Conventionality control (control de convencionalidad) is a legal mechanism that verifies the compliance of states' domestic regulations with the provisions of the American Convention on Human Rights (ACHR) and its jurisprudence. This mechanism ensures that the domestic legal system conforms to international provisions and principles, without overriding these precepts.

Conventionality control is executed at both the international and domestic levels. At the international level, control is exercised by the Inter-American Court of Human Rights (IACHR), which reviews specific cases submitted to its knowledge as a court of last resort. Locally, the Constitutional Chamber of Costa Rica (Sala Constitucional), among other functions, holds the authority to declare the unconstitutionality or unconventionality of domestic rules.

Now, a fundamental question arises: must the Public Administration also perform conventionality control? The IACHR established an important precedent in the Gelman v. Uruguay case, which empowers all public authorities, and not solely judicial ones, to exercise conventionality control. Furthermore, through the case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru, the IACHR clarifies that no specific system exists to execute this control. In this manner, each State may freely determine the method through which it ensures international provisions prevail.

Consequently, the Public Administration is obligated to exercise conventionality control in its administrative actions. Although it is clear that the formal declaration of unconventionality regarding regulations does not fall within its scope of authority, it must nonetheless adapt its actions to meet international law standards.

Furthermore, the Public Administration must exercise this control ex officio; that is, “within the framework of their respective competences and the corresponding procedural regulations”. Unlike the IACHR, administrative authorities do not have to wait for private individuals to bring a specific case to their attention; instead, they are called to act proactively.

This interpretation was confirmed by the Attorney General's Office (Procuraduría General de la República - PGR) in response to a consultation made by the Municipal Council of Coto Brus. The PGR indicated that, although administrative authorities lack the competence to declare regulations null and void under a justification of unconventionality, they are indeed obligated to interpret and resolve petitions regarding their administered parties (administrados) in accordance with the parameters established by the jurisdictional and advisory criteria of the IACHR.

In that regard, conventionality control is not alien to the legal framework governing the Administration; rather, it forms part of its general duty to safeguard the public interest of administered parties and respect the principles governing the administrative function.

Conventionality control is not merely a legal ideal, but a means that ensures human rights prevail across all decisions of the State. In conclusion, the Public Administration is obligated to exercise conventionality control when executing its routine duties, ensuring that its administrative actions remain subordinate to international law.

Should you require advice on administrative law and/or compliance with international and constitutional standards in legal proceedings, do not hesitate to contact our Public Law team.

[1] IACHR Judgment No. 174: Gelman v. Uruguay, February 24, 2011, paragraph 239.

[2] IACHR Judgment No. 174: Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru, November 24, 2006.

[3] IACHR Judgment No. 174: Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru, November 24, 2006, paragraph 128.

[4] PGR Legal Opinion PGR-C-036-2024 by the Attorney General's Office, March 4, 2024.