Open Access journal, biannual publication. Is aimed towards an academic interdisciplinary audience. The journal seeks to publish research results from the forefront of legal scholarship about Latin America. University of the Andes Law School (Colombia) | The Division of Legal Studies at CIDE (Mexico)
The Publicness of Public International Law Seen Through Schmitt´s Concept of the Political
This contribution aims at advancing a public law approach to international law by engaging with Carl Schmitt’s Concept of the Political. First, it hereby explains this approach in light of the current nationalist backlash against international law and governance. Second, Schmitt’s text helps reflecting the methodology of that approach, as of public law theory in general. Third, building blocks of international public law such as the analytical concept of public authority as well as the normative concepts of inclusive publicness and common good will be framed against Schmitt’s antagonistic concept of the political.
Copyright (c) 2018 Armin von Bogdandy https://creativecommons.org/licenses/by-nc-nd/4.0
Latin American airspace revisited: Exploring drones as regulatory subject
The emergence of unmanned aerial vehicles (UAV) or drones, as a tool for management of emergency situations, public order and of human, environmental and wildlife security in Latin America raises a host of regulatory and ethical challenges. Based on insights from the Science and technology and the socio-legal studies literatures, the article explores the logic through which drones impose themselves as regulatory subjects. For understanding that logic, we follow a four-step inquiry: a mapping of contemporary usages, interests and public concerns; a scoping of regulatory approaches; a discussion of how drones are given ‘jobs’ through the production of specific problematizations and solutions; and an argument on how airspace – as an inherently malleable concept – is particularly permeable to a variety of regulatory priorities. We argue that the Latin American drone regulatory airspace is a non-systematic reaction to a reality shaped by different actors vested with political powers of different nature.
Copyright (c) 2018 Kristin Bergtora Sandvik, Bruno Oliveira Martins https://creativecommons.org/licenses/by-nc-nd/4.0
Reconceptualizing Property in Transition to Peace: The Role of the Land Restitution Jurisdiction in the Caribbean Coast of Colombia
By doing qualitative analysis of judicial rulings from land restitution judges in the Colombian Caribbean region, this paper seeks to explore some of the elements that have allowed for the expansion of the concept of property in the Colombian transitional context. Reviewing the role of judges and rulings allows for a deeper understanding of the complexities and nuances within the legal construction of property, which go beyond the traditional binary model that oscillates between classical theories and the social function of property. The results of this research suggest that land restitution judges have exceeded the simplicity of the formal conception of property, and in turn, have developed a new legal understanding of property that takes into account context, recognizes the particularities of the actors involved, their social and cultural conditions, and allows for a dynamic understanding of property.
Copyright (c) 2018 Sergio Latorre, María Alejandra Anaya https://creativecommons.org/licenses/by-nc-nd/4.0
Merger control in Colombia: Recent Institutional and Public Management Developments
This paper examines the main institutional and public management innovations related to the merger control in Colombia in the period 2013-2017. The article identifies and discusses four developments, that occurred during the period of study, linked with: i) international cooperation, ii) institutional stability, iii) transparency of the proceedings, and, iv) decisions of objection and remedies. Furthermore, the text presents some challenges in the implementation of the merger control and alternatives that may be pertinent in the Colombian context.
Copyright (c) 2018 Juan David Gutiérrez Rodríguez https://creativecommons.org/licenses/by-nc-nd/4.0
Law, Domination, and Hegemony: The Jurisprudence of the Supreme Tribunal of Justice of Venezuela
This article reconstructs the anti-hegemonic theory of law that has influenced the decisions of the Constitutional Chamber of Venezuela’s Supreme Tribunal of Justice. This theory conceives law as an instrument at the service of the struggle for hegemony in which this country’s regime is involved. Contrary to the liberal-democratic constitutionalist tradition, this tribunal sees itself as the facilitator of a socialist project whose success should not be obstructed by the limitations that constitutional law usually imposes on the exercise of political power. From this perspective, constitutional law’s main goal is to strengthen the position of dominance of the revolutionary regime and contribute to the establishment of a new hegemony. This article makes explicit the practical implications of this legal theory through the analysis of three critical moments in the history of Venezuelan politics since the adoption of the Constitution of 1999.
Copyright (c) 2019 Nicolás Figueroa García-Herreros https://creativecommons.org/licenses/by-nc-nd/4.0
Algorithmic Authority: How to Start Thinking about Human Rights Protection in the Age of Big Data
Recent technological changes have set the stage for the rise of algorithmic authority as a new and particular way of exercising power. This paper seeks to enrich the legal vocabulary that will allow this new kind of authority to be understood as a legal phenomenon. Furthermore, it intends to contribute to debates over the normative models better suited to regulate algorithmic authority, within a human rights framework. Four main concepts are discussed: (1) algorithmic authority, (2) lex algorítmica, (3) autonomy, and (4) transparency. Analyzing these four concepts allows for a deeper understanding of the argumentative frameworks and legal theories that will regulate this new legal field.
Copyright (c) 2019 René Urueña https://creativecommons.org/licenses/by-nc-nd/4.0
Between the duty to protect and military necessity: Variations in humanitarian discourse in Colombia, 1991-2016
This article reconstructs two periods in the process of implementation of International Humanitarian Law (IHL) by the Colombian armed forces. In the first period (1991-2006), the armed forces were alien and even hostile to both IHL and International Human Rights Law (IHRL), to the point of seeing a “judicial war” in the action of both civilian courts supervising IHL compliance and of civil society organizations that publicly denounced breaches of law. In the second period (2006-2016), the armed forces began to progressively appropriate IHL. The article reconstructs the history of this shift and shows that one of its main causes lies in the permissive and exculpatory character of IHL. Indeed, when the armed forces appealed to the legal principle of military necessity and other principles of IHL, they sought to limit the reach of civilian oversight over military operations. The article concludes by highlighting some problematic aspects of a prevalent interpretation of the relationship between IHL and IHRL as complementary and “convergent” regimes. Contrary to that interpretation, the history of IHL implementation in Colombia illustrates clearly the contrasts and differences between IHL and IHRL.
Copyright (c) 2018 Pablo Kalmanovitz https://creativecommons.org/licenses/by-nc-nd/4.0
The Right to be Forgotten and Internet Governance: Challenges and Opportunities
This paper offers thoughts on the evolving nature and scope of Internet governance in the context of the development of the right to be forgotten. It summarises traditional frameworks for: (a) defining and operationalizing principles of Internet governance; and (b) distinguishing the types of issues that raise transnational governance concerns from the types of issues that are commonly considered the domain of local laws and norms. If an issue falls within the ambit of Internet governance, it may lend itself to a certain set of solutions (with input from a broad cross-section of global public and private stakeholders). Issues outside that domain tend to be subjects of local regulatory mechanisms, in accordance with notions of national sovereignty. Categorizing a set of legal, policy, or technical considerations as one or the other, thus, has consequences in terms of the types of approaches to governance that may best be deployed to address them. The paper provides examples of how recent technical and legal developments have put pressure on narrow conceptions of Internet governance as concerned primarily with Internet architecture and infrastructure. It posits that Internet governance models may be relevant to more and more conduct that occurs above the level of Internet’s metaphorical pipes, including developments that occur at what is traditionally conceived of as the content layer. The paper suggests that various global implementations of the right to be forgotten —and, in particular, implementations that are directed at the activities of search engines— offer a useful case study in examining and assessing this transformation.
Copyright (c) 2019 Christopher T. Bavitz https://creativecommons.org/licenses/by-nc-nd/4.0
A Child’s Right to be Forgotten: Letting Go of the Past and Embracing the Future?
The European Union’s General Data Protection Regulation confirms the right of the data subject to have his or her personal data erased in its Article 17. Recital 65 GDPR clarifies that this right is particularly relevant where children have given their consent not being fully aware of the risks involved by the processing, and later want to remove personal data, especially on the Internet. Yet, the right to erasure is not absolute. When processing is necessary for a number of legitimate reasons, such as for the exercise of the right to freedom of expression and information, the right to erasure will not apply. This article seeks to explore the right to erasure from a dynamic child rights perspective, and aims to identify a number of challenging questions that may arise in practice, and that are related to the balance with other rights and interests, the required transparency, the potential to ask for erasure where others (for instance, parents) have shared information about the child or given consent on behalf of the child, the desirability of erasure-by-default systems, and enforcement by Data Protection Authorities.
Copyright (c) 2019 Eva Lievens, Carl Vander Maelen https://creativecommons.org/licenses/by-nc-nd/4.0
The digital right to be forgotten from the perspective of the European Union and the feasibility of its extrapolation to the case of Mexico
The so-called right to be forgotten as a manifestation of the right to personal data protection is a reality in the European Unión. However, this perspective has generated conflicting positions, both because of the complexity of the implementation of this right and because of the potential conflicts that it could imply for the exercise of other human rights. This is particularly relevant for those countries in which European Union law has been an important referent in the normative and institutional design of the right of personal data protection. In this context, this article seeks to elucidate whether it is possible to adopt the path previously traced by European Court of Justice in the Case 131/12 Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja, in the Mexican legal system. To that end, this article focuses on the debate generated around the role of Internet intermediaries and the recognition of the right of personal data protection as a human right.
Copyright (c) 2019 María Solange Maqueo Ramírez https://creativecommons.org/licenses/by-nc-nd/4.0
The future of the European Union “Right to be Forgotten”
In its landmark ruling of May 13, 2014, the European Court of Justice deduced from European data protection law, a right for European citizens to remove search results which display information, such as spent convictions and other past indiscretions, which, even though lawfully published, has become out-dated or irrelevant in such a way as to harm the individual’s privacy. Today, this so-called “Right to be Forgotten” stands—in two ways—at a crossroads. First, following a years-long dispute between Google and the French data protection authority, the Commission Nationale de l’Informatique et Libertés, the French Conseil d’Etat has asked the ECJ for a preliminary ruling to provide some much-needed guidance on the implementation of the right, and in particular whether removal of search results should be performed locally in the EU or in a global manner. Second, the entry into force of the General Data Protection Regulation raises the issue of whether and how the “Right to be Forgotten” contained in its Article 17 will impact the current implementation model for erasure in the European Union. Indeed, that provision, having been drafted before the ECJ rendered the Google Spain decision, foresees an expanded scope of application going beyond search engines. The present contribution discusses how each of these two developments will affect the future of the Right to be Forgotten in Europe. Observing that the current implementation model of the right following Google Spain —based on individual private ordering and, in particular, on Google’s inhouse standards and practices—lacks means of scalability, the article concludes that any expansion of either its geographical or material scope could lead to a practical break-down. The author then proposes an alternate implementation model inspired by existing alternate dispute resolution systems.
Copyright (c) 2019 Michel José Reymond https://creativecommons.org/licenses/by-nc-nd/4.0
Contemporary Practical Alternatives to a “Right To Be Forgotten” in the United States
The “right to be forgotten” (RTBF), perhaps more accurately described as a “right of erasure”, first emerged into mainstream public consciousness and practice with the European Court of Justice’s May, 2014 ruling in the Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González case. A targeted and bespoke process for requesting the removal of specific search engine results only emerged in the months immediately following that ruling. The final contours and scope of that process are still not fully settled, and will likely continue to evolve as the EU’s General Data Protection Regulation takes effect in May 2018. However, the concept of an individual’s right or ability to exercise some control over publicly available information about themselves dates back well prior to Mr. Costeja’s lawsuit, and extends well beyond the EU. The Costeja case itself did not purport to create a new right, only to include search engine results as relevant to and controlled by the EU’s 1995 data protection law as “data controllers”. The discussion of some sort of analogous right in both legal academia and in the courts dates back to at least 2006, if not to much earlier, perhaps even to the early part of the 20th century, using an expansive definition of the cultural concerns underlying RTBF. In tandem with that global history of a de facto “right to be forgotten”, there is a parallel history of mechanisms and practices intended or used to achieve this “forgetting”, ranging from standard lawsuits to norms, to —more recently— the subversion of other, unrelated, official affordances for the removal or obscuring of online material. Using examples from the Lumen project’s database, this paper will examine some of the recent ways in which individuals in countries without a codified right of erasure have sought to be “forgotten” by using online content removal mechanisms originally grounded in other purposes and legal regimes, such as copyright, trademark, and defamation. The paper concludes with a speculative discussion of what effect, if any, the existence and repurposing of these alternative mechanisms might have on the development or rejection of a separate RTBF jurisprudence, and what form that regime might take were it to be adopted.
Copyright (c) 2019 Jonathan Adam Holland https://creativecommons.org/licenses/by-nc-nd/4.0
Bitcoin in Troubled Economies: The Potential of Cryptocurrencies in Argentina and Venezuela
The rise of cryptocurrencies in Argentina and Venezuela in recent years shows how a highly distressed economy could become fertile ground for decentralized digital currency. This article analyzes similar traits between these two nations and examines why a collateral result of high inflation, tangled monetary regulation, and political instability could be the rapid growth of cryptocurrencies that are not linked to a central bank. Mistrust in central government authorities and national currency volatility that surpasses that of traded cryptocurrencies open a window for intangible ways of storing the falling value of local fiat currency. This article sets a general framework in order to have a better understanding of the growth of decentralized digital currencies in developing economies and continues to explain the rise of such technology in recent times in Argentina and Venezuela.
Copyright (c) 2019 Andres F. Cifuentes https://creativecommons.org/licenses/by-nc-nd/4.0
Challenges for financing the Colombian posconflict: Lessons from the case of the municipality of El Calvario
In the post-conflict situation in Colombia, it is necessary to improve the fiscal instruments that allow the sustainability of the territorial entities that have been affected by the armed conflict. This document presents the case study of the municipality of El Calvario, as an opportunity to propose mechanisms that consolidate a fair and efficient public revenue system, aimed at strengthening institutional policies and tax culture, based on the lessons learned in the international context. The findings suggest that El Calvario lacks the necessary fiscal effort to face the post-conflict, since the General Royalty System is not enough to cover this scenario given its complexity and the low institutional capacity of the municipality to design and implement projects. Nor is there evidence of a local tax regime that is consistent with the economic vocation of the municipality, nor a political dynamic that promotes effective collection.
Copyright (c) 2019 Eleonora Lozano Rodríguez, Daniela Garzón Rey https://creativecommons.org/licenses/by-nc-nd/4.0
Supreme Courts and Democracy in Argentina: a theoretical proposal
The literature of comparative judicial politics worked extensively on the political factors that explain judicial turnover in Supreme Courts, both at the national and subnational levels of government. The most recent contributions of this literature, particularly on the provincial level in Argentina, maintain that governors are who decide when Supreme Courts judges retire, and also, that party factions are key to explain judicial turnover at Supreme Courts, both in provinces of hegemonic party as in multiparty provinces. However, successive works in this literature pointed out that there is no clear relationship between legislative majorities and judicial turnover at Supreme Courts. This paper proposes different causal mechanisms to explain political changes of judges of the Supreme Courts in diverse political contexts, building from the analysis of the Argentine provinces of Chaco, Misiones and Santa Fe between 1983 and 2011.
Copyright (c) 2020 Augusto Abdulhadi https://creativecommons.org/licenses/by-nc-nd/4.0
Scholars have shown that codified constitutions may be amended informally with similar effect as a formal amendment. Yet the many forms of informal amendment are not well organized for analysis and comparison. In this article, I examine the forms of informal amendment, I classify them as either conventional and unconventional forms of informal amendment, and I subsequently introduce an as-yet underappreciated and undertheorized form of informal amendment: constitutional desuetude. Constitutional desuetude occurs when a codified constitutional rule loses its binding quality upon political actors as a result of its conscious sustained disuse and public repudiation by preceding political actors. Constitutional desuetude both resembles and differs from other forms of informal amendment: it is similar because it changes constitutional meaning without altering the constitutional text yet it is different because it renders the constitutional text politically invalid though it remains codified and unchanged. I draw from the Constitution of Canada to illustrate the phenomenon of desuetude.
Copyright (c) 2019 Richard Albert https://creativecommons.org/licenses/by-nc-nd/4.0
Fighting Cartels in Colombian Public Procurement
This article describes the way in which two global projects –that of the fight against corruption and that of the fight against business cartels– have been amalgamated in the Colombian context. The result of this amalgam is the idea that business cartels in state procurement are anti-competitive acts, but above all, corrupt acts. Along with this idea, this amalgam has led the Colombian competition authority to end up exercising vigilance and control over state contracting along with other authorities established to do so. However, this amalgam becomes problematic to the extent that competition law was not conceived to fight against corruption. The article concludes by showing three particular instances that demonstrate the limitations of the Colombian competition law to fight against corruption in public procurement.
Copyright (c) 2019 Andrés Palacios Lleras https://creativecommons.org/licenses/by-nc-nd/4.0
Judgement determinants: Detention in flagrance and pretrial detention in Mexico
Detention in flagrance and pretrial detention are perceived as the “original sin” of the Mexican criminal justice system. However, empirical research on the relationship between them and their procedural consequences is scarce. That is, little is known in Latin America about whether detention in flagrance predicts pretrial detention and about the specific impact of each of them on the outcome of a criminal proceeding. Using a novel database compiled in the State of Mexico between 2010 and 2014, we examine whether: (1) detention in flagrance is associated with pretrial detention; and (2) if detention in flagrance and pretrial detention are associated with case disposition. Contrary to our expectations, we found no evidence of the association in the first point (1). With respect to the second point (2), detention in flagrance is associated with a greater probability of conviction in an abbreviated trial and a lower probability of the case being dismissed or closed. Preventive detention also predicts a greater likelihood of conviction in the oral trial. This reveals a more complex picture than the one often presented on flagrant detention and pretrial detention. In the final part, we discuss how our research modifies and confirms previous findings.
Copyright (c) 2020 Gustavo Fondevila, Miguel Quintana-Navarrete https://creativecommons.org/licenses/by-nc-nd/4.0
Courts and constitutional scholars throughout Latin America routinely engage in processes of constitutional comparison. The article, however, provides a typology of the many different ways in which they can, and do, compare constitutionally –e. g., through ‘borrowing’ or transfer-oriented, genetic or genealogical forms of comparison; deliberative, empirical, reflective and /or moral-cosmopolitan forms of comparison. Each mode of comparison implies a somewhat different focus, has greater relevance under some constitutional theories than others, and can take ‘thinner’ or ‘thicker’ forms. And each is likely to be practised by different constitutional actors –i. e., in the case of deliberative, moral-cosmopolitan or transfer-oriented modes of comparison, by constitutional drafters, lawyers or judges, or in the case of (at least thick) empirical comparison, by constitutional scholars. But each has value and relevance in Latin America. The article further draws attention to the particular value for scholars working in the field of a form of empirical or ‘socio-legal’ comparison that embraces broad attention to constitutional context (including a constitution’s institutional, social, economic and political context) and attention to the insights of other disciplines, including history, sociology, comparative politics and economics /econometrics. In doing so, it outlines some basic principles of case-selection that can usefully guide processes of comparison of this kind. But it also calls for a realistic approach to these principles, which recognizes the strengths of different scholars in studying various constitutional systems, and the need for provisional, overlapping studies, which together contribute to robust findings about the origins and/or consequences of constitutional developments.
Copyright (c) 2019 Rosalind Dixon https://creativecommons.org/licenses/by-nc-nd/4.0
From action to representation: Indicators of defense performance in a sample of pretrial hearings in Colombia
The judicial reforms of Latin America have transformed the form and substance of criminal justice administration. However, little is known about its concrete impact in terms of the preliminary disposition of cases and the performance of justice operators. This work contributes to the debate on the “quality” standards in the defense service, through an empirical analysis of a sample of preliminary hearings observed directly and randomly in two cities of Colombia (n=330). In particular, it describes the defendant’s type of legal assistance -public or private- as well as five indicators of service performance: Influence (favorability of the resolution); Visibility (intervention time); Specificity (definition of request), Depth (number of arguments used); and Controversy (use of debate/appeal). Results show that performance of the defense varies across these proposed dimensions and it is less influential when it comes to dealing with violent crimes, and when its performance in the courtroom is less visible, less controversial and more specific. In other words, the likelihood of judicial adoption of the requests made by the defense reflects in part of its own professional performance and case strategy (e.g., intervention time, nature of the request made, and limited use of appeals/debates).
Copyright (c) 2020 Andrés F. Rengifo, Lina Marmolejo https://creativecommons.org/licenses/by-nc-nd/4.0
¿What is a judicial decision? Notes on judicial studies in Latin America
The objective of this essay is to analyze the recent changes in judicial decisions within the literature on judicial behavior in Latin America. Here is emphasized that the judicial decisions are no longer understood as a univocal act that favors certain actors. Now they are conceived as a cognitive process, generated within a framework of formal and informal institutions. This process implies recognizing that the judge is not only a political actor. Judges’ vision of legal problems is conditioned by their training, professional career and socialization processes.
Copyright (c) 2020 Josafat Cortez Salinas https://creativecommons.org/licenses/by-nc-nd/4.0
Pacigerence: Legal Status of Peace Agreements Under International Law,
In the past, peace processes between a State and an irregular armed group were considered as internal matters and, therefore, were not regulated by international law. During the last decades, though, these processes have had a growing international dimension due, among other reasons, to the possible legal status of peace agreements under international law. This article explores the existing legal instruments which may confer binding force to such agreements at the international level—an international treaty between a State and an insurgent group, an international treaty signed by a State and third-party States, a special agreement under international humanitarian law, a UN Security Council resolution, and a unilateral declaration of a State—. Given the uncertainty regarding the effects of these current legal instruments, this paper raises the notion of pacigerence, which is based on lex pacificatoria and jus post bellum, as well as the Colombian experience. Pacigerence grants an insurgent group legal personality in order to negotiate and sign peace agreements with the same rights and duties as a State, so that those peace agreements can be understood as true, binding treaties.
Copyright (c) 2019 Rodrigo Uprimny Yepes, Diana Isabel Güiza Gómez https://creativecommons.org/licenses/by-nc-nd/4.0
Torture during drug war in Mexico, among militarization, political control and new justice system
Using the National Survey of “Población Privada de la Libertad” 2016 (“Prison population 2016) we analyzed the probability that a person was tortured at the moment of his/her arrest and before his/her presentation to the authorities, taking into account the following variables: a) the police or military institution that was involved in the detention; b) the type of justice system; c) the period of presidential government. At individual level control variables were also considered (age and sex) and at situational level (type of crime and resistance during arrest). Using logit models the findings confirm a major probability of being tortured if the arrest was conducted by marines. In second place if the arrest was made by soldiers and in third place if the arrest was made by the state and the federal police forces were involved. The probability of being tortured was low when they occurred during the new justice system and in early years of the government of Peña Nieto (2013 - 2016). These findings provide evidence to discuss the militarization process of public security in Mexico.
Copyright (c) 2020 Carlos Silva Forné, Sergio Padilla Oñate https://creativecommons.org/licenses/by-nc-nd/4.0
Trust, support for democracy and corruption: public perceptions of the Colombian Constitutional Court
Though Latin American high courts have increasingly gained saliency as political actors in recent decades, few scholars have explored the relationship between these tribunals and public opinion. This article represents a contribution to that effort by focusing on the case of the Colombian Constitutional Court. What factors help explain individual’s trust in the constitutional tribunal? The analysis is based on ten public opinion surveys (nationally representative samples) taken between 2005-2018 in Colombia. I show that support for democracy and trust in the court are positively related. Those who perceive corruption as more widespread tend to be more distrustful of the court. Additionally, the analysis suggests that this negative effect becomes noteworthy in recent years.
Copyright (c) 2020 Sandra Botero https://creativecommons.org/licenses/by-nc-nd/4.0
The application of the Cartagena Declaration on Refugees to Venezuelans in Brazil: An analysis of the decision-making process by the National Committee for Refugees
Although the outflow of Venezuelan nationals represents one of the greatest challenges which has affected South America so far, the Brazilian National Committee for Refugees (CONARE) took over 3 years to decide whether or not to apply the Cartagena Declaration, progressively demonstrating unwillingness to provide international protection to Venezuelans and developing migratory routes as alternatives. As the main decision-making court in Brazil for asylum claims, this study looks at the route followed by CONARE to come to a decision and its possible consequences for asylum seekers. Although CONARE did apply the Cartagena Declaration in asylum claims made by Venezuelans, it was regarded as subsidiary to the 1951 Convention. Consequently, the committee decided not to apply a prima facie recognition, and demonstrated deep concern to asylum seekers’ criminal background. This investigation uses primary sources, such as official documents and field memories, and secondary sources, such as reports by other researchers and organizations.
Copyright (c) 2020 Natalia Cintra de Oliveira Tavares, Vinicus Pureza Cabral https://creativecommons.org/licenses/by-nc-nd/4.0
Overuse of Pretrial Detention in tension with Judicial and Prison Reforms in the Dominican Republic
In 2003, the Dominican Republic began to shift towards an adversarial judicial model and has implemented one of the region’s most ambitious reforms to its prison system, based on rehabilitative and human rights principles. Although these reforms have improved prison conditions and trial processes, the number of people incarcerated has nearly doubled, from 14,000 to over 26,000. This increase is due mostly to rising rates of pretrial detention, despite the availability of alternative pretrial measures. Drawing on data from prisoner surveys, interviews, and administrative data, this paper analyzes individual- and institutional-level factors that might explain variation in the decision as to whether impose pretrial detention or not. Several legal and extra-legal factors that are salient in other research on pretrial detention, such as charge and education level, are not significantly associated with pretrial detention decisions at individual level in the Dominican Republic. Qualitative findings suggest that broader system-level factors – specifically institutional capacity gaps, inaccessible cash bail, risk-averse decisions by attorneys and judges, and general penal populism – are more important. This suggests that in order for policymakers to reduce the overuse of pretrial detention, they should focus more attention on institutional and political dynamics rather than individual-level disparities.
Copyright (c) 2020 Jennifer Peirce https://creativecommons.org/licenses/by-nc-nd/4.0
The Return of Crimigration and the Devirtuation of the Humanist Character of the Brazilian Migration Law
The issue of criminalizing migratory irregularity is one of the issues that brings major debates in the area of migration law. Brazil, after the advent of Law 13.445/2017 (Migration Law), chose to abolish crimigration. However, through regulatory acts and proposals for legislative changes, the Brazilian State has sought to go back on the humanist character achieved at the time by the Migration Law. Given this scenario, it is necessary to investigate the main administrative and legislative measures that are being used so that Brazil can again adopt the possibility of arrest due to migratory irregularity. Indeed, such measures will be analyzed based on International Human Rights Law, the Brazilian Constitution and the Migration Act itself. As a result, it is expected to contribute to the consolidation of the understanding that the return of crimigration is unconventional, unconstitutional and illegal.
Copyright (c) 2020 Thiago Oliveira Moreira https://creativecommons.org/licenses/by-nc-nd/4.0
Colombian Constitutional Court: ¿A possible stage for Constitutional Experimentalism in migration?
The analysis and reflections on the management of the migration phenomenon by Colombian authorities and on the recent developments of the normative framework on migration are contrasting. In this scenario, the Colombian Constitutional Court plays a key role in understanding these complex dynamics and in comprehending the possible future developments of the Colombian migration policy. This article reflects on this issue through the analysis of some of the most important decisions on this matter, with the aim of proposing it as a lens through which the case law of the Constitutional Court on migrants´ fundamental rights can be understood, especially regarding the rights of migrants coming from Venezuela.
Copyright (c) 2020 Carolina Moreno V., Gracy Pelacani https://creativecommons.org/licenses/by-nc-nd/4.0
Across the globe, public and private actors are now invoking conscience as a ground for objecting to laws or judicial decisions that confer on citizens reproductive and LGBT rights. Conscience claims in culture-war conflicts over reproduction and sexuality differ from paradigmatic religious accommodation claims, where an individual from a minority faith seeks to engage in ritual observance or religiously-motivated dress that runs afoul of generally applicable laws. Accommodation of culture-war conscience claims may inflict significant harms on other citizens and impose older, traditional views on citizens whose rights the law only recently has come to protect. Our intervention is practical and critical. We offer guidance on accommodation, showing how government might promote pluralism by accommodating objectors while protecting citizens who may be affected. We suggest that when government accommodates conscience in a framework that does not preserve the other citizens’ rights, government may be employing accommodation to create a de facto public order favoring objectors’ beliefs.
Copyright (c) 2020 Douglas NeJaime, Reva Siegel https://creativecommons.org/licenses/by-nc-nd/4.0
Constitutional courts in transitions to democracy: Limits, critiques and possibilities in Brazil and Argentina
After World War II, a court-centered model of democratization and transitional justice has developed and consolidated. Trough adjudication, courts could promote the consolidation of liberal democratic governance, protecting fundamental rights, limiting state power and promoting stability and predictability in the interpretation of the law, to attract investments. However, decades after the start of the third wave of democratization, analyses of the jurisprudence of these courts reveal a less convincing performance of its democratizing role. We ask whether the courts have effectively advanced the consolidation of liberal democracy, by analyzing its two fronts: the protection of fundamental rights and the consolidation of liberal economic policies. Based on case studies of key decisions made by the constitutional courts in Brazil and Argentina, of a qualitative nature, we argue that the performance of the courts does not match the high expectations of the model of court-centric democratization.
Copyright (c) 2020 Mariana Rezende Oliveira https://creativecommons.org/licenses/by-nc-nd/4.0