-2-
4.
A situation like this clearly underscores the nature erga omnes of the
Convention obligations to protect the individual. The Court has expressly and wisely
recognized this in its judgment (paras. 117, 123 and 151). It has also determined
the exact moment when the international responsibility of the State arose under the
American Convention:
"(...) under the American Convention, the international responsibility of the States arises
at the time of the violation of the general obligations erga omnes, to respect and ensure
respect for – guarantee – the norms of protection and to ensure the effectiveness of all
the rights established in the Convention in all circumstances and with regard to all
persons, which is embodied in Articles 1(1) and 2 thereof" (para. 111).3
5.
The general obligation of guarantee (Article 1(1)), as well as the general
obligation to adapt domestic laws to the Convention (Article 2) encompass all the
rights protected by the Convention and reveal the nature erga omnes of protection of
the specific obligations to safeguard each of those rights. The general obligation of
guarantee contained in Article 1(1) of the Convention also reveals that human rights
treaties such as the American Convention provide the legal framework for requiring
compliance with obligations erga omnes, as I indicated in my separate opinion in the
Las Palmeras case (judgment on preliminary objections of February 4, 2000), with
regard to Colombia.4
6.
And, as I have long sustained in this Court, it is urgent to promote the
doctrinal and jurisprudential development of the legal regime of the obligations erga
omnes of protection of human rights.5 As I observed in my concurring opinions in the
Court's orders on provisional measures in the Peace Community of San José de
Apartadó v. Colombia (of June 18, 2002) and the Urso Branco Prison v. Brazil (of
July 7, 2004), it is clearly necessary to enforce recognition of the effects of the
American Convention vis-à-vis third parties (Drittwirkung), without which the
Convention obligations of protection would be reduced to little more than the written
word.
7.
Thus, the thesis of the objective international responsibility of the State
subsists in circumstances such as those of the Pueblo Bello Massacre v. Colombia
and, particularly, in these circumstances, when it was the State itself that helped
create the chronic high-risk situation (with the establishment of the so-called
"paramilitary groups"). In my concurring opinion in the Jiguamiandó and the
Curbaradó Communities v. Colombia (order on provisional measures of March 6,
3
.
In my separate opinion in the well-known "The Last Temptation of Christ" (Olmedo Bustos et al.) v.
Chile (merits, judgment of February 5, 2001), I stated that "the international responsibility of a State Party
to a human rights treaty arises from the moment that an internationally wrongful event - whether act or
omission - occurs (tempus commisi delicti), which can be attributed to that State, in violation of the
respective treaty" (para. 40). Likewise, in my dissenting opinion in the El Amparo case (interpretation of
judgment, 1997), while sustaining the thesis of the objective international responsibility of the State, I
maintained my position that the tempus commisi delicti is at the very beginning of a situation of human rights
violation (para. 5).
4
.
Paras. 14, 2 and 6-7 of the said opinion.
5
.
Cf., e.g., my separate opinions in the judgments on merits of January 24, 1998 (para. 28), and on
reparations of January 22, 1999 (para. 40), in Blake v. Guatemala; and cf. A.A. Cançado Trindade, Tratado de
Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 412-420.
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