5
the “merits” of the matter and not as an issue of a “preliminary objection,” as that
is where the “examination of conformity with the convention” of the domestic
actions taken in light of the American Convention are carried out, as well as the
interpretation made of it by the I/A Court of H.R.
III.
THE DOCTRINE OF THE “DIFFUSED CONTROL OF COMPLIANCE”
AND ITS SPECIFICATIONS IN THE PRESENT CASE
A. RISE AND REITERATION OF THE DOCTRINE
13.
The doctrine of the “control of compliance” arose in 200611 in the Case of
Almonacid Arellano v. Chile:12
123. The above mentioned legislative obligation established by Article 2 of
the Convention is also aimed at facilitating the work of the Judiciary so that
the law enforcement authority may have a clear option in order to solve a
particular case. However, when the Legislative Power fails to set aside and /
or adopts laws which are contrary to the American Convention, the Judiciary
is bound to honor the obligation to respect rights as stated in Article 1(1) of
the said Convention, and consequently, it must refrain from enforcing any
laws contrary to such Convention. The observance by State agents or
officials of a law which violates the Convention gives rise to the international
liability of such State, as contemplated in International Human Rights Law,
in the sense that every State is internationally responsible for the acts or
omissions of any of its powers or bodies for the violation of internationally
protected rights, pursuant to Article 1(1) of the American Convention. 13
124. The Court 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 “conventionality control
[control of compliance]” 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. (underlining added).
11
Previosly, the “control of compliance” has been referenced in some concurring opinions by the
judge Sergio García Ramírez. Cf. His opinions in the Case of Myrna Mack Chang v. Guatemala, resovlved
on November 25, 2003, para. 27; Case of Tibi v. Ecuador, of September 7, de 2004, para. 3; Case of
Vargas Areco v. Paraguay, supra note 8, para. 6 and 12.
12
Case of Almonacid Arellano v. Chile. Preliminary Objections, Merits, Reparations and Costs.
Judgment of September 26, 2006. Series C No. 154, para. 123 to 125.
13
Cf. Case of Ximenes Lopes v. Brazil. Merits, Reparations and Costs. Judgment of July 4, 2006.
Series C No. 149, para. 172; and Case of Baldeón García v. Perú. Merits, Reparations and Costs.
Judgment of April 6, 2006. Series C No. 147, para. 140.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents