A human rights´ tale of competing narratives explores the different human rights narratives at play within the context of the Inter-American System today. On the one hand, it analyses the universalistic narrative of Ius Constitutionale Commune and, in the other, the less explored story of member states resisting compliance with Inter-American decisions. This paper shows that the prevalence of the unidirectional and institutionalist narrative of Ius Constitutionale Commune may also contribute to the current challenges experienced within the Inter-American System. Member states have rebelled in recent times against this universal approach. However, the Inter-American institutions continue to be nonresponsive to this backlash. This paper argues that rather than treating states as entities to be kept under strict surveillance and mistrust, the Inter-American System should be changed and reimagined through dialogue and a deeper consideration of domestic contexts of member states.
The ICCAL project builds, in large part, on inter-American human rights treaties and their application and interpretation by the main regional human rights organs: the Commission and the Court. Thus, an important part of the critique raised against this project is directed toward the activities of such institutions. In this intervention I will break down some of the points of critique, namely: the nature and extent of anti-state bias on behalf of the Commission and Court (i); the characteristics of resistance and backlash within the inter-American system (ii); supposed lack of responsiveness of the system’s organs toward state contestation; and (iii) how this purportedly has contributed to the challenges faced by the regional human rights system.
ICCLA is portrayed as the common public law of the region that emerges, somehow spontaneously, through judicial dialogue among the Inter-American Court of Human Rights (IACHR) and Latin American national courts. I question this assumption, arguing that it is an academic project centered on a German conception of European constitutionalism (Gemeineuropäisches Verfassungsrecht). For this, I trace the ideological and theoretical genesis of this project until its current manifestations, which reveal more a transregional academic dialogue than a Latin American legal practice. There are, for sure, some features of a regional judicial dialogue. However, I doubt that these reveal a pluralistic conversation. Instead, it seems to denote more a monologue promoted by the IACHR. This, in turn, raises serious doubts about the emergence of ius commune in Latin America.
The constitutionalization of international law and the internationalization of constitutional law are deeply interrelated. It is therefore consistent, from a Latin American perspective, to turn to categories such as “ius commune”, “regionalization”, “Inter- Americanization” or other synonymous terms to describe this process. Some “neo-formalist” concerns have been raised against transformative constitutionalism and its expansive effect on the dissemination of constitutional law in the region. For example: (i) the originality of the idea; (ii) its fostering of judicial activism; (iii) its supposed cherry picking methodology; (iv) the type of judicial dialogue; and (v) the conventionality control doctrine. My intervention in this debate will demonstrate the misunderstanding of the critics and their preconceptions about the transformative constitutionalism that shape the emergence of an original Latin American understanding of public law.