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