Justiciability of economic, social, and cultural rights in the inter-American system of protection of human rights: Beyond traditional paradigms and notions

Human Rights Quarterly

Volumn 29, Issue 2, 2007, Pages 431-459

  Tinta, Mónica Feria ^a  

^a Public International Law ^*

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; INTEGRATED APPROACH; INTERNATIONAL LAW; SOCIAL JUSTICE;

EID: 34249939245     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2007.0024     Document Type: Article

References (116)

1. E.W Vierdag, The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights, 9 NETHERLANDS Y.B. INT'L L. 69 (1978);
2. Marc Bossuyt, La distinction juridique entre les droits civil et politiques et les droits economiques, sociaux et culturels, 8 REVUE DES DROITS DE L'HOMME 783, 789-91 (1975);
3. G.J.H. van Hoof, The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views, in THE RIGHT TO FOOD (Philip Alston & Katarina Tomasěvski eds., 1984) reproduced in HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 279-83 (1996).
4. See also Philip Alston & Gerard Quinn, The Nature and Scope of State Obligations under the International Covenant on Economic, Social, and Cultural Rights, 9 HUM. RTS. Q. 156 (1987);
5. Martin Scheinin, Economic and Social Rights as Legal Rights, in ECONOMIC SOCIAL AND CULTURAL RIGHTS (Asbjørn Eide, Catarina Krause & Allan Rosas eds., 2001).
6. Scheinin, supra note 1, at 29, emphasis added.
7. Id. at 31, citing Philip Alston, No Right to Complain About Being Poor: The Need for an Optional Protocol to the Economic Rights Covenant, in THE FUTURE OF HUMAN RIGHTS PROTECTION IN A CHANGING WORLD 86 (Asbjørn Eide & Jan Helgesen eds., 1991).
8. ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 99-100 (1994).
9. Id. at 99.
10. Id. at 100.
11. See United Nations Secretary-General comments as quoted by Asbjørn Eide, The Right to Food (Final Report), ¶39, U.N. Doc. E/CN.4/Sub.2/1987/23 (1987).
12. CESR was the first international human rights NGO to focus on violations of the rights to health, housing, food, education, and work resulting from poverty and economic exploitation.
13. See, e.g., the case of Human Rights Watch which only recently started to address economic, social, and cultural rights in its reports. Today it can be read in its website: available at http:// www.hrw.org/doc/?t=esc.
14. See Eide, supra note 7.
15. As pointed out by Eide in his seminal report, the indivisibility and interdependence of the two sets of human rights has been a fundamental tenet of the United Nations doctrine on human rights as reflected most notable in General Assembly Resolution 32/130. See id. ¶40.
16. HIGGINS, supra note 4, at 99.
17. Id. at vi.
18. See, e.g., Mónica Pinto, Los derechos económicos, sociales y culturales y su protección en el sistema universal y en el sistema interamericano, 40 REVISTA INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS 26-86 (2004).
19. See also Manuel E. Ventura Robles, jurisprudencia de la Corte Inter-Americana de Derechos Humanos en materia de derechos económicos, sociales y culturales, 40 REVISTA INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS 87-131 (2004).
20. This view was expressed for example by Juan Carlos Gutierrez, Los derechos económicos, sociales y culturales en las sentencias cle reparaciones emitidas por la Corte Interamericana de Derechos Humanos, Paper presented at the symposium "The Inter-American Court of Human Rights at 25 Years of Existence," organized by the Instituto de Investigaciones Jurídicas, Universidad Nacional Autónoma de Mexico (25-26 Oct. 2005).
21. For a sound source of the general principles governing State Responsibility, refer to the Draft Articles on Responsibility of States for International Wrongful Acts with their commentaries as adopted by the International Law Commission. For an excellent compilation of such work see JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY (2002).
22. Id. art. 2, at 81.
23. Id. art. 31, ¶1, commentaries, at 201-06; art. 30, commentaries, at 196-200; 211-41.
24. Id. at 254-60.
25. Id. at 254.
26. However, this does not affect the fact that any state party to a human rights convention may well be entitled to invoke the responsibility of another state for the breach of an obligation enshrined in that convention in detriment of individuals who are the beneficiaries of those rights.
27. For an interesting analysis of these views see van Hoof, supra note 1.
28. Id. at 106.
29. Id. at 107.
30. Id.
31. See Committee on Economic, Social and Cultural Rights: Report on the Fifth Session, Supp. No. 3, Gen. Comment No. 3, U.N. Doc. E/1991/23 (1990).
32. Id. ¶10.
33. Id.
34. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, ¶70, U.N. Doc. E/CN.4/1987/17 (1987).
35. General Comment No. 9, Report of the Committee on Economic, Social and Cultural Rights,, 19th Sess., ¶10, U.N. Doc. E/C.12/1998/24 (1998).
36. Id.
37. Id. ¶9.
38. General Comment No. 12, Report on the Committee on Economic, Social and Cultural Rights, 20th Sess., ¶32, U.N. Doc. E/2000/22 (1999), The Right to adequate Food, (art. 11 of the International Covenant on Economic, Social and Cultural Rights).
39. General Comment No. 14, Report on the Committee on Economic, Social and Cultural Rights, 22d Sess., ¶59, U.N. Doc. E/C.12/2000/4 (2000), The Right to the highest attainable standard of health (art. 12 of the International Covenant on Economic, Social and Cultural Rights).
40. General Comment No. 12, supra note 33, ¶4.
41. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 20 HUM. RTS. Q. 691, ¶4 (1998).
42. Id. ¶20.
43. The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law. Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser A) No. 16, ¶113 (1 Oct. 1999),
44. cited in Villagrán Morales et al case, Inter-Am. Ct. H.R. (ser C), No. 63., ¶192 (19 Nov. 1999).
45. Protocol of San Salvador, entered into force 16 Nov. 1999. It consists of twenty-two articles on economic, social and cultural rights which complement the American Convention. As of May 2001 the following countries had ratified it: Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico Panama, Paraguay, Peru, Suriname, and Uruguay.
46. The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, supra note 38, ¶193.
47. Article 29 of the American Convention reads: Restrictions Regarding Interpretation Article 29 No provision of this Convention shall be interpreted as: (a) permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein; (b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party; (c)precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or (d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have. See American Convention on Human Rights, 1969, in BASIC DOCUMENTS ON HUMAN RIGHTS 507 (3d ed. 1992 ).
48. Id.
49. The Villagrán Morales et al case, supra note 38.
50. Id. ¶192. The Inter American Court referred to this principle of evolutive interpretation in its construction of Article 19 of the Convention in its first decision concerning Article 19.
51. Id. ¶184.
52. See id. Joint Concurring Opinion of Judges A.A. Cançado Trindade & A. Abreu-Burelli, ¶3.
53. Id. ¶196.
54. Id.
55. Id. ¶145, referring to the United Nations Human Rights Committee, General Comments 6/1982, ¶3; General Comment 14/1984, ¶ 1.
56. Id. ¶146.
57. Id. ¶144.
58. Id. footnote omitted, ¶191.
59. Id. ¶146.
60. Int-Am. Ct H. R., Series A: No 17; Advisory Opinion OC-17/2002 (28 Aug. 2002), requested by the Inter-American Commission On Human Rights.
61. Id. at 80. In its Opinion 5 the Court held in that respect that "to care for children, the State must resort to institutions with adequate staff, appropriate facilities, suitable means, and proven experience in such tasks." Id. at 79.
62. Id. at 84.
63. Id. at 87.
64. Id. Opinion 8, at 80.
65. Int-Am. Ct H. R., Series C: Decisions and Judgments No. 112; Case of the Juvenile Reeducation Institute v. Paraguay (2 Sept. 2004) (available in Spanish only) [hereinafter Instituto del Menor Panchito López case).
66. Id. ¶149.
67. Id. ¶170.
68. Id. ¶174.
69. Id. Point 11, at 153.
70. Int-Am. Ct H. R., Caso de las NiZas Yean y Bosico v. República Dominicana (8 Sept. 2005) (available in Spanish only).
71. Id. ¶185.
72. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. C.H.R., Ser. C No. 79 (31 Aug. 2001).
73. Inter-Am Ct H. R., Series C No. 125, Caso Comunidad indígena Yakye Axa vs Paraguay (17 June 2005) (available in Spanish only).
74. Id. ¶67. (Author's translation.)
75. Id. ¶68. (Author's translation.)
76. Int-Am Ct. H.R., Series C No. 124, Case of Moiwana Village v. Suriname (15 June 2005).
77. Id ¶86(6).
78. Id. ¶120 of the judgment reads: [T]he State has failed to both established conditions, as well as provide the means that would allow the Moiwana community members to return voluntarily, in safety and with dignity, to their traditional lands, in relation to which they have a special dependency and attachment and there is objectively no guarantee that their human rights, particularly their right to life and to personal integrity, will be secure. By not providing such elements - including foremost an effective criminal investigation to end the reign of impunity for the 1986 attack - Suriname has failed to ensure the rights of the Moiwana survivors to move freely within the State and to choose their place of residence. Furthermore, the State has effectively deprived those community members still exiled in French Guiana of their right to enter their country and to remain there.
79. Five Pensioners v. Peru, Inter-Am C.H.R., Series C No. 98 (28 Feb. 2003).
80. Baena Ricardo et al. Case, Inter-Am C.H.R., Series C No 72 (2 Feb. 2001)
81. Case of Acevedo-Jaramillo et al. v. Peru, Inter-Am C.H.R., Series C No. 144 (7 Feb. 2006) (available in Spanish only).
82. Under the pension system chosen by the victims, governed by Decree Law No. 20530, the state recognized the victims right to a retirement pension, progressively equalized with the salary "of the active public servants in the respective categories" who occupied the same position or a similar function to that occupied by the pensioner when they ceased to work for the Superintendency of Banks and Insurance. See Five Pensioners v. Peru, supra note 73, Proven Facts, ¶88(d).
83. Id. ¶88(e).
84. Id ¶122(f).
85. Id ¶83(a) (Statement by Carlos Torres Benvenuto).
86. Id ¶92(f).
87. Id ¶98.
88. Id ¶116.
89. Id ¶143 (c).
90. Id ¶147(a).
91. Id ¶147.
92. Article 2 reads: Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provision the State parties undertake to adopt in accordance with their constitutional processes and the provisions of this Convention, such legislative and other measures as may be necessary to give effect to those rights or freedoms.
93. Five Pensioners v. Peru, supra note 73, ¶165.
94. Baena Ricardo et al. Case, inter-Am C.H.R., Series C No. 72, ¶¶ 156-58 (2 Feb. 2001).
95. Id.
96. Id ¶134.
97. Id ¶106.
98. Id ¶160.
99. Id ¶162.
100. Id ¶166.
101. In the Baena Ricardo et al case, the Commission alleged the applicability of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights based on the argument that through the application of Law 25 the state affected the exercise of the right to organize and join trade unions freely (one of whose expressions is the right to strike which is guaranteed by Article 8 of the said Protocol). The Court referred to its competence to apply human rights treaties other than the American Convention in construing the provisions of American Convention only, except for cases where another international instrument ratified by the states granted it the competence to hear cases of violations to the rights protected by the same instrument (some regional instruments do). In the case at stake Panama had signed the San Salvador Protocol by 1988 and as a result, the Court pointed out that, at the time of the events it had the duty not to act against the object and the purpose of the Protocol of San Salvador. Id. ¶ ¶95-99.
102. Five Pensioners Case, supra note 73, Concurring Opinion of Judge A.A. Cançado Trindade, ¶22.
103. José Pereira v. Brazil, Case 11.289, Report No. 95.03, Inter-Am. C.H.R. OEA/Ser.L/V/II.118 Doc.70 rev.2 at 602 (2003).
104. Seasonal agricultural workers were recruited with fraudulent promises by private parties only to be deprived of their liberty in agricultural sites by pure violence and a scheme of indebtedness similar to those of colonial times. No minimum wages or working conditions applied and they worked in the fields under the supervision of armed men. See id. ¶14-16.
105. Id ¶24. A number of cases concerning indigenous populations have also found in friendly settlements a way to address the violations. Indeed, friendly settlements may count as a procedural mechanism in its own right as a way to make economic, social, and cultural rights justiciable.
106. Five Pensioners Case, supra note 73, Concurring Opinion of Judge A.A. Cançado Trindade, ¶22.
107. Case of Aloeboetoe et al. v. Suriname, Reparations, Inter-Am Ct H.R. (ser C) No. 15, at 24 (10 Sept. 1993).
108. See Baena Ricardo et al case, supra note 88.
109. See Katarina Tomasěski, Human Rights and Poverty Reduction, Strengthening Pro-Poor Law: Legal Enforcement of Economic and Social Rights 8 (Jan. 2005), available at http://www.odi.org.uk/rights/ Meeting%20Series/EcoSocRights.pdf (emphasis added).
110. See Instituto del Menor Panchito López, supra note 59, ¶316.
111. Id ¶317.
112. Case of Cesti Hurtado v. Peru, Reparations, Inter-Am Ct. H.R. (ser. C) No. 78, ¶46 (31 May 2001).
113. See Caso Masacre Plan de Sánchez v. Guatemala, Reparaciones, Inter-Am Ct. H. R. (ser C) No. 116, ¶110 (19 Nov. 2004).
114. Id ¶111.
115. Jorge Odir Miranda Cortez et al v. El Salvador, Case 12.249, Report No. 29/01, OEA/Ser. L/II. 111 Doc. 20 rev. at 284 (2000).
116. See Provisional Measures request in the case of Máximo Aparco Huincho v. Perú before the Inter-American Commission on Human Rights (on file with the author) in the matter of Juarez Cruzatt and others v. Perú (Caso del Penal Miguel Castro Castro v. Peru) (at the time of drafting this article, pending before the Inter-American Court of Human Rights).