Public International Law/Human Rights Law/Human Rights Protection/Inter-American Human Rights System





Authors: Verena Kahl , Walter Arévalo-Ramírez, Andres Rousset-Siri "Required knowledge: Sources of International Law; Human Rights Law Beneficial: Indigenous Peoples; TWAIL and Decolonisation" "Learning objectives: to understand the activity and the scope of the human rights protection bodies and instruments in the Americas"

A. Introduction
In April 1948, after the end of a devastating Second World War, delegates from 21 countries met in Bogotá, Colombia, to strengthen cooperation among American States. In their quest for institutionalization, they created the Organization of American States, which today comprises 35 member States. During the Ninth International Conference of American States, the first international human rights instrument of a general nature was adopted, which laid the foundation for the Inter-American Human Rights System: the American Declaration of the Rights and Duties of Man.

While the Inter-American Human Rights System had thereby formally been established even shortly before the Universal Declaration of Human Rights came into being, it took several years before the system actually went into operation. An important driver of this operationalization was the adoption of the American Convention on Human Rights, a legally binding human rights instrument which established the Inter-American Court of Human Rights (IACtHR) as a competent organ alongside the Inter-American Commission on Human Rights (IACHR), which had already been established by a resolution of the OAS in 1959. With regard to institutional safeguards, the Inter-American Human Rights System thus follows a twofold structure, which can also be found in the African Human Rights System and had formerly been applied in the European System of Human Rights. Besides this institutional setting, it is important to note that the Inter-American Human Righs System developed in the context of long lasting dictatorships and civil wars in the region, which also shaped the System's case law through systematic and gross human rights violations from that era, such as forced disappearance and extrajudicial executions.

In comparison to its European and African counterparts, distinguishing features include a unique system of reparations, intensive use of the IACtHR's advisory function and remarkable case law with regard to specific topics, such as indigenous communities, forced disappearance, amnesty laws or environmental rights. One of the main challenges of the Inter-American System is, besides continuous financial constraints, to find an adequate position in the balancing act between progressive human rights protection on the one hand and member State protest, which can go as far as turning away from the system itself.

I. American Declaration of the Rights and Duties of Man
The American Declaration of the Rights and Duties of Man (hereinafter "American Declaration" or "Declaration") was signed on 2 May 1948. Following natural law theory, the American Declaration emphasizes that "the essential rights of [a hu]man are not derived from the fact that he[*she] is a national of a certain state, but are based upon attributes of his[*her] human personality." Besides traditional civil and political rights, it also comprises economic, social and cultural rights which, for the most part, were at that time not yet part of the signatory States' national legal systems. While the Declaration is not constructed as a treaty and by its nature not legally binding, it has both been considered as a means of interpretation regarding the ACHR and the OAS Charter and even as "a source of international obligations for the Member States of the OAS." In this sense, the American Declaration has served as a yardstick in cases before the IACHR regarding those American countries that have not ratified the ACHR.

II. American Convention on Human Rights
The American Convention on Human Rights (ACHR), also called the "Pact of San José", was adopted during the Inter-American Specialized Conference on Human Rights, which took place in 1969 in San José, Costa Rica. Pursuant to Art. 74(2), the ACHR entered into force in 1978. Currently, 24 States have ratified the ACHR. In 1998, Trinidad and Tobago denounced the Convention. Venezuela, which had also presented an instrument of denunciation in 2012, decided to re-ratify the Convention in 2019. Although the ACHR is, according to Art. 74(1), open to all OAS Member States for signature and ratification, the United States of America, Canada and several other English-speaking countries have not ratified the Convention.

The ACHR can be considered the legal centrepiece of the Inter-American Human Rights System. It is divided into three parts, from which the first enshrines fundamental human rights and corresponding State obligations (Art. 1-32), the second establishes the means of protection (Art. 33-73) and the third consists of general and transitory provisions (Art. 74-82). The main focus of the ACHR lies on the protection of traditional civil and political rights, such as the right to life (Art. 4), the right to humane treatment (Art. 5), the right to personal liberty (Art. 7), the right to a fair trial (Art. 8), freedom of thought and expression (Art. 13) or the right to judicial protection (Art. 25). However, Art. 26 provides for the progressive and full realization of the rights 'implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States.'

Besides the rights and freedoms expressly codified in the ACHR, other rights have been read into the Convention through progressive interpretation. Particularly worth mentioning is the right to (know) the truth, whose emergence is related to the systematic practice of forced disappearance in situations of civil war or dictatorship that have for long periods dominated large parts of the Inter-American hemisphere. Its foundation was already laid in the IACtHR's first case, Velásquez Rodríguez Vs. Honduras. The right to know the truth is based on judicial guarantees anchored in Art. 8 and 25 of the Convention and requires the Member States to ensure, within a reasonable time, "the right of the victim or his or her next of kin to learn the truth about what happened and for those responsible for being punished."

Although second-generation rights had been condensed to a single provision, recently Art. 26 ACHR has been used as a door-opener to import economic, social, cultural and environmental rights into the scope of the Convention, including the rights to job security, health, a healthy environment, adequate food, water and take part in cultural life. This progressive approach taken by the IACtHR has been criticized See particularly the critique coming from within the Court itself: IACtHR, Case of Suárez Peralta Vs. Ecuador (Preliminary Objections, Merits, Reparations and Costs), Judgment of 21 May 2013, Serie C No. 261, separate opinion of judge Alberto Pérez Pérez; IACtHR, Case of Gonzales Lluy et al. Vs. Ecuador (Preliminary Objections, Merits, Reparations and Costs), Judgment, 1 September 2015, Series C No. 298, concurring opinion of judge Humberto Antonio Sierra Porto and concurring opinion of judge Alberto Pérez Pérez; IACtHR, Case of Dismissed Employees of Petroperú et al. Vs. Peru (Preliminary Objections, Merits, Reparations and Costs), Judgment, 23 November 2017, Series C No. 344, partially dissenting opinion of judge Humberto Antonio Sierra Porto; IACtHR, Case of Lagos del Campo Vs. Peru (Preliminary Objections, Merits, Reparations and Costs) Judgment, 31 August 2017, Series C No. 340, partially dissenting opinion of judge Eduardo Vio Grossi; IACtHR, Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) Vs. Argentina (Merits, Reparations and Costs), Judgment, 6 February 2020, Series C No. 400, partially dissenting opinion of Humberto Antonie Sierra Porto. See also Oswaldo R. Ruiz-Chiriboga, 'The American Convention and the Protocol of San Salvador: Two Intertwined Treaties – Non-Enforceability of Economic, Social and Cultural Rights in the Inter-American System' (2013) 31 (2) Netherlands Quarterly of Human Rights 159; James L. Cavallaro and Emily J. Schaffer, 'Less as More: Rethinking Supernational Litigation of Economic and Social Rights in the Americas' (2004) 56 Hastings Law Journal 267; James L. Cavallaro and Emily J. Schaffer, 'Rejoinder: Justice before Justiciability: Inter-American Litigation and Social Change' (2006) 39 NYU Journal of International Law and Politics 365. See also Juana María Ibáñez Rivas, 'La justiciabilidad directa de los derechos económicos, sociales, culturales y ambientales: Génesis de la innovadora jurisprudencia interamericana' in Mariela Morales Antoniazzi, Liliana Roncoli y Laura Clérico (eds), Interamericanización de los DESCA – El Caso Cuscul Pivaral de la Corte IDH (Mexico 2020) 67, particualrly 92; Eleanor Benz & Verena Kahl, 'El caso Lhaka Honhat: la extensión de la justiciabilidad directa de los DESCA y la esperanza incumplida de la concreción del derecho a un medioambiente sano' in Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi y Rogelio Flores Pantoja (eds.), El caso Lhaka Honhat vs. Argentina y las tendencias de su interamericanización (México 2021) 237. as much as it has been celebrated. See, inter alia, Óscar Parra Vera, 'La Justiciabilidad de los derechos económicos, sociales y culturales en el Sistema Interamericano a la luz del Art. 26 de la Convención Americana: El sentido y la promesa del caso Lagos del Campo' in Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi y Rogelio Flores Pantoja (eds), Inclusión, Ius Commune y Justiciabilidad de los DESCA en la Jurisprudencia Interamericana – El Caso Lagos del Campo y los nuevos desafíos, (Mexico 2018) 181; Jorge Calderón Gamboa, 'La puerta de la justiciabilidad de los derechos económicos, sociales, culturales y ambientales en el Sistema Interamericano: relevancia de la sentencia Lagos del Campo' in Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi y Rogelio Flores Pantoja (eds.), Inclusión, Ius Commune y Justiciabilidad de los DESCA en la Jurisprudencia Interamericana – El Caso Lagos del Campo y los nuevos desafíos, (Mexico 2018) 333; Angel Cabrera, Daniel Cerqueira and Salvador Herencia, 'Comentarios a la sentencia de la Corte Interamericana sobre el Caso Lhaka Honhat Vs. Argentina' (Justicia en las Américas, 30 April 2020) ; Tina Downsend and Maria Antonia Tigre, 'Lhaka Honhat Association Vs. Argentina: the human right to environment in the Inter-American Court' (The Global Network for Human Rights and the Environment, 10 April 2020) ; Lara Dominguez, 'The Inter-American Court of Human Rights Issues Landmark Judgment in Indigenous Rights Case' (Minority Rights Group International, 16 April 2020) . See also Tala Melish who already in 2006 argued for the direct justiciability of economic, social and cultural rights: Tala Melish, 'Rethinking the “Less as More” Thesis: Supranational Litigation of Economic, Social, and Cultural Rights in the Americas' (2006) 39 NYU Journal of International Law and Politics 220.

III. Other relevant Instruments
The diversification of international human rights law in the decades following the Universal Declaration of Human Rights has equally taken place in the context of the Inter-American Human Rights System connecting to the historical process of human rights codification in different subsequent agreements, which is to a certain extent - with the particular exception of the African Human Rights System - reflected in the concept of human rights generations. Following this narrative, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, named 'Protocol of San Salvador' was adopted in November 1988 and entered into force only eleven years later in 1999. Similarly, human rights expansion in international and regional treaty law was directed towards groups that suffer from structural discrimination or generally require specific protection, such as women, BIPoC, persons with disabilities or children. Besides a general agreement on non-discrimination, the Inter-American Convention against all Forms of Discrimination and Intolerance, several other instruments were adopted with regard to specific groups. These include, inter alia, the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, also called "Convention of Belém do Pará", the Inter-American Convention on International Traffic in Minors or the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities. Taking into account the presence of many indigenous communities in the region, the OAS General Assembly has also adopted the American Declaration on the Rights of Indigenous Peoples. While the rights of LGBTI (or QUILTBAG+) persons have in terms of separate legal instruments only be addressed in the Draft Resolution on Human Rights, Sexual Orientation, and Gender Identity and Expression, specific emphasis has to be put on the evolution of the IACtHR's jurisprudence on the matter in its Advisory Opinion No. 24 on gender identity, equality and non-discrimination with regard to same-sex couples.

I. Inter-American Court of Human Rights
The IACtHR was created as a permanent and autonomous organ of the OAS by the ACHR in 1969. As the Convention did not enter into force until 1978, it took a decade for the Court to make it from paper to an actual operating institution. In 1979, the IACtHR's first judges were elected  and the Court was officially installed in its headquarters in San José, Costa Rica.

1. Composition
According to Art. 52(1) ACHR, the IACtHR is composed of seven judges which have to be OAS Member State nationals and jurists of the highest moral authority and of recognized competence in the field of human rights. They are elected by the OAS General Assembly for a term of six years with the possibility of a single re-election (Art. 54(1) ACHR). Since the last election in November 2021, for the first time in the history of the IACtHR there have been three women among the sitting judges.

2. Jurisdiction and Functions
According to Art. 1 of its Statute, the IACtHR is an "autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights." Art. 2 of the Statute describes the functions of the Court as twofold:

First, in the realm of its judiciary or contentious function which is governed by Articles 61 to 63 of the ACHR, the Court has the competence to hear and rule on cases submitted by the IACHR or a State Party to the Convention (Art. 61(1) ACHR), provided that the State, which is party to the case, has recognized the Court's jurisdiction according to Art. 62(3) ACHR and that the procedure before the Commission enshrined in Art. 48 to 50 ACHR has been exhausted (Art. 61(2) ACHR). For cases to reach the IACtHR States must have recognized the jurisdiction of the Court pursuant to Art. 62(1) ACHR. Furthermore, pursuant to Art. 63(2) ACHR, the Court can adopt provisional measures in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons. According to Art. 67 and 68(1) of the Convention, States must undertake to comply with the judgments of those cases to which they are parties. Thereupon, both the Court and the Commission have developed an innovative network of institutions and procedures to supervise compliance with corresponding decisions. As regards the IACtHR, mediums of monitoring include the request for information, monitoring hearings, on-site visits and issuing orders on monitoring compliance. Furthermore, the Court has also used informal meetings with State agents or delegations and the involvement of domestic institutions and organs for monitoring purposes. In this sense, unlike its regional counterparts, the IACtHR itself monitors the compliance with its judgments and provisional measures. The procedure for this monitoring is laid down in Art. 69 of the Court's Rules of Procedure.

Second, Art. 64 ACHR provides for an advisory function which allows a) OAS Member States and organs listed in Chapter X of the OAS Charter, including the IACHR, to consult the Court with regard to the interpretation of the ACHR or other treaties concerning the protection of human rights in the American States (Art. 64(1) ACHR), and b) OAS Member States to request an advisory opinion with regard to the compatibility of internal norms with the Convention among others (Art. 64(2) ACHR). Due to a lack of contentious cases during its first years of operation, the IACtHR built its jurisprudence by relying heavily on its responses to requests for advisory opinions. Since then, the Court has regularly made use of this function to - often progressively - interpret the provisions of the American Convention and determine general legal standards that have been used and built upon in following contentious cases.

3. Emblematic decisions
While each of the more than 500 contentious cases and advisory opinions has its individual characteristics and significance, at least some of the topics and corresponding decisions should be highlighted, which reflect main struggles and achievements and/or new jurisprudential developments in the human rights context of the region and beyond, some of which have already been highlighted above, e.g. concerning forced disappearance or the rights of persons of the QUILTBAG+ community. As regards the aforementioned development of DESCA in the sphere of environmental protection, the intensive greening of the rights to life and personal integrity (Arts 4 and 5 ACHR) by means of principles originally stemming from international environmental law in the realm of Advisory Opinion No. 23 and the following Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina, where the Court for the first time found a violation of the autonomous right to a healthy environment, should not go without mentioning. The Court has further contributed outstanding standards regarding the rights of indigenous communities, particularly over their ancestral lands and natural resources, and corresponding State obligations, such as the creation of an effective mecanism for the delimitation, demarcation and titling of the ancestral territories or the duty to consult with the indigenous community and, if applicable, obtain its free, prior and informed consent in the case of projects (potentially) affecting their ancestral lands. Emblematic cases include, inter alia, Case of the Yakye Axa Indigenous Community v. Paraguay, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, [https://www.corteidh.or.cr/docs/casos/articulos/seriec_172_ing.pdf Case of the Saramaka People. v. Suriname], Case of Kichwa Indigenous People of Sarayaku v. Ecuador and [https://www.corteidh.or.cr/docs/casos/articulos/seriec_214_ing.pdf Case of the Xákmok Kásek Indigenous Community. v. Paraguay].

In light of the region's historical experiences with dictatorships and violent conflicts, the IACtHR's jurisprudence on amnesty laws should also be referenced here. In its landmark decision in the Case of Barrios Altos v. Peru the IACtHR held for the first time that self-amnesty laws on serious human rights violations were manifestly incompatible with the American Convention and therefore lacked legal effect, a case that was followed by further important decisions, such as, Case of Almonacid Arellano et al. v. Chile, Case of Gomes Lund et al. ("Guerrilha do Araguaia") v. Brazil and Case Gelman v. Uruguay.

4. Reparations
The great variety of reparatory measures ordered by the IACtHR can be considered as a distinguishing feature of its jurisprudence. In this sense, the Court has understood Art. 63(1) ACHR, which inter alia stipulates that it 'shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party', conceding it the competence to chose between a broad variety of remedies to address the particular harm occurred. Since 2007, remedial measures ordered by the IACtHR are twofold in terms of categories: monetary compensation for pecuniary and non-pecuniary damage on the one side and measures of satisfaction and guarantees of non-repetition on the other side. Pecuniary damage refers to 'the loss or detriment to the income of the victims, the expenses incurred due to the facts and the pecuniary consequences that are causally linked to the facts of the case', while non-pecuniary damage involves 'injurious effects of the facts of the case that are not financial or patrimonial in nature', including the 'suffering and affliction caused to the direct victims and their relatives, detriment to the persons’ very significant values, and non-pecuniary alterations to the conditions of life of the victim or his family.'

For an integral reparation to the victims, the non-pecuniary damage can be compensated through i) the payment of a financial amount or the delivery of goods of significant value to be determined by reasonable application of legal descretion and fairness, and/or through ii) acts or civil works of a public nature (or with corresponding public impact) that serve 'the recovery of the victims' memory, acknowledgement of their dignity, consolation of their next of kin, or dissemination of a message of official disapproval of the respective human rights violations and of commitment to efforts to ensure that they do not happen again.' In this sense, the Court has been particularly innovative in tailoring remedial measures to the specific case with regard to the second category, thereby going beyond pecuniary compensation and also adhering to the goal of full restitution (restitutio in integrum). Measures of satisfaction and guarantess of non-repetition that have been ordered directed to individual victims, communities, and society as a whole, include, inter alia, the nullifaction of criminal convictions, reinstatement of employment, medical and/or psychological treatment for the victims/their next of kin, the devolution of the victims' body to their relatives, granting of scholarships, the investigation, prosecution and punishment of human rights violations, official or public acts of apology and recognition of responsibility, publication of parts of the judgment, measures to commemorate the victims and/or the events, domestic legal reform to conform with Inter-American human rights standards as well as capacity building, particularly of State agents and military forces.

II. Inter-American Commission of Human Rights
The Inter-American Commission is a quasi-judicial organ of the Organization of the American States, created for the supervision and defense of human rights and to serve as consultative organ of the Organization  In the “Viviana Gallardo” case, the former Judge of the Inter-American Court, Piza Escalante pointed out in his reasoned opinion that the Inter-American Commission never has the status of a substantial party, plaintiff or defendant, but always that of a sui generis party, purely procedural, auxiliary to justice, in the manner of a "public ministry" of the inter-American system for the protection of human rights.

The Inter-American Commission fulfils its function of promoting and protecting human rights by studying⁣ individual petitions, but also through political and diplomatic tools, documenting and denouncing publicly, those patterns of human rights violations even in cases that are not pending before her.

Both the Commission and the Court have seven members (commissioners and judges), who must have high moral authority and a recognized understanding of human rights law, and in the case of Court judges, they must also meet the conditions required for the exercise of the highest judicial functions in accordance with the law of the country of which they are nationals or of the State that proposes them as candidates.

This function leads to many reports that are publicly accessible. Several types of reports are produced by the Commission, country reports; reports where the results of the in loco visit (on-site visit) for OAS states are condensed -Cf. art. 39 and 53 of the Regulations-;thematic reports on specific topics like  Rights of LGBTI Persons, Violence and Discrimination against Women and Girls, corruption, and human rights, Public Policy with a Human Rights Approach, Equality and Non-discrimination; annuals report, which includes data on the processing of petitions, the activities carried out in relation to the Inter-American Court and other human rights bodies.

The Commission has eleven rapporteurships on indigenous peoples, women, freedom of expression, children, human rights defenders and justice operators, persons deprived of liberty, LGBTI persons, migrants, rights of Afro-descendants and against racial discrimination, older persons, economic, social, cultural, and environmental rights (ESCER) that prepare specialized recommendations addressed to OAS member states and advise the Commission in the processing of petitions.

The Regional Protection System allows individual petitions (art. 44 ACHR) and interstate communications (ACHR art. 45), except for the difference of the claimant, the following procedure is identical.

The jurisdictional procedure before the Inter-American Commission is divided into four procedural stages: initial processing, admissibility, merits, and referral of the case to the Court. The Commission could be understood as a gatekeeper for the cases before they are presented to the Court.

Precautionary measures (under the Inter-American Commission) and provisional measures (within the Inter-American Court's jurisdiction) are also a function of the system's bodies. Their origins and legal implications diverge. The precautionary measures of the Commission are an evolutive interpretation of its own Rules (art. 25), and their bindingness is contested. In contrast, the provisional measures of the Court are derived from the Convention (art. 63.2 ACHR) and are obligatory as treaty provisions. These measures are implemented when a serious situation—or an extreme one in the case of the Inter-American Court—is acknowledged in the proceedings and when quick action is required to prevent irreparable harm to the victims (see article 63.2 ACHR). The Inter-American Court has said in its decisions that the goal of the measures is to protect the rights of the parties to the dispute and make sure that their activities throughout the litigation do not affect the outcome of the verdict on the merits.

During the initial processing the Executive Secretariat will receive and process the petitions that are presented to it and those that pass said initial review are notified to the State (arts. 26, 27, 28 and 29.1 IACHR regulations), then, the "admissibility" stage will culminate with a report where the Commission verifies whether it is competent ratione temporis, materiae, loci and personae and if the petition meets the admissibility requirements conventionally required, specially referred to subsidiarity issues  (art. 44 et seq. ACHR and 30 and 36.1 IACHR regulations).

An issue of special relevance in the proceedings before the Inter-American Commission is the possibility of always reaching a friendly settlement agreement that puts an end to the process.

In the Merits stage, if the Commission determines that there is state responsibility for an international wrongful act, it will issue a preliminary report that will be notified to the State (ACHR art. 50), if within the time period conferred, the State does not comply with the recommendations made by the Commission, it will decide between issuing the report on the merits (ACHR art. 51) and publishing it, or referring the case to the Inter-American Court.

D. Monitoring compliance with judgments
1. Highlights of the IACHR activity and effectiveness of its judgments.

Compliance with judgments of the Inter-American Court is still relative since, to date, out of 318 judgments, only 35 have been filed for total compliance. The progress of compliance with the measures ordered by the Inter-American Court faces two types of problems that can coexist: a. the normative issue – due to lack of legal regulation within States, and b. the structural issue – where institutional obstacles arise in the hands of those responsible for compliance with the measure in the domestic sphere.

These issues at the domestic level include the ignorance of international law, the lack of prior debate on how to comply with the specific measure of reparation between State agencies, or the political reluctance to comply with their judgments. This generates a notable gap between decisions and their execution.

2. Judgments on Supervision

The part of a judgment that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgments against the state (art. 68.2 ACHR). The supervision of compliance with what is ordered in the judgment falls on the head of the Inter-American Court, which will deploy various actions to accompany this process, ranging from requests for reports to the parties, hearings, recommendations for the induction of compliance to the complaint of the cases of non-compliance with the Organization of American States.

The Inter-American Court issues specific judgments on supervision where it condenses the information collected and progress in compliance, which is then described and compiled in its annual report. Pursuant to Article 65 of the ACHR, the Inter-American Court must submit a report each year to the General Assembly of the Organization of American States in which it indicates – among other things – in a special way the cases in which a State has not complied. In this regard, in the act of reporting on the breach by a State of the merits sentence, a moral and political sanction is materialized. Likewise, this practice has been the subject of various reproaches, mainly due to the absence of debate within the OAS on issues relating to the non-compliance by some of its member states of the principle pacta sunt servanda and the reparations ordered in the judgments of the Court.

E. The doctrine of "Conventionality Control"
The concept of Conventionality Control is one of the most effective efforts of the Inter-American Court of Human Rights to increase the level of compliance with the American Convention.

Conventionality Control is a guarantee designed to obtain the harmonious application of international and domestic law. This, according to the jurisprudence of the Inter-American Court includes all the organs of the State, at all levels, within the framework of their competences. It encompasses both the ACHR as well as other treaties such as the Inter-American Convention on Forced Disappearance of Persons. It also includes the decisions of the Inter-American Court both in its contentious and advisory jurisdiction and allows the repeal of internal regulations incompatible with the ACHR, but at the same time it functions as a parameter to eradicate practices contrary to the values ​​that inspired the Convention.

The concept of Conventionality Control has been developed and expanded in key judgments in the history of the Inter-American Court. It was first developed in the reasoned concurring opinion of Judge Sergio García-Ramírez in the merits judgment for the “[https://www.corteidh.or.cr/docs/casos/articulos/seriec_101_ing.pdf Mack Chang v. Guatemala]” case: "“For the effects  of the  American Convention and of the exercise of the contentious jurisdiction of the Inter-American Court, the State is considered integrally, as a whole. Accordingly, responsibility is global, it concerns the State as a whole and cannot be subject to the division of authority established  n domestic law. At the international level, it is not possible to divide the  State, to bind before the Court only one or some of its organs, to grant them representation of the State in the proceeding – without this representation affecting the whole State – and excluding other organs from this treaty regime of responsibility, leaving their actions outside the “treaty  control” (control de convencionalidad) that involves the jurisdiction of the international  court”"Two years later, in the “Almonacid Arellano” case, The Court, for the first time, used the notion in the reasoning of one of its decisions:"“The Court is aware that domestic judges and  courts are bound  to respect the rule of  law, and therefore,  they are bound to apply the provisions  in force within  the legal system. But when a State has ratified  an international  treaty such  as  the American Convention,  its judges, as part  of the State, are also  bound by such Convention. This forces  them to see that all the effects of  the provisions embodied in the  Convention are not adversely affected  by the enforcement of laws  which  are contrary to its  purpose and that have  not  had any legal effects since  their inception. In other words, the Judiciary must exercise a sort  of “conventionality  control” between  the domestic legal provisions  which are applied to specific cases and the American Convention on  Human Rights. To perform this  task, the Judiciary has to take into account  not only  the treaty,  but  also the interpretation thereof made by  the Inter-American  Court, which  is  the ultimate  interpreter of  the American Convention” (p. 124)."From the paragraphs cited above, it has been understood that the Inter-American Court recognizes two types of conventionality control: The first type, known as “internationally performed Conventionality control” (control de convencionalidad en sede internacional) is carried out by the Judges of the Inter-American Court during proceedings under the jurisdiction of the System, and implies the confrontation of the state conduct and the contents of the American Convention, triggering when the Inter-American Court, as part of its decisions, orders the suspension, revision or withdrawal or domestic norms of the State, including not only bills, but also administrative acts, case-law, administrative or judicial orders and practices that are in violation of the American Convention on Human Rights. The scope of this first kind of conventionality control, was clarified in the separate concurring opinion of Judge Sergio Garcia-Ramirez, in the merits judgment of the “Tibi” case:"“In  a  certain sense,  the  task of  the  Court is  similar  to that  of  the constitutional courts.  The  latter examine  the  challenged acts  –decisions  with a  general  scope- in  light of  the legal  standards,  principles, and  values  of  the  basic laws of the State.  The  Inter-American  Court, in turn,  analyzes  the acts  that  are brought  before  it in  connection  with the  legal standards,  principles, and  values  of  the  treaties on  which  it bases  its  adjudicatory jurisdiction.   In other words, if constitutional courts oversee “constitutionality,” the international human rights  court decides  on  the “conventionality”  of  those acts. By controlling constitutionality, the domestic bodies seek to ensure that activities of the public authorities –and, perhaps, of other social agents-  are in accordance with the order that is inherent to the  Rule of  Law  in  a  democratic society. The Inter-American Court, in turn,  seeks  to ensure  that  this activity  is  in accordance  with  the international  order  set forth in  the  Convention that  founded  the inter-American  jurisdiction  and was  accepted  by the States  Parties  exercising their  sovereignty” (p.3)"The second type, known as national conventionality control, implies that every organ or agent of the State is capable to perform a control of conventionality to the extent of is competences, and the purpose of this control is that any State authorities must not apply a norm contrary to the Convention, and also, that they must interpret and apply all domestic laws in a way that complies with the Convention, its protocols and the Inter-American case-law, and to discard those "interpretations" that are contrary or incompatible with any conventional parameter.

This national conventionality control, (also referred as “diffused control” (control difuso) in the sense that the competence of controlling the acts of the State vis-à-vis the Convention is diffused, disseminated in all the organs and agents of the State), according to the jurisprudence of the Inter-American Court, includes all organs of the State, at all territorial, regional or national levels, within the framework of their competences; It encompasses both the ACHR as well as other treaties such as the Inter-American Convention on Forced Disappearance of Persons; It also includes the resolutions of the Inter-American Court both in its contentious and advisory jurisdiction and allows the repeal of internal regulations incompatible with the ACHR, but at the same time it functions as a parameter to eradicate practices contrary to the values ​​that inspired the Convention.

National conventionality control encourages State’s agents to apply international law, disregard domestic laws that collides with the Inter-American Convention and to go as far their national competences can take them, in order to solve a collision between national law and the Convention, for example, a local police officer could decide not to apply a regulation that the finds contrary to the Convention, but only the national congress, or a national court might have the competence to derogate such law, all the State’s organs and agents are responsible for fulfilling their competence. In the “Urrutia Laubraux” case, the Court stated: “the control of conventionality has been conceived as a mechanism to apply international law, in this case international human rights law, and specifically the American Convention and its sources, including the case law of this Court.” (p.93)

Further Readings

 * Armin von Bogdandy, Eduardo Ferrer Mac-Gregor, Mariela Morales Antoniazzi, Flávia Piovesan and Ximena Soley, Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (Oxford University Press 2017).
 * James L. Cavallaro, Claret Vargas, Clara Sandoval, Bernard Duhaime, Doctrine, Practice, and Advocacy in the Inter-American Human Rights System (Oxford University Press 2019).
 * Yves Haeck, Oswaldo Ruiz-Chiriboga and Clara Burbano-Herrera, The Inter-American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015).
 * Ludovic Hennebel and Hélène Tigroudja, The American Convention on Human Rights: A Commentary (Oxford University Press 2022).
 * Jo M. Pasqualucci, The practice and procedure of the inter-american court of human rights (Cambridge University Press, 2nd ed 2013).
 * Ximena Soley and Silvia Steininger, 'Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights' (2018) 14 International Journal of Law in Context 237.

Further Resources

 * Anual reports with detailed information and statistics on the Court's jurisprudence are published in four different languages, available at: https://www.corteidh.or.cr/informes_anuales.cfm?lang=en.
 * The IACtHR regularly publishes Journals of Jurisprudence (Cuadernillos de Jurisprudencia) concerning specific topics and member States, available in Spanish only at: https://www.corteidh.or.cr/publicaciones.cfm?lang=en.
 * Interactive Map of member States with updated information on pending cases, cases with judgment and provisional measures, available at: https://www.corteidh.or.cr/mapa_casos_pais.cfm?lang=en.
 * The movie 'Helena from Sarayaku' (2022) directed by Eriberto Gualinga follows Helena and the indigenous community of the Kichwa people of Sarayaku in their struggle to protect their ancestral lands and the 'living forest'.