The Great Promise of Comparative Public Law for Latin America
The Great Promise of Comparative Public Law for Latin America
Toward Ius Commune Americanum?
Abstract and Keywords
This chapter analyzes “ius constitutionale commune in Latin America” (ICCLA) in light of comparative international law. For the proponents of ICCLA, this represents a common public law of the region that emerges through judicial dialogue among the Inter-American Court of Human Rights (IACHR) and Latin American national courts. This chapter questions this assumption, first by focusing on the ideological and theoretical genesis of this project, which is the product of a trans-regional academic discourse centered on a German conception of European constitutionalism (Gemeineuropäisches Verfassungsrecht). Next, it addresses the main features of the regional judicial dialogue, considering whether it truly reveals a pluralistic conversation, or instead denotes a monologue promoted by the IACHR. It argues that the latter comes closer to the truth, a conclusion that leads to a reconsideration of the pluralistic narrative about ICCLA. This, in turn, raises serious doubts about the emergence of ius commune in Latin America.
Keywords: Ius constitutionale commune, Latin America, Gemeineuropäisches Verfassungsrecht, IACtHR, national courts, trans-regional academic discourse, regional judicial dialogue, common public law, pluralism
Notions of “Latin American international law” can be traced to the struggle for independence from the Spanish and Portuguese crowns, to the ideas of men such as Simón Bolivar and José de San Martín,1 and to doctrines such as uti possidetis.2 They have reappeared from time to time, importantly including Alejandro Álvarez’s vision of le droit international américain,3 and the role that the great (p.502) codification projects of the region played in this regard, both in public and private international law.4
Another evolution that has much contributed to the region’s perception and approach to international law is the Inter-American human rights system. The early years of the long construction of this system (from the late 1940s to the early 1970s) raised the hope of enhanced cooperation among Latin American states. César Sepúlveda, one of the intellectual architects, asserted that the states of the region conceived of common protection of human rights as a vehicle for consolidating democracies, and hence as a means of guaranteeing their peaceful coexistence and fostering their cooperation.5
Today, Inter-American human rights law has become the inspiration for a new grand legal project in the region: “ius constitutionale commune in Latin America” (ICCLA), sometimes also referred to as “ius commune americanum.” Based on the axiom of the protection of fundamental rights of the inhabitants of the region, ICCLA may be seen as a continuation of the ideas expressed by Sepúlveda more than three decades earlier. However, ICCLA differs from those ideas in important ways. Sepúlveda played a pioneering role in the region in promoting the status of the individual in international law and had a clear Latin American vocation. But he also was a generalist who believed in the legitimacy of one universal international law. So, although he praised the practical (better protection) and aspirational (stronger cooperation among democracies) virtues of the regional human rights system, he did not advocate a common law of the Americas.6
Unlike earlier approaches to international law in Latin America, the impetus for ICCLA comes from constitutionalists who have embraced the internationalization of their field and merged it with international human rights law, not from international lawyers. What one might regard as a manifestation of “the increased penetration of international law into the domestic realm”7 is, at the same time, an interesting (p.503) case of the increasing penetration of constitutional law into the international realm. Although proponents of ICCLA argue that it does not represent a regional version of international law, they do assert that the project is about the protection of fundamental rights, importantly including those of an international origin. According to them, a common public law of the region is emerging through an increased regional judicial dialogue centered on the jurisprudence of an international tribunal, namely the Inter-American Court of Human Rights in San José, Costa Rica (IACHR, or San José Court).8 Thus, this conception of public law merges national constitutional and international law.9
The aim of this chapter is to analyze ICCLA in light of comparative international law. Even conceding that ICCLA is something other than a regional version of international law, its vernacular stems, at least in part, from a particular approach to international law based on human dignity or, in Inter-American parlance, on “the oneness of the human family.”10 This influence may have important consequences for the way international law is conceived and applied within the region. Although the literature on ICCLA does not focus on international law as such, surfacing its approach to international law lies at the core of comparative international law’s research agenda.11 More importantly, comparative international law invites us to inquire into the promises and perils of such a particular approach.12 Is ICCLA augmenting the fragmentation of international law, or does it contribute to making international law more international by providing Latin American jurists with a powerful conceptual framework for making their version of international law heard on the global plane?13 Even if one wishes to avoid normative assertions on whether this Latin American approach to international law should be discouraged or encouraged,14 one must confront the conception of international law that underlies the ICCLA project. As will be argued in the following sections, ICCLA entails a conception of law in (p.504) a time of globalization and pluralism that affects the very notion of “international law.” It envisions an emerging Latin American law that shares the larger aspiration of a global public law.
ICCLA has been constructed at two fronts: the academic (or discursive), and the judicial (or operative). Both are part of the same enterprise, and it is impossible to grasp one without the other: the legal philosophy underlying the legal work, and the legal work backing up the legal philosophy. However, methodologically it is best to address them separately. Therefore, I will first describe the ideological and theoretical genesis of this project, which is the product of a trans-regional academic dialogue. It is highly interesting indeed that ICCLA is nurtured by a comparison, at the macro level so to speak, to a German conception of European constitutionalism: Gemeineuropäisches Verfassungsrecht (common European constitutional law).15 This raises the question about the character of ICCLA as a Latin American project inasmuch as its vernacular incorporates a foreign grammar. So understood, ICCLA would join the list of previous Latin American law projects that, as Liliana Obregón observes, construct their identity as regional particularism with European roots and ideals in mind.16
But this observation would miss the mark if the legal literature that promotes ICCLA was correct in asserting that a dynamic and pluralistic intra-regional judicial dialogue involving a cross-fertilization of national courts and the San José tribunal provides the basis for this project. Therefore I next will address the main features of this judicial dialogue, considering whether it truly reveals a pluralistic conversation of national and regional actors, or instead denotes a monologue promoted by an international tribunal. I argue that the latter comes closer to the truth, a conclusion that leads to a reconsideration of the pluralistic narrative about ICCLA. This conclusion raises serious doubts about the emergence of a ius commune in Latin America, with which I will deal in my concluding remarks.
II. Ius constitutionale commune in Latin America (ICCLA) and Gemeineuropäisches Verfassungsrecht: We Are All Naturalists Now
The contemporary constitutionalist framing of law in Latin America has its historical background in the advent of new liberal constitutions and constitutional reforms breaking with authoritarian regimes in the region. This evolution began (p.505) in the mid-1980s and continued up to Mexico’s human rights reform in 2011.17 A common feature of these new constitutions and constitutional reforms is the strengthening of the catalogue of fundamental rights and their means of protection, importantly including international human rights law. Thus openness toward international law by domestic legal systems has been one of the major characteristics of these constitutional transformations.18 Drawing inspiration from these changes in Latin American political systems, constitutionalists from across the region have embraced and promoted a version of the rule of law that can be characterized as a “constitutional Rechtsstaat” (“Estado constitucional de derecho”).19 This version rests on the idea of a legal order that functions for and around the protection of fundamental rights as recognized by the constitution. The judicial function occupies a pivotal position in the construction of this idea of the rule of law. This focus is further strengthened by a profound disappointment in various countries in the region with their executive and legislative branches.
This placing of hope in courts, especially in the highest and constitutional tribunals, has led to a belief that the better way to secure protection of rights entails creative legal interpretation and ponderation of principles, as opposed to strict law application.20 The approaches of national courts in other regions, especially the German Federal Constitutional Court with its emphasis on the principle of proportionality (Verhältnismäβigkeitsprinzip), have decisively influenced the articulation of this legal discourse, which describes itself as “Latin American neo-constitutionalism.”21 A look at the authors whose theories and theses have nurtured the conceptual framework of Latin American neo-constitutionalism reveals a predominantly European orientation.22
(p.506) Fundamental to Latin American neo-constitutionalism is a cosmopolitan idea of law. Because basic rights are viewed as shared values beyond borders (a common culture), the constitutional state is seen as participating in a constitution of rights that transcends the sphere of the national constitution’s formal validity. This transnational participation is said to have two aspects: the openness of the national legal system toward international human rights law, in particular the Inter-American human rights system, and the engagement of national judiciaries in the construction of a common law of the region (ius commune latinoamericanum) based on the premises of neo-constitutionalism.23
It is not quite clear when the discourse of Latin American neo-constitutionalism merged with that of ICCLA. One might say that, as the former gained ground across the region,24 the consolidation of a ius commune in human rights and constitutional principles became the new aspiration of neo-constitutionalists. The theories of Peter Häberle, a German public lawyer and comparatist, on the constitutional state (Verfassungsstaat) and culture have been highly influential in the articulation of this Latin American legal discourse.25 He coined the term “ius commune americanum.”26 In an essay written for a congress in Mexico in 2001, he asked the question whether the notion of a common European constitutional law (“Gemeineuropäisches Verfassungsrecht”) can be applied to America, focusing on Latin America. He first referred to the basic elements of Gemeineuropäisches Verfassungsrecht that he elaborated in a 1991 essay of the same title and further developed in his 2001 monograph on European constitutional theory.27 Starting with the notion of a European legal culture expressed historically in a ius commune europaeum in private law that was revitalized through European private international law, Häberle traced the commonality of fundamental rule-of-law principles across national constitutions in Europe, as well as those expressed in European law stricto sensu (European Union law) and lato sensu (that of the Council of Europe and the Organization for Security and Cooperation in Europe (OSCE)). He argued that these principles permit the (p.507) identification of a pan-European constitutional culture. Importantly, he asserted that to extrapolate from the common constitutional culture to the common constitutional law, there must exist a shared interpretive approach, in which courts across Europe (national courts and the regional tribunals in Strasbourg and Luxembourg) use the comparative method for identifying the similarities that will consolidate this corpus iuris.
In his Mexican essay, Häberle considered whether the “European model” can be transplanted into Latin America. He maintained that it could, based on what he called “the contours of a Latin American identity.”28 This identity is expressed, according to the Bayreuth professor, in those constitutional clauses that refer to regional integration or regional solidarity, as well as by the common frame of reference that these constitutional orders have in the Inter-American human rights system, concretely in the 1969 American Convention on Human Rights (ACHR) and the jurisprudence of the IACHR. He stated that this “Court, together with its jurisprudence, form a partial constitution in the frame of the common constitutional American law.”29 Just as Gemeineuropäisches Verfassungsrecht was a project to be built based on a shared legal heritage and common constitutional principles, his 2001 essay offered a manifesto for the construction of ius commune americanum.
Latin American neo-constitutionalists have taken up this manifesto. Legal scholars, judges, and academic institutions closely related to their constitutional elites (part of these elites) as well as to the Inter-American human rights system (often the very same professional circle) have promoted this legal discourse intensively in recent years. Prominent universities in Colombia (e.g., Los Andes, Externado) and the Legal Research Institute of the National Autonomous University of Mexico (IIJ-UNAM), as well as its daughter organization, the Ibero-American Institute of Constitutional Law, are the protagonists, together with Heidelberg’s Max-Planck Institute for Comparative Public Law and International Law.30 A series of publications have appeared in recent years, emerging from several conferences organized by some of the above-mentioned academic institutions, along with some of the constitutional and highest courts of the region and the IACHR.31 This transnational (p.508) partnership indicates, as I have argued elsewhere, that ICCLA is evidence of “law as profession,”32 that is, of a project of influential Latin American constitutionalists (scholars and judges) who, as globalization advances, have come to embrace the internationalization of their field, as well as European international lawyers with a (German) constitutionalist and comparatist mindset.33
Curiously, the contemporary literature on ICCLA is rather oblivious to Häberle’s arguments. Yet it restates the same elements and prospects, taking the same European model as its reference.34 Moreover, theses on the judicial function that have built on Häberle’s pan-European constitutionalism, such as the multilevel game of adjudication according to which a mutually reinforcing transeuropean communicative process of rights protection reinforces constitutional justice,35 are transplanted into the Latin American context by making the obvious analogies between the European and Inter-American human rights systems, as well as between the constitutional courts and highest tribunals of the member states of these regional systems. A possible explanation for the literature’s neglect of Häberle’s theses on the universal character of Europe’s constitutional culture, capable of fostering similar developments in other regions, is an intention to change perceptions. ICCLA’s discourse successfully evokes a move in the layers of comparison from the European to the global model of cosmopolitan constitutionalism. Accordingly, ius commune latinoamericanum gives the impression of resembling Gemeineuropäisches Verfassungsrecht (or ius publicum europaeum) while having global constitutionalism as the shared ideal, or tertium comparationis.36 (p.509) But when one looks more closely at the striking similarities between the methods and goals of ICCLA and Gemeineuropäisches Verfassungsrecht, this move in the layers of comparison appears to be rather cosmetic; ius constitutionale commune latinoamericanum is still predominantly informed by a German ideal of European constitutionalism.
As mentioned above, ICCLA assigns a pivotal role to judicial dialogue. According to this narrative, the emerging law in Latin America is not hierarchical, unfolding from the international (or regional) to the national levels, but rather develops dynamically and horizontally. At the same time, the San José Court, as a regional court concerned with the human rights of all the inhabitants of the region, is seen within this narrative as providing the general framework. No less important, its jurisprudence is regarded as a conceptual apparatus, an axiomatic one, because of the progressive imprint it has acquired over the years—“progressive” in the sense of providing an expansively evolving interpretation of the protection of human dignity. This assumption is based on a normative postulate of how law in Latin American should evolve constructively and interactionally, based on a Habermasian ideal of reciprocal communicative processes.37 Having no room for legal formalism, it instead recalls the neo-natural thinking of A.A. Cançado Trindade and Häberle. Anti-formalism is not only the Leitmotif of the new law in Latin America38 but also of great operational value. It facilitates the flexible use by national courts of comparisons and legal transplants. These courts are called upon to embrace a cosmopolitan constitutionalism, according to which the ideal constitution is one open to a conception of global public law that blurs the boundaries between international (human rights) law and national (constitutional) law. It represents the simultaneous internationalization of constitutional law and the constitutionalization of international law.39
However, as I argue in the following section, a closer look at these judicial interactions reveals not so much a pluralistic dialogue but more of a monologue driven by an international tribunal. Instead of a reciprocal communicative process through which similarities across nations are identified via the comparative method, one can observe a unidirectional and hegemonic discourse at the service of the San José Court. Somewhat ironically, this unfolds in a rather monist fashion. The structure of this discourse has important consequences for the law and politics of ICCLA, as well as for comparative international law.
Is ICCLA capable of transcending its academic ethos and the elite network of legal professionals involved in it? Are Latin American judiciaries embracing global public law and thereby doing away with old categories defining the relationship between national and international law? Or is a new sort of monism emerging in the region? What does this mean for the relation between comparative international law and comparative constitutional law? Are ICCLA, and global public law more (p.510) broadly, also blurring the lines between both research fields? I believe these questions are interrelated and address them in my concluding remarks.
III. ICCLA in Legal Practice: the Regional Judicial Dialogue
The transitions from authoritarian regimes (whether formal dictatorships or not) to democracies across Latin America made the independence of the judiciaries in many of these countries possible, and transformed most of the constitutional and highest courts in the region into key players within their sociopolitical environments. A critical aspect of this renewed judicial role is the openness of these domestic courts toward international law, and Inter-American human rights law in particular. Some of these courts have conceived of the ACHR and other treaties in this regime as part of their domestic constitutional law. This conception extends to the jurisprudence of the IACHR. These developments form the framework for the intra-regional judicial dialogue that is said to prove the emergence of ICCLA beyond legal doctrine. In the words of Armin von Bogdandy: “[t]he existence of a Ius Constitutionale Commune becomes most palpable in the interaction of domestic authorities with the Inter-American Court.”40
A. Vertical Dialogue: The San José Court as a Supranational Constitutional Court
Transnational judicial communication in the region is strongly inspired and promoted by the IACHR, and its expansive, at times even intrusive jurisprudence.41 Commentators, as well as Inter-American judges, describe this tribunal as a supranational constitutional court of the region.42 This suggests a vertical dialogue, that is, from international courts to national ones.
The point of departure for this dialogue is the Barrios Altos decision of 2001. The IACHR declared that the Peruvian amnesty laws adopted during the Fujimori (p.511) era had no legal effect.43 Later it explained the “generic effects” of this declaration of invalidity, that is, beyond that particular case.44 The court then asserted the doctrine of “conventionality control,” both in its “centralized” and “diffused” versions.45 Following Barrios Altos, “centralized conventionality control” means that the regional court exercises judicial review of domestic norms not only by verifying the compatibility of those norms with the ACHR and other treaties of the system, but by invalidating them whenever deemed contrary to these international agreements.46 “Diffused conventionality control” is the duty that the regional court seeks to impose on national courts not to apply domestic laws contrary to the various applicable treaties. To perform this task, national judges are required not only to take into account the treaty texts but also the jurisprudence of the San José Court as “the ultimate interpreter of the American Convention.”47
National courts in Latin America have been very receptive to this mandate.48 A decision of Mexico’s Supreme Court from 2013 illustrates this. It declared that all domestic judges are bound by the jurisprudence of the IACHR in cases involving Inter-American human rights (actually the whole corpus of international human rights, as those not formally part of the regional system are usually interpreted according to the latter),49 including cases to which Mexico was not a (p.512) party.50 Eduardo Ferrer Mac-Gregor, who has become one of the most prominent supporters of ICCLA, both in academia and as a judge of the IACHR, emphasizes the role of the doctrine of conventionality control in the construction of ius commune:
We are definitely transiting to an “integrated Inter-American System”—with a dynamic and complementary “conventionality control”—which is progressively constructing an authentic Ius Constitutionale Commune Americanum as a substantive and indissoluble core, which preserves and guarantees the human dignity of the inhabitants of the region.51
Accordingly, ICCLA can be described as a highly centralized, unidirectional judicial construction in which the IACHR functions as a sort of supranational guardian of the regional constitution of rights. In this sense, René Urueña has observed that “Inter-American constitutionalism is less an exercise of ‘comparative international law’, than an integrated hierarchical system of norms that are enforced by both international and domestic tribunals.”52
However, one could describe this relationship as an instance of comparative international law occurring through vertical dialogue, by means of which the IACHR develops a common regional approach to international law. But one should consider whether there are other, emerging, less obvious features of this communication process that could support the pluralistic dialogue described by the ICCLA literature.
Even if regarded as a top-down dialogue—what has been criticized as being rather a monologue53—the double role of national courts means that these are not exclusively applying Inter-American law as understood by the IACHR, but also contributing to regional practice.54 Their decisions eventually may reach an agreement on the interpretation of some particular international norm and thus qualify as subsequent practice within the meaning of Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties.55 But the Inter-American human rights (p.513) discourse mostly has neglected state consent, because it is associated with “state voluntarism” and perceived as contrary to the dynamic nature of human rights treaties, as well as to the structural transformations of public law in the era of globalization.
However, it is important to distinguish between a narrow unidirectional discourse, on the one hand, and the possibilities for judicial dialogue resting on the law of treaties and explained by comparative international law (e.g., the explanation of the dual function of national courts), on the other. Commentators on the Inter-American system who tend to analyze this regime from a generalist perspective, that is, one informed by general international law that takes the law of treaties better into account, insist on the importance of building regional consent, and highlight the role of national courts as state actors in this regard.56 Yet subsequent state practice plays little or no role in the jurisprudence of the IACHR or in decisions of Latin American national courts interpreting human rights treaties. Domestic courts in the region do not seem to be very aware of their potential to create state practice within the terms of general international law.
B. An Emerging Mixed Dialogue?
One must note recent developments in judicial communication in Latin America that call for reconsidering the vertical and unidirectional character of this dialogue. In this section, I argue that these developments remain informed by the very same premises of the top-down dialogue, and hence can be seen as a strategy for advancing the overarching narrative of ICCLA centered on and spurred by the San José Court.
It is true that the conventionality control promoted by the IACHR, in its “diffused” version, has prompted a more active engagement of national judges in revising domestic norms’ conformity with Inter-American law. Not surprisingly, this has led to more national interpretations of the American Convention, which now form part of the intra-regional dialogue. As one commentator mentions, the Court in San José “already uses comparative Latin American law as an interpretative tool of the Convention.”57 In addition, the strong stance of some national courts as champions of human dignity that adjusts to the reality of underdevelopment,58 in particular the (p.514) Colombian Constitutional Court, further suggests that Inter-American judicial dialogue is not a one-way street anymore. Accordingly, an important building block of ius commune might consist of a “mixed dialogue,” following Anne-Marie Slaughter’s early typology of transjudicial communication.59 This dialogue would consist of references from national-to-regional-to-national jurisdictions.
The same author who highlights the use of “comparative Latin American law” by the IACHR, however, correctly points out that the San José Court usually cites only those judgments of Latin American national courts that fit all too well into its own position and that it reveals no methodology to explain these cross-references. The practice clearly suggests cherry-picking according to its own interpretive preferences.60 Furthermore, a genuine pluralistic conversation in which national and regional judges came together in a network of communication on an equal footing, so to speak, would only prove to be the case if national-to-national judicial dialogue also occurred whenever the advancement of human dignity is at stake and involved the interpretation of international human rights law and related rights. Particularly interesting would be a scenario where a common understanding of Inter-American human rights law, or even of universal human rights law, would develop through cross-references among national courts of the region without evoking the San José jurisprudence. Of course, whenever national courts construe a norm of the American Convention following the case law of the IACHR that itself resorted to national judgments, an indirect national-to-national dialogue would take place, and arguably a mixed one would come to the forefront. But this would still be too much centered, in substance, on the jurisprudence of the IACHR. Instances of interpretation of international human rights law by national courts of the region referring to readings of their peers of exactly the same normative hypothesis are practically nonexistent.61
There are other means through which national courts in the region communicate. Although these represent indirect venues of judicial communication, they can prove to be very effective in the promotion of a mixed dialogue. First, there is what can be called “informal dialogue,” that is, the sharing of information and best judicial practices, as well as the cross-fertilization of judicial and legal cultures through a series of workshops and conferences, publications, and online promotion. The goal of this informal dialogue is to promote a common understanding and interpretive approach to international (human rights) law. These symposia usually involve the judges and their staff from some of the constitutional and highest courts of the (p.515) region, as well as prominent legal scholars, and have become common practice in recent years. The Ibero-American Institute of Constitutional Law plays a leading role in the promotion of this informal dialogue, and its importance for ICCLA is widely acknowledged.62
Second and partly as a result of the activities described above, horizontal judicial communication in Latin America has turned to method. Indeed, what most of the national courts in the region share when it comes to interpreting international human rights law are the means of doing it. They may not quote from each other on the specific reading of this or that norm of the American Convention, but they mimic the interpretive cannons and techniques they use.
These are conventionality control, the pro homine or pro persona principle of interpretation, and the judicial doctrine of bloque de constitucionalidad (“constitutional bloc” or “bloc de constitutionnalité,” as it has its origin in the French Conseil Constitutionnel). Conventionality control and the pro homine maxim have both emerged from the Inter-American jurisprudence. As discussed above, conventionality control presupposes in its diffused version that national judges supervise the conformity of national law with the ACHR and other treaties of the system. In certain instances, the regional Court has even demanded that in case of contradiction, the national law should be declared void.63 The pro homine or pro persona principle basically states that the most favorable interpretation to the “human person” is to be preferred, enabling the judge to construe the widest expression of the (human) right at hand. It has been used by the IACHR since its earliest decisions and constantly over the years. It is based on Article 29 of the ACHR, that is, the prohibition of restrictive interpretation. The philosophy underpinning this method is informed by a strong distrust of “state voluntarism,” thus shifting the paradigm to human dignity, and favoring dynamic and expansive interpretations of international human rights law. This philosophy of legal interpretation has been most clearly articulated by Cançado Trindade, both in his academic writings and in his vast body of individual opinions as former judge and president of the Inter-American tribunal.64 The doctrine of bloque de constitucionalidad, on its part, is the only one of (p.516) these methods developed by a national court, namely the Constitutional Court in Bogotá.65 According to it, human rights and related principles that are not expressly established in the national constitution are to be integrated into it, whenever they are relevant for concrete instances of constitutional control or judicial review.66
These methods are shared by many Latin American national courts, which have been very much engaged in their promotion, including through the sort of informal dialogue described above. It is also important to mention that there exists a trend of merging all these principles and doctrines into a new rights paradigm of constitutional justice.67 This has been the case of Colombia’s Constitutional Court. Its guiding principle in the building of “constitutional blocs” has been the so-called “favorability clause,” which is just a different name for the pro persona principle, again conceived as a proper means of exercising conventionality control.68 Very similarly, Mexico’s Supreme Court has declared that conventionality control can be properly exercised by national judges only if they simultaneously engage in control of constitutionality, guided by pro persona, and that the means of analysis for such a control consists of the following constitutional bloc: fundamental rights of the Mexican Constitution and the relevant jurisprudence of federal tribunals, the human rights contained in treaties to which Mexico is a party, and the jurisprudence (p.517) of the San José Court, including those guiding principles established in cases to which Mexico was not a party to the dispute.69
Once these broader dimensions of judicial dialogue are taken into account, it is not difficult to see that a common (or at least widely shared) method of interpretation is emerging from horizontal communication processes among national courts in the region. This indeed is the most distinctive sign of Latin American trans-judicial processes: a mixed dialogue consisting of the combination of a (classical) vertical communication between an international tribunal and domestic courts and a horizontal dialogue among the latter, which emerges indirectly but solidly through informal platforms and the mimesis of method. Mimesis of method has even greater potential for construing common interpretations of international legal norms, as it does not depend on a case-by-case citation of foreign court decisions. It can be built systemically through a shared understanding of how international law should be approached.
Some commentators regard these developments as indicating the need for more diversity within the Inter-American human rights regime, and call for a new integrationist paradigm in which both the San José and national courts should engage in a true dialogue, rather than a monologue.70 For others, the new panorama already reflects this diversity, which must be acknowledged as a “dynamic evolution game” of a broader Inter-American community of participants, leaving constitutionalists and hierarchical mindsets behind.71
These proposals and readings have some force. However, I am less optimistic for the following reasons. First, the dialogue may be explained as a mixed one from an institutional perspective, but it is still heavily centered on San José jurisprudence when it comes to substance. Conventionality control is precisely about regional homogeneity—if not uniformity—in the interpretation and progressivity of fundamental rights as understood by the IACHR. Just as with conventionality control, pro persona has a clear Inter-American identity. Although it is possible to find the most favorable interpretation of a right in the national constitution and its autochthonous elucidation, pro persona is attached to the idea of a universal and holistic human rights law best represented by an international tribunal, but one that understands the idiosyncrasies of the region.72 The IACHR has successfully built over the years a reputation as the ultimate guarantor of the human rights of the inhabitants of the region, and its international character endows it with a high degree of legitimacy precisely because it is perceived as detached from national political (p.518) vices—something that matters even more in a region where the traditional national political actors, that is, the executives and legislatives (including political parties), are so profoundly discredited. Accordingly, pro persona is clearly inclined in favor of Inter-American law as interpreted and developed by the regional court. As to the bloque constitucional, this doctrine does not only entail the other two methods, but it is also a means for opening national constitutions. For the same reasons as with pro persona, the bloque becomes a perfect entry point for the regional system, thus functioning as a sort of widely open-textured integration clause determined and redetermined each time by national judges guided by Inter-American jurisprudence.
Hence, the uses of these methods of interpretation by Latin American national courts tend to consolidate the role of the IACHR as a sort of supranational constitutional court. And this relates to the second obstacle to an optimistic reading of these trans-judicial developments. It is difficult to conceive this as a “dynamic and evolutive game” of several stakeholders when the conversations are the result of an intermediated process. Anne-Marie Slaughter observes that “intermediate dialogue” takes place when national courts communicate with each other, but another institution “effectively brokers” the communication. Her examples deal with the Strasbourg and Luxembourg courts, which sort of direct the dialogue among the domestic courts of the states parties to the European Convention on Human Rights and Fundamental Freedoms and of the member states of the European Union.73 This 20-year-old typology of the European judicial landscape fits clearly into the present Latin American scenario, where national courts have become interlocutors in the Inter-American judicial dialogue, but in a way which is still very much orchestrated in San José. Moreover, this dialogue augments the standing of the regional tribunal. It serves to disseminate important ideas and values that have distinguished the IACHR over the years, thus fostering its rationale. In this sense, Slaughter’s observation that intermediate dialogue is also about the overarching court “self-consciously undertaking this dissemination”74 also applies to the Inter-American context, and it is important as it is useful for demystifying the pluralistic narrative that underlines ICCLA.
But what does this mean exactly for the grand project of ius constitutionale commune in Latin America? In the end, one might say that the role of a strong regional tribunal in triggering the advancement of the rule of law in the region cannot but be a welcome development, never mind that its own powers are considerably extended along the way. But this argument does not hold water. First, the improvement of the rule of law in the countries of the region as a consequence of a monologue orchestrated by the San José Court is itself contestable. Second, the insistence of the ICCLA discourse on pluralism is crucial for its own legitimacy, as it couples this project with the “structural transformation of public law” at the global level.75 So, if (p.519) pluralism falls out as a convincing narrative for ICCLA, the normative project loses much of its force and legitimation as the product of comparative public law in the region.
These two problems are part of what I referred to above as the law and politics of ICCLA, as well as the interrelated question of the relationship between this project and international law. This also touches upon the relation between comparative international law and comparative constitutional law. These are complex practical and theoretical problems. Here, I can only provide some remarks, or points of view, by way of conclusion.
Armin von Bogdandy’s plaidoyer for ICCLA in a recent symposium of AJIL Unbound on “the constitutionalization of international law in Latin America” basically describes ius commune latinoamericanum as having great promise for “addressing the enormous social challenges faced by the region through a common discourse on human rights, democracy and the rule of law.”76 This vision is shared by most if not all proponents of this project, in academia and on the benches.77 This is a symptom of a very understandable anxiety about the rule of law in a region that faces grave problems of inequality, impunity, corruption, and a general distrust in institutions. ICCLA and the methodological program that comes with it have contributed to the strengthening of the legal protection of fundamental rights in the countries where the highest tribunals have embraced this discourse, and where the national legal orders have opened themselves to international human rights law, to international scrutiny, and to the idea of placing human dignity at the center of the constitutional order. However, the very same anxiety has led to an overemphasis on the role of judiciaries and law, at the risk of losing sight of other places of political contestation that are needed for the consolidation of democracy and for the construction of the rule of law.78
Moreover, it is important to bear in mind that the cosmopolitan language of ICCLA is understood among a rather small regional constitutional elite; it is quite alien to ordinary judges faced with very different and much more acute day-to-day problems. Thus, a word of caution on the transformative power of this “supranationally embedded and regionally rooted constitutionalism”79 is called for. Note that (p.520) there is real risk of detachment between a transnational academic discourse and the local needs and realities of lower-level judges and law-applying officials. Viewed from this perspective, a conceptual framework of global public law that integrates national and international law80 is not only of doubtful practical utility but also provides an inaccurate description of the law in these locales.
As a matter of trans-judicial communication, ICCLA occurs, if at all, top-down, that is, basically following the lead of a regional tribunal that conceives itself as a sort of supranational constitutional court, leaving little room for genuine dialogue. This hardens the pragmatic obstacles for the construction of the rule of law within the countries of the region. First, the gap between the regional constitution of rights and the locales in which this open constitution is supposed to operate only deepens when national courts do not participate in the design of that constitution, but instead almost exclusively in its promotion.81 Second, due to the very same unidirectional discourse, ICCLA has turned into a power instrument at the service of one international tribunal. The major peril behind this is that ICCLA becomes increasingly eulogistic, incapable of critical self-reflection.82 On the one hand, this is detrimental for the dissemination of the cosmopolitan constitutional culture underpinning this project beyond those who directly participate in the discourse. This in turn broadens the gap noted above. On the other hand, in a monologue that converges around the San José jurisprudence the courts participating in the enterprise are not able to produce ius commune. For that, regional and national courts would have to construe in tandem and via the comparative method a regional public law that transcends national and international law. The current state of affairs of judicial interplay in Latin America seems to block the emergence of ICCLA’s conception of law in times of pluralism, that is, the pluralist account of transnational public law.
Analyzing ius commune latinoamericanum through the lenses of comparative international law is a difficult task as the former is based on the premise that international and national law converge. The methodology of this project is the comparison of fundamental principles of public law from national and international origins: comparative constitutional law and comparative international law at the same time. If this great promise of comparative law for Latin America were to be realized, ICCLA would represent an approach and, most important, a conception of international law in the region that actually conceives it as something else: transnational or global, but not international law in the ordinary sense anymore. The operational view indicates the opposite. The judicial interplays that take place in (p.521) the framework of ICCLA represent a monist conception of international law under which Inter-American human rights law as understood by the San José Court occupies the top position in the new hierarchy. This conception has two possible, though unintended, consequences: the weakening of international law on the regional level, and fragmentation on the universal plane. As a final point, let me briefly elaborate on these apparently contradictory scenarios.
The current legal developments in the region falling under the ICCLA label are counterproductive for the very goals that it pursues. As Olga Frishman and Eyal Benvenisti argue, whenever domestic courts converge in a “faithful submission” to international courts, the development of international law can be adversely affected.83 As these authors explain, in the end convergence around an international tribunal diminishes its authority because the best support national courts actually can provide to them “is grounded on defiance.”84 To the extent that judicial communication continues to unfold top-down, the San José jurisprudence (and with it ICCLA) runs many of the risks identified by these authors: from the alienation of state parties to the American Convention to the lack of capacity to respond to political reactions to the issuance of inefficient or even counterproductive responses to the problems it seeks to address. There are many signs that these sorts of backlashes are already taking place in the Inter-American context. This also explains why Frishman’ and Benvenisti’s case against convergence resonates with the arguments of scholars dedicated to the Inter-American human rights system, such as Ariel Dulitzky. For him, the integrated Inter-American model will succeed only through a “contested partnership” between the IACHR and the national courts of the region, a proper dialogue that involves divergence.85
The weakening of international law within Latin America need not hinder the perception on the international plane of a self-opinionated regional international law. Such a perception would be detrimental to the normative ideal of one universal legal system. The relevant question here is to what extent this universal aspiration is desirable for Latin America.
There are many good reasons for viewing the international legal order as one that usually serves the interests of the most powerful. In his important study of international law in Latin America, Arnulf Becker associates Latin American “particularists” with progressive legal thinking, as opposed to the “universalists” whom he sees in the tradition of political conservativism and of a professional appeasement that “at the cost of depoliticization makes the Latin American discipline of international law irrelevant.”86
(p.522) This may hold true in certain instances, but I caution against overgeneralization. This would ignore (or caricature) a whole tradition in legal thinking in the region that believes in the legitimacy of one universal international law for an almost existential and by no means apolitical reason. This legitimacy is based on the conception of the international legal order as the common construction of the international community (the other way of looking at this conception is as “lawfare”).87 Hence, particular versions of international law are viewed with strong suspicion because they often reflect attempts by the powerful few at diminishing the common construction.88 The “universal aspiration” is an international rule of law ideal that has been vehemently defended by less powerful states, including Latin American ones and their international lawyers; it is so because it stands for the struggle for equality in international relations.89
This aspect of the international-law dimension of ICCLA has been neglected by the literature that promotes it, in spite of ICCLA also being a project on the constitutionalization of international law. In part, this is because most scholars and legal professionals involved in ICCLA are constitutionalists, especially on the Latin American side where internationalists are practically absent from the debate. But I believe that this is also related to the self-defeating nature of grand Latin American law projects that have had the bad habit of taking integral components of their own legal tradition and culture as their ultimate foil.90 In this case formalism and the associated hierarchical thinking that has the national constitution at the top of the pyramid are the foils. Latin American formalists favor a vision of one universal legal system, usually conceived in a dualistic relationship with the national order. Anti-formalists, on the other hand, tend more easily to embrace innovative legal thinking such as that embodied in ICCLA; for this, they rely on a flexible conceptual framework that in many ways resembles naturalistic or neo-naturalistic thinking.
The problem with this standard narrative is that it does not critically address what I think to be crucial for understanding ICCLA, and to which comparative international law draws our attention: the importance of transnational epistemic communities in construing attitudes toward international law.91 Neo-constitutional (p.523) anti-formalists in Latin America form part of a transnational professional elite, embedded in trans-regional networks, and with Gemeineuropäisches Verfassungsrecht as a common frame of reference (as the tertium comparationis): what they embrace as the new law of the region, which is said to emerge through comparative public law, is better described as a regional version of a European ideal of global constitutionalism. This does not emerge spontaneously via the comparative method, but is articulated in legal literature, and echoed by the San José Court in self-interest, as well as by those national courts converging around the former. There may well be a certain tendency in liberal-progressive political thinking among various proponents of ICCLA. The reconceptualization of Latin American law as one that tries to fight more forcefully the endemic problems of the region, above all inequality, can indeed be seen as a progressive hallmark of this project, which I personally applaud. But seen from this angle, ICCLA is primarily a legal discourse of a professional network (law as profession) that, as were previous Latin American dreams of legal integration,92 is heavily driven by the anxiety to participate in the dominant legal discourses from the global north. (p.524)
(*) I thank the participants at the 28th Annual Sokol Colloquium, at the University of Virginia, School of Law, for a fruitful discussion on the ideas elaborated in this chapter. My special gratitude goes to Mila Versteeg and Pierre-Hugues Verdier for very helpful comments on an earlier draft, as well as to Helmut Aust and Juan de Dios Gutiérrez Baylón for inspiring suggestions. I thank María José Flores Ramírez (ITAM) for technical assistance. The usual disclaimer applies.
(1.) See INDALECIO LIÉVANO AGUIRRE, BOLIVARISMO Y MONROISMO (1987).
(2.) See Juan de Dios Gutiérrez Baylón, La Explicación de la Fecha del Bicentenario ante el Derecho Internacional: México y la Doctrina del Uti Possidetis, in LA INDEPENDENCIA DE MÉXICO A 200 AÑOS DE SU INICIO. PENSAMIENTO SOCIAL Y JURÍDICO 139 (Comisión Organizadora de los Festejos del Bicentenario y Centenario de la Revolución Mexicana, ed. 2010); see also Marcelo G. Kohen, La Contribution de l’Amérique Latine au Développement Progressif du Droit International en Matière Territoriale, 137 RELATIONS INTERNATIONALES 13 (2009).
(3.) See Alejandro Álvarez, Le Droit International Américain, son origine et son évolution 14 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 393 (1907); Alejandro Álvarez, Latin America and International Law, 3 AM. J. INT’L L. 269 (1909). For an excellent analysis of Álvarez’s work and vita, see Liliana Obregón, Noted for Dissent: The International Life of Alejandro Álvarez, 19 LEIDEN J. INT’L L. 983 (2006).
(4.) See Alejandro Álvarez, LA CONFÉRENCE DES JURISTES DE RIO DE JANEIRO ET LA CODIFICATION DU DROIT INTERNATIONAL AMÉRICAIN (1913); Alejandro Álvarez, LE CONTINENT AMÉRICAIN ET LA CODIFICATION DU DROIT INTERNATIONAL. UNE NOUVELLE ‘ÉCOLE’ DU DROIT DES GENS (1938). As Liliana Obregón mentions, codification already played a pivotal role for Carlos Calvo and Andrés Bello in relation to the Latin American distinctiveness toward international law. However, it is important to note that neither Bello nor Calvo embraced “Latin American international law,” limiting themselves to articulating and highlighting the specificities of the region and its contributions to general international law. See Obregón, supra note 3.
(5.) See César Sepúlveda, El Panorama de los Derechos Humanos en América Latina: Actualidad y Perspectivas, 45 BOLETÍN MEXICANO DE DERECHO COMPARADO 1053 (1982).
(6.) See César Sepúlveda, DERECHO INTERNACIONAL 531–34, 247–56 (26th ed. 2013) (mentioning that the regional and universal systems harmonically complement each other, and that the ultimate goal is the universal protection of international human rights law. It is also interesting to observe that in his international law textbook—probably the most influential in law school curricula in Mexico until recently—several pages are dedicated to the doctrines of Carlos Calvo, and none to those of Alejandro Álvarez).
(7.) Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier & Mila Versteeg, Comparative International Law: Framing the Field, 109 AM. J. INT’L L. 467, 468 (2015).
(8.) See Armin von Bogdandy, Ius Constitutionale Commune en América Latina: Observations on Transformative Constitutionalism, 109 AM. J. INT’L L. UNBOUND 109 (2015).
(9.) See Armin von Bogdandy, Ius Constitutionale Commune Latinoamericanum. Una Aclaración Conceptual, in IUS CONSTITUTIONALE COMMUNE EN AMÉRICA LATINA. RASGOS, POTENCIALIDADES Y DESAFÍOS 3, 21 (Armin von Bogdandy, Héctor Fix-Fierro & Mariela Morales Antoniazzi eds., 2014).
(10.) Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶ 100 (Sept. 17, 2003) (with further references to its previous advisory jurisprudence). The San José Court’s tenet of the oneness of the human family is deeply influenced by the doctrines of its former president, Cançado Trindade, See Antônio A. Cançado Trindade, TRATADO DE DIREITO INTERNACIONAL DOS DIREITOS HUMANOS, vols. 1–2 (1997).
(11.) Anthea E. Roberts, Paul B. Stephan, Pierre-Hugues Verdier & Mila Versteeg, Conceptualizing Comparative International Law, at 8 (this volume).
(12.) Id. at 28–9.
(13.) On comparative international law as a project for furthering a more international international law, See Martti Koskenniemi, The Case for Comparative International Law, 20 FIN. YB. INT’L L. 1 (2009).
(15.) This notion was first articulated by Peter Häberle, Gemeineuropäisches Verfassungsrecht, 18 EUROPÄISCHE GRUNDRECHTE-ZEITSCHRIFT 261 (1991). See also Markus Heintzen, Gemeineuropäisches Verfassungsrecht in der Europäischen Union, 32 EUROPARECHT 1 (1997); Christoph Möllers, Verfassunggebende Gewalt—Verfassung—Konstitutionalisierung, in EUROPÄISCHES VERFASSUNGSRECHT. THEORETISCHE UND DOGMATISCHE GRUNDZÜGE 227, 266–67 (Armin von Bogdandy & Jürgen Bast eds., 2009); see infra note 26 and accompanying text.
(16.) This is what Liliana Obregón refers to as the “creole legal consciousness.” Liliana Obregón, Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America, in INTERNATIONAL LAW AND ITS OTHERS 247 (Anne Orford ed., 2006).
(17.) For a comprehensive overview, see Roberto Gargarella, LATIN AMERICAN CONSTITUTIONALISM: 1810–2010. THE ENGINE ROOM OF THE CONSTITUTION 148–95 (2013); see also Alejandro Rodiles, The Law and Politics of the Pro Persona Principle in Latin America, in THE INTERPRETATION OF INTERNATIONAL LAW BY DOMESTIC COURTS: UNIFORMITY, DIVERSITY, CONVERGENCE 153 (Helmut Philipp Aust & Georg Nolte eds., 2016) (with further references).
(19.) See Luis Prieto Sanchís, CONSTITUCIONALISMO Y POSITIVISMO (1997). The concept of “Estado constitucional” goes directly back to Peter Häberle’s theses on the “Verfassungsstaat,” developed over the years, which were assembled in a monograph published in Mexico; See Peter Häberle, EL ESTADO CONSTITUCIONAL (2001).
(20.) See Luis Prieto Sanchís, Neoconstitucionalismo y Ponderación Judicial, 5 ANUARIO DE LA FACULTAD DE DERECHO DE LA UNIV. AUTÓNOMA DE MADRID 201 (2001).
(21.) Among the vast literature, see the contributions in EL CANON NEOCONSTITUCIONAL (Miguel Carbonell & Leonardo García Jaramillo eds., 2010); EL DERECHO EN AMÉRICA LATINA: UN MAPA PARA EL PENSAMIENTO JURÍDICO DEL SIGLO XXI (César Rodríguez Garavito ed., 2011); NEW CONSTITUTIONALISM IN LATIN AMERICA: PROMISES AND PRACTICES (Detlef Nolte & Almut Schilling-Vacaflor eds., 2012).
(22.) The Germans Robert Alexy and Peter Häbele, the Spaniard Manuel Atienza, and the Italian Luigi Ferrajoli are among the most influential, together with the US-American Ronald Dworkin and, as the only Latin American, the Argentinean Carlos Nino. For the influence of these thinkers on Latin American neo-constitutionalism, See Ana Micaela Alterio, Corrientes del Constitucionalismo Contemporáneo a Debate, 8 PROBLEMA 227 (2014).
(23.) See, e.g., Mariela Morales Antoniazzi, El Estado Abierto como Objetivo del Ius Constitutionale Commune. Aproximación desde el Impacto de la Corte Interamericana de Derechos Humanos, in IUS CONSTITUTIONALE COMMUNE EN AMÉRICA LATINA: RASGOS, POTENCIALIDADES Y DESAFÍOS, supra note 9, 265, 268–69 (with further references).
(26.) Peter Häberle, México y los Contornos de un Derecho Constitucional Común Americano: Un Ius Commune Americanum, in DE LA SOBERANÍA AL DERECHO CONSTITUCIONAL COMÚN: PALABRAS CLAVE PARA UN DIÁLOGO EUROPEO-LATINOAMERICANO 1 (Peter Häberle & Markus Kotzur eds., 2001).
(27.) Peter Häberle, Gemeineuropäisches Verfassungsrecht, 18 EUROPÄISCHE GRUNDRECHTE-ZEITSCHRIFT 261 (1991); Peter Häberle, EUROPÄISCHE VERFASSUNGSLEHRE (2011). Like most of his work, the 1991 essay has been translated into Spanish: Peter Häberle, Derecho Constitucional Común Europeo, 79 REVISTA DE ESTUDIOS POLÍTICOS 7 (1993).
(30.) ICCLA is one of the main research projects of this prestigious institute. It forms part, together with the project ius publicum europaeum, of the major research area of “comparative public law.” This is interesting in the context of the present book. Comparative public law strives to identify similarities in public law institutions and fundamental rights across various national jurisdictions and international legal regimes, in order to articulate the contours of an emerging global public law in which the national/international divide is blurred. This signals the difficulties in distinguishing between comparative international law and comparative constitutional law, according to increasingly popular conceptions of a changing law in times of “structural transformations of the public space.” For more information on these intertwined projects, carried out under the leadership of Prof. Armin von Bogdandy, see Max Planck Inst., Comparative Public Law, http://www.mpil.de/en/pub/research/areas/comparative-public-law.cfm.
(31.) The most important publications being LA JUSTICIA CONSTITUCIONAL Y SU INTERNACIONALIZACIÓN: ¿HACIA UN IUS CONSTITUTIONALE COMMUNE EN AMÉRICA LATINA? (Armin von Bogdandy, Eduardo Ferrer MacGregor & Mariela Morales Antoniazzi eds., 2010); IUS CONSTITUTIONALE COMMUNE EN AMÉRICA LATINA: RASGOS, POTENCIALIDADES Y DESAFÍOS, supra note 9; see also TRANSFORMATIVE CONSTITUTIONALISM IN LATIN AMERICA: THE EMERGENCE OF A NEW IUS COMMUNE (Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan & Ximena Soley eds., 2017). Germany’s Konrad Adenauer Foundation provides much funding for these conferences and publications.
(33.) The importance of this network of professionals for neo-constitutionalism and ius commune is openly acknowledged by proponents of these discourses. See César Rodríguez Garavito, Navegando la Globalización: Un Mapamundi para el Estudio y la Práctica del Derecho en América Latina, in EL DERECHO EN AMÉRICA LATINA, supra note 21, 69, 69–71 (mentioning that this trend “is about a set of epistemic, professional and political networks, more or less organized, which have constructed and promoted Latin American neo-constitutionalism.”); see also Paola Andrea Acosta Alvarado, DIÁLOGO JUDICIAL Y CONSTITUCIONALISMO MULTINIVEL: EL CASO INTERAMERICANO 122–45 (2015) (underlining the importance of the extension of judicial, legal, and academic regional networks in understanding “ius commune inter-americano.”).
(35.) Here, the work of the Walter Hallstein Institute for European Constitutional Law at Humboldt-University, Berlin, is illustrative (information available at http://www.whi-berlin.eu/index.html); for a representative essay on European multilevel constitutionalism, see Ingolf Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?, 36 COMMON MKT. L. REV. 703 (1999) (dedicated to Pernice’s academic teacher, Peter Häberle).
(36.) For the tertium comparationis as an ideal, see John C. Reitz, How to Do Comparative Law, 46 AM. J. COMP. L. 617, 623 (1998).
(38.) On formalism as the foil of the interpretive turn in the region, see Jorge Esquirol, The Turn to Legal Interpretation in Latin America, 26 AM. U. INT’L L. REV. 1031 (2011); see also Rodiles, supra note 17, at 170–71.
(42.) See, e.g., L. Burgorgue-Larsen, La Corte Interamericana de Derechos Humanos como Tribunal Constitucional, in IUS CONSTITUTIONALE COMMUNE EN AMÉRICA LATINA 421, supra note 31; for a critical account, See Ariel E. Dulitzky, An Inter-American Constitutional Court? The Invention of the Conventionality Control by the Inter-American Court of Human Rights, 50 TEX. INT’L L.J. 45 (2015); see also René Urueña, Global Governance Through Comparative International Law? Inter-American Constitutionalism and the Changing Role of Domestic Courts in the Construction of the International Law, Jean Monnet Working Paper Series 21/13 (2013). Former judge of the IACHR, Sergio García Ramírez, has compared on several occasions the function of the San José Court with the mission of national constitutional courts; see Tibi v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 114, ¶ 3 (Sept. 7, 2004) (J García Ramírez conc.); Dismissed Congressional Employees v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 158, ¶¶ 4-5 (Nov. 26, 2006) (J García Ramírez conc.).
(43.) Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75, ¶ 44 (14 Mar. 2001).
(44.) Barrios Altos v. Peru, Interpretation of the Judgment of the Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 83, ¶ 2 (Sept. 3, 2001).
(45.) See Eduardo Ferrer Mac-Gregor, El Control Difuso de Convencionalidad en el Estado Constitucional, in FORMACIÓN Y PERSPECTIVAS DEL ESTADO EN MÉXICO 151, 172–84 (Héctor Fix Zamudio & Diego Valadés eds., 2010). For this author and current San José judge, the doctrine of conventionality control, as well as several interpretive methods employed by the IACHR and national courts in relation to Inter-American human rights law, are clear manifestations of “the constitutionalization of international law,” and ultimately of “the construction of an Inter-American public law.” Elsewhere, Ferrer has characterized the doctrine of conventionality control as the “internationalization of constitutional law.” See Eduardo Ferrer Mac-Gregor, Reflexiones sobre el Control Difuso de Convencionalidad. A la Luz del Caso Cabrera García y Montiel Flores v México, XLIV BOLETÍN MEXICANO DE DERECHO COMPARADO 917, 928 (2011).
(46.) For a critical assessment of conventionality control as a sort of judicial review, see Christina Binder, The Prohibition of Amnesties by the Inter-American Court of Human Rights, 12 GERMAN L.J. 1203, 1215–17 (2011).
(47.) Almonacid-Arellano v. Chile, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 154, ¶ 124 (Sept. 26, 2006).
(48.) This is most visible in Argentina, Colombia, Costa Rica, Ecuador, Guatemala, Mexico, and Peru. See Humberto Nogueira Alcalá, DERECHOS FUNDAMENTALES, BLOQUE CONSTITUCIONAL DE DERECHOS. DIÁLOGO INTERJURISDICCIONAL Y CONTROL DE CONVENCIONALIDAD 642–53 (2014).
(49.) Other Treaties Subject to the Consultative Jurisdiction of the Court, Advisory Opinion OC-1/82, Inter-Am. Ct. H.R. (ser. A) No. 1, ¶ 39 (Sept. 24, 1982); see also Rodiles, supra note 17, at 159–60.
(50.) Contradicción de Tesis 293/2011. Derechos Humanos contenidos en la Constitución y en los Tratados Internacionales. Constituyen el parámetro de control de regularidad constitucional. Pero cuando en la Constitución haya una restricción expresa al ejercicio de aquéllos, se debe estar a lo que establece el texto constitucional. Y, Jurisprudencia emitida por la Corte Interamericana de Derechos Humanos. Es vinculante para los jueces mexicanos siempre que sea más favorable a la persona, Pleno de la Suprema Corte de Justicia de la Nación [SCJN], Semanario Judicial de la Federación y su Gaceta, Décima Época, tomo I, Abril de 2014, Páginas 143–45.
(51.) Gelman v. Uruguay, Monitoring Compliance with Judgment, Order of the Court, Inter-Am. Ct. H.R., Separate Concurring Opinion of Judge Ferrer McGregor, ¶ 100 (Mar. 20, 2013).
(54.) See Anthea Roberts, Comparative International Law? The Role of National Courts in Creating and Enforcing International Law, 60 INT’L & COMP. L.Q. 57, 61–64 (2011).
(55.) See Special Rapporteur on the Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, Fourth Rep. on the Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, Int’l Law Comm’n, U.N. Doc. A/CN.4/694 (Mar. 7, 2016), 36–44 (by Georg Nolte); see also Anthea Roberts, Subsequent Agreements and Practice: The Battle over Interpretive Power, in TREATIES AND SUBSEQUENT PRACTICE 95, 101 (Georg Nolte, ed., 2013); Christian Djefall, Dynamic and Evolutive Interpretation of the ECHR by Domestic Courts? An Inquiry into the Judicial Architecture of Europe, in THE INTERPRETATION OF INTERNATIONAL LAW BY DOMESTIC COURTS, supra note 17, at 175, 195.
(58.) Corte Constitucional [C.C.] [Constitutional Court], Sala Primera de Revisión, junio 5, 1992, Ciro Angarita Barón, Sentencia T-406/92, Gaceta de la Corte Constitucional [G.C.C.] (vol. único, p. 190) (Colom.).
(59.) See Anne-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. RICH. L. REV. 99, 111–12 (1994).
(61.) Latin American constitutional and highest courts do of course refer to decisions by their peers in other countries but basically on their understandings of similar constitutional principles and provisions. Thus, it is comparative constitutional law, in a strict sense, rather than comparative international law, which is usually employed by Latin American national courts. This usage of comparative constitutional law goes well beyond the region (most popular remain the US Supreme Court and the German Federal Constitutional Court).
(62.) For more information on this transnational platform, see Instituto Iberoamericano de Derecho Constitucional, http://www.juridicas.unam.mx/iidc/; on its role for ICCLA, see von Bogdandy, supra note 9, at 4.
(63.) See supra note 45 and accompanying text. For the different degrees of diffused conventionality control, see Pablo Contreras, Control de Convencionalidad, Deferencia Internacional y Discreción Nacional en la Jurisprudencia de la Corte Interamericana de Derechos Humanos, 20 IUS ET PRAXIS 235 (2014).
(64.) On the pro persona principle, see, e.g., Mónica Pinto, El Principio Pro Homine: Criterios de Hermenéutica y Pautas para la Regulación de los Derechos Humanos, in LA APLICACIÓN DE LOS TRATADOS INTERNACIONALES SOBRE DERECHOS HUMANOS POR LOS TRIBUNALES LOCALES 163 (Martín Abregú & Cristian Courtis, eds., 1997); Karlos Castilla, El Principio Pro Persona en la Administración de Justicia, 20 CUESTIONES CONSTITUCIONALES 65 (2009); for a critical assessment of this interpretive method, see Helmut Philipp Aust, Alejandro Rodiles & Peter Staubach, Unity or Uniformity? Domestic Courts and Treaty Interpretation, 27 LEIDEN J. INT’L L. 75, 96–100 (2014); see also Rodiles, supra note 17.
(65.) See Corte Constitucional [C.C.] [Constitutional Court], mayo 18, 1995, Alejandro Martínez Caballero, Sentencia C-225/95, Gaceta de la Corte Constitucional [G.C.C.] (vol. 1, p. 370) (Colom.); for an overview of the vast case law of the CCC where the constitutional bloc has been decisive, see Mónica Arango Olaya, El Bloque de Constitucionalidad en la Jurisprudencia de la Corte Constitucional Colombiana, PRECEDENTE 79 (2004).
(66.) Pro persona and bloque de constitucionalidad have also favored the increasing use of informal international law by Latin American domestic courts, see Rodiles, supra note 17, at 166 (with further references). It would be an interesting case study to analyze to what extent and why informal law is playing a greater role than customary international law in Latin America, that is, whereas national courts in the region still feel very uneasy with the use of unwritten international law (cf. PETER STAUBACH, THE RULE OF UNWRITTEN INTERNATIONAL LAW: CUSTOMARY LAW, GENERAL PRINCIPLES, AND WORLD ORDER (forthcoming 2018)), they seem to have no problem with the application of non-binding resolutions of international bodies, best practices, standards, and the like, and independently if these stem from formal international organizations, expert bodies, global NGOs, or informal networks.
(67.) See, e.g., César Landa, La Fuerza Normativa Constitucional de los Derechos Fundamentales, in JUSTICIA CONSTITUCIONAL Y DERECHOS FUNDAMENTALES: FUERZA NORMATIVA DE LA CONSTITUCIÓN 17, 26 (Víctor Bazán & Claudio Nash eds., 2012).
(68.) See, e.g., Corte Constitucional [C.C.] [Constitutional Court], diciembre 7, 2001, Dr. Rodrigo Uprimny Yepes, Sentencia T-1319/01, Relatoría de la Corte Constitucional; Corte Constitucional [C.C.] [Constitutional Court], enero 27, 2004, Dr. Eduardo Montealegre Lynett, Sentencia C-038/04, Relatoría de la Corte Constitucional; Corte Constitucional [C.C.] [Constitutional Court], abril 14, 2005, Manuel José Cepeda Espinosa, Sentencia C-401/05, Relatoría de la Corte Constitucional; Corte Constitucional [C.C.] [Constitutional Court], julio 22, 2009, Jorge Iván Palacio Palacio, Sentencia C-488/09, Relatoría de la Corte Constitucional; Corte Constitucional [C.C.] [Constitutional Court], marzo 3, 2011, Jorge Iván Palacio Palacio, Sentencia T-129/11, Relatoría de la Corte Constitucional.
(69.) See Expediente Varios 912/2010, Pleno de la Suprema Corte de Justicia de la Nación [SCJN], Semanario Judicial de la Federación y su Gaceta, Novena Época, tomo I, octubre de 2011, Núm. de Registro 23183, Páginas 313, Párr.: 24–31.
(70.) See Dulitzky, supra note 42, at 7991 (for this “integrated Inter-American model” recourse to techniques known from the European human rights system, as well as European Union and Andean Community law, such as margin of appreciation and preliminary rulings, are seen as new building blocks).
(75.) The “Structural Transformation of Public Law” being another research project led by von Bogdandy at Heidelberg’s Max-Planck Institute, information available at Leibniz-Project: Structural Transformation of Public Law, http://www.mpil.de/en/pub/research/areas/structctural-transformation/leibniz-project.cfm. On the close relationship among this theme, pluralism, and ICCLA, see von Bogdandy, supra note 9, at 6–7, 16. Bogdandy’s theses on public law at the global level, which comprises constitutional and international law, have been compiled in a monograph published in Mexico; See Armin von Bogdandy, HACIA UN NUEVO DERECHO PÚBLICO. ESTUDIOS EN DERECHO PÚBLICO COMPARADO, SUPRANACIONAL E INTERNACIONAL (2011).
(77.) See, e.g., Eduardo Ferrer Mac-Gregor, Conventionality Control. The New Doctrine of the Inter-American Court of Human Rights, 109 AM. J. INT’L L. UNBOUND 93, 99 (2015).
(78.) In a similar vein, see Roberto Gargarella, Democracy and Rights in Gelman v. Uruguay, 109 AM. J. INT’L L. UNBOUND 115 (2015).
(80.) Cf. Mattias Kumm, The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State, in RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW, AND GLOBAL GOVERNANCE 258, 263–64 (Jeffrey L. Dunoff & Joel P. Trachtman eds., 2009).
(81.) Dulitzky also draws attention to the fact that “[a] mechanical application of the Court’s case law could even affect the very judicial independence of Latin American judges.” Ariel E. Dulitzky, An Alternative Approach to the Conventionality Control Doctrine, 109 AM. J. INT’L L.UNBOUND 100, 104 (2015).
(86.) Arnulf Becker Lorca, International Law in Latin America or Latin American International Law? Rise, Fall and Retrieval of a Tradition of Legal Thinking and Political Imagination, 47 HARV. INT’L L.J. 283, 305 (2006).
(87.) Elsewhere, I elaborate on the importance of not losing sight of how much states from the so-called global south cherish the international legal order with all its shortfalls, precisely because they view it as their common asset. In other words, the crucial question, whose international law are we talking about, is subject to an ongoing contestation. See ALEJANDRO RODILES, COALITIONS OF THE WILLING AND INTERNATIONAL LAW: THE INTERPLAY BETWEEN FORMALITY AND INFORMALITY (forthcoming 2018).
(88.) I thank Juan de Dios Gutiérrez Baylón for drawing my attention to this (while he mentioned that comparative international law is infected with the same Eurocentric virus it tries to combat).
(89.) On the defense of the rule of international law by less powerful states, see Sundhya Pahuja, DECOLONISING INTERNATIONAL LAW: DEVELOPMENT, ECONOMIC GROWTH AND THE POLITICS OF UNIVERSALITY 172–85 (2011).