5
Osman versus the United Kingdom (1998), that in certain circumstances it is
necessary to consider the
"positive obligation on the authorities to take preventive operational measures
to protect an individual whose life is at risk from the criminal acts of another
individual".21
15.
In brief, as shown by the aforementioned international jurisprudence, in each
and every circumstance the State has an obligation of due diligence, to avoid
irreparable damage to persons under its jurisdiction, including relations among
individuals –all the more so when these lead to a pattern of systematic violence. The
provisional measures adopted by the Inter-American Court in recent cases22 reveal
that it is possible and feasible to act, in situations of recurring violence, with respect
to the members of a human collectivity, strictly within the framework of the Law,
reaffirming the primacy of the latter over indiscriminate use of force. And they attest
to the current process of humanization of international law (toward a new jus
gentium) also regarding application of provisional measures of protection. All this
reveals that human awareness (the ultimate source of all Law) has awoken to the
need to protect the human person against violations of the rights of the human
person by the State and also by private third parties.
16.
At the Institut de Droit International, I have argued that exercise of the
emerging right to humanitarian assistance must emphasize the persons who are the
beneficiaries of said assistance, rather than the potential for action of the agents that
are materially able to provide it. The ultimate basis for exercise of said right lies in
the inherent dignity of the human person; human beings are truly entitled to the
rights protected, as well as to the very right to humanitarian assistance, and the
vulnerable situations in which they find themselves –especially in face of harassment
and threats of chronic violence- highlight the need for compliance with the erga
omnes obligations to provide protection of the rights inherent to them.
17.
In my opinion, the development of and due compliance with said erga omnes
obligations are indispensable to end systematic violence and impunity. Furthermore,
those entitled to the rights protected (or their legal representatives) are most able to
identify the basic needs for humanitarian assistance, which is a response, based on
the Law, to the new needs for protection of the human person.
Insofar as
international legal capacity and personality are definitively reinforced, beyond any
doubt, the right to humanitarian assistance may gradually become actionable.23
18.
The current phenomenon of expansion of said international legal personality
and capacity,24 in turn, is a response -as shown by recent cases before this Court
pertaining to members of human collectivities- to a pressing need of the international
community in our times. Finally, the doctrinal and case-law development of the erga
omnes obligations to provide protection to the human person, in each and every
21
.
ECtHR, Case of Osman versus the United Kingdom, Judgment of 28.10.1998, Series A, n. 1050,
para. 115.
22
.
See, e.g., note (1), supra.
23
.
See A.A. Cançado Trindade, "Reply [- Assistance Humanitaire]", 70 Annuaire de l'Institut de Droit
International - Session de Bruges (2002-2003) n. 1, pp. 536-540.
24
.
See A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de
Derechos Humanos, Bilbao, University of Deusto, 2001, pp. 9-104.
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