12
to the new ethos of our times, which is to be reflected in the postulates of Public
International Law. (...)" 36.
V.
The International Compulsory Jurisdiction: Reflections
De Lege Ferenda.
34.
I could not conclude this Separate Opinion in the present case of Constantine
and Others versus Trinidad and Tobago without a last line of reflections, de lege
ferenda, on the international compulsory jurisdiction. The "judicial decisions", referred
to in the enumeration of the formal sources and evidences of International Law, set
forth in Article 38(1)(d) of the Statute of the ICJ 37, certainly are not limited to the caselaw of the ICJ itself 38. They likewise comprise, nowadays, the judicial decisions of the
international tribunals (Inter-American and European Courts) of human rights, of the ad
hoc International Criminal Tribunals (for ex-Yugoslavia and for Rwanda), of the
International Tribunal for the Law of the Sea, of other international and arbitral
tribunals, as well as of national tribunals in matters of international law39. Throughout
the last years the old ideal of international justice has been revitalized and has gained
ground, with the considerable expansion of the international judicial function, reflected
in the creation of new international tribunals; the work of these latter has been
enriching contemporary international case-law, contributing to assert the aptitude of
International Law to regulate adequately the juridical relations in distinct domains of
human activity.
35.
In this sense, in my aforementioned Separate Opinion in the case of Blake
versus Guatemala, in warning as to the necessity to establish the juridical bases of a
minimally institutionalized international community, I pointed out that
"(...) With the evolution of the International Law of Human Rights, it is Public
International Law itself which is justified and legitimized, in affirming juridical principles,
concepts and categories proper to the present domain of protection, based on premises
fundamentally distinct from those which have guided the application of its postulates at the
level of purely inter-State relations.
(...) The norms of the law of treaties (...) can greatly enrich with the impact of the
International Law of Human Rights, and develop their aptitude to regulate adequately the
legal relations at inter-State as well as intra-State levels, under the respective treaties of
protection. (...)" 40.
36
.
IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999, Series C, n. 48,
Separate Opinion of Judge A.A. Cançado Trindade, pp. 114-115, pars. 32-34.
37
.
As "subsidiary means for the determination of rules of law".
38
.
As this latter itself has acknowledged, e.g., in its Judgment of 18.11.1960 in the case of the Arbitral
Award of the King of Spain of 1906 (Honduras versus Nicaragua), ICJ Reports (1960) pp. 204-217.
39
.
I. Brownlie, Principles of Public International Law, 4th. ed., Oxford, Clarendon Press, 1990, pp. 1924; A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, Brasília, Editora Universidade
de Brasília, 1981, pp. 19-20; R.A. Falk, The Role of Domestic Courts in the International Legal Order, Syracuse
University Press, 1964, pp. 21-52 and 170; J.A. Barberis, "Les arrêts des tribunaux nationaux et la formation
du droit international coutumier", 46 Revue de droit international de sciences diplomatiques et politiques
(1968) pp. 247-253; F. Morgenstern, "Judicial Practice and the Supremacy of International Law", 27 British
Year Book of International Law (1950) p. 90.
40
.
IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999, Series C, n. 48,
Separate Opinion of Judge A.A. Cançado Trindade, pp. 110 and 112, pars. 23 and 27-28.