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Treaty Exit and Latin America's Constitutional Courts

  • Alexandra Huneeus (a1) and René Urueña (a2)
Extract

Constitutional courts in Latin America have used judicial review to enhance the relevance of international law in recent years. Some scholars even speak of a growing “constitutionalization of international law” in the region. But these domestic courts can also act as gatekeepers that blunt or entirely deflect the domestic impact of international law. This essay explores three recent episodes in which constitutional courts joined or led efforts to escape treaty obligations: the Venezuelan Supreme Court's judgment urging the Chávez Administration to denounce the American Convention of Human Rights on constitutional grounds, which Chavez then did in 2012 (a court-inspired treaty exit); the Colombian executive's 2013 petition to have Colombia's acceptance of the International Court of Justice's (ICJ's) jurisdiction under the Pact of Bogotá declared unconstitutional (a court-legitimated treaty exit); and the Dominican Republic (DR) Constitutional Tribunal's 2014 judgment holding that the DR's acceptance of the jurisdiction of the Inter-American Court of Human Rights (IACtHR) had been unconstitutional (a court-led treaty exit).

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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2 Tribunal Supremo de Justicia de Venezuela (Sala Constitucional), Sentencia n° 1939 del 18 de Diciembre de 2008 (Exp. 08-1572).

3 Letter from Nicolás Maduro, Venezuelan Foreign Minister, to José Miguel Insulza, OAS Secretary General (Sept. 6, 2012) (on file with author).

6 Territorial and Maritime Dispute (Nicar. v. Colom.), 2012 ICJ Rep. 624 (Nov.19).

7 Baja favorabilidad de Santos por fallo de La Haya, Caracol Radio (Nov. 28, 2012) (Colom.).

9 The Pact of Bogota was ratified before the 1991 Constitution. The Colombian Constitutional Court has held that constitutionality of treaties is to be assessed under the Constitution in force at the moment of the decision. See Corte Constitucional [C.C.] [Constitutional Court], agosto 10, 1998, Sentencia C-400/98 (Colom.).

10 C.C., mayo 2, 2014, Sentencia C-269/14 (Colom.).

11 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Preliminary Objections of the Republic of Colombia vol. I, para 2.46 (Dec. 19, 2014).

13 Tribunal Constitucional de la República Dominicana, Sentencia TC/0256/14 (2014).

15 Vienna Convention on the Law of Treaties arts. 27 and 46(2), May 23, 1969, 1155 UNTS 331.

16 Darío Villarroel, Derecho de los Tratados en las Constituciones de América 171–220 (2014).

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  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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