Latin American Legal Studies

Editors' Note

Hugo Rojas Corral — 2024-06-27

Editors' note of special issue on Critical Theory of Law and Social Justice in the Americas.

Caregiving from Feminist Paradigms: Social Reproduction and Ethics in Regulations and Public Policies

Lieta Vivaldi Macho — 2024-06-27

The purpose of this article is to analyze the treatment of caregiving at the level of international law, comparative law and public policies in the Latin American region, in light of the feminist paradigms that have sought to conceptualize and take charge of caregiving in a broad sense. To this end, feminist theories that approach it from the perspective of social reproduction and the ethics of care will be presented, and reference will be made to the incorporation of caregiving in democracy and through the transformation of concepts of citizenship. Then, the international and national frameworks and public policies referring to caregiving will be analyzed, considering the feminist paradigms mentioned above. It is concluded that in practice, elements of both paradigms have been incorporated, both from the theory of social reproduction and from the ethics of care. At the same time, the absence of the incorporation of elements linked to feminisms of the commons, ecofeminism and post-humanist feminisms is recognized.

Asylum Claim and Regularization at the Mexican Southern Border: Legal Ethnography Based on Experiences of Foreign Women in Tapachula

Noémie Boivin — 2024-06-27

In the last decade, Mexico’s southern border has become increasingly controlled and militarized, cementing Mexico’s role as a containment territory on the North American continent. In this context, the doctrine of “safe, orderly and regular migration” emerges, according to which migration is allowed – even promoted – as long as it is carried out in the appropriate manner, that is, safely, orderly and regularly. The opposite is presented as an undesirable phenomenon to eradicate. This dichotomous logic not only reproduces hierarchies of migrants but is also integrated into the regional consultative processes of the American continent, as well as in the elaboration of migration policies at the national level and bilateral cooperation programs. Through the analysis of semi-structured interviews, this contribution seeks to critically analyze how women asylum seekers and refugees in Tapachula (Chiapas, Mexico) experience the legal dichotomies of migration, in this case the migratory “regularity” and “irregularity”. Specifically, it is intended, through legal ethnography, to understand the causes of their “irregular” migration, to analyze how the migratory status (“regularity” and “irregularity”) has impacted the migratory experiences of these women, and understand how women in transit perceive and relate, directly or indirectly, to “regularity” and “irregularity”.

Role of the Guarantee Judge in the Investigation in the Criminal Procedural Systems of Chile, Uruguay, and the Federal Argentine System

Rafael Blanco — 2024-06-27

The role of the judiciary in Latin American criminal procedural systems has been significantly modified with the transition from inquisitorial or mixed models to accusatorial and adversarial models. This shift has allowed for a focus of judicial work on protecting rights and guarantees in the investigative and intermediate phases and on adjudication during the trial phase. However, these new roles require criteria and standards to precisely delineate the tribunals' actions within the context of a tripartite criminal procedural system that allocates highly differentiated functions and tasks among prosecutors, defense, and the judiciary.

The Influence of Popular Conceptions of National and Constitutional Identity on the Position of Marginalized or Minority Groups Within a Nation State. A Legal, Empirical, and Comparative Analysis of Four Jurisdictions Through the Prism of Gender

Silvia Gagliardi — 2024-06-28

What influence might popular conceptions of national and constitutional identity have on the position of marginalized or minority groups within that system? In this article, we investigate whether and to what extent there may be a relationship between the two. It does so on the basis of a legal, empirical, and comparative analysis of four jurisdictions (Poland, Hungary, Uruguay and Argentina) through the prism of gender. The political and constitutional literature suggests the presence of populist rhetoric in the domestic politics of each state. However, they are distinct in potentially relevant ways, including differing regional human rights frameworks, varying performances in indices of democracy, and different forms of populism that the literature has identified therein. We conclude that these case studies demonstrate the potential for national and constitutional identity to function in an exclusionary manner with adverse real-world consequences for marginalized groups; to the apparent capacity of political parties or rhetoric to amplify this exclusionary potential by advancing highly traditional narratives of identity, or linking identity to contentious social issues; and to the limited efficacy of human rights mechanisms in mitigating the impact of informal or extra-legal influences.

Critical Human Rights Lawyering in Latin America and the United States – The Latin American roots of participatory impact lawyering

Jules Lobel — 2024-07-02

This essay argues that lawyers have traditionally litigated class-action, structural and impact lawsuits in a manner that does not encompass plaintiff participation in the lawsuit. By comparing two relatively recent lawsuits – one a successful California class action lawsuit challenging prolonged and indeterminate solitary confinement in that state’s prisons, and the other a Guatemalan lawsuit in which two former military members were convicted of sexual violence against the indigenous Mayan population in a small Guatemalan town during the height of the Guatemalan civil war – this essay demonstrates that plaintiff participation is both possible and often necessary to successful impact litigation. The article also encourages lawyers and researchers to explore the possibilities and difficulties of plaintiff participation in these kinds of lawsuits. The last section of the article explores the Latin American roots of participatory litigation of the type cases represented by the Guatemalan and California cases discussed in the essay. Both of these cases can trace their roots to the theory of “accompaniment” practiced by the Latin American liberation theologians in the 1970s and 80s, which was transported by lawyers into litigation.

Toward a Constitution of Care: Lessons from the Chilean Constitutional Process of 2021-2022

R. Paz Acevedo Gómez — 2024-06-27

The Chilean constitutional proposal of 2022 was labeled as the most progressive constitution in the world, especially regarding environmental rights and gender equality. It’s a text permeated by a renewed concern for nature and new ways of interacting with the natural world. The proposal, for numerous reasons, was widely rejected by Chileans. However, that did not entail the conclusion of the constitutional process. In a context of climate crisis, the rejection of a text that explicitly acknowledges the existence of a catastrophe and presents mechanisms to deal with it appears as a negative landscape. Against this backdrop, the aim of this article is to analyze the scope and limits of the second chapter of the constitutional proposal, which regards to the Rights of Nature. Specifically, from an ecofeminist perspective, this work is dedicated to those aspects related to environmental justice and the institutions established to protect it. It questions whether the reason for the rejection of the constitutional proposal might be that the language of rights and constitutional clauses could be obsolete in the current context of environmental struggle.

The Right to Social Security in the Case Law of the Inter-American Court of Human Rights: Standards and Challenges for its Protection

Paula Garat — 2024-06-27

The right to social security is of undoubted importance today. Especially after the Covid-19 pandemic, its content, features and other aspects are being debated in some Latin American countries. This article aims to delve into the standards of this right according to the case law of the Inter-American Court of Human Rights on the matter, and certain reports of the Inter American Commission on Human Rights. As necessary background, we will study the evolution of ESCR and their justiciability, and we will then examine the content of this right and its link with other rights and principles, such as equality and non-discrimination. Likewise, the principles of progressivity and non-regressivity and their effects will be analyzed, as well as how economic aspects affect the effectiveness of the right to social security today.

Rights of Present and Future Generations to a Healthy Environment: An analysis in Intergenerational Equity and Solidarity in Latin America

Sarah Dávila — 2024-06-27

The planet is scorching, sea levels are rising, the Arctic is melting, forest fires are soaring, and we are left with existential questions about how we face the global threat of climate change. Faced with the triple planetary crisis of climate change, loss of biodiversity, and environmental pollution, we must ask whether we are doing everything we can to protect all inhabitants on this planet facing this environmental crisis, as well those who will inherit it. These environmental disasters require us all to consider our obligation to present and future generations, and existing and developing normative frameworks for the protection of the right to a healthy environment. This article examines the principles of intergenerational equality and solidarity and how they are essential considerations when protecting vulnerable populations and those living in close connection with nature. It explores these principles within international and regional treaties, and Latin American jurisprudence, which pioneer the rights of nature and environmental human rights advocacy. While global recognition of intergenerational equality and solidarity exists, we can look to the Americas for groundbreaking and innovative arguments that promote the development of normative frameworks in the protection of environmental human rights.