Between Possibility and Peril: Domestic Courts and the Selective Enforcement of International Human Rights

When do domestic courts protect international human rights? By the end of the twentieth century, the world had witnessed an unprecedented flourishing of international human rights law and a growing number of democratic states whose domestic institutions promised to protect those rights. A single institution often became the center of these efforts: the court. Advocates in newly democratized states could look to high courts to demand that their governments comply with international law and bring policy into line with liberal rhetoric.

This process, however, put these young courts in a difficult position. With no deep well of historical legitimacy to draw on in new political environments, courts had to weigh high-minded legal principles against the limited resources or political preferences of elected governments. In such situations, how did these courts respond, and what strategies allowed some to successfully build their legitimacy over time while others faltered, succumbing to political pressure or suffering political backlash?

In Between Possibility and Peril, Chris Kendall explores this dynamic in three states--Colombia, Mexico, and South Africa--in the twenty years following each country’s democratic transition. The case studies reveal a common pattern: what matters most is not international law itself, but a court’s ability to control its procedural environment. Control over these ＂rules of the game＂ allows a court to selectively engage international human rights issues that can enhance its legitimacy and build public support while avoiding those issues likely to put it in direct conflict with hostile political actors. The result is paradoxical--the most successful courts in the long term are those who in the short term often choose to disappoint rights advocates.

Chris Kendall is Associate Professor of Politics and Government at the University of Puget Sound.