-18rights. Ultimately, underlying the said general rule of interpretation stipulated in the
two Vienna Conventions (Article 31(1)), is the principle, widely supported by case
law, according to which it is necessary to ensure that the treaty-based provisions
produce the pertinent effects (the so-called effet utile). This principle, ut res magis
valeat quam pereat, by which the interpretation should promote the appropriate
effects of a treaty has (with regard to human rights) assumed particular importance
in determining the broad scope of the treaty-based protection obligations.40
51.
Indeed, this interpretation is the one that most faithfully reflects the special
character of human rights treaties, the objective nature of the obligations they
establish, and the autonomous meaning of the concepts they embody (distinct from
the corresponding concepts in the context of national juridical systems). Since
human rights treaties incorporate concepts with an autonomous meaning, deriving
from the evolution of case law, and since the object and purpose of human rights
treaties are distinct from the classic treaties (because they relate to relations
between the State and the persons subject to its jurisdiction), the classic principles
of interpretation of treaties in general adapt to this new reality.41
52.
Moreover, Article 29(b) of the American Convention expressly prohibits any
interpretation that restricts the exercise of the protected rights. Thus, any
reorientation of the Court’s consistent case law, which integrates Articles 8 and 25 of
the American Convention, would only be justified to the extent that it provided
greater protection to the rights embodied therein, which is not the case. Until today,
in the deliberations on this issue within the Court that are causing me concern
(which, fortunately, did not occur in this case), I have never heard any evidence that
de-linking or “separating” Article 8 from Article 25 would provide more effective
protection for the rights enshrined in the American Convention. Rather, this would
lead to an unfortunate and unjustifiable setback in the Court’s case law, particularly
in view of the current general trend to the contrary of international case law on this
issue.
IX.
Overcoming the difficulties concerning the right to an
effective recourse in the case law of the European Court
53.
Even if other international mechanisms for the supervision of human rights
have labored under the uncertainties of a fragmenting interpretation, why should the
Inter-American Court follow this path, abdicating its progressive case law – which
has earned it the respect of the beneficiaries of our protection system as well as of
international academic circles – and assume a different stance which has even been
abandoned by other bodies that erroneously used to follow it? In my opinion, this
makes no sense.
40
.
A.A. Cançado Trindade, Tratado..., tome II, op. cit. supra No. (11), pp. 32-33 and 192.
41
.
Ibid., pp. 32-34; and cf. also R. Bernhardt, "Thoughts on the Interpretation of Human Rights
Treaties", in Protecting Human Rights: The European Dimension - Studies in Honour of G.J. Wiarda (eds. F.
Matscher and H. Petzold), Köln, C. Heymanns, 1988, pp. 66-67 and 70-71; Erik Suy, "Droit des traités et
droits de l'homme", in Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte Festschrift für H. Mosler (eds. R. Bernhardt et alii), Berlin, Springer-Verlag, 1983, pp. 935-947; and J. Velu
and R. Ergec, La Convention européenne des droits de l'homme, Bruxelles, Bruylant, 1990, p. 51.
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