Antonio Moreira Maués - Judicial Dialogue Between National Courts and The Inter-American Court of Human Rights

Human Rights Law Review, 2021, 21, 108–131
doi: 10.1093/hrlr/ngaa047
Advance Access Publication Date: 8 January 2021
Article
Judicial Dialogue Between National
Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Courts and the Inter-American Court of
Human Rights: A Comparative Study of
Argentina, Brazil, Colombia and Mexico
Antonio Moreira Maués,∗ Breno Baía Magalhães,†
Paulo André Nassar‡ and Rafaela Sena¶
ABSTRACT
This article discusses the dialogue between the Supreme Courts of Argentina, Brazil and
Mexico and the Constitutional Court of Colombia with the Inter-American Court of
Human Rights. It assesses the impact of the following variables on this judicial dialogue:
the hierarchy and direct effect of human rights treaties, consistent interpretation with
international law and judicial postures related to international law. The article develops an
analysis of each court’s leading cases and discusses whether and how these variables have
contributed to dialogue and whether it is possible to identify common patterns in these
four countries’ relations with the Inter-American Court of Human Rights (IACtHR). We
argue that the constitutional status of human rights treaties, the use of the American Con-
vention on Human Rights to control the conventionality of domestic law, the application
of the principle of consistent interpretation and a posture of convergence or engagement
with international law lead domestic courts to acknowledge an obligation to follow or, at
least, consider IACtHR jurisprudence.
KEY WORDS: judicial dialogue, Inter-American Court of Human Rights, Supreme Court
of Argentina, Supreme Court of Brazil, Constitutional Court of Colombia, Supreme
Court of Mexico
1. INTRODUCTION
A different type of communication between international and domestic courts has
become a widespread phenomenon since the 1990s following the expansion of supra-
national organizations, such as the European Union, and regional systems for the
* Professor, Institute of Legal Sciences, Federal University of Pará, Brazil (amaues@ufpa.br).

† Assistant Professor, Institute of Legal Sciences, Federal University of Pará, Brazil (brenobaia@ufpa.br).
‡ Lecturer, Institute of Legal Sciences, Federal University of Pará, Brazil (pauloandre@ufpa.br).
¶ PhD Candidate, Institute of Legal Sciences, Federal University of Pará, Brazil (rafaelatneves@gmail.com).
© The Author(s) [2021]. Published by Oxford University Press. All rights reserved.
For Permissions, please email: journals.permissions@oup.com • 108
Judicial Dialogue Between National Courts • 109
protection of human rights, such as the Inter-American and European systems. Under
these frameworks, national and international judges share the duty to apply the law, and
they must cooperate to fulfil their common mission.
This kind of judicial communication sometimes takes the form of a ‘direct dialogue’

that one court initiates and another responds to; this dialogue is based on ‘the awareness
on the part of both participants of whom they are talking to and a corresponding
willingness to take account of the response’.1 Human rights law offers a fertile field
for this kind of dialogue between courts.2 In many cases, an international judge must
scrutinise a domestic court’s reasoning to decide whether the state has violated a
treaty obligation, and this scrutiny provides guidance to the national judges on how
international rules should be interpreted. On the other hand, domestic judges must have
knowledge of human rights courts’ jurisprudence to prevent states from breaching their
international obligations, and they can also contribute to the development of treaties’
standards when applying international law.
The use of dialogue to improve the implementation of international law has been
reinforced in the Inter-American System for the Protection of Human Rights by the
‘conventionality control’ doctrine of the Inter-American Court of Human Rights (IAC-
tHR), which has been developed since the Almonacid Arellano case.3 In line with this
doctrine, all state parties to the American Convention on Human Rights4 (ACHR)
have the duty to interpret—or even disregard—any national legal rules in accordance
with the Inter-American corpus juris, which includes IACtHR jurisprudence.5 From a
domestic judge’s point of view, this doctrine demands a dialogue with the IACtHR,
which is initiated by this court’s decisions about how to protect human rights and
must be followed by national courts in their responses regarding how they apply the
IACtHR’s reasoning to improve human rights protection at the state level.6
In this article, we intend to discuss this second moment of judicial dialogue between
the IACtHR and national courts. How have national courts reacted to IACtHR jurispru-
dence? Do domestic courts actually dialogue with the IACtHR? If so, what patterns
does this dialogue follow? To answer these questions, we develop a comparative study
of the Supreme Courts of Argentina (Corte Suprema de Justicia de la Nación Argentina—
CSJN), Brazil (Supremo Tribunal Federal—STF) and Mexico (Suprema Corte de Justicia
de la Nación—SCJN) and the Constitutional Court of Colombia (Corte Constitutional
1 Slaughter, ‘A typology of transjudicial communication’ (1994) 29 University of Richmond Law Review 99 at

112–3.
2 Burgorgue-Larsen, El Diálogo Judicial: Máximo Desafío de los Tempos Jurídicos Modernos (2013).
3 Case of Almonacid Arellano et al. v Chile IACtHR Series C 154 (2006).
4 1969, OASTS No 36.
5 Ferrer Mac-Gregor, ‘Interpretación conforme y control difuso de convencionalidad: el nuevo paradigma para
el juez mexicano’ in Ferrer Mac-Gregor (ed) El Control Difuso de Convencionalidad: Diálogo entre la Corte
Interamericana de Derechos Humanos y los Jueces Nacionales (2012); Maués and Magalhães (eds) O Controle
de Convencionalidade na América Latina: Experiências Comparadas (2018).
6 For some authors, conventionality control doctrine should be classified as a monological rather than a
dialogical attitude, insofar as the IACtHR understands that domestic judges have a duty to follow its
jurisprudence. Despite this controversy, our focus here is on domestic courts’ responses to the IACtHR,
regardless of its original intent. For a summary of this debate, see Contesse, ‘The Final Word? Constitutional
dialogue and the Inter-American Court of Human Rights’ (2017) 15 International Journal of Constitutional
Law 414; Carozza and González, ‘The Final Word? Constitutional dialogue and the Inter-American Court
of Human Rights: A reply to Jorge Contesse’ (2017) 15 International Journal of Constitutional Law 436.
110 • Judicial Dialogue Between National Courts
de Colombia—CCC). We select these four cases because they represent the most impor-
tant countries of the region according to economic and population measures; thus, they
are in a foremost position to offer insight into judicial dialogue in Latin America. In
addition, all of these countries present a relevant number of cases in Inter-American

jurisprudence: as of 2018, the IACtHR had decided 23 cases against Colombia, 17 cases
against Argentina, 11 cases against Mexico and nine cases against Brazil.
The frequent use of the ‘dialogue metaphor’ has been criticised as an overestimation
of the semantical possibilities stemming from the word ‘dialogue’ when applied to
constitutional design. Kavanagh 7 argues against the use of the dialogue metaphor
in constitutional theory due to the lack of clarity and consensus on its prescriptions
regarding the role that courts and legislatures should play under a bill of rights. In her
view, the dialogue metaphor led to an ‘over-simplification of the complex institutional
roles of courts and parliaments’, and because ‘it was used as a substitute for argument
rather than an illustration of those arguments’, ‘it began to dominate our understanding
of the relationship between the courts and Parliament’. In other words, the obscure
metaphor became ‘a source of guidance about how the relevant institutional actors
should or should not carry out their constitutional roles’. Her arguments are powerful,
and we should address our choice to continue using the dialogue metaphor. However,
we must distinguish between different dialogical approaches in order to circumscribe
how we intend to use this category in this work. Thus, to avoid further confusion
with the different theories and arguments for constitutional dialogue, we group the
theoretical approaches into three main models.
Models of Commonwealth democracies encompass, for instance, theories devel-
oped mainly in Canada, New Zealand and the UK to discuss the justifications, legit-
imacy and operationalization of judicial oversight of the compatibility of statutes in
parliamentary countries where the insertion of a charter of rights generated proce-
dural solutions unknown to models of strong judicial review.8 These models are the
focus of Kavanagh’s critiques.9 On the other hand, models of shared or coordinated
constitutional interpretation embrace theories arguing that the task of interpreting a
constitution must be shared by all branches in equal measure. The constant discussion
(ongoing dialogue) about the constitutional decisions of the court among the popula-
tion and other branches suggests that the judiciary branch does not utter the final word
in constitutional matters.10
Finally, models of dialogue between judges consist of theories that attempt to explain
the interactions that occur between judges of different constitutional courts, between
national and international judges (including regional human rights courts) and between
judges of different international tribunals. The interactions range from formal meetings
to the direct citation and development of the precedent or legal material of another
international or foreign court or legal order.
7 Kavanagh, ‘The lure and limits of dialogue’ (2016) 66 University of Toronto Law Journal 93 at 96.
8 Hogg, Bushell Thornton and Wright, ‘Charter Dialogue Revisited—Or Much Ado About Metaphors’
(2007) 45 Osgoode Hall Law Journal 01; Hiebert, Charter Conflicts: What is the Parliament Role? (2002).
9 In her own words: ‘Dialogue is a metaphor used to describe the interaction between courts and legislatures
under bills of rights’. Kavanaugh, supra n 7 at 86.
10 See Fisher, Constitutional Dialogues: Interpretation as Political Process (1988); Pickerill, Constitutional Delib-
eration in Congress: The Impact of Judicial Review in a Separated System (2004).
There are major differences among those models of dialogue, and we focus on the
third model, the one established between judges of two different forums: justices sitting
in constitutional courts and judges sitting in San José. Conventionality control suggests
that the content of this dialogue is not limited to cases in which a state has breached an

international obligation and has a duty to comply with an IACtHR judgment (Article
68.1 ACHR). Judicial dialogue between domestic courts and the IACtHR should be
based on the ACHR and on IACtHR jurisprudence, regardless of whether the case
involves the state of the domestic court.
Based on a most-similar-cases research design,11 the article discusses the impact
of the following variables on this judicial dialogue: the hierarchy and direct effect
of human rights treaties, consistent interpretation with international law and judicial
postures related to international law. We tested these independent variables in the four
cases to identify how their occurrence relates to judicial dialogue between domestic
courts and the IACtHR. The analysis of each courts’ leading cases demonstrates that in
Argentina, Colombia and México a combination of the constitutional status of human
rights treaties, the use of the ACHR to control the conventionality of domestic law, the
application of the principle of consistent interpretation and a posture of convergence or
engagement with international law lead domestic courts to acknowledge an obligation
to follow or, at least, to consider IACtHR jurisprudence. On the other hand, the absence
of these conditions in Brazil helps explain the lack of judicial dialogue with the IACtHR.
2. GRAMMAR OF JUDICIAL DIALOGUE

A. Hierarchy and Direct Effect of International Treaties
The incorporation of international treaties in domestic law, whether in monistic or
dualistic systems, is a fundamental starting point for enabling judicial dialogue. Fur-
thermore, the way a treaty is incorporated influences its hierarchy in the domestic legal
system.12 The legal status of a treaty within domestic law can range from a constitutional
hierarchy to a lower intermediate status (supra-legal) and to an even lower level, where
the treaty is considered a mere statute. The status of a treaty may affect the styles of
judicial review of domestic legal acts that are not in conformity with the international
source. Assigning constitutional status to a treaty may facilitate, e.g. the review of an
internal statute through a hierarchical submission of the latter; on the other hand, the
assignment of a statute-like position to the treaty may require other forms of settlement
of a future normative conflict, such as temporal or specialty criteria.
In addition, giving treaties a direct effect allows courts to apply international law
without being dependent on the intervention of political branches, notably the legisla-
tive branch.13 On the other hand, the indirect effect of treaty provisions may restrict or
11 Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (2014) at 245–53.
12 In this paper, we refer to the debate between monists and dualists taking into account the descriptive aspect
of the dichotomy, that is, the aspect related to the political choices a constitution establishes regarding the
procedures for incorporating international treaties at the domestic level. Therefore, in a monist state, treaties
are directly applied, and in a dualist legal order, ratified treaties must be transformed into domestic law to be
applicable. For this reason, we do not discuss the dichotomy on the theoretical level; we are not concerned
with debating the existence, or non-existence, of a single legal order in the relationship between international
law and domestic law.
13 Nollkaemper, National Courts and the International Rule of Law (2011) at 117.
limit the judiciary branch from readily applying them in the absence of domestic legal
acts to implement the international standard. With an indirect effect, international law is
applicable only through national law. In this article, we use the number of references to
the ACHR made by national courts as a proxy to identify the direct effect of the ACHR

in each legal system.
B. Consistent Interpretation
States have used the principle of ‘consistent interpretation’ as a technique to help them
fulfil their international obligations. By this principle, national law must be interpreted
in conformity with international law, which means that authorities must apply domestic
rules in a way that makes the rules compatible with international rules. This principle
has been part of the European Court of Justice (ECJ) case law since the Marleasing Case,
when the ECJ required national courts of Member States ‘to interpret its national law
in the light of the wording and the purpose’14 of European Union law. Some national
constitutions, such as Spain’s (Article 10.2) and South Africa’s (Article 233), also
impose a duty of consistent interpretation. However, even when there is no such explicit
mandate, state authorities may use this technique to avoid a breach of international law
caused by an incompatible application of a domestic rule.
From judges’ point of view, consistent interpretation is a useful tool to ensure state
compliance with international human rights law, as it enables them to protect human
rights while enforcing national law. In doing so, courts should prefer an interpretation
that is compatible with international human rights standards, using their own domestic
legal provisions to guarantee that the state complies with those standards.15
Judicial Postures
C.
Judicial dialogue also relies on domestic courts’ postures regarding international law.
The way judges understand the relationship between national and international sources
and the way they use the latter play an important role in enhancing their dialogue with
international courts. According to Jackson,16 these attitudes can be organised along a
continuum comprising three parts:
a) resistance: under this posture, ‘only those legal norms that have been adopted in
accordance with the controlling procedural rules within the particular national
legal community (...) should be considered in interpreting law’.17 According to
this attitude, international law is irrelevant as a source of constitutional meaning,
as national constitutions ‘express the commitments, constraints and uniqueness
of a particular people’.18 Different approaches to constitutional interpretation,
such as originalism, contractarianism and popular sovereignty, also support a
posture of resistance, which can manifest itself as silent resistance, when there is
14 C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1991] Case C-106/89 [1991] 1

ECR 4135, at para 8.
15 Nollkaemper, supra n 13 at 140–1.
16 Jackson, Constitutional Engagement in a Transnational Era (2010).
17 Ibid. at 08.
18 Ibid. at 20.
no awareness of international sources, or active resistance, when these sources

are rejected by national courts;
b) convergence: this posture is the opposite of resistance, as convergent courts
‘view domestic constitutional law as a site for the implementation of inter-

national legal norms or, alternatively, as a participant in a decentralised but
normatively progressive process of transnational norm convergence’.19 Con-
vergence attitudes are mainly influenced by the development of international
human rights law, insofar as national constitutions incorporate international
instruments into domestic rights provisions or require consistent interpretation
of these provisions and
c) engagement: this last posture stands on the middle ground between the two
ends of the spectrum and focuses on ‘heightening judges’ capacities for more
informed and impartial deliberation about the content of their own constitu-
tional norms’.20 This attitude is founded on the idea that international law is
not only binding law but also a ‘reflective tool’ that helps judges improve the
interpretation of domestic law. We can distinguish two modes of engagement:
deliberative, when there is no general obligation to consider international law
but doing so is permissible, and relational, when there is a relationship to
international law that motivates its consideration or even a ‘felt, or express,
obligation to consider’21 international sources. In both cases, domestic courts
may agree or disagree with international law.
3. COMPARATIVE STUDY
A.Hierarchy and Direct Effect of Human Rights Treaties
In the four countries that we study, the approval of a new constitution or important
constitutional reforms changed the status of human rights treaties in the domestic legal
system.
(i) Brazil
In Brazil, after a long period of authoritarian rule (1964–85), the Constitution of
1988 established a new democratic regime. This Constitution provides for an extensive
bill of rights—which includes civil, political, economic and social rights—and an
independent judiciary vested with the power of judicial review. Although the Brazilian
Constitution does not contain any explicit provision on international treaties’ hierarchy,
its Article 5, paragraph 2, states the following: ‘The rights and guarantees expressed
in this Constitution do not exclude others deriving from the regime and from the
principles adopted by it, or from the international treaties in which the Federative
Republic of Brazil is a party.’
This was the first time that such a reference to international treaties appeared
in Brazilian constitutional law, and it soon created controversy about the rank of
19 Ibid. at 08.
20 Ibid. at 71.
21 Ibid. at 72.
human rights treaties. For many scholars, this provision gave constitutional status to
human rights treaties, as they were incorporated as constitutional rights in Brazil.22
Nonetheless, the Supreme Court (STF) refused to change a decade-old precedent and
maintained its interpretation that all international treaties rank equally with ordinary

laws. Afterwards, Constitutional Amendment (CA) n. 45, passed in 2004, added a
specific provision on human rights treaties. According to the new Article 5, paragraph
3, these treaties could be incorporated as ‘equivalent’ to CAs if they were approved by
the same majority required to change the Constitution, that is, three-fifths of the votes
in two different voting sessions in each chamber of the Congress. This rule was critical
to the STF’s revision of human rights treaties’ status in the Brazilian legal system. In
December 2008, when ruling on a number of cases involving the civil imprisonment
of unfaithful trustees, the STF modified its position and adopted the thesis of supra-
legality of human rights treaties, according to which these treaties rank above ordinary
laws and below the Constitution. These cases appeared soon after the ratification of
the ACHR. According to Article 7.7 of this treaty, imprisonment for indebtedness is
permissible only for non-payment of alimony, but the Brazilian Constitution also allows
civil imprisonment of unfaithful trustees (Article 5, item LXVII).
Before CA n. 45, the STF decided that this constitutional rule had not been affected
by Brazil’s ratification of the ACHR in 1992. Thus, the court maintained the validity of
the infra-constitutional norms that regulated this type of imprisonment and reinforced
the legal status of human rights treaties. Since the judgment of Recurso Extraordinário
466.343,23 the STF has considered civil imprisonment of unfaithful trustees ‘unlawful’,
and it enacted a binding precedent on the matter. The grounds for this ruling are
summarised by the court as an interpretation of Article 5, item LXVII, paragraphs 1,
2 and 3, of the Constitution ‘in the light’ of Article 7.7 of the ACHR.
The STF’s judges recognised that the new Article 5, paragraph 3, emphasised the
special nature of human rights treaties and placed them in a privileged position in the
Brazilian legal system, superseding its jurisprudence on their legal status. If human
rights treaties could achieve constitutional status, it was incoherent to maintain the legal
status of important treaties already ratified by Brazil, such as the International Covenant
on Civil and Political Rights,24 the International Covenant on Economic, Social, and
Cultural Rights25 and the same ACHR. Nonetheless, the majority of the STF did not
agree to give constitutional status to these treaties ratified before CA n. 45, based on
the following arguments: a) the supremacy of the Constitution over all international
treaties; b) the risk that a broad concept of human rights limits the constitutional
review of international treaties and c) Article 5, paragraph 3, implicitly recognises that
the treaties ratified by Brazil before CA n. 45 should not be considered constitutional
norms.
The doctrine of supra-legality could reinforce the direct effect of human rights
treaties, as these treaties could now override the effectiveness of any infra-constitutional
law conflicting with them. Notwithstanding, the STF has not followed this path. From
22 Piovesan, Direitos Humanos e o Direito Constitucional Internacional, 2nd edn (1997).

23 Diário da Justiça Eletrônico 104/2009 at 37.
24 1966, 999 UNTS 171.
25 1966, 993 UNTS 3.
2009 to 2015, only 103 STF rulings made references to the ACHR, despite the large
number of rulings (approximately one hundred thousand per year). Even these refer-
ences do not imply that the ACHR is used to support judges’ reasoning. Very often,
ACHR provisions are not critical for a decision, and they reinforce only some of
the arguments exposed in a ruling.26 In other situations, the ACHR appears together

with other international treaties to which Brazil is not a party, such as the European
Convention of Human Rights.27 Consequently, in this period, we cannot find any
decision where the ACHR was used to override the effectiveness of a statute.
(ii) Colombia
In Colombia, after many years of armed conflict, peace negotiations and a strong
popular movement for democracy led to the election of a Constituent Assembly to
reorganise the state and strengthen the rule of law. The resulting Constitution of 1991
recognised many civil, political, economic and social rights, and a Constitution Court
was created to protect these rights.28 This constitution also specified a new role for
international law, especially for international human rights law, in the domestic legal
system.29
The key provisions on this issue are Article 93-1, which provides that ‘[i]nternational
treaties and agreements ratified by Congress, that recognise human rights and pro-
hibit their limitation in states of emergency, prevail in the domestic legal system’, and
Article 93-2, which states that ‘[t]he rights and duties mentioned in this Charter shall
be interpreted in conformity with international treaties on human rights ratified by
Colombia’.
Since its early decisions, the CCC construed Article 93-1 to give direct effect to main
international human rights treaties. For example, in sentence C-556/1992,30 the court
used Article 27 of the ACHR to assess which rights President Gaviria could suspend
by decree under a state of emergency. In sentence T-409/1992,31 the CCC considered
that under Article 93-1, international human rights treaties prevail in the domestic legal
system, and the First Geneva Convention of 1949 trumps military orders that do not
comply with humanitarian law.
In 1995, the court advanced the interpretation of the legal meaning of the primacy of
international human rights treaties in the domestic legal order. In sentence C-225/95,32
the CCC established the constitutional block doctrine, conferring constitutional status
on international treaties ratified by Colombia that recognise human rights and cannot
be limited in states of emergency. According to this ruling, the constitutional block
comprises norms and principles that are used as standards for judicial review, although
26 e.g. Arguição de Descumprimento de Preceito Fundamental 347, Diário da Justiça Eletrônico 31/2016 at 61;
Arguição de Descumprimento de Preceito Fundamental 378, Diário da Justiça Eletrônico 43/2016 at 59.
27 e.g. Ação Direta de Inconstitucionalidade 4.815, Diário da Justiça Eletrônico 18/2016 at 2; Habeas Corpus
97.665, Diário da Justiça Eletrônico 119/2011 at 32.
28 Hidrón, Panorama del Derecho Constitucional Colombiano (2013).
29 See Reina Garcia, ‘Las cláusulas de apertura o reenvío hacia fuentes externas previstas en la Constitución
colombiana, como criterio para delimitar el contenido del bloque de constitucionalidad’ (2012) 29 Revista
Derecho del Estado 175; Acosta Alvarado, Diálogo Judicial y Constitucionalismo Multinivel (2015).
30 Corte Constitucional de Colombia, Sentencia C-556, de 15 de octubre de 1992.
31 Corte Constitucional de Colombia, Sentencia T-409, de 8 de junio de 1992.
32 Corte Constitucional de Colombia, Sentencia C-225, de 18 de mayo de 1995.
these norms are not mentioned in the constitutional text. Despite their absence from
the text, these are norms of constitutional value because of an explicit mandate of the
constitution itself.
In the following years, the CCC made a distinction between (a) constitutional

block in a strict sense, comprising the principles and norms of constitutional value
that are reduced to the text of the Constitution, including the preamble; international
humanitarian law and the rules of ius cogens and international human rights treaties
that cannot be limited in states of emergency, that is, those that ‘prevail in the internal
order’ under Article 93-1 of the charter and (b) constitutional block in a broad sense,
which includes the rules of various hierarchies that serve as a parameter for control-
ling the constitutionality of ordinary legislation. This category includes organic laws,
some statutory laws, international treaties of territorial boundaries, other international
human rights treaties and treaties that allow limitation in states of emergency, based on
Article 93-2.33 Until 2016, the CCC cited the ACHR 2.702 times in its case law.
(iii) Argentina
In Argentina, the original text of the 1853 Constitution Articles 31 and 2734 states
that treaties should be considered the supreme laws of the nation, but they are not to
be applied in cases where they would violate principles of public law set forth in the
Constitution. Constitutional rules are not clear about how international treaties should
be incorporated into domestic law; however, some scholars consider a treaty to rank as
an internal statute with direct effect.35 Treaties are signed by the executive branch and
subsequently sent for approval by the legislative branch, which in turn enacts a statute
that the president finally ratifies. The Supreme Court (CSJN) named this process a
‘federal complex act’ (acto complejo federal).36
33 R. Uprimny Yepes, ‘El bloque de constitucionalidad en Colombia: un análisis jurisprudencial y un ensayo

de sistematización doctrinal’ (2005) Curso de formación de promotores/as en derechos humanos, libertad
sindical y trabajo decente (Universidad Nacional, Escuela Nacional Sindical, ENS Colombia, Bogotá, Avail-
able at: redescuelascsa.com/sitio/repo/DJS-Bloque_Constitucionalidad(Uprimny).pdf . (last accessed 20
August 2020)
34 Section 27—The Federal Government is under the obligation to strengthen its relationships of peace and
trade with foreign powers by means of treaties in accordance with the principles of public law laid down by
this Constitution; Section 31—This Constitution, the laws of the Nation enacted by Congress in pursuance
thereof, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each
province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws
or constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of 11 November
1859.
35 See Constenla, ‘Aplicación del derecho internacional de los derechos humanos por los tribunales de la
República Argentina’ (2003) 38 Revista Instituto Interamericano de Derechos Humanos 10 at 13; Pagliari,
‘Derecho internacional y derecho interno: el sistema constitucional argentino’ (2011) 7 Ars Boni et Aequi 17 at
19; Sommer, ‘Relaciones e interacciones entre el derecho internacional y el derecho interno en Argentina’
in Acosta López, Acosta Alvarado and Ramírez (eds), De Anacronismos y Vaticinios: Diagnóstico Sobre Las
Relaciones Entre el Derecho Internacional y el Derecho Interno en Latinoamérica, (2017) at 227.
36 Colautti, Derecho Constitucional, 2nd edn (1998) at 183–5. In the Frites case (Fallos 318:2513, 1995), the
applicants demanded that the President of the Republic communicate to the international body the ratifica-
tion of ILO Convention 169, approved by Congress by Statute 24,071. The CSJN replied that ratification,
an international act within the discretion of the president, is not to be confused with congressional approval
via federal law; the effect of the former is merely to authorise the president to ratify the treaty (para 07).
Congressional participation in the federal complex act is necessary but not definitive (para 08).
The CSJN’s stance on the direct effect of human rights treaties operating in the
legal order without the need for transformative statutes was not so obvious when the
period of the last military dictatorship (1976–83) ended in Argentina. According to
some 1980s CSJN decisions, statutes were required for some provisions of the ACHR
to be operative in the Argentine constitutional order.37

The direct effect (or operability) of human rights treaties and consistent interpreta-
tion in Argentina pre-1994 constitutional reform can be explained by the Ekmekdjian
case. Miguel Ekmekdjian appealed to the Supreme Court to compel Gerard Sofovich,
a television talk show host, to read Ekmekdjian’s letter in response to an alleged blas-
phemy about Jesus Christ and the Virgin Mary uttered by Dalmiro Saenz on Sofovich’s
show. The plaintiff based his complaint on Article 33 of the Argentine Constitution and
Article 14 of the ACHR. The CSJN began its ruling recognising the fundamental nature
of the right of reply. The court ruled that the right of reply in the Argentinean order was
established by Article 14 of the ACHR (sanctioned by Statute 23.054), which, once
ratified, became the ‘supreme law of the Nation’ (Article 31 CN). On that note, the
next question examined by the court concerned the direct effect (operability) of that
provision or whether it required legislative supplementation.
The court stated that the Vienna Convention on the Law of Treaties (VCLT)38
(in force since 1980 and ratified by Argentina on 1972) would give ‘primacy’ to
international law over domestic law (Article 27 of the VCLT). The court asserted that
the VCLT required that the organs of the Argentine state ensure primacy of the treaty
in the event of conflict with any contrary domestic rule.
Moreover, by using the consistent interpretation, the CSJN noted that the interpreta-
tion of the ACHR’s text must also be guided by the jurisprudence of the IACtHR, which
had previously held, in OC-07/86 39 that Article 14.1 guarantees a readily enforceable
remedy and that it is incumbent upon states to regulate the conditions for exercising
the right of reply (space allocated to it, deadlines, etc.). The Argentine court held that
judicial decisions could enforce the remedy enshrined by the treaty in accordance with
OC-07/86 without further need for specific legislation. The 1992 CSJN decision was
one of many inspirations for a call for constitutional reform40 to reshape international
human rights law in the CN. Article 75(22) of the reformed Argentine Constitution,
in 1994, outlined a handful of international instruments of constitutional status41 and
37 Eusebio, Felipe Enrique s / sucesión ab intestato, Fallos 310:1080, 1987 (the regulation of the conventional
right to equality between children born to married and unmarried parents required an internal civil law);
Ekmekdjian Miguel Angel c / Neustadt, Bernardo y Otro s / Amparo, Fallos 311:2497, 1988 (ACHR’s right of
reply may be applied in Argentina only after a congressional law has been issued).
38 1969, 1155 UNTS 331.
39 Enforceability of the Right to Reply or Correction IACtHR Series A 17 (1986).
40 Ábalos, ‘El rol de la Corte Suprema de Justicia de Argentina en relación con el control de convencionalidad y
su incidencia en el derecho interno’ (2013) 19 Revista Iberoamericana de Derecho Procesal Constitucional 245
at 248.
41 We prefer the term ‘international instruments’ to ‘international treaties’ because the Argentine Constitution
has conferred constitutional status on two declarations (the American Declaration of the Rights and Duties
of Man and the Universal Declaration of Human Rights) and optional protocols. The list format was chosen
so that there was greater control over the treaties with constitutional status, avoiding doubts about normative
prescriptions of human rights content in other treaties that did not directly have such an object. Dalla Vía.
‘La protección de los derechos humanos en Argentina’ in Bogdandy, Piovesan and Antoniazzi (eds) Direitos
Humanos, Democracia e Integração Jurídica na América do Sul (2010) at 568.
allowed others to be constitutionalised through the National Congress.42 After that,

the CSJN settled disputes that arose about the application of this provision, especially
in regard to the relationship between the rights and guarantees found in these treaties
and the constitutional rules that were not modified by the reform.

That constitutional provision specified that, for instance, treaties a) would be applied
under the conditions of their validity, b) would not annul any article of the organic
part of the Constitution and c) should be understood as complementary to the rights
that were granted by constitutional norms. Concerning this last issue, the Supreme
Court decided that it was necessary to conciliate and harmonise human rights and
constitutional rights to resolve future conflicts between constitutional provisions and
the provisions of an international treaty, thereby avoiding the application of the con-
stitutional supremacy criteria over the treaties, as in the Chocobar case. From 1994 to
2019, the CSJN cited the ACHR over 730 times in its case law.
(iv) Mexico
In 2011, Mexican Congress approved a reform of Article 1 of the Constitution of 1917
to further the country’s international commitments.43 According to this new provision,
a) human rights granted by international treaties signed by the Mexican state are
incorporated as constitutional rights; b) human rights provisions shall be interpreted
in conformity with the Constitution and international treaties and according to the
pro persona principle; c) all authorities are obliged to promote, respect, protect and
guarantee human rights according to the principles of universality, interdependence,
indivisibility and progressivity and d) the Mexican state must prevent, investigate,
punish and redress human rights violations.
This constitutional change overturned previous jurisprudence that placed treaties
above federal law but below the Constitution.44 After the constitutional reform of
2011, the Supreme Court (SCJN) had to reconsider this doctrine in relation to human
rights treaties; it ruled that its content had been incorporated, by this reform, into
the constitutional catalogue of rights, rendering irrelevant the distinction between
constitutional and international sources of human rights.45
Therefore, the rights enshrined in human rights treaties are part of the catalogue of
constitutional rights, dissociated from the international source and consequently from
its original hierarchy, to benefit from constitutional supremacy. Finally, the relationships
among the rights that are part of this catalogue must be resolved based on the interde-
pendence and indivisibility of all human rights. Thus, the hierarchical criteria are no
42 Treaties that pass with the support of a two-third majority of all members of each legislative chamber shall be
considered constitutional law. The following treaties are currently considered constitutional law: 1) Inter-
American Convention on Forced Disappearance of Persons (1994, 33 ILM 1529) in 1997, 2) Convention
on War Crimes and Crimes against Humanity (1968, G.A. Res. 2391, U.N. GAOR, 23d Sess., Supp. No 18,
at 40, U.N. Doc. A/7218) in 2003 and 3) Convention on the Rights of Persons with Disabilities and their
Optional Protocol (2006, A/RES/61/106, Annex II,3) in 2014.
43 See Caballero Ochoa, La Interpretación Conforme: El Modelo Constitucional ante Los Tratados Internacionales
sobre Derechos Humanos y el Control de Convencionalidad (2013); Vianello, ‘La reforma constitucional de
derechos humanos: una revolución copernicana’ (2011) 61 Revista de la Facultad de Derecho de México 69.
44 Rojas Amandi, La Aplicación de los Tratados en el Sistema Jurídico Mexicano (2015).
45 Expediente varios 912/2010, Semanario Judicial de la Federación y su Gaceta, Libro 1, Octubre de 2013,
Tomo I, at 313.
longer used as a method to resolve conflicts, and the pro persona method is established;
this method is viewed as a harmonising instrument and as a dynamic that allows the
constitutional catalogue of human rights to function.46
This constitutional change also led the SCJN to issue some binding rulings (tesis
jurisprudenciales) on the subject. Tesis LXV/201147 provides that the IACtHR’s deci-

sions in Mexican cases are entirely binding on all Mexican state organs, and Tesis
LXVI/201148 states that the standards issued by the IACtHR in cases in which Mexico
is not a party constitute guidelines for all Mexican judges whenever they grant broader
protection to people, according to Article 1 of the Constitution. In Tesis LXVII/2011,49
the SCJN recognises a duty of ex officio conventionality control, which means that every
judge should give preference to the human rights provided by the Constitution and
international treaties and should not apply any other legal provision that contradicts
them. Finally, Tesis LXVIII/201150 defines the following standards of this ex officio
conventionality control: a) all human rights provided by the Constitution and by federal
courts’ jurisprudence; b) all human rights provided by human rights treaties ratified by
Mexico; c) binding standards derived from the IACtHR’s decisions in Mexican cases
and d) guiding standards and precedents of the IACtHR when Mexico is not a party.
The SCJN itself exercises this conventionality control and cites the ACHR in 133 tesis
jurisprudenciales.
(v) Commentary
It can be observed that the impact of these formal constitutional changes is not depen-
dent upon how national legal systems understand their relationship with international
law once they have been adopted in countries with both monistic traditions (Colombia
and Mexico) and countries closer to dualistic traditions (Brazil and Argentina). In
addition, the way human rights treaties are incorporated into constitutional law does
not have a critical impact on any of the countries. Argentina adopted a nominal list of
constitutionalised treaties; Mexico preferred to give constitutional status to the rights
enshrined in treaties of any nature; Colombia and Brazil recognised constitutional
status for treaties based on their subject (human rights) and voting quorum. Therefore,
although ranking treaties is an essential step for a future judicial dialogue, how a
constitution chooses to incorporate treaties in its domestic system is not a determining
factor in the development of this dialogue. The constitutional status of human rights
treaties is also important to reinforce their direct effect by enabling their use in the
judicial review of legislation. However, high courts play a critical role in this matter, as
they have the power to make more or less intensive use of these treaties in concrete cases
and to give legal consequences to that status.
In Colombia, the creation of the concept of constitutional block in 1995 led the
CCC to start using the ACHR as a standard for judicial review. In Argentina, since
the Ekmekdjian case in 1992 and the Giroldi case in 1995, the primacy of the ACHR
46 Contradicción de Tesis 293/2011, Gaceta del Semanario Judicial de la Federación, Libro 5, Abril de 2014,
Tomo I, at 96.
47 Semanario Judicial de la Federación y su Gaceta. Libro III, Diciembre de 2011, Tomo 1, at 556.
over domestic law has been part of the repertoire of the CSJN. In Mexico, since the
reform of 2011, the SCJN has even recognised conventionality control as a duty of
all domestic judges. In these three cases, we can see domestic courts making regular
use of the ACHR to disregard domestic laws that are incompatible with it, applying

conventionality control to ordinary laws. In Brazil, despite the supra-legality doctrine,
the STF did not develop a jurisprudence to reinforce the direct effect of human rights
treaties.
B. Consistent Interpretation
The constitutional status and direct effect of human rights treaties allow courts to apply
international law to control the validity of ordinary laws. However, when there is a
conflict between a human rights treaty’s provisions and the constitution itself, domestic
courts must resort to consistent interpretation to prevent a breach of international law
by the state.
(i) Colombia
In Colombia, despite the possibility of giving direct effect to international law, Colom-
bian judges more often quote the ACHR through the principle of consistent interpre-
tation; i.e. it serves as an interpretative tool to develop the meaning of constitutional
provisions about fundamental rights in conformity with international human rights law.
The CCC regards Article 93-2 of the Colombian Charter as a command for consistent
interpretation. Since this clause provides that the rights and duties of the Constitution
shall be interpreted in accordance with the international human rights treaties ratified
by Colombia, and the ACHR established the IACtHR as the authorised organization to
interpret the convention, its jurisprudence must be valued in the process of interpreting
constitutional rights and duties.
Sentence C-010/200051 set a benchmark for the consistent interpretation tech-
nique, as the court raised the jurisprudence of the IACtHR to the condition of relevant
interpretative criteria for defining the meaning of the ACHR norms and the Constitu-
tion itself—although the jurisprudence is not part of the constitutional block.52 Even
though the CCC does not deem itself bound by Inter-American case law, Colombian
judges consider themselves to have an obligation to consider the IACtHR sentences and
advisory opinions seeking the best answers to the constitutional problems presented
before the domestic courts.
(ii) Argentina
Consistent interpretation is not always used under this name by the courts but can
be identified. In Argentina, the CSJN has argued for consistent interpretation even
after the 1994 constitutional reform with its ruling in Giroldi.53 The court stated that
international jurisprudence should serve as a guide (guia) in interpreting constitutional
51 Corte Constitucional de Colombia, Sentencia C-010, de 19 de enero de 2000.

52 See also Corte Constitucional de Colombia, Sentencia T-1319, de 7 de diciembre de 2001; Sentencia C-355,
de 10 de mayo de 2006; Sentencia C-370, de 18 de mayo de 2006; Sentencia C-715, de 13 de septiembre de
2012.
53 Giroldi, Horacio D. y otro s/ Recurso de casación, Fallos, 318:514, 1995.
provisions. From Giroldi onward, the CSJN created the doctrine of the binding effect
of international jurisprudence.54 In the Chocobar case,55 the court ruled that the con-
stitutional text demands a complementary interpretation of constitutional and human
rights. It is the duty of the court to harmonise the constitutional text with treaties so that

no collision or derogation takes place. The non-derogability and harmonization clause
must be interpreted as a previous verdict of the reforming powers, and it is up to the
judiciary to respect it. The duty to harmonise constitutions and treaties reinforced the
ideal of consistent interpretation prior to the more profound developments presented
in Simón (2005) and Mazzeo (2007).
(iii) Mexico
In light of the constitutional reform in 2011, Article 1 of the Mexican Constitution states
that human rights provisions shall be interpreted in conformity with the Constitution
and international treaties and according to the pro persona principle.56 Based on this
clause, the SCJN, in tesis LXIX/2011,57 set three steps to be followed by the judiciary in
the exercise of diffuse judicial review and ex officio conventionality control in relation
to human rights matters. The steps are as follows: a) Judges should use consistent
interpretation in a broad sense, i.e. they should interpret domestic law according to
the human rights granted by the Constitution and the treaties of which Mexico is part,
always favouring the interpretation that better protects human rights (‘most favourable
treatment’). b) Consistent interpretation is defined in a strict sense, which means that
when there are different valid interpretations of a domestic statute, judges must favour
the one that complies with the human rights granted by the Constitution and with the
international treaties ratified by Mexico to avoid affecting or violating the essential con-
tent of the rights. c) The law should not be applied when previous alternatives cannot
be adopted. Thus, the diffuse control of constitutionality and ex officio constitutionality
will result in the possibility of non-application of a law by the judge.
(iv) Brazil
In Brazil, the doctrine of supra-legality was adopted through a case of consistent
interpretation decided by the STF. When ruling on the imprisonment of unfaithful
trustees, the court prevented the application of the constitutional rule on the subject
by declaring unlawful the infra-constitutional norms that were necessary to implement
this type of punishment. Therefore, the STF interpreted the constitutional rule to make
it compatible with the ACHR, or, as the same court said, ‘in the light of’ the ACHR.
However, the STF did not develop this doctrine of consistent interpretation and, as seen
above, does not even regularly use the ACHR to support its jurisprudence.
54 Ábalos, supra n 42 at 255.

55 Chocobar, Sixto c/Caja Nacional de Previsión para el Personal del Estado y Servicios Públicos, Fallos 310:3267,
1996.
56 Ferrer Mac-Gregor (ed) El Control Difuso de Convencionalidad: Diálogo Entre la Corte Interamericana de
Derechos Humanos y Los Jueces Nacionales (2012).
57 Semanario Judicial de la Federación y su Gaceta, Libro III, Diciembre de 2011, Tomo 1, at 552.
(v) Commentary
As seen, consistent interpretation increases the possibility of using human rights treaties
and serves to resolve conflicts between domestic and international law, even at the
constitutional level. When applying this technique, national courts must approach

IACtHR jurisprudence to ensure state compliance with the ACHR, fostering judicial
dialogue.
C. Judicial Postures
National courts that apply human rights treaties and use consistent interpretation tend
to adopt a posture of convergence or engagement with international law.
(i) Colombia
In Colombia, the CCC perceives international human rights law as a reflective tool
of legal reasoning rather than as a supreme law above the Constitution. As a result,
the CCC develops a dialogue with the IACtHR but does not automatically follow
its arguments; Bogotá can agree with and dissent from San Jose’s reasoning. One
example of this posture is given by sentence C-317/02.58 In this case, the quota-
tion of the Velásquez Rodriguez and Godínez Cruz v Honduras cases helps the CCC
build a broader domestic concept of enforced disappearance than the Inter-American
one. This is an example of relational engagement59 because the CCC considers itself
obligated to consider the international human rights treaties due to Article 93 of the
Constitution. It seems that the CCC reads Article 93 not as a convergence requirement
but as an order to take into account the content of treaties to better interpret the
Constitution.
In sentence C-228/02,60 the CCC adopted a concept of full reparations for victims
in light of international human rights law.61 The court developed solid arguments in a
dedicated chapter of the judgment, based on international human rights law, to finally
conclude that the conception of reparations adopted by the Colombian legislation was
insufficient given the duty of effective protection of human rights. According to the
CCC, Colombian law must be interpreted in conformity with the international human
rights treaties ratified by Colombia, which is why reparations for victims, solely in
terms of compensation, seem unconstitutionally limited. Instead, the CCC recognises
the imperative to adopt a concept of full reparations for victims, articulating three
complementary axes on the ideas of reparations, truth and accountability: in addition
to economic compensation for the damage experienced, access to justice must be
guaranteed to know the truth and seek a fair sanction for those responsible for the
violations. The CCC supports this position in several IACtHR decisions, such as
Advisory Opinion OC-9/87, Velásquez Rodriguez v Honduras and Barrios Altos v Peru.
58 Corte Constitucional de Colombia, Sentencia C-317, de 2 de mayo de 2002.

59 Jackson, supra n 17 at 72.
60 Corte Constitucional de Colombia, Sentencia C-228, de 3 de abril de 2002.
61 See also Corte Constitucional de Colombia, Sentencia C-916, de 29 de octubre de 2002; Sentencia T-558,
de 10 de julio de 2003; Sentencia C-004, de 20 de enero de 2003; Sentencia C-203, de 8 de marzo de 2005;
Sentencia C-370, de 18 de mayo de 2006.
Another case that is relevant to understanding the role of domestic courts in enforc-
ing the international rule of law is T-558/03.62 This ruling reveals how the CCC ‘fills
the missing link’ in international law, offering relief when public authorities ignore or
violate their international obligations.63 Its importance is defined by the following:

the CCC concluded that the precautionary measures ordered by the Inter-American
Commission on Human Rights are mandatory in Colombia. After interpreting multiple
rules of the Colombian system, it established that the attribution is the responsibility of
each public authority to comply with the precautionary measures and the court decided
that tutela is a suitable action to enforce compliance with international decisions by
national authorities.
The development of the doctrine on the obligation to comply with international
decisions continues in judgment T-327/04,64 specifically on the effects of the provi-
sional measures issued by the IACtHR.65 The claimant alleged that a series of threats
and intimidating tactics had been suffered by the San José de Apartadó peace commu-
nity, committed by a group of state agents headed by a Colombian army general. The
CCC restated the case law of sentence T-588/03,66 reaffirming that tutela is a suitable
action to demand compliance with the provisional measures imposed by international
organizations. The Colombian court noted that the measures should be examined in
good faith by the Colombian state and that their binding force would derive from the
obligation of public authorities to respect and protect fundamental rights, especially
those that comprise the constitutional block.
In the operative part of the decision, the CCC ordered the Commander of the
National Army’s XVII Brigade to fulfil the demands of the Inter-American Court to
guarantee the life and personal integrity of the members of the San José de Apartadó
peace community. Additionally, the CCC determined that the Commander should
immediately inform the Attorney General and the Defensoria del Pueblo in the event of
the arrest of any member of the community, and it prohibited the arrest of such mem-
bers on Army premises. In this way, the CCC internalised the international decision by
transcribing the eight operative points addressed to the state in the provisional measure
of the IACtHR and by expressly requiring that the Commander of the XVII Brigade
comply with them.
This led to two noteworthy movements. The first was the internalization of the
international obligation using the same text contained in the IACtHR’s resolution.
The second was the individualization of international responsibility in the XVII Army
Brigade Commander. In these circumstances, the CCC adjusted the international
court’s resolution to the national reality to give full effect to the provisional mea-
sure, highlighting the complementary nature of the two regimes and the reliance on
international law in domestic institutions.
62 Corte Constitucional de Colombia, Sentencia T-558, de 10 de julio de 2003.

63 Nollkaemper, supra n 13 at 06.
64 Corte Constitucional de Colombia, Sentencia T-327, de 15 de abril de 2004.
65 See also Corte Constitucional de Colombia, Sentencia T-324, de 04 de abril de 2005; Sentencia T-1025, de 3
de diciembre de 2007; Sentencia T-367, de 11 de mayo de 2010; Sentencia T-585A, de 28 de julio de 2011;
Sentencia T-653, de 23 de agosto de 2012; Sentencia T-976, de 18 de diciembre de 2014.
66 Corte Constitucional de Colombia, Sentencia T-588, de 17 de julio de 2003.
(ii) Argentina
In Argentina, according to Manili,67 there are two stages of usages of the Inter-American
case law by the CSJN. The first began with Giroldi (1995) and the second with Simón
(2005). The second stage is described as strict following (seguimiento a rajatabla) of the

Inter-American Court’s jurisprudence and the absence of any margin of appreciation. In
Simón (2005),68 the CSJN declared statutes 23,492 and 23,521 unconstitutional. These
two statutes, known as ‘Endpoint’ (1986) and ‘Due Obedience’ (1987), respectively,
both prevented the trial and punishment of those responsible for committing crimes
against humanity in the last military dictatorship in Argentina (1976–83). The Argen-
tine court noted that, as a starting point, there have been changes in the Argentine legal
order since those laws were enacted.69
The constitutional status of international human rights treaties after 1994 meant
that, for instance, the state assumed a series of obligations under international law,
especially the Inter-American legal order, which, among other things, restricted the
possibility of avoiding the prosecution of crimes against humanity through amnesty
laws. The CSJN ruled that the transfer (traslación) of the Inter-American Court’s
conclusions on the subject was ‘imperative’ because the laws in Simón shared the same
flaws as those statutes that were the object of earlier precedents from the international
court, which ensured the impunity of serious violations of human rights.
Finally, in the Mazzeo case,70 the CSJN accepted the obligation to comply with
the conventionality control of Argentine laws, as determined by the IACtHR. The
case under consideration was brought to the Supreme Court for the court to assess
the declaration of unconstitutionality of the Decree of Pardon 1002/89, issued by
the National Executive Power in favour of Santiago Omar Riveros and others, for
acts considered crimes against humanity. More recently, however, a CSJN precedent
may have set a stricter criterion in this pattern of judicial dialogue. The Ministry of
Foreign Affairs asked the CSJN to comply with an IACtHR remedial order to remove
all legal effects stemming from a civil conviction imposed by the CSJN, as issued in the
Fontevecchia v Argentina (2011) case. In its decision,71 the CSJN maintained that it was
not failing to recognise the obligation of the IACtHR’s ruling on the Argentine state, on
account of Article 68.1 of the ACHR, but that its obligation would be conditioned on
the alignment of the competences of the international court and its capacities to impose
remedial measures.
The CSJN argued that the IACtHR is not a fourth judicial instance capable of
reviewing or annulling state jurisdictional decisions but is a subsidiary, auxiliary and
complementary instance, whose form of action would give the states space for a national
margin of appreciation. Thus, to render an internal Supreme Court decision devoid of
legal effect would be the same as revoking it, turning the international court into a review
body of the decisions of the Supreme Court. Finally, the Argentine Constitution could
67 Manili, Manual De Derechos Humanos (2017) at 319.

68 Simón, Julio Héctor y otros, Fallos 328:2056, 2005.
69 As in the case of Ramón Juan Alberto Camps and others (Fallos 310:1162, 1987), when those statutes were
deemed constitutional.
70 Mazzeo, Julio Lilo y otros s/ rec, Fallos 330:3248, 2007.
71 Ministerio de Relaciones Exteriores y Culto s/ informe sentencia dictada en el caso ‘Fontevecchia y D’Amico v.
Argentina’ por la Corte Interamericana de Derechos Humanos, CSJ 368/1998, 2017.
not be repealed or affected by international treaties, especially in cases where structural

issues of public law were at issue (Article 27 CN).
A few months after the CSJN’s ruling, the IACtHR responded directly to the argu-
ments presented above.72 In a monitoring compliance order, the international court

not only reiterated the need to comply with its rejected decision on the basis of its
precedents or the ACHR rules but also refuted the grounds raised by the Supreme
Court for such rejection. The IACtHR began its statement by recalling that the duty
to comply with its decision stands as a basic principle of international law regarding the
international responsibility of states. Thus, states should abide by their international
obligations in good faith (pacta sunt servanda). The obligation to comply with the
provisions of IACtHR judgments would not be subject to restrictions given that those
judgments are binding in all states, in conformity with Article 68.1 of the ACHR. On the
other hand, states have a conventional obligation to internally implement the provisions
of IACtHR judgments under penalty of non-compliance and of the commitment of
illicit international acts. States, according to the IACtHR, cannot cite constitutional
rules or other domestic law matters to justify the failure to fulfil treaty obligations. The
case at issue does not concern the dispute between the supposed supremacy of one
legal order over another but rather is about the enforcement of an obligation to which
a sovereign state has committed itself in a treaty, including its judicial bodies.
To fulfil its duty to ‘render internal judgments null and void’, it would be up to
Argentina to identify which actions should be implemented or by which domestic law it
would be possible to comply with that remedy. The CSJN, for example, interpreted the
above request as synonymous with the reversal of its ruling issued in 2001. In its ruling,
the IACtHR made no indication that to comply properly with its judgment, the state
would have to reverse the internal judgments of the Supreme Court; rather, it meant
for only the state to take the necessary judicial measures to render the ACHR-violating
judgments ineffective. It also noted that the same remedy had already been complied
with by other countries and by Argentina itself in similar cases.
The dialogue between courts deepened as the IACtHR suggested ways in which
the CSJN could have complied with its ruling, indicating two examples that could go
beyond a supposed procedural reversal: the possible elimination of the internal ruling
from webpages or, if the Supreme Courts decided to keep it archived on the internet, the
insertion of some kind of annotation indicating the quality of a Supreme Court decision
that violated human rights. A couple of months later,73 the CSJN issued a resolution
incorporating the suggestion made by the IACtHR and stamped a caption in its decision
declaring the resolution incompatible with the ACHR, as ruled by the IACtHR. The
resolution noted that the IACtHR clarified (aclaró) that its condemnatory judgment
did not imply the obligation of legal reversion of the Supreme Court decision.
(iii) Mexico
In Mexico, the SCJN acknowledged that it should maintain a permanent judicial
dialogue with the IACtHR, since the two courts share the goal of protecting human
72 Case of Fontevecchia and D’Amico v. Argentina. Monitoring Compliance with Judgment. Order of the Inter-
American Court of Human Rights of 18 October 2017.
73 CSJ, Resolución, 4015/17, 2017.
rights. Therefore, the relationship between the two courts must be understood in terms
of cooperation and collaboration. The application of IACtHR jurisprudence must thus
be carried out collaboratively and not in contradiction to national jurisprudence such
that rulings that ultimately entail divergent opinions about the scope of a human right

should be solved based on the pro persona principle, favouring the interpretation that
better protects human rights.
The binding effect of the Inter-American standards is not to be understood as a
perennial fixed rule, i.e. as a standard that imposes a restriction on local judges and
can in turn be resolved only by the application of the legal criteria established by the
IACtHR, thus disregarding SCJN precedents. In contrast, the Mexican Court states that
this obligation is to be understood as binding on judges so that a minimum standard
must be observed in their decisions; however, this standard could be that of either the
IACtHR or the SCJN, depending on which is the most favourable to persons.
However, the measures established by the IACtHR when it rules against the Mexican
state are binding, unlike Inter-American standards established in cases where Mexico is
not a party; in the latter case, judges must evaluate whether the precedent applies to
the Mexican legal order. Therefore, this binding effect of Inter-American jurisprudence
demands the following from Mexican judges (Contradicción de tesis 293/2011): (a)
when the standard has been issued in a case in which the Mexican state was not a
party, the applicability of the Inter-American precedent to a specific case decided by the
SCJN must be determined based on the existence in that case of the same legal reasons
that led to the IACtHR ruling. (b) In every legal case, whenever possible, IACtHR
jurisprudence must be harmonised with SCJN case law. (c) If such harmonization is
impossible, the standard that is most favourable to the protection of human rights must
be favoured. However, there has never been a case at the SCJN presenting a clear or
obvious constitutional restriction that did not conform to an international human rights
treaty.
In the Contradicción de tesis 299/2013,74 the SCJN determined that its jurispru-
dence cannot be non-applicable, even under the assumption of conventionality control.
According to this precedent, the SCJN, arguing based on constitutional supremacy
and its paramount duty to produce legal certainty, decided that the stare decisis of
Contradiccion de tesis 293/2011 is not applicable in cases of explicit constitutional
restrictions on legal rights, even if the judicial body intends to enact conventionality
control.
The SCJN established stricter criteria for the model of conventionality control in
the Contradicción de tesis 299/2013 than in Expediente 912/2010 and Contradicción
de tesis 293/2011. A Mexican judge cannot modify the meaning of the protection of
a human right if it was previously defined in SCJN jurisprudence before the 2011
constitutional reform. A judge also cannot alter the human rights standard, regardless of
whether she has an interpretation that grants greater protection to the person because
it is not possible to set aside the constitutional jurisprudence consolidated before the
constitutional reform. To this day, the SCJN has not come across such a hypothesis in
its jurisprudence.
74 Gaceta del Semanario Judicial de la Federación. Libro 23, Octubre de 2015, Tomo I, at 325.
(iv) Brazil
In Brazil, given the lack of constant use of the ACHR, it is not surprising that the STF
almost never uses IACtHR jurisprudence. From 2009–17, there are only 28 references
to its case law in STF rulings. Eight of them, written by the same judge, mention the
IACtHR case Palamara Iribarne v Chile,75 which was about military jurisdiction, but do

not entirely follow San Jose’s jurisprudence, which forbids states from subjecting civil-
ians to military courts. In addition, the kind of IACtHR references made by the Supreme
Court do not differ from its use of the ACHR, as IACtHR rulings are mentioned
together with other international court rulings and do not work as proper support for
Supreme Court decisions.
In a famous case, the posture adopted by the STF is clear. In April 2010, the STF
ruled on a case filed by the Brazilian Bar Association (Ordem dos Advogados do Brasil)
against the application of the amnesty law that was adopted in 1979 as an instrument
of democratic transition in Brazil. The Bar argued that this norm was incompatible
with the fundamental principles and rights outlined in the 1988 Constitution, as the
amnesty law granted impunity to state officials who violated human rights by torturing
and killing political opponents during the military dictatorship. However, the majority
of the STF’s judges refused to annul the amnesty law, arguing that the new Constitution
could not change political decisions that enabled the democratic regime and that this
law also benefited the opposition at the time.76
When discussing this matter, the STF showed no awareness of IACtHR jurispru-
dence,77 which was firmly established in the Barrios Altos v Peru case.78 For San José’s
court, amnesty provisions are incompatible with the ACHR, as they prevent the investi-
gation and punishment of those responsible for violations against non-derogable rights,
such as torture and extrajudicial execution, and they violate survivors’ and victims’
family members’ rights to a fair trial and to judicial protection. Therefore, amnesty law
provisions that contradict the ACHR lack legal effect and should not be applied by
domestic courts.
In November 2010, the IACtHR had the opportunity to reiterate its position in the
case of Gomes Lund and Others v Brazil, also known as the ‘Guerrilha do Araguaia’
case, which was related to forced disappearances of military dictatorship opponents.
As expected, the court ruled as follows:
The provisions of the Brazilian Amnesty Law that prevent the investigation
and punishment of serious human rights violations are not compatible with the
American Convention, lack legal effect, and cannot continue as obstacles for
the investigation of the facts of the present case, neither for the identification
and punishment of those responsible, nor can they have equal or similar impact
regarding other serious violations of human rights enshrined in the American
Convention which occurred in Brazil.79
75 IACtHR Series C 135 (2005).

76 Arguição de Descumprimento de Preceito Fundamental 153, Diário da Justiça Eletrônico 145/2010 at 48.
77 The only Supreme Court judge who mentioned IACtHR jurisprudence referred to it incorrectly, considering
its case law to apply exclusively to auto-amnesty laws.
78 IACtHR Series C 75 (2001).
79 Case of Gomes Lund et al. (‘Guerrilha do Araguaia’) v Brazil IACtHR Series C 219 (2010) at 113.
Afterwards, in 2011, a new petition was filed before the STF asking for compliance with
the IACtHR ruling, but the Brazilian Court has not yet decided on this case. Moreover,
the STF blocked public prosecution attempts to open criminal procedures against some
officials, even after the IACtHR issued, in 2014, a monitoring compliance order again
urging domestic courts not to apply the amnesty law.80

4. WHAT KIND OF DIALOGUE?
Our study shows that the Argentine and Mexican Supreme Courts and the Constitu-
tional Court of Colombia dialogue with the IACtHR. These national courts not only
give direct effect to the ACHR but also acknowledge that IACtHR jurisprudence is
critical to consistent interpretation and to conventionality control. Nonetheless, the use
of safeguard arguments positions these courts closer to a posture of engagement than one
of convergence.81
We employ the term ‘safeguard argument’ for the qualifying terms used by national
courts to explain their obligation to consider international jurisprudence in order to
comply with their duty of consistent interpretation while simultaneously keeping their
authority to disagree with IACtHR whenever necessary. These safeguard arguments
enable domestic courts to control the reception of international precedents.82 Safe-
guard arguments appear in the jurisprudence of national courts through the use of
expressions or statements that indicate relational engagement, instead of complete
convergence, with San José’s jurisprudence.
In Argentina, the CSJN initially employed the term guide (guía) to refer to IACtHR
jurisprudence in the Ekmekdjian case (1992). A little over a decade later, after the
1994 reform and the appointment of new justices, the Argentinian court employed the
expression unsurpassable interpretative standard (incontornável pauta interpretative) in
Mazzeo (2007), a controversial case on pardons granted to individuals who committed
crimes against humanity. However, the CSJN once again used the term guide in Romero
Feris (2018),83 shortly after the Fontevecchia case (2017), which limited the bindingness
of the measures of reparation imposed by the IACtHR.
In Colombia, ever since the ruling in the C-406 sentence, the CCC has acknowl-
edged the importance of IACtHR jurisprudence. First, it stated that its case law was a
relevant hermeneutical standard (criterio hermenéutico relevante) to establish the meaning
of constitutional rules about rights. Later, in the C-010 sentence in 2000,84 the CCC
held that IACtHR rulings are an important hermeneutical standard (pauta hermenéu-
tica importante) to interpret treaties. However, from 2006 onwards, since the C-355
80 Case of Gomes Lund et al. (‘Guerrilha do Araguaia’) v Brazil. Monitoring Compliance with Judgment. Order
of the Inter-American Court of Human Rights of 17 October 2014.
81 Both Argentina and Colombia are used as examples by Vicky Jackson of countries that offer normative and
jurisprudential incentives for convergence postures. See Jackson, supra n 17 at 43–4.
82 Von Bogdandy and Paris use the concept of ‘relationality’ to describe a similar pattern of judicial attitude
from constitutional courts in Europe. See Bogdandy and Paris, ‘Building Judicial Authority: A Comparison
between the Italian Constitutional Court and the German Federal Constitutional Court’, Mpil Research Paper
Series (2019). On the Italian Constitutional Court, see also Cartabia, ‘Of Bridges and Walls: The “Italian
Style” of Constitutional Adjudication’ (2016) 8 Italian Journal of Public Law 37.
83 Romero Feris, Raúl Rolando y otros s/peculado, CSJ 4152/2015/RH1, 2018.
84 Corte Constitucional de Colombia, Sentencia C-010, de 19 de enero de 2010.
sentence,85 the court made clear that the jurisprudence of international courts is not
part of the constitutional block, giving it more room to interpret international treaties,
even if in a direction opposite that reached by the IACtHR. Therefore, the CCC ruled
that IACtHR rulings bind the Colombian state only in cases in which this state is a part

of the international case; it is the responsibility of the CCC to adequately harmonise
the national and international legal systems, which prevents a relationship in which one
court prevails over the other.
Finally, in Mexico, the SCJN states that IACtHR decisions in which Mexico has not
been a party will be considered guidelines (criterios orientadores), whereas decisions that
rule against Mexico are binding, as it decided in Tesis LXV/2011, Tesis LXVI/2011 and
Tesis LXVIII/2011.
Therefore, these courts view consistent interpretation as a double-edged interpreta-
tive practice in the dialogue between courts: first, it corroborates the predisposition of
the domestic court in welcoming the international jurisprudence and adapting its local
provisions to the directives of the IACtHR. On the other hand, through safeguard argu-
ments, it makes room for possible restrictions, reinterpretations or even disregard of
international standards whenever the courts deem appropriate based on their national
constitution.
In fact, the terms employed in safeguard arguments by the courts of Argentina,
Colombia and Mexico can be understood as establishing different degrees of binding-
ness of IACtHR precedents, including decisions in which the states are not a party.
Such gradation is more evident in the Argentinian case, where the court alters or mod-
ulates the bindingness through the terms guide (weaker) and unsurpassable standard
(stronger).
The consistent interpretation carried out by the national courts indicates that their
willingness to enforce international law standards will not be absolute or that those
standards will overcome, in every instance, constitutional interpretations. In other
words, when referring to a guide, or a standard, national courts engage with international
jurisprudence, but they also demonstrate that the bindingness of IACtHR precedent
is contingent on factors that will be considered at the moment when consistent inter-
pretation is carried out (e.g. the preexistence of a consolidated constitutional doctrine;
compliance, or non-compliance, with the pro persona principle; non-violation of public
law principles; existing constitutional restrictions on human rights not provided in a
treaty).
Therefore, as national courts not only apply consistent interpretation but also use
safeguard arguments, their attitude can be classified as one of relational engagement in
dialogue with the IACtHR. In the Brazilian case, there is no significant use of consistent
interpretation nor of IACtHR jurisprudence, which implies a resistance posture. In
addition, we highlight a difference in the practice of consistent interpretation by the
courts of Argentina, Colombia and Mexico. When consistent interpretation is based
on the ACHR, these courts ground their interpretation in the goal of harmonising
domestic and international law. One of the practical consequences of using consistent
interpretation based on harmonization is the risk of its redundancy, since it may serve
as a reinforcement to constitutional interpretations of constitutional provisions or
85 Corte Constitutional de Colombia, Sentencia C-355, de 10 mayo de 2006.

reinforce idiosyncratic readings of the ACHR. In this situation, consistent interpreta-

tion grants greater control to national courts over the results.
On the other hand, consistent interpretation based on IACtHR jurisprudence car-
ried out by national courts accommodates safeguard arguments, which may determine

the scope of application of the content of San José’s jurisprudence, due to a detachment
between ACHR text and the case law stemming from its overseeing body, as conceived
by domestic courts. The distinction between the duty to harmonise with the ACHR,
which is often required by a constitutional provision, and the less binding duty to
consider IACtHR jurisprudence enables national courts to disagree with the IACtHR
when its reasoning violates structuring constitutional principles (see the Fontevecchia
case in Argentina, 2017), opposes constitutional rules and principles that compose
the constitutional block (see sentence C-355/06 in Colombia) or is at odds with an
entrenched Supreme Court precedent (see Contradicción de tesis 299/2013 in Mexico).
Despite the development of this jurisprudence by the courts examined, our research
did not identify further examples of its application, especially concerning the hypothe-
ses of distinguishing or departing from international precedents.
5. CONCLUDING REMARKS
Our comparative study has found that the national courts of Colombia, Argentina and
Mexico regularly use IACtHR jurisprudence to interpret national law. These three cases
present some common features:
a. Formal constitutional changes or new constitutions foster the reception of

international human rights law by giving human rights treaties constitutional
status and thus recognising their primacy over statutes.
b. National courts’ jurisprudence recognises the direct effect of human rights
treaties and constantly uses the ACHR to exercise conventionality control of
domestic laws that are incompatible with the international obligations of the
state.
c. National courts use the principle of consistent interpretation with international
law to avoid conflicts between human rights treaties and the constitution.
d. When these previous conditions are in place, national courts acknowledge an
obligation to follow or, at least, consider IACtHR jurisprudence.
e. The posture of national courts is best described as one of relational engagement,
insofar as they retain their authority to disagree with IACtHR jurisprudence
when they believe that constitutional rules must be interpreted in a different way.
In our study, the Supreme Court of Brazil is the only case in which we can identify a
resistance posture against dialogue with the IACtHR. Contrary to those of its coun-
terparts, Brazil’s legal order gives supra-legal status to human rights treaties, and the
Supreme Court does not make constant use of the ACHR to control the conventionality
of ordinary laws or to adopt consistent interpretation. The absence of these conditions
helps explain the lack of judicial dialogue with the IACtHR.
It is also worth noting that the posture of relational engagement supports further
development of judicial dialogue. As national courts respond to the IACtHR’s decisions
and do not force themselves to converge with its jurisprudence, the international
court should also consider and react to its counterparts’ reasoning, seeking a better
understanding of human rights through an ongoing dialogue.

ACKNOWLEDGEMENTS
We are grateful to René Urueña, Julieta Rossi, José Luis Caballero Ochoa and Nicolás
Montoya for their comments to earlier drafts of this paper.
FUNDING
This research was funded by the National Council for Scientific and Technological
Development (Conselho Nacional de Desenvolvimento Científico e Tecnológico—
CNPq).

Antonio Moreira Maués - Judicial Dialogue Between National Courts and The Inter-American Court of Human Rights

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Antonio Moreira Maués - Judicial Dialogue Between National Courts and The Inter-American Court of Human Rights

Uploaded by

Copyright:

Available Formats

Human Rights Law Review, 2021, 21, 108–131

Judicial Dialogue Between National

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

* Professor, Institute of Legal Sciences, Federal University of Pará, Brazil (amaues@ufpa.br).

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

1 Slaughter, ‘A typology of transjudicial communication’ (1994) 29 University of Richmond Law Review 99 at

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

2. GRAMMAR OF JUDICIAL DIALOGUE

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

14 C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1991] Case C-106/89 [1991] 1

no awareness of international sources, or active resistance, when these sources

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

22 Piovesan, Direitos Humanos e o Direito Constitucional Internacional, 2nd edn (1997).

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

33 R. Uprimny Yepes, ‘El bloque de constitucionalidad en Colombia: un análisis jurisprudencial y un ensayo

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

allowed others to be constitutionalised through the National Congress.42 After that,

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

51 Corte Constitucional de Colombia, Sentencia C-010, de 19 de enero de 2000.

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

54 Ábalos, supra n 42 at 255.

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

58 Corte Constitucional de Colombia, Sentencia C-317, de 2 de mayo de 2002.

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

62 Corte Constitucional de Colombia, Sentencia T-558, de 10 de julio de 2003.

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

67 Manili, Manual De Derechos Humanos (2017) at 319.

not be repealed or affected by international treaties, especially in cases where structural

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

75 IACtHR Series C 135 (2005).

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

85 Corte Constitutional de Colombia, Sentencia C-355, de 10 mayo de 2006.

reinforce idiosyncratic readings of the ACHR. In this situation, consistent interpreta-

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

a. Formal constitutional changes or new constitutions foster the reception of

Downloaded from https://academic.oup.com/hrlr/article/21/1/108/6069227 by cujasperio@univ-paris1.fr user on 06 February 2021

You might also like