Beyond Judicial Dialogue: Reference to Domestic Law by the Inter–American Court of Human Rights

Authors

Soledad Bertelsen, Columbus School of Law

Abstract

The recent freeze of U.S. funding to the Inter–American Commission on Human Rights serves as a reminder of how fragile the Inter–American System of Human Rights truly is. The effectiveness of the Inter–American institutions largely depends on their legitimacy in the eyes of the member states. This article argues how the legitimacy of the Inter–American Court can be enhanced by the language used in its judgments. The paper focuses on how references to domestic law in the case–law of the Inter–American Court can persuade states to comply with its decisions. Citations transcend the much–discussed judicial dialogue since they also reference national constitutions and legislation. At times, the Court searches for general principles of international law or subsequent practice of states relevant to the interpretation of treaties. More often, the Court merely seeks to legitimize itself and persuade member states. In either case, legitimacy is not enhanced by mere reference to national law but by an accurate invocation of it. The present paper critiques methodological problems of the practice of the Inter–American Court and presents some suggestions on how to increase its persuasiveness. The discussion will refer to the role of consensus in the regional human rights system, the countries and sources that should be cited, and the usefulness of expert witnesses and amicus curiae in finding domestic sources, among other proposals.

Recommended Citation

Soledad Bertelsen, Beyond Judicial Dialogue: Reference to Domestic Law by the Inter–American Court of Human Rights, 57 U. MIA Inter-Am. L. Rev. 1 ()
Available at: https://repository.law.miami.edu/umialr/vol57/iss1/3