-6not statically - abiding only by what motivated their original formulation some years
ago. The fact that the protected rights are endowed with autonomy and their own
material content does not mean that they cannot or should not be interrelated owing
to the circumstances of each case. To the contrary, in my opinion this interrelation is
the element that provides more effective protection, in light of the indivisibility of all
human rights. Here we pass from the ontological to the hermeneutical level. Having
made this distinction, I will now continue to the route that the right to an effective
recourse has followed over time.
III.
The genesis of the right to an effective recourse before the national
courts in the corpus juris of international human rights law
16.
The travaux préparatoires of the Universal Declaration of Human Rights were
conducted in different stages. The United Nations Commission on Human Rights
decided to elaborate a draft in April/May 1946, when it appointed a "nuclear
commission" to make the initial studies. In parallel, in 1947, UNESCO consulted
scholars of the time regarding the bases of a future Universal Declaration.12 The draft
Declaration was prepared within the framework of the United Nations Commission on
Human Rights, by a Working Group which drafted it between May 1947 and June
1948. As of September 1948, the draft Declaration was examined by the Third
Committee of the United Nations General Assembly, and adopted on December 10
that year by the Assembly.13 One of the most relevant provisions of the 1948
Universal Declaration is to be found in Article 8, according to which everyone has the
right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted to him by the constitution or by law.
17.
In the final analysis, this Article 8 of the Universal Declaration embodies the
right of access to justice (under domestic law), an essential element in any
democratic society. Despite its relevance, the draft article that became Article 8 of
the Universal Declaration was only inserted in the text during the final stages of the
travaux préparatoires, when the matter was being examined by the Third Committee
of the United Nations General Assembly. However, significantly, no objections were
raised to it, and the Third Committee adopted it by 46 votes to zero, with three
abstentions, while in the General Assembly it was adopted unanimously. The
initiative, delayed but very successful, was proposed by the delegations of the Latin
American States. It may even be considered that Article 8 (on the right to an
effective remedy) represents the Latin American contribution par excellence to the
Universal Declaration.
18.
Indeed, Article 8 of the 1948 Universal Declaration was inspired by the
equivalent provision of Article XVIII of the American Declaration of the Rights and
Duties of Man eight months earlier (April 1948).14 The basic argument that led to the
12
.
UNESCO, Los Derechos del Hombre - Estudios y Comentarios en torno a la Nueva Declaración
Universal, México/Buenos Aires, Fondo de Cultura Económica, 1949, pp. 233-246.
13
.
For a full report, cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,
vol. I, 2a. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, chapter I, pp. 51-77.
14
.
This Latin American initiative was strongly influenced by the principles that govern the remedy of
amparo, which had been embodied in the national laws of many countries of the region. To such an extent
that, at the Bogotá Conference of April 1948, Article XVIII of the said American Declaration was adopted
unanimously by the 21 delegations present. Regarding the legacy of the 1948 American Declaration, cf. A.A.
Cançado Trindade, "O Legado da Declaração Universal de 1948 e o Futuro da Proteção Internacional dos
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