The Inter-American Court of Human Rights and the Interpretive Method of External Referencing: Regional Consensus v. Universality

Abstract

The Inter-American Court of Human Rights has consistently adopted a universalist approach to treaty interpretation, reflected in its evolutive interpretation of the American Convention on Human Rights. An overview of the most important cases in which the Court clarifies this approach shows that it places its interpretation methods within the framework of the rules on treaty interpretation, codified in the 1969 Vienna Convention on the Law of Treaties. The international human rights context which the Court takes into account in its interpretation process is, however, not limited to external binding human rights treaties, but includes soft law instruments as well as treaties not ratified by the Member State in question. Similar trends of external referencing identified in the jurisprudence of the European Court of Human Rights have raised important questions regarding its legitimacy, with the European Court being accused of “cherry picking” and judicial activism. This chapter therefore analyses the Inter-American Court’s use of external sources and discusses the same legitimacy questions in light of the Inter-American Court’s interpretive practice, taking into account the specific provisions on treaty interpretation in the American Convention on Human Rights and the different role “regional consensus” plays in the Inter-American human rights system. In addition, the chapter discusses the positive aspects of external referencing, namely its integrating effect, in order to determine whether the advantages of the defragmentation of human rights norms and the Court’s striving for the most effective protection of human rights outweigh the legitimacy concerns.