In times of an alleged backlash against international courts, understanding how courts might overcome and manage such challenges becomes crucial. Human rights courts, in particular, operate in a climate of heavy criticism, precarious funding, and state withdrawal. Yet, they remain surprisingly resilient in the face of those attacks. Embedded in their institutional environment, one can observe various attempted coping mechanisms such as strategic deference, judicial dialogue, and major structural reform processes, but also the implementation of sanctions, and the need to draw red lines in situations of democratic backsliding. In this presentation, I propose a conceptualization of resilience by combining institutionalist theories, regime theory, and socio-ecological studies, carving out the factors, mechanisms, and instruments, which might make human rights more resilient to extraordinary critique.
The analysis of backlash against international human rights tribunals has often centered on two actors: the tribunal in question and ‘the state’ – most often understood as a monolithic entity. This approach is problematic to the extent that it ignores the multiplicity of actors that participate in constructing (and challenging) a court’s authority: the ecosystem in which the international tribunal is embedded. To better understand the manner in which criticism against the IACtHR is managed and processed, I shall first offer a map of the inter-American ecosystem, broadly outlining the different roles that its actors have played. Specific instances of state backlash will then be analyzed taking this ecosystem into account. Ultimately, although courts may adopt specific judicial strategies to deflect criticism, their resilience in the face of pressure owes much to the strength of the ecosystem that has grown around them
The presentation will focus on fighting back the backlash in the inter-American system of human rights through a multi-dimensional dialogue between member states and regional human rights systems and a cross-fertilization between constitutional and regional court’s jurisprudence and the role of think thanks and international cooperation in facilitation this dialogue and cross-fertilization.
This paper will discuss the selection mechanism of judges and commissioners in the Inter-American Human Rights System. This mechanism shows considerable democratic deficit, but also provides only few guarantees regarding the human rights expertise and commitment of candidates. The selection process still obeys, partly, the logics of closed-room diplomacy. While candidates nominated to the OAS General Assembly nowadays undergo expert and civil society scrutiny, the nomination processes at national level continue to lack transparency. Thus, conflicts of interest, excessive deference to States or other interest groups, as well as lack of expertise cannot be excluded. Here, using as a case-study the Inter-American Commission’s selection process 2019, the argument is made that meritocracy and transparency have to improve in the national nomination processes in order to maintain the quality of human rights protection in the Americas.