Resisting the Resistance: Dialogues Between the Inter-American Court of Human Rights and the Higher National Courts (The Cases of the Dominican Republic and Argentina)

Abstract

The Inter-American Court of Human Rights is considered a relevant and influential legal voice, and its judgments are cited worldwide as they secured the protection of human rights in Latin American countries. However, a strong resistance to the compliance with its judgments and orders is taking place in the Americas. This work analyzes how two specific national courts (the Constitutional Tribunal of the Dominican Republic and the Supreme Court of Argentina) directly threatened the authority of the Inter-American Court through their decisions. This work engages with the theoretical conceptualizations (legal formalistic, normative, sociological and compliance-based approaches) that seek to explain how international courts acquire, exercise and enhance authority and legitimacy. The thesis adopts the “de facto authority model” proposed by Alter, Helfer and Madsen to explain how the Inter-American Court’s authority fluctuates according to the context of the cases and the audience it addresses. The work also explains the concept of “transnational judicial dialogue” and how it became more complex and challenging in the era of the “judicialization of international relations”. Following Huneeus’ pioneering work, this article reflects on the difficulties that transnational judicial dialogues face in Latin America where judges, prosecutors and judicial operators are the main actors resisting the rulings of the Inter-American Court. The type of interactions through orders of compliance and public hearings that the InterAmerican Court initiated with the Constitutional Tribunal of the Dominican Republic after the ruling of the cases “Yean & Bosico” and “Expelled Dominicans and Haitians v. Dominican Republic”, and the dialogue that began after the Supreme Court of Argentina decided the Fontevecchia case are analyzed in detailed. Methodologically, this works emphasizes the discursive strategies and judicial reasoning deployed by the Inter-American Court (key features for the Law and Literature movement) and a comparative analysis.