer –and a favorable one at that. Yet, there are risks of a backlash and that the Court’s own prestige could be undermined in the region, as has been explained by others, even some who agreed with the substance of the opinions. There is always the ghost of the Venezuelan withdrawal looming over.

Culture wars and OC-24/17

Regardless of one’s stance in relation to the issues debated in the advisory opinion on same-sex couples, a very striking thing when comparing it to other supervisory bodies (see the case of Schalk and Kopf v. Austria) is how clearly the Court said that states must recognize homosexual marriage “in order to ensure the protection of all the rights of families constituted by same-sex couples” (opinion No. 8). Yet, such an opinion is not surprising in light of the Court’s own practice. Precisely such an expected outcome is what the government of Luis Guillermo Solís in Costa Rica had in mind when Vice-president Ana Helena Chacón formally presented the request of the advisory opinion to the Court back in 2016. In his press release after the opinion was published, the president welcomed the opinion and reminded how “during my campaign I committed to ensure same-sex couples the same civil and economic rights that heterosexual couples enjoy”. Thus, facing domestic opposition to this policy, he may have considered that international action would facilitate its achievement. In fact, opposition candidate Antonio Álvarez said that the request had the intention of circumventing parliamentary debate.

Curiously, Costa Rica, which hosts the Court’s facilities and has always been supportive of it, now has a candidate promising to ignore the opinion leading in the polls. This case thus confirms how interaction with international law is a strategy that some pursue when facing domestic difficulties, and how this may raise questions of allocation of power in multi-level governance.

Comprehensive international litigation strategies and OC-23/17

In the case of the environmental-related advisory opinion OC-23, one first factor that merits analysis is who made the request. In this regard, it turns out that the state that presented the questions was Colombia, which is involved in several disputes with Nicaragua before the International Court of Justice (see here and here), and which claims that the interoceanic channel that Nicaraguan authorities desire to build, and other actions, could have harmful environmental impacts on Colombian waters and impact its population. Interestingly, in addition to presenting questions related to environmental impact and human rights before the IACtHR, the Colombian agents submitted four counter-claims against Nicaragua before the ICJ, the first two of which had clear environmental implications insofar as “[t]he first was based on Nicaragua’s alleged breach of a duty of due diligence to protect and preserve the marine environment of the south-western Caribbean Sea; the second related to Nicaragua’s alleged breach of its duty of due diligence to protect the right of the inhabitants of the San Andrés Archipelago to benefit from a healthy, sound and sustainable environment”. In the end, in November 2017 the ICJ declared those two claims inadmissible. Yet, it is clear that the state of Colombia considered that, had they been declared admissible, the opinion of the IACtHR –which foreseeably would be favorable to environmental human rights concerns, as it indeed was— could increase the chances of having a successful case before the ICJ, considering for example that ICJ judge Cançado Trindado is a former IACtHR judge and would likely agree with the IACtHR’s opinion. In fact, Guatemala pointed out the coincidence between elements raised in the request of the advisory opinion and the dispute with Nicaragua (para. 25 of OC-23/17). Nonetheless, the Inter-American Court of Human Rights confirmed that its advisory function was not hindered by the presence of cases before the ICJ (para. 26 of OC-23/17). That being said, in its advisory opinion the IACtHR decided to address aspects beyond those submitted by Colombia, in the sense that it would not only explore legal issues on the environment, human rights and the sea, as Colombia intended, but rather its opinion would be broader ratione materiae, encompassing environmental aspects in other areas and aspects (paras. 27, 35 of OC-23/17).

Conclusion

A disaggregated analysis of state action can reveal how resorting to like-minded international authorities will increase the possibility of accomplishing policy objectives, thus lowering the obstacles posed by domestic or international opposition. The same can be said of activists and not only authorities. The IACtHR has been a very positive actor in the Americas, especially in the face of corrupt and abusive regimes, and its bravery has permitted victims to find reparations and protection they could not find otherwise. Still, there is a risk of a backlash from actors that challenge the findings of the Court, and such reaction –if it takes place— could be translated into ignoring what the Court says, further challenging its legal reasoning or, worse, withdrawals from the American Convention on Human Rights, which would deal a severe blow to human rights in a region in great need of reliable international judicial mechanisms of protection. To avoid this, the Court must directly engage in, and think more seriously about, such complex matters. On the other hand, its handling of Colombia’s question in relation to OC-23/17 was wise because, by dealing with matters beyond the narrow ones presented by Colombia, it could not be accused of being a “puppet” favoring its strategy, and actually came up with the presentation of more generally applicable standards and arguments on human rights and environmental law that, if observed by the OAS states, may positively contribute to the prevention of and responses to environmental degradation.

Suggested citation: 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/

[1] Some of the quotes here were translated by the author.