Varieties of open statehood: Comparing the role of domestic courts in the implementation of judgments of the ECtHR and the IACtHR

How do domestic courts in the Interamerican and the European Human Rights systems position themselves vis-à-vis their international counterparts? While courts in Latin America are more open towards the IACtHR than their European counterparts, which reflects the “estatalidad abierta” (“open statehood”) characterizing many constitutions on the continent and the more hierarchic approach of the IACtHR, in Europe most domestic courts are also willing to follow the ECtHR, even though in more indirect and limited ways. Yet, in both systems tensions seem to be on the rise, with courts on both sides of the Atlantic undertaking an increased constitutional control of the human rights judgments. It will be argued that even though it would be too simplistic to dismiss these cases as instances of “judicial nationalism”, some cases do indicate a certain dualist shift and a (problematic) turn towards a more inward-looking position little suited to cope with today’s plural legal reality.