Article 72

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.

This chapter evaluates Article 35 of the American Convention on Human Rights (ACHR). Article 35 of the ACHR is the same provision as Article 2-2 of the Statute of the Inter-American Commission of Human Rights and is also found in Article 1-2 of the Rules of Procedure of the Commission. In requiring that the Commission must represent “all the member countries” of the Organization of American States (OAS), Article 35 of the Convention underlines the independence of the members toward their own State. Given that there are only seven members and thirty-five States members of the OAS, this clarification was required. This provision must be read in conjunction with Article 36 that indicates that the members of the Commission are elected in their personal capacity and not as representatives of their government. Overall, “these provisions at once isolate the commissioners from their governments and legitimize the actions of the Commission as actions of the OAS itself.”

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.

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

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).

El objetivo esencial es el análisis y la demostración de la influencia que ha tenido la Corte Interamericana de Derechos Humanos (Corte IDH) en los sistemas jurídicos de protección de derechos humanos de México y Colombia. Asimismo analiza el grado de cumplimiento de la Sentencia Radilla Pacheco y la masacre de Santo Domingo. El trabajo se ha dividido en cuatro ejes temáticos: el primero se enfoca en la evolución del concepto de Control de Convencionalidad (CCV); el segundo revisa la forma en la que la Corte IDH interpreta la Convención Americana de Derechos Humanos (CADH); el tercero analiza el grado de cumplimiento de la Sentencia Radilla Pacheco versus México dictada el 30 de noviembre de 2009 y su influencia en el sistema jurídico mexicano; y el cuarto eje expone la Sentencia de la masacre de Santo Domingo versus Colombia dictada en noviembre de 2012; además se constata la efectividad de la propia Corte IDH ante este controvertido caso. La conclusión muestra que el CCV ha ido evolucionando en los últimos años a fin de superar los obstáculos que ha encontrado dentro de algunos sistemas jurídicos estatales de protección de derechos humanos. Por tal motivo, se concluye afirmando que la Corte IDH sí ha sido efectiva para la resolución de casos controversiales y ha coadyuvado al cumplimiento de la protec-ción de los derechos humanos.

This chapter investigates Article 63-2 of the American Convention on Human Rights (ACHR). Article 63-2 of the ACHR organizes a special incidental procedure before the Inter-American Court of Human Rights. It recognizes the Inter-American Tribunal's competence to order provisional measures under certain conditions. In addition to the claims on the violation of the ACHR lodged under Articles 44 (individual petition), or 45 (inter-State communication), the petitioner may bring an incidental request to the Court. Its purpose is to obtain from the respondent State the adoption of a certain type of conduct, pending the decision on the merits of the case. Article 63-2 is divided into two sentences which refer to two distinct procedural moments. The first sentence refers to the Court's jurisdiction to order interim measures in the event of a petition brought before it. The second sentence of Article 63-2 concerns cases for which “it has not yet been seized” and which are therefore being examined by the Commission.

This article challenges the justification usually offered by the Inter-American Court of Human Rights for its broad use of external sources when engaging in evolutive interpretation of the American Convention on Human Rights (ACHR). It analyses the Court's jurisprudence concerning international humanitarian law, the rights of the child, and lesbian, gay, bisexual, transexual and intersex (LGBTI) rights, in addition to drawing on interviews conducted with lawyers of the Court. It argues that the discursive strategy used by the Court to justify its ‘import’ of external sources fails to provide a complete normative justification and remains open to the charge of ‘cherry-picking’. The article recommends that the Court tailors its discursive strategy to the specific type of external sources used and suggests that more attention be paid to searching for internationalized consensus when determining the relevance of non-binding sources to evolutive interpretation of the ACHR.

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.

In its report on the fragmentation in international law, the ILC decided not to deal with the issue of institutional fragmentation – the fragmentation of international law brought on by the existence of different institutions dealing with norms that are “normatively equivalent”. This is a study of institutional fragmentation within human rights law; specifically it is an attempt to gauge the extent of fragmentation through the case-law of three courts, the Inter-American Court of Human Rights, the European Court of Human Rights and the Human Rights Committee, focusing on freedom of speech as related to journalists. It compares the texts, scope, tests and justifications of the three human rights conventions and concludes that, at least in this narrow field, the fear of fragmentation is unwarranted, with a large caveat which pertains to the doctrine of the margin of appreciation as practiced by the ECtHR and its “slipperiness”.

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 Independence of the Inter-American Judge

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.