International human rights institutions, regardless of time or place, have long faced resistance from various governments. It’s no different in the context of the Inter-American Human Rights System (IAHRS). Daniel Ortega’s recent decision to withdraw Nicaragua from the Organization of American States (OAS), and Nayib Bukele’s vocal critique of the Inter-American Commission on Human Rights (IACHR) in El Salvador, serve as a reminder of a lasting trend in the Americas concerning human rights protection: the tendency of many illiberal and populist governments to challenge the authority of international human rights bodies. One movement that clearly illustrates this reality is the backlash against the Inter-American Court of Human Rights (IACtHR) which some populist leaders across Latin America have pushed forward. A recent investigation has identified four cases of backlash against the IACtHR by populist rulers, with some opting to leave the Court and others vocally expressing their discontent.[1]
Drawing upon Cas Mudde’s classical definition of this term, populism is an “ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people.”[2] In Latin America, despite their differences in socioeconomic policy, populist leaders are united by claims that they are fighting corrupt elites on behalf of the people.[3] An enduring feature of Latin American politics, populism has manifested itself under various guises, or so-called “waves”: classical, neoliberal, and radical.[4] From left-leaning figures like Hugo Chavez and Rafael Correa to their right-leaning counterpartssuch as Jair Bolsonaroand the recently-elected Javier Milei, the rhetorical clashes that characterize populism are still present in political discourses.
Defining “backlash” is not an easy task, especially when it comes to international human rights courts. Various forms of resistance from states are observed in this context. Backlash represents a far more drastic attitude than mere criticism or non-compliance.[5] According to Erik Voeten, “a backlash refers to government actions that aim to curb or reverse the authority of an international court. Although a court decision may trigger backlash, a backlash ultimately targets the court rather than just the ruling.”[6] Courtney Hillebrecht identifies four different manifestations of backlash: withdrawals from international human rights and criminal tribunals; advancing alternate or substitute justice mechanisms; imposing financial and bureaucratic restrictions on the courts; and posing doctrinal challenges to the principles on which the tribunals are based.[7] I propose that a useful paradigm for analyzing these dynamics is Albert Hirschman’s classical framework on “exit and voice.”[8] It relates to the reactions of individuals and groups to dissatisfaction within an organization when they perceive a decline in the efficiency of the institution. Borrowing from Hirschman, we can see how three episodes of populist backlash against the IACtHR — Venezuela’s exit, and Bolivia’s and Ecuador’s voice — seem to be examples of these possible reactions to the actors’ perceived deterioration of the international regime.
A challenging case of an exit-type backlash was Venuzuela’s 2012-2013 withdrawal from the Court under Hugo Chavez’s. From the 2002 attempted coup against Chavez until 2012, democratic backsliding progressed alongside increased anti-IAHRS rhetoric in Venezuela.[9] Between 2008 and 2012, several IACtHR rulings triggered the backlash. In September 2012, Venezuela denounced the American Convention of Human Rights. This measure that came into effect the following year, thereby withdrawing the country from the Court. Chavez’s successor, Nicolás Maduro, took it a step further by leaving the OAS and the Commission in 2017. The alleged motives of Chavez and Maduro were similar: forming a justification for backlash against the Inter-American System by left-wing populists. According to most of them, these multilateral institutions were instruments of “American imperialism.” Anti-imperialist discourses were a significant element of Chavez’s foreign policy rhetoric.[10] In 2010, Chávez called the IACHR “ignominious,” “disastrous,” and “a true mafia,” and in 2012, he stated that the IACtHR was “ineffable” and “unworthy of being a human rights tribunal.”[11] Venezuela’s ambassador to the OAS once labeled the court “an instrument of the empire.”[12] From the perspective of Venezuelan leaders, the OAS represented the liberal international order that stood in the way of their Bolivarian revolution.
Other populist governments do not go as far as withdrawal but choose to express their discontent with the regime through the use of voice. Such is the case with Rafael Correa’s Ecuador and Evo Morales’s Bolivia. In June 2012, Morales suggested the elimination of the IACtHR,[13] and in 2013, he compared the IACHR to a “military base.” In 2012, after IACHR cases regarding freedom of speech, Rafael Correa strongly criticized the Commission. He did not want to get rid of the IACHR altogether but aimed to eliminate what he saw as “the last vestiges of neoliberalism and neocolonialism.”[15] At different times, both Morales and Correasuggested the creation of another human rights body in the Americas to replace the traditional OAS-based system. Backlash against the IAHRS is just one of the strategies employed by Chavez, Morales, and Correa; this entire “anti-imperialistic crusade” can be better understood in the broader context of what came to be known as “post-hegemonic regionalism.”[16] This movement represented the attempt of some Latin American governments, not just the populists, to distance themselves from U.S. influence through regional solidarity. This process of trying to set up new institutions to undermine the previous ones is known in international relations literature as “contested multilateralism,” which Julia Morse and Robert Keohane describe as occurring “when coalitions dissatisfied with existing institutions combine threats of exit, voice, and the creation of alternative institutions to pursue policies and practices different from those of existing institutions.”[17]
I argue that understanding the backlash against the IAHRS by these left-wing populist leaders requires examining the alternative project of post-hegemonic regional cooperation they champion. The roles of each actor in the development of this project are fundamental, shedding light on their choices of exit or voice. Another key feature of the “exit and voice” framework is the role of loyalty in defining the actors’ strategies. According to Hirschman, “loyalty holds exit at bay and activates voice.”[18] Therefore, the lower the loyalty toward the institution, the higher the propensity to exit rather than to use voice.
What feature led to Venezuela and Chavez adopting a more aggressive exit strategy? Precisely the “post-hegemonic” and “post-liberal” project of regionalism that had Chavez as a driving force.[19] Consistent with his populist logic, Chavez’s foreign policy was intentionally conflict-oriented, aiming to prompt parties to choose sides.[20] Anything other than a clear stance against “the Empire” could be perceived as a leadership vulnerability. The logic of exit and backlash would be a coherent strategy to set an example for advancing his political project of counterhegemonic regional integration. While Correa and Morales were also part of the project, they played collateral roles. For them, the political and institutional costs of exit outweighed the costs of using voice. Despite their strong vocal criticism, Correa and Morales were not the main advocates for change. Considering the expected interplay of loyalty toward the international regime, Correa and Morales concluded that expressing discontent through voice was their optimal strategy. This approach allowed them to convey dissatisfaction without committing to the higher stakes of exit, especially in a scenario where loyalty was higher than Chavez’s. As materially weaker countries, this “more bark than bite” strategy reflected the reality that Ecuador and Bolivia could not afford to engage in such a conflict. In contrast, Venezuela’s wealth in oil enabled it to challenge the United States more effectively. Venezuela employed its oil policy as a mechanism to counteract the U.S. hegemonic position in Latin America.[21]
In times of recurring backlash and illiberal populism, both from the left and the right, it is fundamental to defend the international human rights system. The bodies of the Inter-American Human Rights System are a crucial force for protecting human rights and defending democracy in the Americas. The impact of the IACtHR extends beyond individual cases, encompassing duties for states to proactively ensure human rights, oversee integral reparations, prevent future violations, and influence national legislation and judicial decisions. This makes it vital for the region’s human rights, democracy, stability, and development. The recent Ortega and Bukele cases serve as reminders that the threats of backlash are still present from both sides of the political spectrum.
Paraphrasing Hillebrecht’s book title, how could we save international justice? Under the “exit, voice, and loyalty” framework, a possible approach would be to promote loyalty toward the regime. Silvia Steininger emphasizes the crucial role of communication practices, particularly through visual media and storytelling techniques.[22] By employing professionalized communication actors, institutions within the Inter-American Human Rights System can elevate social awareness about their work, activating communities of practice and fostering institutional loyalty. Laurence Helfer suggests three additional endurance strategies: playing a long-term game by developing institutional and jurisprudential features for the future; being circumspect in interpretation, choosing battles cautiously to sidestep potential backlashes and safeguard decades of hard-earned achievements; generating opportunities for supporters to mobilize by creating “windows of opportunity” for counter-mobilizations by civil society against the backlashes.[23]The Inter-American Human Rights System has demonstrated various sources of resilience crucial in preserving its integrity against previous backlashes. Populism, an enduring dynamic in Latin American politics, remains a specter that is unlikely to disappear soon. The possibility of backlash is never more than an election away in many cases. Defenders of human rights and the international regime must recognize this reality and draw lessons from past experiences to better safeguard this necessity.
Featured/Headline Image Caption and Citation: Hugo Chávez | Image sourced from Flickr
[1] Erik Voeten, “Populism and Backlashes against International Courts,” Perspectives on Politics 18, no. 2 (2020): 414, https://doi.org/10.1017/s1537592719000975.
[2] Cas Mudde, “The Populist Zeitgeist,” Government and Opposition 39, no. 4 (2004): 543, https://doi.org/10.1111/j.1477-7053.2004.00135.x.
[3] Voeten, “Populism and Backlashes against International Courts,” 411.
[4] Felipe Burbano De Lara, “Populist Waves in Latin America: Continuities, Twists, and Ruptures,” in The Routledge Handbook of Global Populism, ed. Carlos De La Torre (New York: Routledge, 2018), 435.
[5] Wayne Sandholtz, Yining Bei, and Kayla Caldwell, “Backlash and International Human Rights Courts,” in Contracting Human Rights: Crisis, Accountability and Opportunity, ed. Alison Byrsk and Michael Stohl, 2017, 159.
[6] Voeten, “Populism and Backlashes against International Courts,” 408.
[7] Courtney Hillebrecht, Saving the International Justice Regime: Beyond Backlash against International Courts (Cambridge University Press, 2021), 24–25.
[8] Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Harvard University Press, 1970).
[9] Hillebrecht, Saving the International Justice Regime: Beyond Backlash against International Courts, 79–80.
[10] Iñaki Sagarzazu and Cameron G. Thies, “The Foreign Policy Rhetoric of Populism: Chávez, Oil, and Anti-Imperialism,” Political Research Quarterly 72, no. 1 (2019): 205–14, https://doi.org/10.1177/1065912918784212.
[11] Gonzalo Candia, “Regional Human Rights Institutions Struggling against Populism: The Case of Venezuela,” German Law Journal 20, no. 2 (2019): 158-59, https://doi.org/10.1017/glj.2019.10.
[12] Tom Ginsburg, “Political Constraints on International Courts,” in The Oxford Handbook of International Adjudication, ed. Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (Oxford University Press, 2014), 483–502.
[13] Ginsburg, “Political Constraints on International Courts,” 500.
[15] Voeten, “Populism and Backlashes against International Courts,” 417.
[16] Pía Riggirozzi and Diana Tussie, “The Rise of Post-Hegemonic Regionalism in Latin America,” in The Rise of Post-Hegemonic Regionalism: The Case of Latin America, ed. Pía Riggirozzi and Diana Tussie (Springer, 2012), 1–16.
[17] Julia C. Morse and Robert O. Keohane, “Contested Multilateralism,” The Review of International Organizations 9, no. 4 (2014): 385, https://doi.org/10.1007/s11558-014-9188-2.
[18] Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States, 78.
[19] Tom Chodor and Anthea McCarthy-Jones, “Post-Liberal Regionalism in Latin America and the Influence of Hugo Chávez,” Journal of Iberian and Latin American Research 19, no. 2 (2013): 211–12, https://doi.org/10.1080/13260219.2013.853353.
[20] Thomas Legler, “Tectonic Shift: The Chávez Effect on Hemispheric Politics,” in Which Way Latin America? Hemispheric Politics Meets Globalization, ed. Andrew F. Cooper and Jorge Heine (United Nations University Press, 2009), 225.
[21] Sagarzazu and Thies, “The Foreign Policy Rhetoric of Populism: Chávez, Oil, and Anti-Imperialism,” 3.
[22] Silvia Steininger, “Creating Loyalty: Communication Practices in the European and Inter-American Human Rights Regimes,” Global Constitutionalism 11, no. 2 (2022): 189-92 https://doi.org/10.1017/s2045381721000241.
[23] Laurence R. Helfer, “Populism and International Human Rights Law Institutions: A Survival Guide,” in Human Rights in a Time of Populism: Challenges and Responses, ed. Gerald L. Neuman (Cambridge University Press, 2020), 233-242.