INTRODUCTION

The critiques made of the doctrine of conventionality control could be rejected on the grounds that the interpretation of international human rights norms must be based on principles of justice, as understood by the Inter-American Court and the Inter-American Commission, rather than on the agreement of States as reflected in the text and the travaux préparatoires of the American Convention and other treaties of the Inter-American System. This position – which could be based on the ideas of prominent authors such as A.A. Cançado Trindade – would reflect a strong idealist and monist position that confines the relevance of the sovereignty of States only to the emergence of international obligations at a very abstract level (i.e. with the consent to be bound by a treaty and the acceptance of the jurisdiction of monitoring institutions), and would conceive international institutions (especially the ICtHR) as the ultimate authority to determine and expand the content of the Inter-American Corpus Juris, and of its own jurisdiction, as it considers best for the protection of human rights.

This notion would reflect the conviction that the interpretation of international human rights law (IHRL) must be based in considerations of humanity and not in the consent of States, and for that reason criticism based on positive international law has no place in the Inter-American System.

This chapter rejects both views – the positivist, explained in the previous chapter, and the idealist, explained in the previous paragraph – as solid points of departure to criticize or to sustain the validity of the doctrine of conventionality control.