SEPARATE OPINION OF
JUDGE A.A. CANÇADO TRINDADE
1.
I have concurred with my vote to the adoption of the present Judgment of the
Inter-American Court of Human Rights on Preliminary Objections in the Las Palmeras
case concerning Colombia, whereby the Court has dismissed the first, fourth and fifth
objections, and has sustained the second and third preliminary objections interposed
by the respondent State. I understand that the Court has reached a well-founded
decision and in full conformity with the relevant norms of the American Convention
on Human Rights. As, moreover, the debates on the case in the public hearing before
the Court have transcended the question of the application of such norms and have
raised theoretical points of juridical epistemology of great importance, I feel obliged
to express, for the records, my personal reflections on the matter, oriented towards
the progressive development of the International Law of Human Rights.
2.
In the public hearing of 31 May 1999 before the Court on the present Las
Palmeras case, the Inter-American Commission on Human Rights, in seeking to
sustain a coextensive interpretation and application of Article 4 of the American
Convention on Human rights and of Article 3 common to the four Geneva
Conventions on International Humanitarian Law (of 1949), related this point to the
question of the existence and observance of the obligations erga omnes of
protection 1. This is a theme which is particularly dear to me, as already for some
time I have been sustaining, within the Court, the urgent need to promote the
doctrinal and jurisprudential development of the legal regime of the obligations erga
omnes of protection of the rights of the human being aiming at securing their
application in practice, what is bound to foster greatly the future evolution of the
International Law of Human Rights 2.
3.
The pleadings of the Inter-American Commssion in the aforementioned public
hearing before the Court of 31.05.1999 in the present Las Palmeras case, pertaining
to Colombia, correspond, thus, to the concerns which I have already expressed in
the Court - mainly in the Blake versus Guatemala case (1998-1999) - about the need
to devote greater attention to this theme 3. In that memorable hearing in the present
Las Palmeras case, there was no discrepancy between the Commission and the
respondent State - in a noticeable demonstration, on the part of both, of procedural
1.
Cf. Inter-American Court of Human Rights, Las Palmeras Case - Transcripción de la Audiencia
Pública sobre las Excepciones Preliminares Celebrada el 31 de Mayo de 1999 en la Sede de la Corte, pp.
19-20 and 35-38 (mimeographed - internal circulation).
2.
Thus, for example, in my Separate Opinion in the Court's Judgment (of 24.01.1998) in the Blake
versus Guatemala case (Merits), I pondered: - "The consolidation of erga omnes obligations of protection,
as a manifestation of the emergence itself of imperative norms of international law, would represent the
overcoming of the pattern erected upon the autonomy of the will of the State. The absolute character of
the autonomy of the will can no longer be invoked in view of the existence of norms of jus cogens. It is
not reasonable that the contemporary law of treaties continues to align itself to a pattern from which it
sought gradually to free itself, in giving expression to the concept of jus cogens in the two Vienna
Conventions on the Law of Treaties. (...)" (paragraph 28). - Subsequently, in my Separate Opinion in the
Court's Judgment (of 22.01.1999) in the same Blake versus Guatemala case (Reparations), I added: "Our purpose ought to lie precisely upon the doctrinal and jurisprudencial development of the peremptory
norms of International Law (jus cogens) and of the corresponding obligations erga omnes of protection of
the human being. It is by means of the development in this sense that we will achieve to overcome the
obstacles of the dogmas of the past, as well as the current inadequacies and ambiguities of the law of
treaties, so as to bring us closer to the plenitude of the international protection of the human being"
(paragraph 40).
3.
Cf. quotations in note (2), supra.