3
the Confessions of Saint Augustin - as an essencial aspect of the spiritual life of the
individuals and groups, as an integral part of the social conscience itself11.
6.
The passing of time brings the living ineluctably closer to their dead, and binds
them together, and the preservation of the spiritual legacy of our predecessors
constitutes a means whereby they can communicate themselves with the living12. In
my Separate Opinion in the Judgment as to the merits in the present case Bámaca
Velásquez (2000), I saw it fit to observe that "even though the juridical subjectivity of
an individual ceases with his death (thus no longer being, when having died, a subject
of Law or titulaire of rights and duties), his mortal remains - containing a corporeal
parcel of humanity, - continue to be juridically protected (...). The respect to the mortal
remains preserves the memory of the dead as well as the sentiments of the living (in
particular his relatives or persons close to him) tied to him by links of of affection, - this
being the value juridically protected" (par. 12).
7.
And, in this line of thinking, I added:
"There is effectively a spiritual legacy from the dead to the living, apprehended by the
human conscience. Likewise, in the domain of legal science, I cannot see how not to assert
the existence of a universal juridical conscience (corresponding to the opinio juris comunis),
which constitutes, in my understanding, the material source par excellence (beyond the
formal sources) of the whole law of nations (droit des gens), responsible for the advances of
the human kind not only at the juridical level but also at the spiritual one. What survives us
is only the creation of our spirit, to the effect of elevating the human condition. This is how I
conceive the legacy of the dead, from a perspective of human rights" (par. 16).
8.
Some thinkers in the field of Law have had the attention to underline the noncoincidence between the "life" of the rights13 and that of the human beings, although
without taking their analysis to the ultimate consequences of this finding. It is clear that
the time of the life of a human being does not necessarily coincide with the time of
application (vigencia) of the
11
.
Few persons, like Saint Augustin, felt with such intensity the inscrutable mystery of the time. In the
insurmountable pages on the matter, of book XI of his Confessions (written between the years 398 to 400), to
the question "what is time?", he answered: "if no one asks me, I know it; but if I want to explain it to whoever
askes me, then I do not know it" (par. 17). And he added, as to the "three times" (or "three moments in the
spirit", namely, "expectation, attention and remembrance" - par. 37): the three times - past, present and
future - "are in the mind and I do not see them elsewhere. The present of the past is memory. The present of
the present is the vision. The present of the future is the expectation" (par. 26).
12
.
As I saw it fit to point out in my Concurring Opinion in the case of the Haitians and Dominicans of
Haitian Origin in the Dominican Republic (Provisional Measures, 2000, par. 5), and in my Separate Opinion in
the Bámaca Velásquez case (Merits, 2000, par. 15). In this last Opinion, I observed inter alia that "just as the
living experience of a human comunidad develops with the continuous flux of thought and action of the
individuals who compose it, there is likewise a spiritual dimension which is transmitted from an individual to
another, from a generation to another, which precedes each human being and survives him, in the time"
(ibid., par. 15).
13
.
The temporal dimension of the formation of Law, as well as of the juridical operations, is evident.
Time conditions, in effect, the birth, the exercise, the effectiveness and the extinction of rights. In the same
way, the temporal dimension exerts an important role in the very interpretation of the juridical norms (the socalled intertemporal law).