The relationship between domestic and international courts: the need to incorporate judicial politics into the analysis

In the latest issue of EJIL, Raffaela Kunz carefully examines the complex relationship between domestic and international courts in human rights adjudication. Amidst the well-known backlash from governments, she draws attention to the growing resistance of domestic high courts to decisions by their international counterparts as well as the main features of this resistance. Kunz traces how international human rights courts have developed tools to strengthen the impact of their decisions “on the ground”. She further examines how domestic courts perceive their role as “compliance partners” and how the greater interaction between them and international courts has increased the possibility of collaboration, yet also the likelihood of tensions and conflicts with their international counterparts. Domestic courts, she suggests, ultimately act as “gatekeepers” modulating the effect of international decisions over the domestic legal system.

The article provides a useful comparative analysis of the multiple and complex interactions between domestic and international courts by looking both at the Inter-American and the European systems. It develops a balanced descriptive account of the different reactions of domestic vis-à-vis international courts, and the arguments on which they are based. Kunz correctly rejects, as overly simplistic, the view that different patterns of resistance by domestic courts are “an expression of national interest trumping multilateralism” (1156). By contrast, she is sensitive to the architectonic advantages and disadvantages of compliance as well as resistance. For instance, she acknowledges that disobedience can be “a tool that helps to moderate the negative side effects of multilevel governance and to facilitate -and not disrupt- the interplay between different legal orders.” (1145) At the same time, she is aware that contestation, even if it does not entail an existential threat to an international court, risks “opening Pandora’s box and causing a ‘domino effect’” (1159) in the sense it may encourage non-compliance by other domestic courts.

Kunz highlights that we must “treat judicial resistance as a particular form of resistance that follows its own logic” (1157). She correctly notes that “domestic courts in numerous cases and situations are willing to follow the human rights courts, at times despite the fact that domestic law stands in the way, be it in the form of res iudicata, unconventional domestic legislation or the fact that implementation action falls in the competences of the other branches” (1149). Much of this is explained, according to her, by “the gravity of the human rights violation in question or the fact that the violation is still ongoing” (1146). By contrast, she argues that domestic courts refuse to follow judgments they consider to be wrong (1143) or when the “domestic order and, especially, the constitution contain limits to the ‘intrusion’ of international judgments” (1144). Ultimately, she suggests that domestic courts play “a multifaceted role at the intersection of legal orders as mediators, rather as guardians of a particular order,” a role that allows them to factor in the different interests in play in any given situation (1160-1). This role often entails taking a “result-oriented and, at times, even pragmatic stance, limiting themselves to the case at hand and refraining from developing theories that point beyond the individual case” (1161).

The picture she paints is nuanced and insightful. Yet, I believe it is incomplete in at least one critical sense. In order to fully grasp the dynamics of this interaction I suggest that significantly more attention should be given to the agency of judges and their strategic behaviour, as illustrated by the recent literature in the field of judicial politics (see, e.g., here). To illustrate this, let me draw on two important strands in this relationship between domestic and international human rights courts. I will focus on the Inter-American context, which I know best, though the relevant claims also apply to the European system.

First, domestic courts seem to have used the bindingness of decisions by the Inter-American Court of Human Rights (IACtHR) strategically to strengthen their authority or to shield certain decisions from criticism. In this vein, the Argentine Supreme Court “found” the binding character of the IACtHR’s decision against Peru in Barrios Altos (i.e. beyond what Article 68 of the American Convention of Human Rights -ACHR- stipulated) to overturn one of its own previous decisions which would have otherwise been considered res judicata under Argentine law. This was compatible with the decision of the Kirchner administration to put accountability for grave human rights violations at the centre of its political agenda, as well as in line with the need of the Supreme Court to re-legitimise itself after its 2001 crisis. Similarly, Colombia’s Constitutional Court recognised the binding nature of all the IACtHR’s jurisprudence shortly after being created, when it needed to establish itself as the high court of the land against the open resistance of the Colombian Supreme Court; and then again several years later in the context of a critical decision it needed to reach directly challenging the strong Uribe administration. Finally, Mexico’s Supreme Court accepted the bindingness of IACtHR jurisprudence in a particular context of vulnerability before the Inter-American system, given the local lack of action in light of previous IACtHR’s decisions, the violent domestic context, and the number of cases that were still pending against Mexico in the Inter American system. Accordingly, as I argue at greater length elsewhere, these high courts seem to have used the bindingness of the IACtHR’s jurisprudence defensively in order to either “externalise” some of the costs of a decision, gather traction/legitimacy vis-à-vis hostile domestic actors, or seek leniency from the IACtHR system.

Arguably, my thesis of the strategic acceptance of the binding character of the IACtHR’s jurisprudence is further supported by the fact that throughout this same period other domestic judiciaries were, as a general matter, “reluctant compliance partners, foot-dragging or ignoring the [IACtHR] orders altogether” (see Huneeus, here). As Neuman and Basch et al have argued, on doctrinal and empirical grounds respectively, domestic courts failed to comply with IACtHR’s rulings in a very significant number of instances. Notably, this reluctance has obtained even under what Contesse has termed a “maximalist” approach adopted by the IACtHR, namely, one that leaves virtually no room for domestic authorities to reach their own decisions and obliges domestic courts to follow the IACtHR’s authoritative interpretation of the ACHR.

Accordingly, the current resistance can also be seen in this strategic light. Accepting the binding character of all of the IACtHR’s decisions across the board would restrict the capacity of domestic high courts to reach their preferred outcomes/policies. Thus it is not surprising each of these courts have adopted fairly similar stances that allow them to determine when to follow the IACtHR and when not to. In Fontevecchia, the Argentine Supreme Court claimed itself the authority to determine when the IACtHR had exceeded its competences under the ACHR. In Decisions C-500 (2014) and C-327 (2016), the Colombian Constitutional Court considered that the jurisprudence of the IACtHR was not binding unless it satisfied certain requirements, including, most prominently, that a particular legal proposition was “uniform and reiterated” within the case-law of the IACtHR. In Varios 1396/2011 the Mexican Supreme Court claimed that domestic courts’ duty to harmonise their case-law with that of supranational courts was excepted in cases where that would involve disowning a clear constitutional restriction (note the profuse extension of the Mexican Constitution).

Second, I believe the type of analysis I favour helps illuminate further aspects of the specific interaction, dialogue or, as Kunz prefers to call it, “dialectical review” (1156) between “resisting” domestic courts and international human rights courts. In Fontevecchia the Argentine Supreme Court famously decided not to comply with a decision of the IACtHR against Argentina, contradicting the explicit terms of Art. 68 ACHR. Kunz argues that this type of resistance constitutes “an affront to the human rights courts” (1155). Yet she also acknowledges that “the Argentinian Supreme Court and the IACtHR in the end found a compromise” (fn 180). A focus on the strategic behaviour of both Courts may help clarify this outcome further. In effect, although its decision created significant uproar, the Argentine Supreme Court chose a notoriously undramatic issue to make this move. In a case concerning freedom of expression under Art. 13 of the ACHR, the Argentine Supreme Court refused to comply with a decision of the IACtHR to “set aside” a previous Supreme Court tort sentence against two journalists. At the same time, the Court left untouched the IACtHR’s order that Argentina should compensate the journalists and publish its decision stating not only that the journalists’ acts were not wrong, but that their rights had been violated by the Supreme Court’s original sentence. Furthermore, regardless of whether the Supreme Court’s reasoning was sound, and whether this decision sought to undermine the authority of the IACtHR, the IACtHR did not stick to its guns but rather suggested another way to implement its own decision. Namely, the IACtHR recognised that the Argentine Supreme Court could eliminate the domestic decision from the Supreme Court’s website, or it could add an annotation indicating that the decision had been declared to be in breach of the ACHR. Ultimately, through Resolution 2015/17 the Argentine Supreme Court agreed to include such clarificatory note next to the Supreme Court’s original decision.

In this interaction, the Argentine Supreme Court ultimately curtailed the authority of the IACtHR while it strengthened its own, and that of domestic authorities more generally. Yet it did so through a finding that was largely symbolic -with hardly any practical implications in the case at hand. In turn, the IACtHR seems to have softened its traditionally vertical or hierarchical approach of Almonacid Arellano v Chile and Gelman Monitoring Compliance towards its domestic counterparts. It is difficult not to see this as a form of self-restraint in light of the risk of open non-compliance and the prevailing political climate in the region, as exemplified, inter alia, by Venezuela’s denunciation of the ACHR and the joint communication from the Governments of Argentina, Brazil, Chile, Colombia and Paraguay. At the same time, with respect to other countries and other issues the IACtHR seems to maintain its preference for a vertical interaction and an appetite for stringent remedies. In its recent decisions on monitoring compliance in cases against El Salvador and Guatemala the IACtHR ordered their congresses to terminate or suspend treatment of certain bills. It would be interesting to pay greater attention to the variance in international human rights courts dealings and interactions with different countries (and governments) to gain a better understanding of their strategic behaviour. It is clear, though, that the IACtHR’s picks its battles and Fontevecchia was not one it considered worth fighting.

In sum, Kunz’s analysis provides important insights about the architecture of these relationships. This short post seeks to engage critically with it not so much to put its findings into question but to enrich its approach with a greater focus on the agency of courts and the judicial politics that shape this interaction. Having a better grasp of the multiple aspects that are at stake is indispensable to sort out the key underlying issues, namely, when and whether domestic courts ought to follow, and when they will follow the decisions of their international counterparts.