A. Defining Latin American Transformative Constitutionalism

Transformative constitutionalism describes the practice of interpreting and applying constitutional norms in a way that seeks to promote deep social change. In its English-language version, the notion was initially proposed by the American scholar Karl Klare in the context of South African constitutional adjudication in the late 1990s.Footnote ³ Klare, who argues that transformative constitutionalism is part of “post-liberal law,” is keen on giving his conception a Critical Legal Studies bend. Following the South African scholar Theunis Roux, we believe, however, that the transformative approach to interpretation can be squared with liberal constitutionalism.Footnote ⁴ Indeed, around the same time and similar to South Africa, many Latin American judges, activists, and academics started using policy-oriented techniques of legal interpretation from the liberal mainstream (such as the principle of proportionality) in order to transform political and distributive realities in the region, an approach often labeled “neo-constitutionalism.”Footnote ⁵

We understand transformative constitutionalism as an approach to legal interpretation that considers the effective transformation of deeply entrenched structures toward a more egalitarian or democratic society one of the paramount goals of interpretative practice. The phenomenon has special relevance for Latin America, which particularly suffers from violence, exclusion, and weak institutions. Latin America represents about 8 percent of the world's population, but 33 percent of its homicides in 2018. Four countries in the region (Brazil, Colombia, Mexico, and Venezuela) accounted in 2018 for almost 25 percent of all the murders in the world.Footnote ⁶ The judicial practice of the IACtHR, we argue in the next section, reflects some of the characteristics of transformative constitutionalism in its response to these conditions.

Latin America does not present the only case of transformative constitutionalism.Footnote ⁷ The Indian Supreme CourtFootnote ⁸ and the South African Constitutional Court,Footnote ⁹ for example, have developed a distinct jurisprudence to address structural problems, in particular deep patterns of injustice.Footnote ¹⁰ To frame transformative constitutionalism in more theoretical terms, the notion of “responsive law” that Nonet and Selznick introduced in the late 1970s is helpful.Footnote ¹¹ In their seminal work, the authors identify various forms of legal ordering. The first one is “repressive law,” in which the ultimate goal of the legal system is order, legal reasoning is ad hoc, expedient, and particularistic, coercion is extended and weakly restrained, and law is generally subordinated to power politics. The second is “autonomous law,” in which the goal of the legal system is legitimation, legal reasoning adheres strictly to legal authority (but is susceptible to excessive formalism), coercion is controlled by legal restraints, and law is generally not at the whim of politics.Footnote ¹²

These two archetypes paint an accurate picture of the context in which transformative constitutionalism emerged in Latin America. On the one hand, many scholars and activists have regarded law as a continuation of the politics of repression that characterized much of the region. From this perspective, constitutionalism could not work as a viable platform for social change, thus leaving it to electoral politics, social mobilization, or even armed revolution. On the other hand, the archetype of autonomous law reflects the strand of formalistic legal thought that characterized constitutionalism in the region, which focused on legal forms and turned a blind eye to their actual effects in real life.

While autonomous law is a great improvement over the repressive archetype, Nonet and Selznick argue, it usually ignores distributive impacts. They therefore suggest a third archetype: a “responsive” law in which the legal system, building on the premise of an autonomous law, responds to social need and aspirations. Legal actors, in this archetype, test “alternative strategies for the implementation of mandates and reconstructing those mandates in the light of what is learned.”Footnote ¹³ Such a process implies a redistribution of resources within society—a redistribution that “transforms” social structures. Hence, what Nonet and Sleznick call “responsive law” undergirds a transformative approach to the legal system that regards law as separate from politics but is still concerned with its effects on society.

What we describe as “transformative constitutionalism,” therefore, is an approach to constitutional texts, a set of empirical assumptions, argumentative tools, and normative goals that coalesce around the notion that legal interpretation should strive toward being responsive to society's problems. Such an approach can have both critical and pragmatic modes. In its critical mode, transformative constitutionalism points out the distributive consequences of purely formal or technical questions of constitutional adjudication. In its pragmatic mode, transformative constitutionalism interprets legal texts with the specific goal of realizing constitutional objectives, which often implies changing or transforming current structures.Footnote ¹⁴

Defining transformative constitutionalism as an approach to legal interpretation narrows the kinds of questions that can be studied through its prism. In particular, questions of whether the intended social transformations are fully realized is not central to our inquiry: transformative constitutionalism “works” as soon as courts or other actors deploy its particular interpretative stance. The fact that a decision informed by a transformative approach does not deeply “transform” society in the short or medium term, does not make such a decision less exemplary of transformative constitutionalism.

As an example, consider the Colombian Constitutional Court's ambitious decision of 2005 that aimed to protect the rights of the internally displaced population (IDP) in that country.Footnote ¹⁵ At the time of the decision, Colombia had more than 3.5 million IDP—the largest in the world. The government's numerous policies on IPDs had not brought concrete results, due to systematic implementation failures and insufficient allocation of resources.Footnote ¹⁶ Facing this situation, the Colombian Constitutional Court issued an unprecedented decision, in which it sought to reverse the inertia of dormant bureaucracies, and gave orders that sought to incentivize the construction of institutional capabilities, coordinate different agencies responsible for tackling the humanitarian challenge, and create reliable indicators to monitor policy implementation. The decision was notable in its ambition, and is reflective of a transformative constitutionalism mindset to the extent that one of its guiding objectives was to transcend the formalism of legal categories and transform the actual situation of the displaced population—an approach encapsulated in the Court's attempt to measure the “effective enjoyment of rights.”Footnote ¹⁷ The Constitutional Court's decision succeeded in catalyzing a coordinated front for tackling the IDP crisis in Colombia, including a joint effort with civil society organizations, and many policies that undoubtedly left IDPs better off were adopted. However, thus far, the decision's effects have been limited, as the rights of this population continue to be violated: IDPs continue being one of most vulnerable groups among Colombians.Footnote ¹⁸ This situation, we submit, does not undermine the “transformative” character of the decision, however, because it approached the constitutional text with the intent to have an impact on reality over the long term.

In this sense, the realm of transformative constitutionalism is that of legal interpretation, not of public policy effects. To be sure, a transformative interpretation of legal texts will often imply an assessment of how to achieve the desired outcomes. If that calculation fails, however, and if the outcome is not achieved, or if society achieves the outcome through means not connected to a particular judicial decision, the interpretation would remain “transformative” regardless of its impacts.

Why do we use this concept of constitutionalism for the Inter-American regime of human rights? First, because the admittedly charged concept of “constitutionalism” is useful to account for the Inter-American regime's close connection to domestic constitutional law: the transformative thrust of the interpretations by the IACtHR is triggered and supported by particular features of domestic constitutions.Footnote ¹⁹ Second, because the Court's interpretation of the American Convention reflects the particular approach of what is called “transformative constitutionalism,” as one of its interpretive objectives is to transform realities in the region—in particular to address structures of violence, exclusion, and weak institutions. Finally, because the Court operates much like a domestic constitutional court, not least because it has declared that parliamentary statutes contrary to the Convention are void, a power usually reserved to constitutional adjudication. We wish to stress that we do not see transformative constitutionalism in Latin America as the iteration of global or international constitutionalism.Footnote ²⁰ Indeed, we use different analytical frames for the general development of institutional international law.Footnote ²¹

B. The IACtHR's Transformative Mandate

The transformative interpretation of treaties by the Inter-American Court rests on a dynamic interaction with the transformative mandate of domestic constitutions. To understand this crucial link, one needs to consider the region's history. In the 1960s, when the American Convention was debated, most Latin American countries were under authoritarian or repressive governments. The 1970s were a particularly dark period. Only from the 1980s onward did the countries of the region make a slow transition toward democracy, seeking to ensure a ¡Nunca Más! Footnote ²² of massive human rights violations in their societies. To do so, they locked in a broad social consensus by enacting new constitutional texts: Brazil in 1988, Colombia in 1991, Paraguay in 1992, Peru in 1993, Ecuador in 1998 and 2008, Venezuela in 1999, and Bolivia in 2009.Footnote ²³ Other countries reformed their constitutions accordingly, such as Argentina in 1994 and Mexico in 2011. The outlier is Chile, where the Constitution enacted under the Pinochet regime in 1980 is still in force, notwithstanding some important amendments and a process of constitutional change that started in 2019.Footnote ²⁴

What these domestic constitutional transformations have in common is that they adopted a transformative approach to the law. The new constitutions were specifically designed to overcome, in Nonet and Selznick's terms, the dark legacy of repressive laws. At the same time, though, they also sought to go beyond the premise of autonomous law and its risk of extreme formalism.Footnote ²⁵ Most constitutions in the region introduced a generous bill of fundamental rights, including socioeconomic rights,Footnote ²⁶ as well as clauses intended to improve democratic participation, be it direct participation or better representation.Footnote ²⁷ All this built on a deeper shift that reflected the emergence of a responsive archetype, one that viewed law not as the product of an elite keen on obstructing social change (a vision widely held by progressives in the region in the 1960s and 1970sFootnote ²⁸) but as a crucial instrument for social transformation. In a wide indictment of the legal formalism that dominated the region at the time, the forces behind these constitutional changes sought to protect rights in real life and to guarantee true participation in the emerging democratic decision-making processes.Footnote ²⁹

Such a transformative approach would have remained a matter of domestic constitutional law, unrelated to international adjudication, were it not for the fact that these new constitutions also “opened” domestic law to international law, in particular to human rights law, through clauses incorporating international law in domestic legal systems. While there are significant variations among these clauses, with Chile being the least open, the overall outcome was a deep integration of domestic and international human rights law, thereby allowing the American Convention and its institutions to play a key role in domestic constitutional law. For example, the 2009 Bolivian Constitution gave international human rights treaties the same status as the Constitution. The 2008 Ecuadorian Constitution provided for the integration of international human rights, albeit with a lower status than the constitutional text, while recognizing that human rights treaties that provide for more favorable rights than the Constitution prevail in the domestic order over “any other legal norm or act of public power.” Brazil's 2004 constitutional amendment, in turn, established that human rights treaties approved by Congress by the same majority as a constitutional amendment would be considered an actual amendment and thus part of the constitution.Footnote ³⁰ Doctrinally, most countries conceive of this integration as the “block of constitutionality,” which is formed by the domestic constitution and the Inter-American ConventionFootnote ³¹ and constitutes one reason why the latter can be considered an integral part of domestic constitutional law in many states in the region.Footnote ³²

The substantive guarantee of constitutional rights, on the one hand, and constitutional openness, on the other hand, are in fact two complementary processes that create the space for international transformative constitutionalism. In the times of dictatorial regimes, Latin American civil society relied heavily on international and foreign institutions to advance change, as Keck and Sikkink seminally observed in the late 1990s in Argentina, Chile, and Mexico.Footnote ³³ The constitutional opening vis-à-vis international law can be read as the formal blessing of this strategy, as a way of formalizing the legal protections that activists had achieved in their struggle against authoritarian rule. Latin American transformative constitutionalism is a two-level system, therefore, in which a horizontal interaction among domestic institutions that share this transformative outlook provide supplemental support. These institutions include domestic judges, first and foremost, but also prosecutors, ombudspersons, specialized administrations, and, importantly, NGOs.Footnote ³⁴ This is why transformative constitutionalism in Latin America does not operate only thorough “judicial” means, but more broadly through “legal” means.

In sync with these changes, the IACtHR put forward a key doctrinal development that supports these constitutional developments: the evolutionary interpretation of human rights treaties, through which the Court started adapting the meaning of the Convention's guarantees, largely taken from the European Convention on Human Rights (ECHR), to the specific challenges of Latin America. The evolutionary interpretation of treaties evidences the Court's crucial embrace of a “transformative” approach, for it considers social transformation one of its guiding principles. In the words of the Court, “human rights treaties are living instruments, whose interpretation must accompany the evolution of times and current living conditions.”Footnote ³⁵ Through evolutionary interpretation, the Court expanded and deepened the protection of different rights with a specific Latin American twist, as can be seen in its jurisprudence—now globally recognized—on forced disappearances,Footnote ³⁶ privacy,Footnote ³⁷ personal liberty,Footnote ³⁸ children's rights,Footnote ³⁹ collective property,Footnote ⁴⁰ and equality and nondiscrimination.Footnote ⁴¹

The ambition of transformation through international law would have been pointless absent a specific tool for implementing the Court's interpretations. This tool is the doctrine of “conventionality control,”Footnote ⁴² which directly applies the judges’ evolutive interpretations to people's lives. In essence, the doctrine tasks domestic courts with reviewing any national act, including domestic laws, for compatibility with the American Convention on Human Rights, as interpreted by the IACtHR.Footnote ⁴³ The conventionality control doctrine turns every national judge into an Inter-American judge, therefore, with the proviso to respect “the framework of their respective jurisdiction and the corresponding procedural rules.”Footnote ⁴⁴ The European Court of Human Rights (ECtHR) never dared to go as far;Footnote ⁴⁵ rather, the IACtHR recalls the Court of Justice of the European Union, the world's most powerful supranational court, with its daring definition of the domestic effect of its decisions.Footnote ⁴⁶ The Inter-American Court has also claimed jurisdiction to review the conformity of domestic laws with the Convention.Footnote ⁴⁷ In exceptional cases, it has even claimed the power to enforce the Convention by finding that domestic statutes have “no legal effects,”Footnote ⁴⁸ a power usually reserved for constitutional adjudication.Footnote ⁴⁹ These moves greatly expand the American Convention's reach and create a veritable decentralized enforcement system that comprises not just Inter-American organs but potentially thousands of national authorities.Footnote ⁵⁰

It is beyond the scope of this Article to review all instances of Inter-American jurisprudence that have aimed at transforming deeply entrenched structures. However, three themes, which we discuss below, exemplify the reach of the Court's transformative thrust. The first is the Court's case law limiting amnesties for grave human rights violations in the region. In the last section of this Article, we discuss the Gelman decision, in which the Court, building on a well-established line of precedent, decided that Uruguay's law limiting the prosecution of human rights violations was in breach of the America Convention and had to be revoked, even though the law had been reviewed by a domestic court on several occasions and had twice been ratified in a free popular vote. This ruling, as we explain, transformed international adjudication with regard to domestic laws. Second, the Court has gone to great lengths to protect the rights of victims of human rights violations. We use as examples the Inter-American case law to protect the victims of the Colombian armed conflict, and particularly the innovative decision that recognized the status of the Community of Peace in San José de Apartadó, a grass roots community that defined itself as a “victim,” and was recognized as such by the Court, thus pushing the traditional categories of victimhood in international law. Third, the Court has also greatly advanced the legal framework to protect women's rights, as evidenced in Campo Algodonero, also discussed below, in which the judges redefined the approach to gender violence in Latin America. In all these areas, the Court has adopted an interpretive approach that, at its core, endeavors to bring about the profound social change that we label as international transformative constitutionalism.

A. The Latin American Human Rights Community

The Latin American human rights community is a group of actors that interact, on the basis of the Inter-American Convention on Human Rights, to promote their agendas and to fulfill what they regard as their mandates. This community of practice is composed of different actors: transnational NGOs that bring cases before the Inter-American system, grassroots organizations that use these rights to protect victims on the ground, clinics at law schools that file amicus briefs, domestic courts that interpret and apply the Convention and IACtHR case law, civil servants that work on human rights for domestic governments, scholars writing and teaching Inter-American human rights law, the commissioners and judges of the Inter-American system, and also politicians with a human rights agenda. The president of Costa Rica, who won the 2018 elections on a platform in which support for the Inter-American system was key, is a high-profile example.Footnote ⁵²

The concept of a community of practice originates in education research. In 1991, anthropologist Jean Lave and computer scientist Étienne Wenger proposed the notion of situated learning; learning, they argued, is fundamentally a social process and implies socialization.Footnote ⁵³ A community of practice, then, denotes a group of people that is defined by mutual engagement, a joint enterprise, and a shared repertoire, meaning “routines, words, tools, ways of doing things, stories, gestures, symbols, genres, actions, or concepts that the community has produced or adopted in the course of its existence and which have become part of its practice.”Footnote ⁵⁴ This notion was later taken up by international relations scholar Emanuel Adler, who suggests that “there is no reason . . . why we should not be able to identify transnational or even global communities of practice. The closer we get to the level of practices, in fact, the more we can take the international system as a collection of communities of practice—for example, communities of diplomats, of traders, of environmentalists, and of human rights activists. Communities of practice cut across state boundaries and mediate between states, individuals, and human agency, on one hand, and social structures and systems, on the other.”Footnote ⁵⁵

Communities of practices have been discussed in international law scholarship. Most importantly, Jutta Brunnée and Stephen Toope have applied the notion in order to analyze the problem of international legal obligation.Footnote ⁵⁶ For Brunnée and Toope, transnational communities of practice provided the space for interaction that created the emergence of such obligations: “legal obligation, then, is best viewed as an internalized commitment and not as an externally imposed duty matched with a sanction for non-performance.”Footnote ⁵⁷ This notion explains the workings of transformative constitutionalism in Latin America.

A community of practice does not imply homogeneity.Footnote ⁵⁸ Its members often have different, even conflicting, projects and views of human rights. In our understanding, a community of practice is not constituted by a single goal, but it requires common practices as well as a shared understanding of the social meaning of those practices.Footnote ⁵⁹ The Latin American human rights community shares a framework: its institutions, a body of law, its actors, the challenges to be faced—i.e., a sense of purpose—and its realities. This is not to say that all actors in the community of practice agree on all issues. In fact, members of the community may disagree on at least at three levels: first, by rejecting that the Court's activities should be framed in terms of transformative constitutionalism; second, by rejecting the Court's transformative approach;Footnote ⁶⁰ and, third, by rejecting the outcome of a particular case, or the remedies ordered by the Court, that reflect a transformative approach.Footnote ⁶¹ However, such disagreements do not undermine the claim that a community emerges around the transformative interpretative; on the contrary, they confirm its existence, in the sense that actors of the community of practice compete to give meaning to the American Convention. Such a debate thus reaffirms the relevance of the transformative constitutional approach and clarifies its legal framework. The framework allows for many views of Inter-American human rights, but continuous interaction settles the meaning of an international norm for a given case.

National judges are particularly important members of the community, which is why their engagement with decisions of the IACtHR is of particular importance.Footnote ⁶² In terms of identity, important national judges self-identify as “Inter-American judges”—even while voicing explicit disagreement with the Court on issues that affect them.Footnote ⁶³ Thus, for example, the (acting) president of the Costa Rican Supreme Court, Carmenmaría Escoto, explicitly affirmed that her court contributes to the construction of an Inter-American ius commune Footnote ⁶⁴—and this, just two years after her court's 2016 showdown with the Inter-American Court around in vitro fertilization (IVF), described below.

The notion of a community implies that there are insiders and outsiders. While homogeneity is not required among insiders, there are outsiders: first, and most obviously, there are those who simply are not engaging with Inter-American human rights law; and, second, those who seek to undermine the common practices of the community, or the shared understanding of their social meaning. The letter by the presidents of Argentina, Brazil, Chile, Colombia, and Paraguay provides a border line case. On the one hand, the letter engages with the system, supports its basic thrust and deploys legitimate arguments for its development; hence, the five presidents are part of the community. On the other, there is the suspicion that the letter could be part of a strategy to dismantle the system or to change its basic outlook, which would then position the five presidents as outsiders.

The fact that there is no homogeneity of meaning in the Latin American community of human rights practice allows for very different interpretations of the American Convention to coexist and to compete for influence. Another ambivalent case is that of conservative Evangelical Christian groups, which have mobilized important financial and political resources to resist certain decisions of the Inter-American Court, particularly concerning LGBTI rights. This tension came to its clearest expression in Costa Rica. On May 2016, the Costa Rican (center-left) government submitted a request for an advisory opinion on the issue of same-sex marriage with an idea to allow it against a hesitant legislature.Footnote ⁶⁵ The Court issued a groundbreaking opinion in 2017, holding that same-sex couples should enjoy all rights without discrimination, including marriage, and established standards on the self-determination of gender identity.Footnote ⁶⁶

The advisory opinion came just a year after a harsh standoff between the Costa Rican Supreme Court and the Inter-American Court, concerning IVF. In 2012, the IACtHR had held that Costa Rican Supreme Court's decision to declare IVF unconstitutional was in violation of the American Convention of Human Rights, and had to be revoked.Footnote ⁶⁷ Compliance with such a measure became highly contested in Costa Rica, with the Supreme Court at one point standing in open defiance of the IACtHR, declaring null and void the national norm that sought to implement the international order.Footnote ⁶⁸ During that confrontation, the Evangelicals in general, and Fabricio Alvarado Muñoz (not to be confused with Carlos Alvarado Quesada, the current president) in particular, were key players in resisting the implementation of the order—Fabricio Alvarado was, in fact, one of the proponents of the legal action that asked the Supreme Court to strike down the implementing norm.Footnote ⁶⁹ Such action to undermine the IACtHR's very authority is to be considered outside the community. The IACtHR reacted swiftly, adopting a stern decision for monitoring compliance in which it declared that IVF was, in effect, valid in Costa Rica—notwithstanding the Supreme Court's ruling.Footnote ⁷⁰ Ultimately, the Costa Rican judges accepted the IACtHR's authority, and decided to take “a step aside” and let the government implement the international order.Footnote ⁷¹ The Evangelicals in Congress kept up the fight,Footnote ⁷² although with little success to date.Footnote ⁷³

It was in that context that the IACtHR's 2017 advisory opinion on same sex marriage entered Costa Rican politics, provoking a fierce backlash among conservative—and especially Evangelical—movements in Costa Rica.Footnote ⁷⁴ The shift was sharp: in a matter of weeks, Fabricio Alvarado seized on the Court's opinion and made LGBTI rights the central theme of the presidential election, pushing him ahead of the other contenders. Taking his cue from the IVF confrontation, Alvarado said that national (and legislative) sovereignty had to be reclaimed from unduly international interference that promoted the “LGBTI agenda.”Footnote ⁷⁵ Evangelicals took the issue from the altars to the voting stations as a way to challenge a perceived international imposition upon local values, up to the point that the “election campaign was dominated by opposition candidate and evangelical Fabricio Alvarado Mu[ñ]oz's forthright criticism of gay marriage.”Footnote ⁷⁶ In an outcome that was completely unpredictable just two months earlier, Fabricio Alvarado Muñoz won the first round of balloting with 24.9 percent of the votes. He was, however, defeated in the second round by Carlos Alvarado Quesada, a candidate who pledged to comply with the IACtHR opinion. Following the election, the Constitutional Chamber of the Costa Rican Supreme Court ruled in late 2018 that Costa Rican laws prohibiting same-sex marriage were unconstitutional, and gave the National Assembly eighteen months to amend them.Footnote ⁷⁷ To reach its decision, the Costa Rican Court proved itself as a member of the Latin American human rights community by relying extensively on Inter-American case law on LGBTI rights. Interestingly, it explicitly considered the Inter-American advisory opinion requested by Costa Rica's government as just one of the three Inter-American decisions relevant for the case (the other two being Atala Riffo v. Chile Footnote ⁷⁸ and Duque v. Colombia Footnote ⁷⁹).Footnote ⁸⁰ By doing so, the Costa Rican decision strikes a balance between giving importance to Inter-American case law as a general basis for its decision, but stopping short of framing its decision as an act of implementing the specific Inter-American advisory opinion in question.

The existence of different interpretations of the American Convention is not an argument against the existence of a Latin American community of practice, but rather confirms it. Even those that deeply disagree with the IACtHR on certain issues (like groups of Evangelical conservative activists on LGTBI rights) are part of such a community as long as they are engaged in the common practices with the goal of transforming the reality of violence, exclusion, and weak institutions, just as, in our example, LGBTI organizations are. It is easy to exaggerate the differences between groups that heatedly debate over a particular interpretation of the Convention, and which might even consider themselves as belonging to opposing social communities. The added value of the community of practice approach is that it underscores the fact that, for all the differences in approach and interpretation, all actors in the community shared a minimal understanding, a mutual agreement, on the kind of practice they are engaging with: basically, interpreting legal text under a given judicial authority with an aim to change what they see as a deeply deficient social reality. It only takes a minimal level of common understanding to build such a community of practice, which often blossoms with heated controversy over valid interpretations of the Convention.

The community of human rights practice is therefore not necessarily unified in its support of the entire case law of the Inter-American Court. In that sense, the community is different from what Karen Alter and Laurence Helfer have called “jurist advocacy movements”—that is, groups of legal operators that advocate for a specific goal—in Alter and Helfer's study, the goal was furthering European integration.Footnote ⁸¹ In our reading, different juris advocacy movements interact in the community of practice, proposing their interpretations of the Convention. Thus, while jurist advocacy movements are important and, as Alter and Helfer suggest, they can advance legal integration, they are only part of the community of practice. The kind of access to power and expertise that successful jurist advocacy movements represent is only one of the diverse voices that compose the community of practice.

Viewed through this prism, the idea of a sharp division between domestic and international interaction, and a hierarchical, top-down approach that places the Inter-American Court at the top, is factually inaccurate. The IACtHR is at the center of a community of practice that includes both domestic and international actors: national judges, domestic civil servants, Inter-American Commissioners, clerks, litigators, and scholars.

Time, iterative interactions, and learning are crucial for this practice. It is hard to understand the community if one conceptualizes the interaction between actors as a matter of discrete encounters. Although this conception might prove correct for some domestic civil servants who face the Court once or twice in their tenure, it certainly does not hold true for national judges, national human rights institutions, or victims’ organizations—all frequent users of the Inter-American system. Iteration creates an interaction that is qualitatively different from that of discrete contact, as the constant process of interaction and learning shapes expectations of the Inter-American system. Iteration, in other words, changes not only the strategies within a game but the game itself.Footnote ⁸² Constructivist international relations have also explored this idea: while the interaction between agents develops the structure, being part of the structure impacts on the interests and strategies of the agents.Footnote ⁸³ Interaction in the community of practice establishes the terms of engagement.

The social dimension throws into relief one further feature of the Court's transformative interpretation of the Convention: the perception of many actors of the Latin American human rights community that the Court's case law allows them to better fulfill their own mandates. Both the American Convention and most national constitutions task all public authorities, not only judges, with addressing, within the scope of their powers and procedures, the challenges of violence, social exclusion, and weak institutions. For example, Article 3 of the Ecuadorian Constitution states that the state's prime duties are, among others, “planning national development, eliminating poverty, and promoting sustainable development and the equitable redistribution of resources and wealth to enable access to the good way of living,” and “guaranteeing its inhabitants the right to a culture of peace, to integral security and to live in a democratic society free of corruption.” Article 3 of the Brazilian Constitution states that the fundamental objectives of the Federative Republic of Brazil are, among others, to “guarantee national development” and “to eradicate poverty and substandard living conditions and to reduce social and regional inequalities.” Accordingly, the interaction with the Inter-American Court has become an important dimension of the mandate of national human-rights institutions in the region. It is now common for such institutions to adopt the Inter-American Court's evolutive interpretation of the Convention and to promote human rights in their respective states based on such understanding.Footnote ⁸⁴ The Court, in turn, construes expansively the powers to gather information found in Article 69(2) of its Rules.Footnote ⁸⁵ For example, it directly relies on national human rights institutions in order to cooperate in the process of state compliance with its orders (even against the wishes of the respective government) or to intervene in procedures for monitoring compliance, acting as independent participants. In so doing, it draws those institutions closer into the community of practice. Examples include Artavia Murillo v. Costa Rica, the IVF decision discussed above, in which the Costa Rican Defensoría del Pueblo intervened in the public hearing of monitoring compliance, and Velez Loor v. Panama, a case concerning an Ecuadorian migrant, tortured and mistreated in Panama, in which the Panamanian Defensoría intervened in a private hearing of compliance.Footnote ⁸⁶

To conclude, a new community of practice has created a new legal phenomenon that comprises elements of different legal orders connected by a common thrust. A wave of new constitutionalism has created domestic legal settings for a region-wide transformative constitutional project. A community of practice brought such legal standards to life by attributing a core role to the IACtHR. The resulting body of law, in turn, strengthens the broader Latin American human rights community.

B. The Epistemic Dimension

The Latin American community of human rights is a practice that generates not only norms and decisions but also ways to understand the social world. It establishes cognitive frameworks that are created and circulated for interventions in concrete conflicts and for the purpose of human rights governance.Footnote ⁸⁷ This section explores two ways in which the Inter-American system triggers epistemic practices that are crucial to understand its workings. First, the Inter-American system incites the creation of domestic expertise. Secondly, it requires information on what is happening on the ground, thereby triggering epistemic practices through which the Court constitutes the Latin American context. These techniques help set the epistemic basis for the transformation of reality through human rights law in Latin America.

First, the Inter-American system incentivizes the production of domestic knowledge—a social process that involves sharing experiences, exerting and gaining influence, and developing networks that produce specifically legal knowledge. Certain interpretations of the Inter-American human rights law, as developed by the Court, are taught, defended, and made dominant in the Latin American community of human rights practice. This process of knowledge creation and circulation not only occurs in academic fora but also represents a core activity of many actors in the community. Thus, NGOs draft reports and gather data, national human rights institutions create human rights tutorials, and governments, last but not least, publish their own reports and support the circulation of their own practices of knowledge.

Such knowledge is essential to the functioning of the community that emerges around transformative constitutionalism. Domestic judges need to learn Inter-American human rights standards and jurisprudence; universities must establish courses and research centers on those topics; and moot court competitions bring new talent to the field. Consider American University Washington College of Law's Inter-American Human Rights Moot Court Competition, established in 1995, which has trained more than three thousand students from more than three hundred universities.Footnote ⁸⁸ The contest has fostered a community of young human rights practitioners, many of whom have moved on to distinguished careers as advocates, civil servants, activists, or academics, and have thus contributed to the social construction of the international transformative constitutionalism in Latin America. All these activities help to expand the influence of the IACtHR, beyond legal obligation, or rational choice calculus.

The Inter-American system also triggers the production of other kinds of knowledge. Consider the need for quantitative data on human rights.Footnote ⁸⁹ International law requires the production of indicators, statistics, and other quantitative knowledge, along with many other governance tools. Article 19 of the San Salvador Protocol of the American Convention on Human Rights, which orders parties to report, through indicators, on advancements toward compliance with the Protocol, is exemplary of this development.Footnote ⁹⁰

Domestic knowledge also encompasses the political economy of human rights in Latin America. Development agencies from Europe and the United States play a crucial role in this context, particularly where good governance and rule-of-law initiatives are concerned. Many actors of the Latin American human rights community are attached to such international development aid missions, funded by institutions like the Ford or the Konrad-Adenauer foundations.Footnote ⁹¹ Depending on their financial capability and political priorities, some development agencies will favor the production of certain forms of knowledge that might become relevant for the Inter-American system. The transformative impact of the Inter-American Court thus demands thinking about the politics of the production of legal knowledge in Latin America and the power structures, biases, or blind spots that they might engender.

A second dimension of knowledge production relates to how “problems” are cognitively framed to allow for an answer that considers human rights. In many instances, the human rights dimension is not at all evident in the early stages of a conflict, often because the problem is simply too large or too complex to be processed as a distinctively legal dispute. To base a human rights case on social problems, the system must often intervene to reconstruct these problems in a profound way. The Court intervenes in complex domestic situations and needs to understand them, which implies cognitive framing. Transformative constitutionalism in Latin America involves a specific definition of Latin American problems in terms of human rights; any participant in the field has to develop a certain competence to “fit” her case into the Inter-American system's categories, thereby rendering the dispute, as well as its wider context, comprehensible for the Court.

A crucial legal tool in this respect is the exhaustion of local remedies, which Article 46(2) of the Convention establishes as a procedural requirement of admissibility.Footnote ⁹² This requirement has an epistemic function, since an important part of the Inter-American system's actual work of framing domestic reality often occurs at the domestic level. The Court is mostly dependent for its factfinding on the evidence included in domestic judicial processes. Despite its efforts, it cannot truly be “on the ground.” In fact, the logic of complementarity, which manifests itself in the exhaustion requirement,Footnote ⁹³ prevents it from being on the ground.

This does not diminish the cognitive role of the IACtHR. The framing of human rights violations does not remain constant across scales, but rather changes as the jurisdiction of the institution that analyzes them varies—thus, a human rights violations framed as an international problem by an international court will look very different from that very same human rights violations framed as a local problem by a local courtFootnote ⁹⁴—the same facts look different when described from the Court's international perspective. Transformative constitutionalism thus provides a deep framing of the issues, which has important consequences. Consider the groundbreaking decision of González y otras (Campo Algodonero) v. México. Footnote ⁹⁵ The case concerned three women whose processes of victimization the domestic authorities originally regarded as discrete and unrelated rather than part of a legally relevant wider trend or context.Footnote ⁹⁶ At the complainants’ behest, the Inter-American Commission and Court intervened and cast into sharp relief the social context of victimization and provided it with legal significance in terms of human rights adjudication. To do so, the complainants established a general pattern of violence in Ciudad Juárez, specifically of the killing of women (feminicide), thus turning the three deaths into part of a wider pattern that had existed since the 1990s in the city and its surrounding areas. In the process, the Court developed the categories with which it defined reality, thereby creating and mobilizing certain kinds of knowledge (such as statistical knowledge of crime against women and impunity), and deeply impacting the interpretation and application of the law.

This may initially seem to be a trivial observation: all courts define the “facts” as part of their adjudication. But the epistemic function of the Inter-American Court is anything but trivial. The whole point of the Campo Algodonero case was precisely that domestic authorities had been unable (or unwilling) to see the wider factual context of the systematic victimization of women that the Inter-American institutions identified and validated. One key transformative intervention was defining that wider factual context—a transformation that was not achieved by developing new legal standards or by offering legal interpretation or “naming and shaming” strategies, but by providing tools such as statistics, demography, and ecology. Leading to a different description of reality, these tools thus serve a basic epistemic function. The alternate description of reality has important implications for human rights adjudication and can even be seen as an act of governance. Thus, cognitive categories produced by the IACtHR find their way into domestic legal practices, influencing, for example, the way domestic reparations are conceived and implemented.Footnote ⁹⁷

Such descriptions are not neutral; they imply normative choices. Cognitive framing goes beyond the mere “translation” of domestic realities;Footnote ⁹⁸ it also helps organize actors’ interpretation of their own contexts.Footnote ⁹⁹ For example, complex domestic socioeconomic issues are read through the prism of human rights in order to become understandable for the Latin American human rights community.

The crucial concept of “victim” in the Inter-American system provides a good example. The system requires conceiving of the victim as someone who holds rights (particularly the right to participate in transitional justice proceedings) and is entitled to various forms of reparations. But the idea of victim in Inter-American law is also an epistemic category that organizes the way in which civil society gets to know its realities, and eventually itself. It offers the building blocks to describe reality—the actors, structures, and the representation of a process—the criminal process whereby the “perpetrator” creates the victim. All this influences strategy on the ground.

In Colombia, for example, the concept of victim shaped the country's institutional and regulatory machinery—a prime example being the Victims Unit at the Ministry of Interior.Footnote ¹⁰⁰ But the concept of victim framed a much broader universe of possibilities for political mobilization.Footnote ¹⁰¹ Issues such as participation in the peace process with the Revolutionary Armed Forced of Colombia (FARC, for its Spanish initials), administrative reparations, and even the question of land titling are all tied to the way in which the victim is defined and understood. For example, only those that self-identified as “victims” were allowed the directly participate in the Colombian negotiations that led to the 2016 peace deal.Footnote ¹⁰² Five delegations, with a total of sixty victims, visited Cuba and spoke directly to the negotiators. Such a direct role for victims was a key innovation in recent peace negotiations, and the very process of selecting the victims (and the controversy that surrounded it), gave high visibility to the victims’ movement.Footnote ¹⁰³ Similarly, the administrative procedure put together to provide for administrative reparations and land restitutions under the peace agreement is contingent on the self-identification as a “victim,” and registration in the “Victims Registry.”Footnote ¹⁰⁴ In the end, the concept helped many individuals who have suffered from extreme marginalization gain access to financial and political capital.Footnote ¹⁰⁵

As a cognitive category, the notion of “victim” transforms social realities. Once it is clear that the Latin American community of practice can be mobilized around this concept, actors in that community will adapt their strategies. They might even reframe their very identities. This move, in turn, greatly helps the transformative influence of the Inter-American Court, since it is credited as framing these categories that have become crucial for the activities of civil society.

Colombia again provides a good example. The Inter-American Court decided to protect a collective of over five hundred peasant farmers in the Urabá region that faced threats, stigmatization, assassinations, and massacres because its members chose to resist displacement and declare themselves neutral in the midst of the country's civil war. In 2000, the IACtHR ordered provisional protective measures for 189 individuals; following extreme violence against the community, the Court then ordered the protection of the community as a whole.Footnote ¹⁰⁶ This move created an entity, the “Peace Community of San José de Apartadó,” that defines itself as such and hence organizes, mobilizes, and strategizes on that basis.Footnote ¹⁰⁷

Of course, all these realities exist; they represent flesh-and-blood phenomena, not merely categories. The crucial point, however, is that the Inter-American concept of victim defines the way those individuals (and the Latin American human rights community) understand their predicament. The reality of being victims was coproduced by the very deployment of legal knowledge that comes with the concept of “victimhood.” This is an important aspect of the workings of transformative constitutionalism.

C. Compliance as a Transformative Practice

Skeptics of the transformative character of Inter-American adjudication often highlight a certain lack of compliance with the Court's orders, in particular if they demand deep change.Footnote ¹⁰⁸ This deficit may appear to undermine any suggestion of international transformative constitutionalism: if the Court's authority appears flimsy when applied to the case at hand, a broad transformative role seems utterly unlikely. However, focusing solely on case-specific compliance overlooks the transformative effects of the IACtHR's expansive compliance activities. Moreover, the focus on compliance conceals the wider impact of its orders and interpretations, which comes to light if we consider the Court's influence on the behavior of the Latin American community of human rights.

As an initial matter, the IACtHR understands inducing compliance as part of its core mandate, unlike the ECtHR, as Article 46 of the ECHR delegates this task to the Committee of Ministers. The IACtHR's monitoring of compliance is mostly dialogical and informational in nature: not so much concerned with enforcing certain orders but rather with creating cognitive frameworks and domestic political dynamics that will help to realize the Court's orders. Some of the relevant tools at its disposal are the Commission's country reports, informational requirements, and in loco visits,Footnote ¹⁰⁹ as well as the Court's decentralized compliance hearings.Footnote ¹¹⁰ In all these instances, both the Court and the Commission strive to create the cognitive and political frameworks that will facilitate domestic compliance pressure, which is usually exerted by domestic civil society groups.Footnote ¹¹¹ In doing so, the Inter-American system provides a space for encounters between national authorities and domestic stakeholders, and it works in tandem with civil society to impact on conditions that lead to compliance. From this perspective, compliance monitoring is part of a wider process of transformation.

This Inter-American approach differs greatly from the traditional understanding of compliance. Traditional readings view both the judicial decision and the context of implementation as static, and compliance is understood as a rather mechanical process in which “leverages” are activated to achieve the demanded behavior from the addressees. The paradigmatic form is domestic private law: compliance with a judicial decision is achieved by activating certain sociopolitical mechanisms (judicial enforcement, for instance) to “force” the addressee of the decision to do something (comply with an obligation). This view informs the dominant understanding of compliance in international legal scholarship,Footnote ¹¹² in which the key problem seems to be how to incentivize compliance when there is little political leverage to compel states to change their behavior.Footnote ¹¹³ Given the scarcity of enforcement mechanisms, compliance appears an almost discretionary choice for states, particularly in the context of human rights.Footnote ¹¹⁴

Our reading rebuts that understanding in two directions. First, it rejects the idea that a judicial decision is static in the sense of being fully crystallized or carved in stone. Indeed, orders by international courts are often vague, since their precise contours only become apparent in the process of implementation, hence in dialogue with the involved state authorities. In other words, a judicial order is just one step (though certainly an essential one) in a long process. It defines the scope and thrust of possible implementation but usually lacks the details of concrete policy to ground the decision.

Moreover, the context of implementation is rarely static. Therefore, the Inter-American Court creates a continuum between the decision and the conditions for its implementation. The political leverage that could lead to compliance are dynamic, and they can be influenced by the very decision whose implementation is sought. Thus, when the Court adopts an order, the question of compliance is not merely whether there are tools to coerce the state into compliance. For example, what kind of leverage is there to induce domestic prosecution of perpetrators? Is there an active domestic judiciary? Is there a powerful civil society? Instead, the issue is also how the very decision can be used to mobilize and even generate such tools and push a state toward compliance. How can the domestic judiciary use this decision to force compliance with it? How can civil society mobilize around this decision?

In that context, even explicit instances of resistance to Inter-American decisions are part of a wider process of influence. Consider the Fontevecchia case, in which the IACtHR ordered Argentina to render a Supreme Court decision ineffective, as it was in breach of the right of freedom of expression of two journalists who had been ordered by a domestic court to pay compensation to a former president.Footnote ¹¹⁵ The Supreme Court of Argentina, though, explicitly decided that the Inter-American decision could not be implemented. For that Court, while Inter-American decisions were “in principle” binding, they could not be complied with if the international tribunal had exceeded its powers, or if its decision contradicted “principles of Argentinean public constitutional law.”Footnote ¹¹⁶ The Supreme Court of Argentina was thus not only backtracking from a line of precedent that accepted Inter-American decisions were always binding under Argentinean law,Footnote ¹¹⁷ but also positioned itself in frank opposition to the IACtHR —in much the same way as the Costa Rican Supreme Court in the in vitro fertilization case discussed above.

The Supreme Court's defiant attitude in Fontevecchia was not the end of the story, however. The Inter-American Court continued monitoring compliance with its decision, and ultimately signaled alternative mechanisms of compliance available to Argentina. Instead of necessarily revising the domestic judicial decision, the IACtHR found that Argentina could remove the decision “from the web pages of the Supreme Court of Justice and the Judicial Information Center, or that its publication is maintained, but some type of annotation is made indicating that this sentence was declared in violation of the American Convention by the Inter-American Court.”Footnote ¹¹⁸ The Argentinean court decided to accept the IACtHR's proposal, and added the following text to the official text of its decision: “This judgment was declared incompatible with the American Convention on Human Rights by the Inter-American Court (judgment of November 21, 2011).”Footnote ¹¹⁹

To be sure, this outcome may be undesirable for some of the Argentinean court's critics, who believe that only revoking the domestic decision would have been sufficient to comply with the Inter-American Court's order. For our purposes, however, the Fontevecchia saga reveals that what at first seems to be a definitive backlash against Inter-American human rights adjudication in fact illustrates how an initial act of noncompliance may be only the starting point of a wider process. Facing a sharp rebuke from the Argentinean tribunal, the Inter-American Court adapted its position, offering different alternatives for compliance, which were then taken up by the domestic court. Neither the specific mechanism of compliance, nor the Argentinean context, were carved in stone: both the international tribunal and its domestic counterpart engaged in a process of interaction and adaptation that resulted in an outcome that was not anticipated before.

The IACtHR's compliance review process thus presents an opportunity for exercising judicial authority. It is not a political process largely outside the Court's bailiwick but rather an integral part of it; it is not analytically separate from adjudication but instead a continuation thereof. More broadly, it is part of a process that involves many stakeholders. Ultimately, compliance in a given case is not an end in itself but part of a much larger process of transformation that involves domestic pro-rights constituencies, including civil society organizations, national human rights institutions, domestic tribunals as well as actors that oppose a particular decision of the Court.

D. Transformative Constitutionalism Beyond Compliance

One should not fetishize compliance as a proxy for real-life impact. While compliance studies are of course relevant, they are only one element in a deeper understanding of the impact of Inter-American institutions on human rights protection and advancement.Footnote ¹²⁰ This is particularly true when evaluating the operation of an international human rights court that addresses structural problems.Footnote ¹²¹ Following its mandate of supporting transformative constitutionalism, the Court orders reparations that are often very difficult to fully comply with, such as prosecuting individuals who form part of powerful social groups. If the Court considered full compliance its supreme objective, it would have to renounce its mandate to aspire for deep change. Surely that does not make sense. In transformative constitutionalism, the issue of compliance becomes part of the wider concern with impact, which also accounts for the social process (and not just the result) of compliance, and for the numerous actors involved in that process.

Using “impact” as a wider analytical prism than “compliance” allows for a better understanding of the dynamics of human rights protection. Domestic civil society groups often use Inter-American decisions to promote domestic human rights agendas.Footnote ¹²² This creates “compliance partnerships” that promote collaboration between Inter-American institutions and domestic civil society groups.Footnote ¹²³ The system's decisions, moreover, lend voice and recognition to those who have been systematically ignored. Inter-American jurisprudence on reparations, for example, often orders symbolic reparations in which monuments are built to honor victims of atrocities, and not merely the plaintiffs. For example, in 19 Comerciantes, the Court ordered Colombia to “erect a monument in memory of the victims and, in a public ceremony in the presence of the next of kin of the victims, shall place a plaque with the names of the 19 tradesmen [that were killed].”Footnote ¹²⁴

In addition, the Inter-American system empowers domestic pro-human rights institutions to use Inter-American decisions in their disputes with other domestic actors. For example, in 2009, three Colombian Supreme Court justices who were investigating the links of the right-wing paramilitary with both the presidency and with Congress asked the Inter-American Commission for precautionary protection against threats that came from within the Colombian state.Footnote ¹²⁵ The measures came, so the investigations could continue. The system's orders are also useful to unblock institutional lockdowns that prevent human rights protections. Bureaucracies are path-dependent and often lack empathy with the marginalized. By jump-starting bureaucracies that may be reluctant to engage in human rights protections, domestic civil society actors or pro-rights public institutions might use orders by the Inter-American system to combat institutional inertia or bypass institutional gatekeepers.Footnote ¹²⁶

Through this strategic interaction, Inter-American institutions reach deep into the states’ legal systems.Footnote ¹²⁷ Building on the domestic constitutional provisions explored in the first section of this Article, Inter-American norms penetrate the legal reasoning in domestic courts, parliaments, and administrative agencies, thus creating a wider Inter-American legal space which is used by actors of the human rights community.Footnote ¹²⁸

Of course, there are many limits to such a practice. Courts cannot and should not provide for deep social change on their own. Transformations of that magnitude require a strong commitment from many actors throughout a society as well as great political will.Footnote ¹²⁹ At the same time, many actors of the Latin American human rights community do rely on adjudication as a strategy to transform the region, with the IACtHR being an important forum. Instead of considering them naïve, many such organizations are sophisticated and repeat players who understand the possibilities (and limits) of transformation that human rights in Latin America offer.

This constant presence of Inter-American norms, decisions, and institutions throughout the region creates a cognitive framework shared by civil society, courts, academics, and even by state institutions that are responsible for human rights violations. In this process, many important sociopolitical conflicts are reframed as distinctive human rights issues, and no longer as problems of an economic or political nature that are beyond the law. This, we propose, is the ultimate meaning of transformative constitutionalism: that apparently intractable social problems which were once understood as amenable to nothing but sheer political force or raw power, are instead also framed as legal issues and, indeed, as human rights problems that can be addressed by the legal system. Effectively expanding the frontiers of what can be framed as a human rights issue is essential to transformative constitutionalism. Arguably, the Inter-American Court's deepest impact stems from allowing for this reframing and fostering the accompanying Latin American community of practice.

A. The Generation of the Court's Transformative Mandate

One incisive critique is that the Court's transformative constitutionalism exceeds the limits of its mandate as set forth in the relevant international instruments, i.e., that it acts ultra vires. An aspect concerns the lack of textual basis for the practice. There is indeed little on this matter in the text of the American Convention on Human Rights. The drafters of the Convention could hardly have imagined the treaty as providing a basis for transformative constitutionalism. After all, most of the states that signed the American Convention had an authoritarian or military government or were democratic in name only. Moreover, the Convention emerged from the Organization of American States, in which the United States’ Cold War geopolitical interests were key.Footnote ¹³²

However, because the transformative agenda is enshrined in domestic constitutions—in particular through generous bills of rights—and the American Convention is now constitutionally embedded through the block of constitutionality, the IACtHR has received through those domestic transformations a role to complement domestic constitutional processes through evolutive interpretation. The Court has assumed that mandate not through a high-handed, power-grabbing decision, we argue, but in response to the domestic constitutions it complements.Footnote ¹³³

This is not, to be sure, the traditional juridical form of delegating authority in international institutional law.Footnote ¹³⁴ Yet it is widely recognized that the mandate of an international institution, its tasks and competences, evolve and often expand over time.Footnote ¹³⁵ The functionalist mindset of strict principal-agent accountability is insufficient to explain the generally accepted dynamic role of international institutions—especially in the area of human rights.Footnote ¹³⁶ This enables responses to changing contexts, in our case to domestic constitutional provisions that foresee, and might even demand, supportive actions from international institutions. This is the case in Latin America. The adoption of domestic constitutions with generous bills of rights, intended to transform the actual reality in the region, paired with constitutional clauses that opened domestic legal systems to international law, allow for such interpretation. Such domestic constitutional texts can be interpreted as expressing an expectation on behalf of states and domestic civil societies that the Inter-American Court could be an active ally in the domestic transformative project. As already mentioned, the countries know well how important external support is for advancing a human rights agenda domestically.Footnote ¹³⁷ Thus, the Inter-American Court plays a “constitution supplementing function”Footnote ¹³⁸ that, although originally not included in its statute, has gradually gained acceptance from a large number of domestic bodies, as evidenced for example by their following of the IACtHR's precedents.Footnote ¹³⁹

The transformative mandate thus operates at two different levels. First, it gives the Inter-American Court the powers to support domestic processes of constitutional transformation. Secondly, and no less importantly, it provides the legal framework for the community of human rights practice, which has grown to expect that the Inter-American Court supports such processes of transformation. In a region of traditionally weak national judiciaries,Footnote ¹⁴⁰ domestic courts have used Inter-American decisions to bolster their independence and to gain space to adopt controversial decisions.Footnote ¹⁴¹ The IACtHR thus contributes to solving domestic institutional blockages—that is, to triggering action where power structures, bureaucratic inertia, and path dependency stand in the way of necessary change.Footnote ¹⁴²

Another aspect of the ultra vires critique challenges the Court's general lawmaking. Thus, the five presidents deemed it relevant to “stress the importance of strict application of the sources of International Human Rights Law” and to “recall that the resolutions and judgments of the organs of the Inter-American system only have effects for the parties to the litigation.”Footnote ¹⁴³ This critique is shaky on many grounds. First, the Court's application of sources seems to be reasonably strict: as the Court itself has explained, soft law instruments are mostly used as just guidelines for interpreting conventional or consuetudinary rules.Footnote ¹⁴⁴ Second, although we share the critique that the IACtHR may have stretched its interpretation of jus cogens norms too far,Footnote ¹⁴⁵ we find that the criticism ignores the fact that the Court would engage in discriminatory practices if it followed the five presidents’ request. While there is no doubt that Inter-American judgments are legally binding only on the parties to each case, a basic standard of nondiscrimination requires that cases be decided by considering prior decisions of the same court in similar situations.Footnote ¹⁴⁶ If prior decisions exist, courts must either decide analogously or must provide strong reasons (of fact or of law) that warrant a different treatment. Not doing so would imply arbitrary discrimination against a complainant.

But the presidents’ critique also misses its mark in a wider sense. As discussed above, the new constitutions or constitutional amendments in Latin America created a specific expectation, expressed in constitutional law, that the Court would be an active ally in domestic transformative projects. This function requires much more than merely determining state responsibility for breaches of the American Convention in the case at hand; it would have been unnecessary, after all, to amend constitutions in the region and create openness clauses if that was the sole scope of the Court's mandate. Beyond establishing state responsibility for a concrete breach, the Inter-American mandate comprises the definition of standards that are applicable to the region as a whole, not only to the parties to a particular dispute. Indeed, such lawmaking is a general feature of international courts.Footnote ¹⁴⁷ It is only by means of those general standards that the IACtHR can truly accompany domestic constitutional transformations. Indeed, many domestic courts are using these standards precisely in this way.Footnote ¹⁴⁸

B. Democracy in the Latin American Human Rights Community

A second major objection to the Inter-American Court's transformative practice claims that it disrespects democracy.Footnote ¹⁴⁹ Often, this critique is accompanied by the request that the Court concede democratic states a margin of appreciation.Footnote ¹⁵⁰ Here, we do not consider the general issue but focus instead on the seminal Gelman case. Macarena Gelman's Argentinean parents were captured, tortured, and killed by the Uruguayan military in 1976, in a joint Argentina-Uruguay action under “Operación Cóndor.” Gelman's mother was seven months pregnant when she was captured, and she gave birth in captivity. After the mother's forced disappearance, the infant was raised by a Uruguayan policeman and his wife, who were unaware of her real identity until a paternal grandparent managed to track her down in 2000.

These facts are mostly undisputed and are confirmed by an official “Peace Commission” report of 2003.Footnote ¹⁵¹ However, a 1986 Uruguayan Law, which granted amnesty to members and agents of the dictatorship (the “Expiry Law”), prevented prosecuting the perpetrators. The Expiry Law was adopted by a democratically elected Congress and, in three decades, was reviewed three times for constitutionality by a relatively independent domestic Supreme Court. Moreover, it was subject to a free national referendum not once but twice. At a purely procedural level, it is hard to think of a domestic decision with a better formal democratic pedigree. However, the Law openly collided with a consistent theme in Inter-American jurisprudence, which emphasizes states’ obligation to ensure victims’ right to the truth,Footnote ¹⁵² a criminal process against the perpetrators of human rights abuses, and full reparation for wrongdoing.Footnote ¹⁵³ By the time of the Gelman case, the IACtHR had already rejected blanket amnesties in transitional justice processes in Peru. Specifically, the roadblock for the Uruguayan Expiry Law was the 2001 decision in Barrios Altos Footnote ¹⁵⁴ and the 2006 decision in La Cantuta, Footnote ¹⁵⁵ according to which amnesties constituted a violation of the American Convention; the Court even ruled that such amnesties “lacked legal effects.”Footnote ¹⁵⁶

The Uruguayan situation was quite different, as the Peruvian amnesties had little democratic legitimacy.Footnote ¹⁵⁷ Nevertheless, the Inter-American system stood by its categorical statements from Barrios Altos and La Cantuta. It maintained its strict no-deference standard of review and claimed that the Uruguayan Expiry Law, despite its democratic pedigree, violated the Inter-American Convention. The Court held that, just like the Peruvian amnesties, the Uruguayan law “lacked legal effects”Footnote ¹⁵⁸ and could not remain an obstacle to further prosecutions.Footnote ¹⁵⁹ To reach that conclusion, the Court stressed that democratic support for a measure does not imply its legality under human rights law. In its words:

This stance has been subject to criticism, which maintains that the Court does not adequately consider domestic democratic processes. In its starkest form, this critique seeks to regain a far greater autonomy for democratic states vis-à-vis the Inter-American system: a general margin of appreciation. Such is the tone of the five presidents’ letter, which argues that “the principle of subsidiarity, which underpins the legal presuppositions of admissibility of a petition, . . . implies that . . . the State has the right to have its own judicial system resolve the situation before being submitted to an international instance.” More generally, the letter stresses, “the legitimate space of autonomy available to States should be respected in order to ensure to all people subject to their jurisdiction, through their own democratic processes, the rights and guarantees enshrined in the Convention in accordance with their constitutional systems.”Footnote ¹⁶¹

In a similar vein (but with differing political allegiances), scholarly criticism targets the Court for not respecting the specific domestic democratic pedigree of the policies it reviews.Footnote ¹⁶² The most elaborate version of this criticism suggests a sliding scale: the stronger the democratic pedigree of the measure, the more deferential the Inter-American Court should be, and vice versa.Footnote ¹⁶³

As a matter of principle, this latter view does not necessarily conflict with the Gelman approach. There is little evidence that the Inter-American Court generally rejects a malleable standard of review, with democratic pedigree as the independent variable. The difference lies in the question to what extent a democratic majority may claim the right to a final, nonreviewable decision. Specifically, the dispute concerns what makes up the essence, the core, of the Latin American community of human rights: its fundamental experiences of injustice, and the impact of such experiences in the definition of what the human rights community can consider democratic. In a way, the conflict ultimately concerns the legacy of the ¡Nunca Más! in Latin America.

For the Inter-American Court, any domestic decision that contradicts this basic principle will violate the Convention, therefore, even if it is taken through a fully democratic domestic process. By contrast, critics argue that the Court should apply the sliding scale even on these core issues: hence, Gelman should be subject to a low standard of review, such as arbitrariness or unreasonableness, given its high domestic democratic pedigree.Footnote ¹⁶⁴

Looking at the issue through the prism of the Latin American community of human rights helps disentangle this knotty problem. For the Court, there is a clear line dividing human rights adjudication from the democratic public, and hence from majoritarian decisionmaking. However, understanding the Court as part of the Latin American community of human rights practice shows that this dividing line is porous. Because the Court contributes to the Latin American community of human rights, its adjudication is connected with a public fostered by that community. Indeed, this linkage is crucially important: decisions such as Gelman do not exist because they are “correct” in terms of legal reasoning but because the relevant community of practice accepts and supports them as legally plausible, substantially convincing, and practically useful. This social legitimacy is fundamental to human rights adjudication. A decision that is rejected by the community of practice as legally implausible will not be socially legitimate. The most important reason why the Court's position on what is “nondecidable” stands and exerts influence is because a public, the relevant community of practice, accepts and supports it.

It is crucial to see that this community, this public, is transnational, and is the deep structure of the IACtHR's operation. The Court's mandate is Inter-American—meaning that the Court is called to consider not only the national publics and the individual national democratic processes but also the Latin American regional public, the regional social process, as understood and carried out by the Latin American community of practice.

Critiques that focus on national publics and political processes fail to take into account the regional social process of the Latin American community of practice. Yet this process is legitimately the dominant reference for the Inter-American Court's interpretations. The IACtHR acts as a transnational court when engaging in evolutive interpretation for an evolving transnational context. Even though the Uruguayan Expiry Law in Gelman has a sterling national democratic pedigree, the Court still has to ponder what its possible acceptance of that Expiry Law would mean for that regional community in general, and for the processes of democratization in other countries in particular. Given the centrality that ¡Nunca Más!, with its quest for justice, has for that community, it seems perfectly reasonable for the Court to apply a strict standard of review.

Accordingly, the Court's decision appears far more legitimate if one understands that the Latin American community of human rights has created a Latin American public. Of course, a public in the sense of an electorate only exists at a national level in Latin America. This focus, however, fails to account for all relevant publics. If one is amenable to the idea of a community of practice beyond the state, then the appropriate standard of review should consider that wider scope and include the social practices and the regional publics that come with it.

We acknowledge that such thinking will meet with skepticism.Footnote ¹⁶⁵ But the Latin American community of human rights is an observable social fact that is hard to deny—as is the public it entails. Again, the public that comes with the Latin American community of human rights practice is not a replication of national democracies—it is different in character, institutions, and depth. Regional social practices build on domestic social processes but remain distinct from them. Such regional practices do not replace or reproduce domestic democratic practices; they complement them.

Many challenges are regional and need to be tackled at that level with its transnational public. Circumscribing social practices relevant to the legitimacy of human rights adjudication exclusively to domestic constituencies fails to understand the regional dimension of the Latin American society. How to think about accountability in elections to Inter-American institutions,Footnote ¹⁶⁶ for example, if not by building on the social expectations of a region-wide community of practice? How to tackle challenges such as migration,Footnote ¹⁶⁷ protection of the Amazon,Footnote ¹⁶⁸ or the regional corrupt practices of Odebrecht,Footnote ¹⁶⁹ without this further regional layer of social interaction and its transnational public that strives to advance a transnational common interest? We need not posit a formal regional democratic process in order to see how a regional community of human rights practice can legitimate transnational decisions that confront these regional challenges. Critics tend to ignore this wider regional practice and public and focus solely on the national. However, by doing so, they risk overlooking a crucial dimension of Latin American politics, as the forceful reactions to the five presidents’ communication clearly show.

C. Dealing with Legal Vagueness

A third line of criticism relates to how the Inter-American Court deals with the vagueness of human rights. It builds on the insight that legal texts in general, and human rights texts in particular, cannot in and of themselves determine the outcome of a case.Footnote ¹⁷⁰ According to this critique, such vagueness implies, in the Inter-American context, that “we disagree over what (human) rights should be, and what their content and contours are,” which is why “we should not simply treat the idea of rights as isolated from or lacking any contact whatsoever with the notion of majority rule.”Footnote ¹⁷¹

Of course, human rights texts cannot define the outcome of a given conflict. They gain precision only in a law-generating process of interpretation and application. The IACtHR plays down this indeterminacy of human rights. For example, in Gelman it failed to recognize that relying on its amnesty jurisprudence as developed for Peru was not the only possible path. Such is the thrust of Gargarella's “disagreement” critique, and he is right in pointing it out. But then again, downplaying vagueness is what most courts usually do. Footnote ¹⁷² The mere fact that the Inter-American Court fails to draw attention to the contingency of its argumentative choices (and, hence, to its deep link to wider social practices) does not make Gelman a badly decided case, but rather a squarely traditional human rights decision.

If there is contingency, that does not mean that the judges can just order whatever they think best. The mandate to advance transformative constitutionalism in Latin America is guided, framed, and constrained by numerous legal and contextual safeguards: the factual setting of the cases, legal methods, the selection of judges, collegiality and procedures, precedents, and the need to build and protect the Court's authority.

The mandate finds its external limits in the challenges that arise from social reality. In Latin America, interpreting the Convention in light of such a reality mainly entails addressing the weakness of institutions, social exclusion, and violence.Footnote ¹⁷³ There is broad agreement in the region that these are core challenges which must be confronted. It is also clear that such a transformative constitutionalism needs to be advanced by employing structural measures and addressing structural deficiencies.Footnote ¹⁷⁴ The mandate of the Court, therefore, reaches far beyond the decision on whether a breach of the Convention has occurred in the case at hand.Footnote ¹⁷⁵ This justifies the Court's creative and far-reaching orders on reparations, which have grown to be a key component of transformative constitutionalism.Footnote ¹⁷⁶

If this is a broad field in which the Court still has great discretion, there are many standards and safeguards against “judicial activism run wild” that support the claim of legality and legitimacy of the outcomes.Footnote ¹⁷⁷ There are the protocols of legal reasoning, for instance, part of which are the methods of legal interpretation. Any judicial decision must be linked lege artis to the basic source of a court's authority, in our case the American Convention on Human Rights. Of course, our own previous discussion shows that one should not overestimate these protocols: they hardly ever determine the outcome of a decision, in particular decisions of supreme, constitutional or international courts. But these protocols do frame the decision and, no less importantly, provide standards for critique of the Court's decisions. The principle of collegiality, similarly, provides a further safeguard. Any decision rests on the judgment of several judges. Dworkin's Hercules provides a wrong idea of what happens in San José. Disputes among the judges, it bears noting, are built into the system.

Further guidance and constraints result from the process that develops the case, the actors and their submissions, the specific context and path of the case, and the likely implications of different possible decisions. Then there is the process of selecting Inter-American judges. Each new judge comes with an idea of what the Convention's mandate is and should be. All new judges, and all actors of the community, know how important an election to the Court is for the field's evolution, particularly considering that there are only seven judges (and seven members of the Commission), who are elected for a period of six (four) years, respectively, and may only serve two terms. As a result, the Inter-American Court could radically change its perspective with only four appointments. It seems likely that the five presidents are pondering this option in order to push the Court closer to their political agenda; for the same reason, civil society groups decide to invest part of their scarce resources into making the Latin American public heard in the election processes.Footnote ¹⁷⁸

Not least, this prospect encourages us to look for further safeguards. Vagueness does not imply that all outcomes are equally acceptable, or that “law is politics” once and for all. The identity of the system is a further constraining factor—an identity created by the path travelled so far by the Court and laid down in its case law, as well as in the legacy of the struggles that produced it. This is again a point where the social dimension of the Inter-American mandate becomes pivotal. Thinking in terms of social practice allows us to appreciate the relevance of the Latin American human rights community as a constraint on Inter-American judges. Decisions such as Barrios Altos and Cantuta are more than statements of international legal obligations; they also express deeply shared convictions in the community of practice, convictions around which that same community interacts. Gelman was a reiteration of the acquis of the Latin American community of practice, crystallized by a legal utterance of the Inter-American Court, which establishes a nondeferential standard of review when dealing with amnesties for gross violations of human rights. Indeed, there are few convictions as clearly crystallized in that community as the nondeferential standard of Barrios Altos, Cantuta, and now Gelman. It is hard to imagine that the five presidents can staff the Inter-American Court with judges who can break with that Latin American community as easily as that. In fact, in a recent decision monitoring compliance with Barrios Altos and La Cantuta, the Inter-American Court held that the standard restricting amnesties for grave human rights violations are part of the acquis of international human rights law and of international criminal law. Footnote ¹⁷⁹

Indeed, the anticipation of the reception that any decision is likely to receive—from domestic courts, political actors, public opinion, civil society, and academia, and particularly from those actors who form the Latin American community of human rights practice—furnishes another constraining element. Courts’ authority, their most important asset, is never settled but rests instead on a continuous interaction with a wide range of stakeholders, thereby emphasizing the pertinent community of practice.Footnote ¹⁸⁰