Shaping cultural rights: tensions in Latin American constitutional law and justice

This article analyzes the tensions surrounding the right to intangible cultural heritage (ICH) and the right to cultural identity in Latin American constitutional law and jurisprudence, from the perspective of cultural rights theory. It examines recent decisions of the Supreme Courts of Brazil, Mexico, and Peru concerning cultural practices recognized as ICH that involve cruelty to animals, seeking to understand how these Courts have shaped the boundaries of cultural rights. It argues that this judicial role is marked by tensions between competing rights and by broader political, social, and ethical concerns, stemming from the open legal concept of “culture” within constitutional systems. Methodologically, the study adopts a functionalist comparative approach grounded in constitutional theory, human rights theory, and comparative constitutional law. It is structured in three parts: I – Cultural rights: between old and new rights; II – The constitutional law and jurisprudence of Brazil, Peru and Mexico; III – Shaping cultural rights? Some elements and features. The findings reveal innovation and fragility: innovation in bringing ICH into constitutional adjudication, and fragility in the inconsistencies and lack of clear standards. These outcomes underscore legal uncertainty yet highlight the Courts’ pivotal role, positioning their jurisprudence as a regional reference on the matter.