2
5.
The general obligation to ensure respect comprises application of provisional
measures of protection under the American Convention. In my Concurring Opinion in
the Case of the Haitians and Dominicans of Haitian Origin in the Dominican Republic
(Order 18.08.2000), I emphasized the change that took place both in the rationale
itself and in the object of the provisional measures of protection (originally
transferred, in the course of their history, from civil procedural law to international
public law), with the impact of their application in the framework of International
Human Rights Law (paras. 17 and 23): in the latter’s conceptual universe, the
aforementioned measures safeguard -rather than the effectiveness of the
jurisdictional function- the fundamental rights of the human person, thus taking on a
truly protective rather than precautionary role.
6.
The jurisprudence of the Inter-American Court of Human Rights on the matter
has contributed decisively to this, more than that of any international court to date.
In my Concurring Opinion in the Matter of the Peace Community of San José de
Apartadó (Order 18.06.2002), I pointed out that the State’s obligation to protect is
not restricted to its relations with persons under its jurisdiction but also comprises,
under certain circumstances, relations among private parties; this involves a true
erga omnes obligation of protection, in the instant case in favor of all persons who
work for the 'Globovisión' Television Station in Venezuela, or who are associated with
it, or are in its facilities.
7.
As I argued in that Opinion –and I do so in the instant case too-, we are
ultimately in the presence of an erga omnes obligation of protection by the State
regarding all persons under its jurisdiction, an obligation whose importance is
enhanced by a situation of constant insecurity and threats, as in the instant case of
the ‘Globovisión’ Television Station, and which
“[...] requires clearly the recognition of the effects of the American Convention vis-à-vis
third parties (the Drittwirkung), without which the treaty obligations of protection would
be reduced to little more than 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 such as the
instant one. It is here intended to avoid irreparable harm to the members of a
community [...] in a situation of extreme gravity and urgency, which encompasses
actions [...] of organs and agents of the public forces” (paras. 14-15).
8.
Subsequently, in another case that has both individual and collective
dimensions, in my Concurring Opinion in the Matter of The Communities of
Jiguamiandó and Curbaradó (Order 06.03.2003), also with respect to Colombia, I
insisted on the need for “recognition of the effects of the American Convention vis-àvis third parties (the Drittwirkung)”, -distinctive of the erga omnes obligations,“without which the treaty obligations of protection would be reduced to little more
than dead letter” (paras. 2-3). And I added that, from the circumstances of that
case, -as from those of the instant case- it clearly follows that
“protection of human rights determined by the American Convention, to be
effective, comprises not only the relations between individuals and public authority, 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 collectively protect the members of a whole community10, even though the
basis for action is the breach - or the probability or imminence of breach - of individual
rights” (para. 4).
10
. Suggesting an affinity with the class actions.
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