5
(regardless of the merits of the case, as may be). This is even more so required in
repeated cases of acts of harassment and aggression (and even death) —as in the
matter of the Community of San José de Apartadó, provisional measures regarding
Colombia— of individuals protected by Provisional Measures of Protection ordered by
this Court. This is urgently required in this dehumanized world empty of values we
live in.
III.
Lessons learnt at the Public Hearing held in Brasilia before the
Inter-American Commissions, on March 30, 2006
15.
At the above public hearing before this Court held on the date hereof (March
30, 2006), a few hours ago, in the city of Brasilia, in response to some questions I
allowed myself to ask to the Delegations of the Representative of the Beneficiaries of
the Measures, to the Delegation of the Inter-American Commission on Human Rights
and the Delegation of the State —which showed a spirit of encouraging procedural
cooperation throughout the hearing— the procedural parties involved agreed on the
fact that conventional obligations in matters of provisional measures of protection
under the American Convention have erga omnes effects. Hence, the need —
admitted to by the parties— of ensuring the personal security of inmates inside the
cellblocks (and not only by means of external surveillance of such cellblocks).
16.
The participants also agreed on the need of a clear and firm order of the
Court (as it was even expressly requested by the State itself) —occasion on which I
expressed I was skeptical to look for a “negotiation” or “conciliation” between the
“parties” in a summary proceeding in connection with the extreme gravity and
urgency as is the case of provisional measures of protection. The Inter-American
Court is not a “conciliation body”, and must act as the international court it is, with
even more power in cases of provisional measures of protection. This was so
requested by the three parties appearing at the public hearing today before the
Court.
17.
I heard their allegation with special care and attention, as they agreed with
my view on the topic under review. In fact, I have never been convinced by the
recent attempts of the Court to foster a “negotiated” solution, or a solution emerging
from “conciliation” between the “parties”, with respect to provisional measures of
protection, especially in connection with persons held in custody in prisons. The
Court must order said measures tout court. The distinctions between conciliation and
judicial solution are widely known, and judicial solution16 has been acknowledged as
the most developed and perfected means of dispute resolution.
18.
This takes me to the third and last lesson I will extract, if I may, from the
hearing held in Brasilia. It relates to the admission by the appearing parties of the
need to recognize the autonomous nature of international responsibility of the State,
pursuant to the provisions of Articles 63(2) and 1(1) of the American Convention —a
view which I have strongly supported from within the Court. This is manifest —and
raises great concern, at least for me— where a breach of provisional measures of
protection ordered by the Court brings along —as in the present case, among
others— other violations of ineluctable rights, such as the fundamental right to life.
16
.
Cf. A.A. Cançado Trindade, "Peaceful Settlement of International Disputes: Current State and
Perspectives," 31 Course in International Law organized by the Inter-American Juridical Committee - OAS
(2004-2005) pp. 1-46; A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação,
Rio de Janeiro, Ed. Renovar, 2002, pp. 749-789.
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