ABSTRACT In their advancement of the third wave of autocratisation, states are cloaking their restrictions on human rights and freedoms with so-called ‘legitimate aims’ to avoid accountability under human rights treaties. One response mechanism available to regional human rights courts in this context is to question the motivation of states through the doctrine of misuse of power. This article examines two bodies of jurisprudence in which this doctrine has been applied: the European Court of Human Rights (ECtHR) judgments against Azerbaijan and Inter-American Court of Human Rights (IACtHR) judgments against Venezuela. The article finds that the ECtHR has applied the doctrine rather restrictively under Article 18 ECHR; meanwhile, the IACtHR has applied the doctrine more broadly and directly under various rights provisions in the ACHR. This challenges the previous parallels drawn in scholarship between Article 18 ECHR and Article 30 ACHR, and further explains why the IACtHR can be more proactive in its detection of misuses of power, identifying ulterior purposes in a broader array of contexts.
Finnerty et al. (Mon,) studied this question.