human beings. I did it, inter alia, in my Concurring Opinion (dedicated to the right to
access justice lato sensu) to the Judgment of the Court (of 01.31.2006) in the case of the
Pueblo Bello Massacre versus Colombia, in which I considered inter alia that
The indivisibility between Articles 25 and 8 of the American
Convention that I maintain (…) leads me to characterize access to
justice, understood as the full realization of justice, as forming part of
the sphere of jus cogens; in other words, that the inviolability of all the
judicial rights established in Articles 25 and 8 considered together
belongs to the sphere of jus cogens. There can be no doubt that the
fundamental guarantees, common to international human rights law and
international humanitarian law,134 have a universal vocation because
they are applicable in any circumstance, constitute a peremptory right
(belonging to jus cogens), and entail obligations erga omnes of
protection." (para. 64)
150. Little afterwards, in my Concurring Opinion in the case of López Álvarez versus
Honduras (2006) I allowed myself to insist on my understanding in the sense that the
right to Law (the access to justice lato sensu) is an imperative of the jus cogens (paras.
52-55). Likewise, in my Concurring Opinion to the Judgment of the IACHR in the case of
Baldeón García versus Peru (merits and reparations, of 04.06.2006), upon recalling its
precedents regarding the jurisprudential construction of the prohibition of the jus cogens
(cf. supra), I differed from the reasoning of the majority of the IACHR, which considered
that the state’s obligations of prevention, investigation, and punishment of those
responsible would be mere obligations “of means, not of results”. Unlike the majority of
the Court, in that Concurring Opinion I considered that
"In my opinion, the right to fair trial is also part of the realm of the
international jus cogens. (...)
(...)We are referring to compulsory laws; therefore, the State's
obligations to prevent, investigate and punish perpetrators are not mere
obligations ‘to act in a given manner, but not to achieve a given result,’ as
stated by the Court in paragraph 93 of this Judgment. I dissent in this
reasoning from the majority of the Court.
As I indicated in my Separate Opinion (para. 23) in the recent
Judgment of the Court of 03.29.2006, in the city of Brasilia, in the case of
Sawhoyamaxa Indigenous Community v. Paraguay:
`(...) The State’s obligations require it to act diligently and
to achieve a given result, not merely to act in a given manner (such
as adopting insufficient and ineffective legislative measures).
Indeed, the examination of the difference between obligations to
act in a given manner and to achieve a given result135 has, in
general, been carried out under a theoretical approach, assuming
variations in the conduct of the State and even a succession of acts
.
E.g. Article 75 of Protocol I (1977) to the 1949 Geneva Conventions on
international humanitarian law.
134
.
Especially based on the work of the United Nations Human Rights Commission on
the International Responsibility of States.
135
46