14
effects. This involves a general declaration of invalidity for nonconformity with the
Convention of the national standard.
37.
Instead, the intensity of the "diffused control of conformity with the
Convention" will diminish in those systems where the "diffused control of
constitutionality" is not allowed, and therefore, not all judges have the power to
stop enforcing a law to a specific case. In these cases it is obvious that the judges
who lack such jurisdiction, shall exercise the "diffused control of conformity with the
Convention" with less intensity, without this implying that they can not do so
"within their respective jurisdictions.” This implies that they can not fail to apply
the norm (even though they may not have that power), and shall, in any case, make
a "standard interpretation" of it, that is, make a "consistent interpretation," not only
of the national Constitution, but also of the American Convention and the
jurisprudence of the Convention. This interpretation requires a creative action in
order to achieve compatibility of the national standard in accordance with the
conventional parameter and thus achieve the realization of the right or freedom in
question, with the broadest and most encompassing reach in terms of the pro
homine principle.
38.
In this regard, upon carrying out an “examination of compatibility with the
Convention,” the domestic judge must always apply the pro homine principle
(enshrined in Article 29 of the Pact of San José), which implies, inter alia, to
implement the most favorable interpretation for the use and enjoyment of
fundamental rights and freedoms;51 being able to also opt for the interpretation
that is most favorable in regard to its applicability with the American Convention
and other international human rights treatises. The I/A Court of H.R. has indicated
this, noting that:52
51.
With respect to the comparison between the American Convention
and the other treaties already mentioned, the Court cannot avoid a
comment concerning an interpretation suggested by Costa Rica in the
hearing of November 8, 1985. According to this argument, if a right
recognized by the American Convention were regulated in a more restrictive
way in another international human rights instrument, the interpretation of
the American Convention would have to take those additional restrictions
into account for the following reasons:
If it were not so, we would have to accept that what is legal and
permissible on the universal plane would constitute a violation in this
hemisphere, which cannot obviously be correct. We think rather that
with respect to the interpretation of treaties, the criterion can be
established that the rules of a treaty or a convention must be
interpreted in relation with the provisions that appear in other treaties
that cover the same subject. It can also be contended that the
51
This concept notes: “Article 29. Restrictions Regarding Interpretation. No provision of this
Convention shall be interpreted as: a). permitting any State Party, group, or person to suppress the
enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a
greater extent than is provided for herein; b). restricting the enjoyment or exercise of any right or
freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which
one of the said states is a party; c}. precluding other rights or guarantees that are inherent in the
human personality or derived from representative democracy as a form of government; or d}. excluding
or limiting the effect that the American Declaration of the Rights and Duties of Man and other
international acts of the same nature may have.
52
Advisory Opinion OC-5/85. November 13, 1985. Series A No. 5, in regard to Compulsory
Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29
American Convention on Human Rights), para. 51 and 52.
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