La doctrina del control de convencionalidad a la luz del principio de subsidiariedad

Abstract

This article studies the doctrine of conventionality control from an International Human Rights Law perspective. The first section explores the line of jurisprudence of this doctrine, from its creation in Almonacid Arellano et al. v. Chile (2006) to its latest development in Andrade Salmon v. Bolivia (2016). The second section analyzes the conceptual elements of conventionality control: its definition and legal foundations, its subjects, its object, and the normative parameters upon which it must be exercised. The third section responds to some of the strongest criticism that might be raised against the existence of this doctrine, arguing that the validity of conventionality control can be found on the principle of subsidiarity. This article shows a version of conventionality control that would allow increasing the effectiveness of IHRL at the domestic level, but that also recognizes the existence of legitimate spaces of freedom for States to define the scope of human rights and the means to fulfill with their IHRL obligations.