The doctrine of “corpus juris internacional”

In its interpretive practice, the Inter-American Court starts with the general (Article 31 of the Vienna Convention on the Law of Treaties) and regional (Article 29 of the ACHR) rules of interpretation. In most cases, the priority is put on objectivism over voluntarism to enable evolutive interpretation on the assumption that “human rights treaties are living instruments whose interpretation must consider the changes over time and present-day conditions” (The Right to Information on Consular Assistance, para. 114). For this dynamic purpose, the Regional Court, as if behaving as the Universal Court, situates the regional Convention within the allegedly existing corpus juris of international human rights law (Tigroudja, 2010, pp. 473-474). El corpus juris internacional is, according to the San José Court, composed of both formal and material sources including decisions and opinions of international courts, views and recommendations of treaty bodies, declarations and guidelines of international organizations and expert groups etc. (I.V. vs. Bolivia, para. 168).

In interpreting the regional instrument, Inter-American judges have reluctantly avoided to rely on regional consensus among States Parties. This is because “[s]etting international standards by reference to actual national practice would risk the adoption of very low targets” (^{Neuman, 2008}, p. 107). To quote its wording: “the fact that this is a controversial issue in some sectors and countries, and that it is not necessarily a matter of consensus, cannot lead this Court to abstain from issuing a decision, since in doing so it must refer solely and exclusively to the stipulations of the international obligations arising from a sovereign decision by the States to adhere to the American Convention” (Atala Riffo, para. 92). In adopting evolutionary interpretation, the San José Court thus causes the “sensible erosion of the principle of sovereign equality” by shifting the centrality from individual State consent to universally accumulated practices (^{Pascual Vives, 2014}, pp. 133-134).

Consequently, in expanding regional criteria in light of universal materials, the IACtHR attaches more weight to universal consensus than regional consensus. In line with the concept of corpus juris internacional, the San José Court emphasizes opinio juris communis, namely, “the expression of the universal juridical conscience through the observance, by most of the members of the international community, of a determined practice because it is obligatory” (Baena-Ricardo, para. 102). Judge Antônio Augusto Cançado Trindade explains that universal juridical conscience may be practically observed “in the elaboration of adopted texts of international treaties, in the proceedings before international tribunals and in international case-law, and in the works of international legal doctrine” (cf. 2010, p. 139; see also ^{Negishi, 2017}b). To justify its evolutionary interpretive practice beyond the regional framework, “the IACtHR seems to imply that it draws legitimacy not from the States Parties, but from external stakeholders, and an abstract idea of human rights and human dignity” (^{Lixinski, 2017}, p. 94).

The doctrine of “control de convencionalidad”

The San José Court is getting much more like a constitutional court by inviting itself into the member States’ legal systems in order to force them to conform to Convention standards (^{Hennebel, 2011}, p. 71-76). Such a constitutional role becomes evident especially when the IACtHR launched the concept of control de convencionalidad: “When a State has ratified an international treaty such as the American Convention, the judges are also subject to it; this obliges them to ensure that the effet util of the Convention is not reduced or annulled by the application of laws contrary to its provisions, object and purpose. In other words, the organs of the Judiciary should exercise not only a control of constitutionality, but also of ‘conventionality’ ex officio between domestic norms and the American Convention; evidently in the context of their respective spheres of competence and the corresponding procedural regulations” (The Dismissed Congressional Employees v. Peru, para. 128; see also ^{Negishi 2017}a, 2017c).

The San José Court’s attitude seems problematic because the principle of subsidiarity literally means the negative function to limit the intervention of international instance. The conventionality control doctrine rather appears to restricting national margin of appreciation in that “the judiciary must implement a narrow conventionality control, where the only discretion it has is to ascertain which cases fall in the same category as the one considered by the IACtHR” (^{Ruiz-Chiriboga, 2010}, p. 205). In particular, “considerations of subsidiarity play a fairly small role in the IACtHR’s remedial practice” since the Court “feels free to select remedies over the objection of the respondent state” (^{Neuman, 2013}, pp. 363-365 and 371-374).

This does not mean, however, that the principle of subsidiarity negates the conventionality control doctrine; rather such a “dynamic and complementary control” has been established between domestic authorities who have the primary obligation and the international subsidiary instance (The Santo Domingo Massacre v. Colombia, para. 143). In fact, the positive dimension of subsidiarity (^{Dulitzky, 2015}) functions to centralize the competence toward human rights courts to discover underlying structural problems, indicate particular measures for rectifying those problems, and, if necessary, pierce the veil of “the state” to designate the liable state organs:

Figuratively speaking, doctors are no longer limited to examining patients’ conditions just by touching their skin and telling them their disease’s name. When patients fail to recover by themselves, medical experts then identify the affected areas almost exactly, prescribe drugs to completely eliminate their sources, and, if the situation demands it, section their bodies to directly encourage individual body organs pertaining to the identified causes (^{Negishi, 2016}, p. 149).

Amnesty in peace process: Gelman v. Uruguay

The first example Gelman is the enforced disappearance case in Uruguay within the scheme of la Operación Cóndor. In transiting from the military regime to a constitutional democratic system, the Uruguayan Parliament in 1986 promulgated the Expiry Law to grant amnesty to those responsible for such crimes. La Ley de Caducidad was publicly supported through the exercises of direct democracy in 1989 and 2009.

Against this background, the IACtHR rendered judgment on merits on 24 February 2011. The Gelman ruling was slightly different from precedents regarding self-amnesty in that the Expiry Law in question allegedly gained democratic legitimacy. For the San José Court, the primary mission was to defend its individual-oriented case-law from the risk of the majoritarian rule:

The fact that the Expiry Law of the State has been approved in a democratic regime and yet ratified or supported by the public, on two occasions, namely, through the exercise of direct democracy, does not automatically or by itself grant legitimacy under International Law. [...] The democratic legitimacy of specific facts in a society is limited by the norms of protection of human rights recognized in international treaties, [...] in such a form that the existence of one true democratic regime is determined by both its formal and substantial characteristics, and therefore, particularly in cases of serious violations of non-revocable norms of International Law, the protection of human rights constitutes an impassable [infranqueable] limit to the rule of majority (paras. 238 -239).

The Supreme Court of Justice of Uruguay clearly showed a sense of rebellion against the Inter-American top-down decision. In the 2009 Sabalsagaray judgment, la Corte Suprema de Justicia once disregarded the Expiry Law as unconstitutional, which la Corte Interamericana highly evaluated as “adecuado control de convencionalidad” (Gelman, 2011, para. 239). Nevertheless, the judgment on 22 February 2013 declared the unconstitutionality of Articles 2 and 3 of Law No. 18831 enacted for implementing the IACtHR judgment for violating the constitutional principle of non-retroactivity. To justify their own constitutional logic, the Uruguayan highest judges emphasized that,

[…] while it is beyond any discussion that the IACtHR is the final interpreter of the ACHR -naturally within the sphere of its jurisdiction- it cannot be denied that the final interpreter of the Constitution of the Oriental Republic of Uruguay is the Supreme Court of Justice (Supreme Court of Justice of Uruguay, 2013, Considerando III.a.).

Shortly after receiving the harsh backlash from Montevideo, the San José Court in turn issued an order on compliance with the judgment on 20 March 2013. To counter the Supreme Court’s argument distinguishing Inter-American and constitutional authorities, the bindingness of IACtHR judgments was resolutely reiterated:

According to International Law which the State has accepted in a democratic and sovereign manner, it is unacceptable that once the Inter-American Court has issued a judgment with the authority of res judicata, the domestic law or its authorities should seek to leave it without effects (Supreme Court, 2013, para. 90).

3.2. Conflict of rights: Artavia Murillo and others v. Costa Rica

We move to the second example Artavia Murillo pertaining to the alleged human rights violations resulting from the presumed general prohibition of the practice of in vitro fertilization (IVF). Although IVF techniques were authorized by the 1995 Executive Decree 24029-S, it was declared unconstitutional by the Constitutional Chamber of the Supreme Court of Justice in Judgment No. 2000-02306 of 15 March 2000. The Chamber’s decision allegedly constituted the arbitrary interference in the right to private life and family in the name of the absolute protection of the right to life.

Facing such a difficult balancing task, the IACtHR in the judgment on merits on 28 November 2012 relativized the absolute protection of one of those conflicting rights supported by the supremacy of the national constitution. Thereby, it created an open circumstance for striking a proportionate balance most favorable to persons in terms of their substance (para. 259; see also ^{Negishi, 2017}a, pp. 478-479). The San José Court stepped further to find “it appropriate to indicate the way in which the sacrifice of the rights involved in this case was excessive in comparison to the benefits referred to with the protection of the embryo,” in spite of recognizing that “it [was] not necessary to make a detailed analysis of each of these requirements, or to assess the disputes regarding the declaration of unconstitutionality in the formal sense based on the presumed violation of the principle of legal reserve” (para. 273). It was then concluded that the Chamber disproportionately interfered with private and family life.

The Costa Rican constitutional judges were again in favor of the right to life in opposition to Inter-American judges. To implement the reparation measure indicated by the IACtHR, the Executive afresh issued the Decree 39210-MP-S to authorize IVF techniques. It was however declared unconstitutional by the Constitutional Chamber judgment on 3 February 2016 for violating constitutional principles of reserva de ley and democracy. More concretely, the following constitutional reason was given:

Compliance with the judgment of the IACHR [...] implies a reconfiguration of the level and scope of the right to life, as well as the definition of a new embryo protection status, in order to perform a new weighting of the protection of the other rights involved, [...], which, by virtue of the principle of reserva de ley, which governs in the matter of fundamental rights, can only be done by means of a formal law promulgated by the Legislative Assembly (Considerando IV).

So far this case also represents the confrontation between constitutional and Inter-American judges. In the order on compliance on 26 February 2016, the IACtHR valued positively the efforts made by the Executive to annul the IVF prohibition (para. 17), while it considered the negative attitude of the Constitutional Chamber just two weeks before as an obstacle for implementing the judgment (paras. 18-19). As a remarkable position taken in this context, the Dissenting Opinion of Judge Vio Grossi clearly mentions “el margen de apreciación del Estado” recognized for implementing the obligations under international law (para. 25).

3.3. Revocation of domestic judgment: Fontevecchia and D’Amico v. Argentina

The third example for the present purpose is Fontevecchia and D’Amico relating to the civil sentence of the Supreme Court of Argentina imposing compensation on journalists who published articles on political scandals. The main cause of the conflict between national and international judges here is the possibility of revoking the Supreme Court’s decision. In the judgment on merits on 29 November 2011, having determined the violation of the victims’ freedom of expression, the IACtHR ordered as a reparation measure that “the State must revoke [in the authentic Español text ‘dejar sin efecto’] the decision” (para. 105).

This sensitive reparation order provoked the critical reaction of the Supreme Court in the judgment on 14 February 2017. According to the Argentine Supreme Court, the dejar sin efecto order implies the substitution of its authority by the Inter-American Court, which is clear transgression of constitutional principles. This position is reinforced with the sovereignty-driven constitutional reasoning: “The constituent has enshrined in Article 27 a sphere of sovereign reserve, delimited by the principles of public law established in the National Constitution, to which international treaties must be adjusted and with which must keep compliance” (Considerando 16). In the Opinion of Judge Horacio Rosatti, the term “esfera de reserva soberana” is notably rephrased as “margen de apreciación” (para. 5).

The question casted from Buenos Aires was answered in San José negatively with the order on compliance on 18 October 2017. Frist of all, the Inter-American Court clarified that the meaning of its own wording dejar sin efecto is not synonymous with revoking as interpreted by the Argentine Supreme Court but is rather that “the State should adopt ‘the judicial, administrative and other measures that may be necessary’ to ‘render ineffective’ such sentences” (para. 16). Next, the IACtHR mentioned the existence of other type of legal act, different from such revocation, to comply with the ordered reparation measure other means for that purpose (paras. 20-21).

4.1. Relativist theories on authority of law

International law has traditionally derived its legitimacy simply from the consent of sovereign State (^{Lister, 2010}; ^{Werner, 2016}). Such a voluntarist approach, however, encounters a natural objection that the consent of some states does not reflect the interests of most people in those states. Thus, another alternative is currently being pursued, for example, under the “democratic state consent” model (^{Christiano, 2010}). The democracy-oriented model is particularly convincing when the authority of international law is situated in the relative relationship with the authority of constitutional law that can draw legitimacy directly from the will of the people.

As a prominent theoretical approach, Samantha Besson proposes the co-ordination based theory of legal authority. She puts the justification of legitimate authority mostly in the “co-ordinating ability” of international law in circumstances of “reasonable disagreement” (2009, pp. 352-355). Besson argues that the role of state consent is best understood and justified by reference to the circumstances of reasonable disagreement about and in international law, and hence to state democracy and equality (2016, pp. 300-302). In such reasonable disagreement cases, “democratic state consent should work as an exception to the prima facie legitimate authority of international law” (2016, p. 307).

Nicole ^{Roughan (2013}, 2016) similarly theorizes the conjunctive justification of authority of law. Her legal-philosophical framework presupposes that authorities have the standing of authority conferred upon them through some valuable process including democratic values and that the authorities better enable subjects to comply with the reasons that apply to them (2016, p. 343). Roughan suggests that “[r]elative authorities might, depending on context, need to cooperate, coordinate or tolerate one another if they are to have legitimacy,” and therefore, “even relationships of conflict are justified” (2016, p. 348).

From a practical viewpoint, Başak Çalı also advocates a “reflexive authority” of international law before domestic courts. To overcome the limits of traditional monism and dualism debate, her reflexive approach categorizes more minutely the scope and extent (strong, weak or rebuttable) of authority claim of international law. Domestic judges are under the duty to disregard the domestic law manifestly incompatible with a strict international legal obligation. Meanwhile, they are given a certain extent of discretion to implement when confronted with a weak obligation of international law, or even may set aside a rebuttable international legal mandate (2015, pp. 146-157).

These relativist theories of legal authorities can be corroborated with the Jurisdictional Immunities of the State (Germany v. Italy) scenario. In this instance, the Italian Constitutional Court with its Sentenza 238/2014 resisted against the judgment of the International Court of Justice (ICJ) that prioritized state immunity over individual victims. The Judgment 238/2014 is based on the constitutional reason that the constitutional right to judicial protection (Articles 2 and 24) is not only “one of the supreme principles of our [Italian] constitutional order, intrinsically connected to the principle of democracy itself” but also “one of the greatest principles of legal culture in democratic systems of our times”. It should be carefully read that the Constitutional Court indeed took international law into consideration in the process of balancing the different constitutional principles at stake. (Considerato in diritto para. 3.4; see ^{Iovane, 2016}, pp. 600-602). In this process, the Italian Constitutional Court felt entitled to perform vis-à-vis the international and the United Nations legal orders including the ICJ, by indicating a path that those orders should follow if they want to embrace a meaningful process of “democratization” (2015, p. 404).

4.2. The Massacre of El Mozote and the surrounding areas v. El Salvador

In the context of Latin America, the El Mozote case beautifully illustrates the relativist theories on international and national authorities in light of constitutional reasoning. This case concerned the alleged massacres occurred during the ruthless period of the so-called “counterinsurgency” operations, deployed against civilians on a massive scale by the Salvadoran army during the armed conflict. Although the 1992 the Chapultepec Peace Accord ending hostilities clearly mentions “the need to clarify and put an end to any indication of impunity,” the Legislative Assembly of the Republic of El Salvador enacted the 1993 Law of General Amnesty for the Consolidation of Peace to extended the benefit of unrestricted amnesty under the 1992 National Reconciliation Law.

In the merits on 25 October 2012, the IACtHR resolutely maintained its jurisprudence on amnesty laws. Despite the apparently democratic process through which the Law of General Amnesty was adopted, it was regarded as evidently incompatible with the ACHR and lacking legal effects. We should not overlook in this context the concurring opinion of Judge Diego García Sayán, adhered by Judges Leonardo A. Franco, Margarette May Macaulay, Rhadys Abreu Blondet and Alberto Pérez Pérez. Their opinion complemented the majority position in terms of the special conditions of transitional justice as follows:

In these [transitional situations between armed conflicts and peace], taking into consideration that none of those rights and obligations is of an absolute character, it is legitimate that they be weighed in such a way that the satisfaction of some does not affect the exercise of the others disproportionately. Thus, the degree of justice that can be achieved is not an isolated component from which legitimate frustrations and dissatisfactions can arise, but part of an ambitious process of transition towards mutual tolerance and peace (para. 38).

In line with this thoughtful Opinion, the Constitutional Chamber the Supreme Court of El Salvador in the Judgment on 13 July 2016 tactfully orchestrated its constitutional reasoning in favor of both international and national mandates. As a starting point for dialogue, the constitutional guardian evaluated the Inter-American authority in that the latter “without disregarding the sovereign right that States retain to decree amnesties in situations of post-armed conflict, has ruled on the incompatibility of certain amnesty laws -specifically self-amnesties- with international law and with the international obligations of states” (Considerando IV.6.A.). By friendly re-appraising, and at the same time, re-characterizing the Inter-American jurisprudence as developed mainly in “self-”amnesty cases, the Constitutional Chamber skillfully arranged its own field to create the jurisprudence on “post-armed conflict” amnesty in terms of constitutional reasoning. The Chamber’s position was corroborated with a constitutional comparative analysis of transitional cases including Argentina and Colombia (Considerando V.1.A.) To differentiate from the Inter-American Court that links strict international obligations with “all” violation of protected rights, the Salvadorian Court identified the actually relevant criteria to be applied only in “serious” violations of human rights (Considerando V.2.A.). Within the reformulated framework, the proportionality was even more minutely evaluated between “the need to ensure certain legitimate public interests - such as peace, political stability and national reconciliation - and the state's inalienable obligation to investigate and sanction violations of fundamental rights.” (Considerando V.2.B.)

Although the IACtHR and the Constitutional Chamber proceeded in different paths, they eventually joined together in the conclusion that Ley de Amnistía General para la Consolidación de la Paz was subject to control of constitutionality and conventionality. As a subsequent progress, the Second Court of First Instance of San Francisco Goterahad subsequently ordered the closure of the proceedings in application of the Act, required the proceedings to be reopened. As a closing remark of the dialogue, the IACtHR issued the order on 31 August 2017 to declare that El Salvador have given full compliance with the judgment.

4.3. Relativizing Inter-American Court’s doctrines through constitutional reasoning

This Salvadorian approach in El Mozote elaborated a thought-provoking constitutional reasoning that respectfully aims to relativize IACtHR’s absolutist doctrines. On this point, Carlos Arturo Villagrán Sandoval and Fabia Fernandes Carvalho Veçoso have already made an insightful comment that the most interesting aspect of the Salvadorian decision was that it presented the Chamber as a catalyst in the bottom-up construction of democratic values in a dialectic manner. (2016, pp. 1636-1637, emphasis added). We may observe the dual aspect of such a bottom-up democratization

First, the Constitutional Chamber constructively criticized the IACtHR’s comparative method for ascertaining the international corpus juris. As we confirmed above, the Inter-American comparative approach has been the target of criticism for “undertak[ing] a fairly superficial reading of the law of the other countries involved, particularly in the absence of IACtHR cases dealing with the same set of laws in the other jurisdictions” (^{Lixinski, 2017}, p. 79). The Constitutional Chamber, in order to overcome such a flaw stemming from the top-down approach of the Inter-American Court, intended to build a bottom-up democratic consensus among States Parties by comparing constitutional peers’ practices in this region.

Second, the Constitutional Chamber attenuated the IACtHR’s ultimate authority in exercising the control of conventionality. In the Artavia Murillo judgment on merits mentioned before, the IACtHR boldly took a constitutional role of assessing an appropriate balance to mitigate the excessive sacrifice of the rights involved for the benefits referred to with the protection of the embryo, though acknowledging the non-necessity of such a detailed analysis by itself. On the contrary, the Constitutional Chamber claimed its “better placed” position than the Inter-American Court’s top-down standpoint to assess constitutional proportionality to reflect democratic values in the sensitive context of transitional justice.

As is implied in the Salvadorian case, such a double bottom-up construction of democratic consensus though reasonable constitutional reasoning contributes to reinforcing, rather than demolishing, the legitimate authority of international law. To facilitate the possibility, the IACtHR is expected to systematize a more deferential approach to States Parties in this particular case (^{Contesse, 2016}, p. 137). In particular, the relevance of national margin of appreciation should be sincerely tackled, which is especially apt in sensitive contexts such as transitional justice, where the very different historical, political, and social circumstances demand unique solutions (^{Acosta López, 2016}, p. 181; see also ^{Negishi, 2016}, pp. 149-151).