2
protection obligation extends not only to the relationship between said State and the
persons subject to its jurisdiction but also to —under certain circumstance— to the
relationships among private individuals; this is a true erga omnes obligation of
protection in favor of, in the present case, all persons held in custody in the Mendoza
Prison. As I stated it in that Opinion, as well as in the Concurrent Opinion in the prior
Order of the Court (June 18, 2005) in this present case of the Mendoza Prison, I will
argue again in this Opinion that, at any rate, this is the case of a State’s erga omnes
protection obligation towards all the persons subject to such State’s jurisdiction.
4.
The importance of this obligation increases in the face of permanent violence
and insecurity (a situation on which the debate at the public hearing of March 30,
2006, laid an emphasis), as was the case of the matter of the Mendoza Prison, and
which clearly requires the recognition of the effects of the American Convention visà-vis third parties (the Drittwirkung), without which the conventional obligations of
protection would be reduced to little more than dead letter. As I see it, may I repeat,
the rationale built on the thesis of objective responsibility of the State is ineluctable,
particularly in a case of provisional measures of protection —as is the case here— in
favor of the prisoners in the custody of the State.
5.
This is a situation of extreme gravity and urgency which relates to both
actions taken by public power bodies and agents and the relationships among
individuals within prison facilities. As I had warned in my Concurrent Opinion in the
matter of the Communities of Jiguamiandó and Curbaradó (Order of March 6, 2003),
provisional measures regarding Colombia, there is a pungent need to “recognize the
effects of the American Convention vis-à-vis third parties (the Drittwirkung),” which
is a feature of the erga omnes obligations, as both in that matter and in the present
case—
"the protection of human rights determined by the American Convention, to be effective,
comprises not only the relations between the individuals and the public power, but also
their relations with third parties (…). 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 community, even though the basis
of action is the breach —or the probability or imminence of breach— of individual
rights.” (para. 4).
6.
In this Order, the Court has expressly acknowledged the erga omnes
obligation of protection pursuant to the American Convention, whereby any State
Party must safeguard protected rights in light of the relationships of all the persons
subject to any such State’s jurisdiction, not only vis-à-vis with public power but also
vis-à-vis the acts and conduct of third parties (Considering Clause No. 6). In
addition, the Court has remind us that the general obligations set out in Articles 1(1)
and 2 of the Convention translate in specific duties that take into consideration both
the personal conditions of and the circumstantial situations affecting individuals, as
subjects under both domestic and international law systems (Considering Clause No.
9); and, as I see it, the Court relies on both conventional provisions and rules of
general international law correctly (Considering Clause No. 9). 11
11
.
On this last topic in particular, cf. A.A. Cançado Trindade, "La Convention Américaine relative aux
Droits de l'Homme et le droit international général", in Droit international, droits de l'homme et
juridictions internationales (eds. G. Cohen-Jonathan y J.-F. Flauss), Bruxelles, Bruylant, 2004, pp. 59-71.
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