8
25.
Protection obligations arise directly from International Law and are governed
by the relevant provisions of human rights treaties and the general principles of
International Law. If all criticism –referred to above– by the most perceptive
international-law scholars to the alleged distinction between obligations of conduct
and obligations of result took into consideration how inadequate such distinction was
to determine the very own origin of the international responsibility of the State in a
specific case, then I find such distinction even more inadequate for a determination of
the consequence of the original engagement of responsibility, i.e. its implementation
with the resulting duty to make reparation. In turn, such duty represents a true
obligation of result.
26.
To sum up and as a conclusion, the conduct of a State Party to a human rights
treaty needs to conform to the result imposed by the conventional obligations of
protection. In the International Law of Human Rights, it is not the result that is
conditioned by a State’s conduct but, conversely, it is the conduct of the State that is
conditioned by the attainment of the result sought by the protection provisions. In
ordering reparation, the Inter-American Court does not always go into detail regarding
the conduct that the State should observe but it does, however, determine that the
respondent State is required to achieve the result ordered by it: due reparation to the
victims.
27.
For instance, Article 68(2) of the American Convention provides that "that part
of a judgment that stipulates compensatory damages may be executed in the country
concerned in accordance with domestic procedure governing the execution of
judgments against the state". If the domestic procedure is insufficient or inadequate
to provide reparation, the State is then required to take the necessary measures to
make up for such insufficiency or inadequacy and achieve the result sought, namely
the reparation. This is a conventional obligation of result that conditions the conduct
of the State. The conduct must be such that it leads to the fulfillment of the obligation
of result. The conduct is an integral part of the duty to repair, which is an obligation of
result.
28.
The authorization embodied in Article 68(2) of the Convention, which applies to
monetary reparation only, does not mean that the State is not allowed to engage in
such conduct as it may deem appropriate. Its conduct is conditioned by the obligation
of result, which consists in providing reparation. As regards non-monetary reparation,
it must be given in the terms of the Judgment rendered by the Inter-American Court.
There is no question that any reparation – monetary or non-monetary – must be
made effective as an obligation of result. This is the conclusion clearly inferred from
Article 68(1) of the Convention, under which:
"The States Parties to the Convention undertake to comply with the
judgment of the Court in any case to which they are parties."
29.
Otherwise, the State might claim that, in spite of its proper conduct, it has
been prevented from adequately fulfilling its duty of reparation as a result of domestic
law difficulties or insufficiencies - and this would be inadmissible. I find it obvious that
such duty is not one merely of conduct: it truly is an obligation of result. The Court
could not possibly hold a case over and close the file on it just because the State
acted properly; it may only do so once the result, full reparation to the victims (and
once the victims, their next of kin and all interested parties and parties involved in the
proceedings before the Court have been consulted), has been achieved. Otherwise,
we would be faced with a legal formality leading to an absurdity. To conclude, when
dealing with a peremptory right such as the international protection of human
persons, conventional obligations of protection are inescapable and imposed per se,
and they are necessarily obligations of result.