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Democracy and Rights in Gelman v. Uruguay

Part of: Constitutionalization of International Law in Latin America

Published online by Cambridge University Press:  20 January 2017

Roberto Gargarella
Roberto Gargarella*
Affiliation:
Torcuta di Tella University and the University of Buenos Aires Revista Argentina de Teoría Jurídica at the Torcuta di Tella University
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On 24 February 2011, the Inter-American Court of Human Rights (IACtHR) issued its decision in Gelman v. Uruguay, condemning Uruguay for the forced disappearance of María Claudia García Iruretagoyena de Gelman and the kidnapping of her daughter Macarena Gelman during the military dictatorship. In the decision, the Court ordered Uruguay to remove all obstacles that enabled those responsible for the crimes to go unpunished. Accordingly, it declared that Law 15848 on the Expiry of Punitive Claims of the State (“Expiry Law”), a 1986 amnesty law that prevented the prosecution of people who had committed serious human rights violations during the military dictatorship, was incompatible with the American Convention on Human Rights and the Inter-American Convention on Forced Disappearance of Persons, and therefore lacked legal effect. That the law had been passed democratically and subsequently reaffirmed two times by popular referendums did not change the Court’s evaluation or impede the Court from annulling it.

Type
Symposium on the Constitutionalization of International Law in Latin America
Information
AJIL Unbound , Volume 109 , 2015 , pp. 115 - 119
Copyright
Copyright © American Society of International Law 2015

References

1 Gelman v. Uruguay, Merits and Reparations, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 221 (Feb. 24, 2011).

2 Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 75 (Mar. 14, 2001); La Cantuta v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 162 (Nov. 29, 2006); Almonacid et al. v. Chile, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 154 (Sep. 26, 2006); Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, Preliminary Objections. Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 219 (Nov. 24, 2010).

3 Gelman v. Uruguay, Merits and Reparations, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 221, para. 226 (Feb. 24, 2011).

4 The growth in the use of Amnesty in recent decades was due to the serious wave of breakdowns in democracy and the massive human rights violations that resulted from them, especially during the 1970s and 80s. It also reflects the political and economic inequality that has affected the region throughout modern history, and which results in the presence of a small number of actors who possess enormous influence over democratically-chosen political authorities.

5 Here I associate the (democratic) legitimacy of a norm simply with the degree of inclusivity and public debate that has characterized it up to the moment of its implementation. In accordance with this criterion, a norm that is promulgated under a dictatorship is typically assigned the lowest degree of legitimacy. See Carlos Nino, La Validez del Derecho (1987). See also Bruce Ackerman, 1 We the People (1993).

6 Gelman v Uruguay, Merits and Reparations, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 221, para. 229 (Feb. 24, 2011).

7 Id. at para. 238.

8 Id. at para. 229.

9 Herein arises an objection that my colleague Victor Abramovich, who served as Vice-President of the Inter-American Commission of Human Rights, has often brought up. The Abramovich objection starts with the idea that the countries of the region also “demo-cratically” affirmed their participation in the human rights treaties that the courts—whose authority has thus been “democratically” recognized—are now obliging those countries to respect. In other words, the objection draws attention to the democratic pedigree of the decisions to which I object using arguments of the same caliber. The objection, however, does not strike me at all as convincing. The act of setting up and putting into operation a high court does not preclude debate over what that court can decide or the modalities and authority of those decisions, but rather inaugurates it.

10 See Jeremy Waldron, Law and Disagreement (1999).

11 Gelman v. Uruguay, Merits and Reparations, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 221, para. 190 (Feb. 24, 2011).

12 Id.

13 See Mac-Gregor, Eduardo Ferrer, Conventionality Control: The New Doctrine of the Inter-American Court of Human Rights, 109 AJIL Unbound 93 (2015)CrossRefGoogle Scholar.

14 See Dulitzky, Ariel E., An Alternative Approach to the Conventionality Control Doctrine, 109 AJIL Unbound 100 (2015)Google Scholar.

15 See von Bogdandy, Armin, Ius Constitutionale Commune en América Latina: Observations on Transformative Constitutionalism , 109 AJIL Unbound 109 (2015)CrossRefGoogle Scholar.