12
reduced to a mere agent of economic production, to be considered solely in function of such
production or of his capacity to work.
The human being has needs and aspirations which transcend the purely economic
measurement or projection. Already in 1948, half a century ago, the American Declaration
on the Rights and Duties of Man warned in its preamble [fourth par.] that the "spiritual
development is the supreme end of human existence and the highest expression thereof"
(...). In the domain of the International Law of Human Rights, the determination of
reparations ought to bear in mind the integrality of the personality of the victim, and the
impact upon this latter of the violation of her human rights: it ought to start from an
integral and not only patrimonial perspective of her potentialities and capacities.
From all the aforementioned it clearly results that non-pecuniary reparations are
much more important than one might prima facie assume. (...)
(...) The whole chapter of reparations for violations of human rights ought to, in
our view, be reassessed from the perspective of the integrality of the personality of the
victim, bearing in mind her realization as a human being and the restauration of her dignity.
(...)"39.
35.
Within the Inter-American Court, since my Dissenting Opinions in the cases of El
Amparo, concerning Venezuela (Judgment on reparations, of 14.09.1996, and
Resolution on interpretation of sentence, of 16.04.1997) and Caballero Delgado and
Santana versus Colombia (Judgment on reparations, of 29.01.1997), I have constantly
expressed the great importance I attribute, as from the central position of the victims,
to the non-pecuniary reparations (restitutio in integrum, satisfaction, realization of
justice and the struggle against impunity, rehabilitation of the victims). I am not at all
convinced by the "logic" - or rather, the lack of logic - of the homo oeconomicus of our
days, to whom, amidst the new idolatry of the god-market, everything is reduced to
the fixing of compensation in the form of amounts of indemnizations, since in his
outlook human relations themselves have - regrettably - become commercialized.
Definitively, to the integrality of the personality of the victim corresponds an integral
reparation for the damages suffered, which is not at all reduced to the reparations for
material and moral damages (indemnizations).
36.
What is the price of a human life? What is the price of the integrity of the
human person? What is the price of the liberty of conscience, or of the protection of the
honour and of the dignity? What is the price of the human pain or suffering? If the
indemnizations are paid, would the "problem" be "resolved"? What is certain is that all
the rights protected under the American Convention on Human Rights have an
autonomous value and a juridical content of their own, and moreover, are all related
inter se, indivisible as they are. As to the fundamental right to life, I would go even
further: its protection, which requires positive measures on the part of the State, falls
under the domain of jus cogens, as acknowledged by contemporary juridical doctrine40.
39
.
Inter-American Court of Human Rights, case Loayza Tamayo versus Peru (Reparations), Judgment of
27 November 1998, Joint Separate Opinion of Judges A.A. Cançado Trindade and A. Abreu Burelli, pars. 9-11
and 17.
40
.
Cf., on the matter, e.g., W. Paul Gormley, "The Right to Life and the Rule of Non-Derogability:
Peremptory Norms of Jus Cogens", in The Right to Life in International Law (ed. B.G. Ramcharan), Dordrecht,
Nijhoff, 1985, pp. 120-159; Y. Dinstein, "The Erga Omnes Applicability of Human Rights", 30 Archiv des
Völkerrechts (1992) pp. 16-37; International Court of Justice, South West Africa Cases (2nd. phase, Ethiopia
and Liberia versus South Africa), Dissenting Opinion of Judge K. Tanaka, ICJ Reports (1966) p. 298; and cf., in
general, J. G. C. van Aggelen, Le rôle des organisations internationales dans la protection du droit à la vie,
Bruxelles, E. Story-Scientia, 1986, pp. 1-104; D. Prémont and F. Montant (eds.), Actes du Symposium sur le
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