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Book review – Carolina León Bastos: La interpretación de los derechos fundamentales según los tratados internacionales sobre derechos humanos

Carolina León Bastos: La interpretación de los derechos fundamentales según los tratados internacionales sobre derechos humanos. Un estudio de la jurisprudencia en España y Costa Rica (English translation of the title: The Interpretation of Fundamental Rights in Accordance with International Human Rights Treaties. A Study of the Spanish and Costa Rican Jurisprudence). Madrid. Reus. 328 p. ISBN: 9788429016215 (in Spanish)

The question of how international law is incorporated into and applied in domestic legal orders is not only a question of high practical relevance; it is also, at least in many regards, still an under-researched subject. The book by Carolina León Bastos contributes to closing this gap by providing an in-depth analysis of how international human rights treaties have influenced the interpretation of domestic fundamental rights provisions in the Spanish and Costa Rican legal order.

The comparison of these two countries is particularly interesting because both the Spanish and the Costa Rican Constitution contain specific provisions which open the domestic legal order to international law in the area of human rights. While the Spanish Constitution stipulates that constitutional fundamental rights provisions “shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain” (Article 10(2)), the Costa Rican Constitution provides for the right to file constitutional complaints (recursos de amparo) with the Supreme Court of Justice regarding any right of “fundamental nature established in international instruments on human rights, enforceable in the Republic” (Article 48). The analysis proposed by this book allows thus for insights as to how such “gateway clauses” are interpreted and applied in practice and what their impact may be on the respective overall constitutional framework.

The book starts by setting out a comprehensive theoretical framework on the rules and principles of legal interpretation with an emphasis on the specificities of the interpretations of constitutions and human rights provisions. Subsequently, the author examines the two constitutional frameworks, in particular the two aforesaid “gateway clauses”. The key part of the book is, however, the in-depth analysis of the judicial practice, which is based on an exhaustive review of the Spanish and Costa Rican jurisprudence.

Overall, the author finds that international human rights treaties exert an increasing influence on the interpretation of the fundamental rights provisions of the two legal systems examined. The author identifies an increasing tendency to take into account international treaties and the related international jurisprudence at the domestic level, although Spanish courts seem, in general, more receptive to international legal norms than Costa Rican courts. Interestingly, Spanish courts have in some respects gone beyond what is required by Article 10(2) of the Spanish Constitution. Among other things, courts have interpreted this Article widely so as to comprise also certain ILO Conventions and have, in some cases, taken into account even those treaties that have not been ratified by Spain. As regards the Costa Rican Constitution, it appears that the vague wording of its Article 48 (“rights (…) of fundamental nature established in international instruments on human rights”) as well as the scope of the term “instrument on human rights” itself have led to some legal uncertainty and other legal problems. In this respect, the author proposes alternative language that would solve the problems arising in this context.

Overall, Carolina León Bastos’ work succeeds in unraveling not only the details of the case law integrating international treaty law into the domestic legal orders but also the legal dynamics and developments leading to the current state of the art. This book, which is based on her doctoral thesis presented at the Universidad Complutense de Madrid in 2006, will be of high value to constitutional lawyers, human rights lawyers, legal theorists and the international law community more widely.

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