In 2001, the Supreme Court of Argentina gave a judgment against Jorge Fontevecchia and Héctor D’Amico for publishing news relating to an unrecognised son of Carlos Menem (the former President of Argentina). The Court decided that the diffusion of news related to the unrecognised son had infringed the right to privacy. That same year, Jorge Fontevecchia and Héctor D’Amico submitted the case to the Inter-American System of Human Rights, arguing that the decision of the Supreme Court had infringed their freedom of speech.
On November 29th of 2011 the Inter-American Court of Human Rights (IACtHR) ruled in the case, ordering Argentina to (i) overrule the judgment that condemned Jorge Fontevecchia and Héctor D’Amico for publishing news related to Carlos Menem’s unrecognized son, (ii) publish a brief summary of the IACtHR’s ruling, and (iii) refund the compensation paid by Jorge Fontevecchia and Héctor D’Amico as previously ordered by the Supreme Court.
However, when this ruling was notified to the Supreme Court to be executed, it denied that the IACtHR had power to overrule its previous judgment, arguing that said judgment has the force of res judicata, and that no court other than the Supreme Court has the power, under the Constitution, to overturn such a judgment.
While the Supreme Court recognized that the decisions of the Inter-American Court issued in contentious cases are –in principle– binding on the State, it stated, however, that this reaches only the decisions issued by the international court “within the frame of its remedial powers”, because it is with that reach that the State has obligated itself by the treaty. In this respect, the Supreme Court insisted on the complementary or subsidiary nature of the international protection of human rights.
This case opens a wide spectrum of possibilities concerning the future of the Inter-American System in Argentina. It raises the question whether Fontevecchia sets a precedent so that the Supreme Court may fail to carry out the instructions of the IACtHR by refusing to overrule any judgment issued by a national court in future.
The spectre of Fontevecchia leads us to the interpretation that cases before the Inter-American System will have no influence in domestic matters as long as the Supreme Court, as head of the judiciary, has issued a ruling with force of res judicata. And since any judgment not subject to appeal has force of res judicata, an extensive interpretation of this case could facilitate other national courts to refuse to abide by the decisions of the Inter-American System.
However, these interpretations do not seem reasonable considering that the Supreme Court has expressly recognised the binding nature of international human rights treaties in several cases and even reiterated the doctrine of the Inter-American Court in its rulings.
The most controversial issue posed by this case is not the given solution itself, but the affirmation that IACtHR rulings are binding only when they are issued by the international court “within the frame of its remedial powers”. The generic term “remedy” is not usual in Argentinean Law, which commonly specifies different protective measures. On the contrary, the IACtHR is known for its wide and flexible granting of remedies, which tend to promote the defence of human rights in various ways. It must be pointed out also, that subsidiarity is not a salient feature of the remedial measures adopted by the IACtHR.
Did the IACtHR exceed its powers when ordering to overrule a Supreme Court judgment? The matter stands in the blurred line of the “sphere of national sovereignty”. It is unclear whether the Supreme Court considered that the IACtHR had gone beyond its complementary jurisdiction, but it did affirm that the attribution of powers granted by the Constitution is a “fundamental principle of Public Law”, and therefore, one that cannot be trumped even by a human rights international treaty.
Subsidiarity provides a mobile framework to allocate the authority to decide over violations of human rights. In the Inter-American System, who has the final word? The European doctrine of the margin of appreciation implies that international courts should grant national authorities a certain degree of deference and respect their discretion on the manner of executing their international law obligations. The margin of appreciation doctrine has not yet been adopted by the IACtHR, but it seems that, in Fontevecchia, for the first time, the Supreme Court of Argentina is arguing for it.
In the specific context of the Inter-American System, this question has received significant attention since Fontevecchia. The definitive solution requires a new perception of subsidiarity and a dynamic approach to national courts in order to promote the protection of human rights.