8
access, stricto sensu, to the judicial instance (both domestic and
international), but it also encompasses
the right to the prompt
response by the judicial system, and it underlies in interrelated
regulations of the American Convention (as Articles 25 and 8), apart
from permeating the domestic law of the States Party. 181 The right of
access to justice, with its own legal content, means, lato sensu, the
right to obtain justice. It is thus configured as the right to the
realization of justice itself.
One of the main elements of that right is precisely the direct
access to a competent court through an effective and quick remedy,
and the right to be immediately heard by said court – independent and
unbiased – at both national and international level (Articles 25 and 8
of the American Convention). As I remarked in a recent work, here we
can see a real right to Law, that is to say, the right to a legal system
– both at national and international level – which effectively
safeguards the fundamental rights of the human being”182 (paras. 6162).
21.
Finally, in the same Separate Opinion in the case of Massacre de Pueblo Bello,
I repeated my understanding in the sense that the right to Law constitutes a “jus
cogens imperative:”
"The inevitable dissociation between Articles 25 and 8 of the
American Convention (supra) I support leads to characterize access to
justice as part of the jus cogens, understanding said access as the
complete realization of justice, that is, taking the intangibility of all
legal guarantees in the sense of Articles 25 and 8 taken jointly as part
of the jus cogens. There can be no doubt that the fundamental
guarantees, common to International Human Rights Law and
International Humanitarian Law,183 which are of universal vocation as
they apply in all and every circumstance, form an imperative right (of
the jus cogens scope), and entail erga omnes protection obligations.184
Subsequently to its historical Consultative Opinion No. 18 on
the Legal Status and Rights of Undocumented Migrants of 2003, the
Court could and should have already taken this other qualitative step
in its jurisprudence. I dare cherish hope that the Court shall do so as
soon as possible, if it really carries on with its vanguard jurisprudence,
- instead of trying to refrain it, - and it may extend the progress
attained with grounds and courage as with the above mentioned
Consultative Opinion No. 18 in the line of constant expansion of the jus
cogens material content” (paras. 64-65).
.
In that sense, cf. E.A. Alkema, "Access to Justice under the ECHR and Judicial Policy - A
Netherlands View", in Afmaelisrit pór Vilhjálmsson, Reykjavík, Bókaútgafa Orators, 2000, pp. 21-37.
181
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto
Alegre/Brasil, S.A. Fabris Ed., 2002, chapter XX, p. 524, para. 187.
182
.
E.g., Article 75 of Protocol I (of 1977) to the Geneva Convention (of 1949) on International
Humanitarian Law.
183
.
Cf., also in that sense, e.g., M. El Kouhene, Les garanties fondamentales de la personne en Droit
humanitaire et droits de l'homme, Dordrecht, Nijhoff, 1986, pp. 97, 145, 148, 161 and 241.
184