that it could also include the right to access justice,122 and tend to the urgent needs of
protection of human beings. I did it, inter alia, in my Concurring Opinion (dedicated to
the right to access justice lato sensu) to the Judgment of the Court (of 01.31.2006) in
the case of the Pueblo Bello Massacre versus Colombia, in which I considered inter alia
that
The indivisibility between Articles 25 and 8 of the American
Convention that I maintain (…) leads me to characterize access to
justice, understood as the full realization of justice, as forming part of
the sphere of jus cogens; in other words, that the inviolability of all
the judicial rights established in Articles 25 and 8 considered together
belongs to the sphere of jus cogens. There can be no doubt that the
fundamental guarantees, common to international human rights law
and international humanitarian law,123 have a universal vocation
because they are applicable in any circumstance, constitute a
peremptory right (belonging to jus cogens), and entail obligations
erga omnes of protection." (para. 64)
150. Little afterwards, in my Concurring Opinion in the case of López Álvarez versus
Honduras (2006) I allowed myself to insist on my understanding in the sense that the
right to Law (the access to justice lato sensu) is an imperative of the jus cogens
(paras. 52-55). Likewise, in my Concurring Opinion to the Judgment of the IACHR in
the case of Baldeón García versus Peru (merits and reparations, of 04.06.2006), upon
recalling its precedents regarding the jurisprudential construction of the prohibition of
the jus cogens (cf. supra), I differed from the reasoning of the majority of the IACHR,
which considered that the state’s obligations of prevention, investigation, and
punishment of those responsible would be mere obligations “of means, not of results”.
Unlike the majority of the Court, in that Concurring Opinion I considered that
"In my opinion, the right to fair trial is also part of the realm of
the international jus cogens. (...)
(...)We are referring to compulsory laws; therefore, the State's
obligations to prevent, investigate and punish perpetrators are not
mere obligations ‘to act in a given manner, but not to achieve a given
result,’ as stated by the Court in paragraph 93 of this Judgment. I
dissent in this reasoning from the majority of the Court.
As I indicated in my Separate Opinion (para. 23) in the recent
Judgment of the Court of 03.29.2006, in the city of Brasilia, in the case
of Sawhoyamaxa Indigenous Community v. Paraguay:
.
Cf., in this sense, my Separate Opinions in the Judgments of the Court in the
cases of the Plan de Sánchez Massacre versus Guatemala (merits, of 04.29.2004),
paras. 22, 29-33, and 35 of the Opinion; and (reparations of 11.19.2004), paras. 4-7
and 20-27 of the Opinion; of the Gómez Paquiyauri Brothers versus Peru (of
07.08.2004), paras. 37-44 of the Opinion; of Tibi versus Ecuador (of 09.07.2004),
paras. 30-32 of the Opinion; of Caesar versus Trinidad and Tobago (of 03.11.2005),
paras. 85-92 of the Opinion; of Yatama versus Nicaragua (of 06.23.2005), paras. 6-9
of the Opinion; of Acosta Calderón versus Ecuador (of 06.14.2005), paras. 4 and 7 of
the Opinion; of the Ituango Massacres versus Colombia (of 07.01.2006), para. 47 of
the Opinion; of Baldeón García versus Peru (of 04.06.2006), paras. 9-10 of the
Opinion; of López Álvarez versus Honduras (of 02.01.2006), paras. 53-55 of the
Opinion; of Ximenes Lopes versus Brazil (of 07.04.2006), paras. 38-47 of the Opinion.
122
.
E.g. Article 75 of Protocol I (1977) to the 1949 Geneva Conventions on
international humanitarian law.
123