—Lucas Catib de Laurentiis, Professor at São Bernardo do Campo Law School and researcher affiliated with FGV Direito SP[1]
“And if one day or one night a demon were to slip into your loneliest solitude and say to you: This life, just as you are living it now and as you have lived it, you must live it once more and countless times more.” Nietzsche described here the image of eternal recurrence as a moment of suspension in which everything that was, is, and will return indefinitely, without novelty, without redemption, without escape. For those who lived without regret, eternal return would be the gateway to happiness; for all others, a condemnation to see themselves as “dust of dust.”
In Brazilian and Latin American legal thought, the eternal return manifests itself as a doctrinal compulsion toward the new, toward the emancipation promised by words full of passion, and toward the belief that intellectual elites must guide mere mortals through the labyrinths of ordinary life. Thus arises the need to reinvent, with increasing speed, instruments capable of overcoming the shortcomings of local politics through normative transcendence. The doors to emancipation have already been promised by deliberation, values, and by neoconstitutionalism. Today, the role of normative emancipator is assumed by conventionality control (CC) — the obligation imposed on domestic judges to set aside national law that conflicts with the American Convention on Human Rights or with decisions of the Inter-American Court of Human Rights (IACtHR). This post argues that CC lacks the theoretical and normative foundations its proponents claim that is possesses, and that Brazil’s latest move to codify it (through Recommendation 168/2026) is the latest chapter in a recurring cycle without a solid legal grounding.
As just mentioned, the most explicit expression of this cycle is Recommendation 168/2026, which declares that “every national judge is also an inter-American judge” and treats consideration of Inter-American Court decisions as requiring “mandatory compliance.” This is the latest attempt to impose the Inter-American Court upon domestic legal orders as the ultimate arbiter of rights in the Americas. Two main arguments advanced by its Brazilian defenders will be examined here.
The Theoretical Return
The argument in favor of CC is presented in three points. The first stems from ratification: Brazil exercised sovereignty by acceding to the Inter-American Convention, and fulfilling the obligations arising from it would therefore be an expression of that same sovereignty, not its negation. This reasoning hides a logical leap.
It is argued that recognizing the Inter-American Court’s jurisdiction would allow these claims, for the State must act in accordance with international treaties. But even if one accepts that international obligations can limit sovereignty, no conclusion can be drawn from this regarding which system of normative control should operate domestically. Limited sovereignty and conventionality control are entirely distinct matters, for a State that resists conventional obligations can be pressured through instruments unrelated to the invalidity of domestic norms: diplomatic sanctions, economic embargoes, political pressure, and exclusion from international organizations. Article 9 of the OAS Charter expressly provides for the suspension of member states, a mechanism already applied to Honduras in 2009. Venezuela denounced the American Convention on Human Rights in 2012 and remained subject to the obligations of the OAS Charter, answering to the Inter-American Commission, not the Court. These examples show that international law already has mechanisms to respond to non-compliance. None of them operates through the invalidation of domestic law. The confusion between international sanctions and the power to review domestic law is the central fallacy.
The second argument concerns the theoretical status of the monism-dualism distinction. For defenders of CC, international human rights law and domestic law are inseparable, such that resisting CC would amount to defending an archaic “dualism,” supposedly already overcome by the humanization of international law. This reconstruction is mistaken. For Kelsen, the monism-dualism debate was not a symmetrical choice. Dualism was, in his view, a logical impossibility, since two normative systems cannot coexist as independent orders regulating the same subjects without generating insoluble contradictions. What remained was the choice between two forms of monism — State and international — depending on factors external to law. Monism was therefore an epistemological thesis regarding the necessity of a unitary perspective for law to be cognizable as a science. It was never a claim regarding the automatic hierarchy of international law over domestic law in concrete disputes.
From this follows the most persistent confusion in this debate: one cannot equate the primacy of international law at the inter-state level — which no one disputes — with direct primacy over domestic law at the domestic level, which is an entirely distinct issue. No dualist would deny that before international courts, international law prevails over any domestic provision. What is denied is that this inter-state primacy automatically becomes a rule of application by national judges, independent of any mediation by domestic law itself. This mediation is precisely the core of the dualist position and it has been repeatedly confirmed by the jurisprudence of the International Court of Justice, which has consistently treated domestic law as a matter of fact, rather than as norms to be directly nullified by international law.
The argument of CC’s proponents, therefore, falls foul of a logical leap: they infer from an epistemological thesis on the unity of law a normative conclusion regarding the hierarchy of sources applicable by domestic bodies. That law should be conceived as a coherent system does not imply that any international norm produces direct effects at the domestic level by its own force. This proposition depends on conditions — constitutional, legislative, and jurisprudential — that vary from state to state and are provided exclusively by the domestic legal system itself. Without this, the theory of conventionality control hangs in a vacuum, like a ghost trapped in the cycle of eternal return.
The Normative Return
The argument here shifts to jurisdiction: it is no longer merely a matter of demonstrating that CC is the correct mode of control, but of showing that the application thereof constitutes a functional duty of specific State bodies. It is argued that this obligation extends beyond judges to any public authority, including administrative officials, who should conduct a conventionality review ex officio in every decision that contravenes the norms of the American Convention or the IACtHR jurisprudence. This argument presupposes that the creation of new control instruments would strengthen rights protection. What occurs here is a double reversal: first, because those who speak of control must question the basis for its use before reaching conclusions about its application; second, because a control technique is a formal instrument that can be used both to protect and to violate rights.
Every norm establishing a right or a duty must be grounded in a norm that authorizes the exercise of this power. Norms that authorize the exercise of control also share this nature: by authorizing an authority to “undo” another norm, they redistribute rights stemming from that exercise. “Negative legislation” is, therefore, first and foremost, stil legislation, and one cannot enact legislation without an authorizing provision. Due to that fact, proponents of CC seek to find a normative authorization in three sets of norms.
The first is found in Articles 1 and 2 of the IACHR. However, Article 2 provides that States must adopt the necessary measures “in accordance with the constitutional norms” of each State, which means that the adaptation of domestic law to the Convention must occur through mechanisms provided by the domestic legal system itself, not by the decision of agents whom the legal system has not empowered to perform this task.
The second is found in Articles 26 and 27 of the Vienna Convention on the Law of Treaties. These provisions however merely state that treaties must be performed in good faith and cannot be breached on grounds of conflict with domestic law — but do not create a special normative hierarchy or grant domestic bodies authority to disapply norms.
The third is a 1975 decision of the French Constitutional Council. But that comparison is inappropriate: under French law, the 1958 Constitution already conferred supra-legal status on treaties, the model of review was exclusively preventive, and treaties were necessarily constitutional. None of these conditions exists in Brazil. Importing the French reasoning without importing its underlying assumptions is an error in comparative law, not a legal argument.
Resorting to the “pro persona” principle as an autonomous basis for conventionality review does not resolve the problem either; it exacerbates it. This principle finds no express normative basis in any binding international human rights treaty. Its formulation is doctrinal and jurisprudential, and therefore incapable of creating powers that do not exist as well as incapable of compensating for the absence of a normative basis for review. Jurisdiction cannot be presumed nor derived from indeterminate principles: it must be provided for in a clear and explicit rule of recognition.
Even if the “pro persona” principle were accepted as a valid guideline, it cannot resolve the fundamental question in any conflict of rights: who should be protected? The principle protects “the person” but remains silent on which person should be the beneficiary when two rights-holders conflict. Arguing that control must be grounded in “pro persona” is tantamount to saying that whoever has the right must win, a circular argument that leads us nowhere.
Time and Democracy That Do Not Return
The time of eternal return is circular and infinite. In it, everything always returns the same, with the same form, the same weight, and the same promise that, this time, it will be different. Human life and democracy, on the contrary, are linear and finite. In democratic politics, every moment spent in idle doctrinal cycles is an irrecoverably loss in relation to the real work of defining rights, building institutions, and holding power accountable.
Trapped in an endless cycle of grand normative promises, those who continue to defend CC fail to realize that each turn irreversibly diverts democratic energy from the substantive political and legislative work through which rights are actually defined, protected, and made enforceable. Without theoretical or normative foundations, what remains is repetitive compulsion, reaffirmed by inadequate instruments — administrative Resolutions and Recommendations — and by a magical instrument that promises to resolve through normative means what democratic politics has failed to resolve through debate, conflict, and agreement. The real problems of democracy are not resolved through the creative jurisprudence of courts that proclaim themselves the ultimate interpreters of human rights. They are resolved at the concrete level of institutions, jurisdictional rules, deliberative democracy, and decisions that can be challenged, reviewed, and replaced by elected representatives before their citizens.
The curse of eternal return is broken only when one abandons the enchanted circle and returns to the questions that both returns analyzed here persistently sidestep: what is the content of rights? Who has the authority to define these? By what procedure? With what limits? These questions are dry and technical. They lack the brilliance of redemptive formulas or the appeal of emancipatory promises. But they are the only ones that a real, finite, and linear democracy can answer. A democracy that delegates to supranational courts the authority to define the content of rights, the scope of jurisdiction, and the limits of political power has not resolved its problems — it has outsourced them. That is not emancipation. It is abdication.
Suggested citation: Lucas Catib de Laurentiis, The Eternal Return of Conventionality Control in the Americas, Int’l J. Const. L. Blog, June 3, 2026, at: http://www.iconnectblog.com/the-eternal-return-of-conventionality-control-in-the-americas/
[1] PhD and LL.M. in Constitutional Law from the University of São Paulo (USP), with research appointments at the Albert-Ludwigs-Universität Freiburg and the Max Planck Institute for the Study of Crime, Security and Law. OrcID: https://orcid.org/0000-0001-5596-6695.