6
19.
The Inter-American Court has acted, so far, at the same time with prudence
and prospective vision, without indulging into the still nebulous doctrinal debate
about the existence or otherwise of an actio popularis in international law. In his
well-known and progressive Dissenting Opinion in the South-West Africa case (1966)
before the International Court of Justice, Judge Philip Jessup did not base his
reasoning on an actio popularis in international law either. This did not impede him
to point out that international law has, nevertheless, accepted and created situations
in which one recognizes "a right of action without having to prove an individual harm
or an individual substantive interest, distinct from the general interest"16.
20.
On his turn, in his equally well-known and visionary Dissenting Opinion in the
same South-West Africa case, Judge Kotaro Tanaka tampoco did not need to resort
either to the figure of the actio popularis (even though recognized in the national
legal systems) in order to affirm that every member of a human society has interest
in the accomplishment of social justice and of certain humanitarian principles, and
that this historical evolution itself of Law shows that this latter is enriched from the
cultural point of view in encompassing values which were previously outside its
domain17. Hence, for example, the jurisdictionalization of social justice; in the case of
the protection of social groups, - added perspicaciously Judge Tanaka, - what is
protected is not the group per se as a whole, but rather the individuals who compose
it18.
21.
The domain is, in my understanding, open to an evolution towards the
crystallization of an actio popularis in international law, to the extent that one
achieves a greater conscientization of the existence of a true international
community, formed by the States as well as by the peoples, communities, private
groups and individuals (both governed and governors), - such as was propounded as
from the XVIth century by the so-called founding fathers of the law of nations (droit
des gens)19. There is a difference between to request provisional measures of
protection for a community of an "indeterminate" character20, and to request them
for a community or group whose members can be individualized21.
22.
To reason, in the circumstances of the present case, as from the existencie of
an actio popularis, would present the risk of distorting the character of the
provisional measures of protection, in their current stage of historical evolution. It
being so, as to the persons protected by the Provisional Measures which the Court
has just ordered, in the present case of the Haitians and Dominicans of Haitian Origin
in the Dominican Republic, the Tribunal has duly individualized them, without failing
to singling out the context of their situation, in further requiring from the State
detailed information on the situation of the frontier communities or "bateyes" whose
members may find themselves involved in the problem dealt with herein.
16
International Court of Justice, ICJ Reports (1966) p. 388.
17
International Court of Justice, ICJ Reports (1966) pp. 252-253.
18
Ibid., p. 308.
.
.
.
19
.
As can be seen, e.g., in the works by Francisco de Vitoria (Relecciones Teológicas, 1538-1539),
Alberico Gentili (De Jure Belli, 1598), Francisco Suárez (De Legibus ac Deo Legislatore, 1612), Hugo
Grotius (De Jure Belli ac Pacis, 1625), Samuel Pufendorf (De Jure Naturae et Gentium, 1672), Christian
Wolff (Jus Gentium Methodo Scientifica Pertractatum, 1749).
20
.
21
As does the Inter-American Commission in paragraph 31 of its petition of 30 May, 2000.
.
As the Inter-American Court has already admitted, in its recent Resolutions on Provisional
Measures of Protection in the cases Digna Ochoa and Others (of 17.11.1999) and Clemente Teherán (of
12.08.2000).