Latin American Constitutionalism Research Articles

Imagining ecopolis: Visions of ecofeminist political theology and ecocriticism in Latin America

Although often overlooked by mainstream accounts of political theology and ecocriticism in the Global North, powerful visions of an ecopolis have been emerging in Latin America. In this article, we review the status of mainstream approaches to notions such as subject, citizen, and personal dignity and put them in a critical dialogue with Latin American Ecofeminist Political Theologies (LAEPT). We argue that those notions, often conceived from a Western and anthropocentric perspective, show their limits when interrogated from the perspective of LAEPT. Accordingly, we suggest that their main contribution lies not only in their critique of the Western paradigm but also in advancing alternative conceptions of an ecologically conscious political community that considers the Earth as sacred, and nature as a reflection of the divine. We conclude that such conceptions can also be seen at work in the rights of nature enshrined in the so-called new Latin American Constitutionalism.

Earth jurisprudence in South America: Trends and developments

This article aims to present an analysis of the evolution and contributions developed and integrated into the corpus of Earth Jurisprudence from practice in seven (7) South American countries where 135 records were found between 2005 and 2023. The case study was carried out using the methodological approach of the qualitative approach, the hermeneutic method, and the documentary review technique. The unit of analysis was based on the recognition of rights to nature, the data and information organized according to legal/political provisions, the state, the actor that initiated the action, and the ecological actor involved. Among the most outstanding findings, it is evident that a large number of records are concentrated in Ecuador and Colombia. The first correlates with the constitutionalization of the rights of nature and coincides with the second as they have been part of the stream known as new Latin American constitutionalism. In addition, a notable jurisprudential development recognizes nature as a subject of rights and declares it a victim of the armed conflict. Bolivia, which also joined this emerging denomination, has a different tendency than it had in its beginnings, not as the two countries mentioned above have done. Brazil stands out for its considerable increase in such legislative recognition. Argentina has a stronger emphasis on animal law. Peru has an incipient contribution to some regulatory implementation. Finally, Chile, the most laggard, tries it with a new constitution that recognizes these rights without having the approval at the ballot box. It is concluded the need to elevate the rights of nature and animals to constitutional status, claiming indigenous and ancestral cosmogonies regionally since it includes a legal stability that would facilitate the work of judicial and legislative actors and decision-makers for developing public policies, which would contribute to the practical development of the new Latin American constitutionalism and the Earth Jurisprudence.

Was the Rule of Law the Only Casualty of Polity Design in the New Latin American Constitutionalism?

The objective of this article is to introduce a new concept for grouping all countermajoritarian instruments which became the true casualties of polity design during the New Latin American Constitutionalism (NLAC). This theoretical endeavor, which has not been undertaken until now, will be discussed on the basis of the constitutional upheavals that occurred between 1999 and 2009 in Venezuela, Ecuador, and Bolivia. By addressing a specific theme of this experience, namely its implications for the relationship between democracy and countermajoritarian devices, this article shows why an aggregating concept such as state ataraxy is needed. This concept fills the gap that hinders understanding of what has been institutionally dismantled in the course of these reforms. The article then challenges the claim that with the collapse of countermajoritarian institutions, democracy necessarily collapses. It concludes with a new assessment of the novelty that the NLAC may have brought concerning the tension between democracy and countermajoritarian institutions. The findings contribute to understand one of the most enduring concerns of state theory in general, the tension between democracy and the rule of law.

Brief adjustments to the contribution of historical sociology to Latin-American constitutionalism

Resumo O objetivo principal do artigo é apresentar a sociologia histórica como método apto a gerar abordagens inovadoras para o campo do direito constitucional latino-americano. Considerando a lógica da longa duração (long durée), o artigo problematiza a necessidade de superação da dinâmica constituinte apenas como uma construção do futuro para alçar a uma estratégia de desvelamento de continuidades. A partir de elementos da realidade brasileira, o artigo apresenta dois casos em que são indicadas as potencialidades de aplicação do método da sociologia histórica para o constitucionalismo na região. O primeiro trata da permanência da legalidade autoritária a partir da atuação dos tribunais após a redemocratização da região. O segundo discorre sobre a formação normativa constitucional e infraconstitucional da administração pública brasileira. A metodologia utilizada é a do ensaio analítico e seu fundamento, para a indicação dos problemas históricos concretos apresentados, é a abertura do método da sociologia histórica à hibridação de disciplinas.

Redefining the Concept of Democracy in the New Latin American Constitutionalism: Legal Pluralism and Communitarian Systems

Redefining the Concept of Democracy in the New Latin American Constitutionalism: Legal Pluralism and Communitarian Systems

Konstytucyjna aksjologia postkolonialna XXI w. w Ameryce Łacińskiej na przykładzie Republiki Ekwadoru i Wielonarodowego Państwa Boliwii

The purpose of the article is to analyse the concepts of sumak kawsay / suma qamaña and Pacha Mama introduced into the constitutions of the Republic of Ecuador and the Plurinational State of Bolivia at the end of the first decade of the 21st century, which have a juridical impact across other countries of Latin America. The new ideas form a different axiology for constitutional systems in this region of the world from the previous one and represent an attempt to move away from an anthropocentric vision of society. Using historical, formal-dogmatic and comparative-legal methods, the author presents the development of Latin American constitutionalism, analyses the global and local determinants of the popularity of the aforementioned concepts at the beginning of the present century, deconstructs the notions of sumak kawsay / suma qamaña and Pacha Mama and shows their positions in the constitutions of both the Republic of Ecuador and the Plurinational State of Bolivia. The result of the study proves that the post-colonial concepts used as foundations for the newly formulated constitutional systems of the Republic of Ecuador and the Plurinational State of Bolivia are an essential step towards the creation of an original constitutional tradition in Latin America that takes into account the history and values of the indigenous peoples of the Andes and the Amazon.

Hybridity and Constitutional Taxonomy in Latin America

Abstract This article focuses on Latin American constitutionalism with two goals in mind. The first goal is to identify narratives of constitutional mixity or hybridity that have been influential in Latin America, something that habilitates a comparative analysis with references to mixed or hybrid constitutionalism in other scenarios. One narrative underlines the combination of U.S.-inspired constitutionalism with background civil law systems. Another narrative highlights the way classic regional constitutional designs feature a liberal-conservative hybridation that, some claim, continue to influence constitutional dynamics up to this day. And the third narrative is associated with the establishment in regional countries of hybrid or mixed systems of judicial review. The second goal of the article, more methodological in kind, is to explore what do Latin American narratives on mixity teach in the way to clarifying the nature and implications of exercises constitutional taxonomy. As it emerges, constitutional taxonomy is a way of organizing and generating knowledge which is useful to describe, but most meaningful when addressed to provide an explanation, which is often just an antechamber to normative evaluation. Whether a particular exercise of constitutional taxonomy makes sense in a particular scenario, however, is a different matter, and the article suggests that describing, explaining and evaluating Latin American constitutions as hybrid is illuminating but also problematic in a number of ways.

An Urgent Dialogue between Urban Design and Regulatory Framework for Urban Rivers: The Case of the Andalién River in Chile

Climate change scenarios predict alarming levels of water scarcity and damaging flood events worldwide. Considering hydric systems in integrated spatial planning will be crucial in mitigating, adapting, and reversing climate change’s catastrophic effects. This paper focuses on fluvial restoration as part of urban and territorial regulatory frameworks in the Andalién River and the city of Concepción in Chile. We consider three work scales: (i) basin, (ii) river reaches which focus on the city–river interplay, and (iii) site-specific, deepening the discussion around the last two. The objective is to elaborate an interdisciplinary dialogue between urban design, fluvial dynamics, and the Chilean regulatory framework where property rights play a predominant role in the management of natural resources (water and land). In this regard, the ‘New Latin American Constitutionalism’ offers concrete possibilities to operationalize an emerging paradigm that recognizes legal personhood for Nature. The incorporation of an ecological function to property rights emerges as a new way in which the principles of resilient urban development can be applied in order to combine river dynamics and urban growth.

The right to housing under the new Latin American constitutionalism: progresses and challenges in the Ecuadorian case study

In recent decades, most Latin American countries have had their constitutions substantially amended, and several countries have introduced new constitutions altogether. Ecuador’s new constitution came into effect in 2008 and, ever since, the society has shifted its traditional attitudes towards social rights, which had previously been undervalued and dismissed as mere subjective issues. Regarding housing as a basic human right, the promotion of social housing has been constitutionally guaranteed, and public policies have been set forth for that purpose. The present work will analyse: (1) the justice procedures set out in order to enforce habitat and housing rights, as brought to the fore in Ecuador since the advent of the 2008 Constitution; and (2) the public housing policies enforced, emphasising their historical constraints, financial aims, political potentialities, and actual outcomes, which in some cases were the reproduction of inequality.

Marco Constitucional de Protección a los Consumidores en Cuba. Apuntes a Propósito de la Constitución de 2019

En este artículo se ofrece una valoración sobre del derecho de protección a los consumidores a partir de su reconocimiento como derecho fundamental con su inclusión en la Constitución cubana de 2019. Se parte de un breve esbozo histórico del desarrollo de este derecho en el país, se realiza análisis teórico acerca de la naturaleza del mismo, además de un análisis exegético del precepto constitucional y la configuración técnico – jurídica de acuerdo a la teoría de los derechos, así como la comparación jurídica con otras constituciones latinoamericanas.

Extractive Constitutions: Constitutional Change and Development Paths in Latin America

AbstractUnder the label “New Latin American Constitutionalism”, scholars have explained the emergence of new constitutions or organic constitutional reforms in the eighties and nineties and, since the 2000s, the constitutions associated with the “Left turn” in the region. Radical constitutional changes, however, have not stopped the expansion of social conflicts associated with internationally-backed extractive and infrastructure projects deemed as crucial for national development. As new processes of constitution building are gaining momentum in the region, it is crucial to investigate the reasons why societies under progressive and neoliberal constitutions suffer from similar conflicts. Drawing on decolonial theory and critically dialoguing with the literature on constitutions and development, the article proposes an analytical scheme to understand the relationship between constitutional arrangements and development in neoliberal and multicultural Peru and Colombia, and post-neoliberal and plurinational Bolivia and Ecuador. The article argues that even though these constitutions possess deep differences at the level of development discourses, strategies, and tools, they share the same development paradigm.

Legal Pluralism: Opportunities for Development from a Constitutional Perspective in Latin America

The recognition of legal pluralism by International Law on Human Rights, especially by Convention 169 of the ILO, as well as its positivization in the Constitutions of some Latin American states, allows us to affirm that this principle must move from its foundational phase to the phase of its consolidation. Through a qualitative and theoretical methodology that analyzes the state of the art proposed by recognized authors on the subject, this article aims to describe legal possibilities to overcome the current stagnation in the theoretical development of legal pluralism. With this, the author aims to describe the current perspective with which legal pluralism is studied, showing a problem of approach based on the lack of coordination and articulation between legal science, legal sociology and legal anthropology, causing a crisis and a stagnation in the development of the concept. Effectively, whit the recognition of indigenous normative systems in Latin American constitutions and their current development, it can be affirmed that the solution, of course, is that the study of legal pluralism must be carried out from the perspective of law. This is the only way to facilitate a normative and interjurisdictional dialogue between indigenous law and state law in the strict sense, which will make legal pluralism effective. In Colombia, the Special Jurisdiction for Peace is not only an example of this beginning of dialogue between jurisdictions, but also leads to the conclusion that legal pluralism is constituted as a core element in the new Latin American constitutionalism to guarantee the obligatory and binding nature of indigenous normative systems through dialogue between the civilized nations that make up a state.

Legal pluralism, indigenous rights and the Inter-American corpus iuris

The permeability between state, regional and universal legal systems for the protection of human rights is increasingly evident, materialising a trend of legal pluralism in a multilevel universe of human rights protection. Therefore, it is important to interpret the norms contained in national constitutions and international treaties – that is, the different systems for the protection of human rights – in light of the pro persona principle. In this context, the indigenous issue stands out for its complexity and urgent safeguard, given the past and current scenarios of numerous violations. The indigenous cosmovision must permeate any application of the mechanisms for protecting the human rights of indigenous peoples. In order to better understand this pluralism from the perspective of safeguarding indigenous rights, a brief study was carried out on the constitutionalization of these rights in Latin America and their interpretation in the Inter-American system for the protection of human rights. The question is: what are the main indigenous rights contained in Latin American constitutions? How does the Inter-American system interpret these rights in light of the American Declaration and Convention? What are the protective standards for indigenous rights in the region? For that, the method of approach used was the deductive one and the methodological procedures were in the juridical and systematic dogmatic study. As a result of this research, it was found that there is an entire Inter-American corpus iuris that must be protected, based on the duty of harmonisation imposed by the American Convention, and carried out through the control of conventionality

The Brazilian modernism and the new Latin American constitutionalism: value the native and decolonize

The general objective of this research is to analyze the points in common between Brazilian Modernism and the New Latin American Constitutionalism regarding the valorization of the nativist feeling and decolonization. In methodological terms, the textual language is set via systematic reading. This is an exploratory research. It was used as a technical procedure the survey of bibliographic data, as well as statistical data, so that the research technique used is the bibliographic. Regarding the results and conclusions, it is clear that the appreciation of the native and decolonization are common aspects of the studied movements, since the first touches on the national awareness for the production of art in the country, independent of European models, and the second proposes a decolonization from the rescue of essence in actions to resist domination and exploitation and re-exist.

Legal personhood of Latin American rivers: time to shift constitutional paradigms?

Diverse existing legal paradigms have dealt with the interaction of humans and Nature in different ways. We identify three main lenses through which current constitutional systems in Latin America have operated to resolve conflicts. We focus on rivers as emblematic elements of Nature that offer concrete possibilities to operationalize an emerging paradigm that recognizes legal personhood for Nature. The objective is to examine, from a critical interdisciplinary perspective, the existing paradigms, describe their limits and open the debate to alternative jurisdictional venues for favouring the coexistence of humans and natural systems. Through the comparative analysis of three case studies in Chile, Colombia and Ecuador, we outline the challenges and opportunities offered by an emerging legal tradition, ‘The New Latin American Constitutionalism’, and question what would effectively be different with a change of paradigm towards the recognition of Nature’s rights.

Resistance to territorial and maritime delimitation judgments of the International Court of Justice and clashes with ‘territory clauses’ in the Constitutions of Latin American states

AbstractThis article analyses the growing resistance to judgments of the International Court of Justice arising out of domestic law in Latin America, through a study of challenges to the authority of the Court’s judgments regarding territorial and maritime delimitation in the region. These challenges are based upon the ‘territory clauses’ found in many Latin American constitutions, which were used to set national boundaries following colonial independence. Territory clauses that once developed international law doctrines such as uti possidetis iuris are now being used against prevailing international law rules, in a process described in this article as ‘constitutional resistance’.This article explains the nature of ‘territory clauses’ in Latin America, i.e., clauses that constitutionally define the national territory in reference to international law. It then describes the process of ‘constitutional resistance’, by which local authorities have used these clauses to oppose ICJ judgments, leading to various results, such as non-appearance in further proceedings, constitutionalizing exclusively favourable judgments, deferring the implementation of a judgment to the Constitutional Court or implementing only certain ICJ judgments, while creating legal barriers to the implementation of judgments that, in the State’s view, negatively affect their territory.These challenges based on territory clauses are studied through prominent ICJ cases involving Nicaragua, Honduras, El Salvador, and Colombia. The article also explores how the lack of a strong territory clause eased the implementation of the Peru v. Chile judgment, and how the recent non-appearance of Venezuela in its current ICJ proceedings with Guyana, is partly based on constitutional justifications.

A critical account of Ius Constitutionale Commune in Latin America: An intellectual map of contemporary Latin American constitutionalism

AbstractIus Constitutionale Commune in Latin America (ICCAL) is an academic endeavour that attempts to provide an account of the original Latin American path of transformative constitutionalism, comprising elements from national, transnational and international legal orders, and where the law is placed at the service of the normative trinity of constitutionalism, namely the rule of law, democracy and human rights. In this regard, ICCAL speaks of an Inter-American law that represents a new legal phenomenon, in a region where constitutionalist ideas have allegedly claimed new traction. In this article, I develop two main critiques that can be deemed challenges for an academic project that is still ‘under construction’, and provide an intellectual map of Latin American constitutionalism that could address these critiques and serve as a roadmap for studying potential Latin American contributions to debates around global constitutionalism.

Relationships between ecological restoration and environmental education: a critical view from Enrique Leff's conceptual framework

Ecological restoration (ER) arises from Leopold's environmental ethics in the 1930s. Since about 1970, the discipline was consolidated with exponential growth in social movements and environmental policies. Analysis of the current and future development of the ER is currently on international and national journals, networks, societies, and within environmental public policies. In this last case, to such a degree, it is considered to be one of the rights of nature in the Latin American Constitutions, such as in Ecuador, Bolivia, and in the United Nations priority plan between 2021-2030. However, ER is poorly addressed in the field of environmental education. In this scenario, we consider it appropriate to confront some theoretical frameworks of environmental thought with the meaning and practices of ecological restoration and environmental education. With this in mind, based on a literature review and an interview with Enrique Leff, we present a critical view of the ER around three topics: a) A synthesis of an environmental conceptual framework of Enrique Leff; b) the historical development of ecological restoration, c) the relationships between Leff's conceptual framework, ecological restoration, and environmental education. We conclude that ER has “plasticity” to be included in different rational frameworks. Finally, we propose three historical periods of the ER: the ecocentric period, the scientific-technological period, and a new growing humanistic, creative and critical period in which education plays a central role.

La influencia del Convenio 169 de la OIT en la justiciabilidad de los derechos indígenas a través de la jurisprudencia en los países del nuevo constitucionalismo latinoamericano

El trabajo que se presenta a continuación evalúa la influencia del Convenio 169 de la Organización Internacional del Trabajo (OIT) sobre Pueblos Indígenas y Tribales en la jurisprudencia reciente en materia indígena de los altos tribunales de los países que constituyen el nuevo constitucionalismo latinoamericano: Ecuador, Venezuela y Bolivia. La investigación recoge una muestra sentencias emblemáticas en las que se analiza la influencia del Convenio 169 en la toma de su decisión por parte de los magistrados en pro de los derechos indígenas. La muestra es de carácter cualitativo y no aspiramos a agotar la discusión sino más bien a abrir un debate en torno a la influencia del derecho internacional con carácter vinculante en jurisprudencia de los países del nuevo constitucionalismo latino americano y otros países signatarios de la Convención 169 de la OIT.

НОВАЦИИ СОВРЕМЕННОГО ЛАТИНОАМЕРИКАНСКОГО КОНСТИТУЦИОНАЛИЗМА: (ФЕНОМЕН ИНДИХЕНИЗМА)

The study of the complex processes taking place in Latin American constitutionalism over the past three decades makes it possible to more objectively from the point of view of general legal theory and more accurately methodologically approach the definition of the basic characteristics, constituent elements and content of a new phenomenon called "Latin American neo-constitutionalism" or "new constitutionalism". On the example of innovations in the constitutions of Latin American countries, adopted in the late XX - early XXI centuries, the most typical thing that distinguishes modern Latin American neo-constitutionalism from European and North American constitutionalism is revealed