Emerging doctrine of deference of the Inter-American Court of Human Rights?
|Year of publication||2016|
|Type||Article in Periodical|
|Magazine / Source||International journal of human rights|
|MU Faculty or unit|
|Keywords||Inter-American Court of Human Rights; deference; subsidiarity; legitimacy|
|Description||In its early days, almost all cases examined by the Inter-American Court of Human Rights ( IACtHR) involved acts of state violence. Deference to national decision-makers was out of the question, due to their manifest lack of willingness and/or ability to deliver on human rights promises. A partial shift of focus away from such cases, due to the change in a legal and political landscape, created the need for the IACtHR to reconsider its relationship with national jurisdictions and become more deferential. This would enable the IACtHR to ensure conformity of its approach with its subsidiary role and strengthen its legitimacy and effectiveness. This article reflects on how deference does and should operate at each of the two stages of judicial reasoning, norm interpretation and norm application. It asks: does the IACtHR exercise deference? Should it exercise deference? If so, with regard to what, under what conditions and to what extent? As regards norm interpretation, the article suggests ways of adopting a middle ground between overreliance on national interpretations to the detriment of individuals and complete disregard of those interpretations at the risk of antagonising states. As regards norm application, it suggests that some of the recent judgments signalled the willingness of the IACtHR to exercise deference (refusing to impose its determination of consequences that should follow from the treaty norms in the given situation) and calls for a clear articulation of conditions and the extent of deference.|