18 VII FAILURE TO COMPLY WITH ARTICLE 243 OF THE CONVENTION, IN CONJUNCTION WITH ARTICLES 1(1),44 4(1),45 4(2),46 AND 25(1)47 THEREOF 63. In this chapter, the Court will address the parties’ arguments regarding whether Section 2 of the Offenses Against the Person Act 1994 of Barbados and Section 26 of the Constitution of Barbados are incompatible with the State’s obligations under Article 2 of the American Convention. 64. “The Commission submit[ted] before the Court that both [S]ection 2 of the Offences Against the Person Act 1994 of Barbados and Section 26 of the Constitution of Barbados are incompatible with the State’s obligations under Article 2 of the American Convention, insofar as these legislative provisions fail to comply with or give effect to the rights and freedoms protected under the Constitution of Barbados and the American Convention on Human Rights.” Specifically, “[S]ection 2 of the Offences Against the Person Act 1994 prescribes the death penalty as the automatic and mandatory punishment for murder [and is] thus a law that impedes the exercise of the right not to be arbitrarily deprived of life[; therefore, it] is per se contrary to the Convention and the State has a duty to eliminate or modify it pursuant to Article 2 of [that] instrument.” Furthermore, “[t]he Commission submit[ted] that similar arguments apply to Section 26 of the Constitution of Barbados[, because it] prevents the courts in that country from declaring certain laws to be inconsistent with the fundamental rights prescribed under […] the Constitution.” Thus, “[S]ection 26 is referred to as a ‘Savings Clause[’] because it immunizes pre-constitution laws from constitutional challenge even if those laws are inconsistent with fundamental rights and freedoms enshrined in the [C]onstitution.” “In this context, the Commission consider[ed] that [S]ection 26 of the Constitution of Barbados is incompatible with the obligation of State[s] Parties under Article 2 of the Convention to give domestic legal effect to the rights protected under the Convention.” 65. Finally, the Commission “reiterate[d] its acknowledgment of the importance of the State’s decision regarding the abolition of the mandatory aspect of the death penalty and the repeal of [S]ection 26 of its Constitution.” Nevertheless, “the Commission observe[d] that the contravening laws still exist and are in effect in Barbados and[,] therefore, the measures planned must be codified in law and implemented in practice before they can be considered to have an effect on the resolution on the instant case.” 66. The representatives submitted that “[t]he Constitution of Barbados is drafted so as to immunize from challenge on grounds of incompatibility with fundamental rights any law that is deemed to be ‘an existing law’ by [S]ection 26 of the Constitution. Since the OAPA 43 Article 2 stipulates that: “[w]here the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.” 44 Article 1.1, supra note 19. 45 Article 4.1, supra note 17. 46 Article 4.2, supra note 18. 47 Article 25.1 stipulates that: “[e]veryone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”