1  In Latin America, conventionality control is a judge-made creation. It was announced in 2003 and 2004 through important separate opinions by Sergio García Ramírez, judge and President of the Inter-American Court of Human Rights (IACtHR) (‘San José Court’); it appeared formally in 2006 in the Almonacid Arellano case—where the Court ‘[caught] up with the past’, borrowing the words of Claudia Martin (2007, 777–92; Almonacid Arellano v Chile, 2006). It quickly became a popular tool that was applied frequently.

2  The IACtHR’s control of conventionality doctrine asserts that there is an international obligation on public authorities in all state parties to the American Convention on Human Rights (1969) (‘ACHR’, ‘American Convention’, or ‘Convention’) to interpret any domestic legal norm (eg constitution, law, decree, court judgment) in a manner compatible with the ACHR, as interpreted by the IACtHR. In others words, the San José Court sought to transform domestic judges and ‘any public authority’into allies empowering them to comply with the interpretation of the ACHR and, even the entire Inter-American human rights corpus iuris. The impact of conventionality control within domestic legal orders as well as in the academic world was and remains very strong. Attitudes towards the launch of this new kind of relationship between national authorities and the IACtHR range from full acceptance, to reservations, through to strong opposition.

3  Once the whys and wherefores of conventionality control are laid out (see sec B below), this analysis aims to decipher the very diverse impact within domestic legal orders as well as in legal academic discourse (see sec C).

4  The history of the judicial creation of conventionality control in Latin America can be presented through an artistic metaphor: a waltz in three-quarter time; preparation (by foreshadowing it in separate opinions), revelation (by mentioning it in a judgment) and consolidation (by detailing and repeating it in further cases). These are the three tempos that allowed conventionality control to settle into the legal landscape of Latin America. Having prepared the ground, the Court was subsequently able to build, case by case, a genuine ‘theory’ of conventionality control.

5  The first tempo was preparation of the legal and political ground for the idea of conventionality control through separate concurring opinions. As early as 2003 in the Myrna Mak Chang case, Sergio García Ramírez—who was not yet President of the Court—took a voto concurrente (in others words, a separate opinion (Separate opinions; Separate opinion: Inter-American Court of Human Rights (IACtHR))) in which he used the expression ‘treaty control’ for the first time; differences of terminology should be noted. Whilst the Spanish version mentions expressis verbis the expression ‘control de convencionalidad’, the English one refers to ‘treaty control, (Myrna Mack Chang v Guatemala, Reparations and Costs, 2003, Concurring Opinion of Judge García Ramírez, para 27). It was used in a classical sense: the Mexican judge was recalling a well-established rule under international law; it is the State as a whole that is internationally responsible for its organs’ actions. A year later—after being elected President of the Court—he continued, laying out more original thinking in the Tibi case. He bluntly compared the Inter-American Court to a constitutional court and paved the way for what was to become one aspect of conventionality control: ‘In other words, if constitutional courts oversee “constitutionality”, the international human rights court decides on the ‘conventionality’ of those acts’ (Tibi v Ecuador, 2004, Separate Concurring Opinion of Judge García Ramírez, para 3). He confirmed this view in 2006 in López Álvarez (López Álvarez v Honduras, 2006, Separate Opinion, para 30) and Vargas Areco cases (Vargas Areco v Paraguay, 2006, Separate Opinion, para 6). He explained the contours of the Inter-American Court’s remit in terms of conventionality control of domestic facts brought before it. In the López Álvarez case, he pointed out the way to exercise the conventionality control by the Court, taking into account the ‘context’ of the case. In the Vargas Areco case, he explained the Court’s oficio, which differs from the ‘Fourth instance’ theory.

6  The second tempo was revelation, in other words, the first appearance of the theory of conventionality control in a judgment of the Inter-American Court. On 26 September 2006 in the case of Almonacid Arellano the judges identified with Sergio García Ramírez’s principle. The case dealt with a major—perhaps existential—question in many Latin American societies. It was about whether, when considering conflicting concepts of justice and forgetfulness, the latter could prevail in the name of national peace and reconciliation. This Chilean case is part of a judicial saga which began with the case of Barrios Altos in 2001 (Barrios Altos v Peru, 2001), continued with the La Cantuta case (La Cantuta v Peru, 2006) and granted the Court an opportunity to review the conventionality of amnesty laws (Amnesties) relating to serious human rights violations (Binder, 2011, 1204–40; Burgorgue-Larsen, 2012, 3–42; Citroni, 2015, 379–401; Martin, 2007, 777–92; Parra Vera, 2012, 5–51).

7  Paragraph 124 of the judgment shows how the conventionality control theory emerged:

8  Whereas President Sergio García Ramírez had used the expression to characterize the Inter-American Court’s quasi-judicial role, the judges in the Almonacid Arellano case gave it another meaning. The Inter-American Court granted domestic judges a new role by directing that ordinary courts should exercise conventionality control. It implied that domestic judges can resolve a conflict between domestic laws and a Convention provision and encouraged them to base their rulings not only on the provisions of the Convention but also in their interpretation by the Inter-American Court.

9  The third tempo was consolidation of conventionality control into a ‘theory’. Two techniques were combined to reach this goal. The first and most obvious was that the Court took every opportunity to emphasize that conventionality control was part of national judges’ responsibility, its theoretical basis and raison d’être. The second was that judges delivered separate opinions describing the contours of this new power for national judges and presenting it from multiple angles: theoretical, practical, doctrinal and judicial. Therefore synthesis of separate opinions and judgments gives as precise a mapping of the new power as possible. Separate opinions, even concurring ones, are not part of the ratio decidendi of a Court ruling. Nevertheless they are good analytical tools to assess a judge’s influence on the scope and content of a norm or on a concept’s theoretical construction. In this respect, 2006 was a landmark year not only for preparation (López Álvarez v Honduras, 2006; Vargas Areco v Paraguay) and revelation (Almonacid Arellano v Chile) but also for consolidation. The case of the Dismissed Congressional Employees (Dismissed Congressional Employees v Peru, 2006) brought the first consolidation regarding national control holders.

10  Paragraph 128 is key:

11  The Inter-American Court sent another clear message to domestic judges to help enlist them as allies by allowing them to question domestic norms’ conventionality (ex officio control). This reference—furtive but fundamental—to their sphere of competence and the corresponding procedural regulations is essential. The reader should understand that each judge will have to take into account the national legal system and circumstances (eg the international treaties’ position in the hierarchy of norms, the existence of a constitutionality control that is more or less concentrated, etc).

12  Consolidation of the detail of conventionality control in the leading case Dismissed Congressional Employees has been reinforced in many cases (La Cantuta v Peru, para 173; Boyce v Barbados, 2007, para 78; Heliodoro Portugal v Panama, 2008, para 180; Radilla Pacheco v Mexico, 2009, para 339; Manuel Cepeda Vargas v Colombia, 2010, para 307; Xákmok Kásek Indigenous Community v Paraguay, 2010, para 311; Cabrera García and Montiel Flores v Mexico, 2010, paras 225, 233; Fernández Ortega v Mexico, 2010, para 234; Gomes Lund [Guerrilha do Araguaia] v Brazil, 2010, para 106; Rosendo Cantú v Mexico, 2010, para 219; Gelman v Uruguay, 2011, paras 193, 239; Ibsen Cardenas v Bolivia, 2011, para 202; Vélez Loor v Panama, 2011, para 287; Chocrón Chocrón v Venezuela, 2011, para 164; López Mendoza v Venezuela, 2011, para 228; Fontevecchia and D’Amico v Argentina, 2011, para 93; Atala Riffo v Chile, 2012, paras 282, 283; Furlan v Argentina, 2012, para 303; El Mozote v El Salvador, 2012, para 318; Gudiel Álvarez (‘Diario Militar’) v Guatemala, 2012, para 330; Santo Domingo Massacre v Colombia, 2012, para 142), notably with regard to the level of control of judgments’ execution (Castañeda Gutman v Mexico, Order, 2013, para 23) and requests related to the extension of provisional measures (Raxcacó Reyes v Guatemala, Resolution, 2008, para 63). Moreover, at the stage of reparations, the Court has also ordered the setting up of important educational programs for military and police forces, members of the judiciary and civil servants who will have to implement conventionality control (Rochac Hernández v El Salvador, 2014, para 244).

13  We can speak of a’theory’ because all aspects of conventionality control have been justified, explained and clarified in case after case to help national authorities fulfill their obligations. The concept was not thrown into the judicial arena to remain misunderstood. The Inter-American Court has often played the role of educator by presenting the legal basis of conventionality control, its owners, material scope, raison d’être and last but not least, its methods of implementation.

14  The legal basis which legitimizes the judicial creation of conventionality control was set by the landmark ruling Almonacid Arellano (this requires a combined reading of several paragraphs. Almonacid Arellano v Chile, paras 115, 118, 121, 123, 124); it was more clearly presented two years later by the Heliodoro Portugal judgment (Heliodoro Portugal v Panama, paras 179–80). Article 2 ACHR—there is no equivalent provision in the European Convention—was utilized (Burgorgue-Larsen and Úbeda de Torres, 2011, ff 248–63). Since States have an obligation to adapt their domestic norms to conventional standards, domestic jurisdictions—as essential components of States’ legal orders—must ensure, within their sphere of competence, that adaptation complies with Inter-American justice according to the classic principle of effectiveness (‘effet utile’). In the Heliodoro Portugal case, the Court sets up expressis verbis this link between Article 2 of the Convention and conventionality control:

15  Regarding the owners of conventionality control, a series of rulings—Cabrera García and Montiel Flores, Gelman, López Mendoza, Atala Riffo and Gudiel Álvarez—contributed to their expansion: from ‘judiciary power’ stricto sensu, to ‘judges and organs related to the administration of justice’, the obligation to exercise this kind of control was finally extended to all types of public authority. The Court’s judicial policy left nothing to chance.

16  Whereas the leading case of Almonacid Arellano only mentioned the ‘Poder Judicial’—translated into English as ‘the Judiciary’—the important ruling Cabrera García and Montiel Flores of 2010 was more precise and referred to ‘los jueces y órganos vinculados a la administración de la justicia en todos los niveles’ who must exercise conventionality control ex officio (Cabrera García v Mexico, para 225). The expression is meaningful. An anomaly should be pointed out in the English version of the official text, which is at the very least surprising, if not worrying. The English—minimalist—version was drafted as follows: ‘The Judiciary, at all levels, must exercise ex officio a form of ‘conventionality control’. The specific formula ‘organs related to the administration of justice’ does not appear, whilst the use in the Spanish version of the vague expression ‘a form of’ was maintained in the English text. The reader may think this is too punctilious a criticism. However, it is telling if one considers that the Inter-American Court’s judges wanted—by providing this specific piece of detail expressis verbis (ie all organs related to the administration of justice)—to integrate all types of judges regardless of any formal link to judicial power (in order to include all Constitutional Courts or Constitutional Chambers [Salas constitucionales]), their position in the hierarchy (such as Supreme Courts), their specialization, etc [this translation anomaly was later corrected. The more precise expression is mentioned in Gudiel Álvarez]. Following its meticulous work to identify ‘organs related to the administration of justice’, the Court took advantage of the case of Gudiel Álvarez to include ‘Prosecutors’ (Gudiel Álvarez v Guatemala, para 330) and provide useful further details in the López Mendoza (para 228) and Atala Riffo cases. In both these politically and socially sensitive cases—at stake were the right to stand in regional elections in Venezuela and the prohibition of discrimination based on sexual orientation in Chile, respectively—the Inter-American Court stated the importance of adapting judicial and administrative interpretations as well as judicial guarantees to the principles established by its case law. The Court did not hesitate to target the jurisprudence of the highest judicial courts of both these countries.

17  The Gelman case contributed to expanding conventionality control quite spectacularly (Gelman v Uruguay, 2011, paras 145–50). The Court did so in the particular and crucial context of amnesty laws (Galela, 2015, 443–55; Kiriakou, 2015, 457–73). It took a huge step in expanding the obligation to exercise a conventionality control ex officio to ‘any public authority’ (para 239) and no longer only organs related to the administration of justice. The reason for such a major change lies in Uruguay’s specific place within the Latin-American landscape in terms of amnesty. It should be recalled that the Uruguayan Amnesty Law of 1986 received popular support on two occasions. In 1989 and 2009, citizens were consulted through various direct democratic means and expressed the desire not to amend the amnesty’s terms and scope. The second time was a few days after the Supreme Court of Justice in an historic decision ruled on 19 October 2009 in the case of Sabalsagaray Curutchet Blanca Stela that Articles 1, 3, and 5 of the 1986 Law were unconstitutional, based on Inter-American standards. In other words, the people challenged the Supreme Court, which had proved a perfect ‘ordinary conventional judge’. In this very sensitive context the Inter-American Court did not have the slightest qualm about affirming—in two simple paragraphs—that:

18  The material scope and raison d’être of conventionality control were announced in 2006 by Sergio García Ramírez in his separate opinion on the case of the Dismissed Congressional Employees. The then President of the Court took up his pen to clarify two fundamental points. Regarding the scope of conventionality control he clearly indicated that the Inter-American human rights ‘corpus juris’ as a whole should be taken into consideration, not just the ACHR (Dismissed Congressional Employees v Peru, Separate Opinion of Judge García Ramírez, para 2). As to its raison d’être, he considered that that new phase in Inter-American litigation proceedings—marked by the increasing use of conventionality control—was linked to the vital importance of making the mechanism’s subsidiarity effective so that it is perennial (Dismissed Congressional Employees v Peru, Separate Opinion of García Ramírez, para 8):

19  Such approaches were visionary as the Court’s jurisprudence later integrated them expressis verbis. Indeed, these two elements can be found in two rulings of November 2012.

20  First, the Gudiel Álvarez ruling put the whole Inter-American corpus juris at the centre of conventionality control, the condition being that the respondent State had ratified specific Inter-American Conventions (Gudiel Álvarez v Guatemala). What was initially a desire of the former President became jurisprudential reality in a case that brought to light the enforced disappearance of 26 people in the darkest years of the armed conflict that plagued Guatemala between 1962 and 1996:

21  Second, it is the Santo Domingo Massacre ruling which stated it in terms that left no room for misunderstanding (Santo Domingo Massacre v Colombia, para 142):

22  At that time, it was one of the rare cases that recalled so clearly a regional guarantee system’s raison d’être, in this case the Inter-American System. Only a few references can be found in previous cases (Las Palmeras v Colombia, 2001, para 33). Furthermore, what is certain is that it was the first time a ruling established a link between conventionality control exercised by national courts and the subsidiary guarantee implemented by the Inter-American Court and Commission (Inter-American Commission on Human Rights (IACommHR)). In recent case law, these references have been more frequent (eg, García Ibarra v Ecuador, 2015, para 103; Andrade Salmón v Bolivia, 2016, para 93).

23  In the same vein, in n°21 Advisory Opinion (Rights and Guarantees of Children, OC- n°21/14, paras 28, 30, 31), the Court ruled that State authorities must also consider advisory opinions when performing conventionality control, which is quite logical in connection with its raison d’être: the effectiveness of the Inter-American Human Rights System (‘IAHRS’). It is worth noting that the Court has insisted on this point, considering that its advisory function ‘constitutes a service that the Court is able to provide to all the members of the inter-American system, in order to contribute to compliance with their international commitments’ (paras 28, 30) (emphasis added). The link with the subsidiarity principle as the basis of conventionality control is done, even indirectly. Indeed, at the end of the day, what matters is that the effectiveness of the IAHRS subsidiarity principle—also called the principle of complementarity—is a way to trigger compliance of the Inter-American corpus iuris, recalling that the States are the first protectors of it. The Court goes further in n°22 Advisory Opinion considering the advisory mechanism’s function as a ‘preventive conventionality control’ (Entitlement of legal entities, OC- n°22/16, para 26).

24  Concrete procedural implementation methods of conventionality control were not presented in a ruling but rather in a concurring opinion: that of the Mexican judge Eduardo Ferrer Mac-Gregor who had been appointed an ad hoc judge by his government in the Cabrera Garcia and Montiel Flores case (Cabrera García v Mexico). He brilliantly took stock of all different aspects of conventionality control in Latin America. He establishes that it is simply theorization of conventionality control which is meant to guide any domestic judge on the continent. Additionally, his personal work shows that he has given this issue considerable thought. It is revealing that this separate opinion has already been reproduced in extenso as a genuine academic article in several journals (eg el Boletín Mexicano de Derecho comparado, 131, 2011, 917–67). It should be noted that Professor Ferrer Mac-Gregor is a renowned Mexican specialist in constitutional law and the director of the Revista Iberoamericana de Derecho Procesal Constitucional which has published constitutional analysis on the issue of conventionality control for several years.

25  He distinguishes between what he calls ‘concentrated’ conventionality control—which is carried out by the Inter-American Court as the natural interpreter of the ACHR—and ‘diffuse’ control which, for its part, must be exercised by all domestic judges as they are ‘ordinary conventional judges’ whenever a case where international law is applicable is brought before them. Judge Ferrer Mac-Gregor is fully aware of the challenges faced in implementing such an obligation given the constitutional mosaic on the continent and the variety of domestic courts’ competencies. That is why he maps out different possible options and presents a synthesis in his concurring opinion (para 41). Different degrees of control ‘intensity’ are mentioned. The first degree of intensity is characterized by the obligation to make a ‘compliant interpretation’ of national law that is in line with the whole Inter-American corpus juris as interpreted by the Inter-American Court. The idea is to interpret national law whilst considering the pro homine principle enshrined in Article 29 (b) of the Convention. If such an interpretation is impossible, conventionality control should be applied with greater intensity and implemented depending on judges’ options in each system. Two options are considered: firstly the national norm that is non-compliant in the concerned case should be discarded. The second and more radical option is to declare it invalid in the legal order with general erga omnes effect.

26  In 2013 and 2014, this time as an elected judge of the Court, he pedagogically explains how Inter-American standards should be taken into account in his concurring opinion to an Order of the Court on the monitoring of compliance with the Gelman judgment. Judge Ferrer Mac-Gregor shares his comprehensive vision (erga omnes effect) of the res interpretata authority of the Court’s judgments (Gelman v Uruguay, Monitoring Compliance with Judgement, Order of the Court, 2013, Separate Opinion). His creativity can also be found in his concurring opinion to the Liakat Ali Abut judgment (Liakat Ali Alibux v Suriname, 2014). He proposes a new interpretation of Article 25 ACHR: that this provision possesses a ‘normative integration’ dimension (para 73). Thus, the failure to implement Article 144 of the Constitution (the creation of a Constitutional Court) has constituted a violation of the Convention (Article 25) as it means there is not a simple and accessible remedy to protect fundamental rights. Therefore, Suriname was not able to implement conventionality control as designed by the Inter-American Court. This shows how important Eduardo Ferrer Mac-Gregor has become; he obviously is the ‘theoretician’ of conformity with the Convention and he defends and explains it in a very detailed manner.

27  One might think that this is the personal point of view of one of the Court’s judges which is non-binding for the Court as a whole. However, concurring opinions are meant to guide in fine domestic judges; they are meant to refine, explain and conceptualize domestic judges’ new role. That said, given the extraordinary constitutional mosaic in Latin America, it is certainly not about imposing a model of justice but establishing an obligation that needs to be implemented, regardless of the national judicial pattern. Paragraph 124 of the Liakat Ali Alibux judgment is very clear in that regard:

28  It is exactly what Judge Ferrer Mac-Gregor says in his concurring opinion when affirming in paragraph 108:

29  Since the recall of the Liakat Ali Alibux case, the expression ‘conventionality control’ has continued to appear in the IACtHR’s rulings (Norín Catrimán v Chile, 2014, para 464; Expelled Dominicans and Haitians v Dominican Republic, 2014, para 311; Rochac Hernández v El Salvador, para 213; Garifuna de Punta Piedra v Honduras, 2015, para 346; García Ibarra, para 106; Chinchilla Sandoval v Guatemala, 2016, para 274; Workers of Hacienda Brazil Verde v Brazil, 2016, para 408; Andrade Salmón v Bolivia, para 93), despite the existence of diverse reactions, sometimes very critical, from domestic judiciaries and/or from academia. Let us turn to examine the impact of conventionality control through Latin American countries.

30  The new structure of judges’ relationships implied by conventionality control caused a mixed reception within national legal orders (1). Concurrently with the judicial reactions, an exceptional doctrinal development emerges into very different positions from very enthusiastic to highly critical (2).

31  The judicial creation of the conventionality control ‘theory’ by the IACtHR appeared in extremely diverse cases in which various countries of the hemisphere and different themes were being discussed. Eighteen respondent States out of the twenty which have accepted the jurisdiction of the Court have been at the core of the IACtHR’s conventionality control strategy (Argentina, Barbados, Brazil, Bolivia, the Dominican Republic, Colombia, Chile, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Paraguay, Peru, Panama, Uruguay, Venezuela, and Suriname). As for of the cases concerned, they deal with amnesty laws (Almonacid Arellano, Gelman, Gomez Lund), the death penalty (Boyce), enforced disappearances (Heliodoro Portugal, Radilla Pacheco, Ibsen Cardenas, Gudiel Alvarez, Rochac Hernández), extrajudicial executions (Manuel Cepeda, Santo Domingo Massacre, García Ibarra), torture (Cabrera Garcia), demarcation of indigenous land (Xákmok Kásek), the rape of young indigenous women (Fernández Ortega, Rosendu Cantú), the detention and conviction of indigenous leaders (Norín Catrimán), undocumented migrants’ rights (Vélez Loor), the historical discrimination against poor people and slavery (Workers of Hacienda Brazil Verde), the right to stand for election (Lopez Mendoza, Castañeda Gutman), the right not to be discriminated against based on sexual orientation (Atala Riffo), the right to health for disabled persons (Chinchilla Sandoval), as well as issues related to the criminal legality principle and non-retroactivity of rules of procedure (Liakat Ali Alibux).

32  The implementation of conventionality control by domestic judges has been inconsistent. The motivations for accepting or rejecting conventionality control are varied: strictly legal (eg the position of international human rights law within the national constitution), but also judicial sociology (training and appointment methods of judges) and more generally political (the existence of ‘hostile’ governments to the Inter-American system). Beyond the strict issue of conventionality control, some scholars have tried to identify the patterns of acceptance of the Inter-American case law. Manuel Góngora Mera identifies three types of adherence to Inter-American case law: ‘criticism free’ adherence with unconditional implementation of Inter-American standards (as epitomized by the Supreme Court of Argentina); ‘systematic rejection’ based in general on arguments on sovereignty (Peru under Fujimori or Venezuela under Hugo Chavez and his successor); and ‘parallel convergence’ which consists of independently addressing extra-regional identical normative standards (for example the rights of indigenous people (Indigenous Peoples) integrated in many domestic courts, new constitutions in which indigenous issues were enshrined, international law (ILO Convention No 169) and Inter-American case law (which was itself inspired by national constitutional law and international law) (Góngora Mera, 2013, 312–27).

33  In spite of there being ‘compliant’ domestic judges—who exercised conventionality control even before it appeared in the Court’s case law or accepted and implemented it as soon as it arose despite heated debates– others are ‘defiant’ (a). Nevertheless, this classical divide is not entirely clear, as internal divisions within States can exist, either between different kinds of jurisdictions or over time (b).

34  Before the inception of conventionality control in 2006 by the IACtHR, the Supreme Court of Justice of Argentina (Espósito Miguel Ángel, Supreme Court of Argentina, 23 December 2004; Simon, Julió Hector and others, Supreme Court of Argentina, 14 June 2005; L Pittier, 2016, 311–45; A Santiago, 2017, 371–89) and its counterparts in Peru (Santiago Martin Rivas, Constitutional Court of Peru, 29 Nov 2005, Case No 4587-2004-AA/TC; JM Rivas, 2016, 621–766), had already complied fully with Inter-American standards regarding amnesty laws, implementing rulings as well as taking into account Inter-American standards. These jurisdictions logically continued with such an approach after 2006 (Mazzeo, Supreme Court of Argentina, 13 July 2007). Although one of the reasons for such a ‘pro-Inter-American approach’ can be found in the openness of the constitutional order to international human rights law (eg, Art 75–22 of the Constitution of Argentina and Fourth provisional clause of the Constitution), Oswaldo Ruiz-Chiriboga clearly demonstrates that before 2006 several domestic judges in Latin America were fully aware of the importance of taking into account Inter-American case law in order to avoid further declarations of international responsibility by the IACtHR (Ruiz-Chiriboga, 2010, 200–19).

35  In Mexico, two factors explain the ‘Inter-American friendly approach’ of the Mexican Supreme Court in the very famous ruling held in 2011 (Case No 912/210, Supreme Court of Mexico, 14 July 2011). Firstly, the fact that in the space of only two years (2009–2010)—after the Radilla Pacheco case (Radilla Pacheco v Mexico; Tardif, 2015, 677–92), which shed light on the forced disappearance of a leftist political activist in the 1970s at the hands of the army, the Mexican state had been declared internationally responsible in three others cases. Yet again, unconventional acts by members of the Mexican army were involved (Cabrera Garcia v Mexico; Fernández Ortega v Mexico; Rosendu Cantú v Mexico). Second, the modification of the Constitution in 2011 in order to recognize the Constitutional status of human rights norms enshrined in treaties (Constitutional Reform, Official Journal of 10 June 2011 amending Art 1 (García Ramírez, 2017, 59–91). This context explains the solution put forward in the 2011 Supreme Court ruling, where the obligation of all Mexican judges to exercise comprehensive conventionality control was recognized. The step was a critical one. Indeed, prior to this decision Mexico had a system of concentrated constitutional control, where only federal courts had the power to review the constitutionality of secondary laws. Giving effect to the Radillo Pacheco decision triggered an immediate consequence: ‘all the Mexican judges would have to cease applying Art.57 II (a) of the Code of Military Justice and would need to interpret Art.13 of the Mexican Constitution in accordance with the Court’s holdings’ (E. Ferrer MacGregor, 2017, 321–36, ff 326).

36  Other States—less scrutinized by mainstream academic legal discourse—have also accepted quite easily the new approach launched by the IACtHR. Costa Rica, Ecuador, and Guatemala are good examples of this trend. It is striking to note that the very controversial ruling in the Artavia Murillo case, was fully taken into account by the government of Costa Rica (Decree 30210 MP S; Benavides Hernández, Carvajal Pérez, 2016, 347–72). The same trend can be observed in Guatemala (Gudiel, 2016, 33–57) as well as in Ecuador (Aguirre Castro, 2016, 265–310; Estupiñan Rivas, 2016, 245–372), where judges gave effect to conventionality control.

37  In three countries, and for different reasons, the authority of Inter-American case law has been challenged. In Venezuela, Chavez and Maduro’s regimes put the judicial branch under control and developed a very aggressive policy against both the Commission and Court. In this context, the constitutional Chamber developed case law denying any force, within the domestic order, to the rulings of the IACtHR (Case E N°11-1130, Constitutional Chamber of Venezuela, Supreme Court of Justice, 26 September 2011; RH Cavalieri, 2016, 381–99). In Brazil, there are both legal and sociological aspects which explain the refusal of the Supreme Court to accept conventionality control: the Constitution is not as open to international human rights law as in other countries and the legal culture of the Supreme Court’s members is quite conservative (de Carvalho Ramos, 2016, 11–32; Caletti, 2016, 189–214). In the Dominican Republic, it is actually a single ruling delivered with respect to a very sensitive issue (eg nationality of Haitian descendants: Expelled Dominicans and Haitians v Dominican Republic) which stirs a negative reaction from the Constitutional Court, which has ruled the Inter-American Court’s jurisdiction unconstitutional (TC/0256/14, Constitutional Court of the Dominican Republic, 4 November 2014; Sierra Cardena, 2016, 181–243).

38  Beyond these examples of successful and unsuccessful control of conventionality exercise, a more precise picture shows that different kinds of judicial behaviour exist within each State over time and between different jurisdictions. Actually, the lines are blurred.

39  In Chile, whilst the Supreme Court is particularly favorable towards the Inter-American System in general, it is not the case with the Constitutional Tribunal. One of the reasons is the general feature of Chilean Constitution, not as open to international and human rights law as others within the hemisphere (Cavallo, 2012, 717–49; García Pino, 2017, 287–322; Schönsteiner, 2016, 197–226).

40  In Uruguay, while the Supreme Court had proved very bold, even brave in ruling against the amnesty law in accordance with the Inter-American Court’s case law (Sabalsagaray Curutchet Blanca Stela, Supreme Court of Uruguay, 19 October 2009, Case 365/2009, Exception of Inconstitutionality) it radically changed course in the framework of the execution of the Gelman judgment with its judgment of 22 February 2013 (Supreme Court of Uruguay, 22 February 2013, doc No 20, Ministro Redactor Jorge O Chediak Gonzalez). Notwithstanding this, some other more recent cases show that the obligation of ‘compliant interpretation’ is applied quite interestingly by the Supreme Court and lower Courts (Supreme Court of Uruguay, 11 April 2016, case 87/2016; Pérez Manrique, 2016, 409–20; Case 221/213, Tribunal of Appeal, Criminal Matters).

41  Likewise in Mexico, whilst national authorities took conventionality control very seriously—and the Supreme Court adopted the conventional criterion following the condemnation in the Radilla Pacheco case, a subtle and complex change of attitude was observed with the judgment of 3 September 2013 because of strong internal resistance to the new paradigm of rights (Contradicción de Tesis No 293/2011, Supreme Court of Mexico, Plenum). As Pedro Salazar Ugarte has pointed out, the controversy among Supreme Court Justices is ‘attributable to differences in ideological conceptions or legal cultures’ (Salazar Ugarte, 2017, 67–82, ff 81). It is still an ongoing debate in the country and within the Supreme Court: its rulings, despite accepting the exercise of conventionality control (Revision Ruling No 1046/2012, Supreme Court of Mexico, 16 April 2015), are still adopted with strong dissents (Pardo Rebolledo, 2017, 129–38).

42  The most striking example of critical evolution over time is that of Argentina. After being one of the most celebrated countries for its open approach to international human rights law and Inter-American Human rights case law, the Fontevecchia ruling changed everything (3 February 2017, Supreme Court of Argentina). The apex Court of Argentina refused to implement the Fontevecchia y D’Amico decision (IACtHR, 2011). The reasons? Macri’s new neoliberal government—for which the human rights agenda is not a priority—and the appointment of conservative members (Carlos Rosenkrantz and Horacio Rosatti) to the Supreme Court (Rossi, 2017, 296–304). Many domestic non-governmental organizations (‘NGOs’) and numerous members of the legal academy strongly criticized this change (Abramovich, 2017, 85–98; Human Rights, Role of Non-Governmental Organizations) but, until now, the Supreme Court is still developing a nationalistic approach to international and Inter-American case law (‘Muiña Case’, Supreme Court of Argentina, 3 May 2017).

43  Doctrinal analyses of successes and failures in implementing conventionality control in Latin-American countries are plentiful (see the Further Bibliography below). They demonstrate the increase in interest in Latin America in the regional human rights system. Such academic enthusiasm did not exist fifteen years ago. It is possible to present the range of opinions based on a summa divisio pointing out (a) benevolent authors and (b) more critical ones.

44  The ‘open constitutionalism’ school of thought forms part of a dialogical approach to systems, which implies a new kind of relationship between international and domestic judges. From a theoretical point of view, their reflections are part of the parallel phenomena of constitutionalization of international law and internationalization of constitutional law. Multiple theories have been developed on this change of paradigm; Latin-American authors have taken part in this debate and have noted the transformation of legal orders into a more open form (Capaldo, Sieckmann, and Clérico, 2012).

45  This school of thought values the new systemic relations between international human rights law and domestic law implied by the phenomenon of ‘internationalization’ of Latin-American constitutions (Ortiz, 2009, 231–85; Morales Antoniazzi, 2013, 178–227; 2017, 255–76). It reveals a new kind of constitutionalism, a departure from the violent history of the continent. When democracy was restored in the early 1980s, it was essential to move on from the macabre machinery of authoritarian regimes from the 1960s and 1970s (enforced disappearances, summary executions, transnational State terrorism with the gruesome ‘Plan Condor’, etc). In that context, international human rights law appeared as the legal embodiment of democratic values based on inalienable respect for human dignity. Hence, adopting ‘modern’ constitutions after the fall of authoritarian regimes consisted of—besides establishing constitutional and/or supreme courts responsible for the protection of fundamental rights—putting international human rights law in a key position in the hierarchy of norms. An interesting example is Argentina, where whilst ‘classical’ international treaties are supra legislative and infra constitutional, international human rights treaties are granted expressis verbis a constitutional status (Art 75 para 22 of the 1994 Constitution), and in certain circumstances they could prevail over domestic law, including constitutional law (through ‘primacy clauses’) and making international human rights law the interpretative reference in terms of constitutional fundamental rights through ‘interpretive clauses’ (see also the Colombian Constitution of 4 July 1991 (Art 93); the Peruvian Constitution (4th Transitory Provision), the Haitian Constitution of 10 March 1987 (Art 19), the Dominican Republic Constitution of 26 January 2010 (Art 74-4), or the Mexican Constitution as amended in 2011 (Art 1)).

46  Some legal systems not only place international human rights treaties above the constitution but also provide for constitutional fundamental rights to be interpreted according to the relevant corpus juris. This is the case in Bolivia and Ecuador. The Bolivian Constitution of 25 January 2009 is notable as it highlights the supra-constitutional status of international human rights treaties—treaties that have been signed and ratified by Bolivia or to which it has acceded—and this provides better protection than domestic law, including the Constitution (Art 256.I). The Constitution also provides an ‘interpretive clause’ for constitutional rights based on rights enshrined in international treaties when they provide more favourable norms (Art 256.II). Likewise, the Ecuadorian Constitution of 20 October 2008 grants international human rights treaties a supra-national rank (Art 424, 2nd sentence) and provides an ‘open clause’ (Art 417).

47  This constitutional background provides the theoretical basis of ‘benevolent’ authors with regard to conventionality control. They recognize the new legal landscape and consider that previously orthodox analyses are no longer valid: the international and national legal orders are ‘related’, and relations between judges have been transformed, notably thanks to the development of the ‘judges’ dialogue’ (‘dialogue des juges’). That said, there are key variations within the analyses of ‘benevolent’ authors. The ‘enthusiastic’ school actively support the theory and promote it at all costs (some would call them activists) and others, the ‘circumspect’ school, analyze the theory from a distance and are more cautious and critical.

48  There are two types. Firstly, there is the ‘actor-researcher’ who is part of the conventionality control establishment and works at the IACtHR; they mix with the ‘committed-researcher’ who, although not having any institutional link to the IAHRS, believes that conventionality control is the best way to contribute to human rights’ effectiveness in Latin America. They advocate for its largest possible distribution and acceptance on the continent.

49  The first enthusiastic ‘actor-researcher’ is the Professor of Constitutional Law of the UNAM and editor of the Revista Iberoamericana de Derecho Procesal Constitucional, Eduardo Ferrer Mac-Gregor. We mentioned above his contribution when he was an ad hoc judge in the Cabrera and Garcia Montiel Flores case but also since his election as a judge to the Inter-American Court, he has been the theoretician of conventionality control (the election took place in Cochabamba in Bolivia in June 2012 and he took office in January 2013). His status as an academic allows him to share his vision of the new systemic relations (Ferrer Mac-Gregor, 2010, 151–88). It is telling that his ‘founding’ concurring opinion has already been reproduced in extenso as a genuine doctrinal article (Ferrer Mac-Gregor, BMDC 2011, 917–67) and sometimes even extrapolated and expounded in other publications (Ferrer Mac-Gregor, 2013, 627–705). We can even say that every one of his most revealing separate opinions have been subsequently published in books and/or academic reviews (Ferrer Mac-Gregor, 2014, 329–81: his ‘voto razonado’ on the 2013 Order of the Court about monitoring compliance with the Gelman v Uruguay judgment was reproduced in this article). In his academic writings he attempts not merely to explain his vision but also to persuade domestic judges to accept it. Diego García Sayán is also one of the ‘actor-researchers’. Although he does not come from the academic world (he is a former Justice and Foreign Affairs Minister in democratic governments after Alberto Fujimori’s dictatorship), he took up his pen several times to highlight the new dialogue between the Inter-American Court and domestic courts; he did so as a judge in a noteworthy article which is often quoted (García Sayán, 2005, 325–84), but also fittingly when he took the Inter-American Court’s presidency (García Sayán, 2011, 1835–54). His analyses are founded in a belief in the success of this dialogue. He even published an opinion column in a newspaper to clarify and justify the Court’s case law in terms of amnesty in the Gelman case (García Sayán, ‘En nombre de las mayorías’, La Republica, 29 June 2012, also available on the Inter-American Court’s website). This initiative is not merely academic: it is meant to persuade and is reinforced by its author’s formal authority. Similarly, when the Brazilian judge on the Court—Roberto Caldas—published an article in the Latin American Constitutional Law Yearbook in which he analysed and criticized the case law of the Brazilian Supreme Federal Court, hoping for a change in its membership that would be favorable to an assertive implementation of conventionality control, he was pursuing the same goal.

50  Besides judges, there are also young abogados of the IACtHR who can have, for one or several writings, the status of ‘actor-researcher’. As the driving forces of the San José Court who perform an enormous amount of work in terms of preparation of the decisions, they have expert knowledge of its jurisprudence: they witness how it develops thanks to their impetus. It is thus logical for them to be the ‘Inter-American Court’s friends’. They can be so either by presenting informative analysis (such as Ibáñez Rivas, 2012, 103v13) or with more activist studies. Two substantial articles by Oscar Parra Vera—Colombian Abogado Senior at the Court—are particularly telling. The first aims to ‘defend, the consequences of the Inter-American Court’s case law in terms of amnesty (Parra Vera, 2012, 5–51) whilst the second adopts a more global approach to analyse—with legal sociology tools—the question of the IACtHR’s rulings’ impact on States and how authors grasp this important question (Parra Vera, 2014, 383–420). He promoted the development of a ‘constructivist’ approach in order to increase the impact of the Court’s rulings within States.

51  The ‘committed-researcher’ figure is more complex as it has many more representatives. They share with the ‘actors’ their defence of conventionality control, without having any institutional link to the Inter-American Court. This group is comprised of young researchers—performing timely analysis (such as the Chilean Cavallo, 2012, 717–49), some of whom even propose new solutions to certain shortcomings (Vivas Barrera, Cubides Cardenas, 2012, 184–204)—as well as experienced academics who have produced a significant body of academic literature over the years (Nogueira Alcalá, 2012, 69–104; 2013, 511–53; Hitters, 2009, 109–28). The great majority are Latin American, although some of them live under different latitudes between the Americas and the Old Continent. In this context, we should mention a transdisciplinary and transnational group of researchers that has undertaken an ambitious collective research project based on the existence in Latin America of a Ius commune constitutionale Americano (von Bogdandy, Ferrer Mac-Gregor, Morales Antoniazzi, and Piovesan (eds), 2017). Obviously different tendencies exist within the group. However, some authors—such as Mariela Morales Antoniazzi—constitute the spearhead of an epistemological initiative based on profound adherence to conventionality control. According to her, it encourages what she calls ‘interamericanization’ of national constitutional orders as its role is twofold: it helps guarantee an ‘open State’ (Estado abierto) through ‘open clauses’ in national constitutions, but it also compensates for national weaknesses by publicizing Inter-American standards (Morales Antoniazzi, 2014, 265–99; Morales Antoniazzi, Saavedra Alessandri, 2017, 255–76). Profoundly convinced that a ius commune is being established (in the same way as the development of a constitutional European law on the Old Continent), she considers conventionality control to be the best instrument to speed its implantation. This approach is defended by many other authors (both international and constitutional law experts) who, with their specific style, form part of this enthusiastic—not to say activist—school of thought. They are the defenders of new systemic relations and promote conventionality control. For example, we can mention (once again without claiming to be exhaustive) the Brazilian Flavia Piovesan, the Colombian Manuel Góngora, the Venezuelan Carlos Ayala Corao (Del Diálogo jurisprudencial al control de convencionalidad, 2012), the Argentinean Juan-Carlos Hitters (2013, 315–29) or the Chilean Humberto Nogueira Alcalá (2012, 69–104) and Claudio Nash (2013, 489–509).

52  Besides those researchers, other authors, although fervent supporters of conventionality control as well—some because they have worked on key Court ‘rulings making’ (eg Oswaldo Ruiz-Chiriboga—who is in charge of the Inter-American Court’s and more broadly the IAHRS’s blog (Corteidh Blog). He worked at the Court and actively contributed to the implementation of conventionality control, notably in 2006 in the Almonacid Arellano case), others because they have been pioneers in their country own country in promoting them (de Oliveira Mazzuoli, 2009 (2nd edition in 2011), O contrôle jurisdicional da convencionalidade das leis); Marinoni and de Oliveira Mazzuoli, 2013)—have nonetheless decided, for the purpose of their ad hoc research, to study countries where its implementation has been sensitive, not to say chaotic (de Oliveira Mazzuoli, 2010, 175–90; Ruiz-Chiriboga, 2010, 200–19). In this regard, they are aware of the major difficulties that conventionality control can face and can be characterized as ‘circumspect’.

53  Circumspect authors are legal experts that can be described as ‘cautious’: they measure potential perverse effects of the theory. In principle, they accept it and welcome it—because they are part of the contemporary analysis of constitutional law being ‘interconnected’ with international law—but they warn against related difficulties in its formulation and/or implementation. The vast majority—apart from a few rare exceptions (García Ramírez’s initial background and area of expertise is criminal law)—are constitutional law specialists (most are constitutional procedural law specialists) and recognized researchers in their own country and on the continent.

54  The first of the ‘cautious’ jurists is the former Mexican judge and president of the Inter-American Court, García Ramírez. He sits at the origin of the expression and has kept supporting in his concurring opinions, on principle, the conventionality control theory as transforming domestic judges into ‘ordinary Inter-American conventional judges’. Therefore, logically he is a supporter of conventionality control as he takes note of the entanglement of national and international legal orders. His metaphor about a ‘constitutional bridge’ is now famous (see an excerpt of his separate opinion in the Dismissed Congressional Employees case as well as some of his published work, eg 2013, 564). However, he has warned several times against two kinds of problem. The first has to do with practical (ie procedural) modalities of the theory’s implementation. He opposes Ferrer Mac-Gregor’s view that there is a gradual increase in domestic judges’ control. Concerned about implementation difficulties posed by the theory—notably in countries where a concentrated constitutionality control was set up—he proposed establishing a referral to the constitutional court by ordinary judges… before it rules on a case where the human rights Inter-American standard is at stake (2013, 582: ‘In my opinion, it is preferable to organize conventionality control through questions about applicable provisions, especially where there is a background of ‘concentrated control’ and judges are not used to handling international law, besides “revolt winds” that could agitate jurisprudence.’ [translation by the author]). The point is to avoid ‘revolt’ by domestic judges (vientos de fronda). The second warning concerns the excessive scope of the recipients of the control. It is the Gelman case that prompted him to draw attention to the excessively large formula in paragraph 289 of the Uruguayan case. Imposing the exercise of conventionality control on ‘any public authority’ is, according to him, particularly dangerous and totally impractical (García Ramírez, 2015, 115–52).

55  The Argentinean constitutionalist Nestor Pedro Sagüés is also part of this school of thought, characterized by its prudence. Whilst he believes that conventionality control, if used correctly, can contribute to international human rights law primacy and to the edification of a ius commune, he is fully aware of difficulties in terms of its implementation (Sagüés, 2010, 117; 2013, 381–417). Accordingly, he tries to highlight some potential perverse effects of the theory. He considers its success is based on two factors. Firstly, caution and the legitimacy of the Inter-American Court’s case law. Caution is required when ruling on the unconventionality of a national norm (especially a constitutional one): he believes the Inter-American Court must exhaust all possible means to give an interpretation that is in conformity with the Convention and establish a sort of ‘presumption of conventionality’. Legitimacy is key when drafting judgments: the Court must resort to a solid argument, which involves avoiding any manipulation of international human rights law, and taking the doctrine of the national margin of appreciation seriously in certain cases. Moreover, domestic courts and especially supreme courts should pay particular attention to the Inter-American Court’s case law, follow it and know it perfectly (Sagüés, 2010, 117–36). More broadly, he thinks the national margin of appreciation is important. In the same vein, another Argentinean author, Victor Bazán, believes that conventionality control cannot and should not be developed without consideration for domestic case law. ‘Unidirectional logic’ should be avoided and dialogue between domestic judges and with the Inter-American Court should be encouraged (Bazán, 2013, 590–616).

56  It should be noted that ‘cautious’ authors do not hesitate to keep some distance and point out incoherence or what they consider to be nonsensical in the Inter-American case law on conventionality control. In general their criticisms are limited in time and scope. Apart from the above elements, the article by the Argentinean constitutionalist Alfredo M Vítolo is a good example (Vítolo, 2013, 357–80). Whilst in the first part of his study he recalls the transformation of contemporary law by the normative power of international law and welcomes conventionality control, he becomes extremely critical of what he calls ‘the supposed erga omnes effect’ of the Inter-American Court’s judgments. On this very point he disagrees with Judge Ferrer Mac-Gregor’s separate opinion in the compliance monitoring of the Gelman case.

57  This is a key issue which sums up some of the radical criticisms formulated by authors for whom international human rights law is not envisaged per se as being valuable.

58  What can be described as the ‘critical doctrine’ in relation to conventionality control is one which sees it from the outset through a very negative lens (for a very critical voice in Mexico, at the early stage of the process, see Castilla, 2011, 593–624). Three main approaches emerge: the sociological one uses methodological tools borrowed from political science and/or the sociology of law to situate the question of conventionality control within the much bigger issue of the implementation of judgments by States Parties; the technical approach uses essentially legal arguments to discredit the basis and the consequences of conventionality control; finally, the ‘liberal’ school questions the sensitive and endless issue of the legitimacy of international judges (Legitimacy in International Law). In short, these ‘schools’ discuss the viability in practical terms and the legitimacy in political terms of conventionality control theory. From a quantitative perspective, they have fewer representatives than the school of open constitutionalism (which is in itself very diverse as seen above); their criticisms are nonetheless powerful as they are very harsh in tone and relate to questions of principle (especially those of the liberal school).

59  For a long time authors working on international law implementation and enforcement by States analysed them as monolithic entities (unitary actors). Over the last few years, a new epistemological trend has developed. In order to match sociological reality, some try to decipher the attitude—regarding implementation of international law—not only of constituted powers (legislative, executive, and judiciary), but also other representatives of civil society (eg NGOs). Studies by Courtney Hillbrecht (2012, 959–85; 2014 Domestic Politics and International Human Rights Tribunals: The Problem of Compliance), Alexandra Huneeus (2011, 493–533) are part of this sociological approach and apply it to the Inter-American system. Their perspective is very different from that of the jurists and examines some very interesting practical aspects such as the position and role of prosecutors in the national judicial machinery, the vitality of human rights NGOs and their activities, and, above all, the different and sometimes contradictory approaches of the multiple actors within States (the risk of this approach is to overestimate judicial resistance, especially when it only focuses on unfortunate experiences, Huneeus, 2013, 112–39). This is a key point which brings to light the diversity of this new ‘compliance’ approach. As Huneeus wrote: ‘It is the coordination of a task between distinct state actors with different political wills and institutional settings that poses the challenge to implementation.’ Thus conventionality control is not dealt with in a targeted manner but placed in a broader context which aims to highlight shortcomings in the implementation of judgments and propose solutions. In any case, these new approaches have already been endorsed by ‘actor-researchers’ such as Oscar Parra Vera (2017, at 357–76).

60  Some legal scholars—such as Ariel Dulitzky (2015, 45–93) and Jorge Contesse (2017, 10)—have triggered a broad critical analysis of conventionality control, going further than a mere presentation of its shortcomings and potential dangers (as ‘circumspect authors’ have done). Both have developed two kinds of arguments, which have been challenged by other scholars (see the response to Contesse by Carozza and González, 2017, 436). Firstly, they pointed out the lack of clear textual support in the text of the Convention. For them, this element clearly undermines the praetorian creation of the Court, and in the end, the Court itself. Contesse writes: ‘Notably, the doctrine is not found in the text of the convention, nor was it suggested as a doctrine of judicial application of international law in the convention’s travaux préparatoires’. As for Dulitzky, the lack of a ‘strong legal foundation’ is clear. Secondly, both question the vertical and hierarchical relationships between the IACtHR and domestic judges triggered by conventionality control. They argue that such a theory does not give space to domestic judges, transforming them into mere subordinates to the IACtHR. For Dulitzky, the new approach is ‘unidirectional’, and for Contesse ‘a maximalist attitude’ which does not take into account the particularities of each constitutional system. These two scholars have proposed changing the theoretical landscape of conventionality control; the common point of their approach relies on the importance that the IACtHR should give to domestic jurisprudence in order to launch a true dialogue (not just a top-down exercise but also a bottom-up one), what Dulitzky calls a ‘strategic partnership’. In a nutshell, these two authors are promoting and proposing new paths to reinforce legitimacy and authority of the IACtHR. In a way, they are in accordance with some previous proposals developed within Latin American scholarship. Indeed, Bazán as well as Sagüés had argued for the necessity of a true dialogue based on common respect and use of the case law of each court (the national one and the Inter-American Court). In fact this trend is already present in the case law (Estupiñan Rivas, 2016, 51–179).

61  The liberal school is characterized by its unconditional commitment to classical democratic mechanisms embodied by popular sovereignty. Judges are considered suspect by nature since they are deprived of the natural legitimacy conferred by the people or their representatives. Three authors personify this liberal critical movement. The first is a Mexican constitutional law expert, Roberto Niembro Ortega (2013, 111–40) the second and third are from Argentina, a criminal law specialist (Malarino, 2010, 25; 2011, 435–55), and a specialist in sociology and law (Roberto Gargarella) respectively.

62  Roberto Niembro Ortega immediately sets the scene by considering that the ‘judges’ dialogue’—as generally understood—is not democratic. Granting an elite removed from reality the power to definitively determine the content of fundamental rights (the ‘final word’) and related level of protection is an ‘insult’. His assertion is based on the ‘deliberative democracy’ theory. In this regard he fully forms part of the liberal school according to which human rights are political values that societies adopt by political agreement through democratic consultation mechanisms. Far from the natural law conception of human rights, liberal authors consider human rights to be at the centre of important political discussions and that disagreement not only exists but is necessary to drive inventive solutions. Therefore, Roberto Niembro believes that conventionality control only leads to a monologue and denies the Inter-American Court power over the ‘final word’. In his opinion, no judge should have the final say simply because it is not democratic compared to this power resting with the people and/or their representatives, who are the only holders of democratic legitimacy. Thus his criticism also concerns domestic judges, including constitutional ones:

Judicial control of laws favors the vote of the majority of a small number of judges over decisions made by the citizens and their representatives, thus breaking the equality of political influence and results neutrality which is normally protected by the vote and majority rule.

From his point of view, it is logical to state that conventionality control is not democratic either. This criticism is much wider than conventionality control and touches upon what constitutes the democratic roots of any political system.

63  Roberto Gargarella is also a member of this school of thought. In an article entirely focused on the Gelman case, he radically rejects the Inter-American Court’s case law (Gargarella, 2013, SELA13). Like Roberto Niembro, one of his references is Jeremy Waldron (Waldron, 1999) and the other is Carlos Nino, the great law theorist (he advised Raul Alfonsin on amnesties, with an emphasis on national reconciliation) and one of his favorite authors. He rebuffs the Inter-American Court’s stance by focusing on three issues: democracy, human rights, and punishment. One cannot say that this article reveals profound knowledge of the Inter-American jurisprudence. Rather, one gets the feeling that he is discovering it through a judgment which he found surprising and which he discusses generally, emphasizing his significant theoretical knowledge about law. The starting point of his analysis—the philosophical foundation—is the State and its processes of deliberation rather than the individual and the principle of protection pro homine. He thinks the Court should have drawn a distinction between the different kinds of amnesties in Latin America, for example by taking into consideration their variable degrees of democratic legitimacy. He also rejects the refusal of the Inter-American Court to adopt a formal approach to promoting democracy (Gelman v Uruguay, 2011, para 238). He responds indirectly to Diego García Sayan’s newspaper article and criticizes the overwhelming—according to him—influence of the theorist Luigi Ferrajoli in the Americas. In this context, he criticizes how little importance the Court seems to give to ‘majorities’, especially when they run counter to human rights. That is when he calls on Jeremy Waldron’s work and asserts that there will always be discussions in democratic societies that demonstrate disagreement in terms of justice and human rights. Finally, he challenges the systematic use of castigo penal (criminal sanction) as the best ‘punishment’ of human rights violations. He condemns once again the categorical and undifferentiated response of the Court—according to which criminal sanction is indispensable when dealing with massive human rights violations—because he believes that the ability of democratic societies to consider and implement a ‘diversified’, if not nuanced, criminal response should be taken seriously.

64  For his part, Ezequiel Malarino strongly criticizes three trends in the Inter-American Court’s case law that he considers anti-democratic and anti-liberal. The first is the Court’s judicial activism: it has totally re-drafted and altered the ACHR with the sole purpose of adapting it to current realities; the second concerns recognition of new victims’ rights (that are not provided for by the Convention), which as a consequence neutralizes the rights of the accused in criminal trials that were recognized expressis verbis by the Convention; finally, the third trend is related to the case law on reparations. He condemns it as being intrusive on judicial, legislative, and executive functions that are all emblematic of national sovereignty. This third element reveals how important this Argentinean criminal law expert considers certain democratic features from which (once again, like his counterparts mentioned above), the judge is absent:

There is no doubt that ratification of the American Convention and recognition of the Inter-American Court’s competence necessarily imply restrictions on national sovereignty. But how can those restrictions go as far as allowing an international Court, comprised of seven part time judges who were not elected by the people, to have the last word on the need to rule behaviors through a law or on the concrete content of that law? … Parliamentary discussion grants norms their democratic legitimacy. The lack of popular legitimacy of the Inter-American judges does not put them in a good position to legitimately establish restrictions to rights and freedoms of Latin American citizens. They do not enjoy democratic support to make difficult decisions requiring political deliberation.

65  Such a critical approach was most precisely developed with regard to conventionality control in an article published in 2011. It was drafted in the same academic context as the previous one, in the framework of a continuous research project on criminal law (international and domestic) funded by the Konrad Adenauer Foundation and included Latin American and European academics working under the supervision of Kaï Ambos (Malarino, 2011, 427–28, spec 51). Ezequiel Malarino denies the existence of any obligation for domestic judges to ‘follow’ the Inter-American Court’s case law based on conventionality control theory. He believes instead that, according to a strict interpretation of Article 68.1 ACHR, the Court’s judgments are non-binding on domestic courts.

66  This overview of both the inception of conventionality control theory and the scholarly discourse about it, demonstrates the IACtHR’s creativity and the maturity and diversity of academic analyses on Latin America, to such an extent that some consider it is turning the San José Court into a Constitutional court (Burgorgue-Larsen, 2014, 1–28; Dulitzky, 2015, 45–93; Negishi, 2016, 243–64 and 2017, 457–81). They include various conceptions of law and justice in an inter-connected world where international human rights law has played a key role. It would be wrong to believe that these works do not extend beyond academia’s ‘small world’ (to borrow the title of the former British Professor David Lodge’s novel, Small World.) They impact on all judges’ reflections, both the Inter-American Court as well as domestic courts. One of the most striking elements (in recent publications), is the will of some members of the IACtHR to highlight the link between conventionality control and judicial dialogue (Ferrer Mac-Gregor, 2017, 321–36; Figueiredo Caldas, 2017, 45–62).