6
of the present case of "The Last Temptation of Christ" contribute, in my view decisively,
to dissipate such doubt. From the facts in this case of "The Last Temptation of Christ" it
is rather inferred that, in circumstances such as those of the cas d'espèce, the attempt
to distinguish between the existence and the effective application of a norm of
domestic law, for the purpose of determining the configuration or otherwise of the
international responsibility of the State, becomes irrelevant, and discloses an extremely
formalist outlook of Law, devoid of any sense.
15.
In fact, in the present case of "The Last Temptation of Christ", new elements
have been introduced which require a more detailed examination of the question at
issue. In its brief of 17.08.1999, the respondent State argued that it was not possible
for its international responsibility to be engaged in the concrete case by one sole
sentence of the Judiciary, without compliance with "other requisites"; according to that
brief, in the view of the State, it did not suffice for a judicial decision to be considered
contrary to international law, as it became necessary that such decision were
"endorsed by the support or at least the inactivity of the legislative or executive
organs". In other words, according to the State, there should be a concurrence of all
powers of the State, in a same sense, for its international responsibility to be engaged.
16.
Nevertheless, there is a vast and long international case-law clearly oriented a
contrario sensu, sustaining that the origin of the international responsibility of the
State can lie in any act or omission of any of the powers or agents of the State (be it of
the Executive, or of the Legislative, or of the Judiciary)14. If it were necessary to seek
support for the assertion of the existence of legislative obligations in earlier
international case-law, therein we would, anyway, find it, e.g., as from the locus
classicus on the matter, in the Judgment on the case concerning Certain German
Interests in Polish Upper Silesia (Germany versus Poland, 1926), and in the Advisory
Opinion on German Settlers in Poland (1923), both of the old Permanent Court de
International Justice (PCIJ)15. To resort to classic international case-law on the matter,
however, does not seem strictly necessary to me, as I have already pointed out on
another occasion16: given the specificity of the International Law of Human Rights, the
pronouncements, on the matter, on the part of distinct organs of international
supervision of human rights, appear to me more than sufficient to affirm the existence
of legislative obligations - besides the judicial, as well as the ejecutive ones - of the
States Parties to human rights treaties like the American Convention17.
14
.
Cf., e.g., the digest of case-law in United Nations, Yearbook of the International Law Commission
(1969)-II, especially pp. 105-106.
15
.
In the exercise of its contentious as well as advisory jurisdiction, the PCIJ pronounced clearly on the
matter: in the Judgment above-mentioned, it asserted that national laws are facts which express the will and
constitute the activities of the States, in the same way as the judicial decisions or the administrative
measures, and concluded that the Polish legislation at issue was contrary to the German-Polish Convention
which protected the German interests in question; and in the Advisory Opinion referred to, it sustained that
the Polish legislative measures at issue were not in conformity with the international obligations of Poland.
Cit. in United Nations, Yearbook of the International Law Commission (1964)-II, p. 138.
16
.
In my aforementioned Dissenting Opinion in the case Caballero Delgado and Santana versus
Colombia (Reparations, 1997), par. 21, n. 24.
17
.
Besides the case-law to this effect already quoted in my aforementioned Opinions (e.g., the
judgments of the European Court of Human Rights in the cases Klass and Others (1978), Marckx (1979),
Johnston and Others (1986), Dudgeon (1981), Silver and Others (1983), De Jong, Baljet and van den
Brink (1984), Malone (1984), Norris (1988), as well as the Views of the Human Rights Committee - under
the Covenant on Civil and Political Rights of the United Nations - in the cases Aumeeruddy-Cziffra and
Others (1981), and of the Handicapped Italians (1984)), - I could add, as an additional illustration, other
decisions. Thus, e.g., in its Views (of 31.03.1993) in the case J. Ballantyne, E. Davidson and G. McIntyre
versus Canada (communications 359/1989 y 385/1989), the Human Rights Committee urged the State