SEPARATE OPINION OF
JUDGE A. A. CANÇADO TRINDADE
1.
I have voted in favour of the present Judgment on the merits in the case of
Blake versus Guatemala which the Inter-American Court of Human Rights has just
rendered, for considering it to be in keeping with the applicable law, and bearing in
mind what was previously decided by the Court in the Judgment on preliminary
objections (of 02 July 1996). I feel, however, obliged to express, in this Separate
Opinion, the thoughts which follow, concerning the limitation ratione temporis,
raised in the cas d'espèce, as to the competence of the Court, and its legal
consequences and impact on the handling of the crime of forced disappearance of
person as reflected in the present Judgment. Already in my Separate Opinion in the
previous Judgment on preliminary objections in the same Blake case I have
expressed my concerns in that respect, which I now retake and develop in relation
to the merits of the case.
2.
As a judicial sentence (sententia, etymologically derived from "feeling"
[sentimiento]) is something more than a logical operation set in defined legal
parameters, I consider it my duty to explain the reason for my concerns as regards
the legal solution set forth in the present Judgment of the Court. Such Judgment,
despite the considerable efforts required of the Court by the circumstances of the
case, while in conformity with the law stricto sensu, in my understanding fails to
provide the unity proper to any legal solution and to meet fully the imperative of
the realization of justice under the American Convention on Human Rights. As I
shall indicate further on, only through the transformation of the existing law can
justice be fully rendered in circumstances such as those presented in the instant
Blake case of forced disappearance of person.
I.
The Limit of the Limitation Ratione Temporis.
3.
The limitation ratione temporis to the competence of the Court, as I
pointed out in my Separate Opinion (paragraph 8) in the earlier Judgment on
preliminary objections in the present Blake case, has never had the wide scope
(originally claimed by the respondent State) of conditioning ratione temporis the
actual submission of the whole case to the jurisdiction of the Court, but specifically
that of excluding from the consideration of the Court only the facts occurred before
the acceptance by Guatemala of the jurisdiction of the Court in contentious
matters. Even so, I allowed myself to add, in my aforementioned Separate Opinion
(paragraphs 12-14), that the emphasis of the reasoning of the Court, in my view,
"should be placed, not on the sword of Damocles of 09 March 1987, the date on which
Guatemala accepted the jurisdiction of the Court (which is to be accepted as a
limitation ratione temporis to the competence of this latter (...)), but rather on the
nature of the alleged multiple and interrelated violations of protected human rights,
and prolonged in time, with which the present case of disappearance is concerned.
When, in relation to Article 62(2) of the American Convention on Human Rights, one is
led, by the application of the rigid postulates of the law of treaties, to a situation like
the present one, in which the questions of the investigation of the detention and death
of a person, and of the punishment of the perpetrators, end up by being turned back
to the domestic jurisdiction, grave questions subsist in the air, disclosing a serious
challenge for the future. (...)
(...) The great challenge which appears in the horizon consists (...) in keeping on
advancing resolutely towards the gradual humanization of the law of treaties (a