14
42.
The Court could and should have devoted more time to the support of the
above mentioned prohibition of jus cogens, as it was proceeding until the issue of its
transcendental Opinion No. 18 of 2003 (cf. infra). This being the first case of
mentally disabled people before this Court (para. 123), it could and should have
gone deeper on the matter. Bear in mind that an important legacy of the II World
Conference of Human Rights (Vienna, 1993), -of which I participated from the first to
the last minute, and even during its preparation process, - laid on the recognition of
legitimacy of the concern of the whole international community on the living
conditions of the population worldwide, especially of its most vulnerable segments. 35
43.
Disabled people (more than 600 million, that is, approximately 10% of the
world population) form these most vulnerable segments of the population, and the
basic principle of equality and non-discrimination gains transcendental importance
regarding those people.36 The Inter-American Convention on the Elimination of All
Forms of Discrimination against People with Disabilities of 1999 grants paramount
importance to this principle, repeatedly invoked not only in its preamble 37 but also in
its operating parts (Articles I(2)(a) e (b), II, III(1), IV(1), V(2) and VI(1) and (5)).
However, in this Judgment, the Court refers to it in a way, to my opinion, merely
oblique and unsatisfactory (para. 105), when in its own jurisprudence, there are
precious elements which could have strengthen its arguments.
44.
Thus, in its pioneer and historical Consultative Opinion No. 18 on the Legal
Status and Rights of Undocumented Migrants, (dated September 17, 2003),
internationally claimed and ahead of its time, the Court states that the above
mentioned principle of equality and non-discrimination:
"influences all acts of State power, in any of its manifestations, related to the
respect and guarantee of human rights. Said principle can effectively be considered as
imperative of general international law, as it is applicable to every State, regardless of
being a party or not of a certain international treaty, and generates effects regarding
third parties, even individuals.
(...) This Court considers that the equality and non-discrimination principle (...)
belongs to the scope of jus cogens (...). Today no legal act which conflicts with that
fundamental principle is admitted, nor is any discriminatory treatment for the prejudice
of anyone (...).
(...) Non-compliance of these obligations generates the international liability of
the State, and this is much more serious as that non-compliance violates peremptory
provisions of International Human Rights Law" (paras. 100-101 and 106).
45.
Regarding this item, I issued, in the above mentioned Consultative Opinion
No. 18, a long Concurring Opinion (paras. 1-89), in defense of the broadening of the
jus cogens material content and the wide scope of the corresponding erga omnes
protection obligations. That has invariably been my position in the core of this Court,
as proved by my Separate Opinions in the cases of Massacre de Mapiripán v.
Colombia (Judgment of September 15, 2005, paras. 25-29 of the Opinion), Acosta
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed.,
Porto Alegre, S.A. Fabris Ed., 2003, pp. 39, 91-100 and 242-251.
35
.
Cf., e.g., G. Quinn and T. Degener et alii, Derechos Humanos y Discapacidad - Uso Actual y
Posibilidades Futuras de los Instrumentos de Derechos Humanos de las Naciones Unidas en el Contexto de
la Discapacidad, N.Y./Geneva, United Nations (doc. HR/PUB/02/1), 2002, pp. 1-202.
36
37
.
Consideranda 1, 3 and 5.