13
committed to the realization of justice. It is, furthermore, an acknowledgement of the
superiority of the judicial means of settlement of disputes, bearing witness of the
prevalence of the rule of law in democratic societies, and discarding any surrender to
State voluntarism.
Since the visionary writings and ideas of Nicolas Politis and Jean Spiropoulos in
Greece, Alejandro Álvarez in Chile, André Mandelstam in Russia, Raul Fernandes in Brazil,
René Cassin and Georges Scelle in France, Hersch Lauterpacht in the United Kindgom,
John Humphrey in Canada, among others, it was necessary to wait for decades for the
current developments in the realization of international justice to take place, nowadays
enriching rather than threatening international law, strengthening rather than
undermining international law. The reassuring growth of international tribunals is a sign
of our new times, and we have to live up to it, to make sure that each of them gives its
contribution to the continuing evolution of international law in the pursuit of international
justice" 27.
47.
In the sphere of the protection of fundamental human rights, the growth and
consolidation of the international human rights jurisdictions on the American and the
European continent testify to the notable progress made by the ancient ideal of
international justice today. Both the European and the Inter-American Court have
correctly established limits to State voluntarism; they have safeguarded the integrity
of their respective human rights conventions, and the primacy of considerations of
ordre public over the will of individual States; they have set very high standards of
State conduct and a certain degree of control over the imposing of undue restrictions
by States; and it is encouraging to see that they have strengthened the position of
the individual as a subject of international human rights law, with full procedural
capacity.
48.
With regard to the foundation of their contentious jurisdiction, eloquent
illustrations of their firm stance in support of the integrity of the protection
mechanisms of the two conventions are to be found in recent decisions of the
European Court 28 and the Inter-American Court, for example. 29 Both international
human rights tribunals, when correctly deciding basic procedural questions posed in
recent cases, have appropriately used the mechanisms of public international law to
strengthen their respective jurisdictions for the protection of the individual.
49.
The Inter-American and the European Courts of Human Rights have thus
decisively safeguarded the integrity of the mechanisms of protection of the American
and European Conventions on Human Rights, which ensure the juridical
emancipation of the individual vis-à-vis his own State. This is a significant
jurisprudential construct which, in my opinion, does not allow any going back.
Therefore, in my opinion, it is necessary to revert, as soon as possible, the
unfortunate decision of the majority of the members of the Court in relation to the
second operative paragraph of this judgment in the Serrano Cruz Sisters v. El
27
.
A.A. Cançado Trindade, Speech on the Occasion of the Opening of the Judicial Year of the European
Court of Human Rights (Thursday, 22 January 2004) / Discours dans l'audience solennelle à l'occasion de
l'ouverture de l'année judiciaire de la Cour Européenne des Droits de l'Homme (le jeudi 22 janvier 2004),
Strasbourg, Council of Europe/ECtHR doc. No. 926464, of January 22, 2004, p. 11, paras. 10-11. And cf. text
also reproduced in European Court of Human Rights/Cour européenne des droits de l'homme, Annual Report
2003/Rapport annuel 2003, Strasbourg, C.E., 2004, p. 44, paras. 10-11. And cf. likewise, A.A. Cançado
Trindade, "The Merits of Coordination of International Courts on Human Rights", 2 Journal of International
Criminal Justice - Oxford (2004) pp. 309-312.
28
.
In the Belilos versus Switzerland case (1988), in the Loizidou versus Turkey case (Preliminary
Objections, 1995), and in the I. Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa versus Moldovia and the
Russian Federation case (2001).
29
.
In the Constitutional Tribunal and Ivcher Bronstein vs Peru cases, Competence (1999), and in the
Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago (Preliminary objections, 2001).