15
provisions of a regional treaty must be interpreted in the light of the
concepts and provisions of instruments of a universal character.
(Underlining in original text.)
It is true, of course, that it is frequently useful, -and the Court has just done
it- to compare the American Convention with the provisions of other
international instruments in order to stress certain aspects concerning the
manner in which a certain right has been formulated, but that approach
should never be used to read into the Convention restrictions that are not
grounded in its text. This is true even if these restrictions exist in another
international treaty.
52.
The foregoing conclusion clearly follows from the language of Article
29 which sets out the relevant rules for the interpretation of the Convention.
Subparagraph (b) of Article 29 indicates that no provision of the Convention
may be interpreted as
restricting the enjoyment or exercise of any right or freedom recognized
by virtue of the laws of any State Party or by virtue of another
convention to which one of the said states is a party.
Hence, if in the same situation both the American Convention and another
international treaty are applicable, the rule most favorable to the individual
must prevail. Considering that the Convention itself establishes that its
provisions should not have a restrictive effect on the enjoyment of the rights
guaranteed in other international instruments, it makes even less sense to
invoke restrictions contained in those other international instruments, but
which are not found in the Convention, to limit the exercise of the rights and
freedoms that the latter recognizes.
39.
In case of absolute incompatibility, where there is no possible "interpretation
of the Convention", if the judge has no authority to disapply the rule, said judge is
limited to merely indicating the unconventionality of it or, where appropriate,
"raising doubts of its unconventionality" to other competent courts within the same
legal system that can exercise "control of conformity with the Convention" with
greater intensity. Thus, the reviewing judicial bodies will have to exercise that
"control" and disapply the rule or declare its invalidity given its lack of conformity
with the Convention.
40.
What does not seem reasonable and would be outside the parameters of
interpretation of the I/A Court of H.R., is that no national body has jurisdiction to
exercise the " diffused control of conformity with the Convention" with strong
intensity, that is, to cease to apply the norm to particular cases or to its general
effects as a result of its nonconformity with the Convention, because otherwise
there would be international responsibility of the State. We must not lose sight of
the provisions of Articles 1 and 2 of the Convention relating to the obligation to
respect human rights and the duty to adopt provisions of domestic law. As noted
by the I/A Court of H.R., the latter is “aimed at facilitating the work of the Judiciary
so that the law enforcement authority may have a clear option in order to solve a
particular case” 53 in situations involving fundamental rights. As such, the I/A Court
53
Case of Almonacid Arellano v. Chile, supra note 13, para. 123.
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