Corte interamericana de derechos humanos


Considerations on the Denunciation of Treaties



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3. Considerations on the Denunciation of Treaties.
47. The two Vienna Conventions on the Law of Treaties (1969 and 1986) determine that a treaty which contains no provision on denunciation is not subject to denunciation, unless it can be established that the parties intended to admit the possibility of denunciation of that this latter "may be implied by the nature of the treaty" (Article 56(1)). The two Vienna Conventions thus open the way to the taking into account of the nature or specificity of certain treaties. As already seen, the special nature of treaties of a humanitarian character (such as human rights treaties) has indeed been taken into account, and has been widely acknowledged. Accordingly, certain limits have been established with regard to the denunciation of such treaties.
48. In fact, basic considerations of humanity have permeated also the clauses of denunciation of certain treaties. This is aptly illustrated, e.g., by the provisions on denunciation of the four Geneva Conventions on International Humanitarian Law of 1949. According to those provisions (common Article 63/62/142/158), the denunciation, which will take effect one year after its notification, shall not, however, while the denouncing power is engaged in a conflict, take any effect "until peace has been concluded", and until the "operations connected with the release and repatriation of the persons protected" by the Geneva Conventions "have been terminated". In this way, the obligations of the Parties as to the safeguard of the persons protected under those Conventions subsist, in whatever circumstances, vis-à-vis the denouncing power, while the conflict lasts and the release and repatriation of the persons protected are not concluded117.

49. Furthermore, the denunciation provisions of the aforementioned four Geneva Conventions (common Article 63/62/142/158) expressly preserves the obligations based on "the principles of the law of nations" as they result from "the laws of humanity" and "the dictates of the public conscience" (the Martens clause). Such obligations, as aptly remarked by B.V.A. Röling, continue governing human conduct even when treaties are no longer binding118, - contrary to, I would add, what positivists would mechanically argue. As I have sustained at length in my Concurring Opinion in this Court's Advisory Opinion n. 18 on the Juridical Condition and Rights of Undocumented Migrants (2003), the law of protection of the human being does not exhaust itself in the norms and rules of positive law, it encompasses likewise the principles (which inform and conform those norms and rules), without which there is no legal system at all.
50. Half a decade after the adoption of the 1969 Vienna Convention on the Law of Treaties, H.W. Briggs pertinently pointed out that the consideration of that Convention in international case-law
"has been helpful in furthering the consolidation of the law against unilateral denunciation of international agreements without accountability therefore"119.
The 1984 U.N. Convention against Torture, in this line of concern, provides (Article 31(2)) that a denunciation of it shall not have the effect of releasing the denouncing Party from its obligations under the Convention with regard to "any act or omission which occurs prior to the date at which the denunciation becomes effective", nor shall the denunciation prejudice in any way the "continued consideration" of any matter already under scrutiny by the U.N. Committee against Torture "prior to the date at which the denunciation becomes effective".
51. At regional level, the European Convention on Human Rights, as amended by Protocol n. 11, provides (Article 58) likewise that a denunciation of it shall not have the effect of releasing the denouncing Party from its obligations under the Convention in respect of "any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective". On its turn, in a similar line of thinking, the 1999 Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities determines (Article XIII) that a denunciation of it "shall not exempt" the State Party from the obligations imposed upon it under the Convention in respect of "any action or omission prior to the date on which the denunciation takes effect".
52. And the American Convention on Human Rights (Article 78) only admits denunciation "at the expiration of a five-year period from the date of its entry into force", and by means of "notice given one year in advance". Moreover, such a denunciation shall not have the effect of releasing the denouncing State Party from the obligations contained in the Convention with respect to "any act that may constitute a violation of those obligations" and that "has been taken by that State prior to the effective date of denunciation". The issue of the effects of denunciation, within such limits, became a central one in recent cases concerning Trinidad and Tobago under the American Convention on Human Rights.
53. Trinidad and Tobago became a Party to the American Convention on Human Rights on 28.05.1991, and accepted the Inter-American Court's jurisdiction in contentious matters on that same date. Later on, on 26.05.1998, it denounced the American Convention; pursuant to Article 78 of the Convention, such denunciation began to have effects one year later, on 26.05.1999. One day before this date the Inter-American Commission on Human Rights filed before the Court the Hilaire case; subsequently, after that date, it lodged with the Court the Constantine et allii case (on 22.02.2000) and the Benjamin et allii case (on 05.10.2000), - the three of them concerning Trinidad and Tobago.
54. As they pertained to acts taken by that State prior to the date of its denunciation, the Court retained jurisdiction and took cognizance of the cases (pursuant to Article 78(2) of the Convention), and rendered its Judgments on preliminary objections in the three cases on 01.09.2001, dismissing an undue restriction formulated by the State in its instrument of acceptance of the Court's compulsory jurisdiction (reiterated in the three cases in the form of a preliminary objection). That restriction would have limited the Court's jurisdiction to the extent that its exercise would be consistent with the national Constitution; the Court considered it incompatible with the object and purpose of the Convention, and an attempt to subordinate this latter to the national Constitution, what would be inadmissible120.
55. The Court then ordered the joinder of the three cases and their respective proceedings (on 30.11.2001), and delivered its Judgment on the merits, finding violations of the American Convention, on 21.06.2002. Parallel to that, also after the denunciation by Trinidad and Tobago became effective (on 26.05.1999), the Court ordered successive Provisional Measures of Protection, from 27.05.1999 to 02.12.2003, in the case James et allii versus Trinidad and Tobago (as they also pertained to acts taken by the State prior to the date of its denunciation of the Convention). All these decisions of the Court remain binding upon the respondent State; its denunciation of the Convention does not have the sweeping effect that one might prima facie tend to assume, as the denunciation clause under the American Convention (supra) was surrounded by temporal limitations so as not to allow it to undermine the protection of human rights thereunder.
56. Thus, not even the institution of denunciation of treaties is so absolute in effects as one might prima facie tend to assume. Despite its openness to manifestations of State voluntarism, denunciation has, notwithstanding, been permeated with basic considerations of humanity as well, insofar as treaties of a humanitarian character are concerned. Ultimately, one is here faced with the fundamental, overriding and inescapable principle of good faith (bona fides), and one ought to act accordingly.
4. Considerations on the Termination and Suspension of the Operation of Treaties.
57. The interpretation and application of human rights treaties bear witness of the twilight of reciprocity and of the prominence of considerations of ordre public in the present domain. In fact, the prohibition of the invocation of reciprocity as a subterfuge for non-compliance with humanitarian conventional obligations, is corroborated in unequivocal terms by the 1969 Vienna Convention on the Law of Treaties, which, in providing for the conditions in which a breach of treaty may bring about its termination or suspension of its operation, excepts expressly and specifically the "provisions relating to the protection of the human person contained in treaties of a humanitarian character" (Article 60(5)).
58. The provision of Article 60(5) of the two Vienna Conventions on the Law of Treaties (1969 and 1986), acknowledging the special nature of "treaties of a humanitarian character" and setting forth one of the juridical consequences ensuing therefrom, constitutes a safeguard clause in defence of the human person. In this sense I saw it fit to point out, in a study on the matter published 14 years ago, that
"the law of treaties itself of our days, as confirmed by Article 60(5) of the Vienna Convention [on the Law of Treaties], discards the precept of reciprocity in the implementation of the treaties of international protection of human rights and of International Humanitarian Law, by virtue precisely of the humanitarian character of those instruments. Piercing the veil in a domain of international law - such as the one concerning treaties - so strongly infiltrated by the voluntarism of States, the aforementioned provision of Article 60(5) of the Vienna Convention de Viena constitutes a clause of

safeguard in defence of the human being"121.
59. In the account of one of the participants in the 1968-1969 Vienna Conference from which the first Vienna Convention on the Law of Treaties (1969) resulted, the provision at issue resulted from a Swiss amendment, promptly supported by several Delegations, to the effect that the grounds for termination or suspension of operation of treaties should not apply to treaties of a humanitarian character, embodying provisions of protection of the human person122. Article 60(5) was maintained in the second Vienna Convention on the Law of Treaties (1986). Another participant in the Vienna Conference of 1968-1969 pondered that there are certain obligations - of protection of the human person - endowed with an "absolute character", which cannot be allowed to reduce, as
"l'idée d'une régression définitive de la conscience humaine est difficile à accepter. En revanche il serait souhaitable que la pratique internationale se moralise dans tous les domaines et acquière ainsi, par la reconnaissance des États, un niveau croissant de valeur: il pourrait et il devrait y avoir normalement de nouvelles règles progressives. Sans qu'il soit nécessaire d'insister sur ce point, les racines profondes d'une telle conception rejoignent la tradition du droit naturel, rajeunie de nos jours par la conception du droit naturel à contenu progressif. En ce sens aussi, on pourrait soutenir que les règles impératives ont dépassé le stade coutumier pour atteindre un niveau plus stable qui est celui des principes généraux du droit international public"123.
60. Thus, the contemporary law of treaties itself, as attested by Article 60(5) of the 1969 and the 1986 Vienna Conventions, overcoming the precept of reciprocity in the implementation of treaties of a humanitarian character, reckons that the obligations enshrined therein are of ordre public, and may generate effects erga omnes. The overcoming of reciprocity in human rights protection has taken place amidst the constant search for an expansion of the ambit of protection (for the safeguard of an increasingly wider circle of individuals, in any circumstances), for achieving a higher degree of the protection due, and for the

gradual strengthening of the mechanisms of supervision, in the defense of common superior values.


5. Concluding Observations.
61. Last but not least, attention should also be drawn to the interaction of human rights treaties in the process of interpretation. Given the multiplicity of those treaties, it comes as little or no surprise that the interpretation and application of certain provisions of a given human rights treaty have at times been resorted to as orientation for the interpretation of corresponding provisions of another - usually newer - human rights treaty. The practice of international supervisory organs - including under the two regional, European and Inter-American, systems of protection - affords several examples of such interpretative interaction124.
62. Moreover, given the possible concurrent interpretation of equivalent provisions of two or more human rights treaties, there is room for the search of the most favourable norm to the alleged victim. This test - primacy of the most favourable norm to the individual, - gathers express support in certain provisions of such human rights treaties such as Article 29(b) of the American Convention on Human Rights, and has found application in practice.
63. The essential motivation underlying the interpretation of human rights treaties has been, rather than to ensure the uniformity of international law in general and in all circumstances whatsoever, to respond effectively to the needs and imperatives of the international protection of human beings. In proceeding in this way, international supervisory organs - such as the two regional Human Rights Courts - have constructed a converging jurisprudence as to the special nature of human rights treaties and the implications and consequences ensuing therefrom. This has been largely due to the overriding identity of the object and purpose of those treaties. The reassuring result has been a uniform interpretation of the International Law of Human Rights. This, in turn, has contributed significantly to the development of international law in the present domain of protection.
64. Thus, a chapter of international law usually approached in the past from the outlook of State voluntarism, comes nowadays to be seen in a different light, under the influence of basic considerations of humanity. Although this chapter of international law, - the law of treaties, - has been opened to manifestations of the individual "will" of States, as from the issue of the treating-making power itself, - the fact cannot keep on being overlooked that basic considerations of humanity have marked their presence also in the law of treaties. As demonstration of this evolution, developments pertaining to the interpretation of treaties, reservations to treaties, denunciation of treaties, and termination and suspension of operation of treaties disclosed a certain preparedness to elaborate freely on areas such as those, so as to search for responses to the contemporary needs of the international community.
65. Like International Law in general, the law of treaties in particular is undergoing a historical process of humanization as well. It cannot pass unnoticed, as timely recalled by Egon Schwelb three decades ago125, that the preambles themselves of the two Vienna Conventions on the Law of Treaties (of 1969 and 1986) contain an assertion of the principle of universal respect for, and observance of, human rights126. The treaty-making power is no longer an exclusive prerogative of States, as it used to be in the past; the 1986 [second] Vienna Convention on the Law of Treaties came to address the treaty-making of international organizations, some of which devoted to causes of direct interest to human beings and humankind as a whole.
66. The interpretation of treaties has been considerably enriched by the methodology pursued by international supervisory organs of human rights treaties. Such interpretation has adjusted itself to the specificity of human rights treaties127. It has, moreover, favoured a harmonization of the standards of implementation of the protected rights in the domestic legal order of the States Parties to those treaties128. The two international human rights Tribunals (the European and Inter-American Courts) have been engaged in a converging jurisprudential construction in respect of reservations to treaties to the effect of avoiding to deprive human rights treaties of their effet utile, thus preserving the mechanisms of protection of the human person established by them.
III. International Rule of Law: Non-Appearance and the Duty of Compliance.
67. Until the Inter-American Court's Judgments of 01.09.2001 dismissing Trinidad and Tobago's preliminary objections in the Hilaire, Constantine et allii, and Benjamin et allii cases (cf. supra), the respondent State appeared before the Court, having participated in the contentious proceedings and presented its arguments before the Court. In the Hilaire case, in particular, it appeared before the Court in the public hearing of 10 August 2000, wherein it submitted its views in an orderly and procedurally constructive way. After being notified of the Court's adverse decision, Trinidad and Tobago no longer appeared before the Court, neither in the proceedings on the merits in the aforementioned cases (joined), nor in the proceedings of the subsequent and present Caesar case.

68. Despite its non-appearance129, Trinidad and Tobago remains bound by the Court's Judgments in all these cases: though rendered after its denunciation of the American Convention, they pertain to acts taken by the State before the denunciation, in accordance with the terms of Article 78 of the American Convention. Together with the subsequent Judgments on the merits and reparations, the Court's decisions remain all binding upon the respondent State, and an eventual failure of this latter to comply with the Court's Judgments on the merits and reparations in those previous cases and with the present Judgment in the Caesar case, would amount to an additional violation of the American Convention (Article 68), as well as of general international law (pacta sunt servanda), with all the juridical consequences attached thereto.
69. Any interpretation to the contrary, tending to "explain" or "justify" non-compliance with the Judgments, would amount to contempt of Court, and disclose a lack of familiarity with the most elementary principles of international legal procedure. A State may, of course, choose not to appear before the Court, but in doing so it ought to bear the consequences of such non-appearance, rendering itself unable to rebut the evidence produced130 and to defend itself. What a State is not entitled to do is to ignore a Judgment that is clearly binding upon it, as that would undermine the very foundations of international jurisdiction, which have required so much endeavour from past generations to be built and established in this part of the world.
70. Having always been a strong supporter of the cause of international justice, I feel obliged to state in the present Separate Opinion that international jurisdiction cannot be left at the mercy of the caprice of governments, usually under the pressure of haphazard domestic factors, - and those who have no constraints to undermine it are to bear the historical responsibility for such deconstruction. I feel confident that Trinidad and Tobago will not come to this extreme.
71. Trinidad and Tobago seems to be aware of the temporal and material limitations of denunciation under Article 78 of the American Convention (supra), as it participated in proceedings before the Court afterwards, including a public hearing of 10 August 2000 in the Hilaire case, more than one year after its denunciation of the American Convention began to have effects (as from 26.05.1999). What is rather enigmatic is its subsequent and prolonged non-appearance - not to say "disappearance" - before the Court after its Judgments on preliminary objections (supra), adverse to it. Non-appearance does not at all pave the way for non-compliance. A State may choose not to appear before the Court, at any stage of the proceedings, at its own risk, but it cannot ignore the Court's Judgment without having its international responsibility thereby engaged.
72. Trinidad and Tobago's sudden non-appearance before the Court, - or rather, disappearance from it, - is certainly to be regretted. It does not foster the rule of law at international level, to say the least. If it is meant to be a prior notice of eventual non-compliance with decisions of the Court, then the respondent State has strong reasons for concern, as the Law would not stand on its side. Let us hope this will prove not to be the case. But were it to be so, Trinidad and Tobago would then stand outside the Law, thus incurring into an additional violation of the American Convention.

73. Although non-appearance has occurred from time to time in inter-State litigation (e.g., before the Permanent Court of International Justice [PCIJ] and the International Court of Justice [ICJ])131, there is no compelling reason why it should take place in proceedings in human rights cases, opposing States to individuals, the ostensibly weaker party. If by non-appearance the State is announcing eventual non-compliance with the decisions of the Tribunal, it should bear the juridical consequences of its attitude, - and the other States Parties should react to that, in the exercise of the collective guarantee underlying all human rights treaties. Non-appearance does not affect the condition of the State as a party to the case; whether it likes it or not, it remains the respondent State in the case, even in absentia.
74. Article 68(1) of the American Convention is clear in determining that "the States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties". Non-appearing States remain parties to the cases at issue. Their duty of compliance corresponds to a basic principle of the law on the international responsibility of the State, strongly supported by international case-law, whereby States ought to comply with their conventional obligations in good faith (pacta sunt servanda).
75. It is somewhat surprising to witness that, as time goes by and the old ideal of the realization of international justice gains ground (as with, for example, the recent establishment of the International Criminal Court, pursuant to an original proposal by Trinidad and Tobago at the United Nations), some States remain resistant to the operation of the most perfected means of settlement of disputes at international level, that is, judicial settlement132 (as illustrated, ironically, by the posture of Trinidad and Tobago in the aforementioned cases in the inter-American human rights system).
76. The precedent - among others - set up by the United States, of "withdrawal" and non-appearance before the ICJ, after a Judgment adverse to it on preliminary objections (in 1984) in the Nicaragua versus United States case, would be a very bad example for Trinidad and Tobago to follow. On the occasion, the United States earned much criticism from distinct corners of the international community, including from some of its own most distinguished jurists (like the late Keith Highet133), for its disservice to the international rule of law. In the words of K. Highet, the strategy of non-appearance "may also backfire", and
"may suffer a setback, once its absurdity and overall uselessness are correctly perceived. (...) The negative forces undermining the progressive development of international law - non-production, non-cooperation and non-appearance - (...) will now be seen for what they are"134.
77. In the same line of thinking, it was further pointed out, in other commentaries, that the United States' defiant behaviour of withdrawing from that case and no longer appearing in its proceedings before the ICJ
"appears not only injurious to the efficacy of the Court's compulsory jurisdiction under Article 36(2), but detrimental to the development of international lawfulness as well. Such lawfulness cannot develop as long as States are inclined to place themselves above the law"135.
78. Is this the sad example that Trinidad and Tobago would really wish to follow? I could hardly believe it. How would that appear to the future generations of its own jurists? Expectations from the new generations of jurists are always high, - hoping that they will succeed to right the wrongs made by their predecessors, - while, on the other hand, politicians (also referred to rather elegantly as "decision-makers") look the same everywhere in the world, and there seem to be no compelling reasons to expect much from them.
79. Not only do they look the same everywhere, but they have further looked the same at all times. Already over three centuries before our era, in his Nicomachean Ethics, Aristotle could hardly hide or dissimulate his concern as to what politicians might be thinking or what decisions were they about to take136. In the XIIIth. century, in his Treatise on the Law, Thomas Aquinas wondered whether the recta ratio could ever be apprehended by the power-holders137. It would be hard to deny that, with extremely rare exceptions, politicians, always and everywhere, have appeared much more engaged in gaining and retaining power (for power's sake), than in securing the observance of the human rights of those they govern or are supposed to represent.
80. The States which, in the history of international adjudication, have "withdrawn" from contentious proceedings instituted against them (particularly after an initial decision of the Tribunal adverse to them), have adopted a "self-judging conduct", harmful to the international rule of law, and, ultimately, also to themselves, to their own reputation, as
"A State which would be a judge in its own cause is an advocate pleading into a void from which no clear answer is returned"138.
81. Non-appearance is in fact foreseen in Article 53 of the Statute of the ICJ, its raison d'être being to secure that the Court carries out its functions whenever one of the parties fails to appear before it; the non-appearing State remains a party to the case, and remains fully bound by the decision rendered by the Court139 (as if it had appeared before the Court). This is what ensues also from Article 27 (on default procedure) of the current Rules of Procedure of the Inter-American Court, which likewise foresee non-appearance in the same understanding, and entitle the Inter-American Court, whenever a party fails to appear in or continue with a case, to take such measures, on its own motion, as may be necessary to complete the consideration of the case. Article 27 adds that when a party enters a case at a later stage of the proceedings, it shall take up the proceedings at that stage.

82. In most cases, non-appearance has been resorted to aiming at exerting pressure upon the complaining party and the Court, but experience shows that non-appearing States have hardly gained anything - except criticisms - from such harmful conduct140. Furthermore, it is to be kept always in mind that non-appearance and non-compliance are not synonymous at all; non-appearing - or "disappeared" - States are under the duty to comply with Judgments in absentia (pacta sunt servanda).
83. On this particular subject, the Institut de Droit International adopted a clarifying resolution141 in its session of Basel of 1991, in which it took into account the difficulties that non-appearance of a party may present to the other party and to the Court itself142. In its preamble, the resolution pondered inter alia that "the absence of a party is such as to hinder the regular conduct of the proceedings, and may affect the good administration of justice"143. The resolution recalled, in its operative part, the State's "duty to cooperate in the fulfilment of the Court's judicial functions" (Article 2), and added that
"Each State entitled (...) to appear before the Court and with respect to which the Court is seized of a case is ipso facto (...) a party to the proceedings, regardless of whether it appears or not" (Article 1).
84. The resolution of the Institut further provided that, notwithstanding the non-appearance of a State, this latter remains
"bound by any decision of the Court in that case, whether on jurisdiction, admissibility or the merits" (Article 4).

And the resolution concluded that "a State's non-appearance before the Court is in itself no obstacle to the exercise by the Court of its functions" (Article 5). This is an accurate statement of the applicable law in cases of non-appearance, which by no means can be taken to lead to non-compliance, amounting to an additional violation of international law.


IV. The Expanding Material Content and Scope of Jus Cogens in Contemporary International Law.
85. May I conclude this Separate Opinion in the present Caesar case in a positive tone, with an expression of support for the present Judgment in absentia of the Inter-American Court, in respect particularly to two remaining aspects that I see it fit to dwell upon here. Firstly, the Court has expressly and rightly admitted in the present Caesar case that, in certain circumstances, the existence of a law (such as that of Corporal Punishment Act of Trinidad and Tobago), manifestly incompatible with the relevant provisions of the American Convention (Article 5(1) and (2)), may per se constitute - by its nature and effects - a violation of this latter144. In support of this view, may I refer to my arguments, to this effect, in my Dissenting Opinion in the El Amparo case, concerning Venezuela (Judgments on reparations, of 14.09.1996), as well as in my Dissenting Opinion in the Caballero Delgado and Santana case, pertaining to Colombia (Judgment on reparations, of 29.01.1997), - which I do not find it necessary to reiterate literally herein.
86. Secondly, and most importantly, in the present Judgment in the Caesar case, the Court has rightly acknowledged that the prohibition of torture as well as of other cruel, inhuman and degrading treatment, has entered into the domain of jus cogens. Corporal punishment, such as the one examined in the cas d'espèce, is per se in breach of the Convention (Article 5(1) and (2)) and of peremptory norms of international law (paragraphs 70, 88 and 100). In several of my Individual Opinions presented in this Court, I have drawn attention to the relevance of the expanding material content and scope of jus cogens. The present Judgment is inserted into this reassuringly evolutive jurisprudential construction.
87. Thus, in its historical Advisory Opinion n. 18 on The Juridical Condition and the Rights of the Undocumented Migrants (of 17.09.2003), the Inter-American Court significantly held that the aforementioned fundamental principle of equality and non-discrimination, in the present stage of evolution of International Law, "has entered into the domain of the jus cogens"; on such principle, which "permeates every legal order", - the Court correctly added, - "rests the whole juridical structure of the national and international public order"145. The Court, moreover, referred to the evolution of the concept of jus cogens, transcending the ambit of both the law of treaties and of the law of the international responsibility of the State, so as to reach general international law and the very foundations of the international legal order146.
88. In support of this view, in my Concurring Opinion in that pronouncement of the Court (Advisory Opinion n. 18), after summarizing the history of the entry of jus cogens into the conceptual universe of international law, I maintained that
"The emergence and assertion of jus cogens in contemporary International Law fulfil the necessity of a minimum of verticalization in the international legal order, erected upon pillars in which the juridical and the ethical are merged. (...)

On my part, I have always sustained that it is an ineluctable consequence of the affirmation and the very existence of peremptory norms of International Law their not being limited to the conventional norms, to the law of treaties, and their being extended to every and any juridical act147. Recent developments point out in the same sense, that is, that the domain of the jus cogens, beyond the law of treaties, encompasses likewise general international law148. Moreover, the jus cogens, in my understanding, is an open category, which expands itself to the extent that the universal juridical conscience (material source of all Law) awakens for the necessity to protect the rights inherent to each human being in every and any situation".
To the international objective responsibility of the States corresponds necessarily the notion of objective illegality (one of the elements underlying the concept of jus cogens). In our days, no one would dare to deny the objective illegality of acts of genocide149, of systematic practices of torture, of summary and extra-legal executions, and of forced disappearance of persons, - practices which represent crimes against humanity, - condemned by the universal juridical conscience150, parallel to the application of treaties. Already in its Advisory Opinion of 1951 on the Reservations to the Convention against Genocide, the International Court of Justice pointed out that the humanitarian principles underlying that Convention were recognizedly `binding on States, even without any conventional obligation'.
(...) In sum and conclusion on the point under examination, the emergence and assertion of jus cogens evoke the notions of international public order and of a hierarchy of legal norms, as well as the prevalence of the jus necessarium over the jus voluntarium; jus cogens presents itself as the juridical expression of the very international community as a whole, which, at last, takes conscience of itself, and of the fundamental principles and values which guide it"151.
89. In the same line of reasoning, in my Separate Opinion in the case of the Massacre of Plan de Sánchez case, concerning Guatemala (Judgment of 29.04.2004), I saw it fit to insist on the point that
"The concept itself of jus cogens, in my understanding, transcends the ambit of both the law of treaties152 and the law on the international responsibility of the States153, so as to encompass general international law and the very foundations of the international legal order"154.
90. And in my Separate Opinion in the Tibi versus Ecuador case (Judgment of 07.09.2004), I allowed myself to add that jus cogens, besides its horizontal dimension whereby it has a bearing upon the very foundations of international law, also expands itself in
"a vertical dimension, of the interaction of the international and national legal orders in the present domain of protection. The effect of jus cogens, in this second (vertical) plane, is in the sense of invalidating every and any legislative, administrative or judicial measure which, at the level of the domestic law of the States, attempts to authorize or tolerate torture" (par. 32).
91. Furthermore, in its Judgment of 08.07.2004 in the Gómez Paquiyauri versus Peru case, the Inter-American Court expressly admitted that, in our days, an international juridical regime has been formed of absolute prohibition of all forms of torture and of extrajudicial executions, and that such prohibition belongs today to the domain of international jus cogens (pars. 115-116 and 131)155. In my Separate Opinion in that case I pondered that such acknowledgement of jus cogens, in constant expansion, in turn, "reveals precisely the reassuring opening of contemporary international law to superior and fundamental values", pointing towards the emergence of a truly universal international law (par. 44). I reaffirmed this understanding, of an absolute prohibition, of jus cogens, of torture, in any circumstance, in my Separate Opinion (par. 26) in the Tibi versus Ecuador case (Judgment of 07.09.2004).
92. The Judgment this Court has just adopted in the present Caesar versus Trinidad and Tobago fits squarely into its jurisprudence constante on the evolutive interpretation of jus cogens itself. The Court, here, quite rightly takes a step forward, in upholding the absolute prohibition, proper to the domain of jus cogens, of torture as well as any other cruel, inhuman and degrading treatment. It is relevant to keep on identifying the expanding material content and scope of jus cogens, as the Inter-American Court has been doing in the last years. The Inter-American Court has probably done for such identification of the expansion of jus cogens more than any other contemporary international tribunal. It is important that it continues doing so, in the gradual construction, at this beginning of the XXIst. century, of a new jus gentium, the international law for humankind.
Antônio Augusto Cançado Trindade

Judge
Pablo Saavedra-Alessandri

Secretary

CASO CAESAR VS TRINIDAD Y TOBAGO




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