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

Article that discusses the process of constitutionalization of international law, based on the examination of the jurisprudence of the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACHR Court). Through a literature review, the objectives were to present the idea of constitutionalization of the international level, based on the examination of the precedents of regional protection systems; then, it is intended to analyze the consolidation of the use of the constitutional perspective by the ECtHR and the Inter-American Court in their judgments. As a hypothesis, it is believed that regional protection systems develop the constitutional approach to international law through their judgments in human rights matters. Filling gaps in international treaty 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 the law and its jurisdiction. As a result, it was found that the hypothesis of the was partially confirmed. By examining the cases, it is verified that each regional system for the protection of human rights has a specific particularity, in 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 that the constitutionalization of international law can be constructed from the ascending and descending perspectives, with the use of the sources of international law – customs, the jurisprudence of the regional courts themselves and the general principles of law – to fill the gaps in the international legal system.