Enforcing Human Rights Through Conventionality Control by Jack Dias-Harrison

Abstract

Observing the practice of the Inter-American Court, this article will criticise the doctrinal effectiveness of conventionality control as a mode of regional enforcement of human rights. The article firstly criticises the theoretical argument that conventionality control is a more effective way to enforce state human rights compliance. Firstly, there is no actual legal basis both explicitly in the American Convention on Human Rights, and implicitly through precedent from the decision of Almonacid or by invocation of the principle of effectiveness. Without authority there is no normative reason for States to subject their own domestic law to the Inter-American Court to enforce human rights. Secondly, the article criticises the systematic illegitimacy in unjustifiably restraining the actions of democratically legitimate states. Systematic illegitimacy gives no normative reason for states to comply where their own democratic autonomy is denied and infringed, leading to non-compliance with human rights judgements. This is illustrated in the cases Gelman and Fontevecchia. Finally, this article proves these normative issues in practice through an empirical analysis of the low compliance rates in conventionality control judgements. The article then engages with the highly complied alternative friendly settlement process which by comparison proves that conventionality control is ineffective due to it’s lack of dialogue with the states. Therefore, if the states have no normative reasons to subject their domestic laws or comply with enforcement orders, and in practice conventionality control does not cause high compliance in contrast to non-maximalist dialogic mechanisms, then conventionality control is an ineffective mode of regional enforcement of human rights.