Compensatory constitutionalism prepared by the IDH court as discourse in matter of human rights: consequences for national legal systems

Abstract

Article on compensatory constitutionalism as a human rights discourse. Through a bibliographical review, the objectives were to examine whether compensatory constitutionalism is the appropriate instrument for strengthening human rights; analyze the features of human rights, recognizing the role of the IHR Court precedents in their construction; finally, verify the consequences of compensatory constitutionalism in the States, paying attention to the democratic deficit and the strengthening of social movements. As a hypothesis, compensatory constitutionalism is elaborated as a discourse on human rights, by the Inter-American Court, in response to the lack of human rights protection by States. As a result, compensatory constitutionalism proves to be important in the relationship between the Inter-American Court and the States. State resistance is the main obstacle to the implementation of compensatory constitutionalism, making it necessary to reflect and discuss the possibility of greater openness by States to the implementation of human rights constructed by the Inter-American Court, to strengthen social movements.