The Final Word? Constitutional Dialogue and the Inter-American Court of Human Rights

Abstract

In this Article, I discuss the ways in which the Inter-American Court of Human Rights addresses cases adopting a novel approach to legal adjudication — one that relies on domestic notions of constitutional law carried out by domestic jurisdictions. Most scholarship on the inter-American human rights system assumes a top-down approach, whereby the Court merely dictates what countries must do. I argue that a new, bottom-up approach is in place and, further, is required to advance the Court’s legitimacy, especially in the face of criticism by countries, legal scholars and advocates for the Court’s decisions as an illegitimate intervention into domestic affairs. To this end, I critically examine the conventionality control doctrine, whereby domestic judges are expected to decide as if they were “inter-American human rights judges,” and I discuss two decisions that shed light on how the Inter-American Court could use a bottom-up model of constitutional dialogue with domestic jurisdictions.

Keywords: Inter-American Court of Human Rights, conventionality control, judicial dialogue