6
17.
They illustrate that in situations of this kind, it is possible and viable to act
strictly within the framework of the Law,31 thereby reaffirming the primacy of the law
over the indiscriminate use of force.
They testify to the current process of
humanization of international law (moving toward a new jus gentium) in the area of
provisional measures of protection as well. All this points up the fact that the human
conscience (the ultimate source of all Law) has awakened to the need to protect the
human person from violations of his rights by both the State and third parties.
18.
At the Institut de Droit International, I have maintained that in the exercise of
the emerging right to humanitarian assistance, the emphasis must be on the persons
of the beneficiaries of the humanitarian assistance, and not on the potential for
action of the agents materially trained to provide that humanitarian assistance. The
ultimate basis for the exercise of that right lies in the inherent dignity of the human
person: human beings are, in effect, the titulaires of the protected rights and of the
right to humanitarian assistance. Their defenselessness and suffering (in prison) –
especially in situations of poverty, economic exploitation, social marginalization and
perhaps brutalization-merely underscore the need for obligations erga omnes to
protect the rights that are inherent in the human person.
19.
As I see it, those obligations erga omnes must be developed and complied
with in order to put an end to violence within prisons, impunity and institutionalized
injustice.
Moreover, the titulaires of the protected rights (or their legal
representatives) are those best qualified to identify their basic humanitarian relief
needs, which constitutes a response, informed by the Law, to the new needs for
human protection.
If the human person’s international legal personality and
standing ultimately materialize, then the right to humanitarian assistance may
gradually become justiciable.32
20.
Furthermore, as recent cases before this Court involving members of human
collectivities have made clear, the current expansion of international juridical
personality and standing33 is a response to a pressing need of the international
community in our times. The development of the doctrine and jurisprudence on
obligations erga omnes of protection of the human person, in any and all situations
or circumstances, will certainly be a contribution toward the formation of a true
international ordre public based on respect for and observance of human rights,
capable of ensuring greater cohesiveness in the organized international community
(the civitas maxima gentium), centered around the human person as the subject of
international law.
Antônio Augusto Cançado-Trindade
Judge
Pablo Saavedra-Alessandri
Secretary
31
.
Without having to resort to the unconvincing and unfounded rhetoric of so-called “humanitarian
intervention.”
32
.
Cf. A.A. Cançado-Trindade, "Reply [- Assistance Humanitaire]", 70 Annuaire de l'Institut de Droit
International - Session de Bruges (2002-2003) n. 1, pp. 536-540.
33
.
Cf. A.A. Cançado-Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de
Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 9-104.