4
15.
The powers of a jurisdictional body derive, necessarily, of the norm that
creates, organizes, and governs it. This link between a juridical norm, on one part,
and jurisdiction, on the other –expression, in the jurisdictional order, of the
principle of legality--, constitutes a precious guarantee for the defendants and a
natural and necessary element of the State of Law. It would be inadmissible and
extraordinarily dangerous for people that jurisdictional bodies intend to “construct”,
as of its will, the competence it considers convenient. This “voluntarism creator of
jurisdiction” would put the body of rights and liberties of human beings in risk and
would constitute a form of tyranny not less damaging than the one exercised by
other bodies of the public power. It is possible that it be advisable to, pursuant to
the evolution of the facts or the law, extend the jurisdictional realm of a body of
this nature, so that it may better serve the satisfaction of social needs. But this
extension must operate as of the normative reform and not simply from the
voluntary –and essentially arbitrary—decision of the jurisdictional body.
16.
Consequently, a tribunal –-and specifically, the Inter-American Court-- must
explore the normative universe according to which it must discipline its
performance, the provisions that grant or deny it attributions to know of certain
disputes. This is the first matter analyzed and solved by the jurisdictional body that
receives a claim of justice. The matter does not present greater complications when
there is a clear and emphatic norm that directly and explicitly grants these
attributions. Obviously, there also aren’t any when the norm denies this possibility
or grants it to a body different to the one that is analyzing and deciding on its own
competence.
17.
There is a third situation, that presents itself when the stipulations of the
legal code on human rights contains a regimen on the control of a subject by the
international bodies of protection, but the formula they use is not in itself, prima
facie, sufficiently explicit or univocal or differs from that used in other cases. In this
hypothesis, the tribunal must interpret the provision and find its meaning; I am not
saying, of course, that it must “complete” the legal code and create, based on its
will or imagination, a competence that is not included, at all, in the norm on the
control of conventionality of State acts. Its power does not go so far: it must only
untangle the sense of the obscure or elusive provision and establish, through that
logical-juridical process, its sense and scope. This is what the Inter-American Court
does with regard to the Convention of Belém do Pará and its application to the
present case.
18.
It is desirable that the instruments of the American corpus juris include
unequivocal orders, as clear as possible, whose interpretation does not require
greater effort by the applicator of the norm, and even for any common reader. It is,
in the end, the transparency of the meaning of the norm, in favor of all those
obliged or favored by it, a transparency convenient at all levels of juridical
regulation. However, in our specific corpus juris there is a diversity of formulas to
refer to the international responsibility of the States and the corresponding control
when there is a failure to comply with the duties assumed. Each treaty employs its
own twist; each one requires, therefore, an autonomous effort of interpretation,
which may not simply apply the reasoning and conclusions that supported, in this
matter, the understanding of other texts deposited in previous instruments.
19.
It is convenient to revise the form in which the treaties that include
provisions on international control refer to the matter in question, in the
understanding that there are others that do not refer to it. From this revision, one
can conclude the existence of a great diversity of expressions used to refer to the
same matter and regulate it in an essentially coincident manner. In this subject it is
also important to mention the existence of an additional distinction, that will be