Enrique Arancibia Clavel was a member of Chile’s intel- ligence service .. See “ Constitucionalistas apoyan el fallo de la Cámara”,. December 22, (Publication Date: ) Cuarta compilación de fallos y resoluciones de la Justicia Hernán I. Schapirocomenta el fallo “Arancibia Clavel”, en el que la Corte. Argentina’ por la Corte Interamericana de Derechos Humanos,” Fallos .. [ National Supreme Court of Justice], 24/8/, “Arancibia Clavel, Enrique Lautaro s/.

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Based on this analysis, advances and setbacks are identified in the different positions adopted by the Supreme Court, which then allows for the identification of problems. Finally, the study falpo a way by which to overcome the challenges and thereby improve the level of compliance with IAHRS decisions. The effectiveness of xrancibia Inter-American Human Rights System IAHRS is a topic that attracts increasing attention, given concerns about a lack of compliance with its decisions by different bodies.

In particular, one could highlight the publication in of two quantitative studies that examined the degree to which the decisions adopted by the bodies of the IAHRS were effectively applied BASCH arandibia al.

The two publications are far from identical; for one thing, they each analyzed different sets of data. Likewise, the ADC study was limited to evaluating the decisions taken within a five year period, whereas our study looked at all sentences clafel by the Court since it began in until the end of — decisions the Court would have monitored for compliance as of late Similarly, another important difference is in the conflicting conclusions drawn about the effectiveness of the IAHRS; this can be attributed to differences in indicators, arancjbia than substantial differences in data measurement.

However, our analysis exposed strong reasons to believe that the measures necessary to achieve this objective should come from within States themselves, and here we diverge from some of the proposals in the ADC study. Above all, the judicial powers of the States must accept the binding nature of the decisions of the judicial body of the IAHRS, given that — as will be explained shortly — this is where the greatest obstacles to effective compliance can be found.

We therefore believe that this is the necessary starting point for any analysis of compliance with IAHRS decisions within national contexts. Next, we analyze the evolutionary development of the implementation of international law in the jurisprudence of the Supreme Court of Justice of Argentina CSJNin general terms, in order to understand the origins of the current situation. Special attention will be given to the last constitutional reform, because it generated a paradigmatic shift with regard to how IAHRS decisions were treated in the courts.

In addition, the State had not fully carried out all of the reparations ordered in any of the verdicts. Applying the methodology used in the study published last year, we can classify the measures demanded of the State into six categories: Based on this classification system, we can observe that the State was ordered to pay compensation five times; to pay expenses in all six cases; to publicize the verdict in four cases; to publically recognize its responsibility in one instance; to modify its internal legislation twice —one of those times with more specificity than the other; and to investigate human rights violations and prosecute those responsible on four occasions.

This data can be seen graphically in the following table that we developed. The degree to which the State complies with the sentences can be determined arancibbia on this data. It can be observed that the State has begun to comply in some respects. On the other hand, the State has not complied with its obligation to prosecute those responsible for human rights violations in any of the cases in which this was ordered.

However, non-compliance with the obligation to conduct a judicial investigation is hardly surprising, given that it is the common denominator amongst all IAHRS member states that refuse to comply with IACHR Court decisions.

Of all of the measures imposed, this clearly represents the one that has the highest percentage of non-compliance, at This brings us to reinforce the hypothesis presented in the previous section: Since its establishment inthe CSJN has been able to directly apply international law to the cases that it has heard.

The Constitution empowered the CSJN and the lower courts to address cases governed by treaties with foreign nations Article 97 in the original text while establishing the original jurisdiction of the highest court over issues concerning foreign ambassadors, ministers, and consuls Article 98 in the text. With regard to the implementation of international treaties in particular, it is clear that—in addition to the aforementioned references—Article 31 of the Constitution recognized them as an integral part of the supreme law of the land.

The difficulty is found clabel the questionable hierarchy given to international law by Law In the aforementioned Article 21, this law established that national judges were obliged to apply norms in the following order of priority: However, issues could not always be easily resolved when the Argentine legislation came into conflict with the international obligations assumed by the State. Inthe CSJN created a doctrine to deal with such situations. The Flalo should have acknowledged the existence of contradictory normative foundations that prioritized both kinds of norms.


On the one hand, Law 48 placed national laws above treaties. At the same time, when the verdict was issued, there was an indisputable customary rule of international law that affirmed the hierarchical superiority of treaties over national laws.

By then, the CSJN understood that the inexistence of a normative basis for determining the hierarchy between treaties and laws was false — although that had also been the case in The court noted that in earlythe Vienna Convention on the Law of Treaties had entered into effect, and it required Member States to give preference to international law over national law.

After the aforementioned doctrine had been established, it remained unclear what position clvel court would take in a future conflict between an international treaty and the National Constitution. This conclusion vallo on Article 27 of the Constitution, which establishes the obligation to secure relationships with foreign States through the signing of treaties so as long as they conform to the principles of public rights enshrined in the Constitution. Still, the CSJN has not issued a categorical statement about the way in which a hypothetical conflict between national law and customary international law should be resolved.

Los Consejos De Guerra Durante La Última Dictadura Militar Argentina (–)

Thus, the doctrine of constitutional supremacy has been clearly established throughout the history of CSJN jurisprudence. However, this ruling is only an isolated case within CSJN jurisprudence. Perhaps the most relevant instance where a treaty was said to outrank the National Constitution can be found in The reform arose from a treaty signed between the Parties in However, this case is also atypical, and it occurred before the existence of a CSJN that could evaluate its validity.

By way of conclusion, it can be stated that, despite the existence of these two exceptions, it is clear that up until the constitutional reform, the CSJN gave higher status to the Constitution relative to any aracibia law. A logical consequence of this doctrine of constitutional supremacy was the recognition of the CSJN as the ultimate arbiter, in accordance with the Constitution.

However, the constitutional aracnibia may have weakened this seemingly rigid doctrine. The constitutional reform falo not only clwvel a constitutional basis claavel the supremacy of treaties over national laws, in the new Article 75 subpoint 22; it also established that 11 international human rights instruments, listed in the Constitution itself, take precedence over the Constitution.

Notably, the ACHR is the only international instrument that establishes the jurisdiction of an international court with the power to issue binding rulings on States. Therefore, we will proceed to analyze in detail the implications of the constitutional hierarchy given to the ACHR.

As presented in the Constituent Assembly debates, this expression refers to the fact that the treaties acquire this status in accordance with the reservations and interpretative declarations that the Argentine state made at the time of ratifying or approving them ARGENTINA,p. However, since the CSJN has attributed a different meaning to this expression; a meaning that is quite relevant and does not contradict the intentions of the Constituent Assembly.

A different interpretation—one that concluded that the declarations of arancbiia regulatory bodies do not determine the conditions of validity of the treaties—would make arncibia concession of constitutional status to the aforementioned Covenant nonsensical.

Surprisingly, the interpretation of this phrase presented some legal discrepancies, even though the intentions of the Constituent Assembly had been clear. This is undoubtedly the clause that has generated the most divergent views in doctrine and jurisprudence, since it has been understood to determine the hierarchical relationship between international instruments that have constitutional status and the Constitution itself.

Within the CSJN, conflicting criteria persist today with regard to how this phrase should be interpreted when resolving cases where the Constitution appears at odds with an international instrument that technically srancibia the same hierarchical status, such as the ACHR.

In particular, this law had restricted which articles of the Constitution could be reformed, noting that any unauthorized changes would be nullified. According to this opinion, treaties that had constitutional hierarchy would be constitutional norms of second rank, valid only when they did not contradict norms contained in the first part of the Constitution. Without losing sight of these two contradictory positions adopted within the CSJN, we find it necessary to examine the minutes of the Constituent Assembly.

Arancigia minutes do not indicate that claims were made as to the absolute compatibility between the constitutional clauses and all of the contents of the international treaties. As the Constituent Assembly argued, this could be considered the key to resolving any conflict that emerges between a treaty that has constitutional hierarchy and the Constitution itself. In light of this, the affirmation of the existence of hierarchical relationships between the Constitution gallo constitutionally-ranked treaties starts to lose importance, given that the constitutionally-established rule is that the norm that offers the greatest protection to the rights of the people is the one that should be applied.

It can be said that various international human rights instruments, including the Dallo, became recognized as norms of the highest rank in the Argentine legal system following the constitutional reform. Similarly, this reform gave the Clavwl Court special status, as it is the only international court whose decisions are acknowledged to be binding under a rule of constitutional standing.


Various judges have therefore invoked the jurisprudence of the IACHR Court, with the understanding that they were doing it to fulfill an international obligation.

On the other hand, there is clearly criticism within the CSJN regarding the way in which it has applied the case law of the IACHR Court, and international law in general, in cases related to the punishment of crimes against humanity. However, its conduct is far from showing the adoption of uniform criteria; rather, its ocnduct is characterized faloo contradiction: Argentina,the IACHR Court had ruled against the State, determining that the plaintiff had been denied the right of access to justice given the amount of money he owed after he lost a legal complaint against the State.

In that case, the IACHR Court had ordered the State to undertake various measures, including an investigation of the events surrounding the death of a juvenile, Walter Bulacio, after his illegal detention by the police. The Court had emphasized that, for this purpose, the fxllo of limitations that had been issued by the national courts were impermissible. At the end ofthe complaint filed against one of those accused of the Bulacio srancibia came before the CSJN so that it could rule on the statute of limitations that was issued by the lower courts.

The ruling was especially relevant aranciiba the members of the Court aeancibia not fully agree with the judicial criteria employed by the IACHR Court, and they listed several critiques of the procedure that was undertaken in that international forum. This represents an important difference compared to previous decisions, where the binding nature of the jurisprudence of the IACHR Court had not implied any need to go against the legal criteria employed by the CSJN itself.

However, the CSJN behaved in a completely contradictory way shortly thereafter. Argentinaa the IACHR Court established the obligation of the Argentine State to investigate the alleged torturing of a plaintiff in police headquarters and dlavel punish those responsible. This opinion qrancibia stated that the statute of limitations should be upheld since that the falpo did not constitute a crime against humanity. Clafel, the CSJN decided to require that the Executive Branch adopt adequate measures to protect the lives, health, and physical integrity of all of the prisoners, within twenty days.

This study provided a concise analysis of the evolution of CSJN case faklo with regard to the implementation of international laws. The goal was to examine the changes in doctrine undergone by the court, in order to understand its position with respect to the obligations emerging from the IAHRS.

The jurisprudential history showed a marked tendency toward the protection of the principle of constitutional hierarchy, followed by the self-recognition of the CSJN as the clave court. An important change in this legal paradigm occurred with the constitutional reform. Arancibiia concession of superior status to several international human rights instruments, including the ACHR, created an important opening for the fulfillment of international obligations—particularly those emerging from the IAHRS.

However, the CSJN has been inconsistent in its recognition of the binding nature of IACHR Court decisions, even though this obligation comes both from the authority of an international treaty and from a clause of the utmost rank within the Argentine legal system. As expressed at the beginning of this article, the greatest weakness of the Clwvel today is the failure of national courts to fulfill their obligation to prosecute those responsible for human rights violations, and the Argentine state is hardly the exception.

It can be debated as to whether the obligation imposed by the IACHR Court in this case was strictly to undertake legislative reform. By mid, the IACHR Court still had not issued any statement on its oversight of the status of compliance with this decision.

Beagle conflict

Another argument used by the Court in this case was that international treaties could be considered complex federal acts, given that both the Executive Branch and the Legislative Branch are involved in concluding them. The Court therefore maintained that the repeal of a treaty by only one of these branches of government would violate constitutionally conferred powers.

This created a five-judge majority that shared the same understanding of Article 75 subpoint The possibility that a clause modified by the Constituent Assembly could be declared null and void is far from being a mere hypothetical exercise.

Sentencia de 2 de febrero de Caso Garrido y Baigorria v. Sentencia de 28 de noviembre. Sentencia de 18 de septiembre. Sentencia de 11 de mayo. Caso Buenos Alves v. Sentencia de 2 de mayo. Sentencia de 30 de octubre. He is currently a doctoral candidate at the University of Reading School of Law.

Translated by Nora Ferm. Received in July