11
38.
I tried to consolidate such progress in my Concurring Opinion (paras. 8-9 and 12) in the
Case of Maritza Urrutia v. Guatemala (Judgment of Nov. 27, 2003), and in my Separate
Opinions (30-32 and 85-92, respectively) in the cases of Tibi v. Ecuador (Judgment of Sep. 7,
2004) and Caesar v. Trinidad and Tobago (Judgment of Mar. 11, 2005). In the Judgment of
Sep. 7, 2004 in the Case of Tibi v. Ecuador, the Court did, again, hold that "there is an
international legal system that absolutely forbids all forms of torture, both physical and
psychological, and this system is now part of ius cogens. Prohibition of torture is complete and
non-derogable, even under the most difficult circumstances (...)" (para. 143)33.
39.
In my Separate Opinions in the case of the Plan de Sánchez Massacre v. Guatemala
(merits, Judgment of Apr. 29, 2004;34 reparations, Judgment of Nov. 19, 2004;35) I
established a connection between jus cogens prohibitions and State crime, and aggravated
international responsibility.36 Also, I insisted on my defense of the expansion of the material
scope of jus cogens in my Separate Opinion to the Judgment (of Jul. 8, 2004) in the case of
the Gómez-Paquiyauri Brothers v. Peru (of Jul. 8, 2004)37 and in my Dissenting Opinion in the
case of the Serrano-Cruz Sisters v. El Salvador (Judgment on preliminary objections of Nov.
23, 2004).38
40.
With its landmark Advisory Opinion n. 18 (of Sep. 17, 2003) on the Juridical Condition
and Rights of Undocumented Migrants, the Court introduced another line of case-law evolution
towards the extension of the material scope of jus cogens to include the basic principle of
equality and non-discrimination (paras. 97-101 and 110-111); I issued an extensive
Concurring Opinion on this significant step forward achieved in the Court’s case law (paras. 189). Along the same lines, in my Separate Opinions (paras. 4 and 7, and 6-9, respectively) in
the cases of Acosta-Calderón v. Ecuador (Judgment of Jun. 24, 2005) and Yatama v.
Nicaragua (Judgment of Jun. 23, 2005), I reaffirmed that the principle of equality before the
law is part of jus cogens. Moreover, in my Separate Opinion in the Case of the Ituango
Massacres v. Colombia (Judgment of Jul. 1, 2006), I argued that jus cogens is comprehensive
of the right to the Law itself. My positions, both those addressed above and the ones explained
below, are all duly supported.
41.
I will now address the more recent line of evolution of the Court’s case law, also
towards the broadening of the material scope of jus cogens. The Court reaffirmed the obiter
dictum of its Judgment in the Case of Tibi v. Ecuador (cf. supra) in its Judgment of Apr. 6,
2006 in the Case of Baldeón-García v. Peru (para. 121), in which I issued a Separate Opinion
arguing that the Court should have made further progress by determining that access to
justice is also part of international jus cogens (para. 9). I had already expressed this view in
33
.
In my Separate Opinion in the Case of Tibi, I mentioned the importance of the absolute nature
of said prohibition and examined the evolution of contemporary international judgments (paras. 26
and 30-32 of the Opinion).
34
.
Paras. 29-33 and 35 of the Opinion.
35
.
Paras. 4-7 and 20-27 of the Opinion.
36
.
In my Separate Opinion to the Judgment on the merits in the Case of the Plan de Sánchez
Massacre, I added that the component elements of the famous “Martens clause” (the “laws of
humanity” and the “requirements of the public conscience”) are part of jus cogens.
37
.
Paras. 1, 37, 39, 42 and 44 of the Opinion.
38
.
Paras. 2, 32 and 39-41 of the Opinion.