Constructing a regional human rights legal order: The Inter-American Court, national courts, and judicial dialogue, 1988–2014

Abstract

Abstract Why do courts rely on specific bodies of jurisprudence to justify decisions? We analyze judicial dialogue in the Inter-American System, where the Inter-American Court of Human Rights (IACtHR) has defined its mission as the construction of a regional legal order. This order needs courts at all levels to engage with each other. Original databases of citations by the IACtHR to the judgments of national courts, and in the opposite direction, allow us to establish whether such practices are emerging. Furthermore, the article asks why the IACtHR cites some courts but not others, and to what end. Statistical models reveal that the IACtHR is more likely to cite case law from countries that exhibit characteristics that are more conducive to the creation of a regional human rights legal order, and jurisprudence from countries with which it has had more extensive experience and interaction. Qualitative content analysis suggests that the IACtHR uses citations as a source of persuasive authority, but also to showcase domestic acceptance of its doctrines and decisions. This leads us to characterize citations as an effort to educate courts in the use of Inter-American jurisprudence and thus foster greater integration. At the national level, we find considerable temporal/cross-country variation in openness to the dialogue. We rely on original quantitative indicators and case studies to show this is as a function of the IACtHR’s growing visibility and networking efforts, as well as country-level changes in legal cultures and judicial personnel that push courts away from formalism.