5
very dear to me, - to the awakening of the universal juridical conscience, as the
material source par excellence of International Law itself.
14.
As I have warned in this respect in my Concurring Opinion in the Advisory
Opinion of the Court on The Right to Information on Consular Assistance in the
Framework of the Guarantees of the Due Process of Law (1999) 15,
- "(...) The very emergence and consolidation of the corps juris of the
International Law of Human Rights are due to the reaction of the universal juridical
conscience to the recurrent abuses committed against human beings, often warranted by
positive law: with that, the Law (el Derecho) came to the encounter of the human being,
the ultimate addressee of its norms of protection.
(...) With the dismystification of the postulates of voluntarist positivism, it
became evident that one can only find an answer to the problem of the foundations and
the validity of general international law in the universal juridical conscience, starting with
the assertion of the idea of an objective justice. As a manifestation of this latter, the rights
of the human being have been affirmed, emanating directly from international law, and not
subjected, thereby, to the vicissitudes of domestic law" (pars. 4 and 14) 16.
15.
More recently, in my Separate Opinion in the case of Bámaca Velásquez 17, I
allowed myself to insist on the point; in reiterating that the advances in the domain of
the international protection of the rights of the human person are due to the universal
juridical conscience (par. 28), I expressed my understanding to the effect that
- "(...) 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" (par. 16).
16.
In my view, both the international case-law, and the practice of States and
international organizations, as well as the more lucid juridical doctrine, provide
elements wherefrom one may detect the awakening of a universal juridical conscience.
This allows us to reconstruct, at this beginning of the XXIst century, International Law
itself, on the basis of a new paradigm, no longer State-centred, both rather
anthropocentric, placing the human being in a central position and bearing in mind the
problems which affect humankind as a whole. Thus, as to the international case-law,
the closest example lies in the case-law of the two international tribunals of human
rights which exist today, the European and Inter-American Courts of Human Rights 18.
One may add to it the case-law emerging from the two ad hoc International Penal
Tribunals, for ex-Yugoslavia and Rwanda. And the case-law itself of the International
Court of Justice contains elements developed as from, e.g., elementary considerations
of humanity 19.
15
.
IACtHR, Advirosy Opinion of 01.10.1999, Series A, n. 16.
16
.
I have reiterated the same point in my Concurring Opinion in the case of the Haitians and
Dominicans of Haitian Origin in the Dominican Republic (Provisional Measures of Protection, Resolution of
18.08.2000, par. 12).
17
.
IACtHR, Judgment on the Merits, of 25.11.2000.
18
.
The first Protocol (de 1998) to the African Charter on Human and Peoples' Rights provides for the
creation, - when the Protocol of Burkina Faso enters into force, - of an African Court of Human and Peoples'
Rights, which has not yet been established.
19
.
Cf., e.g., A.A. Cançado Trindade, "La jurisprudence de la Cour Internationale de Justice sur les
droits intangibles / The Case-Law of the International Court of Justice on Non-Derogable Rights", Droits