judges from the Judiciary, and officials from the Public Defenders Service (Ministerio Publico
de la Defensa) and the National Secretariat for Children, Adolescents and the Family, which
had decided to draft a bill that would specifically prohibit the direct award of guardianship
for the purpose of adoption.
128. In addition, the Stated indicated that it considered inadmissible any declaration
suggesting that the facts of the case related to situations of the trafficking or sale of
children, owing to the inexistence of evidence to prove this in the case. Nevertheless, it
affirmed that the State was “directly aligned with the international trend that criminalizes
such acts [by promoting] legislative measures to combat them.” Furthermore, it observed
that there was some confusion concerning the sale, appropriation and trafficking of children.
Thus, it mentioned that, under Argentine law, the illegal trafficking of persons is a migratory
crime, while some governmental and non-governmental organizations “use the concept of
child-trafficking when referring to the sale of children, as in the case of the events that gave
rise to the representatives’ claim, and that, in no way, had the State […] acknowledged that
this occurs systematically in [Argentina].”
ii) Considerations of the Court
129. The Inter-American Court considered it desirable to clarify that although there are
diverse and important indications, even pointed out by the domestic authorities (infra paras.
132 to 134), that support the possibility that M was surrendered by her mother in exchange
for money, they are not sufficient for this Court to reach a conclusion in this regard. The
absence of a criminal investigation played a fundamental role in the failure to determine
what happened with the child.
130. This Court has stated on other occasions that “[u]nder international customary law, a
customary norm stipulates that a State that has acceded to an international convention
must introduce into its domestic law the necessary modifications to ensure the execution of
the obligations it has assumed.” In the American Convention, this principle is contained in
its Article 2, which establishes the general obligation of each State Party to adapt its
internal law to the provisions of the Convention in order to guarantee the rights that it
recognizes.97
131. The Inter-American Court has interpreted that the adaptation of domestic law to the
parameters of the Convention entails the adoption of two types of measures, namely: (a)
the elimination of the norms and practices of any nature that entail a violation of the
guarantees established in the Convention or that disregard the rights recognized therein or
impede their exercise, and (b) the enactment of laws and the implementation of practices
leading to the effective observance of the said guarantees. The former is satisfied with the
reform, repeal or annulment of the laws or practices that have those effects, as appropriate.
The latter obliges the State to prevent the recurrence of human rights violations and, to this
end, it must adopt all the necessary legal, administrative and other measure to avoid similar
facts occurring in the future.98 At times the obligation to adopt provisions of domestic law
has entailed the obligation of the State to criminalize certain conducts.99
97
Cf. Case of Garrido and Baigorria v. Argentina. Reparations and costs. Judgment of August 28, 1998.
Series C No. 39, para. 68, and Case of Heliodoro Portugal v. Panama. Preliminary objections, merits, reparations
and costs. Judgment of August 12, 2008. Series C No. 186, para. 179.
98
Cf. Case of Salvador Chiriboga v. Ecuador, supra note 87, para. 122, and Case of Fontevecchia and
D’Amico v. Argentina. Merits, reparations and costs. Judgment of November 29, 2011. Series C No. 238, para. 85.
99
Cf., for example, in relation to the forced disappearance of persons, Case of Heliodoro Portugal v. Panama
supra note 97, para. 185, and Case of Anzualdo Castro v. Peru. Preliminary objection, merits, reparations and
costs. Judgment of September 22, 2009. Series C No. 202, paras. 66 and 165.
37
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