2
Concurring Opinions, in the cases of the Girls Yean and Bosico v. Dominican Republic
(paras. 15-21, Judgment of September 8, 2005), and the case of Mapiripán Massacre
v. Colombia (paras. 3-5, Judgment of September 15, 2005).
6.
In this sense, the general duties of Articles 1(1) and 2 of the American
Convention, -according to the jurisprudence constante, which admits no regressions, have a broad and autonomous sense, and the determination of their non-fulfillment is
not conditioned by instances of specific separate violations of one right or another
consecrated in the American Convention. Thus, the violation of the general duties of
Articles 1(1) and 2 of the American Convention, rather than being subsumed in
separate violations of specific rights under the Convention, is added to those
violations.
7.
For years I have fought within this Court in the conceptual construction of the
2
erga omnes obligations of protection under the American Convention. In my
Concurring Opinions of Judgments on the merits of January 24, 1998, para. 28, and
on the reparations of January 22, 1999, para. 40, in the case of Blake v. Guatemala, I
had already made a warning with regard to the urging need to promote the doctrinal
and jurisprudential development of the legal system of the erga omnes protection
obligations of the human being rights; also, in my Concurring Opinion in the case of
Las Palmeras (Judgment on the preliminary objections of February 4, 2000) regarding
Colombia, I stated that the correct understanding of the general obligation of
guarantee of the rights consecrated in the American Convention set forth in its Article
1(1) can contribute to the execution of the purpose of the development of the erga
omnes protection obligations (paras. 2 and 6-7).
8.
With regard to that aspect, the Inter-American Court has also enhanced, in its
recent Judgment in the case of the Mapiripán Massacre (of September 15, 2005), the
broad scope of the general duty of guarantee under Article 1(1) of the American
Convention. True to its most lucid jurisprudence, and to an integrating (and not
separating) jurisprudence of the American Convention rules and regulations, the
Inter-American Court, in its judgment on this case of Palamara-Iribarne v. Chile, has
related inter se the violations set forth by the American Convention, the right to
freedom of thought and expression (Article 13), the right to private property (Article
21(1) and (2)), the rights to fair trial (Article 8) and to judicial protection (Article 25),
3
the right to personal freedom (Article 7), also in their relation – each one of them with Articles 1(1) and 2 of the Convention (operative paragraphs 1-5).
9.
However, apart from this, the Court has added to those violations, in operative
paragraphs 6 and 7 of this Judgment, the violation per se of the general duties
respectively consecrated in Article 1(1) (duty to respect and guarantee the respect of
all the rights protected) and in Article 2 (duty to align the domestic legal system with
the rules and regulations of the Convention). This is quite significant, as it recognizes
the autonomous violation of Articles 1(1) and (2) of the Convention, regardless of the
violations of substantive rights in relation with said general duties, under the
circumstances of the cas d'espèce.
2
It is not my purpose here to repeat thoroughly the concepts I have already developed regarding the
matter in the past, particularly in my Concurrent Opinions in the Decisions of Protection Provisional Measures
adopted by the Court in the Matter of the Peace Community of San José de Apartadó regarding Colombia (of
June 18, 2002 and March 15, 2005), Matter of the Communities of Jiguamiandó and Curbaradó (of March
06, 2003 and March 15, 2005), Matter of Pueblo Indígena de Kankuamo (of July 5, 2004), of Pueblo
Indígena de Sarayaku (of July 06, 2004 and June 17, 2005), and Urso Branco Prison (of July 07, 2004), and
Matter of the Mendoza Prisons (of June 18, 2005), - as well as in my Concurring Opinion of the Case of the
“Mapiripán Massacre” (Judgment of September 15, 2005).
3
With the only exception of violation of the right to private property, related only to Article 1(1) (and
not to Article 2) of the Convention.