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«Fostering Human Rights among European Policies Large-Scale FP7 Collaborative Project GA No. 320000 1 May 2013-30 April 2017 Report on the EU’s ...»

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FRAME Deliverable No. 5.6 The process before the IACHR then continues with the procedure on the merits including the consideration of additional information, conducting a hearing and in some cases an on-site investigation. After that, ‘[…] if the parties cannot reach a friendly settlement, the IACHR publishes a report with recommendations to the State including a timeframe for implementation […]’.63 The reports of the IACHR are not binding, but the IACHR still monitors its compliance in a regular way. In addition, non-compliance with the recommendations made in the report allows the IACHR to present a case before the IACtHR if the respective state has accepted the jurisdiction of the Court. The IACHR has some selection criteria to decide if it brings a case before the IACtHR. These criteria include: the interest of the petitioner in the submission of the case, ‘the nature and seriousness of the violation;

the need to develop or clarify the case-law of the system; and the future effect of the decision within the legal systems of the Member States’.64 Finally, according to Art. 25 of the IACHR’s Rules of Procedure, the IACHR can order states to adopt precautionary measures in cases of grave and urgent situations to prevent irreparable human rights violations. The IACHR can adopt such measures on its own initiative or at the request of an involved individual.

b) The Inter-American Court of Human Rights The IACtHR is the judicial branch of the IASHR. According to Art. 1 IACtHR Statute,65 it is ‘an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights’.66

–  –  –

seven judges, nationals of the member states of the OAS, elected in an individual capacity from among jurists of the highest moral authority and of recognised competence in the field of human rights, who possess the qualifications required for the exercise of the highest judicial functions under the law of the State of which they are nationals or of the State that proposes them as candidates.67 Additionally, Art. 5 IACtHR Statute indicates that ‘the judges of the Court shall be elected for a term of six years and may be re-elected only once. A judge elected to replace a judge whose term has not expired shall complete that term’.

The IACtHR has a President, a Vice-President, a Secretary and an Assistant Secretary.68 According to Art. 3 IACtHR Statute, ‘the seat of the Court shall be San José, Costa Rica; however, the Court may convene in any member state of the OAS when a majority of the Court considers it desirable, and with Mayrhofer and others (n 39) 33.

IACHR Rules of procedure art 45.

OAS, ‘Statute of the Inter-American Court of Human Rights’ General Assembly Res AG/Res 448 (La Paz, October 1979) (IACtHR Statute).

For detailed information about the procedure and case law of the IACtHR see eg Jo M Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2nd ed, CUP 2013); Laurence Burgorgue-Larsen and Amaya Ubeda de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (OUP 2011).

IACtHR Statute art 4.

IACtHR Statute art 12-14.

FRAME Deliverable No. 5.6 the prior consent of the State concerned’. In that sense, the Court holds regular and special sessions in San José (Costa Rica) and in other OAS member states.69 (2) Role and jurisdiction Similar to the IACHR, the role of the IACtHR varies depending on the situation of the state in the IASHR.

Not all OAS member states have accepted the jurisdiction of the IACtHR. Thus, the IACtHR has jurisdiction only over states which not only signed and ratified the ACHR, but also accepted the

jurisdiction of the IACtHR according to the procedure described in Art. 60 ACHR:

1. A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.

2. Such declaration may be made unconditionally, on the condition of reciprocity, for a specified period, or for specific cases. It shall be presented to the Secretary General of the Organization, who shall transmit copies thereof to the other member states of the Organization and to the Secretary of the Court.

3. The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it, provided that the States Parties to the case recognize or have recognized such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by a special agreement.70

In the Velazquez-Rodriguez case, the IACtHR affirmed the scope of its jurisdiction and competence:

[...] the Court, in the exercise of its contentious jurisdiction, is competent to decide ‘all matters relating to the interpretation or application of (the) Convention’ [...] The broad terms employed by the Convention show that the Court exercises full jurisdiction over all issues relevant to a particular case. The Court, therefore, is competent to determine whether there has been a violation of the rights and freedoms recognized by the Convention and to adopt appropriate measures. The Court is likewise empowered to interpret the procedural rules that justify its hearing and to verify compliance with all procedural norms involved in the ‘interpretation or application of (the) Convention’. In exercising these powers, the Court is not bound by what the Commission may have previously decided; rather, its authority to render judgment is in no way restricted. The Court does not act as a court of review, of appeal or other similar court in its dealings with the Commission. Its power to examine and review all actions and decisions of the Commission derives from its character as sole judicial organ in matters concerning the Convention. This not only affords greater protection to the human For regular sessions, see Rules of Procedure of the Inter-American Court of Human Rights (adopted 16-25 November 2000, partially amended 19-31 January 2009) (IACtHR Rules of procedure) art 11: ‘the Court shall hold the regular periods of sessions necessary for the exercise of its functions on the dates decided by the Court during the previous regular session. In exceptional circumstances, the Presidency may, in consultation with the

other Judges, change the dates of the sessions’. For special sessions see IACtHR Rules of procedure art 12:

‘Extraordinary sessions may be convened by the Presidency on his or her own initiative or at the request of a majority of the Judges’. For session in OAS Member States, see IACtHR Rules of procedure art 13: ‘the Court may convene in any Member State when a majority of the Court considers it desirable, with the prior consent of the State concerned’.

ACHR art 60.

FRAME Deliverable No. 5.6 rights guaranteed by the Convention, but it also assures the States Parties that have accepted the jurisdiction of the Court that the provisions of the Convention will be strictly observed [...].71 Based on this approach, the IACtHR should be considered as an independent judicial organ, whose task is to protect human rights in the American continent. It is also important to note that the IACtHR can receive cases directly from the states, in addition to those presented by the IACHR.72 The Court can adopt provisional measures to avoid irreparable damage to persons in cases of extreme gravity

and urgency.73 In addition, the IACtHR issues advisory opinions. Art. 64 ACHR provides that:

1. The member states of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, may in like manner consult the Court.

2. The Court, at the request of a member state of the Organization, may provide that state with opinions regarding the compatibility of any of its domestic laws with the aforesaid international instruments.74 This scope of activity of the IACtHR covers all OAS member states, including those who did not recognise the jurisdiction of the IACtHR and/or did not ratify the ACHR. The possibility of applying the advisory jurisdiction also in those states that have not ratified the ACHR grants the IACtHR broad

power. It has been described by the IACtHR in the following way:

Article 64 of the Convention confers on this Court an advisory jurisdiction that is more extensive than that enjoyed by any international tribunal in existence today. All the organs of the OAS listed in Chapter X of the Charter of the Organization and every OAS Member State, whether a party to the Convention or not, are empowered to seek advisory opinions. The Court's advisory jurisdiction is not limited only to the Convention, but extends to other treaties concerning the protection of human rights in the American States. In principle, no part or aspect of these instruments is excluded from the scope of its advisory jurisdiction. Finally, all OAS Member States have the right to request advisory opinions on the compatibility of any of their domestic laws with the aforementioned international instruments.75 Finally, besides the advisory opinions, the IACtHR jurisprudence also affects the legal practice of the states that are OAS members, but did not accept the jurisdiction of the IACtHR. This takes place through the use of the IACtHR jurisprudence in the reports of the IACHR. In recent years, the IACHR has invoked the jurisprudence of the IACtHR as a guideline for interpretation of the ACHR, the obligations that derive from it and the provisions of other human rights treaties. Thus, one can find Velasquez Rodriguez v. Honduras (Preliminary Objections Judgment) Inter-American Court of Human Rights Series C No 1 (26 June 1987) para 29.

ACHR art 61(1).

ACHR art 63(2).

ACHR art 64.

‘Other Treaties’ Subject to the Consultative Jurisdiction of the Court (Art. 64 of the American Convention on Human Rights), Advisory Opinion OC-1/82, Inter-American Court of Human Rights Series A No 1 (24 September 1982).

FRAME Deliverable No. 5.6 references to IACtHR rulings also in the reports on the situation of human rights in states that have not accepted the jurisdiction of the IACtHR.

This is possible because, even though classic public international law requires that norms created by sovereign states can be expanded or restricted only by them, modern international law recognizes the special character of human rights: its autonomous character and evolving nature may sometimes separate it from the will of the states.76 In that sense, it has been held that the establishment of erga omnes and jus cogens obligations represents the overcoming of the voluntarist pattern in international law and that international human rights law requires and promotes the transformation of the law of treaties in favor of greater protection of citizens.77 As a consequence of this approach, the IACtHR justifies the widespread use of its case law in relation to states that have not accepted its binding jurisdiction. Finally, the IACtHR also argues that both, the ACHR and the American Declaration, are sources of international law and must therefore be interpreted in harmony. This argument authorizes the IACHR to use IACtHR cases when interpreting and applying the provisions of the American Declaration.

With this conception of human rights law in mind, it is possible to understand how the IACHR regularly refers to the IACtHR interpretations of the ACHR also in the reports of OAS member states that did not recognise jurisdiction of the IACtHR. For instance, in its report on immigration in the United States, the IACHR relied on the interpretation of the IACtHR in relation to the human rights that must inform the immigration policies of the OAS member states.78 In its report on indigenous women in Canada the IACHR referred to the jurisprudence of the IACtHR about the due diligence response to human rights violations and the four obligations that it involves.79

2. The subsidiary human rights bodies of the Organization of American States In addition to the specialised human rights institutions of the OAS examined above, there are a range of other institutions, which deal with human rights issues within the framework of the OAS.

a) The OAS General Assembly Art. 1 OAS Charter enshrines the position of the General Assembly as the supreme organ of the OAS.

Among its principal powers are ‘to decide the general action and policy of the Organization, determine the structure and functions of its organs, and consider any matter relating to friendly relations among the American States’.80 The OAS GA is the main political and diplomatic organ of the OAS. Among other functions, it is in charge of elaborating international norms that guide the OAS’ institutional work. For this reason, the OAS GA can be classified as another organ competent to foster human rights in the American region.

Juan Antonio Carrillo Salcedo, ’Derechos Humanos y Derecho Internacional’ (2000) 22 ISEGORÍA 69, http://isegoria.revistas.csic.es/index.php/isegoria/article/viewFile/522/522.

Blake v Guatemala (Merits) Inter-American Court of Human Rights Series C No 36 (24 January 1998), separate opinion by judge Antônio Augusto Cançado Trindade, para 28-29.

IACHR, ‘Report on Immigration in the United States: Detention and Due Process’, OEA/Ser.L/V/II. Doc. 78/10, 30 December 2010, para 32, www.oas.org/en/iachr/migrants/docs/pdf/Migrants2011.pdf.

IACHR, ‘Missing and Murdered Indigenous Women in British Columbia: Canada’, OEA/Ser.L/V/II.Doc. 30/14, 21 December 2014, para 153, www.oas.org/en/iachr/reports/pdfs/Indigenous-Women-BC-Canada-en.pdf.

OAS Charter art 1.

FRAME Deliverable No. 5.6

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