Now it has been transformed into a “diffuse conventionality control” by extending
said “control” to all national judges as a requirement for action within the domestic
jurisdiction, although the Inter-American Court retains its power as “final
interpreter of the American Convention” when human rights are not effectively
protected within the domestic jurisdiction. 34
23.
This involves an “extensive system of control (vertical and general)”, as
former Inter-American judge Sergio García Ramírez has rightly pointed out. On this
matter, his thoughts expressed in his concurring opinion on the Judgment rendered
in the Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v.
Peru are illustrative: 35
4.
On other occasions, I have compared the function of international
human rights courts to the mission of national constitutional courts. The
latter are responsible for safeguarding the rule of law through their
decisions concerning the subordination of actions by governmental
authorities to the nation’s supreme law. In the development of constitutional
law, a case law has emerged based on principles and values - principles and
values of the democratic system - which illustrates the direction taken by
the State, provides security to the individual, and defines the route and
boundaries for the work of the State organs. Viewed from another angle,
constitutional control, as an assessment of and a decision on the action by
the governmental authority subject to examination, is entrusted to a highranking organ within the State’s jurisdictional structure (concentrated
control) or assigned to various jurisdictional bodies in the case of matters
under their consideration, in accordance with their respective competences
(diffuse control).
12.
This “conventionality control,” whose successful results determine a
greater dissemination of the system of guarantees may be of a diffuse
nature - as has occurred in some countries; in other words, it may be
carried out by all courts when they have to decide cases in which the
provisions of international human rights treaties are applicable.
13.
This would allow for the development of an extensive (vertical and
general) control system
to ensure that the actions of governmental
authorities are lawful– in terms of their compliance with international human
rights standards– notwithstanding the fact that the source of interpretation
of the relevant international provisions is where States have deposited it
when instituting the protection system established in the American
Convention and in other instruments of the regional corpus juris. I consider
that this extensive control– which is involved in “conventionality control”– is
among the most important tasks for the immediate future of the interAmerican system for the protection of human rights. (Underlining added)
24.
“Diffuse conventionality control” converts the domestic judge into an InterAmerican judge: into the first and true guardian of the American Convention, of its
Additional Protocols (and possibly of other international instruments) and of the
34
Cf. Ferrer Mac-Gregor, Eduardo, “El control difuso de convencionalidad en el Estado
constitucional”, [Diffuse conventionality control in the constitutional State] in Fix-Zamudio, Héctor, and
Valadés, Diego (coords.), Formación y perspectiva del Estado mexicano, [Formation and perspective of
the Mexican State] Mexico, Colegio Nacional-UNAM, 2010, pp. 151-188.
35
Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru, supra note 15, para.
4, 12, and 13 of the Concurring Opinion.
9
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