25
of the right to life. The decision of the majority of the Court in the sister case of the
Indigenous Community Yakye Axa is on the verge of absurdity, for it found the right
to life to have been infringed to the detriment of the survivors, but did not find the
right to life to have been infringed to the detriment of those who actually died!
Summum jus, summa injuria.
71.
The great lesson to be derived from this regrettable case law deviation,
remedied and overcome in the instant Judgment in the case of the Sawhoyamaxa
Community, is clear to me. An international human rights tribunal cannot get lost in
technicalities belonging in domestic tribunals (especially in criminal matters). An
international human rights tribunal cannot try to halt its own case law, for we act in
a protection area that forbears no backstepping, as I had already warned firmly in
my extensive Dissident Opinions (paras. 1-49, and 1-75, respectively) in the Case of
the Serrano Cruz Sisters v. El Salvador (Judgments on preliminary objections of
September 23, 2004, and on the merits and reparations, of March 1, 2005). An
international human rights tribunal can never let istself lower the international
protection standards, more so when the parties are in a flagrantly vulnerable
position, if not abandoned, condemned —many of them since birth— by their fellowmen to social exclusion, and to chronic poverty, which, as I see it, constitutes 99,
the deprivation of all human rights.
72.
Last but not least, in the instant Judgment in the case of the Sawhoyamaxa
Community, the Court has, sponte sua, correctly decided, applying the jura novit
curia principle, to examine for the first time the right to recognition of personality
before the law (Inter-American Convention, Article 3), in the light of the
circumstances in the cas d'espèce. Bearing in mind that the male and female children
of the aforementioned Community did not have the benefit of a "birth certificate,
death certificate or any other kind of identification document” (para. 73(73), the
Court rightfully established the breach of Article 3 —as related to Article 1(1)— of the
Convention in the instant case. It is not my intention to discuss, at the end of this
Separate Opinion, the relevance of the personality before the law of human beings,
both at the domestic law and the international law levels.
99
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol.., Porto
Alegre/Brasil, S.A. Fabris Ed., ...; A.A. Cançado Trindade, Direitos Humanos e Meio Ambiente - Paralelo
dos Sistemas de Proteção Internacional, Porto Alegre/Brasil, S.A. Fabris Ed., 1993, pages ... .