Operators of international systems for the protection of human rights have not only supported the consideration of international treaties as paradigmatic documents in the labour of constitutional adjudication by national operators, but also sponsored an hermeneutic canon, remarking the importance of taking these instruments within the context of current life.
In this context, the margin of appreciation doctrine is winning an important space in the Inter-American jurisprudence as well as it´s became a central topic in academic dossiers of Latin American countries.
This paper proposes to inquire if this doctrine, as it is in the heart of some of the most important international human rights decisions, may affect the universality of human rights. Or, on the contrary, if this margin prevents courts from imposing unhelpful uniformity, wich may also affect the states´s sovereignty and even human rights itselves.
The margin of appreciation is a well-established doctrine created in the European system of human rights in order to accommodate the diversity and plurality of legal systems, conceptions of justice and existent social particularities.
In Argentina, the idea of applying the margin of appreciation doctrine to mediate between the constitutional and international human right duties and the diverse policies and practices enacted by local authorities has gained currency. However, there are reasons to be skeptic toward this proposal.
On the one hand, it will be argued that the margin of appreciation doctrine has some inherent flaws that makes it unsuitable for importation to other legal systems. On the other hand, it will be argued that the doctrine relies on certain premises and principles that makes it particularly ill-suited for federal states.
This article offers a series of reflections on the role of precedent in constitutional decision making by examining the role that precedents plays in constitutional decision-making in Argentina, one of the Latin American countries that follows most closely the United State model of judicial review, and how the Supreme court in Argentina is affected by earlier decisions on point, particularly in the field of constitutional law. The basic idea is that, in order to give firmness and certainty to the constitutional values enunciated by the highest courts, it is necessary to establish a solid and compulsory body of case-law, or jurisprudence, formed by a continuous link of cases. Because like cases should be decided alike, and following established precedents helps keep the law settled, furthers the rule of law, and promotes both consistency and predictability.
The initial hypothesis of this article is that the doctrine of “Conventionality Control” was built on an incorrect theoretical basis. That doctrine fails to recognize the subsidiary role of the Inter-American bodies in relation to the states that are part of the American Convention on Human Rights.
On the one hand, I will try to demonstrate that the Inter-American Court of Human Rights has established itself as a supranational court, in the manner of the courts that are part of the regional integration system. I will argue that despite this theoretical framework, the Inter-American Court of Human Rights has perceived itself as a supranational body that rules cases without any constitutive limitations.
Finally, I will propose a possible explanation of this phenomenon. In that sense, I will postulate that the Court has built the heart of this problematic doctrine on a first stage of “easy cases”.
Constitutional meanings arise from intense political disputes that societies have maintained over time. From generation to generation, these founding texts provide provisional answers to those great questions on how to live together. However, this way of understanding constitutionalism us far from being accepted. Many academics argue that all political systems should stabilize certain normatvie contents, conceived as a set of ahistorical and pre-political claims that must rule the life of policital communities around the globe. Contrarily, this paper emphasizes that a pivotal feature of our constitutiona life consists in considering citizens as mediate authors in the institutional procedures that define what counts as a just order. The papers warns us that advocating for readings of our Constitution that trigger exorbitant recognitions of normative contents deprived from the value of having communal acceptance, might undermine our capacity to hold us together as a political community.
Since the inception of international environmental law in the 1970s, concern over environmental protection has been expressed in terms of rights. However, there is still no agreement as to who should be considered the holder of this right.
This paper analyzes the reasons for these disagreements. In Section II, I will argue that the difficulties in the recognition of the right to a healthy environment relate directly to the characteristics of the object of this right. In section III, I will defend the view that collective entitlement not only fails to address these difficulties, but also causes new problems of agency, representation and content of the right. In section IV, I analyze these problems and argue that we should avoid the trap of collective rights. I will conclude by pointing out why individual entitlement should be preferred.