What are the challenges of constitutional justice in Europe and Latin America?

On March 26, the IE Tower hosted the event “Challenges of Constitutional Justice in Europe and Latin America”, a meeting in which IE Law School brought together prominent legal experts to reflect on the issues currently facing constitutional courts. Moderated by Sonsoles Arias Guedón, Assistant Professor at IE Law School, the dialogue explored a complex global scenario marked by the redefinition of sovereignty, increasing tensions between national and supranational courts, and growing risks to democracy and the rule of law. 

“The Court of Justice of the EU has reaffirmed the primacy of EU law on several occasions, which has generated tensions with some national courts. A redefinition of sovereignty in judicial matters?” Arias asked at the beginning of the debate, which featured the participation of Armin von Bogdandy, Director of the Max Planck Institute for Comparative Public Law and International Law; Manuel Aragón Reyes, emeritus magistrate of the Spanish Constitutional Court; Eduardo Ferrer Mac-Gregor, former President of the Inter-American Court of Human Rights; and Helena Alviar García, Professor at Sciences Po Paris. 

COMMITMENT TO EUROPEAN SOCIETY

Von Bogdandy began by highlighting the importance of having capable and committed judges, something that, as he warned, is not guaranteed in many countries: “We need judges. The first point to see is that the courts are actually courts, that there are capable judges. Unfortunately, this is not ensured in many countries of the European Union and the world.” He added, “The second point is that all judges must have a commitment to the general system, to European society.” 

Drawing from the Spanish experience, Aragón Reyes stressed that “for the EU and for its Member States, the constitution cannot be neutral” and emphasized the need to seek balance in normative conflicts “so that EU law does not override national capacity in fundamental matters.” 

JUDICIAL INDEPENDENCE, THE HEART OF DEMOCRACY 

Ferrer Mac-Gregor focused his remarks on the role of the Inter-American Court in Latin America, where “integration has been taking place through rights and the language of rights, because it is the most unequal region in the world.” He warned about an “abusive control of conventionality” that, rather than strengthening the American Convention, is distorting it, and reflected on the new challenges facing justice in the region. 

He strongly defended judicial independence as a cornerstone of democracy: “Judicial independence is the heart of democracy. A judge is either independent or ceases to be a judge.” He also issued a global warning: “In the north and the south, in the east and the west, we are seeing issues that erode democracy. It seems we are hollowing out democratic values, and this affects the effectiveness of rights.” 

RIGHTS OF NATURE AND AUTHORITARIAN CHALLENGES 

Alviar García addressed the rise of authoritarian trends in Latin America and other regions, referring to the increasing role that constitutional courts must play in the face of democratic voids: “Many times, constitutional courts end up resolving a number of issues that, for some reason, cannot be resolved democratically,” she noted. 

She also spoke about the rights of nature and highlighted the case of the Atrato River in Colombia, which was recognized by the Constitutional Court as a subject of rights, in order to guarantee its conservation and protection. “Granting biocultural rights to the river,” she explained, in an effort to link “classical rights to a way of life.” She added: “Granting a right is the beginning of a legal battle. It is the moment when activists must take that ruling and work with it.” 

Ferrer Mac-Gregor complemented this perspective by noting that a new legal dimension is emerging from scientific consensus: “Several constitutions are being reformed to include the rights of future generations, such as the climate emergency.” 

The event made clear the need to strengthen the role of constitutional courts as guarantors of the rule of law and democratic values, both in Europe and Latin America, at a time when their foundations are being threatened by authoritarian dynamics, institutional setbacks, and transnational challenges.