5
protection they have contracted4. This is the thesis which, if widely accepted in the
present domain of protection, can tighten the links of solidarity between States and
within them, tending to maximize the observance of human rights. Its considerable
potential of application ought to be developed.
18. Thus, there does not appear to me to be any doubt that, both an act or an
omission, on the part of any of the powers of the State - the Legislative Power
making no exception, - may generate the international responsibility of the State for
violations of the human rights conventionally recognized, without any need to seek
for an additional subjective element of fault (culpa), and the qualification of that act
or omission. The responsibility of the State is, in this sense, absolute.
19. It is perfectly possible to enter the domain of the law of the international
responsibility of the State, in order to identify the conceptual bases of the duty of
prevention of human rights violations. More than possible, it may become necessary.
This is so because such violations constitute likewise violations of the obligation of
protection - enshrined in treaties, - imposed by the International Law of Human
Rights, and because the international responsibility of the State for such violations is
governed at a time by the norms of human rights treaties as well as the general
principles of international law.
20. In fact, one cannot exclude the possibility that a given question or aspect may
not be sufficiently or clearly regulated by the provisions of a human rights treaty,
therefore requiring recourse to the general principles of international law in the
process of its interpretation and application. This in no way affects the thesis of the
specificity and autonomy of the International Law of Human Rights 5, given that the
distinct areas of Law appear often in contact with each other (e.g., civil or penal
procedural law and constitutional and administrative law, constitutional law and
international law), with the unity of the juridical solution prevailing in the long run.
21. In my understanding, the international responsibility of the State is engaged as
from the moment it fails to comply with an international obligation, irrespective of
the verification of fault or culpa on its part, and of the occurrence of an additional
damage. Rather than a presumed psychological attitude or fault on the part of the
agents of public power, what is really determining is the objective conduct of the
State (the due diligence to avoid human rights violations). One can, thus, certainly
arrive at the configuration of the objective or "absolute" responsibility of the State as
from the violation of its conventional international obligations as to the protection of
human rights6. On such objective responsibility rests the duty of prevention.
IV.
Objective Responsibility of the States Parties.
4.
It is not surprising that this current of thought is associated with the more recent evolution of
international law, amidst the new realities and circumstances of the contemporary world.
5.
Autonomy which I support and develop in my Tratado de Direito Internacional dos Direitos
Humanos, vol. 1, Porto Alegre/Brasil, S.A. Fabris Ed., 1997, pp. 17-447.
6.
Jules Basdevant, "Règles générales du droit de la paix", 58 Recueil des Cours de l'Académie de
Droit International de La Haye (1936) pp. 670-674; Eduardo Jiménez de Aréchaga, El Derecho
Internacional Contemporáneo, Madrid, Ed. Tecnos, 1980, pp. 319-325, and cf. pp. 328-329.