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When Illiberals Embrace Human Rights

  • Alexandra Huneeus (a1)

Extract

A topic motivating much research since 2016 is the turn away from international law caused by a surge in non-liberal and nationalist governments across the world. In the realm of human rights law, scholars have noted how states are now more apt to repudiate, resist, or simply ignore their human rights obligations. This essay makes a different cut into this topic. It considers not how non-liberal actors reject human rights law, but rather what happens when they embrace it. International human rights law in Latin America—often understood as a means of promoting a cosmopolitan, liberal political order—is also being harnessed toward other types of political projects. This raises the question of how necessary the link is between human rights and political liberalism: is non-liberal engagement an existential threat, or can human rights law have a thinner commitment to liberal principles than does, for example, national constitutional law? As the American Convention on Human Rights (ACHR) turns fifty, this essay argues that the human rights law of the Americas is open-ended enough that it can incorporate, and has at times incorporated, non-liberal concerns and norms without losing coherence or legitimacy. Further, this may be an apt survival strategy, albeit not the only one, for the region's human rights institutions in our time.

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Copyright

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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1 “Political liberalism” here is used in the classic sense of a political theory or practice that prioritizes individual liberty and limited government, such that encroachments on liberties must be justified in terms of individual liberty. Liberal societies are characterized by constitutionalism, democracy, equal rights, and the rule of law. The term “non-liberal” refers to all governments, ranging from authoritarian to socialism to communism, that prioritize projects other than individual liberty.

3 Klaus Dykmann, Philanthropic Endeavors or the Exploitation of an Ideal? The Human Rights Policy of the Organization of American States in Latin America (1970–1991) (2004).

5 For a similar argument, see Alejandro Rodiles, Is There a Populist International Law (in Latin America)?, 49 Neth. Y.B. Int'l L. 69 (2019).

6 David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189 (2013).

7 Plurinational Constitutional Tribunal, Nov. 28, 2017, 0084/2017, Gaceta Plurinacional Constitucional (Bolivia).

8 American Convention on Human Rights (“Pact of San Jose, Costa Rica” (B-32)), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 UNTS 123; American Convention on Human Rights art. 23, Nov. 21, 1969, 1144 UNTS 143.

9 Id.

10 David Landau & Brian Sheppard, The Honduran Constitutional Chamber's Decision Erasing Presidential Term Limits: Abusive Constitutionalism by Judiciary?, Int'l J. Const. L. Blog (May 6, 2015); see also Mauricio Guim & Augusto Verduga, Is Ecuador Heading Towards a Constitutional Crisis?, Int'l J. Const. L. Blog (Nov. 1, 2017).

11 David Landau et al., Term Limits and the Unconstitutional Constitutional Amendment Doctrine: Lessons from Latin America, in Politics of Presidential Term Limits (Alexander Baturo & Robert Elgie eds., forthcoming).

13 See, e.g., Corte Constitucional de Colombia [Colombian Constitutional Court], Apr. 5, 2018, T-622/16, Gaceta de la Corte Constitucional [G.C.C.] (Colom.).

14 The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/18, Inter-Am. Ct. H.R., (ser. A) No. 23 (Nov. 15, 2017).

15 See, e.g., Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations and Costs, Dissenting Opinion of Judge ad hoc Alejandro Montiel Argüello, Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001).

16 See generally Rodiles supra note 5 (discussing ecocentric rights as an example of populist international law).

17 See supra note 1.

18 See Landau, supra note 6.

19 See, e.g., id.

20 Human rights law is not meant to lock in issues away from politics, but rather to “build dynamic systems” that “evolve the full meaning and concrete implications of the principles” they lay down, “in response to more or less broad coalitions of actors.” Daniel M. Brinks & Abby Blass, The DNA of Constitutional Justice in Latin America: Politics, Governance, and Judicial Design 8 (2018).

When Illiberals Embrace Human Rights

  • Alexandra Huneeus (a1)

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