has not been constantly upheld by the Inter-American Court and depends on the
specific case. 70
55.
We believe that in the future, the Inter-American Court will need to define
more precisely this sensitive issue of the temporality of the effects of national
standards not in conformity with the Convention because its jurisprudence is not
clear. It should not be forgotten that, in principle, any human rights violation must
offer a comprehensive remedial effect and, consequently, this effect must reach
back into the past, when required, in order to achieve that goal.
56.
This is established in Article 63(1) of the American Convention, which
states:
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. (Underlining added)
57.
Although that provision refers to the attributes of the Inter-American
Court, mutatis mutandis, it should be applied by domestic judges because they
are also Inter-American judges when they carry out “diffuse conventionality
control. And this means ensuring, as far as possible, the effective enjoyment of
the right or freedom infringed. This leads to the affirmation that, in certain
cases, the consequences of standards that do not conform to the Convention
must be repaired, which can only be achieved by “revoking" these national
standards from the outset, and not based on their non-application or a
declaration of non-conformity with the Convention. In other words, retroactivity
is necessary in some cases in order to achieve an adequate enjoyment or
exercise of the relevant right or freedom. This affirmation is also consistent with
the Inter-American Court’s case-law in its interpretation of Article 63(1) of the
Pact of San Jose, which considers that any violation of an international obligation
that has caused damage must be “appropriately” repaired. 71 This constitutes
“one of the fundamental principles of contemporary international law on State
responsibility.” 72
f) Legal basis of “diffuse conventionality control”: the Pact of San Jose and
the Vienna Convention on the Law of Treaties
58.
From the inception of the jurisprudential doctrine on this type of control, in
the Case of Almonacid Arellano v. Chile, 73 the following was established:
70
Cf., For example, Case of Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru,
supra note 15, para. 128; Case of Indigenous Community Xármok Kásek v. Paraguay, supra note 21,
para. 311; Case of Fernández Ortega et al. v. Mexico, supra note 22, para. 234; Rosendo Cantú et al. v.
Mexico, supra note 23, para. 234; and Case of Vélez Loor v. Panama, supra note 25, para. 287.
71
Cf. Case of Velásquez Rodríguez v. Honduras, supra note 5, para. 25; Case of Chitay Nech et
al.. Preliminary Objections, Merits, Reparations and Costs. Judgment of May 25, 2010. Series C No. 212
para. 227; and Case of Manuel Cepeda Vargas. Preliminary Objections, Merits and Reparations.
Judgment of May 26, 2010. Series C No. 213, para. 211.
72
Cf. Case of Castillo Páez v. Peru. Reparations and Costs. Judgment of November 27, 1998.
Series C No. 43, para. 43; Case of Chitay Nech et al., supra note 71, para. 227, and Case of Manuel
Cepeda Vargas, supra note 71, para. 211.
73
Supra note 12, para. 125.
20
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