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The Consensus Method of
Interpretation by the InterAmerican Court of Human Rights
Lucas Lixinski*

This article examines treaty interpretation based on consensus, or the idea that legal
or political practice that is not directly related to a treaty can be used in interpreting
it, or at least in granting more discretion to States Parties. The practice of the InterAmerican Court of Human Rights, contrasted with the well-settled practice of the
European Court of Human Rights, reveals that consensus interpretation plays an
important role in entrenching the legitimacy of international human rights courts.
The Inter-American Court’s practice seems to rely on consensus when it supports a
progressive, teleological interpretation of human rights. The article argues that this
selective engagement eliminates the legitimacy-building possibilities of the consensus
method of interpretation, but that the Inter-American Court, in seeking legitimacy not
from States Parties, but other stakeholders, does not seem particularly concerned with
legitimacy costs (even if it probably should).

*

Senior Lecturer, Faculty of Law, UNSW Australia. PhD in International
Law, European University Institute. I am very thankful to Vassilis
Tzevelekos for the invitation to write this piece, and to the feedback of
colleagues at UNSW Law Staff Seminar series for their input. All errors
remain my own.

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Lixinski, The Consensus Method of Interpretation by the IACtHR

I.

Introduction

II.

Consensus via International Law

III.

Consensus via Comparative Law

IV.

Consensus via Domestic Politics

V.

Consensus and Legitimacy

VI.

Conclusion

I.

I

Introduction

nternational human rights tribunals, in interpreting the treaties that
delegate competence to them in cases brought by individuals, often
resort to a number of tools. These tools are frequently described in the
Vienna Convention on the Law of Treaties1 [“Vienna Convention”]. Most
notably among these is interpretation based on the object and purpose of
the human rights treaty. But teleological interpretation of the text using
intrinsic tools does not always yield the answers the human rights body
needs, particularly in new areas of social activity. In these situations,
human rights bodies, particularly the European Court of Human Rights
(“ECtHR”), have referred to “consensus” as a method of interpretation.
Consensus interpretation mediates tensions between different types
of interpretation, even if it has fallen under the shadows of the margin of
appreciation attributed to States.2 There are five key categories of consensus
interpretation in the ECtHR jurisprudence: (1) consensus among States
Parties of the Council of Europe; (2) international consensus identified
by international treaties; (3) internal consensus within a State; (4) expert
consensus; and (5) consensus among ECtHR judges.3 Tyrer v United
Kingdom4 is the case that started the use of consensus as a means for

1.
2.
3.
4.

23 May 1969, 1155 UNTS 331 art 18 (entered into force 27 January
1980) [Vienna Convention].
Kanstantsin Dzehtsiarou, “European Consensus: a way of reasoning”
(2009) University College Dublin Law, Working Paper No 11/2009.
Ibid.
(1978), ECHR (Ser A) 24, 2 EHRR 1.

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evolutive interpretation.5 In this case, corporal punishment of a minor
was seen as no longer acceptable by the majority of States Parties to the
European Convention for the Protection of Human Rights and Fundamental
Freedoms6 (“ECHR”). This triggered an evolution of the standard for
Article 3 of the ECHR on cruel and degrading punishment.
The idea of regional consensus as a treaty interpretation tool has been
explored in the European context as a means to articulate the ECtHR’s
balancing of subsidiarity and the expansionist tendencies of interpreting
an ever-evolving instrument.7 But the evolutive interpretation of the
ECHR through consensus is one that almost seeks States Parties’ “preapproval” of the standard, before the ECtHR intervenes. The role of
European consensus, as far as the ECtHR is concerned, also seems to
be the maintenance of a certain degree of unity in the region, as well
as finding common denominators in domestic human rights practice.
In doing so, consensus interpretation enhances the legitimacy of the
ECtHR.8
The functions of consensus interpretation are: (1) to enhance the
legitimacy of a regional human rights court; (2) to persuade States
Parties of said legitimacy, and make judgment thereby more acceptable;
(3) to avoid arbitrary decision-making; (4) to determine the scope of
subsidiarity; and (5) to help the court in dealing with new matters of
interpretation of the treaty, or otherwise controversial or important
5.

6.
7.

8.

Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the
European Court of Human Rights (Cambridge: Cambridge University
Press, 2015) at 139 [Dzehtsiarou, European Consensus].
4 November 1950, 213 UNTS 221 (entered into force 3 September
1953).
See Dzehtsiarou, European Consensus, supra note 5 (“European consensus
operates on the edge of the margin of appreciation and evolutive
interpretation; both of these are necessary to maintain the stability of the
Strasbourg system, with the former preventing the ECtHR from going
too far in developing human rights standards and the latter ensuring that
the ECHR does not turn into a meaningless instrument preserving views
from 60 years ago when the Convention was drafted, signed and ratified
by the original Contracting Parties” at 129).
Ibid at 1.

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issues.9
Dzehtsiarou, in his monograph treatment of the topic, suggested
that “European consensus should remain within European borders”,
and it may not be suitable for transplantation to other regional human
rights contexts.10 This piece takes on this challenge, and examines the
idea of regional consensus in the Inter-American Court of Human Rights
(“IACtHR”). The Americas would seem like an ideal context for the use
of consensus, since the majority of countries subject to the IACtHR’s
jurisdiction share a linguistic and legal tradition, in contrast to the
wider diversity found in Europe. This may even suggest that the use of
consensus would be a given in the IACtHR’s practice, and the search for
it is almost a moot exercise, at least from an epistemological perspective.11
In spite of regional similarities, though, there is relatively sparse
practice by the Inter-American Court in dealing with consensus methods
of interpretation. More often than not, the IACtHR uses consensus as
only one tool in its arsenal, relying on other methods of interpretation in
the same case. This mixed record can be at least partly explained by the
IACtHR being progressive in other, sometimes more, legitimacy-costing
ways. In fact, it seems that the IACtHR cherry picks interpretation
methods that serve an aspiration to foster the protection of human rights,
which coincides with the expansion of the IACtHR’s mandate. I argue
that the IACtHR should take consensus interpretation more seriously as
an interpretive tool in its case law, at least inasmuch as implementation
of this method would require it being more deferential to states and
subsidiarity as an initial step of its reasoning process. This choice is likely
to translate into deeper entrenchment of the American Convention on
Human Rights “Pact of San Jose, Costa Rica”12 (“ACHR”).
What follows discusses the uses of consensus interpretation methods
by the IACtHR according to the different types of consensus, using
Dzehtsiarou’s three first categories, outlined above (consensus using
international law; consensus using comparative law, and; consensus
9.
10.
11.
12.

Ibid at 184.
Ibid at 128.
I am thankful to Rosalind Dixon for this insight.
22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978).

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using domestic politics), as these are the categories the IACtHR has
engaged with the most. Underlying this discussion is the question of
the connection between consensus interpretation and legitimacy of the
IACtHR. Throughout these sections, the doctrinal schema developed
with respect to the ECtHR will serve to frame the discussion, which will
then highlight the specific experience of the IACtHR.

II.

Consensus via International Law

The use of international law as a means to build consensus is perhaps
the most common way in which the IACtHR engages with this method.
This is related to the notion, discussed below, that the IACtHR seems to
seek consensus from yardsticks external to the States Parties to the ACHR
that have accepted its jurisdiction. Before getting to that, though, it is
important to say a few words about the IACtHR’s general approach to
treaty interpretation.
A significant feature in the IACtHR’s approach to treaty
interpretation is the evolutionary interpretation of treaties, but packaged
in way that promotes the object and purpose of the ACHR, rather
than changes in society. The IACtHR has frequently asserted that the
American Convention and other instruments should be given a pro homine
interpretation, that is, that they should be interpreted in the way that
is most protective of human rights. This declared “bias” of the Court
is another means of advancing interpretation in accordance with the
purpose of the treaty; by choosing the pro homine way, the IACtHR
dismisses the interpretation of its instrument according to the ordinary
meaning of its words (the primary rule of interpretation) or any other
traditional canons of interpretation, instead directly serving the teleology
of the instrument.13 This approach seems to be somewhat at odds with
13.

Ricardo Canese v Paraguay (2004), Inter-Am Ct HR (Ser C) No 111, at
para 181; Herrera-Ulloa v Costa Rica (2004), Inter-Am Ct HR (Ser C) No
107, at para 184; Baena-Ricardo et al v Panama (2001), Inter-Am Ct HR
(Ser C) No 72. For a broader discussion of treaty interpretation by the
IACtHR, see Lucas Lixinski, “Treaty Interpretation by the Inter-American
Court of Human Rights: Expansionism at the Service of the Unity of
International Law” (2010) 21 European Journal of International Law 585.

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the ECtHR’s approach.14 While the ECtHR’s approach to evolutionary
interpretation aims at updating the instrument, the IACtHR’s approach
makes it so that there is an incidental effect of a much more fundamental
and declared bias. It is thus less conducive to finding consensus as a
baseline, or even to addressing consensus among Member States. It puts
the IACtHR in a position largely out of sync with Member States, which
seems to reflect other postures, discussed below.
The IACtHR also engages with the need to interpret the ACHR in
light of changing circumstances. In Mapiripán Massacre v Columbia,15
when analyzing the issue of attribution to the State of responsibility
for human rights violations perpetrated by non-State actors, the Court
stepped away from general rules of international law. By doing so, the
Court affirmed the independence of human rights from the general
international legal system, based precisely on the special character of
human rights obligations due to the purposes of human rights treaties
and obligations.16 The IACtHR then affirmed that human rights treaties
must be interpreted in accordance with current circumstances, as opposed
to an understanding based on an “original meaning”. In saying that, the
IACtHR used not only Article 29 of the ACHR (which is specifically
on interpretation rules), but also the rules of the Vienna Convention.17
Further, in an Advisory Opinion, the IACtHR also reinforced the point
that human rights considerations permeate other areas of international
law. That is, when human rights interests are concerned, legal obligations
should be interpreted in a dynamic manner so as to cover new situations

14.

15.
16.
17.

Mark Toufayan, “Human Rights Treaty Interpretation: A Postmodern
Account of Its Claim to “Speciality”” (2005) NYU Center for Human
Rights and Global Justice Working Paper No 210 (arguing that there
is no preferred method of interpretation in the European System). In
a contrary sense, see Theodor Meron, “International Law in the Age of
Human Rights: General Course on Public International Law” (2003) 301
Collected Courses of the Hague Academy of International Law 9 at 19293.
(2005), Inter-Am Ct HR (Ser C) No 134.
Ibid at paras 104-108.
Ibid at para 106.

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on the basis of pre-existing rights.18 Therefore, in trying to articulate
connections to broader areas of international law, the IACtHR will use
the ACHR as a means to inject adaptability to changing circumstances
into the law external to the Inter-American System. However, it seems
more reluctant to invoke changing circumstances with respect to the
ACHR itself, instead focusing on the pro homine method.
Consensus is often based on reliance on other international treaties.19
This reliance helps clarify the scope of the treaty the human rights court
is in charge of overseeing, and it also helps signal towards regional public
opinion with respect to an issue. It is used by the IACtHR often in
isolation, but increasingly also in conjunction with the domestic law
of States Parties. For instance, in Kawas-Fernández v Honduras,20 the
IACtHR used a combination of non-Inter-American treaties, domestic
law of States Parties, and even an Inter-American treaty to establish
competence over environmental matters.21
The IACtHR often uses other treaties and what it calls the “corpus
juris of international human rights law”.22 Those are in addition to the
Inter-American treaties beyond the ACHR that give specific competence
to the IACtHR for its application.23 But, as I have discussed elsewhere,24
the IACtHR tends to use only treaties to which the State in question is a
party, aligning with the requirements of the Vienna Convention, Article
31.3.c.
The IACtHR has systematically invoked treaties outside of the InterAmerican System as a means to expand its jurisdiction, using Article 29
of the ACHR as a catapult for expanding its mandate. There is some
variation in the ways in which this will happen. In more politically
18.

19.
20.
21.
22.
23.
24.

Antônio Augusto Cançado Trindade, “International Law for Humankind:
Towards a New Jus Gentium (II)” (2005) 317 Collected Courses of the
Hague Academy of International Law 9 at 62.
Dzehtsiarou, European Consensus, supra note 5 at 46-47.
(2009), Inter-Am Ct HR (Ser C) No 196.
Ibid at para 148.
Jo M Pasqualucci, The Practice and Procedure of the Inter-American Court of
Human Rights, 2d (Cambridge: Cambridge University Press, 2013) at 13.
Ibid at 122-25.
Lixinski, supra note 13.

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delicate contexts such as economic, social and cultural rights, and
indigenous rights, municipal law (or internalized international treaties)
seems to play a larger role in interpreting the ACHR. In other areas, such
as international humanitarian law, the Court has more easily referred
to other international treaties as interpretive aids. However, it has also
shown some reluctance in invoking international criminal law, using
it only as part of the “factual matrix” of the case, rather than directly
affecting the interpretation of provisions of the ACHR.25
The case of Yean and Bosico Children v Dominican Republic26 (“Yean
and Bosico”), involving the denial of nationality to two women of Haitian
descent born in the Dominican Republic, is particularly relevant to
thinking about the boundaries of this use of external treaties. In it, the
court considered the status of a treaty to which the Dominican Republic
was not a party and whether it could influence the judgment.27
In Yean and Bosico, the IACtHR engaged with a treaty which the
State had signed, but not ratified. The treaty in question is the Convention
on the Reduction of Statelessness,28 which was signed by the Dominican
Republic on December 5, 1961 and had been in force since December
13, 1975.29 The treaty had by then only been ratified by 26 States,
certainly not a particularly representative share of the international
community sufficient to prove a consensus. Nevertheless, and without
mentioning the principle of good faith with respect to treaties that have
not entered into force for a State,30 the IACtHR added the treaty to the
list of norms that needed to be contextually considered in deciding the
scope of obligations under the ACHR. In a Separate Opinion in that case,
Judge Cançado Trindade went even further: he examined the Convention
on the Reduction of Statelessness, alongside the Convention Relating to the

25.
26.
27.
28.
29.
30.

Ibid.
(2005), Inter-Am Ct HR (Ser C) No 130 [Yean and Bosico].
Ibid at 143.
30 August 1961, 989 UNTS 175 (entered into force 13 December 1975).
Yean and Bosico, supra note 26 at 143.
Vienna Convention, supra note 1, art 18.

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Status of Stateless Persons,31 and the European Convention on Nationality,32
to make a claim for a general principle of international law to prevent
statelessness.33
In engaging in this type of consensus, though, there is a chance
that the status of the consensus-building tools may get blurred. It is
one thing to use international treaties to which the State in question
is a party, a long-recognized method of interpretation contained in the
Vienna Convention.34 But to use international treaties to which the State
is not a party, or other sources, to make an argument for the existence
of applicable general principles of international law, as Judge Cançado
Trindade did in Yean and Bosico, is a different type of effort. It requires
the human rights court to find validity in a norm, the existence of which
still needs to be proven, and then apply it to the State Party. Sometimes
this application can be done by merging custom and consensus: that is,
by claiming there is a regional consensus, one can claim there is in fact a
norm of (regional) customary international law that applies to the parties.
Consensus can thus become a custom-making tool as well.35
Even if consensus interpretation is in many ways analogous to
regional customary international law, the ECtHR does not treat
consensus interpretation as custom. Instead the ECTHR simply treats it
as as practice under the treaty,36 which is also a recognized means of treaty
31.
32.
33.
34.

35.

36.

28 September 1954, 360 UNTS 117 (entered into force 6 June 1960).
6 November 1997, Eur TS 166 (entered into force 1 March 2000).
See Yean and Bosico, supra note 26 at paras 8-9 for the separate opinion of
Judge AA Cançado Trindade.
Vienna Convention, supra note 1, art 31(3)(c). For a discussion on the
application of this provision by the ECtHR, see Vassilis Tzevelekos, “The
Use of Article 31(3)(c) of the VCLT in the Case-law of the ECtHR:
an Effective Anti-Fragmentation Tool or a Selective Loophole for the
Reinforcement of the Teleology of Human Rights? Between Evolution
and Systemic Integration” (2010) 31 Michigan Journal of International
Law 621.
Vassilis Tzevelekos & Kanstantsin Dzehtsiarou, “International Custom
Making and the ECtHR’s European Consensus Method of Interpretation”
(2016) 16 European Yearbook of Human Rights 313 at 343 [Tzevelekos
& Dzehtsiarou].
Ibid at 316.

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interpretation under the Vienna Convention.37 Even if consensus could be
used as a means to identify regional custom, it is deployed by the ECtHR
for a different purpose. But admittedly, from an international legal
perspective, the analogy between custom and consensus interpretation
helps lend some legitimacy to consensus interpretation more broadly by
making the method more familiar.38
The IACtHR could use consensus to identify regional custom in the
Americas, but it has refrained from doing so thus far. Identifying regional
custom would require making a claim for regionalism and specialization
in the field of human rights protection that the IACtHR has not often
done itself, rather opting to selectively rely on ECtHR case law (as well as
the findings of UN Treaty Bodies) to develop their own jurisprudence. It
would seem that relying on regional custom could in theory enhance the
legitimacy of the Inter-American system, at least inasmuch as it would
clearly ground the IACtHR in the Americas. It would certainly come
a long way in addressing concerns, expressed by States like Venezuela,
about the IACtHR allegedly behaving as a “colonial power”, incapable
of taking local circumstances into account.39 But at the same time, it
may put the broader legitimacy of international human rights law at risk,
and which seems to be a more important concern for the IACtHR. The
important question here is, “legitimacy for whom?” As far as the ECtHR
is concerned, it would seem that legitimacy before States Parties is the key
concern. Conversely, for the IACtHR, even though it appears to be more
criticized by domestic governments than the ECtHR, legitimacy before
the world seems to be key.
One must bear in mind that, even if regional custom were identified
as such by the IACtHR, it is unclear whether the court could use it as
custom or if it would still need to package it as practice under the treaty.
Given the IACtHR’s fairly restricted mandate, which allows it to directly
apply only certain Inter-American human rights treaties, it seems no
practical benefit would arise for the IACtHR to use consensus to apply
37.
38.
39.

Vienna Convention, supra note 1, art 31(3)(b).
Tzevelekos & Dzehtsiarou, supra note 35 at 342.
Pasqualucci, supra note 22 at 303.

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custom. However, pre-existing custom can be, and has been, used to
challenge domestic law of States Parties as Yean and Bosico demonstrates.
In its use of international treaties as a means of identifying consensus,
the IACtHR has adopted a somewhat expansionist angle. It does not
see itself as declaring violations of those treaties, in fact, it has explicitly
declared that as falling outside its competence. It does, however, use
international treaties as means to expand on the meaning of provisions
of the ACHR, and to ultimately build a more harmonized international
legal order. This practice has an overall positive impact on the legitimacy
of the IACtHR, but it assumes (or at least unintendedly reinforces) a
fairly strict separation between the domestic and the international, which
can be detrimental to the legitimacy of the Court. I will come back to this
issue below. Before then, it is necessary to examine how the counterpart
of international law, being domestic law of States not parties to a case,
has been used.

III.

Consensus via Comparative Law

The use of comparative law (that is, the domestic law of a number of
countries) is the principal form of consensus interpretation in the
ECtHR. However, while the IACtHR has used comparative law, it has
not done so to the same extent. The strict separation between domestic
and international that the IACtHR adopts prevents more reliance on
domestic law, even if it would have positive legitimacy impacts on the
IACtHR.
There are two variations on the use of comparative law as a tool to
measure consensus: one, used more often, is to rely only on the domestic
law of the States subject to the human rights tribunal’s jurisdiction; the
other is to look more broadly at domestic law across the world, regardless
of whether they are parties to the relevant human rights treaty. While the
latter practice can have a positive impact on developing general principles
of law as a source of international law, it seems to be less important for
the purposes of identifying consensus relevant to the interpretation of
one specific treaty. As discussed in the previous section, the relationship
between consensus interpretation and non-treaty sources of international
law is only an incidental effect and not an objective. That said, the

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IACtHR has referred to both types of comparative law use.
Consensus interpretation based on domestic law (as a proxy to
domestic attitudes) is often used with respect to morally sensitive issues,
such as the ECtHR’s case law on LGBTI rights.40 The same can be said
with respect to the IACtHR. Atala Riffo and Daughters v Chile41 (“Atala
Riffo”) is the first case of the IACtHR dealing with LGBTI rights. The
case revolves around the rights of Karen Atala Riffo and her daughters
in the context of custody and administrative proceedings. An important
dimension of the case has to do with disciplinary proceedings against Ms.
Atala, and the implications of the IACtHR judgment for judicial design
in Chile.42 For present purposes, I will focus on the custody proceedings,
and the fact that Ms. Atala is a lesbian in a committed relationship with
children from a previous (heterosexual) union. I will focus on the custody
proceedings, resulting in the loss of custody of her three daughters, and
the case’s focus on the alleged international responsibility of the State for
discriminatory treatment and arbitrary interference in the private and
family life suffered by Ms. Atala due to her sexual orientation in this
matter.43
The IACtHR asserted its role as a subsidiary jurisdiction, holding
that it would not re-scrutinize the findings of domestic jurisdictions
on the facts or evidence. It restricted its mandate to compliance with
international human rights norms.44 Subsidiarity also meant the IACtHR
would not make a finding with respect to custody.45
In determining whether the IACtHR could include sexual
orientation among the grounds upon which discrimination is prohibited,
the IACtHR said that:
[t]he Court has established, as has the European Human Rights Court, that
40.
41.
42.

43.
44.
45.

Dzehtsiarou, European Consensus, supra note 5 at 34.
(2012), Inter-Am Ct HR (Ser C) No 239 [Atala Riffo].
David Kosar & Lucas Lixinski, “Domestic Judicial Design by Regional
Human Rights Courts” (2015) 109 American Journal of International
Law 713 [Kosar].
Atala Riffo, supra note 41 at para 3.
Ibid at para 65.
Ibid at para 66.

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human rights treaties are living instruments, whose interpretation must
go hand in hand with evolving times and current living conditions[.] This
evolving interpretation is consistent with the general rules of interpretation set
forth in Article 29 of the American Convention, as well as those established in
the Vienna Convention on the Law of Treaties.46

But the IACtHR immediately followed that with the pro homine
principle, in saying that:
[i]n this regard, when interpreting the words “any other social condition” of
Article 1(1) of the Convention, it is always necessary to choose the alternative
that is most favorable to the protection of the rights enshrined in said treaty,
based on the principle of the rule most favorable to the human being[.]47

Therefore, in this case, evolutionary and teleological interpretations seem
to come hand in hand. With respect to Latin American consensus, the
IACtHR said:
[w]ith regard to the State’s argument that, on the date on which the Supreme
Court issued its ruling there was a lack of consensus regarding sexual
orientation as a prohibited category for discrimination, the Court points out
that the alleged lack of consensus in some countries regarding full respect for
the rights of sexual minorities cannot be considered a valid argument to deny
or restrict their human rights or to perpetuate and reproduce the historical
and structural discrimination that these minorities have suffered. The fact
that this is a controversial issue in some sectors and countries, and that it is
not necessarily a matter of consensus, cannot lead this Court to abstain from
issuing a decision, since in doing so it must refer solely and exclusively to the
stipulations of the international obligations arising from a sovereign decision
by the States to adhere to the American Convention.48

In the same way the separation of domestic and international was used
to promote subsidiarity and deference to domestic law early in the
judgment, that separation is used here to promote the authority of the
international court (IACtHR).
Consensus interpretation was also invoked by a partially dissenting
judge in Atala Riffo. Judge Alberto Pérez Pérez used constitutional
provisions of thirteen Latin American countries to suggest that consensus
had not emerged as to whether a same-sex couple and the children of one
of them could be considered a “family”. He clearly tied the evolutionary
46.
47.
48.

Ibid at para 83.
Ibid at para 84.
Ibid at para 92.

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interpretation of the ACHR to the need for a consensus to be established,
asserting that, while consensus could be found to support the idea that
discrimination based on sexual orientation violates human rights, the
same could not be said about same-sex couples constituting families in
Latin America.49 It is somewhat telling that the IACtHR seems to have
ignored what, by all effects, is an orthodox application of the consensus
method. It has done so in favor of a more progressive interpretation
of the ACHR with respect to Article 17 (family protection), and still
used a version of consensus interpretation with respect to the grounds
for discrimination (Article 1(1)). A selective approach to consensus
interpretation seems to have been adopted by the IACtHR, meaning that
only a consensus interpretation that supports a more progressive view of
human rights will ultimately be deployed by the IACtHR.
Consensus was even more central in Artavia Murillo et al (“In
Vitro Fertilization”) v Costa Rica.50 In this case, the IACtHR considered
a prohibition of the practice of in vitro fertilization (“IVF”) in Costa
Rica in the aftermath of a ruling of the Constitutional Chamber of the
Costa Rican Supreme Court of Justice (“Constitutional Chamber”). The
IACtHR considered whether the prohibition amounted to an arbitrary
interference in the right to private life and the right to found a family, the
right to equality, and the disproportionate impact of the ban on women
and women’s rights.51 The IACtHR used evolutionary interpretation
(and consensus as a key component of it) particularly bearing in mind
that IVF is a procedure that did not exist when the ACHR was drafted,
and used it in respect to two issues: “(i) the pertinent developments in
international and comparative law concerning the specific legal status of
the embryo, and (ii) the regulations and practice of comparative law in
relation to IVF”.52
With respect to the latter, the IACtHR said that:
[t]he Court considers that, even though there are few specific legal regulations
49.
50.
51.
52.

Ibid at paras 19-23 for the partially dissenting opinion of Judge Alberto
Pérez Pérez.
(2012), Inter-Am Ct HR (Ser C) No 257.
Ibid at para 2.
Ibid at para 246.

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on IVF, most of the States of the region allow IVF to be practiced within their
territory. This means that, in the context of the practice of most States Parties to
the Convention, it has been interpreted that the Convention allows IVF to be
performed. The Court considers that this practice by the States is related to the
way in which they interpret the scope of Article 4 of the Convention, because
none of the said States has considered that the protection of the embryo should
be so great that it does not permit assisted reproduction techniques and, in
particular, IVF. Thus, this generalized practice is associated with the principle
of gradual and incremental – rather than absolute – protection of prenatal life
and with the conclusion that the embryo cannot be understand as a person.53

In making this assessment, the IACtHR also relied on rules of the Vienna
Convention, particularly in articulating “generalized practice” as meaning
subsequent practice under the ACHR. The Court used consensus to
rule out the argument that the prohibition of IVF could be justified to
protect the right to life of the embryo.54 The IACtHR concluded that
an embryo is not entitled to the right to life until it is implanted in the
uterus, when it becomes a fetus.55 The IACtHR used multiple methods
of interpretation, among them, consensus, and decided that they all led
to a similar conclusion on the matter.
Reliance on comparative law can be useful in examinations of
proportionality, which is an important element in tension with the
“Margin of Appreciation” doctrine (at least inasmuch as they both act
as defenses for the state). Resorting to the law of multiple states helps
legitimize choices as it testifies to the success of a particular model.56
This practice is somewhat limited, in that it undertakes a fairly
superficial reading of the law of the other countries involved, particularly
in the absence of IACtHR cases dealing with the same set of laws in the
other jurisdictions (which is more often than not the case when invoking
the consensus method of interpretation). In doing so, an important
factor to consider is that the analysis fails to take into account the
domestic context of the many consulted jurisdictions where legislation
itself does not adequately measure support around an existing law; it is
53.
54.
55.
56.

Ibid at para 256.
Ibid.
Ibid at para 264.
Rosalind Dixon, “Proportionality & Comparative Constitutional
Practice” 5 (manuscript on file, cited with permission).

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simply a proxy for it.57 The situation is perhaps sharper when speaking
of repeals of legislation, rather than positive creation of statutes. But it
still applies, at least to the extent that the presence of legislation itself is
at best an imperfect way to measure consensus, since it fails to take into
account domestic politics.58 Part of this is just a shortcoming of broad
comparison in which contextualism falls by the wayside instead focusing
on functional equivalents across jurisdictions.
In addition, the mechanism of seeking consensus through looking
at the domestic law of States Parties has been pursued by the IACtHR
in its advisory competence. According to the drafters of the ACHR, the
advisory competence of the IACtHR was intended to be wide. They
particularly envisioned the possibility of States Parties asking for Advisory
Opinions on the compatibility of their domestic laws with the ACHR,59 a
type of Advisory Opinion that the IACtHR has rendered on a number of
occasions.60 In a way, these opinions have paved the way for the IACtHR
to consider comparative domestic law as an avenue of interpretation.
It was only in a recent Advisory Opinion that the IACtHR tackled
the matter of consensus interpretation. In the Advisory Opinion on

57.
58.
59.
60.

Ibid at 4.
Ibid at 5.
Pasqualucci, supra note 22 at 39.
Proposed Amendments of the Naturalization Provisions of the Constitution
of Costa Rica (1984), Advisory Opinion OC-4/84, Inter-Am Ct HR (Ser
A) No 4; Compulsory Membership in an Association Prescribed by Law for
the Practice of Journalism (Arts 13 & 29 of the American Convention on
Human Rights) (1985), Advisory Opinion OC-5/85, Inter-Am Ct HR
(Ser A) No 5; The Word “Laws” in Article 30 of the American Convention
on Human Rights (1986), Advisory Opinion OC-6/86, Inter-Am Ct HR
(Ser A) No 6; Enforceability of the Right to Reply or Correction (Arts 14(1),
1(1) & 2 of the American Convention on Human Rights) (1986), Advisory
Opinion OC-7/85, Inter-Am Ct HR (Ser A) No 7; Compatibility of Draft
Legislation with Article 8(2)(h) of the American Convention on Human
Rights (1991), Advisory Opinion OC-12/91, Inter-Am Ct HR (Ser A)
No 12; International Responsibility for the Promulgation and Enforcement of
Laws in Violation of the Convention (Arts 1 & 2 of the American Convention
on Human Rights) (1994), Advisory Opinion OC-14/94 (Ser A) No 14.

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whether corporations are holders of human rights under the ACHR,61
the IACtHR noted that consensus could be a means to verify whether
corporations are entitled to human rights. Even though it ultimately
concluded that extending human rights to corporations fell outside the
text of the ACHR, it engaged with the idea that evolutionary interpretation
gives particular relevance to comparative law.62
The IACtHR recognized that all States Parties to the ACHR which
have accepted the jurisdiction of the court directly granted human rights
to legal entities. However, there were some differences among States
Parties with respect to which rights were granted to legal entities and
which legal entities were entitled to human rights.63 The IACtHR noted
that, despite their domestic law positions, a number of these countries
held that ultimately the ACHR did not support conferring human rights
to legal entities. Specifically, the IACtHR said that differences in approach
among States Parties, and the fact that the domestic law was not seen as
being pursuant to implementing the ACHR, made it so that consensus
was not a determining factor in the interpretation of the ACHR in this
respect.64
At the time of writing this article, a request for an Advisory Opinion
of the IACtHR is open and may help shed some light on the consensus
method in the Inter-American System. This Advisory Opinion is being
requested by Costa Rica, in which the State asks about the extent of ACHR
obligations with respect to implementing name changes for transgender
persons, as well as property rights flowing from same-sex relationships.65
61.

62.
63.
64.
65.

Entitlement of Legal Entities to Hold Rights Under the Inter-American
Human Rights System (Interpretation and Scope of Article 1(2), in relation
to Articles 1(2), 8, 11(2), 13, 16, 21, 24, 25, 29, 30, 44, 46 and 62(3) of
the American Convention on Human Rights, as well as of Article 8(1)(A) and
(B) of the Protocol of San Salvador) (2016), Advisory Opinion OC-22/16,
Inter-Am Ct HR (Ser A) No 22.
Ibid at para 63.
Ibid at para 64.
Ibid at paras 66-67.
Solicitud de Opinión Consultiva presentada por el Estado de Costa Rica,
online: Corte Interamericana de Derechos Humanos <www.corteidh.
or.cr/cf/jurisprudencia2/observaciones_oc.cfm?nId_oc=1671>.

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This opinion, being about issues involving changing social mores and
minority groups, could be an important opportunity for the IACtHR to
engage again in the consensus method, especially in light of its findings
in Atala Riffo.
Therefore, the IACtHR’s use of domestic law seems to be more
restricted to issues not squarely within the ACHR. International treaties,
on the other hand, are often used in these contexts, and also more
generally to support the IACtHR’s reasoning. These choices speak to the
limited reliance by the IACtHR on the domestic law of States, which is
indicative of its troubled relationship with the principle of subsidiarity,
discussed further below.
Before getting to that, there is another possibility within the realm of
consensus interpretation which has been discussed in some particularly
volatile cases in the IACtHR jurisprudence. These have to do with whether
a State can rely on relatively clear expressions of domestic democratic will
as a means to interpret its international human rights obligations. To
those situations I move next.

IV.

Consensus via Domestic Politics

Assuming consensus is related to treaty interpretation, the lack of
consensus can work for States, since it creates a presumption in favor
of the solution adopted by the State on a given matter, and deferring
to said position.66 After all, once the State has deviated from consensus,
it can justify the domestic posture by stating that consensus does not
quite cover the State’s interference with human rights, or, even if it does,
that the State has a particularly strong justification to pursue alternative
behavior.67
In the ECtHR context, European Consensus is meant to create
a rebuttable presumption that the ECtHR will follow the majority
of States Parties. That presumption can be rebutted in the presence
66.
67.

Dzehtsiarou, European Consensus, supra note 5 at 29.
Kanstantsin Dzehtsiarou, “European Consensus and the Evolutive
Interpretation of the European Convention on Human Rights” (2011)
12 German Law Journal 1730 at 1733 [Dzehtsiarou, “Evolutive
Interpretation”].

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of “particularities of the historical and political development of a
respondent State or moral sensitivity on the matter at issue”.68 Rebutting
the presumption on these grounds, however, imposes a high burden
on the State, significantly raising the stakes of a case, or at least further
underlining high stakes.
Consensus can thus be used in international human rights
adjudication as reliance on internal consensus, that is, the political views
within certain states, as opposed to across a region. Of tools to gauge
internal consensus, referenda have been used by the ECtHR on certain
occasions, in part because of their clarity and “objectivity” on a specific
matter. Naturally, these tools are not always available, but when they
are (as in cases involving abortion rights in Ireland), they offer powerful
subsidies to rebut the presumption in favor of regional consensus on a
topic.69 In the IACtHR practice, the Court has consistently rejected the
possibility of relying on internal democratic consensus. Results have been
mixed in the aftermath of cases, leading to attacks on the legitimacy of
the IACtHR and its judgments vis-à-vis States Parties.
One instance in which domestic debate and controversy ran
counter to the IACtHR’s position was Gomes Lund et al (“Guerrilha do
Araguaia”) v Brazil,70 having to do with amnesty laws enacted in Brazil
in the aftermath of the country’s military dictatorship (which lasted
from 1964 to 1985). Between 1972 and 1975, a rural guerrilla group,
Guerrilha do Araguaia, was persecuted by the military dictatorship, and
was ultimately decimated by the armed forces. In 1979, an amnesty law
was enacted in Brazil which covered acts between 1961 and 1979, and
extended to government officials and non-governmental opposition
forces. Reparations were granted to surviving relatives of the guerrilla’s

68.
69.
70.

Dzehtsiarou, European Consensus, supra note 5 at 3.
Ibid at 52-54.
(2010), Inter-Am Ct HR (Ser C) No 219 [Gomes].

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members in the 1990s.71
A case was brought to the Inter-American Commission by relatives
of members of the Guerrilha do Araguaia, and made its way to the InterAmerican Court of Human Rights. Months before the hearing at the
IACtHR, the Brazilian Federal Supreme Court ruled in favor of the
constitutionality of the amnesty law. The Brazilian government made
an argument based on internal consensus, and relied on the finding of
the law’s constitutionality. Specifically, it presented an objection to the
IACtHR’s jurisdiction in the case. The Brazilian government argued that,
if the IACtHR were to hear the merits of the case, it would in fact, act
as a court of fourth instance, and review the judgment of the Brazilian
Federal Supreme Court. To that, the IACtHR responded saying its role
was not to scrutinize internal legality, but rather compatibility with an
international human rights treaty.72 In particular, it stated that:
[o]n numerous occasions, the Court has held that ascertaining whether the State
violated its international obligations by means of its actions before its judicial
organs, can lead to this Court examining the particular domestic procedures,
eventually including the decisions of the higher courts, so as to establish the
compatibility with the American Convention. In the present case, the InterAmerican Court is not called to carry out an analysis of the Amnesty Law in
relation with the National Constitution of a State, an analysis of domestic law
which is not of its jurisdiction, and which is an issue of the Non-compliance
Action No. 153 …, but rather it must assess a conventional control, namely
to assess the alleged non-compatibility of said law with Brazil’s international
obligations pursuant to the American Convention. As a consequence, the
arguments in regard to the objections are matters related directly with the
merits of the controversy, which can be examined by the Court under [the]
American Convention, without contravening the rule of the “fourth instance.”
As such, the Court dismisses this preliminary objection.73

In support of the idea that the judgments of higher domestic courts can

71.

72.
73.

Yolanda Gamarra, “National Responses in Latin America to International
Events Propelling the Justice Cascade: The Gelman Case” in José María
Beneyto & David Kennedy, eds, New Approaches to International Law: The
European and the American Experiences (The Hague: TMC Asser Press,
2012) 75 at 86.
Ibid at 87.
Gomes, supra note 70 at para 49.

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be scrutinized, the IACtHR cited a number of previous cases.74 It also
used a number of domestic judgments,75 as well as the findings of regional
and international bodies (including the African and European Systems,
the United Nations Security Council, UN Treaty Bodies, the UN High
Commissioner for Human Rights and several UN Rapporteurs, as well
as International Criminal Tribunals) to make the case for an existing
international consensus against amnesties.76 The Court concluded by
saying:
[t]his Court has previously ruled on the matter and has not found legal basis to
part from its constant jurisprudence that, moreover, coincides with that which
is unanimously established in international law and the precedent of the organs
of the universal and regional systems of protection of human rights. In this
sense, regarding the present case, the Court reiterates that amnesty provisions,
the statute of limitation provisions, and the establishment of exclusions of
responsibility that are intended to prevent the investigation and punishment
of those responsible for serious violations to human rights such as torture,
summary, extrajudicial, or arbitrary executions, and enforced disappearance are
not admissible, all of which are prohibited for contravening irrevocable rights
recognized by International Law of Human Rights.77

In this judgment, the IACtHR used international consensus as a means to
disregard strong internal consensus, as in Gelman v Uruguay78 (“Gelman”).
Further, consensus became a tool to maintain findings of the IACtHR
in comparable cases and not deviate from them. International consensus
served the purpose of maintaining the internal legitimacy of the IACtHR,
by making its judgments more consistent among comparable cases.
With respect to the Brazilian Federal Supreme Court’s judgment
in particular, the IACtHR concluded that Brazil owed an obligation
74.

75.
76.
77.

78.

“Street Children” (Villagrán-Morales et al) v Guatemala (1999), Inter-Am
Ct HR (Ser C) No 63, at para 222; Escher et al v Brazil (2009) Inter-Am
Ct HR (Ser C) No 200, at para 44; Dacosta Cadogan v Barbados (2009),
Inter-Am Ct HR (Ser C) No 204, at para 24.
Gomes, supra note 70 at paras 163-69.
Ibid at paras 150-62.
Ibid at para 171, citing Barrios Altos v Perú (2001), Inter-Am Ct HR (Ser
C) No 75, at para 41; La Cantuta v Peru (2006), Inter-Am Ct HR (Ser C)
No 162, at para 152; “Las Dos Erres” Massacre v Guatemala (2009), InterAm Ct HR (Ser C) No 211, at para 129.
(2011), Inter-Am Ct HR (Ser C) No 221 [Gelman].

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to undertake control of conventionality and thus follow the ACHR,
as interpreted by the IACtHR, in considering the constitutionality of
domestic law. The IACtHR said that “[t]he conventional obligations of
States Parties bind all the powers and organs of the State, those of which
must guarantee compliance with conventional obligations and its effects
(effet utile) in the design of its domestic law”.79
After the IACtHR declared amnesties, and specifically the Brazilian
Supreme Federal Court’s upholding of amnesties, as a breach of
international human rights obligations, the response of the Brazilian
government has been, to date, to ignore the IACtHR judgment so as
not to upset internal consensus. Partial compliance with the judgment
is underway, but unlike Uruguay which eventually did away with the
amnesty law, Brazil remains convinced of the importance of the amnesty
law for internal stability. Thus, in this case, the reliance on international
consensus, and not allowing for internal consensus to challenge it, has
meant a direct attack on the legitimacy of the IACtHR and an accusation
of overreach of its mandate.
In Gelman, the IACtHR examined the issue of going against the
expressed will of the Uruguayan people. In 1986, Uruguay passed what is
known as an “Expiry Law”, which essentially shut the door on prosecutions
for crimes perpetrated during the country’s military dictatorship.80 Two
plebiscites attempting to change the law failed in 1989 and 2009, and
the IACtHR in Gelman was then faced with whether these referenda
79.

80.

Gomes, supra note 70 at para 177, citing International Responsibility for the
Promulgation and Enforcement of Laws in Violation of the Convention (Arts.
1 and 2 of the American Convention on Human Rights) (1994) Advisory
Opinion OC-14/94 (Ser A) No 14, at para 35; Miguel Castro-Castro
Prison v Perú (2006), Inter-Am Ct HR (Ser C) No 160, at para 394;
Zambrano Vélez et al v Ecuador (2007), Inter-Am Ct HR (Ser C) No 166,
at para 104; Castillo-Petruzzi et al v Peru (1999), Inter-Am Ct HR (Ser C)
No 59 (considering clause 3); De la Cruz Flores v Perú (2010), Order of
the Int-Am Ct HR (considering clause 5).
For commentary on this law, see generally, Daniel Soltman, “Applauding
Uruguay ’s Quest for Justice: Dictatorship, Amnesty, and Repeal of
Uruguay Law No. 15.848.” (2013) 12 Washington University Global
Studies Law Review 829.

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could justify the existence of the amnesty law.81 In Uruguay, support for
amnesties in the context of the dictatorship goes back to at least the late
1970s, when Uruguayans in exile demanded amnesty, for instance, for
a military officer who fled to Europe because he refused to participate
in torture in Uruguay. In fact, an amnesty law, commonly known as the
“National Pacification Law”, was eventually passed, granting amnesties
to people on both sides of the conflict in Uruguay. This law had several
loopholes which allowed prosecutions for certain crimes, however the
military refused to accept these loopholes, and refused to cooperate
with civilian courts. As a result, the Expiry Law was passed, preventing
prosecutions for the majority of conduct before March 1, 1985.82
Shortly after the passage of the law, human rights groups mobilized
and collected enough signatures for a national referendum for the
abolition of the Expiry Law. This referendum, which took place in
1989, resulted in 56.7% of the population voting in favor of the Expiry
Law, and 43.3% voting for its repeal. There has been a fair amount of
speculation as to whether fear of retaliation from the military played
a role in this outcome, but no conclusive evidence has been found to
support the idea.83
The second referendum, in 2009, came when international legal
opinion from academics and activists had clearly crystalized to say that
amnesties were incompatible with international law. Uruguay’s Supreme
Court had similarly found the application of certain parts of the Expiry
Law to be incompatible with the Constitution in the context of a specific
criminal case (however, did not rule directly on the constitutionality
in the abstract). Even still, the President of Uruguay was considering
prosecuting former Heads of State in Uruguay under the dictatorship.
81.

82.
83.

For an in-depth discussion of this history, see Karen Engle, “Self-Critique,
(Anti) Politics and Criminalization: Reflections on the History and
Trajectory of the Human Rights Movement” in José Maria Beneyto &
David Kennedy, eds, New Approaches to International Law: The European
and the American Experiences (The Hague: TMC Asser Press, 2012) 41 at
61-68.
Ibid at 62-63.
Ibid at 64.

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Regardless, the referendum failed to repeal the law again.84
To whether the referenda could be validly used to oppose the
IACtHR’s very strong anti-amnesty stance, the Court stated:
[t]he fact that the Expiry Law of the State has been approved in a democratic
regime and yet ratified or supported by the public, on two occasions, namely,
through the exercise of direct democracy, does not automatically or by itself
grant legitimacy under International Law. The participation of the public
in relation with the law, using methods of direct exercise of democracy, –
referendum (paragraph 2 of Article 79 of the Constitution of Uruguay) – in
1989 and “plebiscite (letter A of Article 331 of the Constitution of Uruguay)
regarding a referendum that declared as null Articles 1 and 4 of the Law –
therefore, October 25, 2009, should be considered, as an act attributable to the
State that give rise to its international responsibility.
The bare existence of a democratic regime does not guarantee, per se, the
permanent respect of International Law, including International Law of Human
Rights, and which has also been considered by the Inter-American Democratic
Charter. … the protection of human rights constitutes a impassable limit to
the rule of the majority, that is, to the forum of the “possible to be decided”
by the majorities in the democratic instance, those who should also prioritize
“control of conformity with the Convention” … which is a function and task
of any public authority and not only the Judicial Branch. … Other domestic
courts have also referred to the limits of democracy in relation to the protection of
fundamental rights.85

The IACtHR then went on to consider the domestic jurisprudence not
only of States Parties to the ACHR (like Costa Rica and Colombia),
but also of non-parties such as the United States. The IACtHR even
considered countries outside the Americas such as Slovenia, South Africa,
and Switzerland. In casting such a wide net, one could say the IACtHR
relied on a version of “international consensus” in other countries’
domestic legal systems, and of domestic courts relying on international
consensus via international instruments, to overrule internal consensus.
The exercise in Gelman of looking at other domestic jurisdictions
seems to align with what the ECtHR once did when it referred to
“international trends”, that is, the domestic law of States outside the
jurisdictional scope of the court, as a means to identify consensus building

84.
85.

Ibid at 65-66.
Gelman, supra note 78 at paras 238-39 [emphasis added].

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worldwide.86 This tool is too much of an interpretive stretch and does
little to enhance the legitimacy of a regional body before States Parties.
But, it can enhance the body’s legitimacy before stakeholders outside the
jurisdictional scope of the court, which seems to be a desirable outcome
for the IACtHR.
Coupled with the conventionality control doctrine, Gelman shows
a limited understanding and use of subsidiarity as a governing principle
of international law.87 This is in marked contrast with the embrace of
subsidiarity in Atala Riffo. In fact, the IACtHR in Gelman insisted on
a separation between domestic circumstances and international law,
circumscribing its role as assessing compatibility with international
legal obligations, regardless of domestic consensus. In Atala Riffo, the
same argument of separation was made to isolate certain aspects of
the domestic proceedings, such as the merits of the custody hearing.
In Gelman, though, the IACtHR went as far as suggesting that the
referenda, which had been organized by the State, were in fact acts of
State for which Uruguay was internationally responsible.88 So, while the
separation between domestic and international meant subsidiarity and
legitimacy in Atala Riffo, it meant disregarding domestic consensus and
mandate creep in Gelman.
In the aftermath of the IACtHR judgment in Gelman, the President
of Uruguay signed a law repealing the Expiry Law, just a few days before
the statutes of limitations created additional obstacles for prosecution.
The new law also made certain conduct before March 1, 1985 criminal
under international law, to which statutory limitations did not apply,
thus chastising the country’s Supreme Court which had, in May 2011,
classified enforced disappearances as an ordinary crime.89 Therefore, the
reliance on international consensus helped override internal consensus
not only as far as the IACtHR was concerned, but it also helped
86.
87.

88.
89.

Dzehtsiarou, European Consensus, supra note 5 at 65.
Jorge Contesse, “Contestation and Deference in the Inter-American
Human Rights System” (2016) 79 Law and Contemporary Problems 123
at 135.
Gamarra, supra note 71 at 90.
Engle, supra note 81 at 66.

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domestically, where arguments about international consensus became
vital in overturning the law.
Importantly, though, one must be mindful of what reliance on internal
consensus ultimately means for the legitimacy of an international court.
To be sure, it may mean more ready acceptance of a Court’s judgment
domestically if it takes into account strong domestic support, but at the
same time it can have negative ripple effects across a region, especially if
the regional court is seen to be creating exceptions in its own case law.
On the other hand, as Mahoney has argued, “[w]here societal values are
still the subject of debate and controversy at national level, they should
not easily be converted by the Court into protected Convention values
allowing for only one approach”.90
These multiple threads of consensus interpretation all relate to the
legitimacy of the IACtHR. Some of them can be used to enhance the
legitimacy of the IACtHR vis-à-vis States Parties, whereas others seem to
have the opposite effect, and actually align themselves more closely with
the idea that, because human rights law is quintessentially a countermajoritarian type of discourse, it should not worry about democratic will
(which in fact can be oppressive of minorities). Underlying the uses of
consensus interpretation are questions about the (de)legitimizing effects
of treaty interpretation by the IACtHR. But a number of questions need
to be answered in order to understand how legitimacy plays a role in the
IACtHR’s context. The next section addresses these issues.

V.

Consensus and Legitimacy

In the European context, consensus interpretation is fundamentally a
response to legitimacy challenges raised. These are challenges raised against
attempts by the ECtHR when it engages in evolutionary interpretation,
or the idea of treating the ECHR as a living instrument that must be
adapted to everyday circumstances.91 Because evolutionary interpretation
90.

91.

Paul Mahoney, “Marvellous Richness of Diversity of Invidious Cultural
Relativism?” (1998) 17 Human Rights Law Journal 1 at 3, cited in
Dzehtsiarou, European Consensus, supra note 5 at 54.
Dzehtsiarou, “Evolutive Interpretation”, supra note 67 at 1730.

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is also a common feature of the IACtHR’s jurisprudence (as discussed
above), staking consensus interpretation against evolution, and the
legitimacy concerns that come with it, seems to be a good starting point.
The adjudication of international human rights law by regional
courts is for the most part considered to be subsidiary to States’ own
efforts in internalizing these norms and following them. Therefore, at the
crux of the debate between evolutionary interpretation and consensus
is the respect that regional human rights courts owe to the principle of
subsidiarity, and therefore respect to States’ rights to implement their
own international human rights obligations. It is only when subsidiarity
fails that consensus comes into operation, as a means to bring the human
rights court to a point that simultaneously respects its own subsidiary role
by paying respect to States’ discretion as a first step of its reasoning, but
at the same time advancing human rights protection (using other States’
discretionary application of human rights norms to impose responsibility
on a non-complying State).
The breadth of subsidiarity granted to a State (in the ECtHR’s
terminology, the State’s Margin of Appreciation) depends on: (1) the
nature of the right protected; (2) its importance; (3) the interference by
the State on the enjoyment of said right; (4) the object of interference;
and (5) regional consensus around the issue.92 Evolutionary interpretation
is a counterpoint to subsidiarity that can undermine the legitimacy of a
human rights court, at least in that it may require a human rights court
to undermine its own judgments, thus reducing the predictability of
outcomes. Consensus, or more specifically the change in consensus,
can work as a shield to help a court justify a change of position.93 The
IACtHR uses consensus to reinforce its own case law, as discussed above.
As Jorge Contesse has argued, the IACtHR “embraces a maximalist
model of adjudication”, one that makes little to no room for State
discretion, or subsidiarity more generally.94 In fact, former IACtHR
Judge and President, Cançado Trindade, has been a strong opponent of
92.
93.
94.

Dzehtsiarou, European Consensus, supra note 5 at 135.
Ibid at 139.
Contesse, supra note 87 at 124.

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the IACtHR officially adopting the doctrine of margin of appreciation.95
Part of the reason for Trindade’s opposition rests in a distrust of domestic
judicial and other legal structures, particularly the lack of strong
judiciaries, a problem that the IACtHR has consistently tackled in its own
jurisprudence. As I have co-argued elsewhere, when the IACtHR engages
with domestic judiciaries, it does so with the intent of strengthening
domestic institutions; but, in doing so, the IACtHR also strengthens
itself.96 It is thus unclear whether the building up of domestic legal
structures could ever reach a stage in which subsidiary could be trusted
by cynics to perform the role of restricting the scope of application of
the IACtHR. The consequence is that the maximalist approach of the
IACtHR still reigns, and with it, evolutionary interpretation.
Attacks on the legitimacy of the IACtHR and its perceived
“intrusiveness” seem incapable of mounting a credible challenge to its
expansive mandate. This attitude makes it nearly impossible for the
IACtHR to seriously engage with consensus interpretation as a means to
restrict its own mandate. After all, excessive deference to States Parties,
the first step triggering the use of consensus interpretation, is missing .97
But the fact that consensus method can lend additional legitimacy to the
IACtHR creates an incentive for the method to be deployed in other,
creative ways.
Consensus interpretation is one way of representing the tipping point
necessary for evolutionary interpretation of a human rights treaty. It also
helps draw a clearer line in the balancing of subsidiarity and evolution.98
However, consensus interpretation does not necessarily run counter to
evolution, it merely slows down the pace of evolution by restricting some

95.
96.
97.

98.

Ibid at 133-34.
Kosar and Lixinski, supra note 42 at 747.
But see Nino Tsereteli, “Emerging doctrine of deference of the InterAmerican Court of Human Rights?” (2016) 20 International Journal of
Human Rights 1097 (arguing for the emergence of a doctrine of deference
in the IACtHR practice, at least in regard to cases that do not involve
state violence or vulnerable groups).
Dzehtsiarou, European Consensus, supra note 5 at 5.

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of it.99
States in the European context still use their original consent as a
means to challenge the ECtHR.100 Similarly, in the Americas, a range of
States have criticized the IACtHR’s action for straying too far from the
original consensus of States Parties. As a result, there have been proposals
for “strengthening process[es]” with respect to the Inter-American System
within the parent organization, which would undermine the InterAmerican Commission’s powers.101 It may even undermine attempts at
pitting one organ of the Inter-American System against another, such as
the request for an Advisory Opinion in which Venezuela asked the InterAmerican Court to explain whether it had the power to “control the
legality” of acts of the Commission. If the Court said yes, it would risk
alienating the Commission; if the Court said no, it would come across
as ineffectual towards States Parties.102 Regardless, the IACtHR is usually
dismissive of original consent, and instead relies on the protection of
human rights (the pro homine approach) as the key goal of its interpretive
activity.
A related argument is that the opposite of consensus is pluralism,
which can also be seen as a desirable goal.103 Pluralism can be not only
ethnic pluralism, but also recognition of the diversity of legal solutions,
and, with it, the authority of individual States to rule their own affairs.
But in the ethnic context, consensus interpretation also has its potential
problematic effects, as Benvenisti argues.104 After all, it can prevent courts
from fulfilling their roles as independent guardians of an international

Dzehtsiarou, “Evolutive Interpretation”, supra note 67 at 1736.
Dzehtsiarou, European Consensus, supra note 5 at 152.
Contesse, supra note 87 at 144.
I/A Court H.R., Control of due process in the exercise of the powers of
the Inter-American Commission on Human Rights (Articles 41 and 44
to 51 of the American Convention on Human Rights). Advisory Opinion
OC-19/05 of November 28, 2005. Series A No.19.
103. Tzevelekos & Dzehtsiarou, supra note 35 at 325.
104. Eyal Benvenisti, “Margin of Appreciation, Consensus, and Universal
Standards” (1999) 31 Journal of International Law and Politics 843 at
853, cited in Dzehtsiarou, European Consensus, supra note 5 at 127.
99.
100.
101.
102.

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Lixinski, The Consensus Method of Interpretation by the IACtHR

human rights treaty.105 This is a reason why it has been rejected by the
IACtHR in Atala Riffo,106 as discussed above. The counter-majoritarian
argument also played a role in Gelman, discussed above. The IACtHR
in Gelman stated that international human rights law is a limit on
majoritarian rule, and as such should be implemented by States in
spite of existing domestic consensus.107 Thus, it seems that the countermajoritarian argument can be used to reject consensus interpretation
across the board by a court, like the IACtHR, staunchly in favor of
human rights and the protection of less favored social groups.
Relatedly, there is naturally a risk that too much emphasis on
consensus as a tool for interpretation will promote a “lowest common
denominator” approach to human rights protection, which is the
opposite of what a human rights court’s mandate should be. Judges at
the ECtHR seem to be aware of this risk.108 This is precisely a risk that
the IACtHR seems to wish to avoid when it sets a higher bar to human
rights protection through mechanisms like pro homine interpretation and
conventionality control.
As a result, the IACtHR avoids the limiting potentials of consensus
interpretation. It will rely on them in order to assert legitimacy of its
already existing jurisprudence, but not when consensus challenges said
jurisprudence. In doing so, the IACtHR seems to imply that it draws
legitimacy not from the States Parties, but from external stakeholders,
and an abstract idea of human rights and human dignity. Thus, consensus
will be used more readily if it is in line with an expansion of the IACtHR’s
mandate.

VI.

Conclusion

It seems that the IACtHR searches for consensus across a number of areas,
many of which match strategies adopted by the ECtHR. But, in doing so,
the IACtHR does not use consensus as closely tied to subsidiarity; rather,
105.
106.
107.
108.

Dzehtsiarou, “Evolutive Interpretation”, supra note 67 at 1735.
Dzehtsiarou, European Consensus, supra note 5 at 127-28.
Gamarra, supra note 71 at 90-91.
Dzehtsiarou, European Consensus, supra note 5 at 202.

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it seems to reject subsidiarity, and use the separation between domestic
and international not as a means to promote subsidiarity, but rather as
a means to distance itself from domestic concerns that may have impact
on its judgments. It is only broader domestic consensus that will be relied
upon, and, even then, more often than not in support of more expansionist
interpretations of the ACHR. In this sense, consensus interpretation in
the IACtHR jurisprudence appears to be not a mechanism of legitimacy
vis-à-vis States Parties, but one of mandate creep.
In other words, the activity of the IACtHR on consensus
interpretation does not seem to be particularly connected to the
subsidiarity of human rights. It is rather undertaken, in conjunction
with other interpretive techniques, to advance a greater mandate for the
IACtHR, one that seeks legitimacy not from the States Parties, but rather
from external sources. The corpus juris of international human rights may
be a legitimating source, and it is something the IACtHR sees itself as
contributing to first and foremost. Thus, while in the ECtHR context,
consensus interpretation is a tool to enhance legitimacy vis-à-vis States
Parties, this is only partly true in the IACtHR context. In fact, it seems
that legitimacy gains are only seen as unintended consequences of the
use of consensus interpretation, and not their objective. The IACtHR’s
primary commitment is still to the defense of human rights in the region,
in spite of States Parties.
This attitude of the IACtHR can have deep impacts on its legitimacy
vis-à-vis States Parties. Even if this legitimacy is not a primary concern
for the IACtHR, it ultimately affects its ability to promote the change
it seeks to implement across the Americas. The IACtHR should thus
consider the possibilities of consensus interpretation more seriously, at
least inasmuch as it can create pathways for entrenchment of the ACHR,
as interpreted by the IACtHR.