The strategic prudence of the inter-American court of human rights: Rejection of requests for an advisory opinion

Abstract

Advisory opinions may be considered to challenge sovereignty because they often address political issues which may be contentious at the national level. This paper argues that the Inter-American Court of Human Rights is currently under pressure to uphold its legitimacy and examines whether the Court practices strategic prudence by rejecting certain requests for advisory opinions. In particular, it discusses four cases involving political issues: alleged incompatibility of national legislation with the American Convention, the prohibition of corporal punishment of children, the availability of judicial remedies for persons sentenced to death penalty, and due process rights relating to the impeachment of the president of Brazil. The article highlights that the examples of restraint reveal a complex balance between the Court’s role in applying and interpreting human rights in relation to nurturing democracy while respecting sovereignty. This signals a possible tension between the conventionality control doctrine and the limitation of the Court’s advisory jurisdiction.