91
XIII. REPARATIONS
ENFORCEMENT OF ARTICLE 63(1)
Obligation to remedy
195. Pursuant to the analysis made in the preceding chapters, the Court has
declared, on the basis of the facts of the case, the violation of Article 3 of the
American Convention, as regards to Article 1(1) thereof; the violation of Article 4(1)
of the Convention, as regards to Articles 19 and 1(1) thereof, and of Articles 21, 8
and 25 of the American Convention, as regards to Articles 1(1) and 2 of the same, in
detriment of the members of the indigenous Sawhoyamaxa Community. The Court
has established, on several occasions, that any violation of an international
obligation which has produced harm implies the obligation to provide an adequate
remedy.227 To such effect, Article 63(1) of the American Convention states the
following:
If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his
right or freedom that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured party.
196. As the Court has pointed out, Article 63(1) of the American Convention
reflects a rule of customary law which constitutes one of the fundamental principles
of contemporary International Law regarding the responsibility of States. Thus, when
an illegal act occurs that can be attributable to a State, the international
responsibility of such State immediately arises from the breach of the international
rule in question, with the corresponding obligation to remedy and to cause the
consequences of the violation to cease.228
197. The reparation of the damages caused for the violation of an international
obligation, requires, whenever possible, the full restitution (restitutio in integrum,)
which consists of the reinstatement of the situation prior to the violation. Were this
not possible, the international court may determine a series of measures that, apart
from the guaranteeing observance of the human rights that have been violated, may
also remedy the consequences of the breaches and impose the payment of a
compensation for the damages caused.229 The duty to remedy, which is governed in
all its aspects (scope, nature, forms and determination of beneficiaries) by
International Law, cannot be modified or not complied with by the State owing such
duty, by alleging domestic law provisions.230
198. The reparations, as the term itself indicates, consist of measures tending to
eliminate the effects of the breaches perpetrated. Their nature and amount depend
227
Cf. Case of Acevedo-Jaramillo et al, supra note 3, para. 294; Case of López-Álvarez, supra note
3, para. 179 , and Case of the Pueblo Bello Massacre, supra note 3, para. 226.
228
Cf. Case of Acevedo-Jaramillo et al, supra note 3, para. 295; Case of López-Álvarez, supra note
3, para. 180, and Case of the Pueblo Bello Massacre, supra note 3, para. 227.
229
Cf. Case of Acevedo-Jaramillo et al, supra note 3, para. 296; Case of López-Álvarez, supra note
3, para. 182, and Case of the Pueblo Bello Massacre, supra note 3, para. 228.
230
Cf. Case of Acevedo-Jaramillo et al, supra note 3, para. 296; López-Álvarez, supra note 3, para.
182, and Case of the Pueblo Bello Massacre, supra note 3, para. 228.