98
Arguments of the State
217. Regarding the violation of Article 2 of the American Convention, the State
argued that:
a)
the Peruvian State “is in the midst of a transition process, which
includes adapting its domestic legislation to the international standards
established in the Convention and in the Court’s case law; this process must
be carried out over a reasonable period of time in order to continue with the
regular procedures of a democratic State”;
b)
Compliance with the obligation to adapt domestic law to the
Convention, cannot be “instantaneous,” but involves complying “in
accordance with constitutional procedures”; and
c)
The State’s conduct after November 2000 corresponds “to a genuine
intention to comply fully with its international human rights obligations.”
Considerations of the Court
218.
Article 2 of the Convention provides 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.
219. The Court affirms, as it has on other occasions, that the general obligation,
established in Article 2 of the American Convention entails the adoption of two types
of measure:
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 effective enforcement of the said guarantees.268
220. In international public law, a universally accepted customary law establishes
that a State, which has ratified a human rights treaty, must introduce the necessary
modifications into its domestic law to ensure proper compliance with the obligations
it has assumed.269 The American Convention establishes the general obligation of
each State Party to adapt its domestic law to the provisions of the Convention, in
order to guarantee the rights it embodies.270 This general obligation of the State
Party implies that the measures of domestic law must be effective (the principle of
effet utile).271 This means that the State must adopt all measures to ensure that the
268
Cf. Case of the “Juvenile Reeducation Institute”, supra note 3, para. 206; Case of the “Five
Pensioners”. Judgment of February 28, 2003. Series C No. 98, para. 165; and Case of Baena Ricardo et
al., supra note 216, para. 180.
269
Cf. Case of the “Juvenile Reeducation Institute”, supra note 3, para. 205; Case of Bulacio, supra
note 217, para. 140; and Case of the “Five Pensioners”, supra note 268, para. 164.
270
Cf. Case of the “Juvenile Reeducation Institute”, supra note 3, para. 205; Case of Bulacio, supra
note 217, para. 142; and Case of the “Five Pensioners”, supra note 268, para. 164.
271
Cf. Case of the “Juvenile Reeducation Institute”, supra note 3, para. 205; Case of Bulacio, supra
note 217, para. 142; and Case of the “Five Pensioners”, supra note 268, para. 164.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents