19
71.
The second correctly includes a clause that it expressly attributive of
jurisdiction to the Inter-American Court (besides to the Commission – Article XIII),
but not the first: being a prohibition of the jus cogens (the prohibition of torture),
and having in mind non-revocable rights, its Articles 16 and 17, - in an emphatic
example of bad wording, - for reasons that escape my comprehension only refer
expressly to the Commission, and not the Court, in a world in which international
jurisdiction is expanding through the creation of new international courts, precisely
to punish and prevent, inter alia, torture! I do not free myself of leaving my firmly
critical position in this sense recorded here.
72.
Regarding the Convention of Belém do Pará (whose adoption I personally
witnessed, in the General Assembly of the OAS in 1994, a few hours before my first
election as Full Judge of this Court), regarding which this Court issues its first ruling
in the present Judgment, at the end of 2006, - its Article 11 refers expressly to the
consultative function of the Court, but, in what refers to its adjudicatory function,
Article 12 of said Convention could be much more clear. Article 12 of the
Convention of Belém do Pará is not at the height of the noble cause it sponsors –
the defense of women’s rights – and it could have chosen a much better wording,
thus requiring interpretation.
73.
Article 12 expressly only foresees the right of petition of the Inter-American
Commission, but at least it adds that the Commission will consider the petitions “in
accordance with the norms and the procedures established by the American
Convention on Human Rights and the Statutes and Regulations” of the Commission.
It so happens that, between said norms, for the consideration of petitions, is Article
51(1) of the American Convention, which expressly states the forwarding by the
Commission of cases not settled by it to the Court for its decision. Therefore, the
Court has jurisdiction over said cases, and may and must issue a ruling regarding
the alleged violations of the human rights of women, - with the necessary gender
analysis, as presented in the present case, - under the Convention of Belém do
Pará in said circumstances, giving the latter the due effet utile.
74.
But to disregard the need of this exercise of interpretation, and to
strengthen its own mechanism of protection, the Convention of Belém do Pará
should have included a clause of express attribution of jurisdiction to the Court in
adjudicatory matters. But not because of this is the Court deprived of jurisdiction;
to the contrary, in my judgment it has jurisdiction, in the understanding and the
terms I summarized in the previous paragraph of this Concurring Opinion. The
negotiators and those who draw up international human rights instruments should
have been more precise in the exercise, taking into account the imperatives of
protection of the human being, - in the present case, women’s rights that are
regretfully violated and unpunished in everyday life, in some parts of the world
more than others.
VIII. Oppressed
and
Oppressors:
The
Domination and the Primacy of the Law.
Unsustainable
75.
Finally, I proceed to my last line of reflections in the present Concurring
Opinion. With her usual keenness, the great mystical thinker Simone Weil warned,
in her penetrating essay Reflections Concerning the Causes of Liberty and Social
Oppression (1934), which considered as her own “will”, that
Disabilities, which creates it own mechanism of supervision (Article VI), the Court refers to it in its
Judgment of the case of Ximenes Lopes.