covers the right of access to justice lato sensu; in other words, the right to full
jurisdictional benefits. In the words of the Court:
“(...) Access to justice is a peremptory norm of international law and, as such, gives rise
to obligations erga omnes for the States to adopt all necessary measures to ensure that
such violations do not remain unpunished, either by exercising their jurisdiction to apply
their domestic law and international law to prosecute and, when applicable, punish those
responsible, or by collaborating with other States that do so or attempt to do so” (para.
131).
5.
I had argued precisely in the same sense in my extensive separate opinion
(paras. 63-65)4 in the Pueblo Bello Massacre v. Colombia (judgment of January 31,
2006), in which I also covered other aspects: (a) Articles 25 and 8 of the American
Convention at the ontological and hermeneutic levels (paras. 14-15); (b) the genesis
of the right to an effective domestic recourse in the corpus juris of international
human rights law (paras. 16-21); (c) the right to an effective recourse in the case
law of the Inter-American Court (paras. 24-27); (d) 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)(paras. 28-34); (e) the indivisibility of
Articles 25 and 8 of the American Convention in the consistent case law of the InterAmerican Court (paras. 35-43); (f) the indivisibility of Articles 25 and 8 of the
American Convention as an inviolable advance in case law (paras. 44-52); (g)
overcoming the difficulties concerning the right to an effective recourse in the case
law of the European Court (paras. 53-59); and (h) the right of access to justice lato
sensu (paras. 60-61).
6.
In this judgment in the Dismissed Congressional Employees case, the Court
has once again confirmed its consistent case law by considering Articles 8 and 25 of
the American Convention in an indivisible and interrelated manner, in combination
with Articles 1(1) and 2 of the Convention.5 Nevertheless, I consider that the solution
found by the Court’6 to the issue raised in this case does not do justice to the
concepts it has adopted correctly on the right of access to justice (supra).
7.
Regarding the unsatisfactory paragraph 136 of this judgment, which is similar
to the unsatisfactory wording of Article 26 of the American Convention (a product of
its time), owing to absolute lack of time, in view of the accelerated work
“methodology” adopted recently by the Court, over my objection, I will merely
reiterate my understanding, expressed in numerous publications over the years, that
all human rights, even economic, social and cultural rights, are promptly and
immediately demandable and justiciable, once the interrelation and indivisibility of all
human rights are affirmed at both the doctrinal and the operational levels – in other
4
.
In this separate opinion, I observed that “[t]he indivisibility between Articles 25 and 8 of the
American Convention […] leads me to characterize access to justice, understood as the full realization of
justice, as forming part of the sphere of jus cogens; in other words, that the inviolability of all the judicial
rights established in Articles 25 and 8 considered together belongs to the sphere of jus cogens. […] the
fundamental guarantees, common to international human rights law and international humanitarian law
have a universal vocation because they are applicable in any circumstance, constitute a peremptory right
(belonging to jus cogens), and entail obligations erga omnes of protection” (para. 64, and cf. paras. 6062).
5
.
Paragraph 119 and the second operative paragraph.
6
.
Fourth operative paragraph.