CONCURRING OPINION OF JUDGE A.A. CANÇADO-TRINDADE
1.
I vote in favor of adoption of the instant Provisional Measures of Protection, in
which the Inter-American Court of Human Rights orders that protection be extended
to all persons working at the `Globovisión' Television Station in Venezuela, or who
are associated with it, or who are in its facilities. The Court also asserts the general
obligation of the State to protect all persons who are under its jurisdiction, "both
with respect to actions by its own agents and regarding actions by private third
parties” (Whereas n. 11); clearly, this is a true erga onmes obligation to provide
protection.
2.
In this regard, I find myself under the obligation to take up once again the
conceptual construction that I have been pursuing, within the Inter-American Court,
precisely regarding the erga omnes obligations to provide protection under the
American Convention. I do not intend to reiterate here, in detail, the points that I
have previously developed regarding this matter, specifically in my Concurring
Opinions in other Orders regarding Provisional Measures of Protection adopted by the
Court,9 but rather to briefly highlight the key points of my reflections on this matter,
with the aim of ensuring the effective protection of human rights in a complex
situation such as that of the instant Matter of “Globovisión” Television Station.
3.
Actually, well before said Orders were issued by the Court, I had already
pointed out the urgent need to foster the development of doctrine and jurisprudence
of the juridical system regarding the erga omnes obligations to provide protection of
the rights of the human person (e.g., in my Separate Opinions in the Judgments on
the merits, 24.01.1998, para. 28, and on reparations, 22.01.1999, para. 40, in the
Case of Blake v. Guatemala). And in my Separate Opinion in the Las Palmeras case
(Judgment on preliminary objections, 04.02.2000), with respect to Colombia, I
argued that the appropriate understanding of the broad scope of the general
obligation to ensure the rights enshrined in the American Convention, set forth in its
Article 1(1), can contribute to realization of the aim of development of the erga
omnes obligations to provide protection (paras. 2 and 6-7).
4.
Said general obligation to ensure respect –I added in my aforementioned
Opinion in the Case of Las Palmeras- applies to each State Party individually and to
all of them together (erga omnes partes obligation - paras. 11-12). Thus,
"there could hardly be better examples of mechanisms for application of the obligations
erga omnes of protection (...) than the methods of supervision foreseen in the human
rights treaties themselves, for the exercise of the collective guarantee of the protected
rights. [...] the mechanisms for application of the obligations erga omnes partes of
protection already exist, and what is urgently needed is to develop their legal regime,
with special attention to the positive obligations and the juridical consequences of the
violations of such obligations” (para. 14).
9
.
In the Matters of the Peace Community of San José de Apartadó (18.06.2002), of The
Communities of Jiguamiandó and Curbaradó (06.03.2003), of the Pueblo indígena de Kankuamo
(05.07.2004), of the Pueblo indígena de Sarayaku (06.07.2004), and of the Urso Branco Prison
(07.07.2004).
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