-5ways of accepting the contentious jurisdiction of the Inter-American Court that is
numerus clausus (other restrictions not established in Article 62 of the Convention
are inadmissible),11 rather than the process of attributing international responsibility
to the defendant State.
12.
This attribution should take into account the factual circumstances which vary
from case to case. It is not, therefore, a mechanical process that can be regulated by
numerus clausus. On this issue, I observed in my above-mentioned separate opinion
in the Mapiripán Massacre case (2005) that:
"International responsibility is attributed to a State following prudent assessment by
members of the competent judicial body, after they have carefully determined the facts
of each specific case; it is not merely the mechanical application of specific formulations
of precepts that are, in any case, of a supplementary nature" (para. 10).
13.
With these brief prior considerations in mind, I will now continue on to the
substance of my observations in this separate opinion concerning the correct decision
made by the Court in the Pueblo Bello Massacre case to rule on the violations of
Articles 8 and 25 of the American Convention together, in keeping with its consistent
case law. My reflections in this respect encompass the following aspects: (a) Articles
25 and 8 of the Convention at the ontological and hermeneutic levels; (b) the
genesis of the right to an effective recourse before the national courts in the corpus
juris of international human rights law; (c) the irrelevance of the allegation of
difficulties arising from domestic law; (d) the right to an effective recourse in the
case law of the Inter-American Court; (e) the indivisibility of access to justice (the
right to an effective recourse) and the guarantees of due process of law (Articles 25
and 8 of the American Convention); (f) the indivisibility of Articles 25 and 8 of the
American Convention in the consistent case law of the Inter-American Court; (g) the
indivisibility of Articles 25 and 8 of the American Convention as an inviolable advance
in case law; (h) overcoming the difficulties concerning the right to an effective
recourse in the case law of the European Court; (i) the right of access to justice lato
sensu; and (j) the right of access to justice as an imperative of jus cogens.
II.
Articles 25 and 8 of the American Convention at the
ontological and hermeneutic levels
14.
It is axiomatic that each of the rights protected by the human rights treaties
has its own content, from which the different formulations arise - as is the case of
Articles 25 and 8 of the American Convention. Here, we are on an essentially
ontological level. Although they are endowed with their own material content, some
of these rights have had to undergo a long jurisprudential evolution until they
achieved autonomy. This is the case, for example, of the right to an effective
recourse in Article 25 of the American Convention and Article 13 of the European
Convention on Human Rights (cf. infra). It is also the case of Article 8 of the
American Convention and Article 6 of the European Convention.
15.
Nowadays, the meaning given to the treaty-based provisions is the result of
the development of case law and they are understood and should be appreciated in
light of this development, in keeping with the principle of inter-temporal law - and
11
.
Cf. IACourtHR, judgments in Hilaire, Benjamin et al., and Constantine et al. v. Trinidad y Tobago (of
September 1, 2001), separate opinions of Judge A.A Cancado Trindade, para. 21-33 (in the three opinions).
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