17
45.
In mi Concurrent Opinion in the first adjudicatory case that fully proceeded
under the new fourth Rules of the Court, that of the Five Pensioners v. Peru
(Judgment of February 28, 2003), I considered, along the same line of thought, that
"In fact, the assertion of those juridical personality and capacity constitutes the truly
revolutionary legacy of the evolution of the international legal doctrine in the second half
of the 20th century. The time has come to overcome the classic limitations of the
legitimatio ad causam in International Law, which have so much hindered its progressive
development towards the construction of a new jus gentium. An important role is here
being exercised by the impact of the proclamation of human rights in the international
legal order, in the sense of humanizing this latter: those rights were proclaimed as
62
inherent to every human being, irrespectively of any circumstances .
Statements in this sense are to be found in recent precedents of this Court, not only
adjudicatory, but advisory as well, for example its Advisory Opinion No. 17 on the
Juridical Condition and Human Rights of the Child (of August 28, 2002), which went
along the line of affirming the legal emancipation of the human being by emphasizing
the consolidation of children as persons before the law, as true subjects in law and
not simple objects of protection; that was the Leitmotiv permeating all the Advisory
Opinion No. 17 of the Court63.
46.
Before that, the aforementioned adjudicatory leading case of the “Street
Children “ (Villagrán Morales et al.) v Guatemala, 1999-2001) revealed the
importance of direct access of individuals to international jurisdiction, enabling them
to vindicate their rights against the acts of arbitrary power, and giving an ethical
content both to the internal public law rules and to those of international law. The
relevance of such right appeared clearly in the proceedings of that historical case,
wherein the mothers of the murdered minors, as poor and bereft as their children,
accessed international jurisdiction and appeared before the Court64 and, thanks to
the Judgments on the merits and reparations of this Court65, that protected them,
they could at least regain faith in human Justice66.
47.
Four years later, the case of the Juvenile Reeducation Institute v. Paraguay
showed once more, as I pointed out in my Separate Opinion (paras. 3-4), that the
human being, even in the most adverse of conditions, barges in as a subject of
International Human Rights Law, endowed with full international legal and procedural
capacity. The Judgment of the Court in the latter case duly recognized the high
relevance of the historical amendments introduced by the Court in its current Rules
62
Not so long ago I recalled what I had purported then in my Concurring Opinion (para. 7) on
Provisional Protection Measures in the case of two Children and Adolescents Deprived of their Freedom in
the Tatuapé FEBEM Complex v. Brasil (Order of November 30, 2005).
63
.
And eloquently affirmed in paragraphs 41 and 28 therein.
64
.
Public Hearings of January 28-29, 1999 and March 12, 2001 before this Court.
65
.
Of November 19, 1999 and of May 26, 2001, respectively.
66
.
In my extensive Separate Opinion (paras. 1-43) in that case (Judgment on reparations, of May
26, 2001), I made precisely that point, besides another one that has been so far practically unexplored by
interntional legal scholars and case law, to wit: the triad of victimization, human suffering and victim
rehabilitation.