The Jurisprudence of the Inter-American Human Rights System: Standard-setting or International Law-making?

The terms ‘international human rights standards’ or ‘inter-American human rights standards’ are often used by the Inter-American human rights bodies as almost a synonym for human rights or the obligations that States have in this area. In their discourse, these ‘standards’ are usually considered not to refer solely to the normative expression of human rights in treaties, custom or general principles of law. On the contrary, such expression is given a use that also includes non-binding instruments whose normative (legal) content is doubtful or, at least, its bindingness is not expressly declared or recognized by any international rule (e.g., declarations, resolutions of international organizations, judicial decisions, views and general comments of treaty bodies, case law of the Commission, etc.).

In recent years, the Inter-American Commission in particular has produced many thematic reports of so called ‘Inter-American standards’, which are compendia of the jurisprudence of the Court and the Commission. They contain no clear definition of the concept of standards. Yet, inadvertently or boldly, they are invoked as a rule of conduct (source of obligations) for States, even when their content has clearly not been determined by, or based on, the traditional sources of international law.

It is possible that this term is used as a performative utterance, pursuing a specific ideological intentionality with the meaning attributed (i.e., a progressive case for human rights). Is the jurisprudence of both the Inter-American Commission and Court a source of international law? Have they attributed themselves a law-making power?

C. Ignacio de Casas is an adjunct professor at Austral University in Argentina, where he also coordinates the Graduate Diploma in Human Rights Law. Prior to that, he worked for a law firm focussing on human rights international litigation. He has an Abogado degree from the University of Mendoza, a masters from the University of Oxford and is a PhD candidate at Austral University. He is also co-founder of the Centro Latinoamericano de Derechos Humanos (CLADH).