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The Political Effects of Centralizing the International Legal Defense of the State Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 11-2017 To Speak with One Voice: The Political Effects of Centralizing the International Legal Defense of the State Guillermo J. Garcia Sanchez Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Constitutional Law Commons, and the International Law Commons Recommended Citation Guillermo J. Garcia Sanchez, To Speak with One Voice: The Political Effects of Centralizing the International Legal Defense of the State, 34 Ariz. J. Int'l & Comp. L. 557 (2017). Available at: https://scholarship.law.tamu.edu/facscholar/899 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. TO SPEAK WITH ONE VOICE: THE POLITICAL EFFECTS OF CENTRALIZING THE INTERNATIONAL LEGAL DEFENSE OF THE STATE Guillermo J. Garcia Sanchez∗ TABLE OF CONTENTS ABSTRACT ............................................................................................................ 558 I. INTRODUCTION .................................................................................................. 558 II. SPEAKING WITH ONE VOICE BEFORE THE US SUPREME COURT ..................... 564 A. Litigation Strategies to Represent Inter-Branch Interests .......................... 566 1. Defending Congress: Congressional Standing, Amicus Brief, and Private Parties ......................................................................................................... 570 III. POLITICAL EFFECTS OF THE CENTRALIZATION OF THE LEGAL DEFENSE OF GOVERNMENT ACTS ............................................................................................. 573 A. Executives Using Judicial Supremacy to Expand their Powers. ................ 574 B. Adjudication as an Instrument of Political Coalitions ................................ 576 IV. THE INTER-AMERICAN SYSTEM ...................................................................... 580 A. Intro to the Operation of the IACtHR ........................................................ 583 1. The Origins: Sovereignty First. .............................................................. 583 2. The 1969 Structure for a New Political Context: The Rise of Military Coups .................................................................................................................... 587 B. Becoming a Politically Consequential Court at the Domestic Level ......... 591 1. The Influence of US Legal Liberalism in the New Constitutional Landscape .................................................................................................................... 591 2. The Period of Expansion ........................................................................ 595 ∗Associate Professor, Texas A&M University School of Law, S.J.D. Harvard Law School’17, LL.M. Harvard Law School’12, LL.M. in International Law Fletcher School of Law and Diplomacy’ 11, B.A. in Law and B.A. in International Relations ITAM University’ 09. The arguments presented in this paper are part of my Harvard Law School S.J.D. Dissertation. I am grateful to the members of the Georgetown Law Center 2017 Summer Faculty Workshop, to the members of the 2016–2017 Penn Program on Democracy, Citizenship, and Constitutionalism at the University of Pennsylvania, and to my wife Elisa de Anda for their reflections and support. Helpful comments on earlier drafts were also provided by Professors Jack L. Goldsmith, Vicki Jackson, Gabriella Blum, and Mark Tushnet at Harvard Law School; and Professors Robin West, Mike Seidman, Victoria Nourse, Gregory Klass, and Carlos Vazquez at the Georgetown University Law Center. I also want to thank the members of the Georgetown SJD Seminar for their comments and support. All errors are the author’s alone. 558 Arizona Journal of International & Comparative Law Vol. 34, No. 3 2017 V. THE EFFECTS OF THE EXPANSION OF THE IACTHR ON DOMESTIC INTER-BRANCH POLITICS ............................................................................................................... 601 A. From Opposition to Government in Power ................................................ 602 B. Venezuela as a Case of Study: The Caracazo Case .................................... 606 1. The Early Months of Chavez in Power .................................................. 607 2. The Recognition of Responsibility before the IACtHR ......................... 608 C. Chile as a Case of Study: The Last Temptation of Christ Case ................. 610 1. The 1980 Constitution and Transition .................................................... 610 2. The Inter-American Process: Declining to Defend the Decisions of the Judiciary and the Constitution .................................................................... 614 D. Costa Rica as a Case of Study: The Artavia Case Saga ............................. 617 1. The Constitutional Balance of Powers in Costa Rica ............................. 617 2. Human Rights and the Constitutional Order. ......................................... 619 3. The Constitutional Chamber and the Right to Life ................................ 620 4. The Proceedings Before the Inter-American System ............................. 623 5. Imposing an Unconstitutional Executive Decree ................................... 628 VI. LESSONS FROM THE UNITED STATES AND INTER-AMERICAN EXPERIENCE .... 630 VII. CONCLUSION .................................................................................................. 633 ABSTRACT When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch politics. It explores the lessons learned in US constitutional law concerning the role that executive power plays in defending the interests of the federal government before the Supreme Court, and compares them with the experience of Latin American executives in litigating cases before the Inter-American Court of Human Rights (IACtHR). I. INTRODUCTION International judicial proceedings are structured so that governments speak to courts with one voice.1 And in most, if not every state, the executive branch is 1 Section 2 of Article 7 of the Vienna Convention on the Law of Treaties crystalized the custom in international law of assuming that the State is represented by a single voice mostly commonly expressed by the executive power in the form of Heads of State, Heads of To Speak with One Voice 559 this voice. 2 Judicial proceedings typically do not allow other branches or government officials to participate in the process. Yet, the governments of many democracies, just as in the United States, operate under a system of formal separation of powers and independent administrative agencies. State interests are composed of a plethora of agendas formulated by diverse government actors.3 In judicial proceedings the state may still be treated as a unit, but in practice the vast majority of contemporary states are not close to “unitary.”4 Moreover, international courts have moved beyond resolving exclusively inter-state conflicts involving boundary disputes or war-related settlements.5 International judicial proceedings today give individuals standing to bring claims that question the exercise of public power at the domestic level.6 Presidents, legislative bodies, domestic courts, and government agencies take actions that can be considered contrary to international Government, and Ministers of Foreign Affairs. (“In virtue of their functions and without having to produce full powers, the following are considered as representing their State: a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purposes of performing all acts relating to the conclusion of a treaty.”), Vienna Convention on the Law of Treaties, Vienna Convention on the Law of Treaties, art. 7, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention]. See also Mary Ellen O’Connell & Leonore VanderZee, The History of International Adjudication, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 40, 46-60 (Oxford Univ. Press, 1st ed. 2014). When the Permanent Court of International Justice, the first permanent international adjudicative body, was designed in 1920, the rules of its proceedings assumed that when the representative of the state appears before the court he/she would be defending the interest of the “state/nation.” See Karen J. Alter, The Multiplication of International Courts and Tribunals After the End of the Cold War, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 63, 63–87 (Oxford Univ. Press, 1st ed. 2014). The international courts that have followed since then have replicated this general organization of the proceedings. Cesare P.R. Romano, Progress in International
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