Inter-American Lessons on Backlash

This paper will analyze instances of State backlash against the IACtHR in order to understand the factors driving it and to assess whether institutional responses been commensurate to the challenges raised. The pushback that some international tribunals have only recently become acquainted with has figured prominently in the history of the Inter-American Court of Human Rights (IACtHR). Challenges to its authority have taken different forms, originated in different quarters and pursued different aims. Institutional responses have been just as varied. Although backlash can come from any relevant system actor, it is State organs - particularly domestic high courts and the Executive – that have in practice been the only relevant challengers of the IACtHR’s authority. The broad repertoire of measures taken by States to push back against the Inter-American Court include: withdrawals, threats of withdrawal, slander, open defiance of its judgments or their neglect, as well as financial instability and attempts to water-down its powers. In turn, the responses to such backlash have ranged from discrete diplomacy, to clever legal interpretations, legal or institutional reforms, and alliance-building with civil society and other State actors. Despite the fact that each instance of backlash is driven by a unique set of factors, there are shared and overarching themes of this phenomenon in the Americas. Light will be shed on these common themes with the aim of pinpointing tensions that are more regional in character and those that fit into broader international trends.