This article takes a critical look at the following three key characteristics in recent judgements of the Inter-American Court: judicial activism, punitivism and supranationalisation. First, it seeks to illustrate that the Inter-American Court has modified in some significant regards the legal framework agreed upon by State parties (judicial activism); second, that this activism has undermined some of the liberal guarantees limiting the State’s power in criminal matters and has led to the creation of a law of exception (punitivism, or illiberal and contra conventionem judicial activism); third, that the Court, on the basis of the Convention’s provision on reparations, has required States to adopt measures that negatively affect their sovereignty, and has thus become dangerously close to acting as legislator, judge and supreme administrative authority of the American States (supranationalisation).
García Ramírezsupra note 4 p. 13 (translation from Spanish by the author).
Advisory Opinion 16/99supra note 7 paras. 110 et seq.
Advisory Opinion 16/99supra note 7 paras. 114 and 155 (the textual citation is in para. 114; translation from Spanish by the author). Similarly concurring opinion of Judge Cançado Trindade in the aforementioned Advisory Opinión 16/99 paras. 9-15; Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights 14 July 1989 IACHR Advisory Opinion 10/89 paras. 37-38; Villagrán Morales y otros ("Niños de la Calle") v. Guatemala 19 November 1999 IACHR Serie C No. 63 paras. 193-194; Cantoral Benavides v. Peru18 August 2000 IACHR Serie C No. 69 paras. 99 102-103; Bámaca Velásquez v. Guatemala 25 November 2000 IACHR Serie C No. 70 reasoned opinion of Judge Cançado Trindade paras. 34 et seq; Comunidad Mayagna (Sumo) Awas Tingni v. Nicaragua supra note 19 paras. 148-149.
Hartsupra note 2 pp. 141 et seq.
Hartsupra note 2 p. 141. The problematic feature of the Inter-American system is not that a wrong decision of the IACHR cannot be revised. In every judicial system the possibility to revise a decision must come to an end by giving a certain court final authority. What is problematic is that its legal framework contains very weak disciplinary mechanisms to control the judges. In fact art. 21.2 of the Statute of the IACHR establishes that “[t]he OAS General Assembly shall have disciplinary authority over the judges but may exercise that authority only at the request of the Court itself composed for this purpose of the remaining judges.” (the emphasis is mine).
García Ramírezsupra note 4 p. 3; translation from Spanish by the author. In the same work he says: “It is interesting to note the developments contained in the Court’s recent judgements as regards the issue of reparation” (p. 13) (translation from Spanish by the author).