Interação dinâmica entre cortes na América Latina: a disputa por autoridade e legitimidade

Abstract

This thesis analyzes the interaction of the high domestic courts of Latin America and the Inter- American Court of Human Rights (ICtHR) in the Monitoring compliance with judgments (MCJ). Thus, the problem question to be answered is: How do interactions with domestic courts cause changes in the stage of compliance monitoring and in the ICtHR? To develop explanations about this, the thesis aims to analyze the Inter-American Human Rights System (IHRS), more specifically, the performance of the ICtHR in the MCJ, based on a comparative study of five countries and their domestic courts, in the following cases: Radilla Pacheco vs. Mexico (2009); Gomes Lund et al. Brazil (2010); Gelman vs. Uruguay (2011); Fontevecchia and D'Amico vs. Argentina (2011) and Dominican and Haitian People Expelled from the Dominican Republic v. Dominican Republic (2014). As specific objectives, the thesis intends to identify possible behavior patterns that domestic courts and the ICtHR assume in this context; assess the consequences of these judicial interactions in MCJ, and discuss the application of compliance theories and judicial dialogue at this stage. In its methodological path, the thesis uses empirical research in social sciences to map the different reactions of the domestic courts and the ICtHR as well as the method of discourse analysis. The methodological resources used were documental and bibliographic research. By carrying out a diagnosis based on the literature review on compliance, control of conventionality and judicial dialogue, and finding limits to the explanation of this phenomenon, the thesis proposes the dynamic interaction between courts as a proposal for theorization of interactions between courts in the dispute for authority and legitimacy in the MCJ, suggests typologies that explain the reactions of the domestic courts (engagement, contestation, pushback and backlash) and the ICtHR (dealer, tolerant and enforcer), in addition to identifying the resilience practices of the ICtHR as responses to reactions from the high domestic courts. Therefore, the thesis is divided into four chapters, in the first, the MCJ and the literature review on compliance are presented, highlighting its limits. The second chapter presents the state of the art on conventionality control and the framework of theories of judicial dialogue. The third chapter introduces the approach of dynamic interaction between courts and focuses on the first part of the interactions from domestic courts. The fourth chapter emphasizes the reactions from the ICtHR and its varied ways of supervising compliance in order to develop the second part of the approach of dynamic interaction between courts. The findings allow us to conclude that the courts have agency capacity and that the MCJ is an arena of dispute over who has the last word, where the courts try to reaffirm their authority and legitimacy before the national and international scene, and the compliance with the sentence being a result secondary of this dispute; and suggests that if the ICtHR wants to improve its performance, it needs to observe the domestic courts’ reactions take at this stage.