Many judicial conservatives decry the use of international law, treaties, and precedent to make decisions. They fear that allowing such inputs into decisions will weaken American constitutional norms.
I think they are almost certainly wrong, at least in the case of the United States. But the fear is not crazy.
Consider Bolivia, where Evo Morales is running for re-election in explicit contravention of the national constitution. How did that happen?
Well, in 2017 the SCOPNOB (Supreme Court Of the Pluri-National State Of Bolivia) declared that the constitutional article limiting president re-election is against the constitution. How did that happen? Well, the court decided that term limits contradicted article 23,24 and 29 of the Convención Americana sobre Derechos Humanos.
Relevant portions of the Convención:
Article 23: Every citizen shall enjoy the following rights and opportunities:
a. to take part in the conduct of public affairs, directly or through freely chosen representatives;
b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and
c. to have access, under general conditions of equality, to the public service of his country.
The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.
Article 29: Restrictions Regarding Interpretation
No provision of this Convention shall be interpreted as permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein.
In short, the Bolivian court ruled that term limits restricted President Evo Morales’s right to “to have access, under general conditions of equality, to the public service of his country.”
Now, the court also referred to Articles 26 and 28 of the Bolivian constitution, but those are pretty clearly written to allow for term limits. The real kickers were articles 23 and 29 of the American Convention, with article 24 (which parallels the equal protection clause of the 14th Amendment to the U.S. constitution) as a sweetener.
Realistically, the Bolivian court probably would have ruled the way that it did regardless of the convention. The decision was a political one in a country with weak rule of law.
But. But. There is a logic behind interpreting the clauses of the American Convention to obviate term limits. It helps that Article 13 of the Bolivian constitution explicitly say that “the rights and duties consecrated in this Constitution shall be interpreted in accordance with the International Human Rights Treaties ratified by Bolivia.”
And that logic has resulted in the perfectly ridiculous spectacle of a Supreme Court declaring a procedural part of the constitution to be unconstitutional because everyone has a human right to become President.
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