General Assembly of the OAS from 2001 up to 2008 (in the corresponding documents of
the Assemblies of San Jose, Costa Rica in 2001, of Bridgetown/Barbados in 2002, of
Santiago, Chile in 2003, of Quito in 2004, as well as those of the following Assemblies of
2005-2006120 and 2007-2008). The aforementioned Report gives hope that the jus standi
of individuals directly before the Inter-American Court may be reached in the future.
3.
The Right to a Fair Trial as an Imperative of the Jus Cogens.
144. I finally move on to the last aspect of my final reflections in the present
Concurring Opinion, regarding the right to a fair trial as an imperative of the jus cogens.
Three years ago, in my Curso General de Derecho Internacional Público, offered in the
Academy of International Law of The Hague in 2005, I characterized the doctrinal and
jurisprudential construction of the international jus cogens as characteristic of a new jus
gentium, International Law for Humanity. I also held that, in this understanding, and
according to its definition, the international jus cogens goes beyond treaties law,
extending to the law on the State’s international responsibility, and to the entire corpus
juris of Contemporary International law, and including, finally, all juridical acts. By
covering all International Law, it also projects itself on domestic law, invalidating any
measure or act not compatible with it. The jus cogens has a direct effect on the
foundations themselves of a Universal International Law and it is a basic pillar of the new
jus gentium.121
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;122 merits,
demonstration of consent, following the ratification of the Convention.
.
OAS, doc. AG/RES.2129 (XXXV-0/050), of 06.07.2005, pp. 1-3; OAS, doc.
CP/CAJP-2311/05/Rev.2, of 02.27.2006, pp. 1-3. Cf., in this regard, A.A. Cançado
Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI, 2a. ed.,
Santiago, Editorial Jurídica de Chile, 2006, pp. 9-10 and 515-524.
120
.
A.A. Cançado Trindade, "International Law for Humankind: Towards a New Jus
Gentium - General Course on Public International Law - Part I", 316 Recueil des Cours de
l'Académie de Droit International de la Haye (2005), cap. XII, pp. 336-346.
121
.
122
Paras. 11 and 14 of the Opinion.
43