2
a clear and special emphasis on the element of the object and purpose of the treaty,
so as to ensure an effective protection (effet utile) 2 of the guaranteed rights.
5.
Whilst in general international law the elements for the interpretation of
treaties evolved primarily as guidelines for the process of interpretation by States
Parties themselves, human rights treaties, in their turn, have called for an
interpretation of their provisions bearing in mind the essentially objective character of
the obligations entered into by States Parties: such obligations aim at the protection
of human rights and not at the establishment of subjective and reciprocal rights for
the States Parties. Hence the special emphasis on the element of the object and
purpose of human rights treaties, of which the case-law of the two regional - the
Inter-American and the European - Courts of Human Rights gives eloquent testimony.
6.
The interpretation and application of human rights treaties have been guided
by considerations of a superior general interest or ordre public which transcend the
individual interests of Contracting Parties. As indicated by the jurisprudence constante
of the two international human rights tribunals, those treaties are distinct from
treaties of the classic type, incorporating restrictively reciprocal concessions and
compromises; human rights treaties prescribe obligations of an essentially objective
character, implemented collectively by mechanisms of supervision of their own 3. The
rich case-law on methods of interpretation of human rights treaties has enhanced the
protection of the human person at international level and has enriched International
Law under the impact of the International Law of Human Rights.
7.
The converging case-law to this effect has generated the common
understanding, in the regional (European and inter-American) systems of human
rights protection, that human rights treaties are endowed with a special nature (as
distinguished from multilateral treaties of the traditional type); that human rights
treaties have a normative character, of ordre public; that their terms are to be
autonomously interpreted; that in their application one ought to ensure an effective
protection (effet utile) of the guaranteed rights; that the obligations enshrined therein
do have and objective character, and are to be duly complied with by the States
Parties, which have the additional common duty of exercise of the collective guarantee
of the protected rights; and that permissible restrictions (limitations and derogations)
to the exercise of guaranteed rights are to be restrictively interpreted. The work of the
Inter-American and European Courts of Human Rights has indeed contributed to the
creation of an international ordre public based upon the respect for human rights in all
circumstances 4.
8.
As I have pondered in my Separate Opinion in the Blake versus Guatemala
case (reparations, 1999) before the Inter-American Court of Human Rights,
"(...) in so far as human rights treaties are concerned, one is to
bear always in mind the objective character of the obligations
2
. M.K. Yasseen, "L'interprétation des traités d'après la Convention de Vienne sur le Droit des Traités", 151
Recueil des Cours de l'Académie de Droit International de La Haye (1976) p. 74; J.B. Acosta Estévez and A.
Espaliat Larson, La Interpretación en el Derecho Internacional Público y Derecho Comunitario Europeo,
Barcelona, PPU, 1990, p. 105, and cf. pp. 105-107.
3
. A.A. Cançado Trindade, "The Interpretation of the International Law of Human Rights by the Two Regional
Human Rights Courts, in Contemporary International Law Issues: Conflicts and Convergence (Proceedings of
the III Joint Conference ASIL/Asser Instituut, The Hague, July 1995), The Hague, Asser Instituut, 1996, pp.
157-162 and 166-167.
4
. A.A. Cançado Trindade, "Le développement du Droit international des droits de l'homme à travers l'activité
et la jurisprudence des Cours Européenne et Interaméricaine des Droits de l'Homme" (Discours du Président
de la Cour Interaméricaine des Droits de l'Homme), in CourEDH, Cour Européenne des Droits de l'Homme Rapport annuel 2003, Strasbourg, CourEDH, 2004, pp. 41-50.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents