17
stricto sensu, to the judicial instance (both internal and international), but instead, it
also includes the right to jurisdictional benefits, and it is subjacent to interrelated
stipulations of the American Convention (such as Articles 25 and 8), besides reaching
the domestic legislation of the States Parties. 39 The right to access justice, provided
with its own judicial content, means, lato sensu, the right to obtain justice. Thus, it
comes all together as the right to the realization itself of justice.
52.
One of the main components of this right is precisely the direct access to a
competent tribunal, through an effective and prompt recourse, and the right to be
heard promptly by said independent and impartial tribunal, both at a national and
international level (Articles 25 and 8 of the American Convention). As I mentioned in a
recent work, we can visualize here a real right to Law, that is, the right to a legal
system – both nationally and internationally – that effectively protects the human
being’s fundamental rights.40
IX.
Epilogue: The Right to Law as an Imperative of the Jus Cogens.
53.
In the above mentioned Advisory Opinion n. 18, on the Juridical Condition and
Rights of the Undocumented Migrants (of 09.17.2993, the Inter-American Court
correctly stated that “the State must guarantee that the access to justice is not only
formal but also real,” (para. 126) which in my judgment, covers the mentioned access
through an effective recourse, all the guarantees of the due process of law, including
the faithful and final compliance of the judgment. The same Advisory Opinion n.18
stated with clarity that the principle of equality and non-discrimination currently make
up the domain of the jus cogens (paras. 111-127).
54.
The inseparability that I maintain between Articles 25 and 8 of the American
Convention (supra) leads to the characterization of the access to justice, understood as
the complete realization of the same as part of the domain of the jus cogens, that is,
the intangibility of all judicial guarantees in the sense of Articles 25 and 8 taken jointly.
There can be no doubt that the fundamental guarantees, common to International Law
on Human Rights and the International Humanitarian Law,41, have a universal vocation
when applied in all and any circumstances, as per an imperative law (belonging to the
jus cogens), and imply obligations erga omnes of protection.42
55.
After its historical Advisory Opinion n. 18 on the Juridical Condition and Rights
of the Undocumented Migrants, of 2003, the Court was able to and should have given
the Inter-American Institute of Human Rights (2003) pp. 53-83; A.A. Cançado Trindade, "Hacia la
Consolidación de la Capacidad Jurídica Internacional de los Peticionarios en el Sistema Interamericano de
Protección de los Derechos Humanos", 37 Magazine of the Inter-American Institute of Human Rights (2003)
pp. 13-52.
39
In that sense, cf. E.A. Alkema, "Access to Justice under the ECHR and Judicial Policy - A
Netherlands View", in Afmaelisrit pór Vilhjálmsson, Reykjavík, Bókaútgafa Orators, 2000, pp. 21-37.
40
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, volume III, Porto
Alegre/Brazil, S.A. Fabris Ed., 2002, cap. XX, p. 524, para. 187.
41
E.g., Article 75 of Protocol I (of 1977) to the Conventions of Geneva (of 1949) on International
Humanitarian Law.
42
Cf., also in that sense, e.g., M. El Kouhene, Les garanties fondamentales de la personne en Droit
humanitaire et droits de l'homme, Dordrecht, Nijhoff, 1986, pp. 97, 145, 148, 161, and 241.