5
particularities of each concrete case, and evaluating the consequences,” 17 which is
an inherent attribute of the judicial process.
13.
In its Judgment on the merits in the Suárez Rosero v. Ecuador Case (1997),
the Inter-American Court established, inter alia, that a certain provision of the
Ecuadorian Penal Code constituted a per se violation of Article 2 of the American
Convention, independently of whether or not it was applied in the particular case
(para. 98). Later, in its Judgment on the merits in “The Last Temptation of Christ”
(Olmedo Bustos et al. v. Chile Merits, 2001), the Inter-American Court made clear
that the mere existence and applicability of a norm of domestic law (whether
constitutional or other) can per se compromise the State responsibility under a
human rights treaty (para. 72).
14.
In my Dissenting Opinion in the Genie Lacayo v. Nicaragua Case (Application
for judicial review of the Judgment, 1997) 18, I expressed my understanding in the
sense that the very existence of a norm of internal law “legitimises the victims of the
violations of the rights protected by the American Convention to require its
compatibility with the provisions of the Convention, (…) without having to wait for
further harm to be done” from the norm (para. 10). 19 In the present case, Hilaire,
Constantine and Benjamin et al., this additional harm would result from carrying out
the death sentences.
15.
Indeed, in the present Judgment, the Court has correctly ordered, as a means
to make reparations, 20 that the respondent State abstain from continuing to apply
the aforementioned Act, reform it to the standards of international human rights law
(para. 212) and in addition that it abstain from executing those sentenced to death
(para. 215). These non-monetary reparations comply with the objective of making
the effects of the violations of the American Convention committed by the State
cease, in accordance with the findings of the Inter-American Court in the present
Judgment.
16.
Furthermore, in my Concurring Opinion in the Barrios Altos v. Perú Case
(Merits, Judgment of March 14, 2001) I observed that a law can, by its very
existence, constitute a source (fons et origo) of an illicit international act, beginning
as from their own adoption (tempus commisi delicti), and irrespective of
their subsequent application, they engage the international responsibility
of the State. Their being in force creates per se a situation which affects
in a continuing way non-derogable rights, which as I have already
indicated, belong to the domain of jus cogens. Once established, by the
adoption of such laws, the international responsibility of the State, this
is under the duty to put an end to such situation in violation of the
17
Ibid. p. 217 (Translation by the Secretariat of the Court).
18
I/A Court H.R., Genie Lacayo Case. Application for judicial review of the Judgment of January 29,
1997. Order of the Court of September 13, 1997. Series C No. 45.
19
I also took the same position in my Dissenting Opinion (para. 21) in the Caballero Delgado and
Santana v. Colombia Case (Reparations, 1997). For jurisprudence on the concept of the “potential
victim,” cf. A.A. Cançado Trinidade, “Co-Existence and Co-Ordination of Mechanisms of International
Protection of Human Rights (At Global and Regional Levels)”, p. 202 Recueil des Cours de l’Académie de
Droit International de La Haye (1987) pp. 271-283.
20
From the Latin repartio, derived from reparare, “prepare or arrange again.”
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