2
5.
In my Concurring Opinion in the Matter of the Peace Community of San José
de Apartadó (Order of June 18, 2002) concerning Colombia, I took the liberty of
suggesting that the State’s obligation erga omnes to protect all persons subject to its
jurisdiction
"(...) requires clearly the recognition of the effects of the American Convention
vis-à-vis third parties (the Drittwirkung), without which the conventional obligations of
protection would be reduced to little more than a dead letter.
The reasoning as from the thesis of the objective responsibility of the State is,
in my view, ineluctable, particularly in a case of provisional measures of protection as
the present. The intention here is to avoid irreparable harm to the members of a
community and to the persons who render services to this latter, in a situation of
extreme gravity and urgency, which encompasses actions, armed and otherwise, of
paramilitary and clandestine groups, along with the actions of organs and agents of the
public forces. (paras. 14-15).
6.
Similarly, in my Concurring Opinion in the Matter of The Communities of
Jiguamiandó and Curbaradó (Order of February 6, 2003), which also involved
Colombia, I took the liberty of once again insisting that the response to acts of
violence committed by armed irregulars of any kind must be recognition of the thirdparty effects of the American Convention “(the Drittwirkung),” – inherent in
obligations erga omnes, - "without which the conventional obligations of protection
would be reduced to little more than a dead letter.” (paras. 2-3). I added that given
the circumstances of that case –and the recent Matter of Pueblo indígena de
Kankuamo (Order for Provisional Measures of Protection of July 5, 2004), which also
concerned Colombia, it is clear that
… the protection of human rights determined by the American Convention Americana, to
be effective, comprises not only the relations between the individuals and the public
power, but also their relations with third parties (clandestine groups, paramilitary, and
other groups of individuals). This reveals the new dimensions of the international
protection of human rights, as well as the great potential of the existing mechanisms of
protection, - such as that of the American Convention, - set in motion in order to protect
collectively the members of a whole community8, even though the basis of action is the
breach - or the probability or imminence of breach - of individual rights. (para. 4).
7.
As I have written on previous occasions9 when the sources (including those
not identified) of the human rights violations are so diverse, as illustrated here by
the succession of members of the Pueblo indígena de Sarayaku alleged to have been
victims in the present case, the juridical development of the obligations erga omnes
of protection becomes all the more important, as do the convergences –at the
normative, interpretational and operative levels- among the International Law of
Human Rights, International Humanitarian Law and International Refugee Law.10
Recognizing the importance of those obligations is essential to addressing the new
needs for protection of the human person, especially in situations of extreme gravity
and urgency such as the one posed in the present Matter of the Pueblo indígena de
Sarayaku.
2
.
Suggesting an affinity with the class actions.
9
.
Cf. my aforementioned Concurring Opinions in the Matter of the Peace Community of San José de
Apartadó (2002, para. 19) and the Matter of The Communities of Jiguamiandó and Curbaradó (2003, para.
5).
10
.
A.A. Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI,
Santiago, Editorial Jurídica de Chile, 2001, Chap. V, pp. 183-265.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents