10
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 interAmerican system for the protection of human rights. (underlining added)
24.
The “diffused control or diffused control of conformity with the Convention”
converts the domestic judge into an Inter-American judge: in the first and true
guardian of the Convention, its Additional Protocols (possibly other instruments)
and the jurisprudence of the I / A Court of HR that interprets that law.
The
domestic judges and bodies charged with the administration of justice have the
important mission of safeguarding the fundamental rights, not only of fundamental
rights under the domestic forum, but also of the set of values, principles, and
human rights that the State has recognized in international instruments and whose
international commitment it has assumed. The domestic judges become the first
interpreters of international norms if the subsidiary, complementary, and
contributory nature of the Inter-American bodies are considered with respect to
those provided in the domestic forum of American States and the new “mission”
that they now have to safeguard the inter-American corpis juris through this new
“control.”
25.
This evolving process of domestic reception of international law of human
rights is clearly expressed in important legislative reforms in the national States,
upon incorporating different constitutional clauses in order to receive the influx of
International Law. This occurs with the recognition of the constitutional hierarchy of
the international human rights treatises,37 or also by accepting their
supraconstitutional nature when they are more favorable;38 the recognition of their
specificity in this matter;39 the acceptance of the pro homine or favor libertatis
principles as interpretive national criteria;40 the incorporation of "open clauses" for
receiving other rights under convention regulations; 41 or in constitutional clauses
to interpret the rights and freedoms "in accordance with" international human
rights instruments, 42 among other scenarios.43 Thus, the norms of the convention
acquire constitutional status.
37
In an explicit manner, for example, in Argentina (art. 73) and the Domincan Republic (art.
74(3), of the new Constitution proclaimed in January 2010).
38
Bolivia (art. 256); Ecuador (art. 424); and Venezuela (art. 23).
39
With independance of the normative heirarchy provided, an important number of constitutional
texts recognize some type of specificity to the international treatises on human rights, for example, in
Argentina, Bolivia, Chile, Ecuador, Guatemala, Colombia, Paraguay, Perú, Dominican Republic and
Venezuela. Moreover, in the Federal Mexican Entities of Sinaloa, Tlaxcala, and Querétaro.
40
For example, in Peru (art. Fourth); Ecuador (art. 417); and in the new Constitution of the
Dominican Republic, of January 2010 (art. 74.4).
41
For example, Brazil (Article 5.LXXVII.2), Bolivia (art. 13.II), Colombia (art. 94), Ecuador (art.
417), Panamá (art. 17), Perú (art. 3), Dominican Republic (art. 74.1) y Uruguay (art. 72).
42
For example, Bolivia (art. 13.IV), Colombia (art. 93), Haití (art. 19) and in the Federal Mexican
Entities of Sinaloa (4º Bis C), Tlaxcala (Article 16 B) and Querétaro (Considerando 15).
43
On the “interpretation pursuant” to the international pacts, see Caballero, José Luis, La
incorporación de los tratados internacionales sobre derechos humanos en México y España, [The
incorporation of international treatises on human rights in Mexico and Spain], México, Porrúa, 2009.
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