Latin American transformative constitutionalism has cut its teeth on violence, social exclusion and weak institutions, i.e. on structural deficiencies that endanger the very fabric of the polity. European constitutionalism is ever more confronted with structural deficiencies, too, but is unsure how to respond to that not least on a conceptual basis. Research from Latin American give some great insights which I will present.
The presentation will focus on the transformative mandate of the Inter-American Commission on Human Rights (IACHR) in establishing human rights standards, compensating national deficits and fomenting a new dynamic of power among social actors. The IACHR can play an important role in strengthening human rights, democracy and the rule of law in the region. The political, institutional and cultural dimensions of the transformative impact of the Inter-American system as well as its limits and potentialities will also be addressed in the process of paving a Latin American transformative constitutionalism.
Today, Colombia is one of the most progressive countries in the world in terms of recognition of LGBTI rights. Several decisions of the Colombian Constitutional Court during the last two decades related to women and LGBTI rights have had significant impacts on domestic law. This is observed, for example, in the prohibition of violence against women, the concepts of feminicide and intersectionality, or the legalization of same-sex marriage and adoption. This is remarkable in consideration of the strong macho culture, the recurrence of violent expressions of homophobia, and the powerful influence that the Catholic Church and the ultra-conservative evangelical churches have on the legislative power (which explains why legal reforms in favor of LGBTI and women's rights often fail). The paper focuses on some landmark Constitutional Court decisions and aims to provide a counterpoint with the conservative backlash against LBGTI people in post-communist Europe.
Central and Eastern Europe experienced a rather swift constitutional transformation thirty years ago. This transformation was characteristically a top to bottom exercise, with constitutional courts playing a decisive role. As political and constitutional systems failed to deliver the results the constituents had hoped for, important parts of the acquis of constitutional transformation were challenged. In the context of the European Union, the appropriate mechanisms of multilevel constitutionalism were sought to remedy the situation. This, however, further exposes the quest for the maintenance of constitutional values to accusations about its elitist nature. I shall argue that multilevel constitutionalism cannot and shall not compensate fully for the backsliding of constitutionalism. Instead, it shall focus on maintaining a functioning democracy in order to enable domestic self-healing processes.
This presentation will discuss the implications of current attacks on regional human rights institutions in Europe and in Latin America for the development of transformative jurisprudence. Both the ECtHR and IACtHR have developed significant lines of transformative jurisprudence, yet, they struggle to implement and maintain those convictions in a climate of increasing pushback. Against this background, I will analyze what the ECtHR might learn from the IACtHR, and attempt to map out a future vision of transformative regional constitutionalism.