33
American countries, referred to in paras. 226 to 232 of the Judgement in the Case
of Cabrera Garcia and Montiel Flores v. Mexico, which motivates this separate
concurring opinion.
84.
Finally, this trend is evident in recent legislative reforms, as in the
Constitution of the State of Sinaloa (2008). In this supreme local code, criteria is
established for interpreting the fundamental rights and "its meaning is determined
in accordance with international instruments incorporated into the Mexican legal
system and which meet the criteria applicable to the international protection of
human rights recognized by the Mexican state, especially the Inter-American Court
of Human Rights.” 117 (Underlining added).
V. TOWARDS AN IUS CONSTITUTIONALE COMMUNE IN THE AMERICAS
85.
The interaction between international and constitutional law is inescapable
and its communicating vessels are constricted. On the one hand, the
"internationalization" of various categories that exist in the national scope of
constitutional States is evident, especially with international covenants on human
rights and the creation of universal and regional systems of protection, with the
purpose that these international instruments are implemented and be truly
effective by the States. It moves from the traditional "constitutional guarantees" to
"guarantees of the Convention," having its maximum level of development with the
judgments dictated by international tribunals.
86.
The doctrine of “diffused control of conformity with the Convention” seems to
have been adopted by the I/A Court of H.R. in an evolutionary process of
"internationalization," upon having influenced the practices of national high courts.
(see supra para. 29). Moreover, the influence that from 2006 is set by the InterAmerican Court to "irradiate" jurisprudence and therefore achieve the national
reception of international standards in those States Party to the Convention,
produces an intensity and depth of "nationalization" or "constitutionalization" of the
International Law of Human Rights, as evidenced by the receipt of that doctrine by
the national high courts (see above paras. 28 and 30).
87.
In the present 2010, said doctrine has been reiterated by the I/A Court of
H.R. in eight contentious cases, reflecting its consolidation. Its elements and
distinctive characteristics will surely remain being carefully analyzed by the InterAmerican and national judges. It does not aim to establish which body has the final
word, but to encourage creative jurisprudential dialogue, responsible and
committed to the effectiveness of fundamental rights. National judges will now
become the first Inter-American judges. It is they who bear the greatest
responsibility to harmonize national legislation within the Inter-American
parameters. The I/A Court of H.R. should monitor this and be fully aware of the
standards that will be constructed through the use of its jurisprudence, considering
also the "national discretion" that nation-States have to interpret the Inter-American
corpus juris. 118 Much is anticipated from the Inter-American judges and much is
117
Article 4 Bis C-II. The reform was pubished in the Official Newspaper of said Federal Entity on
May 26, 2008.
118
On this doctrine, Cf. García Roca, Javier, El margen de apreciación nacional en la interpretación
del Convenio Europeo de Derechos Humanos: soberanía and integración, [The margin of national
appreciation of the European Convention on Human Rights: soveriegnty and integration] Madrid, Civitas,
2010.
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