3
8.
As for the broad scope of the obligations erga omes of protection, in my
Concurring Opinion in the Inter-American Court’s Advisory Opinion OC-18 on the
Juridical Condition and Rights of Undocumented Migrants (of September 17, 2003), I
noted that the jus cogens (from whence the obligations erga omnes emanate)11
characterizes them as being objective of necessity. They thus encompass all the
parties for whom the legal norms were intended (omnes), whether they be members
of the public organs of the State or private persons (para. 76). I went on to write
the following:
In my view, we can consider such obligations erga omnes from two dimensions,
one horizontal12 and the other vertical, which complement each other. Thus, the
obligations erga omnes of protection, in a horizontal dimension, are obligations
pertaining to the protection of the human beings due to the international community as
a whole.13 In the framework of conventional international law, they bind all the States
Parties to human rights treaties (obligations erga omnes partes), and, in the ambit of
general international law, they bind all the States which compose the organized
international community, whether or not they are Parties to those treaties (obligations
erga omnes lato sensu). In a vertical dimension, the obligations erga omnes of
protection bind both the organs and agents of (State) public power, and the individuals
themselves (in the inter-individual relations).
The advent and the evolution of the International Law of Human Rights have
made a decisive contribution toward the formation of this vertical dimension. But it is
surprising that, until now, these horizontal and vertical dimensions of the obligations
erga omnes of protection have gone entirely unnoticed by contemporary legal doctrine.
Nevertheless, I see them clearly established in the legal regime of the American
Convention on Human Rights. Thus, for example, in the case of the vertical dimension,
the general obligation set forth in Article 1(1) of the American Convention, to respect
and to ensure respect for the free exercise of the rights protected by it, generates
effects erga omnes, encompassing the relations of the individual both with the public
(State) power as well as with other individuals.14 (paras. 77-78).
9.
As I pointed out in my Concurring Opinion on the Order for Provisional
Measures that this Court adopted yesterday in the Matter of the Pueblo indígena de
Kankuamo (paras. 11-13), measures such as those that the Inter-American Court
has just adopted in the present Matter of the Pueblo indígena de Sarayaku serve to
establish a continual monitoring mechanism based on a provision of a human rights
treaty like the American Convention, to keep track of a situation of extreme gravity
and urgency. As I had already anticipated in my Concurring Opinion in the Matter of
The Communities of Jiguamiandó and Curbaradó (paras. 6-8), such measures also
contribute to the gradual establishment of a genuine right to humanitarian
assistance. They illustrate that in situations of this kind, it is possible and viable to
11
.
In this same Opinion I wrote the following: “By definition, all the norms of jus cogens generate
necessarily obligations erga omnes. While jus cogens is a concept of material law, the obligations erga
omnes refer to the structure of their performance on the part of all the entities and all the individuals
bound by them. In their turn, not all the obligations erga omnes necessarily refer to norms of jus cogens.”
(parar. 80).
6
In that same opinion, I added that “the obligations erga omnes partes, in their horizontal
dimension, find expression also in Article 45 of the American Convention, which foresees the mechanism
(not yet utilized in the practice of the Inter-American system of human rights), of inter-State complaints
or petitions. (...) In any case, these dimensions, both horizontal and vertical, reveal the wide scope of the
obligations erga omnes of protection.” (par. 79)
13
.
IACtHR, Case of Blake v. Guatemala (Merits), Judgment of January 24, 1998, Separate Opinion of
Judge A.A. Cançado-Trindade, para. 26, and cf. paras. 27-30.
14
.
Cf., in this regard, in general, the resolution adopted by the Institut de Droit International (I.D.I.)
at the meeting in Santiago de Compostela in 1989 (Article 1), in: I.D.I., 63 Annuaire de l'Institut de Droit
International (1989)-II, pp. 286 and 288-289.
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