4
11.
There is a converging case-law of the two regional Human Rights Courts - and
indeed of other human rights international supervisory organs - on this issue. Thus,
the European Court of Human Rights has reiteratedly pronounced to that effect 8; in
the Loizidou versus Turkey case (1995), for example, the European Court expressly
discarded undue restrictions which would not only "seriously weaken" its role in the
discharge of its functions but "would also diminish the effectiveness of the Convention
as a constitutional instrument of European public order (ordre public)"9. The InterAmerican Court of Human Rights, on its part, has likewise repeatedly stressed the
object and purpose of human rights treaties and the objective character of the
obligations ensuing therefrom 10, as well as the special character of human rights
treaties, as distinguished from multilateral treaties of the traditional type 11.
12.
Such convergence of views of the two regional Human Rights Courts on the
fundamental issue of the proper interpretation of human rights treaties naturally
ensues from the overriding identity of the object and purpose of those treaties.
General international law itself bears witness of the principle (apparently subsumed
under the general rule of interpretation of Article 31 of the two Vienna Conventions on
the Law of Treaties) whereby the interpretation is to enable a treaty to have
appropriate effects 12, - a principle which has been resorted to against eventual calls
for an unduly restrictive interpretation. There is a jurisprudence constante pointing
towards the restrictive interpretation of provisions which limit or restrict the exercise
of recognised human rights 13.
13.
An aspect which in this respect should not pass unnoticed is that derogation
measures and limitations must not be inconsistent with the other obligations under
international law incumbent upon the State Party concerned: thus, neither derogation
clauses, nor limitation provisions, of a given human rights treaty, are to be interpreted
to restrict the exercise of any human rights protected to a greater extent by other
human rights treaties to which the State Party concerned is also a Party. Such
understanding finds support in the rule of international law whereby the interpretation
and application of a treaty cannot restrict a State's obligations ensuing from other
treaties on the subject - in the present case, human rights protection - to which the
State at issue is also a Party. In the present domain, international law has been made
use of in order to improve and strengthen - and never to weaken or undermine - the
protection of recognised human rights14.
8
. For example, in its judgments in the Wemhoff (1968), Belgian Linguistics (1968), Golder (1975), Ireland
versus United Kingdom (1978) and Soering (1989) cases, among others.
9
. ECtHR, Loizidou versus Turkey case (preliminary objections, Judgment of 23.03.1995, par. 75.
10
. IACtHR, Advisory Opinions n. 1, on "Other Treaties" Subject to the Advisory Jurisdiction of the Court
(1982), and n. 3, on Restrictions to the Death Penalty (1983), among others.
11
. E.g., inter alia, IACtHR, Advisory Opinion n. 2, on Effect of Reservations on the Entry into Force of the
American Convention (1982).
12
. Cf., e.g., IACtHR, Advisory Opinion n. 4, on the Proposed Amendments to the Naturalization Provisions of
the Constitution of Costa Rica (1984).
13
. Thus, in its judgment in the Golder case (1975), the European Court of Human Rights clearly stated that
there was no room for implied limitations (limitations implicites); the view has ever since prevailed that the
only limitations or restrictions permissible are those for which the human rights treaty itself makes express
provision. The obiter dicta of the Inter-American Court of Human Rights in its seventh Advisory Opinion, on
the Enforceability of the Right to Reply or Correction (1986) reinforce the necessarily restrictive
interpretation of restrictions to the exercise of rights recognised in human rights treaties.
14
. Cf. A.A. Cançado Trindade, "Co-existence and Co-ordination of Mechanisms of International Protection of
Human Rights (At Global and Regional Levels)", 202 Recueil des Cours de l'Académie de Droit International
de La Haye (1987) p. 401.
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