The Right of Cultural Minorities to Binding Consent: Case Study of Judicial Dialogue in the Framework of a Ius Constitutionale Commune en América Latina
Juan C. Herrera, Self-government of Indigenous Peoples and Afro-Descendants in Colombia: An Example of Transformative Constitutionalism in Wright, C & Tomaselli, A. The Prior Consulation of Indigenous Peoples in Latin America, Inside the Implementation Gap. (London: Routledge, Forthcoming 2019)
Juan C. Herrera, Transformative Constitutionalism in Latin America: The Case of Indigenous Peoples and Afro-descendants. Revista Derecho del Estado, Universidad Externado de Colombia, Vol. 43, July-December, 2019
Posted: 31 May 2017
Date Written: May 22, 2017
This paper presents case law of the Inter-American Court of Human Rights and the Constitutional Court of Colombia during a 25-year period (1992 to 2017). By seriously contemplating the rights of indigenous peoples, afro-descendants and other cultural minorities, this study illustrates the standards of the afore-mentioned courts regarding prior and informed consultation and binding informed consent as an alternative to the problematic category of so-called “veto power”. In addition, it focuses on the principal outcomes of the landmark case Saramaka v. Suriname (2007) and decision T-129/11 Emberá Katío v. Executive Power, which currently encompass the highest standard of protection. However, the outcomes of judicial dialogue are at risk of being annulled. The problematic situations of these minorities and the inadequate application of a prior consultation requirement highlights the relevance of articulating standards in the transnational arena and within the framework of a broader Ius Constitutionale Commune en América Latina.
Keywords: prior consultation, binding informed consent, indigenous peoples, afro-descendants, Constitutional Court of Colombia, Inter-American Court of Human Rights, judicial dialogue, Ius Constitutionale Commune en América Latina (ICCAL), internationalization of constitutional law, regional integration
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