3
From the Inter-American Court’s perspective, the only definitive aspect is its own
determination of whether the respondent State’s administrative acts and practices, domestic
laws, and decisions of domestic courts are compatible with the American Convention. No one
questions the principle of the subsidiary nature of the international jurisdiction, which relates
specifically to the mechanisms of protection; nor should it be forgotten that, at the substantive
level, in the domain of protection, the norms of the international and domestic legal systems
are in constant interaction, to the benefit of the human beings who are protected.3
Based on the foregoing, I dissent with regard to the said fifteenth operative
paragraph, because the Court should have established the amount of the reparation for
loss of earnings based on its own jurisdiction and not by accepting the criteria of a
domestic court that serves other jurisdictional purposes. The fact that the InterAmerican Court, which has assumed jurisdiction in a case, agrees with a specific
amount is insufficient reason for it to forego determining the amount of a loss of
potential earnings motu propio and in keeping with the norms and practices of
international human rights law, and for it to endorse the decision of a court with
jurisdiction in domestic matters that interprets and applies norms other than the
American Convention on Human Rights. The subsidiary nature lies precisely in the
empowerment of a new international jurisdiction, the inter-American jurisdiction for
the protection of human rights, and not in the adoption of the criteria of another
jurisdiction – the domestic jurisdiction – that ceased to exercise its functions when the
international jurisdiction was empowered. Consequently, the principle of subordination
was not clearly applied by the majority of the judges in the instant case.
Manuel E. Ventura Robles
Judge
Pablo Saavedra Alessandri
Secretary
3
Las Palmeras v. Colombia. Merits. Judgment of December 6, 2001. Series C No. 90. Joint separate opinion
of Judges A.A. Cançado Trindade and M. Pacheco Gómez, paras. 2 to 6.
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