6
13.
Said general protection obligation,17 - as I added in the referenced Opinion in
the Case of Las Palmeras-, is imposed upon each State Party individually as well as
upon all of them jointly (obligation erga omnes partes - paras. 11-12). Therefore,
“there could hardly be better examples of mechanism for application of the obligations
erga omnes of protection (…) than the methods of supervision foreseen in the human
rights treaties themselves, for the exercise of the collective guarantee of the protected
rights. (…) The mechanisms for application of the obligations erga omnes partes of
protection already exist, and what is urgently need[ed] is to develop their legal regime,
with special attention to the positive obligations and the juridical consequences of the
violations of such obligations” (para. 14).
In this line of thought, in this Order in the matter of the Penitentiary in Araraquara,
when the Court defends the thesis of the positive obligations of the State, it refers
precisely to the general obligation of the States set forth in Article 1(1) of the
American Convention, which is ineluctably interrelated with the general obligation
contained in Article 2 thereof (cf. supra).
V.
The Broad Scope of Erga Omnes Protection Obligations: Their
Vertical and Horizontal Dimensions
14.
Moving on to the question of what I call the broad scope of the erga omnes
obligations of protection,18 in my Concurring Opinion in the Advisory Opinion No. 18 of
the Inter-American Court on the Juridical Condition and Rights of the Undocumented
Migrants (of September 17, 2003), I stated that such erga omnes obligations,
characterized by jus cogens (from which they derive)19 as being endowed with a
necessarily objective character, encompass all the addressees of the legal norms
(omnes), not only those who serve in State organs but also private individuals (para.
76). And I further stated, in pursuance of my objective of developing jurisprudence on
the broad scope of erga omnes protection obligations:
“(...) 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).
(...) as to 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.”20 (Paras.
77-78).
17
.
Indeed, the general protection obligation encompasses the application of the provisional measures
of protection under the American Convention. In my Concurring Opinion in the Matter of Haitians and
Dominicans of Haitian-origin in the Dominican Republic (Order of August 18, 2000), I pointed out the change
in both the rationale itself and the object of the provisional measures of protection (which progressed, in
their historical development, from Civil Procedure Law to Public International Law) as a result of their
implementation in International Human Rights Law (paras. 17 and 23).
18
.
Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, Vol. II, Porto
Alegre, S.A. Fabris Ed., 1999, pp. 412-420.
19
.
In the aforesaid Opinion, I specified that “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” (para. 80).
20
.
Cf., in this regard, in general, the resolution adopted by the Institut de Droit International (I.D.I.) at the
session held 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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