5
14.
Contemporary international law (treaty-based and general) has been
characterized overall by the emergence and evolution of its peremptory norms (jus
cogens), and an increased awareness, on a virtually universal scale, of the principle
of humanity.17 Grave human rights violations, acts of genocide and crimes against
humanity, amongst other atrocities, violate absolute prohibitions of jus cogens.18
Humaneness – which is a feature of a new jus gentium of the twenty-first century –
cuts across all the corpus juris of contemporary international law. In my opinions for
this Court – including my concurring opinion in Advisory Opinion No. 16 on The Right
to Information on Consular Assistance in the Framework of the Guarantees of the
Due Process of Law (of October 1, 1999) – I have called this development a historic
process of the true humanization of international law (para. 35).
15.
I have already described my own conception of the fundamental role and
central position of the general principles of law in any legal system (national or
international) extensively and in detail in my concurring opinion in Advisory Opinion
No. 18 on The Juridical Status and Rights of Undocumented Migrants (2003).
Already, in 1951, in its Advisory Opinion on Reservations to the Convention on the
Prevention and Punishment of Genocide, the International Court of Justice (ICJ) had
recognized the principles underlying this Convention as principles that were:
"obligatory for the States, even in the absence of any treaty-based obligation."19
16.
In its constant case law when interpreting and applying the American
Convention, the Inter-American Court has consistently invoked the general principles
of law.20 Among these principles, those endowed with a truly fundamental nature
form the substratum of the legal system itself, revealing the right to law to which all
human beings are entitled.21 In the domain of international human rights law, the
principle of the dignity of the human being and that of the inalienability of his
inherent rights belong to this category of fundamental principles. It its Advisory
Opinion No. 18 on The Juridical Status and Rights of Undocumented Migrants (2003),
the Inter-American Court referred expressly to both principles.22
17
T.O. Elias, "New Trends in Contemporary International Law", in Contemporary Issues in
International Law (eds. D. Freestone, S. Subedi and S. Davidson), The Hague, Kluwer, 2002, pp. 11-12.
18
Cf. M.C. Bassiouni, Crimes against Humanity in International Criminal Law, 2a. ed. rev., The
Hague, Kluwer, 1999, pp. 210-211, with regard to crimes against humanity.
19
ICJ, ICJ Reports (1951) p. 23.
20
Cf. Inter-American Court of Human Rights (IACtHR), Five Pensioners vs. Peru (Judgment of
February 28, 2003), para. 156; IACtHR, Cantos vs. Argentina (Preliminary Objections, Judgment of
September 7, 2001), para. 37; IACtHR, Baena Ricardo et al. vs. Panama (Judgment of February 2, 2001),
para. 98; IACtHR, Neira Alegría vs. Peru (Preliminary Objections, Judgment of December 11, 1991), para.
29; IACtHR, Velásquez Rodríguez vs. Honduras (Judgment of July 29, 1988), para. 184; and cf. also
IACtHR, Advisory Opinion No. 17, on The Juridical Status and Human Rights of the Child (of August 28,
2002), paras. 66 and 87; IACtHR, Advisory Opinion No. 16, on The Right to Information on Consular
Assistance in the Framework of the Guarantees of the Due Process of Law (of October 1, 1999), paras. 58,
113 and 128; IACtHR, Advisory Opinion No. 14, on International Responsibility for the Promulgation and
Enforcement of Laws in Violation of the American Convention on Human Rights (of December 9, 1994),
para. 35.
21
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, tome III, Porto
Alegre/Brasil, S.A. Fabris Ed., 2003, pp. 524-525.
22
Paragraph 157 of the said Advisory Opinion.
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