65.
Given the proportions, I would expect a similar scenario in the inter-American
context. In the area of rulings on constitutionality handed down by the supreme
constitutional courts of the nations of the Americas, a review of compliance with
human rights conventions is also exercised, given existing integration between the
constitutional orders of the states Parties to the Convention and the inter-American
order established under its Ius Constitucionale Commune governing the protection of
human rights in our continent. It is impossible to think of the protection of human
rights in the states of the Americas without considering the existing synergy and
dialogue between nations and the inter-American regional bloc,47 all centered, in the
end, around the American Convention and imbued with the pro persona principle.
66.
I also believe that the arguments of coherence and integrity underlying the
reiteration of the Court’s case law on Article 26 of the Convention are matched to the
reality of transconstitutionalism. The fact of sharing objectives and problems between
national courts (constitutional law) and international courts (international human
rights law) has given rise to an irreversible process of converging agendas and
reciprocal influence.
67.
This movement has been recognized by illustrious judges of this InterAmerican Court. In 2007, Judge Cançado Trindade noted that by the middle of the
20th century, there was already talk of the “internationalization” of constitutional law
and, at the turn of the 20th century, there was talk of the “constitutionalization” of
international law. Both processes have fostered interaction between national legal
systems and the international legal system in the protection of human rights.48
68.
In this same sense, in his dissenting opinion in the case of Cabrera García and
Montiel Flores v. Mexico (2010), Judge Mac-Gregor recalled that concepts of
constitutional law had been assimilated from the origin and during the development
of international human rights law.49 When analyzing the mechanisms for review of
compliance with human rights conventions, which echo national mechanisms of
constitutional oversight, the judge described this dynamic of approximation between
international human rights law and constitutional law as the “internationalization” of
constitutional categories. In the same vein, in a 2013 academic publication, Judge
Pedro Nikken50 pointed out that international human rights law tends to permeate
constitutional law and originates from it.
69.
As can be clearly seen, the interaction between the constitutional and
conventional orders takes on special characteristics in the Latin American context as
a result of the historical evolution of the constitutions of the countries that make up
the region and as a result of the development of the IAHRS, which derives from the
singular constitutional trajectory of the countries that compose it.
70.
This dynamic of interaction is the objective of the so-called Ius Constitucionale
Commune in Latin America, indicative of the existence of a "Latin American network
Cf. CYRILLO, Carolina; FUENTES-CONTRERAS, Édgar Hernán; LEGALE, Siddharta. “The InterAmerican Rule of Law in South American constitutionalism.” In: Sequência (Florianópolis), vol. 42, no. 88,
pg. (1-27), 2021. pg. 19-20.
47
Cf. Case of the Dismissed Congressional Employees (Aguado - Alfaro et al.) v. Peru. Interpretation
of Judgment of Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 30, 2007,
Series C No. 174. Separate opinion of Judge Cançado Trindade, para. 6-7.
48
Cf. Case of Cabrera García and Montiel Flores v. Mexico. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of November 26, 2010. Series C No. 220. Separate opinion of Judge
Eduardo Ferrer Mac-Gregor Poisot, para. 21.
49
NIKKEN, Pedro. “El Derecho Internacional de los Derechos Humanos en el derecho interno.”
Revista IIDH, vol. 57, (pgs. (11-68), 2013. pg. 42-43.
50
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