12
34.
I could not conclude this Separate Opinion in the present case of Hilaire versus
Trinidad and Tobago without a last line of reflections, de lege ferenda, on the
international compulsory jurisdiction. The "judicial decisions", referred to in the
enumeration of the formal sources and evidences of International Law, set forth in
Article 38(1)(d) of the Statute of the ICJ 37, certainly are not limited to the case-law of
the ICJ itself 38. They likewise comprise, nowadays, the judicial decisions of the
international tribunals (Inter-American and European Courts) of human rights, of the
ad hoc International Criminal Tribunals (for ex-Yugoslavia and for Rwanda), of the
International Tribunal for the Law of the Sea, of other international and arbitral
tribunals, as well as of national tribunals in matters of international law 39. Throughout
the last years the old ideal of international justice has been revitalized and has gained
ground, with the considerable expansion of the international judicial function, reflected
in the creation of new international tribunals; the work of these latter has been
enriching contemporary international case-law, contributing to assert the aptitude of
International Law to regulate adequately the juridical relations in distinct domains of
human activity.
35.
In this sense, in my aforementioned Separate Opinion in the case of Blake
versus Guatemala, in warning as to the necessity to establish the juridical bases of a
minimally institutionalized international community, I pointed out that
"(...) With the evolution of the International Law of Human Rights, it is Public
International Law itself which is justified and legitimized, in affirming juridical principles,
concepts and categories proper to the present domain of protection, based on premises
fundamentally distinct from those which have guided the application of its postulates at the
level of purely inter-State relations.
(...) The norms of the law of treaties (...) can greatly enrich with the impact of
the International Law of Human Rights, and develop their aptitude to regulate adequately
the legal relations at inter-State as well as intra-State levels, under the respective treaties
of protection. (...)" 40.
36.
The Inter-American Court of Human Rights, by means of the Judgments on
Preliminary Objections which it has just adopted in the cases of Hilaire, Benjamin, and
Constantine, as well as its earlier Judgments on Competence in the cases of the
Constitutional Tribunal and Ivcher Bronstein, has safeguarded the integrity of the
American Convention on Human Rights, has been master of its own jurisdiction and
has acted in accordance with the high responsibilities accorded to it by the American
Convention. The same can be said of the European Court of Human Rights, by means
of its Judgment on Preliminary Objections in the case Loizidou versus Turkey, in so far
as the European Convention on Human Rights is concerned. Thus, the two existing
37
.
As "subsidiary means for the determination of rules of law".
38
.
As this latter itself has acknowledged, e.g., in its Judgment of 18.11.1960 in the case of the Arbitral
Award of the King of Spain of 1906 (Honduras versus Nicaragua), ICJ Reports (1960) pp. 204-217.
39
.
I. Brownlie, Principles of Public International Law, 4th. ed., Oxford, Clarendon Press, 1990, pp. 1924; A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, Brasília, Editora Universidade
de Brasília, 1981, pp. 19-20; R.A. Falk, The Role of Domestic Courts in the International Legal Order,
Syracuse University Press, 1964, pp. 21-52 and 170; J.A. Barberis, "Les arrêts des tribunaux nationaux et la
formation du droit international coutumier", 46 Revue de droit international de sciences diplomatiques et
politiques (1968) pp. 247-253; F. Morgenstern, "Judicial Practice and the Supremacy of International Law",
27 British Year Book of International Law (1950) p. 90.
40
.
IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999, Series C, n. 48,
Separate Opinion of Judge A.A. Cançado Trindade, pp. 110 and 112, pars. 23 and 27-28.