Contestation and Deference in the Inter-American Human Rights System

Abstract

This article discusses the Inter-American human rights system’s adjudication model in light of some of the conjectures on subsidiarity as a principle for international governance — that is, the degree of deference it grants to the assessment of a situation by the member state concerned. I inquire about the system’s role as arbitrator of human rights cases within its jurisdiction, examining the dynamics of subsidiarity within the system’s changing context. I find that the Inter-American Court of Human Rights tends to employ a maximalist model of adjudication. Such a model leaves little room for states to reach their own decisions and can be explained as largely resting upon the political context where the Court came to exist, almost four decades ago. I argue that there is a challenge ahead for the Court, namely, to reconcile both claims: on the one hand, states’ demands for higher deference, and on the other hand, the importance of an independent and legitimate regional human rights tribunal.

Keywords: Inter-American Court of Human Rights, Subsidiarity, Margin of Appreciation, Conventionality Control