Abstract

RINCON-COVELLI, Tatiana. International human rights law: a limiting or constituent element of democracy? About the uruguayan transition to democracy. Estud. Socio-Juríd [online]. 2012, vol.14, n.2, pp.71-106. ISSN 0124-0579.

The idea of the will of the people as an expression of sovereignty is typical of the political theory that seeks to explain the origin of the modern liberal state. The compatibility between the individual freedom of subjects considered equal and the exercise of political power needs to think of citizens as free subjects, and this is achieved when the power exercised over them is seen as a power that comes only from the citizens themselves. In the individualist conception of democracy, the rights of individuals are older and have precedence over membership in the society. However, it is not necessary to commit to this conception to defend the primacy of the rights. It can be defended only on the decisions of the society. From this position a potential conflict between popular sovereignty and human rights is conceivable. The Uruguayan political transition exemplifies this possibility. Through both a referendum and a plebiscite called by the civil society, the majority endorsed the Law of Caducity of the Punitive Claim of the State that prevents prosecution of serious crimes committed during the dictatorship. The ICHR declared in 2011 that this decision violated the ACHR and that popular sovereignty is subject to the limits imposed by human rights. The analyses of the decision have focused on the obligation of the State of Uruguay to fulfill it, but not on what it means to the contemporary understanding of democracy. This is what I intend to do in this article, through two theses: i) the conflict remains if the concept of democracy is a procedural concept, and ii) the ICHR offers a concept that opens a path to the resolution of the conflict.

Keywords : Uruguayan political transition; emocracy and exercise of human rights; limits on popular sovereignty; democracy in the jurisprudence of the Inter-American Court; human rights and majority rule.

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