Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

The article suggests a link between constitution-making and capitalist globalisation processes. The nexus would be provided by constitutional transfer as a part of comparative legal studies. Indeed, nowadays they are not only based on the interplay of the national and the inter-national, but also involve the trans national dimension. The essay will attempt to demonstrate the connection by looking at some empirical facets related to the information on foreign constitutions that some transnational consultancies offer to the Chilean constitution-making process. Conclusions show that only certain predominant legal forms are promoted and transferred. This is because they are functional to the unfolding of the global market,

Political regulation is a crucial area of democratic design. Considering the self-interest of legislators, the Judicial Branch appears to be an interesting actor to fulfill the impartiality requirements to ensure free and fair elections. Using the Brazilian experience, I show the role of Legislative Branch and judicial decisions on three major fields (party system, campaign financing, and electoral communication) after 1988 re-democratization. The analysis evidences the lousy performance of judicial electoral authority on improving electoral competition. Due to the peculiar conformation of Brazilian Electoral Justice, there is a concentration of election governance activities, and their decisions are bulwarked from judicial review. In this constitutional scenario, the judicial alternative is the wrong choice, and it is better to trust a pluralistic Parliament on the building of electoral rules.

Transitions to democracy from authoritarian governments imply a rupture when passing from a State with Law to a State of Law. However, not all processes are rupturist, they can be reformist and this occurs when the personnel appointed in the non-democratic era continue to occupy the «State apparatus». This situation was experienced in Chile. The transition began with the plebiscite of October 5, 1988, in which the citizens rejected the political project of the dictatorship and, subsequently, with the victory of the Concertación por la Democracia in the 1989 elections, which implied support for the rupturist theses. However, a partial constitutional reform had been agreed upon, and the leaders of the Concertación, both Christian Democrats and Socialists, paralyzed any kind of mobilization and opted to implement reformist policies.The behavior of the Concertación during the presidencies of Aylwin and Frei Ruiz Tagle, Christian Democrats, and Lagos and Bachelet, Socialists, produced unquestionable changes in a democratizing sense, dismantling the «authoritarian enclaves», giving rise to policies on the past (Rettig Report and Valech Reports), improving relations with the Armed Forces, in short, seeking «democratic normalization». But at the same time, it proved incapable of creating the Welfare State, of dealing with social inequalities, contributing to the deregulation of the economy. The State abandoned any social function. The result was the growing distrust of young people towards their rulers, the increasing awareness of women of their discrimination in society, and the inability to deal with the indigenous issue. Young people, women and indigenous people felt forgotten and waited for their opportunity to use democratic means to bet on the re-foundation of the State, that is to say, to carry out the rupture that had not taken place during the transition.The mobilizations that occurred between October 2019 and March 2020 expressed the rejection of economic inequalities, low pensions or the malfunctioning of the health system. But also, and very forcefully, the weariness with the political class. The immobility of the political structure of the transition contributed to the collapse of the model.Young students, women and indigenous people staged a massive protest which, together with the unfortunate initial declarations of President Piñera and his repressive response, managed to break the political regime formalized since the transition, forcing the re-foundation of the State. The President of the Republic, overwhelmed, rectified the situation by offering profound changes, safeguarding the institutional framework. Everything, however, seemed partial, insufficient and limited in the face of a permanent mobilization, backed by the citizenry and with a La Moneda Palace whose legitimacy was at rock bottom. On November 15, a transversal agreement between the Government and Congress, signed by most of the parties with parliamentary representation, decided to call a national plebiscite to define whether a new Constitution would be drafted and what mechanism would be used.The national plebiscite held on October 25, 2020, had a turnout of just over 50 percent. 78.3 percent wanted a «new Political Constitution» and 79 percent wanted it to be drafted by a «Constitutional Convention», which would not be organized by members of Parliament. The next step, the election of its members, confirmed the political break with respect to 1990.In May 2021, the election of the 155 members of the Convention was held. The turnout was very low. The parties that had governed since 1990 obtained 37 members from the right and 25 from the center left. Separately they did not reach the necessary third (52) to approve any proposal. The big winners were the left of the socialist party, 28 seats and the independents, 48. The latter («People’s List») are linked to the protest mobilizations launched in 2019. Finally, the «native peoples» are allocated 17 seats.The failure of the traditional parties (Christian Democrats and Socialists) or right-wing ruling parties (UDI or Renovación Nacional) was evident, highlighting the popular clamor against those who had hitherto exercised the government. The results of the presidential elections have been in the same direction. Summary:1. CONSTITUTIONS AND CONSTITUENT PROCESSES IN CHILE. 2. THE MILITARY DICTATORSHIP, THE AUTHORITARIAN CONSTITUTION OF 1980 AND THE PLEBISCITE OF OCTOBER 5, 1988. 3. TRANSITION AND DEMOCRACY IN CHILE. CONSTITUTIONAL REFORMS. 4. THE EXHAUSTION OF REFORMIST DEMOCRACY AND THE PATH TOWARDS THE REFOUNDATION OF THE STATE. 

For three decades now, both the Inter-American Commission on Human Rights (hereinafter CIDH) and the Inter-American Court of Human Rights (Inter-American Court) have heard of reports and complaints about the violations of rights that fall systematically on indigenous persons and their communities. However, being the indigenous territory the element that has encountered the most difficulties on the part of western society for its recognition, international standards in this regard have been developed gradually and fractionally. At the same time, these standards have been accompanied by the elaboration of fragmented conceptualizations, which make it even more difficult to build a coherent and comprehensive normative and jurisprudential framework of the situations of violence and impairment that fall on indigenous peoples and the territories which they belong.However, in most of the Latin American States the impulse of multiculturalist policies regarding the existence of these collective subjects is observed, accepting in a limited way the rights already recognized and established at the international level. These policies fail to fully encompass the true need of indigenous peoples, which relies on the full exercise of their rights through free self-determination. In this way, it is expressed that the need for a pluralist and intercultural State whose objective is to generate the necessary conditions for the development of the various life systems of indigenous peoples, includes as a basis the protection, ownership and care of the territory, as well as both the understanding, recognition and dialogue between western culture and the cultures of indigenous peoples.The objective of this work is to investigate the standards of the Inter-American Court of Human Rights in the matter of indigenous territory, analyzing their scope and limitations. In this sense, we will focus on the jurisprudence of the Inter-American Court, since, being the regional jurisdictional body and last instance of the Inter-American Human Rights System, it has been in charge of setting the content and scope of the obligations of the States, determining international responsibility and subsequent reparation arising from the breach of said obligations. Likewise, the judgments emanating from the Court acquire the character of mandatory compliance, in such a way that the precepts established by the Court in its contentious function guide the actions of the States, which must cease the violations of rights, adapt their internal legislation and repair to indigenous communities. For the above, the recognition of the rights of indigenous peoples under the paradigm of multiculturalism will be analyzed. Subsequently, the common attributes that indigenous peoples in Latin America have given to the notion of territory will be reviewed, to finally analyze the jurisprudence of the Inter-American Court in this regard.Finally, it is concluded that the recognition of the collective property of indigenous peoples by inter-American jurisprudence constitutes a significant advance for their protection and defense. However, the results show that the lack of study and understanding based on the complexity of the meaning, both physical and symbolic, of the indigenous territory, and the exercise of national multicultural policies, produce that indispensable elements of the constitution of the indigenous communities continue to be omitted, such as autonomy or self-government. Summary:I. INTRODUCTION. II. MULTICULTURALISM AND LEGAL RECOGNITION OF INDIGENOUS PEOPLES. III. THE TERRITORY FROM / FOR INDIGENOUS PEOPLES. IV. STANDARDS OF THE JURISPRUDENCE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS ON INDIGENOUS TERRITORIES. V. ANALYSIS: SCOPE AND LIMITATIONS. VI. CONCLUSIONS.

National identity is a legal category of European Union law which is being controversially interpreted in a sovereigntist vein by some political leaders as well as by certain national Constitutional Courts in recent years. We are witnessing a recent judicial trend in line with the rise of autocratic and populist political movements which defend a model of illiberal democracy in our continent, particularly in Hungary and Poland. It is therefore held an extensive conception of national identity seeking to articulate an absolute and imponderable mechanism of national resistance to the action of European Union law. Under these circumstances, this article aims to critically analyse this national jurisprudence, which raises serious doubts of compatibility with a historical, literal and systematic interpretation of the Treaties, especially with the values of the European Union. To this end, a study of the origins and historical evolution of this provision, a categorisation of the notion of national identity, a national and supranational jurisprudential analysis, and the concept of European identity will be addressed in order to question the deflected jurisprudential construction promoted by some national Constitutional Courts from Eastern Europe.   Summary:I. INTRODUCTION. II. BRIEF HISTORICAL BACKGROUND AND NOTION OF NATIONAL IDENTITY. 1. Origins and evolution of the national identity clause in European Union law. 2. Notion of national identity: two opposing doctrinal trends. 2.1. Constitutional notion. 2.2. Historical and cultural notion. III. NATIONAL IDENTITY FROM A JUDICIAL PERSPECTIVE: SUPRANATIONAL AND CONSTITUTIONAL CASE LAW. 1. Supranational case law. 2. Constitutional case law. 2.1. A general comparative overview. 2.2. First case study: the Hungarian legal experience. 2.3. Second case study: the Polish legal experience. IV. EUROPEAN UNION FUNDAMENTAL VALUES: AN ABSOLUTE LIMIT TO THE NATIONAL IDENTITY CLAUSE. V. CONCLUSIONS.

The American Convention on Human Rights contemplates the procedure to be amended. Beyond the failed attempt of 1993, the basic instrument of the region on human rights has never been amended since it came into force more than forty years ago (1978). That scenario, with its possible reasons and consequences, is outlined in the present work, with the purpose of rethinking the interpretation of conventional art. 76 and suggest the need for citizen participation in the construction of future amendments. The perspective adopted focuses on the form of the amendment, its democratic legitimacy, from a position that understands that the foundation of the general evolution of the Inter-American system and of the specific protection mechanism is the reform of the conventional text. The reform of rules of procedure used so far, as a technique for change, is complementary and insufficient by itself. Summary:I. INTRODUCTION: THE UNTOUCHED AMERICAN CONVENTION. II. THE PROCEDURES FOR CHANGING THE AMERICAN CONVENTION. 1. Power to include other rights and freedoms. 2. Amendment procedure. 2.1. Extensive purpose. 2.2. Entitled subjects. 2.3. Entry into force. 2.4. The failed amendment project of 1993 and difficulties that arose in the procedure. 3. Additional Protocol. 3.1. Limited purpose. 3.2. Entitled subjects. 3.3. Entry into force. 3.4. The impulse of 1969. 3.5. The 1988 Protocol: economic, social and cultural rights. 3.6. The 1990 Protocol: abolition of the death penalty. 4. Finally, an international instrument open to change. III. IN FRONT OF THE MIRROR: THE EUROPEAN CONVENTION EVOLVED. IV. ADJUSTMENTS AT THE SECOND LEVEL: INSUFFICIENCY OF THE RULES OF PROCEDURE REFORM. V. AMENDMENT AND POPULAR PARTICIPATION. 1. Some cases of participation at the international level. 2. Possibilities of participation in the amendment of the American Convention. VI. CONCLUSIONS.

The paper examines the procedural turn of the Strasbourg case law in response to the claim that the European Court of Human Rights should have a more subsidiary role in the exercise of its function. After outlining the varied dynamics of the procedural rationality control, I distinguish two conceptions of the subsidiarity principle, the statist and the cooperative conception, and I argue that we should focus on the demands of cooperative subsidiarity to assess whether the procedural turn is good news for human rights in Europe. The article’s main claim is that such procedural control may contribute to the legitimacy and efficacy of the system of the European Convention on Human Rights insofar as it proves to be useful to ensure compliance with three member states cooperative responsibilities: impartiality, culture of justification and conventional perspective. At the same time, I argue that some systemic considerations allow us to conclude that the procedural review should only have a complementary place in the application of the Convention. Summary:I. INTRODUCTION II. THE PROCEDURAL TURN IN THE STRASBOURG CASE LAW. III. LEGITIMACY AND SUBSIDIARITY: III.1. Statist subsidiarity and cooperative subsidiarity. IV. THE PROCEDURAL RATIONALITY CONTROL AND COOPERATIVE SUBSIDIARITY: IV.1. Procedural review, cooperative responsibilities, and division of labour: a) The responsibility of impartiality. b) The responsibility of consolidating a culture of justification. c) The responsibility of adopting a conventional perspective. V. THE PROCEDURAL TURN AND SYSTEMIC CONSIDERATIONS.

The article is inserted in the studies about the Chilean civic military dictatorship and the characterization of the exercise of power by General Pinochet as limited. We maintain that the thesis of limitations also has an explanation constructed from the legal historical point of view: they can be understood as a case of projection of the Indian doctrine of good governance. We will study the phenomenon in the context of the approval of Constitutional Act number 2 of 1976 to argue that the phenomenon of limitation is understandable in the light of the thesis of the historical constitution (which dispenses with the doctrine of classical constitutionalism). Summary:1. INTRODUCTION. 2. HISTORICAL CONSTITUTION, CONSTITUTIONAL ACT NO. 2 OF 1976 AND PURPOSES OF THE EXERCISE OF POWER. 3. FORMAL RULE OF LAW AND HISTORICAL CONSTITUTION. 4. LEGITIMATION OF THE POWER TO DICTATE FUNDAMENTAL NORMS BASED ON THE HISTORICAL CONSTITUTION AND CATHOLIC NATURAL LAW: THE CONSTITUENT POWER AS AN INSTRUMENT. 5. OF THE POWER OF RESTORATION AND THE DISCREDITING OF THE WRITTEN CONSTITUTION. 6. POLITICAL ROLE OF CONSTITUTIONAL ACTS. 7. EXCURSE. HISTORICAL CONSTITUTIONALISM AND HORROR VACUI TO THE REFOUNDATION IN THE CURRENT CONSTITUENT PROCESS. 8. CONCLUSIONS

In the framework of the Chilean constituent process, and in the face of ideas that propose replacing the current Fundamental Charter with one that considers a social State principle or the enhanced justiciability of social rights, the purpose of this article is to explain the dogmatic limits to the justiciability of this type of prerogatives and why an improvement of this type could only translate into a relative improvement in the enforceability of the respective benefits. In this framework, an improvement that respects at the same time the competences and responsibilities of the authorities, the limits of the jurisdictional work and the technical characteristics of social rights, could consist in the inclusion of a collegiate and consultative body that, as in other countries, would allow these demands to be considered in a timely manner within the legislative process, which, together with respecting the need for social policies to have a democratic origin, would help the adjudicatory work of the judge to focus on the proper legal interpretation of the relevant constitutional provisions. Summary:1. INTRODUCTION. 2. WHAT ARE SOCIAL RIGHTS. 3. SOCIAL RIGHTS AS DIRECTLY JUSTICIABLE PROVISIONS. 4. THE PROBLEM OF HANDING OVER THE DEFINITION OF SOCIAL POLICIES TO THE JUDGE. A) The «indefinition» of Social Rights. B) The Ideological Component. 5. SOCIAL RIGHTS AT THE COMPARATIVE CONSTITUTIONAL LAW LEVEL. 6. SOCIAL RIGHTS IN THE 1980 POLITICAL CONSTITUTION. A) The Principle of Subsidiarity and Social Rights. B) The Constitutional Regulation of Social Rights: The Example of the Right to Health. 7. OUR CONSTITUTIONAL PROPOSAL: ECONOMIC AND SOCIAL COUNCIL. 8. CONCLUSIONS

This paper deals with the doctrine emanating from the jurisprudence of the European Court of Human Rights that has enshrined the prohibition of direct discrimination based on sex.The cases of direct discrimination that have affected women are first studied in areas such as labor and social benefits (with a specific study of the recent Napotnik Case against Romania) or medical practices. The work continues with a section dedicated to gender violence.Subsequently, some cases in which the victim has been the man in areas such as the benefits related to the possession of children, the widow’s pension, the provision of services or prison sentences and the penitentiary regime are analyzed.And the main conclusion reached in this work is that, without questioning the important work that the Strasbourg Court has carried out against inequality and direct discrimination based on sex, sometimes the jurisprudential approaches, and even the important interpretative findings of the Court, have also been clouded by stereotypes related to the principle of gender equality.This work was carried out within the framework of the Research Project RTI2018-100669-B-100 «GEN-DER: Generating an interpretation of the Law in terms of gender equality», framed in the State Program of R +D + i Oriented to Challenges of Society - Ministry of Science and Innovation (2019-2021).