Este reporte fue elaborado por
Oswaldo Ruiz-Chiriboga.
El último número de la Revista
Interamericana y Europea de Derechos Humanos – Inter-American and European
Human Rights Journal (Vol. 5, No.1-2, 2012), ya se encuentra disponible. Este es el índice de la Revista con el
respectivo resumen de cada artículo académico:
Translation Challenges of the Inter-American Court of Human Rights and
Cost-Effective Proposals for Improvement, Á. Paúl
The Inter-American Court of
Human Rights, a regional adjudicating body, is fairly influential in domestic
legal systems in the Americas. Its case law has also importance in other
international forums, which the Court promotes by translating its judgments into English. The effort involved in
translating the Court's case law is praiseworthy. However, translating legal
documents is a difficult task,
and the translations of the Court's case law are not always felicitous. In some
cases they have even mislead scholars in the interpretation of the Court's case law. This paper, after pointing
out some translation issues of the Inter-American Court, suggests ways in
which the translations of the Court's
decisions could be improved, without necessarily requiring a higher expenditure. These suggestions include
the temporary release of preliminary versions of the English translations of
the Court's decisions, the simplification of the language used in the judgments,
and the reorientation of the publicity remedy which the Court usually orders.
American Convention on Human Rights Articles 46(1)(a) and 46(2)(c):
Achilles Heel or Trojan Horse?, A. Singh
American Convention on
Human Rights (henceforth the Convention) Articles 46(1) and 46(2) seek
comprise yet appear to create ambiguity. In fact, Article 46(1) requires a
complainant to exhaust domestic remedies and file their petition to the Inter-American
Commission on Human Rights (henceforth IACommHR or Commission) within six months of a final
domestic judgment. Conversely, Article 46(2) provides three exceptions to 46(1) when the exhaustion of domestic remedies is not viable. A superficial comparison of
these provisions may find them unworkable, arbitrary, and creating legal
uncertainty in practice. However, recent implementation of these provisions
within the Inter-American system is remarkably consistent.
This paper shall (I) describe Articles 46(1) and 46(2);
(II) highlight the implementation of
these provisions within Inter-American jurisprudence through both a quantitative
and qualitative analysis; and finally (III) attempt to identify best practices.
This paper seeks to establish that, while many States attempt to utilize the
exhaustion of domestic remedies as an Achilles Heel to the Inter-American human rights
regime, recent jurisprudence within the system illustrates that this
potentially fatal flaw is mitigated through the exemption found within
Article 46(2).
Measures of Reparation for Victims of Gross Human Rights Violations:
Developments and Challenges in the Jurisprudence of Two Regional Human Rights
Courts, G.
Citroni
The notions
of victims of and measures of reparations for gross human rights violations
have consistently evolved over the years. This contribution aims to analyse
such development and the existing discrepancies in the jurisprudence of the European
and the Inter-American Court of Human Rights, as well as the possibilities for
further evolution. It is held
that victims of gross human rights violations are not only those - individuals or communities - who directly suffer the harm, but also other
people, such as relatives, who have suffered harm, be it physical, mental or economic,
as a result of the violations. To a larger extent, also society as a whole shall
be included in the notion of victim. Accordingly, also measures of reparations in
cases of gross human rights violations cannot be limited to pecuniary compensation,
but shall encompass measures of
restitution, rehabilitation, satisfaction and guarantees of non-repetition. The
participation of victims and their relatives in the design and implementation
of programmes of reparation or in the choice of the most appropriate measures
to pursue this end is critical to ensuring that measures of
reparation have a real impact.
The Institutionalization of People with Mental Disabilities: Comparative
Analysis between Its Treatment under the Inter-American and European System of
Human Rights, E. Acuña-Pereda
People with mental
disabilities are among the groups whose rights are most violated today. Mainly,
they are not considered capable of making their own decisions, and they are
placed in mental institutions without their consent and without the opportunity
to challenge this measure. This disturbing figure, called institutionalization,
has not been addressed adequately by states despite the entry into force of the
Convention on the Rights of Persons with Disabilities.
Within this background,
this article compares and analyses the major efforts and contributions in
relation to the institutionalization of people with mental disabilities in the
two more recognized regional systems: the Inter-American and the European
Systems of Hum an Rights. Through the instruments and jurisprudence their
bodies have adopted it can be identified and concluded that the major
difficulty was to decide on the absolute prohibition of institutionalization of
people with mental disabilities. However, there has been progress in certain
areas, mainly the ones regarding the rights to personal liberty, community life
and access to justice. Both regional systems have gradually incorporated the
principles of the Convention on the Rights of Persons with Disabilities in
order to protect and ensure the rights of people with mental disabilities.
Interpreting the European Convention: What can the African Human Rights
System Learn from the Case Law of the European Court of Human Rights on the
Interpretation of the European Convention?, L. Burgorgue-Larsen
The methods of interpretation under the European Convention on
Human Rights range from multifaceted judicial activism to judicial restraint aimed notably at avoiding needless antagonisation of the
States. On the one hand, the Court's judicial activism
developed through the use of several different types of interpretations. Alongside the
'cosmopolitical' method of
interpretation, a very bold
approach that ensured that the European Convention on Human Rights was always
on the cutting edge and never ossified or became outdated, there were also several more targeted interpretive techniques that served the same end, i.e. to broaden the Convention's purview. On the other
hand, the Court disposes of an array
of tools allowing it to exercise strategic self-restraint to avoid arousing the
ire of States intent on making
sovereign decisions about their own societal choices. These include the national
margin of appreciation, whose handling has not gone without criticism.
Gobernar desde abajo: Del control de convencionalidad a la
instrumentalización de la inversión estructural de la pirámide kelseniana, N.E. Garay Boza
El control de
convencionalidad, creado por la Corte Interamericana de Derechos Humanos, es una plataforma desde la
cual se pueden vislumbrar nuevas maneras de pensar al derecho, exponiéndose acá
una de ellas, específicamente un modelo mediante el cual normas de rangos
inferiores puedan tener validez constitucional o supraconstitucional por su compatibilidad con
el derecho internacional de los derechos humanos, tal modelo se denomina
inversión estructural de la pirámide kelseniana.
Advocacy for a U.S. Commission of Inquiry on Torture in the Context of
the “War on Terror” Inspired by the Latin American Experience: Chile and El
Salvador, Y.A.
Romaña-Rivas
The main
purpose of this paper is to discuss how a truth commission could be a pertinent
and an effective tool to reveal the truth about allegations of torture by the
United States (U.S.) government in the context of the war on terror. Two examples
of truth commissions that contributed to reveal the truth of violation of human
rights in two countries, Chile and El Salvador, are discussed. Additionally,
this paper discusses the obligation that the U.S. government has under
international law to investigate the allegations of torture, provide redress for
the victims and their families, and sanctions for those most responsible for torture.
El sistema africano: Pilar más incipiente de la trilogía de mecanismos
regionales de salvaguardia de los derechos humanos, E. Tardif
Después de Europa y América, África es el tercer continente en implementar un sistema de protección de
los derechos humanos, basado en una serie de instrumentos jurídicos que tienen como
punto central la Carta africana sobre los derechos humanos y de los pueblos, un grupo de
instituciones políticas y cuasi jurisdiccionales encargadas de fomentar la
cultura de los derechos humanos y fiscalizar su respeto y, de forma más reciente,
un tribunal que tiene como misión emitir sentencias de carácter vinculante para
los Estados, y evidenciar cuando éstos no cumplan con los
compromisos adquiridos en la materia. El presente trabajo trata todas estas facetas de la situación
de los derechos humanos en África, a través de ejemplos y datos que permiten plantear
una valoración del sistema.
Implementation of Judgments: Should Supervision be Unlinked from the
General Assembly of the Organization of American States?, J. Schneider
Implementation of judgments
of the Inter-American Court of Human Rights remains the weakest point of the
Inter-American human rights protection system. At the end of 2011, out of 136 cases
decided by the Court, 124 were still open for supervision. This evidences that purely judicial supervision, as is currently applied by
the Court, is not sufficient. Complementary political action is inevitable.
After serious conflicts
between the Court and the General Assembly on exhortation of recalcitrant states at
the beginning of the 2000s, the Court had completely left the Assembly out of
the process for years, developing its own supervision procedure. Nevertheless,
in view of several cases pending without progress for years, the question of
application of Article 65 ACHR has recently been discussed again among
the Judges of the Court.
This paper will briefly
present the background of the Court's dismay with the General Assembly, recount
former reform proposals, critically assess the Judges' arguments for and
against submission of cases to the Assembly, and finally make a proper proposal
of how a more efficient political
supervision mechanism might be conceived.
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