6
20.
In this regard, in the memorable Case of Suárez Rosero versus Ecuador
(judgment of November 12, 1997), for the first time in its history, the Court decided
expressly that a norm of domestic law (the Ecuadorian Penal Code) violated per se
Article 2 of the American Convention, "irrespective of whether it had been applied in the
instant case” (paras. 93-99, particularly para. 98). Significantly, this judgment of the
court in the Case of Suárez Rosero also devoted a whole chapter (No. XIV) to
establishing the autonomous violation of the general obligation of Article 2 of the
American Convention.8
21.
Likewise, in Case of Hilaire, Constantine and Benjamin et al. versus Trinidad and
Tobago (judgment on merits of June 21, 2002), invoking the principle of jura novit
curia, the Court considered that the defendant State had incurred in an autonomous
violation of Article 2 of the American Convention owing to the mere existence of its
“Law on Crimes against the Person,” irrespective of its application (paras. 110-118).
Lastly, in the instant case of the Case of Yean and Bosico children versus the Dominican
Republic, when ordering reparations in the judgment it has just adopted, the Court
stressed the broad scope of the general obligations of Articles 2 and 1(1) of the
Convention, when it considered that:
"(...) Pursuant to Article 2 of the American Convention, the Dominican Republic
should adopt in its domestic laws, within a reasonable time, the legislative, administrative
and any other measures necessary to regulate the procedure and requirements for
acquiring Dominican nationality by late declaration of birth. This procedure must be simple,
accessible and reasonable, because, to the contrary, applicants could remain stateless.
Furthermore, there must be an effective recourse for cases in which the request is refused.
(...) When establishing the requirements for late registration of birth, the State
should take into consideration the particularly vulnerable situation of Dominican children of
Haitian origin. The requirements should not constitute an obstacle for obtaining Dominican
nationality and should only be those that are essential for establishing that birth occurred in
the Dominican Republic. (...) Moreover, the requirements should be specified clearly and be
standardized, and their application should not be left to the discretion of State officials, in
order to guarantee the legal certainty of those who use this procedure and to ensure an
effective guarantee of the rights embodied in the American Convention, pursuant to Article
1(1) of the Convention.
The State should also take the permanent measures necessary to facilitate the
early and opportune registration of children, irrespective of their parentage or origin, so as
to reduce the number of individuals who resort to the procedure of late registration of birth"
(paras. 239-241).
22.
In brief, in this judgment, the Court has preserved the standards of protection
embodied in its consistent case law. It has availed itself of the extremely useful
contribution made by its Advisory Opinion No. 18, on the Juridical Status and Rights of
Undocumented Migrants (2003), and also the relevant legacy of its Advisory Opinion
No. 17 (on the Juridical Status and Human Rights of the Child, 2002); it has
interrelated the violated rights (right to nationality and rights of the child, right to a
name and to juridical personality, and the right to equal protection and the right to
humane treatment 9), instead of dealing with them in an unduly compartmentalized
way 10; and it has underscored the broad scope of the general obligations of Articles
8
.
Shortly afterwards (on December 12, 1977), the Supreme Court of Ecuador decided to declare that
the norm in question was unconstitutional; this was the first time that a provision of domestic emergency law
was modified promptly owing to a decision of the Inter-American Court.
9
.
10
In this specific case, the latter violation with regard to the next of kin.
.
In my recent separate opinion in Case of Acosta Calderón versus Ecuador (Judgment of June 24,
2005), I reiterated my continued understanding that “the best hermeneutics for the protection of human
rights is that which interrelates the indivisible protected rights – and not that which seeks incorrectly to