26
D.
The State’s obligation to adopt domestic legal provisions in favor of Oscar
Alberto Mohamed
102.
Article 2 of the American Convention states:
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already
ensured by legislative or other provisions, the States Parties undertake to adopt, in
accordance with their constitutional processes and the provisions of this Convention,
such legislative or other measures as may be necessary to give effect to those rights or
freedoms.
103. The Inter-American Court has stated that under the law of nations, a customary
law prescribes that a State that has signed an international agreement must introduce into its
domestic laws whatever changes are needed to ensure execution of the obligations it has
undertaken. This principle is universally valid and has been characterized in case law as an
evident principle.66
104. The Court has also said that this principle, reflected in Article 2 of the
Convention, sets forth the general duty of each State Party to adjust its domestic law to the
provisions of the Convention to guarantee the rights enshrined therein,67 which implies that the
domestic legal measures must be effective (effet utile principle).68
105. As repeatedly established in the Court’s jurisprudence, Article 2 of the
Convention fails to define which measures are appropriate to adjust the domestic law to the
Convention; obviously, this is so because it depends on the nature of the rule requiring
adjustments and on the circumstances of each specific situation. Therefore, the Court has
interpreted that such adjustment implies adopting two sets of measures: (i) repealing rules and
practices of any nature entailing violations of the guarantees provided for in the Convention or
disregarding the rights enshrined therein or impeding the exercise of such rights, and (ii) adopting
rules and developing practices aimed at effectively ensuring the said guarantees.69 The Court
has taken the view that the first set of duties is breached while the rule or practice running
counter
to
the
Convention
remains
in
the
legal system70 and is therefore satisfied by modifying,71 derogating, or otherwise annulling,72
or amending73 such rules or practices, as appropriate.74
66 I/A Court H. R., Case of Zambrano Vélez et al. Judgment of July 4, 2004. Series C No. 166, para. 55;
Case of Garrido and Baigorria. Reparations (Art. 63.1 American Convention on Human Rights). Judgment of August 27,
1998. Series C No. 39, para. 68. See also Case of La Cantuta. Judgment of November 29, 2006. Series C No. 162,
para. 170, and Case of Almonacid Arellano et al. Judgment of September 26, 2006. Series C No. 154, para. 117.
067 I/A Court H. R., Case of Zambrano Vélez et al. Judgment of July 4, 2004. Series C No. 166, para.
56; Case of La Cantuta. Judgment of November 29, 2006. Series C No. 162, para. 171; and Case of Almonacid
Arellano et al. Judgment of September 26, 2006. Series C No. 154, para. 117.
68 I/A Court H. R., Case of Zambrano Vélez et al. Judgment of July 4, 2004. Series C No. 166, para. 57;
Case of La Cantuta. Judgment of November 29, 2006. Series C No. 162, para. 171; and Case of the “Juvenile
Reeducation Institute.” Judgment of September 2, 2004. Series C No. 112, para. 205.
69 I/A Court H. R., Case of Zambrano Vélez et al. Judgment of July 4, 2004. Series C No. 166, para.57;
Case of La Cantuta. Judgment of November 29, 2006. Series C No. 162, para. 172, and Case of Almonacid Arellano et
al. Judgment of September 26, 2006. Series C No. 154, para. 118.
70 I/A Court H. R., Case of Zambrano Vélez et al. Judgment of July 4, 2004. Series C No. 166, para. 57;
Case of “The Last Temptation of Christ” (Olmedo Bustos et al.). Judgment of February 5, 2001. Series C No. 73, para.
172.
71 I/A Court H. R., Case of Zambrano Vélez et al. Judgment of July 4, 2004. Series C No. 166, para. 57;