10
turned into a victim of a human rights violation. Such imbalance needs to be corrected, even
by way of a Judgment on Interpretation: this Judgment on Interpretation of the Court in the
case of the Dismissed Congressional Employees hardly contributes, if it does at all, to the
achievement of such goal.
V.
Access to Justice and the Extension of the Material Scope of Jus
Cogens.
35.
For over a decade now, I have been fighting within this Court for the extension of the
material scope of jus cogens to cover the right to justice lato sensu. To my satisfaction, the
Court has adopted the line of reasoning I have strongly advocated for years. Refreshing my
memory, in my Separate Opinions in the Case of Blake v. Guatemala (preliminary objections,
Judgment of Jul. 2, 1996;30 merits, Judgment of Jan. 24, 1998;31 and reparations, Judgment of
Jan. 22, 199932) I referred to the need to develop the case law on jus cogens prohibitions
(beyond the law of treaties, covering any violation of human rights, including by way of
unilateral action, so as to establish in a crystal-clear fashion the objectively unlawful nature of
torture practices, summary executions and forced disappearances).
36.
In my Separate Opinion in the paradigmatic Case of the "Street Children" (VillagránMorales et al. v. Guatemala, Judgment on reparations of May 26, 2001), I argued that the
protection of the fundamental right to life falls under the domain of jus cogens (para. 36);
along the same lines of thought are my Concurring Opinion (para. 11) in the Case of Barrios
Altos v. Perú (Judgment of Mar. 14, 2001) and my Separate Opinion (para. 6) in the Case of
Las Palmeras v. Colombia (Judgment on preliminary objections of Feb. 4, 2000). In my
Separate Opinions (para. 38) in the cases of Hilaire, Benjamin and Constantine v. Trinidad and
Tobago (Judgment on preliminary objections of Sep. 1, 2001), I made reference to the
evolution of jus dispositivum into jus cogens (in the realm of the mandatory international
jurisdiction).
37.
I addressed the gradual broadening of the absolute prohibitions of jus cogens in my
Separate Opinion (para. 34) in the Case of Servellón-García et al. v. Honduras (Judgment of
Sep. 21, 2006). In the Judgment of Aug. 18, 2000 in the Case of Cantoral-Benavides v. Peru,
the Court made significant progress (from its initial position regarding the protection of the
fundamental right to life) by holding that
"(...) certain acts that were classified in the past as inhuman or degrading
treatment, but not as torture, may be classified differently in the future, that is, as
torture, since the growing demand for the protection of fundamental rights and freedoms
must be accompanied by a more vigorous response in dealing with infractions of basic
values of democratic societies (…)” (para. 99).
explaining how those who seem to lack expressions of will, such as newborns or those with certain
mental inabilities, still are legal persons). In criticizing, in addition, the “never-ending debate” between
both theories, Alf Ross characterized the “typical situation of a subjective right” by the “restriction of
another person’s freedom, the power to institute legal action and the authority to adjudicate” the
right. A. Ross, Sobre el Derecho y la Justicia, 2a. ed., Buenos Aires, Eudeba, 1997, pp. 230-231 and
225.
30
.
Paras. 11 and 14 of the Opinion.
31
.
Paras. 15, 17, 23, 25 and 28 of the Opinion.
32
.
Paras. 31, 40 and 45 of the Opinion.