This article explores the operation of international transformative constitutionalism in Latin America, and responds to some of the challenges to its legitimacy and effectiveness. To do so, it focuses on the practice of the Inter-American Court of Human Rights (IACtHR). It argues that, in order to understand the IACtHR transformative effect, one should not only consider the compliance of its decisions, but also its wider social impact. The article then describes this wider prism, again through the lens of social practice. This kind of social transformation through law does not go unchallenged. Finally, the paper considers some of the challenges to the Court´s legitimacy, again through the lens of social practice. It reconstructs the IACtHR´s mandate in light of the alleged “ultra-vires” character of some of its decisions, responds to a purported democratic deficit, and shows what guides, frames and constrains the Court, facing the critique that it “runs wild” in its legal reasoning.
The presentation will focus on the transformative mandate of the Inter-American Commission on Human Rights (IACHR) in building resilience in a context of Latin American crisis, in the light of the “Ius Constitutionale Commune”; on the challenge of understanding the most recent regional convulsion (embracing crisis in several countries such as Nicaragua, Equador, Chile and Bolivia); on the special methodology of the IACHR to promptly and timely deal with crisis giving effective and immediate responses at real time; and on the resilience of the IACHR in the exercise of its transformative mandate as an important player in the process of democratization in the Americas, contributing for human rights protection and social change in such a tense, hostile, complex and violent regional landscape.
This paper seeks to present and explore the first advances from the comparative perspective between the contributions of the Ecuadorian and Colombian constitutional courts to the processes of transformation and democratic consolidation. Although there are similarities, my hypothesis is that the considerable differences that can be observed between the courts are due to the way in which the meaning of democracy has been developed in Ecuador and Colombia, which is more procedural in the former and more substantial in the latter.
In recent years, Brazil has faced a serious political and economic crisis, with very negative impacts on citizen's confidence in democracy and institutions. This situation favored the development of authoritarian discourses and contemptuous behaviors concerning human rights. The work proposes to examine the role that the Brazilian Supreme Court can play for the protection of democracy in this context. It is based on three central arguments. Firstly: The Court should develop a “theory of systemic deficits”, with indicators of when the democratic “frontier” has been crossed. Second: In developing this theory, the Court should seek to dialogue with the “Ius Constitutionale Commune” in Latin America, drawing on its experience of protecting democracy in Latin American countries. Finally: The Court should seek to work on its reputation and engage on a dialogue with civil society, other government branches and international actors, so that it can play this role with strong support.