12
doctrine in 2006. It is important to mention precedent for the landmark Supreme
Court of Argentina in 2007 (Case "Mazzeo"),47 which expresses the obligation of the
local Judicial Branch to exercise the "control of conformity with the Convention,"
practically repeating that expressed by the Inter-American Court of Human Rights in the
Case of Almonacid Arellano v. Chile. Indeed, in para. 21 of that ruling the Supreme
Court of Argentina states:
21) That the Inter-American Court has noted that it “is aware that domestic
judges and courts are bound to respect the rule of law, and therefore, they
are bound 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 such Convention. This
forces them to see that all the effects of the provisions embodied in the
Convention are not adversely affected by the enforcement of laws which are
contrary to its purpose and that have not had any legal effects since their
inception.” In other words, the Judiciary must exercise a sort of “control [of
conformity with the Convention” between the domestic legal provisions
which are applied to specific cases and the American Convention on Human
Rights. To perform this task, the Judiciary has to take into account not only
the treaty, but also the interpretation thereof made by the Inter-American
Court, which is the ultimate interpreter of the American Convention. –I/A
Court of H.R. Series C N- 154, case of "Almonacid", of September 26, 2006,
paragraph. 12431.
There is an interesting influence between the I/A Court of H.R. and the
national jurisdictions that fosters “jurisprudential dialogue.” 48 Dialogue that affects
the proper articulation and creation of standards for the protection of human rights
in the Americas or, at least, in Latin America. The International Law of Human
Rights is combined with constitutional law, or if preferred, International
Constitutional Law and International Law of Human Rights are combined; this
implies, necessarily, permanent and continuous training of national judges
regarding dynamics of jurisprudence of the Convention.
32.
In this regard, the considerations of former president of the I/A Court of
H.R., Antônio Augusto Cançado (now judge of the International Court of Justice)
are relevant, upon reflecting on the "control of conformity with the Convention” in
47
Case of “Mazzeo, Lulio Lilo et al. s/Recurso de Casación and Inconstitucionalidad, of July 13,
2007. On this important ruling in general on the evolutionary nature of the reception of international law
on behalf of the Supreme Court of Justice of Argentina, See Bazán, Víctor, “El derecho internacional en
la jurisprudencia de la Corte Suprema de Justicia, con particular énfasis en materia de derechos
humanos”, [International law in the jurisprudence of the Supreme Court of Justice, and with particular
emphasis in matters of human rights] in La Ley, Suplemento Extraordinario (75 Aniversario), Buenos
Aires, August 2010, pp. 1-17, particularly in the Case of “Mazzeo” See pp. 10, 11 and 16; moreover,
Hitters, Juan Carlos, “Control de constitucionalidad y control de onvencionalidad. Comparación.
(Criterios fijados por la Corte Interamericana de Derechos Humanos)” [Control of Constituitonality and
control of conformity with the Convention. Comparison. (Fixed criteria by the Inter-American Court of
Human Rights)] in Estudios Constitucionales, Santiago, Centro de Estudios Constitucionales de
Chile/Universidad de Talca, Año 7, N° 2, 2009, pp. 109-128; and Loiano, Adelina, “El marco conceptual
del control de convencionalidad en algunos fallos de la Corte Suprema Argentina: “Arancibia Clavel”,
“Simón”, “Mazzeo”, [the conceptual framework of the control for conformity with the Convention in
some of the rulings of the Argentine Supreme Court: ‘Arancibia Clavel,’ ‘Simon,’ ‘Mazzeo’] in Albanese,
Susana (coord.), El control de convencionalidad, Buenos Aires, Editorial Ediar, 2008.
48
Specifically Diálogo Jurisprudencial [Jurisprudential Dialogue] is the name of the semestral
magazine edited in conjunction with the Institute of Legal Investigations of the UNAM, the InterAmerican Court of Human Rights, and the Foundation Konrad Adenauer Stiftung, 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 I/A Court of H.R. and of the international law on human rights, and on the influence
that is received by the Inter-American Court by the domestic jurisprudence.
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