(2006), and referring now to “all the organs” of States which have ratified the
American Convention, “including their judges,” who must safeguard the effet utile
of the Treaty, and that “judges and organs linked to the administration of justice at
all levels” are required to conduct “conventionality control” ex officio.
19. The intention of the Inter-American Court is clear: to establish that the doctrine
of “conventionality control” must be exercised by “all judges,” whether or not they
are formal members of the Judicial Branch, and regardless of their rank, grade,
level or area of expertise.
20. Thus, there is no doubt that “conventionality control” must be carried out by
any and all judges or courts that materially perform judicial functions, including, of
course, the Courts, Chambers or Constitutional Courts, as well as the Supreme
Courts of Justice and other high courts of the twenty-four countries which have
signed and ratified or acceded to the American Convention on Human Rights, 32 and
even more so, those of the twenty states that have recognized the contentious
jurisdiction of the Inter-American Court, 33 out of a total of thirty-five countries that
make up the OAS.
C. CHARACTERIZATION OF “DIFFUSE CONVENTIONALITY CONTROL” IN LIGHT
OF THE DEVELOPMENT OF ITS JURISPRUDENCE
a) “Diffuse” nature: all domestic judges “must” exercise it
21.
In real terms, this involves “diffuse conventionality control” given that it
must be exercised by all domestic judges. Consequently, there has been an
assimilation of the concepts of Constitutional Law, which has been present since
the beginning and in the development of International Human Rights Law,
particularly in the creation of international “guarantees” and “organs” for the
protection of human rights. There has been a clear “internationalization of
Constitutional Law,” particularly as regards the transfer of “constitutional
guarantees” as procedural instruments for the protection of fundamental rights of
“constitutional supremacy,” to “the conventional guarantees,” as judicial and quasijudicial mechanisms for the protection of human rights enshrined in international
treaties when the former have not been sufficient; in a sense, this also gives rise to
a “conventional supremacy.”
22.
One of the expressions of this process of “internationalization” of
constitutional categories is, precisely, the diffuse concept of conventionality control
that we are analyzing, since it is based on the deeply-rooted connotation of “diffuse
constitutional control” as opposed to “concentrated control” carried out in
constitutional States by their highest “constitutional bodies,” with the final
constitutional interpretations being issued by the Constitutional Tribunals, Courts or
Chambers, and in some cases by the Supreme Courts and other high judicial
bodies. In this sense, the Inter-American Court has been carrying out
“concentrated conventionality control” since its very first judgments, examining the
actions and rules of the State, in each particular case, in light of the Convention.
This “concentrated control” was basically carried out by the Inter-American Court.
32
Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Ecuador, El
Salvador, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican
Republic, Suriname, Uruguay and Venezuela. Trinidad and Tobago denounced the American Convention
on Human Rights.
33
The States mentioned in the preceding footnote, except for Dominica and Jamaica (which have
not yet accepted said jurisdiction) and Trinidad and Tobago (denounced in 1999).
8
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