exercise “conventionality control”, practically repeating the view expressed by the
Inter-American Court of Human Rights in the Case of Almonacid Arellano v. Chile.
Indeed, paragraph 21 of that ruling by the Supreme Court of Argentina states:
21) That, for its part, the Inter-American Court has indicated that it “is
aware that domestic judges and courts 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 has ratified an international treaty such as the
American Convention, its judges, as part of the State, are also bound by
said Convention, which requires them to ensure that all the effects of the
provisions embodied in the Convention are not impaired by the enforcement
of laws that are contrary to its purpose and end, and which have had no
legal effects from the outset.” In other words, the Judiciary must exercise a
form of “conventionality control” between the domestic legal provisions
which are applied to specific cases and the American Convention on Human
Rights. In this, the Judiciary must take into account not only the treaty, but
also the interpretation thereof by the Inter-American Court, which is the
ultimate interpreter of the American Convention. –Inter-American Court.
Series C N- 154, case of "Almonacid", of September 26, 2006, para. 124.
31.
An interesting exchange occurs between the Inter-American Court and the
national courts, which fosters “jurisprudential dialogue.” 47 This dialogue influences
the effective articulation and creation of standards for the protection of human
rights in the Americas or, at least, in Latin America. International Human Rights
Law combines with Constitutional Law, or if preferred, International Constitutional
Law and International Human Rights Law are linked; this necessarily implies the
continuous training and updating of national judges on the dynamics of
Conventional jurisprudence.
32.
In this regard, the former President of the Inter-American Court, Antônio
Augusto Cançado (currently a judge of the International Court of Justice) makes
some important points in his reflections on “conventionality control.” In his
concurring opinion in the Case of Dismissed Congressional Employees (Aguado
Alfaro et al.) v. Peru, he stated: 48
3.
In other words, the Judicial organs of each State Party to the
American Convention should have an in-depth knowledge and duly apply not
only Constitutional Law but also International Human Rights Law; they
should conduct, ex officio, conventionality control and constitutional control,
considered together, given that the international and national legal systems
are in constant interaction in the domain of the protection of the individual.
(Underlining added).
33.
The doctrine of “diffuse conventionality control” established by the InterAmerican Court is directed at all national judges, who must exercise such “control”
regardless of rank, grade, level or jurisdiction conferred by domestic regulations.
Clavel,’ ‘Simon,’ ‘Mazzeo’] in Albanese, Susana (coord.), El control de convencionalidad, Buenos Aires,
Editorial Ediar, 2008.
47
Specifically Diálogo Jurisprudencial [Jurisprudential Dialogue] is the name of the semiannual
magazine published with the Institute of Legal Investigations of the UNAM, the Inter-American Court of
Human Rights, and the Konrad Adenauer Stiftung Foundation, since the second semester of 2006. The
objective is to shed light on the rulings of the national courts that apply the jurisprudence of the InterAmerican Court of Human Rights, on international human rights law and, in turn, on the influence of
domestic case-law on the Inter-American Court.
48
Supra note 15, para. 3 of the concurring opinion of Judge Antônio Augusto Cançade Trindade.
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