6
21.
As I observed in my said separate opinion in that case, this judgment avoided
and overcame an undue fragmentation and distortion of a complex, grave and
continuing crime (the forced disappearance of persons), taking into account that,
nowadays, the concept of a continuing situation has widespread support in
international case law (paras. 10 to 19). Hence, the Court emphasized that the
superior values that underlie the norms of protection shared by the international
community as a whole, have primacy over the sword of Damocles of the dates on
which State acceptance is manifested (para. 20, and cf. paras. 21 and 22).
22.
Conversely and ironically, in the second operative paragraph of this judgment
in the Serrano Cruz Sisters v. El Salvador, what has been transformed into a
“continuing situation” by a decision of the majority of the members of the Court, is
not the situation allegedly violating human rights that was submitted to the Court’s
consideration and decision, but rather the continuing situation imposed by the State
on the Court that prevents it from exercising its jurisdiction; namely, to examine and
rule on the matter – which, in my opinion, is almost a juridical absurdity. It is well
known that the history of juridical thought, and even human thought in general, does
not make linear progress, but I sincerely hope that, in a temporal dimension, the
second operative paragraph of this judgment of the Court is only a stumbling block
that has to be overcome, a mishap on the long road that has to be traveled.
23.
In keeping with the Court’s recent case law, its judgment in the Trujillo Oroza
case (supra), its abovementioned judgments on competence in the Constitutional
Court and Ivcher Bronstein cases, and on preliminary objections in the Hilaire,
Benjamin and Constantine cases, are also notable international advances in
international case law in general and its legal grounds. The last two cases are today
part of the history of human rights in Latin America, with widespread positive
repercussions on other continents; moreover, they have created expectations of
continued progress in the Court’s case law in the same direction. 10
24.
In contrast to these advances, this judgment of the Court on preliminary
objections in the Serrano Cruz Sisters v. El Salvador is, data venia, particularly with
regard to the second operative paragraph, and the corresponding considering
paragraphs Nos. 66 to 79; a regrettable step backwards. Consequently, I dissent
firmly from what I deem to be an unacceptable capitulation to State voluntarism
which is no longer sustainable today, and which also militates against the actual
process of jurisdictionalization of international law itself, revealed by recent advances
in the ancient ideal of the realization of justice at the international level also (cf.
infra).
25.
The terms of the defendant State’s recognition of the jurisdiction of the InterAmerican Court on contentious matters are also inadmissible and invalid as regards
another specific aspect; namely, when the State reserves the faculty to terminate
the recognition of this jurisdiction “when it considers this opportune.” This caveat
conflicts with the ruling of the Court in the abovementioned judgments on
competence in the Constitutional Court and Ivcher Bronstein cases.
26.
In another line of thought still relating to this case, the only limitation filed by
the defendant State referred to in the first operative paragraph of this judgment –
regarding which little or nothing could be done, owing to the degree of stagnation of
10
.
Cf., for example, A. Salado Osuna, Los Casos Peruanos ante la Corte Interamericana de Derechos
Humanos, Lima, Edit. Normas Legales, 2004, pp. 94-131.