- 1969.
The passage of time has also challenged legal science, as I have indicated in
several of my opinions in this Court, and in my books.50 The complexity of the
relationship between the time factor and law has been illustrated by the difficulties
encountered by the Court to decide this case of the Serrano Cruz sisters. I suspect that
despite all its efforts over the past century (for example, clarifying the principle of intertemporal law51), legal science has not learned to come to terms with the passage of
time either.
70.
As I stated in my separate opinion in Blake v. Guatemala (merits, 1998),
"The time of human beings certainly is not the time of the stars, in more that one sense.
The time of the stars, [...] besides being an unfathomable mystery which has always
accompanied human existence from the beginning until its end, is indifferent to legal
solutions devised by the human mind; and the time of human beings, applied to their
legal solutions as an element which integrates them, not seldom leads to situations
which defy their own legal logic - as illustrated by the present Blake case. One specific
aspect, however, appears to suggest a sole point of contact, or common denominator,
between them: the time of the stars is inexorable; the time of human beings, albeit only
conventional, is, like that of the stars, implacable - as also demonstrated by the present
Blake case" (para. 6).
71.
Eight years later, the result of this case of the Serrano Cruz sisters has also
demonstrated this, perhaps even more eloquently (or even alarmingly), because the
judgment on merits delivered by the Court in the case, with which I disagree,
challenges even more strongly its own juridical logic. We are still in the first stages of
developing the treatment that legal science should accord to the difficult relationship
between the time factor and law.
72.
The temporal dimension is present also in the part of this judgment concerning
non-pecuniary reparations, with which I agree. Operative paragraph 10, for example,
illustrates this clearly, when it determines correctly that the respondent State must
designate a day dedicated to the children who, for different reasons, disappeared
during the Salvadoran armed conflict. There is no oblivion; time imbues the history of
each and every one of us with memory. I will repeat what I stated in this regard in my
separate opinion in the case of the Plan de Sánchez Massacre v. Guatemala (judgment
on merits of April 29, 2004):
50
Cf., regarding the time factor and law, A.A. Cançado Trindade, O Direito Internacional em um Mundo
em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 3-6; A.A. Cançado Trindade, Tratado de Direito
Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brasil, S.A. Fabris Ed., 1999, pp. 336-338.
51
A matter that was examined by the Institut de Droit International at its sessions in Rome (1973) and
Wiesbaden (1975); cf. 55 Annuaire de l'Institut de Droit International (1973) pp. 33, 27, 37, 48, 50, 86, 108
and 114-115; 56 Annuaire de l'Institut de Droit International (1975) p. 536-541; and cf. M. Sorensen, "Le
problème dit du droit intertemporel dans l'ordre international – Rapport provisoire", 55 Annuaire de l'Institut
de Droit International (1973) pp. 35-36. With regard to the influence of the passage of time in the continuity
of the rules of international law, cf. K. Doehring, "Die Wirkung des Zeitablaufs auf den Bestand
völkerrechtlicher Regeln", Jahrbuch 1964 der Max-Planck-Gesellschaft, Heidelberg, 1964, pp. 70-89. With
regard to the time factor and treaties, cf. G.E. do Nascimento e Silva, "Le facteur temps et les traités", 154
Recueil des Cours de l’Académie de Droit International de La Haye (1977) p. 221-295. With regard to the time
factor and international litigation, cf. S. Rosenne, The Time Factor in the Jurisdiction of the International Court
of Justice, Leyden, Sijthoff, 1960, pp. 11-75; A.A. Cançado Trindade, "The Time Factor in the Application of
the Rule of Exhaustion of Local Remedies in International Law", 61 Rivista di Diritto Internazionale (1978) pp.
232-257. and cf., in general, e.g, E. McWhinney, "The Time Dimension in International Law, Historical
Relativism and Intertemporal Law", in Essays in International Law in Honour of Judge M. Lachs (ed. J.
Makarczyk), The Hague, Nijhoff, 1984, pp. 184-199; M. Chemillier-Gendreau, "Le rôle du temps dans la
formation du droit international", in Droit international - III (ed. P. Weil), Paris, Pédone, 1987, pp. 25-28.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos