4
appear to me to be ineluctably intertwined. Hence, the breach of Article 2 always
brings about, in my view, the violation likewise of Article 1(1). The violation of
Article 1(1) takes place whenever there is a breach of Article 2. And in cases of
violation of Article 1(1) there is a strong presumption of non-compliance with
Article 2, by virtue, e.g., of insufficiencies or lacunae of the domestic legal order as
to the regulation of the conditions of the exercise of the protected rights. There is,
likewise, no underestimating of the obligation of Article 2, inasmuch as it confers
precision to the immediate and fundamental obligation of Article 1(1), of which it
appears as almost a corollary. The obligation of Article 2 requires the adoption of
the legislation needed to give effect to the conventional norms of protection, filling
in eventual lacunae or insufficiencies in the domestic law, or else the modification of
national legal provisions so as to harmonize them with the conventional norms of
protection.
10.
As those conventional norms bind the States Parties - and not only their
governments, - in addition to the Executive, the Legislative and the Judicial Powers
are also under the obligation to take the necessary measures to give effectiveness
to the American Convention at domestic law level. Non-compliance with the
conventional obligations, as known, engages the international responsibility of the
State, for acts or omissions, either of the Executive Power, or of Legislative, or of
the Judiciary. In sum, the international obligations of protection, which in their wide
scope are incumbent upon all the powers of the State, comprise those which
pertain to each of the protected rights, as well as the additional general obligations
to respect and guarantee these latter, and to harmonize domestic law with the
conventional norms of protection, taken altogether. As I maintained also in my
Dissenting Opinion in the El Amparo case (El Amparo Case, Reparations (Article
63(1) [of the] American Convention on Human Rights), Judgment of 14 September
1996, Series C, n. 28), human rights violations and reparations for damages
resulting therefrom ought to be determined under the American Convention bearing
in mind the specific obligations pertaining to each of the protected rights in
conjunction with the general obligations enshrined in Articles 1(1) and 2 of the
Convention. Recognition of the inseparability of those two general obligations inter
se would constitute a step forward in the evolution of the matter.
11.
The interpretation which I here sustain of the meaning and wide scope of the
general and fundamental duty to respect and to ensure respect of the protected
rights (Article 1(1) of the American Convention) in its relations with the other
general duty to adopt measures of domestic law so as to harmonize it with the
international norms of protection (Article 2), accords perfectly with the provision of
Article 63(1) of the American Convention, on the duty to make reparation for
damages resulting from violations of the protected human rights. Article 63(1)
(mentioned in the Judgment on the merits, of 08 December 1995, in the present
Caballero Delgado and Santana case, paragraph 68) stipulates that
If the Court finds that there has been a violation of a right or freedom protected
by this Convention, the Court shall rule that the injured party be ensured the
enjoyment of his right that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such
right or freedom be remedied and that a fair compensation be paid to the injured
party.6
12.
May I single out three points that appear to me to be of capital importance in
the provision of the above-cited Article 63(1) of the American Convention. Firstly,
6
Emphasis added.