Human Rights as Transnational Law

Abstract

In 1916, at the first meeting of the then newly created American Institute of International Law, jurists from different countries adopted a declaration stipulating that “[i]nternational law is at one and the same time both national and international.”1 A century later, Latin American international human rights law clearly reflects that idea. Since the adoption of the American Declaration of the Rights and Duties of Man in 1948, and especially since the 1950s, with the creation of the Inter-American Commission on Human Rights, and later with the adoption of the American Convention on Human Rights in 1969, human rights in Latin America have been, are, and will continue to be an essentially regional phenomenon of international law. By examining the Inter-American Court of Human Rights’ case law, this essay analyzes the way in which Latin America has articulated transnational human rights law, from the establishment of the inter-American system, to the distinctive forms of interaction and influence between international law and constitutional law. Drawing from recent jurisprudence on social rights, this essay shows that the idea of a Latin American common law of human rights—an idea that has become highly influential in the past decade—is an example of the outer limits of the potential integration. As such, the idea presents challenges that must be addressed in order for regional human rights to realize their full potential as transnational norms.