Critic analysis of the Coventionality Control

Abstract

The initial hypothesis of this article is that the doctrine of "Conventionality Control" was built on an incorrect theoretical basis. That doctrine fails to recognize the subsidiary role of the inter-American bodies in relation to the states that are part of the American Convention on Human Rights.

On the one hand, I will try to demonstrate that the Inter-American Court of Human Rights has established itself as a supranational court, in the same direction as the courts that are part of the regional integration system. At this point I will intend to establish an important distinction: (i) regional integration generates supranational organizations, by virtue of the sovereignty that the signatory states delegate to them. These bodies are above the signatory states and their rulings share the same supremacy. (ii) Conventional law, on the other hand, originates bodies provided with competences strictly derived from the consent of the states that are part of the conventions. These organisms exist by will and with the attributions strictly granted in the pact that created them. There is no delegation of sovereignty over them, so they are not supranational organizations. That is the reason why they can only exercise their powers strictly as they were agreed.

I will argue that despite this theoretical framework, the Inter-American Court of Human Rights has perceived itself as a supranational body that rules cases without any constitutive limitations. In this respect, it is possible to analyze how their competences have been progressively increased in the framework of the development of the "conventionality control" doctrine, completely ignoring the original meaning of the American Convention on Human Rights.

Finally, I will propose a possible explanation of this phenomenon. In that sense, I will postulate that the Court has built the heart of the doctrine in a first stage of "easy cases". In these situations, in the face of the obvious violation of conventional norms by States - in general, authoritarian, under military dictatorships or in situations of weak transition democracies - there was no doubt about the solution to be established.

At this point, I will discuss a methodological issue derived from what was stated above: the inadequate extrapolation of a doctrine, developed exclusively to solve "easy cases", to address "difficult cases".  after the 90's, with consolidated democracies, the system has to deal with problematic and complex issues (v.g. bioethical problems). At the same time, principles and values have been broken as norms that integrate conventions and the constitutional systems. These two edges converge in the certainty that legal responses are complex and do not allow unique answers. In this new scenario, the expansionist doctrine of conventionality control begins to present serious difficulties of justification.

The conclusion will be is that the solution to this problem of legitimacy embodied in the current inter-American system can be resolved by returning to the letter of the pact, determining precisely how far do the powers of the Inter-American Court go and what are the interpretive excesses that it have incurred.