Inter‐American Court of Human Rights

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

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 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.

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 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 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).

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

The study aimed to analyse how the Ukrainian legal system implements the decisions of the European Court of Human Rights, as well as to identify problems and prospects for improving this process. The article used methods of legal analysis of the decisions of the European Court of Human Rights, comparison of national legislation with the European Convention on Human Rights, analysis of the statistics of the European Court of Human Rights, research on the implementation of European Court of Human Rights decisions at the national level, hermeneutics to identify terminological gaps, analysis of the implementation of European standards in the national legal system, and deduction to identify key issues in cases against Ukraine. An analysis of the decisions of the European Court of Human Rights revealed numerous systemic human rights violations in Ukraine, particularly in the areas of conditions of detention, unlawful arrests and lengthy court proceedings. Problems with non-enforcement of court decisions and violations of the rights to liberty and dignity have been confirmed by numerous cases, such as Gongadze v. Ukraine and Kharchenko v. Ukraine. Amendments to the Criminal Code of Ukraine following the decisions of the European Court of Human Rights, in particular the limitation of the term of pre-trial detention, have reduced the number of cases of prolonged detention The study aimed to analyse how the Ukrainian legal system implements the decisions of the European Court of Human Rights, as well as to identify problems and prospects for improving this process. The article used methods of legal analysis of the decisions of the European Court of Human Rights, comparison of national legislation with the European Convention on Human Rights, analysis of the statistics of the European Court of Human Rights, research on the implementation of European Court of Human Rights decisions at the national level, hermeneutics to identify terminological gaps, analysis of the implementation of European standards in the national legal system, and deduction to identify key issues in cases against Ukraine. An analysis of the decisions of the European Court of Human Rights revealed numerous systemic human rights violations in Ukraine, particularly in the areas of conditions of detention, unlawful arrests and lengthy court proceedings. Problems with non-enforcement of court decisions and violations of the rights to liberty and dignity have been confirmed by numerous cases, such as Gongadze v. Ukraine and Kharchenko v. Ukraine. Amendments to the Criminal Code of Ukraine following the decisions of the European Court of Human Rights, in particular the limitation of the term of pre-trial detention, have reduced the number of cases of prolonged detention

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.

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.

In international human rights law, the notion of due diligence concerns a qualifier of behaviour to realize human rights protection, including the protection against non-state actor interferences. However, the question remains what due diligence obligations of states in the context of non-state actor interferences exactly entail in international human rights law. The present article aims to address this matter by comparing case law of the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACtHR). Using a working model of due diligence that has been introduced in recent scholarly work, this article further explores this model and attempts to give further meaning to its two paradigms: ‘regulation’ and ‘risk management’. In that way, it maps out the relevant elements of this foundational concept that lies at the heart of human rights protection.

The need to protect and prevent the destruction and pollution of the environment is recognized by all governments and individuals. The possibility of litigation and litigation against harmful actions for the environment is one of the guarantees of effective implementation, which should be given more attention by the governments and regulatory mechanisms of the region and internationally, and the possibility of litigation based on benefits. Public courts or competent regional authorities, including the European Court of Human Rights, the American Court of Human Rights, and the African Court of Human and Peoples' Rights, appear to be an effective step in protecting the environment and respecting fundamental human rights. The chapter examines the procedure of the regional courts of human rights and the domestic courts in some countries regarding the possibility of public litigation.

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.