Alexandra Huneeus

Rejecting the Inter-American Court: Judicialization, National Courts, and Regional Human Rights

This book chapter generates theories about when high courts comply with Inter-American Court rulings. In over one-half of the rulings it has issued since it began its work in 1979, the IACtHR issues orders that require action by national courts. Further, it has increasingly taken on a role of reviewing whether national practices of judicial independence and due process comply with the American Convention on Human Rights. The chapter seeks to discern the factors that influence how national high courts respond to this incursion into their turf, and whether they act as a partner in regional legal integration by complying with the IACtHRs decisions. It examines recent instances in which the high courts of Argentina, Chile, and Venezuela reject a ruling of the Inter-American Court.

Human Rights between Jurisprudence and Social Science

This article argues that human rights law – which mediates between claims about universal human nature, on the one hand, and hard-fought political battles, on the other – is in particular need of a richer exchange between jurisprudential approaches and social science theory and methods. Using the example of the Inter-American Human Rights System, the article calls for more human rights scholarship with a new realist sensibility. It demonstrates in what ways legal and social science scholarship on human rights law both stand to improve through sustained, thoughtful exchange.

Introduction to Symposium on Devika Hovell “Due Process in the United Nations”

Devika Hovell’s “Due Process in the United Nations” returns to the familiar but vexing question of what mechanisms could best provide for UN accountability.1 Her contribution, as she describes it, is to start with first principles. The article opens by observing that we can neither assess nor try to improve due process mechanisms if we lack a theory of why we need them in the first place: What values underlie the calls for greater transparency and accountability at the United Nations? Why, exactly, should the United Nations provide greater due process at the expense of its budget and agility? The answer, moreover, cannot be assumed to be the same as it is for domestic governments, since the United Nations is a sui generis actor working in an entirely unique context. Hovell’s argument then unfolds in three steps. First, she lays out and compares three possible value-based justifications of due process. Second, she links each justification to a different type of existing due-process mechanism. Thus, for example, if we view due process as a way of ascertaining that positive treaty law, as ratified, be followed accurately, then it would make sense to put in place an international judicial mechanism. On the other hand, if we value due process as a way to ascertain that the interests of those subject to UN authority be given voice, then a mix of regional and national courts may be a better mechanism. But Hovell’s analysis is not only deductive. She acknowledges that different real world contexts will call for different justification-mechanism pairings. Her final step, then, is to explore how each type of due process mechanism has fared in the context of two case-studies: the UN Sanctions regime and the Haiti Cholera Case. She concludes that a less judicialized and more open mechanism equipped to consider and advance the public interest, such as an ombudsperson, is the best fit for the current UN context. Hovell’s argument thus moves from ought to is and back again, striving for a normative analysis that is sensitive to empirical context. By contrast, the three essays in this symposium move in the opposite direction, from the is to the ought. The essayists each examine case studies that are similar to or the same as Hovell’s, but they provide different interpretations of the facts on the ground, thereby challenging Hovell’s account of UN practice and, ultimately, her prescription, each from a different angle. For Antonios Tzanakapoulos, the problem with Hovell’s argument is her failure to acknowledge that a fairly robust regime of due process has already developed over the past decades.2 Moreover, the manner in which it developed belies her argument. He reinterprets the UN sanctions regime to show not only that it has come a long way, but also that it is the result of litigation before diverse national and regional courts that created pressure on the United Nations to put in place, and then fine-tune, the still-evolving ombudsman regime.

Introduction to Symposium on the Constitutionalization of International Law in Latin America

Had one been pressed, in the mid-1980s, to characterize Latin American approaches to constitutional law and international law, the terms “sleepy” and “sovereigntist” might have come to mind: “sleepy” because judicial review was rare; and “sovereigntist” because ever since declaring independence in a world of colonial powers, Latin American states had asserted a robust version of sovereignty (enshrined, for example, in the Montevideo Convention on the Rights and Duties of States of 1933) and, accordingly, a dualist relation between domestic and international law. Today, these terms no longer fit. It is still possible, and perhaps even easy, to find a lower judge in rural Mexico bent on strictly applying domestic law alone, or a high court judge in Caracas who sidelines international human rights law under the banner of sovereignty. But if one considers constitutional texts and the practice of the region’s judiciaries overall—including high court judges in Bogotá, Brasilia, Buenos Aires, Lima, Mexico City, San Jose, and Santiago—it is clear that the approach to law in general, and to constitutional and international human rights law in particular, has been decisively transformed. The changes began in 1988 toward the close of the Cold War, when a wave of new constitutions1 and interpretive theories began to usher in U.S.-style judicial review (whereby courts claim power to strike down legislation under higher-ranked law).2 Latin American rights review, however, developed a dimension absent in U.S. practice. Not only did courts in the region strike down legislation under national constitutions, they began to do so under international human rights treaties as well. Constitutional review became a window through which judges could access, interpret, and directly apply international treaties ratified by the state. Today, while those in the United States are barred from suing under human rights treaties, many Latin Americans have

Treaty Exit and Latin America's Constitutional Courts

Constitutional courts in Latin America have used judicial review to enhance the relevance of international law in recent years. Some scholars even speak of a growing “constitutionalization of international law” in the region. But these domestic courts can also act as gatekeepers that blunt or entirely deflect the domestic impact of international law. This essay explores three recent episodes in which constitutional courts joined or led efforts to escape treaty obligations: the Venezuelan Supreme Courts judgment urging the Chávez Administration to denounce the American Convention of Human Rights on constitutional grounds, which Chavez then did in 2012 (a court-inspired treaty exit); the Colombian executives 2013 petition to have Colombias acceptance of the International Court of Justices (ICJs) jurisdiction under the Pact of Bogotá declared unconstitutional (a court-legitimated treaty exit); and the Dominican Republic (DR) Constitutional Tribunals 2014 judgment holding that the DRs acceptance of the jurisdiction of the Inter-American Court of Human Rights (IACtHR) had been unconstitutional (a court-led treaty exit).

Introduction to Symposium on the Colombian Peace Talks and International Law

In September and October of 2016, Colombians witnessed a series of political events that defied their belief. First, the Colombian Government and the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (FARC—EP), signed to great fanfare a historic peace agreement finalizing Colombia’s armed conflict. The Un Secretary-General, the U.S. Secretary of State, and dozens other top diplomats and heads of states gathered in Cartagena for an emotional signing ceremony, symbolically ending a fifty-year armed confrontation that, according to the Colombian Center for Historic Memory, killed more than two hundred thousand people, 80 percent of which were noncombatants.