The new reality regarding International Human Rights Law has brought profound changes in the classical concepts of state sovereignty and supremacy of the Constitution. A study on the relationship between the concepts of constitutional supremacy and conventionality control is carried out in the light of the case law of the Inter-American Court of Human Rights. In particular, the concept of constitutional block, the problem of the hierarchy of international treaties on human rights, as well as the scope and effects of conventionality control are analyzed, seeking to determine the viability of its implementation in Uruguay.
In this paper we begin by examining the evolution of jurisdictional activity, both with reference to its relative weight in the “checks and balances” system, and in relation to changes in the vision of law, particularly in times of what has been called the “Liquid Law”, typical of postmodern society.
In this context, the notions of judicial activism and “judicialization” of political activity will be analyzed from a doctrinal and jurisprudential perspective, exploring its origins in the jurisprudence of the US Supreme Court.
Next, the evolution of the jurisprudence of the Uruguayan Supreme Court of Justice will be studied in order to show the confrontation of arguments around the question of judicial activism.
To conclude, we will outline some final reflections on the topic, even taking into account it is a topic in which we consider extremely difficult to arrive at definitive conclusions.
In 2019, 40 years of the creation of the Inter-American Court of Human Rights are commemorated. During these four decades, three of its ministers have been Uruguayan: Héctor Gros Espiell, Alberto Pérez Pérez and, currently, Jorge Pérez Manrique. The date becomes an opportunity to analyze their participation in the judgments of the regional Court. The objectives set forth then are: a) systematize quantitatively dissident or individual opinions of magistrates Gros Espiell and Pérez Pérez, now deceased; b) try to reflect substantive criteria in those dissident or individual votes; and c) intend to explain if these dissident or particular foundations have their cause in opinions of the constitutional Uruguayan doctrine more accepted or not.
Of these, the study will be restricted to those in which their vote was dissenting or individual under the terms of Article 66.2 of the American Convention on Human Rights.
Recently, the Uruguayan Supreme Court of Justice has included in several decisions, assertions about its competence to carry out “conventional control” of laws. Notwithstanding the fact that this jurisprudence of the hierarchical body of the judicial branch has the support of prestigious national doctrine, we allow ourselves to make some points about it.
As an example, we analyze the arguments contained in Supreme Court´s decision that resolves about the unconstitutionality of Law No. 18.335.