This paper explores the “Inter-American legal space” as a metaphor of legal hierarchy, as a social performance, and as geographical representation. It then situates the disciplines of international economic law in it, focusing on the fair and equitable treatment standard of foreign investment law. In this context, the contribution argues that domestic constitutional review is an ideal site to develop a theory of weights that provides a normative criterion to appropriately reconcile investment protection, democracy, and human rights in a framework of transformative constitutionalism.
Latin America is characterized by diversity and its indigenous peoples are no exception: According to the ECLAC, in 2010 around 45 million persons from 826 different indigenous peoples lived in the region. In order to approach the relationship between the protection of human rights in the region and international economic law (IEL), taking into account the different cosmovisions of development from Latin American indigenous peoples becomes crucial. In order to avoid imposing Western interpretations of those rights to such peoples, it is vital to acknowledge the epistemological differences between the mainstream perspective and theirs. The concept of the Ius Constitutionale Commune en América Latina (ICCAL) is particularly useful for this purpose, since it affirms the interconnection of elements from various legal systems in the region. In this regard, an internal dialogue among these different conceptions within ICCAL, and between ICCAL and IEL is arguably needed.
This paper looks at how international standards on business and human rights (B&HR) are beginning to shape national policies and regional human rights law in Latin America. It gives examples taken from national action plans on B&HR that try to implement the UN Guiding Principles on Business and Human Rights (2011), and also considers relevant reports and cases of the Inter-American System of Human Rights, and the impact of the OECD Guidelines for Multinational Enterprises. In doing so, it shows a considerable harmonization of standards, which begin to impact domestic regulation while the presence of binding instruments that embody obligations for companies is only incipient. State obligations on B&HR, however, are clearly defined, although a binding treaty is still far away. Thus, to what extent does the transformation towards increased corporate accountability for human rights violations take place at the international level? To what extent (if at all) does it occur domestically?
The social impact of international financial institutions in Latin America is ambivalent and highly controversial. This Paper engages with the World Bank from the perspective of transformative constitutionalism, as understood by the Ius Constitutionale Commune en América Latina project. It proceeds in three steps. Based on an overview of how the World Bank’s activities in the region have evolved over time, the paper identifies, first, key tensions with the objectives and principles of the aforesaid constitutionalism. Drawing on a public law approach as an analytical framework, it examines, next, key instruments through which the Bank exercises authority and impacts policy-making in relevant areas. On this basis, several options are explored which could reduce the identified tensions and potentially facilitate a rapprochement between the World Bank’s instruments, on the one hand, and the objectives and principles of transformative constitutionalism in the region, on the other.