23
of nations —to preserve compacts, freedom and common good— and the secondary
law of nations —facing "the evil of men”, wars and captivity.87 The role of each agent
of public authority, —he added,— should be to enable all rational creatures to “attain
their purpose" (especially, the spiritual one) as a human being.88 When expressing
his indignation at the depopulations, slaughters, bondages, and other cruelties
perpetrated against indigenous people, B. de Las Casas —like F. de Vitoria,—
expressly invoked right reason and natural law.89
65.
The penetrating discourses of F. Vitoria and B. de las Casas in the 16th
century continue to echo in the human conscience and are, sadly, topical issues
today.90. With the passing centuries, the victimizers changed, but the victims are still
the same, the indigenous peoples in a situation of high vulnerability, as it is
illustrated by the instant case of the Sawhoyamaxa Community in this early 21st
century. Yet, human conscience has evolved to the point that in this time and day it
makes a difference: there exists an international human rights jurisdiction, the last
hope for those excluded and forgotten within national jurisdictions.
66.
In the instant case of the Sawhoyamaxa Community, once again, universal
legal conscience awakens, — as the ultimate material source of all Law, as I have
kept insisting in my many Opinions in this Court91, — making it possible once again,
after the cases of the "Street Children" (1999-2001) and that of the Indigenous
Community Yakye Axa (2005), for the forgotten and the abandoned people of the
world, surviving in the direst of circumstances, in the midst of the total want their
fellow-men have thrust upon them, to resort to international jurisdiction in quest for
having justice done.
2.
The Great Lesson to be learned from the instant case of the
Sawhoyamaxa Indigenous Community.
67.
To my mind, in the instant case of the Sawhoyamaxa Community, as well as
in its sister case of the Indigenous Community Yakye Axa, international responsibility
of the State for the creation, and perpetuation in time, of a situation of infra-human
living conditions leading to the death of several members of both such Indigenous
Communities was proven beyond doubt. Running contrary to the findings of the
majority of the Court in the case of the Indigenous Community Yakye Axa, no
87.
88.
Ibid., Volume II, page 1255.
Cf.Ibid., Volume II, page 1263.
89.
Cf. B. de las Casas, Brevísima Relación de la Destrucción de las Indias (Short Account of the
Destruction of the Indies) [1552], Barcelona, Ediciones 29, 1997 [reed.], pages 7-94, esp. pages 9 and
41.
90.
On the absurdity and “essential evil” of relations of dominance and oppression, cf. for example,
Simone Weil, Reflexiones sobre las Causas de la Libertad y de la Opresión Social Barcelona, Publ.
Paidós/Universidad Autónoma de Barcelona, 1995, pages 81-84 and 130-131.
91
.
Cf. My Concurring Opinion in pioneering Advisory Opinion No. 16, on The Right to Information on
Consular Assistance. in the Framework of the Guarantees of the due Process of Law (1999), paras. 3-4, 12
and 14; Concurring Opinion on the Provisional Protection Measures in the Case of Haitians and Dominicans
of Haitian-origin in the Dominican Republic (2000), para. 12; Separate Opinion in the Case of BámacaVelásquez v. Guatemala (merits, 2000), paras. 28 and 16; Concurring Opinion in Advisory Opinion No. 18
on the Condition and Rights of the Undocumented Migrants (2003), paras. 23-25 and 28-30, esp. par. 29;
among others.