4
commit themselves to edit legislation and to develop actions conducive to an
overall and effective respect for the Convention.421
7.
A good example of jurisprudence is case of The Last Temptation of Christ
(Olmedo Bustos and others v. Chile. Judgment of February 5, 2001. Series C No.
73), as it is observed from the arguments, in regard to the exact interpretation
and reach that must be given to Article 2 of the American Convention:
89. The Court recalls that on January 20, 1997, the Court of Appeals of
Santiago delivered a judgment in the case, which was confirmed by the
Supreme Court of Justice of Chile on June 17, 1997. Because it did not
agree with the ground for these judgments, the government of Chile
submitted to Congress, a draft constitutional reform to eliminate
cinematographic censorship on April 14, 1997. The Court evaluates and
underlines the importance of the Government’s initiative in proposing
said constitutional reform, because it may lead to adapting
domestic laws to the content of the American Convention with
regard to freedom of thought and expression. However the Court
observes that, despite the time that has elapsed since the draft reform
was submitted to Congress, the necessary measures have not yet been
adopted to eliminate cinematographic censorship, as established in Article
2 of the Convention, and thus allow exhibition of the film “The Last
Temptation of Christ.” (Emphasis added)
8.
The concurring opinion from Judge Cançado Trindade in that case,
contains even sharper statements:
“4. [...] The American Convention, together with other human rights
treaties, "were conceived and adopted on the basis of the
assumption that the domestic legal orders ought to be harmonized
with the conventional provisions, and not vice versa” (paragraph
13). Definitively, I warned that, “[I]t cannot be legitimately expected,
that such conventional provisions be ‘adapted’ or subordinated to
the solutions of constitutional law or of internal public law, which
vary from country to country [...]. The American Convention, as
well as other human rights treaties, seek, a contrario sensu, to
have in the domestic law of the States Parties, the effect of
improving it, in order to maximize the protection of the recognized
rights, bringing about, to that end, whenever necessary, the
revision or revocation of national laws [...] which do not conform
to its standards of protection.” (paragraph 14) (Emphasis added)
9.
In regard to the fourth item in paragraph 40 of the same vote, Judge
Cançado Trindade states:
[T]he very existence and applicability of a norm of domestic law
(be it infra-constitutional or constitutional), can, per se engage the
responsibility of a Party State under a human rights treaty.
(Emphasis added)
421
Cf. Case of “The Last Temptation of Christ” (Olmedo Bustos et al) v. Chile. Merits,
Reparations, and Costs. Judgment of February 5, 2001. Series C No. 73, para 85 and following.
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