opportunities to present all their arguments and evidence before the Court; b) they
guarantee compliance with the principle of having the presence of both parties to an
action,16 and therefore the parties feel, themselves, satisfied that all their evidence
has been produced before the Court for the determination of the facts, and all their
arguments have been presented before the Court for its evaluation of what occurred;
and c) they constitute, for the victims, as previously stated, a form of reparation, and
for them one of the most important.
33.
To the contrary of what is underlying the decision of the majority of the Court
regarding the specific matters in the present case, the doubts that have to be
clarified, both juridical and factual, are not only the Judges’ doubts, but also – and
mainly – the parties’ doubts. And, for this purpose, public hearings are not only more
appropriate but also necessary. Therefore, in the course of the present proceedings of
Interpretation of the Judgment, I allowed myself to address a letter to the Secretariat
of the Court, on August 10, 2007, recommending that a public hearing be held17 in
relation to the requests – presented by all the procedural parties participating in the
present case of the Castro Castro Prison –of Interpretation of the Judgment, but the
majority of the Tribunal preferred to do without said hearing.
34.
The present case of the Castro Castro Prison is paradigmatic in what refers to
the bad conditions of detention and the violent attack against defenseless people, who
were under the State’s custody. The petitioners presented arguments better
substantiated than those of the Inter-American Commission itself (v.g., regarding the
matter of the principle of proportionality), in a demonstration that the victims, as
subjects of International Law, are in better conditions of presenting their case before a
tribunal such as the Inter-American Court than any intermediary presumably acting
on their behalf. In reference to the international subjectivity of groups of individuals,
the case of the Moiwana Community versus Suriname (Judgment on merits of
06.15.2005) presents an appropriate illustration of a case of rights of the people.18
.
For a recent general study, cf., [Various Authors,] Le principe du contradictoire
devant les juridictions internationales (eds. H. Ruiz Fabri and J.-M. Sorel), Paris,
Pédone, 2004, pp. 1-195.
16
.
17
IACHR, document CDH-11.015/288, pp. 1-2 (internal circulation).
.
And, specifically, on the legal subjectivity of people within international law.
For example, the Court recalled, in its Judgment, that six Maroons communities in
Suriname, more than two centuries before it became an independent State,
celebrated peace treaties with the Dutch colonial authorities (the N'djukas in 1760),
later renovated, thus obtaining their freedom from slavery (paras. 83(1) and (2)). In
my Concurring Opinion in said case of the Moiwana Community, I considered that "the
Maroons, - the N'djuka in particular, - regard these treaties as still valid and
authoritatives in the relations with the successor State, Suriname. This means that
those peoples exercised their attributes of legal persons in international law, well
before the territory where they lived acquired statehood. This reinforces the thesis
which I have always supported, namely, that the State are not, and have never been,
the sole and exclusive subjects of international law" (para. 6). And I added: "Human
beings, individually and collectively, have emerged as subjects of international law.
The rights protected disclose an individual and a collective or social dimensions, but it
is the human beings, members of such minorities or collectivities, who are, ultimately,
the titulaires of those rights" (para. 10). As holders of rights, they can present their
own arguments before a tribunal such as the Inter-American Court with full freedom
of expression (para. 12). – Actually, in a more distant past, treaties were celebrated
between people and human societies with a minimum level of organization, much
before the emergency of the Westphalian inter-state order in the XVII century, which
proves that, both international juridical capacity, and the capacity to celebrate treaties
18