13
is a point to which I attribute the greatest importance, as it implies the need,
ultimately, of a true change of mentality, in the high courts of almost all countries of
Latin America.
36.
This would hardly be achieved with attention to the merely formal aspect of
legislative reforms, which ought to be accompanied by the permanent in-training in
human rights of national judges in Latin America, particularly the promising new
generations of judges. The sentences of the national tribunals ought to take in due
account the applicable norms both of domestic law as well as of human rights treaties
which bind the State Party. These latter, in setting forth and clearly defining an
individual right, susceptible of vindication before a national tribunal or judge, are
directly applicable at domestic law level.
37.
If greater advances have not been achieved to date in the present domain of
protection, this is not due to legal obstacles, - which in reality do not exist, - but rather
to the lack of will (animus) of public power to promote and secure a more effective
protection of human rights. This applies today to almost all Latin American countries, and, I understand, also to Caribbean countries39, - singling out the pressing need for a
change of mentality, to which I have already referred. A new mentality will emerge,
with regard to the Judiciary, as from the understanding that the direct application of
the international norms of human rights protection is beneficial to the inhabitants of all
countries, and that, instead of the adherence to juridico-formal constructions and
syllogisms and to a hermetic normativism, what is truly required is to proceed to the
correct interpretation of the applicable norms, whether of international or national
origin, so as to secure the full protection of the human being.
38.
In a visionary book published in 1944, the Chilean jurist Alejandro Álvarez
forcefully called for a reconstruction of the law of nations (derecho de gentes) and a
renewal of the social order itself40. We live today, at the beginning of the XXIst century,
in a world entirely distinct from that of half a century ago, but the theme which in his
days inspired A. Álvarez - and which nowadays would be developed in a distinct way, in
the light of the evolution itself of the law of nations (derecho de gentes) in the last five
decades, - is effectively a recurrent theme, which keeps on retaining in our days a
great up-to-date relevance.
39.
I cannot see how not to sustain and foster, again, at the dawn of a new century,
a reconstruction and renewal of the law of nations (derecho de gentes), as from, in my
view, a necessarily anthropocentric outlook, and with emphasis on the identity of the
ultimate objective both of international law and of public domestic law as to the
safeguard of the rights of the human being. This being so, the international norms of
protection, incorporated to domestic law, cannot fail to be directly applied by the
national tribunals in all the countries of Latin America and the Caribbean, which have
given the good example of professing their commitment to human rights by means of
the ratification of the American Convention, or the accession to it.
40.
The case of "The Last Temptation of Christ", which the Inter-American Court
has just decided in the present Judgment on the merits, is truly emblematic, not only
38
.
39
Cf. IACtHR, Transcripción de los Alegatos Finales..., op. cit. supra n. (28), pp. 15-16.
.
I regret not to be able to refer to the countries of North America (Canada and the United States),
which so far have not even ratified the American Convention on Human Rights.
40
.
Cf. Alejandro Álvarez, La Reconstrucción del Derecho de Gentes - El Nuevo Orden y la Renovación
Social, Santiago of Chile, Ed. Nascimento, 1944, pp. 3-523.