MULTILEVEL CONSTITUTIONALISM AND OTHER “ISMS” IN SOUTH AMERICA TESTING THE THEORY OF MULTILEVEL CONSTITUTIONALISM ON THE EXAMPLE OF THE REGIME UNDER AMERICAN CONVENTION ON HUMAN RIGHTS

Abstract

Primary goal of the article is the comparison of several aspects of constitutionalism in South America with its european equivalents with particular attention on the existing parallel functional ties typical for the theory of multilevel constitutionalism. The secondary goal is to map constitutional developments in a region of South America that occur under the regime of American Convention on Human Rights in order to draw existing parallels between the judicial activism of the Court of Justice of the EU, European Court of Human Right and Inter-American Court of Human Rights. Subject to the analysis are also the thoughts of transformative constitutionalism, which heavily influenced the present state of inter-american constitutionalism. Regime of the American Convention on Human Rights oscillates between monism with primacy of international law and constitutional pluralism. This tension is best described by the theory of multilevel constitutionalism. The theory conceptualizes relations arising from the application of the EU law and its member states and is also capable of explaining the specifics of the application of the European Convention on Human Rights. This dimension is important, because American Convention on Human Rights and Inter-American Court of Human Rights are in many ways heavily influenced by the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. In connection to this, compatibility of the observed spillover of the multilevel protection of human rights and fundamental freedoms with the regime of the European Convention on Human Rights are tested. The research reveals new elements for the conceptual analysis of vertical and horizontal relationships that shape the connections between complementary constitutions at different levels of positive law. These elements are identified both in the European ‘Bermuda Triangle’ and in the South American legal theatre. Article arrives at the conclusion, that the theory of the multilevel constitutionalism finds fertile soul in the environment where, using Dworkins terminology, (human) rights are taken seriously and represent the fundamental goal of international cooperation in the culturally pluralistic legal space.