52.
Thus, the “regulatory force” of the American Convention extends to the
interpretation made thereof by the Inter-American Court, as the “final interpreter"
of the Pact in the Inter-American System for the Protection of Human Rights. The
Inter-American Court’s interpretation of the provisions of the Convention, acquires
the same efficacy as the latter, since “conventional rules” are really the result of
the “conventional interpretation” undertaken by the Inter-American Court as an
“autonomous judicial organ whose objective is the independent judicial application
and interpretation” 65 of the Inter-American corpus juris. In other words, the result
of the interpretation of the American Convention constitutes its jurisprudence; that
is to say, “the standards derived from the ACHR, which enjoy the same (direct)
effectiveness as that international treaty.” 66
e) Effects of “diffuse conventionality control”: retroactive where necessary
to ensure full effectiveness of the right or freedom
53.
As noted in our analysis of the degrees of intensity of “diffuse
conventionality control”, the outcome of the examination of compatibility between
the national standard and the “conventionality block” involves “annulling” those
interpretations that not in conformity with the Convention, or those which are less
favorable; or, if this cannot be achieved, the consequence would be to “invalidate”
the national standard, either in a specific case or with general effects, declaring it
invalid in accordance with the judge's authority to carry out said control.
54.
The foregoing is more complicated when national regulations only allow the
general announcement of the standard for the future (ex nunc effect) and not in
the past (ex tunc), as it seems that the intention of the Inter-American Court when
it established the doctrine of “diffuse conventionality control” was that any
standard not in conformity with the Convention lacks legal effect “from the
outset.” 67 This precedent was reiterated in subsequent cases, especially in cases
regarding self-amnesty laws 68 or in other circumstances. 69 However, this criterion
65
Article 1 of the Statute of the Inter-American Court of Human Rights, approved by resolution
num. 448 of the OAS General Assembly in La Paz, Bolivia (October 1979).
66
Ferrer Mac-Gregor, Eduardo, and Silva García, Fernando, “Homicidios de mujeres por razón de
género. El Case of Campo Algodonero”, [Homicides of women for reasons of gender. The Case of the
Cotton Fields]. in von Bogdandy, Armin, Ferrer Mac-Gregor, Eduardo, and Morales Antoniazzi, Mariela
(coords.), La justicia constitucional y su internacionalización: ¿Hacia un Ius Constitutionale Commune en
América Latina?, [Constitutional Justice and its Internationalization: Towards a Ius Constitutionale
Commune in Latin America?] Mexico, UNAM-Max Planck Institut, 2010, tome II, pp. 259-333, in pp.
296-297.
67
Cf. Case of Almonacid Arellano et al. v. Chile, supra note 13, para. 124.
68
For example, in the Case of La Cantúta v. Peru, supra note 16, para. 174: “In line with this
view, the remaining dispute must be understood as part of the first set of measures that must be
adopted to adapt domestic law to the Convention. In order to better understand the issue, it should be
noted that the Court has found that, in Peru, the self-amnesty laws are ab initio incompatible with the
Convention; that is, their mere enactment “constitutes per se a violation of the Convention” since it
“overtly conflicts with the obligations assumed by a State Party” to such treaty. This is the rationale
behind the Court’s ruling with general effects in the case of Barrios Altos. That is why its application by a
state organ in a specific case, through subsequent statutory instruments or through its enforcement by
state officers, constitutes a violation to the Convention. Moreover, in the Case of Gomes Lund et al.
(“Guerrilha do Araguala”) v. Brazil, supra note 4, para. 106.
69
For example, in the Case of Radilla Pacheco v. United Mexican States, supra note 19, para.
339; as well as the recent Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia, supra note 24, para. 202.
19
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