CONCURRING OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
In voting in favour of the adoption of the present Provisional Measures of
Protection, whereby the Inter-American Court of Human Rights orders that protection
be extended to all the members of the Communities of the Jiguamiandó and of the
Curbaradó in Colombia, I feel obliged to make reference to my Concurring Opinion in
the Resolution of Provisional Measures of Protection previously adopted by this Court,
on 18 June 2002, in the Peace Community of San José de Apartadó Case. It is not my
intention here to reiterate the considerations that I have developed in that other
Concurring Opinion, but rather to single out briefly the central points of my reflections
so as to secure the effective protection of human rights in a complex situation such as
that of the present case of the Communities of the Jiguamiandó and of the Curbaradó.
2.
In the present Resolution, the Court sustains, once again, its criterion to the
effect that the Provisional Measures under Article 63(2) of the American Convention on
Human Rights can protect the members of a collectivity or persons linked to it, who,
although unnamed, are identifiable8. We are, as the Court points out, before obligations
erga omnes of protection, on the part of the State, to all persons under its jurisdiction;
such obligations, as the Court indicates, are to be complied with "not only in relation to
the power of the State but also with regard to acts of third parties (individuals),
including irregular armed groups of any kind"9.
3.
Such obligations erga omnes grow in importance in a situation of armed
conflict, such as that of the present case affecting the members of the Community
Council of the Jiguamiandó and of the Families of the Curbaradó. This is, in my view, a
case which clearly requires the recognition of the effects of the American Convention
vis-à-vis third parties (the Drittwirkung), without which the conventional obligations of
protection would be reduced to little more than dead letter.
4.
From the circumstances of the present case of the Communities of the
Jiguamiandó and of the Curbaradó, it is clearly inferred that the protection of human
rights determined by the American Convention Americana, 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). 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 community10, even though the basis of action is the breach - or
the probability or imminence of breach - of individual rights.
5.
As I pondered in my aforementioned Concurring Opinion in the Peace
Community of San José de Apartadó Case,
"The juridical development of the obligations erga omnes partes of protection
assumes an increasingly greater importance, above all in the face of the
8
Considerandum n. 9 of the present Resolution.
9
Considerandum n. 11 of the present Resolution.
.
.
10
.
Suggesting an affinity with the class actions.
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