Between Sinking Ships and Collective Wins: Human Mobility Standards from the Inter-American System of Human Rights in Argentinean and Mexican Domestic Adjudication

In recent years, Latin America has witnessed two interrelated trends. The Inter-American System of Human Rights has been developing standards relating to the rights of migrants and refugees since its Advisory Opinion (AO) 18/03, and the rights of foreigners since AO 16/99. Meanwhile, domestic legal frameworks within the region have adopted a new approach to human mobility based on human rights. Argentina was the first country to issue a national law (No. 25,871/2004), which, alongside the Refugees Law (No. 25,615/2006), enshrines the right to migrate. Other Latin American countries have followed suit, albeit with different emphases: Uruguay, Ecuador and Bolivia, and Mexico, Brazil and Costa Rica. Against this backdrop, my contribution aims to examine how domestic courts have incorporated Inter-American human rights sources in their rulings, focusing on the decisions of the highest courts in Argentina and Mexico. Both countries have a long-standing relationship with the Inter-American Human Rights system, particularly with regard to the rights of migrants and refugees, and both have constitutional clauses regarding the rights of foreigners (Argentina) and the more recent right to seek and receive asylum (Mexico). Nevertheless, both countries have undergone political changes in recent years that have had a specific impact on regulations governing the movement of people. To this end, this piece systematically reconstructs the universe of cases and outlines four categories based on the granting of protection and the use of standards: “A Collective Win”, “A Singular Victory”, “Planting for the Future?” and “The Sinking Ship”. It then scores the use of Inter-American human rights sources using a point system.