2
With the transition from civil procedural law into international human rights law, they
move out of the strictly precautionary realm and into the sphere of protection. 18
5.
The jurisprudence of the Inter-American Court of Human Rights has made a
decisive contribution to this subject, perhaps more than any other international
tribunal to date. Its jurisprudence on the subject traces its roots to a convention
and, in terms of the breadth of its scope, is unparalleled in contemporary
international jurisprudence. In recent years, and right up to the present, it has
tapped all the potential for protection –through prevention- that can be drawn from
the language of Article 63(2) of the American Convention.
6.
In my Concurring Opinion in the Matter of the Peace Community of San José
de Apartadó (Order of June 18, 2002), I pointed out that the State’s obligation to
protect is not confined to the State’s relations to persons under its jurisdiction; in
certain circumstances that obligation also applies to relations between third parties;
it is, then, a genuine obligation erga omnes of protection, which in the instant case is
an obligation vis-à-vis all persons incarcerated in Urso Branco Prison. As I wrote in
that Concurring Opinion –and do so in relation to the present case as well -- in the
final analysis what we have here is the State’s obligation erga omnes to protect all
persons subject to its jurisdiction, an obligation that becomes all the more important
in a situation of constant violence and insecurity like the one at Urso Branco Prison
and that
"(...) requires clearly the recognition of the effects of the American Convention
vis-à-vis third parties (the Drittwirkung), without which the conventional obligations of
protection would be reduced to little more than a dead letter.
The reasoning as from the thesis of the objective responsibility of the State is,
in my view, ineluctable, particularly in a case of provisional measures of protection as
the present. The intention here is to avoid irreparable harm to the members of a
community and to the persons who render services to this latter, in a situation of
extreme gravity and urgency, which encompasses actions, armed and otherwise, of
paramilitary and clandestine groups, along with the actions of organs and agents of the
public forces. (paragraphs 14-15).
7.
Later, in my Concurring Opinion in the case of the Communities of the
Jiguamiandó and of the Curbaradó (Order of March 6, 2003), a case that also
involved individual and collective dimensions, I took the liberty of once again
insisting that the response to acts of violence committed by armed irregulars of any
kind must be recognition of the third-party effects of the American Convention “(the
Drittwirkung),” – inherent in obligations erga omnes, - "without which the
conventional obligations of protection would be reduced to little more than a dead
letter.” (pars. 2-3). I added that given the circumstances of that case –and of the
present case as well- it is clear that
the protection of human rights determined by the American Convention, to be
effective, comprises not only the relations between the individuals and the public power,
but also their relations with third parties (…). This reveals the new dimensions of the
international protection of human rights, as well as the great potential of the existing
mechanisms of protection, - such as that of the American Convention, - set in motion in
18
.
For a study of this evolution, cf. A.A. Cançado-Trindade, Tratado de Direito Internacional dos
Direitos Humanos, vol. III, Porto Alegre, S.A. Fabris Ed., 2003, pp. 80-83; A.A. Cançado-Trindade,
"Provisional Measures of Protection in the Evolving Case-Law of the Inter-American Court of Human Rights
(1987-2001)", in El Derecho Internacional en los Albores del Siglo XXI - Homenaje al Prof. J.M. Castro-Rial
Canosa (ed. F.M. Mariño Menéndez), Madrid, Ed. Trotta, 2002, pp. 61-74; A.A. Cançado-Trindade, "Les
mesures provisoires de protection dans la jurisprudence de la Cour Interaméricaine des Droits de
l'Homme", 4 Revista do Instituto Brasileiro de Direitos Humanos (2003) pp. 13-25.