Global South in Comparative Constitutional LawSymposium

Interrogating “Constitutionalism of the South” and New Pathways for Research: The Case for a Central America in the Global Debate

Latin American constitutional scholarship is on the rise in the Anglophone world. New collaborative works (such as Dixon and Ginsburg’s new comparative constitutional law edition (2017), the Borges et al ‘Law and Policy’ edition (2017), and Couso et al ‘Cultures of Legality’ (2010), as well as individual monographs (like Gargarella (2013) and Mirow (2015)), provide a quality introduction to the region in English.

Latin Americanism in Latin American Comparative Studies

Nevertheless, underlying this work are certain nuanced visions of Latin America that I feel that need to be pointed out. These visions may certainly be catalogued, as historian Mathew Brown does in Latin American historical collections, as a history of disconnection, generalist narratives, and ‘Latin Americanism’. Brown defines ‘Latin Americanism’ as an approach that relegates to the periphery Latin America; this approach sees the region as a mere actor in the shadow of global constructions. I would also add that the region is frequently personified in the singular and disconnected experiences and narratives of certain commonly known states. In particular, although Dixon and Ginsburg’s latest edition attempts to provide in-depth knowledge of the region, it falls short of bringing the entire picture together, by relegating diverse and rich experiences and assimilating them into generalist narratives and understandings of the region. The contributions to this volume (as well as those of previous editions) pave the way to perpetuate a ‘Latin Americanist’ view of the region; a view of Latin America as a singular – almost homogenized – region. This is borne of the contributors’ focus on certain similar ‘facts’ of constitutional development by Latin American states (while ignoring substantive differences), which are then described under certain regional “narratives”. This selective focus on the experiences of certain countries (such as Brazil, Chile and Colombia) as regional examples devalues the broader understanding of and about the region and neglects to understand the particularities of its internal dimensions, their histories and struggles, and how they fit into the bigger picture or global space. As an answer to this Latin Americanist approach, then, we must turn to a reading of Latin America as constructions beyond the usual narratives and examples, reading Latin American states as melting points of the international, regional, subregional and domestic settings and pressures. This then provides a reading of subregions and states. For example: Central America may be taken not as a complementing picture of the broader Latin American region, but as a significant focus of study for research in global debates.

Bringing Central America to the Light

Central America is usually a ‘black hole’ of Latin American studies, even in Spanish scholarship. This subregion is usually referenced, if referenced at all, as affording quantitative examples to support a regional standard or narrative by authors, with minor exceptions. At a broader regional level, this particular subregion has very low representation in regional bodies. When it comes to academic texts, authors from this subregion are most often omitted from consideration, which curtails further any attempt at experiential richness. For this reason, let me shed some light (in a very brief manner) on the initial depiction of this subregion.

For starters, it is known that this subregion, unlike the rest of Spanish Latin America, achieved independence without bloodshed or battle. Thus, in a negative way, it consolidated a stronger conservative character, seen today particularly in the overall failure of states in the region to recognise of same-sex marriage. Also, and as I have stated elsewhere, foreign influence (namely the US and international law), has been instrumental in the subregion’s constitutional development. Since the early 19th century Central American states have concluded treaties as between themselves, under the auspices of the US, in order to curtail the effects of caudillismo or presidentialism in the region, even if it was to protect its interest in the construction of the Panama Canal and later against the expansion of communism. As a result, the subregion created the first international organisation in Latin America and court of its kind, both international and supranational, in 1907. Secondly, the recognition of social and economic rights in Central America came in conventional form, rather than constitutional, with the ratification of the Central American peace treaties of 1923, which also involved the first attempts at creating a uniform customs regime for the region. These rights retained pride of place in social revolutions and constitutional developments in the region during the mid to late 1940s. However, due to foreign influence, Costa Rica was the only state that continued on this track, whilst El Salvador and Guatemala became subjects of US backed coup d-Etats. These events created a further differentiated, but richer, context to analyse in this subregion, particularly Costa Rica’s exceptionalism. Additionally, Hunneus, as well as other authors, neglect the fact that the Central American constitutional movement came before much of the South American wave (with the exception of the 1980 Chilean Constitution), and provided a new impetus for the development of specialist constitutional bodies and constitutional clauses recognising international human rights instruments as being of (or even superior to) constitutional rank. Moreover, during this period of constitutional transformation, foreign intervention (then by a friendly Mexico), South American countries and the EU established a regional pathway to the creation of a new ‘practice’ on ‘tolerated’ intervention and a new integration scheme embedded in democracy-building and human rights. As part of this new integration scheme, a new regional court was given the capacity to decide conflicts between ‘fundamental powers of the state’, a historical legacy since 1907. Another result of this integration movement was the ratification of the Central American Democratic Charter of 1995, which was later transplanted into the Inter-American Democratic Charter of 2011. These instruments were of a new type, one that ‘tolerates’ foreign intervention in the region in order to keep constitutional regimes in check. What this shows is that Central American states have moulded the limits of the sovereignty in the broader region via the interaction between constitutional and international law, creating a multi-tier regime for the recognition and protection of constitutional structures embedded in representative democracy and human rights. This openness to international law by Central American states has even led to the creation of foreign prosecutorial bodies to combat corruption within Guatemala and Honduras, which bodies have pushed for constitutional reform in these states. This is a feat that most South American states would consider unbearable. Finally, this new constitutional driver led, contrary to what Hunneus claims, to the first transplant experience of the ‘constitutional block’ into Central America through its adoption by Panama, later being conceptually expanded by Costa Rica’s Sala Cuarta. Moreover, with the consolidation of constitutional bodies in the subregion, there has been a rise in backlashes to the Inter-American Human Rights Court, including by Costa Rica, renowned for its high use of comparative sources and reliance on international human rights instruments. This largely reflects earlier backlashes by other states, such as those of the Guatemalan and Salvadorian constitutional courts.

Setting Out a Research Agenda away from Latin Americanism

The collected editions and monographs mentioned above represent a first and well consolidated foundation for Latin American constitutional studies. However, it is not my intention to make a case for the study of Central American legal systems in order to complement a ‘Latin Americanist’ vision or constitutional narrative of the region. Rather, it is my intention to interrogate this Latin Americanist view and narratives of the region, and to depict subregions, such as Central America, as new pathways for substantive examination and research as topics relevant to the global space. Therefore I propose to study this subregion (which has, to date, been seen as ‘in the dark’) for substantive contribution to topics, including Regionalism, post-conflict state and regional-building, Global Constitutionalism, Constitutional Pluralism, the role of Courts and international bodies in securing constitutional transitions and rule of law, foreign intervention and constitutional design and many others. In addition, Central American should be studied for insights into why this particular subregion, as well as others, has and continues to be neglected in the study of narratives and the understanding of Latin America beyond Latin Americanism. Only then we may leave behind these ‘narratives’ and provide substantive accounts of Latin America in the global space.

Carlos Arturo Villagrán Sandoval is a PhD candidate in Melbourne Law School and member of the Constitution Transformation Network –CONTRANSNET-.

Cite as: Carlos Arturo Villagrán Sandoval, “Interrogating “Constitutionalism of the South” and New Pathways for Research: The Case for a Central America in the Global Debate”, Völkerrechtsblog, 7 August 2017, doi: 10.17176/20170807-115703.

ISSN 2510-2567
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