Abstract
International courts (ICs) with human rights mandates have recently faced instances of backlash aiming to curb their authority. Taking cues from research on the functioning of ICs, we argue that ICs will be resilient—able to maintain their competences and authority in the face of backlash—to the extent that they are embedded in domestic “legal complexes.” Our framework identifies key sites of embeddedness and stresses the importance of synergies between them, including: (1) the incorporation of treaties into domestic law; (2) independent courts; (3) acceptance and use of IC jurisprudence by domestic judiciaries; (4) strong national human rights institutions; (5) incorporation of international law into legal training and research; and (6) the presence of NGOs that rely on ICs. This article explores resilience in the Inter-American System of Human Rights. First, we discuss and map the state of each source of resilience across Latin America. Second, we show how the activation of sources of resilience helped preserve the integrity of Inter-American institutions in the face of backlash orchestrated by several countries between 2011 and 2014.
Highlights
In recent years, numerous national governments have attacked international courts (ICs) with a human rights mission.1 Burundi withdrew from the International Criminal Court (ICC), the Philippines is in the process of withdrawing, and Gambia, Kenya, and South Africa have threatened to follow (Alter, Gathii and Helfer 2016)
We explore the framework in the context of the Inter-American System of Human Rights (IASyHR)
We focus on the following types of interconnections between an IC, states under its jurisdiction, and domestic actors and constituencies: (1) incorporation of international treaties into domestic law; (2) presence of independent courts; (3) acceptance and use of IC jurisprudence by domestic judiciaries; (4) presence of strong accountability agencies supportive of human rights, in particular, national human rights institutions (NHRIs); (5) incorporation of international law into legal training and academic research; and (6) presence of civil society organizations (CSOs) that rely on ICs and their jurisprudence (Soley and Steininger 2018, 254)
Summary
Numerous national governments have attacked international courts (ICs) with a human rights mission. Burundi withdrew from the International Criminal Court (ICC), the Philippines is in the process of withdrawing, and Gambia, Kenya, and South Africa have threatened to follow (Alter, Gathii and Helfer 2016). Actors and institutions of the legal complex are, by contrast, more likely to provide autonomous and stable sources of resilience Because of their presence inside the state or their close connections to it, these actors can routinize a drive toward acceptance of and compliance with international human rights obligations, or at least undermine from within the state’s resolve to pursue backlash. Countries with a more robust constitutionalization of international human rights law—Argentina, Colombia, Costa Rica, and Peru—feature more citations This indicates that formal institutional change may induce more far-reaching changes in informal interpretative practices, turning high courts in these countries into more reliable sources of resilience. NHRIs play a similar role in the European Human Rights System (Haglund and Welch 2020)
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