CONCURRING OPINON OF JUDGE A.A. CANÇADO TRINDADE
1.
I am voting in favor of these provisional measures through which the InterAmerican Court of Human Rights is ordering that protection be extended to all
members of the Kankuamo Indigenous People in Colombia. Still, I feel obliged to
revisit the conceptual construct that I have been advocating within the InterAmerican Court, which concerns the obligations erga omnes of protection under the
American Convention. I have no intention of repeating, in detail, everything I have
thus far said on the subject, particularly in my other Concurring Opinions on the
Orders for Provisional Measures adopted by the Court in the Matter of the Peace
Community of San José de Apartadó (of June 18, 2002) and Matter of The
Communities of Jiguamiandó and Curbaradó (of March 6, 2003). Instead, I prefer to
briefly highlight some of the central points I made on the subject, with a view to
ensuring effective protection of human rights in a complex situation such as that of
the Kankuamo Indigenous People.
2.
Indeed, well before these cases were brought to this Court’s attention, I had
already underscored the pressing need to develop doctrine and jurisprudence on the
legal regime of the obligations erga omnes of protection of the rights of the human
being (for example, in my Concurring Opinions in Blake vs. Guatemala, Judgment on
the Merits, January 24, 1998, par. 28, and Judgment on Reparations, January 22,
1999, par. 40). In my Concurring Opinion in the Case of Las Palmeras v. Colombia,
Judgment on Preliminary Objections, February 4, 2000, I suggested that a proper
understanding of the broad scope of the general obligation to ensure the rights
recognized in the American Convention, provided for in Article 1(1) thereof, could be
instrumental in developing the obligations erga omnes of protection (paragraphs 2
and 6-7).
3.
The general obligation to ensure the exercise of rights to all persons subject
to its jurisdiction is –I added in my Concurring Opinion in the Case of Las Palmerasincumbent upon each State Party individually and on all of them collectively
(obligation erga omnes partes - paras. 11-12). I wrote that
"there could hardly be better examples of mechanism for application of the
obligations erga omnes of protection (…) than the methods of supervision foreseen in
the human rights treaties themselves (...) for the exercise of the collective guarantee of
the protected rights. (...) the mechanisms for application of the obligations erga omnes
partes of protection already exist, and what is urgently need is to develop their legal
regime, with special attention to the positive obligations and the juridical consequences
of the violations of such obligations. (par. 14).
4.
The general obligation to ensure includes the application of provisional
measures of protection under the American Convention. In my concurring opinion on
the case of the Haitians and Dominicans of Haitian Origin in the Dominican Republic
(Order of August 18, 2000), I took the liberty of pointing out the change that had
occurred in both the rationale and purpose of provisional measures of protection
(which historically moved from civil procedural law to public international law) as a
result of the impact their application had within the framework of the International
Law of Human Rights (paragraphs 17 and 23): with their introduction into the
conceptual universe of the International Law of Human Rights, provisional measures
underwent a transition: they went from safeguarding the efficacy of the functions of
the courts to protecting the most fundamental rights of the human person. With the