Against the common understanding under ICCAL, rather than being an obstacle, the principle of subsidiarity can be a tool for a better and more effective protection of human rights. This re-understanding rescues the true meaning of this structural principle: rather than preferring national jurisdictions to international bodies, the principle seeks to find what is the right level of protection. This right level should be determined under flexible criteria to identify the degree of intensity of its application, and States should not have identical treatment. This criteria should include, (i) the political will and legitimacy that the State has given to human rights bodies; (ii) the strength of its domestic institutions -particularly the judicial branch-; (iii) the ability of civil society to influence the decisions of the State; (iv) compliance, and (v) the adequacy and effectiveness of the normative framework to protect human rights.
The paper reviews the literature and work of scholars whose works expressly refer to the term “Ius Constitutionale Commune en América Latina” (ICCAL) and treat it to express their understanding, to link it with other themes or to manifest their critique. Of this study it is possible to affirm three triads that express the meanings, disagreements and challenges from which the notion of ICCAL is accepted, that is to say its use has been generalized, although it is not exempt from criticisms. Thus, the meanings and disagreements converge in understanding ICCAL as a concept that describes the novel doctrinal, jurisdictional and human rights norms contained in different sources of law, which favors the formation of a Latin American common law in a gradual way. As a conclusion, the main challenges for the consolidation of the concept are set out.
This presentation critically examines the concept of Ius Constitutionale Commune Latinoamericanum (ICCAL) as a phenomenon of judicialization of politics at the regional level. To problematize its “common” character and based on the assertion that constitutional law is political, some features of the ICCAL are analyzed: (i) the ideology that inspires it, (ii) the theory in which the concept is supported and (iii) the institutional arrangement that sustains it. Under the understanding that every constitutional project is inextricably linked to an institutional design that carries it out, the commitment to a jury-centered model, anchored in the interpretation that the Inter-American Court of Human Rights makes of the rights recognized as universal is criticized. Proposing, in contrast, a sense of the common according to which the system is based on deliberative and egalitarian procedures that can strengthen the democratization of the region.
My intervention will analyze some of the most significant developments in the case law of the Inter-American Court since the entry into force of the American Convention. Therefore, I will focus on the gross and systematic violations of fundamental rights in relation to the idea of transformative constitutionalism in the region. The role of the Court's work in interpreting the content and scope of the obligation to guarantee the rights established in the Convention has changed and nowadays is transformative for the region. However, the task of building up democracy, the rule of law and human rights values in the states of the region is still far from complete.