Neither Hypocrisy nor Submission: Democratic Politics and International Human Rights Law in the Gelman Decision of the Inter-American Court of Human Rights.

Abstract

The article engages in the current scholarly and political discussion concerning the democratic legitimacy of human rights bodies. Instead of assuming a radical division between democratic national politics and antidemocratic international law, it aims to show that state compliance with international norms develops through an ever-new democratic embodiment of abstract values. The article argues that usual approaches to the international/municipal law do not reflect the complexity of the implementation of international norms in national polities, and introduces the relationship between law and politics as a key variable to assess the consequences of international tribunals’ rulings to national sovereignty and democratic self-government. For this, it draws on Robert Post’s and Reva Siegel’s concept of “democratic constitutionalism”, and on Seyla Benhabib’s “democratic iterations”. As a case-study, the article examines in length the Inter-American Court of Human Rights’ decision in Gelman v. Uruguay (2011) and its subsequent implementation. In Gelman, the Court decided that the amnesty passed in 1986 by the Uruguayan Congress concerning the crimes against humanity committed during the dictatorship was invalid, even though it had survived two national plebiscites (1989 and 2009). Later that year, Uruguayan Congress nullified the amnesty and trials were reopened. Both supporters and opponents of the nullification interpreted this as an impairment to sovereignty, although evaluating it differently. The article surveys the Court’s and the Uruguayan political actors’ positions, and asks what they entail for the democratic legitimacy of international rulings. Drawing on them, the article tries to demonstrate that Gelman was not an anti-democratic imposition, but rather a critical input in the usual national political dynamics that changed the way in which Uruguayans defined their fundamental commitments.