must prevail. If the Convention itself establishes that its provisions do not
have a restrictive effect on other international instruments, it makes even
less sense to invoke restrictions contained in those other international
instruments, but not in the Convention, to limit the exercise of the rights
and freedoms recognized in the latter.
39.
In the case of absolute incompatibility, where no “conventional
interpretation” is possible, if the judge lacks the authority to suspend the rule, he is
limited merely to indicating its non-compliance with the Convention or, where
appropriate, “calling into question its conventionality” before other competent
courts within the same national legal system so that they can exercise
“conventionality control” with greater intensity. Thus, the reviewing judicial bodies
will have to exercise that “control” and disregard the rule or declare it invalid based
on its non-compliance with the Convention.
40.
What does not seem reasonable and would be outside the scope of the
Inter-American Court’s interpretation, is that no national body has jurisdiction to
exercise “diffuse conventionality control" with strong great intensity, that is, to
cease to apply the rule to a particular case or with general effects as a result of its
nonconformity with the Convention, since otherwise there would be international
responsibility on the part of the State. We must not lose sight of the provisions of
Articles 1 and 2 of the Convention relating to the obligation to respect human rights
and the duty to adopt provisions of domestic law. As the Inter-American Court
itself has pointed out, the latter provision is also “aimed at facilitating the work of
the Judiciary so that the law enforcement authority has a clear option on how to
settle a particular case” 52 in situations involving fundamental rights. Thus, in the
specific Case of Almonacid Arellano which gave rise to the doctrine of “diffuse
conventionality control”, the Inter-American Court is emphatic in establishing in
para. 123 that:
when the Legislative Branch fails to abolish and/or adopt laws that are
contrary to the American Convention, the Judiciary is bound to honor the
obligation to respect rights as stated in Article 1(1) of the Convention, and
consequently, it must refrain from enforcing any laws contrary to that
Convention. When State agents or officials uphold a law that violates the
Convention, the State is internationally liable under International Human
Rights Law, inasmuch as every State is internationally responsible for the
acts or omissions committed by any of its branches or bodies in violation of
internationally protected rights, pursuant to Article 1(1) of the American
Convention. 53 (Underlining added).
41. Thus, although “diffuse conventionality control” is exercised by all domestic
judges, it has different degrees of intensity and application, according to "their
respective competences and the corresponding procedural regulations." In
principle, all judges and courts are required to make an “interpretation” of the
national standard in light of the Convention, its Additional Protocols (and possibly
other treaties), as well as the case-law of the Inter-American Court, always using
the interpretive rule of the pro homine principle in Article 29 of the Pact of San
Jose. In this first degree of intensity, the judge will make an interpretation
according to the conventional parameters and, therefore, will discard those
52
Case of Almonacid Arellano v. Chile, supra note 13, para. 123.
53
Cf. Case of Ximenes Lopes, supra note 13, para. 172; and Case of Baldeón García, supra note
13, para. 140.
15
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