13
37.
Effectively, the judicial protection (Article 25) and judicial guarantees (Article 8)
conceptually form an organic whole and make up the rule of law in a democratic
society. The effective recourses before the national competent judicial courts (the
habeas corpus, the amparo in the majority of Latin American countries, the mandado
de segurança in Brazil, among others, all of them in the sense of Article 25 of the
American Convention) must be exercised within the framework and pursuant to the
principles of the due process of law (enshrined in Article 8 of the Convention). 27
38.
It may occur that, in a specific case, there could be a violation of only one of
the constitutive elements of that whole of protection and judicial guarantees, - but this
does not diminish at all the integrative hermeneutics I have stated, in the sense that,
in principle, that stated in Articles 8 and 25 of the American Convention must
necessarily be taken as a whole, - which make up, I insist, the rule of law of a
democratic society, - in relation with the general duties established in Articles 1(1) and
2 of the Convention. Any affirmation to the contrary would require, in my opinion, a
justification that, from where I stand, simply does not exist, and would not be at all
convincing. A violation to the right to access justice (Article 25) would in all probability
contaminate the guarantees of the due process of law (Article 8).
39.
The international organizations that supervise human rights, without setting
aside the precepts of the general rule for the interpretation of treaties (Article 31(1) of
both Conventions of Vienna on Rights of the Treaties, 1969 and 1986), have developed
a teleological interpretation, with emphasis on the realization of the object and purpose
of the treaties on human rights, as the most appropriate to ensure an effective
protection of said rights. At the end, subjacent to the mentioned general rule of
interpretation stipulated in both Conventions of Vienna (Article 31(1)), is the principle,
amply supported in the jurisprudence, according to which the conventional stipulations
must be ensured their own effects (the so-called effet utile). This principle – ut res
magis valeat quam pereat, - through which the interpretation must favor a treaty’s
appropriate effects assumed, in matters of human rights, special importance in the
determination of the ample scope of the conventional obligations of protection.28
40.
Said interpretation is, in effect, the one that most faithfully reflects the special
nature of the human rights treaties, the objective nature of the obligations included in
them, and the autonomous sense of the concepts enshrined in them (different to the
corresponding concepts in the framework of the domestic legal systems). Since the
human rights treaties include concepts with an autonomous sense, product of a
jurisprudential evolution, and since the object and purpose of the human rights
treaties is different to those of the classic treaties (since they refer to the relationship
between the State and the people under its jurisdiction); the classical postulates of
interpretation of the treaties in general adjust to this new reality.29
27
Cf., in that sense, the ninth Advisory Opinion of the IACourtHR, on the Judicial Guarantees in States
of Emergency (1987).
28
29
A.A. Cançado Trindade, Tratado..., volume II, op. cit. supra n. (11), pp. 32-33 and 192.
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 y H. Petzold), Köln, C. Heymanns, 1988, pp. 66-67 y 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; J. Velu y R. Ergec, La
Convention européenne des droits de l'homme, Bruxelles, Bruylant, 1990, p. 51.