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Publication Date

January 2003


In these remarks, I will comment on the papers of Professors Jackson and Pfander by analyzing the topic of "suing the sovereign" from the Latin American perspective. This analysis requires a comparison, and comparisons by their very nature are difficult and challenging as words have different meanings in different languages. The Italian expression "traductore traditore," or "the translator is a traitor," comes to mind. Without entering into additional complex issues that arise when attempting to make cross-cultural comparisons, one issue that is especially important is what I will call the "hierarchy trap." The relative importance of an issue-in terms of its priority-may differ greatly from one legal system to another. In any comparative analysis, one must always keep in mind the relevance of the issue being compared in light of the specific priorities facing any one society at a given time. Failure to recognize the importance of this trap results in a distorted analysis because even if the issues are treated similarly in each society under comparison, such issues may not be a priority in one of the societies. In addition, words taken in isolation compound the issues involved in a comparison. Words can be similar, but for an accurate comparison, we need to identify not only who is in charge of their interpretation and the proper role of the courts, but also the enforcement agencies and what occurs in practice. To limit the serious issues raised when making a comparison, these remarks do not "merely compare," but instead present the key issues facing Latin American societies in general, with regard to the general topic of this conference: "Suing the Sovereign." Part II presents these key issues. Part III discusses the creation and role of the Inter-American system of human rights. Part IV covers the law of torts; and finally, Part V will address the goals for the future in Latin America.

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