International Law and Constitutional Law in Latin America
Forthcoming, Conrado Hübner Mendes and Roberto Gargarella (eds.), The Oxford Handbook of Constitutional Law in Latin America
20 Pages Posted: 25 Jul 2018
Date Written: July 3, 2018
This contribution examines the relationship between international law and domestic law in Latin America. It assesses whether international norms can be validly invoked before local authorities, what the hierarchy conferred upon them is, as well as the status of decisions and other pronouncements by supranational bodies, most notably those of the Inter-American System. All in all, it documents the increasing importance that international law has achieved within Latin American legal systems since the wave of Constitutional reforms that started in the mid-1980s. In this context, it highlights the privileged status generally conferred upon international human rights law, within domestic constitutional systems, by means of its constitutionalization. However, on the basis of three cases-studies on Argentina, Mexico and Colombia, this contribution shows that in practice domestic authorities have had a zigzagging attitude vis-à-vis the hierarchy and applicability of international human rights norms, particularly with respect to the decisions of the Inter-American Court of Human Rights. Ultimately, I argue that this particular feature can be explained neither by the relevant legal provisions in the American Convention on Human Rights or in the national Constitutions, nor through the expansive jurisprudence of the Inter-American Court of Human Rights. Rather, the best explanation for it is through the political needs of local high courts at different times. Nevertheless, this ultimately shows that despite what all of these courts state in their jurisprudence, we lack an adequate model to regulate the specific terms of the relationship between domestic courts and their supranational counterparts.
Keywords: International Law, Constitutional Law, International Human Rights Law, Inter-American Court Of Human Rights, Global Governance, High Courts
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