4
comply with them that it assumed freely and of its sovereign will.11 Consequently, the
said mechanism cannot divest the final judgment of its intrinsic value as “final and not
subject to appeal,”12 or affect the dignity of the Court’s function.
Furthermore, in particular, prolonging the regulatory mechanism of monitoring
compliance with judgment without informing the OAS General Assembly about the failure
to comply with it, as has occurred in this case, cannot be justified given that the Court
has many cases of this kind still open, so that, providing this information in one of them,
would oblige it to do so also in most of the others, which could give rise to a major
political problem in the inter-American system as well as implying recognition of the
inefficiency of the human rights judicial system.
And that circumstance cannot be used as a justification in this matter, because it is
political in nature (a domain that is prohibited to the Court), rather than juridical, which
is the only domain that pertains to it.
IV. Responsibilities.
But, furthermore, it is not appropriate to invoke that circumstance, because, this would
suppose that the issue of compliance with judgments is a matter that is the exclusive
responsibility of the Court and not of the States; in other words, that the inefficiency of
the human rights judicial system in this regard would be a matter that the Court should
resolve rather than the States.
In other words, the provisions of Articles 65 of the Convention and 30 of the Court’s
Statute have the precise objective that the OAS General Assembly, namely, the States,
should be officially informed of and, consequently, assume the problem of noncompliance, in some cases, with the judgments of the Court, and adopt, if they deem
pertinent, the corresponding measures. Moreover, it is the States, of their sovereign will,
that have assumed the obligation established in Article 68(1) of the Convention. Thus,
the problem is their responsibility and it corresponds to them to resolve it. This is the
system established in the Convention and, therefore, the Court should not prevent its
normal functioning, but rather permit it to operate effectively. Consequently, the
appropriate course is to allow the institutional framework provided for in the Convention
to operate as it was established.
Similarly, the fact that the Court has already established a consistent and unvarying
precedent in this regard would not be admissible, in order to justify failing to inform the
OAS General Assembly in cases such as this of non-compliance with the judgment.
Furthermore, as it has stated on other occasions,13 not only is the Court unable to modify
the provisions of the Convention, but its case law does not create law,14 and is only
11
Art. 26 idem: “Pacta sunt servanda".
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
12
Art. 67 of the Convention.
13
Dissenting opinion of Judge Eduardo Vio Grossi with regard to the judgment of the Inter-American Court of Human
Rights on merits, reparations and costs. Case of Barbani Duarte et al. v. Uruguay, of October 12, 2011, III. General
considerations.
14
Art. 38.1.d. of the Statute of the International Court of Justice: “1.The Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shall apply: …d. subject to the provisions of Article 59, judicial