83.
The foregoing marks the beginning of the practice of “diffuse conventionality
control" in the Mexican judicial system, in line with Inter-American conventional
jurisprudence and with the examples of the high courts of Latin American
countries, referred to in paras. 226 to 232 of the Judgment in the Case of Cabrera
García and Montiel Flores v. Mexico, which prompts the present Concurring
Opinion.
84.
Finally, this trend is evident in recent legislative reforms, such as in the
Constitution of the State of Sinaloa (2008). This local legal system establishes
criteria for interpreting the fundamental rights and "their meaning is determined in
accordance with international instruments incorporated into the Mexican legal
system and which meet the criteria applicable to the international protection of
human rights recognized by the Mexican State, especially the Inter-American Court
of Human Rights.” 116 (Underlining added).
V. TOWARDS A IUS CONSTITUTIONALE COMMUNE IN THE AMERICAS
85.
The interaction between international and constitutional law is ineludible and
their “communicating vessels” are becoming closer. On the one hand, the
"internationalization" of various categories existing within the domestic sphere of
constitutional States is evident, especially with international human rights treaties
and the creation of universal and regional systems of protection, with the aim of
ensuring that States effectively apply these international instruments. There is a
shift from traditional “constitutional guarantees” to "conventional guarantees”, a
process that has developed to a higher degree with the judgments issued by the
international courts.
86.
The doctrine of “diffuse conventionality control” appears to have been
adopted
by
the
Inter-American
Court
in
an
evolving
process
of
"internationalization”, which has influenced the practices of domestic high courts.
(See supra para. 29). Moreover, since 2006, when the Inter-American Court began
to “irradiate” its jurisprudence, thereby promoting the national acceptance of
international standards in the States Party to the Convention, this "nationalization"
or "constitutionalization" of International Human Rights Law has become deeper
and more intense, as evidenced by the acceptance of this doctrine by the domestic
high courts (see above paras. 28 and 30).
87.
In 2010, the Inter-American Court reiterated this doctrine in eight
contentious cases, denoting its consolidation. Its elements and distinctive features
will certainly continue to be carefully analyzed by the Inter-American and national
judges. The doctrine does not seek to establish which body has the final word, but
to encourage creative, responsible jurisprudential dialogue, committed to ensuring
the effective application of fundamental rights. Domestic judges now become the
first Inter-American judges. It is they who bear the greatest responsibility in
harmonizing national legislation within the Inter-American parameters. The InterAmerican Court must monitor this process and be fully aware of the standards
developed in its jurisprudence, considering also the “national margin of discretion”
enjoyed by States in interpreting the Inter-American corpus juris. 117 Much is
116
2008.
Article 4 Bis C-II. The reform was published in the Federal State’s Official Gazette on May 26,
117
Regarding this doctrine, Cf. García Roca, Javier, El margen de apreciación nacional en la
interpretación del Convenio Europeo de Derechos Humanos: soberanía and integración, [The national
32
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