3
The State at issue ought to remedy promptly such situation,
since failure to do so could can constitute a `continuing situation' in
violation of human rights (denounced in a concrete case). It is perfectly
possible to conceive of a `legislative situation' contrary to the
international obligations of a given State (e.g., maintaining a legislation
in conflict with the conventional obligations of protection of human
rights, or failing to adopt the legislation required to give effect to such
obligations in the domestic law). In this case, the tempus commisi delicti
would extend so as to cover the whole period in which the national laws
remained in conflict with the conventional international obligations of
protection, entailing the additional obligation of reparation for the
successive damages resulting from such "continuing situation" during
the whole period at issue" (pars. 22-23).
The facts in the present case of "The Last Temptation of Christ" disclose, in my view,
that these considerations are valid for all norms of domestic law (comprising the norms
of both infraconstitutional as well as constitutional levels).
6.
Further on, in another Dissenting Opinion, in the case of Genie Lacayo versus
Nicaragua (Revision of Sentence, 1997)4, I observed that "the notion of `continuing
situation', - nowadays supported by a vast case-law in the domain of the International
Law of Human Rights, - comprises violations of human rights which, e.g., cannot be
divorced from the legislation from which they result (and which remains in force). (...)
Such continuing situation may arise, for instance, from the persistence, either of
national laws incompatible with the Convention, or of a jurisprudence constante of
national tribunals clearly adverse to the victim" (pars. 9 and 27).
7.
Accordingly, - I added, - in my understanding, the existence itself of a norm of
domestic law "entitles the victims of violations of the rights protected by the American
Convention to require its compatibilization with the provisions of the Convention, (...)
without having to wait for the occurrence of an additional damage by the continued
application" of such law (par. 10)5. I sustained the same position, likewise, in my
Dissenting Opinion (par. 21) in the case of Caballero Delgado and Santana versus
Colombia (Reparations, 1997)6, in which I pointed out the indissociability between the
two general obligations set forth in the American Convention, namely, that of
respecting and of ensuring respect for the protected rights (Article 1.1) and that of
harmonizing the domestic law with the international norms of protection (Article 2)
(pars. 6 and 9).
8.
Such general obligations undoubtedly require from the States Parties the
adoption of legislative and other measures to guarantee the rights set forth in the
Convention and to improve the conditions of their exercise (par. 3). Such obligations,
in their wide scope, are incumbent upon all the powers of the State, which are "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
4
.
IACtHR, Resolution of 13.09.1997, Series C, n. 45.
5
.
In this respect, I saw it fit to warn that "while a clear understanding of the wide scope of the
conventional obligations of protection does not prevail in all the States Parties to the American Convention, a clear understanding that the international responsibility of a State may be engaged by any act, or
omission, of any of its powers (Executive, Legislative or Judicial), - very little progress will be achieved in the
international protection of human rights in our continent" (par. 24).
6
.
IACtHR, Judgment of 29.01.1997, Series C, n. 31.