3
9.
All reparations measures are based on general and objective rules (that exist
independently and apart from any decision reached by the parties to a specific case,
who are the subjects of the litigation and of the proceeding) that are national and
international in nature and applicable to the field of human rights. In other words,
all reparations measures are based on domestic laws or on the provisions of
conventions that establish the duty to respect the rights of persons and the
obligation to make reparation when that duty is violated. That having been said, the
following can and must be distinguished: a) the premise that the parties can arrive
at a settlement as to the content and performance of specific reparations, through an
agreement that postdates the general and objective norm and whose efficacy is
recognized by that general and objective norm; and b) circumstances that
necessarily preclude any settlement between the parties, because the reparations
are dictated by law and are not negotiable.
10.
The agreement between parties, which the Court can approve, is only
admissible and effective when it is legitimate –in the sense indicated in paragraphs 5
and 6 above- and addresses the second category of issues mentioned in the
preceding paragraph, which tend to be property-related and require specific
pecuniary obligations. Therefore, in principle the terms of the agreement that
concern compensation for material and moral damages and procedural costs and
expenses merit consideration –and may even be binding-. The judgment delivered
in the Barrios Altos Case, Reparations, finds that the agreement between the parties
on the matter of compensation is admissible and can be approved, thereby making it
final, with all the effects that follow therefrom.
11.
On the other hand, other reparation measures are beyond the purview of the
parties. They are inherent in certain inalienable and immutable functions that the
State must discharge in exercise of its authorities or in performance of its duties or
obligations. Either party may unilaterally propose –provided the other party so
agrees- practicable and convenient ways or modalities for complying with those
obligations. But no proposal can alter, replace, diminish or supplant the natural and
immutable duties that the legal system assigns to government.
12.
And so, it is not the will of the parties, but rather the law that determines that
the State has: a) a “criminal justice duty” (to investigative the violations, prosecute
those responsible, issue the verdict of condemnation and carry out the sentences
that the law requires); or b) an obligation to adopt the legislative or conventionrelated measures (for example, the conclusion or ratification of an international
treaty) required under the American Convention on Human Rights (Article 2); or c) a
decision to refrain from incurring human rights violations (conduct that is inherent in
a State governed by the rule of law and that is provided for at the highest level of
the domestic and international legal order). Furthermore, some of these measures
are provided for in the judgment delivered on the merits of the present case on
March 14, 2001.
13.
Settlements do not create, modify, much less extinguish rights and duties,
regardless of what the parties to a settlement may agree upon with respect to these
issues. The terms of any agreement between the parties merely underscore the
existence of those rights and duties, or an “awareness of their existence.” Whatever
the case, the points they agree upon expedite settlement of the differences. This is
the function of such agreements, and not an inconsequential one. But their function
is not to be an authoritative document, composed by the parties, that defines or