jurisprudential step forward I issued an extensive Concurring Opinion (paras. 1-89), in
which I supported the Court’s position, acknowledging that this basic principle permeates
the entire legal system, and requesting attention to its importance and that of all the
general principles of law, from which the rules and regulations arise, and without which,
in the end, there is no “legal system " (paras. 44-46 and 65).132
149. Since then, I went on to insist, within the Court, in successive contentious cases,
on the need to expand even more the material content of the jus cogens, so that it could
also include the right to access justice,133 and tend to the urgent needs of protection of
situations, in detriment of migrants, and having to guarantee the due process of law to
any person, regardless of their migratory status. The States cannot subordinate or
condition the observance of the principle of equality before the law and nondiscrimination to the objectives of immigration policies, among others.
.
In syntheses, said principles make up, in my understanding, the substratum of the
legal system itself (paras. 52-58). The matters covered by me – including the evolution of
the jus cogens and of the obligations erga omnes of protection, - was done within the
realm of the definition of the civitas maxima gentium and of the universality of human
gender. In a stretch of my mentioned Concurring Opinion, I allowed myself to consider
that
"Every legal system has fundamental principles, which inspire, inform and
conform their norms. It is the principles (derived ethmologically from the Latin
principium) that, evoking the first causes, sources or origins of the norms and
rules, confer cohesion, coherence and legitimacy upon the legal norms and the
legal system as a whole. It is the general principles of law (prima principia) which
confer to the legal order (both national and international) its ineluctable
axiological dimension; it is they that reveal the values which inspire the whole
legal order and which, ultimately, provide its foundations themselves. This is how
I conceive the presence and the position of the principles in any legal order, and
their role in the conceptual universe of Law.
From the prima principia the norms and rules emanate, which in them find
their meaning. The principles are thus present in the origins of Law itself. The
principles show us the legitimate ends to seek: the common good (of all human
beings, and not of an abstract collectivity), the realization of justice (at both
national and international levels), the necessary primacy of law over force,
the preservation of peace. Contrary to those who attempt - in my view in vain minimize them, I understand that, if there are no principles, nor is there truly a
legal system. Without the principles, the "legal order" simply is not accomplished,
and ceases to exist as such. (...)." (paras. 44 and 46)
132
.
Cf., in this sense, my Separate Opinions in the Judgments of the Court in the
cases of the Plan de Sánchez Massacre versus Guatemala (merits, of 04.29.2004), paras.
22, 29-33, and 35 of the Opinion; and (reparations of 11.19.2004), paras. 4-7 and 20-27
of the Opinion; of the Gómez Paquiyauri Brothers versus Peru (of 07.08.2004), paras. 3744 of the Opinion; of Tibi versus Ecuador (of 09.07.2004), paras. 30-32 of the Opinion; of
Caesar versus Trinidad and Tobago (of 03.11.2005), paras. 85-92 of the Opinion; of
Yatama versus Nicaragua (of 06.23.2005), paras. 6-9 of the Opinion; of Acosta Calderón
versus Ecuador (of 06.14.2005), paras. 4 and 7 of the Opinion; of the Ituango Massacres
versus Colombia (of 07.01.2006), para. 47 of the Opinion; of Baldeón García versus Peru
(of 04.06.2006), paras. 9-10 of the Opinion; of López Álvarez versus Honduras (of
02.01.2006), paras. 53-55 of the Opinion; of Ximenes Lopes versus Brazil (of
07.04.2006), paras. 38-47 of the Opinion.
133
45