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Published online by Cambridge University Press: 30 April 2021
Advisory jurisdiction is a ubiquitous feature of international human rights adjudication. Yet the attention of legal scholars is almost entirely devoted to contentious jurisdiction. This Article aims to fill that gap in the literature. By introducing two models of advisory jurisdiction, and analyzing the example of the Inter-American Court of Human Rights—the world's most active international advice-giver—the Article shows how international human rights courts may utilize advisory proceedings to influence state conduct, in a mechanism the Article calls “ruling through advice.” The Article also shows how human rights courts may attempt to guide states and national courts by means of an “anticipatory adjudication” mechanism. Using the Inter-American Court's groundbreaking advisory opinion on same-sex marriage as a case study, the Article argues that, despite the domestic implementation of its opinion, the Court misused its advisory powers, putting the regional human rights system at risk. The insights that both the conceptual model and the case study offer contribute to a broader conversation about international courts’ advisory role.
I have enormously benefited from comments and critiques at different stages of this project from many people, including Diane Marie Amann, Eleanor Benz, Carrie Bettinger-López, Stella Burch Elias, Laurence Burgorgue-Larsen, Kathleen Claussen, Harlan Cohen, Melissa Durkee, Tamar Ezer, Damian González-Salzberg, Florian Hoffmann, Lucas Lixinski, Craig Martin, Robyn Oates, Anne Orford, Christopher Rossi, Stephen Schnably, Fabia Veçoso, Armin von Bogdandy; four excellent anonymous reviewers; and participants at the 2021 Rutgers Law Colloquium; the 2020 International Law Colloquium at the University of Georgia School of Law; the 2020 Legal Theory Workshop at the University of Miami School of Law; the 2019 American Society of International Law Midyear Research Forum; the 2019 American Society of International Law-Midwest Works-In-Progress Conference; the 2019 Meeting of the Latin American Society of International Law; and the 2019 International Society of Public Law (ICON-S) Annual Meeting. Wendy Llewellyn, Gianni Garyfallos, and Corey Repasy provided excellent research assistance, and the Shuchman Fund generously supported this project.
1 Government of the Republic of Mauritius Press Release, Prime Minister Launches First Day Cover, Stamps and Souvenir Sheet on ICJ Advisory Opinion on Decolonisation (Aug. 23, 2019), at http://www.govmu.org/English/News/Pages/Prime-Minister-launches-first-day-cover,-stamps-and-souvenir-sheet-on-ICJ-Advisory-Opinion-on-Decolonisation.aspx.
2 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion 2019, ICJ Rep. 95, 139 (Feb. 25).
3 See Advisory Opinion of the International Court of Justice on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, UN Doc. A/73/295 (May 22, 2019), at https://undocs.org/en/A/RES/73/295.
4 Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius and Maldives in the Indian Ocean (Mauritius v. Maldives), Case No. 28, Preliminary Objections, Judgment, para. 205 (ITLOS Jan. 28, 2021) [hereinafter Mauritius v. Maldives].
5 Case Concerning the Recognition in Domestic Law of a Legal Parent-Child Relationship Between a Child Born Through a Gestational Surrogacy Arrangement Abroad and the Intended Mother, Advisory Opinion (Eur. Ct. Hum. Rts. Apr. 10, 2019). In May 2020, the Court delivered its second advisory opinion under the newly established advisory power, on “the use of the ‘blanket reference’ or ‘legislation by reference’ technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the offence and the amended criminal law.” See Case Concerning the Use of the “Blanket Reference” or “Legislation by Reference” Technique in the Definition of an Offence and the Standards of Comparison Between the Criminal Law in Force at the Time of the Offence and the Amended Criminal Law, Advisory Opinion (Eur. Ct. Hum. Rts. May 29, 2020).
6 State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples (Interpretation and Scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in Relation to Article 1, of the American Convention on Human Rights), Advisory Opinion OC-24/17, Inter-Am. Ct. H.R., (ser. A) No. 24 (Nov. 24, 2017) [hereinafter State Obligations Advisory Opinion].
7 See Statement from the Governments of Argentina, Brazil, Chile, Colombia and Paraguay, Submitted to the Inter-American Commission on Human Rights (Apr. 11, 2019), at https://www.mre.gov.py/index.php/noticias-de-embajadas-y-consulados/gobiernos-de-argentina-brasil-chile-colombia-y-paraguay-se-manifiestan-sobre-el-sistema-interamericano-de-derechos-humanos (available in Spanish).
8 In her study on the proliferation of international courts, Karen Alter covers more than 37,000 decisions. However, as she notes, the study tends to exclude advisory opinions to focus instead “on international courts’ rulings that are defined by treaties as being binding in the legal sense.” See Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights 131 (2014).
9 As of April 2021, the Inter-American Court of Human Rights has issued twenty-six advisory opinions; the International Court of Justice, twenty-eight; the African Court on Human and Peoples’ Rights, twelve; the International Tribunal for Law of the Sea, two; the European Free Trade Association Court (which is really a transnational court, as it has only three member states), twenty-six; and the European Court of Human Rights, two. Considering that the ICJ issued its first advisory in 1948 and has been in operation since 1946, the Inter-American Court—which began work in 1978—is the most active international court exercising advisory jurisdiction today.
10 But see Muskrat v. United States, 219 U.S. 346 (1911), in which the U.S. Supreme Court declared that advisory opinions are not an exercise of judicial power under the U.S. Constitution.
11 In human rights adjudication, scholars also tend to focus more on contentious judgments, leaving other mechanisms of state accountability largely unattended. One such mechanism is friendly settlements, which exist in all human rights regimes, and pose both theoretical and practical challenges. See Contesse, Jorge, Settling Human Rights Violations, 60 Harv. Int'l L.J. 317 (2019)Google Scholar.
12 Covenant of the League of Nations, Art. 14, Apr. 28, 1919 (emphasis added). The Draft Covenant had a slight but significant difference: originally proposed by Great Britain, the Draft stated that the Court would also have the power “to advise upon any dispute or question referred to it by the Council or by the Body of Delegates” (emphasis added). As one commentator notes, “the substitution of the expression ‘give an advisory opinion’ for the word ‘advise’ was made to indicate that ‘the function to be exercised [was] a judicial one.’” See Takane Sugihara, The Advisory Function of the International Court of Justice, 18 Japanese Ann. Int'l L. 23, 25 (1974) (quoting D.H. Miller, The Drafting of the Covenant (1969)).
13 See Michla Pomerance, The Advisory Function of the International Court in the League and UN Eras (1973); Sugihara, supra note 12, at 25.
14 The informal Inter-Allied Committee, established in London in 1943 to examine the establishment or reestablishment of an international court after the war, published a report in February 1944, expressly recommending “that the new court should retain an advisory jurisdiction.” See ICJ, History of the International Court of Justice, at https://www.icj-cij.org/en/history; Statute of the International Court of Justice, ch. 4 (Arts. 65–68), Apr. 18, 1946 [hereinafter ICJ Statute]. See Mahasen Mohammad Aljaghoub, The Advisory Function of the International Court of Justice 1946–2005 (2006).
15 UN Charter, Art. 96(a) (“The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.”); ICJ Statute, supra note 14, Art. 65(1): “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request” (emphasis added).
16 See Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, 1948 ICJ Rep. 57 (May 28) (ind. op., Azevedo, M.).
17 See Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 1950 ICJ Rep. 65 (March 30) (ind. op., Azevedo, M.).
18 Michla Pomerance has argued that the ICJ viewed requests for advisory opinions “in a strictly formalistic light as matters concerning solely the requesting organ of and the Court.” Michla Pomerance, The Admission of Judges Ad-Hoc in Advisory Proceedings, 67 AJIL 446, 462 (1973).
19 Sugihara, supra note 12, at 47.
20 See, e.g., Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 ICJ Rep. 62 (Apr. 29); Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization Upon a Complaint Filed Against the International Fund for Agricultural Development, Advisory Opinion, 2012 ICJ Rep. 10 (Feb. 1).
21 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8).
22 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136 (July 9) [hereinafter Wall Advisory Opinion].
23 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 2019 ICJ Rep. 95 (Feb. 25) [hereinafter Chagos Advisory Opinion].
24 Wall Advisory Opinion, supra note 22, paras. 114b–37.
26 In 2016, the ICJ rejected the case brought by the Marshall Islands against several nuclear powers—including India, Pakistan, and the United Kingdom—on jurisdictional grounds, that is, without even considering the case's merits. See Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. India), 2016 ICJ Rep. 255 (Oct. 5).
27 Id., para. 177.
28 Id., para. 178.
29 Stephen Allen, The Chagos Advisory Opinion and the Decolonization of Mauritius, ASIL Insights (Apr. 15, 2019).
30 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 ICJ Rep. 403 (July 22).
31 Marko Milanović, ICJ Delivers Chagos Advisory Opinion, UK Loses Badly, EJIL:Talk! (Feb. 25, 2019) (emphasis in original).
32 See Hurst Hannum, The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?, 24 Leiden J. Int'l L. 155, 159 (2011); Harold Hongju Koh, Reflections on the Law and Politics of the Kosovo Case, in The Law and Politics of the Kosovo Advisory Opinion 350 (Marko Milanović & Michael Wood eds., 2015).
33 In the only instance where the PCIJ refused to give an advisory opinion—the Eastern Carelia case—the Court declined due to Soviet Russia's lack of consent. But, as some argue, today's world may not be like “the world of 1923, when the Permanent Court deferred to the absence of consent by a state affected by the issuance of an advisory opinion to reject a request by the League Council to pronounce on the status of Eastern Carelia.” See Falk, Richard A., Toward Authoritativeness: The ICJ Ruling on Israel's Security Wall, 99 AJIL 42, 46 (2005)Google Scholar.
34 Wall Advisory Opinion, supra note 22, para. 1 (sep. op., Buergenthal, J.).
35 Mauritius v. Maldives, supra note 4.
36 Id., para. 205.
37 Id. In 1997, the Inter-American Court of Human Rights declared that its advisory opinions have “undeniable legal effects,” although it did not explain what those effects were. See Reports of the Inter-American Commission on Human Rights (Art. 51 American Convention on Human Rights) Advisory Opinion OC-15/97, Inter-Am. Ct. H.R. (ser. A) No. 15, para. 26 (Nov. 14, 1997). Starting in 2014, the Inter-American Court of Human Rights consistently declares that its advisory opinions have “legal relevance” for all state parties, whether or not states have taken part in the advisory proceedings—and even if they are not parties to the American Convention on Human Rights, the regional treaty that gives jurisdiction to the Court. See Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Advisory Opinion OC-21/14, Inter-Am. Ct. H.R. (ser. A) No. 21, para. 32 (Aug. 19, 2014); Entitlement of Legal Entities to Hold Rights Under the Inter-American Human Rights System (Interpretation and Scope of Article 1(2), in Relation to Articles 1(2), 8, 11(2), 13, 16, 21, 24, 25, 29, 30, 44, 46 and 62(3) of the American Convention on Human Rights, as Well as of Article 8(1)(A) and (B) of the Protocol of San Salvador), Advisory Opinion OC-22/16, Inter-Am. Ct. H.R. (ser. A) No. 22, para. 25 (Feb. 26, 2016) [hereinafter Advisory Opinion OC-22/16]; State Obligations Advisory Opinion, supra note 6.
39 Id. at 1280.
40 As Bray acknowledges, his theory is “focused primarily on private law.” Id. at 1332.
41 Those jurists had a distinctive understanding of the preventive function of advisory jurisdiction. For example, drawing from observations of the medical profession—which along its practice into more than relieving suffering, to devote its energy to preventive medicine as well—Manley Hudson argued that the legal profession should also look at preventive adjudication, and not just focus on “handling conflicts between opposing individuals or groups after they have already come into clash.” Manley Hudson, Advisory Opinions of National and International Courts, 37 Harv. L. Rev. 970, 971 (1924). Hudson expressed frustration with the idea “that the judicial branch of the legal profession must necessarily confine itself to ripened conflicts.” Id. at 972. Similarly, commentators wrote about courts as “the guardians and advisers of those who respect the law,” referring to judicial pronouncements that were not intended to remedy a situation, but to help individuals or groups who sought judicial guidance—referred to as a man's “legal right to know what his rights were.” See Sunderland, Edson R., A Modern Evolution in Remedial Rights: The Declaratory Judgment, 16 Mich. L. Rev. 69, 77 (1917)CrossRefGoogle Scholar.
42 Carrubba, Clifford J. & Murrah, Lacey, Legal Integration and Use of the Preliminary Ruling Process in the European Union, 59 Int'l Org. 399, 400 (2005)CrossRefGoogle Scholar. Article 267 of the Treaty on the Functioning of the European Union states: “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union . . . .”
43 See Preliminary Reference Procedure (July 6, 2017), at https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI(2017)608628; Karen J. Alter, The European Court's Political Power (2009).
44 Carrubba & Murrah, supra note 42, at 401.
45 Leijon, Karin, National Courts and Preliminary References: Supporting Legal Integration, Protecting National Autonomy or Balancing Conflicting Demands?, 44 W. Eur. Pol. 510 (2021)Google Scholar.
46 See Section IV.A infra.
47 For example, writing about the ICJ's Kosovo advisory opinion, André Nollkaemper argues that the assessment of the opinion depends on the Court's “multiple constituencies,” that is, “the perspective from which one considers the outcome.” André Nollkaemper, The Court and its Multiple Constituencies: Three Perspectives on the Kosovo Advisory Opinion, in The Law and Politics of the Kosovo Advisory Opinion, supra note 32, at 219.
48 To modulate, Oxford Online English Dictionary, at https://www.oxfordlearnersdictionaries.com/definition/english/modulate.
49 Order of the Inter-American Court of Human Rights: Request for an Advisory Opinion Presented by the Inter-American Commission on Human Rights, para. 11 (Inter-Am. Ct. H.R. May 29, 2018), available at https://www.corteidh.or.cr/solicitudoc/sor_01_18_ing.pdf.
51 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Art. 4, June 10, 1998: “The Court may give an advisory opinion on any legal question at the request of the Assembly, the Parliament, the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council (ECOSOCC), the Financial Institutions or any other organ of the Union as may be authorized by the Assembly.”
52 See Chewi, Lilian, The Advisory Proceedings of the African Court on Human and People's Rights, 38 Nordic J. Hum. Rts. 61, 76 (2020)Google Scholar.
53 Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, CETS No. 214 (Aug. 1, 2018).
54 See Scott W. Lyons, Introductory Note to Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms and Advisory Opinion Concerning the Recognition in Domestic Law of a Legal Parent-Child Relationship Between a Child Born Through a Gestational Surrogacy Arrangement Abroad and the Intended Mother (Eur. Ct. H.R.), 58 ILM 234, 235 (2019) (emphasis added).
55 See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 184 (1962).
56 See Jed Odermatt, Patterns of Avoidance: Political Questions Before International Courts, 14 Int'l J. L. Context 221 (2018).
57 Id. at 233.
58 On the margin of appreciation doctrine, see generally Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (2012).
59 Lyons, supra note 54, at 235.
60 See Section IV.A.3 infra.
61 State Obligations Advisory Opinion, supra note 6.
62 Despite being traditionally seen as a conservative region, courts in Latin America have played a key role in the promotion of LGBTI rights. In 2013, the Brazilian Justice Council made same-sex marriage legal in the country; in 2016, the Colombian Constitutional Court found that the prohibition of same-sex marriage was unconstitutional. In other places—such as Argentina, Mexico City, and Uruguay—the rights of same-sex couples have been promoted and protected by legislative action since at least 2010.
63 See Statement from the Governments of Argentina, Brazil, Chile, Colombia and Paraguay, supra note 7.
64 Notable exceptions to this tendency are: Thomas Buergenthal, The Advisory Practice of the Inter-American Human Rights Court, 79 AJIL 1 (1985); Jo M. Pasqualucci, Advisory Practice of the Inter-American Court of Human Rights: Contributing to the Evolution of International Human Rights Law, 38 Stan. J. Int'l L. 241 (2002); Julie Calidonio Schmid, Advisory Opinions on Human Rights: Moving Beyond a Pyrrhic Victory, 16 Duke J. Comp. & Int'l L. 415 (2006); Cecilia M. Bailliet, The Strategic Prudence of the Inter-American Court of Human Rights: Rejection of Requests for an Advisory Opinion, 15 Brazilian J. Int'l L. 254 (2018); Gonzalo Candia Falcón, Causales de Inadmisibilidad de Opiniones Consultivas: Reforzando el Carácter Subsidiario del Sistema Interamericano de Derechos Humanos, 45 Rev. Chilena Derecho 57 (2018); Laurence Burgorgue-Larsen & Amaya Úbeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary 75–100 (2011); and Jorge Ernesto Roa, La Función Consultiva de la Corte Interamericana de Derechos Humanos (2015).
65 See, e.g., The Inter-American Human Rights System: Impact Beyond Compliance (Par Engstrom ed., 2019).
66 See Section II.A supra.
67 American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 143.
68 Id. Art. 64. The Court also has the power to grant provisional measures, pursuant to Article 63(2) of the American Convention.
69 Id. Art. 64.2.
70 Member states and “organs listed in Chapter X of the Charter of the Organization of American States” (Art. 64.1).
71 See Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 21, para. 23 (Aug. 19, 2014).
72 See Karin Oellers-Frahm, Lawmaking Through Advisory Opinions?, 12 German L.J. 1033, 1037 (2011).
73 Not only has the Court rendered a notable number of opinions; there are also several pending requests concerning sensitive political matters. See Eleanor Benz, The Inter-American Court's Advisory Function Continues to Boom – A Few Comments on the Requests Currently Pending, EJIL:Talk! (Nov. 25, 2019).
74 Admittedly, the number of advisory opinions issued by the Inter-American Court is dramatically small compared to the more than three hundred contentious judgments that the Court has handed down since it decided its first contentious decision, in 1988.
75 Laurence R. Helfer, Populism and International Human Rights Law Institutions: A Survival Guide, in Human Rights in a Time of Populism: Challenges and Responses (Gerald L. Neuman ed., 2020).
76 The first contentious case decided by the Inter-American Court was Velásquez Rodríguez v. Honduras, Merits, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988).
77 See, e.g., “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion OC-1/82, Inter-Am. Ct. H.R. (ser. A) No. 1 (Sept. 24, 1982); The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82, Inter-Am. Ct. H.R. (ser. A) No. 2 (Sept. 24, 1982); The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86, Inter-Am. Ct. H.R. (ser. A) No. 6 (May 9, 1986); 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, Advisory Opinion OC-10/89, Inter-Am. Ct. H.R. (ser. A) No. 10 (July 14, 1989).
78 See Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights), Advisory Opinion OC-11/90, Inter-Am. Ct. H.R. (ser. A) No. 11 (Aug. 10, 1990); Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50 and 51 of the American Convention on Human Rights), Advisory Opinion OC-13/93, Inter-Am. Ct. H.R. (ser. A) No. 13 (July 16, 1993); and Reports of the Inter-American Commission on Human Rights (Art. 51 American Convention on Human Rights), Advisory Opinion OC-15/97, Inter-Am. Ct. H.R. (ser. A) No. 15 (Nov. 14, 1997).
79 See Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83, Inter-Am. Ct. H.R. (ser. A) No. 3 (Sept. 8, 1983); Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4 (Jan. 19, 1984); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5 (Nov. 13, 1985); Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights), Advisory Opinion OC-9/87, Inter-Am. Ct. H.R. (ser. A) No. 9 (Oct. 6, 1987); Compatibility of Draft Legislation with Article 8(2)(h) of the American Convention on Human Rights, Advisory Opinion OC-12/91, Inter-Am. Ct. H.R. (ser. A) No. 12 (Dec. 6, 1991) [hereinafter Advisory Opinion OC-12/91].
80 Thomas Buergenthal, who served as a judge on the Inter-American Court during that time, comments on the Court's frustration with the Inter-American Commission because of the Commission's unwillingness to submit contentious cases to the Court. In an early advisory opinion, the Court made an explicit statement urging the Commission to utilize the contentious mechanism. See Thomas Buergenthal, Remembering the Early Years of the Inter-American Court of Human Rights, 37 N.Y.U. J. Int'l. L. & Pol. 259, 269–70 (2004–2005).
81 Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4, para. 30 (Jan. 19, 1984).
82 Id., para. 30.
84 In the early 1990s, several Latin American countries adopted new constitutions or amended their existing constitutions to enhance states’ engagement with international human rights law. See Alexandra Huneeus, Constitutional Lawyers and the Inter-American Court's Varied Authority, 79 L. & Contemp. Probs. 179 (2016).
85 As commentators note, “a comprehensive or broad interpretation . . . is typical of the way the [Inter-American] Court sees its advisory activity.” See Burgorgue-Larsen & Ubeda de Torres, supra note 64, at 101.
86 See Section IV.B infra.
87 The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 16 (Oct. 1, 1999). The request “came about as a result of the bilateral representations that the Government of Mexico had made on behalf of some of its nationals, whom the host State had allegedly not informed of their right to communicate with Mexican consular authorities and who had been sentenced to death in ten states in the United States.” Id., para. 2.
88 The first case was brought in April 1998 by Paraguay, which eventually withdrew its application after the United States executed a Paraguayan national convicted of murder in the state of Virginia. See Case Concerning the Vienna Convention on Consular Relations (Para. v. U.S.), Press Release No. 98/36 (Nov. 11, 1998). The second case was brought by Germany in March 1999. See LaGrand Case (Ger. v. U.S.), 2001 ICJ Rep. 466 (June 27).
89 See Calidonio Schmid, supra note 64, at 447. In its first advisory opinion, the Inter-American Court addressed its power to interpret “other treaties” in an expansive way, declaring that, “the advisory jurisdiction of the Court can be exercised, in general, with regard to any provision dealing with the protection of human rights set forth in any international treaty applicable in the American States, regardless of whether it be bilateral or multilateral, whatever be the principal purpose of such a treaty, and whether or not non-Member States of the inter-American system are or have the right to become parties thereto.” See “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion OC-1/82, Inter-Am. Ct. H.R. (ser. A) No. 1, Op. para. 1 (Sept. 24, 1982). In the present request, one of the questions submitted to the Inter-American Court was, however, whether the Vienna Convention on Consular Relations “could be interpreted as containing provisions concerning the protection of human rights in the American States.” The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser. A) No. 16, para. 4.1 (Oct. 1, 1999).
90 Optional Protocol Concerning the Compulsory Settlement of Disputes, Art. I, Apr. 24, 1963, 21 UST 325, 596 UNTS 487.
91 Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 ICJ Rep. 12 (Mar. 31).
92 On fragmentation in international law, see Joost Pauwelyn, Fragmentation of International Law, in Max Planck Encyclopedia of Public International Law (2006).
93 The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 16, para. 61 (Oct. 1, 1999). Consider Shabtai Rosenne's criticism of the Inter-American Court's attitude: “[A] regional court or tribunal of limited jurisdiction . . . should show the greatest restraint before embarking upon the hazardous and delicate task of interpreting the application of a universal instrument adopted under the auspices of the United Nations, and which itself provides for the jurisdiction of the International Court of Justice.” See Rosenne's The World Court: What It Is and How It Works 240 (Terry D. Gill ed., 6th ed. 2003).
94 Reflecting on the impact of the Consular Assistance opinion on international law, Judge Cançado Trindade called the opinion “historical” and “truly pioneering,” noting that the Inter-American Court was “the first international tribunal to . . . affirm the existence of an individual right to information on consular assistance in the framework of the guarantees of the due process of law.” See Antônio Augusto Cançado Trindade, The Humanization of Consular Law: The Impact of Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights on International Case-Law and Practice, 6 Chinese J. Int'l L. 1, 8–9 (2007).
95 Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18, Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003).
96 Id., paras. 88–101, 161–72.
97 Id., at op. para. 4: “At the current stage of the development of international law, the fundamental principle of equality and non-discrimination has entered the domain of jus cogens.” See Sarah H. Cleveland, Legal Status and Rights of Undocumented Workers. Advisory Opinion OC-18/03, 99 AJIL 460 (2005). Jus cogens (or “peremptory”) norms are norms that do admit derogation. See Vienna Convention on the Law of Treaties, Art. 53, May 23, 1969, 1155 UNTS 331.
98 Cleveland, supra note 97, at 462.
99 See Dinah Shelton, Sherlock Holmes and the Mystery of Jus Cogens, in Netherlands Y.B. Int'l. L. 44 (Maarten den Heijer & Harmen van der Wilt eds., 2016). In 2019, the United Nations Committee on the Elimination of Racial Discrimination confronted the issue, but limited itself to “take note that the Inter-American Court of Human Rights has gone further, as it has established that ‘the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens.’” See State of Palestine v. Israel, CERD Committee, CERD/C/100/5, para. 3.24 (Dec. 12, 2019) [hereinafter State of Palestine v. Israel] (emphasis added). The Committee's decision relies significantly on the notion that human rights treaties belong to a special category of treaties—as their object and purpose “is the common good . . . inspired in superior common values shared by the international community as a whole.” Id., paras. 3.25, 3.34. In a dissenting opinion, some Committee members observed that, “[i]n no way can those provisions [on interstate communications procedures] be considered to be peremptory norms of general international law having a jus cogens or an erga omnes character.” See State of Palestine v. Israel, para. 14 (ind. op., Bossuyt, Izsák-Ndiaye, Ko, Li & Verdugo Moreno (dissenting)).
100 Judge Cançado Trindade's separate opinions in ICJ pronouncements recurrently address international norms as jus cogens. See, for example, his separate opinions in the advisory opinion in Kosovo (paras. 212–17), Separation of the Chagos Archipelago (Part XII), and, more recently, in the provisional measures adopted in the case of The Gambia v. Myanmar (at 75–81).
101 Almonacid Arellano v. Chile, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 154, para. 124 (Sept. 26, 2006).
102 Armin von Bogdandy & René Urueña, International Transformative Constitutionalism in Latin America, 114 AJIL 403, 416 (2020).
103 See Laurence Burgorgue-Larsen, La Corte Interamericana de Derechos Humanos como tribunal constitucional, in Ius Constitutionale Commune en América Latina: Rasgos, Potencialidades y Desafíos 421 (Armin von Bogdandy, Héctor Fix-Fierro & Mariela Morales Antoniazzi coords., 2014).
104 During the discussion of the American Convention, at the San José Conference, in 1969, some delegations formally submitted that domestic constitutions would always have preference over the draft Inter-American treaty. See Secretaría General, Organización de los Estados Americanos, Conferencia Especializada Interamericana sobre Derechos Humanos, Actas y Documentos, San José, Costa Rica, OEA/Ser.K/XVI/1.2, at 100 (Nov. 7–22, 1969).
105 In Latin America, the prevalent theory for the interaction between international law and domestic law is monism: upon ratification of an international human rights treaty, the treaty becomes valid on the national plane without the need for implementing legislation. See, e.g., Argentina's Constitution (Art. 75.22); Chile's Constitution (Art. 5); Brazil's Constitution (Art. 5.2); and Ecuador's Constitution (Art. 425). Thus, when domestic courts apply international law, they are simply using all laws that their constitutions demand them to use—both national and international. In the Court's articulation of conventionality control, however, it is the Inter-American Court—not municipal law—that establishes the supremacy of international law over domestic law.
106 See Ximena Fuentes Torrijo, International and Domestic Law: Definitely an Odd Couple, 77 Rev. Jur. U. Puerto Rico 483 (2008); Jorge Contesse, The International Authority of the Inter-American Court of Human Rights: A Critique of the Conventionality Control Doctrine, 22 Int'l J. Hum. Rts. 1168 (2018).
107 See Ariel E. Dulitzky, An Inter-American Constitutional Court? The Invention of the Conventionality Control by the InterAmerican Court of Human Rights, 50 Texas Int'l L.J. 45 (2015).
108 The concern was similar to what caused the European Court of Human Rights to adopt the pilot judgment procedure. The Strasbourg court, however, did not set itself as a regional constitutional arbiter with the power to bind all national judges. The way to tackle backlog and consistency issues would not mean issuing guidance to domestic courts in the interpretation of both international and domestic law. In this way, the Inter-American Court's adoption of conventionality control resembles the Court of Justice of the European Union's doctrines of supremacy and direct effect. See Lize R. Glas, The Functioning of the Pilot-Judgment Procedure of the European Court of Human Rights in Practice, 34 Neth. Q. Hum. Rts. 41 (2017). On the supremacy and direct effect doctrines, see André Nollkaemper, The Duality of Direct Effect of International Law, 25 Eur. J. Int'l L. 105 (2014).
109 García Ramírez uses a sailing metaphor to explain what he sees as a journey into “a common destiny of humankind”: the realization of human rights for all and by all, not just international justice but also, and perhaps primarily, domestic judges. See Sergio García Ramírez, Relación entre la Jurisdicción Interamericana y los Estados (Sistemas Nacionales): Algunas Cuestiones Relevantes, 18 Anuario Ibero. Just. Const. 231, 236–37 (2014).
110 Von Bogdandy & Urueña, supra note 102, at 414–15.
111 See Eduardo Ferrer Mac-Gregor, What Do We Mean When We Talk About Judicial Dialogue: Reflections of a Judge of the Inter-American Court of Human Rights, 30 Harv. Hum. Rts. J. 89 (2017); but see Jorge Contesse, The Last Word? Constitutional Dialogue and the Inter-American Court of Human Rights, 15 Int'l J. Const. L. 414 (2017).
112 See, e.g., Paola Andrea Acosta Alvarado, Diálogo Judicial y Constitucionalismo Multinivel: El Caso Interamericano (2015); Diálogo Jurisprudencial en Derechos Humanos (Eduardo Ferrer Mac-Gregor & Alfonso Herrera García eds., 2013). For Judge Ferrer Mac-Gregor, conventionality control is both “cause and consequence of judicial dialogue.” See Eduardo Ferrer Mac-Gregor, The Conventionality Control as a Core Mechanism of the Ius Constitutionale Commune, in Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune 325 (Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Moralies Antoniazzi, Flávia Piovesan & Ximena Soley eds., 2017).
113 Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Inter-Am. Ct. H.R., Advisory Opinion OC-21/14 (Aug. 19, 2014) (requested by the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay, and the Oriental Republic of Uruguay).
114 Id., para. 31.
115 See Douglas NeJaime & Reva Siegel, Conscience Wars in the Americas, 5 Lat. Am. L. Rev. 1 (2020).
116 The European Court of Human Rights has, for its part, so far consistently rejected the finding of a right to same-sex marriage under the European Convention on Human Rights. See Schalk and Kopf v. Austria, App. No. 30141/04, Judgment (Eur. Ct. Hum. Rts. June 24, 2010); Hämäläinen v. Finland, App. No. 37359/09, Judgment (Eur. Ct. Hum. Rts. July 16, 2014); Chapin and Charpentier v. France, App. No. 40183/07, Judgment (Eur. Ct. Hum. Rts. June 9, 2016).
117 See Jorge Contesse, Sexual Orientation and Gender Identity in Inter-American Human Rights Law, 44 N.C. J. Int'l L. 353 (2019).
118 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 6 (2008).
119 As I explain below, the Inter-American Court's opinion has caused both domestic implementation and transnational backlash at the same time. See id. at 425 (“Successful litigation for significant social reform runs the risk of instigating countermobilization.”)
120 State Obligations Advisory Opinion, supra note 6.
121 Id., para. 2. Specifically, Costa Rica asked: (1) whether states must “recognize and facilitate the name change of an individual in accordance with his or her gender identity”; (2) whether the lack of administrative procedures for name change in such circumstances could be considered contrary to the American Convention on Human Rights; (3) whether the American Convention requires states to recognize all economic rights that derive from a same-sex relationship; and (4) whether there must be a specific mechanism to govern relationships between persons of the same sex for the state to recognize all the economic rights that derive from that relationship.
122 See Section IV.C.1.i infra.
123 State Obligations Advisory Opinion, supra note 6, para. 32. The Court observed that it did not espouse the terms but that, “taken from multiple international organic sources, they seem to be the most common on the international plane.” The sources the Court refers to go from UN documents to reports by the Inter-American Commission to soft law instruments, such as the Yogyakarta +10 Principles. Id.
124 Id., para. 61.
125 Id., paras. 68–80.
126 Id., para. 116. The Court declared that such right stems from general principles concerning the right to a name and the right to identity, as articulated by international human rights law, in particular, the Inter-American Juridical Committee, the UN Human Rights Committee, and the European Court of Human Rights. Id., paras. 107–11.
127 Id., para. 127.
128 Id., para. 160. The Court did opine that administrative or “notarial” procedures were the most appropriate procedures to comply with the requirements, and expressly stated some of the principles that should govern such procedures when children's interests are at stake. Id., paras. 150–56. Besides considering the principle of progressive autonomy (para. 150) the Court declared that domestic procedures should respect the principle of non-discrimination; the principle of the best interest of the child; the principle of respect for the right to life, survival, and development; and the principle of respect for the child's views in all matters affecting them, in order to ensure their participation (para. 152).
129 The Convention does not define “family.” Two clauses refer, however, to the family, and are used in the Court's analysis: Article 11(2) states: “No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.” Also, Article 17(1) establishes that: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.”
130 Id., para. 175.
131 Id., para. 181.
132 Id., para. 189. Although the issue was never considered during the 1969 San José Conference where the Convention was adopted, the Court justified its finding in the original intent of the drafters, as the drafters “did not presume to know the absolute scope of the fundamental rights and freedoms recognized therein.” Id., para. 193.
134 Id., para. 199.
135 Id., para. 3.5.
136 Id., para. 200 (emphasis added).
137 The Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles (known as “Yogyakarta +10 Principles”) are the result of a civil society coordinated effort to advance principles and norms on LGBTI rights.
138 The Court surveys the laws and judicial decisions from a number of countries, including Argentina (para. 208), Brazil (para. 209), Canada (para. 213), Chile (para. 210), Colombia (paras. 212 and 215), Ecuador (para. 211), Mexico (para. 206), the United States (para. 213) and Uruguay (para. 207); and opinions by the Human Rights Committee, the Committee on Economic Social and Cultural Rights, the Committee on the Elimination of Discrimination Against Women, and the European Court of Human Rights (para. 204).
139 On the need to use sound comparative methods to analyze international law cases, see Katerina Linos, How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics, 109 AJIL 475 (2015).
140 State Obligations Advisory Opinion, supra note 6, para. 218.
141 Id., para. 219.
142 Id., para. 223.
143 Id., paras. 225–26.
144 In June 2018, the Court of Justice of the European Union (CJEU) found that the term “spouse” includes spouses of the same sex even if states are not required to recognize same-sex marriage in their national laws. Relu Adrian Coman and Others v. Romania, C-673/16 (CJEU 2018). The CJEU did not find that states have an obligation to legalize same-sex marriage.
145 See Jorge Contesse, Judicial Interactions and Human Rights Contestations in Latin America, 12 J. Int'l Dispute Settlement __ (2021).
146 Vio Grossi's account of conventionality control can be read as a response to his colleague Ferrer Mac-Gregor, who is a strong supporter of the doctrine. See, e.g., Eduardo Ferrer Mac-Gregor, Conventionality Control: The New Doctrine of the Inter-American Court of Human Rights, 109 AJIL Unbound 93 (2015).
147 For example, in 2018, Judge Humberto Sierra Porto (a former member of the Constitutional Court of Colombia) wrote: “the Inter-American Court is an international tribunal and, therefore, it is reasonable to expect that it acts as such.” See Poblete Vilches and Others v. Chile, Merits, Reparations, and Costs, Inter-Am. Ct. Hum. Rts. (ser. C) No. 349, para. 12 (Mar. 8, 2018) (con. op., Sierra Porto, J.) (emphasis added). On the difference between the Court's international and constitutional authority, see Contesse, supra note 106.
148 These are unusual adjectives to be found in an Inter-American Court's separate opinion. Traditionally, inter-American judges do not engage in legal discussions with their colleagues. Symptomatically, dissenting opinions are not titled “dissenting,” but “separate opinions,” a showing of the Inter-American Court's ethos as a non-confrontational judicial forum.
149 In Vio Grossi's words: “[I]n the exercise of its competences, it is not incumbent upon the Court to amend the [American] Convention; thus, its advisory or non-contentious jurisdiction should not seek to exercise the normative function, which is generally expressly conferred on the states . . . .” State Obligations Advisory Opinion, supra note 6, sep. op., Vio Grossi J., para. 7. See also Calidonio Schmid, supra note 64, at 415 (“[A]dvisory opinions must encourage, but not compel, states to behave in a certain manner.”).
150 Judge Vio Grossi notes that “it is not appropriate that [the Court] order the adoption of any conduct” (para. 10). Jo Pasqualucci has also argued that, “[a] tribunal does not have the authority under its advisory jurisdiction to order judicial sanctions or impose duties or obligations on any state.” Pasqualucci, supra note 64, at 246. Former members of the Court have apparently argued in favor of a less rigid separation between the Court's contentious and advisory jurisdictions. See, e.g., Thomas Buergenthal, International Human Rights in a Nutshell 220 (1995) (“The mere fact that the Court has made a pronouncement in an advisory opinion rather than in a contentious case does not diminish the legitimacy or authoritative character of the legal principle enunciated by it.”)
151 State Obligations Advisory Opinion, supra note 6, sep. op., Vio Grossi J., para. 84.
152 Id., para. 85.
153 He notes: “The OC-24 itself recognizes that only six of the 23 States Parties to the Convention and eight of the 34 Member States of the OAS have laws on marriage between same-sex couples. At the global level, around 24 of the 193 members of the United Nations include in their laws. . . .” Id., para. 89.
154 Id., para. 95.
155 Id., para. 101.
156 See Section II.B supra.
157 Hurst Hannum has similarly observed that, “treating rights as a comprehensive quasi-religious doctrine within which all answers may be found is nonsense.” See Hurst Hannum, Reinvigorating Human Rights for the Twenty-First Century, 16 Hum. Rts. L. Rev. 409, 439 (2016).
158 Fuentes Torrijo, supra note 106.
159 NeJaime & Siegel, supra note 115.
160 In June 2018, the Supreme Court of Chile issued a 3–2 decision which used—albeit in passing—the Inter-American Court's opinion to rule that a trans individual had a right to name change without the need to undergo surgery or hormonal treatment. See Supreme Court of Chile, Decision [No identification to protect applicant's identity] (May 29, 2018) (on file with author). Similarly, the Constitutional Chamber of Costa Rica's Constitutional Court requested an opinion from the country's Attorney General's Office on the binding character of the Inter-American Court's advisory opinion. See Laura Alvarado, Costa Rica's Attorney General Confirms Ruling of Inter-American Court Regarding Same Sex Marriage is Binding, Costa Rica Star (May 13, 2018), at https://news.co.cr/costa-rica-lgbti-rights-gay-rights-costa-rica-marriage/73000. The attorney general declared that the advisory opinion is binding upon Costa Rican judges. Also, Costa Rica's Supreme Electoral Tribunal announced that individuals may now change their name at will according to their gender identity, in conformity with the Inter-American Court's pronouncement. See Laura Alvarado, Transgender Population in Costa Rica Will Be Able to Choose the Name Shown in Their ID, Costa Rica Star (May 14, 2018), at https://news.co.cr/transgender-population-in-costa-rica-will-be-able-to-choose-the-name-shown-in-their-id/73032.
161 Supreme Court of Costa Rica, Constitutional Chamber, Exp: 15-013971-0007-CO, Decision No. 12782–2018 [no identification of parties to protect applicants’ identities], para. IX (Aug. 8, 2018) (Costa Rica), at https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-875801 [hereinafter Decision No. 12782-2018]. The court rested on previous decisions where it has established timeframes for legislative action, as well as examples from other constitutional courts, such as the Austrian Constitutional Court, the Colombian Constitutional Court, the South African Constitutional Court, the Constitutional Court of Taiwan, and the Supreme Courts of Massachusetts and Vermont in the United States. Id. at 35–36. On the use of postponed remedies by constitutional courts, see Holning Lau, Comparative Perspectives on Strategic Remedial Delays, 91 Tulane L. Rev. 259 (2016).
162 Constitutional Court of Ecuador, Cases No. 10-18-CN and No. 11-18-CN, Same-Sex Marriage (June 12, 2019) (Ecuador).
163 Von Bogdandy & Urueña, supra note 102.
164 Laurence R. Helfer & Erik Voeten, International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe, 68 Int'l Org. 77, 79 (2016).
165 Decision No. 12782-2018, supra note 161, para. IX.
166 Harmeet Kaur, Costa Rica Becomes the First Central American Country to Legalize Same-Sex Marriage, CNN (May 26, 2020), at https://www.cnn.com/2020/05/26/americas/costa-rica-legalizes-same-sex-marriage-trnd/index.html.
167 On the doctrine of “unconstitutional state of affairs,” see Colombian Constitutional Court, Decision T-025 of 2004 (Jan. 22, 2004) (Colom.), available at https://www.brookings.edu/wp-content/uploads/2016/07/Colombia_T-025_2004.pdf. On the use of the doctrine by the Brazilian Supreme Court, see Raffaele de Giorgi & Diego de Paiva Vasconcelos, Os fatos e as Declarações: Reflexões sobre o Estado de Ilegalidade Difusa, 9 Rev. Direito Práx. 480, 484 (2018). On the use of the doctrine by the Peruvian Constitutional Court, see Renato Vásquez Armas, La Técnica de Declaración del “Estado de Cosas Inconstitucional”: Fundamentos y Análisis de su Aplicación por el Tribunal Constitucional Peruano, 41 Ius et Veritas 128 (2010), and Edwin Figueroa Gutarra, Estado de Cosas Inconstitucional y Jueces ¿Relaciones de Exclusión o Complementariedad?, 11 Ipso Jure 6 (2019).
168 Decision No. 12782–2018, supra note 161, at 34 (emphasis added).
169 Id., para. VII, second to last paragraph, p. 28.
170 Alter, supra note 44, at 15 (“most people expect signing of a treaty to give rise to a binding obligation”) (emphasis added). In her concurrence, Judge Hernández López explained that “it is out of discussion that the Inter-American Court's advisory opinions, especially those requested by Costa Rica, are legally binding.” Decision No. 12782–2018, supra note 161, at 40–41 (Hernández López, J., concurring) (emphasis added). Hernández López's argument, however, is peculiar: she noted that, pursuant to the 1983 Headquarters Agreement between the government of Costa Rica and the Inter-American Court of Human Rights, the Supreme Court must give binding force to “any resolution” by the Inter-American Court, including advisory opinions. Agreement Between the Government of the Republic of Costa Rica and the Inter-American Court of Human Rights, Art. 27, Sept. 9, 1983, Law No. 6,889, available at https://www.corteidh.or.cr/docs/otros/convenio.pdf (emphasis added). In his separate opinion to the Inter-American Court's advisory opinion on same-sex marriage, Judge Vio Grossi notes that states may “unilaterally assign them a binding nature,” as the Costa Rican Supreme Court did in its Judgment 0421-90. State Obligations Advisory Opinion, supra note 6, sep. op., Vio Grossi, J., n. 544.
171 State Obligations Advisory Opinion, supra note 6, sep. op., Castillo Víquez, Chief J., at 153.
172 State Obligations Advisory Opinion, supra note 6, sep. op., Hernández Gutiérrez, J., at 96.
173 Id. at 100.
174 In the Inter-American Court's Advisory Opinion 12–91, the Inter-American Court refused Costa Rica's request because, the Court noted, it “could produce, under the guise of an advisory opinion, a determination of contentious matters not yet referred to the Court, without providing the victims with the opportunity to participate in the proceedings.” See Advisory Opinion OC-12/91, supra note 79, para. 28.
175 State Obligations Advisory Opinion, supra note 6, sep. op., Hernández Gutiérrez, J., at 95. Judge Hernández Gutiérrez's dissent does not mention two other petitions that were pending before the Inter-American Commission: one filed against Chile in 2012 (available at https://www.vancecenter.org/wp-content/uploads/2019/10/movilh-denuncia.pdf) and another one filed against Mexico in 2014 (available at https://www.vancecenter.org/wp-content/uploads/2019/10/mexico-denuncia.pdf).
176 State Obligations Advisory Opinion, supra note 6, sep. op., Hernández Gutiérrez, J., at 97.
177 See Section IV.D infra.
178 Constitutional Court of Ecuador, Decision No. 184-18-SEP-CC, at 58 (May 29, 2018) (Ecuador), at http://doc.corteconstitucional.gob.ec:8080/alfresco/d/d/workspace/SpacesStore/bdcf8eb2-6f40-447e-9bdd-4cf152c7b311/1692-12-ep-sen.pdf?guest=true. The court based its finding on Article 424 of the Ecuadorean Constitution, which states: “The Constitution is the supreme law of the land and prevails over any other legal regulatory framework. The standards and acts of public power must be upheld in conformity with the provisions of the Constitution; otherwise, they shall not be legally binding. The Constitution and international human rights treaties ratified by the State that recognize rights that are more favorable than those enshrined in the Constitution shall prevail over any other legal regulatory system or action by public power.”
179 Constitutional Court of Ecuador, Cases No. 10-18-CN and No. 11-19-CN, supra note 162.
180 Constitutional Court of Ecuador, Case No. 10-18-CN, para. 81 (emphasis added).
181 Id., para. 85.
182 Advisory Opinion OC-22/16, supra note 38, para. 26.
183 Reports of the Inter-American Commission on Human Rights (Art. 51 American Convention on Human Rights), Advisory Opinion OC-15, Inter-Am. Ct. H.R. (ser. A) No. 15, para. 26 (Nov. 14, 1997). The dissent notes that legal scholars generally agree that such legal effect rests on international courts’ “moral” authority (paras. 89–90).
184 The court also declared that advisory opinions have significant “democratic legitimacy,” as the Inter-American Court normally welcomes submissions by any interested party in the result of the advisory proceedings. Case No. 11-18-CN, supra note 162, para. 35.
185 Case No. 184-18-SEP CC, supra note 178, at 58, quoted by Case No. 11-18-CN, supra note 162, para. 37 (emphasis added).
186 Case No. 11-18-CN, supra note 162, para. 109. Arguably, under the proportionality test, the court's analysis should have stopped with its finding that there is no valid purpose. However, “in order to bolster the most faithful interpretation to the Constitution and demonstrate exhaustively the need for a rights-based interpretation,” the court conducted a full proportionality test, inquiring into the measure's suitability, necessity and reasonableness (or “proportionality stricto sensu”). On the principle of proportionality, see Robert Alexy, A Theory of Constitutional Rights (2002).
187 See, e.g., Elena Abrusci, The IACtHR Advisory Opinion: One Step Forward or Two Steps Back for LGBTI Rights in Costa Rica?, EJIL:Talk! (Feb. 27, 2018).
188 OHCHR, Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, Sexual Orientation and Gender Identity: UN Expert Hails Historic Legal Opinion Issued in Americas (Jan. 12, 2018), at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22582&LangID=E.
189 Daniel Berezowsky Ramirez, Latin America Could Lead the Way for LGBT Rights in 2018, Human Rights Watch (Feb. 6, 2018), at https://www.hrw.org/news/2018/02/06/latin-america-could-lead-way-lgbt-rights-2018.
190 AFP, Inter-American Court Endorses Same-Sex Marriage; Costa Rica Reacts, Tico Times (Jan. 10, 2018), at https://ticotimes.net/2018/01/10/costa-rica-reacts-inter-american-court-ruling-on-same-sex-marriage.
191 See René Urueña, Evangelicals at the Inter-American Court of Human Rights, 113 AJIL Unbound 360 (2019). Such jurisprudence, which has always been a feature of the Court's case law, became more salient in 2012, when the Court issued groundbreaking judgments on sexual orientation and reproductive rights. See Atala Riffo and Daughters v. Chile, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 239 (Feb. 24, 2012); Artavia Murillo v. Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 257 (Nov. 28, 2012).
192 See Mikael Rask Madsen, Pola Cebulak & Micha Wiebush, Backlash Against International Courts: Explaining the Forms and Patterns of Resistance to International Courts, 14 Int'l J. L. Context 197 (2018).
193 See Statement from the Governments of Argentina, Brazil, Chile, Colombia and Paraguay, supra note 7.
195 On backlash against the inter-American human rights system, see Ximena Soley & Silvia Steininger, Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights, 14 Int'l J. L. Context 237 (2018); and Jorge Contesse, Resisting the Inter-American Human Rights System, 44 Yale J. Int'l L. 179 (2019).
196 Soley & Steininger, supra note 195.
197 See Jorge Contesse & Alexandra Huneeus, Introduction to Symposium. The American Convention on Human Rights and Its New Interlocutors, 113 AJIL Unbound 351 (2019); Julieta Lemaitre & Rachel Sieder, The Moderating Influence of International Courts on Social Movements: Evidence from the IVF Case Against Costa Rica, 19 Health & Hum. Rts. J. 149 (2017). Traditionally, groups lobbying the inter-American system were human rights organizations formed to fight against impunity in the aftermath of the dictatorial regimes of the 1970s and 1980s. See Ximena Soley, The Crucial Role of Human Rights NGOs in the Inter-American System, 113 AJIL Unbound 355 (2019).
198 See Diana Cariboni, Attack the OAS: Inside the Ultra-Conservative War on the Inter-American Human Rights System, Open Democracy (Dec. 5, 2019), at https://www.opendemocracy.net/en/5050/attack-oas-inside-ultra-conservative-war-inter-american-human-rights-system. According to a current member of the Inter-American Commission on Human Rights, the U.S. State Department “said they could not give money to spend on my rapporteurship because we were promoting abortion.” In December 2018, nine U.S. senators sent a letter to Secretary of State Mike Pompeo asking that the U.S. government cut funding to the Commission because of the Commission's work on women's reproductive rights. Letter from U.S. Senators to Secretary of State Mike Pompeo (Dec. 21, 2018), available at https://www.lankford.senate.gov/imo/media/doc/OAS%20letter%20to%20Sec%20Pompeo.pdf. In March 2019, Pompeo announced that the United States would reduce its contribution to the Organization of American States “to safeguard U.S. taxpayer dollars and protect and respect the sanctity of life for people all around the globe.” See U.S. Dep't of State Press Release, Sec. of State Michael R. Pompeo Remarks to the Press (Mar. 26, 2019), at https://2017-2021.state.gov/remarks-to-the-press-7/index.html.
199 Human Rights Watch's Director for the Americas sent a letter to all five governments, denouncing the statement as a “grave mistake.” See Letter from José Miguel Vivanco, HRW Americas Director (Apr. 25, 2019). José Miguel Vivanco, Twitter (Apr. 25, 2019, 11:04 AM), at https://twitter.com/JMVivancoHRW/status/1121429863943016448. The Center for Justice and International Law released a statement with more than two hundred endorsements from NGOs and individuals, Attacks on the Inter-American Human Rights System Violate the Regional Protection of Human Rights (May 3, 3019), available at https://twitter.com/JMVivancoHRW/status/1121429863943016448; and sixty-three law professors published Posicionamiento frente a la Declaración sobre el Sistema Interamericano de Derechos Humanos emitida por los gobiernos que encabezan (May 9, 2019), available at https://ibero.mx/files/2019/posicionamiento_cidh_ibero_osidh.pdf.
200 See ¿Qué y quién está detrás de la avanzada para limitar el Sistema Interamericano de Derechos Humanos?, France24 (June 26, 2019), available at https://www.france24.com/es/20190625-limites-sistema-interamericano-ddhh-oea.
201 Latin America's Human-Rights Court Moves into Touchy Territory, Economist (Feb. 1, 2018), at https://www.economist.com/the-americas/2018/02/01/latin-americas-human-rights-court-moves-into-touchy-territory.
202 See Javier Corrales, The Expansion of LGBT Rights in Latin America and the Backlash, in Oxford Handbook of Global LGBT and Sexual Diversity Politics (Michael J. Bosia, Sandra M. McEvoy & Momin Rahman eds., 2019).
203 See Inter-Am. Comm. H.R., Observaciones a la Solicitud de Opinión Consultiva, at https://www.corteidh.or.cr/cf/jurisprudencia2/observaciones_oc.cfm?nId_oc=1671.
204 State Obligations Advisory Opinion, supra note 6, para. 218.
205 All draft versions of the project of American Convention contemplated provisions on marriage that refer to “the right of men and women” (emphasis added).
206 At the San José Conference, the delegations of Colombia and the United States submitted a joint amendment to the provision regulating the right to adoption (Article 16(6) of the Draft Convention). Their goal was to ensure that adoption procedures would contemplate measures to protect “the minor, the child's biological parents and the adopting parents.” Although the amendment failed, and the text of the Convention ultimately did not include any norms on adoption, the exchange that followed the submission of the proposal is illustrating: the Chilean representative asked the proponents to better explain what their purpose was, “because in his view the text seemed to address matters that belong to family law and adoption, which are different from human rights issues.” The Panamanian delegate seconded and “urged the U.S. and Colombian delegates to reflect on Chile's observations.” The Colombian delegate noted that adoption does have international relevance for the protection of human rights, but his (and the U.S.) position was ultimately defeated. San José Conference, at 229 (emphasis added).
207 See Lucas Lixinski, Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law, 21 Eur. J. Int'l L. 585, 588 (2010).
208 Obergefell v. Hodges, 576 U.S. 644 (2015).
209 The Court found that “the protection of the family relationship of a same-sex couple goes beyond mere patrimonial [economic] rights issues,” and must include all kinds of rights—civil, political, economic or social. State Obligations Advisory Opinion, supra note 6, para. 198 (emphasis added).
210 Id., para. 28 (emphasis added). As Helfer and Voeten note, “erga omnes effect of IC rulings is . . . highly contested, both politically and legally.” Helfer & Voeten, supra note 164, at 78.
211 Nicolás Carrillo-Santarelli, The Politics Behind the Latest Advisory Opinions of the Inter-American Court of Human Rights, Int'l J. Const. L. Blog, (Feb. 24, 2018), at http://www.iconnectblog.com/2018/02/the-politics-behind-the-latest-advisory-opinions-of-the-inter-american-court-of-human-rights.
212 Order of the Inter-American Court of Human Rights: Request for an Advisory Opinion Presented by the Inter-American Commission on Human Rights, supra note 49. The request for an advisory opinion came from the Inter-American Commission, which asked the Court to advise on whether there should be “judicial control over the impeachment proceeding . . . [as well as over the] result of impeachment proceedings” [id., paras. 2.ii.b.1–2]; to determine the grounds on which the legislature can institute impeachment proceedings against elected presidents [id., para. 2.ii.e]; and the cases in which impeachment proceedings could violate the human rights of the person impeached [id., para. 2.ii.f]; as well as those of the people who voted for her [id., para. 2.ii.g]. In general, the Commission was concerned with “the potential implications of the arbitrary use of this mechanism to the exercise of human rights.” Id., at 3.
213 Inter-Am. Comm. H.R., Request for an Advisory Opinion Submitted before the Inter-American Court of Human Rights, paras. 8-9 (Oct. 13, 2017), available at https://www.corteidh.or.cr/docs/solicitudoc/solicitud_13_10_17_eng.pdf.
214 Simon Romero, Dilma Rousseff Is Ousted as Brazil's President in Impeachment Vote, N.Y. Times (Aug. 31, 2016), at https://www.nytimes.com/2016/09/01/world/americas/brazil-dilma-rousseff-impeached-removed-president.html.
215 Inter-Am. Comm. H.R. Press Release, IACHR Expresses Concern Over Impeachment of President of Brazil, Press Release No. 126/16 (Sept. 2, 2016), at https://www.oas.org/en/iachr/media_center/PReleases/2016/126.asp.
216 Order of the Inter-American Court of Human Rights: Request for an Advisory Opinion Presented by the Inter-American Commission on Human Rights, supra note 49.
217 Bailliet, supra note 64.
218 See Section IV.C.1.i supra.
219 In particular, the amendment should affect Article 73 of the Inter-American Court's Rules of Procedure, which regulates the procedure for the adoption of advisory opinions, and the Court may easily amend.
220 Relatedly, advisory opinions can also serve as substitute for other international human rights disputes mechanisms. In the context of the inter-American human rights system, I have argued that Latin American states resort to the Inter-American Court's advisory jurisdiction to bring interstate communications in disguise. See Jorge Contesse, Inter-States Cases in Disguise in the Inter-American Human Rights System: Advisory Opinions as Inter-States Disputes, Völkerrechtsblog (Apr. 27, 2021).
221 Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, CETS No. 214 (Aug. 1, 2018). Under Protocol 16, national courts may seek advisory opinions from the European Court. Commentators note that the goal of Protocol No. 16 is to keep the “interjurisdictional cooperation between the European Court and national judges.” See Laurence Burgorgue-Larsen, Le Protocole N° 16: Entre théories et réalités du dialogue judiciaire, Hors-Série Revue Québécoise de Droit International 219, 220 (2020).
222 See Contesse, supra note 106.
223 See Council of Europe, Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms: Explanatory Report (n/d), available at https://www.echr.coe.int/Documents/Protocol_16_explanatory_report_ENG.pdf.
224 See Guzman, Andrew T., International Tribunals: A Rational Choice Analysis, 157 U. Pa. L. Rev. 171, 192 (2008)Google Scholar.
226 See Section II.A supra.
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