4
Arellano et al. v. Chile (Judgment of September 26, 2006) in relation to the utter
incompatibility of the 1978 self-amnesty executive order issued by the Pinochet regime
with the American Convention.
8.
Moreover, and turning to the past decade, in my Dissenting Opinion in the Case
of Caballero-Delgado and Santana v. Colombia (Judgment on reparations of January
29, 1997), I stated, regarding to the interrelation between the general duties to
respect and to ensure respect for the protected rights and to harmonize the domestic
legal order with the international norms of protection of the American Convention
(para. 6), that:
“In fact, those two general obligations, - which are added to the other specific
conventional obligations concerning each of the protected rights, - are incumbent upon the
States Parties by the application of International Law itself, of a general principle (pacta
sunt servanda) whose source is metajuridical, in seeking to be based, beyond the
individual consent of each State, on considerations concerning the binding character of the
duties derived from international treaties. In the present domain of protection, the States
Parties have the general obligation, arising from a general principle of International Law, to
take all measures of domestic law to guarantee the effective protection (effet utile) of the
recognized rights.
The two general obligations enshrined in the American Convention - that of
respecting and guaranteeing the protected rights (Article 1(1)) and that of harmonizing
domestic law with the international norms of protection (Article 2) - appear to me to be
ineluctably intertwined. (…) As those conventional norms bind the States Parties - and not
only their governments, - in addition to the Executive, the Legislative and the Judicial
Powers are also under the obligation to take the necessary measures to give effectiveness
to the American Convention at domestic law level. Non-compliance with the conventional
obligations, as known, engages the international responsibility of the State, for acts or
omissions, either of the Executive Power, or of Legislative, or of the Judiciary. In sum, the
international obligations of protection, which in their wide scope are incumbent upon all the
powers of the State (…).” (Paras. 8-10).
IV.
The Provisional Measures of Protection of the Inter-American
Court and Erga Omnes Protection Obligations
9.
I shall now turn to the next point in my brief reflections in this Matter of the
Penitentiary in Araraquara. In my Concurring Opinion in the Matter of the Peace
Community of San José de Apartadó (Order on Provisional Measures of protection of
June 18, 2002), I allowed myself to point out that the protection obligation of a State
extends not only to the relationship between said State and the persons subject to its
jurisdiction but also, under certain circumstances, to the relationships among private
individuals; this is a true erga omnes protection obligation. As I stated in the aforesaid
Opinion, we stand, in short, before a State’s erga omnes protection obligation towards
all persons subject to its jurisdiction, which becomes increasingly important in the face
of chronic violence and insecurity -as is the case in this Matter of the Penitentiary in
Araraquara -, which, as I explained in my Concurring Opinion in the Matter of Urso
Branco Prison (Order on Provisional Measures of Protection Regarding Brazil of July 7,
2004) - and restate here“(…) clearly requires the recognition of the effects of the American Convention vis-à-vis
third parties (the Drittwirkung), without which conventional obligations of protection would
be reduced to little more than dead letter.
In my view, the rationale built on the thesis of objective responsibility of the State is - if I
may state this again- ineluctable, particularly in the case of provisional measures of
protection, as is in this case. The aim, here, is to prevent irreparable damage to members
of a community (...), in situations of extreme gravity and urgency, which involve the action
(…) of military and police bodies and agents.” (paras. 14-15)
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