Loor v. Panama (2010); 25 Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil
(2010), 26 and now, Cabrera García and Montiel Flores v. Mexico (2010). 27
16.
Furthermore, the doctrinal jurisprudence was also applied in the orders for
monitoring compliance with judgment in the Cases of Fermín Ramírez and Raxcacó
Reyes, as well as in the request for “extension of provisional measures” in Raxcacó
Reyes et al. all v. Guatemala. 28 This issue has also been considered in great depth
by some judges of the Inter-American Court when issuing their concurring
opinions, including former presidents García Ramírez 29 and Cançado Trindade, 30 as
well as ad hoc judge Roberto de Figueiredo Caldas, 31 to whom I will refer later.
B. CONTRIBUTIONS IN THE CASE OF CABRERA GARCÍA AND MONTIEL FLORES
17.
Regarding the Judgment to which this concurring opinion refers, the essence
of the doctrine of “conventionality control” is reiterated with some important
specifications, in the following terms:
225. This Court has held in its case law that it is aware that domestic
authorities are subject to the rule of law and, therefore, are required to
apply the provisions in force within the legal system. But when a State is
a Party to an international treaty such as the American Convention, all its
organs, including its judges, are also bound by that treaty. This obliges
them to ensure that the effects of the provisions embodied in the
Convention are not impaired by the enforcement of laws which are
contrary to its object and purpose. The judges and organs linked to the
administration of justice at all levels are required to carry out ex officio a
form of “conventionality control” between domestic legal provisions and
the American Convention, obviously within the framework of their
respective competences and the corresponding procedural rules. In this
task, the judges and organs linked to the administration of justice must
take into account not only the treaty, but also the interpretation thereof
by the Inter-American Court, which is the final interpreter of the
American Convention. (Underlining added).
18.
As is evident, the Inter-American Court clarifies its doctrine on
“conventionality control,” by replacing statements that referred to the “Judicial
Branch,” which appeared since the leading case of Almonacid Arellano v. Chile
25
Case of Vélez Loor v. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment
of November 23, 2010. Series C No. 218, para. 287.
26
Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil. Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 24, 2010. Series C No. 219, para. 106.
27
Case of Cabrera García and Montiel Flores v. Mexico, supra note 1, para. 225.
28
Matter of the Inter-American Court of Human Rights of May 9, 2008, para. 63.
29
In addition to the aforementioned concurring opinions supra note 11, see also the opinions
issued subsequent to the leading case of Almonacid Arellano, concerning “conventionality control”: Case
of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru, supra note 15, para. 1 to 13 of
Concurring Opinion; and Case of Valle Jaramillo et al. v. Colombia. Merits, Reparations and Costs.
Judgment of November 27, 2008. Series C No. 192, para. 3 of the Concurring Opinion.
30
Cf. Concurring Opinion in the Case of Dismissed Congressional Employees (Aguado Alfaro et
al.) v. Peru, supra note 15, particularly paras. 2 and 3 thereof; and the request for interpretation of the
Judgment rendered in that case, on November 30, 2007, particularly paras. 5 to 12, 45 and 49, of the
Dissenting Opinion.
31
Cf. Concurring Opinion in the Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil. supra
note 4, paras. 4 and 5.
7
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