2
omnes partes. Such petitions constitute, in this way, a mechanism par excellence of
action of collective guarantee.
4.
The actio popularis, originated in Roman law, was conceived for the safeguard of
the public or general interest, which, on its turn, would presumably secure the
individual interest; it thus recognized the solidarity between the interests of the
community and those of the individual8. But if it were necessary to draw a parallel
between and international petition on behalf of a human collectivity, as the Community
of Peace of San José of Apartadó in the cas d'espèce, and an institute of domestic law,
or of comparative law, I would be inclined to identify a corresponding element in the
so-called class action. In reality, the question of the determination of the contents of
the common interest of a community seems to me to be rather underlying the class
actions. These latter developed historically by a procedural necessity, whenever an
individual, member of a community, takes legal action in order to prevent (as in the
present context) or remedy an individual harm, which coincides with the harm to all the
members of such community. This is, thereby, a legal action of protection of those who
are defenceless.
5.
There seem to be points of contact or approximations between the class action
and the actio popularis, but the former seems to me to require more clearly the
existence of victims, even though potential. The question has simply not been dealt
with to date, with the due attention that it requires, on the part of the
jusinternationalist doctrine. There is pressing need to do it, as the question has
implications for the identification of the effective means to face the new challenges of
the international protection of human rights in our days. The present case of the
Community of Peace of San José of Apartadó before the Inter-American Court of
Human Rights invites us to a reflection on the matter.
6.
The fact that the mechanism of the aforementioned inter-State petitions, as the
embryo of the actio popularis under the American Convention, has not been utilized in
the inter-American system of protection so far, suggests that the States Parties to the
Convention have not yet disclosed their determination to construct a true international
ordre public based upon the respect for human rights. But this may perhaps come to
occur in the future, with the growing conscientization of the need to achieve greaer
cohesion and institutionalization in the international legal order, above all in the present
domain of protection.
7.
One ought to keep always in mind, as I pointed out in my Separate Opinion in
the Las Palmeras case (Preliminary Objections, 2000), that
"(...) there could hardly be better examples of mechanism for application of the obligations
erga omnes of protection (at least in the relations of the States Parties inter se) than the
methods of supervision foreseen in the human rights treaties themselves, for the exercise
of the collective guarantee of the protected rights9. In other words, the mechanisms for
8
.
R. von Ihering, El Fin en el Derecho, Buenos Aires, Omeba Ed., 1960 (reed.), p. 271. As Ihering
recalled in The Spirit of Roman Law (VIII, part I), by means of the actiones populares any person could act as
representative of the law, what stimulated the "idealist spirit" which, "without having an interest of one's own,
defends the law for the law's sake"; R. von Ihering, A Luta pelo Direito, São Paulo, Ed. M. Claret, 2000 (reed.),
p. 63 n. 11.
9
.
Y. Dinstein, "The Erga Omnes Applicability of Human Rights", 30 Archiv des Völkerrechts (1992) pp.
16 and 22, and cf. 16-37; and cf. M. Byers, "Conceptualising the Relationship between Jus Cogens and Erga