The Inter-American Court of Human Rights and Conventionality Control

Dialogue or Dominance?

Abstract

During the past seventeen years, the Inter-American Court of Human Rights (IACtHR), based in San José, Costa Rica, has taken substantial steps to ensure compliance with its decisions. It devised a brand-new tool, known as ‘conventionality control’ (CC), which bears some resemblance to the judicial review paradigm sketched out by the U.S. Supreme Court in the famous Marbury v. Madison decision (1803). It also has more immediate historical connections with ‘control of community law’ exercised by the European Court of Justice (ECJ). CC basically compels national judges to uphold both San José de Costa Rica Treaty provisions and Inter-American Court of Human Rights case law. This Court has stressed in the past the need for effective national compliance of its rulings. Now domestic judges are not only bound by their national constitutional and legislative framework, but also by the Treaty and its supra-national interpretation. Tensions mount as Supreme and/or Constitutional Courts are no longer in fact final, at least as far as human rights are concerned. Sovereignty is blurred and constitutional supremacy is jeopardized. Conventionality control discourse is linked to the Latin American cultural and political traditions of ineffective judicial oversight and lack of full enforcement of judicial decisions. However, despite its will, the IACtHR will have to bolster its own political and even administrative performance, if it wants to effectively impose this new standard on national judicial bureaucracies.