Judgment of 01.24.1998;123 and reparations, Judgment of 01.22.1999124). In an initial
stage of notable jurisprudencial evolution (in contentious cases), the Court stated the
absolute prohibition, of the jus cogens, of torture, in any and all circumstances, followed
by the same prohibition of cruel, inhuman, or degrading treatments (Judgments of
08.18.2000, in the case of Cantoral Benavides versus Peru, para. 99; of 07.08.2004, in
the case of the Gómez Paquiyauri Brothers versus Peru, paras. 111-112; of 09.07.2004 in
the case of Tibi versus Ecuador, para. 143; among others125).
147. In the same line of thought, I reiterated my position in this regard in my
Concurring Opinion to the Judgment (of 03.14.2001) in the case of Barrios Altos versus
Peru,126 as well as in my Separate Opinion to the Judgment (09.01.2001) in the case of
Hilaire versus Trinidad and Tobago;127 in my Concurring Opinion to the Judgment (of
11.27.2003) in the case of Maritza Urrutia versus Guatemala;128 in my Separate Opinion
to the Judgment (of 07.08.2004) in the case of the Gómez Paquiyauri Brothers versus
Peru (of 07.08.2004);129 and in my Dissenting Opinion in the case of the Serrano Cruz
Sisters versus El Salvador (Judgment on preliminary objections of 11.23.2004).130
148. In a new stage of its jurisprudential construction in this regard, the Court went
even further, by expanding the material content of the jus cogens in its historical
Advisory Opinion n. 18 (of 09.17.2003), on the Juridical Condition and Rights of the
Undocumented Migrants, thus including the basic principle of equality and nondiscrimination (paras. 97-101 and 110-111).131 Regarding this other great parallel
.
Paras. 15, 17, 23, 25, and 28 of the Opinion.
.
Paras. 31, 40, and 45 of the Opinion.
123
124
.
The IACDH reiterated its position in its Judgment of 04.06.2006 in the case of
Baldeón García versus Peru (para. 121). A year before that, the Judgment (of
03.11.2005) in the case of Caesar versus Trinidad and Tobago, in the same line of
reasoning of its jurisprudential construction of the jus cogens, correctly took another step
forward, when it stated the absolute prohibition, characteristic of the sphere of the jus
cogens, of torture as well as of other cruel, inhuman, and degrading treatments. The
absolute prohibition of both torture and said treatments, in any and all circumstances, as
a prohibition of the jus cogens, is today jurisprudence constante of the Court.
125
.
Paras. 10-11 and 25 of the Opinion.
.
Para. 38 of the Opinion.
.
Paras. 6, 8-9, and 12 of the Opinion.
126
127
128
.
129
.
130
Paras. 1, 37, 39, 42, and 44 of the Opinion.
Paras. 2, 32, and 39-41 of the Opinion.
.
The IACHR held that the States have the duty to respect and guarantee respect
for human rights in the light of the general and basic principle of equality and nondiscrimination, and that any discriminatory treatment with regard to the protection and
exercise of said rights (even labor ones) generates the States’ international responsibility.
In the Court’s understanding, the mentioned fundamental principle entered the sphere of
the jus cogens, thus not allowing the States to discriminate or tolerate discriminatory
131
44