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both the Inter-American Court and the Institut de Droit International. I have done so, in the
latter, both in my written remarks11 and in the debates. A few days ago, in its debates on
this matter, at its last meeting in Cracow, I stated, in my oral remarks on August 25, 2005
at that Polish city, inter alia 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 interState 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 extra-legal 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).
.
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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