of leading constitutionalism,"51 made up of the Court and the national legal bodies,
whose objective, ultimately, is the material realization of the guarantees and
integration of the countries of the region around a structure of mutual support. The
dissemination of human rights norms constitutes one of the mechanisms through
which this objective can be achieved.52
71.
I would emphasize that, from the perspective of developing constitutionalism
globally, adding ESCER to constitutional texts is an authentic and unforgettable Latin
American legacy, dating back to the Mexican Constitutional Charter of 1917. As the
doctrine of the Ius Constitucionale Commune has highlighted, what we are seeing,
especially after the broad movement to modify the constitutional systems of Latin
American countries with the decline of authoritarian regimes toward the end of the
20th century and into the 21st century, is the adoption of constitutions that are even
more focused on protecting human rights, with extensive provisions on ESCER.53
72.
Attentive to the open network of interpreters of the Convention of which it is
part, the Court is not oblivious to the developments taking place at constitutional
levels regarding the justiciability of ESCER, illustrated as well by the many citations
in the judgment in question of the precedents of the Constitutional Court of Colombia,
the Supreme Court of Justice of the Nation of Mexico, the Supreme Federal Court of
Brazil, and the Constitutional Court of Ecuador.54
73.
The reciprocal is also true, since the Constitutional Courts have implemented
the precedents of this Court in their decisions on ESCER. For example, in the Brazilian
Federal Supreme Court, within the framework of the recent proceeding of the Hearing
on Failure to Comply with Fundamental Precept in matters of environmental rights
(ADPF no. 708), one of the illustrious judges of the Brazilian Constitutional Court
invoked, in open dialogue with the hermeneutics practiced in this Court, Advisory
Opinion 23/2017 and the Case of Lhaka Honhat v. Argentina (2020) when issuing
their opinion.55
74.
In this context, I understand that given the close relationship with states’
constitutional courts, the Court’s exercise of its institutional function, including by
interpreting and applying the Convention’s provisions on ESCER, must take into
account any impacts on constitutional systems and the regional reality.
75.
In my thinking, this means that the consistency and integrity of the Court's
findings have a knock-on effect at the national level. This repeated finding by this
Court—the final interpreter of the Convention—of the justiciability of ESCER has
resulted in a generalized absorption of this understanding by the courts of the states
Parties to the Convention, as one would expect would happen as a result of the
dialogue between the different judicial bodies.
BOGDANDY, Armin von; MAC-GREGOR, Eduardo Ferrer; ANTONIAZZI, Mariela Morales;
PIOVESAN, Flávia; SOLEY, Ximena. “Ius Constitutionale Commune en América Latina: un enfoque regional
del constitucionalismo transformador” (pgs. 17-51). BOGDANDY; ANTONIAZZI; MAC-GREGOR (eds.). Ius
Constitucionale Commune en América Latina: Textos básicos para su comprensión. Mexico: Instituto de
Estudios Constitucionales del Estado de Querétaro; Max Planck Institute for Comparative Public Law and
International Law, 2017. pg. 20.
51
52
Ibidem. pg. 20.
53
For example: Brazil (1988), Argentina (1994 reform), Colombia (1991), Paraguay (1992), Peru
(1993), Ecuador (1998, 2008), Venezuela (1999), Bolivia (2009), Mexico (2011 reform) and, later, Chile,
whose new constitution, which is in the process of being enacted this year, 2022, grants broad protection
to ESCER.
54
Judgment, para. 69-73
Supreme Federal Tribunal. ADPF nº 708, Rapporteur Judge Luis Roberto Barroso. Court of July
04, 2022. Voto Vogal of Minister Edson Fachin.
55
14