3
respectively consecrated in Article 1(1) (duty to respect and guarantee the respect of
all the rights protected) and in Article 2 (duty to align the domestic legal system with
the rules and regulations of the Convention). This is quite significant, as it recognizes
the autonomous violation of Articles 1(1) and (2) of the Convention, regardless of the
violations of substantive rights in relation with said general duties, under the
circumstances of the cas d'espèce.
10.
In effect, we do not have to disregard, in this case of Palamara-Iribarne, that
Chile, due to the existence itself – at the time the facts took place- of Law No. 12,297
on the “State Security” of the Code of Military Justice, of the provisions regarding the
crime of contempt of the Criminal Code and the Code of Military Justice- was already
infringing the general duty of alignment of its domestic legal system with the American
Convention (Article 2), taking into account that these rules were patently incompatible
with said treaty, and it did not take positive protection measures (Article 1).
11.
As I expressed in my Dissenting Opinion in the case of El Amparo (Judgment
4
Interpretation, 1997) , with regard to Venezuela,
"A State may (...) have its international responsibility
compromised, in my opinion, by the mere approval and enactment of a
law not in agreement with its international conventional obligations of
protection, or for the lack of alignment of the necessary legislation to
allow the fulfillment of said obligations. The time to give precision to the
scope of legislative obligations of the States Parties in human rights
treaties has come. The tempus commisi delicti is, in my opinion, that of
the approval and enactment of a law which, per se, by its mere existence
and applicability, affects the protected human rights (...), without it
being necessary to wait for the subsequent application of this law,
generating additional damage.
The State under issue must immediately remedy such a situation;
failure to do so may configure a “continued situation” of human rights
violation (...). It is perfectly possible to conceive a “legislative situation”
contrary to the international obligations of a certain State (for instance,
keeping a legislation contrary to the conventional obligations of
protection of human rights, or not adopting the required legislation to
give effect to such obligations within the domestic legal system). In this
case, the tempus commisi delicti would be extended so as to cover the
whole period during which the national laws remained in conflict with the
conventional obligations of protection, thus entailing the additional
obligation to repair the subsequent damage caused by that “continued
situation” during the whole period under analysis” (paras. 22-23).
12.
Also, in my Dissenting Opinion (para. 21) in the case of Caballero Delgado and
5
Santana v. Colombia (Reparations, 1997), in which I stressed the impossible
dissociation between the two general obligations consecrated in the American
Convention, to wit, the obligation to respect and guarantee the protected rights (Article
1(1)) and the obligation to align the domestic legal system with international protection
rules and regulations (Article 2) (paras. 6 and 9). Then, in Case of “The Last
4
IACHR, Decision of April 16, 1997, C Series, No. 46.
5
IACHR, Judgment of January 29, 1997, C Series, No. 31.
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