4
act strictly within the framework of the Law,15 thereby reaffirming the primacy of the
law over the indiscriminate use of force. They testify to the current process of
humanization of international law (moving toward a new jus gentium) in the area of
provisional measures of protection as well. All this points up the fact that the human
conscience (the ultimate source of all Law) has awakened to the need to protect the
human person from violations of his rights by both the State and third parties.
10.
At the Institut de Droit International, I have maintained that in the exercise of
the emerging right to humanitarian assistance, the emphasis must be on the persons
of the beneficiaries of the humanitarian assistance, and not on the potential activities
of the agents materially trained to provide that humanitarian assistance. The
ultimate basis for the exercise of that right lies in the inherent dignity of the human
person: human beings are, in effect, the titulaires of the protected rights and of the
right to humanitarian assistance. Their defenselessness and suffering –especially in
situations of poverty, economic exploitation, social marginalization and armed
conflict- merely underscore the need for obligations erga omnes to protect the rights
that are inherent in the human person.
11.
Furthermore, the titulaires of the protected rights are the ones most qualified
to identify their basic needs for humanitarian assistance, which is a response, based
on the Law, to the new needs for protection of the human person. If the human
person’s international legal personality and standing ultimately materialize, then the
right to humanitarian assistance may gradually become justiciable.16 As the present
Matter of the Pueblo indígena de Sarayaku reveals, the current expansion of
international juridical personality and standing is a response to a pressing need of
the international community in our times. The development of the doctrine and
jurisprudence of obligations erga omnes of protection of the human person, in any
and all situations or circumstances, will certainly be a contribution toward the
formation of a true international ordre public based on respect for and observance of
human rights, capable of ensuring greater cohesiveness in the organized
international community (the civitas maxima gentium), centered around the human
person as the subject of international law.
Antônio Augusto Cançado-Trindade
Judge
Pablo Saavedra-Alessandri
Secretary
15
.
Without having to resort to the unconvincing and unfounded rhetoric of so-called “humanitarian
intervention.”
16
.
Cf. A.A. Cançado-Trindade, "Reply [- Assistance Humanitaire]", 70 Annuaire de l'Institut de Droit
International – Bruges Meeting (2002-2003) n. 1, pp. 536-540.
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