10
protection of the weaker party who has been 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"
(Villagrán-Morales 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).
(incapable of 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.