Este reporte fue elaborado por Oswaldo
Ruiz-Chiriboga.
El Centro de Derechos Humanos de la Universidad de Gante (Bélgica)
publicó un número especial de la Revista Interamericana y Europea de Derechos
Humanos, editado por Clara Burbano-Herrera y Oswaldo Ruiz-Chiriboga, titulado “Protection of Human Rights in the
Americas. Selected Essays for the Inter-American Court of Human Rights’ Anniversary” (Vol. 7,
2014). Este es el contenido de la revista:
Resuscitating Justice: The
Inter-American Court Confronts the Entrenched Impunity of National Amnesty Laws
J. Davis
Abstract: Amnesty
laws are perhaps the most formidable barrier to accountability for human rights
violations in Latin America. This article examines how the Inter-American Court
of Human Rights (IACtHR) confronted these amnesty laws and the effect of its
rulings in a number of cases. It analyses the Barrios Altos case, Almonacid-
Arellano v. Chile, Gelman v. Peru and Gomes Lund v. Brazil to make the
following arguments: (1) the IACtHR established and developed the right to
truth through its decisions in these amnesty cases; (2) through these
decisions, the IACtHR enables legal accountability in the nations from which
these cases arose; and, (3) despite these accomplishments, significant barriers
to accountability remain.
An Affront to the Conscience of
Humanity: Enforced Disappearances in the Case Law of the Inter-American Court
of Human Rights
N. Kyriakou
Abstract: This
article seeks to address a series of issues relating to the case law of the
Inter-American Court of Human Rights (IACtHR) on cases of enforced
disappearances. First, it will identify the separate human rights violations
implicated in the perpetration of enforced disappearances and discern the
IACtHR’s methodological approach on re-conceptualising enforced disappearance
as a continuous and multiple human rights violation. Further, it will focus on
the issue of the continuous nature of the violation and will point to certain inconsistencies
that the IACtHR’s analysis appears to suffer from. Second, it will address the
IACtHR’s inclusive approach when identifying the victims of enforced
disappearance. Beyond the material victim, the IACtHR has created an iuris
tantum list of individuals that are potentially affected by enforced
disappearance. Third, it will explore the manifold remedial schemes that the
IACtHR has devised for cases of forced disappearance. Fourth, it will seek to
compare the assessment of the IACtHR with that of the European Court of Human
Rights (ECtHR) and of the Human Rights Committee (HRC) in some of the
aforementioned themes. The purpose of this comparative exercise will be to
further the analysis of the IACtHR’s case law on the basis of a horizontal
comparison and will aim at illustrating the innovative approaches and solutions
reached by the IACtHR.
Contributions and Challenges for the
Inter American Court of Human Rights for the Protection of Migrants’ Rights:
The Case of Vélez Loor v. Panama
G. De León
Abstract: Migration
is a global phenomenon that affects every country in the world. Migrants find
themselves in situations of particular vulnerability that require states to
adopt measures for their protection. The international community has elaborated
a generally recognized framework with this aim, and many international bodies
have developed standards with the same objective. This article explores the
contributions of one of these bodies to protect migrants: the Inter-American
Court of Human Rights. It examines the earlier developments of the
jurisprudence of the Court on this matter, and later focuses on the first case
about migrant rights that was decided by the Court: the Case of Vélez Loor v.
Panama. This landmark decision addressed important issues that affect the
rights of migrants at present, such as the criminalization of irregular
migration, the inadequate detention conditions for undocumented migrants, and
the lack of access to adequate remedies to challenge the decisions that affect
their rights, among others.
Examining Atala-Riffo and Daughters
v. Chile, the First Inter-American Case on Sexual Orientation, and Some of its
Implications
Á. Paúl
Abstract: This
article begins by recounting the facts and rulings of Atala-Riffo and Daughters
v. Chile, such as the Inter-American Court of Human Rights’ interpretation of
the right to private and family life, its categorisation of sexual orientation
as a social condition that cannot be considered a basis for discrimination, and
the limits to the application of the principle of protection of the child’s best
interest. The article then describes the participation of Karen Atala’s
daughters in this case, which was one of the most controversial procedural
matters of Atala-Riffo and Daughters. After doing so, it engages in an analysis
of the scope of this case, for instance, by determining the extent to which it
applies to gender identity. The article also refers to the difficulties that
may arise when trying to interpret this case in regard to family life, and the
relation between morality and privacy. Finally, reference is made to
Atala-Riffo and Daughters’ position within the wider context of the three major
human rights regional systems.
Towards a Uniform Basis for the
Right to Identity in the Normative Framework of the American Convention on
Human Rights
R.I. Sijniensky, N.A. Aizenstatd
Abstract: The
right to identity has surfaced in the jurisprudence of the Inter-American Court
of Human Rights mostly in cases dealing with enforced disappearance of
children. Although not a right that is independently defined in the Convention,
the Court has declared its existence through the interpretation of several
other rights. The rights from which identity has been derived have not been uniform
and vary from case to case. This lack of uniformity can create difficulties in
the future by limiting the applicability of the right to cases of enforced
disappearance of children. We propose that in order to have a uniform basis for
the right to identity which is not dependent on fact specific situations and
does not hinder its possible application in the future to cases not related to
children, the right to identity should be derived from Article 11(2) of the
American Convention on Human Rights.
Positive Obligations in the
Jurisprudence of the Inter-American Court of Human Rights
L. Lavrysen
Abstract: The
present article examines the concept of positive obligations in the case law of
the Inter-American Court of Human Rights (the Court). From its first
contentious case of Velásquez-Rodríguez v. Honduras on, the Court has clearly
rejected the classical negativistic position that human rights only give rise
to negative obligations to refrain from acting in such a way that violates
human rights. Instead the Court has interpreted the American Convention on
Human Rights (ACHR) as also giving rise to positive obligations that require
actions by the state to actively protect against human rights violations. Based
on Articles 1(1) and 2 ACHR in conjunction with specific ACHR rights, the Court
has recognised a wide array of positive obligations, including obligations to
prevent, investigate, punish and provide reparations for human rights
violations, as well as obligations to fulfil human rights (in particular the
right to a ‘dignified’ life) and to provide substantive equality. The paper
argues that the Court’s positive obligations case law clearly illustrates that
the Court is acting at the forefront of developments in international human
rights law. Moreover, it is argued that if the Court pursues the Drittwirkung
approach proposed in its Advisory Opinion on the Juridical Condition and Rights
of Undocumented Migrants, the ACHR has the potential of “constitutionalising”
nearly all dimensions of human conduct.
The Independence and Impartiality in
the Inter-American Court’s Jurisprudence: The Specific Case of Judges’ Arbitral
Removal
G. D’avino, D. Fanciullo, A. Iermano,
A. Martone, R. Palladino
Abstract: This
work focuses on the independence and impartiality of domestic judges and
tribunals, starting from a comment on three IACtHR judgments: Chocrón Chocrón
v. Venezuela, 1 July 2008; Reverón-Trujillo v. Venezuela, 30 June 2009; Apitz
Barbera et al. v. Venezuela, 5 August 2008. As is well known, to ensure due
process, Article 8(1) of the ACHR enshrines that every person has the right to
a hearing by an independent and impartial tribunal. Given the relevance of this
guarantee, the so-called “fraudulent res judicata” can result from a trial in
which the rules of due process have not been respected, or when judges have not
acted with independence and impartiality. Furthermore, Article 27(2) of the
ACHR provides for the non-suspension of judicial guarantees essential to the
protection of fundamental human rights in state of emergency. A relevant
corollary of judicial independence is the inability to remove judges during
their term of office. In fact, the Court holds that provisional judges exercise
exactly the same functions as permanent judges and, therefore, the State must
offer the guarantees derived from the principle of judicial independence to
both permanent and provisional judges. Thus, starting from the above-mentioned
judgments, this article analyses remedies to impartiality and independence
breaches, especially regarding the judges’ arbitrary removal based on political
criteria in exceptional situations.
The Inter-American Court of Human
Rights’ Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil Judgment and the
Brazilian Federal Supreme Court Judgment on the Constitutionality and
Conventionality of the 1979 Amnesty Law
L. Ayres França
Abstract: In
the year 1972, the Communist Party of Brazil (PCdoB) gathered around 90 people
in the region of Sao Joao do Araguaia, Pará, to fight the Brazilian military
dictatorship (1964–1985). The military government decided to react, and between
April of that year and January 1975 sent troops to occupy the territory and
decimate the resistance. In 1973, the Guerrilla repression was intensified and
the official order turned to eliminate all captured. This struggle became known
as the Guerrilha do Araguaia. From the 62 people known as victims in those conflicts,
the remains of only two of them were found and identified. Only after decades
and an indefatigable effort from researchers, journalists and relatives of the
missing dissidents, the Guerrilla was brought to public knowledge. This article
analyses the Brazilian Federal Supreme Court’s (FSC) Non-compliance Action of
Fundamental Principle No. 153 Judgment on the constitutionality and
conventionality of the 1979 Amnesty Law. And, by confronting the complaint
dismissing decision (and the reasons presented by the judges) with the
Inter-American Court of Human Rights’ (IACtHR) Gomes Lund et al. (Guerrilha do
Araguaia) v. Brazil judgment, it is possible to point that the first FSC
decision on the 1979 Amnesty Law might have been mistaken, and to evidence the
important role that the IACtHR has played in the Inter-American System: the
IACtHR has reached a state of art that remedies some states’ “politics of
forgetting” by giving back to the victims their (once stolen) juridical and
qualified status.
Perspectives on the Interplay
between the Inter-American Court of Human Rights and the International Criminal
Court
N. Pons, D. Đukić
Abstract: After
recalling the importance of the contemporary coexistence of human rights bodies
and international criminal tribunals as instruments enforcing fundamental
rights, the authors discuss in what manner the Inter-American Court of Human
Rights and the International Criminal Court have benefitted from each other’s
jurisprudence in the interpretation and application of their own legal texts.
Subsequently, the authors discuss the future interplay between the two
institutions with a view to highlighting the benefits and obstacles associated
with such interaction.
The Identification of Victims before
the Inter-American Court of Human Rights and the International Criminal Court
and its Impact on Participation and Reparation: A Domino Effect?
D. Contreras-Garduño, J. Fraser
Abstract: This
article analyses the evolving position of victims in international law by
comparing the identification of victims before the Inter-American Court of
Human Rights and the International Criminal Court. The article discusses the
concept of victims, the approaches of both Courts to causality requirements
between the harm suffered and the violation/crimes alleged, and the recognition
of direct and indirect victims. The procedures employed by both Courts to identify
victims within their jurisdictions are analysed, highlighting distinctions
between the procedures adopted for the purposes of participation as compared to
reparation. Conclusions are drawn regarding the evolving and expanding law and
practice regarding victim identification and its impact on both Courts.
H. De Vylder
Abstract: States
often commit human right violations outside the borders of their own territory.
Whereas different regional human rights supervisory bodies already attributed
responsibility in such cases, the Inter-American Court of Human Rights (IACtHR)
has not addressed extraterritorial acts yet. This article aims to suggest how
the IACtHR might rule on the territorial scope of the ACHR. For this reason,
this contribution examines the framework of jurisdiction included in the ACHR
by using the principles of interpretation in the Vienna Convention on the Law
of Treaties. In order to set out the ordinary meaning and purpose of “
jurisdiction”, the case law of the Inter-American Commission on Human Rights
(IACommHR) and the European Court of Human Rights (ECtHR) concerning the
concept of “ jurisdiction” will be scrutinized and compared. Next, the Travaux
Préparatoires of the ACHR will be analysed as a supplementary means of
interpretation. Questions that will be addressed in order to delineate the
jurisdiction include, inter alia, (i) the basis of the jurisdiction: control
over a territory or rather over a person, (ii) the possibility of jurisdiction
for instantaneous acts, (iii) the possibility to divide and tailor the
responsibility to ensure compliance with rights and freedoms over different
member states, and (iv) the spatial limits of the jurisdiction. The article
will conclude that the seemingly broad contrast between the ECtHR, which
employs most oft en a limited territorial notion of jurisdiction, and the
IACommHR, which bases its concept of jurisdiction on control over a person, may
not be overestimated. However, in the light of the evolutive interpretation of
the ACHR it seems logical for the IACtHR to use the wider personal notion of
control in order to establish jurisdiction.
S. Vannuccini
Abstract: This
article centres on the topic of the implementation process of the IACtHR’s
judicial decisions adopted within the framework of the system of individual
petitions of the ACHR, by delving into the degree of actual compliance with
final condemnatory judgments and the reasons why member states may not
implement in practice these judgments, with a special focus on those ordering
non-pecuniary reparations, rather than on those fixing monetary damage. The
reason of this selective choice resides in the fact that execution by the
responsible states of the IACtHR’s innovative, extensive and detailed equitable
remedies – or injunctive orders – creates more difficulties than that of
compensatory orders, invokes action by more disparate domestic actors
(especially legislators, executives, judges and judicial systems), and makes
compliance challenging.
V. David
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