—Jorge Contesse, Assistant Professor of Law, Rutgers Law School
Argentina has one of the strongest monist constitutional practices in Latin America—a region where incorporation of international human rights law into domestic constitutional arrangements is already the norm. In 1994, its legislature granted constitutional status to a number of international human treaties. A decade later, relying on the Inter-American Court of Human Rights’ interpretation of international norms, the Supreme Court of Argentina ruled that its domestic amnesty law, adopted in the mid-1980s by a military junta but now in violation of Argentina’s international treaties, was null and void. In this way, Argentina served as an example to its peers in its commitment to the inter-American human rights system.
On February 14, 2017, however, the Supreme Court handed down a decision that could send shock waves into the field of regional human rights law. The ruling concerned the implementation of a 2011 Inter-American Court of Human Rights’ decision against Argentina, in which the Court found the state in violation of the American Convention on Human Rights. The reason? In 2001, Argentina’s Supreme Court affirmed a civil judgment against two publishers, Fontevecchia and D’Amico, for running stories about an unacknowledged child of then-president Carlos Menem. The journalists filed a case against Argentina before the inter-American human rights system. Ten years later, the Inter-American Court ordered the state to “revoke the decision in its entirety.” Argentina’s executive branch requested the Supreme Court to comply with the Inter-American Court’s remedy—that is, to revoke its 2001 ruling.
The Supreme Court, however, declined to do so. It reasoned that the Inter-American Court lacked the authority to order the revocation of a domestic judgment, as doing so exceeded its powers under the American Convention. Legal scholars and commentators quickly scrutinized the Court’s judgment. Human rights organizations decried the decision, claiming that the Court had “unlatched” Argentina from the inter-American human rights system. And a current member of the Inter-American Court, an Argentinean national who also served on the country’s Supreme Court, rebuked the decision in the press.
These criticisms suggest that Argentina, a country once so supportive of the international system, is now abruptly compromising it. Yet, to fully understand the reasoning and impact of Argentina’s Supreme Court’s decision, we must consider its crucial aspects in greater detail.
First, the Supreme Court effectively reigns in its otherwise progressive approach toward the incorporation of international law. In a critical passage, the Court declares that “it is beyond discussion that the state is, in principle, obliged to comply with decisions by the Inter-American Court pronounced in compulsory proceedings against the state.” Prior to this decision, compliance with international decisions was mandatory, period. Only now does the court appear to articulate some space between theory and practice which would allow domestic noncompliance with decisions from the Inter-American Court. How wide that space will be remains to be seen.
Second, the Argentinean Court’s decision to review the jurisdictional powers of the Inter-American Court is itself astonishing, even aside from its surprising conclusion. By purporting to review the powers of an international tribunal, the Supreme Court of Argentina, a domestic body, in fact places itself above the international system. The Court thus goes further than merely “unlatching” Argentina from the system of human rights law enforcement, as critics have observed.
Third, the Argentinean Court’s decision goes to the core of one critical issue. It resists the Inter-American Court’s order to “revoke” a decision, an order that typically only superior courts may give to lower courts. Such pretension, the Argentinean Court observes, would make of the Inter-American Court a “fourth instance” or a court of cassation. But this is not the role of the international tribunal, in the Argentinean Court’s new view. Rather, in the international plane, the Inter-American Court is the final interpreter of the norms of the American Convention; with respect to domestic law, however, the final interpreter is the Supreme Court, not an international tribunal. It would violate the national constitution, the Court believed, to revoke a judicial decision merely upon order from an international tribunal.
Finally, the Argentinean Court takes issue with the nature of the Inter-American Court’s order—an important question to the implementation of regional human rights law. When an international court finds that a state has violated a regional human rights treaty, it must order the state in general terms to remedy the violation. But, does it also have to specify how the state is to so remedy the violation? This is, to be sure, what the Inter-American Court has done in its three-decade long jurisprudence—a characteristically detailed and exhaustive remedial jurisprudence.
In its decision, the Argentine Court challenges that approach. The Court’s claim is simple: the state is limited by its own political structure, and most critically its government’s separation and allocation of powers. It is of course possible to challenge the Argentinean Court’s interpretation of its constitutional powers, but the nature of this challenge raises an important question: whether or not a state should be allowed to determine, at least to some extent, its means of compliance with the general holding of an international tribunal.
In this case, the Inter-American Court was within its powers to hold that Argentina violated the petitioners’ right to freedom of expression; but it does not follow that the international Court may determine the precise means that the state must use to comply with the international court’s judgment. By ordering Argentina to revoke a judicial decision without consideration of the domestic allocation of powers, the Inter-American Court arms opponents to the Court’s judicial activism with solid grounds for critique.
Notwithstanding this potential overreaching, the Argentinean Court in its response missed a valuable opportunity to craft a viable way forward, one that honors the state’s international obligations and accords with Argentina’s domestic constitutional law. The Argentinean Court could have remanded the case back to Argentina’s executive—or maybe its Congress—requesting that they implement the tribunal’s order in a way that achieved international compliance pursuant to constitutional provisions, without violating the judicial supremacy of Argentina’s Supreme Court or domestic constitutional law (as a compliant direct revocation of its prior order would have done). Similarly, the Inter-American Court itself could and should have requested the state to remedy the violation using all domestic means at the state’s disposition, not necessarily demanding that it effect one particular remedy.
These questions of authority and enforcement are ripe at what is an increasingly critical time for the inter-American human rights system. The Argentinean Court’s decision is the latest development in a trend of growing resistance and even direct backlash from member states: in 2012, after several judgments against the state, Venezuela finally denounced the American Convention; in 2014, the Constitutional Court of the Dominican Republic ruled against its state’s acceptance of the Inter-American Court’s compulsory jurisdiction; and between 2011 and 2013, states unhappy with some inter-American decisions conducted a so-called “strengthening process” of the inter-American human rights system—in fact understood more as an effort to weaken than to enhance the system’s powers.
The Argentine Court’s decision to challenge the Inter-American Court’s authority, therefore, is emblematic of region-wide tensions, and the legal issues explored above will continue to trouble the balance of power between the international body and its member states. How the Inter-American Court reacts to the Argentine Fontevecchia decision will therefore matter significantly. It should use this contoversy as an opportunity to foster judicial engagement with domestic courts and political authorities.
Suggested Citation: Jorge Contesse, Judicial Backlash in Inter-American Human Rights Law?, Int’l J. Const. L. Blog, March 2, 2017, at: http://www.iconnectblog.com/2017/03/judicial-backlash-interamerican
 Inter-American Court of Human Rights, Fontevecchia and D’Amico v. Argentina, Merits, Reparations and Costs, Judgment of November 29, 2011, I/A Court H.R., Series C No. 238 (2011).
 Id. ¶ 105. The Court also ordered the publication of the judgment in social and official publications (¶¶ 108-110).
 National Supreme Court of Justice, Ministerio de Relaciones Exteriores y Culto s/ informe sentencia dictada en el caso ‘Fontevecchia y D’Amico vs. Argentina’ por la Corte Interamericana de Derechos Humanos, February 14, 2017.
 Víctor Abramovich, “Comentarios sobre el ‘caso Fontevecchia’”, Centro de Justicia y Derechos Humanos UNLa, Feb. 17, 2017 (available at http://cjdh.unla.edu.ar/noticia/126/comentarios-sobre-el-caso-fontevecchia) Gustavo Arballo, “La Corte Argentina frente a la Corte Interamericana: la resolución de no-cumplimiento del caso Fontevecchia,” Saber leyes no es saber derecho, Feb. 14, 2017 (available at http://www.saberderecho.com/2017/02/la-corte-argentina-frente-la-corte.html) Alberto Bovino, “Caso Fontevecchia: la incompetencia de un tribunal”, No hay derecho, Feb. 24, 2017 (available at http://nohuboderecho.blogspot.com/2017/02/caso-fontevecchia-la-incompetencia-de.html), and Roberto Gargarella, “La Corte Suprema y los alcances de las decisiones de la Corte Interamericana,” Seminario de Teoría Constitucional y Filosofía Política, Feb. 15, 2017 (available at http://seminariogargarella.blogspot.com/2017/02/la-corte-suprema-y-los-alcances-de-las.html).
 Centro de Estudios Legales y Sociales, “Las consecuencias del fallo de la Corte Suprema para la vigencia de los derechos humanos en la Argentina,” DPLF Blog, Feb. 23, 2017 (available at https://dplfblog.com/2017/02/23/las-consecuencias-del-fallo-de-la-corte-suprema-para-la-vigencia-de-los-derechos-humanos-en-la-argentina/).
 Raúl Zaffaroni, “La Corte Suprema declara su independencia del Estado,” Agencia Paco Urondo, February 15, 2017 (available at https://agenciapacourondo.com.ar/secciones/ddhh/22099-zaffaroni-la-corte-suprema-declara-su-independencia-del-estado); Zaffaroni: ‘El fallo choca hasta con el Preámbulo’, Página 12, February 19, 2017 (available at https://www.pagina12.com.ar/21115-el-fallo-choca-hasta-con-el-preambulo).
 Remarkably, the Court cites cases decided twenty years ago to buttress its claims on subsidiarity. Suprema Corte de Justicia de la Nación, Ministerio de Relaciones Exteriores y Culto s/ informe sentencia dictada en el caso ‘Fontevecchia y D’Amico vs. Argentina’ por la Corte Interamericana de Derechos Humanos, February 14, 2017, ¶ 9.
 Id. ¶ 6 (emphasis added).
 See Jorge Contesse, Contestation and deference in the inter-American human rights system, 79(2) Law & Contemp. Probs. 123 (2016).
 See Gabriela Kletzel, The Inter-American Commission on Human Rights’ new Strategic Plan: an opportunity for true strengthening, 20 Int’l J. of Hum. Rts. ___ (2017). [DOI: 10.1080/13642987.2016.1268772]
 As a court, not through op-eds or interviews by some its members, as in the criticism levied by Judge Raúl Zaffaroni (supra note 6).