24
pertaining to Colombia (Judgment on reparations, of 29.01.1997), - which I do not
find it necessary to reiterate literally herein.
86.
Secondly, and most importantly, in the present Judgment in the Caesar case,
the Court has rightly acknowledged that the prohibition of torture as well as of other
cruel, inhuman and degrading treatment, has entered into the domain of jus cogens.
Corporal punishment, such as the one examined in the cas d'espèce, is per se in
breach of the Convention (Article 5(1) and (2)) and of peremptory norms of
international law (paragraphs 70, 88 and 100). In several of my Individual Opinions
presented in this Court, I have drawn attention to the relevance of the expanding
material content and scope of jus cogens. The present Judgment is inserted into this
reassuringly evolutive jurisprudential construction.
87.
Thus, in its historical Advisory Opinion n. 18 on The Juridical Condition and the
Rights of the Undocumented Migrants (of 17.09.2003), the Inter-American Court
significantly held that the aforementioned fundamental principle of equality and nondiscrimination, in the present stage of evolution of International Law, "has entered
into the domain of the jus cogens"; on such principle, which "permeates every legal
order", - the Court correctly added, - "rests the whole juridical structure of the
national and international public order" 89. The Court, moreover, referred to the
evolution of the concept of jus cogens, transcending the ambit of both the law of
treaties and of the law of the international responsibility of the State, so as to reach
general international law and the very foundations of the international legal order 90.
88.
In support of this view, in my Concurring Opinion in that pronouncement of the
Court (Advisory Opinion n. 18), after summarizing the history of the entry of jus
cogens into the conceptual universe of international law, I maintained that
"The emergence and assertion of jus cogens in contemporary
International Law fulfil the necessity of a minimum of verticalization in
the international legal order, erected upon pillars in which the juridical
and the ethical are merged. (...)
On my part, I have always sustained that it is an ineluctable
consequence of the affirmation and the very existence of peremptory
norms of International Law their not being limited to the conventional
norms, to the law of treaties, and their being extended to every and
any juridical act91. Recent developments point out in the same sense,
that is, that the domain of the jus cogens, beyond the law of treaties,
encompasses likewise general international law 92. Moreover, the jus
cogens, in my understanding, is an open category, which expands
itself to the extent that the universal juridical conscience (material
source of all Law) awakens for the necessity to protect the rights
inherent to each human being in every and any situation".
To the international objective responsibility of the States
corresponds necessarily the notion of objective illegality (one of the
elements underlying the concept of jus cogens). In our days, no one
89
. Paragraph 101, and cf. resolutory points ns. 2 and 4 of Advisory Opinion n. 18.
90
. Paragraphs 98-99 of Advisory Opinion n. 18.
91
. Cf. A.A. Cançado Trindade, Tratado de Direito Internacional..., op. cit. supra n. (97), vol. II, pp. 415-416.
92
. For the extension of jus cogens to all possible juridical acts, cf., e.g., E. Suy, «The Concept of Jus Cogens
in Public International Law», in Papers and Proceedings of the Conference on International Law (Langonissi,
Greece, 03-08.04.1966), Geneva, C.E.I.P., 1967, pp. 17-77.
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