-22-
64.
The indivisibility between Articles 25 and 8 of the American Convention that I
maintain (supra) 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,53 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.54
65.
Following its historic Advisory Opinion OC-18/03 on the Juridical Status and
Rights of Undocumented Migrants, the Court could and should have given this other
qualitative step forward in its case law. I dare hope that it will do so as soon as
possible, if it truly continues with its forward-thinking case law – instead of trying to
halt it – and extends the advance courageously achieved in this Advisory Opinion
with the continuing expansion of the material content of jus cogens.
Antônio Augusto Cançado Trindade
Judge
Pablo Saavedra-Alessandri
Secretary
53
.
law.
E.g. Article 75 of Protocol I (1977) to the 1949 Geneva Conventions on international humanitarian
54
.
Cf., likewise, see, e.g., M. El Kouhene, Les garanties fondamentales de la personne en Droit
humanitaire et droits de l'homme, Dordrecht, Nijhoff, 1986, pp. 97, 145, 148, 161 and 241.
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