8
Status and Rights of Undocumented Migrants (of 17.09.2003), I noted that said erga omnes
obligations, characterized by jus cogens (from which they derive)8, being necessarily
objective in nature, therefore encompass all the addressees of the legal provisions (omnes),
both members of the bodies of the public State authorities and private individuals (para.
76). And I added:
"In my view, we can consider such erga omnes obligations from two
dimensions, one horizontal and the other vertical, which complement each
other. Thus, the erga omnes obligations of protection, in a horizontal
dimension, are obligations pertaining to the protection of human beings that
pertain to the international community as a whole9. In the framework of
international treaty 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 that constitute the organized
international community, whether or not they are Parties to those treaties
(obligations erga omnes lato sensu). In a vertical dimension, the erga omnes
obligations of protection bind both the bodies and agents of (State) public
power, and the individuals themselves (in inter-individual relations).
The advent and evolution of International Human Rights Law have
decisively contributed to development of this vertical dimension. But it is
surprising that, until now, these horizontal and vertical dimensions of the erga
omnes obligations of protection have gone entirely unnoticed by
contemporary legal doctrine. Nevertheless, I see them clearly take shape in
the legal system of the American Convention on Human Rights itself. Thus, for
example, 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 erga omnes effects,
encompassing relations of the individual both with the public (State)
authorities as well as with other individuals (particuliers).10” (paras. 77-78)
26.
Actually, contemporary legal doctrine, addressing erga omnes obligations, has
focused almost exclusively on the horizontal dimension, without establishing a distinction
with regard to the other, vertical dimension, and without addressing the latter at all. The
facts in the instant case of the Mapiripán Massacre have shown the urgent need to pay
greater attention to what I call the vertical dimension of the erga omnes obligations to
provide protection.
27.
I have been insisting on this point –shown once again in the cas d'espèce – within
.
In this same Opinion, I noted that “By definition, all the norms of jus cogens necessarily generate
obligations erga omnes. While jus cogens is a concept of material law, the erga omnes obligations refer to the
structure of their performance on the part of all the entities and all the individuals bound by them. In turn, not all
erga omnes obligations necessarily refer to norms of jus cogens.” (para. 80)
8
9
.
IACtHR, Blake versus Guatemala case (Merits), Judgment of 24.01.1998, Separate Opinion of Judge A.A.
Cançado Trindade, para. 26, and see paras. 27-30.
10
.
See, in this regard, in general terms, the resolution adopted by the Institut de Droit International (I.D.I.)
at the 1989 session in Santiago de Compostela (Article 1), in: I.D.I., 63 Annuaire de l'Institut de Droit
International (1989)-II, pp. 286 and 288-289.