5 - Rejecting the Inter-American Court: Judicialization, National Courts, and Regional Human Rights

Summary

INTRODUCTION

At first glance, one might assume that judicialization at the national level would enhance the influence of the Inter-American Court of Human Rights (IACtHR). The Inter-American Human Rights System provides national courts with a ready-made arsenal of global legitimacy – in the form of treaty law and court opinions – with which to enter political battles. As politics is displaced from the legislature and the public square into the courts, and as social and political demands more frequently take on the form of an adversarial rights claim, it seems plausible that national judges will deploy this arsenal more frequently, fomenting, in turn, the Inter-American Court's influence. Scholarship on the European regional systems indeed suggests that national courts have played a pivotal role in regional legal integration (Alter 2001).

Conversely, it could also be that stronger, more politically savvy high courts will be jealous of their power, sidelining the supranational instance so as to retain final arbiter status. The U.S. Supreme Court, one of the world's most politically prominent tribunals, has a reputation for rejecting the jurisprudence of foreign courts. Most recently, it announced that the rulings of the International Court of Justice (ICJ) are not directly binding on national courts and that the ICJ's interpretation of international treaties is not definitive. Furthermore, even as courts in Europe have been crucial to the integration of the European Union (EU) system, there have been backlashes.