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the matter. Moreover, the case law of this Court has been that an appropriate,
substantive settlement must not be sacrificed for the sake of procedural formality.
Time periods are a matter of judicial security, but the latter is not breached if the
balance between the legitimate procedural interests of the parties is preserved and if
the parties are not denied their opportunity to defend their positions. It is obvious
that the will of the parties has been clearly articulated and documented in the
Agreement to which I refer, which the Inter-American Commission on Human Rights
subsequently reviewed and endorsed. The order in which the parties articulate their
positions does not affect the nature, admissibility and efficacy of the agreement. It
should, therefore, be endorsed and be accorded the standing it deserves.
6.
The fact that possible judgments of condemnation are foreclosed (supra, 4)
does not mean that the Court has to refrain from any consideration of the merits of
the agreement between the interested parties and confine itself to confirming the
terms thereof. The Court has to exercise the verification function given to it in
Article 56(2) of the Rules of Procedure of September 16, 1996 (which are the
applicable rules in this case). That function is not just to verify procedural issues
and points of law, but the “fairness” of the agreement as well, language that has
been replaced in the Rules of Procedure approved on November 24, 2000, to read
“conforme con la Convención” [in compliance with the Convention]. Therefore, the
provision must be understood to mean that the agreement between the parties is to
be ‘fair’; in other words, it must be a legitimate solution –one in which no one’s
interests are violated or injured- that accords to each party what is rightfully its. In
other words, it must serve the object and purpose of the Convention, which is
respect for human rights and repudiation of any violation of the rights of the victims,
their next of kin or their heirs.
7.
The legitimacy of the agreement under the Convention, as regards the nature
of the entitlements, is the core of the agreement (as it is with the judgment), and is
the concept that underlies the development and approval of other solutions that the
parties themselves have agreed upon in the course of the proceedings conducted
before the Inter-American system for the protection of human rights: for example, a
friendly settlement of the dispute. It is not a question of arriving at just “any”
agreement or “any” settlement; the agreement or settlement has to be fair,
legitimate, and satisfactory from the standpoint of the human rights that it is
intended to preserve. No such agreement or settlement would come about if the
process of negotiating the terms of the settlement was driven or dictated by the
weakness, necessity or ignorance of the victim. The Inter-American Commission
plays an important role here. The Court’s verification authority is intended to serve
the same purpose.
8.
Conciliation -a governing principle in international proceedings involving
human rights violations- logically applies only when the opposing sides can
reasonably settle their differences; it does not apply when, because of the nature of
the issues, that alternative method of settling differences is either improper or
unworkable. Moreover, the nature of the obligations (which include the State’s
reparations-related duties), the sources of those obligations and their natural
manifestations or expressions, are all factors that have to be considered in order to
determine in which cases the parties themselves can –and indeed should- craft their
own settlement, and under what circumstances the parties cannot be forced into an
agreement, as the settlement process presupposes the parties’ ability to determine,
on their own, what best serves their interests.