4
known, engages the international responsibility of the State, for acts or omissions,
either of the Executive Power, or of Legislative, or of the Judiciary" (par. 10). And I
pointed out:
"In fact, those two general obligations, - which are added to the other specific
conventional obligations concerning each of the protected rights, - are incumbent upon the
States Parties by the application of International Law itself, of a general principle (pacta
sunt servanda) whose source is metajuridical, in seeking to be based, beyond the
individual consent of each State, on considerations concerning the binding character of the
duties derived from international treaties. In the present domain of protection, the States
Parties have the general obligation, arising from a general principle of International Law, to
take all measures of domestic law to guarantee the effective protection (effet utile) of the
recognized rights" (par. 8).
9.
Seeking to stress the importance of the adoption of such positive measures on
the part of the States, I pondered that they can bring about changes in the domestic
law which trascend the particular circumstances of the concrete cases; "examples of
cases", - I added, - "in which national laws were in fact modified, in accordance with
the decisions of the international human rights supervisory organs in individual cases,
abound in international practice. The efficacy of human rights treaties is measured, to
a large extent, by their impact upon the domestic law of the States Parties" (par. 5).
10.
Nevertheless, at this beginning of the XXIst century, the circumstances of the
present case of "The Last Temptation of Christ" seem to indicate that the advances in
this respect are slow. In the last century, already in 1937, a distinguished scholar of
human rights pondered that the day when the historical evolution were to enter into
"an era of conscious consolidation of international law", States will not only adopt this
latter as an "integral part of their Constitution", but will also no longer adopt laws that
obstruct international law forming an "integral part of its system" of domestic law7.
Nowadays, in the year 2001, it may be said, in the light, e.g., of the present case, that
we have not yet succeeded to achieve this degree of development of the domestic law
of the States Parties to human rights treaties. One ought, thus, to keep on insisting on
their legislative and judicial obligations, besides the executive ones8.
11.
It would not be exact to deny all progress in this domain either. There have
been advances, but we remain regrettably far from fulfilling the ideal of the full
compatibilization of the domestic legal order with the norms of the international
protection of human rights. One of the advances is found in the more recently case-law
7
.
Hersch Lauterpacht, "Règles générales du droit de la paix", 62 Recueil des Cours de l'Académie de
Droit International de La Haye (1937) pp. 145-146; text reproduced subsequently, in English, in
International Law Being the Collected Papers of Hersch Lauterpacht, vol. I, Cambridge, University Press,
1970, p. 229.
8
.
Cf., in this respect, e.g., Hildebrando Accioly, Tratado de Direito Internacional Público, 2nd. ed., vol.
I, Rio de Janeiro, Ed. MRE, 1956, pp. 280-310; H. Dipla, La responsabilité de l'État pour violation des droits
de l'homme - Problèmes d'imputation, Paris, Pédone, 1994, pp. 17-32. César Sepúlveda, for example, was
quite clear in admitting "the responsibility of a State for the promulgation of laws contrary to this
[internacional] legal order, and more clearly, of those which result in contraposition to a treaty"; and he
added that "responsibility is also deduced for a member of the international community if it does not adopt a
law that it had committed itself by a treaty to adopt, or to promulgate it in accordance with international law.
Likewise, responsibility may ensue when it does not no act to derogate a law which is incompatible with the
international obligations contracted by the State"; C. Sepúlveda, Derecho Internacional, 13th. ed., Mexico,
Ed. Porrúa, 1983, pp. 237-238.