21
rule, if appropriate, that the consequences of the measure or situation that
constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party. (underlining added)
57.
Although that provision refers to the attributes of the I/A Court of H.R,
mutatis mutandis, it should be applied by domestic judges because they are also
Inter-American judges when they carry out the "diffused control of conformity
with the Convention.” And that implies ensuring, as far as is possible, the
effective enjoyment of the right or freedom violated. This leads to the
affirmation that, in certain cases, the consequences of unconventional standards
must be repaired, which can only be achieved by "revoking" these national
standards from its conception and not from its nonapplication or declaration of
unconventionality. In other words, such retroactivity is necessary in some cases
to achieve an adequate enjoyment of the relevant right or freedom. This
affirmation, in addition, is consistent with the jurisprudence of the I/A Court of
H.R. in the interpretation of Article 63(1) of the Pact of San Jose, when it has
considered that any violation of an international obligation that has caused
This constitutes “one of the
damage must “appropriately” remedy it; 72
fundamental principles of contemporary international law on State
responsibility.” 73
f) Legal basis of “diffused control of conformity with the Convention”: the
Pact of San Jose and the Vienna Convention on the Law of Treatises
58.
From the beginning of this jurisprudential doctrine of this type of control, in
the Case of Almonacid Arellano v. Chile,74 the following was established:
124.
(…) But when a State has ratified an international treaty such
as the American Convention, its judges, as part of the State, are also bound
by such Convention. This forces them to see that all the effects of the
provisions embodied in the Convention are not adversely affected by the
enforcement of laws which are contrary to its purpose and that have not had
any legal effects since their inception (…)
125.
By the same token, the Court has established that “according to
international law, the obligations that it imposes must be honored in good
faith and domestic laws cannot be invoked to justify their violation.” This
provision is embodied in Article 27 of the Vienna Convention on the Law of
Treaties, 1969. (underlining added).
59.
The principles of international law relating to Good Faith and Effet Utile,
which in turn involves the principle of Pacta Sunt Servanda, make up the
international foundations for national States to comply with international treaties
and have been constantly reiterated by the jurisprudence of the I/A Court of H.R. in
cases brought under its jurisdiction, whether before the advisory body, as in
72
Cf. Case of Velásquez Rodríguez v. Honduras, supra note 5, para. 25; Case of Chitay Nech et
al.. Preliminary Objections, Merits, Reparations and Costs. Judgment of May 25, 2010. Series C No. 212
para. 227; and Case of Manuel Cepeda Vargas. Preliminary Exceptions, Merits and Reparations.
Judgment of May 26, 2010. Series C No. 213, para. 211.
73
Cf. Case of Castillo Páez v. Perú. Reparations and Costs. Judgment of November 27, 1998.
Series C No. 43, para. 43; Case of Chitay Nech et al., supra note 71, para. 227, and Case of Manuel
Cepeda Vargas, supra note 71, para. 211.
74
Supra note 12, para. 125.
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