The transformation of the Inter-American system for the protection of human rights: the structural impact of the Inter-American Courts case law on amnesties

Abstract

Since 2001, although only in very few cases concerning amnesty laws, the Inter- American Court of Human Rights has started to declare the lack of legal effects of domestic legislation owing to its incompatibility with the American Convention on Human Rights. In addition, the Court imposes on national authorities the duty to exercise what it calls the “conventionality control”, and to disapply laws contrary to the Convention. Through an analysis of this and previous case law, as well as of relevant literature, the author argues that the Court is transforming the legal nature of the Inter- American system for the protection of human rights in order to enhance its influence on the states’ domestic order. However, the examination of the interpretative process through which the Court achieves this enhanced influence reveals that it is creating law and exceeding its jurisdiction. The theories of the state’s international responsibility and the inherent powers of international courts, as they stand, do not seem to provide a basis for this development. In view of this, but also of the reasons that may have led the Court to adopt this case law, the author raises the question of the legitimacy of this transformation of the Inter-American system and calls for the necessary reflection on the question.