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 110111); I issued an extensive Concurring Opinion on this significant step forward
achieved in the Court’s case law (paras. 1-89). 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 my Separate Opinion (paras. 64-65) to the
Judgment of Jan. 31, 2006 in the Case of the Pueblo Bello Massacre v. Colombia
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.