3
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. CançadoTrindade, 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).