6
disappearance in Peru,” the said Final Report of the CVR repeatedly took into account, when
developing its arguments, the jurisprudence of this Inter-American Court.”10
II.
Towards the End of Self-Amnisties: The Contribution of the InterAmerican Court to the Prevalence of the Law.
23.
In its Judgment in the Case of “The Last Temptation of Christ” (Olmedo Bustos et al.)
vs. Chile, Judgment of February 5, 2001), this Court stated that the general duty imposed
by Article 2 of the American Convention requires that each State Party adopts all the
necessary provisions so that what is established by the Convention is effectively fulfilled
within the domestic law system, which means that the State must adapt its acting to the
protection rules and regulations of the Convention (para. 87). Seven months later, the
Court remembered said obiter dictum in its historical Judgment in the case of Barrios Altos,
regarding to Peru (Judgment Construction of September 3, 2001), in relation to the “duty of
the State to suppress, from its legal system, those rules in force which imply a violation” of
the American Convention (para. 17), and added:
"The enactment of a law expressly contrary to the obligations assumed by the State
Party of the Convention constitutes per se a violation of the latter and generates international
liability of the State. Consequently, the Court considers that, given the nature of the violation of
amnesty laws No. 26,479 and 26,492, the ruling of the Judgment on the merits of the case in
Barrios Altos has general effects (...)" (para. 18).
24.
In the case of El Amparo (Reparations, Judgment of September 14, 1996), regarding
Venezuela, I stated, in my Dissenting Opinion, that the existence of a legal provision of
domestic law itself can, per se, create a situation which directly affects the rights protected
by the American Convention, due to the risk or actual threat that its applicability represents,
without the need to expect the occurrence of detriment (paras. 2-3 and 6). In the same
case of El Amparo (Interpretation of Judgment, Ruling of April 16, 1997), and in my
subsequent Dissenting Opinion, I insisted in my understanding in the sense that
"A State may (...) have its international liability compromised, in my opinion, merely by
approving and enacting a law in conflict with its conventional obligations of protection, or by the
lack of adaptation of its domestic law to guarantee the faithful fulfillment of said obligations, or
by the non adoption of the necessary legislation to fulfill the latter.
(...) The tempus commisi delicti would extend in such a way to encompass the whole
period during which the national laws remained in conflict with the conventional obligations of
protection, thus entailing the additional obligation to remedy the subsequent detriments resulting
from such “continued situation” during the whole period under analysis” (paras. 22-23).
25.
I reaffirmed the same position in my Concurring Opinion in the above mentioned
case of “The Last Temptation of Christ”(paras. 2-40), where I pondered that, considering
that the tempus commisi delicti is the same as that of the approval and enactment of a law
incompatible with a human rights treaty, since then compromising the international liability
of the State, the modifications in the domestic legal system of a State Party, necessary to
its harmony with the rules and regulations of such a treaty, may constitute, within the
context of a specific case, a way of non-monetary compensation under such treaty. The
Judgment of the Court in this case was adopted on February 5, 2001.
10
CVR, Final Report, op. cit. supra No. (3), section 1(2)(1), pp. 59, 63, 65, 67-68, 107, 118, 131-132, 143,
151, 178, 191, 212-213, 260, 380, 401, 404-406, 408, 410, 413-414, 417, 421, 436, 439, 467-468, 472-475,
480-481, 484, 498-500, 504, 510, 521 and 529.
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