5
detailed hereinafter: while certain legal systems –for example, the ACHR—do not
include restrictions to the knowledge of the Court, ratione materiae, others limit it
to certain provisions –like, for example the Protocol of San Salvador.
20.
I do not ignore the diversity of circumstances that could have surrounded
the preparation of each international instrument, nor do I lose sight of the
vicissitudes that normally underlie each selection of texts, which involves a complex
juridical and political decision, after a process of reflection and negotiation. Beyond
the evident variety of expressions, what is important is the progress each
instrument has meant for the protection of human rights –which is far away from
its port of arrival—and the need to consider both the totality as well as each of its
components in such a way that leads to that protection and expresses, from a
certain perspective consistent with its specialty, new steps toward a shared
destination.
21.
As is natural, the main orders regarding the matter that now interests me is
found in the ACHR and in the Statutes of the Inter-American Court, which
acknowledges competence to the Court –-in the adjudicatory order, besides doing it
in the consulting aspect-- to solve any matter regarding the interpretation and
application of the central treaty of the American corpus juris (Articles 62 of the
ACHR and 1 of the Statute). There is no doubt in this regard, although matters
have been presented and solved in a timely manner by the Court, with regard to
the competence of the latter due to conflicts regarding a State that decides to back
out from the adjudicatory competence through a unilateral act –that does not
constitute a claim against the Convention—and regarding the power of the Court to
supervise compliance of its binding determinations.
22.
The Protocol of San Salvador refers to this matter in different terms. It could
have done it in the same form as the ACHR. With all, those terms do not require a
greater effort by the interpreter. In effect, Article 19(6) states that the violation of
Articles 8(a) (right to trade-unions), and 13 (right to an education) could give
place, through the participation of the Inter-American Commission of Human
Rights, and when it proceeds from the Inter-American Court of Human Rights, to
the application of the system of individual petitions regulated by Articles 44 through
51 and 61 through 69 of the American Convention on Human Rights.”
23.
The use of the expression “could give place” is not pure luck, and neither is
the restriction of control of the suppositions considered in those two precepts of the
Protocol. It is advisable to expand the scope of the matters that may be heard by
the Court, even when it is precise to observe that the number of cases of violations
of norms of the Protocol that can be analyzed through the mere and simple
application of the ACHR are not few, matter which I will not go into now. Whichever
the case, the conviction that, despite the course of “could give place to”, the Court
is competent to know of these violations when that claimed by the Commission
pursuant to the regimen of ordinary legal standing included in the American
Convention prevails.
24.
The Inter-American Convention to Prevent and Punish Torture does not
employ, when referring to this matter, the expressions used by the ACHR or those
used by the Protocol of San Salvador. It chooses another formula –thus, a third
formula--, less explicit than those, that calls for a certain effort of interpretation. It
states, referring to the acts of torture, that “after all the domestic legal procedures
of the respective State and the corresponding appeals have been exhausted, the
case may be submitted to the international for a whose competence has been
recognized by that State.” (Article 8) Even when it does not specifically mention the
Commission or the Court, nor does it invoke any norm – material or procedural – of
the ACHR, the general interpretation accepts that they may intervene in said