3
7.
One decade after that consideration by the Court, the time has come to
retake and examine the matter more deeply. The general and fundamental duty of
Article 1(1) of the American Convention on Human Rights is paralleled in other
treaties on the rights of the human person, such as the Covenant on Civil and
Political Rights (Article 2(1)), the Convention on the Rights of the Child (Articles
2(1) and 38(1)), the four Geneva Conventions of 1949 on International
Humanitarian Law (Article 1) and the Additional Protocol I of 1977 to these latter
(Article 1(1)). In its turn, the general duty of Article 2 of the American Convention
on Human Rights also has equivalents, in its Additional Protocol of 1988 on
Economic, Social and Cultural Rights (Article 2), in the Covenant on Civil and
Political Rights (Article 2(2))4, in the African Charter on Human and Peoples' Rights
(Article 1), and in the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Article 2(1)).
8.
In fact, those two general obligations, - which are added to the other specific
conventional obligations concerning each of the protected rights, - are incumbent
upon the States Parties by the application of International Law itself, of a general
principle (pacta sunt servanda) whose source is metajuridical, in seeking to be
based, beyond the individual consent of each State, on considerations concerning
the binding character of the duties derived from international treaties. In the
present domain of protection, the States Parties have the general obligation, arising
from a general principle of International Law, to take all measures of domestic law
to guarantee the effective protection (effet utile) of the recognized rights.5
9.
The two general obligations enshrined in the American Convention - that of
respecting and guaranteeing the protected rights (Article 1(1)) and that of
harmonizing domestic law with the international norms of protection (Article 2) 4
Provision which served as source of Article 2 of the American Convention on Human
Rights, which was only included in this latter at an already late stage of its preparatory work.
Cf. OAS, International Specialized Conference on Human Rights - Proceedings and
Documents (San José of Costa Rica, 07-22 July 1969), doc. OEA/Ser.K/XVI/1.2, pp. 38, 104,
146, 148, 295, 309, 440 and 481.
5
One may recall, for instance, that under the Covenant on Civil and Political Rights, in
the J. D. Herrera Rubio case, the Human Rights Committee, in its Views of 02 November
1987, concluded that the respondent State (Colombia) had not taken the measures needed
to prevent the disappearance and death of the parents of the author of the communication,
and to undertake adequate investigations, and that it accordingly had the duty, under Article
2 of the Covenant, to adopt effective measures of reparations, and to proceed with the
investigations, and to take measures to ensure that similar violations did not occur in future.
Cf. International Covenant on Civil and Political Rights, Selected Decisions of the Human
Rights Committee under the Optional Protocol, vol. II, 1990, pp. 194-195. - In another case,
that of O.R., M.M. and M.S. versus Argentina, the U.N. Committee against Torture (under the
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment), in its decision of 23 November 1989, in spite of declaring the
communications (ns. 1/1988, 2/1988 and 3/1988) inadmissible ratione temporis (inasmuch
as the Convention could not apply retroactively), expressed nevertheless its view that the
national laws at issue ("Ley de Punto Final" and "Ley de Obediencia Debida", this latter
enacted after the respondent State had ratified the aforementioned Convention and only 18
days before that Convention entered into force) were "incompatible with the spirit and
purpose" of the United Nations Convention against Torture. The Committee observed that,
although its competence was limited to violations of that Convention, it could not fail to
indicate that, "even before the entry into force of the Convention against Torture, there was
a general rule of international law that obliged all States to take effective measures to
prevent torture and to punish acts of torture." Lastly, the Committee urged the State Party
at issue to adopt "appropriate measures" of reparation. Cf. U.N., Report of the Committee
against Torture, G.A.O.R. - XLV Session, 1990, pp. 111-112.