13
international Judgment (the right to access international justice lato sensu), duly
backed by legal thinking and grounded in the law applicable to the cas d'espèce.
Article 25 of the Inter-American Convention is in effect a pillar of the Rule of Law in a
democratic society, closely related to the right to a fair trial (Article 8), duly
expressing the universally recognized general principles of law, that are part of
international jus cogens.
36.
As I pointed out in my recent Separate Opinion in the Case of the Pueblo Bello
Massacre v. Colombia (Judgment of January 31, 2006),
"My contention that Articules 25 and 8 of the Inter-American Convention cannot be
dissociated (supra) implies characterizing access to justice, understood as its full
enforcement, as part of jus cogens, that is that the full scope of all the rights to judicial
protection and to a fair trial in the sense of Articles 25 and 8 taken as a whole is
intangible as a matter of jus cogens. There can be no doubt that fundamental
guarantees, common to International Human Rights Law and International Humanitarian
Law, are meant for universal enforcement in all and any circumstances, are imperative
law (being part of jus cogens), and impose erga omnes protection obligations.
In the wake of its historical Advisory Opinion OC-18/03 on “Legal Status and Rights of
Undocumented Migrants” in 200352, the Court could have already taken that other
qualitative leap forward in its case law. I dare entertain the hope that the Court will do it
as soon as possible if it really goes ahead with its ground-breaking case-law, —instead
of trying to halt it— and makes more headway after the advance achieved with solid
grounds and courage in its abovementioned Advisory Opinion number 18 along the line
of the ongoing expansion of the substantive contents of jus cogens" (paras. 64-65).
This is the construction emancipating the human being that I uphold, with the aim of
putting an end either to the highhandedness, or to the omissions, or to the lack of
due diligence on the part of the State, the role of which is to guarantee the rights of
all the individuals under its jurisdiction.
37.
Seven years after the Judgment on the Merits by this Court in the
paradigmatic case of the "Street Children” (Villagrán Morales et al.) v. Guatemala,
Judgment of September 19, 1999,53 the abandoned, the forgotten of this world once
again reach an international human rights court in quest for justice, in the cases of
the members of the Yakye Axa (Judgment of June 17, 2005) and Sawhoyamaxa (the
instant Judgment) Communities. In the cas d'espèce, the people forcibly displaced
from their homes and their ancestral lands, and socially marginalized and excluded,
have actually reached an international jurisdiction before which they have finally
found justice.
38.
A decade ago, in the Judgments of this Court on preliminary objections of
January 30 and 31, 1996, in the cases of Castillo Páez and Loayza Tamayo,
respectively, regarding Perú, I advanced, in my Separate Opinions, the following
considerations, which were followed by the changes amended into the third and
fourth (and current) Rules of the Court, that today —as I always upheld— grants the
petitioners locus standi in judicio in all the stages of the adjudicatory proceedings
before the Court:
52
.
In which the Court upheld that the equality and the non-discrimation principles are part of
international jus cogens.
53
.
And also cf. the Judgment on reparations in the same case, of May 26, 2001.