5
13.
Some human rights treaties establish a mechanism of petitions or
communications which comprises, parallel to the individual petitions, also the interState petitions; these latter constitute a mechanism par excellence of action of
collective guarantee. The fact that they have not been used frequently25 (on no
occasion in the inter-American system of protection, until now) suggests that the
States Parties have not yet disclosed their determination to construct a the
international ordre public based upon the respect for human rights. But they could and should - do so in the future, with their growing awareness of the need to achieve
greater cohesion and institutionalization in the international legal order, above all in
the present domain of protection.
14.
In any case, there could hardly be better examples of mechanism for
application of the obligations erga omnes of protection (at least in the relations of
the States Parties inter se) than the methods of supervision foreseen in the human
rights treaties themselves, for the exercise of the collective guarantee of the
protected rights26. In other words, 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.
15.
At last, the absolute prohibition of grave violations of fundamental human
rights - starting with the fundamental right to life - extends itself, in fact, in my view,
well beyond the law of treaties, incorporated, as it is, likewise, in contemporary
customary international law. Such prohibition gives prominence to the obligations
erga omnes, owed to the international community as a whole. These latter clearly
transcend the individual consent of the States27, definitively burying the positivistvoluntarist conception of International Law, and heralding the advent of a new
international legal order committed with the prevalence of superior common values,
and with moral and juridical imperatives, such as that of the protection of the human
being in any circumstances, in times of peace as well as of armed conflict.
Antônio A. Cançado Trindade
Judge
Manuel E. Ventura-Robles
Secretary
Condorelli and L. Boisson de Chazournes, "Quelques remarques à propos de l'obligation des États de
`respecter et faire respecter' le droit international humanitaire `en toutes circonstances'", in Études et
essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l'honneur de Jean
Pictet (ed. C. Swinarski), Genève/La Haye, CICR/Nijhoff, 1984, pp. 29 and 32-33.
20.
For a study of this point in particular, cf. S. Leckie, "The Inter-State Complaint Procedure in
International Human Rights Law: Hopeful Prospects or Wishful Thinking?", 10 Human Rights Quarterly
(1988) pp. 249-301.
21.
Y. Dinstein, "The Erga Omnes Applicability of Human Rights", 30 Archiv des Völkerrechts (1992)
pp. 16 and 22, and cf. 16-37; and cf. M. Byers, op. cit. supra n. (8), pp. 234-235; M. Ragazzi, op. cit.
supra n. (12), pp. 135 and 213.
22.
C. Tomuschat, "Obligations Arising for States Without or Against Their Will", 241 Recueil des
Cours de l'Académie de Droit International de La Haye (1993) p. 365.