The Inter-American Human Rights System contributes with the formation of an Ius Constitutionale Commune (ICC), in which national and supranational Courts exchange judicial reasoning in vertical-horizontal dialogues. Progress has been made, but some national systems have shown resistance to comprehend human rights adjudication as a common endeavor. This essay intents to propose a cooperative judicial dialogue in order to consolidate the ICC, so every jurisdiction plays a significant role, opening channels to transform a history of massive human rights violations into a fairer social reality. Such cooperative interaction is fundamental, for the conformation of a multilevel legal system relies on a two-way argumentative interchange in human rights adjudication. Therefore, the Inter-American Court strengthen its authority by being attentive to local particularities, and Constitutional Courts gain regional support to embrace a transformative agenda towards human rights defense.
Latin-American States are facing democratic challenges: has been witnessing the collapse of democratic institutions in many of its countries. When democracy is in danger, because of their bond, human rights are also in risk and courts should play an active role of resistance. Dialogues can hold setbacks in the human rights field. In this sense, this essay aims to investigate how judicial dialogues can prevent and reverse authoritarian tendencies and, thus, contribute to the strengthening of democracy in Latin America. The Inter-American Court of Human Rights (IACtHR) holds a prominent position in this task since it establishes minimum standards that must be observed by the States subject to its jurisdiction. Because national courts tend to disregard international parameters in moments when democracy is overlooked, these interactions with international courts appear to be relevant means to preserve the rule of law and guarantee the protection of human rights.
We propose a dialogue between the Inter-American Court of Human Rights (IACHR) and the European Court of Human Rights (ECHR), based on the idea of “ius commune universal”: a shared and inalienable nucleus of human rights, that shall be turned into concrete practice by the jurisprudence of these courts. The proposed dialogue will focus on the right to cultural identity of indigenous peoples. We demonstrate that the IACHR recognized this right as a collective right, which must be respected in a multicultural and democratic society. We also show that the ECHR recognizes the “cultural rights” of minorities, but with a weaker scope and a wide margin of national appreciation. Based on the jurisprudence of both courts, we propose a move towards a “Euro-American fundamental rights” system, including the fundamental right to cultural identity.
Fundamental human rights would have been the result of the political and legal setting of modernity, which did not take into account the existence of subjects other than the ideal and abstract individual, other knowledge and other forms of structuring power. It is in this perspective that, with the help of the historical-dialectical method and using bibliographical research, it is intended to deepen the knowledge about the decolonial critical view of human rights in order to throw light on the obscure dimension of coloniality concealed by modern hegemonic thinking. The decolonial perspective, by pointing to the unfolding of the domination of the non-European “other” and the universality of Eurocentrism as a way of being, of knowledge and power, can show the inconsistencies of the prevailing understanding of human rights and its low effectiveness.
In addition to the strengthening of judicial review and the judicialization of politics in countries of the Global South, in the current Brazilian political-institutional crisis, there is also the judicialization of the “megapolitics” as an instrument of the elites to insulate central issues of democratic control, leading to a new kind of political order, called by Hirschl (2008) of “juristocracy”. South Africa is also an example of this more extreme aspect of the judicialization, but its Court enhances a dialogical atmosphere for the design of public policies, with the prior engagement of those interested in seeking solutions, even shared among the Powers. Thus, through a comparative study, especially of the “meaningful engagement” and the “general restrictions clause”, it is analyzed how dialogic mechanisms can contribute to overcoming the political-institutional crisis in Brazil.