martes, 24 de marzo de 2015

Artículo sobre el control de convencionalidad

Reporte elaborado por Oswaldo Ruiz-Chiriboga.

En la última edición de la revista Texas International Law Journal (Vol. 50, No. 1, 2015, pp. 45-93), Ariel E. Dulitzky publicó el artículo “An Inter-American Constitutional Court? The Invention of the Conventionality Control by the Inter-American Court of Human Rights”. A continuación, un extracto de la introducción del artículo:

“First this Article will discuss how the theory of conventionality control partly modifies the theoretical paradigm on which the inter-American system of human rights rests. Traditionally, the inter-American human rights system was conceived of as being subsidiary and complementary to the national legal order. The conventionality control, however, does not act in a complementary or subsidiary manner, but places the American Convention and its inter-American judicial interpreter, the Court, at the top of the legal order. The Convention is no longer a subsidiary treaty but an integral, fundamental, and hierarchically superior norm of the national domestic legal system. In this way, the Court is developing a new principle, which I will refer to as the integration principle. This principle comes to complement, not to replace the traditional principle of subsidiarity. This transformation occurred, this Article argues, despite the lack of clear textual support in the Convention.

Then, this Article delves into some of the consequences of this new approach. It explains that the conventionality control, by demanding that national judges apply the American Convention over domestic legislation as interpreted by the Court, positions the Inter-American Court as a kind of inter-American constitutional court. The conventionality control also changes the role of domestic judges by requiring them to be the guardians of the supremacy of the Convention as interpreted by the Court. Additionally, the Court may be requiring Latin American tribunals to exercise a judicial review that they are prevented from doing under their own Constitutions. Rather than having a single Inter-American Court as the treaty’s interpreter, this Article speculates about the consequences of having thousands of Latin American courts and tribunals, as required by the conventionality control, each interpreting the American Convention. This Article then presents some questions on the proper balance between national and inter-American judges. In sum, I argue that the conventionality control is one of the tools the Court uses to define its own identity and role in the hemisphere and to continue the move to a more judicialized approach to human rights protection. Nevertheless, this Article argues that the Court’s approach to conventionality control is unidirectional as it does not properly embraces domestic judges in this enterprise.”

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