16
68.
Under the law of nations, a customary law prescribes that a State that has
concluded an international agreement must introduce into its domestic laws
whatever changes are needed to ensure execution of the obligations it has
undertaken. This principle is universally valid and has been characterized in case law
as an evident principle ("principe allant de soi"; Exchange of Greek and Turkish
populations, Advisory Opinion, 1925, PCIJ, Series B No. 10, p. 20). Accordingly, the
American Convention stipulates that every State Party is to adapt its domestic laws
to the provisions of that Convention, so as to guarantee the rights embodied therein.
69.
This obligation of the State Party implies that the domestic legal measures
must be effective. This means the State must adopt all measures necessary so that
provisions contained in the Convention have full force and effect within its domestic
legal system. Those measures are effective when the community, in general, adapts
its conduct to conform to the principles of the Convention and when, if those
principles are breached, the penalties provided for therein are effectively applied.
70.
The effectiveness of laws is of fundamental importance in a legal system, as
lack of effectiveness may compromise their standing as law. This Court underscored
this point in the Aloeboetoe et al. Case, Reparations, when Suriname’s argument
that Surinamese family law applied in the region inhabited by the Saramaca tribe
was rejected by the Court because Surinamese family law was not effective in that
region; the Court opted instead to apply local customary law (Aloeboetoe et al. Case,
Reparations, supra 40, paragraphs 58 and 62)..
71.
Argentine laws that guarantee the right to life have been violated in the
instant case. Therefore, to ensure their effectiveness, Argentina must apply the
provisions established for violations of those laws; in other words, it must impose
the corresponding sanctions. These are the measures provided for in the American
Convention and that the State must take to ensure the effectiveness of the rights
and duties guaranteed under the Convention.
The American Convention is a
multilateral treaty whereby States parties undertake to guarantee and ensure
effective exercise of the rights and freedoms guaranteed therein and to comply with
the reparations ordered. Hence, the fundamental obligations that the American
Convention embodies to protect the rights and freedoms enumerated in its Articles 3
to 25, is to adapt domestic laws to conform to the Convention and to make
reparation, and thereby guarantee all the rights and freedoms therein upheld.
72.
These obligations are of equal importance. The obligation to guarantee and
ensure effective exercise is independent of and different from the obligation to make
reparation. The difference lies in the following: the reparation provided for in Article
63(1) is an attempt to erase the consequences that the unlawful act may have had
for the affected person, his family or close friends. Since the measure is intended to
make reparations for a personal situation, the affected party has the right to waive
that right. Thus, the Court could not object if an individual, particularly an adult,
who was the victim of a human rights violation waived the compensation to which he
or she was entitled. On the other hand, even though the aggrieved party may
pardon the author of the violation of his human rights, the State is nonetheless
obliged to sanction said author, except when the offense involved is prosecutable by
a private party. The State’s obligation to investigate the facts and punish those
responsible does not erase the consequences of the unlawful act in the affected
person. Instead, the purpose of that obligation is that every State party ensure,
within its legal system, the rights and freedoms recognized in the Convention.