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Enforced Disappearances of Persons as a Violation of Jus Cogens: The Contribution of the Jurisprudence of the Inter-American Court of Human Rights

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The consolidation of the international regime of absolute prohibitions (belonging to the domain of jus cogens) of torture, summary and extra-legal executions, and enforced disappearances of persons has counted on the contribution of the case-law of contemporary international tribunals, such as, notably, the Inter-American Court of Human Rights (IACtHR). The jurisprudential construction of the IACtHR to this effect has taken place mainly in the period 1999–2004. The IACtHR began by addressing issues pertaining to its competence ratione temporis, duly distinguishing their bearing on responsibility and jurisdiction. The IACtHR singled out the aggravating circumstances surrounding enforced disappearances of persons, bringing about the enlargement of the notion of victim (comprising the next of kin). The IACtHR duly acknowledged and asserted the absolute prohibitions of jus cogens in the conformation of an international legal regime against grave violations of human rights and international humanitarian law (such as enforced disappearances of persons). The IACtHR became the first contemporary international tribunal, in this connection, to sustain that the enlarged material content of jus cogens encompasses nowadays the victims’ right of access to justice lato sensu, properly understood as the imperative of the realisation of objective or material justice.

Affiliations: 1: Emeritus Professor of Public International Law, University of Brasilia, Brazil Diplomatic Academy Rio Branco of Brazil, Brazil


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