35.
In the present Judgment of Interpretation in the case of the Castro Castro Prison,
the Court clarified the consultation made to it with regard to the determination of victims
and the right to measures of reparation (paras. 62-70), but it did not do the same,
satisfactorily, as obiter dicta, with regard to the central matter of the State’s request for
interpretation. A public hearing was not held, and with this it has lost an opportunity to
deal in detail with the referred matter presented to it, which today occupies a central
position in the contemporary international agenda of human rights.
36.
In my opinion, Article 67 of the American Convention perfectly empowers the
Court to clarify the matters presented to it by all the procedural or intervening parties
(the appellant State, the legal representative and common intervener of the victims, the
attorneys of the “Canto Grande 92 Group” of victims, the Inter-American Commission of
Human Rights, as well as the IDL and the CNDH). Articles 29(3) and 59 of the Rules of
Procedure may also be considered the grounds for said clarification. Besides, Article 58 of
the Rules of Procedure determines that the Court will decide upon the requests for
interpretation through a judgment, which will include the legal substantiation (Article
55(1)(f) of the Rules of Procedure). The Convention also states that the Judgments of the
Court must be substantiated. Likewise, Article 44 of the Rules of Procedures empowers
the Court "in any state of the case,” to require “any measure of investigation" (evidence,
report, expert opinion, information, opinion, or any other).
more than two centuries before it became an independent State, celebrated peace
treaties with the Dutch colonial authorities (the N'djukas in 1760), later renovated, thus
obtaining their freedom from slavery (paras. 83(1) and (2)). In my Concurring Opinion in
said case of the Moiwana Community, I considered that "the Maroons, - the N'djuka in
particular, - regard these treaties as still valid and authoritatives in the relations with the
successor State, Suriname. This means that those peoples exercised their attributes of
legal persons in international law, well before the territory where they lived acquired
statehood. This reinforces the thesis which I have always supported, namely, that the
State are not, and have never been, the sole and exclusive subjects of international law"
(para. 6). And I added: "Human beings, individually and collectively, have emerged as
subjects of international law. The rights protected disclose an individual and a collective
or social dimensions, but it is the human beings, members of such minorities or
collectivities, who are, ultimately, the titulaires of those rights" (para. 10). As holders of
rights, they can present their own arguments before a tribunal such as the InterAmerican Court with full freedom of expression (para. 12). – Actually, in a more distant
past, treaties were celebrated between people and human societies with a minimum level
of organization, much before the emergency of the Westphalian inter-state order in the
XVII century, which proves that, both international juridical capacity, and the capacity to
celebrate treaties (treaty-making power), were never an exclusive monopoly of the
States. For examples (of treaties celebrated by human communities, from ancient times
up to the Westphalia Peace of 1648), cf., v.g., A. Truyol and Serra, Histoire du Droit
international public, Paris, Economica, 1995, pp. 5-7 and 13-14; P. Guggenheim, Traité
de Droit international public, 2a. ed. rev., volume I, Genève, Georg & Cie., 1967, pp.
114-115; R. Ago, "Les premières collectivités interétatiques méditerranéennes", in
Mélanges offerts à P. Reuter - Le Droit international: unité et diversité, Paris, Pedone,
1981, pp. 22-23 and 29-30. – This is additional historical information in defense of my
position, held throughout the years in this Court (cf., inter alia, my Concurring Opinion in
OC-16), of the humanization of International Law; cf., more recently, A.A. Cançado
Trindade, A Humanização do Direito Internacional, Belo Horizonte/Brasil, Edit. Del Rey,
2006, pp. 3-409.
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