70
162.
While, Article 2 of the Conventions stipulates that:
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already
ensured by legislative or other provisions, the States Parties undertake to adopt, in
accordance with their constitutional processes and the provisions of this Convention, such
legislative or other measures as may be necessary to give effect to those rights or freedoms.
163.
The Court has established that:
Article 1(1) is essential in determining whether a violation of the human rights
recognized by the Convention can be imputed to a State Party. In effect, that article
charges the States Parties with the fundamental duty to respect and guarantee the rights
recognized in the Convention. Any impairment of those rights that can be attributed,
under the rules of international law, to the act or omission of any public authority
constitutes an act imputable to the State and which entails its responsibility as
established in the Convention.
According to Article 1(1), any exercise of public power that violates the rights recognized
by the Convention is illegal. Whenever a State organ or official, or a public entity
violates one of those rights, this constitutes a failure in the duty to respect the rights and
freedoms set forth in the Convention.
This conclusion is independent of whether the organ or official has contravened
provisions of internal law or overstepped the limits of his authority. Under international
law, a State is responsible for the acts of its agents undertaken in their official capacity
and for their omissions, even when those agents act outside the sphere of their authority
or violate internal law160.
164.
With regard to Article 2 of the Convention, the Court has said that:
In international law, customary law establishes that a State which has ratified a human
rights treaty must introduce the necessary modifications to its domestic law to ensure
the proper compliance with the obligations it has assumed. This law is universally
accepted, and is supported by jurisprudence. The American Convention establishes the
general obligation of each State Party to adapt its domestic law to the provisions of this
Convention, in order to guarantee the rights it embodies. This general obligation of the
State Party implies that the measures of domestic law must be effective (the principle of
effet utile). This means that the State must adopt all measures so that the provisions of
the Convention are effectively fulfilled in its domestic legal system, as Article 2 of the
Convention requires. Such measures are only effective when the State adjusts its
actions to the Convention’s rules on protection161.
165.
The Court has also stated that:
[t]he general duty of Article 2 of the American Convention implies the adoption of
measures in two ways. On the one hand, derogation of rules and practices of any kind
that imply the violation of guarantees in the Convention. On the other hand, the
issuance of rules and the development of practices leading to an effective enforcement of
160
Cf. Case of the Mayagna (Sumo) Awas Tingni Community, supra note 2, para. 154; Baena Ricardo
et al. case. Judgment of February 2, 2001. Series C No. 72, para. 178; and Caballero Delgado and Santana
case. Judgment of December 8, 1995. Series C No. 22, para. 56.
161
Cf. “The Last Temptation of Christ” case (Olmedo Bustos et al.), Judgment of February 5, 2001.
Series C No. 73, para. 87; Baena Ricardo et al. case, supra note 160, para. 179; Durand and Ugarte case,
supra note 159, para. 136; and cf. also “a self-evident principle” (principe allant de soi); Exchange of
Greek and Turkish Populations, Advisory Opinion, 1925, P.C.I.J., Series B, No. 10, p. 20.
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