145. It is not my objective here to reiterate the extensive considerations I
developed in my mentioned Curso General at the Academy of La Haya, but instead
complement them with an additional aspect, of great importance, which must not go
by unnoticed: that of the expansion of the material content of the jus cogens, to
which I have dedicated myself with complete conviction, in the recent jurisprudence of
the Inter-American Court. In effect, during my more than twelve years as a Full Judge
of the Inter-American Court, the latter (followed by the International Criminal Court
ad hoc for the former Yugoslavia), has been the contemporary tribunal that has
contributed the most in the conceptual evolution of the jus cogens, in the faithful
exercise of its duties of protection of human beings, even when it is in situations of
complete adversity or vulnerability.
146. More than twelve years ago, I warned about the need of a jurisprudential
development of the prohibitions of the jus cogens, in my Concurring Opinions in the
case of Blake versus Guatemala (preliminary objections, Judgment of 07.02.1996;111
merits, Judgment of 01.24.1998;112 and reparations, Judgment of 01.22.1999113). In
an initial stage of notable jurisprudencial evolution (in contentious cases), the Court
stated the absolute prohibition, of the jus cogens, of torture, in any and all
circumstances, followed by the same prohibition of cruel, inhuman, or degrading
treatments (Judgments of 08.18.2000, in the case of Cantoral Benavides versus Peru,
para. 99; of 07.08.2004, in the case of the Gómez Paquiyauri Brothers versus Peru,
paras. 111-112; of 09.07.2004 in the case of Tibi versus Ecuador, para. 143; among
others114).
147. In the same line of thought, I reiterated my position in this regard in my
Concurring Opinion to the Judgment (of 03.14.2001) in the case of Barrios Altos
versus Peru,115 as well as in my Separate Opinion to the Judgment (09.01.2001) in
the case of Hilaire versus Trinidad and Tobago;116 in my Concurring Opinion to the
Judgment (of 11.27.2003) in the case of Maritza Urrutia versus Guatemala;117 in my
Separate Opinion to the Judgment (of 07.08.2004) in the case of the Gómez
Paquiyauri Brothers versus Peru (of 07.08.2004);118 and in my Dissenting Opinion in
.
Paras. 11 and 14 of the Opinion.
.
Paras. 15, 17, 23, 25, and 28 of the Opinion.
.
Paras. 31, 40, and 45 of the Opinion.
111
112
113
.
The IACDH reiterated its position in its Judgment of 04.06.2006 in the case of
Baldeón García versus Peru (para. 121). A year before that, the Judgment (of
03.11.2005) in the case of Caesar versus Trinidad and Tobago, in the same line of
reasoning of its jurisprudential construction of the jus cogens, correctly took another
step forward, when it stated the absolute prohibition, characteristic of the sphere of
the jus cogens, of torture as well as of other cruel, inhuman, and degrading
treatments. The absolute prohibition of both torture and said treatments, in any and
all circumstances, as a prohibition of the jus cogens, is today jurisprudence constante
of the Court.
114
.
Paras. 10-11 and 25 of the Opinion.
.
Para. 38 of the Opinion.
.
Paras. 6, 8-9, and 12 of the Opinion.
115
116
117
.
118
Paras. 1, 37, 39, 42, and 44 of the Opinion.