4
protection of the human being; in its sixteenth and pioneering Advisory Opinion, on The
Right to Information on Consular Assistance in the Framework of the Guarantees of the
Due Process of Law (1999), which has inspired the international case-law in statu
nascendi on the matter, the Inter-American Court has clarified that, in its interpretation
of the norms of the American Convention, it should extend protection in new situations
(such as that concerning the observance of the right to information on consular
assistance) on the basis of pre-existing rights. The same vision has been propounded
by the Inter-American Court in its subsequent forward-looking eighteenth Advisory
Opinion, on the Juridical Condition and Rights of Undocumented Migrants (2003).
11.
There is a converging case-law of the two regional Human Rights Courts - and
indeed of other human rights international supervisory organs - on this issue. Thus, the
European Court of Human Rights has reiteratedly pronounced to that effect8; in the
Loizidou versus Turkey case (1995), for example, the European Court expressly
discarded undue restrictions which would not only "seriously weaken" its role in the
discharge of its functions but "would also diminish the effectiveness of the Convention
as a constitutional instrument of European public order (ordre public)"9. The InterAmerican Court of Human Rights, on its part, has likewise repeatedly stressed the
object and purpose of human rights treaties and the objective character of the
obligations ensuing therefrom10, as well as the special character of human rights
treaties, as distinguished from multilateral treaties of the traditional type11.
12.
Such convergence of views of the two regional Human Rights Courts on the
fundamental issue of the proper interpretation of human rights treaties naturally ensues
from the overriding identity of the object and purpose of those treaties. General
international law itself bears witness of the principle (apparently subsumed under the
general rule of interpretation of Article 31 of the two Vienna Conventions on the Law of
Treaties) whereby the interpretation is to enable a treaty to have appropriate effects12,
- a principle which has been resorted to against eventual calls for an unduly restrictive
interpretation. There is a jurisprudence constante pointing towards the restrictive
interpretation of provisions which limit or restrict the exercise of recognised human
rights13.
the Due Process of Law, of 01.10.1999, pars. 114-115, and Concurring Opinion of Judge A.A. Cançado
Trindade, pars. 9-11; IACtHR, case of the "Street Children" (Villagrán Morales and Others versus Guatemala),
Judgment (on the merits) of 19.11.1999, pars. 193-194; IACtHR, case Cantoral Benavides versus Peru,
Judgment (on the merits) of 18.08.2000, pars. 99 and 102-103; IACtHR, case Bámaca Velásquez versus
Guatemala, Judgment (on the merits) of 25.11.2000, Individual Opinion of Judge A.A. Cançado Trindade,
pars. 34-38; IACtHR, case of the Community Mayagna (Sumo) Awas Tingni versus Nicaragua, Judgment (on
the merits and reparations) of 31.08.2001, pars. 148-149; IACtHR, case Bámaca Velásquez versus
Guatemala, Judgment (on reparations) of 22.02.2002, Individual Opinion of Judge A.A. Cançado Trindade,
par. 3.
8
. For example, in its judgments in the Wemhoff (1968), Belgian Linguistics (1968), Golder (1975), Ireland
versus United Kingdom (1978) and Soering (1989) cases, among others.
9
. ECtHR, Loizidou versus Turkey case (preliminary objections, Judgment of 23.03.1995, par. 75.
10
. IACtHR, Advisory Opinions n. 1, on "Other Treaties" Subject to the Advisory Jurisdiction of the Court
(1982), and n. 3, on Restrictions to the Death Penalty (1983), among others.
11
. E.g., inter alia, IACtHR, Advisory Opinion n. 2, on Effect of Reservations on the Entry into Force of the
American Convention (1982).
12
. Cf., e.g., IACtHR, Advisory Opinion n. 4, on the Proposed Amendments to the Naturalization Provisions of
the Constitution of Costa Rica (1984).
13
. Thus, in its judgment in the Golder case (1975), the European Court of Human Rights clearly stated that
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