12
In my eyes, to stop the advances made by the integrative hermeneutics of the InterAmerican Court regarding the matter under study, assumed by the Court as of the
Judgment of Castillo Páez, would be like letting the rock fall down the mountain.
Regarding the subject under study, one must start with the whole in order to reach the
details, and not vice versa, because, on the contrary, you incur in the great risk of
seeing only a few of the closest tree, and missing the entire forest.
33.
Fortunately, in the case of the Pueblo Bello Massacre, there was a general
consensus of the Court in dealing jointly, as should be, with Articles 8(1) and 25 of the
American Convention, in relation with its Article 1(1), - but I can not believe that only
24 hours after achieving said general consensus of the Court, in the same sense, in the
adoption of the judgment in the case of the Pueblo Bello Massacre, there was an intent
– by a very small minority – to completely change the criteria in this sense, without
the most minimum justification from the facts of the present case of López Alvarez.
This has happened before, and the Court can not simply be at the mercy of the wind if
it wants to maintain its credibility.
34.
I am, as I have always been open to changes in the Court’s position, as long as
they are in favor of ensuring a more effective protection of the human being. I do not
accept regressive positions, that damage said protection, and that do not present the
least persuasive force and due foundation. This is why I have always tried to, for as
long as possible, throughout the years before this Court, duly justify my position, that
has always been the result of a lot of though, and without doubt placing the victims in
the central position they deserve within the present realm of protection.
35.
Little after the previously analyzed advances, in the sense of an integrative
hermeneutics in the case-law of the Inter-American Court, I wrote, in my Tratado de
Derecho Internacional de los Derechos Humanos (volume II, 1999), in an almost
premonitory tone, that
"É importante que este avanço na jurisprudência da Corte Interamericana seja
preservado e desenvolvido ainda mais no futuro. (...) No sistema interamericano de
proteção, a jurisprudência sobre a matéria encontra-se em sua infância, e deve continuar a
ser cuidadosamente construida. O direito a um recurso efetivo ante os tribunais nacionais
competentes no âmbito da proteção judicial (artigos 25 e 8 da Convenção Americana) é
muito mais relevante do que até recentemente se supôs, em um continente, como o
nosso, marcado por casuísmos que muito freqüentemente privam os indivíduos da
proteção do direito. Requer considerável desenvolvimento jurisprudencial nos próximos
anos."25
36.
Even so, I hoped not to have to go into details again regarding this matter (and
specifically the intimate relationship between Articles 25 and 8 of the American
Convention), in my point of view pacific in the most lucid legal international doctrine, even having in its favor the interpretation and application of the treaties on human
rights – to which I dedicated a chapter of no less than 177 pages in my Treaty.26
Today, at the beginning of 2006, I see that this is not so, not even in the heart of this
Court. The rock has to be pushed again toward the top of the mountain, knowing that
tomorrow it may fall back down.
25
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, volume II, Porto
Alegre/Brazil, S.A. Fabris Ed., 1999, p. 67, para. 70.
26
Cf. ibid., chapter XI, pp. 23-200.