5
13.
An aspect which in this respect should not pass unnoticed is that derogation
measures and limitations must not be inconsistent with the other obligations under
international law incumbent upon the State Party concerned: thus, neither derogation
clauses, nor limitation provisions, of a given human rights treaty, are to be interpreted
to restrict the exercise of any human rights protected to a greater extent by other
human rights treaties to which the State Party concerned is also a Party. Such
understanding finds support in the rule of international law whereby the interpretation
and application of a treaty cannot restrict a State's obligations ensuing from other
treaties on the subject - in the present case, human rights protection - to which the
State at issue is also a Party. In the present domain, international law has been made
use of in order to improve and strengthen - and never to weaken or undermine - the
protection of recognised human rights14.
14.
The specificity of the international law of human rights finds expression not only
in the interpretation of human rights treaties in general but also in the interpretation of
specific provisions of those treaties. Pertinent illustrations can be found in, e.g.,
provisions which contain references to general international law. Such is the case, for
example, of the requirement of prior exhaustion of local remedies as a condition of
admissibility of complaints or communications under human rights treaties; the local
remedies rule bears witness of the interaction between international law and domestic
law in the present domain of protection, which is fundamentally victim-oriented,
concerned with the rights of individual human beings rather than of States. Generally
recognised principles or rules of international law - which the formulation of the local
remedies rule in human rights treaties refers to, - besides following an evolution of
their own in the distinct contexts in which they apply, necessarily suffer, when inserted
in human rights treaties, a certain degree of adjustment or adaptation15, dictated by
the special character of the object and purpose of those treaties and by the widely
recognised specificity of the international law of human rights16.
b)
Procedural Issues.
15.
Both the European and Inter-American Courts have rightly set limits to State
voluntarism, have safeguarded the integrity of the respective human rights
Conventions and the primacy of considerations of ordre public over the will of individual
States, have set higher standards of State behaviour and established some degree of
control over the interposition of undue restrictions by States, and have reassuringly
enhanced the position of individuals as subjects of the International Law of Human
Rights, with full procedural capacity. In so far as the basis of their jurisdiction in
there was no room for implied limitations (limitations implicites); the view has ever since prevailed that the
only limitations or restrictions permissible are those for which the human rights treaty itself makes express
provision. The obiter dicta of the Inter-American Court of Human Rights in its seventh Advisory Opinion, on
the Enforceability of the Right to Reply or Correction (1986) reinforce the necessarily restrictive interpretation
of restrictions to the exercise of rights recognised in human rights treaties.
14
. Cf. A.A. Cançado Trindade, "Co-existence and Co-ordination of Mechanisms of International Protection of
Human Rights (At Global and Regional Levels)", 202 Recueil des Cours de l'Académie de Droit International de
La Haye (1987) p. 401.
15
. Cf., e.g., IACtHR, Advisory Opinion n. 11, on Exceptions to the Exhaustion of Domestic Remedies [cf.]
(1990).
16
. Cf. A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International
Law, Cambridge, University Press, 1983, pp. 1-443.
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