The Supreme Court of Chile as an Inter-American Tribunal

–Jorge Contesse, Assistant Professor of Law, Rutgers Law School

The Grand Chamber of Chile’s Supreme Court recently declared that criminal convictions against indigenous leaders obtained under Chile’s terrorist statute “have ceased to have effects,” as direct result of a decision by the Inter-American Court of Human Rights.^[1]  In 2014, the Inter-American Court found that the convictions of such indigenous leaders had violated several human rights of petitioners,^[2] and ordered the state to adopt “all the administrative, judicial, or any other type of measures required to nullify all the effects of the criminal judgments.”^[3] 

Chile’s Supreme Court’s decision is unprecedented.  It is the first time that the Grand Chamber explicitly endorses the view that “national judges are part of the inter-American human rights system,”^[4] a position that the Inter-American Court has fervently advanced, for instance, through the creation of doctrines such as conventionality control.^[5]  However, the way the Inter-American Court has articulated such doctrines, purporting to exercise constitutional authority over states, is problematic, as it is for domestic authorities, not international courts, to decide on the rank and place of international law at the domestic level.^[6]  That is precisely what the Supreme Court has done in this case.

The Grand Chamber’s decision originates from a request by the Ministry of Foreign Affairs to the Supreme Court seeking its collaboration to comply with the Inter-American Court-ordered remedy.  The Chilean court promptly obliged, convening to hear the different parties’ views on how to implement the decision: the Public Prosecutor, the Office of the Public Defender, the Ministry of Interior, a private forestry company located where the incidents took place, the Center for Justice and International Law and two attorneys appeared before the Grand Chamber.  All but the Ministry of Interior supported the Supreme Court’s decision to implement the Inter-American Court’s order.^[7] 

Like most Latin American states, Chile is a monist jurisdiction, where domestic judges may apply international human rights law as domestic law.  The Chilean Constitution proclaims that all state organs have “a duty to respect and promote” human rights (Article 5, §2).  However, Chilean law does not stipulate a specific mechanism pursuant to which judgments by international courts may be implemented.  The Supreme Court’s Grand Chamber addressed this issue by noting that courts have a duty to provide remedies whenever an individual’s rights are at risk.^[8]  The Grand Chamber added that courts may never waive their responsibility to provide redress on the grounds of the lack of a specific mechanism.  According to the court, to do so would inevitably result in a “denial of justice to victims who legitimately expect that the decision be implemented in their own country.”^[9]  Finally, insofar as domestic courts have the power to invalidate criminal convictions obtained in violation of an individual’s human rights, the Grand Chamber noted that the Inter-American Court’s order—to nullify the effects of the criminal judgments—is consistent with both international law and Chilean domestic law.^[10]

The Chilean court’s decision deserves praise because it affirms a domestic court’s authority to declare itself an inter-American tribunal.  In so doing, Chile’s highest court has not only enhanced its own authority, but also that of the Inter-American Court’s.  In the current context of resistance against international institutions, the court’s unprecedented decision is welcomed news.

Suggested Citation: Jorge Contesse, The Supreme Court of Chile as an inter-American Tribunal, Int’l J. Const. L. Blog, May 31, 2019, at: http://www.iconnectblog.com/2019/05/the-supreme-court-of-chile-as-an-inter-american-tribunal

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^[1] Supreme Court of Chile, Decision AD 1386-2014 (May 16, 2019).

^[2] Inter-American Court of Human Rights, Case of Norin Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile, Merits, Reparations and Costs (May 29, 2014) at 152-53.  Disclosure: I served as expert witness on behalf of the Center for International Law and Justice, CEJIL.

^[3] Norin Catrimán v. Chile, ¶ 422.

^[4] Supreme Court of Chile, Decision AD 1386-2014, ¶ 9 (May 16, 2019).

^[5] Pursuant to this doctrine, all national judges must directly apply the American Convention on Human Rights and the Inter-American Court’s interpretations of the Convention.  I have discussed the implications and challenges of such doctrine in The Final Word? Constitutional Dialogue and the Inter-American Court of Human Rights, 15 Int’l J. Const. L. 414 (2017).

^[6] See Jorge Contesse, The International Authority of the Inter-American Court of Human Rights: A Critique of the Conventionality Control Doctrine, 22 Int’l J. Hum. Rts. 1168 (2018).

^[7] Supreme Court of Chile, Decision AD 1386-2014, ¶ 5 (May 16, 2019).  The Chilean Executive’s position is inconsistent: on the one hand, through its Ministry of Foreign Affairs, it sought to the Supreme Court requesting its collaboration to comply with the Inter-American Court’s order, while, on the other hand, through its Ministry of Interior, it adopted the position that the Supreme Court lacked the authority to implement the decision.

^[8] Supreme Court of Chile, Decision AD 1386-2014, ¶ 10 (May 16, 2019).

^[9] Supreme Court of Chile, Decision AD 1386-2014, ¶ 12 (May 16, 2019).

^[10] Supreme Court of Chile, Decision AD 1386-2014, ¶ 14 (May 16, 2019).