6
beings by the public power is no longer alien to International Law. On
the contrary, it is a part thereof, as the rights to which every human
being is entitled derive directly from International Law. Individuals are,
in fact, subjects of domestic as well as international law. And they
have a central position in the scope of Human Rights International
Law, whether or not they are victims of violations of their
internationally consecrated rights."177
II.
Acknowledgment of International Liability by the Respondent
Government.
16.
Regarding to the preliminary considerations of this Judgment in the case of
Ximenes-Lopes, we must not disregard that the Inter-American Court pondered the
acknowledgment of international liability by the Respondent State as a “positive
contribution to the development of this process and to the enforcement of the
principles that inspire the American Convention in Brazil” (para. 80), particularly
regarding the acknowledgment of the violation of Articles 4 and 5 of the Convention
(paragraphs 119 and 122). With that, the controversy regarding certain facts of the
case was over, although the Court wouldn’t have been naturally exempted from
proceeding, as it was the case, according to its own assessment of the facts.
17.
Moreover, as it arises from the public hearing before this Court of November
1 and December 1, 2005, the parties involved showed a constructive spirit of
procedural cooperation and common sense and professionalism when forwarding the
documentation to the Court and during the presentation of their oral arguments. This
allowed the Court to fulfill its duty of effective response by the judicial system within
a reasonable time under the American Convention,- in contrast with the events
occurred in the scope of domestic law, - which stresses the relevance of international
jurisdiction.
18.
Regarding the correct ruling by this Court of the preliminary objection filed by
the Respondent Government, there is no need to entirely repeat my concurring
opinion in the former Judgment of November 30, 2005 in this case of XimenesLopes, but only the last paragraph, where, regarding to the need of a greater degree
of reflection on the improvement of the proceedings under the American Convention
and a clearer explanation of the role of the Commission under the Convention, I
stated:
"My opinion regarding this matter is very clear, and it is
recorded in the Protocol Project for the Human Rights American
Convention (Projeto de Protocolo à Convenção Americana sobre
Direitos Humanos) where I submitted, in the name of the InterAmerican Court, before the competent bodies of the Organization of
American States (OAS) in 2001178, which sets forth the human being
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto
Alegre, S.A. Fabris Ed., 2003, pp. 434-436, paras. 48 and 50.
177
.
A.A. Cançado Trindade, Bases para un Proyecto de Protocolo a la Convención Americana sobre
Derechos Humanos, para Fortalecer Su Mecanismo de Protección, vol. II, 2nd. ed., San José de Costa
Rica, Inter-American Court of Human Rights, 2003, pp. 1-1015.
178