4
lacunae or insufficiencies in the domestic law, or else the modification of national legal
provisions so as to harmonize them with the conventional norms of protection.
10.
As those conventional norms bind the States Parties - and not only their
governments, - in addition to the Executive, the Legislative and the Judicial Powers are also
under the obligation to take the necessary measures to give effectiveness to the American
Convention at domestic law level. Non-compliance with the conventional obligations, as
known, engages the international responsibility of the State, for acts or omissions, either of
the Executive Power, or of Legislative, or of the Judiciary. In sum, the international
obligations of protection, which in their wide scope are incumbent upon all the powers of the
State, comprise those which pertain to each of the protected rights, as well as the additional
general obligations to respect and guarantee these latter, and to harmonize domestic law
with the conventional norms of protection, taken altogether. As I maintained also in my
Dissenting Opinion in the El Amparo case (El Amparo Case, Reparations (Article 63(1) [of
the] American Convention on Human Rights), Judgment of 14 September 1996, Series C, n.
28), human rights violations and reparations for damages resulting therefrom ought to be
determined under the American Convention bearing in mind the specific obligations
pertaining to each of the protected rights in conjunction with the general obligations
enshrined in Articles 1(1) and 2 of the Convention. Recognition of the inseparability of those
two general obligations inter se would constitute a step forward in the evolution of the
matter.
11.
The interpretation which I here sustain of the meaning and wide scope of the general
and fundamental duty to respect and to ensure respect of the protected rights (Article 1(1)
of the American Convention) in its relations with the other general duty to adopt measures
of domestic law so as to harmonize it with the international norms of protection (Article 2),
accords perfectly with the provision of Article 63(1) of the American Convention, on the
duty to make reparation for damages resulting from violations of the protected human
rights. Article 63(1) (mentioned in the Judgment on the merits, of 08 December 1995, in
the present Caballero Delgado and Santana case, paragraph 68) stipulates that
If the Court finds that there has been a violation of a right or freedom protected by this Convention,
the Court shall rule that the injured party be ensured the enjoyment of his right that was violated. It
shall also rule, if appropriate, that the consequences of the measure or situation that constituted the
breach of such right or freedom be remedied and that a fair compensation be paid to the injured
party.0
12.
May I single out three points that appear to me to be of capital importance in the
provision of the above-cited Article 63(1) of the American Convention. Firstly, unlike the
corresponding Article 50 of the European Convention on Human Rights,0 Article 63(1) of the
American Convention makes no reference to domestic law, thus enabling the Inter-American
Court to proceed to the determination of the measures of reparation on the basis autonomously - of the American Convention itself and of the applicable general principles of
International Law. Secondly, unlike Article 50 of the European Convention, Article 63(1) of
the American Convention does not limit itself to provide for "just satisfaction" (satisfaction
équitable/satisfacción equitativa); the American Convention goes further, to provide both for
6
Emphasis added.
7
Article 50 of the European Convention provides: - "If the [European] Court finds that a decision or a
measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in
conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only
partial reparation to be made for the consequences of this decision or measure to be erased, the decision of the
Court shall, if necessary, afford just satisfaction to the injured party."