CONCURRING OPINION OF JUDGE EDUARDO VIO GROSSI I concur with the judgment on preliminary objections, merits, reparations and costs in the case of Cepeda Vargas v. Colombia, handed down today by the Inter-American Court of Human Rights. Nevertheless, I find it necessary to make the following observations concerning the compensation for loss of earnings established therein: 1. Under the inter-American system for the protection of human rights, compensation is ordered solely and exclusively if it is “appropriate” and, if this is so, the Inter-American Court will establish the payment of the compensation it considers “fair.” 1 2. Consequently, in order to decide whether the said compensation is appropriate, the Court must inevitably verify whether the State responsible for the human rights violations in question has already paid it and, if so, assess its fairness, based on the principle of subsidiarity or complementarity that underlies the said system as a whole. 2 3. The harmonious application of the concepts of fairness and subsidiarity or complementarity is expressed, in this case, by the fact that, under general international law, compensation is appropriate if the State responsible for the internationally wrongful act in question does not make reparation 3 by means of restitution, 4 or fails to do so appropriately. 5 1 Article 63(1) of the American Convention on Human Rights: “If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also 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. (Emphasis added by the author) 2 Preamble, paragraph 3, of the American Convention on Human Rights: “Recognizing that the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states;” (Emphasis added by the author) And see, inter alia, Perozo et al. v. Venezuela, Preliminary objections, merits, reparations and costs. Judgment of January 28, 2009. Series C No. 195, paras. 42 and 64. 3 Article 31 of the draft articles on Responsibility of States for Internationally Wrongful Acts, prepared by the United Nations International Law Commission: “Reparation 1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.” 4 Article 35 of the draft articles on Responsibility of States for Internationally Wrongful Acts prepared by the United Nations International Law Commission: “Restitution A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. (Emphasis added by the author) 5 Article 36 of the draft Articles on State Responsibility for an internationally illegal act prepared by the United Nations International Law Commission: