3
reparations, pointed out that she was aware that "the economic indemnization will
not repair the whole damage" suffered7.
12.
The international case-law in the matter of reparations is to be reoriented
and enriched with the approach and contribution proper to the International Law of
Human Rights. Hence the importance which we attribute to the recognition, in the
present Judgment of the Inter-American Court, of the damage to the project of life
of the victim 8, as a first step in this direction and purpose. If there had been no
determination of the occurrence of the damage to the project of life, how could one
achieve the restitutio in integrum as a form of reparation? How could one proceed
to the rehabilitation of the victim as a form of reparation? How could one affirm in a
convincing way the guarantee of non-repetition of the harmful facts in the
framework of reparations?
13.
No answer could be given to those questions without determining the
occurrence of a damage to the project of life and establishing its consequences. We
think that these considerations gain greater importance in a paradigmatic case like
the present one, in which the victim is alive and, therefore, the restitutio in
integrum, as a form par excellence of reparation, is possible.
14.
As the juridical consequences of the violations of the conventional
obligations of protection have not been sufficiently examined or developed in
doctrine, one is to bear always in mind a basic principle of international law in the
matter of reparations: States have the obligation to put an end to those violations
and to remove their consequences 9. Hence the importance of the restitutio in
integrum, particularly apt to that purpose, given the insufficiencies of
indemnizations.
15.
In our understanding, the project of life is ineluctably linked to freedom, as
the right of each person to choose her own destiny. The Court has in this way
correctly conceptualized it in the present Judgment 10, in warning that "it could
hardly be said that a person is truly free if she does not have options to direct her
existence and to bring it into its natural culmination. Those options possess, in
themselves, a high existential value. Accordingly, their cancellation or minimization
7.
Corte Interamericana de Derechos Humanos, Transcripción de la Audiencia Pública
Celebrada en la Sede de la Corte el 09 de Junio de 1998 sobre las Reparaciones en el Caso
Loayza Tamayo, p. 34, and cf. pp. 60-61 (mimeographed, internal circulation).
8.
Paragraphs 143-153.
9.
This principle has received judicial recognition as from the well-known obiter dictum
of the old Permanent Court of International Justice (PCIJ) in the Chorzów Factory case
(Merits); cf. PCIJ, Series A, n. 17, 1928, p. 47. It has also received support in doctrine; cf.,
inter alii, Bin Cheng, General Principles of Law as Applied by International Courts and
Tribunals, Cambridge, University Press, 1994 (reprint), p. 233; J.A. Pastor Ridruejo, La
Jurisprudencia del Tribunal Internacional de La Haya -Sistematización y Comentarios, Madrid,
Ed. Rialp, 1962, p. 429; F.V. García-Amador, The Changing Law of International Claims, vol.
II, N.Y., Oceana Publs., 1984, p. 579; Roberto Ago, "[1973 Report on] State Responsibility",
reproduced in The International Law Commission's Draft Articles on State Responsibility (ed.
S. Rosenne), Dordrecht, Nijhoff, 1991, pp. 51-54. Of the Judgment itself of the PCIJ in the
Chorzów Factory case (cit. supra), it may be inferred that the duty of reparation is the
indispensable complement of non-compliance with a conventional obligation; cf., inter alii, P.
Reuter, "Principes de Droit international public", 103 Recueil des Cours de l'Académie de
Droit International de La Haye (1961) pp. 585-586; R. Wolfrum, "Reparation for
Internationally Wrongful Acts", Encyclopedia of Public International Law (ed. R. Bernhardt),
vol. 10, Amsterdam, North Holland, 1987, pp. 352-353.
10.
The Court has warned in the present Judgment that the damage to the project of life
attempts against personal development itself, by factors alien to the person, and to her
"imposed in an unjust and arbitrary way, with violation of the norms in force and of the trust
which she had deposited on organs of the public power obliged to protect her and to grant
her security for the exercise of her rights and the satisfaction of her legitimate interests"
(paragraph 149).