6
set forth in Article 1(1) of the Convention also provides the basis for the development of the
erga omnes partes system of obligations under the American Convention, including the
juridical consequences of non-fulfillment of said obligations by the respondent States.
18.
Within this Court I have been endeavoring, for years, to conceptually construct the
erga omnes protection obligations under the American Convention. I do not intend to
reiterate here my previous reflections on this matter, especially in my Separate Concurring
Opinions in the Judgments on Provisional Protection Measures issued by the Court in the
cases of the Peace Community of San José de Apartadó (of 18.06.2002 and 15.03.2005), of
the Communities of the Jiguamiandó and the Curbaradó (of 06.03.2003 and 15.03.2005), of
the Kankuamo Indigenous People (of 05.07.2004), of the Sarayaku Indigenous People (of
06.07.2004 and 17.06.2005), and of the Urso Branco Prison (of 07.07.2004), and of the
Mendoza Penitentiaries (of 18.06.2005), but rather to highlight the key points of my
reflections on this matter, with the aim of ensuring effective protection of human rights in a
complex situation such as that of the instant case of the Mapiripán Massacre.
19.
Actually, well before the latter cases were brought before this Court, I had already
pointed out the urgent need to foster the development of doctrine and jurisprudence
regarding the juridical system of erga omnes protection obligations regarding the rights of
the human person (e.g. in my Separate Opinions in the Judgments on the merits, of
24.01.1998, para. 28, and on reparations, of 22.01.1999, para. 40, in the Blake versus
Guatemala case). And in my Separate Opinion in the Las Palmeras case (Judgment on
preliminary objections, of 04.02.2000), with regard to Colombia, I reflected that an
appropriate understanding of the broad scope of the general obligation to guarantee the
rights enshrined in the American Convention, set forth in its Article 1(1), can contribute to
realization of the purpose of development of the erga omnes protection obligations (paras. 2
and 6-7).
20.
Said general obligation to guarantee rights –I added in the aforementioned Opinion
in the Las Palmeras case – binds each State Party individually and all of them jointly (erga
omnes partes obligation- paras. 11-12). Thus,
"there could hardly be better examples of mechanisms for application
of the erga omnes obligations of protection (…) than the methods of
supervision foreseen in the human rights treaties themselves, for the exercise
of the collective guarantee of the protected rights. (…) the mechanisms for
application of the erga omnes partes obligations of protection already exist,
and what is urgently needed is to develop their legal regime, with special
attention to the positive obligations and the juridical consequences of the
violations of such obligations. " (para. 14).
21.
In my Concurring Opinion in the case of the Peace Community of San José de
Apartadó (Order of 18.06.2002), with regard to Colombia, I pointed out that the obligation
of the State to provide protection applies not only to its relations with the persons under its
jurisdiction, but also, in certain circumstances, to relations among private individuals; it is a
true erga omnes obligation of protection by the State regarding all persons under its
jurisdiction, an obligation that becomes more important in a situation of constant violence
and insecurity such as that of the instant case of the Mapiripán Massacre, and that
"(...) it clearly requires recognition of the effects of the American
Convention vis-à-vis third parties (the Drittwirkung), without which the treaty
obligations to provide protection would become little more than dead letter.