6
rights (such as torture, summary, extra-legal or arbitrary executions, and forced
disappearances) are inadmissible; they violate non-derogable rights recognised by the
International Law of Human Rights. This case-law has been reiterated by the Court
(with regard to prescription) in its decision in the Bulacio versus Argentina case
(2003).
c)
Substantive Law.
18.
As to substantive law, the contribution of the two international human rights
Courts to this effect is illustrated by numerous examples of their respective case-law
pertaining to the rights protected under the two regional Conventions. The European
Court has a vast and impressive case-law, for example, on the right to the protection
of liberty and security of person (Article 5 of the European Convention), and the right
to a fair trial (Article 6). The Inter-American Court has a significant case-law on the
fundamental right to life, comprising also the conditions of living, as from its decision
in the paradigmatic case of the so-called "Street Children" (Villagrán Morales and
Others versus Guatemala, Merits, 1999).
19.
Yet another example can be recalled. The definition of the crime of torture
found today in two of the three co-existing Conventions against Torture (the U.N.
Convention of 1984, Article 1, and the Inter-American Convention of 1985, Article 2)
owes its contents to international human rights case-law, rather than to the
tipification of the crime of torture at domestic law level. In fact, the constitutive
elements of torture in the definition found in the two aforementioned Conventions 17
ensue from the jurisprudential construction of the old European Commission of Human
Rights in the Greek case (1967-1970), further discussed by the Commission and the
European Court in the Ireland versus United Kingdom case (1971-1978).
20.
In this particular instance, international case-law influenced international
legislation in the field of human rights protection. The extensive case-law of the
European Court covers virtually the totality of the rights protected under the European
Convention and some of its Protocols. The growing case-law of the Inter-American
Court, in its turn, appears innovative and forward-looking with regard to the right to
life, reparations in its multiple forms, and provisional measures of protection, these
latter sometimes benefiting members of entire human collectivities 18.
2.
Considerations on the Reservations to Treaties.
21.
International supervisory organs in the domain of human rights protection
have in recent years disclosed their awareness - and, on some occasions, their
determination - to the effect of preserving the integrity of human rights treaties. It
may be recalled that, inspired in the criterion sustained by the International Court of
Justice in its Advisory Opinion of 1951 on the Reservations to the Convention against
Genocide 19, the present system of reservations set forth in the two Vienna
17
. Namely, severe physical or mental suffering, intentionally inflicted, to obtain information or a confession,
with the consent or acquiescence of authorities or other persons acting in an official capacity.
18
. Cf. A.A. Cançado Trindade, "Les Mesures provisoires de protection dans la jurisprudence de la Cour
Interaméricaine des Droits de l'Homme", 4 Revista do Instituto Brasileiro de Direitos Humanos (2003) pp.
13-25; A.A. Cançado Trindade, "The Evolution of Provisional Measures of Protection under the Case-Law of
the Inter-American Court of Human Rights (1987-2002)", 24 Human Rights Law Journal - Strasbourg/Kehl
(2003) n. 5-8, pp. 162-168.
19
. In which, - it may be recalled, - the Hague Court endorsed the so-called Pan-American practice relating to
reservations to treaties, given its flexibility, and in search of a certain balance between the integrity of the
text of the treaty and the universality of participation in it; hence the criterion of the compatibility of the
reservations with the object and purpose of the treaties. Cf. ICJ Reports (1951) pp. 15-30; and cf., a
contrario sensu, the Joint Dissenting Opinion of Judges Guerrero, McNair, Read and Hsu Mo (pp. 31-48), as
well as the Dissenting Opinion of Judge Álvarez (pp. 49-55), for the difficulties generated by this criterion.
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