La démarche interculturelle d’élaboration de la jurisprudence : outil privilégié pour une approche plurielle des droits de l’Homme.
The case of the inter-American system for the protection of human rights
Title in English : The crosscultural approach to the devising of case law: a privileged tool towards a plural approach to human rights.
By Melisa Lopez
Release Date: November 2011
This study also exists in Spanish
The IRG’s work on normative pluralism
In the framework of its “Legitimacy and the rootedness of power” programme, the IRG questions the very basis of the links between State and society wherein State authority finds its justification. Wherever we may be, from Europe to the Americas via Africa, the news is awash with daily instances of more or less violent rifts between the populations, their public institutions and their leaderships. Official power and societies are disconnected and state regulation does not provide for the effective formulation of a material and symbolic locus standi for the actors as a whole (public institutions, civil society, private sector, etc.). Thus arises the question of “legitimacy”, this value added to power which secures for it the populations’ acceptation and compliance. Legitimacy harks back to the vision that societies and authorities have of their rationale and duties. The questions of legitimacy and organisation of power call for a pragmatic approach stemming from the observation of the realities of social diversity and how it impinges on the representations, practices and relations to power, which in turn impact, in the fullness of time, the process of State formation. The IRG and its partners have focussed their joint endeavours on the understanding and the analysis of the diverse sources of power legitimacy, their interactions and the plural regulations that they beget, and thus on normative pluralism.
The analysis set forth in this paper arises from an IRG approach aimed at advancing the understanding and the promotion of normative pluralism to refund democratic governance. At the crossroads between international law and local realities, not only do international jurisdictions for the protection of human rights make up prime subjects for the study of normative pluralism, but also present relevant experts with live laboratories in which to experiment with tools for its implementation, notably in terms of rights definition.
A descriptive study conducted at the Inter-American Court of Human rights
Accordingly in 2010, the IRG commissioned two field studies documenting the work of international jurisdictions. These studies bore on the ICTR - International Criminal Tribunal for Rwanda (Evelise Plenet-CERDHAP1) and the IACHR - Inter-American Court of Human Rights (Melisa Lopez-CERDHAP). The objective was to bring into light the building blocks of a crosscultural approach to the devising of case law, and to gain a better grasp of the extent to which the latter is both part of and party to the plural devising of international normativity regarding the protection of human rights.
This paper relies on analyses collected by Melisa Lopez during a mission in Costa Rica (where the Inter-American Court of Human Rights has its headquarters) and Peru in 2010. This visit aimed to gain a deeper understanding of the so-called “crosscultural” approach called upon in the elaboration of Inter-American Court of Human Rights case law, specifically in the cases of violations of indigenous peoples’ rights. The object was to collect evidence from the diverse parties involved in the inter-American system of human rights protection. It was also important to attend decentralised public hearings in order to better comprehend what characterizes this process and what makes it a live laboratory for a plural approach to human rights.
1: Respectively: The Law as a Mirror of Cultures. For Another Globalization] Daring a Pluriverse. For a multicultural and Aesponsible Globalisation Law, governance and Sustainable Development Translating our worldwide responsibilities. Recomposing our legal landscapes.
2: Centre d’Etudes et de Recherche sur le Droit, l’Histoire et l’Administration Publique (Centre for the research and study of law, history and public administration)
- Dispositif institutionnel et normatif du système interaméricain des droits de l’Homme
- Le multiculturalisme au cœur du système interaméricain des droits de l’homme
- Les deux axes fondamentaux de la démarche en œuvre au sein du système interaméricain de protection des droits de l’homme
- Une jurisprudence innovante, source du droit international en matière des droits de l’homme : vers une approche plurielle