An Inter-American Constitutional Court? the Invention of the Conventionality Control by the Inter-American Court of Human Rights

Abstract

SUMMARYINTRODUCTION 46I. THE CONVENTIONALITY CONTROL IN BRIEF 49II. FROM SUBSIDIARITY TO INTEGRATION AND BACK 52A. The Traditional Understanding of the Principle of Subsidiarity 52B. The Integration Principle 54C. The Conventionality Control and the Legal Constraints of Domestic Judges 60D. The Weak Legal Justification of the Conventionality Control or the Integration Principle 62III. FROM THE INTER-AMERICAN COURT TO AN INTER-AMERICAN CONSTITUTIONAL COURT 64A. The Conventionality Control and the Judicialization of the InterAmerican System 64B. The Conventionality Control as Constitutional Control or Judicial Review 65C. The Court as the Final Interpreter of the Convention 69IV. THE RELATIONSHIP BETWEEN LATIN AMERICAN AND INTER-AMERICAN JUDGES 70A. Multiple Interpreters of the Convention.........71B. The Court and Latin Precedents 74C. National Courts and Precedents 77V. IMPROVING THE INTEGRATED INTER-AMERICAN MODEL 79A. A Justification for the Integration Model 79B. A New Conventional Model 871. Facilitating and Promoting the Interaction between the Court and National Judges 872. Expanding the Standing to Request Advisory Opinions 89C. A New Procedural Model 90D. Improving the Quality of the Court's Legal Reasoning 90CONCLUSION 91INTRODUCTIONCharles Evans Hughes said more than a hundred years ago that [w]e are under a Constitution, but the Constitution is what the judges say it is.1 Today, nevertheless, in Latin America, it would be more appropriate to say that we are under the Convention on Human Rights, but the Convention is what the judges of the Court of Human Rights say it is. This change in the paradigm comes thanks to the conventionality control theory developed by the InterAmerican Court of Human Rights (Court or Inter-American Court) in the last several years.2 3 In brief, this conventionality control (or control of conventionality) demands that inter-American and domestic judges examine the compatibility of national rules and practice with the Convention on Human Rights (Convention or American Convention)1 as interpreted by the Court.4 For domestic judges, this duty comes in addition to traditional constitutionality control or judicial review within their respective States.Since the Court started to use the concept of conventionality control, a plethora of articles have explained its origins, legal foundations, development, characteristics. …