3
7.
In sustaining, as I have been doing, for years, the convergences between the
corpus juris of human rights and that of International Humanitarian Law (at
normative, interpretative and operational levels)14, I think, however, that the
concrete and specific purpose of development of the obligations erga omnes of
protection (the necessity of which I have been likewise sustaining for some time) can
be better served, by the identification of, and compliance with, the general obligation
of guarantee of the exercise of the rights of the human person, common to the
American Convention and the Geneva Conventions (infra), rather than by a
correlation between sustantive norms - pertaining to the protected rights, such as
the right to life - of the American Convention and the Geneva Conventions.
8.
That general obligation is set forth in Article 1.1 of the American Convention
as well as in Article 1 of the Geneva Conventions and in Article 1 of the Additional
Protocol I (of 1977) to the Geneva Conventions. Their contents are the same: they
enshrine the duty to respect, and to ensure respect for, the norms of protection, in
all circumstances. This is, in my view, the common denominator (which curiously
seems to have passed unnoticed in the pleadings of the Commission) between the
American Convention and the Geneva Conventions, capable of leading us to the
consolidation of the obligations erga omnes of protection of the fundamental right to
life, in any circumstances, in times both of peace and of internal armed conflict. It is
surprising that neither doctrinea, nor case-law, have developed this point sufficiently
and satisfactorily up to now; until when shall we have to wait for them to awake
from an apparent and prolonged mental inertia or lethargy?
9.
It is about time, in this year 2000, to develop with determination the early
jurisprudential formulations on the matter, advanced by the International Court of
Justice precisely three decades ago, particularly in the cas célèbre of the Barcelona
Traction (Belgium versus Spain, 1970)15s. It is about time, on this eve of the XXIst
century, to develop systematically the contents, the scope and the juridical effects or
consequences of the obligations erga omnes of protection in the ambit of the
International Law of Human Rights, bearing in mind the great potential of application
of the notion of collective guarantee, underlying all human rights treaties, and
responsible for some advances already achieved in this domain.
10.
The concept of obligations erga omnes has already marked presence in the
international case-law16, as illustrated, in so far as the International Court of Justice
is concerned, by its Judgments in the cases of the Barcelona Traction (1970), of the
Nuclear Tests (1974), of Nicaragua versus United States (1986), of East Timor
9.
Such as I have developed, inter alia, in my essay "Aproximaciones o Convergencias entre el
Derecho Internacional Humanitario y la Protección Internacional de los Derechos Humanos", in Seminario
Interamericano sobre la Protección de la Persona en Situaciones de Emergencia - Memoria (Santa Cruz de
la Sierra, Bolivia, junio de 1995), San José, CICR/ACNUR/Gob. Suiza, 1996, pp. 33-88.
10.
It may be recalled that, in that case, the International Court of Justice for the first time
distinguished, on the one hand, the inter-State obligations (proper to the contentieux diplomatique), and,
on the other hand, the obligations of a State vis-à-vis the international community as a whole (erga
omnes obligations). These latter - added the Court - derive, e.g., in contemporary international law, inter
alia, from the "principles and rules concerning the basic rights of the human person", - it so occurring that
certain rights of protection "have entered into the body of general international law", and others "are
conferred by international instruments of a universal or quasi-universal character"; Barcelona Traction
case (Belgium versus Spain, 2nd. phase), ICJ Reports (1970) p. 32, par. 34, and cf. also par. 33.
11.
Including with a reference to them in the tenth Advisory Opinion (of 1989) of the Inter-American
Court of Human Rights, on the Interpretation of the American Declaration on the Rights and Duties of Man
(paragraph 38).