4
insufficient evolution of the precepts of the law of treaties to fulfill the basic purpose of
effective protection of human rights), but rather on the nature of the alleged multiple and
interrelated violations of protected human rights, prolonged in time, with which the present
case of disappearance is concerned.
13. When, in relation to Article 62(2) of the American Convention on Human Rights, by
the application of the rigid postulates of the law of treaties one is led to a situation like the
present one, in which issues of the investigation of the detention and death of a person, and
of the punishment of the perpetrators, end up by being returned to the domestic
jurisdiction, serious questions subsist in the air, revealing a serious challenge for the future.
The entire evolution of the international law of human rights, over the past five decades, has
been constructed on the understanding or premise that the protection of human rights, as
rights inherent in the human being, is not exhausted -cannot be exhausted- in the action of
the State.
14. It calls to attention that, in the circumstances of the present case, one has had to
resign oneself to the renvoi or abandonment to the national jurisdiction of the issues of the
investigation of the detention and death of a person, and the punishment of those
responsible for them, after resorting to the international jurisdiction precisely in view of the
shortcomings or insufficiencies of national jurisdiction to this effect. The great challenge
appearing on the horizon consists, in my view, in continuing to advance resolutely towards
the gradual humanization of the law of treaties (a process already initiated with the
emergence of the concept of jus cogens2 ), as this chapter of international law persists still
strongly impregnated with State voluntarism and an undue weight attributed to the forms
and manifestations of consent.
15. It only remains for me to express the hope that, perhaps with the gradual
development of the conceptualization, and a solid jurisprudential construction, of the crime
of forced disappearance of persons -only recently defined in the international law of human
rights,- in the foreseeable future it will no longer be possible to compartmentalize or
introduce artificial separations among its multiple components. The day this degree of
evolution of the matter is attained, any preliminary objection that implies separating the
examination of the detention and death of a person from the consideration of alleged
additional and continued violations of related rights ought to be discarded as unfounded.
Antônio Augusto Cançado Trindade
Judge
2
Vienna Convention on the Law of Treaties (1969), Articles 53 and 64; Vienna Convention on the Law of
Treaties between States and International Organizations or between International Organizations (1986), Articles 53
and 64. Another illustration in this sense lies in the safeguard clause in defense of the human being contained in
Article 60(5) of the two Vienna Conventions (as to the termination of a treaty or the suspension of its application).