8
their object and purpose and, accordingly, in establishing limits to State voluntarism.
From all this, one can detect a new vision of the relations between public power and the
human being, which is summed up, ultimately, in the recognition that the State exists for
the human being, and not vice-versa." 12
IV.
Compulsory international jurisdiction: new reflections de lege
ferenda.
30.
Despite the unfortunate decision of the Inter-American Court, in the second
operative paragraph of this judgment on preliminary objections in the Serrano Cruz
Sisters v. El Salvador, it should be recalled that, in its abovementioned judgments on
preliminary objections in the Hilaire, Benjamin, and Constantine cases, and also in its
previous judgments on competence in the Constitutional Court and Ivcher Bronstein
cases, the Court safeguarded the integrity of the provisions of Article 62 of the
American Convention on Human Rights, and thus made a valuable contribution to
strengthening the international jurisdiction and achieving the ancient ideal of
international justice.
31.
On the positive side, it should be noted that, despite all the difficulties, this
ideal has been revitalized and has gained ground nowadays, with the encouraging
significant expansion of the international judicial function, reflected by the creation of
new international tribunals. For some time, I have been insisting that the time has
come to finally overcome the regrettable lack of automatism of the international
jurisdiction and, in particular, of the inter-American system for the protection of
human rights.
32.
Owing to the distortions resulting from their practice in this area, the States
are now faced with a dilemma that should have been overcome long ago: or they
continue adhering to the anachronic voluntarist conception of international law,
abandoning the prospect of the primacy of law over political interests, or they return
to and achieve determinedly the ideal of constructing a more cohesive and
institutionalized international community in light of the primacy of law and the
search for justice, moving resolutely from jus dispositivum to jus cogens, 13
convinced that, ultimately, the international juridical system is a necessary rather
than a voluntary system.
33.
I will now repeat what I stated in my concurring opinion in the judgment on
preliminary objections of September 1, 2001, of the Inter-American Court in the
Hilaire case (and also in the Benjamin and Constantine cases):
"The time has come to consider, in particular, in a future protocol of amendments to the
procedural part of the American Convention on Human Rights, aiming at strengthening its
mechanisms of protection, the possibility of an amendment to Article 62 of the American
Convention, in order to render this clause also mandatory, in conformity with its character
of fundamental clause (cláusula pétrea), thus establishing the automatism of the
12
.
IACtHR, Blake v. Guatemala (Reparations), Judgment of January 22, 1999, Series C, No. 48,
Separate opinion of Judge A.A. Cançado Trindade, paras. 32-34.
13
.
And always bearing mind that the protection of fundamental rights places us firmly in the domain of
jus cogens. In this regard, when intervening in the discussions of March 12, 1986, of the Vienna Conference
on the Law of Treaties between States and International Organizations or between International
Organizations, I referred to the evident incompatibility between the concept of jus cogens and the voluntarist
conception of international law, which is not even able to explain the establishment of rules of general
international law; cf. UN, United Nations Conference on the Law of Treaties between States and International
Organizations or between International Organizations (Vienna, 1986) - Official Records, volume I, N.Y., U.N.,
1995, pp. 187-188 (intervention by A.A. Cançado Trindade).