Abstract

HERRERA, Juan C.. Judicial Dialogue and Transformative Constitutionalism in Latin America: The Case of Indigenous Peoples and Afro-descendants^-. Rev. Derecho Estado [online]. 2019, n.43, pp.191-233. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n43.08.

This research presents an example of transformative case law from the Inter-American Court of Human Rights and the Constitutional Court of Colombia. Due to the fact that these Courts had seriously contemplated the right to free, prior and informed consultation of indigenous peoples and afro-descendants, this study explains the standards and statistics produced for 25 years on the topic. It focuses on the principal outcomes of the interamerican case Saramaka v. Suriname (2007) and the Colombian Decision T-129 of 2011, which nowadays encompass the most plausible and balanced standard of protection on the matter. However, the progressive outcomes are at risk of being regressively changed. For that reason, this study analyses the relevance of "binding consent" as an alternative to the problematic category or wrongly so-called "veto power".

Keywords : Transformative Constitutionalism; Right to Free; Prior and Informed Consent (FPIC); Indigenous Peoples; Afro-Descendants; Constitutional Court of Colombia; Inter-American Court of Human Rights; Judicial Dialogue.

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