Lunch seminar with Gisela Alejandra Ferrari

The Influence of the European Court of Human Rights on the Argentine Supreme Court: A Complex Case of Migration of Constitutional Ideas

Abstract:

The last few decades have witnessed constitutional and international law becoming more and more intertwined. As a result of the current trends of ‘internationalisation of constitutional law’ and ‘constitutionalisation of international law,’ the new universe in which domestic constitutions operate is made up of an increasingly transnational legal environment, in which international treaties, customary international law, and supranational infrastructures created by regional and international law come into play. At the same time, the emergence of a transnational judicial community and a global judicial dialogue, and thus of an increasing interaction between courts, can result in the blurring of the boundaries between domestic and international law. Within this universe, references to decisions of foreign or international courts by domestic constitutional courts have come under the spotlight in recent years. 

Whereas some still debate whether judges should engage in comparative analyses, the use of comparative law in constitutional adjudication has been an accepted practice in Argentina since the establishment of the Argentine Supreme Court (ASCt) in 1863. Countless references to foreign courts can be found along the case law of the court. In the last decades, as part of the regional tendency to open up domestic legal systems to the Inter-American system, the case law of the Inter-American Court of Human Rights (IACtHR) has had a gradually stronger influence on the Argentine judiciary. The European Court of Human Rights (ECtHR), although to a lesser extent, has also had an influence on national courts. The ASCt has explicitly referred to the ECtHR on over eighty occasions. 

The Ph.D. thesis I am currently working on, entitled ‘The Influence of the European Court of Human Rights on the Argentine Supreme Court: A complex case of migration of constitutional ideas,’ will intend to contribute to the profuse global debate on the use of comparative reasoning by judges involved in constitutional adjudication, as well as to explore certain aspects of the complex interaction between international and domestic courts. The innovation of the work will be to systematically examine the influence of the ECtHR on the ASCt. The direct impact of the ECtHR on domestic courts within the region remains largely unexplored. The issue is of current relevance—the most prominent evidence is the use of ECtHR case law on margin of appreciation by the ASCt in Fontevecchia (2017), a decision that notoriously deals with the execution of IACtHR judgments by the ASCt.

The influence of the ECtHR on the ASCt constitutes an interesting case study of the interaction between international and domestic courts for two reasons. First, because Argentina is part of the Inter-American human rights system, but the ASCt still draws inspiration from the regional court’s European counterpart. Second, because the case allows to point out certain features of the current transjudicial communication, identifying different ways in which ideas can travel between courts. Since the ECtHR’s influence on the IACtHR has been notable, the ASCt may also be influenced by the ECtHR indirectly or in a less evident way when referring to IACtHR judgments that have in turn drawn on ECtHR case law. Thus, the case study will help to reveal how ideas travel through jurisdictions and how they adapt and transform along the way.

The presentation will outline the background, aims and methods of the research, and share some key findings. 

All interested are welcome to attend. Registration is not necessary.