A Reflection on the 'Dualism within Dualism' in the Interaction between International Law and Domestic Law in Guatemala

Carlos Arturo Villagrán Sandoval

Melbourne Law School

In July 2016 the Guatemalan Constitutional Court delivered a first judgment making a positive obligation for the Guatemalan government to provide free quality bilingual – Mayan/Spanish – education in highly populated indigenous areas. The Court stressed that the right to free quality education is deeply connected to the right to development of an individual within his or her own culture [pages 45-48]. In doing so, the Court applied the doctrine of the Constitutional Block –Bloque de Constitucionalidad-, which interprets international human rights treaties such as the ILO Convention 169, the UN Declaration on the Rights of Indigenous Peoples, the Universal Declaration of Linguistic Rights, the International Covenant on Social, Economic and Cultural Rights and the Convention of the Rights of the Child as part of the Guatemalan Constitution [pages 48-49 of the judgment].

This constitutional interpretation represents a new development of the interaction between international law and constitutional law in Guatemala. This interaction can be defined, nevertheless, as “dualism within dualism”.

Traditionally, dualism refers to the notion that international law and domestic law are considered as separate legal systems and the need of legislative approval and publication of international norms and instruments for their application in domestic contexts. However, in Guatemala, dualism has also gained a new meaning. This new meaning refers to the recognition of different hierarchies for international law instruments when introduced into the domestic sphere, hence the term “dualism within dualism”. [Villagrán, page 13]

The evolution and recognition of different hierarchies of international instruments in the Guatemalan domestic legal context is the product of a tension and dialogue between the Guatemalan Constitutional Court and the Supreme Court of Justice. These judicial bodies have, on several occasions, interpreted differently the hierarchy and limits of international laws and their effects in domestic contexts. [Villagrán, page 17]

This tension and dialogue arose originally as a result of giving interpretation to the limits and effects of article 46 of the 1986 Guatemalan Constitution, which reads: “it is established as a general principle that in the matter of human rights, treaties and convention accepted and ratified by Guatemala have pre-eminence over internal law”. [See article 44 of the Guatemala Constitution in Spanish]

The first example of this dialogue and tension between the courts arose in 1990. In this first case, the Supreme Court analysed the application of the American Convention on Human Rights (ACHR) in Guatemala. In this first judgment, the Supreme Court interpreted the convention as superior to the Guatemalan Constitution. However, in reviewing the constitutionality of this judgment, the Constitutional Court struck down the Supreme Court’s views on the effects and hierarchy of the ACHR and presented its own.

The Constitutional Court’s decision emphasised that, although international human rights treaties are superior to legislation, they cannot be interpreted as superior to the constitution. The Constitutional Court stressed that by potentially giving superior status to international norms over the constitution, it would grant them overriding and derogatory prerogatives, thus, sacrificing the guarantee of constitutional stability and the principle of independence and separation of powers. [Villagrán, page 18]

In 2000, the Constitutional Court delivered a new judgment on the hierarchy of international law instruments. With this new interpretation, the court gave a differentiated hierarchy between international law instruments. Human rights instruments, such as the ACHR, were given direct effect and the capacity to revise domestic laws under it. [Villagrán, page 19] However, with regard to other international law instruments, such as those referring to regional integration, the Constitutional Court was of the view that such instruments are still under constitutional scrutiny and posterior constitutional review –inconstitucionalidad-. The result was, in 2005, the ruling of unconstitutionality of a regional treaty provision, declaring it without effect in Guatemala. [Villagrán, page 20]

In 2010, a new tension arose between the Supreme Court and the Constitutional Court. In this occasion, the Supreme Court reviewed the effects and compliance of judgments emanating from the Inter-American Court of Human Rights (IACHR). The Supreme Court declared that the IACHR’s judgments are self-executing and that domestic law, or the lack of it, cannot be an excuse for their non-compliance. However, the Constitutional Court reviewed, again, the constitutionality of the Supreme Court’s position.

The Constitutional Court interpreted that the Supreme Court was assuming powers that did not correspond to it. Moreover, the Constitutional Court was of the view that before complying with judgments of the IACHR, a proportionality test must be attained in order to review that the implementation of such rulings did not affect other human rights guaranteed in the Guatemalan Constitution. [Villagrán, page 21]

Between 2011 and 2012, in a series of judgments, the Constitutional Court recognised two new developments: firstly, the posterior non-constitutional review of other international law instruments, which already have been legally introduced in the Guatemalan context; and secondly, and more importantly, the application of the “Constitutional Block” in Guatemala. [Villagrán, page 23]

With regard to the posterior non-constitutional review of other international law instruments, this serves as a guarantee of Guatemala’s fulfilment of international obligations. However, this does not place these types of instruments in a similar category to the Guatemalan Constitution. Meanwhile, the Constitutional Block, as interpreted by the Constitutional Court, serves as a tool by which human rights instruments are read as part and in unison with the constitution. This interpretation grants special status to human rights instruments in the Guatemalan context, serving as additional platforms for the review of state authority, whether executive, legislative or judicial. [Villagrán, page 24]

Even further, in current times, the block has served to promote social and economic rights, as seen in the 2016 bilingual case. With this interpretation, not only did the Court give full effect to international norms, but also gave strength and application to the Guatemalan 1996 peace accords, which have been mainly ignored by the judiciary. [Villagrán, page 25]

To conclude, the historical development of the interaction between international law with domestic law in Guatemala can be defined as “dualism within dualism”. This is as a result of the variant hierarchies given to international law instruments. In this interpretation, ratified human rights instruments are given a special constitutional status, whilst other international instruments and rulings of international and supranational courts, although they may have certain privileged prerogatives, can still be limited by constitutional law.

This historical development was the result of a tension and dialogue between the Guatemalan Courts, and a steady aperture by part of the Constitutional Court towards international law. This progressive aperture of the Constitutional Court has led to a new kind of interpretation and activism as seen in this latest 2016 case.

Carlos Arturo Villagrán Sandoval is a PhD Candidate at Melbourne Law School. Before commencing his PhD, Carlos Arturo Villagrán Sandoval was Human Rights Adviser and State Council for the Guatemalan Government within the Project of Historical Memory and Human Rights for Peace of the United Nation Development Programme (UNDP).  He is currently a member of the Constitution Transformation Network. This post is a synopsis of a piece presented as part of a series of articles published by the Latin American Society of International Law’s Interest Group on the ‘New Relationship between International and Domestic Law’.