2
"The rules of international law" to which the Court refers, are, of course, the
principles that regulate the international responsibility of States in general and the
subject of human rights in particular.
The theories of international State responsibility are well known to scholars. These
theories have been evolving since the liability for fault theory of Grotius, in
which the psychological elements peculiar to human beings are attributed to the
State. This theory resulted from the identification of the State with its ruler, which
was in vogue at that time. Then there came the causal liability theory, in which
the acts which generate responsibility must not only be illicit but also attributable to
the State. The risk theory, according to which the relationship of causality
between the illicit act and the act of State would be sufficient to generate State
responsibility is passed over. The codifications of the International Law Commission
do not accept this last thesis. They require imputability as a precondition to the
attribution of international State responsibility.
In endorsing human rights treaties, States have not reached the stage of accepting
that the mere relationship of causality between the act of the State and the
violation of the right protected generates international responsibility. For that
reason, the analysis of the instant case cannot be separated from the content of
these rights and from the duties assumed by the States under Articles 1(1) and 2 of
the Convention, as they have been interpreted by this Court when dealing with the
application of its international jurisdiction.
It is obvious that certain protected rights are closely linked to the act of the State
and cannot be violated except by the State. For example, the promulgation of a law
that conflicts with the duties assumed by the State on accepting the Convention is
an act of State that violates the Convention, since only States can promulgate laws.
But even under this hypothesis, as the Court has already stated, the sole
promulgation of a law does not produce international responsibility, rather it must
be implemented and it must affect "the protected rights and freedoms of specific
individuals." (International Responsibility For the Promulgation and Enforcement of
Laws in Violation of the Convention, cf. para. 58(1).)
The Court has held, in interpreting Article 1(1) of the Convention, that
[w]hat is decisive is whether a violation of the rights recognized by the
Convention has occurred with the support or the acquiescence of the
government, or whether the State has allowed the act to take place without
taking measures to prevent it or to punish those responsible. Thus, the
Court's task is to determine whether the violation is the result of a State's
failure to fulfill its duty to respect and guarantee those rights, as required by
Article 1(1) of the Convention. (Velásquez Rodríguez Case, cf. para. 173 and
Godínez Cruz Case, cf. para. 183). The State, [the Court added] has a legal
duty to take reasonable steps to prevent human rights violations and to use
the means at its disposal to carry out a serious investigation of violations
committed within its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate compensation.
(Ibid. para. 174 and para. 184, respectively.)
The word "reasonable" qualifies the duty of prevention and was explained by the
Court when it stated that, "while the State is obligated to prevent human rights
abuses, the existence of a particular violation does not, in itself, prove the failure to
take preventive measures." (Ibid. para. 175 and para. 185, respectively.) It is not
enough that there be a violation to say that the State failed to prevent it. To
interpret the Convention in this manner obviously goes farther than what the States
accepted on subscribing to it, because it would imply that it is sufficient that the act
of State which violates a protected right be present for the State to have to answer