-4omnes, encompassing the relations of the individual both with the public (State) power
as well as with other individuals (particuliers)” (paras. 77-78).9
9.
It is not my intention to reiterate here everything I have written on this issue
in my numerous opinions within this Court, but rather to make my position very clear
as regards the broad scope of the general obligation to guarantee rights of Article
1(1) of the Convention. I would like to conclude this introduction referring to two
additional and very specific elements. The first refers to what is called the broad and
autonomous scope of the general obligations of Articles 1(1) and 2 of the American
Convention, which are supplementary to the Convention obligations that specifically
relate to each of the rights that it protects. On this specific point, in my said separate
opinion in the Mapiripán Massacre v. Colombia (judgment of September 15, 2005), I
indicated that:
"The general obligation of Article 1(1) of the Convention - to respect and ensure
respect for the right that it protects, without any discrimination - is not 'accessory' to
the provisions concerning the rights embodied in the Convention, taken one by one,
individually. The American Convention is not violated only and to the extent that a
specific right that it protects is violated, but also when there is a failure to comply with
one of the general obligations (Articles 1(1) and 2) that it stipulates.
Article 1(1) of the American Convention is much more than a simple
'accessory'; it is a general obligations imposed on State Parties, which encompasses all
the rights protected by the Convention. Its continued violation can lead to additional
violations of the convention, which add to the original violations. In this way, Article 1(1)
is endowed with a broad scope. It refers to a permanent obligation of the State, the
failure to comply with which may result in new victims, leading per se to additional
violations, without it being necessary to relate them to the rights originally violated.
Within the Court, I have been insisting in my interpretation of Article 1(1) - and also of
Article 2 - of the Convention, which maximizes the protection of human rights under the
Convention, since my dissenting opinion in Caballero Delgado and Santana v. Colombia
(reparations, judgment of January 29, 1997). [...]
To deny the broad scope of the protection obligations under 1(1) and 2 of the
Convention - or minimize them by an atomized and disaggregated interpretation of
these rights - would be equal to depriving the Convention of its effect utile. The InterAmerican Court cannot depart from its consistent case law in this respect and has the
obligation to ensure that the high standards of protection built up over the years by its
case law are preserved. This notable case law10 in this regard cannot be halted, and I
would be firmly opposed to any intent to do so. This construct gives expression to law in
evolution, which does not permit retrogression" (paras. 2-3 and 5).
10.
It is my understanding, in relation to Article 1(1) of the Convention, that the
Pueblo Bello Massacre v. Colombia provides eloquent testimony of the interpretation
I formulated in the above case, as regards the broad and autonomous scope of that
general obligation. In brief, the objective international responsibility of the State is
constituted in the same way in cases such as the Pueblo Bello Massacre, in which the
necessary acknowledgment of Drittwirkung is required, clearly emphasizing the
nature erga omnes of the Convention’s protection obligations.
11.
The second element relates to another argument of the defendant State - that
"the structures for attributing responsibility" to the State would constitute numerus
clausus (cf. para. 103(c) of this judgment) - which, in my opinion, is untenable. The
Court has very properly rejected it (para. 116). I consider that it is the specific list of
10
.
Which I have sought to summarize recently; cf. e.g., A.A Cancado Trindades, “The Case-Law of the
Inter-American Court of Human Rights: An Overview”, in Studi di Diritto Internazionale in Onore di G. ArangioRuiz, vol. III, Napoli, Edit. Scientifica, 2004, pp. 1873-1898.
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