11
26.
The development illustrated of incorporation of international human rights at
the national level, is also due to the domestic jurisdictions, especially the high
constitutional judicial bodies, which have progressively favored dynamic
interpretations that promote and enable the reception of human rights established
in international treaties.44 A true "constitutional block" forms, which although it
varies from country to country, the tendency is to not only consider human rights
enshrined in international covenants, but also to consider the jurisprudence of the
I/A Court of H.R. Thus, sometimes the “block of conformity with the convention” is
subsumed in the "constitutional block", to which upon assuring the "constitutional
control,” the “control of conformity with the Convention” is also effectuated.
27.
Specifically, the I/A Court of H.R. in paragraphs 226 to 232 of the Judgment
so referred to in this concurring opinion, has attempted to demonstrate the way in
which the tribunals of “the highest hierarchical level” have applied and accepted
the “control for conformity with the convention,” in consideration of Inter-American
jurisprudence. It represents a clear manifestation of this interesting process of
“reception at the domestic level of international law of human rights” and without a
doubt “constitutes one of the positive outstanding features to date, which should be
recognized, maintained, and continue to grow.”45
28.
In this regard, in the judgment that inspires this concurring opinion, there
are excerpts from several rulings of the Constitutional Chamber of the Supreme
Court of Costa Rica; the Constitutional Tribunal of Bolivia; of the Supreme Court of
Justice of the Dominican Republic; of the Constitutional Tribunal of Peru; of the
Supreme Court of Justice of the Nation of Argentina; and of the Constitutional
Court of Colombia. These are some examples that allow one to understand the
dynamic reception of jurisprudence of international human rights law and of
jurisprudence of the convention.
29.
Upon a closer look at the decisions mentioned, it can be seen that some of
the standards were adopted prior to the Praetorian establishment of “the control for
conformity with the convention” in the Case of Almonacid Arellano v. Chile of 2006, as
happened in the precedents of Argentina (2004) Costa Rica (1995), Colombia
(2000), Dominican Republic (2003) and Peru (2006). Clearly, the I/A Court of H.R.
created the doctrine of "diffused control of conformity with the Convention" noting the
trend of "constitutionalization" or, if you will, "nationalization"46 of the "international
law of human rights" and particularly the acceptance of jurisprudence of the
convention as an element that is "hermeneutic" and of "control" of internal norms
by domestic courts themselves; that is, the I/A Court of H.R. received the influx of
the jurisprudential practice of national judges in order to create the new doctrine of
"diffused control of conformity with the Convention."
30.
In turn, we see that several high national judicial bodies incorporated the
parameters of the "diffused control of conformity with the Convention" due to
recognition of the jurisprudence of the I/A Court of H.R. from the creation of the
44
Two of the most representative constitutional jurisdictions that since the early nineties have
adopted outstanding interpretations to encourage the applicability of international treaties on human
rights are the Constitutional Chamber of the Supreme Court of Costa Rica and the Constitutional Court
Colombia. The first granted supranational character to the international human rights treaties to the
extent that they are more favorable than those provided in the Constitution. The second, acknowledging
in these treatises in the "constitutional block.” Both jurisdictions have made significant further
developments in this area.
45
Para. 9 of the concurring opinion issued by judge Sergio García Ramírez, in the judgment of the
Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Perú, supra note 15.
46
Cf. García-Sayán, Diego, “Una Viva Interacción: Corte Interamericana y Tribunales Internos”,
op. cit., supra note 6.
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