4
rule that has one meaning in “legislative” language does not have the same meaning
in “contractual” language.
The obligation to perform the contracts cannot be
expressed in “contractual” language; but if it is, it does not carry the meaning of a
rule. At best, it will be a clause wherein the two parties declare that the contracts
are binding upon them.
In general, in domestic legal systems a norm of superior rank can dictate that a
norm of lesser rank is binding. Thus, a constitution can stipulate that a law is
binding, and a law, in turn, can stipulate that contracts are binding. But a norm
cannot stipulate to its own binding nature because such a clause is not normative.
8.
An analogous situation occurs in international law. Let us take the example of
Article 26 of the Vienna Convention on the Law of Treaties. The first part of that
article states that “[E]very treaty in force is binding upon the parties to it”. A clause
of a convention stating that treaties are binding is not normative in nature; it is
simply recognition of a norm that exists on another plane. The clause "every treaty
is binding upon the parties to it” may carry the meaning of a norm in the realm of
“customary” language; however, such a clause does not carry normative meaning in
“treaty” language.
9.
The inference here is that Article 1(1) of the American Convention should be
interpreted as the Court interpreted it in its Advisory Opinion OC-4, that is to say as
an obligation not to discriminate. The interpretation of Article 1(1) as a rule imposing
a generic obligation to abide by the Convention robs that provision of any normative
meaning. Therefore, as it has no normative meaning, I have had no difficulty
contributing my vote to make this Judgment of the Court unanimous. However,
because I believe that everything said should have meaning, I wanted to add this
explanation. To say that ���the State violated the right of access to the courts
recognized in Articles 8(1) and 25 of the American Convention on Human Rights, in
relation to Article 1(1) thereof” means the same as “the State violated the right of
access to the courts recognized in Articles 8(1) and 25 of the American Convention
on Human Rights.”
Julio A. Barberis
Judge ad hoc
Manuel E. Ventura-Robles
Secretary