acceptance of international human rights law is an outstanding positive trait
nowadays, and it should be recognized, sustained and increased.
10.
The express and sufficient connection between the domestic system and the
international system – which resolves disagreements and overcomes problems of
interpretation that can signify uncertainty or a diminishing of the statute of individual
rights and freedoms – must be encouraged in order to continue steadfastly in this
direction. Several modern constitutions have confronted this matter and provided
solutions that “build a bridge” between both systems and eventually benefit those
whose interests must be served: human beings. This happens when a constitution
grants the highest value to international human rights treaties or when it establishes
that, in cases of difference or discrepancy, the norm that contains the maximum
guarantees or most extensive rights for the individual will prevail.
11.
If this clear and categorical connection exists – or at least one that is
sufficient and intelligible, and that is not lost in uncertainties or a diversity of
interpretations - and, because of this, international instruments are immediately
applicable in the domestic sphere, the national courts can and must conduct their
own control of “conventionality.” This has been done by various organs of national
justice, improving the outlook that had been bleak, inaugurating a new stage of
enhanced protection of the individual and confirming the idea – which I have
reiterated – that the vital battle for human rights will be won in the domestic sphere,
to which the international sphere is a contributor or a complement, but not a
substitute.
12.
This control of “conventionality” – on the successful results of which the
increased dissemination of the regime of guarantees depends – can have (as has
occurred in some countries) a diffuse nature; in other words, it can be in the hands
of all the courts when they have to decide cases in which the provisions of
international human rights treaties are applicable.
13.
This would allow an extensive (vertical and general) system of control of the
legality of the acts of governmental authorities to be drawn up – as regards the
conformity of such acts to international human rights norms – without prejudice to
the fact that the source of interpretation of the relevant international provisions is
where the States have deposited it when setting up the protection system
established in the American Convention and in other instruments of the regional
corpus juris. I consider that this extensive control – to which the control of
“conventionality” corresponds – is among the most relevant tasks for the immediate
future of the inter-American system for the protection of human rights.
Sergio García-Ramírez
Judge