7
15.
In a display of short-sightedness, contemporary legal authors, in discussing
erga omnes obligations, have focused almost exclusively on the horizontal dimension
(obligations to the international community as a whole), failing to distinguish it from
the vertical dimension and completely overlooking the latter, which is so important for
International Human Rights Law. It is imperative to give more attention to what I call
the vertical dimension of erga omnes obligations of protection.
16.
I will continue to insist on this issue, both from within the Inter-American Court
and the Institut de Droit International. In the latter, I have done so both in my
writings21 and in its debates. A little more than a year ago, precisely in its last debates
on the subject in its last session in the Polish city of Krakow, I allowed myself to point
out, in my speech of August 25, 2005, that:
"(...) Precisely because obligations erga omnes incorporate fundamental values
shared by the international community as a whole, compliance with them appears to me
required not only of States, but also of other subjects of international law (including
international organizations as well as peoples and individuals). Related to jus cogens, such
obligations bind everyone.
After all, the beneficiaries of the compliance with, and due performance of,
obligations erga omnes are all human beings (rather than States). I am thus concerned
(...) that an essentially inter-State outlook (...) does not sufficiently reflect this important
point. Moreover, the purely inter-State dimension of international law has long been
surpassed, and seems insufficient, if not inadequate, to address obligations and rights erga
omnes. To me, it is impossible here not to take into account the other subjects of
international law, including the human person. (...)
Furthermore, the obligation to respect, and to ensure respect of, the protected
rights, in all circumstances, - set forth in humanitarian and human rights treaties, - that is
to say, the exercise of the collective guarantee, - is akin to the nature and substance of
erga omnes obligations, and can effectively assist in the vindication of compliance with
those obligations. Jus cogens, in generating obligations erga omnes, endows them with a
necessarily objective character, encompassing all the addressees of the legal norms
(omnes), - States, peoples and individuals. In sum, it seems to me that the rights and
duties of all subjects of international law (including human beings, the ultimate
beneficiaries of compliance with erga omnes obligations) should be taken into account in
the determination of the legal regime of obligations erga omnes, and in particular of the
juridical consequences of violations of such obligations.
Last but not least, I support the reference (...) to the qualification of "grave"
breaches of erga omnes obligations, as they affect fundamental values shared by the
international community as a whole and are owed to this latter, which, in my view,
comprises all States as well as other subjects of international law. All of us who have
accumulated experience in the resolution of human rights cases know for sure that rather
often we have been faced with situations which have disclosed an unfortunate
diversification of the sources of grave violations of the rights of the human person (such as
systematic practices of torture, of forced disappearance of persons, of summary or extralegal executions, of traffic of persons and contemporary forms of slave work, of gross
violations of the fundamental principle of equality and non-discrimination) - on the part of
State as well as of non-State agents (such as clandestine groups, unidentified agents,
death squads, paramilitary, and the like). This has required a clear recognition of the
effects of the conventional obligations of protection also vis-à-vis third parties (the
Drittwirkung), including individuals (identified and unidentified ones).
I feel that we cannot adequately approach erga omnes obligations, - compliance
with which benefits ultimately the human person, - from a strictly inter-State perspective
or dimension, which would no longer reflect the complexity of the contemporary
international legal order. Obligations erga omnes have a horizontal dimension, in the sense
that they are owed to the international community as a whole, to all subjects of
international law, but they also have also a vertical dimension, in the sense that they bind
21
.
Cf. A. A. Cançado Trindade, "Reply [- Obligations and Rights Erga Omnes in International Law]", in
71 Annuaire de l'Institut de Droit International - Session de Cracovie (2005) n. 1, pp. 153-156 and 208-211.
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