La subsidiariedad desde la mirada del Ius Constitutionale Commune en América Latina: ¿desaparición o renacimiento?

Against the common understanding under ICCAL, rather than being an obstacle, the principle of subsidiarity can be a tool for a better and more effective protection of human rights. This re-understanding rescues the true meaning of this structural principle: rather than preferring national jurisdictions to international bodies, the principle seeks to find what is the right level of protection. This right level should be determined under flexible criteria to identify the degree of intensity of its application, and States should not have identical treatment. This criteria should include, (i) the political will and legitimacy that the State has given to human rights bodies; (ii) the strength of its domestic institutions -particularly the judicial branch-; (iii) the ability of civil society to influence the decisions of the State; (iv) compliance, and (v) the adequacy and effectiveness of the normative framework to protect human rights.