12
law of treaties, in the framework of Public International Law, and those of the
International Law of Human Rights.
35.
A pertinent illustration, in the contentious proceedings of the present Blake
case, is found in the difficulties experienced both by the Inter-American Commission
of Human Rights and by the representative of the relatives of the disappeared person
(Ms. Joanne Hoeper), as well as by the respondent State, in presenting, in the public
hearing before the Court of 10.06.1998, distinct arguments as to the claims for
reparations and indemnities, and costs, in relation to the violations of Articles 5 and
8(1), in combination with Article 1(1), of the American Convention, established by
the Court in the Judgment on the merits of 24.01.1998, in a form "separated" from
the detention, disappearance and death of Mr. Nicholas Chapman Blake.
36.
I do not see how to "separate" the intense suffering of the relatives of the
disappeared person (Article 5), also victims in the present case (cf. infra), and the
lack of the due process of law and of the investigation of the facts (Article 8(1)), in
combination with the general duty to respect the protected rights and to secure their
free and full exercise (Article 1(1)), from the context of the forced disappearance of
Mr. Nicholas Chapman Blake. The debates of the public hearing before the Court of
10.06.1998, in which all those who intervened - the Inter-American Commission on
Human Rights, the representative of the relatives of the victim, and the respondent
State, - submitted as it was possible to them their points of view in conformity with
their criteria and the premises from which they started32, disclose, nevertheless, the
artificiality of the fragmentation or decomposition of the crime of forced
disappearance of person.
37.
This artificiality has marked the consideration of the present case in all its
phases, - preliminary objections, merits and reparations. The inescapable truth is
that the violations of Articles 5 and 8(1), in combination with Article 1(1), of the
American Convention, were established as such by reason of the continuing and
complex crime of the disappearance of Mr. Nicholas Chapman Blake, with
implications for the determination of the reparations. The artificiality referred to,
resulting from the application of a classic postulate of the law of treaties, has
conditioned the very decisions of the Court in all the phases of the case, preliminary objections, merits, and, now, reparations. It has, furthermore, generated
a gap between the responsibility of the State Party to the American Convention of
Human Rights for violations of the protected rights and the jurisdiction - limited
ratione temporis - of the judicial organ of protection, what, in its turn, brings about
the undesirable situation of the lack of a jurisdictional basis for the determination of
the engagement of the responsibility of the State for the totality of the acts that took
place, and for the establishment of their juridical consequences.
38.
It does not seem to me at all reasonable that, in the context of a concrete
case such as Blake versus Guatemala, a whole significant doctrinal evolution of
struggle against grave violations of human rights is simply vanished by the
imposition of a temporal limitation, in conformity with a classic postulate of the law
of treaties but to the detriment of the development of the International Law of
Human Rights. This paradox is even more worrisome in the face of the violation of
fundamental non-derogable rights (starting with the right to life), protected by the
32.
Cf. the oral arguments reproduced in: Inter-American Court of Human Rights, Transcripción de la
Audiencia Pública Celebrada en la Sede de la Corte el 10 de Junio de 1998 sobre las Reparaciones en el
Caso Blake, pp. 3-4, 6, 11-17, 19-20 and 22-24 (mimeographed, internal circulation).