**12. Pre-eminence of the international norm**

The incorporation of a treaty into domestic law may present doctrinal conflicts with respect to its consequences on the previous domestic law and on the effect that the law derived from the same treaty may have on domestic law. However, in matters of human rights the fundamental criterion is found in the Political Constitution itself, in the Bases of the Institutionality, that is, if the purpose of the Fundamental Charter is to protect the individual and for this purpose it establishes a series of duties of the State and guarantees for the rights of individuals, the international norms that are compatible with this mandate will take precedence over any other national norm.

The Treaty that modified or repealed previous laws dealing with the same subject matter according to Articles 32 N° 17 and 50 N° 1 of the Constitution, in which the participation of the co-legislating bodies that determine the applicability and incorporation into domestic law of the international treaty, giving preeminence to the international norm, is involved.

The problem arises with respect to laws that require a special quorum, different from the one required to approve a treaty as provided in Article 50 N° 1 of the Constitution. However, Article 50 N° 1 of the Constitution does not establish any distinction in this matter, and therefore no distinction should be made. Thus, the incorporation of international norms made in accordance with the Constitution produces the inapplication of the internal norms that contravene them.

With respect to the relationship between international norms validly incorporated into domestic law and subsequent laws, they are governed by the principle of good faith and compliance with the commitments acquired, which are principles of jus cogens codified by the Vienna Convention on the Law of Treaties, so that compliance with treaties cannot be altered by a law or a subsequent constitutional reform, a principle set forth in Article 27 of the Vienna Convention on the Law of Treaties which determines: "a party may not invoke the provisions of its domestic law as justification for non-compliance with a treaty". Thus, when faced with a valid treaty incorporated into domestic law and a subsequent valid domestic law, the ordinary judge must give preferential application to the treaty, otherwise the judge would fall into breach of the domestic legal system and its rules of application and in matters of human rights, in breach of the provisions of Article 5 of the Constitution, in addition to incurring the State's international responsibility. The Commission of Studies of the New Constitution itself, in its session No. 367 of May 1978, in recognizing the superiority of treaties over the law, taking up what had already been expressed by Commissioners Alejandro Silva Bascuñan and Jaime Guzmán Errázuriz in the session of June 20, 1974, recognized the preeminence of the international norm. Furthermore, the non-derogability of the treaty by law is an essential characteristic of its incorporation into the national legal order and this does not mean the nullity of the subsequent law contrary to the treaty, as pointed out by the Commission of Studies of the New Constitution in session 371, page 2587 and 2588.
