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Assunto: I-CONnect Blog
Data: 12 de dezembro de 2019 22:53
Para: m.mohallem@ucl.ac.uk

I-CONnect Blog

The Joint Declaration to the Inter-American System of

Human Rights: Backlash or Contestation?
Posted: 11 Dec 2019 07:29 PM PST

—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
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/

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