5
10.
As I see it, this argument becomes particularly compelling when the
circumstances involve individuals that are in the custody of the State, and even more
so when these individuals are children and adolescents (minors). Subsequently, in
another case that encompassed both an individual and a collective dimension, in my
Concurring Opinion in the Matter of the Communities of Jiguamiandó and Curbaradó
regarding Colombia (Order on Provisional Measures of Protection of March 6, 2003), I
allowed myself to insist on the need for the “recognition of the effects of the American
Convention vis-à-vis third parties (the Drittwirkung),” —inherent in erga omnes
obligations— “without which conventional obligations of protection would be reduced to
little more than dead letter” (paras. 2–3). And I added that, from the circumstances
surrounding the case, it was 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 order to protect
collectively the members of a whole community,16 even though the basis of action is the
breach —or the probability or imminence of breach— of individual rights.” (Para. 4).
11.
It is clear from this Order that the obligation of a State to protect all persons
within its jurisdiction encompasses the obligation to monitor the conduct of third-party
individuals, which is an erga omnes obligation (Considering clauses No. 18 and 16). In
fact, I have been working from within this Court on the conceptual and case law
development of erga omnes protection obligations under the American Convention for
a long time now. It is not my intention here to embark on a detailed discussion of the
ideas I have already developed regarding this issue, particularly in my Concurring
Opinions in the Orders on Provisional Measures of Protection adopted by the Court in
the above-mentioned Matters of the Peace Community of San José de Apartadó (June
18, 2002), the Communities of Jiguamiandó and Curbaradó (March 6, 2003) and Urso
Branco Prison (July 7, 2004) as well as in the Matters of Pueblo indígena de Kankuamo
regarding Colombia (July 5, 2004), Pueblo indígena de Sarayaku regarding Ecuador
(July 6, 2004), "Globovisión" Television Station regarding Venezuela (September 4,
2004) and Mendoza Prisons regarding Argentina (June 18, 2005), but to mention,
albeit briefly, the key aspects of my views in this regard in order to ensure effective
human rights protection in complex situations such as the one existing in this matter of
the Penitentiary in Araraquara.
12.
In truth, way before these cases were brought to this Court, I had already
warned of the pressing need to promote the development of case law and
jurisprudence on the legal framework of erga omnes obligations to protect human
rights (e.g., in my Separate Opinions in the Judgment on the merits of January 24,
1998, para. 28, and the Judgment on reparations of January 22, 1999, para. 40, in the
Case of Blake v. Guatemala). And in my Separate Opinion in the Case of Las Palmeras
v. Colombia (Judgment on preliminary objections of February 4, 2000) I pointed out
that a proper understanding of the broad scope of the general obligation to protect the
rights enshrined in the American Convention, as set forth in Article 1(1) thereof, may
contribute to the development of erga omnes protection obligations (paras. 2 and 6-7).
16
.
Suggesting a similarity to class actions.
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