THE PROCESS OF CONSTITUTIONALIZATION OF INTERNATIONAL HUMAN RIGHTS LAW AT THE REGIONAL LEVEL: THE CHALLENGES OF THE EUROPEAN COURT AND THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Abstract

This article discusses the process of constitutionalization of international law, based on an examination of the case law of the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR). Through a bibliographical review, the objectives were to present the idea of ​​constitutionalization at the international level, based on an examination of the precedents of regional protection systems; then, the aim was to analyze the consolidation of the use of the constitutional perspective by the ECHR and the IACHR in their judgments. As a hypothesis, it is believed that regional protection systems develop the constitutional approach to international law through their judgments on human rights. Filling gaps in conventional international law, resorting to custom to prove its existence and the possibility of exercising “conventionality control” in cases related to human rights violations are some of the ways in which certain situations are subject to law and its jurisdiction. As a result, it was found that the hypothesis was partially confirmed. By examining the cases, it is clear that each regional system for the protection of human rights has a specific characteristic, within which it must act for the constitutional development of international law. In this regard, it can be inferred from the examination of the cases of the ECtHR and the Inter-American Court of Human Rights that the constitutionalization of international law can be constructed from both bottom-up and top-down perspectives, using the sources of international law – customs, the case law of the regional courts themselves and the general principles of law – to fill the gaps in the international legal system.