3
(merits and reparations, Judgment of Nov. 24, 2006); it then could and should have
elaborated on that reasoning in this Judgment on Interpretation, so as to provide clarification
on its position regarding paragraph 7(a) of the request for Interpretation of Judgment
submitted by the petitioners (on Feb. 5, 2007) in the cas d'espèce. For such purpose, there is
a key provision of the American Convention on Human Rights available to it, namely, Article 2
– which finds no correlative provision in the European Convention on Human Rights -, which
can promote the so-called “constitutionalization.”
9.
The "constitutionalization" of International Law (a new challenge presented to the
contemporary legal science) is, in my opinion, of much greater significance than the atomized
and varying “internationalization” of Constitutional Law (the latter already studied more than
five decades ago). Article 2 of the American Convention, under which State Parties are
required to bring their domestic legal system in line with the protection provisions of the
American Convention, does indeed open the door to a "control of conventionality" intended to
determine whether the State Parties have or have not effectively complied with the general
obligation laid down in Article 2 of the American Convention, as well as the one established in
Article 1(1).
10.
This allows a more cohesive international ordre public of respect for human rights. In
my opinion, the "constitutionalization" of human rights treaties thus goes hand in hand, pari
passu, with the control of their conventionality. And the latter type of control may be
performed by the judges of both domestic and international tribunals, given the interaction of
the international and domestic legal systems in this realm of protection.
11.
Next, I will, if I may, recall that, in my Separate Opinion in Case of the Dismissed
Congressional Employees(Aguado-Alfaro et al.) v. Peru (merits and reparations, Judgment of
Nov. 24, 2006), I stated that:
“As I have been maintaining for many years, effective recourses under domestic
law, to which specific provisions of human rights treaties refer expressly, are part of the
international protection of human rights.6 (...)
(…) the organs of the Judiciary of each State Party to the American Convention
should have an in-depth knowledge of and duly apply not only constitutional law but also
international human rights law; should exercise ex officio the control of compliance with
the constitution (constitutionality) and with international treaties (conventionality),
considered together, since the international and national legal systems are in constant
interaction in the domain of the protection of the individual. The Case of the Dismissed
Congressional Employees poses the question for future studies on the issue of access to
justice of whether a lack of clarity with regard to domestic recourses as a whole can also
lead to a denial of justice.
I would like to recall here that, in my separate opinion in the recent Case of
Goiburú et al. v. Paraguay (Judgment of September 22, 2006), I indicated that, in that
case, the Court had taken a step forward in the direction I had been advocating within
the Court for some time,7 by recognizing that this peremptory right also covers the right
of access to justice lato sensu; in other words, the right to full jurisdictional benefits.
(...)" (paras. 2-4).
6
.
A.A. Cançado-Trindade, The Application of the Rule of Exhaustion of Local Remedies in
International Law, Cambridge University Press, 1983, pages 279-287; A.A. Cançado-Trindade, O
Esgotamento de Recursos Internos no Direito Internacional, 2a. ed., Brasília, Editora Universidade de
Brasília, 1997, pp. 243 and 265.
7
.
Indeed, in my Separate Opinion in Case of Myrna Mack Chang v. Guatemala (Judgment of
November 25, 2003), I maintained that the right to law is necessary; in other words, the right to a
legal system that effectively safeguards fundamental human rights (paras. 9-55).