64.
If, in that historical case of Barrios Altos, the Inter-American Court would have
followed a restrictive line of reasoning, it is very possible that it would not have provided
the important clarification regarding something that was not specified in the Judgment on
merits (of 03.14.2001) in the same case of Barrios Altos. The matter presented to the
Court in the request for Interpretation of the Judgment had not been dealt with in the
contentious proceedings that culminated with the mentioned Judgment on merits of the
Court, but not even because of that did the Court deny the clarification requested a
posteriori, precisely to clarify the sense or scope of the mentioned judgment.
65.
In its Interpretation of the Judgment in the case of Barrios Altos, the Court acted
in full awareness of its fundamental role of stating which is the Law. Thus, the impact of
its decision on our region, on our part of the world, was way beyond what we anticipated
in 2001. Article 29(3) of the Rules of Procedure, invoked by the Court in the dispositif of
the present Interpretation of a Judgment, cannot be considered as grounds for the
decision made by it: Article 29(3) refers to the impossibility to contest judgments and
orders of the Court, - which is not the case. Here, once again, its restrictive predisposition
is present, which, along with the eagerness of “productivity” of decisions do not always
produce satisfactory or well-grounded results.
66.
Actually, this tendency has been occurring for some time (as of the end of 2004),
as stated in my extensive Dissenting Opinions (paras. 1-49 and 1-75, respectively) in the
Judgments on preliminary objections (of 11.23.2004) and of merits and reparations (of
03.01.2005), in the case of the Serrano Cruz Sisters versus El Salvador.52 To evoke
another example, half a decade after the transcendental Interpretation of the Judgment
in the case of Barrios Altos, the Court no longer seemed to have the same willingness to
clarify that presented before it, v.g., in the request for Interpretation of Judgment in the
case of the Moiwana Community versus Suriname.
67.
In its Interpretation of the Judgment of 02.08.2006 in this case of the Moiwana
Community, the Court stopped and limited itself to the point where I saw myself in the
obligation to contribute, in a Concurring Opinion (paras. 1-32), with what the Court
preferred to abstain from doing. I focused my reflections on three aspects, to which I
attributed special importance, specifically: a) the delimitation, demarcation, titling, and
handing over of land as a form of reparation (non-pecuniary); b) the guarantee of the
voluntary and sustainable return (of the members displaced from the Community); and
c) the need to rebuild and preserve the cultural identity.53 In that case of the Moiwana
Community, as in the present case of the Castro Castro Prison, I have stayed loyal, - as
during the totality of my term as Full Judge of the Inter-American Court, - to my
conception of the fundamental role of an international human rights court, which is not
exhausted with “solving” a controversy submitted to its knowledge, but instead also
requires that it indicate which is the Law.
.
Text of these Dissenting Opinions reproduced in: A.A. Cançado Trindade, Derecho
Internacional de los Derechos Humanos - Esencia y Trascendencia (Votos en la Corte
Interamericana de Derechos Humanos, 1991-2006), México, Edit. Porrúa/Universidad
Iberoamericana, 2007, pp. 466-482 and 483-507, respectively.
52
.
53
Text of my referred Concurring Opinion, reproduced in ibid., pp. 683-693.
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