3
"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 community, 2 even though the basis
of action is the breach -or the probability or imminence of breach- of individual rights.
(para. 4).
9.
As I wrote in the two precedents to the cas d'espèce3 -and as I reassert herewhen the sources (including those not identified) of human rights violations are so
diverse, as illustrated here by the succession of members of the Kankuamo
indigenous people alleged to have been victims in the present case, the juridical
development of the obligations erga omnes of protection becomes all the more
important, as do the convergences –at the normative, interpretational and operative
levels- among the International Law of Human Rights, International Humanitarian
Law and International Refugee Law.4 Recognizing the importance of obligations erga
omnes is essential to addressing the new requirements for protection of the human
person, especially in situations of extreme gravity and urgency such as the one
posed in the present Matter of the Pueblo indígena de Kankuamo.
10.
As for the broad scope of the obligations erga omes of protection, in my
Concurring Opinion in the Inter-American Court’s Advisory Opinion OC-18 on the
Juridical Condition and Rights of Undocumented Migrants (of September 17, 2003), I
noted that the jus cogens (from whence the obligations erga omnes emanate)5
characterizes them as being objective of necessity. They thus apply to all the parties
for whom the legal norms were intended (omnes), whether they be members of the
public organs of the State or private persons (para. 76). I went on to write the
following:
In my view, we can consider such obligations erga omnes from two dimensions,
one horizontal6 and the other vertical, which complement each other. Thus, the
obligations erga omnes of protection, in a horizontal dimension, are obligations
pertaining to the protection of the human beings due to the international community as
a whole.7 In the framework of conventional international law, they bind all the States
Parties to human rights treaties (obligations erga omnes partes), and, in the ambit of
2
.
Suggesting an affinity with class actions.
3
.
Cf. my aforementioned Concurring Opinions in the Matter of the Peace Community of San José de
Apartadó (2002, par. 19) and Matter of The Communities of Jiguamiandó and Curbaradó (2003, para. 5).
4
.
A.A. Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI,
Santiago, Editorial Jurídica de Chile, 2001, Chapter V, pp. 183-265.
5
.
In this same Opinion I wrote the following: “By definition, all the norms of jus cogens generate
necessarily obligations erga omnes. While jus cogens is a concept of material law, the obligations erga
omnes refer to the structure of their performance on the part of all the entities and all the individuals
bound by them. In turn, not all the obligations erga omnes necessarily refer to norms of jus cogens.”
(para. 80).
6
In that same opinion, I added that “the obligations erga omnes partes, in their horizontal
dimension, find expression also in Article 45 of the American Convention, which foresees the mechanism
(not yet utilized in the practice of the inter-American system of human rights), of inter-State complaints
or petitions. (...) In any case, these dimensions, both horizontal and vertical, reveal the wide scope of the
obligations erga omnes of protection.” (para. 79)
7
.
IACtHR, Case of Blake v. Guatemala (Merits), Judgment of January 24, 1998, Separate Opinion of
Judge A.A. Cançado Trindade, para. 26, and cf. paras. 27-30.