2
the Inter-American Court of Human Rights quite a wide horizon in the mattter of
reparations5.
6.
Nevertheless, the contents and scope of the measures of reparation in
international law remain surrounded by a certain degree of imprecision, despite the
existence of a secular case-law on the matter. This is due in great part to the fact
that such case-law has developed as from analogies with solutions of private law,
and, in particular, of civil law (droit civil), in the ambit of national legal systems.
7.
Juridical concepts, while encompassing values, are product of their time, and
as such are not unchangeable. The juridical categories crystallized in time and
which came to be utilized - in a context distinct from the ambit of the International
Law of Human Rights - to govern the determination of reparations were strongly
marked by those analogies of private law: such is the case, e.g., of the concepts of
material damage and moral damage, and of the elements of damnum emergens
and lucrum cessans.
8.
Such concepts have been strongly determined by a patrimonial content and
interest, - which is explained by their origin, -marginalizing what is most important
in the human person, namely, her condition of spiritual being. This is disclosed by
the fact that even the moral damage itself is commonly regarded, in the classical
conception, as amounting to the so-called "non patrimonial damage". The point of
reference still keeps on being the patrimony. The pure and simple transposition of
such concepts onto the international level was bound to generate uncertainties. The
criteria of determination of reparations, of an essentially patrimonial content, based
upon analogies with those of civil law (droit civil), have never convinced us, and do
not appear to us entirely adequate or sufficient when transposed into the domain of
the International Law of Human Rights, endowed with a specificity of its own.
9.
In the framework of this latter, reparations ought to be determined on the
basis not only of criteria which rest upon the relationship of the human being with
his goods or his patrimony, or upon his capacity to work, and upon the projection of
those elements in time. Contrary to what the materialist conception of the homo
oeconomicus pretends, a conception regrettably prevailing in our times, we hold the
firm and full belief that the human being is not reduced to a mere agent of
economic production, to be considered solely in function of such production or of his
capacity to work.
10.
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 that
the "spiritual development is the supreme end of human existence and the highest
expression thereof" 6. Those words appear quite timely in this fin de siècle. 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.
11.
From all the aforementioned it clearly results that non-pecuniary reparations
are much more important than one might prima facie assume. In the public hearing
before the Inter-American Court of 09 June 1998, it was Mrs. María Elena Loayza
Tamayo herself who, as the complainant party and as subject of the International
Law of Human Rights, with full international procedural capacity at the phase of
5.
Certainly much wider than that which ensues from the terms of Article 50 of the
European Convention of Human Rights, restrictively interpreted and applied by the European
Court of Human Rights throughout the years and until the recent entry into force of Protocol
n. 11 to the European Convention, on 01 November 1998.
6.
Fourth preambular paragraph (emphasis added).