Non-state actors can contribute to shaping customary law indirectly, through inspiration and pressure, or formally when so empowered by States. Decisions on granting non-state actors customary law-making capacities must be critically decided on a case-by-case basis, in light of the legal interests at stake, risks of making regulation subservient to their interests, and legitimacy and effectiveness considerations. Since non-state involvement in the formation or change of customary law is not limited to direct law-making capacities, different strategies can be used to both receive their input and promote their acceptance of and respect of customary law. Internal and international democratization of State decisions and collective law-making are essential if the (currently) mostly-State-centric system of custom determination is to be fair. This demands a duty to examine non-state proposals in good faith.
María Carmelina Londoño-Lázaro and Nicolás Carrillo-Santarelli
The control of conventionality is a doctrine, developed by the Inter-American Court of Human Rights in its case law, according to which State agents are required to strive to make sure that domestic norms and practices are consistent with what Inter-American and other human rights law standards require. The doctrine as it has been developed posits that not only judges, but also any other State authorities must take these standards into account. The Court has made clear that its own pronouncements are to be considered too, not only in contentious cases but also in advisory opinions. Some argue that the Court has gone too far; others contend that the doctrine simply reaffirms the States’ obligation to adjust domestic practices and norms to international obligations and make internationally recognized human rights effective. Moreover, as long as a multi-level dialogue is permitted and some risks of fragmentation or unreasonable impositions are avoided, the doctrine may help to achieve the objectives of preventing both the congestion of the regional system and repetitive violations, and the legitimacy of the Court may be further strengthened if it admits some latitude in State decisions. Finally, the doctrine requires State authorities to consider extra-American developments, UN developments included; and can help actors from other human rights systems identify developments and principles positively applied throughout the Americas, which may serve as examples.
Nicolas Carrillo-Santarelli and Carolina Olarte-Bácares
Looking at successive chronological stages in the development from the de facto independence of former Spanish colonies towards their first timid recognition by the United Kingdom and their later full acceptance as states by the Spanish monarchy, this article examines several factors that indicate that pragmatism, motivated by political and economic reasons, was the defining element that persuaded different European powers to grant recognition to the nascent States in a historical era in which such recognition was essential for statehood. Those Latin American Republics likewise benefited from British recognition and the later definitive recognition of Spain and other European powers, bending the limits of the law then existing with dynamics based on the principle of effectiveness coupled with certain legitimacy considerations, which have been present throughout history, including the present.