subjects of the law. Both parties – the plaintiffs and the defendant – have the right to
wait for reason and persuasion of what is fair. This right has given way to a human
aspiration that has been transmitted from generation to generation, throughout
centuries.
41.
Currently said right has been invoked in relation to the tasks of contemporary
international courts. Actually, the judgment of a tribunal, - as has been stated by J.G.
Merrills, - must give “cumulative reasons” that substantiate its conclusion, so that it has
persuasion; this applies with even more strength in an international human rights court,
whose applicable law is oriented not so much by rules, but by general principles of law.32
This is the only way in which law can be applied and at the same time developed, to
obtain results in the search for the full realization of justice, which corresponds in my own
point of view to the exercise of the international judicial function.
42.
Studies from the past contrasted the "judicial restraint" with the "judicial
legislation",33 when referring to the distance between the orthodox vision and the creative
one, respectively, of the exercise of the international judicial function. I consider it more
appropriate to characterize them in another way, as the judicial self-limitation, which I
consider completely inadequate for an international human rights court, and the judicial
impartiality, which I have defended for years within this Court, in the search for the
realization of justice. These different conceptualizations have been reflected, throughout
the years, in the Court’s work in matters of the Interpretation of Judgments.
43.
I already referred to the extraordinary contribution, acknowledged internationally,
given by the Inter-American Court to the evolution of International Human rights Law
itself, through its Interpretation of the Judgment in the case of Barrios Altos (supra).
There is a sensible distance between the Court’s position of judicial impartiality in the
Interpretation of the Judgment in the case of Barrios Altos, which has won it the
international acknowledgment of the most lucid doctrine on international law, and the
restrictive predisposition that can be clearly concluded, v.g., from paragraphs 25-26 of
the present Judgment of Interpretation in the case of the Castro Castro Prison.34
44.
I allow myself to recall here another example of the Court’s jurisprudence. In its
Interpretation of a Judgment (of 10.01.1999) in the case of Blake versus Guatemala, the
Inter-American Court recalled the prevailing criterion in the international jurisprudence in
this regard, according to which the interpretation of a judgment implies not only the
precision of that decided by the Tribunal, but also the determination of the scope, the
sense, and the purpose of the decision, pursuant to the considerations that motivated it
(para. 18).
.
J.G. Merrills, The Development of International Law by the European Court of
Human Rights, 2a. ed., Manchester, University Press, 1993, pp. 31, 34-35, 177, 205, and
208-210, and cf. pp. 231-234 and 249-252.
32
.
Cf., v.g., Hersch Lauterpacht, The Development of International Law by the
International Court, London, Stevens, 1958, pp. 75-223.
33
.
Once the Court declared the admissibility of all the requests for interpretation
(both of the appellant State and the legal representatives – different to the common
intervener – of a group of victims), it had to clarify all the matters presented to it, instead
of formulating the warning – without cost -, in the cas d'espèce – of the mentioned
paragraphs 25-26 of the present Judgment.
34
13