The Joint Declaration to the Inter-American System of Human Rights: Backlash or Contestation?

—Melina Girardi Fachin (Universidade Federal do Paraná); Bruna Nowak (Universidade Federal do Paraná)

In April 2019, Argentina, Brazil, Chile, Colombia and Paraguay issued a joint declaration to the Inter-American Commission on Human Rights with critical observations directed to the Inter-American System of Human Rights. The states reaffirmed their commitment to the American Convention on Human Rights and stated that the joint declaration aimed to improve “the operation, the functioning, and the efficacy of the System.”

If, in principle, the declaration seemed to reaffirm the basis of the Inter-American System, its content has generated apprehension and outright rejection. This is even more true because the five signatory states are currently governed, after recent elections, by right-wing or even extreme right wing leaders, following periods of leftist governments.

The declaration evoked the principle of subsidiarity, which sustains the conditions for admissibility of a petition before the Inter-American System. It also urged the Commission and the Inter-American Court of Human Rights to respect the “legitimate space of autonomy” of the states in assuring the rights and guarantees of the American Convention in accordance with their own democratic processes.

The declaration also referred to the necessary reduction of the time a petition takes to processed before the Inter-American Commission. Curiously, the states also called the attention for the strict application of the sources of International Human Rights Law in the decisions of both the Court and the Commission.

The recognition of a “margin of appreciation” of the states in the fulfillment of their conventional obligations was also mentioned. In addition, the declaration highlighted the importance of considering the political, economic, and social realities of the states whenever recommendations and remedies are imposed.

Despite having a tone favorable to dialogues between national and supranational systems, the declaration seemed to seek the strengthening of internal autonomy, as well as the reduction of the Inter-American System’s role in the defense of human rights. Therefore, the statements defended by the declaration sounded like a warning, heightened by the significant political changes that have recently taken place in Latin America, where a nationalist and populist discourse, with underestimation – or even rejection – of minorities has gained ground.

It is clear that the content of the declaration aims to challenge the course of action and recent jurisprudence of the Inter-American System. Many have said that it represents a dangerous form of backlash against the active role of the Inter-American System, especially its Court. We disagree and label the declaration more a form of contestation than backlash.

Ximena Soley and Silvia Steininger elaborate a spectrum of the reactions of the states in relation to international courts. On the one hand, there are resistance and backlash, practices that challenge international institutions as a whole. On the other hand, there are objection and contestation, practices directed at the application of certain norms and the delivery of specific judgments. The declaration, in our view, falls in the latter camp.

Backlash would include persistent and systematic criticism against a court, or consistent refusal to enforce its decisions. At its most extreme, it could entail the denunciation of the treaty that serves as basis to the respective international court. Constitutional Law scholars also define backlash as a threat to the authority and control exercised by courts when they intend to promote changes in the status quo.

The Inter-American System has become a stronger, more interventionist institution over time. Its robust exercise of authority, far-reaching interpretations, and the effects attributed to its case law and remedial orders are factors that have instigated criticism. The System’s transformative potential of the status quo results in contestations and objections by the states, such as the ones presented in the declaration.

The suggestions made in the joint declaration are unexceptional. It is a commonplace to demand respect for internal legal orders by an international court. In the same sense, the requirement of proportionality in the application of remedies is not unusual within the Inter-American System, and neither is the principle of subsidiarity, a corollary of international jurisdiction.

Therefore, the declaration itself is not a form of backlash. Backlash requires systematicity and consistency, characteristics that cannot be found in the declaration alone. Considering the spectrum proposed by Soley and Steininger, the declaration could be considered resistance, since it is a form of criticism directed to the institution with the purpose to reform it while remaining part of the System.

If one looks at the practical level, considering other reactions of the signatory states, the argument of backlash also loses its power. Colombia constantly implements the decisions of the Commission and the Court. Argentina is an important participant of the System, despite the polemic contestation in the Fontevecchia and D’Amico case.  Brazil oscillates between complete rejection (Belo Monte case), partial fulfillment of its obligations (Gomes Lund) and total implementation of decisions (amicable solution in the case of Meninos Emasculados do Maranhão). Recently, the Inter-American Court decided, on the case of Arrom Suhurt and others v. Paraguay, not to condemn the State responsible for the violations attributed to it. This (questionable) decision was preceded by protests in Paraguay.

It is not our purpose here to defend the content of the joint declaration, but merely to point out that resistance is part of the necessary dialogue between different levels of human rights protection. Here, dialogues are understood as conversations between domestic and international courts, which presuppose openness and reciprocity in favor of the exchange of experiences and decisions.

The most concerning subject evoked by the signatory states refers to the margin of appreciation, a doctrinal figure that is very important to the European System of Human Rights, but has been avoided by the Inter-American Court. Due to the democratic deficit in Latin America, the Court adopts a maximalist model of adjudication of human rights, leaving little or no space for the national authorities. Therefore, it is possible to understand why the states claim the observance of the principle of subsidiarity.

Subsidiarity and deference might play a prescriptive role, which means more self-restraint on the part of the Inter-American Court and more consideration of the national perspectives. The problem is when this margin of deference is used as an escape to justify the uncritical inobservance of international decisions. Balance is required. More than that: willingness to establish dialogue is necessary from both sides.

Indeed, dialogues are necessary so that criticism does not turn into backlash. As we know, conflict in the extreme can even lead to the withdrawal of the state from the System, as occurred in Venezuela. It must not be forgotten that dialogues can lead to the confrontation of ideas, and this confrontation can contribute to a more robust protection of human rights over time.

Suggested citation: Melina Girardi Fachin & Bruna Nowak, The Joint Declaration to the Inter-American System of Human Rights: Backlash or Contestation? Int’l J. Const. L. Blog, Dec. 12, 2019, at: http://www.iconnectblog.com/2019/12/the-joint-declaration-to-the-inter-american-system-of-human-rights-backlash-or-contestation/