5
14.
The specificity of the international law of human rights finds expression not
only in the interpretation of human rights treaties in general but also in the
interpretation of specific provisions of those treaties. Pertinent illustrations can be
found in, e.g., provisions which contain references to general international law. Such
is the case, for example, of the requirement of prior exhaustion of local remedies as a
condition of admissibility of complaints or communications under human rights
treaties; the local remedies rule bears witness of the interaction between international
law and domestic law in the present domain of protection, which is fundamentally
victim-oriented, concerned with the rights of individual human beings rather than of
States. Generally recognised principles or rules of international law - which the
formulation of the local remedies rule in human rights treaties refers to, - besides
following an evolution of their own in the distinct contexts in which they apply,
necessarily suffer, when inserted in human rights treaties, a certain degree of
adjustment or adaptation 15, dictated by the special character of the object and
purpose of those treaties and by the widely recognised specificity of the international
law of human rights16.
b)
Procedural Issues.
15.
Both the European and Inter-American Courts have rightly set limits to State
voluntarism, have safeguarded the integrity of the respective human rights
Conventions and the primacy of considerations of ordre public over the will of
individual States, have set higher standards of State behaviour and established some
degree of control over the interposition of undue restrictions by States, and have
reassuringly enhanced the position of individuals as subjects of the International Law
of Human Rights, with full procedural capacity. In so far as the basis of their
jurisdiction in contentious matters is concerned, eloquent illustrations of their firm
stand in support of the integrity of the mechanisms of protection of the two
Conventions are afforded, for example, by the decisions of the European Court in the
Belilos versus Switzerland case (1988), in the Loizidou versus Turkey case
(Preliminary Objections, 1995), and in the I. Ilascu, A. Lesco, A. Ivantoc and T.
Petrov-Popa versus Moldovia and the Russian Federation case (2001), as well as by
the decisions of the Inter-American Court in the Constitutional Tribunal and Ivcher
Bronstein versus Peru cases (Jurisdiction, 1999), and in the Hilaire, Constantine and
Benjamin and Others versus Trinidad and Tobago (Preliminary Objection, 2001).
16.
The two international human rights Tribunals, by correctly resolving basic
procedural issues raised in the aforementioned cases, have aptly made use of the
techniques of public international law in order to strengthen their respective
jurisdictions of protection of the human person. They have decisively safeguarded the
integrity of the mechanisms of protection of the American and European Conventions
on Human Rights, whereby the juridical emancipation of the human person vis-à-vis
her own State is achieved. They have, furthermore, achieved a remarkable
jurisprudential construction on the right of access to justice (and of obtaining
reparation) at international level.
17.
In its historical Judgment in the case, concerning Peru, of the massacre of
Barrios Altos (2001), e.g., the Inter-American Court warned that provisions of
amnesty, of prescription and of factors excluding responsibility, intended to impede
the investigation and punishment of those responsible for grave violations of human
15
. Cf., e.g., IACtHR, Advisory Opinion n. 11, on Exceptions to the Exhaustion of Domestic Remedies [cf.]
(1990).
16
. Cf. A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International
Law, Cambridge, University Press, 1983, pp. 1-443.
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