Inter-American Human Rights System Dr Alejandro Fuentes Lund,

Inter-American Human Rights System Dr Alejandro Fuentes Lund,

Inter-American Human Rights System Dr Alejandro Fuentes Lund, 23 February 2015 American Declaration... US position Because the Declaration is not and never has been treaty, the [US] believes that the Court has no jurisdiction to consider the present request the [US]' view is that the Declaration remains for all member states of the O.A.S. what it was when it was adopted: an agreed statement of non-binding general human rights principles. The [US] must state [] that it would seriously undermine the established international law of treaties to say that the Declaration is legally binding. evolutive interpretation? I-ACtHR, Interpretation of the American Declaration..., OC-10/89, 14/07/1989.

A.F Can the American Declaration impose binding obligations upon States? 3 m general discussion! American Declaration... legal status... to determine the legal status of the American Declaration it is appropriate to look to the inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948. (para. 37) the Charter of the Organization cannot be interpreted and applied as far as human rights are concerned without relating its norms [] to the corresponding provisions of the Declaration. (para. 43)

For the member states of the Organization, the Declaration is the text that defines the human rights referred to in the Charter. (para. 45) I-ACtHR, Interpretation of the American Declaration..., OC-10/89, 14/07/1989. A.F I-ACtHR, Interpretation of the American Declaration Advisory Opinion OC-10/89, paras. 45, 47. an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation." Systemic interpretation I.C.J. Legal Consequences for States of the Continued Presence of South Africa in Namibia, A.O., Reports 1971, p. 16 ad 31)

Evolutive & Systemic interpretation of IHRL Human rights treaties are living instruments whose interpretation must consider the changes over time and present-day conditions; (para. 114) The corpus iuris of international human rights law comprises a set of international instruments of varied content and juridical effects (treaties, conventions, resolutions and declarations); (para. 115) Its dynamic evolution has had a positive impact on international law; The Court must [] consider [] the evolution of the fundamental rights of the human person in contemporary international law. (para. 115) I-ACtHR, Right to Information on Consular Assistance..., OC-16/99, 01/10/1999. A.F Commission: Individual Petition System Commission: Individual Petition System Individual or State

petition summit to the Comm. (Art. 23 Rules) Procedure (preliminary exceptions) and Decision on Admissibility Procedure (hearings)

and Decision on Merits; Issue of the Preliminary Report (confidential) (Art. 50 Conv.) No compliance and/or not submission of the case to the Court: Issue and publication of the Final

Report (Art. 51 Conv.) A.F Procedure on Merits (Commission) Any stage start a Friendly Decision on the Settlement I-ACHR Merits Consensual process; Separate opinions Own/parties initiative; Preliminary Report

(Art. 50 Conv.) If is reached: No violation Adoption Final Report Notification to the Parties (art. 49 Conv.); (Final Report) Verification of the victims Inclusion in Annual Report consensus (or next

of to OAS GA. kin); Based on respect of IHRL Violation (S.G. of OAS) Publication Report is Confidential Proposals and Recommendations Submission to Any time of I-ACHR: the Court Art. out an on-site 50carry Report, Respondent investigation

State AskConvention for additional Part writing information Accepted the Courts Hold hearings jurisdiction Prior Non of consent complian the State ce with the recommen -dations

(3 months) Set a deadlines Final Report (Art. 51Conv) Final conclusions and Recommendations Publication State part/not part Convention Binding force? A.F Procedure before the Commission Art 50 Preliminary Report

(violation) Solution of the case; Compliance by State Art. 51 Final Report with States Part Not complianc e (with Art. 50 Report, within 3 months)

Convention Conclusion and Recommendations Referral of the Case to the Court (Submission of Art. 50 Report ) States Not Part Convention Art. 51 Final Report with Conclusion and Recommendations

A.F Competence ratione personae Petitions or communications concerning alleged violations of human rights by OAS members: only for determination of the international responsibility of States (not individual responsibility of its agents); Individual Petitions (Art. 44 Conv.): Petitioners (any person or group of persons) e.g. the Association of Saramaka Authorities... doesnt the Convention identified identifiable) requires theorapproval of the Alleged Victims (individually alleged victim or

Next of kinds (victims in itself) NGOs (legally recognized within one OASs member) that petitioners present Inter-States (Art. 45 Conv.): powers of attorney from the alleged(only victims. 10 member states); Express recognition is required Case of alleged generalized human rights violations Not need to individually identify each possible victim!!! A.F Admissibility requirements Art. 46 Conv. Exhaustion of Domestic Remedies Available, adequate (suitable) and effective (capable); Except:

Domestic legislation does not afford due process of law; Denied access to the remedies under domestic law; Unwarranted delay in rendering a final judgment under those remedies; Burden of proof up to the respondent State; States have to indicate which domestic remedies should be exhausted (art. 31(3) rules of procedures); States have to provide evidence of their effectiveness; States can expressly or tacitly waive invocation of this rule; A.F Admissibility requirements Art. 46 Conv. Lodged the petition within 6 months from the notification of the final judgment; exceptions to the prior exhaustion of domestic remedies: within a reasonable period of time; consider the date when the alleged violation occurred;

Not litis pendentia before another international procedure for settlement; Essentially duplicates a petition pending or examined (same parties, object and legal grounds); Decision on the specific facts that are the subject of the petition (not general examination of country situation); Not manifestly groundless (no violation); or out of order. A.F The procedural system is a means of attaining justice and that the latter cannot be sacrificed for the sake of mere formalities. effet utile I-ACtHR, Case of the White Van (Paniagua-Morales et al.) v. Guatemala, 25/01/1996, para. 38. I-ACtHR, Case of Artavia Murillo et al. (in vitro

fertilization) v. Costa Rica, 28/11/2012, para. 35. Artavia Murillo (in vitro fertilization) v. Costa Rica, 2012 1995 03/2000 01/2001 07/2002 10/2003 07/2011 11/2012 Executive Decree authorizing in vitro fertilization Judgment of the Constitutional Chamber declaring its unconstitutionality Petition filed to the I-ACHR Ms. Espinoza found out about her infertility

Between her awareness & Complaints submission Ms. Espinozas complaint is introduced in the case More than I-ACHR submitted a brief to the Court (Art. 50 rep.) Judgment of the I-ACtHR six months elapsed! Admissibility requirements Art. 46 Conv. the reporting procedures of the universal treatybased bodies as well as that of the early warning and urgent procedure of the CERD cannot be considered to be of the same object, purpose, and nature as the adjudicatory jurisdiction of the Inter-American Court. Rather than adjudicating controversies and ordering appropriate

reparations, such procedures consist of reviews of the general situation pertaining to human rights or to racial discrimination in a certain country I-ACtHR, Case of the Saramaka People. v. Suriname. 28/11/2007, para. 53/54. A.F Competence ratione materiae Concerning alleged violations of a human right recognized in: American Declaration of the Rights and Duties of Man; American Convention on Human Rights Pact of San Jos, Costa Rica; Additional Protocol on Economic, Social and Cultural Rights Protocol of San Salvador (only right to education and trade unions rights; Art. 19 (6)); Convention on Human Rights to Abolish the Death Penalty; Convention to Prevent and Punish Torture; Convention on Forced Disappearance of Persons; Convention on the Prevention, Punishment and Eradication of Violence Against Women Convention of Belm do Par (only

Art. 7) A.F Article 7: Duties of the States to pursue, by all appropriate means and without delay, policies to prevent, punish and eradicate such violence [against women] and undertake to: a) refrain from engaging in any act or practice of violence against women and to ensure that their [including all its agents]; b) apply due diligence to prevent, investigate and impose penalties for violence against women; c) include in their domestic legislation [] provisions that may be needed to prevent, punish and eradicate violence against women []; f) establish fair and effective legal procedures [] include [] protective measures, a timely hearing and effective access to such procedures; g) establish the necessary legal and administrative mechanisms [] effective access to restitution, reparations or other just and effective remedies; I/A Court H.R., Case of Gonzlez et al. (Cotton Field) v. Mexico. 16/11/2009. A.F

referral of the Case to the Court (art. 45 rules) When the State has not complied with the recommendations of the report (art. 50 Conv.), the Commission it shall refer the case to the Court; The Commission shall give fundamental consideration to obtaining justice in the particular case, based, among others, on the following factors: the position of the petitioner; the nature and seriousness of the violation; the need to develop or clarify the case-law of the system; the future effect of the decision within the legal systems A.F This decision is not discretionary, but rather must be based upon the alternative that would most favorably protect the rights established in the Convention.

effet utile I-ACtHR, Case of the Saramaka People. v. Suriname. 28/11/2007, para. 39 ECHR Protocol No. 14 (2010) Article 35 ECHR 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly illfounded, or an abuse of the right of individual application; or (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal. A.F COURT, contentious Jurisdiction... Submissio

n Final decision of the Art. 50 Report by the I-ACHR Substantiation of the written Substantiati on of the oral

proceeding s (hearings) proceedings or by a STATE (brief) A.F of the Court Judgmen t on Merits / Reparatio n / Costs Inter-American Court of Human Rights (I-ACtHR)

7 Judges National of the OAS member states Elected for 6 years (one re-election), in their individual capacity No 2 judges with the same nationality Jurists with a highest moral authority Recognized competence in the field of HR Qualifications = highest judicial functions in their countries of origin Judges ad hoc (art. 55) A.F

My favourite Judge?? ViceVicePresident President President President A.F Inter-American Court of Human Rights (I-ACtHR) Contentious Jurisdiction (Art. 62 Conv.) Individual Petition cases; Inter-States cases; Provisional Measures (Art. 63(2) Conv.) Cases before the Commission & Court Monitoring Compliance of the Judgments; Advisory Jurisdiction (Art. 64 Conv.)

Request from a Member State; I-ACHR; or other OAS organs; Interpretation of the Convention or other Treaties concerning HR protection in the American States; or Domestic Laws of a Member State; A.F Contentious Jurisdiction Article 62 (1): A State Party may [] declare that it recognizes as binding, ipso facto [] the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention. Article 67: The judgment of the Court shall be final and not subject to appeal. In case of disagreement as to the meaning or scope or the judgment, the Court shall interpret it at the request of any of the parties Article 68 (1): The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties. A.F

Advisory Opinions... Function: alternate judicial method of a consultative nature, which is designed to assist states and organs to comply with and to apply human rights treaties without subjecting them to the formalism and the sanctions associated with the contentious judicial process. (OC-3/83; Restrictions to the Death Penalty; para. 43) is justified by its potential benefit for the international protection of human rights and for strengthening the universal juridical conscience. (OC-18/03; Juridical Condition and Rights of the Undocumented Migrants; para. 65) A.F Advisory Opinions... Object: any provision dealing with the protection of human rights set forth in any international treaty applicable in the American States, [...] whatever be the principal purpose of such a treaty

(OC-1/82; Other treaties subject to the advisory jurisdiction of the Court; decision) Limitation: when might weaken its contentious jurisdiction or [] changing the system of protection provided for in the Convention to the detriment of the victim. (OC-16/99; The Right to Information on Consular Assistance; para. 44) A.F Advisory/contentious jurisdiction... under its contentious jurisdiction, [the Court cannot] determine whether a law that has not yet affected the guaranteed rights and freedoms of specific individuals is in violation of the Convention. The Court could do so in the exercise of its advisory jurisdiction. (AO-14/94; International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention, para. 49). should not [...] be used for purely academic speculation, without a foreseeable application to concrete situations justifying the need for an advisory opinion. (not abstract questions).

(AO-9/87; Judicial Guarantees in States of Emergency; para. 16) A.F Advisory Opinions... I/A Court H.R., "Other treaties subject to the advisory jurisdiction of the Court (Art. 64 American Convention on Human Rights). Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1 (Solicited by Peru) I/A Court H.R., The Right to Information on Consular Assistance. In the Framework of the Guarantees of the due Process of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16 (Solicited by Mexico) /A Court H.R., Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18 of September 17, 2003. Series A No. 18 (Solicited by Mexico) A.F American Convention on Human Rights A.F Article 1.1. Obligation to Respect Rights (ACHR)

1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination [...] . Article 2. Domestic Legal Effects (ACHR) Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms. A.F I-ACtHR, Case of Almonacid Arellano et al. v. Chile, 26/09/2006, para. 110. I-ACtHR, Case of Almonacid Arellano et al. v. Chile,

26/09/2006, para. 117-118. Article 4. Right to Life 1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life . 2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. [] 3. The death penalty shall not be reestablished in states that have abolished it. 6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority. A.F Article 4: Fundamental character... The right to life is a fundamental human right, and the exercise of this right is essential for the

exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. Cannot be suspended in cases of war, public danger or any other threat to the independence or security of a State Party. Pueblo Bello Massacre v. Colombia, 31/01/2006, para. 120 A.F Street Children (Villagran-Morales et al.) v. Guatemala Merits/1999 Right to life includes,not only the right of every human being not to be deprived of his life [strictu sensu], but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence [lato sensu]. (para. 144) The right to life implies not only the negative obligation not to deprive anyone of life arbitrarily, but also the positive obligation to take all necessary measures to secure that that basic right is not violated. (Joint Concurring Opinion, para. 2) The duty of the State to take positive measures is

stressed precisely in relation to the protection of life of vulnerable and defenseless persons, in situation of risk, such as the children in the streets. (J.C.O., para. 4) A.F some statistics..... A.F Comparacin entre peticiones recibidas y decisiones sobre apertura, por ao I-ACHR: F)Comparison petitions received & decisions on processing between petitions received and decisions on processing, per year 2000 987 1077 1598

1515 1431 1089 979 1000 957 1050 1200 1325 1319 1330 1400

1323 1456 1600 1658 1800 714 593 593 634 600 588

800 400 200 0 2002 2003 2004 Peticiones recibidas Petitions received 2005 2006 2007 2008

2009 2010 2011 Decisiones sobre apertura Decisions on processing A.F Statistics of the Commission 2011 No. Cases 6134 1658 15,8 % 1077 789

262 8 25 23 t s d d g d t rt t n i e n

e e e u i r t e t vi k o e p p c m ss e C e e

o M e c e c l c e D tt e he oc e R h t Ac Ac e r

t s s s P s o T n t a y n n l n o O C o d d

io o t s N e n iti i t t t t r s it ie e ns o r n

o Pe P m p F io b e si t i i u t R c S Pe De A.F

petitions received in 2011 1658 Honduras ; 24 Uruguay; 21 Other; 102 Venezuela; 40 Ecuador; 57 Colombia; 342 Brazil; 68 Guatemala; 85 Costa Rica; 85 Mexico; 273 United States; 99 Chile; 123 Peru; 180 Argentina; 159 A.F

I-ACtHR (1979 2009) A.F Submission of contentious cases 174 A.F Contentious cases on stage of monitoring compliance with judgment Total Cases: 174 Monitoring in 2011: 125 A.F State of compliance of the indemnizations ordered A.F Articles of the ACHR most violated 1.1 (Obligation to respect rights)

8 (Right to a fair trial) 25 (Judicial protection) 9.09% 5 (Right to humane treatment) 2.19% 17.71% 7.68% 2.19% 2.66% 8.46% 8.78% 11.91% 7 (Right to personal liberty) 14.73% 4 (Right to life) 2 (Domestict legal effects) 14.58% 13 (Freedom of thought and expression)

21 (Right to property) 19 (Rights of the child ) Others A.F Inter-American Human Rights System: webpages OAS http://www.oas.org/en/default.asp Inter-American Court http://www.corteidh.or.cr/index.cfm Inter-American Commission http://www.cidh.org/DefaultE.htm I-ACHR hearing website http://www.cidh.oas.org/prensa/publichearings /advanced.aspx?Lang=EN A.F

Thank you for your kind attention Future remarks [email protected]

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