In the next few months, the Inter-American Court of Human Rights (I/A Court) shall issue an advisory opinion in order to clarify whether presidential reelection is a right arising from the American Convention on Human Rights and, if so, whether it can be restricted. This article addresses one of the aspects which will probably be elaborated upon in said opinion, that is to say the inadequate use of the conventionality control with a view to modifying, by means of a judicial decision, constitutional provisions whose scope should only be scrutinized by mechanisms of constitutional creation or reform under the rule of law.
Until the beginning of this century, the judicial activity of courts in Latin America with regard to controversies related to the regulation of presidential elections were limited to the adjudication of formal requirements of the legislative process. In exceptional cases, national courts were called upon to determine the date of entry into force of constitutional reforms or new Constitutions which introduced the possibility of presidential reelections.
On 6 February, 2020, the Inter-American Court of Human Rights (IACtHR) issued a judgement in the case of the Indigenous Communities Members of the Lhaka Honhat (Our Land) Association, vs. Argentina. The ruling reiterates the inter-American standards on communal land and territorial rights of indigenous peoples. This is a landmark decision establishing that economic, social, cultural and environmental rights (ESCER) of indigenous peoples are autonomous and judicially enforceable rights before the IACt-HR. Although the main controversy revolves around the absence of land titling, the petitioners alleged a series of impacts derived from grazing activities, illegal logging, and the installation of fences by non-indigenous people in the territory of the communities.
This article analyses the most relevant excerpts of the ruling, highlighting controversial aspects over the judicial enforceability of new rights recognised under Article 26 of the American Convention (ACHR), related to economic, social, cultural, and environmental rights (ESCER). We also comment on important advances in the area of reparation and obligations to ensure indigenous peoples’ rights in the face of environmental degradation perpetrated by settlers. Finally, we briefly comment on the contribution of the amici curiae in the reasoning present in the sentence and votes of Judges Ferrer Mac-Gregor and Sierra Porto.
Stephany Caro Mejia and Ricardo Abend Van Dalen, DPLF Interns
In a landmark and controversial decision, the U.S. Supreme Court held in Citizens United v. FEC (2010) that the government may not restrict political speech on the basis of the speaker’s corporate identity (regardless of for-profit or non-profit status) because corporations, like natural persons, have a First Amendment right to free speech.