Democracy and Human Rights Adjudication in the Inter-American Legal Space

Abstract

Abstract This chapter describes the emergence of the Inter-American transnational law of human rights, its doctrinal characteristics, and some its main challenges. It focuses on the practice of the Inter-American Court of Human Rights, and proposes the notion of an Inter-American legal space as a different (and more useful) prism than a hierarchical view of constitutionalism to think about the challenges of legitimacy and democracy in Inter-American human rights adjudication. Instead of thinking solely about national democracies, this chapter argues, it is useful to think of democracy in the context of an Inter-American legal space. While the balance between the appropriate Inter-American standard of review and the democratic pedigree of the primary decision is fundamental for the democratic legitimacy of the regional court, the notion of Inter-American legal space allows us to see that, in a context of human rights indeterminacy, such democratic balancing needs to be performed in reference to a regional (and not solely national) process of democratization, in which an Inter-American community of human rights practice will continue to play a central role.