SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have concurred with my vote in the adoption of the present Judgment of the
Inter-American Court of Human Rights in the Caesar versus Trinidad and Tobago case.
Given the relevant legal issues dealt with by the Court in its decision, as well as those
underlying it and those surrounding the present case, I feel obliged to leave on the
records my personal reflections on them as foundations of my position on the matter. I
shall address, in the present Separate Opinion, the following points which I consider of
key importance, not only for a better understanding of the Court's decision in the
present Caesar case, but also for the handling of future cases in which such issues may
possibly also be raised: a) the humanization of the law of the treaties, as illustrated by
developments concerning interpretation of treaties, reservations to treaties,
denunciation of treaties, and termination and suspension of the operation of treaties; b)
international rule of law: non-appearance before an international tribunal and the duty
of compliance with its judgment; and c) the expanding material content and scope of
jus cogens in contemporary international law.
I.
The Humanization of the Law of Treaties.
2.
It is hardly surprising that basic considerations of humanity surround recently
emerged domains of international law, such as that of the international protection of
human rights. But the incidence of those considerations upon more traditional areas of
international law, which were in the past approached, almost invariably, from the angle
of the "will" of States, is indicative of the new times, and a new mentality centred
rather on the ultimate addressees of international norms, the human beings.
3.
The law of treaties affords a pertinent illustration, disclosing that it is no longer
entirely at the mercy of the "will" of States and that it, too, acknowledges certain
superior common values that the international community as a whole deems should be
preserved. Pertinent examples can be found in such areas of the law of treaties
pertaining to interpretation of treaties, reservations to treaties, denunciation of
treations, and termination and suspension of the operation of treaties. I shall review,
however succinctly, each of them, before presenting my concluding observations on the
matter.
1.
Considerations on the Interpretation of Treaties.
a)
General Remarks.
4.
When one comes to the interpretation of human rights treaties, as well as of
other international treaties, one is inclined to resort at first to the provisions enshrined
in Articles 31-33 of the two Vienna Conventions on the Law of Treaties (of 1969 and
1986, respectively), and in particular to the combination under Article 31 of the
elements of the ordinary meaning of the terms, the context, and the object and
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