The final word?

Constitutional dialogue and the

Inter-American Court of Human Rights
International Journal of Constitutional Law, Vol. 15(2) (forthcoming 2017)

Jorge Contesse
Assistant Professor of Law
Rutgers Law School
jorge.contesse@rutgers.edu
973-353-3041
2 The Final Word?

The final word? Constitutional dialogue and the Inter-American

Court of Human Rights

Jorge Contesse ∗

In this Article, I discuss the ways in which the Inter-American Court

of Human Rights addresses cases adopting a novel approach to legal
adjudication—one that relies on domestic notions of constitutional
law carried out by domestic jurisdictions. Most scholarship on the
inter-American human rights system assumes a top-down approach,
whereby the Court merely dictates what countries must do. I argue
that a new, bottom-up approach is in place and, further, is required to
advance the Court’s legitimacy, especially in the face of criticism by
countries, legal scholars and advocates for the Court’s decisions as
an illegitimate intervention into domestic affairs. To this end, I
critically examine the conventionality control doctrine, whereby
domestic judges are expected to decide as if they were “inter-
American human rights judges,” and I discuss two decisions that shed
light on how the Inter-American Court could use a bottom-up model
of constitutional dialogue with domestic jurisdictions.

I. Introduction
Human rights law is tainted with a certain sort of moral
superiority. We often expect international human rights law to provide
us with the right solution to social problems. Those who favor free
speech are on the right side of the equation; anyone who discriminates,
and therefore violates someone’s human rights, is wrong. Caring for
the dispossessed, the displaced, and the vulnerable is not only morally,
but also legally correct. That, at least, is what human rights law
teaches us: to protect free speech, condemn discrimination, and defend
those who cannot defend themselves when they are injured or insulted.
Scholars and advocates often assume that if one law fails to deliver a

Assistant Professor of Law, Rutgers Law School. For their extremely useful
∗

comments, at different stages of this project, I am grateful to Adil Haque, Dan

Brinks, Pablo Contreras, Ariel Dulitzky, Karen Engle, Par Engstrom, Owen Fiss,
Roberto Gargarella, Laurence Helfer, Marisa Iglesias, Paul Kahn, Dianne Otto,
Sabrina Safrin, Reva Siegel, Ximena Soley, Aída Torres Pérez, and participants of
human rights law workshops at Cardozo, Columbia, Harvard (IGLP), NYU, Palermo
University, the Universidad de los Andes, the University of Texas-Austin, the Third
Annual Junior Faculty Forum on International Law, held at the University of
Melbourne, and the Rutgers Law faculty colloquium. All errors are my own.
 The Final Word?   3

fair response to a given problem, that law must be part of local, not
international, law. It is as if international law always “gets things
right.”
Consider the political and social context in which international
human rights law currently operates in Latin America. The current
context is not the same as that of 20 or 30 years ago, when the region
was riddled with authoritarian regimes. Back then, human rights law
could indeed act as a moral “superior” because there was a moral
“inferior,” namely, autocratic governments carrying out systematic
human rights violations against their own people. Regional human
rights bodies adopted a position where they could prescribe, in a top-
down fashion, what governments could or could not do. Today, the
Inter-American system for the protection of human rights operates in a
more complex social, political, and legal climate. To be sure, there still
are major human rights. Some relate to the shadow of past
authoritarianism whereas other issues relate to a dramatic present of
human rights crises. However, democratic regimes are now the norm
in Latin America, and the relationship between these governments and
the organs of regional rights protection warrants revision, as shown by
calls made by states seeking greater room for deference by regional
bodies to states’ decisions.
This Article analyzes the aforementioned topic by paying special
attention to the doctrine known as “conventionality control,”
articulated by the Inter-American Court of Human Rights (IACtHR) in
2006 and increasingly implemented since, in the context of calls for
transnational judicial dialogue among states and the inter-American
organs. The conventionality control doctrine —praised as “a genuine
constitutional big bang”—1 holds that local judges are obligated to
disregard laws that contradict the American Convention on Human
Rights (ACHR). The doctrine suggests a relationship between the
inter-American human rights system and states structured as a
conversation on the protection of rights. A bold doctrine, it aims at
giving all judges in the Americas —now called “Inter-American
Judges,” by current Inter-American Court judge Eduardo Ferrer— the
power to impugn legislation in tension with the ACHR and, moreover,
with the Inter-American Court’s own interpretation of the
Convention’s provisions. Not without its critics, the doctrine of

1
Laurence Burgorgue-Larsen, Chronicle of a fashionable theory in Latin
America: decoding the doctrinal discourse on conventionality control, in 35 YEARS
OF INTER-AMERICAN COURT OF HUMAN RIGHTS: THEORY AND PRACTICE, PRESENT
AND FUTURE 637, 653 (Y. Haeck, C. Burbano Herrera, O. Ruiz Chiriboga, eds.,
2016).
4 The Final Word?

conventionality control, as some argue, irrupted with a sweeping

interpretation of the Convention’s norms — e.g., by initially failing to
consider states’ own domestic arrangements, that is, whether a state’s
constitution granted judges the power to review legislation in the first
place, and if so, whether such power was to all or just some judges. In
subsequent opinions, the Court has refined the doctrine. Still, some
questions on the doctrine’s application remain.
There are accounts that could render the doctrine more acceptable
from the standpoint of the rule of law and democratic deference to
states.2 Some see the Inter-American Court’s doctrine as overreaching
and based on an “absolutist interpretation” of the American
Convention.3 The issues that the doctrine arises, however, lie not with
domestic law, as most accounts tend to explain, but with international
law. International law does not necessarily provide the best answer to
a particular situation. Sometimes domestic constitutional law may best
situate the problem at hand and, therefore, provide a sounder response
to it. Thus it is no longer true that international law must act as the
moral or legal superior. Rather, it must sometimes follow, letting
domestic constitutionalism lead the way. I offer an alternative
understanding of the conventionality control doctrine based on such an
understanding of the relationship between domestic law and
international law — one that reconciles the demos’ capacity to regulate
its own affairs with international human rights law’s attempt, and duty,
to scrutinize states’ behavior.

II. The conventionality control doctrine

The Inter-American Court of Human Rights has articulated a

doctrine, known as “conventionality control,” under which judges and
other national authorities are obligated to disregard domestic
regulations that fail to conform to the clauses of the American
Convention on Human Rights as well as the Court’s authoritative
interpretation of the Convention.4-5 By charging judges and national

2
See infra section II.B.
3
See Ariel E. Dulitzky, An Inter-American Constitutional Court? The
Invention of the Conventionality Control by the Inter-American Court of Human
Rights 50 TEXAS INT’L L.J. 45, 52 (2015).
4
The American Convention on Human Rights (also known as the “San José
Pact”), adopted in 1969 and in force since 1978, enumerates a series of fundamental
rights and establishes an Inter-American Court of and Commission on Human Rights
as the main bodies tasked with protecting and monitoring the enforcement of the
duties arising from said international compact.
 The Final Word?   5

authorities with this responsibility, conventionality control seeks to

strengthen human rights protection in the region. However, its
implementation has not been without difficulties and, as explained
below, has generated much criticism from specialists.

A. What does “conventionality control” mean?

It was the former judge of the Inter-American Court of Human

Rights, Sergio García Ramírez, who, in a number of separate opinions,
first mentioned the idea of reviewing domestic statutes to ensure their
conformity with the provisions of the American Convention of Human
Rights.6 Not until September 2006, however, did the Court decide to
adopt García’s doctrine. In a case against Chile that concerned the
existence of an amnesty law impeding the investigation and
prosecution of gross and massive human rights violations committed
during Augusto Pinochet’s dictatorship,7 the Inter-American Court
declared that
judges and domestic courts are bound by the rule of law
and are thus obligated to apply existing provisions of
the legal framework. However, when a state has ratified

5
The first holding in which the Inter-American Court in its entirety — that is,
not just one of the judges, in separate opinions, as had happened before — upheld
this doctrine was in Almonacid Arellano v. Chile, issued in September 2006. Soon
after, the IACHR restated this notion of “conventional control,” albeit with some
slightly changes in nuance and other larger differences, in, among others, the
following holdings: Dismissed Congressional Employees v. Peru (2006), La Cantuta
v. Peru (2006), Boyce et al. v. Barbados (2007), Heliodoro Portugal v. Panama
(2008), Radilla Pacheco v. Mexico (2009), Ibsen Cárdenas and Ibsen Peña v.
Bolivia (2010), Gomes Lund at al. (“Guerrilha do Araguaia”) v. Brazil (2010),
Cabrera García and Montiel Flores v. Mexico (2010) (expanding the doctrine to all
state authorities, not just judges), Gelman v. Uruguay (2011), Fontevecchia and
D’amico v. Argentina (2011) (in this case, labeling it as a “control of conformity”),
López Mendoza v. Venezuela (2011), Atala Riffo and Daughters v. Chile (2012) Río
Negro Massacres v. Guatemala (2012), and Mendoza v. Argentina (2013).
6
In its holdings in Myrna Mack Chang v. Guatemala, (November 25, 2003);
Tibi v. Ecuador (September 7, 2004) and López Álvarez v. Honduras (February 1,
2006). See Juan Carlos Hitters, Control de constitucionalidad y control de
convencionalidad. Comparación (Criterios fijados por la Corte Interamericana de
Derechos Humanos), 7(2) ESTUDIOS CONSTITUCIONALES 109, 113-14 (2009).
7
Amnesty laws like those of Chile can also be found in other countries,
including Argentina, which in 1986 and 1987 produced the so-called “impunity
laws” (or Full Stop and Due Obedience Acts), Uruguay, which adopted the “Expiry
Law” in 1986, or Brazil, which did the same in 1979.
6 The Final Word?

an international treaty such as the American

Convention [on Human Rights], its judges, as part of
the state apparatus, are also subject to its provisions. As
such, they are obligated to ensure that the effects of the
Convention’s provisions are not undermined by the
application of laws repugnant to its objective and
purpose, and which are consequently without legal
effect. In other words, the judiciary must exercise a
type of conventionality review of domestic legal
standards applicable to particular cases against the
American Convention on Human Rights. In so doing,
the judiciary must take into account not only the treaty,
but also the manner in which it has been interpreted by
the Inter-American Court of Human Rights, the final
arbiter of the American Convention.8

Since the American Convention does itself not contain any rule
requiring national judges to carry out this type of review, the first
concern raised by the doctrine is that it lacks an actual basis in law.9
The Inter-American Court has been deciding cases since the late
1980s. It is surprising, to say the least, that it took it more than two
decades to “discover” that domestic judges have an obligation to
disregard laws that conflict with the Convention. Nowhere in the text
of the American Convention is there a provision that gives such power
to the Inter-American Court.10 The basis for this obligation, the Court

8
Inter-American Court of Human Rights, Almonacid Arellano v. Chile,
Preliminary Objections, Merits, Reparations and Costs. Judgment of September 26,
2006, Series C No. 154, para. 124.
9
See Christina Binder, The Prohibition of Amnesties by the Inter-American
Court of Human Rights 12 GERMAN L.J. 1203 (2011); Ximena Fuentes Torrijo,
International and domestic law: definitely an odd couple 77 REV. JUR. U.P.R. 483
(2008). In a similar vein, see Karlos Castilla Juárez, Control interno o difuso de
convencionalidad? Una mejor idea: la garantía de los tratados, 13 ANUARIO
MEXICANO DE DERECHO INTERNACIONAL 51, 81 (2013).
10
See Ariel E. Dulitzky, An Inter-American Constitutional Court? The
Invention of the Conventionality Control by the Inter-American Court of Human
Rights 50 TEXAS INT’L L.J. 45, 53 (2015) (“From the text of the Convention nothing
can be derived about how the Convention should be domestically incorporated nor if
it should rank at any particular level in the domestic system.”). The expansive law-
making feature of the Inter-American Court has been the subject of critique by legal
scholars. See, e.g., Ezequiel Malarino, Judicial Activism, Punitivism and
Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American
 The Final Word?   7

maintains in the following paragraph, lies in states’ duty to enforce

international treaties “in good faith,” pursuant to Article 26 of the
Vienna Convention on the Law of Treaties. The Court also cites
Article 27 of the Vienna Convention, which establishes that a state
“may not invoke the provisions of its internal law as justification for
its failure to perform a treaty.”11 This explanation, as scholars have
observed, is wanting.12 Others believe that the basis for the
conventionality control lies on the general obligation that the
Convention vests upon states to adopt all necessary measures to give
effect to the Convention’s norms.13 But, as Binder points out, since
conventionality control allows the Court to rule that domestic
legislation lacks any legal effect, the argument that uses Article 2 of

Court of Human Rights 12 INT’L. CRIM. L.R. 665 (2012) and Binder, supra note __,
at 1204.
11
Néstor Pedro Sagües, Obligaciones internacionales y control de
convencionalidad, 8(1) ESTUDIOS CONSTITUCIONALES 117, 120 (2010) and Juana
María Ibáñez Rivas, Control de convencionalidad: precisiones para su aplicación
desde la jurisprudencia de la Corte Interamericana de Derechos Humanos,
ANUARIO DE DERECHOS HUMANOS 103, 106-07 (2012).
12
According to Binder, the conventionality control doctrine lacks “a firm
legal basis in the American Convention on Human Rights.” Further, the Court’s
reference to Article 27 of the Vienna Convention “is not pertinent insofar as Article
27 VCLT is, according to the overwhelming opinion, directed to inter-state
relations.” Binder, supra note ___, at 1216. Fuentes, reviewing the travaux
préparatoires for the Vienna Convention, explains that “this provision [Article 27 of
the Vienna Convention] does not say anything about how national legal systems
should define the incorporation of international law into national law nor does it
delve upon the operation of international law in domestic law.” Fuentes, supra note
___, at 488. In a similar vein, see Manuel Fernando Quinche Ramírez, El control de
convencionalidad y el sistema colombiano 12 REV. IBEROAMERICANA DE DERECHO
PROCESAL CONSTITUCIONAL 163, 169 (2009) (“the way in which the domestic legal
system of the different State Parties contemplates the incorporation of both
international conventions and international courts’ doctrines is crucial for the
conventionality control”; my translation).
13
See Manuel Fernando Quinche Ramírez, El control de convencionalidad y
el sistema colombiano 12 REV. IBEROAMERICANA DE DERECHO PROCESAL
CONSTITUCIONAL 163, 178 (2009) (following former judge Antonio Cançado
Trindade’s dissenting opinion in Aguado-Alfaro: “Article 2 of the American
Convention, under which State Parties are required to bring their domestic legal
system in line with the protection provisions of the American Convention, does
indeed open the door to a ‘control of conventionality’ intended to determine whether
the State Parties have or have not effectively complied with the general obligation
laid down in Article 2 of the American Convention, as well as the one established in
Article 1(1),” at para. 9).
8 The Final Word?

the Convention to explain the doctrine is of little help, if not utterly

contradictory: Article 2 establishes an obligation of states and
therefore it “may be taken as indication that domestic rather than
international action is required.”14
Some may see the doctrine introduced in 2006 as a significant
advance in regional human rights protection. As Castilla Juárez points
out, most authors have praised the adoption of the conventionality
control doctrine.15 Others, however, have warned that it creates
problems of judicial interpretation and have criticized the Inter-
American Court’s haste in introducing a notion that will, at the very
least, affect grants of jurisdiction made by States at the local level.16
Following the holding in Almonacid, the Court has reiterated
the notion of conventionality control in a number of rulings.17 For
example, although the Court initially believed that judges were
required to carry out “some type of review,” (without indicating what
sort of review that might entail), it would later invoke an unqualified
notion of “review,” without, however, describing how this “pure”
review differs from the earlier “type” of review. The Court added that
judges were required to exercise conventionality control not just
involved parties requested it, but by obligation. Finally, the Court
suggested that national judges are obligated to ensure the fulfillment of
the “practical effects” of international treaties, a concept that would
add another element to conventionality control.18
Nevertheless, as some have pointed out, it is not clear how, out
of a prohibition on using domestic norms to justify noncompliance
with international obligations—which can, of course, trigger
international responsibility on the state’s part— arises a specific
requirement to reassign court jurisdiction at the domestic level, thus
endowing judges with powers that the domestic legal system may not

14
Binder, supra note ___, at 1216.
15
A brief bibliographical list can be found in Castilla Juárez, supra note 7.
16
Offering varying degrees of criticism, see Fuentes, supra note 7; Oswaldo
Ruiz-Chiriboga, The conventionality control: examples of (un)successful experiences
in Latin America, 3(1-2) INTER-AM. & EUROPEAN HUM. RTS. J. 200 (2010); Castilla
Juárez, supra note ___, and Pablo Contreras, “Control de Convencionalidad Fuerte y
Débil”, available at http://corteidhblog.blogspot.com/2012/08/bloguero-invitado-el-
control-de.html.
17
See supra note 4.
18
Ibáñez, supra note ___, at 112.
 The Final Word?   9

grant them.19 This problem becomes evident when the diverse models
of constitutional review found in Latin America are considered.20
Taking Argentina, Chile, and Colombia as examples, it is possible to
illustrate the aforementioned problem; while in Argentina the power of
constitutional review is “diffuse,” that is, held by all judges, Chile has
“concentrated” constitutional review, in which only a single
specialized court possesses the power to invalidate laws that
contravene the Constitution, and Colombia, a mixed system, where the
Constitutional Court has the power to strike down legislation but with
certain mechanisms whereby district judges may impugn the
constitutionality of legal statutes. In articulating the notion of
conventionality control, the Inter-American Court has failed to
adequately consider the distinction between diffuse, concentrated and
mixed models of constitutional control. Thus, as a matter of logic, the
obligation introduced by the Court is fulfilled differently depending on
whether national laws grant all or only some judges the power to
invalidate laws counter to the Constitution.
This means that if in Chile a court of first instance determines that
a domestic law contradicts any clause of the American Convention (or
its interpretation by the Inter-American Court), under the
conventionality control doctrine, the court would have to refuse to
apply that law. Yet in so doing, the court would violate those laws
stipulating that only the Constitutional Court has the power to declare
legal precepts unconstitutional (specifically, article 93, No. 6 of the
Chilean Constitution). In Argentina, meanwhile, that same court of
first instance could discharge the duty imposed upon it by the Inter-
American Court without imperiling internal laws regarding the
assignment of court jurisdiction. In Colombia, the result may vary
depending on which tribunal hast the issue at hand: courts may resort
to alternative doctrines, such as the “constitutional block” theory,
which would allow them to carry out the conventionality control,
although based on domestic legal theory, not the Inter-American
Court’s.
The Inter-American Court failed to acknowledge these
problems when it introduced the doctrine, in Almonacid. It was in the

19
See María Carmelina Londoño Lázaro, El principio de legalidad y el
control de convencionalidad de las leyes: confluencias y perspectivas en el
pensamiento de la Corte Interamericana de Derechos Humanos, 128 BOLETÍN
MEXICANO DE DERECHO COMPARADO 810 (2010).
20
Binder, supra note ___, at 1216 (observing that the implementation of the
conventionality control “may pose institutional and procedural problems, especially
for states with centralized systems of norm control”).
10 The Final Word?

case Dismissed Congressional Employees (Aguado-Alfaro et al.) v.

Peru,21 decided two months after Almonacid, that the Court added a
crucial modification to conventionality control, determining that the
“organs of the Judiciary” must carry it out “obviously, within the
framework of their respective competences and of the corresponding
procedural regulations.”22 In a sense, this elaboration of the doctrine
improved it since it now abides by the specifics of diverse domestic
regulations, even though, as some specialists have noted,
inconsistencies still remain. For example, since the Court insisted that
conventionality control must be carried out ex officio, we might ask
what happens when the discrepancy between legal provisions and the
constitution can only be resolved by formal request. According to the
Inter-American Court this would be a problem, but in certain countries
constitutional review of the law can be exercised only by certain
courts, as opposed to all judges, suggesting that the Court is still
confronted with the prospect of overthrowing the domestic organic
standards of the states that give it power. Moreover, the Court —or, at
least, the Court’s most fervent defender of the conventionality
control— assumes that there will always be at least one organ with the
power to disregard domestic legislation that is in opposition to the
American Convention.23 This is a contingent, not a necessary
condition, of inter-American constitutionalism and therefore the Court
should take it into consideration: if a state decided to go against its
international obligations, it would obviously infringe international law.

21
Inter-American Court of Human Rights, Dismissed Congressional
Employees v. Peru, Preliminary Objections, Merits, Reparations and Costs,
Judgment of November 24, 2006.
22
Id., par. 128. This formula would later be reiterated in Radilla-Pacheco v.
Mexico, Preliminary Objections, Merits, Reparations and Costs, Judgment of
November 23, 2009, par. 339; and Atala Riffo and Daughters v. Chile, Merits,
Reparations and Costs, Judgment of February 24, 2012, par. 282. It could be argued
that there is no significant difference between Almonacid and Aguado Alfaro, since
only two months passed between the two decisions. The fact that the Court failed to
notice that the conventionality control’s original formula —that is, Almonacid—
raised serious institutional issues for states demonstrates an inadequate reflection of
the doctrine’s implications.
23
Judge Ferrer writes: “What does not seem reasonable and would be outside
the scope of the Inter-American Court’s interpretation, is that no national body has
jurisdiction to exercise ‘diffuse conventionality control’ with strong great intensity,
that is, to cease to apply the rule to a particular case or with general effects as a result
of its nonconformity with the Convention, since otherwise there would be
international responsibility on the part of the State.” Concurring opinion in Cabrera
García and Montiel Flores, para. 40.
 The Final Word?   11

But that does not mean that the state may not adopt measures that
would render it internationally liable. The Court seems to lose sight of
the separation between international law and municipal law.24
In the European Union’s system, it is possible to find notions
similar to Inter-American conventionality control. For example, the
doctrines of “supremacy” or “direct effect” authorize national judges
to review the legality of domestic standards against those arising from
the Council of Europe,25 leading some observers to equate it with the
Inter-American case.26 However, as Castilla notes, there appears to be
no parallel between these doctrines and conventionality control, since
the European Court of Justice is not comparable to the Inter-American
Court of Human Rights (the equivalent of this court in Europe would
be the European Human Rights Court, which has, in any case,
recognized states’ discretion to determine how human rights standards
fit into their own hierarchy of norms, effectively moving in the
opposite direction of the Inter-American Court).27

24
See HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 419-20 (1952)
(“The question as to whether in case of a conflict between national and international
law the one or the other prevails can be decided only on the basis of the national law
concerned; the answer cannot be deduced from the relation which is assumed to exist
between international and national law.”).
25
The European Court of Justice rolled out these doctrines in 1964 in the
Costa v. ENEL case, developing them further in cases like Amministrazione delle
Finanze dello Stato v. Simmenthal (1978). See Alec Stone Sweet, Constitutionalism,
Legal Pluralism, and International Regimes, 16 IND. J. GLOBAL LEGAL STUD. 621,
636 (2009).
26
Juan Carlos Hitters, Control de constitucionalidad y control de
convencionalidad. Comparación (Criterios fijados por la Corte Interamericana de
Derechos Humanos), 7(2) ESTUDIOS CONSTITUCIONALES 109, 112-13 (2009) (“What
is certain is that “conventionality control” is not only exercised in the regional
system corresponding to a particular area of human rights, but has also long been
applied to European community law, whether by national judges or by the
Luxemburg Court itself.”)
27
European Union members raised some of the same concerns we see in Latin
America about different rules for judicial review when the European Court of Justice
developed its doctrines of direct effect and supremacy. In fact, many countries
openly resisted judicial review for a number of years. See KAREN ALTER,
ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THE MAKING OF AN
INTERNATIONAL RULE OF LAW IN EUROPE (2001). On the increasing recognition by
governments, Council of Europe institutions and national judges of the need for
domestic judicial review of the compatibility of domestic laws and policies with the
European Convention as interpreted by the European Court of Human Rights, see
Laurence R. Helfer, Redesigning the European Court of Human Rights:
Embeddedness as a Deep Structural Principle of the European Human Rights
12 The Final Word?

As can be seen from these facts and from the enthusiasm of

human rights activists and legal scholars, the introduction of
conventionality control generates theoretical questions and practices
that must be addressed. I will now examine several of the attempts that
have been made to increase the doctrine’s coherence. I show that, in
spite of these efforts, no satisfactory progress has been made, leaving
the Inter-American Court with a doctrine that fails to address the
criticism it has received.

B. Reconstructions of the conventionality control doctrine

Some authors, pointing out problems in the way that

conventionality control doctrine has been articulated, have proposed
ways of making the doctrine compatible with the obligations to which
states are required to conform since they agreed to the American
Convention.28 In general, these authors share the intentions outlined in
the doctrine—i.e. the protection and guarantee of human rights—
however, they object to the technical inconsistencies revealed when
the makeup of conventionality control is studied.
There are those who, along with calling for the Inter-American
Court to strive to maintain case law that is “consistent, rigorous, and
reasonable,”29 suggest that the national judges should only exercise
conventionality control (a) if there exists a standard that manifestly
contradicts the American Convention; (b) the Inter-American Court of
Human Rights has previously established an obligatory international
standard that goes against the national norm, and (c) the judiciary
continues to observe the forms and limits prescribed upon it in the

Regime 19 EJIL 125 (2008) and Laurence R. Helfer and Erik Voeten, International
Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe 68 INT’L
ORGANIZATIONS 77 (2014).
28
These obligations are listed in Articles 1 and 2 of the American Convention
on Human Rights, consisting in the obligation to “respect” the “rights and freedoms
herein recognized” (Art. 1) and to adopt such “legislative measures or other
measures as may be necessary to give effect to those rights or freedoms” in cases
where these may not be sufficiently protected at the domestic level (Art. 2).
29
Londoño Lázaro, supra note ___, at 811. If, for example, according to
these “forms and limits,” a presiding judge should lack legal authorization to
invalidate a legal regulation as counter to the Convention, then it seems clear that in
this hypothetical situation it would be simply impossible to carry out conventional
control.
 The Final Word?   13

domestic legal order.30 This attempt to solve the problem does not fix
much as it is perfectly possible for the Court to determine that a type
of norm is “manifestly” incompatible with the American
Convention—as it has done with amnesty laws, for example31—but
that a domestic judge lacks the constitutional power to invalidate or
abolish that law at the domestic level. According to the Court, this
judge would be incurring international liability for her state for not
“taking measures”—nullifying the law, that is— to guarantee the
fulfillment of rights that the American Convention promises (an
obligation detailed in Article 2 of the Convention).
Others, on the other hand, distinguish between “destructive” and
“constructive” facets of conventionality control.32 On one side lies the
traditional model, conceiving of the IACtHR’s work as operating like
a “force that annihilates local regulations” every time it declares a law
in opposition to the Convention,33 or, more specifically, when it
demands domestic judges do so locally. On the other side, there exists
a paradigm in which “constitutional and sub-constitutional
regulations…. should, insofar as possible, be interpreted […] in
compliance with the jurisprudence of the Inter-American Court of
Human Rights.”34 Nevertheless, the idea that interpretation of the

30
Id.
31
See Barrios Altos v. Peru (2001), Almonacid Arellano v. Chile (2006),
Gelman v. Uruguay (2011), among others.
32
Néstor Pedro Sagües, Obligaciones internacionales y control de
convencionalidad, 8(1) ESTUDIOS CONSTITUCIONALES 117, 130 (2010).
33
Id. One problem with the metaphor is that it requires more than the what
the IACHR can provide: in order for a Court holding to effectively “exterminate”
domestic laws, the state in question must provide for some time of regulation by
which the effect of said holding could be obtained. Put differently, the possibility of
“exterminating” laws depends not on the mere will of the Court, but also requires an
act of state specifying that supra regional decisions should be allowed to act as
“death rays.” Insofar as this condition is not met, it is clear that laws found by the
IACtHR to be in violation of the Convention can perfectly well continue to exist in
the domestic legal order. To illustrate the point, take the Chilean case: when the
IACtHR decided that the constitutional provision authorizing the pre-censorship of
certain films violated Article 13 of the Convention (Olmedo Bustos y Otros vs. Chile,
2001), Chile decided to modify its Constitution to go along with the Court’s holding.
However, although the Court declared Chile’s amnesty decree-law incompatible with
the American Convention, Chile still has not repealed that law. Hence it cannot be
said, as does Sagües, that the institution of conventional control “pulverizes” local
laws.
34
Id. Sagües explains: “Consequently, if a clause of a national constitution (or
a subconstitutional statute) admits of 2 or 3 interpretations, for example, [a judge]
14 The Final Word?

Convention must avoid contradictions between it and domestic

regulations assumes that these regulations do not conflict precisely
because they can be interpreted in such a way as to make them
compatible. This, of course, is not always possible. A domestic judge
may know that inter-American case law establishes that self-amnesty
laws are against the American Convention. Under the conventionality
control, the judge, addressing a case of self-amnesty, would be forced
to declare that such law is void. If that judge’s domestic powers do
not allow her to do so, then she simply could not find an interpretation
of her state’s laws that did not contradict the Convention. A conflict
is, in such case, not possible to avoid.35
In a similar vein, there are those who believe that a remedy to the
deficiencies of conventionality control might lie in recognizing that the
IACHR’s goal in establishing the doctrine is “that judges and other
organs linked to the administration of justice comply with the
guarantees of the treaties”—no novelty, of course, as the Court
recognizes, as it entails demanding that judges “directly disregard or
expunge national laws that conflict with the content of international
treaties.”36 In other words, despite the criticism it has received, the
solution that the regional court demands of domestic judges will not
change.
As we can see, the various attempts of authors to make sense of
the conventionality control doctrine have proven insufficient, which
leads one to think of the difficulties this poses for sustaining it all. By
incorporating degrees of intervention into the ways that states allot
courts’ jurisdiction and demanding that judges and other organs of
judicial administration contrast local regulations with those of the
American Convention (and its interpretation as determined by the
Inter-American Court), the regional court demands too much without

must select that one which conforms to, and does not contradict, the American
Convention of Human Rights. A contrario sensu, this means that the judge must
reject interpretations of the constitutional or subconstitutional provision that are
incompatible with the American Convention, or with such interpretations of it as
have been made by the Inter-American Court of Human Rights.” (emphasis added).
35
Former Inter-American judge, and the conventionality control’s founding
father, Sergio García Ramírez has argued in favor of a domestic system of
consultations in jurisdictions where judicial review is vested upon one court only.
See Sergio García Ramírez, El control judicial interno de convencionalidad, 28
IUS—REVISTA DEL INSTITUTO DE CIENCIAS JURÍDICAS DE PUEBLA, 124, 152 (2011).
In a similar vein, see ad hoc judge Ferrer’s concurring opinion in Cabrera García
and Montiel Flores, supra note ___, para 39.
36
Castilla Juárez, supra note ___, at 92-93.
 The Final Word?   15

bothering to take into account the distinctions between countries with

concentrated constitutional control and those with diffuse systems (in
which the possibility of exercises of this type of control is obviously
less problematic).

III. An alternative: the Inter-American Court of Human

Rights as an amplifier of constitutional justice

Is the Inter-American Court completely wrong to expect that its

decisions will guide the way in which judges and other domestic
authorities resolve cases involving fundamental rights? I think not.
Latin American constitutions contain lengthy catalogues of rights that
are modeled, in one way or another, on the content of the American
Convention. In addition, domestic judges do use the jurisprudence of
the Court as well as the regulations of the Convention when the time
comes to make decisions, albeit to varying extents. Lastly, the
Convention does stipulate that states must adopt such measures
without limiting these requirements to specific state organs, making it
necessary to examine the points of interaction between domestic courts
(and their authorities) and the organs of the inter-American system for
the protection of human rights.
The problem is the “all-or-nothing” attitude that the Court has
adopted—in reality, more “all” than “nothing.” The Court wants all
judges to compare their local regulations with those of the Convention
and, where they detect a conflict, to give the latter preference over the
former. Some have said that conventionality control would be just an
extension of judicial review, as it is known since Marbury v. Madison,
another case in which a court expanded its jurisdiction by virtue of its
own action.37 A fundamental difference, however, is that in Marbury,
the Supreme Court of the United States assumed that it had the power
to invalidate legislation (against, moreover, a doctrinal backdrop of the
Federalist Papers), while the Inter-American Court, with its invention
of conventionality control, is attempting to create public powers for
other organs. An additional difficulty is that the Court does not seek to
grant these powers to organs of equivalent or similar rank, such as the
Inter-American Commission or even the political and judicial organs
of the OAS (which would, in any case, be problematic); rather, the
Court seeks to grant them to judicial bodies that operate on a different
level, that is, the state (and all this, without academic sectors or the
states promoting a similar notion).

37
5 U.S. (Cranch 1) 137 (1803). The idea that the Inter-American Court is
becoming a Latin American Constitutional Court goes precisely in this direction.
16 The Final Word?

Conscious of the criticism this act has raised, the Court and
some in the academic community have responded, affirming that there
is a type of “inter-jurisdictional dialogue”38 between local courts and
the Inter-American Court of Human Rights.39 This formula supposedly
promotes the idea that “local courts carry out an interpretation
compliant with the American Convention and the hearings of the Inter-
American Court, but correspondingly make sure that the
interpretations made in this judiciary contexts follow the criteria of the
Inter-American Court.”40 While serving as president of the Court,
Diego García-Sayán cultivated this idea when he asserted in a
concurring opinion that “national courts are called upon to fulfill a
crucial role as one of the main vehicles for translating the obligations
specified in international human rights treaties into domestic norms—
applying them in their case law and other everyday challenges.
National courts must put into practice the legally binding decisions of
the Inter-American Court that interpret and define international
regulations and standards of human rights protection.”41 Moreover, in
a visit to the Mexican Supreme Court in February 2013, García-Sayán
was careful to note that, in addition to concerning themselves with
whether states refer to and apply the Inter-American Court’s decisions,
the judges of this court “do not make personal judgments because we
are respectful of the bounds of each court and understand that these
interactions represent a respectful dialogue with one another.”42

38
See, for example, Víctor Bazán, La Corte Interamericana de Derechos
Humanos y las cortes nacionales: acerca del control de convencionalidad y la
necesidad de un diálogo interjurisdiccional sustentable, lecture presented at the
VIIIth World Congress of the International Association of Constitutional Law,
Mexico, Dec. 6-10 2010, available in Spanish at:
http://www.juridicas.unam.mx/wccl/ponencias/13/215.pdf.
39
Consider judge Ferrer’s final remarks in his concurring opinion in the Inter-
American Court’s Order in Gelman: “The doctrine does not seek to establish which
body has the final word, but to encourage creative, responsible jurisprudential
dialogue, committed to ensuring the effective application of fundamental rights.
Domestic judges now become the first Inter-American judges. It is they who bear the
greatest responsibility in harmonizing national legislation within the Inter-American
parameters” (para 87). See also, García Ramírez, supra note ___, at 129, and Binder,
supra note ___, at 1227.
40
Bazán, supra note ___, at 2.
41
Concurring opinion of Justice Diego García-Sayán in the IACHR’s holding
in Cepeda Vargas v. Colombia (2010), para 30, quoted in Bazán, supra note ___.
42
“’CoIDH respeta sistemas judiciales de los países’, afirma García-Sayán”,
Sinembargo.mx, 28 February 2013, available at http://www.sinembargo.mx/28-02-
2013/544525.
 The Final Word?   17

What García-Sayán failed to take into account is that his

opinions show, not so much an idea of two-way dialogue, but rather a
kind of unilateral/one-dimensional monologue from the Inter-
American Court to the domestic courts. If there were dialogue, then
both parties should have an equal right to participate and the better
argument about the meaning and scope of our rights should ultimately
prevail notwithstanding the authority from whence it originated.43 Yet,
as formulated, however, the Court’s opinions have more weight in this
model of “inter-jurisprudential dialogue,” effectively functioning as
the final word. Moreover, what interests the Court—to the point that it
conducts formal visits to the various states—is that local judges
receive, understand, and internalize international standards and the
interpretations the Court has made of them. This judicial philosophy
starts off on the wrong foot, as it is not clear that this is the Court’s
role, and it ends even worse, with the declared, but difficult to execute,
aim of saddling judges with the obligation to carry out conventionality
control.
Instead of going to this extreme, the Inter-American Court
could—and, I believe, should—make a genuine effort to carry out a
transnational conversation. It is not enough for the Court to say that it
has started a dialogue with local judges, visit them at their offices, and
later decide cases with the goal of having these judges adopt the
Court’s standards and apply them locally. This approach may have
been sustainable in the years in which the Court first began
functioning, given the weak institutional structure of the signatory
countries to the American Convention and the type of cases that it then
faced (primarily severe and systematic violations of human rights
committed by undemocratic regimes). Today the situation has
changed. Even if problems of institutional compliance remain, these
countries are no longer governed by bloodthirsty dictatorships
deploying fear tactics and, for this reason, expanding human rights
agendas and submit them to review by local judicial bodies demands a
different attitude on the part of the Inter-American system.44

43
See SEYLA BENHABIB, DIGNITY IN ADVERSITY. HUMAN RIGHTS IN
TROUBLED TIMES 57 (2011).
44
In recent years, the OAS, mainly at the instance of the Venezuelan and
Ecuadorian governments, as well as other nations, considered proposals to reform the
operations of the Inter-American Commission on Human Rights—under the
euphemism “a process of reflection and strengthening” of the Commission. Without
exception, these reform proposals were based on arguments signaling the new
democratic legitimacy possessed by member states today, and the ways in which the
human rights panorama has changed, on account of which a new mode of operating
is required of both the Inter-American Court and Commission. It was said, for
18 The Final Word?

In the following pages, I present two decisions that illustrate

the idea of transnational dialogue I wish to propose. These cases,
decided by the IACHR in 2012, share several common factors in that
they (i) involved convictions of countries with robust constitutional
regimes (Chile and Costa Rica) and (ii) concerned new contexts of
human rights that differ from the cases of massive, systematic
violations over which the Court has built its jurisprudence. After
reviewing these cases, I will briefly look at the way in which one state
(Mexico) reacted to the Court’s mandates with respect to
conventionality control, highlighting the “institutional” character of
this reaction, that is, made within and according to Mexican
constitutional provisions. I believe that these two decisions can be
taken as the best possible versions of a real inter-American
constitutional conversation in which diverse judicial actors have roles
to play in establishing the law. They may also illustrate to the Court
and other actors the existing limits on the implementation of rights-
protecting agendas that go beyond the adoption of judicial decisions
(whether local or international).

A. Dialogue from the IACtHR: the Atala Riffo and Artavia

Murillo cases

In February 2012, the Inter-American Court condemned Chile

for violating the right to equality as well as the right to protect one’s
family, in the private and family life of Karen Atala and her daughters.
This came after a decision by the Supreme Court of Chile granting
custody of the children to their father on the conjecture that their
mother would have put her personal interest before those of daughters
by living with a same-sex partner in the home in which the girls would
be raised.45 The Chilean Supreme Court declared that their problem
was not with Atala’s sexuality, but with the effect the mother’s

example, that the Commission should no longer have “protective” power, (as, for
example, issuing precautionary measures in individual rights petitions) but rather,
should limit itself to “promotional” activity like conducting in loco visits to member
nations, or educational activities on human rights. On this subject, see Doug Cassel,
Regional Human Rights Systems and State Pushback: The Case of the Inter-
American Human Rights System (2011-2013), 33 HUM. RTS. J. L. (2013) and
CAMILA BARRETTO MAIA ET AL, DESAFÍOS DEL SISTEMA INTERAMERICANO DE
DERECHOS HUMANOS: NUEVOS TIEMPOS, VIEJOS RETOS (2015).
45
Inter-American Court of Human Rights, Atala Riffo and Daughters v. Chile,
Preliminary Objections, Merits, Reparations and Costs, Judgment of February 24,
2012.
 The Final Word?   19

sexuality would have on the children, who, the court argued, would
face social discrimination and would be denied the right to grow up in
a traditional Chilean family, that is, one composed of a father and a
mother. This was the first case in which the IACtHR had to take a
stand on sexual orientation as a category protected by the American
Convention on Human Rights. Not only did the Court have to
determine the scope of the nondiscrimination principle and how it
affected Atala, but also to take a stand on the status of children’s rights
in guardianship cases.
In order to justify the inclusion of sexual orientation and
gender identification as protected categories within the ban on
discrimination examined in the first article of the American
Convention, the IACtHR resorted to various strategies of
interpretation. As on other occasions, the Court cited decisions by the
Human Rights Committee and the Committee on Economic, Social
and Cultural Rights among others (paras. 88-99), relying on the
jurisprudence of its European counterpart, which had dealt with similar
cases for many years.46 Up to that point, there was nothing new in the
way the IACtHR articulated its new doctrine with respect to sexual
orientation as a protected category falling under the phrase “any other
social condition” in Article 1 of the Convention. However, in its
decision, the Court took a step toward creating a genuine type of
transnational dialogue involving two-way communication as opposed
to just a decision handed down by the Court. To justify the adoption
of a new doctrine, the Court noting that the social and political
panorama of the region had changed, of necessity impacting the way in
which we understand the scope of our rights. The Court observes:

social, cultural, and institutional changes are taking place

in the framework of contemporary societies, which are
aimed at being more inclusive of their citizens’ different
lifestyles. This is evident in the social acceptance of
interracial couples, single mothers or fathers and
divorced couples, which at one time were not accepted
by society. In this regard, the law and the State must help
to promote social progress; otherwise there is a grave
risk of legitimizing and consolidating different forms of
discrimination that violate human rights.47

46
For example, the European Court of Human Rights’ case of Salgueiro da
Silva Mouta vs. Portugal (December 21, 1999).
47
Inter-Am. Court Hum Rts., Atala Riffo, para. 120.
20 The Final Word?

The court went on to analyze the particular question it was faced

with—do people of differing sexual orientation deserve the same
threshold of protection as heterosexuals?—and in so doing, referred to
the universal instruments of the United Nations or the procedures
followed by the European system of human rights. The Court directly
cites constitutional developments in the Latin American countries as a
means of rooting its decisions on local interpretations, allowing the
Court to follow, more than lead, the advance of a new jurisprudence on
the question. To illustrate its point, the Court brought up decisions
made by the Constitutional Court of Colombia and the Supreme Court
of Mexico which object to the ways in which homosexuals have been
systematically deprived of their rights. In the words of the Colombian
Court: “discrimination on the basis of sexual orientation [in that
particular case, against a professor] is based on an empirically
groundless prejudice that demonstrates the unjust stigmatization that
has affected the [homosexual] population and which has been invoked
to impose penalties upon or deprive them of rights in detriment to their
ability to participate in the relevant fields of social and economic
life.”48
By way of settling the custody question, the IACtHR invoked a
decision made by the Mexican Supreme Court which maintained that
heterosexual couples do not guarantee, by virtue of their
heterosexuality, that children will be raised in a better environment
than one that can be provided by same-sex couples. The Mexican
Court wrote: “Heterosexuality does not guarantee that an adopted
minor will live in prime conditions for development: this has nothing
to do with heterosexuality or homosexuality. All types of families
have advantages and disadvantages and each family must be analyzed
individually, not from a statistical point of view.”49
Out of these brief, but pointed quotations, the Inter-American
Court of Human Rights was able to construct the fundamental
argument of Atala, that discriminating against a person because of his
or her sexual orientation violates the American Convention and that
children’s best interests do not automatically assume that heterosexual
parents are better qualified to raise them. For both the responsible
country and other countries that recognize the jurisdiction of the Inter-

48
IACtHR, Atala Riffo…, note 114 (quoting the holding of the Constitutional
Court of Colombia, decision C-481, September 9, 1998, par. 25).
49
IACtHR, Atala Riffo…, par. 126 (quoting the holding of the Mexican
Supreme Court of Justice, Action of Unconstitutionality A.I. 2/2010, August 16,
2010, par. 336).
 The Final Word?   21

American Court, the message was that the expansion of the equality
doctrine stemmed, not only from global notions of rights, but also
from interpretations made locally, by the countries comprising the
regional association.
The second case I want to mention is Artavia Murillo and
Others v. Costa Rica, in which, like Atala, the Court pronounced upon
ideas about, and boundaries of human rights that were not addressed at
the time the American Convention was adopted. In Artavia, in which
the Court held against Costa Rica in December 2012, for a total
prohibition on in vitro fertilization in practice since 2000,50 the Court
also rested its decisions, in addition to international regulations and
standards, on the states’ prevailing understandings of the issue.
In 2000, the Constitutional Chamber had declared invalid an
executive order regulating the techniques of assisted fertilization,
reasoning that, on one hand, any regulation that in any way affected
fundamental rights—such as the right to life—had to arise from an act
of Congress, not the executive branch; while on the other hand,
notwithstanding the organ from which the decree had originated, the
technique of in vitro fertilization, claimed the Court, violates the right
to life of the embryo, which must be protected from the moment of
conception in compliance with the Costa Rican Constitution and the
protections enumerated in the American Convention on Human
Rights. Various couples that had spent years undergoing assisted
reproduction treatments unsuccessfully presented a petition to the
Inter-American Human Rights Commission, which then brought the
case before the Inter-American Court. The Court determined that the
absolute prohibition on in vitro fertilization affected several rights
protected by the Convention—namely the right to a private and
familial life, the right to personal integrity, and freedom from
discrimination—a decision based on a set interpretation of the
regulation protecting the right to life.51
According to the Court, the embryo cannot be regarded as a
person for the purpose of conventional protection of the right to life,
which is established “in general, from the moment of conception.”
Accordingly, if the right to life is not applied until the fertilized egg is
implanted into the mother’s uterus, then, the right to life does not

50
Inter-American Court of Human Rights, Artavia Murillo and others v.
Costa Rica (“In Vitro Fertilization"), Preliminary Objections, Merits, Reparations
and Costs, November 28, 2012, Series C No. 257.
51
Article 4.1 of the Convention provides: “Every person has the right to have
his life respected. This right shall be protected by law and, in general, from the
moment of conception. No one shall be arbitrarily deprived of his life.[…]”.
22 The Final Word?

apply to the process of in vitro fertilization. The Inter-American Court

claims to have employed three methods of interpretation in its ruling to
determine the meaning and scope of the written law. First is an
interpretation in light of “the current meaning of the terms;” next, a
“systematic” interpretation (analyzing the norm in the context of
practices of the United Nations system and other regional systems of
human rights), and lastly, an evolutionary interpretation of the
regulations of the treaty, specifically of Article 4.
In the evolutionary interpretation, the Court observes that
“Costa Rica is the only country in the region that prohibits, and
therefore, does not practice in vitro fertilization,”52 and goes on to
briefly review how legislation in other countries has dealt with the
matter. The Court concludes that

state practices are related in the manner in which they

interpret the scope of Article 4 of the Convention, as
none of the States has considered the protection of the
embryo to be of such importance as to prohibit
techniques for assisted reproduction or, in particular, in
vitro fertilization. In this sense, this generalized practice
is linked principally with the gradual and incremental—
not absolute—protection of prenatal life and the
conclusion that the embryo cannot be seen as a person.53

The Court knew that it was speaking on a controversial issue—as

the numerous amicus briefs submitted for its consideration suggest—
and for that reason it is concerned with demonstrating the existence of
something like an inter-American consensus, or “general practice,”
that regards an embryo as different than a person for the purpose of
protecting the right to life. Unlike the Atala case, however, the Court
does not rely upon specific decisions or regulations to sustain its
doctrine. Rather, it concludes from the absence of a constitutional
prohibition on in vitro fertilization in other states that an understanding
of how to interpret Article 4 has been reached. From there, it
concludes that these states have done so by adopting an interpretive
position denying any incompatibility between the conventional
protection of life and the use of assisted reproduction techniques. This
position supports the conclusion reached by the Court, based on its
own interpretative exercise (that is, in light of the “common meaning

52
Inter-American Court, Artavia Murillo…, par. 254.
53
Id., par. 256 (emphasis added).
 The Final Word?   23

of the terms” and the practices of other systems of human rights

protection), namely, that the American Convention is compatible with
the use of assisted reproduction techniques, particularly in vitro
fertilization.
As in Atala, the Court acted as a voice that united and
amplified the constitutional interpretations put forward by various
states regarding the right to life. In so doing, the Court distanced itself
from the maximalist attitude typical of its elaboration of
conventionality control, leaving it better positioned to confront the
criticism it has received for its scarce efforts to respect the “local”
consensus of the countries over which it exercises jurisdiction.54 This
form of interaction, which effectively turns the Court into a resonance
chamber for constitutional interpretation, shows greater deference for
the democratic legitimacy which many states demand, with good
reason, and of which the Inter-American Court and Commission
should take note.55

B. Dialogue from the States: the Radilla Pacheco v. Mexico

case

Having outlined the way in which the Court can truly initiate a
conversation with local jurisdictions, I now suggest how local
jurisdictions can actively participate beyond simply following or
adopting the interpretive criteria set forth by the Inter-American Court.
The case of Radilla Pacheco from Mexico, provides an interesting
example of how a domestic institutional framework can internalize the
obligations derived from a Court holding.
In August 1974, members of the army in the Mexican state of
Guerrero arrested Rosendo Radilla Pacheco, who subsequently
disappeared. His family initiated several judicial proceedings to
determine who was responsible for the forced disappearance, but they
failed to obtain any results. This prompted Padilla’s daughter to take
the case to the Inter-American Commission on Human Rights, in 2001.
The Commission ruled that Mexico had violated a series of rights

54
See Gerald L. Neuman, Import, Export, and Regional Consent in the Inter-
American Court of Human Rights 19 EUR. J. INT’L L. 101 (2008).
55
Consider, for example, what takes place concerning decisions like Gelman
v. Uruguay, in which the Inter-American Court demonstrates that even acts of direct
democracy, like a plebiscite, may lack legal validity against the Court’s
interpretations of the American Convention. On this matter, see, e.g., JUAN PABLO
MAÑALICH, TERROR, PENA Y AMNISTÍA (2009).
24 The Final Word?

detailed in the Convention56 and brought the case before the Inter-
American Court. In November 2009, the Court ruled against Mexico
for, among other things, failing to exercise due diligence in the
investigation of Radilla’s disappearance, and impropriety in allowing
for a military tribunal to hear a criminal case in which the victim was a
civilian. The Court ordered, first, a new punitive investigation,
identifying those responsible for the crime and the appropriate
punishment, and that, in all such cases, the proceedings be carried out
under the rules and regulations of ordinary criminal jurisdiction, not
military jurisdiction.57
The petitioners had solicited the Court to call for the reform of
Article 13 of the Mexican Constitution, which gives constitutional
support to military criminal tribunals, thus lending itself to
interpretations that conflict with the American Convention.58 The
Court, however, dismissed the request, observing that the existence of
a domestic law did not completely guarantee that its application of
necessity respect fundamental rights established at the international
level, for which reason the way in which the judiciary interpreted the
reach of military justice was important. What was unacceptable, the
Court determined, was that in cases such as these, those charged with a
crime against humanity (as is the enforced disappearance of people)
were judged in military courts. In its decision, the Court returned to
the doctrine of conventionality control (par. 339), concluding that
“constitutional and legislative determinations regarding the criteria of
substantive and personal jurisdiction of military tribunals in Mexico
must adhere to the principles established in the jurisprudence of this
Court” (par. 340), a message clearly directed to the judiciary.59

56
The Inter-American Commission found that México had violated the right
to recognition of the juridical personality of the individual, the right to life, the right
to personal integrity, the right to personal liberty, certain other juridical guarantees
and the right to the legal protection of certain relative of Rosendo Radilla.
57
Inter-American Court of Human Rights, Radilla Pacheco v. Mexico,
Preliminary Objections, Merits, Reparations and Costs, November 23, 2009, Series C
No. 209, par. 331.
58
The relevant provisions of Article 13 of the Mexican Constitution provide:
“Military jurisdiction shall be recognized for the trial of crimes against and violation
of military discipline, but the military tribunals shall in no case have jurisdiction over
persons who do not belong to the army. Whenever a civilian is implicated in a
military crime or violation, the respective civil authority shall deal with the case.”
59
Something similar happened in Atala. Petitioners requested a modification
of the provision governing parental custody in cases where the parents lived
separately (Art. 225 of the Civil Code). The Court observed that the problem lay not
in the provision itself, but in the manner in which it had been interpreted. As a result,
 The Final Word?   25

The Mexican judiciary’s reaction to this decision is even more

interesting to consider. Following discussions about a possible
constitutional reform—finally adopted in June 201160—to give utmost
importance to human rights within the constitutional structure, the
Supreme Court of Justice convened itself for a deliberation over the
ways in which it and the judicial branch in general, could address the
definitive points of the Inter-American Court’s decision in the Radilla
Pacheco case, specifically, the value that would be placed on the
IACtHR’s holdings by judges at the domestic level and the ways in
which they should exercise the conventionality control that the Court
had reasserted in its decision.61 The Supreme Court dedicated several
days of this plenary session to reaching an agreement which held as its
core aims that “a) judges should conduct conventionality control ex
officio in a model of decentralized constitutional interpretation; b) the
application of military justice must be restricted to certain concrete
cases, and that c) the judiciary of the Mexican Federation shall
implement administrative measures proceeding from the holding
reached by the Inter-American Court in the Radilla Pacheco case.”62
The Court’s reasoning on how courts should carry out their
duty to exercise conventionality control is remarkable, observing that
the IACtHR decision together with the June 2011 constitutional reform
had altered the conventional control regime that had existed until then,
yielding one that, the Court noted, did not arise from any particular
constitutional rule but rather was the product of “diverse
jurisprudential constructions.”63 Specifically, the Mexican Court
believed judges to be unable to make general declarations about the
validity of norms nor, even further, to expel them from the legal

alongside a grant of custody (similar to Radilla), the Court restated its thesis on
conventionality control, Atala Riffo…, para. 282.
60
Constitutional reform published in the Official Gazette of the Federation on
June 10, 2011, which modifies Art. 1 of the Constitution (emphasizing the value and
obligatory character of human rights as rules of conduct with which public officials
and institutions must comply).
61
Supreme Court of Justice of Mexico, Resolution of the Plenary Tribunal on
various proceedings 912/2010 and Individual Opinions of Justices Margarita Beatriz
Luna Ramos, Sergio Salvador Aguirre Anguiano and Luis María Aguilar Morales; as
well Individual and Concurring Opinions of Justices Arturo Zaldívar Lelo de Larrea
and Jorge Mario Pardo Rebolledo, published in the Official Gazette of October 4,
2011, Second Section, at 1-65.
62
Id., par. 22.
63
Id., par. 25.
26 The Final Word?

system. Judges are, however, obligated to refuse to apply them in

order to give preference to constitutional text and international treaties.
In doing so, the Court observes, judges should follow a three-step test
aimed at allowing for judicial interpretation “consistent” with treaties.
Only where these alternatives are impossible to carry out should the
law then should be nullified.64 Lastly, the Court examined the legal
foundations for the types of constitutionality control existing in
Mexico and how these should be employed to achieve the obligation
of exercising conventionality control and the mandate established in
the (new) Article 1 of the Constitution.65
Of course, there was some disagreement within the Court, and
other officials believed that the IACtHR had overstepped its authority
in ordering local judges to perform conventionality control.66 Still, the
Mexican Supreme Court’s effort to delimit the process of complying
with the mandate imposed by the IACtHR, which lays out a series of
obligations, some of which are vague or difficult to implement, is
notable. In this sense, the Court actively participated in the
transnational conversation, announcing that local bodies have a
necessarily role to play in carrying out the orders of the Inter-
American Court. The Court attempts to enlighten local and federal
judges with regard to their powers in the wake of Radilla Pacheco, in
the bargain providing for better implementation of the decisions of the

64
Id., par. 33 (invalidating a legal rule “shall neither affect nor disrupt the
logic of the principle of separation of powers and federalism, but instead strengthens
the role of the judiciary as the last resort to guarantee the primacy and effective
application of human rights established in the Constitution and in the international
treaties to which the Mexican state is a party.”).
65
The Tribunal also held that inferior tribunals must adhere to the
interpretation arising out of the IACtHR’s judgment with respect to the
incompatibility of Article 57, Section II, of the Code of Military Justice, which
permits for crimes or violations committed by military personnel against civilians,
even those constituting crimes against humanity, to be tried in special military
courts. For that reason, the Tribunal held that from now on, “military jurisdiction
shall under no circumstances be applied in situations where the human rights of
civilians are violated” (par. 44).
66
See, for example, the opinion of Justice Luna Ramos (“Under the rule of
law, all public authorities have specific responsibilities, and in a federal system such
as ours, governed by a [concentrated system of] constitutional control, it is not viable
to allow ordinary judges to invalidate laws because they consider them contrary to
the Constitution,” p. 36). Moreover, the President of the Court argued that the
plenary tribunal lacked competence to adopt such an accord, not withstanding the
background of the issue. See the individual opinion of Justice Sergio Salvador
Aguirre Anguiano, id.
 The Final Word?   27

regional tribunal, an issue which, as is well-known, is a frequent object

of concern for specialists.67 By deliberating on the obligations
emerging from the IACtHR’s decision, it is the state itself that takes
responsibility for implementing standards of international law.
In this way, the Court here participated in the two-way legal
dialogue from the perspective of the state, as opposed to the way
described earlier and typically favored by the IACtHR, that is, as the
initiator of a monologue that comes down from above. In this two-
way model, the state truly has something to say: nothing less than
determining — it remains to be seen whether correctly or incorrectly –
how local courts should participate in a conversation about basic rights
that transcends national borders. It is possible to structure a model
along these lines in which the IACtHR acts, on the one hand, as an
amplifier for the best understandings of rights in the region, not only
leading but following processes of constitutional decision-making
while on the other hand leaving some room for deference to the states
so that they, and not the IACtHR, are the ones that resolve the ways in
which international human rights law is applied.
Perhaps one possible objection to this conception of the
creation of inter-American human rights law could be found in the
selection of which cases and decisions are chosen by the IACtHR as
the basis for constructing doctrine (we could call the ‘cherry-picking’
problem). I do not have space to take up the problem here but I do
find it important to frame the issue in a way as to favor mechanisms
consistent with a model aiming for full application of international law
without disrespecting the spaces for democratic deliberation that
rightfully belongs to states.

67
One of the most studied topics in international human rights law is the
implementation of decisions emanating from regional courts. See, among many
others, Alexandra Huneeus, Courts Resisting Courts: Lessons from the Inter-
American Court’s Struggle to Enforce Human Rights, 44 CORNELL INT’L L.J. 101
(2010); Ariel Dulitzky, The Inter-American Human Rights System Fifty Years Later:
Time For Changes, 2011 QUEBEC J. INT’L L. 127, 138 (2011) (“Almost 60% of the
[Inter-American Commission on Human Rights’] recommendations … are never
carried out. Just under 40% are partially complied with...”); Fernando Basch et al.,
The Effectiveness of the Inter-American System of Human Rights Protection: A
Quantitative Approach to its Functioning and Compliance With its Decisions, 12
SUR—INT’L. J. HUM. RTS. 9 (2010). See also MAXIMIZING JUSTICE, MINIMIZING
DELAY: STREAMLINING PROCEDURES OF THE INTER-AMERICAN COMMISSION ON
HUMAN RIGHTS, report by the Human Rights Clinic of the University of Texas
School of Law (2011) available at
http://www.utexas.edu/law/clinics/humanrights/work/Maximizing_Justice_Minimizi
ng_Delay_at_the_IACHR.pdf.
28 The Final Word?

IV. Conclusion

After several decades of operation, the Inter-American system of

human rights must address significant constitutional changes that have
occurred in the countries that sustain it. In some cases, pressure to
refashion the way that the organs of the system relate to the states has
taken on a negative aspect, as is shown by the so-called “strengthening
process” of the Inter-American Human Rights Commission, which
went from 2011 to 2013. What is beyond any doubt is that the
juridical and political circumstances in which the Court and the
Commission currently operate are more complex than those that
existed twenty or twenty-five years ago. For this reason, careful
examination is needed of the way these organs understand their work
and, in particular, the manner by which they are linked to the
constitutional courts of the OAS.
In a context where states demand greater space for
constitutional self-determination, the Inter-American Court has
adopted a maximalist attitude,68 one that might be found in a
supranational tribunal, through its use of the doctrine of
conventionality control. I have explained what this comprises and the
primary critiques it has received: fundamentally, that the Court
initially decided without paying attention to the particularities of
states’ legal systems, that local judges have certain obligations to set
aside laws (or even national constitutions themselves) when these
contradict the American Convention on Human Rights or the
IACtHR’s interpretation of it, generating situations that may be
contradictory for domestic judges. This situation, often applauded by
human rights activists and theorists, creates serious technical
problems, for which reason requires that attempts be made to
reconstruct the doctrine such that, on one side, it gives life to the
international standards to which states, as sovereign actors, have
subscribed, while at the same time granting deference to those same
States.
To this end, I have presented a form of transnational dialogue
between the IACHR and local courts that, unlike the notion of
dialogue that the Court itself purports to embrace, posits genuine
conversation between (at least) two parties. In this conversation, the
Inter-American Court not only directs the States in their interpretation
of norms of basic rights, but rather, it also follows the guidelines that

68
See Jorge Contesse, Contestation and Deference in the Inter-American
Human Rights System 79(2) LAW & CONTEMP. PROBS. ___ (2016, forthcoming).
 The Final Word?   29

the courts of these (or other) states have articulated regarding the
matters that are directed to regional organs for consideration. I
reviewed two cases decided in 2012 (Atala Riffo and Daughters v.
Chile and Artavia Murillo and Others v. Costa Rica) in which this
approach to the interpretation of rights can be found, albeit timidly. In
addition, I presented as a corollary to this conversation between two
parties a description of the way the Mexican Supreme Court
established that it was necessary to set up guidelines for the courts of
the country to apply the guidelines outlined by the IACHR in its
decision in Radilla Pacheco v. México. Instead of butting in on
constitutional decision-making at the state level, the IACtHR would be
better served by more cautiously examining statewide distributions of
court authority and perhaps, from that perspective, inviting states to
engage in the conversation that it wishes to hold on the scope and
content of our rights, thus providing a sort of amplifier for doctrines
that, in arising from the states that sustain the Inter-American system,
can best protect those rights.