A presentation by Herdís Kjerulf Thorgeirsdóttir, Vice President of the Venice Commission at the International Seminar on Constitutional Courts and Democracy held by the Electoral Court of Mexico and El Colecio de Mexico in Mexico city on 3 and 4 March 2016
“Conventionality control and democratic principles”
International human rights treaties play a very important role today, since virtually all states are bound by one or more of them. This is particularly true in Europe and in Latin America, due to the existence of regional human rights systems within the Council of Europe and the Organization of American States.
One of the most admired writers in the Spanish speaking world, the Mexican Carlos Fuentes once said that if writers did not speak out for the people, nobody would. He was referring to older times of authoritarian regimes and widespread corruption – [perceiving of corruption as being a thing of the past ]. Carlos Fuentes was known for embracing justice and human rights regardless of political labels. Now the time has come where the judiciary may have taken over that role. The Venice Commission considers that courts play a key role in the implementation of international human rights as I will discuss later.
The human rights revolution taking place after World War II has provided us with the important UN human rights treaties like the International Covenant on Civil and Political Rights and the regional ones like the European Convention on Human Rights and the American Convention on Human Rights along with the implementation bodies and respective courts with their extensive case-law leading to an increased and common awareness of the rights of individuals and the states’ obligations in securing human rights where courts play a key role.
The doctrine of conventionality control
In 2006 the Inter-American Court of Human Rights found Chile to have violated the basic human rights of an elementary school teacher and political activist who was executed extrajudially by his captors during Pinochet’s newly installed military regime. The Inter-American Court of Human Rights found that the State had violated the victim’s rights to a fair trial and to judicial protection under the American Convention on Human Rights.
The Court’s judges in this landmark judgment, of Almonacid Arellano et al v. Chile, introduced the doctrine of “conventionality control”.
Referring to the obligations imposed on states by international human rights treaties, such as the American Convention, the Court stated its judges are also bound by the Convention, forcing 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 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.”
This approach of the Inter-American Court of Human Rights requiring judges to invoke international human rights treaties to guarantee fundamental civil and political rights within the domestic order goes to show that a previously anarchic legal world is evolving toward a unified global legal community with an increased common understanding of human rights.
II. Venice Commission: courts are key actors
The VC adopted a report in 2014 on the implementation of international human rights treaties in domestic law with special focus on Europe and Latin America and on the role of the judiciary – where it concluded that courts are key actors in reviewing the compatibility of domestic legislation with international human rights treaties.
Domestic courts, when reviewing the compatibility of domestic legislation with the respective Conventions and the Covenant, reinforce their role as protectors of human rights at the domestic level and carry out a type of “diffuse review of compatibility”, as opposed to the international review carried out by the international courts and monitoring bodies themselves.
International courts and monitoring bodies
The role of the European Court of Human Rights and the Inter-American Court of Human Rights as well as the UN Human Rights Committee serves to ensure uniformity in the interpretation (and therefore is considered as a “concentrated review of compatibility” between domestic legislation and the treaties themselves).
In addition, the European and the Inter-American Court of Human Rights, which have jurisdiction to review the compliance by the States with their obligations under the respective Conventions, have developed an extensive case-law which has become an autonomous source of authority when interpreting the meaning and determining the scope of the human rights laid down in the European Convention on Human Rights and the American Convention on Human Rights respectively. They also carry out an ex-post review of the compatibility of domestic law with the respective Conventions. This review, as pointed out by the VC, is concentrated as opposed to the dispersed review exercised by the domestic courts. The concentrated case-law of the international courts has a harmonizing effect through its binding character – which has had an impact on the international obligations assumed by States and on the contents and scope of the rights and freedoms incorporated in the Conventions.
Political culture and position granted to international human rights treaties
There is no uniformity in the way states implement the international human rights treaties; they may adopt different models and they are influenced by multiple factors pertaining to the historical, political and legal culture of the country. The political culture of a country has an impact on the position granted to international human rights treaties within the legal order. There is societal consensus on the importance of human rights in democratic societies. This is evident from the legislative reforms in Eastern Europe, after the fall of Communism, and Latin America and other regions after the fall of previous totalitarian or autocratic regimes. The legal factors determining the status of international human rights within the domestic order encompass whether a state is monist or dualist.
Openness of constitutions in Latin America
The Venice Commission notes in its above mentioned report that in Latin America, constitutions have shown an important openness towards international law, which has facilitated the integration and implementation of human rights treaties in domestic legal orders. The constitutions of Argentina, Brazil, Bolivia, Colombia, Costa Rica, Mexico, Venezuela, among others, contain explicit reference to the status and hierarchy of international law treaties and some of the constitutions even establish the supremacy of international human rights treaties. The Inter-American system of human rights has experienced an important evolution and has rendered around 300 judgments.
Courts faced with conflicts between domestic and international law
The Venice Commission considers that courts are key actors in ensuring the protection of fundamental rights and freedoms by making a dynamic use of the powers left to them by international human rights treaties and by exercising the review of the compatibility of domestic legislation with these treaties. Domestic courts may be confronted with cases involving a conflict between domestic law and an international human rights treaty.
In some cases, the domestic courts will be able to settle these conflicts by interpreting domestic legislation in such a way as to bring it into conformity with the provision of international law (the so-called ‘harmonising interpretation’). Domestic courts should apply the provision, which is the most favourable to the protection of human rights.
Conflicts between domestic and international norms
The VC points out that the tools domestic courts have at their disposal to implement international human rights treaties come both from the domestic and from the international arena. International treaties supplement domestic law, offering additional legal sources that may be interpreted and applied by domestic courts. Their implementation can no longer be explained purely on the basis of hierarchical relations; both legal orders (international and domestic) pursue the same goal (implementation of human rights) and mutually complement each other.
The report shows that there are still tensions between the case-law of domestic courts in the domestic arena and the case-law of international human rights courts on the same topic. The German Constitutional Court has for example stated that judgments of the European Court of Human Rights “must be taken into account”. In July 2015 the Russian Constitutional Court confirmed that the “participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.” This means that Russia considers itself in a position to step back from its international obligations; albeit it is clear from the Vienna Convention on the law of Treaties as stipulated in Article 26 that every treaty in force is binding upon the parties to it and must be performed by them in good faith; and furthermore as stated in Article 27 that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
The regional courts such as the European and the Inter-American Court also have a crucial role to play in the implementation of international human rights treaties, when conducting a review of the compatibility of the domestic law and the respective Conventions, and this review goes often hand in hand with the review of conventionality and of constitutionality performed by many domestic courts. The regional courts can support the domestic courts in the rulings against their governments.
III. Rulings of quasi-legislative nature and far reaching consequences
In the face of non-compliance of the other State authorities, the Venice Commission considers that it is the proper role of courts to guarantee the enjoyment of international human rights, which is particularly visible when they apply the ECHR, the ACHR and the ICCPR. This role may affect the separation of powers or functions within the state. It might be seen as if courts, setting aside national legislation and acts of the administration in order to protect rights included in an international treaty, assume competences, which traditionally belong to the legislator as the State organ, which enjoys the strongest democratic legitimacy, or to the government. In practice however, it cannot be excluded that courts give rulings even of a quasi-legislative nature, to counter structural non-compliance with human rights norms by the other state powers. As the Venice Commission has emphasized courts should of course be careful to keep within the limits of their competences, as they draw their legitimacy from constitutions, taking into account that their decisions may have far-reaching and sometimes unforeseen consequences. Such a last resort involvement of the courts is appropriate, because under domestic law, the judiciary is the ultimate guarantor of fundamental rights.
IV. Juristocracy: judicializing political agenda?
Critics of this enhanced role of the judiciary point to the global transformation of the last decades with the changed role of courts now exercising “sweeping constitutional powers” – using the concept of juristocracy to describe the evolution within countries that have “hosted this expansion of judicial power” from Latin America to Eastern Europe and further. Critics maintain that anything and everything has become justiciable with this development. These same critics maintain that political agenda has been judicialized.
In a way there may be some truth to this.
Highest courts transforming electoral politics
The Conventionality Controle doctrine of the Inter American Court of Human Rightsbears some resemblance to the judicial review mechanism sketched out by the U.S. Supreme Court in the famous ‘Marbury v. Madison’ decision (1803). Alexis Tocqueville in his famous work “Democracy in America” spoke of the immense political influence of the US judiciary in the 19th Century where there was hardly a political or moral controversy that did not sooner or later become a judicial one.
One of the most serious challenges to the democratic process in today’s world is the corporate oligarch control of the electoral process – a gigantic obstacle to the future of democracy and human rights everywhere. A few years ago the United States Supreme Court exercising its famous judicial review rendered a decisions which many say will doom democracy int he US. The US Supreme Court decision of Citizens United v. the Federal Election Commission in 2010 allowing unlimited election spending by individuals and corporations to groups called Super-Pacs that can accept unlimited contributions, which may eventually doom democracy in the US with its remarkable constitutional heritage. Huge donations by corporations are protected under the Constitution as free speech, making US politics hostage to big money. The 2016 Presidential elections in the United States involve the largest amount of money in any such elections so far.
The Brasilian Supreme Court  on 17 September 2015, on the other hand, declared corporate donations to political parties and campaigns to be unconstitutional, in a ruling that could transform electoral politics in Latin America’s largest country. The Justices voted 8-3 late o in favor of a challenge, brought by Brazil’s national bar association, to electoral laws that allow companies to donate up to 2% of their previous year’s gross revenue to candidates or party campaign funds. Politicians running for office in the future will be able to receive money only from a pool of public electoral funds and from individuals, who may contribute up to 10% of their previous year’s earnings.
Brazil’s constitution doesn’t explicitly forbid donations by companies. But its first article, referenced by at least one justice who voted with the majority, says “all power emanates from the people, who exercise it through elected representatives or directly.”
The above judgments are striking examples of how the highest courts interpreting constitutional principles can transform electoral politics and democracy itself – for the good of democracy in one case and threatening its foundations in the other.
 Almonacid Arellano et al v. Chile: This case concerns the extrajudicial execution of Mr. Almonacid Arellano, an elementary school teacher, union leader, and activist in the Chilean Communist Party. Augusto Pinochet’s newly installed military regime perceived Mr. Almonacid Arellano as a threat and arrested him at his home in Rancagua on September 16, 1973. As Mr. Almonacid Arellano walked to the police truck, his captors shot him and he died in a hospital the next day. The First Criminal Court of Rancagua initiated an investigation into the case, but the case was ultimately dismissed on September 4, 1974. When Mr. Almonacid Arellano’s family requested to have the case reopened in 1992, the courts rejected it because Decree No. 2.191 of 1978 granted amnesty to the perpetrators of those crimes occurring between September 11, 1973 and March 10, 1978. The Court found the State violated the victim’s rights to a fair trial and to judicial protection under the American Convention on Human Rights.
 Roberto MacLean in Defining the Field of Constitutional Law, p. 239.
 Among others, the Constitution of Guatemala (31 May 1985), in its Article 46, refers to the primacy of international human rights treaties over domestic law; the Constitution of Peru (1993), in its Article 105, enounces that the international human rights treaties have constitutional status; the Constitution of Chile (30 July 1980), reformed its Article 5, which establishes that “the organs of the State must respect and promote such rights, guaranteed by this Constitution as well as by the international treaties that are ratified by Chile and that are in force”; the Constitution of Colombia (7 July 1991), establishes in its Article 93 the primacy of international human rights treaties over the domestic legal order; etc.
 Ran Hirschl, Towards Juristocracy: the origins and consequences of new constitutionalism, Harvard University Press, 2004, p. 221.
 The decision was widely seen as the latest ripple effect of the corruption scandal surrounding state-run oil firm Petróleo Brasileiro SA, high-level politicians and a web of contractors that includes some of Brazil’s largest political donors. The so-called Car Wash investigation has unearthed a scheme under which construction firms overcharged Petrobras for contracts and then paid kickbacks to politicians and parties, highlighting the cozy ties between government and big companies in a nation long known for cronyism.