26
Corporal punishment, such as the one examined in the cas d'espèce, is per se in breach
of the Convention (Article 5(1) and (2)) and of peremptory norms of international law
(paragraphs 70, 88 and 100). In several of my Individual Opinions presented in this
Court, I have drawn attention to the relevance of the expanding material content and
scope of jus cogens. The present Judgment is inserted into this reassuringly evolutive
jurisprudential construction.
87.
Thus, in its historical Advisory Opinion n. 18 on The Juridical Condition and the
Rights of the Undocumented Migrants (of 17.09.2003), the Inter-American Court
significantly held that the aforementioned fundamental principle of equality and nondiscrimination, in the present stage of evolution of International Law, "has entered into
the domain of the jus cogens"; on such principle, which "permeates every legal order",
- the Court correctly added, - "rests the whole juridical structure of the national and
international public order"89. The Court, moreover, referred to the evolution of the
concept of jus cogens, transcending the ambit of both the law of treaties and of the law
of the international responsibility of the State, so as to reach general international law
and the very foundations of the international legal order90.
88.
In support of this view, in my Concurring Opinion in that pronouncement of the
Court (Advisory Opinion n. 18), after summarizing the history of the entry of jus cogens
into the conceptual universe of international law, I maintained that
"The emergence and assertion of jus cogens in contemporary
International Law fulfil the necessity of a minimum of verticalization in
the international legal order, erected upon pillars in which the juridical
and the ethical are merged. (...)
On my part, I have always sustained that it is an ineluctable
consequence of the affirmation and the very existence of peremptory
norms of International Law their not being limited to the conventional
norms, to the law of treaties, and their being extended to every and any
juridical act91. Recent developments point out in the same sense, that
is, that the domain of the jus cogens, beyond the law of treaties,
encompasses likewise general international law92. Moreover, the jus
cogens, in my understanding, is an open category, which expands itself
to the extent that the universal juridical conscience (material source of
all Law) awakens for the necessity to protect the rights inherent to each
human being in every and any situation".
To the international objective responsibility of the States
corresponds necessarily the notion of objective illegality (one of the
elements underlying the concept of jus cogens). In our days, no one
would dare to deny the objective illegality of acts of genocide93, of
89
. Paragraph 101, and cf. resolutory points ns. 2 and 4 of Advisory Opinion n. 18.
90
. Paragraphs 98-99 of Advisory Opinion n. 18.
91
. Cf. A.A. Cançado Trindade, Tratado de Direito Internacional..., op. cit. supra n. (97), vol. II, pp. 415-416.
92
. For the extension of jus cogens to all possible juridical acts, cf., e.g., E. Suy, «The Concept of Jus Cogens in
Public International Law», in Papers and Proceedings of the Conference on International Law (Langonissi,
Greece, 03-08.04.1966), Geneva, C.E.I.P., 1967, pp. 17-77.
93
. In its Judgment of 11 July 1996, in the case concerning the Application of the Convention against Genocide,
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