13
International Law, or, in the field of the International Law of Human Rights, by the
international supervision bodies created by virtue of human rights protection treaties.
45.
Performance of a conventionality control (cf. supra) for a human rights treaty
such as the American Convention can contribute much to ensuring that said
Convention will produce its own effects (effet utile) in the domestic law of the State
Parties. This is a point that cannot go unnoticed by the Inter-American Court, and one
that is a part of the clarification that the Court should have provided on paragraph
7(a) of petitioners’ request for Interpretation of Judgment in this case of the
Dismissed Congressional Employees. In my letter of June 13, 2007 to the Secretariat
of the Court (in reply to a communication from the latter),42 I already indicated that,
in my opinion, paragraph 7(a) of said request for Interpretation, “regarding access to
justice" under the circumstances of the cas d'espèce warranted "the Court’s
attention."
46.
Over a decade ago, in my Dissenting Opinion in the Case of Genie-Lacayo v.
Nicaragua (Order of Sep. 13, 1997), among other things I used the old English adage
that "Justice must not only be done: it must also be seen to be done" (para. 25). I am
again relying on that adage in the instant case. The parties are persons (individuals or
legal entities) appearing before a tribunal and, just as they have rights and obligations
before that tribunal, they are also entitled to have their case heard with due attention.
In a study published almost half a century ago, Piero Calamandrei recalled that every
Judgment "must be reasoned", in the face of what he characterized as a “crisis of
well-founded reasoning." To him, reasoning is "the ‘rationalization’ of the sense of
justice,"43 and a person who is subject to the jurisdiction of a State (for instance, a
worker) “is not a subditus left to the mercy of a legibus solutus prince, but an
autonomous subject of rights and obligations."44 In our time, that person also has the
(additional) protection of the corpus juris of the International Law of Human Rights.
47.
In its substantial Judgment on Interpretation of Nov. 26, 2003 regarding the
first Judgment rendered by the Court at a session away from its headquarters (held in
Santiago de Chile in 2003), in the Case of Juan Humberto Sánchez v. Honduras
(Judgment on preliminary objections, merits and reparations of Jun. 7, 2003), the
Inter-American Court recalled the case law of present-day international tribunals on
this subject and, much to the point, it stated that
"the task of interpretation that corresponds to an international court
entails the clarification of a text, not only as regards the decisions in the
operative paragraphs, but also as regards determining the scope, meaning and
purpose of its considerations" (para. 14).
48.
This being so, the Court could perfectly well and should have provided a
satisfactory clarifying response to the key paragraph 7(a) of petitioners’ request for
interpretation in the instant case, which, in addition to not being challenged in the
brief (of Jul. 31, 2007) submitted by the respondent State, does not in the least, in
my opinion, constitute a means of challenging the Judgment on the merits and
reparations (of Nov. 24, 2006) in the instant Case of the Dismissed Congressional
Employees v. Peru. It is both odd and sad to see that, in this proceeding, it was
precisely the two bodies entrusted with supervising the American Convention – the
42
.
43
IACHR, doc. CDH-S/1067, of Jun. 13, 2007.
.
125.
P. Calamandrei, Proceso y Democracia, Buenos Aires, EJEA, 1960, pp. 149, 115 and
44
Ibid., pp. 149-150.
.