Subsidiarity at the Constituent Level

Discussions on subsidiarity and regional human rights law are commonplace. The IACtHR has engaged with these issues since its establishment. In the early 1990s, when national constitutions made human rights law part of domestic law, Latin American constitutional courts became salient players in interpreting human rights norms, giving the IACtHR a prominent role as a regional constitutional court. Not having such power granted by the founding treaties, however, the Court has faced resistance from states. Scholars have studied resistance and pushback, and have offered avenues for reform to make the interaction between the Court and states more amicable. This paper looks at the current process of domestic constitution-making in Chile, which embraces the Court’s position as a sort of regional constitutional court, and discusses whether the exercise of constituent power is a better, more sustainable, bottom-up mechanism for states to engage with international human rights law.