-32003), I also insisted in the need for "acknowledgement of the effects of the
American Convention vis-à-vis third parties (Drittwirkung),"6 and added that
"In order to be effective, the protection of human rights determined by the American
Convention encompasses not only the relations between individuals and the public
authorities, but also their relations with third parties (clandestine or paramilitary groups
or other groups of individuals). This reveals the new dimensions of international human
rights protection, and also the vast potential of the existing protection mechanisms such as the American Convention - used to protect collectively the members of a whole
community, even though the grounds for the proceedings may be the harm - or the
probability or imminence of harm - of individual rights" (para. 4).
8.
It is worth recalling that, in its transcendent Advisory Opinion No. 18 on The
Juridical Status and Rights of Undocumented Migrants (of September 17, 2003), the
Inter-American Court correctly maintained that the rights protected by the American
Convention must be respected in both relations between individuals and State
authorities, and in inter-individual relations, and the obligation to guarantee may
also be required of the States Parties in that regard (para. 140) under Article 1(1) of
the Convention. Thus, the Convention provisions of protection have effects in relation
to third parties (individuals), thereby establishing the nature erga omnes of the
protection obligations (Drittwirkung). In my concurring opinion to that Advisory
Opinion N.18, I recalled that these obligations erga omnes, characterized by jus
cogens (from which they derive)7 are endowed with a necessarily objective nature
and therefore encompass all the beneficiaries of the juridical norms (omnes), both
the members of the State's bodies and individuals (para. 76). And I continued:
"In my view, we can consider such obligations erga omnes from two
dimensions, one horizontal 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 whole8. 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
general international law, they bind all the States which compose the organized
international community, whether or not they are Parties to those treaties (obligations
erga omnes lato sensu). In a vertical dimension, the obligations erga omnes of
protection bind both the organs and agents of (State) public power, and the individuals
themselves (in the inter-individual relations).
For the conformation of this vertical dimension have decisively contributed the
advent and the evolution of the International Law of Human Rights. But it is surprising
that, until now, these horizontal and vertical dimensions of the obligations erga omnes
of protection have passed entirely unnoticed from contemporary legal doctrine.
Nevertheless, I see them clearly shaped in the legal regime itself of the American
Convention on Human Rights. Thus, for example, as to the vertical dimension, the
general obligation, set forth in Article 1(1) of the American Convention, to respect and to
ensure respect for the free exercise of the rights protected by it, generates effects erga
6
.
Cf. paras. 2-3 of the said opinion.
.
In the same opinion, I clarified that "By definition, all the norms of jus cogens necessarily generate
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
their turn, not all the obligations erga omnes necessarily refer to norms of jus cogens" (para. 80).
8.
IACourtHR Case of Blake versus Guatemala (merits), Judgment January 24, 1998. Separate
Opinión of Judge A.A. Cançado Trindade, para. 26, and cf. para. 27-30.
9.
Cf. In this regard, in general, the resolution adopted by the Institute of Internacional LAw (IIL) at
the 1989 session in Santiago de Compostela (Article 1), in: IDI, 63 Annuarie de l’Institut de Droit
International (1989)-II, pp. 286 and 288-289
7
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents