Article 35

This chapter studies Article 72 of the American Convention on Human Rights (ACHR), which deals with a fundamental tool for the effective functioning of any institution, that is, its financing. Article 72 provides that members of the Inter-American Commission of Human Rights and judges of the Inter-American Court shall receive “emoluments … with due regard for the importance and independence of their office.” In addition, it establishes the general framework for the preparation of the Court's budget. Under Article 72, the Inter-American Court plays an important role in the drafting of its budget. This element is obviously crucial to ensuring the independence of the inter-American judiciary with respect to the States Parties to the ACHR, but also with respect to the other organs of the Organization of American States (OAS).

The Inter‐American Court of Human Rights, established by the → American Convention on Human Rights (ACHR), is the leading regional human rights court in the Americas. The Court consists of seven judges, elected by secret ballot by member states of the Organization of American States (OAS).

This chapter evaluates Article 64 of the American Convention on Human Rights (ACHR). Article 64 of the ACHR confers on the Inter-American Court, under certain personal and material conditions, the competence to render advisory opinions. This is therefore outside the realm of litigation, in that it is not a matter of deciding a dispute relating to the application or interpretation of the Convention but rather of answering a question in abstracto relating to human rights. Article 64 creates a particularly ambitious and original mechanism, bringing together both classical and innovative aspects. The advantage of this mechanism is that it can play a role in preventing violations of the Convention, if it is actually used. From its first opinion, the Inter-American Court laid down the purposes of this particular procedure. It is aimed to assist States in their implementation of the ACHR, and to assist other Organization of American States (OAS) member States not bound by the Convention and OAS organs. The advisory procedure before the Inter-American Court has, actually, no equivalent in comparison with other international courts and tribunals.

This chapter describes Article 70 of the American Convention on Human Rights (ACHR). Article 70 of the ACHR focuses on the immunities and privileges to be granted to the members of the Inter-American Commission of Human Rights and the Inter-American Court. The aim pursued by Article 70 is therefore the protection of individuals in the exercise of their functions against all forms of pressure, including financial pressure. Article 70 refers to “international law” for the details of the regime applicable. As a result, the “immunities extended to diplomatic agents” apply to members of the Commission and judges of the Court. Therefore, the provision must be read in light of the 1961 Vienna Convention on Diplomatic Relations, which codifies customary rules on aspects relating to privileges and immunities. However, the referral to the situation of diplomatic agents does not mean that members of the Commission and judges of the Court are assimilated to diplomatic agents.

Venezuela faces a humanitarian crisis that has resulted in the exodus of more than four million people.The reception of thousands of Venezuelans by Brazil allowed the formulation of questions that justified the development of the research, among them, how to guarantee access to the human rights of these individuals through the application of international human rights treaties and internal national legislation.The objective was to examine the crisis in Venezuela and its consequences in Brazil; assess national precedents regarding the incorporation of international human rights treaties; list which rights of established Venezuelans are being disrespected and verify the actions taken by Brazil to ensure the human rights of these refugees.A search was carried out for statistical data and news related to the situation faced by Venezuelans, Brazilian public policies aimed at welcoming these individuals, in addition to a search in doctrines and legislation.It was found that despite the existence of a series of positive norms regarding the protection of the human rights of immigrants and refugees, in practice, these rights are not fully implemented in the protection of Venezuelan refugees in the national territory.The legal-political impact of national and international legislation on the protection of Venezuelan refugees in Brazil is still very small.It was observed that in order to guarantee the effectiveness of the application of the American Convention on Human Rights and of the internal legislation in the protection of Venezuelans in Brazil, the State must prevent, investigate and punish any violation of the rights recognized by the Convention, seek the reestablishment of the right violated and the repair of the damage caused.Both the legal provisions of the constitutional text and the Convention must be applied, so that the rule that best protects the rights of individuals is employed.An interdisciplinary state public policy must be implemented in order to guarantee assistance to refugees, capable of helping them to restart their lives with dignity.

This paper reflects on the discussions carried out during 2011 and 2012 within the Organization of American States about the Inter-American Commission on Human Rights’ procedures and how to strengthen the Inter-American human rights system. The paper shows that, while these debates are not new, the current discussion started in a complex and tense environment for the various actors of the Inter-American system. Then, rather than looking at the items on the agenda, the paper examines the cross-cutting problems or deficiencies that have emerged in the current discussion process. These problems are: how to finance the bodies of the Inter-American system; the system’s weakness due to its lack of universality; the conflicts between the Inter-American Commission’s mandate to promote and to protect human rights; the Inter-American Human Rights Commission’s autonomy to decide on countries’ recommendations; and, finally, the reluctance of the States to accept external guardianships or international supervision within a democratic context.

Under the Inter-American Human Rights System, individuals have a right to access reproductive technologies. However, the legal status of surrogacy agreements in State Parties to the American Convention on Human Rights (ACHR) is mostly uncertain. The article discusses whether a complete ban on surrogacy is compatible with the ACHR. It considers potential objections to surrogacy agreements: ‘corruption objections’—surrogacy denigrates the nature of what is being exchanged-, the potential exploitation of surrogates and welfare concerns of children born from surrogacy. The article concludes that States Parties to the ACHR should allow both altruistic and commercial surrogacy, but that regulatory schemes for appropriate protection of the rights of surrogates, intending parents, and children resulting from surrogacy ought to be secured.

The Inter-American System for Human Rights: Operation And Achievements

Improving the mechanism for the protection of human and civil rights and freedoms is a constant task for the legislator in any state. In scientific research, when analyzing existing Russian legislation, law enforcement practice, foreign experience, researchers justify the need to adjust Russian legislation and law enforcement. Some proposals are further reflected in the legislation. New challenges to the Russian state and society require additional measures to improve the activities of human rights commissioners (ombudsmen). These persons actively participate in the implementation of the human rights state function. The purpose of the study is to identify the features of legal regulation and the functioning of the Federal Commissioner for Human Rights in Russia, the implementation of its functions, and the determination of the most acceptable scientific views on improving its status, taking into account modern Russian realities and positive foreign experience. The methodological basis of the study was general scientific methods, as well as special legal methods of cognition, special importance is attached to the comparative legal method. We concluded that the recognition by the human rights commissioners (ombudsmen) of an important place in the state extrajudicial mechanism for the protection of human rights is not without grounds. When changing legal norms, it is necessary to take into account that the functionality of these persons is limited due to the specifics of their status, as well as the subsidiary of their role in protecting human and civil rights and freedoms. These persons contribute to the restoration of the violated right mainly through interaction with public authorities. Consequently, proposals to empower the Commissioner for Human Rights in the Russian Federation with unusual functions should be assessed for acceptability from the standpoint of the specifics of its status and the importance of ombudsmen in the Russian human rights mechanism.

The idea and law of derogation Under international human rights law, derogation allows certain human rights to be temporarily suspended in light of national emergency situations which may include armed conflicts. Such derogation provisions can be found in the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR). They seem to reflect the idea of a defence of necessity in international law and transpose it into human rights law. They are escape clauses which allow states, in an allegedly “realistic” perspective, to suspend human rights so as not to be unduly restricted in defending their very existence. Their message is that, when things really go wrong, there is still a way out, as states are not bound to adhere to human rights obligations if this means committing “state suicide.” What seems to reflect common sense is, however, difficult to capture as a legal phenomenon. Derogation clauses, as well as the whole idea of derogation remain opaque in international legal and international relations scholarship. They function in a complex matrix of concerns to guarantee human rights as inherent entitlements and protect citizens and domestic institutions effectively in situations of violence, while at the same time securing the stability and existence of the state and its institutions. Infringements of certain rights, particularly civil liberties as understood in domestic legal systems, were seen as acceptable under strict limits so as to ensure the overall functioning and survival of state and society. “Fundamental” liberties, such as the prohibition of torture and the right to life, were deemed as sacrosanct while other, seemingly less important, rights could be derogated. Derogation remains a paradox for the way it allows the suspension of rights precisely in times when they are most needed. The way in which states deal with the human rights obligations in situations of crisis can be seen as the acid test for their commitment, given that it is precisely in such situations where human rights protection against abusive and overreacting security forces in defence of a state apparatus under threat becomes important.

A topic motivating much research since 2016 is the turn away from international law caused by a surge in non-liberal and nationalist governments across the world. In the realm of human rights law, scholars have noted how states are now more apt to repudiate, resist, or simply ignore their human rights obligations. This essay makes a different cut into this topic. It considers not how non-liberal actors reject human rights law, but rather what happens when they embrace it. International human rights law in Latin America—often understood as a means of promoting a cosmopolitan, liberal political order—is also being harnessed toward other types of political projects. This raises the question of how necessary the link is between human rights and political liberalism: is non-liberal engagement an existential threat, or can human rights law have a thinner commitment to liberal principles than does, for example, national constitutional law? As the American Convention on Human Rights (ACHR) turns fifty, this essay argues that the human rights law of the Americas is open-ended enough that it can incorporate, and has at times incorporated, non-liberal concerns and norms without losing coherence or legitimacy. Further, this may be an apt survival strategy, albeit not the only one, for the region's human rights institutions in our time.

Arbitration — The Award — Scope and Binding Force of — Res Judicata — European Commission of Human Rights — Decisions Distinguished.Arbitration — The Award — Scope and Binding Force of — Res Judicata — European Commission of Human Rights — Decisions Distinguished.The Individual in International Law — Human Rights and Freedoms — European Convention for Protection of — European Commission of Human Rights — Individual Applications — “Applications Substantially the Same” (Article 27 (1) (b) of Convention) — “No Relevant New Information” — Res judicata Distinguished.

This chapter evaluates Article 20 of the American Convention on Human Rights (ACHR), which enshrines the right to a nationality. It affirms that everyone has the right to a nationality, while specifying that, in the absence of another nationality, everyone has the right to the nationality of the State in whose territory they were born. Moreover, Article 20-3 prohibits arbitrary deprivation of nationality. The provision echoes other norms previously set forth in international human rights law, but it is silent on the right to be protected against statelessness, which is the other face of the right to a nationality. Article 20 must be read in conjunction with other ACHR rights, including Articles 1-1 and 24 relating to non-discrimination and equality before the law, the right to legal personality (Article 3), the right to fair trial and access to justice (Articles 8 and 25), the right to a name (Article 18), the right to identity (Article 11), and the right of children to special protection (Article 19). The State also has an obligation under Article 2 of the ACHR to bring its domestic law into conformity with Article 20 when it is not fully compatible with the Convention.

This paper provides a theoretical and jurisprudential review of the right to appeal and the concept of procedural privilege, examining their implications for the rule of law and access to justice. In particular, this paper explores how the Brazilian Supreme Federal Court's handling of individuals without procedural privileges may violate the right to appeal outlined in International Human Rights Law. To address this research question, the study analyzes international human rights standards applicable to individuals facing adjudication by domestic courts, focusing on the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR). The research employs doctrinal and comparative methods, integrating legal and jurisprudential analyses. This study offers valuable insights into fair trial rights under international law by examining how Brazil's specific judicial challenges highlight broader global issues related to judicial authority and human rights protection. This paper indirectly examines whether the Brazilian Supreme Court's handling of Inquiry 4781 infringes upon the human right to appeal.

This chapter assesses Article 8, the right to a fair trial, of the American Convention on Human Rights (ACHR). Article 8 of the ACHR is based on a dual structure. The first paragraph of the provision applies to all kinds of proceedings and provides rights and guarantees to “every person,” regardless of the nature—criminal, civil, labor, fiscal, “or any other nature” of the matters dealt with by the tribunals. However, the following Paragraphs 2, 3, 4, and 5 are focused on criminal proceedings; they offer a specific protection to persons suspected of, accused of, or condemned for a criminal offense. In addition to the rules of fair trial protected by Article 8 of the ACHR, several provisions of the ACHR provide for special judicial guarantees for persons to ensure and guarantee their rights and freedoms. These include the right to a remedy in case of arrest or detention under Article 7-6 of the ACHR and the right to an effective remedy under Article 25 for any violation of the rights and freedoms enshrined in domestic law or in the ACHR. Although silent on judicial guarantees, Article 19 of the ACHR (special protection of children) has also close ties with Article 8.