2
cooperation and loyalty - as to the possibility to take into account Article 3 common
to the four Geneva Conventions on International Humanitarian Law as element of
interpretation for the application of Article 4 of the American Convention on Human
Rights.
4.
But up to this point took place the concurrence, on the issue, between the
Commission and the State at the above-mentioned public hearing. As a matter of
fact, it could hardly have been otherwise, as the interpretative interaction between
distinct international instruments of protection of the rights of the human person is
warranted by Article 29(b) of the American Convención (pertaining to norms of
interpretation). In fact, such exercise of interpretation is perfectly viable, and
conducive to the assertion of the right not to be deprived of the life arbitrarily (a
non-derogable right, under Article 4(1) of the American Convention) in any
circumstances, in times of peace as well as of non-international armed conflict (in
the terms of Article 3 common to the Geneva Conventions of 1949).
5.
There is, nevertheless, a distance between the exercise of interpretation
referred to, - including here the interpretative interaction, - and the application of
the international norms of protection of the rights of the human person, the Court
remaining entitled to interpret and apply the American Convention on Human Rights
(Statute of the Court, Article 19). In characterizing the second and third objections
interposed by the respondent State in the present case as preliminary objections
properly (as to competence and not as to admissibility), rather than as defenses as
to the merits, the Court proceeded to decide them, in my understanding correctly, in
limine litis10, - by an imperative of juridical stability as well as of "prudence and
economy of the judicial function"11.
6.
At the sustantive level, the considerations developed on the protection of the
fundamental right to life lead us to enter, unequivocally, into the domain of jus
cogens12, with the corresponding obligations erga omnes of protection13, to which
reference was made in the public hearing. In this respect, in spite of sharing the
concern expressed by the Inter-American Commission at the aforementioned public
hearing of 31.05.1999 before this Court, my line of reasoning on the matter is
distinct.
4.
Cf. also the Statute of the Commission, Article 1(2).
5.
Cf., on the need to decide preliminary objections in limine litis, my Separate Opinions in the
Gangaram Panday versus Suriname case (Judgment of 04.12.1991), paragraph 3; and in the Castillo Páez
versus Peru case (Judgment of 30.01.1996), paragraph 4; and in the Loayza Tamayo versus Peru case
(Judgment of 31.01.1996), paragraph 4.
6.
G. Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour Internationale, Paris,
Pédone, 1967, pp. 182-183; cf. also, on the matter, S. Rosenne, The Law and Practice of the International
Court, 2nd. rev. ed., Dordrecht, Nijhoff, 1985, p. 464.
7
.Inter-American Court of Human Rights, Villagrán Morales and Others versus Guatemala case
(case of the "Street Children"), Judgment of 19.11.1999, Joint Concurring Opinion of Judges A.A. Cançado
Trindade and A. Abreu Burelli, paragraph 2: - ""There can no longer be any doubt that the fundamental
right to life belongs to the domain of jus cogens".
8.
On the relationship between jus cogens and erga omnes obligations, cf., inter alia: M. Byers,
"Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules", 66 Nordic Journal of
International Law (1997) pp. 211-239; A.J.J. de Hoogh, "The Relationship between Jus Cogens,
Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective", 42 Austrian Journal
of Public and International Law (1991) pp. 183-214.