- 16case. The notion of continued situation, which constitutes normative progress in
international human rights law concerning protection against grave human rights
violations, was used here not to expand the protective jurisdiction to the origin of such
violations but, the reverse, to remove the respondent State from this jurisdiction until
the present, thus depriving the Court – by acceding to this merely formalistic
interpretation – of exercising its treaty-based obligation to protect.
56.
The notion of continued situation, which supports a procedural advance in
international human rights law by contributing to the effectiveness of the right of
international individual petition, was degraded in this case, because it was used to
render this right of petition illusory. Consequently, in this case it was precisely the
fundamental clauses (cláusulas pétreas) – as I have always called them within this
Court44 – that were removed from the international protection of the American
Convention; namely, those relating to the right to individual international petition and
to the acceptance of the Court’s jurisdiction on contentious matters. In international
human rights law, the notion of continued situation was conceived to protect individual
victims and not the respondent State, as had surrealistically occurred in this case.
57.
It was precisely to avoid difficulties such as the one that arose in this case, and
that could arise again in future cases that, in the draft protocol to the American
Convention on Human Rights, to strengthen its protection mechanism (2001) – which I
prepared after having been appointed to do so by my colleagues, the judges of the
Court – I proposed an amendment to Article 62 of the American Convention in order to
make the jurisdiction of the Inter-American Court automatically compulsory (for all the
States Parties to the Convention and without any interpretative declarations or
restrictions), among several other matters.45 I recalled this proposal in my separate
opinions (para. 39) in Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago
(judgments on preliminary objections of September 1, 2001), and I repeat it with even
greater emphasis in this dissenting opinion.
58.
My position on this matter is firmly anti-“realist.” When I presented this draft
protocol in my successive reports to the to the General Assembly, Permanent Council,
and Committee on Juridical and Political Affairs of the Organization of American States
(OAS) in 2001, 2002 and 2003, I remember that no formal objection was made to it;
nevertheless, nothing has been done in this regard to date. Perhaps my proposals were
also dispersed by the winds of the implacable and cruel passage of time. Fortunately,
at the time my reports to the OAS were always very well received by the delegations of
the Member States. Nevertheless, at times I detected a look of surprise from a few
delegates (as if they had just heard a proposal from a visitor from outer space),
although they were always very attentive and polite to me.
59.
These few ill-dissimulated looks of surprise caused me a mixture of dismay and
sorrow. Indeed, it is difficult to escape the impression that, throughout the history of
law, it has been the “realists,” in the same way as the positivists, who have least
44
A.A. Cançado Trindade, "Las Cláusulas Pétreas de la Protección Internacional del Ser Humano: El
Acceso Directo a la Justicia Internacional y la Intangibilidad de la Jurisdicción Obligatoria de los Tribunales
Internacionales de Derechos Humanos", in El Sistema Interamericano de Protección de los Derechos Humanos
en el Umbral del Siglo XXI - Memoria del Seminario (Noviembre de 1999), vol. I, 2a. ed., San José, Costa
Rica, Inter-American Court of Human Rights, 2003, pp. 3-68.
45
Cf. A.A. Cançado Trindade, Informe: Bases para un Proyecto de Protocolo a la Convención Americana
de Derechos Humanos, para Fortalecer Su Mecanismo de Protección, tome II, 2a. ed., San José, Costa Rica,
Inter-American Court of Human Rights, 2003, pp. 1-64.
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