4
of the actio popularis, admitted the possibility of "a right of action without any showing
of individual prejudice or individual substantive interest as distinguished from the
general interest"15. Law has undeniably evolved, in its historical development, in
encompassing new values, in jurisdictionalizing social justice, and in extending
protection to social groups or human collectivities, safeguarding, in reality, not such
groups per se, but rather the individuals who compose them16.
11.
Hence the necessity of individualization of the members of the groups or
communities, that is, of the persons who need protection (including not to run the risk
of decharacterizing the provisional measures of protection, in their current stage of
historical evolution). In this understanding, - I concluded, on this point, in my
aforementioned Concurring Opinion, - the way is paved for "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)"17.
12.
Perhaps in the future, with the much necessary development of the legal regime
of the obligations erga omnes of protection of the human being, it may be expected
that each one of the members of a more institutionalized international community
comes to have the means of action to require juridically the compliance with those
obligations18. The day in which this occurs - if it comes, - an authentic actio popularis in
international law would appear, for the compliance with the aforementioned obligations
erga omnes, lato sensu (and no longer only erga omnes partes), of protection.
13.
In the public hearing before this Court of 13 June 2002 in the present case of
the Community of Peace of San José of Apartadó, the representation of Colombia
pointed out that "the State is within the Community", - what is right. But it is also right
that the Community is within the State, and this latter is obliged, under the American
Convention, not only to respect the rights protected by this latter, but, moreover, to
guarantee the free and full exercise of such rights, as establisehd by Article 1(1) of the
Convention. This means, as clearly ensued from the circumstances of the present case
of the Community of Peace of San José of Apartadó, that the protection determined by
the Convention, to be effective, comprises not only the relations between the
individuals and the public power, but also their relations with third parties (clandestine
groups, paramilitary, and other groups of individuals).
14.
In the public hearig of 13.06.2002 referred to, the State correctly recognized its
obligation to act also vis-à-vis private third parties19. The Court, on its turn, sustains,
15
.
International Court of Justice, South West Africa case, Dissenting Opinion of Judge Ph. Jessup, ICJ
Reports (1966) p. 388.
16
.
International Court of Justice, South West Africa case, Dissenting Opinion of Judge K. Tanaka, ICJ
Reports (1966) pp. 252-253 and 308.
17
.
As I pointed out in paragraph 21 of my aforementioned Concurring Opinion in the case of the
Haitians and Dominicans of Haitian Origin in the Dominican Republic (Provisional Measures of Protection,
Resolution of 18.08.2000).
18
.
J. Juste Ruiz, "Las Obligaciones `Erga Omnes' en Derecho Internacional Público", in Estudios de
Derecho Internacional - Homenaje al Profesor Miaja de la Muela, tomo I, Madrid, Tecnos, 1979, p. 228.
19
.
Having Seen n. 11(a) of the present Resolution.